File 3: ALJ's Decision
[ v57 p860 ]
Office of Administrative Law Judges
DEPARTMENT OF THE AIR FORCE
913TH AIR WING
WILLOW GROVE AIR RESERVE STATION
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R3-32, SEIU, AFL-CIO
Case Nos. BN-CA-00252
Lt. Col. John S. Chamblee, Esquire
Maj. Brian Adams, Esquire
For the Respondent
Edward J. Smith, Esquire
For the Charging Party
Richard D. Zaiger, Esquire
Angela A. Bradley, Esquire
For the General Counsel
Before: RICHARD A. PEARSON
Administrative Law Judge
On August 29, 2000, the General Counsel of the Federal Labor Relations Authority, by the Regional Director of the Boston Region, issued an unfair labor practice complaint, alleging that the Department of the Air Force, 913th Air Wing, Willow Grove Air Reserve Station, Willow Grove, Pennsylvania (the Respondent or the Employer), violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute), by implementing a decision that Lead Guards would assume supervisory duties in the absence of a supervisor, without providing the National Association of Government Employees, Local R3-32, SEIU, AFL-CIO (the Charging Party or the Union), with adequate notice and an opportunity to negotiate. On September 15, 2000, the Regional Director issued a second unfair labor practice complaint, alleging that the Respondent implemented a decision to increase its minimum staffing requirement without providing the Charging Party with an adequate opportunity to negotiate. Subsequently, the two complaints were consolidated. The Respondent filed its answers to the complaints and denied committing any unfair labor practices.
A hearing on this matter was held in Philadelphia, Pennsylvania, on November 8, 2000 at which time all [ v57 p861 ] parties were represented and afforded an opportunity to be heard, to introduce evidence, to examine and cross-examine witnesses, and to submit post-hearing briefs. During the hearing, Counsel for the General Counsel moved to amend the complaint in Case No. BN-CA-00354, alleging that the Respondent has refused to recognize and deal with the Union's designated representative for purposes of receiving notice of changes in working conditions. I granted the motion to amend, and I allowed the Respondent two weeks to submit any additional evidence necessary to rebut the amended complaint. On November 22, 2000, Counsel for the Respondent stated that it did not wish to introduce any additional evidence. The General Counsel, Respondent, and the Union filed post-hearing briefs which I have fully considered.
Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.
FINDINGS OF FACT
The Charging Party is the exclusive representative of a unit of civilian employees at the Willow Grove Air Reserve Station. Some of these unit employees are strictly civilians, while others (Air Reserve Technicians/ARTs), hold full-time civilian positions and part-time positions in the Air Force Reserve. Employees working in their military capacity (including ARTs while on active duty) are excluded from the bargaining unit. Prior to October 2000, there were approximately 240 employees in the bargaining unit, 43 of whom were employed in the 913th Air Wing's Security Forces Squadron, which provides security and law enforcement for the base.
The operations section of the Security Forces Squadron performs the base security functions through three shifts, each of which has ten positions: a GS-8 shift supervisor, a GS-7 assistant shift supervisor, one GS-6 Lead Guard, two GS-6 controllers, and five GS-5 Guards. Major Francis Locascio, an ART who simultaneously serves in his civilian capacity as the base's Chief of Security Forces and in his military capacity as Commander of the 913th Security Forces Squadron, has supervised these activities since February 1, 1999.
Cynthia Fullenwellen, an employee in the base's Finance Department, has been President of Local R3-32 since 1996. Among her other duties as Union President, she directs the activities of the Union's stewards and she is the Chief Executive Officer for the Union. There are two Union stewards representing employees in the Security Forces Squadron, Mark Williams and Maurice Williams.
At all relevant times, the Respondent and the Union have been parties to a collective bargaining agreement (CBA). The most recent CBA, dated February 22, 1996, contains the following provision at Article 3, Section 4, Matters Appropriate for Consultation or Negotiation:
The Employer will notify the Union in writing of proposed changes in conditions of employment of unit employees. The Union shall have a reasonable time but not less than ten (10) workdays to request negotiations and submit written proposals. If written proposals are not received within the time designated, it will be considered that the Union is in agreement and the change will be implemented. (Jt. Exh. 4).
The Change in Lead Guard Responsibilities
On approximately February 11, 2000 [n1] , Major Locascio spoke to the base's Civilian Personnel Officer, William DeSantis, about a policy change he intended to make. Reacting to a command-wide initiative to reduce the amount of overtime, Major Locascio decided that Lead Guards should be authorized to act as shift supervisor in the absence of the permanent supervisor and assistant supervisor. (This would reduce the need to call in one supervisor at the last minute, when the other supervisor is unable to work.) Apparently such a practice had been in existence at some time prior to Major Locascio's assumption of command, but Lead Guards had not been so authorized since at least February 1999. Major Locascio showed Mr. DeSantis a memo he had drafted to announce the change (Jt. Exh. 1). The memo, dated February 11, was addressed to "all personnel" and began: "Effective immediately, all Lead Guards will assume Shift Supervisor duties in the absence of the Shift Supervisor GS 8 or the Assistant Shift Supervisor GS 7."
Mr. DeSantis advised Major Locascio that although this represented a resumption of an old policy, it constituted a change that obligated them to give the Union notice and an opportunity to bargain. They therefore agreed that Major Locascio would give a copy of the memo to a Union steward and that the memo would not be distributed to the security force or implemented until the Union had a chance to bargain on the issue. [ v57 p862 ] Notwithstanding their agreement to delay implementation and publication of the memo, they did not change the language of the memo that the new Lead Guard responsibilities would be "effective immediately."
