24:0334(38)CA - DOD, Air Force, HQ, ATC Lackland AFB, TX and AFGE Local 1367 -- 1986 FLRAdec CA



[ v24 p334 ]
24:0334(38)CA
The decision of the Authority follows:


 24 FLRA No. 38
 
 UNITED STATES DEPARTMENT OF DEFENSE 
 DEPARTMENT OF THE AIR FORCE 
 HEADQUARTERS, AIR FORCE TRAINING CENTER (ATC) 
 LACKLAND AIR FORCE BASE, TEXAS
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1367, AFL-CIO
 Charging Party
 
                                            Case No. 6-CA-40408
 
                            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 essentially alleged that Respondent
 violated section 7116(a)(1) and (5) of the Statute when it failed to
 provide the Union adequate notice of, or an opportunity to bargain in
 good faith concerning procedures and appropriate arrangements for
 adversely affected employees on the implemention of revised Air Force
 Regulation 40-452, Performance Management Program.  We conclude that the
 Respondent committed the unfair labor practice as alleged.
 
    II.  Facts
 
    On June 4, 1983, the Respondent hand-delivered to the Union a letter
 informing it of a forthcoming revised regulation, AFR 40-452, entitled
 "Performance Management Program," to be implemented on July 1.  A draft
 of the regulation, consisting of nearly 200 pages including a "Summary
 of Changes" listing 17 changes in the regulation, was attached to the
 letter.  The Respondent informed the Union that it would explain the
 regulation and its changes and provide the Union with more information
 at a later date.
 
    Although the Respondent conducted a briefing on June 13 with the
 Union, explaining the most important changes of the regulation
 concerning the Union, the briefing was not completed because the
 Respondent's representative was unable to answer the Union's questions
 in detail.  During this meeting, the Respondent asked the Union to
 submit its proposals regarding the revised regulation.  The Union
 replied that the briefing lacked specificity and it could not submit its
 proposals until the briefing was completed.  The Union asked that it be
 given various Air Force regulations referred to in AFR 40-452, and
 Respondent replied that they were available in the publication library.
 Respondent's representative concluded the meeting by saying that he
 would get back to the Union to finish the briefing.  On June 14, the
 Respondent again asked the Union to submit proposals in writing.
 Thereafter, the Union was not able to review the regulations mentioned
 in AFR 40-452 because they were not available in the publication
 library.
 
    On June 28, when the Union reminded the Respondent's representative
 that he had not returned to finish the briefing, the representative
 replied that there would be no further discussions on the matter.  On
 June 29, late on a Friday afternoon, the Union gave the Respondent a
 letter that requested:  (1) negotiation on the impact and implementation
 of AFR 40-452;  and, (2) the postponement of its implementation until
 after the parties completed negotiations.  Upon receipt of the request
 to negotiate, the Respondent told the Union that the submission was
 late.  The Respondent implemented the regulation on July 1.
 Subsequently, on July 19, the Union submitted a written list of
 proposals to the Commander of the Base.  No bargaining took place with
 respect to the regulation.
 
    III.  Judge's Decision
 
    The Judge concluded that the Respondent did not violate section
 7116(a)(1) and (5) of the Statute as alleged.  He found that the Union's
 request to bargain at the "eleventh hour" was untimely, noting
 particularly that the request was made on June 29, late on a Friday
 afternoon just before the proposed implementation of the new regulation
 on Sunday, July 1.  Also, the Judge found that the Respondent:  (1) gave
 the Union adequate notice of the change and the specific details of the
 regulation to enable the Union to make proposals to management;  and (2)
 requested, on several occasions, the Union to submit proposals.
 Further, he found that although the Respondent conducted a briefing
 session with the Union concerning the regulation and indicated its
 intention to resume briefings, it was not obliged to do so.
 
    Finally, the Judge found that the Union's proposals given to the Base
 Commander on July 19 would not support a refusal to bargain allegation.
 He found that the request to bargain after changes were implemented was
 also untimely.
 
    IV.  Positions of the Parties
 
    The General Counsel excepts to the Judge summarily rejecting the need
 for adequate information needed by the Union for bargaining.  The
 General Counsel contends that the Respondent misled the Union into
 reliance on a briefing and the availability of documentation, and
 subsequently abrogated all commitments and refused to bargain with the
 Union on the matter.  The Respondent filed a brief in opposition to the
 General Counsel's exceptions.
 
