Division of Military and Naval Affairs State of New York (Albany, NY) (Respondent) and New York State Council of Association of Civilian Technicians, Inc. (Charging Party) 

 



[ v07 p321 ]
07:0321(51)CA
The decision of the Authority follows:


 7 FLRA No. 51
 
 DIVISION OF MILITARY AND NAVAL AFFAIRS
 STATE OF NEW YORK, (ALBANY, NEW YORK)
 Respondent
 
 and
 
 NEW YORK STATE COUNCIL OF ASSOCIATION
 OF CIVILIAN TECHNICIANS, INC.
 Charging Party
 
                                            Case Nos.1-CA-195 
                                                     1-CA-196
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED RECOMMENDED DECISION
 AND ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT
 HAD NOT ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES AND ORDERED THAT THE
 CASE BE DISMISSED IN ITS ENTIRETY.  THEREAFTER THE GENERAL COUNSEL FILED
 EXCEPTIONS WITH RESPECT TO THE JUDGE'S DECISION AND ORDER.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
 OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
 COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE
 JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD, THE
 AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS, AND
 RECOMMENDATION.  /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NOS. 1-CA195 AND
 1-CA-196 BE, AND THEY HEREBY ARE, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 15, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
   
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
 RICHARD E. ROWLANDS, ESQUIRE
          FOR THE RESPONDENT
 
 PAUL E. STANZLER, ESQUIRE
          FOR THE GENERAL COUNSEL
 
 BEFORE:  LOUIS SCALZO
          ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE), 92 STAT.1191, 5 U.S.C. 7101 ET SEQ.,
 AND THE RULES AND REGULATIONS ISSUED THEREUNDER.  IT WAS INSTITUTED BY
 THE ISSUANCE OF AN ORDER CONSOLIDATING CASES, COMPLAINT, AND NOTICE OF
 HEARING ON FEBRUARY 29, 1980, BASED UPON CHARGES FILED ON NOVEMBER 14,
 1979, AND FEBRUARY 25, 1980.  THE COMPLAINT WAS AMENDED ON THE DATE OF
 HEARING.  /2/
 
    IN CASE NO. 1-CA-196 IT WAS ALLEGED THAT THE RESPONDENT HAS, SINCE ON
 OR ABOUT NOVEMBER 5, 1979, ENGAGED IN A COURSE OF BAD FAITH BARGAINING
 WITH THE CHARGING PARTY (ALSO REFERRED TO HEREIN AS THE UNION, OR ACT)
 IN VIOLATION OF SECTIONS 7116(A)(1) AND (5) OF THE STATUTE, BY DEMANDING
 THE RENEGOTIATION OF CERTAIN CONTRACT ARTICLES PREVIOUSLY AGREED TO
 DURING NEGOTIATIONS PURSUED BY THE PARTIES PRIOR TO THE SUBMISSION OF
 THREE UNRESOLVED ISSUES TO THE FEDERAL SERVICE IMPASSES PANEL (PANEL);
 BY SEEKING TO AVOID OR DELAY REACHING AN AGREEMENT BY DEMANDING THE
 RENEGOTIATION OF ARTICLES PREVIOUSLY AGREED TO;  BY ATTEMPTING TO
 UTILIZE THE PROCESSES OF THE PANEL TO AVOID THE OBLIGATION TO NEGOTIATE;
  AND BY "OTHERWISE ENGAGING IN A COURSE OF CONDUCT CALCULATED TO
 FRUSTRATE THE UNION'S ATTEMPTS TO CONSUMMATE A MEANINGFUL COLLECTIVE
 BARGAINING AGREEMENT." /3/
 
    IN CASE NO. 1-CA-195 IT WAS ALLEGED THAT THE RESPONDENT, ON OR ABOUT
 NOVEMBER 5 AND 6, 1979, VIOLATED SECTIONS 7116(A)(1) AND (8) OF THE
 STATUTE BY FAILING OR REFUSING TO GRANT OFFICIAL TIME TO EMPLOYEE
 MEMBERS OF THE UNION'S BARGAINING COMMITTEE FOR TIME SPENT IN ACTIVITY
 "REASONABLY RELATED" TO THE NEGOTIATION OF A COLLECTIVE BARGAINING
 AGREEMENT.  DURING THE HEARING COUNSEL FOR THE GENERAL COUNSEL
 STIPULATED THAT OFFICIAL TIME CLAIMED RELATED SOLELY TO A THREE TO FOUR
 HOUR PERIOD OF TIME DURING THE AFTERNOON OF NOVEMBER 5, 1979.
 
    IN RESPONSE TO THESE ALLEGATIONS COUNSEL REPRESENTING THE RESPONDENT
 ARGUES THAT THE EVIDENCE FAILED TO ESTABLISH THAT THE RESPONDENT ENGAGED
 IN A COURSE OF BAD FAITH BARGAINING AS ALLEGED.  COUNSEL FOR THE
 RESPONDENT ALSO TAKES THE POSITION THAT THE REFUSAL TO GRANT OFFICIAL
 TIME TO EMPLOYEE MEMBERS OF THE UNION'S BARGAINING COMMITTEE FOR TIME
 SPENT IN PREPARING FOR CONTRACT NEGOTIATIONS WAS IN ACCORDANCE WITH A
 LONGSTANDING PRIOR PRACTICE OF THE PARTIES;  AND THAT THE GRANTING OF
 OFFICIAL TIME FOR SUCH PURPOSE IS NOT REQUIRED BY SEC.  7131(A) OF THE
 STATUTE.
 
    THE RESPONDENT AND THE GENERAL COUNSEL, FEDERAL LABOR RELATIONS
 AUTHORITY, WERE REPRESENTED BY COUNSEL AND THE PARTIES WERE AFFORDED
 FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, AND EXAMINE AND
 CROSS-EXAMINE WITNESSES.  POST-HEARING BRIEFS WERE RECEIVED FROM COUNSEL
 REPRESENTING THE GENERAL COUNSEL AND COUNSEL REPRESENTING THE
 RESPONDENT.  THESE HAVE BEEN DULY CONSIDERED.  BASED UPON THE ENTIRE
 RECORD HEREIN, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR
 DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE ADDUCED AT THE
 HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF FACT,
 CONCLUSIONS AND RECOMMENDATION:
 
         CONTRACT NEGOTIATIONS IN 1977 AND ISSUES SUBMITTED TO THE
 
                      FEDERAL SERVICE IMPASSES PANEL
 
    THE UNION IS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ALL NEW YORK
 ARMY AND AIR FORCE NATIONAL GUARD TECHNICIANS EXCEPT SUPERVISORS,
 MANAGEMENT OFFICIALS, AND TECHNICIANS ENGAGED IN NON-CLERICAL PERSONNEL
 WORK.  /4/ A TWO-YEAR COLLECTIVE BARGAINING AGREEMENT EXECUTED BY THE
 PARTIES EXPIRED ON OCTOBER 3, 1977 (JT.EXH.29).  THE PARTIES HAVE SINCE
 CONTINUED TO OPERATE UNDER THE PROVISIONS OF THE AGREEMENT.  IT WAS
 STIPULATED DURING THE HEARING THAT THE AGREEMENT HAS GOVERNED THEIR
 LABOR RELATIONS DURING ALL TIMES DEEMED PERTINENT IN THIS CASE.
 
    PRELIMINARY NEGOTIATIONS DESIGNED TO PRODUCE A NEW AGREEMENT
 COMMENCED ON AUGUST 3, 1977.  FREDERICK S. TEDESCO, NEW YORK STATE
 CHAIRMAN OF ACT, SERVED AS THE CHIEF NEGOTIATOR FOR THE UNION.  COLONEL
 JOHN E. BLEWETT WAS THE CHIEF NEGOTIATOR FOR THE RESPONDENT, AND HAS
 SINCE HELD THE POSITION.  AT THE AUGUST 3, 1977 MEETING AND THREE OTHER
 MEETINGS SHORTLY THEREAFTER, THE PARTIES ENDEAVORED TO ESTABLISH GROUND
 RULES FOR THE 1977 NEGOTIATIONS BUT WERE UNABLE TO REACH AGREEMENT ON
 THE EFFECT OF ARTICLES NEGOTIATED.  THE UNION FELT THAT THE PARTIES
 SHOULD EXECUTE AN AGREEMENT ON ALL ARTICLES NEGOTIATED WITH THE
 EXCEPTION OF THOSE INVOLVING IMPASSE ISSUES.  THE RESPONDENT TOOK THE
 POSITION THAT THERE COULD BE NO CONTRACT UNTIL ALL ISSUES WERE RESOLVED
 BY THE PARTIES.  THE PARTIES ENTERED INTO NEGOTIATIONS WITHOUT RESOLVING
 THIS QUESTION.  THE GROUND RULES, FINALLY AGREED UPON ON OCTOBER 14,
 1977, REFLECT NO REFERENCE TO THE LEGAL EFFECT TO BE GIVEN TO EACH
 CONTRACT ARTICLE FOLLOWING TENTATIVE AGREEMENT (JT.EXH.31).  THESE RULES
 DID PROVIDE THAT THE OLD CONTRACT LANGUAGE WOULD BE USED AS A BASIS FOR
 DEVELOPING A NEW AGREEMENT.  AS OF THE FALL OF 1977, THE PARTIES HAD
 TENTATIVELY AGREED UPON A NUMBER OF CONTRACT ARTICLES.
 
    ON MARCH 27, 1978, THE UNION REQUESTED THE PANEL TO CONSIDER THREE
 IMPASSE ISSUES UNDER SECTION 17 OF EXECUTIVE ORDER 11491.  THESE RELATED
 TO THE TERMS UNDER WHICH THE COLLECTIVE BARGAINING AGREEMENT WOULD BE
 EXTENDED;  PROPOSED GUIDELINES RELATING TO THE PREPARATION OF TECHNICIAN
 PERFORMANCE RATINGS;  AND ISSUES RELATING TO THE WEARING OF MILITARY
 UNIFORMS BY TECHNICIANS.  ON JUNE 7, 1978, THE PARTIES SUPPLIED TO THE
 PANEL'S FACTFINDER, CONTRACT ARTICLES THAT THE PARTIES PREVIOUSLY HAD
 "TENTATIVELY AGREED" UPON, AND REPRESENTED TO THE FACTFINDER THAT THE
 ARTICLES HAD BEEN SIGNED, BUT WERE NOT IN EFFECT (JT.EXH.1).
 
    WHILE THE PANEL WAS CONSIDERING THE ISSUES SUBMITTED, THE PARTIES
 CARRIED ON DISCUSSIONS CONCERNING THE IMPLEMENTATION OF NEGOTIATED MERIT
 PROMOTION PROVISIONS TENTATIVELY AGREED TO IN 1977.  THE UNION TOOK THE
 POSITION THAT THERE COULD BE NO IMPLEMENTATION UNTIL THE ENTIRE
 AGREEMENT WAS EXECUTED BY THE PARTIES.  ON THIS ISSUE MR. TEDESCO WROTE
 TO THE RESPONDENT ON AUGUST 24, 1978, AND STATED:  "THIS IS ONE OF THE
 NEGOTIATED ITEMS WHICH ARE AMONG THE ITEMS THAT HAVE BEEN AGREED TO.
 THIS CANNOT BE PUT INTO EFFECT UNTIL MANAGEMENT IS READY TO SIGN THE
 CONTRACT." (TR. 130, R.EXH. 1).
 
