[ v22 p171 ]
22:0171(18)CA
The decision of the Authority follows:
22 FLRA No. 18
Case Nos. 7-CA-30459
7-CA-30584
UNITED STATES AIR FORCE
LOWRY AIR FORCE BASE
DENVER, COLORADO
Respondent
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1497
Charging Party
Case No. 7-CA-30543
UNITED STATES AIR FORCE
LOWRY AIR FORCE BASE
DENVER, COLORADO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1974
Charging Party
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the General Counsel to the attached Decision of the
Administrative Law Judge. The Respondent filed an opposition to the
General Counsel's exceptions. The consolidated complaint in this case
alleged a violation of section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute (the Statute) (1) on June 15, 1983
when the Respondent issued a memorandum setting forth a new seat belt
policy; (2) on July 1, 1983 when the Respondent issued a memorandum
changing the delegation of authority to suspend employee driving
privileges; and (3) on September 26, 1983 when the Respondent
implemented certain procedures concerning the new seat belt policy.
II. Facts
The facts are fully set forth in the Judge's Decision. Briefly
stated, the essential facts giving rise to the consolidated complaint
are as follows:
The Respondent notified the Charging Parties (Unions) on June 10,
1983, that beginning on June 15, employees who failed to wear available
seat belts while driving privately owned vehicles (POVs) on Lowry Air
Force Base would receive a 30-day suspension of driving privileges and
that the driver of any POV would be subject to a 30-day suspension of
driving privileges if any passenger failed to wear a seat belt. Prior
to this announced change, employees who failed to wear seat belts did
not receive mandatory suspensions until the third infraction. On June
14, the Unions submitted requests to the Respondent to negotiate as soon
as possible but no later than June 21, 1983. Negotiations commenced on
June 21, and also took place on June 28 and several days in July and
September. The record reveals that implementation of the new seat belt
policy was delayed insofar as bargaining unit employees were concerned
until after negotiations were completed. Once negotiations began, the
Respondent issued a memorandum on July 1, announcing that senior
officers in each of Respondent's commands had been granted the authority
to suspend employee driving privileges. Prior to this change, the
authority to suspend seat belt violators was at the Base Commander or
Deputy Commander level.
The parties failed to reach agreement during the June and July
negotiations with Respondent declaring certain of the Unions' proposals
to be nonnegotiable. They later sought help from the Federal Mediation
and Conciliation Service (FMCS). Thereafter, the parties entered into
negotiations with the assistance of FMCS in September 1983. The parties
agreed on a number of matters on September 15, 1983, but some issues
remained unresolved. Thereafter, on September 20, the Respondent
notified the Unions that it would implement its last best offer
concerning the seat belt policy on September 26, 1983.
III. Judge's Decision
The Judge concluded, in Case No. 7-CA-30459, that the Respondent had
not failed to meet its statutory bargaining obligation prior to June 15,
1983, but rather that evidence established a waiver by the Union of the
right to bargain prior to June 15. The Judge further concluded that the
new seat belt policy was not applied to bargaining unit employees on
June 15, 1983, but was deferred pursuant to agreement of the parties.
As to the July 1 change in delegation of authority to suspend driving
privileges, the Judge concluded that the Respondent had deferred
implementation of the new seat belt policy and there was no evidentiary
basis for finding that Respondent implemented the July 1 delegation as
alleged in the complaint.
The Judge concluded in Case Nos. 7-CA-30584 and 7-CA-30543 that the
Respondent did not act unlawfully when it implemented the new seat belt
policy on September 26. In this regard the Judge found that Respondent
had bargained to impasse on all issues relating to the September 26
implementation of the policy and that the Unions did not request Panel
assistance until after Respondent had served notice and implemented its
last best offer.
In view of the above, the Judge recommended that the consolidated
complaint be dismissed in its entirety.
IV. Positions of the Parties
The General Counsel filed a number of exceptions to the Judge's
findings and conclusions. In particular the General Counsel disputed
the factual determinations that Respondent did not implement the new
seat belt policies on June 15, 1983, and did not implement delegation of
the suspension/appeal authority for seat belt violations on July 1,
1983, and that bargaining unit employees suffered no adverse impact from
the July 1 change. Additionally, the General Counsel excepted to the
conlcusion that NFFE waived its right to pre-implementation bargaining
over the June 15 seat belt policy; that Respondent bargained in good
faith to impasse before implementing the new seat belt policies on
September 26, 1983; and that the policies implemented on September 26,
1983 were Respondent's last best offers.
In its opposition to the General Counsel's exceptions the Respondent
argued that no evidence supported the General Counsel's theory that
Respondent implemented the new seat belt policies on June 15, 1983;
that record evidence supported the conclusion that Respondent did not
implement the delegation of the suspension/appeal authority for seat
belt violations on July 1, 1983; and that there was no evidence of
adverse impact on bargaining unit employees based on the July 1 change.
Further, the Respondent argued that the Judge correctly determined that
NFFE waived its right to pre-implementation bargaining; that Respondent
bargained in good faith to impasse before implementing the new seat belt
policies; and that the Respondent acted in good faith in implementing
the change in seat belt policy on September 26, 1983.
V. Analysis
In concluding that the Respondent did not violate section 7116(a)(1)
and (5) of the Statute, the Authority finds, in agreement with the
Judge, that the parties engaged in good faith negotiations concerning
the change in the seat belt policy. The record establishes that the
Respondent notified the Unions that it was going to implement a change
in the seat belt policy on June 15, 1983. Thereafter, the Unions
requested negotiations and bargained on all negotiable aspects of the
change. Although bargaining did not take place until after June 15, the
record is clear that the new policy was not put into effect for unit
employees until after the completion of negotiations. /*/
Furthermore, the Authority finds that the proposals over which the
Respondent refused to bargain prior to implementing its change in seat
belt policy were nonnegotiable as the Respondent contended. Three of
the Unions' proposals would restrict the disciplinary actions which
agency management could take and would limit management's right to
discipline employees within the meaning of section 7106(a)(2)(A) of the
Statute. See American Federation of Government Employees, AFL-CIO,
Local 2302 and U.S. Army Armor Center and Fort Knox, Fort Knox,
Kentucky, 19 FLRA No. 95 (1985) (union proposal 1). The Authority finds
that another proposal dealing with appeals of suspensions by
non-bargaining unit employees is also outside the duty to bargain, as it
is well established that the duty to bargain does not extend to matters
concerning positions and employees outside the bargaining unit.
