19:0136(13)CA - Air Force, Scott AFB, IL and NAGE Local R7-23 -- 1985 FLRAdec CA



[ v19 p136 ]
19:0136(13)CA
The decision of the Authority follows:


 19 FLRA No. 13
 
 DEPARTMENT OF THE AIR FORCE
 SCOTT AIR FORCE BASE, ILLINOIS
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R7-23
 Charging Party
 
                                            Case Nos. 5-CA-20083 
                                                      5-CA-20130
 
                            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 alleged in the complaint in Case No.
 5-CA-20130, and recommending that it be ordered to cease and desist
 therefrom and take certain affirmative action.  No exceptions were filed
 to the Judge's Decision in Case No. 5-CA-20130.  The Judge further found
 that the Respondent had not engaged in certain other unfair labor
 practices alleged in the complaint in Case No. 5-CA-20083, and
 recommended dismissal of that complaint.  Thereafter, the General
 Counsel filed exceptions to the Judge's Decision in Case No. 5-CA-20083,
 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
 entire record in this case, the Authority hereby adopts the Judge's
 findings, conclusions and recommended Order as modified.  /1A/
 
                                   ORDER
 
    Pursuant to section 2423.29 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, Scott Air Force
 Base, Illinois, shall:
 
    1.  Cease and desist from:
 
    (a) Closing the snack bar at the Scott Air Force Base golf course
 without first notifying the National Association of Government
 Employees, Local R7-23, the employees' exclusive bargaining
 representative, and affording it the opportunity to bargain concerning
 procedures which management officials will observe in exercising the
 decision to close the snack bar and concerning appropriate arrangements
 for employees adversely affected thereby.
 
    (b) Failing or refusing to provide an opportunity for the National
 Association of Government Employees, Local R7-23, the employees'
 exclusive bargaining representative, to bargain concerning procedures
 relating to the decision to furlough two bargaining unit employees on
 January 15, 1982, as a result of the closing of the golf course snack
 bar and concerning appropriate arrangements for the employees adversely
 affected thereby.
 
    (c) 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 with the National Association of Government
 Employees, Local R7-23, the exclusive bargaining representative of its
 employees, concerning procedures relating to the decision to close the
 snack bar at the Scott Air Force Base golf course on December 31, 1981,
 and concerning appropriate arrangements for employees adversely affected
 thereby.
 
    (b) Upon request, bargain with the National Association of Government
 Employees, Local R7-23, the exclusive bargaining representative of its
 employees, concerning procedures relating to the decision to furlough
 two bargaining unit employees on January 15, 1982, as a result of the
 closing of the golf course snack bar and concerning appropriate
 arrangements for the employees adversely affected thereby.
 
    (c) Post at its facilities copies of the attached Notice on forms to
 be furnished by the Federal Labor Relations Authority.  Such forms shall
 be signed by the Commander, 375th Air Base Group (MAC), or a designee,
 and shall be posted and maintained for 60 consecutive days thereafter,
 in conspicuous places, including all bulletin boards and other places
 where notices to employees are customarily posted.  Reasonable steps
 shall be taken to ensure that such Notices are not altered, defaced, or
 covered by any other material.
 
    (d) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region V, 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.
 
    IT IS FURTHER ORDERED that the complaint in Case No. 5-CA-20083 be,
 and it hereby is, dismissed.  
 
 Issued, Washington, D.C., July 16, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., 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 close the snack bar at the Scott Air Force Base golf course
 without first notifying the National Association of Government
 Employees, Local R7-23, the exclusive bargaining representative of our
 employees, and affording it the opportunity to bargain concerning the
 procedures which management officials will observe in exercising the
 decision to close the snack bar and concerning appropriate arrangements
 for employees adversely affected thereby.  WE WILL NOT fail or refuse to
 provide an opportunity for the National Association of Government
 Employees, Local R7-23, the exclusive bargaining representative of our
 employees, to bargain concerning procedures relating to the decision to
 furlough two bargaining unit employees on January 15, 1982, as a result
 of the closing of the golf course snack bar and concerning appropriate
 arrangements for the employees adversely affected thereby.  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, upon request, bargain with
 the National Association of Government Employees, Local R7-23, the
 exclusive bargaining representative of our employees, concerning
 procedures relating to the decision to close the snack bar at the Scott
 Air Force Base golf course on December 31, 1981, and concerning
 appropriate arrangements for employees adversely affected thereby.  WE
 WILL, upon request, bargain with the National Association of Government
 Employees, Local R7-23, the exclusive bargaining representative of our
 employees, concerning procedures relating to the decision to furlough
 two bargaining unit employees on January 15, 1982, as a result of the
 closing of the golf course snack bar and concerning appropriate
 arrangements for the employees adversely affected thereby.
                                       . . . (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.  If employees have
 any questions concerning this Notice or compliance with its provisions,
 they may communicate directly with the Regional Director, Region V,
 Federal Labor Relations Authority, whose address is:  175 Jackson
 Boulevard, Suite 1359-A, Chicago, Illinois, 60604, and whose telephone
 number is:  (312) 353-6306.
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
 
                                       Case Nos.: 5-CA-20083, 5-CA-20130
 
    Lt. Col. Gordon B. Finley, Jr., Esquire
    Capt. David W. Chappell, Esquire
       For the Respondent
 
