Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma (Respondent) and American Federation of Government Employees, Local 916, AFL-CIO (Complainant)

 3 FLRA No. 82
 
 OKLAHOMA CITY AIR LOGISTICS CENTER,
 TINKER AIR FORCE BASE, OKLAHOMA
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 916
 Complainant
 
                                            Case No. 6-CA-62
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
 ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD
 NOT ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT, AND
 RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
 THEREAFTER, THE GENERAL COUNSEL FILED EXCEPTIONS WITH RESPECT TO THE
 ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 C.F.R. PART XIV(1980)) AND SECTION 7118 OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135), THE AUTHORITY
 HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
 HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS
 ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER, AND THE ENTIRE RECORD IN THE
 SUBJECT CASE, INCLUDING THE GENERAL COUNSEL'S EXCEPTIONS, THE AUTHORITY
 HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATION.
 
    IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THE AUTHORITY
 CONCLUDES THAT A FINDING OF A VIOLATION OF SECTION 7116(A)(1) OF THE
 STATUTE CANNOT BE PREDICATED UPON THE ALLEGED BYPASS OF THE UNION BY THE
 AGENCY.  AS NOTED IN THE RECOMMENDED DECISION OF THE ADMINISTRATIVE LAW
 JUDGE, THIS ISSUE WAS FIRST RAISED BY THE GENERAL COUNSEL IN HIS
 POST-HEARING BRIEF, AND IT DOES NOT APPEAR THAT THE AGENCY WAS
 ADEQUATELY APPRISED OF THE ISSUE, OR THAT THE MATTER WAS FULLY
 LITIGATED, AT THE HEARING.  UNDER THESE CIRCUMSTANCES, THE AUTHORITY IS
 PRECLUDED FROM FINDING THAT THE AGENCY VIOLATED SECTION 7116(A)(1) OF
 THE STATUTE BY THE BYPASS OF THE UNION CLAIMED BY THE GENERAL COUNSEL.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 6-CA-62 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JUNE 27, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    STEVEN M. ANGEL, ESQUIRE
 
    OFFICE OF THE GENERAL COUNSEL
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    REGION VI, P.O. BOX 2640
 
    DALLAS, TEXAS 75231
 
                          FOR THE GENERAL COUNSEL
 
    MAJOR MICHAEL J. PETHERICK, ESQUIRE
 
    LABOR RELATIONS COUNSEL
 
    OFFICE OF THE STAFF JUDGE ADVOCATE
 
    OKLAHOMA CITY AIR LOGISTICS CENTER
 
    TINKER AIR FORCE BASE, OKLAHOMA 73145
 
                            FOR THE RESPONDENT
 
    BEFORE:  GARVIN LEE OLIVER
 
                         ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUE, 92 STAT. 1191, 5 U.S.C. SECTION 7101 ET SEQ., AS A
 RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT DATED AUGUST 31, 1979, AND
 AN AMENDED COMPLAINT DATED NOVEMBER 6, 1979, FILED BY THE REGIONAL
 DIRECTOR, REGION 6, FEDERAL LABOR RELATIONS AUTHORITY, DALLAS, TEXAS
 AGAINST THE OKLAHOMA CITY AIR LOGISTICS CENTER (AFLC), TINKER AIR FORCE
 BASE, OKLAHOMA-(RESPONDENT).
 
    THE AMENDED COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED
 5 U.S.C. SECTION 7116(A)(1) AND (5) BY UNILATERALLY ANNOUNCING A CHANGE
 IN EXISTING CONDITIONS OF EMPLOYMENT CONCERNING FLEXITIME OR OR ABOUT
 APRIL 16, 1979 AND, THEREAFTER, BY UNILATERALLY IMPLEMENTING A FLEXITIME
 PROGRAM ON OR ABOUT MAY 28, 1979 WITHOUT FURNISHING THE AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 916 (CHARGING PARTY
 OR UNION) AN OPPORTUNITY TO BARGAIN ON SUCH CHANGES OR ON THE IMPACT AND
 IMPLEMENTATION OF SUCH CHANGES.
 
    RESPONDENT'S ANSWER DENIED THE ALLEGATIONS AND ASSERTED THAT THE
 OBLIGATION TO BARGAIN WAS MODIFIED BY A MEMORANDUM OF UNDERSTANDING
 BETWEEN RESPONDENT AND THE UNION SIGNED ON AUGUST 19, 1977.
 
    A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED AT OKLAHOMA
 CITY, OKLAHOMA.  THE GENERAL COUNSEL, FLRA AND THE RESPONDENT WERE
 REPRESENTED BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE
 RELEVANT EVIDENCE, EXAMINE AND CROSS-EXAMINE WITNESSES, AND FILE
 POST-HEARING BRIEFS.
 
    BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
 ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
 FACTS, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    1.  ON JULY 22, 1976 RESPONDENT AND THE UNION EXECUTED A COLLECTIVE
 BARGAINING AGREEMENT EFFECTIVE UNTIL JULY 21, 1979.  (JOINT EX. 1).
 
    2.  THE AGREEMENT PROVIDED, IN PART, AS FOLLOWS:
 
                                ARTICLE XIX
 
                              WORK SCHEDULES
 
    SECTION A:  DEFINITIONS:
 
   .          .          .          .
 
 
    (2) TOUR OF DUTY:  THE DAYS OF THE ADMINISTRATIVE WORKWEEK THAT AN
 EMPLOYEE IS REGULARLY
 
    SCHEDULED TO WORK.
 
