21:0814(100)CA - Aberdeen Proving Ground, Army and IAM Local Lodge 2424 -- 1986 FLRAdec CA



[ v21 p814 ]
21:0814(100)CA
The decision of the Authority follows:


 21 FLRA No. 100
 
 ABERDEEN PROVING GROUND
 DEPARTMENT OF THE ARMY
 Respondent
 
 and
 
 INTERNATIONAL ASSOCIATION OF 
 MACHINISTS AND AEROSPACE WORKERS 
 LOCAL LODGE 2424, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-20077
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 to the attached Administrative Law Judge's Decision filed by the General
 Counsel.  The Respondent filed an opposition to the General CounselS
 exceptions.  The complaint in this case alleged a violation of section
 7116(a)(1) and (5) of the Federal Service Labor-Management Relations
 Statute (the Statute) when the Respondent refused to negotiate on the
 "charging Party's proposal to grant administrative leave rather than
 "forced annual leave" on the day after Thanksgiving when Respondent's
 operations would be closed.
 
                              II.  Background
 
    Aberdeed Proving Ground, Department of the Army (Respondent), met on
 September 15, 1981, with the International Association of Machinists and
 Aerospace Workers, Local Lodge 2424, AFL-CIO (the Union), and informed
 the Union of its decision to curtail operations of the Aberdeen Proving
 Ground on the day after Thanksgiving, and that employees would be placed
 on "forced annual leave" for that day.  The Union sought to negotiate
 concerning the impact of the Respondent's decision to curtail its
 operations and the procedures leading to its implementation.
 
    During negotiations held in October, the Union presented, among other
 things, two proposals to grant administrative leave to all employees
 during the closure of the Respondent's operations on the day after
 Thanksgiving, rather than, as decided by the Respondent, to place
 employees on forced annual leave.  The Respondent refused to bargain on
 these proposals, stating that Department of Defense (DOD) and Department
 of the Army (DA) regulations precluded a grant of administrative leave
 for an anticipated closure of operations.  The negotiating session ended
 shortly thereafter.  The following day, and again a few days before
 Thanksgiving, the Respondent offered to negotiate with the Union on
 procedures and appropriate arrangements concerning the upcoming closure
 but the Union declined.
 
                          III.  Judge's Decision
 
    The Judge concluded that the Respondent had no duty to bargain over
 the Union's proposal regarding the granting of administrative leave
 because the subject of the Union's proposal was inconsistent with Agency
 regulations which specifically barred administrative leave for an
 anticipated curtailment of operations and the Authority had not
 previously determined that there was no compelling need for the
 conflicting regulation.
 
    The granting of administrative leave to unit employees in connection
 with the temporary curtailment of agency operations is a negotiable
 matter affecting working conditions of unit employees.  See Long Beach
 Naval Shipyard, Long Beach, California and International Federation of
 Professionals and Technical Engineers, Local 174, AFL-CIO, 7 FLRA 362
 (1981).  The Judge noted this decision, but dismissed the complaint
 because the Authority had not yet determined that no compelling need
 existed for the DOD and DA regulations upon which the Respondent
 specifically relied.
 
                       IV.  Positions of the Parties
 
    Exceptions to the Judge's findings and conclusions were filed by the
 General Counsel concerning the issue of compelling need for the DOD and
 DA regulations which were raised as a bar to negotiations on the Union's
 proposal for administrative leave.  The General Counsel contended that
 the question of compelling need for an agency regulation may be raised
 as part of an unfair labor practice proceeding, and that when the
 Respondent in this case asserted a compelling need for its regulations
 it had the burden of establishing this assertion before the Judge.  The
 General Counsel argued that the Respondent did not meet the burden of
 establishing compelling need for the regulations and as a consequence
 violated section 7116(a)(1) and (5) of the Statute.  The General Counsel
 also excepted to certain credibility resolutions made by the Judge.
 
    In its opposition to the General Counsel's exceptions, the Respondent
 contended that it had no duty to establish a compelling need for its
 regulations without the issue having been raised by the Union under the
 Authority's negotiability procedures.  Moreover, although continuing to
 agree with the Judge that compelling need must be determined in a
 separate proceeding, the Respondent asserts that a compelling need
 existed for the regulations in question on the grounds that the
 regulations, which precluded a grant of administrative leave under the
 circumstances, are essential to the accomplishment of the stated
 objective of curtailing operations on the day in question in order to
 conserve energy.  Further, the Respondent asserts in its opposition that
 compelling need was established at the hearing.
 
                               V.  Analysis
 
    Section 7117(b) of the Statute empowers the Authority to resolve
 compelling need issues where, during the course of collective
 bargaining, "an exclusive representative alleges that no compelling need
 exists for any rule or regulation . . . which is then in effect and
 which governs any matter at issue in such collective bargaining . . . .
 " Subsequent to the Judge's Decision, the Authority issued Defense
 Logistics Agency (Cameron Station, Virginia), 12 FLRA 412 (1983),
 affirmed sub nom.  Defense Logistics Agency, et al. v. FLRA, 754 F.2d
 1003 (D.C. Cir. 1985), /1/ where it was concluded that issues relating
 to whether there exists a compelling need for an agency regulation so as
 to bar negotiations on inconsistent proposals appropriately may be
 raised and decided in an unfair labor practice proceeding when the
 agency raises compelling need as an affirmative defense in such an
 unfair labor practice proceeding.  /2/
 
    As indicated in Defense Logistics Agency, when an agency refuses to
 bargain over a union proposal during ongoing collective bargaining
 negotiations because the proposal is alleged to be inconsistent with an
 existing agency-wide regulation for which a compelling need exists,
 section 7117 of the Statute requires that the issue be resolved through
 the procedures in section 7117 of the Statute and Part 2424 of the
 Authority's Rules and Regulations.  A different situation is presented
 in cases of disputes involving an agency's alleged unilateral changes in
 conditions of employment, where issues of negotiability -- including, as
 in the instant case, assertions of compelling need for agency
 regulations -- are raised as affirmative defenses.  To resolve such
 disputes, the Authority had promulgated procedures (5 C.F.R. Sections
 2423.5 and 2424.5) which recognize a union's right either:  (1) to seek
 resolution of the entire dispute, including the negotiability issues, in
 the unfair labor practice forum;  or (2) to seek initial and separate
 resolution of the negotiability issues in the negotiability appeal
 forum.
 
