U.S. Department of the Army, Lexington-Blue Grass Army Depot, Lexington, Kentucky and Mary H. Salisbury (Authority decision, January 12, 1990)

Read the official release (flra.gov)

Final FLRA decision. This is the Authority's final unfair labor practice order under 5 U.S.C. §§ 7116 and 7118. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

Lexington-Blue Grass Army Depot removed AFGE Local 894 from office space it had used without first giving notice and a chance to bargain. An administrative law judge found that this changed an established working condition and violated the federal labor statute. The Authority rejected the depot's challenge to the judge's credibility and evidence findings and adopted his decision. It ordered the depot to restore the space on request, bargain over changes, compensate the union for resulting losses, and post a notice.

Decision snapshot

• Authority: Unilateral change and bargaining duty under 5 U.S.C. § 7116(a)(1) and (5).
• Outcome: Unfair labor practice finding affirmed; restoration, bargaining, make-whole, and notice ordered.
• Key point: Ending a union's established use of office space required notice and an opportunity to bargain.

Full text (FLRA public release)

34 FLRA NO. 50

U.S. DEPARTMENT OF THE ARMY

LEXINGTON-BLUE GRASS ARMY DEPOT

LEXINGTON, KENTUCKY

(Respondent)

and

MARY H. SALISBURY

(An Individual)

4-CA-80085

DECISION AND ORDER

January 12, 1990

Before Chairman McKee and Members Talkin and Armendariz.

The Administrative Law Judge issued the attached decision in

the above-entitled proceeding finding that the Respondent had

violated section 7116(a)(1) and (5) of the Federal Service Labor

• Management Relations Statute (the Statute) by removing American

Federation of Government Employees, Local 894 (the Union) from

office space without giving it notice and an opportunity to

bargain about the decision and its impact and implementation. He

concluded that, by this act, the Respondent unilaterally changed

a term and condition of employment in violation of the Statute.

The Respondent filed exceptions to the Judge's Decision and the

General Counsel filed a response to the exceptions.

The Respondent excepts to the Judge's finding that it

unilaterally changed a term and condition of employment by ending

the use of office space by the Union. The Respondent asserts that

the office space was provided for a particular individual, Luther

Sapp, when he was president of the Union. It asserts that space

never was provided for the Union as an organization. The

Respondent asserts that the Judge's conclusion is based on the

Judge's determination "to discredit the testimony of Mr. Sapp(,)"

and that the Judge "states no basis for this determination."

Respondent's Brief at 4.

The demeanor of witnesses is an important factor in

resolving issues of credibility. Only the Judge has had the

benefit of observing the witnesses while they testified. We will

not overrule a Judge's determination regarding credibility of

witnesses unless a clear preponderance of all the relevant

evidence demonstrates that the determination was incorrect. We

have examined the record carefully, and find no basis for

reversing the Judge's credibility findings. See Marine Corps

Logistics Base, Barstow, California, 33 FLRA 626 (1988).

The Respondent also excepts to the Judge's conclusion that

the General Counsel established by a preponderance of the

evidence that the Respondent made a unilateral change in a past

practice. This exception is based on the Respondent's

disagreement with the Judge's evaluation of the evidence. We have

examined the entire record and, for the reasons stated by the

Judge, we agree with the Judge's conclusion.

Pursuant to section 2423.29 of the Authority's Rules and

Regulations and section 7118 of the Statute, we have reviewed the

rulings of the Judge made at the hearing and find that no

prejudicial error was committed. We affirm the rulings. Upon

consideration of the Judge's Decision and the entire record, we

adopt the Judge's findings, conclusions and recommended Order.

ORDER

Pursuant to section 2423.29 of the Authority's Rules and

Regulations and section 7118 of the Federal Service Labor -

Management Relations Statute, the Department of Defense,

Department of the Army, Lexington - Blue Grass Army Depot,

Lexington, Kentucky, shall:

1. Cease and desist from:

(a) Unilaterally removing the American Federation of

Government Employees, Local 894, AFL - CIO, the exclusive

representative of its employees, from its office space in

Building 5-B without providing notice and an opportunity to

bargain over the change and its impact and implementation.

(b) In any like or related manner interfering with,

restraining or coercing its employees in the exercise of the

rights assured them by the Statute.

2. Take the following affirmative action in order to

effectuate the purposes and policies of the Statute:

(a) Upon request, restore American Federation of Government

Employees, Local 894, AFL - CIO to its office space in Building

5-B.

(b) Upon request, meet and negotiate with the American

Federation of Government Employees, Local 894, AFL - CIO, the

exclusive representative of its employees, with regard to any

changes in established practices concerning the use of or removal

from its office space.

