U.S. Department of the Air Force, 47th Air Base Group (ATC), Laughlin Air Force Base, Texas (Respondent) and American Federation of Government Employees, AFL-CIO, Local 1749 (Charging Party)

 



[ v04 p469 ]
04:0469(65)CA
The decision of the Authority follows:


 4 FLRA No. 65
 
 U.S. DEPARTMENT OF THE AIR FORCE
 47TH AIR BASE GROUP (ATC)
 LAUGHLIN AIR FORCE BASE, TEXAS
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1749
 Charging Party
 
                                            Case No. 6 -CA-144
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
 ORDER IN THE ABOVE-ENTITLED PROCEEDING RECOMMENDING THAT THE UNFAIR
 LABOR PRACTICE COMPLAINT BE DISMISSED IN ITS ENTIRETY.  THE GENERAL
 COUNSEL FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
 DECISION AND ORDER AND THE RESPONDENT FILED A REPLY TO THE GENERAL
 COUNSEL'S EXCEPTIONS.
 
    THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135), THE AUTHORITY
 HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
 HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS
 ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER, AND THE ENTIRE RECORD IN THE
 CASE, INCLUDING THE GENERAL COUNSEL'S EXCEPTIONS AND THE RESPONDENT'S
 REPLY THERETO, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW
 JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN FL'A CASE NO. 6-CA-144 BE,
 AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    JOHN J. FRANCO, ESQUIRE
                            FOR THE RESPONDENT
 
    SUSAN E. JELEN, ESQUIRE
    STEVEN M. ANGEL, ESQUIRE
                          FOR THE GENERAL COUNSEL
 
    BEFORE:  GARVIN LEE OLIVER
                         ADMINISTRATIVE LAW JUDGE
 
                                                     CASE NO. 6-CA-144
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ. (THE STATUTE).
 IT WAS INITIATED BY AN UNFAIR LABOR PRACTICE CHARGE FILED ON JUNE 18,
 1979 BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1749
 (AFL-CIO) (CHARGING PARTY OR UNION).  (GENERAL COUNSEL'S EX. 1(A)).  AS
 A RESULT THEREOF, THE GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS
 AUTHORITY (GENERAL COUNSEL), BY THE REGIONAL DIRECTOR, SIXTH REGION,
 DALLAS, TEXAS, ISSUED A COMPLAINT AND NOTICE OF HEARING AGAINST THE
 DEPARTMENT OF THE AIR FORCE, 47TH AIR BASE GROUP (ATC), LAUGHLIN AIR
 FORCE BASE, TEXAS (RESPONDENT).
 
    THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED 5
 U.S.C. 7116(A)(1) AND (5) BY REFUSING TO BARGAIN IN GOOD FAITH WITH THE
 UNION IN THAT (A) ON OR ABOUT LATE JANUARY 1979, RESPONDENT BY-PASSED
 THE UNION AND DEALT DIRECTLY WITH EMPLOYEES CONCERNING THE CLOSING OF
 THE SNACK BAR AT THE BASE BOWLING ALLEY, /1/ AND (B) ON OR ABOUT
 FEBRUARY 1, 1979, RESPONDENT ENGAGED IN AN ATTEMPT TO UNDERMINE THE
 UNION, AND AVOID GOOD FAITH BARGAINING, BY RESCINDING AN AGREEMENT WITH
 THE UNION NOT TO CLOSE THE SNACK BAR AT THE BASE BOWLING ALLEY AND
 PERMITTING EMPLOYEES TO CONTINUE TO WORK.  (GENERAL COUNSEL'S EX. 1(D)).
 
    RESPONDENT'S ANSWER DENIED THESE ALLEGATIONS AND ASSERTED THAT THE
 DECISION TO CLOSE THE SNACK BAR AND ITS IMPACT ON THE WORK STATUS OF
 EMPLOYEES WERE NOT NEGOTIABLE MATTERS IN THAT REPRESENTATIVES OF THE
 RESPONDENT WERE ACTING PURSUANT TO THE PROVISIONS OF AIR FORCE
 REGULATION 40-7, "NONAPPROPRIATED FUNDS PERSONNEL MANAGEMENT AND
 ADMINISTRATION." (GENERAL COUNSEL'S EX. 1(F)).
 
    A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED IN DEL RIO,
 TEXAS.  THE GENERAL COUNSEL AND THE RESPONDENT WERE REPRESENTED BY
 COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT
 EVIDENCE, EXAMINE AND CROSS-EXAMINE WITNESSES, AND FILE POST-HEARING
 BRIEFS.
 
    BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
 ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
 FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.  ANY PROPOSED FINDING OR
 CONCLUSION WHICH IS INCONSISTENT WITH THE FOLLOWING HAS BEEN CAREFULLY
 CONSIDERED AND IS HEREBY DENIED.
 
                             FINDINGS OF FACT
 
    1.  DURING JANUARY AND FEBRUARY OF 1979 AND AT ALL MATERIAL TIMES THE
 RESPONDENT OPERATED A BOWLING CENTER, A NONAPPROPRIATED FUND
 INSTRUMENTALITY (NAFI), WHICH INCLUDED A SMALL SNACK BAR.  (TR. 75,
 121).
 
