[ v01 p445 ]
01:0445(54)CA
The decision of the Authority follows:
1 FLRA No. 54
ILLINOIS AIR NATIONAL GUARD,
182ND TACTICAL AIR SUPPORT GROUP,
SPRINGFIELD, ILLINOIS
Respondent
and
ILLINOIS AIR CHAPTER, ASSOCIATION
OF CIVILIAN TECHNICIANS, INC. (ACT)
Complainant
Assistant Secretary
Case No. 50-17054(CA)
DECISION AND ORDER
ON JANUARY 30, 1979, ADMINISTRATIVE LAW JUDGE RHEA M. BURROW ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT
BE DISMISSED IN ITS ENTIRETY. THE COMPLAINANT FILED EXCEPTIONS WITH
RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
ORDER.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
REGULATIONS (44 F.R. 7). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE
SUBJECT CASE, INCLUDING THE EXCEPTIONS FILED BY THE COMPLAINANT, THE
FEDERAL LABOR RELATIONS AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS, /1/ AND RECOMMENDATION. /2/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 50-17054(CA) BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., JUNE 11, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPEARANCES:
MAJOR DONALD R. BEEDLE
LABOR RELATIONS SPECIALIST
MILITARY DEPARTMENT OF ILLINOIS
1301 NORTH MCARTHUR BOULEVARD
CAMP LINCOLN
SPRINGFIELD, ILLINOIS 62702
FOR THE RESPONDENT
THOMAS J. OWSINSKI
NATIONAL FIELD REPRESENTATIVE
ASSOCIATION OF CIVILIAN TECHNICIANS
RD-4, BOX 4128
POTTSVILLE, PENNSYLVANIA 17901
FOR THE COMPLAINANT
BEFORE: RHEA M. BURROW
ADMINISTRATIVE LAW JUDGE
CASE NO. 50-17054(CA)
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
THIS IS AN UNFAIR LABOR PRACTICE PROCEEDING IN WHICH A FORMAL HEARING
OF RECORD WAS HELD ON NOVEMBER 14, 1978 IN SPRINGFIELD, ILLINOIS
PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED, (HEREINAFTER REFERRED TO
AS THE ORDER).
ON OR ABOUT MAY 14, 1976 A NEGOTIATED AGREEMENT WAS REACHED BETWEEN
THE ADJUTANT GENERAL OF ILLINOIS AND ILLINOIS AIR CHAPTER, ASSOCIATION
OF CIVILIAN TECHNICIANS, INCORPORATED. THE AGREEMENT PROVIDED: "THIS
AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT FOR TWO (2) YEARS FROM
THE DATE APPROVED BY THE NATIONAL GUARD BUREAU. ON WRITTEN REQUEST OF
EITHER PARTY TO THE OTHER, THE PARTIES SHALL MEET TO COMMENCE
NEGOTIATIONS OR A NEW AGREEMENT NOT LATER THAN THE SIXTIETH DAY NOR
EARLIER THAN THE NINETIETH DAY PRIOR TO THE EXPIRATION DATE OF THIS
AGREEMENT.
