25:0740(63)CA - Army and Air Force Exchange Service and Army and Air Force Exchange Service, Oakland AB, Oakland, CA -- 1987 FLRAdec CA
[ v25 p740 ]
The decision of the Authority follows:
25 FLRA No. 63 ARMY AND AIR FORCE EXCHANGE SERVICE and ARMY AND AIR FORCE EXCHANGE SERVICE, OAKLAND, ARMY BASE OAKLAND, CALIFORNIA Respondents and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1157, AFL-CIO Charging Party Case No. 9-CA-50111 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority on exceptions filed jointly by the Respondent Army and Air Force Exchange Service (AAFES) and the Respondent Army and Air Force Exchange Service, Oakland, California (AAFES, Oakland) to the attached desision of the Administrative Law Judge. The General Counsel filed cross exceptions to the remedy recommended by the Judge and an opposition to the Respondents' exceptions. The issues are whether AFFES Oakland violated section 7116(a)(1) and (5) of the Statute by unilaterally changing a condition of employment of bargaining unit employees by expanding its policy of verifying the status of the dirvers' licenses of certain dirvers to include all employees who drive agency vehicles without providing the Union with notice and an opportunity to bargain concerning the impact and implementation of the change; and if so, what the remedy should be. II. Background As the pertinent facts in this case are fully set forth in the Judge's Decision, they will be discussed only as relevant. The American Federation of Government Employees (AFGE) is the exclusive representative of a world-wide consolidated unit of employees of AAFES including, among others, AAFES Oakland's full-time and part-time employees. At the time of the proceeding before the Judge, there was no world-wide collective bargaining agreement. AFGE Local 1157 and AAFES Oakland were parties to a local agreement. By agreement between AAFES and AFGE, the authority to bargain over local changes in conditions of employment, which originate and are implemented at the AAFES activity level, is delegated to the local AFGE officials and local management officials. AAFES operates a warehouse complex within the confines of the Oakland Army Base, including a facility for the dispatch and maintenance of warehouse vehicles. Activities and employees in that facility are supervised by a Vehicle Manager and two foremen. The employees include drivers who operate vehicles used in hauling or "over-the-road" operations, and maintenance or automative shop employees such as mechanics and tool and parts attendants who operate vehicles used at the facility (including material-handling equipment such as forklifts and tow motors) and other general warehouse-complex vehicles (including cars and pickup trucks). The regulations of AAFES require that all employees who drive AAFES vehicles have a driver's license. The regulations further require an employee to report arrest or indictment for any offense, except for minor traffic violations. While the regulations require that "over-the-road" drivers have the status of their driving privileges validated once every two years, there is no such requirement for employees not assigned primarily as drivers, and who operate administrative vehicles only periodically. It was the practice at the AAFES Oakland warehouse facility to collect information necessary to verify the driving license status of the "over-the-road" drivers annually, but not to do so for the other drivers of AAFES vehicles. This practice had been in existence for at least 5 1/2 years when, on October 31, 1984, the Vehicle Manager decided to verify the licenses of all employees who dirve AAFES vehicles, including the mechanics and tool and parts attendants. He decided to expand the license verification policy because of his concern that employees might be driving vehicles without valid licenses and that the Agency might be held responsible in the event of an accident involving an unlicensed driver. In carrying out the decision, one of the foremen bagan to collect from employees the information that was necessary to verify the status of their licenses with the California Department of Motor Vehicles (DMV). The first employee the foreman questioned on October 31 was a mechanic who also served as the Chief Steward of Local 1157. The employee provided the information requested but also questioned the expanded license verificaion policy. The Chief Steward on the same day requested to negotiate concerning the impact and implementation of the expanded policy. That request was subsequently renewed by the Chief Steward and other Union officers. The foremen completed the collection of information from the employees by November 5, 1984, and the information was transmitted to the California DMV for verification. The DMV reported that the licenses of a tool and parts attendant and the Chief Steward had been suspended for various serious violations and that the employees did not have current valid licenses. Subsequently, the tool and parts attendant was removed and the Chief Steward was suspended for 60 days, essentially for failure to report their driving violations and license suspensions as required by AAFES regulations and for improperly continuing to drive AAFES vehiches after their licenses had been suspended. Prior to October 31, 1984, no official of Local 1157 was aware of the expanded license verification policy. The Respondent had not given any written or verbal notice of the new policy to the Union officers designated to receive notice of changes in conditions of employment. Between October 31, 1984, and November 7, 1985, the parties had numerous telephone conversations, exchanged letters, met on several occasions, and had two bargaining sessions concerning the new policy without reaching any agreement. III. Administrative Law Judge's Decision The Judge concluded that the Respondent AAFES Oakland violated section 7116(a)(1) and (5) of the Statute when it unilaterally changed working conditions by expanding the investigation of driving records to include all employees who drive AAFES vehicles. /*/ In reaching this conclusion, the Judge rejected the arguments AAFES Oakland raised in its defense, finding as follows: 1. The action taken on October 31, 1984, was a change in conditions of employment for the new group of employees subject to license verification. Moreover, the change was not a one-time occurrence. The Respondent had decided to continue to verify the licenses of all drivers at least on a random basis in the future. 2. The action was not taken "due to an emergency" within the meaning of section 7106(a)(2)(D) of the Statute. 3. AAFES Oakland did not provide the Union with adequate notice of the change. 4. The change had more than a de minimis effect on conditions of employment of bargaining unit employees. 5. An agency cannot delay giving a union a meaningful opportunity to bargain until employees are actually adversely affected by a change. Rather, a reasonably foreseeable adverse effect triggers the bargaining obligation. 6. The delay in negotiations was not attributable entirely to the Union. AAFES Oakland contributed to the delay. If there had been an "overriding exigency" requiring the Union to proceed more promptly as AAFES Oakland claims, the Respondent would have tried harder to expedite matters. To remedy the unfair labor practice, the Judge recommended that the Respondent be ordered to cease and desist from the conduct found violative of the Statute, to rescind the unilateral change in the license verification policy and return to the past practice, to bargain with the Union concerning the impact and implementation of any change in that practice, and to post an appropriate notice. However, the Judge found that the status quo ante remedy sought by the General Counsel, which would include cancellation of the discipline taken against the two employees and related corrective actions, was not appropriate. The Judge found that the relief requested was not in the public interest since the employees were disciplined because of their own misconduct in violating the Agency's regulations. IV. Exceptions In its exceptions, the Respondents essentially reiterate the arguments presented and addressed by the Judge in her decision and disagree with the Judge's principal findings and conclusions. The General Counsel excepts to the remedy recommended by the Judge, arguing that status quo ante relief is warranted to include the corrective actions requested for the two employees who were disciplined. V. Analysis Pursuant to section 2423.29 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 and find that no prejudicial error was committed. Those rulings are affirmed. We have also considered the Judge's decision and recommended remedial order, the submissions of the parties, and the record in the case. We adopt the Judge's findings, conclusions and recommended order to the extent consistent with our findings below. We also note that there is no contention that the Respondents were obligated to negotiate over the substance of the change. The General Counsel's allegations concern the obligation to bargain regarding the procedures to be followed in implementing the change and appropriate arrangements for employees adversely affected by the change. In agreement with the Judge, we conclude that the Respondent AAFES Oakland violated section 7116(a)(1) and (5) of the Statute by changing its license verification policy without providing the Union with adequate notice of the change. In reaching this conclusion, we agree with the Judge that the change constituted a change in conditions of employment for bargaining unit employees whose drivers' licenses had not been previously verified and that the change gave rise to a duty to bargain. With respect to the Respondent's contention that any change in conditions of employment was de minimis, we agree with the Judge that the change in the license verification policy was more than de minimis. However, we do not adopt the Judge's rationale for that conclusion. The Authority recently reassessed and modified the de minimis standard previously used to identify changes in conditions of employment which require bargaining. Under the revised standard, we place principal emphasis on such general areas of consideration as the nature and extent of the effect or reasonably foreseeable effect of the change on conditions of employment of bargaining unit employees. Department of Health and Human Services, Social Security Administration, 24 FLRA No. 42 (1986), petition for review filed sub nom. American Federation of Government Employees, Local 1760 v. FLRA, No. 86-1702 (D.C. Cir. Dec. 17, 1986). In this case, other than over-the-road drivers, the licenses of employees who drive agency vehicles were not verified before Respondent AAFES Oakland's policy change. The change had the potential of directly affecting the conditions of employment of all of those bargaining unit employees with driving responsibilities. In fact, the expanded policy led to the discipline of two employees, including the removal of one and the suspension of the other for 60 days. Under these circumstances, we find that the nature and extent of the effect and/or reasonable foreseeable effect of the change on conditions of employment of bargaining unit employees gave rise to bargaining obligation. The Respondent AAFES Oakland was obligated to bargain with the Union concerning the procedures that would be observed in implementing the change and appropriate arrangements for employees who might be adversely affected by the change. With regard to the