[ v04 p469 ]
04:0469(65)CA
The decision of the Authority follows:
4 FLRA No. 65
U.S. DEPARTMENT OF THE AIR FORCE
47TH AIR BASE GROUP (ATC)
LAUGHLIN AIR FORCE BASE, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1749
Charging Party
Case No. 6 -CA-144
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING RECOMMENDING THAT THE UNFAIR
LABOR PRACTICE COMPLAINT BE DISMISSED IN ITS ENTIRETY. THE GENERAL
COUNSEL FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER AND THE RESPONDENT FILED A REPLY TO THE GENERAL
COUNSEL'S EXCEPTIONS.
THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135), THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER, AND THE ENTIRE RECORD IN THE
CASE, INCLUDING THE GENERAL COUNSEL'S EXCEPTIONS AND THE RESPONDENT'S
REPLY THERETO, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN FL'A CASE NO. 6-CA-144 BE,
AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
JOHN J. FRANCO, ESQUIRE
FOR THE RESPONDENT
SUSAN E. JELEN, ESQUIRE
STEVEN M. ANGEL, ESQUIRE
FOR THE GENERAL COUNSEL
BEFORE: GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
CASE NO. 6-CA-144
DECISION
STATEMENT OF THE CASE
THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ. (THE STATUTE).
IT WAS INITIATED BY AN UNFAIR LABOR PRACTICE CHARGE FILED ON JUNE 18,
1979 BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1749
(AFL-CIO) (CHARGING PARTY OR UNION). (GENERAL COUNSEL'S EX. 1(A)). AS
A RESULT THEREOF, THE GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS
AUTHORITY (GENERAL COUNSEL), BY THE REGIONAL DIRECTOR, SIXTH REGION,
DALLAS, TEXAS, ISSUED A COMPLAINT AND NOTICE OF HEARING AGAINST THE
DEPARTMENT OF THE AIR FORCE, 47TH AIR BASE GROUP (ATC), LAUGHLIN AIR
FORCE BASE, TEXAS (RESPONDENT).
THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED 5
U.S.C. 7116(A)(1) AND (5) BY REFUSING TO BARGAIN IN GOOD FAITH WITH THE
UNION IN THAT (A) ON OR ABOUT LATE JANUARY 1979, RESPONDENT BY-PASSED
THE UNION AND DEALT DIRECTLY WITH EMPLOYEES CONCERNING THE CLOSING OF
THE SNACK BAR AT THE BASE BOWLING ALLEY, /1/ AND (B) ON OR ABOUT
FEBRUARY 1, 1979, RESPONDENT ENGAGED IN AN ATTEMPT TO UNDERMINE THE
UNION, AND AVOID GOOD FAITH BARGAINING, BY RESCINDING AN AGREEMENT WITH
THE UNION NOT TO CLOSE THE SNACK BAR AT THE BASE BOWLING ALLEY AND
PERMITTING EMPLOYEES TO CONTINUE TO WORK. (GENERAL COUNSEL'S EX. 1(D)).
RESPONDENT'S ANSWER DENIED THESE ALLEGATIONS AND ASSERTED THAT THE
DECISION TO CLOSE THE SNACK BAR AND ITS IMPACT ON THE WORK STATUS OF
EMPLOYEES WERE NOT NEGOTIABLE MATTERS IN THAT REPRESENTATIVES OF THE
RESPONDENT WERE ACTING PURSUANT TO THE PROVISIONS OF AIR FORCE
REGULATION 40-7, "NONAPPROPRIATED FUNDS PERSONNEL MANAGEMENT AND
ADMINISTRATION." (GENERAL COUNSEL'S EX. 1(F)).
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED IN DEL RIO,
TEXAS. THE GENERAL COUNSEL AND THE RESPONDENT WERE REPRESENTED BY
COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT
EVIDENCE, EXAMINE AND CROSS-EXAMINE WITNESSES, AND FILE POST-HEARING
BRIEFS.
BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS. ANY PROPOSED FINDING OR
CONCLUSION WHICH IS INCONSISTENT WITH THE FOLLOWING HAS BEEN CAREFULLY
CONSIDERED AND IS HEREBY DENIED.
FINDINGS OF FACT
1. DURING JANUARY AND FEBRUARY OF 1979 AND AT ALL MATERIAL TIMES THE
RESPONDENT OPERATED A BOWLING CENTER, A NONAPPROPRIATED FUND
INSTRUMENTALITY (NAFI), WHICH INCLUDED A SMALL SNACK BAR. (TR. 75,
121).
2. SINCE AUGUST OF 1978 AND AT ALL MATERIAL TIMES THE UNION HAS BEEN
THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR ALL NON-SUPERVISORY
NONAPPROPRIATED FUND EMPLOYEES, INCLUDING INTERMITTENT EMPLOYEES AND
TEMPORARY EMPLOYEES WHOSE CONTINUOUS APPOINTMENT EXCEEDS 180 DAYS
SERVICED BY THE CIVILIAN PERSONNEL OFFICE, LAUGHLIN AIR FORCE BASE,
TEXAS. (GENERAL COUNSEL'S EX. 1). OTHER THAN A DUES DEDUCTION
AGREEMENT, THERE HAS NEVER BEEN A GENERAL LABOR AGREEMENT BETWEEN THE
PARTIES PERTAINING TO THE EMPLOYEES IN THE ABOVE DESCRIBED UNIT. (TR.
66-67).
