[ v21 p814 ]
The decision of the Authority follows:
21 FLRA No. 100 ABERDEEN PROVING GROUND DEPARTMENT OF THE ARMY Respondent and INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS LOCAL LODGE 2424, AFL-CIO Charging Party Case No. 3-CA-20077 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority on exceptions to the attached Administrative Law Judge's Decision filed by the General Counsel. The Respondent filed an opposition to the General CounselS exceptions. The complaint in this case alleged a violation of section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when the Respondent refused to negotiate on the "charging Party's proposal to grant administrative leave rather than "forced annual leave" on the day after Thanksgiving when Respondent's operations would be closed. II. Background Aberdeed Proving Ground, Department of the Army (Respondent), met on September 15, 1981, with the International Association of Machinists and Aerospace Workers, Local Lodge 2424, AFL-CIO (the Union), and informed the Union of its decision to curtail operations of the Aberdeen Proving Ground on the day after Thanksgiving, and that employees would be placed on "forced annual leave" for that day. The Union sought to negotiate concerning the impact of the Respondent's decision to curtail its operations and the procedures leading to its implementation. During negotiations held in October, the Union presented, among other things, two proposals to grant administrative leave to all employees during the closure of the Respondent's operations on the day after Thanksgiving, rather than, as decided by the Respondent, to place employees on forced annual leave. The Respondent refused to bargain on these proposals, stating that Department of Defense (DOD) and Department of the Army (DA) regulations precluded a grant of administrative leave for an anticipated closure of operations. The negotiating session ended shortly thereafter. The following day, and again a few days before Thanksgiving, the Respondent offered to negotiate with the Union on procedures and appropriate arrangements concerning the upcoming closure but the Union declined. III. Judge's Decision The Judge concluded that the Respondent had no duty to bargain over the Union's proposal regarding the granting of administrative leave because the subject of the Union's proposal was inconsistent with Agency regulations which specifically barred administrative leave for an anticipated curtailment of operations and the Authority had not previously determined that there was no compelling need for the conflicting regulation. The granting of administrative leave to unit employees in connection with the temporary curtailment of agency operations is a negotiable matter affecting working conditions of unit employees. See Long Beach Naval Shipyard, Long Beach, California and International Federation of Professionals and Technical Engineers, Local 174, AFL-CIO, 7 FLRA 362 (1981). The Judge noted this decision, but dismissed the complaint because the Authority had not yet determined that no compelling need existed for the DOD and DA regulations upon which the Respondent specifically relied. IV. Positions of the Parties Exceptions to the Judge's findings and conclusions were filed by the General Counsel concerning the issue of compelling need for the DOD and DA regulations which were raised as a bar to negotiations on the Union's proposal for administrative leave. The General Counsel contended that the question of compelling need for an agency regulation may be raised as part of an unfair labor practice proceeding, and that when the Respondent in this case asserted a compelling need for its regulations it had the burden of establishing this assertion before the Judge. The General Counsel argued that the Respondent did not meet the burden of establishing compelling need for the regulations and as a consequence violated section 7116(a)(1) and (5) of the Statute. The General Counsel also excepted to certain credibility resolutions made by the Judge. In its opposition to the General Counsel's exceptions, the Respondent contended that it had no duty to establish a compelling need for its regulations without the issue having been raised by the Union under the Authority's negotiability procedures. Moreover, although continuing to agree with the Judge that compelling need must be determined in a separate proceeding, the Respondent asserts that a compelling need existed for the regulations in question on the grounds that the regulations, which precluded a grant of administrative leave under the circumstances, are essential to the accomplishment of the stated objective of curtailing operations on the day in question in order to conserve energy. Further, the Respondent asserts in its opposition that compelling need was established at the hearing. V. Analysis Section 7117(b) of the Statute empowers the Authority to resolve compelling need issues where, during the course of collective bargaining, "an exclusive representative alleges that no compelling need exists for any rule or regulation . . . which is then in effect and which governs any matter at issue in such collective bargaining . . . . " Subsequent to the Judge's Decision, the Authority issued Defense Logistics Agency (Cameron Station, Virginia), 12 FLRA 412 (1983), affirmed sub nom. Defense Logistics Agency, et al. v. FLRA, 754 F.2d 1003 (D.C. Cir. 1985), /1/ where it was concluded that issues relating to whether there exists a compelling need for an agency regulation so as to bar negotiations on inconsistent proposals appropriately may be raised and decided in an unfair labor practice proceeding when the agency raises compelling need as an affirmative defense in such an unfair labor practice proceeding. /2/ As indicated in Defense Logistics Agency, when an agency refuses to bargain over a union proposal during ongoing collective bargaining negotiations because the proposal is alleged to be inconsistent with an existing agency-wide regulation for which a compelling need exists, section 7117 of the Statute requires that the issue be resolved through the procedures in section 7117 of the Statute and Part 2424 of the Authority's Rules and Regulations. A different situation is presented in cases