78th Division (Training), Kilmer USAR Center, Edison, New Jersey (Respondent) and American Federation of Government Employees, Local 2807, AFL-CIO (Complainant) 



[ v01 p836 ]
01:0836(97)CA
The decision of the Authority follows:


 1 FLRA No. 97
 
 78TH DIVISION (TRAINING),
 KILMER USAR CENTER,
 EDISON, NEW JERSEY
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2807, AFL-CIO
 Complainant
 
                                            Assistant Secretary
                                            Case No. 32-5175(CA)
 
                            DECISION AND ORDER
 
    ON JANUARY 2, 1979, ADMINISTRATIVE LAW JUDGE ROBERT L. RAMSEY ISSUED
 HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
 FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN CONDUCT PERTAINING TO
 THE ESTABLISHMENT OF PERFORMANCE STANDARDS FOR UNIT EMPLOYEES WHICH WAS
 VIOLATIVE OF SECTION 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS
 AMENDED 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.  THE ADMINISTRATIVE LAW
 JUDGE FURTHER FOUND THAT OTHER CONDUCT OF THE RESPONDENT PERTAINING TO
 THE ISSUANCE OF OPERATION PLAN R1-77 WAS NOT VIOLATIVE OF SECTION
 19(A)(1) AND (6) OF THE ORDER AND RECOMMENDED DISMISSAL OF THAT PORTION
 OF THE COMPLAINT.  THERE WERE NO EXCEPTIONS 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 THIS
 CASE, AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE AUTHORITY
 HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS, ONLY TO THE EXTENT CONSISTENT HEREWITH.  /1/
 
    THE COMPLAINT HEREIN ALLEGED, IN ESSENCE, THAT THE RESPONDENT
 VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY FAILING TO MEET AND
 CONFER WITH THE COMPLAINANT PRIOR TO THE ESTABLISHMENT OF "PERFORMANCE
 STANDARDS" FOR UNIT EMPLOYEES AND BY SIMILARLY FAILING TO MEET AND
 CONFER PRIOR TO THE ESTABLISHMENT OF OPERATION PLAN R1-77 WHICH, THE
 COMPLAINANT ARGUED, AFFECTED THE WORKING CONDITIONS OF UNIT EMPLOYEES.
 
    WITH RESPECT TO "PERFORMANCE STANDARDS," THE ADMINISTRATIVE LAW JUDGE
 FOUND THAT, WHILE THERE WAS NO OBLIGATION ON THE PART OF THE RESPONDENT
 TO MEET AND CONFER WITH THE COMPLAINANT, THERE DID EXIST AN OBLIGATION
 TO MEET AND CONFER WITH AFFECTED UNIT EMPLOYEES PRIOR TO THE
 ESTABLISHMENT OF THE STANDARDS.  HAVING FOUND THAT THE RESPONDENT FAILED
 TO FULFILL SUCH BARGAINING OBLIGATION, THE ADMINISTRATIVE LAW JUDGE
 CONCLUDED THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE
 ORDER.
 
    AN EXAMINATION OF THE RECORD REVEALS THAT THE "PERFORMANCE STANDARDS"
 AS THEY ARE REFERRED TO BY THE PARTIES AND THE ADMINISTRATIVE LAW JUDGE,
 ARE, IN ACTUALITY, GUIDELINES FOR USE BY UNIT EMPLOYEES IN PERFORMING
 THEIR ASSIGNED DUTIES.  MORE SPECIFICALLY, THE "PERFORMANCE STANDARDS"
 OUTLINED THE METHODS BY WHICH THE PARTICULAR JOB WAS TO BE PERFORMED.
 /2/
 
    IN THE AUTHORITY'S VIEW THOSE "STANDARDS" IN ISSUE HEREIN, CONSTITUTE
 A "METHOD" WITHIN THE MEANING OF SECTION 12(B)(5) /3/ OF THE ORDER
 RATHER THAN A MEASURE OF INDIVIDUAL PRODUCTIVITY ENCOMPASSED BY SECTION
 11(A) OF THE ORDER.  /4/ WHILE THESE STANDARDS CAN AFFECT AND HAVE AN
 IMPACT ON THE PERSONNEL POLICIES AND PRACTICES AND WORKING CONDITIONS OF
 UNIT EMPLOYEES, THESE STANDARDS, TO THE EXTENT THAT THEY CONSTITUTE A
 METHOD, FALL WITHIN THE AMBIT OF SECTION 12(B)(5) OF THE ORDER AND AS
 SUCH, THE RESPONDENT HAS NO OBLIGATION TO BARGAIN OVER ITS DECISION
 PERTAINING TO THEIR ESTABLISHMENT.  NOTWITHSTANDING THE CONCLUSION THAT
 THERE WAS NO OBLIGATION TO BARGAIN OVER THE DECISION REGARDING THE
 METHODS BY WHICH A PARTICULAR JOB WAS TO BE PERFORMED, THERE REMAINED AN
 OBLIGATION UNDER THE ORDER FOR THE RESPONDENT TO NOTIFY THE COMPLAINANT
 AND AFFORD IT AN OPPORTUNITY TO REQUEST BARGAINING ON THE IMPLEMENTATION
 OF THE DECISION AND ITS IMPACT ON UNIT EMPLOYEES.  /5/ THE RECORD
 REVEALS THAT NO SUCH NOTIFICATION WAS GIVEN BY THE RESPONDENT TO THE
 COMPLAINANT.  ACCORDINGLY, THE RESPONDENT'S CONDUCT IN THIS REGARD IS
 VIOLATIVE OF SECTION 19(A)(1) AND (6) OF THE ORDER.
 
    WITH REGARD TO THE SECOND ALLEGATION OF THE COMPLAINT, THAT
 PERTAINING TO THE ISSUANCE OF OPERATION PLAN R1-77, THE ADMINISTRATIVE
 LAW JUDGE CONCLUDED ESSENTIALLY THAT THE RESPONDENT WAS NOT OBLIGATED TO
 MEET AND CONFER WITH THE COMPLAINANT.  NOTING THE ADMINISTRATIVE LAW
 JUDGE'S FINDING THAT THE PLAN DID NOT EFFECT ANY CHANGES IN THE WORKING
 CONDITIONS OF UNIT EMPLOYEES AND THAT THERE WAS NO EXCEPTION TO THIS
 FINDING, THE AUTHORITY AGREES WITH THIS CONCLUSION.  ACCORDINGLY, THE
 AUTHORITY WILL ORDER THAT THIS ALLEGATION OF THE COMPLAINT BE DISMISSED.
 
                                   ORDER
 
    PURSUANT TO SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS OF
 THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
 THAT THE 78TH DIVISION (TRAINING), KILMER USAR CENTER, EDISON, NEW
 JERSEY, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) ESTABLISHING METHODS BY WHICH EMPLOYEE JOB FUNCTIONS ARE TO BE
 PERFORMED WITHOUT NOTIFYING THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2807, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF ITS
 EMPLOYEES, AND AFFORDING IT THE OPPORTUNITY TO MEET AND CONFER, TO THE
 EXTENT CONSONANT WITH LAW AND REGULATIONS, CONCERNING THE IMPLEMENTATION
 OF SUCH METHODS AND THEIR IMPACT ON ADVERSELY AFFECTED EMPLOYEES.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION:
 
    (A) UPON REQUEST, MEET AND CONFER WITH THE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, LOCAL 2807, AFL-CIO, TO THE EXTENT CONSONANT WITH
 LAW AND REGULATIONS, CONCERNING THE PROCEDURES USED IN IMPLEMENTING
 METHODS BY WHICH EMPLOYEE JOB FUNCTIONS ARE TO BE PERFORMED AND THE
 IMPACT OF SUCH METHODS ON ADVERSELY AFFECTED EMPLOYEES.
 
    (B) POST AT THE 78TH DIVISION (TRAINING), KILMER USAR CENTER
 FACILITY, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE
 FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY.  UPON RECEIPT OF
 SUCH FORMS THEY SHALL BE SIGNED BY THE COMMANDING OFFICER AND SHALL BE
 POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN
 CONSPICUOUS PLACES, INCLUDING BULLETIN BOARDS AND OTHER PLACES WHERE
 NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.  THE COMMANDING OFFICER
 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.
 
    IT IS HEREBY FURTHER ORDERED THAT THE PORTION OF THE COMPLAINT FOUND
 NOT TO BE VIOLATIVE OF THE EXECUTIVE ORDER BE, AND IT HEREBY IS,
 DISMISSED.
 
    ISSUED, WASHINGTON, D.C., AUGUST 15, 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 ESTABLISH METHODS BY WHICH EMPLOYEE JOB FUNCTIONS ARE TO
 BE PERFORMED WITHOUT NOTIFYING THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2807, AFL-CIO, AND AFFORDING IT THE OPPORTUNITY TO MEET
 AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, CONCERNING
 THE IMPLEMENTATION OF SUCH METHODS AND THEIR IMPACT ON ADVERSELY
 AFFECTED EMPLOYEES.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
    WE WILL, UPON REQUEST BY THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2807, AFL-CIO, MEET AND CONFER, TO THE EXTENT CONSONANT
 WITH LAW AND REGULATIONS, CONCERNING THE IMPLEMENTATION OF METHODS BY
 WHICH EMPLOYEE JOB FUNCTIONS ARE TO BE PERFORMED AND THEIR IMPACT ON
 ADVERSELY AFFECTED EMPLOYEES.
 
                                  . . .
 
                           (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 FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
 ADDRESS IS:  ROOM 1751, 26 FEDERAL PLAZA, NEW YORK, NEW YORK 10007, AND
 WHOSE TELEPHONE NUMBER IS:  (212) 399-5508.
 
    LT. COL. RICHARD F. PLECHNER
 
    ASSISTANT CHIEF OF STAFF
 
    DEPARTMENT OF THE ARMY
 
    78TH DIVISION (TRAINING)
 
    KILMER USAR CENTER
 
    EDISON, NEW JERSEY 08817
 
                            FOR THE RESPONDENT
 
    MS. EILEEN ZIMBARDO
 
    NATIONAL REPRESENTATIVE
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES
 
    LOCAL 2807 (AFL-CIO)
 
    300 MAIN STREET
 
    ORANGE, NEW JERSEY 07050
 
                            FOR THE COMPLAINANT
 
    BEFORE:  ROBERT L. RAMSEY
 
    ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
                           PRELIMINARY STATEMENT
 
    THIS PROCEEDING WAS HEARD IN EDISON, NEW JERSEY, ON SEPTEMBER 26 AND
 27, 1978, AND ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED.  PURSUANT
 TO THE REGULATIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS (HEREINAFTER CALLED THE "ASSISTANT
 SECRETARY"), A NOTICE OF HEARING ON COMPLAINANT WAS ISSUED ON JULY 25,
 1978.  THIS WAS INITIATED BY A COMPLAINT (ALJ EXH. 1-B) FILED ON
 SEPTEMBER 12, 1977 BY LOCAL 2807, AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES (AFL-CIO), HEREINAFTER REFERRED TO AS "THE UNION".  IN IT'S
 COMPLAINT, THE UNION ALLEGES THAT THE RESPONDENT VIOLATED SECTIONS
 19(A)(1) AND (6) OF THE EXECUTIVE ORDER BASED ON FOUR SEPARATE CHARGES
 (ATTACHMENT TO ALJ EXH. 1-B).  BY LETTER DATED JUNE 12, 1978 (ALJ EXH.
 1-D), CHARLES L. SMITH, REGIONAL ADMINISTRATOR, OFFICE OF THE ASSISTANT
 SECRETARY FOR LABOR-MANAGEMENT RELATIONS, NEW YORK REGION, ADVISED THE
 COMPLAINANT THAT THE THIRD AND FOURTH CHARGES SPECIFIED IN THE COMPLAINT
 HAD NO REASONABLE BASIS AND WERE THEREFORE DISMISSED.  THUS, THE
 COMPLAINT WENT TO HEARING ALLEGING THAT THE RESPONDENT VIOLATED SECTIONS
 19(A)(1) AND (6) BY ESTABLISHING AND PROMULGATING OPERATION PLAN R1-77
 WITHOUT MEETING AND CONFERRING WITH THE UNION, AND BY ESTABLISHING AND
 PROMULGATING PERFORMANCE STANDARDS FOR RECRUITING SPECIALISTS WITHOUT
 MEETING AND CONFERRING WITH THE UNION.
 
    AT THE HEARING, ALL PARTIES WERE REPRESENTED AND WERE AFFORDED AND
 EXERCISED THE RIGHT TO MAKE AN OPENING STATEMENT, WITNESSES WERE CALLED
 AND TESTIFIED UNDER OATH, EXHIBITS WERE OFFERED AND ADMITTED INTO
 EVIDENCE, ALL PARTIES WERE GIVEN AND EXERCISED THE FULL RIGHT OF
 EXAMINATION AND CROSS-EXAMINATION OF WITNESSES, AND COUNSEL FOR ALL
 PARTIES WERE GIVEN AND EXERCISED THE OPPORTUNITY TO MAKE A CLOSING
 ARGUMENT.  IN ADDITION, BOTH PARTIES WERE AFFORDED, BUT WAIVED THE
 OPPORTUNITY TO FILE A BRIEF.
 
                          ISSUES TO BE DETERMINED
 
    BY LETTER DATED JULY 25, 1978 (ALJ EXH. 2) JOSEPH D. BREITBART,
 ACTING REGIONAL ADMINISTRATOR, OFFICE OF THE ASSISTANT SECRETARY FOR
 LABOR-MANAGEMENT RELATIONS, NEW YORK REGION, SET FORTH THE FOLLOWING
 WHICH WERE ACCEPTED BY COUNSEL (TR. 13), AS BEING ISSUES TO BE RESOLVED
 IN THIS CASE:
 
    1.  WAS THE ISSUANCE OF OPERATION PLAN R1-77 A MATTER ABOUT WHICH THE
 RESPONDENT HAD AN OBLIGATION TO NEGOTIATE WITH THE COMPLAINANT?
 
    2.  IF SO, DID THE RESPONDENT AFFORD THE COMPLAINANT REASONABLE
 OPPORTUNITY TO REQUEST NEGOTIATIONS?
 
    3.  WHETHER THERE WAS AN EMERGENCY SITUATION WHICH MIGHT REASONABLY
 HAVE PREVENTED THE RESPONDENT FROM NOTIFYING THE COMPLAINANT OF THE
 PROPOSED OPERATION PLAN R1-77.
 
