24:0695(72)CA - Army Adjutant General, Publication Center, St. Louis, MO and AFGE Local 2761 -- 1986 FLRAdec CA
[ v24 p695 ]
The decision of the Authority follows:
24 FLRA No. 72 UNITED STATES ARMY ADJUTANT GENERAL PUBLICATION CENTER, ST. LOUIS, MISSOURI Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2761 Charging Party Case No. 7-CA-40547 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached Decision of the Administrative Law Judge. The Judge concluded that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it unilaterally cancelled the annual picnic. The issue before the Authority is whether, in the circumstances of this case, the annual picnic constituted a condition of employment giving rise to an obligation to bargain. II. Background The facts of this case as set out by the Judge are not in dispute and therefore will only be summarized below. The Union is the exclusive representative of employees of the United States Army Adjutant General Publication Center, St. Louis, Missouri (the Center). For at least 18 years picnics have been held for Center employees. Prior to June 1981, the majority of these picnics were held on weekends off the Center's premises. In June 1981 the picnic was held on the Center's premises during working hours to celebrate the Center's 30th anniversary. The picnics of 1982 and 1983 were also held on the Center's premises during working hours. Each of these three picnics followed similar arrangements. The work force reported for duty at the regular time. Those attending the picnic were released from their duties between 10:00 a.m. and 12:00 noon. Dependents, retirees and friends were permitted to attend as guests and to participate in an open house tour of the Center. Various activities occurred during the day, including the serving of food and refreshments, games, tours and movies. Part of the time was also set aside to recognize deserving employees with letters of appreciation, safety pins, and monetary awards. Planning began for the 1984 picnic, which was scheduled for June 29th. Several disagreements arose between the Union and the Center's representatives over the wording of the Newsletter to be distributed to employees announcing the picnic. Specifically, the Union objected to the picnic's proposed format which, among other things, required those not participating to "fulfill their daily 8 hour work obligation or take annual leave." It is undisputed that employees not attending the previous picnics were supposed to be at their work stations. The Union chose to survey employees to see if they wanted to participate given these circumstances. During management discussions of the Union's objections to the changes in format of the picnic, the Center decided to cancel the picnic entirely. This was accomplished without further discussion with the Union, in the daily bulletin notice to employees, dated June 8, 1984. The announcement stated that the picnic was cancelled as a result of discussions with the Civilian Personnel Office concerning administrative leave. A copy of the bulletin was sent to the Union, and the Union made no request to bargain after receipt of the bulletin. III. Judge's Decision The Judge concluded that the Respondent violated section 7116(1)(1) and (5) when it unilaterally cancelled the annual picnic. The Judge found that the annual picnic, having been held for three consecutive years during work hours against a backdrop in which picnics had been held for nearly 20 years, constituted an established past practice. The Judge also found that the annual picnic was, in the circumstances of this case, a condition of employment because it was arranged by management, used by management to award and recognize worthy employees, and authorized by management to be held on duty time. Finally, the Judge found that, based on its impact on employee morale, the cancellation of the picnic had more than a de minimis impact on the bargaining unit employees. In response to the General Counsel's request for a status quo ante remedy, the Judge concluded, in granting the request, that the cancellation "appears to interfere with no statutory management right." The Judge also concluded that it was unnecessary to resolve other issues raised by the parties concerning whether the holding of the picnic and certain of its functions involved violations of Agency regulations. IV. Respondent's Exceptions The Respondent excepted to the Judge's conclusion that the annual picnic held on duty time was a condition of employment. In this connection, the Respondent repeated arguments made to the Judge in which it contended that holding a picnic involved neither an established past practice nor a condition of employment, because, among other reasons, most of the previous picnics were held on weekends outside of the Respondent's grounds and the principal activities engaged in at the picnics involved the consumption of food and alcoholic beverages and participation in games. In the respondent's view, those activities had no direct relationship to the work situation and hence did not involved conditions of employment. Finally, the Respondent excepted to the Judge's recommended Order, contending