25:0579(44)CA - Air Force, Griffiss AFB, Rome, NY and AFGE Local 2612 -- 1987 FLRAdec CA



[ v25 p579 ]
25:0579(44)CA
The decision of the Authority follows:


 25 FLRA No. 44
 
 DEPARTMENT OF THE AIR FORCE, GRIFFISS 
 AIR FORCE BASE, ROME, NEW YORD
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 2612, AFL-CIO
 Charging Party
 
                                            Case No. 1-CA-50405
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above entitled proceeding, finding that the Respondent had engaged in
 certain unfair labor practices as alleged in the complaint and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  Thereafter, the Respondent filed exceptions
 to the Judge's Decision, and the General Counsel filed an opposition.
 
    Pursuant to section 2423.29 of the our Rules and Regulations and
 section 7118 of the Federal Service Labor-Management Regulations Statute
 (the Statute), we have reviewed the rulings of the Judge made at the
 hearing and find that no prejudicial error was committed.  The rulings
 are affirmed.  Upon consideration of the Judge's Decision, the
 exceptions, opposition, and the entire record, we adopt the Judge's
 findings, conclusion and recommended order.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Statute, we
 order that the Department of the Air Force, Griffiss Air Force Base, New
 York:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to reopen contract negotiations and
       negotiate in good faith with the American Federation of Government
       Employees, AFL-CIO, the exclusive representative of its employees,
       with respect to conditions of employment relating to negotiations
       for a new collective bargaining agreement.
 
          (b) In any like or related manner, interfering with,
       restraining, or coercing employees in the exercise of their rights
       assured by the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute.
 
          (a) Upon request of the American Federation of Government
       Employees, Local 2612, AFL-CIO, the exclusive representative of
       its employees, reopen contract negotiations and bargain with
       respect to conditions of employment relating to subjects included
       in the parties' original proposals for a new collective bargaining
       agreement.
 
          (c) Post at its facilities copies of the attached Notice marked
       "Appendix" on forms to be furnished by the Authority.  Upon
       receipt of such forms, they shall be signed by the Commander,
       Griffiss Air Force Base, New York, and shall be posted and
       maintained by him for 60 consecutive days thereafter, in
       conspicuous places, including all bulltein boards and other places
       where notices to employees are customarily posted.  The Commander
       shall take reasonable steps to ensure that such notices are not
       altered, defaced, or covered by any other material.
 
          (d) Pursuant to section 2423.30 of the Authority's Rules and
       Regulations notify the Regional Director, Federal Labor Authority,
       Region I, 10 Causeway Street, Room 1017, Boston, MA, 02116 and
       whose telephone number is (617) 565-7280, in writing, within 30
       days from the date of this order, as to what steps have been taken
       to comply herewith.
 
    Issued, Washington, D.C., February 5, 1987.
 
                                       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 EFFECUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE
 
                FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 
                      WE NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail and refuse to reopen contract negotiations and
 negotiate in good faith with the American Federation of Government
 Employees, Local 2612, AFL-CIO, the exclusive representative of our
 employees, with respect to conditions of employment relating to
 negotiations for a new collective bargaining agreement.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL, upon request of the American Federation of Government
 Employees, Local 2612, AFL-CIO, the exclusive representative of our
 employees, reopen contract negotiations and bargain with respect to
 conditions of employment relating to subjects included in the parties'
 original proposals for a new collective bargaining agreement.
                                       (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 I, whose address is:  10 Causeway Street, Room 1017,
 Boston, MA 02116 and whose telephone number is:  (617) 565-7280.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 1-CA-50405
 
    DEPARTMENT OF THE AIR FORCE
    GRIFFISS AIR FORCE BASE,
    ROME, NEW YORK
    Respondent
 
                                    and
 
    AMERICAN FEDERATION OF GOVERNMENT 
    EMPLOYEES, Local 2612, AFL-CIO
    Charging Party
 
