U.S. Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio (Respondent) and American Federation of Government Employees, AFL-CIO (Charging Party)

 



[ v05 p288 ]
05:0288(39)CA
The decision of the Authority follows:


 5 FLRA No. 39
 
 U.S. AIR FORCE, AIR FORCE LOGISTICS
 COMMAND, WRIGHT-PATTERSON AIR
 FORCE BASE, OHIO
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 5-CA-331
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION AND ORDER IN THE
 ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED
 IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING
 THAT THE UNFAIR LABOR PRACTICE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
 THEREAFTER, THE GENERAL COUNSEL FILED EXCEPTIONS WITH RESPECT TO THE
 ADMINISTRATIVE LAW JUDGE'S DECISION AND ORDER.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MAMAGEMENT
 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 DECISION
 AND ORDER AND THE ENTIRE RECORD IN THE CASE, INCLUDING THE GENERAL
 COUNSEL'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW
 JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 5-CA-331 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., MARCH 9, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    LT. COLONEL FRANK E. WRIGHT
    FOR THE RESPONDENT
 
    CHARLES R. ROCK, ESQUIRE
    SHEILA REILLY, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    BEFORE:  BURTON S. STERNBURG
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C.
 SECTION 7101, ET SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER,
 FED. REG., VOL. 45, NO. 2, JANUARY 17, 1980, 5 C.F.R.  CHAPTER XIV, PART
 2411, ET SEQ.
 
    PURSUANT TO AN AMENDED CHARGE FIRST FILED ON DECEMBER 27, 1979, BY
 THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, (HEREINAFTER
 CALLED THE UNION), A COMPLAINT AND NOTICE OF HEARING WAS ISSUED ON
 FEBRUARY 29, 1980, BY THE REGIONAL DIRECTOR FOR REGION V, FEDERAL LABOR
 RELATIONS AUTHORITY, CHICAGO, ILLINOIS.  THE COMPLAINT ALLEGES THAT THE
 U.S. AIR FORCE, AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE
 BASE, OHIO, (HEREINAFTER CALLED THE RESPONDENT OR AIR FORCE), VIOLATED
 SECTIONS 7116(A)(1) AND (5) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (HEREINAFTER CALLED THE STATUTE OR ACT), BY VIRTUE OF
 ITS ACTIONS IN UNILATERALLY IMPLEMENTING CHANGES IN THE MANAGEMENT
 TECHNICAL INTERN PROGRAM WHILE NEGOTIATIONS ON SUCH PROGRAM WERE PENDING
 BEFORE THE FEDERAL SERVICE IMPASSES PANEL.
 
    A HEARING WAS HELD IN THE CAPTIONED MATTER ON JUNE 18, 1980, IN
 DAYTON, OHIO.  ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD,
 TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
 BEARING ON THE ISSUES INVOLVED HEREIN.  THE PARTIES SUBMITTED BRIEFS ON
 AUGUST 1, 1980, WHICH HAVE BEEN DULY CONSIDERED.
 
    UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
 CONCLUSIONS AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    THE UNION IS THE CERTIFIED EXCLUSIVE REPRESENTATIVE OF THE
 NON-SUPERVISORY EMPLOYEES WORKING AT A NUMBER OF RESPONDENT'S FACILITIES
 LOCATED THROUGHOUT THE UNITED STATES AND A PARTY TO A MASTER LABOR
 AGREEMENT COVERING THE EMPLOYEES AT SUCH FACILITIES.
 
