16:0969(129)CA - Labor and AFGE -- 1984 FLRAdec CA



[ v16 p969 ]
16:0969(129)CA
The decision of the Authority follows:


 16 FLRA No. 129
 
 UNITED STATES DEPARTMENT OF LABOR
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-20225
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had engaged in the
 unfair labor practices alleged in the complaint, and recommending that
 it be ordered to cease and desist therefrom and take certain affirmative
 action.  Thereafter, the General Counsel and the Charging Party filed
 exceptions to the Judge's Decision.  /1/
 
    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 recommended Order.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority hereby orders that the
 Respondent, United States Department of Labor, shall:
 
    1.  Cease and desist from:
 
    (a) Furloughing bargaining unit employees of the Mine Safety and
 Health Administration represented exclusively by the National Council of
 Field Labor Locals, American Federation of Government Employees,
 AFL-CIO, without first notifying the exclusive representative and
 affording it the opportunity to negotiate concerning the impact and
 implementation of any such decision to furlough.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing employees in the exercise of the rights accorded them by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Upon request, bargain concerning the impact and implementation of
 the decision to furlough Mine Safety and Health Administration employees
 during the period January 4, 1982 through February 2, 1982.
 
    (b) Post at its facilities wherever bargaining unit employees are
 located, 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 an appropriate official of the United States
 Department of Labor, and shall be posted and maintained for 60
 consecutive days thereafter in conspicuous places, including all places
 where notices to employees are customarily posted.  Reasonable steps
 shall be taken to insure that said Notices are not altered, defaced, or
 covered by any other material.
 
    (c) Notify the Regional Director for Region III, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order as to what steps have been taken to comply herewith.
 
    Issued, Washington, D.C., December 18, 1984
 
                                       /s/ HENRY B. FRAZIER III
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       /s/ RONALD W. HAUGHTON
                                       Ronald W. Haughton, 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 furlough bargaining unit employees of the Mine Safety and
 Health Administration represented exclusively by the National Council of
 Field Labor Locals, American Federation of Government Employees,
 AFL-CIO, without first notifying the exclusive representative and
 affording it the opportunity to negotiate concerning the impact and
 implementation of any decision to furlough.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Statute.
 
    WE WILL, upon request, bargain concerning the impact and
 implementation of the decision to furlough Mine Safety and Health
 Administration employees during the period January 4, 1982 through
 February 2, 1982.
                                       . . .
                                       (Activity)
 
    Dated:  . . .  By:  . . .
 
                         (Signature) (Title)
 
    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.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    UNITED STATES DEPARTMENT OF LABOR
                                Respondent
 
    and
 
    AMERICAN FEDERATION OF GOVERNMENT
    EMPLOYEES, AFL-CIO
                             Charging Party
 
                                       Case No. 3-CA-20225
 
    Barbara J. Sullivan, Esquire
    For the Respondent
 
    Eileen Hamamura Miller, Esquire
    For the General Counsel
 
    Deborah Loeb Bohren, Esquire
    For the Charging Party
 
    Before:  LOUIS SCALZO
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This case arose as an unfair labor practice proceeding under the
 provisions of the Federal Service Labor-Management Relations Statute, 92
 Stat. 1191, 5 U.S.C. 7101, et seq., (hereinafter called "the Statute"),
 and the Rules and Regulations issued thereunder.
 
    The complaint alleges that the United States Department of Labor
 (Respondent), violated Sections 7116(a)(1) and (5) of the Statute by
 furloughing approximately 200 employees of the Mine Safety and Health
 Administration (MSHA) of the Department of Labor without first
 negotiating with the National Council of Field Labor Locals, American
 Federation of Government Employees, AFL-CIO (Union or Council), /1A/ in
 response to a Union request to negotiate concerning procedures relating
 to the implementation of the decision to furlough, and concerning
 appropriate arrangements for employees adversely affected by the
 decision.  /2/ As a remedy counsel for the General Counsel and counsel
 representing the Charging Party seek a cease and desist order, the
 posting of an appropriate notice to employees, mailing of such notice to
 furloughed employees no longer employed by the Respondent, and lastly
 that employees affected by the furlough be reimbursed for any and all
 pay lost as a result of the furlough.
 
    Counsel representing the Respondent contends that the Respondent did
 not fail or refuse to negotiate with the Union;  that Respondent
 complied with the terms of a governing collective bargaining agreement
 and established bargaining practice;  that the subject of furloughs was
 raised during prior collective bargaining negotiations leading to prior
 written agreements, and that the Union waived any bargaining rights
 concerning procedures relating to the implementation of the decision to
 furlough employees;  that management rights conferred on the Respondent
 by the provisions of Section 7106(a)(1) and (a)(2)(A) operate to deny
 the Union the right to negotiate concerning procedures relating to
 methods used to select employees to be furloughed;  and lastly, that
 backpay would not be an appropriate remedy in any event in light of the
 provisions of the Backpay Act of 1966, as amended by the Civil Service
 Reform Act of 1978, 5 U.S.C. 5596(b)(1)(A)(i).
 
