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

 



[ v03 p8 ]
03:0008(2)CA
The decision of the Authority follows:


 3 FLRA No. 2
 
 PENNSYLVANIA ARMY AND AIR
 NATIONAL GUARD
 Respondent
 
 and
 
 ASSOCIATION OF CIVILIAN TECHNICIANS
 Complainant
 
                                            Assistant Secretary
                                            Case No. 20-06580(CA)
 
                            DECISION AND ORDER
 
    ON AUGUST 27, 1979, ADMINISTRATIVE LAW JUDGE ROBERT J. FELDMAN 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.  THEREAFTER, THE COMPLAINANT FILED
 EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
 ORDER AND THE RESPONDENT FILED A RESPONSE TO THE COMPLAINANT'S
 EXCEPTIONS.
 
    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 RULES AND REGULATIONS
 (44 F.R. 44741, JULY 30, 1979).  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 RULES AND
 REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
 REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT 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 COMPLAINANT'S EXCEPTIONS AND RESPONDENT'S RESPONSE
 TO THE EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW
 JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION.  /1/
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 20-06580(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., APRIL 4, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    DENNIS T. GUISE, ESQUIRE
 
    ASSISTANT ATTORNEY GENERAL
 
    COMMONWEALTH OF PENNSYLVANIA
 
    FORT INDIANTOWN GAP
 
    ANNVILLE, PENNSYLVANIA 17003
 
                            FOR THE RESPONDENT
 
    LEONARD SPEAR, ESQUIRE
 
    MERANZE, KATZ, SPEAR AND WILDERMAN
 
    LEWIS TOWER BUILDING-- 12TH FLOOR
 
    N.E. CORNER, 15TH AND LOCUST STREETS
 
    PHILADELPHIA, PENNSYLVANIA 19102
 
                            FOR THE COMPLAINANT
 
    BEFORE:  ROBERT J. FELDMAN
 
                         ADMINISTRATIVE LAW JUDGE
 
                           RECOMMENDED DECISION
 
    THIS IS AN UNFAIR LABOR PRACTICE PROCEEDING IN WHICH A FORMAL HEARING
 OF RECORD WAS HELD PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED,
 (HEREINAFTER REFERRED TO AS "THE ORDER") AND 29 CFR PART 203.  THE
 DECISION AND RECOMMENDATION THAT FOLLOWS IS ISSUED FOR THE FEDERAL LABOR
 RELATIONS AUTHORITY IN ACCORDANCE WITH THE TRANSITION RULES AND
 REGULATIONS PUBLISHED IN THE FEDERAL REGISTER, VOL. 44, NO. 1, JANUARY
 2, 1979, PP. 5-8.
 
                           STATEMENT OF THE CASE
 
    THE COMPLAINANT ALLEGES THAT RESPONDENT VIOLATED SECTIONS 19(A)(1),
 (2), (3), (5) AND (6) OF THE ORDER IN THAT IT PERMITTED REPRESENTATIVES
 OF THE NATIONAL GUARD ASSOCIATION INSURANCE TRUST AND THE NORTHWESTERN
 LIFE INSURANCE COMPANY TO CONDUCT MEETINGS AND SELL THEIR INSURANCE TO
 THE PERSONNEL EMPLOYED BY RESPONDENT.  IT IS FURTHER ALLEGED THAT THE
 PROFITS FROM THE SALE OF SUCH INSURANCE GO TO THE NATIONAL GUARD
 ASSOCIATION, WHICH, HAS TAKEN THE PUBLIC POSITION THAT RESPONDENT'S
 TECHNICIANS SHOULD BE REMOVED FROM THE SCOPE AND PROVISIONS OF THE
 ORDER.
 
