[ v13 p612 ]
The decision of the Authority follows:
13 FLRA No. 103 DEPARTMENT OF DEFENSE DEPARTMENT OF THE AIR FORCE ARMAMENT DIVISION, AFSC EGLIN AIR FORCE BASE Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1897, AFL-CIO Charging Party Case No. 4-CA-351 DECISION AND ORDER The Administrative Law Judge issued her Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Judge's Decision and a brief in support thereof. /1/ The Respondent also 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 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, conclusions and recommended Order. ORDER IT IS ORDERED that the complaint in Case No. 4-CA-351 be, and it hereby is, dismissed. Issued, Washington, D.C., January 13, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- DEPARTMENT OF DEFENSE DEPARTMENT OF THE AIR FORCE ARMAMENT DIVISION, AFSC EGLIN AIR FORCE BASE, Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1897, AFL-CIO, Charging Party Case No. 4-CA-351 Gordon B. Finley., Lt. Col., USAF, Attorney for the Respondent Regina N. Kane, Attorney for the General Counsel Federal Labor Relations Authority Before: ISABELLE R. Cappello Administrative Law Judge DECISION This is a proceeding under the Federal Service Labor-Management Relations Statute, 92 Stat. 1191(1978), 5 U.S.C. 7101 et seq. (Supp. IV, 1980), hereinafter referred to as the "Statute," and the rules and regulations issued thereunder and published in 5 CFR 2411 et seq. Pursuant to a charge filed on January 29, 1980, by Local 1897 of the American Federation of Government Employees (hereinafter, the "Union" or the "Charging Party"), the General Counsel of the Federal Labor Relations Authority investigated and filed the complaint in this case. The complaint alleges that violations of Section 7116(a)(1) and (5) of the Statute have occurred. /1/ The violative acts and conduct are alleged to be that, on or about January 5, 1980, Major General Robert M. Bond, acting for Respondent, signed the final version of an affirmative action plan for fiscal year 1980 (hereinafter, the "Plan"), and thereafter forwarded it to Air Force Headquarters for consolidation with other such plans from throughout the Command, without giving the Union prior notice and an opportunity to bargain concerning the Plan. Respondent admits that an "official copy" of the Plan was "signed and staffed" at Eglin Air Force Base and, on about January 5, was forwarded to Headquarters, Air Force Systems Command, Andrews Air Force Base, Maryland, (GC-1(D)). /2/ It denies that the official copy was "final," in the sense that it was beyond revision necessary to comply with any labor-management negotiations. It denies that signing and forwarding the Plan to Air Force Systems Command (hereinafter, "AFSC") constituted unilateral and unlawful implementation of the Plan without notice and an opportunity to bargain to the Union. Respondent affirmatively avers that it gave the Union a copy of the Plan on January 8 and timely notice and an opportunity to bargain over the Plan, and that the Union failed to avail itself of this opportunity. A hearing in this matter was held at Eglin Air Force Base on April 22, 1982. The parties appeared, adduced evidence, and examined and cross-examined witnesses. Briefs were filed on June 14, by Respondent, and June 18, by the General Counsel. Based upon my consideration of the briefs and the record made in this case, including my observation of the demeanor of witnesses, I make the following findings of fact, conclusions of law, and recommended order. Findings of Fact 1. It has been admitted that the Department of Defense ("DOD"), is an agency, within the meaning of the Statute, that the Department of the Air Force is a primary national subdivision of DOD, and that the Armament Division, AFSC, at Eglin Air Force Base is an activity of the Air Force, within the meaning of 5 CFR 2421.4 and .5. The only remedy being sought by the General Counsel is the posting of a cease-and-desist order at Eglin Air Force Base. See TR 13. 2. Major General Robert M. Bond was the senior installation commander at Eglin Air Force Base during the period of the alleged violative acts and conduct, and up until May 1981. Douglas M. Johnson has been the Labor Relations Officer at Eglin during the period at issue in this proceeding. Eddie L. White was the Equal Employment Opportunity ("EEO") Officer from the early fall of 1979 until on or about June 1980. Mr. White's office was responsible for developing the Plan at issue. 3. Eglin is organized into "two-letter" commands and has a base commander, who is a colonel. There are about 25 two-letter commands at Eglin. During the period here at issue, Major General Bond was directly responsible for the equal employment opportunity ("EEO") program at Eglin Air Force Base. This came about because of a class action suit, filed in November 1976, against Eglin Air Force Base. The suit alleged discrimination with regard to minorities. As a result of the suit, there has been a "very charged atmosphere that existed in the local communities with regard to hiring at Eglin." (TR 112) The suit has received "quite a bit of notoriety in Washington with the AFSC Commander." (TR 113). 