[ v57 p852 ]
57 FLRA No. 183
UNITED STATES
DEPARTMENT OF THE AIR FORCE
913TH AIR WING
WILLOW GROVE AIR RESERVE STATION
WILLOW GROVE, PENNSYLVANIA
(Respondent)
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R3-32, SEIU, AFL-CIO
(Charging Party/Union)
BN-CA-00252
BN-CA-00354
_____
DECISION AND ORDER
June 14, 2002
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
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 (Judge) filed by the Respondent. [n2] The consolidated complaints allege that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to provide notice of changes in conditions of employment to the Union's president, and by implementing two particular changes -- in its security guards' duties and staffing requirements -- without providing the Union notice and an opportunity to bargain.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings and conclusions that the Respondent violated § 7116(a)(1) and (5) [ v57 p853 ] of the Statute. However, we set aside the Judge's determination that a status quo ante remedy is warranted with regard to the change in the staffing requirement. We adopt the remainder of the Judge's recommended Order.
II. Background
On April 1, 2000, the Respondent made two changes to its bargaining unit employees' conditions of employment: (1) requiring its lead security guards to assume shift supervisor duties in the absence of shift supervisors; and (2) increasing the number of security guards assigned to each shift from four to five. [n3] Prior to these changes, the following exchanges took place between the Respondent and the Union:
- Several weeks before the changes, the Respondent provided one of the Union's stewards with a copy of a memorandum setting out the change in lead guard duties ("the lead guard memo").
- The steward forwarded the lead guard memo, which stated that the change was effective immediately, to the Union president, who requested a meeting with the Respondent.
- The Union president met with the Respondent, where she reiterated a Union request that she be notified of changes in conditions of employment.
- According to the Respondent, it provided one of the Union's stewards with a copy of a second memorandum which included the change in the staffing requirement ("the staffing memo").
- On March 27, the Respondent posted a memorandum to its employees announcing both changes ("the March 27 memo").
- After learning of the March 27 memo, the Union sent a letter to the Respondent, which was dated March 31 and received by the Respondent on April 1, requesting that the Respondent bargain over the impact and implementation of the changes and delay their implementation pending bargaining. The Respondent replied that it would not delay the implementation of the changes, but would discuss any Union proposals.
The General Counsel issued two complaints, which were consolidated for hearing, alleging that the Respondent violated § 7116(a)(1) and (5) of the Statute by changing conditions of employment without providing the Union with adequate notice and an opportunity to bargain. During the hearing before the Judge, the General Counsel amended the second complaint to include a charge that the Respondent had refused to provide notice of changes in conditions of employment to the Union president, whom the Union had designated to receive notice.
III. Judge's Decision
The Judge determined that the Respondent violated § 7116(a)(1) and (5) of the Statute by refusing to send notice of changes in conditions of employment to the Union president, as requested. In this regard, the Judge found that the Union had a right under the Statute to designate its representatives, and that it had not waived that right in Article 3, Section 4 of the parties' agreement or through past practice, as alleged by the Respondent. [n4]
The Judge determined that the Respondent also violated § 7116(a)(1) and (5) of the Statute by failing to provide adequate advance notice and an opportunity to bargain over the two changes.
With regard to the change in lead guard duties, the Judge found that the lead guard memo indicated that the change had already been implemented and, as a result the memo presented the change as a fait accompli. The Judge also determined that the Union steward who received the lead guard memo did not waive the Union's right to bargain over the change by stating, upon receiving the memo, that the subject of the memo was "not a Union issue" because the steward was not authorized to receive the memo and the steward's statement "could have no impact on a policy that had apparently been implemented already." [n5] Judge's Decision at 20. In addition, the Judge found that the change in lead guard duties had more than a de minimis impact on bargaining unit employees' conditions of employment because it altered the nature and quantity of the lead guards' work and affected the promotional potential of both the lead guards and other guards not assigned additional duties. [ v57 p854 ]
With regard to the change in the staffing requirement, the Judge found that the staffing memo did not provide adequate notice. In this regard, the Judge determined that the memo did not indicate that a change was being made and, to the extent it referenced the new policy, it presented that policy as already having been implemented. [n6]
In addition, the Judge determined that the March 27 memo did not constitute adequate notice of the two changes because it was not provided to the Union and it announced that the changes would be implemented on April 1. The Judge further found that the Union promptly demanded to bargain upon learning of the memo, and that the Respondent reinforced the futility of attempting to bargain by refusing to delay implementation of the changes.
