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)  

 8 FLRA No. 71
 
 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-16
                                                      1-CA-103
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
 HIS DECISION FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR
 LABOR PRACTICES ALLEGED IN THE COMPLAINTS AND RECOMMENDING THAT THE
 COMPLAINTS BE DISMISSED IN THEIR ENTIRETY.  THEREAFTER THE GENERAL
 COUNSEL FILED EXCEPTIONS TO CERTAIN PORTIONS OF THE ADMINISTRATIVE LAW
 JUDGE'S DECISION, WITH A SUPPORTING MEMORANDUM.
 
    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 DECISION AND THE ENTIRE RECORD, THE AUTHORITY ADOPTS THE JUDGE'S
 FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINTS IN CASE NOS. 1-CA-16 AND
 1-CA-103 BE, AND THEY HEREBY ARE, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., MARCH 26, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    COLONEL NICHOLAS J. ANGELIDES
    FOR THE RESPONDENT
 
    PAUL E. STANZLER, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    BEFORE:  LOUIS SCALZO
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS CASE AROSE AS AN UNFAIR LABOR PRACTICE PROCEEDING UNDER THE
 PROVISIONS OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 92
 STAT. 1191, 5 U.S.C.  SEC. 7101, ET SEQ., (HEREINAFTER CALLED "THE
 STATUTE") AND THE RULES AND REGULATIONS ISSUED THEREUNDER.
 
    ON FEBRUARY 20, 1980 AN UNFAIR LABOR PRACTICE COMPLAINT WAS FILED BY
 THE REGIONAL DIRECTOR, FIRST REGION, FEDERAL LABOR RELATIONS AUTHORITY,
 BOSTON, MASSACHUSETTS, AGAINST THE DIVISION OF MILITARY AFFAIRS, STATE
 OF NEW YORK, ALBANY, NEW YORK (RESPONDENT), ON BEHALF OF THE NEW YORK
 COUNCIL OF ASSOCIATION OF CIVILIAN TECHNICIANS, INC., (UNION OR ACT),
 THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ALL NEW YORK ARMY AND AIR
 NATIONAL GUARD TECHNICIANS, EXCLUDING ALL SUPERVISORS, MANAGEMENT
 OFFICIALS AND TECHNICIANS ENGAGED IN NON-CLERICAL PERSONNEL WORK.  THE
 CONSOLIDATED COMPLAINT ALLEGED THAT THE RESPONDENT VIOLATED SECTIONS
 7116(A)(1) AND (5) OF THE STATUTE.  /1/ THE ALLEGED VIOLATIONS IN CASE
 NO. 1-CA-16 WERE BASED UPON ALLEGATIONS THAT FROM ON OR ABOUT FEBRUARY
 21, 1979, THE RESPONDENT FAILED TO NEGOTIATE WITH THE UNION CONCERNING
 THE IMPACT AND IMPLEMENTATION OF A CONGRESSIONALLY MANDATED PROGRAM
 DESIGNED TO CONVERT CERTAIN NATIONAL GUARD TECHNICIAN POSITIONS INTO
 FULL TIME MILITARY POSITIONS UNDER A CONVERSION TO FULL TIME MILITARY
 (CFTM) TEST PROGRAM;  /2/ THAT SINCE ON OR ABOUT FEBRUARY 23, 1979, THE
 RESPONDENT REFUSED TO FURNISH, UPON REQUEST, CERTAIN NECESSARY AND
 RELEVANT INFORMATION RELATING TO THE NUMBER OF POSITIONS SUBJECT TO THE
 CFTM PROGRAM, AND THE LOCATION OF SUCH POSITIONS;  AND THAT ON OR ABOUT
 MARCH 14, 1979, THE RESPONDENT BYPASSED THE UNION AND BARGAINED DIRECTLY
 AND INDIVIDUALLY WITH BARGAINING UNIT EMPLOYEES CONCERNING TERMS AND
 CONDITIONS OF EMPLOYMENT BY DISSEMINATING DIRECTLY TO UNIT EMPLOYEES,
 CERTAIN INFORMATION RELATING TO THE PROGRAM.
 
    ALLEGED VIOLATIONS OF SECTION 7116(A)(1) AND (5) IN CASE NO.
 1-CA-103 WERE BASED UPON ALLEGATIONS THAT THE RESPONDENT UNILATERALLY
 DETERMINED, WITHOUT NOTIFYING AND BARGAINING WITH THE UNION, THAT A GS-5
 TECHNICIAN IN ITS BROOKLYN, NEW YORK ARMORY "WAS AN ENTRY-LEVEL POSITION
 AND THUS SUBJECT TO CONVERSION UNDER THE CFTM TEST PROGRAM."
 
    COUNSEL FOR THE RESPONDENT ARGUES THAT THE RESPONDENT SATISFIED ITS
 OBLIGATION TO BARGAIN CONCERNING THE IMPACT AND IMPLEMENTATION OF THE
 PROGRAM;  THAT THE RESPONDENT DID NOT UNLAWFULLY REFUSE TO PROVIDE TO
 THE UNION, RELEVANT AND NECESSARY INFORMATION CONCERNING THE PROGRAM;
 THAT RESPONDENT'S PUBLICATION OF INFORMATION RELATING TO THE PROGRAM AND
 DISSEMINATION OF SUCH INFORMATION TO BARGAINING UNIT EMPLOYEES DID NOT
 CONSTITUTE A BYPASS OF THE EXCLUSIVE REPRESENTATIVE OR DIRECT DEALING
 WITH UNIT EMPLOYEES CONCERNING THE TERMS AND CONDITIONS OF EMPLOYMENT;
 AND LASTLY THAT THE RESPONDENT DID NOT VIOLATE ITS OBLIGATION TO BARGAIN
 BY UNILATERALLY DETERMINING THAT A GS-5 TECHNICIAN POSITION IN ITS
 BROOKLYN, NEW YORK ARMORY, WAS AN ENTRY LEVEL POSITION, AND SUBJECT TO
 CONVERSION UNDER THE CFTM TEST PROGRAM.
 
    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, /3/ AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF FACT,
 CONCLUSIONS AND RECOMMENDATIONS.
 