    (4) HOURS OF WORK:  THE HOURS OF EACH WORKDAY IN THE ADMINISTRATIVE
 WORKWEEK THAT AN
 
    EMPLOYEE IS REGULARLY SCHEDULED TO WORK.
 
    (5) SHIFTS:  DAY SHIFT, SWING SHIFT AND GRAVEYARD SHIFT.
 
   .          .          .          .
 
 
    SECTION C:
 
    . . . BEFORE ANY CHANGES IN SHIFTS OR TOURS OF DUTY ARE PUT INTO
 EFFECT, THE EMPLOYER WILL
 
    NOTIFY AND AFFORD THE UNION AN OPPORTUNITY TO MEET AND CONFER ON SUCH
 CHANGES . . .
 
                                ARTICLE XLI
 
              NEGOTIATIONS DURING THE TERM OF THIS AGREEMENT
 
    SECTION A.  THE EMPLOYER AND THE UNION, THROUGH APPROPRIATE
 REPRESENTATIVES, SHALL MEET AND CONFER IN GOOD FAITH WITH RESPECT TO
 PERSONNEL POLICIES AND PRACTICES, AND MATTERS AFFECTING WORKING
 CONDITIONS THAT ARE NOT COVERED BY THIS AGREEMENT . . .  THE PARTIES MAY
 NEGOTIATE AN AGREEMENT, OR ANY QUESTION ARISING THEREUNDER . . . AND
 EXECUTE A WRITTEN AGREEMENT OR MEMORANDUM OF UNDERSTANDING.
 
    SECTION B.  ALL WRITTEN AGREEMENTS OR MEMORANDUMS OF UNDERSTANDING
 REACHED UNDER THE PROVISIONS OF THIS ARTICLE SHALL BE ENFORCEABLE UNDER
 THE PROVISIONS OF THE NEGOTIATED GRIEVANCE PROCEDURE.
 
   .          .          .          .
 
 
    SECTION E.  FOR THE PERIOD OF ITS DURATION, THIS AGREEMENT WILL HAVE
 THE FULL FORCE AND EFFECT OF REGULATIONS WITHIN THE UNIT.  DURING THIS
 PERIOD, THE AGREEMENT WILL BE MODIFIED ONLY BY THE PASSAGE OF
 LEGISLATION, THE ISSUANCE OF CIVIL SERVICE COMMISSION OR OTHER
 CONTROLLING REGULATIONS, THE ISSUANCE OF AIR FORCE REGULATIONS REQUIRED
 BY LAW OR OTHER APPROPRIATE AUTHORITIES, OR BY MUTUAL AGREEMENT OF THE
 PARTIES.
 
    SECTION F.  ANY PROPOSED CHANGE IN EXISTING AGENCY REGULATIONS
 RESULTING IN CHANGES IN PERSONNEL POLICIES, PRACTICES, OR MATTERS
 AFFECTING WORKING CONDITIONS NOT SPECIFICALLY COVERED IN THIS AGREEMENT
 WILL NOT BE IMPLEMENTED WITHOUT PRIOR NOTIFICATION TO THE UNION . . .
 THE UNION MAY REQUEST A MEETING TO MEET AND CONFER WITH THE EMPLOYER . .
 .
 
    (3) ONLY THE DESIGNATED UNION REPRESENTATIVE SHALL HAVE THE AUTHORITY
 TO BIND THE UNION ON SUCH ACCORDS THAT MAY BE REACHED AT THESE MEETINGS.
  THESE ACCORDS MAY NOT CONFLICT WITH EXISTING PROVISIONS OF THIS
 AGREEMENT.  (JOINT EX. 1).
 
    3.  IN AUGUST 1977 RESPONDENT AND THE UNION MET TO NEGOTIATE THE
 IMPLEMENTATION OF FLEXITIME AT THE OKLAHOMA CITY AIR LOGISTICS CENTER.
 (TR. 54;  118;  142).  MR. PAUL KETCHERSIDE, PRESIDENT OF THE LOCAL,
 REPRESENTED THE UNION.  RESPONDENT WAS REPRESENTED BY JOSEPH G.  LYNCH,
 PRINCIPAL SPOKESMAN, CHARLES L. WHITLEY, CHIEF NEGOTIATOR, DALE
 WILLIAMS, LABOR RELATIONS OFFICER, AND ARTHUR SANDERSON.  (TR. 54-55;
 122;  142).  THE PARTIES CAREFULLY WENT OVER A PACER SCHEDULE PLAN WHICH
 HAD BEEN PREPARED BY MANAGEMENT TO INTRODUCE THE CONCEPT OF FLEXITIME.
 (TR. 55;  122).  I.B.1.B. AND C. OF THE PROPOSED PLAN READ AS FOLLOWS:
 
    B.  THE DETERMINATION BASED ON DECISION ANALYSIS TO IMPLEMENT OR
 MODIFY FLEXITIME AT ANY ORGANIZATIONAL LEVEL IS RESERVED TO THE
 EMPLOYER, IN ORDER TO MEET THE PECULIAR OPERATIONAL REQUIREMENTS OF AN
 ORGANIZATION.  IN SUCH CASES, THE UNION WILL BE CONSULTED ON THE
 DECISION TO IMPLEMENT OR MODIFY FLEXITIME.  WHERE FLEXITIME IS CANCELLED
 IN AN ORGANIZATION, MANAGEMENT WILL NOTIFY THE UNION IN ACCORDANCE WITH
 ARTICLE XLI OF THE 1976 LABOR-MANAGEMENT AGREEMENT AND PROVIDE THE UNION
 WITH AN OPPORTUNITY TO NEGOTIATE.
 