    4.  WHETHER THE ISSUANCE OF OPERATION PLAN R1-77 CONSTITUTED A
 UNILATERAL CHANGE IN THE TERMS AND CONDITIONS OF THE PARTIES' NEGOTIATED
 AGREEMENT IN VIOLATION OF RIGHTS ASSURED BY THE ORDER.
 
    5.  DID THE APRIL 15, 1977 MEMO CONCERNING PERFORMANCE STANDARDS
 REQUIRE NEGOTIATIONS WITH THE COMPLAINANT PRIOR TO ITS ISSUANCE?
 
    6.  IF THE SUBJECT MATTER OF THIS MEMO WAS PROPER FOR NEGOTIATIONS,
 DID THE RESPONDENT AFFORD THE COMPLAINANT REASONABLE OPPORTUNITY TO
 REQUEST NEGOTIATIONS?
 
    7.  WAS THE MATTER OF PERFORMANCE STANDARDS COVERED BY THE PARTIES'
 EXPIRED NEGOTIATED AGREEMENT?  IF SO, DID THE ISSUANCE OF THE APRIL 15,
 1977 MEMORANDUM CONSTITUTE A UNILATERAL CHANGE IN A PRACTICE ESTABLISHED
 BY THAT AGREEMENT, AND THUS VIOLATE RIGHTS ASSURED BY THE ORDER?
 
    WITH RESPECT TO THE CHARGE THAT THE RESPONDENT ESTABLISHED AND
 PROMULGATED OPERATION PLAN R1-77 WITHOUT MEETING AND CONFERRING WITH THE
 UNION, THE RESPONDENTS' POSITION IS THAT:  (A) OPERATION PLAN R1-77 DID
 NOT CONTAIN ANY CHANGES IN WORKING CONDITIONS OF THE RECRUITING
 SPECIALIST (RECRUITING BEING THE SUBJECT OF OPERATION PLAN R1-77) AND
 THAT WHILE THE PLAN AFFECTED RECRUITING AND THE OPERATIONS OF THE
 RECRUITING OFFICE, NO CHANGES IN WORKING CONDITIONS WITHIN THE MEANING
 OF THE CONTRACT WERE INCLUDED IN OPERATION PLAN R1-77;  (B) THAT NO
 NOTICE TO THE UNION CONCERNING THE PROMULGATION AND IMPLEMENTATION OF
 OPERATION PLAN R1-77 WAS POSSIBLE DUE TO THE FACT THAT AN EMERGENCY
 EXISTED AND OPERATION PLAN R1-77 WAS PROMULGATED AND IMPLEMENTATED IN
 RESPONSE TO AND AS A RESULT OF, THAT EMERGENCY;  AND (C) THAT UPON
 RECEIPT OF A PROTEST FROM THE UNION, THE RESPONDENT, THOUGH NOT REQUIRED
 TO DO SO, MET WITH REPRESENTATIVES OF THE UNION, AND AFTER EXPLAINING
 THE EMERGENCY BASIS OF THE PLAN, OFFERED TO MEET AND CONFER WITH REGARD
 TO THE PLAN AND ITS IMPLEMENTATION, HOWEVER, THE UNION DID NOT REQUEST
 ANY MEETINGS WITH THE RESPONDENT TO DISCUSS OPERATION PLAN R1-77 AND ITS
 IMPLEMENTATION.
 
    WITH RESPECT TO THE CHARGE THAT THE RESPONDENT ESTABLISHED AND
 PROMULGATED PERFORMANCE STANDARDS FOR RECRUITING SPECIALISTS WITHOUT
 MEETING AND CONFERRING WITH THE UNION, IT IS THE RESPONDENT'S POSITION
 THAT THE PROMULGATION OF SUCH STANDARDS IS NOT NEGOTIABLE AND IS A RIGHT
 RESERVED TO MANAGEMENT UNDER EXECUTIVE ORDER 11491, AS AMENDED.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, FROM MY
 OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, AND FROM A REVIEW OF
 ALL THE TESTIMONY AND EVIDENCE ADDUCED AT THE HEARING, I MAKE THE
 FOLLOWING FINDINGS, CONCLUSIONS AND RECOMMENDATION.
 
                             FINDINGS OF FACT
 
    BACKGROUND
 
    AT ALL TIMES MATERIAL TO THIS CONTROVERSY, THE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, LOCAL 2807 (AFL-CIO) WAS THE EXCLUSIVE
 REPRESENTATIVE OF ALL NON-SUPERVISORY, NON-PROFESSIONAL ARMY RESERVE
 TECHNICIANS, INCLUDING ORGANIZATIONAL MAINTENANCE TECHNICIANS, UNDER THE
 JURISDICTION OF THE 79TH U.S. ARMY RESERVE COMMAND AND THE 78TH DIVISION
 (TRAINING), EMPLOYED IN THE STATE OF NEW JERSEY.
 
    ON MAY 24, 1973, THE DIRECTOR OF CIVILIAN PERSONNEL, DEPARTMENT OF
 THE ARMY APPROVED A NEGOTIATED AGREEMENT BETWEEN THE 79TH UNITED STATES
 ARMY RESERVE COMMAND, COLMAR, PENNSYLVANIA AND THE 78TH DIVISION
 (TRAINING), EDISON, NEW JERSEY AND LOCAL 2807, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES (AFL-CIO).  IN ADDITION TO THE BASIC AGREEMENT, A
 SUPPLEMENT TO THE AGREEMENT (PERTAINING TO WITHHOLDING OF UNION DUES
 WHICH SUBJECT IS NOT PERTINENT TO THIS PROCEEDING) WAS EXECUTED ON THE
 SAME DATE BETWEEN THE PARTIES.  BY THE TERMS OF THE AGREEMENT, THE
 AGREEMENT AND ANY SUPPLEMENTS AND AMENDMENTS THERETO WERE TO BE
 EFFECTIVE FOR A PERIOD OF TWO YEARS FROM THE DATE OF APPROVAL BY THE
 DIRECTOR OF CIVILIAN PERSONNEL, DEPARTMENT OF THE ARMY (MAY 24, 1973)
 AND WERE TO BE AUTOMATICALLY EXTENDED FOR SUCCESSIVE TWO (2) YEAR
 PERIODS THEREAFTER UNLESS EITHER PARTY GAVE WRITTEN NOTICE TO THE OTHER
 BETWEEN THE 90TH AND 60TH DAY PRIOR TO THE EXPIRATION DATE.  FROM THE
 STATEMENTS OF THE REPRESENTATIVES OF THE PARTIES TO THIS CONTROVERSY, IT
 APPEARS THAT NOTICE WAS GIVEN BY ONE PARTY TO THE OTHER WITHIN THE 90-60
 DAY REQUIREMENT, THUS THE AUTOMATIC TWO YEAR RENEWAL PROVISION DID NOT
 BECOME EFFECTIVE, HOWEVER, IT FURTHER APPEARED THAT THE PARTIES AGREED
 TO SEVERAL SHORT TERM EXTENSIONS OF THE AGREEMENT, THE LAST OF WHICH
 EXTENSIONS EXPIRED SOME TIME PRIOR TO THE OCCURRENCES WHICH ARE THE
 BASIS OF THE COMPLAINT HEREIN.  IT IS THE UNION'S POSITION THAT WHILE
 THE NEGOTIATED AGREEMENT BETWEEN THE PARTIES HAD EXPIRED AND WAS NOT IN
 EFFECT AT THE TIME THE EVENTS GIVING RISE TO THE COMPLAINT OCCURRED, THE
 PROVISIONS OF THE AGREEMENT, AS THEY RELATE TO THE AGREEMENT TO MEET AND
 CONFER, ARE BINDING ON THE RESPONDENT AS PERSONNEL POLICIES AND PAST
 PRACTICES WHICH COULD NOT BE UNILATERALLY CHANGED.
 
    ON APRIL 8, 1977, GENERAL SMITH, THE 1ST ARMY COMMANDER, FORT GEORGE
 MEADE, MARYLAND, CALLED A CONFERENCE WITH THE COMMANDING OFFICER AND
 VARIOUS STAFF MEMBERS ASSIGNED TO THE RESPONDENT CONCERNING RECRUITING
 PLANS.  AT THAT TIME, THE RESPONDENT WAS NOT UP TO ITS AUTHORIZED
 NUMERICAL STRENGTH AND GENERAL SMITH WAS APPARENTLY CONCERNED AND
 OBVIOUSLY UNHAPPY WITH THIS STATE OF AFFAIRS.  AT SOME POINT DURING THIS
 MEETING, COLONEL MILTON BOGOLUB, A U.S. ARMY RESERVE OFFICER WHOSE
 MILITARY OCCUPATION IS CHIEF OF STAFF OF THE RESPONDENT, AND WHO IS
 EMPLOYED IN A CIVILIAN AS ADMINISTRATIVE ASSISTANT TO THE COMMANDING
 GENERAL OF THE 78TH DIVISION, WAS DIRECTED BY GENERAL SMITH TO DRAW UP A
 NEW RECRUITING PLAN FOR THE RESPONDENT DESIGNED TO INCREASE BOTH THE
 NUMERICAL STRENGTH AND QUALITY OF THE RESPONDENT.  COLONEL BOGOLUB
 ADVISED GENERAL SMITH THAT HE WOULD DRAW UP SUCH A PLAN AND WOULD HAVE
 IT ON THE GENERAL'S DESK WITHIN A WEEK OR SO, HOWEVER, GENERAL SMITH
 ADVISED COLONEL BOGOLUB THAT HE EXPECTED THE NEW RECRUITING PLAN TO BE
 ON HIS (GENERAL SMITH'S) DESK BY THE CLOSE OF BUSINESS THAT VERY SAME
 DAY.  FURTHER, COLONEL BOGOLUB WAS INSTRUCTED NOT TO LEAVE FORT MEADE
 UNTIL SUCH TIME AS THE PLAN HAD BEEN SUBMITTED TO GENERAL SMITH.
 COLONEL BOGOLUB THEN PREPARED THE DOCUMENT WHICH HAS BECOME KNOWN AS
 OPERATION PLAN R1-77 (ENCLOSURE 5 TO ALJ EXH. 1-B).  THIS PLAN DIFFERS
 FROM PREVIOUS PLANS IN SEVERAL AREAS.  FIRST, THE STATE OF NEW JERSEY
 WAS, FOR ADMINISTRATIVE PURPOSES, DIVIDED INTO THREE REGIONS.
 RECRUITING SPECIALISTS (A CIVIL SERVICE CLASSIFICATION) WITHIN EACH OF
 THESE AREAS WERE PLACED, FOR ADMINISTRATIVE PURPOSES, UNDER A MILITARY
 NON-COMMISSIONED OFFICER (NCO).  THE IDENTIFICATION, CIVIL SERVICE
 GRADE, CLASSIFICATION, PHYSICAL LOCATION AND DIRECT REPORTING LINES
 (HIERARCHY) REMAINED UNCHANGED.  A "TASK ORGANIZATION" CHART (ALJ EXH.
 1-B, ENCLOSURE 5, ANNEX A) INDICATES UNDER THE HEADING "AUTH. STRENGTHS"
 ONE RECRUITING OFFICER AT THE GS-10/11 LEVEL.  UNDER PREVIOUS PLANS, THE
 RECRUITING OFFICER POSITION WAS CLASSIFIED AS A GS-9.
 
    OPERATION PLAN R1-77 (ALJ EXH. 1-B, ENCLOSURE 5, P. 4), WHICH IS
 DATED APRIL 8, 1977, CONTAINS THE FOLLOWING INSTRUCTION:
 
    "(1) THIS PLAN IS EFFECTIVE FOR PLANNING ON RECEIPT AND FOR EXECUTION
 NOT LATER THAN 8 APRIL 1977.  (2) THIS PLAN SUPERSEDES ALL RECRUITING
 POLICIES.  IN THE EVENT OF CONFLICTING INFORMATION, INSTRUCTIONS
 CONTAINED IN THIS OPLAN PREVAIL." AT THE TIME OPERATION PLAN R1-77 WAS
 PROMULGATED (APRIL 8, 1977), GENERAL SMITH INSTRUCTED COLONEL BOGOLUB
 AND THE OTHER REPRESENTATIVES OF THE RESPONDENT PRESENT AT THE MEETING
 WITH GENERAL SMITH, TO IMPLEMENT OPERATION PLAN R1-77 WITHIN ONE WEEK
 (APRIL 15, 1977).
 
    ON APRIL 15, 1977, CAPTAIN JAMES C. SANDEFER, RESPONDENT'S RECRUITING
 OFFICER, ISSUED A DISPOSITION FORM (ENCLOSURE TO ALJ EXH 1-C) TO
 RECRUITING SPECIALISTS CONCERNING PERFORMANCE STANDARDS DEVELOPED FOR
 THE RECRUITING SPECIALISTS POSITION BY THE RESPONDENT.  ON APRIL 25,
 1977, IRVING I. SPIELMAN, A RECRUITING SPECIALIST ASSIGNED TO THE
 RESPONDENT, WROTE CAPTAIN SANDEFER (ENCLOSURE 3 TO JOINT EXH. 1) AND
 COMPLAINED ABOUT THE PERFORMANCE STANDARDS ISSUED ON APRIL 15, 1977, AND
 ARGUED, INTER ALIA, THAT IN SETTING A JOB PERFORMANCE STANDARD, THE
 REGULATIONS PERTAINING TO IT SHOULD HAVE BEEN FOLLOWED AS SET FORTH IN
 IGMR REGULATION 690-6, AND FORSCOM PAMPHLET 690-3, AND SHOULD HAVE BEEN
 PERSONALLY DISCUSSED AND MUTUALLY AGREED UPON BETWEEN HIM AND HIS
 SUPERVISOR.  ON MAY 10, 1977, MR. SPIELMAN CONTACTED A REPRESENTATIVE OF
 THE RESPONDENT AND REQUESTED A "STEP I MEETING IN REGARDS TO MY LETTER
 OF 25 APRIL 1977, TO CPT. SANDEFER." (ENCLOSURE 32, JOINT EXH. 1).  AS
 THE RESULT OF THIS MEETING CAPTAIN SANDEFER, ON MAY 20, 1977, ISSUED A
 NOTICE TO RECRUITING SPECIALISTS (ENCLOSURE 4 TO JOINT EXH. 1)
 RESCINDING THE PERFORMANCE STANDARDS DATED APRIL 15, 1977.
 
    ISSUE NUMBER 1
 
    WAS THE ISSUANCE OF OPERATION PLAN R1-77 A MATTER ABOUT WHICH THE
 RESPONDENT HAD AN OBLIGATION TO NEGOTIATE WITH THE COMPLAINANT?
 
