24:0695(72)CA - Army Adjutant General, Publication Center, St. Louis, MO and AFGE Local 2761 -- 1986 FLRAdec CA



[ v24 p695 ]
24:0695(72)CA
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
       gra