DEPARTMENT OF THE AIR FORCE U.S. AIR FORCE ACADEMY, COLORADO and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1867
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
Office of Administrative Law Judges
WASHINGTON, D.C. 20424-0001
MEMORANDUM DATE: June 11, 2008
TO: The Federal Labor Relations Authority
FROM: PAUL B. LANG
Administrative Law Judge
SUBJECT: DEPARTMENT OF THE AIR FORCE
U.S. AIR FORCE ACADEMY, COLORADO
AND Case No. DE-CA-07-0305
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1867
Pursuant to section 2423.34(b) of the Rules and Regulations 5 C.F.R. §2423.34(b), I am hereby transferring the above case to the Authority. Enclosed are copies of my Decision, the service sheet, and the transmittal form sent to the parties. Also enclosed are the transcript, exhibits and any briefs filed by the parties.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
Office of Administrative Law Judges
WASHINGTON, D.C. 20424-0001
DEPARTMENT OF THE AIR FORCE
U.S. AIR FORCE ACADEMY, COLORADO
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1867
Case No. DE-CA-07-0305
NOTICE OF TRANSMITTAL OF DECISION
The above-entitled case having been heard by the undersigned Administrative Law Judge pursuant to the Statute and the Rules and Regulations of the Authority, the undersigned herein serves his Decision, a copy of which is attached hereto, on all parties to the proceeding on this date and this case is hereby transferred to the Federal Labor Relations Authority pursuant to 5 C.F.R. §2423.34(b).
PLEASE BE ADVISED that the filing of exceptions to the attached Decision is governed by 5 C.F.R. §§2423.40-41, 2429.12, 2429.21-2429.22, 2429.24-2429.25, and 2429.27.
Any such exceptions must be filed on or before
July 14, 2008, and addressed to:
Office of Case Control
Federal Labor Relations Authority
1400 K Street, NW., 2nd Floor
Washington, DC 20424-0001
PAUL B. LANG
Administrative Law Judge
Dated: June 11, 2008
FEDERAL LABOR RELATIONS AUTHORITY
Office of Administrative Law Judges
DEPARTMENT OF THE AIR FORCE
U.S. AIR FORCE ACADEMY, COLORADO
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1867
Case No. DE-CA-07-0305
Hazel E. Hanley
For the General Counsel
Maj. Timothy J. Tuttle
For the Respondent
Before: PAUL B. LANG
Administrative Law Judge
Statement of the Case
This case arises out of an unfair labor practice charge (GC Ex. 1(a)) which was filed on March 13, 2007, by the American Federation of Government Employees (AFGE), Local 1867 (Union) against the U.S. Air Force Academy. On January 24, 2008, the Regional Director of the Denver Region of the Federal Labor Relations Authority (Authority) issued a Complaint and Notice of Hearing (GC Ex. 1(b)) against the Department of the Air Force, U.S. Air Force Academy, Colorado (Respondent or Academy). In the Complaint it was alleged that the Respondent committed an unfair labor practice in violation of §7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (Statute), by changing a past practice of providing base taxi service to and from the Union office for Union representatives and members of the bargaining unit represented by the Union. It was further alleged that the change was implemented without prior notice to the Union and without providing the Union with an opportunity to bargain
over the change. On February 15, 2008, the Respondent filed a timely Answer (GC Ex. 1(e)) in which it denied that it had committed an unfair labor practice.
A hearing was held in Colorado Springs, Colorado on March 20, 2008. The parties were present with counsel and were afforded the opportunity to present evidence and to cross-examine witnesses. This Decision is based upon consideration of the evidence and of the post-hearing briefs submitted by the parties.
Positions of the Parties
The General Counsel maintains that, on or before January 25, 2007, there was a past practice whereby the Respondent's employees were allowed to use the base taxi service for trips to and from the Union office. The use of the taxi service was necessary because the Union office is approximately five miles from the work stations of bargaining unit members. It is not feasible for employees to use their own automobiles because employee parking is at a premium and the Respondent has encouraged the formation of car pools. Employees using their own automobiles to go to and from the Union office would lose their parking places. During the course of contract negotiations the Union dropped the subject of special parking spaces for Union representatives upon assurance by Respondent's representatives that they could use the taxi service.
According to the General Counsel the Respondent terminated the past practice on or about January 25, 2007, when a Union steward was refused taxi service from the Union office to his work station. Since that time, the Respondent has refused repeated requests for taxi service to and from the Union office. The Respondent did not provide the Union with advance notice of the change in conditions of employment and did not answer a request by the Union for bargaining over the termination of the past practice. By the Respondent's actions it has violated its statutory duty to negotiate in good faith.
The Respondent denies that the alleged past practice ever existed. The Respondent further maintains that the General Counsel has failed to support her burden of proof that taxi service to and from the Union office was provided other than in isolated incidents. Such incidents were neither authorized by nor known to responsible management representatives of the Respondent. Accordingly, the Respondent has no duty to bargain over the alleged change.
Summary of the Evidence
The nature of a past practice is such that the evidence of its existence is often anecdotal. The General Counsel submitted the following testimony on that issue:
Sterling Hiibschman. Hiibschman became an employee of the Respondent in 1994. He has been the President of the Union since March 3, 2005, and prior to that time, he was a steward and the First and Second Vice President. As President Hiibschman is on 100% official time (Tr. 12). Hiibschman identified a map of the Academy which is on its website (GC Ex. 4). According to Hiibschman the Union office1 is located on the east side of the Academy grounds about a quarter of a mile from the intersection of Stadium Boulevard and Academy Drive and near the notation "Sand Barn" on the map. The Union office is four or five miles from the Cadet Area and approximately the same distance from the Civilian Personnel Office which is in the Community Center located in the central portion of the Academy grounds (Tr. 14).
Hiibschman testified that he used the taxi service extensively before he went on 100% official time and was working in Mitchell Hall.2 He used the taxi service whenever he was on official time, which, between 1997 and 2005, was between two and three times a week (Tr. 15, 16). He knows that management officials were aware that he was using the taxi service since he often told them that he was late returning to work because he had to wait for a taxi. He has seen taxis dropping off employees at the Union office (Tr. 17). In preparation for the hearing, Hiibschman reviewed his appointment calendars (they were not offered in evidence) and found that he used the taxi service to travel to and from the Union office on January 10, 2005, and February 16, 2005. In both instances he requested official time from his supervisor (Tr. 18). Neither of those trips is shown in the records provided by the Respondent as part of its prehearing disclosure (Tr. 18, 19).3
In further preparation for the hearing, Hiibschman reviewed a memorandum from Major John C. Tobin, Acting Chief, Manpower, Organization and Quality for the Respondent, (Resp. Ex. 9) which was included with the Respondent's pre-hearing disclosure. In this memorandum, the Respondent sought the Union's agreement to the cancellation of a number of memoranda of understanding (MOUs) pursuant to the implementation of the Most Efficient Organization (MEO) program.4 The Union agreed to the cancellation of the listed MOUs, none of which pertained to taxi service (Tr. 19, 20).
Hiibschman knows of no MOU between the Union and the Respondent concerning taxi service because it was never considered a problem. It was always assumed that a taxi would be available for "official business", which included Union business. Hiibschman cited Article 20, Section C of the collective bargaining agreement (CBA) (GC Ex. 2, p. 39) which states that, "Past practices remain in effect unless and until notice and bargaining obligations have been completed." (Tr. 20).
Hiibschman never received notice that the taxi service to the Union office was going to be terminated. He first learned of the change on January 25, 2007, when Roland Gallegos, a Union steward, got a taxi ride from Mitchell Hall to the Union office; when Gallegos called for a ride back he was told that he had the wrong number. Willy Rosaya, the Second Vice President, then called the dispatch office and was told that they "no longer" provided rides to and from the Union office (Tr. 20, 21).
