[ v18 p855 ]
The decision of the Authority follows:
18 FLRA No. 101 DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION BALTIMORE, MARYLAND Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1501 Charging Party Case No. 79-CA-30198 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. The General Counsel filed exceptions to the Judge's Decision. 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 recommended Order, as modified herein. In adopting the Judge's conclusion that the complaint should be dismissed, the Authority finds it unnecessary to pass upon whether the Respondent's denial of official time to off-site assistant local representatives of the Union constituted a rejection of the terms of the collective bargaining agreement, /1/ because it is concluded, in agreement with the Respondent's contention, that this proceeding is barred by section 7116(d) of the Statute. As found by the Judge, on July 13, 1982, the American Federation of Government Employees, AFL-CIO (AFGE) filed a "national" grievance which alleged violations of Article 30, Appendix F, and related provisions, of the National Agreement between AFGE and the Respondent covering all employees in a consolidated nationwide bargaining unit. Subsequently, AFGE set forth 31 issues it believed were presented by the grievance. Issue No. 11, as set forth by the Arbitrator in his interim Opinion and Award, issued February 22, 1984, stated: Issue 11: Whether Management has violated the Master agreement by interfering with the Union's discretion in its choice of representatives, specifically by: * * * * (5) refusing to grant official time to present grievances, unless the person requesting happens to be the on-site representative in the office where Management alleges the grievance occurred. /2/ On February 10, 1983, after AFGE's national grievance had been filed, the Charging Party, AFGE Local 1501, filed the original unfair labor practice charge in this proceeding. Section 7116(d) of the Statute provides in pertinent part: (I)ssues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures. In the Authority's view, the issue which is the subject matter of both the instant complaint and the national grievance covering the entire consolidated unit is the refusal of the Social Security Administration to give official time to local representatives and assistant local representatives of AFGE who are not employed at the same sites wherein the labor relations matters arise. See Department of the Treasury, U.S. Customs Service, Region VIII, San Francisco, California, 13 FLRA 631 (1984). Thus, the Authority finds that the prior invocation of the grievance procedure under the parties' negotiated agreement by AFGE, the exclusive bargaining representative of the consolidated nationwide bargaining unit herein, constituted an election of that procedure under section 7116(d) of the Statute, thereby precluding the Charging Party from raising the same issue subsequently as an unfair labor practice. In this regard, since the issue between the Agency and AFGE involved the terms of the collective bargaining agreement applicable nationwide, the AFGE, as the exclusive bargaining representative, is the "aggrieved party" having the discretion to choose under which procedure the issue was to be raised. See Department of Defense Dependents Schools, Pacific Region, 17 FLRA No. 135 (1985). Accordingly, the Authority shall dismiss the instant complaint. ORDER IT IS ORDERED that the complaint in Case No. 79-CA-30198 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., June 28, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Mr. Wilson G. Schuerholz For the Respondent Mr. Michael Teefy For the Charging Party Daniel Minahan, Esquire For the General Counsel Before: GARVIN LEE OLIVER, Administrative Law Judge DECISION Statement of the Case This decision concerns an unfair labor pr8ctice complaint issued by the Regional Director, Region VII, Federal Labor Relations Authority, Denver, Colorado against the Social Security Administration, Baltimore, Maryland (Respondent), based on a charge filed by the American Federation of Government Employees, AFL-CIO (Charging Party or Union). The complaint alleged, in substance, that Respondent violated sections 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the Statute), by refusing on two occasions to recognize the Union's properly designated assistant local representative for its downtown Seattle district office, for purposes of official time, within the meaning of Article 30, Appendix F, Section F of the collective bargaining agreement. The complaint alleged that Respondent thereby clearly, patently, and flagrantly breached the terms of such provision and unilaterally rejected its terms, and thus has refused to bargain in good faith and interfered with rights guaranteed by the Statute. Respondent's answer admitted the jurisdictional allegations relating to the Respondent, Charging Party, and the charge, but denied any violation of the Statute. A hearing was held in Seattle, Washington. The Respondent, Charging Party, and the General Counsel were represented 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, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations. II. Findings of Fact The Union is the exclusive representative of employees of the Respondent in a consolidated, nationwide bargaining unit. At all times material herein, a collective bargaining agreement has existed between the Union and Respondent covering such employees. Article 30, Official Time, of such agreement provides, in part, as follows: Article 30-- Official Time . . . . Section 2-- Designation A. In accordance with Appendices A through F the employer will recognize union officials