    Mr. Carl L. Denton
       For the Charging Party
 
    Sandra LeBold, Esquire
       For the General Counsel, FLRA
 
    Before:  GARVIN LEE OLIVER
       Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This decision concerns two unfair labor practice complaints issued by
 the Regional Director, Region Five, Federal Labor Relations Authority,
 Chicago, Illinois against the Department of the Air Force, Scott Air
 Force Base, Illinois (Respondent), based on charges filed by the
 National Association of Government Employees, Local R7-23 (Charging
 Party or Union).  The complaint in Case No. 5-CA-20083 alleged, in
 substance, that Respondent violated sections 7116(a)(1) and (5) of the
 Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et
 seq. (the Statute), by discontinuing established overtime assignments to
 billeting clerks without having bargained with the Union concerning the
 impact and implementation of such change.  Respondent's answer denied
 any violation of the Statute and averred that it had met its bargaining
 responsibilities.  The complaint in Case No. 5-CA-20130 alleged, in
 substance, that Respondent violated sections 7116(a)(1) and (5) of the
 Statute by closing the golf course snack bar and furloughing employees
 without giving adequate notice to the Union and affording the Union an
 opportunity to bargain concerning the impact and implementation of such
 changes.  Respondent's answer denied any violation of the Statute and
 averred that the furloughs were effectuated only after discussion with
 the Union and after it was unable to find acceptable alternative
 employment for affected employees.
 
    The cases were consolidated for hearing at Scott Air Force Base,
 Illinois.  The Respondent, Charging Party, and the General Counsel were
 represented and afforded full opportunity to be heard, adduce relevant
 evidence, examine and cross-examine witnesses, and file post-hearing
 briefs.  Based on the entire record, /1/ including my observation of the
 witnesses and their demeanor, I make the following findings of fact,
 conclusions of law, and recommendations.
 
                          I.  Case No. 5-CA-20083
 
 A. Findings of Fact
 
    At all times material herein, the Union has been recognized as the
 exclusive representative of an appropriate unit of Air Force employees
 assigned to Respondent.  The applicable collective bargaining agreement
 provided in pertinent part, as follows:
 
          Article VII-- Hours of Work and Basic Workweek
 
          Section 10 (Added):  Employees of equal qualifications and
       grade who work an uncommon tour o(f) duty may exchange shifts or
       days off on a voluntary basis subject to the respective
       supervisor's approval.  Such approval normally will be granted
       unless the exchange will interfere with or interrupt the mission
       of the organization.  Such exchange:
 
          a.  Shall be within the same administrative workweek and in
       compliance with applicable laws and regulations.
 
          b.  (W)ill be based on at least a 24 hour advance written
       request.
 
          c.  Shall be limited to no more than once per pay period.
 
 The parties agree that employees who are enrolled in a regularly
 scheduled course of instruction are exempt from item c above. Article
 VIII-- Overtime
 
    Section 1:  The Employer agrees to make every effort to give
 employees as much notice as possible when overtime is required, and
 further agrees to give due consideration to the employees' personal
 circumstances, subject to the paramount requirement of fulfilling the
 mission of the Employer.  It is agreed that the assignment of overtime
 work is a function of the Employer.
 
    Section 2:  An employee will, upon request, be released from an
 overtime assignment if a qualified replacement is available and willing
 to work.  However if a qualified replacement, as determined by the
 Employer, is not available, the employee will work overtime.
 
                                .  .  .  .
 
    Section 4:  The Employer will make available to the Union upon
 request, current records of overtime assignments of employee to aid in
 resolving individual claims of unfair and inequitable treatment.
 
    Section 5 (Added):  In accordance with applicable Air Force
 regulations and subject to the supervisor's approval, an employee may be
 granted compensatory time in lieu of overtime pay.
 
                                .  .  .  .
 
    Article XXXII-- Excused Absences
 
    Section 3 (Added):  Employees normally will be granted minor
 deviation in their hours of work for purposes of participating in
 officially designated carpools.  The granting of such deviation normally
 will be made after the employee has made reasonable efforts to
 participate in a carpool which is compatible to his/her existing duty
 hours.  The granting of such minor deviation will be accomplished in
 compliance with applicable regulations.
 
    Billeting clerks at Respondent's Billeting Office perform a variety
 of tasks quite similar to those of registration desk employees at any
 hotel.  They greet guests, find them rooms on or off base, handle
 telephone calls, post charges, and sell sundry items.  From at least
 1976 until the action described herein, billeting clerks worked fifteen
 minutes overtime per shift in order to count revenues received, turn
 over a change fund to their replacement, and put excess monies along
 with appropriate accounting forms into a safe.  Billeting clerks were
 asked if they were willing to work the 15 minutes daily overtime when
 they were hired, and their job description provided, "Incumbent in this
 position will be required to work an uncommon tour of duty at the main
 office which is manned 24 hours a day, seven days a week and includes 15
 minutes overtime daily."
 
    The daily overtime began because, with only one clerk on duty at each
 of two separate desk locations, the employee could not usually find the
 time to render a proper accounting during the shift.  Thus, the
 accounting was done after the next shift started and the replacement
 arrived.  In 1980, the two registration desks were consolidated at the
 Main Billeting Office.  With all personnel at one location, several
 overlapping shifts were established, so that usually one employee came
 in two hours before the other employee went off duty.  However, the
 fifteen minutes overtime continued without a proposed change until after
 Robert Lee Parker, Sr. became the billeting services officer in February
 1981.
 