    Major Charles D. Beckengauer, Esquire
    For the Respondent
 
    Mr. Salvatore Grifasi
    For the Charging Party
 
    Gerard Mr. Greene, Esquire
    For the General Counsel, FLRA
 
    Before:  GARVIN LEE OLIVER
    Administrative Law Judge
 
                                 DECISION
 
    Statement of the Case
 
    This case concerns an unfair labor pracitce complaint issued by the
 Regional Director, Region I, Federal Labor Relations Authority, Boston,
 Massachusetts, against the Department of the Air Force, Griffiss Air
 Force Base, Rome, New York (the Respondent), based on a charge filed by
 the American Federation of Government Employees, Local 2612, AFL-CIO
 (the Union).  The complaint alleged, in substance, that the Respondent
 violated Section 7116(a)(1) and (5) of the Federal Service
 Labor-Management Relations Statute, 5 USC Section 7101 et seq. (the
 Statute), commencing on or about May 2, 1985, by refusing to resume
 negotiations for a new collective bargaining agreement, upon request,
 after the Union's membership refused to ratify the collective bargaining
 agreement reached by the parties on or about November 30, 1984.
 
    The Respondent's Answer admitted the jurisdictional allegations as to
 the Union, the Repondent, and the charge, and admitted that the contract
 concluded by the parties' duly authorized representatives on or about
 November 30, 1984 was subject to ratification by the membership of the
 Union.  The Respondent's Answer, however, denied any violation of the
 Statute.
 
    A hearing was held at Griffiss Air Force Base, Rome, New York.  The
 Respondent, Charging Party, and the General Counsel were represented and
 afforded full opprotunity to be heard, adduce relevant evidence, examine
 and cross-examine witnesses, and file post-hearing briefs.  The
 Respondent and General Counsel filed helpful briefs, and the proposed
 findings have been adopted where found supported by the record as a
 whole.  Based on the entire record, /1/ including my observation of the
 witnesses and their demeanor, I make the following findings of fact,
 conclusions of law, and recommendations.
 
    Findings of Fact
 
    1.  At all times material herein, the Respondent has recognized the
 Union as the exclusive representative of an appropriate unit of
 employees at Griffiss Air Force Base, Rome, New York.  Since 1968, the
 Union has negotiated collective bargaining agreements with Respondent,
 which agreements were executed in 1970, 1973, 1976, and 1981.
 
    2.  Relevant provisions of previous agreements dealing with
 "preliminary agreements" were as follows:
 
          1970:  (1968 Ground Rules) As each separate article is agreed
       to, a preliminary written draft will be prepared and signed by the
       spokesman for each party.  It is understood, however, that
       agreement on all such articles is contingent upon local agreement
       on a total contract.  It is further understood that local
       agreement on the total contract is subject to approval by HQ USAF
       and the National President of AFGE and that the contract will not
       be binding on either party until such a approval is obtained.
 
          1973:  (1972 Ground Rules) As each separate article is agreed
       to, a preliminary written draft will be prepared and signed by the
       spokesman for each party.  It is understood, however, that
       agreement on all such articles is contingent upon local agreement
       on a total contract.  It is further understood that local
       agreement on the total contract is subject to approval by HQ USAF
       and ratification by the membership of Local 2612, AFGE, and that
       the contract will not be binding on either party until such
       approval is obtained.
 
          (Article 37) This agreement is subject to ratification by the
       membership of Local 2612, AFGE.
 
          1976:  (Ground Rules) As each separate article is agreed to, a
       preliminary written draft will be prepared and signed by the
       spokesman for each party.  It is understood, however, that
       agreement on all such articles is contingent upon local agreement
       on a total contract.  It is further understood that local
       agreement on the total contract is contingent on approval by the
       HQ SAC and ratification by the membership of Local 2612, AFGE, and
       that the contract will not be binding on either party unitl said
       approval is obtained.
 
          (Article 37) This agreement is subject to ratification by the
       membership of Local 2612, AFGE.
 
    3.  Until June 1984, when the parties began negotiating the contract
 involved in this proceeding every contract between the parties had been
 subjected to ratification by the Union membership.
 
    4.  In 1979, William DeSantis became the Chief Negotiator for
 management.  Based upon his personal initiatives, changes were made to
 the 1979 ground rules deleting any reference to ratification and the
 language concerning whether the parties are bound.  Management also
 tried to delete the language in Article 37 concerning ratification.
 After a series of exchanges, Article 37 of the 1981 agreement concerning
 ratification was left unchanged from the 1976 agreement.
 
