Department of the Air Force, U.S. Air Force Academy (Respondent) and American Federation of Government Employees, Local 1867, AFL-CIO (Charging Party) 

 



[ v06 p548 ]
06:0548(100)CA
The decision of the Authority follows:


 6 FLRA No. 100
 
 DEPARTMENT OF THE AIR FORCE
 U.S. AIR FORCE ACADEMY
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1867
 Charging Party
 
                                            Case No. 7-CA-459
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION AND ORDER IN THE
 ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN
 THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING
 THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION
 AS SET FORTH IN THE ATTACHED JUDGE'S DECISION AND ORDER.  THEREAFTER THE
 RESPONDENT FILED EXCEPTIONS WITH RESPECT TO THE 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-MANAGEMENT
 RELATIONS STATUTE (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 DECISION AND ORDER AND THE ENTIRE RECORD IN THE CASE, THE
 AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS.
 
    IN ADOPTING THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS,
 THE AUTHORITY AGREES THAT A WAIVER WILL BE FOUND ONLY IF IT CAN BE SHOWN
 THAT THE EXCLUSIVE REPRESENTATIVE CLEARLY AND UNMISTAKABLY WAIVED ITS
 RIGHT TO NEGOTIATE.  /1/ THE AUTHORITY FURTHER AGREES THAT NO SUCH CLEAR
 AND UNMISTAKABLE WAIVER IS PRESENT IN THIS CASE.
 
    MOREOVER, THE AUTHORITY NOTES THAT THE JUDGE FOUND THAT THE DISPUTED
 "STAY OF ACTION" PROPOSAL WAS, "IN ALL MATERIAL RESPECTS, IDENTICAL TO
 THE LANGUAGE OF THE UNION'S PROPOSAL" IN AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE
 SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW JERSEY, 2 FLRA NO.
 16(1979), ENFORCED SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR
 RELATIONS AUTHORITY, . . . F.2D . . . (D.C.  CIR. NO. 80-1119, JULY 2,
 1981).  HE THEN REASONED THAT " . . . AN UNFAIR LABOR PRACTICE WILL BE
 FOUND EVEN WHERE THE PARTIES INVOLVED IN THE PRIOR NEGOTIABILITY CASE
 WERE DIFFERENT AS LONG AS "'NO MEANINGFUL DIFFERENCES'" CAN BE FOUND
 BETWEEN THE TWO PROPOSALS." /2/ THE AUTHORITY AGREES THAT ONCE A
 PROPOSAL HAS BEEN DETERMINED TO BE NEGOTIABLE THROUGH THE PROCESSES OF
 THE STATUTE, IT IS A VIOLATION OF SECTION 7116(A)(5) OF THE STATUTE FOR
 ANY AGENCY TO REFUSE TO NEGOTIATE IN GOOD FAITH ON THAT PROPOSAL, OR ON
 A PROPOSAL WITHOUT MATERIAL DIFFERENCES, IN SIMILAR CIRCUMSTANCES.  THAT
 IS, WHERE THE NEGOTIABILITY OF A PROPOSAL IS ESTABLISHED BY AUTHORITY
 PRECEDENT, AS IN THE PRESENT CASE, IT IS A REFUSAL TO BARGAIN IN GOOD
 FAITH TO MAINTAIN THAT THE PROPOSAL IS NON-NEGOTIABLE.  SUCH A REFUSAL
 TO BARGAIN IS VIOLATIVE OF SECTION 7116(A)(5) AND (1) OF THE STATUTE.
 
    APPLYING THESE PRINCIPLES TO THE INSTANT CASE, THE AUTHORITY FINDS
 THAT THE LANGUAGE OF THE PROPOSAL IS ALMOST IDENTICAL TO THE LANGUAGE OF
 THE PROPOSAL IN THE DIX-MCGUIRE CASE AND THE AGENCY PROFFERS NO SHOWING
 THAT THE CIRCUMSTANCES ARE SUCH AS TO WARRANT A DEPARTURE FROM THE
 NEGOTIABILITY DETERMINATION ON THE "STAY OF ACTION" PROPOSAL IN THE
 DIX-MCGUIRE CASE.  HENCE, THE RESPONDENT'S REFUSAL TO NEGOTIATE ON THE
 PROPOSAL CONSTITUTES A VIOLATION OF SECTION 7116(A)(5) AND (1) OF THE
 STATUTE.
 
