[ v01 p836 ]
01:0836(97)CA
The decision of the Authority follows:
1 FLRA No. 97
78TH DIVISION (TRAINING),
KILMER USAR CENTER,
EDISON, NEW JERSEY
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2807, AFL-CIO
Complainant
Assistant Secretary
Case No. 32-5175(CA)
DECISION AND ORDER
ON JANUARY 2, 1979, ADMINISTRATIVE LAW JUDGE ROBERT L. RAMSEY ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN CONDUCT PERTAINING TO
THE ESTABLISHMENT OF PERFORMANCE STANDARDS FOR UNIT EMPLOYEES WHICH WAS
VIOLATIVE OF SECTION 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS
AMENDED 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. THE ADMINISTRATIVE LAW
JUDGE FURTHER FOUND THAT OTHER CONDUCT OF THE RESPONDENT PERTAINING TO
THE ISSUANCE OF OPERATION PLAN R1-77 WAS NOT VIOLATIVE OF SECTION
19(A)(1) AND (6) OF THE ORDER AND RECOMMENDED DISMISSAL OF THAT PORTION
OF THE COMPLAINT. THERE WERE NO EXCEPTIONS FILED 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 THIS
CASE, AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE AUTHORITY
HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS, ONLY TO THE EXTENT CONSISTENT HEREWITH. /1/
THE COMPLAINT HEREIN ALLEGED, IN ESSENCE, THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY FAILING TO MEET AND
CONFER WITH THE COMPLAINANT PRIOR TO THE ESTABLISHMENT OF "PERFORMANCE
STANDARDS" FOR UNIT EMPLOYEES AND BY SIMILARLY FAILING TO MEET AND
CONFER PRIOR TO THE ESTABLISHMENT OF OPERATION PLAN R1-77 WHICH, THE
COMPLAINANT ARGUED, AFFECTED THE WORKING CONDITIONS OF UNIT EMPLOYEES.
WITH RESPECT TO "PERFORMANCE STANDARDS," THE ADMINISTRATIVE LAW JUDGE
FOUND THAT, WHILE THERE WAS NO OBLIGATION ON THE PART OF THE RESPONDENT
TO MEET AND CONFER WITH THE COMPLAINANT, THERE DID EXIST AN OBLIGATION
TO MEET AND CONFER WITH AFFECTED UNIT EMPLOYEES PRIOR TO THE
ESTABLISHMENT OF THE STANDARDS. HAVING FOUND THAT THE RESPONDENT FAILED
TO FULFILL SUCH BARGAINING OBLIGATION, THE ADMINISTRATIVE LAW JUDGE
CONCLUDED THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE
ORDER.
AN EXAMINATION OF THE RECORD REVEALS THAT THE "PERFORMANCE STANDARDS"
AS THEY ARE REFERRED TO BY THE PARTIES AND THE ADMINISTRATIVE LAW JUDGE,
ARE, IN ACTUALITY, GUIDELINES FOR USE BY UNIT EMPLOYEES IN PERFORMING
THEIR ASSIGNED DUTIES. MORE SPECIFICALLY, THE "PERFORMANCE STANDARDS"
OUTLINED THE METHODS BY WHICH THE PARTICULAR JOB WAS TO BE PERFORMED.
/2/
IN THE AUTHORITY'S VIEW THOSE "STANDARDS" IN ISSUE HEREIN, CONSTITUTE
A "METHOD" WITHIN THE MEANING OF SECTION 12(B)(5) /3/ OF THE ORDER
RATHER THAN A MEASURE OF INDIVIDUAL PRODUCTIVITY ENCOMPASSED BY SECTION
11(A) OF THE ORDER. /4/ WHILE THESE STANDARDS CAN AFFECT AND HAVE AN
IMPACT ON THE PERSONNEL POLICIES AND PRACTICES AND WORKING CONDITIONS OF
UNIT EMPLOYEES, THESE STANDARDS, TO THE EXTENT THAT THEY CONSTITUTE A
METHOD, FALL WITHIN THE AMBIT OF SECTION 12(B)(5) OF THE ORDER AND AS
SUCH, THE RESPONDENT HAS NO OBLIGATION TO BARGAIN OVER ITS DECISION
PERTAINING TO THEIR ESTABLISHMENT. NOTWITHSTANDING THE CONCLUSION THAT
THERE WAS NO OBLIGATION TO BARGAIN OVER THE DECISION REGARDING THE
METHODS BY WHICH A PARTICULAR JOB WAS TO BE PERFORMED, THERE REMAINED AN
OBLIGATION UNDER THE ORDER FOR THE RESPONDENT TO NOTIFY THE COMPLAINANT
AND AFFORD IT AN OPPORTUNITY TO REQUEST BARGAINING ON THE IMPLEMENTATION
OF THE DECISION AND ITS IMPACT ON UNIT EMPLOYEES. /5/ THE RECORD
REVEALS THAT NO SUCH NOTIFICATION WAS GIVEN BY THE RESPONDENT TO THE
COMPLAINANT. ACCORDINGLY, THE RESPONDENT'S CONDUCT IN THIS REGARD IS
VIOLATIVE OF SECTION 19(A)(1) AND (6) OF THE ORDER.
WITH REGARD TO THE SECOND ALLEGATION OF THE COMPLAINT, THAT
PERTAINING TO THE ISSUANCE OF OPERATION PLAN R1-77, THE ADMINISTRATIVE
LAW JUDGE CONCLUDED ESSENTIALLY THAT THE RESPONDENT WAS NOT OBLIGATED TO
MEET AND CONFER WITH THE COMPLAINANT. NOTING THE ADMINISTRATIVE LAW
JUDGE'S FINDING THAT THE PLAN DID NOT EFFECT ANY CHANGES IN THE WORKING
CONDITIONS OF UNIT EMPLOYEES AND THAT THERE WAS NO EXCEPTION TO THIS
FINDING, THE AUTHORITY AGREES WITH THIS CONCLUSION. ACCORDINGLY, THE
AUTHORITY WILL ORDER THAT THIS ALLEGATION OF THE COMPLAINT BE DISMISSED.
ORDER
PURSUANT TO SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE 78TH DIVISION (TRAINING), KILMER USAR CENTER, EDISON, NEW
JERSEY, SHALL:
1. CEASE AND DESIST FROM:
(A) ESTABLISHING METHODS BY WHICH EMPLOYEE JOB FUNCTIONS ARE TO BE
PERFORMED WITHOUT NOTIFYING THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2807, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF ITS
EMPLOYEES, AND AFFORDING IT THE OPPORTUNITY TO MEET AND CONFER, TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS, CONCERNING THE IMPLEMENTATION
OF SUCH METHODS AND THEIR IMPACT ON ADVERSELY AFFECTED EMPLOYEES.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) UPON REQUEST, MEET AND CONFER WITH THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2807, AFL-CIO, TO THE EXTENT CONSONANT WITH
LAW AND REGULATIONS, CONCERNING THE PROCEDURES USED IN IMPLEMENTING
METHODS BY WHICH EMPLOYEE JOB FUNCTIONS ARE TO BE PERFORMED AND THE
IMPACT OF SUCH METHODS ON ADVERSELY AFFECTED EMPLOYEES.
