DEPARTMENT OF THE AIR FORCE, AIR FORCE MATERIEL COMMAND, WARNER ROBINS AIR LOGISTICS CENTER, ROBINS AIR FORCE BASE, GEORGIA and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987
Office of Administrative Law Judges
DEPARTMENT OF THE AIR FORCE,
AIR FORCE MATERIEL COMMAND,
WARNER ROBINS AIR LOGISTICS CENTER,
ROBINS AIR FORCE BASE, GEORGIA
andAMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987
Case Nos. AT-CA-80138 AT-CA-80192
C.R. Benson Representative of the Charging Party
Sherrod G. Patterson Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER Administrative Law Judge
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 implementing two separate changes in
official time procedures without notifying the Charging Party and
providing it an opportunity to negotiate to the extent required by
the Statute. One of the alleged changes required Union steward Rick
Benson to request official time by submitting hard copy official
time requests rather than submissions by electronic mail (e-mail)
through computer-generated forms. The other alleged change required
Benson to obtain written permission for official time before he
left the office.
Respondent's answer admitted the jurisdictional allegations
as to the Respondent, the Union, and the charge, but denied any
violation of the Statute. The Respondent contended that no past
practices were established; that, with regard to the use of
computer-generated forms, this procedure was unique to the
supervisor and employee, was understood to be nonprecedential, and
would revert to the provisions of the collective bargaining
agreement once the original supervisor involved left.
For the reasons set out below, I find that Respondent
violated the Statute as alleged.
A hearing was held in Macon, Georgia. The parties were
represented and afforded full opportunity to be heard, adduce
relevant evidence, examine and cross-examine witnesses, and file
post-hearing briefs. The Respondent and General Counsel filed
helpful briefs. Based on the entire record, including my
observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions of law, and
Findings of Fact
The American Federation of Government Employees, Council 214
(AFGE) is the exclusive representative of a nationwide unit of
employees of the Department of the Air Force, Air Force Materiel
Command appropriate for collective bargaining, including a unit
located at Warner Robins Air Logistics Center, Robins Air Force
Base, Georgia (the Respondent). The Charging Party (AFGE, Local 987 or Union) is AFGE's agent
for representing the unit of employees at the Respondent.
The Expired 1992 Agreement
In October 1992, the parties' nationwide agreement expired.
Since then, the terms of that expired contract, including section
4.10, official time release procedure, have continued to the extent
required by law. Section 4.10 official time release procedure,
provides, in pertinent part, as follows:
The following procedures shall apply to employees
and Union representatives who wish to leave their
assigned work area on official time, as authorized
under this Agreement.
a. When a Union representative desires to leave
their assigned work station to conduct authorized
Union-Management business, that Union representative
must first report to and obtain permission of the
immediate supervisor. In requesting release, the
Union representative will inform the supervisor of the
nature of the function to be performed, destination,
name(s) of employee(s) to be contacted, estimated
d. Upon release, applicable portions of the [AFMC]
Form 949 will be completed by the supervisor and the
Union representative . . . .
. . . .
g. Upon return to the work area, the Union
representative shall advise the supervisor of his/her
return. The supervisor shall sign the representative in
on [AFMC] Form 949 and retain the form for accounting
purposes. The Union representative shall be given a copy
of the form when it is completed.
(AFMC Form 949 replaced AFLC Form 949)
Benson and Evans
Charles R. Benson, a logistics management specialist in the
Special Operations Forces Directorate (LU),LUJ component, has been
a Union steward on and off for eight years, but most recently for
three years straight. He and Robert Evans, directorate steward and
an employee in the LUH component, handle Union matters for some 240
Advance Approval of Official Time
During this three year period, 1995 until November 1997, if
Benson's first-level supervisor were not present, Benson could
submit the official time request, or leave the Form 949 in his
supervisor's box, and leave the office on official time without
obtaining the permission and release of the supervisor. The
supervisor would approve the request when he returned, sometime a
day or two later. Benson was never threatened with being charged
absent without leave (AWOL) for failing to obtain permission before
leaving the office on official time.
Directorate steward Robert Evans had the same arrangement
with his supervisor, Larry Layfield, for the period 1995 to 1997.
