Department of the Air Force, Scott Air Force Base, Illinois (Respondent) and National Association of Government Employees, Local R7-23 (Complainant)

 



[ v05 p9 ]
05:0009(2)CA
The decision of the Authority follows:


 5 FLRA No. 2
 
 DEPARTMENT OF THE AIR FORCE,
 SCOTT AIR FORCE BASE, ILLINOIS
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R7-23
 Complainant
 
                                                Case Nos. 5-CA-115
                                                          5-CA-119
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
 ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD
 ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINTS, AND
 RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
 AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER.  THEREAFTER, THE RESPONDENT
 FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION
 AND ORDER.
 
    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
 SUBJECT CASE, INCLUDING THE RESPONDENT'S EXCEPTIONS, THE AUTHORITY
 HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS.
 
    IN ADOPTING THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS, THE AUTHORITY NOTES THAT THE DUTY TO NEGOTIATE IN GOOD
 FAITH UNDER THE STATUTE REQUIRES THAT A PARTY MEET ITS OBLIGATION TO
 NEGOTIATE PRIOR TO MAKING CHANGES IN ESTABLISHED CONDITIONS OF
 EMPLOYMENT, DURING THE TERM OF A COLLECTIVE BARGAINING AGREEMENT,
 ABSENT, AS HERE, A CLEAR AND UNMISTAKABLE WAIVER OF BARGAINING RIGHTS.
 IN THIS CONNECTION, SECTION 7114(A)(1) AND (B)(3) OF THE STATUTE
 PROVIDES, IN RELEVANT PART, AS FOLLOWS:
 
    SEC. 7114.  REPRESENTATION RIGHTS AND DUTIES
 
    (A)(1) 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 . . . .
 
   *          *          *          *
 
 
    (B) THE DUTY OF AN AGENCY AND AN EXCLUSIVE REPRESENTATIVE TO
 NEGOTIATE IN GOOD FAITH UNDER
 
    SUBSECTION (A) OF THIS SECTION SHALL INCLUDE THE OBLIGATION--
 
   *          *          *          *
 
 
    (3) TO MEET AT REASONABLE TIMES . . . AS FREQUENTLY AS MAY BE
 NECESSARY . . . (.)
 
    THE PHRASE, "COLLECTIVE BARGAINING," IN TURN, IS DEFINED IN SECTION
 7103(A)(12) OF THE STATUTE AS FOLLOWS:
 
    SEC. 7103.  DEFINITIONS;  APPLICATION
 
    (A) FOR THE PURPOSE OF THIS CHAPTER--
 
   *          *          *          *
 
 
    (12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
 OBLIGATION OF THE
 
    REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
 EMPLOYEES IN AN APPROPRIATE
 
    UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
 BARGAIN IN A GOOD-FAITH
 
    EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
 EMPLOYMENT AFFECTING SUCH
 
    EMPLOYEES AND TO EXECUTE, IF REQUESTED BY EITHER PARTY, A WRITTEN
 DOCUMENT INCORPORATING ANY
 
    COLLECTIVE BARGAINING AGREEMENT REACHED, BUT THE OBLIGATION REFERRED
 TO IN THIS PARAGRAPH DOES
 
    NOT COMPEL EITHER PARTY TO AGREE TO A PROPOSAL OR TO MAKE A
 CONCESSION(.)
 
    IT IS APPARENT FROM THE SPECIFIC LANGUAGE OF THE AFOREMENTIONED
 PROVISIONS OF THE STATUTE THAT A LABOR ORGANIZATION WHICH IS AN
 EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES IN AN APPROPRIATE UNIT IS
 ENTITLED TO NEGOTIATE COLLECTIVE BARGAINING AGREEMENTS FOR EMPLOYEES IT
 REPRESENTS AND THAT AN AGENCY AND EXCLUSIVE REPRESENTATIVE HAVE A MUTUAL
 OBLIGATION TO NEGOTIATE IN GOOD FAITH IN AN EFFORT TO REACH AGREEMENT
 WITH RESPECT TO CONDITIONS OF EMPLOYMENT AFFECTING EMPLOYEES IN AN
 APPROPRIATE UNIT.  IN THE AUTHORITY'S JUDGMENT, THE OBLIGATION TO
 NEGOTIATE WOULD BE RENDERED MEANINGLESS IF A PARTY WERE ABLE TO
 UNILATERALLY CHANGE ESTABLISHED CONDITIONS OF EMPLOYMENT DURING THE TERM
 OF AN EXISTING COLLECTIVE BARGAINING AGREEMENT, AS HERE, WITHOUT FIRST
 AFFORDING THE EXCLUSIVE REPRESENTATIVE NOTICE OF PROPOSED CHANGES AND AN
 OPPORTUNITY TO NEGOTIATE, UNLESS THE EXCLUSIVE REPRESENTATIVE HAD
 CLEARLY AND UNMISTAKABLY WAIVED ITS BARGAINING RIGHTS.
 
    SUCH CONCLUSION IS SUPPORTED BY THE LEGISLATIVE HISTORY OF SECTION
 7114(A)(1) OF THE STATUTE.  MORE SPECIFICALLY, SECTION 7114(A)(1)
 CONTAINS LANGUAGE SIMILAR TO THAT CONTAINED IN SECTION 7215(A)(1) OF THE
 BILL (S. 2640) REPORTED TO THE SENATE BY THE SENATE COMMITTEE ON
 GOVERNMENTAL AFFAIRS CONCERNING THE RIGHT OF AN EXCLUSIVE REPRESENTATIVE
 TO ACT FOR AND NEGOTIATE AGREEMENTS COVERING ALL EMPLOYEES IN A UNIT.
 /1/ AS EXPLAINED BY THE SENATE REPORT ACCOMPANYING THE BILL, /2/ SECTION
 7215(A) MANDATES THAT "(W)HERE AGENCY MANAGEMENT PROPOSES TO CHANGE
 ESTABLISHED PERSONNEL POLICIES, THE EXCLUSIVE REPRESENTATIVE MUST BE
 GIVEN NOTICE OF THE PROPOSED CHANGES AND AN OPPORTUNITY TO NEGOTIATE
 OVER SUCH PROPOSALS TO THE EXTENT THEY ARE NEGOTIABLE."
 
