[ v50 p728 ]
50:0728(90)CA
The decision of the Authority follows:
50 FLRA No. 90
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
GENERAL SERVICES ADMINISTRATION
NATIONAL CAPITAL REGION
FEDERAL PROTECTIVE SERVICE DIVISION
WASHINGTON, DC
(Respondent)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 1733, AFL-CIO
(Charging Party)
WA-CA-30469
_____
DECISION AND ORDER
July 31, 1995
_____
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.(1)
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 General Counsel.(2)
The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by changing a condition of employment without notifying the Union and providing it with an opportunity to bargain over the change prior to implementing it.(3)
Pursuant to section 2423.29 of our Regulations and section 7118 of the Statute, upon consideration of the Judge's decision and the entire record, we hold, for the following reasons, that the Agency committed an unfair labor practice when it unilaterally changed its past practice of permitting police officers to transport their weapons between their homes and duty stations without providing the Union with notice and opportunity to bargain over the change prior to its implementation. Accordingly, we reverse the Judge's dismissal of the complaint and order an appropriate remedy.
II. Judge's Decision
The facts are fully set forth in the Judge's decision and are briefly summarized here.
The Union is the exclusive bargaining representative of the Respondent's uniformed police officers. The officers are assigned to mobile patrol units to protect designated sectors in the Washington Metropolitan Area.(4) Until 1991, before each duty shift, the officers reported for roll call at the Washington Navy Yard, where they picked up their firearms and received their assignments, and then reported to their assigned sectors. At the end of each shift the officers again reported to the Navy Yard, where they returned their firearms. In January 1991, the Agency issued a Temporary Special Order, which authorized the officers to carry their firearms between their homes and duty stations, in order to facilitate the ability of officers to get to their assigned sectors more efficiently and to respond more readily to disorders.(5) Subsequently, the Agency indefinitely extended the authorization by memorandum stating that the extension was "consistent with effective operational practices, by eliminating the need for the time consuming administrative process of firearm issuance and retrieval, and improving our capability to respond to emergency situations under employee recall conditions." Judge's Decision at 5.
The Agency's Associate General Counsel, Real Property Division, thereafter concluded, based on a 1978 memorandum of the General Counsel (Memorandum), and on a 1972 Opinion of the Assistant Attorney General, Office of Legal Counsel, Department of Justice (DOJ Opinion), that no authority exists permitting the officers to carry their firearms in a non-duty status between their duty station and their residence, except in exceptional duty-related circumstances such as those outlined in the DOJ Opinion. The Agency's Office of Physical Security and Law Enforcement accordingly instructed the Division Directors to immediately ensure complete compliance with the legal opinion. Without any notice to the Union, the Director of the Federal Protective Service (FPS) Division then issued an order for immediate discontinuance of the practice by all Agency police officers.(6)
The Judge held that the Agency in "good faith, reasonably concluded, based upon the available resources, that the practice of permitting police officers to carry their weapons home when off duty was illegal." Judge's Decision at 12. The Judge concluded that "[w]hile it has not been conclusively established that it would be illegal" for the officers to continue transporting their weapons between their duty stations and residences, "the record upon which [the Agency] relied in making its decision to terminate the practice strongly suggests the illegality of the practice." Id. at 11-12. The Judge relied on two "litigated D.C. court cases" which "give reasonable indication of the possible illegality of such conduct" and on the DOJ Opinion and Agency General Counsel's Memorandum. Id. at 12. The Judge determined that because the disputed practice probably was illegal, the Agency was not obligated to negotiate with the Union prior to terminating the practice.(7) In addition, the Judge held that a status quo ante remedy was not appropriate.(8)
III. General Counsel's Exceptions
The General Counsel argues that the Judge erred in concluding that the Agency's past practice was illegal, and, therefore, that the Agency was not obligated to negotiate with the Union prior to terminating the practice. The General Counsel contends that, in order to find that the Agency was privileged to unilaterally terminate its past practice, the Judge was required to make a specific finding that the practice was illegal, and failed to do so.
IV. Analysis and Conclusions
When an agency changes a condition of employment of bargaining unit employees, it is obligated to notify and negotiate with the collective bargaining representative prior to effectuating the change.(9) Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 49 FLRA 1522, 1527 (1994). There is no obligation to bargain over a decision to change a past practice which is unlawful. Id. at 1527-28.
The Judge, however, did not conclude that the Agency's practice of permitting the police officers to carry their weapons between their residences and duty stations was illegal. Instead, the Judge concluded that the Agency had made a reasonable determination, in good faith, that the practice probably was illegal. See Judge's Decision at 12. However, whether an agency acts in good faith is irrelevant in determining whether a change is unlawful. Marine Corps Logistics Base, Barstow, California, 33 FLRA 196, 202 (1988). It is well established that when an agency changes conditions of employment and refuses to bargain with the union concerning those changes, the agency acts at its peril. U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Hartford District Office, Hartford, Connecticut and American Federation of Government Employees, AFL-CIO, Local 1164, 41 FLRA 1309, 1317 (1991). Thus, the Judge erred in determining that the Agency's showing of possible illegality of the Agency's practice was sufficient to conclude that the Agency did not violate the Statute by unilaterally changing its practice.
In addition, the record does not establish that the Agency's practice was illegal. First, the two cases the Judge relied on -- Middleton v. United States, 305 A.2d 259 (D.C. 1973)(Middleton) and McKenzie v. United States, 158 A.2d 912 (D.C. 1960)(McKenzie) -- are entirely distinguishable from the Agency's practice at issue in this case.
In Middleton, the District of Columbia Court of Appeals held that a FPS officer was not a "policeman" or "other duly appointed law enforcement officer" within the meaning of the exemption from the District of Columbia's ban on carrying concealed weapons, D.C. Code Ann. §§ 22-3204, 3205.(10) The court also held that "Defendant's trip to Baltimore on the night of his arrest was a personal one totally unrelated to his duties as a [FPS] officer, and as such placed him outside the exemption provided for on duty law enforcement officers as contained in D.C. Code § 22-3205." 305 A.2d at 262. Moreover, the court noted, the defendant did not transport his weapon unloaded and securely wrapped, as required by the statute for persons not otherwise exempt from the ban on carrying concealed weapons. Id. For all these reasons, the court concluded that the defendant did not fall within an exemption from the prohibition on carrying concealed weapons.
