[ v14 p113 ]
The decision of the Authority follows:
14 FLRA No. 25 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 No. 5-CA-20150 DECISION AND ORDER The Administrative Law Judge issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in the unfair labor practices alleged in the complaint, and recommending that the Respondent be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent filed exceptions to the Judge's Decision and the Charging Party filed an opposition to the Respondent'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 recommendations only to the extent consistent herewith. The Judge concluded that the Respondent's refusal to authorize payment of per diem allowances and travel expenses to William S. Shoell, the Union's designated representative for mid-term bargaining, constituted a refusal to comply with section 7131(a) of the Statute in violation of section 7116(a)(1) and (8). Subsequent to the issuance of the Judge's Decision, the United States Supreme Court concluded in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 104 S.Ct. 439(1983) that the obligation of an agency under section 7131(a) of the Statute to provide official time to employees representing an exclusive representative in the negotiation of a collective bargaining agreement does not encompass the payment of travel expenses and per diem allowances. Pursuant to that decision, and for the reasons set forth by the Court, the Authority concludes herein that the Respondent did not fail or refuse to comply with the provisions of section 7131(a) of the Statute. Therefore, it follows that the Respondent did not violate section 7116(a)(1) and (8) of the Statute. /1/ ORDER IT IS HEREBY ORDERED that the complaint in Case No. 5-CA-20150 be, and it hereby is, dismissed. /2/ Issued, Washington, D.C., March 23, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- 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 No.: 5-CA-20150 Janet T. Wachter For Charging Party Roger T. McNamara, Esq. For Respondent Sandra LeBold, Esq. For General Counsel, FLRA Before: SAMUEL A. CHAITOVITZ Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101 et seq., 92 Stat. 1191 (hereinafter referred to as the Statute) and the Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5 C.F.R. Chapter XIV, 2410 et seq. Pursuant to a Charge filed on March 15, 1982 and amended on June 30, 1982, by American Federation of Government Employees, Council 214 (hereinafter called the Union and/or AFGE Council 214) against Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio (hereinafter called Respondent and/or AFLC), the General Counsel of the FLRA, by the Director of Region 5, issued a Complaint and Notice of Hearing on July 12, 1982 and amended it on October 21, 1982. The Complaint, as amended, alleges that Respondent violated Sections 7116(a)(1) and (8) of the Statute by failing and refusing to grant travel and per diem expenses to a Union representative for the time the representative was to engage in negotiations with Respondent. AFLC filed an Answer denying that it had violated the Statute. A hearing in this matter was conducted before the undersigned in Chicago, Illinois. The Respondent, the Union and the General Counsel of the FLRA were represented and afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence, and to argue orally. Post hearing briefs were filed and have been fully considered. Based upon the entire record in this matter, my observation of the witnesses and their demeanor, and from my evaluation of the evidence, I make the following: Findings of Fact On January 13, 1978, American Federation of Government Employees, AFL-CIO (hereinafter called AFGE) was certified as the collective bargaining representative for a consolidated unit of all Respondent's wage grade and general schedule employees, with certain exclusions not here relevant. The collective bargaining unit includes employees of the AFLC located, inter alia, at Wright-Patterson Air Force Base, Dayton, Ohio and the Hill Air Force Base, Utah and at all times material William Shoell was an employee within the unit. A master collective bargaining agreement between Respondent and AFGE became effective May 3, 1979. At all times material AFGE Council 214 has been an agent of AFGE with respect to bargaining with Respondent on behalf of the above described collective bargaining unit. In mid-August 1979 General John P. Rollston, Respondent's Deputy Chief of Staff for Manpower and Personnel, was advised by Val Buxton, Respondent's Chief of Labor and Employee Relations, that relations between AFLC and AFGE Council 214 was deteriorating, especially as it related to mid-term bargaining, because there was no Union representative at the Wright-Patterson Air Force Base to carry on day-to-day bargaining. Either at that time, or shortly thereafter, Rollston telephoned AFGE President Kenneth Blaylock. Rollston suggested that it would be in their mutual interest, regarding mid-term bargaining, if there were a Union representative physically located at the Wright-Patterson Air Force Base so that Respondent could deal with the representative regularly, frequently and consistently and that this would expedite the resolution of problems. Blaylock said that he was thinking the same thing, perhaps for different reasons, and that it was a good idea. Blaylock expressed concern about AFGE's financial ability to lease office space and to pay for phones, etc., for a Wright-Patterson office. Rollston suggested that perhaps