National Bureau of Standards, Boulder Laboratories, Plant Division 283.00, Boulder, Colorado (Respondent) and American Federation of Government Employees, Local 2186, AFL-CIO (Charging Party)




[ v05 p823 ]
05:0823(107)CA
The decision of the Authority follows:


 5 FLRA No. 107
 
 NATIONAL BUREAU OF STANDARDS
 BOULDER LABORATORIES, PLANT DIVISION
 283.00, BOULDER, COLORADO
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2186, AFL-CIO
 Charging Party
 
                                            Case No. 7-CA-328
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
 ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD
 NOT ENGAGED IN THE UNFAIR LABOR PRACTICE AS ALLEGED IN THE COMPLAINT AND
 RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.  NO
 EXCEPTIONS WERE FILED TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
 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-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
 OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
 COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE
 JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
 CASE, AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE AUTHORITY
 HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 7-CA-328 BE AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., MAY 29, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
   
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    GAVIN LODGE, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    GORDON FIELDS, ESQUIRE
    JAMES REESE,
    FOR THE AGENCY
 
    BEFORE:  JOHN H. FENTON
   CHIEF ADMINISTRATIVE LAW JUDGE
 
                                 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., AS A RESULT OF
 AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON MARCH 18, 1980, BY THE
 REGIONAL DIRECTOR, REGION 7, FEDERAL LABOR RELATIONS AUTHORITY.  THE
 COMPLAINT ALLEGED THAT RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5) OF
 THE STATUTE BY REDUCING WEEKEND CALL-BACK OVERTIME WITHOUT NOTICE TO THE
 UNION, BY REFUSING TO NEGOTIATE ABOUT SUCH CHANGE, AND BY THEREAFTER
 TERMINATING ITS WEEKEND CALL-BACK OVERTIME PROCEDURE WITHOUT PROVIDING
 THE UNION NOTICE AND AN OPPORTUNITY TO BARGAIN.
 
    A HEARING WAS HELD ON JUNE 24, 1980, IN DENVER, COLORADO.  ALL
 PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE WITNESSES
 AND TO INTRODUCE EVIDENCE.  UPON THE ENTIRE RECORD, INCLUDING MY
 OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING
 FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    1.  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2186 HAS
 REPRESENTED THE PLANT DIVISION EMPLOYEES AT RESPONDENT'S BOULDER
 LABORATORIES SINCE 1970. IN DECEMBER, 1977, STAND-BY /1/ DUTY
 INSTRUCTIONS WERE ISSUED BY THE PLANT DIVISION CHIEF WHICH, IN RELEVANT
 RESPECT, PROVIDED THAT ALL QUALIFIED ELECTRICIANS AND MECHANICS WHO
 VOLUNTEERED FOR SUCH DUTY WOULD RECEIVE TWO HOURS OVERTIME FOR ANY WORK
 ON FRIDAY EVENING AND THREE HOURS ON SATURDAY AND SUNDAY.  SIMILAR
 PROVISION WAS MADE FOR THE DAY BEFORE, AND THE DAY OF, A HOLIDAY.  ANY
 EMPLOYEE PULLING SUCH A TOUR OF DUTY WAS REQUIRED TO REMAIN AVAILABLE
 (BY TELEPHONE OR RADIO) TO THE PLANT GUARDS, SO AS TO BE ABLE TO REPORT
 TO THE PLANT WITHIN 30 MINUTES, BETWEEN THE END OF THE SHIFT BEFORE THE
 WEEKEND OR HOLIDAY AND THE BEGINNING OF THE SHIFT ON MONDAY OR THE DAY
 FOLLOWING THE HOLIDAY.  IN ADDITION, HE WAS TO VISIT THE PLANT, INSPECT
 CERTAIN EQUIPMENT AND MAKE ANY NECESSARY REPAIRS ON EACH SUCH DAY.
 THUS, A HOLIDAY TOUR PROVIDED A MINIMUM OF FIVE HOURS OF OVERTIME, AND A
 WEEKEND PROVIDED EIGHT HOURS, REGARDLESS OF THE TIME ACTUALLY SPENT ON
 SITE, AND ACTUAL WORK IN EXCESS THEREOF WAS, OF COURSE, COMPENSATED.  IN
 TIME THE HOURS GUARANTEED THE MECHANICS ON SATURDAY, SUNDAY OR HOLIDAY
 WERE INCREASED TO FOUR HOURS BECAUSE MECHANICS HAD A MORE EXTENSIVE
 INSPECTION TOUR THAN DID ELECTRICIANS.
 
    2.  IN NOVEMBER OF 1978, ROBERT L. RODGER BECAME PLANT DIVISION
 CHIEF.  EARLY IN 1979 HE DETERMINED THAT THE ELECTRICIANS WERE NOT
 NEEDED FOR WEEKEND STAND-BY DUTY.  IN MARCH, GENERAL FOREMAN DONALD D.
 RICE ASSEMBLED THE AFFECTED EMPLOYEES AND INFORMED THEM OF THE DECISION
 TO TERMINATE THAT PART OF THE PROGRAM.  NO EFFORT WAS MADE TO GIVE THE
 UNION NOTICE OF THE CONTEMPLATED CHANGE, AND NO BARGAINING OCCURRED
 CONCERNING THE DECISION, ITS IMPLEMENTATION OR ITS IMPACT.  THE
 COMPLAINT DOES NOT ADDRESS THIS INCIDENT, WHICH IS BEYOND THE REACH OF
 THE UNFAIR LABOR PRACTICE CHARGE FILED IN NOVEMBER.  IT IS NEVERTHELESS
 BACKGROUND EVIDENCE INDICATIVE OF A DISPOSITION ON THE PART OF
 MANAGEMENT OFFICIALS TO IGNORE THE COLLECTIVE BARGAINING REPRESENTATIVE
 AND TO ANNOUNCE CHANGES IN WORKING CONDITIONS DIRECTLY TO EMPLOYEES.
 /2/
 