    NONE OF THE DOCUMENTS TRANSMITTED TO THIS OFFICE BY THE REGIONAL
 ADMINISTRATOR CONTAINS ANY REFERENCE TO WHAT DISPOSITION, IF ANY, WAS
 MADE OF THE ALLEGED VIOLATIONS OF SECTIONS 19(A)(2), (3) OR (5) OF THE
 ORDER.  IN HIS NOTICE OF HEARING, HOWEVER, THE REGIONAL ADMINISTRATOR
 REFERS FOR HEARING ONLY THE ALLEGED VIOLATIONS OF SECTIONS 19(A)(1) AND
 (6).  INFERENTIALLY, THEREFORE, IT APPEARS THAT SOME PORTIONS OF THE
 COMPLAINT WERE WITHDRAWN OR SETTLED, OR WERE DISMISSED BY THE REGIONAL
 ADMINISTRATOR, OR PERHAPS SEVERED AND REFERRED BY HIM TO THE ASSISTANT
 SECRETARY UPON STIPULATED FACTS.
 
    WITH RESPECT TO THE ALLEGED VIOLATION OF SECTION 19(A)(3), IT IS
 APPARENT FROM THE COMMENTS OF COUNSEL AND FROM A FOOTNOTE IN
 RESPONDENT'S POST-HEARING BRIEF THAT SO MUCH OF THE COMPLAINT AS CHARGED
 RESPONDENT WITH SPONSORING, CONTROLLING OR ASSISTING A LABOR
 ORGANIZATION WAS DISMISSED BY THE REGIONAL ADMINISTRATOR AND NO REQUEST
 FOR REVIEW THEREOF WAS MADE.  IN ANY EVENT, I CONCLUDE THAT OTHER
 ALLEGED VIOLATIONS HAVE BEEN DISPOSED OF IN ACCORDANCE WITH THE
 PROVISIONS OF 29 CFR 203.7 AND 203.8, AND THAT THE SOLE QUESTION
 REFERRED FOR MY DETERMINATION IS WHETHER THE FACTS AND CIRCUMSTANCES
 ESTABLISHED AT THE HEARING CONSTITUTE A VIOLATION OF SECTION 19(A)(1) OR
 (6), OR BOTH.
 
                             FINDINGS OF FACT
 
    COMPLAINANT IS THE DULY RECOGNIZED EXCLUSIVE BARGAINING AGENT FOR
 CIVILIAN TECHNICIANS IN RESPONDENT'S EMPLOY.  FOR SOME YEARS, MANY OF
 ITS MEMBERS (AND OTHER EMPLOYEES IN THE UNIT) HAD PARTICIPATED IN A
 VOLUNTARY INSURANCE PROGRAM KNOWN AS THE TECHNICIAN PROTECTION PLAN,
 WHICH WAS ADMINISTERED UNDER THE AUSPICES OF THE NATIONAL GUARD
 ASSOCIATION OF THE UNITED STATES (NGAUS) INSURANCE TRUST, WITH THE LIFE
 INSURANCE COMPANY OF NORTH AMERICA AS THE CARRIER.  RESPONDENT PERMITTED
 PREMIUMS UNDER THE PLAN TO BE PAID BY PAYROLL DEDUCTIONS, BUT OTHERWISE
 HAD NO VOICE IN ITS MANAGEMENT OR ADMINISTRATION.
 
    NGAUS IS A NATION-WIDE ORGANIZATION OF NATIONAL GUARD OFFICERS.
 AMONG ITS PURPOSES ARE TO PROTECT AND PROMOTE THE INTERESTS OF GUARDSMEN
 THROUGHOUT THE COUNTRY AND TO MAKE THEIR VIEWS KNOWN TO APPROPRIATE
 FEDERAL AGENCIES AND OFFICIALS.  IN THE CONDUCT OF ITS LEGISLATIVE
 PROGRAM, IT ACTIVELY SUPPORTED A BILL (S. 274) IN THE 95TH CONGRESS TO
 PROHIBIT UNION ORGANIZATION AND MEMBERSHIP IN THE ARMED FORCES, AND ITS
 EXECUTIVE VICE-PRESIDENT TESTIFIED ON ITS BEHALF BEFORE A SUBCOMMITTEE
 OF THE HOUSE ARMED SERVICES COMMITTEE WITH PARTICULAR REFERENCE TO ITS
 ADVOCACY OF THE PROVISIONS THEREIN (LATER DELETED BY AMENDMENT)
 PROHIBITING UNIONIZATION OF NATIONAL GUARD TECHNICIANS.
 
