16:0398(66)CA - Delaware Army and Air NG and ACT, Delaware Chapter -- 1984 FLRAdec CA



[ v16 p398 ]
16:0398(66)CA
The decision of the Authority follows:


 16 FLRA No. 66
 
 DELAWARE ARMY AND AIR NATIONAL GUARD
 Respondent
 
 and
 
 ASSOCIATION OF CIVILIAN TECHNICIANS,
 DELAWARE CHAPTER
 Charging Party
 
                                            Case No. 23-CA-104
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 the unfair labor practices alleged in the complaint, and recommending
 that it be ordered to cease and desist therefrom and take certain
 affirmative action.  Although no timely exceptions were filed, /1/ since
 the Judge's Decision was issued prior to the effective date of the
 amendment to section 2423.29(a) of the Authority's Rules and
 Regulations, /2/ the Authority shall consider the merits of this case.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 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.  /3/ Upon consideration of
 the entire record in this case, the Authority hereby adopts the Judge's
 findings, conclusions and Recommended Order, to the extent consistent
 herewith.
 
    The complaint, as amended, alleges that the Delaware Army and Air
 National Guard (the Respondent) violated section 7116(a)(1) and (5) of
 the Statute by refusing to bargain in good faith with the Charging
 Party, the Association of Civilian Technicians, Delaware Chapter (ACT),
 the exclusive representative of its civilian technicians, concerning the
 impact of an announced test program whereby full-time military personnel
 would be used to fill vacancies in positions formerly occupied by
 civilian employees, and by unilaterally implementing the change in
 practice without affording the ACT an opportunity to negotiate
 concerning such implementation.
 
    ACT made seven specific proposals upon being informed of the
 Respondent's intent to institute the test program.  The sole issue is
 whether the Respondent violated the Statute by refusing to negotiate
 concerning those seven proposals, considered separately below.
 
    Proposal No. 1.
 
          Wearing of the military uniform.
 
          Since the advent of the military test program it has become
       more essential that a differentiation is established to identify
       those employees in a civilian status.  Therefore, it shall be the
       policy of the labor organization and the employer that no civilian
       employee be required to wear a military uniform.
 
    The Judge found that the Respondent did not violate section
 7116(a)(1) and (5) of the Statute by refusing to bargaining concerning
 this proposal because, in his view, the proposal was not "germane" to
 the Respondent's underlying decision to fill with military personnel
 vacancies in positions formerly occupied by civilian employees.  Without
 passing on the Judge's specific conclusion in this respect, the
 Authority agrees that no violation was committed.  In the Authority's
 view, the issues presented herein are substantially similar to those set
 forth in the Authority's Decision and Order Upon Remand issued in
 Division of Military and Naval Affairs, State of New York, Albany, New
 York, 15 FLRA No. 65 (1984), wherein the Authority found that the
 determination by the National Guard Bureau that technicians must wear
 the military uniform while performing technician duties constituted
 management's choice of a "methods and means of performing work" within
 the meaning of section 7106(b)(1) of the Statute.  Accordingly, and for
 the reasons expressed in State of New York, the Authority finds that the
 Respondent's election not to bargain upon this matter did not constitute
 a violation of section 7116(a)(1) and (5) of the Statute.
 
    Proposal No. 2
 
          Area of Consideration
 
          Full consideration for all vacancies shall be given to all
       on-board technicians of the Delaware Army and Air National Guard.
       When applicants from the full time (sic) technician force do not
       meet the mandatory qualifications required for the position
       announced, the position shall be filled by a technician in a
       training status, unless no technician applies.
 
          Merit System principles and merit system prohibited practices
       as outlined in P.L. 95-454, Sections 2301 and 2302, be recognized
       and adhered to by the employer at all times.
 
    The Respondent contended that this proposal was nonnegotiable as it
 violated management's right to fill or not to fill positions.  The Judge
 concluded that the proposal was not negotiable, finding that it was not
 germane to the underlying decision but rather was an attempt to
 negotiate the decision itself.  In Association of Civilian Technicians,
 New York State Council and State of New York, Division of Military and
 Naval Affairs, Albany, New York, 11 FLRA No. 81 (1983), the Authority
 held with respect to identical language (Union proposal 1) that the
 first and third sentences of this proposal are within the duty to
 bargain while the second sentence is inconsistent with management's
 right to make selections under section 7106(a)(2)(C) and therefore is
 nonnegotiable, and that the agency in that case was required to bargain
 concerning the first and third sentences.  For the reasons expressed
 therein and inasmuch as this proposal is reasonably related to the
 Respondent's underlying decision, the Authority finds that the
 Respondent was obligated to bargain with respect to the first and third
 sentences of this proposal as to the impact and implementation of its
 decision to fill vacancies with military personnel, and that it violated
 section 7116(a)(1) and (5) by failing to do so.
 
    Proposal No. 3.
 
          Reduction in force.
 
          In the event of a reduction in force action, all those
       positions filled by other than career or permanent technicians
       shall be vacated and made available to those career or permanent
       technicians being displaced.  When necessary, training for
       employees shall be the policy and vacancies be made available.
 
    The Judge found that the Respondent violated the Statute by refusing
 to bargain concerning this proposal.  However, in New York State
 Council, supra (Union Proposal 4), the Authority held that a
 substantially identically worded proposal was nonnegotiable in that it
 directly interfered with management's right to remove employees under
 section 7106(a)(2)(A) of the Statute, and accordingly the complaint
 herein is dismissed with respect to the above proposal.
 
    Proposal No. 4.
 
          Details.
 
          While it is recognized that details of employees to work in
       positions not normally assigned is sometimes necessary, it shall
       not be the policy or practice to detail employees in such a manner
       that would discriminate against the employees' rights to merit
       promotion, protection under reduction-in-force actions, upward
       mobility, equal employment opportunity and/or labor organization
       membership.
 
    The Respondent contended that this proposal would preclude the
 reassignment of military personnel not covered by the Statute, and that
 it was, therefore, nonnegotiable.  The Judge concluded that performance
 of available work by bargaining unit members was a matter on which the
 Respondent was required to bargain, and that its refusal to do so
 violated the Statute.  We agree.  There does not appear to be any
 dispute that this proposal would apply only to civilian technicians
 within the bargaining unit exclusively represented by ACT.  In accord
 with New York State Council, supra (Union Proposal 6), we find that the
 proposal is within the duty to bargain, and that the Respondent's
 refusal to do so violated section 7116(a)(1) and (5) of the Statute.
 
    Proposal No. 5.
 
          Upward mobility.
 
          Career or permanent technicians shall be given first available
       opportunity for positions in the bargaining unit, as per position
       description, to train for future vacancies in the interest of
       upward mobility.
 
