Office of Administrative Law Judges
WASHINGTON, D.C. 20424-0001
DEPARTMENT OF THE ARMY HQS, XVIII AIRBORNE CORPS AND FORT BRAGG FORT BRAGG, NORTH CAROLINARespondent
andAMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1770
Case No. AT-CA-50913
Ronald R. Katt Representative of the Charging Party
Hazel E. Hanley 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), at some time after May 18, 1995 and before June
13, 1995, when the Respondent, through Supervisor David Coleman,
bypassed the Union and dealt directly with a unit employee/grievant
concerning a grievance filed by the Union on behalf of the
Respondent's answer denied any violation of the Statute.
A hearing was held in Fayetteville, North Carolina. 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,(1) including my observation of the witnesses and
their demeanor, I make the following findings of fact, conclusions
of law, and recommendations.
Findings of Fact
On May 18, 1995, the Union, on behalf of Graham Renfrow, a
member of the bargaining unit, filed a grievance with the
Respondent concerning a locked gate which prevented Renfrow from
reporting to work on time and the subsequent verbal abuse of
Renfrow by his supervisor, David Coleman. The grievance named
William B. Hall as the representative and point of contact for the
The factual issue in dispute concerns a meeting between
Supervisor Coleman and Mr. Renfrow sometime after May 18, 1995, but
prior to June 13, 1995, during which a resolution of the grievance
was allegedly discussed without a Union representative being on
notice or present.
Supervisor Coleman testified that he was talking with Renfrow
in his office when Renfrow started using several curse words.
Coleman told Renfrow that he had filed a grievance because of
Coleman's use of the same language. According to Coleman, Renfrow
then replied that he had been thinking about that and was going to
drop the grievance.
Mr. Coleman testified that it was never his intention to
settle the grievance with Renfrow, but merely to make a point
regarding the use of profanity in the workplace. Coleman testified
that sometime later Renfrow again mentioned that he was dropping
the grievance, at which time Coleman informed him that the Union
had not dropped the grievance. According to Coleman, Renfrow said
he would talk to the Union again.
Mr. Renfrow acknowledged that he told Supervisor Coleman that he was dropping the grievance, but only after they had
discussed the matter and Supervisor Coleman had apologized for
cursing and losing his temper. According to Mr. Renfrow, a day or
two after filing the formal grievance, Supervisor Coleman asked
Renfrow to step in his office. Coleman told Renfrow that he had
heard that Renfrow had filed a grievance against him. When Renfrow
acknowledged that was so, Coleman referred to an earlier one-on-one
appraisal meeting they had a day or so earlier during which Renfrow
had used curse words. According to Renfrow, he and Coleman then
discussed the background issues of the grievance and, after about
30 minutes, Coleman apologized for cursing at Renfrow and losing
his temper after the locked gate incident on May 1, 1995. Coleman
continued to insist that, if the gate were locked, Renfrow should
drive to the other gate, park, and walk to the shop. Finally, after
further argument by Renfrow, that the gate should be unlocked for
the oncoming shift, Coleman said he "would do his absolute best to
make sure that the gate would be unlocked on time, and that we
wouldn't have any further problems with the gate."
According to Renfrow, having Coleman's apology and
assurances about the gate, he "felt at the time that [Coleman] was
sincere in what he was saying, and I felt comfortable with it, and
I told him that I would drop the grievance, and I did." Renfrow
testified that he immediately informed Union shop steward Berkley
that he was satisfied with what had happened in Coleman's office,
including his apology, and wanted to drop the grievance.
Based on my observation of the witnesses and their demeanor,
the arguments of counsel concerning their credi-bility, and all the
evidence relating to the handling of the grievance in question, I
credit the testimony of Mr. Renfrow. His testimony appeared to be
sincere and straightforward and his explanations inherently
probable given the total context of the situation.
Despite Mr. Renfrow's desire to drop the grievance, at a
meeting with Respondent on June 13, 1995, during which the gate
problem and Mr. Coleman's relationship with employees was
discussed, Union president Bullard requested that a first step
grievance meeting be held on the Renfrow grievance. At that
meeting, on June 15, 1995, the new Union chief steward said that
since the grievant was not present and wanted to drop the
grievance, the Union would not pursue it.
By letter dated July 5, 1995, the Respondent advised Mr.
Renfrow and his Union representative, in part, as follows:
After reviewing the grievance and fully considering
Union concerns raised by Mr. Bullard during the [June
13,1995] meeting, I have decided the remedial action
sought in this grievance has been effected through Mr.
Coleman's apology to you and Union concerns addressed
during our meeting.
