19:0497(65)CA - Labor, Washington, DC and ESA, Region 8 Denver, CO and AFGE Local 898 -- 1985 FLRAdec CA



[ v19 p497 ]
19:0497(65)CA
The decision of the Authority follows:


 19 FLRA No. 65
 
 U.S. DEPARTMENT OF LABOR
 WASHINGTON, D.C. AND EMPLOYMENT
 STANDARDS ADMINISTRATION, REGION 8
 DENVER, COLORADO
 Respondents
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 898
 Charging Party
 
                                            Case No. 7-CA-1109
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondents had not engaged
 in the unfair labor practices alleged in the complaint, and recommending
 that the complaint be dismissed in its entirety.  The General Counsel
 and the Charging Party filed exceptions to the Judge's Decision, and the
 Respondents filed an opposition to the exceptions.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommended Order, only to the extent
 consistent herewith.
 
    The record indicates that since about 1964 compliance officers within
 the Respondent's Denver, Colorado Region have, upon request, received
 individually assigned government-owned vehicles to assist them in the
 conduct of field investigations, which comprise some 80% of their job
 duties.  Employees were allowed to park their assigned vehicles at their
 homes overnight, to store job related equipment and materials in the
 vehicles, and to use them, as required, for home to office travel.  On
 March 5, 1981, the U.S. Department of Labor (Respondent Agency), at
 which level there exists the unit of exclusive recognition herein, wrote
 to the National Council of Field Labor Locals (NCFLL), the exclusive
 representative and the Charging Party's parent organization, concerning
 a proposal to substantially reduce automobile travel expenses in the
 Agency's Employment Standards Administration.  The letter indicated that
 one of the "strategies" being suggested to the individual Regional
 Administrators to achieve this objective was that the practice of making
 individual assignments of government-owned vehicles be discontinued and
 that a system of vehicle "pooling" be put into effect.  By letter dated
 March 9, 1981, the NCFLL, on behalf of its constituent locals, responded
 to the above proposal by demanding negotiations "over procedures and
 appropriate arrangements regarding the 'strategies' that have been
 suggested to the Regional Administrators that impact on bargaining unit
 employees." Subsequently, on March 24, 1981, at a regularly scheduled
 quarterly labor-management meeting with the Agency, the NCFLL renewed
 its request to bargain concerning the impact and implementation of the
 changes in the vehicle usage policy which were occurring nationwide.
 The Agency declined to bargain with the Union, asserting essentially
 that the language of the collective bargaining agreement between the
 parties had reserved to management complete discretion in the area of
 vehicle assignment and usage.  Additionally, on March 20, 1981, the
 Employment Standards Administration, Region 8 (Respondent Activity)
 announced by memorandum to its employees the discontinuance of
 individual government-owned vehicle assignments.  No notice of this
 change was given to the Charging Party.
 
    The complaint herein alleges that the Respondents violated section
 7116(a)(1) and (5) of the Statute by unilaterally implementing a change
 in the policy of making individual vehicle assignments to the employees
 at the Denver and Colorado Springs, Colorado offices without first
 affording the Charging Party and/or the NCFLL an opportunity to bargain
 concerning the substance, impact and implementation of the change.  As a
 separate violation of section 7116(a)(1) and (5), the complaint also
 alleges that the Respondent Agency refused to bargain with the NCFLL
 concerning its overall plan to reduce government-owned vehicle usage
 expenses, of which the change involving individual vehicle assignments
 was one aspect.
 
    The Judge found that the Respondents' conduct in terminating the
 long-standing practice of assigning government-owned vehicles to its
 field employees on an individual basis (and instituting instead a system
 of vehicle pooling) did not violate the Statute.  Based upon an
 evaluation of the overall bargaining history of the parties that
 culminated in their most recent agreement, as well as pertinent
 agreement language, the Judge found that the Union had consciously
 yielded to the Respondents complete discretion concerning the assignment
 and use of vehicles during the term of the agreement, and that the
 record supported a finding of a clear and unequivocal waiver on the part
 of the Union concerning any rights it might otherwise have had to
 negotiate any aspect of changes such as those made by the Respondents.
 While the Authority adopts the Judge's conclusion concerning the
 substance of the decision, the Authority does not agree that the Union
 waived its right to bargain over procedures and appropriate arrangements
 for employees adversely affected by the termination of individual
 vehicle assignments within the Denver Region.
 