Middleton is clearly distinguishable. Under the Agency's practice in this case, unlike Middleton, the officers were authorized to carry their weapons directly between their duty stations and their residences, and were required to unload and secure their weapons before transporting them to or from their duty stations.(11) Also unlike Middleton, the matter of whether the unit employees in this case are permitted to carry weapons between residences and duty stations concerns a condition of their employment and, under the Agency's practice, is not merely a "personal" matter "totally unrelated to [their] duties . . . ." Middleton, 305 A.2d at 262. See n.9, supra.
In McKenzie, the District of Columbia Court of Appeals sustained the conviction of a "special policeman"(12) for carrying a weapon without a license. The court determined that, as a special policeman, the defendant was neither a "policeman" nor "law enforcement officer," within the meaning of section 3205 of the D.C. Code, so as to be exempt from the prohibition on carrying a concealed weapon. The court also concluded that the defendant failed to satisfy the special requirements for exemption from the ban applicable to special policemen.
Like Middleton, McKenzie is distinguishable from this case. In particular, there is no contention, or other basis on which to conclude, that the unit employees in this case are special policemen, to whom the exemption in section 3205 of the D.C. Code for "policemen or other duly appointed law-enforcement officers" would not apply. Moreover, the exemption for policemen and law enforcement officers is not the only exemption from the ban on carrying concealed weapons available; the unit employees may also qualify for an exemption as "officers or employees of the United States duly authorized to carry a concealed pistol in the usual or ordinary course of . . . business[.]"
Second, the cases the Judge relied on to find a "reasonable indication of the possible illegality" of the police officers' carriage of the weapons between their homes and duty stations concern only the District of Columbia weapons statute. Judge's Decision at 12. The Judge did not consider whether the officers' carriage of the weapons violated the relevant state weapons statutes in Maryland and Virginia, where, in addition to the District of Columbia, the officers presumably could reside. The Maryland handgun statute, which makes it unlawful to wear, carry or transport a handgun, excepts from coverage "the wearing, carrying, [and] transporting of a handgun by . . . law enforcement personnel of the United States." Md. Ann. Code of 1957 Art. 27, § 36B(C). The Virginia statute permits any person at least 21 years of age to apply for and obtain a permit to carry a concealed handgun. Va. Code Ann. § 18.2-308 D (1995). As with the D.C. statute, nothing in these statutes supports the conclusion that permitting the officers to carry their weapons between their residences and duty stations is illegal.
Third, we find unpersuasive the DOJ Opinion and Agency General Counsel Memorandum. Both memoranda relied on the same case law distinguished above. In addition, the DOJ Opinion relied on the nature of the officers' duties at the time the Opinion was written, noting that the officers had "relatively narrow and specific duties -- to guard, enforce regulations, and keep the peace in and around federal buildings," and that the officers thus would have no enforcement authority while off-duty. The Opinion noted that there might be circumstances where an officer might have a "special duty-related reason" for carrying his weapon while off-duty:
For example, if some officers are assigned to different and widely separated buildings on different days, the only feasible procedure might be for them to take their weapons home with them overnight. The same might be true during a riot situation when they might be subject to special call to places not ascertainable in advance.
Judge's Decision at 8.
Since the time of issuance of the DOJ Opinion, the nature of the officers' job duties has changed significantly. The position description for the officers was changed from "Federal Protective Service Officer" to "Police Officer," and the job was changed from one involving assignment to fixed posts to one involving assignment to mobile patrol units to protect designated sectors in the Washington Metropolitan Area. See Id. at 2. Moreover, the job duties of the officers were greatly expanded. The officers no longer merely guard and enforce regulations around federal buildings. The officers investigate criminal activity, and perform a variety of functions, including locating lost children, assisting tourists and breaking up fights in federal office buildings. G.C. Exh. 11 at 2. Thus, consistent with the hypothetical circumstances envisioned in the DOJ Opinion, the nature of the officers' job duties might well constitute a duty-related reason, under the reasoning of that Opinion, for permitting the officers to carry their weapons between their residences and duty stations. In addition, the officers are now subject to immediate recall due to an extreme shortage of officers, and may be recalled immediately in response to changes in threat levels. Id. Thus, under the Opinion, the officers may be "subject to special call to places not ascertainable in advance," and this might constitute another "special duty-related reason" which, according to the Opinion, might justify permitting the officers to carry their weapons between their homes and duty stations. Id.
Based on the foregoing, we conclude that the Judge erred by relying on the Agency's good faith and by failing to make a determination of the illegality of the Agency's practice. Moreover, while acknowledging the Respondent's apparent good faith reliance on, among other things, a 1972 DOJ Opinion, we are compelled to conclude that the record before us does not establish the illegality of the practice. Accordingly, the Respondent violated section 7116(a)(1) and (5) of the Statute by changing its past practice of permitting the officers to carry their weapons between their homes and duty stations without notifying and bargaining with the Union.
Where management changes a condition of employment without fulfilling its obligation to bargain over the change, the Authority grants a status quo ante remedy in the absence of special circumstances. Federal Deposit Insurance Corporation, 41 FLRA 272, 279 (1991). No special circumstances are alleged in this case and none are apparent to us. Accordingly, we find that a return to the status quo ante is appropriate to remedy the Agency's unfair labor practice.
V. Order
Pursuant to section 2423.29 of the Authority's and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the General Services Administration, shall:
1. Cease and desist from:
(a) Unilaterally changing the prior policy permitting federal police officers to carry their weapons between their homes and duty stations, without affording the Union prior notice of and the opportunity to bargain over the change in this practice.
(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured them by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Direct the Agency's Director of the Federal Protective Service Division to rescind its order for immediate discontinuance of the policy of permitting the police officers to transport their weapons between their homes and duty stations.
