[ v44 p482 ]
44:0482(41)CA
The decision of the Authority follows:
44 FLRA No. 41
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
WASHINGTON, D.C. AND
MICHIGAN AIRWAY FACILITIES SECTOR
BELLEVILLE, MICHIGAN
(Respondent)
and
PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS
MEBA, AFL-CIO
(Charging Party/Union)
5-CA-80334
5-CA-80458
DECISION AND ORDER
March 20, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
These unfair labor practice cases are before the Authority on exceptions filed by the General Counsel to the attached Decisions of the Administrative Law Judge in the above-entitled proceedings. The Respondent filed an opposition to the General Counsel's exceptions in Case No. 5-CA-80334. The Respondent did not file an opposition to the General Counsel's exceptions in Case No. 5-CA-80458.
Case No. 5-CA-80334 and Case No. 5-CA-80458 involve the same parties and similar issues. The same Judge conducted the hearings in both cases, and the record in Case No. 5-CA-80334 was incorporated by reference into the record in Case No. 5-CA-80458. Because the cases are so closely related, we have consolidated them for decision.
The complaint in Case No. 5-CA-80334 alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to provide the Union with notice and refusing to bargain concerning the impact and implementation of the Respondent's decision to detail four radar technicians from the Saginaw, Michigan facility (Saginaw) to the Toledo, Ohio facility (Toledo). The complaint in Case No. 5-CA-80458 alleged that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to bargain concerning the impact and implementation of the Respondent's decision to require one Saginaw radar technician to perform additional but similar job functions at the Flint, Michigan facility (Flint). The Judge found that the Respondent did not violate the Statute and recommended that the complaints be dismissed.
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 hearings and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's Decisions and the entire record in both cases, we agree with the Judge that the Respondent did not violate section 7116(a)(1) and (5) of the Statute in either case. We adopt the Judge's reasoning only to the extent consistent with this decision.
II. Facts
The facts are set forth in the Judge's Decisions and are summarized below. The Union is the exclusive representative of a nationwide bargaining unit of electronic technicians and related employees in the Federal Aviation Administration's Airways Facilities Division. The Division consists of several Sectors. The Michigan Sector, which includes most of Michigan as well as Toledo, Ohio, contains over a dozen field offices.
Electronic technicians have various specialties, such as radar, navigation, or communication. The electronic technicians involved in these cases are radar technicians. As relevant here, there are three other types of unit employees: (1) relief technicians, who may be certified in one or more specialties; (2) field maintenance party personnel; and (3) facilities and equipment personnel. There are no relief technicians in the Michigan Sector who are certified in the radar specialty. There are no relief technicians certified in any specialty who are assigned to Saginaw.
The parties have a nationwide labor agreement. Article 25 of that agreement is entitled "Temporary Assignment and Associated Per Diem" and Article 69 is entitled "Local/Regional Relationships." The pertinent text of Article 69 is set forth at page 6 of the Judge's Decision in Case No. 5-CA-80334. Article 25 provides:
Temporary Assignment and Associated Per Diem
Section 1. Selection of personnel for temporary nontraining assignments will be accomplished in accordance with the requirements of the job to be done. These assignments will be made on an equitable basis, subject to job requirements and employee qualifications. Within these requirements, employees volunteering for such assignments will be utilized to the extent feasible. Temporary duty assignments involving travel away from the employee's headquarters are inherent to the Relief Technician, Field Maintenance Party, and Facilities and Equipment positions.
Section 2. Before an employee is required to travel on official business, he/she shall be granted an advance of funds, if he/she so requests. The amount of the advance of funds is calculated utilizing the applicable per diem rate and the estimated number of days of travel.
Section 3. Travel vouchers are to be submitted at least every thirty (30) days and in accordance with local policy. In order to prevent an undue financial burden upon the employee, travel vouchers shall be paid as promptly as possible. In the case of a questionable item or items on a submitted travel voucher, that amount may be withheld by the paying office, pending clarification, but the balance of the claim is to be paid promptly.
Section 4. All matters not specified above, relating to temporary assignments and associated per diem, shall be governed by agencywide directives.