    2.  SINCE AUGUST OF 1978 AND AT ALL MATERIAL TIMES THE UNION HAS BEEN
 THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR ALL NON-SUPERVISORY
 NONAPPROPRIATED FUND EMPLOYEES, INCLUDING INTERMITTENT EMPLOYEES AND
 TEMPORARY EMPLOYEES WHOSE CONTINUOUS APPOINTMENT EXCEEDS 180 DAYS
 SERVICED BY THE CIVILIAN PERSONNEL OFFICE, LAUGHLIN AIR FORCE BASE,
 TEXAS.  (GENERAL COUNSEL'S EX. 1).  OTHER THAN A DUES DEDUCTION
 AGREEMENT, THERE HAS NEVER BEEN A GENERAL LABOR AGREEMENT BETWEEN THE
 PARTIES PERTAINING TO THE EMPLOYEES IN THE ABOVE DESCRIBED UNIT.  (TR.
 66-67).
 
    3.  ON JANUARY 25, 1979, MR. TERRY CRISWELL, MANAGER OF THE BOWLING
 CENTER, WAS NOTIFIED BY BASE CIVIL ENGINEERING THAT CONSTRUCTION WORK
 WOULD BE PERFORMED OVER THE SNACK BAR BEGINNING ON FEBRUARY 5, 1979, AND
 THAT THE SNACK BAR WOULD HAVE TO BE CLOSED DURING THE PERIOD OF SUCH
 CONSTRUCTION. (TR. 79-80, 96-97, 102).  BECAUSE THERE HAD BEEN
 CONSIDERABLE PAST DISCUSSION ABOUT THE GREASE RACK HOOD OVER THE GRILL
 IN THE SNACK BAR BEING A SAFETY HAZARD IN THAT IT WAS TOO HIGH, MR.
 CRISWELL WAS UNDER THE IMPRESSION THAT THE WORK TO BE PERFORMED INVOLVED
 THE LOWERING OF THE HOOD.  (TR. 75, 102-104).  /2/
 
    4.  WITHIN 30 MINUTES OF RECEIVING WORD OF THE NECESSITY TO CLOSE THE
 SNACK BAR, MR. CRISWELL VERBALLY NOTIFIED MR. REYNALDO PENA, A PEN
 SETTER MECHANIC IN THE BOWLING LANES, AND THE UNION'S VICE PRESIDENT FOR
 NONAPPROPRIATED FUND PERSONNEL.  (TR. 79-80, 94-95, 97-98;  30-32, 79).
 MR. CRISWELL ADVISED MR. PENA THAT HE WAS NOTIFYING HIM AS A UNION
 OFFICIAL THAT CONSTRUCTION WORK WOULD TAKE PLACE CONCERNING THE HOOD,
 AND THE SNACK BAR WOULD BE CLOSED DOWN FOR A FEW DAYS.  MR. PENA SAID HE
 UNDERSTOOD.  (TR. 95).  /3/
 
    5.  FIFTEEN OR TWENTY MINUTES LATER CRISWELL NOTIFIED THE THREE
 EMPLOYEES AFFECTED.  (TR. 80-81, 95).  HE TOLD THE EMPLOYEES THAT THE
 SNACK BAR WOULD CLOSE BECAUSE OF CONSTRUCTION IN ORDER TO LOWER THE HOOD
 AND, WHILE HE COULD NOT BE SURE OF THE LENGTH OF THE CLOSURE, HE THOUGHT
 THAT IT WOULD BE FOR "TWO OR THREE DAYS OR SO." HE THEN ASKED THE
 EMPLOYEES WHETHER THEY WANTED TO TAKE ANNUAL LEAVE OR LEAVE WITHOUT PAY.
  (TR. 81).
 
    6.  THE TYPE OF LEAVE TO BE TAKEN WHEN THE OPERATIONS OF
 NONAPPROPRIATED FUND INSTRUMENTALITIES ARE SUSPENDED IS SET FORTH IN
 PARAGRAPH 8-10, AIR FORCE REGULATION 40-7, "NONAPPROPRIATED FUNDS
 PERSONNEL MANAGEMENT AND ADMINISTRATION," CHANGE 4, 18 APRIL 1977, WHICH
 READS IN PERTINENT PART AS FOLLOWS:
 
   *          *          *          *
 
 
    8-10.  EXCUSED ABSENCES:
 
   *          *          *          *
 
 
    B.  INSTALLATION COMMANDERS MAY SUSPEND SOME OR ALL NAFI OPERATIONS
 WHEN UNUSUALLY SEVERE
 
    WEATHER CONDITIONS OR OTHER EMERGENCY SITUATIONS DICTATE SUCH ACTIONS
 AS BEING IN THE BEST
 
    INTEREST OF THE AIR FORCE, AND EXCUSE EMPLOYEES AT WORK OR SCHEDULED
 TO BE PRESENT FOR DUTY
 
    WITHOUT A CHARGE OF ANNUAL OR SICK LEAVE.  THE STATUS OF EMPLOYEES ON
 APPROVED LEAVE OR LWOP
 
    DURING PERIODS OF EXCUSED DOES NOT CHANGE.
 
    C.  EMPLOYEES CANNOT BE EXCUSED WITHOUT CHARGE TO LEAVE WHEN
 OPERATIONS ARE SUSPENDED FOR
 
    MANAGERIAL REASONS KNOWN SUFFICIENTLY IN ADVANCE TO PERMIT THE
 SCHEDULING OF LEAVE.  NORMALLY,
 
    EMPLOYEES ARE NOTIFIED 24 HOURS IN ADVANCE BUT WHEN THIS IS
 IMPRACTICABLE, EMPLOYEES ARE
 
    PLACED ON ANNUAL LEAVE IF THEY ARE NOTIFIED BY THE CLOSE OF THE
 PRECEDING WORKDAY.
 