3. ON JANUARY 25, 1979, MR. TERRY CRISWELL, MANAGER OF THE BOWLING
CENTER, WAS NOTIFIED BY BASE CIVIL ENGINEERING THAT CONSTRUCTION WORK
WOULD BE PERFORMED OVER THE SNACK BAR BEGINNING ON FEBRUARY 5, 1979, AND
THAT THE SNACK BAR WOULD HAVE TO BE CLOSED DURING THE PERIOD OF SUCH
CONSTRUCTION. (TR. 79-80, 96-97, 102). BECAUSE THERE HAD BEEN
CONSIDERABLE PAST DISCUSSION ABOUT THE GREASE RACK HOOD OVER THE GRILL
IN THE SNACK BAR BEING A SAFETY HAZARD IN THAT IT WAS TOO HIGH, MR.
CRISWELL WAS UNDER THE IMPRESSION THAT THE WORK TO BE PERFORMED INVOLVED
THE LOWERING OF THE HOOD. (TR. 75, 102-104). /2/
4. WITHIN 30 MINUTES OF RECEIVING WORD OF THE NECESSITY TO CLOSE THE
SNACK BAR, MR. CRISWELL VERBALLY NOTIFIED MR. REYNALDO PENA, A PEN
SETTER MECHANIC IN THE BOWLING LANES, AND THE UNION'S VICE PRESIDENT FOR
NONAPPROPRIATED FUND PERSONNEL. (TR. 79-80, 94-95, 97-98; 30-32, 79).
MR. CRISWELL ADVISED MR. PENA THAT HE WAS NOTIFYING HIM AS A UNION
OFFICIAL THAT CONSTRUCTION WORK WOULD TAKE PLACE CONCERNING THE HOOD,
AND THE SNACK BAR WOULD BE CLOSED DOWN FOR A FEW DAYS. MR. PENA SAID HE
UNDERSTOOD. (TR. 95). /3/
5. FIFTEEN OR TWENTY MINUTES LATER CRISWELL NOTIFIED THE THREE
EMPLOYEES AFFECTED. (TR. 80-81, 95). HE TOLD THE EMPLOYEES THAT THE
SNACK BAR WOULD CLOSE BECAUSE OF CONSTRUCTION IN ORDER TO LOWER THE HOOD
AND, WHILE HE COULD NOT BE SURE OF THE LENGTH OF THE CLOSURE, HE THOUGHT
THAT IT WOULD BE FOR "TWO OR THREE DAYS OR SO." HE THEN ASKED THE
EMPLOYEES WHETHER THEY WANTED TO TAKE ANNUAL LEAVE OR LEAVE WITHOUT PAY.
(TR. 81).
6. THE TYPE OF LEAVE TO BE TAKEN WHEN THE OPERATIONS OF
NONAPPROPRIATED FUND INSTRUMENTALITIES ARE SUSPENDED IS SET FORTH IN
PARAGRAPH 8-10, AIR FORCE REGULATION 40-7, "NONAPPROPRIATED FUNDS
PERSONNEL MANAGEMENT AND ADMINISTRATION," CHANGE 4, 18 APRIL 1977, WHICH
READS IN PERTINENT PART AS FOLLOWS:
* * * *
8-10. EXCUSED ABSENCES:
* * * *
B. INSTALLATION COMMANDERS MAY SUSPEND SOME OR ALL NAFI OPERATIONS
WHEN UNUSUALLY SEVERE
WEATHER CONDITIONS OR OTHER EMERGENCY SITUATIONS DICTATE SUCH ACTIONS
AS BEING IN THE BEST
INTEREST OF THE AIR FORCE, AND EXCUSE EMPLOYEES AT WORK OR SCHEDULED
TO BE PRESENT FOR DUTY
WITHOUT A CHARGE OF ANNUAL OR SICK LEAVE. THE STATUS OF EMPLOYEES ON
APPROVED LEAVE OR LWOP
DURING PERIODS OF EXCUSED DOES NOT CHANGE.
C. EMPLOYEES CANNOT BE EXCUSED WITHOUT CHARGE TO LEAVE WHEN
OPERATIONS ARE SUSPENDED FOR
MANAGERIAL REASONS KNOWN SUFFICIENTLY IN ADVANCE TO PERMIT THE
SCHEDULING OF LEAVE. NORMALLY,
EMPLOYEES ARE NOTIFIED 24 HOURS IN ADVANCE BUT WHEN THIS IS
IMPRACTICABLE, EMPLOYEES ARE
PLACED ON ANNUAL LEAVE IF THEY ARE NOTIFIED BY THE CLOSE OF THE
PRECEDING WORKDAY.
* * * *
(RESP. EX. 2)
7. THE TERM "MANAGERIAL REASONS" AS USED IN PARAGRAPH 8-10C ABOVE
INCLUDES CLOSURE FOR REPAIRS OR RENOVATION. (TR. 146-147). AN EMPLOYEE
CAN BE RELEASED WITH PAY ONLY UNDER THE EMERGENCY CONDITIONS OUTLINED IN
PARAGRAPH 8-10B ABOVE. OTHERWISE, THE NONAPPROPRIATED FUND MANAGER'S
ONLY LEAVE OPTION IS TO PLACE THE EMPLOYEE ON ANNUAL LEAVE, IF HE HAS
ACCRUED SUFFICIENT LEAVE, OR TO PUT HIM ON LEAVE WITHOUT PAY, IF THE
EMPLOYEE ELECTS NOT TO TAKE ANNUAL LEAVE, OR HAS NOT ACCRUED SUFFICIENT
ANNUAL LEAVE. (TR. 145-147).
8. THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AMONG OTHER
UNIONS, ARE AFFORDED NATIONAL CONSULTATION RIGHTS WITH RESPECT TO AFR
40-7 AND CHANGES THEREIN. (TR. 141-142).
9. AFTER RAUL NOYOLA, A MAINTENANCE WORKER IN THE BOWLING ALLEY AND
SNACK BAR, WAS NOTIFIED BY CRISWELL, NOYOLA APPROACHED ROY FLORES,
PRESIDENT OF THE UNION, WHILE HE WAS IN THE SNACK BAR ON JANUARY 27 OR
28, 1979. NOYOLA TOLD FLORES ABOUT THE CLOSING AND INQUIRED WHETHER
MANAGEMENT COULD DO THIS. FLORES STATED THAT THE UNION HAD NOT BEEN
NOTIFIED, AND HE WOULD CHECK FURTHER ON IT. (TR. 28, 44).
10. FLORES TESTIFIED THAT THIS DISCUSSION WITH NOYOLA WAS THE FIRST
TIME THAT HE HAD ANY KNOWLEDGE OF THE TEMPORARY CLOSING. (TR. 43, 44).
IN THE PAST, HE HAD BEEN NOTIFIED IN WRITING BY THE PERSONNEL OFFICER OR
LABOR RELATIONS OFFICER OF ANY CHANGES IN WORKING CONDITIONS OF UNIT
EMPLOYEES. (TR. 151).
11. FOLLOWING HIS DISCUSSION WITH NOYOLA, FLORES CONTACTED CARLOS
TUNCHES, CIVILIAN PERSONNEL OFFICER, TO PROTEST THE UNION'S NOT BEING
INFORMED OF THE CLOSING. (TR. 44). TUNCHES RESPONDED BY SENDING THE
UNION WRITTEN NOTIFICATION IN A LETTER DATED JANUARY 30, 1979. (TR. 44,
45, JOINT EX. 3). FLORES THEN FILED AN UNFAIR LABOR PRACTICE CHARGE
WITH THE RESPONDENT OVER ITS ACTION. /4/ (TR. 45, JOINT EX. 4 AND 5).
12. RESPONDENT AND THE UNION MET INFORMALLY ON JANUARY 31, 1979 TO
DISCUSS THE SITUATION. AT THIS MEETING THE UNION COMPLAINED THAT IT HAD
NOT BEEN PROPERLY NOTIFIED AND THAT MANAGEMENT HAD ALREADY INFORMED THE
EMPLOYEES OF THE CLOSING. THE UNION REQUESTED THAT THE SNACK BAR
CLOSING BE HELD IN ABEYANCE, OR, IF THEY WERE GOING AHEAD, THAT
EMPLOYEES BE PLACED ON DETAIL, OR GIVEN ADMINISTRATIVE LEAVE.
MANAGEMENT RESPONDED THAT UNDER THE REGULATIONS ONLY 24 HOURS NOTICE
WAS
REQUIRED, AND THE EMPLOYEES WOULD HAVE TO TAKE ANNUAL LEAVE OR LEAVE
WITHOUT PAY. (TR. 47).
13. ON THE MORNING OF FEBRUARY 1, 1979 REPRESENTATIVES OF THE UNION
AND THE RESPONDENT MET AGAIN. RESPONDENT STATED THAT THE UNION WOULD BE
GIVEN THE BENEFIT OF THE DOUBT ON THE ISSUE OF WHETHER THE UNION HAD
BEEN NOTIFIED AND PRESENTED A PROPOSED MEMORANDUM IN AN EFFORT TO
RESOLVE THE UNFAIR LABOR PRACTICE CHARGE. (TR. 48, 83, 117-119, 138).
THIS MEMORANDUM PROVIDED THAT "THE OFFICIAL NOTIFICATION TO THE FOUR NAF
EMPLOYEES REGARDING THE TEMPORARY CLOSING OF THE SNACK BAR AT THE
BOWLING LANES IS HEREBY CANCELLED IN ITS ENTIRETY . . . . REST ASSURED
THAT AFGE LOCAL 1749 WILL BE NOTIFIED, IN ADVANCE OF EMPLOYEE
NOTIFICATION, ON APPROPRIATE MATTERS IN THE FUTURE." (JOINT EX. 6).
14. FLORES ASKED TUNCHES IF THE MEMO MEANT THAT HE WAS GOING TO
CANCEL THE WHOLE THING IN ITS ENTIRETY-- THE NOTIFICATION AND THE
CLOSING DOWN OF THE SNACK BAR. TUNCHES AGREED THAT WAS THE MEANING OF
THE MEMO. FLORES THEN SIGNED THE AGREEMENT. (TR. 49). FLORES ALSO
REQUESTED AT THIS MEETING THAT THE UNION BE GIVEN 30 DAYS TO NEGOTIATE
THE IMPACT OF THE CLOSING BEFORE THE RESPONDENT IMPLEMENTED THE PROPOSED
SHUT DOWN. ACCORDING TO FLORES, TUNCHES SAID THERE WOULD BE "NO
PROBLEM, THAT THEY WERE GOING TO CANCEL THE WHOLE THING UNTIL (THE UNION
WAS) GIVEN AMPLE TIME TO NEGOTIATE." (TR. 50).
