[ v13 p492 ]
The decision of the Authority follows:
13 FLRA No. 86 DEPARTMENT OF DEFENSE DEPARTMENT OF THE AIR FORCE ARMAMENT DIVISION, AFSC EGLIN AIR FORCE BASE Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1897, AFL-CIO Charging Party Case No. 4-CA-874 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had not engaged in certain unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed. The General Counsel filed exceptions to the Judge's Decision and the Respondent filed an opposition to the General Counsel's exceptions. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), 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 Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommendations. /*/ ORDER IT IS ORDERED that the complaint in Case No. 4-CA-874 be, and it hereby is, dismissed. Issued, Washington, D.C., December 13, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- DEPARTMENT OF DEFENSE DEPARTMENT OF THE AIR FORCE ARMAMENT DIVISION, AFSC EGLIN AIR FORCE BASE, Respondent and AMERICA FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1897, AFL-CIO Charging Party Case No. 4-CA-874 Lt Colonel Gordon B. Finley, Jr., Counsel for Respondent Brenda S. Green, Counsel for the General Counsel Federal Labor Relations Authority Before: ISABELLE R. CAPPELLO Administrative Law Judge DECISION This is a proceeding under Title VII of the Civil Service Reform Act of 1978, 92 Stat. 1191 (1978), 5 U.S.C. 7101 et seq. (Supp. IV, 1980) (hereinafter referred to as the "Statute"), and the rules and regulations issued thereunder and published at 45 Fed. Reg. 3482 et seq., 5 CFR sec.2411 et seq. Pursuant to a charge signed on April 10, 1982 and filed on April 13, by the American Federation of Government Employees, AFL-CIO, Local 1897, AFL-CIO (hereinafter, the "Union"), the General Counsel of the Federal Labor Relations Authority ("Authority") investigated and filed this complaint. The complaint alleges that Respondent has violated Sections 7116(a)(1) and (5) of the Statute. /1/ At issue is the fiscal year 1981 affirmative action plan which was implemented by Respondent on May 14, 1981. The complaint alleges that, on or about January 27, Respondent's labor relations officer submitted the plan to the Union for "final agreement," after incorporating into it certain Union proposals, that the Union signed it on January 28, and that thereafter deletions were made without notice to or collective bargaining with the Union concerning the deletion. Respondent admits that it used the term "final agreement" in connection with the plan submitted to the Union on January 27, 1981, but claims that it had earlier explained to the Union that the plan was "tentative in nature, and had not been submitted to the Command Section." See paragraph 7b of the answer to the complaint. Respondent also claims that, before implementation of the plan, it did give the Union notice of the changes made by Command Section and an opportunity to bargain concerning them. It avers that the Union's conduct, subsequent to April 29, constituted a refusal to bargain in good faith, or a waiver of the Union's right to bargain further, or to invoke impasse procedures provided for in the Statute. A hearing was held on the matter on April 23, 1982, at Eglin Air Force Base, Florida. The parties appeared, adduced evidence, and examined witnesses. Briefs were filed on June 14, by Respondent and June 16, by the General Counsel. The record and the briefs have been fully considered, and based upon them, including my observation of the demeanor of the witnesses, I make the following findings, conclusions and recommended order. Findings of Fact 1. It is admitted that the Department of Defense ("DOD") is an agency, within the meaning of 5 U.S.C. 7103(a); that the Department of the Air Force is a primary national subdivision of DOD, under 5 CFR 2421.5; and that the Armament Division, Eglin Air Force Base ("Eglin") is an activity of the Air Force, under 5 CFR 2421.4. The Armament Division was headed by Major General Robert M. Bond, during the period here relevant. He was the senior installation commander at Eglin. This Division is considered to be the "Command Section," at Eglin (TR 81), /2/ Major General Bond had final authority over the plan at issue. Douglas M. Johnson is Respondent's labor relations officer ("LRO"); and he has authority to commit Respondent, in labor relations matters. John H. Adkinson is Respondent's equal employment opportunity officer ("EEOO"); and he is responsible for the development of affirmative action plans. 2. During all times relevant to this proceeding, the Union has been and is now a labor organization within the meaning of 5 U.S.C. 7103(a)(4), and the exclusive representative of Civil Service employees at Eglin Air Force Base, with certain exceptions not herein relevant. The Union president is Thomas H. Newberry, Sr. He became president in October 1980 and has served as a Union official, in different capacities, since 1973. Maureen Preta serves as women's coordinator and steward for the Union. Her responsibilities include assisting in negotiations on affirmative action plans. 