FLRA.gov

U.S. Federal Labor Relations Authority

Search form

Menu

You are here

  • Home
  • 30:0961(107)CA - VA, Washington, DC and VA Medical Center, Leavenworth, KS and AFGE Local 85 -- 1988 FLRAdec CA

30:0961(107)CA - VA, Washington, DC and VA Medical Center, Leavenworth, KS and AFGE Local 85 -- 1988 FLRAdec CA


[ v30 p961 ]
30:0961(107)CA
The decision of the Authority follows: 

30 FLRA No. 107

VETERANS ADMINISTRATION
WASHINGTON, D.C.

      and

VETERANS ADMINISTRATION MEDICAL
CENTER, LEAVENWORTH, KANSAS

              Respondents

      and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 85

              Charging Party

Case No. 7-CA-60500

DECISION AND ORDER

I. Statement of the Case

This unfair labor practice case is before the Authority based on exceptions to the attached Administrative Law Judge's Decision filed by the Veterans Administration Medical Center, Leavenworth, Kansas (Respondent Leavenworth) and the General Counsel. The complaint alleges that the Veterans Administration, Washington, D.C. (Respondent Washington) and Respondent Leavenworth violated section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) when they unilaterally changed firefighters' workweeks from 60 hours to 56 hours and refused to bargain in good faith with the American Federation of Government Employees, Local 85 (the Union) over the substance and impact and implementation of the change. For the reasons stated below, we find that the Respondents did not commit the unfair labor practices alleged in the complaint.

II. Facts

The facts, more fully set forth in the Judge's Decision, are summarized below. The American Federation of [PAGE] Government Employees, AFL - CIO (AFGE) is the exclusive representative of a national consolidated unit which includes firefighters at Respondent Leavenworth. AFGE and Respondent Washington are parties to a national agreement which covers firefighters at Respondent Leavenworth. The Union is an affiliate and agent of AFGE.

On August 21, 1985, Respondent Washington promulgated Veterans Administration Regulation, DM&S Supplement MP-5, Part 1, Chapter 610 (Regulation MP-5). This regulation permitted local activities to use a 56-hour workweek in addition to the previously authorized workweek of 60 hours for firefighters. The regulation stated that "(l)ocal officials should meet their labor relations responsibilities when implementing this policy." See Judge's Decision, slip op. at 13. The regulation also sets forth certain factors that activities should consider when deciding which workweek to use.

By a memorandum dated June 7, 1986, Respondent Leavenworth notified the Union that beginning in July 1986, the workweek for firefighters would be changed from 60 to 56 hours. The 60-hour workweek resulted in a 12-hour overlap in shifts each week when two crews were on duty at the same time even though the services of only one crew were required. By letter of June 11, 1986, the Union requested to meet and "negotiate the 56-hour workweek" before implementation. See Judge's Decision, slip op. at 5. The Respondent Leavenworth replied by memorandum of June 11, 1986, that it would negotiate over the "impact and implementation of the 56-hour workweek." The memorandum also established meeting dates and times and advised that two management officials would represent Respondent Leavenworth. See id.

The parties met first as scheduled on June 20, 1986. The Union proposed to retain the 60-hour workweek. The Union also proposed "disrupted sleep pay" and indicated that it was not opposed to the 56-hour workweek if employees could be compensated for the loss of pay and benefits. The parties agreed to meet again on June 26.

On June 26, the Union Vice - President and management representatives met. The Union Vice - President was not authorized to negotiate on behalf of the Union in the absence of the Union President. The Union President did not appear at the scheduled time for the meeting. The Union Vice - President told management that the Union President had a [ v30 p2 ] problem as to whether she could be released for negotiations. One of the management representatives then called the Union President and her supervisor and had her cleared for release from other work for negotiations. The Union President did not attend the meeting, however. She testified that she did not come to the meeting because "there was just no purpose in it." Judge's Decision, slip op. at 10. The Union Vice - President, in the meantime, had left to retrieve his briefcase and did not return. After the Union President failed to appear and the Union Vice - President did not return to the meeting, both management representatives left to return to their respective offices. As found by the Judge, "(t)here were no negotiations on June 26 principally, if not solely, because of the atrocious conduct of (the) Union President(.)" Id. at 9. The Judge also found, based on his determinations regarding the credibility of the witnesses, that the Union Vice - President asked on June 26 that another meeting be set. Id.

By memorandum dated June 27, management advised the Union President as follows:

Following the prescheduled meeting of June 26, 1986, at 1:30 p.m. . . . this is to inform you of the intended implementation of the Firefighter 56-hour workweek beginning July 6, 1986 . . . . Should there be any questions, please let us know.

Judge's Decision, slip op. at 12. On June 30, the Union President wrote a letter to management requesting to negotiate before implementation. However, as found by the Judge, "(t)he Union outdid itself in assuring non-delivery of its letter" by misdirecting and mishandling the letter, and the Judge stated that he could not find that management ever received the letter. Id. at 11-12. No further bargaining took place. The 56-hour workweek was implemented on July 6, 1986.

III. Administrative Law Judge's Decision

As an initial matter, the Judge found that the decision to change the firefighters' workweek was a decision negotiable only at the election of the agency pursuant to section 7106(b)(1) of the Statute. The Judge further found, however, that Respondent Washington made the election that the decision to change firefighters' workweeks was negotiable when it promulgated the regulation authorizing use of the 56-hour workweek. The Judge found that while the regulation gave local activities the option to use the 56-hour workweek, it specifically provided that local officials should meet their labor relations responsibilities when implementing the [ v30 p3 ] policy and set forth illustrative factors to be considered in determining which workweek is most appropriate. based on his finding that Respondent Washington had made an election under section 7106(b)(1), the Judge found that Respondent Leavenworth lacked authority to declare its decision to institute the 56-hour workweek negotiable only at its election. The Judge stated (at 15 of his Decision) that Respondent Leavenworth "was bound by the Regulation of its parent agency, including the election made thereby to negotiate any change" in the firefighters' workweek.

The Judge found, based on his credibility findings, that the Union sought to negotiate over the substance of the decision to change the workweek and that Respondent Leavenworth's refusal to do so violated section 7116(a)(1) and (5) of the Statute. He found that even though the Union President failed to attend negotiations on June 26, the Union did not abandon its right to negotiate and Respondent Leavenworth improperly refused to schedule a further negotiating session as requested by the Union. The Judge also found that even if the substance of the decision to change the workweek was not negotiable, Respondent Leavenworth had a statutory duty to bargain pursuant to section 7106(b)(2) and (3) on the impact of the change on unit employees because the impact was "foreseeable and . . . affected . . . their starting time, their earnings, and their leave accrual." Judge's Decision, slip op. at 15.

The Judge recommended that a status quo ante remedy be issued. He stated that such a remedy was necessary to effectuate the purposes and policies of the Statute, "(e)ven if, contrary to my determination that the decision to change the established workweek was negotiable, Respondent (Leavenworth) were obligated only to bargain concerning the impact and implementation of its decision to implement the 56-hour workweek(.)" Judge's Decision, slip op. at 20. He also recommended a backpay award "deferred and conditioned on the outcome of bargaining in accordance with the Authority's decision in Federal Aviation Administration, Washington, D.C., 27 FLRA (230 (1987))." Id. at 20-21. He found that such a conditional award was an appropriate remedy because it could not "be established with certainty that the implementation of the 56-hour workweek, with the attendant loss in pay and leave, would not have occurred 'but for' the subsequent refusal of Respondent (Leavenworth) to schedule further negotiations." Id. at 23. Additionally, the Judge noted that immediate backpay should be denied, in part, because of the Union President's failure and refusal to negotiate on June 26. [ v30 p4 ]

Finally, the Judge found that it would not effectuate the purpose and policies of the Statute to find an additional violation against Respondent Washington since the obligation to bargain was delegated to local management which was acting as its agent. Therefore, the Judge recommended dismissal of the allegations of the complaint against Respondent Washington.

IV. Positions of the Parties

Respondent Leavenworth contends that the record evidence does not support the Judge's conclusion that by issuing the regulation, Respondent Washington made the election to negotiate over the decision to change the length of the firefighters' workweek. It asserts that: (1) the Judge erred in his factual findings and his evaluation of the evidence; (2) the General Counsel failed to meet the burden of proof that there was a violation; and (3) it did not refuse to negotiate in good faith.

