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37 FLRA No. 43

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR FORCE

GRIFFISS AIR FORCE BASE

ROME, NEW YORK

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2612, AFL-CIO

(Charging Party)

1-CA-70219

DECISION AND ORDER

September 26, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the exceptions and a supporting brief.

The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing a change in a condition of employment without first giving the Union notice and the opportunity to bargain over the impact and implementation of the change. The Judge found that the Respondent changed bargaining unit employees' conditions of employment by adopting a policy of referring certain traffic infractions committed on the base to U.S. Magistrate's Court. He concluded that the Respondent violated the Statute when it implemented that policy as to off-duty employees without giving the Union notice and an opportunity to bargain on the impact and implementation of the change. The Judge directed that the policy be rescinded as to the off-duty employees. In addition to ordering this status quo ante remedy, the Judge ordered that off-duty employees affected by the change be made whole for various losses due to the newly implemented policy. He found that no violation occurred in connection with the implementation of the policy as to on-duty employees. No exception was filed to the Judge's finding concerning these employees.

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 and find that no prejudicial error was committed. Those rulings are affirmed.

We adopt the Judge's findings and conclusions as modified in this decision. We agree with the Judge's conclusion that the Respondent violated section 7116(a)(1) and (5) when it implemented the policy without giving the Union notice and the opportunity to bargain over impact and implementation. We adopt the Judge's order only to the extent that it is consistent with our order, which requires that Respondent post a notice, rescind the improperly implemented policy, and, if the Respondent reinstitutes that policy, that it give the Union notice and the opportunity to bargain on impact and implementation, and apply retroactively any agreement reached in such bargaining. We do not adopt the Judge's recommendation that employees affected by the improper implementation be made whole.

II. Background

The facts, more fully set forth in the Judge's Decision, are summarized below. Prior to the events that led to the complaint in this case, major traffic offenses such as driving while intoxicated (DWI) committed by on-duty and off-duty civilian employees at Griffiss Air Force Base were disposed of on the base. Employees who committed such offenses were subject to revocation of their base driving privileges or other administrative sanctions. In early 1987, the Respondent decided to refer major traffic offenses committed on the base by civilian employees to the U.S. Magistrate's Court in Syracuse, New York, approximately 42 miles away, for prosecution by the U.S. Attorney's office.

The Respondent unilaterally implemented the new policy for traffic infractions as to off-duty employees in late February or early March 1987. Thereafter, a unit employee named Millard was charged with DWI at the base while off-duty. The case was prosecuted in the Magistrate's Court and Millard pleaded guilty to a lesser offense. In mid-March 1987, another off-duty unit employee, Roy Waldron, was ticketed for DWI on the base and that case also was sent to the Magistrate's Court. Waldron engaged an attorney to litigate the matter. At the time of the hearing in the present case, the Waldron matter had not yet come to trial before the Magistrate, but Waldron had received an official admonishment from his supervisor regarding the incident.

By letter dated April 3, 1987, the Respondent notified the Union of the new policy regarding both off-duty and on-duty infractions. The text of the letter is reproduced in the ALJ Decision at 3-4. It stated in part:

3. This policy will become effective on 20 April 1987. You have until 15 April 1987 to voice any objections or suggest changes. Please submit your comments to me in writing.

On April 8, the letter came to the attention of Joseph Sallustio, who had been elected Union president the previous day. On April 8, Sallustio called the author of the letter, Staff Judge Advocate Lt. Col. Richard O'Hair, and asked to bargain over the impact of the change on civilian employees. According to the Judge's summary of the conversation, "Sallustio questioned O'Hair's solicitation of 'comments,' noting comments were not proposals. O'Hair indicated having written proposals would facilitate the discussion." ALJ at 5. A meeting was set for April 17.

On April 17, O'Hair and Sallustio met. Also present were Respondent's Labor Relations Officer William DeSantis and Union Chief Steward Bobby Meehan. The meeting concerned only on-duty infractions as management had informed the Union that it considered all matters concerning enforcement of the policy against off-duty employees to be nonnegotiable. During the meeting, management explained its reasons for implementing the magistrate system and the Union representatives indicated their opposition, particularly noting that employees would incur the expenses of hiring an attorney and using annual leave to travel to and appear at the court in Syracuse. On April 20, 1987, Respondent implemented, without change, its proposal regarding on-duty driving offenses.

