Division of Military and Naval Affairs State of New York (Albany, NY) (Respondent) and New York State Council of Association of Civilian Technicians, Inc. (Charging Party)
[ v07 p321 ]
07:0321(51)CA
The decision of the Authority follows:
7 FLRA No. 51
DIVISION OF MILITARY AND NAVAL AFFAIRS
STATE OF NEW YORK, (ALBANY, NEW YORK)
Respondent
and
NEW YORK STATE COUNCIL OF ASSOCIATION
OF CIVILIAN TECHNICIANS, INC.
Charging Party
Case Nos.1-CA-195
1-CA-196
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED RECOMMENDED DECISION
AND ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT
HAD NOT ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES AND ORDERED THAT THE
CASE BE DISMISSED IN ITS ENTIRETY. THEREAFTER THE GENERAL COUNSEL FILED
EXCEPTIONS WITH RESPECT TO THE JUDGE'S DECISION AND ORDER.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD, THE
AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS, AND
RECOMMENDATION. /1/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NOS. 1-CA195 AND
1-CA-196 BE, AND THEY HEREBY ARE, DISMISSED.
ISSUED, WASHINGTON, D.C., DECEMBER 15, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
RICHARD E. ROWLANDS, ESQUIRE
FOR THE RESPONDENT
PAUL E. STANZLER, ESQUIRE
FOR THE GENERAL COUNSEL
BEFORE: LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), 92 STAT.1191, 5 U.S.C. 7101 ET SEQ.,
AND THE RULES AND REGULATIONS ISSUED THEREUNDER. IT WAS INSTITUTED BY
THE ISSUANCE OF AN ORDER CONSOLIDATING CASES, COMPLAINT, AND NOTICE OF
HEARING ON FEBRUARY 29, 1980, BASED UPON CHARGES FILED ON NOVEMBER 14,
1979, AND FEBRUARY 25, 1980. THE COMPLAINT WAS AMENDED ON THE DATE OF
HEARING. /2/
IN CASE NO. 1-CA-196 IT WAS ALLEGED THAT THE RESPONDENT HAS, SINCE ON
OR ABOUT NOVEMBER 5, 1979, ENGAGED IN A COURSE OF BAD FAITH BARGAINING
WITH THE CHARGING PARTY (ALSO REFERRED TO HEREIN AS THE UNION, OR ACT)
IN VIOLATION OF SECTIONS 7116(A)(1) AND (5) OF THE STATUTE, BY DEMANDING
THE RENEGOTIATION OF CERTAIN CONTRACT ARTICLES PREVIOUSLY AGREED TO
DURING NEGOTIATIONS PURSUED BY THE PARTIES PRIOR TO THE SUBMISSION OF
THREE UNRESOLVED ISSUES TO THE FEDERAL SERVICE IMPASSES PANEL (PANEL);
BY SEEKING TO AVOID OR DELAY REACHING AN AGREEMENT BY DEMANDING THE
RENEGOTIATION OF ARTICLES PREVIOUSLY AGREED TO; BY ATTEMPTING TO
UTILIZE THE PROCESSES OF THE PANEL TO AVOID THE OBLIGATION TO NEGOTIATE;
AND BY "OTHERWISE ENGAGING IN A COURSE OF CONDUCT CALCULATED TO
FRUSTRATE THE UNION'S ATTEMPTS TO CONSUMMATE A MEANINGFUL COLLECTIVE
BARGAINING AGREEMENT." /3/
IN CASE NO. 1-CA-195 IT WAS ALLEGED THAT THE RESPONDENT, ON OR ABOUT
NOVEMBER 5 AND 6, 1979, VIOLATED SECTIONS 7116(A)(1) AND (8) OF THE
STATUTE BY FAILING OR REFUSING TO GRANT OFFICIAL TIME TO EMPLOYEE
MEMBERS OF THE UNION'S BARGAINING COMMITTEE FOR TIME SPENT IN ACTIVITY
"REASONABLY RELATED" TO THE NEGOTIATION OF A COLLECTIVE BARGAINING
AGREEMENT. DURING THE HEARING COUNSEL FOR THE GENERAL COUNSEL
STIPULATED THAT OFFICIAL TIME CLAIMED RELATED SOLELY TO A THREE TO FOUR
HOUR PERIOD OF TIME DURING THE AFTERNOON OF NOVEMBER 5, 1979.
IN RESPONSE TO THESE ALLEGATIONS COUNSEL REPRESENTING THE RESPONDENT
ARGUES THAT THE EVIDENCE FAILED TO ESTABLISH THAT THE RESPONDENT ENGAGED
IN A COURSE OF BAD FAITH BARGAINING AS ALLEGED. COUNSEL FOR THE
RESPONDENT ALSO TAKES THE POSITION THAT THE REFUSAL TO GRANT OFFICIAL
TIME TO EMPLOYEE MEMBERS OF THE UNION'S BARGAINING COMMITTEE FOR TIME
SPENT IN PREPARING FOR CONTRACT NEGOTIATIONS WAS IN ACCORDANCE WITH A
LONGSTANDING PRIOR PRACTICE OF THE PARTIES; AND THAT THE GRANTING OF
OFFICIAL TIME FOR SUCH PURPOSE IS NOT REQUIRED BY SEC. 7131(A) OF THE
STATUTE.
THE RESPONDENT AND THE GENERAL COUNSEL, FEDERAL LABOR RELATIONS
AUTHORITY, WERE REPRESENTED BY COUNSEL AND THE PARTIES WERE AFFORDED
FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, AND EXAMINE AND
CROSS-EXAMINE WITNESSES. POST-HEARING BRIEFS WERE RECEIVED FROM COUNSEL
REPRESENTING THE GENERAL COUNSEL AND COUNSEL REPRESENTING THE
RESPONDENT. THESE HAVE BEEN DULY CONSIDERED. BASED UPON THE ENTIRE
RECORD HEREIN, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR
DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE ADDUCED AT THE
HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATION:
CONTRACT NEGOTIATIONS IN 1977 AND ISSUES SUBMITTED TO THE
FEDERAL SERVICE IMPASSES PANEL
THE UNION IS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ALL NEW YORK
ARMY AND AIR FORCE NATIONAL GUARD TECHNICIANS EXCEPT SUPERVISORS,
MANAGEMENT OFFICIALS, AND TECHNICIANS ENGAGED IN NON-CLERICAL PERSONNEL
WORK. /4/ A TWO-YEAR COLLECTIVE BARGAINING AGREEMENT EXECUTED BY THE
PARTIES EXPIRED ON OCTOBER 3, 1977 (JT.EXH.29). THE PARTIES HAVE SINCE
CONTINUED TO OPERATE UNDER THE PROVISIONS OF THE AGREEMENT. IT WAS
STIPULATED DURING THE HEARING THAT THE AGREEMENT HAS GOVERNED THEIR
LABOR RELATIONS DURING ALL TIMES DEEMED PERTINENT IN THIS CASE.
PRELIMINARY NEGOTIATIONS DESIGNED TO PRODUCE A NEW AGREEMENT
COMMENCED ON AUGUST 3, 1977. FREDERICK S. TEDESCO, NEW YORK STATE
CHAIRMAN OF ACT, SERVED AS THE CHIEF NEGOTIATOR FOR THE UNION. COLONEL
JOHN E. BLEWETT WAS THE CHIEF NEGOTIATOR FOR THE RESPONDENT, AND HAS
SINCE HELD THE POSITION. AT THE AUGUST 3, 1977 MEETING AND THREE OTHER
MEETINGS SHORTLY THEREAFTER, THE PARTIES ENDEAVORED TO ESTABLISH GROUND
RULES FOR THE 1977 NEGOTIATIONS BUT WERE UNABLE TO REACH AGREEMENT ON
THE EFFECT OF ARTICLES NEGOTIATED. THE UNION FELT THAT THE PARTIES
SHOULD EXECUTE AN AGREEMENT ON ALL ARTICLES NEGOTIATED WITH THE
EXCEPTION OF THOSE INVOLVING IMPASSE ISSUES. THE RESPONDENT TOOK THE
POSITION THAT THERE COULD BE NO CONTRACT UNTIL ALL ISSUES WERE RESOLVED
BY THE PARTIES. THE PARTIES ENTERED INTO NEGOTIATIONS WITHOUT RESOLVING
THIS QUESTION. THE GROUND RULES, FINALLY AGREED UPON ON OCTOBER 14,
1977, REFLECT NO REFERENCE TO THE LEGAL EFFECT TO BE GIVEN TO EACH
CONTRACT ARTICLE FOLLOWING TENTATIVE AGREEMENT (JT.EXH.31). THESE RULES
DID PROVIDE THAT THE OLD CONTRACT LANGUAGE WOULD BE USED AS A BASIS FOR
DEVELOPING A NEW AGREEMENT. AS OF THE FALL OF 1977, THE PARTIES HAD
TENTATIVELY AGREED UPON A NUMBER OF CONTRACT ARTICLES.
ON MARCH 27, 1978, THE UNION REQUESTED THE PANEL TO CONSIDER THREE
IMPASSE ISSUES UNDER SECTION 17 OF EXECUTIVE ORDER 11491. THESE RELATED
TO THE TERMS UNDER WHICH THE COLLECTIVE BARGAINING AGREEMENT WOULD BE
EXTENDED; PROPOSED GUIDELINES RELATING TO THE PREPARATION OF TECHNICIAN
PERFORMANCE RATINGS; AND ISSUES RELATING TO THE WEARING OF MILITARY
UNIFORMS BY TECHNICIANS. ON JUNE 7, 1978, THE PARTIES SUPPLIED TO THE
PANEL'S FACTFINDER, CONTRACT ARTICLES THAT THE PARTIES PREVIOUSLY HAD
"TENTATIVELY AGREED" UPON, AND REPRESENTED TO THE FACTFINDER THAT THE
ARTICLES HAD BEEN SIGNED, BUT WERE NOT IN EFFECT (JT.EXH.1).
WHILE THE PANEL WAS CONSIDERING THE ISSUES SUBMITTED, THE PARTIES
CARRIED ON DISCUSSIONS CONCERNING THE IMPLEMENTATION OF NEGOTIATED MERIT
PROMOTION PROVISIONS TENTATIVELY AGREED TO IN 1977. THE UNION TOOK THE
POSITION THAT THERE COULD BE NO IMPLEMENTATION UNTIL THE ENTIRE
AGREEMENT WAS EXECUTED BY THE PARTIES. ON THIS ISSUE MR. TEDESCO WROTE
TO THE RESPONDENT ON AUGUST 24, 1978, AND STATED: "THIS IS ONE OF THE
NEGOTIATED ITEMS WHICH ARE AMONG THE ITEMS THAT HAVE BEEN AGREED TO.
THIS CANNOT BE PUT INTO EFFECT UNTIL MANAGEMENT IS READY TO SIGN THE
CONTRACT." (TR. 130, R.EXH. 1).
ON JANUARY 9, 1979, THE PANEL ORDERED THE RESPONDENT TO WITHDRAW
RESPONDENT'S PROPOSAL RELATING TO THE EXTENSION OF THE COLLECTIVE
BARGAINING AGREEMENT; ORDERED THE PARTIES TO ADOPT THE UNION PROPOSAL
RELATING TO PERFORMANCE RATINGS; TO ADOPT INTO THEIR COLLECTIVE
BARGAINING AGREEMENT CERTAIN LANGUAGE RELATING TO THE WEARING OF THE
UNIFORM; AND TO NEGOTIATE CONCERNING THE CIRCUMSTANCES AND OCCASIONS
FOR WHICH THE WEARING OF THE MILITARY UNIFORM MAY BE REQUIRED (JT.EXH.
30). SHORTLY AFTER THE ISSUANCE OF THE PANEL'S DECISION AND ORDER THE
RESPONDENT WROTE TO THE PANEL TO ADVISE THAT THE RESPONDENT ACCEPTED THE
PANEL'S DETERMINATIONS REGARDING WITHDRAWAL OF RESPONDENT'S PROPOSAL
WITH RESPECT TO THE EXTENSION OF THE CONTRACT, AND CONCERNING THE
ADOPTION OF THE UNION'S PROPOSAL REGARDING TECHNICIAN PERFORMANCE
RATINGS. HOWEVER, THE RESPONDENT REFUSED TO COMPLY WITH THE PANEL'S
DECISION AND ORDER WITH REGARD TO ISSUES PERTAINING TO THE WEARING OF
THE MILITARY UNIFORM. THE UNION WAS ADVISED IN WRITING OF THE
RESPONDENT'S DECISION TO ACCEPT THOSE PORTIONS OF THE PANEL'S DECISION
AND ORDER MENTIONED (TR. 78). THE FOLLOWING TESTIMONY OF COLONEL
BLEWETT REFLECTS PROOF OF THE RESPONDENT'S ACQUIESCENCE REGARDING
PORTIONS OF THE PANEL'S DECISION AND ORDER WHICH DID NOT PERTAIN TO THE
WEARING OF THE MILITARY UNIFORM:
Q. AFTER MANAGEMENT RECEIVED THIS DECISION AND ORDER, WHAT DID YOU
DO THEN?
