---

35 FLRA No. 39

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE AIR FORCE

SACRAMENTO AIR LOGISTICS CENTER

MCCLELLAN AIR FORCE BASE, CALIFORNIA

(Respondent/Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1857, AFL-CIO

(Charging Party/Union)

9-CA-80327

9-CA-80487

DECISION

March 30, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in this consolidated proceeding finding that the Respondent had violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by bypassing the Union and holding meetings to present final decisions on disciplinary actions to employees who were being represented by the Union without affording the Union an opportunity to be present at those meetings. The Judge also found that the Respondent's refusal to permit the Union to attend the meetings interfered with employees' rights to designate the Union to represent them throughout such disciplinary proceedings and constituted an independent violation of section 7116(a)(1).

The Judge based his findings and conclusions on the Authority's decision in 438th Base Group (MAC), McGuire Air Force Base, New Jersey, 28 FLRA 1112 (1987) (McGuire Air Force Base), in which the Authority found that the agency violated the Statute when it bypassed the union by dealing directly with a unit employee concerning a disciplinary matter.

The Respondent filed exceptions to the Judge's Decision and the General Counsel filed an opposition to the Respondent's exceptions.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's Decision and the entire record, we adopt the Judge's findings⁽¹⁾, conclusions⁽²⁾ and recommended Order as modified below.

In his Order, the Judge recommended that the Respondent be ordered to cease and desist from (1) bypassing the Union and furnishing or delivering disciplinary decisions or other responses only to the disciplined employee, and (2) interfering with employees' rights by furnishing or delivering decisions or other responses involving disciplinary proceedings directly to employees while failing to furnish those decisions or responses to the Union. Because we adopt the Judge's finding that the Respondent violated the Statute by refusing to allow the Union the opportunity to be present during meetings where employees are given final decisions on disciplinary actions, we will modify the Order to address that violation.

II. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, shall:

1. Cease and desist from:

(a) Failing and refusing to bargain in good faith with the American Federation of Government Employees, Local 1857, AFL-CIO, the exclusive bargaining representative of its employees, by bypassing designated Union representatives and holding meetings to present final decisions on disciplinary actions to employees represented by the Union without affording the Union the opportunity to be present at those meetings.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute by holding such meetings while failing to permit the American Federation of Government Employees, Local 1857, AFL-CIO, the designated representative of its employees, the opportunity to attend.

(c) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights assured them by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Permit the American Federation of Government Employees, Local 1857, AFL-CIO, the designated representative of its employees, to attend meetings held to present final decisions on disciplinary actions to employees represented by the Union.

(b) Post at its McClellan Air Force Base, California facilities where bargaining unit employees represented by the American Federation of Government Employees, Local 1857, AFL-CIO are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commanding Officer and shall be posted in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted, and shall be maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure 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 IX, 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.

---

---

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to bargain in good faith with the American Federation of Government Employees, Local 1857, AFL-CIO, the exclusive bargaining representative of our employees, by bypassing designated Union representatives and holding meetings to present final decisions on disciplinary actions to employees represented by the Union without affording the Union the opportunity to be present at those meetings.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute by holding such meetings while failing to permit the American Federation of Government Employees, Local 1857, AFL-CIO, the designated representative of our employees, the opportunity to attend.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the rights assured them by the Statute.

WE WILL permit the American Federation of Government Employees, Local 1857, AFL-CIO, the designated representative of our employees, to attend meetings held to present final decisions on disciplinary actions to employees represented by the Union.

_______________________
(Activity)

Dated:___________ By:_______________________
(Signature) (Title)

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 IX, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, California 94103, and whose telephone number is: (415) 744-4000.

---

---

---

FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. One of the Respondent's exceptions relates to certain credibility findings made by the Judge. The demeanor of witnesses is an important factor in resolving issues of credibility, and the Judge has had the benefit of observing the witnesses while they testified. We will not overrule a Judge's determination regarding credibility of witnesses unless a clear preponderance of all the relevant evidence demonstrates that the determination was incorrect. We have examined the record carefully and find no basis for reversing the Judge's credibility findings. See Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, New York Region, 34 FLRA 506 (1990).

2. The Respondent's exception to the Judge's conclusion that it bypassed the Union relies on Department of the Air Force, Headquarters 832d Combat Support Group, Luke Air Force Base, Arizona, Case No. 8-CA-50075 (1985), ALJ Decision Reports, No. 54 (Nov. 8, 1985) (Luke Air Force Base). However, because no exceptions were filed to the judge's decision in Luke Air Force Base, it is without precedential significance. See 5 C.F.R. § 2423.29(a). In agreement with the Judge, we find that McGuire Air Force Base is applicable precedent in this and similar cases.

---