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                                         FEDERAL LABOR RELATIONS AUTHORITY          OALJ 13-07                                                                                                                  Office of Administrative Law Judges                                                                                                                                                                                 WASHINGTON, D.C.

                                          CHARGING PARTY
Case No. CH-CA-10-0076
Kenneth Woodberry
               For the General Counsel
Brian A. Tuftee
Joan P. Altman
Nick Bugos
                For the Respondent
Craig Flenker
                For the Charging Party
Before:    RICHARD A. PEARSON     
                Administrative Law Judge

            On or about October 27, 2009, employees on one of three shifts assigned to the “212” welding shop of the Joint Manufacturing and Technology Center at the Rock Island Arsenal were called to a meeting conducted by the shop supervisor. At the meeting, the supervisor polled employees on whether they would be in favor of altering the work schedules then in effect.  Because the supervisor solicited employee opinion on a possible change in conditions of employment and the Union was excluded from any involvement in the matter, the communication constituted unlawful direct dealing with bargaining unit employees and was an unfair labor practice.  

                                                               STATEMENT OF THE CASE

This is an unfair labor practice proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. §§ 7101 et seq. (the Statute), and the Rules and Regulations of the Federal Labor Relations Authority (the Authority), 5 C.F.R. part 2423.
On November 5, 2009, the American Federation of Government Employees, Local 2119 (the Union or Charging Party), filed an unfair labor practice charge against the Department of the Army, Rock Island Arsenal, Rock Island, Illinois. G.C. Ex. 1(b). After investigating the charge, the Regional Director of the Chicago Region of the Authority issued a Complaint and Notice of Hearing on September 30, 2010, alleging that the U.S. Department of the Army, Joint Manufacturing and Technology Center, Rock Island Arsenal, Rock Island, Illinois (the Agency or Respondent), bypassed the Union and dealt directly with bargaining unit employees when it polled employees concerning their preference as to proposed changes in days off, in violation of section 7116(a)(1) and (5) of the Statute. The Respondent filed its Answer to the Complaint on October 20, 2010, denying that it committed an unfair labor practice.
            A hearing was held in this matter on November 30, 2010, in Rock Island, Illinois. All parties were represented and afforded an opportunity to be heard, to introduce evidence, and to examine witnesses. The General Counsel and the Respondent filed post-hearing briefs, which I have fully considered.
            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 recommendations.
The Respondent is an agency within the meaning of section 7103(a)(3) of the Statute. GC Ex. 1(c), 1(e). The Union represents a bargaining unit consisting of all nonsupervisory wage grade employees at Rock Island Arsenal. Resp. Ex. 1 at 4.  The Respondent and Union are parties to a collective bargaining agreement (CBA) which remains in effect. Resp. Ex. 1. Within the Joint Manufacturing and Technology Center is a welding fabrication shop that is located in Building 212 and is referred to as the 212 weld shop. Tr. 13, 113. At the time of the events involved in this case, the 212 weld shop was supervised by James Knapp. Tr. 113. Knapp had 56 employees under his supervision. Tr. 115.  Prior to September 2009,[1]all employees in the 212 weld shop worked a Monday through Friday tour of duty that consisted of three different shifts, and for about the previous four years, employees had been working seven days a week, with Saturday and Sunday being covered by employees working overtime. Tr. 21, 30, 71, 131.
In September, the Agency instituted what the witnesses at the hearing referred to as “AWS” (alternative work schedules), which consisted of three different tours of duty, each of which had three shifts at the 212 weld shop. Tr. 14, 18-19, 114-15. On Tour 1, employees worked Monday through Friday with Saturday and Sunday as their normal days off; on Tour 2, employees worked Wednesday through Sunday with Monday and Tuesday off; and on Tour 3, employees worked Saturday through Wednesday with Thursday and Friday off. Tr. 18, 114-15. AWS was instituted for the purpose of permitting the shop to operate seven days a week without using overtime. Tr. 114.