    It is a well-established principle in both private sector and federal
 sector labor law that an employer's unilateral change in what
 subsequently can be shown to be a bargainable working condition violates
 the bargaining obligation and constitutes an unfair labor practice.  See
 NLRB v. Katz, 369 U.S. 736 (1962) (private sector);  FLRA v. United
 States Department of the Air Force, Tinker Air Force Base, 735 F.2d 1513
 (D.C. Cir. 1984) (federal sector).  In such cases, one of the defenses
 available to management is that the substance of the change is
 nonnegotiable.  In the Authority's view, allowing the resolution of
 compelling need issues in an unfair labor practice proceeding where the
 issue was raised as a defense to the unfair labor practice charge, is
 supported by the Statute, its legislative history, and public policy.
 It is not disputed that when such a defense of nonnegotiability concerns
 the kind of negotiability issue that is otherwise processed under the
 section 7117(c) procedure, that defense can be resolved as part of the
 unfair labor practice case.  /3/ Neither the Statute nor its legislative
 history suggests that Congress intended to make an exception in the
 federal sector to this principle when the defense of nonnegotiability
 involves the kind of negotiability issue that is otherwise processed
 under the section 7117(b) procedure.
 
    Section 7117(b)(1) of the Statute states, in part, that "(i)n any
 case of collective bargaining in which an exclusive representative
 alleges that no compelling need exists for any rule . . . which is then
 in effect and which governs any matter at issue in such collective
 bargaining, the Authority shall determine . . . whether such a
 compelling need exists." (Emphasis added.) The underscored language
 reveals that the section 7117(b) procedure is tailored to apply to
 situations where, during ongoing negotiations, an agency asserts that a
 proposal is nonnegotiable because it is inconsistent with an existing
 agency regulation for which there is a compelling need.  This language
 of the Statute does not preclude the Authority from resolving any
 necessary negotiability issues, including those related to the
 compelling need for an agency regulation, in a unilateral change unfair
 labor practice case.
 
    An examination of the legislative history of the Statute supports the
 Authority's conclusion.  Thus, the 1975 amendments to the pre-Statute
 labor-management relations program, Executive Order 11491, authorized
 precisely what the Authority's procedures, codified at 5 C.F.R. Sections
 2423.5 and 2424.5, were promulgated to permit:  unified processing of
 any compelling need negotiability issue in the unfair labor practice
 proceeding in which it arises.  /4/ The enactment of the Statute in 1978
 did not indicate a congressional intent to reject the continuation of
 this well-established practice.  Rather, as the United States Court of
 Appeals for the District of Columbia Circuit found, Congress did not
 intend to change the existing practice of allowing all issues to be
 resolved in one proceeding.  See Defense Logistics Agency v. FLRA, 754
 F.2d 1003, 1008-1011 (D.C. Cir. 1985).
 
    In the Authority's view, there is substantial public policy benefit
 from unified processing of a "compelling need" allegation as part of the
 unfair labor practice case involving unilateral change, where such an
 allegation of nonnegotiability arises as an affirmative defense.  This
 procedure effectuates Congress' goal to facilitate and promote the
 collective bargaining process by providing for the resolution of all
 relevant issues in one proceeding, thereby obviating the delay inherent
 in two separate and consecutive proceedings.  Moreover, whether an
 agency's change is found to be nonnegotiable because there is a
 compelling need for the agency regulation or negotiable because there is
 no compelling need for the regulation which prompted the change, the
 agency is not improperly adversely affected.  Even if the Authority
 determines that the purposes and policies of the Statute are best
 effectuated by an order rescinding a unilateral change over which there
 was a duty to bargain, such a result would only deprive the agency of
 the results of a unilateral change it should not have made without first
 bargaining.
 
    The D.C. Circuit has noted agreement with the Authority's practice of
 allowing negotiability issues -- including, as in the instant case,
 assertions of compelling need for agency regulations -- to be resolved
 in an unfair labor practice proceeding.  It concluded a review of the
 Statute and its legislative history as well as the Authority's policy
 arguments by stating:
 
          . . . We think it is clear that the Authority's distinction
       between ongoing negotiations and unilateral changes reflects not
       only a permissible reading of the Statute, but also a reasonable
       one, in the truest sense -- namely, that the Authority had good
       reasons for reading the Statute in that way . . . We therefore
       hold that in ULP proceedings over alleged unilateral changes in
       employment conditions effected by agency-wide rule, the Authority
       may determine whether there was a compelling need for the rule,
       and thus whether the rule was negotiable without first having made
       such a determination pursuant to Section 7117(b).  Defense
       Logistics Agency, et al., 754 F.2d at 1014.
 
    In sum, the Authority, consonant with the holding of the D.C. Circuit
 quoted above, reaffirms its finding that unified processing of a
 "compelling need" allegation as part of the unilateral change unfair
 labor practice case in which such an allegation of nonnegotiability
 arises as an affirmative defense is appropriate.
 
