United States Information Agency, Voice of America and National Federation of Federal Employees, Local 1418 (Authority decision, October 28, 1988)

Read the official release (flra.gov)

Final FLRA decision. The Authority adopts the judge's unfair labor practice finding and orders Voice of America to restore the prior preparation and cleanup times for radio technicians. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

Voice of America cut radio technicians' preparation and cleanup periods from 15 minutes each to 10 and 5 minutes. NFFE Local 1418 argued that the agency had to bargain over the decision itself. The Authority found that the parties had negotiated this subject before August 19, 1972, so section 704 of the Civil Service Reform Act preserved the bargaining duty for these prevailing rate employees. It upheld the finding that the agency's refusal to bargain was an unfair labor practice. The order restores the two 15-minute periods and requires notice and bargaining before any future change.

Decision snapshot

• Authority: Section 704 of the Civil Service Reform Act and unfair labor practice provisions of 5 U.S.C. § 7116(a)(1) and (5).
• Outcome: Violation upheld; 15-minute preparation and cleanup periods restored.
• Key point: The pre-1972 bargaining history preserved substantive bargaining over these radio technicians' time periods.

Full text (FLRA public release)

[ v33 p549 ]
33:0549(74)CA

The decision of the Authority follows:

33 FLRA NO. 74

UNITED STATES INFORMATION AGENCY

VOICE OF AMERICA

(Respondent)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1418

(Charging Party)

3-CA-70062

DECISION AND ORDER

October 28, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This unfair labor practice case is before the Authority on

exceptions filed by the Respondent to the attached Administrative

Law Judge's Decision.

The complaint alleged that the Respondent violated section

7116(a)(1) and (5) of the Federal Service Labor - Management

Relations Statute (the Statute) by failing and refusing to

negotiate in good faith over the substance of its decision to

reduce the preparation and cleanup times for radio technicians

from 15 minutes to 10 minutes and 5 minutes, respectively.

The Judge found that the Respondent was obligated to bargain

over the substance of its decision under section 704 of the Civil

Service Reform Act of 1978 (CSRA). The Judge concluded that the

Respondent violated the Statute by failing and refusing to

negotiate the changes in preparation and cleanup times.

We conclude, in agreement with the Judge, that the

Respondent committed the unfair labor practices alleged in the

complaint. 1

II. Background

This case concerns radio technicians involved in the

operation of the United States Information Agency, Voice of

America, worldwide broadcasting network. The technicians are

"prevailing rate" employees who are covered by section 9(b) of

the Prevailing Rate Systems Act (the Act), Pub. L. No. 92-392,

codified at 5 U.S.C. 5343 (Amendments, note) (1982 ed.). See

International Communication Agency, 5 FLRA 97, 99 (1981).

As relevant to this case, section 704 of the CSRA provides

generally that those terms and conditions of employment and other

employment benefits, with respect to prevailing rate employees to

whom section 9(b) of Pub. L. No. 92-392 applies and which were

the subject of negotiation in accordance with prevailing rates

and practices prior to August 19, 1972, shall be negotiated on

and after October 13, 1978, in accordance with the provisions of

section 9(b) without regard to the provisions of the Statute.

Therefore, section 704 and section 9(b) require an agency to

continue to negotiate on matters which were the subject of

negotiation prior to August 19, 1972. See Columbia Power Trades

Council and United States Department of Energy, Bonneville Power

Administration, 22 FLRA 998 (1986). Section 704 and section 9(b)

are set forth in full in the appendix to this decision.

III. Administrative Law Judge's Decision

As noted by the Judge, this case concerns a change in radio

technicians' preparation and cleanup times implemented by the

Respondent. The Respondent's radio broadcasting facility operates

24 hours each day, 7 days a week. Radio technicians are assigned

to work schedules of 15-minute periods. Each assignment begins

and ends on the quarter hour. From about 1965 until

October 1986, based on the Respondent's practice and agreements

of the parties, radio technicians were allowed a 15-minute period

at the beginning of their shifts, which was designated as

preparation or setup time, and 15 minutes of unscheduled time at

the end of their shifts, which was known as cleanup or breakdown

time. During this 20-year period, the Respondent adhered to the

practice except in emergencies.

In 1986, the Respondent concluded that changes should be

made in its broadcast operations in order to cut costs. By letter

dated August 27, 1986, management advised the Union of its plan

to reduce the scheduled breaks of radio technicians. The Union

replied in a letter dated August 28, 1986, stating that

management's plan concerning technicians' break time was

unacceptable. The parties met several times in September on the

matter but failed to reach agreement. On September 25, 1986, the

Union advised the Respondent's representative that the 15-minute

time periods at the beginning and end of the technicians' shifts

were subject to bargaining and that it sought to bargain over the

substance of the Respondent's decision.

The Respondent answered on September 29, stating that the

new preparation and cleanup schedule would not result in any

adverse effects and that the Union had refused to discuss the

matter or point out any adverse result of the change in

schedules. In a letter dated September 30, the Respondent advised

the Union that it intended to implement the changes in the

technicians' schedules on October 26, 1986. The Respondent also

informed the Union that it would discuss impact and

implementation proposals regarding the adverse effects of the

proposed changes.

The Union replied on October 2, 1986, stating that "the

Union deemed the 15 minute time period at the commencement of the

shift and its end was a subject of negotiation prior to August 9,

1972 (sic); that, under section 704 of the Civil Service Reform

Act, it was a mandatory subject of bargaining despite Section

7106 of the Statute." Judge's Decision at 11. The Union requested

bargaining and proposed that the Respondent maintain the status

quo.

The parties communicated several times between October 3 and

October 15 but failed to reach agreement. The Judge found that

even though the Respondent invited the Union to submit proposals

as to both the substance and the impact and implementation of the

decision, the Respondent consistently took the position that its

obligation to bargain extended only to impact and

implementation. Judge's Decision at 11-12. The union insisted on

bargaining over the substance of the decision. When the parties

failed to reach agreement, the Respondent implemented the change

to 10 minutes of preparation time and 5 minutes of cleanup time

for radio technicians in the studio and recording areas. The

change was implemented on October 26, 1986.

The Judge determined that a finding of an unfair labor

practice in this case turned on whether the subject matter of the

Respondent's unilateral change was within the scope of the duty

to bargain under section 9(b) of the Act and section 704 of the

CSRA. The Judge examined the Act, the CSRA and the Authority's

decision in Bonneville Power Administration, 22 FLRA 998 (1986).

Judge's Decision at 14-15. He summarized the Authority's holding

in Bonneville, namely, "that under section 704 agencies must

continue to negotiate on terms and conditions of employment for

prevailing rate employees where those terms and conditions were

subject to negotiation prior to August 19, 1972," (footnote and

emphasis omitted) and concluded that this holding "conformed to

the legislative intent in framing section 704(.)" Id. at 15.

The Judge found that from about 1965 until October 1986,

radio technicians were allowed a 15-minute period at the

beginning of their shifts which was designated as preparation or

setup time and 15 minutes of unscheduled time at the end of their

shifts which was known as cleanup or breakdown time. In

particular, the Judge found that "Union Meeting Notes," which

were prepared by management, signed by both parties, and dated

July 7, 1966, showed that representatives of management and the

Union had discussed the matter of setup and breakdown time.

Section 2-29 of the meeting notes provided that "(a)ll

technician's (sic) assignments shall include adequate setup and

breakdown time." Judge's Decision at 6 (quoting notes of July 7,

1966). Similar "Union Meeting Notes," which were prepared by

management, signed by the parties, and dated October 11, 1967,

contained the same provision--Section 2-29--for setup and

breakdown time as the 1966 document. Id.

The parties executed their first basic agreement on August

15, 1968. No provision was included in the agreement concerning

preparation or setup and cleanup or breakdown time. However,

Article VIII, Section 2 of the agreement provided for the

continuation of established practices and policies in effect

before the agreement, including "conclusions reached at meetings

between the Union and Agency representatives as reflected in the

written meeting notes." Id. at 7, note 10.

According to the Judge, on August 12, 1971, after the

execution of the basic agreement, the parties agreed in writing

that "the management practice of scheduling a 15 minute period

before and immediately following an individual's assignment in

the studio and recording areas on a continual basis would

continue." Id. at 16 (emphasis in Judge's decision). The Judge

credited the testimony of the Union and management

representatives who were present at the August 12, 1971 meeting

and found that the testimony was consistent with the documentary

evidence which indicated that the subject matter of the dispute

was negotiated prior to August 19, 1972.

The Judge also found that during negotiations for a new

basic agreement in 1976, the Union proposed that a provision be

included granting 15 minutes for both preparation and cleanup

time. After several months of negotiations, the parties agreed to

a management proposal of 10 minutes preparation time and 5

minutes cleanup time. The new agreement was executed on March 31,

1977, and contained the management proposal.

After numerous complaints from technicians, the Union

requested that the 1977 agreement be changed so as to delete the

provision on preparation and cleanup time. The provision was

deleted from the 1977 agreement by an amendment dated April 19,

1977. At the time the amendment to the agreement was made,

management stated that in agreeing to delete the provision from

the agreement it was not also agreeing to return to the 15-minute

time periods. However, the Judge found that the practice of 15

minutes of preparation and of cleanup time for radio technicians

remained in effect until 1986.