    3.  RODGER AT ABOUT THIS TIME BECAME CONCERNED ABOUT THE LAWFULNESS
 OF THE STAND-BY OVERTIME PROCEDURES.  ON JUNE 13, 1979, HE SENT A MEMO
 TO THE PERSONNEL CHIEF, ASKING THAT THE EXISTING INSTRUCTIONS BE
 REVIEWED AND A DETERMINATION MADE WHETHER THEY COMPLIED WITH GOVERNING
 REGULATIONS.  THE MATTER WAS RELAYED TO NATIONAL HEADQUARTERS IN
 GAITHERSBURG, MARYLAND.  IN LATE OCTOBER, RESPONDENT WAS INFORMED THAT
 IT WAS UNLAWFUL TO PAY IN EXCESS OF TWO HOURS OVERTIME UNLESS MORE THAN
 TWO HOURS WAS, IN FACT, DONE.  THUS, THE TWO-HOURS GUARANTEE, OR MINIMUM
 FOR SUCH CALL-BACK OR STAND-BY, AS PROVIDED IN THE CONTRACT, WAS LAWFUL.
  THE THREE HOURS PROVIDED FOR IN THE INSTRUCTIONS OF DECEMBER 1977, AND
 THE FOUR HOURS PROVIDED IN PRACTICE TO THE MECHANICS, HOWEVER, WERE
 ILLEGAL IN THE JUDGEMENT OF RESPONDENT.  AT THE HEARING COUNSEL FOR THE
 GENERAL COUNSEL ANNOUNCED THAT HE DID NOT INTEND TO CONTEST RESPONDENT'S
 DEFENSE THAT A COMPTROLLER GENERAL DECISION REQUIRED IT TO CONFORM TO
 THE LAW BY REDUCING OVERTIME PAYMENTS FOR THE WEEKEND AND HOLIDAY TOURS
 TO TWO HOURS UNLESS THE WORK PERFORMED IN FACT EXCEEDED TWO HOURS.
 NOTWITHSTANDING HIS UNWILLINGNESS TO AFFIRMATIVELY AGREE, OR TO
 STIPULATE THAT SUCH WAS THE CASE, I CONCLUDE THAT THE LEGALITY OF THE
 THREE/FOUR HOUR MINIMUM IS NOT AT ISSUE, AND THAT I NEED NOT DECIDE, BUT
 MAY ASSUME THAT RESPONDENT'S REDUCTION OF SUCH OVERTIME WAS MANDATED BY
 LAW.
 
    4.  RUMORS SPREAD AMONG THE WORK FORCE THAT THE LEGALITY OF SO-CALLED
 STAND-BY OR CALL-BACK MINIMUM PAYMENT IN EXCESS OF TWO HOURS WAS IN
 QUESTION AND THAT IT MIGHT BE ELIMINATED.  NEWLY ELECTED UNION PRESIDENT
 RALPH BRAFFORD AND VICE PRESIDENT JOEL BROWN VISITED AREA PERSONNEL
 OFFICER JOHN DOUGHTY ON NOVEMBER 2 TO DISCUSS SOME GRIEVANCES.  WHILE
 THERE THEY INQUIRED ABOUT THE ELIMINATION OF SUCH OVERTIME FOR THE
 ELECTRICIANS AND ABOUT THE PROSPECT OF ITS REDUCTION OR ELIMINATION FOR
 THE MECHANICS.  DOUGHTY TOLD THEM THAT RODGER BELIEVED IT WAS ILLEGAL
 AND SAID HE WOULD BE GLAD TO GO THROUGH THE REGULATIONS AND TO EXPLAIN
 THEM TO THE EMPLOYEES.  A MEETING WAS THEREAFTER SCHEDULED FOR NOVEMBER
 9, AT WHICH MANAGEMENT OFFICIALS PRESENTED THEIR VIEW TO THE
 RANK-AND-FILE AND THE UNION OFFICERS.  ALTHOUGH THE COMPLAINT DOES NOT
 ALLEGE THAT A VIOLATION OCCURRED ON THIS OCCASION, THE QUESTION WHETHER
 MANAGEMENT DELIBERATELY BY-PASSED THE UNION AND DEALT DIRECTLY WITH UNIT
 EMPLOYEES WAS VERY THOROUGHLY LITIGATED, IN AN APPARENT EFFORT TO
 PROVIDE FURTHER EVIDENCE OF A DISPOSITION SIMPLY TO ANNOUNCE CHANGES TO
 THE AFFECTED EMPLOYEES.  PRESIDENT BRAFFORD TESTIFIED, HOWEVER, THAT "WE
 WANTED TO GET THE PEOPLE THAT WERE INVOLVED IN THE STAND-BY GROUP
 ASSEMBLED . . . IT'S BETTER TO HAVE SOMEONE MAYBE COME AND EXPLAIN . . .
 MANAGEMENT'S SIDE OF IT, RATHER THAN FOR ME TO GO BACK AND TELL THEM
 SECONDHAND AND SO WE ARRANGED THIS MEETING TOGETHER."
 
