17:0823(111)CA - DOD, Air Force, Armament Division, AFSC, Eglin AFB, FL and AFGE Local 1817 -- 1985 FLRAdec CA
[ v17 p823 ]
The decision of the Authority follows:
17 FLRA No. 111 DEPARTMENT OF DEFENSE DEPARTMENT OF THE AIR FORCE ARMAMENT DIVISION, AFSC EGLIN AIR FORCE BASE, FLORIDA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1817 Charging Party Case No. 4-CA-20117 DECISION AND ORDER The Administrative Law Judge issued the attached 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 the Respondent 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-20117 be, and it hereby is, dismissed. Issued, Washington, D.C., May 8, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Major Wade B. Morrison For the Respondent Thomas H. Newberry For the Charging Party Regina N. Kane, 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 Regional Director of the Fourth Region of the Federal Labor Relations Authority by the issuance of a Complaint and Notice of Hearing dated February 23, 1983. The Complaint was issued following an investigation of an unfair labor practice charge filed on December 19, 1981, by American Federation of Government Employees, AFL-CIO, Local 1897, herein referred to as AFGE, Union or Charging Party. The Complaint alleges that Department of Defense, Department of the Air Force, Armament Division, AFSC, Eglin Air Force Base, herein called Respondent or Employer, has violated sections 7116(a)(1) and (6) of the Statute by refusing to comply with a Decision and Order of the Federal Service Impasses Panel, herein FSIP. Respondent denies any violation of the Statute. A hearing was held at Eglin Air Force Base, Florida on March 6, 1984, 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. Upon consideration of the entire record 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 1. Respondent is an agency within the meaning of section 7103(a)(3) of the Statute. Douglas M. Johnson is a supervisor and/or a management official within the meaning of section 7103(a)(10) and (11) of the Statute and an agent of Respondent. 2. The Union is a labor organization within the meaning of section 7103(a)(6) of the Statute and, since on or about April 14, 1975, has been and is the exclusive representative of an appropriate unit of employees at Eglin Fir Force Base. A collective bargaining agreement signed March 6, 1975 and approved April 14, 1975 had, by its terms (Article 30), a duration of three years from the date it was signed. (G.C. Exh. No. 23). On August 26, 1981, the terms of the agreement were extended until the effective date of any new Memorandum of Agreement (G.C. Exh. No. 2). 3. Air Force Regulations 215-11 (G.C. Exh. No. 3) directs that Noncommissioned Officer's (NCO) Clubs will be membership clubs and that membership checks will be conducted periodically to enforce membership rules. Respondent admits that lax enforcement of this regulation during the noon meal by club management resulted in a practice prior to January 1981, whereby nonmembers were permitted to eat their noon meal at the club. 4. Included among the nonmembers using the club during the noon meal were bargaining unit employees represented by AFGE, the Charging Party herein, as well as employees in another unit represented by National Federation of Federal Employees, Local 1940, herein NFFE. 5. In January 1981, club management announced that it planned to begin strict enforcement of its membership rules by increasing the frequency of membership checks. In response, NFFE, on January 12, 1981, requested to bargain about the impact and implementation of the change. The following day, the Charging Party, also submitted a similar request to bargain. The Charging Party's proposal was "that the decision to require all eligible Unit Employees to join and pay dues at the NCO and Officers' Clubs for the privilege of using the facility during the lunch hour be suspended until an adequate facility, namely the proposed Base Exchange Restaurant, be completed which will provide Unit Employees an alternative to being forced to become members of said Clubs just to be able to have a suitable place to eat lunch on base". Discussions ensued between management and the unions, with the sticking point being how long management would allow non-members to eat lunch in the clubs without being members or meeting membership criteria (R. Exh. 2-10, G.C. Exh. 5). 