(B) POST AT THE 78TH DIVISION (TRAINING), KILMER USAR CENTER
FACILITY, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE
FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF
SUCH FORMS THEY SHALL BE SIGNED BY THE COMMANDING OFFICER AND SHALL BE
POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN
CONSPICUOUS PLACES, INCLUDING BULLETIN BOARDS AND OTHER PLACES WHERE
NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDING OFFICER
SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) 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.
IT IS HEREBY FURTHER ORDERED THAT THE PORTION OF THE COMPLAINT FOUND
NOT TO BE VIOLATIVE OF THE EXECUTIVE ORDER BE, AND IT HEREBY IS,
DISMISSED.
ISSUED, WASHINGTON, D.C., AUGUST 15, 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 ESTABLISH METHODS BY WHICH EMPLOYEE JOB FUNCTIONS ARE TO
BE PERFORMED WITHOUT NOTIFYING THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2807, AFL-CIO, AND AFFORDING IT THE OPPORTUNITY TO MEET
AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, CONCERNING
THE IMPLEMENTATION OF SUCH METHODS AND THEIR IMPACT ON ADVERSELY
AFFECTED EMPLOYEES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL, UPON REQUEST BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2807, AFL-CIO, MEET AND CONFER, TO THE EXTENT CONSONANT
WITH LAW AND REGULATIONS, CONCERNING THE IMPLEMENTATION OF METHODS BY
WHICH EMPLOYEE JOB FUNCTIONS ARE TO BE PERFORMED AND THEIR IMPACT ON
ADVERSELY AFFECTED EMPLOYEES.
. . .
(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 FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: ROOM 1751, 26 FEDERAL PLAZA, NEW YORK, NEW YORK 10007, AND
WHOSE TELEPHONE NUMBER IS: (212) 399-5508.
LT. COL. RICHARD F. PLECHNER
ASSISTANT CHIEF OF STAFF
DEPARTMENT OF THE ARMY
78TH DIVISION (TRAINING)
KILMER USAR CENTER
EDISON, NEW JERSEY 08817
FOR THE RESPONDENT
MS. EILEEN ZIMBARDO
NATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES
LOCAL 2807 (AFL-CIO)
300 MAIN STREET
ORANGE, NEW JERSEY 07050
FOR THE COMPLAINANT
BEFORE: ROBERT L. RAMSEY
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
PRELIMINARY STATEMENT
THIS PROCEEDING WAS HEARD IN EDISON, NEW JERSEY, ON SEPTEMBER 26 AND
27, 1978, AND ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED. PURSUANT
TO THE REGULATIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS (HEREINAFTER CALLED THE "ASSISTANT
SECRETARY"), A NOTICE OF HEARING ON COMPLAINANT WAS ISSUED ON JULY 25,
1978. THIS WAS INITIATED BY A COMPLAINT (ALJ EXH. 1-B) FILED ON
SEPTEMBER 12, 1977 BY LOCAL 2807, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (AFL-CIO), HEREINAFTER REFERRED TO AS "THE UNION". IN IT'S
COMPLAINT, THE UNION ALLEGES THAT THE RESPONDENT VIOLATED SECTIONS
19(A)(1) AND (6) OF THE EXECUTIVE ORDER BASED ON FOUR SEPARATE CHARGES
(ATTACHMENT TO ALJ EXH. 1-B). BY LETTER DATED JUNE 12, 1978 (ALJ EXH.
1-D), CHARLES L. SMITH, REGIONAL ADMINISTRATOR, OFFICE OF THE ASSISTANT
SECRETARY FOR LABOR-MANAGEMENT RELATIONS, NEW YORK REGION, ADVISED THE
COMPLAINANT THAT THE THIRD AND FOURTH CHARGES SPECIFIED IN THE COMPLAINT
HAD NO REASONABLE BASIS AND WERE THEREFORE DISMISSED. THUS, THE
COMPLAINT WENT TO HEARING ALLEGING THAT THE RESPONDENT VIOLATED SECTIONS
19(A)(1) AND (6) BY ESTABLISHING AND PROMULGATING OPERATION PLAN R1-77
WITHOUT MEETING AND CONFERRING WITH THE UNION, AND BY ESTABLISHING AND
PROMULGATING PERFORMANCE STANDARDS FOR RECRUITING SPECIALISTS WITHOUT
MEETING AND CONFERRING WITH THE UNION.
AT THE HEARING, ALL PARTIES WERE REPRESENTED AND WERE AFFORDED AND
EXERCISED THE RIGHT TO MAKE AN OPENING STATEMENT, WITNESSES WERE CALLED
AND TESTIFIED UNDER OATH, EXHIBITS WERE OFFERED AND ADMITTED INTO
EVIDENCE, ALL PARTIES WERE GIVEN AND EXERCISED THE FULL RIGHT OF
EXAMINATION AND CROSS-EXAMINATION OF WITNESSES, AND COUNSEL FOR ALL
PARTIES WERE GIVEN AND EXERCISED THE OPPORTUNITY TO MAKE A CLOSING
ARGUMENT. IN ADDITION, BOTH PARTIES WERE AFFORDED, BUT WAIVED THE
OPPORTUNITY TO FILE A BRIEF.
ISSUES TO BE DETERMINED
BY LETTER DATED JULY 25, 1978 (ALJ EXH. 2) JOSEPH D. BREITBART,
ACTING REGIONAL ADMINISTRATOR, OFFICE OF THE ASSISTANT SECRETARY FOR
LABOR-MANAGEMENT RELATIONS, NEW YORK REGION, SET FORTH THE FOLLOWING
WHICH WERE ACCEPTED BY COUNSEL (TR. 13), AS BEING ISSUES TO BE RESOLVED
IN THIS CASE:
1. WAS THE ISSUANCE OF OPERATION PLAN R1-77 A MATTER ABOUT WHICH THE
RESPONDENT HAD AN OBLIGATION TO NEGOTIATE WITH THE COMPLAINANT?
2. IF SO, DID THE RESPONDENT AFFORD THE COMPLAINANT REASONABLE
OPPORTUNITY TO REQUEST NEGOTIATIONS?
3. WHETHER THERE WAS AN EMERGENCY SITUATION WHICH MIGHT REASONABLY
HAVE PREVENTED THE RESPONDENT FROM NOTIFYING THE COMPLAINANT OF THE
PROPOSED OPERATION PLAN R1-77.
4. WHETHER THE ISSUANCE OF OPERATION PLAN R1-77 CONSTITUTED A
UNILATERAL CHANGE IN THE TERMS AND CONDITIONS OF THE PARTIES' NEGOTIATED
AGREEMENT IN VIOLATION OF RIGHTS ASSURED BY THE ORDER.
5. DID THE APRIL 15, 1977 MEMO CONCERNING PERFORMANCE STANDARDS
REQUIRE NEGOTIATIONS WITH THE COMPLAINANT PRIOR TO ITS ISSUANCE?