The General Counsel agrees with the Judge's conclusion that Respondent Leavenworth was obligated to bargain over the substance of the decision to change the length of the workweek, but disagrees with the Judge's reasoning. The General Counsel contends that Respondent Leavenworth was obligated to bargain over the substance of the decision to change the length of the workweek because it had the discretion to make, or not to make, the change. The General Counsel also asserts that the Judge erred in applying Authority case precedent for backpay in an impact and implementation context to this situation concerning the failure to bargain over the substance of the decision to change the length of the workweek. Finally, the General Counsel contends that the Judge erred in not finding a violation against Respondent Washington.

V. Discussion

We find that in the circumstances of this case the Respondents did not commit the unfair labor practices alleged in the complaint. In our view, the decision whether or not to implement the 56-hour workweek was one over which Respondent Leavenworth had no duty to bargain under the Statute because the decision constituted the exercise of management's rights under the Statute. The decision to implement the 56-hour instead of the 60-hour workweek-is one which involves management's right to determine the duration of work assignments of employees and is encompassed by its right to assign work under section 7106(a)(2)(A) of the Statute. As such, the decision is not within the duty to [ v30 p5 ] bargain. See Veterans Administration Regional Office and American Federation of Government Employees, Local 1765, 30 FLRA No. 1 (1987). See also Department of the Navy v. FLRA, 814 F.2d 982, 984-85 (4th Cir. 1987). While the decision itself is not within the duty to bargain, the impact and implementation of that decision is within the duty to bargain under section 7106(b)(2) and (3) of the Statute.

We find also, in agreement with the Judge, that the Agency's decision to change the workweek constituted an exercise of its right to determine the number of employees assigned to a tour of duty under section 7106(b)(1). Respondent Leavenworth's decision to implement the 56-hour schedule would end a 12-hour overlap on shifts each week when two crews are on duty at the same time even though the services of only one crew are required. Therefore, a proposal to return to a 60-hour shift would interfere with management's right under section 7106(b)(1) to determine the number of persons assigned to do the work, and would be negotiable only at the election of the agency. See Department of the Navy v. FLRA, 814 F.2d at 985.

However, we find, in disagreement with the Judge, that no election was made to negotiate over the decision to change the workweek. The record does not support the Judge's finding that by issuing the regulation, Respondent Washington made an election within the meaning of section 7106(b)(1). The regulation issued by Respondent Washington permitted local Veterans Administration activities to use a 56-hour workweek for firefighters, in addition to the previously authorized 60-hour workweek. The record does not establish that the regulation required local activities to bargain on the substance of the decision as to how long the workweek would be.

The statement in the regulation that "(l)ocal officials should meet their labor relations responsibilities when implementing this policy" is not sufficient to constitute an election by Respondent Washington directing its local activities to bargain on the substance of changes in the length of the workweek. Rather, we find that the effect of the regulation was to advise local activities that if they decided to implement a 56-hour workweek, they should fulfill whatever bargaining obligation existed in those circumstances. In this case, it is clear from the record that for the reasons stated above, Respondent Leavenworth had no obligation to bargain over the substance of its decision to change the workweek length. The only bargaining obligation which existed in the circumstances of this case was the Respondent Leavenworth's obligation to bargain over the impact and implementation of its decision. [ v30 p6 ]

Because the decision implicates the exercise of management's rights as discussed above, we reject the General Counsel's assertion that the extent to which the Union had a right to bargain in this case was equivalent to the extent of Respondents' discretion. Management has no duty to bargain on matters which are reserved solely to its determination under section 7106 of the Statute, subject to section 7106(b)(2) and (3). In this case, the bargaining obligation extended only to the impact and implementation of the decision to institute the 56-hour workweek.

We find further that Respondent Leavenworth did not violate its bargaining obligation in this case. Respondent Leavenworth advised the Union that it would negotiate over the impact and implementation of the 56-hour workweek and set up meeting dates and times for those negotiations. Two management and two Union representatives met on June 20, 1986, discussed their concerns on the implementation of the change in the workweek, and agreed to meet again on June 26. On June 26, the management representatives were present at the scheduled meeting. On behalf of the Union, only the Union Vice - President attended the start of the scheduled bargaining session, but he was without any authority to negotiate. When the Union President was released from other work in order to attend the negotiating meeting, she failed to come to the meeting. In the meantime, the Union Vice - President left the meeting. The management representatives waited and, when neither union representative appeared, left and returned to their offices.

Section 7114(b)(2) of the Statute requires the parties to provide representatives who are empowered to negotiate and enter into agreements on all matters within the scope of negotiations in the bargaining unit. See National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 13 FLRA 554, 556 (1983). We find that management was prepared to negotiate over the impact and implementation of its decision to institute a 56-hour workweek, had scheduled meetings with the Union for that purpose, and had designated representatives to act on its behalf. In light of these circumstances and the Union's failure to provide authorized representatives to negotiate at the June 26 meeting, we do not find that Respondent Leavenworth's actions following the Union Vice - President's further request to negotiate constituted a failure to bargain in good faith over the impact and implementation of its decision in violation of section 7116(a)(1) and (5) of the Statute. [ v30 p7 ]

VI. Conclusion

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing, find that no prejudicial error was committed, and thus affirm those rulings. We have considered the Judge's Decision and the entire record in this case, and adopt his findings and conclusion that Respondent Washington did not violate the Statute as alleged in the complaint. We further conclude, for the reasons stated above, that Respondent Leavenworth did not violate the Statute as alleged. 1

VII. Order

The complaint in this case is dismissed.

Issued, Washington, D.C.,January 21, 1988.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v30 p8 ] 

VETERANS ADMINISTRATION,
WASHINGTON, D.C.

    and

VETERANS ADMINISTRATION
MEDICAL CENTER, LEAVENWORTH,
KANSAS

              Respondents

    and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 85

              Charging Party

Case No.: 7-CA-60500

Maurice D. Copp, Esquire
         For the Respondents

Eileen B. Quigley, Esquire
Nicholas J. LoBurgio, Esquire
         For the General Counsel

Before: WILLIAM B. DEVANEY
        Administrative Law Judge

DECISION

Statement of the Case

This proceeding, under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101, et seq., 2 and the Final Rules and Regulations issued thereunder, 5 C.F.R. [PAGE] 2423.1, et seq., concerns an alleged unilateral change of an established 60-hour workweek for firemen to a 56-hour workweek without completion of bargaining as to either the decision to change the workweek or as to the impact and implementation of the changes. Respondent asserts that it did negotiate in good faith over the impact and implementation of the change; that the Union did not request to negotiate over the substance of the change, but, in any event, there was no duty to bargain over the decision to change the workweek because this was a reserved management right.

This case was initiated by a charge (G.C. Exh. 1(a)) filed on June 30, 1986, which alleged violations of 16(a) (1) and (5); a First Amended Charge (G.C. Exh. 1(b)) filed on October 1, 1986, which alleged violation of 16(a)(1) only; and by a Second Amended Charge (G.C.Exh. 1(c)) filed on October 23, 1986, which alleged violations of 16(a)(1) and (5). The Complaint and Notice of Hearing issued on October 31, 1986 (G.C. Exh. 1(d)), alleged violations of 16(a)(1) and (5), and set the hearing for December 11, 1986, pursuant to which a hearing was duly held on December 11, 1986, 3 in Kansas City, before the undersigned.

All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues presented, to examine and cross-examine witnesses, and were afforded the opportunity to present oral argument which each party waived. At the conclusion of the hearing, January 12, 1987, was fixed as the date for mailing post-hearing briefs, which time was subsequently extended, on motion of the General Counsel, with which the other parties concurred, for good cause shown, to January 20, 1987. Respondent and General Counsel each timely mailed a brief, received on, or before January 27, 1987, which have been carefully considered. Upon the basis of the entire record, I make following findings and conclusions: [ v30 p2 ]

Findings

1. At all times material, American Federation of Government Employees, AFL - CIO (hereinafter also referred to as "AFGE") has been the certified exclusive representative of a national consolidated unit, more fully described in Paragraph 4(a) of the Complaint (G.C. Exh. 1d) which includes employees located at Respondent Veterans Administration Medical Center (hereinafter referred to as "Respondent") (G.C. Exh. 1d, Par. 4(b), admitted, G.C. Exh. 1e). As of August 13, 1982, and continuing to date, Veterans Administration, Washington, D.C. and AFGE have been parties to a national agreement which covers employees of Respondent (G.C. Exh. 1d, Par. 5, admitted G.C. Exh. 1e). At all times material, Local 85 (hereinafter referred to as the "Union") has been an affiliate and agent of AFGE (G.C. Exh. 1d, Par. 6, admitted, G.C. Exch. 1e).

