U.S. DEPARTMENT OF AGRICULTURE FOOD SAFETY AND INSPECTION SERVICE, FIELD OPERATIONS, (CLAXTON, GEORGIA) and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3152, AFL-CIO

Other Files: 

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C. 20424-0001

MEMORANDUM

DATE:

September 22, 2005

TO:

The Federal Labor Relations Authority

FROM:

PAUL B. LANG

Administrative Law Judge

SUBJECT:

U.S. DEPARTMENT OF AGRICULTURE

FOOD SAFETY AND INSPECTION

SERVICE, FIELD OPERATIONS,

(CLAXTON, GEORGIA)

Respondent

and

Case No. AT-CA-04-0461

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 3152, AFL-CIO

Charging Party

Pursuant to Section 2423.34(b) of the Rules and Regulations

5 C.F.R. §2423.34(b), I am hereby transferring the above case to

the Authority. Enclosed are copies of my Decision, the service

sheet, and the transmittal form sent to the parties. Also enclosed

are the transcript, exhibits, and any briefs filed by the parties.

Enclosures


UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C.

20424-0001

U.S. DEPARTMENT OF AGRICULTURE

FOOD SAFETY AND INSPECTION

SERVICE, FIELD OPERATIONS,

(CLAXTON, GEORGIA)

Respondent

and

Case No. AT-CA-04-0461

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 3152, AFL-CIO

Charging Party

NOTICE OF TRANSMITTAL OF DECISION

The above-entitled case having been heard before the

undersigned Administrative Law Judge pursuant to the Statute and

the Rules and Regulations of the Authority, the under-signed herein

serves his Decision, a copy of which is attached hereto, on all

parties to the proceeding on this date and this case is hereby

transferred to the Federal Labor Relations Authority pursuant to

5 C.F.R. §2423.34(b).

PLEASE BE ADVISED that the filing of exceptions to the attached

Decision is governed by 5 C.F.R. §§2423.40-2423.41, 2429.12,

2429.21-2429.22, 2429.24-2429.25, and 2429.27.

Any such exceptions must be filed on or before

OCTOBER 24, 2005, and addressed to:

Office of Case Control

Federal Labor Relations Authority

1400 K Street, NW, 2nd Floor

Washington, DC 20005

_______________________________

PAUL B. LANG

Administrative Law Judge

Dated:

September 22, 2005

Washington, DC


OALJ 05-48

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C.

20424-0001

U.S. DEPARTMENT OF AGRICULTURE

FOOD SAFETY AND INSPECTION

SERVICE, FIELD OPERATIONS,

(CLAXTON, GEORGIA)

Respondent

and

Case No. AT-CA-04-0461

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 3152, AFL-CIO

Charging Party

Brad A. Stuhler

For the General Counsel

Sandra J. Fortson

For the Respondent

Stan Painter

For the Charging Party

Before:

PAUL B. LANG

Administrative Law Judge

DECISION

Statement of the Case

On June 28, 2004, the American Federation of Government

Employees, Local 3152, AFL-CIO (Union) filed an unfair labor

practice charge against the U.S. Department of Agriculture, Food

Safety and Inspection Service, Field Operations, Washington, DC

(Claxton, Georgia) (Respondent). On

November 19, 2004, the Regional Director of the Atlanta Region

of the Federal Labor Relations Authority (Authority) issued a

Complaint and Notice of Hearing in which it was alleged that the

Respondent committed an unfair labor practice in violation of

§7116(a)(1) and (5) of the Federal Service Labor-Management

Relations Statute (Statute) by implementing a change in the number

of employees who are allowed to be on prescheduled annual leave

for each shift for certain of its employees who are members of

the collective bargaining unit represented by the National Joint


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Council of Food Inspection Locals, American Federation of

Government Employees, AFL-CIO (AFGE). In a timely Answer to the

Complaint the Respondent denied that it had committed the alleged

violation of the Statute.

