Illinois Air National Guard, 182nd Tactical Air Support Group, Springfield, Illinois (Respondent) and Illinois Air Chapter, Association of Civilian Technicians, Inc. (ACT) (Complainant)

 



[ v01 p445 ]
01:0445(54)CA
The decision of the Authority follows:


 1 FLRA No. 54
 
 ILLINOIS AIR NATIONAL GUARD,
 182ND TACTICAL AIR SUPPORT GROUP,
 SPRINGFIELD, ILLINOIS
 Respondent
 
 and
 
 ILLINOIS AIR CHAPTER, ASSOCIATION
 OF CIVILIAN TECHNICIANS, INC. (ACT)
 Complainant
 
                                            Assistant Secretary
                                            Case No. 50-17054(CA)
 
                            DECISION AND ORDER
 
    ON JANUARY 30, 1979, ADMINISTRATIVE LAW JUDGE RHEA M. BURROW ISSUED
 HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
 FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
 PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT
 BE DISMISSED IN ITS ENTIRETY.  THE COMPLAINANT FILED EXCEPTIONS WITH
 RESPECT 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, INCLUDING THE EXCEPTIONS FILED BY THE COMPLAINANT, THE
 FEDERAL LABOR RELATIONS AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW
 JUDGE'S FINDINGS, CONCLUSIONS, /1/ AND RECOMMENDATION.  /2/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 50-17054(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JUNE 11, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    APPEARANCES:
 
    MAJOR DONALD R. BEEDLE
 
    LABOR RELATIONS SPECIALIST
 
    MILITARY DEPARTMENT OF ILLINOIS
 
    1301 NORTH MCARTHUR BOULEVARD
 
    CAMP LINCOLN
 
    SPRINGFIELD, ILLINOIS 62702
 
                            FOR THE RESPONDENT
 
    THOMAS J. OWSINSKI
 
    NATIONAL FIELD REPRESENTATIVE
 
    ASSOCIATION OF CIVILIAN TECHNICIANS
 
    RD-4, BOX 4128
 
    POTTSVILLE, PENNSYLVANIA 17901
 
                            FOR THE COMPLAINANT
 
    BEFORE:  RHEA M. BURROW
 
                         ADMINISTRATIVE LAW JUDGE
 
                           CASE NO. 50-17054(CA)
 
                      RECOMMENDED DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THIS IS AN UNFAIR LABOR PRACTICE PROCEEDING IN WHICH A FORMAL HEARING
 OF RECORD WAS HELD ON NOVEMBER 14, 1978 IN SPRINGFIELD, ILLINOIS
 PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED, (HEREINAFTER REFERRED TO
 AS THE ORDER).
 
    ON OR ABOUT MAY 14, 1976 A NEGOTIATED AGREEMENT WAS REACHED BETWEEN
 THE ADJUTANT GENERAL OF ILLINOIS AND ILLINOIS AIR CHAPTER, ASSOCIATION
 OF CIVILIAN TECHNICIANS, INCORPORATED.  THE AGREEMENT PROVIDED:  "THIS
 AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT FOR TWO (2) YEARS FROM
 THE DATE APPROVED BY THE NATIONAL GUARD BUREAU.  ON WRITTEN REQUEST OF
 EITHER PARTY TO THE OTHER, THE PARTIES SHALL MEET TO COMMENCE
 NEGOTIATIONS OR A NEW AGREEMENT NOT LATER THAN THE SIXTIETH DAY NOR
 EARLIER THAN THE NINETIETH DAY PRIOR TO THE EXPIRATION DATE OF THIS
 AGREEMENT.
 
    IN A COMPLAINT FILED ON JULY 17, 1978, THE RESPONDENT WAS CHARGED
 WITH HAVING VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER ON MAY 12,
 1978 AT ITS ILLINOIS AIR NATIONAL GUARD, 182ND AIR GROUP STATION LOCATED
 AT THE GREATER PEORIA AIRPORT, PEORIA, ILLINOIS.  IN A LETTER ON BEHALF
 OF THE AIR COMMANDER DATED MAY 12, 1978 AND ADDRESSED TO AFFECTED
 TECHNICIANS AND SUPERVISORS, THE RESPONDENT DIRECTED THAT:  "EFFECTIVE
 MONDAY, 15 MAY 1978 SEASONAL MILITARY CLOTHING, SUCH AS PARKAS AND
 CWU-7P JACKETS, WILL NOT BE WORN WITH THE CIVILIAN UNIFORM." PURSUANT TO
 A REQUEST BY COMPLAINANT THE RESPONDENT IN A LETTER DATED JUNE 16, 1978
 ADDRESSED TO AFFECTED TECHNICIANS AND SUPERVISORS, RESCINDED THE MAY 12,
 1978 LETTER OR DIRECTIVE STATING:  "1.  182ND TAS GP/ACR LTR, 12 MAY
 1978, SUBJECT AS ABOVE, /3/ IS HEREBY RESCINDED.  2.  ALL SUPERVISORS
 WILL INSURE TECHNICIANS UNDER THEIR SUPERVISION WHO ARE AUTHORIZED TO
 WEAR THE STANDARD CIVILIAN WORK ATTIRE ARE MADE AWARE OF THE RECISION OF
 THE ABOVE MENTIONED LETTER." THE RESPONSE APPARENTLY FAILED TO SATISFY
 THE COMPLAINANT AND THE UNFAIR LABOR PRACTICE COMPLAINT WAS FILED.  THE
 ISSUE RAISED IS, IN EFFECT, WHETHER THE RESPONDENT'S UNILATERAL ACTION
 IN CHANGING EMPLOYEE WORKING CONDITIONS AT THE PEORIA, ILLINOIS
 INSTALLATION CONCERNING THE PROHIBITION OF WEARING SEASONAL MILITARY
 CLOTHING WITH THE CIVILIAN UNIFORM CONSTITUTED A VIOLATION OF SECTION
 19(A)(1) AND (6) OF THE ORDER.
 
    UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING THE EVIDENCE ADDUCED,
 THE BRIEFS SUBMITTED BY THE PARTIES AND MY OBSERVATION OF THE WITNESSES
 AND EVALUATION OF THEIR CREDULITY, I MAKE THE FOLLOWING FINDINGS,
 CONCLUSIONS AND RECOMMENDATION.
 
                             FINDINGS OF FACT
 
    1.  THE COMPLAINANT IS, AND WAS, AT ALL TIMES MATERIAL HEREIN THE
 EXCLUSIVE BARGAINING REPRESENTATIVE FOR ALL OF THE RESPONDENT'S
 NON-SUPERVISORY AND NON-MANAGERIAL EMPLOYEES FROM MAY 14, 1976 TO MAY
 15, 1978.  SINCE MAY 14, 1978, THE RESPONDENT IS RECOGNIZING COMPLAINANT
 AS THE EXCLUSIVE REPRESENTATIVE OF AFORESAID EMPLOYEES AND HONORING THE
 COMMITMENTS IN THE AGREEMENT WHICH EXPIRED ON MAY 14, 1978 EXCEPT
 INSOFAR AS WEARING OF SEASONAL MILITARY CLOTHING MAY HAVE BEEN
 PROSCRIBED FOR THE BRIEF PERIOD FROM MAY 15 TO JUNE 16, 1978.
 
    2.  THE COLLECTIVE BARGAINING AGREEMENT PROMULGATED MAY 14, 1976 TO
 CONTINUE IN FULL FORCE AND EFFECT FOR TWO YEARS CONTAINED PROVISIONS IN
 ARTICLE VII STATING:
 
    "SECTION 1.  THE EMPLOYER IS RESPONSIBLE FOR PROVIDING AND
 MAINTAINING SAFE AND HEALTHY
 
    WORKING CONDITIONS AND FOR PROVIDING REQUIRED PROTECTIVE EQUIPMENT."
 
    "SECTION 2.  KNOWN SAFETY RULES, PUBLISHED IN APPROPRIATE AIR FORCE
 PUBLICATIONS, COVERING
 
    SUCH ITEMS AS CHILL FACTOR, PROTECTIVE CLOTHING AND SAFETY DEVICES,
 SHALL STRICTLY BE ADHERED
 
    TO."
 
    "SECTION 7.  EMPLOYEES ARE RESPONSIBLE FOR OBSERVING ALL PERTINENT
 SAFETY REGULATIONS AND
 
    FOR UTILIZING ALL SAFETY EQUIPMENT PROVIDED."
 
    ARTICLE I OF THE AGREEMENT PROVIDED THAT THE EMPLOYER AND THE UNION
 AGREE SUBJECT TO THE FOLLOWING:  "SECTION 1.  IN THE ADMINISTRATION OF
 ALL MATTERS COVERED BY THE AGREEMENT, OFFICIALS AND EMPLOYEES ARE
 GOVERNED BY EXISTING AND FUTURE LAWS AND THE REGULATIONS OF APPROPRIATE
 AUTHORITIES, INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL
 MANUALS BY PUBLISHED AGENCY POLICIES AND REGULATIONS IN EXISTENCE AT THE
 TIME THE AGREEMENT WAS APPROVED AND BY SUBSEQUENTLY PUBLISHED AGENCY
 POLICIES AND REGULATIONS REQUIRED BY LAW OR BY THE REGULATIONS OF
 APPROPRIATE AUTHORITIES, OR AUTHORIZED BY THE TERMS OF A CONTROLLING
 AGREEMENT AT A HIGHER AGENCY LEVEL." MANAGEMENT RIGHTS OUTLINED IN
 SECTION 12(B) OF THE ORDER AS WELL AS THE PROVISIONS OF SECTION 12(C)
 WERE INCORPORATED IN THE AGREEMENT.
 
    ARTICLE XVIII, SECTION 1(B) OF THE AGREEMENT PROVIDES IN PART:
 "THERE WILL BE NO MIXTURE OF MILITARY CLOTHING AUTHORIZED IN CONJUNCTION
 WITH CIVILIAN ATTIRE."
 
    BEGINNING ABOUT MID-MARCH 1978 /4/ THE PARTIES COMMENCED THEIR
 NEGOTIATIONS ON A NEW COLLECTIVE BARGAINING AGREEMENT.  ONE OF THE ITEMS
 DISCUSSED WAS THE WEARING OF SEASONAL MILITARY CLOTHING.
 
    3.  WHEN IT BECAME APPARENT THAT A NEW AGREEMENT COULD NOT BE REACHED
 BEFORE EXPIRATION OF THE CONTRACT ON MAY 14, 1978 A MEETING WAS
 SCHEDULED AND HELD BY THE RESPONDENT WITH THE COMPLAINANT ON MAY 12,
 1978.
 
    4.  AT THE AFORESAID MAY 12, 1978 MEETING THE RESPONDENT ANNOUNCED
 ITS INTENTION TO HONOR ITS OBLIGATIONS TO MEET AND CONFER ON PERSONNEL
 POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS AFTER
 EXPIRATION OF THE CURRENT BARGAINING AGREEMENT BUT MAINTAINED THAT
 INSOFAR AS WEARING OF SEASONAL MILITARY CLOTHING WITH CIVILIAN ATTIRE
 WAS CONCERNED NEGOTIATIONS ON THIS SPECIFIC PROGRAM WOULD NOT BE
 APPROPRIATE UNDER CURRENT DEPARTMENT OF THE AIR FORCE REGULATIONS.  ON
 THE SAME DAY THE FOLLOWING PUBLICATION WAS ISSUED:
 
    "SUBJECT TO WEAR OF SEASONAL MILITARY CLOTHING AFFECTED TECHNICIANS
 AND
 
    SUPERVISORS.  EFFECTIVE MONDAY, 15 MAY 1978 SEASONAL MILITARY
 CLOTHING, SUCH AS PARKAS AND
 
    CWU-7P JACKETS, WILL NOT BE WORN WITH THE CIVILIAN UNIFORM."
 
    5.  THE COMPLAINANT LATER IN MAY 1978 REQUESTED A MEETING TO DISCUSS
 IN MORE DETAIL CERTAIN PROVISIONS OF AIR FORCE MANUAL 67-1 RELATING TO
 THE NON-MIXING OF THE CIVILIAN WORK ATTIRE WITH THE MILITARY UNIFORM.
 /5/ THE MEETING WAS SCHEDULED AND HELD ON MAY 19, 1979 AT WHICH TIME
 COMPLAINANT ASKED THE RESPONDENT AIR COMMANDER TO RESCIND THE MAY 12,
 1978 LETTER.  THE MAY 12, 1978 LETTER, PURSUANT TO REQUEST WAS RESCINDED
 ON JUNE 16, 1978.  THE LETTER ENTITLED "WEAR OF SEASONAL MILITARY
 CLOTHING" WAS ADDRESSED TO AFFECTED TECHNICIANS AND SUPERVISORS AND
 STATED:
 
    "1. 182 TAS GP 1 ACR LTR, 12 MAY 1978, SUBJECT AS ABOVE, IS HEREBY
 RESCINDED."
 