                             CASE NO. 1-CA-16
 
    INITIAL NOTICE OF THE CFTM TEST PROGRAM AND THE MEETING OF FEBRUARY
 21, 1979
 
    ON FEBRUARY 13, 1979, COLONEL RICHARD BECK, RESPONDENT'S ASSISTANT
 TECHNICIAN PERSONNEL OFFICER, TELEPHONED FREDERICK S. TEDESCO, STATE
 CHAIRMAN OF ACT.  /4/ COLONEL BECK OUTLINED THE KEY FEATURES OF THE CFTM
 TEST PROGRAM FOR MR. TEDESCO.  MR. TEDESCO RESPONDED BY ADVISING THAT HE
 WOULD NEED TO HAVE SOMETHING IN WRITING, OR THAT A MEETING CONCERNING
 THE SUBJECT WOULD BE NECESSARY.  THEY AGREED TO MEET AND DISCUSS THE
 PROGRAM.
 
    COLONEL BECK'S FEBRUARY 13, 1979 TELEPHONE CALL WAS PRECEDED BY
 RECEIPT, ON OR ABOUT FEBRUARY 8, 1979, OF AN ELECTRONIC MESSAGE (TWIX)
 FROM THE NATIONAL GUARD BUREAU, WASHINGTON, D.C. (JT. EXH. 11).  THE
 MESSAGE, A NINE PAGE DOCUMENT, OUTLINED THE PROPOSED IMPLEMENTATION OF
 THE CFTM TEST PROGRAM IN DETAIL.  A COPY OF THE MESSAGE WAS TRANSMITTED
 TO THE PRESIDENT OF THE ASSOCIATION OF CIVILIAN TECHNICIANS BY THE
 NATIONAL GUARD BUREAU.  THE MESSAGE INCLUDED THE CAVEAT THAT EXCLUSIVELY
 RECOGNIZED UNIONS SHOULD BE ADVISED OF THE PROGRAM, AND FURTHER THAT
 IMPACT AND IMPLEMENTATION BARGAINING OPPORTUNITIES SHOULD BE EXTENDED TO
 SUCH UNIONS UNDER THE PROVISIONS OF SECTION 7106(B)(2) AND (3) OF THE
 STATUTE.
 
    THE MEETING REQUESTED BY MR. TEDESCO WAS HELD ON FEBRUARY 21, 1979.
 THE UNION WAS REPRESENTED BY MR. TEDESCO, AND JOHN GIARRUSSO, NATIONAL
 REPRESENTATIVE OF ACT.  THE RESPONDENT WAS REPRESENTED BY COLONEL
 CLARENCE C. WALLACE, RESPONDENT'S PERSONNEL OFFICER;  AND COLONEL BECK.
 AT THE MEETING THE UNION REPRESENTATIVES ACKNOWLEDGED RECEIPT OF A COPY
 OF THE FEBRUARY 8, 1979 TWIX.  COLONEL BECK OUTLINED THE ELEMENTS OF THE
 PROPOSED IMPLEMENTATION OF THE CFTM TEST PROGRAM, AS THESE WERE SET OUT
 IN THE TWIX, AND ADVISED UNION REPRESENTATIVES OF HIS OPINION THAT THE
 TERMS AND CONDITIONS OF BARGAINING UNIT MEMBERS WOULD BE AFFECTED.  /5/
 WITH RESPECT TO THE PROPOSED IMPLEMENTATION OF THE PROGRAM, COLONEL BECK
 INFORMED THE UNION THAT REPLACEMENTS FOR ALL ENTRY LEVEL POSITIONS WOULD
 BE FILLED WITH MILITARY PERSONNEL;  THAT ANY NEWLY AUTHORIZED POSITION
 WOULD HAVE TO BE FILLED MILITARILY, WITH THE EXCEPTION THAT NON-MILITARY
 PERSONNEL AFFECTED BY REDUCTIONS IN FORCE COULD QUALIFY FOR NEWLY
 AUTHORIZED POSITIONS;  THAT ANY OTHER POSITION WHICH COULD NOT BE FILLED
 THROUGH A MERIT PROMOTION PLAN INCORPORATED INTO THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT, WOULD HAVE TO BE FILLED MILITARILY;  AND LASTLY
 THAT NO NEW HIRINGS WOULD BE PERMITTED.  /6/
 
    DURING THE COURSE OF THE MEETING MR. TEDESCO DELIVERED TO THE
 REPRESENTATIVES OF THE RESPONDENT, A LETTER DATED FEBRUARY 21, 1979,
 ADDRESSED TO COLONEL WALLACE BY MR.  TEDESCO (JT. EXH. 2).  THE LETTER
 REQUESTED THAT THE RESPONDENT ENGAGE IN IMPACT AND IMPLEMENTATION
 BARGAINING BEFORE EFFECTUATING THE CFTM TEST PROGRAM;  REQUESTED
 "WRITTEN PROPOSALS" CONCERNING THE CFTM TEST PROGRAM;  SOUGHT
 INFORMATION CONCERNING "THE NUMBER OF POSITIONS AFFECTED," AND THE AREAS
 WHEREIN SUCH "POSITIONS (WERE) LOCATED." /7/ MR. TEDESCO ALSO REQUESTED
 THAT NEGOTIATIONS BE ARRANGED 15 DAYS "FOLLOWING RECEIPT OF YOUR WRITTEN
 PROPOSALS BY ACT," AND THAT "MERIT PROMOTION AND UPWARD MOBILITY OF
 ON-BOARD TECHNICIANS BE GIVEN FULL CONSIDERATION AT ALL TIMES." /8/
 
