[ v01 p649 ]
01:0649(73)CA
The decision of the Authority follows:
1 FLRA No. 73
DEPARTMENT OF ARMY AND AIR FORCE,
DEPARTMENT OF DEFENSE,
DIVISION OF MILITARY AFFAIRS,
STATE OF NEW YORK
Respondent
and
ASSOCIATION OF CIVILIAN TECHNICIANS
NEW YORK COUNCIL
Complainant
Assistant Secretary
Case No. 35-04756(CA)
DECISION AND ORDER
ON JANUARY 24, 1979, ADMINISTRATIVE LAW JUDGE GARVIN LEE OLIVER
ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE ENTITLED
PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR
LABOR PRACTICES IN VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER
AND RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER. THEREAFTER, THE RESPONDENT
FILED EXCEPTIONS 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 RESPONDENT'S EXCEPTIONS, WE HEREBY ADOPT THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, /1/ AND
RECOMMENDATIONS. /2/
ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, 26
C.F.R. SECTION 203.26(B), AND SECTION 2400.2 OF THE TRANSITION RULES AND
REGULATIONS (5 C.F.R. 2400.2 FED. REG. VOL. 44, NO. 1, JANUARY 2, 1979,
P. 7), THE AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF ARMY AND AIR
FORCE, DEPARTMENT OF DEFENSE, DIVISION OF MILITARY AFFAIRS, STATE OF NEW
YORK, SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY REFUSING TO PROCEED TO ARBITRATION REGARDING A
DISAGREEMENT CONCERNING THE INTERPRETATION OR APPLICATION OF ARTICLE 21,
SECTION 3 OF ITS SEPTEMBER 15, 1975, NEGOTIATED AGREEMENT WITH THE
ASSOCIATION OF CIVILIAN TECHNICIANS, NEW YORK COUNCIL, AND THE SELECTION
OF AN ARBITRATOR, AFTER RECEIVING TIMELY NOTICE OF SAID LABOR
ORGANIZATIONS DESIRE TO INVOKE ARBITRATION AND TO HAVE AN ARBITRATOR
SELECTED PURSUANT TO THE AGREEMENT.
(B) REFUSING TO FURNISH, UPON REQUEST BY THE ASSOCIATION OF CIVILIAN
TECHNICIANS, NEW YORK COUNCIL, THE EMPLOYEES EXCLUSIVE REPRESENTATIVE,
SUCH INFORMATION AS IS NECESSARY AND RELEVANT TO ENABLE IT TO PERFORM
ITS REPRESENTATIONAL DUTIES.
(C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED.
(A) UPON REQUEST, PROCEED TO THE SELECTION OF AN ARBITRATOR AND TO
ARBITRATION REGARDING A DISAGREEMENT CONCERNING THE INTERPRETATION OR
APPLICATION OF ARTICLE 21, SECTION 3 OF ITS SEPTEMBER 15, 1975,
NEGOTIATED AGREEMENT WITH THE ASSOCIATION OF CIVILIAN TECHNICIANS, NEW
YORK COUNCIL.
(B) UPON REQUEST, FURNISH SUCH INFORMATION AS IS NECESSARY AND
RELEVANT TO THE ASSOCIATION OF CIVILIAN TECHNICIANS, NEW YORK COUNCIL,
TO ENABLE IT TO PERFORM ITS REPRESENTATIONAL DUTIES.
(C) POST AT ITS FACILITIES AND INSTALLATIONS COPIES OF THE ATTACHED
NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY.
UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE CHIEF OF STAFF
AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
CHIEF OF STAFF SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES
ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(D) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., JUNE 19, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT UNILATERALLY REFUSE TO PROCEED TO ARBITRATION REGARDING A
DISAGREEMENT CONCERNING THE INTERPRETATION OR APPLICATION OF ARTICLE 21,
SECTION 3 OF OUR SEPTEMBER 15, 1975, NEGOTIATED AGREEMENT WITH THE
ASSOCIATION OF CIVILIAN TECHNICIANS, NEW YORK COUNCIL, AND THE SELECTION
OF AN ARBITRATOR, AFTER RECEIVING TIMELY NOTICE OF SAID LABOR
ORGANIZATIONS DESIRE TO INVOKE ARBITRATION AND TO HAVE AN ARBITRATOR
SELECTED PURSUANT TO THE AGREEMENT.
WE WILL NOT REFUSE TO FURNISH, UPON REQUEST BY THE ASSOCIATION OF
CIVILIAN TECHNICIANS, NEW YORK COUNCIL, THE EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, SUCH INFORMATION AS IS NECESSARY AND RELEVANT TO ENABLE
IT TO PERFORM ITS REPRESENTATIONAL DUTIES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL, UPON REQUEST, PROCEED TO THE SELECTION OF AN ARBITRATOR AND
TO ARBITRATION REGARDING A DISAGREEMENT CONCERNING THE INTERPRETATION OR
APPLICATION OF ARTICLE 21, SECTION 3 OF OUR SEPTEMBER 15, 1975,
NEGOTIATED AGREEMENT WITH THE ASSOCIATION OF CIVILIAN TECHNICIANS, NEW
YORK COUNCIL.