15. THE PARTIES DISAGREE AS TO WHEN OR HOW THE MATTER OF THE SNACK
BAR CLOSING WAS TO BE RE-OPENED. THE UNION'S VERSION OF THE AGREEMENT
WAS THAT MANAGEMENT WOULD POSTPONE THE REPAIR WORK AND ALLOW THE
EMPLOYEES TO WORK (TR. 34) OR "TO CANCEL THE WHOLE THING IN ITS
ENTIRETY, NOTIFICATION AND THE CLOSING OF THE SNACK BAR." (TR. 49).
MANAGEMENT'S PREFERRED VERSION IS THAT ONLY THE PRIOR NOTIFICATION TO
EMPLOYEES WAS CANCELLED AND THAT MANAGEMENT WOULD START THE PROCESS
OVER. (TR.117-119, 138). /5/ I FIND THAT THERE WAS AN AGREEMENT THAT
"EVERYTHING WAS CANCELLED" AS OF THE TIME OF THE AGREEMENT, AND THAT
MANAGEMENT COULD RESTART THE PROCESS OF CLOSING THE SNACK BAR OVER AGAIN
WITH PROPER NOTICE TO THE UNION. I FIND THERE WAS NO MEETING OF THE
MINDS AS TO WHEN MANAGEMENT COULD RE-OPEN THE MATTER OF CLOSING THE
SNACK BAR. I DO NOT FIND FROM THE UNION'S REQUEST FOR 30 DAYS TO
NEGOTIATE THE IMPACT OF THE CLOSING, AND ITS VERSION OF MANAGEMENT'S
REPLY THAT THERE WOULD BE "NO PROBLEM, THAT THEY WERE GOING TO CANCEL
THE WHOLE THING UNTIL (THE UNION WAS) GIVEN AMPLE TIME TO NEGOTIATE"
(TR. 50), THAT MANAGEMENT THEREBY AGREED NOT TO CLOSE THE SNACK BAR.
THIS LANGUAGE IS NOT INCONSISTENT WITH THE VIEW THAT, WITH PROPER
NOTIFICATION TO THE UNION, MANAGEMENT COULD START THE PROCESS OVER AGAIN
AT ANY TIME.
16. FLORES INFORMED THE AFFECTED EMPLOYEES THE SNACK BAR WOULD NOT
BE SHUT DOWN AND THEN RETURNED TO WORK. THREE HOURS LATER FLORES WAS
GIVEN A LETTER BY TUNCHES WHICH NOTIFIED THE UNION THAT THE SNACK BAR
WOULD BE CLOSED ON FEBRUARY 5, 1979 AND THAT THE AFFECTED EMPLOYEES
COULD TAKE ANNUAL LEAVE OR LEAVE WITHOUT PAY DURING THE CLOSING. (TR.
51-52, 138; JOINT EX. 7).
17. AT ABOUT 2:20 P.M. OF THE SAME DAY, FLORES GAVE TUNCHES A LETTER
STATING THAT THE UNION WANTED TO NEGOTIATE THE IMPACT OF THE CLOSURE OF
THE SNACK BAR ON THE EMPLOYEES. FLORES URGED THAT A MEETING TAKE PLACE
PRIOR TO THE CLOSURE. SUCH A MEETING DID TAKE PLACE ABOUT 2:30 P.M.
THAT SAME DAY. (JOINT EX. 8).
18. AT THE MEETING ON THE AFTERNOON OF FEBRUARY 1, 1979,
REPRESENTATIVES OF THE UNION AND THE RESPONDENT ENGAGED IN DISCUSSIONS
AS TO WAYS IN WHICH THE AFFECTED EMPLOYEES MIGHT AVOID HAVING TO TAKE
ANNUAL LEAVE OR LEAVE WITHOUT PAY. SUCH SUBJECTS AS PLACING THE
EMPLOYEES ON ADMINISTRATIVE LEAVE, OR DETAILING THE EMPLOYEES TO WORK
ELSEWHERE WERE DISCUSSED. (JOINT EX. 10B; TR. 53-54, 68, 72, 85, 88,
111, 118, 122). MANAGEMENT REPRESENTATIVES CONTINUED TO TAKE THE
POSITION WITH RESPECT TO THE ADMINISTRATIVE LEAVE ISSUE THAT SUCH LEAVE
WAS FORBIDDEN BY AIR FORCE REGULATION 40-7 AND THAT THE ONLY OPTIONS
UNDER THE CIRCUMSTANCES WERE ANNUAL LEAVE OR LEAVE WITHOUT PAY. (TR.
72-73). ULTIMATELY, IT WAS AGREED THAT MANAGEMENT WOULD TRY TO FIND
WORK FOR THE AFFECTED EMPLOYEES IN OTHER NONAPPROPRIATED FUND FACILITIES
AND THAT THE PARTIES WOULD MEET AGAIN THE NEXT DAY. (TR. 69-71, 85-86,
111-112, 118-119, 122, 123, 138).
19. FOLLOWING THIS MEETING, MANAGEMENT CONTACTED VARIOUS OTHER
NONAPPROPRIATED FUND INSTRUMENTALITIES, SUCH AS THE OFFICER'S CLUB, THE
NCO CLUB, THE DAY CARE CENTER, THE RECREATION CENTER, BASE BILLETING AND
THE MARINA TO SEE IF THE EMPLOYEES COULD BE GIVEN WORK DURING THE PERIOD
IN QUESTION. (TR. 86, 111, 120).