    5.  In 1981, the parties reached agreement under the ground rules
 dated 1979.  The Union advised Respondent that the agreement would be
 submitted to the membership for ratification.  The agreement was
 submitted to the membership for ratification and it failed.
 
    6.  Sometime prior to June 5, 1981, Union president Orrie Passante
 informed Mr. DeSantis of the failed ratification.  Mr. DeSantis
 immediately informed Mr. Passante that management would not return to
 the table.  Mr. DeSantis relied on the changes to the ground rules.  Mr.
 Passante neither agreed nor disagreed with Mr. DeSantis position.
 
    7.  On June 5, 1981, Mr. Passante wrote to Mr. DeSantis informing him
 of the reasons for the rejection listing five articles and including
 proposals to replace the objectionable provisions.
 
    8.  On or before July 5, 1981, Mr. Passante's successor, Vincent
 Capitano, resubmitted the original contract to the local for
 ratification.  The contract was ratified.  The contract had not been
 modified since the first ratification effort.
 
    9.  Mr. Capitano initiated a change to Article 35 (dues allotments)
 because the Union could not live up to its commitment.  This change was
 on July 7, 1981, after the second ratification meeting.  Article 35 was
 changed again on July 20, 1981, pursuant to direction from the agency
 head responsible for approving the agreement.
 
    10.  Other changes were made to the contract on July 10, 1981 after
 the second ratificaion meeting also because of direction from the agency
 head.  The changes were to Articles 18, 23, and 37.
 
    11.  Negotiations on the contract which is involved in this
 proceeding began in June and ended in November 1984.  Employee Sal
 Grifasi, as Chief Negotiator, and Greg Howe, as his assistant, comprised
 the Union's negotiating team.  The Respondent was represented by William
 DeSantis, as its Chief Negotiator, and Phil Montana.  At the very
 beginning of negotiations, on June 14, 1984, Grifasi and DeSantis signed
 off on the Union's proposal for Article 37 of the new contract which,
 like its antecedents, provided in relevant part, "This agreement is
 subject to ratification by membership of Local 2612, AFGE." This item
 was part of the Union's initial package of contract proposals, and it
 was signed without amendment, discussion, or the exchange of
 counterproposals.  Grifasi and DeSantis signed Article 37 before
 negotiations on ground rules began.  Article 37 provided, in part, as
 follows:
 
                                ARTICLE 37
 
                           DURATION OF AGREEMENT
 
          Section 1.  This agreement is subject to ratification by
       membership of Local 2612, AFGE.  It is effective on the date of
       approval by HQ SAC and will expire 3 years after the date it was
       signed by the parties.
 
    12.  The Respondent's proposal for the 1984 ground rules made no
 reference to ratification of the contract by the Union's membership, and
 the ground rules concluded by the parties later in June 1984 likewise
 did not address the subject.  These ground rules provided, in part:
 
            3.  Frequency, Duration and Location of Negotiation
 
                Sessions
 
          Both Management and the Union will negotiate in good faith with
       the objective of reaching agreement upon the subjects included in
       the original proposals.  Neither management nor the union will be
       obligated to negotiate with respect to any sjbject not included in
       said proposals.
 
                        5.  Preliminary agreements
 
          When agreement is reached on an article, the article will be
       expressed in writing and initialed by both spokespersons.  After
       initialing the article it will not be the subject of future
       discussions unless it is in conflict with a later article which is
       agreed upon.
 
    13.  Management had previously proposed ground rules which, in
 addition to the language above, provided:
 
          The agreement will become contractually binding when signed by
       the Union Management and approved by HQ SAC/DPC.
 
    This language was removed when the Union indicated that "it was
 covered in Article 37."
 
    14.  During negotiations on the ground rules Mr. DeSantis infromed
 the Union that once an article was agreed upon, it would not be
 discussed again unless it conflicted with another article;  that
 Respondent did not recognize an obligation to reopen if the Union did
 not ratify;  that ratification was their problem, and Respondent had
 refused to return to the table before in 1981 and would do so again.
 The Union representatives made clear that they were relying on Article
 37 requiring member ratification and expected to return to the table if
 the agreement was not ratified.  They explained that they would do the
 best they could, but it was up to the members to accept or reject the
 contract.
 