WE WILL, UPON REQUEST, FURNISH SUCH INFORMATION AS IS NECESSARY AND
RELEVANT TO THE ASSOCIATION OF CIVILIAN TECHNICIANS, NEW YORK COUNCIL,
TO ENABLE IT TO PERFORM ITS REPRESENTATION DUTIES.
(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
MATERIALS.
IF ANY 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,
WHOSE ADDRESS IS: ROOM 211, NEW STUDIO BUILDING, 110 TREMONT STREET,
BOSTON, MASSACHUSETTS 02108.
C. ROGER LUNDEN, ESQUIRE
HOWARD A. RUBENSTEIN, ESQUIRE
FREDERICK ALTMAN, ESQUIRE
PUBLIC SECURITY BUILDING
STATE CAMPUS
ALBANY, NEW YORK 12226
FOR THE RESPONDENT
VICTOR ALAN OLIVERI, ESQUIRE
786 ELLICOTT SQUARE BUILDING
BUFFALO, NEW YORK 14203
FOR THE COMPLAINANT
BEFORE: GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
THIS CASE AROSE PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED, AS A
RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON OCTOBER 31, 1977
AND AN AMENDED COMPLAINT DATED APRIL 21, 1978, FILED BY THE ASSOCIATION
OF CIVILIAN TECHNICIANS, NEW YORK COUNCIL (HEREINAFTER CALLED THE
COMPLAINANT OR THE UNION), AGAINST THE DIVISION OF MILITARY AFFAIRS,
STATE OF NEW YORK (HEREINAFTER CALLED THE RESPONDENT OR THE ACTIVITY).
THE AMENDED COMPLAINT ALLEGED, IN SUBSTANCE, THAT THE RESPONDENT
VIOLATED SECTIONS 19(A)(1) AND (6) OF THE EXECUTIVE ORDER BY (1)
UNILATERALLY BREACHING AN ARTICLE OF THE PARTIES' NEGOTIATED AGREEMENT,
(2) REFUSING TO PROCEED TO ARBITRATION AND THE SELECTION OF AN
ARBITRATOR PURSUANT TO THE NEGOTIATED AGREEMENT, AND (3) PROVIDING THE
UNION WITH MISLEADING INFORMATION CONCERNING THE STATUS OF A REQUEST
MADE BY RESPONDENT TO THE ASSISTANT SECRETARY OF LABOR.
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED IN ALBANY,
NEW YORK. BOTH PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE RELEVANT EVIDENCE, AND TO EXAMINE AND
CROSS-EXAMINE WITNESSES. POSTHEARING BRIEFS HAVE BEEN RECEIVED FROM
BOTH PARTIES WHICH WERE MOST HELPFUL AND DULY CONSIDERED.
BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
FINDINGS OF FACT
COMPLAINANT IS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF A UNIT OF
EMPLOYEES CONSISTING OF ALL NON-SUPERVISORY CIVILIAN TECHNICIANS IN THE
NEW YORK ARMY AND AIR NATIONAL GUARD.
AT ALL MATERIAL TIMES HEREIN THE PARTIES HAD A NEGOTIATED AGREEMENT
WHICH WAS TO REMAIN IN FULL FORCE AND EFFECT THROUGH OCTOBER 2, 1977.
(JOINT EXHIBIT 1; TR. 29).
ARTICLE 21, SECTION 3 OF THE AGREEMENT PROVIDED:
WHEN A DECISION HAS BEEN MADE BY HIGHER AUTHORITY THAT MATTERS
PREVIOUSLY DETERMINED TO BE
NON-NEGOTIABLE MAY NOW BE NEGOTIATED, BOTH PARTIES WILL MEET TO
CONSIDER PROPOSALS RELATIVE TO
SUCH MATTERS.
THIS PROVISION WAS MADE A PART OF THE AGREEMENT IN PART BECAUSE OF
THE LONGSTANDING DISPUTE AS TO NEGOTIABILITY OF PROPOSALS CONCERNING THE
WEARING OF THE MILITARY UNIFORM BY CIVILIAN TECHNICIANS.
ON JANUARY 19, 1977 THE FEDERAL LABOR RELATIONS COUNCIL (FLRC) ISSUED
ITS DECISIONS IN KANSAS NATIONAL GUARD AND CONSOLIDATED CASES, FLRC NO.
76A-16, REP. 120; 4 FLMC 77-4, HOLDING THAT "NO COMPELLING NEED EXISTS
FOR THE NGB (NATIONAL GUARD BUREAU) REGULATION REQUIRING ALL NATIONAL
GUARD TECHNICIANS WORKING IN THEIR TECHNICIAN STATUS UNDER VIRTUALLY ALL
CIRCUMSTANCES TO WEAR MILITARY UNIFORMS AND, AS INTERPRETED BY THE
AGENCY HEAD, TO OBSERVE MILITARY GROOMING STANDARDS." THE FLRC HELD THAT
THE PROPOSALS SUBMITTED BY THE UNION IN THAT REGARD "ARE PROPERLY
SUBJECT TO NEGOTIATION BY THE PARTIES CONCERNED UNDER SECTION 11(A) OF
THE ORDER." (JOINT EXHIBIT 3, P. 18-19).