As a remedy, the Judge recommended a cease and desist order, a notice posting, an order that the Respondent notify the Union president of, and bargain over, changes in conditions of employment, and a return to the status quo ante. In determining that a status quo ante remedy was warranted, the Judge assessed the five factors established by the Authority in Federal Correctional Inst., 8 FLRA 604 (1982) (FCI). In this regard, the Judge found that the Respondent provided inadequate notice, refused to delay implementation of the proposals when the Union requested bargaining, and provided no convincing evidence that a return to the previous policies would disrupt the Respondent's operations. Based on these findings, the Judge concluded that all but the fourth FCI factor weighed in favor of awarding a status quo ante remedy. With respect to the fourth FCI factor, the Judge found that the change in the lead guard duties would likely have a "much less severe" adverse affect than the change in the staffing requirement, which he determined would "have a significant impact on all [of the Respondent's] security employees." Judge's Decision at 26-27. The Judge concluded that, overall, the fourth FCI factor was "neutral." Id. at 27.
IV. Respondent's Exceptions
The Respondent excepts to the Judge's finding that it violated § 7116(a)(1) and (5) of the Statute by refusing to provide notice to the Union president. In this regard, the Respondent contends that the parties' agreement does not specify any particular Union official to receive notice and that past practice between the parties was to provide notice to Union stewards. In addition, the Respondent argues that the Union's stewards processed and negotiated changes without indicating that they had been delegated only limited authority.
The Respondent also excepts to the Judge's finding that the Union president did not receive adequate notice of the change in lead guard duties when that memo was forwarded to her by a Union steward. With regard to the change in the staffing requirement, the Respondent argues that a Union steward indicated that he would forward the staffing memo to the Union president, and that the memo provided notice of the change. Based on the foregoing, the Respondent argues that the Union had sufficient advance notice of each change and waived its right to bargain when it failed to request bargaining or submit any specific bargaining proposals. In addition, the Respondent contends, the Judge erred in finding that the Union steward who received the lead guard memo did not waive the Union's right to bargain over the change by stating that it was not a Union issue.
In addition, the Respondent excepts to the Judge's finding that the impact of the change in lead guard duties was more than de minimis. Specifically, the Respondent argues that only three of its 240 bargaining unit employees were affected by the change, that lead guards are rarely required to perform the new duties, and that the additional requirements are minimal and would not affect the promotional opportunities of bargaining unit employees.
Finally, the Respondent contends that the Judge erred in imposing a status quo ante remedy with respect to the new staffing requirement. [n7] In this regard, the Respondent argues that it provided "at least what it believed to be" proper notice and has "repeatedly offered" to bargain with the Union. Exceptions at 23-24. The Respondent further argues that the level of staffing is a security matter, that the change was in response to the findings of a vulnerability assessment, and that a return to the previous level of staffing would "leave its assets unprotected." Id. at 23. [ v57 p855 ]
V. Analysis and Conclusions
A. The Judge did not err in finding that the Respondent failed to provide adequate notice and an opportunity to bargain over changes in conditions of employment.
Prior to implementing a change in conditions of employment, an agency must provide the exclusive representative with notice of the change and an opportunity to bargain over those aspects of the change that are within the duty to bargain. United States Penitentiary, Leavenworth, Kan., 55 FLRA 704, 715 (1999). Adequate notice of a change triggers the exclusive representative's responsibility to request bargaining. Id.
1. The Respondent was required to provide notice of changes in conditions of employment to the Union president.
An exclusive representative has the right to designate its representatives when fulfilling its responsibilities under the Statute, and an agency violates section 7116(a)(1) and (5) of the Statute when it refuses to honor a union's designation. Air Force Material Command, Warner Robins Air Logistics Ctr., Robins Air Force Base, Ga., 54 FLRA 1529, 1534 (1998). In this regard, an exclusive representative has the right to designate representatives for specific, limited purposes, including the receipt of changes in conditions of employment. See, e.g., Federal Aviation Admin., 23 FLRA 209, 217 (1986) (agency required to notify union president of changes in conditions of employment). See also Food & Drug Admin., Newark Dist. Office, W. Orange, N.J., 47 FLRA 535, 566-67 (1993) (FAA) (agency required to recognize and deal with attorney appointed by union to represent grievant at second step of grievance procedure) (FDA). An agency fails to provide adequate notice of changes in conditions of employment if it does not notify the representative designated by the Union. See FAA, 23 FLRA at 217 (agency failed to notify union's national president).