Based on the record as a whole, the Judge found that prior

to August 19, 1972, the parties had negotiated on and agreed to

provisions concerning preparation and cleanup times for the radio

technicians in the studio and recording areas. He concluded,

therefore, that pursuant to section 704 of the CSRA the subject

continued to be a bargainable matter. He also found that the

management rights provisions of section 7106 of the Statute did

not relieve management of its obligation to negotiate over the

substance of the change from 15 minutes of preparation time and

15 minutes of cleanup time to 10 minutes and 5 minutes,

respectively.

Consequently, having found that the Respondent had a duty to

bargain under section 704, the Judge concluded that the

Respondent violated section 7116(a)(1) and (5) of the Statute by

failing and refusing to bargain with the Union over the

decision to change preparation and cleanup times for radio

technicians in the studio and recording areas. He rejected the

Respondent's claim that it was excused from its obligation to

bargain by the Union's refusal to negotiate over impact and

implementation only. He found that the Respondent's willingness

to bargain extended only to the impact and implementation of the

change in preparation and cleanup time, while the Union insisted

on its right to bargain on the substance of the change as well.

The Judge's recommended order requires the Respondent to

rescind the change and reestablish the 15-minute preparation and

cleanup times. The order also requires the Respondent to notify

the Union of any anticipated change in preparation and cleanup

times and to bargain upon request on any decision to effectuate

that change.

IV. Positions of the Parties

The Respondent identified 5 "questions upon which exceptions

are taken" and lists 12 additional exceptions to the

Administrative Law Judge's Decision. 2 The Respondent's

exceptions can be summarized as three basic issues:

(1) Whether the Judge erred in finding that preparation and

cleanup time was a matter which was the subject of negotiation

between the parties prior to August 19, 1972. (Respondent's

Exceptions No. 1, 2, 3, 4, 5, 6(1), 9, 10, and 11);

(2) Whether the Judge's reliance on Columbia Power Trades

Council and U.S. Department of Energy, Bonneville Power

Administration, 22 FLRA 998 (1986), resulted in an application

of section 704 which is inconsistent with section 704 and

frustrates the policy of the Statute. (Exceptions No. 6(2) and

8); and

(3) Whether the Judge erred by ordering a status quo ante

remedy. (Exceptions No. 7 and 12).

The General Counsel contends with respect to the first issue

that the Respondent's exceptions merely amount to

disagreement with the Judge's findings of fact. As to the second

issue, the General Counsel contends that the Judge correctly

applied the Authority's decision in Bonneville Power

Administration. Regarding the final issue, the General Counsel

asserts that the Judge properly ordered status quo ante relief

since the substance of the change at issue is negotiable and

there is no evidence of "special circumstances" which would

justify a denial of the status quo ante remedy.

V. Discussion

It is undisputed that these employees are prevailing rate

employees as described in section 9(b) of Pub. L. No. 92-392. It

is also undisputed that section 704 of the CSRA authorizes

prevailing rate employees to negotiate over conditions of

employment and other employment benefits which were the subject

of negotiation between the parties prior to August 19, 1972,

without regard to the provisions of the Statute. See Judge's

Decision at 13-14. Therefore, if the matter at issue in this

dispute was the subject of negotiation between the parties prior

to August 19, 1972, the Respondent was obligated to bargain with

the Union concerning the matter.

For the reasons set forth below, we find that the matter of

preparation and cleanup times for radio technicians was a matter

which was the subject of negotiation between the parties prior to

August 19, 1972. Consequently, the Respondent was obligated to

bargain over the substance of its decision to change preparation

and cleanup times for radio technicians. We conclude that the

Respondent violated the Statute when it failed and refused to

bargain with the Union on the substance of its decision to change

the technicians' preparation and cleanup times.

A. Preparation and Cleanup Time was Negotiated By the

Parties Prior to August 19. 1972

The Administrative Law Judge relied on meeting notes of

labor-management discussions during 1966 and 1967 to find that

the parties had negotiated over "adequate setup and breakdown

time" for all technicians prior to August 19, 1972. Judge's

Decision at 15. According to the Judge, although the parties did

not include a provision concerning setup and breakdown periods in

their first basic agreement in 1968, they did agree to continue

the established practices and policies in effect before the

agreement, including practices and policies which were reflected

in the written meeting notes. The Judge found that the

practice of providing 15 minutes for setup and breakdown periods

was reflected in the meeting notes of July 7, 1966 and October

11, 1967. The Judge indicated that his finding that the parties

had negotiated on this subject prior to August 19, 1972, was

supported by the inclusion of a specific provision concerning the

"continuation" of "a 15 minute period before and immediately

following an individual's assignment" in an agreement between the

parties dated August 12, 1971. Judge's Decision at 16.

The Respondent acknowledged that it "discussed" preparation

and breakdown time for technicians but asserts that the Judge

incorrectly concluded that it had "negotiated" over preparation

and clean-up time for technicians. See Judge's Decision at 15.

The Respondent argues that the Judge failed to find that the

parties could not have negotiated over the subject because

Executive Order 10988, which governed collective bargaining

relationships prior to January 1, 1970, and the parties' 1968

agreement, which incorporated the Executive Order, precluded

negotiations over matters affecting management rights.

We find that the record before us supports the Judge's

finding that the meetings between the parties during 1966 and

1967 constituted "negotiations" rather than mere "discussions" on

the subject of preparation and cleanup time. The record indicates

that meeting notes were prepared by management and signed by both

parties as "a summation of what was accomplished in the way of

agreement and/or disagreements" between the parties. Judge's

Decision at 5 (quoting notes dated July 7, 1966). The Judge

concluded that the parties agreed to continue the past practice

concerning preparation and breakdown times when they included the

July 7, 1966 and October 11, 1967 meeting notes by reference in

their 1968 agreement. The Judge also relied on a subsequent

written agreement dated August 12, 1971, as evidence of

negotiations on preparation and breakdown times prior t? August

19, 1972. We find that the Judge's conclusion is supported by the

record and that the Respondent's exceptions do not provide a

basis for a contrary conclusion.

The Respondent claims that the scope of bargaining between

the parties prior to August 19, 1972 was limited by Executive

Order 10988 and by the incorporation of that Executive Order in

the parties' 1968 agreement, and that those limitations continue

to define the parties' scope of bargaining. We find the

Respondent's argument to be unpersuasive. The specific terms of

section 704(a), as confirmed by the pertinent legislative

history, provide that an agency is required to bargain

with an exclusive representative on terms and conditions of

employment about which it had negotiated with that exclusive

representative prior to August 19, 1972, without regard to

chapter 71 of title 5 (the Statute), to the extent that the

provisions of chapter 71 are inconsistent with section 704.

Section 704, therefore, preserves the scope of bargaining as

evidenced by the parties' negotiations, including the agreements

reached by those parties, prior to August 19, 1972. The

determining factor in deciding whether a matter is negotiable

under section 704 is whether it was negotiated prior to August

19, 1972. By its terms, section 704 makes no distinction among

subjects negotiated prior to that date based upon whether they

would or would not have been negotiable under Executive Order

10988. Nor is there any evidence in the legislative history of

section 9(b) of the Act or section 704 that Congress intended any

such distinction. In our view, section 704 preserves the scope of

bargaining which existed prior to August 19, 1972, regardless of

whether the matters would have been in conflict with prior

executive orders governing labor relations in the Federal

Government.

Moreover, in Bonneville, the Authority held that "(t)he

plain meaning of (section 704 (a)) is that it exempts provisions

of specified collective bargaining agreements from the

limitations on the scope of bargaining set forth in the Statute,

including the management rights provisions of section 7106."

Bonneville, 22 FLRA at 1005. Section 704 allows the parties to

negotiate without regard to the limitations of the management's

rights provisions of the Statute, where the matters proposed for

bargaining had been negotiated prior to August 19, 1972. Since

the parties may negotiate without regard to the limitations of

the management's rights provisions of the Statute, it would be

incongruous to conclude that the negotiation of preparation and

cleanup times is precluded by the management's rights provisions

in an executive order which was revoked in 1970, and has been

superseded by the Statute. Where, as here, parties have

negotiated matters which conflict with the management's rights

provisions of the Statute, section 704 preserves the right to

negotiate those matters in accordance with prevailing practices.

Further, because the Executive Order itself does not serve to

preclude bargaining over preparation and cleanup times, neither

can the provision in the 1968 agreement which incorporates the

Executive Order by reference.

The Respondent's exceptions to the Judge's conclusion that

the parties had "negotiated" preparation and cleanup time prior

to August 19, 1972 are rejected. We adopt the Judge's

findings and conclusion that preparation and cleanup time for

radio technicians was negotiated by the parties prior to August

19, 1972.

B. The Judge Properly Applied Section 704 of the CSRA

The Respondent contends that the Judge's reliance on the

Authority's decision in Bonneville Power Administration, 22 FLRA

998 (1986), results in an application of section 704 that is

inconsistent with the intention of that section to preserve

"unchanged" the scope and substance of collective bargaining

relationships. The Respondent states that in Bonneville, the

Authority preserved "unchanged" the scope of bargaining between

the parties. It asserts that the Judge's decision, in contrast,

establishes a scope of bargaining which is inconsistent with that

which previously existed between the parties in this case. That

is, the Respondent maintains that the Judge's application of

section 704 changes the parties' scope of bargaining by adding an

entirely new subject matter. See Respondent's Brief at 9-13. We

reject this contention and find that the Judge properly applied

section 704 to preserve the Agency's duty to bargain on

preparation and cleanup times.

