19:0454(60)CA - Labor, Occupational Safety and Health Admin, Chicago, IL and National Council of Field Labor Locals, AFGE -- 1985 FLRAdec CA



[ v19 p454 ]
19:0454(60)CA
The decision of the Authority follows:


 19 FLRA No. 60
 
 U.S. DEPARTMENT OF LABOR, OCCUPATIONAL
 SAFETY AND HEALTH ADMINISTRATION
 CHICAGO, ILLINOIS
 Respondent
 
 and
 
 NATIONAL COUNCIL OF FIELD LABOR LOCALS
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 5-CA-978
 
                            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, and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  Exceptions to the Judge's Decision were
 filed by the Respondent, and an opposition thereto was filed by the
 General Counsel.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommended Order as modified below.
 
    The Authority agrees with the Judge's conclusion that the Respondent
 violated section 7116(a)(1) and (5) of the Statute by failing to bargain
 with the Charging Party, the National Council of Field Labor Locals,
 American Federation of Government Employees, AFL-CIO (the Union),
 concerning procedures and appropriate arrangements for employees
 adversely affected by its decision to terminate the established practice
 of making individual assignments of government-owned vehicles.  The
 Authority specifically adopts the Judge's finding that, while under the
 parties' collective bargaining agreement the Union did waive certain
 rights to bargain over the decision to change the manner in which
 government-owned vehicles would be assigned, there was no clear and
 unmistakable waiver in the specific circumstances of this case of the
 Union's right to bargain over procedures and appropriate arrangements
 for employees adversely affected by the termination of individual
 vehicle assignments.  /1/ Therefore, the Respondent's refusal to bargain
 in this latter regard constituted a violation of section 7116(a)(1) and
 (5) of the Statute.  /2/
 
    With respect to the remedy, the Judge ordered the Respondent to
 bargain upon request "and reach agreement" concerning the impact of the
 change and to make whole any employees for losses incurred as a result
 of the change.  In the Authority's view, an order which would compel the
 parties to reach agreement is inconsistent with section 7103(a)(12) of
 the Statute which provides, in pertinent part, that collective
 bargaining means "the performance of the mutual obligation . . . to . .
 . bargain in a good faith effort to reach agreement . . . but the
 obligation . . . does not compel either party to agree to a proposal or
 to make a concession(.)" Accordingly, the Judge's order shall be
 modified to require the Respondent to bargain, upon request, concerning
 procedures and appropriate arrangements for employees adversely affected
 by the termination of individual vehicle assignments.  Additionally, to
 the extent that the Judge's make whole remedy could have been
 interpreted to require reimbursement for certain unauthorized expenses,
 the Authority also shall modify that portion of the remedy to require
 reimbursement only for those transportation expenses which are
 consistent with law and regulation and for which the affected employees
 have not otherwise been reimbursed.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the U.S. Department of Labor, Occupational Safety and Health
 Administration, Chicago, Illinois, shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing, upon request, to bargain with the National
 Council of Field Labor Locals, American Federation of Government
 Employees, AFL-CIO, or its designated representatives, concerning
 procedures and appropriate arrangements for employees adversely affected
 by the termination of individual vehicle assignments.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Upon request, negotiate with the National Council of Field Labor
 Locals, American Federation of Government Employees, AFL-CIO, or its
 designated representatives, concerning procedures and appropriate
 arrangements for employees adversely affected by the termination of
 individual vehicle assignments.
 
    (b) Consistent with law and regulation, make whole any employees for
 losses incurred as a result of the termination of individual vehicle
 assignments for which they have not otherwise been reimbursed.
 
    (c) Post at its facilities in Chicago, Illinois, copies of the
 attached Notice on forms to be furnished by the Federal Labor Relations
 Authority.  Upon receipt of such forms, they shall be signed by the
 Regional Administrator, or a designee, and shall be posted and
 maintained for 60 consecutive days thereafter, in conspicuous places,
 including 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.  
 