The Judge made an uncontested finding that Union representatives had requested that the Union president be served with notice of changes in conditions of employment. The Respondent argues that it was free to ignore this request because notice to the Union's stewards was "not inconsistent with" Article 3, Section 4 of the parties agreement, which requires only that the Respondent notify "the Union" of changes in conditions of employment. Exceptions at 13; Jt. Exh. 4 at 2.
When, as here, a respondent claims as a defense to an alleged unfair labor practice that a specific provision of the parties' collective bargaining agreement permitted its actions, the Authority will determine the meaning of the provision and resolve the unfair labor practice complaint accordingly. IRS, Wash., D.C., 47 FLRA 1091, 1103 (1993) (IRS). Article 3, Section 4 of the parties' agreement restates the Respondent's obligation under the Statute to provide notice to the Union. That obligation requires that an agency provide notice to the specific individual designated to receive notice by its employees' exclusive representative. The Respondent provides no evidence, and nothing in the record suggests, that the provision was meant to preclude the Union from exercising its right under the Statute to designate a specific individual to receive notice. Thus, the Respondent has not demonstrated that the Judge erred in finding that Article 3, Section 4 of the parties' agreement does not provide a defense to the Respondent's refusal to serve the Union president with notice of changes in conditions of employment.
The Respondent also has not demonstrated that there was a mutually accepted past practice between the parties that the Respondent would notify the Union's stewards of changes in conditions of employment. In order to find the existence of a past practice, there must be a showing that the practice has been consistently exercised over a significant period of time and followed by both parties, or followed by one party and not challenged by the other. United States Patent & Trademark Office, 57 FLRA 185, 191 (2001). The record reveals that each witness for the Union and the Respondent testified that the Union challenged the Respondent's service of notice on the Union's stewards. Thus, the Respondent has not demonstrated that the Judge erred in concluding that there was no mutually accepted past practice between the parties that the Respondent would serve notice of changes in conditions of employment on the Union's stewards.
The Respondent argues that, apart from contract and past practice, the Union's stewards held themselves out as empowered to "deal with" the Respondent by processing and negotiating changes. Exceptions at 14. However, as previously discussed, the Union is entitled to designate representatives for specific purposes. See, e.g., FAA, 23 FLRA at 217; FDA, 47 FLRA at 535, 566-67. Thus, even if the Union's stewards represented the Union with regard to the processing and negotiation of changes, the Respondent was still obligated to provide initial notice to the individual designated by the Union for that purpose. [ v57 p856 ]
2. The Union did not waive its right to bargain.
Despite an agency's failure to provide its employees' exclusive representative with adequate notice of a change in conditions of employment, the exclusive representative's "actual notice" of the change is sufficient to trigger its responsibility to request bargaining or waive the right to bargain. See, e.g., United States Dep't of Health & Human Services, Reg. II, N.Y., N.Y., 26 FLRA 814, 826 (1987) (no violation of Statute for failure to provide adequate notice where unit employee forwarded agency's memorandum announcing forthcoming change to union president). Cf. United States Dep't of Justice, Immigration & Naturalization Serv., Wash., D.C., 43 FLRA 241, 250 (1991) (union did not waive right to bargain where it "could not reasonably have been expected to know" of change). However, the obligation to request bargaining is not triggered if the change is presented as already having been "decided upon." United States Dep't of Labor, Wash., D.C., 44 FLRA 988, 990, 994, 1007 (1992) (notice to union of forthcoming change after notice to bargaining unit employees that change would occur did not trigger obligation to request bargaining) (DOL, Wash., D.C.).