3. On or about January 13, 1981, /3/ a consent judgment was signed by Eglin management in a class action involving equal employment opportunity ("EEO") at Eglin. During the period here at issue, counsel for Respondent concedes that a "charged atmosphere surround(ed) the whole EEO program at Eglin, as a result of the pending or recently . . . . I think in 1981 settled class action" (TR 14). There was also pending, at that time, an unfair labor practice charge, filed by the Union on January 29, 1980, over negotiations for the fiscal year 1980 EEO affirmative action plan at Eglin ("FY80 Plan"). /4/ The Union and community groups were anxious to see what Eglin management would propose for its fiscal year 1981 affirmative action plan ("FY81 Plan"). 4. On January 13, the LRO presented Eglin's proposed FY81 Plan to the Union. The FY81 Plan should have been in effect on October 1, 1980, but was delayed because of late-received instructions. At this point, Eglin was in a rush to complete it, in order to meet a suspense (due) date imposed by headquarters. The presentation was made at a meeting of seven persons which included Mr. Newberry and Ms. Preta. All attendees who were available to testify at the hearing did so. All understood that the Union was to review the Plan submitted to it and come back with "comments" (TR 81). All understood that any Union proposals would have to be reviewed by the senior installation commander, Major General Bond, before final agreement could be declared. This was an "unusual manner" in which to proceed (TR 85). The "normal procedure" is for management to complete all the work on a proposal before presenting it to the Union (TR 86). The Union officials at the January 13 meeting seemed "a little surprised" by the procedure, but made no objections to it (TR 87). 5. In a letter dated January 19, the Union requested certain information and set forth four "negotiating positions" (Jt 2.1-2). The positions were as follows: a. No long range or short range goals should be established unless the long range goals are to be filled in FY81. b. Only goals in accordance with Equal Employment Opportunity Management Directive EEO-MD 702 /5/ dated 11 December 1979 should be established. c. A statement should be included in the plan relating to how any vacancies above the number projected will be filled in relation to Affirmative Action. d. There should be adherence to all instructions contained in Equal Opportunity Management Directive EEO-MD 702 dated 11 December 1979. The Union requested a time and date for "negotiations," as well as the name of the negotiator who would represent the Government (Jt 2.2). 6. In a letter dated January 27, Eglin's LRO replied to the Union's January 19 letter. See Jt 3. Except for one item of requested information, a response was given to each item. The excepted item was one where it appeared that the Union was requesting data which included positions outside the bargaining unit; and the LRO declined to respond to it without a "demonstrated need" (Jt 3.2c). A reply was given to each of the "negotiating requests," as follows: a. As to the matter of long and short range goals, "(w)e have received permission from HQ AFSC (Headquarters, Air Force Systems Command) to eliminate the Long Range and Short Range Goals" (Jt 3.3a). b. "Only goals that are in accordance with EEOC MD 702 have been established" (Jt 3.3b). c. A statement was included in the Plan relating to how vacancies above the projected number would be filled. d. The Plan was in compliance with all instructions in EEOC MD 702. The letter concluded with the statement: Your specific negotiating requests were appreciated. It is evident from the responses provided in paragraph 3 above that your requests precipitated meaningful change to the Plan. In that each of your negotiation requests have been resolved favorably and incorporated in the Plan, coordination with your organization is considered to be complete. It is requested that we meet in the Eglin EEO office on 28 January 1980 /6/ at 1500 to reach final agreement. (Jt 3, paragraph 4, emphasis added because of the importance of these terms to this proceeding.) 7. According to the parties, the meaning of "coordination" is really what this suit is all about. See TR 7. The Union President was not "quite sure" what the term meant (TR 37) and was "not familiar with it," in labor-management negotiations (TR 38). He assumed that it meant that "our coordination was all that was needed to finalize our negotiations" (TR 34), and that his "coordination meant approval of it" (TR 37). 8. The LRO at Eglin explained that the term "coordination" is a "very common term" throughout the Air Force and means that the document has been seen by the party signing on the "coordination lines" of correspondence (TR 106). It can also mean, when a document has been negotiated back and forth, that the Union certifies that it "concurs with the document as stated" (TR 105). 