    ON JANUARY 9, 1979, THE PANEL ORDERED THE RESPONDENT TO WITHDRAW
 RESPONDENT'S PROPOSAL RELATING TO THE EXTENSION OF THE COLLECTIVE
 BARGAINING AGREEMENT;  ORDERED THE PARTIES TO ADOPT THE UNION PROPOSAL
 RELATING TO PERFORMANCE RATINGS;  TO ADOPT INTO THEIR COLLECTIVE
 BARGAINING AGREEMENT CERTAIN LANGUAGE RELATING TO THE WEARING OF THE
 UNIFORM;  AND TO NEGOTIATE CONCERNING THE CIRCUMSTANCES AND OCCASIONS
 FOR WHICH THE WEARING OF THE MILITARY UNIFORM MAY BE REQUIRED (JT.EXH.
 30).  SHORTLY AFTER THE ISSUANCE OF THE PANEL'S DECISION AND ORDER THE
 RESPONDENT WROTE TO THE PANEL TO ADVISE THAT THE RESPONDENT ACCEPTED THE
 PANEL'S DETERMINATIONS REGARDING WITHDRAWAL OF RESPONDENT'S PROPOSAL
 WITH RESPECT TO THE EXTENSION OF THE CONTRACT, AND CONCERNING THE
 ADOPTION OF THE UNION'S PROPOSAL REGARDING TECHNICIAN PERFORMANCE
 RATINGS.  HOWEVER, THE RESPONDENT REFUSED TO COMPLY WITH THE PANEL'S
 DECISION AND ORDER WITH REGARD TO ISSUES PERTAINING TO THE WEARING OF
 THE MILITARY UNIFORM.  THE UNION WAS ADVISED IN WRITING OF THE
 RESPONDENT'S DECISION TO ACCEPT THOSE PORTIONS OF THE PANEL'S DECISION
 AND ORDER MENTIONED (TR. 78).  THE FOLLOWING TESTIMONY OF COLONEL
 BLEWETT REFLECTS PROOF OF THE RESPONDENT'S ACQUIESCENCE REGARDING
 PORTIONS OF THE PANEL'S DECISION AND ORDER WHICH DID NOT PERTAIN TO THE
 WEARING OF THE MILITARY UNIFORM:
 
    Q.  AFTER MANAGEMENT RECEIVED THIS DECISION AND ORDER, WHAT DID YOU
 DO THEN?
 
    A.  WE INFORMED THE IMPASSE PANEL THAT WE ACCEPTED THE TWO AND WE
 ALSO INFORMED THE UNION
 
    THAT WE ACCEPTED THE TWO;  THE EXTENSION OF THE CONTRACT WE WOULD
 WITHDRAW AND ALSO THAT WE
 
    ACCEPTED THE PROPOSAL ON THE PERFORMANCE RATINGS, AND THAT THE
 UNIFORM ISSUE WAS GOING TO GO
 
    TO APPEAL . . . (TR. 78).  /5/
 
    THEREAFTER, ON THE BASIS OF A MARCH 15, 1979 CHARGE AND AN AMENDED
 CHARGE FILED ON OCTOBER 17, 1979, THE UNION ISSUED AN UNFAIR LABOR
 PRACTICE COMPLAINT IN CASE NO.  1-CA-19, ALLEGING VIOLATIONS OF SECTIONS
 7116(A)(1) AND (6) OF THE STATUTE PREDICATED UPON THE RESPONDENT'S
 REFUSAL TO COMPLY WITH THE LIMITED PORTION OF THE PANEL'S DECISION AND
 ORDER WHICH REQUIRED THE UNION TO ADOPT INTO THEIR COLLECTIVE BARGAINING
 AGREEMENT CERTAIN LANGUAGE RELATIVE TO THE WEARING OF THE UNIFORM.  /6/
 
         EVENTS LEADING TO RESUMPTION OF CONTRACT NEGOTIATIONS IN
 
                                   1979
 
    ON MARCH 29, 1979, COLONEL BLEWETT RECEIVED A LETTER FROM MR.
 FREDERICK YOUNG WHEREIN MR. YOUNG ADVISED THAT HE HAD BECOME THE CHIEF
 NEGOTIATOR FOR THE UNION.  MR.  YOUNG INDICATED THAT HE WISHED TO RETURN
 TO THE BARGAINING TABLE TO RESUME CONTRACT NEGOTIATIONS.  ON APRIL 12,
 1979, COLONEL BLEWETT WROTE TO YOUNG TO ADVISE THAT HE WOULD RESUME
 BARGAINING.  SUBSEQUENTLY, ON MAY 15, 1979, MR. TEDESCO, WHO HAD BEEN
 THE CHIEF NEGOTIATOR, AND WHO WAS THE STATE CHAIRMAN OF ACT, FORWARDED
 EIGHT PROPOSALS TO MANAGEMENT, OSTENSIBLY DEALING WITH IMPACT AND
 IMPLEMENTATION BARGAINING RELATING TO A CONVERSION TO FULL TIME MILITARY
 (CFTM) TEST PROGRAM (JT.EXHS. 2 AND 3).  /7/ THE LETTER WAS ADDRESSED TO
 COLONEL CLARENCE WALLACE, TECHNICIAN PERSONNEL OFFICER, BY MR. TEDESCO.
 ON MAY 21, 1979, COLONEL WALLACE FORWARDED IT TO COLONEL BLEWETT,
 RESPONDENT'S CHIEF NEGOTIATOR.  THE PROPOSALS FORWARDED TO THE
 RESPONDENT IN CONNECTION WITH THE CFTM TEST PROGRAM WOULD HAVE OPERATED
 TO GENERATE SIGNIFICANT CHANGES IN A NUMBER OF CONTRACT ARTICLES
 TENTATIVELY AGREED TO BY THE PARTIES DURING CONTRACT NEGOTIATIONS IN THE
 FALL OF 1977.  /8/
 
    ON MAY 17, 1979, MANAGEMENT AND THE UNION EXECUTED A MEMORANDUM OF
 AGREEMENT DEALING WITH UNION DUES DEDUCTIONS.  THE AGREEMENT WAS
 REQUIRED BECAUSE THE STATUTE HAD THE EFFECT OF ABROGATING ARTICLE 20,
 TENTATIVELY AGREED TO IN 1977 (JT.EXH. 26).  THE LAST PARAGRAPH OF THE
 AGREEMENT REFLECTS AN INTENT THAT THE AGREEMENT BE SUBJECT TO CHANGE "AS
 A RESULT OF FUTURE NEGOTIATIONS."
 
    ON JUNE 5, 1979, MANAGEMENT, THROUGH COLONEL WALLACE, WROTE TO MR.
 TEDESCO IN RESPONSE TO THE EIGHT PROPOSALS FORWARDED CONCERNING THE
 CFTM
 PROGRAM (JT.EXH. 4).  IN PARAGRAPH (C) OF THE LETTER COLONEL WALLACE
 SPECIFICALLY STATED THAT THE FIFTH UNION PROPOSAL "SHOULD PROBABLY BE
 INTRODUCED AT NORMAL NEGOTIATIONS AS IT IS NOT GERMANE TO CFTM
 EXCLUSIVELY." OTHER PROPOSALS WERE SAID TO BE NOT NEGOTIABLE.  HOWEVER,
 IN THIS SAME LETTER MANAGEMENT ATTEMPTED TO SET UP A MEETING WITH MR.
 TEDESCO TO DISCUSS UNION PROPOSALS.  MR. TEDESCO REPLIED ON JUNE 9,
 1979, STATING THAT THE UNION INTENDED TO PETITION THE AUTHORITY FOR THE
 PURPOSE OF OBTAINING A DETERMINATION CONCERNING THE NEGOTIABILITY OF THE
 EIGHT PROPOSALS FORWARDED BY MR. TEDESCO ON MAY 15, 1979 (JT.EXH.  5).
 
    ON JUNE 13, 1979, COLONEL BLEWETT RECEIVED A LETTER FROM FREDERICK R.
 YOUNG (JT.EXH. 6).  YOUNG'S SIGNATURE INDICATED THAT HE SIGNED THE
 LETTER AS THE UNION'S CHIEF NEGOTIATOR.  HE FORWARDED TWO PROPOSALS
 WHICH HE ASSERTED HAD BEEN DISCUSSED BY MR. TEDESCO WITH RESPONDENT'S
 TECHNICIAN PERSONNEL OFFICE.  THE FIRST SET FORTH THE UNION PROPOSAL
 RELATING TO PERFORMANCE RATINGS WHICH THE PANEL HAD PREVIOUSLY ORDERED
 THE PARTIES TO ADOPT, AND THE SECOND DEALT WITH ISSUES PERTAINING TO THE
 WEARING OF THE MILITARY UNIFORM.  MR. YOUNG ALSO STATED:  "FURTHER, IN
 ADDITION TO THE ABOVE, WE SHOULD DISCUSS THOSE ITEMS THAT REQUIRE CHANGE
 DUE TO THE CIVIL SERVICE REFORM ACT."
 
    ON JUNE 19, 1979, COLONEL WALLACE REPLIED TO MR. YOUNG'S JUNE 13TH
 LETTER AND STATED IN PART:  "SIMULTANEOUSLY, THIS DIVISION HAS BEEN
 RECEIVING PROPOSALS FROM THE STATE CHAIRMAN OF ACT, INC., ON IDENTICAL
 ISSUES.  CONSEQUENTLY, WE ARE IN A QUANDARY AS TO WHOM TO RESPOND TO AND
 WITH WHOM TO ARRANGE FOR NEGOTIATIONS." (JT.EXH. 7).  MAJOR GENERAL VITO
 J. CASTELLANO, A REPRESENTATIVE OF THE RESPONDENT, RECEIVED A LETTER
 RESPONSE DATED JUNE 22, 1979, FROM MR. TEDESCO (JT.EXH. 8).  MR. TEDESCO
 STATED THAT HE WAS THE "CHIEF NEGOTIATOR" FOR THE UNION.  HE THEN
 REFERRED TO COLONEL WALLACE'S JUNE 19, 1979, LETTER AND STATED THAT
 THERE WERE TWO SEPARATE ONGOING NEGOTIATIONS, THAT IS NEGOTIATIONS
 RELATING TO THE CONTRACT AND NEGOTIATIONS PERTAINING TO THE
 IMPLEMENTATION OF THE CFTM TEST PROGRAM.  HE ALSO TOOK THE POSITION THAT
 THERE WERE ONLY THREE ITEMS TO BE COMPLETED IN THE CONTRACT
 NEGOTIATIONS, BUT THAT IT WAS NECESSARY TO MAKE ALL CHANGES REQUIRED BY
 THE CIVIL SERVICE REFORM ACT.
 
    ON JULY 2, 1979, COLONEL WALLACE RESPONDED WITH A LETTER TO MR.
 TEDESCO (JT.EXH. 9).  HE ATTEMPTED TO CLARIFY THE CONFUSION AS TO THE
 IDENTITY OF THE CHIEF NEGOTIATOR FOR ACT.  HE ALSO NOTED, "(Y)OU CITED
 THERE ARE ONLY THREE ISSUES TO RESOLVE IN THE PENDING NEGOTIATIONS TO
 THE AGREEMENT THAT EXPIRED IN OCTOBER OF 1977, WHILE MAKING THE CHANGES
 REQUIRED AS THE RESULT OF PL 95-454;  THE TASK IS NO SMALL ONE." HE WENT
 ON TO STATE:  "YOUR RESPONSE OF 22 JUNE 1979 HAS NOT CLARIFIED THE
 PRESENT STATUS OF NEGOTIATIONS, WHERE APPLICABLE.  IN YOUR REQUEST TO
 NEGOTIATE EIGHT ITEMS AS THE RESULT OF CONVERSION TO FULL TIME MILITARY
 (TEST) YOU HAVE INCLUDED ISSUES THAT ARE COMMON TO THE NORMAL
 NEGOTIATION PROCEDURE. WITH WHOM WILL THESE ISSUES BE RESOLVED, YOURSELF
 OR THE UNION APPOINTED CHIEF NEGOTIATOR?" IN RESPONSE TO JOINT EXHIBIT
 9, MR. YOUNG CORRESPONDED WITH COLONEL BLEWETT ON JULY 28, 1979, STATING
 THAT "I AM THE SOLE REPRESENTATIVE OF THE ASSOCIATION FOR MATTERS
 RELATING TO CONTRACT NEGOTIATIONS." (JT.EXH. 10).  IN THIS LETTER MR.
 YOUNG FORWARDED PROPOSALS DEALING WITH THE PANEL MANDATE ON TECHNICIAN
 PERFORMANCE RATINGS AND ISSUES RELATING TO THE WEARING OF THE MILITARY
 UNIFORM.  HE ALSO SUBMITTED TWO ADDITIONAL REPLACEMENT ARTICLES FOR
 ARTICLE 12 (GRIEVANCE PROCEDURE) AND ARTICLE 17 (ARBITRATION) IN AN
 EFFORT "TO BRING THE AGREEMENT INTO LINE WITH TITLE 7 OF THE CIVIL
 SERVICE REFORM ACT." AT THE END OF THIS LETTER MR. YOUNG MADE TWO
 REQUESTS TO MANAGEMENT:  "FIRST, THAT WE RETURN TO THE BARGAINING TABLE
 SOMETIME DURING THE PERIOD OF 3-15 SEPTEMBER 1979.  LASTLY THAT I BE
 FURNISHED ANY COUNTER-PROPOSALS TEN (10) DAYS PRIOR TO ANY ESTABLISHED
 MEETING DATE."
 