                                   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, U.S. AIR
 FORCE ACADEMY, COLORADO, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) DECLARING NONNEGOTIABLE A PROPOSAL MADE IN THE COURSE OF
 NEGOTIATIONS BY THE AMERICAN
 
    FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1867, WHICH
 INVOLVES A MATTER PREVIOUSLY
 
    DETERMINED TO BE NEGOTIABLE BY THE FEDERAL LABOR RELATIONS AUTHORITY.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES
 
    IN THE EXERCISE OF 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) UPON REQUEST OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 1867,
    NEGOTIATE, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS,
 CONCERNING THE PROPOSAL TO STAY
    THE DISCIPLINARY SUSPENSION OR REMOVAL OF AN EMPLOYEE UNTIL THE
 EMPLOYEE HAS EXHAUSTED
    APPROPRIATE REVIEW PROVISIONS IN THE COLLECTIVE BARGAINING AGREEMENT.
 
    (B) POST AT THE FACILITIES OF THE DEPARTMENT OF THE AIR FORCE, U.S.
 AIR FORCE ACADEMY,
    COLORADO, COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY
 THE FEDERAL LABOR
    RELATIONS AUTHORITY.  UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED
 BY THE SUPERINTENDENT OF
 
    THE USAF ACADEMY, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
 CONSECUTIVE DAYS
    THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING BULLETIN BOARDS AND ALL
 OTHER PLACES WHERE
    NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.  THE SUPERINTENDENT
 SHALL TAKE REASONABLE STEPS
   TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY
 ANY OTHER MATERIAL.
 
    (C) PURSUANT TO SECTION 2423.30 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND
    REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION VII, FEDERAL
 LABOR RELATIONS AUTHORITY, SUITE 680, CITY CENTER SQUARE, 1100 MAIN 
 STREET, KANSAS CITY,MISSOURI 64105, IN WRITING WITHIN 30 30 DAYS FROM
 THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C;, SEPTEMBER 4, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
                          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 DECLARE NONNEGOTIABLE ANY PROPOSAL MADE IN THE COURSE OF
 NEGOTIATIONS BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 1867, WHICH INVOLVES A MATTER PREVIOUSLY DETERMINED TO BE
 NEGOTIABLE BY THE FEDERAL LABOR RELATIONS AUTHORITY.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE;
 
    WE WILL, UPON REQUEST OF THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1867, NEGOTIATE TO THE EXTENT CONSONANT WITH
 LAW AND REGULATIONS REGARDING THE PROPOSAL TO STAY THE DISCIPLINARY
 SUSPENSION OR REMOVAL OF AN EMPLOYEE UNTIL THE EMPLOYEE HAS EXHAUSTED
 APPROPRIATE REVIEW PROVISIONS IN THE COLLECTIVE BARGAINING AGREEMENT.
 
                           (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 QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH
 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY THE REGIONAL
 DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS AND
 TELEPHONE NUMBER ARE:  SUITE 680, CITY CENTER SQUARE, 1100 MAIN STREET,
 KANSAS CITY, MISSOURI 64105, (816) 374-2199.
 
 
 
 
 
 -------------------- ALJ DECISION FOLLOWS --------------------
 
    LT. COL. FRANKLIN E. WRIGHT, ESQUIRE
 
    FOR THE RESPONDENT
 
    JAMES J. GONZALES, ESQUIRE
 
    FOR THE GENERAL COUNSEL
 
    KENNETH BULL,
 
    FOR THE CHARGING PARTY
 
    BEFORE:  RANDOLPH D. MASON
 
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
    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 MAY 16, 1980 BY THE ACTING
 REGIONAL DIRECTOR, REGION 7, FEDERAL LABOR RELATIONS AUTHORITY, KANSAS
 CITY, MISSOURI, AGAINST THE DEPARTMENT OF THE AIR FORCE, U.S. AIR FORCE
 ACADEMY ("RESPONDENT").
 
