20:0587(72)CA - DOI, Bureau of Reclamation and NFFE Independent Local 1991 -- 1985 FLRAdec CA



[ v20 p587 ]
20:0587(72)CA
The decision of the Authority follows:


 20 FLRA No. 72
 
 U.S. DEPARTMENT OF INTERIOR 
 BUREAU OF RECLAMATION 
 Respondent
 
 and
 
 NATIONAL FEDERATION OF FEDERAL 
 EMPLOYEES, INDEPENDENT, LOCAL 1991 
 Charging Party 
 
                                               Case No. 3-CA-30237
 
                            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 as alleged in the complaint and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  Thereafter, the Respondent filed exceptions
 to the Judge's Decision.  /1/
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommended Order as modified below.
 
    In agreement with the Judge, the Authority finds that the
 Respondent's conduct in changing its established policy of automatically
 advancing annual leave to employees at the beginning of a leave year
 without first notifying the Charging Party and affording it an
 opportunity to request bargaining with respect to the change constituted
 a violation of section 7116(a)(1) and (5) of the Statute.  However, to
 the extent that one portion of the pre-existing policy appears to have
 been inconsistent with a Government-wide rule or regulation under
 section 7117 of the Statute, /2/ the Respondent's conduct in changing
 that portion of the policy to conform with the Government-wide rule or
 regulation did not violate the Statute.  In this latter connection, and
 as cited by the Judge, Federal Personnel Manual (FPM) Chapter 630,
 Subchapter 3-4.c. provides in pertinent part that "(i)t is within the
 discretion of each agency to grant annual leave to an employee in
 advance of its actual earning to the extent that leave will accrue to
 him during the current leave year." As further explained in FPM Letter
 630-29 dated January 28, 1981, "an employee may not be advanced . . .
 annual leave . . . when it is know (or reasonably expected) that the
 employee will not return to duty(.)" The Respondent's policy prior to
 the change did not condition the advancement of leave to an employee on
 whether or not the employee would accrue such leave.  The changed policy
 provides that requests for advance annual leave should not be approved
 when there is a reason to suspect that the employee will not earn (and
 thereby accrue) the advanced leave requested.
 
    The Federal leave system is governed by Chapter 63 of title 5 of the
 United States Code.  Among its provisions, 5 U.S.C. 6311 empowers the
 Office of Personnel Management to issue regulations necessary for the
 administration of the leave system.  /3/ Those regulations appear in FPM
 Chapter 630 and are applicable generally to employees of the United
 States Government including those of the Respondent herein.  /4/ In the
 Authority's view, FPM Chapter 630, Subchapter 3-4.c., for purposes here,
 constitutes a Government-wide rule or regulation within the meaning of
 section 7117(a) of the Statute.  Thus, issuance of the regulation is
 statutorily authorized under 5 U.S.C. 6311 and is binding on the
 officials and agencies to which it applies and, further, the regulation
 is applicable generally to Federal employees.  /5/ Under these
 circumstances, where the Respondent's change in its leave policy
 resulted in conformity with a Government-wide rule or regulation, the
 Authority finds that the Respondent's conduct in effecting such a change
 did not violate the Statute.  /6/ However, and as found by the Judge, to
 the extent that the Respondent effected other changes to its leave
 policy which were within the duty to bargain, its failure to have
 notified the Charging Party and given it an opportunity to request
 bargaining over such changes constitutes a violation of section
 7116(a)(1) and (5) of the Statute.
 
                                   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 Interior, Bureau of Reclamation, shall:
 
    1.  Cease and desist from:
 
          (a) Unilaterally instituting a change in the past practice of
       crediting unit employees at the beginning of each leave year with
       the total amount of annual leave to be earned during the ensuing
       year without first notifying and, upon request, bargaining with
       the employees' exclusive representative, the National Federation
       of Federal Employees, Independent, Local 1991, concerning such
       changes to the extent consonant with law and regulation.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of their
       rights assured by the Federal Service Labor-Management Relations
       Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
          (a) To the extent consistent with law and regulation, rescind
       the change in the past practice or crediting unit employees at the
       beginning of each leave year with the total amount of annual leave
       to be earned during the ensuing year.
 