International Federation of Professional and Technical Engineers,
AFL-CIO, NASA Headquarters Professional Association and National
Aeronautics and Space Administration, Headquarters, Washington, D.C., 8
FLRA 212 (1982), and cases cited at note 5 of that decision. Finally,
the Authority finds that the Unions' proposal dealing with paying
employees for the time it takes them to transit between the Activity
entrance and their actual job site at the start and end of the work day
is nonnegotiable. This proposal would result in management being
precluded from assigning duties during those portions of the work day
during which employees were in transit between the Activity and the job
site. Thus, the proposal would violate management's right to assign
work under section 7106(a)(2)(B) of the Statute. National Association
of Government Employees, Local R-12-33 and National Association of
Federal Employees, Local 1374 and Pacific Missile Test Center, Point
Mugu, California, 14 FLRA 275 (1984). Thus the Authority finds that the
Respondent complied with its duty to negotiate and negotiated in good
faith with regard to all proposals submitted by the Unions which were
within its duty to bargain.
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and thus affirms those rulings. The Authority has considered
the Judge's Decision, the exceptions to that Decision, the positions of
the parties and the entire record, and adopts the Judge's findings,
conclusions and recommended Order except as noted in the footnote. We
therefore conclude that Respondent did not violate section 7116(a)(1)
and (5) of the Statute by refusing to bargain over changes in the
Respondent's seat belt policy. Rather the Authority finds that the
parties engaged in good faith negotiations with regard to all negotiable
proposals concerning the change in the seat belt policy. Accordingly
the complaint shall be dismissed in its entirety.
ORDER
IT IS ORDERED that the consolidated complaint in Case Nos.
7-CA-30459, 7-CA-30584 and 7-CA-30543 be, and it hereby is, dismissed.
Issued, Washington, D.C., June 18, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case Nos. 7-CA-30459 and 7-CA-30584
UNITED STATES AIR FORCE LOWRY AIR FORCE BASE DENVER,
COLORADO
Respondent
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1497
Charging Party
Case No. 7-CA-30543
UNITED STATES AIR FORCE LOWRY AIR FORCE BASE, DENVER,
COLORADO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
1974
Charging Party
Lt. Col. Wade B. Morrison, USAF
For the Respondent
Joseph Swerdzewski, Esquire
Daniel Minahan, Esquire
For the General Counsel
Ms. Joyce Coxson
For the National Federation of Federal Employees, Local 1497
Mr. Daniel Case
For the American Federation of Government
Employees, AFL-CIO, Local 1974
Before: LOUIS SCALZO
Administrative Law Judge
DECISION
Statement of the Case
These cases arose as unfair labor practice proceedings under the
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. section 7101, et seq. (hereinafter referred to as
"the Statute"), and the Rules and Regulations issued thereunder.
The consolidated complaint, as amended at the hearing, alleged that
Lowry Air Force Base (Respondent or LAFB) committed the following unfair
labor practices within the purview of the Statute:
Case No. 7-CA-30459
On or about June 15, 1983, the Respondent violated Sections
7116(a)(1) and (5) of the Statute by issuing to all personnel at LAFB, a
memorandum announcing that failure to wear available seat belts in
privately owned vehicles (POVs) operated on LAFB would result in a 30
day suspension of driving privileges, and that the driver of any POV
would be subject to a 30 day suspension of driving privileges if any
passenger failed to wear seat belts.
On or about July 1, 1983, the Respondent violated Sections 7116(a)(1)
and (5) of the Statute by issuing to all units and activities a
memorandum announcing that senior officers in each of Respondent's
commands had been granted the authority to suspend employee driving
privileges.
It was alleged that the June 15, 1983 and July 1, 1983 memorandums
constituted unilateral changes in conditions of employment of bargaining
unit employees represented by the National Federation of Federal
Employees (NFFE) Local 1497; a failure to provide NFFE Local 1497
notice of such change; a failure to bargain in good faith; /1/ and
interference, restraint and coercion of such employees in the exercise
of rights guaranteed by the Statute.
Case No. 7-CA-30584
On or about September 26, 1983, the Respondent violated Sections
7116(a)(1) and (5) of the Statute by implementing certain procedures and
arrangements concerning the enforcement of policy requiring drivers and
passengers to wear seat belts in POVs operated on LAFB. It was alleged
that the September 26, 1983 implementation constituted unilateral
changes in conditions of employment of bargaining unit employees
represented by NFFE Local 1497, and interference, restraint and coercion
of such employees in the exercise of rights guaranteed by the Statute.
Case No. 7-CA-30543
On or about September 26, 1983, the Respondent violated Sections
7116(a)(1) and (5) of the Statute by implementing certain procedures and
arrangements concerning the enforcement of policy requiring drivers and
passengers to wear seat belts in POVs operated on LAFB. It was alleged
that the September 26, 1983, implementation constituted unilateral
changes in conditions of employment of bargaining unit employees
represented by the American Federation of Government Employees, AFL-CIO
(AFGE), Local 1974, and interference, restraint and coercion of such
employees in the exercise of rights guaranteed by the Statute. /2/
The parties were represented by counsel during the hearing and were
afforded full opportunity to be heard, adduce relevant evidence, and
examine and cross-examine witnesses. Based upon the entire record
herein, including exhibits, and other relevant evidence adduced at the
hearing, /3/ and briefs filed by counsel representing the Respondent and
General Counsel, I make the following findings of fact, conclusions and
recommendations.