9. On January 28, the meeting between management and labor representatives took place. There were three representatives for each side. All those who were available, at the time of the hearing, testified. a. Quite a bit of discussion about the contents of the FY81 Plan took place between Ms. Preta, and Mr. Adkinson. b. The Union was asked to sign a document entitled "FY81 EEO Plan of Action Coordination." It was signed by Mr. Newberry and by Mr. Erhart, president of another union representing professional employees at Eglin. (Mr. Erhart was out of the country, at the time of the hearing.) Its text stated: The undersigned certify that we have reviewed the FY81 Eglin Air Force Base Affirmative Action Plan and hereby coordinate on the Plan as amended. c. Just before the signing, Mr. Adkinson said that: "We think that we have a good plan now, and all we need to conclude our negotiations is you all's signature on the coordination" (TR 31). d. In view of fact that the LRO had termed the meeting as one "to reach final agreement," had authority to commit management, and would usually interrupt negotiations, if needed, to obtain clearance from higher authority, the Union officials felt that the negotiations were "complete," when the Union president affixed his signature to the document given to him by the LRO (TR 63). The Union officials were not concerned that the LRO did not sign the document, because the LRO had told them that the Plan had to go to the Vice Commander of the Armament Division, "for review" prior to going to the Commander, "for signature" (TR 62 and see also TR 31). The Union officials assumed that the review would be the routine one given to any document before being sent into the Commander for signature. e. Normally, when final agreement is reached between the parties, a document entitled "Memorandum of Agreement" is signed, by the Union and by the LRO, representing management (TR 140). f. Both the LRO and EEOO testified that they expressly told the Union officials of the possibility of further changes being made in the Plan, that would warrant further negotiations, both at the January 13 and January 28 meetings. Neither Union official recalled such a statement being made. I can find no sound basis for discrediting any of these four witnesses. All have some interest in the matter and gave testimony supporting that interest. All seemed honest and forthright in testifying. 10. On February 19, changes were made in the Plan by Major General Bond. Respondent concedes that they were "not of a de minimis nature" (TR 17). The "major difference" was a deletion of the provision that, "(w)here there was severe underrepresentation (i.e., more than 50 percent in the targeted SJC), the goal should be doubled." /7/ Compare GC 3 with GC 4 and see TR 70. According to the Union, the doubling was "in accordance with EEOC guidelines" (TR 67). 11. On March 12, the Union was invited by management to another meeting concerning the Plan. At this meeting, the Union was advised of the changes made on February 19. The meeting was held in the office of the Chief of Civilian Personnel and attended by the Chief, as well as by the LRO and the EEOO. Ms. Preta represented the Union. She told the LRO that she was "very upset" about the changes, and that if he did not have the authority to negotiate and bind management, then she wanted to negotiate with the "appropriate people" (TR 68). She noticed that everyone at the meeting was "extremely nice" and "appeared like maybe they were in a corner and they had been given some instructions and they were trying to work them out by getting us to agree" (TR 69). She agreed to review the changed Plan. It is the position of Respondent that "negotiations" over the FY 81 Plan commenced on March 12, and that the prior labor-management meetings concerning the Plan had been merely "to assist . . . in preparing the coordinated draft to go to the Command Section." See TR 116-115 and 135-136. It is the position of the General Counsel that violations of the Statute occurred at this point, and that subsequent events are not relevant. See GCBr 6, fn. 14. 12. On March 17, the Union president sent the LRO a written response to the changed FY81 Plan. He referred to "continuing negotiations" over it (R 1). He requested a return to what the Union felt had been negotiated and agreed to at the January 28 meeting-- namely, that the FY81 Plan adhere to goals and instructions contained to EEO Management Directive MD 702. 13. On March 25, the LRO sent a written response to the March 17 response of the Union. The LRO stated that the FY81 Plan was in accord "with the letter and intent of EEOC MD 702", which was "advisory" only, for fiscal year 1981 (R 1.2 and .3). The LRO stated that: "We therefore feel that we have met both your requests . . . (and) absen(t) any other specific requests," that the FY81 Plan would be signed on March 30 and sent to HQ AFSC (R 2.4). 14. On March 30, the Union president sent the LRO a letter in which he stated that the revised Plan was not the one which the Union "had considered negotiated," and that implementation of a plan that "does not have AFGE coordination" is a violation of the Statute (R 3.1). "One specific area" mentioned as requiring bargaining was the matter of doubling goals where underrepresentation was severe, "in compliance with EEOC MD 702" (R 3.2 and 3). The letter concluded with a request for "bargaining on this issue" (R 3.4). 