    5.  ON NOVEMBER 9 ALL MECHANICAL AND ELECTRICAL GROUP EMPLOYEES WERE
 ASSEMBLED FOR APPROXIMATELY THE LAST HOUR OF THEIR SHIFT.  PRESENT FOR
 MANAGEMENT WERE PLANT DIVISION CHIEF RODGER, GENERAL FOREMAN RICE,
 PERSONNEL CHIEF JAMES SPENCER AND AREA PERSONNEL OFFICER JOHN DOUGHTY.
 RICE INTRODUCED DOUGHTY TO THE MEN, AND DOUGHTY THEN ADDRESSED THEM WITH
 RESPECT TO THE VARIOUS REGULATIONS GOVERNING OVERTIME PAYMENT FOR
 STAND-BY AND CALL-BACK WORK.  SUFFICE IT TO SAY THAT THE SUBJECT IS MOST
 CONFUSING, BUT THAT THE BOTTOM LINE WAS CLEAR:  THAT MANAGEMENT HAD TO
 CONFORM TO THE LAW, AND THAT THE LAW REQUIRED AN END TO THE PRACTICE OF
 PAYING MORE THAN TWO HOURS OVERTIME IF THE WORK PERFORMED TOOK NO MORE
 TIME THAN THAT.  RODGER ALSO SPOKE UP TO SAY THAT SUCH PAYMENTS WERE
 ILLEGAL, AND THAT HE WAS GOING TO STOP THEM.  UNION PRESIDENT BRAFFORD
 ACKNOWLEDGED THAT THEY WERE TOLD THE PRACTICE WAS ILLEGAL AND WOULD BE
 DROPPED.  THE MESSAGE WAS VERY RELUCTANTLY, IF NOT HOSTILELY RECEIVED,
 WITH MANY MEN SAYING THAT IT WAS NOT WORTH THEIR TIME TO REMAIN ON
 STAND-BY AND/OR TO MAKE VISITS TO THE FACILITY FOR THAT MUCH MONEY.
 ARGUMENTS APPARENTLY DEVELOPED, THOUGH THEIR RELEVANCE TO THIS TOPIC
 ESCAPES ME, AS TO WHETHER STAND-BY SHOULD BE ASSIGNED IN ROTATION OR BY
 SENIORITY.  THE MEETING RAPIDLY DESCENDED INTO THE CHAOS OF MANY SIDE
 CONVERSATIONS.  GIVEN THE BABEL OF VOICES, SPENCER SPOKE UP TO SAY THAT
 IT WAS EVIDENT THAT THERE WAS NO CONSENSUS, THAT MANAGEMENT COULD NOT
 RESPOND TO THEIR NEEDS UNTIL THEY IDENTIFIED THEM AND THE UNION CAME
 FORWARD WITH A PROPOSAL AS TO HOW IT WANTED THE OVERTIME ADMINISTERED.
 /3/ IT IS CLEAR THAT PRESIDENT BRAFFORD FELT THAT MANAGEMENT'S PROPOSAL
 VIOLATED THE CONTRACT BECAUSE IT DID NOT PROVIDE COMPENSATION FOR
 "STANDING BY." THUS HE RECALLS HAVING ASKED RODGER (WHETHER ON THIS
 OCCASION OR ANOTHER ONE) IF ANY EMPLOYEE COULD COME TO THE LABORATORY,
 DO HIS TOUR AND THEN GO FISHING.  RODGER'S ANSWER WAS THAT IT COULD NOT
 BE DONE.
 