    15.  The evidence does not support Respondent's claim that paragraph
 5 of the 1984 ground rules extended so far as to prevent the reopening
 of the contract if the ratification required by Article 37 was not
 obtained.
 
    16.  The parties concluded negotiations on November 30, 1984 with "a
 package deal." The package deal included Articles 9 (Union Activities),
 Article 10 (Union Representation), Article 11 (Employer-Labor
 Relations), Article 18 (tours of Duty), and Article 39 (Publication and
 Distribution of the Agreement).  The issues resolved with the package
 deal were:  official time for union training (Article 9, Section 2)
 official time for representation (Article 10, Section 3) rent (Article
 9, Section 5), tours of duty for the Union President and Chief Steward
 (Article 18, Section 3), costs of reproducing the agreement (Article 38,
 Section 1) and waiver of Union's right to bargain during life of
 agreement (Article 11, Section 1).  Rent had always been a major issue.
 
    17.  In exchange for the Union's proposals concerning office space,
 official time, and the printing and distribution of the contract,
 DeSantis obtained a major concession from Grifasi and Howe with the
 waiver of the Union's bargaining rights during the life of the contract
 in Article 11, Section 1.  That concession troubled Grifasi and Grifasi
 told DeSantis as they sat at the table. "I hope that the membership will
 buy this." DeSantis replied with a sales pitch, telling Grifasi, "When
 you present this (to) the membership, say it is a good contract.  We
 have given up a lot and so have you.  Don't concentrate on Article 11.
 Remember now, if it doesn't get ratified because of Article 11, the
 other four parts of the package deal come back out, too.  We are talking
 a package deal." As the meeting ended, Grifasi briefed DeSantis on the
 procedures the Union would have to follow to prepare for the
 ratification vote and the length of time ratificaion would take before
 the contract could be signed.  The evidence thus firmly establishes that
 from the very beginning of the negotiations in June 1984, Grifasi and
 Howe made it clear to the Respondent that their authority was limited to
 negotiating the best contract they could get, and that execution of the
 negotiated contract was dependent upon ratification by the membership.
 The evidence also clearly establishes that DeSantis, by signing Article
 37 and by acknowledging that the negotiated contract would be put to the
 membership for ratificaiton, acceded to that condition.
 
    18.  There are no provisions in the Union's Constitution and By-Laws
 which either require ratification or describe the procedures for
 ratification.
 
    19.  The contract was put to a vote of the membership at a meeting in
 February 1985.  Grifasi addressed the membership and stated that, "The
 contract is a good contract and should be ratified." However, the
 membership voted to reject the contract because of Article 11, Section
 1.  The vote was taken by a show of hands, the established procedure
 followed by the Union in the ratification of all previous contracts.
 Both Grifasi and Howe abstained from voting, because as the negotiators
 they did not consider themselves impartial.  Union President Joe
 Noviasky, Chairman of the meeting, also abstained in accordance with
 established practice and in the absence of a tie vote.
 
    20.  Following the meeting Greg Howe informed William DeSantis the
 next day that the membership had not ratified the contract and had
 objected to Article 11, Section 1.  Union president Noviasky wrote to
 the Respondent's Labor Relations Chief, Malio Cardarelli, on February
 11, 1985, informing him of the membership's rejection of the contract
 and requesting further negotiations.
 
    21.  On February 14, 1985 Cardarelli responded by suggesting a second
 ratification effort and stating, in part, "Although we have not
 finalized our position relative to the resumption of negotiations, a
 significant set back in the resolution of a total contract can be
 anticiapted by a return to the bargaining table due to the relationship
 of the provision at issue (Article 11, Section 1) and the issues of
 official time, rent for office space, contract negotiation costs and
 tours of duty." During the same period of time, Cardarelli remarked to
 Noviasky that to return to the bargaining table now "would be giving the
 Union two bites of the apple."
 
    22.  Noviasky wrote back to Cardarelli on February 19, 1985,
 confirming that the contract was not ratified because of Article 11,
 Section 1, but advising Cardarelli that "(d)ependent on ratification
 vote, there may be other items in the new agreement which the membership
 may require to be renegotiated."
 