On February 14, Union steward Mark Williams was called into Major Locascio's office and given a copy of the February 11 memo concerning the change in Lead Guard responsibilities. Mr. Williams works the evening shift, from approximately 4 p.m. to midnight; he was beginning his shift as Major Locascio was ending his own work day. The two men spoke briefly on February 14 about the Lead Guard memo, although their accounts of the conversation differ. According to Mr. Williams, he looked at the memo, saw that it constituted a change, and told the commander, "you've got to send it up to Cynthia Fullenwellen . . ." (Tr. at 43). According to Williams, Major Locascio said, "no, no, that's just what she wants." According to Major Locascio, Williams took the memo and asked why the change was being made. When the commander said that it was to curtail overtime use, Williams allegedly replied, "okay, that's not a Union issue," and left the office (Tr. at 290). Major Locascio made a hand-written notation of Williams' response on his own copy of the memo (Jt. Exh. 1).
After receiving the February 11 memo on the 14th, Mark Williams forgot about it until February 16, when he faxed a copy of the memo to Union President Fullenwellen and to the Union's national representative, Harry Breen. Both Fullenwellen and Breen contacted Major Locascio on February 17 to protest his failure to send the notice directly to the Union President, and a meeting was scheduled for later that same day.
All witnesses agreed that the issue of notifying the Union President of changes was not a new dispute. While the Union and Employer witnesses gave differing accounts as to what, if any, "past practice" existed in regard to Employer notification of changes to the Union, they all agreed that Ms. Fullenwellen had been insisting, long before February 2000, that the Employer was required to send Union notices to her as President. Thus Mr. DeSantis testified that shortly after he came to Willow Grove in January 1999, the Union had protested its not being informed of a formal discussion concerning the base's possible loss of airplanes (Tr. at 205-06, 244-47). Mr. DeSantis told the Union representatives at the time that the Employer was simply required to notify "the Union," not any particular official of the Union; moreover, Mr. DeSantis felt that matters were best handled by "the personnel that are affected by that issue," and that it was "an internal Union problem" for the Union representatives to communicate on such matters (Tr. at 246-47). Ms. Fullenwellen traced the issue back at least to 1998 (prior to the arrival of Mr. DeSantis and Major Locascio on the base), when Respondent representatives had agreed at a joint labor-management training session to send all Union notices to the President (Tr. at 155-59). She testified that she had repeatedly advised management that all notices were to be sent to her, and not to her stewards, but that the Respondent frequently disregarded this instruction (Tr. at 147).
The February 17 meeting, attended by DeSantis and Locascio for the Employer and by Fullenwellen and Breen for the Union, was highly contentious and unproductive. The meeting began with Mr. Breen insulting Major Locascio for having moved from a union to a management position, and it became more heated on the issue of notifying the Union of changes. The Union insisted that notices be sent to Ms. Fullenwellen, but DeSantis and Locascio insisted that they could fulfill their obligation by notifying any representative of "the Union."
The Union and Employer witnesses agree that the Union did not offer any specific bargaining proposals concerning the impact and implementation of the Lead Guard change at the February 17 meeting or at a later date. Union witnesses Fullenwellen and Mark Williams testified that they believed the change in Lead Guard duties took effect on February 11, as the February 11 memo stated it would, and that management never advised them that the implementation of that policy was being delayed pending negotiations with the Union. Similarly, neither of the Respondent's witnesses, DeSantis or Locascio, testified that they specifically told any Union official that the text of the February 11 memo (i.e., that the new Lead Guard duties were "effective immediately") was wrong. As a result, when the February 17 meeting broke up, the Union believed that the new Lead Guard duties had already been put into effect, even though it appears that in fact the policy change did not become effective until April 1. [n2] The Union filed its unfair labor practice charge concerning this issue on February 22.
As a result of the change in their responsibilities, Lead Guards now assume supervisory duties on those days when neither a shift supervisor nor an assistant supervisor is able to work. As noted in Major Locascio's [ v57 p863 ] February 11 memo, this required the shift supervisors to train their Lead Guards concerning their additional duties. While many of the Lead Guards may have been familiar with these requirements from the earlier times when such a policy had been in effect, it appears that some of the Lead Guards required additional training or refresher training. The duties of a shift supervisor include conducting Guard Mount, or briefing employees at the start of a shift; reviewing incident reports; overseeing all activities during the shift; and ensuring that employees who call in sick are replaced and that all security posts are staffed by appropriate personnel.
The Change in the Minimum Staffing Requirement
In early March, Major Locascio discussed with Mr. DeSantis his need to increase (from four to five) the number of security personnel assigned to specific posts on each shift. While the precise reasons for the change are not explained in the record, it appears that Major Locascio felt compelled by higher authority to make the change. [n3] As in the case of the Lead Guards, Major Locascio brought a draft of a memo on the subject to his meeting with Mr. DeSantis: this was a memo dated March 9 and addressed to the supervisory staff in the Security Squadron, titled "Manning, Posting and Supervisor Responsibilities" (Jt. Exh. 2). The first page of the memo lists the employees on each shift, and the second page describes how the various security posts on the base are to be assigned. It does not explicitly mention whether any of these procedures constitute changes from existing procedure, nor does it mention an effective date. As in the case of the Lead Guards, Mr. DeSantis advised Major Locascio that a bargaining period with the Union was required, and that a copy of the draft memo should be given to the Union.
Major Locascio further testified that he saw Union Steward Maurice Williams in the early morning of March 13 and gave Williams a copy of the March 9 memo. Williams allegedly told Locascio that he would give a copy of the memo "to Cynthia," that is, to the Union President. Later that same day, Locascio testified, Union Steward Mark Williams called him and asked about the memo, and Locascio briefly explained to him what the memo covered. On March 27, since neither Locascio nor DeSantis had received any response from the Union concerning the staffing memo, they decided that it would be appropriate to implement the staffing and posting changes as of April 1. Based on this conversation, Major Locascio drafted a memo to all squadron employees announcing the changes (Jt. Exh. 3). In fact, this memo, which was posted on the squadron's bulletin board, announced the implementation of the change in Lead Guard responsibilities as well as the increase in minimum staffing from four to five.