15. On April 3, another labor-management meeting was held to discuss the FY81 Plan. a. The Union stated that it would to go back to the Plan that it thought it had "negotiated" (TR 169). Reasons for the changes made by management were discussed. Management explained that the changes were made pursuant to verbal instructions from "Headquarters Air Force" (GC 5.1). See also TR 164. b. Some "(n)ot very kind words (were) said back and forth" (TR 169). They consisted of the following exchange, as testified to by Ms. Preta: Well, Mr. Johnson told Mr. Newberry-- Well, asked Mr. Newberry . . . . How the people in his bargaining unit, down in CE, would like it when they found out that all of the promotions were going to go to minorities or women because of our number of goals, and Mr. Newberry began to get a little flustered about it because he didn't know how to . . . handle this. And, so, I piped up and I said, "Well, now that is intimidation, you know, I don't think we ought to be doing that." Then, Mr. Adkinson, he said that so many people had been asking him about the status of the plan because it was getting so late in the year, and he said that he was going to have to . . . go around and brief all these interest groups, and I know the Minority Committee was interested, and he said he was going to have to go and brief all these groups, and that the Union was holding it up because we refused to negotiate (TR 169-170). c. The Union did make an offer in terms of negotiation. As explained by Ms. Preta: The big hang ups from management was this doubling of goals, because what they did was, in some areas . . . they had goals that were in excess of the projected vacancies; they were better than a hundred percent (100%), and they didn't like that . . . . So I said, "okay, if that's what is your big hang up about the plan, then why don't we, in those instances where it exceeds a hundred percent (100%), because I know you can't fill in excess of a hundred percent (100%) - they why don't we just drop those and make it just a hundred percent (100%) and not worry about the excess." They said that they could not do that people had been asking him about the status of the because-- they couldn't deviate, it either had to be not doubling or it had to be doubling them. . . . (TR 170) d. The meeting ended with each party making a statement that each "was going to their next level . . . to get a reading" (TR 170-171). e. Management suggested that the parties "get back together April 10th to continue" (TR 166). The LRO also asked the Union for a written position on how it interpreted EEOC MD 702. 16. On April 10, a telephone conversation took place between the LRO and the Union president. a. The LRO called the Union president and asked for the Union's written position before a meeting scheduled for that day, so that the LRO could be prepared with a response. b. The Union president responded that he had been advised by the Union's national office to file an unfair labor practice charge for bad-faith bargaining. c. The LRO responded that this left both of them "between a rock and a hard place" (TR 145 and GC 5). The LRO mentioned the fact that the consent judgment had just been signed, and that the "communities downtown were eyeing us daily, and here we were into April without an Affirmative Action plan" (TR 145). The LRO warned the Union president as to the filing of the charge, that a resolution would be "a long time down the road," and in the meantime "we have no plan, and we're both going to have to withstand the pressure that he (the Union president) had more to lose, as he was in a "political position" (TR 166). d. The negotiating session for April 10 was cancelled, by mutual agreement, with a future date for reconvening dependent upon submission by the Union of its written position on how it interpreted EEOC MD 702. 17. On April 24, the LRO wrote to the Union president that the only communication received from him since April 10 was an unfair labor practice charge. The LRO attached certain EEOC documents and represented that they would serve "to clarify the point we have been making regarding the computation of goals for underrepresented groups" (R 5.2). a. The EEOC documents cover 1982 Plans, but they also contain clarifying materials, including one on a "misconception" which had arisen under the prior EEOC MD 702 (the one here at issue) as to the "annual goal setting formula" for underrepresented groups. See R 5 and paragraph C, on page 2, of the attachment dated March 19, 1981. Where there is severe underrepresentation "and the total number of vacancies necessary to set annual goals might equal or exceed 100 percent of available vacancies," EEOC explained that it would then "be necessary not only to prorate vacancies among the underrepresented groups, but also to adjust the vacancies used in the annual goal formula by dividing available vacancies in half." See paragraph 2, on page 3, of the same attachment, emphasis by EEOC. This adjustment was apparently not made when the parties met on January 28 and the Union president signed off on the plan. b. The LRO letter concluded with the statement: The Commander's objective of obtaining a workable and acceptable Affirmative Action Plan remains the same. We continue to solicit your cooperation in this effort which has such a high level of visibility for both parties. Accordingly, it is requested that we meet in my office on 29 April 81 at 0800 to complete these important negotiations in order to meet our joint official responsibilities and the expectations of the workforce in general (R 5.2). 