[ v21 p957 ]
21:0957(112)CA
The decision of the Authority follows:
21 FLRA No. 112
U.S. AIR FORCE, WASHINGTON, D.C.
AND U.S. AIR FORCE, ELECTRONIC SYSTEMS
DIVISION, HANSCOM AIR FORCE BASE
BEDFORD, MASSACHUSETTS
Respondents
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R1-8
Charging Party
Case No. 1-CA-853
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached Decision of the Administrative Law Judge filed by the
General Counsel. The complaint alleged that Respondent U.S. Air Force
(USAF) and Respondent U.S. Air Force, Electronic Systems Division,
Hanscom Air Force Base (the Activity) violated section 7116(a)(1) and
(5) of the Federal Service Labor-Management Relations Statute (the
Statute) by refusing to bargain in good faith with the National
Association of Government Employees, Local R1-8 (NAGE), concerning a
change in the Air Force regulation governing the standard of negligence
to be used in assessing liability against unit employees for the loss,
damage or destruction of Government property, and by unilaterally
changing existing conditions of employment of employees in the
bargaining unit by implementing the new regulation governing the
standard of negligence without first bargaining with NAGE. The issue
before the Authority is whether the Judge properly dismissed the
complaint.
II. Background Facts
Prior to April 1981, Air Force Regulations (AFR 177-111) provided
that civilian employees' liability for the loss, damage or destruction
of Government property required a finding of gross negligence. In
April, representatives of Respondent U.S. Air Force, Electronic Systems
Division, Hanscom Air Force Base, the Activity, informed NAGE and other
labor organizations at Hanscom Air Force Base that the Activity was
going to implement a new AFR 177-111 which would change the existing
standard of care so that employees would be liable for loss or damage to
government property on the basis of their simple negligence. NAGE
requested bargaining over the substance of the change, essentially
proposing that the existing standard of care be retained, and over the
procedures for implementation of the change and appropriate arrangements
for adversely affected employees. The date for implementing the revised
regulation was postponed while the Activity and NAGE exchanged proposals
and negotiated concerning procedures and appropriate arrangements.
However, the Acitivity's representative refused to negotiate concerning
the substance of the change on the basis that it had no local authority
to negotiate concerning the change in the standard of care. The
Activity took this position based upon telephonic advice which it had
received from Respondent USAF. NAGE continued to request negotiations
concerning the substance of the change in the regulatory standard of
care and the Activity continued to reject the request. Revised AFR
177-111, incorporating the change in the standard of care, was
implemented by the Activity on July 6, 1981.
III. The Judge's Decision
The Judge dismissed the complaint on the basis that, Respondents had
no duty to bargain on the subject matter of an agency regulation unless
the Authority determined that no compelling need exists for the
regulation and that such a determination cannot be made in the context
of an unfair labor practice proceeding. Accordingly, the Judge
concluded that neither Respondent had violated section 7116(a)(1) and
(5) of the Statute.
IV. Positions of the Parties
The General Counsel excepted to the Judge's dismissal of the
complaint. Essentially the General Counsel argued that the Judge erred
as a matter of law in concluding that where the alleged unilateral
change involves a regulation covered by section 7117(a)(2) of the
Statute, the Union must first seek a determination by the Authority
concerning whether or not there is a "compelling need" for the
regulation before it could pursue an unfair labor practice over the
Respondents' refusal to engage in local negotiations concerning the
implementation of its national regulation. The General Counsel argued
that the issue of compelling need could be initially addressed in an
unfair labor practice proceeding; that the Respondents had the burden
of establishing compelling need; that they had failed to do so; and
that their conduct therefore constituted a violation of section
7116(a)(1) and (5) of the Statute.
The Respondents' brief in opposition to the exceptions of the General
Counsel essentially argued that the Judge was correct in concluding that
the Authority's negotiability procedures for determining "compelling
need" must be utilized before any unfair labor practice could be found.
V. Analysis
The Authority adopts the Judge's conclusion that the complaint must
be dismissed but not for the reasons stated by the Judge.