2. Although neither party introduced the Master Agreement between AFGE and Veterans Administration, Washington, D.C., there is no dispute, as notice was given to the Union, ". . . in accordance with Article 4, Section 5 of the Master Agreement. . . ." (G.C. Exh. 2), that the change of tours of duty for firefighters was subject to negotiation at the local level between the Union and Respondent.

3. Respondent employs 11 firefighters who work on three shifts (G.C. Exh. 9 Tr. 24, 80). They provide fire protection for all the domicilaries and the two hospitals and operate an ambulance out of the fire station (Tr. 22). Prior to July 6, 1986, the firefighters worked a 60-hour workweek. The 60-hour workweek consisted of three shifts working a 24-hour day which began at 12:00 noon (Tr. 26). 4 [ v30 p3 ]

The duty hours varied; sometimes a shift had 24 hours off between shifts; sometimes 48 to 72 hours off between shifts; and, on occasion a firefighter had five days off duty (Tr. 26).

4. In November, 1985, there were negotiations on the 56-hour workweek (Tr. 203) which negotiations were tabled because the Fire Department was under a A-76 study (contracting out bids) (G.C. Exh. 1(a)). Respondent had been represented in these negotiations by Mr. Roger Porter, who was not called as a witness; and neither the negotiations nor the date they were tabled was developed by any participant.

5. By memorandum dated June 7, 1986, Respondent notified the President of the Union that effective with the first pay period in July, 1986, the workweek for firefighters would be changed to 56 hours with a starting time of 8:00 a.m. (rather than 12:00 noon which had been the starting time for the 60-hour workweek). The memorandum stated as follows:

"1. This is to notify you (in accordance with Article 4, Section 5 of the Master Agreement) that effective with the first pay period in July 1986 the Engineering Service will change the tours of duty for firefighters to a 56-hour workweek 8:00 am to 8:00 am (24 hours on duty and 48 hours off duty).

"2. The reason for this change is to make us as cost effective as possible. We have been notified by VA Central Office that the A-76 process is on indefinate (sic) hold pending funding." (G.C. Exh. 2). 5 [ v30 p4 ]

6. By letter dated June 11, 1986, the Union requested to ". . . negotiate the 56-hour workweek for the Fire Department. We request to meet and negotiate before implementation. . . ." (G.C. Exh. 4). Respondent replied by memorandum dated June 16, 1986, which stated, in part:

"2. Management will negotiated impact and implementation of the 56-hour workweek for Firefighters." (G.C. Exh. 5) (Emphasis supplied).

Respondent's memorandum further gave three meeting dates and time: June 20 (12:30 P.M.); June 23 (9:00 a.m.); June 26 (12:30 p.m.) and advised that Messrs. Weldy and Wingerter would represent Respondent (G.C. Exh. 5).

7. By letter dated June 17, 1986, the Union requested ". . . a pay scale for firefighters on what GS-3's, GS-4's, GS-5's, and GS-6's would make in a months time (working 56 hours) verses (sic) their current wages (working 60 hours)." (G.C. Exh. 6).

8. The parties met on June 20, 1986, at 12:30 p.m., as scheduled in Mr. Porter's Office. President Wilber and Vice President Ron Combs, also a steward and a firefighter, represented the Union and Mr. Charles R. Weldy, Assistant Chief of Engineering Service, and Mr. Paul E. Wingerter, Labor Relations Specialist, represented Respondent. Mr. Wingerter left at about 12:55 p.m. to attend a meeting with the Director of the Medical Center (Tr. 167). Respondent's notice had stated that: (a) it intended to change the workweek from 60 to 56 hours; and (b) each tour of duty would start at 8:00 a.m. rather than 12:00 noon; but the testimony of all witnesses is devoid of any reference whatever on June 20 of the change of starting time. As Mr. Weldy testified, the June 20 negotiations clearly went back to earlier negotiation in 1985 on the 56 hour workweek (Tr. 203; G.C. Exh. 1(a)) and, undoubtedly, explains the seemingly strange absence of discussion of a change of starting time, which one would have assumed would have been of interest to the Union, as well as marked differences of recollection as to what proposals the Union made on June 20. Three events on June 20, 1986, are beyond question: First, the parties agreed to meet again on June 26 at 1:30 p.m. (G.C. Exh. 8): second, Mr. Weldy presented to the Union a hand written document (G.C. Exh. 7) which showed a sample schedule for [ v30 p5 ] firemen beginning Sunday, July 6 6 and a statement of leave accrual under the 56-hour workweek; and third, Mr. Weldy acknowledged the Union's data request of June 17, 1986, and said he would contact Fiscal Service and obtain the information. 7 (Tr. 203). The information requested on June 17, 1986, was supplied by Respondent by memorandum dated July 1, 1986 (G.C. Exh. 12). The information supplied by Mr. Weldy on June 20, 1986, while quite relevant to the negotiations, was not the information requested on June 17, 1986, and there was no testimony as to why the data was submitted on June 20 and no testimony concerning the quite different schedule (see, n. 5, supra), which, again, suggests a carryover from the earlier negotiations.

Except for the three matters, set forth above, as to which there is no disagreement, there was sharp disagreement as to what transpired on June 20. The Union's request to negotiate of June 11, 1986, "Local 85 is requesting to negotiate the 56-hour workweek for the Fire Department. We request to meet and negotiate before implementation" (G.C. Exh. 4), at best is ambiguous as to whether the Union sought [ v30 p6 ] negotiations as to the substance of the decision to adopt the 56-hour workweek or only as to impact and implementation. On the other hand, Respondent's memorandum of June 16, 1986, is quite clear that "Management will negotiate impact and implementation of the 56-hour workweek for Firefighters" (G.C. Exh. 5). Neither Mr. Combs nor Ms. Wilber mentioned Respondent's written statement that it would negotiate "impact and implementation" and Mr. Combs testified that Ms. Wilber made an oral proposal for interrupted sleep pay (Tr. 36). Later, Mr. Combs testified that, ". . . the union recommended to keep the 60-hour workweek status quo because of the --we were very concerned about the pay issue." (Tr. 40). Ms. Wilber testified that,

"A. . . . We were not totally dead set against the 56 hour is there was someway we could compensate in the loss in pay and benefits to the firefighters.

"A. So we had made a proposal to include disruptive sleep." (Tr. 121

On cross-examination, Ms. Wilber testified,

"A. Okay. We proposed -- our proposal was to stay with the 60-hour work week. But if they were really wanting the 56-hour work week, if there was some way we could compensate for the loss of pay and benefits to the firemen with our proposal of disruptive sleep, they (sic) we would consider the 56-hour, if it didn't impact all that great on the firefighters." (Tr. 153).

Mr. Wingerter testified that the Union made no proposals on June 20 while he, Wingerter, was present (Tr. 166). Mr. Weldy testified that no proposals were made by the Union on June 20, "None whatsoever, verbal or written." (Tr. 205). Mr. Weldy further testified,

"A. Well, they didn't really make any position clear to me. I didn't -- other than the fact of the implementation, I didn't understand beyond the leave and the pay any other problems that they were really having in the first session. Ron Combs had indicated that he was doing this in behalf of the union and that those were the issues that he wished to resolve. [ v30 p7 ]

"I didn't understand really beyond that what the basis of the negotiation really was.

"A. . . . They just said that they were objecting to the implementation of it and the impact. And as I said a few moments ago, I was somewhat confused." (Tr. 204-205) ". . . I wasn't really sure what the basis of the negotiation request meant by the implementation. And they said, well, they were talking about how it would impact the employees. And as part of that, they were concerned about the impact on annual leave and also on their pay. And I said, well, I had understood by an earlier briefing and reading some information from a memorandum or letter that it went back I believe around November of '85 when Roger Porter was involved. But they were -- they were still talking about the annual leave. And . . . Ron Combs, said that the annual leave had been pretty well resolved. But the question of pay still was up in the air." (Tr. 203).