    THIS ISSUE IS ANSWERED IN THE NEGATIVE.  SECTION 12(B) OF EXECUTIVE
 OF EXECUTIVE ORDER 11491 RESERVES TO MANAGEMENT, IN ACCORDANCE WITH
 APPLICABLE LAWS AND REGULATIONS, THE RIGHT TO MAINTAIN THE EFFICIENCY OF
 THE GOVERNMENT OPERATIONS ENTRUSTED TO THEM (SECTION 12(B)(4)) AND TO
 DETERMINE THE METHODS, MEANS, AND PERSONNEL BY WHICH SUCH OPERATIONS ARE
 TO BE CONDUCTED (SECTION 12(B)(5)).  IN THE INSTANT CASE, AMONG THE
 GOVERNMENT OPERATIONS ENTRUSTED TO THE RESPONDENT IS THE RESPONSIBILITY
 TO PROVIDE AND MAINTAIN AT AS NEARLY FULL STRENGTH AS POSSIBLE, A
 MILITARY RESERVE ORGANIZATION DESIGNED TO BE AN INTEGRAL PART OF THE
 NATIONAL DEFENSE.  SECTION 12(B)(5) OF EXECUTIVE ORDER 11491, AS NOTED
 ABOVE, RESERVES TO MANAGEMENT THE RIGHT TO DETERMINE THE METHODS, MEANS
 AND PERSONNEL BY WHICH SUCH OPERATIONS ARE TO BE CONDUCTED.  CLEARLY,
 OPERATION PLAN R1-77 IS NOTHING MORE THAN A VEHICLE BY WHICH A PORTION
 OF THE GOVERNMENT OPERATIONS ENTRUSTED TO THE RESPONDENT WERE TO BE
 CONDUCTED.  THE ACTUAL AUTHOR OF OPERATION PLAN R1-77, COLONEL MILTON
 BOGOLUB, TESTIFIED THAT THE PLAN WAS DRAWN UP BASICALLY AS A
 MODIFICATION OF A PREVIOUS PLAN AND DEALT WITH THE RECRUITING POLICIES
 OF THE ENTIRE DIVISION MADE UP OF MORE THAN 6,000 INDIVIDUALS, BOTH
 MILITARY AND CIVILIAN, OF WHOM ONLY APPROXIMATELY 12 COULD REMOTELY BE
 AFFECTED AS ALLEGED BY THE UNION.  THE TECHNICIANS (RECRUITING
 SPECIALISTS) WERE A VERY SMALL PERCENTAGE (DE MINIMUS) OF THE OVERALL
 PERSONNEL INVOLVED IN THE PLAN AND THE DAY TO DAY WORKING CONDITIONS OF
 NONE OF THESE WAS IN ANY WAY AFFECTED BY THE PLAN.  NOT A SINGLE
 TECHNICIAN WAS REQUIRED TO MOVE ANYWHERE AS A RESULT OF THE PLAN, ALL
 TECHNICIANS CONTINUED TO WORK AT THE SAME DESK, IN THE SAME ROOM, IN THE
 SAME BUILDING, FOR THE SAME SALARY AND IN THE SAME GRADES AS PREVIOUSLY.
  ONLY ONE PORTION OF THE PLAN (SEE ALJ EXH. 1-B, ENCLOSURE 5, ANNEX A)
 WHERE THE GRADE CLASSIFICATION OF RECRUITING OFFICER WAS SHOWN TO BE AT
 THE GS-10/11 LEVEL WHERE PREVIOUSLY IT HAD BEEN CLASSIFIED AT THE GS-9
 LEVEL COULD BE SAID TO BE A CHANGE.
 
    ACCORDING TO THE UNION, INASMUCH AS ADVANCEMENT MAY BE NO MORE THAN
 TWO GRADES AT ANY ONE TIME, THE POSITION OF RECRUITING OFFICER AT
 GS-10/11 COULD NOT BE REACHED BY ANY RECRUITING SPECIALISTS WHO WERE
 CLASSIFIED AT THE GS-7 LEVEL, THUS THE INABILITY TO ADVANCE FROM
 RECRUITING SPECIALIST TO RECRUITING OFFICER UNDER THE NEW PLAN WAS A
 CHANGE OF CONDITION OF EMPLOYMENT REQUIRING NEGOTIATION.  THIS ARGUMENT
 IS MORE ILLUSORY THAN REAL IN THAT COLONEL BOGOLUB'S UNCONTRADICTED
 TESTIMONY ESTABLISHED THAT DESIGNATING THE RECRUITING OFFICER AT THE
 GS-10/11 LEVEL WAS NOTHING MORE THAN A PROPOSAL OR PROJECTION IN THAT
 THERE WAS NO CIVIL SERVICE AUTHORIZATION FOR A RECRUITING OFFICER AT
 HIGHER THAN THE GS-9 LEVEL.
 
    THE UNION FURTHER ARGUED THAT THE NAMING OF NON-COMMISSIONED OFFICERS
 AS SUPERVISORS FOR THE RECRUITING SPECIALISTS CONSTITUTED A CHANGE IN
 WORKING CONDITIONS WHICH OBLIGATED THE RESPONDENT TO NEGOTIATE.  I
 DISAGREE.  AS COLONEL BOGOLUB TESTIFIED, THE STATE OF NEW JERSEY WAS
 DIVIDED INTO THREE AREAS FOR THE PURPOSE OF COMMAND SUPERVISION AND EACH
 AREA WAS PLACED UNDER THE COMMAND OF AN AREA COMMANDER.  SUCH A DIVISION
 OF THE GEOGRAPHICAL AREA OF RESPONSIBILITY OF THE RESPONDENT IN MY MIND
 FALLS WITHIN THE PARAMETERS SET FORTH IN SECTION 12(B)(4) AND (5) OF
 EXECUTIVE ORDER 11491.  FURTHER, I KNOW OF NO DECISION, NOR HAS ANY BEEN
 POINTED OUT TO ME BY THE UNION, WHICH REQUIRES NEGOTIATION AS TO THE
 PERSON OF SUPERVISOR.
 
    ISSUE NUMBER 2
 
    IF THE ISSUANCE OF OPERATION PLAN R1-77 WAS A MATTER ABOUT WHICH THE
 RESPONDENT HAD AN OBLIGATION TO NEGOTIATE WITH THE COMPLAINANT, DID THE
 RESPONDENT AFFORD THE COMPLAINANT REASONABLE OPPORTUNITY TO REQUEST
 NEGOTIATIONS?
 
    INASMUCH AS I HAVE DETERMINED THAT THE RESPONDENT WAS UNDER NO
 OBLIGATION TO NEGOTIATE WITH THE UNION CONCERNING THE ISSUANCE OF
 OPERATION PLAN R1-77, THIS ISSUE IS MOOT.
 
    ISSUE NUMBER 3
 
    WAS THERE AN EMERGENCY SITUATION WHICH MIGHT REASONABLY HAVE
 PREVENTED THE RESPONDENT FROM NOTIFYING THE COMPLAINANT OF THE PROPOSED
 OPERATION PLAN R1-77?
 