remedy, in agreement with the Judge we find that the corrective action sought by the General Counsel for the two employees who were disciplined is not appropriate in this case. Notwithstanding the Respondent's unfair labor practice in implementing the expanded license verification policy, it is unrefuted that the employees in question failed to report serious traffic violations and the suspension of their drivers' licenses which they were required to do under agency regulations. While their misconduct might not have been discovered except for the new policy, that fact does not serve to excuse the midconduct or warrant cancellation of the disciplinary actions. See, for example, Equal Employment Opportunity Commission 24 FLRA No. 82 (1986) (where, in a mixed motive removal action, the Authority concluded that even in the absence of protected activity, the employee would have been removed because of the misconduct described). We conclude that the remedy sought by the General Counsel would not effectuate the purposes and policies of the Statute. ORDER The Army and Air Force Exchange Service, Oakland Army Base, Oakland, California (AAFES, Oakland) shall: 1. Cease and desist from: (a) Changing the conditions of bargaining unit employees by expanding the policy of verifying the drivers' licenses of employees to include all employees driving any type of agency vehicle without affording the exclusive representative of the employees, American Federation of Government Employees, Local 1157, AFL-CIO, a reasonable opportunity to complete bargaining concerning the procedures to be followed in implementing the change and appropriate arrangements for employees who might be adversely affected by the change. (b) In any like or 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 Statute: (a) Rescind the change in the driver's license verification policy which expanded verification to include the licenses of all bargaining unit employees driving any type of agency vehicle. (b) Upon request, meet and bargain with American Federation of Government Employees, Local 1157, AFL-CIO concerning the procedures to be followed in implementing any change in the driver's license verification policy and appropriate arrangements for bargaining unit employees who might be adversely affected by such change. (c) Post at all facilities of AAFES Oakland 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 AAFES Oakland and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material. (d) Pursuant to 5 CFR 2423.30, notify the Regional Director, Region IX, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply. It is further ordered that all allegations against the Army and Air Force Exchange Service (AAFES) and the allegation that Respondent AAFES Oakland conditioned bargaining on the withdrawal of an unfair labor practice charge are dismissed. Issued, Washington, D.C., February 18, 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 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 change the conditions of employment of bargaining unit employees by expanding the policy of verifying the drivers' licenses of employees to include all bargaining unit employees driving any type of agency vehicle without providing American Federation Of Government Employees, Local 1157, AFL-CIO notice of any such change and an opportunity to bargain concerning the impact of the change upon unit employees and the procedures to be followed in implementing the change. 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 rescind the change in the license verification policy at AAFES, Oakland Army Base, Oakland, California which expanded verificaion to include the licenses of all employees driving any type of agency vehicle. WE WILL, upon request, meet and bargain with the American Federation of Government Employees, Local 1157, AFL-CIO concerning the procedures to be followed in implementing any expansion in the driver's license verification policy and appropriate arrangements for employees who may be adversely affected by such change. (Agency or Activity) Dated: . . . . . By: (Signature) 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 of compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region IX, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: (415) 995-5000, FTS 8-995-5000. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 9-CA-50111 ARMY AND AIR FORCE EXCHANGE SERVICE, and ARMY AND AIR FORCE EXCHANGE SERVICE, OAKLAND ARMY BASE, OAKLAND, CALIFORNIA, Respondents and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1157, AFL-CIO, Charging Party Luther G. Jones, III, and Catherine M. Vader, For the Respondents George H. Taylor, For the Charging Party R. Timothy Sheils, For the General Counsel Federal Labor Relations Authority Before: ISABELLE R. CAPPELLO Administrative Law Judge DECISION Statement of the Case This is a proceeding under Title VII of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1191, 5 U.S.C. 7101 et seq. (1982), commonly known as the Federal Service Labor-Management Relations Statute, and hereinafter referred to as the "Statute", and the rules and regulations issued thereunder and published at 5 CFR 2411 et seq. Pursuant to a change of unfair labor practices filed on January 11, 1985 and amended on September 24 and October 31, the Regional Director of Region IX of the Federal Labor Relations Authority (hereinafter, the "Authority") investigated and served the complaints initiating this proceeding. The original complaint was served on September 25. An amended complaint was served on October 23. The second amended complaint was served on November 1. The second amended complaint alleges that Respondents violated Sections 7116(a)(1) and (5) of the Statute /1/ on or about January 16, 1985, when, during bargaining, a management agent conditioned bargaining on the Charging Party's withdrawl of a pending unfair labor practice charge. The complaint further alleges that Respondents violated the same statutory provisions, on or about October 30, 1984, when the Safety and Security Division at the Army and Air Force Exchange Service, ("AAFES"), Oakland Army Base, Oakland, California ("AAFES Oakland") changed the working conditions of bargaining-unit employees by expanding the investigation of driving records to include checking with the California Department of Motor Vehicles ("DMV") on all employees driving any type of vehicles at work and without furnishing notice to the charging Party (also referred to herein as the "Union" and "Local 1157") and/or without giving the Charging Party an opportunity to bargain concerning the impact of the change upon unit employees and/or the procedures to be utilitzed in implementing the change. /2/ Respondents deny that they have violated the Statute. A hearing was held on November 22 and 25, 1985 in San Francisco, California. The parties appeared, adduced documentary evidence and examined witnesses. Briefs were filed by the Respondents and the General Counsel on January 31, 1986, pursuant to a December 13, 1985 order extending the briefing time to that date, at the request of the parties. Based upon the record made in this proceeding, my observation of the demeanor of the witnesses, and the briefs, I enter the following findings of fact and conclusions of law and recommend the entry of the following order. Findings of Fact /3/ 1. At all times material herein, AAFES had been and is an agency within the meaning of Section 7103(a)(3) of the Statute. 2. At all times material herein, AAFES Oakland has been and is an activity of AAFES within the meaning of Section 7103(a)(3) of the Statute. Cecil Keltner is the Distribution Center Manager of the Oakland base; and he reports directly to the Atlanta Regional Office. In turn, the head of the Atlanta Regional Office, Rosalie LaFleur, reports to the manager of AAFES, headquartered in Dallas, Texas. 3. At all times material herein, the American Federation of Government Employees, AFL-CIO ("AFGE") has been and is a labor orgainzation within the meaning of Section 7103(a)(4) of the Statute. 4. At all times material herein, AFGE has been and is the exclusive representative of a world-wide consolidated unit of employees of AAFES including, among others, AAFES Oakland's full-time and part-time employees, with exceptions not here relevant. There is no record evidence of the size of the world-wide unit. 5a. At present there is no world-wide collective bargaining agreement. Local 1157 of AFGE and AAFES Oakland are currently parties to a local agreement executed in 1981. By agreement of AAFES and AFGE dated July 2, 1982, the right to bargain over local changes in conditions of employment, which originate and are implemented at the local level exchange activity, is delegated to the local AFGE union officials and local AAFES management officials. 5b. Section 3 of Article 29 of the parties agreement concerns "supervisory investigation of alleged acts of misconduct" (Jt. Exh. 1). 6a. At all times material herein, Local 1157 has been and is an affiliate of AAFES. There is no record evidence of the size of Local 1157. /4/ 6b. The President of Local 1157, Jose Tavares, the Executive Vice-President, Jimmy Fultz, the Unit Vice-President, Robert Williamson, and the Chief Steward are the officers of Local 1157 who are the union-designated persons to receive notices of changes affecting employees at AAFES Oakland. Mr. Tavares was at the Oakland Army Base during the entire month of October 1984 and never received any notice from any management official of its intention to investigate the driving records of employees at Building 99 of AAFES Oakland. 7. AAFES operates a warehouse complex within the confines of the Oakland Army Base, Oakland, California. Within the base, as part of this complex, AAFES has a building, known as "Building 99", set aside for dispatch and maintenance of warehouse vehicles. 8. Activities of Building 99 are supervised by Jack Knight, the Vehicle Manager, who is assisted by two foremen (Cliff Daniels, the Motor Vehicle Operator Foreman, and Ernest Thibodeau, the Maintenance Foreman). The Motor Vehicle Operator Foreman supervises the dispatch of all vehicles including those used in hauling or "over-the-road" operations, the "over-the-road" drivers themselves, and operations of the parts room. The Maintenance Foreman supervises the maintenance employees and the maintenance of all AAFES vehicles used at the facility, including not only the tractor trailer "rigs" used for hauling operations, but material-handling equipment ("MHE") used in the warehouse, such as forklifts and tow motors, as well as other general warehouse-complex vehicles such as a yard "hustler", personnel carriers, cars and pickups. 9a. The regulations of AAFES require that all employees who drive AAFES vehicles have a driver's license. The regulations further require an employee to report arrest or indictment of any offense, excepting monor traffic violations and including driving while intoxicated. While the regulations require that "over-the-road" drivers are to have the status of their driving privileges validated once every two years, there is no such requirement for employees not assigned primarily as drivers, and who only operate administrative vehicles periodically. For over 5 1/2 years, it was the practice at the Oakland warehouse facility to verify the driver's license status of "over-the-road" drivers "annually" (Tr. 320), but not that of other employees in Building 99 who drive AAFES vehicles. See Tr. 95. In October 1984, this latter group consisted of between 12 and 15 Automotive Workers, also called Mechanics (Tr. 304), two Tool and Parts Attendants, and one Car Washer who handled the Tool and Parts Attendants' duties from time to time. It had been the practice at AAFES Oakland to collect information necessary to check on the driving privileges of "over-the-road" drivers, but not on other drivers of AAFES vehicles. 