[ v04 p534 ]
04:0534(73)CA
The decision of the Authority follows:
4 FLRA No. 73
KENTUCKY NATIONAL GUARD
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-100
Charging Party
Case No. 4-CA-85
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD
ENGAGED IN CERTAIN UNFAIR, LABOR PRACTICES UNDER EXECUTIVE ORDER 11491,
AS AMENDED, AND THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
(92 STAT. 1215), AND RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND
TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN THE ATTACHED
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER. THE
ADMINISTRATIVE LAW JUDGE FOUND FURTHER THAT THE RESPONDENT HAD NOT
ENGAGED IN CERTAIN OTHER UNFAIR LABOR PRACTICES UNDER THE STATUTE
ALLEGED IN THE COMPLAINT, AND RECOMMENDED THE DISMISSAL OF THAT PORTION
OF THE COMPLAINT. THEREAFTER, THE GENERAL COUNSEL AND THE RESPONDENT
FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION
AND ORDER AND SUPPORTING BRIEFS.
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 2423.1 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.1). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
STATUTE.
THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2423.29) AND SECTIONS 7118 AND 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, INCLUDING EXCEPTIONS AND SUPPORTING BRIEFS OF THE
GENERAL COUNSEL AND THE RESPONDENT, THE AUTHORITY HEREBY ADOPTS THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, AS
MODIFIED HEREIN.
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTIONS 7118 AND 7135(B) OF THE
STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE KENTUCKY NATIONAL GUARD,
SHALL:
1. CEASE AND DESIST FROM:
A) MAKING STATEMENTS OR COMMENTS, BY THE ADJUTANT GENERAL OR ANY
OTHER AGENT, OFFICER OR REPRESENTATIVE OF THE RESPONDENT, TO MEMBERS OF
THE NEGOTIATING TEAM OF LOCAL R5-100, NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, OR ANY OTHER EMPLOYEE IN THE BARGAINING UNIT, THAT THE
WEARING OF CIVILIAN ATTIRE IN THE DAY-TO-DAY PERFORMANCE OF TECHNICIAN
DUTIES IS NOT IN THEIR BEST INTEREST OR IN THE BEST INTEREST OF THE
TECHNICIAN PROGRAM, THAT THE UNIFORM ISSUE WILL DESTROY THE NATIONAL
GUARD, THAT THE ADJUTANT GENERAL WILL DO ANYTHING TO KEEP THE EMPLOYEES
IN UNIFORM, OR ANY OTHER STATEMENT OR COMMENT WHICH WOULD INTERFERE
WITH, RESTRAIN, OR COERCE ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS
ASSURED BY EXECUTIVE ORDER 11491, AS AMENDED.
B) REFUSING TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-100, THE EXCLUSIVE
REPRESENTATIVE OF CERTAIN OF ITS EMPLOYEES CONCERNING THE OPTION OF
EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN DUTIES, TO WEAR
THE MILITARY UNIFORM OR AN AGREED-UPON CIVILIAN ATTIRE PURSUANT TO THE
DECISION AND ORDER OF THE FEDERAL SERVICE IMPASSES PANEL DATED AUGUST
22, 1978.
C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
D) REFUSING TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-100, THE EXCLUSIVE
REPRESENTATIVE OF CERTAIN OF ITS EMPLOYEES, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE, CONCERNING THE OPTION OF EMPLOYEES, WHILE PERFORMING
THEIR DAY-TO-DAY TECHNICIAN DUTIES, TO WEAR THE MILITARY UNIFORM OR AN
AGREED-UPON STANDARD CIVILIAN ATTIRE.
E) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED, AND OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE:
A) UPON REQUEST, MEET AND CONFER IN GOOD FAITH, TO THE EXTENT
CONSONANT WITH LAW, REGULATIONS AND THE STATUTE, WITH THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-100, THE EXCLUSIVE
REPRESENTATIVE OF CERTAIN OF ITS EMPLOYEES, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE, CONCERNING THE OPTION OF EMPLOYEES, WHILE PERFORMING
HEIR DAY-TO-DAY TECHNICIAN DUTIES, TO WEAR THE MILITARY UNIFORM OR AN
AGREED-UPON STANDARD CIVILIAN ATTIRE.
B) POST AT EACH OF ITS FACILITIES IN THE COMMONWEALTH OF KENTUCKY
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 ADJUTANT GENERAL OF THE KENTUCKY NATIONAL
GUARD, 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
ADJUTANT GENERAL 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 STATUTE BE, AND IT HEREBY IS, DISMISSED. /1/
ISSUED, WASHINGTON, D.C., OCTOBER 31, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, 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 MAKE ANY STATEMENTS OR COMMENTS, BY THE ADJUTANT GENERAL
OR ANY OTHER AGENT, OFFICER OR REPRESENTATIVE OF MANAGEMENT, TO MEMBERS
OF THE NEGOTIATING TEAM OF LOCAL R5-100, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, OR ANY OTHER EMPLOYEE IN THE BARGAINING UNIT, THAT
THE WEARING OF CIVILIAN ATTIRE IN THE DAY-TO-DAY PERFORMANCE OF
TECHNICIAN DUTIES IS NOT IN THEIR BEST INTEREST OR IN THE BEST INTEREST
OF THE TECHNICIAN PROGRAM, THAT THE UNIFORM ISSUE WILL DESTROY THE
NATIONAL GUARD, THAT THE ADJUTANT GENERAL WILL DO ANYTHING TO KEEP THE
EMPLOYEES IN UNIFORM, OR ANY OTHER STATEMENT OR COMMENT WHICH WOULD
INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES IN THE EXERCISE OF
THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL NOT REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH THE
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-100, THE
EXCLUSIVE REPRESENTATIVE OF CERTAIN OF OUR EMPLOYEES CONCERNING THE
OPTION OF EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN
DUTIES, TO WEAR THE MILITARY UNIFORM OR ANY AGREED-UPON STANDARD
CIVILIAN ATTIRE PURSUANT TO THE DECISION AND ORDER OF THE FEDERAL
SERVICE IMPASSES PANEL DATED AUGUST 22, 1978.
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 NOT REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH THE
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-100, THE
EXCLUSIVE REPRESENTATIVE OF CERTAIN OF OUR EMPLOYEES, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE, CONCERNING THE OPTION OF OUR EMPLOYEES, WHILE
PERFORMING THEIR DAY-TO-DAY TECHNICIAN DUTIES, TO WEAR THE MILITARY
UNIFORM OR AN AGREED-UPON STANDARD CIVILIAN ATTIRE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL UPON REQUEST, MEET AND CONFER IN GOOD FAITH, TO THE EXTENT
CONSONANT WITH LAW, REGULATIONS AND THE STATUTE, WITH THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-100, THE EXCLUSIVE
REPRESENTATIVE OF CERTAIN OF OUR EMPLOYEES, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE, CONCERNING THE OPTION OF OUR EMPLOYEES, WHILE PERFORMING
THEIR DAY-TO-DAY TECHNICIAN DUTIES, TO WEAR THE MILITARY UNIFORM OR AN
AGREED-UPON STANDARD CIVILIAN ATTIRE.
. . .
AGENCY OR ACTIVITY
DATED: . . . BY: . . .
(SIGNATURE)
THE ADJUTANT GENERAL
KENTUCKY NATIONAL GUARD
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 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 4, WHOSE
ADDRESS IS: SUITE 501, NORTH WING, 1776 PEACHTREE STREET, N.W.,
ATLANTA, GEORGIA 30300, AND WHOSE TELEPHONE NUMBER IS: (404) 881-2324.
---------
FOLLOWS -----------
REGIONAL ATTORNEY
JAMES PUHGER, ESQUIRE
ATTORNEY
MATILDA GENOVESE, ESQUIRE
ATTORNEY
FEDERAL LABOR RELATIONS AUTHORITY
SUITE 501, NORTH WING
1776 PEACHTREE STREET, N.W.
ATLANTA, GEORGIA 30309
FOR THE GENERAL COUNSEL
DAVID W. DOWNES, ESQUIRE
STAFF ATTORNEY
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES
285 DORCHESTER AVENUE
BOSTON, MASSACHUSETTS 02127
FOR THE CHARGING PARTY
DON BRENEMAN, ESQUIRE
LABOR RELATIONS SPECIALIST
NATIONAL GUARD BUREAU
COLUMBIA PIKE OFFICE BUILDING
5600 COLUMBIA PIKE
FALLS CHURCH, VIRGINIA 22041
THOMAS G. MOONEY, ESQUIRE
2100 COMMONWEALTH BUILDING
LOUISVILLE, KENTUCKY 40202
FOR THE RESPONDENT
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C. 7101
ET SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER, INTERIM RULES
AND REGULATIONS, FED. REG., VOL. 44, NO. 147, JULY 30, 1979, FINAL RULES
AND REGULATIONS, EFFECTIVE JANUARY 28, 1980, FED. REG., VOL. 45, NO. 12,
JANUARY 17, 1980, 5 C.F.R. CHAPTER XIV. A CHARGE WAS FILED ON APRIL 30,
1979 (G.C. EXH. 1(A)) BY NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
LOCAL R5-100 (HEREINAFTER ALSO REFERRED TO AS THE "UNION") AND AN
AMENDED CHARGE WAS FILED ON JULY 2, 1979 (G.C. EXH. 1(B)) BY THE UNION.
A COMPLAINT AND NOTICE OF HEARING ISSUED ON AUGUST 24, 1979 (G.C. EXH.