    The Authority has previously held that "a waiver will be found only
 if it can be shown that the exclusive representative clearly and
 unmistakably waived its right to negotiate." See, e.g., Department of
 the Air Force, U.S. Air Force Academy, 6 FLRA 548 (1981);  Office of
 Program Operations, Field Operations, Social Security Administration,
 San Francisco Region, 10 FLRA 172 (1982).  In the Authority's view, the
 agreement language cited by the Respondents and relied on by the Judge
 does not constitute such a clear and unmistakable waiver.  See also U.S.
 Department of Labor, Occupational Safety and Health Administration,
 Chicago, Illinois, 19 FLRA No. 60 (1985), wherein the same assertion was
 made that the identical agreement language constituted a waiver of the
 union's right to bargain over procedures and appropriate arrangements
 for employees adversely affected by the change in government-owned
 vehicle usage in another organizational component of the same Agency as
 is involved herein.  In that case, the Authority adopted the Judge's
 finding that the agreement did not contain a clear and unmistakable
 waiver of the union's right to bargain over procedures and appropriate
 arrangements for adversely affected employees.  In the instant case, the
 Authority finds that there was an obligation to bargain over procedures
 and appropriate arrangements for employees adversely affected by the
 termination of individual vehicle assignments within the region and that
 the Respondents' failure to do so violated section 7116(a)(1) and (5) of
 the Statute.  With respect to that portion of the complaint alleging a
 failure of the Respondent Agency to bargain with the NCFLL, the
 Authority further finds that the Agency violated section 7116(a)(1) and
 (5) of the Statute by refusing to bargain, as requested, over procedures
 and appropriate arrangements for employees adversely affected by the
 reduction in government-owned vehicle usage expenses.
 
    To remedy the unfair labor practice conduct, the Authority finds that
 it will effectuate the purposes and policies of the Statute to order the
 Activity to bargain, upon request, over procedures and appropriate
 arrangements for employees adversely affected by the termination of
 individual vehicle assignments;  to order that the Agency bargain over
 procedures and appropriate arrangements for employees adversely affected
 by any proposed reductions in government-owned vehicle usage expenses;
 and to order, consistent with law and regulation, that employees be made
 whole for losses incurred as a result of the change and for which they
 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, Washington, D.C. and Employment
 Standards Administration, Region 8, Denver, Colorado, shall:
 
    1.  Cease and desist from:
 
    (a) Refusing to bargain with the National Council of Field Labor
 Locals, American Federation of Government Employees, AFL-CIO, the
 exclusive representative of its employees, over procedures and
 appropriate arrangements for employees adversely affected by the
 reduction in government-owned vehicle usage expenses.
 
    (b) Failing to notify the National Council of Field Labor Locals,
 American Federation of Government Employees, AFL-CIO, or its designated
 representatives, of the termination of individual vehicle assignments at
 the Denver and Colorado Springs, Colorado offices and affording such
 representatives an opportunity to request bargaining over procedures and
 appropriate arrangements for employees adversely affected by such
 change.
 
    (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, negotiate with the National Council of Field Labor
 Locals, American Federation of Government Employees, AFL-CIO, concerning
 procedures and appropriate arrangements for employees adversely affected
 by any proposed reduction in government-owned vehicle usage expenses.
 
    (b) Upon request, negotiate over procedures and appropriate
 arrangements for employees adversely affected by the termination of
 individual vehicle assignments at the Denver and Colorado Springs,
 Colorado offices.
 
    (c) Consistent with law and regulation, make whole any employees for
 losses incurred as a result of the termination of individual vehicle
 assignments and for which they have not otherwise been reimbursed.
 
    (d) Post at its facilities within the Employment Standards
 Administration, 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 both the head of the Employment Standards
 Administration, or a designee, and the Regional Administrator for Region
 8, or a designee, and shall be posted and maintained for 60 consecutive
 days thereafter, 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.
 
    (e) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region VII, 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 refuse to bargain with the National Council of Field Labor
 Locals, American Federation of Government Employees, AFL-CIO, the
 exclusive representative of our employees, over procedures and
 appropriate arrangements for employees adversely affected by the
 reduction in government-owned vehicle usage expenses.  WE WILL NOT fail
 to notify the National Council of Field Labor Locals, American
 Federation of Government Employees, AFL-CIO, or its designated
 representatives, of the termination of individual vehicle assignments at
 the Denver and Colorado Springs, Colorado offices and afford such
 representatives an opportunity to request bargaining over procedures and
 appropriate arrangements for employees adversely affected by such
 change.  WE WILL NOT in any like or related manner interfere with,
 restrain, or coerce our employees in the exercise of their rights
 assured by the Federal Service Labor-Management Relations Statute.  WE
 WILL, upon request, negotiate with the National Council of Field Labor
 Locals, American Federation of Government Employees, AFL-CIO, concerning
 procedures and appropriate arrangements for employees adversely affected
 by any proposed reduction in government-owned vehicle usage expenses.
 WE WILL, upon request, negotiate over procedures and appropriate
 arrangements for employees adversely affected by the termination of
 individual vehicle assignments at the Denver and Colorado Springs,
 Colorado offices.  WE WILL, consistent with law and regulation, make
 whole any employees for losses incurred as a result of the termination
 of individual vehicle assignments and for which they have not otherwise
 been reimbursed.
                                       (Agency)
                                       (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 VII,
 Federal Labor Relations Authority, whose address is:  1531 Stout Street,
 Suite 301, Denver, Colorado 80202, and whose telephone number is:  (303)
 837-5224.
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No.: 7-CA-1109
    James E. Culp,
       Attorney for Respondents
 
    Cathy A. Auble and
    Joseph Swerdzewski,
       Attorneys for the General Counsel, Federal Labor Relations
       Authority
 
    Before:  Isabelle R. Cappello
       Administrative Law Judge
 
                                 DECISION
 
    This is a proceeding under Title VII of the Civil Service Reform Act
 of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq. (Supp.
 V, 1981), commonly known as the Federal Service Labor-Management
 Relations Statute, and hereinafter referred to as the "Statute", and the
 rules and regulations issued thereunder and published at 5 CFR 2411 et
 seq.
 