    "2.  ALL SUPERVISORS WILL INSURE TECHNICIANS UNDER THEIR SUPERVISION
 WHO ARE AUTHORIZED TO
 
    WEAR THE STANDARD CIVILIAN WORK ATTIRE ARE MADE AWARE OF THE RECISION
 OF THE ABOVE MENTIONED
 
    LETTER."
 
    6.  THE PERIOD FOR WEARING SEASONAL MILITARY CLOTHING SUCH AS PARKAS
 AND CWU-7P JACKETS WAS OVER IN PEORIA, ILLINOIS AT THE TIME OF THE MAY
 12, 1978 LETTER.  THE RECORD DOES NOT ESTABLISH THAT THERE WAS A REQUEST
 BY ANY AFFECTED EMPLOYEE FOR ISSUANCE OF SUCH EQUIPMENT AFTER MAY 12 OR
 BEFORE JUNE 16, 1978 WHEN THE MAY 12 LETTER WAS RESCINDED.
 
    7.  THE DOCUMENTARY EXHIBITS INCLUDING THE NEGOTIATED AGREEMENT;  AFM
 67-1 VOL. IV, PART ONE, 20 MAR. 78 (AMENDMENT 24) AND AFR 127-101;  /6/
 TOGETHER WITH EXHIBITS 1, 2 AND 3 BY THE RESPONDENT WHEN COUPLED WITH
 THE TESTIMONY OF COLONEL KENNETH PETERSON, MAJOR KEITH D. COLGAN, MAJOR
 MICHAEL J. MEEHAN PRESENT PERSUASIVE EVIDENCE OF CHANGE OR CLARIFICATION
 OF POLICY AND REGULATIONS AS TO WEARING OF SEASONAL MILITARY CLOTHING
 SUCH AS THE PARKA AND CWU-7P JACKET AND SUCH AS TO AFFECT NATIONAL GUARD
 PERSONNEL, /7/ AND CIVILIAN EMPLOYEES IN THE PEORIA, ILLINOIS AREA AND
 ELSEWHERE.
 
    8.  THE UNREFUTED TESTIMONY OF MAJOR MICHAEL J. MEEHAN WAS THAT HE
 WAS THE RESPONDENT'S CHIEF NEGOTIATOR FOR CURRENT NEGOTIATIONS FOR THE
 NEW CONTRACT ON THE BASE AND THE INTERMIX OR ALLOWANCE OF THE WEARING OF
 CLIMATIC TYPE ATTIRE OR SEASONAL MILITARY CLOTHING SUCH AS PARKAS AND
 CWU-7P JACKETS HAD BEEN BROUGHT UP SEVERAL TIMES FOR DISCUSSION AT THE
 BARGAINING TABLE BETWEEN MID-MARCH 1978 AND MAY 12, 1978 AND SUBSEQUENT
 TO JUNE 16, 1978.  THE COMPLAINANT BY REASON OF NOTICE GIVEN TO ITS
 REPRESENTATIVES AT THE BARGAINING SESSIONS ON A NEW AGREEMENT WERE AWARE
 OF THE RESPONDENT'S POSITION AS TO ISSUANCE AND WEARING OF SEASONAL
 MILITARY EQUIPMENT INCLUDING PARKAS AND CWU-7P JACKETS FOR A FEW MONTHS
 BEFORE THE NOTICE ISSUED IN THE MAY 12, 1978 LETTER.
 
    9.  FINAL RESOLUTION OF NEGOTIATIONS AS TO WEARING OF SEASONAL
 MILITARY WITH CIVILIAN ATTIRE HAS NOT BEEN RESOLVED BY THE PARTIES AND
 IMPASSE ASSISTANCE HAS BEEN REQUESTED ON THIS AND OTHER ISSUES.
 
