Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma (Respondent) and American Federation of Government Employees, Local 916, AFL-CIO (Complainant) (Authority decision, June 27, 1980)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. 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). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

A union complained that Tinker Air Force Base had committed an unfair labor practice. The administrative law judge recommended dismissal. The Authority adopted that result and rejected an additional bypass theory because it had not been properly raised and fully litigated at the hearing. The complaint was dismissed.

Decision snapshot

• Authority: 5 U.S.C. § 7118.
• Outcome: Judge’s dismissal adopted; complaint dismissed.
• Key point: An unlitigated bypass claim could not support a violation finding.

Full text (FLRA public release)

[ v03 p512 ]

03:0512(82)CA

The decision of the Authority follows:

3 FLRA No. 82

OKLAHOMA CITY AIR LOGISTICS CENTER,
TINKER AIR FORCE BASE, OKLAHOMA
Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 916
Complainant

Case No. 6-CA-62

DECISION AND ORDER

THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD
NOT ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT, AND
RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
THEREAFTER, THE GENERAL COUNSEL FILED EXCEPTIONS WITH RESPECT TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.

PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 C.F.R. PART XIV(1980)) AND SECTION 7118 OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135), THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER, AND THE ENTIRE RECORD IN THE
SUBJECT CASE, INCLUDING THE GENERAL COUNSEL'S EXCEPTIONS, THE AUTHORITY
HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATION.

IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THE AUTHORITY
CONCLUDES THAT A FINDING OF A VIOLATION OF SECTION 7116(A)(1) OF THE
STATUTE CANNOT BE PREDICATED UPON THE ALLEGED BYPASS OF THE UNION BY THE
AGENCY. AS NOTED IN THE RECOMMENDED DECISION OF THE ADMINISTRATIVE LAW
JUDGE, THIS ISSUE WAS FIRST RAISED BY THE GENERAL COUNSEL IN HIS
POST-HEARING BRIEF, AND IT DOES NOT APPEAR THAT THE AGENCY WAS
ADEQUATELY APPRISED OF THE ISSUE, OR THAT THE MATTER WAS FULLY
LITIGATED, AT THE HEARING. UNDER THESE CIRCUMSTANCES, THE AUTHORITY IS
PRECLUDED FROM FINDING THAT THE AGENCY VIOLATED SECTION 7116(A)(1) OF
THE STATUTE BY THE BYPASS OF THE UNION CLAIMED BY THE GENERAL COUNSEL.

ORDER

IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 6-CA-62 BE, AND
IT HEREBY IS, DISMISSED.

ISSUED, WASHINGTON, D.C., JUNE 27, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

STEVEN M. ANGEL, ESQUIRE

OFFICE OF THE GENERAL COUNSEL

FEDERAL LABOR RELATIONS AUTHORITY

REGION VI, P.O. BOX 2640

DALLAS, TEXAS 75231

FOR THE GENERAL COUNSEL

MAJOR MICHAEL J. PETHERICK, ESQUIRE

LABOR RELATIONS COUNSEL

OFFICE OF THE STAFF JUDGE ADVOCATE

OKLAHOMA CITY AIR LOGISTICS CENTER

TINKER AIR FORCE BASE, OKLAHOMA 73145

FOR THE RESPONDENT

BEFORE: GARVIN LEE OLIVER

ADMINISTRATIVE LAW JUDGE

DECISION AND ORDER

STATEMENT OF THE CASE

THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUE, 92 STAT. 1191, 5 U.S.C. SECTION 7101 ET SEQ., AS A
RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT DATED AUGUST 31, 1979, AND
AN AMENDED COMPLAINT DATED NOVEMBER 6, 1979, FILED BY THE REGIONAL
DIRECTOR, REGION 6, FEDERAL LABOR RELATIONS AUTHORITY, DALLAS, TEXAS
AGAINST THE OKLAHOMA CITY AIR LOGISTICS CENTER (AFLC), TINKER AIR FORCE
BASE, OKLAHOMA-(RESPONDENT).

THE AMENDED COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED
5 U.S.C. SECTION 7116(A)(1) AND (5) BY UNILATERALLY ANNOUNCING A CHANGE
IN EXISTING CONDITIONS OF EMPLOYMENT CONCERNING FLEXITIME OR OR ABOUT
APRIL 16, 1979 AND, THEREAFTER, BY UNILATERALLY IMPLEMENTING A FLEXITIME
PROGRAM ON OR ABOUT MAY 28, 1979 WITHOUT FURNISHING THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 916 (CHARGING PARTY
OR UNION) AN OPPORTUNITY TO BARGAIN ON SUCH CHANGES OR ON THE IMPACT AND
IMPLEMENTATION OF SUCH CHANGES.

RESPONDENT'S ANSWER DENIED THE ALLEGATIONS AND ASSERTED THAT THE
OBLIGATION TO BARGAIN WAS MODIFIED BY A MEMORANDUM OF UNDERSTANDING
BETWEEN RESPONDENT AND THE UNION SIGNED ON AUGUST 19, 1977.

A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED AT OKLAHOMA
CITY, OKLAHOMA. THE GENERAL COUNSEL, FLRA AND THE RESPONDENT WERE
REPRESENTED BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE
RELEVANT EVIDENCE, EXAMINE AND CROSS-EXAMINE WITNESSES, AND FILE
POST-HEARING BRIEFS.

BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
FACTS, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.

FINDINGS OF FACT

1. ON JULY 22, 1976 RESPONDENT AND THE UNION EXECUTED A COLLECTIVE
   BARGAINING AGREEMENT EFFECTIVE UNTIL JULY 21, 1979. (JOINT EX. 1).

2. THE AGREEMENT PROVIDED, IN PART, AS FOLLOWS:

ARTICLE XIX

WORK SCHEDULES

SECTION A: DEFINITIONS:

. . . .

(2) TOUR OF DUTY: THE DAYS OF THE ADMINISTRATIVE WORKWEEK THAT AN
EMPLOYEE IS REGULARLY

SCHEDULED TO WORK.

(4) HOURS OF WORK: THE HOURS OF EACH WORKDAY IN THE ADMINISTRATIVE
WORKWEEK THAT AN

EMPLOYEE IS REGULARLY SCHEDULED TO WORK.

(5) SHIFTS: DAY SHIFT, SWING SHIFT AND GRAVEYARD SHIFT.

. . . .

SECTION C:

. . . BEFORE ANY CHANGES IN SHIFTS OR TOURS OF DUTY ARE PUT INTO
EFFECT, THE EMPLOYER WILL

NOTIFY AND AFFORD THE UNION AN OPPORTUNITY TO MEET AND CONFER ON SUCH
CHANGES . . .

ARTICLE XLI

NEGOTIATIONS DURING THE TERM OF THIS AGREEMENT

SECTION A. THE EMPLOYER AND THE UNION, THROUGH APPROPRIATE
REPRESENTATIVES, SHALL MEET AND CONFER IN GOOD FAITH WITH RESPECT TO
PERSONNEL POLICIES AND PRACTICES, AND MATTERS AFFECTING WORKING
CONDITIONS THAT ARE NOT COVERED BY THIS AGREEMENT . . . THE PARTIES MAY
NEGOTIATE AN AGREEMENT, OR ANY QUESTION ARISING THEREUNDER . . . AND
EXECUTE A WRITTEN AGREEMENT OR MEMORANDUM OF UNDERSTANDING.

SECTION B. ALL WRITTEN AGREEMENTS OR MEMORANDUMS OF UNDERSTANDING
REACHED UNDER THE PROVISIONS OF THIS ARTICLE SHALL BE ENFORCEABLE UNDER
THE PROVISIONS OF THE NEGOTIATED GRIEVANCE PROCEDURE.

. . . .

SECTION E. FOR THE PERIOD OF ITS DURATION, THIS AGREEMENT WILL HAVE
THE FULL FORCE AND EFFECT OF REGULATIONS WITHIN THE UNIT. DURING THIS
PERIOD, THE AGREEMENT WILL BE MODIFIED ONLY BY THE PASSAGE OF
LEGISLATION, THE ISSUANCE OF CIVIL SERVICE COMMISSION OR OTHER
CONTROLLING REGULATIONS, THE ISSUANCE OF AIR FORCE REGULATIONS REQUIRED
BY LAW OR OTHER APPROPRIATE AUTHORITIES, OR BY MUTUAL AGREEMENT OF THE
PARTIES.

SECTION F. ANY PROPOSED CHANGE IN EXISTING AGENCY REGULATIONS
RESULTING IN CHANGES IN PERSONNEL POLICIES, PRACTICES, OR MATTERS
AFFECTING WORKING CONDITIONS NOT SPECIFICALLY COVERED IN THIS AGREEMENT
WILL NOT BE IMPLEMENTED WITHOUT PRIOR NOTIFICATION TO THE UNION . . .
THE UNION MAY REQUEST A MEETING TO MEET AND CONFER WITH THE EMPLOYER . .
.

(3) ONLY THE DESIGNATED UNION REPRESENTATIVE SHALL HAVE THE AUTHORITY
TO BIND THE UNION ON SUCH ACCORDS THAT MAY BE REACHED AT THESE MEETINGS.
THESE ACCORDS MAY NOT CONFLICT WITH EXISTING PROVISIONS OF THIS
AGREEMENT. (JOINT EX. 1).

3. IN AUGUST 1977 RESPONDENT AND THE UNION MET TO NEGOTIATE THE
   IMPLEMENTATION OF FLEXITIME AT THE OKLAHOMA CITY AIR LOGISTICS CENTER.
   (TR. 54; 118; 142). MR. PAUL KETCHERSIDE, PRESIDENT OF THE LOCAL,
   REPRESENTED THE UNION. RESPONDENT WAS REPRESENTED BY JOSEPH G. LYNCH,
   PRINCIPAL SPOKESMAN, CHARLES L. WHITLEY, CHIEF NEGOTIATOR, DALE
   WILLIAMS, LABOR RELATIONS OFFICER, AND ARTHUR SANDERSON. (TR. 54-55;
   122; 142). THE PARTIES CAREFULLY WENT OVER A PACER SCHEDULE PLAN WHICH
   HAD BEEN PREPARED BY MANAGEMENT TO INTRODUCE THE CONCEPT OF FLEXITIME.
   (TR. 55; 122). I.B.1.B. AND C. OF THE PROPOSED PLAN READ AS FOLLOWS:

B. THE DETERMINATION BASED ON DECISION ANALYSIS TO IMPLEMENT OR
MODIFY FLEXITIME AT ANY ORGANIZATIONAL LEVEL IS RESERVED TO THE
EMPLOYER, IN ORDER TO MEET THE PECULIAR OPERATIONAL REQUIREMENTS OF AN
ORGANIZATION. IN SUCH CASES, THE UNION WILL BE CONSULTED ON THE
DECISION TO IMPLEMENT OR MODIFY FLEXITIME. WHERE FLEXITIME IS CANCELLED
IN AN ORGANIZATION, MANAGEMENT WILL NOTIFY THE UNION IN ACCORDANCE WITH
ARTICLE XLI OF THE 1976 LABOR-MANAGEMENT AGREEMENT AND PROVIDE THE UNION
WITH AN OPPORTUNITY TO NEGOTIATE.

