[ v17 p823 ]
17:0823(111)CA
The decision of the Authority follows:
17 FLRA No. 111
DEPARTMENT OF DEFENSE
DEPARTMENT OF THE AIR FORCE
ARMAMENT DIVISION, AFSC
EGLIN AIR FORCE BASE, FLORIDA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1817
Charging Party
Case No. 4-CA-20117
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
General Counsel filed exceptions to the Judge's Decision and the
Respondent filed an opposition to the General Counsel's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order.
ORDER
IT IS ORDERED that the complaint in Case No. 4-CA-20117 be, and it
hereby is, dismissed.
Issued, Washington, D.C., May 8, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Major Wade B. Morrison
For the Respondent
Thomas H. Newberry
For the Charging Party
Regina N. Kane, Esq.
For the General Counsel
Before: FRANCIS E. DOWD, Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5
U.S.C. 7101, et seq. It was instituted by the Regional Director of the
Fourth Region of the Federal Labor Relations Authority by the issuance
of a Complaint and Notice of Hearing dated February 23, 1983. The
Complaint was issued following an investigation of an unfair labor
practice charge filed on December 19, 1981, by American Federation of
Government Employees, AFL-CIO, Local 1897, herein referred to as AFGE,
Union or Charging Party.
The Complaint alleges that Department of Defense, Department of the
Air Force, Armament Division, AFSC, Eglin Air Force Base, herein called
Respondent or Employer, has violated sections 7116(a)(1) and (6) of the
Statute by refusing to comply with a Decision and Order of the Federal
Service Impasses Panel, herein FSIP. Respondent denies any violation of
the Statute.
A hearing was held at Eglin Air Force Base, Florida on March 6, 1984,
at which the parties were represented by counsel and afforded full
opportunity to adduce evidence and call, examine, and cross-examine
witnesses and argue orally. Briefs filed by Respondent and the General
Counsel have been duly considered.
Upon consideration of the entire record in this case, including my
evaluation of the testimony and evidence presented at the hearing, and
from my observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions of law, and recommended order.
Findings of Fact
1. Respondent is an agency within the meaning of section 7103(a)(3)
of the Statute. Douglas M. Johnson is a supervisor and/or a management
official within the meaning of section 7103(a)(10) and (11) of the
Statute and an agent of Respondent.
2. The Union is a labor organization within the meaning of section
7103(a)(6) of the Statute and, since on or about April 14, 1975, has
been and is the exclusive representative of an appropriate unit of
employees at Eglin Fir Force Base. A collective bargaining agreement
signed March 6, 1975 and approved April 14, 1975 had, by its terms
(Article 30), a duration of three years from the date it was signed.
(G.C. Exh. No. 23). On August 26, 1981, the terms of the agreement were
extended until the effective date of any new Memorandum of Agreement
(G.C. Exh. No. 2).
3. Air Force Regulations 215-11 (G.C. Exh. No. 3) directs that
Noncommissioned Officer's (NCO) Clubs will be membership clubs and that
membership checks will be conducted periodically to enforce membership
rules. Respondent admits that lax enforcement of this regulation during
the noon meal by club management resulted in a practice prior to January
1981, whereby nonmembers were permitted to eat their noon meal at the
club.
4. Included among the nonmembers using the club during the noon meal
were bargaining unit employees represented by AFGE, the Charging Party
herein, as well as employees in another unit represented by National
Federation of Federal Employees, Local 1940, herein NFFE.
5. In January 1981, club management announced that it planned to
begin strict enforcement of its membership rules by increasing the
frequency of membership checks. In response, NFFE, on January 12, 1981,
requested to bargain about the impact and implementation of the change.
The following day, the Charging Party, also submitted a similar request
to bargain. The Charging Party's proposal was "that the decision to
require all eligible Unit Employees to join and pay dues at the NCO and
Officers' Clubs for the privilege of using the facility during the lunch
hour be suspended until an adequate facility, namely the proposed Base
Exchange Restaurant, be completed which will provide Unit Employees an
alternative to being forced to become members of said Clubs just to be
able to have a suitable place to eat lunch on base". Discussions ensued
between management and the unions, with the sticking point being how
long management would allow non-members to eat lunch in the clubs
without being members or meeting membership criteria (R. Exh. 2-10, G.C.
Exh. 5).