    Mr. Parker determined that the overtime was no longer necessary on
 most shifts, because, with overlapping shifts and two clerks on duty,
 the clerk going off duty could stop fifteen or twenty minutes before
 going off duty and count the receipts.  In this regard, Air Force
 Regulation 40-552 of September 15, 1971 provided, in pertinent part:
 
          1.  . . . Tours of duty which require the payment of premium
       pay rates, for example, . . . overtime . . . are established only
       when required for efficient operations.
 
                                .  .  .  .
 
          3.  . . . Commanders will maintain a continuing check to
       determine the necessity for overtime work whether regularly
       scheduled or occasional overtime, and insure that overtime work
       does not continue beyond the absolute need . . . .
 
          a.  Authorization requirement.  Overtime work must be ordered
       by the appropriate supervisor and approved in writing by the
       official designated to authorize overtime payment. . . .
       (A)pproval must be obtained before the work is performed except in
       an emergency when it must be made a matter of record no later than
       the following workday. . . .
 
    On June 16, 1981 the Union was provided a new work schedule for
 billeting clerks to be effective July 12, 1981.  Respondent noted that
 the improved management posture had eliminated the need for routine
 overtime and a twenty-minute, on-the-clock lunch period.
 
    On July 8, 1981 the Union requested that the status quo be maintained
 and that management enter into negotiations on the duty hours and other
 changes for billeting clerks.  Respondent answered by requesting that
 the Union submit proposals by August 4, 1981.  The Union did so, again
 proposing that the status quo be maintained except that employees be
 allowed to leave their work area during the duty-free lunch period.
 
    The parties met on August 26, 1981.  The Union reiterated its request
 for the status quo.  Respondent took the position that overtime was
 addressed by the contract and management had no continuing obligation to
 bargain on whether employees would or would not work the daily overtime.
  The Union indicated that if something could be worked out on the lunch
 hour issue, it would indicate to the employees that the Union's chances
 of prevailing on the overtime issue did not look good.  Following the
 session, the Union directed a letter to Respondent which stated in part:
 
          Again, I restate the Union's demand that the status quo,
       including the payment of overtime, be retained until the matter is
       fully negotiated.  We request that management provide a written
       statement declaring its position that the change of duty hours to
       eliminate overtime is nonnegotiable.  We also request to continue
       negotiations on the subject and if management feels we are at
       impasse then I request a statement outlining their final position
       so that we can proceed to the next step.
 
    On August 31, 1981 Respondent replied, stating that the Agency would
 maintain the status quo, with respect to the lunch period, but not with
 respect to the overtime.  Respondent also, stated, in part, as follows:
 
          2.  . . . With respect to management's intent to eliminate the
       1/4 hour daily overtime assignment to billeting clerks, it is our
       understanding that the union's proposal, in essence, would have
       management continue with the daily overtime assignment.  We
       believe the union's proposal conflicts with language previously
       agreed to in Article VIII, section 1 of our now expired Agreement:
 
          "It is agreed that the assignment of overtime work is a
       function of the Employer."
 
          Rather than address impact and implementation, the union's
       proposal addresses the substance of management's proposed action.
       To negotiate the substance of our proposed action would, in
       effect, be an acknowledgement of a continuing obligation to
       bargain over proposed changes in personnel policy practices and
       procedures.  It is our belief that such a management obligation
       does not exist.  For these reasons it is our firm belief that
       there is no basis for further negotiations.
 
          3.  As indicated during our negotiating session, it is our
       intent to eliminate the 1/4 hour daily assignment of overtime to
       billeting clerks effective 6 September 1981.
 
    By letter dated September 1, 1981 the Union submitted amended
 proposals and requested that "the status quo on overtime be retained
 until mutual agreement on the above impact and implementation proposals
 is achieved." /2/ The overtime was eliminated effective September 6,
 1981, but, upon protest by the Union, was reinstated by Respondent
 effective September 20, 1982 "as an interim action" and "until further
 notice."
 
    Respondent analyzed the Union's proposals, drafted counter-proposals,
 and scheduled an impact and implementation bargaining session for
 September 22, 1981.  Thereafter, the parties met twice, on September 22,
 1981 and again in late October, but failed to reach any agreement.
 
    Despite a delay in resuming negotiations between late October and
 December, 1981, neither party chose to invoke the procedures provided by
 section 7119 of the Statute for the resolution of negotiation impasses.
 Carl Denton, Union president, did telephone Ray Rush, labor relations
 officer, several times to inquire if and when the parties could get back
 to the bargaining table.  Mr. Rush replied that Respondent was
 formulating its position and would advise the Union by letter of its
 intentions.
 
    During this period, Mr. Rush conferred on the matter with various
 other members of Respondent's staff, including the operating official in
 charge, attorneys in the Office of the Staff Judge Advocate, and the
 base commander.  Respondent ultimately decided that the continued
 certification of overtime as necessary, when it was felt that it was
 not, and the continued payment for such overtime could no longer be
 permitted.
 
    On Friday, December 4, 1981 Mr. Rush hand carried a letter to Mr.
 Denton at about 1:00 p.m.  The letter notified the Union that effective
 at 1:00 a.m. Sunday, December 6, 1981, management would no longer assign
 billeting clerks to work 15 minutes daily overtime for the purpose of
 taking a money count at the end of their respective shifts.  Respondent
 stated that the action was taken "after giving due regard to the
 negotiations regarding this matter, which have transpired between the
 parties."
 