4. It was admitted that the Union has been the exclusive representative of certain employees at Eglin since on or about April 14, 1975. James E. Sanders was president of Local 1897 of the Union from 1978 to 1980. He is not presently a member of the union. Maureen Preta has been the women's coordinator for Local 1897 since April 1978, and a Union member for approximately four to five years. As women's coordinator, she is the Union representative on the EEO Advisory Committee at Eglin. Her Union duties include participation in negotiations on affirmative action plans. 5. Beginning in the summer of 1979, Ms. Preta attended four or five meetings in regard to formulation of the Plan. Others attending included representatives from each two-letter organization at Eglin and other special-interest groups at Eglin. Other than these meetings, Ms. Preta participated in no meetings concerning the Plan. The meetings concerning the Plan were chaired by the EEO Officer. The Purpose of the meetings was to pass on information coming in from Headquarters, Air Force Systems Command ("HQ AFSC") on how the Plan was to be developed. 6. Fiscal year 1980 was considered a transitional year in the development of an EEO plan, in that labor force data from the 1970 Census was to be applied against projected vacancies at Eglin to establish goals, at the "Center" level, the "Center" being Eglin Air Force Base. (TR 31). Previously, such a statistical approach had not been used; and each two-letter organization at Eglin had developed its own plan. In the development of the Center Plan, the role of the two-letter organizations was limited to submission of their projected vacancies to Mr. White. 7. On December 11, 1979, at a meeting chaired by Mr. White, Mr. White advised attendees, including Ms. Preta, that a "suspense" of January 3 had been given to Eglin in which to have the Plan signed and off the Base to AFSC. A suspense" is an internally-imposed due date. Development of the Plan had not been started at the time of the December 11 meeting, because final instructions on how to construct it had just been received from HQ AFSC. 8. Ms. Preta, who was planning leave over the December holiday period, was concerned about being able to adequately review the Plan, because of the January 3 suspense date. She alerted Mr. Sanders to keep a lookout for a copy of the Plan, and volunteered to come in to review it, once he received a copy. Ms. Preta was on leave between December 19, 1979, and January 7. No copy of the Plan was received by Mr. Sanders during this period. 9. The Plan was signed on a Saturday, January 7, by Major General Bond. An "official" copy of it was placed on an aircraft to HQ AFSC, in lieu of using the regular mail. (GC-1(d), paragraph 7(a). It was apparently forwarded without a transmittal memorandum, as none could be located in the files at the Base. Mr. Johnson talked, many times, with Respondent's legal counsel about bargaining obligations concerning the Plan. On Friday, January 5, the legal counsel assured Mr. Johnson that Major General Bond was aware of the obligation. Mr. Johnson then felt assured that he was free to negotiate concerning the Plan, even after it had been forwarded to HQ AFSC. Mr. Johnson admitted that, initially, he had some "concerns" about forwarding the signed Plan to Headquarters, before negotiating with the Union. (TR 136). Mr. Johnson did not himself discuss the matter with Major General Bond. 10. No negotiations with the Union preceded the signing and forwarding of the Plan to HQ AFSC. 11. HQ AFSC needed the Eglin Plan to consolidate with plans prepared by each of the other eight AFSC bases. Each year, the consolidated data is used to produce a "Command Plan" for the entire AFSC. The four-star general who is the overall commander of AFSC then signs the Command Plan, thereby making a "commitment" to it. (TR 174). The Command Plan is then printed and sent to Headquarters, Air Force. The Air Force uses the data to produce a book entitled "EEO Affirmative Action Plan." (TR 174). 12. At the HQ AFSC level, the plans are used to see what commitments the bases have made and whether they are adequate, and to track accomplishments. After the plans are sent in by the bases, they are still subject to changes which HQ AFSC thinks are needed. Since HQ AFSC usually works closely with the bases, by telephone, in preparing the goals, the plans received from the bases are usually "all set," by the time they reach HQ AFSC. (TR 177). Since it takes about four weeks for HQ AFSC to consolidate the data received from the bases, the bases can also call in changes, of their own volition. Even after the Command Plan is printed, the bases can make changes, if they have a reason for so doing. 13. HQ AFSC distributes copies of the printed Command Plan, for each year, to each of the eight bases in the command. This is done because the bases like to see how they compare to one another. 14. Upon her return to the office, on January 7, Ms. Preta called the EEO office to ask about the status of the Plan. She was told that it was signed and had been sent to HQ AFSC. She so informed Mr. Sanders who, in turn, called Mr. Johnson about its status. Mr. Johnson told Mr. Sanders that he would get him a copy of the Plan, when it was "finalized." (TR 72) At that time, not enough copies of the Plan had been received from the printing office, and not even Mr. Sanders had seen it. 15. The next day Mr. Sanders received a copy of the Plan, through the mail. An accompanying memorandum from Mr. Johnson dated January 8, referred to the Plan and the "attendant" FY 80 Federal Equal Opportunity Recruitment Plan ("FEORP"). (Jt-2) FEORP is one section of an equal employment opportunity plan. The January 8 memorandum states that: "Although the Plans have been forwarded to HQ AFSC for consolidation with other submissions from throughout the command, this installation stands ready in good faith to meet its obligation under Chapter 71 of 5 U.S.C." (Jt-2). He also referred Mr. Sanders to Mr. White for the answers to any technical questions. He gave the Union until January 16 to make formal comments or requests. 