1(E)). THE COMPLAINT ALLEGES THE FOLLOWING VIOLATIONS BY RESPONDENT:
OF SECTION 19(A)(1) OF EXECUTIVE ORDER 11491, AS AMENDED (HEREINAFTER
ALSO REFERRED TO AS THE "ORDER") BY VIRTUE OF CERTAIN ACTS AND
STATEMENTS ON NOVEMBER 8, 1978, BY THE ADJUTANT GENERAL OF KENTUCKY,
MAJOR GENERAL WELLMAN (PARAGRAPHS 5, 6 AND 14); OF SECTIONS 19(A)(1)
AND (6) OF THE ORDER BY VIRTUE OF A REFUSAL TO BARGAIN IN GOOD FAITH ON
NOVEMBER 8, 1978, PURSUANT TO AN ORDER OF THE FEDERAL SERVICE IMPASSES
PANEL (PARAGRAPH 8, 9, AND 15); OF SECTION 7116(A)(1) AND (5) OF THE
FEDERAL SERVICE LABOR MANAGEMENT RELATIONS STATUTE (HEREINAFTER ALSO
REFERRED TO AS THE "STATUTE") /2/ BY VIRTUE OF THE REFUSAL TO BARGAIN IN
GOOD FAITH ON AND AFTER JUNE 19, 1979 CONCERNING THE WEARING OF CIVILIAN
CLOTHING (PARAGRAPHS 11 AND 16); AND OF SECTIONS 16(A)(1) AND (6) OF
THE STATUTE BY VIRTUE OF THE FAILURE OR REFUSAL OF RESPONDENT TO
COOPERATE IN IMPASSE PROCEDURES AND IMPASSE DECISION AS REQUIRED BY THE
STATUTE (PARAGRAPHS 8, 9, AND 15.) THE ALLEGATIONS OF PARAGRAPHS 12 AND
17 WITH RESPECT TO SECTION 16(A)(8) OF THE STATUTE ARE, AT BEST,
DUPLICATIONS OF MORE SPECIFIC ALLEGATIONS OF THE COMPLAINT AND HAVE NOT
BEEN CONSIDERED. /3/
PURSUANT TO THE NOTICE OF HEARING, A HEARING WAS DULY HELD BEFORE THE
UNDERSIGNED ON NOVEMBER 8, 1979, IN LOUISVILLE, KENTUCKY. ALL PARTIES
WERE REPRESENTED BY ABLE COUNSEL, WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
HEARING ON THE ISSUES INVOLVED HEREIN; AND THE PARTIES WERE AFFORDED
FULL OPPORTUNITY TO PRESENT ORAL ARGUMENT AT THE CONCLUSION OF THE
TESTIMONY. AT THE CLOSE OF THE HEARING, AT THE REQUEST OF COUNSEL FOR
THE GENERAL COUNSEL, WITH THE CONCURRENCE OF COUNSEL FOR RESPONDENT,
DECEMBER 14, 1979 WAS FIXED AS THE DATE FOR MAILING POST-HEARING BRIEFS
AND COUNSEL FOR THE GENERAL COUNSEL AND FOR THE RESPONDENT HAVE TIMELY
MAILED HELPFUL BRIEFS, RECEIVED ON DECEMBER 18, 1979, WHICH HAVE BEEN
CAREFULLY CONSIDERED. UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING
FINDINGS, CONCLUSIONS AND ORDER:
FINDINGS AND CONCLUSIONS /4/
1. BACKGROUND.
THE UNION HAD BEEN THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ALL AIR
NATIONAL GUARD TECHNICIANS OF RESPONDENT IN THE COMMONWEALTH OF KENTUCKY
FOR A NUMBER OF YEARS, INCLUDING ALL TIMES MATERIAL TO THIS CASE. THE
KENTUCKY NATIONAL GUARD IS AN AMALGAMATION OF THE ARMY AND AIR NATIONAL
GUARD OF KENTUCKY. THE HIGHEST MILITARY OFFICIAL OF RESPONDENT IS THE
ADJUTANT GENERAL AND THE INDIVIDUAL OCCUPYING THAT POSITION AT PRESENT,
AND AT ALL TIMES MATERIAL TO THIS CASE, IS MAJOR GENERAL BILLY G.
WELLMAN.
THE ISSUE IN THIS CASE IS THE WEARING OF CIVILIAN ATTIRE BY
TECHNICIANS WHILE PERFORMING THEIR DAY-TO-DAY DUTIES AS CIVILIAN
TECHNICIANS. THE NATIONAL GUARD ACT, 32 U.S.C. 709, AUTHORIZES, AS A
CONDITION TO EMPLOYMENT AS A CIVILIAN TECHNICIAN, MEMBERSHIP IN THE
NATIONAL GUARD AND 32 U.S.C. 709(D) PROVIDES THAT A POSITION AUTHORIZED
BY THIS SECTION IS OUTSIDE THE COMPETITIVE SERVICE IF THE TECHNICIAN IS
REQUIRED, PURSUANT TO SUBSECTION (B), TO BE A MEMBER OF THE NATIONAL
GUARD. SEE, ALSO, DEPARTMENT OF DEFENSE, NATIONAL THE NATIONAL GUARD.
SEE, ALSO, DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU, TEXAS AIR
NATIONAL GUARD, A/SLMR NO. 336, A/SLMR 32 (1974). TRADITIONALLY,
CIVILIAN TECHNICIANS HAVE BEEN REQUIRED TO WEAR THE MILITARY UNIFORM;
HOWEVER, BECAUSE THEY ARE CIVILIAN TECHNICIANS WHILE PERFORMING THEIR
DAY-TO-DAY DUTIES, TECHNICIANS HAVE LONG SOUGHT THE RIGHT TO WEAR
CIVILIAN ATTIRE. IN KENTUCKY, THE UNIFORM MATTER WAS FIRST RAISED IN
1971 BY A PETITION WHEREBY THE TECHNICIANS REQUESTED THAT THEY BE
ALLOWED TO WEAR CIVILIAN CLOTHING. THIS WAS DENIED AND THE UNION'S
DEMAND TO BARGAIN ON SUCH ISSUE WAS ASSERTED BY RESPONDENT TO BE
NON-NEGOTIABLE; HOWEVER THE FEDERAL LABOR RELATIONS COUNCIL HELD THE
MATTER TO BE NEGOTIABLE. NEGOTIATIONS WERE NOT PRODUCTIVE AND ON JUNE
8, 1977, THE UNION FILED A REQUEST WITH THE FEDERAL SERVICE IMPASSES
PANEL TO CONSIDER A NEGOTIATING IMPASSE UNDER SECTION 17 OF THE ORDER.
A FACT FINDING HEARING WAS HELD ON OCTOBER 5, 1977, AND A REPORT WAS
ISSUED ON APRIL 25, 1978. IN THE MEANTIME, THE FSIP HAD ISSUED
RECOMMENDATIONS IN TEN OTHER CASES CONCERNING THE SAME ISSUE, NAMELY,
THE WEARING OF MILITARY UNIFORM, AND ON JUNE 30, 1978, THE FSIP ISSUED
AN ORDER TO SHOW CAUSE AS TO WHY THE SAME PROVISION SHOULD NOT BE
MANDATED AS TO RESPONDENT (G.C. EXH. 2). NO RESPONSE TO THE ORDER TO
SHOW CAUSE WAS SUBMITTED BY EITHER THE UNION OR THE RESPONDENT AND, ON
AUGUST 22, 1978, THE FSIP ISSUED ITS DECISION AND ORDER WHICH PROVIDED,
IN PART, AS FOLLOWS:
"ORDER
"PURSUANT TO THE AUTHORITY VESTED IN IT BY EXECUTIVE ORDER 11491, AS
AMENDED, THE FEDERAL
IMPASSES PANEL HEREBY ORDERS THAT:
"THE PARTIES SHALL ADOPT THE FOLLOWING LANGUAGE IN THEIR AGREEMENT:
"1. EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN DUTIES,
SHALL HAVE THE OPTION
OF WEARING EITHER (A) THE MILITARY UNIFORM OR (B) AN AGREED-UPON
STANDARD CIVILIAN ATTIRE
WITHOUT DISPLAY OF MILITARY RANK, SUCH CLOTHING TO BE PURCHASED BY
EMPLOYEES WHO CHOOSE TO
WEAR IT.
"2. CIRCUMSTANCES FOR WHICH THE WEARING OF THE MILITARY UNIFORM MAY
BE REQUIRED SHALL BE
AGREED UPON BY THE PARTIES AND INCORPORATED IN THIS AGREEMENT . . ."
(G.C. EXH. 3)
RESPONDENT AGREED TO MEET AND NEGOTIATE THIS MATTER ON NOVEMBER 8,
1979.
2. STATEMENTS BY GENERAL WELLMAN ON NOVEMBER 8, 1978, TO MEMBERS OF
UNION'S LOCAL NEGOTIATING TEAM.
THERE IS NO DISPUTE THAT ON THE MORNING OF NOVEMBER 8, 1978, PRIOR TO
THE BEGINNING OF NEGOTIATIONS, GENERAL WELLMAN, WITH FULL KNOWLEDGE OF
THE PRESENCE OF MR. CHARLES E. HICKEY, NATIONAL VICE PRESIDENT OF THE
UNION AND ALTERNATE SPOKESMAN FOR THE UNION NEGOTIATING TEAM (G.C. EXH.
4), ASKED THE MEMBERS OF THE UNION'S NEGOTIATING TEAM, EXCLUSIVE OF MR.
HICKEY, TO MEET WITH HIM IN HIS OFFICE. GENERAL WELLMAN TESTIFIED THAT
THE FOLLOWING CONVERSATION TOOK PLACE:
"I SAID, . . . 'YOU ALL GO IN THERE AND DO WHAT YOU THINK IS RIGHT,
BECAUSE I'M GOING TO DO
WHAT I THINK'S RIGHT FOR YOU.' THEY SAID, 'WELL, WHAT DO YOU THINK IS
RIGHT?' I SAID, 'I
WOULD DO ANYTHING TO KEEP YOU IN UNIFORM, BECAUSE I THINK IT IS TO
YOUR BEST INTEREST AND THE
BEST INTEREST OF THE TECHNICIAN PROGRAM.' I SAID THAT I THOUGHT THAT
THE UNIFORM ISSUE WAS
NOT IN THE BEST INTEREST OF THE TECHNICIAN PROGRAM. THE PEOPLE LEFT
AND THAT WAS THE EXTENT
OF OUR CONVERSATION . . ." (TR. 110). MR. ROBERT E. DENTON, CHIEF
SPOKESMAN FOR THE UNION, TESTIFIED THAT GENERAL WELLMAN STATED,
". . . HE TOLD US THAT HE BELIEVED THAT IF THE TECHNICIANS WERE TO
WEAR CIVILIAN CLOTHING
INSTEAD OF MILITARY UNIFORMS, (SIC) WOULD DESTROY THE NATIONAL GUARD.