A hearing was held in Savannah, Georgia on April 20, 2005.

The parties were present with counsel and were afforded the

opportunity to present evidence and to cross-examine witnesses.1/

This Decision is based upon consideration of the evidence,

including the demeanor of witnesses, and of the post-hearing briefs

submitted by the parties.

Positions of the Parties

The General Counsel maintains that in February of 2004 the

Respondent unilaterally changed a past practice with regard to

prescheduled annual leave1/ for bargaining unit food inspectors

who were assigned to the HIMP plant1/ in Claxton, Georgia.1/ The

Claxton HIMP plant had been in existence since January of 2000

and, according to the General Counsel, had consistently followed

a procedure whereby two employees in each of the two shifts were

allowed to preschedule leave at the same time. The General Counsel

further maintains that the procedure for prescheduled leave was

a binding past practice inasmuch as it had been administered with

the knowledge of two of the Respondent's senior management

representatives.

The General Counsel also argues that the change in the

procedure for prescheduled leave had a greater than de minimis

effect on bargaining unit employees because certain employees had

been denied leave because of the change. It was reasonably

foreseeable that such denial of leave would have a disruptive

1/ The Respondent did not cross-examine either of the General

Counsel's witnesses.

2/ The term "leave" will henceforth be used to refer to annual

leave.

3/ HIMP (HACCP Inspection Model Project) refers to a food

processing plant at which the Respondent was operating a pilot

system whereby the plant itself was allowed to develop its own

inspection system which was monitored by the Respondent's

employees. HACCP stands for Hazard Analysis Critical Control

Inspection.

4/ The General Counsel acknowledges that the Respondent's

prescheduled leave policy involves the exercise of a management

right within the meaning of §7106(a)(2)(A) of the Statute.


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effect on the personal lives of these employees because of the

necessity of rescheduling family vacations and other personal

events.

Finally, the General Counsel argues that the Respondent has

failed to carry its burden of establishing the affirmative defense

that the issue of prescheduled leave was covered by the collective

bargaining agreement (CBA) between the parties.

The General Counsel proposes a status quo ante (SQA) remedy

whereby the Respondent would be ordered to reinstate the procedure

for allowing two employees per shift to preschedule leave for the

same time period and to maintain that procedure until the

completion of impact and implementation bargaining with the Union.

The Respondent maintains that it was not required to provide

the Union with notice and an opportunity to bargain over

prescheduled leave because the issue of leave is covered by the

national CBA. The prior practice at the Claxton plant was not

a binding past practice because it was contrary to the CBA.

According to the Respondent, the alleged change in the number of

employees allowed to be on prescheduled leave was no more than

an action to bring the procedure at the Claxton plant in line with

the policy set forth in the CBA.

The Respondent further maintains that the General Counsel

has failed to establish the alleged unfair labor practice by a

preponderance of the evidence inasmuch as the General Counsel did

not rebut the Respondent's affirmative defense that prescheduled

leave was covered by the CBA.

Findings of Fact

The Respondent is an agency within the meaning of

§7103(a)(3) of the Statute. The National Joint Council of Food

Inspection Locals, American Federation of Government Employees,

AFL-CIO (AFGE) is a labor organization as defined in §7104(a)(4)

of the Statute and is the exclusive representative of a unit which

includes the Respondent's employees and which is appropriate for

collective bargaining. The Union is an agent of AFGE for the

purpose of representing bargaining unit members who are employed

by the Respondent.

The Change in Procedure for Prescheduled Leave

On or about February 15, 2004,1/ Douglas M. Fulgham, the

president of the Union, was informed by John Anderson, who was

5/ All subsequently cited dates are in 2004 unless otherwise

indicated.