   *          *          *          *
 
 
                               (RESP. EX. 2)
 
    7.  THE TERM "MANAGERIAL REASONS" AS USED IN PARAGRAPH 8-10C ABOVE
 INCLUDES CLOSURE FOR REPAIRS OR RENOVATION.  (TR. 146-147).  AN EMPLOYEE
 CAN BE RELEASED WITH PAY ONLY UNDER THE EMERGENCY CONDITIONS OUTLINED IN
 PARAGRAPH 8-10B ABOVE.  OTHERWISE, THE NONAPPROPRIATED FUND MANAGER'S
 ONLY LEAVE OPTION IS TO PLACE THE EMPLOYEE ON ANNUAL LEAVE, IF HE HAS
 ACCRUED SUFFICIENT LEAVE, OR TO PUT HIM ON LEAVE WITHOUT PAY, IF THE
 EMPLOYEE ELECTS NOT TO TAKE ANNUAL LEAVE, OR HAS NOT ACCRUED SUFFICIENT
 ANNUAL LEAVE.  (TR. 145-147).
 
    8.  THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AMONG OTHER
 UNIONS, ARE AFFORDED NATIONAL CONSULTATION RIGHTS WITH RESPECT TO AFR
 40-7 AND CHANGES THEREIN.  (TR. 141-142).
 
    9.  AFTER RAUL NOYOLA, A MAINTENANCE WORKER IN THE BOWLING ALLEY AND
 SNACK BAR, WAS NOTIFIED BY CRISWELL, NOYOLA APPROACHED ROY FLORES,
 PRESIDENT OF THE UNION, WHILE HE WAS IN THE SNACK BAR ON JANUARY 27 OR
 28, 1979.  NOYOLA TOLD FLORES ABOUT THE CLOSING AND INQUIRED WHETHER
 MANAGEMENT COULD DO THIS.  FLORES STATED THAT THE UNION HAD NOT BEEN
 NOTIFIED, AND HE WOULD CHECK FURTHER ON IT.  (TR. 28, 44).
 
    10.  FLORES TESTIFIED THAT THIS DISCUSSION WITH NOYOLA WAS THE FIRST
 TIME THAT HE HAD ANY KNOWLEDGE OF THE TEMPORARY CLOSING.  (TR. 43, 44).
 IN THE PAST, HE HAD BEEN NOTIFIED IN WRITING BY THE PERSONNEL OFFICER OR
 LABOR RELATIONS OFFICER OF ANY CHANGES IN WORKING CONDITIONS OF UNIT
 EMPLOYEES. (TR. 151).
 
    11.  FOLLOWING HIS DISCUSSION WITH NOYOLA, FLORES CONTACTED CARLOS
 TUNCHES, CIVILIAN PERSONNEL OFFICER, TO PROTEST THE UNION'S NOT BEING
 INFORMED OF THE CLOSING.  (TR. 44).  TUNCHES RESPONDED BY SENDING THE
 UNION WRITTEN NOTIFICATION IN A LETTER DATED JANUARY 30, 1979.  (TR. 44,
 45, JOINT EX. 3).  FLORES THEN FILED AN UNFAIR LABOR PRACTICE CHARGE
 WITH THE RESPONDENT OVER ITS ACTION.  /4/ (TR. 45, JOINT EX. 4 AND 5).
 
    12.  RESPONDENT AND THE UNION MET INFORMALLY ON JANUARY 31, 1979 TO
 DISCUSS THE SITUATION.  AT THIS MEETING THE UNION COMPLAINED THAT IT HAD
 NOT BEEN PROPERLY NOTIFIED AND THAT MANAGEMENT HAD ALREADY INFORMED THE
 EMPLOYEES OF THE CLOSING.  THE UNION REQUESTED THAT THE SNACK BAR
 CLOSING BE HELD IN ABEYANCE, OR, IF THEY WERE GOING AHEAD, THAT
 EMPLOYEES BE PLACED ON DETAIL, OR GIVEN ADMINISTRATIVE LEAVE.
 MANAGEMENT RESPONDED THAT UNDER THE REGULATIONS ONLY 24 HOURS NOTICE
 WAS
 REQUIRED, AND THE EMPLOYEES WOULD HAVE TO TAKE ANNUAL LEAVE OR LEAVE
 WITHOUT PAY.  (TR. 47).
 
    13.  ON THE MORNING OF FEBRUARY 1, 1979 REPRESENTATIVES OF THE UNION
 AND THE RESPONDENT MET AGAIN.  RESPONDENT STATED THAT THE UNION WOULD BE
 GIVEN THE BENEFIT OF THE DOUBT ON THE ISSUE OF WHETHER THE UNION HAD
 BEEN NOTIFIED AND PRESENTED A PROPOSED MEMORANDUM IN AN EFFORT TO
 RESOLVE THE UNFAIR LABOR PRACTICE CHARGE.  (TR. 48, 83, 117-119, 138).
 THIS MEMORANDUM PROVIDED THAT "THE OFFICIAL NOTIFICATION TO THE FOUR NAF
 EMPLOYEES REGARDING THE TEMPORARY CLOSING OF THE SNACK BAR AT THE
 BOWLING LANES IS HEREBY CANCELLED IN ITS ENTIRETY . . . .  REST ASSURED
 THAT AFGE LOCAL 1749 WILL BE NOTIFIED, IN ADVANCE OF EMPLOYEE
 NOTIFICATION, ON APPROPRIATE MATTERS IN THE FUTURE." (JOINT EX. 6).
 