The Judge did not improperly apply the Authority's

Bonneville decision to enlarge the scope of bargaining. In

Bonneville, the Authority found provisions which had not been

included in prior agreements to be negotiable under section 704

because the subject matters of those provisions had been

negotiated by the parties prior to August 19, 1972. Id. at

1006-09. In this case, the Judge's finding that the matter of

radio technicians' preparation and cleanup times is negotiable is

consistent with the parties' bargaining history prior to August

19, 1972 as evidenced by their: (1) 1968 agreement and the

meeting notes referenced therein; and (2) August 12, 1971

agreement in which the parties agreed that the scheduling of

preparation and cleanup time would continue. Moreover, even

assuming that there is a difference between preparation and setup

time and cleanup and breakdown times, as the Respondent contends,

the matter of preparation and cleanup times, which is the

specific subject at issue in this case, was negotiated and agreed

to by the parties in the August 12, 1971 agreement. We reject,

therefore, the Respondent's contention that the Judge found a

duty to bargain over a "new" subject matter, a matter which the

parties had not negotiated prior to August 19, 1972.

The Respondent also contends that the Judge erred by

"finding that the matter concerning preparation and clean-up

[ times is subject to bargaining pursuant to section 704,

in the absence of a finding that such negotiations would be 'in

accordance with prevailing rates and practices' in the radio

broadcast industry." Exception No. 8, Respondent's Exceptions at

4. However, in International Brotherhood of Electrical Workers,

Local Union No. 611, AFL - CIO and U.S. Department of the

Interior, Bureau of Reclamation, Rio Grande Project, 26 FLRA 906

(1987), petition for review filed sub nom. Department of the

Interior. Bureau of Reclamation, Rio Grande Project v. FLRA, No.

87-2483 (10th Cir. Oct. 8, 1987), the Authority rejected an

argument by the agency in that case that a benefit (premium pay)

which was included in the parties' agreement prior to August 19,

1972, could not be the subject of current negotiations because it

was not now a prevailing practice in the local area. The

Authority found that such a result would not be consistent with

the broad purpose of section 9(b) and section 704 to preserve the

rights of employees covered by those sections to negotiate for

the continuation of benefits which they had historically

received. See also National Federation of Federal Employees.

Local 341 and U.S. Department of the Interior. Bureau of Indian

Affairs. Yakima Agency and the Wapato Irrigation Project, 30 FLRA

783, 787 (1987), petition for review filed sub nom. U.S.

Department of Interior, Bureau of Indian Affairs, Yakima Agency

and the Wapato Irrigation Project v. FLRA, No. 88-7077 (9th

Cir. Feb. 26, 1988).

We also find in this case that interpreting the term

"prevailing practice" in a manner that would deny benefits which

employees had previously negotiated, solely on the basis that

those benefits are not currently prevailing practices in the

industry, would not be consistent with the broad purpose of

section 9(b) of the Act and section 704. Therefore, we reject the

Agency's contention that it cannot be required to bargain over

the continuation of preparation and cleanup times unless those

practices are current prevailing practices in the broadcast

industry.

The Respondent next contends that it discharged its duty to

bargain over preparation and cleanup times when the parties

negotiated an agreement after 1972 which did not include a

specific provision on preparation and cleanup times. The

Respondent asserts that "(o)nce a provision bargainable under

section 704 expires and is not renewed, that subject should

revert to protected management's rights status and the union

should be foreclosed from seeking to reassert section 704

protections by resurrecting pre-1972 bargaining history."

Respondent's Brief at 19.

The legislative history of the Prevailing Rate Systems Act

provides that "prevailing rate employees who are now covered by

such contracts will be subject to the provisions of the Act when

such contracts expire and are not renewed or replaced by new

contracts." H.R. Rep. No. 339, 92d Cong., 1st Sess. 22 (1971).

The purpose of that statement is to indicate when employees who

are covered by section 9(b) would lose the protection of that

section. As indicated by the repeated use of the term

"contracts," employees entitled to bargain under section 9(b)

cease to be covered by section 9(b) when they cease to be covered

by contracts, that is, negotiated collective bargaining

agreements. In our opinion, the legislative history indicates

that the provisions of that Act will govern the terms and

conditions of employment of employees subject to section 9(b)

only in the absence of a collective bargaining agreement covering

those employees. Stated differently, if collective bargaining

agreements for prevailing rate employees who are now covered by

the provisions of section 9(b) expire and are not renewed or

replaced by any other agreement, then the Act will apply to those

employees. The legislative history does not state, as the

Respondent asserts, that if a provision in an agreement which was

negotiated under section 9(b) expires and is not renewed, then

the subject matter of the provision is, thereafter, governed by

the provisions of the Prevailing Rate Systems Act. See Medler v.

United States Bureau of Reclamation, Department of the Interior,

616 F.2d 450 (9th Cir. 1980).

Section 9(b) and section 704 preserve the scope of

bargaining of the parties as it existed prior to August 19, 1972.

Nothing in the terms of those provisions makes the continuation

of that scope of bargaining contingent on the continuation of

particular agreement provisions. Parties covered by section 9(b)

and section 704 could, in a new agreement, change the provisions

of previous agreements or alter the rights of the respective

parties concerning the matters involved. Bonneville, 22 FLRA at

1008. If an agreement excludes a provision which was the subject

of negotiation prior to August 19, 1972, that fact alone does not

remove that subject matter from the duty to bargain in connection

with subsequent agreement negotiations.

The opposite conclusion would require unions to avoid the

tradeoffs which are an essential component of collective

bargaining in order to avoid the loss of the right to bargain

about that subject altogether. Not only would bargaining become

difficult, but collective bargaining agreements could contain

provisions which no longer met the parties' needs because of a

union's concern that the loss of those provisions would reduce

its scope of bargaining. We do not believe that

Congress intended such a result. The statutory terms provide that

prevailing rate employees lose the protection of section 9(b)

only when contracts covering them expire and are not renewed or

replaced by new contracts. Accordingly, we reject the

Respondent's interpretation of the legislative history of the

Act.

Further, we reject the Respondent's exception to the Judge's

application of a waiver standard to determine whether the Union

had relinquished its right to bargain over subjects covered by

section 704. The Respondent argues that the Judge incorrectly

found that the Respondent implied, in its arguments, that a

waiver standard was applicable. See Exception No. 6(2),

Respondent's Exceptions at 4 and Respondent's Brief at 20. It is

our view, stated above, that the determining factor in deciding

the scope of bargaining under section 704 is whether the subject

matter of a proposal had been negotiated by the parties prior to

August 19, 1972. The fact that the parties may not have included

a particular provision pertaining to that matter in subsequent

agreements is irrelevant to the question of the parties' basic

scope of bargaining under section 704. Therefore, the issue of

whether the absence of a particular provision constitutes a

waiver of the right to bargain does not arise.

In sum, the Respondent's arguments concerning the Judge's

application of section 704 of the CSRA to the facts in this case

lack merit and do not provide a basis for rejecting the Judge's

decision.

C. A Status Quo Ante Remedy Is Warranted

To remedy the unfair labor practice in this case, the Judge

ordered, among other things, that the Respondent return to the

practice of providing 15 minutes of preparation time at the

beginning of each technician's shift and 15 minutes of cleanup

time at the end of each shift. The Judge rejected the

Respondent's arguments that a return to the status quo was

inappropriate because it would create significant programming and

scheduling problems. The Judge also rejected arguments that a

status quo ante remedy would be inconsistent with the parties'

agreement because it would provide employees a third opportunity

in a single year to change their shifts when the agreement

provided for only two such opportunities.

The Authority has held that where an agency has violated the

Statute by refusing to negotiate over its decision to change

working conditions, the Statute requires the imposition

of status quo ante remedies, absent special circumstances, in

order not to render meaningless the mutual obligation under the

Statute to negotiate concerning changes in conditions of

employment. Veterans Administration, West Los Angeles Medical

Center, Los Angeles, California, 23 FLRA 278, 281 (1986). After

noting this standard, the Judge specifically found that

"(n)othing in the record reflects the nature of any especial

hardship experienced by Respondent when it made the change (from

the 15 minute periods to the 10 and 5 minute periods), and it, is

assumed that the same circumstances would exist in returning to

the practice of 15 minute periods for preparation and clean-up

actions." Judge's Decision at 20.

The Respondent alleges that a status quo ante remedy should

be denied because the change in preparation and cleanup periods

had a "de minimis" impact. See Exception No. 12, Respondent's

Exceptions at 5. In Department of Health and Human Services and

Social Security Administration, 30 FLRA 922, 926 (1988), we held

that where the decision to make the change is itself negotiable,

the extent of the impact of a change in conditions of employment

on unit employees is irrelevant in determining whether the agency

had a duty to bargain. Therefore, Respondent's assertion provides

no basis for denying a status quo ante remedy because the

Respondent failed to fulfill its obligation to bargain over the

decision to change conditions of employment. Id.

We reject, as well, the Respondent's argument that the Union

should be denied a status quo ante remedy because it acted in bad

faith. The Respondent asserts that the Union refused to bargain

and refused to explain the basis for its request to bargain on

the substance of the Agency's decision. The Judge stated that the

"record herein reveals that Respondent, despite its statements to

(the Union) that management would be willing to listen to (its)

proposals and discuss the change in preparation and clean-up

times, never intended to do more than negotiate as to impact and

implementation." Judge's Decision at 18. The Judge found that

because the Respondent never offered the Union a reasonable

opportunity to negotiate over the substance of its decision, the

Respondent could not claim that its failure to fulfill its

obligation to bargain stemmed from the Union's refusal to

participate.

We agree with the Judge's conclusion that the Union did not

prevent the Respondent from fulfilling its obligation to bargain

by refusing to enter into impact and implementation bargaining

and insisting on its right to bargain on the substance

of the change. While bargaining may have been facilitated if the

Union had provided the Agency with the evidence on which the

union relied for its claim that the matter in dispute was

negotiable under section 704, the Union was under no obligation

to do so. The Respondent's claims do not establish special

circumstances warranting denial of a status quo ante remedy.

VI. Conclusion

We have rejected the Respondent's exceptions concerning the

Judge's factual findings and his application of section 704 of

the CSRA to the facts of this case. We have also found that the

Respondent's exceptions to the Judge's status quo ante remedy

lack merit. We conclude, therefore, in agreement with the Judge,

that the Respondent was obligated to bargain with the Union

concerning its decision to reduce the preparation and cleanup

times for radio technicians and that the Respondent violated

section 7116(a)(1) and (5) of the Statute by failing and refusing

to negotiate over that decision. We also conclude that the remedy

recommended by the Judge is warranted under the circumstances.

ORDER

Pursuant to section 2423.29 of the Authority's Rules and

Regulations and section 7118 of the Federal Service Labor -

Management Relations Statute, the United States Information

Agency, voice of America, shall:

1. Cease and desist from:

(a) Changing the preparation time and cleanup time of the

radio technicians in the studio and recording areas without first

notifying the National Federation of Federal Employees, Local

1418, the exclusive representative of its employees, and

affording it the opportunity to bargain, to the extent consistent

with law and regulation, on the decision to effectuate such

change.

(b) In any like or related manner interfering with,

restraining or coercing its employees in the exercise of their

rights assured by the Federal Service Labor - Management

Relations Statute.

2. Take the following affirmative action in order to

effectuate the purposes and policies of the Federal Service Labor

• Management Relations Statute:

(a) Rescind the 10-minute preparation time and 5-minute

cleanup time for radio technicians in the studio and recording

areas, and reestablish the 15-minute preparation time and

15-minute cleanup time for those unit employees.

(b) Notify the National Federation of Federal Employees,

Local 1418, the exclusive bargaining representative of its

employees, of any intention to change the preparation time and

cleanup time of radio technicians in the studio and recording

areas and, upon request, bargain with such representative, to the

extent consistent with law and regulation, on any decision to

effectuate such change.

(c) Post at its Washington Plant, in Washington, D.C.,

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 Chief of the Operations Management

Division, and shall be posted and maintained for 60 consecutive

days thereafter, in conspicuous places, including all bulletin

boards and other places where notices to employees are

customarily posted. Reasonable steps shall be taken to insure

that such Notices are not altered, defaced, or covered by any

other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and

Regulations, notify the Regional Director, Region III, Federal

Labor Relations Authority, in writing, within 30 days from the

date of this Order as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT change the preparation time and cleanup time of the

radio technicians in the studio and recording areas without first

notifying the National Federation of Federal Employees, Local

1418, the exclusive representative of our employees, and

affording it the opportunity to bargain, to the extent consistent

with law and regulation, on the decision to effectuate such

change.

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 rescind the 10-minute preparation time and 5-minute

cleanup time for radio technicians in the studio and recording

areas, and reestablish the 15-minute preparation time and

15-minute cleanup time for those unit employees.

WE WILL notify the National Federation of Federal Employees,

Local 1418, the exclusive representative of our employees, of any

intention to change the preparation time and cleanup time for

radio technicians in the studio and recording areas and, upon

request, bargain with such representative, to the extent

consistent with law and regulation, on any decision to effectuate

such change.

__________

(Activity)

Dated: ___ By: ________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the

date of posting, and must not be altered, defaced, or covered by

any other material.

If employees have any questions concerning this Notice or

compliance with its provisions, they may communicate directly

with the Regional Director, Region III, Federal Labor Relations

Authority, whose address is: 1111 18th Street, N.W., 7th Floor,

P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone

number is: (202) 653-8500.

___________

APPENDIX

Section 704 of the CSRA provides that:

(a) Those terms and conditions of employment and other

employment benefits with respect to Government prevailing rate

employees to whom section 9(b) of Public Law 92-392 applies which

were the subject of negotiation in accordance with prevailing

rates and practices prior to August 19, 1972, shall be negotiated

on and after the date of the enactment of this Act (Oct. 13,

1978) in accordance with the provisions of section 9(b) of Public

Law 92-392 without regard to any provision of chapter 71 of title

5, United States Code (as amended by this title), to the extent

that any such provision is inconsistent with this paragraph.

(b) The pay and pay practices relating to employees referred

to in paragraph (1) of this subsection shall be negotiated in

accordance with prevailing rates and pay practices without regard

to any provision of--

(A) chapter 71 of title 5, United States Code (as amended by

this title), to the extent that any such provision is

inconsistent with this paragraph;

(B) subchapter IV of chapter 53 and subchapter V of chapter

55 of title 5, United States Code; or

(C) any rule, regulation, decision, or order relating to

rates of pay or pay practices under subchapter IV of chapter 53

or subchapter V of chapter 55 of title 5, United States Code.

Section 9(b) of Pub. L. No. 92-392 provides that:

The amendments made by this Act shall not be construed

to--

(1) abrogate, modify, or otherwise affect in any way the

provisions of any contract in effect on the date of enactment of

this Act (Aug. 19, 1972) pertaining to the wages, the terms and

conditions of employment, and other employment benefits, or any

of the foregoing matters, for Government prevailing

rate employees and resulting from negotiations between Government

agencies and organizations of Government employees;

(2) nullify, curtail, or otherwise impair in any way the

right of any party to such contract to enter into negotiations

after the date of enactment of this Act (Aug. 19, 1972) for the

renewal, extension, modification, or improvement of the

provisions of such contract or for the replacement of such

contract with a new contract; or

(3) nullify, change, or otherwise affect in any way after

such date of enactment (Aug. 19, 1972) any agreement,

arrangement, or understanding in effect on such date (Aug. 19,

1972) with respect to the various items of subject matter of the

negotiations on which any such contract in effect on such date

(Aug. 19, 1972) is based or prevent the inclusion of such items

of subject matter in connection with the renegotiation of any

such contract, or the replacement of such contract with a new

contract, after such date (Aug. 19, 1972).

______________

UNITED STATES INFORMATION

AGENCY, VOICE OF AMERICA

Respondent

and

NATIONAL FEDERATION OF

FEDERAL EMPLOYEES, LOCAL 1418

Charging Party

Case No. 3-CA-70062

Anita Schoomaker, Esq.

Carol Epstein, Esq.

Harold Howard

For the Respondent

Peter Sutton, Esq.

For the General Counsel

Gary Marco

For the Charging Party

Before: WILLIAM NAIMARK

Administrative Law Judge

DECISION

Statement of the Case

Pursuant to a Complaint and Notice of Hearing issued on

February 26, 1987 by the Regional Director for the Federal Labor

Relations Authority, Region III, a hearing was held before the

undersigned on May 8 and June 17, 1987 at Washington, D.C.

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 charge filed on November 7, 1986 by

the National Federation of Federal Employees, Local 1418 (herein

called the Union) against United States Information Agency, Voice

of America (herein called the Respondent).

The Complaint alleged, in substance, that Respondent failed

and refused to negotiate in good faith over the substance of its

decision to reduce the preparation time at the beginning of each

radio technician's shift from 15 minutes to 10 minutes, and to

reduce the breakdown time at the end of each such employee's

shift from 15 minutes to 5 minutes; that the aforesaid change was

implemented on or about October 26, 1986 and Respondent's failure

and refusal to so negotiate was violative of Section 7116(a)(1)

and (5) of the Statute.

Respondent's Answer denied its failure and refusal to

negotiate in good faith and that it violated the Statute as

alleged. It set forth several affirmative defenses which will be

alluded to in the discussion and conclusions reached by the

undersigned, infra.

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. Able briefs 3 were

filed with the undersigned by the parties.

On October 29, 1987 General Counsel filed a Motion To Strike

Respondent's Post - Hearing Brief. It was contended that

Respondent's brief was untimely filed since it was required,

pursuant to the undersigned's directive, to be postmarked no

later than October 22, 1987, but the postmark affixed thereon by

the U.S. Postal Service was October 23. 1987. In support of its

position that such postmark establishes the filing date, as set

forth in Section 2429.21(b) of the Rules and Regulations, General

Counsel cites Veterans Administration, Veterans Administration

Medical Center, Muskogee, Oklahoma, 29 FLRA No. 5 (1987).

As indicated in Respondent's Opposition To The Motion To

Strike Respondent's Post - Hearing Brief, postage was applied at

about 8:00 p.m. on October 22. 1987 to the said brief by means of

a postage meter dated October 22, 1987. The said instrument was

placed thereafter at about 8:30 p.m. on said date in a U.S.

Postal Service pouch at 1800 M Street, N.W. lobby. The

General Counsel's brief was received by Respondent on October 26,

1987. 4

In the Veterans Administration case, supra, no postmark had

been placed on a motion filed by the agency, and an issue was

presented as to whether the motion was timely filed. In referring

to Section 2429.21(b) of its Regulations, the Authority declared

that the date of the postmark itself establishes the date of

filing and cuts off any dispute over the actual mailing date.