20. MR. CRISWELL CONTACTED THE NCO CLUB, IN AN EFFORT TO SEE IF
EMPLOYEES COULD BE DETAILED THERE. HE FOUND OUT THAT THERE WAS A
POSSIBILITY OF NIGHT WORK FOR A COOK. CRISWELL THEN TOLD HIS COOK,
MARIO CARDENAS, THAT THERE WAS A POSSIBILITY OF NIGHT WORK. CARDENAS
ADVISED CRISWELL THAT HE WOULD NOT BE ABLE TO WORK NIGHTS, BECAUSE HE
WAS GOING TO NIGHT SCHOOL. (TR. 16, 19, 87-88). CRISWELL ALSO ASKED
RAUL NOYOLA, THE MAINTENANCE WORKER, IF HE WOULD BE WILLING TO WORK
ELSEWHERE IF HE COULD BE RELOCATED. NOYOLA REPLIED THAT HE WOULD.
CRISWELL STATED, "OKAY, BECAUSE I'M TRYING TO RELOCATE YOU." (TR. 26,
93-94).
21. AT A MEETING ON FEBRUARY 2, 1979, THE UNION WAS TOLD OF
MANAGEMENT'S UNSUCCESSFUL EFFORTS TO FIND WORK FOR THE EMPLOYEES. (TR.
121-122).
22. PRE-CHARGE UNFAIR LABOR PRACTICE CHARGES WERE FILED BY THE UNION
AGAINST THE RESPONDENT ON FEBRUARY 2, 1979 ALLEGING THAT THE RESPONDENT
HAD GIVEN THE UNION TOO SHORT A NOTICE PERIOD TO BARGAIN EFFECTIVELY,
HAD ENGAGED IN BAD FAITH BARGAINING, AND HAD CIRCUMVENTED THE UNION BY
GOING DIRECTLY TO EMPLOYEES ON A MATTER APPROPRIATE FOR CONSULTATION OR
NEGOTIATION WITH THE EXCLUSIVE REPRESENTATIVE. (JOINT EX. 9, 10). IN
ADDITION, THE UNION ALSO REQUESTED THAT THE CLOSING OF THE SNACK BAR BE
HELD IN ABEYANCE UNTIL THE UNION HAD TIME TO ACQUIRE THE FIRE STANDARDS
UPON WHICH THE CLOSURE WAS BEING BASED IN ORDER TO NEGOTIATE
INTELLIGENTLY. (JOINT EX. 11). MR. TUNCHES RESPONDED ON FEBRUARY 5
THAT IT WAS NECESSARY TO CLOSE THE SNACK BAR TO CONFORM THE HOOD
ASSEMBLY TO FIRE PROTECTION STANDARDS AND THAT "THE CLOSING OF THE SNACK
BAR IS A MANAGEMENT DECISION NOT SUBJECT TO NEGOTIATIONS." (JOINT EX.
12).
23. THE CONSTRUCTION OF FIRE AND DRAFT STOPS OVER THE SNACK BAR WAS
ACCOMPLISHED DURING THE PERIOD OF FEBRUARY 5-7, 1979. EMPLOYEES WHO
WERE REQUIRED TO TAKE ANNUAL LEAVE AS A CONSEQUENCE WERE: KIMI ROBERTS,
CASHIER, 8 HOURS; MARIO CARDENAS, COOK, 32 HOURS; AND RAUL NOYOLA,
MAINTENANCE WORKER, 21 HOURS. (TR. 7).
DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
RESPONDENT'S DECISION TO CLOSE THE SNACK BAR FOR A FEW DAYS BECAUSE
OF CONSTRUCTION WORK WAS NON-NEGOTIABLE AND A RESERVED MANAGEMENT RIGHT
WITHIN THE SCOPE OF 5 U.S.C. 7106(A). THE NUMBER OF EMPLOYEES TO BE
UTILILZED DURING THE PERIOD, AS WELL AS THE TECHNOLOGY, METHODS, AND
MEANS OF PERFORMING WORK, WAS NEGOTIABLE ONLY AT THE ELECTION OF THE
AGENCY PURSUANT TO SECTION 7106(B)(1). THE TYPE OF LEAVE TO BE TAKEN BY
EMPLOYEES WHO WERE NOT UTILIZED DURING SUCH SUSPENSION OF OPERATIONS WAS
GOVERNED BY AIR FORCE REGULATION 40-7, AN AGENCY-WIDE REGULATION, OVER
WHICH NATIONAL CONSULTATION RIGHTS HAD BEEN AFFORDED. HOWEVER,
RESPONDENT WAS OBLIGATED, BY SECTION 7106(B)(2) AND (3) OF THE STATUTE,
TO AFFORD THE EXCLUSIVE REPRESENTATIVE REASONABLE NOTICE OF ITS
INTENTION TO CLOSE THE SNACK BAR AND AN OPPORTUNITY TO NEGOTIATE WITH
RESPECT TO THE PROCEDURES WHICH MANAGEMENT WOULD OBSERVE IN EXERCISING
ITS AUTHORITY AND APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY
AFFECTED BY ITS EXERCISE OF AUTHORITY, UNLESS SUCH NEGOTIATIONS WOULD
PREVENT THE AGENCY FROM ACTING AT ALL.
