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31 FLRA No. 38

ACTION

                   Respondent

      and

AMERICAN FEDERATION OF
STATE, COUNTY AND MUNICIPAL
EMPLOYEES, LOCAL 2027, AFL-CIO

                   Charging Party

Case No. 3-CA-60177

DECISION AND ORDER ON REMAND

I. Statement of the Case

This case is before the Authority pursuant to exceptions filed by the General Counsel to the Administrative Law Judge's Decision. The Administrative Law Judge's Decision was issued after the Authority's Decision and Order Remanding an earlier Decision of the Administrative Law Judge in Action, 26 FLRA 299 (1987). The issue before the Authority is whether the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to negotiate over travel and per diem payments for Union representatives on official time. We find, contrary to the Judge, that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to negotiate over travel and per diem for Union representatives on official time.

II. Procedural Background

This case was initially before the Authority pursuant to exceptions filed to the Judge's decision granting Respondent's motion to dismiss. The Judge found that the General Counsel failed to establish a prima facie case that Respondent's refusal to bargain regarding payment of travel and per diem expenses for Union representatives on official time constituted an unfair labor practice. The Judge based [PAGE] his decision on the fact that after the Agency head disapproved certain provisions of the January 9, 1986 collective bargaining agreement, the parties returned to the bargaining table and executed a full and complete collective bargaining agreement. A second collective bargaining agreement was finalized after the Respondent's refusal to bargain.

The Authority found that the General Counsel had established a prima facie case of a refusal to bargain in violation of the Statute as of February 26, 1986. We further found that the subsequent execution of a collective bargaining agreement by the parties did not affect the General Counsel's prima facie case of an earlier refusal to bargain. Consequently, we reversed the Judge's ruling granting Respondent's motion to dismiss. The case was remanded to the Judge for the purpose of reopening the proceedings to determine whether the Respondent violated the Statute as alleged in the complaint. Action, 26 FLRA 299, 301-02.

III. Facts

In the latter half of 1983, the parties initiated negotiations which resulted in a January 9, 1986, collective bargaining agreement. Prior to initiating negotiations, the parties agreed to a set of ground rules which governed bargaining. Included in these ground rules was Ground Rule III which stated, in pertinent part, that "Proposals additional to the initial Action proposals and AEU counter proposals will not be submitted or considered except by mutual consent of the parties . . . ."

The Union initially proposed that the Respondent pay the travel and per diem expenses of representatives during ground rule negotiations and reiterated its position in its original contract proposals. On both occasions, the Respondent claimed that negotiation over travel and per diem for Union representatives was prohibited pursuant to the Supreme Court's decision in Bureau of Alcohol, Tobacco and Firearms (BATF) v. FLRA, 464 U.S. 89 (1983) and the guidance it had received from the Office of Personnel Management. The parties did not reach agreement on the issue of travel and per diem payments for union representatives on official business and received mediation assistance on that issue.

In its unfair labor practice charge, the Union stated that during the course of mediation, the Respondent's Deputy General Counsel stated that an "appropriate decision on implementation of the Supreme Court's decision would allow [ v31 p2 ] the Union to bargain over travel and per diem, at any time, if the finding was that the issue was a subject of either permissive or mandatory bargaining." Attachment A to Union's Unfair Labor Practice Charge. The Union contends that it withdrew its proposal for payment of travel and per diem expenses on August 23, 1985, on the basis of the Deputy General Counsel's statement.

On January 9, 1986, the parties executed a basic collective bargaining agreement which contained no provision concerning travel and per diem payments for Union representatives. On February 7, 1986, the Agency head disapproved certain provisions of this agreement under section 7114(c) of the Statute. On February 21, 1986, the Union requested negotiations over the payment of travel and per diem for Union representatives on official time.

On February 26, 1986, the Respondent refused to negotiate over the request for two reasons: (1) the subject of travel and per diem was nonnegotiable despite the Authority's decision in National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA 6 (1986), affirmed sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, No. 85-1198 (D.C. Cir. Jan. 19, 1988); and (2) the union waived any right to bargain over travel and per diem by executing the bargaining agreement on January 9, 1986.

Subsequent to the above events, the parties executed a new collective bargaining agreement on May 22, 1986, with a retroactive effective date of March 27, 1986. This agreement did not contain a section covering travel and per diem payments.

