10:0281(53)CA - Air Force, Air Force Logistics Command, Wright-Patterson AFB, OH and AFGE Council 214 -- 1982 FLRAdec CA
[ v10 p281 ]
10:0281(53)CA
The decision of the Authority follows:
10 FLRA No. 53
DEPARTMENT OF THE AIR FORCE,
AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 214, AFL-CIO
Charging Party
Case Nos. 5-CA-470
5-CA-517
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE
ABOVE-ENTITLED CONSOLIDATED PROCEEDING FINDING THAT THE RESPONDENT HAD
ENGAGED IN CERTAIN OF THE UNFAIR LABOR PRACTICES ALLEGED IN THE
COMPLAINT AND RECOMMENDING THAT IT BE ORDERED TO CEASE AND DESIST
THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION. THE JUDGE ALSO FOUND
THAT CERTAIN ALLEGATIONS OF THE COMPLAINT SHOULD BE DISMISSED IN THEIR
ENTIRETY. THEREAFTER, BOTH THE RESPONDENT AND THE GENERAL COUNSEL FILED
EXCEPTIONS TO THE JUDGE'S DECISION AND THE RESPONDENT FILED AN
OPPOSITION TO THE GENERAL COUNSEL'S EXCEPTIONS.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
JUDGE MADE AT THE HEARINGS AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND THE ENTIRE RECORD IN THE SUBJECT CASES, THE
AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS. /1/
IN ADOPTING THE JUDGE'S CONCLUSION THAT RESPONDENT'S REFUSAL TO
AUTHORIZE PAYMENT OF TRAVEL AND PER DIEM EXPENSES FOR THE UNION'S
DESIGNATED NEGOTIATORS FOR MID-TERM BARGAINING WAS VIOLATIVE OF THE
STATUTE, THE AUTHORITY FINDS WITHOUT MERIT THE RESPONDENT'S DEFENSE
THAT, ASSUMING IT HAD AN OBLIGATION UNDER SECTION 7131(A) OF THE STATUTE
TO PROVIDE PER DIEM AND TRAVEL EXPENSES, IT COULD REQUIRE JUSTIFICATION
FROM THE UNION FOR THE SELECTION OF OUT-OF-TOWN NEGOTIATORS. THUS, A
UNION CLEARLY HAS THE STATUTORY PREROGATIVE TO DESIGNATE ITS OWN
REPRESENTATIVES IN NEGOTIATIONS. /2/
ORDER
PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
AUTHORITY AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, IT IS HEREBY ORDERED THAT THE DEPARTMENT OF THE AIR
FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO PROVIDE TO LYNN TOMPKINS, WILLIAM SHOELL
AND JOSEPH SCHUCHARDT
OFFICIAL TIME, INCLUDING NECESSARY TRAVEL AND PER DIEM EXPENSES, IN
COMPLIANCE WITH SECTION
7131(A) OF THE STATUTE, FOR THE TIME THEY WERE ENGAGED IN
REPRESENTING THE AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, COUNCIL 214, AFL-CIO, THE EMPLOYEES'
EXCLUSIVE REPRESENTATIVE, DURING
MID-TERM NEGOTIATION.
(B) CONDITIONING THE PAYMENT OF TRAVEL AND PER DIEM EXPENSES INCURRED
BY ITS EMPLOYEES
PURSUANT TO SECTION 7131(A) OF THE STATUTE UPON THE UNION SHOWING
JUSTIFICATION FOR THE
DESIGNATION OF ITS NEGOTIATORS.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING 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) POST AT ITS VARIOUS INSTALLATIONS OF THE AIR FORCE LOGISTICS
COMMAND WHEREIN UNIT
EMPLOYEES ARE LOCATED 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 AN AUTHORIZED
REPRESENTATIVE OF THE RESPONDENT AND SHALL BE POSTED AND MAINTAINED
FOR 60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING BULLETIN BOARDS AND ALL
OTHER PLACES WHERE
NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. REASONABLE STEPS SHALL
BE TAKEN TO INSURE THAT
SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
(B) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE
REGIONAL DIRECTOR, REGION V, FEDERAL LABOR RELATIONS AUTHORITY, IN
WRITING, WITHIN 30 DAYS
FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
IT IS HEREBY FURTHER ORDERED THAT THE REMAINING ALLEGATIONS OF THE
COMPLAINT IN CASE NOS. 5-CA-470 AND 5-CA517 BE, AND THEY HEREBY ARE,
DISMISSED.
ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT FAIL OR REFUSE TO PROVIDE TO LYNN TOMPKINS, WILLIAM
SHOELL AND JOSEPH SCHUCHARDT OFFICIAL TIME, INCLUDING NECESSARY TRAVEL
AND PER DIEM EXPENSES, IN COMPLIANCE WITH SECTION 7131(A) OF THE
STATUTE, FOR THE TIME THEY WERE ENGAGED IN REPRESENTING THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 214, AFL-CIO, THE EMPLOYEES'
EXCLUSIVE REPRESENTATIVE, DURING MID-TERM NEGOTIATIONS.
WE WILL NOT CONDITION THE PAYMENT OF TRAVEL AND PER DIEM EXPENSES
INCURRED BY OUR EMPLOYEES PURSUANT TO SECTION 7131(A) OF THE STATUTE,
UPON THE UNION SHOWING JUSTIFICATION FOR THE DESIGNATION OF ITS
NEGOTIATORS.
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
STATUTE.
(AGENCY OR ACTIVITY)
DATE: BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE, OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, REGION V, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS
SUITE A-1359, 175 WEST JACKSON BOULEVARD, CHICAGO, ILLINOIS 60604, AND
WHOSE TELEPHONE NUMBER IS (312) 866-3468.