16. On January 16, Mr. Sanders sent to Mr. Johnson, a memorandum detailing the results of the Union review of the Plan. Five inadequacies were noted, and five items of data were questioned. A request for a response from the EEO office was made. The Union considered this letter to be a request to negotiate. Respondent did not. 17. On January 19, Ms. Preta attended a meeting of local black community leaders who were also concerned about the Plan. The meeting was called by the president of the local NAACP chapter and held in a community center at Fort Walton Beach, Florida, near where Eglin Air Force Base is located. The meeting was called because of the black community concern over the goals in the Plan. Mr. White attended the meeting and acted as the spokesperson for Eglin Air Force Base. Ms. Preta spoke up at the meeting, and asked Mr. White if he knew whether the Plan could be or would be amended. Mr. White replied that he did not know. As the EEO officer, Mr. White had no responsibility for collective bargaining. Ms. Preta then asked him to consult with Major General Bond about the possibility of amending the Plan and get back to the group with his reply. Mr. White agreed to meet with Major General Bond on Monday morning. Mr. White left the meeting before it ended. After Mr. White left, the attendees agreed to meet on Monday evening, January 21, to hear the response from Major General Bond. 18. On January 21, at 7:00 p.m., the community was held as planned. Ten to 15 people attended, among whom were Mr. White, Mr. Sanders, and Ms. Preta. Mr. White personally delivered to the meeting the response he had received from Major General Bond. Mr. White stated that he had had the meeting with Major General Bond, and that "General Bond said that he would not amend the plan." (TR 45). /4/ 19. Mr. Sanders testified that, at a later date, Mr. White told him that "General Bond did not intend to say that." (TR 79). Mr. Sanders also testified that Mr. White "seemed to be under some pressure" when he made this explanation. (TR 77). Because of Mr. White's denial of certain statements he had made, and the fear that he might even deny being at the January 21 meeting, Mr. Sanders, Ms. Preta, and five other attendees at the January 21 meeting, signed a statement that Mr. White was at the meeting. The statement also notes that Mr. White had presented the group with Major General Bond's response to the question of whether he was willing to amend the Plan, and that the response was that the Plan would not be amended, but that the 2-letter organizations would compile their own plans and he would hold the 2-letter chiefs responsible for achieving reasonable goals. See GC-3. This statement was signed a day or so after January 21. 20. After Mr. White left the meeting on January 21, the group decided to draft a letter to Major General Bond expressing concern over the Plan. The letter was drafted and signed by Mr. Sanders, as president of the Union, and by representatives of three local community groups. It was read by Mr. Sanders to a press conference called by the president of the local NAACP chapter, on January 22, and then delivered to Major General Bond that day. The letter stated objections to the Plan, including its not having been negotiated with the Union. It concluded with the statement that the Plan "represented a major regression and is not considered to be in either the spirit or the letter of the law." (Jt-4). 21. On January 24, Major General Bond wrote a letter to Mr. Sanders complaining that the content of the January 22 letter, and statements attributed to Mr. Sanders in the press, were inflammatory and divisive in nature. Major General Bond defended his commitment to affirmative action, and noted that the planning process for fiscal year 1980, as regards equal employment opportunity, was carried out under new and often changing guidance, and aggravated by "the pressures of meeting a short suspense." (Jt-5, paragraph 3). He made comments on objections raised to the "1980 equal employment opportunity plan." (Jt-5, paragraph 4). He noted that there was no requirement to solicit input from interest groups during the planning process, and only upon completion of the planning process was it appropriate to solicit comments from labor organizations at Eglin. (Jt. 59, paragraph 4d). He reiterated that Eglin stood "ready in good faith to meet its obligations under the law," and was assessing each expressed concern of the Union, and would "negotiate in good faith." (Jt-5, paragraph 4c). He invited Mr. Sanders, and other Union officers, and those who were a party to the January 22 letter, to attend a staff briefing on affirmative action planning, on January 31. 22. Based on the fact that the Plan had already been signed by Major General Bond, the senior commander at Eglin Air Force Base, and sent off the base, coupled with the advice of the EEO Officer that Major General Bond would not amend the Plan, it was the view of the Union that "there could not be any negotiations on something that was already set in concrete." (TR 58). Accordingly, on January 24, Mr. Sanders signed the unfair labor practice charge which is the subject of this proceeding. It is not clear from the record as to whether Mr. Sanders signed the charge before or after receiving Major General Bond's letter of January 24. 