IV. Judge's Decision

Pursuant to the Authority's remand, the case was reopened for hearing. The General Counsel declined to submit any further evidence or testimony. The Respondent renewed its Motion to Dismiss, which was denied. The General Counsel moved for Summary Judgment which was granted by the Judge after the Judge noted that the Respondent presented no evidence to rebut the General Counsel's prima facie case.

Thereafter, the Respondent moved to reopen the record to submit one document which included the ground rules agreed upon by the parties to govern the bargaining over their collective bargaining agreement. The record was reopened and the document was accepted after testimony by several witnesses, over the objection of the General Counsel. [ v31 p3 ]

Based on Ground Rule III, the Judge found that the Respondent did not violate section 7116(a)(1) and (5) of the Statute. The Judge found that the Respondent was not obligated to bargain about travel and per diem payments for Union representatives, not because such payments were not negotiable, but because of Ground Rule III. The Judge noted that the Union had withdrawn its original proposal for travel and per diem expenses. The Judge determined that the Union's subsequent proposal of February 21, 1986, constituted a new proposal, which in order to be considered had to be agreed upon by both parties. In support of this position, he found that Ground Rule III had the same effect as ground rule 6.2 in U.S. Department of Commerce, Bureau of the Census, 17 FLRA 667 (1985).

V. Positions of the Parties 1

The General Counsel asserts the Judge erred in concluding that: (1) the Respondent did not violate section 7116(a)(1) and (5) as alleged in the complaint; (2) Ground Rule III operates as a waiver of the Union's right to negotiate travel and per diem expenses; and (3) the Respondent's affirmative defense rebutted the General Counsel's prima facie case.

The General Counsel contends that the Judge misapplied the Authority's decision in Bureau of the Census since the proposal concerning travel and per diem expenses was not a new matter for discussion and, therefore, the Respondent was obligated to bargain over the issue. Respondent's failure to do so violated section 7116(a)(1) and (5) of the Statute.

The General Counsel also argues that Ground Rule III does not constitute a clear and unequivocal waiver of the Union's right to bargain. The General Counsel contends that the Judge erred in finding that Ground Rule III bars the Union's request to bargain for two reasons: (1) the evidence does not support such a finding and (2) Respondent did not rely upon the Ground Rule as a basis for its refusal to bargain. [ v31 p4 ]

The General Counsel further argues that the Judge's conclusion that Ground Rule III rebutted General Counsel's prima facie case of an unlawful refusal to bargain is clearly wrong both in fact and law and must be reversed by the Authority.

The General Counsel alleges that the Judge erred by reopening the record after granting the General Counsel's Motion for Summary Judgment and by reversing his decision to grant the General Counsel's motion.

While the General Counsel admits that the Judge has authority to reopen hearings pursuant to Section 2423.19(c) of the Authority's Rules and Regulations, the General Counsel contends that such power is not unlimited. Citing numerous cases, the General Counsel argues that in order to reopen a hearing to receive evidence, there must be a showing that the proffered evidence constitutes either newly discovered or previously unavailable evidence. Under these standards, the General Counsel argues that the Respondent's motion to reopen the hearing should not have been granted because the Respondent was given an adequate opportunity to introduce new evidence or call witnesses during the course of the hearing.

The General Counsel further argues that the Judge did not indicate on the record that the previous decision to grant the General Counsel's motion for Summary Judgment had been, or is vacated. Therefore, the General Counsel argues that the reversal of the summary judgment was contrary to principles of due process because the General Counsel was denied the opportunity to present rebuttal evidence.

IV. Analysis and Conclusion

We find, contrary to the Administrative Law Judge's decision, that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to bargain over travel and per diem payments for Union representatives on official time pursuant to the Union's February 21, 1986, request to bargain over this issue.

The parties here agreed to be bound by the Ground Rules for negotiating their agreement. For the first time in these protracted proceedings, during the hearing before the Administrative Law Judge on Remand, the Respondent raised Ground Rule III as a justification for its refusal to bargain over the Union's proposal over travel and per diem payments. Brief of General Counsel at 9. Ground Rule III states that: [ v31 p5 ]

Proposals additional to the initial ACTION proposals and the AEU counter proposals will not be considered except by mutual consent of the parties (emphasis added). (Respondent Exhibit 1)

The sole basis for the Judge's finding that the Respondent did not violate the Statute was Ground Rule III. The Judge found that "pursuant to Ground Rule III (Respondent) was not obligated to consider a "new" proposal for travel and per diem expenses for Union representatives." ALJ at 8.