-------------------- ALJ$ DECISION FOLLOWS --------------------
LIEUTENANT COLONEL FRANKLIN E. WRIGHT
FOR THE RESPONDENT
SHEILA A. REILLY, ESQUIRE
FOR THE GENERAL COUNSEL
APPEARING BY BRIEF ONLY:
JOHN W. MULHOLLAND
FOR THE CHARGING PARTY
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS PROCEEDING UNDER THE FEDERAL SERVICES LABOR-MANAGEMENT RELATIONS
STATUTE, 5 U.S.C, 7101 ET SEQ. /3/ AND THE FINAL RULES AND REGULATIONS
ISSUED THEREUNDER, FEDERAL REGISTER, VOL. 45, NO. 12, JANUARY 29, 1980,
5 C.F.R. SEC. 2415.1 ET SEQ., WAS INITIATED BY A CHARGE FILED ON APRIL
3, 1980, IN CASE NO. 5-CA-470, ALLEGING VIOLATIONS OF SECS. 16(A)(1),
(5) AND (8) OF THE STATUTE (G.C. EXH. 1(A)), AND BY A CHARGE FILED ON
MAY 7, 1980, IN CASE NO. 5-CA-517, ALSO ALLEGING VIOLATIONS OF SECS.
16(A)(1), (5) AND (8) OF THE STATUTE (G.C. EXH. 1(C)). ON JULY 15,
1980, AN ORDER CONSOLIDATING CASES, COMPLAINT AND NOTICE OF HEARING
ISSUED (G.C. EXH. 1(E)), WHICH SET THE DATE OF HEARING FOR AUGUST 21,
1980. ON AUGUST 11, 1980, AN ORDER RESCHEDULING THE HEARING FOR OCTOBER
1, 1980, ISSUED (G.C. EXH. 1(I)), PURSUANT TO WHICH A HEARING WAS DULY
HELD BEFORE THE UNDERSIGNED IN DAYTON, OHIO, ON OCTOBER 1, 1980.
BOTH PARTIES WERE REPRESENTED, WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES INVOLVED HEREIN; AND THE PARTIES WERE AFFORDED
OPPORTUNITY TO PRESENT ORAL ARGUMENT AT THE CONCLUSION OF THE TESTIMONY.
AT THE CLOSE OF THE HEARING, BECAUSE OF THE SCHEDULED ABSENCE OF
COUNSEL FOR RESPONDENT OUT OF THE COUNTRY, NOVEMBER 18, 1980, WAS FIXED
AS THE DATE FOR MAILING POST-HEARING BRIEFS AND THE PARTIES, AS WELL AS
THE CHARGING PARTY, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, TIMELY
MAILED VERY HELPFUL BRIEFS, RECEIVED ON OR BEFORE NOVEMBER 24, 1980,
WHICH HAVE BEEN CAREFULLY CONSIDERED. UPON THE BASIS OF THE ENTIRE
RECORD, /4/ INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR
DEMEANOR, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
FINDINGS /5/
1. PRIOR TO 1978, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(HEREINAFTER AFGE) REPRESENTED APPROXIMATELY TWENTY-ONE BARGAINING UNITS
AT SEVEN INSTALLATIONS OF THE AIR FORCE LOGISTICS COMMAND. ON JANUARY
13, 1978, THESE UNITS WERE CONSOLIDATED INTO A SINGLE BARGAINING UNIT,
WHICH ENCOMPASSES ABOUT 70,000 CIVILIAN EMPLOYEES, AND THE NATIONAL
OFFICE OF AFGE IS THE CERTIFIED EXCLUSIVE REPRESENTATIVE. COUNCIL 214
IS THE AGENT OF AFGE'S NATIONAL OFFICE AND THE PRESIDENT OF COUNCIL 214
AT ALL TIMES MATERIAL WAS LOCATED AT WARNER ROBINS, GEORGIA. THE UNIT
INCLUDES AFLC FACILITIES AT HILL AIR FORCE BASE, OGDEN, UTAH; KELLY AIR
FORCE BASE, SAN ANTONIO, TEXAS; MCCELLAN AIR FORCE BASE, SACRAMENTO,
CALIFORNIA; NEWARK AIR FORCE STATION, NEWARK, OHIO, ROBINS AIR FORCE
BASE, WARNER ROBINS, GEORGIA; TINKER AIR FORCE BASE, OKLAHOMA CITY,
OKLAHOMA; WRIGHT-PATTERSON AIR FORCE BASE, DAYTON, OHIO; DETACHMENT
21, AFCMC, AFPRO, BOEING, WICHITA, KANSAS; AND CATALOGUING AND
STANDARDIZATION OFFICE, BATTLE CREEK, MICHIGAN.
2. FROM JANUARY 13, 1978, RESPONDENT NOTIFIED THE NATIONAL OFFICE OF
AFGE AND THE PRESIDENT OF COUNCIL 214 (HEREINAFTER, ALSO REFERRED TO AS
"UNION") WITH RESPECT TO MID-TERM CHANGES; HOWEVER, DELAY IN THE
COMMENCEMENT OF NEGOTIATIONS RESULTED EVEN THROUGH AFGE, IF IT DEMANDED
BARGAINING, WOULD DESIGNATE AN OFFICIAL OF LOCAL 1138, LOCATED AT
WRIGHT-PATTERSON AFB, TO CONDUCT SUCH MID-TERM BARGAINING. BECAUSE OF
SUCH DELAYS, RESPONDENT CONTACTED MR. BLAYLOCK, NATIONAL PRESIDENT OF
AFGE, AND REQUESTED THAT AFGE PROVIDE SOMEONE AT WRIGHT-PATTERSON WITH
WHOM RESPONDENT COULD DEAL CONCERNING MID-TERM PROPOSALS. RESPONDENT
OFFERED OFFICE SPACE AND OTHER FACILITIES AND AFGE ESTABLISHED THE
OFFICE OF EXECUTIVE DIRECTOR, COUNCIL 214, AT WRIGHT-PATTERSON AND MR.
PAUL KETCHERSIDE WAS APPOINTED EXECUTIVE DIRECTOR IN JANUARY, 1980.
(SEE, ALSO, RES. EXH. 3).