9b. The same three Mechanics drive on a fairly routine basis between Building 99 and the warehouse area, which areas are divided by a public road. The other Mechanics generally stay in Building 99. In "a heavy work load type of situation" all Mechanics may be called upon to drive (Tr. 91). All Mechanics are qualified to do the same work. In some areas of work, Mechanics specialize. The three Mechanics who regularly drive may be away from Building 99 as often as 30 times a week. Off-base parts runs to pick up parts needed for repairs are made twice each day. The Tool and Parts Attendants and the Car Washer generally share equally in making the parts run, and do so as part of their required duties. 10. On October 31, 1984, the Vehicle Manager acted on a decision to request the verification of the driver's license status of all Building 99 employees who drive AAFES vehicles, other than "over-the-road" drivers. This decision was made by the Vehicle Manager because of two concerns. The most recent driver's license validations done on "over-the-road" drivers on October 3, 1984, had disclosed that one driver, Vincent Starks, had lost his driving privileges in 1983. The Vehicle Manager discovered this fact on October 30. See Tr. 245-246. It had earlier been discovered that a maintenance employee, Anthony Woods, who had been discharged for striking a female supervisor with a pickup truck, had been driving AAFES vehicles without a valid license. Mr. Knight testified: "After I had dterrmined that I had now two people under my supervision driving without licenses, I felt it necessary to find out if there were more" (Tr. 255). The other concern arose from a recent article in Heavy Trucking magazine which the Vehicle Manager had read. The magazine contained an article about an accident in which a tractor-trailer destroyed a toll-booth and killed a toll both operator. The employer of the driver was being sued for 100 million dollars. The driver was driving without a license, a fact of which the employer was unaware. The Vehicle Manager feared that AAFES was also exposing itself to potential liability. 11a. On Wednesday, October 31, 1984, a meeting occurred in the office of Mr. Knight, in Building 99. Although work normally starts at 0700 hours, Mr. Knight came in early to prevent the "over-the-road" driver, Vincent Starks from going out with a vehicle. The meeting occurred between 0630 and 0700 hours. In attendance were Cliff Daniels and Ernest Thibodeau. It was decided that Mr. Daniels would gather the information necessary to deliver to the Safety and Security Division in order to make the request for verification of the driving privileges of employees who drive AAFES vehicles, other than "over-the-road" drivers. Mr. Daniels had previously done the requests for verification of the "over-the-road" drivers. At some time after 0630 hours but before 0700 hours, Mr. Knight telephoned Gilbert Pansza, Personnel Management Specialist, to inquire as to the appropriateness of the verification requests. The conversation lasted only about five minutes. Mr. Pansza informed Mr. Knight that he saw nothing "wrong" (Tr. 145), or "no harm" (Tr. 255), in collecting the information necessary to do the checks. (Mr. Pansza appears to have been under a misapprehension that Local 1157 had already been notified that DMV checks were to be done on the Mechanics, Tool and Parts Attendants and Car Washer. See findings 17, 20a and 23 below). 11b. At the beginning of the work day, at 0700 hours, Mr. Daniels began to collect information needed in order to make the requests for verification from the Safety and Security Division. It was necessary to have certain information about the employees in order to make these requests, such as license number, address and date of birth. He only had such information on employees who were "over-the-road" drivers. The requests for verification had to be made by the Safety and Security Division because it was the only place that had the needed access code. 11c. Around 0700, Mr. Daniels first approached Richard Moore and asked him to show his driver's license. Mr. Moore was Chief Steward of Local 1157 form march 1984 to March 1985 (see Tr. 91) and a Mechanic in Building 99. Mr. Daniels did not first Mr. Moore for the information because he was a union official. See Tr. 134 and 305. Mr. Moore responded that his license was in his wife's purse and asked what Mr. Daniels wanted with it. Mr. Daniels told Mr. Moore, that he wanted to have his driver's license checked. Mr. Moore, who had committed his license to memory, gave Mr. Daniels his license number, his address and his date of birth. After speaking to Mr. Moore, Mr. Daniels spoke to all other employees in the automotive section. /5/ 11d. Mr. Moore testified that Mr. Daniels told him, in response to his question about the purpose of the check, that he was going to check the driver's records of all employees; that Mr. Moore asked under what authority; and that Mr. Daniels told him it was under Mr. Pansza's authority. See Tr. 99. Mr. Daniels did not deny saying this; and I find that he did. Mr. Moore immediately requested bargaining. 11e. Prior to October 31, 1984, no official of Local 1157 was aware of the expanded DMV policy; and no written or verbal notice of it had been given to the union officers designated to receive notice of changes. Article Eight of the parties' negotiated agreement grants 14 days to Local 1157 to respond to any proposed changes in personnel policies, practices, or working conditions. See Jt. Exh. 1. 12a. Mr. Moore was Local 1157's Chief Steward and Senior Steward on October 31, 1984. See Tr. 91 and 134. In that capacity, he telephoned Mr. Pansza around 0714 on October 31. The conversation lasted 15 or 20 minutes. Mr. Moore expressed his concern regarding the DMV checks and stated that he wanted to negotiate the impact and implementation of this "new practice" (Tr. 146). Mr. Pansza testified that he asked for "some specifics in writing that day;" that Mr. Moore concurred; and that he, Mr. Pansza, replied that he would look at what the union "proposed in writing" but that, in the meanwhile, management "would proceed with the checks" (Tr. 146). 12b. Mr. Moore testified that bargaining between the parties was "verbal" (Tr. 138). When management later submitted proposals on the matter of the expanded DMV checks, they were verbal. The agreement of the parties provides that Local 1157 has 14 days in which to respond to a change proposed by management and is silent as to whether the responses be verbal or in writing. See Section 2 of Article 8 of Jt. 1. Mr. Pansza may have been confused by Mr. Moore's admitted promise to provide him with a "written request to bargain." See G.C. Exh. 5. 12c. I do not find that Mr. Moore promised to provide written proposals to Mr. Pansza on October 31. 13. Later in the afternoon on October 31, 1984, Mr. Moore, Larry Gantt and Leslie Lewis entered the office of Mr. Daniels and began discussing management's proposed verifications of their driving privileges with the State of California. Mr. Gantt was one of the Tool and Parts Attendants. They protested that the DMV checks violated their constitutional rights and they did not want the checks made. Mr. Daniels responded by telling them: "(N)o way, that (he) was having the driver's licenses checked" (Tr. 308). 14. On November 2, 1984, Mr. Moore wrote a letter to Mr. Pansza and requested bargaining on the "new policy" (G.C. Exh. 5). Mr. Moore asked mr. Pansza to provide "for our review, your written policy containing the appropriate authority (for checks on all employees), which may assist in promptly resolving this issue" and not to make the checks "prior to the completion of contractual terms" requiring bargaining (G.C. Exh. 5). Mr. Moore pointed out that "the parties currently have in place negotiated language which prevents back ground agency checks with the exception of new hires/probationary employees" and offered to provide a copy to Mr. Pansza (G.C. Exh. 5). 15. On November 5, 1984, Mr. Daniels delivered to AAFES Oakland's Safety and Security Division the information he had been collecting from the employees in the Automotive Section. He collected the information over a period of three or four working days. 16. The California Department of Motor Vehicles completed "Driver Record Information" sheets and dated them November 7, 1984. 17a. On November 7, 1984, Mr. Pansza received Mr. Moore's letter of November 2. See finding 14 above. He was confused by the letter because he was under the belief that Local 1157 had been notified that the checks were going to be done and that Mr. Moore had "concurred on behalf of AFGE on the DMV checks" (Tr. 149 and see also Tr. 150). 17b. No management official testified to giving advance notice to any union official or to Mr. Moore, or that Mr. Moore had concurred in the DMV checks. In a letter to Mr. Pansza (G.C. Exh. 7), Mr. Moore denied receiving notice of the DMV checks until October 31, 1984. Mr. Moore's denial is unrefuted and credited. 18. On November 9, 1984, Larry Gantt, a Tool and Parts Attendant in Building 99, received a letter from Mr. Keltner, Distribution Center Manager, placing him on administrative leave "pending the completion of an investigation surrounding the suspension of (his) driving privileges. (R. Exh. 48). 19. On Wednesday, November 14, 1984, Mr. Daniels received from the Safety and Security Division the California DMV checks. The California records show that Mr. Gantt and Mr. Moore did not have valid driver's licenses. Mr. Gantt's was suspended on September 3, 1982 and September 30, 1984. See R. Exh. 42 f. Mr. Moore's was revoked on March 1, 1983 for "hit and run" and suspended on September 20, 1983. See R. Exh. 42(k). 20a. On November 19, 1984, Mr. Pansza replied to the November 2 letter of Mr. Moore and expressed "puzzle(ment)" over Mr. Moore's desire to negotiate (G.C. Exh. 6). In the letter, Mr. Pansza mentioned that Mr. Moore had been "advised" that the DMV checks would occur and had "concurred" (G.C. Exh. 6); that on October 31, 1984, Mr. Moore had called him to provide him "some 'after thoughts' about your (Mr. Moore's) consent (to the DMV checks) and I (Mr. Pansza) asked you (Mr. Moore) to provide me (Mr. Pansza) with 'specific' concerns you (Mr. Moore) might have regarding the agreed to DMV checks"; and that Mr. Moore's letter of November 2, lacked those "specifics" (G.C. Exh. 6). Mr. Pansza concluded his letter with the advice that he remained available to discuss the matter further with AFGE. 20b. On that same day, Mr. Pansza called Mr. Moore about union matters other than the DMV checks; and Mr. Moore asked about Mr. Pansza's response to his November 2 letter. Mr. Pansza responded that he had just sent his "response to (Mr. Moore's) proposals in writing that day" (Tr. 150). Apparently neither party made suggestions for dates for negotiations. See Tr. 151. 21. On November 19, 1984, Robert Williamson, Vice-President of Local 1157 made a telephone call to Mr. Pansza and suggested that the parties try "bargaining by objectives" as to "outstanding issues" (Tr. 156). Mr. Pansza agreed. 