    The Respondent contended that this proposal was nonnegotiable in that
 it would interfere with management's right, in filling positions, to
 consider fully and lesser qualified candidates under its Merit Placement
 Plan.  The Judge concluded that the Respondent was obligated to bargain.
  We agree.  The Authority finds that the foregoing proposal would not
 interfere with management's right to consider or select candidates from
 any appropriate source in filling bargaining unit positions, and
 therefore agrees with the Judge that the Respondent violated section
 7116(a)(1) and (5) of the Statute by refusing to bargain concerning such
 proposal.  In so concluding, the Authority notes that an identical
 proposal was held to be within the duty to bargain in New York State
 Council, supra (Union Proposal 3).
 
    Proposal No. 6.
 
          Equal Employment Opportunity.
 
          No position in the bargaining unit, as described in the
       position description, shall be in any manner filled that would
       circumvent the E.E.O. rights of any member of the bargaining unit.
 
    The Respondent contended that the specific details relating to this
 proposal are covered under its Merit Promotion Plan, and that ACT's
 failure to address the issue during its 10 years of exclusive
 recognition renders the proposal nonnegotiable.  The Judge found that
 the proposal was not negotiable in that it was not germane to the change
 initiated by the Respondent, but instead sought to negotiate
 Respondent's underlying decision to fill the six vacancies with military
 personnel.  The Authority disagrees.  The proposal merely would require
 the Respondent to act in a manner consistent with law;  constitutes an
 affirmation of rights already in existence;  and addresses an area of
 legitimate concern in the implementation of the Respondent's decision to
 fill the vacancies with military personnel.  Accordingly, the Authority
 finds that the Respondent violated section 7116(a)(1) and (5) of the
 Statute when it refused to negotiate concerning this proposal.  /4/
 
    Proposal No. 7.
 
          Employee rights.
 
          Both the Union and management recognize that law does not allow
       full time military personnel to belong to or otherwise act for a
       labor organization.  The law does, however, recognize that
       civilian technicians of the National Guard have the right, under
       the provisions of the Civil Service Reform Act of 1978 and the
       same extent as most federal employees, to belong or act for a
       recognized labor organization.
 
    The Respondent contended that this proposal did not deal with the
 impact of its underlying decision but rather reflected existing
 Department of Defense policy.  The Judge found that Respondent's refusal
 to negotiate concerning this proposal constituted a violation of section
 7116(a)(1) and (5) of the Statute.  The Authority agrees, for the
 reasons stated by the Judge.  /5/
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Authority and section 7118 of the Statute, it is hereby ordered that
 Delaware Army and Air National Guard shall:
 
    1.  Cease and desist from:
 
    (a) Refusing to bargain in good faith with the Association of
 Civilian Technicians, Delaware Chapter, the exclusive representative of
 its civilian technicians, concerning the impact and implementation of
 its decision to fill designated vacancies with full-time military
 personnel, including, but not limited to, the exclusive representative's
 proposals previously submitted to the Respondent and found herein to be
 within the duty to bargain.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Upon request, bargain in good faith with the Association of
 Civilian Technicians, Delaware Chapter, the exclusive representative of
 its civilian technicians, concerning the impact and implementation of
 its decision to fill certain vacancies with full-time military
 personnel, including, but not limited to, the exclusive representative's
 proposals previously submitted to the Respondent and found herein to be
 within the duty to bargain.
 
    (b) Post at its facilities, copies of the attached Notice on forms to
 be furnished by the Federal Labor Relations Authority.  Upon receipt of
 such forms, they shall be signed by the Adjutant General, or his
 designee, and shall be posted and maintained for 60 consecutive days
 thereafter in conspicuous places, including all bulletin boards and
 other places where notices to employees are customarily posted.
 Reasonable steps shall be taken to insure that said Notices are not
 altered, defaced, or covered by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region II, in writing, within
 30 days from the date of this Order, as to what steps have been taken to
 comply herewith.  
 
 Issued, Washington, D.C., November 9, 1984
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                          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 refuse to bargain in good faith with the Association of
 Civilian Technicians, Delaware Chapter, the exclusive representative of
 our civilian technicians, concerning the impact and implementation of
 our decision to fill designated vacancies with full-time military
 personnel, including, but not limited to, the exclusive representative's
 proposals previously submitted and found by the Authority to be within
 the duty to bargain.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Statute.
 
    WE WILL, upon request, bargain in good faith with the Association of
 Civilian Technicians, Delaware Chapter, the exclusive representative of
 our civilian technicians, concerning the impact and implementation of
 our decision to fill designated vacancies with full-time military
 personnel, including, but not limited to, the exclusive representative's
 proposals previously submitted and found by the Authority to be within
 the duty to bargain.
                                       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 question concerning this Notice, or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director, Region II, Federal Labor Relations Authority, whose
 address is:  Room 241, 26 Federal Plaza, New York, New York 10278, and
 whose telephone number is:  (212) 264-4934.
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    DELAWARE ARMY AND AIR NATIONAL GUARD
                                Respondent
 
    and
 
    ASSOCIATION OF CIVILIAN TECHNICIANS,
    DELAWARE CHAPTER
                              Charging Party
 
                                       Case No. 23-CA-104
 
    Mathilde L. Genovese, Esquire
    For the General Counsel
 
    Charles Gruver, Esquire
    Captain Walter G. Powell
    For the Respondent
 
    Mr. Thomas J. Owsinski
    Mr. Terry L. Habron
    For the Charging Party
 
    Before:  WILLIAM B. DEVANEY
    Administrative Law Judge
 
                            DECISION AND ORDER
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the United States Code, 5
 U.S.C. 7101, et seq.  /6/ and the Final Rules and Regulations issued
 thereunder, Federal Register, Vol. 45, No. 12, January 12, 1980, 5
 C.F.R. Chapter XIV.  The charge, dated April 3, 1979, was filed on April
 4, 1979 (G.C. Exh. 1(a)) and alleged a refusal to bargain in good faith
 on the impact of the "Full Time Manning Program", as to which the
 Association of Civilian Technician, Delaware Chapter (hereinafter, also,
 referred to as "ACT") had requested negotiations on January 30, 1979, on
 various dates from January 30, 1979, to and including March 8, 1979,
 when Respondent implemented the program, all of which violated Section
 16(a)(5) and (8) of the Statute.
 
    An amended charge, dated January 10, 1980, was filed on January 15,
 1980 (G.C. Exh. 1(c)) altered the name of Activity and/or Agency from
 "Delaware Army National Guard" to "Delaware Army and Air National Guard"
 but asserted the same basis as previously set forth in the charge of
 April 3, 1979 (G.C. Exh. 1(a)) and alleged such conduct to have violated
 Sections 16(a)(1), (5) and (8) of the Statute.  /7/ On April 24, 1980,
 the Complaint and Notice of Hearing issued (G.C. Exh. 1(e)).  The
 Complaint alleged in relevant part as follows:
 
          "7.  On or about January 30, 1979, the Union requested that
       Respondent negotiate concerning the impact and implementation of
       an announced test program whereby full time military personnel
       would be used to fill vacancies in positions formerly occupied by
       civilian employees . . . .
 
          "8.  Since on or about March 6, 1979 and at all times
       thereafter, Respondent has refused and continues to refuse to
       negotiate with the Union concerning the change in practice
       described above in paragraph 7.
 