of disputes involving an agency's alleged unilateral changes in conditions of employment, where issues of negotiability -- including, as in the instant case, assertions of compelling need for agency regulations -- are raised as affirmative defenses. To resolve such disputes, the Authority had promulgated procedures (5 C.F.R. Sections 2423.5 and 2424.5) which recognize a union's right either: (1) to seek resolution of the entire dispute, including the negotiability issues, in the unfair labor practice forum; or (2) to seek initial and separate resolution of the negotiability issues in the negotiability appeal forum. It is a well-established principle in both private sector and federal sector labor law that an employer's unilateral change in what subsequently can be shown to be a bargainable working condition violates the bargaining obligation and constitutes an unfair labor practice. See NLRB v. Katz, 369 U.S. 736 (1962) (private sector); FLRA v. United States Department of the Air Force, Tinker Air Force Base, 735 F.2d 1513 (D.C. Cir. 1984) (federal sector). In such cases, one of the defenses available to management is that the substance of the change is nonnegotiable. In the Authority's view, allowing the resolution of compelling need issues in an unfair labor practice proceeding where the issue was raised as a defense to the unfair labor practice charge, is supported by the Statute, its legislative history, and public policy. It is not disputed that when such a defense of nonnegotiability concerns the kind of negotiability issue that is otherwise processed under the section 7117(c) procedure, that defense can be resolved as part of the unfair labor practice case. /3/ Neither the Statute nor its legislative history suggests that Congress intended to make an exception in the federal sector to this principle when the defense of nonnegotiability involves the kind of negotiability issue that is otherwise processed under the section 7117(b) procedure. Section 7117(b)(1) of the Statute states, in part, that "(i)n any case of collective bargaining in which an exclusive representative alleges that no compelling need exists for any rule . . . which is then in effect and which governs any matter at issue in such collective bargaining, the Authority shall determine . . . whether such a compelling need exists." (Emphasis added.) The underscored language reveals that the section 7117(b) procedure is tailored to apply to situations where, during ongoing negotiations, an agency asserts that a proposal is nonnegotiable because it is inconsistent with an existing agency regulation for which there is a compelling need. This language of the Statute does not preclude the Authority from resolving any necessary negotiability issues, including those related to the compelling need for an agency regulation, in a unilateral change unfair labor practice case. An examination of the legislative history of the Statute supports the Authority's conclusion. Thus, the 1975 amendments to the pre-Statute labor-management relations program, Executive Order 11491, authorized precisely what the Authority's procedures, codified at 5 C.F.R. Sections 2423.5 and 2424.5, were promulgated to permit: unified processing of any compelling need negotiability issue in the unfair labor practice proceeding in which it arises. /4/ The enactment of the Statute in 1978 did not indicate a congressional intent to reject the continuation of this well-established practice. Rather, as the United States Court of Appeals for the District of Columbia Circuit found, Congress did not intend to change the existing practice of allowing all issues to be resolved in one proceeding. See Defense Logistics Agency v. FLRA, 754 F.2d 1003, 1008-1011 (D.C. Cir. 1985). In the Authority's view, there is substantial public policy benefit from unified processing of a "compelling need" allegation as part of the unfair labor practice case involving unilateral change, where such an allegation of nonnegotiability arises as an affirmative defense. This procedure effectuates Congress' goal to facilitate and promote the collective bargaining process by providing for the resolution of all relevant issues in one proceeding, thereby obviating the delay inherent in two separate and consecutive proceedings. Moreover, whether an agency's change is found to be nonnegotiable because there is a compelling need for the agency regulation or negotiable because there is no compelling need for the regulation which prompted the change, the agency is not improperly adversely affected. Even if the Authority determines that the purposes and policies of the Statute are best effectuated by an order rescinding a unilateral change over which there was a duty to bargain, such a result would only deprive the agency of the results of a unilateral change it should not have made without first bargaining. The D.C. Circuit has noted agreement with the Authority's practice of allowing negotiability issues -- including, as in the instant case, assertions of compelling need for agency regulations -- to be resolved in an unfair labor practice proceeding. It concluded a review of the Statute and its legislative history as well as the Authority's policy arguments by stating: . . . We think it is clear that the Authority's distinction between ongoing negotiations and unilateral changes reflects not only a permissible reading of the Statute, but also a reasonable one, in the truest sense -- namely, that the Authority had good reasons for reading the Statute in that way . . . We therefore hold that in ULP proceedings over alleged unilateral changes in employment conditions effected by agency-wide rule, the Authority may determine whether there was a compelling need for the rule, and thus whether the rule was negotiable without first having made such a determination pursuant to Section 7117(b). Defense Logistics Agency, et al., 754 F.2d at 1014. In sum, the Authority, consonant with the holding of the D.C. Circuit quoted above, reaffirms its finding that unified processing of a "compelling need" allegation as part of the unilateral change unfair labor practice case in which such an allegation of nonnegotiability arises as an affirmative defense is appropriate. The Authority in this case