(b) Post at its facilities in Washington, D.C., where bargaining unit employees represented by the Union are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Administrator of the General Services Administration, 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 ensure that such notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Regulations, notify the Regional Director, Washington Regional Office, 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 EMPLOYEES THAT:
WE WILL rescind our order for immediate discontinuance of the policy of permitting police officers to transport their weapons between their homes and duty stations.
WE WILL NOT prohibit police officers from carrying their .38 caliber revolvers while off duty when traveling to and from their place of residence and official duty station, so long as the officers comply with the required procedures.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.
_______________________________
(Agency)
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, Federal Labor Relations Authority, Washington Regional Office, whose address is: 1255 22nd Street, NW., Suite 400, Washington, D.C. 20037-1206 and whose telephone number is: (202) 653-8500.
Member Armendariz, dissenting:
I respectfully disagree with the conclusion of my colleagues that the Respondent's prior practice of allowing employees to carry their guns to and from work was legal. Consequently, I dissent from their finding that the Respondent violated the Statute by failing or refusing to bargain over a substantively negotiable condition of employment when it unilaterally implemented a change in that prior practice without bargaining.
The majority concludes, contrary to the Judge, that the Respondent's previous practice of allowing Federal Protective Service officers to transport their weapons between home and work was legal. The majority bases that conclusion, in part, on a determination that the cases relied on by the Judge, and cited by the Respondent, do not support a finding that the practice was illegal. Specifically, the majority distinguishes McKenzie v. United States, 158 A.2d 912 (D.C. 1960) (McKenzie) and Middleton v. United States, 305 A.2d 259 (D.C. 1973) (Middleton), relied on by the Respondent in defense of its unilateral change, on the ground that those cases do not involve officers who were transporting their weapons between home and work. I agree that McKenzie can be distinguished from this case on the grounds that Federal Protective Service officers are not "special policemen." Contrary to the majority, however, I believe that Middleton supports the Respondent's position, as affirmed by the Judge, that the Respondent's previous practice was illegal.
The crux of the majority's analysis is that the officer involved in Middleton was subject to the prohibition in section 22-3204 of the District of Columbia Code (Code or D.C. Code) against carrying concealed weapons or, more precisely, did not fall within the exception for "duly appointed law-enforcement officers" in section 22-3205 of the Code, because he was carrying his weapon while traveling within the District of Columbia, but not between home and work. I agree that this is true, but I do not believe that that is the significant fact in the decision.
I believe that Middleton supports the conclusion that Federal Protective Service officers carrying their weapons between home and work would not fall into the exception for "duly appointed law-enforcement officers" in section 22-3205. In Middleton, a case involving a Federal Protective Service officer, the court specifically states that "research of the District of Columbia and United States statutes and regulations fails to disclose any authorization for Federal Protective Service officers to carry firearms other than while on duty or while in a travel status to and from duty assignments, wherever those duty assignments may be located." Id. at 262. I do not interpret the court's reference to travel to and from duty assignments as applying to travel in a nonduty status before and after a tour of duty between the duty site and the employee's residence. In particular, I note that the court makes no reference at all to travel to and from officers' residences. Rather, I find that the court was referring to travel by officers while they are in a duty status between duty sites, an interpretation that is confirmed by the court's reliance on a legal opinion submitted to the Respondent's Administrator by legal counsel stating that the Administrator did not have authority to permit the carrying of weapons by Federal Protective Service officers in a nonduty status. In my view, the court's reference to travel to and from duty site is simply a clarification of the limited circumstances under which Federal Protective Service officers can travel with their weapons.
Consequently, unlike the majority, I do not interpret Middleton as holding that the Federal Protective Service officer in that case was outside the exception in section 22-3205 for "duly appointed law-enforcement officers" because he was carrying a weapon while returning from a trip to Baltimore instead of traveling between his residence and his duty site. On the contrary, I find, as the court stated, that the officer was outside the statutory exception "for on duty law enforcement officers" because the trip was "unrelated to his duties as a Federal Protective Service officer[.]" Id. at 262 (emphasis added). I conclude, therefore, contrary to the majority, that Middleton supports the Respondent's position that Federal Protective Service officers in a nonduty status, traveling within the District of Columbia between home and work, are not within the exception for "duly appointed law-enforcement officers" under section 22-3205 of the D.C. Code. Moreover, I believe that this conclusion conforms to the principles set forth in the Opinion of the Assistant Attorney General, Office of Legal Counsel, Department of Justice, see Judge's Decision at 6-8. For this reason, I also conclude that the Judge properly concluded that the Respondent's previous practice was illegal and that the Respondent did not violate the Statute by unilaterally changing that practice to conform with applicable law.
Nonetheless, where an agency institutes a change in conditions of employment in order to comply with a legal requirement, although the agency is not obligated to negotiate over the change itself, it is obligated to bargain over the impact and implementation of that change, if the change is more than de minimis. U.S. Department of the Treasury, Customs Service, New Orleans, Louisiana and National Treasury Employees Union, Chapter 168, 38 FLRA 163, 174 (1990). In my opinion, it is reasonably foreseeable that the change instituted by the Respondent would have more than a de minimis impact on the officers in this case. It would involve officers in a much more time-consuming process of checking out weapons prior to a shift and checking them back in afterwards. This conclusion comports with the Respondent's own evaluation of the process, see Judge's Decision at 5, quoting memorandum of the Respondent's Assistant Commissioner, and with Respondent's reasons for adopting the previous practice of allowing officers to transport their weapons between home and work. Consequently, I conclude that the Respondent was obligated to negotiate over the impact and implementation of its weapons policy.
Because the Respondent failed and refused to bargain over the impact and implementation of its decision to discontinue the practice of allowing Federal Protective Service officers to transport their weapons between their residences and their duty sites within the District of Columbia, I would find that in this regard the Respondent violated the Statute. I do not believe, however, that a status quo ante remedy is possible in this case because it would involve the reinstitution of an illegal practice. United States Department of Justice, United States Immigration and Naturalization Service, El Paso District Office, 34 FLRA 1035, 1048 (1990). Accordingly, I would order the Respondent to bargain over the impact and implementation of the change and apply retroactively any matters about which the parties reach agreement. Department of Veteran Affairs, Veterans Administration Medical Center, Decatur, Georgia, 46 FLRA 339, 346-47 (1992).