(c) Make whole American Federation of Government Employees,

Local 894, AFL - CIO for any losses it incurred as a result of

its removal from its office space in Building 5-B.

(d) Post at its facility at Department of Defense,

Department of the Army, Lexington - Blue Grass Army Depot,

Lexington, Kentucky, 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 Commanding Officer,

Lexington - Blue Grass Army Depot, Lexington, Kentucky, 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.

(e) Pursuant to section 2423.30 of the Authority's Rules and

Regulations, notify the Regional Director, Region IV, in writing,

within 30 days from the date of this Order, as to what steps have

been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally remove American Federation of Government

Employees, Local 894, AFL - CIO, the exclusive representative of

our employees, from its office space in Building 5-B without

providing notice and an opportunity to bargain over the change

and its impact and implementation.

WE WILL NOT in any like or related manner, interfere with,

restrain, or coerce our employees in the exercise of the rights

assured them by the Statute.

WE WILL, upon request, restore American Federation of

Government Employees, Local 894, AFL - CIO to its office space in

Building 5-B.

WE WILL, upon request, meet and negotiate with the American

Federation of Government Employees, Local 894, AFL - CIO, the

exclusive representative of our employees, with regard to any

changes in established practices concerning the use of or removal

from its office space in Building 5-B.

WE WILL make whole American Federation of Government

Employees, Local 894, AFL - CIO for any losses it incurred as a

result of our removing it from its office space in Building

5-B.

______

(Agency)

Dated: ____ 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 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, Region IV, Federal Labor

Relations Authority, whose address is: 1371 Peachtree Street,

N.E., Suite 736, Atlanta, GA 30367, and whose telephone number

is: (404) 347-2324.

_______

DEPARTMENT OF DEFENSE

DEPARTMENT OF THE ARMY

LEXINGTON-BLUE GRASS ARMY

DEPOT, LEXINGTON, KENTUCKY

Respondent

and

MARY H. SALISBURY,

AN INDIVIDUAL

Charging Party

Case No. 4-CA-80085

Philip T. Roberts, Esq.

For the General Counsel

Mr. Leslie E. Renkey

For the Respondent

Before: ELI NASH, JR.

Administrative Law Judge

DECISION

Statement of the Case

This is a proceeding under the Federal Service Labor -

Management Relations Statute, 92 Stat. 1191, 5 U.S.C. section

7101 et seq., (herein called the Statute). It was instituted by

the Regional Director of Region IV based upon an unfair labor

practice charge filed on October 26, 1987, by Mary H. Salisbury,

an individual, against the Department of Defense, Department of

the Army, Lexington - Blue Grass Army Depot, Lexington, Kentucky

(herein called the Respondent). The Complaint alleged that

Respondent violated section 7116(a)(1) and (5) of the Statute by

refusing to bargain over and by implementing the removal of

American Federation of Government Employees, Local 894 (herein

called the Union) from its office space without fulfilling its

statutory obligation to bargain.

Respondent's Answer denied the commission of any unfair

labor practices.

A hearing was held before the undersigned in Lexington,

Kentucky, at which time the parties were represented by counsel

and afforded full opportunity to adduce evidence and to call,

examine, and cross-examine witnesses and to argue orally. Timely

briefs were filed by the Respondent and the General Counsel and

have been duly considered.

Upon consideration of the entire record in this case,

including my observation of the witnesses and their demeanor, I

make the following findings of fact, conclusions of law, and

recommendation.

Findings of Fact

1. Around 1981 or 1982, Luther D. Sapp then President of the

Union approached one Colonel Parker and requested office space

from which he could perform his union duties.

2. Sapp retired from work at the Depot in 1976. Sapp said

the space given him by Colonel Parker was in a building known as

Building 5-B (herein called 5-B). According to Sapp the agreement

with Parker was never reduced to writing, but he was given the

space with the understanding that Respondent could take it back

whenever the space was needed. Colonel Parker did not testify at

this proceeding.

3. Since the space was granted to Sapp, there were at least

two gaps in his presidency: in 1983 and 1984, when John Holly was

president and again in 1985 when Sapp was incapacitated and the

Union had an Acting President Ronald Lewis. Union business was

conducted as usual in 5-B during these periods. Further, 5-B has

been used on a regular basis by both union officers and stewards

to conduct union business. This business has been conducted with

or without Sapp's presence and meetings with management officials

have been held in the building.

4. The record discloses that Respondent management is aware

that 5-B has long been known as the Union office. It's telephone

number listed in the phone book controlled by management; service

orders for the Union consistently refer to it as "the Union

Office;" correspondence from Sapp and others refer to 5-B as the

Union Office; Respondent's security guards call it the Union

office; and for years 5-B has been marked as "AFGE Local 894

office" by signs displayed in front of it.