that reinstituting the practice would interfere with its right to assign work under section 7106(a)(2)(B) of the Statute. Additionally, it argued that the Judge's recommendation would require it to violate Federal Personnel Manual requirements with respect to granting administrative leave. Neither the General Counsel nor the Union filed an opposition to the Respondent's exceptions. V. Analysis We conclude, in agreement with the Respondent and contrary to the Judge, that the annual picnic does not meet the definition of conditions of employment in section 7103(a)(14) of the Statute and hence the Respondent's cancellation of the picnic does not give rise to an obligation to bargain on its part. /1/ There are two basic considerations involved in deciding whether a matter involves a condition of employment: (1) whether the matter proposed to be bargained pertains to bargaining unit employees; and (2) the nature and extent of the effect of the matter proposed to be bargained on working conditions of those employees. Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA No. 23 (1986). As to the second consideration there must be a direct connection between the proposal and the work situation or employment relationship of bargaining unit employees. Applying the Antilles analysis to the matters at issue in this case, it is clear that the first consideration is satisfied. The annual picnic involved all employees of the Respondent including bargaining unit employees. Therefore, its cancellation pertains to bargaining unit employees. However, with respect to the second consideration, we find that the annual picnic principally involved recreational activities and hence had no direct connection to the work situation or employemnt relationship. We cannot agree with the Judge that because the picnic was held during duty hours and awards were given out, a direct connection with the employment relationship was established. Accordingly, the picnic was not a condition of employment, and the cancellation of an annual celebration involving essentially recreational activities does not constitute a change in conditions of employment. /2/ Therefore, it is unnecessary to consider the other issues addressed by the Judge in her Decision. While such matters do not give rise to a statutory obligation to bargain, it is our view that they are matters which the parties should be able to resolve between themselves without resorting to the unfair labor practice process. We urge representatives of agency management and unions to resolve this type of dispute bilaterally without the need to invoke statutory third-party processes. VI. Conclusion Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Authority has reviewed the rulings made by the Judge at the hearing, finds that no prejudicial error was committed, and thus affirms those ruling. We have considered the Judge's Decision, the Respondent's exceptions and the entire record and conclude that the Judge's Decision must be reversed. We therefore conclude that the respondent did not violate section 7116(a)(1) and (5) of the Statute based on its unilateral cancellation of the annual picnic. Accordingly, the complaint shall be dismissed in its entirety. ORDER The complaint in Case No. 7-CA-40547 is dismissed. Issued, Washington, D.C. December 22, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY Member Frazier, concurring in part and dissenting in part. I respectfully dissent from my colleagues on whether the matter in this case involves a condition of employment, I would find that it does. I agree with my colleagues that the facts of this case satisfy the first factor set forth in the Antilles Consolidated Education Association case, 22 FLRA No. 23; that is, that the matter pertains to bargaining unit employees. However, contrary to my colleagues, I would find that the facts also satisfy the second Antilles factor, which concerns the nature and extent of the effect of the matter on working conditions of the employees involved. The agency picnic was not merely a "recreational" activity for employees; it appears to have served a function that directly enhanced the employment relationship between the agency and its employees. Picnics for agency employees had been held for almost 20 years. These picnics took place in a variety of settings, occasionally on agnecy premises or during working hours. For the 3 years immediately preceding the agency's termination of its practice, the agency picnic was held on agency property during working hours. The picnics brought together agency employees and retirees, their families and guests. The agency not only hosted the event and encouraged employees to attend, but also took advantage of the occasion as an opportunity to distribute letters of appreciation, safety pins, and monetary awards. In short, the agency's presence permeated the event, and the employment relationship between the agency and its employees was undeniably and directly enhanced as a result. Furthermore, to find that an agency picnic held on agency premises during working hours falls within the compass of employees' conditions of employment is consistent with precedent. Other