    Pursuant to a charge filed on March 30, 1981, by the Charging Party,
 the Acting Regional Director of Region 7 of the Federal Labor Relations
 Authority (hereinafter, the "Authority") investigated and, on November
 22, 1982, filed the complaint initiating this proceeding.
 
    The complaint alleges that Respondent U.S. Department of Labor,
 Washington, D.C. (hereinafter, "Respondent-Washington" or "DOL") and
 Respondent Employment Standards Administration, Region 8, Denver,
 Colorado (hereinafter, "Respondent-Denver") have violated 5 U.S.C.
 7116(a)(1) and (5).  /1/ It is alleged that Respondent-Washington
 violated these provisions on or about March 24, 1981, when it refused to
 bargain over proposed reduction in government-owned, vehicle-usage
 expenses, and that Respondent-Denver violated them on or about March 20,
 1981, when it unilaterally changed the working conditions of its
 employees by cancelling the individual assignment of government-owned
 vehicles to employees in its Denver and Colorado Springs offices and by
 substituting the pooling of government-owned vehicles in these offices,
 without providing prior notice to the National Council of Field Labor
 Locals of the American Federation of Government Employees (hereinafter,
 "NCFLL") or Local 898 and affording them the opportunity to bargain over
 the substance, impact and implementation of this change.
 
    Respondents deny violating the Statute.  They argue that the 1981
 changes did not change working conditions and that the NCFLL waived any
 right to impact bargaining by virtue of Articles 2 and 17 of the
 applicable collective bargaining agreement (also referred to as the
 "contract").  See TR13-15.  They also argue that this is simply a case
 of contract interpretation, and should have been resolved through the
 contract's grievance-arbitration procedures.
 
    A hearing on the issues was held in Denver, Colorado, on January 13,
 1983.  The parties appeared, adduced evidence, and examined witnesses.
 Briefs were filed by the parties on February 14, 1983.  Based upon the
 record made in this proceeding, my observation of the demeanor of the
 witnesses, and the briefs, I enter the following findings of fact,
 conclusions of law, and recommended order.
 
                           Findings of Fact /2/
 
    1.  It is admitted that the Charging Party (also referred to as
 "Local 898") is a labor organization within the meaning of 5 U.S.C.
 7103(a)(4), that Respondent-Washington is an agency within the meaning
 of 5 U.S.C. 7103(a)(3), and that Respondent-Denver is a subordinate
 activity of Respondent-Washington.
 
    2.  It is admitted that NCFLL is the certified exclusive
 representative of all DOL employees stationed throughout the nation in
 field offices of Respondent-Washington, with certain exceptions not here
 relevant.  Local 898 is one of many affiliates of NCFLL.
 
               The 1978 contract and its bargaining history
 
    3.  The NCFLL and DOL have been parties to a collective bargaining
 agreement ("contract") since January 28, 1970.  See R1.24.  On August
 17, 1978, the 1970 contract was replaced by one which has been in effect
 during all times material to this proceeding.  See GC2.112.
 
    4a.  Article 17 of the 1978 contract provides as follows:
 
          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.
 
          Section3-- 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.
 
 See GC2.42-43.  There was no similar article in the 1970 contract which
 mentioned GSA cars only in connection with safety and health.
 
    4b.  Doyle Loveridge testified to the intent of the parties in
 negotiating Article 17 of the contract.  He was a member of management's
 negotiating team and attended all bargaining sessions.  Part of his
 testimony was as follows.  During negotiations on the 1978 contract, DOL
 "wanted to tie down very specifically and carefully how (GSA and POV)
 cars (were) to be used so that (it) could control (its) expenses and
 control how (it would) get (its) work done." (TR84).  /3/ GSA cars are
 "a very critical budget item" to the Wage and Hour Division, which is a
 part of the Employment Standards Administration ("ESA") of DOL, and to
 the Occupational Safety and Health Administration ("OSHA"), another
 subordinate activity of DOL.  ESA and OSHA require extensive travel of
 their employees, in carrying out their responsibilities.  DOL felt that
 it had to maintain discretion over the use of GSA cars, in negotiating
 Article 17 of the contract.  Therefore, DOL insisted that the key word
 "may" be used in referring to GSA cars being assigned to employees.  The
 NCFLL bargained for use of the word "will." During the negotiations over
 Article 17 "the concept of pooling or renting cars" was specifically
 considered (TR89 and see also 103-104 and 115-116).  Management pointed
 out that, while it recognized its obligation to furnish vehicles to
 compliance officers ("CO's") of ESA and OSHA, there were many ways of
 doing that, including assignment of cars, pooling of cars, and public
 transportation in metropolitan areas.  These various methods were
 discussed at great length.  NCFLL took the bargaining position that, if
 employees "wanted an assignment of a car to them individually, that if
 they required the use on a daily basis, that management must assign a
 car" (TR89-90).  Management insisted that it had to have "discretion to
 provide transportation in other methods" (TR90).  There were no specific
 negotiations over how assignment of cars was to be terminated.  All the
 union members of the bargaining team were from the Wage and Hour
 Division of ESA and were "very familiar" with the usage of GSA and POV
 cars because it was so important to their activities" (TR89).
 
