25:0541(41)CA - Air Force, HQ, Air Force Logistics Command, Wright-Patterson AFB, OH and AFGE Council 214 -- 1987 FLRAdec CA



[ v25 p541 ]
25:0541(41)CA
The decision of the Authority follows:


 25 FLRA No. 41
 
 DEPARTMENT OF THE AIR FORCE
 HEADQUARTERS, AIR FORCE LOGISTICS
 COMMAND, WRIGHT-PATTERSON AIR FORCE
 BASE, OHIO
 Respondent
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 COUNCIL 214, AFL-CIO
 Charging Party
 
                                            Case No. 5-CA-50061
 
                            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
 Department of the Air Force Headquarters, Air Force Logistics Command,
 Wright-Patterson Air Force Base, Ohio (the Respondent).  The complaint
 alleges that the Respondent violated section 7116(a)(1) and (5) of the
 Federal Service Labor-Management Relations Statute (the Statute) by
 unilaterally implementing a moratorium on the permanent promotion of
 certain General Schedule-332 (GS-332) unit employees without providing
 the American Federation of Government Employees, Council 214, AFL-CIO
 (the Union) advance notice of the moratorium, and by refusing to bargain
 on its impact and implementation.  For the reasons stated below, we find
 that the respondent violated section 7116(a)(1) and (5) as alleged.
 
                                II.  Facts
 
    By letter dated August 9, 1984, the Respondent notified the Union
 that a new Factor Evaluation System classification standard for GS-332
 Computer Operators would be implemented.  The letter stated that
 approximately 900 positions subject to application of the new standard
 had been reviewed and that it was anticipated that grades of 500
 positions could be affected.  The letter also stated that, prior to the
 implementation of the new standard, management had exercised its option
 not to initiate permanent personnel actions in the GS-332 series for
 grades 9 and 11.  On receipt of the letter, the Union representatives
 requested a briefing with management.  On August 16 and 20, a
 representative of the Respondent met with the Union representative and
 informed him that while the classification standard was being
 implemented, GS-332 Computer Operators would receive temporary
 promotions into the GS-9 and 11 positions, not permanent promotions.
 The Union representative was also imformed that while management might
 bargain on the impact and implementation of the new classification
 standard, it did not intend to bargain on the issue of temporary
 promotions.  On August 24, the Union Representative sent the Respondent
 letters requesting bargaining over the impact and implementation of both
 matters and submitting various proposals.  The Respondent bargained with
 the Union on the impact and implementation of the moratorium on
 permanent promotions.  As to this latter matter, the Respondent stated
 by letter of September 5 that it discerned no charge which gave rise to
 a bargaining obligation.
 
    The parties stipulated that the moratorium was in effect from July
 25, 1984 to December 24, 1984.  During the moratorium, six series GS-332
 unit employees at the GS-9 level received temporary promotions.  The
 record does not disclose why these employees received temporary
 promotions.
 
                 III.  Administrative Law Judge's Decision
 
    The Judge found that the Respondent violated section 7116(a)(1) and
 (5) of the Statute by changing a condition of employment when it
 implemented a moratorium on permanent promotions of GS-332 Computer
 Operators without bargaining on the impact and implementation of the
 change.  The Judge inferred that the temporary promotions given to the
 six GS-332-9 Computer Operators resulted from the application of the
 Respondent's moratorium on permanent promotions.  The judge found that
 the actual impact and the reasonably foreseeable impact of the
 moratorium on employees was more than de minimis.  In this regard he
 found that the decision to implement the moratorium could have affected
 approximately 500 positions, and that six unit employees actually were
 adversely affected by the denial of permanent promotions.  He further
 found that the Union did not waive its bargaining rights either by the
 parties' current negotiated agreement or by its failure to renew a
 bargaining request after the Respondent refused to bargain.  Finally, he
 rejected the Respondent's argument that the complaint should be
 dismissed because the proposals submitted by the Union were
 non-negotiable.  In this respect he noted that the Respondent's refusal
 on September 5 to negotiate made no reference to the negotiability of
 the proposals.
 