Subsequent to the issuance of the Judge's Decision in this case, the
Authority issued its decision in Defense Logistics Agency (Cameron
Station, Virginia) et al., 12 FLRA 412 (1983), affirmed sub nom. Defense
Logistics Agency, et al. v. FLRA, 754 F.2d 1003 (D.C. Cir. 1985), /1/
finding that questions concerning the existence of a compelling need for
agency regulations may appropriately be decided in an unfair labor
practice proceeding, and that management is required to come forward
with affirmative support for its assertion that there is a compelling
need for the regulation in question which justified its refusal to
bargain. See also Aberdeen Proving Ground, Department of the Army, 21
FLRA No. 100 (1986) and Department of Defense Dependents Schools,
Mediterranean Region (Madrid, Spain); and Zaragoza High School
(Zaragoza, Spain), 19 FLRA No. 54 (1985). But see United States Army
Engineer Center v. FLRA 762 F.2d 409 (4th Cir. 1985), reversing the
Authority's decision in U.S. Army Engineer Center and Fort Belvoir, 13
FLRA 707 (1984). Thus the Authority does not adopt the Judge's
rationale for dismissing the complaint.
However, the Authority concludes that the Activity did not violate
section 7116(a)(1) and (5) of the Statute by issuing its revised
regulation without bargaining over the substance of such change because
the subject over which the Activity refused to bargain was NAGE's
proposal to change the standard of care for lost, damaged or destroyed
Government property upon which to base employee liability. Thus, the
new Air Force regulation established a standard of simple negligence for
the imposition of liability while the Union's proposal sought to
establish a standard of "proven, willful, wanton, or reckless conduct
directly attributed to the actions of the employee." Proposals such as
this have been determined to be nonnegotiable. The Authority has found
that union proposals which seek to limit the amount of money an employee
may be required to pay for lost or damaged property, or proposals which
seek to establish the standard to be used in determining whether an
employee will be held pecuniarily liable for the loss, damage, or
destruction of government property, directly interfere with management's
right to determine its internal security practices under section
7106(a)(1) of the Statute. American Federation of Government Employees,
AFL-CIO, Council 214 and Department of the Air Force, Headquarters Air
Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 21 FLRA
No. 34 (1986) and National Federation of Federal Employees, Local 29 and
Department of the Army, Kansas City District, U.S. Army Corps of
Engineers, Kansas City Missouri, 21 FLRA No. 32 (1986). Therefore,
NAGE's proposal was outside the duty to bargain and the Activity's
refusal to negotiate over the proposal did not violate section
7116(a)(1) and (5) of the Statute. The Authority also concludes, based
on the facts set forth above, that the Respondent USAF did not refuse to
bargain nor did it cause the Activity improperly to do so.
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and thus affirms those rulings. The Authority has considered
the Judge's Decision, the positions of the parties and the entire
record, and adopts the Judge's findings and conclusions only to the
extent consistent with this decision. For the reasons set forth above,
the Authority therefore concludes that the complaint must be dismissed.
ORDER
IT IS ORDERED that the complaint in Case No. 1-CA-853, be, and it
hereby is, dismissed.
Issued, Washington, D.C., May 22, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 1-CA-853
U.S. AIR FORCE, WASHINGTON, D.C. and U.S. AIR FORCE, ELECTRONIC
SYSTEMS DIVISION HANSCOM AIR FORCE BASE (BEDFORD,
MASSACHUSETTS)
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-8
Charging Party
James A. Harper, Esq.
For Respondents
Gerard M. Green, Esq.
For General Counsel, FLRA
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
Section 7101 et seq., 92 Stat. 1191 (hereinafter referred to as the
Statute), and the Rules and Regulations of the Federal Labor Relations
Authority (FLRA), 5 C.F.R. XIV, Section 2410 et seq.
A charge was filed on July 29, 1981 and was amended on August 5, 1981
by National Association of Government Employees, Local R1-8 (hereinafter
called the Union and/or NAGE), against United States Air Force and U.S.
Air Force Electronic Systems Division, Hanscom Air Force Base, MA
(hereinafter referred to as Respondents). Pursuant to the above
described charge and amended charge the General Counsel of the FLRA, by
the Director of Region 1, issued a Complaint and Notice of Hearing on
October 9, 1981 alleging that Respondents violated Sections 7116(a)(1)
and (5) of the Statute by unilaterally changing the standard of
negligence to be used in assessing employee liability for damage to
Government property. Respondents filed an Answer denying that the
Statute had been violated.
A hearing in this matter was conducted before the undersigned in
Boston, Massachusetts. The Respondents and Counsel for the FLRA were
represented and afforded full opportunity to be heard, to examine and
cross-examine witnesses, to introduce evidence and to argue orally.
Post hearing briefs were filed and have been fully considered.