A. WE INFORMED THE IMPASSE PANEL THAT WE ACCEPTED THE TWO AND WE
ALSO INFORMED THE UNION
THAT WE ACCEPTED THE TWO; THE EXTENSION OF THE CONTRACT WE WOULD
WITHDRAW AND ALSO THAT WE
ACCEPTED THE PROPOSAL ON THE PERFORMANCE RATINGS, AND THAT THE
UNIFORM ISSUE WAS GOING TO GO
TO APPEAL . . . (TR. 78). /5/
THEREAFTER, ON THE BASIS OF A MARCH 15, 1979 CHARGE AND AN AMENDED
CHARGE FILED ON OCTOBER 17, 1979, THE UNION ISSUED AN UNFAIR LABOR
PRACTICE COMPLAINT IN CASE NO. 1-CA-19, ALLEGING VIOLATIONS OF SECTIONS
7116(A)(1) AND (6) OF THE STATUTE PREDICATED UPON THE RESPONDENT'S
REFUSAL TO COMPLY WITH THE LIMITED PORTION OF THE PANEL'S DECISION AND
ORDER WHICH REQUIRED THE UNION TO ADOPT INTO THEIR COLLECTIVE BARGAINING
AGREEMENT CERTAIN LANGUAGE RELATIVE TO THE WEARING OF THE UNIFORM. /6/
EVENTS LEADING TO RESUMPTION OF CONTRACT NEGOTIATIONS IN
1979
ON MARCH 29, 1979, COLONEL BLEWETT RECEIVED A LETTER FROM MR.
FREDERICK YOUNG WHEREIN MR. YOUNG ADVISED THAT HE HAD BECOME THE CHIEF
NEGOTIATOR FOR THE UNION. MR. YOUNG INDICATED THAT HE WISHED TO RETURN
TO THE BARGAINING TABLE TO RESUME CONTRACT NEGOTIATIONS. ON APRIL 12,
1979, COLONEL BLEWETT WROTE TO YOUNG TO ADVISE THAT HE WOULD RESUME
BARGAINING. SUBSEQUENTLY, ON MAY 15, 1979, MR. TEDESCO, WHO HAD BEEN
THE CHIEF NEGOTIATOR, AND WHO WAS THE STATE CHAIRMAN OF ACT, FORWARDED
EIGHT PROPOSALS TO MANAGEMENT, OSTENSIBLY DEALING WITH IMPACT AND
IMPLEMENTATION BARGAINING RELATING TO A CONVERSION TO FULL TIME MILITARY
(CFTM) TEST PROGRAM (JT.EXHS. 2 AND 3). /7/ THE LETTER WAS ADDRESSED TO
COLONEL CLARENCE WALLACE, TECHNICIAN PERSONNEL OFFICER, BY MR. TEDESCO.
ON MAY 21, 1979, COLONEL WALLACE FORWARDED IT TO COLONEL BLEWETT,
RESPONDENT'S CHIEF NEGOTIATOR. THE PROPOSALS FORWARDED TO THE
RESPONDENT IN CONNECTION WITH THE CFTM TEST PROGRAM WOULD HAVE OPERATED
TO GENERATE SIGNIFICANT CHANGES IN A NUMBER OF CONTRACT ARTICLES
TENTATIVELY AGREED TO BY THE PARTIES DURING CONTRACT NEGOTIATIONS IN THE
FALL OF 1977. /8/
ON MAY 17, 1979, MANAGEMENT AND THE UNION EXECUTED A MEMORANDUM OF
AGREEMENT DEALING WITH UNION DUES DEDUCTIONS. THE AGREEMENT WAS
REQUIRED BECAUSE THE STATUTE HAD THE EFFECT OF ABROGATING ARTICLE 20,
TENTATIVELY AGREED TO IN 1977 (JT.EXH. 26). THE LAST PARAGRAPH OF THE
AGREEMENT REFLECTS AN INTENT THAT THE AGREEMENT BE SUBJECT TO CHANGE "AS
A RESULT OF FUTURE NEGOTIATIONS."
ON JUNE 5, 1979, MANAGEMENT, THROUGH COLONEL WALLACE, WROTE TO MR.
TEDESCO IN RESPONSE TO THE EIGHT PROPOSALS FORWARDED CONCERNING THE
CFTM
PROGRAM (JT.EXH. 4). IN PARAGRAPH (C) OF THE LETTER COLONEL WALLACE
SPECIFICALLY STATED THAT THE FIFTH UNION PROPOSAL "SHOULD PROBABLY BE
INTRODUCED AT NORMAL NEGOTIATIONS AS IT IS NOT GERMANE TO CFTM
EXCLUSIVELY." OTHER PROPOSALS WERE SAID TO BE NOT NEGOTIABLE. HOWEVER,
IN THIS SAME LETTER MANAGEMENT ATTEMPTED TO SET UP A MEETING WITH MR.
TEDESCO TO DISCUSS UNION PROPOSALS. MR. TEDESCO REPLIED ON JUNE 9,
1979, STATING THAT THE UNION INTENDED TO PETITION THE AUTHORITY FOR THE
PURPOSE OF OBTAINING A DETERMINATION CONCERNING THE NEGOTIABILITY OF THE
EIGHT PROPOSALS FORWARDED BY MR. TEDESCO ON MAY 15, 1979 (JT.EXH. 5).
ON JUNE 13, 1979, COLONEL BLEWETT RECEIVED A LETTER FROM FREDERICK R.
YOUNG (JT.EXH. 6). YOUNG'S SIGNATURE INDICATED THAT HE SIGNED THE
LETTER AS THE UNION'S CHIEF NEGOTIATOR. HE FORWARDED TWO PROPOSALS
WHICH HE ASSERTED HAD BEEN DISCUSSED BY MR. TEDESCO WITH RESPONDENT'S
TECHNICIAN PERSONNEL OFFICE. THE FIRST SET FORTH THE UNION PROPOSAL
RELATING TO PERFORMANCE RATINGS WHICH THE PANEL HAD PREVIOUSLY ORDERED
THE PARTIES TO ADOPT, AND THE SECOND DEALT WITH ISSUES PERTAINING TO THE
WEARING OF THE MILITARY UNIFORM. MR. YOUNG ALSO STATED: "FURTHER, IN
ADDITION TO THE ABOVE, WE SHOULD DISCUSS THOSE ITEMS THAT REQUIRE CHANGE
DUE TO THE CIVIL SERVICE REFORM ACT."
ON JUNE 19, 1979, COLONEL WALLACE REPLIED TO MR. YOUNG'S JUNE 13TH
LETTER AND STATED IN PART: "SIMULTANEOUSLY, THIS DIVISION HAS BEEN
RECEIVING PROPOSALS FROM THE STATE CHAIRMAN OF ACT, INC., ON IDENTICAL
ISSUES. CONSEQUENTLY, WE ARE IN A QUANDARY AS TO WHOM TO RESPOND TO AND
WITH WHOM TO ARRANGE FOR NEGOTIATIONS." (JT.EXH. 7). MAJOR GENERAL VITO
J. CASTELLANO, A REPRESENTATIVE OF THE RESPONDENT, RECEIVED A LETTER
RESPONSE DATED JUNE 22, 1979, FROM MR. TEDESCO (JT.EXH. 8). MR. TEDESCO
STATED THAT HE WAS THE "CHIEF NEGOTIATOR" FOR THE UNION. HE THEN
REFERRED TO COLONEL WALLACE'S JUNE 19, 1979, LETTER AND STATED THAT
THERE WERE TWO SEPARATE ONGOING NEGOTIATIONS, THAT IS NEGOTIATIONS
RELATING TO THE CONTRACT AND NEGOTIATIONS PERTAINING TO THE
IMPLEMENTATION OF THE CFTM TEST PROGRAM. HE ALSO TOOK THE POSITION THAT
THERE WERE ONLY THREE ITEMS TO BE COMPLETED IN THE CONTRACT
NEGOTIATIONS, BUT THAT IT WAS NECESSARY TO MAKE ALL CHANGES REQUIRED BY
THE CIVIL SERVICE REFORM ACT.
ON JULY 2, 1979, COLONEL WALLACE RESPONDED WITH A LETTER TO MR.
TEDESCO (JT.EXH. 9). HE ATTEMPTED TO CLARIFY THE CONFUSION AS TO THE
IDENTITY OF THE CHIEF NEGOTIATOR FOR ACT. HE ALSO NOTED, "(Y)OU CITED
THERE ARE ONLY THREE ISSUES TO RESOLVE IN THE PENDING NEGOTIATIONS TO
THE AGREEMENT THAT EXPIRED IN OCTOBER OF 1977, WHILE MAKING THE CHANGES
REQUIRED AS THE RESULT OF PL 95-454; THE TASK IS NO SMALL ONE." HE WENT
ON TO STATE: "YOUR RESPONSE OF 22 JUNE 1979 HAS NOT CLARIFIED THE
PRESENT STATUS OF NEGOTIATIONS, WHERE APPLICABLE. IN YOUR REQUEST TO
NEGOTIATE EIGHT ITEMS AS THE RESULT OF CONVERSION TO FULL TIME MILITARY
(TEST) YOU HAVE INCLUDED ISSUES THAT ARE COMMON TO THE NORMAL
NEGOTIATION PROCEDURE. WITH WHOM WILL THESE ISSUES BE RESOLVED, YOURSELF
OR THE UNION APPOINTED CHIEF NEGOTIATOR?" IN RESPONSE TO JOINT EXHIBIT
9, MR. YOUNG CORRESPONDED WITH COLONEL BLEWETT ON JULY 28, 1979, STATING
THAT "I AM THE SOLE REPRESENTATIVE OF THE ASSOCIATION FOR MATTERS
RELATING TO CONTRACT NEGOTIATIONS." (JT.EXH. 10). IN THIS LETTER MR.
YOUNG FORWARDED PROPOSALS DEALING WITH THE PANEL MANDATE ON TECHNICIAN
PERFORMANCE RATINGS AND ISSUES RELATING TO THE WEARING OF THE MILITARY
UNIFORM. HE ALSO SUBMITTED TWO ADDITIONAL REPLACEMENT ARTICLES FOR
ARTICLE 12 (GRIEVANCE PROCEDURE) AND ARTICLE 17 (ARBITRATION) IN AN
EFFORT "TO BRING THE AGREEMENT INTO LINE WITH TITLE 7 OF THE CIVIL
SERVICE REFORM ACT." AT THE END OF THIS LETTER MR. YOUNG MADE TWO
REQUESTS TO MANAGEMENT: "FIRST, THAT WE RETURN TO THE BARGAINING TABLE
SOMETIME DURING THE PERIOD OF 3-15 SEPTEMBER 1979. LASTLY THAT I BE
FURNISHED ANY COUNTER-PROPOSALS TEN (10) DAYS PRIOR TO ANY ESTABLISHED
MEETING DATE."
ON AUGUST 1, 1979, COLONEL BLEWETT RESPONDED TO MR. YOUNG'S JULY 28TH
LETTER (JT.EXH. 11). COLONEL BLEWETT SUGGESTED THAT THE PARTIES MEET
PRIOR TO INSTITUTING ACTUAL NEGOTIATIONS IN ORDER TO ESTABLISH NECESSARY
GROUND RULES. HE WENT ON TO SAY, "I VIEW SUCH A MEETING AS ABSOLUTELY
NECESSARY DUE TO IMPLEMENTATION OF PL 95-454, THE RESULT OF WHICH WILL
ENTAIL SIGNIFICANT CHANGES TO PREVIOUS AGREEMENTS, AND THE FACT THAT YOU
ARE THE NEWLY APPOINTED CHIEF NEGOTIATOR FOR THE UNION. BOTH OF THESE
OCCURRENCES WILL IMPACT UPON THE NEGOTIATION PROCESS." COLONEL BLEWETT
ALSO SAID: "ADDITIONALLY, AT THE PRESENT TIME AS RECENTLY AS 24 JULY
1979 THE STATE CHAIRMAN REMAINS ADAMANT THAT HE WILL 'NEGOTIATE MATTERS
RELATIVE TO CFTM, RIF PROCEDURES, ETC.' AND MAINTAINS THAT SUCH
NEGOTIATION, BY HIM, IS APPROPRIATE. I WOULD HOPE THAT ALL ISSUES FOR
WHICH NEGOTIATION IS APPROPRIATE WOULD SURFACE DURING OUR NEGOTIATIONS.
RESOLUTION AS TO WHOM WE WILL BE DEALING WITH MUST BE LEFT IN YOUR HANDS
AT THIS JUNCTURE."