We conclude that Ground Rule III does not constitute a waiver of the Union's right to bargain over the payment of travel and per diem expenses for union officials on official business.

A waiver of an exclusive representative's right to bargain will be found only if it can be shown that the exclusive representative clearly and unmistakably waived its right to negotiate. See Department of the Air Force Scott Air Force Base, Illinois, 5 FLRA 9 (1981).

Ground Rule III applies only to proposals "additional" to the Respondent's initial proposals and the Union's initial counterproposals. As noted by the Judge, the union initially proposed the payment of travel and per diem expenses for Union representatives. ALJ at 6. The General Counsel and the Respondent disagree over the meaning of the reference to "additional" in Ground Rule III. The General Counsel argues that because the Union offered an initial proposal concerning the payment of travel and per diem expenses, its later request to bargain over this issue cannot be considered an "additional" proposal. The Respondent maintains that because the Union withdrew its initial proposal, it may not later offer an "additional" proposal on the same subject.

We find that both the General Counsel's and the Respondent's interpretations of Ground Rule III are plausible. As such, we are unable to conclude that Ground Rule III constitutes a clear and unmistakable waiver of the Union's right to bargain over its subsequent proposal for the payment of travel and per diem expenses. See Bureau of the Census, 17 FLRA 667, 671, where the Authority found that the agency violated the Statute by refusing to bargain on certain union proposals which were not "entirely new matter(.)" [ v31 p6 ]

Accordingly, since the Union did not clearly and unmistakably waive its right to bargain over the payment of travel and per diem expenses, the Respondent violated section 7116(a)(1) and (5) of the Statute when it refused to bargain pursuant to the Union's February 21, 1986, request. In light of our conclusion, it is unnecessary to address the General Counsel's other objections concerning the manner in which the Judge conducted the proceedings.

ORDER

Pursuant to section 2423.19 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute, ACTION shall:

1. Cease and desist from:

(a) Failing and refusing to negotiate in good faith with the American Federation of State, County and Municipal Employees, Local 2027, AFL - CIO, the exclusive representative of its employees, with respect to its proposal concerning travel and per diem payments for union representatives on official time.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purpose and policies of the Statute:

(a) Upon request of the American Federation of State, County and Municipal Employees, Local 2027, AFL - CIO, the exclusive representative of its employees, bargain with respect to its proposal regarding travel and per diem payments for union representatives on official time.

(b) Post at all of its facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Union receipt of such forms they shall be signed by the Director of Action, or his or her designee, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notice 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. [ v31 p7 ]

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, Federal Labor Relations Authority, in writing within 30 days from the date of the Order, as to what steps have been taken to comply herewith.

Issued, Washington, D.C., February 23, 1988

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v31 p8 ]

                    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 fail or refuse to negotiate in good faith with the American Federation of State, County, and Municipal Employees, Local 2027, AFL - CIO, the exclusive representative of our employees, with respect to its proposal concerning travel and per diem payments for union representatives on official time.

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 of the American Federation of State, County and Municipal Employees, Local 2027, AFL - CIO, the exclusive representative of our employees, bargain with respect to its proposal regarding travel and per diem payments for union representatives on official time.

                             _______________________________
                                      (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 III, Federal Labor Relations Authority, whose address is: 1111 18th Street, N.W., P.O. Box 33758, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8500. [ v31 p9 ]

ACTION

              Respondent

    and

AMERICAN FEDERATION OF
STATE, COUNTY AND MUNICIPAL
EMPLOYEES, LOCAL 2027,
AFL-CIO

              Charging Party

Case No. 3-CA-60177

Stewart A. Davis, Esquire
Joanna Dailey, Esquire
Mr. Arthur J. Lerner
         For the Respondent