          (b) Notify the National Federation of Federal Employees,
       Independent, Local 1991, the unit employees' exclusive
       representative, of any intention to change the practice of
       crediting unit employees at the beginning of each leave year with
       the total amount of annual leave to be earned during the ensuing
       year, and, upon request, negotiate in good faith, to the extent
       consonant with law and regulation, as to such changes.
 
          (c) Post at its Washington, D.C. Office 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 head of the Bureau of Reclamation, 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 insure 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 of Region III, Federal
       Labor Relations Authority, in writing, within 30 days from the
       date of this Order, as to what steps have been taken to comply
       herewith.
 
    Issued, Washington, D.C., November 6, 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 unilaterally institute a change in the past practice of
 crediting unit employees at the beginning of each leave year with the
 total amount of annual leave to be earned during the ensuing year
 without first notifying and, upon request, bargaining with the
 employees' exclusive representative, the National Federation of Federal
 Employees, Independent, Local 1991, concerning such changes to the
 extent consonant with law and regulation.
 
    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, to the extent consistent with law and regulation, rescind
 the change in the past practice of crediting unit employees at the
 beginning of each leave year with the total amount of annual leave to be
 earned during the ensuing year.
 
    WE WILL notify the National Federation of Federal Employees,
 Independent, Local 1991, the unit employees' exclusive representative,
 of any intention to change the practice of crediting unit employees at
 the beginning of each leave year with the total amount of annual leave
 to be earned during the ensuing year, and, upon request, negotiate in
 good faith, to the extent consonant with law and regulation, as to such
 changes.
                                       (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 III, Federal Labor Relations Authority, whose address
 is:  1111 18th Street, NW., Room 700, P.O. Box 33758, Washington, D.C.
 20033-0758, and whose telephone number is:  (202) 653-8500.
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No. 3-CA-30237
 
    Beatrice G. Chester, Esquire
    For the Respondent
 
    Erica Cooper, Esquire
    Peter Sutton, Esquire
    For the General Counsel
 
    Before:  BURTON S. STERNBURG
    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.Section 7101, et seq. and the Rules and Regulations issued
 thereunder.
 
    Pursuant to a charge filed on January 18, 1983, by Local 1991,
 National Federation of Federal Employees (Independent), (hereinafter
 called the Union or NFFE), a Complaint and Notice of Hearing was issued
 on October 20, 1983, by the Regional Director for Region III, Federal
 Labor Relations Authority, Washington, D.C.  The Complaint alleges that
 the U.S. Department of Interior, Bureau of Reclamation, (hereinafter
 called the Respondent or Bureau), violated Sections 7116(a)(1) and (5)
 of the Federal Service Labor-Management Relations Statute, (hereinafter
 called the Statute), by virtue of its actions in implementing a new
 annual leave policy without affording the Union prior notice of the
 change and the opportunity to bargain with respect to the change in
 working conditions.
 
    A hearing was held in the captioned matter on January 17, 1984, in
 Washington, D.C.  All parties were afforded the full opportunity to be
 heard, to examine and cross-examine witnesses, and to introduce evidence
 bearing on the issues involved herein.  The General Counsel and the
 Respondent submitted post-hearing briefs on February 16 and 17, 1984,
 respectively, which have been duly considered.  /7/
 
    Upon the basis of the entire record, including my observation of the
 witnesses and their demeanor, I make the following findings of fact,
 conclusions and recommendations.
 
                             Findings of Fact
 
    The Union is the exclusive representative of a unit of employees
 working in the Washington office of the Bureau of Reclamation.  Ms.
 Trudy Ward has been the President of the Union since December 1981.  In
 her capacity as Union President, Ms. Ward acts as the Union's Liaison
 with Respondent's personnel office.
 