    C.  THE EMPLOYER MUST RETAIN THE RIGHT TO MODIFY THE APPLICATION OF
 FLEXITIME TO A PARTICULAR POSITION OR TO ELIMINATE A POSITION OR
 POSITIONS FROM COVERAGE UNDER AN ORGANIZATION'S FLEXITIME PROGRAM IN
 ORDER TO EFFICIENTLY AND EFFECTIVELY MEET THE ORGANIZATION'S OPERATIONAL
 REQUIREMENTS.  SUCH ACTION WILL BE BASED UPON OPERATIONAL REQUIREMENTS
 AND WILL NOT BE ARBITRARY OR CAPRICIOUS.  (JOINT EX. 11).
 
    4.  AN ORAL CLARIFICATION OF SOME OF THE LANGUAGE CONTAINED IN THE
 PLAN WAS PROVIDED BY RESPONDENT.  (TR. 55;  122;  143-144).  THE
 OBLIGATION TO "CONSULT" WAS DEFINED AS GIVING NOTICE TO THE UNION,
 SOLICITING THEIR VIEWS, COMMENTS, AND INPUTS, GIVING THEIR VIEWS,
 COMMENTS, AND INPUTS CONSIDERATION, AND THEN HAVING GIVEN THAT
 CONSIDERATION, MANAGEMENT WAS FREE TO IMPLEMENT THE DECISION, WHICH
 EITHER ACCOMMODATED THE UNION'S VIEWS, OR WHICH DID NOT FOR WHATEVER
 REASONS MANAGEMENT HAD.  "NEGOTIATION", ON THE OTHER HAND, WAS DEFINED
 AS THE EXCHANGE OF PROPOSALS IN THE EFFORT TO REACH AGREEMENT, AND
 FAILING AGREEMENT, WAITING TO IMPLEMENT ANY CHANGES UNTIL SUCH TIME AS
 EITHER THE UNION ELECTED NOT TO GO TO THE IMPASSES PANEL, OR UNTIL THE
 IMPASSES PANEL ISSUED ITS RECOMMENDATIONS.  (TR. 122-123).
 
    5.  I.B.1.C OF THE PROPOSED PLAN GAVE THE UNION THE MOST CONCERN.
 (TR. 55-56;  124;  146).  THE UNION WAS CONCERNED THAT SINCE THE
 EMPLOYER, UNDER THE PROPOSAL, WOULD "RETAIN THE RIGHT TO MODIFY THE
 APPLICATION OF FLEXITIME TO A PARTICULAR POSITION OR TO ELIMINATE A
 POSITION OR POSITIONS FROM COVERAGE," SOME ARBITRARY OR CAPRICIOUS
 MANAGER COULD ONE BY ONE ELIMINATE OR CANCEL FLEXITIME FOR INDIVIDUALS
 WITHIN A GIVEN UNIT OR ORGANIZATION UNTIL IT WAS EFFECTIVELY CANCELLED
 FOR THE ENTIRE ORGANIZATIONAL ELEMENT WITHOUT THE OBLIGATIONS AGREED TO
 IN PARAGRAPH I.B.1.B.  (TR. 58;  124-125;  146-147).  IT WAS AGREED THAT
 PARAGRAPH I.B.1.B WOULD REMAINED UNCHANGED, BUT PARAGRAPH I.B.1.C. WOULD
 BE CHANGED AS FOLLOWS:
 
    C.  WHEN NECESSARY TO MEET OPERATIONAL REQUIREMENTS OF THE
 ORGANIZATION, THE EMPLOYER MAY
 
    EXCLUDE INDIVIDUAL POSITIONS FROM THE OPERATIONS OF THIS PLAN OR
 MODIFY THE APPLICATION OF THE
 
    PLAN TO INDIVIDUAL POSITIONS.  HOWEVER, WHEN ALL OF THE POSITIONS OF
 AN ORGANIZATION SUBUNIT
 
    OR LARGER) ARE AFFECTED, THE EMPLOYER WILL COMPLY WITH PARAGRAPH (B)
 ABOVE.  ACTIONS TAKEN
 
    UNDER THIS PARAGRAPH WILL BE BASED UPON OPERATIONAL REQUIREMENTS AND
 WILL NOT BE ARBITRARY OR
 
    CAPRICIOUS.  (JOINT EX. 4B, 11).
 
    6.  ON AUGUST 19, 1977, THE PARTIES, BY PAUL KETCHERSIDE FOR THE
 UNION AND CHARLES WHITLEY FOR RESPONDENT, EXECUTED A MEMORANDUM OF
 UNDERSTANDING AS FOLLOWS:
 
    THIS MEMORANDUM OF UNDERSTANDING IS EXECUTED BY AFGE LOCAL 916 AND
 THE OKLAHOMA CITY AIR
 
    LOGISTICS CENTER TO INDICATE AGREEMENT ON A FLEXITIME PLAN TITLED
 PACER SCHEDULE, OC-ALC
 
    77-25.
 