    14.  FLORES ASKED TUNCHES IF THE MEMO MEANT THAT HE WAS GOING TO
 CANCEL THE WHOLE THING IN ITS ENTIRETY-- THE NOTIFICATION AND THE
 CLOSING DOWN OF THE SNACK BAR.  TUNCHES AGREED THAT WAS THE MEANING OF
 THE MEMO.  FLORES THEN SIGNED THE AGREEMENT.  (TR. 49).  FLORES ALSO
 REQUESTED AT THIS MEETING THAT THE UNION BE GIVEN 30 DAYS TO NEGOTIATE
 THE IMPACT OF THE CLOSING BEFORE THE RESPONDENT IMPLEMENTED THE PROPOSED
 SHUT DOWN.  ACCORDING TO FLORES, TUNCHES SAID THERE WOULD BE "NO
 PROBLEM, THAT THEY WERE GOING TO CANCEL THE WHOLE THING UNTIL (THE UNION
 WAS) GIVEN AMPLE TIME TO NEGOTIATE." (TR. 50).
 
    15.  THE PARTIES DISAGREE AS TO WHEN OR HOW THE MATTER OF THE SNACK
 BAR CLOSING WAS TO BE RE-OPENED.  THE UNION'S VERSION OF THE AGREEMENT
 WAS THAT MANAGEMENT WOULD POSTPONE THE REPAIR WORK AND ALLOW THE
 EMPLOYEES TO WORK (TR. 34) OR "TO CANCEL THE WHOLE THING IN ITS
 ENTIRETY, NOTIFICATION AND THE CLOSING OF THE SNACK BAR." (TR. 49).
 MANAGEMENT'S PREFERRED VERSION IS THAT ONLY THE PRIOR NOTIFICATION TO
 EMPLOYEES WAS CANCELLED AND THAT MANAGEMENT WOULD START THE PROCESS
 OVER.  (TR.117-119, 138).  /5/ I FIND THAT THERE WAS AN AGREEMENT THAT
 "EVERYTHING WAS CANCELLED" AS OF THE TIME OF THE AGREEMENT, AND THAT
 MANAGEMENT COULD RESTART THE PROCESS OF CLOSING THE SNACK BAR OVER AGAIN
 WITH PROPER NOTICE TO THE UNION.  I FIND THERE WAS NO MEETING OF THE
 MINDS AS TO WHEN MANAGEMENT COULD RE-OPEN THE MATTER OF CLOSING THE
 SNACK BAR.  I DO NOT FIND FROM THE UNION'S REQUEST FOR 30 DAYS TO
 NEGOTIATE THE IMPACT OF THE CLOSING, AND ITS VERSION OF MANAGEMENT'S
 REPLY THAT THERE WOULD BE "NO PROBLEM, THAT THEY WERE GOING TO CANCEL
 THE WHOLE THING UNTIL (THE UNION WAS) GIVEN AMPLE TIME TO NEGOTIATE"
 (TR. 50), THAT MANAGEMENT THEREBY AGREED NOT TO CLOSE THE SNACK BAR.
 THIS LANGUAGE IS NOT INCONSISTENT WITH THE VIEW THAT, WITH PROPER
 NOTIFICATION TO THE UNION, MANAGEMENT COULD START THE PROCESS OVER AGAIN
 AT ANY TIME.
 
    16.  FLORES INFORMED THE AFFECTED EMPLOYEES THE SNACK BAR WOULD NOT
 BE SHUT DOWN AND THEN RETURNED TO WORK.  THREE HOURS LATER FLORES WAS
 GIVEN A LETTER BY TUNCHES WHICH NOTIFIED THE UNION THAT THE SNACK BAR
 WOULD BE CLOSED ON FEBRUARY 5, 1979 AND THAT THE AFFECTED EMPLOYEES
 COULD TAKE ANNUAL LEAVE OR LEAVE WITHOUT PAY DURING THE CLOSING.  (TR.
 51-52, 138;  JOINT EX. 7).
 
    17.  AT ABOUT 2:20 P.M. OF THE SAME DAY, FLORES GAVE TUNCHES A LETTER
 STATING THAT THE UNION WANTED TO NEGOTIATE THE IMPACT OF THE CLOSURE OF
 THE SNACK BAR ON THE EMPLOYEES.  FLORES URGED THAT A MEETING TAKE PLACE
 PRIOR TO THE CLOSURE.  SUCH A MEETING DID TAKE PLACE ABOUT 2:30 P.M.
 THAT SAME DAY. (JOINT EX. 8).
 
    18.  AT THE MEETING ON THE AFTERNOON OF FEBRUARY 1, 1979,
 REPRESENTATIVES OF THE UNION AND THE RESPONDENT ENGAGED IN DISCUSSIONS
 AS TO WAYS IN WHICH THE AFFECTED EMPLOYEES MIGHT AVOID HAVING TO TAKE
 ANNUAL LEAVE OR LEAVE WITHOUT PAY.  SUCH SUBJECTS AS PLACING THE
 EMPLOYEES ON ADMINISTRATIVE LEAVE, OR DETAILING THE EMPLOYEES TO WORK
 ELSEWHERE WERE DISCUSSED.  (JOINT EX. 10B;  TR. 53-54, 68, 72, 85, 88,
 111, 118, 122).  MANAGEMENT REPRESENTATIVES CONTINUED TO TAKE THE
 POSITION WITH RESPECT TO THE ADMINISTRATIVE LEAVE ISSUE THAT SUCH LEAVE
 WAS FORBIDDEN BY AIR FORCE REGULATION 40-7 AND THAT THE ONLY OPTIONS
 UNDER THE CIRCUMSTANCES WERE ANNUAL LEAVE OR LEAVE WITHOUT PAY.  (TR.
 72-73).  ULTIMATELY, IT WAS AGREED THAT MANAGEMENT WOULD TRY TO FIND
 WORK FOR THE AFFECTED EMPLOYEES IN OTHER NONAPPROPRIATED FUND FACILITIES
 AND THAT THE PARTIES WOULD MEET AGAIN THE NEXT DAY.  (TR. 69-71, 85-86,
 111-112, 118-119, 122, 123, 138).
 
