National Bureau of Standards, Boulder Laboratories, Plant Division 283.00, Boulder, Colorado (Respondent) and American Federation of Government Employees, Local 2186, AFL-CIO (Charging Party) (Authority decision, May 29, 1981)

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 federal laboratory changed weekend call back overtime practices, prompting a union complaint alleging failure to give notice and bargain. The judge found the asserted unfair labor practice was not proved. With no exceptions filed, the Authority adopted the judge’s findings and dismissed the complaint.

Decision snapshot

• Authority: 5 U.S.C. § 7116(a)(1), 5 U.S.C. § 7116(a)(5), 5 U.S.C. § 7118.
• Outcome: Judge’s dismissal adopted; overtime complaint dismissed.
• Key point: The record did not establish the charged bargaining violation.

Full text (FLRA public release)

[ v05 p823 ]

05:0823(107)CA

The decision of the Authority follows:

5 FLRA No. 107

NATIONAL BUREAU OF STANDARDS
BOULDER LABORATORIES, PLANT DIVISION
283.00, BOULDER, COLORADO
Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2186, AFL-CIO
Charging Party

Case No. 7-CA-328

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 AS ALLEGED IN THE COMPLAINT AND
RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY. NO
EXCEPTIONS WERE FILED TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER.

PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
CASE, AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE AUTHORITY
HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION.

ORDER

IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 7-CA-328 BE AND
IT HEREBY IS, DISMISSED.

ISSUED, WASHINGTON, D.C., MAY 29, 1981

RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY

-------------------- ALJ$ DECISION FOLLOWS --------------------

GAVIN LODGE, ESQUIRE
FOR THE GENERAL COUNSEL

GORDON FIELDS, ESQUIRE
JAMES REESE,
FOR THE AGENCY

BEFORE: JOHN H. FENTON
CHIEF ADMINISTRATIVE LAW JUDGE

DECISION

STATEMENT OF THE CASE

THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET. SEQ., AS A RESULT OF
AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON MARCH 18, 1980, BY THE
REGIONAL DIRECTOR, REGION 7, FEDERAL LABOR RELATIONS AUTHORITY. THE
COMPLAINT ALLEGED THAT RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5) OF
THE STATUTE BY REDUCING WEEKEND CALL-BACK OVERTIME WITHOUT NOTICE TO THE
UNION, BY REFUSING TO NEGOTIATE ABOUT SUCH CHANGE, AND BY THEREAFTER
TERMINATING ITS WEEKEND CALL-BACK OVERTIME PROCEDURE WITHOUT PROVIDING
THE UNION NOTICE AND AN OPPORTUNITY TO BARGAIN.

A HEARING WAS HELD ON JUNE 24, 1980, IN DENVER, COLORADO. ALL
PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE WITNESSES
AND TO INTRODUCE EVIDENCE. UPON THE ENTIRE RECORD, INCLUDING MY
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.

FINDINGS OF FACT

1. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2186 HAS
   REPRESENTED THE PLANT DIVISION EMPLOYEES AT RESPONDENT'S BOULDER
   LABORATORIES SINCE 1970. IN DECEMBER, 1977, STAND-BY /1/ DUTY
   INSTRUCTIONS WERE ISSUED BY THE PLANT DIVISION CHIEF WHICH, IN RELEVANT
   RESPECT, PROVIDED THAT ALL QUALIFIED ELECTRICIANS AND MECHANICS WHO
   VOLUNTEERED FOR SUCH DUTY WOULD RECEIVE TWO HOURS OVERTIME FOR ANY WORK
   ON FRIDAY EVENING AND THREE HOURS ON SATURDAY AND SUNDAY. SIMILAR
   PROVISION WAS MADE FOR THE DAY BEFORE, AND THE DAY OF, A HOLIDAY. ANY
   EMPLOYEE PULLING SUCH A TOUR OF DUTY WAS REQUIRED TO REMAIN AVAILABLE
   (BY TELEPHONE OR RADIO) TO THE PLANT GUARDS, SO AS TO BE ABLE TO REPORT
   TO THE PLANT WITHIN 30 MINUTES, BETWEEN THE END OF THE SHIFT BEFORE THE
   WEEKEND OR HOLIDAY AND THE BEGINNING OF THE SHIFT ON MONDAY OR THE DAY
   FOLLOWING THE HOLIDAY. IN ADDITION, HE WAS TO VISIT THE PLANT, INSPECT
   CERTAIN EQUIPMENT AND MAKE ANY NECESSARY REPAIRS ON EACH SUCH DAY.
   THUS, A HOLIDAY TOUR PROVIDED A MINIMUM OF FIVE HOURS OF OVERTIME, AND A
   WEEKEND PROVIDED EIGHT HOURS, REGARDLESS OF THE TIME ACTUALLY SPENT ON
   SITE, AND ACTUAL WORK IN EXCESS THEREOF WAS, OF COURSE, COMPENSATED. IN
   TIME THE HOURS GUARANTEED THE MECHANICS ON SATURDAY, SUNDAY OR HOLIDAY
   WERE INCREASED TO FOUR HOURS BECAUSE MECHANICS HAD A MORE EXTENSIVE
   INSPECTION TOUR THAN DID ELECTRICIANS.