    APART FROM THE LITERAL LANGUAGE AND LEGISLATIVE HISTORY OF SECTION
 7114(A)(1) OF THE STATUTE, THE CONCLUSION THAT A PARTY MUST MEET ITS
 OBLIGATION TO NEGOTIATE PRIOR TO MAKING CHANGES IN ESTABLISHED
 CONDITIONS OF EMPLOYMENT IS SUPPORTED BY THE EXPRESS FINDINGS OF
 CONGRESS AS STATED IN SECTION 7101(A) OF THE STATUTE, NAMELY, THAT
 "LABOR ORGANIZATIONS AND COLLECTIVE BARGAINING IN THE STATUTE, NAMELY,
 THAT "LABOR ORGANIZATIONS AND COLLECTIVE BARGAINING IN THE CIVIL SERVICE
 ARE IN THE PUBLIC INTEREST." MOREOVER, THE REQUIREMENT FOR BARGAINING
 PRIOR TO CHANGE OF AN ESTABLISHED CONDITION OF EMPLOYMENT ENABLES BOTH
 PARTIES EFFECTIVELY TO FULFILL THEIR RESPECTIVE OBLIGATIONS UNDER
 SECTION 7114(B)(3) OF THE STATUTE "TO MEET AT REASONABLE TIMES . . . AS
 FREQUENTLY AS MAY BE NECESSARY" FOR GOOD FAITH NEGOTIATIONS ON
 CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES.
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
 AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF THE AIR FORCE, SCOTT AIR
 FORCE BASE, ILLINOIS, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) CHANGING THE WORK HOURS OF EMPLOYEES REPRESENTED EXCLUSIVELY BY
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-23, WITHOUT
 AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO BARGAIN, TO THE EXTENT
 CONSONANT WITH LAW AND REGULATION, ON THE DECISION TO EFFECTUATE SUCH A
 CHANGE.
 
    (B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO CARRY OUT THE
 PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE:
 
    (A) RESCIND THE MEMORANDUM OF MARCH 23, 1979, PERTAINING TO CHANGES
 IN WORKING HOURS AND RESTORE THE WORK HOURS SCHEDULE IN EFFECT PRIOR TO
 APRIL 15, 1979, IN THE 375TH CIVIL ENGINEERING SQUADRON.
 
    (B) NOTIFY THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
 R7-23, OF ANY INTENDED CHANGE IN THE WORK HOURS SCHEDULE OF UNIT
 EMPLOYEES, AND, UPON REQUEST, MEET AND NEGOTIATE IN GOOD FAITH, TO THE
 EXTENT CONSONANT WITH LAW AND REGULATION, ON THE DECISION TO EFFECTUATE
 SUCH A CHANGE.
 
    (C) POST AT ITS FACILITIES AT THE DEPARTMENT OF THE AIR FORCE, SCOTT
 AIR FORCE BASE, ILLINOIS, COPIES OF THE ATTACHED NOTICE MARKED
 "APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY.  UPON RECEIPT OF
 SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDER, HEADQUARTERS, 375TH
 AIR BASE GROUP (MAC) AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL
 BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
 CUSTOMARILY POSTED.  THE COMMANDER SHALL TAKE REASONABLE STEPS TO INSURE
 THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    (D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION 5, FEDERAL LABOR
 RELATIONS AUTHORITY, SUITE A-1359, 175 WEST JACKSON BOULEVARD, CHICAGO,
 ILLINOIS 60604, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER
 AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C., JANUARY 15, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                                 APPENDIX
 
        NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
 
           THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
 
          EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
 
            UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 
                                 RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT CHANGE THE WORK HOURS OF EMPLOYEES REPRESENTED
 EXCLUSIVELY BY NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
 R7-23, WITHOUT AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO BARGAIN,
 TO THE EXTENT CONSONANT WITH LAW AND REGULATION, ON THE DECISION TO
 EFFECTUATE SUCH A CHANGE.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
 OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL RESCIND THE MEMORANDUM OF MARCH 23, 1979, PERTAINING TO
 CHANGES IN WORKING HOURS IN THE 375TH CIVIL ENGINEERING SQUADRON AND
 RESTORE THE WORK HOURS SCHEDULE IN EFFECT PRIOR TO APRIL 15, 1979, IN
 THE 375TH CIVIL ENGINEERING SQUADRON.
 
    WE WILL NOTIFY THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
 LOCAL R7-23, OF ANY INTENDED CHANGE IN THE WORK HOURS SCHEDULE OF UNIT
 EMPLOYEES, AND, UPON REQUEST, MEET AND NEGOTIATE IN GOOD FAITH, TO THE
 EXTENT CONSONANT WITH LAW AND REGULATION, ON THE DECISION TO EFFECTUATE
 SUCH A CHANGE.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  BY:  (SIGNATURE)
 
    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 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
 SUITE A-1359, 175 WEST JACKSON BOULEVARD, CHICAGO, ILLINOIS 60604, AND
 WHOSE TELEPHONE NUMBER IS:  (312) 866-3468.
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    BRENDA M. ROBINSON, ESQUIRE
    SANDRA LEBOLD, ESQUIRE
    OFFICE OF THE GENERAL COUNSEL
    FEDERAL LABOR RELATIONS AUTHORITY
    REGION 5, 219 S. DEARBORN STREET
    ROOM 1638
    CHICAGO, ILLINOIS 60604
                          FOR THE GENERAL COUNSEL
 
    MAJOR JAMES E. DUMERER, ESQUIRE
    UNITED STATES AIR FORCE
    CENTRAL LABOR LAW OFFICE
    RANDOLPH AIR FORCE BASE, TEXAS 78148
    ROBERT B. KNOWLES, ESQUIRE
    UNITED STATES AIR FORCE
    375TH AIR BASE GROUP/JA
    SCOTT AIR FORCE BASE, ILLINOIS
                            FOR THE RESPONDENT
 
    RAYMOND MALLOY, ESQUIRE
    2139 WISCONSIN AVENUE, N.W.
    WASHINGTON, D.C.  20007
                          FOR THE CHARGING PARTY
 
    BEFORE:  GARVIN LEE OLIVER
                         ADMINISTRATIVE LAW JUDGE
 
                            CASE NOS. 5-CA-115
 
                                 5-CA-119
 
                      RECOMMENDED DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THESE CASES AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. SECTION 7101 ET SEQ., AS A
 RESULT OF A CONSOLIDATED UNFAIR LABOR PRACTICE COMPLAINT FILED ON
 SEPTEMBER 10, 1979 BY THE REGIONAL DIRECTOR, REGION 5, FEDERAL LABOR
 RELATIONS AUTHORITY, CHICAGO, ILLINOIS AGAINST THE DEPARTMENT OF THE AIR
 FORCE, SCOTT AIR FORCE BASE, ILLINOIS (RESPONDENT).
 
    THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED 5
 U.S.C. SECTION 7116(A)(5) BY UNILATERALLY CHANGING THE DUTY HOURS OF
 CERTAIN UNIT EMPLOYEES ON APRIL 15, 1979 AND MAY 21, 1979 AND BY
 REFUSING TO NEGOTIATE IN GOOD FAITH WITH THE NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES, LOCAL R7-23 (CHARGING PARTY OR UNION) AT VARIOUS
 TIMES CONCERNING MATTERS WITH RESPECT TO SUCH ALLEGED CHANGES IN
 CONDITIONS OF EMPLOYMENT.
 
