[ v21 p957 ]
The decision of the Authority follows:
21 FLRA No. 112 U.S. AIR FORCE, WASHINGTON, D.C. AND U.S. AIR FORCE, ELECTRONIC SYSTEMS DIVISION, HANSCOM AIR FORCE BASE BEDFORD, MASSACHUSETTS Respondents and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-8 Charging Party Case No. 1-CA-853 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority on exceptions to the attached Decision of the Administrative Law Judge filed by the General Counsel. The complaint alleged that Respondent U.S. Air Force (USAF) and Respondent U.S. Air Force, Electronic Systems Division, Hanscom Air Force Base (the Activity) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain in good faith with the National Association of Government Employees, Local R1-8 (NAGE), concerning a change in the Air Force regulation governing the standard of negligence to be used in assessing liability against unit employees for the loss, damage or destruction of Government property, and by unilaterally changing existing conditions of employment of employees in the bargaining unit by implementing the new regulation governing the standard of negligence without first bargaining with NAGE. The issue before the Authority is whether the Judge properly dismissed the complaint. II. Background Facts Prior to April 1981, Air Force Regulations (AFR 177-111) provided that civilian employees' liability for the loss, damage or destruction of Government property required a finding of gross negligence. In April, representatives of Respondent U.S. Air Force, Electronic Systems Division, Hanscom Air Force Base, the Activity, informed NAGE and other labor organizations at Hanscom Air Force Base that the Activity was going to implement a new AFR 177-111 which would change the existing standard of care so that employees would be liable for loss or damage to government property on the basis of their simple negligence. NAGE requested bargaining over the substance of the change, essentially proposing that the existing standard of care be retained, and over the procedures for implementation of the change and appropriate arrangements for adversely affected employees. The date for implementing the revised regulation was postponed while the Activity and NAGE exchanged proposals and negotiated concerning procedures and appropriate arrangements. However, the Acitivity's representative refused to negotiate concerning the substance of the change on the basis that it had no local authority to negotiate concerning the change in the standard of care. The Activity took this position based upon telephonic advice which it had received from Respondent USAF. NAGE continued to request negotiations concerning the substance of the change in the regulatory standard of care and the Activity continued to reject the request. Revised AFR 177-111, incorporating the change in the standard of care, was implemented by the Activity on July 6, 1981. III. The Judge's Decision The Judge dismissed the complaint on the basis that, Respondents had no duty to bargain on the subject matter of an agency regulation unless the Authority determined that no compelling need exists for the regulation and that such a determination cannot be made in the context of an unfair labor practice proceeding. Accordingly, the Judge concluded that neither Respondent had violated section 7116(a)(1) and (5) of the Statute. IV. Positions of the Parties The General Counsel excepted to the Judge's dismissal of the complaint. Essentially the General Counsel argued that the Judge erred as a matter of law in concluding that where the alleged unilateral change involves a regulation covered by section 7117(a)(2) of the Statute, the Union must first seek a determination by the Authority concerning whether or not there is a "compelling need" for the regulation before it could pursue an unfair labor practice over the Respondents' refusal to engage in local negotiations concerning the implementation of its national regulation. The General Counsel argued that the issue of compelling need could be initially addressed in an unfair labor practice proceeding; that the Respondents had the burden of establishing compelling need; that they had failed to do so; and that their conduct therefore constituted a violation of section 7116(a)(1) and (5) of the Statute. The Respondents' brief in opposition to the exceptions of the General Counsel essentially argued that the Judge was correct in concluding that the Authority's negotiability procedures for determining "compelling need" must be utilized before any unfair labor practice could be found. V. Analysis The Authority adopts the Judge's conclusion that the complaint must be dismissed but not for the reasons stated by the Judge. Subsequent to the issuance of the Judge's Decision in this case, the Authority issued its decision in Defense Logistics Agency (Cameron Station, Virginia) et al., 12 FLRA 412 (1983), affirmed sub nom. Defense Logistics Agency, et al. v. FLRA, 754 F.2d 1003 (D.C. Cir. 1985), /1/ finding that questions concerning the existence of a compelling need for agency regulations may appropriately be decided in an unfair labor practice proceeding, and that management is required to come forward with affirmative support for its assertion that there is a compelling need for the regulation in question which justified its refusal to bargain. See also Aberdeen Proving Ground, Department of the Army, 21 FLRA No. 100 (1986) and Department of Defense Dependents Schools, Mediterranean Region (Madrid, Spain); and Zaragoza High School (Zaragoza, Spain), 19 FLRA No. 54 (1985). But see United States Army Engineer Center v. FLRA 762 F.2d 409 (4th Cir. 1985), reversing the Authority's decision in U.S. Army Engineer Center and Fort Belvoir, 13 FLRA 707 (1984). Thus the Authority does not adopt the Judge's rationale for dismissing the complaint. However, the Authority concludes that the Activity did not violate section 7116(a)(1) and (5) of the Statute by issuing its revised regulation without bargaining over the substance of such change because the subject over which the Activity refused to bargain was NAGE's proposal to change the standard of care for lost, damaged or destroyed Government property upon which to base employee liability. Thus, the new Air Force regulation established a standard of simple negligence for the imposition of liability while the Union's proposal sought to establish a standard of "proven, willful, wanton, or reckless conduct directly attributed to the actions of the employee." Proposals such as this have been determined to be nonnegotiable. The Authority has found that union proposals which seek to limit the amount of money an employee may be required to pay for lost or damaged property, or proposals which seek to establish the standard to be used in determining whether an employee will be held pecuniarily liable for the loss, damage, or destruction of government property, directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. American Federation of Government Employees, AFL-CIO, Council 214 and Department of the Air Force, Headquarters Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 21 FLRA No. 34 (1986) and National Federation of Federal Employees, Local 29 and Department of the Army, Kansas City District, U.S. Army Corps of Engineers, Kansas City Missouri, 21 FLRA No. 32 (1986). Therefore, NAGE's proposal was outside the duty to bargain and the Activity's refusal to negotiate over the proposal did not violate section 7116(a)(1) and (5) of the Statute. The Authority also concludes, based on the facts set forth above, that the Respondent USAF did not refuse to bargain nor did it cause the Activity improperly to do so. 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, finds that no prejudicial error was committed, and thus affirms those rulings. The Authority has considered the Judge's Decision, the positions of the parties and the entire record, and adopts the Judge's findings and conclusions only to the extent consistent with this decision. For the reasons set forth above, the Authority therefore concludes that the complaint must be dismissed. ORDER IT IS ORDERED that the complaint in Case No. 1-CA-853, be, and it hereby is, dismissed. Issued, Washington, D.C., May 22, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 1-CA-853 U.S. AIR FORCE, WASHINGTON, D.C. and U.S. AIR FORCE, ELECTRONIC SYSTEMS DIVISION HANSCOM AIR FORCE BASE (BEDFORD, MASSACHUSETTS) Respondent and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-8 Charging Party James A. Harper, Esq. For Respondents Gerard M. Green, Esq. For General Counsel, FLRA Before: SAMUEL A. CHAITOVITZ Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101 et seq., 92 Stat. 1191 (hereinafter referred to as the Statute), and the Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5 C.F.R. XIV, Section 2410 et seq. A charge was filed on July 29, 1981 and was amended on August 5, 1981 by National Association of Government Employees, Local R1-8 (hereinafter called the Union and/or NAGE), against United States Air Force and U.S. Air Force Electronic Systems Division, Hanscom Air Force Base, MA (hereinafter referred to as Respondents). Pursuant to the above described charge and amended charge the General Counsel of the FLRA, by the Director of Region 1, issued a Complaint and Notice of Hearing on October 9, 1981 alleging that Respondents violated Sections 7116(a)(1) and (5) of the Statute by unilaterally changing the standard of negligence to be used in assessing employee liability for damage to Government property. Respondents filed an Answer denying that the Statute had been violated. A hearing in this matter was conducted before