Mr. Rodney T. White
         For the Charging Party

Peter A. Sutton,  Esquire
         For the General Counsel

Before:  WILLIAM B. DEVANEY
         Administrative Law Judge

DECISION ON REMAND

Statement of the Case

A. Decision of Authority and ORDER OF REMAND

The Authority issued its decision, in Action and American Federation of State, County and Municipal Employees, Local 2027, AFL - CIO, 26 FLRA No. 39, 26 FLRA 299, on March 20, 1987. At the original hearing on July 26, 1986, at the conclusion of General Counsel's case, which consisted solely of six exhibits and minor stipulations by the parties, I granted Respondent's Motion to Dismiss, after oral argu- [PAGE] ment; however, the parties were granted leave to file briefs and my written decision issued on August 19, 1986. In my decision, I rejected Respondent's basis for its admitted refusal to bargain on February 26, 1986, and concluded, in accordance with U.S. Customs Service, 21 FLRA No. 2 (1986), that the subject of travel and per diem for Union representatives on official time was negotiable. I further held that under Authority precedent the disapproval of a portion of the January 9, 1986, agreement obligated the parties to return to the bargaining table to complete negotiations. However, because the parties did resume negotiations and did execute a full and complete collective bargaining agreement on May 22, 1986, after Respondent's initial refusal to bargain, I held that General Counsel had failed to establish a prima facie case that Respondent's refusal to bargain constitute an unfair labor practice and, accordingly, recommended that the Complaint be dismissed.

The Authority, disagreed and stated, in material part, as follows:

"We reverse the Judge's ruling granting the Respondent's motion to dismiss and vacate his recommended order. The Judge specifically found that the record established a prima facie case of a refusal to bargain in violations of the Statute as of February 26, 1986. On this basis, we conclude that the General Counsel met his burden and properly rested his case in chief subject to rebuttal by the Respondent. In American Federation of Government Employees, Local 495, 22 FLRA No. 98 (1986), we held that a prima facie case 'is one in which the evidence presented would suffice to show that there is a basis for the theory of the case if such evidence is presumed to be true and the evidence presented by the opposing party is disregarded.' slip op. at 6. We find that the General Counsel met that test.

The evidence introduced by the General Counsel and credited by the Judge showed that the Respondent refused on February 26 1986, to negotiate over travel and per diem allowances for Union representatives in violation of the Statute. The General Counsel's case in chief was not required to encompass events subsequent [ v31 p2 ] to the refusal to bargain in order to establish a prima facie case of a violation of the Statute. Contrary to the conclusion of the Judge, we find that the subsequent execution of a collective bargaining agreement by the parties does not affect the General Counsel's prima facie case of an earlier refusal to bargain. The effect of the terms and execution of the subsequent collective bargaining agreement in this case are matters which may be raised by the Respondent in response to the General Counsel's prima facie case, for example, as an affirmative defense or in mitigation. The General Counsel is not required to include in his prima facie case responses to anticipated defenses which have not yet been raised or proven by the Respondent. Accordingly, the Judge erred in granting the motion to dismiss. We therefore remand this case to the Judge for the purpose of reopening the proceedings in this matter to determine whether Respondent violated the Statute as alleged in the complaint.

"The complaint in Case No. 3-CA-60177 is remanded for action consistent with our decision." (26 FLRA at 301-302).

B. Hearing on Remand

Pursuant to the Authority's Remand, an Order Scheduling Remanded Case For Hearing was issued on April 8, 1987, and set the hearing for May 6, 1987, pursuant to which a hearing was duly held on May 6, 1987, in Washington, D.C., before the undersigned. General Counsel, although offered the opportunity, decline to present any further evidence or testimony (Tr. 106). 2 Respondent renewed its Motion to [ v31 p3 ] Dismiss which was denied (Tr. 115). General Counsel moved for Summary Judgment (Tr. 115-116); I stated that General Counsel's motion was well taken (Tr. 119); Respondent presented no evidence to rebut General Counsel's prima facie case; I granted General Counsel's Motion for Summary Judgment (Tr. 128); and the record was closed (Tr. 129-130).

