DEPARTMENT OF THE AIR FORCE AIR FORCE MATERIEL COMMAND WRIGHT-PATTERSON AIR FORCE BASE, OHIO and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 214, AFL-CIO
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
DEPARTMENT OF THE AIR FORCE AIR FORCE MATERIEL COMMAND WRIGHT-PATTERSON AIR FORCE BASE, OHIO
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 214,
Case No. CH-CA-20635
Lt. Col. Timothy D. Wilson
For the Respondent
Philip T. Roberts, Esquire
For the General Counsel
Mr. Paul D. Palacio
For the Charging Party
Before: WILLIAM B. DEVANEY
Administrative Law Judge
Statement of the Case
This proceeding, under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the United States Code,
5 U.S.C. § 7101, et seq.(1), and the Rules
and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns whether the
Union's request for information concerning vacant position
authorizations is governed by the Memorandum of Understanding
negotiated by the parties with respect to formation of Air Force
Materiel Command [AFMC Activation].
This case was initiated by a charge filed on July 13, 1992,
(G.C. Exh. 1(a)), which alleged violations of §§ 16(a)(1) and (5)
of the Statute, and by a First Amended charge filed on November 27,
1992 (G.C. Exh. 1(b)), which alleged violations of §§ 16(a)(1), (5)
and (8) of the Statute. The Complaint and Notice of Hearing (G.C.
Exh. 1(c)) issued on November 27, 1992; alleged violations of §
16(a)(1), (5) and (8) of the Statute; and set the hearing for a
date, time and place to be determined. By Notices dated April 22
and May 21, 1993, the hearing was set for June 9, 1993, in Dayton,
Ohio, pursuant to which a hearing was duly held on June 9, 1993, in
Dayton, Ohio, before the undersigned. All parties were represented
at the hearing, were afforded full opportunity to be heard, to
introduce evidence bearing on the issues involved, and were
afforded the opportunity to present oral argument which each party
waived. At the conclusion of the hearing, July 9, 1993, was fixed
as the date for mailing post-hearing briefs and Respondent and
General Counsel each timely mailed a brief, received on July 13,
1993, which have been carefully considered. Upon the basis of the
entire record, I make the following findings and conclusions:
1. The American Federation of Government Employees,
AFL-CIO (AFGE), is the certified exclusive representative of a
nationwide unit of Respondent's employees. American Federation of
Government Employees, Council 214, AFL-CIO (Union), is the agent of
AFGE for the representation of Respondent's employees.
2. Respondent, Air Force Materiel Command (AFMC), was
formed from what had been the Air Force Systems Command (AFSC),
headquartered at Andrews Air Force Base, Maryland, and the Air
Force Logistics Command (AFLC), headquartered at Wright-Patterson
Air Force Base, Ohio. AFMC is headquartered at Wright-Patterson Air
Force Base, Ohio.
3. In anticipation of the integration of AFSC, which
developed weapons systems for the Air Force, and AFLC, which
provided the logistics support, training, etc. (Tr. 52), a
Provisional AFMC Headquarters was set up in June or July 1991, to
work on the integration of the Commands into AFMC (Tr. 70). The
Union was notified of the integration and offered the opportunity
to bargain on the impact and implementation (Tr. 54, 71). On, or
about, August 9, 1991, the Union submitted its proposals for the
AFMC Integration (G.C. Exh. 7; Tr. 54-55, 71). In the ensuing
negotiations, the Union was represented by Mr. Joseph H. Nickerson,
Executive Director of the Union (Tr. 51, 55) and Respondent was
represented by Mr. H. Dale Biddle (Tr. 55, 71-73). The parties
discussed the Union's proposals (Tr. 55) and, subsequently, Mr.
Biddle, "came back with a counter-proposal" (Tr. 55) which, after
discussion, was signed on August 30, 1991, by the parties, without
modification, as the "AFMC Activation Memorandum of Agreement"
(G.C. Exh. 2) (hereinafter, "MOA").
4. In Paragraphs 3 and 4 of its proposal, the Union had
"3. Data to justify any vacancies filled, particularly through promotion will be provided to
AFGE Council 214 as requested.