    IT IS UNDERSTOOD BY THE PARTIES THAT THOSE PORTIONS OF THE PLAN WHICH
 CONSIST OF PERSONNEL
 
    POLICIES AND PRACTICES AFFECTING WORKING CONDITIONS OF EMPLOYEES IN
 THE BARGAINING UNIT ARE
 
    ENFORCEABLE UNDER THE 1976 LABOR-MANAGEMENT AGREEMENT BETWEEN THE
 PARTIES.  (JOINT EX. 4A).
 
    7.  PARAGRAPH 2 OF THE MEMORANDUM OF UNDERSTANDING WAS INSERTED AT
 THE REQUEST OF THE UNION TO ENSURE THAT DISPUTES UNDER THE FLEXITIME
 PROCEDURE WOULD BE SUBJECT TO THE GRIEVANCE AND ARBITRATION PROVISIONS
 OF THE 1976 AGREEMENT.  (TR. 125-126;  147).  /1/
 
    8.  ON APRIL 13, 1979, RESPONDENT SENT THE UNION A LETTER NOTIFYING
 THE UNION OF THE RESPONDENT'S INTENT TO MODIFY THE FLEXITIME PLAN AT THE
 CENTER-WIDE LEVEL AND PROVIDING THE UNION "AN OPPORTUNITY TO CONSULT ON
 THIS MODIFICATION IF YOU DESIRE." THE PROPOSED MODIFICATION CONSISTED OF
 CHANGING THE CORE HOURS, FLEXIBLE TIME PERIODS, AND FLEXIBLE LUNCH
 PERIOD.  IT WAS NOTED THAT THE UNION COULD PROVIDE COMMENTS AND
 SUGGESTIONS PRIOR TO IMPLEMENTATION, AND THAT THE MODIFICATIONS WOULD BE
 EFFECTIVE APRIL 30, 1979.  (JOINT EX. 5).
 
    9.  DURING THE PERIOD MARCH 19 TO APRIL 13, 1979, RESPONDENT TOOK
 SOME SURVEYS OF EMPLOYEE ATTITUDES ABOUT THE FLEXITIME PROGRAM AND THE
 PROPOSALS.  SOME SUPERVISORS ASKED THEIR EMPLOYEES HOW THEY LIKED
 FLEXITIME, WHETHER IT WAS SUITING THEIR NEEDS, AND WHETHER THEY HAD ANY
 IDEAS ABOUT IMPROVING THE PROGRAM.  (TR. 32-33;  90;  JOINT EX. 10).
 PERSONNEL RESPONDING GENERALLY INDICATED A DESIRE TO HAVE THE FLEXITIME
 PROGRAM REMAIN UNCHANGED AND INDICATED AN EXPECTED ARRIVAL TIME OF 7:30
 A.M. WITH A 30-MINUTE LUNCH PERIOD SHOULD THE PROPOSED MODIFICATIONS BE
 MADE TO THE FLEXITIME PROGRAM.  (JOINT EX. 8).  THE UNION WAS NOT GIVEN
 AN OPPORTUNITY TO BE PRESENT AT THESE MEETINGS.  (TR. 33).
 
    10.  FOLLOWING THE APRIL 13, 1979 LETTER, SOME SUPERVISORS HELD
 MEETINGS WITH THEIR EMPLOYEES, SHOWED THEM COPIES OF THE LETTER, ADVISED
 THEM OF THE PROPOSALS, THAT A CHANGE IN FLEXITIME MIGHT BE MADE, AND
 THAT THE EMPLOYEES MIGHT WANT TO MAKE APPROPRIATE ARRANGEMENTS.  (TR.
 31-32;  62;  90).  THE UNION WAS NOT NOTIFIED OF SUCH MEETINGS.  (TR.
 32).
 
    11.  ON APRIL 20, 1979 AN ARTICLE CONCERNING FLEXITIME APPEARED IN
 THE BASE NEWSPAPER.  THE ARTICLE, INITIATED BY RESPONDENT, PUBLICIZED
 THE FACT THAT RESPONDENT WAS CONSIDERING MODIFYING FLEXITIME AND THAT
 THE UNION HAD BEEN FURNISHED THE APPROPRIATE PAPER WORK CONCERNING THE
 PROPOSED CHANGE.  (TR. 91, 105).
 
    12.  ON APRIL 16, 1979 PAUL KETCHERSIDE, PRESIDENT OF THE UNION, AND
 JOHN R. KELLEY, RESPONDENT'S LABOR RELATIONS OFFICER, MET TO DISCUSS THE
 REASONS FOR THE CHANGE AND WHAT THE RESPONDENT INTENDED IN ITS APRIL 13,
 1979 LETTER CONCERNING "AN OPPORTUNITY TO CONSULT." THE UNION EMPHASIZED
 ITS DESIRE TO NEGOTIATE THE MODIFICATION AT THIS TIME AND IN A LETTER TO
 RESPONDENT DATED APRIL 16, 1979.  (TR. 46-47;  61-62).
 
    13.  ON APRIL 23, 1979 RESPONDENT AND THE UNION MET.  RESPONDENT
 OUTLINED ITS REASONS FOR THE MODIFICATION AND INDICATED IT WAS AT THE
 MEETING TO FULFILL ITS OBLIGATION OF CONSULTATION.  MR. KETCHERSIDE OF
 THE UNION INDICATED IT WAS THERE TO NEGOTIATE, BUT, IN ANY EVENT, HE
 NEEDED SOME INFORMATION IN ORDER TO MAKE PROPER JUDGMENTS.  HE OUTLINED
 AT THE MEETING ELEVEN CATEGORIES OF INFORMATION DESIRED AND REITERATED
 THE REQUEST IN A LETTER DATED THE SAME DAY.  HE REQUESTED THAT
 RESPONDENT POSTPONE MAKING ANY CHANGES FOR AT LEAST 30 DAYS TO ENABLE
 RESPONDENT TO CONSIDER ITS POSITION.  (TR. 92;  JOINT EX. 7).
 