The Union witnesses gave a different account of these events. Both Mark Williams and Ms. Fullenwellen denied having any knowledge or receipt of the March 9 memo. According to them, they first learned of the Respondent's proposed increase in security post staffing when the March 27 memo was posted on the bulletin board. Mark Williams denied having any conversation with Major Locascio on or about March 13 on this issue. When he saw the March 27 memo on the bulletin board, Mark Williams said, he asked fellow steward Maurice Williams to give a copy to Fullenwellen, and on March 28 Ms. Fullenwellen asked him to send a letter on her behalf to management, demanding the right to bargain. Ms. Fullenwellen echoed this testimony, explaining that she had never heard about any increase in security staffing prior to March 27, and that because she was very busy with other bargaining issues at that time, she told Mark Williams to send a demand to bargain to management. Maurice Williams did not testify, so we do not have his account of whether Major Locascio gave him the memo on March 13.
All witnesses agree, however, that Mark Williams then sent a letter to Major Locascio (dated March 31 and received by the commander on April 1), asserting the Union's right to bargain over the impact and implementation of the changes announced in the March 27 memo; the letter further requested that management delay the implementation of the changes pending such bargaining (Resp. Exh. 4). On April 4, Major Locascio replied to the Union, stating that he would discuss any proposals the Union might have on the issues but that he would not delay implementation of the changes (Resp. Exh. 5). The Union did not reply further, but instead filed its second unfair labor practice charge. [ v57 p864 ]
DISCUSSION AND CONCLUSIONS
Issues and Positions of the Parties
The General Counsel concedes in its brief that the Employer's decisions to assign supervisory duties to Lead Guards and to increase the minimum staffing requirement were reserved to management under section 7106(a)(1) of the Statute. However, it urges that the Employer was obligated to bargain over the procedures and appropriate arrangements for exercising such rights, because these decisions caused more than a de minimis change in the conditions of employment. The General Counsel further argues that the Employer failed to properly bargain before implementing each decision. In the case of the Lead Guards, the February 11 memo declared that the change was being implemented immediately, and the Respondent never clarified to the Union that implementation would be delayed pending negotiations; thus the decision was presented as a fait accompli, rendering negotiations futile. Moreover, when the Union ultimately requested bargaining in its March 31 memo, the Respondent insisted that implementation would proceed on April 1. With respect to the minimum staffing change, the General Counsel argues that the Respondent's March 9 memo (allegedly given to the Union on March 13) did not constitute adequate notice of a change in working conditions, as it was not given to the Union President and it did not properly identify that a change in working conditions was being made. Although the March 27 memo did clearly identify the proposed changes, it was distributed less than a week before the implementation date and was, therefore, inadequate notice under the Statute and the CBA. Finally, the General Counsel asserts that the Respondent's insistence on giving formal notices of changes to Union stewards, contrary to the Union President's insistence that notice be sent to her personally, constitutes an independent violation of section 7116(a)(1) and (5), in that it demonstrates a refusal by the Respondent to recognize the Union's designated representative for this purpose.
For its part, the Respondent argues that the impact of the change in Lead Guard duties was indeed de minimis, and that it therefore had no obligation to negotiate at all concerning that decision. (It does not make the same argument about the minimum staffing increase, apparently conceding its obligation to bargain there.) Notwithstanding the de minimis nature of the Lead Guard change, the Respondent notes that it attempted to negotiate with the Union concerning both decisions, and that by giving notice to Union stewards it was acting consistently with past practice and the CBA. It asserts that the Union was indisputably on notice of the Lead Guard change as of February 17, and the Union's failure to demand bargaining until March 31 constituted a waiver of its bargaining rights under the contract. The Respondent defends the adequacy of its March 9 notice of the minimum staffing change and asserts again that the Union's March 31 demand to bargain came too late to be effective. Finally, the Respondent denies that it has refused to recognize the Union's designated representative, for the same reasons as it defends its giving the February 11 and March 9 memos to the Union stewards: this was the practice established by the parties' actions and the CBA. Moreover, the Respondent denies that the Union has ever clearly designated Ms. Fullenwellen as the sole recipient of notices, since the stewards had both sent and accepted receipt of notices in the past, and thus had apparent authority to receive notices.
The Union's post-hearing brief was limited to the issue of a remedy. Specifically, the Union urges that in order to remedy the Respondent's alleged unfair labor practices, a retroactive bargaining order will be necessary; further, such bargaining may result in backpay to the affected employees. Accordingly, the Union asks that I grant it leave to file a subsequent motion for attorney fees.
Initially, I note again that I granted the General Counsel's mid-hearing motion to amend the complaint in Case No. BN-CA-00354. By amending the complaint, the General Counsel alleges not only that the Respondent implemented changes without proper bargaining but also that Respondent improperly refused the Union's demands to serve notices of change on Ms. Fullenwellen. I granted the motion, because the amendment was closely related to the allegations of the two original complaints, and because it highlighted an issue that had already been identified and disputed by the parties. Indeed, the dispute over providing notice to Ms. Fullenwellen is the common thread behind both of the disputed changes implemented by the Respondent. In its Prehearing Submission, the Respondent identified as part of its defense to BN-CA-00252:
. . . At the 17 February 2000 meeting, the Union complained that notice must be given to its president, but it never indicated a desire to submit proposals on this issue. Despite assertions to the contrary, neither the statute nor the contract requires that notice be given exclusively to the Union president. . . .
Moreover, the motion to amend was made immediately after the testimony of Mr. DeSantis (Tr. at 244-49), which directly addressed the Respondent's knowledge of, and refusal to accede to, the Union's demands that Ms. Fullenwellen be notified of all changes. [ v57 p865 ]
It is clear that the Respondent had fair notice of the issue prior to the hearing, and that it had a full opportunity to litigate the issue and present its position on the matter. Amendment of a complaint is permitted at the hearing. See, e.g., American Federation of Government Employees, Local 2501, Memphis, Tennessee, 51 FLRA 1657, 1663 (1996); indeed, a respondent can even be found to have committed an unfair labor practice without such an amendment, when the respondent was on notice of the issue and had the opportunity to fully litigate it. Air Force Materiel Command, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 54 FLRA 1529, 1531 (1998); Department of Veterans Affairs, Veterans Affairs Medical Center, Washington, DC, 51 FLRA 896, 900 (1996). The test in all such cases is one of "fairness": specifically, whether the respondent "knew what conduct was at issue and had a `fair opportunity' to present a defense." 51 FLRA at 900. In accordance with these principles, amending the complaint here was appropriate.
