[ v18 p642 ]
The decision of the Authority follows:
18 FLRA No. 77 DEPARTMENT OF THE AIR FORCE HEADQUARTERS 93rd COMBAT SUPPORT GROUP (SAC) CASTLE AIR FORCE BASE, CALIFORNIA Respondent and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-91 Charging Party Case No. 9-CA-967 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had engaged in certain unfair labor practices and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. The Judge further found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal of the complaint with respect to them. Exceptions to the Judge's Decision were filed by the Respondent, and the General Counsel filed cross-exceptions to the Judge's Decision and an opposition to the Respondent'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, only to the extent specifically referred to herein. The Authority adopts the Judge's conclusion that the Respondent did not, in the specific circumstances of this case, violate section 7116(a)(1) and (5) of the Statute, as alleged in the complaint, by terminating a past practice without first negotiating at the request of the Charging Party (the Union) concerning its decision. Thus, the Authority agrees with the Judge's finding that, by virtue of the parties' negotiated agreement, the Union waived any right it may have had to bargain concerning the Respondent's decision to terminate the parties' past practice of permitting children of employees of the Respondent's Child Care Center to attend the Center without charge. However, contrary to the Judge, the Authority finds that the Respondent did not violate the Statute by failing to bargain with the Union concerning the impact and/or implementation of that decision. Thus, following notice from the Respondent that it intended to terminate the practice of providing free child care for the children of Child Care Center employees at the start of the new year, i.e., in about three weeks, the Union met with the Respondent. The Respondent explained that its decision was based upon the opinion of its Staff Judge Advocate that the existing practice violated Air Force Regulations. The Union persistently argued the inequities of the decision and requested that the present practice be maintained, but the Respondent remained firm in its decision. The Union asked that it be given a "firm date" as to the implementation, a "clean copy" of the Staff Judge Advocate's memo on the subject, and an opportunity to discuss the matter with the Base Commander. The Respondent agreed to the first two of these requests, but was silent as to the third. The Respondent subsequently implemented the change with regard to withdrawal of free child care on the date planned, consistent with its notice to the Union. The Union met with the Base Commander thereafter; the Respondent's decision to change the practice was further discussed but remained in place. The Union did not, during these meetings, request to bargain about the impact and/or implementation of the Respondent's change in past practice, but insisted that such past practice remain unchanged. /1/ Moreover, the complaint does not allege a violation with regard to impact or implementation. /2/ In these circumstances, the Authority finds that it need not reach the question, as does the Judge, with regard to impact and implementation. Therefore, the Authority shall order that the complaint be dismissed. ORDER IT IS ORDERED that the complaint in Case No. 9-CA-967 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., June 21, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Lt. Col. Gordon B. Finley, Jr., Esq. For the Respondent Stefanie Arthur, Esq. For the General Counsel Peggy Whitaker For the Charging Party Before: WILLIAM NAIMARK, Administrative Law Judge DECISION Statement of the Case Pursuant to a Complaint and Notice of Hearing issued on July 1, 1981 by the Regional Director for the Federal Labor Relations Authority, San Francisco, California Region, a hearing was held before the undersigned on August 19, 1981 at San Francisco, California. This is a proceeding under the Federal Service Labor-Management Relations Statute (herein called the Statute or the Act). It is based on an amended charge filed on April 9, 1981 by National Association of Government Employees, Local R12-91 (herein called the Union) against Department of the Air Force, Headquarters 93rd Combat Support Group (SAC), Castle Air Force Base, California (herein called the Respondent). The Complaint alleged that on or about January 1, 1981 Respondent abolished its practice of permitting children of employees of the Child Care Center to attend the Center without payment; that this change was effected prior to completion of bargaining with the Union-- all in violation of Sections 7116(a)(1) and (5) of the Statute. Respondent filed an answer on July 17, 1981 which denied the essential allegations in the Complaint as well as the commission of any unfair labor practices. All parties were represented at the hearing. Each was afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs were filed with the undersigned which have been duly considered. /3/ Upon the entire record herein, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence adduced at the hearing, I make the following findings and conclusions: Findings of Fact 1. At all times material herein the Union has been, and still is the collective bargaining representative of all non-appropriated fund employees at Castle Air Force Base, California. 