ON JANUARY 23, 1977, MR. TEDESCO, PRESIDENT OF THE COMPLAINANT, SENT
A MAILGRAM TO RESPONDENT REFERENCING THE FLRC DECISION AND ARTICLE
21,SECTION 3 OF THE AGREEMENT, AND REQUESTING "1. THAT ALL TECHNICIANS
IN THE BARGAINING UNIT IN NEW YORK STATE BE RETURNED TO CIVILIAN ATTIRE.
2. THAT WE IMMEDIATELY RETURN TO THE NEGOTIATING TABLE TO CONFIRM,
CONSULT AND NEGOTIATE THE UNIFORM ISSUE." (JOINT EXHIBIT 6).
IN AN EXCHANGE OF CORRESPONDENCE RESPONDENT TOOK THE POSITION THAT
ARTICLE 21, SECTION 3 CONTAINED PERMISSIVE LANGUAGE WHICH DID NOT
MANDATE IMMEDIATE NEGOTIATIONS LIMITED SOLELY TO UNIFORM WEARING, USE OF
RANK AND GROOMING STANDARDS. RESPONDENT ALSO ASSERTED THAT IT WAS NOT
IN THE BEST INTEREST OF THE NATIONAL GUARD TO PROCEED WITH NEGOTIATIONS
ON THESE MATTERS INASMUCH AS THEIR NEGOTIABILITY WAS STILL INVOLVED IN
PENDING LITIGATION. (JOINT EX. 12). RESPONDENT WAS AWARE THAT THE
NATIONAL GUARD BUREAU HAD PETITIONED THE FLRC TO RECONSIDER AND STAY ITS
JANUARY 19, 1977 DECISION, AND FELT THAT UNTIL THE FLRC EITHER REJECTED
THE PETITION OR RULED ON IT, A STAY OF THE FLRC DECISION WAS IN EFFECT.
(TR. 38; 69-70; 156). RESPONDENT NOTED THAT UNDER THE TERMS OF THE
NEGOTIATED AGREEMENT THE PARTIES WERE DUE TO COMMENCE NEGOTIATION ON A
NEW AGREEMENT AS OF AUGUST 1977 /3/ AND OFFERED TO OPEN THE ENTIRE
CONTRACT FOR NEGOTIATION. (JOINT EX. 10, 12).
THE COMPLAINANT REJECTED THE OFFER TO REOPEN COMPLETE CONTRACT
NEGOTIATIONS, AND, ON APRIL 18, 1977, FORMALLY REQUESTED THAT THE
DISPUTE CONCERNING THE INTERPRETATION OF ARTICLE 21, SECTION 3 BE
REFERRED TO IMPARTIAL ARBITRATION PURSUANT TO ARTICLE 17 OF THE
NEGOTIATED AGREEMENT AND THAT THE PARTIES MEET TO SELECT AN ARBITRATOR.
(JOINT EX. 14). SINCE NO MEETING WAS HELD, THE COMPLAINANT, PURSUANT TO
ARTICLE 17, SECTION 2, OF THE AGREEMENT, REQUESTED THE FEDERAL MEDIATION
AND CONCILIATION SERVICE (FMCS) TO SUBMIT A LIST OF FIVE QUALIFIED
ARBITRATORS. COMPLAINANT CHECKED A.SQUARE ON THE FORM WHICH INDICATED
THAT THE "FEDERAL GOVERNMENT" WAS THE "TYPE OF INDUSTRY" INVOLVED IN THE
DISPUTE. (JOINT EX. 15-18).
THE FMCS SUBSEQUENTLY FORWARDED A LIST OF FIVE ARBITRATORS, AND THE
COMPLAINANT REQUESTED A MEETING WITH RESPONDENT TO SELECT AN ARBITRATOR
FROM THE LIST. (TR. 45). ARTICLE 17, SECTION 2 OF THE NEGOTIATED
AGREEMENT PROVIDED FOR THE SELECTION OF AN ARBITRATOR IN THESE
CIRCUMSTANCES IN THE FOLLOWING MANNER:
THE PARTIES SHALL MEET WITHIN FIVE (5) WORK DAYS AFTER RECEIPT OF
SUCH LIST. IF THEY
CANNOT MUTUALLY AGREE UPON ONE (1) OF THE LISTED ARBITRATORS, THE
EMPLOYER AND THE UNION WILL
EACH STRIKE ONE (1) NAME FROM THE LIST OF FIVE (5) AND SHALL THEN
REPEAT THIS PROCEDURE. THE
PERSON WHOSE NAME REMAINS ON THE LIST SHALL BE THE DULY SELECTED
ARBITRATOR. (JOINT EX. 1,
P. 20).
THE PARTIES MET ON MAY 17, 1977; HOWEVER, RESPONDENT REFUSED TO
SELECT AN ARBITRATOR FROM THE LIST. (TR. 46). RESPONDENT POINTED OUT
TO COMPLAINANT THAT NONE OF THE ARBITRATORS ON THE LIST HAD ANY
EXPERIENCE IN THE FEDERAL SECTOR AND SUGGESTED THAT THE PARTIES REQUEST
A SECOND LIST OF ARBITRATORS WITH FEDERAL SECTOR EXPERIENCE. (TR. 46,
JOINT EX. 19). COMPLAINANT REJECTED THIS OFFICER AND INSISTED ON
SELECTING AN ARBITRATOR BY THE MEANS SET OUT IN THE AGREEMENT. (TR.
