24:0334(38)CA - DOD, Air Force, HQ, ATC Lackland AFB, TX and AFGE Local 1367 -- 1986 FLRAdec CA
[ v24 p334 ]
24:0334(38)CA
The decision of the Authority follows:
24 FLRA No. 38
UNITED STATES DEPARTMENT OF DEFENSE
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS, AIR FORCE TRAINING CENTER (ATC)
LACKLAND AIR FORCE BASE, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1367, AFL-CIO
Charging Party
Case No. 6-CA-40408
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 essentially alleged that Respondent
violated section 7116(a)(1) and (5) of the Statute when it failed to
provide the Union adequate notice of, or an opportunity to bargain in
good faith concerning procedures and appropriate arrangements for
adversely affected employees on the implemention of revised Air Force
Regulation 40-452, Performance Management Program. We conclude that the
Respondent committed the unfair labor practice as alleged.
II. Facts
On June 4, 1983, the Respondent hand-delivered to the Union a letter
informing it of a forthcoming revised regulation, AFR 40-452, entitled
"Performance Management Program," to be implemented on July 1. A draft
of the regulation, consisting of nearly 200 pages including a "Summary
of Changes" listing 17 changes in the regulation, was attached to the
letter. The Respondent informed the Union that it would explain the
regulation and its changes and provide the Union with more information
at a later date.
Although the Respondent conducted a briefing on June 13 with the
Union, explaining the most important changes of the regulation
concerning the Union, the briefing was not completed because the
Respondent's representative was unable to answer the Union's questions
in detail. During this meeting, the Respondent asked the Union to
submit its proposals regarding the revised regulation. The Union
replied that the briefing lacked specificity and it could not submit its
proposals until the briefing was completed. The Union asked that it be
given various Air Force regulations referred to in AFR 40-452, and
Respondent replied that they were available in the publication library.
Respondent's representative concluded the meeting by saying that he
would get back to the Union to finish the briefing. On June 14, the
Respondent again asked the Union to submit proposals in writing.
Thereafter, the Union was not able to review the regulations mentioned
in AFR 40-452 because they were not available in the publication
library.
On June 28, when the Union reminded the Respondent's representative
that he had not returned to finish the briefing, the representative
replied that there would be no further discussions on the matter. On
June 29, late on a Friday afternoon, the Union gave the Respondent a
letter that requested: (1) negotiation on the impact and implementation
of AFR 40-452; and, (2) the postponement of its implementation until
after the parties completed negotiations. Upon receipt of the request
to negotiate, the Respondent told the Union that the submission was
late. The Respondent implemented the regulation on July 1.
Subsequently, on July 19, the Union submitted a written list of
proposals to the Commander of the Base. No bargaining took place with
respect to the regulation.
III. Judge's Decision
The Judge concluded that the Respondent did not violate section
7116(a)(1) and (5) of the Statute as alleged. He found that the Union's
request to bargain at the "eleventh hour" was untimely, noting
particularly that the request was made on June 29, late on a Friday
afternoon just before the proposed implementation of the new regulation
on Sunday, July 1. Also, the Judge found that the Respondent: (1) gave
the Union adequate notice of the change and the specific details of the
regulation to enable the Union to make proposals to management; and (2)
requested, on several occasions, the Union to submit proposals.
Further, he found that although the Respondent conducted a briefing
session with the Union concerning the regulation and indicated its
intention to resume briefings, it was not obliged to do so.
Finally, the Judge found that the Union's proposals given to the Base
Commander on July 19 would not support a refusal to bargain allegation.
He found that the request to bargain after changes were implemented was
also untimely.
IV. Positions of the Parties
The General Counsel excepts to the Judge summarily rejecting the need
for adequate information needed by the Union for bargaining. The
General Counsel contends that the Respondent misled the Union into
reliance on a briefing and the availability of documentation, and
subsequently abrogated all commitments and refused to bargain with the
Union on the matter. The Respondent filed a brief in opposition to the
General Counsel's exceptions.
V. Analysis
We find, contrary to the Judge, that the Respondent violated section
7116(a)(1) and (5) of the Statute by refusing to bargain in good faith
with the Union concerning procedures and appropriate arrangements for
adversely affected employees on the implementation of AFR 40-452. After
the Union was notified of the impending changes in the regulation, it
requested the Respondent to explain the regulation and its changes as
well as provide more information to the Union. The Respondent committed
itself to provide the information and to give the Union a briefing.