          "9.  On or about March 8, 1979, Respondent unilaterally, and
       without affording the Union the opportunity to negotiate,
       implemented the change in practice described about in Paragraph 7,
       and at all times thereafter has continued to enforce this
       practice."
 
 The Complaint alleged that by such acts Respondent violated Section
 16(a)(1) (paragraph 10), (5) (paragraph 11) and (8) (paragraph 12) of
 the Statute.  /8/ At the hearing, General Counsel moved to amend the
 Complaint to delete paragraph 12, which had alleged "By the acts
 described above in paragraphs 8 and 9 . . . Respondent has failed and
 refused to comply with the provisions of Section 7114(a) and 7117(a) of
 the Statute, in violation of Section 7116(a)(8) of the Statute".
 General Counsel's motion was granted (Tr. 44), and the Complaint was
 amended, as requested, to delete paragraph 12.  No other request to
 amend the Complaint has been made.
 
    The Notice of Hearing set the hearing for July 17, 1980;  however,
 following separate motions for postponement filed by Respondent and by
 General Counsel, and for good cause shown, the hearing, on June 20,
 1980, was rescheduled for August 19, 1980, and on August 11, 1980, was
 further rescheduled for September 4, 1980, pursuant to which a hearing
 was duly held before the undersigned on September 4, 1980, in
 Wilmington, Delaware.
 
    All parties were represented at the hearing;  however, Respondent
 limited its participation to the presentation of two motions:  First, a
 motion, brought pursuant to Sec. 2423.19(m) of the Regulations, whereby
 Respondent contended that it had never been given, as required by Sec.
 2423.7 of the Regulations, the opportunity to present its views during
 the investigative stage;  and Second, a motion in three alternatives,
 (a) postponement of the hearing to permit further investigation,
 including presentation of Respondent's views and evidence;  or (b) an
 order requiring the Authority's resident investigator, Mr. Joseph P.
 Hickey, to be made available for questioning concerning any
 investigation conducted;  /9/ or (c) postponement so that judicial
 action seeking a temporary restraining order could be filed.  Having
 heard argument, Respondent's motions were denied and, professing its
 desire to protect its legal position, which Respondent believed might be
 compromised if it participated further in the hearing, Respondent, after
 being cautioned that the hearing would proceed with or without
 Respondent's presence, elected to withdraw from the hearing and,
 accordingly, its representatives did withdraw from the hearing (Tr. 43).
 
    All parties, including Respondent who elected not to exercise it,
 were afforded full opportunity to be heard and General Counsel presented
 evidence and testimony bearing on the issues involved.  At the
 conclusion of the hearing, October 6, 1980, was fixed as the date for
 mailing post hearing briefs and counsel for General Counsel was
 instructed to advise Respondent's representatives in writing of the date
 for filing post hearing briefs.  Accordingly, counsel for Respondent and
 for the General Counsel timely mailed post hearing briefs, received on
 or before October 8, 1980, which have been carefully considered.  Upon
 the basis of the entire record I make the following findings and
 conclusions:
 
           I.  Respondent's Motion Relative to Investigation of
 
                Charge.
 
    Respondent's contentions, after full argument, were denied at the
 opening of the hearing;  however, Respondent's brief, which is directed
 wholly to reiteration of these arguments, reasserts the arguments and it
 is appropriate, for the record, to address Respondent's basic
 contention.  Although stated in various ways, Respondent's basic
 contention is that,
 
          " . . . In the present case, the FLRA failed to properly
       contact the DNG (Delaware National Guard) at any time during the
       true investigative stage of Case No. 3-CA-104, to allow it to
       present any relevant evidence and its views." (Res. Brief, p. 4).
 
 Not only is the assertion patently false, as the Regional Office of the
 Authority, by letter dated April 11, 1979, had advised Respondent that
 "An unfair labor practice charge had been filed" by ACT in Case No.
 3-CA-104;  "A copy of the charge is enclosed";  and requested "Your
 response to the charge . . . ." (Res. Brief, App., Exh. J) and
 Respondent readily admits that "DNG did not respond to this request . .
 . ." (Res. Brief, Affidavit of Walter G. Powell, III, Par. 9);  but
 neither the quality nor manner of the General Counsel's investigation of
 a charge are properly cognizable in a complaint proceeding.  Section
 4(f)(2) of the Statute provides that,
 
          "(2) The General Counsel may--
 
          "(A) investigate alleged unfair labor practices under this
       chapter,
 
          "(B) file and prosecute complaints under this chapter . . . ."
 
 and Sec. 18(a)(1) of the Statute provides that,
 
          "(a)(1) If any agency or labor organization is charged by any
       person with having engaged in or engaging in an unfair labor
       practice, the General Counsel shall investigate the charge and may
       issue and cause to be served upon the agency or labor organization
       a Complaint.  . . . "
 
 The Regulations provide, in part, as follows:
 
          Section 2423.6(b) provides, in part, that
 
          " . . . The Regional Director will, as a matter of course,
       cause a copy of such charge to be served on the person(s) against
       whom the charge is made, but shall not be deemed to assume
       responsibility for such service.
 
          Section 2423.7 provides, in part, as follows:
 
          "(a) The Regional Director, on behalf of the General Counsel,
       shall conduct such investigation of the charges as the Regional
       Director deems necessary.
 
          "(b) During the course of the investigation all parties
       involved will have an opportunity to present their evidence and
       views to the Regional Director.  . . . "
 
    Thus, while the Statute provides, inter alia, that the General
 Counsel "shall investigate the charge" it does not purport to impose any
 particular standard for such investigation but, rather, leaves the
 investigation to the sound discretion of the General Counsel.  The
 Regulations further provide, in part, that the Regional Director, on
 behalf of the General Counsel, "shall conduct said investigation of the
 charge as the Regional Director deems necessary", which negates
 Respondent's contention that the investigation must conform to any
 particular format, here, apparently that the Regional Director, or his
 agent, personally talk to Respondent's representatives.  Although the
 Regulations do provide that "During the course of the investigation all
 parties involved will have an opportunity to present their evidence and
 views to the Regional Director" (Sec. 2423.7(b)), Respondent, in this
 case, certainly was afforded the opportunity to submit its views to the
 Regional Director.  Respondent was free to decline any response the
 charge, as it did;  but the Regional Director was required by the
 Regulations to conduct only such investigation as he "deems necessary".
 Indeed, as I stated at the hearing, the purpose of the General Counsel's
 investigation of a charge is to determine whether there is, in his
 judgement, probable cause to believe that an unfair labor practice has
 occurred in which case he may issue a Complaint.  The purpose of the
 hearing is to determine, on the basis of the evidence and testimony,
 whether the allegations of the Complaint are true.
 
    Respondent's attempt to explore the nature or manner of the
 investigation, inter alia by the subpoena of the investigation, Mr.
 Hickey, or by an order requiring the investigator to answer questions,
 not only was highly specious in view of its own refusal to respond to
 the Regional Director's letter, of April 11, 1979, but was, in any
 event, part and parcel of its basic assertion that the Authority "failed
 to properly contact the DNG at any time during the true investigative
 stage of case No. 3-CA-104, to allow it to present any relevant evidence
 and its views" which, for reasons stated, is without basis.
 