While it is true that the Authority did not determine the

effect of a meter-dated postmark, which precedes a U.S. Postal

Service postmark, it seems reasonable to conclude that "postmark

date" refers to the postmark affixed by the Postal Service. In

that event the postmark of October 23, 1987 affixed by the

Service would render the filing of Respondent's brief as

untimely.

Note is taken, however, that Section 2429.23(b) of the

Regulations provides that the expired time limit may be waived in

extraordinary circumstances. 5 In my opinion the circumstances

herein warrant waiving the time limit for the filing of

Respondent's brief. The facts disclose an honest effort by

counsel to file the brief on October 22, as reflected by the

metered postmark of that date and the deposit of the papers in

the U.S. Postal mail pouch on October 22. Moreover, the delay was

inconsequential as Respondent avers it did not receive General

Counsel's brief until October 26. It is concluded by the

undersigned that the purposes of the Statute are effectuated by

waiving the time limit under the circumstances herein.

Accordingly, the Motion To Strike Respondent's Brief is denied. 6

Upon the entire record, 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, and since on or about June

4, 1965, the Union has been the exclusive representative of

Respondent's radio broadcast technicians at its Washington Plant.

There are about 170 employees in the bargaining unit.

2. The Voice of America (VOA) is one of four major units in

the United States Information Agency (USIA). It is charged with

responsibility to produce and broadcast radio programs in English

and about 40 foreign languages. At the Washington Plant there are

four branches: studio, master control, central recording and

technical services which has two sections: maintenance and

field.

3. Technicians in the studio operations operate the studios,

mixing live talent with pre-recorded tape discs for music

inserts. Master Control channels all VOA broadcasts to various

geographic areas of VOA's worldwide network. central Recording is

responsible for recording on tape all programs originating

locally or in remote areas, as well as providing services such as

electronic news gathering. Technical Support maintains and

services equipment. It also covers field operations where

technicians will set up recording equipment, string lines,

cables, circuits and the like.

4. Respondent's radio broadcasting facility (Washington

Plant) operates 24 hours each day, seven days a week. There are

about 35-40 broadcast studios located on several floors. Radio

technicians, who are prevailing rate employees and connected with

Studio and Central Recording operations are assigned to work

schedules of 15 minute time periods. Each assignment commences

and concludes on the quarter hour to comply with the work

schedule of 15 minute increments.

5. From about 1965 until October, 1986 Respondent's radio

technicians were allowed a 15 minute period at the beginning of

the technician's shift, which was designated as preparation or

setup time. This 15 minute period, occurring before the employee

reported to his assignment, was to permit him to use his locker,

sign in, check the daily work schedule, pick up necessary

equipment and report to his duty station. During the same period

since 1965 the radio technician was afforded 15 minutes

of unscheduled time at the end of his shift, which was known as

clean-up or breakdown time. 7 This 15 minute allotment was

granted to permit the employee to shut down the studio, wash,

check schedules for any assigned overtime, and lock-up. 8 The

practice of 15 minutes for preparation and for clean-up time was

followed during the 20 year period unless an emergency arose, as

when a technician had to report directly to his assignment or

remain after his duty hour to cover for an employee who was not

present.

6. Record facts show that commencing in 1966 representatives

of division management and the Union discussed the matter of

setup and breakdown time. Thus, a document entitled "Union

Meeting Notes," 9 dated July 7, 1966, states in part as

follows:

The purpose of this meeting was to review the notes of the

previous meetings order (sic) to make a summation of what was

accomplished in the way of agreement and/or disagreements between

the Union and the Technical services Division for presentation to

the Agency for their possible ratification. Each section was

reviewed in its numerical order.

Section 2-29, which appears in this document, recites that

"All technician's assignments shall include adequate setup and

breakdown time." (underscoring supplied). The record indicates,

as testified to by Oringel, that this issue of set up and

breakdown time was discussed thoroughly at this meeting on July

7, 1966.

7. The parties signed another document on October 11, 1967

which is also entitled "Union Meeting Notes" and was likewise

prepared by management. It reflects that a meeting was held on

that date attended by Oringel and another individual on behalf of

the Union. Pinney, along with the other persons, represented

management, and he signed for IBS. The document 10 contained the

same provisions (Section 2-29) for setup and breakdown time as in

the July 7, 1966 document. Added to the provisions was the

clause: "Any deviation from this practice shall be duly logged

for appropriate action." This section was discussed at the

October 11 meeting. It was agreed upon by division management

since it was a local division work procedure. 11

8. With respect to the terms "setup" and "breakdown" time as

used in Section 2-29 in the aforesaid document, Ernest Acquisto,

who was a fourth line supervisor, testified that such terms

referred to field operations. In other words, adequate setup and

breakdown time would be provided to technicians travelling to

remote locations so as to set up equipment, string cables, and

prepare equipment. Acquisto was not present at the meetings on

July 7, 1966 or October 11, 1967.

9. Under date of August 15, 1968 the Union and Respondent

executed the first basic agreement. Its duration was for two

years and it automatically renewed thereafter unless duly

terminated by either party. No provision was made in

the agreement for preparation or clean-up time. 12 Neither was

the subject discussed during the negotiations for this

agreement.

10. Subsequent to the execution of the basic agreement the

parties met to discuss certain matters, including the preparation

and clean-up time afforded the technicians. 13 Record facts

indicate that a meeting was held on August 12. 1971. It was

attended by Union representative Eugene Leonard,

President of the Union, and Engineers Phil Danaher and Robert

Bach. On behalf of management were Acquisto as well as

Supervisors Jason and Mandelstamm. At this meeting the parties

discussed the matter of preparation and clean-up time for the

technicians. As reflected in G.C. 2, entitled "Union Management

Notes" the Union agreed and accepted in part the proposal by

management (IBS/PO) but insisted upon inserting the word

"emergency" before work requirements. Management agreed with the

insertion. Also, in compliance with the Union's request, the

proposal re preparation and clean-up time was revised to include

the recording area. The proposal, which was agreed to by the

parties, was signed by Leonard for the Union and Leon Jason for

management who was Plant Manager. It provided as follows:

IBS/PO PROPOSAL

SECTION 2-41 SCHEDULING PRACTICE

It is agreed that the management practice of scheduling a fifteen

(15) minute period before and immediately following an

individual's assignment in the studio and recording area on a

regular work day shall continue, with the provision that this

period is part of an individual's work day (to sign in, check his

schedule, walk to his assignment, arrive in the assigned studio

or cubicle on time prepared to carry out the duties, close down a

studio or cubicle, wash up, etc.) and, in the event of an

emergency work requirement, management retains the right to

absorb this fifteen (15) minute period, or any portion of it,

into an individual's daily assignments. (underscoring

supplied).

August 12, 1971

11. Acquisto testified that a decision on 15 minute

preparation and clean-up times would require higher level

approval than operations level managers since it was a

pay-related matter. His testimony indicates that if that time

were not available, it could result in overtime hours. If a

technician could not work that last 15 minute period, additional

overtime would result for another technician to work that period.

Acquisto further testified that he did not know if the agreement

on August 12, 1971 was ever approved at a higher level.

12. In 1976 the parties entered into negotiations for a new

basic agreement. The Union proposed that a provision be included

granting 15 minutes for both preparation and clean-up

time. Management opposed the provision, as well as the practice,

and it proposed 10 minutes prep time and 5 minutes clean-up time.

The Union finally agreed to management's terms in that regard

after the parties bargained over the matter for several months.

The new agreement was executed on March 31, 1977 and contained

management's proposal. 14

13. After receiving numerous complaints from the technicians

re the 10-5 provision for prep and clean-up time, the Union

requested that the 1977 agreement be changed so as to delete that

provision. It was deleted by virtue of an amendment to the

agreement dated April 19, 1977. 15

14. As a result of budgetary problems as well as a reduction

in work force despite increased productivity, Respondent

concluded in 1986 that certain changes should be made in its

Broadcast operations. Included therein was a decision to

discontinue the 15 minutes preparation and clean-up times for the

technicians and to reduce it to 10-5 minutes respectively. It was

contemplated that this change would save approximately $90,000

per week in the Studio Branch.

15. By letter dated August 27, 1986 16 K. Gregg Prillaman,

Chief of management's Labor and Employee Relations Division,

advised union President Marco of its staffing and assignment

plans, which included a desire to reduce the scheduled breaks of

the technicians. Prillaman stated that the reduction of 15

minutes per day in break time could save the Agency more that

$180,000 per year in labor costs. A meeting on September 2 was

suggested to discuss the issues. The Union replied in a

letter dated August 28 in which it stated the document was

unacceptable, and it was unrealistic to expect the Union to

research and consider the matter by September 2.

16. Both Marco and Prillaman met on September 2. The

environment was hostile, with Marco stating he'd rather close

down the operation than agree to adverse conditions for the

technicians. There was no bargaining, or attempts to do so, in

regard to the 15-15 minutes preparation and clean-up time. At

another meeting on September 23 Prillaman hand-delivered to Marco

a copy of management's plan involving the rescheduling of the

studio technicians' eight hour day. It provided for the 10 minute

preparation time and 5 minute clean-up time. Unrefuted testimony

reflects that Marco referred to it as "a piece of shit". No

discussion on the merits of the plan took place.