    The parties were represented by counsel during the hearing and were
 afforded full opportunity to be heard, adduce relevant evidence, and
 examine and cross-examine witnesses.  Post-hearing briefs were received
 from counsel of record.  Based upon the entire record herein, including
 my observations of the witnesses and their demeanor, the exhibits and
 other relevant evidence adduced at the hearing, /3/ and the briefs
 filed, I make the following findings of fact, conclusions and
 recommendations.
 
                             Findings of Fact
 
    The Furlough
 
    There is no factual dispute concerning key elements of MSHA's
 furlough of approximately 220 field organization employees during the
 period beginning January 4, 1982, and extending through February 2, 1982
 (G.C. Exhs. 18-19, Tr. 385).  The decision to implement the furlough was
 made by the Assistant Secretary in charge of MSHA and his staff (Tr.
 189-190, 379).  These officials also decided which employees would be
 subject to furlough (Tr. 189-190).  Furlough letters to affected
 bargaining unit employees were prepared and signed by MSHA management on
 December 18, 1981 (Tr. 432-433, 435, 437).  MSHA intended to dispatch
 all of the letters on December 19, 1981;  however, due to a clerical
 error, only a portion of the furlough letters were mailed on December
 19th.  The remainder were mailed on December 28, 1981 (Tr. 435, 448).
 It therefore appeared that the furlough was effectuated on December 19th
 and December 29th, with January 4, 1982, being the day on which the
 actual furlough began.  /4/
 
    MSHA decided that the furlough of employees was necessitated by
 Congressional action on a continuing resolution enacted by the Congress
 on December 15, 1981.  It prohibited MSHA from obligating or expending
 funds "to prescribe, issue, administer, or enforce any standard, rule,
 regulation, or order under the Federal Mine Safety and Health Act of
 1977 with respect to any person engaged in the surface mining of stone,
 clay, colloidal phosphate, sand, or gravel, or with respect to any
 person engaged in construction activities on the surface area of any
 coal or other mine" (Post-hearing Stipulation of Facts dated May 26,
 1982).  The Congressional action prohibited surface mine inspections
 (Stipulation of Facts dated May 26, 1982).  The continuing resolution
 became effective on December 16, 1981, and continued for a period ending
 on March 31, 1982 (Tr. 380-381).  It imposed no specific limitation on
 expenditures.  It merely prohibited spending on certain MSHA activities
 (Tr. 449).
 
    The Union's Request to Negotiate
 
    On December 14, 1981, Mr. Jesse Rios, President of the Council,
 became aware of rumors that MSHA planned to furlough a number of
 employees in various MSHA offices throughout the nation (Tr. 35-36, 39).
  Mr. Rios was employed by the Department of Labor in Chicago.  On the
 same date, Mr. Rios telephoned Mr. Isaac Cole, Director, of the Division
 of Collective Bargaining, Office of Labor Management Relations, United
 States Department of Labor (Tr. 40-41).  Mr. Cole said that he had not
 heard anything about such furloughs, but that he would convey the
 inquiry to Mr. Robert Hastings, Director of the Department's Office of
 Labor Management Relations, and that they would "get back to (Mr. Rios)
 as soon as possible." The record reflected that Mr. Hastings and/or Mr.
 Cole, together with Mr. Elwood Taub, Deputy Director of the Office of
 Labor Management Relations, had authority to determine whether or not
 the Department of Labor would negotiate concerning furloughs (Tr. 204).
 
    An unrelated bargaining session attended by representatives of the
 Council and the Department of Labor in Washington, D.C. coincided with
 the rumors of furlough.  The session convened on December 15, 1981, for
 the purpose of negotiating matters relating to the Employment Standards
 Administration.  The Council was represented by Mr. Paul Stewart,
 Executive Vice President of the Council, and Mr. Elwood Knittle, Mr. Ben
 Furlong, and Mr. Charles Davis, Council Vice Presidents.  Mr. Knittle
 was an employee of MSHA, and had previously been delegated authority to
 deal with the Department of Labor on MSHA matters (Tr. 32).  /5/ The
 Department negotiating team was led by Mr. Hastings and Mr. Cole.
 
    Between 10:30 a.m. and 11:00 a.m. on December 15th, during a break in
 negotiations, Mr. Hastings advised Mr. Stewart that he had received
 information from MSHA that there would be a furlough and that about 300
 MSHA employees would be affected.  He announced that his office would be
 receiving more definite information "shortly," and that the Department
 would give the Union formal written notice (Tr. 208).  At approximately
 the same time, Mr. Hastings informed participants in negotiations that
 the then applicable continuing resolution had expired, that a new
 continuing resolution had passed both houses of Congress, and that
 language in the legislation would operate to affect MSHA operations (Tr.
 129-130, 223).
 
