AIR FORCE MATERIAL COMMAND WARNER ROBINS AIR LOGISTICS CENTER ROBINS AIR FORCE BASE, GEORGIA and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987
OFFICE OF ADMINISTRATIVE LAW JUDGES
AIR FORCE MATERIAL COMMAND
WARNER ROBINS AIR LOGISTICS CENTER
ROBINS AIR FORCE BASE, GEORGIA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987
Case No. AT-CA-70283
Richard S. Jones, Esquire For the General Counsel
Before: WILLIAM B. DEVANEY Administrative Law Judge
Statement of the Case
This proceeding, under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the United States Code,
5 U.S.C. § 7101, et seq. (1), and the Rules
and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns whether
Respondent required new and significantly different monthly status
reports in a small procurement section with four procurement
technicians, beginning in 1995, without Notice to he Union, it
being asserted that the Union did not learn of the implementation
of the new report until January 7, 1997. Respondent asserts: (a)
the change was deminimis; and (b) the
charge occurred in June, 1995, or earlier, and the form in question
has been used continuously since 1995. Accordingly, the charge
filed on January 21, 1997, is barred by § 18(a)(4) of the
This case was initiated by a charge filed on January 21, 1997
(G.C. Exh. 1(a)); the Complaint and Notice of Hearing issued on May
23, 1997 (G.C. Exh. 1(c)); and set the hearing for July 15, 1997,
at a place to be determined in Atlanta, Georgia; by Order dated
June 5, 1997, the place was fixed (G.C. Exh. 1(e)), by Order dated
June 24, 1997, the hearing was rescheduled for July 16, 1997, at
Robins AFB, Georgia (G.C. Exh. 1(j)); by Order dated June 25, 1997,
the location of the hearing was changed to Bibb County Courthouse,
Macon, Georgia (G.C. Exh. 1(k)); and by Order dated July 17, 1997,
the hearing was rescheduled for September 9, 1997, at the Bibb
County Courthouse, Macon, Georgia, pursuant to which a hearing was
duly held on September 9, 1997, in Macon, Georgia, before the
undersigned. All parties were represented at the hearing, were
afforded full opportunity to be heard and to introduce evidence
bearing on the issues involved, and were afforded the opportunity
to present oral argument, which each party waived. At the
conclusion of the hearing, October 9, 1997, was fixed and the date
for mailing post-hearing briefs and Respondent and General Counsel
each timely mailed an excellent brief, received on, October 15,
1997, which have been carefully considered. Upon the basis of the
entire record, including my observation of the witnesses and their
demeanor, I make the following findings and conclusions:
1. The American Federation of Government Employees (AFGE) is
the exclusive representative, command-wide, of the employees of the
Air Force Material Command, and American Federation of Government
Employees, Local 987 (hereinafter, "Union"), is the agent of AFGE
for the purpose of representa-tion of bargaining unit employees at
Warner Robins Air Logistics Center (hereinafter, "Respondent").
2. Respondent has a small procurement section known by the letters, "LYKPD". At all times material, LYKPD has consisted of four procurement technicians, a procurement clerk and a supervisor (Tr. 33, 73, 99). Currently, the technicians are: Geraldine Polite, Mildred Nobles, Martha Umberger and Betty Bruno; and the clerk is Glrenda Mangetto (Tr. 33). Ms. Judy Hunter was the supervisor of LYKPD prior to March, 1995; Ms. Deena Wallace was the supervisor from March, 1995, until August 25, 1997 (Tr. 33, 98), and she now is Director
of Vehicle Management (Tr. 137); and since August 25, 1997, Ms.
Sadie Harris has been the supervisor (Tr. 32, 33).
3. The forms involved herein are, and were, used solely by
the four technicians in LYKPD. Ms. Hunter had the form shown as
General Counsel Exhibit 4 (without attachments) and Respondent
Exhibits 2, 3, 4 and 5 which have the AFLC Form 773s (hereinafter,
"773s") attached, which attachments accompanied each of Ms.
