[ v22 p171 ]
The decision of the Authority follows:
22 FLRA No. 18 Case Nos. 7-CA-30459 7-CA-30584 UNITED STATES AIR FORCE LOWRY AIR FORCE BASE DENVER, COLORADO Respondent and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1497 Charging Party Case No. 7-CA-30543 UNITED STATES AIR FORCE LOWRY AIR FORCE BASE DENVER, COLORADO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1974 Charging Party DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached Decision of the Administrative Law Judge. The Respondent filed an opposition to the General Counsel's exceptions. The consolidated complaint in this case alleged a violation of section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) (1) on June 15, 1983 when the Respondent issued a memorandum setting forth a new seat belt policy; (2) on July 1, 1983 when the Respondent issued a memorandum changing the delegation of authority to suspend employee driving privileges; and (3) on September 26, 1983 when the Respondent implemented certain procedures concerning the new seat belt policy. II. Facts The facts are fully set forth in the Judge's Decision. Briefly stated, the essential facts giving rise to the consolidated complaint are as follows: The Respondent notified the Charging Parties (Unions) on June 10, 1983, that beginning on June 15, employees who failed to wear available seat belts while driving privately owned vehicles (POVs) on Lowry Air Force Base would receive a 30-day suspension of driving privileges and that the driver of any POV would be subject to a 30-day suspension of driving privileges if any passenger failed to wear a seat belt. Prior to this announced change, employees who failed to wear seat belts did not receive mandatory suspensions until the third infraction. On June 14, the Unions submitted requests to the Respondent to negotiate as soon as possible but no later than June 21, 1983. Negotiations commenced on June 21, and also took place on June 28 and several days in July and September. The record reveals that implementation of the new seat belt policy was delayed insofar as bargaining unit employees were concerned until after negotiations were completed. Once negotiations began, the Respondent issued a memorandum on July 1, announcing that senior officers in each of Respondent's commands had been granted the authority to suspend employee driving privileges. Prior to this change, the authority to suspend seat belt violators was at the Base Commander or Deputy Commander level. The parties failed to reach agreement during the June and July negotiations with Respondent declaring certain of the Unions' proposals to be nonnegotiable. They later sought help from the Federal Mediation and Conciliation Service (FMCS). Thereafter, the parties entered into negotiations with the assistance of FMCS in September 1983. The parties agreed on a number of matters on September 15, 1983, but some issues remained unresolved. Thereafter, on September 20, the Respondent notified the Unions that it would implement its last best offer concerning the seat belt policy on September 26, 1983. III. Judge's Decision The Judge concluded, in Case No. 7-CA-30459, that the Respondent had not failed to meet its statutory bargaining obligation prior to June 15, 1983, but rather that evidence established a waiver by the Union of the right to bargain prior to June 15. The Judge further concluded that the new seat belt policy was not applied to bargaining unit employees on June 15, 1983, but was deferred pursuant to agreement of the parties. As to the July 1 change in delegation of authority to suspend driving privileges, the Judge concluded that the Respondent had deferred implementation of the new seat belt policy and there was no evidentiary basis for finding that Respondent implemented the July 1 delegation as alleged in the complaint. The Judge concluded in Case Nos. 7-CA-30584 and 7-CA-30543 that the Respondent did not act unlawfully when it implemented the new seat belt policy on September 26. In this regard the Judge found that Respondent had bargained to impasse on all issues relating to the September 26 implementation of the policy and that the Unions did not request Panel assistance until after Respondent had served notice and implemented its last best offer. In view of the above, the Judge recommended that the consolidated complaint be dismissed in its entirety. IV. Positions of the Parties The General Counsel filed a number of exceptions to the Judge's findings and conclusions. In particular the General Counsel disputed the factual determinations that Respondent did not implement the new seat belt policies on June 15, 1983, and did not implement delegation of the suspension/appeal authority for seat belt violations on July 1, 1983, and that bargaining unit employees suffered no adverse impact from the July 1 change. Additionally, the General Counsel excepted to the conlcusion that NFFE waived its right to pre-implementation bargaining over the June 15 seat belt policy; that Respondent bargained in good faith to impasse before implementing the new seat belt policies on September 26, 1983; and that the policies implemented on September 26, 1983 were Respondent's last best offers. In its opposition to the General Counsel's exceptions the Respondent argued that no evidence supported the General Counsel's theory that Respondent implemented the new seat belt policies on June 15, 1983; that record evidence supported the conclusion that Respondent did not implement the delegation of the suspension/appeal authority for seat belt violations on July 1, 1983; and that there was no evidence of adverse impact on bargaining unit employees based on the July 1 change. Further, the Respondent argued that the Judge correctly determined that NFFE waived its right to pre-implementation bargaining; that Respondent bargained in good faith to impasse before implementing the new seat belt policies; and that the Respondent acted in good faith in implementing the change in seat belt policy on September 26, 1983. V. Analysis In concluding that the Respondent did not violate section 7116(a)(1) and (5) of the Statute, the Authority finds, in agreement with the Judge, that the parties engaged in good faith negotiations concerning the change in the seat belt policy. The record establishes that the Respondent notified the Unions that it was going to implement a change in the seat belt policy on June 15, 1983. Thereafter, the Unions requested negotiations and bargained on all negotiable aspects of the change. Although bargaining did not take place until after June 15, the record is clear that the new policy was not put into effect for unit employees until after the completion of negotiations. /*/ Furthermore, the Authority