    19.  FOLLOWING THIS MEETING, MANAGEMENT CONTACTED VARIOUS OTHER
 NONAPPROPRIATED FUND INSTRUMENTALITIES, SUCH AS THE OFFICER'S CLUB, THE
 NCO CLUB, THE DAY CARE CENTER, THE RECREATION CENTER, BASE BILLETING AND
 THE MARINA TO SEE IF THE EMPLOYEES COULD BE GIVEN WORK DURING THE PERIOD
 IN QUESTION.  (TR. 86, 111, 120).
 
    20.  MR. CRISWELL CONTACTED THE NCO CLUB, IN AN EFFORT TO SEE IF
 EMPLOYEES COULD BE DETAILED THERE.  HE FOUND OUT THAT THERE WAS A
 POSSIBILITY OF NIGHT WORK FOR A COOK.  CRISWELL THEN TOLD HIS COOK,
 MARIO CARDENAS, THAT THERE WAS A POSSIBILITY OF NIGHT WORK.  CARDENAS
 ADVISED CRISWELL THAT HE WOULD NOT BE ABLE TO WORK NIGHTS, BECAUSE HE
 WAS GOING TO NIGHT SCHOOL.  (TR. 16, 19, 87-88).  CRISWELL ALSO ASKED
 RAUL NOYOLA, THE MAINTENANCE WORKER, IF HE WOULD BE WILLING TO WORK
 ELSEWHERE IF HE COULD BE RELOCATED.  NOYOLA REPLIED THAT HE WOULD.
 CRISWELL STATED, "OKAY, BECAUSE I'M TRYING TO RELOCATE YOU." (TR. 26,
 93-94).
 
    21.  AT A MEETING ON FEBRUARY 2, 1979, THE UNION WAS TOLD OF
 MANAGEMENT'S UNSUCCESSFUL EFFORTS TO FIND WORK FOR THE EMPLOYEES.  (TR.
 121-122).
 
    22.  PRE-CHARGE UNFAIR LABOR PRACTICE CHARGES WERE FILED BY THE UNION
 AGAINST THE RESPONDENT ON FEBRUARY 2, 1979 ALLEGING THAT THE RESPONDENT
 HAD GIVEN THE UNION TOO SHORT A NOTICE PERIOD TO BARGAIN EFFECTIVELY,
 HAD ENGAGED IN BAD FAITH BARGAINING, AND HAD CIRCUMVENTED THE UNION BY
 GOING DIRECTLY TO EMPLOYEES ON A MATTER APPROPRIATE FOR CONSULTATION OR
 NEGOTIATION WITH THE EXCLUSIVE REPRESENTATIVE.  (JOINT EX. 9, 10).  IN
 ADDITION, THE UNION ALSO REQUESTED THAT THE CLOSING OF THE SNACK BAR BE
 HELD IN ABEYANCE UNTIL THE UNION HAD TIME TO ACQUIRE THE FIRE STANDARDS
 UPON WHICH THE CLOSURE WAS BEING BASED IN ORDER TO NEGOTIATE
 INTELLIGENTLY.  (JOINT EX. 11).  MR. TUNCHES RESPONDED ON FEBRUARY 5
 THAT IT WAS NECESSARY TO CLOSE THE SNACK BAR TO CONFORM THE HOOD
 ASSEMBLY TO FIRE PROTECTION STANDARDS AND THAT "THE CLOSING OF THE SNACK
 BAR IS A MANAGEMENT DECISION NOT SUBJECT TO NEGOTIATIONS." (JOINT EX.
 12).
 
    23.  THE CONSTRUCTION OF FIRE AND DRAFT STOPS OVER THE SNACK BAR WAS
 ACCOMPLISHED DURING THE PERIOD OF FEBRUARY 5-7, 1979.  EMPLOYEES WHO
 WERE REQUIRED TO TAKE ANNUAL LEAVE AS A CONSEQUENCE WERE:  KIMI ROBERTS,
 CASHIER, 8 HOURS;  MARIO CARDENAS, COOK, 32 HOURS;  AND RAUL NOYOLA,
 MAINTENANCE WORKER, 21 HOURS.  (TR. 7).
 
               DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
 
    RESPONDENT'S DECISION TO CLOSE THE SNACK BAR FOR A FEW DAYS BECAUSE
 OF CONSTRUCTION WORK WAS NON-NEGOTIABLE AND A RESERVED MANAGEMENT RIGHT
 WITHIN THE SCOPE OF 5 U.S.C. 7106(A).  THE NUMBER OF EMPLOYEES TO BE
 UTILILZED DURING THE PERIOD, AS WELL AS THE TECHNOLOGY, METHODS, AND
 MEANS OF PERFORMING WORK, WAS NEGOTIABLE ONLY AT THE ELECTION OF THE
 AGENCY PURSUANT TO SECTION 7106(B)(1).  THE TYPE OF LEAVE TO BE TAKEN BY
 EMPLOYEES WHO WERE NOT UTILIZED DURING SUCH SUSPENSION OF OPERATIONS WAS
 GOVERNED BY AIR FORCE REGULATION 40-7, AN AGENCY-WIDE REGULATION, OVER
 WHICH NATIONAL CONSULTATION RIGHTS HAD BEEN AFFORDED.  HOWEVER,
 RESPONDENT WAS OBLIGATED, BY SECTION 7106(B)(2) AND (3) OF THE STATUTE,
 TO AFFORD THE EXCLUSIVE REPRESENTATIVE REASONABLE NOTICE OF ITS
 INTENTION TO CLOSE THE SNACK BAR AND AN OPPORTUNITY TO NEGOTIATE WITH
 RESPECT TO THE PROCEDURES WHICH MANAGEMENT WOULD OBSERVE IN EXERCISING
 ITS AUTHORITY AND APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY
 AFFECTED BY ITS EXERCISE OF AUTHORITY, UNLESS SUCH NEGOTIATIONS WOULD
 PREVENT THE AGENCY FROM ACTING AT ALL.
 
