DEPARTMENT OF THE AIR FORCE AIR FORCE RESERVE COMMAND ROBINS AIR FORCE BASE, GEORGIA and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987

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Office of Administrative Law Judges

WASHINGTON, D.C.


DEPARTMENT OF THE AIR FORCE

AIR FORCE RESERVE COMMAND

ROBINS AIR FORCE BASE, GEORGIA
Respondent


Case No. AT-CA-80669

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987
Charging Party

C.R. Swint, Jr. Counsel for the Respondent
Linda J. Norwood Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER Administrative Law Judge

DECISION

Statement of the Case

The unfair labor practice complaint alleges that Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7116(a)(1) and (5), by repudiating a 1997 Base Parking Plan. The complaint alleges that Respondent refused to bargain in response to the Charging Party's requests to bargain on April 30 and May 7, 1998, over a 1997 waiver that Respondent received from the negotiated Plan.

The Respondent's answer asserted, in part, an affirmative defense that the complaint was barred by section 7118(a)(4)(A) of the Statute because the alleged unfair labor practice occurred more than six months before the filing of the charge with the Authority on June 12, 1998.

The parties' joint motion for a continuance of the hearing and a preliminary ruling on the issue of the timeliness of the charge was granted. The parties stipulated that the pleadings and certain other exhibits should be considered in determining the applicability of section 7118(a)(4)(A). They also filed briefs addressing the issue.

Upon consideration of the briefs and exhibits, and for the reasons set out below, I conclude that the Union's charge was filed more than six months after the limitations period for filing under section 7118(a)(4)(A) commenced and grant the Respondent's request to dismiss the complaint.

Findings of Fact

The Respondent is a tenant activity at Robins Air Force Base, Georgia. The Charging Party (Union) is the exclusive representative for certain employees of the Respondent.

On August 26, 1997, Warner Robins Air Logistics Command (WRALC) implemented a new Base Parking Plan that it had negotiated with the Union. Shortly after its implementation,on or about September 4, 1997, Respondent's Vice Commander, Major General (MG) James Sherrard, sent a written request to the Commander of WRALC, MG Rondal Smith, asking for a waiver of the Plan because the Plan would reduce Respondent's reserved parking spaces from 153 to 42.(1)

Following this request, MG Smith contacted Union President Jim Davis and asked him if he would agree to a waiver from the Plan for the Respondent. Davis replied that he would not agree and that negotiations with the Union would have to be completed prior to the implementation of any waiver. MG Smith advised Davis that he was going to grant the waiver anyway.

On September 30, 1997, WRALC, by MG Smith, granted the Respondent a waiver from the Plan, thereby allowing the Respondent to keep its level of reserved parking spaces at approximately 153, instead of reducing the number to 42 as the Plan required.

Following MG Smith's unilateral action, the Union filed an unfair labor practice charge on November 28, 1997, alleging that the Respondent's action, through MG Sherrard and MG Smith, had repudiated an earlier 1994 memorandum of agreement about parking in which the Respondent had agreed to be bound by the Base Parking Plan.

This charge (Case No. AT-CA-80140) was investigated by the Atlanta Regional Office which, on April 23, 1998, declined to issue a complaint. The Acting Regional Director concluded that the Respondent did not repudiate the 1994 memorandum of agreement as it did not clearly and unequivocally bind the Respondent to all subsequent parking agreements as opposed to only a 1995 parking plan. The Acting Regional Director then proceeded to determine whether the Respondent and WRALC acted pursuant to the terms of the negotiated 1997 Base Parking Plan. He interpreted the 1997 Base Parking Plan and was "unable to conclude that WRALC or [the Respondent] either repudiated the 1994 MOA or failed to comply with the requirements of the 1997 Parking Plan." The charge was dismissed.(2) (Jt. Exh. 7).

On April 30, 1998 and May 7, 1998, respectively, the Union, by its President Jim Davis, made two written requests to bargain over Respondent's "variance from the Robins ALC parking policy." The Respondent rejected both of these demands on May 1, 1998 and May 14, 1998, respectively. (Jt. Exhs. Nos. 8-10).

The charge was thereupon filed on June 12, 1998, alleging that by the May 1998 refusals to bargain the Respondent "has refused and continues [to] refuse to negotiate with the Union concerning the parking policy which was the subject of demands to negotiate by the Union on April 30, 1998 and May 7, 1998."

Discussion and Conclusions

Section 7118(a)(4)(A) of the Statute provides, in pertinent part, that: "[N]o complaint shall be issued based on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority." The intent of this provision is to foster stable collective bargaining relationships and prevent the litigation of stale charges. See Equal Employment Opportunity Commission, Washington, DC, 53 FLRA 487, 495 (1997)(EEOC).

It is clear from the undisputed facts of this case that the alleged unfair labor practice occurred in Sepember 1997 when the Respondent sought and was granted a waiver from the Base Parking Plan without first negotiating with the Union. There is no dispute that the Union knew these facts in September 1997. Therefore, the charge filed in the instant case in June 1998, more than eight months after the waiver was granted, was untimely filed and the complaint based upon the change must be dismissed.