    As a result of the report received from Mr. Hastings, the Union team
 caucused, and then telephoned Mr. Rios in Chicago to discuss the issue.
 Mr. Rios asked the Union negotiators to bring the matter up at the
 bargaining table, and obtain an official position from Mr. Hastings (Tr.
 224-225).  Mr. Rios also asked Mr. Stewart to report back to him.  Mr.
 Stewart thereafter asked Mr. Hastings about the issue at the bargaining
 table and was told that Mr. Hastings would apprise the Union as soon as
 specifics were known, and that "furloughs were not negotiable" (Tr.
 225).  /6/
 
    Mr. Stewart reported to Mr. Rios what Mr. Hastings said at the
 bargaining table (Tr. 131, 133-134).  They agreed to request immediate
 bargaining on impact and implementation issues relating to the expected
 decision to furlough because it was anticipated that the furlough was
 imminent (Tr. 45-46, 225-226).  /7/ A written bargaining request was
 then drafted during the telephone conversation (Tr. 46, 136-137).  It
 was agreed that Mr. Rios' name would be affixed to the request to avoid
 procedural objections (Tr. 48-49, 138), and that an effort would be made
 to have Mr. Rios travel to Washington, to join the bargaining team then
 in Washington so that negotiations on furlough issues could commence
 (Tr. 46, 226).
 
    At 12:15 p.m. on December 15th, Mr. Stewart personally delivered an
 impact and implementation bargaining request to Mr. Hastings' office
 (Tr. 226).  The request for negotiations referred specifically to the
 proposed furlough of MSHA employees and included the following language:
 
          The NCFLL is interested in the procedures to be used by the DOL
       in effectuating such an action and the negative impact on the
       bargaining unit employees (G.C. Exh. 4).
 
 The request then designated the previously identified Union negotiating
 teams, with the addition of Mr. Rios, as the appropriate individuals to
 represent the Union in connection with the negotiations requested.
 
    After lunch on December 15th, Mr. Hastings acknowledged receipt of
 the written bargaining request, and said that he would respond to Mr.
 Rios in due course (Tr. 140, 227).  Union representatives strongly
 objected to this procedure, and insisted on arranging for immediate
 negotiations in the event furloughs were imposed on bargaining unit
 employees (Tr. 140-141, 144-145).  Mr. Hastings then clearly conveyed
 the message that the Department of Labor did not think the subject was
 negotiable, and insisted that there was no obligation to negotiate in
 this case (Tr. 145-146).  There was a specific refusal to negotiate
 concerning procedures management would use to effect any furlough (Tr.
 144-145, R. Exh. 9 at 6-7, Tr. 227-228, 229).  /8/
 
    Respondent's Refusal to Negotiate
 
    The parties stipulated that the continuing resolution was signed into
 law by the President at about 3:45 p.m. on December 15th (Tr. 315).
 Respondent's representatives were closely monitoring the passage of the
 legislation right up to the point of signature, and were well aware of
 the restrictive provisions and the possibility of the need to furlough
 MSHA employees (Tr. 438-439).  In fact, the decision to effect a
 furlough was made by Respondent's representatives on December 15th (Tr.
 438).  During the December 15th meeting Mr. Hastings reported late in
 the day that 215 employees would be furloughed, that the furlough would
 take effect on January 4, 1982, and that notices would go out to
 employees late in December (Tr. 228).  /9/ Instructions regarding the
 furlough would necessarily have been transmitted to managers in the
 field prior to December 19th, the date on which the first group of
 furlough notices were mailed;  and there were discussions with district
 and field office supervisors prior to December 18th (Tr. 440-441).
 
    The negotiating session which commenced on December 15, 1981,
 continued through December 18, 1981;  however, the parties did not
 negotiate impact and implementation issues relating to the furlough.
 The topic was mentioned intermittently by Union representatives, but
 there was no negotiation or serious discussion of the subject because
 Respondent's representatives took the position that no obligation to
 negotiate existed (Tr. 184-185, 228, 230-232).  /10/
 
    On December 16, 1981, Mr. Cole phoned Mr. Rios in Chicago to apprise
 him that a press release would be issued concerning the proposed
 furlough, and further that he would telex the document to Mr. Rios that
 same day (Tr. 50-52).  /11/ Mr. Rios reiterated his prior bargaining
 request.  Mr. Cole indicated that there would be a formal response to
 the handwritten memorandum delivered to Mr. Hastings on December 15th,
 and that the (Mr. Cole) had no authority to respond for Mr. Hastings
 (Tr. 53).  However, Mr. Cole repeated arguments previously stated by Mr.
 Hastings in opposition to the request (Tr. 54).  During the conversation
 Mr. Cole supplied a number of administrative details concerning the
 furlough, thus indicating that the Department's implementation of the
 furlough plan was nearly complete (Tr. 54-55).  /12/
 