Findings of Fact
Notice of Changes Relating to Seat Belt Policy
By memorandum dated June 10, 1983, Darvin H. Koehler, Respondent's
Civilian Personnel Officer, advised Joyce Coxson, President of NFFE,
Local 1497, that on June 15, 1983, the Respondent intended to begin
strict enforcement of Air Force regulations relating to seat belt use in
POVs operated on LAFB by military personnel, dependents and civilian
personnel (Tr. 57; G.C. Exh. No. 10). Although dated June 10, 1983,
the memorandum was personally delivered to Ms. Coxson on June 9, 1983
(Tr. 57-58). /4/ It announced that the new policy would involve a 30
day suspension of LAFB driving privileges for a first offense; that
vehicle drivers would be subject to the 30 day suspension rule for a
first offense if any passenger in a vehicle failed to wear a seat belt;
and that suspended drivers would be allowed to drive their cars on LAFB
only to the extent of parking their cars in a designated parking area
situated near a LAFB entrance gate.
Department of Air Force Regulation 127-7, dated June 3, 1980 required
the wearing of seat belts. The following general language formed the
basis of this requirement:
. . .All military personnel and civilians operating or riding
in private motor vehicles of a DOD installation will wear seat
belts if available. (G.C. Exh. No. 4 at page 2).
This rule had not been strictly enforced. Those found in violation
of the seat belt rule during random checks by security personnel were
not issued citations directly. Their names were recorded by security
personnel and they were informed of their failure to comply. They were
then advised that their names would be forwarded to their commanders for
appropriate action. This procedure was followed for the first two
infractions of the rule, and after the third offense those found to be
in violation were supposed to receive a mandatory suspension of driving
privileges. However, the record reflected that the mandatory suspension
rule was not followed by the Respondent. It was acknowledged that a
repeated failure to wear seat belts could have led to formal discipline;
however, records of seat belt violations were not included in employee
personnel files.
On June 14, 1983, the day preceding the proposed implementation, Ms.
Coxson, on behalf of NFFE, Local 1497, delivered a request to negotiate
concerning the proposed change "as soon as possible, but not later than
21 June 1983." (G.C. Exh. No. 11). The request noted an awareness of
the duty to bargain prior to implementation, but did not specifically
request a delay in implementation. /5/ Ms. Coxson's testimony
established that despite the impending proposed implementation date she
and a labor relations specialist representing the Respondent agreed to
negotiate "as requested" on June 21, 1983, or six days after the
proposed implementation date (Tr. 59-60).
The "last minute" filing of the request to negotiate on the day
preceding proposed implementation; Ms. Coxson's unequivocal acceptance
of June 21, 1983, as the date to commence bargaining; and the fact that
negotiations actually commenced on June 21, 1983; all lead to the
factual finding that Ms. Coxson's June 14, 1983 bargaining request
conferred upon the Respondent the option to defer negotiations until
after June 15, 1983, the date proposed by Respondent for implementation
of the new seat belt policy.
The policy spelled out in the June 10, 1983 memorandum by Mr. Koehler
was in fact implemented on June 15, 1983, by the issuance of a
memorandum dated June 15, addressed to LAFB personnel by Colonel Leslie
A. Hobgood, Base Commander, LAFB (G.C. Exh. No. 13). The memorandum
announced that the policy would be applicable to "both military
personnel/dependents and civilian personnel." However, the record is
clear that the term civilian personnel" was not construed by the parties
to include bargaining unit members represented by NFFE or other unions
recognized by the Respondent. That is, the parties agreed that
bargaining unit employees would not then be affected by the policy. The
unions were orally assured that bargaining unit members would not be
subjected to the new sanctions prior to completion of negotiations, and
further that the new policy would be imposed in a manner consistent with
Respondent's bargaining obligation.
As in the period prior to June 15, 1983, the names of those violating
seat belt policy were recorded; however, new policy relating to the
suspension of driving privileges was not effectuated with respect to
bargaining unit employees. The record clearly indicated that
implementation was withheld insofar as all bargaining unit employees
were concerned. /6/
The implementation of the new policy did result in an increase in the
number of random checks by security personnel to determine whether or
not drivers and passengers in POVs were wearing seat belts. However,
Counsel for the General Counsel acknowledged that this increase was not
relied upon as a basis for the complaint (Tr. 210-211). /7/ The record
revealed that the names of individuals were recorded on revised forms
not previously utilized by security personnel (G.C. Exh. No. 16).
However, the forms were not disseminated, or otherwise utilized as a
basis for action, and were used solely for the purpose of recording the
identity of those in violation of the rule. This minor administrative
change was not alleged as a basis for the complaint, and did not
otherwise alter the previously existing practice of recording the names
of those in violation of seat belt rules.
Negotiations Concerning Seat Belt Policy
The Respondent agreed to bargain concerning seat belt policy in
accordance with union reuqests (Tr. 125, 132-133). The negotiating
teams included representatives of LAFB, NFFE Local 1497, AFGE Local
1974, and AFGE Local 2040. NFFE Local 1497 was represented by Dr. Edgar
Smith. He also took a leading role on behalf of the AFGE Locals.
Dariel Case, President of AFGE Local 1974, also took a leading role on
behalf of the two AFGE Locals. LAFB was represented at the outset by
Colonel Donald W. Swain, Vice Commander, LAFB; and thereafter by
Colonel John A. Johnson, who replaced Colonel Swain.
On June 21, 1983, six days after issuance of Colonel Hobgood's June
15, 1983 memorandum to all LAFB Personnel, Ms. Coxson wrote to Mr.