2. IN NOVEMBER OF 1978, ROBERT L. RODGER BECAME PLANT DIVISION
   CHIEF. EARLY IN 1979 HE DETERMINED THAT THE ELECTRICIANS WERE NOT
   NEEDED FOR WEEKEND STAND-BY DUTY. IN MARCH, GENERAL FOREMAN DONALD D.
   RICE ASSEMBLED THE AFFECTED EMPLOYEES AND INFORMED THEM OF THE DECISION
   TO TERMINATE THAT PART OF THE PROGRAM. NO EFFORT WAS MADE TO GIVE THE
   UNION NOTICE OF THE CONTEMPLATED CHANGE, AND NO BARGAINING OCCURRED
   CONCERNING THE DECISION, ITS IMPLEMENTATION OR ITS IMPACT. THE
   COMPLAINT DOES NOT ADDRESS THIS INCIDENT, WHICH IS BEYOND THE REACH OF
   THE UNFAIR LABOR PRACTICE CHARGE FILED IN NOVEMBER. IT IS NEVERTHELESS
   BACKGROUND EVIDENCE INDICATIVE OF A DISPOSITION ON THE PART OF
   MANAGEMENT OFFICIALS TO IGNORE THE COLLECTIVE BARGAINING REPRESENTATIVE
   AND TO ANNOUNCE CHANGES IN WORKING CONDITIONS DIRECTLY TO EMPLOYEES.
   /2/

3. RODGER AT ABOUT THIS TIME BECAME CONCERNED ABOUT THE LAWFULNESS
   OF THE STAND-BY OVERTIME PROCEDURES. ON JUNE 13, 1979, HE SENT A MEMO
   TO THE PERSONNEL CHIEF, ASKING THAT THE EXISTING INSTRUCTIONS BE
   REVIEWED AND A DETERMINATION MADE WHETHER THEY COMPLIED WITH GOVERNING
   REGULATIONS. THE MATTER WAS RELAYED TO NATIONAL HEADQUARTERS IN
   GAITHERSBURG, MARYLAND. IN LATE OCTOBER, RESPONDENT WAS INFORMED THAT
   IT WAS UNLAWFUL TO PAY IN EXCESS OF TWO HOURS OVERTIME UNLESS MORE THAN
   TWO HOURS WAS, IN FACT, DONE. THUS, THE TWO-HOURS GUARANTEE, OR MINIMUM
   FOR SUCH CALL-BACK OR STAND-BY, AS PROVIDED IN THE CONTRACT, WAS LAWFUL.
   THE THREE HOURS PROVIDED FOR IN THE INSTRUCTIONS OF DECEMBER 1977, AND
   THE FOUR HOURS PROVIDED IN PRACTICE TO THE MECHANICS, HOWEVER, WERE
   ILLEGAL IN THE JUDGEMENT OF RESPONDENT. AT THE HEARING COUNSEL FOR THE
   GENERAL COUNSEL ANNOUNCED THAT HE DID NOT INTEND TO CONTEST RESPONDENT'S
   DEFENSE THAT A COMPTROLLER GENERAL DECISION REQUIRED IT TO CONFORM TO
   THE LAW BY REDUCING OVERTIME PAYMENTS FOR THE WEEKEND AND HOLIDAY TOURS
   TO TWO HOURS UNLESS THE WORK PERFORMED IN FACT EXCEEDED TWO HOURS.
   NOTWITHSTANDING HIS UNWILLINGNESS TO AFFIRMATIVELY AGREE, OR TO
   STIPULATE THAT SUCH WAS THE CASE, I CONCLUDE THAT THE LEGALITY OF THE
   THREE/FOUR HOUR MINIMUM IS NOT AT ISSUE, AND THAT I NEED NOT DECIDE, BUT
   MAY ASSUME THAT RESPONDENT'S REDUCTION OF SUCH OVERTIME WAS MANDATED BY
   LAW.

4. RUMORS SPREAD AMONG THE WORK FORCE THAT THE LEGALITY OF SO-CALLED
   STAND-BY OR CALL-BACK MINIMUM PAYMENT IN EXCESS OF TWO HOURS WAS IN
   QUESTION AND THAT IT MIGHT BE ELIMINATED. NEWLY ELECTED UNION PRESIDENT
   RALPH BRAFFORD AND VICE PRESIDENT JOEL BROWN VISITED AREA PERSONNEL
   OFFICER JOHN DOUGHTY ON NOVEMBER 2 TO DISCUSS SOME GRIEVANCES. WHILE
   THERE THEY INQUIRED ABOUT THE ELIMINATION OF SUCH OVERTIME FOR THE
   ELECTRICIANS AND ABOUT THE PROSPECT OF ITS REDUCTION OR ELIMINATION FOR
   THE MECHANICS. DOUGHTY TOLD THEM THAT RODGER BELIEVED IT WAS ILLEGAL
   AND SAID HE WOULD BE GLAD TO GO THROUGH THE REGULATIONS AND TO EXPLAIN
   THEM TO THE EMPLOYEES. A MEETING WAS THEREAFTER SCHEDULED FOR NOVEMBER
   9, AT WHICH MANAGEMENT OFFICIALS PRESENTED THEIR VIEW TO THE
   RANK-AND-FILE AND THE UNION OFFICERS. ALTHOUGH THE COMPLAINT DOES NOT
   ALLEGE THAT A VIOLATION OCCURRED ON THIS OCCASION, THE QUESTION WHETHER
   MANAGEMENT DELIBERATELY BY-PASSED THE UNION AND DEALT DIRECTLY WITH UNIT
   EMPLOYEES WAS VERY THOROUGHLY LITIGATED, IN AN APPARENT EFFORT TO
   PROVIDE FURTHER EVIDENCE OF A DISPOSITION SIMPLY TO ANNOUNCE CHANGES TO
   THE AFFECTED EMPLOYEES. PRESIDENT BRAFFORD TESTIFIED, HOWEVER, THAT "WE
   WANTED TO GET THE PEOPLE THAT WERE INVOLVED IN THE STAND-BY GROUP
   ASSEMBLED . . . IT'S BETTER TO HAVE SOMEONE MAYBE COME AND EXPLAIN . . .
   MANAGEMENT'S SIDE OF IT, RATHER THAN FOR ME TO GO BACK AND TELL THEM
   SECONDHAND AND SO WE ARRANGED THIS MEETING TOGETHER."