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then the Union representative at Claxton, that the Respondent had

changed the past procedure of allowing four employees, or two per

shift, to preschedule leave (Tr. 11, 12). Fulgham thereupon

contacted Dr. Aguirre, the immediate supervisor of the bargaining

unit employees at Claxton. Dr. Aguirre informed him that

Dr. William Moore, the circuit supervisor, had directed her to

make the change. Fulgham then contacted Dr. Moore who informed

him that he had been instructed to make the change while at a meeting

in Atlanta, Georgia; according to Fulgham, Dr. Moore did not state

the source of the instructions (Tr. 13). On or about February 25

Fulgham spoke with Dr. Larry Smith, the District Manager, and asked

if he had initiated the change in the prescheduling procedure.

According to Fulgham, Dr. Smith stated that he was unaware of

any change. Fulgham told Dr. Smith that the leave schedules for

2003 and 2004 (GC Ex. 2) supported the Union's position that there

had been a change. He faxed the documents to Dr. Smith at his

request (Tr. 14). Dr. Smith told Fulgham that he would get back

to him after he had reviewed the situation (Tr. 15).

On or about March 11, after having verified that the

Respondent had not rescinded the recent change, Fulgham again

contacted Dr. Smith. Dr. Smith informed Fulgham that, based upon

discussions with management personnel in Washington and with labor

relations personnel, he would not revoke the decision to limit

prescheduled leave to two employees at a time, which is to say

one per shift (Tr. 15, 16).

Dr. Smith testified that, as of the time of the hearing, he

had been employed by the Respondent for twenty-six years. He

became the Deputy District Manager in 2000 and the District Manager

in 2003. Dr. Smith further testified that he changed the number

of employees in Claxton who could simultaneously take prescheduled

leave so as to bring the practice in Claxton in line with what

he understood to be agency policy. He took this action after

discovering that the agency policy was not being followed (Tr. 28,

29). According to Dr. Smith, he first learned that the agency

policy was not being followed in Claxton when the Deputy District

Manager, Dr. Nassir, informed him that he (Dr. Nassir) had learned

about the situation from a super-visor who was assigned to Claxton.

Dr. Smith also testified that he was told by his subordinates

at the district level that they had no prior knowledge that the

agency policy was not being followed in Claxton (Tr. 34, 35).

The Leave Scheduling Procedure Prior to the Change

It is undisputed that, until February of 2004, the number

of employees allowed to preschedule simultaneous leave was not

limited to one per shift.1/ According to Fulgham, at or around

6/

The following language appears at the end of the leave schedule


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the time when the Claxton facility became a HIMP plant he met with

Dr. Beckman, who was the Inspector in Charge at Claxton, John

Anderson, the Union representative at the plant, and Dr. Tom

Watson, the Circuit Manager. At that time they agreed that two

employees could be on leave at the same time on each shift. The

functions of employees on leave would be performed by the relief

inspector and by the team leader. Dr. Beckman kept district

management personnel informed of the agreement by telephone; this

arrangement prevailed until 2004 (Tr. 18-20).

The Respondent's Policy

for 2003:

Please note: A maximum of two people can have scheduled

A/L per shift. All requests have been listed but, where

there are more than two, you work it out and notify

your supervisor who will be off. (GC Ex. 2, p. 6).

That language does not appear on the leave schedule for 2004

which immediately follows.



−7−

It is significant to note that, although the Respondent

purported to rely on a pre-existing policy or contractual provision

regarding the prescheduling of leave, it did not introduce either

the collective bargaining agreement (CBA) or a written policy

(assuming that there was one) into evidence.1/ However, Dennis

E. Greening, the District Manager for the Des Moines, Iowa District

and the Respondent's chief negotiator for the most recent CBA,

testified that the parties agreed to:

. . . allow the practices that were in place [for]

scheduling annual leave to remain unless there were a

problem identified, and then we would deal through those

procedures through Article VI of the Agreement, which

talks about negotiations (Tr. 51).

There is no evidence that further negotiations occurred with regard

to the Claxton HIMP plant.

Greening also testified that:

Section 4, item 2, or A-2, says, The district manager

designee will determine how many employees can be off

on annual leave simultaneously within a lead roster.

