[ v41 p926 ]
41:0926(77)CA
The decision of the Authority follows:
41 FLRA No. 77
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the Respondents to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the Respondents' exceptions.
The consolidated complaints alleged that Respondents U.S. Army Soldier Support Center (SSC), U.S. Army Finance and Accounting Center (USAFAC), Hawley U.S. Army Community Hospital (AH), U.S. Army Information Systems Command (ISC), and U.S. Army Commissary, Fort Benjamin Harrison, Indiana (the Commissary) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain over the substance and/or the impact and implementation of changes in the scheduled pay day and in the time between the end of a pay period and the day on which employees receive their paychecks ("pay lag"). The complaint in Case No. 5-CA-80149 also alleged that the Commissary failed to provide the Union with notice and an opportunity to bargain over the changes.
The complaints further alleged that Respondents Finance and Accounting Offices (FAOs) of the SSC and of Fort Sam Houston, Texas violated section 7116(a)(1) of the Statute by interfering with the bargaining relationship between the other Respondents and the Union when they implemented the changes prior to the completion of bargaining.
The Judge found that: (1) Respondents SSC, USAFAC, AH, ISC, and the Commissary violated section 7116(a)(1) and (5) of the Statute by refusing to bargain over the impact and implementation of the changes; (2) Respondent Commissary violated the Statute by failing to give the Union appropriate notice and an opportunity to bargain over the changes; and (3) Respondents FAO, SSC and FAO, Fort Sam Houston violated section 7116(a)(1) of the Statute by interfering with the bargaining relationship between the other Respondents and the Union when they implemented the changes prior to the completion of bargaining.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision, the exceptions, the opposition, and the entire record, we adopt the Judge's conclusions only to the extent that they are consistent with our findings below. We agree with the Judge that: (1) Respondents Commissary and FAO, Fort Sam Houston violated the Statute as alleged; (2) Respondents SSC, USAFAC, AH, ISC violated section 7116(a)(1) and (5) of the Statute by implementing the pay lag change without bargaining over Proposal 2; and (3) Respondent FAO, SSC violated section 7116(a)(1) of the Statute by interfering with the bargaining relationship between Respondents SSC, USAFAC, AH, ISC and the Union when they implemented the change prior to the completion of bargaining over Proposal 2.
II. Background
Respondents SSC, USAFAC, AH, ISC, and the Commissary are activities at Fort Benjamin Harrison, Indiana. The Union is the exclusive representative of units of civilian employees in each of these activities. The Union and the Respondents are parties to a single collective bargaining agreement covering all of these units.
This case concerns changes in pay procedures effected throughout the Department of the Army. By memorandum dated June 3, 1987, the Army announced to its activities that it was modifying Army Regulation 37-105, Chapter 2-2, Finance and Accounting for Installations, Civilian Pay Procedures. The modification required all Army installations to adopt a 12-day pay lag for their civilian employees. Prior to this time, the length of the pay lag varied from installation to installation. The pay lag for employees at SSC, USAFAC, AH, and ISC was 6 days, whereas the pay lag for employees of the Commissary was 10 days. The modification also required that all installations be on the same 2-week pay-period schedule, thus, creating a uniform pay day throughout the Army. This "particular aspect of the change affected none of the Activities here as all were on the standard calendar." General Counsel's Post-Hearing Brief at 4 n. 3 (citations to transcript omitted). Implementation of the modification was to be complete by January 2, 1988.
All of the activities in this case, except the Commissary, receive their payroll services from Respondent FAO, SSC. Payroll for the Commissary is handled by Respondent FAO, Fort Sam Houston.
In a memorandum dated July 8, 1987, the Labor Relations Officer at Ft. Benjamin Harrison informed the Union that the Army regulations had been modified to require all civilian employees to be paid on the same pay day, with a 12-day pay lag. The memorandum also stated that "it was 'notification of local implementation affecting employees paid by [Respondent] SSC F&AO.'" Judge's Decision at 7. By its terms, the memorandum encompassed "all Respondent Activities except the Commissary[,] which was paid by the F&AO at Fort Sam Houston." Id.
On July 24, 1987, the Union requested to bargain over the substance and/or the impact and implementation of the changes in the pay day and the pay lag. On July 31, 1987, the Union submitted the following proposals:
Union Proposal No. 1
The Employers agree that they will mail/deliver employees paychecks no later than 4 workdays after the end of a particular pay period. Pay periods are to mean the current 26 pay periods per year.
Union Proposal No. 2
Section 1: Employees will not have to accept direct deposit of their pay as a condition of employment but will have one of the following options.
[a.] Employees will have their paychecks hand delivered in the same manner as they currently receive Leave and Earnings statement, etc., if they desire.
[b.] Employees may designate any address for the mail distribution of their paychecks, leave and earnings statement, etc.
[c.] Employees may have their paychecks deposited and credited to their personal account in any financial institution.
Union Proposal No. 3
If the Agency alleges non-negotiability of any of the Union's proposal[s] on the basis of "Agency rules or regulations" pursuant to 5 USC, Section 7117(a)(2), no implementation of any part of the Agency proposals will take place until a negotiability determination has been made by the FLRA. The Union will move promptly to request such a determination.
Id. at 7.
The parties met on August 10, 1987, in their only bargaining session on the changes. According to "the credited testimony of [the Union's representative], during the August 10, 1987 meeting the parties were only concerned with . . . SSC, USAFAC, AH and ISC, which were paid by the SSC F&AO located at Fort Benjamin Harrison" and "[n]o mention whatsoever was made of the Commissary employees[.]" Id.
The Respondents declared that the first proposal was nonnegotiable because it "went to the substance of the [pay lag] change." Id. at 8. The Respondents refused to bargain on the third proposal because "it was a 'ground rule' and therefore already covered in the existing collective bargaining agreement." Id. With respect to the second proposal, the Respondents were "willing to bargain" if the Union would "drop that part of the proposal which made hand delivery of paychecks available to the employees." Id. The Respondents contended that that portion of Proposal 2 was contrary to a 1982 supplemental agreement between the parties providing that "absent the showing of 'genuine hardship,' . . . [pay]checks would be mailed to a designated address or credited to an account at a financial institution." Id. at 6. The Union refused to withdraw that part of the proposal "and the parties agreed that they were at impasse." Id.
On August 13, 1987, the Respondents' representative informed the Union that Respondent FAO, SSC would implement the change beginning on September 18, 1987. The Union immediately filed a request for assistance with the Federal Service Impasses Panel (FSIP). On October 26, 1987, the Respondents' representative "informed the Union that [the] Respondents would begin implementing [the changes] on November 13th with completion to be phased in by February 11, 1988." Id. The changes were implemented in accordance with this schedule.
On November 16, 1987, the FSIP declined to assert jurisdiction over the matter.
Commissary employees were not affected by the above-noted changes because they are paid by Respondent FAO, Fort Sam Houston rather than Respondent FAO, SSC. The changes in the pay lag and the pay day were implemented at the Commissary in November and December of 1987.
The "first time the Union became aware of the change[s] at the Commissary was when two stewards informed the Union about it." Id. at 9. On December 21, 1987, the Union's representative requested, in part, information on "the date that notice of the change[s to be implemented at the Commissary] had been forwarded to the Union[.]" Id. In response, the Respondents' representative stated, in effect, that the Commissary had informed the Union after the change had been implemented. Specifically, the Respondents' representative "replied that the date of the notice was January 11, 1988[.]" Id.
The Commissary "had no authority" to tell FAO, Fort Sam Houston "not to comply with the Army regulation regarding the new pay lag." Id. Similarly, Respondents SSC, USAFAC, AH, and ISC "had no authority" to instruct FAO, SSC "not to comply with the Army regulation[.]" Id. at 10.
If Respondent FAO, Fort Sam Houston were required to return to the former pay lag and pay day at the Commissary it "would be forced to hire a number of additional employees and work many overtime hours." Id. at 9. Since the implementation of the changes, Respondent FAO, SSC has had "a significant cut in the amount of computer time allotted to [that] office which would prevent it from processing the employees['] checks with a pay lag time of less than 12 days." Id. at 9-10.
The parties stipulated that the changes had more than a de minimis impact on unit employees. In this regard, employees testified that "the change in pay days . . . resulted in their checking accounts having insufficient funds to cover a number of outstanding checks." Id. at 10. Employees were thereby forced "to use the automatic loan service attached to their checking accounts" and to incur "unplanned interest payments for such loans." Id.
III. Administrative Law Judge's Decision
The General Counsel alleged before the Administrative Law Judge that Respondents SSC, USAFAC, AH, ISC, and the Commissary violated sections 7116(a)(1) and (5) of the Statute by: (1) refusing to bargain over Proposals 2 and 3; and (2) implementing the pay lag change while the matter was pending before the FSIP. Further, the General Counsel argued that: (1) the Commissary violated sections 7116(a)(1) and (5) of the Statute by making the changes without affording the Union notice and an opportunity to bargain; and (2) that Respondents FAO, SSC and FAO, Fort Sam Houston violated section 7116(a)(1) by implementing the changes while negotiations between the Union and the activities were pending, thereby interfering with the bargaining relationship between those parties.(1)
The Respondents asserted before the Judge that there was no duty to bargain over any of the proposals and, thus, they were free to implement the changes. With respect to Proposal 3, the Respondents argued that the proposal "conflicts with the substance (timing of implementation) of an Agency regulation for which the Authority has not determined that no compelling need exists[.]" Respondents' Post-Hearing Brief at 10. Further, the Respondents claimed that the Union received adequate notice of the proposed change with respect to the Commissary.
The Judge found that the Commissary violated section 7116(a)(1) and (5) of the Statute because "the Union was never given any prior notice of the change and only became aware of same after the F&AO at Fort [Sam] Houston implemented the change[.]" Id. at 11. The Judge found that the first time that the Union's representative "heard of the change in pay-lag at the Commissary was when he was informed by the [U]nion stewards at the Commissary that the change in pay-lag had been implemented." Id. The Judge rejected the Respondent's argument that the July 8, 1987 memorandum provided the Union with notice of the changes to be implemented at the Commissary. In this regard, the Judge noted that the "memorandum specifically stated that it was notice of 'local implementation affecting employees paid by the SSC F&AO.'" Id. at 11-12. "[A]s SSC F&AO did not pay the Commissary employees[,]" the Judge concluded that "the memorandum did not constitute notice to the Union that there was an impending change in the pay-lag at the Commissary." Id. at 12.
The Judge further found that Respondent FAO, Fort Sam Houston violated section 7116(a)(1) of the Statute by "interfer[ing] with the bargaining relationship existing between the Union and the U.S. Army Commissary [when it] effect[ed] the change in pay-lag at a time when the Union had not been given notice of the impending change and the opportunity to bargain in the impact and manner of implementation of the change." Id. at 12.
As to the Union's proposals, the Judge noted that the General Counsel withdrew its allegation that the Respondents violated the Statute by refusing to bargain over Proposal 1. Accordingly, the Judge dismissed the complaint with respect to Proposal 1.
As to Proposal 2, the Judge found that SSC, USAFAC, AH, and ISC violated section 7116(a)(1) and (5) of the Statute "when they refused to bargain on the Union's proposal [Proposal 2] to have the pay checks hand delivered." Id. at 14. The Judge rejected the Respondents' argument that the 1982 supplemental agreement barred negotiation on Proposal 2. In this regard, the Judge noted that "[a]t the time the supplemental agreement was negotiated there was a specific time-lag" and it "was on the basis of that time-lag which had checks being available on a day certain that the Union agreed to have the pay checks delivered in a certain manner[.]" Id. at 13. Had the Union "been aware that there was a possibility that there would be a six day delay on the receipt of their pay checks, it might well have proposed and/or signed a different agreement concerning the delivery of pay checks." Id. at n.3.
Because the Respondents "unilaterally decided to change the day upon which checks would be available to the detriment of the unit employees," the Judge concluded that the Respondents were "estopped from relying on the terms of the supplemental agreement as a defense." Id. at 13. The Judge found that to allow the Respondents "to effect changes in conditions of employment and thereafter refuse to entertain legitimate Union proposals thereon upon the basis of a prior contractual commitment which was executed at a time when the changes were not contemplated[,]" would "destroy the equality of the bargaining relationship between the Union and the Respondent[s] envisioned by the Statute." Id. at 14.
Accordingly, the Judge found that when an agency exercises its rights under the Statute to change conditions of employment, it is obligated to "bargain on any and all legitimate union proposals which bear a substantial relationship to the change irrespective of any prior existing contractual provisions[.]" Id. As Proposal 2 was otherwise negotiable, the Judge concluded that Respondents SSC, USAFAC, AH, and ISC violated section 7116(a)(1) and (5) of the Statute by refusing to bargain over the proposal. Id., citing Federal Employees Metal Trades Council, AFL-CIO and the Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 25 FLRA 465 (1987) (Mare Island Naval Shipyard).
The Judge further found that Respondent FAO, SSC violated section 7116(a)(1) of the Statute by "[e]ffecting the change in pay-lag at a time when the Union and the Activities had not completed bargaining on the impact and implementation of the change." Id. at 14.
With respect to Proposal 3, the Judge found that Respondents SSC, USAFAC, AH, and ISC violated section 7116(a)(1) and (5) of the Statute "when they refused to bargain with the Union on the Union's proposal [Proposal 3] to delay implementation of the change pending completion of the Authority's action on the negotiability appeal." Id. at 15. The Judge rejected the Respondents' claim that the proposal was a ground rules proposal and therefore barred from negotiations by the ground rules article in the parties' collective bargaining agreement. In this regard, the Judge noted that the proposal "goes to the manner of implementation of the change and does not in any way conflict with the ground rule provisions of the contract[.]" Id. Because the Authority previously found that a similar proposal was negotiable under section 7106(b)(2) of the Statute, the Judge found that Respondents SSC, USAFAC, AH, and ISC violated section 7116(a)(1) and (5) of the Statute by refusing to bargain over Proposal 3.
The Judge did not specifically address the Respondents' argument, made at the hearing and in the Respondents' post-hearing brief, that Proposal 3 conflicts with an Agency regulation for which there is a compelling need.
The Judge further found that Respondent FAO, SSC violated section 7116(a)(1) by interfering with the bargaining relationship between the Union and Respondents SSC, USAFAC, AH, and ISC when it implemented the pay lag change prior to the completion of bargaining on the impact and implementation of the change.
With respect to the remedy, the Judge found that a status quo ante remedy was not warranted. In this regard, the Judge noted that "reinstatement of the old pay day would seriously disrupt the Respondent[s'] operations and provide no benefit to the unit employees." Id. at 15. Accordingly, the Judge recommended that Respondents SSC, USAFAC, AH, ISC, and Commissary bargain over the impact and implementation of any changes in pay procedures. Further, the Judge ordered Respondents FAO, SSC and FAO, Fort Sam Houston to make "employees whole for any monies lost due to the change in pay lag." Id.
IV. Positions of the Parties
A. The Respondents
The Respondents except to the Judge's finding that the Commissary did not provide the Union with prior notice of the pay lag change. The Respondents challenge the Judge's finding that the Union was never given any prior notice of the change at the Commissary and contend that "the July 8, 1987, memorandum from Respondents' representative and the hand delivery of the June 3, 1987, letter on August 10, 1987, constituted adequate notice under the Statute to have enabled the Union to request bargaining." Exceptions at 9. As the "first paragraph of the memorandum specifically stated that the change was to apply to all Army civilians[,]" the Union "knew, or should have known, this included Commissary employees." Id. at 9-10.
The Respondents argue that the Union was properly notified because: (1) "[t]here was advance notification of more than five months"; (2) the notice "contained detailed reasons why the change was being made"; (3) the notice "was reinforced on August 10, 1987"; and (4) the notice clearly stated that "the pay lag would be 12 days, that it affected all civilian employees, and that it would be in place by January 2, 1988." Id. at 10. The Respondents note that the notice of the change at the Commissary was "admittedly not as complete as that given by SSC[,]" but contends that it was adequate. Id. Moreover, as the Union received adequate notice of the change in pay procedures affecting Commissary employees, the Respondents argue that the Judge improperly found that Respondent FAO, Fort Sam Houston violated the Statute.
The Respondents also except to the Judge's finding that the 1982 supplemental agreement on paycheck distribution did not bar negotiations on Proposal 2. The Respondents note the Judge's finding that when the 1982 supplemental agreement was negotiated, "there was a specific time lag between the end of the pay period and the delivery of employees' paychecks[.]" Id. at 11. The Respondents state, however, that in making his conclusion, the "Judge assumes, without benefit of testimony or documentary evidence, that the pay lag was the same in 1982 as it was in 1987, and therefore speculates" that there was a relationship between the pay lag and the method of distributing paychecks. Id. at 12. According to the Respondents, "employees who opt for worksite distribution would get their cash later than under the two methods." Id. (emphasis in original) (citation to transcript omitted). Therefore, the Respondents maintain that "[t]he reality of the situation is that the pay lag had nothing to do with the Union's decision to sign the supplemental agreement in 1982." Id. As there is a written, binding agreement stipulating how paychecks will be distributed, the Respondents contend that the Judge should have found Proposal 2 to be nonnegotiable.
The Respondents further argue that the Judge "erred in rejecting the Respondents' position that the Union's proposal to have worksite paycheck distribution conflicted with the right to assign employees and assign work." Id. at 13 (emphasis omitted). Because "the instant proposal requires the assignment of tasks not currently being performed to people not currently on board to perform them[,]" the Respondents argue that the proposal "infringes excessively on [their] rights to assign employees and assign work." Id. at 13, 14.
As to Proposal 3, the Respondents contend that the Judge erred in failing to find that the proposal is contrary to section 7117(b)(2) of the Statute. In this regard, the Respondents argue that the proposal raises compelling need issues which "must be resolved in the context of negotiability determinations made under section 7117(b) of the Statute, rather than in the context of unfair labor practice proceedings." Id. at 16, citing Aberdeen Proving Ground.
Finally, the Respondents contend that the Judge's make whole remedy is contrary to 5 U.S.C. § 5596 (the Back Pay Act) or is otherwise inconsistent with law. Specifically, the Respondents argue that under the Back Pay Act, employees who have established that they were affected by an agency unfair labor practice are entitled only to payment concerning "a withdrawal or reduction in the pay, allowances, or differentials of employees" and not "interest charged the employee[s] by a financial institution." Id. at 18. As the Judge's recommended Order required Respondents FAO, SSC and FAO, Fort Sam Houston to pay interest rather than "legitimate employee benefits in the nature of employment compensation or emoluments[,]" the Respondents argue that the remedy is contrary to the Back Pay Act. Id. at 19, citing U.S. Customs Service, Chicago-O'Hare and National Treasury Employees Union, Chapter 172, 23 FLRA 366 (1986) (Customs Service); and Community Services Administration and National Council of CSA Locals, AFGE, AFL-CIO, 7 FLRA 206 (1981).
Aside from the Back Pay Act, the Respondents contend that decisions of the Comptroller General prevent them from making payment pursuant to the Judge's recommended Order. The Respondents note that the Comptroller General found that agencies were without authority to pay employees amounts for earnings lost from their Thrift Savings Accounts due to administrative error (68 Comp. Gen. 220 (1989)) and reimbursement of check overdraft charges due to the agency's inadvertent failure to deposit the employee's paycheck (60 Comp. Gen. 450 (1981) and Comp. Gen. No. B-228632 (March 10, 1988) (unpublished)), because such payments were not authorized by statute or regulation. As there is "no other statutory authority" that would allow the make-whole remedy in this case, the Respondents maintain that the Judge's recommended Order is contrary to law. Exceptions at 20.
B. The General Counsel
The General Counsel contends that the Judge's decision "[should] be affirmed in all respects." Opposition at 7. Incorporating the arguments made in its post-hearing brief, the General Counsel argues that the Judge properly found that: (1) Respondent Commissary violated the Statute by failing to notify the Union before implementing the pay lag change; (2) Respondent FAO, Fort Sam Houston violated the Statute by interfering with the bargaining relationship between the Union and the Commissary when it implemented the pay lag change before the completion of bargaining; (3) Proposals 2 and 3 were negotiable and that, therefore, Respondents SSC, USAFAC, AH, and ISC violated the Statute by refusing to bargain over the proposals; and (4) Respondent FAO, SSC violated the Statute by interfering with the bargaining relationship between the Union and Respondents SSC, USAFAC, AH, and ISC when it implemented the pay lag change before the completion of bargaining.
With respect to the remedy recommended by the Judge, the General Counsel notes the Respondents' reference to the Back Pay Act but argues that "[n]ot all monetary remedies for unfair labor practices . . . are covered by the Back Pay Act." Opposition at 4. Specifically, the General Counsel notes that "monetary remedies not covered by the Back Pay Act are those involving official time [and] travel and per diem expenses related to union representational functioning." Id. (emphasis in original).
The General Counsel states that "[t]he Back Pay Act is not applicable to the remedy ordered in this case." Id. Instead, the General Counsel contends that "the Statute itself authorizes" the remedy in this case. Id. In this regard, the General Counsel notes that under section 7118(a)(7) of the Statute, the Authority may remedy an unfair labor practice through "a cease and desist order, a bargaining order, reinstatement in accordance with the Back Pay Act or 'such other action as will carry out the purpose of this chapter.'" Id. at 5 (emphasis in original). The General Counsel also argues that: (1) the Comptroller General has recognized that, in the context of an unfair labor practice case, "the Authority's remedial action may require the expenditure of appropriated funds, even without a formal finding of a violation"; and (2) the Authority has previously upheld monetary remedies "not arising from the Back Pay Act but authorized under the Statute as the result of unfair labor practice violations[.]" Id. at 5, 6.
The General Counsel maintains that the Respondents have "made no showing that reimbursement of employees for monies lost, including interest, is contrary to law or inherently inappropriate." Id. at 6. The General Counsel distinguishes Customs Service, cited by the Respondents, noting that the "commuting expenses [in that case] were found not to be reimbursable because they are specifically excluded by Federal travel laws and regulations." Id. at 9.
V. Analysis and Conclusions
A. Respondent Commissary
We agree with the Judge that Respondent Commissary violated section 7116(a)(1) and (5) of the Statute by failing to provide the Union with adequate notice and an opportunity to bargain over the pay lag change.
As found by the Judge, the first time that the Union's representative discovered that the pay lag change had been implemented at the Commissary was after implementation in December, 1987. On December 21, 1987, the Union's representative submitted a request for information to Respondent Commissary. As part of the request, the Union asked when the Commissary provided the Union with notice of the pay lag change. On January 11, 1988, the Commissary's representative "replied that the date of the notice was January 11, 1988." Judge's Decision at 9. In effect, the Commissary's representative admitted in the reply that prior notice of the change at the Commissary was not provided to the Union.
We reject the Respondents' argument that the July 8, 1987 memorandum provided adequate notice to the Union of the pay lag change at the Commissary. Although the first sentence of the memorandum states that the pay lag change was to apply to all Army civilian employees, the second sentence specifically states that the memorandum "was 'notification of local implementation affecting employees paid by [Respondent] SSC F&AO.'" Id. at 7. As noted previously, Commissary employees are paid by FAO, Fort Sam Houston, not by FAO, SSC. Therefore, by its terms, the memorandum did not apply to the Commissary.
We also reject the Respondents' argument that the June 3, 1987 memorandum, presented to the Union at the August 10, 1987 bargaining session, constituted adequate notice. The Judge found that "[n]o mention whatsoever was made of the Commissary employees" at the August 10, 1987 bargaining session. Id. Moreover, the pay lag change was implemented at the Commissary in November and December of 1987, but nothing in the June 3, 1987 memorandum indicated that the change was to be implemented at that time.
The obligation to provide notice of changes in conditions of employment rests with the agency or activity. See Department of Health and Human Services, Public Health Service, Health Resources and Services Administration, Oklahoma City Area, Indian Health Service, Oklahoma City, Oklahoma, 31 FLRA 498, 508-509 (1988), enforced as to other matters sub nom. DHHS, Indian Health Service, Oklahoma City v. FLRA, 885 F.2d 911 (D.C. Cir. 1989). As Respondent Commissary failed to provide the Union with adequate notice and an opportunity to bargain over the pay lag change at the Commissary, we find that Respondent Commissary violated section 7116(a)(1) and (5) of the Statute.
Further, because Respondent FAO, Fort Sam Houston implemented the pay lag change before the Commissary fulfilled its bargaining obligation, we find that FAO, Fort Sam Houston interfered with the bargaining relationship between the Union and the Commissary in violation of the Statute. See Headquarters, Defense Logistics Agency, Washington, D.C., 22 FLRA 875 (1986) (entities of the same agency, but not in the same chain of command as the activity with exclusive recognition, violate section 7116(a)(1) of the Statute by taking action which conflicts with the bargaining relationship between the parties at the level of exclusive recognition). By interfering with the bargaining relationship between the Union and the Commissary, FAO, Fort Sam Houston violated section 7116(a)(1) of the Statute.
B. Proposals 2 and 3
1. Proposal 2
We agree with the Judge that Respondents SSC, USAFAC, AH, and ISC violated section 7116(a)(1) and (5) of the Statute by refusing to bargain over Proposal 2, but for the following reasons.
In Internal Revenue Service, Washington, D.C., 39 FLRA 1568 (1991) (IRS), petition for review filed sub nom. Internal Revenue Service v. FLRA, No. 91-1247 (D.C. Cir. May 24, 1991), the Authority set forth the approach to be followed in cases involving an alleged statutory violation and allegations that a collective bargaining agreement permits the action that is alleged to constitute an unfair labor practice. The Authority reaffirmed that "[t]he established approach . . . to resolve defenses based on a collective bargaining agreement to alleged interference with statutory rights is to determine whether the charging party has clearly and unmistakably waived its statutory right." IRS, 39 FLRA at 1574.
Applying that analysis to Proposal 2 in this case, Respondents SSC, USAFAC, AH, and ISC had a duty to bargain over the impact and implementation of the decision to change the pay lag unless the Union clearly and unmistakably waived its right to bargain about those matters. See Department of the Navy, Marine Corps Logistics Base, Albany, Georgia, 39 FLRA 1060 (1991) (Marine Corps Logistics Base); National Federation of Federal Employees and Naval Air Systems Command, Naval Plant Representative Office, St. Louis, Missouri, 38 FLRA 1191 (1990) (Naval Air Systems Command); and American Federation of Government Employees, Local 1698 and U.S. Department of the Navy, Naval Aviation Supply Office, Philadelphia, Pennsylvania, 38 FLRA 1016 (1990) (U.S. Department of the Navy).(2)
According to the General Counsel, Proposal 2 addresses the impact and implementation of the Respondents' decision to change the pay lag. That is, Proposal 2 is meant to constitute a procedure for Respondents SSC, USAFAC, AH, and ISC to observe in exercising their authority or an appropriate arrangement for employees adversely affected by the exercise of the Respondents' authority under section 7106(b)(2) and (3) of the Statute. See Marine Corps Logistics Base, 39 FLRA at 1065.
As to whether the proposal relates to the change in the pay lag, we adopt the Judge's conclusion that Proposal 2 sufficiently relates to the impact and implementation of the change in the pay lag. As found by the Judge, employees made numerous complaints of late paychecks and "[i]t is reasonable to conclude that lengthening this [pay lag] period would trigger employee concerns over where and how quickly they could have their checks in hand." Judge's Decision at 10. See U.S. Department of the Treasury, Customs Service, Washington, D.C. and Customs Service, Northeast Region, Boston, Massachusetts, 38 FLRA 770, 783-84 (1990) (U.S. Department of the Treasury).
As to whether the proposal is negotiable, we find, contrary to the Respondents' assertion, that the proposal does not directly interfere with management's rights to assign work and assign employees. The proposal does not require management to assign specific employees or to assign specific duties to particular employees. See National Federation of Federal Employees, Local 2099 and Department of the Navy, Naval Plant Representative Office, St. Louis, Missouri, 35 FLRA 362, 367-68 (1990). Moreover, the parties' 1982 agreement allows for an exemption to mail delivery or direct deposit of paychecks and, therefore, contemplates that duties related to the hand delivery of paychecks will continue to be assigned to Agency personnel in certain circumstances. See Mare Island Naval Shipyard, 25 FLRA at 474 (proposal on paycheck distribution did not interfere with the agency's rights to assign employees or assign work where the agency's present policy contemplated that duties related to worksite pay delivery would continue to be assigned to agency personnel). Accordingly, we find that the proposal does not directly interfere with management's rights, but constitutes a negotiable procedure within the meaning of section 7106(b)(2) of the Statute.
We further find that the Union did not waive its statutory right to bargain over Proposal 2 and conclude that the agreement does not bar negotiating over Proposal 2.
The 1982 supplemental agreement provides, in part, that employees will have their paychecks "mailed to their designated mailing address or for credit to an account with a financial institution." Respondents' Exhibit 2. The agreement further states that "[e]mployees experiencing 'genuine' hardship by the above requirement . . . may submit the facts to their servicing F&AO and request an exemption." Id. Contrary to the Respondents' assertion, nothing in the agreement states that there will no longer be worksite pay delivery. As noted above, the agreement provides for an exemption to the prescribed methods of pay delivery. The agreement did not eliminate worksite pay delivery. Under these circumstances, we find that the Union did not clearly and unmistakably waive its right to bargain about worksite pay delivery. See, for example, IRS (the union did not clearly and unmistakably waive its right to designate representatives); and U.S. Department of the Treasury, 38 FLRA at 784-85 (nothing in the plain wording of the agreement indicates that the union waived its right to bargain over proposed changes).
Accordingly, we conclude that the parties' 1982 supplemental agreement does not prevent bargaining over Proposal 2, a proposal addressing the impact and implementation of the change in the pay lag.
Further, because Respondent FAO, SSC implemented the pay changes before Respondents SSC, USAFAC, AH, and ISC fulfilled their bargaining obligation, we find that FAO, SSC interfered with the bargaining relationship between the Union and those Respondents in violation of the Statute. See Headquarters, Defense Logistics Agency, Washington, D.C., 22 FLRA 875 (1986) (entities of the same agency, but not in the same chain of command as the activity with exclusive recognition, violate section 7116(a)(1) of the Statute by taking action which conflicts with the bargaining relationship between the parties at the level of exclusive recognition). By interfering with the bargaining relationship between the Union and Respondents SSC, USAFAC, AH, and ISC, we conclude that Respondent FAO, SSC violated section 7116(a)(1) of the Statute.
2. Proposal 3
Consistent with our decision in Department of the Army, U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison, Indiana and Finance and Accounting Office for the Secretary of the Army, St. Louis, Missouri, 41 FLRA No. 76 (1991), we find, contrary to the Judge, that Proposal 3 is not properly before the Authority in this unfair labor practice proceeding.
D. Remedy
Sections 7105(g) and 7118 of the Statute vest the Authority with broad powers to remedy violations of the Statute. See generally National Treasury Employees Union v. FLRA, 910 F.2d 964 (D.C. Cir. 1990) (en banc). Specifically, section 7105(g)(3) provides that in carrying out its functions under the Statute, the Authority may "require an agency . . . to take any remedial action it considers appropriate to carry out the policies of this chapter." Further, section 7118(a)(7) specifies the remedies available in unfair labor practice cases and includes "such other action as will carry out the purposes of this chapter."
Pursuant to these provisions of the Statute, the Authority has previously ordered monetary reimbursement for losses that are not covered by the Back Pay Act when the losses resulted from the agency's unlawful action and when such reimbursement was not shown to be inconsistent with another law. See, for example, U.S. Department of Labor, Washington, D.C. and U.S. Department of Labor, Employment Standards Administration, Boston, Massachusetts, 37 FLRA 25, 41 (1990) (reimbursement was ordered for monies spent to pay for water coolers when the agency ceased providing water coolers without providing the union with notice and an opportunity to bargain about the change); Department of the Army, Dugway Proving Ground, Dugway, Utah, 23 FLRA 578 (1986) (reimbursement was ordered for increased expenses caused when employees at a remote station were illegally evicted from government housing).
In addition, the U.S. Court of Appeals for the District of Columbia Circuit has held that the Authority may grant make-whole relief to employees adversely affected by an agency's failure to bargain over the impact and implementation of a change in conditions of employment. Noting that the Authority's role in adjudicating unfair labor practice cases in the federal sector is similar to the National Labor Relations Board's role in the private sector, the court stated that there is "a weighty preference in favor of a direct grant of individualized 'make whole' relief--especially in the form of a monetary award--for losses actually suffered by employees." American Federation of Government Employees, SSA Council 220 v. FLRA, 840 F.2d 925, 930 (D.C. Cir. 1988).
As the Statute authorizes the Authority to exercise broad powers in remedying unfair labor practices and as the Respondents have cited no law precluding the Authority from granting the Judge's remedy in the circumstances of this case, we adopt the Judge's recommended remedy with respect to the actions we have found to constitute unfair labor practices. We note that a direct causal connection has been established between the Respondents' unlawful action and the losses to employees. In this regard, the parties stipulated that the change in the pay lag forced employees "to use the automatic loan service attached to their checking accounts" and to incur "unplanned interest payments for such loans." Judge's Decision at 10. Therefore, in addition to providing for a cease and desist order, we will require Respondents FAO, Fort Sam Houston and FAO, SSC to reimburse employees for the increased costs that they incurred when Respondents FAO, Fort Sam Houston and FAO, SSC implemented the changes in the pay lag prior to the completion of bargaining.
