ARMY AND AIR FORCE EXCHANGE SERVICE, WACO DISTRIBUTION CENTER, WACO, TEXAS and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 4042, AFL-CIO
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
ARMY AND AIR FORCE EXCHANGE
SERVICE, WACO DISTRIBUTION
CENTER, WACO, TEXAS
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 4042, AFL-CIO
Case No. DA-CA-50351
Carlos E. Vergara, Esq. For the Respondent
Mrs. Alice Long For the Charging Party Before: ELI NASH, JR. Administrative Law Judge
Statement of the Case
An unfair labor practice Complaint and Notice of Hearing was
issued by the Dallas Regional Director in the instant matter on
January 31, 1996. The complaint alleges that the Army and Air Force
Exchange Service, Waco Distribution Center, Waco, Texas
(hereinafter called the Respondent) violated Section 7116(a)(1) and
(5) of the Federal Service Labor-Management Relations Statute
(hereinafter called the Statute) by unilaterally implementing a new
"Personal Contract" form through its Employee Assistance Program
nurse, which created a basis for potential discipline of unit
A hearing in this matter was held in Waco, Texas. All
parties were afforded a full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence. The General
Counsel filed a post-hearing brief, which has been carefully
considered. Respondent did not file a brief.
Based upon the entire record, including my observation of
the witnesses and their demeanor, I make the following findings of
fact, conclusions and recommendations.
Findings of Fact
1. Respondent's mission is to supply goods to the
various Army and Air Force post exchanges within Respondent's
geographic area of responsibility. To assist employees in
accomplishing this mission, Respondent maintains an Employee
Assistance Program (hereinafter called the EAP). The EAP is
administered by Clara Jo Taylor, the Respondent's Occupational
Health Nurse. Taylor is a supervisor or management official and
agent of Respondent.
2. Sometime prior to January 3, 1995, Taylor drafted a
document entitled "Personal Contract," to be used when an employee
sought assistance from the EAP. Prior to this date, another form
had been in use. The old form did not have any paragraph stating
that the employee could be disciplined if the employee did not
participate fully in the treatment program selected through the
EAP. Before implementing the new form, Taylor discussed it with
Respondent's attorney in Dallas. Taylor was not advised to
negotiate the new form with the Union. After coordinating the new
form with the attorney, Taylor incorporated the new language
concerning disciplinary action, that is, the third paragraph, into
the new form.
3. On January 3, 1995, Denise A. Busby, a bargaining
unit employee, met with Taylor at the suggestion of her supervisor.
Upon meeting with Taylor, Taylor told Busby that she had a form
that she wanted Busby to read and sign. Taylor then handed Busby
the new "Personal Contract" form. Taylor did not explain to Busby
whether signing the form was voluntary or a requirement of the EAP.
Busby assumed that she had to sign the form. Consequently, she
signed it, handed it back to Taylor, and was referred to a
counseling service for treatment.
4. The following day, Busby realized that she had made a
mistake in signing the form because of the language concerning
possible disciplinary action in the third paragraph. Therefore,
Busby returned to Taylor and asked for the form back. However,
Taylor refused to give Busby the form, telling Busby that the
lawyers in Dallas had told Taylor that she was required to keep the
5. Alice Long, Union President, testified that another
unit employee, Milton Jackson, also signed a personal contract
promising to complete a treatment program coordinated through the
EAP. However, Jackson chose to leave the program before its
completion. According to Long, Joyce A. Breihof, Respondent's
Distribution Center Manager, claimed that Jackson "broke his
contract" because "he can't voluntarily leave that program" and
"because the nurse felt like he had violated his agreement."
Breihof "originally wanted to terminate him
that day when he came back to work." Respondent implemented the new
"Personal Contract" form without giving the Union prior notice or
an opportunity to bargain.
Respondent does not deny the General Counsel's contention
that Taylor, the EAP nurse is a supervisor or management official,
at least for the purposes of the form in this case. Respondent
asserts only that "the form is not a negotiable issue."
Section 7103(a)(14) of the Statute defines conditions of
employment as "personnel policies, practices, and matters, whether
established by rule, regulation, or otherwise, affecting working
conditions[.]" A determination as to whether a change concerns a
condition of employment is based on the subject matter of the
change and whether (1) that subject matter pertains to bargaining
unit employees (2) there is a direct connection between the subject
matter and the work situation or employment relationship of unit
employees.See generally, Antilles Consolidated Education
Association and Antilles Consolidated School System, 22 FLRA
235, 237 (1986).