types of interruptions in the workday, such as breaks and rest periods during which employees are temporarily relieved from their particular duties but continue to be paid, have been considered conditions of employment. E.g., American Federation of Government Employees, AFL-CIO, Local 3511 and Veterans Administration Hospital, San Antonio, Texas, 12 FLRA 77, 84-88 (1983) (Union Proposal 30). Having initially chosen to establish an annual picnic, and having utilized the picnic to enhance relations between it and its employees, the agency did not thereafter possess unfettered discretion to unilaterally terminate the practice. At the very least, the agency was obligated to inform the Union of its intention to change its past practice pertaining to such conditions of employment and give the Union a reasonable opportunity to request bargaining on proposals related thereto and otherwise consistent with law and regulation. In these circumstances, I would find that the agency committed an unfair labor practice when it unilaterally cancelled the agency's annual picnic, thereby terminating a past practice pertaining to conditions of employment. /s/ Henry B. Frazier III, Member -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 7-Ca-4054-7 UNITED STATES ARMY ADJUTANT GENERAL PUBLICATION CENTER, ST. LOUIS, MISSOURI, Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2761, Charging Party Major Edelbert F. Phillips, Howard S. Bishop, Jr., For the Respondent Daniel Minahan, For the General Counsel Federal Labor Relations Authority Dominic Licavoli For the Charging Party Before: ISABELLE R. CAPPELLO Administrative Law Judge DECISION This is a proceeding under Title VII of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1191, 5 U.S.C. 7101 et seq. (1982), commonly known as the Federal Service Labor-Management Relations Statute, and hereinafter referred to as the Statute, and the rules and regulations issued thereunder and published at 5 CFR 2411 et seq. A charge of an unfair labor practice was filed by the Union on June 11, 1984 and amended on July 10. The General Counsel of the Federal Labor Relations Authority (hereinafter, the "Authority") investigated and, on July 31, served the complaint initiating this proceeding. The complaint alleges that Respondent violated Sections 7116(a)(1) and (5) of the Statute /3/ by unilaterally cancelling the annual picnic, held during working hours. Respondent admits cancelling the picnic without providing prior notice to the Union, or an opportunity to bargain. Respondent denies that its action changed a condition of employment of unit employees, or terminated a past practice, or constituted a violation of the Statute. A hearing on the matter was held on September 17, 1984 in St. Louis, Missouri. The parties appeared, examined witnesses, and adduced documentary evidence. Briefs were filed on November 13 on behalf of the General Counsel and Respondent, pursuant to an order of October 16 extending the briefing time to that date, upon a request of the General Counsel which was subject to no objection. Findings of Fact /4/ 1. The Union is and has been a labor organization within the meaning of Section 7103(a)(4) of the Statute, at all times material herein, and that for this same period the Respondent is and has been an agency within the meaning of Section 7103(a)(3). 2. At all times material herein, the Union has been recognized by Respondent as the exclusive representative of all employees assigned to the U.S. Army Adjutant General Publications Center, St. Louis (AGPC or the Center) with certain exceptions not here applicable. There are approximately 150 bargaining unit employees. 3. At all times material herein, the parties have been bound by a collective bargaining agreement. 4. At all times material herein, Lt. Colonel Joseph York has occupied the position of Commander of AGPC, and Major James K. Pualoa the position of Executive Officer of AGPC; and they are and have been management officials or supervisors within the meaning of Sections 7103(a)(10) and/or (11) of the Statute, and agents of Respondent. 5. The Center's facility consists of a single building on a seven-acre site surrounded by open grass. 6. Picnics have been held for Center employees for at least 18 years. Some were held in parks and, now and then, on the premises of the facility. Some were held during working hours; but most were held on weekends. In June 1981, to celebrate the 30th anniversary of the founding of the Center, the Commander authorized a picnic to be held during working hours, at the Center. Another such picnic was held in 1982 and 1983. 