Pennsylvania Army and Air, National Guard (Respondent) and Association of Civilian Technicians (Complainant) 

 



[ v01 p311 ]
01:0311(38)CA
The decision of the Authority follows:


 1 FLRA No. 38
 
 PENNSYLVANIA ARMY AND AIR
 NATIONAL GUARD
 Respondent
 
 and
 
 ASSOCIATION OF CIVILIAN TECHNICIANS
 Complainant
 
                                            Assistant Secretary
                                            Case No. 20-06613(CA)
 
                            DECISION AND ORDER
 
    ON JANUARY 9, 1979, ADMINISTRATIVE LAW JUDGE WILLIAM B. DEVANEY
 ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
 PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN THE UNFAIR LABOR
 PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT IT CEASE AND
 DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS AS SET FORTH IN
 THE ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
 NO EXCEPTIONS WERE FILED TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
 DECISION AND ORDER.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
 TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
 NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
 REGULATIONS (44 F.R. 7).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
 THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
 HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
 HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS
 ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE
 SUBJECT CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
 AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS AND RECOMMENDATIONS.  /1/
 
                                   ORDER
 
    PURSUANT TO SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS
 AND SECTION 7135 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE THE AUTHORITY HEREBY ORDERS THAT THE PENNSYLVANIA ARMY AND AIR
 NATIONAL GUARD SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) UNILATERALLY ALTERING OR CHANGING THE ESTABLISHED POLICY OF
 ALLOWING COMMITTEES OF
 
    EMPLOYEES DULY AUTHORIZED TO ADMINISTER MISCELLANEOUS FUNDS,
 GENERALLY KNOWN AS RECREATION
 
    FUNDS, FUNDED BY RECEIPTS FROM VENDING MACHINES, AND/OR THE EMPLOYEE
 MEMBERS OF EACH SUCH
 
    FUND, AS THE CASE MAY BE, TO RECEIVE AND TO EXPEND SUCH FUNDS IN THE
 SOLE DISCRETION OF SUCH
 
    COMMITTEES, AND/OR THE MEMBERS OF EACH SUCH FUND, WITHOUT FIRST
 AFFORDING THE ASSOCIATION OF
 
    CIVILIAN TECHNICIANS, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES,
 NOTICE AND AN OPPORTUNITY
 
    TO MEET AND CONFER CONCERNING A PROPOSED CHANGE IN SUCH ESTABLISHED
 POLICY.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN
 
    THE EXERCISE OF THEIR RIGHTS ACCORDED BY EXECUTIVE ORDER 11491, AS
 AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION:
 
    (A) RESCIND PENNSYLVANIA MILITARY REGULATIONS NUMBER 37-3,
 PENNSYLVANIA AIR NATIONAL GUARD
 
    REGULATIONS NUMBER 11-2, DATED OCTOBER 3, 1977, SO FAR AS IT APPLIES
 TO MISCELLANEOUS FUNDS,
 
    GENERALLY KNOWN AS RECREATION FUNDS, FINANCED BY RECEIPTS FROM
 VENDING MACHINES LOCATED AT
 
    RESPONDENT'S FACILITIES.
 
    (B) POST AT EACH FACILITY COPIES OF THE ATTACHED NOTICE MARKED
 "APPENDIX" ON FORMS TO BE
 
    FURNISHED BY THE AUTHORITY.  UPON RECEIPT OF SUCH FORMS THEY SHALL BE
 SIGNED BY THE ADJUTANT
 
    GENERAL, PENNSYLVANIA ARMY AND AIR NATIONAL GUARD, AND SHALL BE
 POSTED AND MAINTAINED BY HIM
 
    FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING
 ALL BULLETIN BOARDS AND
 
    OTHER PLACES WHERE NOTICES TO ALL CIVILIAN TECHNICIANS ARE
 CUSTOMARILY POSTED.  THE ADJUTANT
 
    GENERAL SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE
 NOT ALTERED, DEFACED, OR
 
    COVERED BY ANY OTHER MATERIAL.
 
    (C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
 30 DAYS FROM THE DATE
 
    OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C., MAY 9, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
        NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
 
           THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
 
          EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
 
            UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 
                                 RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT UNILATERALLY ALTER OR CHANGE THE ESTABLISHED PAST
 PRACTICE OF ALLOWING COMMITTEES OF EMPLOYEES DULY AUTHORIZED TO
 ADMINISTER MISCELLANEOUS FUNDS, GENERALLY KNOWN AS RECREATION FUNDS,
 FUNDED BY RECEIPTS FROM VENDING MACHINES, AND/OR THE EMPLOYEE MEMBERS OF
 EACH SUCH FUND, AS THE CASE MAY BE, TO RECEIVE AND TO DISBURSE SUCH
 FUNDS IN THE SOLE DISCRETION OF SUCH COMMITTEES AND/OR THE MEMBERS OF
 EACH FUND, WITHOUT FIRST AFFORDING THE ASSOCIATION OF CIVILIAN
 TECHNICIANS, THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, NOTICE AND
 AN OPPORTUNITY TO MEET AND CONFER CONCERNING A PROPOSED CHANGE IN SUCH
 ESTABLISHED POLICY.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
    WE WILL RESCIND PENNSYLVANIA MILITARY REGULATIONS NUMBER 37-3,
 PENNSYLVANIA AIR NATIONAL GUARD REGULATION NUMBER 11-2, DATED OCTOBER 3,
 1977, INSOFAR AS IT APPLIES TO RECREATION FUNDS FINANCED BY RECEIPTS
 FROM VENDING MACHINES LOCATED ON OUR PREMISES.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  BY:  (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
 ROOM 509, VANGUARD BUILDING, P.O. BOX 19257, 1111 - 20TH STREET, N.W.,
 WASHINGTON, D.C.  20036.
 
