United States Air Force, 2750th Air Base Wing Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio and American Federation of Government Employees, Local 1138 (Authority decision, December 18, 1984)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair labor practice case. An aggrieved person may seek judicial review 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 order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Air Force moved a group of employees from Wright-Patterson Air Force Base to a facility about eight miles away, then stopped their union dues deductions and denied a steward official time for a grievance. The Authority found that the employees remained in the same bargaining unit because their duties, supervision, mission, and personnel support remained the same. Ending dues withholding and denying agreed official time therefore violated the statute. The Authority ordered the Air Force to reimburse missed union dues, resume deductions, process the grievance with official time on request, and post a notice.

Decision snapshot

• Authority: Dues withholding under 5 U.S.C. § 7115 and official time under § 7131(d).
• Outcome: Violations found; missed dues and union representation rights were ordered restored.
• Key point: A move to another facility did not remove these employees from their bargaining unit on this record.

Full text (FLRA public release)

[ v16 p872 ]

16:0872(122)CA

The decision of the Authority follows:

16 FLRA No. 122

UNITED STATES AIR FORCE
2750th AIR BASE WING HEADQUARTERS
AIR FORCE LOGISTICS COMMAND
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1138, AFL-CIO
Charging Party

Case No. 5-CA-20335

DECISION AND ORDER

This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations.

Upon consideration of the entire record in this case, including the stipulation of facts, accompanying exhibits and parties' contentions, the Authority finds:

The complaint alleges that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) /1/ by unilaterally terminating the dues deductions of several unit employees and by denying a union steward's request for official time in order to prepare a unit employee's grievance.

At all times material herein, the American Federation of Government Employees, Local 1138, AFL-CIO (Local 1138/the Union) has held exclusive recognition for a unit of nonsupervisory, nonprofessional, General Schedule employees of the Headquarters Air Force Logistics Command (AFLC), 2750th Air Base Wing and tenants physically located at the Wright-Patterson Air Force Base Complex services by the Activity's Central Civilian Personnel Office. /2/ From December 1981 through March 1982, Respondent moved the Electronic Support Unit composed of some 29 employees of the Air Force Acquisitions Logistics Division (AFALD), an organization within the AFLC, from Wright-Patterson to the Defense Electronic Supply Center (DESC) at Gentile Air Force Base, Dayton, Ohio, some eight miles away. The transferred AFALD/PT employees have continued to be serviced by the Activity's Civilian Personnel Office after the move. They retain their prior job descriptions, duties, supervision, and hours of work; there is no change in the relocated group's mission, function, or organization. Finally, these employees are still subject to the same chain of labor-relations authority as they were prior to the move.

In a memorandum dated July 1, 1982, the Respondent notified the Union that it was discontinuing the dues deductions /3/ of several AFALD/PT employees because it considered them to have been severed from the established bargaining unit. In September 1982, the Respondent also denied Fred George, a union steward, official time to meet with Mary Root, an AFALD/PT employee, regarding her grievance /4/ because it claimed she was no longer a bargaining unit member.

The Respondent contends that the phrase describing the established bargaining unit as "physically located at the Wright-Patterson Air Force Base Complex . . . " /5/ is the decisive element in determining whether the AFALD/PT employees are still part of the involved unit. Thus, because the AFALD/PT employees are no longer physically located at Wright-Patterson, the Respondent contends that they are no longer part of the established unit and that it was, therefore, justified in terminating their dues allotments and in denying official time for representational purposes. The General Counsel, however, contends that the unit description language is not a legitimate substitute for the statutorily prescribed criteria for determining unit appropriateness.

The Authority finds no merit to the Respondent's argument. The stipulated facts show that the involved AFALD/PT employees continue to share a clear and identifiable community of interest with their fellow AFLC employees in the established unit. The Authority notes that the duties, job descriptions, and working hours of the AFALD/PT employees are unchanged following the relocation; that they enjoy a common mission and common supervision with fellow AFALD employees remaining at Wright-Patterson; that both employee groups are subject to the same personnel and labor relations policies; and, that both groups are serviced by the Activity's civilian personnel office. The Authority, therefore, finds that the AFALD/PT employees continue to be part of the established bargaining unit and that this unit promotes effective dealings and efficiency of agency operations. See, e.g., Department of Defense, Defense Communications Agency Headquarters, 11 FLRA No. 96 (1983). /6/