AND, THEN, OF COURSE,
WE QUESTIONED THE REASONS BEHIND THAT, BUT HE JUST SAID IT WOULD,
THAT HE BELIEVED, IT WOULD
DESTROY THE NATIONAL GUARD.
"AFTER A WHILE, HE SAID, "WELL, YOU GUYS GO IN THERE AND DO WHAT YOU
THINK IS BEST FOR
YOURSELVES, AND DO WHAT YOU HAVE TO DO, HOWEVER, I WILL DO ANYTHING
TO KEEP YOU IN
UNIFORM.'" (TR. 38). MR. DENTON'S TESTIMONY WAS FULLY SUPPORTED BY
THE TESTIMONY OF MR. BOBBIE L. BRAWNER, MEMBER (TR. 94) AND MESSRS.
STEPHAN L. WEGMANN (TR. 84) AND MR. JIM WHITE (TR. 98), ALTERNATE
MEMBERS OF THE UNION'S NEGOTIATING TEAM. AS MESSRS. DENTON, BRAWNER,
WEGMAN AND WHITE WERE WHOLLY CREDIBLE WITNESSES AND THEIR TESTIMONY WAS
MUTUALLY CORROBORATIVE, I HAVE NO HESITATION IN CREDITING THEIR
TESTIMONY; BUT FOR THE SAKE OF ARGUMENT EVEN ACCEPTING GENERAL
WELLMAN'S DENIAL THAT HE DID NOT SAY THAT THE ISSUE OF CIVILIAN ATTIRE
WOULD DESTROY THE NATIONAL GUARD (TR. 107), GENERAL WELLMAN ADMITTED
THAT HE TOLD MESSRS. DENTON, BRAWNER, WEGMAN AND WHITE THAT HE THOUGHT
THE UNIFORM ISSUE WAS NOT IN THE BEST INTEREST OF THE TECHNICIAN
PROGRAM.
THE CIRCUMSTANCES OF THE MEETING WERE AS ASTOUNDING AS GENERAL
WELLMAN'S STATEMENTS. FIRST, FOR THE COMMANDING OFFICER TO MEET WITH
THE UNION'S NEGOTIATORS IMMEDIATELY PRIOR TO A SCHEDULED BARGAINING
SESSION WAS EXTRAORDINARY. SECOND, HE WAS FULLY AWARE OF MR. HICKEY'S
PRESENCE AS A MEMBER OF THE UNION'S NEGOTIATING TEAM BUT SPECIFICALLY
DID NOT INVITE MR. HICKEY TO HIS OFFICE. HIS STATED JUSTIFICATION, THAT
HE HAD NOT BEEN INTRODUCED TO MR. HICKEY, IS HOLLOW, INDEED. THIRD, FOR
THE ADJUTANT GENERAL TO REGALE THE UNION'S NEGOTIATING TEAM FOR THE
PURPOSE OF EXPRESSING RESPONDENT'S STEADFAST OPPOSITION TO THE ONLY
ISSUE TO BE NEGOTIATED, I.E. THAT THE UNION'S DEMAND, ORDERED BY THE
FSIP, THAT EMPLOYEES HAVE THE OPTION OF WEARING CIVILIAN ATTIRE, WAS NOT
IN THEIR BEST INTEREST OR THE BEST INTEREST OF THE TECHNICIAN PROGRAM,
IMMEDIATELY PRIOR TO THE COMMENCEMENT OF NEGOTIATIONS AND AFTER THE
DELIBERATE EXCLUSION OF THE UNION'S NATIONAL VICE PRESIDENT, OBVIOUSLY
TENDED TO INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN THE EXERCISE
OF RIGHTS ASSURED BY THE ORDER IN VIOLATION OF SECTION 19(A)(1) OF THE
ORDER. THIS WAS THE HIGHEST MILITARY OFFICIAL OF RESPONDENT, A MAJOR
GENERAL, TELLING THE MEMBERS OF UNION'S LOCAL NEGOTIATING TEAM, EACH AN
ENLISTED MEMBER OF THE NATIONAL GUARD, THAT IT WAS NOT IN THEIR BEST
INTEREST, OR IN THE BEST INTEREST OF THE TECHNICIAN PROGRAM, TO WEAR
CIVILIAN CLOTHING AND THAT HE, GENERAL WELLMAN, WOULD "DO ANYTHING TO
KEEP YOU IN UNIFORM." NOT ONLY DID SUCH STATEMENTS INTERFERE WITH THE
EMPLOYEES' RIGHT, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL, TO ACT
FOR THE UNION IN THE NEGOTIATIONS BUT THE STATEMENTS BY GENERAL WELLMAN
THAT "I WOULD DO ANYTHING TO KEEP YOU IN UNIFORM", AS WELL AS HIS
REFERENCE TO THEIR "BEST INTEREST" CONSTITUTED A THREAT TO THE
EMPLOYEES. CF., NATIONAL LABOR RELATIONS BOARD AND ITS GENERAL COUNSEL
AND NATIONAL LABOR RELATIONS BOARD, REGION 29, A/SLMR NO. 1143, 8 A/SLMR
1197(1978), APPEAL DISMISSED 1 FLRA 28, REPORT NO. 4, JUNE 22, 1979;
PENNSYLVANIA ARMY NATIONAL GUARD, 1 FLRA 60, REPORT NO. 9, JULY 9,
1979; DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION,
AIRWAY FACILITIES SECTOR, TAMPA, FLORIDA, A/SLMR NO. 725, 6 A/SLMR
521(1976). NOR WERE THE STATEMENTS BY GENERAL WELLMAN ANY LESS A
VIOLATION OF SECTION 19(A)(1) BECAUSE HE USED "A VELVET GLOVE."
3. ALLEGED VIOLATION OF SECTION 16(A)(6) OF THE STATUTE.
UNDER THE ORDER, ALLEGED NON-COMPLIANCE WITH A DECISION OF THE
IMPASSES PANEL WAS, AND IS, A PART OF THE OBLIGATION TO BARGAIN IN GOOD
FAITH IMPOSED BY SECTION 11(A) OF THE ORDER AND A FAILURE TO BARGAIN IN
GOOD FAITH PURSUANT TO A DECISION OF THE IMPASSES PANEL IS A VIOLATION
OF SECTION 19(A)(6) OF THE ORDER. NEITHER THE ORDER NOR THE STATUTE
PROVIDES FOR DIRECT ENFORCEMENT OF DECISIONS AND ORDERS OF THE PANEL;
HOWEVER, THE STATUTE HAS ADDED A NEW UNFAIR LABOR PRACTICE, NAMELY SEC.
16(A)(6) WHICH PROVIDES:
"(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY--
* * * *
(6) TO FAIL OR REFUSE TO COOPERATE IN IMPASSE PROCEDURES AND IMPASSE
DECISIONS AS REQUIRED
BY THIS CHAPTER;" SEC. 16(B)(6) IS THE IDENTICAL COUNTERPART AS TO
LABOR ORGANIZATIONS.
ALTHOUGH THE STATUTE WAS ENACTED ON OCTOBER 13, 1978, SUBPART F--
LABOR-MANAGEMENT AND EMPLOYEE RELATIONS OF P.L. 95-454, WAS NOT
EFFECTIVE UNTIL JANUARY 11, 1979 (SEC. 907 OF P.L. 95-454, LEGISLATIVE
HISTORY OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, TITLE
VII OF THE CIVIL SERVICE REFORM ACT OF 1978, 96TH CONG., 1ST SESS.,
HOUSE COMMITTEE PRINT NO. 96-7, P. 117). RESPONDENT'S ASSERTED FAILURE
AND REFUSAL TO COMPLY WITH THE DECISION AND ORDER OF PANEL, DISCUSSED
HEREINAFTER IN SECTION 4, OCCURRED ON NOVEMBER 8, 1978, AT WHICH TIME
SEC. 16(A)(6) OF THE STATUTE HAD NOT BECOME EFFECTIVE AND ANY FAILURE BY
RESPONDENT TO COMPLY WITH THE 1978 ORDER OF THE PANEL IN NOVEMBER 1978,
WAS NOT A VIOLATION OF SEC. 16(A)(6) OF THE STATUTE, ALTHOUGH IT MAY
WELL HAVE BEEN A VIOLATION OF SECTION 19(A)(6) OF THE ORDER.
GENERAL COUNSEL URGES A THEORY OF A CONTINUING VIOLATION AFTER
JANUARY 11, 1979; BUT THE ONLY "CONTINUING VIOLATION" WAS THAT
RESPONDENT DID NOTHING AFTER JANUARY 11, 1979, TO CHANGE THE POSITION IT
HAD TAKEN IN NOVEMBER, 1978. NOR DID THE UNION, AFTER JANUARY 11, 1979,
SEEK TO RENEW NEGOTIATIONS. TO THE CONTRARY, AS DISCUSSED MORE FULLY
HEREINAFTER, THE UNION HAD TAKEN THE POSITION ON NOVEMBER 8, 1978, THAT
THEY WERE AT A BARGAINING IMPASSE. ACCORDINGLY, ANY FAILURE OF
RESPONDENT TO COMPLY WITH THE DECISION AND ORDER OF THE PANEL OCCURED IN
1978 AND, ASSUMING THAT THIS CONDUCT, IN 1978, VIOLATED SECTION 19(A)(6)
OF THE ORDER, INACTION IN 1979, AFTER THE STATUTE BECAME EFFECTIVE, TO
CORRECT A PRIOR VIOLATION OF THE ORDER, AFFORDS NO BASIS FOR FINDING A
VIOLATION OF SECTION 16(A)(6) OF THE STATUTE, THE LEGAL EFFECT OF WHICH
WOULD BE TO MAKE SECTION 16(A)(6) RETROACTIVE TO NOVEMBER 8, 1978.