III. Administrative Law Judge's Decision

The Judge found that the Respondent previously dealt with its employees' on-base traffic offenses solely through on-base administrative sanctions. He found further that, under Authority precedent, the decision to implement a policy of referring such offenses to a U.S. Magistrate's Court, as well as subjecting the employees to agency discipline, (1) was a change in the conditions of employment of the employees; (2) involved the exercise of management rights; and (3) was within the duty to bargain only as to its impact and implementation. ALJ at 8-10. The Judge found that the Respondent fulfilled its obligations to give the Union notice and to bargain about the impact and implementation of the change in policy to refer on-duty violations to the Magistrate's Court for prosecution. However, he concluded that the Respondent had implemented the change regarding off-duty violations prior to giving the Union notice and an opportunity to bargain over the impact and implementation of the change. Therefore, he found that the Respondent violated section 7116(a)(1) and (5) of the Statute by implementing the change regarding off-duty violations without giving the Union notice and the opportunity to bargain over the procedures to be observed in implementing the change and appropriate arrangements for adversely affected employees.

To remedy the violation, the Judge recommended a status quo ante remedy requiring the Respondent to (1) rescind the change as to off-duty offenses committed by unit employees; and (2) make unit employees whole for money spent, including lawyer fees and transportation costs, and to restore annual leave used to prepare and/or defend or be present at U.S. Magistrate's Court due to the change in policy.

IV. Positions of the Parties

The Respondent excepts to the Judge's conclusion that it had a duty to bargain over the impact and implementation of its decision to refer off-duty traffic infractions to the U.S. Magistrate's Court. The Respondent argues that the off-duty actions of employees as involved here do not pertain to conditions of employment.

The Respondent also excepts to the portion of the recommended remedy requiring it to reimburse employees for money expended to prepare or defend cases referred to the Magistrate's Court, including lawyer fees and transportation costs, and to restore annual leave used for those purposes. The Respondent argues that there is no statutory basis to award such fees under either the Equal Access to Justice Act or the Back Pay Act, and that such a remedy is outside of the Authority's discretion to fashion remedies.

The General Counsel filed an opposition to the exceptions, and a supporting brief. It argues that the Judge's Decision should be affirmed. As to the merits, the General Counsel argues that there is a direct connection between the employees' work situation and the impact and implementation of the decision to refer misconduct to the Magistrate's Court. In regard to the remedy, the General Counsel argues that the award of attorney fees is within the Authority's discretion to fashion make-whole remedies and does not involve an application for an award under the Back Pay Act.

V. Analysis

There are no exceptions to the Judge's finding that the Respondent fulfilled its duty to bargain concerning the implementation of the policy as to offenses committed by on-duty employees. We affirm that conclusion.

Next we address the Judge's conclusion that the Respondent violated the Statute by implementing the decision to refer on-base traffic offenses by off-duty employees to the magistrate system without giving the Union notice and the opportunity to bargain over procedures and appropriate arrangements for adversely affected employees. It is not disputed that (1) the Respondent changed its practice by referring to the Magistrate's Court certain offenses that previously would have been handled on the base; and (2) the decision to impose the magistrate system constituted an exercise of management's rights under section 7106(a) of the Statute. ALJ at 7-8. However, to the extent that the exercise of its rights constituted a change in employees' conditions of employment, the Respondent was obligated under section 7106(b)(2) and (3) of the Statute to provide notice to the Union and bargain, upon request, over the impact and implementation of the change. See, for example, Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, and Newark Air Force Station, Newark, Ohio, 21 FLRA 609, 610 (1986).

A. Agency Discipline for Off-duty Infractions Committed on the Base Was a Condition of Employment of Unit Employees

"Conditions of employment" are defined in section 7103(a)(14) of the Statute as "personnel policies, practices, and matters . . . affecting working conditions[.]" The Respondent argues that "[t]he acts which lead to the referral in question occur while off-duty. As such, they are personal to the employee and not connected to the work." Respondent's brief in support of exceptions at 11.