5. Sometime in September 1987, Sapp was accused of failure

to fulfill his fiduciary duties and other improprieties and

removed from Union office. At a union meeting held on September

22 the membership took control of the meeting from Sapp and voted

itself into trusteeship. The next day Sapp apparently "outraged"

over the previous day's events, was overheard attempting to have

the furniture removed from the Union office.

6. On September 28, 1987, James R. Lowe, a National Vice -

President for American Federation of Government Employees Sixth

District, informed Respondent that official trusteeship

proceedings had been initiated and confirmed that Sapp had been

relieved of his duties as a Union officer. Upon receiving this

letter, Respondent wrote Sapp, suggesting that 5-B was his

personal office space and inquiring if he would be needing it any

longer. Sapp replied that he would not. On October 15, 1987,

Respondent wrote to American Federation of Government Employees

National Representative Patrick O'Connor ordering the Union to

vacate 5-B by October 23.

7. On October 20, 1987, Lowe, O'Connor and Mary H. Salisbury

met with Respondent's Labor Relations Specialist, John Vice to

discuss, inter alia, the office situation. At one point, O'Connor

specifically asked to negotiate over the question of office space

for the Union, and Vice replied that Respondent would not

negotiate. Vice testified that he said, "(m)y response was that

office space is a negotiable matter and when we open the contract

up we'll be happy to negotiate it . . . (b)ut not until then."

Even after this meeting, Respondent held firm to its position

that 5-B was strictly Sapp's personal office space, supplied only

as a convenience to him a non-employee Union official. Therefore,

when the Union requested that the status quo be maintained,

Respondent said that it would do so only so long as O'Connor and

Lowe, as non-employee Union officials, needed the space.

Respondent entertained requests by the Union to delay their

ejection from 5-B, but it steadfastly refused to bargain over the

ejection itself. Ultimately, Respondent ordered the Union to

vacate 5-B by December 5, 1987, and it complied with this order.

Sometime thereafter, a military amateur radio station took over

5-B.

8. Losing this office has had a significant effect on the

Union. It prevents O'Connor from having a place to work and meet

with stewards on post and thus hampers his work in rebuilding

with Local. It also means that there is no private place to meet

with potential grievants and much of what needs to be discussed

in these meetings is of a very private nature. As a

result, employees have been more reluctant to provide the Union

with the information it needs to properly pursue their

grievances. Even those employees who are eager to pursue their

grievances may find it difficult to do so because, without a

Union office, Salisbury (now the Union President) must be

contacted by telephone at her worksite, which is apparently hard

to do.

9. The Depot is located in a rural area and the nearest

off-post office space is around 10 or 12 miles away.

Nevertheless, Respondent refused to authorize official time for

employees to go to any off-post union office not right outside

the gate. Even Respondent admits that the Union had a

longstanding practice of using Building 138 for their meetings,

but in spite of this, on January 21, 1988, the Union's request to

use that space on a regular basis for representational purposes

was denied.

10. In addition to these problems, the Union incurred

certain specific monetary costs as a result of their being

ejected from 5-B, viz., the cost of physically moving the Union's

possessions out of the office, the annual leave used to

accomplish the move and the cost of the telephone which was

installed in 5-B at Union expense.

Union office space is a substantively negotiable condition

of employment. See, American Federation of Government Employees,

Local 1631, 25 FLRA 366, 368-70 (1987). Prior to changing a

substantively negotiable condition of employment, notice and an

opportunity to bargain over the substance of the change as well

as its impact and implementation must be given to the exclusive

representative. U.S. Army Reserve Components Personnel and

Administration Center St. Louis, Missouri, 19 FLRA 290 (1985).

Respondent argues that no office space provision was

negotiated by the parties in their latest agreement signed in

1979. Respondent, in essence, claims that the use of 5-B was

merely a privilege extended to Sapp and not a right. While

conceding that the use of agency facilities can become as

established term or condition of employment which may not

thereafter be unilaterally changed Respondent notes that some

efforts to stop union use of agency facilities does not violate

the Statute. Department of Treasury, Internal Revenue Service,

Cleveland, Ohio, 3 FLRA 656 (1980); U.S. Nuclear Regulatory

Commission, 6 FLRA 18 (1981), relied on by Respondent are

inapposite because they are factually distinguishable from this

matter.

Respondent argues in brief, that there was a clear practice

known and approved by it. The practice, according to Respondent,

was limited to use by Sapp as an off-depot union officer and

there was no consent by Respondent management to any general

union use over an extended time. Respondent to a great extent

used Sapp to establish its position that the office was intended

for his use as an off-depot union president. I do not credit Sapp

based primarily on his demeanor. Furthermore, in view of the

utilization of 5-B, including other union presidents and officers

using the office when Sapp was not president, it is clear that

there was no understanding between Sapp and anyone else that 5-B

was only for Sapp's personal use.

