21:0957(112)CA - Air Force, Wash., DC and Air Force, Electronic Sys. Div., Hanscom AFB Bedford, Mass. and NAGE, Local R1-8 -- 1986 FLRAdec CA



[ v21 p957 ]
21:0957(112)CA
The decision of the Authority follows:


 21 FLRA No. 112
 
 U.S. AIR FORCE, WASHINGTON, D.C. 
 AND U.S. AIR FORCE, ELECTRONIC SYSTEMS 
 DIVISION, HANSCOM AIR FORCE BASE 
 BEDFORD, MASSACHUSETTS
 Respondents
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT 
 EMPLOYEES, LOCAL R1-8
 Charging Party
 
                                            Case No. 1-CA-853
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 to the attached Decision of the Administrative Law Judge filed by the
 General Counsel.  The complaint alleged that Respondent U.S. Air Force
 (USAF) and Respondent U.S. Air Force, Electronic Systems Division,
 Hanscom Air Force Base (the Activity) violated section 7116(a)(1) and
 (5) of the Federal Service Labor-Management Relations Statute (the
 Statute) by refusing to bargain in good faith with the National
 Association of Government Employees, Local R1-8 (NAGE), concerning a
 change in the Air Force regulation governing the standard of negligence
 to be used in assessing liability against unit employees for the loss,
 damage or destruction of Government property, and by unilaterally
 changing existing conditions of employment of employees in the
 bargaining unit by implementing the new regulation governing the
 standard of negligence without first bargaining with NAGE.  The issue
 before the Authority is whether the Judge properly dismissed the
 complaint.
 
                           II.  Background Facts
 
    Prior to April 1981, Air Force Regulations (AFR 177-111) provided
 that civilian employees' liability for the loss, damage or destruction
 of Government property required a finding of gross negligence.  In
 April, representatives of Respondent U.S. Air Force, Electronic Systems
 Division, Hanscom Air Force Base, the Activity, informed NAGE and other
 labor organizations at Hanscom Air Force Base that the Activity was
 going to implement a new AFR 177-111 which would change the existing
 standard of care so that employees would be liable for loss or damage to
 government property on the basis of their simple negligence.  NAGE
 requested bargaining over the substance of the change, essentially
 proposing that the existing standard of care be retained, and over the
 procedures for implementation of the change and appropriate arrangements
 for adversely affected employees.  The date for implementing the revised
 regulation was postponed while the Activity and NAGE exchanged proposals
 and negotiated concerning procedures and appropriate arrangements.
 However, the Acitivity's representative refused to negotiate concerning
 the substance of the change on the basis that it had no local authority
 to negotiate concerning the change in the standard of care.  The
 Activity took this position based upon telephonic advice which it had
 received from Respondent USAF.  NAGE continued to request negotiations
 concerning the substance of the change in the regulatory standard of
 care and the Activity continued to reject the request.  Revised AFR
 177-111, incorporating the change in the standard of care, was
 implemented by the Activity on July 6, 1981.
 
                        III.  The Judge's Decision
 
    The Judge dismissed the complaint on the basis that, Respondents had
 no duty to bargain on the subject matter of an agency regulation unless
 the Authority determined that no compelling need exists for the
 regulation and that such a determination cannot be made in the context
 of an unfair labor practice proceeding.  Accordingly, the Judge
 concluded that neither Respondent had violated section 7116(a)(1) and
 (5) of the Statute.
 
                       IV.  Positions of the Parties
 
    The General Counsel excepted to the Judge's dismissal of the
 complaint.  Essentially the General Counsel argued that the Judge erred
 as a matter of law in concluding that where the alleged unilateral
 change involves a regulation covered by section 7117(a)(2) of the
 Statute, the Union must first seek a determination by the Authority
 concerning whether or not there is a "compelling need" for the
 regulation before it could pursue an unfair labor practice over the
 Respondents' refusal to engage in local negotiations concerning the
 implementation of its national regulation.  The General Counsel argued
 that the issue of compelling need could be initially addressed in an
 unfair labor practice proceeding;  that the Respondents had the burden
 of establishing compelling need;  that they had failed to do so;  and
 that their conduct therefore constituted a violation of section
 7116(a)(1) and (5) of the Statute.
 
    The Respondents' brief in opposition to the exceptions of the General
 Counsel essentially argued that the Judge was correct in concluding that
 the Authority's negotiability procedures for determining "compelling
 need" must be utilized before any unfair labor practice could be found.
 
                               V.  Analysis
 
    The Authority adopts the Judge's conclusion that the complaint must
 be dismissed but not for the reasons stated by the Judge.
 