After speaking with Gallegos and Rosaya, Hiibschman called Dwayne Clewell, the dispatchers' first line supervisor. Clewell informed him that Bobby Speights, the second line supervisor, had stated that activities carried out on official time were considered to be personal business for which the use of the taxi service was not permitted (Tr. 22).
On February 6, 2007, Hiibschman sent an e-mail to
Clewell, Speights, Terence Berger, Eddie Queen, Charlie Dye and Larry Moore, as well as to Rosaya and Gallegos (GC
Ex. 3)5 in which he stated:
On January 25, 2007[,] Mr. Gallegos requested a taxi from the union hall back to his work area as he had been doing official business at the union. Mr. Gallegos was denied access to the taxi services by Dwayne Clewell who stated to me later in a telephone conversation that when stewards are on official time at the union that is different than official business but instead is personal business. I then asked Mr. Clewell who made this determination and definition of official time. I also articulated that official time is only given in the connection with official business. One must be on official time to do official business. Mr. Clewell said that Mr. Speights had made this determination and that is how it is. I indicated that this is a change in conditions of employment and that I personally took the taxi service to and from my workplace many times before becoming the President of the local. Please see that this matter is corrected immediately or we will pursue relief through FLRA. Thanks in advance!
Hiibschman received no response to his message (Tr. 22-24).
On cross-examination Hiibschman acknowledged that his statement about using the taxi service twice a week was a "guesstimate". He also admitted that there are no written records of his requests for taxi service. He explained this by stating that he did not have access to e-mail at Mitchell Hall, but acknowledged that he had such access at the Union office. However, he did not generate a paper trail because he did not anticipate that the use of taxi service would become an issue (Tr. 26-28).
Roseanne Pedrosa. Pedrosa has been employed by the Respondent since 1998. In 2000 she injured her hand and used
the taxi service to take her to the hospital and to the
Civilian Personnel Office where she filed a workers' compensation claim (Tr. 30, 31).
The next time Pedrosa needed a taxi was in midsummer of 2007. She had filed a grievance and had an appointment to discuss it at the Union office. When she called for the taxi she was told, "No, ma'am, we don't go down there anymore." Pedrosa described her experience to Les Clayter, a co-worker; Clayter called for a taxi and was told the same thing (Tr. 32-34).
On cross-examination Pedrosa testified that she had no documentation regarding her taxi ride in 2000 (Tr. 35).
Leslie Clayter. Clayter is a member of the bargaining unit but is not a Union member. He verified that he called for a taxi at Pedrosa's behest and that he was told that the policy had changed (Tr. 37, 38).
Clayter has never used a taxi to get to the Union office. He did use a taxi about two years ago to go to the base hospital for a hearing test. He did not find a notation of his taxi ride on the records provided by the Respondent, but acknowledged that the log entries do not include the names of passengers (Tr. 38-41).
Tammy Howard. Howard has been employed by the Respondent since 1995 as an accounting technician. She has on several occasions requested taxi service to the Union office and was told that the taxi service was for official business only. After arguing with the dispatcher, she would request an e-mail documenting the refusal so that she could claim reimbursement. At that point she would be provided with taxi service. Howard checked the dispatch logs for 2007 and could find no record of any taxis picking up passengers at Harmon Hall (where she worked) for trips to any destination (Tr. 47, 48).
On April 24, 2007, Howard called for a taxi to the Union office. It was sleeting and snowing at the time and she was told that she could only get a taxi if she walked across an area known as the Terrazo to the Cadet Clinic. According to Howard the Terrazo is slightly longer than a football field. When she arrived at the Cadet Clinic she could not find a taxi stand, but noticed a taxi. The driver asked her what she was doing there and when she said that she was told that this was
the only place where she could get a taxi, he told her that
they would have picked her up. Howard was under the
impression that the taxi did not come in answer to her call, but just happened to be there (Tr. 49-51).
On July 6, 2007, Howard obtained a taxi to take her to an appointment at the Union office. After the meeting she called to get a taxi back to her work station and was told that they did not provide service to the Union office. Howard told Queen about the problem. Queen spoke with several different people on the telephone and eventually got a taxi for her. Howard checked the dispatch log and found nothing to show that she had taken a taxi on that date (Tr. 51, 52).
On March 5, 2007, Howard called for a taxi to take her to an appointment at the Civilian Personnel Office in order to discuss a grievance and an EEO complaint. She had to argue with the dispatcher over the definition of official business, but eventually got taxis to and from her destination. Again, she did not see any record of those trips in the dispatch log (Tr. 52).
On August 16, 2007, Howard's supervisor informed her that Berger indicated that she had an appointment at the Union office. When she called for a taxi the dispatcher told her that they no longer serviced the Union office. She then spoke to someone named Tyrone who told her that the policy had changed about a month before. When she asked for an e-mail to that effect she was given an address to send an e-mail. She did so, but never received a reply. Several days later she spoke to Speights who told her that they no longer serviced the Union office and that he was not going to send her an e-mail. He also told her that she would have to speak to Mr. Berger if she wanted taxi service to the Union office (Tr. 52-54). Howard did not say whether she ever spoke with Berger.
Howard identified an e-mail that she sent to Queen on August 22, 2007, in which she described her interaction with Speights (Tr. 54; GC Ex. 5). In the e-mail Howard wrote:
. . . He [Speights] told me "We do not service the union office and never should have, and if I ever got a base taxi to the union office it was against his orders." . . . .
Howard's e-mail message directly contradicts her testimony that Speights implied a change in policy with regard to the
use of taxi service by the Union. Consequently, I do not credit her testimony that Speights implicitly acknowledged the existence of the alleged past practice.
Howard further testified that she had a grievance in 2006 and took the base taxi to the Union office "all the time" (Tr. 55). In response to my question, Howard stated that she took
a taxi between 15 and 20 times in 2007 and that 15 of those trips were to and from the Union office (Tr. 62). She gave no dates for those trips.
On cross-examination Howard acknowledged that none of her taxi rides were on the dispatching log and that, in the majority of cases, she was told that she could not use the taxi on Union business (Tr. 56). She also acknowledged that she usually spoke with someone named Walt. Her drivers were Mr. Gonzalez, Mr. Torrell and, on one or two occasions, someone with an English accent. Of the 15 trips that she remembered taking in 2007, Gonzalez drove on about 10, Torrell on three or more and the "British gentleman" on about 2 (Tr. 57-59).
Willy Rosaya, Jr. Rosaya is the Second Vice President of the Union and has worked for the Respondent since 1985 as a coach driver (Tr. 65). He is assigned as a taxi driver every day or every other day when he is not driving a bus or between bus runs. There are currently four regular taxi drivers, down from five. The numbers of taxis and drivers are not such as to keep the drivers and vehicles busy at all times (Tr. 67, 68).
According to Rosaya, he receives a trip ticket in the morning by which he is informed if he is to make taxi runs. After he makes each run he records the number of passengers on the trip ticket and, at the end of the day, deposits the trip ticket in a locked box in the break room. The next morning one of the dispatchers, usually Mr. Johnson, takes the tickets and enters the information into the computer. This procedure is only used for taxi runs that have been scheduled in advance. It does not apply to cases when the driver is assigned to a run that was not previously scheduled. He does not know if all of the information is sometimes not entered in the computer. That might occur when a taxi run which has not been previously scheduled is dispatched over the radio. He does not complete any paperwork for such runs (Tr. 68-71).
In January of 2006, Rosaya requested official time from his first line supervisor and had Timothy Stuehmeyer
(presumably a driver) take him to and from the Union office. Rosaya verified his recollection with Stuehmeyer but did not see those rides recorded on the log for 2006 (Tr. 70, 71).
