[ v13 p135 ]
The decision of the Authority follows:
13 FLRA No. 33 DEPARTMENT OF THE AIR FORCE 915th TACTICAL FIGHTER GROUP HOMESTEAD AIR FORCE BASE, FLORIDA /1/ Respondent and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1167 Charging Party Case No. 4-CA-596 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled 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. 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 hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, /2/ conclusions and Recommended Order. /3/ ORDER Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Authority hereby orders that the Department of the Air Force, 915th Tactical Fighter Group, Homestead Air Force Base, Florida, shall: 1. Cease and desist from: (a) Designating the representatives of the National Federation of Federal Employees, Local 1167, who are to attend meetings of the Working Committee, or any other committee established for the purpose of discussing terms and conditions of employment of employees in the bargaining unit represented by the National Federation of Federal Employees, Local 1167. (b) 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 Statute: (a) Notify the National Federation of Federal Employees, Local 1167, that the employer recognizes the right of the exclusive representative to designate its own representatives to the Working Committee or any other committee established by the employer for the purpose of meeting with management to discuss terms and conditions of employment of employees in the bargaining unit represented by the National Federation of Federal Employees, Local 1167. (b) Post at the Homestead Air Force Base, Florida facility 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 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 material. (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IV, 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. Issued, Washington, D.C., September 28, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, 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 designate the representatives of the National Federation of Federal Employees, Local 1167, who are to attend meetings of the Working Committee, or any other committee established for the purpose of discussing terms and conditions of employment of employees in the bargaining unit represented by the National Federation of Federal Employees, Local 1167. 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 Federal Service Labor-Management Relations Statute. WE WILL notify the National Federation of Federal Employees, Local 1167, that we recognize the right of the exclusive representative to designate its own representatives to the Working Committee or any other committee established for the purpose of meeting with management to discuss terms and conditions of employment of employees in the bargaining unit represented by the National Federation of Federal Employees, Local 1167. (Activity) Dated: . . . By: (Signature) (Title) 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 for the Federal Labor Relations Authority, Region IV, whose address is: 1776 Peachtree Street, NW., Suite 501, North Wing, Atlanta, Ga. 30309 and whose telephone number is: (404) 881-2324. -------------------- ALJ$ DECISION FOLLOWS -------------------- DEPARTMENT OF THE AIR FORCE, 915th TACTICAL FIGHTER GROUP, HOMESTEAD AIR FORCE BASE, FLORIDA Respondent /4/ and Case No. 4-CA-596 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1167 Charging Party James A. Harper, Esq. For the Respondent Bob R. Brown For the Charging Party Barbara S. Liggett, Esq. and Brenda S. Green, Esq. For the General Counsel Before: FRANCIS E. DOWD Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5 U.S.C. 7101, et seq. It was instituted by the Acting Regional Director of the Fourth Region of the Federal Labor Relations Authority by the issuance of a Complaint and Notice of Hearing dated December 31, 1980. The Complaint was issued following the investigation of an unfair labor practice charge filed on September 16, 1980 and an amended charge filed on December 29, 1980 by National Federation of Federal Employees, Local 1167, herein referred to as the Union, NFFE or Charging Party. The Complaint alleges that Respondent, through its agent, Colonel Ralph D. Erwin, Commander of the 915th Tactical Fighter Group, violated Sections 7116(a)(1), (3) and (5) of the Statute by the following conduct: 7. (a) On or about April 14, 1980, Respondent, by Erwin, established a committee composed of representatives of various components of Respondent and the Union which committee had as an object the discussion of terms and conditions of employment at Respondent. (b) On or about April 14, 1980, Respondent, by Erwin, designated and selected representatives of the Union to attend and participate in meetings and affairs of the committee. (c) At no time was the Union given the opportunity to designate and select representatives or participate in the designation and selection of representatives of its own choosing to attend and participate in the meetings and affairs of the committee. (d) At no time did the Union acquiesce in the acts and conduct of Respondent set forth in paragraph 7(b), above. 