                       IV.  Positions of the Parties
 
    In its exceptions, the Respondent contends that the General Counsel
 failed to meet its burden of proving the allegations of the complaint by
 a preponderance of the evidence.  The Respondent argues that the Judge
 erred in inferring that promotions are normally given on a permanent
 basis to GS-332 Computer Operators, and in finding that six Computer
 Operators were temporarily promoted as a result of the moratorium.
 Futhermore, the Respondent disputes the Judge's finding that the impact
 of the moratorium was more than de minimis and that the change had a
 resaonably foreseeable impact on approximately 500 GS-332 positions.
 The Respondent contends that the Judge took this reference out of
 context as that number related only to the number of positions that
 could have had their present grade levels affected by the new
 classification standard, and not to the number of temporary promotions
 which could have occurred as a result of the moratorium.  The Respondent
 also argues, in effect, that the Union waived its bargaining rights
 because the parties' negotiated agreement provided procedures for
 utilizing temporary promotions.  Finally, the Respondent contends that
 it had no obligation to bargain because the Union's proposals, submitted
 with its request to bargain, were nonnegotiable.
 
    Neither the General Council nor the Union filed exceptions to the
 Judge's Decision or an opposition to the Respondent's exceptions in this
 case.
 
                               V.  Analysis
 
    In Department of Health and Human Services, Social Security
 Administration, 24 FLRA No. 42 (1986), we reassessed and modified the
 deminimis standard previously used to identify those changes in
 conditions of employment of bargaining unit employees which require
 bargaining.  We stated that in order to determine whether a change
 requires bargaining, we will carefully examine the pertinent facts and
 circumstances presented in each case.  We noted, among other things,
 that principal emphasis would be placed on such general areas of
 consideration as the nature and extent of the effect or reasonably
 foreseeable effect of the change on equitable considerations would also
 be taken into account in balancing the various interests involved.
 Applying the principles of Social Security Administration to this case,
 we find that the moratorium constituted a change in conditions of
 employment of unit employees and that the change gave rise to a
 bargaining obligation.  Accordingly we find that the Respondent's
 actions constituted an unfair labor practice.
 
    As to whether the moratorium constituted a change in conditions of
 employment, the record supports the Judge's finding that although
 temporary promotions are used by the Respondent in some situations,
 promotions are normally given on a permanent basis.  Therefore, the
 Respondent's action in deciding not to initiate permanent promotions in
 the GS-332 series for grades 9 and 11 changed existing conditions of
 employment for unit employees for the duration of the moratorium.
 
    As to whether the change gave rise to a duty to bargain, based on our
 decision in Social Securtiy Administration, we have considered the
 relevant facts and circumstances, placing prinicpal emphasis on the
 nature and extent of the effect and reasonably foreseeable effect of the
 change on conditions of employment.  The nature and extent of the
 reasonably foreseeable effect of the change in conditions of employment
 was such as to give rise to a bargaining obligation.  At the time the
 Respondent announced the moratorium on permanent promotions, it was
 reasonably foreseeable that some employees who would ordinarily have
 received permanent promotions would not receive them during the
 unspecified duration of the moratorium and would only be eligible for
 temporary instead of permanently promoted would be by regulation
 ineligible for grade and pay retention in the event of an involuntary
 downgrade.  This fact and the obvious differences in the nature of
 temporary and permanent promotions lead us to conclude that the nature
 and extent of the reasonably foreseeable effect of the change on
 conditions of employment of unit employees gave rise to bargaining
 obligation in this instance.
 
    We do not rely, as did the Judge, on the fact that six employees
 received temporary promotions during the period of the moratorium.  This
 consideration has nothing to do with the effect or reasonably
 foreseeable effect of the Respondent's change in conditions of
 employment evident to the parties at the time the change was proposed
 and implemented.  Moreover, as the Judge acknowleged, the record is
 silent as to the specific reason why these employees received temporary
 promotions.  We do not find a sufficient basis in the record for
 finding, as did the Judge, that the six temporary promotions resulted
 from the application of the Respondent's moratorium on permanent
 promotions.  The record demonstrates that the Respondent used temporary
 promotions in filling positions before implementation of the moratorium,
 and there is no evidence to show that Respondent's use of temporary
 promotions for the six employees was related to the moratorium.
 