Next, it is appropriate to review some general principles concerning the duty to bargain. Before implementing a change in conditions of employment affecting bargaining unit employees, an agency is required to provide the exclusive representative with notice of, and an opportunity to bargain over those aspects of the change that are within the duty to bargain. Federal Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas, 55 FLRA 848, 852 (1999)(FBOP). The extent to which an agency is required to bargain over changes in conditions of employment depends on the nature of the change. In some situations, a union may be entitled to bargain over the substance of the actual decision. See, e.g., Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 35 FLRA 153, 155 (1990). When the decision to change a condition of employment is an exercise of a management right under section 7106, the substance of the change is not negotiable, but the agency nonetheless is obligated to bargain over the impact and implementation of the change, if the change has more than a de minimis effect on conditions of employment. FBOP, 55 FLRA at 852. See also, Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 407-09 (1986), which explains how the de minimis standard is applied.
In order to fulfill its statutory obligation, the agency must notify and bargain with the union over a proposed change before the change goes into effect. Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9, 11 (1981)(Scott AFB). This means not only that the union must be notified in advance, but also that the agency must preserve the status quo until the negotiations have been concluded. See, U.S. Department of Justice, Immigration and Naturalization Service, 55 FLRA 892, 902-03 (1999)(INS) and case cited therein. Further, the notice "must be sufficiently specific or definitive regarding the actual change contemplated so as to adequately provide the union with a reasonable opportunity to request bargaining." Ogden Air Logistics Center, Hill Air Force Base, Utah, 41 FLRA 690, 698 (1991)(Hill AFB). A mere passing reference to a change, in a context unlikely to put the union on notice of its meaning, does not satisfy this requirement. Department of the Army, Harry Diamond Laboratories, Adelphi, Maryland, 9 FLRA 575, 576 (1982)(Harry Diamond).
Refusal to Send Notices of Changes to the Union President
Although this allegation was added to the complaint in Case No. BN-CA-00354, I have chosen to discuss it first, because it colors the actions and contentions of both parties with respect to other events in this case. While I would find the Employer's implementation of the Lead Guard and minimum staffing changes to be unlawful, separate and apart from its unlawful refusal to serve change notices on Ms. Fullenwellen, the Employer's misguided efforts to dictate to the Union concerning service of notices exacerbated its errors in implementing those changes.
The Authority has held, in a variety of legal and factual contexts, that agencies and unions each have a statutory right to designate their own representatives, and that an Agency commits an unfair labor practice when it refuses to deal with those representatives. One of the earliest such decisions was American Federation of Government Employees, AFL-CIO, 4 FLRA 272 (1980), in which the Authority held that a union did not commit an unfair labor practice by refusing to negotiate concerning an agency proposal dictating the organizational levels from which union stewards and other representatives must be selected. In finding this proposal to be a permissive subject of bargaining, over which the parties could elect to bargain or not to bargain, the Authority stated: ". . . it is within the discretion of both agency management and labor organizations holding exclusive recognition to designate their respective representatives when fulfilling their responsibilities under the Statute." Id. at 274.
Agencies have been found to commit an unfair labor practice when they pick which union representatives they will do business with, [n4] as well as when they [ v57 p866 ] refuse to deal with certain union-designated representatives. [n5] Although a union may waive its statutory right by negotiating a contractual provision specifying what representatives will handle certain matters, the Authority has narrowly construed such provisions. [n6] While the Authority no longer requires an agency to demonstrate the union's "clear and unmistakable waiver" of its statutory right, the agency must establish by a preponderance of the evidence that the parties' collective bargaining agreement allowed its actions. IRS, 47 FLRA at 1103.
The Respondent argues that its practice of giving change notices to stewards is authorized by Article 3, Section 4, of the CBA and the past practice of the parties. However, the Respondent recognizes that the previously-quoted CBA provision itself "do[es] not specify with particularity to whom within the Charging Party notice of proposed changes in working conditions must be given." (Resp. Brief at 10). Indeed, the CBA simply says that the Respondent must notify "the Union," an obligation similar to the Statute's basic requirement to notify unions of changes in working conditions. Just as the Statute's general mandate to notify unions of changes does not negate a union's right to designate its representatives, Article 3 of the CBA does not limit the Union's right to designate Ms. Fullenwellen (or anyone else it chooses), as its representative for receiving notices of changes in working conditions.
The existence of a past practice regarding the serving of notice to the Union can, however, help clarify the meaning of an ambiguous contract provision. In its IRS decision on remand, the Authority expressly urged administrative law judges to consider such past practices in determining the intent of the parties and in interpreting disputed contract language. IRS, 47 FLRA at 1111. However, the evidence in this case does not shed any light on the disputed meaning of Article 3, Section 4, of the CBA. Rather, the evidence from the hearing reflects inconsistent practices by both management and union, and no mutual agreement concerning the proper method of notifying the Union of changes.
The testimony of witnesses for both sides indicated clearly that Major Locascio preferred to give change notices to the stewards in his department, and that Mr. DeSantis felt it was best for management to deal with the level of the Union hierarchy most directly involved in a disputed issue, but even Major Locascio (according to Ms. Fullenwellen's testimony) had at times sent change notices directly to her (Tr. at 142). In order for a "past practice" to have any binding effect on the parties, it must be a practice accepted by both management and union. [n7] Here, the Union witnesses testified that they had frequently protested management's attempts to communicate changes through the stewards. Although Mark Williams did at times accept the documents proffered to him by Major Locascio, including the February 11 memo, he testified that he told the commander on several occasions that management needed to notify Ms. Fullenwellen directly. Major Locascio and Mr. Williams disputed in their respective testimony as to whether Mr. Williams protested the manner of service of the February 11 memo on February 14, but it is unnecessary to resolve whose testimony is more credible on this issue. Even if, as Major Locascio, testified, Mr. Williams took the proffered memo and simply said, "that's not a Union issue," the record clearly illustrates several occasions on which Union representatives had told the commander or other management representatives that change notices must be sent directly to the Union President.
