[ v24 p334 ]
The decision of the Authority follows:
24 FLRA No. 38 UNITED STATES DEPARTMENT OF DEFENSE DEPARTMENT OF THE AIR FORCE HEADQUARTERS, AIR FORCE TRAINING CENTER (ATC) LACKLAND AIR FORCE BASE, TEXAS Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1367, AFL-CIO Charging Party Case No. 6-CA-40408 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 essentially alleged that Respondent violated section 7116(a)(1) and (5) of the Statute when it failed to provide the Union adequate notice of, or an opportunity to bargain in good faith concerning procedures and appropriate arrangements for adversely affected employees on the implemention of revised Air Force Regulation 40-452, Performance Management Program. We conclude that the Respondent committed the unfair labor practice as alleged. II. Facts On June 4, 1983, the Respondent hand-delivered to the Union a letter informing it of a forthcoming revised regulation, AFR 40-452, entitled "Performance Management Program," to be implemented on July 1. A draft of the regulation, consisting of nearly 200 pages including a "Summary of Changes" listing 17 changes in the regulation, was attached to the letter. The Respondent informed the Union that it would explain the regulation and its changes and provide the Union with more information at a later date. Although the Respondent conducted a briefing on June 13 with the Union, explaining the most important changes of the regulation concerning the Union, the briefing was not completed because the Respondent's representative was unable to answer the Union's questions in detail. During this meeting, the Respondent asked the Union to submit its proposals regarding the revised regulation. The Union replied that the briefing lacked specificity and it could not submit its proposals until the briefing was completed. The Union asked that it be given various Air Force regulations referred to in AFR 40-452, and Respondent replied that they were available in the publication library. Respondent's representative concluded the meeting by saying that he would get back to the Union to finish the briefing. On June 14, the Respondent again asked the Union to submit proposals in writing. Thereafter, the Union was not able to review the regulations mentioned in AFR 40-452 because they were not available in the publication library. On June 28, when the Union reminded the Respondent's representative that he had not returned to finish the briefing, the representative replied that there would be no further discussions on the matter. On June 29, late on a Friday afternoon, the Union gave the Respondent a letter that requested: (1) negotiation on the impact and implementation of AFR 40-452; and, (2) the postponement of its implementation until after the parties completed negotiations. Upon receipt of the request to negotiate, the Respondent told the Union that the submission was late. The Respondent implemented the regulation on July 1. Subsequently, on July 19, the Union submitted a written list of proposals to the Commander of the Base. No bargaining took place with respect to the regulation. III. Judge's Decision The Judge concluded that the Respondent did not violate section 7116(a)(1) and (5) of the Statute as alleged. He found that the Union's request to bargain at the "eleventh hour" was untimely, noting particularly that the request was made on June 29, late on a Friday afternoon just before the proposed implementation of the new regulation on Sunday, July 1. Also, the Judge found that the Respondent: (1) gave the Union adequate notice of the change and the specific details of the regulation to enable the Union to make proposals to management; and (2) requested, on several occasions, the Union to submit proposals. Further, he found that although the Respondent conducted a briefing session with the Union concerning the regulation and indicated its intention to resume briefings, it was not obliged to do so. Finally, the Judge found that the Union's proposals given to the Base Commander on July 19 would not support a refusal to bargain allegation. He found that the request to bargain after changes were implemented was also untimely. IV. Positions of the Parties The General Counsel excepts to the Judge summarily rejecting the need for adequate information needed by the Union for bargaining. The General Counsel contends that the Respondent misled the Union into reliance on a briefing and the availability of documentation, and subsequently abrogated all commitments and refused to bargain with the Union on the matter. The Respondent filed a brief in opposition to the General Counsel's exceptions. V. Analysis We find, contrary to the Judge, that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to bargain in good faith with the Union concerning procedures and appropriate arrangements for adversely affected employees on the implementation of AFR 40-452. After the Union was notified of the impending changes in the regulation, it requested the Respondent to explain the regulation and its changes as well as provide more information to the Union. The Respondent committed itself to provide the information and to give the Union a briefing. Although a briefing was held on June 13, it was not completed because the Respondent's representative was unable to answer the Union's questions. During the briefing the Respondent's representative asked the Union to submit bargaining proposals. The Union responded that the briefing lacked the specificity it needed to submit proposals and that it could not submit proposals unitl the briefing was concluded and the changes from the previous regulation had been identified. The Judge credits the testimony of the Union that the Respondent's representative stated that he would get back to the Union to finish the briefing. It was not until June 28, two working days before implementation of the regulation, that the Union was informed that there would be no further discussion of the matter. The Union requested negoitations and postponement of the implementation of the regulation on the following day, prior to the date the Respondent established to implement the regulation. We find that the Union was misled by the Respondent's representative when he stated that he would finish the briefing and provide the Union with additional information necessary for the Union to submit appropriate proposals. It was this failure by the Respondent to provide the necessary information that delayed the Union in submitting bargaining proposals. In these circumstances, the Union's request to bargain was timely. Therefore, we find that the Respondent violated the Statute by failing to bargain in good faith with the Union over procedures and appropriate arrangements for adversly affected employees before it implemented the revised regulation. See Department of the Air Force, Scott Air Force Base, Illinois, 19 FLRA No. 13 (1985). In view of our conclusion, it is unnecessary to address the Judge's conclusion regarding the Union's post-implementation proposals. 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 and the entire record in this case, and adopts the Judge's findings and conclusions only as modified. We find, contrary to the Judge, that the Respondent failed and refused to bargain in good faith with the Union concerning procedures and appropriate arrangements for adversely affected employees on the implementation of AFR 40-452, in violation of section 7116(a)(1) and (5) of the Statute. ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Authority orders that the United States Department of Defense, Department of the Air Force Headquarters, Air Force Training Center, ATC, Lackland Air Force Base, Texas shall: (1) Cease and desist from: (a) Failing and refusing to bargain in good faith with the American Federation of Government Employees, AFL-CIO, Local 1367, the exclusive representative of its employees, and affording it the opportunity to bargain concerning procedures and appropriate arrangements of adversly affected employees on the implementation of revised Air Force Regulation 40-452, Performance Management Program. (b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Statute. (2) Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Upon request, bargain in good faith with the American Federation of Government Employees, AFL-CIO, Local 1367, the exclusive representative of its employees, concerning procedures and appropriate arrangements of adversly affected employees on the implementation of revised Air Force Regulation 40-452, Performance Management Program. (b) Post at its facilities at Lackland Air Force Base 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, Lackland Air Force Base, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure 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 VI, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply. Issued, Washington, D.C. December 5, 1986. Jerry L. Calhoun, Chairman Henry B. Frazier III, Member Jean McKee, 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 and refuse to bargain in good faith with the American Federation of Government Employees, AFL-CIO, Local 1367, the exclusive representative of our employees, and afford it the opportunity to bargain concerning procedures and appropriate arrangements of adversely affected employees on the implementation of revised Air Force Regulation 40-452, Performance Management Program. 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, bargain in good faith with the American Federation of Government Employees, AFL-CIO, Local 1367, the exclusive representative or our employees, concerning procedures and appropriate arrangements of adversely affected employees on the implementation of revised Air Force Regulation 40-452, Performance Management Program. (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 VI, Federal Labor Relations Authority, whose address is: 525 Griffin Street, Suite 926, Dallas, Texas 75202, and whose telephone number is: (214) 767-4996. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 6-CA-40408 UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF THE AIR FORCE HEADQUARTERS, AIR FORCE TRAINING CENTER, ATC, LACKLAND AIR FORCE BASE, TEXAS Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1367 Charging Parties Charles L. Brower, Lt. Col., USAF For the Respondent Susan E. Jelen, Esquire, For the General Counsel Before: WILLIAM NAIMARK Administrative Law Judge DECISION Statement of the Case Pursuant to a Compliant and Notice of Hearing issued on August 23, 1985 by the Regional Director for the Federal Labor Relations Authority, Dallas, Texas, a hearing was held before the undersigned on October 29, 1985 at San Antonio, Texas. This case arose under the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101, et seq. (herein called the Statute). It is based on a Second Amended Charge filed on August 22, 1985 by American Federation of Government Employees, AFL-CIO, Local 1367 (herein called the Union) against United States Department of Defense, Department of the Air Force Headquarters, Air Force Training Center, ATC, Lackland Air Force Base, Texas (herein called the Respondent). The Complaint alleged, in substance, that (a) on or about June 28, 1984, and continuing thereafter, Respondent refused to bargain in good faith with the Union over procedures to be observed and appropriate arrangements for adversely affected employees in implementing Air Force Regulation 40-452, Performance Management Program, (b) on or about July 1, 1984 and continuing thereafter, Repsondent refused to bargain in good faith with the Union by unilaterally implementing the aforesaid Air Force Regulation 40-452 without providing the Union adequate notice of, or an opportunity, to negotiate over procedures to be observed in implementing the regulation and appropriate arrangements for adversely affected employees -- all in violation of Section 7116(a)(1) and (5) of the Statute. Repsondent's Answer, dated September 4, 1985, denied the aforesaid allegations of the Complaint, as well as the commission of any unfair labor practices. All parties were represented at the hearing. Each was afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs were filed which have been duly considered. /1/ Upon the entire record herein, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence adduced at the hearing, I make the following findings and conclusions: Findings of Fact 1. At all times material herein the Union has been, and still is, the exclusive bargaining representative of all permanent, full time, Air Force civilian employees paid from appropriated funds assigned to Lackland Air Force Base, Texas with specified exclusions from said unit. 2. At all times material herein the Union and Respondent have been parties to a collective bargaining agreement covering the aforesaid unit which is composed of approximately 2300 employees. 3(a). Between 1972 and June, 1985, Frank G. Suarez was president of the Union. At all times material herein Julius Garcia was first vice-president of the Union. (b) At all times material herein Chalres Shinn was Chief of the Respondent's Civilian Personnel Office, Ramon Lopez was Respondent's Chief of Labor Relations, and Anthony Fuentes was Respondent's Chief of Employee Relations. 4. Record facts disclose that between May, 1983 and June, 1984 Respondent changed its employment conditions on various occasions; that it was customary for management to forward the changes with a covering memo signed by Lopez; and that bargaining thereon would normally occur three weeks from the time the Union made a request to bargain. 5. On June 4, 1984 /2/ Lopez hand delivered to Suarez a letter which informed the Union of a forthcoming new regulation (AFR 40-452) to be implemented on July 1, and an attached draft of the said regulation. Lopez explained that someone would come and explain the regulation and its changes as well as provide more information to the Union. Thereafter, on June 8, Suarez gave the regulation to Garcia for the latter to review and decide if it required negotiations with management. 6. The draft of AFR 40-452, entitled "Performance Management Program", established a program that integrates certain performance, pay, and recognition processes which is applicable to employees in the Lackland unit. As such, it implements requirements of 5 CFR, Part 430 (performance appraisal), Part 540 (merit pay), Part 531 and 532 (within grade increase - WGI), Part 305 (probation) and Part 451 (performance awards). It also implements FPM, Supplement 335-1, pertaining to the use of performance appraisals in promotion. 7. The said regulation, which comprises nearly 200 pages, contains 17 changes. They are as follows: /3/ "SUMMARY OF CHANGES" "This publication implements the performance management concept (para 1-2) and the pay-for-performance concept (para 1-3); explains differences in employee coverage (para 1-6b and atch 1); implements a single appraisal form (para 2-1); establishes an initial 90-day appraisal period (para 2-2); sets up two annual appraisal cycles (para 2-3); adds new requirements regarding supervisory safety and health responsibilities (para 2-9c); adds new requirements on critical performance elements (para 2-10); adds additional requirements regarding the quality control review (para 2-13); explains how ratings on work behavior must relate to ratings on performance (para 2-19); explains the requirements to appraise work behavior and how the rating is used (paras 2-17 through 2-30); clarifies the separate probation required for new supervisors and managers (para 4-2); implements new guidance on dealing with performance problems (chap 5); establishes a new cash award for GM employees (para 7-4); authorizes a quality step increase only for superior ratings (para 7-5a); establishes a 1 percent of salary minimum for the SSPA and MPCA (fig 7-1, table 4); and, changes recordkeeping requirements (chap 12)." 