    6.  ANOTHER MEETING, INITIATED BY UNION PRESIDENT BRAFFORD, OCCURRED
 IN RODGER'S OFFICE ON NOVEMBER 14.  FOREMAN RICE, UNION PRESIDENT
 BRAFFORD, VICE PRESIDENT BROWN AND STEWARD FOREMAN FORBER WERE PRESENT.
 MINUTES WERE KEPT BY RODGER (RES. EXH. 9).  WHILE RECOLLECTIONS ARE
 VAGUE AND MINUTES PREPARED BY RESPONDENT MAY BE SELF-SERVING, THERE IS
 NO INDICATION THAT THE MATTERS RECITED AS THE SUBJECTS OF DISCUSSION
 WERE NOT, IN FACT, THE AREA COVERED.  THUS I FIND THAT THE UNION WAS
 AGAIN INFORMED THAT OVERTIME WOULD BE ADMINISTERED IN ACCORDANCE WITH
 THE FPM AS EXPLAINED BY DOUGHTY, THAT THIS WAS CONSISTENT WITH ARTICLE 9
 OF THE CONTRACT AND THAT THE "SIDE AGREEMENT" (DECEMBER 1977
 INSTRUCTIONS) WAS NULL AND VOID.  MANAGEMENT ALSO SAID IT WOULD
 THEREFORE BE NECESSARY TO CONSIDER VOLUNTEER LISTINGS FOR WEEKEND WORK
 AND FOR WEEKDAY WORK, AS WELL AS THE USE OF ROTATIONAL OR SENIORITY
 LISTINGS.  MANAGEMENT OFFERED TO MAKE A WRITTEN PROPOSAL AFTER THE UNION
 DECLINED A PROPOSED EXCHANGE OF WRITTEN PROPOSALS.  A STANDARD OPERATING
 PROCEDURE FOR CALL-BACKS (G.C. EXH. 3) WAS PREPARED AND DELIVERED TO THE
 UNION THE FOLLOWING DAY.  IT APPEARS TO DIFFER FROM THE DECEMBER 1977
 INSTRUCTIONS IN TWO SIGNIFICANT RESPECTS:  IT REDUCED THE MINIMUM FROM
 THREE TO TWO HOURS AND IT SET SPECIFIC TIMES FOR ON-SITE TOURS TO TAKE
 PLACE.  ON THE VERY SAME DAY THE UNION SENT RODGER A MEMORANDUM (G.C.
 EXH. 5) IN WHICH IT TOOK THE POSITION THAT THE 1977 STAND-BY AGREEMENT,
 WHETHER OR NOT LEGAL, CONSTITUTED A SIDE AGREEMENT BETWEEN THE PARTIES,
 DEMANDED TO "NEGOTIATE THE ENTIRE MATTER," AND REQUESTED THAT THE STATUS
 QUO BE MAINTAINED UNTIL A NEW AGREEMENT WAS NEGOTIATED.  GENERAL COUNSEL
 EXHIBIT 5 WAS A RESPONSE TO THE PROPOSED PROCEDURE, ALTHOUGH MANAGEMENT
 WITNESSES CREDIBLY TESTIFIED THAT THEY BELIEVED THE TWO MEMOS CROSSED IN
 THE MAIL, AS THEY BORE THE SAME DATE AND THE UNION'S MEMO WAS
 UNRESPONSIVE, IN TITLE AND IN TEXT, TO THE PARTICULARS SET FORTH IN
 MANAGEMENT'S PROPOSAL.  /4/ CLEARLY THE UNION, IN DEMANDING MAINTENANCE
 OF THE STATUS QUO UNTIL THE ENTIRE MATTER WAS NEGOTIATED, INDICATED ITS
 REFUSAL TO ACCEPT THE REDUCTION IN HOURS REQUIRED BY LAW.  UNION
 PRESIDENT BRAFFORD ACKNOWLEDGED THAT THE UNION NEVER PROVIDED WRITTEN
 COMMENTS TO RODGER'S DRAFT OF NOVEMBER 15 AND, MORE IMPORTANTLY, THAT
 HIS MEMO OF THE SAME DATE EXPRESSED HIS DESIRE TO MAINTAIN THE OLD
 PROCEDURE FOR COMPENSABLE HOURS.  MANAGEMENT IN TURN, DID NOT REPLY IN
 WRITING TO THE UNION'S REQUEST.
 
    7.  ON MONDAY, NOVEMBER 19, RODGER MET WITH HIS SUPERVISORS AND
 INSTRUCTED THEM THAT THERE WOULD BE A TWO HOUR LIMIT TO CALL-BACK OR
 STAND-BY OVERTIME UNLESS WORK PERFORMED IN FACT EXCEEDED THAT.  ON
 NOVEMBER 21, THE DAY BEFORE THANKSGIVING, GENERAL FOREMAN RICE CALLED
 UNION VICE PRESIDENT BROWN, WHO HAPPENED TO HAVE THE STAND-BY TOUR FOR
 THE HOLIDAY, TO INFORM HIM THAT HE WOULD RECEIVE A MAXIMUM OF TWO HOURS
 OVERTIME FOR THE HOLIDAY, AND THAT HE SHOULD NOT ACCEPT THE TOUR IF HE
 EXPECTED MORE THAN THAT.  BROWN DECLINED THE JOB.  RICE ASKED BROWN NOT
 TO DISCUSS THE MATTER WITH OTHERS UNTIL HE HAD A CHANCE TO INFORM THE
 MEN ON FRIDAY.
 
    8.  ON FRIDAY, NOVEMBER 23, RICE CALLED A MEETING OF PLANT SERVICE
 EMPLOYEES.  HE INFORMED THEM THAT THE TWO HOUR OVERTIME LIMIT WAS GOING
 INTO EFFECT AND REQUESTED THAT THE MEN SIGN A ROSTER, INDICATING WHETHER
 THEY WERE WILLING TO VOLUNTEER, UNDER THE NEW PAY-TERMS, FOR WEEKEND AND
 HOLIDAY STAND-BY AS WELL AS WEEKDAY CALL-BACK.  ONLY TWO, BOB BIDUS AND
 WILLIAM CANTRELL, VOLUNTEERED.  BIDUS WORKED THE ENSUING WEEKEND AND
 THEN WITHDREW ON THE GROUND THAT THE PAY HARDLY COVERED HIS COSTS.
 CANTRELL CHANGED HIS MIND A FEW DAYS AFTER SIGNING ON.  AT THE MEETING,
 UNION PRESIDENT BRAFFORD SPOKE UP AS PRESIDENT, STATING THAT HE HAD IN
 WRITING REQUESTED NEGOTIATIONS, AND THAT RICE WAS CONSULTING WITH THE
 MEN INSTEAD OF GOING THROUGH THE UNION.  RICE RESPONDED THAT HE WAS
 MERELY CARRYING OUT ORDERS.
 