    THE COMPLAINT ALLEGES THAT RESPONDENT VIOLATED SECTION 7116(A)(1) AND
 (5) OF THE STATUTE BY REFUSING TO BARGAIN WITH THE UNION CONCERNING A
 UNION PROPOSAL TO STAY THE DISCIPLINARY SUSPENSION OR REMOVAL OF AN
 EMPLOYEE UNTIL THE EMPLOYEE HAS EXHAUSTED APPROPRIATE REVIEW PROVISIONS
 IN THE COLLECTIVE BARGAINING AGREEMENT.  RESPONDENT DENIES THAT IT
 VIOLATED THE STATUTE AND ARGUES, IN DEFENSE, THAT (A) THE UNION WAIVED
 ITS RIGHT TO MAKE THIS PROPOSAL, (B) THE PROPOSAL WAS NONNEGOTIABLE, AND
 (C) THE INSTANT UNFAIR LABOR PRACTICE PROCEEDING IS NOT THE APPROPRIATE
 FORUM FOR THE RESOLUTION OF THESE ISSUES.
 
    A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED AT DENVER,
 COLORADO, ON JULY 30, 1980.  ALL PARTIES WERE REPRESENTED AND AFFORDED
 FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, AND EXAMINE AND
 CROSS-EXAMINE WITNESSES.  THE GENERAL COUNSEL AND THE RESPONDENT BOTH
 FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED.  /3/ BASED UPON THE ENTIRE
 RECORD HEREIN, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR
 DEMEANOR, THE EXHIBITS, AND OTHER RELEVANT EVIDENCE ADDUCED AT THE
 HEARING, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
 RECOMMENDED ORDER:
 
                             FINDINGS OF FACT
 
    AT ALL TIMES MATERIAL HEREIN, THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1687, ("UNION") HAS BEEN RECOGNIZED BY
 RESPONDENT AS THE EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT OF
 EMPLOYEES PAID FROM APPROPRIATED FUNDS BY THE UNITED STATES AIR FORCE
 ACADEMY.
 
    RESPONDENT AND THE UNION WERE PARTIES TO A COLLECTIVE BARGAINING
 AGREEMENT WHICH WAS DUE TO EXPIRE IN 1979.  IN ANTICIPATION OF
 RENEGOTIATING AN AGREEMENT, THE PARTIES ESTABLISHED NEGOTIATING TEAMS
 AND EXCHANGED PROPOSED WRITTEN GROUND RULES ON OR ABOUT SEPTEMBER 20,
 1979.  PARAGRAPH 6 OF MANAGEMENT'S PROPOSED GROUND RULES PROVIDED AS
 FOLLOWS:
 
    PROPOSALS FOR NEGOTIATIONS WILL BE EXCHANGED WITHIN 10 WORKING DAYS
 AFTER SIGNING THESE
 
    GROUND RULES AND WILL CONTAIN ALL ARTICLES INTENDED FOR NEGOTIATION.
 MANAGEMENT RETAINS THE
 
    RIGHT TO PRESENT FOR NEGOTIATION THOSE ITEMS REQUIRED BY DIRECTIVES
 OF HIGHER AUTHORITY.
 
    THE UNION VEHEMENTLY OBJECTED TO THIS PROPOSAL SINCE IT DID NOT
 AFFORD THE UNION A SIMILAR RIGHT TO INTRODUCE NEW "ITEMS" SUBSEQUENT TO
 THE EXCHANGE OF PROPOSALS.  /4/ THE PARTIES WERE UNABLE TO AGREE ON THIS
 PROPOSAL AND THE SERVICES OF THE FEDERAL MEDIATION AND CONCILIATION
 SERVICE WERE REQUESTED.  ON OCTOBER 9, 1979, THE PARTIES WERE SEPARATED
 AND THE MEDIATOR WAS ENGAGED IN SHUTTLE NEGOTIATIONS.  THE UNION'S
 SPOKESMAN PROPOSED (THROUGH THE MEDIATOR) THAT NEGOTIATIONS ON THE
 SUBSTANTIVE ISSUES SHOULD COMMENCE WITH "NO GROUND RULES." THE MEDIATOR
 TRANSMITTED THIS PROPOSAL TO THE RESPONDENT AND SUBSEQUENTLY INFORMED
 THE UNION THAT MANAGEMENT AGREED TO PROCEED WITH "NO GROUND RULES."
 
