Food Safety and Quality Service, U.S. Department of Agriculture, Washington, DC (Respondent) and American Federation of Government Employees, Local 2490, AFL-CIO (Charging Party) 

 7 FLRA No. 103
 
 FOOD SAFETY AND QUALITY SERVICE
 U.S. DEPARTMENT OF AGRICULTURE
 WASHINGTON, D.C.
 Respondent
 
 and
 
 LOCAL 2490, AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 5-CA-329
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED RECOMMENDED DECISION
 AND ORDER IN THE ABOVE-ENTITLED PROCEEDING CONCLUDING THAT THE UNFAIR
 LABOR PRACTICE COMPLAINT SHOULD BE DISMISSED IN ITS ENTIRETY.
 EXCEPTIONS TO THE JUDGE'S RECOMMENDED DECISION AND ORDER WERE FILED BY
 THE GENERAL COUNSEL, AND AN OPPOSITION WAS FILED TO THE GENERAL
 COUNSEL'S EXCEPTIONS BY THE RESPONDENT.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
 OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
 COMMITTED. THE RULINGS ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE
 JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD, THE
 AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATION.  /1/
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 5-CA-329 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C. JANUARY 15, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    GLEN L. BROWN, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    ALBERT R. BERRY, ESQUIRE
    FOR THE AGENCY
 
    BEFORE:  ELI NASH, JR.
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C.
 SECTION 7101, ET. SEQ., AND THE FINAL RULES AND REGULATIONS ISSUED
 THEREUNDER, FED. REG. VOL. 45, NO. 12, JANUARY 17, 1980, 5 C.F.R.
 CHAPTER XIV.
 
    PURSUANT TO A CHARGE FILED ON DECEMBER 20, 1979, BY LOCAL 2490,
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (HEREINAFTER CALLED
 THE UNION), A COMPLAINT AND NOTICE OF HEARING WAS ISSUED ON MARCH 7,
 1980.  THE COMPLAINT ALLEGES THAT THE U.S. DEPARTMENT OF AGRICULTURE,
 FOOD SAFETY AND QUALITY SERVICE, WASHINGTON, D.C. (HEREINAFTER CALLED
 THE RESPONDENT) VIOLATED SECTIONS 7116(A)(1) AND (5) OF THE FEDERAL
 LABOR-MANAGEMENT RELATIONS STATUTE BY REFUSING AND CONTINUING TO REFUSE
 TO NEGOTIATE WITH THE UNION BY UNILATERALLY ABROGATING A MEMORANDUM OF
 UNDERSTANDING CONCERNING CONTINUATION OF THE PAST PRACTICE OF STORING
 MEAT GRADING EQUIPMENT IN MEAT GRADERS CARS AND/OR HOMES BY THE
 RESPONDENT'S EMPLOYEES AT ITS CHICAGO, ILLINOIS MAIN STATION.
 
    RESPONDENT'S ANSWER DENIED COMMITTING ANY UNFAIR LABOR PRACTICES.
 
    A HEARING WAS HELD IN THE MATTER ON MAY 13, 1980 IN CHICAGO,
 ILLINOIS.  ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO
 EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE BEARING
 ON THE ISSUES HEREIN.  ALL PARTIES SUBMITTED BRIEFS WHICH HAVE BEEN DULY
 CONSIDERED HEREIN.
 
    UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
 CONCLUSIONS AND RECOMMENDED ORDER:
 
                                   FACTS
 
    THE FACTS IN THIS CASE ARE NOT IN DISPUTE AND ARE SET OUT BELOW.
 RESPONDENT IS RESPONSIBLE FOR THE VARIOUS GRADES OF MEAT GIVEN TO MEAT
 SOLD IN THE UNITED STATES.  THE PROGRAM IS VOLUNTARILY, I.E. UNLIKE
 INSPECTIONS FOR WHOLESOMENESS, WHICH IS MANDATORY AND COVERED UNDER
 OTHER REGULATIONS OF THE DEPARTMENT OF AGRICULTURE, THE COST OF THE
 INSPECTION IS CHARGED TO THE COMMERICAL VENDOR, AND A LARGE PERCENTAGE
 OF THE MEAT SOLD IN THE UNITED STATES IS GRADED.  THE RESPONDENT
 CONDUCTS ITS OPERATIONS NATION-WIDE BY FIELD EMPLOYEES KNOWN AS MEAT
 GRADERS.  THE RESPONDENT IS HEADQUARTERED IN WASHINGTON, D.C., AND HAS
 MAJOR AREA OFFICES THROUGHOUT THE UNITED STATES KNOWN AS MAIN STATIONS.
 