    4c.  Howard Butler also testified as to the intent of the parties in
 negotiating Article 17 of the contract.  He was president of NCFLL, at
 the time of the negotiations, and also attended all bargaining sessions.
  He is a compliance officer for the Wage and Hour Division.  Part of his
 testimony was as follows.  Article 17 "was standards negotiated between
 the Council and the Department whereas employees of the Department of
 Labor if they met the standards would expect to receive from the U.S.
 Department of Labor either a GSA vehicle or a leased vehicle" (TR 129
 and see also T4130 and 131).  The "immediate supervisor" of the
 individual employee applied "the test", namely whether a field employee
 "had to go out to temporary duty points on a regular basis" to perform
 "the majority of their work" (TR130).  If employees met this test, they
 would "(a)bsolutely" have a vehicle to do so, which would include
 "individual assignments of cars" (TR130).  "Absolutely", became "I
 think" when, on cross-examination, Counsel for Respondents asked whether
 Article 17 meant that "management provided GSA cars to individuals on an
 individual basis" (TR135) and after Mr. Butler conceded that the word
 "may," eventually adopted in Article 17, does mean that "it is not
 required" (TR134).  He also testified:  "I think we had mandatory
 language," when asked whether the union "did propose mandatory language
 for the requirement that the government provide cars for these
 individuals" (TR134).  Mr. Butler agreed with Mr. Loveridge that there
 were no specific negotiations on how to terminate use of
 individually-assigned cars.
 
    4d.  Mr. Loveridge's testimony was given in a confident manner, and
 was consistent with a rational reading of the language of Article 17.
 Mr. Butler seemed less sure of his facts;  and, if he meant to testify
 that employees had an absolute right to an individually-assigned car,
 his testimony is inconsistent with the discretionary language adopted.
 Where their testimony is in conflict, I credit that of Mr. Loveridge.
 Specifically, I find that Section 1(A) of Article 17 clearly means that
 management reserves a discretionary right to assign GSA vehicles which
 includes assigning them on a pooled or doubling-up basis and requiring
 them to be parked at the office, overnight.
 
    5a.  Article 2 of the 1978 contract deals with "Governing Laws and
 Regulations." Section 5 provides as follows:
 
          Section 5-- Management Proposals for Change During the Term of
       the Agreement
 
          (A) Management agrees to transmit to the NCFLL proposed changes
       relating to personnel policies, practices, and matters affecting
       working conditions of bargaining unit employees, or which impact
       on them, proposed during the term of this Agreement and not
       covered by this Agreement, as far in advance as possible.
 
          (B) Upon receipt of such a proposed change from Management, the
       NCFLL may, within 15 working days, request negotiations concerning
       the proposed change.
 
          (C) Upon timely request from the NCFLL, the parties shall meet
       and confer within 30 calendar days concerning any negotiable
       aspects of the proposed change and/or its impact on bargaining
       unit employees.
 
          (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.
 
 See GC2.4-5.
 
    5b.  The 1970 contract, in Article 4, contained its Governing
 Regulations" (R1.3);  and it contained no section similar to that quoted
 in finding 5a, supra.  See R1.3-4.  Article 5 of the 1970 contract did
 contain the following language, however:  " . . . any prior benefits and
 practices and understandings which have been mutually acceptable to the
 parties which are not specifically altered by this Agreement shall not
 be changed unless mutually agreed to by the parties" (R1.4-5).
 
    5c.  Mr. Loveridge gave undisputed testimony as to the intent of
 Section 5 of Article 2, as quoted in finding 5a, supra.  He testified
 that management negotiated "circumstances where impact negotiations
 would have been required," and "clearly intended to limit those where it
 would be required and to those that are not specifically negotiated
 during this process" (TR93 and see also TR94).  Management made
 proposals to accomplish this.
 
    5d.  Mr. Loveridge also testified that the NCFLL made proposals which
 would have resulted in everything going to it for impact negotiation.
 See TR94-95 and R3i).  Discussions took place on what the management
 language meant, namely that subjects covered by the contract would
 "automatically be excluded from referral" (TR95).  The language proposed
 by management became the final language.
 
    See TR95 and compare R3k.4 with the language of Section 5 of Article
 2 set forth in finding 5a, supra.  Mr. Butler, called as a rebuttal
 witness, did not dispute this testimony of Mr. Loveridge concerning
 Section 5 of Article 2.  Nor did any other union negotiator.
 Accordingly, I credit the testimony of Mr. Loveridge, and find that
 Section 5 of Article 2 was intended to limit bargaining, and not to
 require it as to matters covered by the contract, for example, the
 discretionary assignment of vehicles to employees, set forth in Article
 17, as quoted in finding 4a, supra.
 
    6a.  Section 6 of Article 2 of the 1978 contract provides:
 
          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.
 
 See GC2.5.
 
