13:0492(86)CA - DOD, Air Force, Armament Division, AFSC, Eglin AFB and AFGE Local 1897 -- 1983 FLRAdec CA



[ v13 p492 ]
13:0492(86)CA
The decision of the Authority follows:


 13 FLRA No. 86
 
 DEPARTMENT OF DEFENSE
 DEPARTMENT OF THE AIR FORCE
 ARMAMENT DIVISION, AFSC
 EGLIN AIR FORCE BASE
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1897, AFL-CIO
 Charging Party
 
                                            Case No. 4-CA-874
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had not engaged in
 certain unfair labor practices as alleged in the complaint and
 recommending that the complaint be dismissed.  The General Counsel filed
 exceptions to the Judge's Decision and the Respondent filed an
 opposition to the General Counsel's exceptions.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 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 Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommendations.  /*/
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 4-CA-874 be, and it
 hereby is, dismissed.
 
    Issued, Washington, D.C., December 13, 1983
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    DEPARTMENT OF DEFENSE
    DEPARTMENT OF THE AIR FORCE
    ARMAMENT DIVISION, AFSC
    EGLIN AIR FORCE BASE,
                                Respondent
 
    and
 
    AMERICA FEDERATION OF GOVERNMENT
    EMPLOYEES, LOCAL 1897, AFL-CIO
                              Charging Party
 
                                       Case No. 4-CA-874
 
    Lt Colonel Gordon B. Finley, Jr., Counsel for Respondent
 
    Brenda S. Green, Counsel for the General Counsel Federal Labor
 Relations Authority
 
    Before:  ISABELLE R. CAPPELLO
    Administrative Law Judge
 
                                 DECISION
 
    This is a proceeding under Title VII of the Civil Service Reform Act
 of 1978, 92 Stat. 1191 (1978), 5 U.S.C. 7101 et seq. (Supp. IV, 1980)
 (hereinafter referred to as the "Statute"), and the rules and
 regulations issued thereunder and published at 45 Fed. Reg. 3482 et
 seq., 5 CFR sec.2411 et seq.
 
    Pursuant to a charge signed on April 10, 1982 and filed on April 13,
 by the American Federation of Government Employees, AFL-CIO, Local 1897,
 AFL-CIO (hereinafter, the "Union"), the General Counsel of the Federal
 Labor Relations Authority ("Authority") investigated and filed this
 complaint.
 
    The complaint alleges that Respondent has violated Sections
 7116(a)(1) and (5) of the Statute.  /1/ At issue is the fiscal year 1981
 affirmative action plan which was implemented by Respondent on May 14,
 1981.  The complaint alleges that, on or about January 27, Respondent's
 labor relations officer submitted the plan to the Union for "final
 agreement," after incorporating into it certain Union proposals, that
 the Union signed it on January 28, and that thereafter deletions were
 made without notice to or collective bargaining with the Union
 concerning the deletion.
 
    Respondent admits that it used the term "final agreement" in
 connection with the plan submitted to the Union on January 27, 1981, but
 claims that it had earlier explained to the Union that the plan was
 "tentative in nature, and had not been submitted to the Command
 Section." See paragraph 7b of the answer to the complaint.  Respondent
 also claims that, before implementation of the plan, it did give the
 Union notice of the changes made by Command Section and an opportunity
 to bargain concerning them.  It avers that the Union's conduct,
 subsequent to April 29, constituted a refusal to bargain in good faith,
 or a waiver of the Union's right to bargain further, or to invoke
 impasse procedures provided for in the Statute.
 
    A hearing was held on the matter on April 23, 1982, at Eglin Air
 Force Base, Florida.  The parties appeared, adduced evidence, and
 examined witnesses.  Briefs were filed on June 14, by Respondent and
 June 16, by the General Counsel.  The record and the briefs have been
 fully considered, and based upon them, including my observation of the
 demeanor of the witnesses, I make the following findings, conclusions
 and recommended order.
 