    We also reject the Judge's finding as to the number of positions
 which could be affected by the moratorium.  The Judge stated that
 "Respondent's initial letter to the Union indicating it would not
 "initiate permanent personnel actions in the GS-332 series . . ." stated
 that the "grades of approximately 500 positions may be affected." The
 reference to the 500 positions was not to the number of employees who
 might be affected by a moratorium on permanent promotions, but rather a
 reference to the number of positions that could be affected by the
 application of a new position classification standard (a matter over
 which the parties bargained.) As we stated in Social Security
 Administration, the number of employees involved in a change is not a
 controlling consideration in determining whether a change gives rise to
 a duty to bargain.  The fact that fewer than 500 positions may have been
 affected does not alter our conclusion that in the circumstances of this
 case the Respondent had an obligation to bargain when it announced the
 moratorium.
 
    Finally, in agreement with the Judge and for the reasons stated by
 him, we reject the Respondent's arguments that the Union waived its
 bargaining rights and that the Respondent had no bargaining obligation
 becaise the proposals submitted by the Union were nonnegotiable.
 
                              VI.  Conclusion
 
    Pursuant to section 2423 of the Authority's Rules and Regulations and
 section 7118 of the Statute, we have reviewed the rulings of the Judge
 made at the hearing, find that no prejudicual error was committed, and
 thus affirm those rulings.  We have considered the Judge's Decision and
 the entire record, including the parties' contentions, and adopt the
 Judge's findings and conclusions only to the extent consistent with our
 decision.  We conclude that the Respondent committed an unfair labor
 practice in this case.  Therefore, we shall issue the following
 appropriate remedial order.
 
                                   ORDER
 
    Prusuant 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 Department of the Air Force Headquarters, Air
 Force Logistics Command, Wright-Patterson Air Force Base, Ohio shall:
 
    1.  Cease and desist from:
 
    (a) Implementing a moratorium on the permanent promotion of Grade 9
 and 11 unit employees in the Computer Operator, GS-332 series, or any
 other unit employees, while applying a new classification standard,
 without first notifying the American Federation of Government Employees,
 Council 214, AFL-CIO, the employees' exclusive representative, and
 affording it the opportunity to bargain concerning the procedures which
 management will observe in effecting such change and appropriate
 arrangements for employees adversely affected by such change.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Notify the American Federation of Government Employees, Council
 214, AFL-CIO of any future moratorium on permanent promotions while
 applying a new classification standard, and prior to implementation,
 afford it an apportunity to bargain concerning the procedures which
 management will observe in effecting such change and appropriate
 arrangements for employees adversely affected by such change.
 
    (b) Post at all of its facilites where unit employees are located
 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 of the Air Force Logistics Command,
 Wright-Patterson Air Force Base, Ohio and shall be posted and maintained
 for 60 consecutive days thereafter, in conspicuous places, including all
 bulletin boards and other places where notices to employees are
 customarily posted.  Reasonable steps shall be taken to 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 V, Federal Labor
 Regulations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply with this order.
 
    Issued, Washington, D. C., February 4, 1987.
 
                                       Jerry E. 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 implement a moratorium on the permanent promotion of
 Grade 9 and 11 unit employees in the Computer Operator, GS-332 series,
 or any other unit employees, while applying a new classification
 standard, without first notifying the American Federation of Government
 Employees, Council 214, AFL-CIO, the exclusive representative of our
 employees, and affording it the opportunity to bargain concerning the
 procedures which management will observe in affecting such change and
 appropriate arrangements for employees adversely affected by such
 change.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-management Relations Statute.
 