102-103). RESPONDENT REPLIED THAT IT WOULD FORWARD A LETTER TO THE
ASSISTANT SECRETARY CONCERNING THE MATTER. (TR. 48-49).
ON MAY 18, 1977 RESPONDENT WROTE DIRECTLY TO THE ASSISTANT SECRETARY
OF LABOR FOR LABOR MANAGEMENT RELATIONS SETTING FORTH THE HISTORY OF THE
DISPUTE AND REQUESTING THAT HE REVIEW THE PETITION FOR ARBITRATION.
RESPONDENT ALLEGED THAT NEGOTIATION ON THE UNIFORM ISSUE WOULD BE
PREMATURE PENDING A REPLY OF THE FLRC TO THE RECONSIDERATION REQUEST;
THAT RESPONDENT WAS WILLING TO OPEN THE ENTIRE CONTRACT FOR NEGOTIATION;
AND, IF THAT WAS NOT POSSIBLE, THAT A SECOND LIST OF ARBITRATORS WITH
FEDERAL EXPERIENCE SHOULD BE PROVIDED. (JOINT EX. 19).
BY LETTER DATED MAY 31, 1977 THE OFFICE OF THE ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS ADVISED RESPONDENT THAT THE PROPER
PROCEDURE FOR OBTAINING A DETERMINATION REGARDING ARBITRABILITY WAS TO
FILE AN APPLICATION IN ACCORDANCE WITH PART 205 OF THE ASSISTANT
SECRETARY'S REGULATIONS, AND THAT FURTHER INFORMATION COULD BE OBTAINED
FROM, OR SUCH AN APPLICATION FILED WITH, THE NEW YORK AREA OFFICE OF THE
LABOR-MANAGEMENT SERVICES ADMINISTRATION. (JOINT EXHIBIT 26).
COMPLAINANT DID NOT RECEIVE A COPY OF THE LETTER, AND RESPONDENT DID
NOT NOTIFY COMPLAINANT OF ITS RECEIPT. RESPONDENT ALSO TOOK NO ACTION
TO FILE AN APPLICATION REGARDING ARBITRABILITY WITH THE LOCAL OFFICE OF
THE DEPARTMENT OF LABOR. (TR. 59).
ON MAY 18, 1977 THE FLRC RENDERED A FURTHER OPINION DENYING THE
REQUEST FOR RECONSIDERATION AND A STAY OF ITS JANUARY 19, 1977 DECISION.
RESPONDENT RECEIVED THIS INFORMATION ON MAY 24, 1977. (TR. 49).
ON MAY 21, 1977 COMPLAINANT FILED A PETITION WITH THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK TO COMPEL
RESPONDENT TO ARBITRATE THEIR DISAGREEMENT. (JOINT EX. 27; TR. 105).
ON JUNE 8, 1977 COMPLAINANT AND RESPONDENT MET TO DISCUSS THE CASE.
RESPONDENT'S POSITION WAS THAT IT WOULD NOT RETURN TO THE TABLE SOLELY
TO DISCUSS THE ISSUE OF UNIFORM WEARING, BUT WOULD RETURN TO NEGOTIATE
THE WHOLE CONTRACT. (TR. 106; 137). COMPLAINANT INSISTED ON A RETURN
TO DISCUSS THE UNIFORM ISSUE PURSUANT TO THE AGREEMENT; HOWEVER, IT
EXPRESSED A WILLINGNESS TO COMMENCE NEGOTIATION ON THE WHOLE CONTRACT
AND DISMISS THE COURT ACTION IF TECHNICIANS WERE IMMEDIATELY ALLOWED TO
WEAR CIVILIAN ATTIRE. NO AGREEMENT WAS REACHED. (TR. 137-138).
ON AUGUST 16, 1977 COMPLAINANT REQUESTED RESPONDENT TO ADVISE IT
CONCERNING THE STATUS OF RESPONDENT'S "ALLEGED PETITION FOR
ARBITRABILITY" WHICH HAD BEEN SENT TO THE ASSISTANT SECRETARY. (JOINT
EX. 20).
ON AUGUST 19, 1977 RESPONDENT REPLIED THAT NO FURTHER CLARIFICATION
COULD BE OFFERED AS THE REQUEST "MUST STILL BE UNDER CONSIDERATION."
(JOINT EX. 21).
ON AUGUST 29, 1977 RESPONDENT'S COUNSEL WROTE THE ASSISTANT SECRETARY
REQUESTING THE STATUS OF THE "ALLEGED ATTEMPT TO REQUEST AN
ARBITRABILITY DECISION FROM YOUR OFFICE." HE NOTED THAT "THE UNION HAS
HELD IN ABEYANCE ALL PROPOSED ACTIONS IN FRONT OF THE DEPARTMENT OF
LABOR AWAITING SOME RESPONSE . . . HOWEVER, IT IS OUR UNDERSTANDING
THAT THE MAY 18TH LETTER IS INAPPROPRIATE TO COMMENCE ON ARBITRABILITY
REQUEST AND SUCH MATTERS SHOULD BE INITIATED IN FRONT OF THE LOCAL
OFFICE OF THE DEPARTMENT OF LABOR." (JOINT EX. 22).