2. A non-appropriated fund is a self-sustaining organization which operates from the profit made on the base derived from stores, snack bars and some appointed fund monies. Child care is a non-appropriated fund activity. 3. Both the Union and Respondent are parties to a written collective bargaining agreement which was executed on January 16, 1975 and is still in effect. The said agreement provides in Article II, "MATTERS FOR CONSULTATION AND AGREEMENT", the following: Section 1. It is agreed that matters appropriate for consultation and negotiation between the parties are policies and practices related to working conditions which are within the discretion of the Employer including, but not limited to such matters as safety, training, labor-management cooperation, employee services, methods of adjusting grievances, granting of leave, promotion plans, demotion practices, reduction-in-force practices, and hours of work. Section 2. It is agreed that 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 appropriate matters not originally covered in this Agreement. Section 3. It is further agreed and understood that any prior benefits and practices and understandings which have been mutually acceptable to the Employer and the Union, but which are not specifically covered by this Agreement may be changed by the Employer. If the Union requests, consultations on such changes will be held with the General Manager. 4. Respondent operates a Child Care Center under the Morale, Welfare and Recreation (MWR) Division at the Base. Between 1960 and 1980 a practice existed whereby children of employees of this Center were permitted to attend free of charge while the employee-parent was at work. 5. In a memorandum dated December 2, 1980 /4/ Lt. Colonel David L. Roberts, Chief of the MWR Division, notified Child Care Center Director Lois McGee that a change in the aforesaid practice should be made. Roberts stated that, based on a memo from the Staff Judge Advocate's Office, it was determined that nursery employees at the Center should not be allowed to care for their own children thereat without paying the usual child care fee. A copy of the Staff Judge Advocate's memo was attached to Roberts' memorandum. McGee testified she received the said documents prior to December 10. 6. The Staff Judge Advocate's memo was dated September 10 and signed by Captain Larry J. Olson, Chief, Civil Law. It stated that Olson concluded the nursery employees at the Center should not be allowed to care for their children thereat without paying usual child care fees. He based his conclusion on AFR 34-3, Volume III, paragraph 4-10, which provides: "Welfare funds may be used to provide child care services at no cost to volunteers when they serve the Air Force Community, provided payment is not made to the volunteers. If the base child care center is operated as a welfare fund entity, income is credited to the center and expensed to the using activity (such as family services)." Olson declared that this Regulation shows an intent to provide child care services only to children of volunteers and not to compensated employees. He also referred to Air Force Regulation 215-1, Volume VI, paragraph 5-1(b), which establishes the ratio of children to staff permitted at Child Care Centers. Thus, Olson stated, allowing children of employees to attend without charge affects the Center's capacity to accept children of paying parents. Moreover, the floor space required per child is set forth in AFR 215-1, Vol. VI, paragraph 8-1(a). 7. Air Force Regulation 215-1, 4(d) provides, in substance, that no one, including MWR assigned personnel and employees, is authorized discounts on MWR merchandise, services, or fees, unless authorized by Air Force 215 series publications. FPM Supplement 532-2 in Subchapter S1-3(b)(1) provides: "There will be equal pay for substantially equal work for all prevailing rate employees who are working under similar conditions of employment in all agencies within the same local wage area." 8. McGee spoke to the Child Care Center employees on December 7, and she informed them of the impending changes regarding paying for the care of their children at the Center. The Director also told the employees that possibly it would be effective the first of the year. 9. On December 8 McGee telephoned Frank Luzania, president of the Union, and inquired whether he was aware that Respondent was about to change its practice of not charging for child care of employees' children. Luzania asked what the practice had been, and the Director explained it to him. Whereupon the union official said he wanted to talk to her and the employees. Luzania visited McGee at the Center that day and the Director explained the past practice again as well as the contemplated change to be effective about January 1, 1981. The record also reflects that McGee showed him the memo from Roberts, dated December 2, 1980, which was posted on the bulletin board. Luzania testified there was no writing on the memo and it was unsigned. 10. Record facts reveal that on December 5 Judith Newman, NAP Personnel Coordinator at the base, received a memo from Roberts asking her to set up a meeting between the Respondent and the Union to discuss proposed changed regarding child care. Newman telephoned Luzania on December 10 /5/ and requested he visit her. Whereupon the Union president met with the Coordinator and the latter explained the proposed changes regarding child care. Luzania was given a copy of the Staff Judge Advocate's memo, and a meeting was set up for December 12 to discuss the matter with Colonel Roberts. 