8. At the request of Lopez, management official Fuentes came to the Union office on June 13 to conduct a briefing of AFR 40-452. The official stated that it was necessary to implement the new regulation on July 1. Although Garcia inquired why it had to be done so quickly, Fuentes gave no explanation. An overview of the program and its philosophy was covered, and Fuentes called the Union's attention to the most important changes concerning the Union. The most important change, as mentioned by the management representative, dealt with a new system which combined the old Job Performance Appraisal System (JPAS) and the Civilian Potentail Appraisal System (CPAS). These were no longer separate and district appraisal processes, and they had to be related to one another. There would be one appraisal during the rating year instead of two separate appraisals. /4/ 9. At the briefing on June 13 Fuentes asked the Union if there were any questions re the new regulation. Garcia asked what other changes were introduced by the new program. Fuentes stated he couldn't answer in detail and that he was going to a training session that day but would get back to the Union representatives. Garcia requested that he be given the various Air Force regulations referred to in AFR 40-452, and Fuentes replied they were in the publication library at Lackland. Fuentes asked that the Union submit its proposals re the proposed new regulation. Whereupon Garcia stated the briefing lacked specificity and the Union couldn't submit proposals until the briefing was completed; that the Union could not submit the proposals until Fuentes finished his briefing and pointed out all the changes from its past regulation. Whereupon Fuentes said he would get back to the Union. /5/ 10. The record reflects that on June 14 Ms. Tommie Holmes, an employee relations specialist, telephoned Garcia. She stated that Fuentes asked her to contact Garcia and tell the latter to send Fuentes the Union's proposals in writing. Garcia replied that he would try to get them ready. 11. Garcia attempted to review the regulations mentioned in AFR 40-452 by going to the library but they were not available. The said regulations were available at the Civilian Personnel Office, but Garcia was advised he could review them only during duty hours and could not have copies thereof. 12. Garcia testified, and I find, that on June 28 he went to see Fuentes at the latter's office and asked for copies of the Federal Personnel Manual. He mentioned that they were lengthy and did not have time to review them. The request was denied. When Garcia reminded Fuentes that the latter had not returned to finish the briefing, the management official stated that, upon adivce of Lopez, there would be no further discussion with the Union on this matter; that Ms. Holmes at the Civilian Personnel Office had contacted the Union and requested proposals and there was adequate time to submit same. In reply thereto, Garcia said that Fuentes knew the Union was dealing with him and Lopez. The Union official then said he would submit proposals the next day based on the information had by the Union. Fuentes then told Garcia to "do what you want to, but the agency will not entertain anything, or discuss anything." /6/ 13. After the aforesaid meeting Garcia advised Suarez what had been said thereat. Upon advice from Suarez, the Union president conferred with Al Kia, president of AFGE, Local 3782 which was negotiating with Air Force agency SARPMA /7/ over AFR 40-452. Garcia testified he copied some of the proposals sumbitted by Kia on two yellow pages. 14. On June 29 Garcia gave Fuentes a letter, dated June 28, written by Suarez and addressed to the Commander of Lackland Air Force Base - attention: Charles Shinn. This letter from the Union requested negotiation re the impact and implementation of AFR 40-452, as well as the postponement of its implementation until after the parties finished meeting and completed an agreement. It was suggested therein that the parties meet on July 2. Garcia testified that he also delivered the proposals of the Union, which were handwritten on the two yellow pages, to Fuentes on June 29. /8/ Upon receiving the request to negotiate as set forth in Suarez's letter, Fuentes informed Garcia it was late for submission (being late Friday afternoon) since the regulation would be implemented on Sunday, July 1. 15. Respondent did not reply to Suarez's letter of June 28 wherein the Union requested negotiations re the impact and implementation of AFR 40-452. The regulation was implemented on July 1. 16. On July 19 Garcia gave a written list of 12 proposals by the Union, in respect to AFR 40-452, to the secretary of General Smith, the Commander at the Base. /9/ These proposals, which were addressed to the Commander, were a typewritten copy (with a few changes) of the proposals made by Kia on behalf of Local 3782, and which Garcia testified he gave to Fuentes on June 29 on handwritten pages. 17. No bargaining has taken place with respect to the said regulation. 