Indeed, Mr. DeSantis' testimony casts this issue in the most direct and plausible light: he testified that shortly after he began working at Willow Grove in February of 1999, the Union had protested to him and insisted that formal notices should be sent to Ms. Fullenwellen and not to other Union representatives. His testimony made it very clear that he was aware of the Union's position on this point prior to February 2000, and that he disputed the Union's position. Both he and Major Locascio believed that neither the CBA nor Federal law required the Respondent to honor the Union's demand to send notices to Ms. Fullenwellen, and the record amply demonstrates that the Respondent intended to stick to its position, despite the protests of the Union. It was immediately after Mr. DeSantis gave [ v57 p867 ] this testimony that the General Counsel moved to amend the complaint, because this testimony made it clear that the Respondent's actions (in giving change notices to stewards) were not based on confusion or mistake on the Respondent's part, but were part of a deliberate pattern of defying the Union's requests.
Given these facts, the Respondent has failed to establish a "past practice" in which both union and management accepted service on any Union steward as valid notice to the Union itself. While there may have been times when the Union failed to protest a notice being sent to a steward, and there may have been times when stewards themselves wrote to management in response to a notice of change (Resp. Exh. 2, 4), the Union had made its position clear to management that the President herself needed to be sent such notices. Mr. DeSantis' testimony, as noted before, clearly reflects that there was no mutually accepted practice of serving notices on stewards, but rather that the Union had long insisted that Ms. Fullenwellen be served and the Respondent had long refused to abide by that request. Thus, the Respondent cannot use the CBA (either its explicit terms or as reflected by mutual past practice) as a defense to its conduct.
The issue in this case, therefore, is whether the Respondent's repeated refusal to serve change notices on the Union President, despite the Union's designation of her as the only proper recipient of such notice, violates section 7116(a)(1) and (5) of the Statute. I conclude that it does. I have already cited some of the fundamental decisions of the Authority holding that "[a] union's right to designate its own representatives is a statutory right." IRS, 39 FLRA at 1574. The facts of IRS are worth comparing to the facts of the instant case. In IRS, the agency insisted that the CBA required stewards to be members of a particular bargaining unit, and it therefore refused to recognize the Union President's designation of himself as a "steward at large." The IRS didn't refuse to deal with that person as Union President, but simply refused to deal with him as a steward. This is not significantly different from the instant case, in which the Respondent has continued to recognize and deal with Ms. Fullenwellen as Union President but refuses to recognize her as the proper recipient of notices of changes in working conditions. The Authority held that the IRS' conduct constituted a violation of the union's right to designate its representatives, and a similar finding is appropriate in this case.
The Authority has found similar violations in cases where an agency refused to recognize a union-designated observer on a training panel (FDA Region II); refused to deal with a union-designated attorney to handle a grievance (FDA Newark); and insisted on notifying only specific employees and not the union president of meetings of a labor-management committee (Homestead AFB). Perhaps the most persuasive illustration of an agency's obligation to honor a union's designation is United States Department of Transportation, Federal Aviation Administration, 19 FLRA 482 (1985)(FAA). There, a newly certified union notified the agency that, contrary to the practice of its predecessor union and the preceding CBA, all notices of proposed changes in conditions of employment should be sent only to the national union president, rather than to local representatives. The agency, however, continued to send such notices to the local union representatives and not to the national president. The Authority held that this refusal was an unfair labor practice. Id. at 485-86. Even though a clear past practice of notifying local representatives, reinforced by an express CBA provision to that effect, had existed in the FAA case, the Authority held that that was a permissive subject of bargaining, which the newly certified union was entitled to revoke. The new union "expressed its statutory right to designate its own representative by notifying the Respondent that PASS' National President was the representative designated to receive notice . . . ." Id. at 485.
The same principle applies here to the Union's instruction that only Ms. Fullenwellen was designated to receive notices of changes in working conditions. As the Administrative Law Judge stated in Homestead AFB, 13 FLRA at 149-50 (affirmed by the Authority):
There seems to be no question that [management] preferred to deal with Union representatives other than [the president] . . . Simply stated, it is not the business of [management] to make these kind of judgments. Rather, the role of management is to deal with the employees' elected representative, the Union President. . . . What Respondent did here was to usurp the functions of the Union President and determine which Union stewards and officers would be informed of the meetings and invited to attend the meetings.
For the reasons stated in Homestead AFB and in FAA, I conclude that the Respondent violated section 7116(a)(1) and (5) by refusing to send notice of the changes in Lead Guard responsibilities and in minimum staffing to Cynthia Fullenwellen, the Union President. [ v57 p868 ]
The Change in Lead Guard Responsibilities
Stripped to their essentials, the facts concerning this allegation reflect that on February 14 the Respondent gave a Union steward a memo dated February 11, addressed to all employees, which stated that Lead Guards would assume additional responsibilities "effective immediately." The Union President subsequently learned of the memo and met with officials of the Respondent to protest the improper service of the notice, but she did not submit any bargaining proposals relating to the change. At no time prior to March 27 did any management official tell the Union that the changes were not being implemented immediately: that fact became known only when the Respondent posted the March 27 notice on the employee bulletin board and announced that the Lead Guards would assume their new duties as of April 1. On April 1, the Respondent received a bargaining request from the Union but refused to further delay implementation during bargaining.