Hunter's forms. Because Ms. Hunter's form displayed the term
"ELINS" at the top left, it will be referred to as the "ELINS"
form(2). It is obvious that the
ELINS form was simple, contained little information and could be
completed in 15 to 30 minutes (Tr. 37, 78).
4. Ms. Wallace replaced Ms. Hunter in March, 1995, and
devised a new and different form called, "Monthly Status Report"
(G.C. Exh. 5; Res. Exhs. 6, 7). The Monthly Status Report used and,
in a sence, evolves from the monthly 5WA Report, more properly
entitled, "Line Item Definitization Report" (G.C. Exh. 10 ,
attachment). The first item on the Monthly Status Report is: "# A
MODs DISTRIBUTED". Ms. Polite stated,
". . . An A-MOD is like a definitization product
coming in from . . . ACO, the administrating
contracting officer, definitizing this particular
contract so that the dollar amount can be estimated
and Item No. 3 . . . the PQ-MOD . . . the money will
be definitized so that it can drop off our 5WA
report." (Tr. 38).
Thus, contract no. F33657-90-c-2254 (hereinafter, "2254") on the
above 5WA Report (G.C. Exh. 10, attachment) was supposed to have
been definitized (amount made definite) August 28, 1995, but was
not until December 18, 1996 (transmitted to Ms. Nobles January 13,
1997). Accordingly, the time from August 28, 1995, when the
contract amount should have been made definite, to the date it was,
constitutes the number of days delinquent. Once the contract
modification (A-MOD), in this Case No. A-00007, issues the
delinquency for the provi-sioned items covered ceases. The 5WA
Report shows each ELIN and each ELIN has a PQ-MOD number which also
is shown on the 5WA.
The 5WA for Ms. Nobles' December, 1995, Monthly Status
Report, due January 14, 1997, was dated January 3, 1997 (G.C. Exh.
10, attachment) and, even though, as Ms. Nobles later learned,
A-MOD A-00007, which definitized nearly all of contract 2254 on
December 18, 1996, showed all of contract 2254 delinquent. Why Ms.
Nobles checked the status of contract 2254 after receipt of the 5WA
is not clear. If, as it would appear, contract 2254 was the only
contract she had, in so far as the 5WA showed, she might had
inquired as a matter of rote, or it might have been an inquiry by
someone who wanted to acquire an item under the contract, but
whatever triggered her inquiry, it was not the 5WA. The price
infor-mation furnished by the Region, consisting of 28 pages,
showed the total delinquency ($1,921,944.35); from which Ms.
Nobles: (a) deducted 10,167.61 as not delinquent (1,911,776.74);
(b) added 23,796.50 which was delinquent under a different contract
(PQ0124), for total of $1,935,573.24 which she entered as the first
item of paragraph 2 of the Monthly Status Report; (c) deducted
$29,975.64 delinquent less than 90 days for a balance of
$1,905,597.60 delinquent over 90 days which she entered as the
second item of paragraph 2 (G.C. Exh. 10). Paragraph 3 of Monthly
Status Report is the same information as reported to Ms.
5. Clearly, the information required on the Monthly Status
Report was very different from the information required on the
ELINS report and, plainly, the change had more than a de minimis effect on the
working conditions of the four technicians if only completion of
the Monthly Status Report is considered. Indeed, Ms. Polite said it
sometimes took, ". . . as much as 40 hours, a whole week, because .
. . we have to like send out letters to the ACO requesting a status
report. We have to wait until we receive this information in, and
like then we have to add up our -- we have to add up our ELINS and
come up with a total dollar delinquent and a total dollar
delinquency over 90 days . . . ." (Tr. 48). Ms. Nobles said it
required ". . .probably two or three days, or longer." (Tr.
Respondent asserts that there wasn't any change becausethe
technicians always did the very same thing, although it was not
shown on the ELINS report. For example, the Performance Plan for
technicians shows as a critical element, inter alia,
(a) "4E. Reviews the J041.5WA Line Item
Definitization report on a monthly basis."