    6b.  Mr. Loveridge also testified as to the intent of Section 6 of
 Article 2 of the 1978 contract, as quoted in finding 6a, supra.  He
 testified that:
 
          Well, at the time of negotiation it was recognized that there
       were a lot of agreements in the various locals that may have been
       reached and that were not familiar to everyone and it was very
       clear that we were negotiating a new contract, that we wanted to
       include and make this as comprehensive a contract as possible, and
       that it would not include any part practice that would carry
       forward with the exception of any of those that had been reduced
       to writing, and anything that had not been included in this
       contract.  If we bargained and negotiated about an item then there
       would be past practice carried forward to that item.
 
 (TR96).  He testified that there were discussions on this matter, and
 that NCFLL acquiesced in the language proposed by management.  Mr.
 Butler, testifying as a rebuttal witness, did not dispute the testimony
 of Mr. Loveridge concerning Section 6 of Article 2.  Accordingly, I
 credit this testimony of Mr. Loveridge.
 
                             Notice procedures
 
    7.  Under the 1978 contract, Respondent-Washington notifies the NCFLL
 of Article 2, Section 5 changes.  For local changes, notice is given to
 designated regional representatives, with a copy to the president of
 NCFLL.
 
                     The alleged violative act by DOL
 
    8.  On March 5, 1981, the Director of the Division of Collective
 Bargaining for DOL sent Mr. Butler, the then President of NCFLL, the
 following letter.
 
          This is to advise you that ESA is proposing to reduce
       automobile travel expenses by 25%.  This reduction will apply to
       the total cost of automobile travel.  With regard to GSA car
       expenses the following strategies have been suggested to the
       Regional Administrators:
 
          (1) Pooling cars at the Area Office or Field Station.
 
          (2) Doubling-up in the utilization of cars.
 
          (3) Strict limitation of home-to-office travel in individually
       assigned cars by careful monitoring of daily work assignments
       and/or elimination or restriction of overnight parking privileges.
 
          (4) Review of current vehicle utilization to determine the
       propriety of individual car assignments, and elimination or
       reallocation of cars where the 3,000 miles per quarter objective
       and other relevant criteria are (sic) not being met.
 
          (5) Utilization of GSA motor pools for daily dispatch of
       vehicles.
 
          (6) Pooling cars between ESA agencies and/or other DOL
       agencies.
 
          If you have any comments on these changes, please contact this
       office within fifteen (15) days of receipt of this letter.
 
 See GS3(a) & (b).
 
    9.  On March 9, 1981, a vice-president of NCFLL, in a reply to the
 March 5 letter from DOL demanded "bargaining over procedures and
 appropriate arrangements regarding the 'strategies' that have been
 suggested to the Regional Administrators that impact on bargaining unit
 employees" (GC4).
 
    10.  At the next regular quarterly meeting between NCFLL and
 Respondent-Washington, held on March 24, 1981, the demand for bargaining
 as set forth in finding 9, supra, was placed on the agenda for
 discussion.  The representatives for the union did not challenge the
 right of management to do the things necessary to cut back on the
 budget, but requested impact and implementation bargaining, for
 instance, over "how you are going to reassign whatever cars are left
 over" (TR28).  The union also wanted to discuss "the impact this would
 have on the performance of the compliance officers who are required
 presently and were then also to maintain a certain level of performance
 or productivity," and what would be the impact on their performance
 appraisal, if these officers were forced to sit in an office, rather
 than be out in the field performing their investigative role (TR28).
 Also the union wanted to discuss the monetary impact on the CO's who,
 "facing the possible repercussions of a bad rating," would have "to pick
 up (their) keys and take out (their) own personal vehicle" (TR29).  The
 union also wanted to know about accident liability and overall
 reimbursement.  These union concerns were not limited to any geographic
 area.
 
    11.  Productivity standards for the CO's did not change in 1981.  The
 standards in 1981 and now require "at least 70 percent inspection
 activity on the part of the (CO's)" (TR34).
 
    12.  Management response to these union concerns was that it felt all
 these issues were addressed by Article 17 of the 1978 contract, that is,
 that it had "the right to assign" and "the right to take away the cars"
 (TR30).  There were no negotiations over this matter at the March 24
 meeting.  At a subsequent session of the March quarterly meeting, NCFLL
 raised the issue again.  Management response was that it would not
 negotiate the issue, but would let NCFLL know that "formally" (TR36).
 
    13.  In March 1981, "(j)ust about everyone had a vehicle individually
 assigned to them" (TR35).  Any change would "affect every office that
 lost cars from the east coast to the west coast" (TR35).
 
    14.  In July 1981, NCFLL placed the matter back on the national
 bargaining table, because it had not received a formal response to its
 bargaining demand of March 9.  No national-level bargaining over the
 matter has taken place, however.
 
    15a.  In the period of time between the March and July quarterly
 meetings, the NCFLL was advised by various presidents of its locals that
 CO's in ESA and OSHA were required to turn in their
 individually-assigned, government-owned vehicles, and that the ESA and
 OSHA regions were pooling these vehicles.
 