    9.  ON NOVEMBER 27 ANOTHER MEETING TOOK PLACE BETWEEN DIVISION CHIEF
 RODGER, PERSONNEL OFFICER DOUGHTY, UNION PRESIDENT BRAFFORD AND VICE
 PRESIDENT BROWN.  ACCORDING TO RODGER IT WAS HIS PURPOSE TO SEEK INPUT
 FROM THE UNION ON HIS DRAFT PROPOSAL, BUT THAT THE UNION OFFICIALS
 IMMEDIATELY ZEROED IN ON THE THREE HOURS.  IN RESPONSE TO THEIR DEMAND
 THAT HE NEGOTIATE THE THREE HOURS, HE REPLIED THAT HE COULD NOT, THAT HE
 HAD TO CONFORM TO THE FPM.  COUNSEL FOR THE GENERAL COUNSEL ASSERTS THAT
 RODGER FLATLY REFUSED TO NEGOTIATE "ANYTHING CONCERNING WEEKEND
 CALL-BACK COVERAGE." THE ONLY SUPPORT FOR THAT CLAIM IS BRAFFORD'S
 TESTIMONY THAT RODGER "WAS (AS ON NOVEMBER 14) TRYING TO MAKE HIS POINT
 ON NOT WANTING TO NEGOTIATE A STANDBY SITUATION." BRAFFORD DID NOT
 ELABORATE ON THIS SERIOUSLY IMPRECISE STATEMENT.  IT IS DIFFICULT TO
 BELIEVE THAT RODGER THUS ATTEMPTED TO FORECLOSE DISCUSSIONS OF THE
 MANNER IN WHICH THE SUBJECT OVERTIME SHOULD BE ADMINISTERED WHERE HE,
 RATHER THAN THE UNION, HAD INITIATED SUCH NEGOTIATIONS WITH HIS
 PROPOSALS ON NOVEMBER 14 AND 15.  THERE IS, FURTHERMORE, NO EVIDENCE
 THAT THE UNION SUGGESTED ANY CHANGE IN THE PROCEDURES BEING OBSERVED,
 EXCEPT RESTORATION OF THE FOUR HOURS PAYMENT FOR WEEKEND AND HOLIDAY
 TOURS.  BRAFFORD CONCEDED THAT RODGER HAD TO HAVE UNDERSTOOD THAT THE
 UNION NEGOTIATORS DESIRED TO MAINTAIN THE PAY IN EXCESS OF TWO HOURS.
 RODGER'S TESTIMONY THAT HE SOMEWHAT ANGRILY REFUSED TO ENGAGE IN ANY
 FURTHER DISCUSSION LOOKING TOWARD REINSTITUTION OF THE ILLEGAL
 COMPENSATION FOR FOUR HOURS THEREFORE IS CONSISTENT WITH THE LOGIC OF
 THE SITUATION AND NOT INCONSISTENT WITH BRAFFORD'S.  IT IS CREDITED.
 
    10.  ON DECEMBER 13, GENERAL FOREMAN RICE AGAIN SOLICITED VOLUNTEERS
 FOR STAND-BY DUTY.  AGAIN, TWO MEN SIGNED UP AND THEN QUICKLY RENEGED,
 LEAVING RESPONDENT WITHOUT EMPLOYEES WILLING TO ACCEPT SUCH DUTY ABSENT
 AN ORDER.  MANAGEMENT THUS FOUND ITSELF WITHOUT THE CAPACITY TO CARRY
 FORWARD ON A VOLUNTARY BASIS, AND IT ABANDONED THE PROGRAM.  THE GUARDS
 WERE INSTRUCTED TO CALL GENERAL FOREMAN RICE IN THE EVENT OF AN
 EMERGENCY. RICE THEN CALLED AN APPROPRIATE EMPLOYEE TO MAKE THE REPAIRS.
  THIS PROCEDURE WAS LATER MODIFIED TO PROVIDE THAT VARIOUS FIRST-LINE
 SUPERVISORS BE CALLED, DEPENDING UPON THE NATURE OF THE EMERGENCY,
 INSTEAD OF RICE.  THESE MATTERS WERE NOT THE SUBJECT OF NEGOTIATIONS.
 
                        DISCUSSION AND CONCLUSIONS
 
    THE ALLEGATION OF A UNILATERAL REDUCTION IN STAND-BY OVERTIME WAS
 DROPPED AT THE HEARING.  COUNSEL FOR THE GENERAL COUNSEL NOW CONTENDS
 THAT RESPONDENT VIOLATED SECTION 7116(A)(5) BY FAILING TO NEGOTIATE
 "IMPACT AND PROCEDURE" WITH RESPECT TO THAT REDUCTION, AND BY FAILING TO
 BARGAIN CONCERNING ITS DECISION TO ELIMINATE ENTIRELY SUCH OVERTIME.
 