    WE WILL notify the American Federation of Government Employees,
 Council 214, AFL-CIO of any future moratorium on permanent promotions
 while applying a new classification standard, and prior to
 implementation, afford it an opportunity to bargain concerning the
 procedures which management will observe in effecting such change and
 appropriate arrangements for employees adversely affected by such
 change.
                                       Air Force Logistics Command,
                                       Wright-Patterson AFB, Ohio
 
    Dated . . . Commander
 
    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 V, Federal Labor Relations Authority, whose address is:
  175 W. Jackson Boulevard, Suite 1359-A, Chicago, Illinois 60606, and
 whose telephone number is:  (312) 353-6306.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 5-CA-50061
 
 DEPARTMENT OF THE AIR FORCE HEADQUARTERS, 
 AIR FORCE LOGISTICS COMMAND, 
 WRIGHT-PATTERSON AIR FORCE BASE, OHIO
    Respondent
 
                                    and
 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, COUNCIL 214, AFL0-CIO
    Charging Party
 
    Major W. Kirk Underwood
    For the Respondent
 
    Paul Palacio
    For the Charging Party
 
    Judith A. Ramey, Esq.
    For the General Counsel
 
    Before:  SALVATORE J. ARRIGO
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This case arose 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.
 
    Upon an unfair labor practice charge filed by the American Federation
 of Government Employees, Council 214, AFL-CIO (herein referred to as the
 Union) against the Department of the Air Force Headquarters, Air Force
 Logistics Command, Wright-Patterson Air Force Base, Ohio, (herein
 referred to as Respondent), the General Counsel of the Authority, by the
 Regional Director for Region V, issued a Complaint and Notice of Hearing
 alleging Respondent violated the Statute when it unilaterally
 implemented a motatorium on the permanent promotion of certain unit
 employee positions and refused to bargain with the Union on the impact
 and implementation of the moratorium.
 
    A hearing on the Complaint was conducted in Dayton, Ohio at which all
 parties were represented and afforded full opportunity to adduce
 evidence, call, examine and cross-examine witnesses and argue orally.
 Briefs were filed by Respondent and the General Counsel and have been
 carefully considered.
 
    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, conclusions of law and
 recommendations.
 
    Since 1978 the American Federation of Government Employees, AFL-CIO,
 through its agent Council 214, has been the exclusive collective
 bargaining representative of a consolidated unit of approximately
 70-75,000 of Respondent's employees including various Computer
 Operators, series GS-332, at pay grades GS-9 and 11.
 
    By letter dated August 9, 1984 Respondent notified Council 214
 President Paul Palacio that a new Factor Evaluation System
 classification standard for Computer Operator GS-332 would be
 implemented.  The letter revealed that approximately 900 positions
 subject to application of the new standard had been reviewed and that
 grades of approximately 500 positions may be affected.  The letter went
 on to state:  "preliminary to implementation, management has exercised
 its option not to initiate permanent personnel actions in the GS-332
 series for grades 11 and 12."
 
    Upon receipt of Respondent's August 9 letter Council President
 Palacio requested a briefing with management.  Meetings between Palacio
 and Respondent's Labor Relations Officer Mick Wells were held on August
 16 and 20.  During these meetings Wells informed Palacio that while the
 classification standards were in the process of being implemented,
 GS-332 Computer Operators would receive temporary promotions into the
 GS-9 and 11 positions, not permanent promotions.  Palacio was also
 imformed that while management might bargain on the impact and
 implementation of the classification standards, it did not intend to
 bargain on the issue of temporary promotions.  /1/
 
    In order to keep the two issues separate and proceed with
 negotiations to whatever extent management would agree, on August 24,
 1984 Palacio sent Respondent two separate letters in response to the
 August 9 announcement.
 
    The first letter made a demand to bargain over the impact and
 implementation of the new classification standard and attached
 negotiation proposals on this subject.  The second letter was a specific
 demand to bargain over the impact and implementation over management's
 decision to temporarily promote bargaining unit employees in the GS-9
 and 11 grades.  That letter also attached negotiation proposals.
 