designated by the president of each local union or council, or designee, as appropriate users of official duty hours for union representational activities and labor-management relations functions. B. The Union will provide the Administration with lists of designated union officials at the respective levels after the effective date of this agreement and notify the Administration of subsequent changes. These lists will include each official's name, location and telephone number. . . . . Appendix F-- Official Time and Labor Relations in Field Offices . . . . E. Normally, the Local President shall designate one (1) Local Representative and one (1) Assistant Local Representative for each field office installation to coordinate and conduct labor-management relations within that installation. Such Local Representatives and Assistants shall be recognized as primary or alternate representatives of the Union within that installation. The responsibilities of Local Representatives should include but are not limited to: meetings and discussions concerning labor-management relations issues initiated locally; employee grievances within the installation; management notice of proposals to change conditions of employment initiated locally. Additional assistant representatives may be designated for field installations in excess of 75 employees but there will be no more than one (1) primary Local Representative. To the extent practicable, local bargaining issues will be negotiated locally by the Local President and/or Local Representatives. The parties will endeavor to minimize travel expenses for such negotiations. In the event that there is no Local Representative or Assistant Local Representative available, labor-management relations will be conducted with the Local President (or designee) directly. F. Consistent with 5 USC 71 and the terms of this agreement, Council officers and representatives and Local Officers and Representatives will be granted reasonable official time which is necessary for the performance of labor-management relations. Such activities include time needed for: meetings with management representatives on conditions of employment; grievances, complaints and appeals (formal and informal); other matters which may involve a labor-management relationship or interface. Time for negotiations is granted in accordance with 5 USC 71. Official time will not be granted for internal union business in accordance with 5 USC 7131(b). The amount and occasion of official time is generally governed by Section J and this Section of this Appendix. For the purposes of Section J2 (union initiated activities), the following provisions apply: Assistant Local Representatives: No official time is granted, except when approved in advance by local management or when replacing the Primary Local Representative. When replacing the Local Representative, time used by the assistant representative under J2 will be charged against the total hours available to the local representative. Local Representative: Up to 4 hours per week for offices under 70 employees, up to 10 hours per week for offices with 70 or more employees. Time in excess of 6-month cumulative averages based on a fixed 6-month calendar period may be approved as necessary on a case-by-case basis. Local Representatives and local management may choose to schedule usage of official time on some regular basis, provided that the terms of this agreement are not compromised by such scheduling. . . . . J. Official time for union representatives falls generally into two categories: 1. Time for union representational activities initiated . by the Administrator. 2. Time for representational activities initiated by union representatives-- the total amount of official time which may be used for the purpose of handling grievances and other complaints, meetings and consulting with management at the request of the Union and handling other such representational functions shall be governed by provisions and allowances in Section F of this Appendix. K. The Union will make every reasonable effort to use the Local Representative of the office in which the grievance arises for the first and second step of the grievance. The Local President shall designate the individual who will be the representative for those grievances which proceed to the third step. Articles 24 and 25 contain the grievance and arbitration procedures. As indicated in the agreement, the local representative is a first-line union contract in a field office. The local representative attends meetings and discussions about local conditions of employment, normally handles grievances within the installation of the first and second step, and receives notices from local management of changes in conditions of employment initiated locally. The local representative is expected to deal with management on a day-to-day basis. An assistant local representative acts in the absence of the local representative and also may function concurrently with the primary local representative where the matter calls for his or her special expertise. (Tr. 18-19, 31, 42, 127, 153). On December 14, 1982, the Union, by Jeffrey Saul, vice-president, Local 1501, notified Gene Barnes, district manger of the Seattle district, that Mary O'Malley, an employee of the South Seattle branch office, had been designated by the Union as the assistant local representative for the Seattle district office (G.C. Exh. 3). The Seattle district office is one of the largest field offices in the state, having from 70-100 employees. (Tr. 19, 48). It is six to eight miles and a 15-20 minute drive from the South Seattle branch office (Tr. 20). In order to reply to the letter, district management conferred with Respondent's