    A BRIEF REVIEW OF THE SALIENT FACTS-- MANY UNDISPUTED-- DEMONSTRATES
 THE LACK OF SUPPORT FOR THE FIRST CONTENTION.  THUS MANAGEMENT TOLD THE
 UNION OF THE ILLEGALITY OF ITS PAYMENTS ON NOVEMBER 2.  AT THE UNION'S
 REQUEST IT ATTEMPTED TO EXPLAIN THIS COMPLICATED MATTER TO ALL AFFECTED
 EMPLOYEES.  IT TOLD THEM THAT REDUCTION FROM FOUR TO TWO HOURS WAS
 MANDATED BY LAW, AND IN RESPONSE TO THE VARIED AND CONFLICTING
 SUGGESTIONS BEING MADE BY EMPLOYEES IT TOLD THEM THAT THE UNION WOULD
 HAVE TO COME FORWARD WITH PROPOSALS CONCERNING ADMINISTRATION OF THE
 WEEKEND/HOLIDAY OVERTIME PROGRAM.  IT REPEATED THIS MESSAGE ON NOVEMBER
 14, UNSUCCESSFULLY SOLICITED WRITTEN PROPOSALS FROM THE UNION AND
 OFFERED ITS OWN WRITTEN PROPOSAL ON THE FOLLOWING DAY.  IT RECEIVED A
 WRITTEN DEMAND THAT THE ILLEGAL STATUS QUO BE MAINTAINED PENDING
 NEGOTIATION OF THE "ENTIRE MATTER," BUT IT WAS NEVER CONFRONTED WITH A
 SUGGESTION OR A DEMAND THAT ANY PARTICULAR MATTER BE NEGOTIATED, EXCEPT
 PRESERVATION OF THE UNLAWFUL OVERTIME.  IN THE SEVERAL WEEKS BETWEEN
 NOTICE OF THE INTENDED CHANGE AND ITS IMPLEMENTATION THE UNION NEVER
 REQUESTED BARGAINING ON IMPLEMENTATION AND IMPACT.  THE THREATENED LOSS
 OF INCOME WAS THE ONLY CONCERN IT ADDRESSED, AND THERE IS NO HINT OF ANY
 OTHER INTEREST EXCEPT FOR THE BROAD LANGUAGE OF ITS WRITTEN BARGAINING
 DEMAND.  THAT DEMAND WAS AN OBVIOUS PLOY DESIGNED TO DELAY RESPONDENT'S
 EFFORTS TO COMPLY WITH THE LAW, FOR IT ADDRESSED NONE OF THE PARTICULARS
 CONTAINED IN MANAGEMENT'S PROPOSAL, AND IT WAS SENT AT A TIME WHEN THE
 ONUS WAS ON THE UNION TO BE RESPONSIVE TO MANAGEMENT'S BARGAINING
 INITIATIVES.  HERE, RESPONDENT INVITED BARGAINING AND MADE POSITIVE
 PROPOSALS WHICH THE UNION IGNORED, ALTHOUGH THE LEGAL BURDEN WAS ON THE
 UNION TO COME FORWARD WITH ITS DEMANDS ON IMPACT AND IMPLEMENTATION
 BARGAINING IF IF WISHED TO REQUIRE MANAGEMENT TO BARGAIN.  AS NOTED, IT
 NEVER DID, ALTHOUGH IT HAD AMPLE NOTICE AND OPPORTUNITY AS WELL AS AN
 INVITATION TO DO SO.  THUS MANAGEMENT ATTEMPTED TO BARGAIN, ALTHOUGH
 UNDER NO LEGAL COMPULSION TO DO SO, AND WAS FRUSTRATED BY THE UNION,
 WHICH FOCUSED EXCLUSIVELY ON PRESERVATION OF A WORKING CONDITION WHICH
 MANAGEMENT COULD KEEP ONLY BY VIOLATING THE LAW.  I CONCLUDE THAT THIS
 ALLEGATION IS NOT SIMPLY UNSUPPORTED BY THE EVIDENCE, BUT THAT IT IS
 ODDS WITH THE PREPONDERANCE OF THE EVIDENCE, WHICH INDICATES THAT
 RESPONDENT IN FACT ATTEMPTED TO BARGAIN ALTHOUGH NOT REQUIRED TO DO SO.
 