    Subsequent to the issuance of the Judge's Decision in this case, the
 Authority issued its decision in Defense Logistics Agency (Cameron
 Station, Virginia) et al., 12 FLRA 412 (1983), affirmed sub nom. Defense
 Logistics Agency, et al. v. FLRA, 754 F.2d 1003 (D.C. Cir. 1985), /1/
 finding that questions concerning the existence of a compelling need for
 agency regulations may appropriately be decided in an unfair labor
 practice proceeding, and that management is required to come forward
 with affirmative support for its assertion that there is a compelling
 need for the regulation in question which justified its refusal to
 bargain.  See also Aberdeen Proving Ground, Department of the Army, 21
 FLRA No. 100 (1986) and Department of Defense Dependents Schools,
 Mediterranean Region (Madrid, Spain);  and Zaragoza High School
 (Zaragoza, Spain), 19 FLRA No. 54 (1985).  But see United States Army
 Engineer Center v. FLRA 762 F.2d 409 (4th Cir. 1985), reversing the
 Authority's decision in U.S. Army Engineer Center and Fort Belvoir, 13
 FLRA 707 (1984).  Thus the Authority does not adopt the Judge's
 rationale for dismissing the complaint.
 
    However, the Authority concludes that the Activity did not violate
 section 7116(a)(1) and (5) of the Statute by issuing its revised
 regulation without bargaining over the substance of such change because
 the subject over which the Activity refused to bargain was NAGE's
 proposal to change the standard of care for lost, damaged or destroyed
 Government property upon which to base employee liability.  Thus, the
 new Air Force regulation established a standard of simple negligence for
 the imposition of liability while the Union's proposal sought to
 establish a standard of "proven, willful, wanton, or reckless conduct
 directly attributed to the actions of the employee." Proposals such as
 this have been determined to be nonnegotiable.  The Authority has found
 that union proposals which seek to limit the amount of money an employee
 may be required to pay for lost or damaged property, or proposals which
 seek to establish the standard to be used in determining whether an
 employee will be held pecuniarily liable for the loss, damage, or
 destruction of government property, directly interfere with management's
 right to determine its internal security practices under section
 7106(a)(1) of the Statute.  American Federation of Government Employees,
 AFL-CIO, Council 214 and Department of the Air Force, Headquarters Air
 Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 21 FLRA
 No. 34 (1986) and National Federation of Federal Employees, Local 29 and
 Department of the Army, Kansas City District, U.S. Army Corps of
 Engineers, Kansas City Missouri, 21 FLRA No. 32 (1986).  Therefore,
 NAGE's proposal was outside the duty to bargain and the Activity's
 refusal to negotiate over the proposal did not violate section
 7116(a)(1) and (5) of the Statute.  The Authority also concludes, based
 on the facts set forth above, that the Respondent USAF did not refuse to
 bargain nor did it cause the Activity improperly to do so.
 
                              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, finds that no prejudicial error was
 committed, and thus affirms those rulings.  The Authority has considered
 the Judge's Decision, the positions of the parties and the entire
 record, and adopts the Judge's findings and conclusions only to the
 extent consistent with this decision.  For the reasons set forth above,
 the Authority therefore concludes that the complaint must be dismissed.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 1-CA-853, be, and it
 hereby is, dismissed.
 
    Issued, Washington, D.C., May 22, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 1-CA-853
 
 U.S. AIR FORCE, WASHINGTON, D.C. and U.S. AIR FORCE, ELECTRONIC
 SYSTEMS DIVISION HANSCOM AIR FORCE BASE (BEDFORD,
 MASSACHUSETTS)
    Respondent
 
                                    and
 
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-8
    Charging Party
 
    James A. Harper, Esq.
    For Respondents
 
    Gerard M. Green, Esq.
    For General Counsel, FLRA
 
    Before:  SAMUEL A. CHAITOVITZ
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 Section 7101 et seq., 92 Stat. 1191 (hereinafter referred to as the
 Statute), and the Rules and Regulations of the Federal Labor Relations
 Authority (FLRA), 5 C.F.R. XIV, Section 2410 et seq.
 
    A charge was filed on July 29, 1981 and was amended on August 5, 1981
 by National Association of Government Employees, Local R1-8 (hereinafter
 called the Union and/or NAGE), against United States Air Force and U.S.
 Air Force Electronic Systems Division, Hanscom Air Force Base, MA
 (hereinafter referred to as Respondents).  Pursuant to the above
 described charge and amended charge the General Counsel of the FLRA, by
 the Director of Region 1, issued a Complaint and Notice of Hearing on
 October 9, 1981 alleging that Respondents violated Sections 7116(a)(1)
 and (5) of the Statute by unilaterally changing the standard of
 negligence to be used in assessing employee liability for damage to
 Government property.  Respondents filed an Answer denying that the
 Statute had been violated.
 
