[ v55 p1309 ]
55 FLRA No. 211
DEPARTMENT OF DEFENSE
U.S. ARMY RESERVE PERSONNEL COMMAND
ST. LOUIS, MISSOURI
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 900
DECISION AND ORDER
January 31, 2000
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1]
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the General Counsel (GC).
The complaint alleges that the Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by ordering the removal of two notices posted by the Charging Party, American Federation of Government Employees, AFL-CIO, Local 900, (AFGE Local 900 or the Union) on the electronic bulletin board, which is maintained by the Respondent.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision. We find that one allegation of the complaint should be dismissed, for the reasons explained herein. We further find that a second allegation of the complaint, as described below, must be remanded to the Judge.
AFGE Local 900 represents a unit of approximately 1,100 employees of the Respondent, including employees of the U.S. Army Reserve Personnel Command (Command). The Command has an automated mail system, which includes e-mail and a number of electronic bulletin boards, including one for the Union. Mary Cooper, the Union's president, can post messages to the bulletin board. However, her practice has been to send a typed message to the Centralized Customer Agency (CCA), a part of Respondent's Information Support Activity, which actually does the posting. Until the events in this case in 1998, posted items would remain unless or until the Union requested they be removed.
Respondent's commander, Col. Conway, issued a policy directive on April 15, 1997, providing in pertinent part:
d. E-mail shall not be used for:
. . . .
(7) Receiving, producing or sending annoying, harassing, lewd or offensive material.
Respondent's Exh. 1 at 3.
In mid-January, 1998, the Union made the following request concerning the collective bargaining agreement (CBA), which expired on January 1, 1998:
It has been brought to the attention of the Union that your subordinates are still utilizing the guidelines of this agreement. The Union request[s] all actions as it pertains to the Agreement of the staffing plan cease until negotiations are complete.
General Counsel's Exh. 2.
By letter dated January 26, 1998, Col. Timothy W. Cannon, Deputy Chief of Staff for Personnel, Administration and Logistics, replied to the Union's request to bargain on the expired CBA. The reply noted that 37 employees had been scheduled to be promoted to grade GS-5 on January 18, 1998, as part of the Staffing Plan in effect until January 1, 1998. The letter stated that these promotions would be held in abeyance until completion of the requested negotiations, and that Respondent also would withdraw announcements for seven GS-7 positions, which would not be reannounced. The letter continued:
I truly hope you understand the consequences that your request will have on the bargaining unit employees that you represent. First and foremost, [ v55 p1310 ] your request will put a hold on 37 . . . promotions. . . . In order for these employees to receive their scheduled promotion pay beginning January 18, 1998, the Union's requested negotiations must be concluded January 28, 1998.
General Counsel's Exh. 3 at 1-2, Judge's decision at 4.
Employees obtained a copy of this letter, initialed by Cooper indicating that she received it on January 27, 1998. In the words of the Judge, Ms. Cooper "retaliated" on January 29, 1998, Judge's Decision at 4, with a notice to all unit employees posted on the electronic bulletin board. The notice provides, in part, as follows:
On January 28, 1998, Tim "LOOSE" Cannon sent a letter to the Union President (SEE ATTACHED), stating that per the Union's request, he's holding all promotions until negotiations are complete.
He purposely gives the impression that the Union asked to stop promotions. . . . Tim "LOOSE" Cannon issued copies of his letter and the Union's request to negotiate to management and employees; thereby, attempting to BUST UP THE UNION.
Tim "LOOSE" Cannon sent me a letter via cc:mail [e-mail] stating that Management will proceed with the promotions of the GS-5's. He further stated that if the Union disagreed with the promotions, we could take appropriate actions. . . .
General Counsel's Exh. 5 at 1, Judge's decision at 4-5.
The Union's message was removed from the electronic bulletin board by management late in the day on January 29, the same day it was posted. When Cooper learned of this, she re-posted it, on February 2. This latter message, too, was removed, on February 2. On that same date, Maj. David Mingo of the Information Support Activity, which supports Respondent, sent a message to the Union, entitled "AFGE 900 Message Screening," which stated:
1. 29 January 1800, MAJ Boyd Collins [public affairs officer for Respondent] . . . asked that a derogatory message be removed from AFGE's Bulletin Board. I removed the message.