    LEONARD SPEAR, ESQUIRE
 
    MERANZE, KATZ, SPEAR & WILDERMAN
 
    TWELFTH FLOOR, LEWIS TOWER BUILDING
 
    15TH AND LOCUST STREETS
 
    PHILADELPHIA, PENNSYLVANIA 19102
 
                            FOR THE COMPLAINANT
 
    MAJOR GEORGE M. ORNDOFF
 
    ADJUTANT GENERAL'S OFFICE
 
    DEPARTMENT OF MILITARY AFFAIRS
 
    COMMONWEALTH OF PENNSYLVANIA
 
    ANNVILLE, PENNSYLVANIA 17003
 
                            FOR THE RESPONDENT
 
    BEFORE:  WILLIAM B. DEVANEY
 
                         ADMINISTRATIVE LAW JUDGE
 
                           CASE NO. 20-06613(CA)
 
                            DECISION AND ORDER
 
    THIS PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED (HEREINAFTER
 ALSO REFERRED TO AS THE "ORDER"), WAS INITIATED BY A CHARGE FILED ON, OR
 ABOUT, NOVEMBER 29, 1977, AND A COMPLAINT FILED ON FEBRUARY 15, 1978
 (ASST. SEC. EXH. 1).  NOTICE OF HEARING ISSUED JUNE 2, 1978, PURSUANT TO
 WHICH A HEARING WAS DULY HELD BEFORE THE UNDERSIGNED IN HARRISBURG,
 PENNSYLVANIA, ON AUGUST 22, 1978.
 
    THE ISSUE IN THIS CASE CONCERNS APPLICATION OF AN AGENCY REGULATION,
 UNILATERALLY ISSUED, TO MISCELLANEOUS FUNDS, SOMETIMES KNOWN AS
 RECREATION FUNDS.  FOR MANY YEARS, THESE FUNDS HAVE BEEN FUNDED BY A
 PERCENTAGE OF RECEIPTS FROM VENDING MACHINES LOCATED ON AGENCY PREMISES.
  FOR MORE THAN 25 YEARS CIVILIAN EMPLOYEES CONTROLLED THE USE OF THESE
 FUNDS WITH LITTLE AGENCY CONTROL AND WITH VARIABLE ACCOUNTABILITY.
 PENNSYLVANIA MILITARY REGULATION 37-3, PENNSYLVANIA AIR NATIONAL GUARD
 REGULATION 11-2, ISSUED OCTOBER 3, 1977, PROVIDED GUIDANCE AND POLICY
 REGARDING THE OPERATION OF SUCH FUNDS AND REQUIRED, INTER ALIA,
 APPROPRIATE RECORDS AND REGULAR FINANCIAL REPORTS TO THE MEMBERSHIP OF
 EACH FUND.  THE REGULATION WAS UNILATERALLY ISSUED BY THE ADJUTANT
 GENERAL, MAJOR GENERAL NICHOLAS P. KAFKALAS, PAARNG, AND RESPONDENT
 THEREAFTER REFUSED, UPON REQUEST, TO NEGOTIATE.
 
    ALL PARTIES WERE REPRESENTED BY COUNSEL, WERE AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO
 INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED HEREIN.  AT THE CLOSE
 OF THE HEARING, SEPTEMBER 25, 1978, WAS FIXED AS THE DATE FOR THE FILING
 OF BRIEFS AND COMPLAINANT HAS TIMELY FILED A BRIEF, RECEIVED BY THIS
 OFFICE ON SEPTEMBER 27, 1978, WHICH HAS BEEN CAREFULLY CONSIDERED.
 RESPONDENT HAS NOT FILED A POST-HEARING BRIEF BUT ITS POSITION, FULLY
 SET FORTH AT THE HEARING, HAS ALSO BEEN CAREFULLY CONSIDERED.  UPON THE
 BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES
 AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS:
 
