26:0814(97)CA - HHS, Region II, New York, N.Y., and NTEU and NTEU, Chapter 218 -- 1987 FLRAdec CA



[ v26 p814 ]
26:0814(97)CA
The decision of the Authority follows:


 26 FLRA No. 97
 
 UNITED STATES DEPARTMENT OF HEALTH 
 AND HUMAN SERVICES, REGION II 
 NEW YORK, NEW YORK
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION 
 AND NATIONAL TREASURY EMPLOYEES 
 UNION, CHAPTER 218
 Charging Party
 
                                            CASE NO. 2-CA-60162
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached decision in the
 above entitled proceeding, finding that the Respondent had engaged in
 certain unfair labor practices as alleged in the complaint, and
 recommending that the Respondent be ordered to cease and desist from
 those practices and to take certain affirmative actions.  The Respondent
 filed exceptions to the Judge's decision and the General Counsel filed
 an opposition to the exceptions.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), we have reviewed the rulings of the Judge at the
 hearing and find that no prejudicial error was committed.  The rulings
 are hereby affirmed.  Upon consideration of the Judge's decision, the
 exceptions, opposition and the entire record, we adopt the Judge's
 findings and conclusions.  We also adopt the Judge's recommended
 remedial Order and shall further order the Respondent to bargain on
 request with the Charging Party concerning timekeeping procedures.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, we order that the United States
 Department of Health and Human Services, Region II, New York, New York
 shall:
 
                        1.  Cease and desist from:
 
    (a) Failing and refusing to negotiate with National Treasury
 Employees Union, Chapter 218, the authorized collective bargaining
 representative of employees in the Office for Civil Rights, Region II,
 with regard to changes in timekeeping procedures for unit employees.
 
    (b) In any like or related manner, interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Upon request, bargain with National Treasury Employees Union,
 Chapter 218, concerning the change in timekeeping procedures for unit
 employees instituted in January 1986.
 
    (b) Post at its New York Regional Office 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
 Regional Director and shall be posted and maintained for 60 consecutive
 days thereafter, in conspicuous places, including all bulletin boards
 and other places where notices to employees are customarily posted.
 Reasonable steps shall be taken to ensure that such notices are not
 altered, defaced or covered by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region II, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply therewith.
 
    Issued, Washington, D.C., April 30, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean, McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND 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 fail or refuse to negotiate with National Treasury
 Employees Union, Chapter 218, the authorized bargaining representative
 of employees in the Office for Civil Rights, Region II, with regard to
 changing timekeeping procedures for those employees.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce our employees in the exercise of the rights assured them by
 the Federal Service Labor-Management Relations Statute.
 
    WE WILL, upon request, bargain with National Treasury Employees
 Union, Chapter 218, the authorized collective bargaining representative
 of employees in the Office for Civil Rights, Region II, concerning the
 change in timekeeping procedures instituted in January 1986.
                                       (Agency/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 II,
 whose address is:  26 Federal Plaza, Room 3700, New York, New York 10278
 and whose telephone number is:  (212) 264-4934.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No.: 2-CA-60162
 
 UNITED STATES DEPARTMENT OF HEALTH AND 
 HUMAN SERVICES, REGION II, NEW YORK, NEW YORK
    Respondent
 
                                    and
 
 NATIONAL TREASURY EMPLOYEES UNION AND 
 NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 218
    Charging Party
 
    Stephen A. Sunshine, Esq. and
    Andrew Rudyk, Esq. on the supplemental brief
    For the Respondent
 
    Todd C. Park, Esq. with Philip J. Kellett, Esq. and
    Myrna Ocasio, Esq. on the briefs
    For the Charging Party
 
    Susan M. Roche, Esq.
    For the General Counsel
 
    Before:  SALVATORE J. ARRIGO
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This case arose under the Federal Service Labor-Management Relations
 Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. section 7101
 et. seq.
 
    Upon an unfair labor practice charge filed by the above captioned
 Charging Party against the above captioned Respondent, the General
 Counsel of the Authority, by the Regional Director for Region II, issued
 a Complaint and Notice of Hearing alleging Respondent violated section
 7116(a)(1) and (5) of the Statute by failing and refusing to negotiate
 with the Charging Party concerning a change in employee sign-in/sign-out
 procedures at Respondent's New York Office for Civil Rights.
 