C. THE EMPLOYER MUST RETAIN THE RIGHT TO MODIFY THE APPLICATION OF
FLEXITIME TO A PARTICULAR POSITION OR TO ELIMINATE A POSITION OR
POSITIONS FROM COVERAGE UNDER AN ORGANIZATION'S FLEXITIME PROGRAM IN
ORDER TO EFFICIENTLY AND EFFECTIVELY MEET THE ORGANIZATION'S OPERATIONAL
REQUIREMENTS. SUCH ACTION WILL BE BASED UPON OPERATIONAL REQUIREMENTS
AND WILL NOT BE ARBITRARY OR CAPRICIOUS. (JOINT EX. 11).

4. AN ORAL CLARIFICATION OF SOME OF THE LANGUAGE CONTAINED IN THE
   PLAN WAS PROVIDED BY RESPONDENT. (TR. 55; 122; 143-144). THE
   OBLIGATION TO "CONSULT" WAS DEFINED AS GIVING NOTICE TO THE UNION,
   SOLICITING THEIR VIEWS, COMMENTS, AND INPUTS, GIVING THEIR VIEWS,
   COMMENTS, AND INPUTS CONSIDERATION, AND THEN HAVING GIVEN THAT
   CONSIDERATION, MANAGEMENT WAS FREE TO IMPLEMENT THE DECISION, WHICH
   EITHER ACCOMMODATED THE UNION'S VIEWS, OR WHICH DID NOT FOR WHATEVER
   REASONS MANAGEMENT HAD. "NEGOTIATION", ON THE OTHER HAND, WAS DEFINED
   AS THE EXCHANGE OF PROPOSALS IN THE EFFORT TO REACH AGREEMENT, AND
   FAILING AGREEMENT, WAITING TO IMPLEMENT ANY CHANGES UNTIL SUCH TIME AS
   EITHER THE UNION ELECTED NOT TO GO TO THE IMPASSES PANEL, OR UNTIL THE
   IMPASSES PANEL ISSUED ITS RECOMMENDATIONS. (TR. 122-123).

5. I.B.1.C OF THE PROPOSED PLAN GAVE THE UNION THE MOST CONCERN.
   (TR. 55-56; 124; 146). THE UNION WAS CONCERNED THAT SINCE THE
   EMPLOYER, UNDER THE PROPOSAL, WOULD "RETAIN THE RIGHT TO MODIFY THE
   APPLICATION OF FLEXITIME TO A PARTICULAR POSITION OR TO ELIMINATE A
   POSITION OR POSITIONS FROM COVERAGE," SOME ARBITRARY OR CAPRICIOUS
   MANAGER COULD ONE BY ONE ELIMINATE OR CANCEL FLEXITIME FOR INDIVIDUALS
   WITHIN A GIVEN UNIT OR ORGANIZATION UNTIL IT WAS EFFECTIVELY CANCELLED
   FOR THE ENTIRE ORGANIZATIONAL ELEMENT WITHOUT THE OBLIGATIONS AGREED TO
   IN PARAGRAPH I.B.1.B. (TR. 58; 124-125; 146-147). IT WAS AGREED THAT
   PARAGRAPH I.B.1.B WOULD REMAINED UNCHANGED, BUT PARAGRAPH I.B.1.C. WOULD
   BE CHANGED AS FOLLOWS:

C. WHEN NECESSARY TO MEET OPERATIONAL REQUIREMENTS OF THE
ORGANIZATION, THE EMPLOYER MAY

EXCLUDE INDIVIDUAL POSITIONS FROM THE OPERATIONS OF THIS PLAN OR
MODIFY THE APPLICATION OF THE

PLAN TO INDIVIDUAL POSITIONS. HOWEVER, WHEN ALL OF THE POSITIONS OF
AN ORGANIZATION SUBUNIT

OR LARGER) ARE AFFECTED, THE EMPLOYER WILL COMPLY WITH PARAGRAPH (B)
ABOVE. ACTIONS TAKEN

UNDER THIS PARAGRAPH WILL BE BASED UPON OPERATIONAL REQUIREMENTS AND
WILL NOT BE ARBITRARY OR

CAPRICIOUS. (JOINT EX. 4B, 11).

6. ON AUGUST 19, 1977, THE PARTIES, BY PAUL KETCHERSIDE FOR THE
   UNION AND CHARLES WHITLEY FOR RESPONDENT, EXECUTED A MEMORANDUM OF
   UNDERSTANDING AS FOLLOWS:

THIS MEMORANDUM OF UNDERSTANDING IS EXECUTED BY AFGE LOCAL 916 AND
THE OKLAHOMA CITY AIR

LOGISTICS CENTER TO INDICATE AGREEMENT ON A FLEXITIME PLAN TITLED
PACER SCHEDULE, OC-ALC

77-25.