INDEED, EVEN IF BY SOME ALCHEMY SECTION 16(A)(6) WERE APPLICABLE, THE
AUGUST 22, 1978, ORDER OF FSIP WAS NOT, DESPITE ITS SURFACE APPEARANCE,
COMPLETE. THUS, PURSUANT TO PARAGRAPH 1 THE PARTIES MUST AGREE UPON
STANDARD CIVILIAN ATTIRE AND PURSUANT TO PARAGRAPH 2, THE PARTIES MUST
AGREE TO THE CIRCUMSTANCES REQUIRING THE WEARING OF THE MILITARY
UNIFORM. WHETHER RESPONDENT COOPERATED IN THIS DECISION TURNS ON
WHETHER RESPONDENT BARGAINED IN GOOD FAITH ON NOVEMBER 8, 1978, SINCE
RESPONDENT PURPORTED TO COMPLY WITH THE FSIP ORDER. FOR REASONS STATED
HEREINAFTER, I HAVE CONCLUDED THAT RESPONDENT DID NOT BARGAIN IN GOOD
FAITH ON NOVEMBER 8, 1978; BUT SUCH FAILURE TO BARGAIN IN GOOD FAITH
OCCURRED IN 1978 UNDER THE ORDER AND RESPONDENT'S ACTIONS OF NOVEMBER
1978, WERE NOT OF A CONTINUING NATURE AS TO SUPPORT A VIOLATION OF THE
STATUTE IN 1979.
MOREOVER, ON JUNE 19, 1979, THE PARTIES MET TO NEGOTIATE A NEW
CONTRACT. ONE OF THE UNION'S DEMANDS WAS FOR A NEW ARTICLE TO THE
EFFECT THAT EMPLOYEES "SHALL HAVE THE OPTION OF WEARING EITHER (A)
MILITARY UNIFORM OR (B) AN AGREED UPON STANDARD CIVILIAN ATTIRE WITHOUT
DISPLAY OF MILITARY RANK, SUCH CLOTHING TO BE OBTAINED BY EMPLOYEES WHO
CHOOSE TO WEAR IT". THIS DEMAND DID REFLECT THE LANGUAGE OF PARAGRAPH 1
OF THE FSIP ORDER OF AUGUST 22, 1978, BUT WAS PART OF THE OVER-ALL
NEGOTIATIONS. THE PARTIES NEGOTIATED ABOUT SIX AND ONE-HALF DAYS BUT DID
NOT REACH AGREEMENT ON SOME SEVEN ARTICLES, INCLUDING THE NEW ARTICLE ON
UNIFORMS, REFERRED TO ABOVE, AND ON SEPTEMBER 7, 1979, THE UNION FILED A
REQUEST WITH THE FSIP TO CONSIDER A NEGOTIATION IMPASSE (G.C. EXH. 10).
ON OCTOBER 17, 1979, THE FSIP DECLINED JURISDICTION "INASMUCH AS IT HAS
DETERMINED THAT VOLUNTARY EFFORTS HAVE NOT BEEN EXHAUSTED. NEGOTIATIONS
BY THE PARTIES, THEREFORE, SHOULD BE RESUMED WITH THE ASSISTANCE OF THE
FEDERAL MEDIATION AND CONCILIATION SERVICE." (RESP. EXH. 3). THE
RECORD FURTHER REFLECTED THAT, AT THE TIME OF THE HEARING, MEDIATION WAS
SCHEDULED FOR LATE NOVEMBER, 1979.
CONSEQUENTLY, AFTER THE EFFECTIVE DATE OF THE STATUTE, THE ONLY
DIRECTION OF THE PANEL WAS THAT CONTAINED IN ITS LETTER OF OCTOBER 17,
1979, AND THE RECORD SHOWS AFFIRMATIVE STEPS TO COMPLY WITH THE
DIRECTION TO RESUME NEGOTIATIONS WITH THE ASSISTANCE OF THE FEDERAL
MEDIATION AND CONCILIATION SERVICE.
FOR ALL THE FOREGOING REASONS, AS ANY FAILURE OF RESPONDENT TO COMPLY
WITH AN ORDER OF THE FSIP OCCURRED IN 1978, THERE IS NO BASIS FOR
FINDING A VIOLATION OF SECTION 16(A)(6) OF THE STATUTE AND THE PORTION
OF THE COMPLAINT ALLEGING A VIOLATION OF SECTION 16(A)(6) AND,
DERIVATIVELY, OF SECTION 16(A)(1) IN CONNECTION THEREWITH, ARE HEREBY
DISMISSED.
4. VIOLATION OF SECTION 19(A)(6) OF THE ORDER
THE FSIP ORDER OF AUGUST 22, 1978, QUITE PLAINLY STATED THAT "THE
PARTIES SHALL ADOPT THE FOLLOWING LANGUAGE IN THEIR AGREEMENT: 1.
EMPLOYEES . . . SHALL HAVE THE OPTION OF WEARING EITHER (A) THE MILITARY
UNIFORM OR (B) AN AGREED-UPON STANDARD CIVILIAN ATTIRE . . . ." THE
UNION'S PROPOSAL, SUBMITTED WITH ITS COVER LETTER OF OCTOBER 24, 1978
(G.C. EXH. 4), SPECIFIED THE CIVILIAN WORK ATTIRE AND PARAGRAPH 8
STATED "WEAR OF THE MILITARY UNIFORM OR THE CIVILIAN ATTIRE WILL BE AT
THE OPTION OF THE EMPLOYEE ON A DAY-TO-DAY BASIS." ON A SEPARATE PAGE,
THE UNION SET FORTH CIRCUMSTANCES WHEN THE MILITARY UNIFORM MUST BE WORN
(G.C. EXH. 4, ATTACHMENT).
RESPONDENT'S PROPOSALS, SUBMITTED WITH ITS COVER LETTER DATED
NOVEMBER 1, 1978 (G.C. EXH. 5), REFLECTED AN ALMOST TOTAL DISDAIN FOR
THE FSIP ORDER. THUS, RESPONDENT'S PROPOSALS READ:
"1. GENERAL: A. TECHNICIANS . . . SHALL WEAR THE MILITARY UNIFORM .
. . WHEN PERFORMING
TECHNICIANS DUTIES . . .
"B. TECHNICIANS IN THE BARGAINING UNIT MAY WEAR ATTIRE OTHER THAN
THE MILITARY UNIFORM
ONLY UPON PRIOR APPROVAL OF THE ADJUTANT GENERAL.
"C. TECHNICIANS ARE EXEMPT FROM THE WEAR OF MILITARY UNIFORM WHILE
ACTUALLY PERFORMING IN
ANY OF THE FOLLOWING SITUATIONS:
"(1) TRAVELING . . . BY COMMERCIAL OR PRIVATE TRANSPORTATION.
"(2) ATTENDING COURSES OF INSTRUCTION IN A TECHNICIAN STATUS AT
LOCATIONS OTHER THAN
MILITARY INSTALLATIONS.
"(3) WHEN SERVING AS A LABOR ORGANIZATION REPRESENTATIVE WHILE
ENGAGED IN LABOR AGREEMENT
NEGOTIATIONS.
"(4) WHILE PARTICIPATING AS A DATA COLLECTOR DURING THE CONDUCT OF
FEDERAL WAGE SYSTEM
SURVEYS.
"(5) IN ANY SITUATION DEEMED APPROPRIATE BY THE ADJUTANT GENERAL.
"D. ATTIRE OTHER THAN THE MILITARY UNIFORM WILL BE AS PRESCRIBED BY
THE ADJUTANT GENERAL.
. . . .
"F. ANY AUTHORIZED ATTIRE OTHER THAN THE MILITARY UNIFORM WILL BE AS
PRESCRIBED BY THE
ADJUTANT GENERAL.
"G. IF ATTIRE OTHER THAN THE MILITARY UNIFORM IS AUTHORIZED FOR WEAR
BY THE ADJUTANT
GENERAL, ALL ELIGIBLE MEMBERS OF THE BARGAINING UNIT WILL BE REQUIRED
TO WEAR SUCH ATTIRE
WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN DUTIES. . . ." (G.C.
EXH. 5, ATTACHMENT).
PRIOR TO THE COMMENCEMENT OF NEGOTIATIONS, GENERAL WELLMAN MET WITH
THE UNION'S LOCAL NEGOTIATORS AND MADE THE COMMENTS, MORE FULLY SET
FORTH HEREINABOVE, WHEREBY HE MADE IT CLEAR THAT HE OPPOSED THE IDEA OF
TECHNICIANS WEARING CIVILIAN CLOTHES, TOLD THE NEGOTIATORS IT WAS NOT IN
THEIR BEST INTEREST AND THAT HE WOULD DO ANYTHING TO KEEP THEM IN
UNIFORM.
AT THE NEGOTIATIONS ON NOVEMBER 8, 1978, WHICH COMMENCED IMMEDIATELY
AFTER GENERAL WELLMAN'SMEETING WITH THE UNION'S LOCAL NEGOTIATORS,
COLONEL KINNAIRD WAS SPOKESMAN FOR RESPONDENT. DURING NEGOTIATIONS /5/
RESPONDENT MADE COUNTER PROPOSALS TO ITS INITIAL PROPOSALS AND TO THE
UNION'S PROPOSALS, SOME OF WHICH ARE REFLECTED BY GENERAL COUNSEL'S
EXHIBIT 6. PARAGRAPH 1A WAS UNCHANGED FROM RESPONDENT'S NOVEMBER 1,
1978, PROPOSAL; BUT SUBPARAGRAPH B NOW PROVIDED,
"B. ALL MEMBERS OF THE BARGAINING UNIT WILL WEAR THE STANDARD
CIVILIAN ATTIRE. EXCEPTIONS
TO THIS POLICY WILL BE AT THE DISCRETION OF THE ADJUTANT GENERAL.