The AWS program sparked numerous complaints from employees, based on things such as its effect on child care, custody issues and home life that were voiced to both the Union steward in the 212 weld shop and the supervisor. Tr. 28-29, 38-40, 99-100, 115-17. In response to those complaints and to a suggestion from an employee that the situation could be ameliorated by changing the work schedules so that all employees got at least one weekend day off, Knapp conveyed that suggestion to his supervisors. Specifically, Knapp mentioned to his branch chief the idea that the tours be changed to Monday through Friday, Tuesday through Saturday, and Sunday through Thursday, thereby giving every employee at least one weekend day off. Tr. 118-19, 133-34. According to Knapp, the branch chief relayed the idea to the division chief, who later approached Knapp and said, “let’s see how much interest we have in this. We could be able to do this if that’s what everybody actually wants to do.” Tr. 133. Accordingly, Knapp raised the question at one of his regular weekly meetings with employees on the day shift on or about October 27[2] and asked them whether they would prefer that their days off be Sunday/Monday and Friday/Saturday rather than Monday/Tuesday and Thursday/Friday.[3]   Tr. 15, 42, 45-47, 50, 59-60, 99-101, 119, 134.
Dewayne Lamp, who was both a Union steward and an employee in the 212 weld shop, was present at the meeting. Tr. 13.  During the meeting, Lamp objected to a poll being conducted, asserting that the proposal involved had not been presented to the Union. Tr. 14-15, 120. Although Lamp and Knapp gave somewhat different descriptions of Knapp’s response to the former’s objection, they were in accord that the polling proceeded. Tr. 15, 120. The testimony provided by the various witnesses differed with respect to the precise details of the question or questions presented to the employees, and some witnesses recalled specifics that others did not. But the variations in the accounts of the meeting are simply what can normally be expected from any group of people asked to describe the same event a year later. The most plausible scenario that emerges from the various accounts is that after explaining the possible change to the tours of duty, Knapp asked for a single show of hands on whether employees favored changing Tour 2 from having Monday and Tuesday off to having Sunday and Monday off, and changing Tour 3 from having Thursday and Friday off to having Friday and Saturday off.  Tr. 60, 119.  Employees voted nearly unanimously in favor of the proposal Knapp placed before them.  Indeed, when Union steward Lamp objected to Knapp polling the employees without discussing it first with the Union, some employees expressed their resentment of Lamp’s conduct. Tr. 120-21, 129.  Some employees used the meeting as an opportunity to volunteer comments about the AWS system and their problems with it. Tr. 15-16, 43, 47-48. There is no evidence, however, that Knapp solicited those comments or engaged in discussion with the employees making them.  Tr. 42-43, 47-49, 62-63, 120. While Lamp and another witness got the impression that management had already made up its mind to modify the tours of duty as Knapp outlined (Tr. 16, 67-68), Knapp testified that he did not get approval from management regarding a change in tours of duty until later, and that he told employees at the meeting that the change still needed to be approved by higher management (Tr. 121, 128, 137).
Knapp testified that he reported the results of the polling to his supervisors and several days later was informed that he could adopt the altered work schedules that had been the subject of the poll. Tr. 134-35. According to Knapp, the employees were allowed to bid for the schedule they wanted and assignments were made based on seniority; however, a few days before the new schedule was to be implemented, the implementation was cancelled. Tr. 135-36. In early 2010, the AWS system was rescinded entirely, and employees on all three shifts at the 212 weld shop reverted to the Monday through Friday work schedule that had been in place prior to 2009. Tr. 23, 37-38, 65, 87, 116, 135-36.
There is no evidence that the Respondent involved the Union at any point in either the polling of employees or its plans to adopt and implement the altered work schedule that was the subject of the polling. Knapp testified that a higher-level manager would have handled any bargaining with the Union and that he would not have been involved in bargaining. He said he assumed, when he was told to survey employees, that his upper management would take care of any necessary dealings with the Union. Tr. 121-22, 131-32. Lamp testified that he knew of no negotiations with the Union concerning the question of altering the work schedules or tours of duty. Tr. 16-17.  No evidence was introduced to rebut Lamp’s testimony in that regard.
Positions of the Parties