6. Following impasse NFFE requested FSIP assistance by letter dated
March 9, 1981 (G.C. Exh. 6). By letter dated March 19, 1981, AFGE also
requested FSIP assistance (G.C. Exh. 7). AFGE's request for FSIP
assistance was virtually identical with that submitted 10 days earlier
by NFFE. AFGE advised the Panel in its March 19, 1981 submission that
"the dispute is over when the change will be implemented." The "change"
was further set forth as being that previously, "unit members had access
on base to hot, cafeteria-style noontime meals through the facilities of
the Eglin Officers' and Noncommissioned Officers' (NCO) Clubs" and that
they were allowed access "without restriction in that employees using
these facilities were not required to be either members or bona fide
guests of members of these clubs." They further stated that one of their
primary concerns was that "many of the unit members of are not eligible
to join the NCO Club because of their GS and WB grade level. For these
employees, the change effectively bars them from the noontime service
even if they are willing to pay the monthly membership fee" (G.C. Exh.
7). By letter dated April 2, 1981, FSIP directed NFFE and management to
submit their respective positions and proposals by April 13, 1981 and
their rebuttal briefs by April 20, 1981 (G.C. Exh. 8). NFFE's proposal
was that "management reinstate the long standing past practice, recently
discontinued, which allowed unit members to eat lunch at the Eglin
Noncommissioned Officers' (NCO) Club without condition of membership in
the club. Such a club is to remain open and provide adequate feeding
facilities to all unit members regardless of their club membership
status or eligibility until such time as an adequate appropriated fund
cafetaria is made available to our unit members" (G.C. Exh. 9).
Additionally, NFFE attached its March 9, 1981 submission as further
explanation of its position. As noted above, that document advised FSIP
that "the dispute is over when the change will be implemented" and
identified the change as no longer permitting bargaining unit employees
to eat lunch at the clubs irrespective of their membership status (G.C.
Exh. 9). Both parties later submitted rebuttal briefs in accordance
with FSIP's direction, further arguing the merits of their positions
(Resp. Exh. 12 and 13). On April 23, 1981, FSIP notified AFGE and
management that their previously submitted statements of position (G.C.
Exh. 7 for AFGE; G.C. Exh. 10 for management) would constitute their
initial submission and that rebuttal briefs were to be submitted by May
1, 1981. Both parties submitted rebuttal briefs (G.C. Exh. 12 and 13).
7. Thereafter, FSIP joined the two cases and issued a decision on
June 9, 1981, ordering that the unions' (plural) proposal be adopted
(G.C. Exh. 14). In its decision, FSIP stated that the issue before it
was whether implementation of the Employers's decision concerning unit
employees' lunchtime use of the NCO Club should be suspended until a new
cafeteria was built and in service. /1/ In its decision, FSIP set forth
the "parties" proposals as follows:
Both Unions propose that the decision to close the NCO Club to
nonmembers be rescinded and implementation deferred until a new
cafeteria has been opened (which is scheduled to take place in
October 1982). The Employer proposes that membership requirements
remain in effect for both clubs.
In its conclusion, FSIP stated as follows:
Having considered the arguments and evidence, we conclude that
the current eating arrangements, as reflected in the Employer's
proposal, are unfair to those employees not eligible to join the
NCO Club. In addition, the Employer has not shown any compelling
reasons why the past practice must be changed at this time. The
Union's proposal, on the other hand, would not preclude the
Employer from acting but would merely delay implementation of its
decision with regard to NCO Club privileges until the cafeteria is
in service. For all of these reasons, the Union's proposal
provides a more reasonable basis for the resolution of this
dispute.
8. On July 10, 1981, management sent a letter to each union
specifying how it intended to comply with FSIP's order (G.C. Exh. 15,
Resp. Exh. 11). Specifically, the Respondent proposed to grant
temporary civilian membership privileges to any member of the Union's
bargaining unit who was not currently eligible for membership (grades
GS-10 or equivalent and above). Further, Respondent proposed that each
individual who applied for temporary membership would be issued an
identification card and would be assured the normal membership fee of
four dollars per month. NFFE concurred with the proposed action (Resp.
Exh. 11), while AFGE rejected it G.C. Exh. 16). On July 22, 1981,
management asked FSIP to clarify its Decision and Order (G.C. Exh. 17).
By supplemental decision dated September 18, 1981, FSIP stated that
management's proposed action did not comply with its earlier decision
(G.C. Exh. 19). FSIP also advised the Respondent that "unless the
parties agree otherwise-- as the Employer and Local 1940 have done-- the
specific language of the Panel's Order is binding on the parties during
the term of the agreement pursuant to Section 7119(c)(5)(c) of the . . .
