U.S. Department of the Air Force, Air Force Logistics Command and AFGE Council 214 (Authority decision, December 10, 1990)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority finding unfair labor practices under 5 U.S.C. § 7116. 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

Air Force Logistics Command issued revisions to its absence and leave regulation that changed bargaining unit employees' working conditions. Its labor relations officer told AFGE Council 214 that the release was not bargaining notice and that no bargaining duty existed. The Authority upheld the judge's finding that the Air Force violated its duty to give notice and a chance to bargain; the union did not have to make a futile bargaining request after that statement. It ordered the Air Force to rescind the February 1988 regulation, give notice and bargain upon request over intended changes, and post a notice. The Authority required the Base Commander to sign the notice rather than a designee.

Decision snapshot

• Authority: Unfair labor practices under 5 U.S.C. § 7116(a)(1) and (5).
• Outcome: Violation upheld; regulation rescinded, bargaining and notice posting ordered.
• Key point: Telling a union there is no bargaining duty does not provide a meaningful opportunity to bargain over changed leave rules.

Full text (FLRA public release)

[ v38 p887 ]
38:0887(75)CA

The decision of the Authority follows:

38 FLRA No. 75

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR FORCE

HEADQUARTERS, AIR FORCE LOGISTICS
COMMAND

WRIGHT-PATTERSON AIR FORCE BASE, OHIO

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

COUNCIL 214

AFL-CIO

(Charging Party)

5-CA-80255

DECISION AND ORDER

December 10, 1990

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in the above-entitled proceeding, finding that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it unilaterally implemented revisions to Air Force Regulation 40-630, "Absence and Leave," without providing the Union with notice and an opportunity to bargain over the change. The Respondent filed exceptions to the Judge's decision, and the General Counsel filed an opposition to the exceptions.

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 those rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings and conclusions, and recommended order as modified.(*)

Among other things, the Respondent asserts that it did not violate the Statute when the regulation was distributed throughout the Respondent's organization because it did not give instructions to implement the regulation until at least 10 days after presenting the revised regulation to the Union. The Respondent argues that:

"[t]en [d]ays is certainly ample time to constitute opportunity for the Union to request bargaining if it took exception to management's expressed opinion that working conditions would not be changed by implementing the
[regulation]. Alternatively, it was more than enough time for the Union to request management [to] delay implementation."

Respondent's brief in support of exceptions at 15.

The record reveals that the Respondent's labor relations officer, Sheila Hostler, gave the revised regulation to Union President Paul Palacio the day after it had been distributed throughout the Respondent's organization. Palacio asked whether that constituted notice, as required by the collective bargaining agreement when a regulation is issued that triggers a bargaining obligation. Hostler testified that she replied, "'No, it is not. There is no bargaining obligation here. There is no change to the regulation.'" Transcript at 76.

In view of this admission by the Respondent that it informed the Union that it would not bargain about the revised regulation, it is immaterial whether the Respondent had in fact instructed its subordinate offices to disregard any provisions that differed from the parties' agreement. Regardless of the Respondent's intent in this regard, the Union reasonably should have been able to rely on what it had been told by the Respondent's labor relations officer. Accordingly, under the circumstances, it would have been futile for the Union to demand bargaining. Moreover, as it was the Respondent's labor relations officer who informed the Union that there was no bargaining obligation, it is irrelevant that the regulation was issued by a higher level of the organization. As we agree with the Judge that the revised regulation contained unilateral changes in working conditions, we conclude, as did the Judge, that the Respondent implemented those changes without providing the Union with notice and an opportunity to bargain about the substance and/or the impact and implementation of those changes.

II. 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 Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio shall:

1. Cease and desist from:

(a) Unilaterally implementing changes in the working conditions of bargaining unit employees, by unilaterally implementing revision of Air Force Regulation 40-630, "Absence and Leave" without first notifying the American Federation of Government Employees, Council 214, AFL-CIO, the exclusive representative of certain of its employees, and affording it an opportunity to bargain concerning the substance and/or impact and implementation of said changes.

(b) In any like or related manner interfering with, restraining or coercing any 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 Statute:

(a) Rescind the February 1, 1988, issuance of the new Air Force Regulation 40-630.

(b) Notify and, upon request, negotiate with the American Federation of Government Employees, Council 214, AFL-CIO, the exclusive representative of a unit of its employees, of any intended changes concerning Air Force Regulation 40-630 and Air Force Regulation 40-631.

(c) Post at its 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 Base Commander and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region V, Federal Labor Relations Authority, 175 W. Jackson Blvd., Suite 1359-A, Chicago, IL 60604 in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

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 HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT institute unilateral changes in the working conditions of bargaining unit employees by unilaterally implementing revisions of Air Force Regulation 40-630, "Absence and Leave" without first notifying the American Federation of Government Employees, Council 214, AFL-CIO, the exclusive representative of certain of our employees and affording it an opportunity to bargain concerning the substance and/or the impact and implementation of said changes.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL rescind the February 1, 1988 revisions of Air Force Regulation 40-630 "Absence and Leave."

WE WILL notify and, upon request, negotiate with the American Federation of Government Employees, Council 214, AFL-CIO, the exclusive representative of a unit of our employees, in advance of implementing any proposed changes to Air Force Regulation 40-630 and Air Force Regulation 40-631.

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

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

*/ In his recommended Order, the Judge directed that notices posted by the Respondent be signed by the base commander "or a designee." The Authority has held that notices shall be signed by an official designated by the Authority rather than one determined by the Respondent. U.S. Office of Personnel Management, Washington, D.C., 37 FLRA 784 (1990); Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 35 FLRA 1230, 1231-32 (1990). The Judge's recommended Order has been modified to delete the reference to "or a designee."