IT IS UNDERSTOOD BY THE PARTIES THAT THOSE PORTIONS OF THE PLAN WHICH
CONSIST OF PERSONNEL

POLICIES AND PRACTICES AFFECTING WORKING CONDITIONS OF EMPLOYEES IN
THE BARGAINING UNIT ARE

ENFORCEABLE UNDER THE 1976 LABOR-MANAGEMENT AGREEMENT BETWEEN THE
PARTIES. (JOINT EX. 4A).

7. PARAGRAPH 2 OF THE MEMORANDUM OF UNDERSTANDING WAS INSERTED AT
   THE REQUEST OF THE UNION TO ENSURE THAT DISPUTES UNDER THE FLEXITIME
   PROCEDURE WOULD BE SUBJECT TO THE GRIEVANCE AND ARBITRATION PROVISIONS
   OF THE 1976 AGREEMENT. (TR. 125-126; 147). /1/

8. ON APRIL 13, 1979, RESPONDENT SENT THE UNION A LETTER NOTIFYING
   THE UNION OF THE RESPONDENT'S INTENT TO MODIFY THE FLEXITIME PLAN AT THE
   CENTER-WIDE LEVEL AND PROVIDING THE UNION "AN OPPORTUNITY TO CONSULT ON
   THIS MODIFICATION IF YOU DESIRE." THE PROPOSED MODIFICATION CONSISTED OF
   CHANGING THE CORE HOURS, FLEXIBLE TIME PERIODS, AND FLEXIBLE LUNCH
   PERIOD. IT WAS NOTED THAT THE UNION COULD PROVIDE COMMENTS AND
   SUGGESTIONS PRIOR TO IMPLEMENTATION, AND THAT THE MODIFICATIONS WOULD BE
   EFFECTIVE APRIL 30, 1979. (JOINT EX. 5).

9. DURING THE PERIOD MARCH 19 TO APRIL 13, 1979, RESPONDENT TOOK
   SOME SURVEYS OF EMPLOYEE ATTITUDES ABOUT THE FLEXITIME PROGRAM AND THE
   PROPOSALS. SOME SUPERVISORS ASKED THEIR EMPLOYEES HOW THEY LIKED
   FLEXITIME, WHETHER IT WAS SUITING THEIR NEEDS, AND WHETHER THEY HAD ANY
   IDEAS ABOUT IMPROVING THE PROGRAM. (TR. 32-33; 90; JOINT EX. 10).
   PERSONNEL RESPONDING GENERALLY INDICATED A DESIRE TO HAVE THE FLEXITIME
   PROGRAM REMAIN UNCHANGED AND INDICATED AN EXPECTED ARRIVAL TIME OF 7:30
   A.M. WITH A 30-MINUTE LUNCH PERIOD SHOULD THE PROPOSED MODIFICATIONS BE
   MADE TO THE FLEXITIME PROGRAM. (JOINT EX. 8). THE UNION WAS NOT GIVEN
   AN OPPORTUNITY TO BE PRESENT AT THESE MEETINGS. (TR. 33).

10. FOLLOWING THE APRIL 13, 1979 LETTER, SOME SUPERVISORS HELD
    MEETINGS WITH THEIR EMPLOYEES, SHOWED THEM COPIES OF THE LETTER, ADVISED
    THEM OF THE PROPOSALS, THAT A CHANGE IN FLEXITIME MIGHT BE MADE, AND
    THAT THE EMPLOYEES MIGHT WANT TO MAKE APPROPRIATE ARRANGEMENTS. (TR.
    31-32; 62; 90). THE UNION WAS NOT NOTIFIED OF SUCH MEETINGS. (TR.
    32).

11. ON APRIL 20, 1979 AN ARTICLE CONCERNING FLEXITIME APPEARED IN
    THE BASE NEWSPAPER. THE ARTICLE, INITIATED BY RESPONDENT, PUBLICIZED
    THE FACT THAT RESPONDENT WAS CONSIDERING MODIFYING FLEXITIME AND THAT
    THE UNION HAD BEEN FURNISHED THE APPROPRIATE PAPER WORK CONCERNING THE
    PROPOSED CHANGE. (TR. 91, 105).

12. ON APRIL 16, 1979 PAUL KETCHERSIDE, PRESIDENT OF THE UNION, AND
    JOHN R. KELLEY, RESPONDENT'S LABOR RELATIONS OFFICER, MET TO DISCUSS THE
    REASONS FOR THE CHANGE AND WHAT THE RESPONDENT INTENDED IN ITS APRIL 13,
    1979 LETTER CONCERNING "AN OPPORTUNITY TO CONSULT." THE UNION EMPHASIZED
    ITS DESIRE TO NEGOTIATE THE MODIFICATION AT THIS TIME AND IN A LETTER TO
    RESPONDENT DATED APRIL 16, 1979. (TR. 46-47; 61-62).