    THE SUBJECTS RAISED IN THE LETTER DELIVERED TO THE RESPONDENT'S
 REPRESENTATIVES WERE DISCUSSED IN DETAIL AT THE FEBRUARY 21, 1979
 MEETING.  RESPONDENT'S REPRESENTATIVES ADVISED THAT THE BRIEFING
 PROVIDED, AND TWIX RECEIVED, REFLECTED THE ELEMENTS OF THE PLAN TO
 IMPLEMENT THE PROGRAM, AND THAT THE UNION, NOT THE RESPONDENT, WOULD
 HAVE TO SUPPLY APPROPRIATE PROPOSALS RELATING TO THE IMPACT AND
 IMPLEMENTATION OF THE PROGRAM, IN ORDER TO PROCEED WITH NEGOTIATIONS.
 (TR. 72, 77, 166).  WITH RESPECT TO MERIT PROMOTION, COLONEL BECK
 ADVISED THAT THE MERIT PROMOTION PLAN AND UPWARD MOBILITY OF TECHNICIANS
 WOULD NOT BE DISTURBED.  HE INFORMED THAT THE NUMBER OF POSITIONS WHICH
 WOULD BE CONVERTED IN NEW YORK STATE WAS NOT THEN IN EXISTENCE THAT NO
 SPECIFIC QUOTA OR NUMBER OF POSITIONS HAD BEEN ALLOCATED TO THE
 RESPONDENT BY THE NATIONAL GUARD BUREAU FOR CONVERSION, AND THAT IT WAS
 THEN IMPOSSIBLE TO ASCERTAIN THE GEOGRAPHIC LOCATION OF FUTURE
 CONVERSIONS BECAUSE SPECIFIC VACANCIES WERE NOT THEN KNOWN TO THE
 RESPONDENT.
 
    IT WAS ESTABLISHED THAT THE RESPONDENT, AS OF FEBRUARY 21, 1979,
 COULD NOT HAVE BEEN AWARE OF DETAILS OF INFORMATION RELATING TO THE
 NUMBER OF PROSPECTIVE CONVERSIONS WHICH MIGHT BE GENERATED BY
 RESIGNATIONS, TERMINATIONS, OR NEWLY CREATED JOB OPENINGS, AS SUCH
 INFORMATION WAS NOT THEN IN EXISTENCE.  MANAGEMENT DID HAVE INFORMATION
 AVAILABLE AS TO CERTAIN EXISTING VACANCIES AT THE TIME OF THE MEETING,
 BUT DID NOT KNOW WHICH POSITIONS WOULD BE LEFT UNFILLED, AND DID NOT
 KNOW THE POTENTIAL EFFECT OF THE APPLICATION OF MERIT PROMOTION
 PROCEDURES TO THE FILLING OF VACANT NON-ENTRY LEVEL POSITIONS.
 
    THE UNION MADE NO FURTHER REQUESTS FOR INFORMATION AFTER THE
 EXPLANATION OUTLINED, NOR WAS THE ORIGINAL REQUEST MODIFIED IN ANY WAY.
 THE UNION TOOK THE POSITION THAT THE CFTM TEST PROGRAM COULD NOT BE
 IMPLEMENTED IN THE ABSENCE OF AGREEMENT (TR. 166).
 
    ALTHOUGH COUNSEL FOR THE GENERAL COUNSEL ARGUES THAT THERE WAS A
 REFUSAL TO BARGAIN AT THE FEBRUARY 21ST MEETING, CAREFUL CONSIDERATION
 OF THE EVIDENCE RELATING TO THE ALLEGED REFUSAL, TOGETHER WITH THE
 TESTIMONY OF COLONEL BECK, CONVINCINGLY SHOWS THAT RESPONDENT MERELY
 REFUSED TO BARGAIN CONCERNING THE DECISION TO INITIATE THE CFTM TEST
 PROGRAM, AND NOT CONCERNING THE IMPACT AND IMPLEMENTATION OF THE
 PROGRAM.
 
    CORRESPONDENCE FOLLOWING FEBRUARY 21, 1979 MEETING AND EFFECTUATION
 OF CFTM TEST PROGRAM
 
    ON FEBRUARY 23, 1979, COLONEL WALLACE WROTE TO MR. TEDESCO AND
 FORMALLY APPRISED HIM THAT HIS REQUEST FOR NEGOTIATIONS AND DEMAND FOR
 PROPOSALS, AS ARTICULATED IN THE LETTER DATED FEBRUARY 21, 1979, AND
 "WAS APPROPRIATE" (JT. EXH. 3).  ON MARCH 3, 1979, MR.  TEDESCO
 RESPONDED BY MAILGRAM AND DEMANDED THAT THE RESPONDENT STATE WHETHER OR
 NOT RESPONDENT WAS REFUSING TO NEGOTIATE CONCERNING THE IMPACT AND
 IMPLEMENTATION OF THE CFTM TEST PROGRAM.  HE DEMANDED A "RETURN TO THE
 TABLE TO RECEIVE (RESPONDENT'S) PROPOSALS" RELATIVE TO THE PROGRAM (JT.
 EXH.  4).
 
    ON MARCH 5, 1979, THE RESPONDENT MILITARILY FILLED THE FIRST
 TECHNICIAN POSITION IN ACCORDANCE WITH PROGRAM GUIDELINES OUTLINED.
 THIS POSITION WAS SUPERVISORY IN NATURE AND WAS NOT INCLUDED WITHIN THE
 UNIT OF RECOGNITION.  /9/ ON MARCH 7, 1979, THE FIRST BARGAINING UNIT
 POSITION WAS CONVERTED AS A RESULT OF AN UNSUCCESSFUL PRIOR EFFORT TO
 FILL THE POSITION THROUGH MERIT PROMOTION PROCEDURES.  /10/ THE UNION
 WAS MADE AWARE OF THE VACANCY AS THE ANNOUNCEMENT CONCERNING THE
 POSITION HAD BEEN DISTRIBUTED TO THE STATE CHAIRMAN SOME SIX TO EIGHT
 WEEKS PRIOR TO CONVERSION UNDER THE PROGRAM.
 
    IT WAS DISCLOSED THAT THE UNION REGULARLY RECEIVED VACANCY
 ANNOUNCEMENTS ISSUED UNDER THE PROVISIONS OF THE MERIT PROMOTION PLAN
 INCORPORATED INTO THE COLLECTIVE BARGAINING AGREEMENT GOVERNING THE
 LABOR RELATIONS OF THE PARTIES.  /11/ THE UNION RECEIVED SUCH
 ANNOUNCEMENTS A DAY OR TWO BEFORE POSTING, AND SIX TO EIGHT WEEKS BEFORE
 THE FILLING OF THE POSITION, OR DETERMINATION THAT THE POSITION COULD
 NOT BE FILLED.  THUS, THE UNION WOULD HAVE BEEN AWARE OF POSSIBLE
 CONVERSIONS RESULTING FROM A FAILURE TO FILL SUCH POSITIONS THROUGH USE
 OF THE MERIT PROMOTION PLAN IN EFFECT.  RESPONDENT'S REPRESENTATIVES
 REGULARLY RESPONDED TO UNION INQUIRIES CONCERNING SUCH CONVERSIONS.
 