an arrangement could be made whereby Respondent provided the space. Rollston and Blaylock agreed to meet in Washington to discuss this matter further. During early September 1979, about ten days after the telephone conversation, Rollston met Blaylock in Blaylock's office in Washington, D.C. Both agreed that it would be to their mutual benefit to have a Union representative at Wright-Patterson to do mid-term bargaining. according to rollston's testimony ". . . there was a clear recognition on his (Blaylock's) part and on mine that there would be from time to time situations arising which would be clearly in our mutual best interests for the union to have a technical representative, an authority, some assistance, some outside, if you will, counsel to help . . . the union resident, representative to negotiate, and with prior agreement that we would in fact fund the travel of those people to assist the resident agent. . . . It was agreed-- I think it was recognized, if you will, because at that time we didn't even strike a precise agreement, but it was recognized that-- he recognized and I agreed that from time to time there would be a need on the part of the union to bring someone other than the resident Wright-Patterson representative in to conduct negotiations, that if there was that need and he felt it was appropriate for us to fund that, that there would be, before the travel was conducted, that there would be a prior and up-front agreement between the union and the AFLC as to who would fund that travel." /3/ The meeting adjourned without a final agreement because Blaylock had to submit the matter to AFGE Council 214 and seek its approval for the arrangement and Rollston had to seek authority to commit the funds. About two weeks later Rollston and Blaylock spoke on the telephone and Blaylock stated that he had received approval to have an individual representative stationed at Wright-Patterson and Rollston stated that he had authorization to furnish office space, office equipment and furniture. Blaylock indicated that he needed 6,000 copies of the Master Agreement and that would be very expensive. Rollston agreed to furnish the 6,000 copies. /4/ Rollston testified "Mr. Blaylock agreed that Council 214 would have an on-site representative of the Council to deal with us authoritatively on a day-to-day basis with the mid-term negotiations of the Labor Agreement, and that we in turn for that agreement would provide office space for that staff, and that we would provide eventually 9,000 copies of the Master Labor Agreement." /5/ AFLC and AFGE Council 214 entered into a written "Service Agreement" signed by Respondent on Feb. 26, 1980 and by AFGE Council 214 on March 14, 1980 wherein Respondent agreed to furnish enumerated facilities and equipment at Wright-Patterson Air Force Base to AFGE Council 214. Paragraph III provides, "III. Nothing in this service agreement will be used to support or oppose positions taken by either party relative to proposals involving the Master Labor Agreement." There is no reference in the Service Agreement to travel or per diem, with respect to Union representatives, nor is there any mention that AFGE Council 214 waived any rights it may have with respect to the payment of travel and per diem expenses for its bargaining representatives. Similarly there is no limitation as to whom AFGE Council 214 could designate as its bargaining representative. Union representative Ketcherside arrived at Wright-Patterson Air Force Base in January 1980 and from then to March 1980, he handled all mid-term bargaining responsibilities. During the latter part of March 1980, Ketcherside requested personnel from outside the Wright-Patterson Air Force Base area to handle some mid-term bargaining matters. Further, Mr. Ketcherside demanded travel and per diem expenses for the outside negotiators. Respondent denied payment on the grounds of the Blaylock-Rollston agreement and on the grounds that the expenditure of government monies for travel and per diem expenses require justification in accordance with the Joint Travel Regulations (JTRs) issued by the Department of Defense and in accordance with Air Force Regulation (AFR) 10-7. Subsequent to the denial of payment by the Respondent of the travel and per diem expenses, the Union filed an unfair labor practice charge. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 10 FLRA 281(1982), Petition for Review filed sub nom. Air Force Logistics Command (Wright-Patterson Air Force Base) v. Federal Labor Relations Authority, Docket No. 82-2411 (D.C. Cir., Nov. 29, 1982). In April and May 1980 Ketcherside was experiencing a backlog of proposed mid-term employer changes and he needed outside assistance. Buxton advised Ketcherside that he had no authority to abridge the Blaylock-Rollston agreement. Therefore, Ketcherside went to Rollston, who approved the request for the payment of per diem and travel expenses for Union representatives. Ketcherside indicated that he did not want his request on this occasion to establish any precedence. The only other instance in which Respondent paid travel and per diem expenses for mid-term negotiations arose as a result of the Job Performance Appraisal System (JPAS) that had to be in place by October 1980. In this case, AFLC approved travel and per diem funding for Union representatives because the JPAS negotiations were complex and outside assistance was required and justified under the JTRs. By letter dated December 4, 1981, AFLC notified