ON SEPTEMBER 2, 1977 RESPONDENT FORWARDED A LETTER TO COMPLAINANT'S
COUNSEL AND ENCLOSED A COPY OF AN ARBITRABILITY DECISION THAT IT CLAIMED
PERTAINED TO THE DISPUTE. (JOINT EX. 23). SINCE THE ENCLOSURE HAD
NOTHING TO DO WITH THE UNIFORM DISPUTE, COMPLAINANT'S COUNSEL OBJECTED
TO THE MATERIAL AND REITERATED THAT COMPLAINANT WAS REQUESTING
INFORMATION CONCERNING "YOUR ALLEGED AND IMPROPER REQUEST DIRECTLY TO
THE ASSISTANT SECRETARY . . . OF MAY 18, 1977 . . . " (JOINT EX. 24).
ON SEPTEMBER 8, 1977 THE OFFICE OF THE ASSISTANT SECRETARY OF LABOR
ADVISED COMPLAINANT'S COUNSEL THAT IT HAD RESPONDED TO RESPONDENT'S MAY
18, 4977 REQUEST ON MAY 31, 1977 BY FURNISHING INFORMATION AS TO THE
CORRECT PROCEDURES FOR OBTAINING A DETERMINATION REGARDING
ARBITRABILITY, BUT THAT NO SUCH APPLICATION HAD BEEN FILED. (JOINT EX.
25).
THE UNFAIR LABOR PRACTICE CHARGE AND COMPLAINT WERE FILED SHORTLY
THEREAFTER. (ASST. SEC. EX. 18).
ON APRIL 14, 1978, THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF NEW YORK DISMISSED, AS MOOT, COMPLAINANT'S PETITION TO
COMPEL RESPONDENT TO ARBITRATE, ON THE BASIS THAT THE NEGOTIATED
AGREEMENT EXPIRED IN SEPTEMBER OF 1977. (JOINT EX. 27).
DISCUSSION, CONCLUSION AND RECOMMENDATIONS
1. ALLEGED REFUSAL TO NEGOTIATE UNIFORM WEARING UNDER TERMS OF
AGREEMENT
COMPLAINANT CONTENDS THAT RESPONDENT VIOLATED SECTION 19(A)(1) AND
(6) OF THE ORDER BY BREACHING ARTICLE 21, SECTION 3 OF THE NEGOTIATED
AGREEMENT, WHEN, FOLLOWING THE JANUARY 19, 1977 DECISION OF THE FLRC
THAT THE UNIFORM WEARING ISSUE WAS NEGOTIABLE, AND/OR THE MAY 18, 1977
FLRC DECISION DENYING THE REQUEST FOR RECONSIDERATION AND A STAY.
RESPONDENT REFUSED TO MEET TO CONSIDER PROPOSALS RELATIVE TO SUCH
MATTERS. AS NOTED, ARTICLE 21, SECTION 3, PROVIDED THAT "WHEN A
DECISION HAS BEEN MADE BY HIGHER AUTHORITY THAT MATTERS PREVIOUSLY
DETERMINED TO BE NON-NEGOTIABLE MAY NOW BE NEGOTIATED, BOTH PARTIES WILL
MEET TO CONSIDER PROPOSALS RELATIVE TO SUCH MATTERS."
A PARTY TO A NEGOTIATED AGREEMENT ACTS AS ITS PERIL IN INTERPRETING
AND APPLYING SUCH AGREEMENT. THUS, IF THE RESPONDENT'S INTERPRETATION
OF THE NEGOTIATED AGREEMENT WAS SUCH THAT IT RESULTED IN A CLEAR AND
PATENT BREACH OF THE TERMS OF THE AGREEMENT, THEN SUCH INTERPRETATION
COULD RISE TO THE LEVEL OF AN UNFAIR LABOR PRACTICE. ON THE OTHER HAND,
IF RESPONDENT'S INTERPRETATION WAS ARGUABLY WITHIN THE TERMS OF THE
NEGOTIATED AGREEMENT, THEN SUCH INTERPRETATION WOULD MERELY BE A MATTER
OF CONTRACT INTERPRETATION TO BE RESOLVED THROUGH THE PARTIES' GRIEVANCE
AND ARBITRATION MACHINERY. SEE DEPARTMENT OF THE NAVY, NAVAL AIR REWORK
FACILITY, A/SLMR NO. 1089 (1978) AND CASES CITED THEREIN.
SECTION 19(D) OF THE EXECUTIVE ORDER PROVIDES, IN PERTINENT PART,
"ISSUES WHICH CAN BE RAIDED UNDER A GRIEVANCE PROCEDURE MAY, IN THE
DISCRETION OF THE AGGRIEVED PARTY, BE RAISED UNDER THAT PROCEDURE OR THE
COMPLAINT PROCEDURE, BUT NOT UNDER BOTH PROCEDURES." SINCE THE PRECISE
ISSUE RAISED IN THE COMPLAINT OF WHETHER RESPONDENT BREACHED ARTICLE 21,
SECTION 3 OF THE AGREEMENT BY REFUSING TO NEGOTIATE THE UNIFORM WEARING
ISSUE FOLLOWING THE FLRC DECISION WAS ALSO RAISED UNDER THE
GRIEVANCE-ARBITRATION PROVISION OF THE AGREEMENT, THIS PORTION OF THE
COMPLAINT IS BARRED FROM CONSIDERATION UNDER THE UNFAIR LABOR PRACTICES
PROCEDURES BY SECTION 19(D) OF THE ORDER. CF. DEPARTMENT OF THE ARMY
U.S. ARMY TRANSPORTATION CENTER AND FORT EUSTIS, VIRGINIA, 6 A/SLMR NO.