17. The parties met again on September 25. At the meeting

Marco handed a letter signed by him to Prillaman which responded

to the materials presented to the Union a few days earlier. The

letter advised Prillaman that the Union felt that the 15 minute

time periods at the beginning and end of the shifts was subject

to mandatory substantive bargaining; that the Union agrees to

such bargaining; does not agree to the Agency's position; and

that an impasse will probably result from negotiations. No

statement was made by Marco as to why he considered the matter

negotiable.

18. During a meeting between Marco and Prillaman on

September 29 the latter gave the Union representative a letter

summarizing their failure to agree on the proposed changes.

Prillaman pointed out that the new 10-5 prep and clean-up time

schedule would not result in any other effects - nobody would

lose a job, the work schedules wouldn't change, nor would the

grades be affected. Prillaman stated that the Union official

refused to discuss the matter or point out any adverse result of

the change.

19. In a letter dated September 30 Prillaman wrote Marco

that, although the Union registered objection to the proposed

changes, Marco chose not to identify them specifically or to show

how the technicians would be adversely affected. The letter

recited Prillaman's understanding that Marco felt the issues were

negotiable in formal negotiation. The Union was also advised of

management's intention to implement the changes on October 26;

that it would be glad to discuss the proposed changes and

entertain impact and implementation proposals re any adverse

effects the Union felt would result therefrom; that

management would be glad to look at such proposals and enter into

direct negotiations, if appropriate.

20. By letter dated October 2 Marco informed Prillaman that

the Union deemed the 15 minute time period at the commencement of

the shift and at its end was a subject of negotiation prior to

August 9, 1972; that, under Section 704 of the Civil Service

Reform Act, it was a mandatory subject for bargaining despite

Section 7106 of the Statute. Marco further stated that the Union

requested negotiations over the Agency's proposals, and he

proposed the maintenance of status quo with regard to the

15-minute time periods at the beginning and end of the

technician's work day.

21. Prillaman replied by letter dated October 3 wherein he

stated his position "that the changes to be implemented are the

exercise of management rights and subject, therefore, only to

impact and implementation bargaining . . ." He reiterated that

Marco should point out the specific objections to the proposed

changes - that for any constructive dialogue or negotiations the

parties must be willing to meet and discuss their respective

views. Prillaman suggested another meeting to discuss the merits

of their respective positions, and the parties met again on

October 6. Prillaman testified that he invited Marco to negotiate

as to the substance of the decision; that he requested Marco to

submit evidence of pre-1972 bargaining, but the latter refused to

provide it.

22. Prillaman wrote Marco again on October 15 and sent him

two memos that management planned to send to employees re the

proposed changes of the scheduling process. One such memo was

from the Chief of the Operations Management Division to all

employees announcing that effective October 26 the 15 minute

preparation and shut-down periods of the technician shifts would

be changed to 10 and 5 minutes respectively for all elements of

the Division. Prillaman also wrote that management, as always,

would be pleased to entertain any impact and implementation

proposals from the Union.

23. In a reply letter dated October 15 Marco stated that the

Union reiterated its position that the changes were subject to

mandatory bargaining.

24. Record facts, as testified to by supervisor Acquisto,

indicates that issues involving pay were handled at top level

meetings; that all other matters could be and were discussed at

the operational levels. However, all of the conclusions

reached at the operating level had to be brought to the top level

for any decisions.

25. Prillaman testified, and I find, that he deemed the

granting of preparation and clean-up times for the technicians to

be a management right, and that the bargaining obligation by

Respondent only extended to impact and implementation. Further,

that although he invited proposals from the Union as to both

substance as well as impact and implementation during the course

of their meetings, proposals by the Union re substance would

"probably not" have been part of his willingness to negotiate. In

this connection, Prillaman testified as follows:

Q. Prior to the implementation of the change in

October, did you agree to negotiate over the

substance of this matter?

A. No.

Q. You did not. So, in fact, you did refuse to

negotiate over the substance of this matter

before it was implemented. Correct?

A. Yes. (underscoring supplied).

Q. And isn't it true that the Union had demanded

to bargain over the substance of this matter

prior to implementation?

A. Yes. (TR 264).

26. The changes were implemented on October 26, and the radio

technicians in studio and recording sections were placed on a new

scheduled time period: 10 minutes preparation time at the

beginning of the shift and 5 minutes clean-up time at the end of

the shift.

Conclusions

In contending that Respondent has failed and refused to

bargain concerning the change in the allotted time periods for

the technicians to prepare for, as well as clean up after, their

assignments, General Counsel relies upon Section 704 of the Civil

Service Reform Act of 1978. While not challenging that duty hours

are ordinarily part of management's right to assign work, it is

urged that the aforesaid statutory provision carves out an

exception where - as occurred between the parties herein - the

disputed change involves a matter which was subject to

negotiations between the parties prior to August 19, 1972. Thus,

it is argued the Respondent was not entitled to change the amount

of the technicians' preparation and clean-up time, which had been

established by past practice, without negotiating same with the

Union; and, further, management failed to negotiate said change

as required by Section 7116(a)(5) of the Statute.

Although it acknowledges that the aforesaid Section 704 of

the Civil Service Reform Act of 1978 requires an agency to

negotiate conditions of employment which were negotiated prior to

1972, Respondent insists that this provision does not affect

management's right herein to make the change unilaterally. It is

asserted that the matter in dispute had not been the subject of

negotiations which culminated in an agreement prior to August 19,

1972. Moreover, Respondent contends that, assuming arguendo,

preparation and clean-up periods were negotiated, management

fulfilled its duty via the 1977 negotiations and agreement. It is

argued that any bargaining rights preserved by Section 704 are

terminable by the negotiations after 1972. Finally, Respondent

takes the position that the Union refused to discuss the matter

at hand, and thus no duty devolved upon it to negotiate further

before implementing the change.

It seems quite evident that, unless Section 704 of the Civil

Service Reform Act (hereinafter referred to as 704) requires a

contrary result, there is no obligation by Respondent to

negotiate the decision re the time allotted the technicians for

preparation and clean-up periods. The Authority has considered a

similar provision which was the subject of a union proposal in

American Federation of State and Municipal Employees, Local 2477,

AFL - CIO and Library of Congress, 23 FLRA 204. In the cited

case the union proposed, inter alia, that the "Staff will be

allowed 10 minutes after the start and before the end of each

workday to change clothes." It was held that such proposal

directly interfered with the Agency's right under Section

7106(a)(2)(B) to assign work. See also American Federation

Government Employees, Local 2094, AFL - CIO and Veterans

Administration Medical Center, New York, N.Y., 19 FLRA 1027. 17

In 1972 Congress enacted the Government Employees Prevailing

Rate System Act, Pub. L. No. 92-392 (codified at 5 U.S.C.

5341-5349). Section 9(b)(1) of the Act provides that the

provisions of the Act establishing rate systems shall not be

interpreted in any way to nullify or otherwise affect the

provisions of existing negotiated agreements relating to wages,

terms and conditions of employment, and other benefits of

specified groups of prevailing rate employees. Parties covered by

9(b) are not confined merely to continuing existing agreements.

They may, in a new agreement, change those terms on the rights of

the parties as to the matters involved. This would also include

new terms in a renegotiated agreement.

Thus, as seen in such legislation, recognition was given to

the practice of some federal agencies to arrive at pay for

prevailing employees via collective bargaining. Moreover,

collective bargaining contracts in effect on August 19, 1972 were

preserved, as well as the rights of the parties to those

contracts to renew them and continue negotiations as to matters

involved therein.

The Civil Service Reform Act of 1978, in addition to

establishing a labor-management relations program in the public

sector, also established labor-management rights for prevailing

rate employees whose positions met certain criteria. Section 704

of this Act authorizes employees covered by section 9(b) of

Public Law 92-392 to continue negotiations re conditions of

employment and benefits, including pay practices, without regard

to any provisions of the CSRA which may be inconsistent with 704.

18

While the precise issue differed from the one at bar, the

Authority concluded in Columbia Power Trades Council and United

States Department of Energy, Bonneville Power Administration, 22

FLRA 998, that under 704 agencies must continue to negotiate on

terms and conditions 19 of employment for prevailing rate

employees where those terms and conditions were subject to

negotiation prior to August 19, 1972. That conclusion conformed

to the legislative intent in framing 704, as reflected in the

House Committee Report accompanying the House Committee bill

(H.R. 11280). This Report stated that it was the intention to

"preserve the existing right of certain Federal prevailing rate

employees to negotiate terms and conditions of employment" and to

"preserve unchanged the scope and substance of the existing

collective bargaining relationships."

Although it recognizes the applicability of 704 where

matters have been negotiated prior to August 19, 1972, Respondent

insists the record herein is barren of any evidence to support

such negotiations. While the matter of time periods for

technicians to prepare and clean-up may have been discussed,

management maintains that no negotiations leading to an

agreement ever occurred. It deems the meeting notes in 1966 and

1967 as mere discussions on diverse matters which were far

removed from negotiations, and Respondent points to the

testimonies of Prillaman and Michael Ostergard, former Union

president, attesting to the absence of pre-1972 negotiations on

preparation and clean-up times.

The undersigned disagrees that the said matter was not the

subject of negotiations between the parties prior to 1972. While

the 1966-1967 discussions may not have resulted in a written

agreement at that time as to preparation and clean-up times, the

notes reflect that they summarized "what was accomplished in the

way of agreements and/or disagreements. . ." Both documents (G.C.