concludes that the Respondent has failed to sustain its burden of establishing a compelling need for the DOD and DA regulations in accordance with criteria in section 2424.11 of the Authority's Rules and Regulations (5 C.F.R. Section 2424.11 (1981)). As noted, the Respondent argues that there is a compelling need for the regulations because they are essential to meet its objective in curtailing operations, which was to conserve energy. However, the Respondent has failed to establish a nexus between its goal of conserving energy and the regulations in question. /5/ The record is barren of evidence which would demonstrate how the granting of administrative leave to unit employees, rather than annual leave, as the Union's proposal at issue here would require, in any way affects the Respondent's stated objective of conserving energy; operations would be curtailed to the same extent, and energy conserved to the same extent, whether the employees affected were on annual leave or administrative leave on the day in question. Therefore, the Respondent has failed to demonstrate how the regulations in question would be essential or even helpful to achieving the Agency's stated objective in curtailing operations. VI. Conclusion Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed, and thus affirms those rulings. The Authority has considered the Judge's Decision and the entire record in this case, and, contrary to the Judge, concludes that the Respondent violated section 7116(a)(1) and (5) of the Statute when it refused to bargain concerning the Union's proposal to grant employees administrative leave on the day after Thanksgiving, submitted in response to the Respondent's notice that operations would be curtailed on that date. Therefore, the Authority adopts the Judge's findings and conclusions only to the extent consistent with this decision. /6/ ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Aberdeen Proving Ground, Department of the Army shall: 1. Cease and desist from: (a) Failing or refusing to negotiate with the International Association of Machinists and Aerospace Workers, Local Lodge 2424, AFL-CIO, the exclusive representative of a unit of its employees, concerning the Union's proposal to grant administrative leave in lieu of forced annual leave for its unit employees in connection with the closure of the operations of the Aberdeen Proving Ground, Department of the Army, on November 27, 1981. (b) In any like or related manner interfering with, restraining or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Upon request, negotiate with the International Association of Machinists and Aerospace Workers, Local Lodge 2424, AFL-CIO, the exclusive representative of a unit of its employees, concerning the Union's proposal to grant administrative leave in lieu of forced annual leave for its unit employees in connection with the closure of the operations of the Aberdeen Proving Ground, Department of the Army, on November 27, 1981. (b) Post at its facility, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commander, Aberdeen Proving Ground, Department of the Army, or a designee, and shall be maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said Notices are not altered, defaced or covered by any other material. (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, 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. Issued, Washington, D.C., May 14, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY 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 WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT fail or refuse to negotiate with the International Association of Machinists and Aerospace Workers, Local Lodge 2424, AFL-CIO, the exclusive representative of a unit of our employees, concerning the Union's proposal to grant administrative leave in lieu of forced annual leave for unit employees in connection with the closure of the operations of the Aberdeen Proving Ground, Department of the Army, on November 27, 1981. 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, upon request, negotiate with the International Association of Machinists and Aerospace Workers, Local Lodge 2424, AFL-CIO, the exclusive representative of a unit of our employees, concerning the Union's proposal to grant administrative leave in lieu of forced annual leave for unit employees in connection with the closure of the operations of the Aberdeen Proving Ground, Department of the Army, on November 27, 1981. (Activity) Dated: By: (Signature) (Title) 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 its provisions, they may communicate directly with the Regional Director, Region III, Federal Labor Relations Authority, whose address is: 1111 18th Street, N.W., 7th Floor (P.O. Box 33758), Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8500. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 3-CA-20077 DEPARTMENT OF THE ARMY ABERDEEN PROVING GROUND Respondent and INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL LODGE 2424, AFL-CIO Charging Party Laura Rothenberg, Esquire For the Respondent Donna M DiTullio, Esquire For the General Counsel Before: WILLIAM B. DEVANEY Administrative Law Judge DECISION Statement of the Case This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. Section 7101, et seq. /7/, and the Final Rules and Regulations issued thereunder, 5 C.F.R. Section 2423.1, et seq., which concerns the alleged refusal to bargain in good faith on the Union's proposal that administrative leave be granted for the Friday following Thanksgiving Day in response to Respondent's decision to close Aberdeen Proving Ground on Friday, November 27, 1981, was initiated by a charge filed on October 27, 1981 (G.C. Exh. 1(a)) which alleged violation of Sections 16(a)(1), (2), (3), (5) and (8) of the Statute. The Complaint and Notice of Hearing issued on February 26, 1982 (G.C. Exh. (c)) and the Complaint alleged violation only of Sections 16(a)(1) and (5) of the Statute. Pursuant to the Notice of Hearing, a hearing was duly held on April 6, 1982, at Aberdeen Proving Ground, Maryland, before the undersigned. All parties were represented at the hearing, were afforded full opportunity to be heard, to examine and cross-examine witnesses to introduce evidence bearing on the issues involved, and were afforded opportunity to present oral argument, which right both parties waived. At the close of the hearing, May 6, 1982, was fixed as the date for mailing post-hearing briefs which time was subsequently extended, for good cause shown, to May 13, 1982. Counsel for each party timely mailed a helpful brief, received on, or before May 12, 1982, which have been carefully considered. Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings and conclusions: FINDINGS 1. Respondent, to conserve energy, on September 14, 1981, decided to close operations of the Aberdeen Proving Grounds on November 27, 28, and 29, 1981. As most employees work only Monday through Friday, as a practical matter, this meant that Aberdeen Proving Ground (hereinafter also referred to as "APG") would be closed on the Friday after Thanksgiving except for operation of utilities, security and essential activities. Mr. David R. Weppner, Labor Relations Specialist for Respondent, called all of the unions on September 14 and arranged a meeting for the following day, September 15. Mr. Weppner and his superior, Mr. Franklin M. Bradley, Chief of the Management Employee Relations Division, met with representatives of the various unions, including Messrs. Joseph McDeshen, Jr., President, and Harvey W. Mitchell, Vice President of the International Association of Machinists and Aerospace Workers, Local Lodge 2424, AFL-CIO, (hereinafter also referred to as IAM"), and informed the Unions that the decision had been made to curtail operations. Respondent advised the Unions that APG employees would be placed on "forced annual leave" (Tr. 58). There are various tenant activities housed at APG, such as the Chemical Systems Laboratory and the Ballistic Research Laboratory, which are not under the command or direction of APG, and the different assurances given by their commanders were discussed. Respondent stated that it was aware that because of the nature of their missions, experiments and tests in progress, that the policy of certain tenant activities might differ (Tr. 59-60), but that Respondent had concluded that APG's tests could be held in abeyance without impairment of its mission (Tr. 60). 2. Following the meeting of September 15, at which the Unions, including IAM, were informed of the decision to close APG on Friday, November 27, 1981, Colonel William E. Watts, Commander of APG, by letter dated September 23, 1981, advised Mr. McDeshen in writing, in part, as follows: "1. I have decided, after due consideration, to close Aberdeen Proving Ground on Friday, 27 November 1981. Only essential post services will continue to function. . . . "4. Specific details and clarification concerning the policy of leave for civilian and military personnel will be published shortly" (G.C. Exh. 2). 3. On October 2, 1981, Colonel Watts issued guidelines on how leave would be used for the Thanksgiving curtailment of activities (G.C. Exh. 3) which was distributed, inter alia, to the unions, including IAM. 4. A special meeting of Area Energy Resources Conservation Officers was held on October 6, 1981, to discuss leave procedures to be used for the period of the closure. IAM was represented by five individuals, including Messrs. McDeshen and Mitchell (Res. Exh. 2, Tr. 64). Colonel Robert P. Jones, who chaired the meeting, reviewed the October 2 letter (G.C. Exh. 3) and pointed out that: " . . . civilian employees will take annual leave if they have it accrued. If not, and leave can be accrued by the end of the year, they may be given advanced leave. If they have compensatory time, this can be taken. They may also elect to take leave without pay. If an employee has no annual leave, the individual will be allowed to work" (Res. Exh. 2; see, also, G.C. Exh. 3). One or more of the union representatives requested that administrative leave be granted and Mr. Weppner responded, in part, that " . . . administrative leave cannot be authorized. Administrative dismissal without charge to leave is only appropriate for unanticipated situations, or for brief periods of time" (Res. Exh. 2, Tr. 65). 5. After the Energy Resources meeting, Mr. Weppner on October 6, 1981, prepared a memorandum, signed by Mr. William J. Foland, Civilian Personnel Officer, addressed to the various Union Presidents, including IAM, which referred to the Letters of September 23 and October 2, and also attached an additional copy of the October 2 letter, which stated, in part, as follows: " . . . "2. This officially transmits Inclosure 1 (October 2, 1981, letter) . . . so that management can meet its obligation under Title VII of Public Law 95-454 to negotiate concerning the impact and implementation of this decision. . . . "4. To effect the post-wide curtailment of operations, all employees not required to work on Friday, 27 November 1981, the day after the Federal holiday, must be placed on annual leave. Because the closure is anticipated and entirely within the control of management, there is no basis to dismiss employees without charge to leave or loss of pay as could be done for an unforeseen event. . . . "6. Any union desiring to negotiate concerning impact and implementation of this decision is invited to do so . . . . " (Res. Exh. 1). 6. By letter dated October 6, 1981, IAM requested negotiations stating, in part, as follows: "We have received your decision to close on 27 November 1981. "We again request to negotiate the impact of your decision . . . . " (G.C. Exh. 4, Res. Exh. 3; Tr. 19). 7. Negotiations were held on October 19, 1981. Chief spokesman for Respondent was Mr. Weppner; and IAM was represented by its negotiating team consisting of Mr. McDeshen, Chief spokesman, Mr. Mitchell, Vice President, Mr. Arnold Hughes, Chief Steward, Mr. Bill Brooks, Mr. San Cannizzaro and Ms. Marvel Trusclair (Tr. 21, 72). Mr. Weppner outlined "where we were, why we were together" (Tr. 22, 72) and Mr. McDeshen "suggested to Mr. Weppner that in lieu of that, that all employees be put on administrative leave" (Tr. 22). Mr. Weppner responded that "the rules and regulations . . . do not permit him to do this and that it verges on nonnegotiability in his opinion" (Tr. 23). Mr. McDeshen then suggested that "if he would not buy my proposal of eight hours of administrative leave, then we would split it with him" by which he meant that "if management would grant four hours administrative leave that we would take, we being the employees, would take four hours annual (sic) leave, split the difference, four and four, four hours annual leave, four hours administrative leave" (Tr. 23). Mr. McDeshen testified that Mr. Weppner's response, " . . . was the same as the first, that it was not permitted by rules, laws and regulations and that it was out of the question and out of hand. Also, that it would create a holiday for both proposals . . . . . . "A. An extra holiday. The FPM's state something to that effect that you will not grant a date off to create another holiday" (Tr. 23-24). 