IN A COMPLAINT FILED ON JULY 17, 1978, THE RESPONDENT WAS CHARGED
WITH HAVING VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER ON MAY 12,
1978 AT ITS ILLINOIS AIR NATIONAL GUARD, 182ND AIR GROUP STATION LOCATED
AT THE GREATER PEORIA AIRPORT, PEORIA, ILLINOIS. IN A LETTER ON BEHALF
OF THE AIR COMMANDER DATED MAY 12, 1978 AND ADDRESSED TO AFFECTED
TECHNICIANS AND SUPERVISORS, THE RESPONDENT DIRECTED THAT: "EFFECTIVE
MONDAY, 15 MAY 1978 SEASONAL MILITARY CLOTHING, SUCH AS PARKAS AND
CWU-7P JACKETS, WILL NOT BE WORN WITH THE CIVILIAN UNIFORM." PURSUANT TO
A REQUEST BY COMPLAINANT THE RESPONDENT IN A LETTER DATED JUNE 16, 1978
ADDRESSED TO AFFECTED TECHNICIANS AND SUPERVISORS, RESCINDED THE MAY 12,
1978 LETTER OR DIRECTIVE STATING: "1. 182ND TAS GP/ACR LTR, 12 MAY
1978, SUBJECT AS ABOVE, /3/ IS HEREBY RESCINDED. 2. ALL SUPERVISORS
WILL INSURE TECHNICIANS UNDER THEIR SUPERVISION WHO ARE AUTHORIZED TO
WEAR THE STANDARD CIVILIAN WORK ATTIRE ARE MADE AWARE OF THE RECISION OF
THE ABOVE MENTIONED LETTER." THE RESPONSE APPARENTLY FAILED TO SATISFY
THE COMPLAINANT AND THE UNFAIR LABOR PRACTICE COMPLAINT WAS FILED. THE
ISSUE RAISED IS, IN EFFECT, WHETHER THE RESPONDENT'S UNILATERAL ACTION
IN CHANGING EMPLOYEE WORKING CONDITIONS AT THE PEORIA, ILLINOIS
INSTALLATION CONCERNING THE PROHIBITION OF WEARING SEASONAL MILITARY
CLOTHING WITH THE CIVILIAN UNIFORM CONSTITUTED A VIOLATION OF SECTION
19(A)(1) AND (6) OF THE ORDER.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING THE EVIDENCE ADDUCED,
THE BRIEFS SUBMITTED BY THE PARTIES AND MY OBSERVATION OF THE WITNESSES
AND EVALUATION OF THEIR CREDULITY, I MAKE THE FOLLOWING FINDINGS,
CONCLUSIONS AND RECOMMENDATION.
FINDINGS OF FACT
1. THE COMPLAINANT IS, AND WAS, AT ALL TIMES MATERIAL HEREIN THE
EXCLUSIVE BARGAINING REPRESENTATIVE FOR ALL OF THE RESPONDENT'S
NON-SUPERVISORY AND NON-MANAGERIAL EMPLOYEES FROM MAY 14, 1976 TO MAY
15, 1978. SINCE MAY 14, 1978, THE RESPONDENT IS RECOGNIZING COMPLAINANT
AS THE EXCLUSIVE REPRESENTATIVE OF AFORESAID EMPLOYEES AND HONORING THE
COMMITMENTS IN THE AGREEMENT WHICH EXPIRED ON MAY 14, 1978 EXCEPT
INSOFAR AS WEARING OF SEASONAL MILITARY CLOTHING MAY HAVE BEEN
PROSCRIBED FOR THE BRIEF PERIOD FROM MAY 15 TO JUNE 16, 1978.
2. THE COLLECTIVE BARGAINING AGREEMENT PROMULGATED MAY 14, 1976 TO
CONTINUE IN FULL FORCE AND EFFECT FOR TWO YEARS CONTAINED PROVISIONS IN
ARTICLE VII STATING:
"SECTION 1. THE EMPLOYER IS RESPONSIBLE FOR PROVIDING AND
MAINTAINING SAFE AND HEALTHY
WORKING CONDITIONS AND FOR PROVIDING REQUIRED PROTECTIVE EQUIPMENT."
"SECTION 2. KNOWN SAFETY RULES, PUBLISHED IN APPROPRIATE AIR FORCE
PUBLICATIONS, COVERING
SUCH ITEMS AS CHILL FACTOR, PROTECTIVE CLOTHING AND SAFETY DEVICES,
SHALL STRICTLY BE ADHERED
TO."
"SECTION 7. EMPLOYEES ARE RESPONSIBLE FOR OBSERVING ALL PERTINENT
SAFETY REGULATIONS AND
FOR UTILIZING ALL SAFETY EQUIPMENT PROVIDED."