    Nevertheless, even if the General Counsel, or the Regional Director
 acting on his behalf, had failed to investigate the charge or to afford
 Respondent an opportunity to present its views, compliance with such
 provisions of the Regulation pertaining to investigation of a charge
 prior to issuance of a complaint is not a jurisdictional requirement in
 a complaint case.  Cf. Dairylee, Inc. and Local 653, International
 Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
 America, 149 NLRB 829, 830, n.1 (1964).
 
    Nor, of course, may Respondent assert any possible prejudice in the
 failure of the Authority to afford Respondent an opportunity to settle
 the case.  The letter of April 11, 1979, stated, in part, that:
 
          "Although a formal charge has been filed, the parties are
       encouraged to meet and attempt to resolve the matter.  The staff
       member assigned the case is available to assist the parties in
       arriving at a settlement in the matter." (Res. Brief, App., Exh.
       J).
 
 At the hearing, Respondent was further offered the opportunity to
 discuss settlement which Respondent declined.
 
    Accordingly, Respondent's motions, for reasons stated at the hearing
 and herein, are denied.
 
                   II.  Conversion to Full Time Military
 
    The Report of the House Committee on Appropriations on the Department
 of Defense Appropriation Bill, 1979 (H. Rep. No. 95-1398, 95th Cong.,
 2d/Sess., July 27, 1978, G.C. Exh. 29), noting, inter alia, concern
 about the high cost of the technical program, /10/ recommended the
 establishment of a test program, in Reserve components other than the
 Navy and Marine Corps which have demonstrated workable full-time
 military support programs, by:
 
          "(1) Converting the full-time training site support to military
       personnel in lieu of using commercial contract as proposed in the
       budget;
 
          "(2) Filling all vacancies which occur in positions currently
       held by 'status quo' technicians with full-time reservists on
       active duty;  and
 
          "(3) Filling all positions not manned at the end of fiscal year
       1978 and all new positions added to the structure in fiscal year
       1979 with full-time active duty military support.  Although dual
       status technician vacancies can continue to be filled by dual
       status technician, the Committee believes that the Chief of the
       Reserve forces should also attempt to fill some of these with
       full-time military support.
 
          "This test program will give the Reserve components an
       opportunity to determine if they can recruit personnel to fill
       these positions with full-time military personnel.  Also, it may
       be necessary to change certain military personnel policies, such
       as regular rotation . . . ." (G.C. Exh. 29, p. 223).
 
    There can be no question of ACT's interest in, and concern about, the
 program, which interest and concern was unquestionably heightened by
 references in Report No. 95-1398 to a prior report, No. 95-451, critical
 of the technician program because of unionization of the military, and
 to the Defense Manpower Commission report which had pointed out that:
 
          "(1) current 'status quo' policies threaten the mobilization
       effectiveness of the two components which employ technicians in
       the competitive service, particularly the Army Reserve;
 
          "(2) labor union activity in technician program has increased,
       with a resultant dilution of military command authority,
       organizational effectiveness, and discipline;
 
          "(3) technician programs contribute significantly to grade
       stagnation and limit career opportunities for non-technicians,
       particularly younger reservists;
 
          "(4) technician programs encourage an aging force and produce
       questionable mobilization assets." (G.C. Exh. 29, p. 222).
 
 Report No. 95-1398 further noted that "The Full-Time Training and
 Administrative Report concluded that the Department of Defense should
 move away from the technician concept unless three requirements were
 met.  These three included:
 
          "(1) the status of all technicians was changed from competitive
       to accepted civil service, thereby preventing a technician from
       holding his job as a technician when he is not eligible to be a
       member of the military unit he serves;
 
          "(2) the Reserve components be granted exclusion from Executive
       Order 11491 which requires that they bargain with labor unions;
       and
 
          "(3) the wage board pay system undergoes significant reform."
       (G.C. Exh. 29, p. 222).
 
 Report No. 95-1398 defined "dual-status technician" as follows:
 
          "The dual-status technician occupies a civilian job that is
       essentially similar to the military occupation he has in the
       Reserve component.  The civilian grade and pay rate and the
       military rank and pay are, by regulations, similar.  A technician,
       in addition to the civilian pay he receives, is paid for his
       participation as a member of the Reserve." (G.C. Exh. 29, p. 221).
 
    This case involves solely the impact and implementation of the
 conversion to full-time military (hereinafter, referred to as "FTM"
 which is also designated in various documents as "CFTM" or as "Full Time
 Manning";  however, the designations, i.e., "FTM" and "CFTM" have
 precisely the same meaning) of designated positions pursuant to the
 notice of February 23, 1979, subsequently reduced from nine to six by
 the notice of February 28, 1970 (See footnote 8, supra).
 
              III.  Alleged refusal to bargain on impact and
 
                implementation
 
    In November 1978, Mr. Terry L. Habron, President of the Delaware
 Chapter of ACT, was informed by Captain Walter G. Powell of the test
 program of FTM in the reserve components, including the Army and Air
 National Guard, and was given a copy of a TWX dated November, 19788
 (G.C. Exh. 3).  After receiving the November, 1978, TWX, Mr. Habron
 contacted Captain Powell to determine whether any additional, or more
 specific, information was available and Captain Powell informed him that
 no further information was then available.  On January 30, 1979, Mr.
 Habron wrote Captain Powell and requested bargaining on the impact and
 implementation of the FTM program (G.C. Exh. 4).  Captain Powell agreed
 and, on February 16 (G.C. Exh. 6) set a meeting for February 23, 1979.
 Mr. Habron testified that no meeting was held on February 23 but that on
 February 23 he received Captain Powell's letter, dated February 23, 1979
 (G.C. Exh. 7), which gave additional information and stated that three
 existing vacancies in the Delaware Air National Guard and six vacancies
 in the Delaware Army Guard were to be converted to FTM.  Indeed, Captain
 Powell's letter states that he had called Mr. Habron on February 13 to
 inform him about the two messages and that Mr. Habron had said he would
 pick them up on February 14 but that he, Habron, had not done so.
 
    On February 28, 1979, Mr. Habron attended a meeting, initiated by
 Captain Powell to discuss the FTM program, at which Major Adams, the
 Project Officer of the FTM test program, was chief spokesman for
 Respondent.  Mr. Habron was given a copy of General Ianni's letter,
 dated February 28, 1979 (G.C. Exh. 8), which listed the eight positions
 to be advertised for civil service technicians and the three positions
 to be advertised for FTM in the Delaware Army Guard;  however, the
 letter further stated, " . . . if any of the positions advertised as
 technician positions are not filled by present on-board technicians, the
 selectee must be hired for a two year active duty tour under Title 32 of
 the United States Code" and Paragraph 3b. provided, in part, that:
 
          "3.b.  The Title 32 (Full Time Military) is a test program . .
       .  If it is successful, we except it to continue indefinitely, if
       it is not successful, and the program is discontinued, those hired
       under the Title 32 program will be eligible to compete for the
       same positions within the civil service system . . . ." (G.C. Exh.
       8).
 
    Major Adams, in response to Mr. Habron's request to bargain on impact
 and implementation, asserted that, because no collective bargaining
 agreement existed, ACT had no right to bargain but could present views.
 Major Adams was clearly in error as a union's representation rights,
 pursuant to Sec. 14 of the Statute, flow from its status as exclusive
 representative of the employees in the unit it represents, /11/ not from
 the existence of a collective bargaining agreement;  however, as the
 parties subsequently met and ACT presented bargaining proposals, Major
 Adams' statement had no significant effect.  On March 1, 1979, at the
 conclusion of a meeting concerning negotiations of ground rules for
 contract negotiations, Captain Powell asked whether ACT had any
 additional views on FTM and Mr. Thomas Owsinski, an ACT National Field
 Representative, responded by asserting that ACT had a right to negotiate
 on impact and implementation of the FTM program.  Colonel Gallagher, who
 had been called to attend the meeting when the subject of FTM arose,
 agreed to meet with ACT but insisted that they meet the following day,
 while Mr. Owsinski insisted that ACT needed at least two weeks to
 prepare its proposals.  Colonel Gallagher ultimately agreed to give ACT
 a week to submit its proposals.  ACT presented its proposals to
 Respondent at a meeting held on March 6, 1979.  Present at the March 6
 meeting for Respondent were:  Colonel Gallagher, Major Adams, and
 Captain Powell;  and for ACT:  Mr. Habron, V.P. Robert Davis, ACT's
 Chief Negotiator, Mr. Haig Stubblebine, and National Field
 Representative, John Giarruso;  and, in addition, a federal mediator was
 present at ACT's request.  The right to negotiate on impact and
 implementation of a decision pursuant to a reserved right of management,
 recognized under Executive Order 11491, as amended, see, for example,
 AFGE Local 1940 and Plum Island Animal Disease Laboratory, Department of
 Agriculture, Greenport, N.Y., FLRC No. 71A-11, 1 FLRC 100 (1971);  U.S.
 Department of Air Force, Norton Air Force Base, A/SLMR No. 261, 3 A/SLMR
 175 (1973), was specifically incorporated in Sec. 6(b)(2) and (3) of the
 Statute, and the duty is to negotiate, Department of Treasury, Internal
 Revenue Service, Jacksonville District, 3 FLRA No. 103 (1980), not
 merely to present views or to consult, Department of Health, Education
 and Welfare, Social Security Administration, Great Lakes Program Service
 Center, Chicago, Illinois, 2 FLRA No. 73 (1980).  Of course, absent
 impact, i.e., the decision did not affect or change employee terms and
 conditions of employment, no obligation to meet and confer arises and
 the failure to do so does not constitute a refusal in bargain,
 Department of the Navy, Norfolk Naval Shipyard, A/SLMR No. 805, 7 A/SLMR
 199 (1977);  Social Security Administration, Bureau of Hearings and
 Appeals, A/SLMR No. 979, 8 A/SLMR 148 (1978);  Department of Defense,
 United States Army, Fort Sam Houston, Texas, 1 FLRA No. 68 (1979);
 Department of Defense, Air National Guard, Texas Air National Guard,
 Camp Mabry, Austin, Texas, A/SLMR No. 738, 6 A/SLMR 59 (1976);  /12/
 nevertheless, typically, decisions seldom have gone beyond determining
 whether a condition of employment has been changed, whether adequate
 notice was given, and whether the union requested negotiations on impact
 and/or implementation.  Even where there is no immediate impact, there
 may be an obligation to bargain where future impact is reasonably
 probable, U.S. Government Printing Office and Joint Committee of Unions,
 GPO, Case No. 3-CA-549 (ALJ, April, 1981).
 
    Here, of course, impact is assumed /13/ and the question is whether
 ACT's proposals were negotiable.  Bargaining on impact and
 implementation is markedly different from contract negotiations in
 various respects.  First, the change in condition of employment, as a
 reserved right of management, is not negotiable.  Second, union
 proposals, to be subject to mandatory bargaining, must be germane to the
 action taken by agency management, or as provided by Sec. 6(b)(2) and
 (3) of the Statute, must concern "(2) procedures which management
 officials of the agency will observe in exercising any authority under
 this section;  or (3) appropriate arrangements for employees adversely
 affected by the exercise of any authority under this section.  . . . "
 Consequently, proposals, which would be negotiable in other contexts,
 are not subject to mandatory bargaining in impact negotiations if they
 are not germane to the action taken.  /14/
 
    ACT's proposals, addressed hereinafter, were discussed and ACT, with
 full knowledge that Respondent had found each non-negotiable, declined
 to make any other proposal.  While there may well be an obligation to
 make counter proposals on negotiable matters of impact, Respondent was
 under no obligation to make counter proposals to the possible impact of
 its decision.  In short, if ACT's proposals were not germane, Respondent
 did not refuse to negotiate in good faith;  but if ACT's proposals were
 germane, Respondent's refusal to negotiate violated Sec. 16(a)(5) and
 derivatively, also, violated Sec. 16(a)(1) of the Statute.  /15/ ACT's
 proposals were as follows:
 
    Proposal No. 1
 
          "Wearing of the military uniform.
 
                                  * * * *
 
          "Since the advent of the military test program it has become
       more essential that a differentiation is established to identify
       those employees in a civilian status.  Therefore, it shall be the
       policy of the labor organization and the employer that no civilian
       employee be required to wear a military uniform." (G.C. Exh. 9).
 
 Respondent's response was that, "Present policy . . . is that all
 technician will wear the appropriate military uniform . . .  Those
 directives do not have an impact on the implementation of Full Time
 Manning and the proposal is, therefore, non-negotiable." (G.C. Exh 10).
 I agree that ACT's proposal No. 1 was not negotiable but not necessarily
 for the reasons stated by Respondent.  I find that this proposal was not
 germane to Respondent's decision to fill six vacancies with full time
 military personnel, i.e., did not concern procedures to be observed in
 exercising this authority nor concern appropriate arrangements for
 employees adversely affected by the exercise of such authority.  This is
 not to say that the subject, "Wearing of the military uniform" is not a
 negotiable matter when properly raised as a matter for negotiation, but,
 rather, that it may not be injected as a subject for mandatory
 negotiations in bargaining on impact and implementation pursuant to Sec.
 6(b)(2) and (3) of the Statute.  Indeed, as General Counsel notes in his
 Brief, the wearing of the military uniform was resolved during contract
 negotiations (General Counsel Brief, p. 5 n. 5).
 
    Proposal No. 2.
 
          "Area of Consideration.
 
                                  * * * *
 
          "Full consideration for all vacancies shall be given to all
       on-board technicians of the Delaware Army and Air National Guard.
       When applicants from the full time technician force do not meet
       the mandatory qualifications required for the position announced,
       the position shall be filled by a technician in a training status,
       unless no technician applies.
 