    RESPONDENT DENIED THE ALLEGATIONS AND ASSERTED THAT IN MAKING CHANGES
 IN THE SCHEDULED WORK DAY IT COMPLIED WITH PROVISIONS OF THE PARTIES'
 LABOR MANAGEMENT AGREEMENT, AND, WITH RESPECT TO THE MAY 21, 1979
 CHANGE, THE UNION FAILED TO SUBMIT PROPOSALS UPON REQUEST.
 
    A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED AT SCOTT AIR
 FORCE BASE, ILLINOIS.  ALL PARTIES WERE REPRESENTED BY COUNSEL AND
 AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, AND
 EXAMINE AND CROSS-EXAMINE WITNESSES.  POST-HEARING BRIEFS HAVE BEEN
 RECEIVED FROM THE GENERAL COUNSEL, FLRA AND THE RESPONDENT AND DULY
 CONSIDERED.
 
    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.
 
                             FINDINGS OF FACT
 
                                BACKGROUND
 
    1.  LOCAL R7-23, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, AT ALL
 TIMES MATERIAL, WAS THE EXCLUSIVE REPRESENTATIVE OF UNITS OF FEDERAL
 EMPLOYEES AT SCOTT AIR FORCE BASE, ILLINOIS INCLUDING CIVILIAN EMPLOYEES
 IN THE 375TH CIVIL ENGINEERING SQUADRON, 375TH AIR BASE GROUP, 375TH
 AAW, AND HEADQUARTERS, MAC.  THE UNION AND RESPONDENT WERE PARTIES TO A
 LABOR-MANAGEMENT AGREEMENT WHICH WAS IN EFFECT FOR THREE YEARS DURING
 THE PERIOD SEPTEMBER 3, 1976 TO SEPTEMBER 2, 1979.
 
    2.  ARTICLE III, SECTIONS 1 AND 3 AND ARTICLE VII, SECTION 2 OF THE
 AGREEMENT PROVIDED AS FOLLOWS:
 
          ARTICLE III - MATTERS APPROPRIATE FOR CONSULTATION AND
 
                               NEGOTIATIONS
 
    SECTION 1:  IT IS AGREED AND UNDERSTOOD THAT MATTERS APPROPRIATE FOR
 CONSULTATION OR NEGOTIATION BETWEEN THE PARTIES ARE PERSONNEL POLICIES,
 PRACTICES AND PROCEDURES RELATED TO WORKING CONDITIONS WHICH ARE WITHIN
 THE DISCRETION OF THE EMPLOYER, INCLUDING BUT NOT LIMITED TO SUCH
 MATTERS AS SAFETY, TRAINING, LABOR-MANAGEMENT COOPERATION, EMPLOYEE
 SERVICES, METHODS OF ADJUSTING GRIEVANCES OR APPEALS, GRANTING OF LEAVE,
 PROMOTION PLANS, DEMOTION PRACTICES, APPLICATION OF PAY PRACTICES,
 REDUCTION-IN-FORCE PRACTICES AND HOURS OF WORK.
 
   *          *          *          *
 
 
    SECTION 3:  FOR THE PURPOSE OF THIS AGREEMENT THE TERMS
 "CONSULTATION" AND "NEGOTIATION" ARE DEFINED AS FOLLOWS:
 
    A.  CONSULTATION.  VERBAL OR WRITTEN DISCUSSION BETWEEN
 REPRESENTATIVES OF THE EMPLOYER AND REPRESENTATIVES OF THE UNION FOR THE
 PURPOSE OF OBTAINING THEIR VIEWS OR ADVISING THEM OF DESIRED ACTIONS
 WHICH AFFECT EMPLOYEES IN THE REPRESENTATION UNIT.
 
    B.  NEGOTIATION.  BARGAINING OF THE EMPLOYER AND THE UNION ON
 APPROPRIATE ISSUES RELATING TO TERMS OF EMPLOYMENT, WORKING CONDITIONS,
 AND PERSONNEL POLICIES AND PRACTICES WITH THE VIEW OF ARRIVING AT A
 MUTUALLY ACCEPTABLE AGREEMENT.
 
   *          *          *          *
 
 
              ARTICLE VII - HOURS OF WORK AND BASIC WORKWEEK
 
   *          *          *          *
 
 
    SECTION 2:  WHEN A CHANGE IN THE WORKDAYS OR WORKWEEKS CURRENTLY IN
 EFFECT IS CONTEMPLATED IN AN AREA, THE EMPLOYER AGREES TO NOTIFY THE
 EMPLOYEES CONCERNED AND THE UNION PRIOR TO MAKING SUCH CHANGE.  IF A
 CHANGE IS MADE, EXCEPT IN EMERGENCIES, SUCH CHANGE WILL BE ANNOUNCED IN
 WRITING AT LEAST FOURTEEN (14) DAYS IN ADVANCE OF THE DAY THE WORK
 STARTS, AND SUCH CHANGE NORMALLY WILL CONTINUE AT LEAST TWO PAY PERIODS.
 
    3.  DURING THE BARGAINING SESSIONS CONCERNING ARTICLE VII, SECTION 2,
 THERE WAS NEVER ANY INTENT VOICED BY THE UNION OR MANAGEMENT NEGOTIATING
 TEAMS THAT ARTICLE VII, SECTION 2 WOULD ESTABLISH A TIMETABLE FOR
 NEGOTIATION.  THE CONCERN VOICED BY THE UNION WAS THAT MANAGEMENT HAD
 SOMETIMES CHANGED THE DUTY HOURS ON SHORT NOTICE AND SUCH CHANGES WERE
 OF BRIEF DURATION.  THE PROVISION WAS NEGOTIATED IN LIGHT OF THE UNION'S
 CONTENTION THAT NOTICE WAS REQUIRED OF THE CHANGES AND THAT THERE SHOULD
 BE A MINIMUM DURATION FOR SUCH CHANGES.  (TR. 104-108.)
 
    4.  ON DECEMBER 1, 1977 A REVISION TO SCOTT AFB SUPPLEMENT 1 TO AIR
 FORCE REGULATION 40-610, "WEEKLY AND DAILY SCHEDULING OF WORK," WAS
 PROPOSED TO INCLUDE THE HOURS OF DUTY OF HEADQUARTERS, AFCS, A NEW
 COMPONENT AT SCOTT AFB.  A COPY OF THE PROPOSED SUPPLEMENT, SETTING
 FORTH THE HOURS OF DUTY FOR ALL SCOTT AFB PERSONNEL AND PROCEDURES FOR
 REQUESTING CHANGES IN SUCH TOURS OF DUTY, WAS FORWARDED TO THE UNION
 "FOR YOUR REVIEW AND COMMENT." THE UNION SUBMITTED A COMMENT CALLING FOR
 THE INSERTION OF THE WORD "THE" BEFORE "LOCAL UNION," WHICH CHANGE WAS
 ADOPTED IN THE FINAL COPY.  (GENERAL COUNSEL'S EXHIBIT 3).
 