Discussion and Conclusions
In Department of Health and Human Services,
Social Security Administration, Baltimore, Maryland and Social
Security Administration, Region X, Seattle, Washington, 39
FLRA 298, 311 (1991) (SSA, Region X), the
Authority set forth the following principles:
Agencies unlawfully bypass an exclusive representative
when they communicate directly with bargaining unit
employees concerning grievances, disciplinary actions and
other matters relating to the collective bargaining
relationship. See, for example, Depart-ment of the Air
Force, Sacramento Air Logistics Center, McClellan Air
Force Base, California, 35 FLRA 345 (1990) (McClellan Air
Force Base). Such conduct constitutes direct dealing with
an employee and is violative of section 7116(a)(1) and (5)
of the Statute because it interferes with the union's
rights under section 7114(a)(1) of the Statute to act for
and represent all employees in the bar-gaining unit. Such
conduct also constitutes an independent violation of
section 7116(a)(1) of the Statute because it demeans the
union and inherently interferes with the rights of employees
to designate and rely on the union for representation. See,
for example, id.; 438th Air Base Group (MAC) McGuire Air
Force Base, New Jersey, 28 FLRA 1112 (1987) (McGuire Air
Force Base); Social Security Administration, 16 FLRA 434
The Respondent, by Supervisor David Coleman, unlawfully
bypassed the Union by meeting with bargaining unit employee Graham
Renfrow sometime after May 18, 1995, but prior to June 13, 1995,
and dealing with Renfrow directly concerning his May 18, 1995
grievance without affording the Union notice and an opportunity to
be represented. Consistent with SSA, Region
X, the Respondent's conduct interfered with the Union's
rights under section 7114(a)(1) to act for and represent all
employees in the bargaining unit, and thereby violated section
7116(a)(1) and (5) of the Statute. By the same conduct, the
Respondent demeaned the Union and inherently interfered with the
rights of employees to designate and rely on the Union for
representation, and thereby independently violated section
7116(a)(1) of the Statute. Seealso
U.S. Department of Justice, Bureau of Prisons,
Federal Correctional Institution, Bastrop, Texas, 51 FLRA
1339 (1996) (FCI, Bastrop) (unlawful bypass
found citing SSA, Region X principles).
Based on the above findings and conclusions, it is recommended that the Authority issue the following Order which is consistent with the remedy afforded by the Authority in SSA, Region X and FCI, Bastrop and which it is believed will effectuate the purposes and policies of the Statute in this
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute,
it is hereby ordered that the Department of the Army, Headquarters,
XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina
1. Cease and desist from:
(a) Failing and refusing to bargain in good faith with the American Federation of Government Employees, AFL-CIO, Local 1770 (the Union), the exclusive representative of certain of its employees, by bypassing the Union and communicating directly with a bargaining unit employee concerning a grievance.
(b) Interfering with the right of its employees to
designate and rely on the Union to process their grievances through
the negotiated grievance procedure.
(c) In any like or related manner interfering
with, restraining, or coercing its employees in the exercise of
their rights assured by the Federal Service Labor-Management
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Federal Service
Labor-Management Relations Statute:
(a) Notify and give the Union an opportunity
to be represented whenever any management official or supervisor
intends to meet with a bargaining unit employee to discuss the
subject matter or the resolution of any grievance being processed
by the Union on behalf of the employee under the parties'
negotiated grievance procedure.
(b) Post at its facilities at Fort Bragg,
North Carolina, copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the Commander, and shall be
posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places
where notices to employees are customarily posted. Reasonable steps
shall be taken to insure that such Notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the
Authority's Rules and Regulations, notify the Regional Director of
the Denver Region, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, DC, August 8, 1996
GARVIN LEE OLIVER
Administrative Law Judge
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.
We hereby notify our employees that:
WE WILL NOT fail and refuse to bargain in good faith with the American Federation of Government Employees, AFL-CIO, Local 1770 (the Union), the exclusive representative of certain of our employees, by bypassing the Union and communicating directly with a bargaining unit employee concerning a grievance.
WE WILL NOT interfere with the right of employees to designate
and rely on the Union to process their grievances through the
negotiated grievance procedure.
WE WILL NOT in any like or related manner interfere with,
restrain or coerce employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations
WE WILL notify and give the Union an opportunity to be
represented whenever any management official or supervisor intends
to meet with a bargaining unit employee to discuss the subject
matter or the resolution of any grievance being processed by the
Union on behalf of the employee under the parties' negotiated
Date: _________________________ By: ________________________________ (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced or covered by any
If employees have any questions concerning this Notice or
compliance with any of its provisions, they may communicate
directly with the Regional Director of the Federal Labor Relations
Authority, Denver Region whose address is: 1244 Speer Boulevard,
Suite 100, Denver, Colorado 80204, and whose telephone number is:
1. Counsel for the General Counsel's unopposed motion to correct the transcript is granted; the transcript is corrected as set forth therein. Counsel for the General Counsel's motion to strike Respondent's brief as untimely filed is denied. Briefs were to "be placed in the mail on or before June 3rd, 1996." The certificate of service on Respondent's brief reflects that this was done.
2. Counsel for the General Counsel requested that the Respondent be ordered to schedule joint management/Union training in the Statute by an entity other than the Department of the Army or its agencies and that the official personnel file of Supervisor Coleman be annotated to reflect such training as a result of this violation. Counsel has not directed my attention to any decision where the Authority has concluded that the purposes of the Statute would be enhanced by such an order and notice in similar situations. However, the law in this area is not static and in United States Department of Justice, Immigration and Naturalization Service, 51 FLRA 914, 916 (1996), the Authority recently found that the purposes of a notice to bargaining unit employees would be enhanced by changing the customary notice and explicitly stating that the Authority found the Respondent to have violated the Statute.