22. On November 20, 1984, Mr. Moore telephoned Mr. Pansza about Mr. Pansza's November 19 letter (see finding 20a, above). Their conversation lasted 25 minutes. They agreed that no negotiation of ground rules for bargaining over the DMV checks was necessary, and that negotiations would be verbal. Mr. Pansza also presented a hypothetical question to Mr. Moore and asked what Local 1157 would propose in regard to it. Mr. Moore indicated that he did not want to discuss the hypothetical "at that time". See Tr. 155, 180 and 181. Mr. Pansza told Mr. Moore that he assumed that the proposal of Local 1157, as of that time, was "not to do DMV checks" (Tr. 181). 23. After the November 20, 1984 conversation and on the same day, Mr. Moore sent a letter to Mr. Pansza. He wrote this letter of "clearly state AFGE's position" that "as an employee of the agency or as a representative of AFGE (he) received no prior notification that either DMV or criminal checks would be conducted by the agency" and that he "initially became aware of this 'new policy' some 5 to 10 minutes prior to (his) telephone request to bargain of October 31, 1984 (when he) was approached by the Motor Vehicle Operator foreman for (his) driver's license number" (G.C. Exh. 7). He further stated that it was Local 1157's "position that specific concerns should be presented during bargaining" and again requested bargaining over the issue of the DMV checks (G.C. Exh. 7). Mr. Pansza received this letter on November 27. 24. On November 21, 1984, both Mr. Moore and Mr. Gantt received from Mr. Keltner correspondence entitled "Advance Notice of Separation for Disqualifcation." The basis for the proposed actions was their driving AAFES vehicles after the suspensions of their licenses and without making any attempt to bring the suspensions to the attention of AAFES. Both were placed on administrative leave for the stated reason that their positions required them to operate AFFES vehicles. About the same time Mr. Moore had gone to the California DMV and straightened out his license situation. He showed his license to management. Whereupon he was brought back to work and his Advance Notice extended. 25. On November 29, 1984, Mr. Pansza wrote to Jose R. Tavares, President of Local 1157, and offered to negotiate the impact of DMV checks on employees who operate AAFES vehicles as a part of their assigned duties. He stated that management would be prepared to negotiate on December 3, 1984, at 1400 hours, in the Office of the Distribution Facility Manager. Local 1157 did not receive this letter until about 1500 hours on December 3, too late to attend the suggested meeting. 26. Also on November 29, 1984, Mr. Pansza telephoned Mr. Moore for help with certain employees, and they began discussing the DMV checks. At this time Mr. Moore had received his Advance Notice of Separation and Mr. Pansza proposed to Mr. Moore that management "hold off" making a "final decision on the separation until Management could receive all information that was relevant to that case and any items that might adversely impact in the final decision to separate" (Tr. 160). Mr. Moore agreed. Then Mr. Pansza offered some dates, in response to Mr. Williamson's request for "bargaining by objective," that were acceptable to Mr. Keltner so that Mr. Moore could check to see if Mr. Tavares would be available. Mr. Moore agreed to check with Mr. Tavares on the dates. The conversation then ended. 27. On December 3, 1984, Mr. Pansza received a telephone call from Mr. Williamson regarding "outstanding issues." Mr. Pansza reminded him that management wanted to meet on his proposals to bargain by objectives sometime during the week of 10 December. Mr. Pansza and Mr. Williamson agreed to a meeting on December 12, 1984. 28. On December 4, 1984, Mr. Pansza wrote a letter to Mr. Moore confirming an agreement to meet on "DMV checks" on December 12, 1984, at 1300 hours in Mr. Keltner's office. 29. On December 11 or 12, 1984, a meeting occurred in the office of Mr. Keltner attended by Mr. Keltner and Mr. Pansza representing management, and Mr. Tavares, Mr. Williamson, and Mr. Moore representing Local 1157. The parties discussed general matters. Time ran out before the matter of the DMV checks was reached. Apparently neither party made an effort to advance the matter of the DMV checks on the agenda. 30a. On December 12, 1984, Mr. Gantt received his "Final Notice of Separation for Disqualification" (G.C. Exh. 28). /6/ It was dated December 10 and was effective on that date. The basis for the action was that on September 30, 1984, his driver's license was suspended by the State of California; he made no attempt to bring this to the attention of AAFES and had been unlawfully driving AAFES vehicles after the date of his license suspension; and that driving AAFES vehicles is a requirement of his position. 30b. Mr. Gantt had been employed with AAFES Oakland since August, 1977, and for the last 16 or so months of his employment was a Tool and Parts Attendant in Building 99. When he first started out as a Tool and Parts Attendant, Mr. Gantt shared driving duties to pick up parts. "About maybe seven months" (Tr. 187-188) after he started, Mr. Daniels and he had a conversation about his staying in the Tool and Parts Shop. Mr. Gantt understood Mr. Daniels to mean that he was not to make pickups and so, thereafter, a "Eugene Pouquez and sometimes a mechanic" drove to make the pickups (Tr. 188). Mr. Daniels apparently meant that Mr. Gantt was not to leave the Tool and Parts Shop to seek out Mechanics and find out what parts they needed, but rather was to wait for them to come to the shop and give him this information, as there was only one Tool and Parts Attendant "at that particular time" (Tr. 313). Mr. Gantt admitted that Mr. Daniels did not tell him not to drive vehicles to pick up parts. See Tr. 193. 30c. Mr. Gantt admitted that he had a suspended driver's license as charged in the "Final Notice". He had it reinstated on the same day he received the notice. About a week after Mr. Daniels asked to see his driver's license and learning that his job was in jeopardy because it was suspended, Mr. Gantt went to Mr. Keltner and told him that all he had to do to regain his license was to "pay (his) tickets off" to the State of California (Tr. 192). He asked Mr. Keltner for a salary advance of $200 to pay off the tickets. This request was denied. Mr. Gantt paid off the tickets, regained his license, and showed it to Mr. Keltner on December 12, the same day he received the "Final Notice" firing him. 31. On December 14, 1984, Mr. Pansza called Mr. Moore, at Mr. Moore's request. The conversation lasted for 20 to 25 minutes. The conversation involved the DMV checks and a request for data by Local 1157. Mr. Moore requested a copy of the Record of Supervisor's Investigation on Mr. Gantt. Mr. Pansza agreed to provide it; and it was picked up later that day. Mr. Pansza asked Mr. Moore if he had any proposals for management on the DMV checks or if Mr. Moore wanted to talk about it so that they could "do something about it and get going" (Tr. 168). Mr. Moore responded: "I just don't want to talk about it today" (Tr. 168). 32. By letter dated December 18, 1984, Mr. Moore communicated with Mr. Keltner. Mr. Moore states in his letter that "the parties have not bargained on the impact and implementation" of the DMV checks; reminds Mr. Keltner that the agency had acknowledged its obligation to bargain; proposes a bargaining date of December 27; requests that Mr. Gantt be returned to duty and that no further DMV Checks be conducted prior to bargaining; and seeks from management a "written policy containing the authorization (for DMV checks) for review prior to our meeting" (G.C. Exh. 10). 33. By letter, dated January 3, 1985, Mr. Keltner responded to the letter of Mr. Moore on December 18, 1984. Mr. Keltner stated that: "On at least three occasions, management has offered to discuss AFGE concerns about the subject matter and AFGE has either failed to meet or refused to discuss the matter" (G.C. Exh 11). Mr. Keltner denied the request by Local 1157 for no further DMV checks prior to bargaining and the return to duty of Mr. Gantt. 34. On January 11, 1985, the Union, through Mr. Tavares, filed its initial unfair labor practice ("ULP") charge in the instant case. The charge was apparently drafted on January 2, 1985, and was delivered to Mr. Pansza on January 8, 1985. 35. On January 15, 1985, Mr. Keltner sent to Mr. Moore a memorandum entitled "Advance Notice of Suspension" (G.C. Exh. 17). The memorandum refers to a Record of Supervisor's Investigation ("RPI") prepared on December 18, 1984. It proposes to suspend Mr. Moore for 60 calendar days on the basis of four specifications: (a) being charged on December 29, 1982 with speeding, failing to report same to the agency personnel manager as required by agency regulations, and failing to appear in court to answer the charge; (b) being convicted on charges of driving while drunk and hit and run and having his license revoked, none of which he reported to the agency personnel manager, as required by agency regulations, and knowingly continuing to drive AAFES vehicles with a revoked license; (c) geing charged with making a U turn, failing to appear in court to answer these charges, and failing to report these offenses to the agency personnel manager as required by agency regulations; and (d) being convicted on September 20, 1983, with drunk driving, having his license again revoked, failing to report the suspension to the agency personnel manager as required by agency regulations, and continuing to drive AAFES vehicles with a suspended license. 36a. On January 16, 1985, a bargaining session took place in the office of Mr. Keltner over the matter of the DMV checks. It lasted approximately two hours. Mr. Keltner and Mr. Pansza represented management. George Taylor and Mr. Moore represented Local 1157. All four participants testified at the hearing. Mr. Taylor was the most credible witness and where there is a conflict in the testimony as to events at the January 16 session, I credit the version of Mr. Taylor. He seemed to have better recall of specifics than did the management witnesses, perhaps because he took notes at the session. His version of events is more credible than that of Mr. Moore for the same reason, and for the additional reason that Mr. Taylor had no self interest in the outcome of this litigation, whereas Mr. Moore did, as found in footnote 4, above. 36b. The conversation at the January 16 meeting began with some generalities being passed back and forth. Mr. Moore "opened the meeting with several inquiries to the intent of the policy, the personnel policy, who the policy covered, and what authority did the Agency have for the policy" (Tr. 108). Mr. Moore then stated what he felt should be negotiable, such as: when the DMV checks should take place, you know, whether quarterly or semiannually; and he wanted the Union to be aware of that. He was also stating that he felt that it wasn't necessary to run checks on everyone, such as the MHE operators. He felt that was just necessary for the over-the-road operators, the people driving the big rigs. See Tr. 62. Mr. Moore possibly also stated that the DMV checks should be limited to what the State allows. 36c. Mr. Keltner responded with "five proposals" (Tr. 63), all made at the same time. The first was that the checks be random. The second was that it was an automatic termination for those caught driving with a suspended license. The third was that if an operator's license was suspended and an admission made of this fact to management, management would treat the matter on a case-by-case basis. The fourth was that the check apply to all vehicle operators. 