    V.  Analysis
 
    We find, contrary to the Judge, that the Respondent violated section
 7116(a)(1) and (5) of the Statute by refusing to bargain in good faith
 with the Union concerning procedures and appropriate arrangements for
 adversely affected employees on the implementation of AFR 40-452.  After
 the Union was notified of the impending changes in the regulation, it
 requested the Respondent to explain the regulation and its changes as
 well as provide more information to the Union.  The Respondent committed
 itself to provide the information and to give the Union a briefing.
 Although a briefing was held on June 13, it was not completed because
 the Respondent's representative was unable to answer the Union's
 questions.  During the briefing the Respondent's representative asked
 the Union to submit bargaining proposals.  The Union responded that the
 briefing lacked the specificity it needed to submit proposals and that
 it could not submit proposals unitl the briefing was concluded and the
 changes from the previous regulation had been identified.  The Judge
 credits the testimony of the Union that the Respondent's representative
 stated that he would get back to the Union to finish the briefing.  It
 was not until June 28, two working days before implementation of the
 regulation, that the Union was informed that there would be no further
 discussion of the matter.  The Union requested negoitations and
 postponement of the implementation of the regulation on the following
 day, prior to the date the Respondent established to implement the
 regulation.
 
    We find that the Union was misled by the Respondent's representative
 when he stated that he would finish the briefing and provide the Union
 with additional information necessary for the Union to submit
 appropriate proposals.  It was this failure by the Respondent to provide
 the necessary information that delayed the Union in submitting
 bargaining proposals.  In these circumstances, the Union's request to
 bargain was timely.  Therefore, we find that the Respondent violated the
 Statute by failing to bargain in good faith with the Union over
 procedures and appropriate arrangements for adversly affected employees
 before it implemented the revised regulation.  See Department of the Air
 Force, Scott Air Force Base, Illinois, 19 FLRA No. 13 (1985).  In view
 of our conclusion, it is unnecessary to address the Judge's conclusion
 regarding the Union's post-implementation proposals.
 
    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 and the entire record in this case, and adopts the
 Judge's findings and conclusions only as modified.  We find, contrary to
 the Judge, that the Respondent failed and refused to bargain in good
 faith with the Union concerning procedures and appropriate arrangements
 for adversely affected employees on the implementation of AFR 40-452, in
 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 orders that
 the United States Department of Defense, Department of the Air Force
 Headquarters, Air Force Training Center, ATC, Lackland Air Force Base,
 Texas shall:
 
          (1) Cease and desist from:
 
          (a) Failing and refusing to bargain in good faith with the
       American Federation of Government Employees, AFL-CIO, Local 1367,
       the exclusive representative of its employees, and affording it
       the opportunity to bargain concerning procedures and appropriate
       arrangements of adversly affected employees on the implementation
       of revised Air Force Regulation 40-452, Performance Management
       Program.
 
          (b) In any like or related manner interfering with, restraining
       or coercing its employees in the exercise of their rights assured
       by the Statute.
 
          (2) Take the following affirmative action in order to
       effectuate the purposes and policies of the Statute:
 
          (a) Upon request, bargain in good faith with the American
       Federation of Government Employees, AFL-CIO, Local 1367, the
       exclusive representative of its employees, concerning procedures
       and appropriate arrangements of adversly affected employees on the
       implementation of revised Air Force Regulation 40-452, Performance
       Management Program.
 
          (b) Post at its facilities at Lackland Air Force Base 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, Lackland Air Force Base, and shall be
       posted and maintained for 60 consecutive days thereafter, in
       conspicuous places, including all places where notices to
       employees are customarily posted.  Reasonable steps shall be taken
       to ensure 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 VI, Federal
       Labor Relations Authority, in writing, within 30 days from the
       date of this Order, as to what steps have been taken to comply.
 
    Issued, Washington, D.C. December 5, 1986.
 