18. On April 29, the Union president replied in writing to the LRO letter of April 24. He informed the LRO that "no further negotiations are considered appropriate," pending resolution of the charge (GC 5). He also informed the LRO that the Union had given management its position in writing, several times, and it was also in the unfair labor practice charge. 19. On May 7, the LRO wrote to the Union president that the Plan would be implemented on May 14. 20. On May 8, the Union president advised the LRO that an unfair labor practice was pending, and that the LRO acted "at (his) peril" in implementing the FY81 Plan (GC 6). 21. On May 14, Respondent implemented the FY81 Plan which was presented to the Union on March 12. 22. The FY81 Plan has now been superceded by one for fiscal year 1982. Discussion and Conclusions Resolution of the issues presented in this case rests upon the definition of "collective bargaining" found in Section 7103(a)(12) of the Statute. It provides that: "(C)ollective bargaining" means the performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency 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 affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession; . . . . Section 7114 further defines the obligation, as follows: (b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation - (1) to approach the negotiations with a sincere resolve to reach a collective bargaining agreement; (2) to be represented at the negotiations by duly authorized representatives prepared to discuss and negotiate on any condition of employment; (3) to meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays; (4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data - (A) which is normally maintained by the agency in the regular course of business; (B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and (C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining; and (5) if agreement is reached, to execute on the request of any party to the negotiation a written document embodying the agreed terms, and to take such steps as are necessary to implement such agreement. (c)(1) An agreement between any agency and an exclusive representative shall be subject to approval by the head of the agency. This Authority has recently had occasion to apply these statutory provisions to a situation where the issue of good faith bargaining arose in the context of tentative agreements being withdrawn by management. In Division of Military and Naval Affairs, State of New York, Albany, New York, 7 FLRA No. 51, at 321 (1981), the Authority adopted the decision of Administrative Law Judge Louis Scalzo, who held that evidence of bad faith bargaining is to be found in the withdrawal of tentative or previous agreements, but that such withdrawal "does not establish per se the absence of good faith." 7 FLRA at 338. Judge Scalzo adopted the reasoning used under Executive Order 11491, which also mandated good faith bargaining, that: "(T)he totality of the evidence in a case must be considered in order to determine whether a party has attempted to evade or frustrate the bargaining responsibility." Having followed this precept, I have reached the same conclusion reached in Division of Military and Naval Affairs, that the totality of the evidence does not indicate that bad faith bargaining occurred. The General Counsel recognizes that his case rests upon first establishing that there was an agreement reached on January 28. See GCBr 9. While statements made and actions taken by the LRO and EEOO could be so construed, and for this reason, may be judged as inept, I am convinced that they were not intended to indicate that a final agreement had been reached. At best, the evidence supports a conclusion that a tentative agreement was reached and was contingent upon approval by the top commander at Eglin. This conclusion is supported by the fact that the usual "Memorandum of Agreement" was not offered to the Union, on January 28, and by the fact that Respondent's LRO did not sign for management, as he would have done, had final agreement been reached. While the procedure followed here were unusual, in that any proposal offered to the Union would normally have been first approved by the top commander, it was adopted under unusual circumstances. The FY81 Plan should have been in place on October 1, 1980, and had a short suspense (due) date imposed by higher authority. Also, Eglin was operating under a charged atmosphere concerning its whole EEO program. It had just signed a consent judgment in a civil suit concerning its program and would have understandably been anxious to receive early input from employee representatives on its next affirmative action plan. Another catalyst for the unusual procedure may have been the unfair labor practice charge filed by the Union over Eglin's plan then in effect. That charge was based on a failure