8. Mr. Weppner had no recollection of any proposal by IAM for four hours administrative leave (Tr. 85-86). Mr. Weppner testified that after the IAM made its proposal for administrative leave (Tr. 72), which was not a new idea but had been discussed on October 6 and again on October 15 when Mr. Weppner met with Messrs. McDeshen and Mitchell (Tr. 45), and which he rejected for the same reasons he had previously stated (Tr. 74), IAM then made two further oral proposals. One that employees who had no annual leave be advanced leave; and the other was that those who had no annual leave at all be allowed to work; to which he had responded that that was what Respondent had proposed, namely "that people who had no leave as of the 27th of November would be advanced leave from a period to December . . . that anyone who had used their total leave accrual for the whole year . . . that we had at least 15 opportunities to work 15 persons . . . ." (Tr. 83. 9. Following a caucus, IAM presented a written proposal, prepared by Mr. Mitchell (Tr. 47), as follows: "To provide employees who desire to work be permitted to do so and that those who work be provided all the rights as per the negotiated agreement" (G.C. Exh. 5). Mr. Weppner testified that he caucused with his team and when they reconvened he rejected the IAM proposal because it was too broadly written, "we would have no idea how many people would show up, when they would go to work. I was concerned about safety of those who might be working along . . . about the buildings, which ones to open, which ones weren't going to be used . . . And I started to give these reasons to Mr. McDeshen and he said . . . The commander has made his decision. There is no sense in talking anymore. We are leaveing . . . I said I felt that was inappropriate. So the Union walked out . . . . " (Tr. 87). Mr. Weppner stated that he spoke further to Mr. McDeshen in the hallway and asked "Is there any need to get together this afternoon. He indicated no" (Tr. 88). After lunch Mr. Weppner called Mr. McDeshen and, again, Mr. McDeshen declined to come back on the afternoon" (Tr. 88). Finally, on the following day, October 20, Mr. Weppner called Mr. McDeshen and "again he felt that there would be no further need to get together . . . . " (Tr. 88). 10. Mr. McDeshen substantially agreed with Mr. Weppner but his emphasis was somewhat different. Thus, he testified, in part, as follows: "Q. What if anything was management's response to your written proposal? "A. Their response was they rejected it totally out of hand, unacceptable. "Q. Was a reason given? "A. The reason given was that if they permitted employees to work it would defeat the whole purpose of the post closure for saving energy. "Q. What if anything happened after management rejected the third proposal? "A. After they rejected that proposal, it was getting close to lunch time and I reminded Dave Weppner of the time. He asked me was there any sense in my opinion for us to reconvene after lunch at one o'clock. "Q. What did you respond? "A. I asked him if he would come off of his position of the letter of October 2 guidelines where (sic) that he would close, he was not permitting anyone to work. He said no, he cannot change that decision. The decision has been made. And therefore he can not change it. So I said, well, I see no sense in us reconvening after lunch. He says he agrees and we broke at that time off negotiations" (Tr. 26). Mr. McDeshen admitted that Mr. Weppner had said that if any employees had no leave, "they would find work for them somewhere and he said he was speaking of maybe 15 employees" (Tr. 42). 11. There is no dispute that at a negotiating session held on November 24, 1981, with respect to a similar closing of APG on December 24 and December 31, 1981, IAM refused to bargain about the November 27 closing of APG because "we had filed a ULP" (Tr. 41) and when asked if he would discuss the Thanksgiving closing at the November 24 meeting, Mr. McDeshen said, "No. I would not" (Tr. 41). Mr. Weppner testified that Mr. William Layman, IAM Grand Lodge Representative, who attended the November 24 meeting, had state "we refuse to negotiate because we have this unfair labor practice charge pending" (Tr. 98). 12. The December 24 and 31 closing of APG is not in issue; however, General Counsel does assert that Respondent agreed to IAM's October 19 written proposal (G.C. Exh. 5) in December. On November 4, 1981, Respondent issued notice of its decision to curtail operations on December 24 and 31, 1981 (Res. Exh 7) and the guidelines were substantially the same as those issued on October 2, 1981 (G.C. Exh. 3) for November 27, 1981 except as noted hereinafter; various proposals were submitted (G.C. Exhs. 7, 8, 9, and 10); but the ultimate agreement was as follows: "1. Liberal Leave Policy. "2. For those who work the terms of the agreement be upheld commensurate with the purpose of achieving energy savings." (G.C. Exh. 11). CONCLUSIONS There is no dispute that Respondent, on October 19, 1981, rejected IAM's proposal for administrative leave. Indeed, on October 6 Respondent had stated that under Army Regulations, etc., administrative leave could not be granted for the reason that closure of APG was an anticipated and planned closing. This was repeated at a meeting held on October 15 with Messrs. McDeshen and Mitchell at which time copies of various regulations and a Comptroller General's decision was given to them; and on October 19, 1981, Mr. Weppner once more stated that administrative