Although a briefing was held on June 13, it was not completed because
the Respondent's representative was unable to answer the Union's
questions. During the briefing the Respondent's representative asked
the Union to submit bargaining proposals. The Union responded that the
briefing lacked the specificity it needed to submit proposals and that
it could not submit proposals unitl the briefing was concluded and the
changes from the previous regulation had been identified. The Judge
credits the testimony of the Union that the Respondent's representative
stated that he would get back to the Union to finish the briefing. It
was not until June 28, two working days before implementation of the
regulation, that the Union was informed that there would be no further
discussion of the matter. The Union requested negoitations and
postponement of the implementation of the regulation on the following
day, prior to the date the Respondent established to implement the
regulation.
We find that the Union was misled by the Respondent's representative
when he stated that he would finish the briefing and provide the Union
with additional information necessary for the Union to submit
appropriate proposals. It was this failure by the Respondent to provide
the necessary information that delayed the Union in submitting
bargaining proposals. In these circumstances, the Union's request to
bargain was timely. Therefore, we find that the Respondent violated the
Statute by failing to bargain in good faith with the Union over
procedures and appropriate arrangements for adversly affected employees
before it implemented the revised regulation. See Department of the Air
Force, Scott Air Force Base, Illinois, 19 FLRA No. 13 (1985). In view
of our conclusion, it is unnecessary to address the Judge's conclusion
regarding the Union's post-implementation proposals.
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 and the entire record in this case, and adopts the
Judge's findings and conclusions only as modified. We find, contrary to
the Judge, that the Respondent failed and refused to bargain in good
faith with the Union concerning procedures and appropriate arrangements
for adversely affected employees on the implementation of AFR 40-452, in
violation of section 7116(a)(1) and (5) of the Statute.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority orders that
the United States Department of Defense, Department of the Air Force
Headquarters, Air Force Training Center, ATC, Lackland Air Force Base,
Texas shall:
(1) Cease and desist from:
(a) Failing and refusing to bargain in good faith with the
American Federation of Government Employees, AFL-CIO, Local 1367,
the exclusive representative of its employees, and affording it
the opportunity to bargain concerning procedures and appropriate
arrangements of adversly affected employees on the implementation
of revised Air Force Regulation 40-452, Performance Management
Program.
(b) In any like or related manner 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, bargain in good faith with the American
Federation of Government Employees, AFL-CIO, Local 1367, the
exclusive representative of its employees, concerning procedures
and appropriate arrangements of adversly affected employees on the
implementation of revised Air Force Regulation 40-452, Performance
Management Program.
(b) Post at its facilities at Lackland Air Force Base 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, Lackland Air Force Base, and shall be
posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
to ensure that said Notices are not altered, defaced or covered by
any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply.
Issued, Washington, D.C. December 5, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, 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 and refuse to bargain in good faith with the
American Federation of Government Employees, AFL-CIO, Local 1367, the
exclusive representative of our employees, and afford it the opportunity
to bargain concerning procedures and appropriate arrangements of
adversely affected employees on the implementation of revised Air Force
Regulation 40-452, Performance Management Program.
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, upon request, bargain in good faith with the American
Federation of Government Employees, AFL-CIO, Local 1367, the exclusive
representative or our employees, concerning procedures and appropriate
arrangements of adversely affected employees on the implementation of
revised Air Force Regulation 40-452, Performance Management Program.
(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 VI, Federal Labor Relations Authority, whose address
is: 525 Griffin Street, Suite 926, Dallas, Texas 75202, and whose
telephone number is: (214) 767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 6-CA-40408
UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT
OF THE AIR FORCE HEADQUARTERS, AIR FORCE TRAINING
CENTER, ATC, LACKLAND AIR FORCE BASE, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1367
Charging Parties
Charles L. Brower, Lt. Col., USAF
For the Respondent
Susan E. Jelen, Esquire,
For the General Counsel
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Compliant and Notice of Hearing issued on August 23,
1985 by the Regional Director for the Federal Labor Relations Authority,
Dallas, Texas, a hearing was held before the undersigned on October 29,
1985 at San Antonio, Texas.
This case arose under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101, et seq. (herein called the Statute). It is
based on a Second Amended Charge filed on August 22, 1985 by American
Federation of Government Employees, AFL-CIO, Local 1367 (herein called
the Union) against United States Department of Defense, Department of
the Air Force Headquarters, Air Force Training Center, ATC, Lackland Air
Force Base, Texas (herein called the Respondent).