    A hearing on the Complaint was conducted in New York, New York at
 which all parties were represented by counsel and afforded full
 opprotunity to adduce evidence, call, examine and cross-examine
 witnesses and argue orally.  Briefs and supplemental briefs were filed
 by all parties and have been carefully considered.
 
    Upon the entire record in this case, my observation of the witnesses
 and their demeanor and from my evaluation of the evidence, I make the
 following:
 
                             Findings of Fact
 
    At all times material herein the National Treasury Employees Union
 (NTEU) has been the exclusive collective bargaining representative of
 various of Respondent's employees including employees located in
 Respondent's New York Regional Office working in its Office for Civil
 Rights.  NTEU Chapter 218 (herein referred to as the Union) has at all
 material times been a constituent entity within NTEU and an agent of
 NTEU acting on its behalf in representing Respondent's New York Regional
 Office employees.
 
    At least since sometime in 1982 employees in Respondent's New York
 Office for Civil Rights have worked on a flextime basis arriving between
 7:00-9:30 a.m. and leaving work between 3:30-6:00 p.m.  From 1982 until
 April 1984 these employees were required to sign in and sign out
 sequentially each day on a time sheet which was kept approximately 50
 feet from the office entrance door on a table next to the secretary to
 the Regional Manager of the Office for Civil Rights, David A. Coronado.
 At the end of each work day the time sheet was given to the office
 timekeeper for recording.  Regional Manager Coronado was assigned a
 training detail in October 1983.  When he left the Office for Civil
 Rights for the training detail Walter Patterson was made Acting Regional
 Manager until April 1984 during which time Patterson retained the
 timekeeping system then in effect.
 
    In April 1984 Patterson was replaced by Carmen Rockwell as Acting
 Regional Manager.  Rockwell changed the timekeeping procedure by
 allowing all employees to keep a daily attendance record at their desks,
 indicating the time in and time out each day for a two week period and
 then turning over the attendance records to the supervisor for review
 and approval.  The supervisor would then give the attendance records to
 the timekeeper for transcription onto timecards.
 
    In July 1984 Coronado returned to the office for two and one-half
 weeks and discovered Rockwell had implemented a different timekeeping
 system.  /1/ Accordingly, on August 3 as he was about to return to his
 detail, Coronado sent a memorandum to Rockwell regarding the matter,
 stating, in relevant part:  /2/
 
          "While reviewing the time records I immediately became aware
       that the sign-in method used by the rest of the Department in the
       Region was no longer being used in OCR.
 
          "After further research, I was able to discover some
       documentation on the implementation of the change, but nothing
       giving a rationale for changing a system that functioned perfectly
       well, which complied with OPM requirements for a time accounting
       method and which kept us in conformance with the rest of the
       Department in the Region on an important labor-relations matter.
       /3/ Neither was I able to determine why you seemingly ignored the
       advice of the Region's Labor Relations staff, whom I have always
       found to be quite knowledgeable and helpful and whose advice
       always turned out to be in our best interest.
 
          "I would strongly urge that you follow the advice given you by
       Labor Relations and return immediately to the sign-in system that
       was utilized here when you arrived.  Again, the system has always
       worked well.  Also, since employees are required to sign in
       sequentially based on their time of arrival, it does provide the
       "affirmative evidence" required by OPM in 5 CFR 610.404, /4/ while
       the individual sign-in system that exists here now clearly does
       not, since each employee turns in this sheet on a biweekly basis
       and since the time sheets really constitute nothing more than
       self-serving statements which, as you know, under the rules of
       evidence, can never be accepted as evidence.  Furthermore, OCR is
       a part of the Department and to the extent possible, we should do
       everything we can to work with the other OP DIVS and STAFF DIVS in
       the Region to demonstrate that we are, especially in such
       important areas as labor relations.  Finally, the Labor Relations
       staff in this region is excellent and they have served us well and
       I can not imagine a situation in which they would give us advice
       that would ever prove anything but beneficial to us.  Asking for
       their advice after the fact and then ignoring it once it has been
       given without even determining their rationale for having given
       it, is not sound practice and not at all like you . . ."
 
    The memorandum indicated that a copy was sent to Coronado's
 supervisor Nathan Dick, Director of the Office for Program Operations
 for the Office for Civil Rights and Deputy Director of the Office for
 Civil Rights.
 
    Regional Manager Corando returned from his detail on September 6,
 1985 and found Rockwell had not complied with his memorandum and the
 timekeeping method she implemented was still in effect.  According to
 Coronado, since he felt the Rockwell system did not comply with the
 requirements of 5 CFR 610.404, on December 12, 1985 he issued the
 following memorandum to his staff:
 
          "Effective January 2, 1986, all employees, including
       supervisory staff, will be required to sign in and out on a
       central sign in sheet on a daily basis as a means for recording
       the time of their arrival and departure from work.  The system of
       individuals monitoring their own time and attendance records and
       turning them into supervisors on a biweekly basis, will no longer
       be valid.
 
          "This return to the system used nationwide by OCR and by our
       sister Agencies in the Region, will bring us into conformance with
       OPM regulations.  It will also make it easier for the timekeeper
       to post time and attendance on a daily basis, as she is required
       to do by Departmental regulations.
 
          "The sign in sheet will be located on the small cabinet
       immediately to the left of Ms. Cropper's desk."
 
    Coronado's memorandum indicated a copy was sent to Shop Steward
 Khaleel.  Although Khaleel testified he did not receive a copy of the
 memorandum from Coronado, /5/ he nevertheness was shown a copy of the
 document by a unit employee on December 12.  By letter dated December
 23, 1985, Khaleel made a demand to Coronado that Respondent bargain with
 the Union on the matter.  The letter read:
 
          "Your memo of December 12 has been brought to my attention.  My
       name appears as a c.c. on the copy in my possession;  however, I
       have yet to receive such a c.c. through official channels.
 
          "The Union invokes its rights under Article 61 of the
       negotiated agreement to negotiate the proposed change in the sign
       in/out procedure.  Until such time that negotiations have been
       completed, the proposed change will not be considered as
       implemented per provisions of Article 61.
 
          "Please contact me at extension 2672 in order to arrange and
       appropriate negotiation schedule."
 
    By memorandum to Khaleel dated December 30, Coronado refused to
 bargain on the matter, stating:
 
          "By your memo to me dated December 23, 1985 you requested
       negotiations on the signing of sign in/out sheets.
 
          "As noted in my December 12 memo, the change involves only that
       all employees sign a single sheet rather than individual sheets.
       The nature of employees' work remained the same.  The requirement
       to sign in and out did not change.  The mechanics of signing in or
       out did not change.  The time needed to sign in or out did not
       change in any measurable way.  Therefore, the change in sign
       in/out sheets is de minimus (sic) and does not give rise to duty
       to bargain over impact and implementation."
 
    The change in employee timekeeping as set forth in Coronado's
 December 12 memorandum was put into effect on January 2, 1986 without
 further communication with the Union.
 
                            Other Regulations.
 
    OPM Bulletin No. 610.35 (item 12 and 13)
 
          "12.  Because employees working flexible schedules will arrive
       and depart at varying times, it is important that a system exist
       within each agency for providing accountability for hours worked
       to ensure the credibility of the program from the perspective of
       the employees, management, and the public.
 
          "13.  Agencies are advised to review each program to determine
       the most appropriate time accounting system.  One procedure that
       is recommended for consideration by agencies is seriatim, or
       sequential, sign-in/sign-out sheets.  Under seriatim timesheets,
       each employee records his or her time of arrival and, separately,
       departure in order, one following the other.  This seriatim
       procedure is a simple method of assuring accountability for those
       employees that work under flexitime schedules."
 
    GAO Policies and Procedures Manual, Title 6, (selected portions of
 section 17.2 and 17.3)
 
    Section 17.2
 
          "For each civilian employee, a record of time in pay and nonpay
       status or piecework completed shall be maintained daily by one of
       the following time accounting methods:
 
          1.  Time and attendance recording by designated employees (time
       and attendance clerks) who take no part in preparing the payroll
       or distributing the paychecks.
 
          2.  Electromechanical devices, e.g., time clocks.
 
          3.  Sign-in/sign-out sheets showing times of arrival and
       departure.  If the sign-in/sign-out method is used, it must be
       seriatim recording.  Under the seriatim sign-in/sign-out method,
       employees sign their name and record their time of arrival in
       order, one right after the other.  When departing from work,
       employees again sign their name and record their time of departure
       in order, one right after the other.  Sign-in/sign-out sheets with
       the employees name preprinted on the sheet are not acceptable.
 
