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43:0736(59)CA - - Air Force Logistics Command, Ogden Air Logistics Center, Hill AFB, UT and AFGE Local 1592 - - 1991 FLRAdec CA - - v43 p736

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[ v43 p736 ]
The decision of the Authority follows:

43 FLRA No. 59










(Charging Party/Union)



December 20, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in the above-entitled proceeding finding that the Respondent did not violate section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by bypassing the Union when it met with a unit employee and offered him a "last chance agreement." The Judge recommended that the complaint be dismissed. The Union filed exceptions to the Judge's decision. The General Counsel filed no exceptions to the decision and the Respondent did not file an opposition to the Union'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, conclusions, as modified below, and his recommended order.

We agree with the Union that the Agency could not "avoid a bypass violation by notifying the Union that it intends to bypass the representative." Exceptions at 2. However, it is clear that "[a]n employer may deal directly with its employees over any lawful matter if it first obtains the consent of their union." Toledo Typographical Union No. 63 v. NLRB, 907 F.2d 1220, 1222 (D.C. Cir. 1990), citing J.I. Case Co. v. NLRB, 321 U.S. 332, 338 (1944). Based on the Judge's findings of fact, to which no exceptions were filed, we conclude that the Union effectively consented to the Agency's dealings with the employee regarding the last chance agreement.

The record establishes that a week or two before the employee received the last chance agreement on June 25, 1990, Gary Higgs, the Agency's employee relations specialist, informed Scott Blanch, the employee's Union representative, that the Agency wished to issue a last chance agreement to the employee at the hospital where the employee was receiving treatment. Blanch objected only to meeting with the employee at the hospital, but ultimately agreed that this issue should be resolved by hospital officials. Judge's decision at 5. In subsequent conversations with Blanch, Higgs informed Blanch of the date and time of the meeting with the employee. At a meeting between Higgs and Blanch during the week before June 25, Blanch again objected to the site for the last chance agreement meeting, but again also agreed that hospital professionals should make that determination. Id. Blanch told Higgs that he was the employee's representative and that he would be at the meeting with the employee. Id.

On June 25, Agency representatives waited in Higgs' office for Blanch to arrive, apparently under the mistaken belief that Blanch had accepted Higgs' offer of a ride to the hospital. At the hospital they waited for about 20 minutes for Blanch to arrive before proceeding to discuss the last chance agreement with the employee. Id. at 5-6. At no time did Blanch object to the fact that the Agency planned to meet with the employee for the purpose of giving him a last chance agreement; nor did Blanch inform the Agency that such a meeting should not proceed without the presence of a Union representative. Indeed, at one point, Blanch indicated to Higgs "that he was not sure it would be appropriate for [the employee] to have a representative at the [last chance agreement] meeting." Id. at 5.

Based on these facts, we conclude that, by its conduct, the Union evidenced the requisite consent that permitted the Agency to meet with the employee concerning the last chance agreement even though his Union representative was not present. The Agency gave the Union a full opportunity to negotiate over the terms of the last chance agreement, but the Union did not evidence any interest in doing so. Rather, its sole concern appeared to be the site for the meeting with the employee. Moreover, although the Union representative knew that the meeting would take place on June 25 and stated that he would be there, he did not inform the Agency that he would not in fact attend. In view of the representative's failure to state any opposition to holding the meeting without him, the Agency lawfully proceeded to meet with the employee when the representative did not appear.

II. Order

The complaint in this case is dismissed.

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