36d. The final "proposal", and the one supporting count 5 of the complaint, was "to drop (or withdraw) the ULP" (Tr. 64, 73, and 77). Mr. Keltner never said: "I refuse to bargain with you because you have filed the ULP" (Tr. 73). 36e. Mr. Taylor at first testified that the "proposals" were Mr. Keltner's "proposals to settlement of the problem" (Tr. 78) and that he "assumed that it (the proposal to drop the ULP) was a bargaining proposal" (Tr. 79). Later he testified that he interpreted this proposal to mean that Local 1157 had to withdraw the ULP before management would do any bargaining. See Tr. 85. mr. Taylor is currently Chief Steward for Local 1157. At the time of the Januray 16 meeting he was "relatively new in the Union" and "did not fully understand bargaining" (Tr. 85). Reflecting back, at the hearing, Mr. Taylor still believes that the ULP proposal was "intended . . . to be a stipulation prior to bargaining" (Tr. 85-86). 36f. After Mr. Keltner presented the five proposals of management, the union team was asked what their counterproposal would be. The union team argued that management "not do any DMV checks whatsoever" (Tr. 171). The management team felt that the parties were at impasse and was going to terminate the meeting. At this point the union team asked for 24 hours to caucus and submit counterproposals. The management team apparently agreed. See Tr. 171 and 66. 37. On January 17, 1985, Local 1157 submitted written counterproposals to management. 38. On Wednesday, January 30, 1985, Mr. Moore called Mr. Keltner and they discussed when the parties "would be able to negotiate on the DMV checks" (Tr. 326). Mr. Keltner told him that management "would try for Friday" (Tr. 326). 39. On February 2, 1985, a labor-management meeting took place. Representing management were Mr. Keltner and Christine Vader, a Personnel Management Specialist who had replaced Mr. Pansza upon his transfer elsewhere. Mr. Moore represented Local 1157. A discussion was held on the counterproposals on the DMV checks which were proposed by Local 1157 on January 17. The meeting was then "stopped" (Tr. 111) after it was pointed out that an agency regulation (ESM-15-12) possibly had been changed and it needed clarification from headquarters. It was also pointed out that the unfair labor practice charge had been filed (on January 11); that it was being handled by Luther Jones, the Assistant General Counsel for AAFES, located in Dallas; and that further negotiations would be with him. 40. On February 4, 1985, Mr. Moore received from Mr. Keltner a "Final Decision of Suspension" (G.C. Exh. 18). This decision noted that no reply had been received to the advance notice (see finding 35, above) and that the suspension, without pay, would be effective from March 18 to the close of business on May 16. Mr. Moore testified that the 60 calendar day suspension was actually served "(b)etween March and July of 1985" (Tr. 118). As of the date of the hearing, Mr. Moore's driving privileges were again suspended. He is still working for AAFES Oakland, but is not driving its vehicles. 41. On February 19, 1985, Mr. Moore called Mr. Keltner and wrote to Mr. Jones, requesting the Exchange Service Manual regarding DMV checks. 42. On February 27, 1985, Mr. Moore asked Mr. Keltner to negotiate the DMV checks. Mr. Keltner told him that he would have to talk to Mr. Jones or Ms. Vader and that "because there had been a ULP filed" the negotiations on the DMV checks have been turned over to Mr. Jones (Tr. 328-329). 43. On March 5, 1985, Mr. Moore, as Chief Steward for Local 1157, wrote to Mr. Jones about the negotiations on the DMV checks. See G.C. Exh. 13. The purpose of the letter was to outline the parties' current position on the subject. 44. On March 21, 1985, Mr. Taylor called Mr. Keltner to ask who would be at the meeting on the DMV checks. Mr. Keltner was unaware of the meeting which had been set up by Mr. Jones. 45. On March 22, 1985, Mr. Jones wrote to Mr. Moore to inform him that he was management's designated representative in the matter of driving records of certain employees in Building 99; acknowledged Mr. Moore's March 5 letter and the conclusions and assertions therein; and declined to "necessarily accede to same" (G.C. Exh. 14). 46a. On March 21 or 22, 1985, a negotiation session was held on the DMV checks. Mr. Jones appeared for management. Mr. Taylor and Mr. Moore appeared for Local 1157. The "ground rules for that particular meeting had been set up so that it would be he (Mr. Jones) and I (Mr. Taylor), one-on-one basis" (Tr. 67). Mr. Jones objected to Mr. Moore's presence. Mr. Taylor offered to have Mr. Moore remain outside the room so that Mr. Taylor could "caucus" as necessary with him (Tr. 68). Mr. Moore "knew the history of the case" (Tr. 68). Mr. Taylor was "a beginner on the particular situation" (Tr. 68). Mr. Jones laid a proposal on the table; stated that it was "management's proposal number 1, their only proposal"; and then Mr. Jones "got up and left" (Tr. 69). The proposal stated: Any employee who operates a vehicle or MHE while on duty, whether or not included in the job description, if discovered, by whatever means to be without driving privilieges by suspension, revocation, or any other other status, shall be immediately placed on a LWOP status for 3 working days. Such employee shall have 3 working days to recover driving privileges. Failure to remove driving privileges within such a time period subjects the employee to further administrative discipline, up to and including discharge or disqualification as provided in the regulations. Such 3 working days LWOP period does not bar management from taking appropriate disciplinary action for violations of regulations requiring such driving privileges even though such privileges are reinstated within the 3 working day period. See G.C. Exh. 19. 46b. On March 22, 1985, Mr. Moore wrote to Mr. Jones to explain his advisor status; to protest that (though suspended) he was still on the negotiation team; and to object to Mr. Jones walking out of the last bargaining session. He requested that bargaining resume on March 23. He wrote that he would continue to serve as an advisor, in the descretion of Local 1157. 47. On March 28, 1985, Mr. Jones wrote to Mr. Taylor and Mr. Moore to object to Local 1157's failure to imform his as to just who was to represent Local 1157 in negotiating the DMV checks. He wrote that he was management's representative and that "(m)anagement continues to remain available for negotiations" (G.C. Exh. 15). He wrote that he felt ground rules were necessary and suggested that a meeting place off base be used for negotiations because of a dispute as to whether a union steward, such as Mr. Moore who was on suspension, nevertheless had the right to come onto the base because of union representation status. 48. In a letter dated "April 4, 1984," but apparently written in 1985, Robert Williamson, Vice President of Local 1157, replied to Mr. Jones' letter of March 28, 1985, to Mr. Taylor and Mr. Jones. See R. Exh. 19(a) and (b) and 20. Among other things, he wrote that the "management #1" proposal on the DMV checks concerns an issue "which raises significant questions that appear to have national impact;" "rises to the level of recognition;" and "should be presented as a proposal to the national bargaining table" (R. Exh. 19(a)). 49. On April 18, 1985, Mr. Jones replied to Mr. Williamson's letter of April 4. Mr. Jones complained, among other things, that he was still unclear as to who, from Local 1157, had the authority to negotiate regarding the DMV checks and as to whether Local 1157 wished "to discontinue bargaining at the local level" (R. Exh. 20(d)). Mr. Jones requested, among other things, clarification as to who would represent Local 1157 at the DMV negotiations and as to the union's position that the matter was not negotiable at the local level. Mr. Jones wrote that "management remains available to negotiate, as required by law" (R. Exh. 20(f)). 50. On April 22, 1985, Mr. Jones wrote to Mr. Tavares to confirm ground rule understandings reached on April 18 and, among other things, asked for clarification as to who would represent Local 1157 during the negotiations on the DMV checks and as to whether Local 1157 intended to terminate such bargaining pending discussions with its National Office. Mr. Jones wrote that he "would appreciate a response from (Mr. Tavares') office on these matters and, assuming these matters to be resolved, we can proceed with negotiations on the matter of the diring record checks with less difficulty" (R. Exh. 21(b)). 51. On June 20, 1985, Mr. Moore wrote to Mr. Jones that he understood from Mr. Taylor that Mr. Jones would be returning to Oakland during the month of June with regard to negotiations on the DMV checks, and asked for confirmation of "the earliest possible date to continue and hopefully conclude this issue" (R. Exh. 22). This letter was mailed to Mr. Jones on June 24. 52. On October 17, 1985, Tony Harris, Senior Steward for Local 1157, wrote to Mr. Jones to advise him of the union's willingness to bargain and attempt resolution of the matters pending in this case. 53. On October 25, 1985, Mr. Jones replied to the Harris letter of October 17. He agreed to meet and proposed meeting for one hour on November 7. 54. A meeting was held on November 7, 1985, to settle the pending case. Management declined to settle on the terms discussed, but sought "further discussions" in a letter from Mr. Jones to Mr. Taylor dated November 14. See R. Exh. 32 and Tr. 70-71. 55. At the hearing on November 22, 1985, Mr. Moore conceded that management was "still in bargaining" with Local 1157 over the DMV checks and had never said: "No, we will not bargain with you" (Tr. 139). Mr. Moore expressed the view that the negotiations had taken "a long time" (Tr. 139). 56. Management had repeatedly stated its availability to negotiate, with the caveat "as required by law" (R. Exh. 20(f)). Discussion and Conclusions A. The General Counsel has not established by a preponderance of the evidence /7/ that Respondents, on January 16, 1985, conditioned bargaining on Local 1157's withdrawing an unfair labor practice charge, as alleged in count 5 of the second amended complaint. The most credible evidence adduced in this case demonstrates that the reference made by a management agent to the withdrawing of Local 1157's unfair labor practice charge was couched in terms of its being a management "proposal," the last of five, all presented at the same time. See findings 36c and d, above. As Respondents argue, "a proposal creates options and does not foreclose bargaining" (R.Br. 46). It invites counterproposals which the parties apparently agreed, prior to the close of the January 16 bargaining session, would be made by Local 1157. See finding 36f, above. Such counterproposals were made, on the very next day. Bargaining over them was continuing even up until the time of the hearing. /8/ B. The General Counsel had established, by the preponderance of the evidence, that AAFES Oakland violated Sections 7116(a)(1) and (5) of the Statute, as alleged in counts 6 and 7 of the second amended complaint, when it unilaterally changed the working conditions of AAFES Oakland by expanding the investigation of driving records to include checking with the California Department of Motor Vehicles on all employees driving AAFES vehicles. As the General Counsel points out at page 13 of his brief, it is "black-letter law that an employer may not unilaterally change an established pracitce that has ripened into a condition of employment without first affording the exclusive represtative notice and an opportunity to bargain over the change," citing Army and Air Force Exchange Service, (AAFES), Fort Carson, Colorado, 10 FLRA 235, 241 (1982) (change in three-year practice regarding approval of sick leave required notice and an opportunity to bargain); Department of Defense Dependants Schools, Mediterranean Region (Madrid, Spain); and Zaragonza High School, Zaragonza, Spain), 19 FLRA 395, 396 (1985) (change in one and a half years practice regarding issuance of travel orders required notice and an opportunity to bargain); Department of Defense, Army and Air Force Exchange Service, Fort Eustis Exchange, Fort Eustis, Virginia, 20 FLRA 248, 267-268 (1985), (change in practice regarding union representatives' access to worksites required notice and an opportunity to bargain). It is undisputed that up until Octover 31, 1984, AAFES Oakland had followed a practice of investigating the driving license status of only its "over-the-road drivers. See Tr. 300-301 and 320 and finding 9a, above. This practice had been in existence for at least 5 1/2 years when, an October 31, management agents of AAFES Oakland acted on a decision, made that day, to expand the investigation to include all employees who dirve AAFES vehicles, including Mechanics and Tool and Parts Attendants. Not until steps were taken to implement the expanded investigation, by collecting the information necessary to conduct it, did an official of Local 1157 become aware of the change in the past practice. It so happened that Mechanic Richard Moore was the first such employee approached for the information. And it so happened that Mr. Moore was the Chief Steward of Local 1157 at that time and an official authorized to receive notice of changes in working conditions. No other official of Local 1157 had recieved notice of this change. And Mr. Moore was not approached first in order to give notice to Local 1157. He was approached as merely one of the Mechanics being subjected to the investigation. He was simply asked by a supervisor for his driver's license and other information necessary to the investigation. Mr. Moore immediately inquired as to the purpose of the request and was merely told that the supervisor was "doing a driver's license check." See footnote 5 to finding 11c, above. Mr. Moore immediately requested bargaining as to the implementation and impact of the change upon unit employees. Several days later, on November 2, Local 1157 requested from management the written authorization under which this investigation was being made. Local 1157 had reason to believe that it might be covered by an agreement of the parties as to background checks on new hires and probationary employees. See finding 14, above. On December 18, 1984, Local 1157 again sought this basic information from management. See finding 32. Even at the first bargaining session at which this matter was discussed, on January 16, 1985, Local 1157 had not been given this information. See finding 36b, above. It was not until this January 16 session that AAFES Oakland finally gave to Local 1157 any proposals on how the change was to operate. By that time, management had already completed its first investigation and, as a direct result thereof, discharged a Tool and Parts Attendant. See finding 30a, above. Respondents admit that, "without much question," this Authority has held that bargaining is required "at a point in time preceding the exercise of . . . management rights" (R.Br. 52). In order for the opportunity to bargain to be "meaningful" this Authority has also ruled that "adequate" notice to a union is required; and this notice must be "specific" and "clear enough" to provide this "meaningful opportunity." See, for example, Department of the Army, Harry Diamond Laboratories, Adelphia, Maryland, 9 FLRA 575, 576 (1982), holding that notice of a decision to collect parking fees was inadequate because it failed to provide notice as to who would be collecting the fees, a matter of "great concern" to the union. The General Counsel is here conceding that there "may have been actual notice" and argues, correctly, that the adequacy of that notice is the issue. See Tr. 362. While Local 1157 did receive actual notice, on the day steps were taken to implement the change in past practice, it was not informed of any details. For example, Local 1157 did not know: the intent of the new policy; or under what authority the expanded investigations was being made; or the consequences -- matters of obvious concern to Local 1157. Thus, it is concluded that the actual notice given fell short of the adequate notice required for a union to formulate meaningful proposals, and a violation of Section 7716(a)(1) and (5) of the Statute was established. /9/ 1. Respondents raise a number of defenses in their brief, none of which are persuasive. The first is that the action taken on October 31, 1984, was "to initiate an investigation" and that this act "does not equate automatically to a change in working conditions." (R.Br. 49). The brief points out that "the request for license verification occurred only once" and that there was "no act to implement a rule permitting continuous license verifications." See R.Br. 49. A reading of the entire record does not support this argument. It is obvious from the record that AAFES Oakland made a decision, on October 31, 1984, to verify the licenses of all drivers of AAFES Oakland vehicles not once, but on at least a random basis, in the future. As late as January 16, 1985 AAFES Oakland was denying the proposal of Local 1157 not to change its past practice. At the bargaining sessions immediately prior to the hearing, AAFES Oakland was clearly not acquiescing in a return to the past practice from which it departed by its action on October 31, 1984. The October 31 action expanding the investigation of license verifications to a new group of employees and leading to the termination of one employee and the suspension of another, was an action "directing affecting 'the work situation and employment relationships' of bargaining unit employees," the Authority definition for "working conditions." See National Association of Government Employees, Local R-5-168, 19 FLRA 552, 553 (1985) and American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council, 8 FLRA 347, 354-355, 357-360, 363, and 365 (1982). In the latter case, the Authority held to be negotiable union proposals relating to investigations because they might lead to disciplinary actions and, thus, were directly concerned with conditions of employment. It has been demonstrated, here, that the first investigation led directly to disciplinary actions and thus, the change relating to investigations equates to a change in working conditions for the new group of unit employees subjected to the investigations. 2. Next, Respondents argue that the action taken by management here was "taken due to an emergency" and quotes Section 7106(a)(2)(D) of the Statute that "nothing . . . shall effect that authority of any management official . . . in accordance with applicable laws . . . to take whatever actions may be necessary to carry out the agency mission during emergencies" (R.Br. 50). The nature of the so-called "emergency" is claimed to be that "employees had, and possibly were, continuing to drive vehicles without licenses with the result of grave danger to the public and heavy liability to the Army and Air Force Exchange Service for the acts of those employees" (R.Br. 50). The "agency mission," however, is not to enforce its regulations, or State laws concerning driving without a license. Nor does avoiding possible agency liability of a monetary nature from acts of its employees rise to the level of its "mission." The fact that AAFES Oakland had not checked the licenses of its employees for a period of a year, as of the date of the hearing, suggests that AAFES Oakland is not all that concerned about the matter, or at least not so concerned that it can be found that the last check was done during an "emergency." By now an additional number of employees may be driving AAFES Oakland vehicles without licenses. Yet AAFES Oakland is doing nothing about it, and continues to negotiate with Local 1157 over the matter with no indication that haste is of great importance, as will be discussed below. 3. Next, Respondents argue that the point at which a union must be given an opportunity to bargain, under Section 7106(b)(2), is not defined, but must be an "act" (R.Br. 52), and that there is "no evidence that any act was committed in the exercise of a management right prior to notification" (R.Br. 53). What the record evidence here shows is that an "act" and "notification" occurred almost simultaneously. The "act" was the action taken on October 31, 1984, by a management official to collect information from Mechanics, Tool and Parts Attendants and a Car Washer, which information was necessary to verify the status of their California driving privileges. This was a change in an established past practice. Such information had not been collected, in the past, from such employees for such a purpose. See finding 9a, above. The "notification" was to the Chief Steward of Local 1157 and was given to him, coincidentally on October 31, because he was the first Mechanic approached for the needed information. As already discussed, such happenstance notification, with no details or specifics as to how the changed practice was to work, is inadequate to provide a union with a meaningful opportunity to bargain procedures management will observe in exercising its authority under the Statute. 4. Next, Respondents argue that "the act of collecting information from the employees, even if prior to notification, had de minimis effect on the bargaining unit." See R.Br. 54, emphasis by Respondents. In a number of recent decisions the Authority has articulated the cirteria for judging whether a change is of a de minimis nature. See for example, Department of Health and Human Services, Social Security Administration Region V, Chicago, Illinois, 19 FLRA 827 (1985). The first criterion used by the Authority is the nature of the change (i.e., the extent of the change in work duties, location, office space, hours, employment, loss of benefits and/or wages, etc.). Here the change was the investigation of the driving licenses of a group of employees never before subjected to such investigations, or the collection of information necessary to make the investigations. As a direct result of the change, two employees were found to have violated agency regulations by failing to report to the agency that their licenses were suspended -- one lost his employment; and the other lost wages for 60 days. The second criterion is the temporary, recurring or permanent nature of the change, that is, the duration and the frequency with which it affects unit employees. It is not clear how the change here in issue can be characterized. As to the "over-the-road" drivers, AAFES Oakland investigates annually. As to the drivers here at issue, management has proposed only that the investigations be "random" in nature. See finding 36c, above. The third criterion is the number of unit employees affected or foreseeably affected by the change. Two were affected by the first investigation. Potentially, about 18 could be affected (see finding 9a, above), as that is the total number of Mechanics, Tool and Parts Attendants, and Car Washers who came under the first investigation as a result of the change. The fourth criterion is the size of the bargaining unit. The