    THE MEAT GRADERS ARE REPRESENTED IN A SINGLE NATIONAL UNIT WITH
 RECOGNITION AT THE BRANCH LEVEL.  THE UNION HAS HELD EXCLUSIVE
 RECOGNITION SINCE 1971 UNDER THE EXECUTIVE ORDER AND UNDER THE CIVIL
 SERVICE REFORM ACT OF 1978.  A NATIONAL BASIC AGREEMENT COVERING ALL
 MEAT GRADERS WAS FIRST NEGOTIATED IN 1971 AND SUCCESSOR AGREEMENTS
 NEGOTIATED THEREAFTER IN 1975, 1977, AND 1980.  THE MEAT GRADERS IN THE
 INSTANT MATTER ARE EMPLOYED AT THE CHICAGO, ILLINOIS MAIN STATION AND
 ARE REPRESENTED BY LOCAL 2490.  UNION LOCALS REPRESENTING MEAT GRADERS
 ARE AFFILIATED WITH THE NATIONAL MEAT GRADERS COUNCIL, BUT THE COUNCIL
 DOES NOT HOLD A GRANT OF RECOGNITION.
 
    THE RECORD INDICATES THAT THE EQUIPMENT USED BY MEAT GRADERS TO GRADE
 AND MARK MEAT WAS TRADITIONALLY STORED IN THE CAR TRUNK OR HOME OF THE
 INDIVIDUAL MEAT GRADER.  THIS EQUIPMENT INCLUDING STAMPS AND SCALES IS
 RATHER CUMBERSOME WEIGHING IN EXCESS OF 60 POUNDS.  THE MEAT GRADERS
 ACCRUE SUBSTANTIAL OVERTIME EACH DAY BECAUSE GRADERS AS FEDERAL
 EMPLOYEES WORK EIGHT HOURS PER DAY AND THE ADDITION OF COMMUTING TIME AS
 "WORK" HOURS CAUSES EACH GRADER TO HAVE MORE THAN EIGHT HOURS OF
 COMPENSABLE TIME EACH DAY.  THEY OBTAINED THIS OVERTIME THROUGH A RULING
 OF THE COMPTROLLER GENERAL IN 1976 THAT THE GRADERS WERE SUBJECT TO FAIR
 LABOR STANDARDS ACT AND THAT THEIR DRIVING TO AND FROM WORK WITH THE
 EQUIPMENT IN THEIR TRUNKS CONSTITUTED HOURS OF WORK UNDER THAT ACT.
 
    IN 1977 RESPONDENT INSTITUTED A CHANGE IN THE EQUIPMENT STORAGE
 POLICY.  THE RECORD REVEALS THAT THE RESPONDENT DETERMINED THAT IN MANY
 LOCATIONS AROUND THE COUNTRY IT WOULD BE COST-EFFECTIVE TO STORE GRADING
 EQUIPMENT IN EITHER AGENCY OFFICES, RENTED FACILITIES, OR SECURED
 LOCKERS IN THE PLANTS OF COMMERICAL VENDORS, BECAUSE THE EXPENSES
 ASSOCIATED WITH CENTRAL STORAGE WOULD BE LESS THAN THE OVERTIME
 ASSOCIATED WITH CAR STORAGE. HOWEVER, THERE WERE CASES IN WHICH CAR
 STORAGE WOULD BE CHEAPER.  THE RESPONDENT MADE A DECISION TO CHANGE THE
 STORAGE POLICY FROM CAR STORAGE TO WHICHEVER FORM OF STORAGE WAS MOST
 COST-EFFECTIVE AT THE LOCATION.  THIS POLICY WAS CALLED THE "CENTRAL
 STORAGE" POLICY BECAUSE CENTRAL STORAGE WAS USUALLY CHEAPEST.
 