Section 7115(a) of the Statute provides for allotments to exclusive bargaining representatives. /7/ Section 7115(b)(1) provides that such an allotment shall terminate when "the agreement between the agency and the exclusive representative involved ceases to be applicable to the employee." When an employee ceases to be part of an established bargaining unit, the termination of dues is warranted. Here, however, the Authority concludes that the AFALD/PT employees remained a part of the established bargaining unit, and therefore the Respondent, acting at its peril, and ignoring the mandates of section 7115 of the Statute, thereby violated section 7116(a)(1) and (8) of the Statute by failing to continue to honor the AFALD/PT employees' voluntary written requests for dues allotments. See Internal Revenue Service, Seattle District, et al., 12 FLRA No. 74 (1983). /8/

Section 7131(d) of the Statute provides that, except as previously provided in section 7131, an employee representing an exclusive representative shall be granted official time in an amount agreed upon by the parties to be reasonable, necessary, and in the public interest.
/9/ Here, it is undisputed that the parties' negotiated agreement (Article 4, Section 4.06) provided for a reasonable amount of official time for union stewards to process unit employees' grievances, and that the Respondent denied such a request by the union steward solely on the ground that the grieving employee was no longer in the bargaining unit. As with the question regarding dues allotments, the question to be first decided is whether the employee/grievant involved was still a member of the bargaining unit. The grievant was in the group of employees found above to have continued to be part of the appropriate unit. Thus, the Respondent, again acting at its peril, and ignoring the mandate of section 7131(d) of the Statute that an employee representing an exclusive representative shall be granted official time as agreed upon by the parties to be reasonable, violated section 7116(a)(1) and (8) of the Statute by denying any official time to the employee designated by the exclusive representative to process a unit employee's grievance, contrary to the terms of the parties' agreement. As the Authority has previously held, "(W)here the contractual provisions are closely tied to, and implement rights and obligations established by, a specific substantive provision of the Statute, the finding of a violation of section 7116(a)(1) and (8) is appropriate." Veterans Administration Lakeside Medical Center, Chicago, Illinois, 12 FLRA No. 57 (1983).

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 Authority hereby orders that the United States Air Force, 2750th Air Base Wing Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio shall:

1. Cease and desist from:

(a) Failing to comply with the provisions of section 7115 of the Federal Service Labor-Management Relations Statute by refusing to honor valid written assignments from Cynthia R. Arnett, Jesse O. Gooding, William K. Kingrey, William E. Schull, Ivan J. Soper, Matthew Vitaliani and Carl B. Wright, or any other unit employee, for the payment of regular and periodic dues to the American Federation of Government Employees, Local 1138, AFL-CIO, or any other exclusive representative of its employees.

(b) Interfering with, restraining, or coercing unit employees by refusing to honor valid written assignments from Cynthia R. Arnett, Jessie O. Gooding, William K. Kingrey, William E. Schull, Ivan J. Soper, Matthew Vitaliani and Carl B. Wright, or any other unit employee, for the payment of regular and periodic dues to American Federation of Government employees, Local 1138, AFL-CIO, or any other exclusive representative of its employees.

(c) Failing and refusing to grant official time to any employee designated as representative of the American Federation of Government Employees, Local 1138, AFL-CIO, or any other exclusive representative of its employees, in accordance with the requirements of section 7131(d) of the Federal Service Labor-Management Relations Statute, as requested, in order to prepare the grievance of Mary Root, or any other bargaining unit employee.

(d) 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 Relations Statute.

2. Take the following affirmative action in order to effectuate the
   purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Reimburse the exclusive representative, American Federation of Government Employees, Local 1138, AFL-CIO, in an amount equal to the regular and periodic dues it would have received from the pay of Cynthia R. Arnett, Jessie O. Gooding, William K. Kingrey, William E. Schull, Ivan J. Soper, Matthew Vitaliani, and Carl B. Wright since July 1, 1982, but did not receive as a result of the unlawful refusal to honor their valid written assignments for such purpose.

(b) Commencing with the first pay period after the date of this Order, deduct regular and periodic dues from the pay of Cynthia R. Arnett, Jessie O. Gooding, William K. Kingrey, William E. Schull, Ivan J. Soper, Matthew Vitaliani and Carl B. Wright, and remit such dues to the American Federation of Government Employees, Local 1138, AFL-CIO.

(c) Process the grievance of Mary Root if requested, and grant official time to the designated representative of the American Federation of Government Employees, Local 1138, AFL-CIO, in order to process such grievance, upon request.

(d) Post at its facilities, where bargaining unit employees 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 an appropriate official of the Respondent 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 V, 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., December 18, 1984

/s/ Henry B. Frazier III
Henry B. Frazier III, Acting
Chairman
/s/ Ronald W. Haughton
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY

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 WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail to comply with the provisions of Section 7115 of the Federal Service Labor-Management Relations Statute by refusing to honor valid written assignments from Cynthia R. Arnett, Jessie O. Gooding, William K. Kingrey, William E. Schull, Ivan J. Soper, Matthew Vitaliani and Carl B. Wright, or any other unit employee, for the payment of regular and periodic dues to the American Federation of Government Employees, Local 1138, AFL-CIO, or any other exclusive representative of our employees.