    23.  A second ratification vote was conducted at a Union meeting on
 April 2, 1985.  Following discussion by Grifasi, Noviasky, and others, a
 motion was made and seconded "to vote against the new contract for the
 same reasons as before." The two Union negotiators and the president
 again abstained.  The membership voted the contract down for a second
 time.
 
    24.  On April 15, 1985 Noviasky wrote to Cardarelli advising him that
 the contract had been resubmitted for ratification but "the contract as
 it now stands failed to meet approval." Noviasky requested that
 "negotiations be resumed at the earliest possible date."
 
    25.  By letter of April 30, 1985, Mr. Cardarelli requested further
 information on the Union's poistion.  He said, "In your letter of 19
 February 1985, you indicated 'dependent on the (second) ratification
 vote, there may be other items in the new agreement which the membership
 may require to be renegotiated.' In this regard, please identify the
 specific contract provision(s) that need to be discussed if we were to
 agree with your request to negotiate under the circumstances."
 
    26.  On May 2, 1985 Mr. Grifasi, who until then had stepped aside to
 allow Union president Noviasky to deal with the Respondent, wrote to his
 counterpart on the Respondent's negotiating team, Mr. DeSantis, stating
 that the Union was "willing to meet and discuss (the rejections by the
 membership) in order to complete our Contract Negotiations." Howe
 delivered the letter for Grifasi.  DeSantis requested Howe to have
 Grifasi send him another letter updating which articles the membership
 did not like.  He also stated that Grifasi should leave the word
 "negotiate" out of the letter or he would not answer it.
 
    27.  At all times material the Union has requested, and continues to
 request, that Respondent resume negotiations for a new collective
 bargaining agreement.  Respondent at all times material has refused to
 return to the bargaining table to resume negotiations for a new
 collective bargaining agreement based on its determination that, under
 the ground rules, it is not required to reopen articles once agreement
 is reached.
 
    28.  On July 2, 1985, Mr. Grifasi requested assistance from the
 Federal Services Impasse Panel (the Panel).  In the request, he
 identified only Articles 11, (Section 1), 9 (Section 5), 18 (Section 3)
 and 38 (last two sentences) (and not Article 10 nor Article 9, Section
 2) and said, "If not ratified, all four items were to be renegotiated."
 Grifasi stated that the issues were not at impasse, rather the impasse
 was that the Respondent had refused to resume negotiations.
 
    29.  On September 9, 1985 the Panel declined to assert jurisdiction
 on the basis that the case involved threshold questions concerning the
 obligation to bargain which must first be resolved in an appropriate
 forum.
 
                Discussion, Conclusion, and Recommendations
 
    The complaint alleges that Respondent violated section 7116(a)(1) and
 (5) of the Statute commencing on or about May 2, 1985 by refusing to
 resume negotiations for a new collective bargaining agreement, upon
 request, after the Union's membership refused to ratify the collective
 bargaining agreement reached by the parties on or about November 30,
 1984.  The General Counsel contends that where the parties agree that a
 contract is subject to ratification by the Union's membership, an agency
 is obligated to resume negotiations absent a showing that the exclusive
 representative clearly and unmistakably waived its right to reopen.  The
 General Counsel relies upon the Authority's decision in U.S. Department
 of Commerce, Bureau of the Census, 17 FLRA 667 (1985).  The General
 Counsel asserts that the evidence does not show such a waiver, and
 argues that the ground rules in this case no more present a question of
 interpretation that did the ground rules in Commerce.  The General
 Counsel claims that the procedures used by a union in pursuing
 ratification are not subject to challenge by an employer, and, in any
 event, the evidence establishes that the Union made a good faith effort
 to obtain ratification.  The General Counsel also maintains that the
 Union was not required to justify its bargaining request or resubmit
 proposals in advance.
 