8. Commencing on or about April 28, 1980 and continuing until on or about September 2, 1980, Respondent, By Erwin, conducted meetings of the committee described above in paragraph 7. In its Answer, Respondent denies that Colonel Erwin is an agent of Respondent and denies any violation of the Statute. A hearing was held in Homestead, Florida at which the parties were represented by counsel and afforded full opportunity to adduce evidence and call, examine, and cross-examine witnesses and argue orally. Briefs filed by Respondent and the General Counsel have been duly considered. /5/ Upon consideration of the entire record /6/ in this case, including my evaluation of the testimony and evidence presented at the hearing, and from my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommended order. Findings of Fact and Conclusions of Law A. Identity of the Respondent and its Agents 1. General Counsel's Exhibit No. 2 is a Labor-Management Cooperation Agreement dated October 31, 1975 between Homestead Air Force Base, Florida (the Employer) and National Federation of Federal Employees, Local No. 1167. Article I of the Agreement states as follows: This agreement is executed pursuant to the exclusive recognition granted Local 1167, an affiliate of National Federation of Federal Employees by the Base Commander, Homestead Air Force Base, Florida. The Agreement was signed on behalf of the Employer by Colonel T. M. Hamilton in his capacity as Base Commander, although he also happened to be Commander of the 31st Combat Support Group (TAC). Throughout the agreement references are made to the Employer and to the Base Commander. There are no references to the 31st Combat Support Group. Article 2, Section 1 states that the effective date of the agreement shall be the date of approval by Headquarters, TAC. The last page of the agreement indicates approval by David V. Barry, Director of Civilian Personnel, Tactical Air Command. From the foregoing I conclude that the Employer should be United States Air Force Base, Tactical Air Command, Homestead Air Force Base, Florida. By agreement of the parties at the hearing, Tactical Air Command and Department of Defense were deleted from the caption. 2. After the hearing, by motion of the General Counsel (in which Respondent concurs), it was requested that the 31st Combat Support Group (herein the 31st) be deleted. The Charging Party opposes the motion. The evidence does not establish the 31st Combat Support Group as the employing entity. As noted in Paragraph 6 of the Complaint, the unit consists of all employees at Homestead Air Force Base regardless of the military unit to which they are assigned so long as they are "Air Force civilian employees serviced by the Central Civilian Personnel Office of Homestead Air Force Base, Florida." Since the 31st Combat Support Group is not the Employer, the only reason to name them as a Respondent would be if the evidence warranted their inclusion by reason of activities and conduct of supervisors, management officials or agents of the 31st. However, the evidence does not establish (and this is apparently the basis of the General Counsel's motion) /7/ that any representative of the 31st were involved in any of the unfair labor practices alleged in the Complaint. Rather, the sole management official named in the Complaint was Colonel Ralph Erwin, Commander of the 915th Tactical Fighter Group (herein the 915th). Since the evidence does not establish that Colonel Erwin was acting on behalf of the 31st, I find he was not an agent of the 31st and, further, I grant the motion to delete the 31st as Respondent. 3. Finally, with respect to the 915th Tactical Fighter Group, it is not clear to me why it is being named in the Complaint, other than the fact that all parties are in agreement that it should be so named. Clearly, the 915th is not the Employer herein. Rather it is merely a military organization at Homestead whose employees constitute a segment of the contractual bargaining unit. Since Colonel Ralph Erwin is commander of the 915th, this appears to be the reason for its being named. I find, however, with respect to the status of Colonel Erwin, that in addition to being a supervisor and management official of the 915th, he is also a supervisor, management official, and an agent of United States Air Force, Homestead Air Force Base, Florida, the Respondent herein. I make this finding based (1) on my view that all supervisors and management officials at Homestead Air Force Base necessarily are - by virtue of their position - agents of Respondent's and (2) the fact that the Central Civilian Personnel Office made Erwin its agent when CPO chief Forrest Williams instructed him to meet with the Union President to discuss the Union's right to be involved with Erwin's "working committee" (Tr. 114). B. Formation of the Working Committee 4. During late March or early April of 1980, Colonel Ralph Erwin asked Union President, Arthur Schaffer, to come to his office for a meeting. As noted above, this meeting resulted from a call Erwin had received from Forrest Williams, the Chief of Civilian Personnel. Williams told Erwin that the Union was upset by reports that Erwin was forming a committee and that it was necessary that the Union be involved. Erwin testified that he had told his managers about the concept a couple of days earlier and that somehow the information