    IN MAY 1977, RESPONDENT PUBLISHED A PROPOSED RULE IN THE FEDERAL
 REGISTER REGARDING A "CHANGE IN THE REGULATIONS PROVIDING MEAT GRADING
 AND/OR ACCEPTANCE SERVICE TO SHOW THAT APPLICANTS MAY BE REQUIRED TO
 PROVIDE METAL CABINETS OR LOCKERS FOR THE SECURE STORAGE OF OFFICIAL
 MEAT GRADING EQUIPMENT FOR FEDERAL MEAT GRADERS ASSIGNED TO THEIR
 PLANT."
 
    SHORTLY THEREAFTER, ON MAY 27, 1977, AFGE NATIONAL PRESIDENT KENNETH
 T. BLAYLOCK OBJECTED TO CHANGING THE SYSTEM WHICH PROVIDED THAT THE MEAT
 GRADING EQUIPMENT MUST NEVER BE LEFT IN AN APPLICANT'S ESTABLISHMENT
 OVERNIGHT.  WHILE THE LETTER ADDRESSED THE POLICY CHANGE AS A QUESTION
 OF SECURITY OF AGENCY EQUIPMENT AND INDICATED THAT IT BELIEVED THAT
 SECURED LOCKERS IN VENDOR'S PLANTS WERE NOT ADEQUATELY SECURED, IT DID
 NOT CONCEDE THE POLICY CHANGE WAS NOT A MANAGEMENT RIGHT AND DID NOT
 REQUEST NEGOTIATIONS ON THE PROPOSAL OR ITS IMPACT BUT MERELY REQUESTED
 A COPY OF THE FINAL REGULATION.  THE FINAL REGULATION IMPLEMENTING
 CENTRAL STORAGE WAS PROMULGATED JULY 11, 1977 TO BE EFFECTIVE JULY 15,
 1977.
 
    THE RECORD ESTABLISHED THAT FOLLOWING THE IMPLEMENTATION OF THE
 REGULATION, THE CHICAGO, ILLINOIS MAIN STATION CONTINUED TO USED GRADERS
 CARS FOR STORAGE OF GRADING EQUIPMENT BECAUSE THE INFORMATION PROVIDED
 TO RESPONDENT BY THE CHICAGO MAIN STATION SUPERVISOR, MR.  JOHN E.
 COPLIN SHOWED THAT THIS FORM OF STORAGE WAS CHEAPEST.  THE MAIN STATION
 SUPERVISOR IN CHICAGO IS RESPONSIBLE FOR BOTH TECHNICAL AND
 ADMINISTRATIVE DUTIES IN A FIVE STATE AREA.  THE MAIN STATION SUPERVISOR
 HAS DEALT WITH THE LOCAL UNION ON SUCH THINGS AS GRIEVANCES AND
 OVERTIME.
 
    ON JULY 30, 1979, H. C. KENNETH, JR., ACTING DIRECTOR MEAT QUALITY
 DIVISION SENT A MEMORANDUM TO MAIN STATION SUPERVISOR COPLIN INDICATING
 THAT ALL MAIN STATIONS EXCEPT CHICAGO HAD IMPLEMENTED THE EQUIPMENT
 STORAGE TO MINIMIZE PAYMENT FOR GREATER TRAVEL UNDER FLSA.  MR. KENNETT
 REQUESTED DATA FROM THE CHICAGO MAIN STATION RECORDS TO HELP HIM
 DETERMINE WHETHER THE PRESENT POLICY IN THAT STATION WAS THE MOST
 COST-EFFECTIVE ALTERNATIVE.  HE ASKED THAT A COST COMPARISON BE
 DEVELOPED FOR A SIX-MONTH PERIOD BETWEEN JANUARY 1979 AND JUNE 1979
 INCLUDING DATA ON AMOUNT OF TRAVEL TIME PAY TO EACH GRADER, AMOUNT OF
 TRAVEL PAY EACH GRADER WOULD HAVE RECEIVED IF EQUIPMENT WOULD HAVE BEEN
 STORED AT A CENTRAL LOCATION, AND MILEAGE CLAIMS GRADERS WOULD BE
 ENTITLED TO AS A RESULT OF ANY PORTAL-TO-PORTAL SITUATIONS CREATED BY
 STORAGE AT A CENTRAL LOCATION.  HE ALSO REQUESTED COST ESTIMATES FOR
 ARRANGING STORAGE FACILITIES, INCLUDING COST OF LOCKERS.
 
    MAIN STATION SUPERVISOR COPLIN RESPONDED TO MR. KENNETT'S REQUEST
 WITH A MEMORANDUM DATED SEPTEMBER 9, 1979, IN WHICH HE RATHER VIGOROUSLY
 DEFENDED THE RIGHT OF THE CHICAGO MEAT GRADERS TO CONTINUE STORAGE OF
 EQUIPMENT IN THEIR HOMES AND AUTOMOBILES.  MR.  COPLIN CONCLUDED THAT
 THE FAIR THING "FOR ALL CONCERNED WOULD BE TO LIMIT THE AMOUNT OF TRAVEL
 TIME PAY PERMITTED TO 1 1/2 HOURS PER DAY, REGARDLESS OF HOW FAR AWAY A
 GRADER DECIDES TO LIVE FROM THE MAIN STATION OFFICE."
 
    MR. KENNETT RESPONDED TO THE MEMORANDUM FROM COPLIN ON OCTOBER 9,
 1979, STATING:
 
    THESE COMPARISONS EMPHASIZED THE NEED FOR A MORE COST-EFFECTIVE
 PROGRAM DIRECTLY TO
 
    TRANSPORTATION AND/OR STORAGE OF MEAT GRADING EQUIPMENT IN THE
 CHICAGO STATION. THEREFORE YOU
 
    MUST TAKE IMMEDIATE STEPS TO STORE GRADING EQUIPMENT IN APPROPRIATE
 LOCATIONS.  STORAGE
 
    LOCATIONS SELECTED SHALL (1) MINIMIZED THE OCCURRENCE OF SITUATIONS
 WHERE GRADERS ARE REQUIRED
 
    TO TRANSPORT EQUIPMENT PORTAL-TO-PORTAL (2) MINIMIZE THE UNNECESSARY
 TRAVEL NOTED IN YOUR
 
    MEMO, (3) MINIMIZE INCONVENIENCES TO GRADERS SUCH AS THOSE NOTED IN
 YOUR MEMO.
 
    BY MEMORANDUM DATED NOVEMBER 8, 1979, MR. COPLIN INDICATED TO MR.
 KENNETT THAT SINCE THE MEMORANDUM OF OCTOBER 9, INVOLVED CHANGES IN THE
 LOCAL MEAT GRADERS WORKING CONDITIONS AND A CHANGE IN WORKING CONDITIONS
 NEGOTIABLE UNDER THE LAW, THAT LOCAL 2490 AND CHICAGO MANAGEMENT HAS
 CONSIDERED THE PROPOSED CHANGE AND AS A RESULT OF THIS CONSIDERATION HAD
 AGREED TO CONTINUE THE PAST PRACTICE OF STORING THE MEAT GRADING
 EQUIPMENT IN THE MEAT GRADER'S CARS AND HOMES.  THE MEMORANDUM INCLUDED
 A COPY OF THE AGREEMENT ARRIVED AT BETWEEN COPLIN AND FRANK G. KRZAN,
 PRESIDENT LOCAL 2490, WHICH READ, IN PART:
 
    AS A RESULT OF NEGOTIATIONS BETWEEN CHICAGO LOCAL 2490, AFGE AND THE
 CHICAGO MEAT GRADING
 
    MANAGEMENT, ON THE CHANGE IN WORKING CONDITIONS AS PROPOSED BY THE
 WASHINGTON MEAT GRADING
 
    HEADQUARTERS, REGARDING THE STORAGE OF GRADING EQUIPMENT, WE HEREBY
 AGREE TO CONTINUE THE PAST
 
    PRACTICE OF STORING GRADING EQUIPMENT IN THE GRADER'S CARS AND/OR
 HOMES.
 