finds that the proposals over which the Respondent refused to bargain prior to implementing its change in seat belt policy were nonnegotiable as the Respondent contended. Three of the Unions' proposals would restrict the disciplinary actions which agency management could take and would limit management's right to discipline employees within the meaning of section 7106(a)(2)(A) of the Statute. See American Federation of Government Employees, AFL-CIO, Local 2302 and U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, 19 FLRA No. 95 (1985) (union proposal 1). The Authority finds that another proposal dealing with appeals of suspensions by non-bargaining unit employees is also outside the duty to bargain, as it is well established that the duty to bargain does not extend to matters concerning positions and employees outside the bargaining unit. International Federation of Professional and Technical Engineers, AFL-CIO, NASA Headquarters Professional Association and National Aeronautics and Space Administration, Headquarters, Washington, D.C., 8 FLRA 212 (1982), and cases cited at note 5 of that decision. Finally, the Authority finds that the Unions' proposal dealing with paying employees for the time it takes them to transit between the Activity entrance and their actual job site at the start and end of the work day is nonnegotiable. This proposal would result in management being precluded from assigning duties during those portions of the work day during which employees were in transit between the Activity and the job site. Thus, the proposal would violate management's right to assign work under section 7106(a)(2)(B) of the Statute. National Association of Government Employees, Local R-12-33 and National Association of Federal Employees, Local 1374 and Pacific Missile Test Center, Point Mugu, California, 14 FLRA 275 (1984). Thus the Authority finds that the Respondent complied with its duty to negotiate and negotiated in good faith with regard to all proposals submitted by the Unions which were within its duty to bargain. 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 exceptions to that Decision, the positions of the parties and the entire record, and adopts the Judge's findings, conclusions and recommended Order except as noted in the footnote. We therefore conclude that Respondent did not violate section 7116(a)(1) and (5) of the Statute by refusing to bargain over changes in the Respondent's seat belt policy. Rather the Authority finds that the parties engaged in good faith negotiations with regard to all negotiable proposals concerning the change in the seat belt policy. Accordingly the complaint shall be dismissed in its entirety. ORDER IT IS ORDERED that the consolidated complaint in Case Nos. 7-CA-30459, 7-CA-30584 and 7-CA-30543 be, and it hereby is, dismissed. Issued, Washington, D.C., June 18, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case Nos. 7-CA-30459 and 7-CA-30584 UNITED STATES AIR FORCE LOWRY AIR FORCE BASE DENVER, COLORADO Respondent and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1497 Charging Party Case No. 7-CA-30543 UNITED STATES AIR FORCE LOWRY AIR FORCE BASE, DENVER, COLORADO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1974 Charging Party Lt. Col. Wade B. Morrison, USAF For the Respondent Joseph Swerdzewski, Esquire Daniel Minahan, Esquire For the General Counsel Ms. Joyce Coxson For the National Federation of Federal Employees, Local 1497 Mr. Daniel Case For the American Federation of Government Employees, AFL-CIO, Local 1974 Before: LOUIS SCALZO Administrative Law Judge DECISION Statement of the Case These cases arose as unfair labor practice proceedings under the provisions of the Federal Service Labor-Management Relations Statute, 92 Stat. 1191, 5 U.S.C. section 7101, et seq. (hereinafter referred to as "the Statute"), and the Rules and Regulations issued thereunder. The consolidated complaint, as amended at the hearing, alleged that Lowry Air Force Base (Respondent or LAFB) committed the following unfair labor practices within the purview of the Statute: Case No. 7-CA-30459 On or about June 15, 1983, the Respondent violated Sections 7116(a)(1) and (5) of the Statute by issuing to all personnel at LAFB, a memorandum announcing that failure to wear available seat belts in privately owned vehicles (POVs) operated on LAFB would result in a 30 day suspension of driving privileges, and that the driver of any POV would be subject to a 30 day suspension of driving privileges if any passenger failed to wear seat belts. On or about July 1, 1983, the Respondent violated Sections 7116(a)(1) and (5) of the Statute by issuing to all units and activities a memorandum announcing that senior officers in each of Respondent's commands had been granted the authority to suspend employee driving privileges. It was alleged that the June 15, 1983 and July 1, 1983 memorandums constituted unilateral changes in conditions of employment of bargaining unit employees represented by the National Federation of Federal Employees (NFFE) Local 1497; a failure to provide NFFE Local 1497 notice of such change; a failure to bargain in good faith; /1/ and interference, restraint and coercion of such employees in the exercise of rights guaranteed by the Statute. Case No. 7-CA-30584 On or about September 26, 1983, the Respondent violated Sections 7116(a)(1) and (5) of the Statute by implementing certain procedures and arrangements concerning the enforcement of policy requiring drivers and passengers to wear seat belts in POVs operated on LAFB. It was alleged that the September 26, 1983 implementation constituted unilateral changes in conditions of employment of bargaining unit employees represented by NFFE Local 1497, and interference, restraint and coercion of such employees in the exercise of rights guaranteed by the Statute. Case No. 7-CA-30543 On or about September 26, 1983, the Respondent violated Sections 7116(a)(1) and (5) of the Statute by implementing certain procedures and arrangements concerning the enforcement of policy requiring drivers and passengers to wear seat belts in POVs operated on LAFB. It was alleged that the September 26, 1983, implementation constituted unilateral changes in conditions of employment of bargaining unit employees represented by the American Federation of Government Employees, AFL-CIO (AFGE), Local 1974, and interference, restraint and coercion of such employees in the exercise of rights guaranteed by the Statute. /2/ The parties were represented by counsel during the hearing and were afforded full opportunity to be heard, adduce relevant evidence, and examine and cross-examine witnesses. Based upon the entire record herein, including exhibits, and other relevant evidence