    5.  AS SET FORTH IN THE REGULATION, NORMALLY A MANAGEMENT
 ORGANIZATION'S REQUEST FOR A CHANGE IN THE BASIC TOUR OF DUTY OR HOURS
 OF WORK WOULD BE SUBMITTED TO THE CIVILIAN PERSONNEL OFFICE FOR APPROVAL
 AND A COPY WOULD BE SENT TO THE UNION.  IF THE ORGANIZATION FAILED TO
 SEND A COPY TO THE UNION, THE CIVILIAN PERSONNEL OFFICE OFTEN DID, WITH
 THE NOTATION THAT THE REQUEST WAS FOR THE UNION'S "REVIEW AND COMMENTS."
 (RESPONDENT'S EXHIBIT 1, 2, 4).  USUALLY, NO PARTICULAR DEADLINE WAS
 PROVIDED FOR THE UNION'S RESPONSE, AND OFTEN THE UNION DID NOT RESPOND.
 (RESPONDENT'S EXHIBIT 2, 3, 4, 5, 6, 8).  THE UNION PRESIDENT, CARL L.
 DENTON, TESTIFIED THAT THE UNION MADE NO RESPONSE, OR REQUEST TO
 NEGOTIATE A PROPOSED CHANGE, IF THE EMPLOYEES WERE IN FAVOR OF THE
 CHANGE, OR IF THE REQUEST HAD BEEN INITIATED BY AN EMPLOYEE.
 
    6.  THERE WERE OCCASIONS WHEN MANAGEMENT FAILED TO GIVE THE UNION
 ADVANCE NOTICE OF PROPOSED CHANGES.  WHEN THIS OCCURRED, AND THE
 REQUESTED CHANGE WAS APPROVED ANYWAY, THE EFFECTIVE DATE OF THE CHANGE
 WAS NOT EXTENDED.  IN ALL CASES INVOLVING APPROVAL OF CHANGES IN DUTY
 HOURS, THE CIVILIAN PERSONNEL OFFICE NOTIFIED THE MANAGEMENT
 ORGANIZATION OF THE APPROVAL AND THAT COMPLIANCE WITH ARTICLE VII,
 SECTION 2 OF THE AGREEMENT, DEALING WITH THE ANNOUNCEMENT AND DURATION
 OF THE CHANGE, WAS REQUIRED.  THIS PROVISION WAS INTERPRETED BY
 MANAGEMENT TO REQUIRE AT LEAST 14 DAYS ADVANCE NOTICE TO THE EMPLOYEES
 AND THE UNION OF THE EFFECTIVE DATE OF SUCH CHANGE.
 
    7.  UNTIL CARL L. DENTON BECAME PRESIDENT OF THE UNION IN MAY 1978
 THERE WERE NEVER ANY SPECIFIC REQUESTS BY THE UNION TO NEGOTIATE CHANGES
 IN DUTY HOURS UNDER THE AGREEMENT.  IN THE SUMMER OF 1978, THE UNION
 REQUESTED TO NEGOTIATE A PROPOSED CHANGE IN DUTY HOURS FOR THE
 CONSOLIDATED AIRCRAFT MAINTENANCE SQUADRON AND IN NOVEMBER 1978 THE
 UNION REQUESTED TO NEGOTIATE PROPOSED CHANGES BY THE COMMISSARY
 INVOLVING THE WORK DAY AND A PAID WORK BREAK.  IN BOTH INCIDENTS FORMAL
 NEGOTIATIONS WERE NOT HELD, BUT THE ORIGINAL HOURS WERE RETAINED
 FOLLOWING RECEIPT OF THE UNION'S OBJECTIONS AND MANAGEMENT'S
 REEVALUATION.  IN SEPTEMBER 1978 THE UNION REQUESTED TO MEET WITH
 MANAGEMENT TO DISCUSS THE RATIONALE FOR A CHANGE IN THE DUTY HOURS FOR
 FIRE FIGHTERS.  THE PARTIES MET, BUT AFTER MANAGEMENT DID NOT ACCEPT THE
 UNION'S OBJECTIONS, THE UNION DID NOT PURSUE THE MATTER BECAUSE OF THE
 EXPRESSED DESIRE OF THE UNION MEMBERS.
 
                             CASE NO. 5-CA-115
 
    8.  ON MARCH 7, 1979, LT. COL. DON R. TIMMER SENT A MEMORANDUM TO THE
 COMMANDER AND CHIEF OF CIVILIAN PERSONNEL REQUESTING THAT THE LUNCH
 BREAK FOR EMPLOYEES IN THE 375TH CIVIL ENGINEERING SQUADRON BE INCREASED
 BY 15 MINUTES FROM 30 TO 45 MINUTES AND THAT THE WORKDAY BE ADJUSTED
 ACCORDINGLY TO START 15 MINUTES EARLIER FROM 0715 TO 1600 HOURS, INSTEAD
 OF 0730 TO 1600 HOURS.  THE STATED REASON FOR THE CHANGE WAS THE LOSS OF
 TIME ARISING FROM THE INABILITY OF PERSONNEL TO TRAVEL FROM THEIR WORK
 CENTER TO EATING FACILITIES IN 30 MINUTES.  THERE ARE APPROXIMATELY 300
 EMPLOYEES IN THE 375TH CIVIL ENGINEERING SQUADRON.
 
    9.  SENIOR AIRMAN DEBORAH F. KERR TYPED THE MARCH 7, 1979 LETTER AND
 SENT A COPY TO THE UNION PRESIDENT, CARL L. DENTON, BY THE USUAL MAIL
 METHOD;  HOWEVER THE FACT THAT A COPY WAS SENT TO THE UNION WAS NOT
 NOTED ON THE LETTER AND NEITHER MR. DENTON NOR LOREN DONOHO, THE UNION
 EXECUTIVE VICE PRESIDENT, RECEIVED IT.
 
    10.  ON MARCH 23, 1979 LT. COL. DON R. TIMMER, COMMANDER, 375TH CIVIL
 ENGINEERING SQUADRON, SCOTT AFB, ILLINOIS SENT A MEMORANDUM TO ALL
 BRANCH CHIEFS ANNOUNCING THAT EFFECTIVE APRIL 15, 1979 THE NORMAL DUTY
 HOURS FOR THE 375TH CIVIL ENGINEERING SQUADRON WOULD BE CHANGED FROM
 0730-1600 TO 0715-1600 HOURS WITH A SCHEDULED LUNCH BREAK FROM 1115 TO
 1200 HOURS.  (GEN. COUNSEL'S EX. 1A).  THE UNION WAS NOT SENT A COPY OF
 THIS LETTER.
 