Koehler on behalf of NFFE Local 1497, and outlined a series of issues
which she felt should form the basis of negotiations (G.C. Exh. No. 14).
This document reflects that, despite limited implementation with
respect to non-bargaining unit employees and others earlier in June, she
requested that any negotiations occur prior to implementaton. In view
of the agreement to negotiate on June 21, 1983, a date after the partial
implementation on June 15th, and in view of the agreement to exempt
bargaining unit employees, it may be concluded that this request was
merely a demand to continue deferral of implementation of policy with
respect to NFFE bargaining unit employees. The record reflects no
reason to conclude that the new penalty policy was effectuated so as to
affect them.
Negotiations actually commenced on June 21, 1983, and more serious
bargaining concerning the subject occurred on June 28, July 6, and July
15, 1983, prior to mediation. A total of about eight to twelve hours
was spent by the parties at these meetings. On June 27, 1983, Dr. Smith
submitted to management a list of additional subjects for negotiation
(G.C. Exh. No. 15). Thereafter, on either June 28 or July 6, 1983, the
three Locals participating in negotiations supplied a new consolidated
list of fifteen proposals to the LAFB negotiating team (G.C. Exh. No.
17).
By memorandum dated July 1, 1983, the Respondent through Colonel
Swain, then LAFB Vice Commander, reiterated the 30 day suspension rule
made applicable previously to all but bargaining unit members. He
assigned suspension/appeal authority to LAFB organizational commanders.
As a result of this change organizational commanders were assigned to
hear appeals arising from members of their own commands following
citation of such individuals for failure to wear seat belts (G.C. Exh.
No. 16). The authority was vested in officers with the rank of colonel
or higher. However, the record indicates that the delegation policy was
not then made applicable to bargaining unit employees because of the
exemption previously arranged for bargaining unit employees. Such
authority had in the past always been exercised at the Base Commander or
Deputy Commander level. /8/
Counsel representing the General Counsel argued that the delegation
of authority to organizational commanders was a change which affected
the terms and conditions of employement of bargaining unit members in
NFFE Local 1497. It was assumed that the policy would not be equitably
administered by the various commanders; and that the effectuation of
policy would be more consistent if suspensions were imposed at the Base
Commander level (Tr. 102). It was assumed, without evidentiary basis,
that organizational commanders would be much more strict in their
imposition of sentences (Tr. 188). However, as noted this segment of
the new seat belt enforcement policy was not implemented with respect to
any bargaining unit employee because of the agreement to defer all
enforcement actions until after completion of negotiations.
During negotiations on July 15, 1983, the Respondent introduced a
proposed "Seat Belt Policy Implementation Guidance" reflecting nine
counterproposals (G.C. Exh. No 19, Tr. 137). These were submitted in
response to those submitted jointly on behalf of the three Locals
participating in negotiations. They may be summarized as follows:
1. The designation of parking areas on LAFB for suspended
drivers.
2. Civilian employees found to be in violation of seat belt
rules since June 15, 1983, will serve a 30 day suspension not
earlier than August 15, 1983. /9/
3. Safety films will be available through the unit or union
safety official.
4. If a passenger is found without a seat belt, the driver of
the vehicle will receive a written warning for a first offense,
and a 30 day suspension for any subsequent offense.
5. The appeal authority in case of suspension will be
sufficiently removed from the employee to provide a fair and
equitable review. Revocation/appeal authority has been
established by letter dated July 1, 1983 addressed to all Lowry
Technical Training Center units by Colonel Swain (G.C. Exh. No.
16).
6. For the first and each subsequent offense a 30 day
suspension will be imposed.
7. Any person found driving on base while in a suspension
status will be subject to appropriate administrative action by
his/her supervisor.
8. Seat belt and shoulder harness restraint devices are to be
worn when installed in the vehicle.
9. If for medical reasons, one should not wear a restraint
device, the person should submit a medical waiver to his/her
supervisor.
By memorandum dated July 25, 1983, addressed to the three Locals,
Colonel Richard White, Deputy Base Commander explained Respondent's
position in support of the nine counterproposals offered on July 15,
1983, and also explained Respondent's reasons for rejecting a number of
the fifteen proposals previously submitted by the union Locals (G.C.
Exh. No. 20). Colonel White's letter noted that the Respondent rejected
union proposals numbered 3, 9, and 13 as an encroachment on management's
right to discipline under Section 7106(a)(2)(A) of the Statute.
Remaining proposals were either rejected, acceded to, or described as
having been addressed in Respondent's nine counterproposals.
On July 22, 1983, Dr. Smith, submitted seventeen final
counterproposals on behalf of NFFE and the two AFGE Locals (G.C. Exh.
No. 21). /10/ Representatives of the Respondent reviewed these, and on
August 18, 1983, Colonel Roger K. Taylor, Base Commander /11/ wrote to
Ms. Coxson, President of NFFE Local 1497, to advise that union
counterproposals numbered 1, 2, 3, 7, and 11 interfered with management
rights. Remaining counterproposals were either rejected or adopted.
Counterproposals 1, 2 and 3 were rejected as an interference with
management's right to take disciplinary action because they dealt with
penalties associated with noncompliance and/or the imposition of
responsibility for noncompliance. Union counterproposal 7, was
described as being outside management's obligation to bargain because it
was believed that the proposal would result in a violation of federal
law. Union counterproposal 11 was rejected because it interfered with
management's right to assign work.
In his August 18, 1983 letter, Colonel Taylor advised NFFE that
further impact and implementation negotiations would be nonproductive,
and that on August 22, 1983, he intended to implement proposals
reflecting areas of agreement, together with any other proposals
advanced by the Respondent on July 15, 1983. /12/ In this context
Colonel Taylor was referring to the Respondent's initial list of nine
counterproposals.