adduced at the hearing, /3/ and briefs filed by counsel representing the Respondent and General Counsel, I make the following findings of fact, conclusions and recommendations. Findings of Fact Notice of Changes Relating to Seat Belt Policy By memorandum dated June 10, 1983, Darvin H. Koehler, Respondent's Civilian Personnel Officer, advised Joyce Coxson, President of NFFE, Local 1497, that on June 15, 1983, the Respondent intended to begin strict enforcement of Air Force regulations relating to seat belt use in POVs operated on LAFB by military personnel, dependents and civilian personnel (Tr. 57; G.C. Exh. No. 10). Although dated June 10, 1983, the memorandum was personally delivered to Ms. Coxson on June 9, 1983 (Tr. 57-58). /4/ It announced that the new policy would involve a 30 day suspension of LAFB driving privileges for a first offense; that vehicle drivers would be subject to the 30 day suspension rule for a first offense if any passenger in a vehicle failed to wear a seat belt; and that suspended drivers would be allowed to drive their cars on LAFB only to the extent of parking their cars in a designated parking area situated near a LAFB entrance gate. Department of Air Force Regulation 127-7, dated June 3, 1980 required the wearing of seat belts. The following general language formed the basis of this requirement: . . .All military personnel and civilians operating or riding in private motor vehicles of a DOD installation will wear seat belts if available. (G.C. Exh. No. 4 at page 2). This rule had not been strictly enforced. Those found in violation of the seat belt rule during random checks by security personnel were not issued citations directly. Their names were recorded by security personnel and they were informed of their failure to comply. They were then advised that their names would be forwarded to their commanders for appropriate action. This procedure was followed for the first two infractions of the rule, and after the third offense those found to be in violation were supposed to receive a mandatory suspension of driving privileges. However, the record reflected that the mandatory suspension rule was not followed by the Respondent. It was acknowledged that a repeated failure to wear seat belts could have led to formal discipline; however, records of seat belt violations were not included in employee personnel files. On June 14, 1983, the day preceding the proposed implementation, Ms. Coxson, on behalf of NFFE, Local 1497, delivered a request to negotiate concerning the proposed change "as soon as possible, but not later than 21 June 1983." (G.C. Exh. No. 11). The request noted an awareness of the duty to bargain prior to implementation, but did not specifically request a delay in implementation. /5/ Ms. Coxson's testimony established that despite the impending proposed implementation date she and a labor relations specialist representing the Respondent agreed to negotiate "as requested" on June 21, 1983, or six days after the proposed implementation date (Tr. 59-60). The "last minute" filing of the request to negotiate on the day preceding proposed implementation; Ms. Coxson's unequivocal acceptance of June 21, 1983, as the date to commence bargaining; and the fact that negotiations actually commenced on June 21, 1983; all lead to the factual finding that Ms. Coxson's June 14, 1983 bargaining request conferred upon the Respondent the option to defer negotiations until after June 15, 1983, the date proposed by Respondent for implementation of the new seat belt policy. The policy spelled out in the June 10, 1983 memorandum by Mr. Koehler was in fact implemented on June 15, 1983, by the issuance of a memorandum dated June 15, addressed to LAFB personnel by Colonel Leslie A. Hobgood, Base Commander, LAFB (G.C. Exh. No. 13). The memorandum announced that the policy would be applicable to "both military personnel/dependents and civilian personnel." However, the record is clear that the term civilian personnel" was not construed by the parties to include bargaining unit members represented by NFFE or other unions recognized by the Respondent. That is, the parties agreed that bargaining unit employees would not then be affected by the policy. The unions were orally assured that bargaining unit members would not be subjected to the new sanctions prior to completion of negotiations, and further that the new policy would be imposed in a manner consistent with Respondent's bargaining obligation. As in the period prior to June 15, 1983, the names of those violating seat belt policy were recorded; however, new policy relating to the suspension of driving privileges was not effectuated with respect to bargaining unit employees. The record clearly indicated that implementation was withheld insofar as all bargaining unit employees were concerned. /6/ The implementation of the new policy did result in an increase in the number of random checks by security personnel to determine whether or not drivers and passengers in POVs were wearing seat belts. However, Counsel for the General Counsel acknowledged that this increase was not relied upon as a basis for the complaint (Tr. 210-211). /7/ The record revealed that the names of individuals were recorded on revised forms not previously utilized by security personnel (G.C. Exh. No. 16). However, the forms were not disseminated, or otherwise utilized as a basis for action, and were used solely for the purpose of recording the identity of those in violation of the rule. This minor administrative change was not alleged as a basis for the complaint, and did not otherwise alter the previously existing practice of recording the names of those in violation of seat belt rules. Negotiations Concerning Seat Belt Policy The Respondent agreed to bargain concerning seat belt policy in accordance with union reuqests (Tr. 125, 132-133). The negotiating teams included representatives of LAFB, NFFE Local 1497, AFGE Local 1974, and AFGE Local 2040. NFFE Local 1497 was represented by Dr. Edgar Smith. He also took a leading role on behalf of the AFGE Locals. Dariel Case, President of AFGE Local 1974, also took a leading role on behalf of the two AFGE Locals. LAFB was represented at the outset by Colonel Donald W. Swain, Vice Commander, LAFB; and thereafter by Colonel John A. Johnson, who replaced Colonel Swain. On June 21, 1983, six days after issuance of Colonel Hobgood's June 15, 1983 memorandum to all LAFB Personnel, Ms. Coxson wrote to Mr. Koehler on behalf of NFFE Local 1497, and outlined a series of issues which she felt should form the basis of negotiations (G.C. Exh. No. 14). This document reflects that, despite limited implementation with respect to non-bargaining unit employees and others earlier in