    11.  ON OR ABOUT APRIL 2, 1979 SOME UNION MEMBERS BROUGHT THE NOTICE
 OF THE CHANGE AND THE MARCH 23, 1979 ANNOUNCEMENT TO THE ATTENTION OF
 THE UNION PRESIDENT, CARL L.  DENTON.  ON APRIL 2, 1979 MR. DENTON WROTE
 TO THE CIVILIAN PERSONNEL OFFICER REQUESTING CONFIRMATION OF WHETHER
 SUCH A CHANGE IN DUTY HOURS HAD BEEN PROPOSED OR ANNOUNCED AND, IF SO,
 THAT THE PARTIES ENTER INTO NEGOTIATION IN ACCORDANCE WITH ARTICLE III
 OF THE AGREEMENT.  (GEN. COUNSEL'S EX. 1A, 4/2/79).
 
    12.  ON APRIL 10, 1979 THE CIVILIAN PERSONNEL OFFICER ADVISED MR.
 DENTON BY MEMORANDUM THAT, AS STATED IN THE MARCH 23, 1979 LETTER, THE
 CHANGE IN DUTY HOURS FOR THE 375TH CIVIL ENGINEERING SQUADRON WOULD
 BECOME EFFECTIVE APRIL 15, 1979.  THE MEMORANDUM STATED THAT MANAGEMENT
 CONSIDERED THE CONTROLLING PROVISION OF THE NEGOTIATED AGREEMENT TO BE
 ARTICLE VII, SECTION 2, AND THAT, UNLESS THE UNION COULD PROVIDE
 EVIDENCE TO THE CONTRARY, MANAGEMENT CONSIDERED ITS CONTRACTUAL
 OBLIGATION FULFILLED.
 
    13.  ON APRIL 11, 1979 MR. DENTON CONTACTED RAYMOND RUSH, LABOR
 RELATIONS SPECIALIST, TO SEE IF THE CHANGE COULD NOT BE POSTPONED UNTIL
 THE PARTIES REACHED AGREEMENT ON THE CHANGE.  MR. RUSH RECOMMENDED TO
 CIVIL ENGINEERING SQUADRON THAT THEY POSTPONE MAKING THE CHANGE AS THERE
 WAS A QUESTION AS TO WHEN AND HOW THE UNION RECEIVED NOTICE OF THE
 CHANGE.  THE CIVIL ENGINEERING SQUADRON OFFICIALS REPLIED THAT THIS WAS
 NOT NECESSARY AS EVEN IF THE UNION FIRST RECEIVED NOTICE ON OR ABOUT
 APRIL 2, 1979, AS THE UNION ALLEGED, THIS WOULD STILL HAVE COMPLIED WITH
 THE REQUIRED 14 DAYS NOTICE PRIOR TO MAKING THE CHANGE.  ON APRIL 12 AND
 13, 1979 MR. DENTON WAS INFORMED THAT THE CIVILIAN PERSONNEL OFFICE
 COULD DO NOTHING FURTHER.
 
    14.  ON APRIL 13, 1979 MR. DENTON AND DANIEL W. HAMILTON, A UNION
 TRUSTEE AND SHOP STEWARD, MET WITH LT. COL. DON R. TIMMER, COMMANDER,
 375TH CIVIL ENGINEERING SQUADRON;  MR. SPRICK, DEPUTY CHIEF;  OTTO
 CLEMENTS, SUPERVISOR;  AND LT. COL. WATRING, COMMANDER-DESIGNATE.  MR.
 DENTON SHOWED LT. COL. TIMMER SEVERAL PAGES OF SIGNATURES OF EMPLOYEES
 WHO OBJECTED TO THE CHANGE AND EXPLAINED THEIR OBJECTIONS WHICH INCLUDED
 THE DISRUPTION OF SOME CAR POOLS.  MANAGEMENT OFFERED THE RATIONALE FOR
 THE CHANGE THAT THE MILITARY PERSONNEL IN THE SQUADRON COULD NOT OBTAIN
 THEIR MEAL AT THE MESS HALL IN 30 MINUTES.  HOWEVER, THE MEETING WAS
 CONCLUDED AFTER MANAGEMENT STATED THAT THEY WERE NOT THERE TO BARGAIN
 ABOUT THE CHANGE AND THEY NEED DO NO MORE THAN INFORM THE UNION OF THE
 CHANGE.
 
    15.  THE CHANGE IN HOURS AND LUNCH HOURS WENT INTO EFFECT ON APRIL
 15, 1979 AS ANNOUNCED.
 
                             CASE NO. 5-CA-119
 
    16.  DURING A CONTRACT NEGOTIATING SESSION ON MAY 1, 1979 MANAGEMENT
 BROUGHT UP A POTENTIAL TRAFFIC PROBLEM ON SCOTT DRIVE, A MAIN ROAD INTO
 THE BASE, AND STATED THAT MANAGEMENT WAS INTERESTED IN ALTERNATIVES FOR
 ALLEVIATING THE PROBLEM.  MR. DENTON INDICATED THAT THE UNION WAS ALL
 FOR EXPLORING ALTERNATIVES, AND THE UNION BROUGHT UP THE POSSIBILITY OF
 OPENING A BARRICADED ROAD AND GENERALLY REROUTING TRAFFIC.
 
    17.  THE NEXT DAY, MAY 2, 1979, THE UNION WAS INFORMED BOTH ORALLY
 AND BY MEMORANDUM THAT BECAUSE OF THE TRAFFIC PROBLEM CAUSED BY A
 CONSTRUCTION AND REPAIR PROJECT ON SCOTT DRIVE, MANAGEMENT HAD
 DETERMINED THAT A TEMPORARY ADJUSTMENT TO WORKING HOURS WAS NECESSARY
 IN
 THREE ORGANIZATIONS EFFECTIVE MAY 21, 1979 THROUGH SEPTEMBER 30, 1979.
 THE THREE ORGANIZATIONS AND THE CHANGES WERE AS FOLLOWS:
 
    HQ MAC FROM 0745-1630 TO 0800-1645
 
    375 AAW FROM 0730-1600 TO 0700-1530 EXCEPT 375 AAW/LGS
 
    375 ABG FROM 0730-1600 TO 0700-1530 EXCEPT 375 ABG/DE
 
    (GENERAL COUNSEL'S EX. 1C, 2 MAY 1979).
 
    18.  MR. DENTON ORALLY REQUESTED THAT THE PARTIES MEET AND CONFER ON
 THE CHANGE AND, ON MAY 9, 1979, WROTE THE CIVILIAN PERSONNEL OFFICER
 REQUESTING THAT THE CHANGE IN DUTY HOURS BE RETRACTED AND THAT
 MANAGEMENT MEET AND CONFER ON THE MATTER.  (GENERAL COUNSEL'S EX.  1C,
 MAY 9, 1979).
 