5. ON NOVEMBER 9 ALL MECHANICAL AND ELECTRICAL GROUP EMPLOYEES WERE
   ASSEMBLED FOR APPROXIMATELY THE LAST HOUR OF THEIR SHIFT. PRESENT FOR
   MANAGEMENT WERE PLANT DIVISION CHIEF RODGER, GENERAL FOREMAN RICE,
   PERSONNEL CHIEF JAMES SPENCER AND AREA PERSONNEL OFFICER JOHN DOUGHTY.
   RICE INTRODUCED DOUGHTY TO THE MEN, AND DOUGHTY THEN ADDRESSED THEM WITH
   RESPECT TO THE VARIOUS REGULATIONS GOVERNING OVERTIME PAYMENT FOR
   STAND-BY AND CALL-BACK WORK. SUFFICE IT TO SAY THAT THE SUBJECT IS MOST
   CONFUSING, BUT THAT THE BOTTOM LINE WAS CLEAR: THAT MANAGEMENT HAD TO
   CONFORM TO THE LAW, AND THAT THE LAW REQUIRED AN END TO THE PRACTICE OF
   PAYING MORE THAN TWO HOURS OVERTIME IF THE WORK PERFORMED TOOK NO MORE
   TIME THAN THAT. RODGER ALSO SPOKE UP TO SAY THAT SUCH PAYMENTS WERE
   ILLEGAL, AND THAT HE WAS GOING TO STOP THEM. UNION PRESIDENT BRAFFORD
   ACKNOWLEDGED THAT THEY WERE TOLD THE PRACTICE WAS ILLEGAL AND WOULD BE
   DROPPED. THE MESSAGE WAS VERY RELUCTANTLY, IF NOT HOSTILELY RECEIVED,
   WITH MANY MEN SAYING THAT IT WAS NOT WORTH THEIR TIME TO REMAIN ON
   STAND-BY AND/OR TO MAKE VISITS TO THE FACILITY FOR THAT MUCH MONEY.
   ARGUMENTS APPARENTLY DEVELOPED, THOUGH THEIR RELEVANCE TO THIS TOPIC
   ESCAPES ME, AS TO WHETHER STAND-BY SHOULD BE ASSIGNED IN ROTATION OR BY
   SENIORITY. THE MEETING RAPIDLY DESCENDED INTO THE CHAOS OF MANY SIDE
   CONVERSATIONS. GIVEN THE BABEL OF VOICES, SPENCER SPOKE UP TO SAY THAT
   IT WAS EVIDENT THAT THERE WAS NO CONSENSUS, THAT MANAGEMENT COULD NOT
   RESPOND TO THEIR NEEDS UNTIL THEY IDENTIFIED THEM AND THE UNION CAME
   FORWARD WITH A PROPOSAL AS TO HOW IT WANTED THE OVERTIME ADMINISTERED.
   /3/ IT IS CLEAR THAT PRESIDENT BRAFFORD FELT THAT MANAGEMENT'S PROPOSAL
   VIOLATED THE CONTRACT BECAUSE IT DID NOT PROVIDE COMPENSATION FOR
   "STANDING BY." THUS HE RECALLS HAVING ASKED RODGER (WHETHER ON THIS
   OCCASION OR ANOTHER ONE) IF ANY EMPLOYEE COULD COME TO THE LABORATORY,
   DO HIS TOUR AND THEN GO FISHING. RODGER'S ANSWER WAS THAT IT COULD NOT
   BE DONE.