 Issued, Washington, D.C., July 31, 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 fail or refuse, upon request, to bargain with the National
 Council of Field Labor Locals, American Federation of Government
 Employees, AFL-CIO, or its designated representatives, concerning
 procedures and appropriate arrangements for employees adversely affected
 by the termination of individual vehicle assignments.  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, negotiate
 with the National Council of Field Labor Locals, American Federation of
 Government Employees, AFL-CIO, or its designated representatives,
 concerning procedures and appropriate arrangements for employees
 adversely affected by the termination of individual vehicle assignments.
  WE WILL, consistent with law and regulation, make whole any employees
 for losses incurred as a result of the termination of individual vehicle
 assignments for which they have not otherwise been reimbursed.
                                       (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 No. 5-CA-978
 
    Sheila Cronan, Esq.
       For Respondent
 
    Frank L. Burg
       For Charging Party
 
    Sharon A. Bauer, Esq.
       For General Counsel, FLRA
 
    Before:  SAMUEL A. CHAITOVITZ
       Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101
 et seq., 92 Stat. 1191 (hereinafter referred to as the Statute), and the
 Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5
 C.F.R.Chapter XIV, Sec. 2410 et seq.
 
    A charge was filed on March 11, 1981 and amended on June 17, 1981 by
 National Council of Field Locals, American Federation of Government
 Employees, AFL-CIO (hereinafter called the Union and/or AFGE), against
 the U.S. Department of Labor, Occupational Safety and Health
 Administration, Chicago, Illinois (hereinafter called Respondent and/or
 OSHA).  Pursuant to the above described charge and amended charge, on
 June 25, 1981, the General Counsel of the FLRA, by the Acting Regional
 Director for Region V issued a Complaint and Notice of Hearing alleging
 that Respondent violated Sections 7116(a)(1) and (5) of the Statute by
 changing a condition of employment and refusing to negotiate with the
 Union over the impact and implementation of the change, which refusal
 also allegedly constituted a clear breach of the collective bargaining
 agreement.  OSHA filed an Answer denying that it had violated the
 Statute.
 
    A hearing was conducted before the undersigned in Chicago, Illinois.
 General Counsel of the FLRA, Respondent and Charging Party were
 represented and afforded full opportunity to be heard, to examine and
 cross-examine witnesses, to introduce evidence and to argue orally.
 Post hearing briefs were filed and have been fully considered.
 
    Based upon the entire record /3/ in this matter, my observation of
 the witnesses and their demeanor and from my evaluation of the evidence,
 I make the following:
 
                             Findings of Fact
 
    The Union is the exclusive collective bargaining representative for a
 nation-wide unit composed of all employees stationed in the field duty
 offices of the Department of Labor (DOL), with certain exclusions not
 relevant to this case.  Included in the above described unit are
 employees of OSHA in the Chicago Region, which covers Ohio, Indiana,
 Michigan, Minnesota, Illinois, and Wisconsin.
 
    The Union is represented on the regional level by regional
 representatives.  At all times material herein Frank Burg was Acting
 President of AFGE Local 648 and Kenneth Maglicic was President of AFGE
 Local 2089 and both were designated regional representatives for the
 Union.
 
    At all times material herein the Union and Department of Labor have
 been parties to a collective bargaining agreement which provides for
 negotiations at the regional level between Union regional
 representatives and regional representatives of Department of Labor
 concerning issues having a region wide impact.  Such regional
 negotiations have occurred in the past and have resulted in oral and
 written agreements.  The Union's regional representatives are
 responsible for negotiating with Respondent on issues of regional scope
 and for meeting with management on a quarterly basis.
 
    The collective bargaining agreement provides, in part:
 
          Article 2 Sections (1), (5), and (6) provide:
 
          GOVERNING LAWS AND REGULATIONS
 
          Section 1-- Precedence of Laws and Regulations
 
          In the administration of all matters covered by this Agreement,
       officials and employees are governed by existing or future laws
       and regulations of appropriate authorities including policies set
       forth in the Federal Personnel Manual;  by published
       Department/Agency policies and regulations in existence at the
       time this Agreement was approved;  and by subsequently published
       Department/Agency policies and regulations required by law or by
       the regulations of appropriate authorities.
 