    14.  ON APRIL 23, 1979, RESPONDENT ADVISED THE UNION THAT IT WAS IN
 THE PROCESS OF OBTAINING THE INFORMATION REQUESTED BY THE UNION AND THAT
 THE PROPOSED IMPLEMENTATION DATE WAS RESCHEDULED FOR MAY 13, 1979.  (TR.
 92-93).
 
    15.  ON APRIL 26, 1979 RESPONDENT FURNISHED THE UNION THE INFORMATION
 IT HAD REQUESTED IN EIGHT CATEGORIES, BUT STATED THAT INFORMATION
 CONCERNING THE AMOUNTS OF SCHEDULED AND UNSCHEDULED ANNUAL LEAVE USED
 PRIOR TO AND DURING FLEXITIME AND THE NUMBER OF ABUSES OF FLEXITIME AND
 RELATED DISCIPLINARY ACTIONS WAS NOT REASONABLY AVAILABLE.  (TR. 93;
 JOINT EX.  8).
 
    16.  ON APRIL 30, 1979 THE UNION REITERATED ITS REQUEST FOR THE
 INFORMATION NOT SUPPLIED.  (JOINT EX. 9).
 
    17.  THE PARTIES MET ON MAY 7, 1979.  MR. KELLEY OF RESPONDENT
 EXPLAINED TO MR. KETCHERSIDE OF THE UNION THAT RESPONDENT HAD NO RECORDS
 DISTINGUISHING BETWEEN SCHEDULED AND UNSCHEDULED ANNUAL LEAVE OR LEAVE
 USED PRIOR TO AND DURING FLEXITIME.  HE STATED THAT OBTAINING
 INFORMATION CONCERNING ALLEGED ABUSES OF FLEXITIME AND DISCIPLINARY
 ACTION TAKEN AS A RESULT WOULD REQUIRE A MASSIVE REVIEW OF PERSONNEL
 FILES WITH NO ASSURANCE THAT THE DATA WOULD RELATE SPECIFICALLY TO
 ABUSES OF FLEXITIME.  MR. KETCHERSIDE ACKNOWLEDGED THE PROBLEM IN
 OBTAINING THE INFORMATION, AND STATED THAT HE WAS CONCERNED WHETHER OR
 NOT THE RESPONDENT WAS CHANGING FLEXITIME BECAUSE OF ABUSES BY
 EMPLOYEES.  MR. KELLEY REPLIED THAT IF MR. KETCHERSIDE WAS CHANGING THE
 REQUEST TO ASK FOR THAT INFORMATION, AN ANSWER COULD BE PROVIDED.
 
    18.  ON MAY 9, 1979 RESPONDENT ADVISED THE UNION THAT THE EMPLOYER
 HAD NO STATISTICAL EVIDENCE THAT WOULD INDICATE THAT ABUSE ENCOUNTERED
 UNDER FLEXI-TIME WAS SIGNIFICANTLY DIFFERENT FROM ABUSE PRIOR TO
 FLEXITIME.  (TR. 94-97;  JOINT EX. 10).
 
    19.  DURING DISCUSSIONS BETWEEN RESPONDENT AND THE UNION CONCERNING
 THE PROPOSED MODIFICATION OF FLEXITIME, THE UNION ASSERTED THAT THE
 CHANGES WERE NOT JUSTIFIED BY RESPONDENT'S REASONS;  THAT THEY WOULD
 CAUSE HARDSHIPS ON EMPLOYEES;  AND THAT A JOINT LABOR-MANAGEMENT
 COMMITTEE SHOULD BE ESTABLISHED TO STUDY THE SITUATION AND COME UP WITH
 RECOMMENDATIONS.  NO SPECIFIC COUNTER-PROPOSALS ON THE FLEXITIME PLAN
 WERE OFFERED BY THE UNION.
 
    20.  RESPONDENT CONSIDERED THE UNION'S REQUESTS, REJECTED THEM, AND
 IMPLEMENTED THE MODIFICATION PROPOSALS ON MAY 27, 1979.
 
                    DISCUSSION, CONCLUSIONS, AND ORDER
 
    THE GENERAL COUNSEL ALLEGED THAT RESPONDENT VIOLATED SECTION
 7116(A)(1) AND (5) OF THE STATUTE "ON OR ABOUT APRIL 16, 1979, (WHEN)
 RESPONDENT UNILATERALLY ANNOUNCED A CHANGE IN EXISTING CONDITIONS OF
 EMPLOYMENT CONCERNING FLEXITIME AND, THEREAFTER, ON OR ABOUT MAY 28,
 1979, UNILATERALLY IMPLEMENTED A FLEXITIME PROGRAM WITHOUT FURNISHING
 THE UNION AN OPPORTUNITY TO BARGAIN ON SUCH CHANGES OR ON THE IMPACT AND
 IMPLEMENTATION OF SUCH CHANGES." (GENERAL COUNSEL'S EX. 1(X).)
 