    LISTED AMONG THE ASSETS OF NGAUS IS A RESTRICTED FUND KNOWN AS THE
 CAPITAL IMPROVEMENT FUND, WHICH WAS ESTABLISHED TO PROVIDE FOR
 MAINTENANCE AND IMPROVEMENT OF THE NATIONAL GUARD MEMORIAL BUILDING IN
 WASHINGTON.  ANOTHER RESTRICTED FUND CALLED THE INSURANCE RESERVE
 CONTINGENCY FUND IS USABLE SOLELY FOR THE BENEFIT OF INSUREDS AND IS NOT
 AVAILABLE FOR ANY OTHER PURPOSE.
 
    UNDER DATE OF JULY 28, 1977, RESPONDENT'S PERSONNEL OFFICER, COL.
 NILES, ADVISED THE TECHNICIAN PERSONNEL OFFICE (TPO) THAT ON AUGUST 1,
 1977, THE INSURER OR CARRIER FOR THE TECHNICIAN PROTECTION PLAN WOULD BE
 CHANGED FROM L.I.N.A. TO NORTHWESTERN NATIONAL LIFE INS.  CO., BUT FOR
 THE PRESENT, COVERAGE WOULD NOT BE INTERRUPTED.  ON OCTOBER 21, 1977,
 COL. NILES ADVISED TPO AS FOLLOWS:  (1) DUE TO THE CHANGE OF CARRIERS,
 EACH TECHNICIAN WOULD HAVE TO EXECUTE A NEW AUTHORIZATION FORM TO
 ESTABLISH THE COVERAGE DESIRED;  (2) IN ADDITION TO THE TERM LIFE AND
 DISABILITY INCOME UNDER THE OLD PLAN, PERMANENT LIFE INSURANCE WOULD NOW
 BE AVAILABLE;  AND (3) BETWEEN OCTOBER 31 AND NOVEMBER 11, 1977,
 BRIEFINGS WOULD BE HELD AT NATIONAL GUARD INSTALLATIONS THROUGHOUT THE
 STATE AS PER ATTACHED SCHEDULE, DURING WHICH REPRESENTATIVES OF
 NORTHWESTERN NATIONAL LIFE AND OF TPO WOULD EXPLAIN THE COVERAGES
 AVAILABLE.
 
    AFTER THE BRIEFINGS WERE INITIATED, COL. NILES RECEIVED NOTICE OF A
 UNION OBJECTION TO HOLDING THEM WITHOUT PRIOR CONSULTATION.  NO ACTION
 WAS TAKEN ON THE OBJECTION, HOWEVER, AND THE BRIEFINGS WERE HELD AS
 SCHEDULED.
 
    ALL CIVILIAN TECHNICIANS WERE REQUESTED BY TPO TO ATTEND THE
 BRIEFINGS, WHICH WERE HELD IN VARIOUS FACILITIES OF RESPONDENT DURING
 WORKING HOURS SO AS TO FACILITATE PARTICIPATION BY TECHNICIANS ASSIGNED
 TO EVERY GROUP AT EVERY LOCATION.  UNION OFFICIALS WERE AMONG THOSE WHO
 ATTENDED.  AT EACH SESSION, WHICH WAS CONDUCTED BY A NORTHWESTERN
 NATIONAL LIFE REPRESENTATIVE, ASSISTED BY ONE OR TWO NON-COMMISSIONED
 OFFICERS FROM TPO, A SLIDE PRESENTATION WAS SHOWN AND THE DETAILS OF THE
 INSURANCE AVAILABLE WERE EXPLAINED.  THE SLIDE PRESENTATION, WHICH HAD
 BEEN PRODUCED FOR AND AT THE DIRECTION OF NGAUS, WAS TO ALL INTENTS AND
 PURPOSES A "COMMERCIAL" FOR NGAUS AND ITS TECHNICIAN PROTECTION PLAN.
 IT WAS, OF COURSE, EXTREMELY LAUDATORY OF THE WORK AND ACHIEVEMENTS OF
 NGAUS ON BEHALF OF GUARDSMEN AND TECHNICIANS, NO MENTION BEING MADE OF
 ANY EFFORTS OR ACCOMPLISHMENTS OF COMPLAINANT OR ANY OTHER ORGANIZATION
 IN THE INTERESTS OF THE SAME CONSTITUENCY.
 