7. The 1981, 1982 and 1983 picnics followed the same arrangements. The work force reported for duty at its regular time, 0600 hours for the biggest percentage. An open house tour for dependents began at 0900 hours. Employees who wished to return home to pick up their dependents were released from duty on or about 1000 hours, with exceptions for those living a great distance from the Center. Opening ceremonies began at approximately 1115 hours. The warehouse area closed its doors at approximately 1200 hours. The front gate closed at 1700 hours. Games and movies were arranged for the participants at the picnic. Guest included retirees as well as dependents and friends of the employees. A tow motor was hooked to three carts and used to transport people around the site. Ceremonies were held to recognize deserving employees. Letters of appreciation, safety pins, and monetary awards for sustained superior performance and suggestions were given out to those employees earning them. Food and beer were served, for which the participants paid. 8. The Union was always consulted about the picnics, by the Center's Executive Officer normally, to find out if it could get some employees to help with the cooking and ticket taking, and to obtain advice as to what games employees would like. The Union paid for its members' tickets. 9. In 1984, plans got underway for the annual June picnic. On May 25, Lt. Colonel York sent the union President a copy of a Picnic Newsletter to be distributed to employees on May 29. The purpose was to obtain necessary information for the "1984 annual picnic" to be held on June 29. G.C. Ex. 23. In his letter to the Union, Lt. Colonel York referred the Union to Major Pualoa, if it had any questions. The union President got together with the stewards and Major Pualoa "due to the fact that there were several changes in the picnic newsletter" (Tr. 41). The "sore points" were the second and third paragraphs of the proposal newsletter which read: All picnickers are to come to work with their families by 8:30 a.m. Dismissal will be at 1:30 p.m. There will be cookies and coffee served at 9:00 a.m. in the cafeteria. We will begin serving lunch at 11:00 a.m. Personnel who choose not to participate in BINGO, VOLLEYBALL, SOFTBALL, TENNIS, CHILDREN'S GAMES nor indulge in BARBEQUE, HOMEMADE DESSERTS, SODA AND BEER, will fulfill their daily 8 hour work obligation or take annual leave. See G.C. Ex. 23. It was undisputed that employees were not required to attend the 1981, 1982, and 1983 picnics but, if they did not, they were supposed to be at their work station. See Tr. 56. 10. The Union surveyed the Center's personnel and its then President "came to the conclusion that no one really wanted to participate in something like this if this -- with this type of -- I should say they were being told that if they didn't participate in this manner that they would have to work the eight hours or take the eight hours annual" (Tr. 42 and see also Tr. 50). By the time the union President had "gotten all the information gathered," he learned that the picnic had been cancelled (Tr. 42). 11. The information-gathering had to do with the signing, on June 7, 1984, of an unfair labor practice, alleging that management made a "unilateral change of past practices of employees' picnic." See G.C. Ex. 1a. Lt. Colonel York got together with his labor-management relations specialists, to deal with the unfair labor practice charge, and was told that the holding of the picnic during duty hours violated regulatory requirements. /5/ He investigated and was satisfied that he could "not grant administrative leave for those type functions" (Tr. 57), that employees could "not drink during duty hours" (Tr. 58), and that he "would be pecuniarily liable for the children and the wives that were taking the -- walking throughout the Center with all this material handling equipment running about" (Tr. 58). Plus this, the Center's workload was very heavy during around the time of the picnic and he had had to bring in "overhire" personnel to help process the backload (Tr. 58). Based on these beliefs, Lt. Colonel York decided to cancel the picnic. Accordingly, he included in the daily bulletin notice to employees, dated June 8, 1984, the announcement that: "As the result of discussions with CPO concerning administrative leave, the Center's picnic on 29 June 84 is cancelled" (G.C. Ex. 24). A copy was sent to the Union. 12. Lt. Colonel York conceded that holding picnics and recreational events can be seen as beneficial to morale at the Center and that at the Center "(w)e try to do that, yes" (Tr. 70). But he added that "most of the time they're after duty hours" (Tr. 70). 13. The Union made no request to bargain after receiving the June 8 bulletin. 14. Retirees and families and friends were "very, very disturbed" about cancellation of the picnic in which they had participated in prior years (Tr 44). The employees were "upset," also, at the cancellation of the picnic (Tr. 51). According to the then union President, the cancellation had a "great impact" on morale at the Center (Tr. 51). Employees felt that they had "been cheated out of a good relationship between management and employees" and missed the participation with then families and friends in coming "aboard to see their working facilities as well as to participate in -- in having a good time together" (Tr. 52). Discussion and Conclusions The General Counsel has established, by a preponderance of the evidence, /6/ that Respondent violated Sections 7116(a)(1) and (5) when it unilaterally cancelled an annual picnic which had been held for the past three years, during working hours. 