6. ANOTHER MEETING, INITIATED BY UNION PRESIDENT BRAFFORD, OCCURRED
   IN RODGER'S OFFICE ON NOVEMBER 14. FOREMAN RICE, UNION PRESIDENT
   BRAFFORD, VICE PRESIDENT BROWN AND STEWARD FOREMAN FORBER WERE PRESENT.
   MINUTES WERE KEPT BY RODGER (RES. EXH. 9). WHILE RECOLLECTIONS ARE
   VAGUE AND MINUTES PREPARED BY RESPONDENT MAY BE SELF-SERVING, THERE IS
   NO INDICATION THAT THE MATTERS RECITED AS THE SUBJECTS OF DISCUSSION
   WERE NOT, IN FACT, THE AREA COVERED. THUS I FIND THAT THE UNION WAS
   AGAIN INFORMED THAT OVERTIME WOULD BE ADMINISTERED IN ACCORDANCE WITH
   THE FPM AS EXPLAINED BY DOUGHTY, THAT THIS WAS CONSISTENT WITH ARTICLE 9
   OF THE CONTRACT AND THAT THE "SIDE AGREEMENT" (DECEMBER 1977
   INSTRUCTIONS) WAS NULL AND VOID. MANAGEMENT ALSO SAID IT WOULD
   THEREFORE BE NECESSARY TO CONSIDER VOLUNTEER LISTINGS FOR WEEKEND WORK
   AND FOR WEEKDAY WORK, AS WELL AS THE USE OF ROTATIONAL OR SENIORITY
   LISTINGS. MANAGEMENT OFFERED TO MAKE A WRITTEN PROPOSAL AFTER THE UNION
   DECLINED A PROPOSED EXCHANGE OF WRITTEN PROPOSALS. A STANDARD OPERATING
   PROCEDURE FOR CALL-BACKS (G.C. EXH. 3) WAS PREPARED AND DELIVERED TO THE
   UNION THE FOLLOWING DAY. IT APPEARS TO DIFFER FROM THE DECEMBER 1977
   INSTRUCTIONS IN TWO SIGNIFICANT RESPECTS: IT REDUCED THE MINIMUM FROM
   THREE TO TWO HOURS AND IT SET SPECIFIC TIMES FOR ON-SITE TOURS TO TAKE
   PLACE. ON THE VERY SAME DAY THE UNION SENT RODGER A MEMORANDUM (G.C.
   EXH. 5) IN WHICH IT TOOK THE POSITION THAT THE 1977 STAND-BY AGREEMENT,
   WHETHER OR NOT LEGAL, CONSTITUTED A SIDE AGREEMENT BETWEEN THE PARTIES,
   DEMANDED TO "NEGOTIATE THE ENTIRE MATTER," AND REQUESTED THAT THE STATUS
   QUO BE MAINTAINED UNTIL A NEW AGREEMENT WAS NEGOTIATED. GENERAL COUNSEL
   EXHIBIT 5 WAS A RESPONSE TO THE PROPOSED PROCEDURE, ALTHOUGH MANAGEMENT
   WITNESSES CREDIBLY TESTIFIED THAT THEY BELIEVED THE TWO MEMOS CROSSED IN
   THE MAIL, AS THEY BORE THE SAME DATE AND THE UNION'S MEMO WAS
   UNRESPONSIVE, IN TITLE AND IN TEXT, TO THE PARTICULARS SET FORTH IN
   MANAGEMENT'S PROPOSAL. /4/ CLEARLY THE UNION, IN DEMANDING MAINTENANCE
   OF THE STATUS QUO UNTIL THE ENTIRE MATTER WAS NEGOTIATED, INDICATED ITS
   REFUSAL TO ACCEPT THE REDUCTION IN HOURS REQUIRED BY LAW. UNION
   PRESIDENT BRAFFORD ACKNOWLEDGED THAT THE UNION NEVER PROVIDED WRITTEN
   COMMENTS TO RODGER'S DRAFT OF NOVEMBER 15 AND, MORE IMPORTANTLY, THAT
   HIS MEMO OF THE SAME DATE EXPRESSED HIS DESIRE TO MAINTAIN THE OLD
   PROCEDURE FOR COMPENSABLE HOURS. MANAGEMENT IN TURN, DID NOT REPLY IN
   WRITING TO THE UNION'S REQUEST.

7. ON MONDAY, NOVEMBER 19, RODGER MET WITH HIS SUPERVISORS AND
   INSTRUCTED THEM THAT THERE WOULD BE A TWO HOUR LIMIT TO CALL-BACK OR
   STAND-BY OVERTIME UNLESS WORK PERFORMED IN FACT EXCEEDED THAT. ON
   NOVEMBER 21, THE DAY BEFORE THANKSGIVING, GENERAL FOREMAN RICE CALLED
   UNION VICE PRESIDENT BROWN, WHO HAPPENED TO HAVE THE STAND-BY TOUR FOR
   THE HOLIDAY, TO INFORM HIM THAT HE WOULD RECEIVE A MAXIMUM OF TWO HOURS
   OVERTIME FOR THE HOLIDAY, AND THAT HE SHOULD NOT ACCEPT THE TOUR IF HE
   EXPECTED MORE THAN THAT. BROWN DECLINED THE JOB. RICE ASKED BROWN NOT
   TO DISCUSS THE MATTER WITH OTHERS UNTIL HE HAD A CHANCE TO INFORM THE
   MEN ON FRIDAY.

8. ON FRIDAY, NOVEMBER 23, RICE CALLED A MEETING OF PLANT SERVICE
   EMPLOYEES. HE INFORMED THEM THAT THE TWO HOUR OVERTIME LIMIT WAS GOING
   INTO EFFECT AND REQUESTED THAT THE MEN SIGN A ROSTER, INDICATING WHETHER
   THEY WERE WILLING TO VOLUNTEER, UNDER THE NEW PAY-TERMS, FOR WEEKEND AND
   HOLIDAY STAND-BY AS WELL AS WEEKDAY CALL-BACK. ONLY TWO, BOB BIDUS AND
   WILLIAM CANTRELL, VOLUNTEERED. BIDUS WORKED THE ENSUING WEEKEND AND
   THEN WITHDREW ON THE GROUND THAT THE PAY HARDLY COVERED HIS COSTS.
   CANTRELL CHANGED HIS MIND A FEW DAYS AFTER SIGNING ON. AT THE MEETING,
   UNION PRESIDENT BRAFFORD SPOKE UP AS PRESIDENT, STATING THAT HE HAD IN
   WRITING REQUESTED NEGOTIATIONS, AND THAT RICE WAS CONSULTING WITH THE
   MEN INSTEAD OF GOING THROUGH THE UNION. RICE RESPONDED THAT HE WAS
   MERELY CARRYING OUT ORDERS.