The Complaint alleged, in substance, that (a) on or about June 28,
1984, and continuing thereafter, Respondent refused to bargain in good
faith with the Union over procedures to be observed and appropriate
arrangements for adversely affected employees in implementing Air Force
Regulation 40-452, Performance Management Program, (b) on or about July
1, 1984 and continuing thereafter, Repsondent refused to bargain in good
faith with the Union by unilaterally implementing the aforesaid Air
Force Regulation 40-452 without providing the Union adequate notice of,
or an opportunity, to negotiate over procedures to be observed in
implementing the regulation and appropriate arrangements for adversely
affected employees -- all in violation of Section 7116(a)(1) and (5) of
the Statute.
Repsondent's Answer, dated September 4, 1985, denied the aforesaid
allegations of the Complaint, as well as the commission of any unfair
labor practices.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed which have been
duly considered. /1/
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein the Union has been, and still is,
the exclusive bargaining representative of all permanent, full time, Air
Force civilian employees paid from appropriated funds assigned to
Lackland Air Force Base, Texas with specified exclusions from said unit.
2. At all times material herein the Union and Respondent have been
parties to a collective bargaining agreement covering the aforesaid unit
which is composed of approximately 2300 employees.
3(a). Between 1972 and June, 1985, Frank G. Suarez was president of
the Union. At all times material herein Julius Garcia was first
vice-president of the Union.
(b) At all times material herein Chalres Shinn was Chief of the
Respondent's Civilian Personnel Office, Ramon Lopez was Respondent's
Chief of Labor Relations, and Anthony Fuentes was Respondent's Chief of
Employee Relations.
4. Record facts disclose that between May, 1983 and June, 1984
Respondent changed its employment conditions on various occasions; that
it was customary for management to forward the changes with a covering
memo signed by Lopez; and that bargaining thereon would normally occur
three weeks from the time the Union made a request to bargain.
5. On June 4, 1984 /2/ Lopez hand delivered to Suarez a letter which
informed the Union of a forthcoming new regulation (AFR 40-452) to be
implemented on July 1, and an attached draft of the said regulation.
Lopez explained that someone would come and explain the regulation and
its changes as well as provide more information to the Union.
Thereafter, on June 8, Suarez gave the regulation to Garcia for the
latter to review and decide if it required negotiations with management.
6. The draft of AFR 40-452, entitled "Performance Management
Program", established a program that integrates certain performance,
pay, and recognition processes which is applicable to employees in the
Lackland unit. As such, it implements requirements of 5 CFR, Part 430
(performance appraisal), Part 540 (merit pay), Part 531 and 532 (within
grade increase - WGI), Part 305 (probation) and Part 451 (performance
awards). It also implements FPM, Supplement 335-1, pertaining to the
use of performance appraisals in promotion.
7. The said regulation, which comprises nearly 200 pages, contains
17 changes. They are as follows: /3/
"SUMMARY OF CHANGES"
"This publication implements the performance management concept
(para 1-2) and the pay-for-performance concept (para 1-3);
explains differences in employee coverage (para 1-6b and atch 1);
implements a single appraisal form (para 2-1); establishes an
initial 90-day appraisal period (para 2-2); sets up two annual
appraisal cycles (para 2-3); adds new requirements regarding
supervisory safety and health responsibilities (para 2-9c); adds
new requirements on critical performance elements (para 2-10);
adds additional requirements regarding the quality control review
(para 2-13); explains how ratings on work behavior must relate to
ratings on performance (para 2-19); explains the requirements to
appraise work behavior and how the rating is used (paras 2-17
through 2-30); clarifies the separate probation required for new
supervisors and managers (para 4-2); implements new guidance on
dealing with performance problems (chap 5); establishes a new
cash award for GM employees (para 7-4); authorizes a quality step
increase only for superior ratings (para 7-5a); establishes a 1
percent of salary minimum for the SSPA and MPCA (fig 7-1, table
4); and, changes recordkeeping requirements (chap 12)."