SECTION 7114(A)(1) PROVIDES THAT A LABOR ORGANIZATION WHICH HAS BEEN
ACCORDED EXCLUSIVE RECOGNITION IS THE EXCLUSIVE REPRESENTATIVE OF THE
EMPLOYEES IN THE UNIT IT REPRESENTS AND IS ENTITLED TO ACT FOR, AND
NEGOTIATE COLLECTIVE BARGAINING AGREEMENTS COVERING ALL EMPLOYEES IN THE
UNIT. FURTHER, SECTION 7114(A)(2)(A) PROVIDES THAT AN EXCLUSIVE
REPRESENTATIVE SHALL BE GIVEN AN OPPORTUNITY TO BE REPRESENTED AT "ANY
FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE AGENCY AND
ONE OR MORE EMPLOYEES IN THE UNIT OR THEIR REPRESENTATIVES CONCERNING
ANY GRIEVANCE OR ANY PERSONNEL POLICY OR PRACTICES OR OTHER GENERAL
CONDITIONS OF EMPLOYMENT . . . . " IN CARRYING OUT THIS MANDATE, SECTION
7116(A)(5) MAKES IT AN UNFAIR LABOR PRACTICE FOR AN AGENCY "TO REFUSE TO
CONSULT OR NEGOTIATE IN GOOD FAITH WITH A LABOR ORGANIZATION AS REQUIRED
BY THIS CHAPTER."
AS FOUND ABOVE, THE MANAGER OF THE BOWLING CENTER, TERRY CRISWELL,
UPON LEARNING THAT THE SNACK BAR WOULD HAVE TO BE CLOSED, PROMPTLY
NOTIFIED REYNALDO PENA, A MECHANIC IN THE BOWLING LANES AND THE UNION'S
VICE PRESIDENT FOR NONAPPROPRIATED FUND PERSONNEL. ALTHOUGH IT WAS
RESONDENT'S PRACTICE TO NOTIFY THE UNION PRESIDENT IN WRITING OF SUCH
MATTERS, THIS NOTICE TO A RESPONSIBLE UNION OFFICER BEFORE ANY FINAL
ACTION WAS TAKEN AND PRIOR TO ITS NOTICE TO EMPLOYEES, CONSTITUTED
ADEQUATE NOTICE TO THE UNION. THE AUTHORITY HAS FOUND SPECIFIC
NOTIFICATIONS OF SIMILAR UNION OFFICERS AND STEWARDS TO BE ADEQUATE
DESPITE MORE FORMAL NOTIFICATION PRACTICES HAVING BEEN UTILIZED IN THE
PAST. INTERNAL REVENUE SERVICE (IRS) AND BROOKLYN DISTRICT OFFICE, IRS,
2 FLRA NO. 76(1980) AND INTERNAL REVENUE SERVICE, IRS AND RICHMOND
DISTRICT OFFICE, 2 FLRA NO. 43(1979).
FIFTEEN OR TWENTY MINUTES AFTER THE NOTIFICATION OF MR. PENA, THE
BOWLING CENTER MANAGER NOTIFIED THE EMPLOYEES OF THE CLOSURE AND ASKED
THEM WHETHER THEY WANTED TO TAKE ANNUAL LEAVE OR LEAVE WITHOUT PAY. THE
GENERAL COUNSEL CONTENDS THAT RESPONDENT, BY THIS CONDUCT, BY-PASSED THE
UNION AND DEALT DIRECTLY WITH EMPLOYEES.
THE FEDERAL LABOR RELATIONS COUNCIL IN CONSIDERING A CASE ARISING
UNDER EXECUTIVE ORDER 11491, AS AMENDED, DEPARTMENT OF THE NAVY, NAVAL
AIR STATION, FALLON, NEVADA, A/SLMR NO. 432, FLRC NO. 74A-80, 3 FLRC
697(1975) HELD THAT THE FOLLOWING CRITERIA SHOULD BE USED IN DETERMINING
WHETHER A COMMUNICATION AMOUNTS TO AN ATTEMPT TO BYPASS THE EXCLUSIVE
REPRESENTATIVE:
IN DETERMINING WHETHER A COMMUNICATION IS VIOLATIVE OF THE ORDER, IT
MUST BE JUDGED
INDEPENDENTLY AND A DETERMINATION MADE AS TO WHETHER THAT
COMMUNICATION CONSTITUTES, FOR
EXAMPLE, AN ATTEMPT BY AGENCY MANAGEMENT TO DEAL OR NEGOTIATE
DIRECTLY WITH UNIT EMPLOYEES OR
TO THREATEN OR PROMISE BENEFITS TO EMPLOYEES. IN REACHING THIS
DETERMINATION, BOTH THE
CONTENT OF THE COMMUNICATION AND THE CIRCUMSTANCES SURROUNDING IT
MUST BE CONSIDERED. MORE
SPECIFICALLY, ALL COMMUNICATIONS BETWEEN AGENCY MANAGEMENT AND UNIT
EMPLOYEES OVER MATTERS
RELATING TO THE COLLECTIVE BARGAINING RELATIONSHIP ARE NOT VIOLATIVE.
RATHER COMMUNICATIONS
WHICH, FOR EXAMPLE, AMOUNT TO AN ATTEMPT TO BYPASS THE EXCLUSIVE
REPRESENTATIVE AND BARGAIN
DIRECTLY WITH EMPLOYEES, OR WHICH URGE EMPLOYEES TO PUT PRESSURE ON
THE REPRESENTATIVE TO TAKE
A CERTAIN COURSE OF ACTION, OR WHICH THREATEN OR PROMISE BENEFITS TO
EMPLOYEES ARE VIOLATIVE
OF THE ORDER. (FOOTNOTE OMITTED).