3. FROM JANUARY 13, 1978, TO MARCH 26, 1980, UNION NEGOTIATORS
DESIGNATED FOR MID-TERM NEGOTIATIONS WERE EXCLUSIVELY OFFICIALS OF LOCAL
1138 OR MR. KETCHERSIDE.
4. ON FEBRUARY 22, 1980, RESPONDENT NOTIFIED THE UNION OF A
PROTOTYPE TEST OF AN ACTUAL HOUR ACCOUNTING SYSTEM FOR THE REPORTING AND
ACCOUNTING OF DIRECT LABOR HOURS EXPENDED ON THE REPAIR OF CERTAIN
SUBASSEMBLIES (G.C. EXH. 12). THE PROTOTYPE SERVICE TEST INVOLVED ONLY
A SMALL AREA (ABOUT EIGHTY OR NINETY EMPLOYEES AT EACH OF THE THREE
LOCATIONS) OF THE DIRECTORATE OF MAINTENANCE AT HILL, KELLY AND ROBINS
AIR FORCE BASES; HOWEVER, IF THE SYSTEM WERE ADOPTED, IT WOULD AFFECT
THE MAINTENANCE EMPLOYEES WHO MAKE UP ABOUT 50 PER CENT OF THE
BARGAINING UNIT, I.E., ROUGHLY 35,000 EMPLOYEES. ON FEBRUARY 26, 1980,
MR. KETCHERSIDE DEMANDED BARGAINING ON THE PROTOTYPE TEST AND AGREED TO
A BRIEFING SCHEDULED FOR MARCH 6 (G.S. EXH. 13). A BRIEFING WAS GIVEN
TO MR. KETCHERSIDE AND TO MR. MULHOLLAND, DIRECTOR, LABOR-MANAGEMENT
SERVICES FOR THE NATIONAL OFFICE, AFGE, AND OTHER BRIEFINGS WERE GIVEN
TO OFFICIALS OF THE LOCAL UNIONS AT THE THREE BASES (HILL, KELLY, AND
ROBINS) WHICH WERE TO PARTICIPATE IN THE TEST. MR. KETCHERSIDE WAS
ASKED TO PROVIDE PROPOSALS ABOUT WHICH HE WISHED TO BARGAIN AND HE
TENTATIVELY AGREED TO DO SO BY MARCH 21; HOWEVER, NO PROPOSALS WERE
PROVIDED. INSTEAD, ON MARCH 26, MR. KETCHERSIDE NAMED AS UNION
NEGOTIATORS THE FOLLOWING PERSONS: MR. WILLIAM SHOELL, HILL AFB, UTAH;
AND MR. JOSEPH SCHUCHARDT, KELLY AFB, TEXAS. MR. KETCHERSIDE DEMANDED
THAT TRAVEL AND PER DIEM EXPENSES BE PROVIDED THESE EMPLOYEES (G.C. EXH.
15). ON FEBRUARY 27, 1980, MR. KETCHERSIDE HAD REQUESTED THAT
RESPONDENT GIVE HIM ITS OFFICIAL POSITION IN REGARD TO THE FEDERAL LABOR
RELATIONS AUTHORITY'S INTERPRETATION AND GUIDANCE, CASE NOS. O-PS-3 AND
O-PS-6, ISSUED DECEMBER 19, 1979 (G.C. EXH. 17); AND, ON MARCH 25,
1980, RESPONDENT REPLIED, STATING, IN PART, AS FOLLOWS:
"WE BELIEVE THE SUBJECT OF TRANSPORTATION AND PER DIEM FOR UNION
NEGOTIATORS IS
NEGOTIABLE. WHETHER THE EMPLOYER WOULD PAY TRAVEL AND PER DIEM MUST
BE EVALUATED ON THE
CIRCUMSTANCES OF A PARTICULAR REQUEST AND THE AVAILABILITY OF FUNDS."
(G.C. EXH. 18).
IN HIS LETTER OF MARCH 26, 1980, IN WHICH HE DESIGNATED MESSRS.
SHOELL AND SCHUCHARDT AS UNION NEGOTIATORS AND DEMANDED PER DIEM AND
TRAVEL PAY FOR THEM, MR. KETCHERSIDE REFERRED TO RESPONDENT'S LETTER OF
MARCH 25 WHICH HE FOUND "INTERESTING" BUT ASSERTED, "THAT THIS PROVISION
(5 U.S.C. 7131) . . . HAS BEEN INTERPRETED BY THE FEDERAL LABOR
RELATIONS AUTHORITY AS ENTITLING EMPLOYEES TO TRAVEL AND PER DIEM TO
ACCOMPLISH THEIR COLLECTIVE BARGAINING RESPONSIBILITIES. THEREFORE, WE
FULLY EXPECT THIS RIGHT TO BE HONORED." (G.C. EXH. 15) ON MARCH 31,
1980, RESPONDENT ADVISED MR. KETCHERSIDE, IN PART, THAT,
". . . TO DATE YOU HAVE NOT SUBMITTED ANY UNION PROPOSALS.
"WE DO NOT SEE ANY ADVERSE AFFECT (SIC) ON EMPLOYEES AS A RESULT OF
THIS SERVICE TEST. IN
THE ABSENCE OF SPECIFIC UNION PROPOSALS, THE EMPLOYER IS PROCEEDING
TO INITIATE THE SERVICE
TEST ON 1 APRIL 1980." (G.C. EXH. 16).
5. ON FEBRUARY 11, 1980, RESPONDENT INFORMED MR. KETCHERSIDE OF
"PROJECT PACER SPAN", COVERING THE CIVIL ENGINEERING ORGANIZATIONS
WITHIN AFLC, WITH A TARGET DATE FOR IMPLEMENTATION OF MARCH 11, 1980
(G.C. EXH. 3). THE UNION RESPONDED WITH A REQUEST TO POSTPONE THE DATE
OF IMPLEMENTATION AND A DEMAND TO BARGAIN (G.C. EXH. 4). RESPONDENT
GRANTED THE UNION'S REQUEST AND APRIL 1 WAS FIXED AS THE DATE FOR
IMPLEMENTATION (G.C. EXH. 5). ON MARCH 27, 1980, THE UNION SUBMITTED
COUNTER PROPOSALS (G.C. EXH. 7) AND DESIGNATED MR. LYNN TOMPKINS, TINKER
AFB, OKLAHOMA, AS THE UNION NEGOTIATOR AND DEMANDED TRAVEL, PER DIEM AND
OFFICIAL TIME FOR HIM (G.C. EXH. 8). RESPONDENT RESPONDED BY LETTER
DATED APRIL 18, 1980, STATING, IN PART, AS FOLLOWS:
" . . . WHILE YOUR REQUEST THAT THE EMPLOYER PROVIDE OFFICIAL TIME,
TRAVEL AND PER DIEM
EXPENSES FOR A UNION NEGOTIATOR FROM OC-ALC IS QUITE CLEAR, YOUR
LETTER LACKS SUFFICIENT
JUSTIFICATION TO SUPPORT THE EXPENDITURE OF GOVERNMENT FUNDS.