    Shortly thereafter, Mr. Denton telephoned Mr. Rush and asked him not
 to implement the change as the Union would like to engage the services
 of the Federal Mediation and Conciliation Service (FMCS) or Federal
 Services Impasses Panel (FSIP).  Mr. Rush replied that it was out of his
 hands and too late to do anything about it.
 
    The Union did not contact the FMCS or FSIP.  It filed the unfair
 labor practice charge on December 17, 1981.
 
    Since December 6, 1981, Billeting clerks have not been routinely
 assigned overtime.  However, billeting clerks on the late night
 (10pm-6am) and early (6am-2pm) shifts have been required to work 15
 minutes overtime approximately 2-3 times a week, and such overtime has
 also been required occasionally on other shifts when replacements have
 not reported as scheduled.  In such circumstances, such overtime has
 always been determined to be necessary and paid.
 
    The discontinuance of the assignment of routine overtime had some
 impact on bargaining unit employees.  The seven billeting clerks each
 lost overtime pay for a maximum of one hour and fifteen minutes per
 week.  Although they are still required to work overtime as needed, they
 are often provided little or no advance notice.  In such cases,
 billeting clerks have to request and justify the payment of overtime
 after it has been worked.  Since the money count can no longer be made
 at the end of the shift, the number of accountings required between
 employees on the various shifts has increased.  B.  Discussion and
 Conclusions
 
    The complaint alleges that Respondent violated sections 7116(a)(1)
 and (5) of the Statute (1) on December 4, 1981 when it refused, and
 continues to refuse, to bargain with the Union concerning the impact and
 implementation of discontinuing established overtime assignments to
 billeting clerks and (2) by discontinuing overtime assignments to
 billeting clerks on or about December 6, 1981 without having bargained
 with the Union concerning the impact and implementation of such change.
 The General Counsel asserts that the routine assignment of overtime
 became by practice a term and condition of employment;  that the change
 resulted in substantial and material adverse impact on bargaining unit
 employees;  and that Respondent did not bargain in good faith in an
 effort to reach agreement on the issue.  The General Counsel alleges
 that after the parties met in September and October, Respondent did not
 declare the Union proposals nonnegotiable, did not declare an impasse,
 kept promising the Union a written response that never materialized, and
 refused the Union's request that it be allowed to seek assistance from
 the FMCS or FSIP when it discontinued the overtime on December 4, 1981.
 
    Respondent defends on the basis that it did not change conditions of
 employment in eliminating the practice of billeting clerks working
 overtime.  Respondent claims that it always had to determine such work
 to be necessary and assign it before it could be worked, and continues
 to make these determinations.  Respondent also asserts that the parties'
 negotiated agreement prescribes procedures to be followed in assigning
 or not assigning overtime, and it incurred no obligation beyond the
 procedures set forth in their agreement.  Respondent maintains that,
 even if it did effect a change, there was no duty to bargain about it,
 as it was an exercise of the exclusive authority to assign work under
 section 7106(a), was negotiable only at the election of the agency
 pursuant to section 7106(b)(1), or was clearly and unmistakably waived
 by the negotiated agreement.  Respondent also contends that the evidence
 fails to prove that employees were adversely affected, or that the
 Union's proposals were designed to address adverse effects and, hence,
 negotiable.  Finally, Respondent maintains that it fulfilled any duty to
 afford the Union notice and an opportunity to bargain concerning the
 impact and implementation of its decision.
 
    The evidence amply establishes that the routine assignment to
 billeting clerks of fifteen minutes daily overtime for a period of five
 years became by practice a condition of employment.  It is also clear
 that the billeting clerks were adversely affected by the proposed
 discontinuance of the overtime.
 
    It is well established that, even where an agency's decision to
 change a past practice involves the exercise of a reserved management
 right under the Statute, the agency is required to notify the employee's
 exclusive representative before making the change and to afford the
 exclusive representative an opportunity to bargain, upon request,
 concerning the procedures to be used in implementing the change and on
 appropriate arrangements for employees adversely affected by the change.
  Department of the Interior, U.S. Geological Survey, 9 FLRA No. 65
 (1982).  Any waiver of such a statutory right must be clear and
 unmistakable.  Department of the Air Force, Scott Air Force Base, 5 FLRA
 No. 2 (1981).  The collective bargaining agreement acknowledges that the
 assignment of overtime is a function of the employer and sets forth
 procedures to be followed in assigning overtime.  However, the agreement
 contains no clear and unmistakable waiver with respect to the Union's
 right to bargain over the impact and implementation of a change in past
 practice concerning established overtime assignments.
 
    The principle issue is whether Respondent refused to negotiate in
 good faith over impact and implementation, and thus violated sections
 7116(a)(5) and (1) of the Statute, when it discontinued the established
 overtime assignments on December 6, 1981.  Section 7114(b) of the
 Statute provides, in relevant part, that the duty to negotiate in good
 faith includes the obligation:  "(1) to approach the negotiations with a
 sincere resolve to reach a collective bargaining agreement;  . . . . (3)
 to meet at reasonable times and convenience places as frequently as may
 be necessary, and to avoid unnecessary delays. . . . " See also, section
 7103(a)(12) (definition of collective bargaining), and Department of the
 Air Force, Scott Air Force Base, Illinois, supra.
 
