DEPARTMENT OF THE ARMY HQS, XVIII AIRBORNE CORPS AND FORT BRAGG FORT BRAGG, NORTH CAROLINA and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1770

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Office of Administrative Law Judges

WASHINGTON, D.C. 20424-0001

DEPARTMENT OF THE ARMY HQS, XVIII AIRBORNE CORPS AND FORT BRAGG FORT BRAGG, NORTH CAROLINA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1770
Charging Party
Case No. AT-CA-50913
Michael T. Rudisill Counsel for the Respondent
Ronald R. Katt Representative of the Charging Party
Hazel E. Hanley Counsel for the General Counsel, FLRA

Before: GARVIN LEE OLIVER Administrative Law Judge

DECISION

Statement of the Case

The unfair labor practice complaint alleges that Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7116(a)(1) and (5), at some time after May 18, 1995 and before June 13, 1995, when the Respondent, through Supervisor David Coleman, bypassed the Union and dealt directly with a unit employee/grievant concerning a grievance filed by the Union on behalf of the employee.

Respondent's answer denied any violation of the Statute.

A hearing was held in Fayetteville, North Carolina. The parties were represented and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The Respondent and General Counsel filed helpful briefs. Based on the entire record,(1) including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.


Findings of Fact

On May 18, 1995, the Union, on behalf of Graham Renfrow, a member of the bargaining unit, filed a grievance with the Respondent concerning a locked gate which prevented Renfrow from reporting to work on time and the subsequent verbal abuse of Renfrow by his supervisor, David Coleman. The grievance named William B. Hall as the representative and point of contact for the Union.

The factual issue in dispute concerns a meeting between Supervisor Coleman and Mr. Renfrow sometime after May 18, 1995, but prior to June 13, 1995, during which a resolution of the grievance was allegedly discussed without a Union representative being on notice or present.

Supervisor Coleman testified that he was talking with Renfrow in his office when Renfrow started using several curse words. Coleman told Renfrow that he had filed a grievance because of Coleman's use of the same language. According to Coleman, Renfrow then replied that he had been thinking about that and was going to drop the grievance.

Mr. Coleman testified that it was never his intention to settle the grievance with Renfrow, but merely to make a point regarding the use of profanity in the workplace. Coleman testified that sometime later Renfrow again mentioned that he was dropping the grievance, at which time Coleman informed him that the Union had not dropped the grievance. According to Coleman, Renfrow said he would talk to the Union again.

Mr. Renfrow acknowledged that he told Supervisor Coleman that he was dropping the grievance, but only after they had

discussed the matter and Supervisor Coleman had apologized for cursing and losing his temper. According to Mr. Renfrow, a day or two after filing the formal grievance, Supervisor Coleman asked Renfrow to step in his office. Coleman told Renfrow that he had heard that Renfrow had filed a grievance against him. When Renfrow acknowledged that was so, Coleman referred to an earlier one-on-one appraisal meeting they had a day or so earlier during which Renfrow had used curse words. According to Renfrow, he and Coleman then discussed the background issues of the grievance and, after about 30 minutes, Coleman apologized for cursing at Renfrow and losing his temper after the locked gate incident on May 1, 1995. Coleman continued to insist that, if the gate were locked, Renfrow should drive to the other gate, park, and walk to the shop. Finally, after further argument by Renfrow, that the gate should be unlocked for the oncoming shift, Coleman said he "would do his absolute best to make sure that the gate would be unlocked on time, and that we wouldn't have any further problems with the gate."

According to Renfrow, having Coleman's apology and assurances about the gate, he "felt at the time that [Coleman] was sincere in what he was saying, and I felt comfortable with it, and I told him that I would drop the grievance, and I did." Renfrow testified that he immediately informed Union shop steward Berkley that he was satisfied with what had happened in Coleman's office, including his apology, and wanted to drop the grievance.

Based on my observation of the witnesses and their demeanor, the arguments of counsel concerning their credi-bility, and all the evidence relating to the handling of the grievance in question, I credit the testimony of Mr. Renfrow. His testimony appeared to be sincere and straightforward and his explanations inherently probable given the total context of the situation.

Despite Mr. Renfrow's desire to drop the grievance, at a meeting with Respondent on June 13, 1995, during which the gate problem and Mr. Coleman's relationship with employees was discussed, Union president Bullard requested that a first step grievance meeting be held on the Renfrow grievance. At that meeting, on June 15, 1995, the new Union chief steward said that since the grievant was not present and wanted to drop the grievance, the Union would not pursue it.

By letter dated July 5, 1995, the Respondent advised Mr. Renfrow and his Union representative, in part, as follows:

After reviewing the grievance and fully considering

Union concerns raised by Mr. Bullard during the [June

13,1995] meeting, I have decided the remedial action

sought in this grievance has been effected through Mr.

Coleman's apology to you and Union concerns addressed

during our meeting.


Discussion and Conclusions

In Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Region X, Seattle, Washington, 39 FLRA 298, 311 (1991) (SSA, Region X), the Authority set forth the following principles:

Agencies unlawfully bypass an exclusive representative

when they communicate directly with bargaining unit

employees concerning grievances, disciplinary actions and

other matters relating to the collective bargaining

relationship. See, for example, Depart-ment of the Air

Force, Sacramento Air Logistics Center, McClellan Air

Force Base, California, 35 FLRA 345 (1990) (McClellan Air

Force Base). Such conduct constitutes direct dealing with

an employee and is violative of section 7116(a)(1) and (5)

of the Statute because it interferes with the union's

rights under section 7114(a)(1) of the Statute to act for

and represent all employees in the bar-gaining unit. Such

conduct also constitutes an independent violation of

section 7116(a)(1) of the Statute because it demeans the

union and inherently interferes with the rights of employees

to designate and rely on the union for representation. See,

for example, id.; 438th Air Base Group (MAC) McGuire Air

Force Base, New Jersey, 28 FLRA 1112 (1987) (McGuire Air

Force Base); Social Security Administration, 16 FLRA 434

(1984).

The Respondent, by Supervisor David Coleman, unlawfully bypassed the Union by meeting with bargaining unit employee Graham Renfrow sometime after May 18, 1995, but prior to June 13, 1995, and dealing with Renfrow directly concerning his May 18, 1995 grievance without affording the Union notice and an opportunity to be represented. Consistent with SSA, Region X, the Respondent's conduct interfered with the Union's rights under section 7114(a)(1) to act for and represent all employees in the bargaining unit, and thereby violated section 7116(a)(1) and (5) of the Statute. By the same conduct, the Respondent demeaned the Union and inherently interfered with the rights of employees to designate and rely on the Union for representation, and thereby independently violated section 7116(a)(1) of the Statute. Seealso U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas, 51 FLRA 1339 (1996) (FCI, Bastrop) (unlawful bypass found citing SSA, Region X principles).

Based on the above findings and conclusions, it is recommended that the Authority issue the following Order which is consistent with the remedy afforded by the Authority in SSA, Region X and FCI, Bastrop and which it is believed will effectuate the purposes and policies of the Statute in this

instance(2):


ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina shall:

1. Cease and desist from:

(a) Failing and refusing to bargain in good faith with the American Federation of Government Employees, AFL-CIO, Local 1770 (the Union), the exclusive representative of certain of its employees, by bypassing the Union and communicating directly with a bargaining unit employee concerning a grievance.

(b) Interfering with the right of its employees to designate and rely on the Union to process their grievances through the negotiated grievance procedure.

(c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Notif