June, she requested that any negotiations occur prior to implementaton. In view of the agreement to negotiate on June 21, 1983, a date after the partial implementation on June 15th, and in view of the agreement to exempt bargaining unit employees, it may be concluded that this request was merely a demand to continue deferral of implementation of policy with respect to NFFE bargaining unit employees. The record reflects no reason to conclude that the new penalty policy was effectuated so as to affect them. Negotiations actually commenced on June 21, 1983, and more serious bargaining concerning the subject occurred on June 28, July 6, and July 15, 1983, prior to mediation. A total of about eight to twelve hours was spent by the parties at these meetings. On June 27, 1983, Dr. Smith submitted to management a list of additional subjects for negotiation (G.C. Exh. No. 15). Thereafter, on either June 28 or July 6, 1983, the three Locals participating in negotiations supplied a new consolidated list of fifteen proposals to the LAFB negotiating team (G.C. Exh. No. 17). By memorandum dated July 1, 1983, the Respondent through Colonel Swain, then LAFB Vice Commander, reiterated the 30 day suspension rule made applicable previously to all but bargaining unit members. He assigned suspension/appeal authority to LAFB organizational commanders. As a result of this change organizational commanders were assigned to hear appeals arising from members of their own commands following citation of such individuals for failure to wear seat belts (G.C. Exh. No. 16). The authority was vested in officers with the rank of colonel or higher. However, the record indicates that the delegation policy was not then made applicable to bargaining unit employees because of the exemption previously arranged for bargaining unit employees. Such authority had in the past always been exercised at the Base Commander or Deputy Commander level. /8/ Counsel representing the General Counsel argued that the delegation of authority to organizational commanders was a change which affected the terms and conditions of employement of bargaining unit members in NFFE Local 1497. It was assumed that the policy would not be equitably administered by the various commanders; and that the effectuation of policy would be more consistent if suspensions were imposed at the Base Commander level (Tr. 102). It was assumed, without evidentiary basis, that organizational commanders would be much more strict in their imposition of sentences (Tr. 188). However, as noted this segment of the new seat belt enforcement policy was not implemented with respect to any bargaining unit employee because of the agreement to defer all enforcement actions until after completion of negotiations. During negotiations on July 15, 1983, the Respondent introduced a proposed "Seat Belt Policy Implementation Guidance" reflecting nine counterproposals (G.C. Exh. No 19, Tr. 137). These were submitted in response to those submitted jointly on behalf of the three Locals participating in negotiations. They may be summarized as follows: 1. The designation of parking areas on LAFB for suspended drivers. 2. Civilian employees found to be in violation of seat belt rules since June 15, 1983, will serve a 30 day suspension not earlier than August 15, 1983. /9/ 3. Safety films will be available through the unit or union safety official. 4. If a passenger is found without a seat belt, the driver of the vehicle will receive a written warning for a first offense, and a 30 day suspension for any subsequent offense. 5. The appeal authority in case of suspension will be sufficiently removed from the employee to provide a fair and equitable review. Revocation/appeal authority has been established by letter dated July 1, 1983 addressed to all Lowry Technical Training Center units by Colonel Swain (G.C. Exh. No. 16). 6. For the first and each subsequent offense a 30 day suspension will be imposed. 7. Any person found driving on base while in a suspension status will be subject to appropriate administrative action by his/her supervisor. 8. Seat belt and shoulder harness restraint devices are to be worn when installed in the vehicle. 9. If for medical reasons, one should not wear a restraint device, the person should submit a medical waiver to his/her supervisor. By memorandum dated July 25, 1983, addressed to the three Locals, Colonel Richard White, Deputy Base Commander explained Respondent's position in support of the nine counterproposals offered on July 15, 1983, and also explained Respondent's reasons for rejecting a number of the fifteen proposals previously submitted by the union Locals (G.C. Exh. No. 20). Colonel White's letter noted that the Respondent rejected union proposals numbered 3, 9, and 13 as an encroachment on management's right to discipline under Section 7106(a)(2)(A) of the Statute. Remaining proposals were either rejected, acceded to, or described as having been addressed in Respondent's nine counterproposals. On July 22, 1983, Dr. Smith, submitted seventeen final counterproposals on behalf of NFFE and the two AFGE Locals (G.C. Exh. No. 21). /10/ Representatives of the Respondent reviewed these, and on August 18, 1983, Colonel Roger K. Taylor, Base Commander /11/ wrote to Ms. Coxson, President of NFFE Local 1497, to advise that union counterproposals numbered 1, 2, 3, 7, and 11 interfered with management rights. Remaining counterproposals were either rejected or adopted. Counterproposals 1, 2 and 3 were rejected as an interference with management's right to take disciplinary action because they dealt with penalties associated with noncompliance and/or the imposition of responsibility for noncompliance. Union counterproposal 7, was described as being outside management's obligation to bargain because it was believed that the proposal would result in a violation of federal law. Union counterproposal 11 was rejected because it interfered with management's right to assign work. In his August 18, 1983 letter, Colonel Taylor advised NFFE that further impact and implementation negotiations would be nonproductive, and that on August 22, 1983, he intended to implement proposals reflecting areas of agreement, together with any other proposals advanced by the Respondent on July 15, 1983. /12/ In this context Colonel Taylor was referring to the Respondent's initial list of nine counterproposals. Mediation Requested As early as July 13, 1983, AFGE Local 2040 wrote to the Federal Mediation and Conciliation Service (FMCS) for the purpose of alerting that agency to the possible need to assign a mediator to help resolve issues involved in the negotiations (G.C. Exh. No. 18). AFGE Local 1974 contacted the FMCS between August 8 and 18, 1983, for