leave could not be granted under Army Regulation CPR 990-2 (C14), 610.53 (Res. Exh. 6) and Department of Defense Regulation 1400.25-M, CPM 990-2, 610.3 (Res. Exh 4). CPR 990-2 provides, in part, as follows: "S3-2. Relieving Daily, Hourly, or Piecework Employees from Duty . . . "c. Where advance notice can be given. The Authority to excuse employees administratively is not to be used in instances where the period of interrupted or suspended operations can be anticipated sufficiently in advance to permit arranging for assignment to other work or the scheduling of annual leave. Nomally, where 24 hours' advance notice can be given, employees who cannot be assigned to other work must be placed on annual leave with or without their consent." (Res. Ex. 6). DOD Regulation 1400.25-M provides, in part, as follows: "S3-1 . . . "d. Limitation on Authority to Dismiss Employees Without Change to Leave . . . "(2) When, because of planned management reasons, the closing of all or part of an activity is required for short periods of time, employees will be notified no less than one full work shift in advance and will be required to take annual leave unless leave without pay is requested. "(3) Group dismissal authority will not be used to create a holiday. Obviously, Respondent's reliance on the DOD and DA regulations as the basis for its rejection of IAM's demand for administrative leave was in good faith; nevertheless, General Counsel asserts that because of the Authority's decision in Long Beach Naval Shipyard, Long Beach, California, 7 FLRA NO. 53 (December 16, 1981), Respondent was wrong, IAM's proposal was negotiable, and, as Respondent failed and refused to bargain on IAM's proposal, it violated Sections 16(a)(1) and (5) of the Statute. I have given careful consideration to the Authority's decision in Long Beach Naval Shipyard, supra, but, while it is certainly dispositive of the negotiability of IAM's proposal under the Federal Personnel Manual, upon which Respondent also relied (Res. Exh. 5), I find nothing therein that addresses the more specific provisions of the DOD or DA Regulations upon which Respondent principally relied. General Counsel's response to the DOD and DA Regulations was, simply, to ignore them. FPM Supplement 990-2 specifically provided: "(6) 'Supplemental regulation. Each department and agency is authorized to issue supplemental regulations not inconsistent with this subpart'" (S3-2 c. (6); Res. Exh. 5). Neither the DOD nor DA Regulations are inconsistent with the provisions of the FPM, cf., Defense Contract Administration Services Region, Boston, Massachusetts, et al., Case Nos. 1-CA-212, 1-CA-298, 1-CA-299, and 1-CA-300 (OALJ-81-024, December 22, 1980); Harry Diamond Laboratories, et al., Case Nos. 3-CA-719, 3-CA-889, and 3-CA-970 (OALJ-81-104, May 18, 1981). Certainly, the DOD Regulations were "agency" regulations within the meaning of Section 17(a)(2) and (3) of the Statute and the DA Regulations were issued by a "primary national subdivision of said agency" within the meaning of Section 17(a)(3) of the Statute; IAM is not the exclusive representative of the majority of employees of either the DOD or DA; and, pursuant to Section 17(a)(2), "matterw which are the subject of any agency rule or regulation referred to in paragraph (3) of this subsection" are subject to the duty to bargain "only if the Authority has determined under subsection (b) of this section that no compelling need . . . exists for the rule or regulation." The Authority has made no such determination that no compelling need exists for either the DOD or the DA Regulation, nor do I infer such a determination from the Authority's Long Beach Naval Shipyard, supra, negotiability decision. To the contrary, in the absence of any reference whatever by the Authority to DOD or Department of the Navy Regulations in its Long Beach Naval Shipyard decision, supra, I must assume that the question of agency regulation, if applicable to the closure there involved, was not raised. In the absence of a determination by the Authority, pursuant to Section 17(b) of the Statute, /8/ that no compelling need exists for the rule or regulation, Respondent was under no duty to bargain as to the grant of administrative leave for November 27, 1981, as the controlling DOD and DA Regulations specifically provided, inter alia that administrative leave for such period "is not to be used" for anticipated closures planned in advance. Respondent further asserts that IAM, in effect, "dropped" its demand for administrative leave when it presented its written proposal, which did not include it, nor did IAM thereafter renew its oral demand for administrative leave. IAM asserts it did not "drop" its demand for administrative leave. In view of my conclusion that Respondent was not, in any event, obligated to bargain on the matter of administrative leave, it is unnecessary to resolve this further assertion. Although not alleged in the Complaint, General Counsel further asserts that Respondent bargained in bad faith on October 19, 1981, by rejecting "a Union proposal which would have allowed a liberal leave policy" which it granted on December 16, 1981, as to the December 24 and 31, 1981, closure. For reasons set forth hereinafter, I do not agree. IAM's written proposal of October 19 was that: " . . . employees who desire to work be permitted to do so and that those who work be provided all the rights as per the negotiated agreement" (G.C. Ex. 5). The agreement of December 16, 1981, was: "1. Liberal Leave Policy "2. For those who work the terms of the agreement be upheld commensurate with the purpose of achieving energy savings" (G.C. Exh. 6). General Counsel uses the Phrase "Liberal Leave Policy" to mean something quite different than the words would indicate, namely, that Respondent would operate, i.e., APG would not be closed. Of course, there was no question that Respondent had proposed to grant leave liberally. If it were assumed that "liberal leave policy" meant that APG would be open, then IAM's October 19 proposal that "employees who desire to work be permitted to do so" may have implied the same meaning; but more significant is that Paragraphs 6 and 7 of Respondent's November 4, 1981, notice provided, in part, as follows: "6. I realize that some employees will desire to come to work rather than choose the leave/compensatory options avaialble to them as listed in paragraphs 4 and 5 above. Employees choosing to work will, in most cases, be required to work in minimally heated facilities. Installation-wide support is needed in curtailing operations furing this period . . . "7. Guidance previously disseminated in DF, STEP-CP-M, 2 October 1981, subject: Thanksgiving Day Holiday Period, regarding the curtailment of operations during that period remains as stated therein. Individual latitude regarding work during the Christmas period is being granted since sufficient time may not remain for some employees to accrue leave to cover absences during this time frame" (Res. Exh. 7). Consequently, Respondent's decision to curtail operations on December 24 and 31, 1981, was significantly different than its decision as to November 27, 1981, in that, because it recognized that some employees would be unable, in the time remaining in the leave year, to accrue leave to cover the December dates, Respondent proposed to grant "individual latitude regarding work during the Christmas period". Accordingly, there was no question that the bargaining which took place was foursquare within the bounds of impact and implementation of Respondent's curtailment decision. I have grave reservations that IAM's written proposal of October 19 was within Respondent's obligation to bargain on impact and implementation. That is, where management exercises a reserved right in deciding to close a facility, bargaining on impact and implementation does not extend to negating that decision. Nevertheless, I do not reach this question. Rather, I conclude that IAM terminated negotiations on October 19 without bargaining fully. In this regard, I fully credit the testimony of Mr. Weppner that when he started to give his reasons for rejecting IAM's proposal because it was too broadly written, "we would have no idea how many people would show up, where they would go to work. I was concerned about safety . . . about the buildings, which ones to open, which ones weren't going to be used . . . ", Mr. McDeshen said "there is no sense in talking anymore. We are leaving . . . I said I felt that was inappropriate. So the Union walked out . . ." (Tr. 87). There is no dispute that Respondent rejected IAM's written proposal; but from the testimony of Mr. Weppner, which is fully supported by the testimony of Ms. Marguerite Zealor, Labor Relations Specialist (Tr. 108), Mr. Kersey Alexander Jones, Jr., Material Testing Director (Tr. 113), and Mr. Thomas S. Swartz, Facilities Engineering Director (Tr. 117-119), members of Respondent's negotiating committee, the record does not show any refusal of Respondent to bargain on October 19. To the contrary the record shows that Respondent indicated it would still like to discuss impact (Tr. 119) and, although Respondent stated that it was unacceptable to have no control, the record does not show that Respondent in any way foreclosed consideration of IAM's proposal that employees be permitted to work. Indeed, the record shows that further negotiations were foreclosed only by IAM's precipitous termination of negotiations. If as might appear from Mr. McDeshen's testimony (Tr. 26) and from the testimony of Mr. Mitchell (Tr. 48), that IAM was, in fact, seeking to change the decision to close the APG on November 27, which was a reserved right of management, then Respondent's refusal to bargain would not, in any event, have violated Sections 16(a)(1)or (5) as Respondent was obligated to bargain only as to impact and implementation, i.e., as the Statute states, "procedures which management . . . will observe" or "appropriate arrangements for employees adversely affected by the exercise of any authority under this section . . . . " (Section 6(b)(2) and (3)), not the decision itself, Department of the Air Force, 47th Air Base Group, 4 FLRA NO. 65 (1980). Nor, of course, was either Mr. McDeshen or Mr. Mitchell correct that under Paragraph 4 of the October notice specifically provided, in part, as follows: "4. Even though their services are not required on 27 November 1981, the following employees must, at their discretion, be allowed to work or use leave without pay requested by SF 71: "a. Employees who have used all available leave (accrued and advanced) . . . ." (G.C. Exh. 3). The record is further clear that on October 19 Mr. Weppner had stated that "we had at least 15 opportunities to work 15 persons" (Tr. 83, see, also, Tr. 42). The record further shows, as Mr. Weppner testified, that IAM declined both on the afternoon of October 19 and on October 20, 1981, to negotiate further and, finally, on November 24, 1981, refused to negotiate concerning the November 27 closure because IAM "had filed a ULP. Therefore the issue was closed . . . . " (Tr. 41). Of course, IAM is not charged with a refusal to bargain at any time. The obligation to bargain is a continuing obligation and a charge that a refusal to bargain occurred on a prior occasion neither excused a subsequent refusal to bargain nor is its pendency a defence to an appropriate subsequent demand to bargain, cf. Kentucky National Guard, 4 FLRA NO. 73 (1980); but that is not the situation here. Nevertheless, Respondent, on November 24, 1981, invited further negotiations on the impact and implementation of the November 27, 1981, closure as part of the negotiations with respect to the December 24 and 31 closure, which IAM declined. Legally, a refusal to bargain on one occasion is not "cured" by an offer to bargain at a later date, Vandenberg AFB, 4392d Aerospace Support Group, Vandenberg AFB, California, A/SLMR No. 435, 4 A/SLMR 626 (1974) (Compare decision of the Administrative Law Judge, 4 A/SLMR at 633, and the decision of the Assistant Secretary, 4 A/SLMR at 627) although the Council, on appeal, held that where, as in Vandenberg, a brief interruption of negotiations has a de minimis effect a finding of a violation is not warranted, FLRC No. 74A-77, 3 FLRC 491 (1975), 5 A/SLMR No. 554, 5 A/SLMR 574 (1975). Had Respondent refused to bargain in good faith on October 19, 1981, it would not have been "cured" by Respondent's offer to bargain on November 24, 1981. I