(Res. Exhs. 8, 9, eff. in 1991, 1992, 1995,
"4E. Reviews monthly J041.5WA Line Item
Definitization Report." (Res. Exhs. 10, eff.
in 1996 and 1997)
(b) "5E. Accomplishes timely closeout of inactive
contracts. (Res. Exhs. 8, 9)
"5E. Accomplishes timely closeout of
inactive/retired contract working files and
assists in maintaining, reviewing and updating
working contract files, records, logs, computer
files and administrative records for assigned
contracts." (Res. Exh. 10);
and shows as a non-critical element, inter alia,
(a) "4Sa. Identifies PIOs [Provisioned Item Order]
delinquent in defitization and takes
appropriate action to reduce delinquencies."
(Res. Exhs. 8, 9, 10)
Ms. Wallace quite credibly testified that the items on the
Monthly Status Report are, ". . . the elements of the job" (Tr.
102); that Ms. Polite's and Ms. Nobles' assertion that the Monthly
Status Report required them to spend a week contacting people,
finding out the status, etc., simply wasn't
true. She said,
". . . Because that is our work, that is what we get
paid to do . . . we are issuing orders, we are
definitizing, getting definitizing modifications in. We
are requesting funds, we are taking money off. Everything
that is on there is reporting what has happened during that
month." (Tr. 119)
Ms. Wallace stated that documents she found in the files showed
that technicians were, indeed, doing precisely the same things
(Res. Exh. 11; Tr. 122-126). Ms. Wallace certainly was correct in
saying that it was not true that the technicians must wait for the
5WA printout, which sometimes is not received until about the 9th
of the month, because they have the previous month's 5WA and know
the deficiencies; any A-MODs that come in, they will be checking
off; and any PQ-MODs [orders] they will be recording (Tr. 117).
Nevertheless, Ms. Wallace stated that it would take, ". . . an
hour tops" (Tr. 105), if the employee were doing the work as
The Monthly Status Report was not to report when a
technician was away from the office (Tr. 151), so Ms. Noble's
showing such things as time at Christmas party was not required
(Tr. 152). The 40 copies of computer inquires on inactive contracts
in G.C. Exh. 10 represented normal work activity (see, paragraph 5E
on Res. Exh. 8, 9, 10, supra) as did all
attachments to G.C. Exh. 10, except the first two handwritten
attached papers, on columned paper with the number F33657-90-c-2254
at the top, which constituted Ms. Nobles' computations to arrive at
the dollar amounts she entered on paragraph 2 and 3 of the Monthly
Status Report (G.C. Exh. 10). These computations had not been
required for the ELINS reports and making them for the Monthly
Status Report was more than deminimis
change. In addition, assuming that each technician had all other
data, the copying, collating and assembly of the documentation of
what we had done for the month (Tr. 77, 116, 119) for attachment to
the Monthly Status Report was, alone, more than a de minimis change inasmuch as
there were no such attachments to the ELINS Reports.
6. Respondent concedes (Tr. 12) that it did not give the
Union notice of the implementation of the new Monthly Status Report
(Amended Answer, G.C. Exh. 1(m)); and it is agreed by all parties
that the Monthly Status Report was required by Ms. Wallace from the
time of its implementation in June, 1995 (Res. Exh. 1; Tr. 52), or
slightly earlier (Tr. 52), until she left as supervisor of LYKPD on
August 25, 1997; and Ms. Polite said she did not know whether Ms.
Harris intended to continue the filing of the Monthly Status
Reports (Tr. 50-51).
Ms. Polite is a former supervisor (Tr. 70) and has been a
member of the Union since June, 1996 (Tr. 56). She has filed
grievances, with the assistance of the Union, her first grievance
in June, 1995 (Tr. 43), later changed to June, 1996 (Tr. 54) having
been for counseling, ". . . for unscheduled leave, which was
really mostly like emergency leave . . . ." (Tr. 43). Ms. Polite
asserted that the due date, of the 14th of the month, for the
Monthly Status Report was absolute (Tr. 47); that once she had not
got her report in on time and Ms. Wallace, ". . . took off for it.