          Section 5-- Management Proposals for Change During the Term of
       the Agreement
 
          (A) Management agrees to transmit to the NCFLL proposed changes
       relating to personnel policies, practices, and matters affecting
       working conditions of bargaining unit employees, or which impact
       on them, proposed during the terms of this Agreement and not
       covered by this Agreement, as far in advance as possible.
 
          (B) Upon receipt of such a proposed change from Management, the
       NCFLL may, within 15 working days, request negotiations concerning
       the proposed change.
 
          (C) Upon timely request from the NCFLL, the parties shall meet
       and confer within 30 calendar days concerning any negotiable
       aspects of the proposed change and/or its impact on bargaining
       unit employees.
 
          (D) Any changes of regulations or amendments to this Agreement
       which are negotiated and agreed to pursuant to this Section will
       be duly executed by the parties and will become an integral part
       of this Agreement and subject to all of the terms and conditions
       of this Agreement.
 
          Section 6-- Past Practices
 
          It is agreed and understood that any prior benefits and
       practices and understandings which have been reduced to writing
       and were mutually acceptable to the parties and which are not
       specifically covered by the Agreement or in conflict with it since
       the granting of exclusive recognition shall not be changed unless
       mutually agreed to by the parties.
 
          Article 17 provides:
 
          GSA VEHICLES OR LEASED VEHICLES
 
          Section 1-- Assignment of GSA Vehicles or Leased Vehicles
 
          (A) Employees may be assigned GSA vehicles or leased vehicles
       in accordance with GSA usage objectives which for passenger
       carrying vehicles is a minimum of 3,000 miles per quarter or
       12,000 miles per year.
 
          (B) GSA or leased vehicles may be made available by the
       supervisor to those employees who do not wish to drive their POV
       and are required to travel on official business on a daily or
       almost daily basis and/or there is no public transportation
       available, or when an employee is required to carry heavy and/or
       bulky equipment for the performance of his/her job.
 
          (C) It is agreed and understood that no employee shall be
       required to provide a privately owned vehicle for use on
       Department business or to maintain a privately owned vehicle as a
       condition of employment.
 
          Section 2-- Use of GSA Vehicles
 
          In accordance with GSA requirements that Government-owned or
       leased vehicles be used only for official purposes, vehicles
       assigned to employees on either a specific trip or regular basis
       may be parked at or near the employee's residence during non-duty
       hours only if the employee is required by his/her supervisor to
       travel to a temporary duty post in the morning or return home at
       night without first reporting to his/her duty station, and/or the
       supervisor has determined that it is more advantageous to the
       Government to do so.  In such event the supervisor will give the
       employee prior written approval to park the Government-owned or
       leased vehicle at or near his/her residence during non-duty hours.
 
          Section 3-- Unsafe Vehicles
 
          Any GSA vehicle or leased vehicle which is reported to be
       unsafe by the operator shall be returned immediately to GSA or the
       leasing company (or such facility contacted for instructions) for
       repair or replacement.  If the vehicle cannot be repaired or
       replaced, the employee will, as soon as practicable (within an
       hour if possible), provide the supervisor with an estimate of the
       situation and obtain appropriate instructions.
 
    During late January or early February 1981 Ronald McCann, Chicago
 Regional Administrator of OSHA gave Burg and Maglicic a copy of a draft
 regional instruction concerning the assignment and use of
 government-owned vehicles.  McCann informed Burg and Maglicic that
 because of financial and budgetary limitations, the Region would change
 its policy regarding the assignment and use of government-owned vehicles
 and that the regional instruction would apply to all OSHA employees in
 the region.  Burg asked McCann to negotiate with AFGE concerning the
 adverse impact of the proposed regional instruction.
 
    On February 5, 1981 the Union, by letter, requested a meeting to
 negotiate concerning the adverse impact of the regional instruction.  On
 February 6, 1981 Maglicic submitted proposals regarding the proposed
 regional instruction and the assignment of government-owned vehicles.
 
    On February 9, 1981 Burg received from McCann a response to AFGE's
 February 5, 1981 letter in which McCann stated he was dealing with the
 Union solely for informational purposes and refused to negotiate with
 the Union concerning the regional instruction.
 