    In a further effort to obtain information concerning the furlough,
 Mr. Rios unsuccessfully attempted to phone Mr. Cole on December 15th or
 December 16th to request a list of names of any MSHA employees selected
 for furlough, and their office assignments (Tr. 49-50).  The request was
 made to an assistant of Mr. Cole's who agreed to advise Mr. Cole of the
 request.  /13/
 
    On December 18, 1981, Mr. Rios received a telephone call from Mr.
 Cole or Mr. Taub.  The caller advised that paperwork on the furlough had
 been completed, /14/ that the Union would be receiving official notice
 concerning the furlough by telex that day, and that the press release
 transmitted on December 16th was not considered notice to the Union (Tr.
 60-61).  /15/ Mr. Rios again mentioned the Union's request for
 negotiations.  Although implementation of the furlough had in fact
 occurred, either Mr. Cole or Mr. Taub endeavored to leave the erroneous
 impression that the Respondent might negotiate before implementation.
 It was noted that the Respondent did not at that time think negotiations
 were required (Tr. 61-62).  The caller clearly indicated that the
 difference in position would have to be adjudicated in some manner (Tr.
 62).  The caller stated:
 
          Right now I believe that we are not going to get negotiations
       but we will reply to your written request (Tr. 62).
 
    A letter dated December 18, 1981 was telexed to Mr. Rios, ostensibly
 as a belated post-implementation official notice of the furlough
 decision, although the Respondent had previously given earlier oral and
 written notice of the action (G.C. Exh. 6), and had in fact accepted for
 later reply, the Union's December 15th bargaining request.  The December
 18th letter included no reply to the December 15th bargaining request.
 
    On December 22, 1981, Mr. Taub phoned Mr. Rios and advised that the
 bargaining request would not be honored by the Respondent (Tr. 71-72,
 102, 350).  During this conversation Mr. Taub advised Mr. Rios that Mr.
 Rios' earlier request (on December 15th or 16th) for a list of names of
 MSHA employees selected for furlough would not be granted because the
 Department of Labor considered the information exempt under the
 provisions of the Privacy Act (Tr. 348-349).
 
    The Union subsequently mailed to the Respondent, a second formal
 impact and implementation bargaining request in the form on a letter
 dated December 18, 1981, addressed to Mr. Hastings by Mr. D. L. Coleman,
 a Union Vice-President acting on behalf of Mr. Rios (G.C. Exh. 7).  This
 letter, coinciding with the date on which final notices were mailed to
 MSHA employees not previously notified on December 19, 1981, was
 followed on December 29, 1981, with the filing of a formal charge
 alleging a failure to bargain on impact and implementation (G.C. Exh.
 1(a)).  /16/
 
    The administrative machinery set in motion on December 19, and 28,
 1981, with the transmission of formal notice to MSHA employees selected
 for furlough, continued without interruption;  and as mandated the
 period of furlough commenced for all affected employees on January 4,
 1982.  The record is clear that impact and implementation bargaining
 negotiations, in response to the request, did not occur prior to the
 filing of the charge, and further, that negotiations have not occurred
 since.  A subsequent exchange of correspondence following receipt of the
 Union's December 28th letter was pursued by the parties in an effort to
 reach an accommodation on the issues posed by the filing of the charge.
 This exchange is not deemed relevant and is given no consideration in
 connection with the disposition of this case.
 
                        Discussion and Conclusions
 
    Under the provisions of Section 7106(a)(2)(A) of the Statute,
 management officials have the authority "to hire, assign, direct,
 layoff, and retain employees in the agency, or to suspend, remove,
 reduce in grade or pay, or take other disciplinary action against such
 employees . . . " Section 7106(a)(2)(B) gives management officials the
 right "to assign work, . . . and to determine the personnel by which
 agency operations shall be conducted. . . . " Also, Section 7106(b)(1)
 provides that "the numbers, types, and grades of employees or positions
 assigned to any organizational subdivision, work project, or tour of
 duty . . . " are negotiable only at the election of the agency.
 However, Sections 7106(b)(2) and (b)(3) of the Statute impose an
 obligation on agencies to give reasonable notice of an intention to
 effectuate changes in the conditions of employment, /17/ and to provide
 an opportunity to negotiate with respect to procedures designed for
 exercising these management rights, and with respect to arrangements for
 employees adversely affected;  that is, on the impact and implementation
 of such management decisions.
 