681 (1976); DEPARTMENT OF DEFENSE, DEPENDENTS SCHOOLS, EUROPE, CASE NO.
22-08769(CA)(1978).
2. ALLEGED REFUSAL TO ARBITRATE DISPUTE ON MAY 18, 1977 AND JUNE 8,
1977 UNDER TERMS OF AGREEMENT.
COMPLAINANT CONTENDS THAT RESPONDENT VIOLATED SECTION 19(A)(1) AND
(6) OF THE ORDER BY UNILATERALLY REFUSING TO PROCEED TO ARBITRATION ON
MAY 18, 1977 AND JUNE 8, 1977 PURSUANT TO THE NEGOTIATED AGREEMENT AND
BY UNILATERALLY REJECTING THE LIST OF ARBITRATORS.
WHEN A PARTY IN GOOD FAITH ASSERTS THAT A MATTER IS NOT ARBITRABLE
UNDER A NEGOTIATED AGREEMENT, A DETERMINATION OF ARBITRABILITY WAS
AVAILABLE FROM THE ASSISTANT SECRETARY PURSUANT TO SECTION 13(D) OF THE
ORDER, AND THIS PROCEDURE WAS THE PROPER VEHICLE FOR RESOLUTION OF SUCH
AN ISSUE. NAVAL AIR REWORK FACILITY, A/SLMR NO. 849 (1977). THE
ESSENTIAL QUESTION IN THIS CASE IS WHETHER RESPONDENT'S ACTIONS WERE
TAKEN IN GOOD FAITH.
THE RECORD REFLECTS THAT ON MAY 18, 1977 RESPONDENT APPEARED TO
SERIOUSLY QUESTION, AMONG OTHER THINGS, WHETHER IT WAS REQUIRED TO
PROCEED TO ARBITRATION ON AN ISSUE RELATING TO THE UNIFORM WEARING
DISPUTE WHILE THE PETITION FOR RECONSIDERATION AND STAY OF THE FLRC
DECISION WAS PENDING. INASMUCH AS THE RESPONDENT OFFERED TO, AND DID,
FORWARD A LETTER TO THE ASSISTANT SECRETARY CONCERNING THE MATTER,
ALBEIT TO THE WRONG OFFICE, I CANNOT CONCLUDE THAT RESPONDENT ACTED IN
BAD FAITH AT THIS TIME.
HOWEVER, THE QUESTION AS TO THE FINALITY OF THE FLRC DECISION WAS
RENDERED MOOT ON MAY 18, 1977, WHEN THE FLRC DENIED THE MOTION FOR
RECONSIDERATION AND A STAY, AND RESPONDENT LEARNED OF THIS DECISION ON
MAY 24, 1977. MOREOVER, UPON BEING ADVISED BY THE OFFICE OF THE
ASSISTANT SECRETARY AS TO THE PROPER PROCEDURE FOR OBTAINING A
DETERMINATION OF ARBITRABILITY, ON MAY 31, 1977, RESPONDENT NEITHER
SOUGHT TO DO SO, NOR DID IT ADVISE COMPLAINANT OF THE FACT THAT ITS
REQUEST TO THE ASSISTANT SECRETARY WAS NOT LONGER PENDING. THEREFORE,
RESPONDENT WAS OBLIGATED AT THIS TIME EITHER TO NEGOTIATE THE UNIFORM
WEARING ISSUE OR TO SELECT AN ARBITRATOR AND PROCEED TO ARBITRATION ON
THE DISPUTE AS TO THE MEANING OF ARTICLE 21, SECTION 3, AS HAD BEEN
REQUESTED.
RESPONDENT'S POSITION THAT IT COULD TAKE NO ACTION AFTER MAY 21, 1977
BECAUSE OF THE FEDERAL . . . . . . IS WITHOUT MERIT. THE ACTION IN THE
FEDERAL COURT WAS NOT TO ENJOIN ACTION BY RESPONDENT IN CONFORMANCE WITH
THE EXECUTIVE ORDER, BUT TO COMPEL RESPONDENT TO ARBITRATE THE DISPUTE.
IT DID NOT PREVENT RESPONDENT FROM EITHER NEGOTIATING THE ISSUE OF
UNIFORM WEARING UNDER ARTICLE 21, SECTION 3, OR PROCEEDING TO
VOLUNTARILY ARBITRATE THE DISPUTE. INDEED, ANY ACTION OF THIS NATURE BY
RESPONDENT WOULD PROBABLY HAVE RENDERED THE COURT ACTION MOOT. I FIND
RESPONDENT'S OTHER EXCUSES FOR FAILING TO PROCEED AT THIS TIME ALSO TO
BE WITHOUT MERIT.
THEREFORE, RESPONDENT'S ACTION ON JUNE 18, 1977 IN UNILATERALLY
REFUSING TO ARBITRATE THE DISPUTE AS TO ARTICLE 21, SECTION 3 IN
ACCORDANCE WITH PROVISIONS OF THE NEGOTIATED AGREEMENT WAS NOT MADE IN
GOOD FAITH AND VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER. CF.