    With regard to the issue of temporary promotions, on September 5,
 1984 Wells sent Palacio the following letter:
 
          This responds to your letter of 24 August 1984 wherein you
       demanded to negotiate a management decision "to temporatily
       promote (your) bargaining unit members in the GS-332-9 levels."
 
          "Management has historically and consistently utilized its many
       available options in determining how to fill positions.  The use
       of temporary promotions is among these options.  We, therefore,
       discern no change in personnel policies, practices, or matters
       affecting working conditions which gives rise to bargaining
       obligation.
 
          Please contact me if you have any questions."
 
    The parties engaged in no further communications regarding this
 issue.  However, with regard to Palacio's demand to bargain over impact
 and implementation of the application of the new classification
 standards for the Computer Operator GS-332 position, by letter to the
 Union of September 6, 1984 Respondent agreed to negotiate, stating:
 
          "The application of new OPM classification standards is a
       relatively frequent and recurring requirement.  For this reason,
       we consider it appropriate at this time that we seek an agreement
       applicable to not only the GS-332 issue, but to future
       classification standard applications as well.  The attached
       proposals are offered to your consideration toward this end."
 
    Subsequent negotiations on the application of new position
 classification standards, which did not include the matter of temporary
 promotions, resulting in an agreement executed by the parties on
 Novemeber 8, 1984.
 
    The parties stipulated that the moratorium on permanent promotions in
 the GS-332 series was in effect from July 25, 1984 to December 24, 1984.
  According to Labor Relations Officer Wells, during that period six
 series GS-332 bargaining unit employees at the GS-9 and 11 levels
 received temporary promotions.  While the record is silent as to the
 specific reason why these employees received temporary promotions,
 absent an explanation by Respondent, the repository of such information,
 I infer in the circumstances of the litigation of this case such
 temporary promotions resulted from the application of Respondent's
 moratorium on permanent promotions.
 
    Council President Palacio testified that temporary promotions
 adversely impact on employees in that an employee receiving a temporary
 rather than permanent promotion would have no right to retention of
 grade and pay in the event of a subsequent failure of the assigned
 position to support the grade of the employee.  Palacio further
 testified that no employee temporarily promoted might subsequently
 receive a lower evaluation when first apprased in that job than that
 employee's previous evaluation and, if forced to return to the prior
 grade, the employee would retain that lower appraisal making the
 employee less competitive for a future promotion.
 
    Respondent contends that imposing the moratorium did not change a
 condition of employment requiring bargaining since there existed a past
 practice of using temporary employees in various situations.  However,
 the issue herein concerns not Respondent's right to use temporary
 employees, but centers on management's obligation to bargain on demand
 with the Union on the impact and implementation of its privileged
 decision to effectuate a moratorium on specific permanent promotions in
 the particular circumstances wherein classification standards were being
 changed.  It is clear from the totality of the record that although
 Respondent employs the use of temporary promotions in some situations,
 /2/ promotions are normally given on a permanent basis.  While testimony
 reveals that since October 1982 Respondent temporarily promoted 1700
 bargaining unit employees, the only record evidence of a situation
 similar to that presented herein reveals that sometime in 1983
 Respondent imposed a moratorium on permanent promotions in job series
 2300 during implementation of new job standards for the series.  That
 action occasioned the filing of an unfair labor practice charge, the
 issuance of a complaint and the execution of a settlement agreement.
 Accordingly, I conclude that the moratorium on permanent promotions
 herein did constitute a change in a condition of employment and, absent
 evidence of a waiver on the part of the Union to bargain on the impact
 and implementation of such a moratorium, /3/ I find Respondent's
 contention to be without merit.
 
    Counsel for Respondent also contends its action had, at most, minimal
 impact on bargaining unit employees and accordingly a refusal to bargain
 on the matter would not violate the Statute.  I reject this argument.
 The Authority has held that no obligation to bargain exists where the
 impact of a privileged change is no more than de minimis.  However, in
 making such a determination the Authority will look at bother actual
 impact or the reasonably foreseeable impact of the action on bargaining
 unit employees.  Department of Health and Human Services, Social
 Security Administration, Chicago Region, 15 FLRA No.  174 (1984) and
 U.S. Government Printing Office, 13 FLRA 203 (1983).
 