A. Case No. 5-CA-80334
On May 10, 1988, the Respondent orally advised four radar technicians at Saginaw that beginning on or about May 23, the Respondent intended to temporarily assign some employees to Toledo "during [Toledo's] period of short staffing." Joint Exhibit 4.(1) By memoranda of May 18 and 19 to the Respondent, the Union requested to bargain concerning the temporary assignments. By memoranda of May 23 and 25, the Respondent advised the Union that it would not negotiate on this matter. In its memorandum of May 23, the Respondent stated, among other things, that it "does not believe temporary details of this type are negotiable or a change in working conditions." Id. In its memorandum of May 25, the Respondent noted that "[t]he parties at the national level negotiated impact and implementation issues concerning temporary assignments (reference Article 25 of the Contract)" and stated that "it is not necessary, nor appropriate to negotiate this matter and Article 69 of the Contract does not apply." Joint Exhibit 5.
No negotiations concerning the temporary assignments occurred. The temporary assignments were rotated among the four Saginaw radar technicians on a weekly basis so that each employee spent 1 week at Toledo and was replaced by another employee. The temporary assignments began on May 23 and continued until on or about July 1, with one technician volunteering for additional weeks.
B. Case No. 5-CA-80458
On August 4, the Respondent orally advised the Union that beginning August 8, certain Saginaw radar technicians would be required to perform some of the Flint workload. In a meeting on August 5, the Union communicated that information to the Saginaw radar technicians. On August 9, the Union requested bargaining concerning the Flint workload assignment and submitted three proposals, and submitted a request for information. By memorandum dated August 10, the Respondent provided the Union with certain information and stated that the Respondent's position on temporary duty assignments was set forth in its May 25 memorandum. A copy of the May 25 memorandum, in which the Respondent had advised the Union that the temporary assignments that were involved in Case No. 5-CA-80334 did not require negotiation, was attached.
As a result of the Flint workload assignment, three Saginaw radar technicians were each required to travel to Flint 1 or 2 days a week to accomplish the work, which was in addition to their regular workload. The Flint workload assignment ended on or about September 30. No negotiations occurred concerning the Flint assignment.
III. Judge's Decisions
A. Case No. 5-CA-80334
The Judge noted initially that the complaint alleged that the Respondent failed to provide the Union with notice and/or refused to bargain concerning the impact and implementation of the Respondent's decision to detail employees from Saginaw to Toledo. The Judge found, however, that "the Union never sought to bargain about impact and implementation" but instead "sought to bargain the asserted 'change' of working conditions." Judge's Decision at 9 (emphasis deleted) and 15 n.7. The Judge stated that "the Union's position was and is that Article 25 [of the agreement] applied only to Relief Technicians, Field Maintenance Party, and Facilities and Equipment positions and, therefore, when Respondent applied Article 25 to other employees, here, specifically, to radar technicians, it changed conditions of employment and, accordingly, Article 69 applied . . . ." Id. at 9-10 (emphasis in original).
The Judge then found that the "Respondent did not change any established condition of employment when it selected radar technicians for temporary assignment. To the contrary, Respondent acted fully in accord with the provisions of Article 25 of its Agreement and fully in accord with long established practice." Id. at 13. The Judge found that "Article 25 of the Agreement, by clear and unambiguous language, is not limited to Relief Technicians, Field Maintenance Party and Relief Technicians but, rather, applied to all employees . . . ." Id. at 15. Based on credited testimony and exhibits showing, among other things, that "for 1987 through October 14, 1988, there were fourteen temporary assignments in the Michigan Sector involving five different radar technicians and four other employees[,] none of whom was a Relief Technician, Field Maintenance Party personnel or Facilities and Equipment personnel[,]" the Judge found that "it had always been the practice to send employees from one Sector field office to another during periods of short staffing and such temporary assignments had not been limited to Relief Technician, Field Maintenance Party and Facilities and Equipment personnel." Id. at 12. The Judge also found that "it was apparent from the Union's bargaining proposals in the negotiations which culminated in the 1984 Agreement that it had no question or reservation that any bargaining unit employee was subject to temporary assignments." Id.
Having found that the Respondent did not change an existing condition of employment, the Judge determined that "the Union had no right to insist upon bargaining" or, stated differently, the Respondent had no duty to bargain under section 7106(b)(2) or (3) of the Statute. Id. at 13.