ARMY AND AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE CONSOLIDATED EXCHANGE,
FORT DIX, NEW JERSEY, 6 A/SLMR 456 (1976), A/SLMR NO. 700.
3. ALLEGED FURNISHING OF MISLEADING INFORMATION
COMPLAINANT ALSO ASSERTS THAT RESPONDENT'S ACTION IN PROVIDING THE
UNION WITH MISLEADING INFORMATION CONCERNING THE STATUS OF RESPONDENT'S
MAY 18, 1977 LETTER TO THE ASSISTANT SECRETARY VIOLATED SECTION 19(A)
(1) AND (6) OF THE ORDER.
THE RESPONDENT DID NOT ADVISE COMPLAINANT OF THE MAY 31, 1977 REPLY
OF THE OFFICE OF THE ASSISTANT SECRETARY WHICH IT RECEIVED IN RESPONSE
TO RESPONDENT'S MAY 18, 1977 LETTER CONCERNING COMPLAINANT'S PETITION
FOR ARBITRATION. FURTHERMORE, WHEN COMPLAINANT INQUIRED OF RESPONDENT
CONCERNING THE STATUS OF RESPONDENT'S "ALLEGED PETITION FOR
ARBITRABILITY," ALMOST TWO AND ONE HALF MONTHS LATER, RESPONDENT WRONGLY
REPLIED THAT NO FURTHER CLARIFICATION COULD BE OFFERED AS THE REQUEST
"MUST STILL BE UNDER CONSIDERATION." LATER, RESPONDENT FORWARDED AN
ARBITRABILITY DECISION TO COMPLAINANT WHICH HAD NOTHING TO DO WITH THE
MATTER.
AGENCY MANAGEMENT MUST PROVIDE AN EXCLUSIVE REPRESENTATIVE WITH
INFORMATION IT SEEKS WHICH IS NECESSARY AND RELEVANT FOR THE PERFORMANCE
OF ITS REPRESENTATIONAL FUNCTIONS. DEPARTMENT OF THE TREASURY, INTERNAL
REVENUE SERVICE AND IRS MILWAUKEE DISTRICT, A/SLMR NO. 1133(1978).
THE INFORMATION WHICH THE UNION SOUGHT WAS RELEVANT AND NECESSARY
INFORMATION RELATING TO ITS DUTY TO ADMINISTER ITS NEGOTIATED AGREEMENT
AND TO PERFORM ITS REPRESENTATIONAL FUNCTION. THE UNION WAS HOLDING IN
ABEYANCE FURTHER ACTION TO ENFORCE ITS RIGHTS UNDER THE EXECUTIVE ORDER
WHILE THE "ALLEGED ATTEMPT TO REQUEST AN ARBITRABILITY DECISION" WAS
PENDING. (JOINT EX. 22). WHILE THE UNION COULD HAVE OBTAINED A STATUS
REPORT ON RESPONDENT'S REQUEST DIRECTLY FROM THE ASSISTANT SECRETARY, AS
IT LATER DID, NEVERTHELESS, UPON MAKING THE REQUEST OF RESPONDENT FOR
THE INFORMATION, RESPONDENT SHOULD HAVE MADE EVERY EFFORT TO PROVIDE THE
UNION THE FULL, ACCURATE, AND COMPLETE INFORMATION WHICH IT THEN
POSSESSED. INSTEAD, RESPONDENT HANDLED THE REQUEST IN SUCH A MANNER AS
TO MISLEAD AND FRUSTRATE COMPLAINANT'S EFFORTS. I CONCLUDE THAT
RESPONDENT'S ACTIONS, WHICH RESULTED IN A FAILURE TO FURNISH THE UNION
THE INFORMATION WHICH IT SOUGHT, VIOLATED SECTION 19(A)(1) AND (6) OF
THE ORDER.
RECOMMENDATIONS
UPON THE BASIS OF THE AFOREMENTIONED FINDINGS, CONCLUSIONS, AND THE
ENTIRE RECORD, I RECOMMEND THAT THE AUTHORITY DISMISS, AS BARRED BY
SECTION 19(D) OF THE ORDER, THAT PART OF THE COMPLAINT ALLEGING THAT
RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE EXECUTIVE ORDER BY
UNILATERALLY BREACHING THE NEGOTIATED AGREEMENT IN REFUSING TO NEGOTIATE
THE UNIFORM WEARING ISSUE FOLLOWING THE FLRC DECISION, AND ADOPT THE
FOLLOWING ORDER CONCERNING THE OTHER VIOLATIONS:
RECOMMENDED ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, 29
C.F.R. SECTION 203.26(B), AND SECTION 2400.2 OF THE TRANSITION RULES AND
REGULATIONS (5 C.F.R. 2400.2 FED.REG.VOL. 44, NO. 1, JANUARY 2, 1979,
P. 7), THE AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF ARMY AND AIR
FORCE, DEPARTMENT OF DEFENSE, DIVISION OF MILITARY AFFAIRS, STATE OF NEW
YORK, SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY REFUSING TO PROCEED TO ARBITRATION REGARDING A
DISAGREEMENT CONCERNING THE
INTERPRETATION OR APPLICATION OF ARTICLE 21, SECTION 3 OF ITS
SEPTEMBER 15, 1975 NEGOTIATED
AGREEMENT WITH THE ASSOCIATION OF CIVILIAN TECHNICIANS, NEW YORK
COUNCIL, AND THE SELECTION OF
AN ARBITRATOR, AFTER RECEIVING TIMELY NOTICE OF SAID LABOR
ORGANIZATIONS DESIRE TO INVOKE
ARBITRATION AND TO HAVE AN ARBITRATOR SELECTED PURSUANT TO THE
AGREEMENT.