ON SEPTEMBER 13, 1979, REPRESENTATIVES OF THE UNION AND MANAGEMENT
MET TO DISCUSS FUTURE NEGOTIATIONS. MR. YOUNG AND MR. TEDESCO
REPRESENTED THE UNION, AND COLONEL BLEWETT, COLONEL WALLACE, COLONEL
BECK AND MR. ROWLANDS REPRESENTED THE RESPONDENT. THE RESPONDENT WAS
INFORMED THAT MR. YOUNG WAS THE CHIEF NEGOTIATOR, AND THAT HE WOULD
SPEAK FOR THE UNION DURING NEGOTIATIONS. /9/ AT THIS MEETING A LETTER
DATED SEPTEMBER 13, 1979, ADDRESSED TO THE "CHIEF NEGOTIATOR" BY COLONEL
BLEWETT WAS GIVEN TO MR. YOU (JT.EX. 12). THE LETTER CONTAINED A
COUNTERPROPOSAL RELEVANT TO TECHNICIAN PERFORMANCE RATINGS AND A
STATEMENT RELATIVE TO THE UNION'S PROPOSAL RELATING TO THE WEARING OF
THE MILITARY UNIFORM. /10/ THE UNION OBJECTED TO THE PROPOSAL BECAUSE
IT REQUIRED THE UNION TO ACCEPT THE CONTENT OF FUTURE REGULATORY
ISSUANCES (TR. 40-41, 86-87). THE RESPONDENT DID NOT REFUSE TO ACCEPT
THE PANEL'S LANGUAGE REGARDING TECHNICIAN PERFORMANCE RATINGS (TR. 86),
AND MR. YOUNG ACKNOWLEDGED THAT HE WAS TOLD THAT THE RESPONDENT WOULD
ABIDE BY THE DECISION AND ORDER OF THE PANEL ON ISSUES OTHER THAN THE
ONE DEALING WITH THE WEARING OF THE MILITARY UNIFORM, AND FURTHER THAT
HE HAD BEEN TOLD THIS REPEATEDLY BY MANAGEMENT (TR. 37).
RESPONDENT'S SEPTEMBER 13, 1979 LETTER FURTHER STATED THAT
MANAGEMENT'S COUNTERPROPOSAL TO THE UNION'S PROPOSAL RELATIVE TO
GRIEVANCE PROCEDURES WOULD BE FORWARDED TO THE UNION PRIOR TO FORMAL
NEGOTIATIONS, AND THAT "THESE ISSUES, AS WELL AS OTHER SUBSTANTIVE AREAS
IMPACTED BY PUBLIC LAW 95-454, MAY BE ADDRESSED IN DEPTH DURING
NEGOTIATIONS." THE PARTIES DISCUSSED DISPOSITION OF THE EIGHT CFTM TEST
PROGRAM ISSUES RAISED BY MR. TEDESCO IN HIS MAY 15, 1979 LETTER TO
COLONEL WALLACE. COLONEL BLEWETT TOOK THE POSITION THAT THE CFTM TEST
PROGRAM SHOULD NOT PLAY A ROLE DURING CONTRACT NEGOTIATIONS. THE UNION
DISAGREED AND FELT THAT THE CFTM TEST PROGRAM SHOULD BE MADE THE SUBJECT
OF NEGOTIATIONS (TR. 144).
AT THE SEPTEMBER 13TH MEETING THE UNION INFORMED RESPONDENT'S
REPRESENTATIVES THAT ARTICLES TENTATIVELY AGREED TO IN 1977 WERE BINDING
ON MANAGEMENT BECAUSE THEY HAD BEEN INITIALED BY MR. TEDESCO AND COLONEL
BLEWETT. MANAGEMENT DENIED THAT INITIALING DURING THE EARLIER 1977
NEGOTIATIONS HAD SUCH AN EFFECT. /11/ ALSO, MANAGEMENT TOOK THE
POSITION THAT IT COULD, IF IT SO DESIRED, RETURN TO ANY OF THE ARTICLES
INITIALED BY THE PARTIES IN 1977 (TR. 84). MANAGEMENT EXPRESSED THE
DESIRE TO REVIEW THE ENTIRE CONTRACT IN THE LIGHT OF CHANGES WHICH
OCCURRED OVER THE PERIOD INTERVENING AFTER THE FALL OF 1977. ADDITIONAL
GROUND RULES CONCERNING THE CONTRACT NEGOTIATIONS WERE DISCUSSED, AND
NEGOTIATIONS WERE SCHEDULED TO BEGIN ON NOVEMBER 5, 1979.
ON SEPTEMBER 13TH, IMMEDIATELY AFTER THE MEETING, COLONEL BLEWETT
WROTE TO MR. YOUNG TO OUTLINE HIS VIEW OF AREAS OF AGREEMENT REACHED
DURING THE MEETING. (G.C.EXH. 2, TR. 105-106). IN THE LETTER COLONEL
BLEWETT NOTED THAT MR. YOUNG HAD ADVISED DURING THE MEETING "THAT THE
UNION HAS NO OTHER PROPOSALS TO BE SUBMITTED FOR CONSIDERATION AT THIS
TIME OTHER THAN THE THREE ALREADY RECEIVED BY (MR. YOUNG'S) . . . LETTER
OF 28 JULY 1979."
THE LETTER ALSO INDICATED THAT "THE ISSUE OF CONVERSION TO FULL TIME
MILITARY . . . PROGRAM WAS RAISED AND IT WAS MUTUALLY AGREED THAT IT WAS
NOT SUITABLE FOR NEGOTIATIONS." NEITHER THE LETTER NOR OTHER PORTIONS OF
THE RECORD INDICATE WHETHER REFERENCE WAS BEING MADE TO THE DECISION TO
IMPLEMENT THE CFTM TEST PROGRAM, THE IMPACT AND IMPLEMENTATION OF THE
PROGRAM, OR BOTH. HOWEVER, THE RECORD DOES CLEARLY SHOW THAT THE UNION,
BECAUSE OF THE CFTM TEST PROGRAM, ACTIVELY PURSUED EFFORTS TO MODIFY
ARTICLES PREVIOUSLY MADE THE SUBJECT OF TENTATIVE AGREEMENT (TR. 144,
JT.EXHS. 2, 4, 5, 6, 7, AND 8). IN CLOSING COLONEL BLEWETT STATED: "WE
WILL BE SENDING YOU PROPOSALS FOR CONSIDERATION AND RESPONSE WITHIN THE
NEXT FEW WEEKS." ON SEPTEMBER 19, 1979, MR. YOUNG RESPONDED WITH A
LETTER TO COLONEL BLEWETT AND STATED IN PART THAT THE UNION WOULD NOT
ACCEPT A COUNTERPROPOSAL PERTAINING TO PERFORMANCE RATINGS BECAUSE THE
PANEL HAD RESOLVED THE PERFORMANCE RATING ISSUE BY REQUIRING THAT THE
PARTIES ADOPT THE UNION'S PROPOSAL ON THE SUBJECT (JT.EXH. 13).
ON OR ABOUT SEPTEMBER 27, 1979, THE RESPONDENT FORWARDED TO THE UNION
MANAGEMENT PROPOSALS CONCERNING A PREAMBLE AND ARTICLES 1 THROUGH 11 FOR
A SUCCESSOR COLLECTIVE BARGAINING AGREEMENT. COLONEL WALLACE PROMISED
TO FORWARD REMAINING PROPOSED ARTICLES FOR INCLUSION IN THE AGREEMENT
(JT.EXH. 14). /12/
ON OCTOBER 10, 1979, MR. YOUNG RESPONDED TO MANAGEMENT'S PROPOSALS
FOR ARTICLES 1 THROUGH 11 WITH THE FOLLOWING STATEMENT OF THE UNION'S
POSITION IN A LETTER TO COLONEL BLEWETT:
FIRST, THAT THERE ARE THREE (3) ITEMS TO BE COMPLETED IN ACCORDANCE
WITH THE RULING/ORDER
OF THE FEDERAL SERVICE IMPASSES PANEL. I.E. 1. REMOVE MANAGEMENT
PROPOSAL FOR EXTENSION OF
THE CONTRACT; 2. ACCEPT UNION PROPOSAL WITH REGARD TO TECHNICIAN
PERFORMANCE
RATINGS; 3. OPTIONAL CIVILIAN ATTIRE FOR TECHNICIANS. SECONDLY, TWO
(2) REPLACEMENT ARTICLES
FOR ARTICLE 12 AND ARTICLE 17 WERE SUBMITTED ON JULY 28TH, 1979.
THESE ARTICLES ARE REQUIRED
BY CSC BULLETIN 711-48 DATED DECEMBER 28, 1978. LASTLY, WITH REGARD
TO ARTICLES AGREED TO AND
INITIALED BY YOU AND MR. TEDESCO, WHEREEVER E.O. 11491 APPEARS IT
WILL BE REMOVED AND REPLACED
WITH P.L. 95-454 (JT.EXH. 15).
MR. YOUNG'S OCTOBER 10TH LETTER ALSO RETURNED MANAGEMENT'S PROPOSALS
RELATING TO ARTICLES 1 THROUGH 11. HIS BASIS FOR SO DOING WAS THAT THE
PROPOSALS WERE "IN CONFLICT WITH CSC BULLETIN WHICH INDICATED THAT
"(A)REAS IN WHICH IMMEDIATE ATTENTION AND/OR ACTION IS REQUIRED ARE THE
LAW'S NEW PROVISIONS GOVERNING REPRESENTATION RIGHTS, GRIEVANCE
ARBITRATION, DUES WITHHOLDING AND OFFICIAL TIME FOR BARGAINING." BASED
UPON THE QUOTED LANGUAGE, MR. YOUNG CONCLUDED: "AS THE MAJORITY OF YOUR
PROPOSALS DO NOT FALL UNDER ANY OF THE AFOREMENTIONED CATEGORIES THEY
ARE DEEMED INAPPROPRIATE."
OFFICIAL NOTICE IS TAKEN OF THE FACT THAT CIVIL SERVICE COMMISSION
BULLETIN 711-48, DATED DECEMBER 28, 1978, WHICH WAS DISTRIBUTED TO THE
HEADS OF AGENCIES, DEPARTMENTS, ASSISTANT SECRETARIES FOR ADMINISTRATION
(OR EQUIVALENTS), MERELY PROVIDED THE VIEWS OF THE COMMISSION CONCERNING
THE ACTION TO BE TAKEN BY AGENCIES ON OR BEFORE JANUARY 11, 1979, THE
EFFECTIVE DATE OF THE STATUTE. IT DID NOT REPRESENT A LIST OF
PROVISIONS IN THE CIVIL SERVICE REFORM ACT WHICH MIGHT JUSTIFY EFFORTS
ON THE PART OF THE RESPONDENT OR THE UNION, TO RENEGOTIATE ARTICLES
TENTATIVELY ADOPTED IN 1977.
MANAGEMENT RESTATED ITS POSITION ON THE NEGOTIATIONS IN AN OCTOBER
22, 1979 LETTER FROM COLONEL WALLACE TO MR. YOUNG (JT.EXH. 17). AFTER
NOTING THE NEED TO REVIEW THE CONTRACT IN ITS ENTIRETY IN ORDER TO
DETERMINE CHANGES MADE NECESSARY BY THE CIVIL SERVICE REFORM ACT OF
1978, COLONEL WALLACE STATED:
PASSAGE OF THE CIVIL SERVICE REFORM ACT OF 1978, PL 95-454, HAS HAD
AN EXTRAORDINARY IMPACT
UPON ALL ASPECTS OF LABOR RELATIONS WITHIN THE FEDERAL SERVICE. AS
SUCH, A COMPLETE
REASSESSMENT OF CONTRACTUAL AGREEMENTS IS A NECESSITY; THE
OBLIGATION TO CONSIDER TITLE VII OF
PL 95-454 IS NOT RESTRICTED TO ARTICLES 12 AND 17 OF THE EXPIRED
AGREEMENT. ARTICLES 3, 4, 5,
AND 6, AS EXAMPLES MUST BE ADDRESSED WITH THE ADVENT OF THE REFORM
ACT AND SUBSEQUENT
STATUTORY MANDATES.
IT HAS BEEN MORE THAN TWO YEARS SINCE FORMAL NEGOTIATIONS ON A
SURVIVOR AGREEMENT TO THE
ONE THAT EXPIRED IN OCTOBER OF 1977 TOOK PLACE. WE CANNOT DISREGARD
THAT TIME ELEMENT AND THE
CHANGES THAT HAVE OCCURRED. ACCORDINGLY, IT IS APPROPRIATE THAT THE
ENTIRE AGREEMENT BE
SUBJECTED TO NEGOTIATIONS.
COLONEL WALLACE AGAIN ENCLOSED PROPOSALS RELATING TO ARTICLES 1
THROUGH 11 OF THE EXPIRED AGREEMENT.