Rosaya also testified concerning an incident in January of 2007 involving Roland Gallegos, a Union steward. Rosaya was working in the Union office when Gallegos was present. He gave Gallegos the telephone number of the dispatch office;
Gallegos dialed the number and was told that it was the wrong number. He then dialed again and was told by Russ Johnson that they no longer provided taxi service to the Union office. Rosaya got on the telephone and was told the same thing by Johnson. Rosaya then spoke to Clewell who also told him that they did not provide service to the Union office. Apparently Clewell did not imply that this was a change in past practice (Tr. 71, 72).
Later that month Clewell told Rosaya that he did not have a driver to take him to the Union office. Since that time Rosaya has used his personal vehicle so as to avoid a confrontation with Clewell; this amounts to one or two round trips each week (Tr. 72, 73).
When challenged on cross-examination as to why the purported lack of a driver for a previously requested run would provoke a confrontation if he requested a subsequent run, Rosaya would only say that, "you have to know Mr. Clewell" (Tr. 78). I do not credit this testimony since it makes no sense. Instead, I assume that Rosaya knew that Clewell would not authorize a taxi run to or from the Union office.
Rosaya stated that, in reviewing the dispatch logs, he did not find any notations of the identities of taxi passengers. He did, however, find a notation showing that a passenger had been delivered to the Union office (Tr. 74).
On cross-examination Rosaya admitted that he has never taken a passenger to the Union office. He has heard taxi drivers being dispatched over the two way radio but does not know whether the request for the taxi came in by telephone or by e-mail. When questioned as to whether Clewell or Speights ever authorized taxi service to the Union office, Rosaya answered that they would have because the dispatchers "represent management" and Clewell and Speights would know
about such trips. Rosaya further stated that he knew that the dispatchers were in the bargaining unit, but that Speights and Clewell had stated that the drivers had to do what the dispatchers told them because they represent management (Tr. 75-78).
In response to my question Rosaya stated that he could not have driven himself to the Union office with a spare vehicle because his supervisor had said that they were not allowed to do so (Tr. 83).
On redirect examination Rosaya testified that Clewell and Speights had two way radios which they would keep on and that Moore and Dye also had radios. Consequently, Rosaya assumed that the supervisors would have heard taxis being dispatched to the Union office (Tr. 84).
Eddie Queen. Queen has been employed by the Respondent since 1974 and is currently a coach operator and the First Vice President of the Union (Tr. 87, 89). Since becoming a Union steward in 1975 Queen has used the taxi service to conduct Union business and has done so with the knowledge of management representatives. All of the waiter supervisors at Mitchell Hall were aware of this practice because he would use their telephones to call for taxis. Steve Furman, who preceded Berger as Labor Relations Officer, would see him getting out of a taxi at the Union office. Karen Christianson, the EEO manager, has seen him getting in and out of taxis.6 Berger has seen him getting out of a taxi at Mitchell Hall. He would use the taxi service on an average of three times a week7 (Tr. 90, 91).
Queen testified that he has been assigned as a taxi driver. The dispatcher would call him to the office and assign him to a run. He would receive his assignments from Phillip Patterson, Tyrone Smith and Russ Johnson. He does not give a passenger any type of paperwork, nor does he record the nature of the trip, the name of the passenger or the destination. The coach operators only log their bus runs on the trip tickets. Under a prior system the taxi drivers would record their runs on a form 868 (Tr. 91-93).
In May of 2007, a computer changeover was taking place at the Union office which involved government computers. Queen called the dispatch office and spoke to Johnson regarding a taxi ride to the computer center and back to the Union office so that he could pick up some equipment. Johnson told him that they did not support the Union anymore. Queen then called Dye who arranged for a taxi. That run does not appear in the dispatch log (Tr. 94-96). In early July of 2007 he became aware of Howard's problem obtaining a taxi. He spoke to Moore who arranged for a taxi; that run was not recorded in the dispatch log. Queen spoke with Moore after the incident with Howard, at which time Moore told him that it was illegal to provide taxi service to the Union and that he never would have authorized it (Tr. 96-98).
Queen testified that the transportation supervisors monitor the dispatch radio frequency virtually all of the time. He based that assertion on the fact that they could be reached on the radio (Tr. 98, 99).
Queen also testified that between 25 and 30 percent of his average of three weekly taxi runs on Union business were to the Union office. The dispatchers never questioned him as to the purpose of a trip when he called for a taxi to some place other than the Union office (Tr. 101, 103).
On cross-examination Queen acknowledged that he never took anyone to the Union office. He also maintained that Patterson, Smith and Johnson had dispatched drivers to the Union office and that, until the early part of 2007, such service had not been denied (Tr. 109). He also admitted that, other than on one occasion involving Howard, Moore had never approved taxi service to the Union office and that Berger had seen him getting out of a taxi in the late 1990's (Tr. 111).
Phillip Patterson. Patterson has been employed by the Respondent since 1994. He has been on a detail as a warehouseman since December of 2006, and before that he was the lead dispatcher, reporting to Clewell, Speights, Moore and Dye (Tr. 115-117). When he was lead dispatcher a person wanting a taxi would call the dispatch office. At one time, a representative of the dispatch office would complete a form 868 with the name of the person calling, that person's unit, the pickup location, time of pick up and destination. The form 868 was eventually replaced by OVIM, the Online Vehicle Management System. Patterson entered pertinent data in OVIM. Every taxi dispatch was recorded to the extent possible, but it depended on whether the drivers turned in their trip tickets. The purpose of the system is to keep track of the
drivers' time and of the vehicles. The system is not designed to determine who was using the taxi service or where the taxis were going. Taxi runs might not be entered into the system if a driver was late in turning in a trip ticket or if dispatch office personnel were busy with other activities (Tr. 117-19).
Patterson testified that he would enter the data into the system and would run tallies of mileage at the end of each day and each week. The tallies were needed for the "war report"
which enabled management to determine which vehicles needed maintenance. He acknowledged that he had been counseled by Clewell for not properly entering data, but denied that he was at fault because he was the only one entering data and would sometimes become overwhelmed. According to Patterson, OVIM entries could be changed and deleted (Tr. 119-21).
Patterson further testified that, as a Union steward, he used the taxi service on Union business; this included trips to various locations including the Union office. He dispatched taxis to the Union office "all the time". Management representatives could hear the dispatching to the Union office on their radios, but he was never told that trips to and from the Union office were unauthorized. Clewell usually carried his radio with him and could have heard the dispatches if it was turned on. Speights kept a radio on his desk which was usually turned on (Tr. 123-25).
According to Patterson, he first encountered a problem with taxi service in January of 2007. He was at the Union office with Gallegos, Queen and others when "Roland" (presumably Gallegos) stated that he needed a taxi to get back to his work station at Mitchell Hall. Patterson told him to call the dispatch office and, when he did so, he was advised that they no longer provided service to the Union office (Tr. 125).
Patterson also described an occasion when he was helping Howard with an EEO complaint. Howard had arrived at the Union office by taxi and they then took a taxi to the EEO office. After their business had been concluded, Patterson called for a taxi back to the Union office. After waiting for about
45 minutes he called the dispatch office to ask when the taxi was coming. Eventually, Patterson spoke to Clewell and, he thinks, to Speights after which he got a taxi to the Union office (Tr. 125-27). Patterson has not used the taxi service since that time, but has used the UDI service. This is a program by which a "you drive it" government vehicle is issued
to an employee after his or her request has gone up the chain of command for approval and upon presentation of a civilian driver's license. The assignment of UDI vehicles is entered in the dispatch log, but not as a taxi run (Tr. 127-30). Patterson did not state whether he had been authorized to use a UDI vehicle for trips to and from the Union office.