ALL THE BOWLING MANAGER DID WAS TO NOTIFY THE EMPLOYEES INDIVIDUALLY
OF THE ANTICIPATED CLOSURE OF THE SNACK BAR AND OF THE LEAVE OPTIONS
AVAILABLE TO THEM UNDER THE REGULATION DURING SUCH CLOSURE. HE WAS NOT
A PERSONNEL OFFICER NOR WAS HE SHOWN TO HAVE HAD AUTHORITY TO ESTABLISH
PERSONNEL POLICIES OR PRACTICES. HE DID NOT ATTEMPT TO BARGAIN DIRECTLY
WITH THE EMPLOYEES CONCERNING THE PROCEDURES WHICH MANAGEMENT WOULD
USE
IN CLOSING THE SNACK BAR OR CONCERNING OTHER POSSIBLE ARRANGEMENTS FOR
THEM OTHER THAN LEAVE. I CONCLUDE, THEREFORE, THAT THIS WAS NOT A
FORMAL DISCUSSION UNDER SECTION 7114(A)(2)(A) AT WHICH THE EXCLUSIVE
REPRESENTATIVE WAS ENTITLED TO AN OPPORTUNITY TO BE REPRESENTED AND THAT
THE COMMUNICATION WAS NOT AN ATTEMPT BY THE RESPONDENT TO BYPASS THE
EXCLUSIVE REPRESENTATIVE AND COMMUNICATE DIRECTLY WITH UNIT EMPLOYEES
REGARDING COLLECTIVE BARGAINING MATTERS, OR TO UNDERMINE THE STATUS OF
THE EXCLUSIVE REPRESENTATIVE.
THE GENERAL COUNSEL CONTENDS THAT RESPONDENT RESCINDED AN AGREEMENT
WITH THE UNION NOT TO CLOSE THE SNACK BAR AND TO PERMIT EMPLOYEES TO
WORK, THEREBY ENGAGING IN AN ATTEMPT TO UNDERMINE THE UNION AND TO AVOID
GOOD FAITH BARGAINING. AS FOUND ABOVE, WHILE THERE WAS AN AGREEMENT
THAT "EVERYTHING WAS CANCELLED," IT WAS ALSO A PART OF THE AGREEMENT
THAT MANAGEMENT COULD COMMENCE THE PROCESS OF CLOSING THE SNACK BAR
AGAIN WITH PROPER NOTICE TO THE UNION. THERE WAS NO AGREEMENT AS TO
WHEN MANAGEMENT COULD START THE PROCESS OVER AGAIN. MANAGEMENT DID
START THE PROCESS AGAIN, WITHIN A MATTER OF HOURS, BY NOTIFYING THE
UNION, AND, UPON THE UNION'S REQUEST, THE PARTIES DID ENGAGE IN GOOD
FAITH BARGAINING CONCERNING THE IMPACT AND IMPLEMENTATION OF THE
CLOSURE. /6/ THUS, IT IS CONCLUDED THAT THE PREPONDERANCE OF THE
EVIDENCE DOES NOT ESTABLISH THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1)
AND (5) OF THE STATUTE BY RESCINDING AN AGREEMENT.
THE GENERAL COUNSEL ALSO ALLEGES THAT RESPONDENT VIOLATED SECTIONS
7116(A)(1) AND (5) OF THE STATUTE BY BYPASSING THE UNION AND DEALING
DIRECTLY WITH EMPLOYEES WHEN THE BOWLING CENTER MANAGER, TERRY CRISWELL,
CONTACTED TWO EMPLOYEES TO DETERMINE IF THEY WOULD BE WILLING TO WORK
ELSEWHERE DURING THE CLOSURE OF THE SNACK BAR.
AS NOTED, DURING THE IMPACT AND IMPLEMENTATION BARGAINING CONCERNING
THE CLOSING OF THE SNACK BAR, MANAGEMENT AGREED TO THE UNION'S DEMAND
THAT IT ATTEMPT TO FIND WORK FOR THE AFFECTED EMPLOYEES IN OTHER
NONAPPROPRIATED FUND FACILITIES. AS PART OF THIS EFFORT, CRISWELL
LEARNED OF THE POSSIBILITY OF NIGHT WORK FOR A COOK AND ASKED THE SNACK
BAR COOK IF HE COULD WORK NIGHTS. CRISWELL ALSO ASKED THE SNACK BAR
MAINTENANCE WORKER IF HE WOULD BE WILLING TO WORK ELSEWHERE AND NOTED
THAT HE WAS MAKING AN EFFORT TO RELOCATE HIM DURING THE CLOSURE.
AFTER CONSIDERING THE CONTENT OF THE COMMUNICATIONS AND THE
CIRCUMSTANCES SURROUNDING THEM, AS SUGGESTED BY THE FALLON DECISION,
SUPRA, I CONCLUDE THAT A PREPONDERANCE OF THE EVIDENCE DOES NOT SUPPORT
A VIOLATION OF THE STATUTE. THE BOWLING CENTER MANAGER COULD REASONABLY
HAVE CONCLUDED THAT SUCH COMMUNICATION WITH THE TWO EMPLOYEES WAS
NECESSARY IN ORDER TO CARRY OUT MANAGEMENT'S AGREEMENT WITH THE UNION TO
ATTEMPT TO FIND WORK FOR THE AFFECTED EMPLOYEES, ESPECIALLY SINCE
MANAGEMENT WAS TO REPORT BACK TO THE UNION THE VERY NEXT DAY ON THE
SUCCESS OF ITS EFFORTS. THE CONVERSATIONS WERE CONDUCTED SOLELY TO
DISSEMINATE AND GATHER NECESSARY PERSONAL INFORMATION TO THIS END. THEY
WERE NOT FORMAL DISCUSSIONS WITHIN THE SCOPE OF SECTION 7114(A)(2)(A).