the undersigned in Boston, Massachusetts. The Respondents and Counsel for the FLRA were represented and afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence and to argue orally. Post hearing briefs were filed and have been fully considered. Based upon the entire record in this matter, my observation of the witnesses and their demeanor, and from my evaluation of the evidence, I make the following: Findings of Fact At all times material herein NAGE has been the collective bargaining representative for a unit composed of all of Respondent's non-supervisory and non-professional General Schedule employees serviced by the U.S. Air Force Electronic Systems Division Central Personnel Office At Hanscom Air Force Base. The unit contains approximately 1,400 employees. Since at least 1978 until April 22, 1981 Air Force Regulations (AFR 177-111) provided that civilian employees' liability for the loss, damage or destruction of Government property was based upon a finding of gross negligence. On April 22, 1981 representatives of the U.S. Air Force Electronics Systems Division at Hanscom Air Force Base informed NAGE President Norman Downes and representatives of other labor organizations representing employees at the Hanscom Air Force Base, that the Hanscom Air Force Base would implement on May 1, 1981 a new AFR 177-111 which inter alia, changed the existing standard of care for lost, damaged, or destroyed Government property upon which to base employee liability, to simple negligence /2/ from gross negligence. The Hanscom Air Force Base representatives provided Downes with a copy of revised AFR 177-111. Downes requested that representatives of U.S. Air Force Electronic Systems Division at the Hanscom Air Force Base negotiate with NAGE concerning the decision to change the standard of care. There was no response to Downe's request. On April 22 Downes wrote a letter to Denis Pelley, Chief of the Labor Relations Office of Hanscom Air Force Base, in which Downes requested to negotiate concerning the change in the proposed AFR. The date for implementing revised AFR 177-111, was postponed while the parties exchanged proposals and negotiated the impact and implementation of the change. /3/ During June 1981, Respondents' representative, Captain Gruenwald, of the Judge Avocate General's Office, advised NAGE that Hanscom Air Force Base had no local authority to negotiate concerning the substance of the change in AFR 177-111. Pelley and Mr. Kennedy, of the Hanscom Air Force Base Labor Relations Office, also advised NAGE that Hanscom Air Force base could not bargain with NAGE concerning the substance of the change in AFR 177-111; that this matter could not be negotiated at this local level. Pelley took this position after he was telephonically advised to do so in June 1981, by Chester Nelson, Chief of Staffing and Labor Relations, Headquarters, U.S. Air Force Systems Command, Andrews Air Force Base. By memorandum dated June 29, 1981 Pelley advised Downes that the revised AFR 177-111 would be implemented on July 6, 1981. By letter dated June 30, 1981 Downes submitted to Gruenwald a written proposal concerning AFR 177-111 and the standard of care. By letter dated July 2 from Downes to Pelley, Downes reiterated his request to negotiate concerning the change in the standard of care. The revised AFR 177-111, incorporating the change in the standard of care, was implemented on July 6, 1981. Downes wrote a letter dated July 10 to Pelley reiterating his request to negotiate with respect to the standard of care. By letter dated July 14, 1981 from Colonel Thomas O. Duff, Commander of Hanscom Air Force Base, to Downes, Duff rejected Downes' request to bargain concerning the standard of care because "Management's obligation to bargain with you does not extend to the first proposal . . . as it would change the substance of an Air Force Regulation, specifically Chapter 1, Property Accountable-General, Paragraph 10005F, Principles of AFR 177-111 (Test) . . . " NAGE was never given any reason for Hanscom Air Force Base's refusal to bargain about the change in the standard of care other than that it involved a change in an Air Force regulation and that the local activity lacked authority to negotiate about the substance of the change. Discussion and Conclusions Section 7117 of the Statute provides: "(a)(1) Subject to paragraph (2) of this subsection, the duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation. (2) The duty to bargain in good faith shall, to the extent not inconsistent with Federal Law or any Government-wide rule or regulation, extend to matters which are the subject of any agency rule or regulation referred to in paragraph (3) of this subsection only if the Authority has determined under subsection (b) of this section that no compelling need (as determined under regulations prescribed