13. ON APRIL 23, 1979 RESPONDENT AND THE UNION MET. RESPONDENT
    OUTLINED ITS REASONS FOR THE MODIFICATION AND INDICATED IT WAS AT THE
    MEETING TO FULFILL ITS OBLIGATION OF CONSULTATION. MR. KETCHERSIDE OF
    THE UNION INDICATED IT WAS THERE TO NEGOTIATE, BUT, IN ANY EVENT, HE
    NEEDED SOME INFORMATION IN ORDER TO MAKE PROPER JUDGMENTS. HE OUTLINED
    AT THE MEETING ELEVEN CATEGORIES OF INFORMATION DESIRED AND REITERATED
    THE REQUEST IN A LETTER DATED THE SAME DAY. HE REQUESTED THAT
    RESPONDENT POSTPONE MAKING ANY CHANGES FOR AT LEAST 30 DAYS TO ENABLE
    RESPONDENT TO CONSIDER ITS POSITION. (TR. 92; JOINT EX. 7).

14. ON APRIL 23, 1979, RESPONDENT ADVISED THE UNION THAT IT WAS IN
    THE PROCESS OF OBTAINING THE INFORMATION REQUESTED BY THE UNION AND THAT
    THE PROPOSED IMPLEMENTATION DATE WAS RESCHEDULED FOR MAY 13, 1979. (TR.
    92-93).

15. ON APRIL 26, 1979 RESPONDENT FURNISHED THE UNION THE INFORMATION
    IT HAD REQUESTED IN EIGHT CATEGORIES, BUT STATED THAT INFORMATION
    CONCERNING THE AMOUNTS OF SCHEDULED AND UNSCHEDULED ANNUAL LEAVE USED
    PRIOR TO AND DURING FLEXITIME AND THE NUMBER OF ABUSES OF FLEXITIME AND
    RELATED DISCIPLINARY ACTIONS WAS NOT REASONABLY AVAILABLE. (TR. 93;
    JOINT EX. 8).

16. ON APRIL 30, 1979 THE UNION REITERATED ITS REQUEST FOR THE
    INFORMATION NOT SUPPLIED. (JOINT EX. 9).

17. THE PARTIES MET ON MAY 7, 1979. MR. KELLEY OF RESPONDENT
    EXPLAINED TO MR. KETCHERSIDE OF THE UNION THAT RESPONDENT HAD NO RECORDS
    DISTINGUISHING BETWEEN SCHEDULED AND UNSCHEDULED ANNUAL LEAVE OR LEAVE
    USED PRIOR TO AND DURING FLEXITIME. HE STATED THAT OBTAINING
    INFORMATION CONCERNING ALLEGED ABUSES OF FLEXITIME AND DISCIPLINARY
    ACTION TAKEN AS A RESULT WOULD REQUIRE A MASSIVE REVIEW OF PERSONNEL
    FILES WITH NO ASSURANCE THAT THE DATA WOULD RELATE SPECIFICALLY TO
    ABUSES OF FLEXITIME. MR. KETCHERSIDE ACKNOWLEDGED THE PROBLEM IN
    OBTAINING THE INFORMATION, AND STATED THAT HE WAS CONCERNED WHETHER OR
    NOT THE RESPONDENT WAS CHANGING FLEXITIME BECAUSE OF ABUSES BY
    EMPLOYEES. MR. KELLEY REPLIED THAT IF MR. KETCHERSIDE WAS CHANGING THE
    REQUEST TO ASK FOR THAT INFORMATION, AN ANSWER COULD BE PROVIDED.

18. ON MAY 9, 1979 RESPONDENT ADVISED THE UNION THAT THE EMPLOYER
    HAD NO STATISTICAL EVIDENCE THAT WOULD INDICATE THAT ABUSE ENCOUNTERED
    UNDER FLEXI-TIME WAS SIGNIFICANTLY DIFFERENT FROM ABUSE PRIOR TO
    FLEXITIME. (TR. 94-97; JOINT EX. 10).

19. DURING DISCUSSIONS BETWEEN RESPONDENT AND THE UNION CONCERNING
    THE PROPOSED MODIFICATION OF FLEXITIME, THE UNION ASSERTED THAT THE
    CHANGES WERE NOT JUSTIFIED BY RESPONDENT'S REASONS; THAT THEY WOULD
    CAUSE HARDSHIPS ON EMPLOYEES; AND THAT A JOINT LABOR-MANAGEMENT
    COMMITTEE SHOULD BE ESTABLISHED TO STUDY THE SITUATION AND COME UP WITH
    RECOMMENDATIONS. NO SPECIFIC COUNTER-PROPOSALS ON THE FLEXITIME PLAN
    WERE OFFERED BY THE UNION.

20. RESPONDENT CONSIDERED THE UNION'S REQUESTS, REJECTED THEM, AND
    IMPLEMENTED THE MODIFICATION PROPOSALS ON MAY 27, 1979.

DISCUSSION, CONCLUSIONS, AND ORDER

THE GENERAL COUNSEL ALLEGED THAT RESPONDENT VIOLATED SECTION
7116(A)(1) AND (5) OF THE STATUTE "ON OR ABOUT APRIL 16, 1979, (WHEN)
RESPONDENT UNILATERALLY ANNOUNCED A CHANGE IN EXISTING CONDITIONS OF
EMPLOYMENT CONCERNING FLEXITIME AND, THEREAFTER, ON OR ABOUT MAY 28,
1979, UNILATERALLY IMPLEMENTED A FLEXITIME PROGRAM WITHOUT FURNISHING
THE UNION AN OPPORTUNITY TO BARGAIN ON SUCH CHANGES OR ON THE IMPACT AND
IMPLEMENTATION OF SUCH CHANGES." (GENERAL COUNSEL'S EX. 1(X).)