                               FINDINGS /2/
 
    1.  MR. KENNETH DOHNER, WHO HAS BEEN EMPLOYED AT THE ARMY AVIATION
 SUPPORT FACILITY, ANNVILLE, PENNSYLVANIA, FOR ABOUT 4 1/2 YEARS, WAS
 CHAIRMAN OF THE RECREATION FUND AT THE ANNVILLE SUPPORT FACILITY FOR
 ABOUT A YEAR AND A HALF.  MR. DOHNER TESTIFIED THAT THE FT. INDIANTOWN
 GAP RECREATION FUND HAD HAD A CONSTITUTION (ALSO REFERRED TO AS
 "BY-LAWS") FOR ABOUT THREE YEARS.  THE CONSTITUTION HAD BEEN APPROVED BY
 COLONEL ROBERT A. GUENTERNER, CHIEF OF STAFF, APRIL 5, 1976 (COMP. EXH.
 2).  THE INDIANTOWN GAP RECREATION FUND CONSTITUTION PROVIDED, INTER
 ALIA, FOR AN ELECTED COMMITTEE TO ADMINISTER THE FUND;  A TREASURER TO
 DISBURSE ALL FUNDS, WITH COUNTERSIGNATURE OF ANOTHER MEMBER OF THE
 COMMITTEE, AND TO RENDER AN ACCOUNT OF ALL TRANSACTIONS TO THE COMMITTEE
 AND EMPLOYEES AT MEETINGS;  VOTE OF MEMBERSHIP TO APPROVE EXPENDITURES
 IN EXCESS OF $25.00;  AND A NON-VOTING ADVISOR REPRESENTING THE CHIEF OF
 STAFF.
 
    2.  IN OCTOBER, 1977, ABOUT A WEEK AFTER ITS ISSUANCE, MR. DOHNER
 OBTAINED A COPY OF PMR 37-3, PA ANGR 11-2 (COMP. EXH. 1).  THE FACILITY
 COMMANDER, MAJOR LEROY SNELBACKER INSISTED THAT THE BY-LAWS (OR
 CONSTITUTION) BE CHANGED SO THAT THE FACILITY COMMANDER COUNTERSIGN ALL
 CHECKS.  MR. DOHNER, CHAIRMAN, AND HIS COMMITTEE REFUSED TO MAKE THE
 CHANGE TO GIVE THE FACILITY COMMANDER AUTHORITY TO COUNTERSIGN ALL
 CHECKS AND MR. DOHNER RESIGNED FROM THE FUND COMMITTEE;  HOWEVER, MR.
 DOHNER TESTIFIED THAT A SCHEDULED PARTY HAD BEEN "VETOED".
 
    3.  MR. DOHNER TESTIFIED THAT HE HAD BEEN CONTACTED BY THE ARMY AIR
 SUPPORT FACILITY, WASHINGTON, PENNSYLVANIA, AND HAD BEEN INFORMED THAT
 THE FACILITY COMMANDER THERE ALSO WANTED TO CONTROL EXPENDITURES.
 
    4.  GEORGE E. TSHUDY, WHO HAS BEEN EMPLOYED AT THE COMBINED SPOT
 MAINTENANCE SHOP, INDIANTOWN GAP FOR 24 1/2 YEARS, IS PRESENTLY A MEMBER
 OF THE COMMITTEE OF THE RECREATION FUND AT THE SHOP.  THIS FUND HAS BEEN
 OPERATIONAL FOR APPROXIMATELY 30 YEARS.  THE COMMITTEE HAD CONSISTED OF
 THREE INDIVIDUALS APPOINTED BY THE SHOP SUPERVISORS.  THERE HAD BEEN NO
 BY-LAWS.  IN MARCH, 1978, THE SHOP SUPERINTENDENT, MR. READINGER, CALLED
 MR. TSHUDY TO HIS OFFICE AND ASKED HIM IF "WE COULD HAVE A COMMITTEE OF
 PEOPLE DRAW UP SOME BY-LAWS TO CONFORM WITH THE NEW REGULATIONS THAT
 CAME OUT IN OCTOBER." MR. TSHUDY TESTIFIED THAT:
 
    "SO I WAS IN FAVOR OF THE REGULATION BECAUSE IT SEEMED TO BE A GOOD
 THING AS FAR AS
 
    PROTECTION OF THE MONEY IS CONCERNED, AS FAR AS OUR PEOPLE WERE
 CONCERNED.
 
    "BEFORE THAT, YOU REALLY DIDN'T KNOW EXACTLY WHAT KIND OF MONEY WE
 HAD OR WHERE IT
 
    WENT." (TR. 28)
 
   *          *          *          *
 
 
    "I WOULD SAY IT IMPROVED IT TO THE POINT WHERE NOW THE MEMBERSHIP
 KNOWS THE BALANCE OF THE
 
    MONEY AND ANY EXPENDITURES TO THE FUND AND SO ON, WHICH WE HADN'T
 BEFORE.
 
    "Q.  HAS THE PERSONNEL WELCOMED THIS CHANGE?
 
    "A.  YES, SIR." (TR. 30-31).
 
    5.  MR. DOHNER TESTIFIED THAT THE ANNVILLE FUND PROBABLY HAD AN
 AVERAGE BALANCE OF AROUND $800.00;  THAT THE BALANCE MIGHT GO AS HIGH AS
 $2,000.00.  MR. TSHUDY TESTIFIED THAT THE INDIANTOWN GAP FUND HAD INCOME
 AROUND $100,00 PER MONTH AND, AT THE TIME OF THE HEARING, HAD A BALANCE
 OF ABOUT $1,200.00.  ALL FUNDS COME FROM A COMMISSION GRANTED BY THE
 COMPANIES WHICH HAVE VENDING MACHINES ON THE PREMISES OF RESPONDENT.
 