    Respondent defends on the basis that the case is not appropriate for
 resolution by the Authority because the determination that a duty to
 bargain came into existence after full agreement on November 30, 1984
 requires interpretation of the ground rules as well as Article 37 which
 is more appropriate for the forum adopted by the parties for disputes of
 interpretation -- an arbitrator.  Respondent claims that the Commerce
 case is distinguishable on several grounds.  Respondent also maintain
 that the Union's conduct on or after November 30, 1984 is subject to a
 good faith standard, and the Union breached that standard.  Respondent
 also insists that even if a duty to bargain was created after November
 30, 1984, it has not committed an unfair labor practice as management
 needed an explanation of what was going on, and the Union's conduct in
 the negotiations and before the Panel excused any duty to bargain.
 Respondent claims that the Union misrepresented the need for
 ratification, torpedoed the ratification process, unlawfully tried to
 limit what it would reopen after the failed ratification effort, and
 misrepresented before the Panel the status of the negotiations.
 
    The Authority has recognized that the ratification of a tentative
 contract by an exclusive representative's membership may be a
 precondition to a final and binding agreement between the parties to a
 bargaining relationship.  Department of the Navy, Norfolk Naval
 Shipyard, Portsmouth, Virginia, 13 FLRA 571, (1984);  U.S. Department of
 Commerce, Bureau of the Census, 17 FLRA 667, (1985);  Department of the
 Interior, National Park Service, 20 FLRA No. 65, 20 FLRA 537, 541 fn. 7
 (1985).  Where the membership rejects tentative contract, an agency is
 obligated to resume negotiations absent a showing that the exclusive
 representative clearly and unmistakably waived its right to reopen
 contract negotiations.  In the Commerce case the Authority found that
 ratification was a prerequisite, relying upon a ratification provision
 included in the parties' ground rules, evidence that the existing
 collective-bargaining agreement had been ratified by the membership
 before it became effective, and evidence that when the parties initialed
 off on their final package of contract proposals the Union informed the
 agency that they would be placed before the membership for a
 ratification vote.  Under the circumstances, the Authority rejected the
 agency's argument that a ground rules provision, which precluded the
 reconsideration or revision of proposals previously approved by the
 parties absent mutual agreement, constituted a waiver of the Union's
 rights and thereby barred reopening following a failed ratification
 vote.  The Authority did note that the parties themselves, by means of
 another provision in the ground rules, limited their opportunity to
 raise new issues after the first twelve hours of negotiations.
 Accordingly, the Authority found that the agency was not obligated to
 negotiate on matters not previously addressed at the bargaining table.
 However, the Authority concluded that the agency did violate Section
 7116(a)(1) and (5) of the Statute insofar as it refused to bargain over
 any matter which, although addressed in negotiations, was not embodied
 in the tentative contract rejected by the membership.
 
    As urged by the General Counsel, the Authority's decision in
 Commerce, supra, is relevant to this proceeding in several respects.
 First, it establishes beyond question that an agency's bargaining
 obligation does not end with the conclusion of contract negotiations,
 where the parties expressly provide the union's membership an
 opportunity to ratify the negotiator's agreement.  Secondly, it requires
 an agency to show that, despite an express provision for ratification, a
 union clearly and unequivocally waived its right to reopen negotiations
 following the membership's rejection of a tentative contract, in order
 for the agency to justify a refusal to reopen negotiations.  Thirdly, it
 reveals that there is no statutory restriction on the scope of
 bargaining available to a union following the membership's rejection of
 a tentative contract;  only the parties themselves may restrict the
 scope of bargaining, through ground rules for example.
 
    Like the Commerce case the evidence in this proceeding establishes
 that the parties agreed, in Article 37, to make ratification a condition
 precent to a binding contract.  Contrary to the claim of Repondent's
 witness DeSantis, who asserted that the ratification provision of
 Article 37 "requires management to do nothing" in the event ratification
 fails, the Article manifested Respondent's obligation to continue
 negotiations until a contract was ratified by the membership.  There is
 no requirement that a ratification provision, to be effective, spell out
 that the parties will reopen negotiations if the contract is rejected;
 no such language appeared in the ratification provision cited by the
 Authority in commerce, and Respondent does not cite any case law, in
 either public or private sector, to support that view.  Like Commerce,
 the evidence in this proceeding reveals a history, and established
 practice dating back to the parties' first contract, of making
 ratification a condition precedent to a binding contract.  Finally, and
 similarly, the evidence convincingly establishes that throughout the
 negotiations, and particularly at their conclusion on November 30, 1984,
 the Union's negotiators informed the Respondent that they would put the
 contract before the membership for a ratification vote.
 