    I FIND THE SECOND ALLEGATION EVEN MORE DIFFICULT TO UNDERSTAND.
 RESPONDENT SOUGHT VOLUNTEERS FOR STAND-BY AT THE REDUCED COMPENSATION
 RATES.  KEEPING A CURRENT ROSTER OF VOLUNTEERS WAS NO DEPARTURE FROM
 PAST PRACTICE OR THE SIDE AGREEMENT, AND IT WAS OBVIOUSLY NECESSARY IN
 VIEW OF THE FACT THAT THE MEN HAD REACTED VERY NEGATIVELY TO THE
 PROSPECT OF WORKING ON THOSE TERMS AND THE VICE PRESIDENT HAD REFUSED TO
 DO SO ON THANKSGIVING DAY.  IT WAS INCUMBENT UPON RESPONSIBLE MANAGERS
 TO DETERMINE WHETHER ANY OF THE EMPLOYEES WISHED TO STAY ON THE LIST OF
 VOLUNTEERS DESPITE A REDUCTION IN OVERTIME HOURS FROM TEN TO SIX OVER A
 WEEKEND.  BY DECEMBER 13 OR THEREABOUTS IT WAS ESTABLISHED THAT NONE OF
 THE EMPLOYEES DEEMED QUALIFIED TO PULL SUCH TOURS WAS WILLING TO DO SO
 VOLUNTARILY.  MANAGEMENT THEN HAD TWO ALTERNATIVES:  TO MANDATE
 PERFORMANCE OF HIGHLY UNPOPULAR WORK OR ABANDON THE PROGRAM AND DEAL
 ONLY WITH WHAT THE GUARDS REPORTED TO BE EMERGENCIES.  IT CHOSE THE
 LATTER COURSE.  THE MEN HAD VOTED "WITH THEIR FEET" NOT TO VOLUNTEER,
 AND MANAGEMENT ACCOMMODATED THEM, OR ACQUIESCED, AND OPTED FOR NOT
 COMPELLING STAND-BY DUTY AND ROUTINE INSPECTIONS.  HAVING TAKEN THE ONLY
 ALTERNATIVE TO REQUIRING THE TOURS, IT IS CHARGED WITH FAILING TO
 BARGAIN ABOUT THAT DECISION.  I CANNOT VIEW IT AS A DECISION CONCERNING
 WHICH MEANINGFUL BARGAINING COULD TAKE PLACE, IF IN FACT IT WAS A
 DECISION IN THE SENSE OF A CHOICE BETWEEN REAL, VIABLE ALTERNATIVES.
 THE EMPLOYEES UNANIMOUSLY REFUSED TO VOLUNTEER FOR THE DUTY, WHICH
 PROVIDED WHAT THEY CONSIDERED TO BE INADEQUATE COMPENSATION.  HAD
 MANAGEMENT DECIDED TO REQUIRE THE UNWILLING WORKERS TO PULL SUCH TOURS,
 IT WOULD HAVE HAD TO NEGOTIATE WITH THEIR REPRESENTATIVE TO EFFECT SUCH
 A CHANGE AGAINST A BACKDROP OF TOTAL REJECTION.  IT CHOSE TO AVOID THE
 RISKS AND DISRUPTIONS OF SUCH AN UNPALATABLE MOVE BY DROPPING A PROGRAM
 THAT NOBODY WANTED, ONCE ITS COMPENSATION WAS REDUCED TO LAWFUL LEVELS.
 HAD MANAGEMENT MODIFIED WEEKEND STAND-BY WITHOUT NOTICE TO THE UNION, I
 COULD UNDERSTAND THAT IT HAD VIOLATED AN OBLIGATION TO DISCUSS THE
 PROPOSED CHANGES IN GOOD FAITH, AND TO EXPLORE WITH THE UNION
 ALTERNATIVES THAT MIGHT BE AVAILABLE TO IT. I CANNOT EQUATE CHANGES OF
 THAT ORDER-- WHERE DISCRETION CAN BE EMPLOYED-- WITH ABANDONMENT OF AN
 ENTIRE PROGRAM WHICH IS VIRTUALLY, IF NOT IN FACT ALTOGETHER, FORCED
 UPON MANAGEMENT.  THE UNION WAS CLEARLY UNWILLING TO ACCEPT THE
 REQUIREMENT THAT ITS MEMBERS PERFORM WORK FOR WHICH THEY WOULD NOT
 VOLUNTEER.  THERE IS NO OTHER REASONABLE AND REALISTIC ASSESSMENT OF THE
 SITUATION.  BEING UNWILLING TO IMPOSE SUCH A REQUIREMENT, MANAGEMENT
 FOLLOWED THE ONLY OTHER PATH AVAILABLE TO IT.  HAVING NO VOLUNTEERS UPON
 WHOM TO CALL, IT DROPPED THE PROGRAM:  IT DECIDED NOT TO SEEK OUT
 NONEXISTENT VOLUNTEERS.  I CAN THINK OF NO VIABLE ALTERNATIVE, AND I CAN
 THINK OF NO SUBJECT OF USEFUL BARGAINING.  NONE HAS BEEN SUGGESTED.
 WHEN MANAGEMENT CEASED ASKING MEN WHO HAD INDICATED THEY WOULD NOT
 WILLINGLY ACCEPT SUCH ASSIGNMENTS, THE UNION DID NOT COME FORWARD WITH
 ANY REQUEST THAT THE "DECISION" TO ELIMINATE THE PROGRAM BE NEGOTIATED,
 OR THAT ITS IMPACT AND "IMPLEMENTATION" BE DISCUSSED.  PERHAPS IT DID
 NOT DO SO BECAUSE IF APPRECIATED THE FACT THAT ITS CONSTITUENCY
 "DECIDED" TO END THE PROGRAM BY VOTING TO PULL OUT OF IT.  PERHAPS IT
 DID NOT DO SO BECAUSE IT REALIZED THAT, REALISTICALLY, NO BARGAINING
 COULD ENSUE WHICH HELD OUT ANY PROMISE THAT THIS PROBLEM COULD BE
 RESOLVED.  AND COLLECTIVE BARGAINING WHICH CANNOT OFFER REAL SOLUTIONS
 TO REAL PROBLEMS WOULD SEEM TO BE A PURPOSELESS CHARADE.  THE HEART OF
 THE MATTER HERE WAS THAT THE LAW MANDATED THE LOSS OF SIX HOURS PAY
 (FROM A BASE OF 15) FOR EACH MAN WHO PULLED WEEKEND STAND-BY, A VERY
 SUBSTANTIAL AND A TOTALLY UNACCEPTABLE REDUCTION.  THIS IS ALL THE UNION
 EVER WANTED TO TALK ABOUT, AND ITS ONLY PURPOSE WAS TO PREVENT IT IF
 POSSIBLE, OR AT LEAST TO DELAY IT. AS INDICATED EARLIER, I AM AT A LOSS
 TO UNDERSTAND WHY THE UNION WOULD WISH TO CHANGE THE PROCEDURES-- OR THE
 METHODS-- OF PROGRAM ADMINISTRATION, WHEN ITS MEMBERSHIP WANTED NO PART
 OF THE PROGRAM UNLESS AND UNTIL THEY WERE GUARANTEED UNLAWFUL PAYMENT.
 ABSENT SUCH PAYMENT AND A CONSEQUENT WILLINGNESS TO WORK AT ALL, WHAT
 ASPECTS OF IMPACT AND IMPLEMENTATION COULD POSSIBLY INTEREST THEM AND
 THEREFORE THEIR COLLECTIVE BARGAINING AGENT?  IF THERE WERE ANY, THEY
 DID NOT SURFACE.
 