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       Jean McKee, 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 and refuse to bargain in good faith with the
 American Federation of Government Employees, AFL-CIO, Local 1367, the
 exclusive representative of our employees, and afford it the opportunity
 to bargain concerning procedures and appropriate arrangements of
 adversely affected employees on the implementation of revised Air Force
 Regulation 40-452, Performance Management Program.
 
    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, bargain in good faith with the American
 Federation of Government Employees, AFL-CIO, Local 1367, the exclusive
 representative or our employees, concerning procedures and appropriate
 arrangements of adversely affected employees on the implementation of
 revised Air Force Regulation 40-452, Performance Management Program.
 
                                (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 VI, Federal Labor Relations Authority, whose address
 is:  525 Griffin Street, Suite 926, Dallas, Texas 75202, and whose
 telephone number is:  (214) 767-4996.
 
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 6-CA-40408
 
 UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT 
 OF THE AIR FORCE HEADQUARTERS, AIR FORCE TRAINING 
 CENTER, ATC, LACKLAND AIR FORCE BASE, TEXAS
    Respondent
 
                                    and
 
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 
 AFL-CIO, LOCAL 1367
    Charging Parties
 
    Charles L. Brower, Lt. Col., USAF
    For the Respondent
 
    Susan E. Jelen, Esquire,
    For the General Counsel
 
    Before:  WILLIAM NAIMARK
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    Pursuant to a Compliant and Notice of Hearing issued on August 23,
 1985 by the Regional Director for the Federal Labor Relations Authority,
 Dallas, Texas, a hearing was held before the undersigned on October 29,
 1985 at San Antonio, Texas.
 
    This case arose under the Federal Service Labor-Management Relations
 Statute, 5 U.S.C. 7101, et seq. (herein called the Statute).  It is
 based on a Second Amended Charge filed on August 22, 1985 by American
 Federation of Government Employees, AFL-CIO, Local 1367 (herein called
 the Union) against United States Department of Defense, Department of
 the Air Force Headquarters, Air Force Training Center, ATC, Lackland Air
 Force Base, Texas (herein called the Respondent).
 
    The Complaint alleged, in substance, that (a) on or about June 28,
 1984, and continuing thereafter, Respondent refused to bargain in good
 faith with the Union over procedures to be observed and appropriate
 arrangements for adversely affected employees in implementing Air Force
 Regulation 40-452, Performance Management Program, (b) on or about July
 1, 1984 and continuing thereafter, Repsondent refused to bargain in good
 faith with the Union by unilaterally implementing the aforesaid Air
 Force Regulation 40-452 without providing the Union adequate notice of,
 or an opportunity, to negotiate over procedures to be observed in
 implementing the regulation and appropriate arrangements for adversely
 affected employees -- all in violation of Section 7116(a)(1) and (5) of
 the Statute.
 
    Repsondent's Answer, dated September 4, 1985, denied the aforesaid
 allegations of the Complaint, as well as the commission of any unfair
 labor practices.
 
    All parties were represented at the hearing.  Each was afforded full
 opportunity to be heard, to adduce evidence, and to examine as well as
 cross-examine witnesses.  Thereafter, briefs were filed which have been
 duly considered.  /1/
 
    Upon the entire record herein, from my observation of the witnesses
 and their demeanor, and from all of the testimony and evidence adduced
 at the hearing, I make the following findings and conclusions:
 
                             Findings of Fact
 
    1.  At all times material herein the Union has been, and still is,
 the exclusive bargaining representative of all permanent, full time, Air
 Force civilian employees paid from appropriated funds assigned to
 Lackland Air Force Base, Texas with specified exclusions from said unit.
 
    2.  At all times material herein the Union and Respondent have been
 parties to a collective bargaining agreement covering the aforesaid unit
 which is composed of approximately 2300 employees.
 
    3(a).  Between 1972 and June, 1985, Frank G. Suarez was president of
 the Union.  At all times material herein Julius Garcia was first
 vice-president of the Union.
 
    (b) At all times material herein Chalres Shinn was Chief of the
 Respondent's Civilian Personnel Office, Ramon Lopez was Respondent's
 Chief of Labor Relations, and Anthony Fuentes was Respondent's Chief of
 Employee Relations.
 