    The Authority in this case concludes that the Respondent has failed
 to sustain its burden of establishing a compelling need for the DOD and
 DA regulations in accordance with criteria in section 2424.11 of the
 Authority's Rules and Regulations (5 C.F.R. Section 2424.11 (1981)).  As
 noted, the Respondent argues that there is a compelling need for the
 regulations because they are essential to meet its objective in
 curtailing operations, which was to conserve energy.  However, the
 Respondent has failed to establish a nexus between its goal of
 conserving energy and the regulations in question.  /5/ The record is
 barren of evidence which would demonstrate how the granting of
 administrative leave to unit employees, rather than annual leave, as the
 Union's proposal at issue here would require, in any way affects the
 Respondent's stated objective of conserving energy;  operations would be
 curtailed to the same extent, and energy conserved to the same extent,
 whether the employees affected were on annual leave or administrative
 leave on the day in question.  Therefore, the Respondent has failed to
 demonstrate how the regulations in question would be essential or even
 helpful to achieving the Agency's stated objective in curtailing
 operations.
 
                              VI.  Conclusion
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority has reviewed the rulings
 of the Judge made at the hearing and finds that no prejudicial error was
 committed, and thus affirms those rulings.  The Authority has considered
 the Judge's Decision and the entire record in this case, and, contrary
 to the Judge, concludes that the Respondent violated section 7116(a)(1)
 and (5) of the Statute when it refused to bargain concerning the Union's
 proposal to grant employees administrative leave on the day after
 Thanksgiving, submitted in response to the Respondent's notice that
 operations would be curtailed on that date.  Therefore, the Authority
 adopts the Judge's findings and conclusions only to the extent
 consistent with this decision.  /6/
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the Aberdeen Proving Ground, Department of the Army
 shall:
 
    1.  Cease and desist from:
 
    (a) Failing or refusing to negotiate with the International
 Association of Machinists and Aerospace Workers, Local Lodge 2424,
 AFL-CIO, the exclusive representative of a unit of its employees,
 concerning the Union's proposal to grant administrative leave in lieu of
 forced annual leave for its unit employees in connection with the
 closure of the operations of the Aberdeen Proving Ground, Department of
 the Army, on November 27, 1981.
 
    (b) In any like or related manner interfering with, restraining or
 coercing employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Upon request, negotiate with the International Association of
 Machinists and Aerospace Workers, Local Lodge 2424, AFL-CIO, the
 exclusive representative of a unit of its employees, concerning the
 Union's proposal to grant administrative leave in lieu of forced annual
 leave for its unit employees in connection with the closure of the
 operations of the Aberdeen Proving Ground, Department of the Army, on
 November 27, 1981.
 
    (b) Post at its facility, 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 Commander, Aberdeen Proving
 Ground, Department of the Army, or a designee, and shall be 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.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, 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., May 14, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail or refuse to negotiate with the International
 Association of Machinists and Aerospace Workers, Local Lodge 2424,
 AFL-CIO, the exclusive representative of a unit of our employees,
 concerning the Union's proposal to grant administrative leave in lieu of
 forced annual leave for unit employees in connection with the closure of
 the operations of the Aberdeen Proving Ground, Department of the Army,
 on November 27, 1981.
 
    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 International Association
 of Machinists and Aerospace Workers, Local Lodge 2424, AFL-CIO, the
 exclusive representative of a unit of our employees, concerning the
 Union's proposal to grant administrative leave in lieu of forced annual
 leave for unit employees in connection with the closure of the
 operations of the Aberdeen Proving Ground, Department of the Army, on
 November 27, 1981.
                                       (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, N.W., 7th Floor (P.O. Box 33758), Washington,
 D.C. 20033-0758, and whose telephone number is:  (202) 653-8500.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 3-CA-20077
 
    DEPARTMENT OF THE ARMY
    ABERDEEN PROVING GROUND
    Respondent
 
                                    and
 
    INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
 WORKERS, LOCAL
    LODGE 2424, AFL-CIO
    Charging Party
 
    Laura Rothenberg, Esquire
    For the Respondent
 
    Donna M DiTullio, Esquire
    For the General Counsel
 
    Before:  WILLIAM B. DEVANEY
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding, under the Federal Service Labor-Management Relations
 Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
 Section 7101, et seq.  /7/, and the Final Rules and Regulations issued
 thereunder, 5 C.F.R. Section 2423.1, et seq., which concerns the alleged
 refusal to bargain in good faith on the Union's proposal that
 administrative leave be granted for the Friday following Thanksgiving
 Day in response to Respondent's decision to close Aberdeen Proving
 Ground on Friday, November 27, 1981, was initiated by a charge filed on
 October 27, 1981 (G.C. Exh. 1(a)) which alleged violation of Sections
 16(a)(1), (2), (3), (5) and (8) of the Statute.  The Complaint and
 Notice of Hearing issued on February 26, 1982 (G.C. Exh. (c)) and the
 Complaint alleged violation only of Sections 16(a)(1) and (5) of the
 Statute.  Pursuant to the Notice of Hearing, a hearing was duly held on
 April 6, 1982, at Aberdeen Proving Ground, Maryland, before the
 undersigned.
 