    The record reflects that the Respondent first proposed the
 elimination of the overtime to be effective July 1981, but did not
 permanently eliminate it until some five months later in December 1981.
 During this period, the Union was afforded notice and an opportunity to
 negotiate.  The Union insisted on bargaining on the substance of the
 proposal through August 1981.  It later amended its proposals in
 September 1981 when faced with another proposed implementation date.
 Respondent presented counterproposals, and the parties did negotiate in
 late September and October.
 
    Between the last negotiating session in late October, and December 4,
 1981, when notice of implementation was given, the Union inquired
 several times if and when the parties could get back to the bargaining
 table.  Respondent replied that it was formulating its position and
 would advise the Union by letter of its intentions.  A preponderance of
 the evidence fails to show that there was "unnecessary delay" on
 Respondent's part during this period.
 
    Five of the seven proposals (a-d, f) offered by the Union during the
 negotiations did not deal with the impact and implementation of the
 elimination of routine overtime, but with procedures to be followed
 concerning the subsequent assignment of any overtime.  I agree with
 Respondent that it had no duty to negotiate procedures for the
 assignment of overtime as they had already been negotiated and were
 contained in Article VIII of the negotiated agreement.  The Union made
 no showing that these procedures did not apply to the billeting clerks.
 
    Union proposal e provided, "Management shall make every effort to
 eliminate the impact of the elimination of routine overtime as the
 occasion arises." There was no duty to bargain concerning this proposal
 as it was insufficiently specific and delimited in form and content.
 Cf. Association of Civilian Technicians, Alabama ACT, 2 FLRA No. 39
 (1979).
 
    The only remaining Union proposal was g, "Management shall give the
 employees two weeks notice after the conclusion of these negotiations
 prior to eliminating overtime and shall ensure that all employees are
 served with a copy of the negotiated agreement pertaining to this
 subject." The proposal to furnish a copy of the agreement to each
 employee was negotiable and, in a normal situation, the underlined
 portion of the proposal for two weeks notice after the conclusion of
 negotiations prior to eliminating overtime, would have been negotiable.
 However, in the instant case, the overtime was unnecessary and
 management was bound by Air Force regulation not to assign it.  The
 Respondent was obligated to change the past practice so as to conform
 with the requirements of law and regulation.  See 5 U.S.C. 5542, 5 CFR
 550.111, AFR 40-552.  The obligation to bargain over the impact of the
 decision could not justify a delay in correcting the practice, although
 negotiations on other appropriate impact and, where possible,
 implementation proposals could go forward after implementation.  Cf.
 Department of the Interior, U.S. Geological Survey, supra.  Section 7101
 provides that the Statute "should be interpreted in a manner consistent
 with the requirement of an effective and efficient Government."
 
    I conclude that Respondent did not violate section 7116(a)(5) and (1)
 of the Statute, as alleged, by discontinuing established overtime
 assignments to billeting desk clerks without having bargained with the
 Union concerning the impact and implementation of such change.
 Respondent did bargain in good faith with the Union for several months
 prior to making the change, and it was not necessary in this instance
 that implementation be further delayed pending the completion of the
 collective bargaining process, including the exhaustion of procedures
 for the resolution of negotiation impasses.
 
    The next issue for consideration is whether, as alleged, Respondent
 by letter dated December 4, 1981 refused, and continues to refuse, to
 bargain in good faith with the Union concerning the impact and
 implementation of discontinuing established overtime assignments to
 billeting clerks.
 
    Respondent's letter of December 4, 1981 merely advised the Union of
 the date of implementation which was to be two days later.  It did not
 declare the Union's proposals nonnegotiable, or declare an impasse.  The
 Union's only response was a request that the change not be implemented
 as it would like to engage the services of the FMCS or FSIP.
 
    Although it would have been a much better practice for Respondent to
 have set forth its position on the Union's proposals in its December 4,
 1981 letter, its failure to do so did not amount to a refusal to bargain
 in good faith on impact and implementation in view of the negotiations
 previously conducted and the proposals and counter-proposals presented.
 The letter did not foreclose the possibility of further negotiations if
 the Union had legitimate impact issues to discuss.  /3/ It also did not
 preclude the Union from invoking the services of the FMCS or FSIP.  As
 noted, continuing negotiations on impact and possibly implementation
 could have gone forward after implementation in this instance.  Cf.
 Department of Interior, U.S. Geological Survey, supra;  compare United
 States Customs Service, Region V, New Orleans, Louisiana, 9 FLRA No. 15
 (1982).
 
    Under all the circumstances, it is concluded that a preponderance of
 the evidence does not support a violation of section 7116(a)(1) and (5)
 as alleged, and it is recommended that the complaint in Case No.
 5-CA-20083 be dismissed.
 
                         II.  Case No. 5-CA-20130
 
 A. Findings of Fact
 
    The Union is the exclusive representative of an appropriate unit of
 regular and intermittent non-appropriated fund employees at Scott Air
 Force Base, Illinois.
 