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
| GENERAL SERVICES ADMINISTRATION, NATIONAL CAPITAL REGION, FEDERAL
PROTECTIVE SERVICE DIVISION, WASHINGTON, DC
Respondent |
|
| and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1733, AFL-CIO Charging Party |
|
Gary F. Davis, Esq. and
Edward P. Denney
For the Respondent
Christopher M. Feldenzer, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
DECISION
Statement of the Case
This case arose under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. § 7101, et seq. (herein the Statute).
Upon an unfair labor practice charge having been filed by the captioned Charging Party (herein the Union) against the captioned Respondent, the General Counsel of the Federal Labor Relations Authority (herein the Authority), by the Regional Director for the Washington Regional Office, issued a Complaint and Notice of Hearing. The General Counsel alleges Respondent violated the Statute by discontinuing the authorization for bargaining unit police officers to carry their firearms between their duty station and residence without providing the Union with notice and an opportunity to negotiate on the impact and implementation of the change.
A hearing on the Complaint was conducted in Washington, D.C. at which all parties were afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Briefs were filed by Respondent and the General Counsel and have been carefully considered.
Upon the entire record in this case, my observation of the witnesses and their demeanor and from my evaluation of the evidence I make the following:
Findings of Fact
At all times material the American Federation of Government Employees, AFL-CIO (herein AFGE) has been the exclusive collective bargaining representative of various of Respondent's employees and AFGE Local 1733 has been the agent of AFGE for the purpose of representing those employees. The Union represents approximately 225 of Respondent's employees, including uniformed police officers and various support employees.
Prior to 1971 Respondent's uniformed officers held "Guard" positions and were assigned to fixed posts. Guards were primarily responsible for controlling access to federal buildings, which included checking badges and building passes. All Guards carried a Colt 38 firearm, which was kept in a locked safe at the worksite when the Guard was not on duty and was obtained from supervisors prior to the start of each shift.
In 1971 the Federal Protective Service was created through an Executive Order. Subsequently, the Guard position was converted to "Federal Protective Officer" (GS-083 series). As a result of this change, the training for Federal Protective Officers was increased from a two week course to a four week course and although this enhanced training included more training for these officers in the use of a firearm, officers were not authorized to carry their firearms between their home and duty station.
In December 1988 the position description for Federal Protective Officers was changed to "Police Officer" (GS-083 series). The job itself had been transformed from a stationary one at fixed posts of duty to one where police officers were assigned to mobile patrol units to protect designated sectors in the Washington metropolitan area. This change required all of Respondent's police officers to report for roll call before each duty shift at the Washington Navy Yard rather than reporting to various duty posts. After receiving their assignments as well as a briefing, officers then reported to their assigned sectors. At the end of each shift police officers again reported to the Navy Yard. Firearms were picked up by officers at the Navy Yard at the beginning of each tour of duty and returned at the conclusion of the tour. Consistent with this change, the training afforded Respondent's police officers was further enhanced to include an 8 week initial training course with an additional 40 hours of training required semiannually.
On January 17, 1991, Respondent issued a Temporary Special Order which authorized police officers to carry their service firearm between their home and duty station. Essentially, the Desert Storm events of January 1991 and concerns over the possibility of terrorists attacks had caused Respondent to reduce the number of daily work shifts from 3 to 2 and implement 13 hour shifts each day for all police officers. The order helped to facilitate the ability of officers to get to their assigned sectors in a more efficient manner and respond more readily to any disorders. Originally, the weapons authorization provided that it would self-cancel on April 1, 1991.(1) The Temporary Special Order of January 17, 1991 provided, inter alia:
1. PURPOSE: The purpose of this order is to establish temporary procedures for the carrying of assigned revolver by police officers and supervisors to and from home and duty station.
2. CANCELLATION: This order supersedes all Divisional orders and policy statements previously issued concerning this matter . . .
3. AUTHORIZATION:
A. Effective upon the date of this order, all Police Officers and Police Supervisors (further referred to as "officer") in the 083 occupational series assigned to the National Capital Region, Federal Protection Division, General Services Administration are hereby authorized to wear and carry their Government assigned .38 caliber revolver, while off duty when travelling to and from their place of residence and official duty station.
B. All officers must agree upon either procedure 1 or 2, if neither then procedure 3 is the default.
4. PROCEDURES:
PROCEDURE 1: a) Officers who are off-duty leaving their duty station must remain in uniform and carry their assigned revolver in their issued holster in plain view. Officers must go directly to their place of residence without deviation to the most direct route. The officer should not stop at convenience stores, gas stations, or other public areas while off-duty and in full uniform. These needs should be accomplished after the weapon is properly secured. b) Once the officer arrives at home, the officer will immediately secure the weapon with an issued trigger lock, safely unload the weapon and place the revolver where it can be tightly controlled (access restricted) in the home out of reach and sight of children or others. c) An officer leaving home must again use the most direct route to the duty station and other measures prescribed in (a & b) above. An officer who fails to bring the weapon when reporting for duty will not be allowed to work and will be placed in a leave (for up to two hours) or if longer, absent without leave category (nonpay status) until such time the officer reports for duty with all assigned equipment.
PROCEDURE 2: a) Officers who are off-duty leaving their duty station who do not wish to wear their uniform home are not authorized to carry the revolver concealed or on their person. Officers in this instance will unload their weapon, place the trigger lock on and place the weapon in the trunk of their personal vehicle. The weapon will not be carried in the passenger compartment of the vehicle and the officer must go directly to their place of residence without deviation by the most direct route. The officer should not stop at convenience stores, gas stations, or other public areas while off-duty with the weapon left in the vehicle. b) Once the officer arrives at home, the officer will ensure that the issued trigger lock is in place, that the weapon is unloaded and then place the revolver where it can be tightly controlled (access restricted) in the home out of reach and sight of children or others. Procedure 1(c) also applies.