    Since at least 1976 the Respondent followed the practice of crediting
 to all employees on their first January "Leave and Earnings Statement"
 the total amount of annual leave which they would earn for the current
 calendar year.  While the record is not clear with respect to whether or
 not employees generally submitted a Form SF-71 when requesting leave, it
 is clear, however, that the taking of the advanced leave was subject to
 the approval of the employees respective supervisors.  The
 aforementioned practice was in accord with the Bureau's then existing
 Instruction on Annual Leave dated May 31, 1962.
 
    On July 2, 1982, for reasons to be discussed infra, Respondent,
 without any notice whatsoever to the Union, /8/ amended its "Reclamation
 Instructions" (FPM Chapter 630 - Absence and Leave - FPMR-630-3;
 5/31/62) to provide, among other things, that effective with the 1983
 leave year "Annual leave shall not be advanced, except in unusual
 circumstances or where undue hardship will result.  "Employees . . .
 experiencing personal emergencies or undue hardships may request and be
 granted advanced annual leave;  however, the amount advanced cannot
 exceed that which the employee would accrue during the current leave
 year."
 
    The Instruction further provided in pertinent part as follows:
 
          Requests for advance annual leave must (1) be in writing;  (2)
       state the amount of leave to be advanced;  (3) include
       justification or reasons therefor;  (4) be signed and dated by the
       employee;  and (5) receive prior approval at least one level above
       the immediate supervisor, if feasible.  Requests for advance
       annual leave should not be approved when there is reason to
       suspect that the employee will not earn the advanced leave
       requested, nor should it be granted in situations where sick leave
       is appropriate.  /9/
 
    On December 17, 1982, Mr. William Spillers, Respondent's Chief,
 Division of Personnel Management distributed a memorandum to "All
 Washington Office Employees" concerning "Advancing, Annual Leave." The
 memorandum which was received by Ms. Ward, Union President, solely in
 her capacity as an employee reads in pertinent part as follows:
 
          This is to advise all Bureau employees that, effective with the
       1983 leave year, annual leave will no longer be automatically
       advanced at the beginning of the leave year.  Employees will be
       able to use only annual leave they have actually earned except in
       special need situations.  Employees should be aware of this policy
       change in planning leave for the coming year.
 
          Annual leave may be advanced only in unusual circumstances or
       where undue hardship would result.  Annual leave may not be
       advanced for any reason during the first year of Federal Service.
 
    According to Ms. Ward, who, as noted above, received the notice of
 the change solely in her capacity as a unit employee, she did not
 request bargaining on the matter "Mainly because I was not notified as
 union president, and when I saw the notice, to me, it looked like it was
 already done.  It was already in the works.  It was final."
 
    Further, according to the credited testimony of Ms. Ward, in the
 past, i.e. prior to the December 17, 1982 memorandum, employees were not
 required to submit a written justification for advanced annual leave or
 establish either a hardship or emergency situation before being eligible
 to receive advanced annual leave.  In the past all that an employee had
 to do was verbally ask her supervisor if she could take some leave and
 if the employee could be spared it was granted without any distinction
 being made between accrued and advanced annual leave.
 
    The record indicates that there were approximately 140 employees in
 the bargaining unit and that the average annual leave carried over by
 such employees from 1982 to 1983 was 126 hours.  The record further
 indicates that at least ten employees followed the new procedures
 established pursuant to the July 2, 1982 Bureau Instruction.
 
    Mr. George Mussare, a position classification specialist assigned to
 the Chief Relations and Position Management Branch of the Bureau of
 Reclamation testified that his Branch was responsible for developing
 "all policy" for the Bureau of Reclamation.  According to Mr. Mussare,
 Respondent amended Reclamation Instruction FPMR-630-3 on July 2, 1982,
 in order to make it conform with Department of Interior Regulation 370
 DM 630,3.1 dated 7/29/76 which provided in Subchapter 3.2 "Granting and
 Advancing Annual Leave" as follows:
 
          C. An employee may be permitted to take the annual leave to his
       credit plus the leave that will accrue during the current leave
       year at any time during that year.  Annual leave may be advanced
       only when there are no reasons known to the approving officer why
       the employee will not be able to earn the leave advanced.  /10/
 