The Respondent argues that even if Major Locascio's delivery of the February 11 memo to Mark Williams was not valid service on the Union, Ms. Fullenwellen received actual notice on February 17; it further argues that the Union waived its right to bargain on this issue because it waited until April 1 to demand bargaining. While I agree with the Respondent that the Union received actual notice of the change on February 17, I nonetheless conclude that the Union did not waive its right to bargain and that the implementation of the change violated section 7116(a)(1) and (5) of the Statute.
Joint Exhibit 1, the February 11 memo given by Major Locascio to Mark Williams on February 14 and passed on to Ms. Fullenwellen on February 17, informed the Union that the change in Lead Guard duties would take place "immediately." The Respondent's witnesses explained why the memo was worded in that manner, and that they did not intend to implement the change immediately. But their explanations at the hearing are meaningless, unless they also explained these things to the Union. In fact, neither Mr. DeSantis' nor Major Locascio's testimony ever indicated that they communicated to the Union that implementation would be delayed until bargaining had occurred. This is consistent with the testimony of the Union witnesses, who were of the belief that the new policy had gone into effect on February 11. As a result, the February 11 memo, taken at face value and in light of the Respondent's failure to tell the Union that the memo was inaccurate, did not constitute an invitation for the Union to negotiate; rather, the memo was a notification to the Union that the change in working conditions was a fait accompli. This conclusion is further justified by the fact that the memo was addressed not to the Union but to "all personnel." The only reasonable conclusion that a reader of this memo could make was that the change had already occurred, and that it was not subject to negotiation. In the ensuing weeks after the February 11 memo was handed out, the Respondent did nothing to disavow the objective meaning of the memo. As a result, the Union's decision to file an unfair labor practice charge rather than to submit bargaining proposals to the Respondent was understandable and justified.
As I noted earlier, the Statute requires an agency to notify the union before changes in working conditions are made. Scott AFB, 5 FLRA at 23. It is not sufficient to invite the union to submit bargaining proposals after the change has already gone into effect. It therefore doesn't matter whether Mr. Williams told Major Locascio that the change was "not a Union issue." Not only was Mr. Williams unauthorized to receive the notice on behalf of the Union (as discussed in the prior section), but Mr. Williams' words could have no impact on a policy that had apparently been implemented already. Similarly, while Ms. Fullenwellen might have submitted bargaining proposals at her February 17 meeting with Major Locascio, the apparent implementation of the change in Lead Guard duties made such an effort appear to be futile. It was incumbent on the Respondent to make it clear to the Union that the policy would not be implemented until the Union had a full opportunity to bargain; the Respondent had several opportunities to clarify this with the Union, and it never did so. It took until March 27, when it also announced the increase in minimum staffing, for the Respondent to mention that the change in Lead Guard duties would not be implemented until April 1. In this regard, see also U.S. Department of Interior, Bureau of Reclamation, 20 FLRA 587, 599 (1985), in which the agency notified the union and all employees on December 17 that a new policy would take effect on January 1. The Authority found that this notice was inadequate to trigger a requirement that the union submit a demand to bargain, as the notice was directed to all employees and failed to suggest that the policy was subject to discussion or negotiation. Even though the memo was received by union officials two weeks before the announced effective date, it was disseminated as a fait accompli. In the instant case, when the Respondent posted the March 27 memo, which was the first indication that the change in Lead Guard duties had not yet been implemented, the Union submitted a prompt demand to bargain. The Respondent's response, however, was to refuse to delay implementation during bargaining, thus reinforcing the futility of the Union's actions. [ v57 p869 ]
The Respondent's final defense is that the change in Lead Guard responsibilities had a de minimis impact on working conditions. Even Mr. DeSantis did not accept this claim when Major Locascio first discussed it with him, and I agree with Mr. DeSantis on this point. There are three Lead Guards in the bargaining unit, and the added responsibilities have a significant impact on their working conditions. When they act as supervisor, they are required to work at one of two specific posts (Jt. Exh. 2 at 2), and they must conduct Guard Mount, monitor the activities of all other employees, and take charge of any incidents that may occur during the shift. If an employee calls in sick, the Lead Guard may need to find a replacement. By performing such duties, the Lead Guards will likely have better promotional opportunities, and the other guards will likely have correspondingly worse opportunities for promotion. The testimony of the Union witnesses indicated that this was a sensitive issue for the civilian guards, and the Union could foreseeably have a wide variety of concerns about the implications and effects of the change.
Based on these factors, I find that the added responsibilities of Lead Guards caused a change in working conditions that is not de minimis. See, Social Security Administration, Gilroy Branch Office, Gilroy, California, 53 FLRA 1358, 1368 (1998); Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 45 FLRA 574, 575 (1992); Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 408 (1986). Even if, as the Respondent insists, the Lead Guards will act as supervisors only "sporadically," the change will foreseeably affect the nature and quantity of work of the Lead Guards themselves, as well as the other guards whose assignments will have to be adjusted when the Lead Guards act as supervisors, and it will affect, both positively and negatively, the promotional opportunities of many unit employees.
Therefore, the Respondent was required to bargain concerning the change in Lead Guard responsibilities. Since the Respondent communicated to the Union that the change would go into effect immediately and failed to correct this apparently false impression, the change was communicated as a fait accompli. The Union was never given appropriate notice and an opportunity to bargain. Therefore, Respondent violated section 7116(a)(1) and (5) of the Statute.
The Increase in Minimum Staffing
This second change involves a similar series of events as the first: Major Locascio initially attempted to fulfill his obligation to notify the Union by hand-delivering a memo to a Union steward, and when the Union did not respond within ten workdays, he implemented the change. Although the Union witnesses deny receiving the March 9 memo (Jt. Exh. 2) that Major Locascio insists he gave to steward Maurice Williams, I find that it is immaterial whether or not the Union received it. An examination of the memo itself reveals that it cannot be construed as a valid notice to the Union of a change in working conditions.