appropriate size here is that of Local 1157 because the parties have agreed to bargaining at the local level over local changes -- the type of change here involved. Since the record here is devoid of any reliable evidence of the size of Local 1157's bargaining unit, I take judicial notice of the fact that the January, 1985 edition of Union Recognition in the Federal Government, shows the number to be 67. See footnote 4 to finding 6a, above. The fifth criterion is the extent to which the parties have established, through negotiations or past practice, procedures and appropriate arrangements concerning analogous changes in the past. The parties have negotiated, in Article 29 of their collective bargaining agreement, concerning "supervisory investigation of alleged acts of misconduct." See finding 5b, above. The case here at issue also involves supervisory investigations. And driving AAFES vehicles without a license and without imforming management, as required by agency regulations, is analogous to an act of misconduct." Former Authority Member William J. McGinnis, Jr. has expressed the view that there should be a sixth ctiterion: When would the implementation of the change involve or adversely affect unit employees. That is, if the change is to be implemented in stages or if there is no initial adverse effect on unit employees from the implementation of the change, would post implementation bargaining permit the parties to satisfactorily negotiate appropriate arrangements for employees adversely affected by the change prior to such effect. See 19 FLRA at 835. Here, an adverse impact was felt by one employee within 9 days of the decision to make the change. See findings 10 and 18, above. I know of no decision, and none has been cited to me, where a change resulting in the discharge of one employee and a suspension of another was held by the Authority to be of a de minimis nature. Indeed, in Department of Transportation, Federal Aviation Administration, Washington, D.C. (DOT), 20 FLRA 474 (1985), the Authority held that the mere transfer of two employees to other duty stations, requiring long commutes, was more than de minimis. Se 20 FLRA at 476-477. /10/ All criteria considered, I conclude that the change here at issue was more than de minimis. 5. Next, Respondents argue that the point at which a union must be given an opportunity to bargain, under Section 7106(b)(3), is "that point at which it can be said that employees were 'adversely affected.'" See R.Br. 53 and 55-56. Respondents argue that this effect "occurred on November 14, 1984." See R.Br. 55. November 14 was the day on which AAFES Oakland's supervisory foreman received back from the California DMV the information as to which employees had suspended licenses. See finding 19, above. Even accepting, arquendo, that November 14 was the critical date, I still cannot conclude that Local 1157 was given a meaningful opportunity to formulate proposals, by that date, and as that statutory opportunity has been interpreted by the Authority. As Respondents acknowledge, the Statute requires that a union be allowed "a reasonable amount of time to allow it to investigate and formulate proposals and engage in meaningful bargaining." See R.Br. 55, citing Bureau of Governmental Financial Operations Headquarters, (BGFO), 11 FLRA 334, 345 and see also 346. In BGFO, management gave the union written notice which explained the change to be made, the purpose, and the effect on employees (see 11 FLRA at 341, finding 7), and five working days to reply (11 FLRA 345). During this period, management denied the union certain information which the union requested. Under these circumstances, the Authority adopted the conslusion of Administrative Law Judge Eli Nash, Jr. that the union lacked an opportunity "to develop meaningful bargaining proposals" (11 FLRA at 345). Here, Local 1157 was given no written explanation of the change and learned of it only by happenstance. Local 1157 immediately requested bargaining, and also management's "written policy containing the appropriate authority" for the change. See finding 14, above. As late as December 18, Local 1157 was still requesting such basic information. See finding 32, above. As late as November 20, the Chief Steward of Local 1157 was unclear as to whether the checks being made were "DMV or criminal" ones. See finding 23, above. If criminal, Local 1157 apparently had an agreement with AAFES Oakland that prevented background checks of already-hired employees. See finding 14, above. Although Respondents agrue that Local 1157 had "10 working days" notice, which was "sufficient" (R.Br. 55), in fact one of the so-called 10 working days would have been a Federal Holiday, (November 11, Veterans Day). Furthermore, one employee felt an adverse impact from the change before November 14. He felt it on November 9, when he was placed on administrative leave, "pending the completion of an investigation surrounding the suspension of (his) driving privileges." See finding 18, above. Using November 9 as the date, this further reduces the notice time. In any event, I am not persuaded by Respondents' argument that an agency can delay giving a union an opportunity to bargain until employees are actually adversely affected. This argument ignores the holding of this Authority that a "reasonable foreseeable" adverse effect triggers the bargaining obligation. See, most recently, United States Department of the Treasury, Internal Revenue Service, Chicago, Illinois, 20 FLRA 46, 48 (1985), citing U.S. Government Printing Office, 13 FLRA 203, 204-205 (1983). Here, it was "reasonably foreseeable" by management, on October 31, 1984, that it would find additional employees who were driving AAFES vehicles without valid licenses. See finding 10, above. It was management's concern over having already found two such employees which led to the October 31 change expanding the investigation of this matter to include all drivers of AAFES vehicles. 6. Finally, Respondents argue that Local 1157 "declined to proceed promptly" in a situation where AAFES Oakland had "a good faith belief" that employees driving AAFES vehicles were not reporting loss of their driver's permits, and there was an "imperative demand for promptness" (R.Br. 56 and 58). Respondents charge that Local 1157 "delayed negotiations for a period of 78 claendar days, or 56 working days" -- from October 31, 1984 to January 17, 1985. See R.Br. 57-58. After an examination of the record, I cannot attribute such a delay entirely to Local 1157. See findings 11c, 11d, 11e, 12, 14, 20, 21, 22, 23, 25, 26, 27, 28, 29, 31, 32, 33, 36, and 37. What appears to have happened here is that management was trying to make the Chief Steward of Local 1157 commit the Union to proposals, over the telephone and by letter, before Local 1157 had obtained sufficient information to make intelligent ones. Local 1157, on the other hand, was trying to avoid this; to obtain information necessary to bargaining; and to get a date for a face-to-face bargaining session of the parties' negotiation teams. Up until January 16, Local 1157 had nothing in writing from management as to the new policy; no management official had given Local 1157 any specifics or details about the new policy; and management still had not given Local 1157 the twice-requested written authority under which the new policy had been implemented. Respondents point to be fact that at a bargaining session held on December 12, 1984 on a number of issues, Local 1157 "failed to raise the matter (of the DMV checks)" (R.Br. 58). The fact is that the issue of the DMV checks was on the agenda; but time ran out before this issue was reached. There is no evidence that either Local 1157 or AAFES Oakland tried to advance the issue even though, now, AAFES Oakland argues that the matter was one of "overriding exigency" (R.Br. 58). Perusing the record further, it is evident that the charge of failure "to proceed promptly" cannot be levied solely to Local 1157. It took 12 days for management to reply to a union letter of November 2, 1984, requesting bargaining. See findings 14, 17, 20a. Then management, by letter, set a bargaining date for December 3 which Local 1157 did not receive until it was too late to attend the meeting. It then took management 16 days to respond to a December 18, 1984 letter from Local 1157 again requesting a bargaining session; and even that letter set no date for a bargaining session. See findings 32 and 33. On January 16, 1985, the first bargaining session was set and, for the first time, management gave Local 1157 some proposals on how the change would operate. On the next day, January 17, Local 1157 gave counterproposals to management. Thirteen days passed, whereupon a union official called a management one to check on when the bargaining would resume. See findings 37 and 38. A bargaining session took place on February 2 and was suspended, in part because clarification was needed from agency headquarters on a regulation. See finding 39. Twenty-five days after the February 2 bargaining session, on February 27, a union official tried to get negotiations going again. See finding 42. On March 5, Local 1157 wrote to the Dallas management official to whom bargaining authority had been passed; and he did not reply to the letter for 17 days. See findings 43 and 45. On March 21 or 22, 1985, a negotiation session was held. The management representative walked out because of what he considered a violation of a ground rule -- namely, that the union showed up with an extra person on the team, and one who was on suspension from his job. Local 1157 tried to explain the matter in a letter dated March 22 and sought resumption of negotiations on March 23. Negotiations were then delayed while the union and management exchanged correspondence raising various issues, none of which appear to have been spurious or for the purpose of delay. See findings 46b and 47-50. On June 20, 1985, a union official mailed a letter to management in which an early resumption of negotiations was sought. See finding 51. The record is silent as to whether management responded to the June 20 letter. On October 25, the management negotiator did respond to an October 17 letter from a union official, expressing the union's willingness to bargain. See findings 52 and 53. A bargaining session was held on November 7, 1985 -- 15 days before the hearing. This recitation of dates and union attempts to bargain illustrates the irony of Respondents' argument attempting to fix the delay on bargaining in this case solely on Local 1157. There is blame to share. Had there been an "overriding exigency," as is now claimed (R.Br. 56), surely Respondents would have tried harder to expedite matters. C. The remedy requested by the General Counsel, as to the unilateral change, will be recommended, in part, and denied, in part. The General Counsel seeks a cease-and-desist and bargaining order, as to both Respondents, and a posting Order, limited to posting at the Oakland Army Base. These are appropriate remedies, on this record, except that the order will be limited to AAFES Oakland. No involvement by Respondent AAFES was shown. What occurred here was a locally-ordered, locally-implemented change. It will be recommended that the complaint be dismissed as to AAFES. The General Counsel also seeks a recision of the change, which was unilaterally made. This will also be recommended, as there is no proof that this would disrupt the operations of AAFES. Since the first investigation on October 31, 1984. AAFES Oakland has not found it expedient to order another