[ v15 p790 ]
The decision of the Authority follows:
15 FLRA No. 150 DEPARTMENT OF DEFENSE DEPARTMENT OF THE ARMY HEADQUARTERS, XVIII AIRBORNE CORPS, AND FORT BRAGG Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1770, AFL-CIO Charging Party Case Nos. 4-CA-803 4-CA-895 DECISION AND ORDER This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations. Upon consideration of the entire record, including the stipulation of facts, accompanying exhibits, and the parties' contentions, the Authority finds: At all times relevant herein, the American Federation of Government Employees, Local 1770, AFL-CIO (the Union), has been recognized as the exclusive representative of a unit consisting of all eligible appropriated fund civilian employees who are "administered by Respondent's Civilian Personnel Office." A collective bargaining agreement between the parties has been in effect during this period, Article VI of which provides as follows: ARTICLE VI SECTION 1. The Employer recognizes the Officers, duly designated representatives, and a reasonable number of stewards, duly elected or appointed, who shall meet with the employer or his designated representatives, on a mutually agreeable basis. The primary purpose of such meetings will be to exchange information regarding current work problems, to discuss expected changes in civilian personnel policies or regulations, and to consult as necessary on matters covered by this Agreement. SECTION 2. The Employer agrees to recognize the Officers of the Union and a reasonable numbers (sic) of Stewards as required. The Union agrees that Shop Stewards and Chief Stewards will be selected who possess qualities of leadership and responsibility and who will deal with employees and Management in a manner that will inspire confidence and respect. SECTION 3. The Union will designate stewards so that each employee in the Unit will have reasonable access to a steward and shall supply the Civilian Personnel Office in writing, on a current basis, a complete list of all Union Officers, Representatives, and Stewards together with the organizational area and location where each such representative and steward has been assigned. SECTION 4. Each steward will normally restrict his union activities to his assigned work area or organizational location in which he is appointed to serve. Time used by stewards during duty hours in the performance of their steward duties will be with the prior knowledge and permission of the steward's immediate supervisor and shall be limited to the extent necessary to preclude undue interference with assigned essential duties. During such granted absence, the steward will confine his activities to the conduct of that business for which approval of absence was granted, return directly to his work area upon completion of the business at hand, and personally notify his appropriate supervisor of his return to duty. In the event the steward's official business cannot be concluded within the approved time of absence, he may contact his immediate supervisor and request additional time and be governed accordingly. Supervisors will grant a steward's request for an absence for representational purposes unless such absence would cause an undue interruption of work or jeopardize the operation of the work unit. If a specific request is denied, the steward and supervisor will seek mutual agreement on an alternate time for absence. The steward and supervisor will take reasonable action to prevent missing any deadline imposed by law, regulations, or provision of this Agreement. On December 3, 1980, the Union advised Respondent that pursuant to Article VI, section 2 of the negotiated agreement, it was appointing Mr. Eugene P. Reed as Steward for Handicapped Employees. Respondent replied on December 9, 1980 stating it would not recognize the designation of Mr. Reed, due to its position against recognizing Stewards-at-large. By letter dated January 19, 1981, the Union advised the Respondent that it had designated Mr. Reed as the Shop Steward for Engine Rebuild Shop, Building 2-3614, and that as of December 3, 1980, Mr. Reed was also appointed, pursuant to Article VI, sections 1 and 2 of the parties' agreement, the Union Representative Specializing in Problems Concerning Handicapped Employees on the Installation. In a written response dated January 30, 1981, the Respondent acceded to the appointment of Mr. Reed as Shop Steward but refused to recognize Mr. Reed as the Union's Representative Specializing in Problems Concerning Handicapped Employees on the Installation reiterating its position on Stewards-at-large. On or about February 18, 1981, Mr. Reed was terminated from his employment with Respondent. Thereafter, on or about March 31, 1981, the Respondent on two separate occasions, through its representative Charles M. Hill and Jerry W. Holstad, verbally refused to recognize Mr. Reed as the steward of the Union on the grounds that Mr. Reed was terminated from his employment with the Respondent. The amended consolidated