    ASSUMING, ARGUENDO, THAT THERE WAS AN OBLIGATION ON THE PART OF THE
 RESPONDENT TO NEGOTIATE WITH THE UNION PRIOR TO THE ISSUANCE OF
 OPERATION PLAN R1-77, I FIND THAT THERE WAS AN EMERGENCY SITUATION IN
 REGARD TO THE ISSUANCE OF THIS PLAN WHICH REASONABLY PREVENTED THE
 RESPONDENT FROM NEGOTIATING WITH THE UNION PRIOR TO THE ISSUANCE OF
 OPERATION PLAN R1-77.  AS INDICATED BY THE UNCONTRADICTED TESTIMONY OF
 COLONEL BOGOLUB, GENERAL SMITH, THE FIRST ARMY COMMANDER, ON VERY SHORT
 NOTICE, CALLED A MEETING OF THE RESPONDENT'S STAFF OFFICERS TO DISCUSS
 DIVISION STRENGTH AND METHODS OF IMPROVING THE SAME.  COLONEL BOGOLUB
 TESTIFIED THAT GENERAL SMITH WAS VERY UNHAPPY AND DISPLEASED WITH THE
 THEN EXISTING DIVISION STRENGTH AND THE THEN RECRUITING EFFORTS.
 OBVIOUSLY, THIS DISPLEASURE WAS EVIDENCED BY GENERAL SMITH'S INSISTENCE
 THAT A NEW OPERATIONS PLAN BE PROMULGATED INSTANTER.  THIS DISPLEASURE
 IS FURTHER EVIDENCED BY GENERAL SMITH'S FORBIDDING THOSE RESPONSIBLE FOR
 DRAFTING THE NEW PLAN FROM LEAVING THE PREMISES UNTIL SUCH TIME AS THE
 PLAN WAS PROMULGATED.  REALISTICALLY, THIS EFFECTIVELY PRECLUDED ANY
 OPPORTUNITY TO MEET AND CONFER WITH THE UNION PRIOR TO THE ISSUANCE OF
 OPERATION PLAN R1-77.
 
    EVEN IF THE RESPONDENT HAD AN OBLIGATION TO MEET AND CONFER WITH THE
 UNION CONCERNING THE ISSUANCE OF OPERATION PLAN R1-77 AND HAD BEEN, BY
 REASON OF THE EVENTS WHICH TRANSPIRED AT THE MEETING WITH GENERAL SMITH,
 PREVENTED FROM ENGAGING IN PRIOR NEGOTIATION, THE RESPONDENT WOULD HAVE
 FULFILLED ANY OBLIGATION WHICH IT HAD TO MEET AND CONFER BY RESPONDING
 TO THE UNION'S LETTER OF MAY 17, 1977 AND MEETING WITH UNION
 REPRESENTATIVES ON JULY 20, 1977 TO DISCUSS OPERATION PLAN R1-77.
 
    ISSUE NUMBER 4
 
    DID THE ISSUANCE OF OPERATION PLAN R1-77 CONSTITUTE A UNILATERAL
 CHANGE IN THE TERMS AND CONDITIONS OF THE PARTIES' NEGOTIATED AGREEMENT
 IN VIOLATION OF RIGHTS ASSURED BY EXECUTIVE ORDER 11491?
 
    THIS ISSUE MUST ALSO BE ANSWERED IN THE NEGATIVE.  AS NOTED ABOVE, I
 AM OF THE OPINION THAT OPERATION PLAN R1-77 FELL WITHIN THAT CATEGORY OF
 ACTION ON WHICH NO NEGOTIATION WAS REQUIRED UNDER THE PROVISIONS OF
 SECTION 12(B)(4) AND (5) OF EXECUTIVE ORDER 11491.  EACH OF THE RIGHTS
 RESERVED TO MANAGEMENT IN SECTION 12(B) OF EXECUTIVE ORDER 11491 WAS
 REITERATED VERBATIM IN ARTICLE III, SECTION 2 OF THE NEGOTIATED
 AGREEMENT (JOINT EXH. 1).  THERE CAN BE NO QUESTION THAT THE RESPONDENT
 INTENDED, AT THE TIME THE NEGOTIATED AGREEMENT WAS ENTERED INTO, TO
 RETAIN EACH AND EVERY RIGHT WHICH WAS RESERVED TO IT BY SECTION 12(B) OF
 EXECUTIVE ORDER 11491 AND DID NOT INTEND TO SURRENDER ANY OF SAID RIGHTS
 OR TO MAKE THE SAME SUBJECT TO NEGOTIATION.  INASMUCH AS THE ISSUANCE OF
 OPERATION PLAN R1-77 WAS THE EXERCISE OF A RIGHT RESERVED TO THE
 RESPONDENT UNDER SECTION 12(B)(4) AND (5) OF EXECUTIVE ORDER 11491 AND
 ARTICLE III, SECTION 2(4) AND (5) OF THE NEGOTIATED AGREEMENT, THE
 ISSUANCE OF OPERATION PLAN R1-77 COULD NOT AND DID NOT CONSTITUTE A
 UNILATERAL CHANGE IN THE TERMS AND CONDITIONS OF THE NEGOTIATED
 AGREEMENT IN VIOLATION OF THE RIGHTS ASSURED BY EXECUTIVE ORDER 11491.
 
    ISSUE NUMBER 5
 
    DID THE APRIL 15, 1977 MEMO CONCERNING PERFORMANCE STANDARDS REQUIRE
 NEGOTIATIONS WITH THE COMPLAINANT PRIOR TO ITS ISSUANCE?
 
    THIS ISSUE IS ANSWERED IN THE NEGATIVE.
 
    ARTICLE V, SECTION 10 OF THE NEGOTIATED AGREEMENT (JOINT EXH. 1)
 PROVIDES:
 
    STANDARDS OF PERFORMANCE ARE ESTABLISHED IN ACCORDANCE WITH
 APPLICABLE REGULATIONS.  WHEN SUCH STANDARDS OF PERFORMANCE ARE TO BE
 ESTABLISHED, THE EMPLOYER WILL CONSULT WITH THE EMPLOYEE.
 
    THE UNION ARGUES THAT PRIOR TO ISSUING THE MEMORANDUM OF APRIL 15,
 1977 CONCERNING PERFORMANCE STANDARDS, THE EMPLOYER WAS OBLIGATED TO
 NEGOTIATE WITH THE UNION.  THE RESPONDENT, ON THE OTHER HAND, ALLEGES
 THAT SINCE THE PERFORMANCE STANDARDS CONTAINED IN THE APRIL 15, 1977
 MEMO WERE PROMULGATED PURSUANT TO IGMR REGULATION 690-6 (RESPONDENT'S
 EXH. 9) AND FORSCOM PAMPHLET 690-3 (REFERRED TO IN RESPONDENT'S EXHS. 7
 AND 8), AND THE COVER LETTER TO THE APRIL 15, 1977 MEMO (ALJ EXH. 1-B,
 ENCLOSURE 7) WHICH WAS ADDRESSED TO ALL RECRUITING SPECIALISTS CONTAINED
 THE FOLLOWING:
 
    2.  YOU ARE DIRECTED TO READ THE ATTACHED CAREFULLY.  YOU MAY DISCUSS
 ANY QUESTIONS,
 
    COMMENTS, SUGGESTIONS, OBJECTIONS, ETC.  I WILL BE OPEN FOR
 DISCUSSION AT THE NEXT RECRUITER'S
 
    MEETING OR YOU MAY CONTACT ME DIRECTLY IF YOU DESIRE TO DISCUSS THEM
 IMMEDIATELY." (THE MEMO
 
    WAS SIGNED BY CAPTAIN JAMES C. SANDEFER, RECRUITING OFFICER)
 