The March 9 memo (addressed to security supervisors) consists of two pages: the first page lists the names and titles of security personnel on the three shifts; the second page identifies seven security posts and rules for assigning personnel to each post, noting that "the first five posts have to be manned at all times." The requirement that five posts be manned at all times was an increase from the existing procedure, which required only four such posts to be manned. However, the memo did not make it clear that a change is being made. While a long-time security employee might be able to ascertain the meaning of this memo, the procedural change was not at all clear on its face, and it likely would not have been apparent to a non-security employee such as Ms. Fullenwellen, the Union President. [n8] Moreover, the language communicating the new requirement of staffing five posts at all times was buried halfway through the memo, the first page of which appeared to be a routine list of security personnel. While the memo did not say that these procedures would take effect immediately, it referred to the procedures in the present tense, suggesting that the rules were already applicable.
This is not the sort of notice to a union that the Statute requires. Nothing in the March 9 memo advised the Union that the document was intended as advance notice of a proposed change, or that a response from the Union was expected. The basic purpose of the statutory requirement of notice and bargaining is to afford the [ v57 p870 ] Union "a meaningful opportunity to bargain on impact and implementation prior to the actual effectuation of the decision." U.S. Department of the Air Force, Air Force Systems Command, Electronic Systems Division, Hanscom Air Force Base, Massachusetts, 5 FLRA 637, 643 (1981). As further noted in that decision, "the agency must give specific notice to the union of any intended change. Thus a mere passing reference to a general subject matter without mentioning any contemplated change relating to this matter does not constitute adequate notice." Id. at 644 (emphasis in original)(citations omitted). Similarly, in the Harry Diamond case, the Authority held that the Respondent had not properly notified the union that employees would be required to collect unpaid parking fees, because the notice to the union primarily discussed a new plan to impose parking fees and only referred indirectly to the employees' new role in collecting those fees. Harry Diamond, 9 FLRA at 576. The Authority's observation there is equally applicable to the instant case: "the Respondent's statement in the foregoing context did not register on any of the Union representatives and could not reasonably have been expected to do so." Id.
The references to a five-man minimum posting in the Respondent's March 9 memo are even less apparent than the examples given above. It would be extremely difficult for a Union official such as Ms. Fullenwellen to understand that this memo represented the proposal of a new staffing policy; more likely, given the fact that the memo was addressed to department supervisors and not to the Union, and that the entire first page contains nothing but names and titles of employees, the memo would be interpreted as a routine staff memo of little import to the Union. A reasonable union official could not be expected to recognize that this document described a change in working conditions and required the union's response. It appears instead to be a trap for the unwary, and that is not the proper context for bargaining among equals that the Statute requires. See also, U.S. Army Corps of Engineers, Memphis District, Memphis, Tennessee, 53 FLRA 79 (1997); Hill AFB, 41 FLRA at 690.
The Respondent does not argue (as it does regarding the Lead Guard issue) that the increase in minimum staffing caused only a de minimis change in working conditions. Indeed, the minimum staffing increase represented a substantial change: it meant that more security employees would have to work on each shift, even though the number of employees was not being increased correspondingly. Therefore, guards would likely be working longer hours, and their ability to take sick and annual leave might foreseeably be restricted. In fact, Major Locascio foresaw precisely this problem in paragraphs 2, 3 and 4 of his March 27 memo to employees, as he warned employees to avoid abuse of sick leave (Jt. Exh. 3). There is no question that this new staffing policy was a significant change, the impact and implementation of which required notice to and bargaining with the Union.
Since the March 9 memo did not adequately put the Union on notice of a proposed change in working conditions, the earliest date on which the Union can be considered to have such notice was March 27. On that date, the Union stewards learned of the intended implementation of the new policy when it was posted on the squadron bulletin board for all employees to see. In other words, as in the Bureau of Reclamation case, the Union was again informed of a fait accompli. It was not given advance notice in its institutional status as a union, but was treated the same as all employees. Although the Union submitted a demand to bargain to the Respondent five days later, the Respondent informed the Union that it had waited too long and that implementation of the policy would not be delayed pending bargaining. It is therefore clear that the Union was not afforded a proper opportunity to bargain, and that the Respondent violated section 7116(a)(1) and (5) by implementing the minimum staffing policy on April 1.
In order to remedy the Respondent's unfair labor practices, the General Counsel urges that I order the Respondent to rescind the policies concerning Lead Guards assuming supervisory duties and the five-man minimum staffing requirement, in addition to the traditional remedies of a cease and desist order and the posting of a notice. The Union has additionally asked for permission to seek attorney fees. The Respondent has not specifically addressed the issue of a remedy, except that it urges dismissal of the complaints in their entirety.
In cases such as this, where agency management has failed to properly negotiate concerning the implementation and impact of a change in working conditions, the Authority considers the criteria laid out in Federal Correctional Institution, 8 FLRA 604, 605-06 (1982)(FCI) for evaluating whether to impose a status quo ante remedy. However, while the Authority in FCI spoke of determining the appropriateness of a status quo ante remedy "on a case-by-case basis, carefully balancing the nature and circumstances of the particular violation against the degree of disruption in government operations that would be caused by such a remedy[,]" it has in recent years adopted a policy of ordering status quo ante relief "in the absence of special circumstances." General Services Administration, National [ v57 p871 ] Capital Region, Federal Protective Service Division, Washington, DC, 50 FLRA 728, 737 (1995).
More recently, the Authority discussed the case law on this issue in INS, 55 FLRA at 906-07. It noted the Court of Appeals for the District of Columbia Circuit's view that, in order to make employees whole for an agency's unilateral disruption of the status quo, such remedies should normally be imposed. National Treasury Employees Union v. FLRA, 910 F.2d 964, 969 (D.C. Cir. 1990). Accordingly, the Authority stated that it will not find a status quo ante remedy disruptive of agency operations unless the agency has demonstrated such disruptiveness "based on record evidence." INS, 55 FLRA at 906. Applying the FCI criteria in this manner, the Authority went on to conclude (over the dissent of then-Member Cabaniss) that rescinding the INS's policy concerning use of non-deadly force by Border Patrol agents would not greatly disrupt the operations of the agency, despite the agency's argument that such an order would create confusion among its agents and the general public on a matter of individual constitutional rights. On the other hand, in U.S. Department of Health and Human Services, Social Security Administration, 50 FLRA 296, 299 (1995), the Authority ruled that an order to rescind the agency's new performance standards would seriously disrupt the agency's operations, as it would require rescinding 48,000 employee appraisals and 3,300 promotions and recovery of $22 million dollars in performance awards, among other personnel actions.