23. On January 31, a press conference called by Major General Bond was held. Mr. Sanders, Ms. Preta and the Fifth District Vice President of the Union attended. Mr. Johnson was also there. Staff personnel from Major General Bond's office explained the Plan. At the end of the presentation, someone from the press "pointedly asked Mr. Johnson a question - said, 'Well, after this will the Union be allowed to negotiate the 1980 EEO Plan?'" (TR 83). Mr. Johnson replied: "No, we don't negotiate anything until its finalized." (TR 83). The Union and Mr. Johnson hold different views as to the meaning of the word "finalized," in connection with the Plan. To the Union, it means "no possible change could be made," after the Plan was sent to Washington. (TR 93, 126). To Mr. Johnson it means that management has finalized its proposal, and is ready to negotiate with the Union. At the January 31 meeting, Mr. Johnson again assured Union officials that the Plan could be negotiated even though it had left the base. 24. On February 15, Mr. Johnson replied by letter to the January 16 letter from the Union President. It stated that: "The guidelines pertaining to the FY 80 affirmative action Plan do not require input from labor organizations or other interested groups during the formulation stage." It justified what was in the Plan. It ended with a declaration that the Plan had been prepared in strict compliance with prevailing guidance. The letter left the Union with the impression that "management did not believe that they had to negotiate with the Union." (TR 66). The delay in formulating the February 16 letter was caused by the involvement of the EEO staff in preparing for the January 31 press conference and in working on a consent judgment to be entered in the lawsuit pending over EEO matters at Eglin. Had Mr. Johnson viewed the January 16 letter from Mr. Sanders as a request to negotiate, he declared that a more immediate response would have been forthcoming. 25. Eglin Air Force Base implemented the Plan on May 1, after the charge in this case had been investigated and the Regional Director of the Authority had, on April 8, upheld Eglin's actions and refused to issue a complaint. (After an appeal by the Union, this complaint eventually did issue. See TR 162.) Mr. Johnson speculated that, if the Union had not filed a charge, implementation would have taken place after Respondent responded to the Union's January 16 letter, because the Union had not made a specific request to negotiate, accompanied by specific proposals. 26. At the time of the hearing a FY 82 Plan was in effect. Negotiations with the Union took place before the Plan was signed by the Commander. Discussion and Conclusions Respondent concedes that it "probably could have" found a "better way to address the fiscal year 1980 Plan," but argues that, under the circumstances which obtained in January 1980, it did not deprive the Union of its opportunity to bargain over the Plan, as alleged. (RBr 13-14.) Bearing in mind that the General Counsel must prove its case by the "preponderance of the evidence" (5 CFR 2423.18), I am constrained to agree with the argument of Respondent. And I heartily concur in its concession. There is no doubt, as the General Counsel points out at page 9 of his brief, that the Union had no specific notice or any meaningful opportunity to proffer proposals before the Plan was shipped off base to headquarters, on January 7. This act understandably gave rise to suspicion that the Union was faced with a fait accompli. However, credible evidence established that the act of sending the Plan off base to headquarters was for informational purposes and did not constitute implementation, and that changes could still be made. Indeed, headquarters probably expected subsequent changes, since it was issuing instructions on how to construct the Plan as late as December and then set a due date of January 3. There was little chance, over a holiday period, that the bases could finalize the Plans, offer them to the unions for negotiations, and complete the negotiations within such a time frame. The Plan was not implemented at Eglin until May 1. By then the Union had a copy of the Plan for several months, and had received repeated assurances from management that it intended to negotiate in good faith with the Union. On January 8, such an assurance was given by the labor relations officer, when he presented the Plan to the Union. On January 24, such an assurance was repeated by the senior installation commander. On January 31, the labor relations officer reassured the Union that negotiations could proceed. See findings 15, 21 and 23 supra. Even the Union appears to have felt that negotiations were possible after the Plan was sent to headquarters, for on January 16, it submitted what it considered to be a request to negotiate, in the form of a letter criticizing the Plan and asking for information. The Union understandably became convinced that there was no meaningful opportunity for negotiations, when the EEO officer, on January 21, informed its president and a group of community organizations, that the senior installation commander did not intend to amend the Plan. This unfortunate advice, however, was