6. Following impasse NFFE requested FSIP assistance by letter dated March 9, 1981 (G.C. Exh. 6). By letter dated March 19, 1981, AFGE also requested FSIP assistance (G.C. Exh. 7). AFGE's request for FSIP assistance was virtually identical with that submitted 10 days earlier by NFFE. AFGE advised the Panel in its March 19, 1981 submission that "the dispute is over when the change will be implemented." The "change" was further set forth as being that previously, "unit members had access on base to hot, cafeteria-style noontime meals through the facilities of the Eglin Officers' and Noncommissioned Officers' (NCO) Clubs" and that they were allowed access "without restriction in that employees using these facilities were not required to be either members or bona fide guests of members of these clubs." They further stated that one of their primary concerns was that "many of the unit members of are not eligible to join the NCO Club because of their GS and WB grade level. For these employees, the change effectively bars them from the noontime service even if they are willing to pay the monthly membership fee" (G.C. Exh. 7). By letter dated April 2, 1981, FSIP directed NFFE and management to submit their respective positions and proposals by April 13, 1981 and their rebuttal briefs by April 20, 1981 (G.C. Exh. 8). NFFE's proposal was that "management reinstate the long standing past practice, recently discontinued, which allowed unit members to eat lunch at the Eglin Noncommissioned Officers' (NCO) Club without condition of membership in the club. Such a club is to remain open and provide adequate feeding facilities to all unit members regardless of their club membership status or eligibility until such time as an adequate appropriated fund cafetaria is made available to our unit members" (G.C. Exh. 9). Additionally, NFFE attached its March 9, 1981 submission as further explanation of its position. As noted above, that document advised FSIP that "the dispute is over when the change will be implemented" and identified the change as no longer permitting bargaining unit employees to eat lunch at the clubs irrespective of their membership status (G.C. Exh. 9). Both parties later submitted rebuttal briefs in accordance with FSIP's direction, further arguing the merits of their positions (Resp. Exh. 12 and 13). On April 23, 1981, FSIP notified AFGE and management that their previously submitted statements of position (G.C. Exh. 7 for AFGE; G.C. Exh. 10 for management) would constitute their initial submission and that rebuttal briefs were to be submitted by May 1, 1981. Both parties submitted rebuttal briefs (G.C. Exh. 12 and 13). 7. Thereafter, FSIP joined the two cases and issued a decision on June 9, 1981, ordering that the unions' (plural) proposal be adopted (G.C. Exh. 14). In its decision, FSIP stated that the issue before it was whether implementation of the Employers's decision concerning unit employees' lunchtime use of the NCO Club should be suspended until a new cafeteria was built and in service. /1/ In its decision, FSIP set forth the "parties" proposals as follows: Both Unions propose that the decision to close the NCO Club to nonmembers be rescinded and implementation deferred until a new cafeteria has been opened (which is scheduled to take place in October 1982). The Employer proposes that membership requirements remain in effect for both clubs. In its conclusion, FSIP stated as follows: Having considered the arguments and evidence, we conclude that the current eating arrangements, as reflected in the Employer's proposal, are unfair to those employees not eligible to join the NCO Club. In addition, the Employer has not shown any compelling reasons why the past practice must be changed at this time. The Union's proposal, on the other hand, would not preclude the Employer from acting but would merely delay implementation of its decision with regard to NCO Club privileges until the cafeteria is in service. For all of these reasons, the Union's proposal provides a more reasonable basis for the resolution of this dispute. 8. On July 10, 1981, management sent a letter to each union specifying how it intended to comply with FSIP's order (G.C. Exh. 15, Resp. Exh. 11). Specifically, the Respondent proposed to grant temporary civilian membership privileges to any member of the Union's bargaining unit who was not currently eligible for membership (grades GS-10 or equivalent and above). Further, Respondent proposed that each individual who applied for temporary membership would be issued an identification card and would be assured the normal membership fee of four dollars per month. NFFE concurred with the proposed action (Resp. Exh. 11), while AFGE rejected it G.C. Exh. 16). On July 22, 1981, management asked FSIP to clarify its Decision and Order (G.C. Exh. 17). By supplemental decision dated September 18, 1981, FSIP stated that management's proposed action did not comply with its earlier decision (G.C. Exh. 19). FSIP also advised the Respondent that "unless the parties agree otherwise-- as the Employer and Local 1940 have done-- the specific language of the Panel's Order is binding on the parties during the term of the agreement pursuant to Section 7119(c)(5)(c) of the . . . Statute . . . ." 