18:0642(77)CA - Air Force, HQ 93rd Combat Support Group (SAC), Castle AFB, CA and NAGE Local R12-91 -- 1985 FLRAdec CA



[ v18 p642 ]
18:0642(77)CA
The decision of the Authority follows:


 18 FLRA No. 77
 
 DEPARTMENT OF THE AIR FORCE 
 HEADQUARTERS 93rd COMBAT 
 SUPPORT GROUP (SAC) 
 CASTLE AIR FORCE BASE, CALIFORNIA 
 Respondent 
 
 and 
 
 NATIONAL ASSOCIATION OF GOVERNMENT 
 EMPLOYEES, LOCAL R12-91 
 Charging Party
 
                                            Case No. 9-CA-967
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had engaged in
 certain unfair labor practices and recommending that it be ordered to
 cease and desist therefrom and take certain affirmative action.  The
 Judge further found that the Respondent had not engaged in certain other
 alleged unfair labor practices and recommended dismissal of the
 complaint with respect to them.  Exceptions to the Judge's Decision were
 filed by the Respondent, and the General Counsel filed cross-exceptions
 to the Judge's Decision and an opposition to the Respondent'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, only to the extent
 specifically referred to herein.
 
    The Authority adopts the Judge's conclusion that the Respondent did
 not, in the specific circumstances of this case, violate section
 7116(a)(1) and (5) of the Statute, as alleged in the complaint, by
 terminating a past practice without first negotiating at the request of
 the Charging Party (the Union) concerning its decision.  Thus, the
 Authority agrees with the Judge's finding that, by virtue of the
 parties' negotiated agreement, the Union waived any right it may have
 had to bargain concerning the Respondent's decision to terminate the
 parties' past practice of permitting children of employees of the
 Respondent's Child Care Center to attend the Center without charge.
 
    However, contrary to the Judge, the Authority finds that the
 Respondent did not violate the Statute by failing to bargain with the
 Union concerning the impact and/or implementation of that decision.
 Thus, following notice from the Respondent that it intended to terminate
 the practice of providing free child care for the children of Child Care
 Center employees at the start of the new year, i.e., in about three
 weeks, the Union met with the Respondent.  The Respondent explained that
 its decision was based upon the opinion of its Staff Judge Advocate that
 the existing practice violated Air Force Regulations.  The Union
 persistently argued the inequities of the decision and requested that
 the present practice be maintained, but the Respondent remained firm in
 its decision.  The Union asked that it be given a "firm date" as to the
 implementation, a "clean copy" of the Staff Judge Advocate's memo on the
 subject, and an opportunity to discuss the matter with the Base
 Commander.  The Respondent agreed to the first two of these requests,
 but was silent as to the third.  The Respondent subsequently implemented
 the change with regard to withdrawal of free child care on the date
 planned, consistent with its notice to the Union.  The Union met with
 the Base Commander thereafter;  the Respondent's decision to change the
 practice was further discussed but remained in place.
 
    The Union did not, during these meetings, request to bargain about
 the impact and/or implementation of the Respondent's change in past
 practice, but insisted that such past practice remain unchanged.  /1/
 Moreover, the complaint does not allege a violation with regard to
 impact or implementation.  /2/ In these circumstances, the Authority
 finds that it need not reach the question, as does the Judge, with
 regard to impact and implementation.  Therefore, the Authority shall
 order that the complaint be dismissed.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 9-CA-967 be, and it
 hereby is, dismissed in its entirety.  
 
 Issued, Washington, D.C., June 21, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Lt. Col. Gordon B. Finley, Jr., Esq.
    For the Respondent
 
    Stefanie Arthur, Esq.
    For the General Counsel
 
    Peggy Whitaker
    For the Charging Party
 
    Before:  WILLIAM NAIMARK, Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    Pursuant to a Complaint and Notice of Hearing issued on July 1, 1981
 by the Regional Director for the Federal Labor Relations Authority, San
 Francisco, California Region, a hearing was held before the undersigned
 on August 19, 1981 at San Francisco, California.
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute (herein called the Statute or the Act).  It is based
 on an amended charge filed on April 9, 1981 by National Association of
 Government Employees, Local R12-91 (herein called the Union) against
 Department of the Air Force, Headquarters 93rd Combat Support Group
 (SAC), Castle Air Force Base, California (herein called the Respondent).
 