PROCEDURE 3: Officers who do not follow either procedure 1 or 2 are not authorized to carry their assigned weapon home and must upon arrival for duty, checkout their weapon as normally prescribed by Patrol Operations, FPD and other GSA guidelines.
The authorization for police officers to carry their service firearms between their home and duty station was continued even after the end of the Persian Gulf War. Indeed, on January 30, 1992, Garrett De Yulia, GSA's Assistant Commissioner, Office of Physical Security and Law Enforcement, sent a memorandum to Federal Protective Service Division Director Wulf R. Lindenau, which stated that his previous authorization which allowed police officers to transport assigned firearms from their duty station to their residence of record, was "extended indefinitely." The memorandum stated, in relevant part:
We have reviewed your memorandum dated January 21, 1992, regarding an authorization permitting Federal Protective Officers of the National Capital Region to transport their assigned firearms from their duty stations to their residence of record.
After careful consideration, we feel that your request is consistent with effective operational practices, by eliminating the need for the time consuming administrative process of firearm issuance and retrieval, and improving our capability to respond to emergency situations under employee recall conditions. Furthermore, we agree that a firearm procedure such as the one you have proposed requires establishment of regulatory procedures similar to those which you have described. Therefore, my previous authorization which allowed FPOs to transport their assigned firearm from their duty stations to their residences of record is extended indefinitely, . . .
Apparently Assistant Commissioner De Yulia thereafter inquired as to the feasibility of issuing a General Order authorizing police officers to carry their weapon to their residence. The record reveals that De Yulia was sent a memorandum dated February 16, 1993 from Melville Valkenburg, Respondent's Associate General Counsel, Real Property Division, addressing the matter as follows:
This is in reply to your request for our views concerning the proposed General Order of the Federal Protective Service Division (FPSD), National Capital Region (NCR), authorizing Federal Protective Officers (FPOs) to carry assigned firearms between their duty station and their residence.
The issue of FPOs carrying their assigned firearms while in a non-duty status to and from duty assignments has been previously considered by both the General Counsel and the Office of Legal Counsel, Department of Justice. See General Counsel memorandum of December 1, 1978 and the October 2, 1972, Opinion of the Assistant Attorney General, Office of Legal Counsel, Department of Justice which are attached. It remains our office's opinion that no authority exists to permit FPOs to carry their assigned firearms in a non-duty status between their duty station and their residence except in exceptional duty-related circumstances such as those outlined in the Justice Department opinion.
The 1972 Opinion of the Assistant Attorney General, referred to by Valkenburg in his memorandum to the GSA Administrator, states:
The Attorney General has asked me to provide you with my views on whether the Administrator of the General Services Administration is authorized to permit Federal Protective Service officers to carry their weapons while in a non-duty status. These officers are assigned to protect particular federal buildings and we understand that, under present general practice, their weapons remain at their assigned buildings. The question concerns whether the officers may be permitted as a general practice to carry their weapons back and forth between home and work and to other places when they are off duty, either openly or concealed on their persons. Except in the narrow circumstances noted below, such carriage of weapons by off-duty officers would not be authorized by federal law, and officers attempting it would probably be subject to prosecution under some State weapons laws.
The Administrator is expressly authorized "to furnish arms and ammunition" for Federal Protective Service officers. 40 U.S.C. 490(a)(2). This express statutory authority carries with it, by necessary implication, authority for the officers to carry weapons while on duty. There is, however, no express statutory provision governing carriage of weapons by these officers when they are in off-duty status, and no directly controlling judicial decisions. Therefore, the question is whether such carriage of weapons is either necessary or reasonably related to the performance of their official duties.
Unlike most law enforcement officers, who have broad duties and authority to enforce the laws throughout their jurisdictions, Federal Protective Service officers have relatively narrow and specific duties --to guard, enforce regulations, and keep the peace in and around federal buildings. The relevant statute specifically states that their "jurisdiction and policing powers . . . shall be restricted to Federal property over which the United States has acquired exclusive or concurrent criminal jurisdiction." 40 U.S.C. 318. Accordingly, should a Federal Protective Service officer observe or have reason to believe that an offense is being committed in his presence while he is off duty and away from federal buildings, he would have no more authority to act than would any other private citizen.
State criminal laws prohibiting the carrying of deadly weapons, particularly concealed weapons, reflect widely accepted legislative judgments that carriage of weapons by substantial numbers of people, away from their homes or places of business, is inherently dangerous and should be kept to a minimum, consistent with law enforcement needs. Such statutes typically contain exemptions for policemen, and some include exemptions for other narrow categories of employment. For example, the Virginia statute exempts rural mail carriers. VA. Code § 18.1-269. However, the courts have tended to construe these exemptions narrowly.
In McKenzie v. United States, 158 A.2d 912 (1960), the Court of Appeals for the District of Columbia sustained a conviction of a "special policeman" for carrying a weapon without a license. The defendant was what is generally called a security guard hired to guard particular private businesses. He was specially licensed to carry a weapon while on duty at assigned posts. However, at the time of the arrest, he had not been on duty or at a building he had been assigned to guard. The court held that the defendant was neither a "policeman" nor a "law enforcement officer" within the meaning of the District's weapons statute. Other courts have adopted similar reasoning in sustaining weapons convictions of off-duty postal employees carrying weapons away from their offices or routes. See, e.g., State v. Boone, 44 S.E. 595 (N.C. 1903); Lane v. State, 22 S.W. 140 (Tex. 1983).
In our view, the McKenzie decision is sound and substantially analogous to the present situation. Further, it should be noted that the District of Columbia statute, unlike most concealed weapons laws, prohibits carriage of weapons "either openly or concealed on or about his person." 22 D.C. Code 3204.