                             Findings of Fact
 
    1.  It is admitted that the Department of Defense ("DOD") is an
 agency, within the meaning of 5 U.S.C. 7103(a);  that the Department of
 the Air Force is a primary national subdivision of DOD, under 5 CFR
 2421.5;  and that the Armament Division, Eglin Air Force Base ("Eglin")
 is an activity of the Air Force, under 5 CFR 2421.4.  The Armament
 Division was headed by Major General Robert M. Bond, during the period
 here relevant.  He was the senior installation commander at Eglin.  This
 Division is considered to be the "Command Section," at Eglin (TR 81),
 /2/ Major General Bond had final authority over the plan at issue.
 Douglas M. Johnson is Respondent's labor relations officer ("LRO");  and
 he has authority to commit Respondent, in labor relations matters.  John
 H. Adkinson is Respondent's equal employment opportunity officer
 ("EEOO");  and he is responsible for the development of affirmative
 action plans.
 
    2.  During all times relevant to this proceeding, the Union has been
 and is now a labor organization within the meaning of 5 U.S.C.
 7103(a)(4), and the exclusive representative of Civil Service employees
 at Eglin Air Force Base, with certain exceptions not herein relevant.
 The Union president is Thomas H. Newberry, Sr.  He became president in
 October 1980 and has served as a Union official, in different
 capacities, since 1973.  Maureen Preta serves as women's coordinator and
 steward for the Union.  Her responsibilities include assisting in
 negotiations on affirmative action plans.
 
    3.  On or about January 13, 1981, /3/ a consent judgment was signed
 by Eglin management in a class action involving equal employment
 opportunity ("EEO") at Eglin.  During the period here at issue, counsel
 for Respondent concedes that a "charged atmosphere surround(ed) the
 whole EEO program at Eglin, as a result of the pending or recently . . .
 .  I think in 1981 settled class action" (TR 14).  There was also
 pending, at that time, an unfair labor practice charge, filed by the
 Union on January 29, 1980, over negotiations for the fiscal year 1980
 EEO affirmative action plan at Eglin ("FY80 Plan").  /4/ The Union and
 community groups were anxious to see what Eglin management would propose
 for its fiscal year 1981 affirmative action plan ("FY81 Plan").
 
    4.  On January 13, the LRO presented Eglin's proposed FY81 Plan to
 the Union.  The FY81 Plan should have been in effect on October 1, 1980,
 but was delayed because of late-received instructions.  At this point,
 Eglin was in a rush to complete it, in order to meet a suspense (due)
 date imposed by headquarters.  The presentation was made at a meeting of
 seven persons which included Mr. Newberry and Ms. Preta.  All attendees
 who were available to testify at the hearing did so.  All understood
 that the Union was to review the Plan submitted to it and come back with
 "comments" (TR 81).  All understood that any Union proposals would have
 to be reviewed by the senior installation commander, Major General Bond,
 before final agreement could be declared.  This was an "unusual manner"
 in which to proceed (TR 85).  The "normal procedure" is for management
 to complete all the work on a proposal before presenting it to the Union
 (TR 86).  The Union officials at the January 13 meeting seemed "a little
 surprised" by the procedure, but made no objections to it (TR 87).
 
    5.  In a letter dated January 19, the Union requested certain
 information and set forth four "negotiating positions" (Jt 2.1-2).  The
 positions were as follows:
 
          a.  No long range or short range goals should be established
       unless the long range goals are to be filled in FY81.
 
          b.  Only goals in accordance with Equal Employment Opportunity
       Management Directive EEO-MD 702 /5/ dated 11 December 1979 should
       be established.
 
          c.  A statement should be included in the plan relating to how
       any vacancies above the number projected will be filled in
       relation to Affirmative Action.
 
          d.  There should be adherence to all instructions contained in
       Equal Opportunity Management Directive EEO-MD 702 dated 11
       December 1979.
 
    The Union requested a time and date for "negotiations," as well as
 the name of the negotiator who would represent the Government (Jt 2.2).
 