    In this case the Union was apprised of the decision to furlough as
 early as the afternoon of December 15, 1981, during collective
 bargaining on other unrelated issues.  A bargaining request filed with
 the Respondent early on December 15th in anticipation of the decision to
 furlough was accepted by the Respondent without reservation, and
 retained for appropriate action by the Respondent.  It was retained
 after finalization (on December 15th) of the MSHA decision to furlough
 employees, with the full understanding that the Respondent would reply
 to the request.  Despite the request, the Respondent effectuated the
 furlough of bargaining unit employees without first bargaining on impact
 and implementation.  In fact, it clearly appeared that steps toward
 eventual implementation were proceeding apace even while repeated
 requests were being made by the Union to persuade the Respondent to
 bargain, and while the Respondent was refusing to accede to the Union's
 requests.  This refusal to bargain was in large measure, admitted by the
 Respondent's representatives (Tr. 300, 320-323;  Respondent's Brief at
 16 and 21).  In fact, the Respondent's post-hearing brief acknowledged
 that during the pertinent period, representatives of the Respondent were
 in doubt as to what subjects were negotiable under the Statute
 (Respondent's Brief at 12).
 
    Counsel representing the Respondent argues that the furloughs in
 question may properly be classified as adverse actions within the
 meaning of Article 14 of the collective bargaining agreement, and that
 since procedures relating to adverse actions were the subject of prior
 collective bargaining negotiations, the Union effectively waived any
 bargaining rights pertaining to the MSHA furloughs.  Article 14 merely
 refers to Federal Personnel Manual provisions relating to adverse
 actions, and provides certain general procedural protections for
 bargaining unit employees.  This Article does not address the specific
 issues raised as part of the Union's request to bargain on impact and
 implementation.  In this case the main concern of the Union pertained to
 the procedures which MSHA management officials would utilize to exercise
 the management right of selecting employees to be furloughed, and
 appropriate arrangements which might be negotiated to provide for
 affected employees, as distinct from procedural matters referred to in
 Article 14.
 
    The Authority has made it clear that an agency must meet its
 obligations to negotiate prior to making changes in established
 conditions of employment during the term of a collective bargaining
 agreement, absent a clear and unmistakable waiver of bargaining rights.
 Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA No.
 2 (1981);  Department of the Air Force, United States Air Force Academy,
 6 FLRA No. 100 (1981).  The language of Article 14 is not inconsistent
 with, and does not show clearly and unmistakably that the Union waived
 its rights to bargain over all issues which might touch upon the general
 subject of furloughs.  That is, there was no showing that the bargaining
 history of the parties involved a clear and unmistakable waiver of the
 right to bargain on all impact and implementation issues pertaining to
 the MSHA furlough.  The Authority has held that Union proposals designed
 to insure the use of equitable furlough procedures are negotiable if
 they do not interfere with management rights under Section 7106.
 National Treasury Employees Union, 7 FLRA No. 42 (1981).  Here the Union
 was not, prior to implementation, or thereafter, provided with an
 opportunity to negotiate bargainable proposals relating to impact and
 implementation of the decision to furlough.  The entire matter was
 deferred by the Respondent in favor of almost immediate implementation
 of the decision to furlough.  It should be noted that this is not a case
 where good faith bargaining commenced and non-bargainable issues were
 interposed by the Union.  Rather, it is one where bargaining was not
 permitted in the first instance.  Numerous appropriate areas of interest
 might have engaged those involved in such a bargaining process.  The
 mere fact that there was a showing that Union representatives did,
 during unrelated bargaining sessions, object to the MSHA decision to
 furlough, would not, without more, establish that the Union would have
 raised only non-negotiable issues during bargaining on impact and
 implementation.
 
    Counsel representing the Respondent also contends that the
 Respondent's conduct was in compliance with the provisions of Article 2,
 Sec. 5(A), (B) and (C) of the collective bargaining agreement, and that
 at most, the course of conduct pursued by the Respondent involved only a
 differing and arguable interpretation of these contractual provisions.
 In such cases an aggrieved party's remedy would lie within the grievance
 and arbitration procedure in the negotiated agreement rather than unfair
 labor practice procedures.  If this case involved essentially an
 interpretation of the collective bargaining agreement in relation to
 whether the Respondent met its statutory bargaining obligation to
 bargain, the Respondent would be correct.  Food Safety and Quality
 Service, United States Department of Agriculture, Washington, D.C., 7
 FLRA No. 103 (1982);  Internal Revenue Service and Brookhaven Service
 Center, 6 FLRA No. 127 (1981).  However, that is not the case here.  The
 Respondent's violation of obligations posed by Article 2 is clear and
 patent and poses no issue of contract interpretation.
 
    Article 2, Sec. 5(A), (B) and (C) provides:
 
          Section 5 - Management Proposals for Change During the Term of
       the Agreement
 
          (A) Management agrees to transmit to the NCFLL proposed changes
       relating to personnel policies, practices, and matters affecting
       working conditions of bargaining unit employees, or which impact
       on them, proposed during the term of this Agreement and not
       covered by this Agreement, as far in advance as possible.
 
          (B) Upon receipt of such a proposed change from Management, the
       NCFLL may, within 15 working days, request negotiations concerning
       the proposed change.
 