On cross-examination8 Patterson stated that he entered all taxi runs into the OVIM system and that he has no knowledge of any of the runs having been deleted from the system. He also testified that he dispatched all of the runs to the Union office over the radio. He never asked Speights for permission to do so and acknowledged that Speights never approved taxi runs to the Union office (Tr. 132-35).
On redirect examination Patterson testified that he did not have the discretion of denying anyone a taxi ride. He was once told this by Moore when he questioned whether he should dispatch a taxi to take someone to the base golf course (Tr. 135-37).
Barry Jencson. At the time of the hearing Jencson was a food service worker for the Respondent but, before that, was employed as a taxi driver. At various times Speights and Clewell were his first line supervisors, although Speights later became his second line supervisor. Moore and Dye were, respectively, his third and fourth line supervisors. Jencson stated that he would make from 5 to 15 taxi runs per day. He was sometimes dispatched to take employees to the Union office. His radio communications were mainly with the dispatchers; Clewell and Speights were "very seldom" on the radio (Tr. 141-43).9
In preparation for the hearing Jencson reviewed the taxi dispatch records provided by the Respondent for 2002 through 2006, the period during which he was a taxi driver. According to those records, he made about 100 runs in each of those
years in spite of the fact that he did not work much in the
last year. In reviewing the dispatch records, Jencson noted that the driver's name does not appear for all of the taxi runs and it is possible that some of those runs were made by him. Jencson was not concerned about accounting to his supervisor for his time and noted that on some days they did not use dispatch slips (Tr. 143-45).
On cross-examination Jencson acknowledged that, although some of his dispatches to the Union office came over the radio, for some "we had slips". He also admitted the possibility that Patterson sometimes merely told him to make a pickup at the Union office although his memory was hazy as to this point. He did state that, in general, "A lot of times I was just told to go make a run." Jencson dealt with his dispatcher and, to the best of Jencson's knowledge, Speights did not authorize any of his trips to the Union office (Tr. 146-48).
Richard DiBiasio. DiBiasio has been employed by the Respondent since 1988 as a food service worker in Mitchell Hall and has been a Union steward since around 1990. DiBiasio receives official time upon request. In counseling employees he tries to hold initial meetings in an informal dining room in Mitchell Hall, but about 55% of his meetings are in the Union office where he has access to a computer and records. DiBiasio travels to the Union office either in his own vehicle or by taxi. In the past three or four years he would use the taxi service if he were released to do Union business in the middle of the day and had to return to work. This is so because he did not want to lose his parking space and also wanted to save money (Tr. 151-53).
DiBiasio stated that he knew that his first line supervisor was aware that he was taking the base taxi because he had an arrangement with him whereby he (DiBiasio) would take his official time toward the end of his shift, thus avoiding the delay associated with the use of the taxi service.10 DiBiasio's last use of a taxi on Union business was about a year prior to the hearing. The trip was to the Oracle Building rather than to the Union office. That trip does not
appear in the dispatch log. He has used the taxi service for trips to the Union office about 20 times over the years (Tr. 153-56).
Michael Little. Little began work for the Respondent as a temporary employee in late 1976 or early 1977. He attained permanent status in or around March of 1977. He left the Respondent's employment in 1997 at which time he had the title of Master Gardener. He was the President of the Union from
April 1, 1989, to December 8, 1997, when he became a national representative for AFGE. Prior to serving as President, Little was First Vice President and, before that, a steward (Tr. 158, 159).
Little testified that, although convenient parking was not available at all of the buildings where bargaining unit members worked, it was not a serious concern for him because Steve Furman, the head of Human Relations or Employee Relations for the Respondent, said that the Union could use the taxi service (Tr. 159, 160).
Little further testified that, when he became President of the Union, there was no Union office on the Academy grounds. After about three years Little and Furman negotiated the establishment of a Union office on base. At that time the Union office was on the flight line. Little often looked through his office window and saw employees arriving and leaving by taxi. He also saw Joseph Becker, the previous President, leave the area where they were both working and take a taxi to the Union office. According to Little, a number of management representatives in Employee Relations knew that Becker often took taxis. Little saw various Union stewards taking taxis to the Union office. In addition, a number of Union stewards would use the taxi service to take them from Jack's Valley11 to and from the Union office (Tr. 161-64).
Little also testified that when he participated in negotiations with the Respondent over a collective bargaining agreement (CBA), the Union's proposals did not address the use of the taxi service. However, according to Little, all of the people he dealt with in the Respondent's personnel department knew that the taxi service was being used for trips to and from the Union office and for other Union business. Little
did not press his proposals for reserved parking spaces because Furman assured him of the availability of the taxi
service. Furthermore, R. Steven Boothee, a dispatch supervisor, was aware that the taxi service was frequently used for trips to and from the Union office. Boothee had formerly been a taxi driver and a Union steward (Tr. 166, 167).
On cross-examination Little acknowledged that his testimony was based upon events which occurred prior to 2002 (Tr. 168).
The Respondent presented the following witnesses:
Bobby Earl Speights. Speights became the Dispatch Supervisor around April of 2004 and Vehicle Operations Manager in June of 2005. As such, he is responsible for all ground transportation services. According to Speights, the Union is not allowed to use the base taxi service since the service is only for official government business. The policy was in effect when he became Vehicle Operations Manager. Speights further stated that he had been involved in vehicle operations for 34 years, including his military service, and that during that time Union use of official vehicles was not allowed (Tr. 173-75).
Speights testified that he was aware of an incident in 2007 in which someone wanted (and presumably obtained) taxi service for Union business and two incidents in 2006 in which the Union obtained taxi service; those incidents did not occur with his knowledge or authorization. He suspects that dispatchers sent taxi drivers to provide such service. Those taxi runs should have been logged into the OVIM system. Speights identified taxi dispatch logs (Resp. Ex. 1-8) which he personally printed out from the OVIM system. He found only two entries of trips to the Union office, both of which occurred in February of 2006 (Tr. 175-77).
Speights explained the meaning of each of the headings in the OVIM logs as follows:
CAT - the category of the run (01 denotes taxi runs, which are the only ones shown on the printouts in this case)
CON NUMBER - the confirmation number which is automatically assigned to each run
OFFICE SYMBOL - the office symbol of the requester's workplace
STAT CODE - a code showing that it is a vehicle run
PICKUP LOCATION - where the passenger is to be picked up
DEST - where the passenger is going
TIME REQ - when the passenger wants to be picked up
PAX - the number of passengers
TIME DSP - the time when the taxi was dispatched
TIME ARV - the time of arrival at the pickup point
TIME PU - the time of the actual pickup of the passenger(s)
TIME REL - the time of release, i.e., arrival at the destination
RESP TIME - the time span between the call to the dispatch office and the pickup
TIME SRV - the total time of service from dispatch to the end of the run
REG NBR - the vehicle registration number
OPER - the name of the driver
OVIM is used throughout the Air Force for the management of all types of vehicles (Tr. 180-82).
Speights further testified that he created the computer run so that it would reflect only the taxi service for the relevant time periods and that he did not remove any data from the system. Most of the data as to the taxi runs is entered by dispatchers who are members of the bargaining unit. However, data is sometimes entered by Clewell, who is the supervisor (Tr. 183, 184). Customers have been asked to
request taxi service by e-mail, but requests are also accepted by telephone. All requests should be entered into the OVIM system. The taxi drivers receive their instructions from the dispatchers, sometimes over the radio, but often in person when the drivers are sitting in the break area (Tr. 184, 185).
Speights stated that he knows that certain types of runs were not entered into OVIM. Those were trips in which a driver was taken by another driver in connection with the movement of a government vehicle to or from a repair shop outside of the base. When Speights was a Dispatch Supervisor he instructed the drivers to record the pertinent information on the form 868 if they were too busy to enter the data into OVIM. In this way the dispatchers could later log in the information on the runs. Speights also stated that he
suspected that there had been trips to the Union office that had been dispatched in the break room and had not been logged in. The only way that he would know of such runs would be over the radio if a driver reported his location at the end of
a run or if he overheard a radio conversation about a run to or from the Union office. He does not monitor every taxi run. He has a radio in his office which he neither carries with him nor keeps on all of the time.