    The Complaint alleged that on or about January 1, 1981 Respondent
 abolished its practice of permitting children of employees of the Child
 Care Center to attend the Center without payment;  that this change was
 effected prior to completion of bargaining with the Union-- all in
 violation of Sections 7116(a)(1) and (5) of the Statute.
 
    Respondent filed an answer on July 17, 1981 which denied the
 essential allegations in the Complaint as well as the commission of any
 unfair labor practices.
 
    All parties were represented at the hearing.  Each was afforded full
 opportunity to be heard, to adduce evidence, and to examine as well as
 cross-examine witnesses.  Thereafter, briefs were filed with the
 undersigned which have been duly considered.  /3/
 
    Upon the entire record herein, from my observation of the witnesses
 and their demeanor, and from all of the testimony and evidence adduced
 at the hearing, I make the following findings and conclusions:
 
                             Findings of Fact
 
    1.  At all times material herein the Union has been, and still is the
 collective bargaining representative of all non-appropriated fund
 employees at Castle Air Force Base, California.
 
    2.  A non-appropriated fund is a self-sustaining organization which
 operates from the profit made on the base derived from stores, snack
 bars and some appointed fund monies.  Child care is a non-appropriated
 fund activity.
 
    3.  Both the Union and Respondent are parties to a written collective
 bargaining agreement which was executed on January 16, 1975 and is still
 in effect. The said agreement provides in Article II, "MATTERS FOR
 CONSULTATION AND AGREEMENT", the following:
 
          Section 1.  It is agreed that matters appropriate for
       consultation and negotiation between the parties are policies and
       practices related to working conditions which are within the
       discretion of the Employer including, but not limited to such
       matters as safety, training, labor-management cooperation,
       employee services, methods of adjusting grievances, granting of
       leave, promotion plans, demotion practices, reduction-in-force
       practices, and hours of work.
 
          Section 2.  It is agreed that the fact that certain conditions
       are reduced to writing does not alleviate the responsibility of
       either party to meet with the other to discuss and consult on
       appropriate matters not originally covered in this Agreement.
 
          Section 3.  It is further agreed and understood that any prior
       benefits and practices and understandings which have been mutually
       acceptable to the Employer and the Union, but which are not
       specifically covered by this Agreement may be changed by the
       Employer.  If the Union requests, consultations on such changes
       will be held with the General Manager.
 
    4.  Respondent operates a Child Care Center under the Morale, Welfare
 and Recreation (MWR) Division at the Base.  Between 1960 and 1980 a
 practice existed whereby children of employees of this Center were
 permitted to attend free of charge while the employee-parent was at
 work.
 
    5.  In a memorandum dated December 2, 1980 /4/ Lt. Colonel David L.
 Roberts, Chief of the MWR Division, notified Child Care Center Director
 Lois McGee that a change in the aforesaid practice should be made.
 Roberts stated that, based on a memo from the Staff Judge Advocate's
 Office, it was determined that nursery employees at the Center should
 not be allowed to care for their own children thereat without paying the
 usual child care fee.  A copy of the Staff Judge Advocate's memo was
 attached to Roberts' memorandum.  McGee testified she received the said
 documents prior to December 10.
 
    6.  The Staff Judge Advocate's memo was dated September 10 and signed
 by Captain Larry J. Olson, Chief, Civil Law.  It stated that Olson
 concluded the nursery employees at the Center should not be allowed to
 care for their children thereat without paying usual child care fees.
 He based his conclusion on AFR 34-3, Volume III, paragraph 4-10, which
 provides:
 
          "Welfare funds may be used to provide child care services at no
       cost to volunteers when they serve the Air Force Community,
       provided payment is not made to the volunteers.  If the base child
       care center is operated as a welfare fund entity, income is
       credited to the center and expensed to the using activity (such as
       family services)."
 