    WITH RESPECT TO THE COVERAGE OFFERED, IT WAS MADE CLEAR AT EACH
 BRIEFING THAT BESIDES THE ADDITION OF OPTIONAL PERMANENT LIFE INSURANCE
 FOR TECHNICIANS AND THEIR FAMILIES, TWO SIGNIFICANT CHANGES WERE MADE IN
 THE PROGRAM:  (A) PREMIUMS WERE INCREASED;  AND (B) INSTEAD OF
 EXPERIENCE CREDITS (I.E., DIVIDENDS) BEING DISTRIBUTED TO PARTICIPANTS,
 THEY WOULD BE PAID TO THE HISTORICAL SOCIETY OF THE MILITIA AND NATIONAL
 GUARD (HEREAFTER "HISTORICAL SOCIETY").
 
    THE HISTORICAL SOCIETY IS A NON-PROFIT CHARITABLE AND EDUCATIONAL
 CORPORATION, ORGANIZED IN 1975 UNDER THE LAWS OF THE DISTRICT OF
 COLUMBIA FOR THE DECLARED PURPOSE OF FOSTERING AND ENCOURAGING AN
 ENLIGHTENED PUBLIC APPRECIATION OF THE CONTRIBUTIONS OF THE AMERICAN
 MILITIA IN THE FOUNDING OF THIS NATION AND ITS DEFENSE AGAINST ENEMIES
 FOREIGN AND DOMESTIC, AND OF THE UNIQUE STATUS OF THE NATIONAL GUARD,
 UNDER FEDERAL CONTROL AS RESERVE COMPONENTS OF THE ARMY AND AIR FORCE IN
 TIME OF WAR OR NATIONAL EMERGENCY, AND UNDER STATE CONTROL IN THEIR
 MILITIA STATUS AT ALL OTHER TIMES.  ITS PRIMARY FUNCTION IS TO RAISE
 FUNDS FOR THE MAINTENANCE AND PRESERVATION OF THE NATIONAL GUARD
 MEMORIAL BUILDING IN WASHINGTON.
 
    AT BRIEFING SESSIONS, TECHNICIANS WERE URGED TO SIGN APPLICATIONS FOR
 INSURANCE, OR IN THE ALTERNATIVE, TO SIGN A DECLINATION FORM.  NO
 ATTENDANCE WAS TAKEN, BUT A RECORD WAS MADE OF THE APPLICATIONS AND
 DECLINATION FORMS THEREAFTER RECEIVED.  SUBSEQUENTLY, THOSE WHO HAD
 SUBMITTED NEITHER WERE NOTIFIED THAT THEY MUST SUBMIT ONE OR THE OTHER.
 
                            CONCLUSIONS OF LAW
 
    FROM THE FOREGOING FACTS, THE CONCLUSION IS IRRESISTIBLE THAT
 RESPONDENT SPONSORED THE BRIEFINGS AND ASSISTED NGAUS IN ITS PROMOTION
 OF ITS TECHNICIAN PROTECTION PLAN.  IT APPEARS, HOWEVER, THAT THE
 COMPLAINT WAS DISMISSED WITH RESPECT TO SECTION 19(A)(3) ON THE GROUND
 THAT NGAUS IS NOT A LABOR ORGANIZATION AS DEFINED BY THE ORDER, CITING
 FEDERAL AVIATION ADMINISTRATION, ATLANTA ATC TOWER, A/SLMR NO. 300
 (1973).  MOREOVER, THE CIRCUMSTANCES OF THIS CASE, WHILE INDICATING A
 CALLOUSED DISREGARD OF UNION SENSIBILITIES, MIGHT NOT WARRANT A FINDING
 THAT AIDING THE SOLICITATION OF THE INSURANCE IN QUESTION IS PER SE
 INCONSISTENT WITH THE PURPOSES OF THE ORDER.  SEE DEPARTMENT OF THE AIR
 FORCE, GRISSOM AIR FORCE BASE, PERU, INDIANA, FLRC NO. 77A-77, A/SLMR
 NO. 1057(1978).
 