    Further, according to Mr. Mussare inasmuch as the Reclamation
 Instruction FPMR 630-3 dated 5/31/62, made no mention of the fact that
 advanced annual leave was not to be approved when there was a
 possibility that the requesting employee might not return to work,
 Respondent decided to, and did, amend the Reclamation Instruction on
 July 2, 1982, to limit the use of advanced annual leave.  Mr. Mussare
 also testified that Respondent was concerned with the Debt Collection
 Act of 1982 which, among other things "imposed upon the agency the
 requirement to offer an employee a hearing prior to the collection of
 any monies owed the government." Finally, according to Mr. Mussare, it
 was the opinion of the Respondent that in curtailing the use of advanced
 annual leave, Respondent would reduce the administrative costs of debt
 collections caused by the advancement of leave to employees leaving the
 federal service prior to the time that they had put in enough time to
 earn the advanced leave.
 
    The record establishes that throughout all of 1982 and the first half
 of 1983, the Union and the Respondent had been engaged in negotiations
 for a collective bargaining agreement.  As the parties would reach
 agreement on any article or provision to be included in the final
 collective bargaining agreement, they would initial same and proceed on
 to another article or provision.  The parties eventually reached
 agreement on a collective bargaining contract which became effective on
 June 23, 1983.  The Preamble of the collective bargaining contract
 provides as follows:
 
          Pursuant to the Federal Service Labor-Management Relations
       Statute . . . and subject to all applicable Federal laws,
       executive orders, rules and regulations of appropriate
       authorities, including those set forth in the Federal Personnel
       Manual and by published Department of the Interior and Bureau of
       Reclamation policies and regulations in existence at the time this
       Agreement is approved, except where the Articles of this Agreement
       conflict with such regulations of the Bureau and Department and
       where a waiver has been granted, the following Articles constitute
       an Agreement by and between the Bureau of Reclamation and the
       National Federation of Federal Employees, Local 1991.
 
    Section 6 of Article XVIII provides as follows:
 
          All leave shall be earned, requested and authorized, and used
       in accordance with applicable statutes and regulations.
 
    With respect to the above quoted provisions of the collective
 bargaining contract the record establishes that the parties signed off
 on the Preamble on July 14, 1982, and signed off on Section 6 of Article
 XVIII on April 1, 1982, approximately 5 and 9 months, respectively,
 before the change in the use of advanced leave was announced.  In this
 letter connection, Mr. Michael Nash, Service Labor Relations Officer for
 the Bureau, the individual assigned the task of negotiating the
 collective bargaining contract on behalf of the Respondent, testified
 without contradiction, that the ground rules for the negotiations
 provided that either party could change its position on any of the
 signed off articles at any time prior to the execution of a final
 collective bargaining agreement.  Further, according to Mr. Nash, the
 Union made no attempt to change the above cited articles and at no time
 requested bargaining on the change announced on December 17, 1982, with
 respect to curtailing the prior practice of crediting employees with
 their yearly leave on the first day of the calendar year.
 
                        Discussion and Conclusions
 
    The General Counsel takes the position that Respondent violated
 Sections 7116(a)(1) and (5) of the Statute by virtue of its actions in
 terminating an existing negotiable practice which had ripened into a
 condition of employment without first giving the Union appropriate
 timely notice and the opportunity to request bargaining over the
 substance of the change in the existing practice.  Additionally, the
 General Counsel takes the position that the record does not support the
 Respondent's defenses predicated upon "compelling need" and "waiver" by
 the Union of its right to negotiate the change in leave policy.
 
    Respondent, on the other hand, takes the position that it did not
 violate Sections 7116(a)(1) and (5) of the Statute since (1) the change
 in leave policy was based on compelling need;  (2) there was no
 substantial impact on bargaining unit employees;  (3) the Union in any
 event received appropriate notice of the change and failed to request
 bargaining;  and (4) the Union by subsequently executing the collective
 bargaining agreement wherein it agreed to abide by all existing
 regulations waived its right to bargain over the change in leave policy.
 