General Counsel
            The General Counsel (GC) contends that the Agency unlawfully solicited employee opinion about a possible change in their tours of duty, despite the Union representative’s objection and without the Union’s permission, and that the Agency intended to implement that change without providing the Union an opportunity to bargain. The GC argues that the circumstances involved in this case are not materially different than those in Air Force Accounting & Fin. Ctr., Lowry AFB, Denver, Colo., 42 FLRA 1226 (1991)(Lowry AFB), and Dep’t of Transp., Fed. Aviation Admin., Los Angeles, Cal., 15 FLRA 100 (1984)(FAA), where the Authority found violations of the Statute.   The GC asserts that the Respondent in this case, as in Lowry and FAA, bypassed the Union and dealt directly with bargaining unit employees regarding a condition of employment in violation of section 7116(a)(1) and (5) of the Statute. The GC asserts that the Agency’s actions constituted an independent violation of section 7116(a)(1) as well.
            As a remedy, the General Counsel seeks an order requiring the Respondent to post a notice to employees that is signed by the Respondent’s Commander.                           
            The Respondent denies that it violated the Statute as alleged. Citing Nat’l Treasury Employees Union v. FLRA, 826 F.2d 114 (D.C. Cir. 1987), Respondent notes that although agencies must deal only with the exclusive representative of bargaining unit employees concerning the conditions of employment of those employees, there is no “per se rule against any direct solicitation by management of information concerning conditions of employment from employees” represented in a bargaining unit. Id. at 122 (emphasis in original). While acknowledging that under NTEU v. FLRA, any solicitation of information from employees must avoid negotiating directly with employees, Respondent insists that it didn’t cross that line. Id. at 123. It does not deny that Knapp polled employees, but asserts that in his discussion with employees on October 27, Knapp never suggested that employees put pressure on the Union to take a particular course of action, nor did he coerce employees, threaten them, or promise them any benefits. The Respondent also maintains that because the AWS did not change after Knapp polled employees, it cannot be found to have bypassed the Union by implementing employee suggestions.  This distinguishes the instant case from Lowry and others, where the Authority found the agency solicited employee opinions and then implemented them. Pointing to testimony by employee witnesses that management’s intention was to adopt the altered work schedules regardless of the outcome of the poll, the Respondent contends that its decision not to follow the employees’ suggestion demonstrates that it was never seeking to negotiate directly with employees or to undermine the Union.
Finally, the Respondent asserts that the parties’ collective bargaining agreement requires that it obtain employee input before taking certain actions, and it contends that Knapp’s poll was consistent with this contractual requirement. The pertinent portion of the CBA is Article 8, entitled Hours of Work and Basic Work Week. Resp. Ex. 1. The relevant sections of Article 8 provide:
Section 2.

a.      Tour of duty means the hours of a day and the days of the week that constitute an employee’s regular scheduled workweek.
b.     Basic workweek refers to the days of the week on which work is scheduled.
c.      Shift refers to hours of a day in which work is scheduled.

Section 3.  When possible, a tour of duty shall consist of five (5) eight (8) hour days, Monday through Friday unless a compressed work schedule (CWS) is being utilized.