Based upon the entire record in this matter, my observation of the
witnesses and their demeanor, and from my evaluation of the evidence, I
make the following:
Findings of Fact
At all times material herein NAGE has been the collective bargaining
representative for a unit composed of all of Respondent's
non-supervisory and non-professional General Schedule employees serviced
by the U.S. Air Force Electronic Systems Division Central Personnel
Office At Hanscom Air Force Base. The unit contains approximately 1,400
employees.
Since at least 1978 until April 22, 1981 Air Force Regulations (AFR
177-111) provided that civilian employees' liability for the loss,
damage or destruction of Government property was based upon a finding of
gross negligence.
On April 22, 1981 representatives of the U.S. Air Force Electronics
Systems Division at Hanscom Air Force Base informed NAGE President
Norman Downes and representatives of other labor organizations
representing employees at the Hanscom Air Force Base, that the Hanscom
Air Force Base would implement on May 1, 1981 a new AFR 177-111 which
inter alia, changed the existing standard of care for lost, damaged, or
destroyed Government property upon which to base employee liability, to
simple negligence /2/ from gross negligence. The Hanscom Air Force Base
representatives provided Downes with a copy of revised AFR 177-111.
Downes requested that representatives of U.S. Air Force Electronic
Systems Division at the Hanscom Air Force Base negotiate with NAGE
concerning the decision to change the standard of care. There was no
response to Downe's request. On April 22 Downes wrote a letter to Denis
Pelley, Chief of the Labor Relations Office of Hanscom Air Force Base,
in which Downes requested to negotiate concerning the change in the
proposed AFR.
The date for implementing revised AFR 177-111, was postponed while
the parties exchanged proposals and negotiated the impact and
implementation of the change. /3/
During June 1981, Respondents' representative, Captain Gruenwald, of
the Judge Avocate General's Office, advised NAGE that Hanscom Air Force
Base had no local authority to negotiate concerning the substance of the
change in AFR 177-111. Pelley and Mr. Kennedy, of the Hanscom Air Force
Base Labor Relations Office, also advised NAGE that Hanscom Air Force
base could not bargain with NAGE concerning the substance of the change
in AFR 177-111; that this matter could not be negotiated at this local
level. Pelley took this position after he was telephonically advised to
do so in June 1981, by Chester Nelson, Chief of Staffing and Labor
Relations, Headquarters, U.S. Air Force Systems Command, Andrews Air
Force Base.
By memorandum dated June 29, 1981 Pelley advised Downes that the
revised AFR 177-111 would be implemented on July 6, 1981.
By letter dated June 30, 1981 Downes submitted to Gruenwald a written
proposal concerning AFR 177-111 and the standard of care. By letter
dated July 2 from Downes to Pelley, Downes reiterated his request to
negotiate concerning the change in the standard of care.
The revised AFR 177-111, incorporating the change in the standard of
care, was implemented on July 6, 1981.
Downes wrote a letter dated July 10 to Pelley reiterating his request
to negotiate with respect to the standard of care.
By letter dated July 14, 1981 from Colonel Thomas O. Duff, Commander
of Hanscom Air Force Base, to Downes, Duff rejected Downes' request to
bargain concerning the standard of care because "Management's obligation
to bargain with you does not extend to the first proposal . . . as it
would change the substance of an Air Force Regulation, specifically
Chapter 1, Property Accountable-General, Paragraph 10005F, Principles of
AFR 177-111 (Test) . . . "
NAGE was never given any reason for Hanscom Air Force Base's refusal
to bargain about the change in the standard of care other than that it
involved a change in an Air Force regulation and that the local activity
lacked authority to negotiate about the substance of the change.
Discussion and Conclusions
Section 7117 of the Statute provides:
"(a)(1) Subject to paragraph (2) of this subsection, the duty
to bargain in good faith shall, to the extent not inconsistent
with any Federal law or any Government-wide rule or regulation,
extend to matters which are the subject of any rule or regulation
only if the rule or regulation is not a Government-wide rule or
regulation.
(2) The duty to bargain in good faith shall, to the extent not
inconsistent with Federal Law or any Government-wide rule or
regulation, extend to matters which are the subject of any agency
rule or regulation referred to in paragraph (3) of this subsection
only if the Authority has determined under subsection (b) of this
section that no compelling need (as determined under regulations
prescribed by the Authority) exists for the rule or regulation.