about the committee had gotten to the Union "before we were ready to talk to them about it." Nonetheless, Erwin asked Williams to send Schaffer to his office that same day so that Erwin could "brief him, and bring him up to status on it." 5. At this meeting, Erwin explained to Schaffer that the purpose of the working committee was to identify problems within the 915th, and to boost morale and productivity within the organization. Schaffer endorsed the concept of having working committees and naming union stewards to the committee. Schaffer opposed a few of the names proposed by Erwin, including James Bruno and Kim Firmani. There is a dispute concerning precisely what was decided at the meeting. Schaffer's version, which I credit, is that Erwin told him the working committee was just a proposal, and that if he did in fact decide to establish the committee, Erwin would coordinate the meetings with Schaffer so that the members of the committee could be selected. /5/ Erwin denies telling Schaffer that he would get back in touch with Schaffer concerning the meetings, but admits telling Schaffer that he would "keep him posted." The significance of the foregoing is that Schaffer left the meeting with the expectation of being consulted further before Col. Erwin implemented his proposal. But even if Schaffer knew, as contended by Respondent, that the working committees definitely were going to be established, he clearly expected to be at least notified of the meetings as well as to be consulted as to the Union representatives on the committee. 6. Despite Erwin's promise to coordinate the meetings with Schaffer, he instead met with other representatives of the Union in April when Erwin informed Union Steward John Breslin and Chief Steward George Vitetta, that he was establishing a working committee and the stewards in the 915th would attend. Breslin testified that he did not object to Erwin's proposal because he assumed that it had all been taken care of with the Union's Executive Board. Presumably, Vitetta did not object because it was his "impression" that Erwin and Schaffer had reached agreement on the committee meetings (see footnote 8 supra). C. The First Meeting (April 28) 7. Thereafter, Breslin received a memorandum from Erwin, dated April 14, 1980, addressed to the "915 TGF Union Stewards" which announced a meeting for April 28, 1980, in Erwin's office and explained that Erwin was "attempting to establish a working committee to discuss the 'grass roots' problems within the 915th." Copies of the memorandum, as shown by the distribution list on the memorandum, went to three Union stewards-- Breslin, Philip Paynter, and Warren Van Amringe; as well as to Sergeant Kim Firmani who had been selected by Erwin to represent active duty military personnel. Schaffer was not sent a copy of the memorandum. /9/ 8. Breslin attended the meeting on April 28, 1980 and recalled that initially the discussion at the meeting concerned the purpose of the committee. Erwin said that morale was down and that the participants should bring information about problem areas within the 915th so that the problems could be resolved. One of the participants noted that not all of the stewards in the 915th had been included in the meeting. Erwin said that he would make sure that all the stewards were included in the next meeting. D. The Union's First Protest 9. A day or two after this first committee meeting, Breslin told Schaffer about the meeting and showed him the April 14 memorandum. Schaffer told Breslin that the meeting had not been coordinated with the Union and that Firmani really had no business being in a meeting to discuss civilian affairs. 10. After Breslin learned that Schaffer had not been contacted about the April 28 committee meeting, Breslin and Vitetta met with Erwin and requested that he coordinate the meetings with the Union. Erwin agreed to see that this was done. Vitetta testified that they explained that a copy of the meeting announcements should be sent to Schaffer, and he thought that Erwin agreed. E. The Second Meeting (May 19) 11. On May 12, 1980, Erwin sent out a memorandum announcing a second meeting of the working committee, and again did not send a copy of the memorandum to Schaffer. This second memorandum announced a meeting for May 19, 1980, and was sent to the participants of the April 28 meeting, plus two additional Union stewards, Antonio Diaz and Edward Thompson; and also to Vitetta. 12. Breslin testified that he attended the meeting on May 19, 1980. He recalled that the discussion at this meeting included a problem with the repair or the parking lot at Building 714, a proposal from Erwin for a fishing trip for the whole squad, and a suggestion from one of the stewards that the civilian employees perform their military reserve duties during the week, rather than on weekends. The last subject caught Breslin's attention because he knew that the Union was opposed to such a proposal. Breslin also noted that the group discussed the problem that stewards on the night shift had in attending meetings of the working committee, since it was held in the morning. Erwin agreed to change the time of the committee meetings to the afternoon so that stewards from both the day and night shifts could attend. /10/ F. The Union's Second Protest 