    IN DENYING THAT IT HAS COMMITTED ANY UNFAIR LABOR PRACTICE HEREIN,
 RESPONDENT ASSERTS THAT THE OBLIGATION TO BARGAIN WAS MODIFIED BY A
 MEMORANDUM OF UNDERSTANDING, SIGNED ON AUGUST 19, 1977, BETWEEN
 RESPONDENT AND THE UNION, (GENERAL COUNSEL'S EX. 1(Z).), AND THAT IT
 COMPLIED WITH ITS CONTRACTUAL OBLIGATION.
 
    BOTH PARTIES RELY ON THE NEGOTIATED AGREEMENT, THE MEMORANDUM OF
 UNDERSTANDING, AND THE NEGOTIATIONS LEADING TO THE MEMORANDUM OF
 UNDERSTANDING IN ASSERTING THEIR RESPECTIVE POSITIONS CONCERNING
 RESPONDENT'S OBLIGATION TO BARGAIN.  THEREFORE, THE ISSUES ESSENTIALLY
 INVOLVE ARGUABLE INTERPRETATIONS OF THE NEGOTIATED AGREEMENTS AND ARE
 NOT PROPERLY THE SUBJECT OF UNFAIR LABOR PRACTICE PROCEEDINGS.
 
    IT IS WELL RECOGNIZED THAT A PARTY TO A NEGOTIATED AGREEMENT ACTS AT
 ITS PERIL IN INTERPRETING AND APPLYING SUCH AGREEMENT.  THUS, IF THE
 RESPONDENT'S INTERPRETATION OF THE NEGOTIATED AGREEMENT AND MEMORANDUM
 OF UNDERSTANDING WAS SUCH THAT IT RESULTED IN A CLEAR AND PATENT BREACH
 OF THE TERMS OF THE AGREEMENT, THEN SUCH INTERPRETATION COULD RISE TO
 THE LEVEL OF AN UNFAIR LABOR PRACTICE.  ON THE OTHER HAND, IF
 RESPONDENT'S INTERPRETATION WAS ARGUABLY WITHIN THE TERMS OF THE
 NEGOTIATED AGREEMENT, AND THE MEMORANDUM OF UNDERSTANDING, THEN SUCH
 INTERPRETATION WOULD MERELY BE A MATTER OF CONTRACT INTERPRETATION TO BE
 RESOLVED THROUGH THE PARTIES' GRIEVANCE AND ARBITRATION MACHINERY. CF.
 DEPARTMENT OF THE NAVY, NAVAL AIR REWORK FACILITY, A/SLMR NO. 1089, OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1931 AND DEPARTMENT OF THE NAVY,
 NAVAL WEAPONS STATION, CONCORD, CALIFORNIA, CASE NO. O-NG-55, 2 FLRA
 19(1979).
 
    IT IS ARGUABLE THAT THE RESPONDENT'S APRIL 13, 1979 NOTICE TO THE
 UNION OF ITS INTENT TO MODIFY FLEXITIME AT THE CENTER, ITS SUBSEQUENT
 "CONSULTATION" WITH THE UNION ON ITS PROPOSAL, AND ITS IMPLEMENTATION OF
 THE PROPOSAL, CONSTITUTED REASONABLE INTERPRETATIONS OF THE PARTIES'
 AGREEMENTS.  THEREFORE, I CONCLUDE THAT SUCH ACTIONS, STANDING ALONE,
 DID NOT RISE TO THE LEVEL OF AN UNFAIR LABOR PRACTICE UNDER THE STATUTE
 AND SUCH CONTRACTUAL DISPUTE SHOULD BE RESOLVED THROUGH THE PARTIES'
 GRIEVANCE AND ARBITRATION PROCEDURE.
 
    ASSUMING, HOWEVER, THAT THE CASE IS PROPERLY THE SUBJECT OF UNFAIR
 LABOR PRACTICE PROCEEDINGS ON THE THEORY THAT IT INVOLVES AN ALLEGED
 VIOLATION OF RESPONDENT'S OBLIGATION TO BARGAIN UNDER THE STATUTE AND AN
 ALLEGED WAIVER OF SUCH OBLIGATION, CF. DEPARTMENT OF HEALTH, EDUCATION
 AND WELFARE, SOCIAL SECURITY ADMINISTRATION, BRSI, NORTHEASTERN PROGRAM
 SERVICE CENTER, A/SLMR NO. 1158, 8 A/SLRM 1288, 1293(1978), THE RECORD
 WILL BE CONSIDERED FURTHER ON THAT BASIS.
 
    UNDER THE STATUTE "CONSULTATION" MEANS SOMETHING DIFFERENT FROM
 "BARGAINING" IN TWO AREAS:  NATIONAL CONSULTATION RIGHTS UNDER SECTION
 7113 AND GOVERNMENT-WIDE CONSULTATION RIGHTS UNDER SECTION 7117(D)(1)
 AND (2), AREAS NOT INVOLVED HERE.  HOWEVER, SECTION 7103(A)(12), IN
 DEFINING "COLLECTIVE BARGAINING" USES THE WORDS "CONSULT" AND "BARGAIN"
 INTERCHANGEABLY IN SPEAKING OF THE "MUTUAL OBLIGATION . . . TO MEET AT
 REASONABLE TIMES AND TO CONSULT AND BARGAIN IN A GOOD-FAITH EFFORT TO
 REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF EMPLOYMENT . . . ."
 THUS, IF THE WORD "CONSULT" IS CONTAINED IN AN AGREEMENT, IT MAY BE
 CONSTRUED TO MEAN "BARGAIN" OR "NEGOTIATE" UNLESS "CONSULT" IS OTHERWISE
 DEFINED, OR THERE HAS BEEN A CLEAR AND UNMISTAKABLE WAIVER OF THE RIGHT
 TO BARGAIN, OR UNLESS IT CLEARLY REFERS TO NATIONAL OR GOVERNMENT-WIDE
 CONSULTATION RIGHTS.
 