    4.  Record facts disclose that between May, 1983 and June, 1984
 Respondent changed its employment conditions on various occasions;  that
 it was customary for management to forward the changes with a covering
 memo signed by Lopez;  and that bargaining thereon would normally occur
 three weeks from the time the Union made a request to bargain.
 
    5.  On June 4, 1984 /2/ Lopez hand delivered to Suarez a letter which
 informed the Union of a forthcoming new regulation (AFR 40-452) to be
 implemented on July 1, and an attached draft of the said regulation.
 Lopez explained that someone would come and explain the regulation and
 its changes as well as provide more information to the Union.
 Thereafter, on June 8, Suarez gave the regulation to Garcia for the
 latter to review and decide if it required negotiations with management.
 
    6.  The draft of AFR 40-452, entitled "Performance Management
 Program", established a program that integrates certain performance,
 pay, and recognition processes which is applicable to employees in the
 Lackland unit.  As such, it implements requirements of 5 CFR, Part 430
 (performance appraisal), Part 540 (merit pay), Part 531 and 532 (within
 grade increase - WGI), Part 305 (probation) and Part 451 (performance
 awards).  It also implements FPM, Supplement 335-1, pertaining to the
 use of performance appraisals in promotion.
 
    7.  The said regulation, which comprises nearly 200 pages, contains
 17 changes.  They are as follows:  /3/
 
          "SUMMARY OF CHANGES"
 
          "This publication implements the performance management concept
       (para 1-2) and the pay-for-performance concept (para 1-3);
       explains differences in employee coverage (para 1-6b and atch 1);
       implements a single appraisal form (para 2-1);  establishes an
       initial 90-day appraisal period (para 2-2);  sets up two annual
       appraisal cycles (para 2-3);  adds new requirements regarding
       supervisory safety and health responsibilities (para 2-9c);  adds
       new requirements on critical performance elements (para 2-10);
       adds additional requirements regarding the quality control review
       (para 2-13);  explains how ratings on work behavior must relate to
       ratings on performance (para 2-19);  explains the requirements to
       appraise work behavior and how the rating is used (paras 2-17
       through 2-30);  clarifies the separate probation required for new
       supervisors and managers (para 4-2);  implements new guidance on
       dealing with performance problems (chap 5);  establishes a new
       cash award for GM employees (para 7-4);  authorizes a quality step
       increase only for superior ratings (para 7-5a);  establishes a 1
       percent of salary minimum for the SSPA and MPCA (fig 7-1, table
       4);  and, changes recordkeeping requirements (chap 12)."
 
    8.  At the request of Lopez, management official Fuentes came to the
 Union office on June 13 to conduct a briefing of AFR 40-452.  The
 official stated that it was necessary to implement the new regulation on
 July 1.  Although Garcia inquired why it had to be done so quickly,
 Fuentes gave no explanation.  An overview of the program and its
 philosophy was covered, and Fuentes called the Union's attention to the
 most important changes concerning the Union.  The most important change,
 as mentioned by the management representative, dealt with a new system
 which combined the old Job Performance Appraisal System (JPAS) and the
 Civilian Potentail Appraisal System (CPAS).  These were no longer
 separate and district appraisal processes, and they had to be related to
 one another.  There would be one appraisal during the rating year
 instead of two separate appraisals.  /4/
 
    9.  At the briefing on June 13 Fuentes asked the Union if there were
 any questions re the new regulation.  Garcia asked what other changes
 were introduced by the new program.  Fuentes stated he couldn't answer
 in detail and that he was going to a training session that day but would
 get back to the Union representatives.  Garcia requested that he be
 given the various Air Force regulations referred to in AFR 40-452, and
 Fuentes replied they were in the publication library at Lackland.
 Fuentes asked that the Union submit its proposals re the proposed new
 regulation.  Whereupon Garcia stated the briefing lacked specificity and
 the Union couldn't submit proposals until the briefing was completed;
 that the Union could not submit the proposals until Fuentes finished his
 briefing and pointed out all the changes from its past regulation.
 Whereupon Fuentes said he would get back to the Union.  /5/
 
    10.  The record reflects that on June 14 Ms. Tommie Holmes, an
 employee relations specialist, telephoned Garcia.  She stated that
 Fuentes asked her to contact Garcia and tell the latter to send Fuentes
 the Union's proposals in writing.  Garcia replied that he would try to
 get them ready.
 