    The record establishes and I find, based particularly upon the
 credited testimony of Ms. Ward, that the Respondent had since at least
 1976 followed the practice of crediting each employee at the beginning
 of every leave year with the total amount of leave they were expected to
 earn during the ensuing year.  The record further establishes, and I so
 find, that subject to obtaining permission from their respective first
 line supervisors, the unit employees were allowed to use the credited
 leave at any time during the year.  Accordingly, based upon the
 foregoing, I further find that the practice of crediting and advancing
 leave prior to the actual date that such leave was earned ripened into a
 condition of employment which could not be unilaterally altered by the
 Respondent without first giving the Union appropriate notice thereof an
 an opportunity to bargain thereon.  Internal Revenue Service and
 Brookhaven Service Center, 6 FLRA No. 127;  Department of the Navy,
 Naval Underwater Systems Center, Newport Naval Base, 3 FLRA No. 64.
 
    Respondent does not appear to contest the above finding but defends
 its action in failing to bargain with the Union on the basis of (1)
 absence of a demand for bargaining by the Union, (2) compelling need,
 (3) waiver, and (4) lack of substantial impact.
 
    Taking the defense of the Respondent in the above order, I find that
 the Union was not given appropriate timely notice of the change and an
 opportunity to bargain thereon before the change was announced as a fait
 accompli.  In this connection the record establishes that Union
 President Ward, the party entitled to receive appropriate notice of any
 change in a condition of employment, was not served notice of the change
 in leave policy in her capacity as Union President, but rather learned
 of the change through the medium of a general distribution of a
 memorandum directed to "All Washington Office Employees." The memorandum
 did not state that the change in past practice was being considered, but
 rather made it clear that a decision on the subject of advancing leave
 had already been made and that effective the first pay period in January
 1983 the practice of advancing leave was discontinued.
 
    In reaching the above conclusions I rely on the Authority's decision
 in Social Security Administration, Field Assessment Office, Atlanta,
 Georgia, 11 FLRA No. 78, and Defense Logistics Agency, et al., 12 FLRA
 86, wherein the Authority reaffirmed its position taken in United States
 Air Force, Air Force Logistics Command, Aerospace Guidance and Metrology
 Center, Newark, Ohio, 4 FLRA No. 70, enforcement denied 681 F.2d 466,
 concerning what constitutes appropriate timely notice to a Union.  In
 U.S. Air Force, Air Force Logistics Command, supra, the Authority made
 it clear that in order for a "notice" to be valid it must be given to
 the appropriate union official in his capacity "as a union
 representative." Failure to give such notice impedes the ability of the
 union representative to act as an equal partner and thus constitutes a
 violation of Sections 7116(a)(1) and (5) of the Statute.
 
    Although the Authority found the notice to be deficient in U.S.
 Force, Air Force Logistics Command, supra, it did not order the agency
 to bargain with the union since there was no showing "that a demand to
 bargain based on actual knowledge of the change would have been futile,
 nor was it shown that the failure of appropriate advance notice would
 have made effective negotiations impossible." Inasmuch as the facts of
 the present case are clearly distinguishable from those presented to the
 Authority in U.S. Air Force, Air Logistics Command, supra, I find that a
 bargaining order is appropriate under the guidelines inferentially set
 forth by the Authority in U.S. Air Force, Air Force Logistics Command,
 supra.  Not only is there testimony by Ms. Ward that her failure to
 request bargaining was based on her belief that such a request would be
 a futile gesture, but there is also record evidence supporting such
 futility.  Thus, it is noted that the memorandum announcing the change
 was predicated upon the Bureau Instruction which had been revised months
 earlier, again, without notice to the Union.  In such circumstances, I
 find that the record supports the conclusion that the change was a fait
 accompli and that any request to bargain thereon would not have resulted
 in any meaningful negotiations.
 