. . . .
" . . . WE BELIEVE AFGE HAS SUFFICIENT CAPABILITY AT WRIGHT-PATTERSON
AFB TO ADEQUATELY
REPRESENT THE UNION IN NEGOTIATIONS ON THIS SUBJECT, WITHOUT CAUSING
THE EXPENDITURE OF
GOVERNMENT TRAVEL FUNDS." (G.C. EXH. 9).
BY LETTER DATED APRIL 22, 1980, MR. KETCHERSIDE RESPONDED AND STATED
EMPHATICALLY, INTER ALIA, THAT,
" . . . THE DESIGNATION OF UNION REPRESENTATIVES AND/OR NEGOTIATORS
IS INTERNAL UNION
BUSINESS AND THE EMPLOYER CANNOT DICTATE WHO OUR NEGOTIATORS SHALL
BE.
"YOU SHOULD FURTHER BE ADVISED THAT THE PAYMENT OF TRAVEL, PER DIEM,
AND OFFICIAL TIME
COSTS IS A STATUTORY ENTITLEMENT AND THE UNION DECLINES TO BARGAIN ON
ANY LESSER PROVISION. A
REFUSAL BY THE EMPLOYER TO PAY TRAVEL, PER DIEM, AND OFFICIAL TIME
WILL BE VIEWED AS A REFUSAL
TO BARGAIN.
"PLEASE UNDERSTAND THE UNION DESIRES TO PROCEED ON NEGOTIATING ON THE
PACER SPAN PLAN FOR
CIVIL ENGINEERING AS SOON AS POSSIBLE. A REFUSAL BY THE EMPLOYER TO
PROVIDE UNION NEGOTIATORS
FOR SUCH NEGOTIATIONS SERVES NO MORE PURPOSE THAN TO DELAY THE
NEGOTIATIONS
. . . . " (G.C. EXH. 10).
BY LETTER DATED APRIL 29, 1980 (G.C. EXH. 11), RESPONDENT ADVISED MR.
KETCHERSIDE THAT RESPONDENT HAD NO INTEREST IN WHO THE UNION APPOINTED
AS ITS REPRESENTATIVES BUT THAT THE EXPENDITURE OF GOVERNMENT MONIES ON
TRAVEL AND PER DIEM EXPENSES REQUIRED JUSTIFICATION IN ACCORDANCE WITH
THE JOINT TRAVEL REGULATIONS ISSUED BY THE DEPARTMENT OF DEFENSE.
RESPONDENT FURTHER STATED THAT THE PROJECT PACER SPAN WOULD BE
IMPLEMENTED MAY 12, 1980, UNLESS THE UNION MET WITH A REPRESENTATIVE OF
RESPONDENT PRIOR TO MAY 12, 1980. THERE WAS NO SUCH MEETING AND PROJECT
PACER SPAN WAS IMPLEMENTED ON, OR ABOUT, MAY 12, 1980.
CONCLUSIONS
RESPONDENT'S POSITION, WHICH, IF THIS WERE A MATTER OF FIRST
IMPRESSION, MIGHT BE PERSUASIVE, IS THAT ITS OBLIGATION TO PAY UNION
NEGOTIATORS' TRAVEL AND PER DIEM EXPENSES IS SUBJECT TO THE STANDARDS
FOR TRAVEL AND PER DIEM AS SET FORTH IN AGENCY REGULATIONS, HERE, JOINT
TRAVEL REGULATIONS OF THE DEPARTMENT OF DEFENSE AND AIR FORCE REGULATION
10-7. THUS, RESPONDENT ASSERTS, INTER ALIA, THAT:
" . . . THE RESPONDENT . . . MAINTAINS THAT IT MAY REASONABLY, AND
INDEED IS REQUIRED TO,
APPLY THE STANDARDS FOR TRAVEL AND PER DIEM AUTHORIZATION TO REQUESTS
FOR UNION NEGOTIATORS
JUST AS IT EVALUATES REQUESTS FOR TRAVEL OF OTHER EMPLOYEES.
" . . . THE FACTS OF THIS CASE MAKE CLEAR THAT THE RESPONDENT HAS
DONE NOTHING MORE THAN
TREAT THE EMPLOYEES DESIGNATED BY THE UNION AS THEIR NEGOTIATORS JUST
AS ANY OTHER EMPLOYEE OF
THE RESPONDENT. THE JOINT TRAVEL REGULATIONS ARE ISSUED BY THE
DEPARTMENT OF DEFENSE AND ARE
APPLICABLE THROUGHOUT THE THREE MILITARY DEPARTMENTS. THESE
REGULATIONS REQUIRE THAT THE
ORDER ISSUING AUTHORITY (I.E., THE PERSON AUTHORIZING THE TRAVEL AND
EXPENDITURE OF PER DIEM
FUNDS) DETERMINE THAT THE TRIP IS ESSENTIAL, THAT THE MISSION CANNOT
BE SATISFACTORILY
ACCOMPLISHED BY OTHER MEANS, THAT THE DURATION OF THE TRIP IS NO
LONGER THAN NECESSARY, AND
THE NUMBER OF PERSONS MAKING THE TRIP IS HELD TO A MINIMUM. FURTHER
THE DEPARTMENT OF THE AIR
FORCE HAS ISSUED AIR FORCE REGULATIONS 10-7 WHICH HAS SIMILAR
REQUIREMENTS INCLUDING A
DETERMINATION THAT PERSONNEL IN CLOSE PROXIMITY TO THE TEMPORARY DUTY
STATION CANNOT
EFFECTIVELY PERFORM THE MISSION . . . .