In deciding whether a matter involves a condition of employment of bargaining unit employees, the Authority considers whether: (1) the matter pertains to bargaining unit employees; and (2) the record establishes that there is a "direct connection" between the matter and the "work situation or employment relationship" of bargaining unit employees. Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 237 (1986) (Antilles). There is no dispute in this case that the policy of subjecting employees to Agency processes and administrative sanctions for traffic infractions committed on the base by off-duty employees pertained to bargaining unit employees. Therefore, we will consider only the second factor of the Antilles test--whether there was a "direct connection" between the disputed policy and the "work situation" or "employment relationship" of unit employees.

The Respondent relies on the Authority's decision in United States Army Adjutant General Publication Center, St. Louis, Missouri, 24 FLRA 695 (1986) (Publication Center) to support its contention that the second factor in the Antilles test is not met in the present case. However, during the pendency of this case, in American Federation of Government Employees, Local 2761, AFL-CIO v. FLRA, 866 F.2d 1443 (D.C. Cir. 1989) (AFGE, Local 2761), the United States Court of Appeals for the District of Columbia Circuit reviewed and rejected the Authority's application of the second part of the Antilles test in the Publication Center decision.

The court noted that under Antilles, "the Authority inquires into the extent and nature of the effect of the practice on working conditions." AFGE, Local 2761, 866 F.2d at 1445. In determining whether the matter there in issue was a condition of employment, the court examined whether there was a "link" or "nexus" between that matter and the worker's employment. Id. at 1446-47, 49. The court found that where a matter has a "direct effect on the work relationship," it concerns a condition of employment. Id. at 1449.

The matter at issue in this case is the policy of subjecting employees to possible criminal prosecution, in addition to Agency discipline, for certain off-duty misconduct. The fact that an employment policy involves off-duty employees or relates to an off-duty situation does not necessarily disqualify it from being a condition of employment. See, for example, United States Department of Justice, United States Immigration and Naturalization Service, 14 FLRA 578 (1984) (the assignment of government-owned housing was a condition of employment). Rather, the issue is whether a sufficient nexus can be found between the new policy and the off-duty employees' employment relationship.

In AFGE, Local 2761, the court found that the agency, itself, had created an explicit nexus between an annual picnic and the employment relationship because the picnic was on agency premises, involved an adjustment in hours of work, was paid for by the employer, and was used as an opportunity to present awards. The picnic, therefore, was a condition of employment.

In contrast, when Respondent implemented its new policy of referring off-duty misconduct to Magistrate's Court, the impact of the change, if any, on the employment relationship was unknown. Therefore, under the analysis in AFGE, Local 2761, the nexus between the work relationship and such policy is not as apparent in this case. Nonetheless, we conclude that a sufficient nexus has been established.

First, insofar as the evidence establishes that one of the affected employees "had used numerous hours of annual leave to meet with his lawyer and make court appearances" even before his trial (Judge's Decision at 3 n.4), it is clear that the new policy has had, and will continue to have, a considerable effect on working conditions by requiring employees to use annual leave or leave without pay to adequately defend themselves in the court proceedings. Moreover, it is reasonable to assume that the increased use of leave necessitated by the court proceedings could have a deleterious effect on the ability of affected employees to meet performance standards and to otherwise handle the demands of their jobs.

Further, in the absence of any contrary indication by the Respondent when it implemented the policy regarding its intended use of the results of Magistrate's Court proceedings, we conclude that the potential effect of the new policy on Respondent's disciplinary system is sufficient to create a nexus between that policy and the work relationship and therefore to establish a bargaining obligation. The off-duty employees involved here are subject to the policy of administrative adjudication and sanctions solely because of their employment relationship.

Significantly, until the change of policy, traffic infractions on the base by all employees, both on and off duty, were adjudicated on the base and resulted in work-related sanctions. It is reasonable to assume that Respondent will continue to rely to some extent on the results of an adjudicatory hearing before it imposes sanctions or other discipline on the employees who must now appear in Magistrate's Court. Thus, they will be punished as employees based at least in part on the outcome of the hearing before the Magistrate, regardless of what time of day their traffic violation occurred. The potentiality of such impact is buttressed by the fact that the Respondent's own employees, acting as Special Assistant United States Attorneys, were designated to prosecute the cases before the Magistrate's Court. If management bases its internal discipline in whole or in part on the results of the related Magistrate's Court proceedings, the decision to refer incidents of misconduct to the Magistrate's Court would have a direct effect on the administrative sanctions which continue to be applied.^(*) The Respondent could, for example, decide to link the severity of administrative discipline for a particular offense to the outcome of proceedings regarding that offense in the Magistrate's Court. Proceedings before a magistrate, an uninvolved third party, may have harsher results than those conducted on base where the employee is known. In such circumstances, the resultant administrative penalty would also be harsher than before.