13. On June 3, 1980, the Union Executive Board had its regular monthly meeting. As a result of lengthy discussion on the working committee the Executive Board decided to send a letter (G.C. Exh. No. 6) to Erwin. That letter, dated and delivered June 23, 1980, pointed out to Erwin that he had not properly notified the Union with respect to the working committee. The letter emphasized that it was the right of the Union to appoint its own representatives to the working committee, and requested that if Erwin intended to continue the meetings, to advise the Union and it would appoint representatives to the committee. The letter also referred to Sections 7116(a)(1) and (8) of the Statute but asserted that, in the interest of fostering better labor-management relations, no unfair labor practice charge would be filed. G. The Third Meeting (June 23) 14. On the afternoon of June 23, the same day Schaffer delivered the Union's protest, he received a memorandum announcing a meeting of the working committee on June 23 at 2:30 p.m. The memo was dated June 18 and presumably prepared prior to the Union's protest. The memo showed distribution of a copy to NFFE Local 1167. 15. Schaffer was not the only one to receive a late notice of that meeting. Steward Edward Thompson testified that he learned of the meeting when he arrived at work on the afternoon of June 23, 1980, to begin his regular night shift. Thompson's supervisor told him that he had received a telephone call from the Deputy Commander of Maintenance, and that Thompson was supposed to be at a meeting. When Thompson arrived for the meeting, it was already in progress. The memorandum announcing this meeting was received by Thompson after the meeting. 16. Thompson recalled when testifying that the civil service awards program was discussed as a possible way of improving morale. There was a suggestion that supervisors initiate awards to some of the workers who had been doing a good job. Changes in the work shifts were also discussed at the meeting. Thompson testified that changes to the lunch period were discussed, so that the heavy workload on the flight line during that part of the day could be better covered. H. Colonel Erwin's Reaction to the Union's Protest 17. Sometime after the June 23 letter from Schaffer was received by Erwin, Erwin had a conversation with Breslin concerning the letter. Erwin testified that he asked Breslin what was the intent of the June 23, 1980 letter from the Union. Breslin, who had not been present at the Executive Board meeting where the letter was discussed, told Erwin that he did not know. I note that Erwin did not attempt to contact and deal with Union President Schaffer. 18. Rather than respond to the request, stated in the letter, that Erwin contact the Union office if he wished to continue with the committee meetings so that the Union could appoint representatives, Erwin testified that he did not feel that he had to respond because he "didn't feel like it reflected the Union." (Tr. 132) Erwin testified that he felt "that it was probably a personal thing." (Tr. 132) Although Erwin admitted knowing that Schaffer was the President of the Union, Erwin testified that he was of the opinion that "the Union is not necessarily reflected by the Union personnel and I think that quite often it becomes a matter of a personality which stipulates Union policy rather than the Union itself." 19. In addition to the foregoing, Erwin testified as follows in response to questioning by Counsel for the General Counsel: Q. I see. So, did you think that by choosing a particular Union officer to deal with you could find someone who more nearly reflected the views of the Union? A. No, ma'am, that is not true at all. I am saying that it is my intention to find the reflection of the Union and try to establish. And then, if that was the case, then go from there. Q. You are aware that Mr. Schaffer is the president? A. Oh, yes, ma'am. Q. All right. A. But I am also aware of the fact that there is a Union involved, membership. And as Mr. Vitetta pointed out, he was not in concert with the idea and he was the chief steward. 20. The testimony of Colonel Erwin (Tr. 132-133) is most revealing with respect to his attitude towards the Union as an institution and the Union members themselves. He quite clearly seemed to be of the opinion that the views of the Union as expressed by its leadership (in this case Schaffer), did not necessarily coincide with the views of other Union officers (like Vitetta) or the membership as a whole. His objective, by his own testimony, was "to find the reflection of the Union." Based upon my review of the record, particularly the testimony of Erwin, I can only conclude that Erwin deliberately chose to deal with those sources whom he felt would best "reflect" the Union. Thus, he met with and dealt with Union officials other than President Schaffer, and with Union stewards at the working committee meetings. In so doing, he deliberately bypassed the Union. I. The Third and Fourth Meetings (July 31 and September 2) 21. Even after receipt of the Union's protest, Erwin continued to schedule meetings. One memorandum, dated July 31, 1980, announced a meeting for August 6, 1980. Thompson testified that he attended this meeting and recalled some of the topics discussed. He