    SINCE AUGUST OF 1972, RESPONDENT HAS HAD IN EFFECT A MANAGEMENT/CIVIL
 ENGINEER INTERN PROGRAM IDENTIFIED AS AFLCR-40-16, WHICH WAS DESIGNED TO
 TRAIN NEWLY HIRED EMPLOYEES AT VARIOUS FIELD INSTALLATIONS FOR
 SUBSEQUENT HIGHER LEVEL PROMOTIONS TO STAFF POSITIONS AT THE AIR FORCE
 LOGISTICS COMMAND HEADQUARTERS LOCATED AT WRIGHT-PATTERSON AIR FORCE
 BASE, OHIO.  ACCORDING TO AFLCR-40-16, THE CANDIDATES FOR THE INTERN
 PROGRAM WERE TO BE SELECTED FROM VARIOUS CIVIL SERVICE REGISTERS.  UPON
 BEING SELECTED, THE INTERNS WERE REQUIRED TO SIGN A "CERTIFICATE OF
 UNDERSTANDING" WHEREIN THEY ACKNOWLEDGE THAT FAILURE, UPON THE
 COMPLETION OF THE PROGRAM, TO ACCEPT REASSIGNMENT AND TRANSFER TO
 HEADQUARTERS, AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE
 BASE, OHIO, COULD RESULT IN DISCHARGE.  ADDITIONALLY, AFLCR-40-16
 PROVIDES FOR THE ESTABLISHMENT OF AN APPRAISAL PANEL, COMPOSED OF
 MANAGEMENT PERSONNEL, WHICH IS TO BE RESPONSIBLE FOR APPRAISING THE
 INTERNS PERIODICALLY AND ISSUING RECOMMENDATIONS CONCERNING PROMOTIONS
 TO GS-11 AND GS-12 LEVELS OF THE PROGRAM.
 
    ON APRIL 9, 1979, RESPONDENT MAILED TO THE UNION A COPY OF A
 "PROPOSED VERSION OF AFLCR 40-16" AND REQUESTED THE UNION'S COMMENTS
 THEREON BY MAY 9, 1980.  /1/ ON MAY 4, 1979, THE UNION ACKNOWLEDGED
 RECEIPT OF THE RESPONDENT'S APRIL 9TH LETTER AND DEMANDED BARGAINING ON
 THE NEWLY PROPOSED VERSION OF AFLCR 40-16.  ON MAY 17, 1979, THE UNION
 NOTIFIED THE RESPONDENT THAT MS. BETTY CARROLL AND MR. DONALD COOK,
 VICE-PRESIDENT AND PRESIDENT, RESPECTIVELY, OF AFGE LOCAL 1138 WERE
 AUTHORIZED TO REPRESENT THE UNION IN THE NEGOTIATIONS CONCERNING
 PROPOSED CHANGES IN AFLCR 40-16.  ON JUNE 4, 1979, THE UNION, UNDER THE
 SIGNATURE OF MR. COOK, SUBMITTED ITS PROPOSAL CONCERNING THE SUGGESTED
 CHANGES IN AFLCR 40-16.
 
    ON JUNE 20, 21 AND 22, AND JULY 3, 1979, REPRESENTATIVES OF THE
 RESPONDENT AND THE UNION MET AND DISCUSSED THEIR RESPECTIVE PROPOSALS
 CONCERNING AFLCR 40-16.  DURING THE COURSE OF THE AFOREMENTIONED
 MEETINGS MANY OF THE UNION'S PROPOSALS AND/OR SUGGESTIONS WERE ADOPTED
 BY THE RESPONDENT.  FOLLOWING THE JULY 3RD MEETING, THE PARTIES ALL
 AGREE THAT THEY WERE AT IMPASSE WITH RESPECT TO THREE OF THE UNION'S
 PROPOSALS, NAMELY, (1) UNION REPRESENTATION ON THE APPRAISAL PANEL, (2)
 DELETION OF THE REQUIREMENT FOR DISCHARGE IN THE EVENT AN INTERN
 REFUSED, AFTER THE COMPLETION OF THE PROGRAM, TO ACCEPT A TRANSFER TO
 WRIGHT-PATTERSON AIR FORCE BASE, AND (3) INCORPORATION OF AFLCR 40-16
 INTO THE MASTER LABOR AGREEMENT SO THAT ALLEGED VIOLATIONS THEREOF COULD
 BE MADE THE SUBJECT OF THE CONTRACTUAL GRIEVANCE PROCEDURE.
 
    ON AUGUST 1, 1979, THE PARTIES HELD SEPARATE MEETINGS WITH A FEDERAL
 MEDIATOR WHO UNSUCCESSFULLY ATTEMPTED TO BREAK THE IMPASSE ON THE THREE
 UNION PROPOSALS SET FORTH ABOVE.
 
    ON AUGUST 2, 1979, RESPONDENT SENT A LETTER TO THE UNION WHEREIN IT
 RECAPPED THE NEGOTIATIONS TO DATE AND INFORMED THE UNION AS FOLLOWS:
 
    THIS IS TO ADVISE YOU THAT WE ARE NOW AT IMPASSE ON THE THREE
 PROPOSALS YOU PRESENTED TO
 
    THE MEDIATOR AND THAT WE INTEND TO IMPLEMENT THE REVISED REGULATION
 ON 10 AUGUST 1979, WITHOUT
 
    INCORPORATION OF THE THREE PROPOSALS.  THE REVISED REGULATION WILL
 INCLUDE ALL OTHER UNION
 
    PROPOSALS WHICH WERE AGREED TO DURING OUR NEGOTIATIONS.
 