 Olson declared that this Regulation shows an intent to provide child
 care services only to children of volunteers and not to compensated
 employees.  He also referred to Air Force Regulation 215-1, Volume VI,
 paragraph 5-1(b), which establishes the ratio of children to staff
 permitted at Child Care Centers.  Thus, Olson stated, allowing children
 of employees to attend without charge affects the Center's capacity to
 accept children of paying parents.  Moreover, the floor space required
 per child is set forth in AFR 215-1, Vol. VI, paragraph 8-1(a).
 
    7.  Air Force Regulation 215-1, 4(d) provides, in substance, that no
 one, including MWR assigned personnel and employees, is authorized
 discounts on MWR merchandise, services, or fees, unless authorized by
 Air Force 215 series publications.
 
    FPM Supplement 532-2 in Subchapter S1-3(b)(1) provides:
 
          "There will be equal pay for substantially equal work for all
       prevailing rate employees who are working under similar conditions
       of employment in all agencies within the same local wage area."
 
    8.  McGee spoke to the Child Care Center employees on December 7, and
 she informed them of the impending changes regarding paying for the care
 of their children at the Center.  The Director also told the employees
 that possibly it would be effective the first of the year.
 
    9.  On December 8 McGee telephoned Frank Luzania, president of the
 Union, and inquired whether he was aware that Respondent was about to
 change its practice of not charging for child care of employees'
 children.  Luzania asked what the practice had been, and the Director
 explained it to him.  Whereupon the union official said he wanted to
 talk to her and the employees.  Luzania visited McGee at the Center that
 day and the Director explained the past practice again as well as the
 contemplated change to be effective about January 1, 1981.  The record
 also reflects that McGee showed him the memo from Roberts, dated
 December 2, 1980, which was posted on the bulletin board.  Luzania
 testified there was no writing on the memo and it was unsigned.
 
    10.  Record facts reveal that on December 5 Judith Newman, NAP
 Personnel Coordinator at the base, received a memo from Roberts asking
 her to set up a meeting between the Respondent and the Union to discuss
 proposed changed regarding child care.  Newman telephoned Luzania on
 December 10 /5/ and requested he visit her.  Whereupon the Union
 president met with the Coordinator and the latter explained the proposed
 changes regarding child care.  Luzania was given a copy of the Staff
 Judge Advocate's memo, and a meeting was set up for December 12 to
 discuss the matter with Colonel Roberts.
 
    11.  On December 12 union president Luzania met with Colonel Roberts
 and Personnel Coordinator Newman.  Upon being asked for his opinion
 regarding the planned change, Luzania replied it was unfair;  that the
 Staff Judge Advocate's memo merely referred to volunteers not being
 required to pay for child care at the Center and it didn't recite that
 employees had to pay for such care;  and that no compelling need existed
 for the change.  Roberts stated that under the law children of employees
 could not receive free care;  that the present practice to the contrary
 was unlawful and had to be changed.  The union president inquired when
 it would take effect, and Roberts replied it would probably be about
 January 1, 1981.  Luzania asked the colonel to let him know as to a firm
 date, and he also expressed a desire to speak to Commander Anderson.
 The union president made no counter proposals, but insisted that
 management should maintain the present practice regarding child care.
 Then Roberts stated it must be revised.  Luzania said he would hate to
 file an unfair labor practice charge.  Colonel Roberts agreed, however,
 to advise the union official as to the firm date.  He also gave Luzania
 a copy of the Staff Judge Advocate's memo, but promised to furnish him
 with a clearer copy later on.  The record indicates Roberts never
 contacted Luzania regarding a firm date for the implementation of the
 change.  Neither did he furnish the union agent with a clear copy of the
 aforesaid memo, nor was any meeting arranged with Base Commander
 Anderson prior to the change.
 
    12.  On December 16 Director McGee posted the December 2 memo, which
 she received from Colonel Roberts, for the attention of the employees.
 At the bottom of said memo she wrote the following:
 
          "Child care fees for employees children will take effect Jan.
       4, 1981."
 
    13.  The change in allowing employee's children free care was
 effected on January 1, 1981.  Luzania learned about it when he
 telephoned McGee on January 2, 1981.
 