    ON AUGUST 1, 1979, COLONEL BLEWETT RESPONDED TO MR. YOUNG'S JULY 28TH
 LETTER (JT.EXH. 11).  COLONEL BLEWETT SUGGESTED THAT THE PARTIES MEET
 PRIOR TO INSTITUTING ACTUAL NEGOTIATIONS IN ORDER TO ESTABLISH NECESSARY
 GROUND RULES.  HE WENT ON TO SAY, "I VIEW SUCH A MEETING AS ABSOLUTELY
 NECESSARY DUE TO IMPLEMENTATION OF PL 95-454, THE RESULT OF WHICH WILL
 ENTAIL SIGNIFICANT CHANGES TO PREVIOUS AGREEMENTS, AND THE FACT THAT YOU
 ARE THE NEWLY APPOINTED CHIEF NEGOTIATOR FOR THE UNION.  BOTH OF THESE
 OCCURRENCES WILL IMPACT UPON THE NEGOTIATION PROCESS." COLONEL BLEWETT
 ALSO SAID:  "ADDITIONALLY, AT THE PRESENT TIME AS RECENTLY AS 24 JULY
 1979 THE STATE CHAIRMAN REMAINS ADAMANT THAT HE WILL 'NEGOTIATE MATTERS
 RELATIVE TO CFTM, RIF PROCEDURES, ETC.' AND MAINTAINS THAT SUCH
 NEGOTIATION, BY HIM, IS APPROPRIATE.  I WOULD HOPE THAT ALL ISSUES FOR
 WHICH NEGOTIATION IS APPROPRIATE WOULD SURFACE DURING OUR NEGOTIATIONS.
 RESOLUTION AS TO WHOM WE WILL BE DEALING WITH MUST BE LEFT IN YOUR HANDS
 AT THIS JUNCTURE."
 
    ON SEPTEMBER 13, 1979, REPRESENTATIVES OF THE UNION AND MANAGEMENT
 MET TO DISCUSS FUTURE NEGOTIATIONS.  MR. YOUNG AND MR. TEDESCO
 REPRESENTED THE UNION, AND COLONEL BLEWETT, COLONEL WALLACE, COLONEL
 BECK AND MR. ROWLANDS REPRESENTED THE RESPONDENT.  THE RESPONDENT WAS
 INFORMED THAT MR. YOUNG WAS THE CHIEF NEGOTIATOR, AND THAT HE WOULD
 SPEAK FOR THE UNION DURING NEGOTIATIONS.  /9/ AT THIS MEETING A LETTER
 DATED SEPTEMBER 13, 1979, ADDRESSED TO THE "CHIEF NEGOTIATOR" BY COLONEL
 BLEWETT WAS GIVEN TO MR. YOU (JT.EX. 12).  THE LETTER CONTAINED A
 COUNTERPROPOSAL RELEVANT TO TECHNICIAN PERFORMANCE RATINGS AND A
 STATEMENT RELATIVE TO THE UNION'S PROPOSAL RELATING TO THE WEARING OF
 THE MILITARY UNIFORM.  /10/ THE UNION OBJECTED TO THE PROPOSAL BECAUSE
 IT REQUIRED THE UNION TO ACCEPT THE CONTENT OF FUTURE REGULATORY
 ISSUANCES (TR. 40-41, 86-87).  THE RESPONDENT DID NOT REFUSE TO ACCEPT
 THE PANEL'S LANGUAGE REGARDING TECHNICIAN PERFORMANCE RATINGS (TR. 86),
 AND MR. YOUNG ACKNOWLEDGED THAT HE WAS TOLD THAT THE RESPONDENT WOULD
 ABIDE BY THE DECISION AND ORDER OF THE PANEL ON ISSUES OTHER THAN THE
 ONE DEALING WITH THE WEARING OF THE MILITARY UNIFORM, AND FURTHER THAT
 HE HAD BEEN TOLD THIS REPEATEDLY BY MANAGEMENT (TR. 37).
 
    RESPONDENT'S SEPTEMBER 13, 1979 LETTER FURTHER STATED THAT
 MANAGEMENT'S COUNTERPROPOSAL TO THE UNION'S PROPOSAL RELATIVE TO
 GRIEVANCE PROCEDURES WOULD BE FORWARDED TO THE UNION PRIOR TO FORMAL
 NEGOTIATIONS, AND THAT "THESE ISSUES, AS WELL AS OTHER SUBSTANTIVE AREAS
 IMPACTED BY PUBLIC LAW 95-454, MAY BE ADDRESSED IN DEPTH DURING
 NEGOTIATIONS." THE PARTIES DISCUSSED DISPOSITION OF THE EIGHT CFTM TEST
 PROGRAM ISSUES RAISED BY MR. TEDESCO IN HIS MAY 15, 1979 LETTER TO
 COLONEL WALLACE.  COLONEL BLEWETT TOOK THE POSITION THAT THE CFTM TEST
 PROGRAM SHOULD NOT PLAY A ROLE DURING CONTRACT NEGOTIATIONS.  THE UNION
 DISAGREED AND FELT THAT THE CFTM TEST PROGRAM SHOULD BE MADE THE SUBJECT
 OF NEGOTIATIONS (TR. 144).
 
    AT THE SEPTEMBER 13TH MEETING THE UNION INFORMED RESPONDENT'S
 REPRESENTATIVES THAT ARTICLES TENTATIVELY AGREED TO IN 1977 WERE BINDING
 ON MANAGEMENT BECAUSE THEY HAD BEEN INITIALED BY MR. TEDESCO AND COLONEL
 BLEWETT.  MANAGEMENT DENIED THAT INITIALING DURING THE EARLIER 1977
 NEGOTIATIONS HAD SUCH AN EFFECT.  /11/ ALSO, MANAGEMENT TOOK THE
 POSITION THAT IT COULD, IF IT SO DESIRED, RETURN TO ANY OF THE ARTICLES
 INITIALED BY THE PARTIES IN 1977 (TR. 84).  MANAGEMENT EXPRESSED THE
 DESIRE TO REVIEW THE ENTIRE CONTRACT IN THE LIGHT OF CHANGES WHICH
 OCCURRED OVER THE PERIOD INTERVENING AFTER THE FALL OF 1977.  ADDITIONAL
 GROUND RULES CONCERNING THE CONTRACT NEGOTIATIONS WERE DISCUSSED, AND
 NEGOTIATIONS WERE SCHEDULED TO BEGIN ON NOVEMBER 5, 1979.
 
    ON SEPTEMBER 13TH, IMMEDIATELY AFTER THE MEETING, COLONEL BLEWETT
 WROTE TO MR. YOUNG TO OUTLINE HIS VIEW OF AREAS OF AGREEMENT REACHED
 DURING THE MEETING.  (G.C.EXH.  2, TR. 105-106).  IN THE LETTER COLONEL
 BLEWETT NOTED THAT MR. YOUNG HAD ADVISED DURING THE MEETING "THAT THE
 UNION HAS NO OTHER PROPOSALS TO BE SUBMITTED FOR CONSIDERATION AT THIS
 TIME OTHER THAN THE THREE ALREADY RECEIVED BY (MR. YOUNG'S) . . . LETTER
 OF 28 JULY 1979."
 
    THE LETTER ALSO INDICATED THAT "THE ISSUE OF CONVERSION TO FULL TIME
 MILITARY . . . PROGRAM WAS RAISED AND IT WAS MUTUALLY AGREED THAT IT WAS
 NOT SUITABLE FOR NEGOTIATIONS." NEITHER THE LETTER NOR OTHER PORTIONS OF
 THE RECORD INDICATE WHETHER REFERENCE WAS BEING MADE TO THE DECISION TO
 IMPLEMENT THE CFTM TEST PROGRAM, THE IMPACT AND IMPLEMENTATION OF THE
 PROGRAM, OR BOTH.  HOWEVER, THE RECORD DOES CLEARLY SHOW THAT THE UNION,
 BECAUSE OF THE CFTM TEST PROGRAM, ACTIVELY PURSUED EFFORTS TO MODIFY
 ARTICLES PREVIOUSLY MADE THE SUBJECT OF TENTATIVE AGREEMENT (TR. 144,
 JT.EXHS. 2, 4, 5, 6, 7, AND 8).  IN CLOSING COLONEL BLEWETT STATED:  "WE
 WILL BE SENDING YOU PROPOSALS FOR CONSIDERATION AND RESPONSE WITHIN THE
 NEXT FEW WEEKS." ON SEPTEMBER 19, 1979, MR. YOUNG RESPONDED WITH A
 LETTER TO COLONEL BLEWETT AND STATED IN PART THAT THE UNION WOULD NOT
 ACCEPT A COUNTERPROPOSAL PERTAINING TO PERFORMANCE RATINGS BECAUSE THE
 PANEL HAD RESOLVED THE PERFORMANCE RATING ISSUE BY REQUIRING THAT THE
 PARTIES ADOPT THE UNION'S PROPOSAL ON THE SUBJECT (JT.EXH. 13).
 
    ON OR ABOUT SEPTEMBER 27, 1979, THE RESPONDENT FORWARDED TO THE UNION
 MANAGEMENT PROPOSALS CONCERNING A PREAMBLE AND ARTICLES 1 THROUGH 11 FOR
 A SUCCESSOR COLLECTIVE BARGAINING AGREEMENT.  COLONEL WALLACE PROMISED
 TO FORWARD REMAINING PROPOSED ARTICLES FOR INCLUSION IN THE AGREEMENT
 (JT.EXH. 14).  /12/
 
    ON OCTOBER 10, 1979, MR. YOUNG RESPONDED TO MANAGEMENT'S PROPOSALS
 FOR ARTICLES 1 THROUGH 11 WITH THE FOLLOWING STATEMENT OF THE UNION'S
 POSITION IN A LETTER TO COLONEL BLEWETT:
 
    FIRST, THAT THERE ARE THREE (3) ITEMS TO BE COMPLETED IN ACCORDANCE
 WITH THE RULING/ORDER
 
    OF THE FEDERAL SERVICE IMPASSES PANEL.  I.E. 1.  REMOVE MANAGEMENT
 PROPOSAL FOR EXTENSION OF
 
    THE CONTRACT;  2.  ACCEPT UNION PROPOSAL WITH REGARD TO TECHNICIAN
 PERFORMANCE
 
    RATINGS;  3.  OPTIONAL CIVILIAN ATTIRE FOR TECHNICIANS. SECONDLY, TWO
 (2) REPLACEMENT ARTICLES
 
    FOR ARTICLE 12 AND ARTICLE 17 WERE SUBMITTED ON JULY 28TH, 1979.
 THESE ARTICLES ARE REQUIRED
 
    BY CSC BULLETIN 711-48 DATED DECEMBER 28, 1978.  LASTLY, WITH REGARD
 TO ARTICLES AGREED TO AND
 
    INITIALED BY YOU AND MR. TEDESCO, WHEREEVER E.O. 11491 APPEARS IT
 WILL BE REMOVED AND REPLACED
 
    WITH P.L. 95-454 (JT.EXH. 15).
 
    MR. YOUNG'S OCTOBER 10TH LETTER ALSO RETURNED MANAGEMENT'S PROPOSALS
 RELATING TO ARTICLES 1 THROUGH 11.  HIS BASIS FOR SO DOING WAS THAT THE
 PROPOSALS WERE "IN CONFLICT WITH CSC BULLETIN WHICH INDICATED THAT
 "(A)REAS IN WHICH IMMEDIATE ATTENTION AND/OR ACTION IS REQUIRED ARE THE
 LAW'S NEW PROVISIONS GOVERNING REPRESENTATION RIGHTS, GRIEVANCE
 ARBITRATION, DUES WITHHOLDING AND OFFICIAL TIME FOR BARGAINING." BASED
 UPON THE QUOTED LANGUAGE, MR. YOUNG CONCLUDED:  "AS THE MAJORITY OF YOUR
 PROPOSALS DO NOT FALL UNDER ANY OF THE AFOREMENTIONED CATEGORIES THEY
 ARE DEEMED INAPPROPRIATE."
 