    Against the weight of this evidence, Respondent agrues that the 1984
 ground rules, paragraph 5, precluded reopening in the event of a failed
 ratification vote.  Like the ground rules at issue in Commerce, there is
 no literal support in the 1984 ground rules for Respondent't argument.
 The paragraph on reopening does not address ratification, in any items,
 and the Union prevailed in deleting from Respondent's ground rules
 proposal any language infringing upon Article 37.  Moreover, the
 significance that Respondent attributes to paragraph 5 is flatly
 contradicted by the evidence that DeSantis knew the Union intended to
 put the contract to a ratification vote.  In short, Respondent has not
 shown that the Union, by agreeing to paragraph 5 of the ground rules,
 clearly and unequivocally waived its right to reopen contract
 negotiations in the event ratification failed.  Nor does the evidence of
 the 1979-81 negotiations support Respondent's argument.  Rather, the
 evidence shows that the Union's negotiators at that time, like their
 predecessors in negotiations dating back to 1978, made it clear to
 Respondent that their authority only extended to the negotiations of a
 contract, and not to its execution absent ratification by the
 membership.  The evidence further shows that in the 1979-81 negotiations
 Respondent ultimately assented to ratification as a precondition to a
 binding contract by agreeing to Article 37.  Evidence offered by the
 Respondent to show that DeSantis refused in June 1981 to reopen
 negotiations does not establish that the Union then waived its right to
 reopen.  The Union chose to resubmit the contract for a second
 ratification vote, as in this case, and it was ratified.  There was no
 need to pursue the matter.  Likewise, DeSantis more recent threats
 during negotiations in 1984 not to reopen when balanced against Article
 37 and the Union's continued insistance on its rights thereunder cannot
 support a finding that the Union thereby clearly and unmistakably waived
 its right to reopen negotiations.
 
    Absent a clear and unequivocal waiver, Respondent's obligation under
 the Statute remains, as it has always been, to return to the bargaining
 table with a sincere resolve to reach agreement with the Union.  See
 section 7114(a)(4);  7114(b)(1), (2), (3) and (5).  /2/ Commerce, supra;
  Department of the Interior, National Park Service, 20 FLRA No. 65, 20
 FLRA 537 (1985).  Such a statutory right must be consciously yielded
 before the Authority will defer to the parties' collective bargaining
 agreement.  Cf.  U.S. Nuclear Regulatory Commissioner, 21 FLRA No. 96,
 21 FLRA 765 (1986).  Thus, Respondent's argument that the dispute
 involves a question of contract interpretation which should be referred
 to the grievance/arbitration procedure for resolution is without merit.
 The ground rules upon which Respondent relies no more present a question
 of interpretation than did the ground rules examined by the Authority in
 Commerce.  In that case, the Authority had no difficulty distinguishing
 the intent of the various ground rules provisions involved, and likewise
 in the proceeding that language and witnesses' testimony concerning the
 negotiations establish that paragraph 5 of the ground rules and Article
 37 were not intended to foreclose the statutory obligation to continue
 to negotiate in good faith in the event ratification failed.
 