    ON AUGUST 10, 1979, RESPONDENT SENT A LETTER TO ALL ITS FIELD
 INSTALLATIONS WHEREIN IT RECAPPED ALL ITS NEGOTIATIONS WITH THE UNION,
 INCLUDING THE MEETING WITH THE FEDERAL MEDIATOR AND THE RESULTS THEREOF
 WITH RESPECT TO THE THREE IMPASSED ITEMS.  RESPONDENT ENCLOSED A DRAFT
 COPY OF THE NEWLY REVISED AFLCR 40-16 AND INFORMED THE FIELD
 INSTALLATIONS THAT THE DRAFT HAD BEEN SENT TO THE PRINTERS AND THAT
 PRIOR TO FILLING ANY VACANCIES IN THE AFLCR 40-16 PROGRAM THEY SHOULD
 REVIEW THE ADVANCED COPY.  THE LETTER WENT ON TO STATE THAT IT WOULD
 TAKE APPROXIMATELY 90-120 DAYS FOR THE DRAFT TO PROCEED THROUGH
 EDITORIAL AND FINAL PRINTING.
 
    ACCORDING TO THE UNCONTESTED TESTIMONY OF MR. DANIEL KOPPENHAFER,
 RESPONDENT'S LABOR RELATIONS SPECIALIST, THE LETTER OF AUGUST 10, 1979
 IN ACCORDANCE WITH USUAL PRACTICE, PUT THE NEWLY REVISED AFLCR 40-16
 IMMEDIATELY INTO EFFECT.  FURTHER, ACCORDING TO MR.  KOPPENHAFER,
 EDITORIAL AND PRINTING WERE A MINISTERIAL JOB TO BE ACCOMPLISHED BY THE
 DIVISION OF ADMINISTRATION.  MR. KOPPENHAFER FURTHER TESTIFIED THAT, IN
 ACCORDANCE WITH RESPONDENT'S USUAL PRACTICE, THE DRAFT WAS ASSIGNED THE
 DATE OF OCTOBER 26, 1979.  IN RESPONSE TO QUESTIONS CONCERNING THE
 OCTOBER 26, 1979, DATE, MR. KOPPENHAFER STATED THAT SUCH DATE WAS THE
 BEST GUESS OF RESPONDENT'S MANAGEMENT PERSONNEL AS TO WHEN THE FINAL
 DRAFT WOULD CLEAR EDITORIAL AND BE PRINTED.  ACCORDING TO MR.
 KOPPENHAFER'S TESTIMONY, THE ONLY SIGNIFICANCE OF THE DATE OF OCTOBER
 26, 1979, WAS FOR FUTURE REFERENCE, SUCH DATE WAS NOT THE EFFECTIVE DATE
 OF THE REGULATION.
 
    ON OCTOBER 16, 1979, THE UNION REQUESTED THE ASSISTANCE OF THE
 FEDERAL SERVICE IMPASSES PANEL REGARDING THE THREE IMPASSED ITEMS.  A
 COPY OF THE REQUEST FOR ASSISTANCE WAS SENT TO THE RESPONDENT ON THE
 SAME DATE.
 
    ON OCTOBER 31, 1979, THE FEDERAL SERVICE IMPASSES PANEL ACKNOWLEDGED
 RECEIPT OF THE UNION'S REQUEST FOR ASSISTANCE.  ON FEBRUARY 26, 1980,
 THE IMPASSES PANEL ASSERTED JURISDICTION OVER THE COMPOSITION OF THE
 RANKING PANEL BUT DECLINED TO ASSERT JURISDICTION OVER THE OTHER TWO
 IMPASSED ISSUES.
 
    SUBSEQUENTLY, ON MAY 7, 1980, AFTER RECEIVING POSITION PAPERS FROM
 THE PARTIES, THE IMPASSES PANEL DECIDED THAT THE UNION WAS ENTITLED TO
 BE ON THE RANKING PANEL.  ON MAY 12, 1980, RESPONDENT IMPLEMENTED THE
 IMPASSES PANEL'S DECISION WHICH CALLED FOR THE INCLUSION OF A UNION
 REPRESENTATIVE ON THE RANKING PANELS AT ITS RESPECTIVE INSTALLATIONS.
 