1. Respondent correctly argues that the duty to bargain, under the Statute, extends only to "conditions of employment." See R. Br. 3-8. But it incorrectly argues that an annual picnic, sponsored by Respondent and held during working hours for the past three years, is not such a condition. While there is no statutory right to an annual employee picnic, the law is settled that any benefit given to employees over an extended period of time with the knowledge and consent of responsible management officials ripens into a condition of employment. United States Department of the Treasury, Internal Revenue Service, Des Moines District, 13 FLRA 296, 307 (1983). Such an established practice may not be cancelled without affording the exclusive representative prior notice and an opportunity to bargain. Admittedly, the Union here had no such notice or opportunity. And, clearly, the annual picnics at the Center were an established practice at the time they were cancelled. They had been held intermittently for nearly 20 years. Starting in 1981, the picnics were held consistently each year for three years; and another picnic was scheduled for 1984. Each picnic since 1981 was held to commemorate the founding of the Center. Each picnic since 1981 has been held during working hours. Responsible management officials were not only aware of the picnic, they actually set the dates; announced the arrangements for each picnic in Center publications; and encouraged employees to attend. Contrary to Respondent's assertion that the annual picnic was a mere "social event" (R. Br. 3, such picnics were used by managment as occasions upon which to award and recognize worthy employees, in the presence of their friends and families. They were used as morale builders. They promoted a good employment relationship which leads, in turn, to a more productive workforce. Several Authority cases under the Statute are cited by Respondent -- all distinguishable in that they concern purely recreational and social opportunities and/or off-duty activities. See R. Br. 4-5 citing National Federation of Federal Employees, Local 1363 and United States Army Garrison, Youngsan, Korea, 12 FLRA 635 (1983) and 12 FLRA 665 (1983), wherein the Authority reviewed the negotiability of union proposals and ruled that the dispensation of alcoholic beverages in membership clubs had "no direct relationship to the work situation and the employment relationship of unit employees" (12 FLRA at 636); American Federation of Government Employees, Local 225, and U.S. Army Armamant, Research and Development Command, Dover, New Jersey, 11 FLRA 630 (1983) wherein the Authority held nonnegotiable a union proposal for access to picnic area and recreational activities on the ground that it "did not concern matters which are 'conditions of employment'" (id. at 631) and nothing in the proposal indicated that picnics or recreation were to be provided during working hours to serve any managerial interests. International Association of Fire Fighters, AFL-CIO, CLC, Local F-116 and Department of the Air Force, Vandenberg Air Force Base, California, 7 FLRA 123 (1981), wherein the Authority ruled as nonnegotiable a union proposal to grant off-duty personnel, and their dependents, the right to hunt and fish on the Base, on the ground that, the union adverted to "no relationship between the recreational activities of off-duty employees and their dependents and employment as firefighters at the Base" (id. at 124). Unlike any of the above cases, this one deals with picnics arranged by management, used by management to award and recognize worthy employees, and authorized by managment to be held on duty time. More apropos are cases cited by the General Counsel. See G.C. Br. 5-7. Thus, in Social Security Administration, Mid-America Service Center, Kansas City, Missouri, 9 FLRA 229, 240 (1982, hereinafter, SSA) it was held that an agency violated the Statute when it unilaterally cancelled an established practice which permitted employees to hold retirement receptions and catered luncheons during authorized luncheon periods. See also Veterans Administration Medical Center, Bath, New York and Veterans Administration, Washington, D.C., 12 FLRA 552, 553 (1983), wherein it was held that the agency violated the Statute when it unilaterally changed the practice of providing a noon meal to physicians on duty. See also United States Army Air Defense Center and Fort Bliss, Fort Bliss, Texas, 12 FLRA 719, 720, 726 (1983), wherein it was held that a practice which allowed firefighters to wash their cars while at work had ripened into a condition of employment. The rationale of these cases appears to be that practices authorized by management during working hours and which boost employee morale, concern or affect their conditions of employment. By the same token, the adverse impact on employee morale caused by the cancellation of the practices is an impact sufficient to trigger the duty to bargain. 