"4. Identify by grade and series the number of AFSC slots being transferred to Wright-
Patterson Air Force Base and identify which are vacant and provide this to Council 214. For
those vacancies, identify procedures on how those slots will be filled. Identify those slots to be
filled by promotion and provide rationale." (G.C. Exh.
Paragraph 3 of the MOA provided that procedures for filling
bargaining unit positions at Wright-Patterson would be "consistent
and in accordance with regulations, the MLA [Master Labor
Agreement] and local agreements negotiated prior to or after the
effective date of this agreement [August 30, 1991]" (G.C. Exh. 2),
but information to be provided was set forth in Paragraph 4 as
"4. When available, a listing of the HQ AFSC position authorizations being transferred to
Wright-Patterson AFB will be provided to AFGE Council 214."
(G.C. Exh. 2).
5. Beginning on September 12, 1991, Respondent, pursuant
to Paragraph 4 of the MOA, provided the Union with a listing of the
HQ AFSC vacant position authorizations transferred to
Wright-Patterson AFB and thereafter, through June 16, 1992, updated
the listing fourteen times (G.C. Exh. 3; Res. Exh. A; Tr. 73-74).
The initial listing (September 12, 1991) consisted of about 1¼
pages; the final updated listing (June 16, 1992) consisted of about
104/5 pages (Res. Exh. A).
6. AFMC, i.e. the integration of
AFLC and AFSC, became effective July 1, 1992 (Tr. 52).
7. By letter dated June 17, 1992, the Union
"Provide an annotated and updated list of the positions filled that were reflected as vacancies.
Indicate name, grade, and series of the new position. Indicate whether the individual filing (sic)
the vacancy was surplus.
"If the position filled was not by a surplus individual, indicate how position was filled and provide
the pertinent data on how the selections were made. Cite applicable regulations and provide copies
of same. Ethnicity, gender and age of those individuals are
also required." (G.C. Exh. 4).
8. Respondent, by letter dated June 29, 1992, denied the
Union's June 17 request for information for the reason,
"The parties previously bargained in good faith and signed an agreement on 30 August 1991 relative
to the AFMC Activation. Council 214's proposals on information needs were fully discussed and
explored during bargaining. Paragraph four (4) of the 30 August 1991 agreement specifies the
information the employer is obligated to provide Council 214. Since information proposals were
previously discussed and agreement reached regarding them, you cannot modify or expand on that
agreement -- as you now are attempting to do. Therefore, your request for additional information on
this matter is denied." (G.C. Exh. 5) (By letter dated July 7, 1992, Respondent corrected the last
paragraph, i.e., the paragraph following the paragraph set forth above.
G.C. Exh. 6).
9. Mr. Nickerson stated that the Union's information
request of June 17, 1992, signed by Mr. Squires (G.C. Exh. 4) was
basically the same as the Union's proposals of August 9, 1991 (G.C.
Exh. 7). Thus, Mr. Nickerson testified,
"A. The proposals that I originally submitted are basically the same as the our data request
that we made, that Mr. Squires signed, that's Exhibit,
General Counsel's Exhibit Four.
"In discussions with Mr. Biddle and with what little I knew about Personnel matters, I felt
that Paragraph Three was the -- was the avenue that provided
my visibility if I needed it, okay?
"And Paragraph Four, while it -- yes, it -- and I agree that it is just a listing of those positions,
actually gave us no information at all. . . ." (Tr. 61).
10. The Union in its request of June 17, 1992, stated
"This data is required by AFGE for surveillance purposes in determining that management has been
and is complying with applicable regulatory guidance, Memorandums of Agreement and the Master
Labor Agreement. Managements (sic) compliance with Article 9, Section 9.01 and 9.01 is
requested." (G.C. Exh. 4).
Respondent is denying the Union's request had stated,
"Moreover, you claim the information is needed for surveillance purposes. You failed to specify
what provisions of the Master Labor Agreement or Memorandums of Agreements would be
monitored for compliance by use of the requested data or why(2) the information is necessary to
enable Council 214 to fulfill its representational responsibilities with regard to bargaining unit
employees." (G.C. Exh. 6). (Emphasis in original.)