    The Scott Air Force Base golf course snack bar is a non-appropriated
 fund instrumentality which must pay its own operating expenses from
 current revenue.  Due to the seasonal nature of its business, it had
 closed every year from November through March.  However, employees were
 told in 1981 that the snack bar would remain open all of the winter of
 1981-1982 except for a long-planned renovation which would take place
 from approximately April to October 1982.  Nevertheless, when the snack
 bar began to lose money in October and November 1981, the operating
 officials also requested permission to close.  Permission was granted in
 late December.
 
    On December 31, 1981 Respondent closed the snack bar for a period of
 about three months.  The closing was brought about because of extensive
 financial losses.  As it turned out, the closing was also necessary
 because the contract for the renovation project was entered into earlier
 than expected, and it was necessary that the facility be vacated and
 prepared for this renovation.
 
    Employees at the snack bar contacted the Union on or about December
 30, 1981 concerning the snack bar closing on December 31 and the
 possibility of furloughs to be effective January 1, 1982.  Union
 president Carl Denton contacted Ray Rush, labor relations officer, on
 December 31, 1981.  Mr. Denton stated that the Union wanted to enter
 into negotiations on the impact of the change and requested that the
 status quo should be maintained in the interim.  On the same day,
 December 30, 1981, Mr. Denton submitted a written bargaining request
 with proposals.  Mr. Rush confirmed the closing of the snack bar, but,
 after conferring with the operating officials, advised Mr. Denton that
 there would be no January 1, 1982 furlough for the seven employees in
 the snack bar.  He advised Mr. Denton of a management meeting with the
 golf course employees on January 4, 1982.
 
    On January 4, 1982, a meeting was held regarding the snack bar
 closing.  Present at the meeting were Mr. Rhodes, NCO Club assistant
 manager, Ms. Gardner, Union vice-president, Fay Edivien, another Union
 officer, and approximately three of the snack bar employees.  Union vice
 president Gardner expressed the Union's concern that the snack bar be
 kept open or that all employees be placed in other jobs.  Mr. Rhodes
 indicated that the snack bar was losing money and could not be kept
 open, but he felt all employees could be placed in other positions at
 the NCO Club, although a furlough still might be necessary.
 
    Ms. Gardner reported to Union president Denton on the meeting, and
 Denton submitted a second request to bargain on January 4, 1982.  The
 letter provided, in part, as follows:
 
          1.  Bargaining unit employees be provided available work in
       other areas at the same wages and hours that they are currently
       under.
 
          2.  That the employees be allowed to go back to their old job
       at the golf course as soon as it opens.
 
          3.  That management provide a date when the golf course is
       expected to reopen.
 
          4.  That the golf course remain open until mutual agreement is
       reached with the union on the implementation of arrangements for
       the affected employees.
 
          5.  That the union be provided a listing showing the name, job
       title, series, type of employee (GS, WG, NAF), grade and service
       comp date of all employees who work at or in connection with the
       gold course.
 
          6.  That management provide a list of all NAF vacancies,
       regardless of whether a fill action has been submitted, to the
       union.  This list should have job location, series, grade and
       title.
 
    On January 12, 1982, Respondent notified the Union that it proposed
 to furlough two snack employees, Julie Pierpoint and Evelyn Bertram,
 effective January 15, 1982.  Upon receipt of this notice, Union
 president Denton requested a meeting with Respondent.
 
    Mr. Denton and another Union representative, Frank Holton, met with
 Respondent's representatives, Ray Rush, William R. Witham, and Mr.
 Rhodes on January 13, 1982.  Mr. Denton requested the status of the
 snack bar employees, and the Respondent provided information on several
 of the employees.  The Union reiterated that it expected management to
 accommodate the employees in other positions with the same number of
 hours;  that the Union wanted to negotiate proper arrangements for the
 affected employees;  and that the status quo should be retained during
 the negotiations.
 
    The record reflects that the only subsequent contact between the
 Union and Respondent concerning this matter occurred sometime in late
 January when Union vice president Gardner contacted Mr. Witham
 concerning snack bar employee Sandra Dombal.  Ms. Gardner told Mr.
 Witham that Ms. Dombal was having a real hardship financially, and asked
 whether there was anything he could do for her.  Mr. Witham subsequently
 found Ms. Dombal employment at the base bowling alley commencing
 February 1, 1982.
 
    After the closing of the snack bar, Elizabeth Schoenborn, personnel
 staffing specialist, searched for alternate jobs for the employees at
 the bowling center, officers club, and NCO Club.  Generally, she was
 unsuccessful.
 
    The closing of the snack bar on December 31, 1981 resulted in changes
 for snack bar employees in their duty hours, schedules, and amounts of
 time worked, as follows:
 
          -Julie Pierpoint, foodhandler (regular part time) was
       transferred to the NCO Club until January 15, 1982.  She was
       furloughed from January 15, 1982 until March 28, 1982.  On or
       about March 3, 1982 she was offered a temporary job at the
       Officers Club.
 
          -Evelyn Bertram, short order cook (regular part time) was
       transferred to the NCO Club until January 15, 1982.  She was
       furloughed from January 15, 1982 until the end of March 1982.  On
       or about March 3, 1982 she was offered a temporary job at the
       Officers Club.
 
          -Sandra Dombal, food service worker (intermittent part time)
       worked three hours per day for about a week, one four-hour day,
       and then had no work until January 19, 1982.  She worked at the
       NCO Club for about two weeks and then found a new job at the
       bowling center commencing February 1, 1982.
 