Thereafter, Respondent moved to reopen the record to submit one document (Tr. 130); the record was reopened (Tr. 131) and Respondent's Exhibit 1 was marked for the purpose of identification (Tr. 131). Respondent then called Mr. Thomas R. Hyland, now retired (Tr. 132), but during the period in question had been Director of Labor Relations for Respondent (Tr. 132). Respondent's Exhibit 1 is an unsigned copy of a document entitled "Ground Rules". General Counsel objected to the receipt of Respondent's Exhibit 1 and it was rejected (Tr. 141). General Counsel, through Mr. Hyland introduced General Counsel's Exhibit 7 entitled "Definition and Status of Bargaining". 3 Respondent then called Mr. Rodney T. White, President of AFSCME Local 2027, who testified that Rules 3, 11 and 12 of Respondent's Exhibit 1 were in fact the ground rules initialed by the parties and, accordingly, I reversed my previous ruling and received Respondent's Exhibit 1 as to the content of rules 3, 11 and 12 only (Tr. 153). 4 [ v31 p4 ]

At the conclusion of the hearing, may 20, 1987, was fixed as the date for submitting post-hearing briefs and General Counsel and Respondent each filed a brief on may 20, 1987. On may 29, 1987, General Counsel filed a Motion to Strike Portions of Respondent's Post - Hearing Brief, granted in part and denied in part as set forth hereinabove in footnote 3.

Conclusions

The record after further hearing on May 6, 1987, is essentially unchanged from the record as it existed at the conclusion of the initial hearing on July 26, 1986, except that Respondent introduced Rules 3, 11 and 12 of the Parties Ground Rules (Res. Exh. 1; Tr. 153) and General Counsel introduced the "Status of Bargaining" clause as initialed by [ v31 p5 ] the parties on April 3, 1985, which, as noted in n. 2, supra, was changed slightly in the Agreement of the parties (G.C. Exh. 6; see, also, G.C. Exh. 3).

In my initial decision, I had stated that,

". . . The Exhibits constituting the record in this case neither show any 'ground rules' or 'procedures' nor do the Exhibits constituting the record assert any limitation to the parties' obligation to negotiate a new agreement." (26 FLRA at 308).

Respondent has now supplemented the record on rehearing to show Ground Rules 3, 11 and 12 and Respondent asserts that,

". . . The above-cited ground rules specifically provide that mutual consent was needed for submission of additional proposals, for consideration of additional proposals, and for the reopening of initial articles., (Respondent's Brief, p. 7).

The Union had initially proposed payment of travel and per diem expenses for Union representatives; but the Union had withdrawn that proposal on August 23, 1986 (G.C. Exh. 3). Thus, Respondent asserts, in part, 5 in substance that in bargaining after disapproval of the parties' negotiated agreement, Respondent was not obligated to bargain about travel and per diem expenses for Union representatives, not because it was not negotiable, but because Ground Rule III provided, in relevant part, that "Proposals additional to the initial ACTION proposals and AEU counter proposals will not be submitted or considered except by mutual consent of the Parties." (Res. Exh. 1, Rule III). The decisions of [ v31 p6 ] the Authority fully support Respondent's assertion. Thus, in Department of the Interior, National Park Service, Colonial National Historical Park, Yorktown, Virginia, 20 FLRA No. 5, TO FLRA 537 (1985), the Authority while nothing that, ". . . the Activity's obligation under the Statute to negotiate in good faith remains, as it has always been, to return to the bargaining table with a sincere resolve to reach agreement with the Union", then specifically stated,

"Cf. U.S. Department of Commerce, Bureau of the Census, 17 FLRA No. 97 (17 FLRA 667) (1985), w ere the Authority found that the Respondent Activity was obligated to renegotiate a tentative agreement which the Union membership had failed to ratify. In that case, by agreement of the parties, the ratification of any agreement reached by the parties was a condition precedent to effectuation of the agreement. When the Union membership failed to ratify the agreement, the parties were obligated to return to the bargaining table to negotiate until an acceptable agreement was reached. This obligation to bargain, in the Bureau of the Census case, was limited by the agreement of the parties that no new issue could be introduced into the bargaining beyond 12 hours after the commencement of negotiations. Similarly, in the instant case, the failure of the Agency head to approve the agreement constituted a failure of a condition precedent, and the parties were effectively returned to the bargaining table to negotiate until agreement could be reached and the Agency head approved such agreement. This obligation to bargain a new agreement is limited only by any 'ground-rules' or procedures agreed upon by the parties under which negotiations were to be conducted." (20 FLRA at 541-542, n. 7).