    6.  ON NOVEMBER 29, 1977, COUNSEL FOR COMPLAINANT MR. LEONARD SPEAR,
 WROTE GENERAL KAFKALAS, WHICH IS THE CHARGE IN THIS MATTER.  RESPONDENT
 REPLIED BY LETTER DATED DECEMBER 29, 1977, STATING, IN PART, AS FOLLOWS:
 
    "THE REGULATION TO WHICH YOU REFER DOES NOT IN ANY MANNER ESTABLISH A
 PROCEDURE OR IMPACT
 
    OVER WHICH THE ADJUTANT GENERAL IS OBLIGATED TO BARGAIN.  THIS DID
 NOT IN ANY MANNER CHANGE A
 
    WORKING CONDITION OF ANY TECHNICIAN.
 
   *          *          *          *
 
 
    "THIS ACTION IS A RESERVED MANAGEMENT RIGHT UNDER THE PROVISIONS OF
 SECTION 12(B) OF
 
    EXECUTIVE ORDER 11491, AS AMENDED.  IN ADDITION, IT IS AN INHERENT
 RESPONSIBILITY OF THE
 
    OFFICE OF THE ADJUTANT GENERAL TO INSURE PROPER ACCOUNTING AND
 DISBURSEMENT OF ALL FUNDS
 
    WITHIN UNITS OF THE PENNSYLVANIA NATIONAL GUARD AND THE DEPARTMENT OF
 MILITARY
 
    AFFAIRS.  . . . " (RES. EXH. 1)
 
                                CONCLUSIONS
 
    IT IS IMPORTANT TO BEAR IN MIND WHAT THIS CASE DOES NOT INVOLVE, AS
 WELL AS WHAT IT DOES INVOLVE.  FIRST, THIS CASE DOES NOT INVOLVE THE
 DEDICATION OF INCOME FROM VENDING MACHINES TO RECREATION FUNDS.  TO THE
 CONTRARY, THE DEDICATION OF SUCH INCOME OCCURRED LONG IN THE PAST AND
 HAS BEEN AN ACCEPTED PRACTICE FOR MORE THAN 25 YEARS.  SECOND, THIS CASE
 DOES NOT TURN ON WHETHER THE REGULATION WAS A GOOD REGULATION OR A BAD
 REGULATION, OR WHETHER IT ACHIEVED A DESIRABLE RESULT.  INDEED, THIS
 CASE DOES NOT EVEN TURN ON WHETHER THE REGULATION WAS INTENDED TO
 OPERATE IN THE MANNER SOME UNIT, OR FACILITY, COMMANDERS HAVE SOUGHT TO
 APPLY IT.
 
    WHAT THIS CASE DOES INVOLVE IS A PRACTICE OF VERY LONG STANDING--
 MORE THAN 25 YEARS-- WHEREBY INCOME FROM VENDING MACHINES HAS GONE INTO
 RECREATION FUNDS OPERATED BY EMPLOYEES AT EACH LOCATION THROUGHOUT THE
 STATE OF PENNSYLVANIA WITHOUT SIGNIFICANT AGENCY CONTROL.  FOR ALL OF
 THIS PERIOD, MONEY HAS BEEN SPENT FOR A VARIETY OF PURPOSES INCLUDED
 FLOWERS, PARTIES AND RECREATIONAL EQUIPMENT.  THE RECORD SHOWS THAT,
 WHILE THERE WAS A COMMITTEE TO ADMINISTER EACH FUND, SOME WERE ELECTED,
 SOME WERE APPOINTED BY CIVILIAN SUPERVISORS;  MOST HAD NO FORMAL BY-LAWS
 FOR A LONG PERIOD OF TIME, INDEED, THE ONLY CONSTITUTION SHOWN TO HAVE
 PRE-DATED THE REGULATION IN QUESTION HAD BEEN IN EXISTENCE ONLY ABOUT 3
 YEARS.
 
    PMR 37-3, PA ANGR 11-2 WAS ISSUED UNILATERALLY, WITHOUT PRIOR
 NOTIFICATION OR NEGOTIATION, ON OCTOBER 3, 1977.  THEREAFTER, RESPONDENT
 REFUSED TO NEGOTIATE, STATING:
 
    1. THE REGULATION DOES NOT ESTABLISH A PROCEDURE OR IMPACT OVER WHICH
 THE ADJUTANT GENERAL
 
    IS OBLIGATED TO BARGAIN.
 
    2.  THE REGULATION DID NOT CHANGE A WORKING CONDITION OF ANY
 TECHNICIAN.
 
    3.  THIS ACTION IS A RESERVED MANAGEMENT RIGHT UNDER SECTION 12(B) OF
 THE ORDER.
 
    4.  IN ADDITION, IT IS AN INHERENT RESPONSIBILITY OF THE ADJUTANT
 GENERAL.
 
    SECTION 11(A) OF THE ORDER, IN RELEVANT PART, PROVIDES AS FOLLOWS:
 
    "AN AGENCY AND A LABOR ORGANIZATION . . . SHALL MEET AT REASONABLE
 TIMES AND CONFER IN GOOD
 
    FAITH WITH RESPECT TO PERSONNEL POLICIES AND PRACTICES AND MATTERS
 AFFECTING WORKING
 
    CONDITIONS.  . . . "
 