Contrary to Respondent's argument, a preponderance of the

evidence shows not only a broad utilization of this office space

by union officers in general; the telephone listing of the office

as that of "AFGE Local 894"; correspondence referring to the

office as the union office; signs in front of the office

designating it was "AFGE Local 894" office; use of the office by

other union officers during periods when Sapp was not the Union

president or when Sapp was incapacitated. Moreover, management

officials met with union officers other than Sapp in that office

thereby, making it difficult to now deny knowledge of its general

use by the Union.

Based on the credited testimony, it is found that a

preponderance of the evidence establishes that a past practice

existed concerning the utilization of 5-B as a union office by

union officials in general and that it was not merely Sapp's

personal office. Finally, its use which was condoned by

Respondent became a term and a condition of employment which

could not be changed without bargaining.

Accordingly, it is found that Respondent's ejection of the

Union from 5-B, which was the Union office at that time, was a

unilateral change in a term and condition of employment and its

failure to give notice and an opportunity to bargain concerning

the change and its impact and implementation constituted a

violation of section 7116(a)(1) and (5) of the Statute. 1

In light of the foregoing, it is recommended that the

Authority adopt the following:

ORDER

Pursuant to section 2423.29 of the Rules and Regulations of

the Federal Labor Relations Authority and section 7118 of the

Statute, the Authority hereby orders that the Department of

Defense, Department of the Army, Lexington - Blue Grass Army

Depot, Lexington, Kentucky, shall:

1. Cease and desist from:

(a) Unilaterally removing the American Federation of

Government Employees, Local 894 from its office space without

providing notice and an opportunity to bargain over the change

and its impact and implementation.

(b) In any like or related matter interfering with,

restraining or coercing its employees in the exercise of their

rights assured by the Statute.

2. Take the following affirmative action in order to

effectuate the purposes and policies of the Statute:

(a) Upon request, restore American Federation of Government

Employees, Local 894, AFL - CIO to its office space in Building

5-B.

(b) Upon request, meet and negotiate with the American

Federation of Government Employees, Local 894, AFL - CIO, the

exclusive representative of its employees, with regard to any

changes in established practices concerning the use or removal

from its office space.

(c) Make whole, American Federation of Government Employees,

Local 894, AFL - CIO for any losses it may have incurred as a

result of its removal from its office space in Building 5-B.

(d) Post at its Department of Defense, Department of the

Army, Lexington - Blue Grass Army Depot, Lexington, Kentucky

facility, 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, or a designee, 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.

(e) Pursuant to section 2423.30 of the Authority's Rules and

Regulations, notify the Regional Director, Region IV, Federal

Labor Relations Authority, 1371 Peachtree Street, N.E., Suite

736, Atlanta, GA 30367, 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., October 21, 1988

ELI NASH, JR.

Administrative Law Judge

NOTICE TO ALL EMPLOYEES

PURSUANT TO

A DECISION AND ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

AND IN ORDER TO EFFECTUATE THE POLICIES OF

CHAPTER 71 OF TITLE 5 OF THE

UNITED STATES CODE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally remove American Federation of Government

Employees, Local 894, AFL - CIO, the exclusive representative of

our employees from its office space in Building 5-B without

providing notice and an opportunity to bargain over this change

and the impact and implementation thereon.

WE WILL NOT in any like or related manner, interfere with,

restrain or coerce our employees in the exercise of their rights

assured them by the Statute.

WE WILL, upon request, restore American Federation of

Government Employees, Local 894, AFL - CIO to its office space in

Building 5-B.

WE WILL, upon request, meet and negotiate with the American

Federation of Government Employees, Local 894, AFL - CIO, the

exclusive representative of our employees, with regard to removal

from its office space in Building 5-B.

WE WILL make whole American Federation of Government

Employees, Local 894, AFL - CIO for any losses incurred as a

result of our removing it from its offices in Building 5-B.

_________

(Agency)

Dated: ___ 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 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 of the Federal Labor

Relations Authority, Region IV, whose address is: 1371 Peachtree

Street, N.E., Suite 736, Atlanta, GA 30367, and whose telephone

number is: (404) 347-2324.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)

Footnote 1 I agree with the General Counsel that a status

quo ante remedy is prescribed in this matter. Long Beach Naval

Shipyard, 17 FLRA 511, 514, fn. 6 (1985). Also, I agree that a

make whole remedy for any and all costs incurred by the Union as

a result of its ejection from the Union office is appropriate.

See generally, Internal Revenue Service, Western Region, 11 FLRA

655 (1983).