WE WILL NOT interfere with, restrain, or coerce unit employees by refusing to honor and accept a valid written assignment from Cynthia R. Arnett, Jessie O. Gooding, William K. Kingrey, William E. Schull, Ivan J. Soper, Matthew Vitaliani, and Carl B. Wright, or any other unit employee, for the payment of regular and periodic dues to the American Federation of Government Employees, Local 1138, AFL-CIO, or any other exclusive representative of our employees.

WE WILL NOT fail or refuse to grant official time to any employee designated as representative of the American Federation of Government Employees, Local 1138, AFL-CIO, or any other exclusive representative of our employees, in accordance with the requirements of section 7131(d) of the Federal Service Labor-Management Relations Statute, as requested, in order to prepare the grievance of Mary Root, or any other bargaining unit employee.

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 Federal Service Labor-Management Relations Statute.

WE WILL reimburse the exclusive representative, the American Federation of Government Employees, Local 1138, AFL-CIO, in an amount equal to the regular and periodic dues it would have received from the pay of Cynthia R. Arnett, Jessie O. Gooding, William K. Kingrey, William E. Schull, Ivan J. Soper, Matthew Vitaliani and Carl B. Wright since July 1, 1982, but did not receive as a result of the unlawful refusal to honor their valid written assignments for such purpose.

WE WILL, commencing with the first pay period after the date of this Order, deduct regular and periodic dues from the pay of Cynthia R. Arnett, Jessie O. Gooding, William K. Kingrey, William E. Schull, Ivan J. Soper, Matthew Vitaliani and Carl B. Wright, and remit such dues to the American Federation of Government Employees, Local 1138, AFL-CIO.

WE WILL process the grievance of Mary Root, if requested, and grant official time to the employee designated as representative of the American Federation of Government Employees, Local 1138, AFL-CIO, in order to process such grievance, upon request. (Activity)

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 its provisions, they may communicate directly with the Regional Director, Region V, Federal Labor Relations Authority, whose address is 175 W. Jackson Boulevard, Suite A-1359, Chicago, IL 60604, and whose telephone number is (312) 353-6306.

--------------- FOOTNOTES$ ---------------

/1/ Section 7116(a)(1), (5) and (8) provides:

Section 7116. Unfair labor practices

(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency

(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;

. . . .

(5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter;

. . . .

(8) to otherwise fail or refuse to comply with any provision of this chapter.

/2/ While part of a consolidated unit certified in 1978, it is stipulated that Local 1138 has been the designated bargaining agent for the employees in the unit herein involved.

/3/ The Respondent, by Article 8, Section 8.01 of the parties' Master Labor Agreement (MLA) agreed to periodic union dues payroll deductions.

/4/ Article 4, Section 4.06 of the MLA authorizes a reasonable amount of official time for union representatives to prepare and present bargaining unit employees' grievances.

/5/ The amended certification dated March 30, 1971, describes the involved unit as including:

All nonsupervisory (General Schedule) employees of the Headquarters Air Force Logistics Command and 2750th AF Base Wing, and Tenants physically located at the Wright-Patterson AF Base complex and serviced by the Civilian Personnel Office.

/6/ In so concluding, the Authority finds that the words "physically located" as used in describing the certified bargaining unit were intended to refer to tenants at Wright-Patterson Air Force Base, and not intended to otherwise restrict the boundaries of the AFLC bargaining unit.

/7/ Section 7115. Allotments to representatives

(a) If an agency has received from an employee in an appropriate unit a written assignment which authorizes the agency to deduct from the pay of the employee amounts for the payment of regular and periodic dues of the exclusive representative of the unit, the agency shall honor the assignment and make an appropriate allotment pursuant to the assignment. Any such allotment shall be made at no cost to the exclusive representative or the employee. Except as provided under subsection (b) of this section, any such assignment may not be revoked for a period of 1 year.

/8/ In view of this finding, and as the termination of dues withholding did not result from or accompany a withdrawal of Union recognition by the Respondent, the Authority does not find that the Respondent has violated section 7116(a)(5) of the Statute. See Internal Revenue Service, Seattle District, et al., supra; National Archives and Records Service and National Archives Trust Board, General Services Administration, Washington, D.C., 9 FLRA 413 (1982).

/9/ Section 7131(d) provides in pertinent part:

. . . .

(d) Except as provided in the preceding subsections of this section--

(1) any employee representing an exclusive representative, or

(2) in connection with any other matter covered by this chapter, any employee in an appropriate unit represented by an exclusive representative, shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest.