33:0549(74)CA - - Information Agency, Voice of America and NFFE Local 1418 - - 1988 FLRAdec CA - - v33 p549



[ v33 p549 ]
33:0549(74)CA
The decision of the Authority follows:


33 FLRA NO. 74

UNITED STATES INFORMATION AGENCY
VOICE OF AMERICA
(Respondent)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES
LOCAL 1418
(Charging Party)

3-CA-70062

DECISION AND ORDER

October 28, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This unfair labor practice case is before the Authority on
exceptions filed by the Respondent to the attached Administrative
Law Judge's Decision.

The complaint alleged that the Respondent violated section
7116(a)(1) and (5) of the Federal Service Labor - Management
Relations Statute (the Statute) by failing and refusing to
negotiate in good faith over the substance of its decision to
reduce the preparation and cleanup times for radio technicians
from 15 minutes to 10 minutes and 5 minutes, respectively.

The Judge found that the Respondent was obligated to bargain
over the substance of its decision under section 704 of the Civil
Service Reform Act of 1978 (CSRA). The Judge concluded that the
Respondent violated the Statute by failing and refusing to
negotiate the changes in preparation and cleanup times. 

We conclude, in agreement with the Judge, that the
Respondent committed the unfair labor practices alleged in the
complaint. 1

II. Background

This case concerns radio technicians involved in the
operation of the United States Information Agency, Voice of
America, worldwide broadcasting network. The technicians are
"prevailing rate" employees who are covered by section 9(b) of
the Prevailing Rate Systems Act (the Act), Pub. L. No. 92-392,
codified at 5 U.S.C. 5343 (Amendments, note) (1982 ed.). See
International Communication Agency, 5 FLRA 97, 99 (1981).

As relevant to this case, section 704 of the CSRA provides
generally that those terms and conditions of employment and other
employment benefits, with respect to prevailing rate employees to
whom section 9(b) of Pub. L. No. 92-392 applies and which were
the subject of negotiation in accordance with prevailing rates
and practices prior to August 19, 1972, shall be negotiated on
and after October 13, 1978, in accordance with the provisions of
section 9(b) without regard to the provisions of the Statute.
Therefore, section 704 and section 9(b) require an agency to
continue to negotiate on matters which were the subject of
negotiation prior to August 19, 1972. See Columbia Power Trades
Council and United States Department of Energy, Bonneville Power
Administration, 22 FLRA 998 (1986). Section 704 and section 9(b)
are set forth in full in the appendix to this decision.

III. Administrative Law Judge's Decision

As noted by the Judge, this case concerns a change in radio
technicians' preparation and cleanup times implemented by the
Respondent. The Respondent's radio broadcasting facility operates
24 hours each day, 7 days a week. Radio technicians are assigned
to work schedules of 15-minute periods. Each assignment begins
and ends on the quarter  hour. From about 1965 until
October 1986, based on the Respondent's practice and agreements
of the parties, radio technicians were allowed a 15-minute period
at the beginning of their shifts, which was designated as
preparation or setup time, and 15 minutes of unscheduled time at
the end of their shifts, which was known as cleanup or breakdown
time. During this 20-year period, the Respondent adhered to the
practice except in emergencies.

In 1986, the Respondent concluded that changes should be
made in its broadcast operations in order to cut costs. By letter
dated August 27, 1986, management advised the Union of its plan
to reduce the scheduled breaks of radio technicians. The Union
replied in a letter dated August 28, 1986, stating that
management's plan concerning technicians' break time was
unacceptable. The parties met several times in September on the
matter but failed to reach agreement. On September 25, 1986, the
Union advised the Respondent's representative that the 15-minute
time periods at the beginning and end of the technicians' shifts
were subject to bargaining and that it sought to bargain over the
substance of the Respondent's decision.

The Respondent answered on September 29, stating that the
new preparation and cleanup schedule would not result in any
adverse effects and that the Union had refused to discuss the
matter or point out any adverse result of the change in
schedules. In a letter dated September 30, the Respondent advised
the Union that it intended to implement the changes in the
technicians' schedules on October 26, 1986. The Respondent also
informed the Union that it would discuss impact and
implementation proposals regarding the adverse effects of the
proposed changes.

The Union replied on October 2, 1986, stating that "the
Union deemed the 15 minute time period at the commencement of the
shift and its end was a subject of negotiation prior to August 9,
1972 (sic); that, under section 704 of the Civil Service Reform
Act, it was a mandatory subject of bargaining despite Section
7106 of the Statute." Judge's Decision at 11. The Union requested
bargaining and proposed that the Respondent maintain the status
quo.

The parties communicated several times between October 3 and
October 15 but failed to reach agreement. The Judge found that
even though the Respondent invited the Union to submit proposals
as to both the substance and the impact and implementation of the
decision, the Respondent consistently took the position that its
obligation to  bargain extended only to impact and
implementation. Judge's Decision at 11-12. The union insisted on
bargaining over the substance of the decision. When the parties
failed to reach agreement, the Respondent implemented the change
to 10 minutes of preparation time and 5 minutes of cleanup time
for radio technicians in the studio and recording areas. The
change was implemented on October 26, 1986.

The Judge determined that a finding of an unfair labor
practice in this case turned on whether the subject matter of the
Respondent's unilateral change was within the scope of the duty
to bargain under section 9(b) of the Act and section 704 of the
CSRA. The Judge examined the Act, the CSRA and the Authority's
decision in Bonneville Power Administration, 22 FLRA 998 (1986).
Judge's Decision at 14-15. He summarized the Authority's holding
in Bonneville, namely, "that under section 704 agencies must
continue to negotiate on terms and conditions of employment for
prevailing rate employees where those terms and conditions were
subject to negotiation prior to August 19, 1972," (footnote and
emphasis omitted) and concluded that this holding "conformed to
the legislative intent in framing section 704(.)" Id. at 15.

The Judge found that from about 1965 until October 1986,
radio technicians were allowed a 15-minute period at the
beginning of their shifts which was designated as preparation or
setup time and 15 minutes of unscheduled time at the end of their
shifts which was known as cleanup or breakdown time. In
particular, the Judge found that "Union Meeting Notes," which
were prepared by management, signed by both parties, and dated
July 7, 1966, showed that representatives of management and the
Union had discussed the matter of setup and breakdown time.
Section 2-29 of the meeting notes provided that "(a)ll
technician's (sic) assignments shall include adequate setup and
breakdown time." Judge's Decision at 6 (quoting notes of July 7,
1966). Similar "Union Meeting Notes," which were prepared by
management, signed by the parties, and dated October 11, 1967,
contained the same provision--Section 2-29--for setup and
breakdown time as the 1966 document. Id.

The parties executed their first basic agreement on August
15, 1968. No provision was included in the agreement concerning
preparation or setup and cleanup or breakdown time. However,
Article VIII, Section 2 of the agreement provided for the
continuation of established practices and policies in effect
before the agreement, including "conclusions reached at meetings
between the Union and Agency representatives as reflected in the
written meeting notes." Id. at 7, note 10.

According to the Judge, on August 12, 1971, after the
execution of the basic agreement, the parties agreed in writing
that "the management practice of scheduling a 15 minute period
before and immediately following an individual's assignment in
the studio and recording areas on a continual basis would
continue." Id. at 16 (emphasis in Judge's decision). The Judge
credited the testimony of the Union and management
representatives who were present at the August 12, 1971 meeting
and found that the testimony was consistent with the documentary
evidence which indicated that the subject matter of the dispute
was negotiated prior to August 19, 1972.

The Judge also found that during negotiations for a new
basic agreement in 1976, the Union proposed that a provision be
included granting 15 minutes for both preparation and cleanup
time. After several months of negotiations, the parties agreed to
a management proposal of 10 minutes preparation time and 5
minutes cleanup time. The new agreement was executed on March 31,
1977, and contained the management proposal.

After numerous complaints from technicians, the Union
requested that the 1977 agreement be changed so as to delete the
provision on preparation and cleanup time. The provision was
deleted from the 1977 agreement by an amendment dated April 19,
1977. At the time the amendment to the agreement was made,
management stated that in agreeing to delete the provision from
the agreement it was not also agreeing to return to the 15-minute
time periods. However, the Judge found that the practice of 15
minutes of preparation and of cleanup time for radio technicians
remained in effect until 1986.

Based on the record as a whole, the Judge found that prior
to August 19, 1972, the parties had negotiated on and agreed to
provisions concerning preparation and cleanup times for the radio
technicians in the studio and recording areas. He concluded,
therefore, that pursuant to section 704 of the CSRA the subject
continued to be a bargainable matter. He also found that the
management rights provisions of section 7106 of the Statute did
not relieve management of its obligation to negotiate over the
substance of the change from 15 minutes of preparation time and
15 minutes of cleanup time to 10 minutes and 5 minutes,
respectively.

Consequently, having found that the Respondent had a duty to
bargain under section 704, the Judge concluded that the
Respondent violated section 7116(a)(1) and (5) of the Statute by
failing and refusing to bargain with the Union  over the
decision to change preparation and cleanup times for radio
technicians in the studio and recording areas. He rejected the
Respondent's claim that it was excused from its obligation to
bargain by the Union's refusal to negotiate over impact and
implementation only. He found that the Respondent's willingness
to bargain extended only to the impact and implementation of the
change in preparation and cleanup time, while the Union insisted
on its right to bargain on the substance of the change as well.

The Judge's recommended order requires the Respondent to
rescind the change and reestablish the 15-minute preparation and
cleanup times. The order also requires the Respondent to notify
the Union of any anticipated change in preparation and cleanup
times and to bargain upon request on any decision to effectuate
that change.

IV. Positions of the Parties

The Respondent identified 5 "questions upon which exceptions
are taken" and lists 12 additional exceptions to the
Administrative Law Judge's Decision. 2 The Respondent's
exceptions can be summarized as three basic issues:

(1) Whether the Judge erred in finding that preparation and
cleanup time was a matter which was the subject of negotiation
between the parties prior to August 19, 1972. (Respondent's
Exceptions No. 1, 2, 3, 4, 5, 6(1), 9, 10, and 11);

(2) Whether the Judge's reliance on Columbia Power Trades
Council and U.S. Department of Energy, Bonneville Power
Administration, 22 FLRA 998 (1986), resulted in an application
of section 704 which is inconsistent with section 704 and
frustrates the policy of the Statute. (Exceptions No. 6(2) and
8); and

(3) Whether the Judge erred by ordering a status quo ante
remedy. (Exceptions No. 7 and 12).

The General Counsel contends with respect to the first issue
that the Respondent's exceptions merely amount to 
disagreement with the Judge's findings of fact. As to the second
issue, the General Counsel contends that the Judge correctly
applied the Authority's decision in Bonneville Power
Administration. Regarding the final issue, the General Counsel
asserts that the Judge properly ordered status quo ante relief
since the substance of the change at issue is negotiable and
there is no evidence of "special circumstances" which would
justify a denial of the status quo ante remedy.

V. Discussion

It is undisputed that these employees are prevailing rate
employees as described in section 9(b) of Pub. L. No. 92-392. It
is also undisputed that section 704 of the CSRA authorizes
prevailing rate employees to negotiate over conditions of
employment and other employment benefits which were the subject
of negotiation between the parties prior to August 19, 1972,
without regard to the provisions of the Statute. See Judge's
Decision at 13-14. Therefore, if the matter at issue in this
dispute was the subject of negotiation between the parties prior
to August 19, 1972, the Respondent was obligated to bargain with
the Union concerning the matter.

For the reasons set forth below, we find that the matter of
preparation and cleanup times for radio technicians was a matter
which was the subject of negotiation between the parties prior to
August 19, 1972. Consequently, the Respondent was obligated to
bargain over the substance of its decision to change preparation
and cleanup times for radio technicians. We conclude that the
Respondent violated the Statute when it failed and refused to
bargain with the Union on the substance of its decision to change
the technicians' preparation and cleanup times.

A. Preparation and Cleanup Time was Negotiated By the
Parties Prior to August 19. 1972

The Administrative Law Judge relied on meeting notes of
labor-management discussions during 1966 and 1967 to find that
the parties had negotiated over "adequate setup and breakdown
time" for all technicians prior to August 19, 1972. Judge's
Decision at 15. According to the Judge, although the parties did
not include a provision concerning setup and breakdown periods in
their first basic agreement in 1968, they did agree to continue
the established practices and policies in effect before the
agreement, including practices and policies which were reflected
in the written meeting notes. The Judge found that the
practice of providing 15 minutes for setup and breakdown periods
was reflected in the meeting notes of July 7, 1966 and October
11, 1967. The Judge indicated that his finding that the parties
had negotiated on this subject prior to August 19, 1972, was
supported by the inclusion of a specific provision concerning the
"continuation" of "a 15 minute period before and immediately
following an individual's assignment" in an agreement between the
parties dated August 12, 1971. Judge's Decision at 16.

The Respondent acknowledged that it "discussed" preparation
and breakdown time for technicians but asserts that the Judge
incorrectly concluded that it had "negotiated" over preparation
and clean-up time for technicians. See Judge's Decision at 15.
The Respondent argues that the Judge failed to find that the
parties could not have negotiated over the subject because
Executive Order 10988, which governed collective bargaining
relationships prior to January 1, 1970, and the parties' 1968
agreement, which incorporated the Executive Order, precluded
negotiations over matters affecting management rights.

We find that the record before us supports the Judge's
finding that the meetings between the parties during 1966 and
1967 constituted "negotiations" rather than mere "discussions" on
the subject of preparation and cleanup time. The record indicates
that meeting notes were prepared by management and signed by both
parties as "a summation of what was accomplished in the way of
agreement and/or disagreements" between the parties. Judge's
Decision at 5 (quoting notes dated July 7, 1966). The Judge
concluded that the parties agreed to continue the past practice
concerning preparation and breakdown times when they included the
July 7, 1966 and October 11, 1967 meeting notes by reference in
their 1968 agreement. The Judge also relied on a subsequent
written agreement dated August 12, 1971, as evidence of
negotiations on preparation and breakdown times prior t? August
19, 1972. We find that the Judge's conclusion is supported by the
record and that the Respondent's exceptions do not provide a
basis for a contrary conclusion.

The Respondent claims that the scope of bargaining between
the parties prior to August 19, 1972 was limited by Executive
Order 10988 and by the incorporation of that Executive Order in
the parties' 1968 agreement, and that those limitations continue
to define the parties' scope of bargaining. We find the
Respondent's argument to be unpersuasive. The specific terms of
section 704(a), as confirmed by the pertinent legislative
history, provide that  an agency is required to bargain
with an exclusive representative on terms and conditions of
employment about which it had negotiated with that exclusive
representative prior to August 19, 1972, without regard to
chapter 71 of title 5 (the Statute), to the extent that the
provisions of chapter 71 are inconsistent with section 704.
Section 704, therefore, preserves the scope of bargaining as
evidenced by the parties' negotiations, including the agreements
reached by those parties, prior to August 19, 1972. The
determining factor in deciding whether a matter is negotiable
under section 704 is whether it was negotiated prior to August
19, 1972. By its terms, section 704 makes no distinction among
subjects negotiated prior to that date based upon whether they
would or would not have been negotiable under Executive Order
10988. Nor is there any evidence in the legislative history of
section 9(b) of the Act or section 704 that Congress intended any
such distinction. In our view, section 704 preserves the scope of
bargaining which existed prior to August 19, 1972, regardless of
whether the matters would have been in conflict with prior
executive orders governing labor relations in the Federal
Government.

Moreover, in Bonneville, the Authority held that "(t)he
plain meaning of (section 704 (a)) is that it exempts provisions
of specified collective bargaining agreements from the
limitations on the scope of bargaining set forth in the Statute,
including the management rights provisions of section 7106."
Bonneville, 22 FLRA at 1005. Section 704 allows the parties to
negotiate without regard to the limitations of the management's
rights provisions of the Statute, where the matters proposed for
bargaining had been negotiated prior to August 19, 1972. Since
the parties may negotiate without regard to the limitations of
the management's rights provisions of the Statute, it would be
incongruous to conclude that the negotiation of preparation and
cleanup times is precluded by the management's rights provisions
in an executive order which was revoked in 1970, and has been
superseded by the Statute. Where, as here, parties have
negotiated matters which conflict with the management's rights
provisions of the Statute, section 704 preserves the right to
negotiate those matters in accordance with prevailing practices.
Further, because the Executive Order itself does not serve to
preclude bargaining over preparation and cleanup times, neither
can the provision in the 1968 agreement which incorporates the
Executive Order by reference.

The Respondent's exceptions to the Judge's conclusion that
the parties had "negotiated" preparation and cleanup time prior
to August 19, 1972 are rejected. We adopt the  Judge's
findings and conclusion that preparation and cleanup time for
radio technicians was negotiated by the parties prior to August
19, 1972.

B. The Judge Properly Applied Section 704 of the CSRA

The Respondent contends that the Judge's reliance on the
Authority's decision in Bonneville Power Administration, 22 FLRA 
998 (1986), results in an application of section 704 that is
inconsistent with the intention of that section to preserve
"unchanged" the scope and substance of collective bargaining
relationships. The Respondent states that in Bonneville, the
Authority preserved "unchanged" the scope of bargaining between
the parties. It asserts that the Judge's decision, in contrast,
establishes a scope of bargaining which is inconsistent with that
which previously existed between the parties in this case. That
is, the Respondent maintains that the Judge's application of
section 704 changes the parties' scope of bargaining by adding an
entirely new subject matter. See Respondent's Brief at 9-13. We
reject this contention and find that the Judge properly applied
section 704 to preserve the Agency's duty to bargain on
preparation and cleanup times.

The Judge did not improperly apply the Authority's
Bonneville decision to enlarge the scope of bargaining. In
Bonneville, the Authority found provisions which had not been
included in prior agreements to be negotiable under section 704
because the subject matters of those provisions had been
negotiated by the parties prior to August 19, 1972. Id. at
1006-09. In this case, the Judge's finding that the matter of
radio technicians' preparation and cleanup times is negotiable is
consistent with the parties' bargaining history prior to August
19, 1972 as evidenced by their: (1) 1968 agreement and the
meeting notes referenced therein; and (2) August 12, 1971
agreement in which the parties agreed that the scheduling of
preparation and cleanup time would continue. Moreover, even
assuming that there is a difference between preparation and setup
time and cleanup and breakdown times, as the Respondent contends,
the matter of preparation and cleanup times, which is the
specific subject at issue in this case, was negotiated and agreed
to by the parties in the August 12, 1971 agreement. We reject,
therefore, the Respondent's contention that the Judge found a
duty to bargain over a "new" subject matter, a matter which the
parties had not negotiated prior to August 19, 1972.

The Respondent also contends that the Judge erred by
"finding that the matter concerning preparation and clean-up
[ times is subject to bargaining pursuant to section 704,
in the absence of a finding that such negotiations would be 'in
accordance with prevailing rates and practices' in the radio
broadcast industry." Exception No. 8, Respondent's Exceptions at
4. However, in International Brotherhood of Electrical Workers,
Local Union No. 611, AFL - CIO and U.S. Department of the
Interior, Bureau of Reclamation, Rio Grande Project, 26 FLRA 906
(1987), petition for review filed sub nom. Department of the
Interior. Bureau of Reclamation, Rio Grande Project v. FLRA, No.
87-2483 (10th Cir. Oct. 8, 1987), the Authority rejected an
argument by the agency in that case that a benefit (premium pay)
which was included in the parties' agreement prior to August 19,
1972, could not be the subject of current negotiations because it
was not now a prevailing practice in the local area. The
Authority found that such a result would not be consistent with
the broad purpose of section 9(b) and section 704 to preserve the
rights of employees covered by those sections to negotiate for
the continuation of benefits which they had historically
received. See also National Federation of Federal Employees.
Local 341 and U.S. Department of the Interior. Bureau of Indian
Affairs. Yakima Agency and the Wapato Irrigation Project, 30 FLRA
783, 787 (1987), petition for review filed sub nom. U.S.
Department of Interior, Bureau of Indian Affairs, Yakima Agency
and the Wapato Irrigation Project v. FLRA, No. 88-7077 (9th
Cir. Feb. 26, 1988).

We also find in this case that interpreting the term
"prevailing practice" in a manner that would deny benefits which
employees had previously negotiated, solely on the basis that
those benefits are not currently prevailing practices in the
industry, would not be consistent with the broad purpose of
section 9(b) of the Act and section 704. Therefore, we reject the
Agency's contention that it cannot be required to bargain over
the continuation of preparation and cleanup times unless those
practices are current prevailing practices in the broadcast
industry.

The Respondent next contends that it discharged its duty to
bargain over preparation and cleanup times when the parties
negotiated an agreement after 1972 which did not include a
specific provision on preparation and cleanup times. The
Respondent asserts that "(o)nce a provision bargainable under
section 704 expires and is not renewed, that subject should
revert to protected management's rights status and the union
should be foreclosed from seeking to reassert section 704
protections by resurrecting pre-1972 bargaining history."
Respondent's Brief at 19. 

The legislative history of the Prevailing Rate Systems Act
provides that "prevailing rate employees who are now covered by
such contracts will be subject to the provisions of the Act when
such contracts expire and are not renewed or replaced by new
contracts." H.R. Rep. No. 339, 92d Cong., 1st Sess. 22 (1971).
The purpose of that statement is to indicate when employees who
are covered by section 9(b) would lose the protection of that
section. As indicated by the repeated use of the term
"contracts," employees entitled to bargain under section 9(b)
cease to be covered by section 9(b) when they cease to be covered
by contracts, that is, negotiated collective bargaining
agreements. In our opinion, the legislative history indicates
that the provisions of that Act will govern the terms and
conditions of employment of employees subject to section 9(b)
only in the absence of a collective bargaining agreement covering
those employees. Stated differently, if collective bargaining
agreements for prevailing rate employees who are now covered by
the provisions of section 9(b) expire and are not renewed or
replaced by any other agreement, then the Act will apply to those
employees. The legislative history does not state, as the
Respondent asserts, that if a provision in an agreement which was
negotiated under section 9(b) expires and is not renewed, then
the subject matter of the provision is, thereafter, governed by
the provisions of the Prevailing Rate Systems Act. See Medler v.
United States Bureau of Reclamation, Department of the Interior,
616 F.2d 450 (9th Cir. 1980).

Section 9(b) and section 704 preserve the scope of
bargaining of the parties as it existed prior to August 19, 1972.
Nothing in the terms of those provisions makes the continuation
of that scope of bargaining contingent on the continuation of
particular agreement provisions. Parties covered by section 9(b)
and section 704 could, in a new agreement, change the provisions
of previous agreements or alter the rights of the respective
parties concerning the matters involved. Bonneville, 22 FLRA at
1008. If an agreement excludes a provision which was the subject
of negotiation prior to August 19, 1972, that fact alone does not
remove that subject matter from the duty to bargain in connection
with subsequent agreement negotiations.

The opposite conclusion would require unions to avoid the
tradeoffs which are an essential component of collective
bargaining in order to avoid the loss of the right to bargain
about that subject altogether. Not only would bargaining become
difficult, but collective bargaining agreements could contain
provisions which no longer met the parties' needs because of a
union's concern that the loss of those provisions would reduce
its scope of bargaining. We  do not believe that
Congress intended such a result. The statutory terms provide that
prevailing rate employees lose the protection of section 9(b)
only when contracts covering them expire and are not renewed or
replaced by new contracts. Accordingly, we reject the
Respondent's interpretation of the legislative history of the
Act.

Further, we reject the Respondent's exception to the Judge's
application of a waiver standard to determine whether the Union
had relinquished its right to bargain over subjects covered by
section 704. The Respondent argues that the Judge incorrectly
found that the Respondent implied, in its arguments, that a
waiver standard was applicable. See Exception No. 6(2),
Respondent's Exceptions at 4 and Respondent's Brief at 20. It is
our view, stated above, that the determining factor in deciding
the scope of bargaining under section 704 is whether the subject
matter of a proposal had been negotiated by the parties prior to
August 19, 1972. The fact that the parties may not have included
a particular provision pertaining to that matter in subsequent
agreements is irrelevant to the question of the parties' basic
scope of bargaining under section 704. Therefore, the issue of
whether the absence of a particular provision constitutes a
waiver of the right to bargain does not arise.

In sum, the Respondent's arguments concerning the Judge's
application of section 704 of the CSRA to the facts in this case
lack merit and do not provide a basis for rejecting the Judge's
decision.

C. A Status Quo Ante Remedy Is Warranted

To remedy the unfair labor practice in this case, the Judge
ordered, among other things, that the Respondent return to the
practice of providing 15 minutes of preparation time at the
beginning of each technician's shift and 15 minutes of cleanup
time at the end of each shift. The Judge rejected the
Respondent's arguments that a return to the status quo was
inappropriate because it would create significant programming and
scheduling problems. The Judge also rejected arguments that a
status quo ante remedy would be inconsistent with the parties'
agreement because it would provide employees a third opportunity
in a single year to change their shifts when the agreement
provided for only two such opportunities.

The Authority has held that where an agency has violated the
Statute by refusing to negotiate over its decision to change
working conditions, the Statute requires the imposition
of status quo ante remedies, absent special circumstances, in
order not to render meaningless the mutual obligation under the
Statute to negotiate concerning changes in conditions of
employment. Veterans Administration, West Los Angeles Medical
Center, Los Angeles, California, 23 FLRA 278, 281 (1986). After
noting this standard, the Judge specifically found that
"(n)othing in the record reflects the nature of any especial
hardship experienced by Respondent when it made the change (from
the 15 minute periods to the 10 and 5 minute periods), and it, is
assumed that the same circumstances would exist in returning to
the practice of 15 minute periods for preparation and clean-up
actions." Judge's Decision at 20.

The Respondent alleges that a status quo ante remedy should
be denied because the change in preparation and cleanup periods
had a "de minimis" impact. See Exception No. 12, Respondent's
Exceptions at 5. In Department of Health and Human Services and
Social Security Administration, 30 FLRA 922, 926 (1988), we held
that where the decision to make the change is itself negotiable,
the extent of the impact of a change in conditions of employment
on unit employees is irrelevant in determining whether the agency
had a duty to bargain. Therefore, Respondent's assertion provides
no basis for denying a status quo ante remedy because the
Respondent failed to fulfill its obligation to bargain over the
decision to change conditions of employment. Id.

We reject, as well, the Respondent's argument that the Union
should be denied a status quo ante remedy because it acted in bad
faith. The Respondent asserts that the Union refused to bargain
and refused to explain the basis for its request to bargain on
the substance of the Agency's decision. The Judge stated that the
"record herein reveals that Respondent, despite its statements to
(the Union) that management would be willing to listen to (its)
proposals and discuss the change in preparation and clean-up
times, never intended to do more than negotiate as to impact and
implementation." Judge's Decision at 18. The Judge found that
because the Respondent never offered the Union a reasonable
opportunity to negotiate over the substance of its decision, the
Respondent could not claim that its failure to fulfill its
obligation to bargain stemmed from the Union's refusal to
participate.

We agree with the Judge's conclusion that the Union did not
prevent the Respondent from fulfilling its obligation to bargain
by refusing to enter into impact and implementation bargaining
and insisting on its right to bargain on the substance
of the change. While bargaining may have been facilitated if the
Union had provided the Agency with the evidence on which the
union relied for its claim that the matter in dispute was
negotiable under section 704, the Union was under no obligation
to do so. The Respondent's claims do not establish special
circumstances warranting denial of a status quo ante remedy.

VI. Conclusion

We have rejected the Respondent's exceptions concerning the
Judge's factual findings and his application of section 704 of
the CSRA to the facts of this case. We have also found that the
Respondent's exceptions to the Judge's status quo ante remedy
lack merit. We conclude, therefore, in agreement with the Judge,
that the Respondent was obligated to bargain with the Union
concerning its decision to reduce the preparation and cleanup
times for radio technicians and that the Respondent violated
section 7116(a)(1) and (5) of the Statute by failing and refusing
to negotiate over that decision. We also conclude that the remedy
recommended by the Judge is warranted under the circumstances.

ORDER

Pursuant to section 2423.29 of the Authority's Rules and
Regulations and section 7118 of the Federal Service Labor -
Management Relations Statute, the United States Information
Agency, voice of America, shall:

1. Cease and desist from:

(a) Changing the preparation time and cleanup time of the
radio technicians in the studio and recording areas without first
notifying the National Federation of Federal Employees, Local
1418, the exclusive representative of its employees, and
affording it the opportunity to bargain, to the extent consistent
with law and regulation, on the decision to effectuate such
change.

(b) In any like or related manner interfering with,
restraining or coercing its employees in the exercise of their
rights assured by the Federal Service Labor - Management
Relations Statute.

2. Take the following affirmative action in order to
effectuate the purposes and policies of the Federal Service Labor
- Management Relations Statute:

(a) Rescind the 10-minute preparation time and 5-minute
cleanup time for radio technicians in the studio and recording
areas, and reestablish the 15-minute preparation time and
15-minute cleanup time for those unit employees.

(b) Notify the National Federation of Federal Employees,
Local 1418, the exclusive bargaining representative of its
employees, of any intention to change the preparation time and
cleanup time of radio technicians in the studio and recording
areas and, upon request, bargain with such representative, to the
extent consistent with law and regulation, on any decision to
effectuate such change.

(c) Post at its Washington Plant, in Washington, D.C.,
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 Chief of the Operations Management
Division, 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.

(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order as to what steps have been taken to comply.


NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT change the preparation time and cleanup time of the
radio technicians in the studio and recording areas without first
notifying the National Federation of Federal Employees, Local
1418, the exclusive representative of our employees, and
affording it the opportunity to bargain, to the extent consistent
with law and regulation, on the decision to effectuate such
change.

WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce our employees in the exercise of their rights
assured by the Federal Service Labor - Management Relations
Statute.

WE WILL rescind the 10-minute preparation time and 5-minute
cleanup time for radio technicians in the studio and recording
areas, and reestablish the 15-minute preparation time and
15-minute cleanup time for those unit employees.

WE WILL notify the National Federation of Federal Employees,
Local 1418, the exclusive representative of our employees, of any
intention to change the preparation time and cleanup time for
radio technicians in the studio and recording areas and, upon
request, bargain with such representative, to the extent
consistent with law and regulation, on any decision to effectuate
such change.

____________________________
(Activity)

Dated: ___________________ By: ____________________________
(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by
any other material. 

If employees have any questions concerning this Notice or
compliance with its provisions, they may communicate directly
with the Regional Director, Region III, Federal Labor Relations
Authority, whose address is: 1111 18th Street, N.W., 7th Floor,
P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone
number is: (202) 653-8500.

_____________________________________________________

APPENDIX

Section 704 of the CSRA provides that:

(a) Those terms and conditions of employment and other
employment benefits with respect to Government prevailing rate
employees to whom section 9(b) of Public Law 92-392 applies which
were the subject of negotiation in accordance with prevailing
rates and practices prior to August 19, 1972, shall be negotiated
on and after the date of the enactment of this Act (Oct. 13,
1978) in accordance with the provisions of section 9(b) of Public
Law 92-392 without regard to any provision of chapter 71 of title
5, United States Code (as amended by this title), to the extent
that any such provision is inconsistent with this paragraph.

(b) The pay and pay practices relating to employees referred
to in paragraph (1) of this subsection shall be negotiated in
accordance with prevailing rates and pay practices without regard
to any provision of--

(A) chapter 71 of title 5, United States Code (as amended by
this title), to the extent that any such provision is
inconsistent with this paragraph;

(B) subchapter IV of chapter 53 and subchapter V of chapter
55 of title 5, United States Code; or

(C) any rule, regulation, decision, or order relating to
rates of pay or pay practices under subchapter IV of chapter 53
or subchapter V of chapter 55 of title 5, United States Code.

Section 9(b) of Pub. L. No. 92-392 provides that:

The amendments made by this Act shall not be construed
to--

(1) abrogate, modify, or otherwise affect in any way the
provisions of any contract in effect on the date of enactment of
this Act (Aug. 19, 1972) pertaining to the wages, the terms and
conditions of employment, and other employment benefits, or any
of the foregoing matters, for  Government prevailing
rate employees and resulting from negotiations between Government
agencies and organizations of Government employees;

(2) nullify, curtail, or otherwise impair in any way the
right of any party to such contract to enter into negotiations
after the date of enactment of this Act (Aug. 19, 1972) for the
renewal, extension, modification, or improvement of the
provisions of such contract or for the replacement of such
contract with a new contract; or

(3) nullify, change, or otherwise affect in any way after
such date of enactment (Aug. 19, 1972) any agreement,
arrangement, or understanding in effect on such date (Aug. 19,
1972) with respect to the various items of subject matter of the
negotiations on which any such contract in effect on such date
(Aug. 19, 1972) is based or prevent the inclusion of such items
of subject matter in connection with the renegotiation of any
such contract, or the replacement of such contract with a new
contract, after such date (Aug. 19, 1972). 
__________________________________________________________________________



UNITED STATES INFORMATION
AGENCY, VOICE OF AMERICA

Respondent

and

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1418

Charging Party

Case No. 3-CA-70062

Anita Schoomaker, Esq.
Carol Epstein, Esq.
Harold Howard
For the Respondent

Peter Sutton, Esq.
For the General Counsel

Gary Marco
For the Charging Party

Before: WILLIAM NAIMARK
Administrative Law Judge

DECISION

Statement of the Case

Pursuant to a Complaint and Notice of Hearing issued on
February 26, 1987 by the Regional Director for the Federal Labor
Relations Authority, Region III, a hearing was held before the
undersigned on May 8 and June 17, 1987 at Washington, D.C.

This case arose under the Federal Service Labor - Management
Relations Statute, 5 U.S.C. 7101 et seq. (herein called the
Statute). It is based on a charge filed on November 7, 1986 by
the National Federation of Federal Employees, Local 1418 (herein
called the Union) against United States Information Agency, Voice
of America (herein called the Respondent).

The Complaint alleged, in substance, that Respondent failed
and refused to negotiate in good faith over the substance of its
decision to reduce the preparation time at the beginning of each
radio technician's shift from 15 minutes to 10 minutes, and to
reduce the breakdown time at the end of each such employee's
shift from 15 minutes to 5 minutes; that the aforesaid change was
implemented on or about October 26, 1986 and Respondent's failure
and refusal to so negotiate was violative of Section 7116(a)(1)
and (5) of the Statute.

Respondent's Answer denied its failure and refusal to
negotiate in good faith and that it violated the Statute as
alleged. It set forth several affirmative defenses which will be
alluded to in the discussion and conclusions reached by the
undersigned, infra.

All parties were represented at the hearing. Each was
afforded full opportunity to be heard, to adduce evidence, and to
examine as well as cross-examine witnesses. Able briefs 3 were
filed with the undersigned by the parties.

On October 29, 1987 General Counsel filed a Motion To Strike
Respondent's Post - Hearing Brief. It was contended that
Respondent's brief was untimely filed since it was required,
pursuant to the undersigned's directive, to be postmarked no 
later than October 22, 1987, but the postmark affixed thereon by
the U.S. Postal Service was October 23. 1987. In support of its
position that such postmark establishes the filing date, as set
forth in Section 2429.21(b) of the Rules and Regulations, General
Counsel cites Veterans Administration, Veterans Administration
Medical Center, Muskogee, Oklahoma, 29 FLRA No. 5 (1987).

As indicated in Respondent's Opposition To The Motion To
Strike Respondent's Post - Hearing Brief, postage was applied at
about 8:00 p.m. on October 22. 1987 to the said brief by means of
a postage meter dated October 22, 1987. The said instrument was
placed thereafter at about 8:30 p.m. on said date in a U.S.
Postal Service pouch at 1800 M Street, N.W. lobby. The
General Counsel's brief was received by Respondent on October 26,
1987. 4

In the Veterans Administration case, supra, no postmark had
been placed on a motion filed by the agency, and an issue was
presented as to whether the motion was timely filed. In referring
to Section 2429.21(b) of its Regulations, the Authority declared
that the date of the postmark itself establishes the date of
filing and cuts off any dispute over the actual mailing date.

While it is true that the Authority did not determine the
effect of a meter-dated postmark, which precedes a U.S. Postal
Service postmark, it seems reasonable to conclude that "postmark
date" refers to the postmark affixed by the Postal Service. In
that event the postmark of October 23, 1987 affixed by the
Service would render the filing of Respondent's brief as
untimely.

Note is taken, however, that Section 2429.23(b) of the
Regulations provides that the expired time limit may be waived in
extraordinary circumstances. 5 In my opinion the circumstances
herein warrant waiving the time limit for the filing of
Respondent's brief. The facts disclose an honest effort by
counsel to file the brief on October 22, as reflected by the
metered postmark of that date and the deposit of the papers in
the U.S. Postal mail pouch on October 22. Moreover, the delay was
inconsequential as Respondent avers it did not receive General
Counsel's brief until October 26. It is concluded by the
undersigned that the purposes of the Statute are effectuated by
waiving the time limit under the circumstances herein.
Accordingly, the Motion To Strike Respondent's Brief is denied. 6


Upon the entire record, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence
adduced at the hearing, I make the following findings and
conclusions:

Findings of Fact

1. At all times material herein, and since on or about June
4, 1965, the Union has been the exclusive representative of
Respondent's radio broadcast technicians at its Washington Plant.
There are about 170 employees in the bargaining unit.

2. The Voice of America (VOA) is one of four major units in
the United States Information Agency (USIA). It is charged with
responsibility to produce and broadcast radio programs in English
and about 40 foreign languages. At the Washington Plant there are
four branches: studio, master control, central recording and
technical services which has two sections: maintenance and
field.

3. Technicians in the studio operations operate the studios,
mixing live talent with pre-recorded tape discs for music
inserts. Master Control channels all VOA broadcasts to various
geographic areas of VOA's worldwide network. central Recording is
responsible for recording on tape all programs originating
locally or in remote areas, as well as providing services such as
electronic news gathering. Technical Support maintains and
services equipment. It also covers field operations where
technicians will set up recording equipment, string lines,
cables, circuits and the like.

4. Respondent's radio broadcasting facility (Washington
Plant) operates 24 hours each day, seven days a week. There are
about 35-40 broadcast studios located on several floors. Radio
technicians, who are prevailing rate employees and connected with
Studio and Central Recording operations are assigned to work
schedules of 15 minute time periods. Each assignment commences
and concludes on the quarter hour to comply with the work
schedule of 15 minute increments.

5. From about 1965 until October, 1986 Respondent's radio
technicians were allowed a 15 minute period at the beginning of
the technician's shift, which was designated as preparation or
setup time. This 15 minute period, occurring before the employee
reported to his assignment, was to permit him to use his locker,
sign in, check the daily work schedule, pick up necessary
equipment and report to his duty station. During the same period
since 1965 the radio technician was afforded 15 minutes
of unscheduled time at the end of his shift, which was known as
clean-up or breakdown time. 7 This 15 minute allotment was
granted to permit the employee to shut down the studio, wash,
check schedules for any assigned overtime, and lock-up. 8 The
practice of 15 minutes for preparation and for clean-up time was
followed during the 20 year period unless an emergency arose, as
when a technician had to report directly to his assignment or
remain after his duty hour to cover for an employee who was not
present.

6. Record facts show that commencing in 1966 representatives
of division management and the Union discussed the matter of
setup and breakdown time. Thus, a document entitled "Union
Meeting Notes," 9 dated July 7, 1966, states in part as
follows:

The purpose of this meeting was to review the notes of the
previous meetings order (sic) to make a summation of what was
accomplished in the way of agreement and/or disagreements between
the Union and the Technical services Division for presentation to
the Agency for their possible ratification. Each section was
reviewed in its numerical order. 

Section 2-29, which appears in this document, recites that
"All technician's assignments shall include adequate setup and
breakdown time." (underscoring supplied). The record indicates,
as testified to by Oringel, that this issue of set up and
breakdown time was discussed thoroughly at this meeting on July
7, 1966.

7. The parties signed another document on October 11, 1967
which is also entitled "Union Meeting Notes" and was likewise
prepared by management. It reflects that a meeting was held on
that date attended by Oringel and another individual on behalf of
the Union. Pinney, along with the other persons, represented
management, and he signed for IBS. The document 10 contained the
same provisions (Section 2-29) for setup and breakdown time as in
the July 7, 1966 document. Added to the provisions was the
clause: "Any deviation from this practice shall be duly logged
for appropriate action." This section was discussed at the
October 11 meeting. It was agreed upon by division management
since it was a local division work procedure. 11

8. With respect to the terms "setup" and "breakdown" time as
used in Section 2-29 in the aforesaid document, Ernest Acquisto,
who was a fourth line supervisor, testified that such terms
referred to field operations. In other words, adequate setup and
breakdown time would be provided to technicians travelling to
remote locations so as to set up equipment, string cables, and
prepare equipment. Acquisto was not present at the meetings on
July 7, 1966 or October 11, 1967.

9. Under date of August 15, 1968 the Union and Respondent
executed the first basic agreement. Its duration was for two
years and it automatically renewed thereafter unless duly
terminated by either party. No provision was made in
the agreement for preparation or clean-up time. 12 Neither was
the subject discussed during the negotiations for this
agreement.

10. Subsequent to the execution of the basic agreement the
parties met to discuss certain matters, including the preparation
and clean-up time afforded the technicians. 13 Record facts
indicate that a meeting was held on August 12. 1971. It was
attended by Union representative Eugene  Leonard,
President of the Union, and Engineers Phil Danaher and Robert
Bach. On behalf of management were Acquisto as well as
Supervisors Jason and Mandelstamm. At this meeting the parties
discussed the matter of preparation and clean-up time for the
technicians. As reflected in G.C. 2, entitled "Union Management
Notes" the Union agreed and accepted in part the proposal by
management (IBS/PO) but insisted upon inserting the word
"emergency" before work requirements. Management agreed with the
insertion. Also, in compliance with the Union's request, the
proposal re preparation and clean-up time was revised to include
the recording area. The proposal, which was agreed to by the
parties, was signed by Leonard for the Union and Leon Jason for
management who was Plant Manager. It provided as follows:

IBS/PO PROPOSAL
SECTION 2-41 SCHEDULING PRACTICE

It is agreed that the management practice of scheduling a fifteen
(15) minute period before and immediately following an
individual's assignment in the studio and recording area on a
regular work day shall continue, with the provision that this
period is part of an individual's work day (to sign in, check his
schedule, walk to his assignment, arrive in the assigned studio
or cubicle on time prepared to carry out the duties, close down a
studio or cubicle, wash up, etc.) and, in the event of an
emergency work requirement, management retains the right to
absorb this fifteen (15) minute period, or any portion of it,
into an individual's daily assignments. (underscoring
supplied).

August 12, 1971

11. Acquisto testified that a decision on 15 minute
preparation and clean-up times would require higher level
approval than operations level managers since it was a
pay-related matter. His testimony indicates that if that time
were not available, it could result in overtime hours. If a
technician could not work that last 15 minute period, additional
overtime would result for another technician to work that period.
Acquisto further testified that he did not know if the agreement
on August 12, 1971 was ever approved at a higher level.

12. In 1976 the parties entered into negotiations for a new
basic agreement. The Union proposed that a provision be included
granting 15 minutes for both preparation and clean-up 
time. Management opposed the provision, as well as the practice,
and it proposed 10 minutes prep time and 5 minutes clean-up time.
The Union finally agreed to management's terms in that regard
after the parties bargained over the matter for several months.
The new agreement was executed on March 31, 1977 and contained
management's proposal. 14

13. After receiving numerous complaints from the technicians
re the 10-5 provision for prep and clean-up time, the Union
requested that the 1977 agreement be changed so as to delete that
provision. It was deleted by virtue of an amendment to the
agreement dated April 19, 1977. 15

14. As a result of budgetary problems as well as a reduction
in work force despite increased productivity, Respondent
concluded in 1986 that certain changes should be made in its
Broadcast operations. Included therein was a decision to
discontinue the 15 minutes preparation and clean-up times for the
technicians and to reduce it to 10-5 minutes respectively. It was
contemplated that this change would save approximately $90,000
per week in the Studio Branch.

15. By letter dated August 27, 1986 16 K. Gregg Prillaman,
Chief of management's Labor and Employee Relations Division,
advised union President Marco of its staffing and assignment
plans, which included a desire to reduce the scheduled breaks of
the technicians. Prillaman stated that the reduction of 15
minutes per day in break time could save the Agency more that
$180,000 per year in labor costs. A meeting on September 2 was
suggested to discuss the issues. The Union replied in a
letter dated August 28 in which it stated the document was
unacceptable, and it was unrealistic to expect the Union to
research and consider the matter by September 2.

16. Both Marco and Prillaman met on September 2. The
environment was hostile, with Marco stating he'd rather close
down the operation than agree to adverse conditions for the
technicians. There was no bargaining, or attempts to do so, in
regard to the 15-15 minutes preparation and clean-up time. At
another meeting on September 23 Prillaman hand-delivered to Marco
a copy of management's plan involving the rescheduling of the
studio technicians' eight hour day. It provided for the 10 minute
preparation time and 5 minute clean-up time. Unrefuted testimony
reflects that Marco referred to it as "a piece of shit". No 
discussion on the merits of the plan took place.

17. The parties met again on September 25. At the meeting
Marco handed a letter signed by him to Prillaman which responded
to the materials presented to the Union a few days earlier. The
letter advised Prillaman that the Union felt that the 15 minute
time periods at the beginning and end of the shifts was subject
to mandatory substantive bargaining; that the Union agrees to
such bargaining; does not agree to the Agency's position; and
that an impasse will probably result from negotiations. No 
statement was made by Marco as to why he considered the matter
negotiable.

18. During a meeting between Marco and Prillaman on
September 29 the latter gave the Union representative a letter
summarizing their failure to agree on the proposed changes.
Prillaman pointed out that the new 10-5 prep and clean-up time
schedule would not result in any other effects - nobody would
lose a job, the work schedules wouldn't change, nor would the
grades be affected. Prillaman stated that the Union official
refused to discuss the matter or point out any adverse result of
the change.

19. In a letter dated September 30 Prillaman wrote Marco
that, although the Union registered objection to the proposed
changes, Marco chose not to identify them specifically or to show
how the technicians would be adversely affected. The letter
recited Prillaman's understanding that Marco felt the issues were
negotiable in formal negotiation. The Union was also advised of
management's intention to implement the changes on October 26;
that it would be glad to discuss the proposed changes and
entertain impact and implementation proposals re any adverse
effects the Union felt would result therefrom; that
management would be glad to look at such proposals and enter into
direct negotiations, if appropriate.

20. By letter dated October 2 Marco informed Prillaman that
the Union deemed the 15 minute time period at the commencement of
the shift and at its end was a subject of negotiation prior to
August 9, 1972; that, under Section 704 of the Civil Service
Reform Act, it was a mandatory subject for bargaining despite
Section 7106 of the Statute. Marco further stated that the Union
requested negotiations over the Agency's proposals, and he
proposed the maintenance of status quo with regard to the
15-minute time periods at the beginning and end of the
technician's work day.

21. Prillaman replied by letter dated October 3 wherein he
stated his position "that the changes to be implemented are the
exercise of management rights and subject, therefore, only to
impact and implementation bargaining . . ." He reiterated that
Marco should point out the specific objections to the proposed
changes - that for any constructive dialogue or negotiations the
parties must be willing to meet and discuss their respective
views. Prillaman suggested another meeting to discuss the merits
of their respective positions, and the parties met again on
October 6. Prillaman testified that he invited Marco to negotiate
as to the substance of the decision; that he requested Marco to
submit evidence of pre-1972 bargaining, but the latter refused to
provide it.

22. Prillaman wrote Marco again on October 15 and sent him
two memos that management planned to send to employees re the
proposed changes of the scheduling process. One such memo was
from the Chief of the Operations Management Division to all
employees announcing that effective October 26 the 15 minute
preparation and shut-down periods of the technician shifts would
be changed to 10 and 5 minutes respectively for all elements of
the Division. Prillaman also wrote that management, as always,
would be pleased to entertain any impact and implementation
proposals from the Union.

23. In a reply letter dated October 15 Marco stated that the
Union reiterated its position that the changes were subject to
mandatory bargaining.

24. Record facts, as testified to by supervisor Acquisto,
indicates that issues involving pay were handled at top level
meetings; that all other matters could be and were discussed at
the operational levels. However, all of  the conclusions
reached at the operating level had to be brought to the top level
for any decisions.

25. Prillaman testified, and I find, that he deemed the
granting of preparation and clean-up times for the technicians to
be a management right, and that the bargaining obligation by
Respondent only extended to impact and implementation. Further,
that although he invited proposals from the Union as to both
substance as well as impact and implementation during the course
of their meetings, proposals by the Union re substance would
"probably not" have been part of his willingness to negotiate. In
this connection, Prillaman testified as follows:

Q. Prior to the implementation of the change in
October, did you agree to negotiate over the
substance of this matter?

A. No.

Q. You did not. So, in fact, you did refuse to
negotiate over the substance of this matter
before it was implemented. Correct?

A. Yes. (underscoring supplied).

Q. And isn't it true that the Union had demanded
to bargain over the substance of this matter
prior to implementation?

A. Yes. (TR 264).

26. The changes were implemented on October 26, and the radio
technicians in studio and recording sections were placed on a new
scheduled time period: 10 minutes preparation time at the
beginning of the shift and 5 minutes clean-up time at the end of
the shift.

Conclusions

In contending that Respondent has failed and refused to
bargain concerning the change in the allotted time periods for
the technicians to prepare for, as well as clean up after, their
assignments, General Counsel relies upon Section 704 of the Civil
Service Reform Act of 1978. While not challenging that duty hours
are ordinarily part of management's right to assign work, it is
urged that the aforesaid statutory provision carves out an
exception where - as occurred between the parties herein - the
disputed change involves a matter which was subject to
negotiations between the parties prior to August 19, 1972. Thus,
it is argued the Respondent was not entitled to change the amount
of the technicians' preparation and clean-up time, which had been
established by past practice, without negotiating same with the
Union; and, further, management failed to negotiate said change
as required by Section 7116(a)(5) of the Statute.

Although it acknowledges that the aforesaid Section 704 of
the Civil Service Reform Act of 1978 requires an agency to
negotiate conditions of employment which were negotiated prior to
1972, Respondent insists that this provision does not affect
management's right herein to make the change unilaterally. It is
asserted that the matter in dispute had not been the subject of
negotiations which culminated in an agreement prior to August 19,
1972. Moreover, Respondent contends that, assuming arguendo,
preparation and clean-up periods were negotiated, management
fulfilled its duty via the 1977 negotiations and agreement. It is
argued that any bargaining rights preserved by Section 704 are
terminable by the negotiations after 1972. Finally, Respondent
takes the position that the Union refused to discuss the matter
at hand, and thus no duty devolved upon it to negotiate further
before implementing the change.

It seems quite evident that, unless Section 704 of the Civil
Service Reform Act (hereinafter referred to as 704) requires a
contrary result, there is no obligation by Respondent to
negotiate the decision re the time allotted the technicians for
preparation and clean-up periods. The Authority has considered a
similar provision which was the subject of a union proposal in
American Federation of State and Municipal Employees, Local 2477,
AFL - CIO and Library of Congress, 23 FLRA 204. In the cited
case the union proposed, inter alia, that the "Staff will be
allowed 10 minutes after the start and before the end of each
workday to change clothes." It was held that such proposal
directly interfered with the Agency's right under Section
7106(a)(2)(B) to assign work. See also American Federation
Government Employees, Local 2094, AFL - CIO and Veterans
Administration Medical Center, New York, N.Y., 19 FLRA 1027. 17


In 1972 Congress enacted the Government Employees Prevailing
Rate System Act, Pub. L. No. 92-392 (codified at 5 U.S.C.
5341-5349). Section 9(b)(1) of the Act provides that the
provisions of the Act establishing rate systems shall not be
interpreted in any way to nullify or otherwise affect the
provisions of existing negotiated agreements relating to wages,
terms and conditions of employment, and other benefits of
specified groups of prevailing rate employees. Parties covered by
9(b) are not confined merely to continuing existing agreements.
They may, in a new agreement, change those terms on the rights of
the parties as to the matters involved. This would also include
new terms in a renegotiated agreement.

Thus, as seen in such legislation, recognition was given to
the practice of some federal agencies to arrive at pay for
prevailing employees via collective bargaining. Moreover,
collective bargaining contracts in effect on August 19, 1972 were
preserved, as well as the rights of the parties to those
contracts to renew them and continue negotiations as to matters
involved therein.

The Civil Service Reform Act of 1978, in addition to
establishing a labor-management relations program in the public
sector, also established labor-management rights for prevailing
rate employees whose positions met certain criteria. Section 704
of this Act authorizes employees covered by section 9(b) of
Public Law 92-392 to continue negotiations re conditions of
employment and benefits, including pay practices, without regard
to any provisions of the CSRA which may be inconsistent with 704.
18

While the precise issue differed from the one at bar, the
Authority concluded in Columbia Power Trades Council and United
States Department of Energy, Bonneville Power Administration, 22
FLRA 998, that under 704 agencies must continue to negotiate on
terms and conditions 19 of employment for prevailing rate
employees where those terms and conditions were subject to
negotiation prior to August 19, 1972. That conclusion conformed
to the legislative intent in framing 704, as reflected in the
House Committee Report accompanying the House Committee bill
(H.R. 11280). This Report stated that it was the intention to
"preserve the existing right of certain Federal prevailing rate
employees to negotiate terms and conditions of employment" and to
"preserve unchanged the scope and substance of the existing
collective bargaining relationships."

Although it recognizes the applicability of 704 where
matters have been negotiated prior to August 19, 1972, Respondent
insists the record herein is barren of any evidence to support
such negotiations. While the matter of time periods for
technicians to prepare and clean-up may have been discussed,
management maintains that no negotiations leading to an
agreement ever occurred. It deems the meeting notes in 1966 and
1967 as mere discussions on diverse matters which were far
removed from negotiations, and Respondent points to the
testimonies of Prillaman and Michael Ostergard, former Union
president, attesting to the absence of pre-1972 negotiations on
preparation and clean-up times.

The undersigned disagrees that the said matter was not the
subject of negotiations between the parties prior to 1972. While
the 1966-1967 discussions may not have resulted in a written
agreement at that time as to preparation and clean-up times, the
notes reflect that they summarized "what was accomplished in the
way of agreements and/or disagreements. . ." Both documents (G.C.
4 and 13) were signed by the parties and each declared that "all
technician's assignments shall include adequate setup and
breakdown  time". Apart from the binding effect of those
documents, the parties reduced to writing their agreement as to
this matter on August 12, 1971, and it was signed on that date by
Leon Jason, Chairman of IBS and Eugene Leonard, Chairman of the
Union. As indicated in G.C. Exhibit 2 it was agreed that the
management practice of scheduling a 15 minute period before and
immediately following an individual's assignment in the studio
and recording areas on a continual basis would continue. Further,
that the period was part of the individual's work day and would
allow for preparation of duties (to sign in, check his schedule,
walk to his assignment) and for closing down afterward as well as
washing up, etc. 20

Union representative Leonard, who was present at the August
12, 1971 meeting, testified that the 15 minute time periods to
prepare and clean up were considered and agreed upon at that
meeting. His testimony in this regard was corroborated by
management representative Acquisto who was also present at the
time. These factors, coupled with the agreement itself, is
persuasive that the subject matter of the dispute herein was
negotiated prior to August 19, 1972 and I so conclude.

Although it does not abandon its position that preparation
and clean-up time periods were not negotiated prior to August,
1972, Respondent advances two principal contentions in this
regard. It avers that (1) any duty to bargain possibly imposed
upon it by virtue of 704 was discharged in the 1977 negotiations
between the parties, as well as by subsequent negotiations; (2)
the Union refused to negotiate concerning the changes in the time
periods, which absolved Respondent of any obligation to bargain
thereon that was required by 704.

(1) Respondent maintains that the Congressional Policy
behind 9(b), as continued under 704, declares that employees
covered by the prevailing rate statute would lose that protection
when pre-1972 contract expire. In other words, it is contended
that the negotiability of subjects protected by 9(b) and 704 is
terminable after the subject is negotiated and the contractual
provisions expire or are not renewed. 

An examination of the legislative history does not, in my
opinion, support such a view. The apparent purpose of 704, as
expanding upon 9(b), was to preserve for negotiation subject
matters which were negotiated before August 19, 1972. Such
preservation was to affect prevailing rate employees, as the
technicians herein, and would be applicable to general terms and
conditions of employment. Respondent contends it discharged its
duty, and the purpose of 704 was satisfied, when the parties
concluded an agreement in 1977 providing for 10 minutes
preparation and 5 minutes for clean-up. Further, Respondent
argues that since the parties included a clause therein which
recited that management deemed the subject a management right,
the Union waived its right to bargain thereafter concerning the
issue.

I do not agree that, upon negotiation by the parties of
subject matters protected under 704, no further duty devolves
upon management to negotiate such matters thereafter. No such
limitation is placed upon the protection afforded employees by
the statutory provision itself. Rather do I conclude, as the
Authority stated in International Brotherhood of Electrical
Workers, Local Union No. 611, AFL - CIO, and U.S. Department of
the Interior, Bureau of Reclamation Rio Grande Project, 26 FLRA 
906, "the broad purpose of 9(b) and Section 704 was to preserve
the rights of employees covered by those sections to negotiate
for the continuation of benefits which they had received, without
regard to otherwise legal limitations." (underscoring supplied).
The obligation to bargain re such matters which were negotiated
before 1972 is not a one-time duty, as argued by Respondent.
Neither do I agree that the Union waived its right to continue
negotiating the matter after 1977 based on the declaration by
management that, even though it deleted the 10-5 provision from
the 1977 agreement, it was not reverting to the 15-15 minutes and
considered the decisions a management prerogative. Waivers by a
party must be clear and unequivocal. Department of Labor,
Employment Standards Administration, Wage and Hour Division, 21
FLRA 484. I find no support for the conclusion that, having
negotiated the matter in 1977, the Union waived its right to ever
negotiate the issue ever again. Moreover, it is not supported by
Respondent's assertion of its right to assign work as ultimately
including the preparation and clean-up time periods which, under
704, are preserved for negotiation.

(2) Management insists that it was desirous of negotiating
the time periods for preparation and clean-up time for the
technicians but the Union foreclosed such negotiation by its
adamant behavior and refusal to discuss the matter.
Hence, it is urged or argued, no duty to bargain re the matter
was required of Respondent.

While the record does reveal that Prillaman offered on
several occasions to discuss the matter with Marco, it also
belies any intention on the part of management to negotiate the
substance thereof with the Union. Thus, on October 3, 1986
Prillaman wrote Marco that the change was a management right and
subject only to impact and implementation bargaining. On October
15, 1986 Prillaman sent Marco memos which would be sent to
employees announcing that effective October 26, 1986 the 15
minute preparation and clean-up times would be changed to 10 and
5 minutes respectively. In the same letter he advised Marco that,
as always, management would be pleased to entertain any impact
and implementation proposals from the Union. Moreover, at the
hearing herein Prillaman testified that the bargaining
obligations of Respondent extended only to impact and
implementation; that although he invited proposals from the Union
to substance, as well as impact and implementation, proposals by
the Union as to substance would "probably not" have been part of
his willingness to negotiate.

It is elementary that an agency which intends to effect
changes in working conditions must not only notify the bargaining
agent beforehand, but a reasonable opportunity to negotiate
thereon must be afforded the union. The record herein reveals
that Respondent, despite its statements to Marco that management
would be willing to listen to his proposals and discuss the
change in preparation and clean-up times, never intended to do
more than negotiate as to the impact and implementation thereof.
In addition to the foregoing testimony, Prillaman also testified
that he did refuse to negotiate over the substance of the change
- that he did not agree to negotiate thereon.

Thus, Respondent's argument that it offered the Union, in
good faith, an opportunity to negotiate the change falls on deaf
ears. Since, in reality, management did not intend to bargain on
the decision itself, it can scarcely claim that any failure to
fulfill its duty in that regard stemmed from the Union's refusal
to participate in discussions on the matter. Further, I am not
persuaded that the Union waived its right to require
negotiations. It does not appear that the Union herein clearly
refused to bargain re the substance of the change in an
unequivocal manner. While Marco was upset about the announced
change and made some caustic remarks to management about its
decision to effect the change, record facts indicate the Union
did not abandon  its position that the matter was
negotiable. This is evidenced in the Union representative's
letters of September 25, 1986 and October 2, 1986 wherein Marco
stated that the Union considered the change to be a mandatory
subject for bargaining. Moreover, at the hearing herein
Prillaman, when asked whether it was not true that the Union
demanded to bargain over the substance of the matter before
implementation, answered in the affirmative. Accordingly, I
reject the contention that the Union refused to negotiate the
change so as to excuse Respondent from its duty to bargain over
the decision itself.

In sum, I conclude that the parties negotiated, prior to
August 19, 1972, the matter concerning preparation and clean-up
times for the radio technicians in the studio and recording
areas; that, pursuant to Section 704 of CSRA of 1978, the subject
continued to be a bargainable matter as to the decision to change
the practice existing for about 20 years; that such decision was
not affected by Section 7106 of the Statute so as to constitute a
management right to assign work, and therefore to relieve
Respondent of its obligation to negotiate the substance of the
change from 15 minutes preparation time and 15 minutes clean-up
time to lo minutes and 5 minutes respectively; and that
Respondent refused and failed to negotiate the change in
violation of Section 7116(a)(1) and (5) of the Statute.

Remedy

The Authority has made it clear that where an agency has
violated the Statute by refusing to negotiate its decision to
change working conditions a status quo ante remedy is appropriate
absent special circumstances. Veterans Administration West Los
Angeles Medical Center, Los Angeles, California, 23 FLRA 278,
(and cases cited therein). In the case at bar Respondent asserts
that assuming arguendo it did not fulfill the duty to bargain re
the decision to change the preparation and clean-up times for the
technicians, such a remedy is inappropriate. As support for such
contention, mention is made of the fact that the daily shifts
would have to be changed to meet programming requirements, and
the rescheduling of program coverage would be necessitated.
Further, Respondent adverts to the collective bargaining
agreement which entitles technicians to pick shifts twice a year,
and it argues that the normal remedy would "trigger a third shift
pick" inconsistent with that agreement.

These arguments are rejected, and I do not agree that such
special circumstances have been shown to exist which 
justify the denial of a status quo ante remedy. Note is taken
that management never raised these points of alleged hardship in
1977, nor on other occasions where the matter was discussed.
Furthermore, the shifts of the radio technicians remained the
same, the change involving the 5 minutes beforehand, as well as
the 10 minutes at the end, which were afforded the employees to
prepare and clean up. Nothing in the record reflects the nature
of any especial hardship experienced by Respondent when it made
the change on October 26, 1986, and it is assumed the same
circumstances would exist in returning to the practice of 15
minute periods for preparation and clean-up actions. In a recent
case, Department of Health and Human Service, Public Health
Service, Health Resources and Services Administration, Oklahoma
City Area. Indian Health Service, Oklahoma City, Oklahoma, 31
FLRA No. 33, a status quo ante remedy was ordered even though
it required restoring a policy allowing smoking at Respondent's
hospital and facilities. Despite its harmful effects, smoking
thereat was deemed a condition of employment, and the remedy was
required so as not to render meaningless the obligation to
bargain. Accordingly, I still recommend a similar remedy
herein.