recalled a discussion of work shift changes, brought up by Erwin. There was a proposal that one group begin work an hour earlier so that they could be ready upon the arrival of the rest of the employees. There was also a discussion concerning the length of overlap between the day and night shifts and the consequent loss of productivity. Other topics of discussion included employee complaints about unequal distribution of work on the night shift, and safety hazards in the parking lot due to poor lighting, a large hole, and no painted parking spaces. Thompson also recalled a brief discussion about allowing the reservists to use the PX on weekends when they were on the base. 22. Thompson testified that although he knew of the Union's unhappiness with the fact that it had not been allowed to appoint its own representatives to the meetings, he attended the meetings anyway, because he received a letter from Erwin asking him to attend and because his supervisor told him to attend. 23. The final memorandum announcing a meeting of the working committee was dated August 29, 1980, and set the meeting date as September 2, 1980. Erwin testified that no business was discussed at that meeting because only one steward showed up, and after a period of waiting, the meeting broke up. J. The Union's Decision to File a Charge 24. Breslin testified that he attended his first Executive Board meeting in July of 1980. At that meeting there was a discussion of the letter which had been sent to Erwin, and that there had been no response to the letter. It was noted that the meetings were still going on. At the August meeting of the Union Executive Board, the Board unanimously voted to file an unfair labor practice charge because Erwin had not responded to the Union's letter and Erwin was continuing to hold meetings of the committee with representatives not chosen by the Union. Schaffer testified that the Board voted to file a charge because it had been unsuccessful in resolving the problem. Discussion The factual allegations contained in paragraphs 7 and 8 of the Complaint have been proven by the General Counsel. Thus, I find that Respondent, through its agent Col. Erwin, established a committee on April 14, 1980 composed of representatives of various components of Respondent; that these representatives, including Union stewards, were designated and selected to attend and participate by Respondent; that the Union was not given the opportunity to select and designate its own representatives and did not acquiesce in Respondent's acts and conduct; and that Respondent scheduled and participated in meetings at which conditions of employment, within the meaning of Section 7103(a)(14) of the Statute, were discussed with employees. Of the foregoing findings and conclusions, the only issue is whether the Union acquiesced in the selection of stewards as its representatives on the committee. While it is true that the Union did not oppose the concept of establishing the committee, I have concluded that the original meeting between Erwin and Schaffer did not result in an agreement between them with respect to the composition of the committee and that Schaffer expected to be consulted further so that the Union could select and designate its representatives. But, even if there were a misunderstanding between Erwin and Schaffer as of early April, this does not excuse Erwin's failure to notify the Union of the first two meetings so that Schaffer could attend the meetings or give instructions to his designee. As it was, the stewards attended because they were directed to by the memoranda scheduling the meetings. Certainly, I cannot accept the suggestion that the stewards were merely invitees and that their acceptance was voluntary. The tone of the memoranda and the testimony of Thompson makes this clear to me. Nor does the evidence establish that the stewards were ever instructed by the Union to attend the meetings. In any event, when Schaffer did learn about the meetings, he promptly notified Erwin and protested. By so doing, he gave Erwin an opportunity to clarify any misunderstanding which may have existed up until this point in time. But Erwin chose not to contact the President of the Union and continued to schedule meetings, except that now a copy of the announcements were sent to the Union. There seems to be no question that Erwin preferred to deal with Union representatives other than Schaffer. While this may have been due to a personality conflict between them, I am unable to overlook Erwin's own testimony where he stated that Schaffer's views did not accurately reflect the views of the Union membership. Simply stated, it is not the business of Erwin to make these kind of judgments. Rather, the role of management is to deal with the employees' elected representative, the Union President. Thus, from Erwin's testimony, I have no choice but to conclude that he deliberately bypassed Union President Schaffer. In contrast to his treatment of the Union President, Erwin's conduct toward the Union officials of whom he approved was quite cordial. Vitetta, who admitted to a good rapport with Erwin, discussed the committee with Erwin on at least two occasions, and received copies of meeting announcements. And Breslin, who informed Erwin that he was no longer a Union