    OBVIOUSLY, AS THE DECISIONS SHOW, IT IS NOT ALWAYS EASY TO DEFINE
 WITH PRECISION WHAT CONSTITUTES A PERSONNEL POLICY AND PRACTICE OR A
 MATTER AFFECTING WORKING CONDITIONS WITHIN THE MEANING OF SECTION 11(A)
 OF THE ORDER.  FOR EXAMPLE, IN DEPARTMENT OF DEFENSE, AIR NATIONAL
 GUARD, TEXAS AIR NATIONAL GUARD, CAMP MABRY, AUSTIN, TEXAS, A/SLMR NO.
 738, 6 A/SLMR 591(1976), THE ASSISTANT SECRETARY HELD THAT THE ISSUANCE
 OF A MEMORANDUM PROHIBITING THE CONSUMPTION OF ALCOHOLIC BEVERAGES,
 DESPITE A LONG PAST PRACTICE, DID NOT FALL WITHIN THE AMBIT OF SECTION
 11(A) OF THE ORDER.  THE ASSISTANT SECRETARY STATED:
 
    "SECTION 11(A) DESCRIBES THE LIMITED AREAS WHICH ARE SUBJECT TO THE
 BARGAINING OBLIGATION
 
    . . .  IN MY VIEW, IT IS NOT INTENDED TO EMBRACE EVERY ISSUE WHICH IS
 OF INTEREST TO AGENCIES
 
    AND EXCLUSIVE REPRESENTATIVES AND WHICH INDIRECTLY MAY AFFECT
 EMPLOYEES.  RATHER, SECTION
 
    11(A) ENCOMPASSES THOSE MATTERS WHICH MATERIALLY AFFECT, AND HAVE A
 SUBSTANTIAL IMPACT ON,
 
    PERSONNEL POLICIES, PRACTICES, AND GENERAL WORKING CONDITIONS.  I DO
 NOT CONSIDER A
 
    RESTRICTION ON THE CONSUMPTION OF ALCOHOL ON A GOVERNMENT FACILITY TO
 REACH SUCH A LEVEL OF
 
    IMPORTANCE." (6 A/SLMR AT 592)
 
    IT IS SIGNIFICANT THAT THE ASSISTANT SECRETARY IN FOOTNOTE 2, NOTED
 AS FOLLOWS:
 
    "2.  IT IS NOTED THAT THE AGENCY MEMORANDUM HEREIN DID NOT PROHIBIT
 OR OTHERWISE AFFECT THE
 
    PRACTICE OF HOLDING PARTIES AT AIR GUARD FACILITIES FOR PROMOTION,
 RETIREMENT, OR OTHER
 
    REASONS." (6 A/SLMR AT 592)
 
    IN DEPARTMENT OF THE NAVY, NORFOLK NAVAL SHIPYARD, A/SLMR NO. 805, 7
 A/SLMR 199(1977) THE ASSISTANT SECRETARY HELD THAT THE UNILATERAL
 ESTABLISHMENT OF A POLICY OF USING RADAR TO ENFORCE THE SPEED LIMITS
 WITHIN THE NORFOLK NAVAL SHIPYARD DID NOT VIOLATE SECTIONS 19(A)(1) AND
 (6) OF THE ORDER BECAUSE THE POLICY, OF USING RADAR, DID NOT AFFECT OR
 CHANGE EMPLOYEE TERMS AND CONDITIONS OF EMPLOYMENT AND DID NOT CHANGE
 ANY EXISTING TRAFFIC REGULATIONS.  THE ASSISTANT SECRETARY STATED, IN
 PART, AS FOLLOWS:
 
    "IT IS UNDISPUTED THAT THE RESPONDENT'S DECISION TO USE RADAR TO
 ENFORCE THE SPEED LIMITS
 
    IN THE NORFOLK NAVAL SHIPYARD DID NOT AFFECT OR CHANGE EMPLOYEE TERMS
 AND CONDITIONS OF
 
    EMPLOYMENT.  THUS . . . RESPONDENT'S ACTION DID NOT CHANGE
 INSTRUCTION 5560.1B.  NOR DID IT,
 
    IN ANY WAY, CHANGE THE TRAFFIC REGULATIONS . . . INCLUDING THE POSTED
 SPEED LIMITS AND THE
 
    PENALTIES ASSESSED FOR VIOLATION OF THE SPEED LIMITS.  UNDER THESE
 CIRCUMSTANCES, I FIND THAT
 
    THE RESPONDENT WAS NOT REQUIRED TO MEET AND CONFER WITH THE
 COMPLAINANT CONCERNING THE NEW
 
    METHOD OF ENFORCING THE EXISTING POLICY, AND THAT ITS FAILURE TO DO
 SO DID NOT CONSTITUTE A
 
    VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER." (7 A/SLMR AT
 200)
 