THE REMAINING SUBPARAGRAPHS OF PARAGRAPH 1 WERE QUITE DIFFERENT FROM
RESPONDENT'S NOVEMBER 1 PROPOSAL, ONLY TWO OF WHICH ARE NOTED:
SUBPARAGRAPH D REQUIRED THAT EACH EMPLOYEE MAINTAIN A MILITARY UNIFORM
IN THE IMMEDIATE VICINITY OF HIS WORK LOCATION; AND SUBPARAGRAPH I
PROVIDED THAT "WITHIN THIRTY (30) CALENDAR DAYS OF THE EFFECTIVE DATE OF
THIS SUPPLEMENTAL AGREEMENT, EACH TECHNICIAN WHO IS OTHERWISE ELIGIBLE
WILL ACQUIRE AND WEAR THE AGREED UPON STANDARD CIVILIAN ATTIRE WHILE
PERFORMING THE TECHNICIAN DAY-TO-DAY TECHNICIAN DUTIES." RESPONDENT
SUBMITTED AT THE NEGOTIATING MEETING PARAGRAPHS 2 (PAGES 3-10 OF G.C.
EXH. 6) AND 3 (PAGES 11-13 OF G.C. EXH. 6) WHICH HAD NOT BEEN A PART OF
ITS NOVEMBER 1 PROPOSALS. PARAGRAPH 3, SUBPARAGRAPH 13, SOMETIMES
REFERRED TO BY THE PARTIES, AND HEREIN, AS "BOWLEGGED 13" (PARAGRAPH 3
WAS ENTITLED "CIRCUMSTANCES AND OCCASIONS REQUIRING THE WEAR OF MILITARY
UNIFORM) PROVIDED AS FOLLOWS:
"(13) WHENEVER IT WOULD BE IN THE PUBLIC INTEREST OR IN THE BEST
INTEREST OF THE NATIONAL
GUARD AS DETERMINED BY THE ADJUTANT GENERAL."
THE UNION HAD VIEWED RESPONDENT'S PARAGRAPH 1 AS UNSATISFACTORY,
INDEED, ILLUSORY, SINCE, ALTHOUGH THE INITIAL THRUST OF SUBPARAGRAPH B
NOW WAS THAT ALL EMPLOYEES WEAR CIVILIAN ATTIRE, EXCEPTIONS TO THIS
POLICY, OF WEARING CIVILIAN ATTIRE, WERE AT THE DISCRETION OF THE
ADJUTANT GENERAL. ACCORDINGLY, THE UNION INSISTED UPON THE LANGUAGE OF
PARAGRAPH 1 OF THE FSIP ORDER. LATE IN THE NEGOTIATIONS, RESPONDENT
AGREED TO SUBSTITUTE PARAGRAPH 1 OF THE FSIP ORDER FOR ITS PROPOSED
PARAGRAPH 1 WITH THE FURTHER PROVISION THAT, WITHIN THIRTY DAYS AFTER
THE DATE OF THE SUPPLEMENTAL AGREEMENT, THE EMPLOYEES DECIDE WHETHER
THEY WOULD WEAR THE UNIFORM OR CIVILIAN ATTIRE AND IF A MAJORITY ELECTED
TO WEAR CIVILIAN ATTIRE, ALL WOULD WEAR CIVILIAN ATTIRE, AT THEIR
PERSONAL EXPENSE. ALTHOUGH IT IS CLEAR THAT, BY USE OF THE WORD
"OPTION" IN ITS ORDER, THE PANEL DID NOT DEFINE ALL CIRCUMSTANCES UNDER
WHICH INDIVIDUAL TECHNICIANS COULD EXERCISE THIS OPTION NOR DID IT PLACE
ANY LIMITATION BY TIME CONSTRAINTS OR GROUP DECISION MAKING ON THE
EXERCISE OF THIS OPTION, /6/ PREFERRING TO LEAVE THIS FOR NEGOTIATION BY
THE PARTIES. THE UNION HAD PROPOSED THAT THE CHOICE BE ". . . AT THE
OPTION OF THE EMPLOYEE ON A DAY-TO-DAY BASIS" (G.C. EXH. 4, PAR. 8);
BUT, IN A MAJOR AND BASIC CONCESSION, OFFERED TO ACCEPT RESPONDENT'S
COUNTERPROPOSAL OF PARAGRAPH 1 OF THE PANEL ORDER WITH THE ONE TIME
OPTION ON THE RIGHT TO WEAR CIVILIAN CLOTHING, IF RESPONDENT WOULD DROP
"BOWLEGGED 13". RESPONDENT REFUSED ABSOLUTELY TO DELETE "BOWLEGGED 13".
RESPONDENT'S TRANSCRIPT OF THE TAPES OF THAT MEETING (RES. EXH. 2)
SHOWS, IN PART, AS FOLLOWS:
"HICKEY: (REFERRING TO PAR. 3, SUBPARAGRAPH 13, PAGE 13 (G.C. EXH.
6)) THAT'S A
REQUIREMENT OF YOURS TO BE INCLUDED.
"KINNAIRD: YES SIR.
"HICKEY: WE'VE ALREADY GIVEN THE POSITION WE CAN'T AGREE WITH THAT
AT ALL. IT'S NOT
ACCEPTABLE. (PP. 39-40)
* * * *
"HICKEY: WE CAN AGREE TO THAT PROPOSAL IF YOU'LL DROP ALL OF 13 . .
. (P. 41)
* * * *
"HICKEY: WHAT I'M SAYING IS THAT WE CAN AGREE TO YOUR LANGUAGE THAT
YOU WANT TO USE TO
MODIFY OR ADD ON TO PARAGRAPH 1 OF THE ORDER. IF THESE CIRCUMSTANCES
AND OCCASIONS WHERE THE
UNIFORM IS DEEMED APPROPRIATE. IF AGREED UPON AND WE WOULD HAVE TO
THRASH SOME OUT. BUT WE
CANNOT EVER AGREE ON AN OPEN-ENDED LANGUAGE OF YOUR BOWLEGGED 13
WHERE THE ADJUTANT GENERAL
HAS THE FINAL DECISION AS TO WHETHER OR NOT SOMEONE GETS OUT OF THE
UNIFORM.
"KINNAIRD: NO, NO, NOW YOU'RE NOT READING THAT RIGHT CHARLIE.
THAT'S NOT WHAT IT SAYS. I
KNOW WHAT YOU ALL THINK IT SAYS BUT THAT IS NOT WHAT IT SAYS. READ
THIS CAREFULLY.
"HICKEY: I'VE READ IT CAREFULLY.
"KINNAIRD: IT SAYS TWO TIMES, IT SAYS TWO TIMES IN HERE-- WHENEVER
IT WOULD BE IN THE
PUBLIC INTEREST. OK. WE KNOW WHAT THE PUBLIC INTEREST IS. WE GOT
IT, IF YOU DON'T KNOW THAT
I'LL FURNISH YOU A REAM OF STUFF ON WHAT THE PUBLIC INTEREST IS. I
DON'T THINK YOU NEED
THAT-- HOWEVER, IN THE BEST INTEREST OF THE NATIONAL GUARD.
"HICKEY: IF IT DOES THAT WHY DO YOU NEED THE LANGUAGE?
"KINNAIRD: BECAUSE THE ADJUTANT GENERAL IS THE ONE WHO MAKES THOSE
DETERMINATIONS. HE
MAKES ALL KINDS OF DETERMINATIONS AROUND HERE. BECAUSE HE HAS TO.
HE HAS TO HAVE THAT
AUTHORITY CHARLIE.
"HICKEY: I MADE YOU AN OFFER.
"KINNAIRD: WELL I'M MAKING YOU AN OFFER.
"HICKEY: I CAN'T AGREE WITH YOU 13-- THE CONCEPT OF ALL THAT THE
VERY BOTTOM LINE OF THE
AGREEMENT ANY EXCEPTIONS TO THE WEARING OF THE CIVILIAN UNIFORM THE
BOTTOM LIKE WHERE IT
SAYS-- 'WHENEVER IT WOULD BE IN THE PUBLIC INTEREST OR IN THE BEST
INTEREST OF THE NATIONAL
GUARD AS DETERMINED BY THE ADJUTANT GENERAL.' I CAN AGREE TO
EXCEPTIONS TO BE WORKED
OUT. THOSE PARTICULAR EXCEPTIONS THAT HAVE TO WEAR THE MILITARY
UNIFORM ON THOSE PARTICULAR
OCCASIONS WHEN THE UNIFORM. BUT I CAN NEVER AGREE TO THE LANGUAGE
THAT WOULD GIVE THE
ADJUTANT GENERAL THE RIGHT TO MAKE THE DECISION WHILE * * *
"KINNAIRD: WHAT YOU'RE SAYING THEN IS THAT IF WE MODIFY 3A
BOWLEGGED 13, THE WAY WE TALKED ABOVE WE PUT THAT VERBATIM IN THERE.
WE'LL WORK THE LANGUAGE OUT-- WHAT IT MEANS IS EVERYBODY WEARS THE
UNIFORM OR EVERYBODY WEARS
THE CIVILIAN ATTIRE. YOU BUY THAT IT WE STRIKE OUT 13 BUT NOTHING
ELSE IN THERE HAS BEEN
AGREED TO YET. IS THAT RIGHT?
"DENTON: RIGHT.
"KINNAIRD: I TELL YOU WHAT-- WE'RE NOT GOING TO BE ABLE TO-- WE'RE
ALREADY OVERTIME ON
THAT. WE'RE GOING TO HAVE TO DO WHAT WE'VE DONE IN THE PAST CHARLIE
AND THAT IS WE'RE GOING
TO HAVE TO WORK DOWN TO THAT ONE AND SEE HOW WE GET ALONG ON THE REST
OF THEM.
"HICKEY: I'LL HAVE TO GIVE YOU MY PARTICULAR POSITION, THE UNION'S
POSITION IS THAT WE'RE
AT AN IMPASSE AND WE SHALL HAVE TO GO BACK TO THE PANEL AND INFORM
THEM OF SUCH * * *
"KINNAIRD: OK." (PP. 42-43) (MR. HICKEY) TESTIFIED THAT THE PORTION
OF HIS STATEMENT
OMITTED, FOLLOWING "WE SHALL HAVE TO GO BACK TO THE PANEL AND INFORM
THEM OF SUCH" WAS, "THAT
WE CANNOT LIVE WITH YOUR BOWLEGGED 13" (TR. 154). MR. HICKEY FURTHER
TESTIFIED THAT HE DID
NOT RECALL A SINGLE WORD ANSWER BY COL. KINNAIRD AND THAT HE
REMEMBERED HIM SAYING, "OKAY, I
GUESS THAT'S IT." (TR. 154).