    All parties were represented at the hearing, were afforded full
 opportunity to be heard, to examine and cross-examine witnesses to
 introduce evidence bearing on the issues involved, and were afforded
 opportunity to present oral argument, which right both parties waived.
 At the close of the hearing, May 6, 1982, was fixed as the date for
 mailing post-hearing briefs which time was subsequently extended, for
 good cause shown, to May 13, 1982.  Counsel for each party timely mailed
 a helpful brief, received on, or before May 12, 1982, which have been
 carefully considered.  Upon the basis of the entire record, including my
 observation of the witnesses and their demeanor, I make the following
 findings and conclusions:
 
                                 FINDINGS
 
    1.  Respondent, to conserve energy, on September 14, 1981, decided to
 close operations of the Aberdeen Proving Grounds on November 27, 28, and
 29, 1981.  As most employees work only Monday through Friday, as a
 practical matter, this meant that Aberdeen Proving Ground (hereinafter
 also referred to as "APG") would be closed on the Friday after
 Thanksgiving except for operation of utilities, security and essential
 activities.  Mr. David R. Weppner, Labor Relations Specialist for
 Respondent, called all of the unions on September 14 and arranged a
 meeting for the following day, September 15.  Mr. Weppner and his
 superior, Mr. Franklin M. Bradley, Chief of the Management Employee
 Relations Division, met with representatives of the various unions,
 including Messrs. Joseph McDeshen, Jr., President, and Harvey W.
 Mitchell, Vice President of the International Association of Machinists
 and Aerospace Workers, Local Lodge 2424, AFL-CIO, (hereinafter also
 referred to as IAM"), and informed the Unions that the decision had been
 made to curtail operations.  Respondent advised the Unions that APG
 employees would be placed on "forced annual leave" (Tr. 58).  There are
 various tenant activities housed at APG, such as the Chemical Systems
 Laboratory and the Ballistic Research Laboratory, which are not under
 the command or direction of APG, and the different assurances given by
 their commanders were discussed.  Respondent stated that it was aware
 that because of the nature of their missions, experiments and tests in
 progress, that the policy of certain tenant activities might differ (Tr.
 59-60), but that Respondent had concluded that APG's tests could be held
 in abeyance without impairment of its mission (Tr. 60).
 
    2.  Following the meeting of September 15, at which the Unions,
 including IAM, were informed of the decision to close APG on Friday,
 November 27, 1981, Colonel William E. Watts, Commander of APG, by letter
 dated September 23, 1981, advised Mr. McDeshen in writing, in part, as
 follows:
 
          "1.  I have decided, after due consideration, to close Aberdeen
       Proving Ground on Friday, 27 November 1981.  Only essential post
       services will continue to function.
 
                          . . .
 
          "4.  Specific details and clarification concerning the policy
       of leave for civilian and military personnel will be published
       shortly" (G.C. Exh. 2).
 
    3.  On October 2, 1981, Colonel Watts issued guidelines on how leave
 would be used for the Thanksgiving curtailment of activities (G.C. Exh.
 3) which was distributed, inter alia, to the unions, including IAM.
 
    4.  A special meeting of Area Energy Resources Conservation Officers
 was held on October 6, 1981, to discuss leave procedures to be used for
 the period of the closure.  IAM was represented by five individuals,
 including Messrs. McDeshen and Mitchell (Res. Exh. 2, Tr. 64).  Colonel
 Robert P. Jones, who chaired the meeting, reviewed the October 2 letter
 (G.C. Exh. 3) and pointed out that:
 
          " . . . civilian employees will take annual leave if they have
       it accrued.  If not, and leave can be accrued by the end of the
       year, they may be given advanced leave.  If they have compensatory
       time, this can be taken.  They may also elect to take leave
       without pay.  If an employee has no annual leave, the individual
       will be allowed to work" (Res. Exh. 2;  see, also, G.C. Exh. 3).
 
    One or more of the union representatives requested that
 administrative leave be granted and Mr. Weppner responded, in part, that
 
          " . . . administrative leave cannot be authorized.
       Administrative dismissal without charge to leave is only
       appropriate for unanticipated situations, or for brief periods of
       time" (Res. Exh. 2, Tr. 65).
 
    5.  After the Energy Resources meeting, Mr. Weppner on October 6,
 1981, prepared a memorandum, signed by Mr. William J. Foland, Civilian
 Personnel Officer, addressed to the various Union Presidents, including
 IAM, which referred to the Letters of September 23 and October 2, and
 also attached an additional copy of the October 2 letter, which stated,
 in part, as follows:
 
          " . . . "2.  This officially transmits Inclosure 1 (October 2,
       1981, letter) . . . so that management can meet its obligation
       under Title VII of Public Law 95-454 to negotiate concerning the
       impact and implementation of this decision.
 
    . . .
 
 
          "4.  To effect the post-wide curtailment of operations, all
       employees not required to work on Friday, 27 November 1981, the
       day after the Federal holiday, must be placed on annual leave.
       Because the closure is anticipated and entirely within the control
       of management, there is no basis to dismiss employees without
       charge to leave or loss of pay as could be done for an unforeseen
       event.
 
                            . . .
 
 
          "6.  Any union desiring to negotiate concerning impact and
       implementation of this decision is invited to do so . . . . "
       (Res. Exh. 1).
 
    6.  By letter dated October 6, 1981, IAM requested negotiations
 stating, in part, as follows:
 
          "We have received your decision to close on 27 November 1981.
 
          "We again request to negotiate the impact of your decision . .
       . . " (G.C. Exh. 4, Res. Exh. 3;  Tr. 19).
 
    7.  Negotiations were held on October 19, 1981.  Chief spokesman for
 Respondent was Mr. Weppner;  and IAM was represented by its negotiating
 team consisting of Mr. McDeshen, Chief spokesman, Mr. Mitchell, Vice
 President, Mr. Arnold Hughes, Chief Steward, Mr. Bill Brooks, Mr. San
 Cannizzaro and Ms. Marvel Trusclair (Tr. 21, 72).  Mr. Weppner outlined
 "where we were, why we were together" (Tr. 22, 72) and Mr. McDeshen
 "suggested to Mr. Weppner that in lieu of that, that all employees be
 put on administrative leave" (Tr. 22).  Mr. Weppner responded that "the
 rules and regulations . . . do not permit him to do this and that it
 verges on nonnegotiability in his opinion" (Tr. 23).  Mr. McDeshen then
 suggested that "if he would not buy my proposal of eight hours of
 administrative leave, then we would split it with him" by which he meant
 that "if management would grant four hours administrative leave that we
 would take, we being the employees, would take four hours annual (sic)
 leave, split the difference, four and four, four hours annual leave,
 four hours administrative leave" (Tr. 23).  Mr. McDeshen testified that
 Mr. Weppner's response,
 
          " . . . was the same as the first, that it was not permitted by
       rules, laws and regulations and that it was out of the question
       and out of hand.  Also, that it would create a holiday for both
       proposals . . .
 