ON OCTOBER 29, 1979, MR. YOUNG RESPONDED TO COLONEL WALLACE'S OCTOBER
22ND LETTER AND STATED THAT BECAUSE MANAGEMENT'S PROPOSALS RELATING TO
ARTICLES 1 THROUGH 11 INCORPORATED SEVERAL ADMINISTRATIVE CORRECTIONS
REQUIRED BY THE CIVIL SERVICE REFORM ACT, HE HAD DECIDED TO RETAIN THEM
(JT.EXH.18). HE WENT ON TO SAY; "AS STATED IN THE PAST, BOTH VERBALLY
AND IN WRITING, THIS ORGANIZATION IS PREPARED TO RETURN TO THE
NEGOTIATING TABLE TO IMPLEMENT THE RULING/ORDER OF THE IMPASSES PANEL
AND TO MAKE THOSE CHANGES TO THE TENTATIVE AGREEMENT AS REQUIRED BY THE
CIVIL SERVICE REFORM ACT." ON OR ABOUT OCTOBER 31, 1979, MANAGEMENT
SUBMITTED TO THE UNION A "DRAFT-NEGOTIATED AGREEMENT" COVERING THE
ARTICLES TENTATIVELY AGREED TO IN 1977, (JT.EXH. 25).
MEETINGS HELD ON NOVEMBER 5 AND 6, 1979
AT 9:00 A.M. ON NOVEMBER 5, 1979, THE PARTIES MET AS PLANNED TO
NEGOTIATE A NEW CONTRACT. MR. YOUNG HEADED THE UNION TEAM, AND COLONELS
BLEWETT, WALLACE AND BECK WERE THE KEY REPRESENTATIVES FOR THE
RESPONDENT. MR. YOUNG READ A PREPARED OPENING STATEMENT (JT.EXH. 19).
THE STATEMENT ASSERTED THAT ARTICLES TENTATIVELY ADOPTED IN 1977 WERE
BINDING UPON THE PARTIES, AND THAT THE THREE ISSUES RESOLVED BY THE
PANEL SHOULD BE ADDRESSED AS THE FIRST ORDER OF BUSINESS. IN HIS FINAL
SENTENCE MR. YOUNG STATED: "(T)HIS COMMITTEE NOW STANDS READY TO
IMPLEMENT THE IMPASSES PANEL DECISION AND ORDER."
THE TESTIMONY OF MR. YOUNG AND MR. GIARRUSSO CLEARLY ESTABLISHED THAT
THE UNION WAS OF THE VIEW THAT A BINDING CONTRACT WOULD RESULT WITH
AGREEMENT OF RESPONDENT ON ISSUES RESOLVED BY THE PANEL, BY THE
RENEGOTIATION OF ARTICLE 12 (GRIEVANCE PROCEDURE) AND ARTICLE 17
(ARBITRATION), AND BY MAKING OTHER LIMITED NON-SUBSTANTIVE CHANGES.
THIS POSITION WAS PREMISED ON THE THEORY THAT ALL ARTICLES TENTATIVELY
AGREED TO IN 1977, EXCLUDING THE EXCEPTIONS NOTED, WERE BINDING ON THE
PARTIES. /13/
MANAGEMENT REITERATED ORALLY AND IN WRITING THAT THE RESPONDENT WOULD
ABIDE BY THE DECISION AND ORDER OF THE PANEL WITH RESPECT TO ISSUES NOT
RELATING TO THE WEARING OF THE MILITARY UNIFORM, THAT THE PARTIES SHOULD
CONSIDER THE DRAFT NEGOTIATED AGREEMENT PREVIOUSLY SUPPLIED TO THE
UNION, AND THAT THE PARTIES SHOULD BEGIN WITH ARTICLE 1 AND CONTINUE
THROUGH TO THE END OF THE PROPOSED CONTRACT IN ORDER TO INSURE
CONFORMANCE WITH THE CIVIL SERVICE REFORM ACT. THE POSITION OF
MANAGEMENT IS REFLECTED IN A NOVEMBER 5, 1979 MEMORANDUM GIVEN TO THE
UNION DURING THE MEETING (JT.EXH. 20). IN THIS MEMORANDUM COLONEL
BLEWETT STATED:
WE HAVE ALREADY INFORMED THE IMPASSE PANEL THAT WE HAVE ACCEPTED
THOSE PROPOSALS PERTAINING
TO CONTRACT EXTENSIONS AND TECHNICIAN PERFORMANCE RATINGS. WE MAY
ADOPT THE LANGUAGE AS
STATED OR CONCURRENTLY DECIDE UPON BETTER LANGUAGE. /14/
WE FELL THAT WE SHOULD NOW ADDRESS THE CONTRACT FROM ARTICLE 1 AND
DEAL WITH THE IMPASSE
ISSUES AS THEY ARISE.
WE WANT TO REITERATE THAT NO AGREEMENT IS IN FORCE AND EFFECT SINCE
OCTOBER, 1977.
THE RESPONDENT AGAIN TOOK THE POSITION THAT THERE COULD BE NO MEETING
OF THE MINDS IN THE FORM OF A CONTRACT UNTIL ALL NEGOTIATIONS WERE
COMPLETED BY THE PARTIES, AND FURTHER THAT ARTICLES TENTATIVELY AGREED
TO IN 1977 DID NOT RESULT IN A BINDING AGREEMENT CONCERNING ARTICLES
NEGOTIATED AT THAT TIME. MANAGEMENT REJECTED THE UNION'S VIEW WITH
RESPECT TO THE LEGAL EFFECT OF INITIALING ARTICLES IN 1977.
MANAGEMENT'S POSITION IN THIS REGARD IS SUPPORTED IN PART BY THE HISTORY
OF THE 1977 NEGOTIATIONS IN THAT THE PARTIES WERE NOT THEN ABLE TO REACH
AGREEMENT ON A GROUND RULE WHICH WOULD HAVE HAD THE EFFECT OF BINDING
THE PARTIES TO LANGUAGE TENTATIVELY AGREED UPON PRIOR TO COMPLETION OF
THE ENTIRE CONTRACT; BY THE FACT THAT THE PARTIES STIPULATED TO THE
PANEL THAT THE ARTICLES NEGOTIATED IN 1977 CONSTITUTED A TENTATIVE
AGREEMENT ONLY, AND ONE WHICH WAS NOT IN EFFECT; AND BY THE TESTIMONY
OF MR. TEDESCO, WHO ACKNOWLEDGED THAT THAT THE INITIALING OF ARTICLES IN
1977 WAS MERELY INDICATIVE OF THE FACT THAT THE ARTICLES HAD BEEN
"COVERED" BY THE PARTIES (TR. 70).
AS NOTED, AT THE NOVEMBER 5TH MEETING, MANAGEMENT INSISTED UPON THE
PARTIES GOING OVER EACH AND EVERY ARTICLE TO INSURE CONFORMANCE WITH THE
CIVIL SERVICE REFORM ACT. IT WAS ALSO THE POSITION OF MANAGEMENT THAT
THE 1977 TENTATIVE AGREEMENTS WERE AFFECTED BY THE REFORM ACT IN A
NUMBER OF WAYS NOT RECOGNIZED BY THE UNION. THE DISPUTE OUTLINED
RESULTED IN A DISAGREEMENT OVER THE PROCEDURE TO BE PURSUED BY THE
PARTIES DURING CONTRACT NEGOTIATIONS. THE UNION DECIDED THAT THE
PARTIES SHOULD ENDEAVOR TO OBTAIN THE SERVICES OF A MEDIATOR FROM THE
FEDERAL MEDIATION AND CONCILIATION SERVICE, AND MANAGEMENT AGREED.
BECAUSE A UNION EFFORT TO OBTAIN A MEDIATOR WAS UNSUCCESSFUL, THE
PARTIES RECESSED WITH THE UNDERSTANDING THAT THE UNION WOULD PHONE
MANAGEMENT BY 2:00 P.M. ON NOVEMBER 5TH TO APPRISE MANAGEMENT CONCERNING
UNION EFFORTS TO OBTAIN A MEDIATOR, AND TO INFORM WHETHER THE UNION TEAM
WOULD RETURN TO THE BARGAINING TABLE THE NEXT DAY.
AS THE UNION TEAM WAS LEAVING THE BUILDING, COLONEL BECK ASKED MR.
YOUNG TO RETURN TO THE NEGOTIATING TABLE. MR. YOUNG WAS ADVISED THAT
THE UNION TEAM WOULD RECEIVE FOUR HOURS OF OFFICIAL TIME FOR THE ACTUAL
TIME SPENT AT THE TABLE, BUT THAT NO OFFICIAL TIME WOULD BE PROVIDED FOR
TIME SPENT AWAY FROM THE BARGAINING TABLE. /15/ THE UNION TEAM THEN
LEFT THE TABLE. THE ENTIRE BARGAINING SESSION LASTED ABOUT TWO HOURS.
THE PARTIES STIPULATED THAT THE COLLECTIVE BARGAINING AGREEMENT IN
EFFECT DID NOT GOVERN THE ISSUE OF WHETHER THE UNION WOULD BE ENTITLED
TO OFFICIAL TIME IN THE SITUATION OUTLINED, AND FURTHER THAT MANAGEMENT
HAD A LONG STANDING PAST PRACTICE OF GRANTING OFFICIAL TIME TO UNION
NEGOTIATORS ONLY FOR TIME ACTUALLY SPENT AT THE BARGAINING TABLE (TR.
125-126). THE ACTION TAKEN BY THE RESPONDENT WAS IN ACCORDANCE WITH
THIS PAST PRACTICE.
AFTER LEAVING THE BARGAINING TABLE THE UNION NEGOTIATING TEAM
RETURNED TO THEIR HOTEL WHERE THEY CONSIDERED AND DISCUSSED THE MORNING
SESSION. DURING THE AFTERNOON THEY CONTACTED MR. TEDESCO, MR. VINCENT
PATERNO, NATIONAL PRESIDENT OF ACT, AND THE FEDERAL MEDIATION AND
CONCILIATION SERVICE. EFFORTS TO OBTAIN A MEDIATOR WERE NOT SUCCESSFUL.
DURING THE AFTERNOON THEY ALSO PREPARED THREE PROPOSALS TO PRESENT TO
MANAGEMENT (JT.EXH. 21). THE THREE PROPOSALS RELATED SPECIFICALLY TO
THE IMPLEMENTATION OF THE DECISION AND ORDER OF THE PANEL. PROPOSAL I
WAS DESIGNED TO EFFECTUATE A WITHDRAWAL OF MANAGEMENT'S PRIOR PROPOSAL
RELATING TO THE EXTENSION OF THE COLLECTIVE BARGAINING AGREEMENT. THE
TERMS OF PROPOSAL II REPRESENTED A REASSERTION OF THE PRIOR UNION
PROPOSAL RELATING TO PERFORMANCE RATINGS. PROPOSAL III, NOT RELEVANT
WITHIN THE CONTEXT OF THIS PROCEEDING, RELATED TO THE WEARING OF THE
MILITARY UNIFORM. THE UNION TEAM WORKED ON THE THREE PROPOSALS UNTIL
APPROXIMATELY 4:00 OR 4:30 P.M. ON NOVEMBER 5TH. AT ABOUT 3:30 P.M.
MR. YOUNG PHONED MANAGEMENT AND ARRANGED TO RETURN TO THE BARGAINING
TABLE ON NOVEMBER 6TH.
ON NOVEMBER 6, 1979, THE PARTIES MET AGAIN, AND AFTER THE UNION
EXPLAINED THAT A MEDIATOR WOULD NOT BE AVAILABLE UNTIL THE END OF THE
WEEK, THE UNION PRESENTED THE THREE PROPOSALS PREPARED BY UNION
REPRESENTATIVES DURING THE AFTERNOON OF NOVEMBER 5TH. THERE WAS MORE
DISCUSSION OF LEGAL EFFECT OF INITIALING ARTICLES IN 1977. MANAGEMENT
TOOK THE POSITION THAT PRIOR AGREEMENT ON ARTICLES IN 1977 WAS NOT
BINDING DUE TO THE PASSAGE OF THE REFORM ACT, AND DUE TO THE LAPSE OF
ABOUT TWO AND A HALF YEARS (TR. 95). AGAIN, THE UNION INSISTED THAT THE
THREE ISSUES RESOLVED BY THE PANEL WERE THE ONLY BUSINESS PENDING, THAT
AGREEMENTS REACHED IN 1977 WERE BINDING ON THE PARTIES; THAT UPON
SIGNING THE THREE PROPOSALS, RENEGOTIATING THE GRIEVANCE AND ARBITRATION
PROCEDURES AND MAKING OTHER NON-SUBSTANTIVE CHANGES IN ARTICLES
TENTATIVELY AGREED TO, A BINDING COLLECTIVE BARGAINING AGREEMENT WOULD
RESULT. MANAGEMENT REFUSED TO ACCEDE TO THE UNION'S VIEW AND INSISTED
UPON REVIEWING THE ENTIRE "DRAFT-NEGOTIATED AGREEMENT" SUBMITTED TO THE
UNION PRIOR TO THE NEGOTIATING SESSIONS. MANAGEMENT AGAIN TOOK THE
POSITION THAT THIS WAS NECESSARY TO INSURE THAT THE AGREEMENT CONFORMED
TO THE REFORM ACT; AND THAT THE PARTIES COULD CONSIDER THE THREE ISSUES
RETURNED BY THE PANEL AS THESE ISSUES AROSE IN SEQUENCE DURING
CONSIDERATION OF THE "DRAFT-NEGOTIATED AGREEMENT." AFTER A BRIEF PERIOD
THE PARTIES AGREED TO RECESS WITH THE UNDERSTANDING THAT THEY WOULD MEET
AGAIN WITH A REPRESENTATIVE OF THE FEDERAL MEDIATION AND CONCILIATION
SERVICE.