    19.  MANAGEMENT RESPONDED BY LETTER ON OR ABOUT MAY 12, 1979,
 ADVISING THAT ANY OBLIGATION TO THE UNION WAS FULFILLED WHEN NOTICE
 REGARDING THE CHANGE WAS PROVIDED TO THE UNION ON MAY 2, 1979.  HOWEVER,
 MANAGEMENT INDICATED THAT IF THE UNION HAD A BETTER SOLUTION, THAT ANY
 RECOMMENDATION BE SUBMITTED IN WRITING AT THE EARLIEST OPPORTUNITY.
 
    20.  THE TEMPORARY CHANGES ANNOUNCED ON MAY 2, 1979 WENT INTO EFFECT
 ON MAY 21, 1979 AND CONTINUED TO SEPTEMBER 1979, AT WHICH TIME THE
 CONSTRUCTION AND REPAIR PROJECT ENDED AND THE ORIGINAL HOURS WERE PLACED
 BACK INTO EFFECT.
 
    21.  MID-CONTRACT NEGOTIATIONS COMMENCED IN SEPTEMBER 1978.  THE
 UNION PROPOSED A CHANGE TO ARTICLE VII, SECTION 2, AS FOLLOWS:
 
    SECTION 2.  WHEN A CHANGE IN THE HOURS, DAYS, OR WEEKS CURRENTLY IN
 EFFECT, IS CONTEMPLATED
 
    IN AN AREA THE EMPLOYER AGREES TO MEET AND CONFER WITH THE UNION ON
 THE CHANGE.  IF THE CHANGE
 
    IS MADE, SUCH CHANGE WILL BE ANNOUNCED IN WRITING AND DELIVERED TO
 THE UNION AT LEAST FOURTEEN
 
    (14) DAYS IN ADVANCE OF THE DAY THE WORK STARTS, AND SUCH CHANGE
 NORMALLY WILL BE FOR A PERIOD
 
    OF AT LEAST TWO (2) PAY PERIODS (4 WEEKS) AND WILL BEGIN AND END WITH
 THE NORMAL PAY
 
    PERIOD.  THE NOTICE TO THE UNION WILL INCLUDE THE INCLUSIVE DATES OF
 THE CHANGE, THE WORK
 
    AREAS AND SITES INVOLVED, THE OFFICE SYMBOLS, THE NAMES OF THE
 EMPLOYEES EFFECTED AND THE
 
    CURRENT AND PROPOSED HOURS AND DAYS OF WORK.
 
    MANAGEMENT INTERPRETED THIS PROPOSAL AS A MOVE FROM BEING REQUIRED
 UNDER THE OLD CONTRACT TO MERELY GIVE NOTICE OF CHANGES IN THE WORKDAY
 TO BEING OBLIGATED TO MEET AND CONFER ON THE CHANGE.  THE UNION,
 HOWEVER, SAW THE PROVISION AS A NECESSARY CLARIFICATION OF THEIR
 PREVIOUSLY EXISTING RIGHTS UNDER THE CONTRACT.
 
    22.  SINCE THE EXPIRATION OF THE SEPTEMBER 3, 1976 CONTRACT AND
 PURSUANT TO THE LAW, THE PARTIES HAVE BARGAINED ON CHANGES IN THE
 REGULATION DEALING WITH THE WORKDAY AND WORKWEEK INVOLVING OTHER AREAS.
 (TR. 33-34).
 
               DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
 
    IN DENYING THAT IT HAS COMMITTED ANY UNFAIR LABOR PRACTICE HEREIN,
 RESPONDENT DOES NOT CONTEND THAT THE CHANGES IN WORKING HOURS WERE
 DETERMINATIVE OF THE NUMBERS, TYPES, OR GRADES OF EMPLOYEES OR POSITION
 AND, CONSEQUENTLY, NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY UNDER
 SECTION 7106(B)(1) OF THE STATUTE.  SEE NATIONAL TREASURY EMPLOYEES
 UNION, CHAPTER 66 AND INTERNAL REVENUE SERVICE, KANSAS CITY SERVICE
 CENTER, 1 FLRA 106(1979).  RATHER, RESPONDENT ASSERTS THAT IT COMPLIED
 WITH ARTICLE VII, SECTION 2 OF THE CONTRACT BY WHICH THE UNION WAIVED
 ITS RIGHT TO NEGOTIATE THE CHANGES.  IN RESPONDENT'S VIEW, THE
 REQUIREMENT TO NOTIFY THE UNION CAME UNDER THE AGREEMENT'S DEFINITION OF
 "CONSULTATION" RATHER THAN "NEGOTIATION."
 
    A WAIVER OF A RIGHT MUST BE CLEAR AND UNMISTAKABLE.  CF. NASA,
 KENNEDY SPACE CENTER, FLORIDA, A/SLMR NO. 223, 2 A/SLMR 566, 569(1972).
 
    NO CLEAR AND UNMISTAKABLE WAIVER IS EVIDENT FROM THE LANGUAGE OF THE
 AGREEMENT, THE NEGOTIATIONS LEADING TO THE AGREEMENT, OR THE PAST
 PRACTICES OF THE UNION AND MANAGEMENT IN IMPLEMENTING THE AGREEMENT.
 