the AFGE Council 214 of Respondent's intention to extend its Electronic Mechanic Job Element Test (JET) from WG-10 employees, "to other grade levels within that series, as well as extend the JET to other series". Respondent set a December 28, 1981 deadline for submission of proposals by the Union concerning the JETs. By letter dated December 9, 1981, Paul Palacio, President of AFGE Council 214, requested that AFLC bargain with the Union concerning the extension of the JETs to the additional grade levels and series and also requested an extension of 45 days within which to submit proposals. AFLC notified Palacio by letter dated December 14, 1981, that the date for submission of proposals was extended to January 8, 1982. By letter dated December 17, 1981, Palacio notified Respondent that the AFGE Council 214 Vice-President, William S. Shoell, a bargaining unit employee at Hill Air Force Base, Utah, would be handling negotiations on behalf of the Union concerning the JETs. This letter advised Respondent to send correspondence to Shoell at Hill Air Force Base. /6/ During mid January 1982, Shoell was on military leave and was unavailable for bargaining. The Union designated different representatives to bargain with AFLC's representative, Ms. Corliss, during the period Shoell was unavailable. On January 26, 1982 Palacio sent a letter to AFLC advising it that Shoell, who had been temporarily unavailable due to the military commitment, was again available to continue the negotiations on JETs. Palacio asked Respondent to submit information regarding JETs and stated that AFGE Council 214 was awaiting the Respondent's counterproposals. By letter dated January 29, 1982, Palacio confirmed a telephone conversation of January 28, 1982 with William Langley, Respondent's Labor Relations Specialist. In the telephone conversation, Palacio had requested that arrangements be made to bring Shoell to the Wright-Patterson Air Force Base to negotiate. Langley said, in response, that negotiations with Shoell would take place by telephone and/or mail. Palacio advised Respondent on the telephone, and in his letter, that AFGE Council 214 strongly objected to negotiations by telephone and/or mail. Palacio stated that this proposed manner of negotiating is contrary to "Public Law 95-454". By letter dated February 1, 1982, AFLC responded to Palacio's letter stating that Respondent had been able to find nothing in the Statute indicating that negotiations by mail and/or telephone are improper. Respondent stated that since Palacio had chosen to designate a negotiator from outside Wright-Patterson Air Force Base, rather than conduct the negotiations himself, negotiations by mail and/or telephone were appropriate. Langley, contacted Shoell's supervisor at Hill Air Force Base and arranged a telephone meeting. On February 3, 1982, Langley phoned Shoell early in the morning. Shoell explained that he was at his work site where it was difficult to talk and that he had not seen the Respondent's proposals. He said he would go to the Union office, review the proposals and then would talk to Langley. Langley later phoned Shoell at the Union office and Shoell advised Langley that negotiations should take place across the table because the parties were far apart on the issues and the negotiations could be very lengthy. Shoell reiterated the position of AFGE Council 214 that the AFLC was required by law to bring him to Wright-Patterson to conduct negotiations. Langley refused, saying there was no justification for bringing Shoell to the Wright-Patterson Air Force Base. By letter dated February 8, 1982, AFGE Council 214 refused AFLC's request that the negotiations concerning the JETs be conducted by mail or over the telephone and requested that official time, travel, per diem and lodging be provided to Shoell for his travel from Hill Air Force Base, Utah to the Wright-Patterson Air Force Base to engage in such negotiations. By letter dated February 12, 1982, AFLC informed the AFGE Council 214 that, while Respondent was willing to negotiate concerning the JETs with Shoell or anyone designated by the Union for such purpose, it would not pay travel and per diem expenses for such negotiations. By letter, dated February 25, 1982, the Union requested, in lieu of AFLC affording official time, travel and per diem expenses to Shoell, that Respondent either send one of its negotiators to Hill Air Force Base, to negotiate the JETs issue or that it designate someone at Hill Air Force Base as its negotiator to negotiate with Shoell. By letter dated March 3, 1982, AFLC denied the request of the AFGE Council 214 and reiterated that it would not pay Shoell's travel and per diem expenses and announced that it would implement the JETs on March 19, 1982, unless AFGE Council 214 presented itself for negotiations prior to that date or agreed to bargain by telephone and/or mail. During early March 1982 Shoell was at Wright-Patterson Air Force Base to attend a hearing and an Executive Board meeting. The Union paid his transportation expenses and he was on leave without pay status. Shoell did not contact Respondent and ask to bargain about the JETs. Management officials knew of Shoell's presence and did not ask to meet with him concerning the JETs. On or about March 30, 1982, the JETs were extended from WG-10 employees to the WG-11 grade level in the Electronic Mechanic series. Shoell did not travel to Wright-Patterson Air Force Base, Ohio and no negotiations took place regarding JETs. Discussion and Conclusions The Federal Labor Relations Authority (FLRA) has held that Section 7131(a) of the Statute authorizes an employee representative of an exclusive collective bargaining representative official time, including payment for travel and per diem expenses, for the purposes of conducting negotiations with Agency representatives. Interpretation and Guidance, 2 FLRA 265(1979). The FLRA has held that such a representative of an exclusive collective bargaining representative is entitled to payments for travel and per diem expenses to negotiate proposed agency changes in working conditions during the term of a collective bargaining agreement. 