6. IF THE SUBJECT MATTER OF THIS MEMO WAS PROPER FOR NEGOTIATIONS,
DID THE RESPONDENT AFFORD THE COMPLAINANT REASONABLE OPPORTUNITY TO
REQUEST NEGOTIATIONS?
7. WAS THE MATTER OF PERFORMANCE STANDARDS COVERED BY THE PARTIES'
EXPIRED NEGOTIATED AGREEMENT? IF SO, DID THE ISSUANCE OF THE APRIL 15,
1977 MEMORANDUM CONSTITUTE A UNILATERAL CHANGE IN A PRACTICE ESTABLISHED
BY THAT AGREEMENT, AND THUS VIOLATE RIGHTS ASSURED BY THE ORDER?
WITH RESPECT TO THE CHARGE THAT THE RESPONDENT ESTABLISHED AND
PROMULGATED OPERATION PLAN R1-77 WITHOUT MEETING AND CONFERRING WITH THE
UNION, THE RESPONDENTS' POSITION IS THAT: (A) OPERATION PLAN R1-77 DID
NOT CONTAIN ANY CHANGES IN WORKING CONDITIONS OF THE RECRUITING
SPECIALIST (RECRUITING BEING THE SUBJECT OF OPERATION PLAN R1-77) AND
THAT WHILE THE PLAN AFFECTED RECRUITING AND THE OPERATIONS OF THE
RECRUITING OFFICE, NO CHANGES IN WORKING CONDITIONS WITHIN THE MEANING
OF THE CONTRACT WERE INCLUDED IN OPERATION PLAN R1-77; (B) THAT NO
NOTICE TO THE UNION CONCERNING THE PROMULGATION AND IMPLEMENTATION OF
OPERATION PLAN R1-77 WAS POSSIBLE DUE TO THE FACT THAT AN EMERGENCY
EXISTED AND OPERATION PLAN R1-77 WAS PROMULGATED AND IMPLEMENTATED IN
RESPONSE TO AND AS A RESULT OF, THAT EMERGENCY; AND (C) THAT UPON
RECEIPT OF A PROTEST FROM THE UNION, THE RESPONDENT, THOUGH NOT REQUIRED
TO DO SO, MET WITH REPRESENTATIVES OF THE UNION, AND AFTER EXPLAINING
THE EMERGENCY BASIS OF THE PLAN, OFFERED TO MEET AND CONFER WITH REGARD
TO THE PLAN AND ITS IMPLEMENTATION, HOWEVER, THE UNION DID NOT REQUEST
ANY MEETINGS WITH THE RESPONDENT TO DISCUSS OPERATION PLAN R1-77 AND ITS
IMPLEMENTATION.
WITH RESPECT TO THE CHARGE THAT THE RESPONDENT ESTABLISHED AND
PROMULGATED PERFORMANCE STANDARDS FOR RECRUITING SPECIALISTS WITHOUT
MEETING AND CONFERRING WITH THE UNION, IT IS THE RESPONDENT'S POSITION
THAT THE PROMULGATION OF SUCH STANDARDS IS NOT NEGOTIABLE AND IS A RIGHT
RESERVED TO MANAGEMENT UNDER EXECUTIVE ORDER 11491, AS AMENDED.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, FROM MY
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, AND FROM A REVIEW OF
ALL THE TESTIMONY AND EVIDENCE ADDUCED AT THE HEARING, I MAKE THE
FOLLOWING FINDINGS, CONCLUSIONS AND RECOMMENDATION.
FINDINGS OF FACT
BACKGROUND
AT ALL TIMES MATERIAL TO THIS CONTROVERSY, THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2807 (AFL-CIO) WAS THE EXCLUSIVE
REPRESENTATIVE OF ALL NON-SUPERVISORY, NON-PROFESSIONAL ARMY RESERVE
TECHNICIANS, INCLUDING ORGANIZATIONAL MAINTENANCE TECHNICIANS, UNDER THE
JURISDICTION OF THE 79TH U.S. ARMY RESERVE COMMAND AND THE 78TH DIVISION
(TRAINING), EMPLOYED IN THE STATE OF NEW JERSEY.
ON MAY 24, 1973, THE DIRECTOR OF CIVILIAN PERSONNEL, DEPARTMENT OF
THE ARMY APPROVED A NEGOTIATED AGREEMENT BETWEEN THE 79TH UNITED STATES
ARMY RESERVE COMMAND, COLMAR, PENNSYLVANIA AND THE 78TH DIVISION
(TRAINING), EDISON, NEW JERSEY AND LOCAL 2807, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES (AFL-CIO). IN ADDITION TO THE BASIC AGREEMENT, A
SUPPLEMENT TO THE AGREEMENT (PERTAINING TO WITHHOLDING OF UNION DUES
WHICH SUBJECT IS NOT PERTINENT TO THIS PROCEEDING) WAS EXECUTED ON THE
SAME DATE BETWEEN THE PARTIES. BY THE TERMS OF THE AGREEMENT, THE
AGREEMENT AND ANY SUPPLEMENTS AND AMENDMENTS THERETO WERE TO BE
EFFECTIVE FOR A PERIOD OF TWO YEARS FROM THE DATE OF APPROVAL BY THE
DIRECTOR OF CIVILIAN PERSONNEL, DEPARTMENT OF THE ARMY (MAY 24, 1973)
AND WERE TO BE AUTOMATICALLY EXTENDED FOR SUCCESSIVE TWO (2) YEAR
PERIODS THEREAFTER UNLESS EITHER PARTY GAVE WRITTEN NOTICE TO THE OTHER
BETWEEN THE 90TH AND 60TH DAY PRIOR TO THE EXPIRATION DATE. FROM THE
STATEMENTS OF THE REPRESENTATIVES OF THE PARTIES TO THIS CONTROVERSY, IT
APPEARS THAT NOTICE WAS GIVEN BY ONE PARTY TO THE OTHER WITHIN THE 90-60
DAY REQUIREMENT, THUS THE AUTOMATIC TWO YEAR RENEWAL PROVISION DID NOT
BECOME EFFECTIVE, HOWEVER, IT FURTHER APPEARED THAT THE PARTIES AGREED
TO SEVERAL SHORT TERM EXTENSIONS OF THE AGREEMENT, THE LAST OF WHICH
EXTENSIONS EXPIRED SOME TIME PRIOR TO THE OCCURRENCES WHICH ARE THE
BASIS OF THE COMPLAINT HEREIN. IT IS THE UNION'S POSITION THAT WHILE
THE NEGOTIATED AGREEMENT BETWEEN THE PARTIES HAD EXPIRED AND WAS NOT IN
EFFECT AT THE TIME THE EVENTS GIVING RISE TO THE COMPLAINT OCCURRED, THE
PROVISIONS OF THE AGREEMENT, AS THEY RELATE TO THE AGREEMENT TO MEET AND
CONFER, ARE BINDING ON THE RESPONDENT AS PERSONNEL POLICIES AND PAST
PRACTICES WHICH COULD NOT BE UNILATERALLY CHANGED.