We can envision circumstances in which a Federal Protective Service officer may have a special duty-related reason to carry his weapon while off-duty. For example, if some officers are assigned to different and widely separated buildings on different days, the only feasible procedure might be for them to take their weapons home with them overnight. The same might be true during a riot situation when they might be subject to special call to places not ascertainable in advance. It would be impossible to catalogue in detail all such situations before the fact. The Administrator might establish general guidelines governing special duty-related situations justifying off-duty carriage of weapons. Off-duty carriage of weapons in conformity with such guidelines would be impliedly authorized by federal law and would not, by the same token, provide a basis for prosecution under State weapons statutes. However, in view of the limited powers and duties of Federal Protective Service officers, it is clear that the Administrator would not be authorized to permit off-duty carriage of weapons as a general practice, and that such carriage might well violate State weapons statutes.
The 1978 memorandum from the GSA General Counsel, referred to in Associate General Counsel Valkenburg's memorandum dated February 16, 1993, was also addressed to the GSA Administrator and essentially reached the same conclusion as the 1972 Department of Justice memorandum. The General Counsel's opinion relied in part on a 1973 case, decided by the District of Columbia Court of Appeals, wherein a Federal Protective Service police officer (FPO) was arrested for possession of a weapon in the District of Columbia. His defense was that as an FPO, he was within certain exceptions to the District of Columbia statute which restricted carrying a weapon. The exemption applied to "duly appointed law-enforcement officials." The General Counsel's memorandum, inter alia, related that the court had ruled the FPO did not fall within the exception since his only authority to carry a weapon derived from the GSA Administrator and that a "thorough search of the District of Columbia and United States statutes fails to disclose any authorization for FPOs to carry firearms other than while on duty or while in a travel status to and from duty assignments, wherever those assignments may be located." The memorandum also included the following observation:
"It should be emphasized that since FPO's jurisdiction is restricted to property under the Administrator's control, the fact that an FPO may possess a weapon while on non-duty status would give the FPO no more authority to use the weapon outside of Federal property than would any other private citizen."
By memorandum dated February 24, 1993 Assistant Commissioner De Yulia informed his Division Directors of the Agency's legal opinion that no authority exists to permit FPOs, in normal situations, to carry their assigned firearms in a non-duty status between their duty station and residence. Federal Protective Service Division Directors were instructed to take immediate steps to ensure complete compliance with the legal opinion.
The record reveals that sometime between February 16 and February 24, 1993 Director Lindenau became aware of Respondent's decision to discontinue the practice of allowing police officers to carry their weapons between their residence and the Navy Yard. Thereupon Lindenau issued an order for the immediate discontinuance of the practice by all Respondent's police officers. The announcement was made without prior notice having been given to the Union President, Albert Moody, or any agent of the collective bargaining representative.(2) Moody heard from his Union Vice President who worked the 6:00 a.m. to 2:00 p.m. shift that at the end of the shift, all police officers were required to turn in their weapons at the Navy Yard. Moody immediately met with Lindenau and was informed of the new policy. Moody expressed his displeasure with the change and Lindenau indicated that he had no choice but to implement the new policy immediately.
Within a few days after the new policy was put into effect, Moody, by memorandum dated February 26, 1993, requested to bargain on the change and requested the policy be rescinded while the parties negotiate on the impact and implementation of the change. Respondent never replied to the Union's request to bargain on the matter.
Additional Findings, Discussion and Conclusions
The General Counsel alleges Respondent's terminating the practice of allowing police officers to carry their weapons between their home and the Navy Yard (their duty station) violated the Statute, contending: police officers transporting their weapons is a condition of employment; Respondent was obligated to negotiate with the Union over the impact and implementation of the change since the impact of the change was more than de minimis; and Respondent failed to bargain on the change. In addition to challenging Respondent's defenses, the General Counsel also argues that a status quo ante remedy be imposed.
Respondent takes the position that the practice of permitting police officers to carry their weapons from their duty station to their residence was illegal and accordingly the Agency was privileged to immediately terminate the practice and that, in any event, the Union was afforded prior notice and an opportunity to negotiate on the matter but declined to do so.(3) Respondent also opposes any imposition of a status quo ante remedy.
The test the Authority has applied in deciding whether a matter concerns a condition of employment within the meaning of the Statute was set forth in Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986). In that case the Authority stated that in making such a determination it would consider: whether the matter pertains to bargaining unit employees; and the nature and extent of the effect of the matter on working conditions of those employees. Id. at 236-237. Clearly the matter at issue herein pertains bargaining unit employees and whether police officers carry their weapons home is a matter which flows solely from the employment relationship. See American Federation of Government Employees, National Border Patrol Council and National Immigration and Naturalization Council and U.S. Department of Justice, Immigration and Naturalization Service, 40 FLRA 521, 542-543, (1991). Accordingly, I conclude the matter at issue herein concerns a condition of employment within the meaning of the Statute.
When an agency changes a condition of employment of bargaining unit employees it is normally obligated under the Statute to notify and negotiate with the collective bargaining representative prior to effectuating the change. Department of the Air Force, Scott Air Force Base, 5 FLRA 9 (1981). Even though an agency in some cases may be privileged under the Statute to effectuate a change without bargaining on the decision itself, for example the methods and means of performing the agency's work or a matter involving the agency's internal security, it has been long held that the agency may nevertheless be required to negotiate on the impact and implementation of the change before effectuating the change. See Social Security Administration, 8 FLRA 517 (1982).
In the case herein the allegation is that Respondent failed to bargain with this Union regarding the impact and implementation of the change.(4) However, Respondent contends that the practice of permitting police officers to take their weapons to their residences at the completion of their tour of duty was illegal. If illegal, Respondent had no obligation to negotiate with the Union before terminating the practice. Department of the Interior, U.S. Geological Survey, Conservation Division, Gulf of Mexico Region, Metaire, Louisiana, 9 FLRA 543 (1982).