    IN WARNER ROBINS AIR LOGISTICS CENTER, ROBINS AIR FORCE BASE,
 GEORGIA, NO. 40-7581(CA), THE COMPLAINT ALLEGED THAT THE ACTIVITY
 VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY UNILATERALLY
 ESTABLISHING A PENALTY SYSTEM FOR DRIVERS RESPONSIBLE FOR TRAFFIC
 ACCIDENTS ON ACTIVITY PREMISES.  THE REGIONAL ADMINISTRATOR HAD
 DISMISSED THE COMPLAINT AND IN DENYING THE UNION'S REQUEST FOR REVIEW OF
 THE REGIONAL ADMINISTRATOR'S DISMISSAL OF THE COMPLAINT, THE ASSISTANT
 SECRETARY CITED AND RELIED UPON A/SLMR NO. 805 AND STATED:
 
    " . . . ALTHOUGH A UNILATERAL CHANGE WAS ALLEGED . . . THE EVIDENCE
 FAILS TO ESTABLISH THAT
 
    THE SUBJECT POLICY COMPLAINED OF EFFECTED ANY REAL CHANGE IN EMPLOYEE
 TERMS AND CONDITIONS OF
 
    EMPLOYMENT."
 
    THE UNION THEN PETITIONED THE COUNCIL FOR REVIEW AND THE COUNCIL,
 FLRC NO. 77A-83, 5 FLRC 981(1977), STATED, IN PART, AS FOLLOWS:
 
    "IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET THE
 REQUIREMENTS OF
 
    SECTION 2411.12 OF THE COUNCIL'S RULES;  THAT IS, YOU DO NOT ALLEGE,
 NOR DOES IT APPEAR, THAT
 
    THE ASSISTANT SECRETARY'S DECISION IS EITHER ARBITRARY AND CAPRICIOUS
 OR PRESENTS A MAJOR
 
    POLICY ISSUE.  . . . IN VIEW OF THE ASSISTANT SECRETARY'S FINDING
 THAT 'THE EVIDENCE FAILS TO
 
    ESTABLISH THAT THE POLICY COMPLAINED OF EFFECTED ANY REAL CHANGE IN
 EMPLOYEE TERMS AND
 
    CONDITIONS OF EMPLOYMENT,' IT DOES NOT APPEAR THAT . . . A
 NEGOTIABILITY DETERMINATION WAS
 
    NECESSARY IN ORDER FOR THE ASSISTANT SECRETARY TO RESOLVE THE UNFAIR
 LABOR PRACTICE MATTER
 
    BEFORE HIM . . . NOR IS ANY BASIS FOR COUNCIL REVIEW PRESENTED BY
 YOUR RELATED CONTENTION THAT
 
    THE ASSISTANT SECRETARY HAS ATTEMPTED TO ESTABLISH CRITERIA
 INCONSISTENT WITH THE ORDER
 
    . . . AGAIN NOTING THE ASSISTANT SECRETARY'S FINDING THAT THE
 EVIDENCE FAILED TO ESTABLISH ANY
 
    REAL CHANGE IN EMPLOYEE TERMS AND CONDITIONS OF EMPLOYMENT IN THE
 CIRCUMSTANCES OF THIS
 
    CASE." (5 FLCR AT 982)
 
    IN U.S. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, NEW
 ORLEANS DISTRICT, NEW ORLEANS, LOUISIANA, A/SLMR NO. 1034(1978), THE
 ASSISTANT SECRETARY ADOPTED THE FINDINGS AND CONCLUSIONS OF
 ADMINISTRATIVE LAW JUDGE STERNBURG THAT, WHERE THE AGENCY HAD GRANTED
 THE UNION THE PRIVILEGE OF USING AGENCY TYPEWRITERS AND/OR SECRETARIES
 FOR UNION BUSINESS SUCH PRIVILEGE BECAME AN ESTABLISHED TERM AND
 CONDITION OF EMPLOYMENT, AND UNILATERAL TERMINATION OF THE USE OF AGENCY
 EQUIPMENT AND PERSONNEL VIOLATED SECTIONS 19(A)(1) AND (6) OF THE ORDER.
  AS TO SECTION 12(B) OF THE ORDER, JUDGE STERNBURG STATED:
 
    " . . . HAD NOT THE RESPONDENT BY ITS ACTIONS PREVIOUSLY APPROVED THE
 UNION'S PRACTICE OF
 
    UTILIZING THE TYPEWRITERS AND SECRETARIES . . . I WOULD AGREE WITH
 RESPONDENT'S
 
    POSITION.  HOWEVER, SUCH IS NOT THE CASE.  AS NOTED ABOVE, ONCE THE
 PRIVILEGE
 
    HAS BEEN GRANTED, IT BECOMES A RIGHT, AND AS HERE A CONDITION OF
 EMPLOYMENT, WHICH CANNOT BE
 
    UNILATERALLY ALTERED." TO LIKE EFFECT, SEE, INTERNAL REVENUE SERVICE,
 SOUTHWEST REGION, APPELLATE BRANCH OFFICE, NEW ORLEANS, LOUISIANA AND
 NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 91, CASE NO.
 64-3843(CA) (AUGUST 10, 1978) (DECISION OF THE ADMINISTRATIVE LAW
 JUDGE).
 