2. I told him I would have my staff forward AFGE messages to me before posting them to the bulletin board. I neglected to inform my staff of this new requirement. . . Today Ms[.] Price reminded me of my commitment to MAJ Collins, and asked me to remove another derogatory message from the AFGE bulletin board.
3. As of today myself or MSG Hill will review all AFGE messages prior to posting.
General Counsel's Exh. 7, Judge's decision at 5-6.
The Union filed a grievance, dated February 5, 1998, which states, in pertinent part:
Union Grievance RE: Censorship of the Union's Electronic Bulletin Board
Dear Ms. Calloway:
The Union was informed [on] February 3, 1998 that the Agency will censor it's [sic] Electronic Bulletin Board and remove whatever they deem necessary. This is in violation of Article XIII of the Collective Bargaining Agreement. . . .
Respondent's Exh. 2. Cooper testified that she later determined that the CBA does not contain anything about electronic bulletin boards. Tr. at 40. [n2]
The Union filed the following unfair labor practice charge on March 6, 1998:
On February 3, 1998 the Agency unilaterally changed a past practice without notifying this Union.
Specifically, the Agency instructed CCA to screen all Union messages on the AFGE Bulletin ccmail account. The AFGE Bulletin [board] has NEVER been screened before. And the Union was not notified nor provided an opportunity to bargain.
General Counsel's Exh. 1(a).
On September 20, 1998, the Union filed an amended charge, which reads as follows:
On February 3, 1998 the Agency unilaterally changed a [past] practice without notifying this Union.
Specifically, the Agency instructed the Centralized Communications Agency (CCA) to screen all Union messages on the AFGE Bulletin cc mail account and to remove two messages from the AFGE electronic "bulletin board". The AFGE Bulletin has NEVER been screened or messages [ v55 p1311 ] on it removed before. And the Union was not notified nor provided an opportunity to bargain.
General Counsel's Exh. 1(b).
On February 2, 1998, the same day that the "loose Cannon" memo was re-posted (and removed), the Union posted another memo to its electronic bulletin board, this one concerning a Partnership Council issue. It began, "Well, once again the Agency officials have conspired to 'UNION BUSTING.'" General Counsel's Exh. 9. The posting also contained the text of a grievance filed by the Union that day, alleging violations of a specific article of the CBA that deals with partnership. [n3] It is undisputed that the Respondent removed this message on February 2.
The complaint alleges that the Respondent violated section 7116(a)(1) when, after allowing the Union to use the AFGE bulletin board without promulgating standards to regulate such notices, "[o]n or about February 3, 1998, Respondent . . . instructed [its agent] to remove two notices" posted by the Union. Complaint, General Counsel's Exh. 1(c) at 2.
III. Judge's Decision
Before passing on the merits, the Judge considered whether the unfair labor practice (ULP) is barred by section 7116(d) of the Statute based on the Union's February 5, 1998 grievance. He stated that in order to decide whether a ULP is barred by section 7116(d), the Authority will examine the subject matter of the ULP charge to determine if both the factual predicate and legal theory are the same as raised in the grievance, citing United States Small Business Administration, Washington, D.C., 51 FLRA 413, 421 (1995).
The Judge found that the original charge and the amended charge asserted the same cause of action. He stated that the original charge alleged "the Agency instructed CCA to screen all Union messages" and the amended charge "added as instances of the screening, '. . . and to remove two messages. . . .'" Judge's decision at 12. He further stated:
Screening of messages, censorship, includes the removal of offending material as well as the rejection for posting. Consequently, the First Amended charge asserted no new cause of action but, rather, gave as specific instances of the screening, censorship, the removal of two messages.
The Judge found that:
Because the grievance and the charge each arose from the same factual circumstances and because each asserted the same theory, namely, the screening, or censorship, of the Union's messages on the electronic bulletin board, the Complaint herein is barred, pursuant to § 16(d) of the Statute, by the prior filed grievance. [n4]
The Judge stated that if the Authority should determine that the complaint alleging a ULP for removing the "loose Cannon" message is not barred by section 7116(d), then he would nevertheless find that, both times it was posted, the memo "was removed because it plainly violated established Command Policy on the use of E-mail, [and therefore] constituted no change of established conditions of employment and did not violate [section 7116(a)(1)] of the Statute." Judge's Decision at 14.