ARTICLE I OF THE AGREEMENT PROVIDED THAT THE EMPLOYER AND THE UNION
AGREE SUBJECT TO THE FOLLOWING: "SECTION 1. IN THE ADMINISTRATION OF
ALL MATTERS COVERED BY THE AGREEMENT, OFFICIALS AND EMPLOYEES ARE
GOVERNED BY EXISTING AND FUTURE LAWS AND THE REGULATIONS OF APPROPRIATE
AUTHORITIES, INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL
MANUALS BY PUBLISHED AGENCY POLICIES AND REGULATIONS IN EXISTENCE AT THE
TIME THE AGREEMENT WAS APPROVED AND BY SUBSEQUENTLY PUBLISHED AGENCY
POLICIES AND REGULATIONS REQUIRED BY LAW OR BY THE REGULATIONS OF
APPROPRIATE AUTHORITIES, OR AUTHORIZED BY THE TERMS OF A CONTROLLING
AGREEMENT AT A HIGHER AGENCY LEVEL." MANAGEMENT RIGHTS OUTLINED IN
SECTION 12(B) OF THE ORDER AS WELL AS THE PROVISIONS OF SECTION 12(C)
WERE INCORPORATED IN THE AGREEMENT.
ARTICLE XVIII, SECTION 1(B) OF THE AGREEMENT PROVIDES IN PART:
"THERE WILL BE NO MIXTURE OF MILITARY CLOTHING AUTHORIZED IN CONJUNCTION
WITH CIVILIAN ATTIRE."
BEGINNING ABOUT MID-MARCH 1978 /4/ THE PARTIES COMMENCED THEIR
NEGOTIATIONS ON A NEW COLLECTIVE BARGAINING AGREEMENT. ONE OF THE ITEMS
DISCUSSED WAS THE WEARING OF SEASONAL MILITARY CLOTHING.
3. WHEN IT BECAME APPARENT THAT A NEW AGREEMENT COULD NOT BE REACHED
BEFORE EXPIRATION OF THE CONTRACT ON MAY 14, 1978 A MEETING WAS
SCHEDULED AND HELD BY THE RESPONDENT WITH THE COMPLAINANT ON MAY 12,
1978.
4. AT THE AFORESAID MAY 12, 1978 MEETING THE RESPONDENT ANNOUNCED
ITS INTENTION TO HONOR ITS OBLIGATIONS TO MEET AND CONFER ON PERSONNEL
POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS AFTER
EXPIRATION OF THE CURRENT BARGAINING AGREEMENT BUT MAINTAINED THAT
INSOFAR AS WEARING OF SEASONAL MILITARY CLOTHING WITH CIVILIAN ATTIRE
WAS CONCERNED NEGOTIATIONS ON THIS SPECIFIC PROGRAM WOULD NOT BE
APPROPRIATE UNDER CURRENT DEPARTMENT OF THE AIR FORCE REGULATIONS. ON
THE SAME DAY THE FOLLOWING PUBLICATION WAS ISSUED:
"SUBJECT TO WEAR OF SEASONAL MILITARY CLOTHING AFFECTED TECHNICIANS
AND
SUPERVISORS. EFFECTIVE MONDAY, 15 MAY 1978 SEASONAL MILITARY
CLOTHING, SUCH AS PARKAS AND
CWU-7P JACKETS, WILL NOT BE WORN WITH THE CIVILIAN UNIFORM."
5. THE COMPLAINANT LATER IN MAY 1978 REQUESTED A MEETING TO DISCUSS
IN MORE DETAIL CERTAIN PROVISIONS OF AIR FORCE MANUAL 67-1 RELATING TO
THE NON-MIXING OF THE CIVILIAN WORK ATTIRE WITH THE MILITARY UNIFORM.
/5/ THE MEETING WAS SCHEDULED AND HELD ON MAY 19, 1979 AT WHICH TIME
COMPLAINANT ASKED THE RESPONDENT AIR COMMANDER TO RESCIND THE MAY 12,
1978 LETTER. THE MAY 12, 1978 LETTER, PURSUANT TO REQUEST WAS RESCINDED
ON JUNE 16, 1978. THE LETTER ENTITLED "WEAR OF SEASONAL MILITARY
CLOTHING" WAS ADDRESSED TO AFFECTED TECHNICIANS AND SUPERVISORS AND
STATED:
"1. 182 TAS GP 1 ACR LTR, 12 MAY 1978, SUBJECT AS ABOVE, IS HEREBY
RESCINDED."
"2. ALL SUPERVISORS WILL INSURE TECHNICIANS UNDER THEIR SUPERVISION
WHO ARE AUTHORIZED TO
WEAR THE STANDARD CIVILIAN WORK ATTIRE ARE MADE AWARE OF THE RECISION
OF THE ABOVE MENTIONED
LETTER."