    HAD PMR 37-3, PA ANGR 11-2 MERELY REQUIRED THAT EACH FUND ESTABLISH
 BY-LAWS AND ISSUE REGULAR FINANCIAL REPORTS TO ITS MEMBERS, IT MIGHT
 WELL BE ARGUED THAT THERE WAS NO CHANGE IN EXISTING TERMS AND CONDITIONS
 OF EMPLOYMENT AND, THEREFORE, NO REQUIREMENT TO MEET AND CONFER;  BUT
 THE REGULATION, PMR 37-3, PA ANGR 11-2, WENT MUCH FURTHER, INTER ALIA,
 BY GRANTING COMMANDERS AND SUPERVISORS RESPONSIBILITY FOR IMPLEMENTING
 THE POLICIES AND PROCEDURES PRESCRIBED, PURSUANT TO WHICH UNIT
 COMMANDERS SOUGHT TO CONTROL EXPENDITURES.  REMOVAL OF CONTROL OF
 EXPENDITURES FROM THE COMMITTEES AND/OR THE MEMBERS OF EACH FUND, IN
 WHICH SUCH CONTROL HAD EXCLUSIVELY RESTED FOR MORE THAN 25 YEARS, WAS A
 CHANGE OF AN ESTABLISHED CONDITION OF EMPLOYMENT.  INDEED, THE RECORD
 SHOWS THAT RESPONDENT, THROUGH ITS UNIT COMMANDERS, COMPELLED THE
 CANCELLATION OF PARTIES, FUNDED IN WHOLE OR IN PART BY SUCH FUNDS, WHICH
 THE MEMBERS OF AT LEAST ONE FUND HAD APPROVED IN ACCORDANCE WITH
 ESTABLISHED PAST PRACTICE.  AS IN PART BY SUCH FUNDS, WHICH THE MEMBERS
 OF AT LEAST ONE FUND HAD APPROVED IN ACCORDANCE WITH ESTABLISHED PAST
 PRACTICE.  AS IN THE NEW ORLEANS DISTRICT CASE, SUPRA, THE PRIVILEGE OF
 USING SUCH FUNDS FOR PURPOSES APPROVED BY THE COMMITTEES AND/OR THE
 MEMBERS, ONCE GRANTED BECAME A RIGHT AND A CONDITION OF EMPLOYMENT WHICH
 CANNOT BE UNILATERALLY ALTERED.  RESPONDENT VIOLATED SECTION 19(A)(1)
 AND (6) OF THE ORDER BY ITS UNILATERAL ISSUANCE OF THE REGULATION AND BY
 ITS REFUSAL TO BARGAIN, UPON COMPLAINANT'S REQUEST FOR BARGAINING, WHEN
 COMPLAINANT LEARNED THAT SUCH REGULATION HAD BEEN ISSUED UNILATERALLY.
 
                             RECOMMENDED ORDER
 
    PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, 29
 C.F.R. SECTION 203.26(B), AND SECTION 2400.2 OF THE TRANSITION RULES AND
 REGULATIONS (5 C.F.R.  2400.2, FED.REG.VOL. 44, NO. 1, JANUARY 2, 1979,
 P. 7), THE AUTHORITY HEREBY ORDERS THAT THE PENNSYLVANIA ARMY AND AIR
 NATIONAL GUARD SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    A) UNILATERALLY ALTERING OR CHANGING THE ESTABLISHED PAST PRACTICE OF
 ALLOWING COMMITTEES
 
    OF EMPLOYEES DULY AUTHORIZED TO ADMINISTER MISCELLANEOUS FUNDS,
 GENERALLY KNOWN AS RECREATION
 
    FUNDS, FUNDED BY RECEIPTS FROM VENDING MACHINES AND/OR THE EMPLOYEE
 MEMBERS OF EACH SUCH FUND,
 
    AS THE CASE MAY BE, TO RECEIVE AND TO EXPEND SUCH FUNDS IN THE SOLE
 DISCRETION OF SUCH
 
    COMMITTEES AND/OR THE MEMBERS OF EACH SUCH FUND, WITHOUT FIRST
 BARGAINING IN GOOD FAITH WITH
 
    THE ASSOCIATION OF CIVILIAN TECHNICIANS, THE EXCLUSIVE REPRESENTATIVE
 OF ITS EMPLOYEES, OR ANY
 
    OTHER EXCLUSIVE REPRESENTATIVE.
 
    B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN
 
    THE EXERCISE OF THEIR RIGHTS ACCORDED BY EXECUTIVE ORDER 11491, AS
 AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE ORDER:
 
    A) WITHDRAW PENNSYLVANIA MILITARY REGULATION NO. 37-3, PENNSYLVANIA
 AIR NATIONAL GUARD
 
    REGULATION NUMBER 11-2, DATED OCTOBER 3, 1977, SO FAR AS IT APPLIES
 TO MISCELLANEOUS FUNDS,
 
    GENERALLY KNOWN AS RECREATION FUNDS, FINANCED BY RECEIPTS FROM
 VENDING MACHINES LOCATED ON
 
    RESPONDENT'S PREMISES.
 