11. On December 12 union president Luzania met with Colonel Roberts and Personnel Coordinator Newman. Upon being asked for his opinion regarding the planned change, Luzania replied it was unfair; that the Staff Judge Advocate's memo merely referred to volunteers not being required to pay for child care at the Center and it didn't recite that employees had to pay for such care; and that no compelling need existed for the change. Roberts stated that under the law children of employees could not receive free care; that the present practice to the contrary was unlawful and had to be changed. The union president inquired when it would take effect, and Roberts replied it would probably be about January 1, 1981. Luzania asked the colonel to let him know as to a firm date, and he also expressed a desire to speak to Commander Anderson. The union president made no counter proposals, but insisted that management should maintain the present practice regarding child care. Then Roberts stated it must be revised. Luzania said he would hate to file an unfair labor practice charge. Colonel Roberts agreed, however, to advise the union official as to the firm date. He also gave Luzania a copy of the Staff Judge Advocate's memo, but promised to furnish him with a clearer copy later on. The record indicates Roberts never contacted Luzania regarding a firm date for the implementation of the change. Neither did he furnish the union agent with a clear copy of the aforesaid memo, nor was any meeting arranged with Base Commander Anderson prior to the change. 12. On December 16 Director McGee posted the December 2 memo, which she received from Colonel Roberts, for the attention of the employees. At the bottom of said memo she wrote the following: "Child care fees for employees children will take effect Jan. 4, 1981." 13. The change in allowing employee's children free care was effected on January 1, 1981. Luzania learned about it when he telephoned McGee on January 2, 1981. 14. On February 2, 1981 a meeting was held between the parties to discuss the change. Commander Anderson and Newman attended, and the union was represented by Luzania and national representative Frank Benites. Anderson suggested reimbursing employees for child care expenses paid during January, as well as deferring the new plan for 30 or 60 days. Benites would not accept this proposal, and he indicated the parties were in basic disagreement. Conclusions The principal issues for determination as framed herein are as follows: (1) whether the Union waived its right to bargain over the decision to change the past practice regarding child care for employee's children by virtue of the written contract between the parties; (2) assuming arguendo, Respondent has an obligation to bargain with respect to the impact and implementation of the change, whether it satisfied this duty by proper notification to the Union and meeting with the bargaining representative in respect thereto. (1) General Counsel insists that the Union herein was entitled to bargain over the decision by Respondent to change its practice of providing free child care to employees' children. It contends that the subject of child care is a negotiable one, and that the Union never waived its right in that regard under the collective bargaining agreement. The Authority has had occasion to consider the question as to whether the establishment of child care facilities is a bargainable matter. In American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, 6 FLRA No. 76 the union therein proposed that "management shall establish free daycare facilities for the children of OPM employees." It was held that such a proposal was a condition of employment and a negotiable subject. Further, the Authority rejected the agency's defense that the proposal interfered with the right of the agency to determine its budget under Section 7106(a)(1) of the Statute. Thus, I agree that the subject of free child care for children of Respondent's employees is itself a bargainable matter. In asserting no waiver existed herein and that the employer was required to bargain with the Union regarding the substance of the change in free child care, General Counsel relies heavily on the decision in Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA No. 2. The Authority therein emphasized that a party may not unilaterally change existing conditions of employment during the contract term without affording the bargaining representative notice of the change and an opportunity to negotiate unless the representative had clearly and unmistakably waived its bargaining rights. In the cited case the employer, who changed its duty hours for employees, contended that the union had waived its right to bargain over such change pursuant to certain contractual provisions. It was provided on the agreement that when a change of such nature was made by the employer, the latter would notify the bargaining agent at least 14 days in advance, and that the change would continue for at least two pay periods. It was held that such language does not show a clear waiver of the right to bargain regarding a change in duty hours. Moreover, the Authority declared that a waiver will not be found from the fact that an agreement omits specific reference to a right, or that a labor organization has failed in negotiations to obtain protection with respect to certain of its rights. cf. NASA Kennedy Space Center, Florida, A/SLMR No. 223. In the case at bar Article II, Section 3 of the agreement between the parties provides, in substance, that any prior benefits and practices mutually acceptable, which are not covered by the agreement, "may be changed by the Employer". Further, if the Union requests, consultation on such changes will be held with the General Manager. The General Counsel contends that nothing in this language obviates the necessity for Respondent to give advance notice to the Union of the proposed change and afford the representative an opportunity to bargain regarding the decision to effect the change. As reflected in the cases cited, supra, a waiver of any bargaining right must be clear and not left to inference. No such waiver will be found in the absence of express language to that effect. While General Counsel argues that no waiver was spelled out in Article II, Section 3 of the contract herein, I disagree. The clause clearly stated that practices not covered by the agreement may be changed by the employer. It is not ambiguous, nor are its terms subject to differing interpretations. It affords the Respondent the right to alter such practices without bargaining as to the decision in regard thereto. The contractual language under discussion herein is quite distinguishable from that found in the Scott Air Force case. The unqualified right was assigned the employer therein to change the duty hours. The agreement merely bespoke of management's obligations when duty hours were changed. In the case at bar the right to change certain established practices is granted to management. Thus, I conclude that, under Article II, Section 3, the Union has waived its right to bargain as to the decision to change the practice regarding free child care for employees' children. /6/ (2) It is now well established in the public sector that although an agency may have no obligation to bargain on a particular management decision, the bargaining representative must be afforded an opportunity to bargain as to the impact and implementation of such decision. Department of the Air Force, Malmstrom Air Force Base, Montana, 2 FLRA No. 2; Federal Railroad Administration, A/SLMR No. 418. Respondent herein contends that, based on its discussion and meetings with Union representative Luzania, it has met this obligation; that by virtue of the said discussions an impasse was reached between the parties; and that the employer was therefore at liberty to effectuate the change in child care practice at the base. /7/ In order to satisfy the requirement of bargaining in good faith, management must meet with a union, exchange views, and consider proposals or counter-proposals advanced by the exclusive representative. As stated in Federal Railroad Administration, supra, the right to engage in a dialogue becomes meaningful only when reasonable notice is afforded the union, and ample opportunity is granted it to explore freely the matters involved prior to taking action. An employer must demonstrate, in order to comply with its duty in this regard, that it has discussed the issue at hand with an open mind and engaged in a "give and take" relationship. Limited discussions with no attempt to reach an agreement is not bargaining. See Internal Revenue Service and Brookhaven Service Center, IRS, 4 FLRA No. 30. Upon reviewing the entire record, I am persuaded that Respondent herein did not fulfill its obligation to bargain with the Union regarding the impact and implementation of the change in respect to free child care. At the outset, and before she informed Union representative Luzania, Director McGee addressed the employees and told them of the planned change in the past practice. The employees were advised it would occur about the first of the year. Although a meeting was held, at Luzania's request, with Colonel Roberts on December 12 to discuss the proposed elimination of free care for employees' children, I am not convinced management bargained thereat in good faith as to the impact and implementation of the change. While the Union official protested the contemplated action and asked Roberts for a meeting with Commander Anderson, no such meeting was arranged before the change was effected. Further, at their meeting Roberts promised to inform Luzania as to the firm date for the implementation, as well as furnish the Union with a clear copy of the Staff Judge Advocate's memo. Neither was done. In The Adjutant General's Office, Puerto Rico Air National Guard, 3 FLRA No. 55, the Activity failed to respond, as promised, to certain requests made by the union at the meeting between the parties. It was held that a statement by the employer promising their responses created the impression that management would consider proposals regarding impact and implementation. Failure to respond precluded the labor organization from considering the options of presenting alternative proposals. Under those circumstances, the Authority concluded the Activity did not fulfill its duty to bargain regarding impact and implementation. It is essential that management, in meeting with the exclusive representatives, retain an open mind and intend to bargain regarding the effect of, and procedures involved in, any contemplated action. Respondent's conduct herein belied any such intention. Apart from never responding to Luzania after the meeting on December 12-- and prior to implementing the change-- management failed to grant the union agent's request to meet with the Commander to discuss the matter further. /8/ The Union was foreclosed from making any suggestions as to the implementation of the