9. ON NOVEMBER 27 ANOTHER MEETING TOOK PLACE BETWEEN DIVISION CHIEF
   RODGER, PERSONNEL OFFICER DOUGHTY, UNION PRESIDENT BRAFFORD AND VICE
   PRESIDENT BROWN. ACCORDING TO RODGER IT WAS HIS PURPOSE TO SEEK INPUT
   FROM THE UNION ON HIS DRAFT PROPOSAL, BUT THAT THE UNION OFFICIALS
   IMMEDIATELY ZEROED IN ON THE THREE HOURS. IN RESPONSE TO THEIR DEMAND
   THAT HE NEGOTIATE THE THREE HOURS, HE REPLIED THAT HE COULD NOT, THAT HE
   HAD TO CONFORM TO THE FPM. COUNSEL FOR THE GENERAL COUNSEL ASSERTS THAT
   RODGER FLATLY REFUSED TO NEGOTIATE "ANYTHING CONCERNING WEEKEND
   CALL-BACK COVERAGE." THE ONLY SUPPORT FOR THAT CLAIM IS BRAFFORD'S
   TESTIMONY THAT RODGER "WAS (AS ON NOVEMBER 14) TRYING TO MAKE HIS POINT
   ON NOT WANTING TO NEGOTIATE A STANDBY SITUATION." BRAFFORD DID NOT
   ELABORATE ON THIS SERIOUSLY IMPRECISE STATEMENT. IT IS DIFFICULT TO
   BELIEVE THAT RODGER THUS ATTEMPTED TO FORECLOSE DISCUSSIONS OF THE
   MANNER IN WHICH THE SUBJECT OVERTIME SHOULD BE ADMINISTERED WHERE HE,
   RATHER THAN THE UNION, HAD INITIATED SUCH NEGOTIATIONS WITH HIS
   PROPOSALS ON NOVEMBER 14 AND 15. THERE IS, FURTHERMORE, NO EVIDENCE
   THAT THE UNION SUGGESTED ANY CHANGE IN THE PROCEDURES BEING OBSERVED,
   EXCEPT RESTORATION OF THE FOUR HOURS PAYMENT FOR WEEKEND AND HOLIDAY
   TOURS. BRAFFORD CONCEDED THAT RODGER HAD TO HAVE UNDERSTOOD THAT THE
   UNION NEGOTIATORS DESIRED TO MAINTAIN THE PAY IN EXCESS OF TWO HOURS.
   RODGER'S TESTIMONY THAT HE SOMEWHAT ANGRILY REFUSED TO ENGAGE IN ANY
   FURTHER DISCUSSION LOOKING TOWARD REINSTITUTION OF THE ILLEGAL
   COMPENSATION FOR FOUR HOURS THEREFORE IS CONSISTENT WITH THE LOGIC OF
   THE SITUATION AND NOT INCONSISTENT WITH BRAFFORD'S. IT IS CREDITED.

10. ON DECEMBER 13, GENERAL FOREMAN RICE AGAIN SOLICITED VOLUNTEERS
    FOR STAND-BY DUTY. AGAIN, TWO MEN SIGNED UP AND THEN QUICKLY RENEGED,
    LEAVING RESPONDENT WITHOUT EMPLOYEES WILLING TO ACCEPT SUCH DUTY ABSENT
    AN ORDER. MANAGEMENT THUS FOUND ITSELF WITHOUT THE CAPACITY TO CARRY
    FORWARD ON A VOLUNTARY BASIS, AND IT ABANDONED THE PROGRAM. THE GUARDS
    WERE INSTRUCTED TO CALL GENERAL FOREMAN RICE IN THE EVENT OF AN
    EMERGENCY. RICE THEN CALLED AN APPROPRIATE EMPLOYEE TO MAKE THE REPAIRS.
    THIS PROCEDURE WAS LATER MODIFIED TO PROVIDE THAT VARIOUS FIRST-LINE
    SUPERVISORS BE CALLED, DEPENDING UPON THE NATURE OF THE EMERGENCY,
    INSTEAD OF RICE. THESE MATTERS WERE NOT THE SUBJECT OF NEGOTIATIONS.

DISCUSSION AND CONCLUSIONS

THE ALLEGATION OF A UNILATERAL REDUCTION IN STAND-BY OVERTIME WAS
DROPPED AT THE HEARING. COUNSEL FOR THE GENERAL COUNSEL NOW CONTENDS
THAT RESPONDENT VIOLATED SECTION 7116(A)(5) BY FAILING TO NEGOTIATE
"IMPACT AND PROCEDURE" WITH RESPECT TO THAT REDUCTION, AND BY FAILING TO
BARGAIN CONCERNING ITS DECISION TO ELIMINATE ENTIRELY SUCH OVERTIME.