          -Jacquelin Williams, bartender (intermittent part time) was
       laid off from late December 1981 until late February 1982.
 
    On or about March 3, 1982, jobs were offered to two employees, Mrs.
 Pierpoint and Mrs. Bertram, at the officers club.  By about March 27,
 1982 all displaced employees had returned to their jobs at the renovated
 golf course snack bar or had been placed elsewhere on the base.  B.
 Discussion and Conclusions
 
    The complaint alleges that Respondent closed the snack bar on
 December 31, 1981 and furloughed two employees on January 15, 1982
 without giving the Union adequate notice and an opportunity to bargain
 on the impact and implementation of such changes in terms and conditions
 of employment.
 
    Respondent contends that there was no change in conditions of
 employment as the snack bar closing was an annual event;  that it
 substantially complied with the negotiated agreement concerning changes
 in work schedules;  and that it worked in good faith with the Union
 through Mr. Denton and Ms. Gardner concerning the closing and in trying
 to obtain alternative employment for the employees.
 
    The closing of the snack bar in December 1981 represented a change
 from previous years as the snack bar had previously closed in November,
 and employees had been told it would remain open all of the 81-82
 winter.  Moreover, absent clear and unmistakable evidence of waiver, the
 right to bargain need not be exercised at every opportunity.  Department
 of the Air Force, Scott Air Force Base, 5 FLRA No. 2 (1981).  There was
 no waiver of the right to bargain here.  The actions taken can not be
 equated with mere changes in work schedules or interruptions of work on
 a regularly scheduled workday which are the actions covered by the
 collective bargaining agreement.
 
    Respondent was obligated by section 7106(b)(2) and (3) of the Statute
 to afford the Union reasonable notice of its intention to close the
 nonappropriated fund snack bar and an opportunity to negotiate with
 respect to the procedures which management would observe in exercising
 its authority and appropriate arrangements for employees adversely
 affected by its exercise of authority, unless such negotiations would
 prevent the agency from acting at all.  Department of the Air Force,
 47th Air Base Group (ATC), Laughlin Air Force Base, Texas, 4 FLRA No. 65
 (1980).
 
    The closing of the snack bar resulted in employee transfers, changed
 working hours, reduced working hours, and ultimately, furloughs.
 Respondent was also obligated to afford the Union notice and an
 opportunity to negotiate concerning the impact and implementation of
 these changes.  Department of Health and Human Services, Social Security
 Administration, 10 FLRA No. 20 (1982);  Federal Correctional
 Institution, 8 FLRA No. 111 (1982);  Department of the Air Force, Scott
 Air Force Base, 5 FLRA No. 2 (1981).
 
    The record reflects that Respondent did not provide the Union
 reasonable notice of the closing of the snack bar on December 31, 1981.
 The Union received notice from employees of the closing on December 30
 and requested to negotiate on the impact and implementation of such a
 change on December 30, 1981, January 4, 1982, and January 13, 1982.
 Respondent agreed on January 4, 1982 to try to find other jobs for the
 employees, and it appears that it did attempt to find other employment
 for the employees.  However, apart from informational-type exchanges on
 January 4 and January 13, 1982, there is no evidence that Respondent
 engaged in collective bargaining with the Union.  That is, there is no
 evidence that Respondent met with the Union and bargained in a good
 faith effort to reach agreement with respect to appropriate arrangements
 for the adversely affected employees as requested by the Union and as
 required by the Statute.  Respondent simply proceeded unilaterally to
 make such arrangements.  Respondent did honor the Union's subsequent
 request that it make a special effort to find employment for Ms. Dombal;
  however, this occurred after she had already been transferred and after
 her working hours had been drastically reduced.
 
    Similarly, while Respondent provided notice to the Union on January
 12, 1981 of the furloughs of two employees on January 15, 1982, there is
 no evidence that Respondent negotiated with the Union, as requested,
 concerning the impact and implementation of the furloughs.  The
 Authority has held that Union proposals designated to establish
 equitable furlough and recall procedures would be within an agency's
 duty to bargain.  National Treasury Employees Union, 7 FLRA No. 42
 (1981).
 
    It is concluded that Respondent violates section 7116(a)(1) and (5)
 of the Statute in these respects as alleged.
 
    In addition to requesting the usual notice and bargaining order,
 counsel for the General Counsel argues persuasively 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, /4/ 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 Command, 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).
 
    It is not possible to conclude from the record that by Respondent's
 failure to negotiate on impact and implementation the snack bar
 employees were affected by unjustified or unwarranted personnel actions
 which directly resulted in the loss of pay.  To put it another way, it
 appears that back pay would not be appropriate in the absence of a
 finding that the snack bar employees would have remained on the payroll
 had negotiations occurred.  It is not possible to draw this conclusion
 from the record.
 
                           III.  Recommendations
 
    Based on the foregoing findings and conclusions, it is recommended
 that the Authority issue the following Order:
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Statute, the
 Authority hereby orders that the Department of the Air Force, Scott Air
 Force Base, Illinois shall:
 
    1.  Cease and desist from:
 
          (a) Closing the snack bar at the Scott Air Force Base golf
       course without first notifying the National Association of
       Government Employees, Local R7-23, the employees'exclusive
       bargaining representative, and affording it the opportunity to
       negotiate to the extent consonant with law and regulation
       concerning the procedures which management officials will observe
       in exercising the decision to close the snack bar and appropriate
       arrangements for employees adversely affected thereby.
 