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), Cert. granted, 51 U.S. Law Week 3432 (January 17, 1983) and Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, supra. But see, Division of Military and Naval Affairs, State of New York (Albany, New York), 7 FLRA 458(1981), reversed sub nom. Division of Military and Naval Affairs v. Federal Labor Relations Authority, 683 F.2d 45 (2d Cir. 1982), U.S. Department of Agriculture, Science and Education Administration, Agricultural Research, North Central Region, Dakotas-Alaska Area, 6 FLRA 265(1981), reversed sub nom. United States Department of Agriculture v. Federal Labor Relations Authority, 691 F.2d 1242 (8th Cir. 1982); and Florida National Guard, 5 FLRA No. 49, (1981) reversed sub nom. Florida National Guard and Department of Defense v. Federal Labor Relations Authority, 699 F.2d 1092 (11th Cir., 1983). AFLC, however contends that AFGE Council 214, by the agreement between Rollston and Blaylock, waived its right to per diem and travel payments for any designated representative from a base other than Wright-Patterson, who has to travel to Wright-Patterson in order to negotiate. The FLRA has held that any waiver of any statutory rights, by a labor organization, must be clear and unmistakable. Absent such a clear and unmistakable waiver, the labor organization will not be concluded to have waived its statutory rights. Department of Health and Human Services, Region IV, Atlanta, Georgia, 9 FLRA 1065(1982) and Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA No. 2(1981). I conclude that the agreement between Blaylock and Rollston did not constitute such a clear and unmistakable waiver of the Union's rights, under 7131(a) of the Statute, to payments of per diem and travel expenses for Union designated representatives. The agreement was the product of a series of conversations between Blaylock and Rollston and the two individuals apparently did not specifically discuss any waiver of statutory rights by the Union. Rather, the agreement was a vague one whereby AFGE Council 214 agreed to have a designated representative stationed at Wright-Patterson if the Respondent agreed to provide office space, furniture and equipment. This would provide Respondent with quick and ready access to Union representatives for day-to-day problems. The purpose of this agreement was to improve communications by making the parties quickly accessible to each other. The Union did not specifically agree that it would never designate any other representative for negotiating or that it waived its right to travel and per diem payments for such a representative. In fact, Blaylock and Rollston specifically recognized that the Union would, on occasion, need to use representatives from bases other than Wright-Patterson. The parties seemed to mention that, with advance agreement, such a representative would be paid per diem and travel expenses. This reference to "agreement" does not clearly mean that both sides must agree on the necessity for an off-base Union representative before the representative would be entitled to payment of travel and per diem expenses. Rather, it could equally reasonably mean that, when given advance notice by the Union of its need for an off-base representative, there would be agreement by AFLC to pay such representative travel and per diem expenses. In this regard it must be noted that in negotiating the Master Agreement, the Union specifically and lawfully refused to negotiate concerning a waiver of its statutory rights under Section 7131 of the Statute. American Federation of Government Employees, AFL-CIO, 4 FLRA No. 39(1980). Further, when the Rollston-blaylock oral agreement was reduced to writing, it made no mention of any limitation on the Union's right to designate its representatives for bargaining or its rights to payments to such representatives for travel and per diem expenses. Accordingly, I reject Respondent's contention that the Blaylock-Rollston agreement constituted a waiver by the Union of its rights granted by Section 7131(a) of the Statute. /7/ Respondent seems to urge that because, in 1980, Ketcherside asked that Union representatives be brought from other bases, this somehow either establishes a waiver by practice or was consistent with AFLC's interpretation of the Blaylock-Rollston agreement. This is rejected. When AFLC refused to pay the per diem expenses, the Union filed a successful unfair labor practice charge. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, supra. This is hardly consistent with AFLC's position that there was a waiver. /8/ Similarly, I reject Respondent's contention that Shoell agreed to negotiate by telephone when he received the call at his work site at Hill Air Force Base. The Union had been insisting on face-to-face negotiations. Upon receiving the telephone call from Respondent and stating he would call back, Shoell was merely removing himself from his work site, and going to the Union office where he could hear better and could review Respondent's proposals, which Shoell had not yet seen, so that he could make a reasonable response. Respondent then called Shoell at the Union office and Shoell reiterated the Union's position that they should bargain face-to-face. Shoell did not agree or waive any rights that the Union had to bargain face-to-face over the change in the use of the JETs or to receive per diem and travel payments under Section 7131(a) of the Statute. /9/ Thus it is concluded that the change in the use of the JETs constituted a change in conditions of employment and that the Union was entitled to bargain about such change, to designate its own representative and to have the per diem and travel expenses of the representative paid by AFLC. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, supra. Shoell, a bargaining unit employee at Hill Air Force Base, was designated by the AFGE Council 214 to be its negotiator concerning Respondent's proposal to extend the JETs. Shoell was entitled, pursuant to Section 7131(a) of the Statute, to have Respondent pay his per diem and travel expenses so that he could represent the Union at the JET negotiations at Wright-Patterson Air Force Base, and Respondent's refusal to authorize such payment violated Section 7116(a)(1) and (8) of the Statute. /10/ Further the FLRA has already rejected AFLC's defense that it could require justification from the Union for the selection of out-of-town negotiations before Respondent had any obligation under Section 7131(a) of the Statute. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, supra. Finally Respondent urges the FLRA to reverse its earlier holdings to the effect that Section 7131(a) of the Statute requires that agencies pay travel and per diem expenses for union negotiators. I am constrained to follow the FLRA decisions and therefore reject Respondent's contention. I need not decide whether a status quo ante remedy would be appropriate in the subject case because neither the General Counsel of the FLRA nor the Union has requested such a remedy. Having concluded that Respondent violated Sections 7116(a)(1) and (8) of Statute I recommend that the Authority issue the following: 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, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, shall: 1. Cease and desist from: (a) Failing and refusing to provide to William Shoell, or any other representative, official time, including necessary travel and per diem expenses, in compliance with Section 7131(a) of the Statute, for the time they were to engage in representing the American Federation of Government Employees, Council 214, AFL-CIO, the employees' exclusive representative, during mid-term negotiations. (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. SAMUEL A. CHAITOVITZ Administrative Law Judge Dated: May 6, 1983 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 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT fail or refuse to provide to William Shoell, or any other representative, official time, including necessary travel and per diem expenses, in compliance with Section 7131(a) of the Statute, for the time they are 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) 886-3468. --------------- FOOTNOTES$ --------------- /1/ In view of the disposition herein, the Authority finds it unnecessary to pass upon the Judge's findings with respect to the alternative defenses raised by the Respondent. /2/ The Authority received a motion filed by the Regional Director seeking to have the case remanded to the Regional Director for withdrawal of the complaint and dismissal of the charge. In view of the Authority's disposition on the merits of this case, the Regional Director's motion is hereby denied. /3/ Transcript pages 79-80. /4/ 9,000 copies were furnished. /5/ Transcript page 82. /6/ Shoell was apparently designated by AFGE Council 214 to handle the JET negotiations because he had taken the JET himself and had handled numerous employee complaints regarding JETs. /7/ Although General Counsel for the FLRA pointed out that the waiver argument was litigated in Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, supra, neither General Counsel of the FLRA nor the Charging Party argued the matter was disposed of in the subject case by operation of collateral estoppel. Collateral estoppel does not apply in the subject case because, although litigated, the waiver issue was not determined in the prior case nor has there been a final judgement in that case. cf. Ashe v. Swensen, 397 U.S. 436(1970). /8/ Further, with respect to two other occasions AFLC did pay the per diem and travel expenses of Union representatives. /9/ Absent some unusual circumstances, effective collective bargaining and negotiations involve face-to-face meetings between the parties and AFLC could not, unilaterally, limit the Union's right to carry on such face-to-face negotiations. There is no allegation, however, that AFLC's insistence upon telephonic and/or letter negotiations was an independent violation of the Statute. /10/ The fact that Shoell was present at Wright-Patterson Air Force Base, on a leave without pay status, at Union expense, to conduct other business, did not require him to bargain about JETs at that time or to give up his right to bargain and be paid for his per diem and travel expenses.