    ON NOVEMBER 29, 1979, MR. KENNETT RESPONDED TO THE COPLIN MEMORANDUM
 STATING THAT THE BASIC AGREEMENT BETWEEN RESPONDENT AND THE UNION DID
 NOT PROVIDE FOR THE NEGOTIATION OF AGREEMENT SUCH AS THE OCTOBER 16,
 1979 AGREEMENT BETWEEN THE CHICAGO MAIN STATION AND THE LOCAL UNION. HE
 STATED FURTHER THAT RESPONDENT DID NOT CONSIDER THE DECISION OR
 DETERMINATION ON WHETHER TO STORE EQUIPMENT TO BE AN NEGOTIABLE ISSUE.
 HE ADDED THAT THE DECISION REGARDING EQUIPMENT STORAGE IS NOT NEGOTIABLE
 BUT, THAT IT IS APPROPRIATE TO DISCUSS WITH UNION OFFICIALS PROCEDURES
 TO BE USED IN IMPLEMENTING EQUIPMENT STORAGE.  FINALLY, MR. KENNETT
 STATED THAT HE EXPECTED COMPLIANCE WITH THE OCTOBER 9 MEMORANDUM TO
 IMPLEMENT THE STORAGE OF MEAT GRADING EQUIPMENT IN THE CHICAGO MAIN
 STATION BY JANUARY 1, 1980.
 
    ABOUT MAY 7, 1980, MR. KRZAN RECEIVED A LETTER FROM JOHN M. NOVAK,
 PRESIDENT OF THE NATIONAL MEAT GRADING COUNCIL INDICATING THAT THE
 OCTOBER 16, 1979, AGREEMENT OUTLINING THAT A PAST PRACTICE WAS TO BE
 CONTINUED WAS NOT IN CONFLICT WITH THE BASIC AGREEMENT AND WAS VALID
 UNDER SECTION 3.4 OF THAT AGREEMENT.  /2/ MR. NOVAK STATED FURTHER THAT
 THE AGREEMENT WAS NOT IN CONFLICT WITH SECTION 1.10 OF THE AGREEMENT.
 THE LETTER ALSO NOTED THAT MR. KRZAN SHOULD CHECK SECTION 1.5. /3/
 SECTION 1.10 CONCERNING THE STATUS OF THE AGREEMENT ALSO INDICATES THAT
 THE AGREEMENT SHALL BE THE "SOLE AGREEMENT BETWEEN THE PARTIES. IT SHALL
 REPLACE ALL WRITTEN AGREEMENTS BETWEEN MAIN STATION SUPERVISORS AND
 AFFILIATED LOCALS."
 
    THE TESTIMONY OF BOTH MR. KRZAN AND MR. COPLIN IS THAT AT THE TIME
 THEY EXECUTED THE MEMORANDUM OF OCTOBER 16, 1979, EACH BELIEVED THAT
 BECAUSE OF THEIR RESPECTIVE POSITIONS OF AUTHORITY AT THE TIME THE
 AGREEMENT WAS SIGNED THEY COULD NEGOTIATE.  KRZAN FELT THAT ARTICLE 3.4
 OF THE MASTER AGREEMENT ALLOWED NEGOTIATIONS ON THE 23 COMPENSATION.
 MR. COPLIN HOWEVER, TESTIFIED THAT HE HAD NEVER ENTERED INTO A WRITTEN
 AGREEMENT WITH THE UNION CONCERNING ANY CONDITIONS OF EMPLOYMENT PRIOR
 TO THIS MEMORANDUM BUT, THAT HE HAD RESOLVED GRIEVANCES ORALLY WITH THE
 LOCAL UNION ON MANY OCCASIONS.  MR. KRZAN TESTIFIED THAT HE HAD THE
 IMPRESSION THAT COPLIN HAD AUTHORITY TO NEGOTIATE BECAUSE OF "WHAT WE
 READ IN THE BASIC AGREEMENT." ALTHOUGH COPLIN TESTIFIED THAT WHILE HE
 USUALLY WORKED OUT "GENTLEMEN'S AGREEMENT" WITH THE UNION, HE FELT THAT
 IN THIS SITUATION HE WAS BEING FORCED INTO ORDERING LOCKERS AND SO
 FORTH, AND, IN (HIS) JUDGMENT THAT WAS A VIOLATION WITHOUT GOING TO THE
 UNION AND FULLY DISCUSSING IT WITH UNION OFFICIALS.  ON CROSS
 EXAMINATION COPLIN TESTIFIED THAT HE "SAW HIS AUTHORITY AS COMING FROM
 THE CONTRACT."
 