And at the time, when I was late doing it, I had a doctor
appointment and winded up having to have emergency surgery on my
hand, and I couldn't get it in on time . . . ." (Tr. 48) Ms. Polite
filed a grievance on June 26, 1996, about a counseling session on
tardiness and unscheduled leave (Tr. 56) and was represented by Ms.
Juanita (Tillie) Johnson (Res. Exh. 12; Tr. 56, 153), Union
steward. Ms. Wallace stated that she talked to Ms. Polite about not
filing her Monthly Status Report on time; that Ms. Polite told her,
". . . she would turn it in when she got around to turning it in"
(Tr. 128) and that she, Wallace, told Ms. Polite, ". . . it was
part of her job to submit her status on time . . . if there was a
problem, some work type problem that she had that would prevent her
from doing this, or an isolated emergency, then certainly . . . we
would take that into consideration. But that it couldn't be every
month." (Tr. 128). Ms. Wallace further stated that failing to file
one Monthly Status Report on time wouldn't hurt (Tr. 128), but, ".
. . Missing three, four, five times would hurt you." (Tr. 128). As
to her refusal to extend Ms. Polite's time to make the Monthly
Status Report, Ms. Wallace responded, ". . . I don't remember
specifics. Geraldine [Polite] was out a lot and the report is due
by the 14th of the month, and it was not an isolated absence." (Tr.
127). When asked if she remembered that Ms. Polite asserted "she
couldn't submit the report because of . . . an emergency surgery",
Ms. Wallace replied, "I don't remember it being emergency" (Tr.
127), although she did have surgery (Tr. 127).
7. Ms. Polite stated that she did not tell Ms. Johnson about
the Monthly Status Report because she didn't think it was a
significant enough thing to bring to her attention (Tr. 57). Ms.
Johnson was not called as a witness.
1. Change was more than
The Monthly Status Report was very different than the ELINS
Report; but, because the technicians were doing the work required
for the report before, the change in conditions of employment,
while not considered by the technicians as significant enough to
report to the Union (Tr. 53, 57), was more than de minimis. Thus, for example,
each technician for the Monthly Status Report had to segregate by
contract number each A-MOD number, the dollar amount of each and
the days delinquent of each; determine from the 5WA report the
total dollar delinquency, the amount delinquent less than 90 days
in order to arrive at the amount delinquent over 90 days; copy,
collate and assemble copies of all letters, inquires and fax copies
sent. Not any of this had been required for the ELINS Report and,
although the time estimated for completion of the Monthly Status
Report appears greatly exaggerated, Respondent conceded that it
would require at least an hour to complete whereas the ELINS Report
took 15 to 30 minutes. Accordingly, even though the change in
conditions of employment was slight, it was more than de minimis. Social Security Administration, 16 FLRA 56 (1984);
Department of Health and Human Services, Social
Security Administration, 26 FLRA 344 (1987).
2. Charge was
§ 18(a)(4) of the Statute, 5 U.S.C. § 7118(a)(4),
provides as follows:
"(4)(A) Except as provided in subparagraph (B) of this
paragraph, no complaint shall be issued on any alleged
unfair labor practice which occurred more than 6 months
before the filing of the charge with the Authority.
"(B) If the General Counsel determines that the
person filing any charge was prevented from filing the
charge during the 6-month period referred to in
subparagraph (A) of this paragraph by reason of--
"(i) any failure of the agency or labor
organization against which the charge is made
to perform a duty owed to the person, or
"(ii) any concealment which prevented
discovery of the alleged unfair labor practice
during the 6-month period,
the General Counsel may issue a complaint based on the
charge if the charge was filed during the 6-month
period beginning on the day of the discovery by the
person of the alleged unfair labor practice."