    14.  On February 2, 1981 a meeting was held between the parties to
 discuss the change.  Commander Anderson and Newman attended, and the
 union was represented by Luzania and national representative Frank
 Benites.  Anderson suggested reimbursing employees for child care
 expenses paid during January, as well as deferring the new plan for 30
 or 60 days.  Benites would not accept this proposal, and he indicated
 the parties were in basic disagreement.
 
                                Conclusions
 
    The principal issues for determination as framed herein are as
 follows:  (1) whether the Union waived its right to bargain over the
 decision to change the past practice regarding child care for employee's
 children by virtue of the written contract between the parties;  (2)
 assuming arguendo, Respondent has an obligation to bargain with respect
 to the impact and implementation of the change, whether it satisfied
 this duty by proper notification to the Union and meeting with the
 bargaining representative in respect thereto.
 
    (1) General Counsel insists that the Union herein was entitled to
 bargain over the decision by Respondent to change its practice of
 providing free child care to employees' children.  It contends that the
 subject of child care is a negotiable one, and that the Union never
 waived its right in that regard under the collective bargaining
 agreement.
 
    The Authority has had occasion to consider the question as to whether
 the establishment of child care facilities is a bargainable matter.  In
 American Federation of Government Employees, AFL-CIO, Local 32 and
 Office of Personnel Management, 6 FLRA No. 76 the union therein proposed
 that "management shall establish free daycare facilities for the
 children of OPM employees." It was held that such a proposal was a
 condition of employment and a negotiable subject.  Further, the
 Authority rejected the agency's defense that the proposal interfered
 with the right of the agency to determine its budget under Section
 7106(a)(1) of the Statute.  Thus, I agree that the subject of free child
 care for children of Respondent's employees is itself a bargainable
 matter.
 
    In asserting no waiver existed herein and that the employer was
 required to bargain with the Union regarding the substance of the change
 in free child care, General Counsel relies heavily on the decision in
 Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA No.
 2.  The Authority therein emphasized that a party may not unilaterally
 change existing conditions of employment during the contract term
 without affording the bargaining representative notice of the change and
 an opportunity to negotiate unless the representative had clearly and
 unmistakably waived its bargaining rights.  In the cited case the
 employer, who changed its duty hours for employees, contended that the
 union had waived its right to bargain over such change pursuant to
 certain contractual provisions.  It was provided on the agreement that
 when a change of such nature was made by the employer, the latter would
 notify the bargaining agent at least 14 days in advance, and that the
 change would continue for at least two pay periods.  It was held that
 such language does not show a clear waiver of the right to bargain
 regarding a change in duty hours.  Moreover, the Authority declared that
 a waiver will not be found from the fact that an agreement omits
 specific reference to a right, or that a labor organization has failed
 in negotiations to obtain protection with respect to certain of its
 rights.  cf. NASA Kennedy Space Center, Florida, A/SLMR No. 223.
 
    In the case at bar Article II, Section 3 of the agreement between the
 parties provides, in substance, that any prior benefits and practices
 mutually acceptable, which are not covered by the agreement, "may be
 changed by the Employer".  Further, if the Union requests, consultation
 on such changes will be held with the General Manager.  The General
 Counsel contends that nothing in this language obviates the necessity
 for Respondent to give advance notice to the Union of the proposed
 change and afford the representative an opportunity to bargain regarding
 the decision to effect the change.
 
    As reflected in the cases cited, supra, a waiver of any bargaining
 right must be clear and not left to inference.  No such waiver will be
 found in the absence of express language to that effect.  While General
 Counsel argues that no waiver was spelled out in Article II, Section 3
 of the contract herein, I disagree.  The clause clearly stated that
 practices not covered by the agreement may be changed by the employer.
 It is not ambiguous, nor are its terms subject to differing
 interpretations.  It affords the Respondent the right to alter such
 practices without bargaining as to the decision in regard thereto.  The
 contractual language under discussion herein is quite distinguishable
 from that found in the Scott Air Force case.  The unqualified right was
 assigned the employer therein to change the duty hours.  The agreement
 merely bespoke of management's obligations when duty hours were changed.
  In the case at bar the right to change certain established practices is
 granted to management.  Thus, I conclude that, under Article II, Section
 3, the Union has waived its right to bargain as to the decision to
 change the practice regarding free child care for employees' children.
 /6/
 