THERE WERE NO FURTHER NEGOTIATIONS AND THE PARTIES LEFT WITHOUT
FIXING ANY DATE FOR FURTHER NEGOTIATIONS. FROM A CAREFUL EXAMINATION OF
THE RECORD, I CONCLUDE THAT, WHILE COLONEL KINNAIRD DID STATE THAT ". .
. WE'RE GOING TO HAVE TO WORK DOWN TO THAT ONE (BOWLEGGED 13) AND SEE
HOW WE GET ALONG ON THE REST OF THEM", HE GAVE NO INDICATION THAT HE
WOULD MOVE ON BOWLEGGED 13 AND WHEN MR. HICKEY SAID IT WAS THE UNION'S
POSITION THAT THEY WERE AT IMPASSE AND WE CANNOT LIVE WITH YOUR
BOWLEGGED 13, THAT COLONEL KINNARID SIMPLY SAID, AS TO THEIR BEING AT
IMPASSE, "OKAY, I GUESS THAT'S IT". THAT RESPONDENT CONTEMPLATED NO
FURTHER BARGAINING IS, OF COURSE, CONFIRMED BY THE TOTAL ABSENCE, AFTER
MR. HICKEY'S STATEMENT THAT IT WAS THE UNION'S POSITION THAT THEY WERE
AT IMPASSE, OF ANY SUGGESTION OR REQUEST THAT THE PARTIES MEET
THEREAFTER.
TO BE SURE, COLONEL KINNAIRD'S STATEMENT THAT "WE'RE GOING TO HAVE TO
WORK DOWN TO THAT ONE (BOWLEGGED 13) AND SEE HOW WE GET ALONG ON THE
REST OF THEM" DEMONSTRATED NO GOOD FAITH ON HIS PART. HAD HE
ENTERTAINED THE SLIGHTEST INTENT TO RECEDED FROM BOWLEGGED 13, WHICH HE
HAD ADAMANTLY INSISTED THAT "HE (THE ADJUTANT GENERAL) HAS TO HAVE THAT
AUTHORITY . . . ", IT WOULD HAVE BEEN SIMPLE ENOUGH TO HAVE STATED THAT
"WE WILL AGREE TO DROP BOWLEGGED 13 IF WE CAN AGREE ON THE REST"; BUT,
INSTEAD, HE SAID ONLY "WE'LL . . . WORK DOWN TO THAT ONE (BOWLEGGED 13)
AND SEE HOW WE GET ALONG ON THE REST OF THEM".
HOWEVER, MY CONCLUSION THAT RESPONDENT DID NOT BARGAIN IN GOOD FAITH
IS BASED ON RESPONDENT'S TOTAL CONDUCT IN BARGAINING PURSUANT TO THE
ORDER OF THE PANEL. AS NOTED ABOVE, RESPONDENT'S PROPOSALS OF NOVEMBER
1, 1978, SHOWED AN ALMOST TOTAL DISDAIN FOR THE FSIP ORDER AND ITS
LIMITED AND GRUDGING ACCEPTANCE OF THE CONCEPT THAT TECHNICIANS MIGHT
WEAR CIVILIAN ATTIRE WAS THOROUGHLY CONDITIONED, AT EVERY TURN, BY THE
UNILATERAL DISCRETION OF THE ADJUTANT GENERAL. RESPONDENT MADE NO
COUNTER-PROPOSAL TO ITS NOVEMBER 1 PROPOSAL ON PARAGRAPH 1 UNTIL AFTER
LUNCH AND ITS NEW PROPOSAL CONTINUED TO PROVIDE IN PARAGRAPH 1A THAT
"TECHNICIANS . . . SHALL WEAR THE MILITARY UNIFORM . . . WHEN PERFORMING
TECHNICIAN DUTIES, AND WILL COMPLY WITH THE STANDARDS OF THE APPROPRIATE
SERVICE PERTAINING TO GROOMING AND THE WEARING OF THE MILITARY UNIFORM
EXCEPT AS PROVIDED FOR ELSEWHERE IN THIS SUPPLEMENTAL AGREEMENT."
PARAGRAPH 1B OF RESPONDENT'S COUNTER-PROPOSAL PROVIDED "ALL MEMBERS OF
THE BARGAINING UNIT WILL WEAR THE STANDARD CIVILIAN ATTIRE. EXCEPTIONS
TO THIS POLICY WILL BE AT THE DISCRETION OF THE ADJUTANT GENERAL"; BUT,
ALTHOUGH RECAST, THERE WAS NO QUESTION THAT THE ADJUTANT GENERAL
RETAINED UNILATERAL DISCRETION TO MAKE THE ULTIMATE DECISION AS TO
WHETHER CIVILIAN ATTIRE COULD BE WORN. THE FOLLOWING COLLOQUEY BETWEEN
MR. DENTON AND COLONEL KINNAIRD REFLECTS RESPONDENT'S ATTITUDE:
"DENTON: I THINK WHAT WE BASICALLY WANT, WHAT IS FAIR AND PROPER,
AND WHAT THAT ORDER SAYS
WE SHOULD HAVE-- AND THIS HAS ALL BEEN HASHED OUT IN THE PAST BY YOU
AND HICKEY AND ALL THESE
PEOPLE HERE, MUCH MORE THAN I HAVE
"KINNAIRD: YEAH, THE ASSOCIATION, 2 MEDIATIONS, A FACT FINDING AND
WE'RE RIGHT BACK WHERE
WE STARTED 18 MONTHS AGO." (RES. EXH. 2, P. 35)
WHEN RESPONDENT AGREED TO ACCEPT PARAGRAPH 1 OF THE FSIP ORDER IT
ATTACHED THE CONDITION THAT THE EMPLOYEES MAKE A ONE TIME ELECTION
WHETHER TO WEAR THE UNIFORM OR CIVILIAN CLOTHES, WHICH, INTERESTINGLY,
COLONEL KINNAIRD CHARACTERIZED AS "A HOOKER" (RES. EXH. 2, P. 41).
WHETHER THAT PORTION OF RESPONDENT'S COUNTER-PROPOSAL (G.C. EXH. 6,
PAGES 11-13) CONTAINING BOWLEGGED 13 HAD NOT BEEN SUBMITTED UNTIL NEAR
THE END OF THE NOVEMBER 8, BARGAINING SESSION (SEE RES. EXH. 2 P. 39,
TR. 60)OR WHETHER, BECAUSE ATTENTION HAD FIRST BEEN DIRECTED TO
PARAGRAPH 1, WHEN MR. HICKEY BECAME AWARE OF BOWLEGGED 13 (RES. EXH. 2,
P. 39) HE IMMEDIATELY STATED:
"HICKEY: WE'VE ALREADY GIVEN THE POSITION WE CAN'T AGREE WITH THAT
AT ALL. IT'S NOT
ACCEPTABLE." (RES. EXH. 2, P. 40).
BEARING IN MIND THAT PARAGRAPH 3 SPECIFIED WHEN THE MILITARY UNIFORM
MUST BE WORN AND THAT SUBPARAGRAPH 13 REQUIRED THE MILITARY UNIFORM BE
WORN:
"WHENEVER IT WOULD BE IN THE PUBLIC INTEREST OR IN THE BEST INTEREST
OF THE NATIONAL GUARD
AS DETERMINED BY THE ADJUTANT GENERAL." COLONEL KINNAIRD'S RESPONSES
WERE CERTAINLY LACKING IN GOOD FAITH. FIRST MR. HICKEY STATED,
"HICKEY: WE'RE JUST GIVING YOU THE FACT. IF THE ADJUTANT GENERAL
DECIDES IN THE BEST
INTEREST OF THE NATIONAL GUARD TO KEEP YOUR MILITARY UNIFORM. NONE
OF US NEEDS TO BE IN
THERE. WHY DON'T WE PUT IT ON THE LINE. YOU CAN BE IN A STANDARD OR
CIVILIAN ATTIRE WHENEVER
IT WOULD BE IN THE PUBLIC INTEREST OR BEST INTEREST OF THE NATIONAL
GUARD AS DETERMINED BY THE
ADJUTANT GENERAL. I MEAN BE DONE WITH ALL THE REST." MR. DENTON
STATED,
"DENTON: IT BOILS DOWN TO THAT ONE LITTLE SENTENCE." COLONEL
KINNAIRD REPLIED,
"KINNAIRD: IT GIVES HIM AN AUTHORITY THAT I THINK HE HAS . . ." MR.
DENTON AGAIN STATED,
"DENTON: IT'S JUST IN MY OPINION THAT IT GIVES HIM THE AUTHORITY TO
JUST THROW EVERYTHING
ELSE OUT THE WINDOW AND SAY WELL-- THAT'S THAT. COLONEL KINNAIRD
STRANGELY DENIED SUCH AUTHORITY,
"KINNAIRD: NAW" AGAIN MR. DENTON INSISTED,
"DENTON: SURE. SURE IT DOES. NOW WHETHER OR NOT HE WOULD EVER
EXERCISE IT I'M NOT GOING
TO SAY HE WOULD OR WOULD NOT. BUT IT GIVES HIM THAT-- TO WEAR
ANYTHING YOU WANT TO-- AND SAY
ALL
THIS OTHER STUFF IS GARBAGE-- THROW IT OUT AND RIGHT HERE." TO WHICH
COLONEL KINNAIRD AGAIN DENIED
"KINNAIRD: NO." (RES. EXH. 2, P. 40)
COLONEL KINNAIRD'S DENIAL THAT SUBPARAGRAPH 13 GAVE THE ATTORNEY
GENERAL COMPLETE AND UNFETTERED DISCRETION TO REQUIRE THAT UNIFORMS BE
WORN ANY TIME HE DETERMINED IT TO BE IN THE PUBLIC INTEREST OR IN THE
BEST INTEREST OF THE NATIONAL GUARD, NOT WHETHER HE WOULD OR WOULD NOT
SO EXERCISE THE AUTHORITY, AS THE PROVISION PLAINLY STATED, AFTER FIRST
ADMITTING THE AUTHORITY, HAD THE APPEARANCE OF SHAM SINCE, ONLY A FEW
MINUTES EARLIER THE PARTIES HAD BEEN ON THE BRINK OF IMPASSE WITH
RESPECT TO THE EQUIVALENT DISCRETIONARY AUTHORITY OF THE ADJUTANT
GENERAL UNDER PARAGRAPH 1 (SEE, RESP. EXH. 2, P. 36).