          (b) Failing or refusing to provide an opportunity for the
       National Association of Government Employees, Local R7-23, to
       negotiate, to the extent consonant with law and regulation,
       concerning the impact and/or implementation of a decision to
       furlough bargaining unit employees represented by it.
 
          (c) 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 close the snack bar at the Scott
       Air Force Base golf course on December 31, 1981 and concerning
       appropriate arrangements for employees adversely affected thereby.
 
          (b) Upon request, bargain concerning procedures relating to the
       employees on January 15, 1982 as a result of the closing of the
       golf course snack bar and/or concerning appropriate arrangements
       for the employees adversely affected.
 
          (c) Post at its facilities copies of the attached Notice marked
       "Appendix" on forms to be furnished by the Authority.  Upon
       receipt of such forms, they shall be signed by the Commander,
       375th Air Base Group (MAC) and shall be posted and maintained by
       him for 60 consecutive days thereafter, in conspicuous places,
       including all bulletin boards and other places where notices to
       employees are customarily posted.  The Commander shall take
       reasonable steps to insure that such notices are not altered,
       defaced, or covered by any other material.
 
          (d) Pursuant to 5 C.F.R. 2423.30 notify the Regional Director,
       Region Five, Federal Labor Relations Authority, Chicago, Illinois,
       in writing, within 30 days from the date of this order, as to what
       steps have been taken to comply herewith.
 
    IT IS FURTHER ORDERED that the complaint in Case No. 5-CA-20083 be,
 and it hereby is, dismissed.
 
                                       GARVIN LEE OLIVER
                                       Administrative Law Judge
 
 Dated:  February 23, 1983
         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 close the snack bar at the Scott Air Force Base golf course
 without first notifying the National Association of Government
 Employees, Local R7-23, the employees' exclusive bargaining
 representative, and affording it the opportunity to negotiate to the
 extent consonant with law and regulation concerning the procedures which
 management officials will observe in exercising the decision to close
 the snack bar and appropriate arrangements for employees adversely
 affected thereby.  WE WILL NOT fail or refuse to provide an opportunity
 for the National Association of Government Employees, Local R7-23, to
 negotiate, to the extent consonant with law and regulation, concerning
 the impact and/or implementation of a decision to furlough bargaining
 unit employees represented by it.  WE WILL NOT in any like or related
 manner, interfere with, restrain, or coerce employees in the exercise of
 their rights assured by the Federal Service Labor-Management Relations
 Statute.  WE WILL, upon request, bargain concerning procedures relating
 to the implementation of the decision to close the snack bar at the
 Scott Air Force Base golf course on December 31, 1981 and concerning
 appropriate arrangements for employees adversely affected thereby.  WE
 WILL, upon request, bargain concerning procedures relating to the
 implementation of the decision to furlough two bargaining unit employees
 on January 15, 1982 as a result of the closing of the golf course snack
 bar and/or concerning appropriate arrangements for the 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 Five, whose address is :
 175 West Jackson Boulevard, Suite 1359-A, Chicago, Illinois, 60604, and
 whose telephone number is:  (312) 886-3468.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1A/ Noting particularly the absence of exceptions with respect
 thereto, the Authority adopts the Judge's Decision that the Respondent
 had engaged in certain unfair labor practices alleged in the complaint
 in Case No. 5-CA-20130.
 
 
    /1/ Respondent's post-hearing motion that official notice be taken of
 Air Force Regulation 40-552, dated September 15, 1971, was unopposed,
 and is hereby granted.
 
 
    /2/ The Union's new proposals were as follows:
 
          a.  Employees will be released from all duties so that they
       will be free to depart the worksite no later than their scheduled
       quitting time.  In the event that any employee is suffered or
       permitted to work even 1 second beyond their scheduled quitting
       time, that employee will be paid a minimum of two hours overtime
       and will not be required to stay on site after the original reason
       the overtime was required has been accomplished.
 
          b.  Employees will be given two days notice in writing, when
       overtime is required.  Failure to provide such notice will give
       the employee the right to refuse to work the overtime except when
       an emergency exists.  Failure of employees to show up for work
       when scheduled shall not be considered an emergency.
 
          c.  Any employee who has to incur extra expenses because of
       overtime worked, shall have those expenses reimbursed within one
       day of notice to management.
 
          d.  Any employee who misses their normal transportation because
       of less than two days notice, shall be provided timely
       transportation to their destination at no cost to themselves.
       Delays in arriving at their destination shall be reimbursed as
       overtime compensation.
 
          e.  Management shall make every effort to eliminate the impact
       of the elimination of routine overtime as the occasion arises.
 
          f.  Management shall administer overtime assignments in a fair
       and equitable manner assuring that all employees get an equal
       amount.  Those employees who do not want overtime, shall have
       their share evenly distributed among the remainder.
 
          g.  Management shall give the employees two weeks notice after
       the conclusion of these negotiations prior to eliminating overtime
       and shall ensure that all employees are served with a copy of the
       negotiated agreement pertaining to this subject.
 
 
    /3/ The General Counsel points out that the discontinuance of routine
 overtime caused increased work on the shifts.  None of the Union's
 proposals offered during the six month period identified or sought to
 address this possible impact area.
 
 
    /4/ The Back Pay Act of 1966 was 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