    MR. DAVID HALLET, CHIEF, MEAT GRADING BRANCH WAS A MEMBER OF THE
 MANAGEMENT NEGOTIATION TEAM FOR THE NATIONAL BASIC AGREEMENT IN 1971,
 1975 AND 1977, RESPECTIVELY.  MR. HALLET TESTIFIED THAT SECTION 1.9 OF
 THE 1971 BASIC AGREEMENT, THE PREDECESSOR TO SECTION 1.10 OF THE 1977
 AGREEMENT WAS NEGOTIATED TO SPECIFICALLY PROHIBIT SUBORDINATE AGREEMENTS
 AND TO ABOLISH EXISTING LOCAL AGREEMENTS WITH A SINGLE NATIONAL BASIC
 AGREEMENT.  HE STATED FURTHER THAT THE IDENTICAL WORDED SECTION 1.9 OF
 THE 1975 BASIC AGREEMENT, SECTION 1.10 OF THE 1977 BASIC AGREEMENT AND
 SECTION 1.10 OF THE 1980 BASIC AGREEMENT WERE ALL NEGOTIATED FOR THE
 SAME PURPOSE.
 
    WITH REGARD TO SECTION 3.4 OF ALL FOUR AGREEMENTS, MR. HALLET
 TESTIFIED THAT IT WAS NEGOTIATED TO DEFINE FOR THE PARTIES THE
 DIFFERENCE BETWEEN CONSULTATION AND NEGOTIATION AND WAS NOT INTENDED TO
 ALLOW SUBORDINATE AGREEMENTS BELOW THE LEVEL OF RECOGNITION.  MR.
 RICHARD GAMBLE, NOW A MANAGEMENT OFFICIAL, BUT FORMALLY THE FIRST
 NATIONAL VICE PRESIDENT OF THE MEAT GRADING COUNCIL AND A MEMBER OF THE
 UNION 1971 NEGOTIATION TEAM CORROBORATED MR. HALLET'S BASIC TESTIMONY.
 MR. GAMBLE STATED THAT SECTION 1.9 OF THE 1971 BASIC AGREEMENT, WHICH HE
 HELPED TO NEGOTIATE, WAS INTENDED TO PRECLUDE LOWER LEVEL SUPERVISORS
 AND UNION OFFICERS FROM ENTERING INTO COLLECTIVE BARGAINING AGREEMENTS
 AT THEIR OWN LEVEL OF ORGANIZATION.  CONCERNING SECTION 3.4 OF THE 1971
 BASIC AGREEMENT, ACCORDING TO MR. GAMBLE, IT WAS INTENDED ONLY TO
 IDENTIFY THOSE AREAS THAT WERE APPROPRIATE FOR NEGOTIATION AT THE
 NATIONAL LEVEL AND WAS NOT INTENDED TO ALLOW LOWER LEVEL SUPERVISORS AND
 UNION OFFICERS TO ENTER INTO COLLECTIVE BARGAINING AGREEMENTS AT THEIR
 OWN LEVEL OF RECOGNITION.
 
                        DISCUSSION AND CONCLUSIONS
 
    THE BASIC ISSUE RAISED IN THIS MATTER IS ONE OF CONTRACT
 INTERPRETATION.  THE GENERAL COUNSEL CONTENDS THAT RESPONDENT ABROGATED
 AN AGREEMENT ARRIVED AT BETWEEN THE STATION SUPERVISOR AND APPARENTLY
 ASSUMED THAT THIS SUPERVISOR HAD AUTHORITY TO ENTER INTO SUCH AN
 AGREEMENT, ABSENT BEING TOLD THAT HE DID NOT HAVE SUCH AUTHORITY.
 
    RESPONDENT MOVED FOR DISMISSAL OF THE COMPLAINT AS INVOLVING ONE OF
 THE CONTRACT INTERPRETATION BETTER RESOLVED BY MEANS PROVIDED FOR IN THE
 AGREEMENT BETWEEN THE PARTIES. RESPONDENT HAS URGED FROM THE OUTSET THAT
 THE MAIN STATION SUPERVISOR DID NOT HAVE AUTHORITY UNDER THE BASIC
 AGREEMENT TO NEGOTIATE SUCH MATTERS AS WERE CONTAINED IN THE OCTOBER 16,
 1979 MEMORANDUM OF UNDERSTANDING.
 