    ON MARCH 8, 1979, COLONEL WALLACE RESPONDED TO THE MARCH 3, 1979
 MAILGRAM (JT, EXH. 5).  HE ADVISED THAT THE RESPONDENT HAD ADOPTED THE
 PROCEDURES SET OUT IN THE FEBRUARY 8, 1979 TWIX FROM THE NATIONAL GUARD
 BUREAU.  THE LETTER CLOSED WITH THE FOLLOWING PARAGRAPH:
 
    CONSEQUENTLY, SINCE WE HAVE NOT CHANGED PAST PRACTICE OR INITIATED
 ANY CHANGE OR A
 
    UNILATERAL BASIS BEYOND THAT REQUIRED BY THE CONGRESSIONAL MANDATE,
 WE CONSIDER THAT YOUR
 
    REQUEST TO BE INFORMED ABOUT A DECISION OF NON-NEGOTIABILITY IS
 INAPPLICABLE.  ESSENTIALLY, WE
 
    HAVE NOT TAKEN NEW INITIATIVES WHICH ARE APPROPRIATE FOR
 NEGOTIATIONS.  IF YOU DISAGREE WE
 
    REQUEST SPECIFIC ALLEGATIONS OF FACT.
 
    THE RESPONDENT SUBSEQUENTLY DISSEMINATED A MEMORANDUM RELATING TO THE
 PROGRAM TO ALL TECHNICIANS IN THE NEW YORK ARMY NATIONAL GUARD (JT. EXH.
 6).  THE MEMORANDUM, DATED MARCH 14, 1979, AND CAPTIONED "TECHNICIAN
 TOPIC 79-3-(SPECIAL ISSUE - CFTM)," SET FORTH DETAILS RELATING TO THE
 CFTM TEST PROGRAM.  THE MEMORANDUM WAS ISSUED TO DISPEL FALSE AND
 MISLEADING RUMORS REGARDING THE NATURE OF THE CFTM TEST PROGRAM
 IMPLEMENTED BY EXPLAINING THE NATURE OF THE PROGRAM.  INFORMATION
 REFLECTED IN THE MEMORANDUM, SET OUT IN A SERIES OF FACTUAL STATEMENTS,
 WAS DERIVED PRIMARILY FROM THE FEBRUARY 8, 1979 TWIX, AND THE FEDERAL
 PERSONNEL MANUAL.  OTHER INFORMATION REFLECTED STATEMENTS OF
 LONG-STANDING EXISTING PERSONNEL POLICIES AND PRACTICES ALREADY IN PLACE
 AT THAT TIME.
 
    THE UNION DID NOT TRANSMIT IMPACT AND IMPLEMENTATION BARGAINING
 PROPOSALS CONCERNING THE PROGRAM UNTIL MAY 15, 1979.  ON THIS DATE MR.
 TEDESCO FORWARDED TO COLONEL WALLACE A SERIES OF EIGHT SPECIFIC
 PROPOSALS CHARACTERIZED AS RELATING TO THE IMPACT OF THE CFTM TEST
 PROGRAM ON BARGAINING UNIT MEMBERS (JT. EXH. 7).  BETWEEN MAY 15, 1979
 AND JUNE 5, 1979, COLONEL BECK PHONED MR. TEDESCO TO REQUEST
 CLARIFICATION OF THE PROPOSALS, AS THEY DID NOT, AS PHRASED, APPEAR TO
 COLONEL BECK TO RELATE TO THE IMPACT AND IMPLEMENTATION OF THE CFTM TEST
 PROGRAM.  MR.  TEDESCO REPLIED, "YOU HAVE THE PROPOSALS, YOU DEAL WITH
 THOSE PROPOSALS, RESPOND TO THOSE PROPOSALS," AND ADVISED THAT COLONEL
 BECK WOULD HAVE TO DEAL WITH THE PROPOSALS AS THEY WERE (TR. 86,
 155-156).  /12/
 
    ON JUNE 5, 1979, COLONEL WALLACE FORMALLY RESPONDED TO THE MAY 15,
 1979 PROPOSALS (JT. EXH. 9).  THE LETTER REQUESTED A MEETING "TO DISCUSS
 PROPOSALS APPROPRIATE FOR NEGOTIATION," AND SUGGESTED JUNE 13, 1979 AS A
 MEETING DATE.  COLONEL WALLACE EXPRESSED THE VIEW THAT PROPOSALS ONE,
 TWO, THREE AND EIGHT WERE NON-NEGOTIABLE BECAUSE THEY INVOLVED RESERVED
 MANAGEMENT RIGHTS WHICH RESPONDENT WOULD NOT SURRENDER;  THAT PROPOSAL
 FOUR WAS NOT NEGOTIABLE BECAUSE IT SOUGHT TO AMEND OR MODIFY REQUIRED
 REDUCTION IN FORCE PROCEDURES;  THAT PROPOSALS FIVE AND SIX SOUGHT TO
 RESTATE FEDERAL LAW;  AND THAT PROPOSAL SEVEN WAS INAPPROPRIATE BECAUSE
 IT INVOLVED A MATTER THEN UNDER REVIEW BY THE FEDERAL LABOR RELATIONS
 AUTHORITY.  /13/
 
    A MEETING WAS HELD ON JUNE 13, 1979.  RESPONDENT'S REPRESENTATIVES
 WERE ADVISED THAT THERE WAS NO ROOM FOR DISCUSSION AND THAT THE UNION
 WOULD FILE A PETITION FOR A NEGOTIABILITY DETERMINATION CONCERNING
 COLONEL WALLACE'S JUNE 5, 1979 LETTER.  THE PETITION WAS FILED AND
 THEREAFTER WITHDRAWN BY THE UNION IN FAVOR OF PROSECUTION OF THE UNFAIR
 LABOR PRACTICE CHARGES MADE THE SUBJECT OF A CONSOLIDATED COMPLAINT IN
 THIS CASE.
 