It has already been held that a proposal was negotiable
requiring management to allow employees who accepted assistance
through the EAP to be given a reasonable opportunity to improve
their performance before being subjected to adverse action.
Library of Congress, 11 FLRA 632 (1983).
The new "Personal Contract" document giving rise to the Union's charge in this case pertained to bargaining unit employees. Taylor drafted it, specifically adding the third paragraph, so that she could use it against, that is, apply it to, unit employees. She discussed the changes in this form with Respondent's attorney in Dallas, but was not advised to negotiate this new form with the Union. This document on its face presents the potential for disciplinary action and is directly connected to an employee's work situation or employment relationship. The "Personal Contract" herein, in my opinion, is no different from a "last chance agreement" since both documents form the basis for potential disciplinary action. The Authority has already found that an agency has a duty to bargain over last chance agreements. In Wright-Patterson Air Force Base, 36 FLRA 524 (1990), the Authority held that the agency had committed an unfair labor practice by, inter alia, "failing and refusing to bargain concerning 'Last Chance Agreements'." See also Wright-Patterson Air Force Base, 38 FLRA 309 (1990), where the Authority held that proposals concerning last chance agreements involve conditions of employment under the Statute to the extent that they are consistent with applicable laws and regulations.
In light of the foregoing, it is found and concluded that
Respondent had a duty to give the Union prior notice and an
opportunity to bargain before implementing the "Personal Contract"
form which contained a new paragraph forming a basis for
disciplinary action. Accordingly, it is found and concluded that a
preponderance of the evidence established that Respondent violated
Section 7116(a)(1) and (5) of the Statute by unilaterally
implementing a new EAP form entitled "Personal Contract" which
formed the basis for potential disciplinary action. Therefore, it
is recommended that the Authority adopt the following:
Pursuant to § 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and § 7118 of the Statute, the
Army and Air Force Exchange Service, Waco Distribution Center,
Waco, Texas, shall:
1. Cease and desist from:
(a) Unilaterally implementing changes in working
conditions for bargaining unit employees by requiring employees who
seek assistance from the Employee Assistance Program to sign a
"Personal Contract" form which states that if the employee fails to
participate fully in the EAP treatment program, resulting
misconduct will lead to disciplinary action and possible discharge
without first providing the American Federation of Government
Employees, Local 4042, AFL-CIO, the exclusive representative of its
employees, prior notice and an opportunity to bargain.
(b) In any like or related manner, interfere
with, restrain, or coerce its employees in the exercise of the
rights guaranteed by the Federal Service Labor-Management Relations
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Federal Service
Labor-Management Relations Statute:
(a) Provide notice and an opportunity to bargain
to the American Federation of Government Employees, Local 4042,
AFL-CIO, before implementing changes in working conditions
including requiring employees who seek assistance from the EAP to
sign a "Personal Contract" form which states that if the employee
fails to participate fully in the EAP treatment program, resulting
misconduct will lead to disciplinary action and possible
(b) Rescind the Employee Assistance Program
"Personal Contract" form unilaterally implemented on or about
January 3, 1995, remove all copies from employees' files, remove
all disciplinary records from the files of any employee who was
disciplined as a result of the unlawful implementation of the form,
and make whole any employee who suffered loss of pay or other
benefits as a result of disciplinary action initiated in connection
with the form.
(c) Post at its facility in Waco, Texas 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 Director and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that
such Notices are not altered, defaced, or covered by any other
(d) Pursuant to section 2423.30 of the Authority's
Rules and Regulations, notify the Regional Director of the Denver
Regional Office, Federal Labor Relations Authority, in writing,
within 30 days from the date of this Order, as to what steps have
been taken to comply.
Issued, Washington, D.C., September 24, 1996.
ELI NASH, JR.
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS
The Federal Labor Relations Authority has found that the Army
and Air Force Exchange Service, Waco Distribution Center, Waco,
Texas, violated the Federal Service Labor-Management Relations
Statute and has ordered us to post and abide by this notice.
We hereby notify our employees that:
WE WILL NOT unilaterally implement changes in working conditions
for unit employees by requiring employees who seek assistance from
the Employee Assistance Program to sign a "Personal Contract" form
which states that if the employee fails to participate fully in the
EAP treatment program, resulting misconduct will lead to
disciplinary action and possible discharge without first providing
the American Federation of Government Employees, Local 4042,
AFL-CIO herein called the Union,the exclusive representative of our
employees, prior notice and an opportunity to bargain.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed by the Federal Service Labor-Management Relati