In the instant case, the Respondent has not presented any evidence on the specific issue of the appropriateness of a particular remedy. This makes it extremely difficult to refute the General Counsel's request that the Respondent be ordered to rescind the policies assigning supervisory duties to Lead Guards and requiring that a minimum of five security posts be staffed at all times. The record of testimony at the hearing does contain some explanation by management witnesses as to why these policy changes were made, but those explanations do not constitute "special circumstances" demonstrating that the Respondent's security mission would be compromised.
Looking at the traditional factors cited in FCI, I find that the first three factors weigh in favor of a status quo ante bargaining order. The Respondent gave the Union notice of the proposed changes, but it did so in only the most grudging, belated and confusing manner. As discussed previously, the Respondent willfully ignored the Union's reasonable (and rightful) demand that notice of changes be sent to the Union President; moreover, the management officials seem to have been motivated at least partly by a desire to create internal communications problems within the Union, and thereby to make it more difficult for the Union to make timely bargaining proposals. While I also hold the Union at least partially responsible for failing to submit specific bargaining proposals on the Lead Guard issue after the February 17 meeting, I place primary responsibility on the Respondent. Because the February 11 memo was so confusing, and management officials avoided all opportunities to lessen the confusion, the Union reasonably believed that the Lead Guard policy had already been implemented and that a demand to bargain would be futile. The Respondent's first true notice of intent to implement the two changes was the March 27 memo, and the Union's prompt response to that notice was met with a refusal by the Respondent to delay implementation during bargaining.
As for the impact of the changes on employees, I find that the change in Lead Guard duties is likely to have a much less severe adverse affect on employees than the minimum staffing increase. While the impact of the change in Lead Guard duties was not de minimis, its primary impact is on only three Lead Guards. The change has a secondary effect of possibly reducing promotion opportunities for other guards, but this also serves to benefit the Lead Guards. The increased minimum staffing requirement, however, will have a significant impact on all security employees, especially since the total number of positions on each shift was not increased. The same number of employees will have to cover more assignments and will likely have to work longer hours with fewer opportunities for leave. Overall, I find this criterion to be neutral on the question of whether a status quo ante bargaining order is warranted.
The final criterion concerns the disruptiveness of a status quo ante remedy on the Respondent's operations. The management witnesses indicated that the change in Lead Guard duties was motivated by a desire to reduce overtime pay to the supervisors, while the minimum staffing increase was forced by an Air Force Instruction and by an investigation finding the squadron vulnerable in its security procedures. However, neither of the management officials offered any detailed explanation as to how the previous four-man rule left the squadron's security compromised. Thus, while I can accept a general principle that five men can guard a base more effectively [ v57 p872 ] than four, I do not consider this to represent convincing evidence on the record that four men cannot protect the base's security during the time necessary for the parties to bargain on a new policy. I also do not find any convincing evidence that rescinding the change in Lead Guard duties will have any disruptive effect on the Respondent's operations. In sum, therefore, while I recognize the need for an Air Force base to maintain adequate security, I find that the FCI factors are greatly weighted in favor of a status quo ante remedy to make the employees whole for the two unilateral changes imposed by management. The Respondent implemented these changes without affording the Union adequate notice and an opportunity to bargain, and the Union should have that opportunity before these policies take effect. The Willow Grove base operated for a considerable period of time with a four-man minimum security posting, and I am convinced that it can operate effectively under such a policy again, while the parties negotiate the impact and implementation of any new policy.
The Union has asked me to allow it to file a motion for attorney fees, but I think that such a request is premature at this stage of the case. It anticipates that after the Respondent is required to rescind the two policy changes and after bargaining on these policies has occurred, some employees will be awarded back pay for the damages they have suffered. From the evidence on record, it strikes me as highly unlikely that the Respondent's implementation of the Lead Guard and minimum staffing changes has harmed any employee financially; indeed, the minimum staffing increase has probably resulted in additional overtime pay for employees. Nonetheless, it will be incumbent on the Union to demonstrate in the compliance stage of the proceedings that employees have suffered financial damages warranting relief under the Back Pay Act, 5 U.S.C. § 5596. A remedial order at this time need not provide for back pay.
Based on the foregoing, I recommend that the Authority issue the following Order:
Pursuant to section 2423.41(c) of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), it is hereby ordered that the Department of the Air Force, 913th Air Wing, Willow Grove Air Reserve Station, Willow Grove, Pennsylvania, (the Respondent) shall:
1. Cease and desist from:
(a) Changing the working conditions of bargaining unit employees without providing the National Association of Government Employees, Local R3-32, SEIU, AFL-CIO (the Union), with adequate notice and an opportunity to negotiate to the extent required by the Statute.
(b) Failing and refusing to recognize Cynthia Fullenwellen, President of the Union, as the Union's designated official for receiving notice of changes in working conditions of bargaining unit employees.
(c) 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 action in order to effectuate the purposes and policies of the Statute:
(a) Rescind implementation of Respondent's decisions to utilize Lead Guards as temporary supervisors and to add a fifth position to the Security Forces Squadron's minimum posting requirement.
(b) Notify the Union of any proposed changes in working conditions by sending written notice of such changes to Cynthia Fullenwellen, President of the Union, and upon request, bargain with the Union over changes in working conditions of bargaining unit employees to the extent required by the Statute.
(c) Post at its Willow Grove, Pennsylvania 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 Base Commanding Officer, and shall be posted and maintained for 60 consecutive days thereafter, [ v57 p873 ] 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, Boston Regional Office, Federal Labor Relations Authority, in