Most of the time Evans secured prior approval from Layfield or the
person he designated as an alternate. But if they were not
available, Evans was free to leave the request in Layfield's box
and proceed on official time. They completed the form on Layfield's
return. Evans was never threatened with being charged AWOL for
failing to obtain permission before leaving the office on official
Robert C. Hardy, an employee of the LUG component of the directorate, was a Union steward for four years during the period 1989 to 1993. He had four different supervisors during this period and had the same arrangement with them. If the supervisor were available, he would obtain approval and go on the official time. If the supervisor were not physically available, he would leave the form on the supervisor's desk and go to the meeting. He was never advised to seek approval from an alternate supervisor.
Change Concerning Advance Approval
Larry Layfield became Benson's supervisor on November 4,
1997. About the time Layfield reported to LUJ, he had received
notice that the whole directorate was to have "stricter compliance
with written 949s and approval of 949s." They were to use the 949
process in order to have official documentation of official time
and to comply with the new requirement to report on official time
to General Goddard. (Tr. 119, 128).
On November 24, 1997, Layfield advised Benson by means of a
Post-It note that "949s must be signed by a member of management
prior to leaving the work area. If I am not available, then Greg
Stanley is next. If Greg is not available, then LU must
On November 25, 1997, Layfield sent Benson an e-mail message
with copies to directorate steward Evans and Greg Stanley. The
e-mail message stated that "[t]he following guidance provided in
the Master Labor Agreement is highlighted for a reminder as to
proper procedures to be used when requesting official time[.]" The
message proceeded to insert Section 4.10, the official time release
procedure from the expired master labor agreement (MLA), and added
as paragraph number two the statement, "The above steps must be
followed on all Official Time Permits. Any failure to follow the
agreed to MLA guidelines will result in AWOL status. This has been
coordinated with 78th Support Group/DPCEL, Dale Foster,
As a result of the November 24 and 25, 1997 messages, Benson and Evans ended their practice of leaving the office
on official time without having the prior approval of their
supervisors when the supervisors were absent. The November 25, 1997
message was the first time they had been warned that failure to
follow the MLA procedure would result in AWOL status.
Prior to sending the November 25, 1997 message, Layfield was
assured by Dale P. Foster, chief of labor relations, that it was
appropriate to include Section 4.10 of the expired MLA in the
message inasmuch as it was still being followed by the Union and
the Respondent until a new agreement is in place. Foster also
advised Layfield to add the statement that failure to follow the
MLA procedure would result in AWOL status. The labor relations
office consistently provides this instruction to
The Respondent did not notify the Union of the November 24
and 25, 1997 actions and provide it an oppor-tunity to bargain.
E-mail Requests for Official Time
Lieutenant Colonel Mueller became Benson's supervisor in 1995. Benson, as an active Union steward, had occasion to request official time from Mueller about once every week or two. He would complete a hard copy of AFMC Form 949 (949), Union/Employee Official Time Permit, sign it, and put it in Mueller's box. Mueller would either sign it at that time or later in the day. Most often, it would be a day or two later before he signed the request. As described in more detail above, if Mueller were not in the office, Benson would proceed to take the official time and he and Mueller would fill in the details on the form later.
In early June 1996, Mueller suggested that it would improve
procedures if Benson could put the 949 on the computer and submit
official time requests electronically by e-mail on a test basis.
Mueller believed that computer-generated requests would make record
keeping easier. Mueller also conferred with directorate steward
Evans and determined that the directorate steward had no
Benson told Mueller that he did not have a problem with
Mueller's proposal. Benson then requested, and received, approval
from directorate steward Evans and Union President Jim Davis to
approve Mueller's proposal. Benson started using e-mail to request
official time in June 1996.
In September 1996, with the assistance of Union President
Davis, Benson composed and memorialized the e-mail procedure in a
September 11, 1996, e-mail message to Mueller, which he also sent
to Evans. The message stated, in pertinent part, as follows:
The attached form will be useful and a time saver for us
in LUJ. However, I must state the following to keep us
both out of trouble and for the record. In the interest
of fostering a better partnership and better relations
between labor and management, it was agreed to by the
LUJ Union Steward and the LUJ IPT Leader to use this
process for requesting, approving, and recording
official time for labor relations activities. This LUJ
agreement is not, however, in any manner, precedent
setting and should not be construed as a permanent
agreement, nor to be used by any other organization
other than LUJ.
Benson testified that his use of the terms "not . . .
precedent setting" and "not . . . a permanent agreement" was
consistent with his agreement with Mueller that the use of e-mail
was for a trial period and was only for their organization,
On December 23, 1996, Mueller wrote Benson, stating:
Rick, I believe you and I have a good system which
has provided record keeping and is better than paper.