    (2) It is now well established in the public sector that although an
 agency may have no obligation to bargain on a particular management
 decision, the bargaining representative must be afforded an opportunity
 to bargain as to the impact and implementation of such decision.
 Department of the Air Force, Malmstrom Air Force Base, Montana, 2 FLRA
 No. 2;  Federal Railroad Administration, A/SLMR No. 418.  Respondent
 herein contends that, based on its discussion and meetings with Union
 representative Luzania, it has met this obligation;  that by virtue of
 the said discussions an impasse was reached between the parties;  and
 that the employer was therefore at liberty to effectuate the change in
 child care practice at the base.  /7/
 
    In order to satisfy the requirement of bargaining in good faith,
 management must meet with a union, exchange views, and consider
 proposals or counter-proposals advanced by the exclusive representative.
  As stated in Federal Railroad Administration, supra, the right to
 engage in a dialogue becomes meaningful only when reasonable notice is
 afforded the union, and ample opportunity is granted it to explore
 freely the matters involved prior to taking action.  An employer must
 demonstrate, in order to comply with its duty in this regard, that it
 has discussed the issue at hand with an open mind and engaged in a "give
 and take" relationship.  Limited discussions with no attempt to reach an
 agreement is not bargaining.  See Internal Revenue Service and
 Brookhaven Service Center, IRS, 4 FLRA No. 30.
 
    Upon reviewing the entire record, I am persuaded that Respondent
 herein did not fulfill its obligation to bargain with the Union
 regarding the impact and implementation of the change in respect to free
 child care.  At the outset, and before she informed Union representative
 Luzania, Director McGee addressed the employees and told them of the
 planned change in the past practice.  The employees were advised it
 would occur about the first of the year.  Although a meeting was held,
 at Luzania's request, with Colonel Roberts on December 12 to discuss the
 proposed elimination of free care for employees' children, I am not
 convinced management bargained thereat in good faith as to the impact
 and implementation of the change.  While the Union official protested
 the contemplated action and asked Roberts for a meeting with Commander
 Anderson, no such meeting was arranged before the change was effected.
 Further, at their meeting Roberts promised to inform Luzania as to the
 firm date for the implementation, as well as furnish the Union with a
 clear copy of the Staff Judge Advocate's memo.  Neither was done.  In
 The Adjutant General's Office, Puerto Rico Air National Guard, 3 FLRA
 No. 55, the Activity failed to respond, as promised, to certain requests
 made by the union at the meeting between the parties.  It was held that
 a statement by the employer promising their responses created the
 impression that management would consider proposals regarding impact and
 implementation.  Failure to respond precluded the labor organization
 from considering the options of presenting alternative proposals.  Under
 those circumstances, the Authority concluded the Activity did not
 fulfill its duty to bargain regarding impact and implementation.
 
    It is essential that management, in meeting with the exclusive
 representatives, retain an open mind and intend to bargain regarding the
 effect of, and procedures involved in, any contemplated action.
 Respondent's conduct herein belied any such intention.  Apart from never
 responding to Luzania after the meeting on December 12-- and prior to
 implementing the change-- management failed to grant the union agent's
 request to meet with the Commander to discuss the matter further.  /8/
 The Union was foreclosed from making any suggestions as to the
 implementation of the change, and the conduct of Respondent's officials
 implied that its action was irreversible and the matter was
 non-bargainable.  The discussions held with Luzania, as I view them,
 were merely to notify him of the proposed change and explain the
 necessity therefor.  While Respondent argues that the Union made no
 proposals at the December 12 meeting, I do not subscribe to the position
 that no further duty devolved upon the employer.  Even though the
 request regarding the decision concerning free child care was not
 negotiable, Respondent was still obliged to bargain in good faith as to
 impact and implementation.  No further request specifically tailored to
 impact and implementation was necessary since management precluded and
 aborted any discussions thereon.  The general request by Luzania, under
 the circumstances, sufficed to impose the duty to bargain with respect
 thereto.  See The Adjutant General's Office, Puerto Rico Air National
 Guard, supra.  I am constrained to find, moreover, that Respondent
 breached that duty as to impact and implementation and violated Sections
 7116(a)(1) and (5) of the Statute.
 