regional la0or relations personnel who, in turn, conferred with the Central Office about a consistent application of the official time provisions of the agreement in this situation. Based on this advice, Respondent, by Barnes, advised Saul, by memorandum dated December 23, 1982, that O'Malley would not be granted official time to serve as assistant local representative. Respondent stated that this determination was based on Article 30, Appendix F, Sections E and K of the national agreement, and that, "It was clearly the intent of the parties involved in the national contract negotiations that local issues would be handled by local representatives and local management." (G.C. Exh. 4). A few days earlier, on December 14, 16, 17 and 22, 1982, O'Malley's supervisor denied her official time to prepare an unfair labor practice charge as the assistant local representative of the Seattle district office. The denial was based on the same grounds subsequently asserted in Barnes' letter (Tr. 51, 56, 69, 80, 158, 166-171, G.C. Exh. 9). On January 24, 1983, Saul wrote to Ruth Ruby, Respondent's assistant regional commissioner for management and budget, informing her that Bob Gray, another employee in the Seattle South branch office, would replace O'Malley as the assistant local representative for the Seattle district office (G.C. Exh. 6). By letter dated February 24, 1983, Ruby replied to Saul refusing to recognize Gray as the alternate local representative for the purpose of official time. Ruby also claimed that this action was pursuant to Article 30, Appendix F, Sections E and K of the agreement, and stated, "Because of the union commitment to name and use on-site representatives, Mr. Gray will not be granted official time" (G.C. Exh. 7). The parties stipulated that Mary O'Malley and Robert Gray were recognized pursuant to Mr. Saul's designation as assistant local representatives of the downtown Seattle district office (Tr. 61). The issue is strictly whether, as such designees, they were entitled to official time pursuant to the agreement to serve in such capacities. The parties also agreed that Ms. O'Malley received official time during the relevant period in order to serve in other Union capacities and functions (Tr. 67-68). In April 1983, Saul designated James Bolin, a Seattle district office employee, as the assistant local representative for the District Office. Bolin, however, accepted the appointment only on the condition that he not be empowered to bind the union in negotiations (Tr. 24). Negotiations Regarding National Agreement Negotiations for the national agreement took from June 1980 to December 21, 1981. The official time article referenced above was an article of major importance. It was the last article of which agreement was reached. (Tr. 130). During the course of the negotiations Respondent and the Union offered various proposals concerning official time (G.C. Exh. 11, 12). Nancy Ann Williams, one of Respondent's negotiators, and Witold Skwierczynski, one of the Union's negotiators, were called by Respondent and testified in detail regarding the various proposals and the developments during the course of the negotiations. The fundamental disagreement between these negotiators concerned the account of the final bargaining session which produced agreement on the official time appendix in issue. Williams testified that during these negotiations management made it quite clear that it was concerned about who local management would be dealing with in the day-to-day labor relations communications and grievance processing, and that the representative, whether called a local representative or on-site representative or steward, needed to be someone employed in the installation where they were actually providing the services. Williams testified that the Union said they fully understood and endorsed this position. Williams acknowledged that management attempted to insert the term "on-site" in what became Appendix F, paragraph E. She stated that John Harris, chief negotiator for the Union for field operations, indicated that there were political reasons within the Union why he could not have that kind of language in the agreement, but that he fully understood and had no quarrel with the management position that the local representative should be somebody on site. Williams testified that management came away from the negotiations with the understanding that local representatives and assistant representatives would be people employed in the installations where they were providing the services. Off-site designees would have no right to official time unless, consistent with past practice, a good showing of need was made. Witold Skwierczynski testified that management attempted to insert the term "on-site" into the appendix. He denied that John Harris had endorsed the concept during the negotiations. He testified that Harris flatly rejected it, as the Union had done in the past, on the basis that it would create an impossible situation. He testified that management then withdrew the proposal and also agreed to delete the term "on-site" from a later counter-proposal dealing with the representatives who would handle grievances at the first and second step. Again, simply the term "local representative" was agreed upon. Practices Under the Agreement Pam Smith, a management official in the Seattle region, testified that as soon as the new contract went into effect in 1982, she dealt with the two local presidents that covered the installations in the region. These dealings concerned, in part, obtaining the Union designations of local representatives and discussing the official time such representatives would receive. She stated that the conversations