Available relief will be considered in determining the

number to be off simultaneously (Tr. 46).1/

Greening stated that he did not know whether the manager of an

individual HIMP plant could determine how many employees could

be on leave at the same time (Tr. 47).

Upon redirect examination Greening stated that:

. . . different locations had different ways of

scheduling leave that the individuals liked doing a

certain way. We still - we as management, or the Agency,

maintained control of leave approval, and the numbers

of people that could be off within that system. The

systems are what we said we will maintain, not the

7/ In its case in chief the Respondent attempted to introduce

its "last best offer" on annual leave into evidence. I sustained

the General Counsel's objection because the document had not been

included in the Respondent's prehearing disclosure and because

there was an insufficient basis for an exception to the

requirements of §2423.23 of the Rules and Regulations of the

Authority (Tr. 42-44).

8/ It is unclear whether this language is alleged to be a direct

quote from the CBA or merely a summary of its provisions.


−8−

numbers that could be off because that's determined by

the work load and that varies from year to year (Tr. 57).

The Effect of the Change in Leave Scheduling Procedure1/

John Anderson testified that he has been denied leave in 2004

because of the change in the scheduling procedure. According to

Anderson, he was denied leave during the week of May 16-22 because

Tom wanted time off on May 20 and 21 and Linda wanted time off

on May 21; he also was denied leave on July 20 and on a number

of other occasions. This caused a conflict with a planned family

vacation (Tr. 24-26).

Anderson's testimony is corroborated by the leave schedules

that Fulgham submitted to Dr. Smith (GC Ex. 2). At the end of

each of the schedules is an explanation of various symbols; the

meaning of the asterisk is "Exceeds number of relief personnel.

Don't anticipate leave being granted." Asterisks appear after

"John" for both May 20 and 21. An asterisk also appears after

"Tom" for May 21, apparently because Linda also wanted that date.

There is also an asterisk after Anderson's name for July 20,

apparently because Linda wanted to take leave for the entire week.

Similar notations appear at various other dates after the names

of other employees.1/

9/ Although the Respondent has not pursued the de minimis defense

which was included in its prehearing disclosure, the effect of

the change in procedure is relevant to the availability of the

SQA remedy requested by the General Counsel.

10/ The asterisk was given the same meaning in the schedule for

2003. However, the symbol does not appear in the body of the

schedule.


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There is no evidence as to whether Anderson or any other

employee was eventually allowed to take leave that was initially

denied.1/ However, it is more likely than not that a significant

number of those employees were not able to take leave on the

preferred dates. Furthermore, it is likely that many of the

employees who were initially denied leave had to change personal

plans because of uncertainty as to whether their leave requests

would be granted.

Upon consideration of the evidence, I find as a fact that,

from January of 2000 to February of 2004, the Claxton HIMP plant

followed a procedure whereby two employees per shift were allowed

to preschedule leave on the same dates. I further find that the

leave procedure was changed by the Respondent in February of 2004

and that, after the change, only one employee per shift was allowed

to preschedule leave on a given day. The Respondent made that

change without affording the Union advance notice or an opportunity

to bargain.

With regard to the Respondent's policy regarding the

prescheduling of leave at HIMP plants, I find that the CBA did

not set a limit on the number of employees who could preschedule

leave on the same date, but, on the contrary, allowed for the

continuation of past procedures in the absence of negotiated

changes. This is not to say that local managers were required

to allow for prescheduled leave regardless of their relief

capability, but only that a specific limit was not set for all

HIMP plants. Therefore, the procedure which had been followed

at Claxton prior to February of 2004 was not inconsistent with

the CBA.

Discussion and Analysis

The Procedure for Prescheduling Leave is a Condition of Employment

In determining whether a matter involves a condition of

employment the Authority will consider (a) whether it pertains

to bargaining unit employees, and (b) whether there is a direct

connection between the matter and the work situation of bargaining

unit employees, Antilles Consolidated Education Association and

Antilles Consolidated School System, 22 FLRA 235, 237 (1986).