A BRIEF REVIEW OF THE SALIENT FACTS-- MANY UNDISPUTED-- DEMONSTRATES
THE LACK OF SUPPORT FOR THE FIRST CONTENTION. THUS MANAGEMENT TOLD THE
UNION OF THE ILLEGALITY OF ITS PAYMENTS ON NOVEMBER 2. AT THE UNION'S
REQUEST IT ATTEMPTED TO EXPLAIN THIS COMPLICATED MATTER TO ALL AFFECTED
EMPLOYEES. IT TOLD THEM THAT REDUCTION FROM FOUR TO TWO HOURS WAS
MANDATED BY LAW, AND IN RESPONSE TO THE VARIED AND CONFLICTING
SUGGESTIONS BEING MADE BY EMPLOYEES IT TOLD THEM THAT THE UNION WOULD
HAVE TO COME FORWARD WITH PROPOSALS CONCERNING ADMINISTRATION OF THE
WEEKEND/HOLIDAY OVERTIME PROGRAM. IT REPEATED THIS MESSAGE ON NOVEMBER
14, UNSUCCESSFULLY SOLICITED WRITTEN PROPOSALS FROM THE UNION AND
OFFERED ITS OWN WRITTEN PROPOSAL ON THE FOLLOWING DAY. IT RECEIVED A
WRITTEN DEMAND THAT THE ILLEGAL STATUS QUO BE MAINTAINED PENDING
NEGOTIATION OF THE "ENTIRE MATTER," BUT IT WAS NEVER CONFRONTED WITH A
SUGGESTION OR A DEMAND THAT ANY PARTICULAR MATTER BE NEGOTIATED, EXCEPT
PRESERVATION OF THE UNLAWFUL OVERTIME. IN THE SEVERAL WEEKS BETWEEN
NOTICE OF THE INTENDED CHANGE AND ITS IMPLEMENTATION THE UNION NEVER
REQUESTED BARGAINING ON IMPLEMENTATION AND IMPACT. THE THREATENED LOSS
OF INCOME WAS THE ONLY CONCERN IT ADDRESSED, AND THERE IS NO HINT OF ANY
OTHER INTEREST EXCEPT FOR THE BROAD LANGUAGE OF ITS WRITTEN BARGAINING
DEMAND. THAT DEMAND WAS AN OBVIOUS PLOY DESIGNED TO DELAY RESPONDENT'S
EFFORTS TO COMPLY WITH THE LAW, FOR IT ADDRESSED NONE OF THE PARTICULARS
CONTAINED IN MANAGEMENT'S PROPOSAL, AND IT WAS SENT AT A TIME WHEN THE
ONUS WAS ON THE UNION TO BE RESPONSIVE TO MANAGEMENT'S BARGAINING
INITIATIVES. HERE, RESPONDENT INVITED BARGAINING AND MADE POSITIVE
PROPOSALS WHICH THE UNION IGNORED, ALTHOUGH THE LEGAL BURDEN WAS ON THE
UNION TO COME FORWARD WITH ITS DEMANDS ON IMPACT AND IMPLEMENTATION
BARGAINING IF IF WISHED TO REQUIRE MANAGEMENT TO BARGAIN. AS NOTED, IT
NEVER DID, ALTHOUGH IT HAD AMPLE NOTICE AND OPPORTUNITY AS WELL AS AN
INVITATION TO DO SO. THUS MANAGEMENT ATTEMPTED TO BARGAIN, ALTHOUGH
UNDER NO LEGAL COMPULSION TO DO SO, AND WAS FRUSTRATED BY THE UNION,
WHICH FOCUSED EXCLUSIVELY ON PRESERVATION OF A WORKING CONDITION WHICH
MANAGEMENT COULD KEEP ONLY BY VIOLATING THE LAW. I CONCLUDE THAT THIS
ALLEGATION IS NOT SIMPLY UNSUPPORTED BY THE EVIDENCE, BUT THAT IT IS
ODDS WITH THE PREPONDERANCE OF THE EVIDENCE, WHICH INDICATES THAT
RESPONDENT IN FACT ATTEMPTED TO BARGAIN ALTHOUGH NOT REQUIRED TO DO SO.