    SECTION 7135(A)(1) OF THE STATUTE PROVIDES THAT NOTHING CONTAINED IN
 THE CHAPTER SHALL PRECLUDE THE CONTINUATION OF A LAWFUL AGREEMENT
 ENTERED INTO BEFORE THE EFFECTIVE DATE.
 
    PARAGRAPH I.B.1.B. OF THE FLEXITIME PLAN, AGREED TO BY THE PARTIES,
 DIRECTLY AND SPECIFICALLY RESERVES TO RESPONDENT THE "DETERMINATION . .
 . TO . . . MODIFY FLEXITIME AT ANY ORGANIZATIONAL LEVEL . . . IN ORDER
 TO MEET THE PECULIAR OPERATIONAL REQUIREMENTS OF AN ORGANIZATION." WHERE
 FLEXITIME IS MODIFIED, THE PLAN STATES THAT THE UNION WILL BE
 "CONSULTED".  WHERE FLEXITIME IS CANCELLED, THE PLAN STATES THAT THE
 UNION WILL BE PROVIDED AN OPPORTUNITY TO "NEGOTIATE".  THE PLAIN
 LANGUAGE OF THE PLAN AND THE BARGAINING HISTORY LEADING TO THE
 AGREEMENT, AS FOUND ABOVE, DEMONSTRATES THAT THE PARTIES INTENDED A
 CLEAR AND UNMISTAKABLE DISTINCTION BETWEEN THE TWO SITUATIONS AND OF
 THEIR RIGHTS IN CONNECTION WITH EACH.  COMPARE DEPARTMENT OF HEALTH,
 EDUCATION AND WELFARE, SOCIAL SECURITY ADMINISTRATION, BRSI,
 NORTHEASTERN PROGRAM SERVICE CENTER, A/SLMR NO. 1101, 8 A/SLMR 893, 899,
 FLRC 78A-136(1978).  THE GENERAL COUNSEL'S ARGUMENT THAT THE CHANGE
 AMOUNTED TO A CANCELLATION OF FLEXITIME IS REJECTED.  IT IS CONCLUDED,
 THEREFORE, THAT A CLEAR AND UNMISTAKABLE WAIVER BY THE UNION OF ITS
 RIGHT TO NEGOTIATE A MODIFICATION OF FLEXITIME IS EVIDENT FROM THE
 LANGUAGE OF THE AGREEMENT AND THE NEGOTIATIONS LEADING TO THE AGREEMENT.
  CF. FEDERAL AVIATION ADMINISTRATION, A/SLMR 992, 8 A/SLMR 227(1978);
 U.S. ARMY SCHOOL TRAINING CENTER, FORT GORDON, GEORGIA, A/SLMR NO. 148,
 2 A/SLMR 201(1972).  COMPARE UNITED STATES CUSTOMS SERVICE, REGION VI,
 HOUSTON, TEXAS, A/SLMR NO. 1161, 8 A/SLMR 1305(1978);  DEPARTMENT OF THE
 TREASURY, INTERNAL REVENUE SERVICE, CHICAGO DISTRICT OFFICE, A/SLMR NO.
 962, 8 A/SLMR 40(1978);  DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
 SERVICE, SOUTHWEST REGION, DALLAS, TEXAS, A/SLMR NO.  858, 7 A/SLMR
 523(1977);  SOUTHEAST EXCHANGE REGION OF THE ARMY AND AIR FORCE EXCHANGE
 SERVICE, ROSEWOOD WAREHOUSE, COLUMBIA, SOUTH CAROLINA, A/SLMR NO. 656, 6
 A/SLMR 238, AFFIRMED FLRC NO. 76A-85, 5 FLRC 357(1977).
 