the same purpose, and on September 1, 1983, a representative of the Respondent sought the services of the FMCS. By mutual agreement of the parties the FMCS entered negotiations. Further intensive bargaining occurred on September 9, 12, and 15, 1983, under the guidance of Thurman M. Sanders, Commissioner, FMCS, Denver, Colorado. /13/ Ms. Coxson served as the chief representative of NFFE during this phase of negotiations. Dariel S. Case, President of AFGE Local 1974 continued to represent AFGE Local 1974. The record established that all issues were negotiated during the mediation phase (Tr. 145). During this phase the parties specifically negotiated concerning the possibility of reducing the penalties for not complying with the seat belt rule, but could not reach agreement. /14/ During the final mediation session on September 15, 1983, the parties reached tentative agreement on a number of key issues, and initialed their respective copies of a proposed tentative agreement to indicate the specific issues resolved by the parties. The proposed tentative agreement reflecting the intials of union representatives participating in negotiations was subsequently transmitted to the participants in the negotiations (G.C. Exh. No. 23). /15/ The proposed tentative agreement was not adopted by the parties because of the failure to adopt all elements of the document. However, the record shows that the parties negotiated thoroughly with respect to all subject areas mentioned in the tentative agreement proposed by the mediator (Tr. 71, 74, 143-144). Items agreed to by the Respondent reflect significant concessions in a number of instances. Out of a total of nine numbered paragraphs reflecting nine issues, the parties reach agreement on all paragraphs except the eight which provided for a written warning. /16/ It was clear to the parties that the paragraphs agreed to refelcted the Respondent's best offer relating to subjects covered therein (Tr. 198). In addition to issues outlined in the proposed tentative agreement the record also reflects that during mediation the parties negotiated again concerning the question of retroactive enforcement of the new seat belt policy. That is, management proposed that the Respondent retroactively enforce the seat belt policy against all civilian employees found to be in violation after June 15, 1983 (Tr. 199). However, in addition to disagreement over penalties to be imposed, the parties were unable to reach agreement on the issue of retroactive enforcement (Tr. 144). Thus, after agreeing in a number of areas on September 15, 1983, unresolved issues remained. The mediator declared that an impasse had been reached, and the parties agreed that this was indeed true (Tr. 77, 183). According to Ms. Coxson's testimony, representatives of the three Locals were informed that they would have to go to the Federal Service Impasses Panel (Panel) for any further resolution of the matter (Tr. 77). Union negotiators did not then indicate whether they would pursue the matter before the Panel. Respondent Implements New Seat Belt Policy On September 20, 1983, five days after the final mediation session, the Respondent wrote to the three Locals to advise that on September 26, 1983, the Respondent intended to implement Respondent's last best offer concerning the new seat belt policy (G.C. Exh. No. 24). The letter was hand delivered to the three Locals on September 20th (Tr. 236). The eight areas of agreement in the tentative agreement were identified as a significant portion of the implementation intended. The Respondent also noted an intent to implement the 30 day penalty for first and subsequent offenses, except that passengers found in violation would be issued a warning for a first offense. The proposed policy also allowed for exceptions in cases wherein there was "acceptable justification" for a failure to wear seat belts. It was noted that as of September 26th, persons cited for seat belt infractions after June 15, 1983, would during the week of September 26th, be issued notification of suspension of driving privileges. There was no reason to question evidence to the effect that the implementation proposed was in fact the Respondent's last best offer prior to reaching an impasse in negotiations. On September 26, 1983, the new POV seat belt policy was implemented so as to specifically apply to both military and civilian personnel (G.C. Exh. 25). Despite some seeming ambiguity, evidence adduced indicates that no bargaining unit members were ever suspended. By design, bargaining unit employees were not retroactively affected by implementation of the policy. The proposed policy was not implemented so as to affect bargaining unit employees until September 26th (Tr. 235, 251-252). /17/ On September 30, 1983, four days after implementation, Mr. Case, writing as the President of AFGE Local 1974, and as a representative of NFFE Local 1497, and AFGE Local 2040, wrote to the Panel for assistance (G.C. Exh. No. 26). The Respondent did not become aware of the request filed until October 4, 1983 (Tr. 236). The record clearly established that the parties bargained to impasse on issues implemented, and those raised before the Panel by the three Locals (Tr. 95-96, 182-184, 187-188). /18/ As of September 30th, the date of the request for Panel assistance, charges had been filed in each of the unfair labor practice cases referred to in the consolidated complaint. The complaint in Case No. 7-CA-30459 was also issued on September 30th (G.C. Exh. No. 1(g)). After September 30th the proceedings inititated followed their respective courses. The Panel proceeding was pending at the time of hearing and was of concern because of the then existing possibility of conflicting decisions and remedies. /19/ However, on February 1, 1984, after the close of the hearing record, the Panel declined jurisdiction because of the pending unfair labor practice cases involved in this litigation. Department of the Air Force, Lowry Air Force Base, Colorado, and Locals 1974 and 2040, AFGE, and Local 1497, NFFE, Case No. 84 FSIP 1. Following the hearing counsel representing the General Counsel moved to add the Panel decision to the hearing record, or alternatively, that official notice be taken of the Panel decision. Counsel representing the Respondent objected to the introduction of the Panel decision as a General Counsel Exhibit on the ground that the record was closed. However, official notice of the decision was not precluded, and the record indicates that it would be necessary to take official notice of any Panel action in order to avoid the possibility of conflicting decisions threatened by the fact that this matter was pending before the Panel at the time of hearing (Tr. 