Mediation Requested
As early as July 13, 1983, AFGE Local 2040 wrote to the Federal
Mediation and Conciliation Service (FMCS) for the purpose of alerting
that agency to the possible need to assign a mediator to help resolve
issues involved in the negotiations (G.C. Exh. No. 18). AFGE Local 1974
contacted the FMCS between August 8 and 18, 1983, for the same purpose,
and on September 1, 1983, a representative of the Respondent sought the
services of the FMCS. By mutual agreement of the parties the FMCS
entered negotiations. Further intensive bargaining occurred on
September 9, 12, and 15, 1983, under the guidance of Thurman M. Sanders,
Commissioner, FMCS, Denver, Colorado. /13/ Ms. Coxson served as the
chief representative of NFFE during this phase of negotiations. Dariel
S. Case, President of AFGE Local 1974 continued to represent AFGE Local
1974.
The record established that all issues were negotiated during the
mediation phase (Tr. 145). During this phase the parties specifically
negotiated concerning the possibility of reducing the penalties for not
complying with the seat belt rule, but could not reach agreement. /14/
During the final mediation session on September 15, 1983, the parties
reached tentative agreement on a number of key issues, and initialed
their respective copies of a proposed tentative agreement to indicate
the specific issues resolved by the parties. The proposed tentative
agreement reflecting the intials of union representatives participating
in negotiations was subsequently transmitted to the participants in the
negotiations (G.C. Exh. No. 23). /15/ The proposed tentative agreement
was not adopted by the parties because of the failure to adopt all
elements of the document. However, the record shows that the parties
negotiated thoroughly with respect to all subject areas mentioned in the
tentative agreement proposed by the mediator (Tr. 71, 74, 143-144).
Items agreed to by the Respondent reflect significant concessions in a
number of instances. Out of a total of nine numbered paragraphs
reflecting nine issues, the parties reach agreement on all paragraphs
except the eight which provided for a written warning. /16/ It was
clear to the parties that the paragraphs agreed to refelcted the
Respondent's best offer relating to subjects covered therein (Tr. 198).
In addition to issues outlined in the proposed tentative agreement
the record also reflects that during mediation the parties negotiated
again concerning the question of retroactive enforcement of the new seat
belt policy. That is, management proposed that the Respondent
retroactively enforce the seat belt policy against all civilian
employees found to be in violation after June 15, 1983 (Tr. 199).
However, in addition to disagreement over penalties to be imposed, the
parties were unable to reach agreement on the issue of retroactive
enforcement (Tr. 144).
Thus, after agreeing in a number of areas on September 15, 1983,
unresolved issues remained. The mediator declared that an impasse had
been reached, and the parties agreed that this was indeed true (Tr. 77,
183). According to Ms. Coxson's testimony, representatives of the three
Locals were informed that they would have to go to the Federal Service
Impasses Panel (Panel) for any further resolution of the matter (Tr.
77). Union negotiators did not then indicate whether they would pursue
the matter before the Panel.
Respondent Implements New Seat Belt Policy
On September 20, 1983, five days after the final mediation session,
the Respondent wrote to the three Locals to advise that on September 26,
1983, the Respondent intended to implement Respondent's last best offer
concerning the new seat belt policy (G.C. Exh. No. 24). The letter was
hand delivered to the three Locals on September 20th (Tr. 236). The
eight areas of agreement in the tentative agreement were identified as a
significant portion of the implementation intended. The Respondent also
noted an intent to implement the 30 day penalty for first and subsequent
offenses, except that passengers found in violation would be issued a
warning for a first offense. The proposed policy also allowed for
exceptions in cases wherein there was "acceptable justification" for a
failure to wear seat belts. It was noted that as of September 26th,
persons cited for seat belt infractions after June 15, 1983, would
during the week of September 26th, be issued notification of suspension
of driving privileges.
There was no reason to question evidence to the effect that the
implementation proposed was in fact the Respondent's last best offer
prior to reaching an impasse in negotiations. On September 26, 1983,
the new POV seat belt policy was implemented so as to specifically apply
to both military and civilian personnel (G.C. Exh. 25). Despite some
seeming ambiguity, evidence adduced indicates that no bargaining unit
members were ever suspended. By design, bargaining unit employees were
not retroactively affected by implementation of the policy. The
proposed policy was not implemented so as to affect bargaining unit
employees until September 26th (Tr. 235, 251-252). /17/
On September 30, 1983, four days after implementation, Mr. Case,
writing as the President of AFGE Local 1974, and as a representative of
NFFE Local 1497, and AFGE Local 2040, wrote to the Panel for assistance
(G.C. Exh. No. 26). The Respondent did not become aware of the request
filed until October 4, 1983 (Tr. 236). The record clearly established
that the parties bargained to impasse on issues implemented, and those
raised before the Panel by the three Locals (Tr. 95-96, 182-184,
187-188). /18/
As of September 30th, the date of the request for Panel assistance,
charges had been filed in each of the unfair labor practice cases
referred to in the consolidated complaint. The complaint in Case No.
7-CA-30459 was also issued on September 30th (G.C. Exh. No. 1(g)).
After September 30th the proceedings inititated followed their
respective courses. The Panel proceeding was pending at the time of
hearing and was of concern because of the then existing possibility of
conflicting decisions and remedies. /19/ However, on February 1, 1984,
after the close of the hearing record, the Panel declined jurisdiction
because of the pending unfair labor practice cases involved in this
litigation. Department of the Air Force, Lowry Air Force Base,
Colorado, and Locals 1974 and 2040, AFGE, and Local 1497, NFFE, Case No.
84 FSIP 1.
Following the hearing counsel representing the General Counsel moved
to add the Panel decision to the hearing record, or alternatively, that
official notice be taken of the Panel decision. Counsel representing
the Respondent objected to the introduction of the Panel decision as a
General Counsel Exhibit on the ground that the record was closed.