          (C) Upon timely request from the NCFLL, the parties shall meet
       and confer within 30 calendar days concerning any negotiable
       aspects of the proposed change and/or its impact on bargaining
       unit employees.
 
    Respondent's argument mistakenly assumes that implementation of a
 proposed change may preclude bargaining, and also assumes facts not
 established by the record.  Interestingly, the Respondent contends that
 official notice of the furlough was not given until December 18, 1981,
 and further that the Union's bargaining request was not transmitted by
 the Union until December 28, 1981.  /18/ Respondent argues that under
 the provisions of Article 2, Sec. 5, the respondent had 30 days from
 December 28th within which to commence bargaining.  The record reflects
 that the first notice of the proposed furlough was given orally to Union
 representatives on December 15th.  The bargaining request was also
 received by the Respondent on December 15th.
 
    Article 2, Sec. 5(B) provides the Union with a 15 day period in which
 to request negotiations concerning proposed changes.  This requirement
 was met on the day on which notice of the change was received.  Article
 2, Sec. 5(C) provides a 30 day period in which to commence bargaining,
 "concerning any negotiable aspects of the proposed change and/or its
 impact on bargain unit employees." The Respondent cannot successfully
 argue that the furlough was being proposed by the Respondent during
 Respondent's implementation of the decision to furlough.  Thus, it is
 clear that the Respondent was acting in clear violation of Article 2,
 Sec. 5(C), by failing to commence bargaining on the "proposed change,"
 before the expiration of the 30 day period provided.  Moreover, it is
 abundantly clear that the negotiated agreement contemplates bargaining
 on negotiable issues prior to change.  If this were not so, the word
 "proposed" would not have been utilized to describe management proposals
 in Article 2, Sec. 5(A), (C) and (C).  /19/ Respondent's conduct was not
 even arguably in compliance with Article 2, Sec. 5 of the collective
 bargaining agreement.
 
    From the foregoing and other evidence in the record it is concluded
 that the Respondent violated Sections 7116(a)(1) and (5) of the Statute
 as alleged in the complaint.
 
    As noted, counsel representing the General Counsel and counsel
 representing the Charging Party seek a cease and desist order, the
 posting of an appropriate notice, mailing of such notice to furloughed
 employees no longer employed by the Respondent;  and lastly, that
 employees affected by the furlough be reimbursed for any and all pay
 lost as a result of the furlough.  These parties do not seek a status
 quo ante remedy.  /20/
 
    Issues relating to back pay are governed by the Back Pay Act of 1966
 as amended by the Civil Service Reform Act of 1978 (5 U.S.C. 5596).
 Section 5596(b)(1)(A)(i) now provides:
 
          (b)(1) An employee of an agency who, on the basis of a timely
       appeal or an administrative determination (including a decision
       relating to an unfair labor practice or a grievance) is found by
       appropriate authority under applicable law, rule, regulation, or
       collective bargaining agreement, to have been affected by an
       unjustified or unwarranted personnel action which has resulted in
       the withdrawal or reduction of all or part of the pay, allowances,
       or differentials of the employee--
 
          (A) is entitled, on correction of the personnel action, to
       receive for the period for which the personnel action was in
       effect--
 
          (i) an amount equal to all or any part of the pay, allowances,
       or differentials, as applicable which the employee normally would
       have earned or received during the period if the personnel action
       had not occurred, less any amounts earned by the employee through
       other employment during that period;  . . .
 
    Counsel for the General Counsel and counsel representing the Charging
 Party argue persuasively on the basis of the factual picture presented,
 that a back pay award is the only means of fully insuring that the
 Respondent will fulfill bargaining obligations in the future.  However,
 in order for retroactive back pay to be authorized under the Back Pay
 Act, there must be a determination not only that the employee has
 suffered an unjustified or unwarranted personnel action within the
 meaning of the Act, but also that such action directly resulted in the
 denial of pay that the aggrieved employee would otherwise have received.
  Picatinny Arsenal, U.S. Army Armament Research and Development Center,
 Dover, New Jersey, 7 FLRA No. 109 (1982);  American Federation of
 Government Employees, Local 2811, 7 FLRA No. 97 (1982);  Veterans
 Administration Hospital, 4 FLRA No. 57 (1980).
 
    Here counsel for the General Counsel has established that
 implementation of the MSHA furlough imposed unjustified and unwarranted
 personnel actions upon affected employees.  However, in order to grant a
 back pay award the record must show that but for Respondent's failure or
 refusal to negotiate in accordance with the Statute, employees
 furloughed would not have sustained a loss of pay.  It is not possible
 to make such a "but for" finding in this case because it is not possible
 to determine whether or not all affected employees would have been
 furloughed had negotiations occurred.  To put it another way, back pay
 would not be appropriate in the absence of a finding that all furloughed
 employees would have remained on the payroll had negotiations occurred.
 It is not possible to draw this conclusion from the record.
 