6. THE PERIOD FOR WEARING SEASONAL MILITARY CLOTHING SUCH AS PARKAS
AND CWU-7P JACKETS WAS OVER IN PEORIA, ILLINOIS AT THE TIME OF THE MAY
12, 1978 LETTER. THE RECORD DOES NOT ESTABLISH THAT THERE WAS A REQUEST
BY ANY AFFECTED EMPLOYEE FOR ISSUANCE OF SUCH EQUIPMENT AFTER MAY 12 OR
BEFORE JUNE 16, 1978 WHEN THE MAY 12 LETTER WAS RESCINDED.
7. THE DOCUMENTARY EXHIBITS INCLUDING THE NEGOTIATED AGREEMENT; AFM
67-1 VOL. IV, PART ONE, 20 MAR. 78 (AMENDMENT 24) AND AFR 127-101; /6/
TOGETHER WITH EXHIBITS 1, 2 AND 3 BY THE RESPONDENT WHEN COUPLED WITH
THE TESTIMONY OF COLONEL KENNETH PETERSON, MAJOR KEITH D. COLGAN, MAJOR
MICHAEL J. MEEHAN PRESENT PERSUASIVE EVIDENCE OF CHANGE OR CLARIFICATION
OF POLICY AND REGULATIONS AS TO WEARING OF SEASONAL MILITARY CLOTHING
SUCH AS THE PARKA AND CWU-7P JACKET AND SUCH AS TO AFFECT NATIONAL GUARD
PERSONNEL, /7/ AND CIVILIAN EMPLOYEES IN THE PEORIA, ILLINOIS AREA AND
ELSEWHERE.
8. THE UNREFUTED TESTIMONY OF MAJOR MICHAEL J. MEEHAN WAS THAT HE
WAS THE RESPONDENT'S CHIEF NEGOTIATOR FOR CURRENT NEGOTIATIONS FOR THE
NEW CONTRACT ON THE BASE AND THE INTERMIX OR ALLOWANCE OF THE WEARING OF
CLIMATIC TYPE ATTIRE OR SEASONAL MILITARY CLOTHING SUCH AS PARKAS AND
CWU-7P JACKETS HAD BEEN BROUGHT UP SEVERAL TIMES FOR DISCUSSION AT THE
BARGAINING TABLE BETWEEN MID-MARCH 1978 AND MAY 12, 1978 AND SUBSEQUENT
TO JUNE 16, 1978. THE COMPLAINANT BY REASON OF NOTICE GIVEN TO ITS
REPRESENTATIVES AT THE BARGAINING SESSIONS ON A NEW AGREEMENT WERE AWARE
OF THE RESPONDENT'S POSITION AS TO ISSUANCE AND WEARING OF SEASONAL
MILITARY EQUIPMENT INCLUDING PARKAS AND CWU-7P JACKETS FOR A FEW MONTHS
BEFORE THE NOTICE ISSUED IN THE MAY 12, 1978 LETTER.
9. FINAL RESOLUTION OF NEGOTIATIONS AS TO WEARING OF SEASONAL
MILITARY WITH CIVILIAN ATTIRE HAS NOT BEEN RESOLVED BY THE PARTIES AND
IMPASSE ASSISTANCE HAS BEEN REQUESTED ON THIS AND OTHER ISSUES.
DISCUSSION AND CONCLUSIONS
THE COMPLAINANT IN ITS BRIEF STATES THAT THE RESPONDENT . . .
"UNILATERALLY AND WITHOUT REASONABLE NOTIFICATION, CHANGED TERMS AND
CONDITIONS OF EMPLOYMENT IN A MANNER INTENDED TO INFLICT DRAMATIC AS
WELL AS CONSEQUENTIAL CHANGES NOT ONLY UPON THE BARGAINING UNIT
NEGOTIATIONS, BUT ALSO THE GENERAL MEMBERSHIP. THIS WAS ACCOMPLISHED BY
THE ISSUANCE OF A BASE POLICY LETTER ON MAY 12, 1978, INDICATING TO ALL
PERSONNEL THAT CERTAIN PROTECTIVE SEASONAL CLOTHING ISSUED THROUGH THE
RESPONDENT'S SUPPLY CHANNELS, IN THE FUTURE, WOULD NOT BE WORN WITH THE
EMPLOYEE'S NEGOTIATED CIVILIAN ATTIRE." THIS WAS ALLEGED TO CONSTITUTE A
VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER.