Section 4. When the Employer finds a need to change established tours of duty, the Union will be notified as far in advance as possible, normally not less than five (5) workdays. The Union may request negotiations, as appropriate, on the change as provided for under Article 6 of this agreement.
Section 11.  The staffing of second and third shifts, shall be in accordance with the following procedures:
a.      The Employer retains the right to determine the numbers and classification of positions assigned to an organizational unit or shift.
b.     Staffing of shifts to include changes in staffing, will be accomplished in the following manner:
(1) Prior to the Employer announcing staffing needs, the team will provide input to the team manager for consideration in determining the number, types and grades of the employees needed on each shift to accomplish the mission.
Id. at 18-20. The Respondent in particular cites Section 11(b)(1), requiring supervisors to solicit “input” from employees regarding “staffing needs”, as the contractual basis for Knapp’s meeting on October 27. It further cites a Memorandum of Agreement (MOA) entered into by the parties in 2007, which settled several grievances, as affirming the requirement that supervisors reach out to team members for “input” in determining staffing needs. The pertinent paragraph of the MOA provides:
2. Gary Milefchik, the Director of AMSTA-RI-PD will direct his staff to address their employees prior to regular shift staffing. Those Management representatives will ask their teams if they have any input to the staffing needs necessary in their area prior to shift staffing requirements being determined by management. Management will inform the teams of the requested information a minimum of two weeks in advance to afford them sufficient opportunity to submit their proposals. 
Resp. Ex. 2. Both Knapp and a labor relations specialist at the Arsenal testified that the possible change in tours of duty discussed on October 27 was “the same thing” as the shift staffing matter referenced in the CBA and MOA. Tr. 122-23; see also Tr. 84, 92-94. Although the two provisions quoted above refer to the staffing shifts, and not changes in tours of duty or days off, any change in the AWS and its tours of duty would require all the shifts to be re-staffed. Tr. 84. Therefore, the Respondent argues that it cannot be found to have committed an unfair labor practice when it was simply following the agreements negotiated by the parties.   
            Section 7114(a)(1) of the Statute provides that once a union has been accorded exclusive recognition for a bargaining unit of employees, it is entitled to act for and negotiate collective bargaining agreements covering employees in the unit.   Pursuant to this principle, an agency is obligated to deal only with the exclusive representative concerning any matter affecting conditions of employment of employees in the bargaining unit for which the union holds exclusive representation. See, e.g., AFGE, Nat’l Council of HUD Locals 222, 54 FLRA 1267, 1276 (1998)(HUD). An agency fails in that obligation when it deals directly with unit employees on matters that are within the sole authority of the union. Id. at 1276-77. Under Authority precedent, an agency violates section 7116(a)(1) and (5) of the Statute when it deals directly with employees in a bargaining unit concerning their conditions of employment in a manner that interferes with the union’s rights under section 7114(a)(1) to act for and represent all employees in the bargaining unit.  Id. at 1278. The Authority also holds that direct dealing, or bypass as it is also referred to, additionally constitutes an independent violation of section 7116(a)(1), because it demeans the union and inherently interferes with the rights of employees to designate and rely on the union for representation. See, e.g., U.S. Dep’t of the Treasury, IRS, 64 FLRA 972, 977 (2010)(IRS).
            In its case law, the Authority has not defined the phrase “direct dealings” but rather has relied on examples of conduct that constitutes direct dealing, in order to elucidate the concept. See, e.g., HUD, 54 FLRA at 1278-79, and cases cited therein. As the Respondent has noted, the Authority recognizes that not all contacts between an agency and bargaining unit employees constitute direct dealings that violate the Statute.  Id. at 1279; IRS at 977. An agency can lawfully communicate with employees on matters affecting conditions of employment, if it does not exclude or undermine the exclusive representative and recognizes its obligation to bargain only with the union. HUD,54 FLRAat 1279. The Authority has also looked at decisions of the National Labor Relations Board in interpreting comparable provisions of the National Labor Relations Act, and it has observed that the two agencies take similar approaches to allegations of direct dealing. Id. at 1280; Allied-Signal, Inc., 307 NLRB 752, 753-54 (1992). The NLRB has identified three criteria for determining whether employer communications with employees are unlawful: (1) whether the employer was communicating directly with union-represented employees; (2) whether the discussion was for the purpose of establishing or changing wages, hours, and terms and conditions of employment or undercutting the union’s role in bargaining; and (3) whether such communication was made to the exclusion of the Union. See, e.g., Permanente Med. Group, Inc., 332 NLRB 1143, 1144 (2000). While the Authority has not expressly adopted these same criteria, it has held that the determinative factor in unlawful direct dealing is whether the agency’s conduct undermines the union’s status or authority as the employees’ exclusive representative. HUD,54 FLRA at 1280.   
            With respect to the specific matter of polling employees, the Authority has stated that the prohibition on direct dealing with unit employees does not absolutely prevent an agency from seeking information or opinions directly from employees.  See IRS, 64 FLRA at 977.   The Authority recognizes that as part of their overall management responsibility, agencies must have the latitude to gather information and opinions from unit employees for the purpose of ensuring the efficient and effective conduct of agency operations.  Id. In determining whether polling employees violates the Statute, the Authority considers the following: the nature of the information sought, the manner in which the polling was conducted, how the information was used, and similar relevant factors. Id. at 977-78. In considering these factors, the Authority looks at whether an agency’s efforts to obtain information amounted to an attempt to deal or negotiate directly with employees concerning their conditions of employment, or created the appearance of doing so, and whether the agency intended to or did use the information obtained in a way that would undermine the status of the union. Id. at 978.    