    INFORMATION SUPPLIED TO UNION UPON RECEIPT
 
    IN JUNE OR JULY OF 1979 THE CFTM TEST PROGRAM WAS TEMPORARILY HALTED,
 AND CONVERSIONS TO FULL TIME MILITARY WERE NOT ALLOWED.  ON OR ABOUT
 OCTOBER 1, 1979, THE START OF FISCAL YEAR 1980, THE PROGRAM WAS
 REACTIVATED.  AT THIS TIME, THE NATIONAL GUARD BUREAU INFORMED THE
 RESPONDENT CONCERNING THE NUMBER OF POSITIONS WHICH RESPONDENT WOULD BE
 PERMITTED TO CONVERT.  THE QUOTA SUPPLIED, 143 POSITIONS, INCLUDED
 POSITIONS PREVIOUSLY CONVERTED IN FISCAL YEAR 1979.  UPON RECEIPT OF
 THIS INFORMATION COLONEL BECK APPRISED THE UNION OF THE NUMBER OF
 POSITIONS REMAINING OVER THE TOTAL CONVERTED IN FISCAL YEAR 1979, AND
 IDENTIFIED THIS FIGURE AS THE NUMBER WHICH COULD THEREAFTER BE CONVERTED
 IN FISCAL YEAR 1980.  /14/ HOWEVER, BECAUSE INFORMATION CONCERNING THE
 GEOGRAPHIC LOCATION OF FUTURE CONVERSIONS DID NOT EXIST, SUCH
 INFORMATION WAS NOT SUPPLIED TO THE UNION.
 
    ON MARCH 6, 1980, COLONEL WALLACE WROTE TO MR. TEDESCO TO ADVISE HIM
 THAT 129 INDIVIDUALS HAD BEEN PLACED IN THE NEW YORK ARMY NATIONAL GUARD
 AS A RESULT OF THE CFTM TEST PROGRAM (G.C. EXH. 10);  ALTHOUGH NO OTHER
 SIMILAR COMMUNICATIONS WERE PROVIDED TO THE UNION, THE UNION DID, PRIOR
 TO THE LETTER, RECEIVE COMMUNICATIONS BY PHONE RELATIVE TO POSITIONS
 CONVERTED.
 
                             CASE NO. 1-CA-103
 
    IN MARCH OF 1979 COLONEL BECK BECAME AWARE OF A REQUEST TO FILL A
 GS-5 ADMINISTRATIVE SUPPLY TECHNICIAN VACANCY AT THE BROOKLYN, NEW YORK
 ARMORY (G.C. EXH. 13).  THE POSITION WAS CLASSIFIED AS ENTRY LEVEL BY
 THE RESPONDENT.  THIS CLASSIFICATION HAD THE EFFECT OF PRECLUDING THE
 FILLING OF THE POSITION EXCEPT UNDER THE CFTM TEST PROGRAM.  UNDER THE
 TERMS OF THE PROGRAM, ENTRY LEVEL POSITIONS THROUGHOUT THE STATE, THAT
 BECAME VACANT FOR WHATEVER REASON, WERE SUBJECT TO CONVERSION UNDER THE
 PROGRAM AS THE ONLY MEANS OF FILLING SUCH POSITIONS (JOINT EXHIBIT 11 AT
 PAGE 9, TR. 124, 136-137).  IN SUCH CASES COLONEL BECK WAS REQUIRED TO
 DETERMINE WHETHER OR NOT CONVERSION WOULD BE EFFECTUATED.  /15/
 
    A FEW DAYS PRIOR TO MARCH 20, 1979, COLONEL BECK DECIDED TO CONVERT
 THE GS-5 ADMINISTRATIVE SUPPLY TECHNICIAN POSITION TO FULL-TIME
 MILITARY.  /16/ COUNSEL FOR THE GENERAL COUNSEL ARGUED THAT THIS
 POSITION WAS NOT ENTRY LEVEL, THAT IT SHOULD HAVE BEEN ADVERTISED UNDER
 THE MERIT PROMOTION PLAN, AND THAT THERE WAS A GS-4 DATA TRANSCRIBER IN
 THE NEW YORK CITY AREA WHO COULD HAVE BID ON THE GS-5 POSITION HAD THE
 VACANCY BEEN PROCESSED UNDER THE MERIT PROMOTION PLAN;
 
    THE RESPONDENT ADMINISTRATIVELY DEFINED AN "ENTRY LEVEL" POSITION AS
 "THE LOWEST POSITION WITHIN A PARTICULAR OCCUPATIONAL SERIES OR
 OCCUPATIONAL CODE FOR WHICH THE MINIMAL REQUIREMENTS ARE MANDATED" (TR.
 116-117).  THE DETERMINATION WAS BASED UPON RESPONDENT'S PAST POLICY
 REGARDING THE SUBJECT, AND THE PROVISIONS OF THE MERIT PROMOTION PLAN.
 
    SECTION 1 OF ARTICLE 14 OF THE COLLECTIVE BARGAINING AGREEMENT
 PROVIDES:
 
    ALL PROMOTIONS WILL BE MADE IN ACCORDANCE WITH THE AGENCY MERIT
 PROMOTION PLAN.  NO CHANGES
 
    WILL BE MADE BY THE EMPLOYER TO ANY PROVISIONS OF THE PLAN WHICH
 AFFECT TECHNICIANS IN THE
 
    UNIT WITHOUT FIRST CONSULTING WITH THE UNION.  THE EMPLOYER AND THE
 UNION AGREE THAT THE
 
    PURPOSE OF THE PROMOTION PLAN IS TO ENSURE THAT TECHNICIANS ARE GIVEN
 FULL AND FAIR
 
    CONSIDERATION FOR ADVANCEMENT AND THAT SELECTIONS ARE MADE AMONG THE
 BEST QUALIFIED CANDIDATES
 
    (R. EXH. 3).
 
    THE AGREEMENT ALSO CONTAINS ARBITRATION PROVISIONS WHICH OPERATE TO
 INCLUDE DISAGREEMENTS CONCERNING THE INTERPRETATION OR APPLICATION OF
 THE AGREEMENT.  THESE PROVISIONS ENCOMPASS DISPUTES CONCERNING THE
 INTERPRETATION AND APPLICATION OF THE MERIT PROMOTION PLAN.  /17/ THE
 MERIT PROMOTION PLAN IN EFFECT DURING RELEVANT PERIODS HEREIN PROVIDED
 IN PART:
 
    3.  POLICY -
 
    .  .  .  .
 
    D.  ALL VACANCIES, GS-06/WG-06 AND ABOVE WILL BE ADVERTISED BY THE
 TECHNICIAN PERSONNEL
 
    OFFICE AS SPECIFIED IN APPENDIX "A." ADDITIONALLY, VACANCIES FOR
 GS-05 POSITIONS IN
 
    HEADQUARTERS NEW YORK ARMY NATIONAL GUARD AND IN THE UNITED STATES
 PROPERTY AND FISCAL OFFICE
 
    WILL BE ADVERTISED. . . . VACANCY ANNOUNCEMENTS WILL BE PLACED ON
 EACH ORGANIZATION OR
 
    INSTALLATION BULLETIN BOARD WHERE INFORMATION OF INTEREST TO ALL
 MEMBERS IS CUSTOMARILY
 
    DISPLAYED.  (R. EXH. 7).
 
    ON THE BASIS OF THE MERIT PROMOTION PLAN, PARTICULARLY SECTION 3(D)
 QUOTED ABOVE, THE RESPONDENT CONCLUDED THAT THE PROVISIONS OF THE PLAN
 WERE INAPPLICABLE TO THE GS-5 ADMINISTRATIVE SUPPLY TECHNICIAN POSITION
 VACANCY AT THE BROOKLYN, NEW YORK ARMORY.  THAT IS, IT WAS CLASSIFIED AS
 ENTRY LEVEL AND WAS NOT OTHERWISE DEEMED SUBJECT TO THE MERIT PROMOTION
 PLAN.  IT WAS NOT A GS-5 POSITION IN HEADQUARTERS NEW YORK ARMY NATIONAL
 GUARD, NOR ONE IN THE UNITED STATES PROPERTY AND FISCAL OFFICE.  THE
 PLAN WAS CONSIDERED AS NOT BEING APPLICABLE TO GS-5 POSITIONS OTHER THAN
 THOSE SPECIFICALLY DESCRIBED IN SECTION 3(D) (TR. 156-158).
 
                        DISCUSSION AND CONCLUSIONS
 
                             CASE NO. 1-CA-16
 
    BARGAINING OBLIGATION CONCERNING IMPACT AND IMPLEMENTATION OF THE
 PROGRAM
 
    UNDER THE PROVISIONS OF SECTION 7106(A)(2)(A) OF THE STATUTE,
 MANAGEMENT OFFICIALS HAVE THE RIGHT "TO HIRE, ASSIGN, DIRECT," AND TAKE
 CERTAIN OTHER SPECIFIED PERSONNEL ACTIONS.  SECTION 7106(A)(2)(B)
 PROVIDES THAT MANAGEMENT HAS THE RIGHT "TO DETERMINE THE PERSONNEL BY
 WHICH AGENCY OPERATIONS SHALL BE CONDUCTED." HOWEVER, UNDER THE
 PROVISIONS OF SECTION 7106(B)(2) AND (3) OF THE STATUTE, BARGAINING IS
 MANDATORY ON PROCEDURES DESIGNED FOR EXERCISING SUCH RIGHTS, AND ON
 ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED, THAT IS, ON THE IMPACT
 AND IMPLEMENTATION OF SUCH MANAGEMENT DECISIONS.  THE RULE IS SUBJECT TO
 THE PROVISO THAT NEGOTIATIONS ON PROCEDURES AND IMPACT MAY NOT OPERATE
 TO PREVENT MANAGEMENT FROM EXERCISING MANAGEMENT RIGHTS.  IN THIS CASE
 THE RESPONDENT ACKNOWLEDGES SUCH A BARGAINING OBLIGATION.  /18/ IN ORDER
 TO MEET THIS OBLIGATION MANAGEMENT HAS THE DUTY TO GIVE THE EXCLUSIVE
 BARGAINING REPRESENTATIVE ADEQUATE ADVANCE NOTICE OF THE PROPOSED
 IMPLEMENTATION OF DECISIONS AND PROVIDE THE UNION WITH AN OPPORTUNITY TO
 PARTICIPATE IN IMPACT AND IMPLEMENTATION BARGAINING.  DEPARTMENT OF THE
 TREASURY, U.S. CUSTOMS SERVICE, REGION 1, BOSTON, MASSACHUSETTS, 1 FLRA
 NO. 49 (JUNE 6, 1979);  INTERNAL REVENUE SERVICE, WASHINGTON, D.C., 1
 FLRA NO. 91 (JULY 31, 1979);  NATIONAL SCIENCE FOUNDATION, 1 FLRA NO.
 116 (SEPTEMBER 24, 1979).
 
    HERE THE RECORD CLEARLY ESTABLISHES THAT THE UNION RECEIVED NOTICE OF
 DETAILS OF THE PROGRAM ON THREE DIFFERENT OCCASIONS.  A COPY OF THE
 FEBRUARY 8, 1979 TWIX WAS ADDRESSED TO THE UNION.  THE TWIX REPRESENTED
 COMPLETE DOCUMENTATION OF AVAILABLE DETAILS OF THE CFTM TEST PROGRAM,
 AND WAS CONSIDERED AN ADEQUATE BASIS FOR FUTURE IMPLEMENTATION.  DURING
 THE FEBRUARY 13, 1979, TELEPHONE CONVERSATION THE PROGRAM WAS OUTLINED
 FOR MR. TEDESCO BY COLONEL BECK, AND LASTLY, THE PROGRAM WAS EXPLAINED
 IN DETAIL BY COLONEL BECK DURING THE FEBRUARY 21, 1979 MEETING WITH
 UNION OFFICIALS.
 