    ARTICLE III, SECTION 1 OF THE AGREEMENT PROVIDES THAT "MATTERS
 APPROPRIATE FOR CONSULTATION OR NEGOTIATION BETWEEN THE PARTIES . . .
 INCLUD(ES) . . . HOURS OF WORK." ARTICLE VII, SECTION 2 PROVIDES, "WHEN
 A CHANGE IN WORKDAYS OR WORKWEEKS CURRENTLY IN EFFECT IS CONTEMPLATED IN
 AN AREA, THE EMPLOYER AGREES TO NOTIFY THE EMPLOYEES CONCERNED AND THE
 UNION PRIOR TO MAKING SUCH CHANGE.  IF A CHANGE IS MADE, EXCEPT IN
 EMERGENCIES, SUCH CHANGE WILL BE ANNOUNCED IN WRITING AT LEAST FOURTEEN
 DAYS IN ADVANCE OF THE DAY THE WORK STARTS, AND SUCH CHANGE NORMALLY
 WILL CONTINUE AT LEAST TWO PAY PERIODS." THERE IS NO LANGUAGE PRESENT IN
 ARTICLE VII, SECTION 2 BY ITSELF, OR CONSIDERED TOGETHER WITH THE
 DEFINITION OF "CONSULTATION" IN ARTICLE III, SECTION 3.A., WHICH
 DIRECTLY AND SPECIFICALLY RESERVES TO MANAGEMENT THE SOLE RIGHT TO
 EFFECT CHANGES IN DUTY HOURS FOLLOWING THE MERE NOTIFICATION TO THE
 UNION OF SUCH CHANGE.  COMPARE FEDERAL AVIATION ADMINISTRATION, A/SLMR
 992, 8 A/SLMR 227(1978) AND U.S. ARMY SCHOOL TRAINING CENTER, FORT
 GORDON, GEORGIA, A/SLMR NO. 148, 2 A/SLMR 201(1972).  THE PRECISE
 MEANING OF ARTICLE VI, SECTION 2 IS, AT BEST, AMBIGUOUS.  PRIMARILY, IT
 PROVIDES FOR NOTICE TO THE UNION AND EMPLOYEES OF A CONTEMPLATED CHANGE,
 AND, IF A CHANGE IS MADE, IT PROVIDES FOR THE TIMING OF THE NOTIFICATION
 GIVEN TO EMPLOYEES AND THE DURATION OF THE CHANGE.  THE LANGUAGE IS NOT
 INCONSISTENT WITH, AND DOES NOT SHOW CLEARLY AND UNMISTAKABLY THAT THE
 UNION WAIVED ITS RIGHT PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED,
 AND AS SUBSEQUENTLY GRANTED BY 5 U.S.C. SECTION 7103(A)(14) AND SECTION
 7114, TO THE OPPORTUNITY, UPON REQUEST, TO MEET WITH THE RESPONDENT AND
 NEGOTIATE IN A GOOD-FAITH EFFORT TO REACH AGREEMENT CONCERNING A
 PROPOSED CHANGE IN DUTY HOURS.  CF. UNITED STATES CUSTOMS SERVICE,
 REGION VI, HOUSTON, TEXAS, A/SLMR NO. 1161, 8 A/SLMR 1305(1978);
 DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, CHICAGO DISTRICT
 OFFICE, A/SLMR NO. 962, 8 A/SLMR 40(1978);  DEPARTMENT OF THE TREASURY,
 INTERNAL REVENUE SERVICE, SOUTHWEST REGION, DALLAS, TEXAS, A/SLMR NO.
 858, 7 A/SLMR 523(1977);  SOUTHEAST EXCHANGE REGION OF THE ARMY AND AIR
 FORCE EXCHANGE SERVICE, ROSEWOOD WAREHOUSE, COLUMBUS, SOUTH CAROLINA,
 A/SLMR NO. 656, 6 A/SLMR 238, AFFIRMED FLRC NO. 76A-85, 5 FLRC
 357(1977).
 
    THE BARGAINING HISTORY LEADING TO THE AGREEMENT DOES NOT SPELL OUT A
 CLEAR AND UNMISTAKABLE INTENTION BY THE UNION TO WAIVE ITS RIGHT TO
 BARGAIN OVER A CHANGE IN DUTY HOURS.  ON THE CONTRARY, THE TESTIMONY OF
 THE MANAGEMENT NEGOTIATOR, AS SET FORTH ABOVE, WAS THAT "THERE WAS NO
 INTENT OR VOICED INTENT AT THE TABLE THAT THIS NOTICE WAS FOR ANY
 PROVISION SUCH AS TO ESTABLISH A TIME FRAME FOR NEGOTIATION." (TR. 107).
  A WAIVER WILL NOT BE FOUND MERELY FROM THE FACT THAT AN AGREEMENT OMITS
 SPECIFIC REFERENCE TO A RIGHT, OR THAT A LABOR ORGANIZATION HAS FAILED
 IN NEGOTIATIONS TO OBTAIN PROTECTION WITH RESPECT TO CERTAIN OF ITS
 RIGHTS.  CF. NASA KENNEDY SPACE CENTER, FLORIDA, SUPRA, 2 A/SLMR AT 569.
 
    THE PAST PRACTICES OF THE PARTIES IN IMPLEMENTING THE AGREEMENT ARE,
 FROM THE RECORD AS A WHOLE, AMBIGUOUS, AND DO NOT DEMONSTRATE A CLEAR
 AND UNMISTAKABLE WAIVER.  A RIGHT TO BARGAIN NEED NOT BE EXERCISED AT
 EVERY OPPORTUNITY:  IT EXISTS UNLESS WAIVED BY THE PARTIES.  THE UNION'S
 FAILURE TO REQUEST BARGAINING ON SOME OTHER OCCASIONS OF CHANGES IN DUTY
 HOURS DID NOT CONSTITUTE A CLEAR AND UNMISTAKABLE WAIVER OF ITS RIGHT TO
 REQUEST BARGAINING IN CONNECTION WITH THESE CHANGES.  CF. DEPARTMENT OF
 THE TREASURY, INTERNAL REVENUE SERVICE, SOUTHWEST REGION, DALLAS, TEXAS,
 A/SLMR NO. 1144(1978).
 
    WITH RESPECT TO THE MAY 21, 1979 CHANGE IN WORKING HOURS, RESPONDENT
 ASSERTED THAT, ASSUMING ARGUENDO IT WAS REQUIRED TO NEGOTIATE WITH THE
 UNION, RESPONDENT HAD REQUESTED THE UNION ON MAY 12, 1979 TO SUBMIT
 RECOMMENDATIONS.  RESPONDENT CONTENDS THAT SINCE THE UNION DID NOT
 SUBMIT ANY PROPOSALS, IT WAIVED ANY RIGHT TO NEGOTIATE.
 
    THE RECORD REFLECTS THAT THE CHANGE IN DUTY HOURS WAS ANNOUNCED BY
 RESPONDENT ON MAY 2, 1979 AND THAT RESPONDENT REQUESTED THE UNION TO
 SUBMIT RECOMMENDATIONS ON MAY 12, 1979.  AT THE SAME TIME, HOWEVER,
 RESPONDENT ALSO STATED THAT IT HAD FULFILLED ITS OBLIGATION TO THE
 UNION;  THAT IT WAS NOT NECESSARY FOR THE PARTIES TO MEET AND CONFER ON
 THE MATTER;  AND THAT NO NOTICE OF RETRACTION OF THE CHANGE IN DUTY
 HOURS WOULD BE PUBLISHED.  GOOD FAITH BARGAINING CAN SCARCELY BE
 CONDUCTED WITHIN THE FRAMEWORK OF A STATED POSITION WHICH ASSERTS THAT
 AN EMPLOYER IS NOT OBLIGED TO NEGOTIATE.  DEPARTMENT OF THE TREASURY,
 INTERNAL REVENUE SERVICE, CHICAGO DISTRICT OFFICE, A/SLMR NO. 962,
 SUPRA, 8 A/SLMR AT 46.  NO OTHER PROPOSALS WERE ADVANCED BY THE
 RESPONDENT.  BY BASING ITS DEFENSE ON ITS INTERPRETATION OF THE
 AGREEMENT THE RESPONDENT ACTED AT ITS PERIL, AND THE FINDING HEREIN,
 THAT THE PARTIES' NEGOTIATED AGREEMENT DID NOT CONSTITUTE A CLEAR AND
 UNMISTAKABLE WAIVER, IN EFFECT, NULLIFIES THE RESPONDENT'S DEFENSE.
 THUS, UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE, THE MERE
 WILLINGNESS BY THE RESPONDENT TO RECEIVE THE UNION'S RECOMMENDATIONS
 AFTER THE ANNOUNCEMENT OF A FAIT ACCOMPLI DID NOT CURE ITS IMPROPER
 REFUSAL TO NEGOTIATE IN GOOD FAITH.  CF. EQUAL EMPLOYMENT OPPORTUNITY
 COMMISSION, A/SLMR NO. 1096, 8 A/SLMR 859, 860(1978).
 
