15:0790(150)CA - DOD, Army, HQ, XVIII Airborne Corps, and Fort Bragg and AFGE Local 1770 -- 1984 FLRAdec CA
[ v15 p790 ]
15:0790(150)CA
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).