    11.  Garcia attempted to review the regulations mentioned in AFR
 40-452 by going to the library but they were not available.  The said
 regulations were available at the Civilian Personnel Office, but Garcia
 was advised he could review them only during duty hours and could not
 have copies thereof.
 
    12.  Garcia testified, and I find, that on June 28 he went to see
 Fuentes at the latter's office and asked for copies of the Federal
 Personnel Manual.  He mentioned that they were lengthy and did not have
 time to review them.  The request was denied.  When Garcia reminded
 Fuentes that the latter had not returned to finish the briefing, the
 management official stated that, upon adivce of Lopez, there would be no
 further discussion with the Union on this matter;  that Ms. Holmes at
 the Civilian Personnel Office had contacted the Union and requested
 proposals and there was adequate time to submit same.  In reply thereto,
 Garcia said that Fuentes knew the Union was dealing with him and Lopez.
 The Union official then said he would submit proposals the next day
 based on the information had by the Union.  Fuentes then told Garcia to
 "do what you want to, but the agency will not entertain anything, or
 discuss anything." /6/
 
    13.  After the aforesaid meeting Garcia advised Suarez what had been
 said thereat.  Upon advice from Suarez, the Union president conferred
 with Al Kia, president of AFGE, Local 3782 which was negotiating with
 Air Force agency SARPMA /7/ over AFR 40-452.  Garcia testified he copied
 some of the proposals sumbitted by Kia on two yellow pages.
 
    14.  On June 29 Garcia gave Fuentes a letter, dated June 28, written
 by Suarez and addressed to the Commander of Lackland Air Force Base -
 attention:  Charles Shinn.  This letter from the Union requested
 negotiation re the impact and implementation of AFR 40-452, as well as
 the postponement of its implementation until after the parties finished
 meeting and completed an agreement.  It was suggested therein that the
 parties meet on July 2.  Garcia testified that he also delivered the
 proposals of the Union, which were handwritten on the two yellow pages,
 to Fuentes on June 29.  /8/ Upon receiving the request to negotiate as
 set forth in Suarez's letter, Fuentes informed Garcia it was late for
 submission (being late Friday afternoon) since the regulation would be
 implemented on Sunday, July 1.
 
    15.  Respondent did not reply to Suarez's letter of June 28 wherein
 the Union requested negotiations re the impact and implementation of AFR
 40-452.  The regulation was implemented on July 1.
 
    16.  On July 19 Garcia gave a written list of 12 proposals by the
 Union, in respect to AFR 40-452, to the secretary of General Smith, the
 Commander at the Base.  /9/ These proposals, which were addressed to the
 Commander, were a typewritten copy (with a few changes) of the proposals
 made by Kia on behalf of Local 3782, and which Garcia testified he gave
 to Fuentes on June 29 on handwritten pages.
 
    17.  No bargaining has taken place with respect to the said
 regulation.
 
    18.  In addition to the change resulting from AFR 40-452, whereby
 employees would no longer receive two separate appraisals during the
 rating year, but would receive a combined JPAS & CPAS appraisal, two
 other signigicant changes affecting employees were made by the new
 regulation:  (a) an initial appraisal period was established, so that
 employees must be appraised at the end of, but no earlier than, 90 days;
  (b) the critical elements, which formed the basis for the appraisal and
 rating of employees, were changed in the new regulation.
 
                                Conclusions
 
    It is contended by General Counsel that Respondent violated Section
 7116(a)(1) and (5) of the Statute.  It predictes this conclusion on the
 further contentions:  (a) that AFR 40-452 was implemented unilaterally
 without affording the Union adequate notice and a reasonable opportunity
 to request bargaining on the impact and implementation of the
 regulation;  (b) that management refused to bargain thereon.
 
    Case law in the public sector has established that while an agency
 may exercise certain management rights, purusant to Section 7106 of the
 Statute, an obligation is imposed upon the agency when it changes
 conditions of employment in exercising such right.  In such an instance
 a union must be provided with adeuqate notice of the agency's decision
 and afforded an opportunity to bargain on the impact and implementation
 of any such change.  Department of the Treasury, U.S. Customs Service,
 Region 1 (Boston, Mass.), 16 FLRA No. 97;  U.S. Government Printing
 Office, 13 FLRA No. 39.
 