    6. In a letter dated January 27, Eglin's LRO replied to the Union's
 January 19 letter.  See Jt 3.  Except for one item of requested
 information, a response was given to each item.  The excepted item was
 one where it appeared that the Union was requesting data which included
 positions outside the bargaining unit;  and the LRO declined to respond
 to it without a "demonstrated need" (Jt 3.2c).  A reply was given to
 each of the "negotiating requests," as follows:
 
          a.  As to the matter of long and short range goals, "(w)e have
       received permission from HQ AFSC (Headquarters, Air Force Systems
       Command) to eliminate the Long Range and Short Range Goals" (Jt
       3.3a).
 
          b.  "Only goals that are in accordance with EEOC MD 702 have
       been established" (Jt 3.3b).
 
          c.  A statement was included in the Plan relating to how
       vacancies above the projected number would be filled.
 
          d.  The Plan was in compliance with all instructions in EEOC MD
       702.
 
    The letter concluded with the statement:
 
          Your specific negotiating requests were appreciated.  It is
       evident from the responses provided in paragraph 3 above that your
       requests precipitated meaningful change to the Plan.  In that each
       of your negotiation requests have been resolved favorably and
       incorporated in the Plan, coordination with your organization is
       considered to be complete.  It is requested that we meet in the
       Eglin EEO office on 28 January 1980 /6/ at 1500 to reach final
       agreement.
 
    (Jt 3, paragraph 4, emphasis added because of the importance of these
 terms to this proceeding.)
 
    7.  According to the parties, the meaning of "coordination" is really
 what this suit is all about.  See TR 7.  The Union President was not
 "quite sure" what the term meant (TR 37) and was "not familiar with it,"
 in labor-management negotiations (TR 38).  He assumed that it meant that
 "our coordination was all that was needed to finalize our negotiations"
 (TR 34), and that his "coordination meant approval of it" (TR 37).
 
    8.  The LRO at Eglin explained that the term "coordination" is a
 "very common term" throughout the Air Force and means that the document
 has been seen by the party signing on the "coordination lines" of
 correspondence (TR 106).  It can also mean, when a document has been
 negotiated back and forth, that the Union certifies that it "concurs
 with the document as stated" (TR 105).
 
    9.  On January 28, the meeting between management and labor
 representatives took place.  There were three representatives for each
 side.  All those who were available, at the time of the hearing,
 testified.
 
    a.  Quite a bit of discussion about the contents of the FY81 Plan
 took place between Ms. Preta, and Mr. Adkinson.
 
    b.  The Union was asked to sign a document entitled "FY81 EEO Plan of
 Action Coordination." It was signed by Mr. Newberry and by Mr. Erhart,
 president of another union representing professional employees at Eglin.
  (Mr. Erhart was out of the country, at the time of the hearing.) Its
 text stated:
 
          The undersigned certify that we have reviewed the FY81 Eglin
       Air Force Base Affirmative Action Plan and hereby coordinate on
       the Plan as amended.
 
    c.  Just before the signing, Mr. Adkinson said that:  "We think that
 we have a good plan now, and all we need to conclude our negotiations is
 you all's signature on the coordination" (TR 31).
 
    d.  In view of fact that the LRO had termed the meeting as one "to
 reach final agreement," had authority to commit management, and would
 usually interrupt negotiations, if needed, to obtain clearance from
 higher authority, the Union officials felt that the negotiations were
 "complete," when the Union president affixed his signature to the
 document given to him by the LRO (TR 63).  The Union officials were not
 concerned that the LRO did not sign the document, because the LRO had
 told them that the Plan had to go to the Vice Commander of the Armament
 Division, "for review" prior to going to the Commander, "for signature"
 (TR 62 and see also TR 31).  The Union officials assumed that the review
 would be the routine one given to any document before being sent into
 the Commander for signature.
 
    e.  Normally, when final agreement is reached between the parties, a
 document entitled "Memorandum of Agreement" is signed, by the Union and
 by the LRO, representing management (TR 140).
 
    f.  Both the LRO and EEOO testified that they expressly told the
 Union officials of the possibility of further changes being made in the
 Plan, that would warrant further negotiations, both at the January 13
 and January 28 meetings.  Neither Union official recalled such a
 statement being made.  I can find no sound basis for discrediting any of
 these four witnesses.  All have some interest in the matter and gave
 testimony supporting that interest.  All seemed honest and forthright in
 testifying.
 