The Judge next found that, "because temporary assignments are governed by Article 25 of the Agreement, and Respondent did not change any established condition of employment, Article 69 of the Agreement has no application." Id. The Judge noted that Article 69: (1) applies only when the Respondent proposes to change a condition of employment not covered by the Agreement; and (2) precludes further mid-term bargaining in these circumstances.
The Judge further found that "[b]ecause the matter of temporary assignments was contained in the Agreement, there was no duty to bargain mid-term. In addition, because the matter of temporary assignments was contained within the Agreement, this case does not involve a question of waiver." Id. at 14.
The Judge also found that the Respondent did not fail to give the Union adequate notice of the proposed temporary assignments. The Judge noted that: (1) a Union representative was present when the Respondent informed the radar technicians on May 10 that the temporary assignments would begin on or about May 23; and (2) Union representatives responded by letters of May 18 and 19.
Accordingly, the Judge found that the Respondent did not violate section 7116(a)(1) or (5) of the Statute by refusing to bargain concerning a matter specifically provided for in the agreement and recommended that the complaint be dismissed. The Judge noted that there is no provision in the parties' agreement "permitting impact and implementation bargaining on a matter provided for in the Agreement." Id. at 15 n.7.
Noting that he had concluded that Article 25, "by clear and unambiguous language," applies to all employees and not just relief technician, field maintenance party, and facilities and equipment positions, the Judge next considered what the resolution of this case should be if he had erred and Article 25 were deemed subject to differing and arguable interpretations as to its application. Id. at 15. Citing United States Marine Corps, Washington, D.C., et al., 33 FLRA 105, 114 (1988) (Marine Corps I), the Judge stated that if Article 25 were subject to differing and arguable interpretations, the complaint must nonetheless be dismissed because a case that involves differing and arguable interpretations of a collective bargaining agreement is not appropriate for resolution under unfair labor practice procedures.
B. Case No. 5-CA-80458
The Judge noted that "[t]his case is quite like Case No. 5-CA-80334, which involved the temporary assignment of employees from Saginaw to Toledo, Ohio, except that here the employee was not required to be away from home for a period but left Saginaw 'on the clock'; drove to Flint . . .; performed work as required and returned to Saginaw before the end of the shift." Judge's Decision at 2.(2) The Judge stated that the General Counsel asserted that "work assignments of this nature are not addressed by Article 25." Id.
The Judge found that "the temporary assignments were governed by Article 25." Id. The Judge found that, "[c]ontrary to [the] General Counsel's assertion, Article 25 is not limited to temporary assignments requiring travel, or travel away from home 'for a period', or travel orders, although, certainly, Article 25 makes provision for" per diem, among other things. Id. at 9 (footnote omitted).
The Judge found, as he had in Case No. 5-CA-80334, that "it had always been the [Respondent's] practice to send employees from one sector field office to another during periods of short staffing." Id. With respect to testimony by one witness that this type of assignment was usually handled by a relief technician, the Judge concluded that this assertion "simply is not true in the Michigan Sector." Id. The Judge noted that the "Michigan [Sector] does not have relief technicians in the terminal radar field . . . ." Id. The Judge noted that fourteen temporary assignments in the Michigan Sector occurred from 1987 through October 14, 1988. The Judge also noted, among other things, that radar technicians are regularly sent on temporary assignment from Saginaw to other locations for periodic equipment maintenance.
For the reasons stated above and in Case No. 5-CA-80334, the Judge concluded that the Respondent "did not change any established condition of employment when it selected radar technicians for temporary assignment from Saginaw to Flint." Id. at 10. The Judge stated that "[i]n making such temporary assignments, Respondent acted fully in accord with the provisions of Article 25 of its Agreement and fully in accord with long established practice." Id. The Judge found that in the absence of a change in a condition of employment, the Respondent did not have a duty to bargain under section 7106(b)(2) and (3) of the Statute. Accordingly, the Judge found that the Respondent did not violate section 7116(a)(1) and (5) of the Statute when it refused to bargain concerning the impact and implementation of temporary assignments made pursuant to the terms of the parties' agreement, and he recommended that the complaint be dismissed.