"FROM THE TIME OF THE CONSOLIDATION OF ALL AFGE UNITS IN AFLC INTO A
SINGLE BARGAINING
UNIT, THE PARTIES HAVE ENGAGED IN MID-TERM BARGAINING AT HQ AIR FORCE
LOGISTICS COMMAND,
WRIGHT-PATTERSON AFB, OHIO. THE UNION'S REPRESENTATIVES AT THESE
SESSIONS HAVE BEEN EITHER
OFFICIALS OF LOCAL 1138, LOCATED AT WRIGHT-PATTERSON OR MR. PAUL
KETCHERSIDE, EXECUTIVE
DIRECTOR OF AFGE, COUNCIL 214, WHO WAS PLACED AT WRIGHT-PATTERSON FOR
THAT PURPOSE. THUS,
WHEN MR. KETCHERSIDE REQUESTED THE PRESENCE OF MR. LYNN TOMPKINS,
FROM OKLAHOMA CITY,
MR. SHOELL FROM OGDEN, UTAH, AND MR. SCHUCHARDT FROM SAN ANTONIO, TO
NEGOTIATE CONCERNING
CERTAIN MID-TERM CHANGES, AND DEMANDED THAT RESPONDENT PAY TRAVEL AND
PER DIEM EXPENSES OF
THESE EMPLOYEES, THE ORDER ISSUING AUTHORITY WAS REQUIRED BY
DEPARTMENT OF DEFENSE REGULATIONS
TO FIRST MAKE A DETERMINATION THAT THE EXPENDITURE OF THESE FUNDS WAS
NECESSARY. WHEN
MR. BUXTON REQUESTED JUSTIFICATION, MR. KETCHERSIDE FLATLY REFUSED TO
PROVIDE ANY, CLAIMING AN
ABSOLUTE RIGHT TO NAME WHOMEVER HE WISHED TO NEGOTIATE ON BEHALF OF
THE UNION. HAVING NO
BASIS UPON WHICH TO DETERMINE THAT THE PROPOSED TRAVEL WAS NECESSARY,
THE ORDER ISSUING
AUTHORITY HAD NO CHOICE BUT TO DENY THE REQUEST.
"THE UNION, PERHAPS INTENTIONALLY, CONFUSES THE DENIAL OF TRAVEL AND
PER DIEM EXPENSES WITH
AN ATTEMPT BY MANAGEMENT TO CONTROL WHO THE UNION APPOINTS AS
NEGOTIATOR. AS HAS BEEN STATED
REPEATEDLY BY MANAGEMENT OFFICIALS, MANAGEMENT DOES NOT CARE WHO IS
APPOINTED AS THE UNION
NEGOTIATOR. MANAGEMENT STOOD READY TO NEGOTIATE WITH WHOMEVER THE
UNION BROUGHT TO THE
TABLE. THE ONLY QUESTION WAS WHETHER THE GOVERNMENT WOULD OR COULD
PAY THE TRAVEL AND PER
DIEM TO GET THAT EMPLOYEE TO THE TABLE.
(PARENTHETICALLY, RESPONDENT DID NOT DISPUTE OR CHALLENGE THE PAYMENT
OF SUCH EMPLOYEES BY THE ALLOWANCE OF OFFICIAL TIME).
. . . .
"THE ALTERNATIVE OF NOT APPLYING THE REQUIREMENTS OF THE JOINT TRAVEL
REGULATIONS TO UNION
NEGOTIATORS WHO ARE AGENCY EMPLOYEES IS CLEARLY NOT A VIABLE ONE. IT
WOULD GIVE TO THE UNION
A CARTE BLANCHE TO NAME ANY EMPLOYEE ANYWHERE AS ITS REPRESENTATIVE
IN NEGOTIATIONS. IT WOULD
PERMIT AN UNPRECEDENTED RAID ON THE AGENCY'S BUDGET AT THE WHIM OF
UNION OFFICIALS
. . . . " (RESPONDENT'S BRIEF, PP. 9-11).
BUT, OF COURSE, THIS IS NOT A MATTER OF FIRST IMPRESSION. THE
AUTHORITY, IN ITS INTERPRETATION AND GUIDANCE, CASE NOS. O-PS-3 AND
O-PS-6, 2 FLRA NO. 31 (1979), CONCLUDED, INTER ALIA, THAT EMPLOYEES WHO
ARE ON OFFICIAL TIME UNDER SEC. 31 OF THE STATUTE WHILE REPRESENTING AN
EXCLUSIVE REPRESENTATIVE IN NEGOTIATIONS, WHETHER NEGOTIATIONS OR
RENEGOTIATIONS OF A BASIC AGREEMENT, "ARE ENTITLED TO PAYMENTS FROM
AGENCIES FOR THEIR DUTY TIME AND TRAVEL AND PER DIEM EXPENSES." THAT
UNION NEGOTIATORS ARE ENTITLED TO TRAVEL AND PER DIEM EXPENSES FOR
MID-TERM NEGOTIATIONS WAS SPECIFICALLY AFFIRMED BY THE AUTHORITY IN
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION, DEPARTMENT OF
THE TREASURY, SAN FRANCISCO, CALIFORNIA , 4 FLRA NO. 40 (1980); SEE,
ALSO, FLORIDA NATIONAL GUARD, 5 FLRA NO. 49 (1981). IN ADDITION, THE
MATTER HAS BEEN CONSIDERED BY VARIOUS ADMINISTRATIVE LAW JUDGES, SEE, BY
WAY OF EXAMPLE, DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
WASHINGTON, D.C., AND ITS INDIANAPOLIS, INDIANA AND DALLAS, TEXAS
DISTRICTS, 5-CA-593 (JUDGE FRANCIS E. DOWD, MARCH 16, 1981); UNITED
STATES DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE AND UNITED
STATES DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, AUSTIN
DISTRICT, ET AL., CASE NOS. 6-CA-636, 6-CA-755, 6-CA-644, 6-CA-746
(JUDGE GARVIN LEE OLIVER, MARCH 16, 1981); INTERNAL REVENUE SERVICE,
CASE NOS. 3-CA-331, 3-CA-1231 (JUDGE ELI NASH, JR., MARCH 19, 1981);
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, JACKSONVILLE
DISTRICT, CASE NOS. 4-CA-498, 4-CA-561 (JUDGE BURTON S. STERNBURG, MARCH
23, 1981). AS AN ADMINISTRATIVE LAW JUDGE, I AM CONSTRAINED TO FOLLOW
THE AUTHORITY'S PRONOUNCEMENTS AND DECISIONS UNTIL SUCH TIME AS THEY ARE
OVERRULED BY HIGHER AUTHORITY. INDEED, RESPONDENT RECOGNIZES THAT ITS
ASSERTIONS ARE, IN REALITY, ADDRESSED TO THE AUTHORITY, AS IT STATES, IN
PART, "THE RESPONDENT URGES THE AUTHORITY TO RECONSIDER ITS
INTERPRETATION AND GUIDANCE FOUND IN O-PS-3 AND 6, AND THE IMPLICATIONS
IT POSTENDS." (RESPONDENT'S BRIEF, P. 12).