    10.  On February 19, changes were made in the Plan by Major General
 Bond.  Respondent concedes that they were "not of a de minimis nature"
 (TR 17).  The "major difference" was a deletion of the provision that,
 "(w)here there was severe underrepresentation (i.e., more than 50
 percent in the targeted SJC), the goal should be doubled." /7/ Compare
 GC 3 with GC 4 and see TR 70.  According to the Union, the doubling was
 "in accordance with EEOC guidelines" (TR 67).
 
    11.  On March 12, the Union was invited by management to another
 meeting concerning the Plan.  At this meeting, the Union was advised of
 the changes made on February 19.  The meeting was held in the office of
 the Chief of Civilian Personnel and attended by the Chief, as well as by
 the LRO and the EEOO.  Ms. Preta represented the Union.  She told the
 LRO that she was "very upset" about the changes, and that if he did not
 have the authority to negotiate and bind management, then she wanted to
 negotiate with the "appropriate people" (TR 68).  She noticed that
 everyone at the meeting was "extremely nice" and "appeared like maybe
 they were in a corner and they had been given some instructions and they
 were trying to work them out by getting us to agree" (TR 69).  She
 agreed to review the changed Plan.  It is the position of Respondent
 that "negotiations" over the FY 81 Plan commenced on March 12, and that
 the prior labor-management meetings concerning the Plan had been merely
 "to assist . . . in preparing the coordinated draft to go to the Command
 Section." See TR 116-115 and 135-136.  It is the position of the General
 Counsel that violations of the Statute occurred at this point, and that
 subsequent events are not relevant.  See GCBr 6, fn. 14.
 
    12.  On March 17, the Union president sent the LRO a written response
 to the changed FY81 Plan.  He referred to "continuing negotiations" over
 it (R 1).  He requested a return to what the Union felt had been
 negotiated and agreed to at the January 28 meeting-- namely, that the
 FY81 Plan adhere to goals and instructions contained to EEO Management
 Directive MD 702.
 
    13.  On March 25, the LRO sent a written response to the March 17
 response of the Union.  The LRO stated that the FY81 Plan was in accord
 "with the letter and intent of EEOC MD 702", which was "advisory" only,
 for fiscal year 1981 (R 1.2 and .3).  The LRO stated that:  "We
 therefore feel that we have met both your requests . . . (and) absen(t)
 any other specific requests," that the FY81 Plan would be signed on
 March 30 and sent to HQ AFSC (R 2.4).
 
    14.  On March 30, the Union president sent the LRO a letter in which
 he stated that the revised Plan was not the one which the Union "had
 considered negotiated," and that implementation of a plan that "does not
 have AFGE coordination" is a violation of the Statute (R 3.1).  "One
 specific area" mentioned as requiring bargaining was the matter of
 doubling goals where underrepresentation was severe, "in compliance with
 EEOC MD 702" (R 3.2 and 3).  The letter concluded with a request for
 "bargaining on this issue" (R 3.4).
 
    15.  On April 3, another labor-management meeting was held to discuss
 the FY81 Plan.
 
    a.  The Union stated that it would to go back to the Plan that it
 thought it had "negotiated" (TR 169).  Reasons for the changes made by
 management were discussed.  Management explained that the changes were
 made pursuant to verbal instructions from "Headquarters Air Force" (GC
 5.1).  See also TR 164.
 
    b.  Some "(n)ot very kind words (were) said back and forth" (TR 169).
  They consisted of the following exchange, as testified to by Ms. Preta:
 
          Well, Mr. Johnson told Mr. Newberry-- Well, asked Mr. Newberry
       . . . .  How the people in his bargaining unit, down in CE, would
       like it when they found out that all of the promotions were going
       to go to minorities or women because of our number of goals, and
       Mr. Newberry began to get a little flustered about it because he
       didn't know how to . . . handle this.  And, so, I piped up and I
       said, "Well, now that is intimidation, you know, I don't think we
       ought to be doing that." Then, Mr. Adkinson, he said that so many
       people had been asking him about the status of the plan because it
       was getting so late in the year, and he said that he was going to
       have to . . . go around and brief all these interest groups, and I
       know the Minority Committee was interested, and he said he was
       going to have to go and brief all these groups, and that the Union
       was holding it up because we refused to negotiate (TR 169-170).
 