    B) POST AT EACH FACILITY COPIES OF THE ATTACHED NOTICE MARKED
 "APPENDIX" ON FORMS TO BE
 
    FURNISHED BY THE AUTHORITY.  UPON RECEIPT OF SUCH FORMS THEY SHALL BE
 SIGNED BY THE ADJUTANT
 
    GENERAL, PAARNG, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
 CONSECUTIVE DAYS THEREAFTER,
 
    IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES
 WHERE NOTICES TO ALL
 
    CIVILIAN TECHNICIANS ARE CUSTOMARILY POSTED.  THE ADJUTANT GENERAL
 SHALL TAKE REASONABLE STEPS
 
    TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY
 ANY OTHER MATERIAL.
 
    C) PURSUANT TO 29 C.F.R. SECTION 203.27 AND SECTION 2400.2 OF THE
 TRANSITION RULES AND
 
    REGULATIONS (5 C.F.R. 2400.2, FED.REG.VOL. 44, NO. 1, JANUARY 2,
 1979, P. 7) NOTIFY THE
 
    AUTHORITY IN WRITING WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO
 WHAT STEPS HAVE BEEN
 
    TAKEN TO COMPLY HEREWITH.
 
                            WILLIAM B. DEVANEY
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JANUARY 9, 1979
 
    WASHINGTON, D.C.
 
    WBD/MML
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
           PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 
            RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
 
               POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT UNILATERALLY ALTER OR CHANGE THE ESTABLISHED PAST
 PRACTICE OF ALLOWING COMMITTEES OF EMPLOYEES DULY AUTHORIZED TO
 ADMINISTER RECREATION FUNDS AND/OR THE EMPLOYEE MEMBERS OF EACH SUCH
 FUND, AS THE CASE MAY BE, TO RECEIVE AND TO DISBURSE SUCH FUNDS IN THE
 SOLE DISCRETION OF SUCH COMMITTEES AND/OR THE MEMBERS OF EACH FUND,
 WITHOUT FIRST BARGAINING IN GOOD FAITH WITH THE ASSOCIATION OF CIVILIAN
 TECHNICIANS, THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, OR ANY OTHER
 EXCLUSIVE REPRESENTATIVE.
 
    WE WILL WITHDRAW PENNSYLVANIA MILITARY REGULATION NUMBER 37-3,
 PENNSYLVANIA AIR NATIONAL GUARD REGULATION NUMBER 11-2, DATED OCTOBER 3,
 1977, INSOFAR AS IT APPLIES TO RECREATION FUNDS FINANCED BY RECEIPTS
 FROM VENDING MACHINES LOCATED ON OUR PREMISES.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
                                 ACTIVITY
 
    DATED:  BY:
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, WASHINGTON REGIONAL OFFICE, FEDERAL LABOR RELATIONS
 AUTHORITY, WHOSE ADDRESS IS ROOM 509, VANGUARD BLDG, 1111 - 20TH STREET,
 N.W., WASHINGTON, D.C.  20036.
 
    /1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    /2/ THE REGIONAL ADMINISTRATOR HAD DENIED COMPLAINANT'S REQUEST FOR
 THE APPEARANCE OF MR. DAVID T. HOWELL, STATE CHAIRMAN OF THE
 PENNSYLVANIA COUNCIL, ASSOCIATION OF CIVILIAN TECHNICIANS.  AT THE
 COMMENCEMENT OF THE HEARING, COMPLAINANT RENEWED THIS REQUEST AND THE
 UNDERSIGNED DENIED THE REQUEST FOR THE REASON THAT SEC. 206.7 OF THE
 REGULATIONS CONTEMPLATES ONLY REQUESTS FOR APPEARANCE OF WITNESSES NOT
 OFFICIALS OF A LABOR ORGANIZATION PRESENT SOLELY IN THEIR CAPACITY AS AN
 OFFICER OF THE EXCLUSIVE REPRESENTATIVE.  SOCIAL SECURITY
 ADMINISTRATION, BUREAU OF HEARINGS AND APPEALS, NORTHEASTERN PROGRAM
 SERVICE CENTER, FLUSHING, NEW YORK, A/SLMR NO.  1036(1978) DEPARTMENT OF
 THE TREASURY, INTERNAL REVENUE SERVICE AND BROOKHAVEN SERVICE CENTER,
 A/SLMR NO. 1125(1978) MR. HOWELL, ALTHOUGH PRESENT, WAS NOT CALLED AS A
 WITNESS.
 
    COMPLAINANT CALLED AS WITNESSES MR. KENNETH DOHNER AND MR. GEORGE
 TSHUDY BUT HAD MADE NO REQUEST FOR APPEARANCE OF WITNESSES, PURSUANT TO
 SEC. 206.7(B), AS TO EITHER AND SHOWED NO GOOD CAUSE FOR HAVING FAILED
 TO DO SO.  BOTH WITNESSES WERE KNOWN TO COMPLAINANT AND BOTH WERE CALLED
 IN SUPPORT OF COMPLAINANT'S CASE IN CHIEF.  ACCORDINGLY, THE UNDERSIGNED
 DENIED COMPLAINANT'S REQUEST THAT THESE WITNESSES BE ORDERED PRODUCED ON
 OFFICIAL TIME.  BELLINGHAM FLIGHT SERVICE STATION, FEDERAL AVIATION
 ADMINISTRATION, N.W. REGION, DEPARTMENT OF TRANSPORTATION BEL