            In this case, the evidence indicates that while Knapp told employees that management was seriously considering changing the tours of duty, he also told them that management wanted to know how they, the employees, felt about it, and that higher management would ultimately make a decision. Further, while he listened to their complaints about the AWS, he did not engage in a back-and-forth discussion of possible alternative solutions; instead, he simply asked for a show of hands regarding the altered tours of duty that he had already described. Thus, I find that Knapp did not directly negotiate with employees regarding changes in their work schedule. Nonetheless, I do find that the Respondent conducted the poll and used the information obtained in it in a manner that undermined the status and authority of the Union. 
First, the nature of the information sought by Knapp distinguishes it from the cases in which agencies conduct general surveys of employee views. See, e.g., Dep’t of HHS, Soc. Sec. Admin., 19 FLRA 415 (1985); Internal Revenue Serv., 11 FLRA 69 (1983). The information sought by Knapp was very narrowly focused on one issue, and it related directly to a proposal being considered by management for changing a condition of employment. By seeking to find out whether employees in the weld shop approved of the idea, Knapp was asking them the very question that he (or his superiors in management) should have been asking the Union, because that is the Union’s role, as exclusive representative of the employees.  Thus, the facts of this case more closely resemble those of the Lowry AFB and FAA decisions cited by the General Counsel. 
It is also significant that at no point was the Union included in the polling process, nor was the Union afforded an opportunity at any time to bargain concerning the action the Respondent planned to implement as a result of the poll. Knapp testified that he assumed his superiors would notify the Union and bargain with it, but nothing of the sort was done. Exclusion of the exclusive representative is a crucial factor in both the Authority and the Board finding unlawful direct dealing, and it weighs heavily against the Respondent here.
Other indicia of direct dealing here are the facts that senior management directed Knapp to conduct the poll, and that based on the results of the poll, management began to take actions to change the tours of duty as Knapp had described. While the Respondent suggests that its ultimate decision not to implement the schedule changes demonstrates that Knapp’s meeting was just a harmless, academic exercise, the facts do not bear this out. Knapp testified that after he told his superiors that employees supported the change, they instructed him to put the new tours of duty into effect, and he began doing just that: employees submitted requests for the tours of duty they wanted, and assignments were made. It is therefore clear that Respondent intended to change conditions of employment, based in significant part on the employees’ vote of support. The Respondent’s subsequent decisions not to change the tours of duty, and later to scrap the AWS entirely, did not negate the message sent by its earlier actions:  that employees could obtain the improvements they wanted by working directly with management.  
Indeed, there is evidence that employees understood this message immediately when Knapp polled employees. When Union steward Lamp objected to Knapp polling the employees about a prospective change in conditions of employment, Knapp himself noticed that some employees got angry at Lamp, and Knapp had to “settle the group down.” Tr. 121. The AWS system was widely unpopular with both the employees and the Union, so when Lamp properly cautioned Knapp about discussing a change with employees before discussing it with the Union, it was quite predictable that the Union would be seen by emloyees as an obstacle to progress, rather than a facilitator of it. Lamp and the Union were forced, by the premature actions of the Respondent, to play the role of the “bad cop” to Knapp’s “good cop,” and it is precisely what the Authority means when it says that such conduct “inherently undermines the status of the Union and constitutes a violation of the Statute.” Lowry AFB, 42 FLRA at 1226, 1239; see also Dep’t of the Treasury, IRS, Kansas City Serv. Ctr., Kansas City, Mo., 57 FLRA 126, 129 (2001).   
            In its defense, the Respondent contends that its action in polling employees fulfilled a requirement contained in both the CBA and the 2007 MOA.   In support, the Respondent cites U.S. Customs Serv., Customs Mgmt. Ctr., Miami, Fla., 56 FLRA 809 (2000)(Customs). The Respondent’s citation to Customs is accompanied by a cryptic parenthetical that is not helpful in identifying the particular theory it is asserting. Customs involved the “covered by” defense, which is not applicable to our case. As the Authority noted in Soc. Sec. Admin., Region VII, Kansas City, Mo., 55 FLRA 536, 538 (1999), the covered by defense applies only to refusal-to-bargain cases; in our case, the Agency is accused not of refusing to bargain but of bypassing the Union.[4]   The doctrine asserted by the Respondent is more appropriately understood as a “contract interpretation” defense, as set forth in IRS, Wash., D.C., 47 FLRA 1091 (1993). The contract interpretation defense asserts that an action alleged to be an unfair labor practice is permitted by a provision of the parties’ CBA, and it can apply both to allegations of a refusal to bargain and to other types of ULPs.
Applying the contract interpretation doctrine to this case does not help the Respondent, however. The poll that Knapp conducted on October 27 concerned only the question of which days of the week employees would be scheduled to work (or conversely, which days they would be off) - -it did not address the hours of the day they would work.  The terms “tour of duty” and “shift” are clearly defined in Section 2 of Article 8, and Section 11 of that same article must be interpreted with those definitions in mind. Under the terms of the CBA, Knapp’s poll concerned a possible change to the established tours of duty, not to the staffing of shifts. Additionally, Section 11(b)(1) makes it clear that the “input” that supervisors are required to obtain from employees is to help team managers “in determining the number, types and grades of the employees needed on each shift to accomplish the mission.” By asking employees which days off they preferred, Knapp did not learn anything that would help him in determining the number, types, or grades of employees needed on each shift, even assuming (to paraphrase the Respondent’s witness) that Knapp “was going to be staffing three different shifts.” Tr. 84. The entire context of Article 8 and Section 11 demonstrates that the duty to solicit employee input is narrowly confined to the staffing of shifts.[5] The 2007 MOA simply reaffirms that duty in that same narrow type of situation. Consequently, there is no basis for the Respondent’s claim that the poll fulfilled a requirement established by either the CBA or the MOA.    
            Accordingly, I find the Respondent violated section 7116(a)(1) and (5) by dealing directly with employees when it polled them on the question of whether they would favor altering the work schedules in existence at the time.  The Respondent’s action also constituted an independent violation of section 7116(a)(1) of the Statute.                       
            I recommend that the Authority issue the following Order:

           Pursuant to section 2423.41(c) of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the U.S. Department of the Army, Joint Manufacturing and Technology Center, Rock Island Arsenal, Rock Island, Illinois, shall:

1.      Cease and desist from:
(a)   Bypassing the American Federation of Government Employees, Local 2119,
AFL-CIO (the Union), the exclusive representative of a bargaining unit consisting of certain of its employees, by dealing directly with employees in the bargaining unit concerning conditions of employment.  
(b) Interfering with the rights of employees to designate and rely on the Union to
represent them in matters affecting their conditions of employment.
(c)   In any like or related manner, interfering with, restraining, or coercing its
employees in the exercise of their rights assured by the Statute.
            2.   Take the following affirmative actions in order to effectuate the purposes and policies of the Statute: 
(a) Post at its facilities where bargaining unit employees represented by the
Union are located, 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, U.S. Department of the Army, Joint Manufacturing and Technology Center, Rock Island Arsenal, Rock Island, Illinois, 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 ensure that such Notices are not altered, defaced, or covered by any other material. 
(b) Pursuant to section 2423.41(e) of the Authority’s Regulations, notify the
Regional Director, Chicago Region, Federal Labor Relations Authority, in writing, within
30 days from the date of this Order, as to what steps have been taken to comply herewith. 
Issued Washington, D.C., February 14, 2013
                                                                             RICHARD A. PEARSON
                                                                             Administrative Law Judge


The Federal Labor Relations Authority has found that the U.S. Department of the Army, Joint Manufacturing and Technology Center, Rock Island Arsenal, Rock Island, Illinois, violated the Federal Service Labor-Management Relations Statute (the Statute), and has ordered us to post and abide by this Notice.
WE WILL NOT bypass the American Federation of Government Employees, Local 2119, AFL-CIO (the Union), the exclusive representative of a bargaining unit consisting of certain of our employees by dealing directly with employees in the bargaining unit concerning conditions of employment.
WE WILL NOT interfere with the rights of our employees to designate and rely on the Union to represent them in matters concerning conditions of employment.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Statute.
Dated: ___________________                     By: ____________________________________
                                                                             (Signature)                          (Commander)
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Chicago Regional Office, Federal Labor Relations Authority, whose address is:  224 S. Michigan Avenue, Suite 445, Chicago, IL 60604, and whose telephone number is:  (312) 886-3465.

[1] Unless otherwise noted, all dates refer to 2009. 
[2]Although witnesses at the hearing differed as to the date and time of the meeting, these discrepancies are neither significant nor material. Nobody disputes that the meeting occurred, and precisely when it occurred does not affect the disposition of this case. Moreover, the discrepancies in testimony do not reflect on the credibility of the witnesses.
[3] According to some witnesses, Knapp also indicated that rearranging the tours of duty would help the Agency by having all employees working on three days a week instead of one. Tr. 20, 28, 46-47.
[4] Although the prohibition against direct dealing is a corollary of the duty to bargain, it is separate. An agency can violate the prohibition against direct dealing even in situations where it has no duty to bargain with the union. See Inland Tugs v. NLRB, 918 F.2d 1299, 1310-11 (7th Cir. 1990). 
[5] The contractual requirement to solicit employee input must not be confused with the statutory duty to bargain with the Union. Section 4 of Article 8 explicitly reaffirms the Agency’s duty to notify and bargain with the Union when it wants to change established tours of duty. Even if the Agency had not yet decided whether it wanted to change the tours of duty on October 27, Section 11 did not allow the Agency to deal directly with bargaining unit employees.