Accordingly, as the Union had no way of knowing that the new policy would not have an effect on the Respondent's disciplinary system, and the Respondent made no effort to ensure that it would not have such an effect, we conclude that the policy of referring traffic infractions by off-duty employees to Magistrate's Court was a condition of employment.

In concluding that the Respondent had an obligation to bargain over the impact and implementation of the change in policy to refer off-duty violations to the Magistrate's Court for prosecution, the Judge found Philadelphia Naval Shipyard, 15 FLRA 26 (1984), to be controlling. There, as in the present case, the agency adopted a policy of referring certain offenses to a Magistrate's Court in addition to subjecting them to possible administrative discipline. In that case, however, the respondent conceded its obligation to bargain upon request over the impact and implementation of the policy, but contended that no request had been made. In the present case, in contrast, the Respondent contends that it has no obligation to bargain because the off-duty actions of employees do not involve conditions of employment. Therefore, although the outcome of Philadelphia Naval Shipyard is consistent with our conclusion here that management has an obligation to bargain over the implementation and the potential impact of such policy, the focus of that decision was different and it does not contain a sufficient analysis of the connection between the employment relationship and the implementation of the policy to refer matters to the Magistrate's Court to be controlling. We find similarly distinguishable the decision in Defense Logistics Agency, Alexandria, Virginia and Defense Construction Supply Center, Columbus, Ohio, 22 FLRA 327 (1986), cited by the Respondent in its exceptions to the Judge's decision. The Authority held that, under the facts of that case, subjecting employees to prosecution by the U.S. Attorney for unlawful acts committed at the Center was not a change in practice. Consequently, the relationship of the practice to a condition of employment was not a question that needed to be answered to decide the case.

B. The Change in Practice Violated the Statute

We have determined that the practice of subjecting employees to Agency discipline for certain traffic infractions committed on the base while off-duty is a condition of employment. Furthermore, there is no dispute that: (1) the decision to use the magistrate system to adjudicate the traffic infractions is a change in that practice; and that (2) the Respondent did not give the Union an opportunity to bargain over the impact and implementation of the practice before instituting the change. Inasmuch as we have found that at the time the Respondent announced its new policy the implementation of the decision to refer cases to the Magistrate's Court had a potential impact on a working condition of bargaining unit employees, the Union should have been given notice and an opportunity to bargain over such impact. Therefore, we conclude that the Respondent's unilateral change in such practice without having given the Union notice and the opportunity to bargain over the impact and implementation of the change was a violation of section 7116(a)(1) and (5) of the Statute.

C. The Judge's Remedy

The Judge concluded that in view of all the circumstances, a status quo ante remedy was warranted. He also required the Respondent to reimburse any unit employee for "any money which the employee expended to prepare and/or defend or be present at Magistrate's Court" as a result of the referral of a case under the Respondent's new policy, "including lawyer's fees and transportation costs, and restore any annual leave such employee might have been required to use in connection with litigation and the preparation thereof before U.S. Magistrate's Court."

Although the Respondent changed employees' conditions of employment by implementing a single policy of referring certain infractions to the Magistrate's Court, the timing and circumstances led the Judge to find no violation in the implementation of the policy as to on-duty employees while finding that the implementation as to off-duty employees violated the Statute. We consider the remedy in this context.

1. The Status Quo Ante Portion of the Remedy

It is necessary to apply the balancing criteria established by the Authority in Federal Correctional Institution, 8 FLRA 604 (1982), to the facts of each case to determine whether a status quo ante remedy is warranted in the case of a refusal or failure to bargain over procedures and appropriate arrangements.