THE RESPONDENT URGES THAT COMPLAINANT HAS NEVER PRESENTED A
REASONABLE BASIS FOR ITS COMPLAINT AND IT SHOULD BE DISMISSED; AND,
THAT THE ACTIONS TAKEN BY THE EMPLOYER (RESPONDENT) WERE REASONABLE AND
PROPER AND NOT IN VIOLATION OF SECTIONS 19(A)(1) AND (6) OF THE ORDER.
IN THE SUMMARY TO ITS BRIEF IT STATED:
"A. AGENCY REGULATIONS WERE HELD INOPERATIVE UNTIL CONTRACT
EXPIRATION, THE TIME WHEN THEY
SHOULD BECOME EFFECTIVE."
"B. THE UNION WAS WELL AWARE OF THESE NEW REGULATIONS BY EXPOSURE
DURING NEGOTIATIONS AND
AS NORMAL DUTY REQUIREMENTS . . . . "
"C. THERE WAS ABSOLUTELY NO INTERRUPTION IN BARGAINING OR THE
SUBJECT OF 'SEASONAL
MILITARY CLOTHING'."
"D. THE EMPLOYERS RETURN TO 'STATUS QUO' AS REQUESTED BY THE UNION
SHOULD RENDER
ABSOLUTELY 'MOOT' ANY CONSIDERATION OF FINDING OF A VIOLATION."
"E. THE UNION IN NEGOTIATIONS ON 13 AND 14 SEPTEMBER 1978 CONCEDED
AND AGREED AS FOLLOWS:
MILITARY GARMENTS SHALL NOT BE MIXED WITH CIVILIAN CLOTHING. FOR
WEATHER CALLING FOR THE
WEAR OF PARKAS, EMPLOYEES IN CIVILIAN ATTIRE MAY WEAR ANY PARKA OR
APPROPRIATE CLIMATIC
PROTECTIVE GARMENT OF THEIR CHOICE." /8/
"INDEED, THE COMPLAINANT HAS NEVER SHOWN HOW THE EMPLOYER REFUSED TO
CONSULT, CONFER, OR NEGOTIATE WITH A LABOR ORGANIZATION AS REQUIRED BY
THE EXECUTIVE ORDER NOR HAVE THEY SHOWN HOW THE EMPLOYER INTERFERED
WITH, RESTRAINED, OR COERCED ANY EMPLOYEE IN THE EXERCISE OF RIGHTS
ASSURED BY THE ORDER.
SECTION 19(A) OF THE ORDER PROVIDES IN PERTINENT PART:
SECTION 19. UNFAIR LABOR PRACTICES. (A) AGENCY MANAGEMENT SHALL
NOT-- (1) INTERFERE WITH,
RESTRAIN OR COERCE AN EMPLOYEE IN THE EXERCISE OF THE RIGHTS ASSURED
BY THIS ORDER;
* * * *
(6) REFUSE TO CONSULT, CONFER, OR NEGOTIATE WITH A LABOR ORGANIZATION
AS REQUIRED BY THIS
ORDER.
SECTION 11 OF THE ORDER RELATES TO NEGOTIATION OF AGREEMENTS AND
PROVIDES IN PART THAT (A) AN AGENCY AND A LABOR ORGANIZATION THAT HAS
BEEN ACCORDED EXCLUSIVE RECOGNITION, THROUGH APPROPRIATE
REPRESENTATIVES, SHALL MEET AT REASONABLE TIMES AND CONFER IN GOOD FAITH
WITH RESPECT TO PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING
WORKING CONDITIONS, SO FAR AS MAY BE APPROPRIATE UNDER APPLICABLE LAWS
AND REGULATIONS, INCLUDING POLICIES SET FORTH IN FEDERAL PERSONNEL
MANUAL; PUBLISHED AGENCY POLICIES AND REGULATIONS FOR WHICH A
COMPELLING NEED EXISTS UNDER CRITERIA ESTABLISHED BY THE FEDERAL LABOR
RELATIONS COUNCIL AND WHICH ARE ISSUED AT THE AGENCY HEADQUARTERS LEVEL
OF A PRIMARY NATIONAL SUBDIVISION; A NATIONAL OR OTHER CONTROLLING
AGREEMENT AT A HIGHER LEVEL IN THE AGENCY; AND THIS ORDER.