ON NOVEMBER 19, 1979, THE PARTIES MET WITH A FEDERAL MEDIATOR
PRESENT. /16/ EACH PARTY EXPLAINED THEIR RESPECTIVE POSITIONS AND THEN
AGREED THAT THEY WOULD SUBMIT A LIST OF TENTATIVELY ADOPTED ARTICLES
THAT THEY FELT HAD TO BE RENEGOTIATED OR ADMINISTRATIVELY CHANGED AS A
RESULT OF PASSAGE OF THE REFORM ACT. SUBSEQUENTLY, ON DECEMBER 14,
1979, COLONEL WALLACE ADDRESSED A LETTER TO MR. YOUNG SETTING FORTH
RESPONDENT'S POSITION ON THE ARTICLES WHICH MANAGEMENT FELT HAD TO BE
ADDRESSED DURING NEGOTIATIONS (JT.EXH. 22) ON WHICH THE UNION FELT WERE
SUBJECT TO RENEGOTIATION AS A RESULT OF PASSAGE OF THE REFORM ACT
(JT.EXH. 23). THE UNION AGREED WITH THE RESPONDENT THAT ARTICLE 4
(RIGHTS OF TECHNICIANS), ARTICLE 12 (GRIEVANCE PROCEDURE), AND ARTICLE
17 (ARBITRATION), HAD TO BE RENEGOTIATED, AND THAT CERTAIN MINOR CHANGES
INVOLVING REMOVAL OF REFERENCES TO EXECUTIVE ORDER 11491 WERE REQUIRED
IN OTHER ARTICLES. THE RESPONDENT IDENTIFIED OTHER ARTICLES AS BEING
SUBJECT TO RENEGOTIATION. THESE WERE ARTICLE 1 (UNION REPRESENTATION),
ARTICLE 10 (EQUAL EMPLOYMENT OPPORTUNITY), ARTICLE 13 (REDUCTION IN
FORCE), ARTICLE 14 (MERIT PROMOTION), ARTICLE 15 (DETAIL OF
TECHNICIANS), ARTICLE 20 (DUES WITHHOLDING), AND ARTICLE 21 (DURATION
AND CHANGES). IN ADDITION THE RESPONDENT INSISTED THAT IN MAKING MINOR
CHANGES INVOLVING THE REMOVAL OF REFERENCES TO EXECUTIVE ORDER 11491,
AFFECTED ARTICLES SHOULD BE SCRUTINIZED BY THE PARTIES TO DETERMINE
WHETHER THE CIVIL SERVICE REFORM ACT HAD AN IMPACT ON SUCH ARTICLES.
ON JANUARY 2, 1980, COLONEL WALLACE WROTE TO MR. YOUNG AND NOTED THE
DIFFERENCES IN THE POSITIONS OF THE PARTIES (JT.EXH. 24). COLONEL
WALLACE URGED THAT THE PARTIES SHOULD RESOLVE THEIR DIFFERENCES
CONCERNING THE SUBJECTS TO BE RENEGOTIATED BEFORE ENDEAVORING TO
NEGOTIATE FURTHER, AND THAT THE SUBJECT MIGHT BE AN APPROPRIATE ONE FOR
SUBMISSION TO THE PANEL. HE CONCLUDED BY STATING, "YOUR THOUGHTS AND
COMMENTS ON HOW WE MAY EXPEDITIOUSLY RESOLVE THESE DIFFERENCES ARE
SOLICITED." THE PARTIES DID NOT REACH AGREEMENT ON THIS SUBJECT, AND ON
APRIL 14, 1980, THEY MET AGAIN. AT THIS MEETING, THE UNION AGAIN TOOK
THE POSITION THAT ALL TENTATIVELY ADOPTED ARTICLES WERE BINDING ON THE
RESPONDENT, THAT THE PARTIES SHOULD RENEGOTIATE ARTICLES 4, 12 AND 17
DUE TO PASSAGE OF THE REFORM ACT, THAT MINOR CHANGES BE MADE TO REMOVE
REFERENCES TO EXECUTIVE ORDER 11941, AND FURTHER THAT NO BASIS EXISTED
FOR RENEGOTIATING OTHER ARTICLES. AS OF THE DATE OF THE HEARING THE
PARTIES HAD AGREED TO RETURN TO THE NEGOTIATING TABLE ON JUNE 10, 1980,
WITH A FEDERAL MEDIATOR PRESENT.
DISCUSSION AND CONCLUSIONS
CASE NO. 1-CA-196
THE BASIC ISSUE POSED FOR RESOLUTION IN CASE NO. 1-CA-196 IS WHETHER
THE RESPONDENT FAILED TO BARGAIN IN "GOOD FAITH" WITH THE UNION BY
DEMANDING THE RENEGOTIATION OF CERTAIN CONTRACT ARTICLES PREVIOUSLY
AGREED TO BY THE UNION AND THE RESPONDENT DURING PRIOR COLLECTIVE
BARGAINING NEGOTIATIONS; BY SEEKING TO AVOID OR DELAY REACHING AN
AGREEMENT BY DEMANDING THE RENEGOTIATION OF SUCH ARTICLES; BY
ATTEMPTING TO UTILIZE THE PROCESSES OF THE PANEL TO AVOID THE OBLIGATION
TO NEGOTIATE; AND BY TRYING TO EFFECT THE NEGOTIATION OF ISSUES WHICH
THE PANEL HAD PREVIOUSLY CONSIDERED AND RESOLVED.
SECTION 7114(B)(1) OF THE STATUTE REFLECTS THAT THE DUTY TO NEGOTIATE
IN GOOD FAITH INCLUDES THE OBLIGATION "TO APPROACH THE NEGOTIATIONS WITH
A SINCERE RESOLVE TO REACH A COLLECTIVE BARGAINING AGREEMENT . . . "
IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2578, AFL-CIO,
AND NATIONAL ARCHIVES AND RECORDS SERVICE, A/SLMR NO. 965 (JANUARY 11,
1978), THE ASSISTANT SECRETARY FOR LABOR MANAGEMENT RELATIONS, UNITED
STATES DEPARTMENT OF LABOR, UTILIZED THE FOLLOWING LANGUAGE TO DESCRIBE
GOOD FAITH BARGAINING:
THE DUTY TO BARGAIN IN "GOOD FAITH" . . . REQUIRES THAT PARTIES TO
NEGOTIATIONS APPROACH
THE BARGAINING TABLE WITH AN OPEN AND SINCERE DESIRE TO REACH
AGREEMENT . . . . IN ADDITION
TO APPROACHING BARGAINING WITH AN OPEN MIND AND SINCERE DESIRE TO
REACH AGREEMENT, THE DUTY TO
BARGAIN IN GOOD FAITH ALSO REQUIRES THAT THE PARTIES MAKE AN EARNEST
EFFORT TO REACH AGREEMENT
THROUGH THE COLLECTIVE BARGAINING PROCESS . . . .
THE DECISION CITED ALSO MAKES IT CLEAR THAT THE TOTALITY OF THE
EVIDENCE IN A CASE MUST BE CONSIDERED IN ORDER TO DETERMINE WHETHER A
PARTY HAS ATTEMPTED TO EVADE OR FRUSTRATE THE BARGAINING RESPONSIBILITY.
AFTER EVALUATING THE EVIDENCE PRESENTED BY THE PARTIES IN THE LIGHT OF
PERTINENT AUTHORITIES, AND CONSIDERING THE SPECIAL CIRCUMSTANCES
PRESENTED IN THIS CASE, I AM OF THE OPINION THAT RESPONDENT'S CONDUCT
DID NOT CONSTITUTE BAD FAITH BARGAINING.
RESPONDENT'S INSISTENCE ON THE RENEGOTIATION OF ARTICLES
PREVIOUSLY ADOPTED
IN CASES DECIDED UNDER THE NATIONAL LABOR RELATIONS ACT IT HAS BEEN
HELD THAT AN EMPLOYER'S WITHDRAWAL OF TENTATIVE AGREEMENTS OR PREVIOUS
PROPOSALS IS EVIDENCE OF BAD FAITH BARGAINING. SUCH WITHDRAWAL WITHOUT
GOOD CAUSE CAN BE STRONG EVIDENCE THAT THE EMPLOYER IS MERELY STRINGING
THE UNION ALONG AND THAT IT IS NOT BARGAINING WITH THE REQUIRED GOOD
FAITH INTENT TO REACH AN AGREEMENT. HOWEVER, THIS GENERAL PRINCIPLE
MUST BE CONSIDERED IN THE LIGHT OF THE CAVEAT THAT THE WITHDRAWAL OF
TENTATIVE PREVIOUS AGREEMENTS OR PREVIOUS PROPOSALS DOES NOT ESTABLISH
PER SE THE ABSENCE OF GOOD FAITH. THE ACTIONS OF THE EMPLOYER MUST BE
VIEWED IN THE CONTEXT OF THE NEGOTIATIONS IN WHICH THEY AROSE. NLRB V.
RANDLE-EASTERN AMBULANCE SERVICE, INC., 584 F.2D 720, 99 LRRM 3377 (CA
5, 1978).
IN THIS CASE THE RESPONDENT AND THE CHARGING PARTY AGREED TO
RENEGOTIATE CERTAIN CONTRACTUAL PROVISIONS PREVIOUSLY ADOPTED IN 1977.
ARTICLE 4 (RIGHTS OF TECHNICIANS), ARTICLE 12 (GRIEVANCE PROCEDURE), AND
ARTICLE 17 (ARBITRATION) FELL INTO THIS CATEGORY. /17/ ARTICLE 20 (DUES
WITHHOLDING) MUST ALSO BE INCLUDED IN THIS GROUP IN VIEW OF PROVISIONS
IN THE MEMORANDUM OF AGREEMENT EXECUTED BY THE UNION AND THE RESPONDENT
ON MAY 17, 1979. THE UNION ALSO AGREED GENERALLY TO RENEGOTIATE
PROVISIONS IMPACTED BY THE REFORM ACT, AND ABANDONED PRIOR ASSENT TO
CERTAIN ARTICLES WHICH THE UNION FELT SHOULD BE MODIFIED BECAUSE OF THE
CFTM TEST PROGRAM INITIATED BY THE RESPONDENT IN EARLY 1979. OF THE
ARTICLES TENTATIVELY ADOPTED IN AUGUST OF 1979, ARTICLE 4 (RIGHTS OF
TECHNICIANS), ARTICLE 10 (EQUAL EMPLOYMENT OPPORTUNITY), ARTICLE 13
(REDUCTION IN FORCE), ARTICLE 14 (MERIT PROMOTION), AND ARTICLE 15
(DETAIL OF TECHNICIANS), WOULD HAVE BEEN AFFECTED BY UNION INTEREST IN
THE CFTM TEST PROGRAM. /18/
A CAREFUL REVIEW OF THE PREAMBLE, ARTICLE 1 (RECOGNITION AND UNIT
DESIGNATION), ARTICLE 2 (PURPOSE), ARTICLE 3 (EMPLOYER RIGHTS), ARTICLE
6 (UNION REPRESENTATION), ARTICLE 7 (HOURS OF WORK), ARTICLE 8 (LEAVE),
ARTICLE 9 (HEALTH AND SAFETY), ARTICLE 18 (TRAINING), AND ARTICLE 19
(TRAVEL), AS SET FORTH IN THE "DRAFT-NEGOTIATED AGREEMENT" REVEALS THAT
THEY ARE SUBSTANTIALLY THE SAME AS CORRELATIVE ARTICLES PREVIOUSLY
ADOPTED BY THE UNION AND RESPONDENT IN 1977. THE SUBMISSION OF CHANGED
VERSIONS OF ARTICLE 5 (UNION-MANAGEMENT COOPERATION), ARTICLE 16
(GENERAL), AND ARTICLE 21 (DURATION AND CHANGES), WAS ARGUABLY JUSTIFIED
BY THE PASSAGE OF THE REFORM ACT; AND ARTICLE 11 (PUBLICITY) INVOLVED
ONLY A MINOR CHANGE, WHICH ARGUABLY, WOULD HAVE INURED TO THE BENEFIT OF
THE UNION.
AT THE CONCLUSION OF THE HEARING COUNSEL OF RECORD WERE REQUESTED TO
REVIEW THE DIFFERENCES BETWEEN ARTICLES TENTATIVELY ADOPTED IN 1977, AND
THE 1979 "DRAFT-NEGOTIATED AGREEMENT," AND TO STATE FOR THE RECORD,
THEIR RESPECTIVE POSITIONS REGARDING SUCH DIFFERENCES OR SAMENESS; AND
TO STATE THE REASONS FOR THEIR POSITIONS WITH RESPECT TO EACH ARTICLE.