Speights further stated that he is aware of only one trip to and from the Union office. That was an instance in which the hospital shuttle was diverted to transport Howard; it was not considered to be a taxi run. Speights has never authorized a taxi run to or from the Union office, although he has allowed vehicles to stop at the Union office while proceeding to or coming back from previously scheduled trips to other locations. There were no passengers involved in such occasions, and the drivers themselves wanted to stop at the Union office. Speights mentioned one occasion when he granted such a request by a bus driver. According to Speights, he allowed the stop because he was told that there was a controlling memorandum of understanding. Later, when no memorandum of understanding was produced, he stated that there would be no such permission in the future (Tr. 185-90).
In response to my question, Speights stated that the recorded runs of individual vehicles are not regularly checked against odometer readings to determine if the mileage is inconsistent with the recorded runs (Tr. 192-94).
On cross-examination Counsel for the General Counsel directed Speights' attention to various log entries in which the number of passengers was obviously excessive: for example,
and 1500 in a third (Resp. Ex. 6, p. 21).14 In one entry for
September 28, 2004, there is no entry showing the number of passengers for a taxi run that apparently lasted for more than ten hours (Resp. Ex. 5, p.22, top entry)15 (Tr. 198-204).
Speights was also directed to numerous examples of incomplete entries.
Upon further cross-examination Speights stated that management officials in the transportation department do not monitor the radio throughout the day (Tr. 204, 205). He also acknowledged that a great deal of information was missing from the records, such as vehicle registration numbers and names of drivers, but that he depends on the dispatchers to log data into the system. According to Speights, he has counseled two dispatchers for failure to put all of the correct data into the OVIM system. When challenged as to the accuracy of the OVIM report that reflected only 102 taxi runs by Jencson in 2006, Speights opined that the figure could be accurate since Jencson and other drivers are assigned to clean vehicles, sometimes for an entire day, when they are not driving (Tr. 205, 206).
Counsel for the General Counsel confronted Speights with two entries showing that Richard Gonzales, one of the taxi drivers, made two trips to the Union office on February 6 and 13, 2006 (Resp. Ex. 7, pp.4 and 5). Speights acknowledged that he took no action against Gonzales when he learned of the taxi runs (Tr. 207, 208).
On redirect examination Speights testified that the OVIM system is used primarily for manpower and budgetary purposes.
He does not review the records every day because he does not
have time and relies upon the dispatchers to "QC" (presumably, quality control) the data that goes into the system. In 2006 Patterson, as the dispatcher, was primarily responsible for logging data into OVIM. Speights stated that he had conversations with Patterson about Patterson's failure to properly log in data and also sent him a note on the subject. Speights denied having advance knowledge of Gonzalez' trips to the Union office. Any disciplinary action would have been directed to Patterson, since the drivers follow the dispatchers' instructions (Tr. 209, 210).
With regard to the obvious errors in numbers of passengers that were pointed out during cross-examination, Speights stated that they were the result of "fat fingering", or typing errors. Speights further stated that, when he noticed such errors, he mentioned them to the dispatchers. Speights explained one of the entries which showed 26 passengers (see supra note 13) as representing multiple trips to the Cadet Clinic (Tr. 210-12).
Dewayne Clewell. Clewell has been employed by the Respondent since 2002. He is now the Vehicle Dispatch Supervisor and has been involved with the taxi service since 2006. As Vehicle Dispatch Supervisor, Clewell oversees day-to-day operations, including the dispatching of drivers and the entry of data into OVIM. According to Clewell, the Union's use of the taxi service is unauthorized since activities on official time are considered personal business that does not support the mission of the Air Force. He bases this assertion on AFI.16 This has been the policy since Clewell arrived at the Academy. He knows of no incidents involving taxi service to the Union office other than the runs which appear in the dispatch logs and the incident involving Howard. He has no knowledge of Patterson's purported use of the radio to dispatch runs to the Union office although he keeps his radio on most of the time (Tr. 215-17).
Clewell further testified that he has never authorized the Union to use the base taxi service and does not feel that there is a practice of allowing such use. However, he acknowledged that Patterson might not have been aware of the difference between official use and official time. Clewell was not at the Academy when Patterson was originally assigned
to his position, although Patterson does have an understanding of AFI and the procedures for assigning and dispatching vehicles (Tr. 217).
On cross-examination Clewell was shown an entry for January 3, 2007 (Resp. Ex. 8, p.1), for which there is no vehicle registration number. When asked if he would request a dispatcher or vehicle scheduler to correct such omissions, Clewell stated that he does not review the logs on a daily basis. Counsel for the General Counsel then directed Clewell's attention to an entry for March 23, 2007 (Resp. Ex. 8, p.9), in which both the vehicle registration number and
the name of the driver are missing. When Clewell sees such entries, he speaks to the dispatchers; however, an entry cannot be changed after it is closed (Tr. 218-20).
On redirect examination Clewell stated that the OVIM system does not allow a change in information after it has been entered. If such a change is attempted the system will generate an additional line indicating an amendment (Tr. 221).
Tyrone Smith. Smith has been a vehicle dispatcher for about three years. He described the procedure for dispatching taxis as follows:
1. Requests for taxis generally come in by e-mail. If a request is received by telephone, they usually tell the requester to also submit it by e-mail.
2. Information regarding the request is entered into OVIM, usually by Smith or by Russell Johnson. However, data is also entered by Walter Fedorczuk and Clewell. In addition, information is entered into a separate system that produces trip tickets. Occasionally a taxi run is not entered into the system because of the workload. However, Smith has never intentionally failed to enter such information.
3. Each morning the drivers go to the mailbox (presumably an electronic mailbox) and get trip tickets with the taxi runs for that day (Tr. 221-24).
According to Smith it is the Respondent's policy that the Union may not use the taxi service and he has never understood the policy to be otherwise. Smith acknowledged that the Union probably used the taxi service on occasion, but he never knew
about it. When Smith first assumed his duties he asked Patterson whether they were picking up Union personnel and Patterson responded that they were.
Smith further testified that he could not remember dispatching Queen to pick up Howard. When asked whether he had ever dispatched a taxi to the Union office, Smith responded that it was "hard to say" (Tr. 224, 225). I take that to mean that Smith has dispatched taxis to and from the Union office, but that he knew that he was not authorized to do so.
On cross-examination, Smith was shown a log entry for April 4, 2005 (Resp. Ex. 6, p.14). The run was from the base
motor pool to Greeley, Colorado. The name of the driver was
omitted and the run lasted for 70 hours and 60 minutes. Smith
stated that the run had been incorrectly coded as a taxi run and that the category in the first column should have been 05, which is the code for a "u-drive". The entry for a u-drive run does not include the name of the driver.
Counsel for the General Counsel also directed Smith's attention to the second entry for May 25, 2005 (Resp.
Ex. 6, p.20). That run was from "PREP SCHOOL" to
"HOSPITAL/CADET CLINI" with 15 passengers over a period of two hours, and the driver's name does not appear. Smith stated that he thought that the entry was for the hospital shuttle and that he did not know why the driver was not identified. Smith acknowledged that missing information could be entered later after referring to the trip ticket. However, the omission would only be noticed when the weekly report was printed out. There would be no need to make a correction at that time since the information is already on the trip ticket (Tr. 225-28).
Counsel for the General Counsel then pointed out to Smith a number of entries for 2007 (Resp. Ex. 7) in which the names of drivers and/or vehicle registration numbers do not appear. Smith stated that those omissions were not crucial since the necessary information was available from other sources (Tr. 228-31).