SECTION 12(A) OF THE ORDER PROVIDES THAT IN THE ADMINISTRATION OF ALL
MATTERS COVERED BY THE AGREEMENT, OFFICIALS AND EMPLOYEES ARE GOVERNED
BY EXISTING OR FUTURE LAWS AND THE REGULATIONS OF APPROPRIATE
AUTHORITIES, INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL
MANUAL; BY PUBLISHED AGENCY POLICIES AND REGULATIONS IN EXISTENCE AT
THE TIME OF THE AGREEMENT WAS APPROVED; AND BY SUBSEQUENTLY PUBLISHED
AGENCY POLICIES AND REGULATIONS REQUIRED BY LAW OR BY THE REGULATIONS OF
APPROPRIATE AUTHORITIES, OR AUTHORIZED BY THE TERMS OF A CONTROLLING
AGREEMENT AT A HIGHER AGENCY LEVEL.
THE FEDERAL LABOR RELATIONS COUNCIL RECENTLY CONSOLIDATED AND
CONSIDERED TWO SEPARATE DECISIONS OF THE ASSISTANT SECRETARY INVOLVING
UNFAIR LABOR PRACTICE COMPLAINTS FILED BY (1) THE NATIONAL TREASURY
EMPLOYEES UNION ON BEHALF OF ITSELF AND CERTAIN OF ITS CHAPTERS, A/SLMR
NO. 806, FLRC NO. 77A-40, AND BY THE INTERNAL REVENUE SERVICE (THE
AGENCY) AND CERTAIN OF ITS ACTIVITIES, A/SLMR NO. 859 AND FLRC NO.
77A-92, EACH ALLEGING VIOLATIONS OF SECTION 19(A)(1) AND (6) OF THE
ORDER.
IN ITS OPINION THE COUNCIL FULLY CONSIDERED THE MATTER AND SUMMARIZED
THE PRINCIPLES DISCUSSED THEREIN AS FOLLOWS:
UPON THE EXPIRATION OF A NEGOTIATED AGREEMENT, EXISTING PERSONNEL
POLICIES AND PRACTICES
AND MATTERS AFFECTING WORKING CONDITIONS, WHETHER OR NOT THEY ARE
INCLUDED IN A NEGOTIATED
AGREEMENT, CONTINUE AS ESTABLISHED ABSENT AN EXPRESSED AGREEMENT BY
THE PARTIES THAT SUCH
PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING
CONDITIONS TERMINATE UPON
EXPIRATION OF THAT AGREEMENT OR UNLESS OTHERWISE MODIFIED IN A MANNER
CONSISTENT WITH THE
ORDER.
HOWEVER, AGENCY MANAGEMENT RETAINS THE RIGHT UPON EXPIRATION OF A
NEGOTIATED AGREEMENT TO
UNILATERALLY CHANGE PROVISIONS CONTAINED THEREIN RELATING TO
"PERMISSIVE" SUBJECTS OF
BARGAINING, I.E., THOSE MATTERS WHICH ARE EXCEPTED FROM THE
OBLIGATION TO NEGOTIATE BY SECTION
11(B) OF THE ORDER, AND EITHER PARTY MAY CHANGE MATTERS WHICH ARE
OUTSIDE THE SCOPE OF SUCH
OBLIGATION UNDER SECTION 11(A) OF THE ORDER.
SIMILARLY, THOSE AGENCY REGULATIONS ISSUED DURING THE TERM OF A
NEGOTIATED AGREEMENT WHICH
WERE NOT OPERATIVE WITH RESPECT TO THE BARGAINING UNIT DURING SUCH
TERM BECOME EFFECTIVE, AS
MANDATED BY SECTION 12(A) OF THE ORDER, UPON THE EXPIRATION OF THAT
AGREEMENT.