    AT THIS POINT, THE NEGOTIATING TEAMS HELD ANOTHER JOINT MEETING.  THE
 SPOKESMAN FOR MANAGEMENT STATED THAT THE LATTER HAD SOME MATTERS ABOUT
 WHICH IT WAS CONCERNED.  REFERRING TO HIS NOTES, HE LISTED 15 SUCH
 AREAS.  THE UNION RESPONDED AFFIRMATIVELY TO THREE ITEMS BUT REMAINED
 SILENT AS TO THE REMAINDER.  ITEM 14 ON RESPONDENT'S LIST SIMPLY STATED
 THAT "ALL PROPOSALS WILL BE EXCHANGED TODAY." THE UNION DID NOT RESPOND
 TO THIS;  THERE WAS NO DISCUSSION OR FURTHER ELABORATION.  /5/ TO THE
 EXTENT THAT THE UNION'S SILENCE COULD BE INTERPRETED AS A TACIT
 AGREEMENT, I INFER THAT, AT THE MOST, THE UNION MERELY AGREED TO
 EXCHANGE ON THAT DAY ALL SUBSTANTIVE PROPOSALS WHICH HAD BEEN FORMULATED
 AT THAT TIME.  THE UNION HAD NO INTENTION OF WAIVING THE RIGHT TO MAKE
 ADDITIONAL PROPOSALS AT A LATER DATE AND DID NOT CLEARLY AND
 UNMISTAKABLY WAIVE THAT RIGHT.  THIS IS PARTICULARLY SO IN LIGHT OF THE
 UNION'S PREVIOUS INSISTENCE ON ITS RIGHT TO INTRODUCE NEW PROPOSALS,
 WHERE REQUIRED BY DIRECTIVES OF HIGHER UNION AUTHORITY, AT ANY TIME
 DURING NEGOTIATIONS.  MOREOVER, IT IS CLEAR THAT THE UNION AT NO TIME
 WAIVED ITS RIGHT TO PROPOSE AMENDMENTS TO ARTICLES PREVIOUSLY PROPOSED.
 
    DURING THE COURSE OF NEGOTIATIONS OVER SUBSTANTIVE PROPOSALS, BOTH
 THE UNION AND MANAGEMENT AMENDED THEIR OWN CONTRACT PROPOSALS BY ADDING
 AND DELETING VARIOUS WORDS OR SECTIONS.  SUBSEQUENTLY, ON FEBRUARY 6,
 1980, THE UNION AMENDED ITS PROPOSED ARTICLE CONCERNING DISCIPLINARY
 ACTION.  THE REVISION CONSISTED OF THE ADDITION OF THE FOLLOWING
 SENTENCE, HEREAFTER REFERRED TO AS THE "STAY OF ACTION" PROPOSAL:
 
    IN THE EVENT OF A DISCIPLINARY SUSPENSION OR REMOVAL, THE GRIEVANT
 WILL EXHAUST THE REVIEW
 
    PROVISION CONTAINED IN THE AGREEMENT BEFORE THE SUSPENSION OR REMOVAL
 IS EFFECTIVE, AND THE
 
    EMPLOYEE WILL REMAIN IN A PAY STATUS UNTIL A FINAL DETERMINATION IS
 RENDERED.
 
    THE UNION PATTERNED THIS PROPOSAL AFTER A NEARLY IDENTICAL PROPOSAL
 PREVIOUSLY HELD BY THE AUTHORITY TO BE NEGOTIABLE.  AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE
 SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW JERSEY, CASE NO. O-NG-20, 2
 FLRA NO. 16 (NOVEMBER 29, 1979).  AT THE TIME THAT THE UNION PROPOSED
 THE ABOVE AMENDMENT, THE DISCIPLINARY ARTICLE OF THE CONTRACT HAD NOT
 YET BEEN NEGOTIATED.
 