Alfred Larry Moore. Moore has been Chief of Logistics Operations in charge of the Most Efficient Organization (MEO) for the past six years. According to Moore, the Respondent's
position that the Union is not authorized to use the base taxi service is based upon Air Force and Department of Defense guidelines.17 He further stated that the penalty for unauthorized use of government vehicles is severe and, in the case of civilians, includes suspension (Tr. 237).
Moore testified that the MEO is administered by the 10th Mission Support Group. Prior to the implementation of the MEO, the Union and the Respondent entered into an agreement to cancel a number of MOUs (Resp. Ex. 9).18 Moore testified that,
although the MEO does not address taxi service, that service has been substantially reduced due to a reduction in manning. Since the implementation of the MEO the Respondent no longer assigns taxi drivers to various locations on the Academy grounds in an attempt to reduce waiting time. Had there not been a reduction in manning, the Respondent would have lost the bid, thus necessitating a reduction in force. Moore could not state the number of available taxis prior to the implementation of the MEO, but estimated that there was a reduction of fifty percent (Tr. 237-39, 245-47).
Moore stated that he occasionally monitors the dispatch radio network, but has never heard about a run to the Union office. He further stated that the Union has not been permitted to use the taxi service since he has been in charge and, to the extent that it has occurred, it was without his knowledge or that of his managers (Tr. 247, 248).
On cross-examination Moore testified that the implementation of the MEO resulted in the elimination of taxi trips to the airport for temporary duty as well as intra-base trips for military personnel. They also stopped picking up certain commanders from their quarters and stopped transporting certain individuals to the airport (Tr. 248-51).
Walter Fedorczuk. Fedorczuk is currently a motor vehicle operator with additional duties involving scheduling and dispatching. According to Fedorczuk, although he is neither a
manager nor a supervisor, he is not a member of the bargaining unit and is not represented by the Union. (The General Counsel did not challenge that assertion.) He was originally hired by the Respondent in August of 2002, but was subsequently separated by a reduction-in-force and rehired in his present position on May 31, 2007 (Tr. 253, 254).
Fedorczuk enters UDI and bus requests into OVIM, but he does not recall having entered taxi requests and assumes that Johnson or Smith has done so. He dispatches taxis in response to telephone requests, but does not remember sending one to the Union office. Fedorczuk further stated that he might have denied such a request, but does not remember a specific instance. He denied any knowledge of the Union's use of the base taxi service other than having been told by his supervisors that they do not honor requests by the Union. The statements by his supervisors occurred some time between
May 31, 2007 and January of 2008 (Tr. 254-56).
On cross-examination, Fedorczuk testified that it was possible to correct OVIM entries. On redirect examination, he stated that he did not know whether corrections could be made for taxi runs that had already occurred (Tr. 257-59).
Russell Johnson. Johnson has been a driver/scheduler for the Respondent for the past five years. He has been involved with the taxi service for something more than two years. Johnson described his duties as receiving requests for vehicles, entering the requests into the vehicle scheduling system and OVIM and assigning the runs to drivers. Entries into OVIM are made by him as well as by Smith and Fedorczuk. They receive vehicle requests from the secretary, Josephine
Gallegos, who, in turn, receives them from the Logistics Department electronic mailbox. Drivers are normally informed of their runs by means of a daily trip sheet, but runs which are requested on short notice are dispatched by radio (Tr. 260, 261).
According to Johnson, data for every vehicle run is entered into the OVIM system except for unscheduled runs for purposes such as urgent vehicle maintenance or medical emergencies. Even in those cases, there is always "backup" so that the data can be entered after the run. Johnson stated that, other than because of short notice, he has never intentionally failed to enter information into the OVIM system. He knows that he is supposed to enter information into OVIM because he was trained that way "from day 1". (Tr. 261).
Johnson further stated that his understanding of the Respondent's policy is that the Union should not be using the base taxi service because such use does not support the mission of the Air Force. He has never dispatched a taxi to the Union office and, to the best of his knowledge, management has never authorized such a taxi run (Tr. 261, 262).
On cross-examination Johnson testified that the name of the driver who is assigned to a taxi run is normally not put into OVIM until the run has been completed. There is another system for vehicle scheduling which has the assignments of drivers to specific runs. OVIM can be corrected so as to reflect changes in the assignments of drivers (Tr. 264-66).
On redirect examination Johnson briefly scanned the dispatch sheets and indicated that pickup and destination data was shown for all of the runs. (The General Counsel has not
alleged that this is not so.) Johnson testified that this information is necessary for the run to take place. If pickup and destination points are not entered, the system will not assign a number to the run (Tr. 267, 268).
Findings and Conclusions
The Respondent is a unit of the United States Air Force which is an agency within the meaning of §7103(a)(3) of the Statute. The Union is a labor organization as defined by §7103(a)(4) of the Statute. At all times relevant to this case the Union was the exclusive representative of a unit of the Respondent's employees which is appropriate for collective bargaining (GC Exs. 1(b) and 1(e), ¶¶2-4).
The following facts are also undisputed, as shown by the aforementioned testimony:
1. The Respondent maintains a base taxi service which is available, upon request, to take military personnel and civilian employees to and from locations both on and off of the Academy grounds. (The scope of the taxi service will be discussed below.) The Respondent also maintains other vehicles, such as buses and ambulances.
2. Requests for taxi service are submitted to the dispatch office by telephone or e-mail. Requests which are received prior to the day when the taxis are required are, or
should be, entered into the OVIM system.19 Drivers access an electronic mailbox to obtain daily trip tickets listing their assignments to pre-scheduled runs.
3. In the case of taxi runs which are requested on the date of service, dispatchers make assignments to drivers either by radio or personally by going to the drivers' break room. Same-day runs should also be entered into OVIM even in the case of urgent requests which are to be recorded and entered later.
4. The Union has an office on the Academy grounds which is beyond normal walking distance from the work stations of members of the bargaining unit. The Union maintains certain records in its office and uses the facility for meetings between Union representatives, bargaining unit employees and representatives of the Respondent.20 The Union office is between four and five miles from the Cadet Area where most bargaining unit employees work.
5. Parking space for civilian employees is at a premium. Employees are encouraged by the Respondent to form carpools. Employees who move their vehicles during the day are at risk of losing their parking spaces.
The Legal Framework
The law pertinent to this case is well settled. In U.S.
Penitentiary, Leavenworth, Kansas, 55 FLRA 704, 715 (1999) the Authority held that, prior to implementing a change in conditions of employment, an agency must provide the union with notice of the proposed change as well as an opportunity to negotiate over those aspects of the change that are within the duty to bargain. In determining whether a matter involves a condition of employment the Authority will consider (a) whether it pertains to bargaining unit employees, and (b) whether there is a direct connection between the matter and the work situation of bargaining unit
employees, Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 237 (1986) (Antilles).
A condition of employment may arise out of a past practice. Consequently, a unilateral change in a past practice may trigger an obligation to bargain, Dep't of the Treasury, Internal Revenue Service (Washington, DC), et al., 27 FLRA 322, 324 (1987). In order to establish the existence of a past practice, there must be a showing that the practice has been consistently exercised over a significant period of time and followed by both parties or that the practice has been followed by one party and not challenged by the other, U.S. Patent and Trademark Office, 57 FLRA 185, 191 (2001) (Patent Office).
The Significance of the Taxi Service
When measured according to the two-pronged test of Antilles, it is clear that the availability of the base taxi service is a condition of employment. As to the first prong, the use of taxis for transportation to and from the Union office is significant only to members of the bargaining unit. As to the second prong, the use of taxis affects the work situation of those employees since, in the absence of taxi service, an employee is faced with the choice of borrowing a vehicle, which may not be possible, rescheduling an appointment at the Union office, or using his or her own vehicle with the resulting inconvenience of a possible loss of a parking space or the disruption of a carpool schedule. Parenthetically, the denial of taxi service may delay an employee's return to work, thus adversely affecting the Respondent as well as the employee.