ON APRIL 8, 1977, GENERAL SMITH, THE 1ST ARMY COMMANDER, FORT GEORGE
MEADE, MARYLAND, CALLED A CONFERENCE WITH THE COMMANDING OFFICER AND
VARIOUS STAFF MEMBERS ASSIGNED TO THE RESPONDENT CONCERNING RECRUITING
PLANS. AT THAT TIME, THE RESPONDENT WAS NOT UP TO ITS AUTHORIZED
NUMERICAL STRENGTH AND GENERAL SMITH WAS APPARENTLY CONCERNED AND
OBVIOUSLY UNHAPPY WITH THIS STATE OF AFFAIRS. AT SOME POINT DURING THIS
MEETING, COLONEL MILTON BOGOLUB, A U.S. ARMY RESERVE OFFICER WHOSE
MILITARY OCCUPATION IS CHIEF OF STAFF OF THE RESPONDENT, AND WHO IS
EMPLOYED IN A CIVILIAN AS ADMINISTRATIVE ASSISTANT TO THE COMMANDING
GENERAL OF THE 78TH DIVISION, WAS DIRECTED BY GENERAL SMITH TO DRAW UP A
NEW RECRUITING PLAN FOR THE RESPONDENT DESIGNED TO INCREASE BOTH THE
NUMERICAL STRENGTH AND QUALITY OF THE RESPONDENT. COLONEL BOGOLUB
ADVISED GENERAL SMITH THAT HE WOULD DRAW UP SUCH A PLAN AND WOULD HAVE
IT ON THE GENERAL'S DESK WITHIN A WEEK OR SO, HOWEVER, GENERAL SMITH
ADVISED COLONEL BOGOLUB THAT HE EXPECTED THE NEW RECRUITING PLAN TO BE
ON HIS (GENERAL SMITH'S) DESK BY THE CLOSE OF BUSINESS THAT VERY SAME
DAY. FURTHER, COLONEL BOGOLUB WAS INSTRUCTED NOT TO LEAVE FORT MEADE
UNTIL SUCH TIME AS THE PLAN HAD BEEN SUBMITTED TO GENERAL SMITH.
COLONEL BOGOLUB THEN PREPARED THE DOCUMENT WHICH HAS BECOME KNOWN AS
OPERATION PLAN R1-77 (ENCLOSURE 5 TO ALJ EXH. 1-B). THIS PLAN DIFFERS
FROM PREVIOUS PLANS IN SEVERAL AREAS. FIRST, THE STATE OF NEW JERSEY
WAS, FOR ADMINISTRATIVE PURPOSES, DIVIDED INTO THREE REGIONS.
RECRUITING SPECIALISTS (A CIVIL SERVICE CLASSIFICATION) WITHIN EACH OF
THESE AREAS WERE PLACED, FOR ADMINISTRATIVE PURPOSES, UNDER A MILITARY
NON-COMMISSIONED OFFICER (NCO). THE IDENTIFICATION, CIVIL SERVICE
GRADE, CLASSIFICATION, PHYSICAL LOCATION AND DIRECT REPORTING LINES
(HIERARCHY) REMAINED UNCHANGED. A "TASK ORGANIZATION" CHART (ALJ EXH.
1-B, ENCLOSURE 5, ANNEX A) INDICATES UNDER THE HEADING "AUTH. STRENGTHS"
ONE RECRUITING OFFICER AT THE GS-10/11 LEVEL. UNDER PREVIOUS PLANS, THE
RECRUITING OFFICER POSITION WAS CLASSIFIED AS A GS-9.
OPERATION PLAN R1-77 (ALJ EXH. 1-B, ENCLOSURE 5, P. 4), WHICH IS
DATED APRIL 8, 1977, CONTAINS THE FOLLOWING INSTRUCTION:
"(1) THIS PLAN IS EFFECTIVE FOR PLANNING ON RECEIPT AND FOR EXECUTION
NOT LATER THAN 8 APRIL 1977. (2) THIS PLAN SUPERSEDES ALL RECRUITING
POLICIES. IN THE EVENT OF CONFLICTING INFORMATION, INSTRUCTIONS
CONTAINED IN THIS OPLAN PREVAIL." AT THE TIME OPERATION PLAN R1-77 WAS
PROMULGATED (APRIL 8, 1977), GENERAL SMITH INSTRUCTED COLONEL BOGOLUB
AND THE OTHER REPRESENTATIVES OF THE RESPONDENT PRESENT AT THE MEETING
WITH GENERAL SMITH, TO IMPLEMENT OPERATION PLAN R1-77 WITHIN ONE WEEK
(APRIL 15, 1977).
ON APRIL 15, 1977, CAPTAIN JAMES C. SANDEFER, RESPONDENT'S RECRUITING
OFFICER, ISSUED A DISPOSITION FORM (ENCLOSURE TO ALJ EXH 1-C) TO
RECRUITING SPECIALISTS CONCERNING PERFORMANCE STANDARDS DEVELOPED FOR
THE RECRUITING SPECIALISTS POSITION BY THE RESPONDENT. ON APRIL 25,
1977, IRVING I. SPIELMAN, A RECRUITING SPECIALIST ASSIGNED TO THE
RESPONDENT, WROTE CAPTAIN SANDEFER (ENCLOSURE 3 TO JOINT EXH. 1) AND
COMPLAINED ABOUT THE PERFORMANCE STANDARDS ISSUED ON APRIL 15, 1977, AND
ARGUED, INTER ALIA, THAT IN SETTING A JOB PERFORMANCE STANDARD, THE
REGULATIONS PERTAINING TO IT SHOULD HAVE BEEN FOLLOWED AS SET FORTH IN
IGMR REGULATION 690-6, AND FORSCOM PAMPHLET 690-3, AND SHOULD HAVE BEEN
PERSONALLY DISCUSSED AND MUTUALLY AGREED UPON BETWEEN HIM AND HIS
SUPERVISOR. ON MAY 10, 1977, MR. SPIELMAN CONTACTED A REPRESENTATIVE OF
THE RESPONDENT AND REQUESTED A "STEP I MEETING IN REGARDS TO MY LETTER
OF 25 APRIL 1977, TO CPT. SANDEFER." (ENCLOSURE 32, JOINT EXH. 1). AS
THE RESULT OF THIS MEETING CAPTAIN SANDEFER, ON MAY 20, 1977, ISSUED A
NOTICE TO RECRUITING SPECIALISTS (ENCLOSURE 4 TO JOINT EXH. 1)
RESCINDING THE PERFORMANCE STANDARDS DATED APRIL 15, 1977.
ISSUE NUMBER 1
WAS THE ISSUANCE OF OPERATION PLAN R1-77 A MATTER ABOUT WHICH THE
RESPONDENT HAD AN OBLIGATION TO NEGOTIATE WITH THE COMPLAINANT?