The Judge concluded that considering the circumstances in this case along with the factors set forth in Federal Correctional Institution, a status quo ante remedy is warranted. ALJ at 13. Although the Respondent contended before the Judge that, because it would apply only to a portion of those civilians using the base, a status quo ante remedy would be disruptive of Agency operations, it did not except to the Judge's finding that no hardship would be caused, "especially when balanced against the adverse effects of the program on unit employees." Id. at 13 n.14.

We adopt the Judge's conclusion and will include a status quo ante requirement in our remedial order.

2. The "Make-whole" Portion of the Remedy

The Judge did not set forth any authority or rationale for the "make-whole" part of his order. He directed that off-duty employees affected by the improper implementation be reimbursed for expenses including lawyer's fees and transportation costs as well as the restoration of annual leave. Such a remedy raises complicated questions, including whether it is within the Authority's power to order reimbursement of items such as lawyer fees and travel expenses, which do not qualify under the Back Pay Act. See United States Department of the Treasury, Internal Revenue Service and Internal Revenue Service, Austin District, and Internal Revenue Service, Houston District, 23 FLRA 774, 782 (1986). However, we find it unnecessary to reach such questions here because we conclude, as explained below, that a make-whole remedy is not called for in this case.

After implementation of the changed policy as to off-duty employees, the Charging Party was given notice and had the opportunity to bargain over the impact and implementation of the change in policy as to on-duty employees. There is no exception to the Judge's finding that the Respondent met its obligation to bargain about the effects of its new policy as to the on-duty employees. The Respondent is not, as a result of those negotiations, required to pay lawyer fees or travel expenses for on-duty employees, or to reimburse those employees for annual leave, subjects that were raised during the negotiations. The purpose of a make-whole remedy is to put employees who have been adversely affected in the position where they would have been if the improper action had not occurred. Department of Health and Human Services, Social Security Administration, Dallas Region, Dallas, Texas, 32 FLRA 521, 525 (1988). The Respondent already has negotiated with the Union over the effects of the new policy as to on-duty employees. It would be incongruous to require the Respondent to remedy its unfair labor practices concerning implementation of the policy as to off-duty employees by requiring affirmative action that the Charging Party failed to obtain at the bargaining table for on-duty employees who were subjected to the same policy. Therefore, we will not adopt the make-whole portion of the remedy ordered by the Judge.

However, as noted, the Respondent will be required to rescind the policy as to off-duty employees and provide the Union with notice of any plans to reinstitute the policy. If the Union so requests, it will have the opportunity to negotiate over the impact and implementation of the policy before it is reinstituted. Although for the reasons noted we have not directed a make-whole remedy, we are aware that simply requiring the Respondent to return to prior conditions does not remedy the effects of its unfair labor practices on individual employees. Therefore, we will direct that, to the extent consistent with law, the results of any such negotiations be applied retroactively to off-duty unit employees affected by the Respondent's unfair labor practices.

In the past, the Authority has directed retroactive bargaining orders to remedy refusals to bargain over specific proposals previously held to be within the duty to bargain, or to remedy refusals to implement specific terms of an interest arbitration award to which timely exceptions were not filed. See Environmental Protection Agency, 21 FLRA 786, 790 (1986) and cases summarized therein. Although we may not have ordered such a remedy in past cases involving unlawful unilateral changes, we are clearly not foreclosed from doing so. Rather, section 7105(g)(3) of the Statute grants the Authority discretion to "take any remedial action it considers appropriate to carry out the policies" of the Statute.

Section 7118(a)(7) provides for various specific remedies. In particular, section 7118(a)(7)(D), which allows "any combination" of the listed remedies "or such other action as will carry out the purpose" of the Statute, underscores the intent of Congress to grant the Authority "discretion to choose what it deems the appropriate responses to an unfair labor practice." National Treasury Employees Union v. FLRA, No. 87-1165 (D.C. Cir. Aug. 14, 1990) (en banc), slip op. at 6. Indeed, the U.S. Court of Appeals for the District of Columbia Circuit, recognizing the Authority's broad discretion under the Statute to fashion remedies, stated that it "will uphold the remedial orders of the FLRA "'unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the [Statute].' . . . That is a heavy burden indeed." Id. at 8 (emphasis added by the court) (citations omitted).