4 and 13) were signed by the parties and each declared that "all

technician's assignments shall include adequate setup and

breakdown time". Apart from the binding effect of those

documents, the parties reduced to writing their agreement as to

this matter on August 12, 1971, and it was signed on that date by

Leon Jason, Chairman of IBS and Eugene Leonard, Chairman of the

Union. As indicated in G.C. Exhibit 2 it was agreed that the

management practice of scheduling a 15 minute period before and

immediately following an individual's assignment in the studio

and recording areas on a continual basis would continue. Further,

that the period was part of the individual's work day and would

allow for preparation of duties (to sign in, check his schedule,

walk to his assignment) and for closing down afterward as well as

washing up, etc. 20

Union representative Leonard, who was present at the August

12, 1971 meeting, testified that the 15 minute time periods to

prepare and clean up were considered and agreed upon at that

meeting. His testimony in this regard was corroborated by

management representative Acquisto who was also present at the

time. These factors, coupled with the agreement itself, is

persuasive that the subject matter of the dispute herein was

negotiated prior to August 19, 1972 and I so conclude.

Although it does not abandon its position that preparation

and clean-up time periods were not negotiated prior to August,

1972, Respondent advances two principal contentions in this

regard. It avers that (1) any duty to bargain possibly imposed

upon it by virtue of 704 was discharged in the 1977 negotiations

between the parties, as well as by subsequent negotiations; (2)

the Union refused to negotiate concerning the changes in the time

periods, which absolved Respondent of any obligation to bargain

thereon that was required by 704.

(1) Respondent maintains that the Congressional Policy

behind 9(b), as continued under 704, declares that employees

covered by the prevailing rate statute would lose that protection

when pre-1972 contract expire. In other words, it is contended

that the negotiability of subjects protected by 9(b) and 704 is

terminable after the subject is negotiated and the contractual

provisions expire or are not renewed.

An examination of the legislative history does not, in my

opinion, support such a view. The apparent purpose of 704, as

expanding upon 9(b), was to preserve for negotiation subject

matters which were negotiated before August 19, 1972. Such

preservation was to affect prevailing rate employees, as the

technicians herein, and would be applicable to general terms and

conditions of employment. Respondent contends it discharged its

duty, and the purpose of 704 was satisfied, when the parties

concluded an agreement in 1977 providing for 10 minutes

preparation and 5 minutes for clean-up. Further, Respondent

argues that since the parties included a clause therein which

recited that management deemed the subject a management right,

the Union waived its right to bargain thereafter concerning the

issue.

I do not agree that, upon negotiation by the parties of

subject matters protected under 704, no further duty devolves

upon management to negotiate such matters thereafter. No such

limitation is placed upon the protection afforded employees by

the statutory provision itself. Rather do I conclude, as the

Authority stated in International Brotherhood of Electrical

Workers, Local Union No. 611, AFL - CIO, and U.S. Department of

the Interior, Bureau of Reclamation Rio Grande Project, 26 FLRA

906, "the broad purpose of 9(b) and Section 704 was to preserve

the rights of employees covered by those sections to negotiate

for the continuation of benefits which they had received, without

regard to otherwise legal limitations." (underscoring supplied).

The obligation to bargain re such matters which were negotiated

before 1972 is not a one-time duty, as argued by Respondent.

Neither do I agree that the Union waived its right to continue

negotiating the matter after 1977 based on the declaration by

management that, even though it deleted the 10-5 provision from

the 1977 agreement, it was not reverting to the 15-15 minutes and

considered the decisions a management prerogative. Waivers by a

party must be clear and unequivocal. Department of Labor,

Employment Standards Administration, Wage and Hour Division, 21

FLRA 484. I find no support for the conclusion that, having

negotiated the matter in 1977, the Union waived its right to ever

negotiate the issue ever again. Moreover, it is not supported by

Respondent's assertion of its right to assign work as ultimately

including the preparation and clean-up time periods which, under

704, are preserved for negotiation.

(2) Management insists that it was desirous of negotiating

the time periods for preparation and clean-up time for the

technicians but the Union foreclosed such negotiation by its

adamant behavior and refusal to discuss the matter.

Hence, it is urged or argued, no duty to bargain re the matter

was required of Respondent.

While the record does reveal that Prillaman offered on

several occasions to discuss the matter with Marco, it also

belies any intention on the part of management to negotiate the

substance thereof with the Union. Thus, on October 3, 1986

Prillaman wrote Marco that the change was a management right and

subject only to impact and implementation bargaining. On October

15, 1986 Prillaman sent Marco memos which would be sent to

employees announcing that effective October 26, 1986 the 15

minute preparation and clean-up times would be changed to 10 and

5 minutes respectively. In the same letter he advised Marco that,

as always, management would be pleased to entertain any impact

and implementation proposals from the Union. Moreover, at the

hearing herein Prillaman testified that the bargaining

obligations of Respondent extended only to impact and

implementation; that although he invited proposals from the Union

to substance, as well as impact and implementation, proposals by

the Union as to substance would "probably not" have been part of

his willingness to negotiate.

It is elementary that an agency which intends to effect

changes in working conditions must not only notify the bargaining

agent beforehand, but a reasonable opportunity to negotiate

thereon must be afforded the union. The record herein reveals

that Respondent, despite its statements to Marco that management

would be willing to listen to his proposals and discuss the

change in preparation and clean-up times, never intended to do

more than negotiate as to the impact and implementation thereof.

In addition to the foregoing testimony, Prillaman also testified

that he did refuse to negotiate over the substance of the change

• that he did not agree to negotiate thereon.

Thus, Respondent's argument that it offered the Union, in

good faith, an opportunity to negotiate the change falls on deaf

ears. Since, in reality, management did not intend to bargain on

the decision itself, it can scarcely claim that any failure to

fulfill its duty in that regard stemmed from the Union's refusal

to participate in discussions on the matter. Further, I am not

persuaded that the Union waived its right to require

negotiations. It does not appear that the Union herein clearly

refused to bargain re the substance of the change in an

unequivocal manner. While Marco was upset about the announced

change and made some caustic remarks to management about its

decision to effect the change, record facts indicate the Union

did not abandon its position that the matter was

negotiable. This is evidenced in the Union representative's

letters of September 25, 1986 and October 2, 1986 wherein Marco

stated that the Union considered the change to be a mandatory

subject for bargaining. Moreover, at the hearing herein

Prillaman, when asked whether it was not true that the Union

demanded to bargain over the substance of the matter before

implementation, answered in the affirmative. Accordingly, I

reject the contention that the Union refused to negotiate the

change so as to excuse Respondent from its duty to bargain over

the decision itself.

In sum, I conclude that the parties negotiated, prior to

August 19, 1972, the matter concerning preparation and clean-up

times for the radio technicians in the studio and recording

areas; that, pursuant to Section 704 of CSRA of 1978, the subject

continued to be a bargainable matter as to the decision to change

the practice existing for about 20 years; that such decision was

not affected by Section 7106 of the Statute so as to constitute a

management right to assign work, and therefore to relieve

Respondent of its obligation to negotiate the substance of the

change from 15 minutes preparation time and 15 minutes clean-up

time to lo minutes and 5 minutes respectively; and that

Respondent refused and failed to negotiate the change in

violation of Section 7116(a)(1) and (5) of the Statute.

Remedy

The Authority has made it clear that where an agency has

violated the Statute by refusing to negotiate its decision to

change working conditions a status quo ante remedy is appropriate

absent special circumstances. Veterans Administration West Los

Angeles Medical Center, Los Angeles, California, 23 FLRA 278,

(and cases cited therein). In the case at bar Respondent asserts

that assuming arguendo it did not fulfill the duty to bargain re

the decision to change the preparation and clean-up times for the

technicians, such a remedy is inappropriate. As support for such

contention, mention is made of the fact that the daily shifts

would have to be changed to meet programming requirements, and

the rescheduling of program coverage would be necessitated.

Further, Respondent adverts to the collective bargaining

agreement which entitles technicians to pick shifts twice a year,

and it argues that the normal remedy would "trigger a third shift

pick" inconsistent with that agreement.

These arguments are rejected, and I do not agree that such

special circumstances have been shown to exist which

justify the denial of a status quo ante remedy. Note is taken

that management never raised these points of alleged hardship in

1977, nor on other occasions where the matter was discussed.

Furthermore, the shifts of the radio technicians remained the

same, the change involving the 5 minutes beforehand, as well as

the 10 minutes at the end, which were afforded the employees to

prepare and clean up. Nothing in the record reflects the nature

of any especial hardship experienced by Respondent when it made

the change on October 26, 1986, and it is assumed the same

circumstances would exist in returning to the practice of 15

minute periods for preparation and clean-up actions. In a recent

case, Department of Health and Human Service, Public Health

Service, Health Resources and Services Administration, Oklahoma

City Area. Indian Health Service, Oklahoma City, Oklahoma, 31

FLRA No. 33, a status quo ante remedy was ordered even though

it required restoring a policy allowing smoking at Respondent's

hospital and facilities. Despite its harmful effects, smoking

thereat was deemed a condition of employment, and the remedy was

required so as not to render meaningless the obligation to

bargain. Accordingly, I still recommend a similar remedy

herein.