While the lack of taxi service to the Union office does not pose an insurmountable obstacle to the effective representation of bargaining unit employees by the Union, it undoubtedly makes such representation more difficult, both for Union officers and stewards and for the employees whom they
serve. In AFGE and Social Security Administration, et al.,
25 FLRA 622, 625 (1987) the Authority held that, "Representation of employees in matters concerning their employment clearly affects the working conditions of those employees."
The Consistency and Duration of the Alleged Past Practice
The testimony as to the consistency and duration of the Union's use of the taxi service is far from definitive. I am skeptical of the assertions of certain of the General Counsel's witnesses as to the frequency of the trips. Hiibschman, for example, kept a diary of his appointments but had entries for only two rides to the Union office on
January 10 and February 16 of 2005 (Tr. 18). Patterson's assertion that he dispatched taxis to the Union office "all the time" (Tr. 123) is not credible because he did not cite specific instances. The credibility of Patterson's testimony is further eroded by his assertion that he entered all of the taxi runs that he dispatched into OVIM, but did not explain the absence of entries of all but two of the taxi runs to and from the Union office in the dispatch logs which are a product of OVIM.
Much of the testimony offered by the General Counsel's witnesses described the Union's use of taxis for trips between locations other than the Union office. Although the distinction between such trips and trips to and from the Union office may be arbitrary, the General Counsel has not alleged that the Union has been deprived of taxi service other than with regard to the Union office. I can only surmise that the Respondent was reluctant to order bargaining unit dispatchers to question other bargaining unit employees, much less Union representatives, as to whether they intended to use taxis on Union business. Such inquiries would be unnecessary for trips to and from the Union office which could only be for Union business.
In spite of the shortcomings of the testimony of the General Counsel's witnesses, it is sufficient to establish, by a preponderance of the evidence,21 that, for several years at least, Union representatives and other bargaining unit employees were given taxi rides to and from the Union office whenever they wanted them. The Respondent has not challenged testimony as to the distance of the Union office from the work stations of bargaining unit employees, the scarcity of parking places and the encouragement of carpools by the Respondent. That testimony corroborates the proposition that employees would seek to use the taxi service to get to the Union office.
Regardless of the frequency of such trips, there is no evidence or allegation of the refusal of taxi service prior to January of 2007. In U.S. Customs Service, Customs Management Center, Miami, Florida, 56 FLRA 809, 822 (2000), the Authority held that even an annual practice which has existed over a significant period of time can give rise to a bargaining obligation. While taxi trips to and from the Union office might not have been as frequent as suggested by the General Counsel's witnesses, taxi service was available when needed up until January of 2007.
The position of the Respondent as to this issue is not improved by the fact that the dispatch logs (Resp. Exs. 1-8) show only two trips to the Union office. There is ample testimony to the effect that all taxi runs were not entered into OVIM and that requests received on the day of the desired taxi service did not appear on the daily trip tickets. While
all of the taxi runs that were entered into the OVIM system showed the pickup and destination points, the wide-spread omission of other data, such as the names of drivers and the number of passengers, shows that the dispatch logs are not a reliable record of the actual use of the base taxi service.
The Respondent's reliance on the MEO is similarly misplaced. The fact that the Union agreed to the cancellation of certain MOUs is of no consequence in view of the fact that none of the MOUs dealt with the availability of the taxi service. The argument that the intent of the MEO was to eliminate past practice is belied by the absence of any reference to past practice as well as by the language in the CBA (GC Ex. 2, p.39) to the effect that past practices remain in effect pending the completion of collective bargaining.
I have assigned no weight to the conclusory and unsupported testimony that the Union's use of the taxi service would be contrary to Air Force or Department of Defense regulations in view of the fact that the Respondent has neither cited such regulations nor offered them in evidence. It is safe to assume that there are regulatory as well as statutory prohibitions against the use of government property other than for official business.22 However, the use of the
taxi service by Union representatives on official time or by bargaining unit employees in connection with contractual grievances are not so obviously beyond the scope of official business as to justify my reaching such a conclusion in the absence of specific authority to that effect. There is, perhaps, an argument to be made as to a distinction between Union activities on behalf of bargaining unit members and activities related to internal Union business. However, the Respondent apparently has never drawn such a distinction and I will not do so now.
The Respondent's Knowledge or Acquiescence
There is no evidence that the Respondent specifically acquiesced to the Union's use of the base taxi service. To the contrary, Howard testified that she only received taxi
service after initial refusals and was informed by Speights that such taxi runs were contrary to his orders (Tr. 48-52, 60; GC Ex. 5). Rosaya testified that he was told by Clewell that such service was not authorized (Tr. 72). Queen testified that he was told by Moore that the use of taxi service by the Union was illegal (Tr. 98).
In view of the fact that the Respondent did not acquiesce in the Union's use of the taxi service, it can only be charged with a duty to bargain under cases such as Patent Office if it knew of the alleged past practice and took no action to stop it. The Authority has made it clear that actual, rather than constructive, knowledge is required, Dept. of Health and Human Services, Social Security Administration, 17 FLRA 126, 139 (1985)(HHS). It is of no consequence that management representatives were lax in monitoring the use of the taxi service or that they could have learned of the Union's use of the service with only a slight effort.
As stated above, the absence of all but two taxi runs to the Union office from the OVIM dispatch logs does not prove that no such runs were made. However, the dispatch logs do support the proposition that responsible representatives of the Respondent were not aware of them. The overwhelming weight of the testimony of the General Counsel's and the Respondent's witnesses is that virtually all of the dispatching of taxis as well as the entry of the related data into the OVIM system was performed by dispatchers who are
members of the bargaining unit. Consequently, the omission of
such data from the dispatch logs means that the dispatching of taxis to and from the Union office was accomplished "off the books".
The absence of the records of all but two such taxi runs from June 11, 2001 to December 19, 2007, cannot rationally be considered as coincidental. Rather, it is the result of the efforts of certain dispatchers to accommodate the Union without the knowledge of the Respondent's responsible management representatives.23 In any event, there is no
written record of other than two taxi runs to and from the Union office. Therefore, if the Respondent is to be charged with knowledge of the practice, that knowledge must be found to have been attained by other means.
The position of the General Counsel is not enhanced by the fact that several employees were told that the Respondent would "no longer" provide taxi service to the Union. Those statements were made by dispatchers rather than by management officials and are not binding on the Respondent. In view of the fact that none of the dispatchers claimed to have been authorized to provide taxi service to the Union,24 such statements by the dispatchers meant only that they no longer felt comfortable sending taxis to or from the Union office. The reluctance on the part of the dispatchers, as well as their selective lapses of memory, leads me to conclude that the dispatchers knew that the taxi runs to the Union office, as well as the other uses of the service by the Union, were unauthorized.
According to the evidence, management representatives only approved taxi rides to the Union office for Howard, after she argued about it (Tr. 48-52), and for Queen when he needed
a ride between the Union office and the computer center in connection with a mandated change to government computers (Tr.
94, 95). Such ad hoc and atypical decisions by management representatives are insufficient to prove the existence of a binding past practice, U.S. Dep't of Labor, Office of Workers' Compensation Programs, Boston, Massachusetts, 56 FLRA 598, 603 (2000). In addition, Queen's reason for needing a taxi could logically have been considered to have fallen within even a narrow definition of official business.