of Respondent to obtain early input from the Union. See the decision issued in Case No. 4-CA-351 on July 20, 1982. In any event, the Union knew the procedure was unusual, and raised no objections to it. While recognizing a measure of ineptness on the part of Respondent, I also find an undue degree of naivety on the part of the Union in this matter. Its president was not inexperienced in the field of labor-management relations. He recognized that the document he was asked to sign, on January 28, bore a strange title, "FY81 Plan of Action Coordination," rather than "Memorandum of Agreement," which usually memorializes final agreements of the parties. He also was too ready to make assumptions as to why no one from management signed the document. Where there is no convincing evidence that an agency intentionally misled a union, mistaken impressions and understandings of a union do not an agency unfair labor practice make. Compare Department of Health, Education and Welfare, Social Security Administration, Western Program Center, San Francisco, California, A/SLMR No. 501, 5 A/SLMR 225, at 230 (1975), a decision of the Assistant Secretary of Labor for Labor-Management Relations under Executive Order 11491, the precursor of the Statute. Withdrawal of even tentative agreements, without good cause, can be evidence of bad-faith bargaining, however. See Decision of Military and Naval Affairs, 7 FLRA at 338. Good cause can be found, on this record, in the general lack of understanding of how to proceed under EEOC directives then in effect as to affirmative action plans. Top management at Eglin felt impelled to reverse its EEOO and refuse to adopt goals for Eglin which even the Union conceded were impossible of achievement, in some areas. About a month after top management at Eglin made this change, EEOC itself issued a clarification of the misconception that had arisen over the goal-setting process. The totality of the evidence in this case convinces me that Respondent did bargain in good faith with the Union. It repeatedly called the Union to the bargaining table to negotiate the changes made in the Plan, on February 19. Explanations for the changes were given. Spirited negotiating sessions ensued, at which Respondent was represented by an officer authorized to commit it. While this officer made some remarks which the Union may regard as intimidating, they were not out of line with the robust give-and-take discussions that can be expected around the bargaining table. See findings 15b and 16c, supra. Respondent was cooperative in furnishing information in response to all reasonable requests. At the last meeting, Respondent's negotiator offered to take the disputed issue to the "next level . . . to get a reading." See finding 15d, supra. This offer demonstrates a bargaining stance of some flexibility, on the part of Respondent, and not one of an "unyielding nature," as the General Counsel argues (GCBr 17). Even after being informed of the unfair labor practice charge, management continued to pursue negotiations, by furnishing documents which it felt supported its positions, and by setting a date and time for another meeting. At this point, the Union expressly declined further negotiations, and called them inappropriate, pending resolution of its charge. Management then gave the Union a 7-day notice of its intent to implement the FY81 Plan. The Union's only response was a warning that management acted at its peril in implementing the Plan. In view of the conclusions discussed above, it is unnecessary to reach other issues raised by the parties. Ultimate Findings and Order The General Counsel has not shown, by a preponderance of the evidence, that Respondent has violated Sections 7116(a)(1) and (5), as alleged. According, it is ORDERED that the complaint in Case No. 4-CA-874 should be, and it hereby is, dismissed. ISABELLE R. CAPPELLO Administrative Law Judge Dated: July 26, 1982 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ The pertinent provisions of Section 7116 are: (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter . . . (or) (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter . . . . /2/ "TR" refers to the transcript. Corrections to the transcript are to be found in Appendix A to this decision. Other abbreviations to be used are as follows. "Jt" refers to the joint exhibits of the parties. "GC" refers to exhibits of the General Counsel, and "GCBr" to his brief; "R" refers to the exhibits of Respondent, and "RBr" to its brief. Multipage exhibits will be referenced by an exhibit number followed by a page or paragraph number. /3/ All dates referenced herein refer to 1981, unless otherwise indicated. /4/ A complaint issued on this charge on February 16, 1982 and is denominated Case No. 4-CA-351. It was heard the day preceding the hearing in this case. The decision by the undersigned issued on July 20, 1982, and recommends dismissal of the charge for failure to prove the allegations of Sections 7116(a)(1) and (5) violations. /5/ This is a reference to a directive put out by the Equal Employment Opportunity Commission ("EEOC"). /6/ The date should be 1981. See TR 90. /7/ "SJC" means "specific job categories" (TR 140).