It seems probable, as Mr. Weldy testified, that the Union did not "make" its disrupted sleep proposal on June 20, for, as Ms. Wilber's testimony shows, the Union had made the proposal in earlier negotiations with Mr. Porter; but whether made on June 20, or earlier, the record shows, and I find, that the Union's proposal for disrupted sleep pay was discussed on June 20. This is wholly consistent with Mr. Weldy's repeated statement that "pay" was discussed. It seems equally probable that the Union did not, on June 20, directly state, as a proposal, that the 60-hour workweek be retained, or that the status quo be maintained; but, rather, as Ms. Wilber stated, she actually said that the Union was "not totally dead set against the 56-hour (workweek) if there was something we could compensate in the loss of pay." Nevertheless, the record shows, and I find, that the 60-hour workweek be retained and that the Union reiterated its demand on June 20. Not only was this clearly the predicate for Ms. Wilber's statement, "We were not totally dead set against" the 56-hour workweek; but Mr. Weldy's testimony makes it clear that he fully understood that the Union was "objecting to the implementation", which I find all parties well understood meant changing or putting into [ v30 p8 ] effect the 56-hour workweek, as well as "the impact". Nor is there any inconsistency in a party making a demand but indicating that it would be willing to withdraw that demand if agreement on some other item could be reached. Indeed, this is the very essence of collective bargaining which Ms. Wilber's testimony well stated, in effect, that the Union wanted to retain the 60-hour workweek but wasn't unalterably opposed to adopting the 56-hour workweek if they could agree on something to compensate for the loss of pay and benefits.

Moreover, the record leaves no doubt whatever that the meeting of June 20 was a very preliminary meeting. The data requested by the Union on June 17 had not been supplied by Fiscal Service; the document furnished by Mr. Weldy on June 20 was not discussed; Mr. Weldy was uncertain as to his position; there was little discussion; and the chief topics of discussion were the setting up the next meeting and Mr. Weldy's agreement to obtain the data the Union had requested on June 17.

9. On June 26, 1986, Mr. Weldy and Mr. Combs arrived at Mr. Porter's office prior to 1:30 p.m., the time agreed upon on June 20, for the next meeting, and Mr. Wingerter arrived shortly thereafter. Union President Wilber did not appear. The following is a composite of the testimony which I credit. I did not find the testimony of Messrs. Combs, Weldy and Wingerter and of Ms. Wilber wholly credible and therefore find that only the following composite of their testimony can be accepted.

There were no negotiations on June 26 principally, if not solely, because of the atrocious conduct of Union President Wilber. I find, as a composite of the testimony of all witnesses, as follows: Mr. Combs told Messrs. Weldy and Wingerter that there was a problem as to whether Ms. Wilber had been released from duty for negotiations (I do not credit Mr. Weldy's testimony that his secretary gave him a telephone message from Ms. Wilber that she could not attend because of a conflict, but conclude, as found, that Mr. Combs informed Messrs. Weldy and Wingerter that there was a problem as to whether Ms. Wilber had been released for negotiations). Mr. Wingerter immediately left Mr. Porter's office and went to his office and called Ms. Wilber's supervisor and was told that she had been released from duty for negotiations. Mr. Wingerter earlier in the day had talked to FLRA representative Paul Hirokawa and had told Mr. Hirokawa, who wanted to talk to Ms. Wilber, that they had negotiations set for 1:30, and asked if he could talk to her later. Mr. Hirokawa had no objection whatever and said he would call to 2:30. [ v30 p9 ]

Having ascertained that Ms. Wilber had been released for negotiations and having previously arranged for Mr. Hirokawa to call Ms. Wilber at 2:30 p.m., Mr. Wingerter called Ms. Wilber and told her she had been released for negotiations and that the time for Mr. Hirokawa's telephone call had been changed to 2:30 and that she should come on over. Ms. Wilber concedes that Mr. Wingerter called her and told her the time of Hirokawa's telephone call had been changed and that she "could come on over" (Tr. 132), but she said she did not because ". . . there was just no purpose in it." (Tr. 132). Ms. Wilber would place the call from Mr. Wingerter at 2:30 p.m., but I find that Mr. Wingerter made the call at about 1:45 p.m.; that after he called Ms. Wilber, Mr. Wingerter returned to Mr. Porter's office. Mr. Weldy told Mr. Wingerter that Mr. Combs had gone to the Union office to get his briefcase. When Ms. Wilber had failed to appear, Mr. Combs, at about 1:45 p.m. had left, ostensibly to get his briefcase. Actually, Mr. Combs, who obviously expected Ms. Wilber, stated that he had not been authorized to negotiate alone (Tr. 84). Messrs. Weldy and Wingerter waited in Mr. Porter's office several minutes but when Mr. Combs did not return and Ms. Wilber did not appear, at, or shortly before, 2:00 p.m., they left and returned to their respective offices. Mr. Weldy went to another meeting at about 2:30 p.m. and, sometime after 2;30 p.m., Mr. Combs appeared at Mr. Wingerter's office. I do not credit Mr. Combs' testimony that he told Mr. Wingerter he, Combs, was ready to negotiate; 8 nor do I credit Mr. Wingerter's testimony that Mr. Combs did not ask that another meeting be set. Rather, I find that Mr. Combs did, as he testified, ask that another meeting be set, but Mr. Wingerter made no response. Mr. Combs testified that Mr. Wingerter told him on June 26 that the decision to adopt the 56-hour workweek was non-negotiable (Tr. 50, 54, 56); Mr. Wingerter admits [ v30 p 10 ] that he made the statement, but asserted that he made it on June 20 to Mr. Combs and to Ms. Wilber (Tr. 175). As Mr. Weldy did not testify having heard the statement, I somewhat reluctantly conclude 9 that Mr. Wingerter made the statement to Mr. Combs on June 26 when Mr. Combs came to his, Wingerter's, office.

10. On June 27, 1986, Mr. Weldy issued a memorandum (G.C. Exh. 9) which he posted which provided as follows:

"As everyone should know, there is an intent to implement the 56-hour workweek beginning July 6, 1986. As previously indicated from MP-5, Chapter 610, this action is implemented by the posting of a new work schedule that can be seen on your bulletin board." (G.C.Exh. 9).

Attached was a further document which: (a) stated that all shifts will start at 8 a.m. and end at 8 a.m., instead of 12 noon to 12 noon; and (b) showed assignments to each of the three shifts. In addition, a schedule, beginning on July 6, 1986, was shown for the month of July (G.C.Exh. 9).

11. On June 30, 1986, Ms. Wilber wrote a letter, addressed to Mr. Weldy, which stated, in part, as follows:

"Once again we are requesting to negotiate before implementation. Negotiations were never finalized. . . ." (G.C. Exh. 10).

Respondent denied that it received Ms. Wilber's letter of June 30. The Union outdid itself in assuring non-delivery of [ v30 p11 ] its letter. First, it was addressed to Mr. Weldy, "Assistant Chief Personnel". Second, Mr. Combs testified that he put it in the Engineering Service "out" basket, which meant that instead of being in the mail for the Engineering Service it would have been picked up and taken elsewhere. As both Mr. Weldy and Mr. Wingerter denied that the letter was ever received, I can not, in view of the mid-direction and mishandling, find that it was ever received. 10

12. By memorandum dated June 27, 1986, Mr. Weldy advised Ms. Wilber as follows:

"Following the prescheduled meeting of June 26, 1986, at 1:30 p.m., and the meeting between R. Combs and P. Wingerter, this is to inform you of the intended implementation of the Firefighter 56-hour workweek beginning July 6, 1986, and as previously announced in MP-5, Chapter 610. Should there be questions, please let us know." (G.C. Exh. 11).

Ms. Wilber testified that she received the memorandum, as noted thereon, on July 1, 1986.

13. By memorandum dated July 1, 1986, addressed to Ms. Wilber, Respondent's Chief of Fiscal Service, Mr. Nicholas Aguilar, supplied the information requested by the Union on June 17, 1986 (G.C. Exh. 12). A written notation shows that the material was received on July 9, 1986. 11 [ v30 p12 ]

14. Veterans Administration Regulation, DM&S Supplement MP-5, Part 1, Chapter 610, August 21, 1985, (hereinafter also referred to as "MP-5") provides, in part, as follows:

"2. This section A replaces the previously issued chapter 610 dated April 8, 1971, and is intended to permit the use of a 56-hour tour of duty in addition to previous authority permitting the use of a 60-hour tour for DM&S firefighters. . .