    FIRST OF ALL, IT IS CLEAR THAT QUESTIONS INVOLVING CONTRACT
 INTERPRETATIONS IN THE FEDERAL SECTOR GENERALLY HAVE BEEN LEFT TO THE
 MEANS ESTABLISHED IN AGREEMENTS BY THE PARTIES, EXCEPT WHERE PERSISTENT
 BREACHES OF A CONTRACT HAVE BEEN FOUND TO BE SO SERIOUS AS TO CONSTITUTE
 A UNILATERAL CHANGE IN THE CONTRACT TERMS.  IN THOSE CASES, WHERE AN
 UNFAIR LABOR PRACTICE HAS BEEN ALLEGED, IT HAS GENERALLY BEEN HELD THAT
 THE BREACH MUST BE SO PATENT THAT THE PARTY BREACHING THE AGREEMENT
 WOULD NOT HAVE REASONABLY THOUGHT OTHERWISE.  THE AUTHORITY HAS HELD
 THAT ABSENT A PATENT BREACH OR LACK OF GOOD FAITH ON A RESPONDENT'S
 PART, THE PROPER FORUM TO RESOLVE DISPUTES OVER THE MEANING OF
 PROVISIONS CONTAINED IN A MASTER AGREEMENT WOULD BE THAT WHICH THE
 PARTIES THEMSELVES ADOPTED FOR SUCH A PROPOSE.  AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1661 AND DEPARTMENT OF JUSTICE,
 BUREAU OF PRISONS, FEDERAL CORRECTIONAL INSTITUTION, DANVILLE,
 CONNECTICUT, 2 FLRA NO. 56(1980);  AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1917 AND UNITED STATES DEPARTMENT OF JUSTICE,
 IMMIGRATION AND NATURALIZATION SERVICE, 4 FLRA NO. 29(1980).
 
    CLEARLY THE PARTIES WERE CONFUSED AT THE LOCAL LEVEL AT WHAT TO DO
 CONCERNING THE CHANGE IN PORTAL-TO-PORTAL CARRIAGE AND NOT HAVING
 PREVIOUSLY BARGAINED CONCERNING ISSUES OF SUCH MAGNITUDE WENT TO THE
 AGREEMENT FOR GUIDANCE.  LOCAL UNION PRESIDENT KRZAN TESTIFIED THAT HE
 RELIED ON ARTICLE 3.4 OF THE AGREEMENT WHEN HE APPROACHED THE STATION
 SUPERVISOR CONCERNING THE MATTER.  SIMILARLY, THE STATION SUPERVISOR
 SAID HE RELIED ON "WHAT WE READ IN THE AGREEMENT." RESPONDENT'S PRIMARY
 CONCERN IN ITS NOVEMBER 19, 1979 MEMORANDUM TO SUPERVISOR COPLIN WAS
 THAT THE BASIC AGREEMENT DID NOT PERMIT SUCH NEGOTIATIONS AND NOT THAT
 HIS POSITION DID NOT VEST HIM WITH AUTHORITY.
 
    WITHOUT COMMENTING ON THE PROPRIETY OF THE STATION SUPERVISOR'S
 ACTION IN THIS MATTER, IT IS CLEAR THAT REASONABLE PERSONS COULD
 DISAGREE ON WHETHER OR NOT THE TERMS OF THE AGREEMENT ALLOWED
 NEGOTIATIONS AT THE LOCAL LEVEL.  HERE, BUT, THE LANGUAGE OF THE
 AGREEMENT IS INDEED SUSCEPTIBLE TO AN INTERPRETATION WHICH MIGHT, OR
 MIGHT NOT AUTHORIZE THE STATION SUPERVISOR TO BARGAIN CONCERNING LOCAL
 ISSUES WITH LOCAL UNION OFFICIALS.
 