We reject the Respondents' argument that the remedy is contrary to the Back Pay Act or is otherwise inconsistent with law. As we noted above, the Authority has ordered monetary reimbursement for losses that are not covered by the Back Pay Act in situations where there was no showing that such reimbursement was inconsistent with another law. We also reject the Respondents' reliance on Comptroller General decisions stating that the United States Government may not reimburse employees for monetary losses when such payments were not authorized by statute or regulation. The Comptroller General decisions relied on by the Respondents do not apply to this case because, as we stated previously, reimbursing employees for their monetary losses in this case is consistent with the broad remedial powers authorized by the Statute.
Moreover, we note that 68 Comp. Gen. 220 (1989), cited by the Respondents, has been effectively overruled by the Thrift Savings Plan Technical Amendments Act of 1990, Pub. L. No. 101-335 (to be codified at 5 U.S.C. § 8432a). In 68 Comp. Gen. 220, the Comptroller General found that agencies were without authority to pay employees amounts for earnings lost from their Thrift Savings Accounts due to administrative error. However, the Thrift Savings Plan Technical Amendments Act of 1990 provides the statutory authority for payments by agencies of lost earnings from Thrift Savings Accounts due to agency error.
Accordingly, we adopt the Judge's remedy, except as modified below.(3)
VI. Order
A. 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), the U.S. Army Commissary, Fort Benjamin Harrison, Indiana, shall:
1. Cease and desist from:
(a) Failing and refusing to provide the American Federation of Government Employees, Local 1411, AFL-CIO, the exclusive representative of a unit of its employees, the opportunity to bargain, to the extent consistent with law and regulations, on the pay lag changes.
(b) Failing to provide timely notice to the American Federation of Government Employees, Local 1411, AFL-CIO, the exclusive representative of a unit of its employees, of its intent to change the pay lag.
(c) 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 the American Federation of Government Employees, Local 1411, AFL-CIO, the exclusive representative of a unit of its employees, to the extent consistent with law and regulations, on the pay lag changes.
(b) Notify the American Federation of Government Employees, Local 1411, AFL-CIO, the exclusive representative of a unit of its employees, of any intention to change pay procedures and, on request, bargain with the American Federation of Government Employees, Local 1411, AFL-CIO, to the extent consistent with law and regulations, on any decision to change the pay procedures.
(c) Post at its facilities at Fort Benjamin Harrison, Indiana, copies of the attached Notice marked Appendix A on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commanding Officer and shall be posted in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted and shall be maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Chicago Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.
B. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Finance and Accounting Office, Fort Sam Houston, Texas, shall:
1. Cease and desist from:
(a) Interfering with the bargaining relationship between the American Federation of Government Employees, Local 1411, AFL-CIO, and the U.S. Army Commissary, Fort Benjamin Harrison, Indiana, by changing the pay lag at a time when the Activity and the Union had not completed bargaining on the pending change in the pay lag.
(b) In any like or related manner, interfering with, restraining, or coercing employees of the U.S. Army Commissary, Fort Benjamin Harrison, Indiana, 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) Reimburse unit employees for all monies lost or interest charged as a result of the change in the pay lag at a time when negotiations on the change had not been completed.
(b) Post at the facilities of the U.S. Army Commissary, Fort Benjamin Harrison, Indiana, where bargaining unit employees represented by the American Federation of Government Employees, Local 1411, AFL-CIO, are located, copies of the attached Notice marked Appendix B on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Director of the Finance and Accounting Office, Fort Sam Houston, Texas, and shall be posted in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted and shall be maintained for 60 consecutive days thereafter. 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, Chicago Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.
C. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the U.S. Army Soldier Support Center, the U.S. Army Finance and Accounting Center, Hawley U.S. Army Community Hospital, and the U.S. Army Information Systems Command, all located at Ft. Benjamin Harrison, Indiana, shall:
1. Cease and desist from:
(a) Failing and refusing to negotiate in good faith with the American Federation of Government Employees, Local 1411, AFL-CIO, the exclusive representative of units of their employees, concerning procedures and appropriate arrangements for employees adversely affected by the changes in the pay lag.
(b) In any like or related manner, interfering with, restraining, or coercing their 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, negotiate in good faith with the American Federation of Government Employees, Local 1411, AFL-CIO, the exclusive representative of units of their employees, concerning procedures and appropriate arrangements for employees adversely affected by the changes in the pay lag.
(b) Post at their facilities at Fort Benjamin Harrison, Indiana, copies of the attached Notice marked Appendix C on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commanding Officer and shall be posted in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted and shall be maintained for 60 consecutive days thereafter. 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, Chicago Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.
D. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Finance and Accounting Office, U.S. Army Soldier Support Center, Fort Benjamin Harrison, Indiana, shall:
1. Cease and desist from:
(a) Interfering with the bargaining relationship between the American Federation of Government Employees, Local 1411, AFL-CIO and the U.S. Army Soldier Support Center, the U.S. Army Finance and Accounting Center, Hawley U.S. Army Community Hospital, and the U.S. Army Information Systems Command, Fort Benjamin Harrison, Indiana, by changing the pay lag at a time when the Activities and the Union had not completed bargaining on the impact and implementation of the pending change in the pay lag.
(b) In any like or related manner, interfering with, restraining, or coercing employees of the U.S. Army Soldier Support Center, the U.S. Army Finance and Accounting Center, Hawley U.S. Army Community Hospital, and the U.S. Army Information Systems Command, Fort Benjamin Harrison, Indiana, 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) Reimburse unit employees for all monies lost or interest charged as a result of the change in the pay lag at a time when negotiations on the change had not been completed.
(b) Post at the facilities of Fort Benjamin Harrison, Indiana, where bargaining unit employees represented by the American Federation of Government Employees, Local 1411, AFL-CIO, are located, copies of the attached Notice marked Appendix D on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Director of the Finance and Accounting Office, Fort Benjamin Harrison, Indiana, and shall be posted in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted and shall be maintained for 60 consecutive days thereafter. 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, Chicago Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.
E. The portion of the consolidated complaint alleging that the U.S. Army Soldier Support Center, the U.S. Army Finance and Accounting Center, Hawley U.S. Army Community Hospital, and the U.S. Army Information Systems Command, Fort Benjamin Harrison, Indiana violated the Statute by refusing to bargain with the Union over the substance of the pay lag change is dismissed.
WE WILL NOT fail and refuse to provide the American Federation of Government Employees, Local 1411, AFL-CIO, the exclusive representative of a unit of our employees, the opportunity to bargain, to the extent consistent with law and regulations, on the pay lag changes.
WE WILL NOT fail to provide timely notice to the American Federation of Government Employees, Local 1411, AFL-CIO, the exclusive representative of a unit of our employees, of our intent to change the pay lag.
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 Statute.
WE WILL, upon request, bargain with the American Federation of Government Employees, Local 1411, AFL-CIO, the exclusive representative of a unit of our employees, to the extent consistent with law and regulations, on the pay lag changes.
WE WILL notify the American Federation of Government Employees, Local 1411, AFL-CIO, the exclusive representative of a unit of our employees, of any intention to change pay procedures and, on request, bargain with the American Federation of Government Employees, Local 1411, AFL-CIO, to the extent consistent with law and regulations, on any decision to change the pay procedures.
U.S. Army Commissary, FortBenjamin Harrison, Indiana
(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, Chicago Region, Federal Labor Relations Authority, whose address is: 175 West Jackson Boulevard, Suite 1359-A, Chicago, IL 60604, and whose telephone number is: (312) 353-6306.
WE WILL NOT interfere with the bargaining relationship between the American Federation of Government Employees, Local 1411, AFL-CIO, and the U.S. Army Commissary, Fort Benjamin Harrison, Indiana, by changing the pay lag at a time when the Activity and the Union had not completed bargaining on the pending change in the pay lag.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees of the U.S. Army Commissary, Fort Benjamin Harrison, Indiana, in the exercise of their rights assured by the Statute.
WE WILL reimburse unit employees for all monies lost or interest charged as a result of the change in the pay lag at a time when negotiations on the change had not been completed.
Finance and Accounting OfficeFort Sam Houston, Texas
(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, Chicago Region, Federal Labor Relations Authority, whose address is: 175 West Jackson Boulevard, Suite 1359-A, Chicago, IL 60604, and whose telephone number is: (312) 353-6306.
WE WILL NOT fail and refuse to negotiate in good faith with the American Federation of Government Employees, Local 1411, AFL-CIO, the exclusive representative of units of our employees, concerning procedures and appropriate arrangements for employees adversely affected by the changes in the pay lag.
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 Statute.
WE WILL, upon request, negotiate in good faith with the American Federation of Government Employees, Local 1411, AFL-CIO, the exclusive representative of units of our employees, concerning procedures and appropriate arrangements for employees adversely affected by the changes in the pay lag.
U.S. Army Soldier Support Center, theU.S. Army Finance and Accounting
Center, Hawley U.S. Army Community
Hospital, and the U.S. Army
Information Systems Command, Fort
Benjamin Harrison, Indiana
(Activities)
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, Chicago Region, Federal Labor Relations Authority, whose address is: 175 West Jackson Blvd., Suite 1359-A, Chicago, Illinois 60604 and whose telephone number is: (312) 353-6306.
WE WILL NOT interfere with the bargaining relationship between the American Federation of Government Employees, Local 1411, AFL-CIO and the U.S. Army Soldier Support Center, the U.S. Army Finance and Accounting Center, Hawley U.S. Army Community Hospital, and the U.S. Army Information Systems Command, Fort Benjamin Harrison, Indiana, by changing the pay lag at a time when the Activities and the Union had not completed bargaining on the impact and implementation of the pending change in the pay lag.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees of the U.S. Army Soldier Support Center, the U.S. Army Finance and Accounting Center, Hawley U.S. Army Community Hospital, and the U.S. Army Information Systems Command, Fort Benjamin Harrison, Indiana, in the exercise of their rights assured by the Statute.
WE WILL reimburse unit employees for all monies lost or interest charged as a result of the change in the pay lag at a time when negotiations on the change had not been completed.
Finance and Accounting OfficeFort Benjamin Harrison, Indiana
(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, Chicago Region, Federal Labor Relations Authority, whose address is: 175 West Jackson Blvd., Suite 1359-A, Chicago, Illinois 60604 and whose telephone number is: (312) 353-6306.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. In its brief to the Judge, the General Counsel withdrew its allegation that the Respondents violated the Statute by refusing to bargain over Proposal 1. Noting that the Respondents argued that Proposal 1 conflicted with an Agency regulation for which there was a compelling need, the General Counsel conceded in its brief to the Judge that under the Supreme Court's decision in Federal Labor Relations Authority v. Aberdeen Proving Ground, 485 U.S. 409 (1988) (Aberdeen Proving Ground), and the Authority's subsequent decision in Federal Emergency Management Agency, 32 FLRA 502 (1988) (FEMA), issues concerning the existence of a compelling need for an agency regulation may not be resolved in unfair labor practice proceedings.
2. Under Naval Air Systems Command and U.S. Department of the Navy, the Authority found that an agency has the obligation to bargain over the substance and the impact and implementation of its decision to change the pay lag. However, Proposal 2 concerns only the impact and the implementation of the Respondents' decision to change the pay lag.
3. In his recommended Order, the Judge directed that Notices posted by the Respondents be signed by "an appropriate official." The Authority's practice is to specify that notices shall be signed by an official designated by the Authority rather than one determined by a respondent. U.S. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 887 (1990). We will modify the recommended Order accordingly.