    IN CONSIDERING WHETHER RESPONDENT INTERFERED WITH, RESTRAINED OR
 COERCED AN EMPLOYEE IN THE EXERCISE OF THE RIGHTS ASSURED BY THE ORDER
 (SECTION 19(A)(1)), ONE MUST BEAR IN MIND THAT NEITHER PARTICIPATION IN
 THE PLAN NOR ATTENDANCE AT THE BRIEFINGS WAS COMPULSORY.  THOUGH IT IS
 REASONABLE TO INFER FROM THE EVIDENCE THAT RESPONDENT URGED ALL
 TECHNICIANS TO DO BOTH, IT HAS NOT BEEN ESTABLISHED THAT ANYONE WAS
 ORDERED TO DO EITHER OR THAT ANY ADVERSE ACTION WAS TAKEN WITH RESPECT
 TO ANY TECHNICIAN WHO FAILED TO COMPLY WITH EITHER REQUEST.
 CONSEQUENTLY, I FIND IT DIFFICULT TO ASCERTAIN WHAT RIGHT, IF ANY,
 ASSURED BY THE ORDER, WAS DENIED OR DIMINISHED BY RESPONDENT'S CONDUCT.
 IT IS TRUE THAT AT THE BRIEFINGS THOSE PRESENT WERE SUBJECTED TO A
 "SALES PITCH" THAT INCLUDED A LAUDATORY DEPICTION OF AN ORGANIZATION
 THAT IS AVOWEDLY "ANTI-MILITARY UNION".  ALTHOUGH THE PRESENTATION MAY
 HAVE OVERSTATED THE CONTRIBUTION OF NGAUS TO THE ADVANCEMENT OF THE
 INTERESTS OF TECHNICIANS AND FAILED TO RECOGNIZE THE EFFORTS OF OTHERS,
 IT CONTAINED NOTHING DEROGATORY TO COMPLAINANT OR ANY OTHER LABOR
 ORGANIZATION.  I RECALL NO TESTIMONY TO THE EFFECT THAT ANYONE WAS
 PREVENTED FROM WALKING OUT OF A BRIEFING IF HE FOUND IT OBJECTIONABLE.
 
    IF THE PROGRAM WERE NOT ENTIRELY VOLUNTARY, THE CHANGE IN THE
 PROVISIONS FOR PAYMENT OF DIVIDENDS MIGHT PRESENT SERIOUS PROBLEMS.
 CERTAINLY IT WOULD BE CLEARLY INCONSISTENT WITH THE PURPOSES OF THE
 ORDER TO REQUIRE EMPLOYEES TO MAKE MONETARY CONTRIBUTIONS TO THE
 HISTORICAL SOCIETY OR ANY SIMILAR ORGANIZATION.  THOUGH THE CORPORATE
 AND FISCAL RELATIONSHIPS BETWEEN THE HISTORICAL SOCIETY AND NGAUS ARE
 NOT CLEARLY SPELLED OUT IN THE RECORD, IT IS NOT UNREASONABLE TO DRAW AN
 INFERENCE THAT THE DIVIDENDS TO BE RECEIVED BY THE HISTORICAL SOCIETY
 WILL BENEFIT NGAUS TO SOME EXTENT BY DIMINISHING, OR PERHAPS
 ELIMINATING, ITS BURDEN OF MAINTAINING THE MEMORIAL BUILDING.  AS A
 RESULT, IT CAN BE SAID THAT TECHNICIANS WHO PARTICIPATE IN THE NEW PLAN
 ARE LIKELY TO CONTRIBUTE INDIRECTLY TO NGAUS.  SINCE NONE OF THEM ARE
 OBLIGED, HOWEVER, TO PARTICIPATE IN THE PLAN (AND IT WAS NOT SHOWN THAT
 SIMILAR COVERAGE IS NOT OTHERWISE AVAILABLE AT COMPARABLE COST), NO SUCH
 CONTRIBUTIONS ARE REQUIRED.
 