I FIND, THEREFORE, THAT RESPONDENT'S REFUSAL TO AUTHORIZE PAYMENT OF
TRAVEL AND PER DIEM EXPENSES FOR UNION'S DESIGNATED NEGOTIATORS SHOELL,
SCHUCHARDT (ACTUAL HOUR ACCOUNTING PROTOTYPE TEST) AND TOMPKINS (PACER
SPAN), CONTRARY TO THE AUTHORITY'S CONSTRUCTION AND INTERPRETATION OF
SECTION 31 OF THE STATUTE, THEREBY VIOLATED SECTIONS 16(A)(1) AND (8) OF
THE STATUTE. IN ORDER TO INSURE THAT THERE BE NO MISUNDERSTANDING, I
FURTHER, SPECIFICALLY, FIND THAT IMPOSITION OF A SHOWING OF NECESSITY AS
A CONDITION TO THE PAYMENT OF TRAVEL AND PER DIEM EXPENSES FOR UNION'S
DULY DESIGNATED NEGOTIATORS VIOLATED SECTION 31, AND 16(A)(1) AND (8) OF
THE STATUTE.
I DO NOT FIND, HOWEVER, THAT RESPONDENT REFUSED TO CONSULT OR
NEGOTIATE IN VIOLATION OF SECTION 16(A)(5) OF THE STATUTE. THE UNION
HAS THE RIGHT TO DESIGNATE ITS NEGOTIATOR, OR NEGOTIATORS, AND ITS
NEGOTIATORS ARE ENTITLED TO OFFICIAL TIME, TRAVEL AND PER DIEM EXPENSES.
RESPONDENT VIOLATED SECTION 16(A)(1) AND (8) BY ITS REFUSAL TO PAY THE
UNION'S DESIGNATED NEGOTIATORS TRAVEL AND PER DIEM EXPENSES AS REQUIRED
BY SECTION 31 AND THE AUTHORITY'S INTERPRETATION AND GUIDANCE, AND AN
APPROPRIATE ORDER WILL BE RECOMMENDED TO REMEDY THIS UNFAIR LABOR
PRACTICE; BUT RESPONDENT DID NOT REFUSE TO BARGAIN WITH THE UNION'S
DESIGNATED NEGOTIATORS, INDEED, DID NOT CHALLENGE OR DISPUTE THE
ENTITLEMENT OF THESE EMPLOYEES TO OFFICIAL TIME FOR NEGOTIATIONS. THE
RECORD SHOWS AMPLE NOTICE AND OPPORTUNITY TO BARGAIN WHICH THE UNION
FAILED AND REFUSED TO EXERCISE, ALBEIT BECAUSE RESPONDENT REFUSED TO PAY
TRAVEL AND PER DIEM EXPENSES. THE RECORD CONTAINS NO EVIDENCE, OR EVEN
ASSERTION, THAT THE UNION WAS UNABLE, OR EVEN WOULD HAVE BEEN
INCONVENIENCED, BY PROCEEDING WITH BARGAINING AND LITIGATING, IF
NECESSARY, RESPONDENT'S LIABILITY FOR THE COST OF TRAVEL AND PER DIEM.
THE ACTUAL HOUR ACCOUNTING PROTOTYPE TEST APPEARS TO HAVE BEEN A
MANAGEMENT RIGHT PURSUANT TO SECTION 6(A) OF THE STATUTE. NEVERTHELESS,
THE UNION WAS CERTAINLY ENTITLED TO NEGOTIATE AS TO IMPACT AND
IMPLEMENTATION, I.E., PURSUANT TO SECTION 6(B)(2) AND (3) TO NEGOTIATE
"PROCEDURES WHICH MANAGEMENT . . . WILL OBSERVE IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION" OR "APPROPRIATE ARRANGEMENTS FOR EMPLOYEES
ADVERSELY A AFFECTED . . . ." THAT THE UNION'S CONCERN WAS TO INSURE
THAT THE TEST BE DONE UNDER PROPER CONDITIONS, WHICH APPARENTLY MEANT
THAT IT WAS CONCERNED PRIMARILY WITH PROCEDURES UNDER SECTION 6(B)(2),
DOES NOT ALTER THE UNION'S RIGHT TO NEGOTIATE OR RESPONDENT'S OBLIGATION
TO NEGOTIATE CONCERNING SUCH PROCEDURES. RESPONDENT PROVIDED BRIEFINGS,
AT WRIGHT-PATTERSON AS WELL AS AT THE THREE BASES WHERE THE TEST WAS TO
BE CONDUCTED (HILL, KELLY, AND ROBINS), AND THE UNION WAS ASKED TO
PROVIDE, AND TENTATIVELY AGREED TO PROVIDE, PROPOSALS ABOUT WHICH IT
WISHED TO NEGOTIATE. THE UNION DID NOT SUBMIT ANY PROPOSALS. AS A
GENERAL PROPOSITION, AN AGENCY MAY NOT UNILATERALLY IMPOSE CONDITIONS AS
TO HOW BARGAINING WILL BE CONDUCTED, DEPARTMENT OF THE AIR FORCE, U.S.
AIR FORCE ACADEMY, CASE NO. 7-CA-459 (ALJ, NOVEMBER 7, 1980);
NEVERTHELESS THE OBLIGATION TO BARGAIN UNDER SECTION 6(B)(2) OR (3) IS
CONTINGENT ON THERE BEING SOMETHING TO BARGAIN ABOUT. FOR EXAMPLE, IF
IMPACT (ADVERSE EFFECT) IS ALLEGED, THERE MUST BE SOME ASSERTION OF
ADVERSE EFFECT, OFFICE OF PROGRAM OPERATIONS, FIELD OPERATIONS, SOCIAL
SECURITY ADMINISTRATION, SAN FRANCISCO REGION, CASE NOS. 9-CA-56,
9-CA-57 (ALJ, AUGUST 12, 1980). HERE, THE UNION HAD AGREED TO SUBMIT
PROPOSALS ABOUT WHICH IT WANTED TO NEGOTIATE BUT DID NOT DO SO AND THE
RECORD, FULLY ACCEPTING GENERAL COUNSEL'S ASSERTION THAT THE UNION WAS
CONCERNED THAT THE TESTING BE DONE UNDER PROPER CONDITIONS, IS DEVOID OF
EVIDENCE THAT THERE WAS ANY PROCEDURE OR ADVERSE EFFECT ABOUT WHICH THE
UNION WANTED TO BARGAIN TO SUPPORT A FINDING OF A REFUSAL TO BARGAIN.