                               . . .
 
 
          "A.  An extra holiday.  The FPM's state something to that
       effect that you will not grant a date off to create another
       holiday" (Tr. 23-24).
 
    8.  Mr. Weppner had no recollection of any proposal by IAM for four
 hours administrative leave (Tr. 85-86).  Mr. Weppner testified that
 after the IAM made its proposal for administrative leave (Tr. 72), which
 was not a new idea but had been discussed on October 6 and again on
 October 15 when Mr. Weppner met with Messrs. McDeshen and Mitchell (Tr.
 45), and which he rejected for the same reasons he had previously stated
 (Tr. 74), IAM then made two further oral proposals.  One that employees
 who had no annual leave be advanced leave;  and the other was that those
 who had no annual leave at all be allowed to work;  to which he had
 responded that that was what Respondent had proposed, namely "that
 people who had no leave as of the 27th of November would be advanced
 leave from a period to December . . . that anyone who had used their
 total leave accrual for the whole year . . . that we had at least 15
 opportunities to work 15 persons . . . ." (Tr. 83.
 
    9.  Following a caucus, IAM presented a written proposal, prepared by
 Mr. Mitchell (Tr. 47), as follows:
 
          "To provide employees who desire to work be permitted to do so
       and that those who work be provided all the rights as per the
       negotiated agreement" (G.C. Exh. 5).
 
    Mr. Weppner testified that he caucused with his team and when they
 reconvened he rejected the IAM proposal because it was too broadly
 written, "we would have no idea how many people would show up, when they
 would go to work.  I was concerned about safety of those who might be
 working along . . . about the buildings, which ones to open, which ones
 weren't going to be used . . . And I started to give these reasons to
 Mr. McDeshen and he said . . . The commander has made his decision.
 There is no sense in talking anymore.  We are leaveing . . . I said I
 felt that was inappropriate.  So the Union walked out . . . . " (Tr.
 87).
 
    Mr. Weppner stated that he spoke further to Mr. McDeshen in the
 hallway and asked "Is there any need to get together this afternoon.  He
 indicated no" (Tr. 88).  After lunch Mr. Weppner called Mr. McDeshen
 and, again, Mr. McDeshen declined to come back on the afternoon" (Tr.
 88).  Finally, on the following day, October 20, Mr. Weppner called Mr.
 McDeshen and "again he felt that there would be no further need to get
 together . . . . " (Tr. 88).
 
    10.  Mr. McDeshen substantially agreed with Mr. Weppner but his
 emphasis was somewhat different.  Thus, he testified, in part, as
 follows:
 
          "Q.  What if anything was management's response to your written
       proposal?
 
          "A.  Their response was they rejected it totally out of hand,
       unacceptable.
 
          "Q.  Was a reason given?
 
          "A.  The reason given was that if they permitted employees to
       work it would defeat the whole purpose of the post closure for
       saving energy.
 
          "Q.  What if anything happened after management rejected the
       third proposal?
 
          "A.  After they rejected that proposal, it was getting close to
       lunch time and I reminded Dave Weppner of the time.  He asked me
       was there any sense in my opinion for us to reconvene after lunch
       at one o'clock.
 
          "Q.  What did you respond?
 
          "A.  I asked him if he would come off of his position of the
       letter of October 2 guidelines where (sic) that he would close, he
       was not permitting anyone to work.  He said no, he cannot change
       that decision.  The decision has been made.  And therefore he can
       not change it.  So I said, well, I see no sense in us reconvening
       after lunch.  He says he agrees and we broke at that time off
       negotiations" (Tr. 26).
 
    Mr. McDeshen admitted that Mr. Weppner had said that if any employees
 had no leave, "they would find work for them somewhere and he said he
 was speaking of maybe 15 employees" (Tr. 42).
 
    11.  There is no dispute that at a negotiating session held on
 November 24, 1981, with respect to a similar closing of APG on December
 24 and December 31, 1981, IAM refused to bargain about the November 27
 closing of APG because "we had filed a ULP" (Tr. 41) and when asked if
 he would discuss the Thanksgiving closing at the November 24 meeting,
 Mr. McDeshen said, "No.  I would not" (Tr. 41).  Mr. Weppner testified
 that Mr. William Layman, IAM Grand Lodge Representative, who attended
 the November 24 meeting, had state "we refuse to negotiate because we
 have this unfair labor practice charge pending" (Tr. 98).
 
    12.  The December 24 and 31 closing of APG is not in issue;  however,
 General Counsel does assert that Respondent agreed to IAM's October 19
 written proposal (G.C. Exh. 5) in December.  On November 4, 1981,
 Respondent issued notice of its decision to curtail operations on
 December 24 and 31, 1981 (Res. Exh 7) and the guidelines were
 substantially the same as those issued on October 2, 1981 (G.C. Exh. 3)
 for November 27, 1981 except as noted hereinafter;  various proposals
 were submitted (G.C. Exhs. 7, 8, 9, and 10);  but the ultimate agreement
 was as follows:
 
          "1.  Liberal Leave Policy.
 
          "2.  For those who work the terms of the agreement be upheld
       commensurate with the purpose of achieving energy savings." (G.C.
       Exh. 11).
 