                        DISCUSSION AND CONCLUSIONS
 
    THE COMPLAINANT IN ITS BRIEF STATES THAT THE RESPONDENT . . .
 "UNILATERALLY AND WITHOUT REASONABLE NOTIFICATION, CHANGED TERMS AND
 CONDITIONS OF EMPLOYMENT IN A MANNER INTENDED TO INFLICT DRAMATIC AS
 WELL AS CONSEQUENTIAL CHANGES NOT ONLY UPON THE BARGAINING UNIT
 NEGOTIATIONS, BUT ALSO THE GENERAL MEMBERSHIP.  THIS WAS ACCOMPLISHED BY
 THE ISSUANCE OF A BASE POLICY LETTER ON MAY 12, 1978, INDICATING TO ALL
 PERSONNEL THAT CERTAIN PROTECTIVE SEASONAL CLOTHING ISSUED THROUGH THE
 RESPONDENT'S SUPPLY CHANNELS, IN THE FUTURE, WOULD NOT BE WORN WITH THE
 EMPLOYEE'S NEGOTIATED CIVILIAN ATTIRE." THIS WAS ALLEGED TO CONSTITUTE A
 VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER.
 
    THE RESPONDENT URGES THAT COMPLAINANT HAS NEVER PRESENTED A
 REASONABLE BASIS FOR ITS COMPLAINT AND IT SHOULD BE DISMISSED;  AND,
 THAT THE ACTIONS TAKEN BY THE EMPLOYER (RESPONDENT) WERE REASONABLE AND
 PROPER AND NOT IN VIOLATION OF SECTIONS 19(A)(1) AND (6) OF THE ORDER.
 IN THE SUMMARY TO ITS BRIEF IT STATED:
 
    "A.  AGENCY REGULATIONS WERE HELD INOPERATIVE UNTIL CONTRACT
 EXPIRATION, THE TIME WHEN THEY
 
    SHOULD BECOME EFFECTIVE."
 
    "B.  THE UNION WAS WELL AWARE OF THESE NEW REGULATIONS BY EXPOSURE
 DURING NEGOTIATIONS AND
 
    AS NORMAL DUTY REQUIREMENTS . . . . "
 
    "C.  THERE WAS ABSOLUTELY NO INTERRUPTION IN BARGAINING OR THE
 SUBJECT OF 'SEASONAL
 
    MILITARY CLOTHING'."
 
    "D.  THE EMPLOYERS RETURN TO 'STATUS QUO' AS REQUESTED BY THE UNION
 SHOULD RENDER
 
    ABSOLUTELY 'MOOT' ANY CONSIDERATION OF FINDING OF A VIOLATION."
 
    "E.  THE UNION IN NEGOTIATIONS ON 13 AND 14 SEPTEMBER 1978 CONCEDED
 AND AGREED AS FOLLOWS:
 
    MILITARY GARMENTS SHALL NOT BE MIXED WITH CIVILIAN CLOTHING.  FOR
 WEATHER CALLING FOR THE
 
    WEAR OF PARKAS, EMPLOYEES IN CIVILIAN ATTIRE MAY WEAR ANY PARKA OR
 APPROPRIATE CLIMATIC
 
    PROTECTIVE GARMENT OF THEIR CHOICE." /8/
 
    "INDEED, THE COMPLAINANT HAS NEVER SHOWN HOW THE EMPLOYER REFUSED TO
 CONSULT, CONFER, OR NEGOTIATE WITH A LABOR ORGANIZATION AS REQUIRED BY
 THE EXECUTIVE ORDER NOR HAVE THEY SHOWN HOW THE EMPLOYER INTERFERED
 WITH, RESTRAINED, OR COERCED ANY EMPLOYEE IN THE EXERCISE OF RIGHTS
 ASSURED BY THE ORDER.
 
    SECTION 19(A) OF THE ORDER PROVIDES IN PERTINENT PART:
 
    SECTION 19. UNFAIR LABOR PRACTICES.  (A) AGENCY MANAGEMENT SHALL
 NOT-- (1) INTERFERE WITH,
 
    RESTRAIN OR COERCE AN EMPLOYEE IN THE EXERCISE OF THE RIGHTS ASSURED
 BY THIS ORDER;
 
   *          *          *          *
 
 
    (6) REFUSE TO CONSULT, CONFER, OR NEGOTIATE WITH A LABOR ORGANIZATION
 AS REQUIRED BY THIS
 
    ORDER.
 