    RESPONDENT DID NOT REJECT THE ABOVE UNION PROPOSAL UNTIL MARCH 6,
 1980, AT WHICH TIME MANAGEMENT ANNOUNCED THAT THE PROPOSAL WAS
 NONNEGOTIABLE.  RESPONDENT'S SPOKESMAN TOOK THIS POSITION EVEN THOUGH HE
 WAS AWARE OF THE AUTHORITY'S CONTRARY HOLDING IN THE FORT DIX CASE,
 SUPRA.  RESPONDENT OPENLY DISAGREED WITH THE AUTHORITY'S DECISION AND
 DID NOT MENTION ANY "GROUND RULE" IN DEFENSE OF ITS REFUSAL TO BARGAIN
 AT THAT TIME.  /6/
 
    ON MARCH 12, 1980, THE UNION FILED THE UNFAIR LABOR PRACTICE CHARGE
 AGAINST THE RESPONDENT INITIATING THE INSTANT PROCEEDING.
 NOTWITHSTANDING THIS CHARGE, THE PARTIES NEGOTIATED OTHER MATTERS TO
 AGREEMENT AND THE CONTRACT WAS EXECUTED ON APRIL 3, 1980.
 
                            CONCLUSIONS OF LAW
 
    THE FIRST QUESTION PRESENTED FOR DECISION IS WHETHER THE UNION WAIVED
 ITS RIGHT TO NEGOTIATE WITH RESPECT TO THE "STAY OF ACTION" PROPOSAL AT
 ISSUE HEREIN.  IT IS WELL ESTABLISHED THAT A WAIVER WILL BE FOUND ONLY
 IF IT CAN BE SHOWN THAT THE EXCLUSIVE REPRESENTATIVE CLEARLY AND
 UNMISTAKABLY WAIVED ITS STATUTORY RIGHT TO NEGOTIATE.  NASA, KENNEDY
 SPACE CENTER, KENNEDY SPACE CENTER, FLORIDA, 2 A/SLMR 566, A/SLMR NO.
 223 (1972).  RESPONDENT CONTENDS THAT MANAGEMENT AND THE UNION MADE AN
 ORAL AGREEMENT ON OCTOBER 9, 1979, THAT ALL PROPOSALS WOULD BE EXCHANGED
 ON THAT DATE AND THAT NO NEW PROPOSALS COULD BE MADE DURING THE COURSE
 OF NEGOTIATIONS.  RESPONDENT ARGUES THAT THE "STAY OF ACTION" PROPOSAL
 CONSTITUTED A COMPLETELY NEW SUBJECT THAT WAS INTRODUCED TO THE
 BARGAINING TABLE FOR THE FIRST TIME AFTER SEVERAL MONTHS OF
 NEGOTIATIONS.  I DISAGREE WITH THE RESPONDENT'S CONTENTIONS.  IN THE
 FIRST PLACE, IT IS NOT AT ALL CLEAR THAT THE UNION ENTERED INTO ANY
 AGREEMENT WITH RESPECT TO THE EXCHANGE OF PROPOSALS.  MANAGEMENT SIMPLY
 PROPOSED THAT "ALL PROPOSALS WILL BE EXCHANGED TODAY." THE UNION DID NOT
 RESPOND TO THIS PROPOSAL AND THERE WAS NO FURTHER DISCUSSION OF THE
 MATTER.  SECOND, TO THE EXTENT THAT THE UNION'S SILENCE COULD BE
 INTERPRETED AS A TACIT AGREEMENT, I INFER THAT THE UNION DID NO MORE
 THAN AGREE TO EXCHANGE ON THAT DAY ALL SUBSTANTIVE PROPOSALS WHICH HAD
 BEEN FORMULATED AT THAT TIME.  THE FACTS ARE CLEAR THAT THE UNION WAS
 NOT CONSCIOUSLY YIELDING THE RIGHT TO INTRODUCE NEW PROPOSALS AT A LATER
 DATE.  I MUST CONCLUDE AND HOLD THAT THE UNION DID NOT CLEARLY AND
 UNMISTAKABLY WAIVE ITS RIGHT TO NEGOTIATE WITH RESPECT TO THE "STAY OF
 ACTION" PROPOSAL.  /7/
 