Here, the Union's proposal on travel and per diem expenses for Union representatives having been withdrawn on August 23, 1986, Ground Rule III, to the same effect as ground rule 6.2 in the Bureau of the Census case, supra, provided that "new" proposals, i.e., "Proposals additional to the initial . . . proposals will not be submitted or considered except by mutual consent of the Parties", and therefore, because Respondent's obligation to bargain a new agreement was limited, ". . . by any 'ground-rules' or 'procedures' agreed [ v31 p 7 ] upon by the parties under which negotiations were to be conducted" (20 FLRA at 542), Respondent, pursuant to Ground Rule III was not obligated to consider a "new" proposal for travel and per diem expenses for Union representatives. 6 Accordingly, General Counsel's prima facie case has been rebutted by Respondent's affirmative defense.

Therefore, having found that Respondent did not violate 16(a)(5) or (1) of the Statute as alleged in the Complaint, 7 it is recommended that the Authority adopt the following:

ORDER

The Complaint in Case No. 3-CA-60177 be, and the same is hereby, dismissed.

WILLIAM B. DEVANEY
Administrative Law Judge

Dated: August 28, 1987
       Washington, D.C.

FOOTNOTES

Footnote 1 The Respondent's Opposition to the General Counsel's Exceptions was untimely filed, and has not been considered herein.

Footnote 2 The record consists of the following: (a) transcript of initial hearing of July 22, 1986, transcript pages 1-47; General Counsel Exhibit's 1-6; (b) transcript of resumed hearing of may 6, 1987, transcript pages 101-167; Respondent Exhibit 1; General Counsel Exhibit 7; and (c) Briefs of the parties to the undersigned.

Footnote 3 Paragraph B, "Status of Bargaining", which is the only portion material to this proceeding, is the language initialed on April 3, 1985; however the parenthetical phrase in the 1985 document is not the same phrase as included in the Agreement of the Parties (G.C. Exh. 6, page 1; G.C. Exh. 3).

Footnote 4 Respondent submitted as an attachment to its Brief copies of the initialed Ground Rules, i.e., the signed version of Respondent's Exhibit 1. General Counsel filed a Motion to Strike the 18 page attachment for the reason that "This document is not part of the official record" and Respondent did not secure . . . permission to submit additional evidence after the close of the hearing (Tr. 152-153, 162). Although General Counsel would not be prejudiced if the attachment were received, assuming that the attachment is, as it purports to be, merely the signed version of Respondent's Exhibit 1, General Counsel is, nevertheless, clearly correct; Respondent could have submitted the signed version at the hearing and, accordingly, General Counsel's motion to strike the attachment is granted. The attachment will be deleted from Respondent's Brief and will be given no consideration for any purpose. General Counsel also moved to strike the reference in Respondent's Brief, pages 1 and 3, to March 10, 1986, for the reason that "There is nothing in the official record to support this as the date that the parties resumed negotiations (Motion to Strike, Paragraph 3) or as the date that agreement was reached (Motion to Strike, Paragraph 4). Again, General Counsel is wholly correct as the only evidence in this regard is General Counsel's Exhibit 5 which states that March 27, 1986, was, "the date that the Parties Negotiated an agreement to resolve the issues disapproved by the Agency Director on February 7, 1986." Accordingly, General Counsel's Motion To Strike, Paragraphs 3 and 4, is granted and Respondent's reference to March 10, 1986, will be disregarded. General Counsel further moved to strike the phrase, "we submit that no such evidence exists" in the last Paragraph of Respondent's Brief, p. 7, before the "Conclusion". This portion of General Counsel's motion is denied for the reason that in context it is no more than legitimate argument.

Footnote 5 As Ground Rule XII (Res. Exh. 1) is substantially like ground rule 6.3 in U.S. Department of Commerce, Bureau of the Census, 17 FLRA No. 97, 17 FLRA 667 (1985), which the Authority e d did not waive the Union's right to reopen contract negotiation (17 FLRA at 670), it has not been given further consideration. Ground Rule XI, which provides, in relevant part, that ". . . By mutual consent, the Parties may agree to consider additional proposals. . . ." adds nothing that is not covered by Ground Rule III and, accordingly, Ground Rule XI has not been separately considered.

Footnote 6 However, Article XXVI, Section B. specifically provides, "Mid-term renegotiation of Agreement articles may take place upon the first and second anniversary dates of the Agreement upon notice of either Party. . . ." (G.C. Exh. 6).

Footnote 7 In view of my disposition, it is unnecessary to address other issues raised by General Counsel.

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