          Merit system principles and merit system prohibited practices
       as outlined in P.L. 95-454, Sections 2301 and 2302, be recognized
       and adhered to by the employer at all times." (G.C. Exh. 9).
 
 Respondent's response was, "This proposal is in violation of the
 management right provision, to fill or not fill a position as authorized
 in previous labor relations counsel decisions and is therefore
 non-negotiable." (G.C. Exh. 10).  I agree that ACT's Proposal No. 2 was
 not negotiable but not necessarily for the reason stated by Respondent.
 Proposal No. 2 was not germane to Respondent's decision to fill six
 vacancies with full time military personnel, which is conceded in this
 proceeding to have been a reserved right of management pursuant to Sec.
 6(a) of the Statute;  but, to the contrary, obviously, was an attempt to
 "negotiate" the decision to fill vacancies with full time military
 personnel which, as a reserved right of management, was not negotiable.
 
    Proposal No. 3.
 
          "Reduction in force.
 
                                  * * * *
 
          "In the event of a reduction in force action, all those
       positions filled by other than career or permanent technicians
       shall be vacated and made available to those career or permanent
       technicians being displaced.  When necessary, training for
       employees shall be the policy and vacancies be made available."
       (G.C. Exh. 9).
 
 Respondent's response was, "Procedures as directed by Technician
 Personnel Manual 351 govern all reduction-in-force actions for
 technicians.  Full Time Manning is a military matter.  Both are
 addressed in specific non-related regulations and are therefore
 non-negotiable." (G.C. Exh. 10).  I do not agree.  The decision to fill
 six existing vacancies with full time military personnel, while conceded
 in this proceeding to be a reserved right of management, nevertheless,
 potentially adversely affects members of the bargaining unit in the
 event of a future reduction-in-force.  Indeed, General Ianni's letter of
 February 28, 1979, made specific reference to this area of concern in
 addressing possible discontinuance of the FTM program and stated, " . .
 . those hired under the Title 32 program will be eligible to compete for
 the same positions within the civil service system . . . ." (G.C. Exh.
 8).  Without expressing any opinion as to the scope of permissible
 bargaining, I conclude, merely, that ACT's proposal No. 3 was germane
 and that Respondent's refusal to bargain violated Secs. 16(a)(1) and (5)
 of the Statute.
 
    Proposal No. 4.
 
          "Details.
 
                                  * * * *
 
          "While it is recognized that details of employees to work in
       positions not normally assigned is sometimes necessary, it shall
       not be the policy or practice to detail employees such a manner
       that would discriminate against the employees rights to merit
       promotion, protection under reduction-in-force actions, upward
       mobility, equal employment opportunity and/or labor organization
       membership." (G.C. Exh. 9).
 
 Respondent's response was, "The proposal would preclude the reassignment
 of an active duty person from one position to another;  therefore, since
 active duty personnel are not covered by the Reform Act, this matter is
 considered as a non-negotiable subject." (G.C. Exh. 10).  I do not
 agree.  Although, as noted above, the decision to fill six existing
 vacancies with full time military personnel was a reserved right of
 management, performance of available work by members of the technician
 bargaining unit is clearly germane and a matter on which Respondent was
 required to bargain in good faith.  Accordingly, Respondent's refusal to
 bargain violated Secs. 16(a)(1) and (5) of the Statute.
 
    Proposal No. 5.
 
          "Upward mobility.
 
                                  * * * *
 
          "Career or permanent technicians shall be given first available
       opportunity for positions in the bargaining unit, as per position
       description, to train for future vacancies in the interest of
       upward mobility." (G.C. Exh. 9).
 
 Respondent's response was, "The Reform Act gives management the right to
 determine methods and resources for filling positions and are covered in
 the Delaware National Guard Merit Placement Plan.  The first priority of
 the Merit Placement Plan is to fill positions with fully qualified
 personnel but include provision for consideration of candidates with
 lesser qualifications.  The proposal is considered non-negotiable."
 (G.C. Exh. 10).  I do not agree.  Respondent's decision to fill certain
 vacancies with full time military personnel rather than with civilian
 technicians obviously creates a problem of the respective rights of the
 members of the bargaining unit versus full time military personnel for
 work in the bargaining unit.  Again, without expressing any opinion as
 to the permissible scope of bargaining, I find ACT's proposal germane
 and Respondent's refusal to bargain violated Secs. 16(a)(1) and (5) of
 the Statute.
 
    Proposal No. 6.
 
          "Equal Employment Opportunity.
 
                                  * * * *
 
          "No position in the bargaining unit, as described in the
       position description, shall be in any manner filled that would
       circumvent the E.E.O. rights of any member of the bargaining
       unit." (G.C. Exh. 9).
 
 Respondent's response was, "Title I of the Reform Act addresses
 recruitment resources.  The specific details are covered in the Delaware
 National Guard Merit Placement Plan.  Delaware Chapter ACT, Inc. has had
 exclusive recognition since May 22, 1969 and has not chosen to address
 this issue, if an issue, since that time;  therefore the proposal is
 considered as non-negotiable." (G.C. Exh. 10).  I agree that proposal
 No. 6 was not negotiable but not necessarily for the reasons stated by
 Respondent.  I find, simply, that proposal No. 6 was not germane.  On
 its face, the proposal seeks to "negotiate" the decision of Respondent
 to fill a vacancy which was, and is, a reserved right of management and
 a matter on which Respondent was not obligated to negotiate.  That ACT
 sought to "negotiate" Respondent's decision to fill a particular vacancy
 with a full time military person was firmly shown by the testimony of
 Barbara A. Moore (Tr. 104-108, G.C. Exh. 26).  I am not unsympathetic to
 ACT's objective but it may not negotiate Respondent's decision under the
 guise of impact bargaining.
 
    Proposal No. 7.
 
          "Employee rights.
 
                                  * * * *
 
          "Both the Union and management recognize that law does not
       allow full time military personnel to belong to or otherwise act
       for a labor organization.  The law does, however, recognize that
       civilian technicians of the National Guard have the right, under
       the provisions of the Civil Service Reform Act of 1978 and the
       same extent as most federal employees, to belong or act for a
       recognized labor organization." (G.C. Exh. 9).
 
 Respondent's response was, "This proposal does not deal with impact of
 Full Time Manning per se but is an existing policy of the DOD." (G.C.
 Exh. 10).  I do not agree.  The right of Respondent to fill certain
 vacancies with full time military personnel is conceded;  nevertheless,
 with full recognition that it is DOD policy that civilian technicians
 have the right to form, join, or assist any labor organization, or to
 refrain from any such activity, freely and without fear of penalty or
 reprisal, ACT's proposal was germane.  The fact that Respondent had
 decided to fill certain vacancies with full time military personnel, who
 would not be represented by ACT, was sufficient warrant for negotiation
 of a proposal to insure continued affirmation of the right of
 Respondent's civilian technicians to exercise rights assured by Section
 2 of the Statute.  Respondent's refusal to negotiate violated Secs.
 16(a)(1) and (5) of the Statute.
 