    SECTION 11 OF THE ORDER RELATES TO NEGOTIATION OF AGREEMENTS AND
 PROVIDES IN PART THAT (A) AN AGENCY AND A LABOR ORGANIZATION THAT HAS
 BEEN ACCORDED EXCLUSIVE RECOGNITION, THROUGH APPROPRIATE
 REPRESENTATIVES, SHALL MEET AT REASONABLE TIMES AND CONFER IN GOOD FAITH
 WITH RESPECT TO PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING
 WORKING CONDITIONS, SO FAR AS MAY BE APPROPRIATE UNDER APPLICABLE LAWS
 AND REGULATIONS, INCLUDING POLICIES SET FORTH IN FEDERAL PERSONNEL
 MANUAL;  PUBLISHED AGENCY POLICIES AND REGULATIONS FOR WHICH A
 COMPELLING NEED EXISTS UNDER CRITERIA ESTABLISHED BY THE FEDERAL LABOR
 RELATIONS COUNCIL AND WHICH ARE ISSUED AT THE AGENCY HEADQUARTERS LEVEL
 OF A PRIMARY NATIONAL SUBDIVISION;  A NATIONAL OR OTHER CONTROLLING
 AGREEMENT AT A HIGHER LEVEL IN THE AGENCY;  AND THIS ORDER.
 
    SECTION 12(A) OF THE ORDER PROVIDES THAT IN THE ADMINISTRATION OF ALL
 MATTERS COVERED BY THE AGREEMENT, OFFICIALS AND EMPLOYEES ARE GOVERNED
 BY EXISTING OR FUTURE LAWS AND THE REGULATIONS OF APPROPRIATE
 AUTHORITIES, INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL
 MANUAL;  BY PUBLISHED AGENCY POLICIES AND REGULATIONS IN EXISTENCE AT
 THE TIME OF THE AGREEMENT WAS APPROVED;  AND BY SUBSEQUENTLY PUBLISHED
 AGENCY POLICIES AND REGULATIONS REQUIRED BY LAW OR BY THE REGULATIONS OF
 APPROPRIATE AUTHORITIES, OR AUTHORIZED BY THE TERMS OF A CONTROLLING
 AGREEMENT AT A HIGHER AGENCY LEVEL.
 
    THE FEDERAL LABOR RELATIONS COUNCIL RECENTLY CONSOLIDATED AND
 CONSIDERED TWO SEPARATE DECISIONS OF THE ASSISTANT SECRETARY INVOLVING
 UNFAIR LABOR PRACTICE COMPLAINTS FILED BY (1) THE NATIONAL TREASURY
 EMPLOYEES UNION ON BEHALF OF ITSELF AND CERTAIN OF ITS CHAPTERS, A/SLMR
 NO. 806, FLRC NO. 77A-40, AND BY THE INTERNAL REVENUE SERVICE (THE
 AGENCY) AND CERTAIN OF ITS ACTIVITIES, A/SLMR NO. 859 AND FLRC NO.
 77A-92, EACH ALLEGING VIOLATIONS OF SECTION 19(A)(1) AND (6) OF THE
 ORDER.
 
    IN ITS OPINION THE COUNCIL FULLY CONSIDERED THE MATTER AND SUMMARIZED
 THE PRINCIPLES DISCUSSED THEREIN AS FOLLOWS:
 
    UPON THE EXPIRATION OF A NEGOTIATED AGREEMENT, EXISTING PERSONNEL
 POLICIES AND PRACTICES
 
    AND MATTERS AFFECTING WORKING CONDITIONS, WHETHER OR NOT THEY ARE
 INCLUDED IN A NEGOTIATED
 
    AGREEMENT, CONTINUE AS ESTABLISHED ABSENT AN EXPRESSED AGREEMENT BY
 THE PARTIES THAT SUCH
 
    PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING
 CONDITIONS TERMINATE UPON
 
    EXPIRATION OF THAT AGREEMENT OR UNLESS OTHERWISE MODIFIED IN A MANNER
 CONSISTENT WITH THE
 
    ORDER.
 
    HOWEVER, AGENCY MANAGEMENT RETAINS THE RIGHT UPON EXPIRATION OF A
 NEGOTIATED AGREEMENT TO
 
    UNILATERALLY CHANGE PROVISIONS CONTAINED THEREIN RELATING TO
 "PERMISSIVE" SUBJECTS OF
 
    BARGAINING, I.E., THOSE MATTERS WHICH ARE EXCEPTED FROM THE
 OBLIGATION TO NEGOTIATE BY SECTION
 
    11(B) OF THE ORDER, AND EITHER PARTY MAY CHANGE MATTERS WHICH ARE
 OUTSIDE THE SCOPE OF SUCH
 
    OBLIGATION UNDER SECTION 11(A) OF THE ORDER.
 