The Judge found that the April, 1997 directive establishing Agency policy on e-mail postings was in effect before the "loose Cannon" memos were posted, and that the messages violated the policy. The Judge stated that, while not "lewd," it "was annoying, constituted harassment and was offensive[.]" Id. at 13. He also found that the description of "a senior military officer, in the military environment of Respondent" was derogatory, annoying, constituted harassment, "and was offensive to Colonel Cannon, personally, and to Respondent in general." Id.
Accordingly, as the removed postings violated Agency policy, the Judge recommended dismissal of the complaint. [ v55 p1312 ]
IV. Positions of the Parties
A. General Counsel's Exception To Finding That the Complaint Is Barred By Section 7116(d)
The General Counsel concedes that "the grievance and the ULP admittedly arose from similar circumstances[.]" Exceptions at 8. Nevertheless, the General Counsel contends that there are "important distinctions that the ALJ ignored." Id. In addition, the General Counsel argues that even assuming that the grievance and the ULP arose from the same factual circumstances, "they are clearly not based on the same legal theory. The grievance alleges a contract violation." Id. at 9. The General Counsel notes that neither the original nor the amended charge mentions the CBA, but rather relies on a theory of statutory violation. The General Counsel states that although Cooper testified she later discovered that the CBA does not explicitly cover the subject of electronic bulletin boards, the issue is not whether the grievance had merit under the theory alleged, but only whether the theory alleged in the grievance is the same as in the ULP charge.
The General Counsel argues that the Judge_s framing of the theory of violation in both the grievance and the ULP as "the screening, or censorship, of the Union's messages on the electronic bulletin board" was incorrect. Id. at 10, quoting the Judge's decision at 12. The General Counsel continues,
But "screening or censorship" was not the theory; it was the factual basis for the allegations. Identifying the theory of violation involves identifying the source of the right that was allegedly infringed upon. In this case, the theory in the grievance was contractual and the theory in the ULP was statutory[.]
Exceptions at 10.
B. Respondent's Opposition
Respondent asserts that the General Counsel overlooks "the only plausible basis for the grievance" in claiming that it is based on the CBA (in contrast to the ULP being based on the Statute). Respondent's Opposition at 5. Respondent claims that Cooper's admission that the CBA does not address the e-mail system or the electronic bulletin board would lead to the conclusion that the grievance is without merit, if based on the CBA. Therefore, states the Respondent, the only "plausible basis" for the grievance must be that "unfettered access" to the electronic bulletin board was established by past practice. Id. at 5-6. That, the Respondent points out, is the same theory on which the ULP charge is based.
The Respondent contends that the grievant should be "requir[ed] . . . to adopt the more plausible theory" if there are two possibilities and one of the two "would doom a grievance to failure" and the other would justify some sort of relief if proven. Id. at 7.
C. General Counsel's Exception to the Judge's Failure to Find On the Merits that Removal of the Messages Violated the Statute
The Judge determined that if the Authority should find that the complaint is not barred by section 7116(d), then the complaint regarding the "loose Cannon" postings should be dismissed on the merits. The General Counsel excepts to the Judge's recommendation that the allegation regarding removal of the "loose Cannon" posting be dismissed. The General Counsel also excepts to the Judge's failure to address and find a violation concerning the allegation about the Respondent's removal of the Partnership Council posting.
The General Counsel contends that there is no evidence that the Respondent applied its policy on e-mail postings when it removed the postings. Accordingly, the General Counsel argues, an adverse inference should be drawn from the fact that the Respondent did not present evidence on why it wanted the postings removed. The General Counsel contends that the result should be a finding that the Respondent's removal of both the "loose Cannon" posting and the Partnership Council posting violated the Statute as alleged.
D. Respondent's Opposition
The Respondent argues that the assertion that it failed to apply a standard was never raised until the General Counsel's opening statement at the hearing. In addition, the Respondent notes that the postings were accessible to all employees, including military employees, and that it is responsible for "maintaining the good order and discipline of a military organization" as well as discharging its duties under the Statute. Opposition at 12.