8. At the request of Lopez, management official Fuentes came to the
Union office on June 13 to conduct a briefing of AFR 40-452. The
official stated that it was necessary to implement the new regulation on
July 1. Although Garcia inquired why it had to be done so quickly,
Fuentes gave no explanation. An overview of the program and its
philosophy was covered, and Fuentes called the Union's attention to the
most important changes concerning the Union. The most important change,
as mentioned by the management representative, dealt with a new system
which combined the old Job Performance Appraisal System (JPAS) and the
Civilian Potentail Appraisal System (CPAS). These were no longer
separate and district appraisal processes, and they had to be related to
one another. There would be one appraisal during the rating year
instead of two separate appraisals. /4/
9. At the briefing on June 13 Fuentes asked the Union if there were
any questions re the new regulation. Garcia asked what other changes
were introduced by the new program. Fuentes stated he couldn't answer
in detail and that he was going to a training session that day but would
get back to the Union representatives. Garcia requested that he be
given the various Air Force regulations referred to in AFR 40-452, and
Fuentes replied they were in the publication library at Lackland.
Fuentes asked that the Union submit its proposals re the proposed new
regulation. Whereupon Garcia stated the briefing lacked specificity and
the Union couldn't submit proposals until the briefing was completed;
that the Union could not submit the proposals until Fuentes finished his
briefing and pointed out all the changes from its past regulation.
Whereupon Fuentes said he would get back to the Union. /5/
10. The record reflects that on June 14 Ms. Tommie Holmes, an
employee relations specialist, telephoned Garcia. She stated that
Fuentes asked her to contact Garcia and tell the latter to send Fuentes
the Union's proposals in writing. Garcia replied that he would try to
get them ready.
11. Garcia attempted to review the regulations mentioned in AFR
40-452 by going to the library but they were not available. The said
regulations were available at the Civilian Personnel Office, but Garcia
was advised he could review them only during duty hours and could not
have copies thereof.
12. Garcia testified, and I find, that on June 28 he went to see
Fuentes at the latter's office and asked for copies of the Federal
Personnel Manual. He mentioned that they were lengthy and did not have
time to review them. The request was denied. When Garcia reminded
Fuentes that the latter had not returned to finish the briefing, the
management official stated that, upon adivce of Lopez, there would be no
further discussion with the Union on this matter; that Ms. Holmes at
the Civilian Personnel Office had contacted the Union and requested
proposals and there was adequate time to submit same. In reply thereto,
Garcia said that Fuentes knew the Union was dealing with him and Lopez.
The Union official then said he would submit proposals the next day
based on the information had by the Union. Fuentes then told Garcia to
"do what you want to, but the agency will not entertain anything, or
discuss anything." /6/
13. After the aforesaid meeting Garcia advised Suarez what had been
said thereat. Upon advice from Suarez, the Union president conferred
with Al Kia, president of AFGE, Local 3782 which was negotiating with
Air Force agency SARPMA /7/ over AFR 40-452. Garcia testified he copied
some of the proposals sumbitted by Kia on two yellow pages.
14. On June 29 Garcia gave Fuentes a letter, dated June 28, written
by Suarez and addressed to the Commander of Lackland Air Force Base -
attention: Charles Shinn. This letter from the Union requested
negotiation re the impact and implementation of AFR 40-452, as well as
the postponement of its implementation until after the parties finished
meeting and completed an agreement. It was suggested therein that the
parties meet on July 2. Garcia testified that he also delivered the
proposals of the Union, which were handwritten on the two yellow pages,
to Fuentes on June 29. /8/ Upon receiving the request to negotiate as
set forth in Suarez's letter, Fuentes informed Garcia it was late for
submission (being late Friday afternoon) since the regulation would be
implemented on Sunday, July 1.
15. Respondent did not reply to Suarez's letter of June 28 wherein
the Union requested negotiations re the impact and implementation of AFR
40-452. The regulation was implemented on July 1.
16. On July 19 Garcia gave a written list of 12 proposals by the
Union, in respect to AFR 40-452, to the secretary of General Smith, the
Commander at the Base. /9/ These proposals, which were addressed to the
Commander, were a typewritten copy (with a few changes) of the proposals
made by Kia on behalf of Local 3782, and which Garcia testified he gave
to Fuentes on June 29 on handwritten pages.
17. No bargaining has taken place with respect to the said
regulation.
18. In addition to the change resulting from AFR 40-452, whereby
employees would no longer receive two separate appraisals during the
rating year, but would receive a combined JPAS & CPAS appraisal, two
other signigicant changes affecting employees were made by the new
regulation: (a) an initial appraisal period was established, so that
employees must be appraised at the end of, but no earlier than, 90 days;
(b) the critical elements, which formed the basis for the appraisal and
rating of employees, were changed in the new regulation.