by the Authority) exists for the rule or regulation. (3) Paragraph (2) of the subsection applies to any rule or regulation issued by any agency or issued by any primary national subdivision of such agency, unless an exclusive representative represents an appropriate unit including not less than a majority of the employees in the issuing agency or primary national subdivision, as the case may be, to whom the rule or regulation is applicable. (b)(1) In any case of collective bargaining in which an exclusive representative alleges that no compelling need exists for any rule or regulation referred to in subsection (a)(3) of this section which is then in effect and which governs any matter at issue in such collective bargaining, the Authority shall determine under paragraph (2) of this subsection, in accordance with regulations prescribed by the Authority, whether such a compelling need exists. (2) For the purpose of this section, a compelling need shall be determined not to exist for any rule or regulation only if - (A) the agency, or primary national subdivision, as the case may be, which issued the rule or regulation informs the Authority in writing that a compelling need for the rule or regulation does not exist; or (B) the Authority determines that a compelling need for a rule or regulation does not exist. (3) A hearing may be held, in the discretion of the Authority, before a determination is made under this subsection. If a hearing is held, it shall be expedited to the extent practicable and shall not include the General Counsel as a party. (4) The agency, or primary national subdivision, as the case may be, which issued the rule or regulation shall be a necessary party at any hearing under this subsection. (c)(1) Except in any case to which subsection (b) of this section applies, if an agency involved in collective bargaining with an exclusive representative alleges that the duty to bargain in good faith does not extend to any matter, the exclusive representative may appeal the allegation to the Authority in accordance with the provisions of this subsection." Section 7117(a)(2) of the Statute provides that the duty to bargain extends to matters which are the subject of an agency regulation only if the FLRA has determined that no compelling need exists for the regulation. The subject case deals with a matter, standard of care, which is the subject of an agency regulation, or more accurately a regulation issued by an agency or primary subdivision as described in Section 7117(a)(3) of the Statute. Pursuant to Section 7117(a)(2) of the Statute Respondents have no duty to bargain concerning standard of care until the FLRA has first determined that no compelling need exists for AFR 177-111. Thus, it is necessary that the FLRA make a finding that there is no compelling need for AFR 177-111 before a finding can be made that Respondents have an obligation to bargain about the standard of care set forth in revised AFR 177-111. Because NAGE did not first pursue the procedures provided for presenting the compelling need issue to the FLRA, I am unable to conclude that Respondent violated Sections 7116(a)(1) and (5) of the Statute by refusing to bargain with NAGE concerning the change in the standard of care. I adopt the reasoning and conclusions set forth by the Administrative Law Judges in Boston District Recruiting Command, 1-CA-206, OALJ-81-023 (1980); Defense Logistics Agency, et al, 1-CA-213, OALJ-81-131 (1981); Headquarters, Defense Logistics Agency, 3-CA-664, OALJ-81-133 (1981); and Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 5-CA-20018, OALJ-83-06 (1982). Accordingly, although certain other unilateral changes might be pursued by either the unfair labor practice procedures or the negotiability procedures, where the alleged unilateral change involves a regulation covered by Section 7117(a)(2) of the Statute, the "compelling need" procedures must be utilized before any unfair labor practice can be found. In view of the foregoing, I conclude that the record fails to establish that Respondents violated Sections 7116(a)(1) and (5) of the Statute. Accordingly, it is recommended that the FLRA issue the following: ORDER The Complaint in Case No. 1-CA-853 is hereby dismissed. /s/ SAMUEL A. CHAITOVITZ Administrative Law Judge Dated: October 22, 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 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. (2) The revised provision of Chapter 1, Section 100, paragraph 10005(F) of AFR 177-111 provided: "When property is lost, damaged, or destroyed, pecuniary charges will be based on a standard of simple negligence, willful misconduct, or deliberate unauthorized use, and will be assessed as required by statute." (3) There is no allegation that there was a refusal to bargain about the impact and implementation of the change.