with the local presidents always concerned the designation of someone in the particular offices to be the local representative, and the amount of time it was necessarily taking them to obtain the on-site persons. She testified that the initial list provided her by Jeff Saul of the Seattle local only included on-site representatives, or his designation was left blank (Tr. 160-161, 166). Saul recalled that he designated himself as alternative representative for Bellevue, but acknowledged that he was subsequently once denied official time to serve at that branch office (Tr. 29, 45). Smith testified that the Oregon local president, Randy Randall, initially designated some off-site persons as alternate representatives. According to Smith, she then advised Randall that off-site representatives could not receive official time, and Randall replied that he did not expect the off-site designees to receive official time and was working towards getting on-site representatives as the alternates. (Tr. 165). Smith testified that sometime later she did grant an exception which Randall had requested and, as a result, gave official time to an off-site representative where a special showing of need was made (Tr. 172-173; 175-178). Saul once designated himself local representative at Respondent's Yakima, Washington field office with Respondent's agreement and was granted official time in this connection. However, management was aware of the special need, and Saul had explained that he hoped in the future to appoint a permanent on-site representative. (Tr. 36-38; Resp. Exh. 1). The National Official Time Grievance On July 13, 1982, the Union filed an institutional grievance under Article 24, Section 10 of the national agreement. The grievance alleged "repeated and continuing violations of Article 30, Appendix F and related provisions of the National Agreement, past practice and understandings concerning official time and union representation." The grievance alleged that the violations were, among other things, "evidence of bad faith in the negotiation of the National Agreement." (Resp. Exh. 5(a)). On October 26, 1982, the Union set forth 31 issues it believed were involved in the grievance. Issue 11 was stated to be: Management in many locations is not recognizing the Union's structure and its list of designees. Management is frequently interfering with the internal business of the Union by attempting to regulate what its lines of communication and structure should be, including attempting to veto our choices of representative, our internal organization, etc. (Resp. Exh. 5(b)). At about the same time, the Union delivered to the Respondent in a shopping cart documents showing more than 1,000 individual instances where official time had been denied to Union representatives. The Respondent and the Union agreed that additional denials of official time touching on the issues raised in the grievance would be, figuratively, added to the "shopping cart." The Union's mechanism for accomplishing this was to have the documentary evidence of a denial of official time, usually a grievance or an SSA Form 75, sent to the Union's representative on the grievance, Gayla Reiter. Unless the evidence of a particular denial of official time is forwarded in this manner, the denial is not considered part of the grievance by the Union. There is no evidence that any of the documentation giving rise to the present dispute has been forwarded to Gayla Reiter. No grievance was ever filed over the denial of official time to O'Malley or Gray to act as assistant local representatives for the Seattle district office. The national grievance was elevated to arbitration, and a hearing was held on August 2, 1983. The arbitrator's interim opinion and award was rendered February 22, 1984. (ALJ Exh. 1). /3/ The arbitrator reserved jurisdiction for purposes of interpretation or enforcement. As to issue 11, noted above, the arbitrator found that denials of official time to designated Union officials for the performance of labor/management activities constituted a violation of the contract. He noted, in part, as follows: The master agreement, Article 30, Appendix F: Official Time and Labor Relations in Field Offices, is quite clear and needs little or no construction here. The Union alone has the authority to designate its representatives . . . . The language of Appendix F would not seem to limit the Union's use of representatives to those posted in the immediate area, but common sense dictates that they should do so whenever possible in order to avoid additional expense to management . . . . However, the Union should be allowed to designate alternative representatives in an office for the use of official time where the primary representatives cannot handle a particular matter. Additionally, management, under the letter and spirit of the agreement, is obligated to grant official time to Union officers to present Section 10 grievances and cannot limit representation to on-site representatives. . . . . Position of the Parties The General Counsel contends that Respondent, by refusing to recognize the Union's properly designated assistant local representatives for purposes of official time, clearly and patently breached or repudiated Article 30, Appendix F of the collective bargaining agreement. The General Counsel argues that the contract allows some official time for assistant local representatives: that O'Malley and Gray were properly designated as assistant local representatives; and for Respondent to state that no official time would be approved amounted to a clear, patent, and persistent breaches of the contract and, in effect, repudiated the official time provisions. The General Counsel claims that a union