THIS ISSUE IS ANSWERED IN THE NEGATIVE. SECTION 12(B) OF EXECUTIVE
OF EXECUTIVE ORDER 11491 RESERVES TO MANAGEMENT, IN ACCORDANCE WITH
APPLICABLE LAWS AND REGULATIONS, THE RIGHT TO MAINTAIN THE EFFICIENCY OF
THE GOVERNMENT OPERATIONS ENTRUSTED TO THEM (SECTION 12(B)(4)) AND TO
DETERMINE THE METHODS, MEANS, AND PERSONNEL BY WHICH SUCH OPERATIONS ARE
TO BE CONDUCTED (SECTION 12(B)(5)). IN THE INSTANT CASE, AMONG THE
GOVERNMENT OPERATIONS ENTRUSTED TO THE RESPONDENT IS THE RESPONSIBILITY
TO PROVIDE AND MAINTAIN AT AS NEARLY FULL STRENGTH AS POSSIBLE, A
MILITARY RESERVE ORGANIZATION DESIGNED TO BE AN INTEGRAL PART OF THE
NATIONAL DEFENSE. SECTION 12(B)(5) OF EXECUTIVE ORDER 11491, AS NOTED
ABOVE, RESERVES TO MANAGEMENT THE RIGHT TO DETERMINE THE METHODS, MEANS
AND PERSONNEL BY WHICH SUCH OPERATIONS ARE TO BE CONDUCTED. CLEARLY,
OPERATION PLAN R1-77 IS NOTHING MORE THAN A VEHICLE BY WHICH A PORTION
OF THE GOVERNMENT OPERATIONS ENTRUSTED TO THE RESPONDENT WERE TO BE
CONDUCTED. THE ACTUAL AUTHOR OF OPERATION PLAN R1-77, COLONEL MILTON
BOGOLUB, TESTIFIED THAT THE PLAN WAS DRAWN UP BASICALLY AS A
MODIFICATION OF A PREVIOUS PLAN AND DEALT WITH THE RECRUITING POLICIES
OF THE ENTIRE DIVISION MADE UP OF MORE THAN 6,000 INDIVIDUALS, BOTH
MILITARY AND CIVILIAN, OF WHOM ONLY APPROXIMATELY 12 COULD REMOTELY BE
AFFECTED AS ALLEGED BY THE UNION. THE TECHNICIANS (RECRUITING
SPECIALISTS) WERE A VERY SMALL PERCENTAGE (DE MINIMUS) OF THE OVERALL
PERSONNEL INVOLVED IN THE PLAN AND THE DAY TO DAY WORKING CONDITIONS OF
NONE OF THESE WAS IN ANY WAY AFFECTED BY THE PLAN. NOT A SINGLE
TECHNICIAN WAS REQUIRED TO MOVE ANYWHERE AS A RESULT OF THE PLAN, ALL
TECHNICIANS CONTINUED TO WORK AT THE SAME DESK, IN THE SAME ROOM, IN THE
SAME BUILDING, FOR THE SAME SALARY AND IN THE SAME GRADES AS PREVIOUSLY.
ONLY ONE PORTION OF THE PLAN (SEE ALJ EXH. 1-B, ENCLOSURE 5, ANNEX A)
WHERE THE GRADE CLASSIFICATION OF RECRUITING OFFICER WAS SHOWN TO BE AT
THE GS-10/11 LEVEL WHERE PREVIOUSLY IT HAD BEEN CLASSIFIED AT THE GS-9
LEVEL COULD BE SAID TO BE A CHANGE.
ACCORDING TO THE UNION, INASMUCH AS ADVANCEMENT MAY BE NO MORE THAN
TWO GRADES AT ANY ONE TIME, THE POSITION OF RECRUITING OFFICER AT
GS-10/11 COULD NOT BE REACHED BY ANY RECRUITING SPECIALISTS WHO WERE
CLASSIFIED AT THE GS-7 LEVEL, THUS THE INABILITY TO ADVANCE FROM
RECRUITING SPECIALIST TO RECRUITING OFFICER UNDER THE NEW PLAN WAS A
CHANGE OF CONDITION OF EMPLOYMENT REQUIRING NEGOTIATION. THIS ARGUMENT
IS MORE ILLUSORY THAN REAL IN THAT COLONEL BOGOLUB'S UNCONTRADICTED
TESTIMONY ESTABLISHED THAT DESIGNATING THE RECRUITING OFFICER AT THE
GS-10/11 LEVEL WAS NOTHING MORE THAN A PROPOSAL OR PROJECTION IN THAT
THERE WAS NO CIVIL SERVICE AUTHORIZATION FOR A RECRUITING OFFICER AT
HIGHER THAN THE GS-9 LEVEL.
THE UNION FURTHER ARGUED THAT THE NAMING OF NON-COMMISSIONED OFFICERS
AS SUPERVISORS FOR THE RECRUITING SPECIALISTS CONSTITUTED A CHANGE IN
WORKING CONDITIONS WHICH OBLIGATED THE RESPONDENT TO NEGOTIATE. I
DISAGREE. AS COLONEL BOGOLUB TESTIFIED, THE STATE OF NEW JERSEY WAS
DIVIDED INTO THREE AREAS FOR THE PURPOSE OF COMMAND SUPERVISION AND EACH
AREA WAS PLACED UNDER THE COMMAND OF AN AREA COMMANDER. SUCH A DIVISION
OF THE GEOGRAPHICAL AREA OF RESPONSIBILITY OF THE RESPONDENT IN MY MIND
FALLS WITHIN THE PARAMETERS SET FORTH IN SECTION 12(B)(4) AND (5) OF
EXECUTIVE ORDER 11491. FURTHER, I KNOW OF NO DECISION, NOR HAS ANY BEEN
POINTED OUT TO ME BY THE UNION, WHICH REQUIRES NEGOTIATION AS TO THE
PERSON OF SUPERVISOR.
ISSUE NUMBER 2
IF THE ISSUANCE OF OPERATION PLAN R1-77 WAS A MATTER ABOUT WHICH THE
RESPONDENT HAD AN OBLIGATION TO NEGOTIATE WITH THE COMPLAINANT, DID THE
RESPONDENT AFFORD THE COMPLAINANT REASONABLE OPPORTUNITY TO REQUEST
NEGOTIATIONS?
INASMUCH AS I HAVE DETERMINED THAT THE RESPONDENT WAS UNDER NO
OBLIGATION TO NEGOTIATE WITH THE UNION CONCERNING THE ISSUANCE OF
OPERATION PLAN R1-77, THIS ISSUE IS MOOT.
ISSUE NUMBER 3
WAS THERE AN EMERGENCY SITUATION WHICH MIGHT REASONABLY HAVE
PREVENTED THE RESPONDENT FROM NOTIFYING THE COMPLAINANT OF THE PROPOSED
OPERATION PLAN R1-77?