    THE RECORD DOES NOT INDICATE WHEN THE FINAL PRINTED VERSION OF AFLCR
 40-16, BEARING THE DATE OF OCTOBER 26, 1979, WAS CIRCULATED.  ACCORDING
 TO THE UNION, THE FIRST TIME IT BECAME AWARE THAT THE FINAL PRINTED
 VERSION OF AFLCR 40-16 HAD BEEN CIRCULATED WAS ON FEBRUARY 1980, WHEN A
 COPY WAS OBTAINED FROM THE RESPONDENT'S OFFICIAL LIBRARY.
 
    THE RECORD INDICATES THAT THE ONLY SIGNIFICANT DIFFERENCE BETWEEN THE
 FINAL PRINTED VERSION OF AFLCR 40-16 AND THE CORRECTED DRAFT SENT TO
 ADMINISTRATION FOR EDITORIAL AND PRINTING WAS THE DELETION OF THE WORD
 "WILL" SOME FIFTY-NINE TIMES.  /2/ SUCH DELETION DID NOT AFFECT THE
 REGULATION AND APPEARS TO HAVE BEEN SOLELY AN EDITORIAL CHANGE FOR
 PURPOSES OF CONFORMING THE LANGUAGE OF THE REGULATION TO USUAL AIR FORCE
 JARGON.
 
    THE RECORD FURTHER REVEALS THAT NO INTERN POSITIONS WERE FILLED UNDER
 AFLCR 40-16.  HOWEVER, RESPONDENT ACKNOWLEDGES THAT APPROXIMATELY THREE
 INTERN POSITIONS WERE FILLED UNDER ANOTHER PROGRAM, PRESIDENTIAL INTERN
 PROGRAM.  UTILIZATION OF THE LATTER PROGRAM IMPACTS UPON THE AFLCR 40-16
 PROGRAM IN THAT THE RESPONDENT APPEARS TO HAVE A CEILING ON THE TOTAL
 NUMBER OF INTERNS IT MAY HIRE FROM ALL INTERN PROGRAMS.
 
                        DISCUSSION AND CONCLUSIONS
 
    BOTH PARTIES ACKNOWLEDGE THAT, FOLLOWING IMPASSE, AN AGENCY OR
 ACTIVITY MAY UNDER CERTAIN CONDITIONS, IMPLEMENT IMPASSED PROPOSALS
 AFTER DUE NOTICE TO THE UNION INVOLVED.  DEPARTMENT OF TREASURY, IRS,
 CLEVELAND, OHIO, AND NTEU, A/SLMR NO. 972;  U.S. ARMY CORPS OF
 ENGINEERS, PHILADELPHIA DISTRICT AND AFGE LOCAL 902, A/SLMR NO. 673.
 
    THE PARTIES FURTHER ACKNOWLEDGE, AT LEAST DURING CONTRACT
 NEGOTIATIONS, THAT AN AGENCY OR ACTIVITY MAY NOT IMPLEMENT IMPASSED
 PROPOSALS WHILE RESOLUTION OF SUCH IMPASSED PROPOSALS IS PENDING BEFORE
 THE FEDERAL SERVICE IMPASSES PANEL (FSIP).  WARNER ROBINS AIR LOGISTICS
 CENTER, ROBINS AFB, GEORGIA AND AFGE LOCAL 987, A/SLMR 912.  RESPONDENT,
 HOWEVER, TAKES THE POSITION THAT THE HOLDING IN WARNER ROBINS IS NOT
 APPLICABLE TO MID-TERM BARGAINING IMPASSE SITUATIONS SINCE THE FSIP HAS
 GENERALLY DECLINED, AT LEAST UNDER THE EXECUTIVE ORDER, TO ASSUME
 JURISDICTION OVER MID-TERM BARGAINING DISPUTES.  RESPONDENT DOES NOTE
 HOWEVER, THAT THE DEFINITION OF "IMPASSE" UNDER THE CURRENT RULES AND
 REGULATIONS OF THE FSIP APPEAR TO BE BROADER THAN THOSE WHICH WERE IN
 EFFECT UNDER EXECUTIVE ORDER 11491, AS AMENDED.  THUS "IMPASSE" IS
 DEFINED IN THE CURRENT FSIP REGULATIONS AS "THAT POINT IN NEGOTIATIONS
 OF CONDITIONS OF EMPLOYMENT AT WHICH THE PARTIES ARE UNABLE TO REACH
 AGREEMENT." PREVIOUSLY, "IMPASSE" WAS DEFINED AS "THAT POINT IN
 NEGOTIATIONS OF A LABOR AGREEMENT AT WHICH THE PARTIES WERE UNABLE TO
 REACH AGREEMENT."
 