(3) Paragraph (2) of the subsection applies to any rule or
regulation issued by any agency or issued by any primary national
subdivision of such agency, unless an exclusive representative
represents an appropriate unit including not less than a majority
of the employees in the issuing agency or primary national
subdivision, as the case may be, to whom the rule or regulation is
applicable.
(b)(1) In any case of collective bargaining in which an
exclusive representative alleges that no compelling need exists
for any rule or regulation referred to in subsection (a)(3) of
this section which is then in effect and which governs any matter
at issue in such collective bargaining, the Authority shall
determine under paragraph (2) of this subsection, in accordance
with regulations prescribed by the Authority, whether such a
compelling need exists.
(2) For the purpose of this section, a compelling need shall be
determined not to exist for any rule or regulation only if -
(A) the agency, or primary national subdivision, as the case
may be, which issued the rule or regulation informs the Authority
in writing that a compelling need for the rule or regulation does
not exist; or
(B) the Authority determines that a compelling need for a rule
or regulation does not exist.
(3) A hearing may be held, in the discretion of the Authority,
before a determination is made under this subsection. If a
hearing is held, it shall be expedited to the extent practicable
and shall not include the General Counsel as a party.
(4) The agency, or primary national subdivision, as the case
may be, which issued the rule or regulation shall be a necessary
party at any hearing under this subsection.
(c)(1) Except in any case to which subsection (b) of this
section applies, if an agency involved in collective bargaining
with an exclusive representative alleges that the duty to bargain
in good faith does not extend to any matter, the exclusive
representative may appeal the allegation to the Authority in
accordance with the provisions of this subsection."
Section 7117(a)(2) of the Statute provides that the duty to bargain
extends to matters which are the subject of an agency regulation only if
the FLRA has determined that no compelling need exists for the
regulation.
The subject case deals with a matter, standard of care, which is the
subject of an agency regulation, or more accurately a regulation issued
by an agency or primary subdivision as described in Section 7117(a)(3)
of the Statute. Pursuant to Section 7117(a)(2) of the Statute
Respondents have no duty to bargain concerning standard of care until
the FLRA has first determined that no compelling need exists for AFR
177-111. Thus, it is necessary that the FLRA make a finding that there
is no compelling need for AFR 177-111 before a finding can be made that
Respondents have an obligation to bargain about the standard of care set
forth in revised AFR 177-111. Because NAGE did not first pursue the
procedures provided for presenting the compelling need issue to the
FLRA, I am unable to conclude that Respondent violated Sections
7116(a)(1) and (5) of the Statute by refusing to bargain with NAGE
concerning the change in the standard of care. I adopt the reasoning
and conclusions set forth by the Administrative Law Judges in Boston
District Recruiting Command, 1-CA-206, OALJ-81-023 (1980); Defense
Logistics Agency, et al, 1-CA-213, OALJ-81-131 (1981); Headquarters,
Defense Logistics Agency, 3-CA-664, OALJ-81-133 (1981); and Department
of the Air Force, Air Force Logistics Command, Wright-Patterson Air
Force Base, Ohio, 5-CA-20018, OALJ-83-06 (1982).
Accordingly, although certain other unilateral changes might be
pursued by either the unfair labor practice procedures or the
negotiability procedures, where the alleged unilateral change involves a
regulation covered by Section 7117(a)(2) of the Statute, the "compelling
need" procedures must be utilized before any unfair labor practice can
be found.
In view of the foregoing, I conclude that the record fails to
establish that Respondents violated Sections 7116(a)(1) and (5) of the
Statute. Accordingly, it is recommended that the FLRA issue the
following:
ORDER
The Complaint in Case No. 1-CA-853 is hereby dismissed.
/s/ SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: October 22, 1982
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) The court remanded the matter to the Authority for the sole
purpose of permitting the petitioners to present evidence as to whether
there existed a compelling need for the particular regulation at issue.
On April 22, 1985, the Authority remanded the proceeding to the Chief
Administrative Law Judge for disposition consistent with the direction
of the court. Thereafter, on March 31, 1986, the complaint was
withdrawn.
(2) The revised provision of Chapter 1, Section 100, paragraph
10005(F) of AFR 177-111 provided:
"When property is lost, damaged, or destroyed, pecuniary
charges will be based on a standard of simple negligence, willful
misconduct, or deliberate unauthorized use, and will be assessed
as required by statute."
(3) There is no allegation that there was a refusal to bargain about
the impact and implementation of the change.