investigation although it obviously intends to continue the investigations. For five and a half years, it followed the past practice, with no serious disruption of the agency mission. In that time only four drivers were found to have been driving AAFES vehicles without a valid license. The General Counsel also seeks "status quo ante" relief by a cleansing of the records of Mr. Gantt and Mr. Moore, and the reinstatement of Mr. Gantt with the accumlated leave and seniority he has lost since being terminated. See Tr. 28-29. This I do not find to be appropriate because both employees apparently suffered their suspension or termination because of their actions in violating agency regulations. In making these recommendations as to what is referred to as a "status quo ante" remedy, I have applied the five-prong test set out by in Federal Correctional Institution, 8 FLRA 604, 606, (1982), and which is as follows: (1) whether, and when, notice was given to the union by the agency concerning the action or change decided upon; (2) whether, and when, the union requested bargaining on the procedures to be observed by the agency in implementing such action or change and/or concerning appropriate arrangements for employees adveresely affected by such action or change; (3) the willfulness of the agency's conduct in failing to discharge its bargaining obligations under the Statute; (4) the nature and extent of the impact experienced by adversely affected employees; and (5) whether, and to what degree, a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations. The General Counsel argues that all of the above factors "weigh in favor of ordering a status quo ante remedy" (G.C. Br. 21). I agree as to factors (1), (2), (3) and (5). As has already been discussed, adequate notice was not given to Local 1157; Local 1157 immediately requested bargaining after learning of the change; the acts of AAFES Oakland were willful; and a return of the status quo ante would not be disruptive of the agency's operations. As to factor (4), however, the "nature" of the impact was felt only by employees who had apparently violated agency regulations. I do see how it would be in the public interest to award them relief from such self-inflicted wounds. The Union is sufficiently vindicated by a return to the past practice. Ultimate Findings and Recommended Order Respondent AAFES Oakland has violated Section 7116(a)(1) and (5) of the Statute by unilaterally changing a past practice of investigating the driving privileges of only "over-the-road" drivers and expanding it to include all employees who drive agency vehicles. Respondent AAFES Oakland did not condition bargaining on the withdrawal of an unfair labor practice charge. Respondent AAFES took no part in the actions alleged in the complaint. Pursuant to 5 CFR 2423.29 and Section 7118 of the Statute, it is hereby ordered that: 1. AAFES should be, and hereby is dismissed as a Respondent. 2. AAFES Oakland shall cease and desist from: (a) Changing working conditions of unit employees by expanding the enforcement of regulations requiring employees to maintain a valid driver's license and to report the loss of said license to include employees other than the motor vehicle operators at the Army and Air Force Exchange Service (AAFES), Oakland Army Base, without providing prior notice and an opportunity to bargain over the impact and implementation of this change to Local 1157. (b) In any like to related manner interfering with, restraining, or coercing their employees in the exercise of rights assured by the Federal Service Labor-Management Relations statute. 3. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Rescind the change in the practice at the AAFES Oakland Army Base in Oakland, California, which expanded the enforcement of regulations requiring employees to maintain a valid driver's license and to report the loss of said license, and restore the pre-existing policy at that facility. (b) Upon request, meet and bargain with Local 1157 over the impact and implementation of any intended changes in the practices of enforcement of regulations requiring employees to have a valid driver's license and to report the loss of said license. (c) Post at all facilities of AAFES Oakland 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 head of AAFES Oakland and shall be posted and maintained for 60 consecutive days thereafter, in conspicious places, including bulletin boards and other places where notices to employees are customarily posted. The head of AAFES Oakland shall take reasonable steps to insure that such Notices are not altered, defaced, or covered by any other material. (d) Pursuant to 5 CFR 2423.30, notify the Regional Director, Region IX, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. ISABELLE R. CAPPELLO Administrative Law Judge Dated: April 10, 1986 Washington, D.C. --------------- FOOTNOTES$ --------------- (*) The Judge also concluded, contrary to the allegations of the General Counsel in the amended complaint in this case, that Respondent AAFES Oakland did not condition bargaining on the Union's withdrawal of its unfair labor practice charge and that Respondent AAFES took no part in the actions alleged in the complaint. Noting the absence of any exceptions to these determinations of the Judge, we will dismiss the complaint as to those allegations and will not discuss them further in this decision. (1) Section 7116 provides, in pertinent part, that: (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency -- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; . . . (or) (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter . . . (2) The statutory provision requiring parties to bargain concerning the impact and implementation of changes is found at Section 7106(b), and reads as follows: (b) Nothing in this section (defining management rights) shall preclude any agency and any labor organization from negotiating -- . . . (2) procedures which management officials of the agency will observe in exercising any authority under this section; or (3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials. (3) The following abbreviations will be used in this decision. "Tr." refers to the transcript. "Jt." refers to the joint exhibits; "G.C. Exh." refers to the exhibits of the General Counsel; and "R. Exh." refers to those of Respondent. "G.C. Br." refers to the brief of the General Counsel and "R. Br." reders to that of Respondent. Both parties seek corrections to the transcript in appendices to their briefs and have filed no objections to each other's corrections. The corrections are accordingly made, pursuant to 29 CFR 2423.19(r), with two exceptions. The General Counsel seeks to amend line 2 of page 175 by substituting a "3" for a "2")' but no "2" there appears. Respondent seeks to amend line 10 of page 49 by substituting "DMC" for "DMV"; but no "DMC" there appears. Respondent's Exhibit 35 is incorrectly marked as Respondent's 36 in the original exhibits. This has been corrected. (4) Counsel for the General Counsel estimated that there were "(a)bout 600 at Oakland", in response to a question by the Judge, during his opening statement (Tr. 28). This statement was unrebutted. However, the unfair labor practice charges filed in this action by Local 1157 aver that the number of employees employed at AAFES Oakland was only "500" (G.C. Exh. 1(a) and (b)) and "500 plus" (G.C. Exh. 1 (c)). The January 1985 edition of Union Recognition in the Federal Government, published by the Office of Personnel Management at page 163 lists AFGE/Local 1157, at the Oakland Army Base as having "67" members in the bargaining unit. (5) This finding is based on the testimony of Mr. Daniels. See Tr. 305-306. The testimony of Mr. Moore conflicted with that of Mr. Daniels as to some aspects, such as where the conversation took place, at what hour, and as to whether Mr. Daniels first sought the driver's license information from an employee other than Mr. Moore. See Tr. 99. The testimony of Mr. Daniels as to the hour was confirmed by another witness (see Tr. 146); and I find that Mr. Daniels was a less self-interested and more credible witness than Mr. Moore. Mr. Moore's self interest is predicated on the fact that the relief sought in this case includes an order that his "personnel file be cleaned up" (Tr. 29), to delete references to his 60-day suspension for violating agency regulations. Respondents argue that this conversation between Mr. Moore and Mr. Daniels constituted notice to Local 1157. See R.Br. 53-54. This conversation, as described by Mr. Daniels at Tr. 306, went like this: Q. Now, was there any -- are you able ro recall in more exactitude the actual conversation that occurred at that time between you and Mr. Moore? A. That was it; I just gave it. I asked him -- I said, "Can I have your driver's license?" And he said, "What do you want with it?" And I said, "I'm doing a driver's license check." He said, "I don't have it. It is in my wife's purse." So he said, "I know the number." So he gave me the number. I wrote it on a piece of paper, and he gave me his address his date of birth and that was it. (6) Mr. Gantt at first testified that he received it on December 14. See Tr. 190. His later testimony indicates that he received it on December 12. See Tr. 192. (7) This is the statutory burden of proof. See 5 U.S.C. Sections 7118(7) and (8). (8) In view of the conclusion reached on this point, it is unnecessary to resolve other issues formulated by Respondents as to counts 5 and 7 of the complaint. (9) The General Counsel appears to draw an adverse inference from Respondents' willingness to bargain even though they deny an obligation to do so. See G.C.Br. 9, I decline to draw such an inference and, to the contrary, believe this demonstrates a commitment to the bargaining process that should be encouraged. (10) It should be noted that the Authority, in the DOT case, "not(ed) particularly," that the agency did not dispute the allegation that the unilateral change was more than de minimis. See DOT, 20 FLRA 477. Here, respondents are raising the issue but with little apparent enthusiam for it. See Tr. 350 and R.Br. 54. 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 change working conditions of employees by expanding the enforcement of regulations requiring employees to maintain a valid driver's license and to report the loss of said license to include employees other than the motor vehicle operators at the Army and Air Force Exchange Services (AAFES), Oakland Army Base, without providing prior notice and an opportunity to bargain over the impact and implementation of this change to American Federation of Government Employees, Local 1157 (AFGE). 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 rescind the change in the practice at the AAFES Oakland Army Base in Oakland, California, which expanded the enforcement of regulations requiring employees to maintain a valid driver's license and to report the loss of said license, and restore the pre-existing policy at that facility. WE WILL, upon request, meet and bargain with AFGE, Local 1157, over the impact and implementation of any intended changes in the parctice of enforcement of regulations requiring employees to have a valid driver's license and to report the loss of said license. (Agency or Activity) Dated: . . . . . By: Signature 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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region IX, whose address is: 530 Bush Street, Suite 542, San Francisco, CA 94108 and whose telephone number is: (415) 556-8106, FTS 8-556-8105.