retains the prerogative to designate representatives of its choice, and that this imposes on the agency a duty to provide official time to such designated representative. The General Counsel claims there is no clear and unmistakable evidence that the Union waived its right to designate any employee as an assistant local representative for official time purposes. The General Counsel also insists that no language in the contract limits official time to those assistant local representatives employed at the facility they represent. The General Counsel states that Section E of Appendix F, providing for the designation of assistant local representatives "for each field office installation to coordinate and conduct labor-management relations within that installation" merely describes where the assistant representative will conduct their duties, not where they must be employed. The General Counsel also asserts that Section K, which obligates the Union to "make every reasonable effort to use to the local representative of the office in which the grievance arises . . . " does not cover all purposes and simply describes which representative the Union must select for grievance processing, not the office where the representative must be employed. The General Counsel insists that the rest of the official time article demonstrates that the parties knew how to draft and agree to restrictions on the physical location if they had intended to embody such a restriction in this situation. The General Counsel claims that the arbitrator's award also thoroughly shatters Respondent's argument that the contract can be read to require the designation of on-site assistant local representatives. The General Counsel also maintains that the practices of the parties in implementing the agreement do not support Respondent's position. Finally, the General Counsel urges that the testimony of Witold Skwierczynski should be credited, and contends that nothing in the bargaining history leading to the national agreement indicates that only on-site assistant local representatives are entitled to official time. The General Counsel also maintains that the national official time grievance does not bar consideration of the merits of the case under section 7116(d). The General Counsel claims that the national official time grievance did not clearly raise the same issue raised in the Union's unfair labor practice charge. The General Counsel states that the state of the grievance at the time the charge is filed is controlling, and evidence bearing on the processing of the grievance after February 9, 1983 should have been excluded from the record. Respondent defends on the basis that its determination that an off-site representative was not entitled to official time was not a clear, patent, flagrant breach of the contract, but was instead management's legitimate and reasonable interpretation of the language of the applicable provision. Respondent relies on Nancy Ann Williams' testimony concerning the bargaining history particularly the Union's alleged endorsement of management's position that assistant representatives would be employed in the installation where they were rendering the services. Respondent also claims that the language of Article 30, Appendix F, paragraph E and F reflect this concept. Respondent points out that paragraph E speaks of assistant local representatives "for each field office installation" and indicates that the duties of such representatives are all centered on being "initiated locally," or concern matters "within the installation." Respondent also relies on the other actions of the parties in implementing the agreement, claiming that this demonstrates that off-site representatives were not normally designated or afforded official time in the absence of a showing of need. Respondent also asserts that the national grievance illustrates that there was much in the official time area which was in dispute, thus lending further weight to its position that the instant matter is indeed an arguable interpretation question and not bad faith. Respondent also makes the affirmative defense that the case is barred under section 7116(d) by the national official time grievance. Respondent claims that the issues were covered by the grievance filed in July 1982, as further elaborated on by the Union's letter of October 6, 1982, and discussed as issue 11 in the arbitrator's award. Discussion, Conclusion, and Recommendations The complaint alleges that Respondent refused on two occasions to recognize the Union's properly designated assistant local representatives for its downtown Seattle district office, for purposes of official time, within the meaning of the contractual provision contained in Article 30, Appendix F, section F, thereby clearly, patently and flagrantly breaching such provision and unilaterally rejecting its terms. Two basic criteria must be met for a breach of contract to rise to the level of an unfair labor practice: (1) the conduct must constitute a clear, patent, and flagrant breach of the contract, as opposed to an arguable interpretation of the contract /4/ and (2) the conduct must involve persistent breaches of the contract so as to constitute a rejection of the collective bargaining agreement, /5/ or otherwise demonstrate a complete repudiation of the collective bargaining agreement. /6/ Section 2423.18 of the Rules and Regulations, 5 C.F.R. 2423.18, based on section 7118(a)(7) and (8) of the Statute, provides that the General Counsel "shall have the burden of proving the allegations of the complaint by a preponderance of the evidence." It is concluded that a preponderance of the evidence does not establish that Respondent violated sections 7116(a)(1) and (5), as alleged. The record does not demonstrate that Respondent's action in denying official time to off-site assistant local representatives was a clear, patent, and flagrant breach of Article 30, Appendix F, section F of the contract. In other words, the breach is not easily seen, obvious, and outrageously noticeable. The contract, when read as a whole, is not clear on its face in this regard. Cf. Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri, 11 FLRA No. 90 (1983). The alleged breach is not so patent that Respondent could not have reasonable thought otherwise. Cf. Food Service and Quality Service, U.S. Department of Agriculture, Washington, D.C., supra, 7 FLRA at 673. Nor does Respondent's action demonstrate a flagrant breach such as to suggest a lack of good faith. Ibid. Respondent's action was based on its interpretation of the language of the negotiated agreement and the account of its negotiator concerning the negotiations leading to that agreement. In this proceeding, Respondent also defended on the basis of the practice of the parties in implementing that agreement. Respondent's interpretation is arguably within the terms of the negotiated agreement. With regard to the second criterion, the record does show two instances of refusal to recognize off-site assistant local representatives for purposes of official time. However, this does not constitute a rejection of the terms of the collective bargaining agreement or of the principles of collective bargaining. Rather, it was part of the good faith disagreement over contract terms. Respondent has taken a consistent position in good faith and had no obligation to acquiesce in the Union's position. The record demonstrates that the parties have previously had other similar disputes over the official time provisions of the contract. Their past conduct demonstrates full acceptance of the grievance and arbitration route to the resolution of their differences over official time. The Union's right to designate its own representatives when dealing with agency management in fulfilling its responsibilities under the Statute is well settled. Department of the Air Force, 915th Tactical Fighter Group, Homestead Air Force Base, 13 FLRA 135, 13 FLRA No. 33 (1983). However, here the parties have provided in their collective bargaining agreement for a formalized bargaining relationship. See, American Federation of Government Employees, AFL-CIO and U.S. Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 4 FLRA 272 (1980). The essence of this unfair labor practice complaint involves differing and arguable interpretations of Article 30, Appendix F, the official time provisions of their collective bargaining agreement negotiated pursuant to section 7131(d) of the Statute. The language of the agreement is susceptible to an interpretation, as set forth in the positions of the parties, above, which might, or might not, authorize Respondent's actions. Thus, the appropriate avenue for resolution of the dispute is through the grievance and arbitration procedures contained in the parties agreement pursuant to section 7121 of the Statute. See fn. 4. In these circumstances, the denial of official time, a contractual right, did not rise to the level of interference with rights guaranteed by the Statute, e.g. the right to form, join, or assist a labor organization, and constitute a separate violation of section 7116(a)(1) of the Statute. Cf. Department of the Air Force, Base Procurement Office, Vandenburg Air Force Base, California, A/SLMR No. 485, 5 A/SLMR 112, FLRC No. 75A-25, 4 FLRC 587 (1976); Iowa National Guard and National Guard Bureau, 8 FLRA No. 101, 8 FLRA 500, 512-513 (1982). Based on the foregoing, it is unnecessary to consider other issues raised by the parties. It is recommended that the Authority issue the following Order: ORDER IT IS HEREBY ORDERED that the complaint in Case No. 79-CA-30198 be, and it hereby is, DISMISSED. GARVIN LEE OLIVER Administrative Law Judge Dated: August 8, 1984 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ In so concluding the Authority rejects the Judge's comments concerning the criteria which must be met in order for a breach of contract to rise to the level of an unfair labor practice. In this regard, see U.S. Customs Service, Region VII, Los Angeles, California, 10 FLRA 251 (1982); Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri, 11 FLRA 516 (1983); Internal Revenue Service, and Internal Revenue Service, Detroit District, 12 FLRA 445 (1983). /2/ Although not a factor involved in the disposition of the case herein, the Authority notes that the Arbitrator sustained the Union's position on this issue. /3/ Over the General Counsel's objection, the February 10, 1984 hearing record was held to allow for the receipt of the arbitrator's award. The award was provided by Respondent and was received as ALJ Exhibit No. 1. Thereafter, the parties filed their briefs in the case. /4/ Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 3 FLRA 512 (1980); Internal Revenue Service and Brookhaven Service Center, 6 FLRA 713 at 725 (1981); Food Safety and Quality Service, U.S. Department of Agriculture, Washington, D.C., 7 FLRA 665 (1982); Division of Military and Naval Affairs, State of New York, Albany, New York, 8 FLRA 307 (1982). /5/ Internal Revenue Service and Internal Revenue Service, Detroit District, 12 FLRA No. 87 (1983); Kaiserslautern American High School, Department of Defense Dependents Schools, Germany North Region, 9 FLRA 184 (1982). /6/ Great Lakes Program Service Center, Social Security Administration, Department of Health and Human Services, Chicago, Illinois, 9 FLRA 499 (1982); Veterans Administration Hospital, Danville, Illinois, 4 FLRA 80 (1980).