Noting that he had concluded that Article 25, "by clear and unambiguous language, is not limited to temporary assignments lasting for more than one day, i.e., which involve per diem, but, rather applies to all temporary assignments whereby the employee moves from one duty assignment to another assignment[,]" the Judge next considered what the resolution of this case should be if he had erred and Article 25 were deemed subject to differing and arguable interpretations as to whether it applies to temporary assignments not involving per diem. Id. at 13. Citing Marine Corps I, the Judge stated that if Article 25 were subject to differing and arguable interpretations, the complaint must nonetheless be dismissed because a case that involves differing and arguable interpretations of a collective bargaining agreement is not appropriate for resolution under unfair labor practice procedures.
IV. General Counsel's Exceptions
A. Case No. 5-CA-80334
The General Counsel contends that this case involves a unilateral change in working conditions for Saginaw electronics technicians. According to the General Counsel, the change, which consisted of temporarily assigning certain employees to Toledo, had a more than de minimis impact on employees at both Saginaw and Toledo and, as such, created an obligation to bargain about the impact and implementation of the change.
As an initial matter, the General Counsel excepts to the Judge's characterization of the General Counsel's position. According to the General Counsel, the Judge incorrectly stated that the General Counsel contended that Article 25 of the parties' agreement did not apply to the radar technicians involved in the temporary reassignments. The General Counsel also excepts to the Judge's finding that the Union never sought to bargain about impact and implementation. The General Counsel notes that the parties stipulated that the Union requested to bargain concerning the temporary reassignment of the Saginaw employees.
The General Counsel also excepts to the Judge's conclusion that the Respondent did not change any established condition of employment when it selected radar technicians for temporary assignment. According to the General Counsel, the facts of the case establish that the Respondent changed the working conditions of Saginaw employees when they were temporarily reassigned to Toledo. The General Counsel asserts that the question of whether a change occurred may not be answered by an examination of the parties' collective bargaining agreement and that the Judge erred in applying such an analysis. According to the General Counsel, a change occurred that clearly had an impact on employees that was more than de minimis and consequently gave rise to an obligation to bargain over impact and implementation.
The General Counsel also contends that the Judge erred in not addressing the issue of whether the parties' agreement contained a waiver. According to the General Counsel, the parties' agreement does not contain any waiver and the Union did not expressly or impliedly waive its right to bargain concerning this change.
Moreover, the General Counsel takes issue with the Judge's statement that the case should be dismissed because it involves differing and arguable interpretations of the collective bargaining agreement. The General Counsel asserts that inasmuch as the issue in this case involves statutory bargaining rights, such rights can only be waived clearly and unmistakably, not through differing and arguable interpretations of an agreement. According to the General Counsel, "the fact that the parties in this case appear to have plausible but differing interpretations of Article 25 and 69 of their contract requires the conclusion that they do not constitute a waiver, which must be clear." General Counsel's Brief at 8 (emphasis in original).
The General Counsel contends that a correct analysis in this case requires that the following issues be addressed: "Did the Respondent's temporary assignment of its Saginaw employees in May and June 1989 [sic] constitute a change in working conditions for them? Did the Respondent have an obligation to bargain concerning this change? Did Respondent fulfill this obligation?" Id. at 10.
The General Counsel contends that the temporary reassignment of the four technicians was a change in their working conditions and that the change had more than a de minimis impact on them and on the employees who were not reassigned, who had to meet the entire workload for the facility without assistance. The General Counsel notes further that the parties stipulated that: (1) the Union requested bargaining on the temporary assignments; (2) the Respondent took the position that it had no obligation to bargain about them; and (3) the assignments were implemented without any negotiations having taken place.
B. Case No. 5-CA-80458
The General Counsel excepts to the Judge's conclusions that the Respondent did not change any established condition of employment when it selected radar technicians for temporary assignments from Saginaw to Flint, and that the Respondent did not violate section 7116(a)(1) and (5) of the Statute by refusing to bargain over the impact and implementation of the temporary assignments.
The General Counsel asserts that Article 25 of the parties' negotiated agreement does not apply to the situation in this case. In the General Counsel's view, Article 25 applies to situations where employees are temporarily reassigned from one facility to another. The General Counsel draws a distinction between the agreement and this case, because in this case the employees "were given workload to do in addition to their regular duties, and the workload was some distance away requiring daily travel" back and forth. Exceptions at 3.