    On February 13, 1981 Maglicic, Burg, McCann, OSHA Labor Relations
 Officer Richard Izzo, McCann's Special Assistant Charlie Smith, and OSHA
 representative Gerald Farenga met.  The Union representatives requested
 again to bargain about the adverse impact of the proposed regional
 instruction changing the assignment of government-owned vehicles.  The
 OSHA representatives refused to bargain with the AFGE representatives
 about such adverse impacts.
 
    On or about February 18, 1981, without notice to the Union, the basic
 provisions of the draft instruction concerning the use of
 government-owned vehicles were implemented in the Chicago Region and by
 all OSHA Area Directors and remain in force and effect.  At all times
 material herein OSHA has refused to bargain about the adverse impact of
 the alleged changes in the use of government-owned vehicles.  /4/ No
 written agency policy statement was issued.
 
    Chapter 400 of the Department of Labor Regulations (DLMS-7 Chapter
 400) had been in effect prior to the negotiation of the collective
 bargaining agreement between DOL and the Union.  DLMS-7 Chapter 400
 paragraphs 411 and 434(a) provide:
 
          411 Criteria for GSA Car Assignments.  Considering direct and
       indirect costs to the DOL, assignment of GSA cars to individual
       drivers is advantageous only when an average of more than 1,000
       miles per month of official travel can be anticipated.  Cars
       normally will not be assigned to employees unless this level of
       utilization can be anticipated.  Exceptions may be made for
       drivers who use cars for official business at least daily or
       almost daily, or when trips of more than 10 days are made by
       drivers who do not meet the 1,000 miles-per-month official travel
       requirement.  Vacations or other leave do not affect this
       determination nor will temporary details of work assignments
       terminate eligibility for the use of a GSA vehicle unless these
       exceed the period allowed or remaining on the current DL Form
       1-289.  Employees may be assigned a GSA car if their supervisors
       certify, and provide written justification, that a compelling
       official need overrides the 1,000-miles requirement, and an
       overall savings to the Government is clearly indicated.  DOL
       Agency Administrative Officers must approve or disapprove these
       exceptions for field employees.  Copies of the justification for
       these exceptions will accompany the request to the organization
       acquiring the car (the RAMO in the field or the Division of Supply
       and Property Management, Office of Administrative Services, DAPS,
       OASAM, for the National Offices).
 
          434 Identification of Vehicles.  All vehicles are to be
       identified in accordance with GSA regulations, except unmarked
       vehicles used where identification would be contrary to the public
       interest.  Identification plates are furnished by the GSA.
 
          a.  Authorization for use of unmarked vehicles has been granted
       for investigative, law enforcement, and compliance duties in
       accordance with Federal Property Management Regulations
       101-38.605.  The DOL Agencies which may authorize the use of
       unmarked vehicles, as justified, are:
 
          (1) Labor-Management Services Administration.
 
          (2) Occupational Safety and Health Administration.
 
          (3) Employment Standards Administration.
 
          (4) Bureau of Apprenticeship and Training, Employment and
       Training Administration.
 
          b.  If unmarked vehicles for other staffs are deemed desirable,
       justification statements will be submitted to the OASAM or the
       appropriate RAMO for case-by-case consideration.
 
    Compliance Officers and Industrial Hygienists are employed by OSHA in
 the Chicago Region and are in the unit represented by AFGE.  In the
 Chicago Region, from at least 1973 until on or about February 18, 1981,
 Compliance Officers and Industrial Hygienists at all grade levels were,
 if requested, assigned GSA vehicles without any limitation concerning
 miles driven.  The employees were given the GSA car keys, credit card
 and car packet by their supervisors.  These employees often were
 required to report first thing in the morning to field worksites in
 factories, etc. and then, at the close of the day the employees returned
 home.  /5/ Employees used the GSA cars, without restriction, for travel
 to and from their residences and field worksites and/or the Area
 Offices.  Compliance Officers and Industrial Hygienists utilize
 extensive and heavy equipment and printed materials in performing their
 duties.  They were able to store the inspection equipment and printed
 material in the individually assigned GSA cars, /6/ rather than store
 the equipment and material at their desks and have to load and unload
 the cars every day.
 