    A hearing in this matter was conducted before the undersigned in
 Boston, Massachusetts.  The Respondents and Counsel for the FLRA were
 represented and afforded full opportunity to be heard, to examine and
 cross-examine witnesses, to introduce evidence and to argue orally.
 Post hearing briefs were filed and have been fully considered.
 
    Based upon the entire record in this matter, my observation of the
 witnesses and their demeanor, and from my evaluation of the evidence, I
 make the following:
 
                             Findings of Fact
 
    At all times material herein NAGE has been the collective bargaining
 representative for a unit composed of all of Respondent's
 non-supervisory and non-professional General Schedule employees serviced
 by the U.S. Air Force Electronic Systems Division Central Personnel
 Office At Hanscom Air Force Base.  The unit contains approximately 1,400
 employees.
 
    Since at least 1978 until April 22, 1981 Air Force Regulations (AFR
 177-111) provided that civilian employees' liability for the loss,
 damage or destruction of Government property was based upon a finding of
 gross negligence.
 
    On April 22, 1981 representatives of the U.S. Air Force Electronics
 Systems Division at Hanscom Air Force Base informed NAGE President
 Norman Downes and representatives of other labor organizations
 representing employees at the Hanscom Air Force Base, that the Hanscom
 Air Force Base would implement on May 1, 1981 a new AFR 177-111 which
 inter alia, changed the existing standard of care for lost, damaged, or
 destroyed Government property upon which to base employee liability, to
 simple negligence /2/ from gross negligence.  The Hanscom Air Force Base
 representatives provided Downes with a copy of revised AFR 177-111.
 Downes requested that representatives of U.S. Air Force Electronic
 Systems Division at the Hanscom Air Force Base negotiate with NAGE
 concerning the decision to change the standard of care.  There was no
 response to Downe's request.  On April 22 Downes wrote a letter to Denis
 Pelley, Chief of the Labor Relations Office of Hanscom Air Force Base,
 in which Downes requested to negotiate concerning the change in the
 proposed AFR.
 
    The date for implementing revised AFR 177-111, was postponed while
 the parties exchanged proposals and negotiated the impact and
 implementation of the change.  /3/
 
    During June 1981, Respondents' representative, Captain Gruenwald, of
 the Judge Avocate General's Office, advised NAGE that Hanscom Air Force
 Base had no local authority to negotiate concerning the substance of the
 change in AFR 177-111.  Pelley and Mr. Kennedy, of the Hanscom Air Force
 Base Labor Relations Office, also advised NAGE that Hanscom Air Force
 base could not bargain with NAGE concerning the substance of the change
 in AFR 177-111;  that this matter could not be negotiated at this local
 level.  Pelley took this position after he was telephonically advised to
 do so in June 1981, by Chester Nelson, Chief of Staffing and Labor
 Relations, Headquarters, U.S. Air Force Systems Command, Andrews Air
 Force Base.
 
    By memorandum dated June 29, 1981 Pelley advised Downes that the
 revised AFR 177-111 would be implemented on July 6, 1981.
 
    By letter dated June 30, 1981 Downes submitted to Gruenwald a written
 proposal concerning AFR 177-111 and the standard of care.  By letter
 dated July 2 from Downes to Pelley, Downes reiterated his request to
 negotiate concerning the change in the standard of care.
 
    The revised AFR 177-111, incorporating the change in the standard of
 care, was implemented on July 6, 1981.
 
    Downes wrote a letter dated July 10 to Pelley reiterating his request
 to negotiate with respect to the standard of care.
 
    By letter dated July 14, 1981 from Colonel Thomas O. Duff, Commander
 of Hanscom Air Force Base, to Downes, Duff rejected Downes' request to
 bargain concerning the standard of care because "Management's obligation
 to bargain with you does not extend to the first proposal . . . as it
 would change the substance of an Air Force Regulation, specifically
 Chapter 1, Property Accountable-General, Paragraph 10005F, Principles of
 AFR 177-111 (Test) . . . "
 
    NAGE was never given any reason for Hanscom Air Force Base's refusal
 to bargain about the change in the standard of care other than that it
 involved a change in an Air Force regulation and that the local activity
 lacked authority to negotiate about the substance of the change.
 