According to the General Counsel, the parties had "conducted themselves in the past as though Article 25 did not apply to assignments of this sort that occurred in this case." Id. The General Counsel repeats the other arguments raised in the exceptions to the Judge's Decision in Case No. 5-CA-80334.
V. Respondent's Opposition in Case No. 5-CA-80334
The Respondent asserts that there was no change that occurred to trigger a duty to bargain in this case. According to the Respondent, the temporary assignments were carried out consistent with the terms of the national agreement and in accordance with established practice. The Respondent maintained that such temporary assignments had occurred for several years, including assignments to Alma, Alpena, and Houghton Lake, Michigan.
The Respondent contends that the General Counsel has failed to carry the fundamental burden of proof in these cases. The Respondent asserts that first, the record establishes that using short-term assignments to cover staffing shortfalls within the Michigan Sector does not constitute a change--the practice of using short-term assignments is the norm. Second, the Respondent argues that in carrying out the Toledo and Flint assignments management complied with the parties' agreement.
The Respondent also asserts that its obligation to bargain concerning temporary assignments had been met at the bargaining table during the negotiation of the national agreement. The Respondent contends that "[t]he bargaining history of the negotiation of [A]rticle 25 of the current national agreement, coupled with the past practices which have evolved with the administration of that language, meet the [A]uthority's 'clear and unequivocal' waiver standard." Respondent's Opposition at 2.
The Respondent also contends that the Judge was correct in dismissing the complaint on the basis that the parties' underlying dispute involves differing and arguable contract interpretations. The Respondent asserts that the unfair labor practice forum is not the appropriate forum for resolution of this issue. According to the Respondent, a grievance regarding the intent of the disputed language in Article 25 should have been filed under the provisions of the contract.
VI. Analysis and Conclusions
In order to determine whether the Respondent committed the unfair labor practices alleged in these cases, we must first determine whether the Respondent changed employees' conditions of employment and, if so, whether that change had more than a de minimis impact on employees' conditions of employment. The changes at issue in these cases concern temporary assignments. A decision to temporarily assign employees is the exercise of a management right under section 7106(a)(2)(A) of the Statute. An agency does not have an obligation to bargain over such decisions, but it does have an obligation to bargain over the procedures and appropriate arrangements that it will observe in exercising its right--that is, impact and implementation bargaining under section 7106(b)(2) and (3) of the Statute. If the Respondent did change conditions of employment and that change had more than a de minimis impact, then we must determine whether, in view of the terms of the parties' collective bargaining agreement, the Respondent had an obligation to bargain with the Union over the impact and implementation of those changes.
For the reasons discussed below, we find that in both Case No. 5-CA-80334 and Case No. 5-CA-80458 we need not decide whether the Respondent's actions constituted changes in employees' conditions of employment that had more than a de minimis effect on employees' conditions of employment because, in any event, the Respondent was under no obligation to bargain with the Union over the impact and implementation of changes relating to temporary assignments. Accordingly, we will dismiss the complaints in both cases.
A. Case No. 5-CA-80334
In this case, we need not decide whether the temporary assignments of radar technicians from Saginaw to Toledo constituted a change in employees' conditions of employment which had more than a de minimis impact because we conclude that as a result of the clear language of Article 25 of the parties' agreement, the Respondent was under no further obligation to bargain over the impact and implementation of changes related to temporary assignments.(3)
A decision to temporarily assign employees is the exercise of a management right under section 7106(a)(2)(A) of the Statute. U.S. Department of the Treasury, Customs Service, Washington, D.C. and Customs Service, Northeast Region, Boston, Massachusetts, 38 FLRA 770, 786 (1990) (Customs, Northeast Region). However, an agency has a duty to bargain over the procedures that it will observe in exercising its rights and over appropriate arrangements for employees adversely affected by the exercise of its rights-- that is, "impact and implementation bargaining" under section 7106(b)(2) and (3) of the Statute--unless the union has clearly and unmistakably waived its right to bargain about those matters. Department of the Air Force, Nellis Air Force Base, Nevada, 41 FLRA 1011, 1015-17 (1991) (Nellis AFB); Department of the Army, U.S. Army Finance and Accounting Center, Indianapolis, Indiana, 39 FLRA 1586, 1587 (1991) (Army Finance and Accounting Center); U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 31 FLRA 1231 (1988) (Corps of Engineers).