    IT WAS THE CLEAR INTENT OF EXECUTIVE ORDER 11491 THAT ONCE A
 DETERMINATION OF NEGOTIABILITY IS MADE THROUGH THE PROCESSES OF THE
 ORDER, A SUBSEQUENT DECLARATION OF NONNEGOTIABILITY OF THE MATTER WOULD
 BE AN UNFAIR LABOR PRACTICE.  VETERANS ADMINISTRATION, 1 FLRA NO.
 101(1979).  THE SAME RESULT SHOULD OBTAIN UNDER THE STATUTE.  IN THE
 INSTANT CASE, MANAGEMENT'S NEGOTIATING TEAM WAS AWARE OF THE FACT THAT
 THE UNION HAD TAKEN THE "STAY OF ACTION" PROPOSAL FROM A NEGOTIABILITY
 DECISION BY THE AUTHORITY HOLDING SUCH PROPOSAL TO BE NEGOTIABLE.
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999, AND
 ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FOR DIX, NEW
 JERSEY, CASE NO. O-NG-20, 2 FLRA NO. 16 (NOVEMBER 29, 1979).
 
    THERE IS NO DISPUTE THAT THE UNION'S PROPOSAL IN THE INSTANT CASE IS,
 IN ALL MATERIAL RESPECTS, IDENTICAL TO THE LANGUAGE OF THE UNION'S
 PROPOSAL IN THE FORT DIX CASE.  RESPONDENT, HOWEVER, STILL SEEKS TO
 DISTINGUISH THE INSTANT PROPOSAL, ARGUING THAT A DIFFERENT BARGAINING
 UNIT AND DIFFERENT PARTIES WERE INVOLVED IN FORT DIX.  HOWEVER, AN
 UNFAIR LABOR PRACTICE WILL BE FOUND EVEN WHERE THE PARTIES INVOLVED IN
 THE PRIOR NEGOTIABILITY CASE WERE DIFFERENT AS LONG AS NO "MEANINGFUL
 DIFFERENCES" CAN BE FOUND BETWEEN THE TWO PROPOSALS.  DEPARTMENT OF THE
 TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, MIDWEST REGION,
 CHICAGO, ILLINOIS, 2 FLRA NO.  74(1980).
 
    I MUST CONCLUDE AND HOLD THAT THERE ARE NO MEANINGFUL DIFFERENCES
 BETWEEN THE NEGOTIABLE PROPOSAL IN FORT DIX AND THE PROPOSAL REJECTED BY
 MANAGEMENT AS NONNEGOTIABLE IN THE INSTANT CASE.  BOTH PROPOSALS
 PROVIDED, ESSENTIALLY, THAT AN EMPLOYEE THE AGENCY HAS DECIDED TO
 DISCIPLINE BY SUSPENSION OR REMOVAL MAY NOT ACTUALLY BE SUSPENDED OR
 REMOVED PENDING COMPLETION OF THE CONTRACTUAL GRIEVANCE PROCEDURE,
 INCLUDING ARBITRATION.  ALSO, IN BOTH CASES THE AGENCY'S BASIC POSITION
 IS THAT THE UNION'S PROPOSAL IS NONNEGOTIABLE BECAUSE THE PROCEDURE IT
 CREATES WOULD UNREASONABLY DELAY THE EXERCISE OF THE AGENCY'S AUTHORITY
 UNDER SECTION 7106(A)(2)(A) OF THE STATUTE TO SUSPEND AND REMOVE
 EMPLOYEES.  SINCE I AM CONSTRAINED TO FOLLOW THE AUTHORITY'S POSITION IN
 FORT DIX, IT IS CLEAR THAT THE RESPONDENT HAS VIOLATED SECTION
 7116(A)(5) AND (1) OF THE STATUTE BY REFUSING TO NEGOTIATE WITH THE
 UNION CONCERNING THE "STAY OF ACTION" PROPOSAL.
 