    Turning now to the Respondent's second defense, i.e. compelling need,
 I find that the record falls short of establishing that a compelling
 need existed for either the revised Bureau regulation or the subsequent
 December 17, 1982, memorandum, both of which unilaterally terminated the
 practice of advancing annual leave.  In reaching this conclusion, I rely
 upon a literal reading of both the Department of Interior and FPM
 Instructions.  Neither of such Instructions carry an outright
 prohibition against the practice of advancing or crediting an employee
 with the annual leave to be earned during the ensuing year.  In fact
 both Instructions make it clear that such practice is discretionary,
 subject only to the caveat that advanced annual leave shall not be given
 to an employee where the approving officer has reason to believe that
 the employee "will not be able to earn the leave advanced." The Bureau's
 Regulations and subsequent Memorandum to All Employees goes further than
 either the Departmental Regulation or the FPM Regulation and puts a
 blanket restriction on all advanced leave.  In view of the foregoing,
 and particularly since both the Departmental and FPM Instructions carry
 no outright prohibition against the practice of advancing annual leave,
 but rather make it discretionary with the approving officer, I find
 Respondent's defense predicated upon "compelling need" to be without
 merit.  Cf. American Federation of Government Employees, Local 3488 and
 Federal Deposit Insurance Corporation, 12 FLRA 532, 533;  National
 Treasury Employees Union, Chapter 6 and Internal Revenue Service, New
 Orleans District, 3 FLRA 748.
 
    In support of its third defense, i.e. waiver by the Union of its
 right to negotiate over the change in leave policy, Respondent relies on
 Section 6 and the Preamble of the collective bargaining agreement
 executed subsequent to its action in unilaterally changing the practice
 of crediting to each employee in January of each year the amount of
 leave the employee is expected to earn or accrue during the ensuing
 year.  According to the Respondent inasmuch as the Union has agreed in
 such sections of the collective bargaining agreement to be bound by the
 existing regulations of the Bureau it is estopped "from complaining
 about the issuance of the December 15, 1982, memorandum."
 
    Contrary to the contention of the Respondent, I cannot conclude on
 the basis of the instant record that the Union either waived its right
 to bargain over the change in leave policy or is "estopped from
 complaining" about the change by virtue of its action in signing the
 collective bargaining agreement.  Aside from the fact that the Union
 signed off on the preamble and section 6 of the collective bargaining
 agreement months before the announcement of the change in the practice
 of advancing and or crediting annual leave, the cited contractual
 provisions fall short of establishing a clear and unmistakenable waiver
 of the Union's right to bargain over the substance of the change in past
 practice.  The preamble merely makes it clearly that the provisions of
 the contract are subordinate to any existing regulations absent a clear
 waiver of same by either the Department or the Bureau, and section 6
 merely states that leave will be earned, requested, authorized, etc., in
 accordance with applicable statutes and regulations.  Neither of such
 provisions clearly and unmistakeably indicate a conscious waiver by the
 Union of its right to bargain over the change and pursue the enforcement
 of such right through the unfair labor practice charge under
 consideration herein.  Additionally, in the absence of any probative
 evidence to the contrary, it would appear that since there was a pending
 unfair labor practice which indirectly challenged the validity of the
 surreptitiously amended regulation dealing with the crediting of leave
 to be accrued, any agreement to be bound by the existing regulation
 concerning the crediting of leave would implicitly be contingent on an
 adverse ruling on the pending unfair labor practice.  Accordingly, I
 find that the Union neither waived its right to bargain over the change
 nor is it now "estopped from complaining" about the change by virtue of
 its action in executing the collective bargaining agreement.
 
    With respect to Respondent's final defense predicated upon the
 alleged absence of any showing that the change in past practice had a
 "substantial impact" on the working conditions of unit employees, I find
 such defense to be inapplicable herein since the issue under
 consideration concerns the failure of Respondent to bargain with the
 Union over the substance of the change in past practice.  Additionally,
 as pointed out by the Authority in Internal Revenue Service (District,
 Region, National Office Unit), 13 FLRA No. 61, the test is that of
 "impact" not "substantial impact." In any event, the record indicates
 that a number of employees began the January 1983 leave year with no
 annual leave to their credit.  In such circumstances, absent a showing
 of unusual circumstances or undue hardship, such employees, contrary to
 a past practice, would not be able to schedule a vacation until such
 time as they had accumulated the annual leave necessary for such
 vacation.  Accordingly, I find that the change in the leave policy
 impacted on unit employees.
 