While it has not been conclusively established that it would be illegal for Respondent's police officers to continue the practice of transporting their official weapons between their duty station and residence, the record upon which Respondent relied in making its decision to terminate the practice strongly suggests the illegality of the practice. Two litigated D.C. court cases give a reasonable indication of the possible illegality of such conduct and the legal advice given by the Justice Department and the Agency's office of its General Counsel, directly urging the discontinuance of the practice based upon conclusions of illegality, appears to be sound. While some of the legal guidance relied upon is not particularly current, the record does not suggest that police officer's duties are substantially different than they were immediately prior to the change in practice in 1991 which allowed the transportation of weapons. Nor does the record disclose any authorization, or particular functions police officers currently perform, which would somehow undermine the basis upon which the legal opinions were formed. On the record herein I find and conclude Respondent, in a good faith, reasonably concluded, based upon the available resources, that the practice of permitting police officers to carry their weapons home when off duty was illegal. In these circumstances I conclude Respondent was privileged to immediately discontinue the practice prior to providing the Union with notice and an opportunity to negotiate on the decision without violating the Statute. Id.
Notwithstanding the above, Respondent was nevertheless obliged under the Statute to promptly notify the Union of the change and provide it with an opportunity to negotiate on the impact and implementation of the change unless the impact of the change was de minimis. In Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 408 (1986), the Authority held that in determining whether a change is more than de minimis it would look to "the nature and extent of the effect or reasonably foreseeable effect of the change on conditions of employment of bargaining unit employees." Counsel for the General Counsel avers that the following portion of a February 23, 1993 letter from Director Lindenau to Assistant Commissioner De Yulia arguing that police officers should retain authority to carry their weapons between their residences and the duty station supports its contention that the change was not de minimis:
. . . FPS officers remain subject to immediate recall due to extreme shortages of FPS law enforcement officers and as changes occur to the regional threat level posture. Officers today are expected to report to their base headquarters office in the Southeast Federal Center for assignment and shift briefings. This must be accomplished quickly and efficiently. Officers must be available for dispatch in the region within minutes of reporting for work. The Government benefits by officers taking their firearm home by avoiding the time-consuming chore of issuing firearms at the beginning and end of each shift. Assuming that the issuance of a firearm takes from 30 to 60 seconds each (checking and verifying the serial number, inspecting the condition of weapon, and signing the checkout register), it would take the Government about one hour at the beginning of each eight hour shift and another hour at the end of the shift to checkout/in each officer's firearm, daily (from the first officer issuance to the last based on a 60-75 officer shift). . . .
Director Lindenau cleary describes a foreseeable effect of the change which appears to have significant adverse impact on the Agency in terms of nonproductive time spent by police officers checking firearms in and out at the Navy Yard. However, each police officer would be affected only possibly one minute at the beginning and end of each workday by following an additional, but apparently innocuous, procedure and I am unable to discern on this record any other impact, adverse or otherwise, on police officers' conditions of employment by the effectuation of the change. A police officer is not required to use a weapon or enforce any law when not in duty status. Indeed officer's movements are severely restricted when transporting a weapon. Therefore it appears that transporting the weapon to the police officer's residence was for the benefit and convenience of the Agency, not the employee. Thus it is not apparent that the nature of the work is such that employees' ability to perform their work is related in any meaningful way to transporting their weapon to their residence. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 36 FLRA 655, 666-667 (1990). Accordingly I conclude that the impact of the change was de minimis and that Respondent was not obligated to negotiate with the Union concerning the impact and implementation of the change. Id.
Were I to find Respondent obligated to bargain on the impact and implementation of the change I would nevertheless not recommend ordering a status quo ante remedy on the facts herein.(5) In Federal Correctional Institution, 8 FLRA 604 (1982), the Authority announced:
. . . in determining whether a status quo ante remedy would be appropriate in any specific case involving a violation of the duty to bargain over impact and implementation, the Authority considers, among other things, (1) whether, and when, notice was given to the union by the agency concerning the action or change decided upon; (2) whether, and when, the union requested bargaining on the procedures to be observed by the agency in implementing such action or change and/or concerning appropriate arrangements for employees adversely affected by such action or change; (3) the willfulness of the agency's conduct in failing to discharge its bargaining obligations under the Statute; (4) the nature and extent of the impact experienced by adversely affected employees; and (5) whether, and to what degree, a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations.
I have considered the above factors when evaluating the matter presented herein and having noted particularly the impact on bargaining unit employees occasioned by the change, see id. at 606, and that a return to the status quo ante would require Respondent to return to a practice which may be unlawful. See United States Department of Justice, United States Immigration and Naturalization Service, El Paso District Office, 34 FLRA 1035, 1048 (1990). In the circumstances herein I conclude that even if Respondent was found to be obligated to bargain with the Union on the impact and implementation of the change, a status quo ante remedy would not be appropriate in this case.
Accordingly, in view of the foregoing and my evaluation of the entire record herein I conclude it has not been established that Respondent violated the Statute as alleged and, in any event, it would not effectuate the purposes and policies of the Statute to impose a status quo ante remedy even if a violation of the Statute was found to have occurred and I recommend the Authority issue the following:
ORDER
It is hereby ordered that the Complaint in Case No. WA-CA-30469 be, and hereby, is, dismissed.
Issued, Washington, DC, November 3, 1994
___________________________
SALVATORE J. ARRIGO
Administrative
Law Judge
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. Member Armendariz' dissenting opinion is set forth at the end of this decision.
2. Because Respondent's Opposition to the General Counsel's Exceptions was untimely filed under 5 C.F.R. § 2423.28(b), the Authority will not consider it.
3. Although the Judge initially characterized the case as one involving impact and implementation bargaining, it is clear that the complaint alleged that the Respondent violated the Statute by failing to bargain over both the substance of the change and its impact and implementation. GC's Exh. 1(b) at para. 12.
4. The officers are employed pursuant to 40 U.S.C. § 318, which provides authority for the General Services Administration to appoint "special policemen" to police "all buildings and areas owned or occupied by the United States and under the charge and control of the Administrator." 40 U.S.C. § 318(a). The federal police officers have the following powers, as described in the statute:
Special policemen appointed under this section shall have the same powers as sheriffs and constables upon property referred to in subsection (a) of this section to enforce the laws enacted for the protection of persons and property, and to prevent breaches of the peace, to suppress affrays or unlawful assemblies, and to enforce any rules and regulations promulgated by the Administrator of General Services or such duly authorized officials of the General Services Administration for the property under their jurisdiction; except that the jurisdiction and policing powers of such special policemen shall not extend to the service of civil process.