    THE ONLY ISSUE REMAINING FOR DECISION IS WHETHER THE UNION AND THE
 REGIONAL DIRECTOR ARE PRECLUDED FROM INSTITUTING THE INSTANT UNFAIR
 LABOR PRACTICE PROCEEDING BY VIRTUE OF SECTION 2424.5 OF THE AUTHORITY'S
 REGULATIONS.  THAT SECTION PROVIDES, IN PART, AS FOLLOWS:
 
    CASES WHICH SOLELY INVOLVE AN AGENCY'S ALLEGATION THAT THE DUTY TO
 BARGAIN IN GOOD FAITH
 
    DOES NOT EXTEND TO THE MATTER PROPOSED TO BE BARGAINED AND WHICH DO
 NOT INVOLVE ACTUAL OR
 
    CONTEMPLATED CHANGES IN CONDITIONS OF EMPLOYMENT MAY ONLY BE FILED
 UNDER THIS PART (I.E., AS A
 
    NEGOTIABILITY APPEAL).
 
    IN MY VIEW, THE UNDERLINED PORTION OF THE ABOVE-QUOTED SENTENCE
 REFERS TO AN AGENCY'S ALLEGATION THAT THE DUTY TO BARGAIN IN GOOD FAITH
 DOES NOT EXTEND TO A MATTER PROPOSED TO BE BARGAINED BECAUSE, AS
 PROPOSED, THE MATTER IS INCONSISTENT WITH LAW, RULE, OR REGULATION.  5
 C.F.R. 2424.1.  THE INSTANT CASE DOES NOT "SOLELY" INVOLVE THIS TYPE OF
 QUESTION BECAUSE IT WAS NECESSARY TO MAKE A FACTUAL DETERMINATION AS TO
 WHETHER THE UNION HAD WAIVED ITS STATUTORY RIGHT TO NEGOTIATE WITH
 RESPECT TO A PARTICULAR PROPOSAL.  THE AUTHORITY HAS PREVIOUSLY HELD,
 UNDER ANALOGOUS CIRCUMSTANCES, THAT FACTUAL DETERMINATIONS CAN BEST BE
 MADE THROUGH UTILIZATION OF THE INVESTIGATORY AND FORMAL HEARING
 PROCEDURES SET FORTH IN PART 2423 OF THE AUTHORITY'S RULES AND
 REGULATIONS GOVERNING UNFAIR LABOR PRACTICES PROCEEDINGS.  SEE, E.G.,
 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1141 AND DEPARTMENT OF
 THE INTERIOR, BUREAU OF MINES, ALBANY METALLURGY RESEARCH CENTER,
 ALBANY, OREGON, CASE NO. O-NG-80, 2 FLRA NO. 28(1979).  THEREFORE, I
 MUST CONCLUDE AND HOLD THAT THE INSTANT CASE WAS PROPERLY BROUGHT BEFORE
 THE UNDERSIGNED AS AN UNFAIR LABOR PRACTICE PROCEEDING.
 
    IN VIEW OF THE FOREGOING, I RECOMMEND THAT THE AUTHORITY ADOPT THE
 FOLLOWING:
 
                                   ORDER
 
    PURSUANT TO 5 C.F.R. 7118(A)(7) AND SECTION 2423.26 OF THE FINAL
 RULES AND REGULATIONS, 45 FED.REG. 3482, 3510(1980), IT IS HEREBY
 ORDERED THAT THE DEPARTMENT OF THE AIR FORCE, U.S. AIR FORCE ACADEMY,
 COLORADO, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) DECLARING NONNEGOTIABLE A PROPOSAL MADE IN THE COURSE OF
 NEGOTIATIONS BY THE AMERICAN
 
    FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1867, WHICH
 INVOLVES A MATTER PREVIOUSLY
 
    DETERMINED TO BE NEGOTIABLE BY THE FEDERAL LABOR RELATIONS AUTHORITY.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES
 
    IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION:
 
    (A) UPON REQUEST OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 1867,
 
    NEGOTIATE, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS,
 CONCERNING THE PROPOSAL TO STAY
 
    THE DISCIPLINARY SUSPENSION OR REMOVAL OF AN EMPLOYEE UNTIL THE
 EMPLOYEE HAS EXHAUSTED
 
    APPROPRIATE REVIEW PROVISIONS IN THE COLLECTIVE BARGAINING AGREEMENT.
 