    IN LINE WITH THE FOREGOING, RESPONDENT TAKES THE POSITION THAT (1)
 MID-TERM BARGAINING IMPASSES ARE NOT WITHIN THE JURISDICTION OF THE
 FSIP, AND (2), IN ANY EVENT, NO VIOLATION OF THE STATUTE WAS COMMITTED
 SINCE THE CHANGE IN AFLCR 40-16 OCCURRED SUBSEQUENT TO DUE NOTICE TO THE
 UNION AND PRIOR TO THE UNION'S UNTIMELY PRESENTATION OF THE IMPASSED
 ITEMS TO THE FSIP.  FINALLY, RESPONDENT URGES DISMISSAL OF THE COMPLAINT
 ON THE GROUND THAT NO VACANCIES WERE FILLED UNDER THE REVISED REGULATION
 AND HENCE NO IMPLEMENTATION OF THE REGULATION OCCURRED.
 
    THE GENERAL COUNSEL, WHO SEES NO DISTINCTION BETWEEN CONTRACT
 BARGAINING AND MID-TERM BARGAINING, TAKES THE POSITION THAT AN AGENCY IS
 FORECLOSED FROM PUTTING INTO EFFECT IMPASSED ITEMS WHEN SUCH ITEMS ARE
 BEFORE THE FSIP.  IN LINE WITH THE FOREGOING, THE GENERAL COUNSEL,
 RELYING PRIMARILY ON THE OCTOBER 26, 1979, DATE APPEARING ON THE FINAL
 PRINTED VERSION OF AFLCR 40-16, URGES A SECTION 7116(A)(5) AND (1)
 FINDING SINCE THE CHANGE IN THE REGULATION OCCURRED WHILE THE IMPASSED
 ITEMS WERE BEFORE THE FSIP.  THE GENERAL COUNSEL IN HIS POST-HEARING
 BRIEF, FOR THE FIRST TIME, REQUESTS THE UNDERSIGNED ADMINISTRATIVE LAW
 JUDGE TO TAKE JUDICIAL NOTICE OF AFR 5-1, 1 JUNE 1978, STANDARD
 PUBLICATIONS, WHICH SETS FORTH THE MANNER IN WHICH AIR FORCE REGULATIONS
 ARE TO BE ISSUED.  ACCORDING TO THE GENERAL COUNSEL, RESPONDENT'S
 ACTIONS IN ALLEGEDLY MAKING THE DRAFT EFFECTIVE ON AUGUST 10, 1979,
 PRIOR TO ITS FINAL PRINTING AND PUBLICATION, VIOLATED SUCH REGULATION.
 
    A REVIEW OF THE ABOVE-STATED POSITIONS OF THE PARTIES MAKES IT CLEAR
 THAT RESOLUTION OF THE ALLEGATIONS UNDERLYING THE INSTANT COMPLAINT
 TURNS UPON THE TIMING OF THE CHANGES IN THE NEWLY REVISED REGULATION.
 BASED UPON THE RECORD AS A WHOLE, INCLUDING THE UNCONTRADICTED TESTIMONY
 OF MR. KOPPENHAFER AND RESPONDENT'S LETTERS OF AUGUST 2 AND 10, 1979, TO
 THE UNION AND FIELD INSTALLATIONS, RESPECTIVELY, I FIND THAT THE NEWLY
 REVISED REGULATION WAS EFFECTIVE ON AUGUST 10, 1979.  THUS, IT IS NOTED
 THAT THE AUGUST 10, 1979 LETTER TO THE FIELD INSTALLATIONS INSTRUCTED
 SUCH INSTALLATIONS TO REVIEW THE REVISED DRAFT REGULATION PRIOR TO
 FILLING ANY INTERN POSITIONS AND THE AUGUST 2, 1979 LETTER TO THE UNION
 ADVISED THE UNION THAT THE NEWLY REVISED REGULATION WAS TO BE EFFECTIVE
 ON AUGUST 10, 1979.  ADDITIONALLY, I FIND NO BASIS FOR DISCREDITING MR.
 KOPPENHAFER'S TESTIMONY THAT THE OCTOBER 26, 1979 DATE APPEARING ON THE
 FINAL PRINTED EDITION OF AFLCR 40-16 WAS NOTHING MORE THAN A REFERENCE
 DATE.
 