ALSO, WHERE (AS HERE) THE PARTIES ARE RENEGOTIATING A COMPREHENSIVE
COLLECTING BARGAINING
AGREEMENT AND REACH IMPASSE, A PARTY MAY NOT EFFECT CHANGES IN
OTHERWISE NEGOTIABLE PERSONNEL
POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS
WITHOUT FIRST PROVIDING THE
OTHER PARTY WITH SUFFICIENT NOTICE OF ITS INTENT TO IMPLEMENT THE
CHANGES (WHICH CHANGES
CANNOT EXCEED THE SCOPE OF THE PROPOSALS ADVANCED DURING PRIOR
NEGOTIATIONS BY THE PARTY
SEEKING TO IMPLEMENT THE CHANGES) SO THAT THE OTHER PARTY IS AFFORDED
A REASONABLE OPPORTUNITY
UNDER THE CIRCUMSTANCES TO INVOKE THE PROCESSES OF THE PANEL. IF THE
PANEL'S PROCESSES ARE
NOT INVOKED WITHIN A REASONABLE TIME OF SUCH NOTIFICATION, THE
PARTIES SEEKING TO IMPLEMENT
THE CHANGES MAY EFFECT THOSE CHANGES. HOWEVER, ONCE THE PANEL'S
PROCESSES ARE INVOLVED WITHIN
A REASONABLE TIME OF SUCH NOTIFICATION, THE PARTIES MUST ADHERE TO
ESTABLISHED PERSONNEL
POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS,
INCLUDING THOSE CONTAINED IN
THE EXPIRED AGREEMENT, TO THE MAXIMUM EXTENT CONSISTENT WITH THE
NECESSARY FUNCTIONING OF THE
AGENCY.
BASED ON THE FOREGOING CRITERIA, EXPRESSED BY THE COUNCIL, ASSUMING
THAT THERE WERE AGENCY REGULATIONS ISSUED DURING THE TERM OF THE
AGREEMENT WHICH WERE NOT OPERATIVE WITH RESPECT TO THE BARGAINING UNIT
DURING SUCH TERM, SUCH BECAME EFFECTIVE AS MANDATED BY SECTION 12(A) OF
THE ORDER, UPON EXPIRATION OF THAT AGREEMENT AND DID NOT REQUIRE
BARGAINING ON THE PART OF THE RESPONDENT. BASED ON REPRESENTATIONS AS
TO DISCUSSIONS AT THE BARGAINING TABLE EVENTUATING IN THE MAY 12, 1978
LETTER THE COMPLAINANT WAS CERTAINLY ON NOTICE AS TO RESPONDENTS
POSITION LONG BEFORE MAY 12, 1978. I CONCLUDE THAT THE MAY 12 NOTICE
WAS ISSUED IN GOOD FAITH BY THE RESPONDENT.
SECOND, THE MAY 12, 1978 ANNOUNCEMENT OF A POLICY MATTER UNDER THE
CIRCUMSTANCES HEREIN, TO WIT, THAT "EFFECTIVE MONDAY, 15 MAY 1978
SEASONAL MILITARY CLOTHING, SUCH AS PARKAS AND CWU-7P JACKETS, WILL NOT
BE WORN WITH THE CIVILIAN UNIFORM" DOES NOT PER SE CONSTITUTE
IMPLEMENTATION OF SUCH DIRECTIVE. IN THIS CASE, THERE WAS NO EVIDENCE
PROFFERED THAT ANY BARGAINING UNIT OR OTHER EMPLOYEE OF RESPONDENT
APPLIED OR WAS REJECTED FOR SUCH SEASONAL MILITARY CLOTHING AND THE
RECORD DOES NOT OTHERWISE ESTABLISH THAT RESPONDENT ATTEMPTED TO
IMPLEMENT THE DIRECTIVE BEFORE RESCINDING THE PRIOR LETTER ON JUNE 16,
1978. THE FACT THAT RESPONDENT RESCINDED THE MAY 12 LETTER DOES NOT
ESTABLISH THAT IT WAS IN ANY WAY IMPROPERLY ISSUED BUT THAT RESPONDENT
WAS WILLING TO BARGAIN FURTHER ON THE MATTER UPON REQUEST.