In one of the first cases involving a change of conditions of
employment of which, as here, the union was not given notice and it
was asserted that because the agency failed to give the union
notice it thereby failed to perform a duty owned the union which
prevented the union filing a charge within six months of the change
of conditions of employment, Judge Naimark, sated, in part, as
"Assuming arguendo that no specific notification was
given by Respondent to the Union re the implementation of
the dress code at CSB on November 15, 1982, such failure
to notify should not toll the six month statute of
limitations. A contrary conclusion would render any alleged
unilateral change as insulated from 7118(4). Since such a
charge involves a lack of notice to the bargaining
representative, the six month limitation period would, a
fortiori, become inapplicable to any unilateral change by
an agency which is alleged as an unfair labor practice. To
construe Section 7118(4) as requiring that the charge be
filed within six months of the discovery of the alleged
unfair labor practice would, in my opinion, do violence to
the intent of the Statute. A more reasonable construction,
and in accord with the statutory language, warrants the
conclusion that a charge must be filed within six months
of the conduct or action forming the basis of the unfair
labor practice. See Department of Health and Human Services,
Social Security Administration, Bureau of Field Operation
(New York, N.Y.), 11 FLRA 600. " United States
Department of the Treasury, Internal Revenue Service and
United States Department of the Treasury, Internal Revenue
Service, Houston District, 20 FLRA 51, 67 (1985) (
hereinafter, "Treasury, IRS")
Judge Naimark had found that the agency had discussed the
intended dress code for months with union representatives, made
known its position as to appropriate attire for employees and had
invited the union to attend meetings when the dress code was
announced but the union did not attend. The Authority affirmed and
stated, in part, that,
". . . the policy prohibiting the wearing of jeans . . .
was announced . . . at open meetings of employees . . .
on November 15, 1982 and the Charging Party was invited
to have a representa-tive attend . . . the rule against
wearing jeans was consistently enforced, and the May 5,
1983 incident by which the Charging Party asserts it
first learned of the policy was but a continua-tion of
the open and undisguised enforcement of this rule. This
. . . leads the Authority to conclude . . . that the
Respondent's conduct did not preclude the Charging Party
from filing the charge within six months of the November
15, 1982 meetings, at which the rule was announced . . . ."
(20 FLRA at 52).
Nevertheless, the decisions do hold that an agency's failure
to give a union notice of a change of conditions of employment
prevents the union filing a charge and, if filed within six months
of discovery, is timely. Department of the
Treasury, Internal Revenue Service, Jacksonville District,
Jacksonville, Florida, 15 FLRA 1014, 1026 (1984);
Air Force Accounting and Finance Center, Lowry Air
Force Base, Denver, Colorado, 42 FLRA 1226, 1237-1238
(1991); U.S. Department of Justice, Immigration
and Naturalization Service, Washington, D.C. and U.S. Department of
Justice, Immigration and Naturalization Service, Portland, Maine
District Office Portland, Maine and Immigration Service, St. Albans
Sub-Office, St. Albans, Vermont, 43 FLRA 241, 248-249, 261
(1991) (hereinafter, "INS"). However, the
Authority has made it clear that the Union does not exist in a
cocoon oblivious of the world. Thus, the Authority pointedly noted
in INS. supra, ". .
. there was no way the Union could reasonably have been expected to
have learned of that policy. We adopt these findings." (43 FLRA at
249; see, also 260, ". . . There is no evidence that the Union was
informed of the new twist Henry put on the smoking policy, and no
way the Union can reasonably be held responsible for learning of it
. . . ." Of course, the union in Treasury,
IRS, supra, had constructive
knowledge of the dress code.
Here, the May or June, 1995, implementation of the new
Monthly Status Report affected only the four LYKPD procurement
technicians; there was no general dissemination of this new Report
or of its implementation; the record does not show that any
employee in LYKPD was then a member of the Union; and the record
does not show any Union activity or involvement in LYKPD at that
time. Ms. Polite did not report the implementation of the new
report to the Union because, in her mind, the change was not
significant (Tr. 53) and Ms. Nobles said she did not inform the
Union, "Because I didn't know that you could do this." (Tr. 80).