have found, however, that Respondent did not refuse to bargain in good faith on October 19, 1981, notwithstanding that Respondent rejected IAM's proposal as written, for the reason that IAM terminated negotiations without bargaining fully on matters of impact and implementation within the scope of Respondent's obligation to bargain, and, accordingly, Respondent's offer to bargain on November 24, 1981, with respect to the November 27, 1981, closing of APG reaffirmed Respondent's offer to continue negotiations made both on October 19 and 20 and, to this extent, shows that Respondent did not refuse to bargain as to the impact and implementation of its decision to close APG on November 27, 1981. Indeed, because IAM declined to negotiate the November 27 closure on November 24, it cannot be known whether negotiations as to the December 24 and 31 curtailment, which resulted in an agreement, would have affected the November 27 closure. Having found that Respondent did not violate Section 16(a)(5) or (1) of the Statute, as alleged in the Complaint, by refusing to negotiate on the grant of administrative leave for November 27, 1981, as the grant of administrative leave was precluded by controlling DOD and DA Regulations, and that Respondent did not otherwise fail or refuse to bargain in good faith on the impact and implementation of its decision to close APG on November 27, 1981, it is recommended that the Authority adopt the following: ORDER The Complaint in Case No. 3-CA-20077 be, and the same is hereby, dismissed. /s/ WILLIAM B. DEVANEY Administrative Law Judge Dated: June 15, 1982 Washington, D.C. --------------- FOOTNOTES$ --------------- (1) The court remanded the matter to the Authority for the sole purpose of permitting the petitioners to present evidence as to whether or not there existed a compelling need for the particular regulation at issue. On April 22, 1985, the Authority remanded the proceeding to the Chief Administrative Law Judge for disposition consistent with the direction of the court. Thereafter, on March 31, 1986, the complaint was withdrawn. In the instant case, by contrast, as the Respondent asserts that compelling need was established at the hearing as well as that compelling need msut be determined in a separate proceeding, the Authority concludes that the Respondent was permitted to present evidence as to whether or not there existed a compelling need for the regulations at issue. (2) The Authority notes that the United States Court of Appeals for the Fourth Circuit recently reversed an Authority decision on this same issue, U.S. Army Engineer Center and Fort Belvoir, 13 FLRA 707 (1984), reversed sub nom. United States Army Engineer Center v. FLRA, 762 F.2d 409 (4th Cir. 1985), rehearing denied (July 26, 1985). In the Authority's Supplemental Decision and Order in that case, U.S. Army Engineer Center and Fort Belvoir, 19 FLRA NO. 92 (1985), the Authority stated it "accepts the CourtS opinion as the law of the case and, consistent with that opinion, shall order that the complaint in Case No. 3-CA-20133 be dismissed." Slip op. at 2. (3) Indeed, the Authority often has made negotiability determinations in unfair labor practice proceedings where necessary to resolve the allegations that unlawful unilateral changes in working conditions were made in violation of the duty to bargain in good faith. See, e.g., Department of Transportation, 19 FLRA NO. 1 (1985), petition for review filed sub nom. American Federation of Government Employees, Local 2747 v. FLRA, No. 85-1561 (D.C. Cir. September 9, 1985); Immigration and Naturalization Service, Eastern Regional Office (Burlington, Vermont), 18 FLRA No. 103 (1985); Department of Health and Human Services, Social Security Administration, 10 FLRA 77 (1982); Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 8 FLRA 740 (1982), enforced sub nom. FLRA v. United States Dept. of the Air Force, 735 F.2d 1513 (D.C. Cir. 1984). (4) See the 1975 "Report and Recommendations of the Federal Labor Relations Council on the Amendment of Executive Order 11491, as Amended," reprinted in Subcom. on Postal Personnel and Modernization of the Comm. on Post Office and Civil Service, 96th Cong. 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, at 1304-1311, 1312-1314, 1323-1326. (5) Compare National Association of Government Employees, Local R14-62 and U.S. Army Dugway Proving Ground, Dugway, Utah, 18 FLRA NO. 38 (1985), Petition for review filed sub nom. National Association of Government Employees, Local R14-62 v. FLRA, No. 85-2098 (10th Cir. July 23, 1985), and National Association of Government Employees, Local R14-9 and U.S. Army Dugway Proving Ground, Dugway, Utah, 18 FLRA NO. 45 (1985), where the Authority found nonnegotiaboe a union proposal requiring that employees be placed on administrative leave without charge to annual leave during a partial closing. In those cases, unlike here, the agency demonstrated that its regulations prohibiting administrative leave during a partial closing were critical components of the agency's objective of saving money by curtailing operations so as to ensure the agency's performance of its mission in an effective and efficient manner. (6) The General Counsel excepted to certain credibility findings made by the Judge. The demeanor of the witnesses is a factor of consequence in resolving issues of credibility, and the Judge has had the advantage of observing the witnesses while they testified. The Authority will not overrule a Judge's resolution with respect to credibility unless a clear preponderance of all relevant evidence demonstrates that such resolution is incorrect. The Authority has examined the record carefully, and finds no basis for reversing the JudgeS credibility findings. (7) For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the Statute reference, e.g., Section 7116(a)(5) will be referred to, simply, as "16(a)(5)". (8) Boston District Recruiting Command, Boston, Massachusetts, Case No. 1-CA-206, et al., OALJ-81-023 (December 22, 1980); Defense Logistics Agency (Cameron Station, Virginia), et al., Case No. 1-CA-213, OALJ-81-131 (July 7, 1981); Headquarters, Defense Logistics Agency, et al., Case No. 3-CA-664, et al., Case No. 3-CA-719, et al., OALJ-81-104 (May 18, 1981).