THIRD, THE COMPLAINANT HAD BEEN AWARE OF THE RESPONDENT'S POSITION
WITH RESPECT TO THE WEARING OF SEASONAL MILITARY CLOTHING SINCE
BARGAINING SESSIONS ON RENEGOTIATION OF THE CONTRACT BEGAN IN MID-MARCH
1978 AND THAT NEW POLICY AND REGULATORY CHANGES MANDATED CHANGE IN THE
PRIOR AGREEMENT. THE RECORD DOES NOT ESTABLISH THAT THE RESPONDENT
REFUSED TO CONFER, CONSULT OR NEGOTIATE WITH THE COMPLAINANT AS TO THE
MATTER. IN FACT, IT AGREED TO RESCIND THE MAY 12, 1978 NOTICE PURSUANT
TO REQUEST OF COMPLAINANT AND HAS SINCE CONTINUED TO BARGAIN ON THE
MATTER.
I THUS CONCLUDE THAT THE RESPONDENT DID NOT INTERFERE WITH, RESTRAIN,
OR COERCE AN EMPLOYEE IN THE EXERCISE OF RIGHTS ASSURED BY THIS ORDER;
OR REFUSE TO CONSULT, CONFER OR NEGOTIATE WITH A LABOR ORGANIZATION AS
REQUIRED BY THE ORDER; AND, THAT THE COMPLAINANT HAS NOT SUSTAINED ITS
BURDEN OF PROVING BY A PREPONDERANCE OF THE EVIDENCE THAT THE RESPONDENT
VIOLATED THE PROVISIONS OF SECTION 19(A)(1) AND (6) OF THE ORDER.
RECOMMENDATION
HAVING FOUND FROM THE RECORD THAT THE RESPONDENT HAS NOT ENGAGED IN
CERTAIN CONDUCT PROHIBITED BY SECTION 19(A)(1) AND (6) OF EXECUTIVE
ORDER 11491, AS AMENDED, I RECOMMEND THAT THE SECRETARY FOR LABOR
MANAGEMENT RELATIONS ENTER AN ORDER DISMISSING THE COMPLAINT HEREIN IN
ITS ENTIRETY.
RHEA M. BURROW
ADMINISTRATIVE LAW JUDGE
DATED: JANUARY 30, 1979
WASHINGTON, D.C.
RMB:LE
/1/ THE AUTHORITY IN REACHING THE DISPOSITION HEREIN FINDS IT
UNNECESSARY TO ADOPT OR PASS UPON THE ADMINISTRATIVE LAW JUDGE'S FINDING
ON PAGE 10 OF HIS RECOMMENDED DECISION AND ORDER THAT THERE WAS NO
IMPLEMENTATION OF OR IMPACT FROM THE RESPONDENT'S MAY 12TH DIRECTIVE.
/2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224) THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/3/ WEARING OF SEASONAL MILITARY CLOTHING.
/4/ TRANSCRIPT, P. 129.
/5/ COMPLAINANT PRESENTED SOME EVIDENCE AT THE HEARING THAT AFTER THE
MAY 12, 1978 MEETING IT ATTEMPTED TO HAVE THE MAY 12, 1978 LETTER
RESCINDED BUT WAS ADVISED IT HAD ALREADY BEEN DISPATCHED. (ALSO, SEE
ASSISTANT SECRETARY'S EXHIBIT NO. 5). THE POSSIBLE LACK OF TIME FOR
FULL CONSIDERATION OF THE LETTER BY COMPLAINANT WAS LATER REPORTED BY
THE RESPONDENT TO BE ONE OF THE REASONS FOR THE SUBSEQUENT RECISION.
/6/ COMPLAINANT EXHIBITS NOS. 2 AND 3.
/7/ SEE CROSS EXAMINATION OF MAJOR MEEHAN PP. 142, 143, 144, 145, 146
AND 147.
/8/ I HAVE DISREGARDED CONSIDERATION OF THIS ITEM AS I HAVE BEEN
UNABLE TO FIND ANY REFERENCE OF EXHIBIT AS TO THIS HAVING BEEN PRESENTED
AT THE HEARING.