          "In all cases adequate surveillance shall be maintained to
       assure proper and accurate time accounting.  Also, adequate steps
       must be taken to assure that time and attendance data are
       accurately reflected on the time and attendance reports sent to
       the payroll office."
 
    Section 17.3
 
          "For agencies whose employees are on a flexible or compressed
       work schedule, there are several time accounting methods that, if
       properly administered and controlled, will satisfy the
       requirements of subsection 17.2.  Use of one of the following
       methods is recommended to meet those requirements:  time and
       attendance clerks and supervisors who closely monitor arrival and
       departure, sign-in/sign-out sheets by time of arrival and
       departure (seriatim time accounting), time clocks or
       mini-computers with plastic employee identification cards and
       turnstiles.  Agencies have the latitude to select the method that
       suits them best.  However, if the conventional time and attendance
       recording method by a timekeeper is selected in a flexible or
       compressed work schedule environment, stricter management control
       must be implemented to insure coverage throughout the day as
       described in the preceeding (sic) paragraph.  In audits and
       reviews of payroll systems, auditors will evaluate the method
       selected to assure proper usage."
 
                        Discussion and Conclusions
 
    Counsel for the General Counsel contends Respondent violated the
 Statute by failing to notify the Union about its intention to change
 timekeeping procedures and failing and refusing to bargain with the
 Union on the change.  Counsel for Respondent contends Respondent was
 under no obligation to negotiate with the Union over the change since
 timekeeping procedures are specifically provided for by Federal statute
 and therefore not within Respondent's duty to bargain.  /6/ Respondent
 essentially argues that it was privileged to effectuate the change
 without bargaining with the Union since the timekeeping procedure
 existing immediately prior to the change was not in compliance with law
 because, in its view, that system did not constitute a time-accounting
 method which would provide affirmative evidence that each employee
 subject to flextime worked the proper number of hours as required by 5
 CFR section 610.404, supra.  In his brief counsel for Respondent,
 relying on Office of Personnel Management (OPM) Federal Personnel Manual
 Bulletin No. 610.35, items 12 and 13 (August 19, 1982) and General
 Accounting Office (GAO) Policies and Procedures Manual, Title 6,
 sections 17.2 and 17.3 (dated December 30, 1982), asserts section
 610.404 requires that sign-in/sign-out time recording be in the form of
 a single sheet seriatim recording.  Counsel cites the OPM and GAO
 provisions in his brief, although neither was raised, relied upon or
 even mentioned at the hearing, thus depriving counsel for the General
 Counsel or counsel for the Union the opportunity to address the
 applicability of these documents to the situation herein.  In order to
 provide the parties an opprotunity to address such argument, on November
 17, 1986 I issued an Order permitting the filing of supplemental briefs
 limited to the affect of the above cited regulations on the issues
 herein including whether such regulations were in effect at material
 times and the impact they may have upon 5 CRF 610.404 and upon granting
 a status quo ante remedy if a violation of the Statute should be
 ultimately determined to have occurred.  Thereafter all parties filed
 supplemental briefs.
 
    With regard to the question of notice to the Union, although Khaleel
 did not receive a personal copy of Regional Manager Coronado's December
 12, 1985 memorandum announcing changing the system of employee time
 recording on January 2, 1986 back to the pre-April 1984 procedure,
 Khaleel was shown a copy of the announcement on December 12 by a unit
 employee.  Thereafter on December 23 Khaleel made a timely request to
 bargain on the matter.  In these circumstances I conclude no violation
 of section 7116(a) (1) and (5) regarding failure to provide timely and
 adequate notice of the change has been established.  See U.S. Department
 of Labor, Occupational Safety and Health Administration, 20 FLRA 148
 (1985) and Veterans Administration, Veterans Administration Medical
 Center, Muskogee, Oklahoma, 19 FLRA 1054 (1985) citing United States Air
 Force v. FLRA, 681 F.2d 466 (6th Cir. 1982).
 