    SIMILARLY, THOSE AGENCY REGULATIONS ISSUED DURING THE TERM OF A
 NEGOTIATED AGREEMENT WHICH
 
    WERE NOT OPERATIVE WITH RESPECT TO THE BARGAINING UNIT DURING SUCH
 TERM BECOME EFFECTIVE, AS
 
    MANDATED BY SECTION 12(A) OF THE ORDER, UPON THE EXPIRATION OF THAT
 AGREEMENT.
 
    ALSO, WHERE (AS HERE) THE PARTIES ARE RENEGOTIATING A COMPREHENSIVE
 COLLECTING BARGAINING
 
    AGREEMENT AND REACH IMPASSE, A PARTY MAY NOT EFFECT CHANGES IN
 OTHERWISE NEGOTIABLE PERSONNEL
 
    POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS
 WITHOUT FIRST PROVIDING THE
 
    OTHER PARTY WITH SUFFICIENT NOTICE OF ITS INTENT TO IMPLEMENT THE
 CHANGES (WHICH CHANGES
 
    CANNOT EXCEED THE SCOPE OF THE PROPOSALS ADVANCED DURING PRIOR
 NEGOTIATIONS BY THE PARTY
 
    SEEKING TO IMPLEMENT THE CHANGES) SO THAT THE OTHER PARTY IS AFFORDED
 A REASONABLE OPPORTUNITY
 
    UNDER THE CIRCUMSTANCES TO INVOKE THE PROCESSES OF THE PANEL.  IF THE
 PANEL'S PROCESSES ARE
 
    NOT INVOKED WITHIN A REASONABLE TIME OF SUCH NOTIFICATION, THE
 PARTIES SEEKING TO IMPLEMENT
 
    THE CHANGES MAY EFFECT THOSE CHANGES.  HOWEVER, ONCE THE PANEL'S
 PROCESSES ARE INVOLVED WITHIN
 
    A REASONABLE TIME OF SUCH NOTIFICATION, THE PARTIES MUST ADHERE TO
 ESTABLISHED PERSONNEL
 
    POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS,
 INCLUDING THOSE CONTAINED IN
 
    THE EXPIRED AGREEMENT, TO THE MAXIMUM EXTENT CONSISTENT WITH THE
 NECESSARY FUNCTIONING OF THE
 
    AGENCY.
 
    BASED ON THE FOREGOING CRITERIA, EXPRESSED BY THE COUNCIL, ASSUMING
 THAT THERE WERE AGENCY REGULATIONS ISSUED DURING THE TERM OF THE
 AGREEMENT WHICH WERE NOT OPERATIVE WITH RESPECT TO THE BARGAINING UNIT
 DURING SUCH TERM, SUCH BECAME EFFECTIVE AS MANDATED BY SECTION 12(A) OF
 THE ORDER, UPON EXPIRATION OF THAT AGREEMENT AND DID NOT REQUIRE
 BARGAINING ON THE PART OF THE RESPONDENT.  BASED ON REPRESENTATIONS AS
 TO DISCUSSIONS AT THE BARGAINING TABLE EVENTUATING IN THE MAY 12, 1978
 LETTER THE COMPLAINANT WAS CERTAINLY ON NOTICE AS TO RESPONDENTS
 POSITION LONG BEFORE MAY 12, 1978.  I CONCLUDE THAT THE MAY 12 NOTICE
 WAS ISSUED IN GOOD FAITH BY THE RESPONDENT.
 
    SECOND, THE MAY 12, 1978 ANNOUNCEMENT OF A POLICY MATTER UNDER THE
 CIRCUMSTANCES HEREIN, TO WIT, THAT "EFFECTIVE MONDAY, 15 MAY 1978
 SEASONAL MILITARY CLOTHING, SUCH AS PARKAS AND CWU-7P JACKETS, WILL NOT
 BE WORN WITH THE CIVILIAN UNIFORM" DOES NOT PER SE CONSTITUTE
 IMPLEMENTATION OF SUCH DIRECTIVE.  IN THIS CASE, THERE WAS NO EVIDENCE
 PROFFERED THAT ANY BARGAINING UNIT OR OTHER EMPLOYEE OF RESPONDENT
 APPLIED OR WAS REJECTED FOR SUCH SEASONAL MILITARY CLOTHING AND THE
 RECORD DOES NOT OTHERWISE ESTABLISH THAT RESPONDENT ATTEMPTED TO
 IMPLEMENT THE DIRECTIVE BEFORE RESCINDING THE PRIOR LETTER ON JUNE 16,
 1978.  THE FACT THAT RESPONDENT RESCINDED THE MAY 12 LETTER DOES NOT
 ESTABLISH THAT IT WAS IN ANY WAY IMPROPERLY ISSUED BUT THAT RESPONDENT
 WAS WILLING TO BARGAIN FURTHER ON THE MATTER UPON REQUEST.
 