THE POST-HEARING BRIEF FILED BY COUNSEL FOR THE GENERAL COUNSEL
INDICATES A FAILURE TO RESPOND TO THIS REQUEST. /19/
A NUMBER OF FACTORS CONJOIN IN THIS CASE TO INDICATE THE ABSENCE OF
AN ADEQUATE BASIS UPON WHICH TO CONCLUDE THAT THE RESPONDENT ENGAGED IN
BAD FAITH BARGAINING BY SUBMITTING PROPOSALS IN THE FORM OF A
"DRAFT-NEGOTIATED AGREEMENT," OR THAT THE MENTIONED DOCUMENT WAS
OTHERWISE URGED UPON THE UNION IN BAD FAITH. THESE INCLUDE THE
FOLLOWING: (1) THE MERE INTRODUCTION OF EVIDENCE SHOWING RESPONDENT'S
WITHDRAWAL OF TENTATIVE AGREEMENTS DOES NOT PER SE ESTABLISH BAD FAITH
BARGAINING; (2) THE PRESENTATION OF NEARLY IDENTICAL ARTICLES, OR
ARTICLES INVOLVING MINOR EDITORIAL REVISIONS, WOULD NOT, WITHOUT MORE,
REFLECT AN INTENT TO ENGAGE IN BAD FAITH BARGAINING WHERE, AS IN THIS
CASE, THE PARTIES WERE ENDEAVORING TO INSURE THAT EACH ARTICLE
PREVIOUSLY ADOPTED CONFORMED WITH THE PROVISIONS OF THE REFORM ACT;(3)
INITIALLY AT LEAST, THE UNION AGREED GENERALLY TO CONSIDER ANY CHANGES
THAT EITHER THE UNION OR THE RESPONDENT FELT WERE WARRANTED BY THE
REFORM ACT; (4) THE RESPONDENT, NOT THE UNION, UNDERTOOK THE EFFORT TO
PROVIDE EDITED VERSIONS OF ARTICLES PREVIOUSLY AGREED TO FOR THE PURPOSE
OF EFFECTING MINOR EDITORIAL CHANGES REQUIRED BY THE REFORM ACT; (5)
THE POSITIONS OF THE PARTIES WERE IN FACT SUBSTANTIALLY ALTERED BY THE
PASSAGE OF THE REFORM ACT, AND BY THE UNION'S EFFORTS TO MODIFY ARTICLES
DEEMED SUBJECT TO CHANGE AS A RESULT OF THE CFTM TEST PROGRAM; (6) THE
UNION'S POSITION NECESSARILY IMPLIES THAT THE UNION HAD THE RIGHT TO
WITHDRAW FROM THEIR AGREEMENTS RELATING TO PREVIOUSLY NEGOTIATED
ARTICLES WHICH THE UNION DEEMED TO BE AFFECTED BY THE CFTM TEST PROGRAM,
BUT THAT THE RESPONDENT HAD NO CORRELATIVE RIGHT TO WITHDRAW ASSENT
BASED UPON RESPONDENT'S PERCEPTION OF CHANGED CIRCUMSTANCES WITH
RESPECT
TO PREVIOUSLY ADOPTED ARTICLES; (7) ARGUABLY THERE WAS A DUTY AND AN
OBLIGATION ON THE PART OF BOTH THE UNION AND THE RESPONDENT, TO REVIEW
AND CONSIDER AGAIN, EACH ARTICLE IN ORDER TO REACH AGREEMENT ON THE
FINAL WORDING OF ARTICLES AS A RESULT OF CHANGES GENERATED BY THE REFORM
ACT; /20/ (8) RESPONDENT'S INSISTENCE UPON SUBJECTING ALL PREVIOUSLY
ADOPTED ARTICLES TO NEGOTIATION MAY NOT, IN THIS CASE BE TAKEN
LITERALLY, AS THE RECORD INDICATES THAT THE RESPONDENT WAS, FOR THE MOST
PART, MERELY INSISTING UPON A THOROUGH REVIEW OF ARTICLES BY THE UNION
AND THE RESPONDENT TO INSURE THAT THEY CONFORMED WITH THE REFORM ACT;
(9) THE MAIN ISSUE CONFRONTING THE PARTIES REVOLVED ABOUT THE QUESTION
OF WHAT SPECIFIC ACTION THE PARTIES SHOULD TAKE AS A RESULT OF THE
REFORM ACT, AND FURTHER, HOW THE PARTIES WOULD PROCESS PREVIOUSLY
ADOPTED ARTICLES TO INSURE CONFORMANCE WITH THE REFORM ACT; (10) THE
EVIDENCE INDICATES AN INTENTION ON THE PART OF THE RESPONDENT TO
PARTICIPATE IN NEGOTIATIONS TO RESOLVE ALL CONTRACTUAL ISSUES OTHER THAN
THOSE RELATING TO THE WEARING OF THE MILITARY UNIFORM; (11) THE
NEGOTIATING PROCEDURE SUGGESTED BY THE RESPONDENT IN THE 1979
NEGOTIATIONS, THAT OF BEGINNING WITH ARTICLE 1 AND PROCEEDING WITH EACH
ARTICLE IN SEQUENCE, WAS IN ACCORDANCE WITH THE PROCEDURE UTILIZED BY
NEGOTIATORS IN 1977, AND IN VIEW OF THE ARGUABLE NEED TO THOROUGHLY
REVIEW ARTICLES ADOPTED IN 1977, WAS NOT PATENTLY UNREASONABLE; (12)
THE UNION'S POSITION REGARDING THE EFFECT TO BE GIVEN THE 1977 ARTICLES
VIEWED THE ISSUES PRESENTED IN ISOLATION, AND DID NOT FULLY INDICATE
COGNIZANCE OF THE TASKS FACING THE PARTIES AS A DIRECT RESULT OF PASSAGE
OF THE REFORM ACT, AND AS A RESULT OF THE UNION'S PRIOR WITHDRAWAL OF
ASSENT CONCERNING A NUMBER OF ARTICLES ADOPTED IN 1977; AND LASTLY (13)
THE BURDEN OF PROVING BAD FAITH BASED UPON WITHDRAWAL OF ARTICLES
TENTATIVELY ADOPTED, UNMET IN THIS CASE, REMAINED WITH COUNSEL FOR THE
GENERAL COUNSEL.
IN SUMMARY THE RECORD REVEALS THAT THE UNION AGREED THAT IT WAS
NECESSARY TO RENEGOTIATE ARTICLES 4, 12, 17 AND 20; AND THAT THE UNION
INITIATED EARLIER EFFORTS TO MODIFY ARTICLES 4, 10, 13, 14 AND 15 PRIOR
TO NEGOTIATIONS. WITH RESPECT TO OTHER ARTICLES PROPOSED BY THE
RESPONDENT IN 1979, THAT IS, THE PREAMBLE, AND ARTICLES 1, 2, 3, 5, 6,
7, 8, 9, 11, 16, 18, 19 AND 21, THERE WAS NO SHOWING THAT THE PROPOSED
ARTICLES WERE DIFFERENT OR INVOLVED CHANGES WHICH WERE NOT JUSTIFIED
UNDER THE CIRCUMSTANCES. IN FACT, WITH RESPECT TO THE PREAMBLE, AND
ARTICLES 1, 2, 3, 6, 7, 8, 9, 18, AND 19, IT WAS NOTED THAT THEY WERE
EITHER IDENTICAL OR INVOLVED ONLY MINOR INSIGNIFICANT EDITORIAL CHANGES.
DESPITE A SPECIFIC REQUEST FOR DETAILS, THE RECORD FAILED TO DOCUMENT
THE NATURE AND SCOPE OF THE 1979 PROPOSALS FROM THE STAND POINT OF
COUNSEL FOR THE GENERAL COUNSEL; AND DID NOT, IN LIGHT OF ALL OF THE
FOREGOING, ESTABLISH THAT THE PROPOSALS WERE SUBMITTED IN AN ATTEMPT TO
AVOID OR DELAY REACHING AN AGREEMENT.
THE ALLEGED USE OF THE PROCESSES OF THE FEDERAL SERVICE
IMPASSES PANEL TO AVOID THE OBLIGATION TO NEGOTIATE
A CAREFUL REVIEW OF THE RECORD DISCLOSED NO BASIS TO SUPPORT THE
ALLEGATION THAT THE RESPONDENT SOUGHT TO UTILIZE THE PROCESSES OF THE
PANEL TO AVOID THE OBLIGATION TO NEGOTIATE. COUNSEL FOR THE GENERAL
COUNSEL REFERS TO JT.EXH. 24 AS EVIDENCE OF SUCH CONDUCT. THIS
DOCUMENT, A LETTER DATED JANUARY 2, 1980, ADDRESSED TO MR.YOUNG BY
COLONEL WALLACE, DOES NOT REPRESENT EVIDENCE OF AN EFFORT ON THE PART OF
THE RESPONDENT TO UTILIZE THE PROCESSES OF THE PANEL TO AVOID THE
OBLIGATION TO NEGOTIATE. INSTEAD, IT INDICATES THAT THE RESPONDENT
WISHED TO RESOLVE DIFFERENCES CONCERNING SUBJECTS TO BE NEGOTIATED
BEFORE ENDEAVORING TO NEGOTIATE FURTHER.
THE ALLEGED ATTEMPT TO EFFECT RENEGOTIATION OF ISSUES
RESOLVED BY THE FEDERAL SERVICE IMPASSES PANEL
IT DID APPEAR THAT PORTIONS OF THE PANEL'S DECISION AND ORDER
RELATING TO THE WEARING OF THE MILITARY UNIFORM WERE A SOURCE OF SERIOUS
CONTROVERSY BETWEEN THE UNION AND THE RESPONDENT. THE REFUSAL TO COMPLY
IN THIS REGARD LET TO THE FILING OF A SEPARATE UNFAIR LABOR PRACTICE
CHARGE AND SUBSEQUENT SUCCESSFUL PROSECUTION OF A COMPLAINT BY THE
UNION. BECAUSE OF THE PRIOR LITIGATION OF ISSUES RELATING TO
RESPONDENT'S REFUSAL TO COMPLY IN THIS LIMITED AREA, COUNSEL FOR THE
GENERAL COUNSEL SPECIFICALLY STIPULATED THAT HE WAS NOT REQUESTING
FACTUAL FINDINGS OR REMEDY BASED UPON ELEMENTS OF THE PANEL'S DECISION
AND ORDER DEALING WITH THE WEARING OF THE MILITARY UNIFORM.
ALLEGATIONS THAT THE RESPONDENT ENGAGED IN BAD FAITH BARGAINING BY
SEEKING TO EFFECT THE RENEGOTIATION OF ISSUES WHICH THE PANEL HAD
PREVIOUSLY CONSIDERED AND RESOLVED MUST, AS A RESULT OF THE STIPULATION
OF COUNSEL FOR THE GENERAL COUNSEL, BE LIMITED SOLELY TO THOSE PORTIONS
OF THE PANEL'S DECISION AND ORDER WHICH MANDATED THAT THE RESPONDENT
WITHDRAW RESPONDENT'S PROPOSAL RELATING TO THE EXTENSION OF THE
COLLECTIVE BARGAINING AGREEMENT, AND WHICH ORDERED THE ADOPTION OF THE
UNION'S PROPOSAL RELATING TO PERFORMANCE RATINGS. THE RECORD SHOWS
CONCLUSIVELY THAT THE RESPONDENT DID IN FACT AGREE TO COMPLY WITH THE
DECISION AND ORDER OF THE PANEL IN THESE TWO AREAS OF INTEREST. THIS
WAS REFLECTED IN A LETTER TO THE PANEL, AND IN A LETTER TO THE UNION
FOLLOWING THE DECISION AND ORDER (TR. 78). SUBSEQUENTLY, ON NOVEMBER 5,
1979, THE RESPONDENT REITERATED THAT IT WOULD COMPLY WITH THE PANEL'S
DECISION AND ORDER WITH REGARD TO THE TWO ISSUES IN QUESTION. HOWEVER,
THE RESPONDENT DID OFFER A COUNTERPROPOSAL RELATING TO PERFORMANCE
RATINGS. THE COUNTERPROPOSAL WAS OFFERED AS A MEANS OF PROVIDING FOR
CHANGES BEING MADE IN TPP 902, REFERRED TO IN THE PROPOSAL WHICH THE
PANEL'S DECISION AND ORDER HAD MANDATED THAT THE RESPONDENT ADOPT.
ALSO, IT APPEARED THAT CHANGES IN REGULATIONS RELATING TO PERFORMANCE
RATINGS WERE ANTICIPATED AS A RESULT OF PASSAGE OF THE REFORM ACT.
ALTHOUGH THE COUNTERPROPOSAL WAS OFFERED, THE RESPONDENT MADE IT CLEAR
THAT THE RESPONDENT WAS NOT REJECTING THE DECISION AND ORDER OF THE
PANEL, AND FURTHER THAT THE RESPONDENT WOULD ACCEPT THE PANEL'S DECISION
AND ORDER ON THE TWO ISSUES IN QUESTION.