    c.  The Union did make an offer in terms of negotiation.  As
 explained by Ms. Preta:
 
          The big hang ups from management was this doubling of goals,
       because what they did was, in some areas . . . they had goals that
       were in excess of the projected vacancies;  they were better than
       a hundred percent (100%), and they didn't like that . . . .  So I
       said, "okay, if that's what is your big hang up about the plan,
       then why don't we, in those instances where it exceeds a hundred
       percent (100%), because I know you can't fill in excess of a
       hundred percent (100%) - they why don't we just drop those and
       make it just a hundred percent (100%) and not worry about the
       excess." They said that they could not do that people had been
       asking him about the status of the because-- they couldn't
       deviate, it either had to be not doubling or it had to be doubling
       them. . . . (TR 170)
 
    d.  The meeting ended with each party making a statement that each
 "was going to their next level . . . to get a reading" (TR 170-171).
 
    e.  Management suggested that the parties "get back together April
 10th to continue" (TR 166).  The LRO also asked the Union for a written
 position on how it interpreted EEOC MD 702.
 
    16.  On April 10, a telephone conversation took place between the LRO
 and the Union president.
 
    a.  The LRO called the Union president and asked for the Union's
 written position before a meeting scheduled for that day, so that the
 LRO could be prepared with a response.
 
    b.  The Union president responded that he had been advised by the
 Union's national office to file an unfair labor practice charge for
 bad-faith bargaining.
 
    c.  The LRO responded that this left both of them "between a rock and
 a hard place" (TR 145 and GC 5).  The LRO mentioned the fact that the
 consent judgment had just been signed, and that the "communities
 downtown were eyeing us daily, and here we were into April without an
 Affirmative Action plan" (TR 145).  The LRO warned the Union president
 as to the filing of the charge, that a resolution would be "a long time
 down the road," and in the meantime "we have no plan, and we're both
 going to have to withstand the pressure that he (the Union president)
 had more to lose, as he was in a "political position" (TR 166).
 
    d.  The negotiating session for April 10 was cancelled, by mutual
 agreement, with a future date for reconvening dependent upon submission
 by the Union of its written position on how it interpreted EEOC MD 702.
 
    17.  On April 24, the LRO wrote to the Union president that the only
 communication received from him since April 10 was an unfair labor
 practice charge.  The LRO attached certain EEOC documents and
 represented that they would serve "to clarify the point we have been
 making regarding the computation of goals for underrepresented groups"
 (R 5.2).
 
    a.  The EEOC documents cover 1982 Plans, but they also contain
 clarifying materials, including one on a "misconception" which had
 arisen under the prior EEOC MD 702 (the one here at issue) as to the
 "annual goal setting formula" for underrepresented groups.  See R 5 and
 paragraph C, on page 2, of the attachment dated March 19, 1981.  Where
 there is severe underrepresentation "and the total number of vacancies
 necessary to set annual goals might equal or exceed 100 percent of
 available vacancies," EEOC explained that it would then "be necessary
 not only to prorate vacancies among the underrepresented groups, but
 also to adjust the vacancies used in the annual goal formula by dividing
 available vacancies in half." See paragraph 2, on page 3, of the same
 attachment, emphasis by EEOC.  This adjustment was apparently not made
 when the parties met on January 28 and the Union president signed off on
 the plan.
 
    b.  The LRO letter concluded with the statement:
 
          The Commander's objective of obtaining a workable and
       acceptable Affirmative Action Plan remains the same.  We continue
       to solicit your cooperation in this effort which has such a high
       level of visibility for both parties.  Accordingly, it is
       requested that we meet in my office on 29 April 81 at 0800 to
       complete these important negotiations in order to meet our joint
       official responsibilities and the expectations of the workforce in
       general (R 5.2).
 