    THIRD, THE COMPLAINANT HAD BEEN AWARE OF THE RESPONDENT'S POSITION
 WITH RESPECT TO THE WEARING OF SEASONAL MILITARY CLOTHING SINCE
 BARGAINING SESSIONS ON RENEGOTIATION OF THE CONTRACT BEGAN IN MID-MARCH
 1978 AND THAT NEW POLICY AND REGULATORY CHANGES MANDATED CHANGE IN THE
 PRIOR AGREEMENT.  THE RECORD DOES NOT ESTABLISH THAT THE RESPONDENT
 REFUSED TO CONFER, CONSULT OR NEGOTIATE WITH THE COMPLAINANT AS TO THE
 MATTER.  IN FACT, IT AGREED TO RESCIND THE MAY 12, 1978 NOTICE PURSUANT
 TO REQUEST OF COMPLAINANT AND HAS SINCE CONTINUED TO BARGAIN ON THE
 MATTER.
 
    I THUS CONCLUDE THAT THE RESPONDENT DID NOT INTERFERE WITH, RESTRAIN,
 OR COERCE AN EMPLOYEE IN THE EXERCISE OF RIGHTS ASSURED BY THIS ORDER;
 OR REFUSE TO CONSULT, CONFER OR NEGOTIATE WITH A LABOR ORGANIZATION AS
 REQUIRED BY THE ORDER;  AND, THAT THE COMPLAINANT HAS NOT SUSTAINED ITS
 BURDEN OF PROVING BY A PREPONDERANCE OF THE EVIDENCE THAT THE RESPONDENT
 VIOLATED THE PROVISIONS OF SECTION 19(A)(1) AND (6) OF THE ORDER.
 
                              RECOMMENDATION
 
    HAVING FOUND FROM THE RECORD THAT THE RESPONDENT HAS NOT ENGAGED IN
 CERTAIN CONDUCT PROHIBITED BY SECTION 19(A)(1) AND (6) OF EXECUTIVE
 ORDER 11491, AS AMENDED, I RECOMMEND THAT THE SECRETARY FOR LABOR
 MANAGEMENT RELATIONS ENTER AN ORDER DISMISSING THE COMPLAINT HEREIN IN
 ITS ENTIRETY.
 
                              RHEA M. BURROW
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JANUARY 30, 1979
 
    WASHINGTON, D.C.
 
    RMB:LE
 
    /1/ THE AUTHORITY IN REACHING THE DISPOSITION HEREIN FINDS IT
 UNNECESSARY TO ADOPT OR PASS UPON THE ADMINISTRATIVE LAW JUDGE'S FINDING
 ON PAGE 10 OF HIS RECOMMENDED DECISION AND ORDER THAT THERE WAS NO
 IMPLEMENTATION OF OR IMPACT FROM THE RESPONDENT'S MAY 12TH DIRECTIVE.
 
    /2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224) THE PRESENT CASE IS 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.
 
    /3/ WEARING OF SEASONAL MILITARY CLOTHING.
 
    /4/ TRANSCRIPT, P. 129.
 
    /5/ COMPLAINANT PRESENTED SOME EVIDENCE AT THE HEARING THAT AFTER THE
 MAY 12, 1978 MEETING IT ATTEMPTED TO HAVE THE MAY 12, 1978 LETTER
 RESCINDED BUT WAS ADVISED IT HAD ALREADY BEEN DISPATCHED.  (ALSO, SEE
 ASSISTANT SECRETARY'S EXHIBIT NO. 5).  THE POSSIBLE LACK OF TIME FOR
 FULL CONSIDERATION OF THE LETTER BY COMPLAINANT WAS LATER REPORTED BY
 THE RESPONDENT TO BE ONE OF THE REASONS FOR THE SUBSEQUENT RECISION.
 
    /6/ COMPLAINANT EXH