    IN ESSENCE, I CONCLUDE THAT THE "DECISION" TO ELIMINATE STAND-BY
 OVERTIME WAS IN FACT FORCED UPON MANAGEMENT BY THE UNION'S MEMBERS.  NOT
 HAVING EMPLOYED ITS DISCRETION TO CHOOSE AMONG VIABLE, WORKABLE,
 REALISTIC OPTIONS, THERE WAS NOTHING IT COULD USEFULLY DISCUSS WITH THE
 UNION.  IT COULD ONLY HAVE INFORMED THE UNION THAT THE VOLUNTARY PROGRAM
 HAD BEEN DROPPED FOR LACK OF VOLUNTEERS-- THAT, IN FACT, IT COULD NOT
 FUNCTION WITHOUT THEM.  THAT HARDLY SEEMS TO BE A MESSAGE WHICH WOULD
 CONVEY ANY INFORMATION TO A UNION WHICH WAS CERTAINLY AWARE OF, IF IT
 DID NOT IN FACT ENCOURAGE, THE UNIVERSAL REJECTION OF WEEKEND STAND-BY
 DUTY AT THE REDUCED RATES.  SURELY THE UNION UNDERSTOOD THAT YOU CANNOT
 RUN A VOLUNTARY PROGRAM WITHOUT VOLUNTEERS, AND IT COULD HARDLY HAVE
 COME AS A SURPRISE THAT MANAGEMENT CEASED ROTATING WORK AMONG
 VOLUNTEERS
 WHEN THERE WERE NONE.  ITS RESPONSE TO THESE REALITIES-- TO ASSIGN SUCH
 WORK ONLY IN APPARENT EMERGENCIES AND TO DISCONTINUE STAND-BY AND
 ROUTINE INSPECTIONS-- WAS IN FACT COMPELLED IN THE CIRCUMSTANCES.  IT IS
 NOT FOR ME TO SAY THAT IT SHOULD HAVE SERIOUSLY CONSIDERED OBLIGATORY
 OVERTIME AND THROWN THE MATTER OPEN TO NEGOTIATIONS WHEN IT THOUGHT SUCH
 A COURSE WOULD FURTHER SOUR THE LABOR RELATIONS CLIMATE.  NOR WOULD IT
 BE PROPER TO CONCLUDE THAT IT SHOULD HAVE FOREWARNED THE UNION OF THE
 UNAVOIDABLE CONSEQUENCES OF THE MEMBERSHIPS' UNWILLINGNESS TO VOLUNTEER,
 AND THUS HAVE AFFORDED IT AN OPPORTUNITY TO BARGAIN ABOUT IMPACT AND
 IMPLEMENTATION.  SUCH MATTERS AS THE METHOD FOR SELECTING THOSE WHO WILL
 DO EMERGENCY OVERTIME COULD HAVE BEEN NEGOTIATED.  HOWEVER, ADVANCE
 NOTICE OF THE "DECISION" WAS NOT POSSIBLE.  RESPONDENT COULD NOT
 POSTPONE ITS "IMPLEMENTATION" SO AS TO AFFORD THE UNION A REASONABLE
 OPPORTUNITY TO BARGAIN.  AGAIN, IT COULD NOT MAINTAIN A VOLUNTARY
 PROGRAM IN THE ABSENCE OF VOLUNTEERS.  THUS, IF THE UNION DESIRED TO
 NEGOTIATE A SYSTEM FOR ASSIGNING EMPLOYEES EMERGENCY OVERTIME, ITS
 REQUEST TO DO SO HAD TO FOLLOW TERMINATION OF THE PRACTICE OF CHOOSING
 VOLUNTEERS IN ROTATION.  INTERESTINGLY, NO DEMANDS WERE MADE.  FURTHER
 EVIDENCE, PERHAPS, THAT THE UNION'S ONLY GAME-PLAN WAS TO FORESTALL
 RESPONDENT'S COMPLIANCE WITH THE REQUIREMENTS OF FPM AS INTERPRETED BY
 THE COMPTROLLER GENERAL.
 
                                   ORDER
 
    HAVING CONCLUDED THAT THE EVIDENCE DOES NOT SUPPORT THE ALLEGATION
 THAT RESPONDENT FAILED AND REFUSED TO BARGAIN IN GOOD FAITH ABOUT THE
 IMPACT AND IMPLEMENTATION OF ITS DECISION TO REDUCE STAND-BY OVERTIME
 COMPENSATION, I RECOMMEND THAT THIS ALLEGED VIOLATION OF SECTION
 7116(A)(1) AND (5) BE DISMISSED.
 
    HAVING CONCLUDED THAT THE ELIMINATION OF ALL OVERTIME FOR WEEKEND
 STAND-BY DUTY DID NOT, IN THE CIRCUMSTANCES, GIVE RISE TO AN OBLIGATION
 TO BARGAIN, I RECOMMEND THAT THIS ALLEGED VIOLATION OF SECTION
 7116(A)(1) AND (5) BE DISMISSED.
 
                      JOHN H. FENTON
                      CHIEF ADMINISTRATIVE LAW JUDGE
 
    DATED:  DECEMBER 17, 1980
            WASHINGTON, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ CALL-BACK AND STAND-BY WERE USED INTERCHANGEABLY AND INCORRECTLY
 AT THE HEARING. FOR PURPOSES OF THIS DECISION IT DOES NOT MATTER.
 
    /2/ IT IS APPARENT THAT RICE THOUGHT HE PROVIDED NOTICE TO THE UNION
 OFFICIALS WHO WERE, PERFORCE, PRESENT AT THE MEETING IN THEIR CAPACITY
 OF EMPLOYEES.  THIS DOES NOT, OF COURSE, DETRACT FROM THE UNLAWFUL
 NATURE OF THE FAIT ACCOMPLI WHICH WAS PRESENTED TO THE UNION.
 
    /3/ AS INDICATED, I FIND IT DIF