We agreed that something like "reasonable as agreed
upon" covered all the bases. I'm for that. So, based
on your judgement and concurrence, I recommend we
press on with our system. I will take the heat over
the issue of paper. I am required to file a report on
official time, and that will be support just fine from
the email system we have developed together. Is that
okay with you?
Benson replied to Mueller that he saw no reason to go back
to the former system when the e-mail was working so well. They
agreed to continue the e-mail procedure. Benson testified that he
interpreted this action as an agreement to make the LUJ e-mail
The e-mail procedure in LUJ continued until July 11, 1997.
During this period, no copies of form 949 were being sent to Joyce
Barker, labor relations specialist for LU, who previously received
copies. Mueller continued to send her a monthly count of the
official time used.
Labor Relations Learns of Arrangement
Dale P. Foster, chief of the Respondent's labor relations
section, and the Respondent's representative for labor relations,
provides guidance to supervisors on how to apply the contract. Her
section also reviews copies of the 949s that it receives from the
organizations on a routine basis. The 949s are reviewed to make
sure they are correctly annotated and documented.
Foster found out about the agreement between Benson and
Mueller after reviewing the 949s, or lack of 949s, from Mueller's
section and "tr[ied] to intervene" to correct this deviation from
Section 4.10 of the contract. When Foster inquired of Colonel
Mueller why he was doing this, Mueller said that the contract
provision "was a constraint, was inefficient, and was burdensome to
him and to the Union," and he and Benson had worked out an
alternative arrangement. He informed Foster that he had reached an
agreement with the Union to implement the alternative procedure.
Foster did not testify to any specific steps she took at that time
to notify General Goddard or to otherwise stop Mueller and Benson
from continuing the practice.
Foster testified regarding her opinion that the agreement
between Mueller and Benson was not a past practice. She said
Mueller was not empowered to deviate from the Center's adherence to
the contract, and Union President Davis had not authorized his
stewards to make such deviations. Foster explained that, in
approximately August or September of 1993, Davis advised the
Respondent that Union stewards were no longer empowered to enter
into agreements that changed the contract, either the local
supplement or the master agreement. Foster testified that when
Davis typically designated a steward for a specific task, he sent a
written delegation to the labor relations office.
Foster also testified that, during an April 1996 off-site
meeting facilitated by the FLRA, the Union and the Respondent
agreed that they would have a consistent policy for
labor-management relations. She said that Respondent has such a
consistent Center-wide policy and does not establish policy within
divisions or within sections.
Wiggs Becomes Head of LUJ
Major Thomas K. Wiggs became acting chief of LUJ from
mid-January through mid-April 1997, while Mueller attended a
training course in Washington, D.C. Mueller informed Wiggs that
Benson took official time and would submit his requests by e-mail.
While Wiggs was acting chief, Benson continued to request official
time of Wiggs via e-mail in accordance with the agreement. On July
7, 1997, after Mueller transferred to another duty station, Wiggs
became Benson's immediate supervisor as the head of LUJ.
According to both Benson and directorate steward Evans,
Mueller never stated or indicated to either of them that the
agreement would automatically terminate if and when Mueller left
Robins. Wiggs testified that if he, on instructions from his
superiors, had not issued a change in July 1997, by requiring
Benson to begin submitting "hard copy" 949s, "the old [e-mail]
process would have stayed in place."
Wiggs Receives LU Memorandum
On June 27, 1997, LU deputy director Mathis issued a
memorandum to all supervisors, including Wiggs, entitled "Labor
Relations Issues," which stated, in relevant part, as follows:
Effective immediately, LUF will be the focal point
on all communications involving labor relations
matters. LUF coordination is required on all
correspondence relating to action lines,
congressional, EEO complaints, grievances, union
issues, and Unfair Labor Practices (ULPs). . . .
The Master Labor Agreement (MLA) requires union
stewards to request official time from their
supervisor and to use AFMC Form 949 (Official Time
Permit). These terms were agreed to by both
management and the Union. Both parties are bound to
adhere to the agreement. Management does not have the
discretion to not comply. The supervisor is
responsible for granting approval/disapproval in
accordance with MLA, instructions at Atch 1. The
supervisor signs the steward in on the AFMC Form 949
and retains the form for accounting purposes. . . .
The SUPERVISOR is responsible for determining and
controlling the time, NOT the steward.