Taking into account the total circumstances of this case, we conclude that the unfair labor practices can best be remedied by the imposition of a retroactive bargaining order. As we have stated above, a make-whole order would, in our opinion, provide an anomalous result when viewed in the context of the outcome of bargaining regarding on-duty employees. Nonetheless, we are aware that employees Millard and Waldron and any other similarly situated employees have suffered uncompensated losses as a result of Respondent's unlawfully instituted policy. A mere rescission of the policy and a prospective bargaining order will not adequately address the losses suffered by these employees. Therefore, we have examined the various remedies made available by Congress and we have determined that, in all the circumstances, a retroactive bargaining order will best effectuate the policies and purposes of the Statute. Such an order is designed to remedy the effects of the unfair labor practices on individual employees, a fundamental purpose of the Statute.

VI. Conclusion

The Respondent violated section 7116(a)(1) and (5) of the Statute by implementing its policy of referring certain traffic offenses committed by off-duty employees to the U.S. Magistrate's Court. We shall direct it to cease and desist from its unlawful conduct, and to take certain affirmative action.

VII. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we order that the Department of the Air Force, Griffiss Air Force Base, Rome, New York, shall:

1. Cease and desist from:

(a) Instituting changes in the method of handling major traffic infractions by prosecution in U.S. Magistrate's Court for off-duty offenses without first providing notice and affording American Federation of Government Employees, Local 2612, AFL-CIO, the exclusive collective bargaining representative of a unit of its employees, an opportunity to bargain concerning the procedures to be observed in implementing such changes and appropriate arrangements for employees adversely affected thereby.

(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of the rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action:

(a) Rescind the change in the method of handling major traffic infractions for off-duty offenses for unit employees represented by the American Federation of Government Employees, Local 2612, AFL-CIO, which subjected such employees to prosecution in U.S. Magistrate's Court.

(b) Provide notice of changes to be instituted in handling major traffic infractions by prosecution of off-duty offenses in U.S. Magistrate's Court and upon request of American Federation of Government Employees, Local 2612, AFL-CIO, the exclusive representative of a unit of its employees, bargain concerning the procedures to be observed in implementing such changes and appropriate arrangements for employees adversely affected thereby and apply retroactively the terms of any agreement reached as a result of such negotiations.

(c) Post at Griffiss Air Force Base copies of the attached Notice on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Base Commander and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that these Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region I, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT institute changes in the method of handling major traffic infractions by prosecution in U.S. Magistrate's Court for off-duty offenses without first providing notice and affording American Federation of Government Employees, Local 2612, AFL-CIO, the exclusive collective bargaining representative of a unit of our employees, an opportunity to bargain concerning the procedures to be observed in implementing such changes and appropriate arrangements for employees adversely affected thereby.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by the Statute.

WE WILL rescind the change in the method of handling major traffic infractions for off-duty offenses for unit employees represented by the American Federation of Government Employees, Local 2612, AFL-CIO, which subjected such employees to prosecution in U.S. Magistrate's Court.

WE WILL provide notice of changes to be instituted in handling major traffic infractions by prosecution of off-duty offenses in U.S. Magistrate's Court and upon request of American Federation of Government Employees, Local 2612, AFL-CIO, the exclusive representative of a unit of our employees, bargain concerning the procedures to be observed in implementing such changes and appropriate arrangements for employees adversely affected thereby.

Further, we will apply retroactively the terms of any agreement reached as a result of such negotiations.

_________________________
(Activity)

Dated:____________ By:________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region I, Federal Labor Relations Authority, whose address is: 10 Causeway Street, Room 1017, Boston, Massachusetts 02222-1046, and whose telephone number is: (617) 565-7280.

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

*/ In its exceptions to the Judge's Decision, the Respondent stated that "the employment related consequences for off-duty criminal misconduct remained the same" after the decision to refer cases to the Magistrate's Court. Exceptions at 13. Even if this statement is interpreted to suggest an intention that results of Magistrate's Court proceedings would not be used to influence internal disciplinary proceedings, the Union could not have known of such a policy at the time of the refusal to bargain. Moreover, the mere statement of such a policy would not bind the Respondent as would a negotiated agreement, and therefore the Respondent could use the results for administrative purposes in the future.

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