ASSUMING, ARGUENDO, THAT THERE WAS AN OBLIGATION ON THE PART OF THE
RESPONDENT TO NEGOTIATE WITH THE UNION PRIOR TO THE ISSUANCE OF
OPERATION PLAN R1-77, I FIND THAT THERE WAS AN EMERGENCY SITUATION IN
REGARD TO THE ISSUANCE OF THIS PLAN WHICH REASONABLY PREVENTED THE
RESPONDENT FROM NEGOTIATING WITH THE UNION PRIOR TO THE ISSUANCE OF
OPERATION PLAN R1-77. AS INDICATED BY THE UNCONTRADICTED TESTIMONY OF
COLONEL BOGOLUB, GENERAL SMITH, THE FIRST ARMY COMMANDER, ON VERY SHORT
NOTICE, CALLED A MEETING OF THE RESPONDENT'S STAFF OFFICERS TO DISCUSS
DIVISION STRENGTH AND METHODS OF IMPROVING THE SAME. COLONEL BOGOLUB
TESTIFIED THAT GENERAL SMITH WAS VERY UNHAPPY AND DISPLEASED WITH THE
THEN EXISTING DIVISION STRENGTH AND THE THEN RECRUITING EFFORTS.
OBVIOUSLY, THIS DISPLEASURE WAS EVIDENCED BY GENERAL SMITH'S INSISTENCE
THAT A NEW OPERATIONS PLAN BE PROMULGATED INSTANTER. THIS DISPLEASURE
IS FURTHER EVIDENCED BY GENERAL SMITH'S FORBIDDING THOSE RESPONSIBLE FOR
DRAFTING THE NEW PLAN FROM LEAVING THE PREMISES UNTIL SUCH TIME AS THE
PLAN WAS PROMULGATED. REALISTICALLY, THIS EFFECTIVELY PRECLUDED ANY
OPPORTUNITY TO MEET AND CONFER WITH THE UNION PRIOR TO THE ISSUANCE OF
OPERATION PLAN R1-77.
EVEN IF THE RESPONDENT HAD AN OBLIGATION TO MEET AND CONFER WITH THE
UNION CONCERNING THE ISSUANCE OF OPERATION PLAN R1-77 AND HAD BEEN, BY
REASON OF THE EVENTS WHICH TRANSPIRED AT THE MEETING WITH GENERAL SMITH,
PREVENTED FROM ENGAGING IN PRIOR NEGOTIATION, THE RESPONDENT WOULD HAVE
FULFILLED ANY OBLIGATION WHICH IT HAD TO MEET AND CONFER BY RESPONDING
TO THE UNION'S LETTER OF MAY 17, 1977 AND MEETING WITH UNION
REPRESENTATIVES ON JULY 20, 1977 TO DISCUSS OPERATION PLAN R1-77.
ISSUE NUMBER 4
DID THE ISSUANCE OF OPERATION PLAN R1-77 CONSTITUTE A UNILATERAL
CHANGE IN THE TERMS AND CONDITIONS OF THE PARTIES' NEGOTIATED AGREEMENT
IN VIOLATION OF RIGHTS ASSURED BY EXECUTIVE ORDER 11491?
THIS ISSUE MUST ALSO BE ANSWERED IN THE NEGATIVE. AS NOTED ABOVE, I
AM OF THE OPINION THAT OPERATION PLAN R1-77 FELL WITHIN THAT CATEGORY OF
ACTION ON WHICH NO NEGOTIATION WAS REQUIRED UNDER THE PROVISIONS OF
SECTION 12(B)(4) AND (5) OF EXECUTIVE ORDER 11491. EACH OF THE RIGHTS
RESERVED TO MANAGEMENT IN SECTION 12(B) OF EXECUTIVE ORDER 11491 WAS
REITERATED VERBATIM IN ARTICLE III, SECTION 2 OF THE NEGOTIATED
AGREEMENT (JOINT EXH. 1). THERE CAN BE NO QUESTION THAT THE RESPONDENT
INTENDED, AT THE TIME THE NEGOTIATED AGREEMENT WAS ENTERED INTO, TO
RETAIN EACH AND EVERY RIGHT WHICH WAS RESERVED TO IT BY SECTION 12(B) OF
EXECUTIVE ORDER 11491 AND DID NOT INTEND TO SURRENDER ANY OF SAID RIGHTS
OR TO MAKE THE SAME SUBJECT TO NEGOTIATION. INASMUCH AS THE ISSUANCE OF
OPERATION PLAN R1-77 WAS THE EXERCISE OF A RIGHT RESERVED TO THE
RESPONDENT UNDER SECTION 12(B)(4) AND (5) OF EXECUTIVE ORDER 11491 AND
ARTICLE III, SECTION 2(4) AND (5) OF THE NEGOTIATED AGREEMENT, THE
ISSUANCE OF OPERATION PLAN R1-77 COULD NOT AND DID NOT CONSTITUTE A
UNILATERAL CHANGE IN THE TERMS AND CONDITIONS OF THE NEGOTIATED
AGREEMENT IN VIOLATION OF THE RIGHTS ASSURED BY EXECUTIVE ORDER 11491.
ISSUE NUMBER 5
DID THE APRIL 15, 1977 MEMO CONCERNING PERFORMANCE STANDARDS REQUIRE
NEGOTIATIONS WITH THE COMPLAINANT PRIOR TO ITS ISSUANCE?
THIS ISSUE IS ANSWERED IN THE NEGATIVE.
ARTICLE V, SECTION 10 OF THE NEGOTIATED AGREEMENT (JOINT EXH. 1)
PROVIDES:
STANDARDS OF PERFORMANCE ARE ESTABLISHED IN ACCORDANCE WITH
APPLICABLE REGULATIONS. WHEN SUCH STANDARDS OF PERFORMANCE ARE TO BE
ESTABLISHED, THE EMPLOYER WILL CONSULT WITH THE EMPLOYEE.