2. Respondent argues to the contrary, that cancellation of the annual picnic was a de minimis matter. See R. Br. 8-9. There was undisputed testimony that the employees felt cheated out of a good relationship with management by the cancellation and missed the opportunity to have their families and friends come to the Center to see where they worked. The union President testified that the cancellation had a great impact on employee morale. For one thing, the cancellation denied those receiving awards the pride in having their families and friends witness recognition of their achievements, as workers at the Center. Under the circumstances, the cancellation of the picnic had more than a de minimis impact on the unit employees. Respondent states that the unit employees were not interested in attending the picnic. See R. Br. 8 and finding 10, above. In fact, the employees resented the unilateral changes which management had made in past practices concerning the picnic, including the fact that they would not be able to drive home to pick up their families, but would have to bring them to work with them. Most employees start work at 6:00 a.m., making it very difficult for them to assemble their families at such an early hour. 3. Respondent argues that there was no established past practice of holding picnics on duty time at the Center, and that three years is too short a period in which to establish such a practice. See R. Br. 7-8. This argument is rejected. The most recent picnics were held against a backdrop of picnics which occurred both during and after working hours for at least 18 years. Second, an annual picnic by definition occurs only once a year. Three annual picnics mean that the practice prevailed for three years, not an insignificant period of time. See Department of Defense Dependents Schools, 12 FLRA 43 wherein the Authority ruled that an agency could not unilaterally terminate a practice by which a union official had attended four annual labor relations conferences. The practice here was instigated by Respondent who, in 1984, referred to it as the "1984 annual picnic." See finding 9, above. The practice continued long enough that both employees and managment considered it to be an annual event. In the one case cited by Respondent, Department of the Navy, Naval Underwater Systems Center, Newport Naval Base, 3 FLRA 413, 414, 419, 420 (1980), the Authority found a past practice of 16 months duration could not be unilaterally changed. 4. As a remedy, the General Counsel seeks a cease-and-desist order, a bargaining order, and an order to post an appropriate notice to employees. These are all proper, under the circumstances of this case, and will be recommended. The General Counsel also seeks an order to restore the practice of holding the June picnics, pending negotiations with the Union. See G.C. Br. 12. The General Counsel points out that restoration of the status quo ante is appropriate when an agency has failed to meet its duty to bargain over the substance of a decision, "in order to avoid rendering meaningless the mutual obligation under the Statute to negotiate concerning changes in conditions of employment." U.S. Customs Service, Region V, New Orleans, Louisiana, 9 FLRA 116, 119 (1982). See also, Department of the Health and Human Services, Social Security Administration, Baltimore, Maryland, 16 FLRA 674, 675 (1984). Cancellation of the annual picnic, held during duty hours to honor employees, to celebrate the founding of the Center, and to promote morale appears to interfere with no statutory management right. See Section 7106 of the Statute. /7/ See also the SSA case, 9 FLRA at 230 and 241 where the Authority required the agency to rescind and revoke a guide by which it had unilaterally changed established past practices with regard to retirement receiptions, etc., even though the agency argued that "a critical work exigency existed" which justified the unilateral cancellation. Compare the Center's reliance, here, on a "very heavy" workload at the time of the unilateral cancellation (R. Br. 9). Accordingly, I will recommend an order that the status quo ante be restored. In view of the above conclusions and discussion, resolution of other issues raised by the parties is unnecessary including the argument of the General Counsel concerning applicable administration regulations. The Center does not appear to be asserting that holding the picnics violated regulations, only that Lt. Colonel York "reasonably believed" that they did. See R. Br. 11 and footnote 3 above. Ultimate Findings and Recommended Order Respondent has violated and is violating Sections 7116 (a)(1) and (5) by unilaterally cancelling the annual picnic, as alleged in the complaint. Accordingly, and pursuant to 5 CFR 2423.29 and Section 7118 of the Statute, the Authority hereby ORDERS that the United States Army Adjutant General, Publication Center, St. Louis, Missouri, shall: 1. Cease and desist from: (a) Changing conditions of employment of bargaining unit employees by terminating the practice of annually observing, during working hours, the picnic of the U.S. Army Adjutant General, Publications Center, St. Louis, Missouri, without first notifying the American Federation of Government Employees, AFL-CIO, Local 2761, the exclusive representative of unit employees, and affording it the opportunity, upon request, to bargain over such a change. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Upon request of the American Federation of Government Employees, AFL-CIO, Local 2761, reainstate the practice of annually observing, during working hours, a picnic. (b) Post at the Center's facilities copies of the attached notice to employees, on forms to be furnished by the Regional Director, Region VII, Federal Labor Relations Aurhority. Upon receipt of such forms, they shall be signed by the Commander of the Center and shall be posted and maintained by him for sixty (60) consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. The Commander shall take all reasonable steps to insure that such notices are not altered, defaced, or covered by other material. (c) Pursuant to 5 CFR 2423.30, notify the Regional Director, in writing, within 30 days from the date of this order, as to what steps have been taken to comply herewith. /s/ ISABELLE R. CAPPELLO Administrative Law Judge Dated: March 28, 1985 Washington, DC --------------- FOOTNOTES$ --------------- (1) Member Frazier's separate opinion is set forth, infra. (2) Compare Department of the Army, Fort Greely, Alaska, et al., 23 FLRA No. 105 (1986), wherein a direct connection was established between the granting of exchange privileges to employees and the work situation because the privileges were used as an incentive to working in an isolated location, and Department of the Army, Dugway Proving Ground, Dugway, Utah, 23 FLRA No. 80 (1986), wherein a connection was established between the providing of housing to employees and financial and recruiting benefits as well as hours of work involved. (3) Section 7116 provides, in pertinent part that: (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency -- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; (or) . . . (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter. . . . (4) Abbreviations to be used herein are as follows. "Tr." refers to the transcript. Corrections to it are attached to this decision and are made pursuant to 5 CFR 2423.19(r). "G.C. Ex." refers to the exhibits of the General Counsel and "R. Ex." to those of Respondent. "G.C. Br." refers to the brief of the General Counsel and "R. Br." to that Respondent. (5) The regulations relied upon are those in the Federal Personnel Mannual. See G.C. Br. 4, page 2, concerning excused absence and stating, under S11-5 Administrative Discretion, that: Absences from regularly assigned duties in connection with the activities outlined below are considered constructive duty time; that is, activity commanders are authorized to excuse any employee without charge to leave or loss of pay to the extent indicated in each case. Picnics are not included among the activities outlined in the regulation. On March 11, 1985, the Authority ruled that S11-5 does not limit administrative leave to only those situations enumerated in the Manual. See American Federation of Government Employees, AFL-CIO, National Council of Field Labor Locals, 17 FLRA No. 24 (1985). (6) This is the statutory burden of proof. See 5 U.S.C. 7118(a)(7) and (8). (7) 7106. Management rights. (a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency -- (1) to determine the mission, budget, organization, number of employees, and internal security practices of the agency; and (2) in accordance with applicable laws -- (a) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees; . . . (B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted. (C) with respect to filling positions, to make selections for appointments from -- (i) among properly ranked and certified candidates for promotion; or (ii) any other appropriate source; and (D) to take whatever actions may be necessary to carry out the agency mission during emergencies. (b) Nothing in this section shall preclude any agency and any labor organization from negotiating -- . . . (1) at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work; (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 by such management officials. 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 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT change conditions of employment of bargaining unit employees by terminating the practice of annually observing, during working hours, the picnic of the U.S. Army Adjutant General Publication Center, St. Louis, Missouri, without first notifying the American Federation of Government Employees, AFL-CIO, Local 2761, the exclusive representative of our unit employees, and affording it the opportunity, upon request to bargain over such a change. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce any employee in the exercise of rights assured by the Federal Service Labor-Management Relations Statute. WE WILL, upon request of the American Federation of Government Employees, AFL-CIO, Local 2761, reinstate the past practice of annually observing, during working hours, the picnic of the U.S. Army Adjutant General, Publication Center, St. Louis, Missouri. . . . (Agency or Activity) Dated: . . . By: . . . (Signature) This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region VII, whose address is: 1531 Stout Street, Suite 301, Denver, Colorado 80202, and whose telephone number is: (303) 844-5224; FTS 564-5224.