Wiggs discussed the reasons for the memorandum with Greg
Stanley, a management official in charge of LU administrative
functions. Stanley told Wiggs that management "was out of
compliance" with the expired MLA.
Wiggs Terminates E-mail 949s
In response to the June 27, 1997 memorandum, Wiggs
transmitted an e-mail message to Benson on July 11, 1997 which
stated, in pertinent part, as follows:
LU has signed out direction to all supervisors that
AFMC Form 949 (Official Time Permit) must be
accomplished in hard copy and that management does
not have the discretion to not comply.
Therefore, effective immediately, AFMC Form 949s will
be accomplished for all official time.
Wiggs then met with Benson to explain the new policy to him.
Benson replied that the change was unfortunate as the electronic
submission system was working well. Nonetheless, Benson readily
complied with the directive, and Wiggs later thanked him for being
The Respondent implemented the change in the e-mail
procedure without notifying the Union and providing it with an
opportunity to negotiate.
Condition of Employment
In determining whether an Agency has refused to comply with
an established practice, it must first be decided whether the
matter alleged to be a practice involves a condition of employment
of bargaining unit employees. Antilles
Consolidated Education Association and Antilles Consolidated School
System, 22 FLRA 235 (1986); U.S. Department
of Labor, Washington D.C. and U.S. Department of Labor, Employment
Standards Administration, Boston, Massachusetts, 37 FLRA 25
The Authority has held that the use of official time by
Union officials for representational activities is a condition of
employment, Department of Veterans Affairs,
Medical Center, Muskogee, Oklahoma, 53 FLRA 1228, 1229
(1998), U.S. Patent and Trademark Office,
39 FLRA 1477, 1482 (1991) (USPTO), and that
"[b]ecause section 7131(d) carves out an exception to sections
7106(a)(2)(A) and (B), it permits negotiations over the scheduling
of official time, including the ability to use official time
without advance scheduling or permission from the supervisor,
absent emergency situations or other special circumstances,"
National Treasury Employees Union and U.S.
Department of Commerce, Patent and Trademark Office, 52 FLRA
1265, 1287 (1997).
Once it is determined that the matter alleged to be a
practice involves a condition of employment, it must be
demonstrated that the practice has been consistently exercised over
a significant period of time and followed by both parties or
followed by one party and not challenged by the other. U.S. Department of Labor, Washington, D.C., 38 FLRA 899
Approval of Official Time
The record reflects that the Union stewards in the LU
directorate were able to take official time in the absence of their
supervisors or alternates without obtaining advance written
permission. This practice was consistently exercised by the three
LU stewards for a significant period of time. It was exercised by
one steward during the period 1989 to 1993 and by the two most
recent stewards during the period 1995 to November 24, 1997. The
practice was exercised by the stewards with the knowledge and
agreement of their supervisors in LU.
The practice came to an end on November 24, 1997. The supervisors were notified by the directorate that the whole directorate was to have "stricter compliance with written 949s and approval of 949s" because of new reporting requirements. This indicates that responsible management had knowledge of the lax enforcement of the 949 procedure and knowingly acquiesced in the lax enforcement by the LU supervisors. See Department of Health and Human Services, Social Security Administration, 17 FLRA 126 n.2 (1985) ("[T]he Authority agrees that knowing acquiescence over a significant time may indicate past practice. . . .") Despite the Respondent's protestations that it has a consistent policy, the Respondent failed to show that it has consistently interpreted and applied the procedures set forth in section 4.10 of the expired agreement in the LU directorate.
A shift from a practice of benign neglect of a personnel
policy to one of strict enforcement constitutes a change in
conditions of employment. Department of Health and
Human Services, Social Security Administration, Baltimore,
Maryland, and Social Security Administration, Jamestown, New York
District Office, Jamestown, New York, 34 FLRA 765 (1990)
(respondent's shift from a practice of benign neglect to one of
strict observance of a requirement that certain employees notify
their supervisors when going on their breaks changed conditions of
employment, and respondent's failure to bargain the change violated
I conclude that the longstanding procedure by which the
Respondent did not require Benson and other LU stewards to obtain
written permission in the absence of a supervisor before they took
official time and left their work areas constituted an established
past practice of a condition of employment that Respondent could
not change without first notifying the Union and affording it an
opportunity to bargain to the extent required by the Statute.
Veterans Administration, Veterans Administration
Medical Center, Muskogee, Oklahoma, 19 FLRA 1054 (1985)
The record reflects that Colonel Mueller, the chief of LUJ,
initiated a practice in June 1996 that allowed LUJ steward Benson
to request official time by transmitting computer-generated 949s.