A waiver of a union's statutory right to bargain must be clear and unmistakable. Customs, Northeast Region, 38 FLRA at 784. A waiver can be established in several ways, including by express agreement or by reliance on bargaining history. Department of the Navy, Marine Corps Logistics Base, Albany, Georgia and American Federation of Government Employees, 39 FLRA 1060, 1066 (1991), (Department of the Navy) petition for review filed sub nom. Department of the Navy, Marine Corps Logistics Base, Albany, Georgia v. FLRA, No. 91-1211 (D.C. Cir. May 9, 1991). A waiver by express agreement may be established by specifying a particular subject matter that is precluded from further bargaining during the term of the agreement. Id. The Authority will also find that the right to bargain further over a negotiable matter has been clearly and unmistakably waived if the particular subject matter of a union's bargaining request is specifically addressed in the negotiated agreement. Corps of Engineers, 31 FLRA at 1235-36. If the particular subject matter is not specifically addressed in the agreement, we will look to see whether the union otherwise waived its right to engage in bargaining about that subject. Nellis AFB, 41 FLRA at 1016. Where a matter sought to be bargained is contained in the agreement, an agency is under no further obligation to bargain over that matter. See Naval Aviation Depot, Norfolk, Virginia and Local Lodge 39, International Association of Machinists and Aerospace Workers, AFL-CIO, 39 FLRA 1597 (1991).
The Respondent argues that Article 25 covers the issue of temporary assignments and that because it followed Article 25 in making the temporary assignments at issue no further bargaining is required. We agree.
Article 25, "Temporary Assignment and Associated Per Diem," discusses selection of personnel for temporary assignments. Sections 1 through 3 of Article 25 address selection of personnel for temporary assignments, travel advances, and travel vouchers. Section 4, the last section of Article 25, states: "All matters not specified above, relating to temporary assignments and associated per diem, shall be governed by agencywide directives." We find that, by its clear language, Article 25 addresses all bargainable aspects of temporary assignments of unit employees. That is, Article 25 specifically addresses particular bargainable aspects of temporary assignments and provides that all other matters not otherwise specified related to temporary assignments are governed by agencywide directives. Accordingly, as the matters sought to be bargained are contained in the parties' agreement, the Respondent was under no further obligation to bargain over temporary assignments. See id.
B. Case No. 5-CA-80458
We need not decide whether the temporary assignments of radar technicians from Saginaw to Flint for 1-day assignments per week during August and September 1988 constituted a change in conditions of employment which was more than de minimis.(4) Even if those temporary assignments constituted a change in conditions of employment which was more than de minimis, we find, for the reasons stated in our discussion of Case No. 5-CA-80334, that, by its clear language, Article 25 of the parties' agreement addresses all bargainable aspects of temporary assignments of unit employees. Accordingly, as the matters sought to be bargained are contained in the parties' agreement, the Respondent was under no further obligation to bargain over temporary assignments.
C. Summary
For the reasons set forth above, we conclude that the Respondent did not commit the unfair labor practices alleged in Case No. 5-CA-80334 and in Case No. 5-CA-80458. Accordingly, we will dismiss the complaints in both cases.
VII. Order
The complaints in Case No. 5-CA-80334 and in Case No. 5-CA-80458 are dismissed.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. Unless otherwise specified, all dates refer to 1988.
2. As noted earlier, the Judge incorporated by reference his findings in Case No. 5-CA-80334.
3. We note that the Judge found that the Respondent did not change employees' conditions of employment when it selected radar technicians for temporary assignment. In so finding, the Judge stated, in part, that "[t]o the contrary, Respondent acted fully in accord with the provisions of Article 25 of its Agreement . . . ." Judge's Decision at 13. We reject the Judge's reliance on the parties' agreement as a factor in determining whether the Respondent changed employees' conditions of employment. The determination as to whether a change occurred involves an inquiry into the facts and circumstances regarding the Respondent's conduct and employees' conditions of employment. Consideration of the parties' agreement becomes relevant if the Respondent raises it as a defense after a determination is made that the Respondent's actions gave rise to a bargaining obligation.
4. For the reasons stated above in our discussion of Case No. 5-CA-80334, we reject the Judge's reliance on the parties' agreement as a factor in determining whether the Respondent changed employees' conditions of employment.