"4. Labor - Management Relations. Local officials should meet their labor relations responsibilities when implementing this policy.

"6. Implementation: The provisions of this supplement may be implemented at the beginning of any pay period commencing on or after May 26, 1985."

610A.01 PIPE PROTECTION PERSONNEL

"b. Scheduling

"(1) A regularly scheduled administrative workweek of 56 hours or 60 hours is authorized for firefighters with a tour of duty which combines actual work with a standby requirement. Either tour may be used when firefighters are assigned to perform standby [ v30 p13 ] duty which is interspersed with actual work throughout the entire tour.

c. Selection of Work Schedules. Utilization of the 60-hour tour of duty for firefighters . . . may result in an undesirable 12-hour overlap each week when two firefighting crews are on duty even though the services of only one crew are required. Selection of the optional 56-hour tour could, in such instances, reduce agency personnel costs, utilizing existing manpower more effectively, and be preferred by employees. When considering which tour is most appropriate for use, examination of factors such as overtime costs, facilities for eating and sleeping, ease of scheduling, as well as employee preference should be considered." (G.C. Exh. 3)

Premium rates for a 60-hour tour of duty are higher (10%) than the premium rates for a 56-hour tour of duty (7 and 1/2%) (MP-5, Part 1, Chapter 610A.01(e)); and annual leave accrual is higher for a 60-hour workweek than for a 56-hour workweek (610A.01(f)).

15. The parties did not meet after the abortive meeting on June 26, 1986; the Union's original charge, dated and signed on June 27, 1986, was filed on June 30, 1986 (G.C. Exh. 1(a), Tr. 95, 97); and the 56-hour workweek was implemented July 6, 1986.

Conclusion

A decision to change the workweek for firemen from 60 hours to 56 hours was a decision negotiable only at the election of the agency, pursuant to 6(b)(1) of the Statute, National Treasury Employees Union, 21 FLRA No. 85, 21 FLRA 667 (1986); Department of the Air Force, Scott Air Force Base, Illinois, 20 FLRA No. 107, 20 FLRA 857 (1985); Department of the Air Force, Lowry Air Force Base, Colorado, 16 FLRA No. 144, 16 FLRA 1104 (1984); New York State Nurses Association, 12 FLRA No. 102, 12 FLRA 540 (1983); but here the Veterans Administration, Washington, D.C., the level of exclusive representation, by Regulation, MP-5, made the election that such decision is negotiable. Thus, MP-5 authorized the use of 56-hour tour of duty in addition to the previously authorized 60-hour tour of duty and, while [ v30 p14 ] local activities were afforded the option to use the 56-hour tour of duty, MP-5 specifically provided that, "Local officials should meet their labor relations responsibilities when implementing this policy" and further specifically set forth illustrative, but not exclusive, factors to be considered in determining which tour is "most appropriate for use." As the election to make such decision negotiable was made by Veterans Administration, Washington, D.C., at the level of recognition, Respondent Medical Center was without legal authority, pursuant to 6(b)(1) of the Statute, to declare its decision, to change the tour of duty from 60 hours to 56 hours, negotiable only at its election. Stated otherwise, Respondent was bound by the Regulation of the parent agency, including the election made thereby to negotiate any change in the authorized tour of duty for firemen.

There is no dispute that the Union sought to negotiate concerning the decision to change the existing 60-hour workweek not that Respondent refused to negotiate concerning its decision to change the workweek to 56 hours, asserting that such decision was "non-negotiable". Having found that the decision was negotiable, because MP-5 made it negotiable, Respondent violated 16(a)(5) and (1) by its refusal to negotiate concerning its decision to change the workweek. Even if the decision to change the established 60-hour workweek to 56 hours had been negotiable only at the election of Respondent, Respondent had a statutory duty to negotiate pursuant to 6(b)(2) and (3) of the Statute since impact on unit employees was foreseeable and, obviously, more than de minimis as it affected, inter alia, their starting time, their earnings, and their leave accrual. Respondent conceded it obligation to negotiate, at least pursuant to 6(b)(2) and (3), and responded to the Union's demand to negotiate the 56-hour workweek of June 11, 1986, by its memorandum of June 16, 1986, in which it stated, "Management will negotiate impact and implementation of the 56-hour workweek for Firefighters."

The parties met on June 20, 1986, at which time, as I have found, the Union made its position clear that it opposed the change of the established 60-hour workweek, but indicated that it did not have a totally closed mind to the 56-hour workweek if there was some way they could compensate for the loss of pay and benefits and made a proposal for disrupted sleep pay. Respondent acknowledged the Union's prior request for information, which had not been furnished, and agreed to obtain the information before the next meeting which the parties, by agreement, set for June 26, 1986, at 1:30 p.m. [ v30 p15 ]

Respondent's bargaining representatives, Messrs. Weldy and Wingerter, as well as Mr. Combs, were present in Mr. Porter's office at the designated time (1:30 p.m.) on June 26, 1986; but, because of the absence of Union President Wilber, no negotiations took place on June 26. Ms. Wilber's conduct was as strange as it was inexcusable. She asserted some problem concerning her release from duty for negotiations, although the report of use of official time (Rec. Exh. 1), which she initialed, gives no support; but if she had had a legitimate problem concerning her release for negotiations, it difficult to believe that she would not have lodged a strong protest with Mr. Wingerter or with Mr. Weldy prior to the meeting, or, at the very least, that she would not have gone by the office of one or the other, prior to going to the Union office which was just across the street, to advise them that she had a problem; but she did not. If there were a conflict with negotiations because of an expected telephone call from an FLRA agent, it is difficult to believe that she would not have advised the FLRA agent that negotiations were scheduled for 1:30; but she did not. If she were not going to attend the negotiation, she could have authorized Mr. Combs to negotiate alone, but she did not. To the contrary, Mr. Combs, after talking to Ms. Wilber, went to the scheduled negotiation meeting, but without any authority to negotiate alone, where he told Messrs. Weldy and Wingerter Ms. Wilber had a problem concerning her release for negotiations. Mr. Wingerter left Mr. Porter's office and called Ms. Wilber's supervisor and then called Ms. Wilber and told her that she had been released from duty for negotiations and that the telephone call from the FLRA agent had been rescheduled for 2:30 and that she could "come on over." Mr. Wingerter then returned to Mr. Porter's office and Mr. Weldy told Mr. Wingerter that Mr. Combs had left to get his briefcase. Mr. Wingerter and Mr. Weldy waited in Mr. Porter's office until about 2:00 p.m. and, when neither Ms. Wilber nor Mr. Combs had appeared, left and returned to their respective offices.

As of approximately 2:00 p.m. on June 26, 1986, it is clear that the only failure and refusal to meet was that of the Union. Even assuming that Ms. Wilber initially was absent for legitimate reasons, nevertheless, after Mr. Wingerter called her and told her that she had been released for negotiations; that the telephone call from the FLRA agent had been rescheduled; and that she could come on over, she failed and refused to do so, and Mr. Combs, who had earlier been present, albeit without authority to negotiate alone, having left for the ostensible purpose of getting his briefcase from the Union office, had not returned. [ v30 p16 ]

Sometime after 2:30 p.m.; Mr. Combs went to Mr. Wingerter's office. 12 If Mr. Wingerter's testimony were fully credited, nothing was said at this "meeting"; and if Mr. Combs' testimony were fully credited, he sought to bargain with Mr. Wingerter alone, as well as requesting that another negotiating meeting be set. For reasons set forth above, I do not credit Mr. Combs' testimony that he sought to negotiate with Mr. Wingerter; but I do credit his testimony that he asked that another negotiating meeting be set; that Mr. Wingerter did not respond to his request that another negotiating meeting be set; but that Mr. Wingerter did state that the decision to adopt the 56-hour workweek was non-negotiable, to which Mr. Combs made no response.