    OFFICIAL NOTICE IS TAKEN OF THE FACT THAT CIVIL SERVICE COMMISSION
 BULLETIN 711-48, DATED DECEMBER 28, 1978, WHICH WAS DISTRIBUTED TO THE
 HEADS OF AGENCIES, DEPARTMENTS, ASSISTANT SECRETARIES FOR ADMINISTRATION
 (OR EQUIVALENTS), MERELY PROVIDED THE VIEWS OF THE COMMISSION CONCERNING
 THE ACTION TO BE TAKEN BY AGENCIES ON OR BEFORE JANUARY 11, 1979, THE
 EFFECTIVE DATE OF THE STATUTE.  IT DID NOT REPRESENT A LIST OF
 PROVISIONS IN THE CIVIL SERVICE REFORM ACT WHICH MIGHT JUSTIFY EFFORTS
 ON THE PART OF THE RESPONDENT OR THE UNION, TO RENEGOTIATE ARTICLES
 TENTATIVELY ADOPTED IN 1977.
 
    MANAGEMENT RESTATED ITS POSITION ON THE NEGOTIATIONS IN AN OCTOBER
 22, 1979 LETTER FROM COLONEL WALLACE TO MR. YOUNG (JT.EXH. 17).  AFTER
 NOTING THE NEED TO REVIEW THE CONTRACT IN ITS ENTIRETY IN ORDER TO
 DETERMINE CHANGES MADE NECESSARY BY THE CIVIL SERVICE REFORM ACT OF
 1978, COLONEL WALLACE STATED:
 
    PASSAGE OF THE CIVIL SERVICE REFORM ACT OF 1978, PL 95-454, HAS HAD
 AN EXTRAORDINARY IMPACT
 
    UPON ALL ASPECTS OF LABOR RELATIONS WITHIN THE FEDERAL SERVICE.  AS
 SUCH, A COMPLETE
 
    REASSESSMENT OF CONTRACTUAL AGREEMENTS IS A NECESSITY;  THE
 OBLIGATION TO CONSIDER TITLE VII OF
 
    PL 95-454 IS NOT RESTRICTED TO ARTICLES 12 AND 17 OF THE EXPIRED
 AGREEMENT.  ARTICLES 3, 4, 5,
 
    AND 6, AS EXAMPLES MUST BE ADDRESSED WITH THE ADVENT OF THE REFORM
 ACT AND SUBSEQUENT
 
    STATUTORY MANDATES.
 
    IT HAS BEEN MORE THAN TWO YEARS SINCE FORMAL NEGOTIATIONS ON A
 SURVIVOR AGREEMENT TO THE
 
    ONE THAT EXPIRED IN OCTOBER OF 1977 TOOK PLACE.  WE CANNOT DISREGARD
 THAT TIME ELEMENT AND THE
 
    CHANGES THAT HAVE OCCURRED.  ACCORDINGLY, IT IS APPROPRIATE THAT THE
 ENTIRE AGREEMENT BE
 
    SUBJECTED TO NEGOTIATIONS.
 
    COLONEL WALLACE AGAIN ENCLOSED PROPOSALS RELATING TO ARTICLES 1
 THROUGH 11 OF THE EXPIRED AGREEMENT.
 
    ON OCTOBER 29, 1979, MR. YOUNG RESPONDED TO COLONEL WALLACE'S OCTOBER
 22ND LETTER AND STATED THAT BECAUSE MANAGEMENT'S PROPOSALS RELATING TO
 ARTICLES 1 THROUGH 11 INCORPORATED SEVERAL ADMINISTRATIVE CORRECTIONS
 REQUIRED BY THE CIVIL SERVICE REFORM ACT, HE HAD DECIDED TO RETAIN THEM
 (JT.EXH.18).  HE WENT ON TO SAY;  "AS STATED IN THE PAST, BOTH VERBALLY
 AND IN WRITING, THIS ORGANIZATION IS PREPARED TO RETURN TO THE
 NEGOTIATING TABLE TO IMPLEMENT THE RULING/ORDER OF THE IMPASSES PANEL
 AND TO MAKE THOSE CHANGES TO THE TENTATIVE AGREEMENT AS REQUIRED BY THE
 CIVIL SERVICE REFORM ACT." ON OR ABOUT OCTOBER 31, 1979, MANAGEMENT
 SUBMITTED TO THE UNION A "DRAFT-NEGOTIATED AGREEMENT" COVERING THE
 ARTICLES TENTATIVELY AGREED TO IN 1977, (JT.EXH. 25).
 
    MEETINGS HELD ON NOVEMBER 5 AND 6, 1979
 
    AT 9:00 A.M. ON NOVEMBER 5, 1979, THE PARTIES MET AS PLANNED TO
 NEGOTIATE A NEW CONTRACT.  MR. YOUNG HEADED THE UNION TEAM, AND COLONELS
 BLEWETT, WALLACE AND BECK WERE THE KEY REPRESENTATIVES FOR THE
 RESPONDENT.  MR. YOUNG READ A PREPARED OPENING STATEMENT (JT.EXH. 19).
 THE STATEMENT ASSERTED THAT ARTICLES TENTATIVELY ADOPTED IN 1977 WERE
 BINDING UPON THE PARTIES, AND THAT THE THREE ISSUES RESOLVED BY THE
 PANEL SHOULD BE ADDRESSED AS THE FIRST ORDER OF BUSINESS.  IN HIS FINAL
 SENTENCE MR. YOUNG STATED:  "(T)HIS COMMITTEE NOW STANDS READY TO
 IMPLEMENT THE IMPASSES PANEL DECISION AND ORDER."
 
    THE TESTIMONY OF MR. YOUNG AND MR. GIARRUSSO CLEARLY ESTABLISHED THAT
 THE UNION WAS OF THE VIEW THAT A BINDING CONTRACT WOULD RESULT WITH
 AGREEMENT OF RESPONDENT ON ISSUES RESOLVED BY THE PANEL, BY THE
 RENEGOTIATION OF ARTICLE 12 (GRIEVANCE PROCEDURE) AND ARTICLE 17
 (ARBITRATION), AND BY MAKING OTHER LIMITED NON-SUBSTANTIVE CHANGES.
 THIS POSITION WAS PREMISED ON THE THEORY THAT ALL ARTICLES TENTATIVELY
 AGREED TO IN 1977, EXCLUDING THE EXCEPTIONS NOTED, WERE BINDING ON THE
 PARTIES.  /13/
 
    MANAGEMENT REITERATED ORALLY AND IN WRITING THAT THE RESPONDENT WOULD
 ABIDE BY THE DECISION AND ORDER OF THE PANEL WITH RESPECT TO ISSUES NOT
 RELATING TO THE WEARING OF THE MILITARY UNIFORM, THAT THE PARTIES SHOULD
 CONSIDER THE DRAFT NEGOTIATED AGREEMENT PREVIOUSLY SUPPLIED TO THE
 UNION, AND THAT THE PARTIES SHOULD BEGIN WITH ARTICLE 1 AND CONTINUE
 THROUGH TO THE END OF THE PROPOSED CONTRACT IN ORDER TO INSURE
 CONFORMANCE WITH THE CIVIL SERVICE REFORM ACT.  THE POSITION OF
 MANAGEMENT IS REFLECTED IN A NOVEMBER 5, 1979 MEMORANDUM GIVEN TO THE
 UNION DURING THE MEETING (JT.EXH. 20).  IN THIS MEMORANDUM COLONEL
 BLEWETT STATED:
 
    WE HAVE ALREADY INFORMED THE IMPASSE PANEL THAT WE HAVE ACCEPTED
 THOSE PROPOSALS PERTAINING
 
    TO CONTRACT EXTENSIONS AND TECHNICIAN PERFORMANCE RATINGS.  WE MAY
 ADOPT THE LANGUAGE AS
 
    STATED OR CONCURRENTLY DECIDE UPON BETTER LANGUAGE.  /14/
 
    WE FELL THAT WE SHOULD NOW ADDRESS THE CONTRACT FROM ARTICLE 1 AND
 DEAL WITH THE IMPASSE
 
    ISSUES AS THEY ARISE.
 
    WE WANT TO REITERATE THAT NO AGREEMENT IS IN FORCE AND EFFECT SINCE
 OCTOBER, 1977.
 
    THE RESPONDENT AGAIN TOOK THE POSITION THAT THERE COULD BE NO MEETING
 OF THE MINDS IN THE FORM OF A CONTRACT UNTIL ALL NEGOTIATIONS WERE
 COMPLETED BY THE PARTIES, AND FURTHER THAT ARTICLES TENTATIVELY AGREED
 TO IN 1977 DID NOT RESULT IN A BINDING AGREEMENT CONCERNING ARTICLES
 NEGOTIATED AT THAT TIME.  MANAGEMENT REJECTED THE UNION'S VIEW WITH
 RESPECT TO THE LEGAL EFFECT OF INITIALING ARTICLES IN 1977.
 MANAGEMENT'S POSITION IN THIS REGARD IS SUPPORTED IN PART BY THE HISTORY
 OF THE 1977 NEGOTIATIONS IN THAT THE PARTIES WERE NOT THEN ABLE TO REACH
 AGREEMENT ON A GROUND RULE WHICH WOULD HAVE HAD THE EFFECT OF BINDING
 THE PARTIES TO LANGUAGE TENTATIVELY AGREED UPON PRIOR TO COMPLETION OF
 THE ENTIRE CONTRACT;  BY THE FACT THAT THE PARTIES STIPULATED TO THE
 PANEL THAT THE ARTICLES NEGOTIATED IN 1977 CONSTITUTED A TENTATIVE
 AGREEMENT ONLY, AND ONE WHICH WAS NOT IN EFFECT;  AND BY THE TESTIMONY
 OF MR. TEDESCO, WHO ACKNOWLEDGED THAT THAT THE INITIALING OF ARTICLES IN
 1977 WAS MERELY INDICATIVE OF THE FACT THAT THE ARTICLES HAD BEEN
 "COVERED" BY THE PARTIES (TR. 70).
 
    AS NOTED, AT THE NOVEMBER 5TH MEETING, MANAGEMENT INSISTED UPON THE
 PARTIES GOING OVER EACH AND EVERY ARTICLE TO INSURE CONFORMANCE WITH THE
 CIVIL SERVICE REFORM ACT.  IT WAS ALSO THE POSITION OF MANAGEMENT THAT
 THE 1977 TENTATIVE AGREEMENTS WERE AFFECTED BY THE REFORM ACT IN A
 NUMBER OF WAYS NOT RECOGNIZED BY THE UNION.  THE DISPUTE OUTLINED
 RESULTED IN A DISAGREEMENT OVER THE PROCEDURE TO BE PURSUED BY THE
 PARTIES DURING CONTRACT NEGOTIATIONS.  THE UNION DECIDED THAT THE
 PARTIES SHOULD ENDEAVOR TO OBTAIN THE SERVICES OF A MEDIATOR FROM THE
 FEDERAL MEDIATION AND CONCILIATION SERVICE, AND MANAGEMENT AGREED.
 BECAUSE A UNION EFFORT TO OBTAIN A MEDIATOR WAS UNSUCCESSFUL, THE
 PARTIES RECESSED WITH THE UNDERSTANDING THAT THE UNION WOULD PHONE
 MANAGEMENT BY 2:00 P.M. ON NOVEMBER 5TH TO APPRISE MANAGEMENT CONCERNING
 UNION EFFORTS TO OBTAIN A MEDIATOR, AND TO INFORM WHETHER THE UNION TEAM
 WOULD RETURN TO THE BARGAINING TABLE THE NEXT DAY.
 
    AS THE UNION TEAM WAS LEAVING THE BUILDING, COLONEL BECK ASKED MR.
 YOUNG TO RETURN TO THE NEGOTIATING TABLE.  MR. YOUNG WAS ADVISED THAT
 THE UNION TEAM WOULD RECEIVE FOUR HOURS OF OFFICIAL TIME FOR THE ACTUAL
 TIME SPENT AT THE TABLE, BUT THAT NO OFFICIAL TIME WOULD BE PROVIDED FOR
 TIME SPENT AWAY FROM THE BARGAINING TABLE.  /15/ THE UNION TEAM THEN
 LEFT THE TABLE.  THE ENTIRE BARGAINING SESSION LASTED ABOUT TWO HOURS.
 THE PARTIES STIPULATED THAT THE COLLECTIVE BARGAINING AGREEMENT IN
 EFFECT DID NOT GOVERN THE ISSUE OF WHETHER THE UNION WOULD BE ENTITLED
 TO OFFICIAL TIME IN THE SITUATION OUTLINED, AND FURTHER THAT MANAGEMENT
 HAD A LONG STANDING PAST PRACTICE OF GRANTING OFFICIAL TIME TO UNION
 NEGOTIATORS ONLY FOR TIME ACTUALLY SPENT AT THE BARGAINING TABLE (TR.
 125-126).  THE ACTION TAKEN BY THE RESPONDENT WAS IN ACCORDANCE WITH
 THIS PAST PRACTICE.
 