IN DENYING THAT IT HAS COMMITTED ANY UNFAIR LABOR PRACTICE HEREIN,
RESPONDENT ASSERTS THAT THE OBLIGATION TO BARGAIN WAS MODIFIED BY A
MEMORANDUM OF UNDERSTANDING, SIGNED ON AUGUST 19, 1977, BETWEEN
RESPONDENT AND THE UNION, (GENERAL COUNSEL'S EX. 1(Z).), AND THAT IT
COMPLIED WITH ITS CONTRACTUAL OBLIGATION.

BOTH PARTIES RELY ON THE NEGOTIATED AGREEMENT, THE MEMORANDUM OF
UNDERSTANDING, AND THE NEGOTIATIONS LEADING TO THE MEMORANDUM OF
UNDERSTANDING IN ASSERTING THEIR RESPECTIVE POSITIONS CONCERNING
RESPONDENT'S OBLIGATION TO BARGAIN. THEREFORE, THE ISSUES ESSENTIALLY
INVOLVE ARGUABLE INTERPRETATIONS OF THE NEGOTIATED AGREEMENTS AND ARE
NOT PROPERLY THE SUBJECT OF UNFAIR LABOR PRACTICE PROCEEDINGS.

IT IS WELL RECOGNIZED THAT A PARTY TO A NEGOTIATED AGREEMENT ACTS AT
ITS PERIL IN INTERPRETING AND APPLYING SUCH AGREEMENT. THUS, IF THE
RESPONDENT'S INTERPRETATION OF THE NEGOTIATED AGREEMENT AND MEMORANDUM
OF UNDERSTANDING WAS SUCH THAT IT RESULTED IN A CLEAR AND PATENT BREACH
OF THE TERMS OF THE AGREEMENT, THEN SUCH INTERPRETATION COULD RISE TO
THE LEVEL OF AN UNFAIR LABOR PRACTICE. ON THE OTHER HAND, IF
RESPONDENT'S INTERPRETATION WAS ARGUABLY WITHIN THE TERMS OF THE
NEGOTIATED AGREEMENT, AND THE MEMORANDUM OF UNDERSTANDING, THEN SUCH
INTERPRETATION WOULD MERELY BE A MATTER OF CONTRACT INTERPRETATION TO BE
RESOLVED THROUGH THE PARTIES' GRIEVANCE AND ARBITRATION MACHINERY. CF.
DEPARTMENT OF THE NAVY, NAVAL AIR REWORK FACILITY, A/SLMR NO. 1089, OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1931 AND DEPARTMENT OF THE NAVY,
NAVAL WEAPONS STATION, CONCORD, CALIFORNIA, CASE NO. O-NG-55, 2 FLRA
19(1979).

IT IS ARGUABLE THAT THE RESPONDENT'S APRIL 13, 1979 NOTICE TO THE
UNION OF ITS INTENT TO MODIFY FLEXITIME AT THE CENTER, ITS SUBSEQUENT
"CONSULTATION" WITH THE UNION ON ITS PROPOSAL, AND ITS IMPLEMENTATION OF
THE PROPOSAL, CONSTITUTED REASONABLE INTERPRETATIONS OF THE PARTIES'
AGREEMENTS. THEREFORE, I CONCLUDE THAT SUCH ACTIONS, STANDING ALONE,
DID NOT RISE TO THE LEVEL OF AN UNFAIR LABOR PRACTICE UNDER THE STATUTE
AND SUCH CONTRACTUAL DISPUTE SHOULD BE RESOLVED THROUGH THE PARTIES'
GRIEVANCE AND ARBITRATION PROCEDURE.

ASSUMING, HOWEVER, THAT THE CASE IS PROPERLY THE SUBJECT OF UNFAIR
LABOR PRACTICE PROCEEDINGS ON THE THEORY THAT IT INVOLVES AN ALLEGED
VIOLATION OF RESPONDENT'S OBLIGATION TO BARGAIN UNDER THE STATUTE AND AN
ALLEGED WAIVER OF SUCH OBLIGATION, CF. DEPARTMENT OF HEALTH, EDUCATION
AND WELFARE, SOCIAL SECURITY ADMINISTRATION, BRSI, NORTHEASTERN PROGRAM
SERVICE CENTER, A/SLMR NO. 1158, 8 A/SLRM 1288, 1293(1978), THE RECORD
WILL BE CONSIDERED FURTHER ON THAT BASIS.

UNDER THE STATUTE "CONSULTATION" MEANS SOMETHING DIFFERENT FROM
"BARGAINING" IN TWO AREAS: NATIONAL CONSULTATION RIGHTS UNDER SECTION
7113 AND GOVERNMENT-WIDE CONSULTATION RIGHTS UNDER SECTION 7117(D)(1)
AND (2), AREAS NOT INVOLVED HERE. HOWEVER, SECTION 7103(A)(12), IN
DEFINING "COLLECTIVE BARGAINING" USES THE WORDS "CONSULT" AND "BARGAIN"
INTERCHANGEABLY IN SPEAKING OF THE "MUTUAL OBLIGATION . . . TO MEET AT
REASONABLE TIMES AND TO CONSULT AND BARGAIN IN A GOOD-FAITH EFFORT TO
REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF EMPLOYMENT . . . ."
THUS, IF THE WORD "CONSULT" IS CONTAINED IN AN AGREEMENT, IT MAY BE
CONSTRUED TO MEAN "BARGAIN" OR "NEGOTIATE" UNLESS "CONSULT" IS OTHERWISE
DEFINED, OR THERE HAS BEEN A CLEAR AND UNMISTAKABLE WAIVER OF THE RIGHT
TO BARGAIN, OR UNLESS IT CLEARLY REFERS TO NATIONAL OR GOVERNMENT-WIDE
CONSULTATION RIGHTS.