    Respondent's argument that it needed an explanation from the Union as
 to what articles needed to be discussed before it could resume
 negotiations pursuant to the Union's request is without merit.  The
 Union notified Respondent that the membership had failed to ratify the
 contract, and that it was "willing to meet and discuss this in order to
 complete our contract negotiations." In reply, the Union was requested,
 among other things, to send another letter updating which articles the
 membership did not like.  The Statute provides for meetings to take
 place between the parties as part of the collective bargaining process.
 See sections 7103(a)(12), 7114(a)(4) and 7114(b)(3).  There is no
 requirement in the Statute that all proposals must be in writing.
 Environmental Protection Agency, 16 FLRA 602, 613 (1982), remanded to
 Authority for clarification regarding remedy, sub nom. American
 Federation of Government Employees, v. FLRA, No. 85-1057 (D.C. Cir.,
 February 5, 1986), supplemental decision affirming original disposition,
 Environmental Protection Agency, 21 FLRA No. 98 (1986).  Unlike the case
 before the Authority in Commerce, there is no evidence that the parties
 agreed upon any conditions which required the Union to justify its
 bargaining request or resubmit proposals in advance of negotiations.
 The only restriction upon the scope of negotiations imposed by the
 ground rules, other than those already discussed, was that bargaining
 was not required on any subject not included in the parties' originial
 proposals.  It is also noted that Respondent never agreed to resume
 negotiations per se and instructed the Union to leave out the word
 "negotiate" or the letter would not be answered.  Good faith bargaining
 can scarcely be conducted within the framework of a stated position
 which asserts in effect that the employer is not obliged to bargain.
 Department of the Air Force, Scott Air Force Base, 5 FLRA 9, 23 (1981).
 The record also demonstrates that Respondent was well aware that the
 main objection of the Union membership was to Article 11, Section 1.
 Thus, as recognized at the November 30, 1984 negotiation session, in
 this eventually the "package deal" agreed to at the time came apart.  As
 noted, Respondent's duty under the Statute at this point was to resume
 negotiations in good faith upon request.
 
    Assuming that the Union's ratification process is subject to a good
 faith standard, as urged by Respondent, /3/ Respondent has not shown
 that the Union acted in bad faith in conducting the ratification
 proceedings.  The Union negotiators discussed the contract at the Union
 meetings and stated it was a good contract.  The abstentions from voting
 of the negotiators and the Union president under the circumstances do
 not demonstrate that they "torpedoed the agreement they made," as urged
 by Respondent.  The Union's other conduct after November 30, 1984 as
 reflected in the record also does not excuse Respondent's total failure
 to bargain.
 
    It is concluded that a preponderance of the evidence establishes that
 Respondent violated section 7116(a)(1) and (5) of the Statute commencing
 on or about May 2, 1985, as alleged, by refusing to resume negotiations
 for a new collective bargaining agreement, upon request, after the
 Union's membership refused to ratify the collective bargaining agreement
 reached by the parties on or about November 30, 1984.
 
    Based on the foregoing findings and conclusions, it is recommended
 that the Authority issue the following order:
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Statute, the
 Authority hereby orders that the Department of the Air Force, Griffiss
 Air Force Base, New York shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to reopen contract negotiations and
       negotiate in good faith with the American Federation of Government
       Employees, AFL-CIO, the exclusive representative of its employees,
       with respect to conditions of employment relating to negotiations
       for a new collective bargaining agreement.
 
          (b) In any like or related manner, interfering with,
       restraining, or coercing employees in the exercise of their rights
       assured by the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute.
 
          (a) Upon request of the American Federation of Government
       Employees, Local 2612, AFL-CIO, the exclusive representative of
       its employees, reopen contract negotiations and bargain with
       respect to conditions of employment relating to subjects included
       in the parties' original proposals for a new collective bargaining
       agreement.
 
          (c) Post at its facilities copies of the attached Notice marked
       "Appendix" on forms to be furnished by the Authority.  Upon
       receipt of such forms, they shall be signed by the Commander,
       Griffiss Air Force Base, New York, and shall be posted and
       maintained by him for 60 consecutive days thereafter, in
       conspicuous places, including all bulletin boards and other places
       where notices to employees are customarily posted.  The Commander
       shall take reasonable steps to ensure that such notices are not
       altered, defaced, or covered by any other material.
 
          (d) Pursuant to 5 C.F.R. section 2423.30 notify the Regional
       Director, Federal Labor Relations Authority, in writing, within 30
       days from the date of this order, as to what steps have been taken
       to comply herewith.
 
                                       GARVIN LEE OLIVER
                                       Administrative Law Judge
 
    Dated:  July 30, 1986
    Washington, D.C.
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) The unopposed motions of Respondent and the General Counsel to
 correct the record are granted.  The record is hereby corrected as set
 forth therein.  As also noted by counsel for the General Counsel, the
 parties agreed that a copy of a letter from the Federal Services
 Impasses Panel to Mr. Sal Grifasi, dated September 9, 1985, could be
 made a part of the record.  The letter was received as Joint Exhibit 17
 (Tr. 85).
 
    (2) Section 7114 of the Statute provides,