    There are, however, correlative obligations imposed upon a union
 which has been notified of any intended changes by an agency.  A union
 is obliged, in such event, to make a timely request to bargain or seek
 more time to consider a change.  Where the union's request is submitted
 at the eleventh hour, albeit before the change, it has been held to be
 untimely.  See Customs Service, Region 1 (Boston, Mass.), supra;  Social
 Security Administration, Bureau of Hearings and Appeals, A/SLMR No. 960,
 8 A/SLMR 33.  Further, a request to bargain after the change is
 implemented has been held untimely and no refusal to bargain will be
 found.  General Services Administration, 15 FLRA No. 6.
 
    Turning to the case at bar, the General Counsel avers that the notice
 of the proposed implementation of AFR 40-452 was not sufficiently
 specific or definitive re the contemplated changes.  In support of such
 averment, it is argued by General Counsel that briefing were required to
 elaborate or explain the new regulation and its changes.
 
    It is true that notice of a decision to change working conditions
 must be specific, and that a passing reference to a contemplated change
 will not be deemed adequate notice.  Department of the Army, Harry
 Diamond Laboratories, Adelphi, Maryland, 9 FLRA No. 66;  U.S. Department
 of the Air Force, Air Force Systems Command et al., 5 FLRA No. 88;
 Department of the Treasury, Internal Revenue Service, Indianapolis,
 Indiana, A/SLMR No. 909, 7 A/SLMR 844.  However, in the case at bar I am
 persuaded that the new regulation itself (AFR 40-452), which was given
 to the Union on June 4, was specific as to the contemplated charges.
 The summary of changes - as set forth in G.C. Exhibit No. 3 and
 Respondent's Exhibit No. 4 (following Chapter 12) - specified the 17
 proposed changes in the Performance Management Program.  In each
 instance the changed condition of employment was specifically mentioned,
 i.e. establishing a 90 day appraisal period, implements a single
 appraisal form, etc.  While management did conduct a briefing session in
 regard thereto, and indicated an intention to resume briefings, I am not
 convinced that such was obligatory on its part.  Further, the fact that
 discussion ensued re the various changes does not militate against
 concluding that the notice of the changes, and their specifity, were
 sufficient.  I am satisfied that the purported changes as given to the
 Union were sufficiently detailed to appraise the bargaining
 representative of their substance;  that such notification thereof was
 adequate to allow the Union to make proposals to management concerning
 same.
 
    With respect to the time frame allotted to the Union to request
 bargaining and submit proposals based on the proposed new regulation, I
 conclude Respondent has fulfilled its obligation in that regard.  Since
 AFR 40-452 was given to the Union on June 4 with an implementation date
 of July 1, the Union had 4 weeks advance notice of the contemplated
 changes.  Past decisions by the Authority reveal that substantially less
 notice by an agency has been deemed adequate.  Thus, in Customs Service,
 Region 1 (Boston, Mass.), supra, 10 days notice of a changed procedure,
 requiring inspectors to make a phone call to management on completing an
 assignment, was considered sufficient notification.  Also, a 4 day
 notice of a reduction-in-force of employees was held adequate.  United
 States Department of Defense, Department of the Army, Headquarters, Fort
 Sam Houston, Texas, 8 FLRA No. 112.
 
    It is also concluded by the undersigned that the Union was afforded a
 reasonable opportunity to negotiate the changes which were to be
 implemented on July 1.  When Garcia received the proposed regulation on
 June 4 there was also attached thereto a letter from Lopez asking the
 Union representative to contact him re same.  On June 13, during the
 briefing conducted by Fuentes, the latter asked Garcia to send
 management the Union's proposals re AFR 40-452.  Again, on June 14
 management representative Tommie Holmes called Garcia and requested he
 submit the Union's prposals.  The request for negotiation, which was set
 forth in a letter from Suarez to the Commander was given to Fuentes on
 June 29.  This was the first time the Union presented its request and it
 was made on a Friday afternnon just before the proposed implementation
 of the new regulation on Sunday, July 1.  In accord with the cases
 heretofore cited I conclude that the Union was afforded a reasonable
 time and opportunity to request bargaining and submit its proposals re
 the new regulations.  While it did ultimately submit such request, this
 was done at the eleventh hour.  Thus, the Respondent was justified in so
 advising Garcia on June 29 in view of its planned implementation on July
 1.  The refusal to negotiate at this late date on the impact and
 implementation of AFR 40-452 was not, in line with past decisional law,
 a refusal to bargain in violation of 7116(a)(5) of the Statute.  See
 Internal Revenue Service (District, Region, National Office Unit), 14
 FLRA No. 92.
 