SECTION 7135(A)(1) OF THE STATUTE PROVIDES THAT NOTHING CONTAINED IN
THE CHAPTER SHALL PRECLUDE THE CONTINUATION OF A LAWFUL AGREEMENT
ENTERED INTO BEFORE THE EFFECTIVE DATE.

PARAGRAPH I.B.1.B. OF THE FLEXITIME PLAN, AGREED TO BY THE PARTIES,
DIRECTLY AND SPECIFICALLY RESERVES TO RESPONDENT THE "DETERMINATION . .
. TO . . . MODIFY FLEXITIME AT ANY ORGANIZATIONAL LEVEL . . . IN ORDER
TO MEET THE PECULIAR OPERATIONAL REQUIREMENTS OF AN ORGANIZATION." WHERE
FLEXITIME IS MODIFIED, THE PLAN STATES THAT THE UNION WILL BE
"CONSULTED". WHERE FLEXITIME IS CANCELLED, THE PLAN STATES THAT THE
UNION WILL BE PROVIDED AN OPPORTUNITY TO "NEGOTIATE". THE PLAIN
LANGUAGE OF THE PLAN AND THE BARGAINING HISTORY LEADING TO THE
AGREEMENT, AS FOUND ABOVE, DEMONSTRATES THAT THE PARTIES INTENDED A
CLEAR AND UNMISTAKABLE DISTINCTION BETWEEN THE TWO SITUATIONS AND OF
THEIR RIGHTS IN CONNECTION WITH EACH. COMPARE DEPARTMENT OF HEALTH,
EDUCATION AND WELFARE, SOCIAL SECURITY ADMINISTRATION, BRSI,
NORTHEASTERN PROGRAM SERVICE CENTER, A/SLMR NO. 1101, 8 A/SLMR 893, 899,
FLRC 78A-136(1978). THE GENERAL COUNSEL'S ARGUMENT THAT THE CHANGE
AMOUNTED TO A CANCELLATION OF FLEXITIME IS REJECTED. IT IS CONCLUDED,
THEREFORE, THAT A CLEAR AND UNMISTAKABLE WAIVER BY THE UNION OF ITS
RIGHT TO NEGOTIATE A MODIFICATION OF FLEXITIME IS EVIDENT FROM THE
LANGUAGE OF THE AGREEMENT AND THE NEGOTIATIONS LEADING TO THE AGREEMENT.
CF. FEDERAL AVIATION ADMINISTRATION, A/SLMR 992, 8 A/SLMR 227(1978);
U.S. ARMY SCHOOL TRAINING CENTER, FORT GORDON, GEORGIA, A/SLMR NO. 148,
2 A/SLMR 201(1972). COMPARE UNITED STATES CUSTOMS SERVICE, REGION VI,
HOUSTON, TEXAS, A/SLMR NO. 1161, 8 A/SLMR 1305(1978); DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE, CHICAGO DISTRICT OFFICE, A/SLMR NO.
962, 8 A/SLMR 40(1978); DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
SERVICE, SOUTHWEST REGION, DALLAS, TEXAS, A/SLMR NO. 858, 7 A/SLMR
523(1977); SOUTHEAST EXCHANGE REGION OF THE ARMY AND AIR FORCE EXCHANGE
SERVICE, ROSEWOOD WAREHOUSE, COLUMBIA, SOUTH CAROLINA, A/SLMR NO. 656, 6
A/SLMR 238, AFFIRMED FLRC NO. 76A-85, 5 FLRC 357(1977).