    As noted above, while I have found that ACT's proposals Nos. 3, 4, 5
 and 7 were germane and that Respondent's refusal to bargain concerning
 these proposals constituted a violation of Secs. 16(a)(1) and (5) of the
 Statute, ACT's request to bargain and Respondent's duty to bargain
 thereon was, and is, a duty to bargain in good faith concerning
 appropriate arrangements for employees adversely affected by the
 exercise of Respondent's authority to fill designated vacancies with
 full time military personnel.  Respondent is not required to negotiate
 its decision to fill designated vacancies with full time military
 personnel, which is conceded to be a reserved right of management, nor,
 of course, may ACT delay or impede the exercise of Respondent's decision
 by seeking to bargain on matters not germane to its decision, pursuant
 to Sec. 6(a) of the Statute, i.e., ACT was, and is, entitled to bargain
 as it requested, pursuant to Sec. 6(b)(3) of the Statute, concerning
 appropriate arrangements for employees adversely affected by
 Respondent's exercise of its right to fill designated vacancies with
 full time military personnel.  Within the perimeters of Sec. 6(b)(3),
 ACT was, and is, entitled to negotiate concerning appropriate
 arrangements for employees adversely affected by the FTM program.  /16/
 Inasmuch as Respondent refused to bargain on proposals germane to
 Respondent's decision to fill vacancies with full time military
 personnel, the recommended order will, of course, direct that they do
 so, but without limitation to ACT's proposals Nos. 3, 4, 5, and 7.  That
 is, the order recommended will direct that Respondent bargain in good
 faith on appropriate arrangements for employees adversely affected by
 the FTM program including, but specifically not limited to ACT's prior
 proposals Nos. 3, 4, 5 and 7.  The essence of Respondent's duty was, and
 is, to negotiate arrangements for employees adversely affected by the
 exercise of its authority to adopt the FTM program;  but, because
 Respondent declared all of ACT's proposals to be non-negotiable, no
 bargaining has taken place.  Under the circumstances, it would thwart
 the basic objective of Sec. 6(b)(3) to limit bargaining merely to
 proposals previously made by ACT and only by ordering negotiations,
 within the scope of Sec. 6(b)(3), can full opportunity to bargain
 concerning the impact and implementation of Respondent's exercise of its
 right to adopt the FTM program be achieved.
 
    As bargaining concerning arrangements for employees adversely
 affected will necessarily encompass matters relating to work
 opportunity, job retention rights, etc., any agreement negotiated may
 control, or directly affect, implementation of the FTM program after the
 Fiscal Year 1979 implementation which is the sole matter raised by the
 Complaint.  Nevertheless, the Complaint did not include any allegation
 concerning the Fiscal Year 1980 implementation which was subject to a
 separate notice, separate request to negotiate, and separate
 negotiations and, accordingly, no finding has been made with respect
 thereto.  I have given careful consideration to General Counsel's
 contention that a status quo ante order should be granted and find such
 contention unpersuasive.  First, the Complaint alleges a refusal to
 bargain only as to the Fiscal Year 1979 implementation of the FTM
 program, essentially on March 8, 1979, although the three Air National
 Guard positions were not implemented until April 19, 1970.  Second, the
 right to fill the designated vacancies with full time military personnel
 is conceded to have been a reserved right of management.  Accordingly,
 no justification whatever has been shown that would warrant an order
 requiring that positions filled by full time military be vacated.
 Indeed, as Respondent's right to fill designated vacancies with full
 time military personnel is conceded, the authority for such action would
 be highly questionable under the circumstances, cf., Division of
 Military and Naval Affairs, State of New York, Albany, New York,
 1-CA-16, 1-CA-103 (ALJ, November 24, 1980), although a status quo ante
 remedy may, under appropriate circumstances, be proper.  See, for
 example, San Antonio Air Logistics Center (AFLC), Kelly Air Force Base,
 Texas, 5 FLRA No. 22 (1981);  Department of Health, Education and
 Welfare, Social Security Administration, Southeastern Program Service
 Center, Birmingham, Alabama, Case No. 4-CA-15 (ALJ, January 8, 1980).
 In any event, the unfair labor practice found was the refusal to bargain
 concerning appropriate arrangements for employees adversely affected by
 Respondent's exercise of its right to fill designated vacancies with
 full time military which can be fully and adequately remedied by
 ordering bargaining thereon.  This is not a case where the exercise of
 ACT's right to bargain on impact and implementation is affected by the
 filling of the vacancies.
 
    Having found that Respondent has engaged in, and is engaging in,
 certain conduct in violations of Secs. 16(a)(1) and (5) of the Statute,
 it is recommended that the Authority issue the following:
 
                                   ORDER
 
    Pursuant to Sections 5(g)(3) and 18(a)(7) of the Statute, 5 U.S.C.
 Secs. 7105(g)(3) and 7118(a)(7), and section 2423.29 of the Final Rules
 and Regulations, 5 C.F.R. Chapter XIV, Sec. 2423.29, Federal Register,
 Vol. 45, No. 12, January 17, 1980, the Authority hereby orders that the
 Delaware Army and Air National Guard shall:
 
    1.  Cease and desist from:
 
          (a) Refusing to bargain in good faith with the Association of
       Civilian Technicians, Delaware Chapter, the exclusive
       representative of its civilian technicians, concerning appropriate
       arrangements for employees adversely affected by the exercise of
       Respondent's authority, on or about March 8, 1979, to fill
       designated vacancies with full time military personnel, including
       but not limited to, the Association of Civilian Technician's
       proposals concerning Reduction-in-Force (No. 3), Details (No. 4),
       Upward mobility (No. 5) and Employee Rights (No. 7) submitted on,
       or about, March 6, 1979.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing any employee in the exercise by the
       employee of any right under the Statute by refusing to negotiate
       in good faith an appropriate arrangement for employees adversely
       affected by the exercise of Respondent's authority to implement
       the Full Time Military program.
 
    2.  Take the following affirmative action in order to effectuate the
 purpose and policies of the Statute:
 
          (a) Post at each of its facilities, offices, or stations in the
       State of Delaware copies of the attached notice marked "Appendix"
       on forms to be furnished by the Authority.  Upon receipt of such
       forms, they shall be signed by the Adjutant General and shall be
       posted and maintained by him for 60 consecutive days thereafter in
       conspicuous places, including all bulletin boards and other places
       where notices to civilian technicians and members of the Delaware
       Army and Air National Guard are customarily posted.  The Adjutant
       General shall take reasonable steps to insure that said notices
       are not altered, defaced, or covered by any other material.
 
          (b) Upon request, meet and negotiate in good faith, to the
       extent consonant with law, regulations and the Statute, with the
       Association of Civilian Technicians, Delaware Chapter, the
       exclusive, representative of its civilian technician, or any other
       exclusive representatives, concerning appropriate arrangements for
       employees adversely affected by its exercise of authority under
       Section 7106(a) of the Statute, on or about March 8, 1979, to fill
       certain vacancies with full time military personnel.
 