THE UNION ARGUES THAT PRIOR TO ISSUING THE MEMORANDUM OF APRIL 15,
1977 CONCERNING PERFORMANCE STANDARDS, THE EMPLOYER WAS OBLIGATED TO
NEGOTIATE WITH THE UNION. THE RESPONDENT, ON THE OTHER HAND, ALLEGES
THAT SINCE THE PERFORMANCE STANDARDS CONTAINED IN THE APRIL 15, 1977
MEMO WERE PROMULGATED PURSUANT TO IGMR REGULATION 690-6 (RESPONDENT'S
EXH. 9) AND FORSCOM PAMPHLET 690-3 (REFERRED TO IN RESPONDENT'S EXHS. 7
AND 8), AND THE COVER LETTER TO THE APRIL 15, 1977 MEMO (ALJ EXH. 1-B,
ENCLOSURE 7) WHICH WAS ADDRESSED TO ALL RECRUITING SPECIALISTS CONTAINED
THE FOLLOWING:
2. YOU ARE DIRECTED TO READ THE ATTACHED CAREFULLY. YOU MAY DISCUSS
ANY QUESTIONS,
COMMENTS, SUGGESTIONS, OBJECTIONS, ETC. I WILL BE OPEN FOR
DISCUSSION AT THE NEXT RECRUITER'S
MEETING OR YOU MAY CONTACT ME DIRECTLY IF YOU DESIRE TO DISCUSS THEM
IMMEDIATELY." (THE MEMO
WAS SIGNED BY CAPTAIN JAMES C. SANDEFER, RECRUITING OFFICER)
THE RESPONDENT HAD MET ANY OBLIGATION IT HAD TO DISCUSS THE
PERFORMANCE STANDARDS ATTACHED TO THE MEMO. FURTHER, THE RESPONDENT
ARGUES THAT ARTICLE V, SECTION 10 OF THE NEGOTIATED AGREEMENT DIRECTS
THAT ANY CONSULTATION WILL BE WITH THE EMPLOYEE, THUS THERE WAS NO
OBLIGATION TO MEET AND CONSULT WITH THE UNION. I AGREE WITH THIS
CONCLUSION, BUT FEEL THAT THE REASON SHOULD BE EXPLAINED. WHILE IT IS
TRUE THAT ARTICLE V, SECTION 10 DIRECTS THAT CONSULTATION WILL BE HAD
WITH THE EMPLOYEE, THIS PROVISION CANNOT BE READ IN ISOLATION, BUT MUST
BE READ IN THE CONTEXT OF THE ENTIRE AGREEMENT. UNDER ARTICLE I,
SECTION 1, THE EMPLOYER (THE RESPONDENT HEREIN) RECOGNIZES THE UNION AS
THE EXCLUSIVE REPRESENTATIVE OF ALL EMPLOYEES IN THE UNIT . . . "WITH
RESPECT TO GRIEVANCES, PERSONAL POLICIES, PRACTICES AND PROCEDURES, OR
OTHER MATTERS AFFECTING THEIR GENERAL WORKING CONDITIONS." ARTICLE V,
SECTION 9 PROHIBITS THE RESPONDENTS FROM QUESTIONING OR CANVASSING
EMPLOYEES IN THE UNIT IN REGARD TO ANY MATTER SUBJECT TO NEGOTIATIONS OR
CONSULTATION UNLESS SUCH EMPLOYEES HAVE BEEN DULY AUTHORIZED BY THE
UNION TO ACT AS SPOKESMAN IN REGARD TO SUCH DISCUSSIONS. THUS, UNLESS
ARTICLE V, SECTION 10 OVERRIDES ARTICLE I, SECTION 1 AND THE GENERAL
PROHIBITION CONTAINED IN ARTICLE V, SECTION 9, THE COMPLAINANT MUST BE
CONSULTED PRIOR TO ISSUANCE OF PERFORMANCE STANDARDS. IN MY VIEW, THE
PROVISION OF ARTICLE V, SECTION 10, DIRECTING THAT "WHEN STANDARDS OF
PERFORMANCE ARE TO BE ESTABLISHED, THE EMPLOYER WILL CONSULT WITH THE
EMPLOYEE" IS TO BE INTERPRETED AS AUTHORIZING DISCUSSION WITH THE
AFFECTED EMPLOYEE IN REGARD TO SUCH MATTERS WITHIN THE MEANING OF
ARTICLE V, SECTION 9. THUS, IN MY VIEW, THERE WAS NO OBLIGATION FOR THE
RESPONDENT TO NEGOTIATE WITH THE COMPLAINANT (THE UNION) PRIOR TO THE
ISSUANCE OF THE APRIL 15, 1977 MEMO.
ISSUE NUMBER 6
IF THE APRIL 15, 1977 MEMO CONCERNING PERFORMANCE STANDARDS REQUIRED
NEGOTIATIONS WITH THE UNION PRIOR TO ITS ISSUANCE, DID THE RESPONDENT
AFFORD THE COMPLAINANT REASONABLE OPPORTUNITY TO REQUEST NEGOTIATIONS?
INASMUCH AS I HAVE DETERMINED THAT THERE WAS NO OBLIGATION ON THE
PART OF THE RESPONDENT TO NEGOTIATE WITH THE UNION PRIOR TO THE ISSUANCE
OF THE APRIL 15, 1977 MEMO, THIS QUESTION IS MOOT.
ISSUE NUMBER 7
WAS THE MATTER OF PERFORMANCE STANDARDS COVERED BY THE PARTIES'
EXPIRED NEGOTIATED AGREEMENT? IF SO, DID THE ISSUANCE OF THE APRIL 15,
1977 MEMORANDUM CONSTITUTE A UNILATERAL CHANGE IN A PRACTICE ESTABLISHED
BY THAT AGREEMENT, AND THUS VIOLATE RIGHTS ASSURED BY THE ORDER?
BOTH QUESTIONS CONTAINED WITHIN THE STATEMENT OF THIS PARTICULAR
ISSUE MUST BE ANSWERED IN THE AFFIRMATIVE.
ARTICLE V, SECTION 10, STATES IN PART,: "STANDARDS OF PERFORMANCE
ARE ESTABLISHED IN ACCORDANCE WITH APPLICABLE REGULATIONS." THERE CAN BE
NO ARGUMENT THAT THE PERFORMANCE STANDARDS FOR RECRUITING SPECIALISTS
ATTACHED TO THE APRIL 15, 1977 MEMORANDUM TO RECRUITING SPECIALISTS FROM
CAPTAIN SANDEFER WERE AUTHORIZED AND IN CONFORMITY WITH BOTH IGMR
REGULATION 690-6 AND FORSCOM PAMPHLET 690-3, HOWEVER, A CLOSE
EXAMINATION OF ARTICLE V, SECTION 10 OF THE NEGOTIATED AGREEMENT (JOINT
EXH. 1) INDICATES THAT "WHEN SUCH STANDARDS OF PERFORMANCE ARE TO BE
ESTABLISHED, THE EMPLOYER WILL CONSULT WITH THE EMPLOYER." BY SPEAKING
IN THE FUTURE TENSE, IT APPEARS THAT IT WAS INTENDED BY THE PARTIES TO
THE NEGOTIATED AGREEMENT THAT THE EMPLOYER WOULD CONSULT WITH THE
EMPLOYEE PRIOR TO THE ESTABLISHMENT OF PERFORMANCE STANDARDS. HERE, IT
IS ADMITTED THAT SUCH PRIOR CONSULTATION DID NOT OCCUR, BUT IT IS ARGUED
THAT CONSULTATION AFTER PROMULGATION WAS INVITED, THUS THE REQUIREMENTS
TO MEET AND CONFER WERE SATISFIED. I CANNOT AGREE WITH THIS CONTENTION.
WHILE IT IS TRUE THAT THE CONSULTATION WHICH TOOK PLACE SUBSEQUENT TO
THE PROMULGATION OF THE PERFORMANCE STANDARDS RESULTED IN THE SAME BEING
RESCINDED BY MEMO DATED MAY 20, 1977 (JOINT EXH. 1, ENCLOSURE 4), THIS
DOES NOT CURE THE OVERSIGHT ON THE PART OF THE RESPONDENT.