    18.  On April 29, the Union president replied in writing to the LRO
 letter of April 24.  He informed the LRO that "no further negotiations
 are considered appropriate," pending resolution of the charge (GC 5).
 He also informed the LRO that the Union had given management its
 position in writing, several times, and it was also in the unfair labor
 practice charge.
 
    19.  On May 7, the LRO wrote to the Union president that the Plan
 would be implemented on May 14.
 
    20.  On May 8, the Union president advised the LRO that an unfair
 labor practice was pending, and that the LRO acted "at (his) peril" in
 implementing the FY81 Plan (GC 6).
 
    21.  On May 14, Respondent implemented the FY81 Plan which was
 presented to the Union on March 12.
 
    22.  The FY81 Plan has now been superceded by one for fiscal year
 1982.
 
                        Discussion and Conclusions
 
    Resolution of the issues presented in this case rests upon the
 definition of "collective bargaining" found in Section 7103(a)(12) of
 the Statute.  It provides that:
 
          "(C)ollective 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;  . . . .
 
    Section 7114 further defines the obligation, as follows:
 
          (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 -
 
          (1) to approach the negotiations with a sincere resolve to
       reach a collective bargaining agreement;
 
          (2) to be represented at the negotiations by duly authorized
       representatives prepared to discuss and negotiate on any condition
       of employment;
 
          (3) to meet at reasonable times and convenient places as
       frequently as may be necessary, and to avoid unnecessary delays;
 
          (4) in the case of an agency, to furnish to the exclusive
       representative involved, or its authorized representative, upon
       request and, to the extent not prohibited by law, data -
 
          (A) which is normally maintained by the agency in the regular
       course of business;
 
          (B) which is reasonably available and necessary for full and
       proper discussion, understanding, and negotiation of subjects
       within the scope of collective bargaining;  and
 
          (C) which does not constitute guidance, advice, counsel, or
       training provided for management officials or supervisors,
       relating to collective bargaining;  and
 
          (5) if agreement is reached, to execute on the request of any
       party to the negotiation a written document embodying the agreed
       terms, and to take such steps as are necessary to implement such
       agreement.
 
          (c)(1) An agreement between any agency and an exclusive
       representative shall be subject to approval by the head of the
       agency.
 
    This Authority has recently had occasion to apply these statutory
 provisions to a situation where the issue of good faith bargaining arose
 in the context of tentative agreements being withdrawn by management.
 In Division of Military and Naval Affairs, State of New York, Albany,
 New York, 7 FLRA No. 51, at 321 (1981), the Authority adopted the
 decision of Administrative Law Judge Louis Scalzo, who held that
 evidence of bad faith bargaining is to be found in the withdrawal of
 tentative or previous agreements, but that such withdrawal "does not
 establish per se the absence of good faith." 7 FLRA at 338.  Judge
 Scalzo adopted the reasoning used under Executive Order 11491, which
 also mandated good faith bargaining, that:  "(T)he totality of the
 evidence in a case must be considered in order to determine whether a
 party has attempted to evade or frustrate the bargaining
 responsibility."
 
    Having followed this precept, I have reached the same conclusion
 reached in Division of Military and Naval Affairs, that the totality of
 the evidence does not indicate that bad faith bargaining occurred.
 
    The General Counsel recognizes that his case rests upon first
 establishing that there was an agreement reached on January 28.  See
 GCBr 9.  While statements made and actions taken by the LRO and EEOO
 could be so construed, and for this reason, may be judged as inept, I am
 convinced that they were not intended to indicate that a final agreement
 had been reached.  At best, the evidence supports a conclusion that a
 tentative agreement was reached and was contingent upon approval by the
 top commander at Eglin.  This conclusion is supported by the fact that
 the usual "Memorandum of Agreement" was not offered to the Union, on
 January 28, and by the fact that Respondent's LRO did not sign for
 management, as he would have done, had final agreement been reached.
 