In Internal Revenue Service v.
FLRA, 963 F.2d 429 (D.C. Cir. 1992)
(hereinafter, "IRS"), the Court held, in
part, as it had held in Department of the Navy,
Marine Corps Logistics Base, Albany, Georgia v. FLRA, 962
F.2d 48 (1992) (herein-after, "Marine
Corps"(3), that ". . . the
'clear and unmistakable waiver' approach adopted by the Authority
in this case is internally inconsistent and produces results at
odds with the policies of the FSLMRS." (963 F.2d at 438). In its
decision on remand, Internal Revenue Service,
Washington, D.C., 47 FLRA 1091 (1993) (hereinafter,
"Internal Revenue Service"), the Authority
stated, in part, as follows:
". . . On reexamination, we conclude that in unfair labor practice cases . . . where the underlying
dispute is governed by the interpretation and application of specific provisions of the parties' collective
bargaining agreement, we will no longer apply the 'clear and unmistakable waiver' analysis. We have
carefully examined the court's decision in IRS v. FLRA [IRS] . . . We have formulated a new approach
to these cases that will carry out the purposes and policies of the Statute. We now hold that when a
respondent claims as a defense to an alleged unfair labor practice that a specific provision of the parties'
collective bargaining agreement permitted its actions alleged to constitute an unfair labor practice, the
Authority, including its administrative law judges, will determine the meaning of the parties' collective
bargaining agreement and will resolve the unfair labor practice complaint accordingly." (47 FLRA at
1103) (Emphasis supplied).
The Authority's ". . . definitive test for determining when a
matter is contained in or covered by a collective bargaining
agreement" may be found in U.S. Department of
Health and Human Services, Social Security Administration,
Baltimore, Maryland, 47 FLRA 1004, 1016-1019 (1993)
(hereinafter, "SSA, Baltimore"). See, also,
Sacramento Air Logistics Center, McClellan Air
Force Base, California, 47 FLRA 1161, 1165 (1993);
U.S. Department of The Navy, Marine Corps
Logistics Base, Barstow, California, 48 FLRA 102, 106-107
(1993); Social Security Administration, Douglas
Branch Office, Douglas, Arizona, 48 FLRA 383, 386-387
(1983); USDA Forest Service, Pacific Northwest
Region, Portland, Oregon, 48 FLRA 857, 859-860 (1993);
Marine Corps Base, Camp Lejeune, North
Carolina, 48 FLRA 1062, 1065-1066 (1993).
Here, it is conceded by the Union that its information
request of June 17, 1992, with respect to AFSC slots transferred to
Wright-Patterson AFB, was basically the same as its proposal in the
1991 negotiations which it dropped and accepted, in lieu thereof,
Paragraph 4 of the MOA, which provides that Respondent will provide
the Union, ". . . a listing of the HQ AFSC position authorizations
being transferred to Wright-Patterson AFB". Thus, there is no
dispute whatever that: (a) the MOA of August 30, 1991, specifically
covered the information to be furnished with respect to HQ AFSC
position authorizations transferred to Wright-Patterson AFB; and
(b) that the Union's more expansive proposal, which is basically
the same as its 1992 request, was discussed and that the Union
agreed to Paragraph 4 of the MOA with full knowledge and awareness
that it would be provided a listing, only, of HQ AFSC position
authorizations being transferred to Wright-Patterson AFB and not
the much more detailed information it had sought in its
If this were a bargaining case, there could be no doubt that the Union's 1992 "request to bargain" would be barred in the sense that Respondent's refusal to bargain would not have violated §§ 16(a)(5) or (1) of the Statute. SSA, Baltimore, supra; but is the Union's request for information under § 14(b)(4) of the Statute also barred, in the sense that Respondent's refusal to supply the data requested did not violate §§ 16(a)(1), (5) and (8) of the Statute? I concluded, for reasons set forth hereinafter, that denial of an information request does not violate §§ 16(a)(1), (5) or (8) of the