THE DISCUSSIONS DID NOT CONCERN ANY PERSONNEL POLICY OR PRACTICES OR
CONDITIONS OF EMPLOYMENT AFFECTING EMPLOYEES IN THE UNIT GENERALLY. SEE
124 CONG.REC. H9634, (DAILY ED. SEPT. 13, 1978). CRISWELL DID NOT
SOLICIT OR ENTERTAIN COUNTERPROPOSALS TO CHANGE MANAGEMENT'S POSITION,
NOR DID HE ATTEMPT TO NEGOTIATE OR DEAL WITH THE EMPLOYEES IN ORDER TO
OBTAIN THEIR AGREEMENT TO MANAGEMENT'S POSITION, OR TO PUT PRESSURE ON
THE UNION TO TAKE A CERTAIN COURSE OF ACTION.
HAVING CONCLUDED THAT A PREPONDERANCE OF THE EVIDENCE DOES NOT
ESTABLISH A VIOLATION BY RESPONDENT OF SECTIONS 7116(A)(1) AND (5), AS
ALLEGED, IT IS RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER
PURSUANT TO 5 U.S.C. 7118(A)(8) AND 5 C.F.R. 2423.29(C):
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 6-CA-144 BE, AND
IT HEREBY IS, DISMISSED.
GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DATED: JUNE 6, 1980
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ A MOTION WAS MADE, AND GRANTED, AT THE HEARING TO CONFORM THE
COMPLAINT TO THE PROOF, WITH REGARD TO DATES, AND TO INCLUDE AN ALLEGED
SECOND BY-PASS OF THE UNION IN FEBRUARY 1979 WHEN RESPONDENT ALLEGEDLY
DEALT DIRECTLY WITH EMPLOYEES CONCERNING WHETHER OR NOT THE EMPLOYEES
WOULD BE INTERESTED IN OTHER JOBS WHILE THE SNACK BAR WAS CLOSED. (TR.
152-154). THE ALLEGATION WAS FULLY LITIGATED AT THE HEARING.
/2/ THE ACTUAL WORK PERFORMED INVOLVED THE INSTALLATION OF FIRE AND
DRAFT STOPS IN THE FALSE CEILING ABOVE THE SNACK BAR AREA TO COMPLY WITH
AIR FORCE MANUAL 88-15, "AIR FORCE DESIGN MANUAL CRITERIA AND STANDARDS
FOR AIR FORCE CONSTRUCTION," DATED JANUARY 8, 1975, AND WITH NATIONAL
FIRE CODES. (JOINT EX. 1 & 14; TR. 92). WHILE THIS WORK WAS SUPPOSED
TO HAVE INCLUDED "CORRECTION OF HOOD AND DUCT DEFICIENCIES" (JOINT EX.
2A), THE HOOD WAS NOT LOWERED AND, AFTER CONSTRUCTION WAS COMPLETED, MR.
CRISWELL INITIATED A REQUEST TO HAVE THIS ACCOMPLISHED, BUT IT WAS
DISAPPROVED. (RESPONDENT'S EX. 1; TR. 76-78, 102).
/3/ MR. PENA DENIED THAT HE WAS INFORMED BY CRISWELL OF THE IMPENDING
CLOSURE OF THE SNACK BAR. (TR. 32, 36-37).
/4/ THE UNION FOLLOWED THE LONG-ESTABLISHED PROCEDURE PRESCRIBED
UNDER EXECUTIVE ORDER 11491, AS AMENDED, AND ITS IMPLEMENTING
REGULATIONS, AS THE NEW STATUTE HAD JUST BECOME EFFECTIVE ON JANUARY 11,
1979, ONLY A FEW WEEKS BEFORE THE UNION'S ACTION ON JANUARY 30.
/5/ MANAGEMENT WITNESS CRISWELL TESTIFIED, IN EFFECT, THAT THE
UNDERSTANDING WAS THAT EVERYTHING WAS CANCELLED, BUT THE PROCEEDINGS TO
CLOSE THE SNACK BAR COULD THEN RE-START AGAIN WITH WRITTEN NOTICE TO THE
UNION. NO TIME WAS ESTABLISHED FOR THE NEW PROCEEDINGS. (TR. 83-85).
FROM ALL THE EVIDENCE, I FIND THAT THIS VERSION IS MOST CREDIBLE.
/6/ WHILE THE UNION DID ALLEGE THAT THE FINAL NOTICE WAS TOO SHORT TO
BARGAIN EFFECTIVELY, THE UNION'S MAIN NEGOTIABLE CONCERN WAS THAT
MANAGEMENT ATTEMPT TO FIND THE EMPLOYEES OTHER WORK. MANAGEMENT
ATTEMPTED TO DO THIS, AS AGREED. THE UNION ALSO BASED ITS REQUEST THAT
THE CLOSURE BE HELD IN ABEYANCE ON THE NEED TO ACQUIRE THE FIRE
STANDARDS UPON WHICH THE CLOSURE WAS BASED. AS NOTED, THE DECISION TO
CLOSE THE SNACK BAR AND THE TYPE OF LEAVE UNDER THE CIRCUMSTANCES WERE
NON-NEGOTIABLE. THERE IS NO ALLEGATION THAT MANAGEMENT FAILED TO
FURNISH DATA REASONABLY AVAILABLE AND NECESSARY FOR FULL AND PROPER
DISCUSSION, UNDERSTANDING AND NEGOTIATION OF SUBJECTS WITHIN THE SCOPE
OF COLLECTIVE BARGAINING PURSUANT TO SECTION 7114(B)(4).