    SECTION 7114(A)(1) PROVIDES THAT A LABOR ORGANIZATION WHICH HAS BEEN
 ACCORDED EXCLUSIVE RECOGNITION IS THE EXCLUSIVE REPRESENTATIVE OF THE
 EMPLOYEES IN THE UNIT IT REPRESENTS AND IS ENTITLED TO ACT FOR, AND
 NEGOTIATE COLLECTIVE BARGAINING AGREEMENTS COVERING ALL EMPLOYEES IN THE
 UNIT.  FURTHER, SECTION 7114(A)(2)(A) PROVIDES THAT AN EXCLUSIVE
 REPRESENTATIVE SHALL BE GIVEN AN OPPORTUNITY TO BE REPRESENTED AT "ANY
 FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE AGENCY AND
 ONE OR MORE EMPLOYEES IN THE UNIT OR THEIR REPRESENTATIVES CONCERNING
 ANY GRIEVANCE OR ANY PERSONNEL POLICY OR PRACTICES OR OTHER GENERAL
 CONDITIONS OF EMPLOYMENT . . . . " IN CARRYING OUT THIS MANDATE, SECTION
 7116(A)(5) MAKES IT AN UNFAIR LABOR PRACTICE FOR AN AGENCY "TO REFUSE TO
 CONSULT OR NEGOTIATE IN GOOD FAITH WITH A LABOR ORGANIZATION AS REQUIRED
 BY THIS CHAPTER."
 
    AS FOUND ABOVE, THE MANAGER OF THE BOWLING CENTER, TERRY CRISWELL,
 UPON LEARNING THAT THE SNACK BAR WOULD HAVE TO BE CLOSED, PROMPTLY
 NOTIFIED REYNALDO PENA, A MECHANIC IN THE BOWLING LANES AND THE UNION'S
 VICE PRESIDENT FOR NONAPPROPRIATED FUND PERSONNEL.  ALTHOUGH IT WAS
 RESONDENT'S PRACTICE TO NOTIFY THE UNION PRESIDENT IN WRITING OF SUCH
 MATTERS, THIS NOTICE TO A RESPONSIBLE UNION OFFICER BEFORE ANY FINAL
 ACTION WAS TAKEN AND PRIOR TO ITS NOTICE TO EMPLOYEES, CONSTITUTED
 ADEQUATE NOTICE TO THE UNION.  THE AUTHORITY HAS FOUND SPECIFIC
 NOTIFICATIONS OF SIMILAR UNION OFFICERS AND STEWARDS TO BE ADEQUATE
 DESPITE MORE FORMAL NOTIFICATION PRACTICES HAVING BEEN UTILIZED IN THE
 PAST.  INTERNAL REVENUE SERVICE (IRS) AND BROOKLYN DISTRICT OFFICE, IRS,
 2 FLRA NO. 76(1980) AND INTERNAL REVENUE SERVICE, IRS AND RICHMOND
 DISTRICT OFFICE, 2 FLRA NO.  43(1979).
 
    FIFTEEN OR TWENTY MINUTES AFTER THE NOTIFICATION OF MR. PENA, THE
 BOWLING CENTER MANAGER NOTIFIED THE EMPLOYEES OF THE CLOSURE AND ASKED
 THEM WHETHER THEY WANTED TO TAKE ANNUAL LEAVE OR LEAVE WITHOUT PAY.  THE
 GENERAL COUNSEL CONTENDS THAT RESPONDENT, BY THIS CONDUCT, BY-PASSED THE
 UNION AND DEALT DIRECTLY WITH EMPLOYEES.
 
    THE FEDERAL LABOR RELATIONS COUNCIL IN CONSIDERING A CASE ARISING
 UNDER EXECUTIVE ORDER 11491, AS AMENDED, DEPARTMENT OF THE NAVY, NAVAL
 AIR STATION, FALLON, NEVADA, A/SLMR NO. 432, FLRC NO. 74A-80, 3 FLRC
 697(1975) HELD THAT THE FOLLOWING CRITERIA SHOULD BE USED IN DETERMINING
 WHETHER A COMMUNICATION AMOUNTS TO AN ATTEMPT TO BYPASS THE EXCLUSIVE
 REPRESENTATIVE:
 