The procedure for prescheduled leave meets both of those criteria.

11/ Dr. Smith testified that more than one person on each shift

would be permitted to take prescheduled leave when the relief

capability allowed for a relaxation of the general rule; this

would occur "fairly often" (Tr. 31). However, there is no

evidence as to how much advance notice was given to employees

whose leave requests were eventually granted.


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It is undisputed that the procedure affects bargaining unit

employees at the Claxton HIMP plant and there can be no valid doubt

that the issue of leave affects the work situation of those

employees. Such a conclusion has been endorsed by the Authority

in 56th Combat Support Group, MacDill Air Force Base, Florida,

43 FLRA 1565 (1992). Therefore, I conclude that the procedure

for prescheduling leave at the Claxton HIMP plant is a condition

of employment.

The Authority has also held that, regardless of whether agency

action is an exercise of a management right, the agency is not

absolved of the duty to notify the appropriate labor organization

prior to implementing a change in working conditions and to bargain

to the extent required by law, United States Department of the

Air Force, 913th Air Wing, Willow Grove Air Reserve Station, Willow

Grove, Pennsylvania, 57 FLRA 852, 855 (2002). Accordingly, the

Respondent was not entitled to unilaterally change the procedure

for prescheduling leave.

The Procedure Which Existed Prior to February of 2004 Was a

Binding Past Practice

The Authority has long held that conditions of employment

may arise out of a past practice, Department of the Treasury,

Internal Revenue Service, (Washington, DC), et al., 27 FLRA 322,

324 (1987). In order to find the existence of a past practice,

there must be a showing that the practice has been consistently

exercised over a significant period of time and followed by both

parties, or followed by one party and not challenged by the other,

U.S. Patent and Trademark Office, 57 FLRA 185, 191 (2001). The

General Counsel has made such a showing.

It is undisputed that the Respondent allowed simultaneous

prescheduled leave for two employees per shift from the time of

the establishment of the Claxton HIMP plant in January of 2000

until February of 2004 when the procedure was terminated by order

of Dr. Smith. Thus, the Respondent followed the procedure in

establishing annual leave schedules for the years 2000, 2001, 2002

and 2003; furthermore, the Respondent allowed employees to take

their prescheduled leave throughout each of those years. Thus,

the procedure was followed consistently over a significant period

of time.

The Respondent did not challenge Fulgham's testimony that

supervisory personnel at Claxton kept the district office informed

of the progress of negotiations over the leave policy. Fulgham's

testimony was not effectively rebutted by Dr. Smith's assertion

that neither he nor his subordinates at the district level were

aware of the procedure at Claxton. Furthermore, the provision

of the CBA to allow local procedures to remain in effect put the

Respondent on constructive notice that facilities such as the


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Claxton HIMP plant might not have been following a uniform

procedure with regard to the prescheduling of leave. Therefore,

the procedure at Claxton was followed by both parties or, at the

very least, followed by the Union and not challenged by the

Respondent in spite of the Respondent's actual or constructive

knowledge of its existence.

The Remedy

Since, as acknowledged by the General Counsel, the change

in conditions of employment involved the exercise of a management

right, a SQA remedy may only be applied under the criteria set

forth in Federal Correctional Institution, 8 FLRA 604, 606 (1982)

(FCI). Those criteria will be set forth below and applied to the

circumstances of this case.

Whether, and when, notice was given to the Union by the

Respondent. It is undisputed that the Respondent provided the

Union with no advance notice before changing the procedure for

granting prescheduled leave.

Whether, and when, the Union requested bargaining over the

change in procedure. This criterion is not applicable since the

Union did not receive advance notice of the change. Nevertheless,

Fulgham promptly and persistently inquired as to the Respondent's

intentions and demonstrated the existence of a past practice to

Dr. Smith.