    The policy concerning the utilization of government-owned vehicles
 instituted in February 1981 resulted in a number of changes.
 Government-owned cars were no longer assigned to individual employees
 and the employees were required to return the cars that had been
 individually assigned.  The GSA cars were pooled at the OSHA Area
 Offices and the Compliance Officers and Industrial Hygienists had to
 request the use of a GSA car from the supervisors on a daily basis.
 Such a request was required each time a GSA car was needed to conduct a
 field visit.  The employee was required to pick up the GSA car from the
 pool at the beginning of each workday and to return it at the end of the
 day.  The inspection equipment and printed material had to be loaded
 into each GSA car every morning and removed every evening and stored in
 the office.  There were substantially fewer GSA cars assigned to the
 OSHA Area Offices.  Compliance Officers and Industrial Hygienists using
 GSA owned vehicles were no longer allowed to travel from their homes
 directly to field worksites and return, but rather had to go to their
 offices to obtain and then return the GSA cars on a daily basis.  In
 this regard such employees were encouraged to utilize privately owned
 cars because the number of GSA cars was reduced and employees could go
 directly from home to field worksite and visa versa, in a privately
 owned car.  Finally the employees were no longer able to use the GSA
 cars to commute between their residences and the Area Offices.
 
                        Discussion and Conclusions
 
    The record establishes that on or about February 18, 1981 a change
 occurred.  The past practice with respect to the assignment and
 utilization of GSA cars by unit employees was substantially changed.  It
 is concluded that such a change altered, in a very fundamental way, the
 manner in which employees conducted their business and therefore was a
 substantial change in working conditions.  It affected, or could be
 reasonably foreseen to affect, how the individual employees went to the
 worksites, how often and where they carried and stored the inspection
 equipment and printed material, how many inspections they could conduct
 and how their performance would be appraised.  Absent any privilege,
 Respondent would be required to notify AFGE of such an anticipated
 change and, upon request, to bargain with AFGE concerning the decision,
 its impact and its implementation.  Cf. Department of the Navy, Naval
 Underwater Systems Center, Newport Naval Base, 3 FLRA No. 64 (1980);
 Department of the Treasury, Internal Revenue Service, Jacksonville
 District, 3 FLRA No. 103 (1980);  Internal Revenue Service and
 Brookhaven Service Center, 4 FLRA No. 30 (1980);  and Office of Program
 Operations, Field Operations, Social Security Administration, San
 Francisco Region, 9 FLRA 73 (1982).
 
    Respondent urges that it had no obligation to bargain because its new
 or changed policy with respect to the use of GSA cars was "consistent"
 with the collective bargaining agreement and Chapter 400 DLMS-7.  This
 contention is rejected.  The mere fact that Respondent acted
 consistently with certain terms of the collective bargaining agreement
 and DLMS does not mean that Respondent did not change existing working
 conditions.  Both the collective bargaining agreement and DLMS gave OSHA
 broad discretion as to the utilization and assignment of the GSA cars.
 OSHA had consistently, over a 9 or 10 year period, exercised that
 discretion by assigning cars to individual employees.  That then became
 a working condition cf. Department of the Navy, Portsmouth Naval
 Shipyard, Portsmouth, New Hampshire, 5 FLRA No. 48 (1981);  Department
 of the Navy, Naval Underwater System, Newport Naval Base, supra;  and
 Internal Revenue Service, Brookhaven Service Center, supra.  The
 contract and DLMS, by recognizing the supervisor's discretion in
 assigning GSA cars, merely state that the Union cannot bargain over any
 change in the exercise of that discretion.  In neither the contract nor
 DLMS has the Union stated that it gives up, or waives, its statutory
 right to bargain over the impact and implementation of the subject
 change.  Any waiver of such a statutory right must be clear and
 unmistakable Department of the Air Force, Scott Air Force Base,
 Illinois, 5 FLRA No. 2;  Social Security Administration, Mid-America
 Service Center, Kansas City, Missouri, 9 FLRA 229 (1982);  and see also
 Library of Congress, 9 FLRA 427 (1982).  There was no such waiver, with
 respect to AFGE's right to bargain over the impact and implementation of
 the change in the assignment of GSA cars.  Thus the contract, although
 it may have waived whatever right AFGE might have had concerning the
 decision to change the assignment of government-owned cars, it did not
 waive the Union's right to bargain concerning the impact and
 implementation of any such discretion to change the use of GSA vehicles.
 