E. General Counsel's Exception to the Judge's Failure To Address the Allegation Regarding Removal Of the Partnership Council Posting
The complaint states that "[o]n or about February 3, 1998, Respondent . . . remove[d] two notices posted by AFGE, Local 900 on its AFGE bulletin board." General Counsel's Exh. 1(c), quoted in Exceptions at 13. The General Counsel contends that one of the "two notices" refers to the identical messages about Col. Cannon on that were posted and re-posted on January 29 [ v55 p1313 ] and February 2, respectively; and that the second of the "two notices" refers to the Partnership Council posting.
The General Counsel states,
The message concerning the partnership issue was disclosed to the ALJ and to opposing counsel on November 24, 1998, as part of Counsel for the General Counsel's prehearing disclosure. In addition, at the hearing, Counsel for the General Counsel presented approximately eight transcript pages of testimony by Ms. Cooper about the posting and removal of the message on partnership with no objection from opposing counsel.
Exceptions at 13. Moreover, the General Counsel asserts that it "briefed the facts surrounding the posting and removal of this item, and argued in the brief that the removal of this item constituted a violation of section 7116(a)(1) of the Statute. Counsel for the Respondent similarly addressed this message in his post-hearing brief." Id.
The General Counsel states that to the extent there was confusion as to whether the reference to "two" notices posted on the Union's electronic bulletin board meant the staffing posting, which was posted twice, or meant the staffing posting and the Partnership Council posting, "the totality of the circumstances here should have made it clear by the time the ALJ wrote his decision that the notice concerning partnership was clearly an allegation in the case." Id. at 14. The General Counsel asserts that the complaint is broad enough to encompass this allegation, and the Respondent had a full and fair opportunity to litigate the issue at the hearing.
Finally, the General Counsel argues that even if the complaint is not sufficiently clear, so that the Judge misunderstood the specific allegation, "the Authority has the power to address the issue here." Id. Thus, the General Counsel asserts that the Authority can address issues about which a complaint is silent or ambiguous, if the record shows that the issues were fully and fairly litigated, i.e., the respondent knew what conduct was at issue and had a fair opportunity to present a defense. In support, the General Counsel cites Bureau of Prisons, Office of Internal Affairs, Washington, D.C. and Phoenix, Arizona and Federal Correctional Institution, El Reno, Oklahoma, 52 FLRA 421, 429 (1996).
F. Respondent's Opposition
The Respondent argues that there is no evidence of a past practice allowing the Union to publish material that conflicts with the policy barring "annoying, harassing, lewd or offensive material" from the electronic bulletin board. Opposition at 10. Otherwise, the Respondent does not respond to the exception regarding the Judge's failure to address the allegation that the Respondent improperly removed the Partnership Council posting.
V. Analysis and Conclusions
A. The ULP Complaint Is Not Barred By Section 7116(d)
Consistent with Authority precedent, "[i]n determining whether a ULP and a grievance involve the same issue, the Authority focuses on whether the ULP arose from the same set of factual circumstances as the grievance and whether the theories advanced in support of the ULP and the grievance are substantially similar." American Federation of Government Employees, Local 1917 and U.S. Department of Justice, Immigration and Naturalization Service, 52 FLRA 658, 663 (1996) (AFGE Local 1917); U.S. Department of the Army, Army Finance and Accounting Center, Indianapolis, Indiana and American Federation of Government Employees, Local 1411, 38 FLRA 1345, 1350-51 (1991), review denied, AFGE Local 1411 v. FLRA, 960 F.2d 176 (D.C. Cir. 1992). We conclude, for the reasons below, that the complaint is not barred by section 7116(d) because the theories advanced in support of the grievance and the ULP are different.