AS TO PROJECT PACER SPAN, THE UNION DID SUBMIT EXTENSIVE COUNTER
PROPOSALS AND THE RECORD SHOWS MATTERS SUBJECT TO THE OBLIGATION TO
BARGAIN; BUT RESPONDENT ON APRIL 29, 1980, ADVISED THE UNION THAT,
ALTHOUGH IT WOULD NOT PAY MR. TOMPKINS' TRAVEL AND PER DIEM EXPENSES,
WHICH I HAVE FOUND VIOLATED SECTION 31 AND 16(A)(1) AND (8) OF THE
STATUTE, PROJECT PACER SPAN WOULD BE IMPLEMENTED MAY 12, 1980, UNLESS
THE UNION MET TO BARGAIN PRIOR TO MAY 12, 1980. THE UNION REFUSED TO
MEET BECAUSE RESPONDENT REFUSED TO PAY MR. TOMPKINS' TRAVEL AND PER DIEM
EXPENSES; BUT IT CANNOT BE SAID THAT RESPONDENT REFUSED TO BARGAIN.
NOT ONLY DOES THE RECORD FAIL TO SHOW THAT THE UNION COULD NOT,
WITHOUT INCONVENIENCE, HAVE PROCEED WITH BARGAINING AND LEFT PAYMENT OF
TRAVEL AND PER DIEM EXPENSES FOR LATER RESOLUTION; BUT THE RECORD
AFFIRMATIVELY SHOWS, BY THE ESTABLISHMENT OF THE OFFICE OF EXECUTIVE
DIRECTOR OF COUNCIL 214 AT WRIGHT-PATTERSON, A REASONABLE BELIEF BY
RESPONDENT THAT MR. KETCHERSIDE, AS EXECUTIVE DIRECTOR, WOULD,
GENERALLY, HANDLE MID-TERM NEGOTIATIONS. ON OTHER OCCASIONS, THE REASON
FOR DESIGNATING ANOTHER NEGOTIATOR WAS GIVEN AND RESPONDENT AGREED TO
PAY TRAVEL AND PER DIEM EXPENSES. WHILE I HAVE FOUND THAT RESPONDENT
WAS WRONG AND COULD NOT CONDITION THE PAYMENT OF TRAVEL AND PER DIEM OF
THE UNION'S DESIGNATED NEGOTIATORS ON A SHOWING OF NECESSITY AND/OR THAT
NEGOTIATIONS COULD NOT BE HANDLED BY PERSONNEL AT WRIGHT-PATTERSON, THE
CIRCUMSTANCES SURROUNDING THE OFFICE OF EXECUTIVE DIRECTOR AND ITS
FUNCTION FURTHER SHOWS THAT RESPONDENT'S ACTIONS WERE NOT IN DERROGATION
OF ITS OBLIGATION UNDER THE STATUTE TO BARGAIN WITH THE UNION.
ACCORDINGLY, THE ALLEGATIONS OF THE COMPLAINT AS TO SECTION 16(A)(5)
ARE DISMISSED. CF. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
SERVICE, JACKSONVILLE DISTRICT, CASE NOS. 4-CA-498, 4-CA-561, SUPRA;
BUT SEE, INTERNAL REVENUE SERVICE, CASE NOS. 3-CA-331, 3-CA-1231, SUPRA.
HAVING FOUND THAT RESPONDENT VIOLATED SECTION 16(A)(1) AND (8) OF THE
STATUTE, I RECOMMEND THAT THE AUTHORITY ISSUE THE FOLLOWING:
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF THE AIR FORCE, AIR FORCE
LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO PROVIDE TO LYNN TOMPKINS, WILLIAM SHOELL,
JOSEPH SCHUCHARDT, OR
ANY AGENCY EMPLOYEE, WHILE ENGAGED IN REPRESENTING THE AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 214, AFL-CIO, THE EMPLOYEE'S EXCLUSIVE
REPRESENTATIVE, DURING UNION-AGENCY
NEGOTIATIONS OF A COLLECTIVE BARGAINING AGREEMENT, INCLUDING MID-TERM
NEGOTIATIONS, OFFICIAL
TIME FOR SUCH PARTICIPATION INCLUDING NECESSARY TRAVEL TIME AS OCCURS
DURING THE EMPLOYEE'S
REGULAR WORK HOURS AND WHEN THE EMPLOYEE WOULD OTHERWISE BE IN A WORK
OR PAID LEAVE
STATUS. IN ADDITION, NECESSARY TRANSPORTATION AND PER DIEM EXPENSES
SHALL BE PAID BY THE
EMPLOYING ACTIVITY OR AGENCY AND PAYMENT OF SUCH TRANSPORTATION AND
PER DIEM EXPENSES SHALL
NOT BE CONDITIONED ON THE UNION SHOWING JUSTIFICATION FOR THE
DESIGNATION OF ANY NEGOTIATOR.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERRING WITH, RESTRAINING, OR
COERCING 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) POST AT ITS VARIOUS INSTALLATIONS OF THE AIR FORCE LOGISTICS
COMMAND WHEREIN UNIT
EMPLOYEES ARE LOCATED, I.E., AT HILL AIR FORCE BASE, OGDEN, UTAH;
KELLY AIR FORCE BASE, SAN
ANTONIO, TEXAS; MCCELLAN AIR FORCE BASE, SACRAMENTO, CALIFORNIA;
NEWARK AIR FORCE STATION,
NEWARK, OHIO; ROBINS AIR FORCE BASE, WARNER ROBINS, GEORGIA; TINKER
AIR FORCE BASE, OKLAHOMA
CITY, OKLAHOMA; WRIGHT-PATTERSON AIR FORCE BASE, DAYTON, OHIO;
DETACHMENT 21, AFCMC, AFPRO,
BOEING, WICHITA, KANSAS; AND CATALOGUING AND STANDARDIZATION OFFICE,
BATTLE CREEK, MICHIGAN,
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX". COPIES OF SAID
NOTICE, TO BE FURNISHED BY
THE REGIONAL DIRECTOR FOR REGION 5, AFTER BEING SIGNED BY AN
AUTHORIZED REPRESENTATIVE, SHALL
BE POSTED BY IT IMMEDIATELY UPON RECEIPT AND BE MAINTAINED BY IT FOR
60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES
TO EMPLOYEES ARE
CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT
SAID NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY OTHER MATERIAL.