EVEN ASSUMING THAT THESE TWO ISSUES WERE NOT RESOLVED IN FINAL FORM
PRIOR TO AND DURING NEGOTIATIONS, THE RECORD FAILS TO SHOW THAT THE
RESPONDENT INSISTED UPON THE RENEGOTIATION OF ISSUES PREVIOUSLY RESOLVED
BY THE PANEL OTHER THAN THOSE RELATING TO THE WEARING OF THE MILITARY
UNIFORM. UNDER THE CIRCUMSTANCES IT WOULD NOT BE POSSIBLE TO CONCLUDE
THAT RESPONDENT'S COUNTERPROPOSAL CONSTITUTED BAD FAITH BARGAINING.
CASE NO. 1-CA-195
THIS CASE TURNS ON THE QUESTION OF WHETHER THE PROVISIONS OF SECTION
7131(A) OF THE STATUTE ARE BROAD ENOUGH TO REQUIRE AN AGENCY TO GRANT
OFFICIAL TIME TO EMPLOYEE MEMBERS OF A UNION BARGAINING COMMITTEE FOR
PERIODS SPENT PREPARING FOR, OR ARRANGING, DETAILS RELATING TO THE
NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT, AS DISTINCT FROM
PERIODS OF TIME SPENT IN ACTUAL NEGOTIATION OF A COLLECTIVE BARGAINING
AGREEMENT.
SECTION 7131(A) PROVIDES IN PERTINENT PART:
(A) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE
NEGOTIATION OF A
COLLECTIVE BARGAINING AGREEMENT UNDER THIS CHAPTER SHALL BE
AUTHORIZED OFFICIAL TIME FOR SUCH
PURPOSES, INCLUDING ATTENDANCE AT IMPASSE PROCEEDING, DURING THE TIME
THE EMPLOYEE OTHERWISE
WOULD BE IN A DUTY STATUS . . . .
(B) ANY ACTIVITIES PERFORMED BY ANY EMPLOYEE RELATING TO THE INTERNAL
BUSINESS OF A LABOR
ORGANIZATION (INCLUDING THE SOLICITATION OF MEMBERSHIP, ELECTIONS OF
LABOR ORGANIZATION
OFFICIALS, AND COLLECTION OF DUES) SHALL BE PERFORMED DURING THE TIME
THE EMPLOYEE IS IN A
NON-DUTY STATUS.
. . . .
(D) EXCEPT AS PROVIDED IN PRECEDING SUBSECTIONS OF THIS SECTION--
(1) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE, OR
(2) IN CONNECTION WITH ANY OTHER MATTER COVERED BY THIS CHAPTER, ANY
EMPLOYEE IN AN
APPROPRIATE UNIT REPRESENTED BY AN EXCLUSIVE REPRESENTATIVE, SHALL BE
GRANTED OFFICIAL TIME IN
ANY AMOUNT THE AGENCY AND THE EXCLUSIVE REPRESENTATIVE INVOLVED AGREE
TO BE REASONABLE,
NECESSARY, AND IN THE PUBLIC INTEREST.
IT WAS THE PRACTICE OF THE RESPONDENT TO GRANT OFFICIAL TIME TO UNION
NEGOTIATORS ONLY FOR TIME ACTUALLY SPENT AT THE BARGAINING TABLE.
THEREFORE, THE REFUSAL TO GRANT OFFICIAL TIME FOR THE PERIOD OF TIME
SPENT AWAY FROM THE BARGAINING TABLE DURING THE AFTERNOON OF NOVEMBER 5,
1979, WAS IN ACCORD WITH PAST PRACTICE. IT ALSO APPEARED THAT THE
PARTIES RECESSED ON NOVEMBER 5, 1979, WITHOUT DEFINITE PLANS TO RETURN,
AS AN EFFORT TO OBTAIN THE SERVICES OF A FEDERAL MEDIATOR HAD FAILED,
AND THE PARTIES WERE NOT THEN IN POSITION TO KNOW IF AND WHEN A MEDIATOR
WOULD BE AVAILABLE. THE RECORD DID DISCLOSE THAT A MEDIATOR WOULD NOT
HAVE BEEN IMMEDIATELY AVAILABLE TO THE PARTIES. THUS, THERE WAS A GREAT
DEAL OF UNCERTAINTY AS TO WHEN THE PARTIES WOULD RETURN TO THE
BARGAINING TABLE. THE UNION NEGOTIATING TEAM LEFT THE BARGAINING TABLE
TO PREPARE FOR NEGOTIATIONS IN THE FUTURE, BUT THE DATE AND TIME OF SUCH
FUTURE MEETING WAS AT BEST UNCERTAIN.
SECTION 7131(A) PROVIDES FOR GRANT OF OFFICIAL TIME FOR CERTAIN
PURPOSES, INCLUDING TIME SPENT "IN THE NEGOTIATION OF A COLLECTIVE
BARGAINING AGREEMENT." IT MUST BE HELD THAT, UNDER THE SPECIAL FACTUAL
PATTERN PRESENTED HERE, THE PARTIES WERE NOT, DURING THE AFTERNOON OF
NOVEMBER 5, 1979, ENGAGED "IN THE NEGOTIATION OF A COLLECTIVE BARGAINING
AGREEMENT." IN LIGHT OF THE FOREGOING IT IS UNNECESSARY TO DECIDE
WHETHER AN AGENCY WOULD BE OBLIGATED TO GRANT OFFICIAL TIME IN OTHER
SITUATIONS ARISING OUT OF ACTUAL NEGOTIATIONS. THE AUTHORITY'S DECISION
ON NEGOTIABILITY IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1962, 3 FLRA NO. 47 (MAY 30, 1980), IS OF SPECIAL
INTEREST ON THIS POINT. THE DECISION INVOLVED THE QUESTION OF WHETHER
OFFICIAL TIME SHOULD BE GRANTED FOR TIME SPENT IN PREPARATION FOR
CONTRACT NEGOTIATIONS. THE AUTHORITY HELD:
IN SUMMARY, AS INDICATED ABOVE, THE AMOUNT OF OFFICIAL TIME TO BE
USED BY UNION NEGOTIATORS
TO PREPARE FOR COLLECTIVE BARGAINING NEGOTIATIONS IS A MATTER WHICH
FALLS WITHIN THE DUTY TO
BARGAIN AS PROVIDED IN SECTION 7131(D) OF THE STATUTE, AS
DISTINGUISHED FROM THE USE OF
OFFICIAL TIME BY EMPLOYEES REPRESENTING AN EXCLUSIVE REPRESENTATIVE
IN THE ACTUAL "NEGOTIATION
OF A COLLECTIVE BARGAINING AGREEMENT" WHICH IS EXPRESSLY AUTHORIZED
BY SECTION 7131(A) OF THE
STATUTE ITSELF . . . . MOREOVER, AS PREVIOUSLY STATED, THE USE OF
OFFICIAL TIME TO PREPARE
FOR NEGOTIATIONS IS A MATTER WHICH IS NOT EXCEPTED FROM THE DUTY TO
BARGAIN AS "INTERNAL
BUSINESS OF A LABOR ORGANIZATION" UNDER SECTION 7131(B) OF THE
STATUTE.
THE QUOTED LANGUAGE INDICATES THAT AN AGENCY MUST FIRST AGREE TO A
GRANT OF OFFICIAL TIME FOR PERIODS SPENT IN PREPARATION FOR COLLECTIVE
BARGAINING BEFORE MEMBERS OF A UNION BARGAINING COMMITTEE MAY RECEIVE
OFFICIAL TIME FOR SUCH ACTIVITY. HERE THE EVIDENCE INDICATES THAT THE
UNION AND THE RESPONDENT DID NOT ENTER INTO SUCH AN AGREEMENT.
CONCLUSION
IT IS CONCLUDED THAT A PREPONDERANCE OF THE EVIDENCE DOES NOT SUPPORT
ALLEGATIONS THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1)(5) AND (8) OF
THE STATUTE. UPON THE BASIS OF THE FOREGOING, IT IS RECOMMENDED THAT
THE AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5 C.F.R.SEC.
2423.29(C).
ORDER
IT IS HEREBY ORDERED THAT THE CONSOLIDATED COMPLAINT RELATING TO CASE
NO. 1-CA-195 AND CASE NO. 1-CA-196, BE, AND HEREBY IS, DISMISSED.
LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
DATED: JANUARY 30, 1981
WASHINGTON, D.C.
--------------- FOOTNOTES: ---------------
/1/ AS TO THE JUDGE'S CONCLUSION REGARDING THE DUTY TO NEGOTIATE IN
GOOD FAITH, THE AUTHORITY NOTES THAT SECTION 7114(B) OF THE STATUTE
PROVIDES, IN RELEVANT PART, THAT SUCH DUTY SHALL INCLUDE THE OBLIGATION:
"(1) TO APPROACH THE NEGOTIATIONS WITH A SINCERE RESOLVE TO REACH A
COLLECTIVE BARGAINING AGREEMENT; . . . (3) TO MEET AT REASONABLE TIMES
AND CONVENIENT PLACES AS FREQUENTLY AS MAY BE NECESSARY, AND TO AVOID
UNNECESSARY DELAYS . . . ." SEE ALSO, SECTION 7103(A)(12) (DEFINITION OF
COLLECTIVE BARGAINING), AND DEPARTMENT OF THE AIR FORCE, SCOTT AIR FORCE
BASE, ILLINOIS, 5 FLRA NO. 2(1981) IN WHICH BOTH OF THE PRECEDING
SECTIONS WERE DISCUSSED.
/2/ PRIOR TO THE HEARING, CASE NOS. 1-CA-16 AND 1-CA-103 WERE
CONSOLIDATED, AND CASE NOS. 1-CA-195 AND 1-CA-196 WERE CONSOLIDATED.
THE FOUR CASES WERE IN TURN CONSOLIDATED. ON THE BASIS OF A STIPULATION
OF THE PARTIES, AND CONSIDERATIONS RELATING TO EXPEDITIOUS DISPOSITION
OF THE PROCEEDINGS, CASE NOS. 1-CA-195 AND 1-CA-196 WERE SEVERED FROM
CASE NOS. 1-CA-16 AND 1-CA-103, AND THE TWO CONSOLIDATED PROCEEDINGS
WERE SEPARATELY. (TR. 3 AND 87, IN CASE NOS. 1-CA-16 AND 1-CA-103).
DESPITE THE SEVERANCE, COUNSEL FOR THE GENERAL COUNSEL FILED A
POST-HEARING BRIEF CONSOLIDATING ARGUMENT RELATING TO THE FOUR CASES.
PORTIONS OF THE MENTIONED BRIEF RELATING TO CASE NOS. 16 AND 103 HAVE
BEEN GIVEN NO CONSIDERATION IN CONNECTION WITH THE DISPOSITION OF CASE
NOS. 1-CA-195 AND 1-CA196.
/3/ COUNSEL FOR THE GENERAL COUNSEL UTILIZED THE LAST MENTIONED
GENERAL ALLEGATION AS A BASIS FOR AN ATTEMPT TO PROVE THAT RESPONDENT
VIOLATED SECTIONS 7116(A)(1) AND (5) OF THE STATUTE BY TRYING TO EFFECT
THE NEGOTIATION OF ISSUES WHICH THE PANEL HAD PREVIOUSLY CONSIDERED AND
RESOLVED (TR. 7-8). ALTHOUGH THE ATTENTION OF COUNSEL FOR THE GENERAL
COUNSEL WAS INVITED TO THE FAILURE TO ALLEGE SPECIFIC OTHER CONDUCT
CALCULATED TO FRUSTRATE UNION ATTEMPTS TO CONSUMMATE A MEANINGFUL
COLLECTIVE BARGAINING AGREEMENT, NO MOTION TO AMEND THE COMPLAINT WAS
FILED OR OTHERWISE RAISED. HOWEVER, THE ALLEGATION IN QUESTION WAS
FULLY LITIGATED DURING THE COURSE OF THE HEARING, AND WAS SPECIFICALLY
ADDRESSED BY THE PARTIES IN POST-HEARING BRIEFS. UNDER THE SPECIAL
CIRCUMSTANCES OUTLINED, THE GENERAL ALLEGATION ALLUDED TO IS, EXCEPT AS
HEREINAFTER LIMITED, DEEMED TO INCLUDE ALLEGED ATTEMPTS TO EFFECT THE
NEGOTIATION OF ISSUES WHICH THE PANEL HAD PREVIOUSLY CONSIDERED AND
RESOLVED. OKLAHOMA CITY AIR LOGISTICS CENTER, TINKER AIR FORCE BASE,
OKLAHOMA, 3 FLRA NO. 82 (JUNE 27, 1980); PHILADELPHIA NAVAL SHIPYARD, 4
FLRA NO. 38 (SEPTEMBER 26, 1980).