Having concluded that Respondent violated Sections
7116(a)(1) and (5) of the Statute by not negotiating its decision
to change the preparation and clean-up time periods for radio
technicians, 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 the United States Information
Agency, voice of America, shall:

1. Cease and desist from:

(a) Changing the preparation time and clean-up time of the
radio technicians in the studio and recording areas without first
notifying the National Federation of Federal Employees, Local
1418, the exclusive representative of its employees, and
affording it the opportunity to bargain, to the extent consistent
with law and regulations, on the decision to effectuate such
change.

(b) In any like or related manner interfering with,
restraining or coercing its employees in the exercise of their
rights assured by the Federal Service Labor - Management
Relations Statute. 

2. Take the following affirmative action in order to
effectuate the purposes and policies of the Federal service Labor
- Management Relations Statute:

(a) Rescind the 10 minute preparation time and 5 minute
clean-up time for radio technicians in the studio and recording
areas, and reestablish the 15 minutes preparation time and 15
minutes clean-up time for those unit employees.

(b) Notify the National Federation of Federal Employees,
Local 1418, the exclusive representative of its employees, of any
intention to change the preparation and clean-up time for radio
technicians in the studio and recording areas and, upon request,
bargain with such representative, to the extent consistent with
law and regulations, on any decision to effectuate such change.

(c) Post at its Washington Plant, in Washington, D.C. 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 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.

(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region 3, Federal
Labor Relations Authority, 1111 - 18th Street, N.W., 7th Floor,
P.O. Box 33758, Washington, D.C. 20033-0758, in writing, within
30 days from the date of this Order, as to what steps have been
taken to comply herewith.

WILLIAM NAIMARK
Administrative Law Judge

Dated: March 15, 1988
Washington, D.C.



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 preparation time and clean-up time of the
radio technicians in the studio and recording areas without first
notifying the National Federation of Federal Employees, Local
1418, the exclusive representative of our employees, and
affording it the opportunity to bargain, to the extent consistent
with law and regulations, on the decision to effectuate such
change.

WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce our employees in the exercise of their rights
assured by the Federal Service Labor - Management Relations
Statute.

WE WILL rescind the 10 minute preparation time and 5 minute
clean-up time for radio technicians in the studio and recording
areas, and reestablish the 15 minutes preparation time and 15
minutes clean-up time for those unit employees.

WE WILL notify the National Federation of Federal Employees,
Local 1418, the exclusive representative of our employees, of any
intention to change the preparation and clean-up time for radio
technicians in the studio and recording areas and, upon request,
bargain with such representative, to the extent consistent with
law and regulations, on any decision to effectuate such change.

____________________________
(Activity)

Dated: ___________________ By: ____________________________
(Signature) (Title)



This Notice must remain posted for 60 consecutive days from
the date of posting and must not be altered, defaced or covered
by any other material.

If employees have any questions concerning this Notice or
compliance with any of its provisions, they may communicate
directly with the Regional Director of the Federal Labor
Relations Authority, Region 3, whose address is; 1111 - 18th
Street, N.W., 7th Floor, P.O. Box 33758, Washington, D.C.
20033-0758, , and whose telephone number is: (202) 653-8500.




FOOTNOTES:
(If blank, the decision does not have footnotes.)



Footnote 1 Authority's Decision

The Agency's request for oral argument pursuant
to section 2429.6 of the Authority's Rules and Regulations is
denied. Oral argument before the Authority is not warranted
because there is a sufficient record before us on which to base a
decision. The Agency's request to file a reply brief is also
denied.

Footnote 2  Authority's Decision

The Respondent identified two different
exceptions as "Exception No. 6." We will refer to those
exceptions in this decision as "Exception No. 6(1) and
"Exception No. 6(2)."
_______________________________________________________


Footnote 1 ALJ's Decision

General Counsel also filed, along with a brief, a
Motion To Correct The Transcript. No objections having been
interposed, and it appearing that such proposed corrections are
proper, that Motion is granted as requested.

Footnote 2  ALJ's Decision

The facts as set forth by Respondent are attested
to in an affidavit and submitted with the Opposition To General
Counsel's Motion.

Footnote 3  ALJ's Decision

Although no postmark at all was put on the
document in the Veterans Administration case, supra, the
Authority concluded it would effectuate the purposes of the
Statute to waive the expired time limit.

Footnote 4 ALJ's Decision

The brief of Respondent, together with the Errata
filed thereafter is accepted by the undersigned.

Footnote 5 ALJ's Decision

Both the 15 minute preparation time and the 15
minute clean-up time are part of the technician's paid eight hour
day. Thus, the 30 minutes allotted for the stated purposes is
included within the eight hours duty time.

Footnote 6 ALJ's Decision 

A stand-by room was reserved for the technicians
to sign-in and out. As a result of a change in procedure, the
employee now notes his departure time when signing in before
reporting to his assignment. However, to check the schedule the
technician will still return to the stand-by room before leaving
the premises.

Footnote 7  ALJ's Decision 

The Notes were prepared by management. Robert
Oringel, President of the Union, attended with two other Union
representatives. One of the latter, John Celebre, Vice-President
of the Union, signed on its behalf. Russell F. Pinney, Division
Chief attended with three others, and he signed on behalf of
management. The abbreviation IBS stands for "International
Broadcast Service", which is an element of VOA.

Footnote 8  ALJ's Decision 

Oringel signed for the Union and Pinney executed
it on behalf of management.

Footnote 9  ALJ's Decision 

The stated purpose of this meeting was to
prepare a draft of the proposed agreement between the Agency and
the Union to be presented to IPTA for their approval before
formally providing the set of Respondents to IPT ratification.
(IPTA refers to the VOA Personnel Office - IPT refers to USIA
Personnel Office).

Footnote 10  ALJ's Decision 

Article VIII, Section 2 of the Agreement does
provide for the continuation in effect of established practices
and policies in effect before the agreement. This includes the
conclusions reached at meetings between the Union and Agency
representatives as reflected in the written meeting notes.

Footnote 11   ALJ's Decision

At the hearing General Counsel offered in
evidence a typewritten but unsigned document (G.C. 3) to support
the argument that a meeting was held on May 11, 1971 at which the
matter was discussed. The undersigned accepted it solely as a
document found in the Union's files, but not to prove that the
matter was discussed or to verify what took place on that date.
The document, entitled "Labor-Management Meeting", has 11 names
typed in as apparent representatives of the parties. Eugene
Leonard, whose name appears thereon, testified he was present at
some meetings where the prep and clean-up time was discussed, but
he didn't remember the date. Ernest Acquisto, whose name also
appears thereon, testified he was at this meeting but doesn't
recall what was discussed. While the document shows it was
prepared by a VOA manager, C.B. Groce, he did not testify at the
hearing. The exhibit was taken from the files by Union President
Gary Marco. Acquisto states he never saw it before the hearing.
General Counsel contends that, under Federal Rules of Evidence,
801(a)(2) it constitutes an admission, and under 803 (6) it is an
exception to heresay as a business record. With respect to the
latter contention, neither the custodian of the document nor a
qualified witness testified as to its identity or preparation,
nor whether the document was made at or near the time of the
event. It was apparently a management record - not the Union's -
and I cannot conclude it was kept in the regular course of
"business activity". Neither do I find any support for the veiw
that G.C. 3 is shown to be an admission against Respondent. No 
testimony reflects such conclusion. Thus, I do not find that the
subject at issue was discussed or negotiated on May 11, 1971 by
the parties.

Footnote 12  ALJ's Decision

 Two subsequent basic agreements were executed
between the parties covering the unit employees: One on April 25,
1979, the other on March 14, 1984 for a four year term.

Footnote 13  ALJ's Decision

 Record facts show that management stated it was
not thereby agreeing to return to the 15-15 arrangement and it
considered such scheduling to be a management decision. The
record also reflects the Union hoped that, notwithstanding the
10-5 deletion, the former practice of 15 minutes for prep and for
clean-up time would be resumed. Nevertheless, the practice of
15-15 preparation and clean-up time for radio technicians did
continue until 1986.

Footnote 14  ALJ's Decision

 Unless otherwise indicated, all dates
hereinafter mentioned occurred in 1986.

Footnote 15  ALJ's Decision

 The proposal, which was found to be outside the
duty to bargain, stated: "Employees of the bargaining unit will
be given 15 minutes after starting time to reach their duty
station. Employees will be given 15 minutes before the end of
their shift for personal hygiene and changing of clothing."

Footnote 16  ALJ's Decision

 As codified at 5 U.S.C. 5343, it provides: 
Sec. 704. (a) Those terms and conditions of employment and other
employment benefits with respect to Government prevailing rate
employees to whom section 9(b) of Public Law 92-392 applies which
were the subject of negotiation in accordance with prevailing
rates and practices prior to August 19, 1972, shall be negotiated
on and after the date of enactment of this Act in accordance with
the provisions of section 9(b) of Public Law 92-392 without
regard to any provision of chapter 71 of title 5, United States
Code (as amended by this title), to the extent that any such
provision is inconsistent with this paragraph.

Footnote 17  ALJ's Decision

 In the Bonneville case, supr