    THE RECORD REFLECTS THAT THE RESPONDENT ISSUED A NEWSPAPER RELEASE,
 HELD MEETINGS WITH SOME EMPLOYEES TO ADVISE THEM OF THE PROPOSED
 MODIFICATION, AND CONDUCTED SOME SURVEYS OF EMPLOYEE ATTITUDES ABOUT THE
 FLEXITIME PROGRAM AND RESPONDENT'S PROPOSED MODIFICATION WITHOUT THE
 KNOWLEDGE AND CONSENT OF THE UNION.  (FINDINGS 9-11,SUPRA).  IT HAS
 PREVIOUSLY BEEN HELD THAT SIMILAR EMPLOYEE SURVEYS OF THIS NATURE IS AN
 UNFAIR LABOR PRACTICE SINCE SUCH SURVEYS AMOUNT TO A BY-PASS OF THE
 UNION WHICH UNDERMINES AND IMPAIRS THE STATUS OF THE UNION AS THE
 EXCLUSIVE REPRESENTATIVE OF EMPLOYEES IN THE UNIT.  CF. DEPARTMENT OF
 HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY ADMINISTRATION, BUREAU OF
 RETIREMENT AND SURVIVORS INSURANCE, NORTHEASTERN PROGRAM SERVICE CENTER
 AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL UNION 1760,
 AFL-CIO, 1 FLRA 59(1979).  JOINT EXHIBITS IN THE RECORD REFLECTS THAT
 INFORMATION ABOUT THE ALLEGED SURVEYS WAS MADE AVAILABLE TO THE UNION BY
 RESPONDENT ON APRIL 26 AND MAY 9, 1979.  (JOINT EX. 8, 10).  YET,
 NEITHER THE CHARGE NOR AMENDED COMPLAINT SPECIFICALLY RAISE THIS ISSUE
 OR ALLEGE FACTS SPECIFICALLY RELATING TO THE ISSUE.  AS NOTED, THE
 COMPLAINT CONTAINS A FACTUAL ALLEGATION THAT RESPONDENT REFUSED TO
 BARGAIN IN GOOD FAITH WITH THE UNION IN THAT "ON OR ABOUT APRIL 16,
 1979, RESPONDENT UNILATERALLY ANNOUNCED A CHANGE IN EXISTING CONDITIONS
 OF EMPLOYMENT CONCERNING FLEXITIME AND, THEREAFTER, ON OR ABOUT MAY 28,
 1979, UNILATERALLY IMPLEMENTED A FLEXITIME PROGRAM WITHOUT FURNISHING
 THE UNION AN OPPORTUNITY TO BARGAIN ON SUCH CHANGES OR ON THE IMPACT AND
 IMPLEMENTATION OF SUCH CHANGES." THE GENERAL COUNSEL'S OPENING STATEMENT
 DID NOT REFER TO THE BY-PASS ISSUE.  ALTHOUGH PARTS OF THE EXAMINATION
 AND CROSS-EXAMINATION OF TWO WITNESSES INQUIRED INTO THESE EVENTS, THE
 ORAL MOTION OF THE GENERAL COUNSEL, MADE AT THE CLOSE OF THE HEARING, TO
 AMEND THE COMPLAINT TO CONFORM WITH THE EVIDENCE COVERED ONLY "CHANGES
 AS TO DATES AND (NAMES) . . .  IT WOULD NOT GO TO SUBSTANTIVE ELEMENTS
 OF THE COMPLAINT." (TR. 148-149).  THE ISSUE IS RAISED SQUARELY FOR THE
 FIRST TIME IN THE GENERAL COUNSEL'S POST-HEARING BRIEF.
 
    I CONCLUDE THAT IT WOULD BE INAPPROPRIATE TO DETERMINE THE BY-PASS
 ISSUE SINCE IT IS NOT CLEAR THAT RESPONDENT WAS PROPERLY ON NOTICE OF
 THIS ISSUE AND, AS A RESULT, THAT THE MATTER WAS FULLY LITIGATED AT THE
 HEARING.
 
    IT IS CONCLUDED THAT A PREPONDERANCE OF THE EVIDENCE DOES NOT SUPPORT
 A VIOLATION BY RESPONDENT OF SECTIONS 7116(A)(1) AND (5) OF THE STATUTE,
 AS ALLEGED.
 
    RECOMMENDATION
 
    HAVING FOUND THAT RESPONDENT HAS NOT ENGAGED IN CONDUCT PROHIBITED BY
 SECTIONS 7116(A)(1) AND (5) OF THE STATUTE, IT IS RECOMMENDED THAT THE
 COMPLAINT HEREIN BE DISMISSED IN ITS ENTIRETY.
 
                             GARVIN LEE OLIVER
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JANUARY 18, 1980
 
    WASHINGTON, D.C.
 
    /1/ PAUL KETCHERSIDE, PRESIDENT OF THE UNION, TESTIFIED THAT
 "CONSULT" UNDER I.B.1.B. OF THE PLAN MEANS "NOTIFY", AND THAT IT WAS
 UNDERSTOOD DURING NEGOTIATIONS THAT, UNDER THIS PROVISION, THE UNION
 WOULD BE NOTIFIED OF EVEN MINOR MODIFICATIONS IN FLEXITIME, AT WHICH
 TIME THE UNION COULD MAKE A DETERMINATION OF WHETHER OR NOT TO EXERCISE
 ITS RIGHT TO NEGOTIATE UNDER ARTICLE 41 OF THE 1976 AGREEMENT.  MR.
 KETCHERSIDE TESTIFIED THAT THE PARTIES UNDERSTOOD THAT ARTICLE 3, 19,
 AND 41 OF THE 1976 AGREEMENT WOULD SUPERSEDE ANYTHING TO WHICH THEY
 AGREED, AND THAT UNDER ARTICLE 4, SECTION F(3) OF THE 1976 AGREEMENT HE
 HAD NO AUTHORITY TO BIND THE UNION TO AN ACCORD IN CONFLICT WITH THE
 1976 AGREEMENT. (TR. 58-60).
 
    IN MAKING THE ABOVE FINDINGS, I HAVE REJECTED THIS TESTIMONY.  I HAVE
 CREDITED THE TESTIMONY OF MR. LYNCH, PRINCIPAL SPOKESMAN, AND CHARLES L.
 WHITLEY, CHIEF NEGOTIATOR FOR RESPONDENT.  THE TESTIMONY OF MR. LYNCH
 AND MR. WHITLEY CONCERNING THE NEGOTIATIONS WAS MORE SPECIFIC, THOROUGH,
 CONVINCING, AND CONSISTENT WITH THE PLAIN LANGUAGE OF THE MEMORANDUM,
 THE 1976 AGREEMENT, AND THE RECORD AS A WHOLE.