    (B) POST AT THE FACILITIES OF THE DEPARTMENT OF THE AIR FORCE, U.S.
 AIR FORCE ACADEMY,
 
    COLORADO, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO
 BE FURNISHED BY THE
 
    FEDERAL LABOR RELATIONS AUTHORITY.  UPON RECEIPT OF SUCH FORMS THEY
 SHALL BE SIGNED BY THE
 
    SUPERINTENDENT OF THE USAF ACADEMY, AND SHALL BE POSTED AND
 MAINTAINED BY HIM FOR 60
 
    CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING
 BULLETIN BOARDS AND ALL OTHER
 
    PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.  THE
 SUPERINTENDENT SHALL TAKE
 
    REASONABLE STEP TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
 OR COVERED BY ANY OTHER
 
    MATERIAL.
 
    (C) NOTIFY THE REGIONAL DIRECTOR OF REGION VII, SUITE 680, CITY
 CENTER SQUARE, 1100 MAIN
 
    STREET, KANSAS CITY, MISSOURI 64105, IN WRITING WITHIN 30 DAYS FROM
 THE DATE OF THIS ORDER AS
 
    TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
                             RANDOLPH D. MASON
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  NOVEMBER 7, 1980
 
    WASHINGTON, D.C.
 
                                 APPENDIX
 
           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 DECLARE NONNEGOTIABLE ANY PROPOSAL MADE IN THE COURSE OF
 NEGOTIATIONS BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 1867, WHICH INVOLVES A MATTER PREVIOUSLY DETERMINED TO BE
 NEGOTIABLE BY THE FEDERAL LABOR RELATIONS AUTHORITY.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL, UPON REQUEST OF THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1867, NEGOTIATE TO THE EXTENT CONSONANT WITH
 LAW AND REGULATIONS REGARDING THE PROPOSAL TO STAY THE DISCIPLINARY
 SUSPENSION OR REMOVAL OF AN EMPLOYEE UNTIL THE EMPLOYEE HAS EXHAUSTED
 APPROPRIATE REVIEW PROVISIONS IN THE COLLECTIVE BARGAINING AGREEMENT.
 
                           (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 QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH
 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
 DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS AND
 TELEPHONE NUMBER ARE:  SUITE 680, CITY CENTER SQUARE, 1100 MAIN STREET,
 KANSAS CITY, MISSOURI 64105, (816) 274-2199.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ DEPARTMENT OF THE AIR FORCE, SCOTT AIR FORCE BASE, ILLINOIS AND
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-23, 5 FLRA NO.
 2(1981).
 
    /2/ THE JUDGE CITED THE AUTHORITY'S DECISION IN DEPARTMENT OF THE
 TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, MIDWEST REGION,
 CHICAGO, ILLINOIS AND NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER
 94, 1 FLRA NO. 74(1980), WHICH WAS DECIDED ON THE BASIS OF E.O. 11491,
 AS AMENDED, IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE
 REFORM ACT OF 1978 (92 STAT. 1224).
 
    /3/ AT THE HEARING, THE UNDERSIGNED INCORRECTLY STATED THAT BRIEFS
 COULD BE "MAILED" RATHER THAN "FILED" NO LATER THAN 30 DAYS AFTER THE
 HEARING.  5 C.F.R. 2423.25.  RESPONDENT'S COUNSEL RELIED UPON THIS DATE
 IN GOOD FAITH, AND TIMELY FILED HIS BRIEF IN ACCORDANCE THEREWITH.
 ALTHOUGH HE DID NOT OBJECT TO THE DUE DATE AT THE HEARING, THE GENERAL
 COUNSEL NOW MOVES TO REJECT RESPONDENT'S BRIEF AS UNTIMELY FILED.  IN
 THE INTEREST OF FAIRNESS, I HEREBY DEEM RESPONDENT'S BRIEF TO HAVE BEEN
 TIMELY FILED.  5 C.F.R. 2423.19(T).
 
    /4/ THE GROUND RULES FOR THE PARTIES' PREVIOUS NEGOTIATED CONTRACT
 HAD RETAINED THIS RIGHT FOR BOTH THE UNION AND MANAGEMENT.
 
    /5/ I CREDITED TH