    Respondent urges that pursuant to the provisions of Article 2 Section
 6 of the Contract, entitled "Past Practices", the practice of assigning
 cars to individual employees was not a "past practice" because it was
 not in writing.  However, this position rests on a misinterpretation and
 misapplication of the clear language of the contract and a further
 erroneous assumption that because AFGE and Respondent used the term
 "past practice" in the contract, that phrase has the same meaning when
 used by the FLRA in interpreting the Statute.  Article 2 Section 6 of
 the contract merely provides that if the parties have any local or side
 agreements, that are not in conflict with the National agreement, the
 side and local agreements remain in full force and effect unless the
 parties mutually agree to a change on modification.  Article 2 Section 6
 of contract does not attempt to deal with existing working conditions
 that have not been reduced to writing and incorporated into a written
 agreement.  /7/ Such existing working conditions are not subject to
 Article 2 Section 6 of the contract and accordingly are governed by the
 Statute, as interpreted by the FLRA, and by Article 2 Section 5 of the
 Contract.  Again, as discussed above, any waiver by AFGE of its right to
 be notified and to bargain about the adverse impact that would result
 from changes in existing working conditions would have to be clear and
 unmistakable, Department of the Air Force, Scott Air Force Base,
 Illinois, supra and Social Security Administration, Mid-America Service
 Center, Kansas City, Missouri, supra.  There is no such waiver in the
 subject situation.
 
    In light of all of the foregoing it is concluded that Respondent
 violated Sections 7116(a)(1) and (5) of the Statute by changing the
 existing working conditions with respect to assignment of
 government-owned vehicles and refusing to negotiate with the Union
 concerning the impact /8/ and implementation of such change.  Cf. U.S.
 Customs Service, Region V, New Orleans, Louisiana, 9 FLRA 116 (1982);
 and U.S. Department of Justice, U.S. Immigration and Naturalization
 Service, 9 FLRA 253 (1982).
 
    General Counsel of the FLRA urges additionally that OSHA's refusal to
 bargain with AFGE concerning the impact and implementation of the change
 in the assignment of the government-owned vehicles was such a clear and
 patent of Article 2 Section 5 of the collective bargaining agreement as
 to constitute a violation of Sections 7116(a)(1) and (5) of the Statute.
 
    Article 2 Section 5 of the collective bargaining agreement provides
 that Respondent must notify AFGE of any proposed changes "relating . . .
 to working conditions of bargaining employees . . ." and upon request by
 AFGE, meet and confer "concerning any negotiable aspects of the proposed
 change and/or its impact on bargaining unit employees." Normally a mere
 allegation of breach of contract is not an unfair labor practice and the
 parties must resort to the procedures provided for contract
 interpretation and enforcement.  Cf. Iowa National Guard and National
 Guard Bureau, 8 FLRA 500 (1982).  However where the breach is clear and
 patent and is so fundamental to the parties' basic statutory rights and
 status as to undermine and make a mockery of the basic collective
 bargaining relationship, the FLRA has quite properly recognized that
 such a breach does rise to the level of unfair labor practice.  Veterans
 Administration Hospital, Danville, Illinois, 4 FLRA No. 59 (1980).  It
 is concluded that OSHA's refusal to bargain with AFGE concerning the
 impact of such an important and far reaching change as the change in the
 assignment of GSA cars was such a clear and patent breach of the
 collective bargaining agreement, that, by its nature, it undermined the
 basic collective bargaining relationship established by the Statute.
 Accordingly OSHA's refusal to bargain, as clearly required by the
 collective bargaining agreement, constituted a violation of Sections
 7116(a)(1) and (5) of the Statute.
 