However, official notice of the decision was not precluded, and the
record indicates that it would be necessary to take official notice of
any Panel action in order to avoid the possibility of conflicting
decisions threatened by the fact that this matter was pending before the
Panel at the time of hearing (Tr. 174-176). Accordingly, official
notice is hereby taken of the Panel's February 1, 1984 decision. /20/
Discussion and Conclusions
Case No. 7-CA-30459
It is alleged in Case No. 7-CA-30459 that the Respondent implemented
a 30 day suspension of driving privileges for failure to wear seat belts
in POVs, and that such implementation was a violation of Section
7116(a)(1) and (5) of the Statute. The record shows that the three
Locals were interested in participaing in negotiations and requested
bargaining concerning this issue; however, all three permitted the
Respondent to opt in favor of post-implementation bargaining. The
record adduced showed that bargaining "as requested" by NFFE Local 1497
commenced on June 21, 1983, six days after June 15, 1983, the
implementation date selected by the Respondent. Ms. Coxson's June 14,
1983, bargaining request gave to the Respondent the option of commencing
negotiations as late as June 21, 1983, and negotiations which did in
fact begin on this date were described by Ms. Coxson as having commenced
"as requested" by here in her June 14, 1983 letter. Furthermore, the
two AFGE Locals participating in joint negotiations also submitted a
bargaining request which clearly contemplated the prospect of
post-implementation bargaining. Under these circumstances there would
be no basis for concluding that implementation of the new seat belt
policy on June 15, 1983, constituted an unfair labor practice within the
purview of the Statute. That is, allegations in the consolidated
complaint resting upon an alleged failure of the Respondent to meet
bargaining obligations in the statute prior to the June 15, 1983
implementation date were not supported by the record. Instead, the
evidence establishes a clear and unmistakeable waiver of the right to
bargain prior to June 15, 1983. Department of the Treasury, United
States Customs Service, Region 1, Boston, Massachusetts, and St. Albans,
Vermont District Office, 10 FLRA No. 100, 10 FLRA 566 (1982).
In addition to the failure of proof outlined, the record shows that
the imposition of the new and more severe penalty alleged in the
consolidated complaint was not, on June 15, 1983, effectuated so as to
affect NFFE Local 1497 bargaining unit employees, or bargaining unit
members of other Locals. Instead, implementation of the policy with
respect to bargaining unit employees was deferred. Introduction of the
new policy, by agreement of the parties, was limited so as to exclude
bargaining unit members. The Respondent did not administratively begin
to apply the policy to bargaining unit members until September 26, 1983.
The record shows that as a result of this method of proceeding no
bargaining unit employee was suspended as a result of the application of
the policy prior to September 26, 1983. This exemption was orally
agreed to by the parties. These circumstances also reflect the absence
of a rationale for an unfair labor practice based upon a June 15, 1983
imposition of a harsher penalty for violation of the seat belt rule.
/21/
It is also alleged in Case No. 7-CA-30459, that the Respondent's July
1, 1983, delegation of authority to suspend driving privileges was a
violation of Section 7116(a)(1) and (5) of the Statute. /22/ The record
reflects that the July 1 change alleged was not effectuated so as to
have any affect upon bargaining unit employees. As of this date the
participants in negotiations were operating under an agreement whereby
implementation of the seat belt policy would be deferred with respect to
all bargaining unit members. The policy was not effectuated so as to
embrace bargaining unit members until September 26, 1983. No
evidentiary basis exists for a finding that the Respondent implemented
the July 1, 1983 delegation of authority as alleged in Case No.
7-CA-30459. Further, consideration of implementation of the delegation
of authority on September 26, 1983, is reflected in discussion relating
to Case Nos. 7-CA-30543 and 7-CA-30584.
In light of the foregoing it is unnecessary to determine whether or
not the delegation of authority had an impact or a reasonably
foreseeable impact upon employees within the meaning of U.S. Government
Printing Office, 13 FLRA No. 39, 13 FLRA 203 (1983); and Department of
Health and Human Services, Social Security Administration, Chicago,
Region, 15 FLRA No. 174, 15 FLRA 922 (1984). /23/
Case No. 7-CA-30584
Case No. 7-CA-30543
Conduct alleged as a basis for unfair labor practices in these two
cases is substantially the same as that set out in Case No. 7-CA-30459.
However, in these cases violations of Section 7116(a)(1) and (5) would
rest upon alleged unilateral implementation of the 30 day penalty and
delegation of adjudicatory authority on September 26, 1983, rather than
June 15, 1983 and July 1, 1983. Presumably, counsel for the General
Counsel is contending that if the policies in question were not
implemented on the earlier dates, they were implemented in violation of
Section 7116(a)(1) and (5) on September 26, 1983.
With respect to NFFE Local 1497 and AFGE Local 1974 bargaining unit
employees involved in these two cases, as well as other bargaining unit
employees represented by AFGE Local 2040, it was established that as of
September 26th, the Respondent had bargained to impasse on all issues
relating to the September 26th implementation of seat belt policy.
The specific issues underlying these two cases were addressed in
detail during negotiations held before and/or during the mediation
phase. This is clear from an examination of documents generated during
bargaining and from the testimony of witnesses.
The record establishes that prior to September 16th, all relevant
issues were negotiated despite the existence of doubt concerning the
Respondent's obligation to bargain concerning some of the proposals made
by the three Locals. /24/ The final bargaining session on September
15th, did not result in the adoption of the tentative agreement under
discussion on that date, but it did nevertheless represent an extended
session of good faith bargaining on issues reflected in the proposed
tentative agreement, as well as other issues relating to the subject.
On September 15th the negotiators recognized that an impasse had been
reached, and the Charging Parties in these two cases were apprised of
their right to seek Panel assistance by the mediator.
On September 20th the Respondent advised union locals that
Respondent's last best offer would be implemented on September 26th.