steward in the 915th, continued to receive meeting announcements and Erwin's assurance that he was welcome to attend the committee meetings. Significantly, however, Schaffer, the Union's principal officer and an employee of the 915th, received no personal invitations from Erwin to attend meetings of the committee. Indeed, Erwin had no contact with Schaffer after their meeting in early April arranged by the Civilian Personnel Office. Respondent asserts in its brief that it had no obligation to consult with the Union President before "talking to" the stewards. But, this case does not involve talking to union stewards about the application of the contract (Article III, Section 3.4(c)), or about setting grievances expeditiously at the lowest level (Article VII) - as argued in Respondent's brief. Rather, this case involves the establishment by Erwin of a new committee, unlike any existing entity within the 915th. Accordingly, the steward's attendance at such meetings would not, in my opinion, be considered part of his ordinary duties as a steward. Therefore, as contended by counsel for the General Counsel in her brief, "it is axiomatic that Union stewards have only the duties and responsibilities which a union assigns them." Here, Article III, Section 3.4(a) of the parties' collective bargaining agreement provides, in part, that "(t)he duties and responsibilities assigned by NFFE, Local 1167 to its Stewards shall be consistent with applicable Federal laws, Executive Orders, rules and regulations, and the provisions of this Agreement." Respondent's reliance on the contract to argue that it was required to deal with stewards and was under no obligation to consult the Union President is misplaced. Clearly, the Union had a right to designate its own representatives to serve on the working committee. What Respondent did here was to usurp the functions of the Union President and determine which Union stewards and officers would be informed of the meetings and invited to attend the meetings. In effect, then, Erwin designated the Union's representatives just as he designated Sgt. Kim Firmani to represent another group of employees - active duty military personnel. An additional defense offered by Respondent is that the Union had actual notice because the stewards and Union Vice President had notice of the meetings. This defense is rejected. In the first place, the gravamen of the complaint is not lack of notice of Respondent's decision to conduct meetings without notifying the Union; rather, it is Respondent's failure to permit the Union to select its own representatives to attend the committee meetings as official Union representatives. To the extent Respondent is attempting to argue that the Union had actual notice and may be deemed to have acquiesced, this defense also is rejected. The stewards attending the first few meetings were unaware that Schaffer had not designated them and was not being informed of the meetings. In the circumstances of this case, it was Schaffer to whom notice should have been given. When Schaffer did learn of the meetings, he promptly protested. When his protest was ignored, he protested again. Thus there was no acquiescence by the Union. As I view the facts of this case, Respondent acted unlawfully when Erwin designated the stewards who would receive notice and attend the meetings. If Erwin regarded the stewards as representatives of the Union, it was unlawful not to permit the Union to designate its own representatives. On the other hand, if Erwin regarded the stewards as representing groups of employees in their respective shops and departments, this was also unlawful because it means he was bypassing the exclusive representative and dealing directly with "employees" concerning their conditions of employment. Section 7116(a)(5) of the Statute makes it an unfair labor practice for an agency "to refuse to consult or negotiate in good faith with a labor organization," including a refusal to deal with the particular individuals selected by the labor organization for such consultation or negotiation. Counsel for the General Counsel submits, and I agree, that an agency commits a violation of Section 7116(a)(5) when it designates the representatives of a labor organization with whom it will deal, rather than allowing the labor organization the right to designate its own representatives. /11/ In addition, an agency violates Section 7116(a)(1) of the Statute, in that the agency's action interferes with the right of employees to form, join, or assist a labor organization, and "to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees" as set forth in Section 7102 of the Statute. The Authority, in a landmark decision, /12/ has stated as follows: Section 7103(12) of the Statute defines collective bargaining in terms of the "mutual obligation" of the parties to consult and bargain in good faith. The goal of balanced, mutual responsibility on the part of the parties is also stressed in the legislative history of the Statute. Thus, the collective bargaining relationship envisaged by the Statute requires that each party have the ability to function as an equal partner within the relationship. It follows that each party should therefore deal with the other with the directness and dignity appropriate to partners on an equal