    THE RESPONDENT HAD MET ANY OBLIGATION IT HAD TO DISCUSS THE
 PERFORMANCE STANDARDS ATTACHED TO THE MEMO.  FURTHER, THE RESPONDENT
 ARGUES THAT ARTICLE V, SECTION 10 OF THE NEGOTIATED AGREEMENT DIRECTS
 THAT ANY CONSULTATION WILL BE WITH THE EMPLOYEE, THUS THERE WAS NO
 OBLIGATION TO MEET AND CONSULT WITH THE UNION.  I AGREE WITH THIS
 CONCLUSION, BUT FEEL THAT THE REASON SHOULD BE EXPLAINED.  WHILE IT IS
 TRUE THAT ARTICLE V, SECTION 10 DIRECTS THAT CONSULTATION WILL BE HAD
 WITH THE EMPLOYEE, THIS PROVISION CANNOT BE READ IN ISOLATION, BUT MUST
 BE READ IN THE CONTEXT OF THE ENTIRE AGREEMENT.  UNDER ARTICLE I,
 SECTION 1, THE EMPLOYER (THE RESPONDENT HEREIN) RECOGNIZES THE UNION AS
 THE EXCLUSIVE REPRESENTATIVE OF ALL EMPLOYEES IN THE UNIT . . . "WITH
 RESPECT TO GRIEVANCES, PERSONAL POLICIES, PRACTICES AND PROCEDURES, OR
 OTHER MATTERS AFFECTING THEIR GENERAL WORKING CONDITIONS." ARTICLE V,
 SECTION 9 PROHIBITS THE RESPONDENTS FROM QUESTIONING OR CANVASSING
 EMPLOYEES IN THE UNIT IN REGARD TO ANY MATTER SUBJECT TO NEGOTIATIONS OR
 CONSULTATION UNLESS SUCH EMPLOYEES HAVE BEEN DULY AUTHORIZED BY THE
 UNION TO ACT AS SPOKESMAN IN REGARD TO SUCH DISCUSSIONS.  THUS, UNLESS
 ARTICLE V, SECTION 10 OVERRIDES ARTICLE I, SECTION 1 AND THE GENERAL
 PROHIBITION CONTAINED IN ARTICLE V, SECTION 9, THE COMPLAINANT MUST BE
 CONSULTED PRIOR TO ISSUANCE OF PERFORMANCE STANDARDS.  IN MY VIEW, THE
 PROVISION OF ARTICLE V, SECTION 10, DIRECTING THAT "WHEN STANDARDS OF
 PERFORMANCE ARE TO BE ESTABLISHED, THE EMPLOYER WILL CONSULT WITH THE
 EMPLOYEE" IS TO BE INTERPRETED AS AUTHORIZING DISCUSSION WITH THE
 AFFECTED EMPLOYEE IN REGARD TO SUCH MATTERS WITHIN THE MEANING OF
 ARTICLE V, SECTION 9.  THUS, IN MY VIEW, THERE WAS NO OBLIGATION FOR THE
 RESPONDENT TO NEGOTIATE WITH THE COMPLAINANT (THE UNION) PRIOR TO THE
 ISSUANCE OF THE APRIL 15, 1977 MEMO.
 
    ISSUE NUMBER 6
 
    IF THE APRIL 15, 1977 MEMO CONCERNING PERFORMANCE STANDARDS REQUIRED
 NEGOTIATIONS WITH THE UNION PRIOR TO ITS ISSUANCE, DID THE RESPONDENT
 AFFORD THE COMPLAINANT REASONABLE OPPORTUNITY TO REQUEST NEGOTIATIONS?
 
    INASMUCH AS I HAVE DETERMINED THAT THERE WAS NO OBLIGATION ON THE
 PART OF THE RESPONDENT TO NEGOTIATE WITH THE UNION PRIOR TO THE ISSUANCE
 OF THE APRIL 15, 1977 MEMO, THIS QUESTION IS MOOT.
 
    ISSUE NUMBER 7
 
    WAS THE MATTER OF PERFORMANCE STANDARDS COVERED BY THE PARTIES'
 EXPIRED NEGOTIATED AGREEMENT?  IF SO, DID THE ISSUANCE OF THE APRIL 15,
 1977 MEMORANDUM CONSTITUTE A UNILATERAL CHANGE IN A PRACTICE ESTABLISHED
 BY THAT AGREEMENT, AND THUS VIOLATE RIGHTS ASSURED BY THE ORDER?
 
    BOTH QUESTIONS CONTAINED WITHIN THE STATEMENT OF THIS PARTICULAR
 ISSUE MUST BE ANSWERED IN THE AFFIRMATIVE.
 
    ARTICLE V, SECTION 10, STATES IN PART,:  "STANDARDS OF PERFORMANCE
 ARE ESTABLISHED IN ACCORDANCE WITH APPLICABLE REGULATIONS." THERE CAN BE
 NO ARGUMENT THAT THE PERFORMANCE STANDARDS FOR RECRUITING SPECIALISTS
 ATTACHED TO THE APRIL 15, 1977 MEMORANDUM TO RECRUITING SPECIALISTS FROM
 CAPTAIN SANDEFER WERE AUTHORIZED AND IN CONFORMITY WITH BOTH IGMR
 REGULATION 690-6 AND FORSCOM PAMPHLET 690-3, HOWEVER, A CLOSE
 EXAMINATION OF ARTICLE V, SECTION 10 OF THE NEGOTIATED AGREEMENT (JOINT
 EXH. 1) INDICATES THAT "WHEN SUCH STANDARDS OF PERFORMANCE ARE TO BE
 ESTABLISHED, THE EMPLOYER WILL CONSULT WITH THE EMPLOYER." BY SPEAKING
 IN THE FUTURE TENSE, IT APPEARS THAT IT WAS INTENDED BY THE PARTIES TO
 THE NEGOTIATED AGREEMENT THAT THE EMPLOYER WOULD CONSULT WITH THE
 EMPLOYEE PRIOR TO THE ESTABLISHMENT OF PERFORMANCE STANDARDS.  HERE, IT
 IS ADMITTED THAT SUCH PRIOR CONSULTATION DID NOT OCCUR, BUT IT IS ARGUED
 THAT CONSULTATION AFTER PROMULGATION WAS INVITED, THUS THE REQUIREMENTS
 TO MEET AND CONFER WERE SATISFIED.  I CANNOT AGREE WITH THIS CONTENTION.
  WHILE IT IS TRUE THAT THE CONSULTATION WHICH TOOK PLACE SUBSEQUENT TO
 THE PROMULGATION OF THE PERFORMANCE STANDARDS RESULTED IN THE SAME BEING
 RESCINDED BY MEMO DATED MAY 20, 1977 (JOINT EXH. 1, ENCLOSURE 4), THIS
 DOES NOT CURE THE OVERSIGHT ON THE PART OF THE RESPONDENT.
 