    In respect to the remedy recommended herein, the General Counsel
 requests a return to the status quo ante practice regarding free child
 care.  An issue is thus posed whether, apart from the appropriateness of
 such remedy, a return to the original practice pending impact bargaining
 would be improper based on the defense of illegality.  A reading of the
 Air Force Regulations involved herein persuades me that they are
 insufficient as a defense to Respondent's obligation to bargain on the
 impact and implementation of the change herein.  Thus, AFR 34-3 does not
 proscribe free child care for employees' children, and I do not deem its
 reference to volunteers as mandating such proscription.  Without some
 express prohibition in this regard, or language clearly warranting such
 an inference, it cannot be said that extending free care to children of
 employees is illegal.  Neither do I construe AFR 215-1, paragraph 4(c)
 as forbidding such free care.  This particular regulation, while
 disallowing discounts on merchandise and services, evinces no clear
 intention to prohibit free child care to employees' children.  By the
 same token I do not consider FPM S1-3(b)(1) as outlawing such service.
 This provision, stating that there will be equal pay for substantially
 equal work for employees does not address itself to the issue at hand.
 It cannot be concluded that such regulation attempted to cover the
 subject of child care.  The language therein purports to deal with basic
 pay for coequal services rendered during employment.  Thus I reject any
 contention that the regulations adverted to by Respondent should serve
 as a defense to a status quo ante remedy herein.  /9/ See Department of
 the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 5 FLRA
 No. 48.
 
    In accord with the contention of General Counsel, I agree that the
 remedy of status quo ante is proper in the case at bar.  No serious
 disruption would ensue as a result of returning to the original practice
 pending bargaining on impact and implementation.  Respondent adverts to
 possible distrust and contempt among Air Force personnel for MWR
 activities, as well as skewing wage rates of employees, whose children
 have free care to other employees not receiving such benefits.  Such
 effects are either speculative in nature, or inappropriately raised as
 creating a hardship or serious disturbance to Respondent's operations.
 Norfolk Naval Shipyard, Portsmouth, Virginia, 6 FLRA No. 22;  San
 Antonio Air Logistics Center, Kelly Air Force Base, 5 FLRA No. 22.
 Moreover, I consider that restoring the practice, which existed prior to
 January 1, 1981 in respect to child care for employees' children, is
 necessary to redress the failure by Respondent to bargain regarding the
 adverse effects of the changes and the implementation thereof.  /10/
 
    Having concluded that Respondent has violated Sections 7116(a)(1) and
 (5) of the Act, I recommend the Authority issue the following:
 
                                   ORDER
 
    Pursuant to Section 2423.20 of the Federal Labor Relations
 Authority's Rules and Regulations, and Section 7118 of the Statute, it
 is hereby ordered that the Department of the Air Force, Headquarters
 93rd Combat Support Group (SAC), Castle Air Force Base, California,
 shall:
 
    1.  Cease and desist from:
 
          (a) Instituting any change in the past practice of providing
       free child care to the children of its Child Care Center
       employees, without first notifying National Association of
       Government Employees, Local R12-91, the exclusive representative
       of such employees, and affording it the opportunity to negotiate,
       to the extent consonant with law and regulation concerning the
       impact and implementation of such change.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of their
       rights assured by the Federal Service Labor-Management Relations
       Statute.
 
    2.  Take the following affirmative actions in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Rescind the change in the past practice of providing free
       child care to children of its Child Care Center employees
       represented by National Association of Government Employees, Local
       R12-91.
 
          (b) Reimburse to those employees of the Child Care Center all
       monies charged and collected since January 1, 1981 for the care of
       the children of its employees represented by National Association
       of Government Employees, Local R12-91.
 