I FIND THE SECOND ALLEGATION EVEN MORE DIFFICULT TO UNDERSTAND.
RESPONDENT SOUGHT VOLUNTEERS FOR STAND-BY AT THE REDUCED COMPENSATION
RATES. KEEPING A CURRENT ROSTER OF VOLUNTEERS WAS NO DEPARTURE FROM
PAST PRACTICE OR THE SIDE AGREEMENT, AND IT WAS OBVIOUSLY NECESSARY IN
VIEW OF THE FACT THAT THE MEN HAD REACTED VERY NEGATIVELY TO THE
PROSPECT OF WORKING ON THOSE TERMS AND THE VICE PRESIDENT HAD REFUSED TO
DO SO ON THANKSGIVING DAY. IT WAS INCUMBENT UPON RESPONSIBLE MANAGERS
TO DETERMINE WHETHER ANY OF THE EMPLOYEES WISHED TO STAY ON THE LIST OF
VOLUNTEERS DESPITE A REDUCTION IN OVERTIME HOURS FROM TEN TO SIX OVER A
WEEKEND. BY DECEMBER 13 OR THEREABOUTS IT WAS ESTABLISHED THAT NONE OF
THE EMPLOYEES DEEMED QUALIFIED TO PULL SUCH TOURS WAS WILLING TO DO SO
VOLUNTARILY. MANAGEMENT THEN HAD TWO ALTERNATIVES: TO MANDATE
PERFORMANCE OF HIGHLY UNPOPULAR WORK OR ABANDON THE PROGRAM AND DEAL
ONLY WITH WHAT THE GUARDS REPORTED TO BE EMERGENCIES. IT CHOSE THE
LATTER COURSE. THE MEN HAD VOTED "WITH THEIR FEET" NOT TO VOLUNTEER,
AND MANAGEMENT ACCOMMODATED THEM, OR ACQUIESCED, AND OPTED FOR NOT
COMPELLING STAND-BY DUTY AND ROUTINE INSPECTIONS. HAVING TAKEN THE ONLY
ALTERNATIVE TO REQUIRING THE TOURS, IT IS CHARGED WITH FAILING TO
BARGAIN ABOUT THAT DECISION. I CANNOT VIEW IT AS A DECISION CONCERNING
WHICH MEANINGFUL BARGAINING COULD TAKE PLACE, IF IN FACT IT WAS A
DECISION IN THE SENSE OF A CHOICE BETWEEN REAL, VIABLE ALTERNATIVES.
THE EMPLOYEES UNANIMOUSLY REFUSED TO VOLUNTEER FOR THE DUTY, WHICH
PROVIDED WHAT THEY CONSIDERED TO BE INADEQUATE COMPENSATION. HAD
MANAGEMENT DECIDED TO REQUIRE THE UNWILLING WORKERS TO PULL SUCH TOURS,
IT WOULD HAVE HAD TO NEGOTIATE WITH THEIR REPRESENTATIVE TO EFFECT SUCH
A CHANGE AGAINST A BACKDROP OF TOTAL REJECTION. IT CHOSE TO AVOID THE
RISKS AND DISRUPTIONS OF SUCH AN UNPALATABLE MOVE BY DROPPING A PROGRAM
THAT NOBODY WANTED, ONCE ITS COMPENSATION WAS REDUCED TO LAWFUL LEVELS.
HAD MANAGEMENT MODIFIED WEEKEND STAND-BY WITHOUT NOTICE TO THE UNION, I
COULD UNDERSTAND THAT IT HAD VIOLATED AN OBLIGATION TO DISCUSS THE
PROPOSED CHANGES IN GOOD FAITH, AND TO EXPLORE WITH THE UNION
ALTERNATIVES THAT MIGHT BE AVAILABLE TO IT. I CANNOT EQUATE CHANGES OF
THAT ORDER-- WHERE DISCRETION CAN BE EMPLOYED-- WITH ABANDONMENT OF AN
ENTIRE PROGRAM WHICH IS VIRTUALLY, IF NOT IN FACT ALTOGETHER, FORCED
UPON MANAGEMENT. THE UNION WAS CLEARLY UNWILLING TO ACCEPT THE
REQUIREMENT THAT ITS MEMBERS PERFORM WORK FOR WHICH THEY WOULD NOT
VOLUNTEER. THERE IS NO OTHER REASONABLE AND REALISTIC ASSESSMENT OF THE
SITUATION. BEING UNWILLING TO IMPOSE SUCH A REQUIREMENT, MANAGEMENT
FOLLOWED THE ONLY OTHER PATH AVAILABLE TO IT. HAVING NO VOLUNTEERS UPON
WHOM TO CALL, IT DROPPED THE PROGRAM: IT DECIDED NOT TO SEEK OUT
NONEXISTENT VOLUNTEERS. I CAN THINK OF NO VIABLE ALTERNATIVE, AND I CAN
THINK OF NO SUBJECT OF USEFUL BARGAINING. NONE HAS BEEN SUGGESTED.
WHEN MANAGEMENT CEASED ASKING MEN WHO HAD INDICATED THEY WOULD NOT
WILLINGLY ACCEPT SUCH ASSIGNMENTS, THE UNION DID NOT COME FORWARD WITH
ANY REQUEST THAT THE "DECISION" TO ELIMINATE THE PROGRAM BE NEGOTIATED,
OR THAT ITS IMPACT AND "IMPLEMENTATION" BE DISCUSSED. PERHAPS IT DID
NOT DO SO BECAUSE IF APPRECIATED THE FACT THAT ITS CONSTITUENCY
"DECIDED" TO END THE PROGRAM BY VOTING TO PULL OUT OF IT. PERHAPS IT
DID NOT DO SO BECAUSE IT REALIZED THAT, REALISTICALLY, NO BARGAINING
COULD ENSUE WHICH HELD OUT ANY PROMISE THAT THIS PROBLEM COULD BE
RESOLVED. AND COLLECTIVE BARGAINING WHICH CANNOT OFFER REAL SOLUTIONS
TO REAL PROBLEMS WOULD SEEM TO BE A PURPOSELESS CHARADE. THE HEART OF
THE MATTER HERE WAS THAT THE LAW MANDATED THE LOSS OF SIX HOURS PAY
(FROM A BASE OF 15) FOR EACH MAN WHO PULLED WEEKEND STAND-BY, A VERY
SUBSTANTIAL AND A TOTALLY UNACCEPTABLE REDUCTION. THIS IS ALL THE UNION
EVER WANTED TO TALK ABOUT, AND ITS ONLY PURPOSE WAS TO PREVENT IT IF
POSSIBLE, OR AT LEAST TO DELAY IT. AS INDICATED EARLIER, I AM AT A LOSS
TO UNDERSTAND WHY THE UNION WOULD WISH TO CHANGE THE PROCEDURES-- OR THE
METHODS-- OF PROGRAM ADMINISTRATION, WHEN ITS MEMBERSHIP WANTED NO PART
OF THE PROGRAM UNLESS AND UNTIL THEY WERE GUARANTEED UNLAWFUL PAYMENT.
ABSENT SUCH PAYMENT AND A CONSEQUENT WILLINGNESS TO WORK AT ALL, WHAT
ASPECTS OF IMPACT AND IMPLEMENTATION COULD POSSIBLY INTEREST THEM AND
THEREFORE THEIR COLLECTIVE BARGAINING AGENT? IF THERE WERE ANY, THEY
DID NOT SURFACE.