    Having concluded that Respondent violated Sections 7116(a)(1) and (5)
 of the Statute by virtue of its actions in unilaterally changing the
 past practice of crediting employees at the beginning of each leave year
 with the total amount of leave to be earned during the ensuing year, it
 is recommended 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 Federal
 Service Labor-Management Statute, the Authority hereby orders that the
 U.S. Department of Interior, Bureau of Reclamation, shall:
 
    1.  Cease and desist from:
 
          (a) Unilaterally instituting a change in the past practice of
       crediting employees at the beginning of each leave year with the
       total amount of annual leave to be earned during the ensuing year
       without first providing timely appropriate notice to, and upon
       request bargaining with, the National Federation of Federal
       Employees, Independent, Local 1991, the exclusive representative
       of a unit of employees working in the Bureau of Reclamation's
       Washington, D.C. Office.
 
          (b) In any like or related manner, interfering with,
       restraining, or coercing its employees in the exercise of their
       rights assured by the Federal Service Labor-Management Relations
       Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
          (a) Rescind the change in the past practice of crediting
       employees at the beginning of each leave year with the total
       amount of annual leave to be earned during the ensuing year.
 
          (b) Notify the National Federation of Federal Employees,
       Independent, Local 1991, the exclusive representative of a unit of
       employees working in the Bureau of Reclamation's Washington, D.C.
       Office, of any intention to change its past practice of crediting
       employees at the beginning of each leave year with the total
       amount of annual leave to be earned during the ensuing year, and
       upon request, negotiate in good faith, to the extent consonant
       with law and regulation, as to such change.
 
          (c) Post at is Washington, D.C. Office copies of the attached
       Notice marked Appendix, on forms to be furnished by the Federal
       Labor Relations Authority.  Upon receipt of such forms, they shall
       be signed by an appropriate official, 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 insure that said Notices are not altered,
       defaced, or covered by any other material.
 
          Pursuant to Section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director of Region III, Federal
       Labor Relations Authority, in writing, within 30 days from the
       date of this Order, as to what steps have been taken to comply
       herewith.
                                       BURTON S. STERNBURG
                                       Administrative Law Judge
 
    Dated:  April 25, 1984
    Washington, D.C.
 
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER TO THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE POLICIES OF CHAPTER 71 OF
 THE TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT unilaterally institute a change in the past practice of
 crediting employees at the beginning of each leave with the total amount
 of annual leave to be earned during the ensuing year without first
 providing timely appropriate notice to, and upon request bargaining
 with, the National Federation of Federal Employees, Independent, Local
 1991, the exclusive representative of a unit of employees working in the
 Washington Office of the Bureau of Reclamation.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL rescind the change in the past practice of crediting
 employees at the beginning of each leave year with the total amount of
 annual leave to be earned during the ensuing year.
 
    WE WILL give appropriate and timely notification to the National
 Federation of Federal Employees, Independent, Local 1991, the exclusive
 representative of a unit of employees working in the Bureau of
 Reclamation's Washington, D.C. Office, of any intention to change the
 past practice of crediting employees at the beginning of each leave year
 with the total amount of annual leave to be earned during the ensuing
 year, and upon request, negotiate in good faith, to the extent consonant
 with law and regulation, as to such change.
                                       (Agency or Activity)
 
    DATED:
                                       BY:  (Signature)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting and must not be altered, defaced or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director, Federal Labor Relations Authority, Region III, whose
 address is:  1111 18th Street, NW., Suite 700, P.O. Box 33758,
 Washington, D.C. 20033-0758, and whose telephone number is:  (202)
 653-8456.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Authority hereby grants the General Counsel's "Motion to
 Withdraw Opposition to Exceptions" and therefore finds it unnecessary to
 consider the Respondent's opposition to the General Counsel's previously
 filed opposition to the Respondent's exceptions.
 