                                CONCLUSIONS
 
    There is no dispute that Respondent, on October 19, 1981, rejected
 IAM's proposal for administrative leave.  Indeed, on October 6
 Respondent had stated that under Army Regulations, etc., administrative
 leave could not be granted for the reason that closure of APG was an
 anticipated and planned closing.  This was repeated at a meeting held on
 October 15 with Messrs. McDeshen and Mitchell at which time copies of
 various regulations and a Comptroller General's decision was given to
 them;  and on October 19, 1981, Mr. Weppner once more stated that
 administrative leave could not be granted under Army Regulation CPR
 990-2 (C14), 610.53 (Res. Exh. 6) and Department of Defense Regulation
 1400.25-M, CPM 990-2, 610.3 (Res. Exh 4).  CPR 990-2 provides, in part,
 as follows:
 
          "S3-2.  Relieving Daily, Hourly, or Piecework Employees
 
                from Duty
 
                           . . .
 
 
          "c.  Where advance notice can be given.  The Authority to
       excuse employees administratively is not to be used in instances
       where the period of interrupted or suspended operations can be
       anticipated sufficiently in advance to permit arranging for
       assignment to other work or the scheduling of annual leave.
       Nomally, where 24 hours' advance notice can be given, employees
       who cannot be assigned to other work must be placed on annual
       leave with or without their consent." (Res. Ex. 6).
 
    DOD Regulation 1400.25-M provides, in part, as follows:
 
          "S3-1 . . .
 
          "d.  Limitation on Authority to Dismiss Employees Without
       Change to Leave
 
    . . .
 
 
          "(2) When, because of planned management reasons, the closing
       of all or part of an activity is required for short periods of
       time, employees will be notified no less than one full work shift
       in advance and will be required to take annual leave unless leave
       without pay is requested.
 
          "(3) Group dismissal authority will not be used to create a
       holiday.
 
    Obviously, Respondent's reliance on the DOD and DA regulations as the
 basis for its rejection of IAM's demand for administrative leave was in
 good faith;  nevertheless, General Counsel asserts that because of the
 Authority's decision in Long Beach Naval Shipyard, Long Beach,
 California, 7 FLRA NO. 53 (December 16, 1981), Respondent was wrong,
 IAM's proposal was negotiable, and, as Respondent failed and refused to
 bargain on IAM's proposal, it violated Sections 16(a)(1) and (5) of the
 Statute.  I have given careful consideration to the Authority's decision
 in Long Beach Naval Shipyard, supra, but, while it is certainly
 dispositive of the negotiability of IAM's proposal under the Federal
 Personnel Manual, upon which Respondent also relied (Res. Exh. 5), I
 find nothing therein that addresses the more specific provisions of the
 DOD or DA Regulations upon which Respondent principally relied.  General
 Counsel's response to the DOD and DA Regulations was, simply, to ignore
 them.  FPM Supplement 990-2 specifically provided:
 
          "(6) 'Supplemental regulation.  Each department and agency is
       authorized to issue supplemental regulations not inconsistent with
       this subpart'" (S3-2 c. (6);
 
 Res. Exh. 5).
 
    Neither the DOD nor DA Regulations are inconsistent with the
 provisions of the FPM, cf., Defense Contract Administration Services
 Region, Boston, Massachusetts, et al., Case Nos. 1-CA-212, 1-CA-298,
 1-CA-299, and 1-CA-300 (OALJ-81-024, December 22, 1980);  Harry Diamond
 Laboratories, et al., Case Nos. 3-CA-719, 3-CA-889, and 3-CA-970
 (OALJ-81-104, May 18, 1981).  Certainly, the DOD Regulations were
 "agency" regulations within the meaning of Section 17(a)(2) and (3) of
 the Statute and the DA Regulations were issued by a "primary national
 subdivision of said agency" within the meaning of Section 17(a)(3) of
 the Statute;  IAM is not the exclusive representative of the majority of
 employees of either the DOD or DA;  and, pursuant to Section 17(a)(2),
 "matterw which are the subject of any agency rule or regulation referred
 to in paragraph (3) of this subsection" are subject to the duty to
 bargain "only if the Authority has determined under subsection (b) of
 this section that no compelling need . . . exists for the rule or
 regulation." The Authority has made no such determination that no
 compelling need exists for either the DOD or the DA Regulation, nor do I
 infer such a determination from the Authority's Long Beach Naval
 Shipyard, supra, negotiability decision.  To the contrary, in the
 absence of any reference whatever by the Authority to DOD or Department
 of the Navy Regulations in its Long Beach Naval Shipyard decision,
 supra, I must assume that the question of agency regulation, if
 applicable to the closure there involved, was not raised.  In the
 absence of a determination by the Authority, pursuant to Section 17(b)
 of the Statute, /8/ that no compelling need exists for the rule or
 regulation, Respondent was under no duty to bargain as to the grant of
 administrative leave for November 27, 1981, as the controlling DOD and
 DA Regulations specifically provided, inter alia that administrative
 leave for such period "is not to be used" for anticipated closures
 planned in advance.
 
    Respondent further asserts that IAM, in effect, "dropped" its demand
 for administrative leave when it presented its written proposal, which
 did not include it, nor did IAM thereafter renew its oral demand for
 administrative leave.  IAM asserts it did not "drop" its demand for
 administrative leave.  In view of my conclusion that Respondent was not,
 in any event, obligated to bargain on the matter of administrative
 leave, it is unnecessary to resolve this further assertion.
 
    Although not alleged in the Complaint, General Counsel further
 asserts that Respondent bargained in bad faith on October 19, 1981, by
 rejecting "a Union proposal which would have allowed a liberal leave
 policy" which it granted on December 16, 1981, as to the December 24 and
 31, 1981, closure.  For reasons set forth hereinafter, I do not agree.
 