    I FURTHER FIND THAT RESPONDENT FULFILLED THE OBLIGATIONS IMPOSED UPON
 IT BY THE STATUTE WHEN IT GAVE THE UNION ON AUGUST 2, 1979, EIGHT DAYS
 NOTICE OF ITS INTENT TO PUT THE NEWLY REVISED REGULATION, ABSENT THE
 THREE IMPASSED UNION PROPOSALS, INTO EFFECT ON AUGUST 10, 1979.
 FINALLY, ABSENT ANY TIMELY NOTICE BY THE UNION OF INTENT TO REQUEST
 ASSISTANCE FROM FSIP, I FIND THAT THE RESPONDENT, BASED UPON THE
 APPLICABLE CASE PRECEDENT CITED SUPRA, DID NOT VIOLATE THE STATUTE BY
 MAKING A CHANGE IN AFLCR 40-16 ON AUGUST 10, 1979, SOME TWO AND ONE-HALF
 MONTHS PRIOR TO THE UNION'S BELATED ACTION IN REQUESTING THE ASSISTANCE
 OF THE FSIP.  /3/
 
    HAVING FOUND AND CONCLUDED THAT THE RESPONDENT DID NOT VIOLATE THE
 STATUTE AS ALLEGED, IT IS RECOMMENDED THAT THE FEDERAL LABOR RELATIONS
 AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5 C.F.R.2423.29(C).
 
                                   ORDER
 
    IT IS HEREBY RECOMMENDED THAT THE COMPLAINT IN CASE NO. 5-CA-331 BE,
 AND HEREBY IS, DISMISSED.
 
                         BURTON S. STERNBURG
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  AUGUST 15, 1980
    WASHINGTON, D.C.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE RECORD INDICATES THAT THE PRINCIPAL REASON FOR CHANGING AFLCR
 40-16 WAS THE RESPONDENT'S DESIRE TO MAKE THE INTERN PROGRAM AVAILABLE
 TO EMPLOYEES ALREADY ON THE PAYROLL WHO APPEARED TO BE DEAD-ENDED IN
 THEIR PRESENT POSITIONS.  THE EXISTING PROGRAM APPEARS TO HAVE BEEN
 RESTRICTED TO OUTSIDE APPLICANTS WHO WERE ON SPECIFIC CIVIL SERVICE
 REGISTERS.
 
    /2/ THE RECORD INDICATES THAT SOMETIME SUBSEQUENT TO AUGUST 2, 1979,
 THE UNION SUBMITTED A MEMORANDUM WHEREIN IT NOTED CERTAIN TYPOGRAPHICAL
 ERRORS IN THE DRAFT.  IT APPEARS THAT RESPONDENT THEREAFTER NOTIFIED ITS
 EDITORIAL DEPARTMENT OF THE ERRORS IN THE DRAFT AND THAT APPROPRIATE
 CORRECTIONS WERE MADE.
 
    /3/ IF, AS ALLEGED BY THE GENERAL COUNSEL FOR THE FIRST TIME IN HIS
 POST-HEARING BRIEF, RESPONDENT'S ACTION IN INSTITUTING A CHANGE IN AFLCR
 40-16 THROUGH THE MEDIUM OF A DRAFT WAS VIOLATIVE OF AIR FORCE
 REGULATION 5-1, STANDARD PUBLICATIONS, I FIND SUCH PROCEDURAL ERROR,
 STANDING ALONE, TO BE AN INSUFFICIENT BASIS FOR ALTERING THE FINDINGS
 AND CONCLUSIONS SET FORTH ABOVE.  TO THE EXTENT THERE WAS SUCH
 VIOLATION, THE UNION IS OF COURSE FREE TO SEEK AN ALTERNATE REMEDY IN AN
 APPROPRIATE FORUM.