Statute . . . ."
9. By letter dated October 22, 1981, management advised AFGE that it
intended to comply with FSIP's Order by waiving its NCO Club membership
eligibility and dues requirements for the noon meal until the Base
Exchange cafeteria opened. It further proposed to issue "lunch cards"
to facilitate entry of non-members eligible to eat lunch pursuant to
FSIP's Order. A one-time administrative fee of $1.00 was to be charged
for the lunch card (G.C. Exh. 20). By letter dated October 26, 1981,
AFGE advised management that its proposed action was unacceptable in
that "it imposes changes in the Past Practice" and it failed to provide
for three separate notices in the Eglin Bulletin (G.C. Exh. 21).
Neither party sought a determination from FSIP as to whether
Respondent's proposal constituted compliance. However, on November 18,
1981, Respondent notified the union that it was dropping the $1.00
administrative fee requirement and would publish the notice in three
issues of the Eglin Bulletin (G.C. Exh. 22). The lunch passes (Resp.
Exh. 14(b)) were issued to AFGE employees as they entered the NCO Club
for lunch, or were issued during business hours in the Club's
administrative office. They were issued for an indefinite period and
were used to facilitate identification of those entitled to eat lunch at
the NCO Club pursuant to FSIP's Order. Issuance of the passes usually
took less than a minute. No administrative fee was ever charged for one
of these passes.
Discussion and Conclusions of Law
Section 7116(a)(1) of the Statute makes it an unfair labor practice
for an agency to "interfere with, restrain, or coerce" any employee in
the exercise of that employee's rights under that Statute. Section
7116(a)(6) makes it an unfair labor practice for any agency to fail or
refuse to cooperate in impasse procedures and decisions of the FSIP. It
is well established that a refusal to comply with a final order of the
FSIP constitutes a violation of Sections 7116(a)(1) and (6) of the
Statute. Michigan Army National Guard, Lansing, Michigan, 11 FLRA No. 4
(1983); Florida National Guard, 9 FLRA No. 41 (1982); National Guard
Bureau, Marine Air National Guard, Augusta, Maine, 10 FLRA No. 101
(1982).
The FSIP Decision and Order which is the subject of this controversy
was dated June 19, 1981. As noted above, FSIP ordered Respondent to
adopt the Union proposal which FSIP itself characterized as follows: ".
. . that the decision to close the NCO Club to nonmembers be rescinded
and implementation be deferred until a new cafeteria has been opened . .
. ." My review of the FSIP decision and record upon which it was based
/2/ leads me to conclude that the focus of FSIP's concern was the fact
that Respondent's proposed change would effectively bar some AFGE (and
NFFE) unit members from eating at the NCO Club as in the past. Thus,
FSIP specifically noted that the Employer's proposal was "unfair to
those employees not eligible to join the NCO Club". I find nothing in
FSIP's decision to indicate any concern-- one way or the other-- with
the right of Respondent to enforce its regulations with respect to
persons other than AFGE (and NFFE) unit members who were being adversely
affected by the decision to institute more frequent membership checks
and thereby exclude nonmembers. With a record showing that a new
cafeteria was scheduled for completion in October 1982, about 16 months
later, FSIP simply observed no compelling reason for Respondent to
change its "past practice." FSIP's unfortunate use of the term "past
practice" has apparently caused the General Counsel to misinterpret
FSIP's decision as requiring Respondent not to change the status quo as
existed prior thereto. Thus, the General Counsel contends that
Respondents "went beyond the parameters of the June 9, 1981 FSIP
Decision and Order, as clarified on September 18, 1981, by imposing
conditions other than what has been the established past practice . . .
." Further, the General Counsel contends that the issuance of yellow
cards or lunch passes to AFGE unit members does not by any "stretch of
the imagination" constitute compliance with the "strict terms" of FSIP's
decision.