    The General Counsel's request that notices be mailed "to all
 employees who were furloughed in January 1982, if they are presently not
 working for Respondent for any reason . . . " would not be appropriate
 in this case.  There would be no basis for mailing notices to
 individuals no longer members of the bargaining unit, and there would be
 no basis for such a mailing to Respondent's absent employees without a
 specific showing of unusual circumstances.  See, Department of the Army,
 Fort Bragg Schools, 3 FLRA No. 57 (1980).  Here there was no showing
 that specific bargaining unit employees would be absent, nor was there
 any other indication of special circumstances which would justify a
 mailing of the type requested.
 
    Having found that the Respondent violated Sections 7116(a)(1) and (5)
 of the Statute, I recommend that the Authority issue the following
 order:
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and Section 7118 of the Federal
 Service Labor-Management Relations Statute, it is hereby ordered that
 the Mine Safety and Health Administration of the United States
 Department of Labor shall:
 
    1.  Cease and desist from:
 
          (a) Furloughing bargaining unit employees of the Mine Safety
       and Health Administration represented exclusively by the National
       Council of Field Labor Locals, American Federation of Government
       Employees, AFL-CIO, without first notifying the exclusive
       representative and affording it the opportunity to negotiate to
       the extent consonant with law and regulations concerning
       procedures relating to implementation of any such decision to
       furlough, and concerning appropriate arrangements for employees
       adversely affected.
 
          (b) In any like or related manner, interfering with,
       restraining, or coercing employees in the exercise of their rights
       assured by the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Upon request, bargain concerning procedures relating to the
       implementation of the decision to furlough Mine Safety and Health
       Administration employees during the period January 4, 1982 through
       February 2, 1982, and concerning appropriate arrangements for
       employees adversely affected.
 
          (b) Post at its facilities wherever bargaining unit employees
       are located, 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 Assistant
       Secretary, Mine Safety and Health Administration, United States
       Department of Labor, and shall be posted and maintained for 60
       consecutive days thereafter in conspicuous places, including all
       bulletin boards and other places where notices are customarily
       posted.  Reasonable steps shall be taken to insure that said
       notices are not altered, defaced, or covered by any other
       material.
 
          (c) Notify the Federal Labor Relations Authority in writing
       within 30 days from the date of this order as to what steps have
       been taken to comply herewith.
 
                                       /s/ LOUIS SCALZO
                                       LOUIS SCALZO
                                       Administrative Law Judge
 
    Dated:  July 1, 1982
    Washington, D.C.
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT furlough bargaining unit employees of the Mine Safety and
 Health Administration represented exclusively by the National Council of
 Field Labor Locals, American Federation of Government Employees,
 AFL-CIO, without first notifying the exclusive representative and
 affording it the opportunity to negotiate to the extent consonant with
 law and regulations concerning procedures relating to implementation of
 any decision to furlough, and concerning appropriate arrangements for
 employees adversely affected.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Statute.
 
    WE WILL upon request, bargain concerning procedures relating to the
 implementation of the decision to furlough Mine Safety and Health
 Administration employees during the period January 4, 1982 through
 February 2, 1982, and concerning appropriate arrangements for employees
 adversely affected.
                                       . . .
                                       (Agency or Activity)
 
    Dated:  . . .  By:  . . .
 
                         (Signature)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting and must not be altered, defaced or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director of the Federal Labor Relations Authority, Region III,
 whose address is:  1111 18th Street, N.W., Suite 700, Washington, D.C.,
 20036, and whose telephone number is:  (202) 653-8452.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Respondent also requested modification of the Judge's
 recommended Order, and the Charging Party filed an opposition thereto.
 
    /1A/ The Council is an amalgamation of 34 Locals chartered by the
 AFGE.  It is recognized as the exclusive bargaining representative for
 certain employees of the Respondent including certain employees of MSHA.
  A number of MSHA employees furloughed were members of the bargaining
 unit.
 
 
    /2/ 5 U.S.C. 7106(b)(2) and (3).  This obligation is oftentimes
 referred to as impact and implementation bargaining.
 
 
    /3/ Counsel representing the General Counsel moved to correct the
 transcript as follows:  (TABLE OMITTED)
 
    The motion to correct is granted.  The following additional
 corrections are also made in the hearing transcript:  (TABLE OMITTED)
 
 
    /4/ The furlough, classified as a "furlough of 30 days or less," was
 based on authority contained in 5 C.F.R.Part 752.
 
 
    /5/ The Union team convened from various parts of the nation.  Mr.
 Stewart traveled from Los Angeles, Mr. Knittle from Denver, Mr. Furlong
 from Tulsa, and Mr. Davis from Baltimore.
 
 
    /6/ The record does not reflect that the Respondent was in fact
 refusing to bargain with the Union on impact and implementation at this
 point.
 