9. By letter dated October 22, 1981, management advised AFGE that it intended to comply with FSIP's Order by waiving its NCO Club membership eligibility and dues requirements for the noon meal until the Base Exchange cafeteria opened. It further proposed to issue "lunch cards" to facilitate entry of non-members eligible to eat lunch pursuant to FSIP's Order. A one-time administrative fee of $1.00 was to be charged for the lunch card (G.C. Exh. 20). By letter dated October 26, 1981, AFGE advised management that its proposed action was unacceptable in that "it imposes changes in the Past Practice" and it failed to provide for three separate notices in the Eglin Bulletin (G.C. Exh. 21). Neither party sought a determination from FSIP as to whether Respondent's proposal constituted compliance. However, on November 18, 1981, Respondent notified the union that it was dropping the $1.00 administrative fee requirement and would publish the notice in three issues of the Eglin Bulletin (G.C. Exh. 22). The lunch passes (Resp. Exh. 14(b)) were issued to AFGE employees as they entered the NCO Club for lunch, or were issued during business hours in the Club's administrative office. They were issued for an indefinite period and were used to facilitate identification of those entitled to eat lunch at the NCO Club pursuant to FSIP's Order. Issuance of the passes usually took less than a minute. No administrative fee was ever charged for one of these passes. Discussion and Conclusions of Law Section 7116(a)(1) of the Statute makes it an unfair labor practice for an agency to "interfere with, restrain, or coerce" any employee in the exercise of that employee's rights under that Statute. Section 7116(a)(6) makes it an unfair labor practice for any agency to fail or refuse to cooperate in impasse procedures and decisions of the FSIP. It is well established that a refusal to comply with a final order of the FSIP constitutes a violation of Sections 7116(a)(1) and (6) of the Statute. Michigan Army National Guard, Lansing, Michigan, 11 FLRA No. 4 (1983); Florida National Guard, 9 FLRA No. 41 (1982); National Guard Bureau, Marine Air National Guard, Augusta, Maine, 10 FLRA No. 101 (1982). The FSIP Decision and Order which is the subject of this controversy was dated June 19, 1981. As noted above, FSIP ordered Respondent to adopt the Union proposal which FSIP itself characterized as follows: ". . . that the decision to close the NCO Club to nonmembers be rescinded and implementation be deferred until a new cafeteria has been opened . . . ." My review of the FSIP decision and record upon which it was based /2/ leads me to conclude that the focus of FSIP's concern was the fact that Respondent's proposed change would effectively bar some AFGE (and NFFE) unit members from eating at the NCO Club as in the past. Thus, FSIP specifically noted that the Employer's proposal was "unfair to those employees not eligible to join the NCO Club". I find nothing in FSIP's decision to indicate any concern-- one way or the other-- with the right of Respondent to enforce its regulations with respect to persons other than AFGE (and NFFE) unit members who were being adversely affected by the decision to institute more frequent membership checks and thereby exclude nonmembers. With a record showing that a new cafeteria was scheduled for completion in October 1982, about 16 months later, FSIP simply observed no compelling reason for Respondent to change its "past practice." FSIP's unfortunate use of the term "past practice" has apparently caused the General Counsel to misinterpret FSIP's decision as requiring Respondent not to change the status quo as existed prior thereto. Thus, the General Counsel contends that Respondents "went beyond the parameters of the June 9, 1981 FSIP Decision and Order, as clarified on September 18, 1981, by imposing conditions other than what has been the established past practice . . . ." Further, the General Counsel contends that the issuance of yellow cards or lunch passes to AFGE unit members does not by any "stretch of the imagination" constitute compliance with the "strict terms" of FSIP's decision. I do not interpret FSIP's decision in the same manner as the General Counsel. I conclude that FSIP's use of the term "past practice" was only intended to refer to the practice of not enforcing the requirement of membership. The vice of Respondent's original proposed compliance was that it was requiring temporary membership, in contrast to the past, and even though eligibility requirements were waived. I believe this is why FSIP rejected Respondent's proposal. Respondent's second proposed compliance involving a $1.00 administrative fee was rejected by AFGE, not implemented by Respondent, not appealed to FSIP, and not specifically referred to in the charge or the complaint. In these circumstances, I find it unnecessary to speculate on whether imposition of $1.00 administrative fee, even if implemented by Respondent, would have constituted compliance. /3/ Respondent's third proposal-- the only one really implemented for all practical purposes-- was the issuance of yellow cards or lunch passes, which