    IAM's written proposal of October 19 was that:
 
          " . . . employees who desire to work be permitted to do so and
       that those who work be provided all the rights as per the
       negotiated agreement" (G.C. Ex. 5).
 
    The agreement of December 16, 1981, was:
 
          "1.  Liberal Leave Policy
 
          "2.  For those who work the terms of the agreement be upheld
       commensurate with the purpose of achieving energy savings" (G.C.
       Exh. 6).
 
    General Counsel uses the Phrase "Liberal Leave Policy" to mean
 something quite different than the words would indicate, namely, that
 Respondent would operate, i.e., APG would not be closed.  Of course,
 there was no question that Respondent had proposed to grant leave
 liberally.  If it were assumed that "liberal leave policy" meant that
 APG would be open, then IAM's October 19 proposal that "employees who
 desire to work be permitted to do so" may have implied the same meaning;
  but more significant is that Paragraphs 6 and 7 of Respondent's
 November 4, 1981, notice provided, in part, as follows:
 
          "6.  I realize that some employees will desire to come to work
       rather than choose the leave/compensatory options avaialble to
       them as listed in paragraphs 4 and 5 above.  Employees choosing to
       work will, in most cases, be required to work in minimally heated
       facilities.  Installation-wide support is needed in curtailing
       operations furing this period . . .
 
          "7.  Guidance previously disseminated in DF, STEP-CP-M, 2
       October 1981, subject:  Thanksgiving Day Holiday Period, regarding
       the curtailment of operations during that period remains as stated
       therein.  Individual latitude regarding work during the Christmas
       period is being granted since sufficient time may not remain for
       some employees to accrue leave to cover absences during this time
       frame" (Res. Exh. 7).
 
    Consequently, Respondent's decision to curtail operations on December
 24 and 31, 1981, was significantly different than its decision as to
 November 27, 1981, in that, because it recognized that some employees
 would be unable, in the time remaining in the leave year, to accrue
 leave to cover the December dates, Respondent proposed to grant
 "individual latitude regarding work during the Christmas period".
 Accordingly, there was no question that the bargaining which took place
 was foursquare within the bounds of impact and implementation of
 Respondent's curtailment decision.
 
    I have grave reservations that IAM's written proposal of October 19
 was within Respondent's obligation to bargain on impact and
 implementation.  That is, where management exercises a reserved right in
 deciding to close a facility, bargaining on impact and implementation
 does not extend to negating that decision.  Nevertheless, I do not reach
 this question.  Rather, I conclude that IAM terminated negotiations on
 October 19 without bargaining fully.  In this regard, I fully credit the
 testimony of Mr. Weppner that when he started to give his reasons for
 rejecting IAM's proposal because it was too broadly written, "we would
 have no idea how many people would show up, where they would go to work.
  I was concerned about safety . . . about the buildings, which ones to
 open, which ones weren't going to be used . . . ", Mr. McDeshen said
 "there is no sense in talking anymore.  We are leaving . . . I said I
 felt that was inappropriate.  So the Union walked out . . ." (Tr. 87).
 There is no dispute that Respondent rejected IAM's written proposal;
 but from the testimony of Mr. Weppner, which is fully supported by the
 testimony of Ms. Marguerite Zealor, Labor Relations Specialist (Tr.
 108), Mr. Kersey Alexander Jones, Jr., Material Testing Director (Tr.
 113), and Mr. Thomas S. Swartz, Facilities Engineering Director (Tr.
 117-119), members of Respondent's negotiating committee, the record does
 not show any refusal of Respondent to bargain on October 19.  To the
 contrary the record shows that Respondent indicated it would still like
 to discuss impact (Tr. 119) and, although Respondent stated that it was
 unacceptable to have no control, the record does not show that
 Respondent in any way foreclosed consideration of IAM's proposal that
 employees be permitted to work.  Indeed, the record shows that further
 negotiations were foreclosed only by IAM's precipitous termination of
 negotiations.  If as might appear from Mr. McDeshen's testimony (Tr. 26)
 and from the testimony of Mr. Mitchell (Tr. 48), that IAM was, in fact,
 seeking to change the decision to close the APG on November 27, which
 was a reserved right of management, then Respondent's refusal to bargain
 would not, in any event, have violated Sections 16(a)(1)or (5) as
 Respondent was obligated to bargain only as to impact and
 implementation, i.e., as the Statute states, "procedures which
 management . . . will observe" or "appropriate arrangements for
 employees adversely affected by the exercise of any authority under this
 section . . . . " (Section 6(b)(2) and (3)), not the decision itself,
 Department of the Air Force, 47th Air Base Group, 4 FLRA NO. 65 (1980).
 Nor, of course, was either Mr. McDeshen or Mr. Mitchell correct that
 under Paragraph 4 of the October notice specifically provided, in part,
 as follows:
 
          "4.  Even though their services are not required on 27 November
       1981, the following employees must, at their discretion, be
       allowed to work or use leave without pay requested by SF 71:
 
          "a.  Employees who have used all available leave (accrued and
       advanced) . . . ." (G.C. Exh. 3).
 
    The record is further clear that on October 19 Mr. Weppner had stated
 that "we had at least 15 opportunities to work 15 persons" (Tr. 83, see,
 also, Tr. 42).
 