    AFTER LEAVING THE BARGAINING TABLE THE UNION NEGOTIATING TEAM
 RETURNED TO THEIR HOTEL WHERE THEY CONSIDERED AND DISCUSSED THE MORNING
 SESSION.  DURING THE AFTERNOON THEY CONTACTED MR. TEDESCO, MR. VINCENT
 PATERNO, NATIONAL PRESIDENT OF ACT, AND THE FEDERAL MEDIATION AND
 CONCILIATION SERVICE.  EFFORTS TO OBTAIN A MEDIATOR WERE NOT SUCCESSFUL.
  DURING THE AFTERNOON THEY ALSO PREPARED THREE PROPOSALS TO PRESENT TO
 MANAGEMENT (JT.EXH. 21).  THE THREE PROPOSALS RELATED SPECIFICALLY TO
 THE IMPLEMENTATION OF THE DECISION AND ORDER OF THE PANEL.  PROPOSAL I
 WAS DESIGNED TO EFFECTUATE A WITHDRAWAL OF MANAGEMENT'S PRIOR PROPOSAL
 RELATING TO THE EXTENSION OF THE COLLECTIVE BARGAINING AGREEMENT.  THE
 TERMS OF PROPOSAL II REPRESENTED A REASSERTION OF THE PRIOR UNION
 PROPOSAL RELATING TO PERFORMANCE RATINGS.  PROPOSAL III, NOT RELEVANT
 WITHIN THE CONTEXT OF THIS PROCEEDING, RELATED TO THE WEARING OF THE
 MILITARY UNIFORM.  THE UNION TEAM WORKED ON THE THREE PROPOSALS UNTIL
 APPROXIMATELY 4:00 OR 4:30 P.M. ON NOVEMBER 5TH.  AT ABOUT 3:30 P.M.
 MR. YOUNG PHONED MANAGEMENT AND ARRANGED TO RETURN TO THE BARGAINING
 TABLE ON NOVEMBER 6TH.
 
    ON NOVEMBER 6, 1979, THE PARTIES MET AGAIN, AND AFTER THE UNION
 EXPLAINED THAT A MEDIATOR WOULD NOT BE AVAILABLE UNTIL THE END OF THE
 WEEK, THE UNION PRESENTED THE THREE PROPOSALS PREPARED BY UNION
 REPRESENTATIVES DURING THE AFTERNOON OF NOVEMBER 5TH.  THERE WAS MORE
 DISCUSSION OF LEGAL EFFECT OF INITIALING ARTICLES IN 1977.  MANAGEMENT
 TOOK THE POSITION THAT PRIOR AGREEMENT ON ARTICLES IN 1977 WAS NOT
 BINDING DUE TO THE PASSAGE OF THE REFORM ACT, AND DUE TO THE LAPSE OF
 ABOUT TWO AND A HALF YEARS (TR. 95).  AGAIN, THE UNION INSISTED THAT THE
 THREE ISSUES RESOLVED BY THE PANEL WERE THE ONLY BUSINESS PENDING, THAT
 AGREEMENTS REACHED IN 1977 WERE BINDING ON THE PARTIES;  THAT UPON
 SIGNING THE THREE PROPOSALS, RENEGOTIATING THE GRIEVANCE AND ARBITRATION
 PROCEDURES AND MAKING OTHER NON-SUBSTANTIVE CHANGES IN ARTICLES
 TENTATIVELY AGREED TO, A BINDING COLLECTIVE BARGAINING AGREEMENT WOULD
 RESULT.  MANAGEMENT REFUSED TO ACCEDE TO THE UNION'S VIEW AND INSISTED
 UPON REVIEWING THE ENTIRE "DRAFT-NEGOTIATED AGREEMENT" SUBMITTED TO THE
 UNION PRIOR TO THE NEGOTIATING SESSIONS.  MANAGEMENT AGAIN TOOK THE
 POSITION THAT THIS WAS NECESSARY TO INSURE THAT THE AGREEMENT CONFORMED
 TO THE REFORM ACT;  AND THAT THE PARTIES COULD CONSIDER THE THREE ISSUES
 RETURNED BY THE PANEL AS THESE ISSUES AROSE IN SEQUENCE DURING
 CONSIDERATION OF THE "DRAFT-NEGOTIATED AGREEMENT." AFTER A BRIEF PERIOD
 THE PARTIES AGREED TO RECESS WITH THE UNDERSTANDING THAT THEY WOULD MEET
 AGAIN WITH A REPRESENTATIVE OF THE FEDERAL MEDIATION AND CONCILIATION
 SERVICE.
 
    ON NOVEMBER 19, 1979, THE PARTIES MET WITH A FEDERAL MEDIATOR
 PRESENT.  /16/ EACH PARTY EXPLAINED THEIR RESPECTIVE POSITIONS AND THEN
 AGREED THAT THEY WOULD SUBMIT A LIST OF TENTATIVELY ADOPTED ARTICLES
 THAT THEY FELT HAD TO BE RENEGOTIATED OR ADMINISTRATIVELY CHANGED AS A
 RESULT OF PASSAGE OF THE REFORM ACT.  SUBSEQUENTLY, ON DECEMBER 14,
 1979, COLONEL WALLACE ADDRESSED A LETTER TO MR. YOUNG SETTING FORTH
 RESPONDENT'S POSITION ON THE ARTICLES WHICH MANAGEMENT FELT HAD TO BE
 ADDRESSED DURING NEGOTIATIONS (JT.EXH. 22) ON WHICH THE UNION FELT WERE
 SUBJECT TO RENEGOTIATION AS A RESULT OF PASSAGE OF THE REFORM ACT
 (JT.EXH. 23).  THE UNION AGREED WITH THE RESPONDENT THAT ARTICLE 4
 (RIGHTS OF TECHNICIANS), ARTICLE 12 (GRIEVANCE PROCEDURE), AND ARTICLE
 17 (ARBITRATION), HAD TO BE RENEGOTIATED, AND THAT CERTAIN MINOR CHANGES
 INVOLVING REMOVAL OF REFERENCES TO EXECUTIVE ORDER 11491 WERE REQUIRED
 IN OTHER ARTICLES.  THE RESPONDENT IDENTIFIED OTHER ARTICLES AS BEING
 SUBJECT TO RENEGOTIATION.  THESE WERE ARTICLE 1 (UNION REPRESENTATION),
 ARTICLE 10 (EQUAL EMPLOYMENT OPPORTUNITY), ARTICLE 13 (REDUCTION IN
 FORCE), ARTICLE 14 (MERIT PROMOTION), ARTICLE 15 (DETAIL OF
 TECHNICIANS), ARTICLE 20 (DUES WITHHOLDING), AND ARTICLE 21 (DURATION
 AND CHANGES).  IN ADDITION THE RESPONDENT INSISTED THAT IN MAKING MINOR
 CHANGES INVOLVING THE REMOVAL OF REFERENCES TO EXECUTIVE ORDER 11491,
 AFFECTED ARTICLES SHOULD BE SCRUTINIZED BY THE PARTIES TO DETERMINE
 WHETHER THE CIVIL SERVICE REFORM ACT HAD AN IMPACT ON SUCH ARTICLES.
 
    ON JANUARY 2, 1980, COLONEL WALLACE WROTE TO MR. YOUNG AND NOTED THE
 DIFFERENCES IN THE POSITIONS OF THE PARTIES (JT.EXH. 24).  COLONEL
 WALLACE URGED THAT THE PARTIES SHOULD RESOLVE THEIR DIFFERENCES
 CONCERNING THE SUBJECTS TO BE RENEGOTIATED BEFORE ENDEAVORING TO
 NEGOTIATE FURTHER, AND THAT THE SUBJECT MIGHT BE AN APPROPRIATE ONE FOR
 SUBMISSION TO THE PANEL.  HE CONCLUDED BY STATING, "YOUR THOUGHTS AND
 COMMENTS ON HOW WE MAY EXPEDITIOUSLY RESOLVE THESE DIFFERENCES ARE
 SOLICITED." THE PARTIES DID NOT REACH AGREEMENT ON THIS SUBJECT, AND ON
 APRIL 14, 1980, THEY MET AGAIN.  AT THIS MEETING, THE UNION AGAIN TOOK
 THE POSITION THAT ALL TENTATIVELY ADOPTED ARTICLES WERE BINDING ON THE
 RESPONDENT, THAT THE PARTIES SHOULD RENEGOTIATE ARTICLES 4, 12 AND 17
 DUE TO PASSAGE OF THE REFORM ACT, THAT MINOR CHANGES BE MADE TO REMOVE
 REFERENCES TO EXECUTIVE ORDER 11941, AND FURTHER THAT NO BASIS EXISTED
 FOR RENEGOTIATING OTHER ARTICLES.  AS OF THE DATE OF THE HEARING THE
 PARTIES HAD AGREED TO RETURN TO THE NEGOTIATING TABLE ON JUNE 10, 1980,
 WITH A FEDERAL MEDIATOR PRESENT.
 
                        DISCUSSION AND CONCLUSIONS
 
                             CASE NO. 1-CA-196
 
    THE BASIC ISSUE POSED FOR RESOLUTION IN CASE NO. 1-CA-196 IS WHETHER
 THE RESPONDENT FAILED TO BARGAIN IN "GOOD FAITH" WITH THE UNION BY
 DEMANDING THE RENEGOTIATION OF CERTAIN CONTRACT ARTICLES PREVIOUSLY
 AGREED TO BY THE UNION AND THE RESPONDENT DURING PRIOR COLLECTIVE
 BARGAINING NEGOTIATIONS;  BY SEEKING TO AVOID OR DELAY REACHING AN
 AGREEMENT BY DEMANDING THE RENEGOTIATION OF SUCH ARTICLES;  BY
 ATTEMPTING TO UTILIZE THE PROCESSES OF THE PANEL TO AVOID THE OBLIGATION
 TO NEGOTIATE;  AND BY TRYING TO EFFECT THE NEGOTIATION OF ISSUES WHICH
 THE PANEL HAD PREVIOUSLY CONSIDERED AND RESOLVED.
 
    SECTION 7114(B)(1) OF THE STATUTE REFLECTS THAT THE DUTY TO NEGOTIATE
 IN GOOD FAITH INCLUDES THE OBLIGATION "TO APPROACH THE NEGOTIATIONS WITH
 A SINCERE RESOLVE TO REACH A COLLECTIVE BARGAINING AGREEMENT . . . "
 
    IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2578, AFL-CIO,
 AND NATIONAL ARCHIVES AND RECORDS SERVICE, A/SLMR NO. 965 (JANUARY 11,
 1978), THE ASSISTANT SECRETARY FOR LABOR MANAGEMENT RELATIONS, UNITED
 STATES DEPARTMENT OF LABOR, UTILIZED THE FOLLOWING LANGUAGE TO DESCRIBE
 GOOD FAITH BARGAINING:
 
    THE DUTY TO BARGAIN IN "GOOD FAITH" . . . REQUIRES THAT PARTIES TO
 NEGOTIATIONS APPROACH
 
    THE BARGAINING TABLE WITH AN OPEN AND SINCERE DESIRE TO REACH
 AGREEMENT . . . .  IN ADDITION
 
    TO APPROACHING BARGAINING WITH AN OPEN MIND AND SINCERE DESIRE TO
 REACH AGREEMENT, THE DUTY TO
 
    BARGAIN IN GOOD FAITH ALSO REQUIRES THAT THE PARTIES MAKE AN EARNEST
 EFFORT TO REACH AGREEMENT
 
    THROUGH THE COLLECTIVE BARGAINING PROCESS . . . .
 