cost nothing. While it is true that these were not required before, I do not find that this requirement was barred by FSIP's decisions. To conclude that FSIP intended to bar any change, especially one as trivial as this one, is to read too much into FSIP's decisions. To also conclude that FSIP intended to bar the Respondent from enforcing its regulations vis-a-vis persons other than AFGE unit employees, is to presume that FSIP's jurisdiction over the instant dispute extends to the conditions of employment of persons who are not members of AFGE's appropriate unit (See Resp. brief pp. 9-11). In the circumstances of this case, I am reluctant to conclude that compliance with FSIP's decision required Respondent to do anything more than rescind their proposed decision requiring membership in the NCO Club and continue to permit AFGE unit members to use the Club at the noon meal, until the new cafeteria was completed. The issuance of yellow lunch cards does not constitute a "restriction", as suggested by the General Counsel, because it neither prevents an AFGE unit member from eating at the Club nor does it result in any out-of-pocket costs. /4/ Rather, the issuance of yellow cards or passes to AFGE unit members merely served as a simple and expeditious method of identifying them as persons who are permitted to eat at the club notwithstanding their nonmembership. As a result, only persons with membership cards or yellow lunch cards could eat at the club and all others could be excluded. I find that this was a reasonable accommodation on Respondent's part and constituted compliance with FSIP's decision. /5/ Accordingly, I do not find a violation of Section 7116(a)(1) and (6) of the Statute and it is recommended that the Authority issue the following: ORDER That the Complaint in Case No. 4-CA-20117 be, and it hereby is, dismissed. /6/ FRANCIS E. DOWD Administrative Law Judge Dated: July 12, 1984 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ The parties stipulated at the hearing that the cafeteria contemplated in FSIPS decision has been built and is in service. /2/ In my opinion, I need only review the same record FSIP had before it so that I can decide what FSIP intended by its decision which I am being asked to interpret. I do not believe it is necessary for me, in the circumstances of this case, to go outside that record in order to determine what the past practice was prior to the dispute which went to FSIP for decision. For this reason, I believe that all I need to know is what FSIP thought the past practice was on the basis of the submissions of the parties to FSIP. Accordingly, the testimony of General Counsel's witnesses as to "past practice" was irrelevant; a hearing was not necessary; and this record should have been stipulated, either to me or directly to the Authority. The testimony of General Counsel's witnesses was not only irrelevant, but it was not helpful in resolving the issues posed herein. /3/ Respondent's first and second proposed compliance were not alleged in the charge but even if they were so alleged, I would find that neither were implemented after their rejection by AFGE. Moreover, FSIP itself already ruled on the first proposal when it issued its clarification decision-- a decision which was obviously necessary. /4/ The General Counsel has not established by a preponderance of the evidence that the Union ever proposed to Respondent, as alleged in paragraph 7(d) of the complaint "in substance that the past practice of permitting unlimited and unrestricted access to the noncommissioned officers' club without the use of passes or imposition of fees be continued until the completion of the construction of a Base Exchange restaurant." /5/ In view of my decision in this basis, I find it unnecessary to pass upon Respondent's other defense that FSIP's decision is only binding on the parties during the term of a collective bargaining agreement unless the parties agree otherwise. The parties stipulated that there was no agreement in force at the time FSIP issued its decision, there being a hiatus between the expiration date of March 6, 1981 and a Memorandum of Agreement dated August 26, 1981. /6/ I am constrained to note that the Union could itself have sought clarification from FSIP on the issue of the yellow lunch passes instead of choosing to litigate as an unfair labor practice what essentially is a matter of interpretation. A more simple and expeditious route would have been to ask FSIP to clarify its own decision. In my opinion, the Union's resort to the unfair labor practice procedure of the Statute was premature and the General Counsel should have held the charge in obeyance until FSIP had an opportunity to interpret its own decision. See Chief Judge John H. Fenton's discussion of this issue in Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 13 FLRA No. 95, 13 FLRA 571, a decision adopted by the Authority on January 6, 1984.