almost immediately corrected, by both the EEO officer and, on January 24, by the senior installation commander. See findings 19 and 21, supra. Nothing thereafter transpired, before implementation on May 1, to indicate that the January 24 advice of the senior installation commander, that he stood ready to negotiate in good faith, was false. The February 16 letter of the labor relations officer, in response to the January 16 critique of the Plan by the Union, did attempt to explain and justify the Plan. But it cannot fairly be read as flatly foreclosing consideration of any specific proposals the Union chose to submit for negotiation. While it did not specifically reiterate management's intent to negotiate in good faith over the Plan, this may have been the result of the fact that the Union had already filed a charge of failure to bargain in good faith. In any event, the February 15 letter is not clear evidence that Respondent was refusing to bargain in good faith. The General Counsel argues that Respondent's offers to negotiate were "merely paying lip service to its obligation to engage in meaningful collective bargaining with the Union." (GCBr-15). The General Counsel relies on the absence of anything, in writing, that indicates that Respondent considered altering or amending the Plan submitted to the Union on January 8. While the presence of such a statement would have bolstered Respondent's case, its absence is not fatal. The General Counsel also relies on the presence of several written statements, one being that of the senior installation commander, in his January 24 letter to the Union, that there was no obligation to solicit comments from labor organizations until "completion of the planning process." See GCBr-16. I take this to mean only that there was no obligation to bargain until Respondent had completed the process of getting its offer on the bargaining table, which is correct. Another statement relied upon by the General Counsel to support the "mere lip service" argument is that of the labor relations officer, in his February 15 letter to the Union in which he stated that input from labor organizations is not required "during the formulation stage" of affirmative action plans. (GCBr-16). Since the labor relations officer had earlier submitted the Plan to the Union with an offer to negotiate in good faith concerning it, I also view this statement to have been intended to apply to input while the Respondent is formulating its offer. In a footnote, the General Counsel also asks that an adverse inference be drawn from the failure of the Respondent to call either the EEO officer or the senior installation commander to testify. (GCBr-18, fn, 35). Neither is presently employed or stationed at Eglin. I therefore decline to draw such an inference, in the belief that agencies should not have to act, at such a peril, in declining to go to the expense of locating and transporting such witnesses. Both parties continue to argue about the admissibility of evidence under the Federal Rules of Evidence. See GCBr 17-18 and RBr 11-12. They are reminded that such rules do not apply to these proceedings. See 5 CFR 2423.17. While all the issues raised by the parties have been considered, the resolution of some would only serve to lengthen this discussion without altering the order to be recommended. Accordingly, judicial restraint is exercised. Ultimate Findings and Recommended Order The preponderance of the evidence does not demonstrate that the alleged violations of Section 7116(a)(1) and (5) have occurred. Accordingly, it is ORDERED, that the complaint be, and hereby is, dismissed. ISABELLE R. CAPPELLO Administrative Law Judge Dated: July 20, 1982 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ The Respondent contends that the General Counsel's exceptions should not be considered on the basis that they were inappropriately served and thus were not timely filed in accordance with the Authority's Rules and Regulations. Inasmuch as the General Counsel's exceptions and brief in support thereof were received by the Authority within the prescribed time limits, the Respondent's contention is rejected. /2/ Section 7116(a) provides, in pertinent part, that: For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; . . . (or) (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter . . .. /3/ "GC" refers to the exhibits of the General Counsel. Other abbreviations used in this decision are as follows: "JT" refers to joint exhibits of the parties. Multipage exhibits will be referenced by the exhibit number, followed by the page or paragraph number. "GCBr" refers to the brief of the General Counsel and "RBr," to that of Respondent. "TR" refers to the transcript. All dates referenced herein are in 1980, unless otherwise specified. /4/ Ms. Preta and Mr. Sanders both so testified. Both were credible witnesses, giving their testimony in an honest and forthright manner. Since Mr. Sanders is no longer a member of the Union, his testimony may be regarded as unbiased. Respondent called no witnesses to rebut their testimony. Accordingly, I have credited their testimony that Mr. White made this statement at the meeting. Since it is unlikely that Mr. White would have fabricated such an unpopular message for delivery to an audience concerned with obtaining changes to the Plan, I also find that Major General Bond did indeed say something to Mr. White that left the impression that the Plan sent to HQ AFSC would not be amended.