    THE DECISION CITED ALSO MAKES IT CLEAR THAT THE TOTALITY OF THE
 EVIDENCE IN A CASE MUST BE CONSIDERED IN ORDER TO DETERMINE WHETHER A
 PARTY HAS ATTEMPTED TO EVADE OR FRUSTRATE THE BARGAINING RESPONSIBILITY.
  AFTER EVALUATING THE EVIDENCE PRESENTED BY THE PARTIES IN THE LIGHT OF
 PERTINENT AUTHORITIES, AND CONSIDERING THE SPECIAL CIRCUMSTANCES
 PRESENTED IN THIS CASE, I AM OF THE OPINION THAT RESPONDENT'S CONDUCT
 DID NOT CONSTITUTE BAD FAITH BARGAINING.
 
         RESPONDENT'S INSISTENCE ON THE RENEGOTIATION OF ARTICLES
 
                            PREVIOUSLY ADOPTED
 
    IN CASES DECIDED UNDER THE NATIONAL LABOR RELATIONS ACT IT HAS BEEN
 HELD THAT AN EMPLOYER'S WITHDRAWAL OF TENTATIVE AGREEMENTS OR PREVIOUS
 PROPOSALS IS EVIDENCE OF BAD FAITH BARGAINING.  SUCH WITHDRAWAL WITHOUT
 GOOD CAUSE CAN BE STRONG EVIDENCE THAT THE EMPLOYER IS MERELY STRINGING
 THE UNION ALONG AND THAT IT IS NOT BARGAINING WITH THE REQUIRED GOOD
 FAITH INTENT TO REACH AN AGREEMENT.  HOWEVER, THIS GENERAL PRINCIPLE
 MUST BE CONSIDERED IN THE LIGHT OF THE CAVEAT THAT THE WITHDRAWAL OF
 TENTATIVE PREVIOUS AGREEMENTS OR PREVIOUS PROPOSALS DOES NOT ESTABLISH
 PER SE THE ABSENCE OF GOOD FAITH.  THE ACTIONS OF THE EMPLOYER MUST BE
 VIEWED IN THE CONTEXT OF THE NEGOTIATIONS IN WHICH THEY AROSE.  NLRB V.
 RANDLE-EASTERN AMBULANCE SERVICE, INC., 584 F.2D 720, 99 LRRM 3377 (CA
 5, 1978).
 
    IN THIS CASE THE RESPONDENT AND THE CHARGING PARTY AGREED TO
 RENEGOTIATE CERTAIN CONTRACTUAL PROVISIONS PREVIOUSLY ADOPTED IN 1977.
 ARTICLE 4 (RIGHTS OF TECHNICIANS), ARTICLE 12 (GRIEVANCE PROCEDURE), AND
 ARTICLE 17 (ARBITRATION) FELL INTO THIS CATEGORY.  /17/ ARTICLE 20 (DUES
 WITHHOLDING) MUST ALSO BE INCLUDED IN THIS GROUP IN VIEW OF PROVISIONS
 IN THE MEMORANDUM OF AGREEMENT EXECUTED BY THE UNION AND THE RESPONDENT
 ON MAY 17, 1979.  THE UNION ALSO AGREED GENERALLY TO RENEGOTIATE
 PROVISIONS IMPACTED BY THE REFORM ACT, AND ABANDONED PRIOR ASSENT TO
 CERTAIN ARTICLES WHICH THE UNION FELT SHOULD BE MODIFIED BECAUSE OF THE
 CFTM TEST PROGRAM INITIATED BY THE RESPONDENT IN EARLY 1979.  OF THE
 ARTICLES TENTATIVELY ADOPTED IN AUGUST OF 1979, ARTICLE 4 (RIGHTS OF
 TECHNICIANS), ARTICLE 10 (EQUAL EMPLOYMENT OPPORTUNITY), ARTICLE 13
 (REDUCTION IN FORCE), ARTICLE 14 (MERIT PROMOTION), AND ARTICLE 15
 (DETAIL OF TECHNICIANS), WOULD HAVE BEEN AFFECTED BY UNION INTEREST IN
 THE CFTM TEST PROGRAM.  /18/
 
    A CAREFUL REVIEW OF THE PREAMBLE, ARTICLE 1 (RECOGNITION AND UNIT
 DESIGNATION), ARTICLE 2 (PURPOSE), ARTICLE 3 (EMPLOYER RIGHTS), ARTICLE
 6 (UNION REPRESENTATION), ARTICLE 7 (HOURS OF WORK), ARTICLE 8 (LEAVE),
 ARTICLE 9 (HEALTH AND SAFETY), ARTICLE 18 (TRAINING), AND ARTICLE 19
 (TRAVEL), AS SET FORTH IN THE "DRAFT-NEGOTIATED AGREEMENT" REVEALS THAT
 THEY ARE SUBSTANTIALLY THE SAME AS CORRELATIVE ARTICLES PREVIOUSLY
 ADOPTED BY THE UNION AND RESPONDENT IN 1977.  THE SUBMISSION OF CHANGED
 VERSIONS OF ARTICLE 5 (UNION-MANAGEMENT COOPERATION), ARTICLE 16
 (GENERAL), AND ARTICLE 21 (DURATION AND CHANGES), WAS ARGUABLY JUSTIFIED
 BY THE PASSAGE OF THE REFORM ACT;  AND ARTICLE 11 (PUBLICITY) INVOLVED
 ONLY A MINOR CHANGE, WHICH ARGUABLY, WOULD HAVE INURED TO THE BENEFIT OF
 THE UNION.
 
    AT THE CONCLUSION OF THE HEARING COUNSEL OF RECORD WERE REQUESTED TO
 REVIEW THE DIFFERENCES BETWEEN ARTICLES TENTATIVELY ADOPTED IN 1977, AND
 THE 1979 "DRAFT-NEGOTIATED AGREEMENT," AND TO STATE FOR THE RECORD,
 THEIR RESPECTIVE POSITIONS REGARDING SUCH DIFFERENCES OR SAMENESS;  AND
 TO STATE THE REASONS FOR THEIR POSITIONS WITH RESPECT TO EACH ARTICLE.
 THE POST-HEARING BRIEF FILED BY COUNSEL FOR THE GENERAL COUNSEL
 INDICATES A FAILURE TO RESPOND TO THIS REQUEST.  /19/
 
    A NUMBER OF FACTORS CONJOIN IN THIS CASE TO INDICATE THE ABSENCE OF
 AN ADEQUATE BASIS UPON WHICH TO CONCLUDE THAT THE RESPONDENT ENGAGED IN
 BAD FAITH BARGAINING BY SUBMITTING PROPOSALS IN THE FORM OF A
 "DRAFT-NEGOTIATED AGREEMENT," OR THAT THE MENTIONED DOCUMENT WAS
 OTHERWISE URGED UPON THE UNION IN BAD FAITH.  THESE INCLUDE THE
 FOLLOWING:  (1) THE MERE INTRODUCTION OF EVIDENCE SHOWING RESPONDENT'S
 WITHDRAWAL OF TENTATIVE AGREEMENTS DOES NOT PER SE ESTABLISH BAD FAITH
 BARGAINING;  (2) THE PRESENTATION OF NEARLY IDENTICAL ARTICLES, OR
 ARTICLES INVOLVING MINOR EDITORIAL REVISIONS, WOULD NOT, WITHOUT MORE,
 REFLECT AN INTENT TO ENGAGE IN BAD FAITH BARGAINING WHERE, AS IN THIS
 CASE, THE PARTIES WERE ENDEAVORING TO INSURE THAT EACH ARTICLE
 PREVIOUSLY ADOPTED CONFORMED WITH THE PROVISIONS OF THE REFORM ACT;(3)
 INITIALLY AT LEAST, THE UNION AGREED GENERALLY TO CONSIDER ANY CHANGES
 THAT EITHER THE UNION OR THE RESPONDENT FELT WERE WARRANTED BY THE
 REFORM ACT;  (4) THE RESPONDENT, NOT THE UNION, UNDERTOOK THE EFFORT TO
 PROVIDE EDITED VERSIONS OF ARTICLES PREVIOUSLY AGREED TO FOR THE PURPOSE
 OF EFFECTING MINOR EDITORIAL CHANGES REQUIRED BY THE REFORM ACT;  (5)
 THE POSITIONS OF THE PARTIES WERE IN FACT SUBSTANTIALLY ALTERED BY THE
 PASSAGE OF THE REFORM ACT, AND BY THE UNION'S EFFORTS TO MODIFY ARTICLES
 DEEMED SUBJECT TO CHANGE AS A RESULT OF THE CFTM TEST PROGRAM;  (6) THE
 UNION'S POSITION NECESSARILY IMPLIES THAT THE UNION HAD THE RIGHT TO
 WITHDRAW FROM THEIR AGREEMENTS RELATING TO PREVIOUSLY NEGOTIATED
 ARTICLES WHICH THE UNION DEEMED TO BE AFFECTED BY THE CFTM TEST PROGRAM,
 BUT THAT THE RESPONDENT HAD NO CORRELATIVE RIGHT TO WITHDRAW ASSENT
 BASED UPON RESPONDENT'S PERCEPTION OF CHANGED CIRCUMSTANCES WITH
 RESPECT
 TO PREVIOUSLY ADOPTED ARTICLES;  (7) ARGUABLY THERE WAS A DUTY AND AN
 OBLIGATION ON THE PART OF BOTH THE UNION AND THE RESPONDENT, TO REVIEW
 AND CONSIDER AGAIN, EACH ARTICLE IN ORDER TO REACH AGREEMENT ON THE
 FINAL WORDING OF ARTICLES AS A RESULT OF CHANGES GENERATED BY THE REFORM
 ACT;  /20/ (8) RESPONDENT'S INSISTENCE UPON SUBJECTING ALL PREVIOUSLY
 ADOPTED ARTICLES TO NEGOTIATION MAY NOT, IN THIS CASE BE TAKEN
 LITERALLY, AS THE RECORD INDICATES THAT THE RESPONDENT WAS, FOR THE MOST
 PART, MERELY INSISTING UPON A THOROUGH REVIEW OF ARTICLES BY THE UNION
 AND THE RESPONDENT TO INSURE THAT THEY CONFORMED WITH THE REFORM ACT;
 (9) THE MAIN ISSUE CONFRONTING THE PARTIES REVOLVED ABOUT THE QUESTION
 OF WHAT SPECIFIC ACTION THE PARTIES SHOULD TAKE AS A RESULT OF THE
 REFORM ACT, AND FURTHER, HOW THE PARTIES WOULD PROCESS PREVIOUSLY
 ADOPTED ARTICLES TO INSURE CONFORMANCE WITH THE REFORM ACT;  (10) THE
 EVIDENCE INDICATES AN INTENTION ON THE PART OF THE RESPONDENT TO
 PARTICIPATE IN NEGOTIATIONS TO RESOLVE ALL CONTRACTUAL ISSUES OTHER THAN
 THOSE RELATING TO THE WEARING OF THE MILITARY UNIFORM;  (11) THE
 NEGOTIATING PROCEDURE SUGGESTED BY THE RESPONDENT IN THE 1979
 NEGOTIATIONS, THAT OF BEGINNING WITH ARTICLE 1 AND PROCEEDING WITH EACH
 ARTICLE IN SEQUENCE, WAS IN ACCORDANCE WITH THE PROCEDURE UTILIZED BY
 NEGOTIATORS IN 1977, AND IN VIEW OF THE ARGUABLE NEED TO THOROUGHLY
 REVIEW ARTICLES ADOPTED IN 1977, WAS NOT PATENTLY UNREASONABLE;  (12)
 THE UNION'S POSITION REGARDING THE EFFECT TO BE GIVEN THE 1977 ARTICLES
 VIEWED THE ISSUES PRESENTED IN ISOLATION, AND DID NOT FULLY INDICATE
 COGNIZANCE OF THE TASKS FACING THE PARTIES AS A DIRECT RESULT OF PASSAGE
 OF THE REFORM ACT, AND AS A RESULT OF THE UNION'S PRIOR WITHDRAWAL OF
 ASSENT CONCERNING A NUMBER OF ARTICLES ADOPTED IN 1977;  AND LASTLY (13)
 THE BURDEN OF PROVING BAD FAITH BASED UPON WITHDRAWAL OF ARTICLES
 TENTATIVELY ADOPTED, UNMET IN THIS CASE, REMAINED WITH COUNSEL FOR THE
 GENERAL COUNSEL.
 
    IN SUMMARY THE RECORD REVEALS THAT THE UNION AGREED THAT IT WAS
 NECESSARY TO RENEGOTIATE ARTICLES 4, 12, 17 AND 20;  AND THAT THE UNION
 INITIATED EARLIER EFFORTS TO MODIFY ARTICLES 4, 10, 13, 14 AND 15 PRIOR
 TO NEGOTIATIONS.  WITH RESPECT TO OTHER ARTICLES PROPOSED BY THE
 RESPONDENT IN 1979, THAT IS, THE PREAMBLE, AND ARTICLES 1, 2, 3, 5, 6,
 7, 8, 9, 11, 16, 18, 19 AND 21, THERE WAS NO SHOWING THAT THE PROPOSED
 ARTICLES WERE DIFFERENT OR INVOLVED CHANGES WHICH WERE NOT JUSTIFIED
 UNDER THE CIRCUMSTANCES.  IN FACT, WITH RESPECT TO THE PREAMBLE, AND
 ARTICLES 1, 2, 3, 6, 7, 8, 9, 18, AND 19, IT WAS NOTED THAT THEY WERE
 EITHER IDENTICAL OR INVOLVED ONLY MINOR INSIGNIFICANT EDITORIAL CHANGES.
  DESPITE A SPECIFIC REQUEST FOR DETAILS, THE RECORD FAILED TO DOCUMENT
 THE NATURE AND SCOPE OF THE 1979 PROPOSALS FROM THE STAND POINT OF
 COUNSEL FOR THE GENERAL COUNSEL;  AND DID NOT, IN LIGHT OF ALL OF THE
 FOREGOING, ESTABLISH THAT THE PROPOSALS WERE SUBMITTED IN AN ATTEMPT TO
 AVOID OR DELAY REACHING AN AGREEMENT.
 
          THE ALLEGED USE OF THE PROCESSES OF THE FEDERAL SERVICE
 
            IMPASSES PANEL TO AVOID THE OBLIGATION TO NEGOTIATE
 
    A CAREFUL REVIEW OF THE RECORD DISCLOSED NO BASIS TO SUPPORT THE
 ALLEGATION THAT THE RESPONDENT SOUGHT TO UTILIZE THE PROCESSES OF THE
 PANEL TO AVOID THE OBLIGATION TO NEGOTIATE.  COUNSEL FOR THE GENERAL
 COUNSEL REFERS TO JT.EXH. 24 AS EVIDENCE OF SUCH CONDUCT.  THIS
 DOCUMENT, A LETTER DATED JANUARY 2, 1980, ADDRESSED TO MR.YOUNG BY
 COLONEL WALLACE, DOES NOT REPRESENT EVIDENCE OF AN EFFORT ON THE PART OF
 THE RESPONDENT TO UTILIZE THE PROCESSES OF THE PANEL TO AVOID THE
 OBLIGATION TO NEGOTIATE.  INSTEAD, IT INDICATES THAT THE RESPONDENT
 WISHED TO RESOLVE DIFFERENCES CONCERNING SUBJECTS TO BE NEGOTIATED
 BEFORE ENDEAVORING TO NEGOTIATE FURTHER.
 
           THE ALLEGED ATTEMPT TO EFFECT RENEGOTIATION OF ISSUES
 
              RESOLVED BY THE FEDERAL SERVICE IMPASSES PANEL
 
    IT DID APPEAR THAT PORTIONS OF THE PANEL'S DECISION AND ORDER
 RELATING TO THE WEARING OF THE MILITARY UNIFORM WERE A SOURCE OF SERIOUS
 CONTROVERSY BETWEEN THE UNION AND THE RESPONDENT.  THE REFUSAL TO COMPLY
 IN THIS REGARD LET TO THE FILING OF A SEPARATE UNFAIR LABOR PRACTICE
 CHARGE AND SUBSEQUENT SUCCESSFUL PROSECUTION OF A COMPLAINT BY THE
 UNION.  BECAUSE OF THE PRIOR LITIGATION OF ISSUES RELATING TO
 RESPONDENT'S REFUSAL TO COMPLY IN THIS LIMITED AREA, COUNSEL FOR THE
 GENERAL COUNSEL SPECIFICALLY STIPULATED THAT HE WAS NOT REQUESTING
 FACTUAL FINDINGS OR REMEDY BASED UPON ELEMENTS OF THE PANEL'S DECISION
 AND ORDER DEALING WITH THE WEARING OF THE MILITARY UNIFORM.
 
    ALLEGATIONS THAT THE RESPONDENT ENGAGED IN BAD FAITH BARGAINING BY
 SEEKING TO EFFECT THE RENEGOTIATION OF ISSUES WHICH THE PANEL HAD
 PREVIOUSLY CONSIDERED AND RESOLVED MUST, AS A RESULT OF THE STIPULATION
 OF COUNSEL FOR THE GENERAL COUNSEL, BE LIMITED SOLELY TO THOSE PORTIONS
 OF THE PANEL'S DECISION AND ORDER WHICH MANDATED THAT THE RESPONDENT
 WITHDRAW RESPONDENT'S PROPOSAL RELATING TO THE EXTENSION OF THE
 COLLECTIVE BARGAINING AGREEMENT, AND WHICH ORDERED THE ADOPTION OF THE
 UNION'S PROPOSAL RELATING TO PERFORMANCE RATINGS.  THE RECORD SHOWS
 CONCLUSIVELY THAT THE RESPONDENT DID IN FACT AGREE TO COMPLY WITH THE
 DECISION AND ORDER OF THE PANEL IN THESE TWO AREAS OF INTEREST.  THIS
 WAS REFLECTED IN A LETTER TO THE PANEL, AND IN A LETTER TO THE UNION
 FOLLOWING THE DECISION AND ORDER (TR. 78).  SUBSEQUENTLY, ON NOVEMBER 5,
 1979, THE RESPONDENT REITERATED THAT IT WOULD COMPLY WITH THE PANEL'S
 DECISION AND ORDER WITH REGARD TO THE TWO ISSUES IN QUESTION.  HOWEVER,
 THE RESPONDENT DID OFFER A COUNTERPROPOSAL RELATING TO PERFORMANCE
 RATINGS.  THE COUNTERPROPOSAL WAS OFFERED AS A MEANS OF PROVIDING FOR
 CHANGES BEING MADE IN TPP 902, REFERRED TO IN THE PROPOSAL WHICH THE
 PANEL'S DECISION AND ORDER HAD MANDATED THAT THE RESPONDENT ADOPT.
 ALSO, IT APPEARED THAT CHANGES IN REGULATIONS RELATING TO PERFORMANCE
 RATINGS WERE ANTICIPATED AS A RESULT OF PASSAGE OF THE REFORM ACT.
 ALTHOUGH THE COUNTERPROPOSAL WAS OFFERED, THE RESPONDENT MADE IT CLEAR
 THAT THE RESPONDENT WAS NOT REJECTING THE DECISION AND ORDER OF THE
 PANEL, AND FURTHER THAT THE RESPONDENT WOULD ACCEPT THE PANEL'S DECISION
 AND ORDER ON THE TWO ISSUES IN QUESTION.
 
    EVEN ASSUMING THAT THESE TWO ISSUES WERE NOT RESOLVED IN FINAL FORM
 PRIOR TO AND DURING NEGOTIATIONS, THE RECORD FAILS TO SHOW THAT THE
 RESPONDENT INSISTED UPON THE RENEGOTIATION OF ISSUES PREVIOUSLY RESOLVED
 BY THE PANEL OTHER THAN THOSE RELATING TO THE WEARING OF THE MILITARY
 UNIFORM.  UNDER THE CIRCUMSTANCES IT WOULD NOT BE POSSIBLE TO CONCLUDE
 THAT RESPONDENT'S COUNTERPROPOSAL CONSTITUTED BAD FAITH BARGAINING.
 
                             CASE NO. 1-CA-195
 
    THIS CASE TURNS ON THE QUESTION OF WHETHER THE PROVISIONS OF SECTION
 7131(A) OF THE STATUTE ARE BROAD ENOUGH TO REQUIRE AN AGENCY TO GRANT
 OFFICIAL TIME TO EMPLOYEE MEMBERS OF A UNION BARGAINING COMMITTEE FOR
 PERIODS SPENT PREPARING FOR, OR ARRANGING, DETAILS RELATING TO THE
 NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT, AS DISTINCT FROM
 PERIODS OF TIME SPENT IN ACTUAL NEGOTIATION OF A COLLECTIVE BARGAINING
 AGREEMENT.
 
    SECTION 7131(A) PROVIDES IN PERTINENT PART:
 
    (A) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE
 NEGOTIATION OF A
 
    COLLECTIVE BARGAINING AGREEMENT UNDER THIS CHAPTER SHALL BE
 AUTHORIZED OFFICIAL TIME FOR SUCH
 
    PURPOSES, INCLUDING ATTENDANCE AT IMPASSE PROCEEDING, DURING THE TIME
 THE EMPLOYEE OTHERWISE
 
    WOULD BE IN A DUTY STATUS . . . .
 
    (B) ANY ACTIVITIES PERFORMED BY ANY EMPLOYEE RELATING TO THE INTERNAL
 BUSINESS OF A LABOR
 
    ORGANIZATION (INCLUDING THE SOLICITATION OF MEMBERSHIP, ELECTIONS OF
 LABOR ORGANIZATION
 
    OFFICIALS, AND COLLECTION OF DUES) SHALL BE PERFORMED DURING THE TIME
 THE EMPLOYEE IS IN A
 
    NON-DUTY STATUS.
 
   .          .          .          .
 
 
    (D) EXCEPT AS PROVIDED IN PRECEDING SUBSECTIONS OF THIS SECTION--
 
    (1) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE, OR
 
    (2) IN CONNECTION WITH ANY OTHER MATTER COVERED BY THIS CHAPTER, ANY
 EMPLOYEE IN AN
 
    APPROPRIATE UNIT REPRESENTED BY AN EXCLUSIVE REPRESENTATIVE, SHALL BE
 GRANTED OFFICIAL TIME IN
 
    ANY AMOUNT THE AGENCY AND THE EXCLUSIVE REPRESENTATIVE INVOLVED AGREE
 TO BE REASONABLE,
 
    NECESSARY, AND IN THE PUBLIC INTEREST.
 
    IT WAS THE PRACTICE OF THE RESPONDENT TO GRANT OFFICIAL TIME TO UNION
 NEGOTIATORS ONLY FOR TIME ACTUALLY SPENT AT THE BARGAINING TABLE.
 THEREFORE, THE REFUSAL TO GRANT OFFICIAL TIME FOR THE PERIOD OF TIME
 SPENT AWAY FROM THE BARGAINING TABLE DURING THE AFTERNOON OF NOVEMBER 5,
 1979, WAS IN ACCORD WITH PAST PRACTICE.  IT ALSO APPEARED THAT THE
 PARTIES RECESSED ON NOVEMBER 5, 1979, WITHOUT DEFINITE PLANS TO RETURN,
 AS AN EFFORT TO OBTAIN THE SERVICES OF A FEDERAL MEDIATOR HAD FAILED,
 AND THE PARTIES WERE NOT THEN IN POSITION TO KNOW IF AND WHEN A MEDIATOR
 WOULD BE AVAILABLE.  THE RECORD DID DISCLOSE THAT A MEDIATOR WOULD NOT
 HAVE BEEN IMMEDIATELY AVAILABLE TO THE PARTIES.  THUS, THERE WAS A GREAT
 DEAL OF UNCERTAINTY AS TO WHEN THE PARTIES WOULD RETURN TO THE
 BARGAINING TABLE.  THE UNION NEGOTIATING TEAM LEFT THE BARGAINING TABLE
 TO PREPARE FOR NEGOTIATIONS IN THE FUTURE, BUT THE DATE AND TIME OF SUCH
 FUTURE MEETING WAS AT BEST UNCERTAIN.
 