The Judge's finding that the lead guard memo did not indicate that a change would be made but, rather, indicated that a change had already been made is supported by the fact that the memo stated that the change was effective immediately and bore a date that had passed. In support of its claim that the Judge erred in finding that the lead guard memo presented the change as having already been implemented, the Respondent argues that the Union president did not testify that she viewed the change as having been implemented, and cites her testimony that a purpose of the meeting she arranged with the Respondent after receiving the lead guard memo was to "get to bargain on . . . lead guard duties." Exceptions at 18 (citing Tr. 182). However, contrary to the Respondent's assertion, the Union president specifically testified that she believed that the change in lead guard duties had been implemented immediately as of the date on the lead guard memo. Tr. 192-93. In addition, she testified that she believed that the lead guards had begun performing supervisory duties as of that date. Id. Thus, the Respondent has not demonstrated that the Judge erred in finding that the lead guard memo did not provide the Union president with adequate notice and an opportunity to bargain over the change in lead guard duties.
With regard to the change in the staffing requirement, the Judge found that, even if the Union president received the staffing memo, it could not have provided her with adequate notice and an opportunity to bargain because it made no mention of a change. In this regard, the staffing memo does not mention any change, but simply identifies security personnel and rules for staffing posts. Moreover, contrary to the Respondent's specific assertion, the memo does not indicate on the top of its second page that a change is being made, but states only that "THE FOLLOWING ARE THE 913TH SECURITY FORCES POST LISTING[S]. THE FIRST FIVE POSTS HAVE TO BE MANNED AT ALL TIMES." Therefore, as found by the Judge, even if someone had identified the requirement for staffing the five posts as a change, the memo refers to it in the present tense, as already in effect. In addition, the memo was addressed to the Respondent's supervisors, did not provide a specific effective date, and bore a date that had passed. In these circumstances, the Respondent has not demonstrated that the Judge erred in finding that the staffing memo did not provide the Union president with adequate notice or an opportunity to bargain over the change in the staffing requirement. [n8]
Based on the foregoing, in the particular circumstances of this case, the Respondent has not demonstrated that the Judge erred in finding that each of the changes was presented as a fait accompli, and that the Union thus did not have adequate notice of the changes. Accordingly, the Respondent has not demonstrated that the Judge erred in concluding that the Union did not waive its right to bargain by failing to request bargaining. See DOL, Wash., D.C., 44 FLRA at 990, 994.
The Respondent also argues that one of the Union's stewards waived the Union's right to bargain over the change in lead guard duties when, upon receiving the lead guard memo, he stated that it did not concern a Union issue. However, there is no assertion or evidence that the steward mentioned waiver or stated that he was relinquishing any right on behalf of the Union. Moreover, the change was presented to the steward as already having been implemented. Thus, the Respondent has not demonstrated that the Judge erred in finding that the steward did not waive the Union's right to bargain. [ v57 p857 ]
3. The effect of the change in lead guard duties was more than de minimis.
An agency is not obligated to bargain over the impact and implementation of a change if it has only a de minimis effect on bargaining unit employees' conditions of employment. Air Force Logistics Command, Warner Robins Air Logistics Ctr., Robins AFB, Ga., 53 FLRA 1664, 1668 (1998). In assessing whether the effect of a change is more than de minimis, the Authority looks to the nature and extent of either the effect, or the reasonably foreseeable effect, on unit employees' conditions of employment. United States Dep't of the Treasury, Internal Revenue Serv., 56 FLRA 906, 913 (2000).
The Respondent argues that the change in lead guard duties, which increased their supervisory duties, affected only three lead guards in a bargaining unit of 240 employees, that the new duties are minimal, and that the lead guards are rarely required to perform the new duties. However, the number of employees affected is not a controlling consideration in determining whether a change is de minimis. See, e.g., Veterans Admin. Med. Ctr., Phoenix, Ar., 47 FLRA 419, 424 (1993) (change affecting single employee not de minimis). Moreover, the new or more frequent supervisory duties given to the lead guards were a significant addition to their duties, and it is reasonably foreseeable that they could affect the relative qualification for promotion of all bargaining unit employees. See United States Dep't of Justice, Immigration & Naturalization Serv., United States Border Patrol, S.D. Sector, S.D., Cal., 35 FLRA 1039 (1990) (requirement that employees perform new duties or old duties to extent not performed in past had foreseeable effect on employment and promotional opportunities). Further, the change in policy was not temporary. Thus, it is reasonably foreseeable that, over time, the lead guards will substitute for absent supervisors on many occasions. Based on the foregoing, the Respondent has not demonstrated that the Judge erred in finding that the effect of the change in lead guard duties was more than de minimis.