footing. (Footnotes omitted). Respondent herein did not deal with the Union on an equal footing. What Col. Erwin did here was to ignore the Union President and deliberately avoid dealing with him. By so doing, Respondent must be held to have bypassed the Union itself. In my view, this bypassing of the Union was in derogation of the Union's rights as the exclusive representative and such conduct tended to undermine its status as the employees' exclusive representative. Accordingly, I conclude that Respondent, by the acts and conduct of its agent Colonel Ralph Erwin, violated Section 7116(a)(1) and (5) of the Statute. /13/ The General Counsel alleges that the same conduct described above also constitutes a violation of Section 7116(a)(3). That section of the Statute makes it an unfair labor practice for an agency "to sponsor, control, or otherwise assist any labor organization, other than to furnish, upon request, customary and routine services and facilities . . . ." To prove a violation of Section 7116(a)(3), it would first be necessary to demonstrate that the committee was a labor organization within the meaning of Section 7103(a). That would require deciding whether the committee was an "entity" as discussed previously, or merely a "concept" used to describe a series of meetings. It would also require deciding whether the Respondent was dealing with "employees" or with Union representatives (albeit designated by Erwin). The theory of General Counsel's case with respect to Section 7116(a)(5) is that the Respondent designated "Union representatives" to the committee and thus usurped the Union's prerogative in making such appointments. Union President Schaffer testified, however, that he did not object to the formation of the committee and its purpose, but he did object to its composition and his right to designate his own representatives. Clearly, Schaffer did not regard the committee as a labor organization, else why would he insist on making appointments to a rival union. Nor does it appear that what started out as a committee ever ripened into a labor organization as time passed. On the contrary, after the Union voted in August to file a charge, only one steward showed up at the next committee meeting on September 2. As a result, the meeting broke up with no business transacted. No further meetings were scheduled. So, without the participation of NFFE stewards, it would appear that no purpose was to be served in scheduling more meetings. In my opinion, the foregoing facts do not establish that the committee was a labor organization or that it was controlled by Respondent. Accordingly, I recommend dismissal of the Section 7116(a)(3) allegation in the Complaint. Having found and concluded that Respondent violated Section 7116(a)(1) and (5) of the Statute, I recommend that the Authority issue the following order: ORDER Pursuant to 5 U.S.C. 7118(a)(7) and Section 2423.26 of the Final Rules and Regulations of the Federal Labor Relations Authority, U.S. Fed. Reg. 3842, 3510 (1980), it is hereby ordered that United States Air Force, 915th Tactical Fighter Group, Homestead Air Force Base, Florida, shall: 1. Cease and desist from: (a) Designating the representatives of the National Federation of Federal Employees, Local 1167, who are to attend meetings of the Working Committee, or any other committee established for the purpose of discussing terms and conditions of employment of employees in a bargaining unit represented by the National Federation of Federal Employees, Local 1167. (b) In any like or related manner, interfering with, restraining, or coercing our 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 purpose and policies of the Statute: (a) Notify the National Federation of Federal Employees, Local 1167, that the employer recognizes the right of the exclusive representative to designate its own representatives to the Working Committee or any other committee established by the employer for the purpose of meeting with management to discuss terms and conditions of employment of employees in a bargaining unit represented by National Federation of Federal Employees, Local 1167. (b) Post at the Homestead Air Force Base, Florida facility copies of the attached Notice marked "Appendix" on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Base Commander 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. The Base Commander shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director of Region IV, 1776 Peachtree St., NW., Suite 501, North Wing, Atlanta, Georgia, 30309 in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. FRANCIS E. DOWD Administrative Law Judge Dated: May 28, 1982 Washington, D.C. APPENDIX 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 designate the representatives of the National Federation of Federal Employees, Local 1167, who are to attend meetings of the Working Committee, or any other committee established for the purpose of discussing terms and conditions of employment of employees in a bargaining unit represented by the National Federation of Federal Employees, Local 1167. 