I do not interpret FSIP's decision in the same manner as the General
Counsel. I conclude that FSIP's use of the term "past practice" was
only intended to refer to the practice of not enforcing the requirement
of membership. The vice of Respondent's original proposed compliance
was that it was requiring temporary membership, in contrast to the past,
and even though eligibility requirements were waived. I believe this is
why FSIP rejected Respondent's proposal. Respondent's second proposed
compliance involving a $1.00 administrative fee was rejected by AFGE,
not implemented by Respondent, not appealed to FSIP, and not
specifically referred to in the charge or the complaint. In these
circumstances, I find it unnecessary to speculate on whether imposition
of $1.00 administrative fee, even if implemented by Respondent, would
have constituted compliance. /3/ Respondent's third proposal-- the only
one really implemented for all practical purposes-- was the issuance of
yellow cards or lunch passes, which cost nothing. While it is true that
these were not required before, I do not find that this requirement was
barred by FSIP's decisions. To conclude that FSIP intended to bar any
change, especially one as trivial as this one, is to read too much into
FSIP's decisions. To also conclude that FSIP intended to bar the
Respondent from enforcing its regulations vis-a-vis persons other than
AFGE unit employees, is to presume that FSIP's jurisdiction over the
instant dispute extends to the conditions of employment of persons who
are not members of AFGE's appropriate unit (See Resp. brief pp. 9-11).
In the circumstances of this case, I am reluctant to conclude that
compliance with FSIP's decision required Respondent to do anything more
than rescind their proposed decision requiring membership in the NCO
Club and continue to permit AFGE unit members to use the Club at the
noon meal, until the new cafeteria was completed. The issuance of
yellow lunch cards does not constitute a "restriction", as suggested by
the General Counsel, because it neither prevents an AFGE unit member
from eating at the Club nor does it result in any out-of-pocket costs.
/4/ Rather, the issuance of yellow cards or passes to AFGE unit members
merely served as a simple and expeditious method of identifying them as
persons who are permitted to eat at the club notwithstanding their
nonmembership. As a result, only persons with membership cards or
yellow lunch cards could eat at the club and all others could be
excluded. I find that this was a reasonable accommodation on
Respondent's part and constituted compliance with FSIP's decision. /5/
Accordingly, I do not find a violation of Section 7116(a)(1) and (6) of
the Statute and it is recommended that the Authority issue the
following:
ORDER
That the Complaint in Case No. 4-CA-20117 be, and it hereby is,
dismissed. /6/
FRANCIS E. DOWD
Administrative Law Judge
Dated: July 12, 1984
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ The parties stipulated at the hearing that the cafeteria
contemplated in FSIPS decision has been built and is in service.
/2/ In my opinion, I need only review the same record FSIP had before
it so that I can decide what FSIP intended by its decision which I am
being asked to interpret. I do not believe it is necessary for me, in
the circumstances of this case, to go outside that record in order to
determine what the past practice was prior to the dispute which went to
FSIP for decision. For this reason, I believe that all I need to know
is what FSIP thought the past practice was on the basis of the
submissions of the parties to FSIP. Accordingly, the testimony of
General Counsel's witnesses as to "past practice" was irrelevant; a
hearing was not necessary; and this record should have been stipulated,
either to me or directly to the Authority. The testimony of General
Counsel's witnesses was not only irrelevant, but it was not helpful in
resolving the issues posed herein.
/3/ Respondent's first and second proposed compliance were not
alleged in the charge but even if they were so alleged, I would find
that neither were implemented after their rejection by AFGE. Moreover,
FSIP itself already ruled on the first proposal when it issued its
clarification decision-- a decision which was obviously necessary.
/4/ The General Counsel has not established by a preponderance of the
evidence that the Union ever proposed to Respondent, as alleged in
paragraph 7(d) of the complaint "in substance that the past practice of
permitting unlimited and unrestricted access to the noncommissioned
officers' club without the use of passes or imposition of fees be
continued until the completion of the construction of a Base Exchange
restaurant."
/5/ In view of my decision in this basis, I find it unnecessary to
pass upon Respondent's other defense that FSIP's decision is only
binding on the parties during the term of a collective bargaining
agreement unless the parties agree otherwise. The parties stipulated
that there was no agreement in force at the time FSIP issued its
decision, there being a hiatus between the expiration date of March 6,
1981 and a Memorandum of Agreement dated August 26, 1981.
/6/ I am constrained to note that the Union could itself have sought
clarification from FSIP on the issue of the yellow lunch passes instead
of choosing to litigate as an unfair labor practice what essentially is
a matter of interpretation. A more simple and expeditious route would
have been to ask FSIP to clarify its own decision. In my opinion, the
Union's resort to the unfair labor practice procedure of the Statute was
premature and the General Counsel should have held the charge in
obeyance until FSIP had an opportunity to interpret its own decision.
See Chief Judge John H. Fenton's discussion of this issue in Department
of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 13 FLRA No.
95, 13 FLRA 571, a decision adopted by the Authority on January 6, 1984.