B. A status quo ante remedy with respect to the change in the staffing requirement is not appropriate
Where an agency has failed to bargain over the impact and implementation of a management decision, the Authority evaluates the appropriateness of a status quo ante remedy using the factors set forth in FCI, 8 FLRA 604. [n9] United States Army Corps of Engineers, Memphis Dist., Memphis, Tenn., 53 FLRA 79, 84 & n.4 (1997) (Army Corps, Memphis). The FCI factors are: (1) whether and when notice was given to the union by the agency concerning the change; (2) whether and when the union requested bargaining; (3) the willfulness of the agency's conduct in failing to discharge its bargaining obligation; (4) the nature and extent of the adverse impact on unit employees; and (5) whether and to what degree a status quo ante remedy would disrupt or impact the efficiency and effectiveness of the agency's operations. United States Immigration & Naturalization Serv., Wash., D.C., 55 FLRA 69, 70 n.3 (1999).
The appropriateness of a status quo ante remedy must be determined on a case-by-case basis, carefully balancing the nature and circumstances of the particular violation against the degree of disruption in government operations that would be caused by such a remedy. FCI, 8 FLRA at 606. Where, as here, the Respondent claims that a status quo ante remedy would seriously impair its security by "leav[ing] its assets unprotected[,]" exceptions at 23, the Authority requires that a conclusion that a status quo ante remedy would be disruptive to the operations of an agency be "based on record evidence." Army and Air Force Exchange Service, Waco Distribution Center, Waco, Tex., 53 FLRA 749, 763 (1997). We find, based on the existing record, that a status quo ante remedy is not appropriate in this case.
Record testimony shows that the increase in staffing from 4 to 5 employees was based on an Air Force [ v57 p858 ] Instruction and on a vulnerability assessment that demonstrated the need for an additional security force member on the flight line in order to protect the Respondent's resources. Transcript at 303. The vulnerability assessment reflected as a "negative" the fact that only 4 employees were working, and further showed that 2 employees, not 1, were needed on the flight line at all times. Id. This testimony regarding the vulnerability assessment was not challenged on cross-examination, and the General Counsel has not disputed the conclusion of the vulnerability assessment that an additional security force member was required on the flight line in order to protect the Respondent's resources. The fact that the text of the vulnerability assessment was not entered into the record does not detract from the unchallenged record evidence - the cited testimony - demonstrating the need for the additional security force member. In addition, the testimony regarding the vulnerability assessment makes it plain that a return to the previous staffing level would not meet the Respondent's security needs.
Accordingly, this undisputed testimony establishes a valid security reason for raising the staffing level. In the absence of any challenge to the conclusion of the vulnerability assessment that an additional security force member was needed for security, and noting the heightened security needs required by Federal installations following the events of September 11, 2001, we believe that a status quo ante remedy is inappropriate. Such a remedy would adversely affect the security level at the Air Reserve station and, as such, would disrupt and impair the efficiency and effectiveness of the Respondent's operations.
VI. Order
Pursuant to § 2423.41 of our Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, the United States Department of the Air Force, 913th Air Wing, Willow Grove Air Reserve Station, Willow Grove, Pennsylvania shall:
1. Cease and desist from:
(a) Changing the conditions of employment of bargaining unit employees without providing the National Association of Government Employees, Local R3-32, SEIU, AFL-CIO (Union) with adequate notice and an opportunity to bargain to the extent required by the Statute.
(b) Failing and refusing to recognize Cynthia Fullenwellen, President of the Union, as the Union's designated official for receiving notice of changes in conditions of employment of bargaining unit employees.
(c) In any like or related manner, interfering with, restraining or coercing employees in the exercise of rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Rescind implementation of its decision to utilize its Lead Guards as temporary supervisors.
(b) Notify the Union of any proposed changes in conditions of employment by sending written notice of such changes to Cynthia Fullenwellen, President of the Union, and upon request, bargain with the Union over changes in conditions of employment of bargaining unit employees to the extent required by the Statute.
(c) Post at its Willow Grove, Pennsylvania facilities, 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 Base Commanding Officer 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.