The Union, by LU steward Evans, consented to the practice, and I
credit the testimony of Benson that Union President Davis
authorized Benson to approve the practice. The practice continued
for a significant period of time, one year. Foster, Respondent's representative for labor
relations officer, whose office was responsible for contract
administration and advising supervisors about how to apply the
contract, although informed of an agreement with the Union to
implement an alternative procedure from Section 4.10 of the expired
agreement, took no specific steps to rescind the practice.
Therefore, I conclude that responsible management did not challenge
and knowingly acquiesced in the practice.
Respondent contends that the September 1996 message from Benson to Mueller expressly acknowledges that the agreement was not precedent setting, or a permanent agreement, or to be used by any other organization other than LUJ. LUJ steward Benson did testify that his use of the terms "not precedent setting" and "not a permanent agreement" was consistent with his agreement with Mueller that the use of e-mail was for a trial period and was only for their organization, LUJ. However, I also credit the testimony of Benson that the December 23, 1996 message from Mueller to "press on with our system" constituted the end of the trial period and made the LUJ agreement permanent. I conclude that the practice did not expire with the departure of supervisor Mueller. It is noted that supervisor Wiggs also testified that if he, on instructions from his superiors, had not issued a change in July 1997, by requiring Benson to begin submitting "hard copy" 949s, "the old [e-mail] process would have stayed in place."
An established practice need not be common to all employees
in the recognized unit in order for it to exist. As long as there
is an identifiable group which has enjoyed an established practice,
and the practice satisfies the statutory requirements of section
7103(a)(14), a respondent is obligated to bargain with such group's
exclusive representative prior to changing such condition of
employment. Department of Defense, Department of
the Navy, Naval Weapons Station, Yorktown, Virginia, 16 FLRA
485, 500-01 (1984); Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 5 FLRA
By unilaterally changing established past practices
regarding official time without affording the Union an opportunity
to bargain over the changes, Respondent violated section 7116(a)(1)
and (5) of the Statute, as alleged in the complaint. USPTO, 39 FLRA at 1482-83; U.S.
Department of the Navy, Naval Avionics Center, Indianapolis,
Indiana, 36 FLRA 567 (1990); VA
Muskogee, 19 FLRA at 1057-58.
There is no evidence in the record that Union stewards to
date have been charged with AWOL or otherwise lost leave or pay as
a result of the unilateral changes. Therefore, I have not adopted
the detailed make whole remedy proposed by the General Counsel.
However, in the event bargaining unit employees do suffer adverse
consequences as a result of the changes, I have proposed a general
make whole remedy to be consistent with law and regulation. If the
proposed order is adopted by the Authority, implementation of this
remedy will be a matter for compliance.
Based on the above findings and conclusions, it is
recommended that the Authority issue the following Order:
Pursuant to section 2423.41(c) of the Authority's
Regulations and section 7118 of the Federal Service
Labor-Management Relations Statute, the Department of the Air
Force, Air Force Materiel Command, Warner Robins Air Logistics
Center, Robins Air Force Base, Georgia, shall:
1. Cease and desist from:
(a) Unilaterally changing conditions of employment of
bargaining unit employees by changing the past practices that
allowed representatives of the American Federation of Government
Employees, Local 987 who represent employees in the LU Directorate
to (1) request official time via e-mail and/or by using a
computer-generated AFMC Form 949 and (2) use official time without
first obtaining the written approval of their immediate supervisors
when their supervisors or their alternates are absent.
(b) In any like or related manner, interfering with,
restraining or coercing employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Statute:
(a) Rescind the policies of not permitting
representatives of the American Federation of Government Employees,
Local 987 who represent employees in the LU Directorate to (1)
request official time via e-mail and/or by using a
computer-generated AFMC Form 949 and (2) use official time without
first obtaining the written approval of their immediate supervisors
when their supervisors or their alternates are absent.
(b) Consistent with law and regulation, make whole any
bargaining unit employee who was adversely affected by its changes
in practices regarding the granting of official time for Union
representatives engaged in representational activities.
(c) Notify the American Federation of Government Employees, Local 987, of any intention to change the practices by which Union representatives who represent employees in its LU directorate (1) request official time via e-mail and/or by using a computer-generated AFMC Form 949 and (2) use official time without first obtaining the written approval of their immediate supe