On July 27, 1986, Mr. Weldy posted on the Fire Department bulletin board a memorandum (G.C. Exh 9) which stated, "As everyone should know, there is an intent to implement the 56-hour workweek beginning July 6, 1986. As previously indicated . . . this action is implemented by the posting of a new work schedule that can be seen on your bulletin board." Attached were: (a) notice that: Effective July 6, 1986, the attached Schedule will go into effect; all shifts will start at 8 AM and end at 8 AM; assignment to shifts A, B and C; and (b) the schedule for July, beginning with July 6. It is certainly true that Respondent stated that intended implementation of the 56-hour workweek was implemented by the posting of the new work schedule, which was attached. Prior to posting General Counsel Exhibit 9, Mr. Weldy had written a memorandum to Ms. Wilber (G.C. Exh. 11), which Mr. Weldy testified he hand carried and inserted in the letter slot in the door of the Union office, (Tr. 214) although Ms. Wilber testified she did not receive until July 1, 1986. 13 This memorandum to Ms. Wilber stated, in part, ". . . this is to [ v30 p17 ] inform you of the intended implementation of the Firefighter 56-hour workweek beginning July 6, 1986. . . ." Bearing in mind Respondent's notice of June 7, 1986, both the memorandum to Ms. Wilber and the memorandum, with attachments, which Mr. Weldy posted, reflected an intent to implement in the future, not as General Counsel asserts, implementation on June 27, 1986, as a fait accompli; but the effect may be the same as Respondent with full knowledge that negotiations had not been completed, that the Union was "objecting to the implementation" (Tr. 205), that "the question of pay was still up in the air" (Tr. 203), and notwithstanding the Union's request on June 26, 1986, albeit after the Union's inexcusable failure to meet at the scheduled time for negotiations, for a further negotiating session, Respondent failed and refused to schedule another meeting 14 and the 56-hour workweek was, in fact, implemented on July 6, 1986.

Two wrongs to not make a right. Beyond doubt, Ms. Wilber was wrong in failing and refusing to appear for negotiations on June 26 after Mr. Wingerter called her and told her to "come on over". Nevertheless, the Union did not abandon its right to negotiate, nor did Respondent at any time assert that it had or that because of Ms. Wilber's failure to attend negotiations Respondent was relieved of its obligation to negotiate. Cf. Social Security Administration, 18 FLRA No. 69, 18 FLRA 511 (1985); American Federation of Government Employees, Local 2578, AFL - CIO and National Archives and Records Service, A/SLMR No. 965, 8 A/SLMR 61 (1978). That the Union had not abandoned its right to negotiate was plainly demonstrated by Mr. Combs' meeting with Mr. Wingerter, sometime after 2:30 p.m. on June 26, when he requested that another negotiating session be scheduled. While Mr. Wingerter told Mr. Combs he couldn't imagine why Ms. Wilber had not been there (Tr. 172), he certainly did not tell Mr. Combs that because Ms. Wilber had not been present Respondent was relieved of its obligation to negotiate. To the contrary, Mr. Wingerter testified that Respondent's posted memorandum of June 27, 1986 (G.C. Exh. 9) meant,

". . . only an intent to implement the 56-hour workweek beginning July the 6th. So if they're [ v30 p18 ] only intending to implement it, then it certainly gives them, the union, and opportunity then to question it or negotiate the impact or at least address it again." (Tr. 174-175).

Respondent was wrong in failing and refusing to schedule a further negotiating session which Mr. Combs requested in his meeting with Mr. Wingerter on June 26, The Union's failure to bargain on June 26 was a temporary aberration, which Respondent never asserted constituted an abandonment of its right to negotiate, after which the Union made a request that another bargaining session be scheduled; but Respondent by its failure and refusal to schedule a further negotiating session violated its statutory obligation to consult or negotiate. Respondent conceded that even after the posting of Mr. Weldy's memorandum of June 27, 1986, the Union was entitled to request negotiations on the impact of Respondent's intended implementation of the 56-hour workweek (Tr. 174-175). As the Union had requested further bargaining on June 26, Respondent's failure and refusal to schedule negotiations constituted a refusal to bargain in violation of 16(a)(5) and (1) of the Statute. Moreover, Respondent had refused to negotiate concerning its decision to change the established 60-hour workweek to 56 hours, asserting that the 56-hour workweek was non-negotiable, whereas, for reasons set forth hereinabove, such decision was negotiable. Accordingly, by it failure and refusal to negotiate concerning its decision to change the established workweek, and by its implementation of the 56-hour workweek without fulfilling its statutory obligation to bargain, Respondent violated 16(a)(5) and (1) of the Statute.

REMEDY

I have found that the decision to change the established 60-hour workweek to 56 hours was a negotiable condition of employment and, therefore, Respondent was obligated to bargain concerning the decision to change the established workweek prior to making the change. As the Authority has determined that were management has made a unilateral change regarding a negotiable term and condition of employment, ". . . effectuation of the purposes and policies of the Statute required 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 No. 37, 23 FLRA 278, [ v30 p19 ] 281 (1986), I fully agree with General Counsel (General Counsel's Brief, p. 22), that a status quo ante remedy must be issued in this case in order to effectuate the purposes and policies of the Statute. Although, for reasons set forth hereinafter, I conclude that immediate backpay as requested by General Counsel should not be granted, in part because of the failure and refusal of Union President Wilber to negotiate on June 26, such action by President Wilber does not constitute "special circumstances" warranting a denial of status quo ante remedy inasmuch as Respondent, by its memorandum of June 16, 1986, in agreeing to negotiate only impact and implementation, had effectively refused to bargain concerning its decision to change the established workweek prior to the commencement of negotiation.

Even if, contrary to my determination that the decision to change the established workweek was negotiable, Respondent were obligated only to bargain concerning the impact and implementation of its decision to implement the 56-hour workweek, I fully agree with General Counsel (General Counsel's Brief, p. 23) that a status quo ante remedy is necessary to effectuate the purposes and policy of the Statute in this case and that the factors set forth by the Authority to be considered in determining whether a status quo ante remedy would be appropriate in a case involving a violation of the duty to bargain over impact and implementation, Federal Correctional Institution, 8 FLRA No. 111, 8 FLRA 604,606 (1982), support an order directing Respondent to restore the status quo ante. Respondent, with full knowledge that negotiations had not been completed, with full knowledge that information requested by the Union had not been furnished, and with full knowledge that Mr. Combs requested further negotiations on June 26, failed and refused to schedule further negotiations of its intended implementation of the 56-hour workweek on July 6, 1986. The nature and extent of the impact on firefighters was substantial as it affected their pay and their leave accrual, and there is no evidence to show that restoration of the status quo ante would disrupt or impair the efficiency and effectiveness of Respondent's operations. Indeed, as evidenced by the change from the 60-hour workweek, the only "disruption" experienced by Respondent, would the issuance of a new schedule, and in view of its long experience in scheduling for a 60-hour workweek this, obviously, would be inconsequential.

General Counsel also requests a backpay order (General Counsel's Brief, pp. 23-24). I conclude that immediate backpay should not be awarded but that backpay should be deferred and conditioned on the outcome of bargaining in [ v30 p20 ] accordance with the Authority's decision in Federal Aviation Administration, Washington, D.C., 27 FLRA No. 36 (May 29, 1987). There, the Authority stated, in part, as follows:

". . . in order for a backpay order to be authorized under the Back Pay Act (5 U.S.C. 5596), there must be a determination that an employee has been adversely affected by an unjustified or unwarranted personnel action and a determination that 'but for' the improper action, the employee would not have suffered a withdrawal or reduction in pay, allowances, or differentials."

"In refusal-to-bargain cases, the unjustified personnel action is not merely the agency's refusal to bargain. The unjustified action within the meaning of the Back Pay Act is the agency's action of changing the conditions of employment of unit employees without providing the exclusive representative with an opportunity to bargain as required by the Statute.

"When it has been determined (1) that an employee was affected by an agency's unjustified personnel action, and (2) that the agency action resulted in a withdrawal or reduction of the employee's pay, allowances, or differentials, the final determination necessary for an award of backpay is that but for the unjustified personnel action, the employee otherwise would not have suffered the withdrawal or reduction. In some unfair labor practice cases, this casual relationship is clearly established. In these cases, we will continue to specifically order backpay as corrective action for the unfair labor practice involved to make the employee whole. See San Antonio Area Office, 24 FLRA No. 84.

"As noted by the court in PASS, in refusal-to-bargain cases it is difficult to establish that the bargaining which should have occurred would have prevented any of the [ v30 p21 ] loss in pay, allowances, or differentials. In such a case it cannot be established with certainty that the withdrawal or reduction would not have occurred 'but for' the refusal to bargain. However, denial of a backpay remedy on this basis would imply that the bargaining could not have prevented or lessened the monetary loss of the affected employees. This implication conflicts with the expectation of Congress that bargaining as required by the Statute would affect the manner in which such agency actions are implemented . . .