The willfulness of the Respondent's actions in failing to

discharge its bargaining obligations under the Statute. Although

the Respondent might have believed that it was under no duty to

bargain because of a contrary policy or contractual provision,

the evidence indicates that the belief was unfounded because no

such policy or provision existed. In any event, the Respondent's

belief that it had no duty to bargain does not detract from the

willful nature of its failure to do so, U.S. Department of Energy,

Western Area Power Administration, Golden, Colorado, 56 FLRA 9,

13 (2000).

The nature and extent of the impact experienced by adversely

affected employees. Both Anderson's testimony and a comparison

of the leave schedules for 2003 and 2004 demonstrate that the impact

of the denial of leave in 2004 was significant and that bargaining

unit employees had not experienced such denial prior to 2004.

Whether, and to what degree, a status quo ante remedy would

disrupt or impair the efficiency and effectiveness of the

Respondent's operations. The Respondent has not addressed the

appropriateness of a SQA remedy. Even if this were not so, there

is no evidence that the maintenance of the past practice caused


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any disruption or loss of efficiency prior to February of 2004

or that there was any change in conditions after that time such

as would support a conclusion that future disruptions are likely

to occur.

In summary, the General Counsel has satisfied four of the

five criteria set forth in FCI thereby justifying the imposition

of a SQA remedy.

In view of the foregoing factors, I have concluded that the

Respondent committed an unfair labor practice in violation of

§7116(a)(1) and (5) of the Statute by changing the procedure for

the allowance of prescheduled leave at the Claxton HIMP plant

without affording the Union advance notice and the opportunity

to negotiate. Accordingly, I recommend that the Authority adopt

the following Order:

ORDER

Pursuant to §2423.41(c) of the Rules and Regulations of the

Authority and §7118 of the Federal Service Labor-Management

Relations Statute (Statute), it is hereby ordered that the U.S.

Department of Agriculture, Food Safety and Inspection Service,

Field Operations, Washington, D.C. (Claxton, Georgia), shall:

1.

Cease and desist from:

(a) Implementing changes in procedures for the

prescheduling of annual leave by bargaining unit employees at the

Claxton HIMP plant without providing prior notice to the American

Federation of Government Employees, Local 3152, AFL-CIO (Union)

and affording the Union the opportunity to bargain over such

changes to the extent required by the Statute.

(b) 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) Restore the status quo ante at the Claxton HIMP plant

by permitting two employees per shift to preschedule annual leave

on the same day.

(b) Post at the Claxton HIMP plant copies of the attached

Notice on forms to be furnished by the Authority. Upon receipt

of such forms they shall be signed by the cognizant District Manager

and shall be posted and maintained for 60 consecutive days

thereafter in conspicuous places, including all bulletin boards


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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.

(c) Pursuant to §2423.41(e) of the Rules and Regulations

of the Authority, notify the Regional Director of the Atlanta

Region of the Authority, in writing and within 30 days of the date

of this Order, as to what steps have been taken to comply.

Issued, Washington, DC, September 22, 2005

PAUL B. LANG

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 Agriculture, Food Safety and Inspection Service,

Field Operations, Washington, DC (Claxton, Georgia) 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 implement changes in procedures for the prescheduling

of annual leave by bargaining unit employees at the Claxton HIMP

plant without providing prior notice to the American Federation

of Government Employees, Local 3152, AFL-CIO (Union) and affording

the Union the opportunity to bargain over such changes to the extent

required by the Statute.

WE WILL NOT, in any like or related manner, interfere with, restrain

or coerce our employees in the exercise of their rights assured

by the Federal Service Labor-Management Relations Statute.

WE WILL restore the status quo ante at the Claxton HIMP plant by

permitting two employees per shift to preschedule annual leave

on the same day.

______________________________

(Agency)

Dated:

______________

By:

______________________________

(Signature) (Title)

This Notice must remain posted fo