    ACCORDINGLY, A PREPONDERANCE OF THE EVIDENCE ESTABLISHES THAT
 RESPONDENT VIOLATED 5 U.S.C. SECTION 7116(A)(5) BY UNILATERALLY CHANGING
 THE DUTY HOURS OF UNIT EMPLOYEES IN THE 375TH CIVIL ENGINEERING SQUADRON
 ON APRIL 15, 1979 AND BY UNILATERALLY CHANGING THE DUTY HOURS OF UNIT
 EMPLOYEES IN THE HQ MAC, 375 AAW AND 375 ABG ON MAY 21, 1979, WITHOUT
 AFFORDING THE UNION AN OPPORTUNITY TO BARGAIN CONCERNING SUCH CONDITIONS
 OF EMPLOYMENT, AND FURTHER VIOLATED 5 U.S.C. SECTION 7116(A)(5) BY
 REFUSING TO NEGOTIATE IN GOOD FAITH WITH THE UNION, UPON REQUEST,
 CONCERNING MATTERS WITH RESPECT TO SUCH CHANGES OF DUTY HOURS.  SUCH
 CONDUCT ALSO CONSTITUTES A DERIVATIVE VIOLATION OF 5 U.S.C. 7116(A)(1)
 IN THAT IT INTERFERES WITH, RESTRAINS, OR COERCES EMPLOYEES IN THE
 EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE.
 
                              RECOMMENDATION
 
    HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT PROHIBITED BY 5
 U.S.C. SECTION 7116(A)(1) AND (5), I RECOMMEND THAT THE AUTHORITY ADOPT
 THE FOLLOWING ORDER:
 
                                   ORDER
 
    PURSUANT TO 5 U.S.C. SECTION 7118(A)(7)(A) AND 5 C.F.R. SECTION
 2423.28(B)(1), THE AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF THE
 AIR FORCE, SCOTT AIR FORCE BASE, ILLINOIS, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) CHANGING THE WORK HOURS OF EMPLOYEES REPRESENTED EXCLUSIVELY BY
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-23, WITHOUT
 AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO BARGAIN, TO THE EXTENT
 CONSONANT WITH LAW AND REGULATION, ON THE DECISION TO EFFECTUATE SUCH A
 CHANGE.
 
    (B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO CARRY OUT THE
 PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTES:
 
    (A) RESCIND THE MEMORANDUM OF MARCH 23, 1979 PERTAINING TO CHANGES IN
 WORKING HOURS AND RESTORE THE WORK HOURS SCHEDULE IN EFFECT PRIOR TO
 APRIL 15, 1979 IN THE 375TH CIVIL ENGINEERING SQUADRON.
 
    (B) NOTIFY THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
 R7-23 OF ANY INTENDED CHANGE IN THE WORK HOURS SCHEDULE OF UNIT
 EMPLOYEES, AND, UPON REQUEST, MEET AND NEGOTIATE IN GOOD FAITH, TO THE
 EXTENT CONSONANT WITH LAW AND REGULATIONS ON THE DECISION TO EFFECTUATE
 SUCH A CHANGE.
 
    (C) POST AT ITS FACILITIES AT THE DEPARTMENT OF THE AIR FORCE, SCOTT
 AIR FORCE BASE, ILLINOIS, COPIES OF THE ATTACHED NOTICE MARKED
 "APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY.  UPON RECEIPT OF
 SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDER, HEADQUARTERS, 375TH
 AIR BASE GROUP (MAC) AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
 BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
 CUSTOMARILY POSTED.  THE COMMANDER SHALL TAKE REASONABLE STEPS TO INSURE
 THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    (D) PURSUANT TO 5 C.F.R. SECTION 2423.29, NOTIFY THE REGIONAL
 DIRECTOR, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO
 WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
                             GARVIN LEE OLIVER
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED DECEMBER 19, 1979
 
    WASHINGTON, D.C.
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
           PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 
            RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
 
             POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 
                     RELATIONS STATUTE (92 STAT. 1191)
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT CHANGE THE WORK HOURS OF EMPLOYEES REPRESENTED
 EXCLUSIVELY BY NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
 R7-23, WITHOUT AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO BARGAIN,
 TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE DECISION TO
 EFFECTUATE SUCH A CHANGE.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
 OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL RESCIND THE MEMORANDUM OF MARCH 23, 1979 PERTAINING TO
 CHANGES IN WORKING HOURS IN THE 375TH CIVIL ENGINEERING SQUADRON AND
 RESTORE THE WORK HOURS SCHEDULE IN EFFECT PRIOR TO APRIL 15, 1979 IN THE
 375TH CIVIL ENGINEERING SQUADRON.
 
    WE WILL NOTIFY THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
 LOCAL R7-23 OF ANY INTENDED CHANGE IN THE WORK HOURS SCHEDULE OF UNIT
 EMPLOYEES, AND, UPON REQUEST, MEET AND NEGOTIATE IN GOOD FAITH, TO THE
 EXTENT CONSONANT WITH LAW AND REGULATIONS ON THE DECISION TO EFFECTUATE
 SUCH A CHANGE.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  BY:  (SIGNATURE)
 
    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 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, 219 S. DEARBORN
 ST., DIRKEN FEDERAL BUILDING, ROOM 1638, CHICAGO, ILLINOIS 60604.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SECTION 7215(A)(1) OF THE SENATE BILL PROVIDED:
 
    SEC. 7215.  REPRESENTATION RIGHTS AND DUTIES
 
    (A) IF A LABOR ORGANIZATION HAS BEEN ACCORDED EXCLUSIVE RECOGNITION,
 SUCH ORGANIZATION
 
    SHALL BE--
 
    (1) THE EXCLUSIVE REPRESENTATIVE OF EMPLOYEES IN THE UNIT AND IS
 ENTITLED TO ACT FOR