 
    /2/ Section 7117(a)(1) of the Statute provides as follows:
 
          Sec. 7117.  Duty to bargain in good faith;  compelling need;
       duty to consult
 
          (a)(1) Subject to paragraph (2) of this subsection, the duty to
       bargain in good faith shall, to the extent not inconsistent with
       any Federal law or any Government-wide rule or regulation, extend
       to matters which are the subject of any rule or regulation only if
       the rule or regulation is not a Government-wide rule or
       regulation.
 
 
    /2/ 5 U.S.C. 6311(1982) provides:
 
          The Office of Personnel Management may prescribe regulations
       necessary for the administration of this subchapter.
 
 
    /4/ See FPM Chapter 630, Subchapter 2-1.
 
 
    /5/ See, e.g., American Federation of Government Employees, AFL-CIO,
 Local 2263 and Department of the Air Force, Headquarters, 1606TH Air
 Base Wing (MAC), Kirtland Air Force Base, New Mexico, 15 FLRA No. 126
 (1984) (Union Proposal 4);  National Federation of Federal Employees,
 Local 1497 and Department of the Air Force, Lowry Air Force Base,
 Colorado, 9 FLRA 151(1982) (Union Proposal 1);  and National Treasury
 Employees Union, Chapter 6 and Internal Revenue Service, New Orleans
 District, 3 FLRA 748(1980).
 
 
    /6/ See Department of the Interior, U.S. Geological Survey,
 Conservation Division, Gulf of Mexico Region, Metairie, Louisiana, 9
 FLRA 543(1982), wherein the Authority determined that there was no
 obligation to bargain over the decision to change a past practice so as
 to conform with the requirements of law and regulation.
 
 
    /7/ On March 9, 1984, the General Counsel filed a "Motion to Strike
 Portions of Respondent's Brief." Respondent filed a Motion in Opposition
 on March 12, 1984.  Having reviewed the General Counsel's Motion and
 Respondent's Motion in Opposition, I find the General Counsel's Motion
 to be without merit and accordingly deny same.
 
 
    /8/ The Union learned of the July 2, 1982, change in the Instruction
 in June of 1983 in connection with a negotiability appeal.  The amended
 instruction was attached to a position paper addressed to the FLRA.
 
 
    /9/ The earlier Instruction dated 5/31/62, provided as follows:
 
          4.  Advanced Annual Leave should not be advanced to an employee
       during his first year of Federal Service.  Thereafter employees
       shall have available to them for use at any time the accumulated
       annual leave to their credit, plus all annual leave that will
       accrue to them during the current year.  In instances where
       unusual circumstances exist or undue hardship will result, this
       policy may be waived for employees who have not completed the
       required year of service.  If this policy results in overdrawn
       annual leave at the end of the leave year, the excess amount shall
       be carried forward for charge against leave earned in the
       following year.  However, a refund may be required in any case in
       which it is considered to be in the interest of the Government, or
       otherwise good administrative practice.
 
 
    /10/ The Department of Interior Regulation tracks the FPM, relevant
 portions of which are included in the record as General Counsel's
 Exhibit No. 2.  FPM 630-7, Subchapter 3 entitled Annual Leave provides
 in Subchapter 3-4(c) as follows:  "Advancing annual leave.  It is within
 the discretion of each agency to grant annual leave to an employee in
 advance of actual earning to the extent that leave will accrue to him
 during the current leave year." Similarly, FPM Letter 630-29 dated
 1/28/81, and appearing in the record also as General Counsel's Exhibit
 No. 2, provides in pertinent part, as follows:
 
          5.  Advancing Leave.  An employee may be advanced, at the
       beginning of the leave year or at any time thereafter, such annual
       leave as he or she may be expected to accrue during the leave year
       . . . Approval of requests for advance leave is at the discretion
       of the agencies.  However, an e