    Respondent's initial letter to the Union indicating it would not
 "initiate permanent personnel actions in the GS-332 series for grades 11
 and 12," supra, stated that the "grades of approximately 500 positions
 may be affected." Further, as found herein, six bargaining unit
 employees were adversely affected by denying them permanet promotions
 during the six month period the moratorium was in effect.  In my opinion
 both the actual impact and the reasonably foreseeable impact of the
 moratorium resulted in an impact on employees which was more than de
 minimis and accordingly, I conclude Respondent's contention is without
 merit.
 
    Counsel for Respondent also argues that no violation of the Statute
 exists, contending:  (1) The parties had negotiated contractual
 procedures concering the issue herein;  (2) None of the bargaining
 proposals submitted by the Union with its bargaining demand were
 negotiable;  (3) The Union failed to request bargaining after being
 "given another opportunity to do so by Respondent's letter of 6
 September 1984;" and (4) Respondent's actions as a whole did not amount
 to bargaining in bad faith.
 
    (1) The negotiated agreement.  Counsel for Respondent suggests that
 the parties negotiated agreement provides procedures to resolve issues
 concerning temporary promotions and therefore no obligation to bargain
 exists.  Counsel relies on Section 13:03 of the parties contract which
 states:  "If competitive selection procedures are required (for
 temporary promotions), they shall be accomplished in accordance with
 applicable rules, regulations, and Article 12 of this agreement."
 Article 12 addresses Merit Promotion matters, but virtually no testimony
 was received at the hearing on the applicability of Article 12 or 13 to
 the situation herein.  In my view the language set forth in the contract
 is not so clear and comprehensive so as to unmistakably govern the
 situation herein and thereby preclude any negotiations on the impact and
 implementation of the freeze in permanent promotions.  Rather, Article
 12 of the agreement is primarily concerned with the selection process
 and related procedures.  Accordingly, I reject Respondent's contention.
 
    (2) The Union's bargaining proposals.  When the Union made its
 request to negotiate on impact and implementation on August 24, 1984 it
 also submitted to Respondent various bargaining proposals.  Counsel for
 Respondent now contends that the proposals were not negotialbe so the
 Complaint should be dismissed.  However, management refused to negotiate
 with the Union for the reasons stated in its letter of September 5,
 supra, which made no reference to the negotiability of the Union's
 proposals.  Proposals frequently change during the bargaining process,
 depending upon a variety of factors, and since no bargaining occurred,
 it is not possible to ascertain at this time what the Union's ultimate
 proposals would have been or indeed, what Respondent might have accepted
 if bargaining commenced.  Accordingly, I find Respondent's argument to
 be without merit.
 
    (3) The Union's failure to repeat its request to bargain.  Counsel
 for Respondent contends that since Counsil President Palacio did not
 renew his request to negotiate on impact and implementation after
 Repondent's refusal of September 5 and, according to the testimony of
 Wells, Palacio dropped certain proposals in the negotiations on the
 GS-332 series without formally withdrawing them, the Union is precluded
 from alleging an unfair labor practice based upon Respondent's September
 5 refusal to bargain.
 
    I find the contention to be without merit.  Counsel for Respondent is
 basically suggesting that a waiver arose from Palacio's failure to renew
 his request to bargain by infering a withdrawl of the Union's demand to
 bargain.  I know of no case in these or similar circumstances which
 supports such a conclusion.  Indeed the theory runs counter to the
 Authority's requirement that a waiver must be clear and unmistakable and
 consciously yielded.  Library of Congress, supra.
 