    AS TO A REFUSAL TO CONSULT, CONFER OR NEGOTIATE WITH THE RECOGNIZED
 BARGAINING AGENT AS REQUIRED BY THE ORDER (SECTION 19(A)(6)), THERE IS
 NO DOUBT THAT RESPONDENT DECLINED COMPLAINANT'S REQUEST FOR CONSULTATION
 ON THE SUBJECT OF THE BRIEFINGS.  THOUGH RESPONDENT HAD NO POWER TO
 CHANGE THE SELECTION OF A CARRIER, OR TO ALTER ANY OF THE TERMS AND
 CONDITIONS OF THE NEW PLAN, IT WOULD BE OBLIGED UNDER THE ORDER TO
 CONFER WITH RESPECT TO THE IMPACT OR IMPLEMENTATION THEREOF IF IT
 INVOLVED A CHANGE IN EXISTING PERSONNEL POLICIES OR PRACTICES AND OTHER
 MATTERS AFFECTING GENERAL WORKING CONDITIONS.  CF. E.G. ROCKY MOUNTAIN
 ARSENAL, DENVER, COLORADO, A/SLMR NO. 933(1977.
 
    IT IS THE LAST PROVISION ABOVE THAT CONSTITUTES THE STRONGEST
 IMPEDIMENT TO FINDING AN UNFAIR LABOR PRACTICE IN THIS CASE.  A CHANGE
 IN PREMIUM RATES OR IN DIVIDEND PAYMENTS OF A VOLUNTARY INSURANCE
 PROGRAM NOT ADMINISTERED BY A FEDERAL AGENCY OR ACTIVITY DOES NOT SEEM
 TO ME TO BE THE KIND OF PERSONNEL ITEM OR THE KIND OF MATTER AFFECTING
 WORKING CONDITIONS AS TO WHICH PRIOR CONSULTATION IS REQUIRED BY THE
 ORDER.  SURELY, A GOVERNMENT AGENCY DOES NOT HAVE TO CONFER WITH ITS
 UNION EVERY TIME THAT BLUE CROSS OR AETNA RAISES ITS RATES, EVEN THOUGH
 THE AGENCY MAY PERMIT, OR EVEN ENCOURAGE, PAYMENT OF PREMIUMS BY PAYROLL
 DEDUCTION, AND EVEN THOUGH THE RATE INCREASE HAS AN OBVIOUS IMPACT ON
 PARTICIPATING EMPLOYEES.
 
    IT IS MOST UNFORTUNATE, OF COURSE, THAT IN THIS INSTANCE THE CHANGE
 MAY BE FOUND HIGHLY OBJECTIONABLE BY UNION MEMBERS BECAUSE OF THE
 POSITION TAKEN BY NGAUS AGAINST THE RIGHT OF NATIONAL GUARD TECHNICIANS
 TO ORGANIZE.  PERSISTENT PROTESTS-- EVEN A BOYCOTT OF THE PLAN-- WOULD
 BE UNDERSTANDABLE AND PERHAPS JUSTIFIED.  YET, IN MY VIEW, THE RECORD
 HERE DOES NOT SUPPORT A CONCLUSION THAT RESPONDENT HAS VIOLATED SECTIONS
 19(A)(1) OR (6) OF THE ORDER.  THOUGH RESPONDENT'S ACTIVE SUPPORT OF
 NGAUS VIS-A-VIS COMPLAINANT IS CLEARLY NOT CONSONANT WITH THE FOSTERING
 OF GOOD LABOR-MANAGEMENT RELATIONS, AND IS THUS FOUND CENSURABLE, I
 CANNOT FIND THAT IT HAS COMMITTED AN UNFAIR LABOR PRACTICE WITHIN THE
 CONTEMPLATION OF THE ORDER.
 
    WHETHER THE FACTS SHOWN HERE CONSTITUTE A VIOLATION OF ANY PROVISION
 OF THE TECHNICIAN PERSONNEL MANUAL OR OTHER INTERNAL REGULATION IS NOT
 MATERIAL IN THIS PROCEEDING.  THE MOTION FOR ADMINISTRATIVE LEAVE ON
 BEHALF OF THREE WITNESSES IS DENIED ON THE GROUND THAT THEIR APPEARANCE
 AT THE HEARING WAS NOT ESSENTIAL.
 
                              RECOMMENDATION
 
    IN VIEW OF THE FOREGOING, I RECOMMEND THAT THE COMPLAINT HEREIN BE
 DISMISSED.
 
                             ROBERT J. FELDMAN
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  AUGUST 27, 1979
 
    WASHINGTON, D.C.
 
    /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 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.