(d) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Boston 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. [ v57 p859 ]
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the United States Department of the Air Force, 913th Air Wing, Willow Grove Air Reserve Station, Willow Grove, Pennsylvania violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.
We hereby notify employees that:
WE WILL NOT change the conditions of employment of bargaining unit employees until we have provided the National Association of Government Employees, Local R3-32, SEIU, AFL-CIO with notice and an opportunity to bargain to the extent required by the Federal Service Labor-Management Relations Statute.
WE WILL NOT refuse to recognize Cynthia Fullenwellen, President of the National Association of Government Employees, Local R3-32, SEIU, AFL-CIO, as the Union's designated representative for receiving notices of proposed changes in conditions of employment of bargaining unit employees.
WE WILL rescind implementation of our decision to utilize its Lead Guards as temporary supervisors.
WE WILL notify the National Association of Government Employees, Local R3-32, SEIU, AFL-CIO of proposed changes by sending a written notice to the President of the Union and, upon request of the Union, bargain over changes in conditions of employment to the extent required by the Federal Service Labor-Management Relations Statute.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.
________________________
(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, Federal Labor Relations Authority, Boston Regional Office, whose address is: 99 Summer Street, Suite 1500, Boston, Massachusetts 02110-1200, and whose telephone number is (617) 424-5730.
File 1: Authority's Decision in 57 FLRA No.
183
File 2: Opinion of Member Pope
File 3: ALJ's Decision
Footnote # 1 for 57 FLRA No. 183 - Authority's Decision
Member Pope's opinion, dissenting as to the remedy, is set forth at the end of this decision.
Footnote # 2 for 57 FLRA No. 183 - Authority's Decision
The General Counsel filed an opposition to the exceptions. Under § 2429.25 of the Authority's Regulations, the General Counsel was required to file an original and four copies of its opposition with the Authority. However, the General Counsel filed only an original and three copies, and subsequently failed to comply with an Authority order directing it to submit an additional copy. Accordingly, we do not consider the General Counsel's opposition. See NAGE, Local R3-32, 57 FLRA 624, 624 n.* (2001).
Footnote # 3 for 57 FLRA No. 183 - Authority's Decision
Unless otherwise stated, all dates referenced are in the year 2000.
Footnote # 4 for 57 FLRA No. 183 - Authority's Decision
Article 3, Section 4 of the parties' agreement states, in pertinent part:
The Employer will notify the Union in writing of proposed changes in conditions of employment of unit employees.
Judge's Decision at 3; Jt. Exh. 4 at 2.
Footnote # 5 for 57 FLRA No. 183 - Authority's Decision
Because he found that the steward's statement could not have waived the Union's right to bargain, the Judge did not resolve conflicting testimony as to whether the steward in fact made the statement.
Footnote # 6 for 57 FLRA No. 183 - Authority's Decision
Because he found that the staffing memo did not provide notice, the Judge did not resolve conflicting testimony as to whether the Respondent gave the memo to a Union steward or determine whether the Union president received the memo.
Footnote # 7 for 57 FLRA No. 183 - Authority's Decision
The Respondent does not except to the Judge's recommendation that a status quo ante remedy be ordered with regard to the change in lead guard duties.
Footnote # 8 for 57 FLRA No. 183 - Authority's Decision
As the memo did not provide adequate notice, it is irrelevant whether it was provided to the Union president by a steward, as claimed by the Agency, and, as discussed previously, the Judge did not resolve conflicting testimony in this regard.
Footnote # 9 for 57 FLRA No. 183 - Authority's Decision
The Judge, citing GSA, Nat'l Capital Reg., Fed. Prot. Serv. Div., Wash., D.C., 50 FLRA 728, 742 (1995), rev'd and remanded on other grounds, sub nom. GSA v. FLRA, 86 F.3d. 1185 (D.C. Cir. 1996), evaluated whether there were "special circumstances" warranting the withholding of a status quo ante remedy. Judge's Decision at 26. The "special circumstances" test applies only where an agency is obligated to bargain over the substance of a change. Army Corps, Memphis, 53 FLRA at 84. As the Judge found that the Respondent was obligated to bargain only over the impact and implementation of the changes, the special circumstances test does not apply to this case.