    The record further shows, as Mr. Weppner testified, that IAM declined
 both on the afternoon of October 19 and on October 20, 1981, to
 negotiate further and, finally, on November 24, 1981, refused to
 negotiate concerning the November 27 closure because IAM "had filed a
 ULP.  Therefore the issue was closed . . . . " (Tr. 41).  Of course, IAM
 is not charged with a refusal to bargain at any time.  The obligation to
 bargain is a continuing obligation and a charge that a refusal to
 bargain occurred on a prior occasion neither excused a subsequent
 refusal to bargain nor is its pendency a defence to an appropriate
 subsequent demand to bargain, cf. Kentucky National Guard, 4 FLRA NO. 73
 (1980);  but that is not the situation here.  Nevertheless, Respondent,
 on November 24, 1981, invited further negotiations on the impact and
 implementation of the November 27, 1981, closure as part of the
 negotiations with respect to the December 24 and 31 closure, which IAM
 declined.  Legally, a refusal to bargain on one occasion is not "cured"
 by an offer to bargain at a later date, Vandenberg AFB, 4392d Aerospace
 Support Group, Vandenberg AFB, California, A/SLMR No. 435, 4 A/SLMR 626
 (1974) (Compare decision of the Administrative Law Judge, 4 A/SLMR at
 633, and the decision of the Assistant Secretary, 4 A/SLMR at 627)
 although the Council, on appeal, held that where, as in Vandenberg, a
 brief interruption of negotiations has a de minimis effect a finding of
 a violation is not warranted, FLRC No. 74A-77, 3 FLRC 491 (1975), 5
 A/SLMR No. 554, 5 A/SLMR 574 (1975).  Had Respondent refused to bargain
 in good faith on October 19, 1981, it would not have been "cured" by
 Respondent's offer to bargain on November 24, 1981.  I have found,
 however, that Respondent did not refuse to bargain in good faith on
 October 19, 1981, notwithstanding that Respondent rejected IAM's
 proposal as written, for the reason that IAM terminated negotiations
 without bargaining fully on matters of impact and implementation within
 the scope of Respondent's obligation to bargain, and, accordingly,
 Respondent's offer to bargain on November 24, 1981, with respect to the
 November 27, 1981, closing of APG reaffirmed Respondent's offer to
 continue negotiations made both on October 19 and 20 and, to this
 extent, shows that Respondent did not refuse to bargain as to the impact
 and implementation of its decision to close APG on November 27, 1981.
 Indeed, because IAM declined to negotiate the November 27 closure on
 November 24, it cannot be known whether negotiations as to the December
 24 and 31 curtailment, which resulted in an agreement, would have
 affected the November 27 closure.
 
    Having found that Respondent did not violate Section 16(a)(5) or (1)
 of the Statute, as alleged in the Complaint, by refusing to negotiate on
 the grant of administrative leave for November 27, 1981, as the grant of
 administrative leave was precluded by controlling DOD and DA
 Regulations, and that Respondent did not otherwise fail or refuse to
 bargain in good faith on the impact and implementation of its decision
 to close APG on November 27, 1981, it is recommended that the Authority
 adopt the following:
 
                                   ORDER
 
    The Complaint in Case No. 3-CA-20077 be, and the same is hereby,
 dismissed.
                                       /s/ WILLIAM B. DEVANEY
                                       Administrative Law Judge
 
    Dated:  June 15, 1982
 
    Washington, D.C.
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) The court remanded the matter to the Authority for the sole
 purpose of permitting the petitioners to present evidence as to whether
 or not there existed a compelling need for the particular regulation at
 issue.  On April 22, 1985, the Authority remanded the proceeding to the
 Chief Administrative Law Judge for disposition consistent with the
 direction of the court.  Thereafter, on March 31, 1986, the complaint
 was withdrawn.  In the instant case, by contrast, as the Respondent
 asserts that compelling need was established at the hearing as well as
 that compelling need msut be determined in a separate proceeding, the
 Authority concludes that the Respondent was permitted to present
 evidence as to whether or not there existed a compelling need for the
 regulations at issue.
 
    (2) The Authority notes that the United States Court of Appeals for
 the Fourth Circuit recently reversed an Authority decision on this same
 issue, U.S. Army Engineer Center and Fort Belvoir, 13 FLRA 707 (1984),
 reversed sub nom. United States Army Engineer Center v. FLRA, 762 F.2d
 409 (4th Cir. 1985), rehearing denied (July 26, 1985).  In the
 Authority's Supplemental Decision and Order in that case, U.S. Army
 Engineer Center and Fort Belvoir, 19 FLRA NO. 92 (1985), the Authority
 stated it "accepts the CourtS opinion as the law of the case and,
 consistent with that opinion, shall order that the complaint in Case No.
 3-CA-20133 be dismissed." Slip op. at 2.
 
    (3) Indeed, the Authority often has made negotiability determinations
 in unfair labor practice proceedings where necessary to resolve the
 allegations that unlawful unilateral changes in working conditions were
 made in violation of the duty to bargain in good faith.  See, e.g.,
 Department of Transportation, 19 FLRA NO. 1 (1985), petition for review
 filed sub nom. American Federation of Government Employees, Local 2747
 v. FLRA, No. 85-1561 (D.C. Cir. September 9, 1985);  Immigration and
 Naturalization Service, Eastern Regional Office (Burlington, Vermont),
 18 FLRA No. 103 (1985);  Department of Health and Human Services, Social
 Security Administration, 10 FLRA 77 (1982);  Oklahoma City Air Logistics
 Center, Tinker Air Force Base, Oklahoma, 8 FLRA 740 (1982), enforced sub
 nom. FLRA v. United States Dept. of the Air Force, 735 F.2d 1513 (D.C.
 Cir. 1984).
 
    (4) See the 1975 "Report and Recommendations of the Federal Labor
 Relations Council on the Amendment of Executive Order 11491, as
 Amended," reprinted in Subcom. on Postal Personnel and Modernization of
 the Comm. on Post Office and Civil Service, 96th Cong. 1st Sess.,
 Legislative History of the Federal Service Labor-Management Relat