"When an agency has been shown to have violated the Statute by refusing to bargain, the Authority orders the agency to bargain consistent with its obligation under the Statute. For example, FAA, Washington, D.C., 20 FLRA 273. When the ordered bargaining is completed . . . the effect of the bargaining on the withdrawal or reduction . . . will be known. Accordingly, where an agency has violated the Statute by refusing to bargain regarding a change in a condition of employment and the change resulted in a withdrawal or reduction in the pay, allowances, or differentials of affected unit employees, an order directing bargaining and the payment of backpay consistent with the outcome of the bargaining is an appropriate remedy for the agency's violation. . . ." (id, slip op. at 4-5).

See, also, United States Department of Transportation, Federal Aviation Administration, Washington, D.C.; Federal Aviation Administration, Eastern Region, Jamaica, New York; and Federal Aviation Administration, Airways Facilities Sector 810, Albany, New York, 27 FLRA No. 41 (May 29, 1987).

As set forth above, a status quo ante order is necessary in this case in order not to render meaningless the mutual obligation to negotiate concerning both changes in conditions of employment and the impact and implementation of changes in conditions of employment. Although an immediate backpay order would be warranted in some instances, see, for example, Veterans Administration, Washington, D.C. and Veterans Administration Medical and Regional Office Center, Fargo, North Dakota, 22 FLRA No. 69, 22 FLRA 612, 615-616 (1986), I conclude that it is not in this case for the following reasons: [ v30 p22 ]

1. The record shows that, although the Union opposed the change of the established workweek, the Union was willing to agree to the 56-hour workweek, "if there was some way we could compensate in the loss of pay and benefits" and, to this end had proposed disrupted sleep pay.

2. The record further showed the imminent prospect of the Fire Department being contracted out, which was a strong inducement to make the operation of the Fire Department cost effective and might have affected the Union's position as to whether the 60-hour workweek should be retained.

3. The Union President failed and refused to attend negotiations on July 26, 1986.

As the parties may well have agreed to the 56-hour workweek, and, but for the Union's unjustified conduct, bargaining would have proceeded on July 26, 1986. Accordingly, it can not be established with certainty that the implementation of the 56-hour workweek, with the attendant loss in pay and leave, would not have occurred "but for" the subsequent refusal of Respondent to schedule further negotiations. Therefore, as the Authority stated in Federal Aviation Administration, supra, ". . . an order directing bargaining and the payment of backpay consistent with the outcome of the bargaining" (slip op. at 5) will provide the appropriate remedy for Respondent's violation.

Having found that Respondent 15 violated 16(a)(5) and (1) of the Statute, it is recommended that the Authority adopt the following: [ v30 p23 ]

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations, 5 C.F.R. 2423.29, and 18 of the Statute, [ v30 p24 ] 5 U.S.C. 7118, the Authority hereby orders that the Veterans Administration Medical Center, Leavenworth, Kansas, shall:

1. Cease and desist from:

(a) Instituting any change in the hours of work or in the starting and quitting times of tours of duty of firemen at the Veterans Administration Medical Center, Leavenworth, Kansas, without affording the American Federation of Government Employees, AFL - CIO, the exclusive bargaining representative of its employees, or its authorized representative, American Federation of Government Employees, Local 85 (hereinafter referred to collectively and individually as the "Union") notice of and opportunity to negotiate with respect to any change.

(b) Refusing to bargain, upon request of the Union, concerning changes in conditions of employment.

(c) In any like or related manner interfering with, restraining or coercing [ v30 p25 ] 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) Upon request of the Union, reestablish for Firemen at the Veterans Administration Medical Center, Leavenworth, Kansas, the 60-hour workweek as it existed prior to July 6, 1986, with each tour of duty beginning at 12:00 noon and ending at 12:00 noon, and afford the Union notice of and an opportunity to negotiate with respect to any proposed change.

(b) Bargain in good faith with the Union over any proposed change in the tour of duty for firefighters, or the starting time for any tour of duty, including both substantive bargaining as to the decision to make any change and the impact and implementation of any proposed change.

(c) Provide backpay to any employee who suffered a withdrawal or reduction in pay differentials, allowances or annual leave because of Respondent's unilateral and unlawful implementation of the 56-hour workweek on July 6, 1986, to the extent that bargaining in compliance with the Authority's Order herein eliminated or reduced any withdrawal or reduction in pay differentials, allowances or annual leave, which resulted from Respondent's unilateral implementation of the 56-hour workweek.

(d) Post copies of the attached Notice, on forms to be furnished by the Federal Labor Relations Authority, at the facilities of the Veterans Administration, Leavenworth, Kansas. Upon receipt of such forms, they shall be signed by the Director of the Medical Center and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where [ v30 p26 ] notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(b) Pursuant to 2423.30 of the Authority's Rules and Regulations, 5 C.F.R. 2423.30, notify the Regional Director, Region VII, Federal Labor Relations Authority, 535 - 16th Street, Suite 310, Denver, CO 80202, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. 

WILLIAM B. DEVANEY
Administrative Law Judge

Dated: July 6, 1987
       Washington, D.C.

[ v30 p27 ] 

                       APPENDIX
                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 institute any change in the hours of work or in the starting and quitting times of tours of duty of Firemen at the Veterans Administration Medical Center, Leavenworth, Kansas, without affording the American Federation of Government Employees, AFL - CIO, the exclusive bargaining representative of out employees, or its authorized representative, American Federation of Government Employees, Local 85, (hereinafter referred to collectively and individually as the "Union") notice of and opportunity to negotiate with respect to any change.

WE WILL NOT refuse to bargain, upon request of the Union, concerning any changes in conditions of employment.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

WE WILL, upon request of the Union, reestablish for Firemen at the Veterans Administration Medical Center, Leavenworth, Kansas, the 60-hour workweek as it existed prior to July 6, 1986. With each tour of duty beginning at 12:00 noon and ending at 12:00 noon, and afford the Union notice of and an opportunity to negotiate with respect to any proposed change.

WE WILL bargain in good faith with the Union over any proposed change in the tour of duty for firefighters, or the starting time for any tour of duty, including both substantive bargaining as to the decision to make any change and the impact and implementation of any proposed change. [PAGE]

WE WILL provide backpay to any employee who suffered a withdrawal or reduction in pay differentials, allowances or annual leave because of our unilateral and unlawful implementation of the 56-hour workweek on July 6, 1986, to the extent that bargaining in compliance with Authority's Order herein eliminated or reduced any withdrawal or reduction in pay differentials, allowances or annual leave, which resulted from our unilateral implementation of the 56-hour workweek. 

                             ______________________________
                               (Agency or Activity)

Dated:____________________By:______________________________
                                 (Signature)

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 VII, whose address is: 535-16th Street, Suite 310, Denver, CO 80202, and whose telephone number is: (303) 564-5224. [ v30 p2 ]

FOOTNOTES

Footnote 1 Respondent Leavenworth excepts to certain credibility findings made by the Judge. The demeanor of witnesses is an important factor in resolving issues of credibility, and the Judge has had the benefit of observing the witnesses while they testified. We will not overrule a Judge's determination regarding credibility of witnesses unless a clear preponderance of all the relevant evidence demonstrates that the determination was incorrect. We have examined the record carefully, and find no basis for reversing the Judge's credibility findings. See Department of Housing and Urban Development, Columbia Area Office, Columbia, South Carolina, 22 FLRA 698 (1986).

Footnote 2 For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, e.g., Section 7116(a)(5) will be referred to, simply, as 16(a)(5)".

Footnote 3 The transcript erroneously shows the date of hearing as December 10, 1986. Indeed, the Reporter in preparing the transcript in this case and in Case No. 7-CA-60575, reversed the dates of hearing in each case. Case No. 7-CA-60575. which was actually heard on December 10, 1986, was shown as having been held on December 11, 1986, whereas this case which was heard on December 11, is shown as having been heard on December 10. Accordingly, on my motion the cover sheet, page 1 and page 229 of the transcript are hereby corrected to show the hearing date as December 11, 1986.