    THIS BEING THE CASE, IT CANNOT BE SAID THAT RESPONDENT'S ACTION IN
 DENYING THAT THE STATION MANAGER HAD AUTHORITY TO NEGOTIATE A LOCAL
 AGREEMENT UNDER THE BASIC AGREEMENT BETWEEN THE PARTIES, CONSTITUTED A
 PATENT BREACH WHICH WOULD CONSTITUTE A UNILATERAL CHANGE IN THE TERMS OF
 THE AGREEMENT.  NOR HAS IT BEEN ESTABLISHED ON THIS RECORD THAT
 RESPONDENT'S INTERPRETATION OF THE BASIC AGREEMENT OR THE CLAUSES IN
 QUESTION, WHICH IT FELT PRECLUDED THE LOCAL STATION MANAGER FROM
 ENTERING INTO AN AGREEMENT WITH THE LOCAL UNION WAS NOT IN GOOD FAITH.
 
    ACCORDINGLY, I SHALL RECOMMEND THAT THE AUTHORITY ADOPT THE FOLLOWING
 ORDER.  /4/
 
                                   ORDER
 
    IT IS HEREBY ORDERED, THAT THE COMPLAINT IN CASE NO. 5-CA-329 BE, AND
 HEREBY IS, DISMISSED.
 
                              ELI NASH, JR.
                              ADMINISTRATIVE LAW JUDGE
 
    DATED:  OCTOBER 24, 1980
    WASHINGTON, D.C.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/SEE FEDERAL AVIATION ADMINISTRATION, ALASKAN REGIONAL OFFICE, 7
 FLRA NO. 23(1981) AT P. 6 OF THE DECISION.
 
    /2/ SECTION 3.4, READS AS FOLLOWS:
 
    NEGOTIATIONS WILL BE CONDUCTED ON THOSE PERSONNEL POLICIES AND
 PRACTICES AND OTHER MATTERS
 
    AFFECTING WORKING CONDITIONS, WHICH ARE APPROPRIATE FOR NEGOTIATION,
 CAN BE IDENTIFIED AS
 
    APPLYING SPECIFICALLY TO THE MEMBERS OF THE REPRESENTATION UNIT, AND
 ARE WITHIN THE
 
    ADMINISTRATIVE DISCRETION OF THE CHIEF, MEAT GRADING BRANCH.
 
    WHEN THE PARTIES AGREE, THE METHOD DESCRIBED IN 3.3 ABOVE FOR
 CONSULTATIONS MAY BE UTILIZED
 
    TO DEAL WITH MATTERS WHICH MEET THE REQUIREMENTS OF THIS SECTION.
 HOWEVER, IF THIS APPROACH
 
    IS UTILIZED, NO CHANGES IN POLICY OR PROCEDURE WILL BE PUT INTO
 AFFECT, EXCEPT BY MUTUAL
 
    CONSENT OF THE PARTIES.
 
    THE FACT THAT CERTAIN CONDITIONS ARE REDUCED TO WRITING DOES NOT
 ALLEVIATE THE
 
    RESPONSIBILITY OF EITHER PARTY TO MEET WITH THE OTHER TO DISCUSS AND
 CONSULT ON MATTERS NOT
 
    ORIGINALLY COVERED BY THIS AGREEMENT.  ANY EXISTING BENEFITS,
 PRACTICES, OR UNDERSTANDINGS AT
 
    THE LOCAL LEVEL WHICH ARE NOT IN CONFLICT WITH THIS AGREEMENT AND ARE
 MUTUALLY ACCEPTABLE TO
 
    BOTH PARTIES MAY REMAIN IN EFFECT.
 
    /3/ SECTION 1.5 (RESOLUTION OF DIFFERENCES) THE PARTIES AGREE THAT
 THEY WILL CONSIDER PROBLEMS ARISING BETWEEN THEM AT THE LOWEST
 ORGANIZATIONAL LEVEL WHICH HAS AUTHORITY TO RESOLVE THE PROBLEMS.  THIS
 SHALL INCLUDE AFFORDS BY THE MAIN STATION SUPERVISORS AND THE RESPECTIVE
 PRESIDENTS OF THE LOCAL UNIONS TO RESOLVE THEIR DIFFERENCES AT THAT
 LEVEL.
 
    /4/ BASED ON THE FOREGOING, IT IS UNNECESSARY TO CONSIDER OTHER
 ISSUES RAISED BY THE PARTIES.