Having concluded that Respondent violated Sections

7116(a)(1) and (5) of the Statute by not negotiating its decision

to change the preparation and clean-up time periods for radio

technicians, I recommend the Authority issue the following:

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations

Authority's Rules and Regulations and section 7118 of the

Statute, it is hereby ordered that the United States Information

Agency, voice of America, shall:

1. Cease and desist from:

(a) Changing the preparation time and clean-up time of the

radio technicians in the studio and recording areas without first

notifying the National Federation of Federal Employees, Local

1418, the exclusive representative of its employees, and

affording it the opportunity to bargain, to the extent consistent

with law and regulations, on the decision to effectuate such

change.

(b) In any like or related manner interfering with,

restraining or coercing its employees in the exercise of their

rights assured by the Federal Service Labor - Management

Relations Statute.

2. Take the following affirmative action in order to

effectuate the purposes and policies of the Federal service Labor

• Management Relations Statute:

(a) Rescind the 10 minute preparation time and 5 minute

clean-up time for radio technicians in the studio and recording

areas, and reestablish the 15 minutes preparation time and 15

minutes clean-up time for those unit employees.

(b) Notify the National Federation of Federal Employees,

Local 1418, the exclusive representative of its employees, of any

intention to change the preparation and clean-up time for radio

technicians in the studio and recording areas and, upon request,

bargain with such representative, to the extent consistent with

law and regulations, on any decision to effectuate such change.

(c) Post at its Washington Plant, in Washington, D.C. 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 Director, or a designee, and shall be posted and

maintained for 60 consecutive days thereafter, in conspicuous

places, including all bulletin boards and other places where

notices to employees are customarily posted. Reasonable steps

shall be taken to insure that such Notices are not altered,

defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and

Regulations, notify the Regional Director, Region 3, Federal

Labor Relations Authority, 1111 - 18th Street, N.W., 7th Floor,

P.O. Box 33758, Washington, D.C. 20033-0758, in writing, within

30 days from the date of this Order, as to what steps have been

taken to comply herewith.

WILLIAM NAIMARK

Administrative Law Judge

Dated: March 15, 1988

Washington, D.C.

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 STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT change the preparation time and clean-up time of the

radio technicians in the studio and recording areas without first

notifying the National Federation of Federal Employees, Local

1418, the exclusive representative of our employees, and

affording it the opportunity to bargain, to the extent consistent

with law and regulations, on the decision to effectuate such

change.

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 rescind the 10 minute preparation time and 5 minute

clean-up time for radio technicians in the studio and recording

areas, and reestablish the 15 minutes preparation time and 15

minutes clean-up time for those unit employees.

WE WILL notify the National Federation of Federal Employees,

Local 1418, the exclusive representative of our employees, of any

intention to change the preparation and clean-up time for radio

technicians in the studio and recording areas and, upon request,

bargain with such representative, to the extent consistent with

law and regulations, on any decision to effectuate such change.

__________

(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 any of its provisions, they may communicate

directly with the Regional Director of the Federal Labor

Relations Authority, Region 3, whose address is; 1111 - 18th

Street, N.W., 7th Floor, P.O. Box 33758, Washington, D.C.

20033-0758, , and whose telephone number is: (202) 653-8500.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)

Footnote 1 Authority's Decision

The Agency's request for oral argument pursuant

to section 2429.6 of the Authority's Rules and Regulations is

denied. Oral argument before the Authority is not warranted

because there is a sufficient record before us on which to base a

decision. The Agency's request to file a reply brief is also

denied.

Footnote 2 Authority's Decision

The Respondent identified two different

exceptions as "Exception No. 6." We will refer to those

exceptions in this decision as "Exception No. 6(1) and

"Exception No. 6(2)."

_____________

Footnote 1 ALJ's Decision

General Counsel also filed, along with a brief, a

Motion To Correct The Transcript. No objections having been

interposed, and it appearing that such proposed corrections are

proper, that Motion is granted as requested.

Footnote 2 ALJ's Decision

The facts as set forth by Respondent are attested

to in an affidavit and submitted with the Opposition To General

Counsel's Motion.

Footnote 3 ALJ's Decision

Although no postmark at all was put on the

document in the Veterans Administration case, supra, the

Authority concluded it would effectuate the purposes of the

Statute to waive the expired time limit.

Footnote 4 ALJ's Decision

The brief of Respondent, together with the Errata

filed thereafter is accepted by the undersigned.

Footnote 5 ALJ's Decision

Both the 15 minute preparation time and the 15

minute clean-up time are part of the technician's paid eight hour

day. Thus, the 30 minutes allotted for the stated purposes is

included within the eight hours duty time.

Footnote 6 ALJ's Decision

A stand-by room was reserved for the technicians

to sign-in and out. As a result of a change in procedure, the

employee now notes his departure time when signing in before

reporting to his assignment. However, to check the schedule the

technician will still return to the stand-by room before leaving

the premises.

Footnote 7 ALJ's Decision

The Notes were prepared by management. Robert

Oringel, President of the Union, attended with two other Union

representatives. One of the latter, John Celebre, Vice-President

of the Union, signed on its behalf. Russell F. Pinney, Division

Chief attended with three others, and he signed on behalf of

management. The abbreviation IBS stands for "International

Broadcast Service", which is an element of VOA.

Footnote 8 ALJ's Decision

Oringel signed for the Union and Pinney executed

it on behalf of management.

Footnote 9 ALJ's Decision

The stated purpose of this meeting was to

prepare a draft of the proposed agreement between the Agency and

the Union to be presented to IPTA for their approval before

formally providing the set of Respondents to IPT ratification.

(IPTA refers to the VOA Personnel Office - IPT refers to USIA

Personnel Office).

Footnote 10 ALJ's Decision

Article VIII, Section 2 of the Agreement does

provide for the continuation in effect of established practices

and policies in effect before the agreement. This includes the

conclusions reached at meetings between the Union and Agency

representatives as reflected in the written meeting notes.

Footnote 11 ALJ's Decision

At the hearing General Counsel offered in

evidence a typewritten but unsigned document (G.C. 3) to support

the argument that a meeting was held on May 11, 1971 at which the

matter was discussed. The undersigned accepted it solely as a

document found in the Union's files, but not to prove that the

matter was discussed or to verify what took place on that date.

The document, entitled "Labor-Management Meeting", has 11 names

typed in as apparent representatives of the parties. Eugene

Leonard, whose name appears thereon, testified he was present at

some meetings where the prep and clean-up time was discussed, but

he didn't remember the date. Ernest Acquisto, whose name also

appears thereon, testified he was at this meeting but doesn't

recall what was discussed. While the document shows it was

prepared by a VOA manager, C.B. Groce, he did not testify at the

hearing. The exhibit was taken from the files by Union President

Gary Marco. Acquisto states he never saw it before the hearing.

General Counsel contends that, under Federal Rules of Evidence,

801(a)(2) it constitutes an admission, and under 803 (6) it is an

exception to heresay as a business record. With respect to the

latter contention, neither the custodian of the document nor a

qualified witness testified as to its identity or preparation,

nor whether the document was made at or near the time of the

event. It was apparently a management record - not the Union's -

and I cannot conclude it was kept in the regular course of

"business activity". Neither do I find any support for the veiw

that G.C. 3 is shown to be an admission against Respondent. No

testimony reflects such conclusion. Thus, I do not find that the

subject at issue was discussed or negotiated on May 11, 1971 by

the parties.

Footnote 12 ALJ's Decision

Two subsequent basic agreements were executed

between the parties covering the unit employees: One on April 25,

1979, the other on March 14, 1984 for a four year term.

Footnote 13 ALJ's Decision

Record facts show that management stated it was

not thereby agreeing to return to the 15-15 arrangement and it

considered such scheduling to be a management decision. The

record also reflects the Union hoped that, notwithstanding the

10-5 deletion, the former practice of 15 minutes for prep and for

clean-up time would be resumed. Nevertheless, the practice of

15-15 preparation and clean-up time for radio technicians did

continue until 1986.

Footnote 14 ALJ's Decision

Unless otherwise indicated, all dates

hereinafter mentioned occurred in 1986.

Footnote 15 ALJ's Decision

The proposal, which was found to be outside the

duty to bargain, stated: "Employees of the bargaining unit will

be given 15 minutes after starting time to reach their duty

station. Employees will be given 15 minutes before the end of

their shift for personal hygiene and changing of clothing."

Footnote 16 ALJ's Decision

As codified at 5 U.S.C. 5343, it provides:

Sec. 704. (a) Those terms and conditions of employment and other

employment benefits with respect to Government prevailing rate

employees to whom section 9(b) of Public Law 92-392 applies which

were the subject of negotiation in accordance with prevailing

rates and practices prior to August 19, 1972, shall be negotiated

on and after the date of enactment of this Act in accordance with

the provisions of section 9(b) of Public Law 92-392 without

regard to any provision of chapter 71 of title 5, United States

Code (as amended by this title), to the extent that any such

provision is inconsistent with this paragraph.

Footnote 17 ALJ's Decision

In the Bonneville case, supra, the Agency

contended that 704 was intended only to preserve the right of

affected employees to negotiate on pay related matters; that it

did not authorize bargaining on matters unrelated to pay and pay

practices. This contention was rejected by the Authority.

Further, it was determined that 704 permitted changes in

previously negotiated subject matters without sacrificing the

protection afforded by that statutory provision.

Footnote 18 ALJ's Decision

It also provided that management retained the

right, in the event of an emergency work requirement, to absorb

the 15 minute periods into an individual's daily assignments.