    TO SUSTAIN A CHARGE OF UNFAIR LABOR PRACTICE(S), IT IS NOT NECESSARY
 FOR A COMPLAINANT TO ALLEGE AND PROVE BAD FAITH ON THE PART OF THE
 RESPONDENT.  IT IS SUFFICIENT THAT THE COMPLAINANT PROVE EITHER A
 VIOLATION OF THE EXECUTIVE ORDER OR OF THE AGREEMENT NEGOTIATED BETWEEN
 THE PARTIES.  HERE, THE PARTIES HAD NEGOTIATED A PROVISION (ARTICLE V,
 SECTION 10) REQUIRING CONSULTATION PRIOR TO THE ESTABLISHMENT OF
 PERFORMANCE STANDARDS.  AS A RESULT, THIS PROVISION BECAME A PERSONNEL
 POLICY AND PRACTICE WHICH CONTINUED AFTER THE EXPIRATION OF THE
 AGREEMENT UNTIL SUCH TIME AS A NEW AGREEMENT ON THE SAME SUBJECT MATTER
 WAS NEGOTIATED, WHICH, ADMITTEDLY IN THIS CASE, WAS SUBSEQUENT TO THE
 ACTS COMPLAINED OF IN THE COMPLAINT.  BY FAILING TO COMPLY WITH THIS
 PERSONNEL POLICY AND PAST PRACTICE BEFORE ISSUING THE PERFORMANCE
 STANDARDS FOR RECRUITING SPECIALISTS, THE RESPONDENT COMMITTED AN UNFAIR
 LABOR PRACTICE.
 
                                CONCLUSIONS
 
    1.  THE RESPONDENT DID NOT COMMIT AN UNFAIR LABOR PRACTICE WHEN IT
 ESTABLISHED OPERATION PLAN R1-77 WITHOUT FIRST MEETING AND CONFERRING
 WITH THE COMPLAINANT.
 
    2.  THE RESPONDENT COMMITTED AN UNFAIR LABOR PRACTICE WHEN IT
 PROMULGATED PERFORMANCE STANDARDS FOR RECRUITING SPECIALISTS WITHOUT
 MEETING AND CONFERRING OR OFFERING TO MEET AND CONFER WITH THE
 RECRUITING SPECIALISTS PRIOR TO THE ESTABLISHMENT OF SUCH PERFORMANCE
 STANDARDS.
 
                              RECOMMENDATION
 
    UPON THE BASIS OF THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF
 LAW AND PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED,
 AND SECTION 203.26(B) OF THE RULES AND REGULATIONS, I RECOMMEND THAT
 CHARGE NUMBER 1 AS CONTAINED IN THE COMPLAINT HEREIN BE DISMISSED.  I
 FURTHER RECOMMEND THAT THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS ADOPT THE FOLLOWING ORDER DESIGNED TO
 EFFECTUATE THE POLICIES OF THE ORDER.
 
                             RECOMMENDED ORDER
 
    PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
 SECTION 203.26(B) OF THE RULES AND REGULATIONS, THE ASSISTANT SECRETARY
 OF LABOR FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE 78TH
 DIVISION (TRAINING) KILMER USAR CENTER, EDISON, NEW JERSEY SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) ESTABLISHING AND ISSUING PERFORMANCE STANDARDS FOR RECRUITING
 SPECIALISTS WITHOUT FIRST MEETING AND CONFERRING OR OFFERING TO MEET AND
 CONFER WITH SUCH EMPLOYEES AS MAY BE AFFECTED BY THE ESTABLISHMENT OF
 SUCH PERFORMANCE STANDARDS.
 
    (B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS GUARANTEED BY EXECUTIVE
 ORDER 11491, AS AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND PROVISIONS OF THE EXECUTIVE ORDER:
 
    (A) POST AT THE 78TH DIVISION (TRAINING) FACILITY, KILMER USAR
 CENTER, EDISON, NEW JERSEY, COPIES OF THE ATTACHED NOTICE MARKED
 "APPENDIX" ON FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY FOR
 LABOR-MANAGEMENT RELATIONS.  UPON RECEIPT OF SUCH FORMS, THEY SHALL BE
 SIGNED BY THE COMMANDING OFFICER OF THE 78TH DIVISION (TRAINING), AND
 THEY SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS
 THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO
 EMPLOYEES ARE CUSTOMARILY POSTED.  THE COMMANDING OFFICER SHALL TAKE
 REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED OR
 COVERED BY OTHER MATERIAL.
 
    (B) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
 ASSISTANT SECRETARY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
 ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
                             ROBERT L. RAMSEY
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JAN 2 1979
 
    WASHINGTON, D.C.
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
        PURSUANT TO A DECISION AND ORDER OF THE ASSISTANT SECRETARY
 
          OF LABOR FOR LABOR-MANAGEMENT RELATIONS AND IN ORDER TO
 
           EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
 
             AMENDED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
 
               SERVICE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    THE 78TH DIVISION (TRAINING) WILL NOT PROMULGATE OR ISSUE PERFORMANCE
 STANDARDS FOR RECRUITING SPECIALISTS WITHOUT FIRST MEETING AND
 CONFERRING OR OFFERING TO MEET AND CONFER WITH SUCH INDIVIDUALS AS MAY
 BE AFFECTED BY THE PROPOSED PERFORMANCE STANDARDS.
 
    THE 78TH DIVISION (TRAINING) WILL NOT IN ANY LIKE OR RELATED MANNER
 INTERFERE WITH, RESTRAIN OR COERCE ITS EMPLOYEES IN THE EXERCISE OF
 RIGHTS GUARANTEED BY EXECUTIVE ORDER 11491, AS AMENDED.
 
                         78TH DIVISION (TRAINING)
 
                            KILMER USAR CENTER
 
                            EDISON, NEW JERSEY
 
    DATED:  . . .  BY:  . . .
 
                                (SIGNATURE)
 
                                  . . .
 
                                  (TITLE)
 
    THIS NOTICE MUST REMAIN POSTED FOR SIXTY (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 ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
 SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, NEW YORK
 REGIONAL OFFICE, SUITE 3515, 1515 BROADWAY, NEW YORK, NEW YORK 10036.
 
    /1/ 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 OF 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/ SUCH METHODS AMONG OTHERS INCLUDE CONDUCTING INFORMATIONAL
 CAMPAIGNS AND PROSPECTING AND CANVASSING FOR PROSPECTIVE ENLISTEES INTO
 THE UNITED STATES ARMY RESERVE, WHICH FUNCTION CONSTITUTES THE PRINCIPAL
 DUTY OF UNIT EMPLOYEES.
 
    /3/ SECTION 12(B) OF THE ORDER PROVIDES:
 
    SEC. 12.  BASIC PROVISIONS OF AGREEMENTS.  EACH AGREEMENT BETWEEN AN
 AGENCY AND A LABOR
 
    ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
 
   .          .          .          .
 
 
    (B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
 ACCORDANCE WITH APPLICABLE LAWS
 
    AND REGULATIONS--
 
   .          .          .          .
 
 
    (5) TO DETERMINE THE METHODS, MEANS, AND PERSONNEL BY WHICH SUCH
 OPERATIONS ARE TO BE
 
    CONDUCTED;  . . .
 
    /4/ THE TERM "METHODS" AS IT APPEARS IN SECTION 12(B)(5) OF THE ORDER
 HAS BEEN DEFINED BY THE COUNCIL TO MEAN "THE PROCEDURES, PROCESSES,
 WAYS, TECHNIQUES, MODES, MANNERS AND SYSTEMS BY WHICH OPERATIONS ARE TO
 BE CONDUCTED-- IN SHORT, HOW OPERATIONS ARE TO BE CONDUCTED." SEE
 TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL AND NAVAL
 PUBLIC WORKS CENTER, NORFOLK, VIRGINIA, 1 FLRC 431, AT P