                        Discussion and Conclusions
 
    Section 7117 of the Statute provides:
 
          "(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) The duty to bargain in good faith shall, to the extent not
       inconsistent with Federal Law or any Government-wide rule or
       regulation, extend to matters which are the subject of any agency
       rule or regulation referred to in paragraph (3) of this subsection
       only if the Authority has determined under subsection (b) of this
       section that no compelling need (as determined under regulations
       prescribed by the Authority) exists for the rule or regulation.
 
          (3) Paragraph (2) of the subsection applies to any rule or
       regulation issued by any agency or issued by any primary national
       subdivision of such agency, unless an exclusive representative
       represents an appropriate unit including not less than a majority
       of the employees in the issuing agency or primary national
       subdivision, as the case may be, to whom the rule or regulation is
       applicable.
 
          (b)(1) In any case of collective bargaining in which an
       exclusive representative alleges that no compelling need exists
       for any rule or regulation referred to in subsection (a)(3) of
       this section which is then in effect and which governs any matter
       at issue in such collective bargaining, the Authority shall
       determine under paragraph (2) of this subsection, in accordance
       with regulations prescribed by the Authority, whether such a
       compelling need exists.
 
          (2) For the purpose of this section, a compelling need shall be
       determined not to exist for any rule or regulation only if -
 
          (A) the agency, or primary national subdivision, as the case
       may be, which issued the rule or regulation informs the Authority
       in writing that a compelling need for the rule or regulation does
       not exist;  or
 
          (B) the Authority determines that a compelling need for a rule
       or regulation does not exist.
 
          (3) A hearing may be held, in the discretion of the Authority,
       before a determination is made under this subsection.  If a
       hearing is held, it shall be expedited to the extent practicable
       and shall not include the General Counsel as a party.
 
          (4) The agency, or primary national subdivision, as the case
       may be, which issued the rule or regulation shall be a necessary
       party at any hearing under this subsection.
 
          (c)(1) Except in any case to which subsection (b) of this
       section applies, if an agency involved in collective bargaining
       with an exclusive representative alleges that the duty to bargain
       in good faith does not extend to any matter, the exclusive
       representative may appeal the allegation to the Authority in
       accordance with the provisions of this subsection."
 
    Section 7117(a)(2) of the Statute provides that the duty to bargain
 extends to matters which are the subject of an agency regulation only if
 the FLRA has determined that no compelling need exists for the
 regulation.
 
    The subject case deals with a matter, standard of care, which is the
 subject of an agency regulation, or more accurately a regulation issued
 by an agency or primary subdivision as described in Section 7117(a)(3)
 of the Statute.  Pursuant to Section 7117(a)(2) of the Statute
 Respondents have no duty to bargain concerning standard of care until
 the FLRA has first determined that no compelling need exists for AFR
 177-111.  Thus, it is necessary that the FLRA make a finding that there
 is no compelling need for AFR 177-111 before a finding can be made that
 Respondents have an obligation to bargain about the standard of care set
 forth in revised AFR 177-111.  Because NAGE did not first pursue the
 procedures provided for presenting the compelling need issue to the
 FLRA, I am unable to conclude that Respondent violated Sections
 7116(a)(1) and (5) of the Statute by refusing to bargain with NAGE
 concerning the change in the standard of care.  I adopt the reasoning
 and conclusions set forth by the Administrative Law Judges in Boston
 District Recruiting Command, 1-CA-206, OALJ-81-023 (1980);  Defense
 Logistics Agency, et al, 1-CA-213, OALJ-81-131 (1981);  Headquarters,
 Defense Logistics Agency, 3-CA-664, OALJ-81-133 (1981);  and Department
 of the Air Force, Air Force Logistics Command, Wright-Patterson Air
 Force Base, Ohio, 5-CA-20018, OALJ-83-06 (1982).
 
    Accordingly, although certain other unilateral changes might be
 pursued by either the unfair labor practice procedures or the
 negotiability procedures, where the alleged unilateral change involves a
 regulation covered by Section 7117(a)(2) of the Statute, the "compelling
 need" procedures must be utilized before any unfair labor practice can
 be found.
 
    In view of the foregoing, I conclude that the record fails to
 establish that Respondents violated Sections 7116(a)(1) and (5) of the
 Statute.  Accordingly, it is recommended that the FLRA issue the
 following:
 
                                   ORDER
 
    The Complaint in Case No. 1-CA-853 is hereby dismissed.
 
                                       /s/ SAMUEL A. CHAITOVITZ
                                       Administrative Law Judge
 
    Dated:  October 22, 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
 there existed a compelling need for the particular regulation at issue.
 On April 22, 1985, the