The grievance explicitly states that the Respondent informed the Union that "the Agency will censor it's [sic] Electronic Bulletin Board and remove whatever they deem necessary[,] [i]n violation of Article XIII of the Collective Bargaining Agreement." Respondent's Exh. 2. Although the Union conceded that it was mistaken regarding the coverage of the agreement, the grievance clearly raises the CBA as its basis. The ULP Amended charge alleges that the Respondent's removal of the postings from the bulletin board violated section 7116(a)(1) of the Statute. Thus, the grievance explicitly alleged a violation of the CBA, and the basis of the ULP allegation was a violation of the Statute. Accordingly, the grievance and the ULP allegation were based on different theories. Therefore, the complaint is not barred by section 7116(d). See, e.g., U.S. Department of Veterans Affairs, Medical Center, North Chicago, Illinois and American Federation of Government Employees, Local 2107, 52 FLRA 387, 392-93 (1996). [n5] [ v55 p1314 ]
B. Removal of the "Loose Cannon" Memo Did Not Violate the Statute
In Department of the Air Force, Scott Air Force Base, Illinois, 34 FLRA 1129, 1136 (1990) (Scott), on which the General Counsel relies to support its exceptions, the Authority stated:
Where a right of access to agency property has been established by past practice [use of the Agency newspaper, in that case], an employer would reasonably tend to discourage union activity in violation of section 7116(a)(1) of the Statute if: . . . (2) the employer removes union material from the employer's property where the union had been permitted to post notices and the posted material meets the employer's established standards[.]
34 FLRA at 1136, emphasis added. The Respondent does not dispute the appropriateness of applying Scott, opposition at 8. Consistent with this precedent, the Judge found that the Respondent did not violate section 7116(a)(1) of the Statute because the material at issue "plainly violated established Command Policy on the use of e-mail," that prohibited the sending of "annoying, harassing, lewd, or offensive material." Judge's Decision at 13-14 (quoting Respondent's Exh. 1, Sec. 5, Par. D(7)). The General Counsel makes only a limited challenge to this finding, asserting that the Judge erred in basing it on "his opinion that the messages were violative of the policy," rather than "evidence in the record that anyone at the Respondent actually applied the Command Policy when deciding to order CCA to remove the messages." GC Exceptions at 15. According to the General Counsel, an "adverse inference should be drawn because the Respondent did not supply evidence that it, in fact, applied the policy." Id. The General Counsel also argues that "the material met the Respondent's established standards." GC's Exceptions at 17.
The General Counsel points to nothing in Scott Air Force Base, or any other precedent, that supports its assertion that the Judge erred in determining that the message, in fact, violated the Agency's established standard. The General Counsel also does not provide support for its argument that the Respondent bore the burden of establishing this factual element. Accordingly, the General Counsel has not established that the Judge erred in this regard, or provided a basis for our drawing an adverse inference from the Respondent's failure to provide evidence of its reasoning. See, U.S. Department of Commerce, Patent and Trademark Office, 54 FLRA 360, 370 (1998) (it is axiomatic that the General Counsel bears the burden of establishing each and every element of an alleged unfair labor practice in order to establish a violation of the Statute).
Further, the record contradicts the General Counsel's argument that there is no evidence supporting a conclusion that the memorandum at issue did not meet the Respondents' standard. In asserting that "the evidence . . . does not support a finding that standards or a policy was ever applied," GC's Exceptions at 16, and that reliance on the policy by the Judge is "after-the-fact," id., the General Counsel does not take into account the message that the Respondent sent to explain its actions. The February 2 message to the Union states that on January 29 a derogatory message was removed, and that subsequently another was removed for the same reason. Although "derogatory" messages are not explicitly included in the policy statement, the Judge explains that calling Cannon "an insulting name, in a derogatory manner . . . was annoying, constituted harassment and was offensive[.]" Judge's decision at 13.
In these circumstances, we find that the General Counsel did not establish by a preponderance of the evidence that the Agency removed the material contrary to its established standards. As such, we conclude that removal of the material did not violate section 7116(a)(1). [n6] Consequently, we order that this allegation of the complaint be dismissed.
C. The Judge Did Not Address An Allegation That Was Properly Before Him
On its face the complaint's reference to the removal of "two notices" is ambiguous, and might refer either to the notice on staffing, which was posted twice, or to the twice-posted staffing notice as the first notice, and the Partnership Council notice as the second. For the following reasons, we conclude, in agreement with the General Counsel, that the record establishes that the alleged removal of the Partnership Council posting was litigated and should have been addressed by the Judge.