 
    /7/ Section 7106(a)(2)(D) of the Statute provides a basis for taking
 unilateral action in accordance with applicable laws in cases where
 action is "necessary to carry out the agency mission during
 emergencies." Counsel for the Respondent stipulated that Respondent
 would not be relieved of any bargaining obligation because of a need to
 implement the decision to furlough on an emergency basis (Tr. 6, 66-68).
 
 
    /8/ Although the record indicates a Union effort to question the
 decision to furlough employees, an issue which would not be negotiable;
 it also clearly reflects Respondent's December 15th refusal to bargain
 concerning impact and implementation issues.
 
    Of interest in connection with this refusal is General Counsel
 Exhibit 11, a Memorandum to Directors of Personnel dated November 3,
 1981, from the Office of Personnel Management.  The memorandum provides
 guidance in the use of furloughs for 30 days or less under adverse
 action procedures set out in 5 C.F.R.Part 752.  At page 2 it is noted
 that "(a)gency management is required to afford unions an opportunity to
 collectively bargain on the procedures which will be observed in
 exercising this authority (5 U.S.C. 7106(b)(2)) and on appropriate
 arrangements to be made for employees adversely affected by the agency's
 decision (5 U.S.C. 7106(b)(3))."
 
 
    /9/ Testimony offered by Respondent's witnesses to the effect that
 the Respondent's Office of Management Relations was not aware of issues
 posed by the Union's bargaining request until December 16th was
 discredited in light of other persuasive proof adduced by counsel for
 the Respondent and counsel for the General Counsel.
 
 
    /10/ Counsel representing the Respondent attached the credibility of
 Mr. Davis and Mr. Stewart with respect to their report of the Union's
 continued assertion of interest in impact and implementation bargaining
 during the period December 16 through 18, 1981.  Heavy reliance is
 placed on alleged inconsistencies in Mr. Davis' testimony and a written
 statement given by Mr. Davis to Authority Investigators.  A careful
 reading of Mr. Davis' statement reflects no real conflict.  This
 evaluation and interpretation of the written statement is supported by
 the testimony of Mr. Steward as well as many other persuasive elements
 in the record indicating the Union's continued interest in completing
 impact and implementation bargaining during the ongoing bargaining
 sessions.
 
 
    /11/ G.C. Exh. 5.  The document was received by Mr. Rios on December
 16th.
 
 
    /12/ Mr. Rios' testimony is relied upon to supply an account of the
 December 16th conversation.  Mr. Cole could not recall details of the
 conversation (Tr. 287-288).
 
 
    /13/ Although the complaint alleges no violation of Section 7116 of
 the Statute based upon a refusal to supply information falling within
 the purview of Section 7114(b)(4), and although it is unnecessary to
 determine whether such a violation occurred, it is noted that the
 Respondent did in fact refuse to supply the information requested (Tr.
 347-350).
 
 
    /14/ As previously noted, official notice of the furlough was mailed
 to the first group of MSHA employees on December 19th.
 
 
    /15/ Mr. Cole could not recall a conversation on this date.  Mr. Taub
 denied that he had a conversation on this date with Mr. Rios, and Mr.
 Rios' statement to investigators does not specifically mention this
 telephone call.  However, Mr. Rios was a credible witness, and the
 record reflects no reason to discredit Mr. Rios' testimony.  Moreover,
 other credible elements in the record indicate that the report received
 by Mr. Rios was substantially an accurate picture of what was then
 happening with respect to the furlough.
 
 
    /16/ The December 28th communication, sent by mail, was not delivered
 until January 5, 1982.  The date of preparation and the date of mailing
 is not reflected in the record.  However, the date of the letter,
 together with the content thereof indicates that the document preceded
 the actual filing of the charge.
 
    The Respondent argues that this communication was the Union's first
 bargaining request.  There is no basis in the record to support this
 contention.  The Respondent accepted the handwritten memorandum
 delivered to Mr. Hastings on December 15, 1981, following oral notice of
 the possibility of proposed furlough, as a bargaining request;  and both
 Respondent and the Union thereafter acted on the assumption that it was
 a bargaining request.
 
 
    /17/ The Respondent interposes no argument in opposition to the
 contention that the furloughs did effect a change in working conditions
 of bargaining unit employees, and further that the change did in fact
 have a substantial impact on the terms and conditions of employment.
 Nevertheless, it is noted that this element of the case is clearly shown
 by the fact that employees furloughed received no pay during the period
 of the furlough, by the fact that affected employees were quite limited
 with respect to the type of outside employment they might pursue by
 conflict of interest regulations, and by the fact that the work of
 remaining MSHA employees in offices affected would necessarily have been
 altered by the deletion of certain previously performed work activity.
 
 
    /18/ Even assuming that the Respondent did not give notice until
 December 18, 1981, it can hardly be argued that such notice would have
 been reasonable in the light of Respondent's completion of furlough
 notices on December 18th, and implementation of the initial phase of the
 decision on December 19, 1981, with the mailing of furlough notices to
 the first group of affected employees.