(B) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE
OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: MAY 27, 1981
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT FAIL OR REFUSE TO PROVIDE TO LYNN TOMPKINS, WILLIAM
SHOELL, JOSEPH SCHUCHARDT, OR ANY AGENCY EMPLOYEE, WHILE ENGAGED IN
REPRESENTING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL
214, AFL-CIO, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, DURING
UNION-AGENCY NEGOTIATIONS OF A COLLECTIVE BARGAINING AGREEMENT,
INCLUDING MID-TERM NEGOTIATIONS, OFFICIAL TIME FOR SUCH PARTICIPATION
INCLUDING NECESSARY TRAVEL TIME AS OCCURS DURING THE EMPLOYEE'S REGULAR
WORK HOURS AND WHEN THE EMPLOYEE WOULD OTHERWISE BE IN A WORK OR PAID
LEAVE STATUS. IN ADDITION, NECESSARY TRANSPORTATION AND PER DIEM
EXPENSES SHALL BE PAID BY THE EMPLOYING ACTIVITY OR AGENCY.
WE WILL NOT CONDITION THE PAYMENT OF TRANSPORTATION AND PER DIEM
EXPENSES ON THE UNION SHOWING JUSTIFICATION FOR THE DESIGNATION OF ANY
UNION NEGOTIATOR.
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
STATUTE.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, REGION 5, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: SUITE A-1359, 175 WEST JACKSON BOULEVARD, CHICAGO, ILLINOIS
60604, AND WHOSE TELEPHONE NUMBER IS: (312) 866-3468.
--------------- FOOTNOTES$ ---------------
/1/ BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION,
DEPARTMENT OF THE TREASURY, SAN FRANCISCO, CALIFORNIA, 4 FLRA NO. 40
(1980), ENFORCED SUB NOM. BUREAU OF ALCOHOL, TOBACCO AND FIREARMS V.
FEDERAL LABOR RELATIONS AUTHORITY, 672 F.2D 732 (9TH CIR. 1982). BUT
SEE DIVISION OF MILITARY AND NAVAL AFFAIRS, STATE OF NEW YORK (ALBANY,
NEW YORK), 7 FLRA NO. 69 (1981), REVERSED SUB NOM. DIVISION OF MILITARY
AND NAVAL AFFAIRS V. FEDERAL LABOR RELATIONS AUTHORITY, 683 F.2D 45 (2D
CIR. 1982) AND U.S. DEPARTMENT OF AGRICULTURE, SCIENCE AND EDUCATION
ADMINISTRATION, AGRICULTURAL RESEARCH, NORTH CENTRAL REGION,
DAKOTAS-ALASKA AREA, 6 FLRA NO. 45 (1981), REVERSED SUB NOM. UNITED
STATES DEPARTMENT OF AGRICULTURE V. FEDERAL LABOR RELATIONS AUTHORITY,
NO. 81-1948 (8TH CIR. AUGUST 9, 1982).
AS TO THE JUDGE'S DISMISSAL OF THE ALLEGATION THAT RESPONDENT'S
REFUSAL TO AUTHORIZE PER DIEM AND TRAVEL EXPENSES CONSTITUTED A SEPARATE
VIOLATION OF SECTION 7116(A)(5) OF THE STATUTE, SEE ALSO DEPARTMENT OF
THE TREASURY, INTERNAL REVENUE SERVICE, JACKSONVILLE AND ATLANTA
DISTRICTS, 9 FLRA NO. 40 (1982).
/2/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 4 FLRA NO. 39
(1980). THIS IS NOT TO SAY HOWEVER THAT AN AGENCY IS PRECLUDED FROM
SEEKING TO MITIGATE THROUGH NEGOTIATIONS TRAVEL AND PER DIEM EXPENSES.
SEE DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGION IV, ATLANTA,
GEORGIA, 9 FLRA NO. 150 (1982), N. 2.
/3/ FOR CONVENIENCE OF REFERENCE, SECTIONS OF THE STATUTE ARE, ALSO,
REFERRED TO HEREINAFTER WITHOUT INCLUSION TO THE INITIAL "71", E.G.,
SECTION 7116(A)(1) WILL BE REFERRED TO, SIMPLY, AS "16(A)(1)".
/4/ GENERAL COUNSEL, ON NOVEMBER 18, 1980, FILED A MOTION TO CORRECT
TRANSCRIPT, TO WHICH NO OPPOSITION WAS FILED, AND, FINDING THE MOTION
MERITORIOUS, IT IS GRANTED AND THE TRANSCRIPT IS HEREBY CORRECTED AS
FOLLOWS:
A) GENERAL COUNSEL MOVED TO SUBSTITUTE THE WORD "SUBSTANTIVE" FOR THE
WORD
"SUBSTANTIAL" WHERE IT APPEARS FROM P. 76, 1. 14, THROUGH AND
INCLUDING P. 78, 1. 12. THE
WORD "SUBSTANTIVE" IS, THEREFORE, INSERTED AT P. 76 LINES 14, 16, 17,
20, 24, 25; P. 77, LINES
5 AND 20; P. 78, LINES 2, 10, AND 12.
B) GENERAL COUNSEL MOVED TO SUBSTITUTE THE WORD "GRADES" FOR THE WORD
"RATES" WHERE IT
APPEARS FROM P. 79, 1. 12 TO P. 80, 1. 15. ACCORDINGLY THE WORD
"GRADES" IS INSERTED AT
P. 79, LINE 12 (TWICE) P. 80, LINE 15 (TWICE).
/5/ THE FACTS ARE NOT DISPUTED AND I HAVE ADOPTED, IN SUBSTANCE,
RESPONDENT'S STATEMENT OF FACTS.