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 Federal Service Labor-Management Relations Statute. WE WILL notify the National Federation of Federal Employees, Local 1167, that we recognize the right of the exclusive representative to designate its own representatives to the Working Committee or any other committee established for the purpose of meeting with management to discuss terms and conditions of employment of employees in a bargaining unit represented by National Federation of Federal Employees, Local 1167. (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 the Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Region IV, 1776 Peachtree St., NW., Suite 501, North Wing, Atlanta, Georgia, 30309 and whose telephone number is (404) 881-2324. --------------- FOOTNOTES$ --------------- /1/ The name of the Respondent appears as amended based on the agreement of the parties at the hearing and the post hearing motion of the General Counsel granted by the Judge. /2/ The Respondent excepted to certain credibility findings made by the Judge. The demeanor of witnesses is a factor of consequence in resolving issues of credibility, and the Judge has had the advantage of observing the witnesses while they testified. The Authority will not overrule a Judge's resolution with respect to credibility unless a clear preponderance of all the relevant evidence demonstrates that such resolution is incorrect. The Authority has examined the record carefully, and finds no basis for reversing the Judge's credibility findings. /3/ Based on the determination herein, wherein the Authority has adopted the Judge's conclusion that the Respondent's conduct constituted a failure to bargain with the exclusive representative in violation of section 7116(a)(1) and (5) of the Statute, the Authority finds it unnecessary to consider and does not pass upon whether such conduct also constituted a violation of section 7116(a)(3) of the Statute. /4/ The name of the Respondent, as set forth in the caption, is more fully discussed in a separate section of this decision dealing with the General Counsel's motion, which I have granted, to delete the 31st Combat Support Group. /5/ The Charging Party did not file a brief within the established time limits. However, in a post-hearing Motion opposing the General Counsel's Motion to Amend Complaint, the Charging Party adopted "by reference" the General Counsel's brief but requested a different remedy than sought by the General Counsel. Respondent asserts that the Charging Party's Motion "appears to be nothing more than a subterfuge to attempt to file a brief untimely" and moved that it be stricken and not considered. Having carefully considered the matter, I conclude that Respondent's Motion to Strike should be and hereby is granted. /6/ The index on page 3 of the transcript is incorrect. The notation of "not offered" appearing beside General Counsel's Exhibit "No. 2" is hereby changed to show that the document was offered and received on page 17 of the transcript. Further, the General Counsel's Motion to Correct Transcript, to which no objection was filed, is hereby granted. /7/ The Motion presented no reasons or arguments in support thereof. /8/ Chief Steward Vitetta, a witness for Respondent, testified that immediately after the meeting he drove Schaffer home and when he asked how the meeting went, Schaffer replied that he and Erwin had "reached agreement that the committee, if they were going to be set up" would include representation from the Union, and that Erwin recognized the need to use Union stewards. /9/ Respondent asserts that attendance was voluntary but there's nothing in the memorandum telling the stewards that they have any choice in the matter. Although the tone of the memo is friendly and pleasant, it nevertheless is couched in language which in my opinion should lead the recipient to conclude that his or her attendance is mandatory. There was nothing in the memo to show any coordination with the Union. /10/ This was the last meeting attended by Breslin who in June was elected First Vice-President of the Union. Although Erwin knew Breslin did not intend to attend future meetings, Breslin's name was retained on the distribution list for notices of subsequent meetings. /11/ Internal Revenue Service, Atlanta District Office, 8 A/SLMR 370. See also American Federation of Government Employees, AFL-CIO and U.S. Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 4 FLRA No. 39 (1980) where the Authority upheld the Union's refusal to negotiate an agency proposal which would have infringed upon the Union's prerogative to designate its own representatives when dealing with agency management in the performance of certain representational functions. /12/ United States Air Force, Air Force Logistics Command, Newark, Ohio, 4 FLRA No. 70 (1980). /13/ Internal Revenue Service, Washington, D.C. 4 FLRA No. 68 (1980). See also Internal Revenue Service, Ogden Service Center, 7 A/SLMR 1032 (1977) where the Assistant Secretary stated that "the gravamen of the violation herein consists of the solicitation of views and recommendations from unit employees, selected by the Respondent, on matters for which the Complainant under the Order was entitled to be dealt with exclusively." See also VA, Veterans Administration, Veterans Administration Hospital, Muskogee, Oklahoma and American Federation of Government Employees, Local 2250 3 A/SLMR 491 (1973); Department of the Navy, Naval Air Station, Fallon, Nevada 4 A/SLMR 590 (1974).