    Moreover, the proposals given by Garcia to General Smith's office on
 July 19 will not support a refusal to bargain allegations even though
 unanswered by Respondent.  /10/ A request to bargain made after changes
 are implemented must be considered untimely, and no refusal to bargain
 by Respondent will be found thereafter.  Department of the Army, U.S.
 Military Academy, West Point, New York, A/SLMR No. 1138, 8 A/SLMR 1163.
 
    Accordingly, the undersigned concludes that Respondent did not refuse
 to bargain with the Union re the implementation of AFR 40-452 in
 violation of Section 7116(a)(1) and (5) of the Statute.
 
    It is therefore recommended that the Authority issue the following
 Order:
 
                                   ORDER
 
    It is hereby Ordered that the Complaint in Case No. 6-CA-40408 be,
 and the same hereby is, dismissed.
 
                                       WILLIAM NAIMARK
                                       Adminstrative Law Judge
 
    Dated:  March 13, 1986
    Washington, D.C.
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (1) Subsequent to the hearing the Respondent filed with the
 undersigned a Motion to Strike Portions of General Counsel's
 Post-Hearing Brief.  In its brief the General Counsel cited Department
 of the Navy, Naval Ordinance Station, 4 FLRA 760.  Respondent, asserting
 that General Counsel misinterpreted the cited decision and its ratio
 decidendi, contends that the General Counsel omitted certain language
 when it quoted Judge Mason, the author thereof.  The Motion is denied.
 Quotations from, or portions of, a cited case as set forth by a party in
 a brief are part of Counsel's argument.  They are not factual in nature,
 nor may they be deemed an attempt to adduce post-hearing evidence.  The
 undersigned can determine, upon reviewing the cited case, its
 applicability herein.
 
    (2) Unless otherwise inidcated, all dates hereinafter mentioned occur
 in 1984.
 
    (3) The changes in performance management, as contained in AFR
 40-452, appear in G.C. Exhibit No. 3 on the page following Chapter 12-3
 and in Respondent's Exhibit No. 4 on pages 57-58.
 
    (4) Garcia testified that Fuentes stated management changed its
 position re the grievability of performance ratings;  that whereas job
 performance was deemed norgrievable in the past, under this regulation
 it was grievable.  Fuentes denied referring to any such change, and he
 testified job appraisals were always considered grievable;  that the new
 regulations made no change.  While Article XXIII of the collective
 bargaining agreement, which is entitled "Negotiated Grievance Procedure,
 purportedly covers this matter, it is clearly a matter of contract
 interpretation and no change in this respect appears in AFR 40-452.
 
    (5) Fuentes denied giving any indication to Garcia that he would come
 back and finish briefing.  His testimony, however, reflects that he gave
 the impression he would come back if the Union called and needed
 explanation.  Suarez, who was present at the briefing, also testified
 that Fuentes stated on June 13 he had to leave for training for the new
 regulation.  Further, that Fuentes was making arrangements to come back
 and talk over AFR 40-452 again with the Union.  I credit the versions of
 what occurred at the briefings as testified to by Garcia and Suarez.
 
    (6) This conversation, as testified to by Garcia, was undenied by
 Fuentes.
 
    (7) San Antonio Real Property Maintenance Association.
 
    (8) Fuentes testified that Garcia did not give him anything but the
 letter (G.C. Exhibit No. 4).  In view of the ultimate disposition of the
 central issue herein, the undersigned concludes it is unnecessary to
 reslove credibility as to the submission of the handwritten proposals.
 
    (9) The letter containing these proposals, and addressed to the
 Commander, was dated June 29.  Garcia's testimony reflects that the
 Union so dated the