    Nevertheless, I conclude Respondent violated the Statute when it
 refused to negotiage on the change of employee timekeeping.  Regional
 Manager Coronado's refusal of December 30, 1985 was based upon his
 evaluation that the change involved had only a de minimis impact on
 employees and accordingly no obligation to bargain existed.  However,
 the Authority has previously found that management policies regarding
 recording of employee time and attendance constitutes a condition of
 employment the substance of which is a negotiable matter.  American
 Federation of Government Employees, AFL-CIO, Local 1603 and Department
 of the Navy, Navy Commissary Store, Patuxent River, Maryland, 16 FLRA 96
 (1984) and Planners, Estimators and Progressmen Association, Local No. 8
 and Department of the Navy , Charleston Naval Shipyard, Charleston,
 South Carolina, 13 FLRA 455 (1983).  The Authority has also held that
 where, as here, the decision to make a change was itself negotiable, the
 extent of the impact of the change in conditions of employment on unit
 employees is not relevant.  Department of Defense Dependents Schools,
 Mediterranean Region (Madrid, Spain);  and Zaragoza High School,
 (Zaragoza, Spain), 19 FLRA 395 (1985) and U.S. Army Reserve Components
 Personnel and Administration Center, St. Louis, Missouri, 19 FLRA 290
 (1985).  Thus Respondent was obligated to bargain with the Union before
 changing the timekeeping system, a condition of employment in effect for
 18 months under Acting Regional Manager Rockwell and for 3 months under
 Regional Manager Coronado, unless somehow otherwise privileged to take
 such unilateral action.
 
    Respondent argues that the system in effect prior to January 1986 was
 not in compliance with law and accordingly it was compelled to change
 the system and the procedure it implemented did comply with law.
 Assuming arguendo that the timekeeping system instituted by Acting
 Regional Manager Rockwell was not in compliance with law, this did not
 privilege Coronado to simply revert to the prior timekeeping system
 without bargaining with the Union.  5 CFR section 610.404 merely
 requires that the time-accounting method established will provide
 "affirmative evidence" of hours worked.  Coronado's system was not the
 only timekeeping procedures which could have conceivably complied with
 these regulations.
 
    It is well settled that to the extent that an agency has discretion
 regarding a condition of employment, that matter is whether the agency's
 duty to bargain.  National Treasury Employees Union and Internal Revenue
 Service, 21 FLRA 730 (1986);  National Treasury Employees Union and
 Department of the Treasury, U.S. Customs Service, 21 FLRA 6 (1986);  and
 Boston District Recruiting Command, 15 FLRA 720 (1984).  It is entirely
 possible that if given the opportunity to negotiate, the Union might
 have proposed some system other than the Rockwell procedure or the
 matter ultimately resolved by adoption of a system other than Coronado's
 sequential sign-in procedure.  Indeed, even the regulations referred to
 by Respondent do not compel use of only the seriatim sign-in, sign-out
 system.  Thus, OPM Bulletin No. 610.35, items 12 and 13, only recommends
 the use of a seriatim sheet, supra.  /7/ The GAO Policies and Procedures
 Manual, Title 6 sections 17.2 and 17.3, clearly indicates that any of
 several time accounting methods are acceptable and although various
 procedures are recommended, the regulation specifically provides for
 agency latitude in selecting which method to adopt, supra.
 
    In my view the question of which time recording method to use was
 negotiable within the limits of the GAO regulation and Coronado was not
 compelled to put into effect his preference without regard to the
 Union's right to negotiate before the change was made.  However, when
 Coronado refused to bargain on the matter on December 30 the Union was
 not given an opportunity to make a proposal prior to the change being
 effectuated.  Accordingly, I conclude Respondent's refusal to negotiate
 with the Union on changing employee timekeeping procedures and the
 unilateral implementation of the seriatim system on January 24, 1986
 violated section 7116(a)(1) and (5) of the Statute.  /8/
 
    As to a remedy, I shall not require Respondent to restore the status
 quo ante since to do so would place into effect a system of time
 recording which on its face would not comply with the provisions of GAO
 Policies and Procedures Manual, Title 6, section 17.2, a Government-wide
 rule or regulation within the meaning of the Statute.  /9/ Cf.
 Department of Transportation, Federal Aviation Administration,
 Washington, D.C., 20 FLRA 486 (1985).  Accordingly, in view of the
 entire foregoing I recommend the Authority issue the following:
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that United States Department of Health and Human
 Services, Region II, New York, New York shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to negotiate with National Treasury
       Employees Union, Chapter 218, the employees authorized collective
       bargaining representative, with regard to changing unit employees'
       timekeeping procedures.
 