    SECTION 7131(A) PROVIDES FOR GRANT OF OFFICIAL TIME FOR CERTAIN
 PURPOSES, INCLUDING TIME SPENT "IN THE NEGOTIATION OF A COLLECTIVE
 BARGAINING AGREEMENT." IT MUST BE HELD THAT, UNDER THE SPECIAL FACTUAL
 PATTERN PRESENTED HERE, THE PARTIES WERE NOT, DURING THE AFTERNOON OF
 NOVEMBER 5, 1979, ENGAGED "IN THE NEGOTIATION OF A COLLECTIVE BARGAINING
 AGREEMENT." IN LIGHT OF THE FOREGOING IT IS UNNECESSARY TO DECIDE
 WHETHER AN AGENCY WOULD BE OBLIGATED TO GRANT OFFICIAL TIME IN OTHER
 SITUATIONS ARISING OUT OF ACTUAL NEGOTIATIONS.  THE AUTHORITY'S DECISION
 ON NEGOTIABILITY IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 1962, 3 FLRA NO. 47 (MAY 30, 1980), IS OF SPECIAL
 INTEREST ON THIS POINT.  THE DECISION INVOLVED THE QUESTION OF WHETHER
 OFFICIAL TIME SHOULD BE GRANTED FOR TIME SPENT IN PREPARATION FOR
 CONTRACT NEGOTIATIONS.  THE AUTHORITY HELD:
 
    IN SUMMARY, AS INDICATED ABOVE, THE AMOUNT OF OFFICIAL TIME TO BE
 USED BY UNION NEGOTIATORS
 
    TO PREPARE FOR COLLECTIVE BARGAINING NEGOTIATIONS IS A MATTER WHICH
 FALLS WITHIN THE DUTY TO
 
    BARGAIN AS PROVIDED IN SECTION 7131(D) OF THE STATUTE, AS
 DISTINGUISHED FROM THE USE OF
 
    OFFICIAL TIME BY EMPLOYEES REPRESENTING AN EXCLUSIVE REPRESENTATIVE
 IN THE ACTUAL "NEGOTIATION
 
    OF A COLLECTIVE BARGAINING AGREEMENT" WHICH IS EXPRESSLY AUTHORIZED
 BY SECTION 7131(A) OF THE
 
    STATUTE ITSELF . . . .  MOREOVER, AS PREVIOUSLY STATED, THE USE OF
 OFFICIAL TIME TO PREPARE
 
    FOR NEGOTIATIONS IS A MATTER WHICH IS NOT EXCEPTED FROM THE DUTY TO
 BARGAIN AS "INTERNAL
 
    BUSINESS OF A LABOR ORGANIZATION" UNDER SECTION 7131(B) OF THE
 STATUTE.
 
    THE QUOTED LANGUAGE INDICATES THAT AN AGENCY MUST FIRST AGREE TO A
 GRANT OF OFFICIAL TIME FOR PERIODS SPENT IN PREPARATION FOR COLLECTIVE
 BARGAINING BEFORE MEMBERS OF A UNION BARGAINING COMMITTEE MAY RECEIVE
 OFFICIAL TIME FOR SUCH ACTIVITY.  HERE THE EVIDENCE INDICATES THAT THE
 UNION AND THE RESPONDENT DID NOT ENTER INTO SUCH AN AGREEMENT.
 
                                CONCLUSION
 
    IT IS CONCLUDED THAT A PREPONDERANCE OF THE EVIDENCE DOES NOT SUPPORT
 ALLEGATIONS THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1)(5) AND (8) OF
 THE STATUTE.  UPON THE BASIS OF THE FOREGOING, IT IS RECOMMENDED THAT
 THE AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5 C.F.R.SEC.
 2423.29(C).
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE CONSOLIDATED COMPLAINT RELATING TO CASE
 NO. 1-CA-195 AND CASE NO. 1-CA-196, BE, AND HEREBY IS, DISMISSED.
 
                               LOUIS SCALZO
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JANUARY 30, 1981
 
    WASHINGTON, D.C.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ AS TO THE JUDGE'S CONCLUSION REGARDING THE DUTY TO NEGOTIATE IN
 GOOD FAITH, THE AUTHORITY NOTES THAT SECTION 7114(B) OF THE STATUTE
 PROVIDES, IN RELEVANT PART, THAT SUCH DUTY SHALL INCLUDE THE OBLIGATION:
  "(1) TO APPROACH THE NEGOTIATIONS WITH A SINCERE RESOLVE TO REACH A
 COLLECTIVE BARGAINING AGREEMENT;  . . . (3) TO MEET AT REASONABLE TIMES
 AND CONVENIENT PLACES AS FREQUENTLY AS MAY BE NECESSARY, AND TO AVOID
 UNNECESSARY DELAYS . . . ." SEE ALSO, SECTION 7103(A)(12) (DEFINITION OF
 COLLECTIVE BARGAINING), AND DEPARTMENT OF THE AIR FORCE, SCOTT AIR FORCE
 BASE, ILLINOIS, 5 FLRA NO. 2(1981) IN WHICH BOTH OF THE PRECEDING
 SECTIONS WERE DISCUSSED.
 
    /2/ PRIOR TO THE HEARING, CASE NOS. 1-CA-16 AND 1-CA-103 WERE
 CONSOLIDATED, AND CASE NOS. 1-CA-195 AND 1-CA-196 WERE CONSOLIDATED.
 THE FOUR CASES WERE IN TURN CONSOLIDATED.  ON THE BASIS OF A STIPULATION
 OF THE PARTIES, AND CONSIDERATIONS RELATING TO EXPEDITIOUS DISPOSITION
 OF THE PROCEEDINGS, CASE NOS. 1-CA-195 AND 1-CA-196 WERE SEVERED FROM
 CASE NOS. 1-CA-16 AND 1-CA-103, AND THE TWO CONSOLIDATED PROCEEDINGS
 WERE SEPARATELY.  (TR. 3 AND 87, IN CASE NOS. 1-CA-16 AND 1-CA-103).
 DESPITE THE SEVERANCE, COUNSEL FOR THE GENERAL COUNSEL FILED A
 POST-HEARING BRIEF CONSOLIDATING ARGUMENT RELATING TO THE FOUR CASES.
 PORTIONS OF THE MENTIONED BRIEF RELATING TO CASE NOS. 16 AND 103 HAVE
 BEEN GIVEN NO CONSIDERATION IN CONNECTION WITH THE DISPOSITION OF CASE
 NOS. 1-CA-195 AND 1-CA196.
 
    /3/ COUNSEL FOR THE GENERAL COUNSEL UTILIZED THE LAST MENTIONED
 GENERAL ALLEGATION AS A BASIS FOR AN ATTEMPT TO PROVE THAT RESPONDENT
 VIOLATED SECTIONS 7116(A)(1) AND (5) OF THE STATUTE BY TRYING TO EFFECT
 THE NEGOTIATION OF ISSUES WHICH THE PANEL HAD PREVIOUSLY CONSIDERED AND
 RESOLVED (TR. 7-8).  ALTHOUGH THE ATTENTION OF COUNSEL FOR THE GENERAL
 COUNSEL WAS INVITED TO THE FAILURE TO ALLEGE SPECIFIC OTHER CONDUCT
 CALCULATED TO FRUSTRATE UNION ATTEMPTS TO CONSUMMATE A MEANINGFUL
 COLLECTIVE BARGAINING AGREEMENT, NO MOTION TO AMEND THE COMPLAINT WAS
 FILED OR OTHERWISE RAISED.  HOWEVER, THE ALLEGATION IN QUESTION WAS
 FULLY LITIGATED DURING THE COURSE OF THE HEARING, AND WAS SPECIFICALLY
 ADDRESSED BY THE PARTIES IN POST-HEARING BRIEFS.  UNDER THE SPECIAL
 CIRCUMSTANCES OUTLINED, THE GENERAL ALLEGATION ALLUDED TO IS, EXCEPT AS
 HEREINAFTER LIMITED, DEEMED TO INCLUDE ALLEGED ATTEMPTS TO EFFECT THE
 NEGOTIATION OF ISSUES WHICH THE PANEL HAD PREVIOUSLY CONSIDERED AND
 RESOLVED.  OKLAHOMA CITY AIR LOGISTICS CENTER, TINKER AIR FORCE BASE,
 OKLAHOMA, 3 FLRA NO. 82 (JUNE 27, 1980);  PHILADELPHIA NAVAL SHIPYARD, 4
 FLRA NO.  38 (SEPTEMBER 26, 1980).
 
    /4/ NATIONAL GUARD TECHNICIANS ARE EMPLOYED PURSUANT TO THE NATIONAL
 GUARD TECHNICIANS ACT OF 1968 AS AMENDED, 32 U.S.C. 709, IN FULL-TIME
 CIVILIAN POSITIONS TO ADMINISTER AND TRAIN THE NATIONAL GUARD AND TO
 MAINTAIN AND REPAIR THE SUPPLIES ISSUED TO THE NATIONAL GUARD OR THE
 ARMED FORCES.  AS A CONDITION OF THEIR CIVILIAN EMPLOYMENT UNDER THE
 ACT, SUCH TECHNICIANS MUST BECOME AND REMAIN MEMBERS OF THE NATIONAL
 GUARD AND HOLD THE MILITARY GRADE SPECIFIED FOR THE TECHNICIAN POSITION.
 
    /5/ COLONEL BECK'S TESTIMONY ALSO REFLECTS EVIDENCE OF NOTIFICATION
 TO THE UNION THAT THE RESPONDENT WOULD COMPLY WITH THOSE PORTIONS OF THE
 PANEL'S DECISION AND ORDER WHICH RELATED TO CONTRACT EXTENSION AND
 PERFORMANCE RATINGS (TR. 117-118).
 
    /6/ A HEARING IN THE CASE WAS HELD ON FEBRUARY 5, 1980;  AND ON APRIL
 9, 1980, ADMINISTRATIVE LAW JUDGE SALVATORE J. ARRIGO FOUND THAT
 RESPONDENT'S FAILURE TO COMPLY WITH THE MENTIONED PORTION OF THE PANEL'S
 DECISION AND ORDER CONSTITUTED A VIOLATION OF SECTIONS 7116(A)(1) AND
 (6) OF THE STATUTE.  JUDGE ARRIGO RECOMMENDED THAT THE AUTHORITY ISSUE A
 CEASE AND DESIST ORDER, AND REQUIRE OTHER AFFIRMATIVE RELIEF (JT.EXH.
 28).  SPECIFICALLY, IT WAS RECOMMENDED THAT THE AUTHORITY ORDER THE
 RESPONDENT TO CEASE AND DESIST FROM (A) REFUSING TO HONOR AND ABIDE BY
 THOSE PORTIONS OF THE JANUARY 9, 1979 DECISION AND ORDER OF THE PANEL
 WHICH RELATED TO THE WEARING OF THE MILITARY UNIFORM;  (B) REFUSING TO
 ADOPT CERTAIN LANGUAGE "IN THEIR COLLECTIVE BARGAINING AGREEMENT WITH
 (THE UNION)," AND (C) REFUSING TO AGREE UPON AND INCORPORATE IN THE
 COLLECTIVE BARGAINING AGREEMENT WITH (THE UNION), THOSE CIRCUMSTANCES
 AND OCCASIONS FOR WHICH THE WEARING OF THE MILITARY UNIFORM MAY BE
 REQUIRED.  COUNSEL FOR THE GENERAL COUNSEL STIPULATED THAT NEITHER
 FACTUAL FINDINGS NOR REMEDY WAS SOUGHT IN THE INSTANT CASE, WITH RESPECT
 TO THE RESPONDENT'S REFUSAL TO COMPLY WITH PORTIONS OF THE PANEL'S
 DECISION AND ORDER RELATING TO THE WEARING OF THE MILITARY UNIFORM, AND
 FURTHER THAT EVIDENCE RELATING TO ISSUES PERTAINING TO THE WEARING OF
 THE UNIFORM WOULD BE OFFERED SOLELY AS "BACKGROUND EVIDENCE.  (TR.
 13-14).
 
    /7/ THE CFTM TEST PROGRAM WAS DESIGNED TO DETERMINE THE NATIONAL
 GUARD'S CAPACITY TO ATTRACT PERSONNEL INTO MILITARY POSITIONS WHICH HAD
 BEEN FILLED WITH CIVILIAN MEMBERS OF THE BARGAINING UNIT REPRESENTED BY
 THE UNION.  BECAUSE MILITARY PERSONNEL WERE EXCLUDED FROM THE BARGAINING
 UNIT, THE PROGRAM WAS, OF CONCERN TO THE UNION.  CASE NOS. 1-CA-16 AND
 1-CA-103, SEVERED PRIOR TO HEARING, WERE BASED ON ALLEGED UNFAIR LABOR
 PRACTICES ARISING OUT OF THE RESPONDENT'S IMPLEMENTATION OF THE PROGRAM.
 
    /8/ THE FOLLOWING ARTICLES, TENTATIVELY AGREED TO BY THE PARTIES