change, and the conduct of Respondent's officials implied that its action was irreversible and the matter was non-bargainable. The discussions held with Luzania, as I view them, were merely to notify him of the proposed change and explain the necessity therefor. While Respondent argues that the Union made no proposals at the December 12 meeting, I do not subscribe to the position that no further duty devolved upon the employer. Even though the request regarding the decision concerning free child care was not negotiable, Respondent was still obliged to bargain in good faith as to impact and implementation. No further request specifically tailored to impact and implementation was necessary since management precluded and aborted any discussions thereon. The general request by Luzania, under the circumstances, sufficed to impose the duty to bargain with respect thereto. See The Adjutant General's Office, Puerto Rico Air National Guard, supra. I am constrained to find, moreover, that Respondent breached that duty as to impact and implementation and violated Sections 7116(a)(1) and (5) of the Statute. In respect to the remedy recommended herein, the General Counsel requests a return to the status quo ante practice regarding free child care. An issue is thus posed whether, apart from the appropriateness of such remedy, a return to the original practice pending impact bargaining would be improper based on the defense of illegality. A reading of the Air Force Regulations involved herein persuades me that they are insufficient as a defense to Respondent's obligation to bargain on the impact and implementation of the change herein. Thus, AFR 34-3 does not proscribe free child care for employees' children, and I do not deem its reference to volunteers as mandating such proscription. Without some express prohibition in this regard, or language clearly warranting such an inference, it cannot be said that extending free care to children of employees is illegal. Neither do I construe AFR 215-1, paragraph 4(c) as forbidding such free care. This particular regulation, while disallowing discounts on merchandise and services, evinces no clear intention to prohibit free child care to employees' children. By the same token I do not consider FPM S1-3(b)(1) as outlawing such service. This provision, stating that there will be equal pay for substantially equal work for employees does not address itself to the issue at hand. It cannot be concluded that such regulation attempted to cover the subject of child care. The language therein purports to deal with basic pay for coequal services rendered during employment. Thus I reject any contention that the regulations adverted to by Respondent should serve as a defense to a status quo ante remedy herein. /9/ See Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 5 FLRA No. 48. In accord with the contention of General Counsel, I agree that the remedy of status quo ante is proper in the case at bar. No serious disruption would ensue as a result of returning to the original practice pending bargaining on impact and implementation. Respondent adverts to possible distrust and contempt among Air Force personnel for MWR activities, as well as skewing wage rates of employees, whose children have free care to other employees not receiving such benefits. Such effects are either speculative in nature, or inappropriately raised as creating a hardship or serious disturbance to Respondent's operations. Norfolk Naval Shipyard, Portsmouth, Virginia, 6 FLRA No. 22; San Antonio Air Logistics Center, Kelly Air Force Base, 5 FLRA No. 22. Moreover, I consider that restoring the practice, which existed prior to January 1, 1981 in respect to child care for employees' children, is necessary to redress the failure by Respondent to bargain regarding the adverse effects of the changes and the implementation thereof. /10/ Having concluded that Respondent has violated Sections 7116(a)(1) and (5) of the Act, I recommend the Authority issue the following: ORDER Pursuant to Section 2423.20 of the Federal Labor Relations Authority's Rules and Regulations, and Section 7118 of the Statute, it is hereby ordered that the Department of the Air Force, Headquarters 93rd Combat Support Group (SAC), Castle Air Force Base, California, shall: 1. Cease and desist from: (a) Instituting any change in the past practice of providing free child care to the children of its Child Care Center employees, without first notifying National Association of Government Employees, Local R12-91, the exclusive representative of such employees, and affording it the opportunity to negotiate, to the extent consonant with law and regulation concerning the impact and implementation of such change. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute: (a) Rescind the change in the past practice of providing free child care to children of its Child Care Center employees represented by National Association of Government Employees, Local R12-91. (b) Reimburse to those employees of the Child Care Center all monies charged and collected since January 1, 1981 for the care of the children of its employees represented by National Association of Government Employees, Local R12-91. (c) Notify the National Association of Government Employees, Local R12-91, the exclusive representative of its Child Care Center employees, of any intention to change its past practice of providing free child care to the children of its Child Care Center employees, and, upon request, negotiate in good faith, to the extent consonant with law and regulation, concerning the impact and implementation of such change. (d) Post at its facility at Headquarters 93rd Combat Support Group (SAC), Castle Air Force Base, California, copies of the attached notice marked "Appendix" on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commander of the Headquarters 93rd Combat Support Group (SAC), and shall be posted and maintained by him for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and places where notices to employees are customarily posted. Reasonable steps shall be taken by the Commander to insure that such notices are not altered, defaced or covered by any other material. (e) Pursuant to Section 2423.20 of the Authority's Rules and Regulations, notify the Regional Director, Region IX, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. WILLIAM NAIMARK Administrative Law Judge Dated: May 20, 1982 Washington, D.C. APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT institute any change in the past practice of providing free child care to the children of its Child Care Center employees, without first notifying National Association of Government Employees, Local R12-91, the exclusive representative of such employees, and affording it the opportunity to negotiate, to the extent consonant with law and regulation concerning the impact and implementation of such change. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL rescind the change in the past practice of providing free child care to children of our Child Care Center employees represented by National Association of Government Employees, Local R12-91. WE WILL reimburse to those employees of the Child Care Center all monies charged and collected since January 1, 1981 for the care of the children of our employees represented by National Association of Government Employees, Local R12-91. WE WILL notify the National Association of Government Employees, Local R12-91, the exclusive representative of our Child Care Center employees, of any intention to change our past practice of providing free child care to the children of our Child Care Center employees, and, upon request, negotiate in good faith, to the extent consonant with law and regulation, concerning the impact and implementation of such change. (Agency or Activity) Dated: By: (Signature) This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region 9, whose address is: 530 Bush Street, Suite 542, San Francisco, CA, 94108, and whose telephone number is: (415) 556-8105. --------------- FOOTNOTES$ --------------- /1/ See Internal Revenue Service (IRS) and Brooklyn District Office, IRS, 2 FLRA 587, 589 (1980) wherein the Authority held that where a union is fully aware of impending action in sufficient time to demand bargaining, the union is obligated to request negotiations in order to give rise to an obligation to bargain. /2/ The complaint states only that the Respondent advised the Union that it intended to abolish the practice of free child care, that the change in practice was thereafter implemented, and that the Respondent thereby refused to bargain in good faith regarding a change in terms and conditions of employment. /3/ Subsequent to the filing of its brief, the General Counsel filed a Motion to Correct Transcript. The Motion is granted and the transcript is corrected as set forth in the amended document marked Attachment A. /4/ All dates hereinafter mentioned occur in 1980 unless otherwise indicated. /5/ Newman attempted to reach the union official upon receiving the memo from Roberts, but could not reach Luzania until this date. /6/ Despite the waiver of its right to bargain regarding the substance of the change in the practice established herein, the Union was entitled to consultation under said section of the agreement. Using Section 7117(d)(2) of the Statute as a guide, management is thus required to inform the bargaining agent of the substantive change, as well as allow it to present its views and recommendations. I am persuaded that Respondent has satisfied its obligation in this regard. It notified the Union representative Luzania on December 8-- three weeks before it implemented the change-- as to its intention regarding modifying free child care service. Further, the Respondent's officials met on three occasions with Luzania. At these times the change was explained to the union agent and management stated its reasons therefor. Luzania was shown a copy of the Staff Judge Advocate's memo, and Colonel Roberts agreed to advise him of the firm date for implementation. /7/ Respondent also contended that both agency and Government-wide regulations mandated the change, and that it would have been illegal to continue free child care for employees' children. The parties addressed the question of illegality in their briefs, as well as the issues of whether "compelling need" existed for the change and if it's determinable in this proceeding. Since I conclude Respondent was privileged to make the change under the contract herein, the issue of illegality is academic with respect thereto. /8/ The record does disclose that a meeting was convened with Commander Anderson on February 2, 1981. However, as this was subsequent to implementing the change, it would not affect a determination as to whether Respondent bargained in good faith prior thereto. /9/ Having found that the regulations, Air Force and Government-wide, serve as no defense herein, the questions of "compelling need" is not determined. /10/ See and compare Federal Correctional Institution, 8 FLRA No. 111.