complaint alleges that the Respondent's failure and refusal to recognize Mr. Reed as the Union's designated representative on January 30, 1981, and as the Union's designated representative and steward on March 31, 1981 and April 14, 1981, constitutes a violation of section 7116(a)(1) and (5) of the Statute. /1/ More specifically, it alleges that such conduct constitutes a clear and patent breach of Article VI, section 1 through 3 of the parties' negotiated agreement in violation of section 7116(a)(1) and (5) of the Statute; a failure to bargain in good faith with the Union in violation of section 7116(a)(1) and (5) of the Statute; and interference with employee rights in violation of section 7116(a)(1) of the Statute. In American Federation of Government Employees, AFL-CIO, 4 FLRA 272 (1980), the Authority determined that it is within the discretion of labor organizations holding exclusive recognition to designate their representatives when fulfilling their responsibilities under the Statute. Furthermore, an agency violates section 7116(a)(5) of the Statute when it refuses to deal with the particular individuals selected by the exclusive representative of a bargaining unit of its employees for negotiation, and also thereby violates section 7116(a)(1) of the Statute inasmuch as its action interferes with the rights of employees as set forth in section 7102 of the Statute. See Department of the Air Force, 915th Tactical Fighter Group, Homestead Air Force Base, Florida, 13 FLRA No. 33 (1983). Respondent contends that it was not obligated to recognize Mr. Reed based upon its interpretation of Article VI of the collective bargaining agreement. However, the Authority concludes that Article VI contains no clear and unmistakable waiver of the Union's statutory right to choose its own stewards or representatives or any restriction requiring those selected to be employees of the Respondent. Absent such a clear and unmistakable waiver, a party will not be deemed to have given up a statutory right, such as a union's right to designate its representatives and stewards involved herein. Social Security Administration, 13 FLRA No. 69 (1983); Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981). Accordingly, in the instant case, the Authority finds that the Respondent was obligated to recognize the Union's designation of Mr. Reed as its representative and steward and that its failure to do so on January 30, 1981 and March 31, 1981, constitutes both a failure to bargain in good faith in violation of section 7116(a)(1) and (5) of the Statute and an interference with the employees' collective bargaining rights in violation of section 7116(a)(1) of the Statute. /2/ ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the Authority hereby orders that the Department of the Defense, Department of Army, Headquarters, XVIII Airborne Corps, and Fort Bragg shall: 1. Cease and desist from: (a) Failing and refusing to recognize Eugene P. Reed as the designated representative and/or steward of the American Federation of Government Employees, Local 1770, AFL-CIO, the employees' exclusive representative. (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) Recognize Eugene P. Reed as the designated representative and/or steward of the American Federation of Government Employees, Local 1770, AFL-CIO, the employees' exclusive representative. (b) Post at its Fort Bragg, North Carolina 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., August 29, 1984 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 fail and refuse to recognize Eugene P. Reed as the designated representative and/or steward of the American Federation of Government Employees, Local 1770, AFL-CIO, our employees' exclusive representative. 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 recognize Eugene P. Reed as the designated representative and/or steward of the American Federation of Government Employees, Local 1770, AFL-CIO, our employees' exclusive representative. Activity By: (Signature) (Title) Dated: . . . 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 IV, Federal Labor Relations Authority, whose address is: 1776 Peachtree Street, NW., Suite 501, North Wing, Atlanta, GA 30309 and whose telephone number is: (404) 881-2324. --------------- FOOTNOTES$ --------------- /1/ Although the complaint alleges a violation on April 14, 1981, the record contains no evidence to support this allegation. Therefore, the Authority hereby dismisses that portion of the complaint concerning the events of April 14, 1981. /2/ In view of the foregoing conclusion, the Authority finds it unnecessary to reach or pass upon whether Respondent's action also constituted a clear and patent breach of the parties' agreement and an unfair labor practice under the Statute. But see Federal Aviation Administration, Alaskan Regional Office, 7 FLRA 164 (1982). See also United States Department of Defense, Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 8 FLRA 740 n. 5 (1982), enforced, No. 83-1969 (D.C. Cir. June 1, 1984).