(B) REFUSING TO FURNISH, UPON REQUEST BY THE ASSOCIATION OF CIVILIAN,
TECHNICIANS, NEW YORK
COUNCIL, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, SUCH INFORMATION AS
IS NECESSARY AND
RELEVANT TO ENABLE IT TO PERFORM ITS REPRESENTATIONAL DUTIES.
(C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS ASSURED BY THE EXECUTIVE ORDER 11491, AS
AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED.
(A) UPON REQUEST, PROCEED TO THE SELECTION OF AN ARBITRATOR AND
ARBITRATION REGARDING A
DISAGREEMENT CONCERNING THE INTERPRETATION OR APPLICATION OF ARTICLE
21, SECTION 3 OF ITS
SEPTEMBER 15, 1975 NEGOTIATED AGREEMENT WITH THE ASSOCIATION OF
CIVILIAN TECHNICIANS, NEW YORK
COUNCIL.
(B) UPON REQUEST, FURNISH SUCH INFORMATION AS IS NECESSARY AND
RELEVANT TO THE ASSOCIATION
OF CIVILIAN TECHNICIANS, NEW YORK COUNCIL, TO ENABLE IT TO PERFORM
ITS REPRESENTATIONAL
DUTIES.
(C) POST AT ITS FACILITIES AND INSTALLATIONS COPIES OF THE ATTACHED
NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT
OF SUCH FORMS, THEY SHALL
BE SIGNED BY THE CHIEF OF STAFF AND SHALL BE POSTED AND MAINTAINED BY
HIM FOR 60 CONSECUTIVE
DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS
AND OTHER PLACES WHERE
NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE CHIEF OF STAFF
SHALL TAKE REASONABLE STEPS
TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY
ANY OTHER MATERIAL.
(D) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE THE
AUTHORITY IN WRITING,
WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS HAVE
BEEN TAKEN TO COMPLY
HEREWITH.
GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DATED: JANUARY 24, 1979
WASHINGTON, D.C.
APPENDIX
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED
LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT UNILATERALLY REFUSE TO SELECT AN ARBITRATOR AND PROCEED
TO ARBITRATION REGARDING A DISAGREEMENT CONCERNING THE INTERPRETATION OR
APPLICATION OF ARTICLE 21, SECTION 3 OF OUR SEPTEMBER 15, 1975
NEGOTIATED AGREEMENT WITH THE ASSOCIATION OF CIVILIAN TECHNICIANS, NEW
YORK COUNCIL, AFTER RECEIVING TIMELY NOTICE OF SAID LABOR ORGANIZATION'S
DESIRE TO INVOKE ARBITRATION.
WE WILL NOT REFUSE TO FURNISH, UPON REQUEST BY THE ASSOCIATION OF
CIVILIAN TECHNICIANS, NEW YORK COUNCIL, SUCH INFORMATION AS IS NECESSARY
AND RELEVANT TO ENABLE IT TO PERFORM ITS REPRESENTATIONAL DUTIES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS, ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL, UPON REQUEST, PROCEED TO ARBITRATION REGARDING A
DISAGREEMENT CONCERNING THE INTERPRETATION OR APPLICATION OF ARTICLE 21,
SECTION 3, OF OUR NEGOTIATED AGREEMENT WITH THE ASSOCIATION OF CIVILIAN
TECHNICIANS, NEW YORK COUNCIL.
WE WILL, UPON REQUEST BY THE ASSOCIATION OF CIVILIAN TECHNICIANS, NEW
YORK COUNCIL, FURNISH SUCH INFORMATION AS IS NECESSARY AND RELEVANT TO
ENABLE IT TO PERFORM ITS REPRESENTATIONAL DUTIES.
(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, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
ROOM 211, NEW STUDIO BUILDING, 110 TREMONT STREET, BOSTON, MA 02108.
/1/THE ADMINISTRATIVE LAW JUDGE, AT PAGE 9 OF HIS RECOMMENDED
DECISION AND ORDER, STATED, INADVERTENTLY, THAT THE RESPONDENT'S REFUSAL
TO PROCEED TO ARBITRATION OCCURRED ON JUNE 18, 1977. THE MEETING IN
QUESTION TOOK PLACE ON MAY 18, 1977. THIS INADVERTENCE IS HEREBY
CORRECTED.
/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/ THE AGREEMENT PROVIDED THAT ON WRITTEN REQUEST OF EITHER PARTY,
"THE PARTIES SHALL MEET TO COMMENCE NEGOTIATIONS ON A NEW AGREEMENT NOT
EARLIER THAN THE 60TH DAY PRIOR TO THE EXPIRATION DATE OF THIS
AGREEMENT." (JOINT EX. 1, P. 25).