First, at the hearing, testimony by the Union included detailed reference to removal of the Partnership Council posting, as one of "these two items[.]" Tr. [ v55 p1315 ] 35. When asked about the "materiality" of testimony about the Partnership Council, the General Counsel answered, "There's an additional item that was removed from the union's electronic bulletin board and that items [sic] involves issues surrounding partnership and I was trying to just set the context for that." Id. at 28.
Second, both the General Counsel and the Respondent addressed this allegation to the Judge as a separate issue. The General Counsel's brief to the Judge contains the following statement:
[T]he Respondent directed Major Mingo to remove two items from the AFGE electronic bulletin board. Cooper testified that she posted the message concerning the placement plan twice and both messages were removed, and that she posted the message concerning the Partnership Council once and that message was removed. Major Mingo testified only that he removed the two items concerning the placement plan. However, Cooper's testimony concerning the Partnership Council message indicates that that item, posted on February 2, 1998, was also removed. Mingo's cc-mail message written on February 2, 1998 indicates that he was directed to remove that message.
GC's post-hearing brief at 18.
The Respondent's post-hearing brief refers to both postings, in defending the ULP. It argues that
the tone and nature of General Counsel's Exhibits 5 and 9 [the staffing e-mail and the Partnership Council e- mail, respectively] were such as to be harmful to the good order and discipline of . . . military personnel [assigned to the Activity.]
Respondent's post-hearing brief at 9.
Based on both the testimony at the hearing and the post-hearing briefs, we conclude that the Respondent knew what was at issue, and had a fair opportunity to present a defense. In these circumstances, we find that the issue of improper removal of the Partnership Council posting was litigated, and is before the Authority.
D. The Allegation Concerning the Partnership Council Posting Is Remanded To the Judge
We have found that the allegation that the Respondent violated section 7116(a)(1) by removing the Partnership Council posting is before the Authority. It remains to be determined whether the General Counsel has established by a preponderance of the evidence that the posting violated established agency policy. If the posting did not violate agency policy under the rule of Scott, removal where a right of access has been established would be a violation of 7116(a)(1) of the Statute because such action would reasonably tend to discourage union activity.
Because the Judge did not address the allegation that the removal of the Partnership Council posting violated the Statute, the Authority does not have the benefit of the Judge's findings concerning the reason for the removal of the posting, and whether it was removed because it did not meet the Respondent's established standards. Accordingly, we remand the allegation concerning removal of the Partnership Council posting to the Judge to consider the reasons for its removal, and whether and how it was contrary to the Respondent's established standards.
The allegation that the Respondent violated section 7116(a)(1) of the Statute when it removed the Partnership Council posting from the electronic bulletin board is remanded to the Judge to determine the reasons for its removal, and whether and how it was contrary to the Respondent's established standards.
The remainder of the complaint is dismissed. [ v55 p1316 ]
Chair Phyllis N. Segal, concurring,
I write separately to briefly note two things. First, the charge filed by the Union alleged that the implementation of the disputed screening procedure constituted a "change in a past practice without notification to the Union". GC Exh. 1(a). This claim, if established, would support a violation of section 7116(a)(1) and (a)(5) of the Statute. As this claim was not litigated, however, it is not properly before the Authority for resolution. Second, the General Counsel relies in this case on the Authority's decision in Department of the Air Force, Scott Air Force Base, 34 FLRA 1129 (1990), without requesting that it be clarified or modified in any way. See GC Exceptions at 17. There is no occasion, therefore, to address whether this precedent correctly construes and applies section 7116(a)(1) of the Statute.
File 1: Authority's Decision in 55 FLRA No.
211 and Chair Segal, concuring
File 2: ALJ's Decision
Footnote # 1 for 55 FLRA No. 211 - Authority's Decision
Footnote # 2 for 55 FLRA No. 211 - Authority's Decision
Footnote # 3 for 55 FLRA No. 211 - Authority's Decision
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In reaching this conclusion, we reject the Respondent's argument that the ULP must be barred because the only "plausible basis" for the grievance is the same as that advanced for the ULP. As we stated above, the grievance and the ULP were based on different theories, irrespective of whether the theory underlying the grievance lacked merit.
Footnote # 6 for 55 FLRA No. 211 - Authority's Decision