    While the procedure followed here were unusual, in that any proposal
 offered to the Union would normally have been first approved by the top
 commander, it was adopted under unusual circumstances.  The FY81 Plan
 should have been in place on October 1, 1980, and had a short suspense
 (due) date imposed by higher authority.  Also, Eglin was operating under
 a charged atmosphere concerning its whole EEO program.  It had just
 signed a consent judgment in a civil suit concerning its program and
 would have understandably been anxious to receive early input from
 employee representatives on its next affirmative action plan.  Another
 catalyst for the unusual procedure may have been the unfair labor
 practice charge filed by the Union over Eglin's plan then in effect.
 That charge was based on a failure of Respondent to obtain early input
 from the Union.  See the decision issued in Case No. 4-CA-351 on July
 20, 1982.  In any event, the Union knew the procedure was unusual, and
 raised no objections to it.
 
    While recognizing a measure of ineptness on the part of Respondent, I
 also find an undue degree of naivety on the part of the Union in this
 matter.  Its president was not inexperienced in the field of
 labor-management relations.  He recognized that the document he was
 asked to sign, on January 28, bore a strange title, "FY81 Plan of Action
 Coordination," rather than "Memorandum of Agreement," which usually
 memorializes final agreements of the parties.  He also was too ready to
 make assumptions as to why no one from management signed the document.
 Where there is no convincing evidence that an agency intentionally
 misled a union, mistaken impressions and understandings of a union do
 not an agency unfair labor practice make.  Compare Department of Health,
 Education and Welfare, Social Security Administration, Western Program
 Center, San Francisco, California, A/SLMR No. 501, 5 A/SLMR 225, at 230
 (1975), a decision of the Assistant Secretary of Labor for
 Labor-Management Relations under Executive Order 11491, the precursor of
 the Statute.
 
    Withdrawal of even tentative agreements, without good cause, can be
 evidence of bad-faith bargaining, however.  See Decision of Military and
 Naval Affairs, 7 FLRA at 338.  Good cause can be found, on this record,
 in the general lack of understanding of how to proceed under EEOC
 directives then in effect as to affirmative action plans.  Top
 management at Eglin felt impelled to reverse its EEOO and refuse to
 adopt goals for Eglin which even the Union conceded were impossible of
 achievement, in some areas.  About a month after top management at Eglin
 made this change, EEOC itself issued a clarification of the
 misconception that had arisen over the goal-setting process.
 
    The totality of the evidence in this case convinces me that
 Respondent did bargain in good faith with the Union.  It repeatedly
 called the Union to the bargaining table to negotiate the changes made
 in the Plan, on February 19.  Explanations for the changes were given.
 Spirited negotiating sessions ensued, at which Respondent was
 represented by an officer authorized to commit it.  While this officer
 made some remarks which the Union may regard as intimidating, they were
 not out of line with the robust give-and-take discussions that can be
 expected around the bargaining table.  See findings 15b and 16c, supra.
 Respondent was cooperative in furnishing information in response to all
 reasonable requests.  At the last meeting, Respondent's negotiator
 offered to take the disputed issue to the "next level . . . to get a
 reading." See finding 15d, supra.  This offer demonstrates a bargaining
 stance of some flexibility, on the part of Respondent, and not one of an
 "unyielding nature," as the General Counsel argues (GCBr 17).  Even
 after being informed of the unfair labor practice charge, management
 continued to pursue negotiations, by furnishing documents which it felt
 supported its positions, and by setting a date and time for another
 meeting.  At this point, the Union expressly declined further
 negotiations, and called them inappropriate, pending resolution of its
 charge.  Management then gave the Union a 7-day notice of its intent to
 implement the FY81 Plan.  The Union's only response was a warning that
 management acted at its peril in implementing the Plan.
 
    In view of the conclusions discussed above, it is unnecessary to
 reach other issues raised by the parties.
 
                        Ultimate Findings and Order
 
    The General Counsel has not shown, by a preponderance of the
 evidence, that Respondent has violated Sections 7116(a)(1) and (5), as
 alleged.
 
    According, it is ORDERED that the complaint in Case No. 4-CA-874
 should be, and it hereby is, dismissed.
 
                                       ISABELLE R. CAPPELLO
                                       Administrative Law Judge
 
    Dated:  July 26, 1982
    Washington, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The pertinent provisions of Section 7116 are:
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any empl