    15b.  In the New York City Region, ESA and OSHA employees were
 required to turn in their individually assigned cars.  These same
 employees experienced a cutback in availability of cars and were,
 therefore, subject to an arrangement whereby the remaining cars were
 available only upon special request by the employees.
 
    15c.  In Region 4, Atlanta, employees were required to turn in their
 individually assigned cars.  The cars were then pooled, parked at the
 office, and shared among the employees.  The result was that employees
 would not have a car available in order to make inspections and would
 consequently have to work in the office, waiting for a car to become
 available instead of making field trips.  In particular, one field
 station experienced a 50 percent cutback in car availability and,
 because the travel in that field station is extensive, two of the four
 employees do not have a car for a week at a time.
 
    15d.  In Region 6, Dallas, employees had to turn in their
 individually-assigned cars, and the cars were pooled.  The new rules
 required that any car checked out from the pool in the morning had to be
 returned by 4:30 that same afternoon.  A similar result occurred in
 Region 8, Denver, and Region 7, Kansas City.
 
    15e.  In Region 5, Chicago, the employees were required to turn in
 their individually-assigned vehicles.  An unspecified number of these
 vehicles were returned to GSA in order to realize a cash savings.  The
 result was that fewer cars were available for employee use, so the
 employees had to rotate usage of the cars.  Similar actions were taken
 in the other regions, and employees in those regions were likewise
 affected.
 
    15f.  Of the 10 DOL regions, all were affected by the change-- "some
 greater than others" (TR41).
 
              The alleged violative Act by Respondent-Denver
 
    16.  The charge in this case was filed by the President of Local 898,
 representing employees in Region 8, headquartered in Denver, Colorado.
 There are two other locals in Region 8-- Local 3416 and Local 3505.
 Each local has a designated regional representative, each of whom is
 supposed to receive notice of local changes in Region 8.  The president
 of Local 898 filed the complaint on the day after she learned, on March
 24, 1981, from a union steward, that, on March 20, 1981, the ESA Area
 Administrator of the Denver Area had sent out individual memorandums to
 each CO, in which he notified each of changes in ESA car assignments.
 See TR52 and GC5(A) and (b).  Management did not give notice of the
 change to the union's designated regional representatives.
 
    17.  The March 20, 1981, memorandum from the ESA Area Administrator
 read as follows:
 
          Effective 4-01-81, the following changes will be made which
       will affect all personnel assigned to the Denver Area office.
 
          Area Office.
 
          a.  All individual assignments of GSA vehicles on a permanent
       basis will be cancelled.
 
          b.  A pool of six GSA automobiles will be maintained for the
       use of all CO's assigned to the Denver AO.  Three GSA vehicles
       will be turned into GSA Motor Pool prior to 4-01-81.
 
          c.  The GSA pool cars will be parked in existing parking spaces
       at the Area Office overnight and on weekends.  Exceptions to this
       will be considered on an individual basis.
 
          d.  The GSA pool cars will be utilized by all CO's while
       conducting official business.
 
          e.  Any CO who elects to drive their own private vehicle, when
       a pool car is available, will be reimbursed at a reduced rate of
       16 1/2[ per mile.  If a pool car is not available, use of a
       privately owned vehicle, if approved by your supervisor, will be
       reimbursed at 22 1/2[ per mile.
 
          f.  If a pool car is not available and the CO does not wish to
       use their own vehicle, we will consider the use of a dispatch
       vehicles from GSA when economical, feasible, and necessary.
 
          Colorado Springs Field Station
 
          a.  All individual assignments of GSA vehicles on a permanent
       basis will be cancelled.
 
          b.  A pool of two GSA automobiles will be maintained for all
       CO's assigned to the Colorado Springs Field Station.
 
          c.  The GSA pool cars will be parked in existing parking spaces
       at the Field Station Office, overnight and on weekends.
       Exceptions to this will be considered on an individual basis.
 
          d.  The GSA pool cars will be utilized by all CO's while
       conducting official business.
 
          e.  Any CO who elects to drive their own private vehicle, when
       a pool car is available will be reimbursed at a reduced rate of 16
       1/2[ per mile.  If a pool car is not available, use of a privately
       owned vehicle, if approved by your supervisor, will be reimbursed
       at 22 1/2[ per mile.
 
          Fort Collins Field Station
 
          Use of the CO's privately owned vehicle in this Field Station
       will remain unchanged at this time.
 
          Bismarck, Fargo, Sioux Falls and Rapid City Field Stations.
 
          GSA automobile assignments in these Field Stations will remain
       unchanged at this time.
 
          Pueblo Field Station.
 
          GSA automobile assignments in this Field Station will remain
       unchanged at this time.
 
          If you have any questions regarding these changes please
       contact me.
 