174-176). Accordingly, official notice is hereby taken of the Panel's February 1, 1984 decision. /20/ Discussion and Conclusions Case No. 7-CA-30459 It is alleged in Case No. 7-CA-30459 that the Respondent implemented a 30 day suspension of driving privileges for failure to wear seat belts in POVs, and that such implementation was a violation of Section 7116(a)(1) and (5) of the Statute. The record shows that the three Locals were interested in participaing in negotiations and requested bargaining concerning this issue; however, all three permitted the Respondent to opt in favor of post-implementation bargaining. The record adduced showed that bargaining "as requested" by NFFE Local 1497 commenced on June 21, 1983, six days after June 15, 1983, the implementation date selected by the Respondent. Ms. Coxson's June 14, 1983, bargaining request gave to the Respondent the option of commencing negotiations as late as June 21, 1983, and negotiations which did in fact begin on this date were described by Ms. Coxson as having commenced "as requested" by here in her June 14, 1983 letter. Furthermore, the two AFGE Locals participating in joint negotiations also submitted a bargaining request which clearly contemplated the prospect of post-implementation bargaining. Under these circumstances there would be no basis for concluding that implementation of the new seat belt policy on June 15, 1983, constituted an unfair labor practice within the purview of the Statute. That is, allegations in the consolidated complaint resting upon an alleged failure of the Respondent to meet bargaining obligations in the statute prior to the June 15, 1983 implementation date were not supported by the record. Instead, the evidence establishes a clear and unmistakeable waiver of the right to bargain prior to June 15, 1983. Department of the Treasury, United States Customs Service, Region 1, Boston, Massachusetts, and St. Albans, Vermont District Office, 10 FLRA No. 100, 10 FLRA 566 (1982). In addition to the failure of proof outlined, the record shows that the imposition of the new and more severe penalty alleged in the consolidated complaint was not, on June 15, 1983, effectuated so as to affect NFFE Local 1497 bargaining unit employees, or bargaining unit members of other Locals. Instead, implementation of the policy with respect to bargaining unit employees was deferred. Introduction of the new policy, by agreement of the parties, was limited so as to exclude bargaining unit members. The Respondent did not administratively begin to apply the policy to bargaining unit members until September 26, 1983. The record shows that as a result of this method of proceeding no bargaining unit employee was suspended as a result of the application of the policy prior to September 26, 1983. This exemption was orally agreed to by the parties. These circumstances also reflect the absence of a rationale for an unfair labor practice based upon a June 15, 1983 imposition of a harsher penalty for violation of the seat belt rule. /21/ It is also alleged in Case No. 7-CA-30459, that the Respondent's July 1, 1983, delegation of authority to suspend driving privileges was a violation of Section 7116(a)(1) and (5) of the Statute. /22/ The record reflects that the July 1 change alleged was not effectuated so as to have any affect upon bargaining unit employees. As of this date the participants in negotiations were operating under an agreement whereby implementation of the seat belt policy would be deferred with respect to all bargaining unit members. The policy was not effectuated so as to embrace bargaining unit members until September 26, 1983. No evidentiary basis exists for a finding that the Respondent implemented the July 1, 1983 delegation of authority as alleged in Case No. 7-CA-30459. Further, consideration of implementation of the delegation of authority on September 26, 1983, is reflected in discussion relating to Case Nos. 7-CA-30543 and 7-CA-30584. In light of the foregoing it is unnecessary to determine whether or not the delegation of authority had an impact or a reasonably foreseeable impact upon employees within the meaning of U.S. Government Printing Office, 13 FLRA No. 39, 13 FLRA 203 (1983); and Department of Health and Human Services, Social Security Administration, Chicago, Region, 15 FLRA No. 174, 15 FLRA 922 (1984). /23/ Case No. 7-CA-30584 Case No. 7-CA-30543 Conduct alleged as a basis for unfair labor practices in these two cases is substantially the same as that set out in Case No. 7-CA-30459. However, in these cases violations of Section 7116(a)(1) and (5) would rest upon alleged unilateral implementation of the 30 day penalty and delegation of adjudicatory authority on September 26, 1983, rather than June 15, 1983 and July 1, 1983. Presumably, counsel for the General Counsel is contending that if the policies in question were not implemented on the earlier dates, they were implemented in violation of Section 7116(a)(1) and (5) on September 26, 1983. With respect to NFFE Local 1497 and AFGE Local 1974 bargaining unit employees involved in these two cases, as well as other bargaining unit employees represented by AFGE Local 2040, it was established that as of September 26th, the Respondent had bargained to impasse on all issues relating to the September 26th implementation of seat belt policy. The specific issues underlying these two cases were addressed in detail during negotiations held before and/or during the mediation phase. This is clear from an examination of documents generated during bargaining and from the testimony of witnesses. The record establishes that prior to September 16th, all relevant issues were negotiated despite the existence of doubt concerning the Respondent's obligation to bargain concerning some of the proposals made by the three Locals. /24/ The final bargaining session on September 15th, did not result in the adoption of the tentative agreement under discussion on that date, but it did nevertheless represent an extended session of good faith bargaining on issues reflected in the proposed tentative agreement, as well as other issues relating to the subject. On September 15th the negotiators recognized that an impasse had been reached, and the Charging Parties in these two cases were apprised of their right to seek Panel assistance by the mediator. On September 20th the Respondent advised union locals that Respondent's last best offer would be implemented on September 26th. The record reflects a basis for finding that the policies actually implemented on this date were in fact Respondent's last best offer. The Locals did not seek Panel assistance during the period intervening between September 20th and September 26th. Instead, the request for Panel assistance was not submitted until September 30, 1983, or four days after the Respondent made the new seat belt policies applicable to bargaining unit members. Since the Locals herein had a reasonable opportunity to invoke the services of the Panel after the parties reached impasse in their negotiations on September 15th, and after receiving Respondent's September 20th notice of intent to implement its last proposals on September 26th; and since there was a failure to request the services of the Panel prior to the announced date scheduled for implementation, it must be concluded that the Respondent did not act unlawfully when the new policies were implemented on September 26th. U.S. Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 5 FLRA No. 39, 5 FLRA 288 (1981); U.S. Customs Service, 16 FLRA No. 31, 16 FLRA 198, (1984); Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 16 FLRA No. 32, 16 FLRA 217 (1984). As a result of the conclusions outlined, it is recommended that the Authority issue the following Order pursuant to 5 C.F.R. section 2423.29. ORDER IT IS HEREBY ORDERED, that the consolidated complaint in Case Nos. 7-CA-30459, 7-CA-30584, and 7-CA-30543, be, and hereby is, dismissed. /s/ LOUIS SCALZO Administrative Law Judge Dated: November 16, 1984 Washington, D.C. --------------- FOOTNOTES$ --------------- (*) Contrary to the Judge, the Authority finds that NFFE's request on June 14 to bargain as soon as possible, but no later than June 21, 1983, did not constitute a waiver of the Union's right to bargain prior to the implementation of the change. Similarly, the Authority finds that AFGE's request on June 14 to exclude the employees in its unit of exclusive recognition from the change until the parties reached agreement did not constitute a waiver of AFGE's right to bargain prior to implementation of the change. In this regard, the Authority notes that Respondent first notified the Unions of the proposed change on June 10, and proposed June 15 as the implementation date. They Authority takes administrative notice that June 10, 1983, was a Friday and that the Unions' response was made by the following Tuesday. Thus, the Unions' response was timely and, given the circumstances, contained no language which would serve as a clear and unequivocal waiver of their right to bargain prior to implementation of the change. Moreover, the Authority notes that subsequent to receiving the Unions' request, the Respondent delayed implementation until after it had satisfied its bargaining obligation. (1) The complaint alleged a failure to bargain in good faith concerning the substance and impact and implementation of the June 15, 1983 memorandum, and a failure to bargain concerning the impact and implmentation of the July 1, 1983 memorandum. (2) Allegations in Case No. 7-CA-30543, involving AFGE Local 1974, are set forth in Paragraphs 5, 14, and 17 of the consolidated complaint. Counsel representing the Respondent moved to strike poritions of the General Counsel's post-hearing brief because of a perceived attempt to expand the allegations of the consolidated complaint to include other alleged unfair labor practices perpetrated against AFGE Local 1974, but not specifically pleaded in the consolidated complaint. Counsel representing the General Counsel filed an opposition to the motion to strike. Since only specifically pleaded allegations relating to AFGE Local 1974 may be considered as a basis for any possible remedy which might inure to the benefit of AFGE Local 1974, and since statements reflected in a post-hearing brief are not evidence, and do not otherwise operate to amend the consolidated complaint, the motion to strike is denied. (3) Counsel representing the General Counsel moved to correct errors in the hearing transcript. Under authority reflected in 5 C.F.R. section 2423.19(r), the proposed corrections are approved with the exception of the proposed correction at Tr. 6:9. An examination of this reference in the transcript reflects no error of the type noted in the motion. Other errors noted on this transcript page were described as appearing at Tr. 6:22, 23 and 24 respectively; however, these errors appeared at Tr. 6:19, 22 and 23 instead. (4) As a result of delivery of the memorandum on June 9, 1983, NFFE Local 1497, received approximately six days notice of the change. A statement to the contrary in the General Counsel's Brief is not supported by the record (G.C. Brief at page 20). Counsel for the General Counsel attempted to derive some benefit from the fact that an incomplete account of the proposed change was reported in the "Lowry Airman," a LAFB newspaper (G.C. Exh. No. 9). It was argued that the new policy was accounced in the newspaper as a fait accompli on June 10, 1983. However, Jt. Exh. No. 10 reflects notice of the proposed change, and there was no showing that the Respondent was responsible for issuance of the incomplete newspaper account, or that such publication was otherwise intended to be a unilateral implementation of a new seat belt policy on June 10, 1983. Argument that the new policy went into effect without notice on June 10, 1983, is not supported by the record. (5) On the same date (June 14, 1983), a similar bargaining request was supplied to Mr. Koehler on behalf of AFGE Locals 1974 and 2040, as they also were interested in joint bargaining concerning the change. It did not include a request for delay in implementation, and did not mention a specific date to begin negotiations. These Locals requested Koehler to reply to the request "before the end of the week to set up a bargaining sess . . . ." (G.C. Exh. No. 12). The week in question ended on June 17, 1983, two days after the proposed June 15, 1983 implementation. This document, plus other evidence in the record shows that the three Unions did not specifically contemplate bargaining prior to implementation. Instead the parties agreed that post-implementation bargaining might ensue. However, at or about the same time it was also agreed that no enforcement action under the new policy would be inititated against bargaining unit employees until after Respondent met statutory bargaining obligations. (6) The Respondent deferred action against all civilian employees including those represented by NFFE, the exclusive representative of bargaining unit members identified in Case No. 7-CA-30459, because it was not possible for security personnel to determine which civilian employees were bargaining unit members. The record indicates that by design the new suspension policy was not effectuated so as to affect bargaining unit employees until after September 26, 1983. (7) The complaint does not rely upon a change in the degree of attention given to the use of