    (4) Lack of bad faith.  Counsel for Respondent argues that the
 Complaint should be dismissed becaise of Respondent's conduct taken as a
 whole does not reflect "bad faith", alluding specifically to the fact
 that Respondent only once declared that this one issue was not
 bargainable.  However, the facts herein disclose that Wells informed
 Palacio orally during the meetings of August 16 and 20 and again in
 writing on September 5 that Respondent would not bargain with the Union
 on the matter at issue herein.  In any event, Respondent's action was
 taken at its peril and I concluded Respondent's failure and refusal to
 bargain on the impact and promotions constituted a violation of the
 Statute requiring appropriate remedial action.  /4/
 
    In view of the entire foregoing I conclude Respondent violated
 section 7116(a)(1) and (5) of the Statute and recommend the Authority
 issue the following:
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the Department of the Air Force Headquarters, Air
 Force Logistics Command, Wright-Patterson Air Force Base, Ohio shall:
 
    1.  Cease and desist from:
 
          (a) Implementing a moratorium on the permanent promotion of
       grade 9 and 11 unit employees in the Computer Operator, GS-332
       series, or any other unit employees, while applying a new Factor
       Evaluation System classification standard, or any like or related
       classification standard, without first notifying the American
       Federation of Government Employees, Council 214, AFL-CIO, the
       employees' exclusive representative, and affording it the
       opportuntiy to bargain concerning the procedures which management
       will observe in effecting such change and appropriate arrangements
       for employees adversely affected by such change.
 
          (b) In any like of related manner interfering with,
       restraining, or coercing its employees in the exercise of rights
       assured by the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
          (a) Upon request, negotiate with the American Federation of
       Government Employees, Council 214, AFL-CIO, concerning appropriate
       arrangements to be made for employees who have been affected by
       the implementation of a moratorium on the permanent promotion of
       grade 9 and 11 unit employees in the Computer Operator, GS-332
       series, which was in effect from July 25, 1984 to December 24,
       1984.
 
          (b) Upon request, negotiate with the American Federation of
       Government Employees, Council 214, AFL-CIO, concerning the
       procedures which management will observe in any future
       implementation of a new Factor Evaluation System classification
       standard, or any like or related program, and appropriate
       arrangements for employees affected by such change.
 
          (c) Post at all its facilities where unit employees are located
       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 an appropriate official and shall be
       posted and maintained for 60 consecutive days thereafter in
       conspicuous places, including all bulletin boards and other places
       where notices to employees are customarily posted.  Reasonable
       steps shall be taken to ensure that said Notices are not altered,
       defaced, or covered by any other material.
 
          (d) Pursuant to section 2423.30 of the Federal Labor Relations
       Authority's Rules and Regulations, notify the Regional Director,
       Region V, Federal Labor Relations Authority 175 W. Jackson Blvd.,
       Suite 1359-A, Chicago, Illinois 60606, in writing, within 30 days
       from the date of this Order, as to what steps have been taken to
       comply herewith.
 
                                       SALVATORE J. ARRIGO
                                       Administrative Law Judge
 
    Dated:  July 25, 1985
    Washington, D.C.
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) No information was given Palacio concerning the anticipated
 length of the moratorium on permanent promotions.
 
    (2) Respondent offered testimony that "staffing moratoriums" in the
 past were occasioned when a contracting out potential was recognized in
 a function, the implementation of classification standard changes that
 would downgrade positions, or the implementation of reorganizations or
 reductions in force that would have a downward impact on grade levels.
 However, the testimony was conclusionary and did not indicate the
 specific nature of the imposition of a moratorium on permanent
 promotions and the extent if any, of temporary promotions used during
 the particular situation.
 
    (3) See Library of Congress, 9 FLRA 421 (1982).
 
    (4) Counsel for the General Counsel urges, as part of the remedy,
 Respondent be required to bargain with the Union on the matter and apply
 retroactively, as appropriate, the result of any such bargaining.  The
 request for retroactive application is denied.  The moratorium on
 permanent promotions ceased after six months and in the circumstances
 herein I conclude this remedy is not appropriate.  See Internal Revenue
 Service, 16 FLRA No. 110 (1984).
 
 
 
 
 
 
                                 APPENDIX
 
                          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 STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT implement a