    THE FIRST TECHNICIAN POSITION CONVERSION UNDER THE PROGRAM DID NOT
 OCCUR UNTIL MARCH 7, 1979, APPROXIMATELY TWO WEEKS AFTER THE FEBRUARY
 21, 1979 MEETING.  ALTHOUGH THE UNION DID INTERPOSE A REQUEST TO BARGAIN
 ON FEBRUARY 21, 1979, THE REQUEST INCORPORATED A DEMAND FOR WRITTEN
 PROPOSALS FROM THE RESPONDENT.  BECAUSE THE RESPONDENT'S PROPOSALS HAD
 PREVIOUSLY BEEN SUPPLIED TO THE UNION IN THE FORM OF THE FEBRUARY 8,
 1979 TWIX, AND ORALLY ON FEBRUARY 21, 1979, THE UNION WAS APPRISED THAT
 THE UNION HAD THE OBLIGATION TO MAKE PROPOSALS IF CHANGES WERE DESIRED.
 THIS SPECIFIC REQUEST FOR UNION PROPOSALS WAS MET WITH A REPETITION OF A
 DEMAND FOR MANAGEMENT PROPOSALS.  THERE WAS NO SPECIFIC CRITICISM OF THE
 PROPOSALS WHICH MANAGEMENT HAD PROVIDED, NOR WAS THERE ANY SHOWING THAT
 THE PROPOSALS ARTICULATED ORALLY, AND IN THE FEBRUARY 8, 1979 TWIX WERE
 UNCLEAR OR OTHERWISE INADEQUATE.
 
    COLONEL WALLACE'S FEBRUARY 23, 1979 LETTER SERVED TO INFORM THE UNION
 FURTHER OF THE NATURE OF THE INAPPROPRIATENESS OF THE UNION'S RESPONSE
 TO THE RESPONDEN'TS PRESENTATION OF THE PROPOSED CFTM TEST PROGRAM.  THE
 FEBRUARY 23, 1979 LETTER, IN THE LIGHT OF EVENTS WHICH OCCURRED ON
 FEBRUARY 21, 1979, MAY BE CONSTRUED AS A REITERATION OF THE POSITION
 TAKEN BY THE RESPONDENT ON FEBRUARY 21, 1979.  IN EFFECT, IT INFORMED
 THAT THE UNION'S REQUEST FOR BARGAINING PROPOSALS, WAS INAPPROPRIATE.
 ALTHOUGH, IT WOULD HAVE BEEN HELPFUL HAD THE RESPONDENT REITERATED IN
 DETAIL THE POSITION TAKEN BY THE RESPONDENT AT THE FEBRUARY 21, 1979
 MEETING, IT IS CLEAR THAT THE TEXT OF THE LETTER, WHEN READ IN THE LIGHT
 OF EVENTS WHICH OCCURRED ON FEBRUARY 21, 1979, REFLECTS RESPONDENT'S
 REASSERTION OF THE FEBRUARY 21, 1979 POSITION.  NEVERTHELESS, THE UNION
 ON MARCH 3, 1979, CONTINUED TO DEMAND PROPOSALS FROM THE RESPONDENT.
 THEREAFTER, ON MARCH 7, 1979, IMPLEMENTATION OCCURRED.
 
    ALTHOUGH PROVIDED WITH THE OPPORTUNITY TO BARGAIN ON IMPACT AND
 IMPLEMENTATION, THE UNION ELECTED NOT TO BARGAIN, IN FAVOR OF A DEMAND
 FOR WRITTEN MANAGEMENT PROPOSALS CONCERNING THE CFTM PROGRAM, AND IN
 FAVOR OF INSISTENCE THAT IMPLEMENTATION NOT OCCUR IN THE ABSENCE OF
 AGREEMENT.  THIS DEMAND WAS MADE DESPITE THE RESPONDENT'S INSISTENCE
 THAT THE UNION SHOULD MAKE KNOWN SPECIFIC PROPOSALS IN ORDER FOR THE
 UNION TO TAKE ADVANTAGE OF THE BARGAINING OPPORTUNITY EXTENDED.  THIS
 WAS THE UNION'S CHOICE;  HOWEVER, IT DID NOT OPERATE TO NEGATE OR
 ATTENUATE RESPONDENT'S OFFER TO BARGAIN.  IT WAS, INSTEAD, TANTAMOUNT TO
 A REFUSAL TO BARGAIN CONCERNING IMPACT AND IMPLEMENTATION.  INTERNAL
 REVENUE SERVICE, WASHINGTON, D.C., SUPRA;  DEPARTMENT OF THE NAVY,
 NORFOLK NAVAL SHIPYARD, PORTSMOUTH, VIRGINIA, A/SLMR NO. 1065 (JUNE 21,
 1978).  UNDER THE CIRCUMSTANCES IT WOULD HAVE BEEN REASONABLE FOR THE
 RESPONDENT TO HAVE ASSUMED THAT THE UNION HAD DECIDED NOT TO SUBMIT
 PROPOSALS.  THE EXCLUSIVE BARGAINING REPRESENTATIVE MAY NOT IGNORE A
 MANAGEMENT REQUEST FOR SPECIFIC PROPOSALS, AWAIT IMPLEMENTATION OF THE
 PROPOSED ACTION, THEREAFTER SUBMIT BARGAINING PROPOSALS, AND THEN
 ENDEAVOR TO PERFECT ITS REQUEST TO NEGOTIATE ON IMPACT AND
 IMPLEMENTATION.  INTERNAL REVENUE SERVICE AND INTERNAL REVENUE SERVICE
 RICHMOND DISTRICT OFFICE, 2 FLRA NO. 43 (DECEMBER 31, 1979).
 
    THE UNION HAD AN OBLIGATION TO EITHER RESPOND WITH APPROPRIATE
 PROPOSALS, REQUEST ADDITIONAL INFORMATION, OR REQUEST ADDITIONAL TIME IN
 WHICH TO PREPARE TO SUBMIT A UNION POSITION ON IMPACT AND
 IMPLEMENTATION.  HERE, THERE WAS NO REASON TO BELIEVE THAT THE UNION
 INTENDED TO PURSUE ANY OF THESE APPROACHES.  INSTEAD, IT WAS CLEAR THAT
 THE UNION DID NOT INTEND TO SUBMIT A POSITION ON THE ISSUES.  THUS THE
 FACTS PRESENTED INDICATE THAT THE RESPONDENT MET ITS STATUTORY
 OBLIGATION TO GIVE TIMELY NOTICE CONCERNING THE CFTM TEST PROGRAM, AND
 THE OPPORTUNITY TO BARGAIN, BUT THAT THE UNION RESPONSE EFFECTIVELY
 PRECLUDED THE CONSUMMATION OF IMPACT AND IMPLEMENTATION BARGAINING.
 SUBSEQUENT IMPLEMENTATION AFTER A TWO WEEK INTERVAL MAY NOT BE
 CONSIDERED AN UNFAIR LABOR PRACTICE, AS THE FACTS INDICATE THAT THE
 RESPONDENT MET ITS STATUTORY OBLIGATION TO BARGAIN.  /19/
 