    Having concluded that Respondent violated Sections 7116(a)(1) and (5)
 of the Statute it is necessary to fashion a meaningful remedy that fully
 corrects the violations, if the Statute is, to any degree, to achieve
 its aims of protecting the rights of federal employees to engage in
 meaningful collective bargaining.  A status quo ante remedy would
 normally appear to be the most effective means of correcting a violation
 like the one found herein, providing the parties with an opportunity to
 start over and proceed according to law, /9/ it is sometimes unclear
 when a status quo ante order is appropriate.  In the subject case,
 because OSHA apparently does not have sole authority to obtain whatever
 number of cars it desires from GSA /10/ I am reluctant to recommend a
 status quo ante remedy.  But see U.S. Department of Justice, U.S.
 Immigration and Naturalization Service, supra.  However, in order to
 fashion a meaningful remedy that returns the parties, as nearly as
 possible, to the situation they would have been in if OSHA had not
 violated the Statute, I will recommend that, inter alia, OSHA must, upon
 request bargain and reach agreement with the Union concerning the
 adverse impact of the change in assigning GSA cars and make whole any
 employee for any loss he incurred as a result of the change for the
 period February 18, 1981 until the date agreement is reached.
 
    Having found and concluded that OSHA violated Sections 7116(a)(1) and
 (5) of the Statute, I recommend that the Authority issue the following:
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and Section 7118 of the Statute, the
 Authority hereby Orders, that the United States Department of Labor,
 Occupational Safety and Health Administration, Chicago, Illinois, shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing, upon request, to bargain with
       American Federation of Government Employees, National Council of
       Field Labor Locals, AFL-CIO the exclusive collective bargaining
       representative of its employees, concerning the impact and
       implementation of any change in the assignment of government-owned
       vehicles to employees.
 
          (b) In any like or related manner interfere with, restrain, or
       coerce any employee in the exercise of right assured by the
       Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purpose and policies of the Statute:
 
          (a) Upon request bargain and reach agreement with American
       Federation of Government Employees, National Council of Field
       Labor Locals, AFL-CIO concerning the impact of the change in the
       assignment of government-owned vehicles to employees instituted in
       February 1981 and, make whole any employee for any loss he might
       have incurred because of the change in assignment of
       government-owned cars for the period from February 18, 1981 until
       the date agreement is reached.
 
          (b) Post at its facilities copies of the attached Notice on
       forms to be furnished by the Federal Labor Relations Authority.
       Upon receiving such forms, they shall be signed by an appropriate
       official of the Respondent and shall be posted and maintained by
       such official for 60 consecutive days thereafter, in conspicuous
       places, including bulletin boards and all other places where
       notices to employees are customarily posted.  Reasonable steps
       shall be taken to insure that such notices are not altered,
       defaced, or covered by other material.
 
          (c) Pursuant to Section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region V, in writing,
       within 30 days from the date of this Order, as to what steps are
       being taken to comply herewith.
 
                                       SAMUEL A. CHAITOVITZ
                                       Administrative Law Judge
 
 Dated:  August 31, 1982
         Washington, D.C.
 
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO 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 fail and refuse, upon request to bargain with American
 Federation of Government Employees, National Council of Field Labor
 Locals, AFL-CIO the exclusive collective bargaining representative of
 its employees, concerning the impact and implementation of any change in
 the assignment of government-owned vehicles to employees.  WE WILL NOT,
 in any like or related manner, interfere with, restrain, or coerce our
 employees in the exercise of rights assured by the Statute.  WE WILL
 upon request bargain and reach agreement with American Federation of
 Government Employees, National Council of Field Labor Locals, AFL-CIO
 concerning the impact of the change in the assignment of
 government-owned vehicles to employees instituted in February 1981 and,
 make whole any employee for any loss he might have incurred because of
 the change in the assignment of government-owned vehicles for the period
 from February 18, 1981 until the date of agreement is reached.
                                       (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 its provisions, they
 may communicate directly with the Regional Director of the Federal Labor
 Relations Authority whose address is:  175 W. Jackson Blvd., Suite
 A-1359, Chicago, IL 60604 and whose telephone number is (312) 886-3468.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ See, e.g., Department of the Air Force, U.S. Air Force Academy, 6
 FLRA 548 (1981);  and Office of Program Operations,