Accordingly, when the new Monthly Status Report was implemented the
Union did not know of the new report and Respondent's failure to
give the Union notice prevented the Union from filing the charge
within six months of the date of implementation of the new Report
on, or about, June 14, 1995 (Res. Exh. 1); but beginning in March
1996, Ms. Polite filed numerous grievances with respect to which
she was represented by Union steward Johnson (Tr. 54, 56, 153). One
grievance was filed on June 26, 1996 (Tr. 56) and involved
counseling on tardiness and unscheduled leave [Ms. Polite said she
dealt with Ms. Johnson, ". . . when I was going through this when
Deena [Wallace] was harassing me about my time, my leave, and my
tardiness." (Tr. 69)]. Ms. Polite said that Ms. Wallace, ". . .
when she got ready to grade me, she took off for it. And at the
time, when I was late doing it, [Monthly Status Report] I had a
doctor appointment and winded up having to have emergency surgery
on my hand, and I couldn't get it in on time. . . ." (Tr. 48). Ms.
Wallace remembered the surgery but did not remember it being an
emergency (Tr. 127).
Ms. Polite said she did not tell Ms. Johnson about the
Monthly Status Report because she didn't think it was significant
enough (Tr. 57). She might have thought the introduction of the new
form in 1995 was not significant enough to go to the Union; but it
is not believable that she would not have told her Union
representative, Ms. Johnson, about the Monthly Status Report as it
was directly related to the grievance about counseling on tardiness
and unscheduled leave, e.g., ". . . for
unscheduled leave, which was really mostly like emergency leave . .
. ." (Tr. 43); " . . . when I was late doing it [Monthly Status
Report], I had a doctor appointment and winded up having to have
emergency surgery on my hand, and I couldn't get it in on time . .
. ." (Tr. 48). Not to have told Ms. Johnson about the Monthly
Status Report would be about the same as going to a dentist because
you have a toothache and then not telling the dentist that your
tooth hurts. Accordingly, I do not credit Ms. Polite's testimony
that she did not tell Ms. Johnson about the Monthly Status
General Counsel is certainly correct in his assertion that
timeliness is an affirmative defense which, in this case,
Respondent initially asserted in its Amended Answer (G.C. Exh.
1(m)), pursued at hearing and in its Brief. At the outset, Ms.
Polite testified that she had been a member of the Union, "About
two years" (Tr. 42) which, as the hearing was held on September 9,
1997, would have meant about September, 1995; but it later turned
out that she had become a member in June, 1996. In like manner, Ms.
Polite first testified that she filed her first grievance in June,
1995 (Tr. 43), but later said no, it was April or May of 1996 (Tr.
53, 54), and still later revised it to June 26, 1996 (Tr. 55). Once
it was shown that Ms. Polite's grievances directly concerned the
Monthly Status Report, a presumption arose that Ms. Polite told Ms.
Johnson about the Report. General Counsel sought to counter this
presumption by Ms. Polite's testimony that she did not mention the
Monthly Status Report to Ms. Johnson, which testimony I have found
unworthy of belief. Once it was shown that the Union presumptively
was told of the Monthly Status Report, the burden shifted to
General Counsel to rebut that presumption. General Counsel did not
call Ms. Johnson, a Union steward, but instead relied on the
testimony of Ms. Polite which I have found unworthy of belief.
Because the burden of proving that the charge was filed within six
months from the time of discovery had now shifted to General
Counsel (the charge having been filed January 21, 1997, more than
six months after the presumed discovery), I do draw the adverse
inference from General Counsel's failure to call Ms. Johnson that
she would have acknowledged notice of the Monthly Status Report on,
or before, June 26, 1996. Nevertheless, even in the absence of
inference from General Counsel's failure to call Ms. Johnson, the
presumption of knowledge was wholly unrefuted.
Mr. Ronald Jack Williams, steward and Sergeant-at-Arms of the Union, first represented Ms. Polite on her 1996 appraisal (see, S