          (c) Notify the National Association of Government Employees,
       Local R12-91, the exclusive representative of its Child Care
       Center employees, of any intention to change its past practice of
       providing free child care to the children of its Child Care Center
       employees, and, upon request, negotiate in good faith, to the
       extent consonant with law and regulation, concerning the impact
       and implementation of such change.
 
          (d) Post at its facility at Headquarters 93rd Combat Support
       Group (SAC), Castle Air Force Base, California, 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 Commander of the Headquarters 93rd
       Combat Support Group (SAC), and shall be posted and maintained by
       him for 60 consecutive days thereafter in conspicuous places,
       including all bulletin boards and places where notices to
       employees are customarily posted.  Reasonable steps shall be taken
       by the Commander to insure that such notices are not altered,
       defaced or covered by any other material.
 
          (e) Pursuant to Section 2423.20 of the Authority's Rules and
       Regulations, notify the Regional Director, Region IX, 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.
 
                                       WILLIAM NAIMARK
                                       Administrative Law Judge
 
    Dated:  May 20, 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 institute any change in the past practice of providing
 free child care to the children of its Child Care Center employees,
 without first notifying National Association of Government Employees,
 Local R12-91, the exclusive representative of such employees, and
 affording it the opportunity to negotiate, to the extent consonant with
 law and regulation concerning the impact and implementation of such
 change.
 
    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
 Federal Service Labor-Management Relations Statute.
 
    WE WILL rescind the change in the past practice of providing free
 child care to children of our Child Care Center employees represented by
 National Association of Government Employees, Local R12-91.
 
    WE WILL reimburse to those employees of the Child Care Center all
 monies charged and collected since January 1, 1981 for the care of the
 children of our employees represented by National Association of
 Government Employees, Local R12-91.
 
    WE WILL notify the National Association of Government Employees,
 Local R12-91, the exclusive representative of our Child Care Center
 employees, of any intention to change our past practice of providing
 free child care to the children of our Child Care Center employees, and,
 upon request, negotiate in good faith, to the extent consonant with law
 and regulation, concerning the impact and implementation of such change.
                                       (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 9,
 whose address is:  530 Bush Street, Suite 542, San Francisco, CA, 94108,
 and whose telephone number is:  (415) 556-8105.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ See Internal Revenue Service (IRS) and Brooklyn District Office,
 IRS, 2 FLRA 587, 589 (1980) wherein the Authority held that where a
 union is fully aware of impending action in sufficient time to demand
 bargaining, the union is obligated to request negotiations in order to
 give rise to an obligation to bargain.
 
 
    /2/ The complaint states only that the Respondent advised the Union
 that it intended to abolish the practice of free child care, that the
 change in practice was thereafter implemented, and that the Respondent
 thereby refused to bargain in good faith regarding a change in terms and
 conditions of employment.
 
 
    /3/ Subsequent to the filing of its brief, the General Counsel filed
 a Motion to Correct Transcript.  The Motion is granted and the
 transcript is corrected as set forth in the amended document marked
 Attachment A.
 
 
    /4/ All dates hereinafter mentioned occur in 1980 unless otherwise
 indicated.
 
 
    /5/ Newman attempted to reach the union official upon receiving the
 memo from Roberts, but could not reach Luzania until this date.
 
 
    /6/ Despite the waiver of its right to bargain regarding the
 substance of the change in the practice established herein, the Union
 was entitled to consultation under said section of the agreement.  Using
 Section 7117(d)(2) of the Statute as a guide, management is thus
 required to inform the bargaining agent of the substantive change, as
 well as allow it to present its views and recommendations.  I am
 persuaded that Respondent has satisfied its obligation in this regard.
 It notified the Union representative Luzania on December 8-- three weeks
 before it implemented the change-- as to its intention regarding
 modifying free child care service.  Further, the Respondent's officials
 met on three occasions with Luzania.  At these times the change was
 explained to the union agent and management stated its reasons therefor.
  Luzania was shown a copy of the Staff Judge Advocate's memo, and
 Colonel Roberts agreed to advise him of the firm date for
 implementation.
 
 
    /7/ Respondent also contended that both agency and Government-wide
 regulations mandated the change, and that it would have been illegal to
 continue free child care for employees' children.  The parties