    IN DETERMINING WHETHER A COMMUNICATION IS VIOLATIVE OF THE ORDER, IT
 MUST BE JUDGED
 
    INDEPENDENTLY AND A DETERMINATION MADE AS TO WHETHER THAT
 COMMUNICATION CONSTITUTES, FOR
 
    EXAMPLE, AN ATTEMPT BY AGENCY MANAGEMENT TO DEAL OR NEGOTIATE
 DIRECTLY WITH UNIT EMPLOYEES OR
 
    TO THREATEN OR PROMISE BENEFITS TO EMPLOYEES.  IN REACHING THIS
 DETERMINATION, BOTH THE
 
    CONTENT OF THE COMMUNICATION AND THE CIRCUMSTANCES SURROUNDING IT
 MUST BE CONSIDERED. MORE
 
    SPECIFICALLY, ALL COMMUNICATIONS BETWEEN AGENCY MANAGEMENT AND UNIT
 EMPLOYEES OVER MATTERS
 
    RELATING TO THE COLLECTIVE BARGAINING RELATIONSHIP ARE NOT VIOLATIVE.
  RATHER COMMUNICATIONS
 
    WHICH, FOR EXAMPLE, AMOUNT TO AN ATTEMPT TO BYPASS THE EXCLUSIVE
 REPRESENTATIVE AND BARGAIN
 
    DIRECTLY WITH EMPLOYEES, OR WHICH URGE EMPLOYEES TO PUT PRESSURE ON
 THE REPRESENTATIVE TO TAKE
 
    A CERTAIN COURSE OF ACTION, OR WHICH THREATEN OR PROMISE BENEFITS TO
 EMPLOYEES ARE VIOLATIVE
 
    OF THE ORDER.  (FOOTNOTE OMITTED).
 
    ALL THE BOWLING MANAGER DID WAS TO NOTIFY THE EMPLOYEES INDIVIDUALLY
 OF THE ANTICIPATED CLOSURE OF THE SNACK BAR AND OF THE LEAVE OPTIONS
 AVAILABLE TO THEM UNDER THE REGULATION DURING SUCH CLOSURE.  HE WAS NOT
 A PERSONNEL OFFICER NOR WAS HE SHOWN TO HAVE HAD AUTHORITY TO ESTABLISH
 PERSONNEL POLICIES OR PRACTICES.  HE DID NOT ATTEMPT TO BARGAIN DIRECTLY
 WITH THE EMPLOYEES CONCERNING THE PROCEDURES WHICH MANAGEMENT WOULD
 USE
 IN CLOSING THE SNACK BAR OR CONCERNING OTHER POSSIBLE ARRANGEMENTS FOR
 THEM OTHER THAN LEAVE.  I CONCLUDE, THEREFORE, THAT THIS WAS NOT A
 FORMAL DISCUSSION UNDER SECTION 7114(A)(2)(A) AT WHICH THE EXCLUSIVE
 REPRESENTATIVE WAS ENTITLED TO AN OPPORTUNITY TO BE REPRESENTED AND THAT
 THE COMMUNICATION WAS NOT AN ATTEMPT BY THE RESPONDENT TO BYPASS THE
 EXCLUSIVE REPRESENTATIVE AND COMMUNICATE DIRECTLY WITH UNIT EMPLOYEES
 REGARDING COLLECTIVE BARGAINING MATTERS, OR TO UNDERMINE THE STATUS OF
 THE EXCLUSIVE REPRESENTATIVE.
 
    THE GENERAL COUNSEL CONTENDS THAT RESPONDENT RESCINDED AN AGREEMENT
 WITH THE UNION NOT TO CLOSE THE SNACK BAR AND TO PERMIT EMPLOYEES TO
 WORK, THEREBY ENGAGING IN AN ATTEMPT TO UNDERMINE THE UNION AND TO AVOID
 GOOD FAITH BARGAINING.  AS FOUND ABOVE, WHILE THERE WAS AN AGREEMENT
 THAT "EVERYTHING WAS CANCELLED," IT WAS ALSO A PART OF THE AGREEMENT
 THAT MANAGEMENT COULD COMMENCE THE PROCESS OF CLOSING THE SNACK BAR
 AGAIN WITH PROPER NOTICE TO THE UNION.  THERE WAS NO AGREEMENT AS TO
 WHEN MANAGEMENT COULD START THE PROCESS OVER AGAIN.  MANAGEMENT DID
 START THE PROCESS AGAIN, WITHIN A MATTER OF HOURS, BY NOTIFYING THE
 UNION, AND, UPON THE UNION'S REQUEST, THE PARTIES DID ENGAGE IN GOOD
 FAITH BARGAINING CONCERNING THE IMPACT AND IMPLEMENTATION OF THE
 CLOSURE.  /6/ THUS, IT IS CONCLUDED THAT THE PREPONDERANCE OF THE
 EVIDENCE DOES NOT ESTABLISH THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1)
 AND (5) OF THE STATUTE BY RESCINDING AN AGREEMENT.
 
    THE GENERAL COUNSEL ALSO ALLEGES THAT RESPONDENT VIOLATED SECTIONS
 7116(A)(1) AND (5) OF THE STATUTE BY BYPASSING THE UNION AND DEALING
 DIRECTLY WITH EMPLOYEES WHEN THE BOWLING CENTER MANAGER, TERRY CRISWELL,
 CONTACTED TWO EMPLOYEES TO DETERMINE IF THEY WOULD BE WILLING TO WORK
 ELSEWHERE DURING THE CLOSURE OF THE SNACK BAR.
 
    AS NOTED, DURING THE IMPACT AND IMPLEMENTATION BARGAINING CONCERNING
 THE CLOSING OF THE SNACK BAR, MANAGEMENT AGREED TO THE UNION'S DEMAND
 THAT IT ATTEMPT TO FIND WORK FOR THE AFFECTED EMPLOYEES IN OTHER
 NONAPPROPRIATED FUND FACILITIES.  AS PART OF THIS EFFORT, CRISWELL
 LEARNED OF THE POSSIBILITY OF NIGHT WORK FOR A COOK AND ASKED THE SNACK
 BAR COOK IF HE COULD WORK NIGHTS.  CRISWELL ALSO ASKED THE SNACK BAR
 MAINTENANCE WORKER IF HE WOULD BE WILLING TO WORK ELSEWHERE AND NOTED
 THAT HE WAS MAKING AN EFFORT TO RELOCATE HIM DURING THE CLOSURE.
 