40 U.S.C. § 318(b).
5. The order states that all officers are "authorized to wear and carry their Government assigned .38 caliber revolver, while off duty when travelling [sic] to and from their place of residence and official duty station." Judge's Decision at 3. The order requires the officers to agree to one of two alternative procedures, or else be subjected to a third procedure. Under Procedure 1, officers leaving their duty station are required to remain in uniform, carry their firearm in their issued holster in plain view, go directly home without deviating from the most direct route, and upon arriving home, immediately secure the weapon with an issued trigger lock, unload the weapon and place it in an area of restricted access. Similar requirements apply when officers leave home to return to duty. If the officer fails to bring the weapon when reporting for duty, the officer will not be permitted to work and will be placed on leave until the officer reports for duty with all assigned equipment. Under Procedure 2, an officer who does not wish to wear his or her uniform home must unload his or her weapon and place it in the trunk of his or her personal vehicle, and should not stop in any public area while off-duty with the weapon left in the vehicle. Upon arriving home, and upon returning to duty, the officer must follow the same steps as in Procedure 1. Under Procedure 3, officers who do not follow either Procedure 1 or 2 are not authorized to carry weapons home and must, upon arrival for duty, and at the end of the their shift, check their weapons in and out according to the usual procedures.
6. Within a few days after the policy was put into effect, the Union Vice President requested to bargain on the change, and requested that the policy be rescinded until the parties negotiated on the impact and implementation of the change. The Agency did not reply to the Union's request.
7. The Judge also held that the Agency was not obligated to bargain with the Union over the impact and implementation of the change because the impact of the change was de minimis. The General Counsel excepted to this portion of the Judge's decision. However, in view of our decision that the Agency committed an unfair labor practice in failing to notify and bargain with the Union prior to implementing the change, it is unnecessary to further consider this aspect of the Judge's decision.
8. The Judge concluded that even if the Agency was obligated to bargain on the impact and implementation of the change, a status quo ante remedy was inappropriate, given the minimal impact of the change on the employees, and because of the unlawful nature of the Agency's practice.
9. The Agency does not dispute that the matter of whether unit employees are permitted to carry their weapons between their residences and duty stations concerns unit employees' conditions of employment. Moreover, the record indicates that the police officers in this case are required to carry weapons in the regular course of their employment. As such, the question of whether those police officers may be permitted to carry weapons between their residences and duty stations clearly pertains to bargaining unit employees and flows solely and directly from their employment relationship. See American Federation of Government Employees, National Border Patrol Council and National Immigration and Naturalization Council and U.S. Department of Justice, Immigration and Naturalization Service, 40 FLRA 521, 542-43 (1991) reversed as to other matters, 975 F.2d 218 (5th Cir. 1992). Consequently, we find, in agreement with the Judge, that the matter at issue concerns a condition of employment within the meaning of section 7103(a)(14) of the Statute. See generally, Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986).
10. The D.C. Code provided then, and now, in relevant part:
§ 22-3204
(a) No person shall within the District of Columbia carry either openly or concealed on or about his person, except in his dwelling house or place of business or on other land possessed by him, a pistol, without a license therefor issued as hereinafter provided, or any deadly or dangerous weapon capable of being so concealed . . . .
§ 22-3205
The provisions of section 22-3204 shall not apply to . . . policemen or other duly appointed law-enforcement officers . . . or to officers or employees of the United States duly authorized to carry a concealed pistol in the usual or ordinary course of such business . . . or to any person while carrying a pistol unloaded in a secure wrapper from the place or purchase to his home or place of business or to a place of repair or back to his home or place of business in moving goods from one place of abode or business to another.
11. To the extent that our dissenting colleague interprets Middleton as requiring that an officer be in a duty status in order to carry a weapon, we disagree. The court stated that its research failed to disclose authority for officers to carry firearms except "while on duty or while in a travel status to and from duty assignments." 305 A. 2d at 262 (emphasis added). If, as the dissent concludes, the second alternative is interpreted to refer only to travel by officers while they are in a duty status, it is redundant of the first alternative and, as a result, is rendered meaningless.
12. The D.C. Code Ann. § 4-114, provides for the appointment of "special policemen" to be paid by corporations or individuals whose property the policemen are appointed to guard. Applicable regulations provide that a weapon carried by a special policeman whose commission extends to more than one person's or corporation's property "may be carried only when such special policeman is on actual duty in the area thereof or while traveling, without deviation, immediately before and immediately after the period of actual duty, between such area and the residence of such special policeman." Timus, 406 A.2d at 1272 (quoting Manual of the Metropolitan Police Department, Ch. XI, § 11.8).
ALJ's Footnotes Follow:
1. Apparently during this period police officers were still reporting to the Navy Yard headquarters at the beginning and end of each shift.
2. Lindenau testified that the Union had some notice of the change in that a few days earlier he told Moody that he had heard a "negative interpretation may be forthcoming" regarding the authorization for carrying weapons to residences.
3. Respondent raised this at opening argument during the hearing but did not address it in its brief.
4. Section 7106(b) of the Statue provides, in relevant part:
(b) Nothing in this section shall preclude any agency and any labor organization from negotiating--
(2) procedures which management officials of the agency will observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.
5. I reject Respondent's defense that the Union declined an opportunity to negotiate on the change. My findings, based upon the testimony of Union President Moody, reveal that the change was implemented prior to the Union receiving notification and indeed Lindenau testified that when he announced the change to Moody, he told him it had to be implemented immediately. No opportunity to negotiate was provided before the change took effect, and subsequent thereto Respondent did not respond to the Union's request to bargain on the matter. Nor do I find Lindenau's statement to Moody a few days before implementation of the change that a "negative interpretation may be forthcoming" regarding the practice to constitute notice within the meaning of the Statute.