          (c) Pursuant to Section 2423.30 of the Final Rules and
       Regulations, notify the Regional Director of Region 2, Room 241,
       26 Federal Plaza, New York, New York 10278, in writing, within 30
       days from the date of this Order as to which steps have been taken
       to comply herewith.
 
                                       WILLIAM B. DEVANEY
                                       Administrative Law Judge
 
    Dated:  April 10, 1981
    Washington, D.C.
 
 
 
 
                                 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 refuse to bargain in good faith with the Association of
 Civilian Technicians, Delaware Chapter, the exclusive representative of
 our civilian technicians, concerning appropriate arrangements for
 employees adversely affected by the exercise of our authority, on or
 about March 8, 1979, to fill designated vacancies with full time
 military, including, but not limited to the Association of Civilian
 Technician's proposals concerning Reduction-in-Force (No. 3), Details
 (No. 4), Upward mobility (No. 5) and Employee Rights (No. 7), submitted
 on, or about, March 6, 1979.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce any employee in the exercise of any right assured under the
 Statute by refusing to negotiate in good faith, to the extent consonant
 with law, an appropriate arrangement for employees adversely affected by
 the exercise of our authority to implement the Full Time Military
 program.
 
    WE WILL, upon request, meet and negotiate in good faith, to the
 extent consonant with law, with the Association of Civilian Technician,
 Delaware Chapter, the exclusive representative of our civilian
 technicians, or any other exclusive representative, concerning
 appropriate arrangements for employees adversely affected by the
 exercise of our authority under Section 7106(a) of the Statute, on, or
 about, March 8, 1979, to fill certain vacancies with full time military
 personnel.
                                       Delaware Army and Air National
                                       Guard
 
    Dated:  By:  Adjutant General
 
    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 question concerning this Notice, or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director, Federal Labor Relations Authority, Region 2, whose
 address is:  Room 241, 26 Federal Plaza, New York, New York 10278, and
 whose telephone number is:  (212) 264-4934.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Respondent filed exceptions which were untimely and have not
 been considered.
 
 
    /2/ Section 2423.29(a) now provides, in pertinent part, that "in the
 absence of exceptions filed timely . . . , the findings, conclusions,
 and recommendations in the decision of the . . . Judge shall, without
 precedential significance, become the findings, conclusions, decision
 and order of the Authority and all objections and exceptions thereto
 shall be deemed waived for all purposes."
 
 
    /3/ The Authority finds it unnecessary to deal with the Judge's
 rationale regarding the adequacy of the pre-complaint investigation in
 this case.  At this stage of the proceedings, we are concerned only with
 resolving the merits of the complaint.
 
 
    /4/ American Federation of Government Employees, AFL-CIO, National
 Council of EEO Locals and Equal Employment Opportunity Commission, 10
 FLRA 3 (1982) (Proposal I), enforced sub nom. Equal Employment
 Opportunity Commission v. FLRA, No. 82-2310 (D.C. Cir. Sept. 21, 1984).
 
 
    /5/ Id.
 
 
    /6/ For convenience of reference, Sections of the Statute hereinafter
 are, also, referred to without inclusion or the initial "71" of the
 Statute reference, e.g., Sec. 7116(a)(5), simply as "16(a)(5)".
 
 
    /7/ Respondent's Brief pp. 3 and 4 and Appendix, Exhibits B, C and D
 thereto, show that ACT had filed a separate charge against the Delaware
 Army and Air National Guard, docketed as 3-CA-95 (subsequently,
 23-CA-95), which had alleged that the Delaware Air National Guard on
 February 3, 1979, had implemented a "Full Time Training and
 Administration Test" which violated Sec. 16(a)(1), (2), (5) and (8) of
 the Statute;  that the charge in Case No. 3-CA-95, 23-CA-95 had been
 withdrawn with the approval of the Regional Director on January 19, 1980
 (Res. Exh. D, supra).
 
 
    /8/ As the allegations of the Complaint plainly show, which track the
 like allegations of the charge and amended charge, the only unfair labor
 practice alleged is the refusal to negotiate concerning the impact and
 implementation of the announced test program alleged to have been
 unilaterally implemented on or about March 8, 1979.  The record shows
 that six positions initially were intended to be converted to full time
 military in the Delaware Army National Guard (G.C. Exh. 7) which had
 been reduced to three by the notice of February 28, 1979 (G.C. Exh. 8)
 and the March 8, 1979, implementation designated only three (G.C. Exh.
 11);  and that three positions were intended to be converted to full
 time military in the Delaware Air National Guard (G.C. Exhs. 7, 13) and
 three were implemented (G.C. Exh. 13, attachments March 28 and April 19,
 1979);  that the proposed program applied to Fiscal Year 1979;  and that
 specified positions were identified for conversion during Fiscal Year
 1979.
 
    Although the record shows that on September 27, 1979 (G.C. Exh. 14),
 Respondent advised ACT that:  (a) "F.Y. 80 program implementation will
 involve the reestablishment of the technician hiring freeze on 1 October
 1979 . . . .", and (b) that "all new positions and those positions
 vacated during the freeze will be filled by full time military
 personnel, with few exceptions";  that ACT on October 9, 1979, requested
 bargaining on the impact of the Fiscal Year 1980 program (G.C. Exh. 15);
  that Respondent advised ACT on October 24, 1979, that it intended to
 implement the Fiscal Year 1980 program on November 7, 1979 (G.C. Exh.
 15);  and that a negotiating session was held on October 25, 1979, as to
 which Respondent on October 30, 1979, declared certain of ACT's
 proposals non-negotiable (G.C. Exh. 17), none of these assertions are
 included in the Complaint nor is there any allegation in the Complaint
 that encompasses a failure or refusal to bargain in good faith as to
 Respondent's notice of September 27, 1979, which, although a further
 extension of the full time military program, was materially different in
 scope, content and application than the limited test implemented on, or
 about, March 8, 1979, for Fiscal Year 1979, as to which ACT requested
 bargaining on October 9, 1979, and a negotiating session was held on
 October 25, 1979.  Because the Complaint contains no allegation of any
 unfair labor practice as to the Fiscal Year 1980 implementation, as to
 which, as noted above, there was a wholly separate request for
 bargaining and a bargaining session was held, no unfair labor practice
 may be found with respect thereto.  Department of the Treasury, Bureau
 of Engraving and Printing, 4 FLRA No. 6 (1980).  Necessarily, any remedy
 for any violation found must be limited to the violation, if any, found.
 
 
    /9/ By letter dated July 23, 1980, (Res. Brief, App., Exh. 2)
 Respondent requested that the Regional Director issue subpoenas for the
 attendance of Messrs. Robert Davis, Terry Habron and Joseph P. Hickey at
 the hearing then set for August 19, 1980.  Subsequently, on August 11,
 the hearing was rescheduled for September 4, 1980.  No subpoenas were
 issued, and, of course, no hearing was held on August 19, 1980.  It does
 not appear that subpoen