    18.  Before implementation of the April 1, 1981 changes, the Area
 Administrator of the CO's, and a union steward met and discussed "how to
 implement what (the CO's) were told they were going to do (in the March
 20 memorandums)" (TR74).  During these discussions, the Area
 Administrator, Wallace Barker, told the steward and the CO's that
 "(h)ehad been ordered to get rid of some cars, cut the expenses," and
 that he had no latitude in the matter (TR75).  /4/
 
    19.  The ESA Denver area administrated by Mr. Barker covers Colorado
 and North and South Dakota.  CO's in this area are out in the field,
 doing investigative work, between 75 and 80 percent of their worktime.
 In the Denver Area Office, at the time of the March 20, 1981,
 memorandums set forth in finding 17, supra, there were 11 CO's.  The
 Denver area CO's spend between 80 to 90 percent of their worktime in the
 Denver metropolitan area.  They also cover Boulder and some smaller
 towns east and west of Denver.  CO's in seven field stations cover the
 rest of the geographic area under the jurisdiction of ESA's Region 8.
 
    20.  From 1964 until April 1, 1981, any CO in the Denver Area Office
 who wanted an individually-assigned GSA car had one assigned to him.
 They took the GSA cars home, parked them at their residences, and used
 them all week long, whenever they needed them.  After April 1, three
 compliance officers shared two GSA cars;  parked the cars downtown in
 designated parking spots, rather than taking them to their residences;
 and checked the cars in and out, each day.  One CO had always driven his
 own personal car, and continued to do so, after April 1.  Now, there are
 nine CO's.  One still drives his personal car.  The other eight are
 divided into pairs sharing one GSA car;  and there is a "floating
 vehicle" which each CO has every eighth day (TR63).
 
    21.  The sharing of GSA cars has affected the time in which some CO's
 can complete investigations.  Depending on where the field
 investigations are, extra time is spent in travel.  One CO estimated
 that, since the April 1, 1981, change, he has lost about an hour a day
 to travel time.  Because the cars are kept downtown, one CO, who lives
 13 miles from the Area Office, testified that he has found it
 "impossible" to schedule early morning and night interviews of
 employees, when an employer asks that the employees not be interviewed
 at the work establishment (TR67).  Before April 1, 1981, this GO
 generally left from his home to go to the establishment he was
 investigating, and then returned directly to his home.  He basically
 only came into the Denver Area Office to type up reports, do travel
 vouchers, and attend meetings.  This CO spends 60 percent less time in
 the field, since he lost his individually-assigned car.
 
    22.  In July 1981, critical elements were assigned to each job.  It
 seemed to one CO that, since this date, it has been harder to get an
 extension to complete an investigation on which there are problems.  He
 could not say whether he had a decrease in productivity requirements
 since July 1981.  He thought he was taking longer to do cases.
 
    23.  One CO in the Denver Area Office now uses his private car for
 official business about five times a month.  Before April 1, 1981, he so
 used his private car "maybe once a year" (TR72).  He finds that he now
 has to drive over 26 miles before he can charge a mile as a business
 expense.  This is because travel regulations now require that he deduct
 home-to-work travel.  It used to be that he was reimbursed for such
 travel.
 
    24.  Loss of the individually-assigned car has also meant the loss to
 the CO's of a "portable office" (TR73).  One CO used his car to keep
 supplies, handbooks, foul-weather equipment, and a hard hat.  With a
 shared car, such use is no longer "available" because of "too many
 people using a car and not replacing things" (TR73).  These materials
 weigh 50, 60, or 70 pounds.  He now carries needed materials in his
 briefcase.
 
    25.  The one CO who testified as set forth in findings 21, 22, 23,
 and 24, supra, was Donald Jack Klein.  He felt that his situation was
 "typical," and that all CO's in his office were "affected in the same
 manner" (TR76).  He knows this because they "talk all the time" (TR76).
 His testimony was basically unrebutted, except for testimony that
 studies had been made, since April 1, 1981, indicating that productivity
 of the CO's had increased since pooling of cars replaced
 individually-assigned cars.  See TR117, 120, and 121-124.  The methods
 used to make the study were not shown;  and the studies themselves were
 not introduced into evidence.  The results of the studies may be
 unreliable, in that the work of supervisors was counted and, for a short
 while at least, there were fewer supervisors in 1980 than in 1981.  See
 TR124-125.  Mr. Klein was knowledgeable about the work of the CO's and
 appeared honest and sincere, in giving his testimony.  It also makes
 sense that the use of an individually-assigned car would allow a CO to
 schedule his field work in a more efficient manner than having to depend
 upon his turn coming up for use of a pool car, and that the productivity
 of the CO would be higher, as a result.  Accordingly, I find that the
 pooling of cars in ESA's Region 8 has made the work of the typical CO
 more difficult, and has made him somewhat less productive.
 
    27.  CO's in the Colorado Springs Field Station have worse mobility
 problems than in the Denver Area Office.  There, three CO's share two
 cars.  CO's at the Colorado Springs station cover areas as far away as
 300 miles, over some rough terrain, which is hard to travel over in the
 wintertime.  It is office policy that if a CO goes on a trip out of
 town, he must try to schedule a full week away from the office.  So,
 when two of the three CO's at Colorado Springs are away for a week, the
 third one has no vehicle to use during that week.  One CO in Colorado
 Springs who has received a poor performance rating since the April 1,
 1981, recission of individually-assigned cars, attributes his
 performance problems to this change.
 