Conclusions
It is contended by General Counsel that Respondent violated Section
7116(a)(1) and (5) of the Statute. It predictes this conclusion on the
further contentions: (a) that AFR 40-452 was implemented unilaterally
without affording the Union adequate notice and a reasonable opportunity
to request bargaining on the impact and implementation of the
regulation; (b) that management refused to bargain thereon.
Case law in the public sector has established that while an agency
may exercise certain management rights, purusant to Section 7106 of the
Statute, an obligation is imposed upon the agency when it changes
conditions of employment in exercising such right. In such an instance
a union must be provided with adeuqate notice of the agency's decision
and afforded an opportunity to bargain on the impact and implementation
of any such change. Department of the Treasury, U.S. Customs Service,
Region 1 (Boston, Mass.), 16 FLRA No. 97; U.S. Government Printing
Office, 13 FLRA No. 39.
There are, however, correlative obligations imposed upon a union
which has been notified of any intended changes by an agency. A union
is obliged, in such event, to make a timely request to bargain or seek
more time to consider a change. Where the union's request is submitted
at the eleventh hour, albeit before the change, it has been held to be
untimely. See Customs Service, Region 1 (Boston, Mass.), supra; Social
Security Administration, Bureau of Hearings and Appeals, A/SLMR No. 960,
8 A/SLMR 33. Further, a request to bargain after the change is
implemented has been held untimely and no refusal to bargain will be
found. General Services Administration, 15 FLRA No. 6.
Turning to the case at bar, the General Counsel avers that the notice
of the proposed implementation of AFR 40-452 was not sufficiently
specific or definitive re the contemplated changes. In support of such
averment, it is argued by General Counsel that briefing were required to
elaborate or explain the new regulation and its changes.
It is true that notice of a decision to change working conditions
must be specific, and that a passing reference to a contemplated change
will not be deemed adequate notice. Department of the Army, Harry
Diamond Laboratories, Adelphi, Maryland, 9 FLRA No. 66; U.S. Department
of the Air Force, Air Force Systems Command et al., 5 FLRA No. 88;
Department of the Treasury, Internal Revenue Service, Indianapolis,
Indiana, A/SLMR No. 909, 7 A/SLMR 844. However, in the case at bar I am
persuaded that the new regulation itself (AFR 40-452), which was given
to the Union on June 4, was specific as to the contemplated charges.
The summary of changes - as set forth in G.C. Exhibit No. 3 and
Respondent's Exhibit No. 4 (following Chapter 12) - specified the 17
proposed changes in the Performance Management Program. In each
instance the changed condition of employment was specifically mentioned,
i.e. establishing a 90 day appraisal period, implements a single
appraisal form, etc. While management did conduct a briefing session in
regard thereto, and indicated an intention to resume briefings, I am not
convinced that such was obligatory on its part. Further, the fact that
discussion ensued re the various changes does not militate against
concluding that the notice of the changes, and their specifity, were
sufficient. I am satisfied that the purported changes as given to the
Union were sufficiently detailed to appraise the bargaining
representative of their substance; that such notification thereof was
adequate to allow the Union to make proposals to management concerning
same.
With respect to the time frame allotted to the Union to request
bargaining and submit proposals based on the proposed new regulation, I
conclude Respondent has fulfilled its obligation in that regard. Since
AFR 40-452 was given to the Union on June 4 with an implementation date
of July 1, the Union had 4 weeks advance notice of the contemplated
changes. Past decisions by the Authority reveal that substantially less
notice by an agency has been deemed adequate. Thus, in Customs Service,
Region 1 (Boston, Mass.), supra, 10 days notice of a changed procedure,
requiring inspectors to make a phone call to management on completing an
assignment, was considered sufficient notification. Also, a 4 day
notice of a reduction-in-force of employees was held adequate. United
States Department of Defense, Department of the Army, Headquarters, Fort
Sam Houston, Texas, 8 FLRA No. 112.