    AFTER CONSIDERING THE CONTENT OF THE COMMUNICATIONS AND THE
 CIRCUMSTANCES SURROUNDING THEM, AS SUGGESTED BY THE FALLON DECISION,
 SUPRA, I CONCLUDE THAT A PREPONDERANCE OF THE EVIDENCE DOES NOT SUPPORT
 A VIOLATION OF THE STATUTE.  THE BOWLING CENTER MANAGER COULD REASONABLY
 HAVE CONCLUDED THAT SUCH COMMUNICATION WITH THE TWO EMPLOYEES WAS
 NECESSARY IN ORDER TO CARRY OUT MANAGEMENT'S AGREEMENT WITH THE UNION TO
 ATTEMPT TO FIND WORK FOR THE AFFECTED EMPLOYEES, ESPECIALLY SINCE
 MANAGEMENT WAS TO REPORT BACK TO THE UNION THE VERY NEXT DAY ON THE
 SUCCESS OF ITS EFFORTS.  THE CONVERSATIONS WERE CONDUCTED SOLELY TO
 DISSEMINATE AND GATHER NECESSARY PERSONAL INFORMATION TO THIS END.  THEY
 WERE NOT FORMAL DISCUSSIONS WITHIN THE SCOPE OF SECTION 7114(A)(2)(A).
 THE DISCUSSIONS DID NOT CONCERN ANY PERSONNEL POLICY OR PRACTICES OR
 CONDITIONS OF EMPLOYMENT AFFECTING EMPLOYEES IN THE UNIT GENERALLY.  SEE
 124 CONG.REC. H9634, (DAILY ED. SEPT. 13, 1978).  CRISWELL DID NOT
 SOLICIT OR ENTERTAIN COUNTERPROPOSALS TO CHANGE MANAGEMENT'S POSITION,
 NOR DID HE ATTEMPT TO NEGOTIATE OR DEAL WITH THE EMPLOYEES IN ORDER TO
 OBTAIN THEIR AGREEMENT TO MANAGEMENT'S POSITION, OR TO PUT PRESSURE ON
 THE UNION TO TAKE A CERTAIN COURSE OF ACTION.
 
    HAVING CONCLUDED THAT A PREPONDERANCE OF THE EVIDENCE DOES NOT
 ESTABLISH A VIOLATION BY RESPONDENT OF SECTIONS 7116(A)(1) AND (5), AS
 ALLEGED, IT IS RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER
 PURSUANT TO 5 U.S.C. 7118(A)(8) AND 5 C.F.R.  2423.29(C):
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 6-CA-144 BE, AND
 IT HEREBY IS, DISMISSED.
 
                         GARVIN LEE OLIVER
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JUNE 6, 1980
    WASHINGTON, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ A MOTION WAS MADE, AND GRANTED, AT THE HEARING TO CONFORM THE
 COMPLAINT TO THE PROOF, WITH REGARD TO DATES, AND TO INCLUDE AN ALLEGED
 SECOND BY-PASS OF THE UNION IN FEBRUARY 1979 WHEN RESPONDENT ALLEGEDLY
 DEALT DIRECTLY WITH EMPLOYEES CONCERNING WHETHER OR NOT THE EMPLOYEES
 WOULD BE INTERESTED IN OTHER JOBS WHILE THE SNACK BAR WAS CLOSED.  (TR.
 152-154).  THE ALLEGATION WAS FULLY LITIGATED AT THE HEARING.
 
    /2/ THE ACTUAL WORK PERFORMED INVOLVED THE INSTALLATION OF FIRE AND
 DRAFT STOPS IN THE FALSE CEILING ABOVE THE SNACK BAR AREA TO COMPLY WITH
 AIR FORCE MANUAL 88-15, "AIR FORCE DESIGN MANUAL CRITERIA AND STANDARDS
 FOR AIR FORCE CONSTRUCTION," DATED JANUARY 8, 1975, AND WITH NATIONAL
 FIRE CODES.  (JOINT EX. 1 & 14;  TR. 92).  WHILE THIS WORK WAS SUPPOSED
 TO HAVE INCLUDED "CORRECTION OF HOOD AND DUCT DEFICIENCIES" (JOINT EX.
 2A), THE HOOD WAS NOT LOWERED AND, AFTER CONSTRUCTION WAS COMPLETED, MR.
 CRISWELL INITIATED A REQUEST TO HAVE THIS ACCOMPLISHED, BUT IT WAS
 DISAPPROVED.  (RESPONDENT'S EX. 1;  TR. 76-78, 102).
 
    /3/ MR. PENA DENIED THAT HE WAS INFORMED BY CRISWELL OF THE IMPENDING
 CLOSURE OF THE SNACK BAR.  (TR. 32, 36-37).
 
    /4/ THE UNION FOLLOWED THE LONG-ESTABLISHED PROCEDURE PRESCRIBED
 UNDER EXECUTIVE ORDER 11491, AS AMENDED, AND ITS IMPLEMENTING
 REGULATIONS, AS THE NEW STATUTE HAD JUST BECOME EFFECTIVE ON JANUARY 11,
 1979, ONLY A FEW WEEKS BEFORE THE UNION'S ACTION ON JANUARY 30.
 
    /5/ MANAGEMENT WITNESS CRISWELL TESTIFIED, IN EFFECT, THAT THE
 UNDERSTANDING WAS THAT EVERYTHING WAS CANCELLED, BUT THE PROCEEDINGS TO
 CLOSE THE SNACK BAR COULD THEN RE-START AGAIN WITH WRITTEN NOTICE TO THE
 UNION.  NO TIME W