The weight of the evidence is that some of the taxi runs to and from the Union office were dispatched by radio and it is undisputed that all of the supervisors in the dispatchers' chain of command had radios. However, it is also true that some taxi runs, to whatever destination, were dispatched on a
face-to-face basis. I credit the testimony of the supervisors
that they did not hear the dispatching of the taxi runs to and from the Union office because, to conclude otherwise, I would have to assume that the supervisors had nothing else to do but to monitor the dispatching of most, if not all, taxi and other vehicle runs. As previously stated, I have concluded that the taxi runs to and from the Union office were not as frequent as suggested by certain of the General Counsel's witnesses. Moreover, the failure of the dispatchers to log in the runs to and from the Union office suggests that, whenever possible, they would have avoided using the radio to dispatch the runs so as to avoid the attention of their supervisors.
While certain management representatives, including those involved in labor relations, might have seen Union representatives and other bargaining unit members entering and leaving taxis, such incidents would almost certainly have occurred other than at the Union office.25 The Respondent apparently did not attempt to curtail trips to locations other than the Union office. Significantly, Hiibschman testified that he has not used the taxi service since he went on 100% official time and was acting only on behalf of the Union (Tr. 25).
In order for the General Counsel to meet her burden of proving the existence of a past practice, she must show that the practice occurred with the knowledge and acquiescence,
direct or implied, of responsible management officials, Norfolk Naval Shipyard, 25 FLRA 277, 286 (1987). Although the term "responsible management official" is not specifically defined in Authority precedent, I feel confident in construing it in this case as denoting a management representative with knowledge of and responsibility for the implementation of the Respondent's transportation policies. Even though Queen's supervisor at Mitchell Hall allowed Queen to use his office telephone to request taxi rides to the Union office (Tr. 90), the knowledge of unidentified waiter supervisors is not
binding on the Respondent since the nature of their positions does not, in the absence of additional evidence, suggest that they are responsible management officials in the context of this case.
DiBiasio, a food service worker, testified that his first line supervisor approved his use of official time and supposedly knew that he sometimes met with employees at the Union office. DiBiasio's supervisor, like Queen's, was not a responsible management official within the meaning of Norfolk Naval Shipyard, supra. Furthermore, the supervisor's knowledge of DiBiasio's use of official time does not translate into knowledge that he used the base taxi service, let alone that he was going to the Union office on a specific occasion. DiBiasio himself acknowledged that he sometimes used his own vehicle on Union business and that, at other times, he would meet with employees in Mitchell Hall (Tr. 152-54).
I do not impute the knowledge of Berger, Furman and other of the Respondent's labor relations representatives to the Respondent. It is undisputed that neither the CBA nor any MOU authorizes or prohibits the Union's use of the taxi service. Consequently, the Respondent's labor relations and personnel representatives were not involved in matters related to the taxi service.
The General Counsel maintains that the Respondent's knowledge of the alleged past practice is shown by Little's testimony to the effect that, some time around the early 1990's, Union representatives withdrew bargaining proposals
For reserved parking spaces and office space in every building
upon receipt of the Respondent's assurances that they could use the base taxi service (Tr. 160, 167). Curiously, that alleged understanding was never reduced to writing.26 It is
unclear whether the incidents described by Little occurred before or after the opening of the first Union office on
Academy grounds. In any event, a logical quid pro quo for offices and parking spaces could just as easily have been the use of the taxi service between locations where bargaining unit members were employed. The Respondent apparently made good on its assurances to the Union since it has not been alleged that taxi service has been denied for trips other than to the Union office.
My review of the evidence leads me to conclude that, while it is possible that the Respondent knew of the alleged past practice, a finding to that effect could only be based on conjecture. Such conjecture is no substitute for direct or circumstantial evidence of the Respondent's actual, rather than constructive, knowledge of the Union's use of the base taxi service for trips to and from the Union office, HHS.
The evidence also leads me to the conclusion that the Respondent's oversight of the base taxi service was sporadic at best and that responsible management officials could have learned of the Union's use of the taxi service with a minimum of effort. However, the Authority has made it clear that it is of no consequence that the Respondent should have known of the alleged past practice, HHS. The fact remains that the Respondent had no actual knowledge of the alleged past practice and that the Respondent's ignorance was caused, in the first instance, by the failure of bargaining unit dispatchers to record the disputed taxi runs in the OVIMS system or in any other way so as to bring the runs to the attention of responsible management representatives.
It is unclear why the issue of taxi service to and from the Union office came to a head in January of 2007. If the curtailment of taxi service was caused by the implementation
of the MEO, it would have occurred about six years earlier. Fortunately, I am not required to solve that mystery.
For the reasons stated above, I find that the General Counsel has not met her burden of proof as to the Respondent's knowledge of or acquiescence in the Union's use of the base taxi service for transportation to and from the Union office.
Accordingly, I have concluded that no past practice existed such as to give rise to a bargaining obligation on the part of
the Respondent. The Respondent did not commit an unfair labor practice by unilaterally denying such taxi service to the Union.27
In view of the above conclusion, I recommend that the Authority adopt the following Order:
It is hereby ordered that the Complaint be, and hereby is, dismissed.
Issued, Washington, DC, June 11, 2008.
Paul B. Lang
Administrative Law Judge
CERTIFICATE OF SERVICE
I hereby certify that copies of the DECISION issued by
PAUL B. LANG, Administrative Law Judge, in Case
No. DE-CA-07-0305, were sent to the following parties:
CERTIFIED MAIL & RETURN RECEIPT CERTIFIED NOS:
Hazel E. Hanley, Esq. 7004-1350-0003-5175 3062
Federal Labor Relations Authority
1244 Speer Boulevard, Suite 100
Denver, CO 80204
Maj. Timothy Tuttle, Deputy Chief 7004-1350-0003-5175 3079
Labor Relations Branch
1501 Wilson Blvd., 7th Floor
Arlington, VA 22209
Sterling W. Hiibschman, President 7004-1350-0003-5175 3086
AFGE, Local 1867
9020 Husted Road
Colorado Springs, CO 80840
80 F Street, N.W.
Washington, DC 20001
Dated: June 11, 2008
1/ The terms "Union office" and "Union hall" were used interchangeably throughout the hearing.
2/ Mitchell Hall is the cadet dining hall which is in the Cadet Area. Hiibschman is a food service worker.
3/ The records were eventually entered into evidence over the General Counsel's objection as Respondent's Exhibits 1 through 8.
4/ Moore testified that the MEO represented a joint, and ultimately successful, effort by the Union and the Respondent to preserve a number of civilian positions which, presumably, would otherwise have been assigned to contractors or eliminated entirely (Tr. 239). According to Tobin's memorandum the MEO was to go into effect on or around October of 2000.
5/ According to Rosaya's unchallenged testimony, the chain of command above the dispatchers is: Clewell, Vehicle Operations Supervisor; Speights, Vehicle Manager; Moore, Deputy Logistics Supervisor; and Dye, Chief of Logistics and Readiness (Tr. 65, 66). Berger is a labor relations representative for the Respondent (Tr. 90). Queen is a coach operator and the First Vice President of the Union (Tr. 87, 89).
6/ It is unclear whether this occurred at the EEO office or elsewhere.
7/ Queen's taxi trips were presumably on Union business, but it is unclear how many of them were to and from the Union office.
8/ The transcript indicates that the cross-examination was conducted by Counsel for the General Counsel. This is an error; Patterson was a witness for the General Counsel and was cross-examined by Counsel for the Respondent.
9/ I have construed Jencson's testimony to mean that Clewell and Speights seldom spoke over the radio since Jencson would have no way of knowing whether they were monitoring transmissions.
10/ It does not follow, and I do not conclude, that the supervisor's knowledge that DiBiasio was using the taxi could be inferred from his having allowed DiBiasio to take official time on occasions when he, according to his own testimony, might have used his personal vehicle.
11/ Jack's Valley is an area outside of the North Gate of the Academy where new cadets go through a boot camp.
12/ This was a 4 hour run; the office symbol is shown as "VEHICLE OPERAT