IN ESSENCE, I CONCLUDE THAT THE "DECISION" TO ELIMINATE STAND-BY
OVERTIME WAS IN FACT FORCED UPON MANAGEMENT BY THE UNION'S MEMBERS. NOT
HAVING EMPLOYED ITS DISCRETION TO CHOOSE AMONG VIABLE, WORKABLE,
REALISTIC OPTIONS, THERE WAS NOTHING IT COULD USEFULLY DISCUSS WITH THE
UNION. IT COULD ONLY HAVE INFORMED THE UNION THAT THE VOLUNTARY PROGRAM
HAD BEEN DROPPED FOR LACK OF VOLUNTEERS-- THAT, IN FACT, IT COULD NOT
FUNCTION WITHOUT THEM. THAT HARDLY SEEMS TO BE A MESSAGE WHICH WOULD
CONVEY ANY INFORMATION TO A UNION WHICH WAS CERTAINLY AWARE OF, IF IT
DID NOT IN FACT ENCOURAGE, THE UNIVERSAL REJECTION OF WEEKEND STAND-BY
DUTY AT THE REDUCED RATES. SURELY THE UNION UNDERSTOOD THAT YOU CANNOT
RUN A VOLUNTARY PROGRAM WITHOUT VOLUNTEERS, AND IT COULD HARDLY HAVE
COME AS A SURPRISE THAT MANAGEMENT CEASED ROTATING WORK AMONG
VOLUNTEERS
WHEN THERE WERE NONE. ITS RESPONSE TO THESE REALITIES-- TO ASSIGN SUCH
WORK ONLY IN APPARENT EMERGENCIES AND TO DISCONTINUE STAND-BY AND
ROUTINE INSPECTIONS-- WAS IN FACT COMPELLED IN THE CIRCUMSTANCES. IT IS
NOT FOR ME TO SAY THAT IT SHOULD HAVE SERIOUSLY CONSIDERED OBLIGATORY
OVERTIME AND THROWN THE MATTER OPEN TO NEGOTIATIONS WHEN IT THOUGHT SUCH
A COURSE WOULD FURTHER SOUR THE LABOR RELATIONS CLIMATE. NOR WOULD IT
BE PROPER TO CONCLUDE THAT IT SHOULD HAVE FOREWARNED THE UNION OF THE
UNAVOIDABLE CONSEQUENCES OF THE MEMBERSHIPS' UNWILLINGNESS TO VOLUNTEER,
AND THUS HAVE AFFORDED IT AN OPPORTUNITY TO BARGAIN ABOUT IMPACT AND
IMPLEMENTATION. SUCH MATTERS AS THE METHOD FOR SELECTING THOSE WHO WILL
DO EMERGENCY OVERTIME COULD HAVE BEEN NEGOTIATED. HOWEVER, ADVANCE
NOTICE OF THE "DECISION" WAS NOT POSSIBLE. RESPONDENT COULD NOT
POSTPONE ITS "IMPLEMENTATION" SO AS TO AFFORD THE UNION A REASONABLE
OPPORTUNITY TO BARGAIN. AGAIN, IT COULD NOT MAINTAIN A VOLUNTARY
PROGRAM IN THE ABSENCE OF VOLUNTEERS. THUS, IF THE UNION DESIRED TO
NEGOTIATE A SYSTEM FOR ASSIGNING EMPLOYEES EMERGENCY OVERTIME, ITS
REQUEST TO DO SO HAD TO FOLLOW TERMINATION OF THE PRACTICE OF CHOOSING
VOLUNTEERS IN ROTATION. INTERESTINGLY, NO DEMANDS WERE MADE. FURTHER
EVIDENCE, PERHAPS, THAT THE UNION'S ONLY GAME-PLAN WAS TO FORESTALL
RESPONDENT'S COMPLIANCE WITH THE REQUIREMENTS OF FPM AS INTERPRETED BY
THE COMPTROLLER GENERAL.

ORDER

HAVING CONCLUDED THAT THE EVIDENCE DOES NOT SUPPORT THE ALLEGATION
THAT RESPONDENT FAILED AND REFUSED TO BARGAIN IN GOOD FAITH ABOUT THE
IMPACT AND IMPLEMENTATION OF ITS DECISION TO REDUCE STAND-BY OVERTIME
COMPENSATION, I RECOMMEND THAT THIS ALLEGED VIOLATION OF SECTION
7116(A)(1) AND (5) BE DISMISSED.

HAVING CONCLUDED THAT THE ELIMINATION OF ALL OVERTIME FOR WEEKEND
STAND-BY DUTY DID NOT, IN THE CIRCUMSTANCES, GIVE RISE TO AN OBLIGATION
TO BARGAIN, I RECOMMEND THAT THIS ALLEGED VIOLATION OF SECTION
7116(A)(1) AND (5) BE DISMISSED.

JOHN H. FENTON
CHIEF ADMINISTRATIVE LAW JUDGE

DATED: DECEMBER 17, 1980
WASHINGTON, D.C.

--------------- FOOTNOTES$ ---------------

/1/ CALL-BACK AND STAND-BY WERE USED INTERCHANGEABLY AND INCORRECTLY
AT THE HEARING. FOR PURPOSES OF THIS DECISION IT DOES NOT MATTER.

/2/ IT IS APPARENT THAT RICE THOUGHT HE PROVIDED NOTICE TO THE UNION
OFFICIALS WHO WERE, PERFORCE, PRESENT AT THE MEETING IN THEIR CAPACITY
OF EMPLOYEES. THIS DOES NOT, OF COURSE, DETRACT FROM THE UNLAWFUL
NATURE OF THE FAIT ACCOMPLI WHICH WAS PRESENTED TO THE UNION.

/3/ AS INDICATED, I FIND IT DIFFICULT TO UNDERSTAND WHY THE METHOD OF
ADMINISTRATION WAS OF CONSEQUENCE, IN VIEW OF THE FACT THAT THE PROPOSED
REDUCTION ITSELF MET WITH SUCH A HOSTILE RECEPTION AND TURNED OUT IN
FACT TO BE UNACCEPTABLE TO EVERYONE. BE THAT AS IT MAY, IT IS NOT
CONTESTED THAT MANAGEMENT'S REACTION TO THE MANY VIEWPOINTS RECEIVED WAS
THAT IT WOULD BE NECESSARY FOR THE UNION TO COME FORWARD WITH SOME
INSTITUTIONAL REACTION AND THAT ARGUMENTS WITH VARIOUS MEMBERS WERE
PROFITLESS.

/4/ NOR DID THE UNION, ON THIS OR ANY OTHER OCCASION, EVER RESPOND TO
MANAGEMENT'S REQUEST THAT IT SORT OUT THE MANY AND CONFLICTING DEMANDS
OF ITS MEMBERSHIP AND COME FORWARD WITH PROPOSALS FOR ADMINISTERING SUCH
OVERTIME.