seat belts in POVs. It refers to alleged changes relating specifically to penalties to be imposed for violation of rules requiring seat belts in POVs, and changes relating to the delegation of authority to suspend driving privileges. (8) The three Locals first became aware of the delegation of authority at the July 6, 1983 negotiating session. (9) The Respondent sought agreement on this point from the three Locals participating in negotiations in order to apply the stricter sanction against all civilian employees found to be in violation after June 15, 1983. However, by design the Respondent never did proceed against bargaining unit employees, and did not otherwise enforce the new policy against bargaining unit employees until after September 26, 1983. (10) The memorandum notes that the two AFGE Locals reserved the right to "add to and/or modify" the counterproposals submitted. (11) Colonel Taylor replaced Colonel Hobgood as Base Commander during the interim period. (12) The record at this point reflects a stated intent to implement on August 22, 1983. However, it was clear that no steps toward implementation were initiated on this date (Tr. 69). (13) Following the July 15, 1983 bargaining session the parties did not commence actual negotiating meetings again until September 9, 1983. (14) However, the parties did come close to agreement at one point during mediation (Tr. 249). (15) This exhibit reflects only the initials of officials representing the three union Locals. However, both the letter of transmittal prepared by the mediator, and the hearing transcript reflect that representatives of the Locals, and representatives of the Respondent reached agreement on paragraphs initialed. The apparent absence of initialing by a representative of the Respondent is explained by testimony to the effect that agreement on each paragraph was followed by the parties initialing paragraphs on their copies of the proposed tentative agreement (Tr. 142). (16) The record copy of the tentative agreement considered by the parties reflects interlineations which may be disregarded as not a part of the exhibit (Tr. 77, 146-147). (17) Counsel representing the General Counsel endeavored to show that the absence of bargaining unit employee suspensions was the result of chance rather than design. However, it appeared that only nonbargaining unit employees cited after June 15, 1983, were suspended after September 26th. By design bargaining unit employees were not affected until after September 26th. However, despite the foregoing, the parties did, as previously noted, generally discuss and disagree on a proposal to apply the policy retroactively to all civilian employees found to be in violation of the seat belt rule after June 15, 1983. (18) At an early stage of negotiations, prior to mediation, the Respondent interposed assertions of nonnegotiability relating to certain issues. These assertions were abandoned during later negotiations, but were subsequently revived in replies to a Panel request for a statement of position (G.C. Exh. No. 28 and 29). However, despite early assertions of nonnegotiability the Respondent bargained in good faith on all issues prior to impasse. Also, the complaint was not based upon any assertion of nonnegotiability interposed by the Respondent during negotiations which ensue prior to mediation. It is therefore unnecessary to consider Respondent's early assertions of nonnegotiability for the purpose of determining whether unfair labor practices were established. (19) The practice of simultaneously seeking Panel assistance and a remedy in an unfair labor practice proceeding to resolve substantially the same issues are condemned by the Authority in Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 13 FLRA No. 95, 13 FLRA 571 (1984). (20) Although litigation of an unfair labor practice matter which goes to the heart of negotiations made the subject of Panel impasse procedures, has been condemned by the Authority, the fact remains that as of this date only this consolidated complaint is pending disposition. In view of this, and in light of the fact that other factors militate in favor of dismissal of the consolidated complaint, it is unnecessary to determine whether the simultaneous processing of this matter as both Panel and Authority proceedings would have given rise to any reason for dismissal. (21) The consolidated complaint indicates considerable uncertainty concerning the alleged date of implementation of the new seat belt rule. In Case No. 7-CA-30459, it is alleged that the Respondent implemented a new and harsher penalty on June 15, 1983; whereas in Case Nos. 7-CA-30543 and 7-CA-30584, it was alleged that such implementation commenced on September 26, 1983. As a result of the foregoing, it is clear that doubt concerning the date of implementation was built into the theory of the case. Discussion of the September 26, 1983 implementation follows herein in connection with consideration of Case Nos. 7-CA-30543 and 7-CA-30584. (22) Duality in the prosecutive theory is also reflected by a comparison of this allegation with allegations set out in Case Nos. 7-CA-30543 and 7-CA-30584. In the latter cases it was alleged that implementation of the delegation of authority occurred on September 26, 1983. (23) If an impact upon employees which is more than de minimus cannot reasonably be foreseen no bargaining obligation arises. Counsel representing the General Counsel argued that an advserse impact was foreseeable. It was noted that a greater number of individuals would be adjudicating cases involving violation of the seat belt rule. However, from this fact it would not be possible to conclude that bargaining unit employees would receive unfair or disparate treatment. Similarly, it was contended that there would be an impairment of the exclusive representative's capacity to monitor the seat belt program, and to represent aggrieved employees. These assertions were speculative in nature. It cannot be presumed that this administrative change would have impeded efforts to monitor organizational commander adjudications, or that it would have interfered with the right of any exclusive representative to represent or assist bargaining unit employees. The mere assertion of these contentions by counsel representing the General Counsel, without more, would not demonstrate a factual basis for finding a foreseeable adverse impact as claimed. (24) This circumstance makes it necessary to determine the nature of the Respondent's bargaining obligation with respect to particular proposals raised by the Locals. Moreover, as previously noted, the complaint does not allege unfair labor practices based upon Respondent's interposing allegations of nonnegotiability.