Footnote 4 The actual hours worked were not shown and are not material. Three 60-hour shifts result in 180 duty hours per week, whereas, only 168 hours per week are required for full 24-hour coverage, thus resulting in a 12-hour overlap each week when two crews are on duty even though the services of only one crew is required. Whether the 60-hour workweek per crew is achieved by each crew working two 24-hour shifts and one 12-hour shift each week (G.C. Exh. 3, p. 3), or whether the 60-hour workweek is otherwise achieved during a work-cycle, the overlap is unavoidable because of the 12-hour excess of duty time per week. Presumably, since Respondent Regulations provide for either a 60 or a 56-hour workweek, there is some justification for a 60-hour workweek; however no justification was shown.

Footnote 5 By letter dated June 16, 1986, Union President Wilber requested a copy of the notification, ". . . that A-76 is on indefinite hold." (G.C. Exh. 13). Respondent supplied the teletype of April 9, 1986, on June 18, 1986, but also advised the Union that a further teletype, dated June 13, 1986, had been received, which it supplied on June 18, 1986, which withdrew the indefinite hold notification of April 9, 1986 (G.C. Exh 14).

Footnote 6 A 56-hour workweek can be achieved various ways. One way is to schedule straight 24-hour shifts every third day. In each three week cycle, each of the three shifts will average 56 hours per week, working 48, 48 and 72 hours. This was the schedule announced in Respondent's notice of June 7 (G.C. Exh. 2), is the schedule suggested in the VA Regulation (G.C. Exh. 3, p. 3), and is the schedule Mr. Combs testified he now works (Tr. 23); however, it is not the schedule Mr. Weldy set forth on General Counsel Exhibit 7 (see, also, G.C. Exh. 12, "Attachment #1, p. 3), which would have utilized shifts of 24 hours, 8 hours and 16 hours for workweeks of 56-64-46, which, also, in a three week cycle averages 56 hours for each crew (G.C. Exh. 7)

Footnote 7 I fully credit Mr. Weldy's testimony that he called Fiscal Service and was told that the Union had already received the requested information (Tr. 204); but I do not credit Mr. Weldy's statement, or inference, "And I said we had another -- we had another meeting scheduled. . . ." (Tr. 204), either that he called Fiscal Service prior to July 1, 1986, or that the Union had received the data prior to July 1, 1986, for the reason that Respondent's transmittal memorandum to Union President Wilber was dated July 1, 1986 (G.C. Exh. 12, p. 2) (Mr. Wilber indicated she received the data on July 9, 1986 (G.C. Exh. 12, p. 1).

Footnote 8 Indeed, if, as Ms. Wilber's testimony seems to imply, she declined to negotiate after Mr. Wingerter called her and told her to "come on over" because negotiations had been "scheduled" for 1:30 to 2:30 and too much time had been lost to make negotiations worthwhile, it would have been wholly illogical that Mr. Combs would have suggest negotiations after 2:30. Moreover, the testimony of Mr. Combs and Ms. Wilber concerning Combs' authorization to negotiate "one-on-one" with Mr. Wingerter is not convincing and appears wholly contrived as, when Mr. Combs left Mr. Porter's office, Mr. Weldy was present and Mr. Wingerter had left only to find out why Ms. Wilber was not present.

Footnote 9 As indicated above, I conclude that Mr. Combs went to Mr. Wingerter's office, sometime after 2:30 p.m. on June 26, solely to request another negotiating session. I found Mr. Combs' testimony, as well as that of Ms. Wilber, otherwise wholly unconvincing. On the other hand, Mr. Wingerter's ability to accurately recall the sequence of events (see, Tr. 169, 170, 172) was also demonstrated and while, logically, the statement would have been expected on June 20 as a corollary to Respondent's memorandum of June 16, 1986 (G.C. Exh. 5), the testimony of no witness, except Mr. Wingerter, places it on June 20. In any event, I attach little significance to the statement as it was a restatement of Respondent's written statement of June 16, albeit that it was cast in more conclusionary terms, and whenever made elicited no response from the Union.

Footnote 10 Mr. Weldy went on vacation June 28, 1986, and did not return to work until July 7, 1986 (Tr. 221, 222).

Footnote 11 The asserted date of receipt is suspicious; but, while I am aware of Mr. Weldy's testimony, n. 6, supra, Respondent did not present any evidence or testimony to show delivery of the same information to Mr. Combs (Mr. Combs was not asked and testified only to receipt of G.C. Exh. 12 on July 9); and did not present any evidence or testimony as to when the memorandum was actually sent to Ms. Wilber, i.e., did not address the meaning or effect vis-a-vis delivery to Ms. Wilber, of the notations: "Thru: Chief, Personnel Services (05)" and "Thru: Associate Medical Center Director (001)" which, in the absence of testimony or evidence to the contrary, I infer meant that the memorandum, with attachments, had to clear through the two offices indicated before release for delivery to Mr. Wilber. Accordingly, I find, as Mr. Combs and Ms. Wilber testified, that the memorandum, and attachments, were received on July 9, 1986.

Footnote 12 The credibility of Wingerter, Combs and Wilber concerning the events of June 26 was seriously compromised by their desire to bolster their respective positions: Mr. Wingerter to show not only that the Union refused to meet on June 26, as to which there is no possible doubt, but that the Union did not thereafter request a further meeting; and Mr. Combs and Ms. Wilber to obscure the Union's obvious failure and refusal to meet on June 26.

Footnote 13 Notwithstanding Ms. Wilber's notation showing receipt on July 1, 1986, I credit Mr. Weldy's testimony that he placed the memorandum in the letter slot of the door to the Union's office on June 27.

Footnote 14 Because the purported letter of June 30, 1986, was both misaddressed and mishandled and because both Mr. Weldy and Mr. Wingerter denied that it was ever received, I give no probative weight whatever to General Counsel Exhibit 10.

Footnote 15 Presumably, Veterans Administration, Washington, D.C., is a named party because that is the level of recognition. There is no evidence or testimony that Veterans Administration, Washington, D.C., in any manner took any action in violation of 16(a)(5) or (1) of the Statute. Indeed, it is conceded that, pursuant to Article 4, Section 5 of the Veterans Administration, Washington D.C. and AFGE Master Agreement, the change of tour of duty was subject to negotiation at the local level. While it is plain that in bargaining at the local level, Local 85 acted as the agent of AFGE and Respondent Medical Center acted as the agent of Veterans Administration, Washington, D.C., where the refusal to bargain is attributable solely to the acts and conduct of agency management at the local level, but the level of recognition remains at the higher level, is it either necessary or proper to find a violation at the level of recognition? Where the unit of recognition is at the lower level, the actual violation occurs at the level of recognition, but pursuant to direction from a higher level, the Authority has held that it would not effectuate the purpose and policies of the Statute to "find an additional cumulative violation" against the lower level since it had no discretion. Department of the Interior, Washington, D.C., et al., 25 FLRA No. 6, 25 FLRA 91, 96-96 (1987). In Department of Health and Human Services, Social Security Administration, Region VI and Department of Health and Human Services, Social Security Administration, Galveston, Texas District, 10 FLRA No. 9, 10 FLRA 26 (1982), the Authority stated, in part, as follows: "The Authority agrees that, under the Statute, when the obligation to negotiate is breached by the acts and conduct of agency management, such a breach may provide the basis for a section 7116(a)(1) and (5) violation regardless of the location of that agency management in the agency chain of command." (10 FLRA at 28). Accordingly, while an order could properly run to the agency at the national level both because that is the level of recognition and because Respondent Medical Center acted as agent for Veterans Administration, Washington, D.C. in conducting local negotiations, an order against Veterans Administration, Washington, D.C. is not necessary as a breach of the obligation to negotiate may provide the basis for a 16(a)(1) and (5) violation regardless of the location of that agency management in the agency chain of command, and further that it would not effectuate the purpose and policies of the Statute to find an additional cumulative violation against Veterans Administration, Washington, D.C., Department of the Interior, supra, inasmuch as the obligation to bargain was delegated to local management which was acting as agent and as such, its actions and the order herein binds Veterans Administration, Washington, D.C., Department of Health and Human Services, Social Security Administration, Office of Program Operation and Field Operation, Sutter District Office, San Francisco, California, 5 FLRA No. 63, 5 FLRA 504 (1981). Therefore, the allegations of the complaint against Veterans Administration, Washington, D.C. are hereby dismissed.