                        Discussion and Conclusions
 
    A. Since, under their applicable collective bargaining agreement (the
 1978 contract) the parties reserved to management complete discretion as
 to the assignment of vehicles to employees who needed them to perform
 their duties, the decision here at issue, to terminate the assignments,
 did not constitute a bargainable change in working conditions.  /5/
 Compare Naval Amphibious Base, Little Creek, Norfolk, Virginia, 9 FLRA
 No. 97, 9 FLRA 774 (8/4/82).  The decision to terminate individual
 assignments of cars, and switch to pooling, was simply implementation of
 the 1978 contract between the parties.  The fact that management allowed
 to continue, for several years after signing the 1978 contract, the past
 practice of assigning vehicles to employees on an individual basis, was
 also an exercise by management of its bargained-for-and-won right, under
 the contract, to exercise complete discretion over the matter.
 
    B.  Furthermore, in Article 2, Section 5(A) of the 1978 contract (see
 finding 5a, supra,) management bargained for and won the right to notify
 the union only of those proposed changes affecting working conditions,
 or which impact on them, which were "proposed during the term of this
 Agreement and not covered by this Agreement." Individual assignment of
 cars, pooling of cars, and other means of providing cars for employees
 was discussed, at great length, during the contract negotiations.  See
 findings 4b and d, supra.  All the union members on the bargaining team
 were from the Wage and Hour Division of ESA and were "very familiar"
 with the usage of GSA and POV cars because it was "so important to their
 activities" (TR89 and finding 4b, supra).  How cars were to be assigned
 was finally left to management's discretion, as already discussed.
 Thus, Article 2, Section 5(A) constitutes a clear and unmistakable
 waiver by the union of its bargaining rights over the matter of car
 assignments, including the institution of pooling in lieu of the
 individual assignments of GSA cars.  /6/ Unpersuasive is the argument
 made by the General Counsel, at page 27 of the brief, that because
 termination of individually-assigned cars was not specifically discussed
 at the negotiations, the right to bargain over this aspect of
 management's discretion was not waived.  Termination of vehicles is
 subsumed into the topics discussed and the complete discretion won by
 management, after hard bargaining over how cars should be assigned.
 
    As the General Counsel concedes, at page 26 of its brief, bargaining
 history can be and has been relied upon in determining whether a union
 has made a clear and unmistakable waiver of a bargaining right.  See,
 e.g. Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA
 No. 2, 5 FLRA at page 8 of the Judge Oliver's decision, which was
 adopted by the Authority.  The bargaining history here supports
 Respondent's arguments that a clear and unmistakable waiver has
 occurred, in this case, and that it need not transmit to the union
 proposed changes relating to the assignment of vehicles.  See findings
 5c and d, supra.
 
    C. Finally, the clear impact of Article 2, Section 6 of the 1978
 contract (see finding 6a, supra) is that the parties agreed that past
 practices, not reduced to writing, and specifically covered by the
 Agreement, could be changed without mutual agreement of the parties.
 See finding 6b, supra.  There was no evidence that the past practice of
 assigning cars to employees, on an individual basis, was reduced to
 writing.  And Article 17 of the 1978 contract does specifically cover
 the matter of car assignments.  See finding 4a, supra.  Thus, the
 Authority's decisions on past practices, cited at pages 21-23 of the
 General Counsel's brief, do not control the outcome of this particular
 case.
 
    The General Counsel notes, in footnote 22 of page 20 of the brief,
 that, in a similar factual situation, which concerned DOL's Chicago OSHA
 office change in the assignment of GSA cars, Administrative Law Judge
 Samuel A. Chaitovitz found a violation where Respondent failed or
 refused to bargain over adverse impact and implementation.  See U.S.
 Department of Labor, Occupational Health and Safety Administration,
 Chicago, Illinois, and National Council of Field Labor Locals, American
 Federation of Government Employees, Case No. 5-CA-978, OALJ-82-126
 (August 31, 1982).  His decision involves the same articles of the same
 contract as are here involved.  Whether the bargaining history of those
 articles was established in the case before him is not clear from his
 decision.  In any event, to the extent that the records made in these
 two cases may be similar, I respectfully disagree with my esteemed
 colleague.  /7/
 
    Thus, it must be concluded that the General Counsel has not here
 established, by a preponderance of the evidence, that Respondent
 violated the Statute, as alleged.  This conclusion makes consideration
 of other issues raised by the parties unnecessary.
 
                        Ultimate Findings and Order
 
    Respondents have not been shown, by a preponderance of the evidence,
 to have violated the Statute, as alleged.
 
    Accordingly, the complaint in this case should be, and hereby is
 dismissed.
 
                                       ISABELLE R. CAPPELLO
                                       Administrative Law Judge
 
 Dated:  March 7, 1983
         Washington, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ These sections provide as follows:
 
    Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;  . . .
       (or)
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter;  . . . .
 
 
    /2/ The following abbreviations will be used herein.  "TR" refers to
 the transcript.  "GC" refers to the exhibits of the General Counsel, and
 "R" refers to those of Respondents.  "GCBr" refers to the brief of the
 General Counsel and "RBr" to that of Respondents.  Multipage exhibits
 and the briefs will be designated by page or paragraph number following
 the exhibit or brief designation.
 
 
    /3/ "GSA