The record reflects a basis for finding that the policies actually
implemented on this date were in fact Respondent's last best offer. The
Locals did not seek Panel assistance during the period intervening
between September 20th and September 26th. Instead, the request for
Panel assistance was not submitted until September 30, 1983, or four
days after the Respondent made the new seat belt policies applicable to
bargaining unit members. Since the Locals herein had a reasonable
opportunity to invoke the services of the Panel after the parties
reached impasse in their negotiations on September 15th, and after
receiving Respondent's September 20th notice of intent to implement its
last proposals on September 26th; and since there was a failure to
request the services of the Panel prior to the announced date scheduled
for implementation, it must be concluded that the Respondent did not act
unlawfully when the new policies were implemented on September 26th.
U.S. Air Force, Air Force Logistics Command, Wright-Patterson Air Force
Base, Ohio, 5 FLRA No. 39, 5 FLRA 288 (1981); U.S. Customs Service, 16
FLRA No. 31, 16 FLRA 198, (1984); Department of Health and Human
Services, Social Security Administration, Baltimore, Maryland, 16 FLRA
No. 32, 16 FLRA 217 (1984).
As a result of the conclusions outlined, it is recommended that the
Authority issue the following Order pursuant to 5 C.F.R. section
2423.29.
ORDER
IT IS HEREBY ORDERED, that the consolidated complaint in Case Nos.
7-CA-30459, 7-CA-30584, and 7-CA-30543, be, and hereby is, dismissed.
/s/ LOUIS SCALZO
Administrative Law Judge
Dated: November 16, 1984
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(*) Contrary to the Judge, the Authority finds that NFFE's request on
June 14 to bargain as soon as possible, but no later than June 21, 1983,
did not constitute a waiver of the Union's right to bargain prior to the
implementation of the change. Similarly, the Authority finds that
AFGE's request on June 14 to exclude the employees in its unit of
exclusive recognition from the change until the parties reached
agreement did not constitute a waiver of AFGE's right to bargain prior
to implementation of the change. In this regard, the Authority notes
that Respondent first notified the Unions of the proposed change on June
10, and proposed June 15 as the implementation date. They Authority
takes administrative notice that June 10, 1983, was a Friday and that
the Unions' response was made by the following Tuesday. Thus, the
Unions' response was timely and, given the circumstances, contained no
language which would serve as a clear and unequivocal waiver of their
right to bargain prior to implementation of the change. Moreover, the
Authority notes that subsequent to receiving the Unions' request, the
Respondent delayed implementation until after it had satisfied its
bargaining obligation.
(1) The complaint alleged a failure to bargain in good faith
concerning the substance and impact and implementation of the June 15,
1983 memorandum, and a failure to bargain concerning the impact and
implmentation of the July 1, 1983 memorandum.
(2) Allegations in Case No. 7-CA-30543, involving AFGE Local 1974,
are set forth in Paragraphs 5, 14, and 17 of the consolidated complaint.
Counsel representing the Respondent moved to strike poritions of the
General Counsel's post-hearing brief because of a perceived attempt to
expand the allegations of the consolidated complaint to include other
alleged unfair labor practices perpetrated against AFGE Local 1974, but
not specifically pleaded in the consolidated complaint. Counsel
representing the General Counsel filed an opposition to the motion to
strike. Since only specifically pleaded allegations relating to AFGE
Local 1974 may be considered as a basis for any possible remedy which
might inure to the benefit of AFGE Local 1974, and since statements
reflected in a post-hearing brief are not evidence, and do not otherwise
operate to amend the consolidated complaint, the motion to strike is
denied.
(3) Counsel representing the General Counsel moved to correct errors
in the hearing transcript. Under authority reflected in 5 C.F.R.
section 2423.19(r), the proposed corrections are approved with the
exception of the proposed correction at Tr. 6:9. An examination of this
reference in the transcript reflects no error of the type noted in the
motion. Other errors noted on this transcript page were described as
appearing at Tr. 6:22, 23 and 24 respectively; however, these errors
appeared at Tr. 6:19, 22 and 23 instead.
(4) As a result of delivery of the memorandum on June 9, 1983, NFFE
Local 1497, received approximately six days notice of the change. A
statement to the contrary in the General Counsel's Brief is not
supported by the record (G.C. Brief at page 20).
Counsel for the General Counsel attempted to derive some benefit from
the fact that an incomplete account of the proposed change was reported
in the "Lowry Airman," a LAFB newspaper (G.C. Exh. No. 9). It was
argued that the new policy was accounced in the newspaper as a fait
accompli on June 10, 1983. However, Jt. Exh. No. 10 reflects notice of
the proposed change, and there was no showing that the Respondent was
responsible for issuance of the incomplete newspaper account, or that
such publication was otherwise intended to be a unilateral
implementation of a new seat belt policy on June 10, 1983. Argument
that the new policy went into effect without notice on June 10, 1983, is
not supported by the record.
(5) On the same date (June 14, 1983), a similar bargaining request
was supplied to Mr. Koehler on behalf of AFGE Locals 1974 and 2040, as
they also were interested in joint bargaining concerning the change. It
did not include a request for delay in implementation, and did not
mention a specific date to begin negotiations. These Locals requested
Koehler to reply to the request "before the end of the week to set up a
bargaining sess . . . ." (G.C. Exh. No. 12). The week in question ended
on June 17, 1983, two days after the proposed June 15, 1983
implementation.
This document, plus other evidence in the record shows that the three
Unions did not specifically contemplate bargaining prior to
implementation. Instead the parties agreed that post-implementation
bargaining might ensue. However, at or about the same time it was also
agreed that no enforcement action under the new policy would be
inititated against bargaining unit employees until after Respondent met
statutory bargaining obligations.