/4/ NATIONAL GUARD TECHNICIANS ARE EMPLOYED PURSUANT TO THE NATIONAL
GUARD TECHNICIANS ACT OF 1968 AS AMENDED, 32 U.S.C. 709, IN FULL-TIME
CIVILIAN POSITIONS TO ADMINISTER AND TRAIN THE NATIONAL GUARD AND TO
MAINTAIN AND REPAIR THE SUPPLIES ISSUED TO THE NATIONAL GUARD OR THE
ARMED FORCES. AS A CONDITION OF THEIR CIVILIAN EMPLOYMENT UNDER THE
ACT, SUCH TECHNICIANS MUST BECOME AND REMAIN MEMBERS OF THE NATIONAL
GUARD AND HOLD THE MILITARY GRADE SPECIFIED FOR THE TECHNICIAN POSITION.
/5/ COLONEL BECK'S TESTIMONY ALSO REFLECTS EVIDENCE OF NOTIFICATION
TO THE UNION THAT THE RESPONDENT WOULD COMPLY WITH THOSE PORTIONS OF THE
PANEL'S DECISION AND ORDER WHICH RELATED TO CONTRACT EXTENSION AND
PERFORMANCE RATINGS (TR. 117-118).
/6/ A HEARING IN THE CASE WAS HELD ON FEBRUARY 5, 1980; AND ON APRIL
9, 1980, ADMINISTRATIVE LAW JUDGE SALVATORE J. ARRIGO FOUND THAT
RESPONDENT'S FAILURE TO COMPLY WITH THE MENTIONED PORTION OF THE PANEL'S
DECISION AND ORDER CONSTITUTED A VIOLATION OF SECTIONS 7116(A)(1) AND
(6) OF THE STATUTE. JUDGE ARRIGO RECOMMENDED THAT THE AUTHORITY ISSUE A
CEASE AND DESIST ORDER, AND REQUIRE OTHER AFFIRMATIVE RELIEF (JT.EXH.
28). SPECIFICALLY, IT WAS RECOMMENDED THAT THE AUTHORITY ORDER THE
RESPONDENT TO CEASE AND DESIST FROM (A) REFUSING TO HONOR AND ABIDE BY
THOSE PORTIONS OF THE JANUARY 9, 1979 DECISION AND ORDER OF THE PANEL
WHICH RELATED TO THE WEARING OF THE MILITARY UNIFORM; (B) REFUSING TO
ADOPT CERTAIN LANGUAGE "IN THEIR COLLECTIVE BARGAINING AGREEMENT WITH
(THE UNION)," AND (C) REFUSING TO AGREE UPON AND INCORPORATE IN THE
COLLECTIVE BARGAINING AGREEMENT WITH (THE UNION), THOSE CIRCUMSTANCES
AND OCCASIONS FOR WHICH THE WEARING OF THE MILITARY UNIFORM MAY BE
REQUIRED. COUNSEL FOR THE GENERAL COUNSEL STIPULATED THAT NEITHER
FACTUAL FINDINGS NOR REMEDY WAS SOUGHT IN THE INSTANT CASE, WITH RESPECT
TO THE RESPONDENT'S REFUSAL TO COMPLY WITH PORTIONS OF THE PANEL'S
DECISION AND ORDER RELATING TO THE WEARING OF THE MILITARY UNIFORM, AND
FURTHER THAT EVIDENCE RELATING TO ISSUES PERTAINING TO THE WEARING OF
THE UNIFORM WOULD BE OFFERED SOLELY AS "BACKGROUND EVIDENCE. (TR.
13-14).
/7/ THE CFTM TEST PROGRAM WAS DESIGNED TO DETERMINE THE NATIONAL
GUARD'S CAPACITY TO ATTRACT PERSONNEL INTO MILITARY POSITIONS WHICH HAD
BEEN FILLED WITH CIVILIAN MEMBERS OF THE BARGAINING UNIT REPRESENTED BY
THE UNION. BECAUSE MILITARY PERSONNEL WERE EXCLUDED FROM THE BARGAINING
UNIT, THE PROGRAM WAS, OF CONCERN TO THE UNION. CASE NOS. 1-CA-16 AND
1-CA-103, SEVERED PRIOR TO HEARING, WERE BASED ON ALLEGED UNFAIR LABOR
PRACTICES ARISING OUT OF THE RESPONDENT'S IMPLEMENTATION OF THE PROGRAM.
/8/ THE FOLLOWING ARTICLES, TENTATIVELY AGREED TO BY THE PARTIES
DURING THE FALL OF 1977, WOULD HAVE BEEN AFFECTED BY THE PROPOSALS
FORWARDED BY MR. TEDESCO: ARTICLE 4 (RIGHTS OF TECHNICIANS); ARTICLE
10 (EQUAL EMPLOYMENT OPPORTUNITY); ARTICLE 13 (REDUCTION IN FORCE);
ARTICLE 14 (MERIT PROMOTION); AND ARTICLE 15 (DETAIL OF TECHNICIANS).
/9/ NEVERTHELESS, MR. YOUNG CONTINUED TO WORK CLOSELY WITH MR.
TEDESCO. HE SOUGHT HIS ADVICE AND GUIDANCE, AND CONSULTED WITH HIM.
(TR. 63).
/10/ THE RESPONDENT'S COUNTERPROPOSAL RELATING TO PERFORMANCE RATINGS
DIFFERED FROM THE UNION PROPOSAL WHICH THE PANEL HAD ORDERED THE PARTIES
TO ADOPT. AS ORIGINALLY CONSIDERED BY THE PANEL, THE PROPOSAL PROVIDED
THAT ALL TECHNICIAN PERFORMANCE RATINGS BE ACCOMPLISHED IN ACCORDANCE
WITH TECHNICIAN PERSONNEL PAMPHLET 902 (TPP 902), DATED SEPTEMBER 30,
1975. MANAGEMENT WAS THEN AWARE OF CERTAIN REVISIONS OF TPP 902, AND
EVENTUAL EXPIRATION OF TPP 902 DATED SEPTEMBER 30, 1975. BECAUSE OF
THESE CONSIDERATIONS MANAGEMENT SOUGHT TO AVOID THE PROBLEM OF
OBSOLESCENCE BY PROVIDING THAT PERFORMANCE RATINGS BE ACCOMPLISHED IN
ACCORDANCE WITH TPP 902 "DATED 30 SEPTEMBER 1975, AND SUBSEQUENT
REGULATORY ISSUANCES." ALSO, IT WAS ESTABLISHED THAT A CHANGE IN RULES
RELATING TO PERFORMANCE RATINGS WAS ANTICIPATED AS A RESULT OF PASSAGE
OF THE CIVIL SERVICE REFORM ACT OF 1978 (TR. 116).
/11/ THE UNCONTRADICTED TESTIMONY OF COLONEL BLEWETT AND COLONEL BECK
IS ACCEPTED AS TRUE ON THIS FACTUAL ISSUE. ALTHOUGH MR. YOUNG AND MR.
TEDESCO WERE UNABLE TO RECALL SPECIFICALLY WHETHER THERE WAS DISCUSSION
OF THE EFFECT OF INITIALING CONTRACT ARTICLES IN 1977, THE TESTIMONY OF
MR. YOUNG AND MR. TEDESCO REFLECTS THAT SUCH A DISCUSSION MAY HAVE
OCCURRED.
/12/ THESE ARTICLES TOGETHER WITH THOSE FORWARDED SUBSEQUENTLY ARE
INCLUDED IN THE RECORD AS JT.EXH. 25.
/13/ AS PREVIOUSLY NOTED, THE UNION ALSO TOOK THE POSITION THAT
CERTAIN ARTICLES TENTATIVELY AGREED TO IN 1977, WERE SUBJECT TO
RENEGOTIATION BASED UPON PASSAGE OF THE REFORM ACT. IN THIS AREA OF
INTEREST THE UNION ACKNOWLEDGED AT THIS POINT IN THE NEGOTIATIONS THAT
ARTICLE 12 (GRIEVANCE PROCEDURE), ARTICLE 17 (ARBITRATION), AND OTHER
LIMITED NON-SUBSTANTIVE CHANGES CAUSED BY THE REFORM ACT SHOULD BE
CONSIDERED. ALTHOUGH NOT ENTIRELY CLEAR FROM THE RECORD, IT APPEARS
THAT THE UNION WAS INSISTING UPON EXECUTION OF AN AGREEMENT BASED UPON
THE PRIOR 1977 AGREEMENTS AND THEN FINAL DISPOSITION OF ISSUES RAISED BY
THE DECISION AND ORDER OF THE PANEL, AND THE REFORM ACT.
/14/ THE CHARGE FILED BY THE UNION ON NOVEMBER 19, 1979 IN CASE NO.
1-CA-196,REFLECTS AN ALLEGATION THAT THE RESPONDENT STATED AN INTENTION
TO RESOLVE THESE TWO ISSUES.
/15/ THE PARTIES STIPULATED THAT FOUR HOURS OF OFFICIAL TIME WERE
GRANTED TO THE UNION NEGOTIATING TEAM FOR TIME SPENT AT THE TABLE DURING
THE MORNING OF NOVEMBER 5TH.
/15/ THE CHARGE IN CASE NO. 1-CA-195 WAS FILED ON NOVEMBER 16, 1979,
AND THE CHARGE IN CASE NO. 1-CA-196 WAS FILED ON NOVEMBER 19, 1979
(G.C.EXHS. 1(A) AND (B)).
/17/ THE UNION DID NOT ACKNOWLEDGE THE NEED TO RENEGOTIATE ARTICLE 4
(RIGHTS OF TECHNICIANS) UNTIL DECEMBER 17, 1979 (JT.EXH. 23).
/18/ THERE IS NO INDICATION IN THE RECORD THAT THE UNION EVER
EXPRESSED AN INTENT TO RESCIND OR WITHDRAW THEIR EFFORT TO EFFECT
MODIFICATION OF THESE ARTICLES. ALSO, THERE WAS NO EVIDENCE INTRODUCED
TO SHOW THAT THE UNION AND THE RESPONDENT, AFTER THE UNION'S ATTEMPT TO
MODIFY, AGREED AGAIN TO THE LANGUAGE ADOPTED IN 1977 REGARDING ARTICLES
4, 10, 13, 14 AND 15. THE FACT THAT MR. TEDESCO SOUGHT TO EFFECT
MODIFICATION OF THESE ARTICLES IN NEGOTIATING SESSIONS DISASSOCIATED
FROM THOSE DEALING WITH THE RENEWAL OF A COLLECTIVE BARGAINING AGREEMENT
DID NOT OPERATE TO DIMINISH THE UNION'S WITHDRAWAL FROM TENTATIVE
AGREEMENTS RELATING TO THESE PROVISIONS.
/19/ THE BRIEF FILED DOES GENERALLY REFER TO RESPONDENT'S EFFORTS TO
EFFECT RENEGOTIATION OF ARTICLES 1, 2, 7, 10, 11, 13, AND 15 AS EVIDENCE
OF BAD FAITH BARGAINING. AS NOTED ARTICLE 1 OF THE "DRAFT-NEGOTIATED
AGREEMENT" IS IDENTICAL IN SUBSTANCE TO THE CORRESPONDING ARTICLE
ADOPTED IN 1977, EXCEPT FOR REMOVAL OF A REFERENCE TO EXECUTIVE ORDER
11491, AND INSERTION OF AN APPROPRIATE REFERENCE TO THE REFORM ACT. NO
SUBSTANTIVE CHANGE OF ARTICLE 1, WAS SUGGESTED BY THE RESPONDENT, AND
THE REVISION PROPOSED WAS IN ACCORDANCE WITH THE INTENT OF THE PARTIES
TO BRING ARTICLES NEGOTIATED IN 1977, INTO CONFORMANCE WITH THE REFORM
ACT. ARTICLE 2 INVOLVED ONLY MINOR EDITORIAL CHANGES, ARTICLE 7 WAS NOT
CHANGED AT ALL, AND ARTICLE 11 INVOLVED A MINOR CHANGE WHICH ARGUABLY
WOULD HAVE INURED TO THE BENEFIT OF THE UNION. ARTICLES 10, 13, AND 15
WERE AMONG THOSE WHICH THE UNION ENDEAVORED TO RENEGOTIATE AS A RESULT
OF THE CFTM TEST PROGRAM.
/20/ THE RECORD REFLECTS THAT NEITHER THE RESPONDENT NOR THE UNION
WERE ENTIRELY EXACT CONCERNING THE NUMBER AND NATURE OF CHANGES WHICH
WOULD BE REQUIRED BY THE REFORM ACT. THE UNION DID NOT ACKNOWLEDGE THE
NEED TO RECONSIDER ARTICLE 4 UNTIL DECEMBER OF 1979. IT WOULD NOT BE
UNREASONABLE TO CONCLUDE THAT A BARGAINING TABLE AGREEMENT ON FINAL
WORDING OF ALL ARTICLES WAS NECESSARY IN ORDER TO MAKE CERTAIN THAT EACH
OF THE 21 ARTICLES PREVIOUSLY ADOPTED WERE NOT, AS WORDED, INCONSISTENT
WITH THE REFORM ACT. ARTICLES WHICH INVOLVED NO CHANGE OR MINOR CHANGE
COULD HAVE BEEN IMMEDIATELY ADOPTED BY THE UNION.