TO SUSTAIN A CHARGE OF UNFAIR LABOR PRACTICE(S), IT IS NOT NECESSARY
FOR A COMPLAINANT TO ALLEGE AND PROVE BAD FAITH ON THE PART OF THE
RESPONDENT. IT IS SUFFICIENT THAT THE COMPLAINANT PROVE EITHER A
VIOLATION OF THE EXECUTIVE ORDER OR OF THE AGREEMENT NEGOTIATED BETWEEN
THE PARTIES. HERE, THE PARTIES HAD NEGOTIATED A PROVISION (ARTICLE V,
SECTION 10) REQUIRING CONSULTATION PRIOR TO THE ESTABLISHMENT OF
PERFORMANCE STANDARDS. AS A RESULT, THIS PROVISION BECAME A PERSONNEL
POLICY AND PRACTICE WHICH CONTINUED AFTER THE EXPIRATION OF THE
AGREEMENT UNTIL SUCH TIME AS A NEW AGREEMENT ON THE SAME SUBJECT MATTER
WAS NEGOTIATED, WHICH, ADMITTEDLY IN THIS CASE, WAS SUBSEQUENT TO THE
ACTS COMPLAINED OF IN THE COMPLAINT. BY FAILING TO COMPLY WITH THIS
PERSONNEL POLICY AND PAST PRACTICE BEFORE ISSUING THE PERFORMANCE
STANDARDS FOR RECRUITING SPECIALISTS, THE RESPONDENT COMMITTED AN UNFAIR
LABOR PRACTICE.
CONCLUSIONS
1. THE RESPONDENT DID NOT COMMIT AN UNFAIR LABOR PRACTICE WHEN IT
ESTABLISHED OPERATION PLAN R1-77 WITHOUT FIRST MEETING AND CONFERRING
WITH THE COMPLAINANT.
2. THE RESPONDENT COMMITTED AN UNFAIR LABOR PRACTICE WHEN IT
PROMULGATED PERFORMANCE STANDARDS FOR RECRUITING SPECIALISTS WITHOUT
MEETING AND CONFERRING OR OFFERING TO MEET AND CONFER WITH THE
RECRUITING SPECIALISTS PRIOR TO THE ESTABLISHMENT OF SUCH PERFORMANCE
STANDARDS.
RECOMMENDATION
UPON THE BASIS OF THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF
LAW AND PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED,
AND SECTION 203.26(B) OF THE RULES AND REGULATIONS, I RECOMMEND THAT
CHARGE NUMBER 1 AS CONTAINED IN THE COMPLAINT HEREIN BE DISMISSED. I
FURTHER RECOMMEND THAT THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS ADOPT THE FOLLOWING ORDER DESIGNED TO
EFFECTUATE THE POLICIES OF THE ORDER.
RECOMMENDED ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE RULES AND REGULATIONS, THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE 78TH
DIVISION (TRAINING) KILMER USAR CENTER, EDISON, NEW JERSEY SHALL:
1. CEASE AND DESIST FROM:
(A) ESTABLISHING AND ISSUING PERFORMANCE STANDARDS FOR RECRUITING
SPECIALISTS WITHOUT FIRST MEETING AND CONFERRING OR OFFERING TO MEET AND
CONFER WITH SUCH EMPLOYEES AS MAY BE AFFECTED BY THE ESTABLISHMENT OF
SUCH PERFORMANCE STANDARDS.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS GUARANTEED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE EXECUTIVE ORDER:
(A) POST AT THE 78TH DIVISION (TRAINING) FACILITY, KILMER USAR
CENTER, EDISON, NEW JERSEY, COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY FOR
LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE
SIGNED BY THE COMMANDING OFFICER OF THE 78TH DIVISION (TRAINING), AND
THEY SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDING OFFICER SHALL TAKE
REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED OR
COVERED BY OTHER MATERIAL.
(B) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ROBERT L. RAMSEY
ADMINISTRATIVE LAW JUDGE
DATED: JAN 2 1979
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS 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:
THE 78TH DIVISION (TRAINING) WILL NOT PROMULGATE OR ISSUE PERFORMANCE
STANDARDS FOR RECRUITING SPECIALISTS WITHOUT FIRST MEETING AND
CONFERRING OR OFFERING TO MEET AND CONFER WITH SUCH INDIVIDUALS AS MAY
BE AFFECTED BY THE PROPOSED PERFORMANCE STANDARDS.
THE 78TH DIVISION (TRAINING) WILL NOT IN ANY LIKE OR RELATED MANNER
INTERFERE WITH, RESTRAIN OR COERCE ITS EMPLOYEES IN THE EXERCISE OF
RIGHTS GUARANTEED BY EXECUTIVE ORDER 11491, AS AMENDED.
78TH DIVISION (TRAINING)
KILMER USAR CENTER
EDISON, NEW JERSEY
DATED: . . . BY: . . .
(SIGNATURE)
. . .
(TITLE)
THIS NOTICE MUST REMAIN POSTED FOR SIXTY (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 ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, NEW YORK
REGIONAL OFFICE, SUITE 3515, 1515 BROADWAY, NEW YORK, NEW YORK 10036.
/1/ 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 OF 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.
/2/ SUCH METHODS AMONG OTHERS INCLUDE CONDUCTING INFORMATIONAL
CAMPAIGNS AND PROSPECTING AND CANVASSING FOR PROSPECTIVE ENLISTEES INTO
THE UNITED STATES ARMY RESERVE, WHICH FUNCTION CONSTITUTES THE PRINCIPAL
DUTY OF UNIT EMPLOYEES.
/3/ SECTION 12(B) OF THE ORDER PROVIDES:
SEC. 12. BASIC PROVISIONS OF AGREEMENTS. EACH AGREEMENT BETWEEN AN
AGENCY AND A LABOR
ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
. . . .
(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
ACCORDANCE WITH APPLICABLE LAWS
AND REGULATIONS--
. . . .
(5) TO DETERMINE THE METHODS, MEANS, AND PERSONNEL BY WHICH SUCH
OPERATIONS ARE TO BE
CONDUCTED; . . .
/4/ THE TERM "METHODS" AS IT APPEARS IN SECTION 12(B)(5) OF THE ORDER
HAS BEEN DEFINED BY THE COUNCIL TO MEAN "THE PROCEDURES, PROCESSES,
WAYS, TECHNIQUES, MODES, MANNERS AND SYSTEMS BY WHICH OPERATIONS ARE TO
BE CONDUCTED-- IN SHORT, HOW OPERATIONS ARE TO BE CONDUCTED." SEE
TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL AND NAVAL
PUBLIC WORKS CENTER, NORFOLK, VIRGINIA, 1 FLRC 431, AT PAGE 436, FLRC
71A-56 (JUNE 29, 1973). CF. PATENT OFFICE PROFESSIONAL ASSOCIATION AND
U.S. PATENT OFFICE, WASHINGTON, D.C., 3 FLRC 635, FLRC 75A-13 (OCTOBER
3, 1975), IN WHICH THE FEDERAL LABOR RELATIONS COUNCIL FOUND NEGOTIABLE
UNDER SECTION 11(A) OF THE ORDER A PROPOSAL RELATING TO "PRODUCTION
GOALS," WHICH WERE USED TO MEASURE INDIVIDUAL PRODUCTIVITY FOR THE
PURPOSE OF ASSESSING EMPLOYEE PERFORMANCE.
/5/ FEDERAL RAILROAD ADMINISTRATION, 4 A/SLMR 497, A/SLMR 418(1974).