18. In addition to the change resulting from AFR 40-452, whereby employees would no longer receive two separate appraisals during the rating year, but would receive a combined JPAS & CPAS appraisal, two other signigicant changes affecting employees were made by the new regulation: (a) an initial appraisal period was established, so that employees must be appraised at the end of, but no earlier than, 90 days; (b) the critical elements, which formed the basis for the appraisal and rating of employees, were changed in the new regulation. Conclusions It is contended by General Counsel that Respondent violated Section 7116(a)(1) and (5) of the Statute. It predictes this conclusion on the further contentions: (a) that AFR 40-452 was implemented unilaterally without affording the Union adequate notice and a reasonable opportunity to request bargaining on the impact and implementation of the regulation; (b) that management refused to bargain thereon. Case law in the public sector has established that while an agency may exercise certain management rights, purusant to Section 7106 of the Statute, an obligation is imposed upon the agency when it changes conditions of employment in exercising such right. In such an instance a union must be provided with adeuqate notice of the agency's decision and afforded an opportunity to bargain on the impact and implementation of any such change. Department of the Treasury, U.S. Customs Service, Region 1 (Boston, Mass.), 16 FLRA No. 97; U.S. Government Printing Office, 13 FLRA No. 39. There are, however, correlative obligations imposed upon a union which has been notified of any intended changes by an agency. A union is obliged, in such event, to make a timely request to bargain or seek more time to consider a change. Where the union's request is submitted at the eleventh hour, albeit before the change, it has been held to be untimely. See Customs Service, Region 1 (Boston, Mass.), supra; Social Security Administration, Bureau of Hearings and Appeals, A/SLMR No. 960, 8 A/SLMR 33. Further, a request to bargain after the change is implemented has been held untimely and no refusal to bargain will be found. General Services Administration, 15 FLRA No. 6. Turning to the case at bar, the General Counsel avers that the notice of the proposed implementation of AFR 40-452 was not sufficiently specific or definitive re the contemplated changes. In support of such averment, it is argued by General Counsel that briefing were required to elaborate or explain the new regulation and its changes. It is true that notice of a decision to change working conditions must be specific, and that a passing reference to a contemplated change will not be deemed adequate notice. Department of the Army, Harry Diamond Laboratories, Adelphi, Maryland, 9 FLRA No. 66; U.S. Department of the Air Force, Air Force Systems Command et al., 5 FLRA No. 88; Department of the Treasury, Internal Revenue Service, Indianapolis, Indiana, A/SLMR No. 909, 7 A/SLMR 844. However, in the case at bar I am persuaded that the new regulation itself (AFR 40-452), which was given to the Union on June 4, was specific as to the contemplated charges. The summary of changes - as set forth in G.C. Exhibit No. 3 and Respondent's Exhibit No. 4 (following Chapter 12) - specified the 17 proposed changes in the Performance Management Program. In each instance the changed condition of employment was specifically mentioned, i.e. establishing a 90 day appraisal period, implements a single appraisal form, etc. While management did conduct a briefing session in regard thereto, and indicated an intention to resume briefings, I am not convinced that such was obligatory on its part. Further, the fact that discussion ensued re the various changes does not militate against concluding that the notice of the changes, and their specifity, were sufficient. I am satisfied that the purported changes as given to the Union were sufficiently detailed to appraise the bargaining representative of their substance; that such notification thereof was adequate to allow the Union to make proposals to management concerning same. With respect to the time frame allotted to the Union to request bargaining and submit proposals based on the proposed new regulation, I conclude Respondent has fulfilled its obligation in that regard. Since AFR 40-452 was given to the Union on June 4 with an implementation date of July 1, the Union had 4 weeks advance notice of the contemplated changes. Past decisions by the Authority reveal that substantially less notice by an agency has been deemed adequate. Thus, in Customs Service, Region 1 (Boston, Mass.), supra, 10 days notice of a changed procedure, requiring inspectors to make a phone call to management on completing an assignment, was considered sufficient notification. Also, a 4 day notice of a reduction-in-force of employees was held adequate. United States Department of Defense, Department of the Army, Headquarters, Fort Sam Houston, Texas, 8 FLRA No. 112. It is also concluded by the undersigned that the Union was afforded a reasonable opportunity to negotiate the changes which were to be implemented on July 1. When Garcia received the proposed regulation on June 4 there was also attached thereto a letter from Lopez asking the Union representative to contact him