FINALLY, COLONEL KINNAIRD'S STEADFAST INSISTANCE THAT SUBPARAGRAPH 13
WAS REQUIRED (RES. EXH. 2, P. 35) BECAUSE "HE (THE ATTORNEY GENERAL) HAS
TO HAVE THAT AUTHORITY . . ." (RES. EXH. 2, P. 42), CF. NATIONAL LABOR
RELATIONS BOARD V. WOOSTER DIVISION OF BORG WARNER, 356 U.S. 342(1958),
WAS PART OF A PRECONCEIVED SCHEME TO AVOID COMPLIANCE WITH THE ORDER OF
THE PANEL. EVERY PROPOSAL RESPONDENT MADE WAS CONDITIONED BY THE
DISCRETION OF THE ATTORNEY GENERAL, THE TRUE INTENT OF WHICH GENERAL
WELLMAN HAD MADE PLAIN FROM HIS PRONOUNCEMENTS TO THE ENLISTED MEMBERS
OF THE UNION'S NEGOTIATING TEAM, WHEN HE HAD TOLD THEM, AS HE ADMITTED,
THAT HE WOULD DO ANYTHING TO KEEP THEM IN UNIFORM BECAUSE HE THOUGHT IT
WAS IN THEIR BEST INTEREST AND THE BEST INTEREST OF THE TECHNICIAN GROUP
AND THAT THE UNIFORM ISSUED WAS NOT IN THE BEST INTEREST OF THE
TECHNICIAN PROGRAM.
FOR ALL THE FOREGOING REASONS, I CONCLUDE THAT RESPONDENT DID NOT
BARGAIN IN GOOD FAITH ON NOVEMBER 8, 1978, PURSUANT TO THE ORDER OF THE
FEDERAL SERVICE IMPASSES PANEL WHICH DIRECTED THAT EMPLOYEES, WHILE
PERFORMING THEIR DAY-TO-DAY TECHNICIAN DUTIES, SHALL HAVE THE OPTION OF
WEARING EITHER THE MILITARY UNIFORM OR AN AGREED-UPON STANDARD CIVILIAN
ATTIRE, BY INSISTING, TO THE POINT OF IMPASSE, ON A PROVISION WHICH
PERMITTED RESPONDENT TO NULLIFY, TOTALLY, THE OPTION, WHICH THE PANEL
HAD DIRECTED BE ACCORDED THE EMPLOYEES, BY RESERVATION TO THE ATTORNEY
GENERAL OF COMPLETE DISCRETION TO REQUIRE THAT EMPLOYEES WEAR THE
MILITARY UNIFORM WHENEVER HE DETERMINED IT TO BE IN THE PUBLIC INTEREST
OR IN THE BEST INTEREST OF THE NATIONAL GUARD. RESPONDENT THEREBY
VIOLATED SECTION 19(A)(6) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
RESPONDENT ALSO THEREBY, DERIVATIVELY, VIOLATED SECTION 19(A)(1) OF
EXECUTIVE ORDER 11491, AS AMENDED.
5. VIOLATION OF SECTION 16(A)(5) OF THE STATUTE
THERE IS NO DISPUTE THAT ON JUNE 19, 1979, AND THEREAFTER, THE UNION,
IN BARGAINING ON A NEW CONTRACT, INCLUDED IN ITS DEMANDS A NEW ARTICLE
PROVIDING IN EFFECT, THAT EMPLOYEES HAVE THE OPTION OF WEARING EITHER
THE MILITARY UNIFORM OR AN AGREED UPON STANDARD CIVILIAN ATTIRE, SUCH
CIVILIAN CLOTHING TO BE PURCHASED BY EMPLOYEES WHO CHOOSE TO WEAR IT;
AND THAT RESPONDENT REFUSED TO BARGAIN ON THE UNION'S DEMAND. THE
UNION'S DEMAND WAS A CONDITION OF EMPLOYMENT WITHIN THE MEANING OF
SECTION 3(14) OF THE STATUTE, AN APPROPRIATE SUBJECT FOR COLLECTIVE
BARGAINING WITHIN THE MEANING OF SECTION 3(12) OF THE STATUTE, THE UNION
WAS, AND IS, A LABOR ORGANIZATION WHICH HAS BEEN ACCORDED EXCLUSIVE
RECOGNITION AND WAS ENTITLED TO NEGOTIATE PURSUANT TO SECTION 14 OF THE
STATUTE, AND RESPONDENT, BY ITS REFUSAL TO CONSULT OR NEGOTIATE, THEREBY
VIOLATED SECTION 16(A)(5) OF THE STATUTE AND, ALSO, THEREBY,
DERIVATIVELY, VIOLATED SECTION 16(A)(1) OF THE STATUTE (5 U.S.C.
7116(A)(5) AND (1), RESPECTIVELY). THE FACT THAT AN UNFAIR LABOR
PRACTICE PROCEEDING WAS THEN PENDING BEFORE THE AUTHORITY AS THE RESULT
OF AN ALLEGED PRIOR REFUSAL TO BARGAIN IN GOOD FAITH ON THE SAME ISSUE
NEITHER EXCUSED RESPONDENT'S REFUSAL TO BARGAIN IN JUNE, 1979, NOR IS
SUCH FACT A DEFENSE TO RESPONDENT'S ADMITTED REFUSAL TO BARGAIN. THE
UNION'S DEMAND IN 1979 WAS A NEW DEMAND MADE AS PART OF NEGOTIATIONS FOR
A NEW CONTRACT AS TO WHICH RESPONDENT WAS REQUIRED TO BARGAIN IN GOOD
FAITH. RESPONDENT'S REFUSAL TO BARGAIN ON THE UNION'S DEMAND FOR A NEW
ARTICLE WITH REGARD TO THE OPTION OF EMPLOYEES TO WEAR EITHER THE
MILITARY UNIFORM OR CIVILIAN ATTIRE VIOLATED SECTION 16(A)(5) AND (1)
NOTWITHSTANDING THAT RESPONDENT BARGAINED ON OTHER ISSUES; THAT THE
FEDERAL SERVICE IMPASSES PANEL ON OCTOBER 17, 1979, DECLINED
JURISDICTION TO CONSIDER A NEGOTIATION IMPASSE BECAUSE THE PANEL "HAS
DETERMINED THAT VOLUNTARY EFFORTS HAVE NOT BEEN EXHAUSTED" ( RESP. EXH.
3); AND THAT THE UNION'S DEMAND FOR THE UNIFORM ARTICLE HAD BEEN ONE OF
THE ITEMS INCLUDED IN THE UNION'S REQUEST TO THE PANEL. (G.C. EXH. 10).
SEE, NATIONAL LABOR RELATIONS BOARD V. WOOSTER DIVISION OF
BORG-WARNER, SUPRA.
HAVING FOUND THAT RESPONDENT VIOLATED SECTION 19(A)(1) OF EXECUTIVE
ORDER 11491, AS AMENDED, AS ALLEGED IN PARAGRAPHS 5, 6 AND 14 OF THE
COMPLAINT, BY CERTAIN ACTS AND STATEMENTS BY THE ADJUTANT GENERAL OF
KENTUCKY ON NOVEMBER 8, 1978; THAT RESPONDENT VIOLATED SECTIONS
19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED, BY ITS REFUSAL TO
BARGAIN IN GOOD FAITH ON NOVEMBER 8, 1978, PURSUANT TO AN ORDER OF THE
FEDERAL SERVICE IMPASSES PANEL, AS ALLEGED IN PARAGRAPHS 8, 9, AND 15 OF
THE COMPLAINT; AND THAT RESPONDENT VIOLATED SECTION 16(A)(1) AND (5) OF
THE STATUTE, 5 U.S.C. 7116(A)(1) AND (5), BY ITS REFUSAL TO BARGAIN ON,
AND AFTER, JUNE 19, 1979, CONCERNING THE UNION'S LAWFUL AND PROPER
DEMAND FOR A CONTRACT PROVISION CONCERNING THE OPTION TO WEAR THE
MILITARY UNIFORM OR CIVILIAN CLOTHING WHEN PERFORMING DAY-TO-DAY DUTIES
AS CIVILIAN TECHNICIANS, AS ALLEGED IN PARAGRAPHS 11 AND 16 OF THE
COMPLAINT, AN APPROPRIATE ORDER DESIGNED TO REMEDY THE UNFAIR LABOR
PRACTICES FOUND IS SET FORTH HEREINAFTER.
HAVING FOUND NO VIOLATION OF SECTION 16(A)(1) OR (6) OF THE STATUTE,
AS ALLEGED IN PARAGRAPHS 8, 9, AND 15, ON THE THEORY THAT INACTION BY
RESPONDENT AFTER JANUARY 11, 1979, CONSTITUTES A "CONTINUING VIOLATION"
AS TO CONDUCT WHICH OCCURRED ON NOVEMBER 8, 1978, THOSE PORTIONS OF
PARAGRAPHS 8, 9 AND 15 OF THE COMPLAINT ALLEGING A VIOLATION OF THE
STATUTE ARE HEREBY DISMISSED; AND HAVING FOUND NO BASIS FOR A VIOLATION
OF SECTION 16(A)(8) OF THE STATUTE, AS ALLEGED IN PARAGRAPH 12 AND 17 OF
THE COMPLAINT, THESE PARAGRAPHS OF THE COMPLAINT ARE HEREBY DISMISSED.