THE RECORD REFLECTS THAT THE RESPONDENT ISSUED A NEWSPAPER RELEASE,
HELD MEETINGS WITH SOME EMPLOYEES TO ADVISE THEM OF THE PROPOSED
MODIFICATION, AND CONDUCTED SOME SURVEYS OF EMPLOYEE ATTITUDES ABOUT THE
FLEXITIME PROGRAM AND RESPONDENT'S PROPOSED MODIFICATION WITHOUT THE
KNOWLEDGE AND CONSENT OF THE UNION. (FINDINGS 9-11,SUPRA). IT HAS
PREVIOUSLY BEEN HELD THAT SIMILAR EMPLOYEE SURVEYS OF THIS NATURE IS AN
UNFAIR LABOR PRACTICE SINCE SUCH SURVEYS AMOUNT TO A BY-PASS OF THE
UNION WHICH UNDERMINES AND IMPAIRS THE STATUS OF THE UNION AS THE
EXCLUSIVE REPRESENTATIVE OF EMPLOYEES IN THE UNIT. CF. DEPARTMENT OF
HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY ADMINISTRATION, BUREAU OF
RETIREMENT AND SURVIVORS INSURANCE, NORTHEASTERN PROGRAM SERVICE CENTER
AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL UNION 1760,
AFL-CIO, 1 FLRA 59(1979). JOINT EXHIBITS IN THE RECORD REFLECTS THAT
INFORMATION ABOUT THE ALLEGED SURVEYS WAS MADE AVAILABLE TO THE UNION BY
RESPONDENT ON APRIL 26 AND MAY 9, 1979. (JOINT EX. 8, 10). YET,
NEITHER THE CHARGE NOR AMENDED COMPLAINT SPECIFICALLY RAISE THIS ISSUE
OR ALLEGE FACTS SPECIFICALLY RELATING TO THE ISSUE. AS NOTED, THE
COMPLAINT CONTAINS A FACTUAL ALLEGATION THAT RESPONDENT REFUSED TO
BARGAIN IN GOOD FAITH WITH THE UNION IN THAT "ON OR ABOUT APRIL 16,
1979, RESPONDENT UNILATERALLY ANNOUNCED A CHANGE IN EXISTING CONDITIONS
OF EMPLOYMENT CONCERNING FLEXITIME AND, THEREAFTER, ON OR ABOUT MAY 28,
1979, UNILATERALLY IMPLEMENTED A FLEXITIME PROGRAM WITHOUT FURNISHING
THE UNION AN OPPORTUNITY TO BARGAIN ON SUCH CHANGES OR ON THE IMPACT AND
IMPLEMENTATION OF SUCH CHANGES." THE GENERAL COUNSEL'S OPENING STATEMENT
DID NOT REFER TO THE BY-PASS ISSUE. ALTHOUGH PARTS OF THE EXAMINATION
AND CROSS-EXAMINATION OF TWO WITNESSES INQUIRED INTO THESE EVENTS, THE
ORAL MOTION OF THE GENERAL COUNSEL, MADE AT THE CLOSE OF THE HEARING, TO
AMEND THE COMPLAINT TO CONFORM WITH THE EVIDENCE COVERED ONLY "CHANGES
AS TO DATES AND (NAMES) . . . IT WOULD NOT GO TO SUBSTANTIVE ELEMENTS
OF THE COMPLAINT." (TR. 148-149). THE ISSUE IS RAISED SQUARELY FOR THE
FIRST TIME IN THE GENERAL COUNSEL'S POST-HEARING BRIEF.

I CONCLUDE THAT IT WOULD BE INAPPROPRIATE TO DETERMINE THE BY-PASS
ISSUE SINCE IT IS NOT CLEAR THAT RESPONDENT WAS PROPERLY ON NOTICE OF
THIS ISSUE AND, AS A RESULT, THAT THE MATTER WAS FULLY LITIGATED AT THE
HEARING.

IT IS CONCLUDED THAT A PREPONDERANCE OF THE EVIDENCE DOES NOT SUPPORT
A VIOLATION BY RESPONDENT OF SECTIONS 7116(A)(1) AND (5) OF THE STATUTE,
AS ALLEGED.

RECOMMENDATION

HAVING FOUND THAT RESPONDENT HAS NOT ENGAGED IN CONDUCT PROHIBITED BY
SECTIONS 7116(A)(1) AND (5) OF THE STATUTE, IT IS RECOMMENDED THAT THE
COMPLAINT HEREIN BE DISMISSED IN ITS ENTIRETY.

GARVIN LEE OLIVER

ADMINISTRATIVE LAW JUDGE

DATED: JANUARY 18, 1980

WASHINGTON, D.C.

/1/ PAUL KETCHERSIDE, PRESIDENT OF THE UNION, TESTIFIED THAT
"CONSULT" UNDER I.B.1.B. OF THE PLAN MEANS "NOTIFY", AND THAT IT WAS
UNDERSTOOD DURING NEGOTIATIONS THAT, UNDER THIS PROVISION, THE UNION
WOULD BE NOTIFIED OF EVEN MINOR MODIFICATIONS IN FLEXITIME, AT WHICH
TIME THE UNION COULD MAKE A DETERMINATION OF WHETHER OR NOT TO EXERCISE
ITS RIGHT TO NEGOTIATE UNDER ARTICLE 41 OF THE 1976 AGREEMENT. MR.
KETCHERSIDE TESTIFIED THAT THE PARTIES UNDERSTOOD THAT ARTICLE 3, 19,
AND 41 OF THE 1976 AGREEMENT WOULD SUPERSEDE ANYTHING TO WHICH THEY
AGREED, AND THAT UNDER ARTICLE 4, SECTION F(3) OF THE 1976 AGREEMENT HE
HAD NO AUTHORITY TO BIND THE UNION TO AN ACCORD IN CONFLICT WITH THE
1976 AGREEMENT. (TR. 58-60).

IN MAKING THE ABOVE FINDINGS, I HAVE REJECTED THIS TESTIMONY. I HAVE
CREDITED THE TESTIMONY OF MR. LYNCH, PRINCIPAL SPOKESMAN, AND CHARLES L.
WHITLEY, CHIEF NEGOTIATOR FOR RESPONDENT. THE TESTIMONY OF MR. LYNCH
AND MR. WHITLEY CONCERNING THE NEGOTIATIONS WAS MORE SPECIFIC, THOROUGH,
CONVINCING, AND CONSISTENT WITH THE PLAIN LANGUAGE OF THE MEMORANDUM,
THE 1976 AGREEMENT, AND THE RECORD AS A WHOLE.