re same. On June 13, during the briefing conducted by Fuentes, the latter asked Garcia to send management the Union's proposals re AFR 40-452. Again, on June 14 management representative Tommie Holmes called Garcia and requested he submit the Union's prposals. The request for negotiation, which was set forth in a letter from Suarez to the Commander was given to Fuentes on June 29. This was the first time the Union presented its request and it was made on a Friday afternnon just before the proposed implementation of the new regulation on Sunday, July 1. In accord with the cases heretofore cited I conclude that the Union was afforded a reasonable time and opportunity to request bargaining and submit its proposals re the new regulations. While it did ultimately submit such request, this was done at the eleventh hour. Thus, the Respondent was justified in so advising Garcia on June 29 in view of its planned implementation on July 1. The refusal to negotiate at this late date on the impact and implementation of AFR 40-452 was not, in line with past decisional law, a refusal to bargain in violation of 7116(a)(5) of the Statute. See Internal Revenue Service (District, Region, National Office Unit), 14 FLRA No. 92. Moreover, the proposals given by Garcia to General Smith's office on July 19 will not support a refusal to bargain allegations even though unanswered by Respondent. /10/ A request to bargain made after changes are implemented must be considered untimely, and no refusal to bargain by Respondent will be found thereafter. Department of the Army, U.S. Military Academy, West Point, New York, A/SLMR No. 1138, 8 A/SLMR 1163. Accordingly, the undersigned concludes that Respondent did not refuse to bargain with the Union re the implementation of AFR 40-452 in violation of Section 7116(a)(1) and (5) of the Statute. It is therefore recommended that the Authority issue the following Order: ORDER It is hereby Ordered that the Complaint in Case No. 6-CA-40408 be, and the same hereby is, dismissed. WILLIAM NAIMARK Adminstrative Law Judge Dated: March 13, 1986 Washington, D.C. --------------- FOOTNOTES$ --------------- (1) Subsequent to the hearing the Respondent filed with the undersigned a Motion to Strike Portions of General Counsel's Post-Hearing Brief. In its brief the General Counsel cited Department of the Navy, Naval Ordinance Station, 4 FLRA 760. Respondent, asserting that General Counsel misinterpreted the cited decision and its ratio decidendi, contends that the General Counsel omitted certain language when it quoted Judge Mason, the author thereof. The Motion is denied. Quotations from, or portions of, a cited case as set forth by a party in a brief are part of Counsel's argument. They are not factual in nature, nor may they be deemed an attempt to adduce post-hearing evidence. The undersigned can determine, upon reviewing the cited case, its applicability herein. (2) Unless otherwise inidcated, all dates hereinafter mentioned occur in 1984. (3) The changes in performance management, as contained in AFR 40-452, appear in G.C. Exhibit No. 3 on the page following Chapter 12-3 and in Respondent's Exhibit No. 4 on pages 57-58. (4) Garcia testified that Fuentes stated management changed its position re the grievability of performance ratings; that whereas job performance was deemed norgrievable in the past, under this regulation it was grievable. Fuentes denied referring to any such change, and he testified job appraisals were always considered grievable; that the new regulations made no change. While Article XXIII of the collective bargaining agreement, which is entitled "Negotiated Grievance Procedure, purportedly covers this matter, it is clearly a matter of contract interpretation and no change in this respect appears in AFR 40-452. (5) Fuentes denied giving any indication to Garcia that he would come back and finish briefing. His testimony, however, reflects that he gave the impression he would come back if the Union called and needed explanation. Suarez, who was present at the briefing, also testified that Fuentes stated on June 13 he had to leave for training for the new regulation. Further, that Fuentes was making arrangements to come back and talk over AFR 40-452 again with the Union. I credit the versions of what occurred at the briefings as testified to by Garcia and Suarez. (6) This conversation, as testified to by Garcia, was undenied by Fuentes. (7) San Antonio Real Property Maintenance Association. (8) Fuentes testified that Garcia did not give him anything but the letter (G.C. Exhibit No. 4). In view of the ultimate disposition of the central issue herein, the undersigned concludes it is unnecessary to reslove credibility as to the submission of the handwritten proposals. (9) The letter containing these proposals, and addressed to the Commander, was dated June 29. Garcia's testimony reflects that the Union so dated the letter because that was the date it submitted its handwritten proposals to Fuentes. (10) Assuming arguendo, the Union submitted its proposals to Fuentes on June 29, which fact is in dispute, the undersigned would deem the submission untimely. Thus, a refusal to negotiate thereon, in view of the implementation date of July 1, would not be violate of 7116(a)(5).