ORDER
PURSUANT TO SECTION 18(A)(7) OF THE STATUTE, 5 U.S.C. SECTION
7118(A)(7), AND SECTION 2423.26 OF THE FINAL RULES AND REGULATIONS, 5
U.S.C. CHAPTER XIV, FED. REG., VOL. 45, NO. 12, JANUARY 17, 1980; AND
SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, SECTION 203.26(B) OF
THE REGULATIONS THEREUNDER, 29 C.F.R. SECTION 203.26(B), AND SECTION
2400.2 OF THE FINAL RULES AND REGULATIONS, THE AUTHORITY HEREBY ORDERS
THAT THE KENTUCKY NATIONAL GUARD SHALL:
1. CEASE AND DESIST FROM:
A) MAKING STATEMENTS OR COMMENTS, BY THE ATTORNEY GENERAL OR ANY
OTHER AGENT, OFFICER OR REPRESENTATIVE OF RESPONDENT, TO MEMBERS OF THE
NEGOTIATING TEAM OF LOCAL R5-100, NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, OR TO ANY OTHER EMPLOYEE IN THE BARGAINING UNIT, THAT THE
WEARING OF CIVILIAN ATTIRE IN THE DAY-TO-DAY PERFORMANCE OF TECHNICIAN
DUTIES IS NOT IN THEIR BEST INTEREST OR IN THE BEST INTEREST OF THE
TECHNICIAN PROGRAM, THAT THE UNIFORM ISSUE WILL DESTROY THE NATIONAL
GUARD, THAT THE ATTORNEY GENERAL WILL DO ANYTHING TO KEEP THE EMPLOYEES
IN UNIFORM, OR ANY OTHER STATEMENT OR COMMENT OR LIKE IMPORT.
B) IN ANY LIKE OR RELATED MATTER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED, AND BY THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE TO INTERFERE WITH, RESTRAIN, OR
COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER
THE STATUTE.
C) REFUSING TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-100, THE EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE,
CONCERNING THE OPTION OF EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY
TECHNICIAN DUTIES, TO WEAR THE MILITARY UNIFORM OR AN AGREED-UPON
STANDARD CIVILIAN ATTIRE AND/OR THE ORDER OF THE FEDERAL SERVICE
IMPASSES PANEL DATED AUGUST 22, 1978.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED, AND OF THE
STATUTE:
A) POST AT EACH OF ITS FACILITIES, OFFICES, OR STATIONS IN THE
COMMONWEALTH OF KENTUCKY 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 ADJUTANT GENERAL, 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
CIVILIAN TECHNICIANS AND TO MEMBERS OF THE KENTUCKY NATIONAL GUARD ARE
CUSTOMARILY POSTED. THE ADJUTANT GENERAL SHALL TAKE REASONABLE STEPS TO
INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
B) UPON REQUEST, BARGAIN WITH NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-100, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES,
OR ANY OTHER EXCLUSIVE REPRESENTATIVE, CONCERNING THE OPTION OF
EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN DUTIES, TO WEAR
THE MILITARY UNIFORM OR AN AGREED-UPON STANDARD CIVILIAN ATTIRE AND/OR
THE ORDER OF THE FEDERAL SERVICE IMPASSES PANEL DATED JANUARY 22, 1978.
C) PURSUANT TO SECTION 2423.30 OF THE FINAL RULES AND REGULATIONS,
NOTIFY THE REGIONAL DIRECTOR OF REGION 4, SUITE 501, NORTH WING, 1776
PEACHTREE STREET, N.S., ATLANTA, GEORGIA 30309, IN WRITING, WITHIN 30
DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
WILLIAM B.DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 10, 1980
WASHINGTON, D.C.
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 THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE AND EXECUTIVE ORDER
11491, AS AMENDED
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT MAKE ANY STATEMENTS OR COMMENTS, BY THE ADJUTANT GENERAL
OR ANY OTHER AGENT, OFFICER OR REPRESENTATIVE, TO MEMBERS OF THE
NEGOTIATING TEAM OF LOCAL R5-100, NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, OR TO ANY OTHER EMPLOYEE IN THE BARGAINING UNIT, THAT THE
WEARING OF CIVILIAN ATTIRE IN THE DAY-TO-DAY PERFORMANCE OF TECHNICIAN
DUTIES IS NOT IN THEIR BEST INTEREST OR IN THE BEST INTEREST OF THE
TECHNICIAN PROGRAM, THAT THE UNIFORM ISSUE WILL DESTROY THE NATIONAL
GUARD, THAT THE ATTORNEY GENERAL WILL DO ANYTHING TO KEEP THE EMPLOYEES
IN UNIFORM, OR ANY OTHER STATEMENT OR COMMENT OF LIKE IMPORT.
WE WILL NOT REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH THE
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, THE EXCLUSIVE
REPRESENTATIVE OF OUR EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE,
CONCERNING THE OPTION OF EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY
TECHNICIAN DUTIES, TO WEAR THE MILITARY UNIFORM OR AN AGREED-UPON
STANDARD CIVILIAN ATTIRE AND/OR THE ORDER OF THE FEDERAL SERVICE
IMPASSES PANEL DATED AUGUST 22, 1978.
WE WILL, UPON REQUEST, BARGAIN WITH NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R5-100, THE EXCLUSIVE REPRESENTATIVE OF OUR
EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, CONCERNING THE OPTION
OF OUR EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN DUTIES,
TO WEAR AN AGREED-UPON STANDARD CIVILIAN ATTIRE OR THE MILITARY UNIFORM
AND/OR THE ORDER OF THE FEDERAL SERVICE IMPASSES PANEL DATED AUGUST 22,
1978.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEES IN THE EXERCISE OF ANY RIGHT ASSURED UNDER THE
STATUTE OR UNDER EXECUTIVE ORDER 11491, AS AMENDED.
KENTUCKY NATIONAL GUARD
DATED: . . . BY: . . .
ADJUTANT GENERAL
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 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 4, WHOSE
ADDRESS IS: SUITE 501, NORTH WING, 1776 PEACHTREE STREET, N.W.,
ATLANTA, GEORGIA 30309.
--------------- FOOTNOTES$ ---------------
/1/ THE AUTHORITY DOES NOT ADOPT THE ADMINISTRATIVE LAW JUDGE'S
STATEMENT IN FOOTNOTE 2 OF HIS DECISION REGARDING THE IMPORT OF SECTION
7116(A)(8) OF THE STATUTE.
/2/ FOR CONVENIENCE OF REFERENCE SECTIONS OF THE STATUTE ARE
HEREINAFTER ALSO REFERRED TO WITHOUT INCLUSION OF THE INITIAL "71", E.G.
SECTION 7116(A)(1) SIMPLY AS "16(A)(1)".
/3/ SECTION 16(A)(8) PROVIDES:
"(8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
CHAPTER."
WHETHER 16(A)(8) SHOULD BE REGARDED AS A CONGRESSIONAL ANATHEMA, OR
WHAT ITS PROPER PARAMETERS ARE IS INAPPROPRIATE FOR DETERMINATION IN
THIS CASE; BUT WHERE THE COMPLAINT ALLEGES A SPECIFIC VIOLATION OF
16(A)(5) OR (6) OF THE STATUTE AND, AT LEAST DERIVATIVELY OF 16(A)(1) OF
THE STATUTE IN EACH INSTANCE, NO PURPOSE IS ACHIEVED, SO FAR AS I CAN
SEE, OF FURTHER ALLEGING A VIOLATION OF SECTION 16(A)(8). EITHER THE
CONDUCT HAS BEEN SPECIFICALLY ALLEGED IN THIS CASE AS A VIOLATION OF
SECTION 16(A)(1), (5), OR (6) OR THERE IS NO ALLEGATION OF ANY SPECIFIC
VIOLATION EXCEPT THAT RESPONDENT HAS, IN SOME UNSPECIFIED MANNER,
OTHERWISE VIOLATED THE STATUTE, A PROPOSITION CONTRARY TO ALL CONCEPTS
OF DUE PROCESS OF LAW.
/4/ AS NOTED ABOVE, THE ALLEGATIONS OF THE COMPLAINT RELATE TO UNFAIR
LABOR PRACTICES UNDER THE ORDER, AS WELL AS TO UNFAIR PRACTICES UNDER
THE STATUTE. AS TO UNFAIR LABOR PRACTICES WHICH OCCURRED PRIOR TO THE
EFFECTIVE DATE OF THE STATUTE, SECTION 35(G) OF THE STATUTE SPECIFICALLY
PROVIDES, IN PART, THAT "POLICIES, REGULATIONS, AND PROCEDURES
ESTABLISHED UNDER EXECUTIVE ORDER 11491 . . . IN EFFECT ON THE EFFECTIVE
DATE OF THIS CHAPTER, SHALL REMAIN IN FULL FORCE AND EFFECT . . .";
AND, PURSUANT TO SECTION 4(F) AND 34 OF THE STATUTE ALL CHARGES OF
ALLEGED UNFAIR LABOR PRACTICES UNDER THE ORDER FILED WITH THE AUTHORITY
ON AND AFTER JANUARY 11, 1979, WILL BE PROCESSED IN ACCORDANCE WITH
PARTS 2423 AND 2429 OF THE REGULATIONS.
/5/ I AM AWARE THAT RESPONDENT PRESENTED PROPOSALS AT THE MEETING IN
PARTS. OF GENERAL COUNSEL EXHIBIT 6, RESPONDENT FIRST SUBMITTED PAGES
4-10 AND LATER PAGES 1-3 AND 11-13; HOWEVER, AS RESPONDENT HAD
SUBMITTED ITS INITIAL PROPOSAL ON NOVEMBER 1, I DRAW NO INFERENCE
WHATEVER FROM THE ORDER OF PRESENTATION OF RESPONDENT'S COUNTER
PROPOSALS WHICH, WHEN COMPLETED, MAKE UP GENERAL COUNSEL'S EXHIBIT 6.
/6/ THE PANEL, AS TO IDENTICAL ORDERS HAS SO STATED AND BY
SUPPLEMENTARY DECISION AND ORDER HAS ADDED A FURTHER PROVISION THAT "THE
TECHNICIAN SHALL HAVE THE OPTION . . . ON A DAY-TO-DAY BASIS" ARIZONA
AIR NATIONAL GUARD, 79 FSIP 3; OREGON ARMY/AIR NATIONAL GUARD, 79 FSIP
4 (G.C. EXH. 12).