          (b) In any like or related manner interfering with, restraining
       or coercing employees in the exercise of rights assured by the
       Federal Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
          (a) Post at its New York, New York Regional Office 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 Regional Director or a designee and shall be posted
       and maintained for 60 consecutive days thereafter, in conspicuous
       places, including all bulletin boards and other places where
       notices to employees are customarily posted.  Reasonable steps
       shall be taken to insure that such Notices are not altered,
       defaced, or covered by any other material.
 
          (b) Pursuant to section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region II, Federal
       Labor Relations Authority, 26 Federal Plaza, Room 3700, New York,
       New York 10278, in writing, within 30 days from the date of this
       Order, as to what steps have been taken to comply herewith.
 
                                       /s/ SALVATORE J. ARRIGO
                                       Administrative Law Judge
 
    Dates:  January 14, 1987
    Washington, D.C.
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Apparently Rockwell continued to serve as Acting Regional Manager
 during this period.
 
    (2) In the memorandum Coronado also pointed out to Rockwell some
 other practices related to employee time and attendance which appeared
 to him to be "contrary to Departmental and OPM policy."
 
    (3) Manley Khaleel, President of Chapter 218 and Shop Steward for the
 Office for Civil Rights, was employed by Respondent's Public Health
 Service as a Public Health Service Advisor.  He testified that where he
 is located employees are on flextime and the timekeeping method followed
 at that location for the past four years was for employees to write in
 the time of arrival and the time of departure on a paper which lists the
 10 to 15 employees in his unit alphabetically.  The document is not
 located adjacent to a secretarial station and is collected daily by a
 timekeeper.
 
    (4) 5 C.F.R. section 610.404, 48 FR 44060 (September 27, 1983),
 entitled "Requirement for time-accounting method", provides:
 
          "An agency that authorizes a flexible work schedule or a
       compressed work schedule under this subpart shall establish a
       time-accounting method that will provide affirmative evidence that
       each employee subject to the schedule has worked the proper number
       of hours in a biweekly pay period."
 
    (5) Coronado testified that the matter of distribution of copies of
 the memorandum was left to his secretary who did not testify in these
 proceedings.
 
    (6) Section 7103(a) (14) (c) of the Statute provides:
 
          "(a) For the purpose of this chapter . . . (14) 'condition of
       employment' means personnel policies, practices, and matters,
       whether established by rule, regulation or otherwise, affecting
       working conditions, except that such term does not include
       policies, practices, and matters . . . (c) to the extent such
       matters are specifically covered by Federal statute . . . "
 
    (7) Although my Order permitting supplemental briefs specifically
 asked that the question of whether the regulations were still in effect
 be addressed, only counsel for the General Counsel complied indicating
 OPM Bulletin No. 610.35 was no longer in effect when the conduct herein
 occurred.
 
    (8) As stated previously, counsel for Respondent raised the question
 of the applicability of the OPM and GAO regulations for the first time
 in his brief thus requiring, in the interest of due process, that I
 allow supplemental briefs be filed by the parties limited to this issue.
  However, Respondent in its supplemental briefs raised another new issue
 by contending for the first time that a proposal for non-seriatim time
 sheets would be nonnegotiable under section 7106(b)(1) of the Statute.
 I view the raising of such issue at this stage of the proceedings to be
 inappropriate and an abuse of orderly administrative processes which
 must be followed so as to avoid interminable litigation and therefore
 need not be addressed.  Cf. American Federation of Government Employees,
 AFL-CIO, Local 2000, 4 FLRA 601 (1980), fn. 2 at 608.  In any event, the
 Union by its December 22, 1985 letter, supra, did not propose that
 non-seriatim time sheets be used.  Rather it sought to negotiate
 generally on the change, albeit requesting that the status quo be
 maintained during negotiations.
 
    (9) Although the Charging Party requests a return to the status quo
 ante, in her supplemental brief counsel for the General Counsel
 indicated that a status quo ante remedy was no longer being sought by
 the General Counsel.
 
 
 
 
 
 
 
                                 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 fail or refuse to negotiate with National Treasury
 Employees Union, Chapter 218, the employees authorized collective
 bargaining representative, with regard to changing unit employees'
 timekeeping procedures.
 
    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.
                                       (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 II,
 whose address is:  26 Federal Plaza, Room 3700, New York, New York
 10278, and whose telephone number is:  (212)