It is also concluded by the undersigned that the Union was afforded a
reasonable opportunity to negotiate the changes which were to be
implemented on July 1. When Garcia received the proposed regulation on
June 4 there was also attached thereto a letter from Lopez asking the
Union representative to contact him re same. On June 13, during the
briefing conducted by Fuentes, the latter asked Garcia to send
management the Union's proposals re AFR 40-452. Again, on June 14
management representative Tommie Holmes called Garcia and requested he
submit the Union's prposals. The request for negotiation, which was set
forth in a letter from Suarez to the Commander was given to Fuentes on
June 29. This was the first time the Union presented its request and it
was made on a Friday afternnon just before the proposed implementation
of the new regulation on Sunday, July 1. In accord with the cases
heretofore cited I conclude that the Union was afforded a reasonable
time and opportunity to request bargaining and submit its proposals re
the new regulations. While it did ultimately submit such request, this
was done at the eleventh hour. Thus, the Respondent was justified in so
advising Garcia on June 29 in view of its planned implementation on July
1. The refusal to negotiate at this late date on the impact and
implementation of AFR 40-452 was not, in line with past decisional law,
a refusal to bargain in violation of 7116(a)(5) of the Statute. See
Internal Revenue Service (District, Region, National Office Unit), 14
FLRA No. 92.
Moreover, the proposals given by Garcia to General Smith's office on
July 19 will not support a refusal to bargain allegations even though
unanswered by Respondent. /10/ A request to bargain made after changes
are implemented must be considered untimely, and no refusal to bargain
by Respondent will be found thereafter. Department of the Army, U.S.
Military Academy, West Point, New York, A/SLMR No. 1138, 8 A/SLMR 1163.
Accordingly, the undersigned concludes that Respondent did not refuse
to bargain with the Union re the implementation of AFR 40-452 in
violation of Section 7116(a)(1) and (5) of the Statute.
It is therefore recommended that the Authority issue the following
Order:
ORDER
It is hereby Ordered that the Complaint in Case No. 6-CA-40408 be,
and the same hereby is, dismissed.
WILLIAM NAIMARK
Adminstrative Law Judge
Dated: March 13, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) Subsequent to the hearing the Respondent filed with the
undersigned a Motion to Strike Portions of General Counsel's
Post-Hearing Brief. In its brief the General Counsel cited Department
of the Navy, Naval Ordinance Station, 4 FLRA 760. Respondent, asserting
that General Counsel misinterpreted the cited decision and its ratio
decidendi, contends that the General Counsel omitted certain language
when it quoted Judge Mason, the author thereof. The Motion is denied.
Quotations from, or portions of, a cited case as set forth by a party in
a brief are part of Counsel's argument. They are not factual in nature,
nor may they be deemed an attempt to adduce post-hearing evidence. The
undersigned can determine, upon reviewing the cited case, its
applicability herein.
(2) Unless otherwise inidcated, all dates hereinafter mentioned occur
in 1984.
(3) The changes in performance management, as contained in AFR
40-452, appear in G.C. Exhibit No. 3 on the page following Chapter 12-3
and in Respondent's Exhibit No. 4 on pages 57-58.
(4) Garcia testified that Fuentes stated management changed its
position re the grievability of performance ratings; that whereas job
performance was deemed norgrievable in the past, under this regulation
it was grievable. Fuentes denied referring to any such change, and he
testified job appraisals were always considered grievable; that the new
regulations made no change. While Article XXIII of the collective
bargaining agreement, which is entitled "Negotiated Grievance Procedure,
purportedly covers this matter, it is clearly a matter of contract
interpretation and no change in this respect appears in AFR 40-452.
(5) Fuentes denied giving any indication to Garcia that he would come
back and finish briefing. His testimony, however, reflects that he gave
the impression he would come back if the Union called and needed
explanation. Suarez, who was present at the briefing, also testified
that Fuentes stated on June 13 he had to leave for training for the new
regulation. Further, that Fuentes was making arrangements to come back
and talk over AFR 40-452 again with the Union. I credit the versions of
what occurred at the briefings as testified to by Garcia and Suarez.
(6) This conversation, as testified to by Garcia, was undenied by
Fuentes.
(7) San Antonio Real Property Maintenance Association.
(8) Fuentes testified that Garcia did not give him anything but the
letter (G.C. Exhibit No. 4). In view of the ultimate disposition of the
central issue herein, the undersigned concludes it is unnecessary to
reslove credibility as to the submission of the handwritten proposals.
(9) The letter containing these proposals, and addressed to the
Commander, was dated June 29. Garcia's testimony reflects that the
Union so dated the letter because that was the date it submitted its
handwritten proposals to Fuentes.
(10) Assuming arguendo, the Union submitted its proposals to Fuentes
on June 29, which fact is in dispute, the undersigned would deem the
submission untimely. Thus, a refusal to negotiate thereon, in view of
the implementation date of July 1, would not be violate of 7116(a)(5).