(6) The Respondent deferred action against all civilian employees
including those represented by NFFE, the exclusive representative of
bargaining unit members identified in Case No. 7-CA-30459, because it
was not possible for security personnel to determine which civilian
employees were bargaining unit members. The record indicates that by
design the new suspension policy was not effectuated so as to affect
bargaining unit employees until after September 26, 1983.
(7) The complaint does not rely upon a change in the degree of
attention given to the use of seat belts in POVs. It refers to alleged
changes relating specifically to penalties to be imposed for violation
of rules requiring seat belts in POVs, and changes relating to the
delegation of authority to suspend driving privileges.
(8) The three Locals first became aware of the delegation of
authority at the July 6, 1983 negotiating session.
(9) The Respondent sought agreement on this point from the three
Locals participating in negotiations in order to apply the stricter
sanction against all civilian employees found to be in violation after
June 15, 1983. However, by design the Respondent never did proceed
against bargaining unit employees, and did not otherwise enforce the new
policy against bargaining unit employees until after September 26, 1983.
(10) The memorandum notes that the two AFGE Locals reserved the right
to "add to and/or modify" the counterproposals submitted.
(11) Colonel Taylor replaced Colonel Hobgood as Base Commander during
the interim period.
(12) The record at this point reflects a stated intent to implement
on August 22, 1983. However, it was clear that no steps toward
implementation were initiated on this date (Tr. 69).
(13) Following the July 15, 1983 bargaining session the parties did
not commence actual negotiating meetings again until September 9, 1983.
(14) However, the parties did come close to agreement at one point
during mediation (Tr. 249).
(15) This exhibit reflects only the initials of officials
representing the three union Locals. However, both the letter of
transmittal prepared by the mediator, and the hearing transcript reflect
that representatives of the Locals, and representatives of the
Respondent reached agreement on paragraphs initialed. The apparent
absence of initialing by a representative of the Respondent is explained
by testimony to the effect that agreement on each paragraph was followed
by the parties initialing paragraphs on their copies of the proposed
tentative agreement (Tr. 142).
(16) The record copy of the tentative agreement considered by the
parties reflects interlineations which may be disregarded as not a part
of the exhibit (Tr. 77, 146-147).
(17) Counsel representing the General Counsel endeavored to show that
the absence of bargaining unit employee suspensions was the result of
chance rather than design. However, it appeared that only nonbargaining
unit employees cited after June 15, 1983, were suspended after September
26th. By design bargaining unit employees were not affected until after
September 26th.
However, despite the foregoing, the parties did, as previously noted,
generally discuss and disagree on a proposal to apply the policy
retroactively to all civilian employees found to be in violation of the
seat belt rule after June 15, 1983.
(18) At an early stage of negotiations, prior to mediation, the
Respondent interposed assertions of nonnegotiability relating to certain
issues. These assertions were abandoned during later negotiations, but
were subsequently revived in replies to a Panel request for a statement
of position (G.C. Exh. No. 28 and 29). However, despite early
assertions of nonnegotiability the Respondent bargained in good faith on
all issues prior to impasse. Also, the complaint was not based upon any
assertion of nonnegotiability interposed by the Respondent during
negotiations which ensue prior to mediation. It is therefore
unnecessary to consider Respondent's early assertions of
nonnegotiability for the purpose of determining whether unfair labor
practices were established.
(19) The practice of simultaneously seeking Panel assistance and a
remedy in an unfair labor practice proceeding to resolve substantially
the same issues are condemned by the Authority in Department of the
Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 13 FLRA No. 95, 13
FLRA 571 (1984).
(20) Although litigation of an unfair labor practice matter which
goes to the heart of negotiations made the subject of Panel impasse
procedures, has been condemned by the Authority, the fact remains that
as of this date only this consolidated complaint is pending disposition.
In view of this, and in light of the fact that other factors militate
in favor of dismissal of the consolidated complaint, it is unnecessary
to determine whether the simultaneous processing of this matter as both
Panel and Authority proceedings would have given rise to any reason for
dismissal.
(21) The consolidated complaint indicates considerable uncertainty
concerning the alleged date of implementation of the new seat belt rule.
In Case No. 7-CA-30459, it is alleged that the Respondent implemented a
new and harsher penalty on June 15, 1983; whereas in Case Nos.
7-CA-30543 and 7-CA-30584, it was alleged that such implementation
commenced on September 26, 1983. As a result of the foregoing, it is
clear that doubt concerning the date of implementation was built into
the theory of the case. Discussion of the September 26, 1983
implementation follows herein in connection with consideration of Case
Nos. 7-CA-30543 and 7-CA-30584.
(22) Duality in the prosecutive theory is also reflected by a
comparison of this allegation with allegations set out in Case Nos.
7-CA-30543 and 7-CA-30584. In the latter cases it was alleged that
implementation of the delegation of authority occurred on September 26,
1983.
(23) If an impact upon employees which is more than de minimus cannot
reasonably be foreseen no bargaining obligation arises. Counsel
representing the General Counsel argued that an advserse impact was
foreseeable. It was noted that a greater number of individuals would be
adjudicating cases involving violation of the seat belt rule. However,
from this fact it would not be possible to conclude that bargaining unit
employees would receive unfair or disparate treatment.
Similarly, it was contended that there would be an impairment of the
exclusive representative's capacity to monitor the seat belt program,
and to represent aggrieved employees. These assertions were speculative
in nature. It cannot be presumed that this administrative change would
have impeded efforts to monitor organizational commander adjudications,
or that it would have interfered with the right of any exclusive
representative to represent or assist bargaining unit employees. The
mere assertion of these contentions by counsel representing the General
Counsel, without more, would not demonstrate a factual basis for finding
a foreseeable adverse impact as claimed.
(24) This circumstance makes it necessary to determine the nature of
the Respondent's bargaining obligation with respect to particular
proposals raised by the Locals. Moreover, as previously noted, the
complaint does not allege unfair labor practices based upon Respondent's
interposing allegations of nonnegotiability.