    THE UNION'S REQUEST FOR INFORMATION
 
    WITH RESPECT TO THE ALLEGED FAILURE OF RESPONDENT TO FURNISH
 NECESSARY AND RELEVANT INFORMATION, IT IS NOTED THAT AN UNFAIR LABOR
 PRACTICE MAY NOT BE BASED UPON A DENIAL OF ACCESS TO NON-EXISTENT DATA.
 INTERNAL REVENUE SERVICE AND BROOKLYN DISTRICT OFFICE, IRS, 1 FLRA NO.
 89 (JULY 31, 1979);  VETERANS ADMINISTRATION HOSPITAL, LEXINGTON,
 KENTUCKY, AND VETERANS ADMINISTRATION CENTRAL OFFICE, WASHINGTON, D.C.,
 3 FLRA NO. 126 (JULY 31, 1980).  THE COMPLAINT ALLEGES THAT SINCE ON OR
 ABOUT FEBRUARY 23, 1979, THE UNION HAS REQUESTED THE RESPONDENT TO
 FURNISH INFORMATION "RELATING TO THE NUMBER OF AND LOCATION OF CFTM
 POSITIONS AND RELATED MATTERS." THE RECORD IS CLEAR THAT AT THE FEBRUARY
 21, 1979 MEETING THE UNION REQUESTED THE RESPONDENT TO SUPPLY, AS SOON
 AS POSSIBLE, INFORMATION RELATING TO THE NUMBER OF POSITIONS AFFECTED BY
 THE CFTM TEST PROGRAM, AND THE AREAS WHEREIN SUCH POSITIONS WERE
 LOCATED.  INFORMATION OF THE TYPE SOUGHT WAS NOT THEN IN EXISTENCE, AND
 IT WAS ESTABLISHED THAT THE PRODUCTION OF SUCH INFORMATION WAS DEPENDENT
 UPON FUTURE FACTORS NOT UNDER THE CONTROL OF THE RESPONDENT.  SINCE THE
 INFORMATION REQUESTED BY THE UNION WAS NOT THEN IN EXISTENCE, A
 VIOLATION OF SECTION 7116 MAY NOT BE BASED ON FAILURE TO SUPPLY SUCH
 INFORMATION.  /20/
 
    THE ALLEGED BYPASS OF THE UNION
 
    THE FEDERAL LABOR RELATIONS COUNCIL IN CONSIDERING A CASE ARISING
 UNDER EXECUTIVE ORDER 11491, AS AMENDED, DEPARTMENT OF THE NAVY, NAVAL
 AIR STATION, FALLON, NEVADA, A/SLMR NO. 432, FLRC NO. 74A-80, 3 FLRC 697
 (1975) HELD THAT THE FOLLOWING CRITERIA SHOULD BE USED IN DETERMINING
 WHETHER A COMMUNICATION AMOUNTS TO AN ATTEMPT TO BYPASS THE EXCLUSIVE
 REPRESENTATIVE:
 
    IN DETERMINING WHETHER A COMMUNICATION IS VIOLATIVE OF THE ORDER, IT
 MUST BE JUDGED
 
    INDEPENDENTLY AND A DETERMINATION MADE AS TO WHETHER THAT
 COMMUNICATION CONSTITUTES, FOR
 
    EXAMPLE, AN ATTEMPT BY AGENCY MANAGEMENT TO DEAL OR NEGOTIATE
 DIRECTLY WITH UNIT EMPLOYEES OR
 
    TO THREATEN OR PROMISE BENEFITS TO EMPLOYEES.  IN REACHING THIS
 DETERMINATION, BOTH THE
 
    CONTENT OF THE COMMUNICATION AND THE CIRCUMSTANCES SURROUNDING IT
 MUST BE CONSIDERED.  MORE
 
    SPECIFICALLY, ALL COMMUNICATIONS BETWEEN AGENCY MANAGEMENT AND UNIT
 EMPLOYEES OVER MATTERS
 
    RELATING TO THE COLLECTIVE BARGAINING RELATIONSHIP ARE NOT VIOLATIVE.
  RATHER COMMUNICATIONS
 
    WHICH, FOR EXAMPLE, AMOUNT TO AN ATTEMPT TO BYPASS THE EXCLUSIVE
 REPRESENTATIVE AND BARGAIN
 
    DIRECTLY WITH EMPLOYEES, OR WHICH URGE EMPLOYEES TO PUT PRESSURE ON
 THE REPRESENTATIVE TO TAKE
 
    A CERTAIN COURSE OF ACTION, OR WHICH THREATEN OR PROMISE BENEFITS TO
 EMPLOYEES ARE VIOLATIVE
 
    OF THE ORDER.
 
    THE MARCH 14, 1979 TECHNICIAN TOPIC MEMORANDUM DISTRIBUTED TO
 BARGAINING UNIT EMPLOYEES WAS BASED UPON INFORMATION DISCLOSED TO THE
 UNION IN THE FEBRUARY 8, 1979, TWIX, AND LONG-STANDING PERSONNEL
 POLICIES AND PRACTICES.  IT MAY NOT BE USED AS A BASIS FOR AN UNFAIR
 LABOR PRACTICE BECAUSE IT INVOLVED NO ATTEMPT BY THE RESPONDENT TO
 BYPASS THE EXCLUSIVE BARGAINING REPRESENTATIVE AND DEAL DIRECTLY WITH
 EMPLOYEES;  DID NOT OTHERWISE THREATEN OR PROMISE BENEFIT TO EMPLOYEES;
 AND DID NOT UNDERMINE THE STATUS OF THE EXCLUSIVE REPRESENTATIVE.  SEE
 ALSO DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, ST. LOUIS
 DISTRICT OFFICE, ST;  LOUIS, MISSOURI, A/SLMR NO. 961 (JANUARY 6, 1978).
 
    AS NOTED THE UNION WAS, AS OF FEBRUARY 21, 1979, PROVIDED WITH THE
 OPPORTUNITY TO BARGAIN CONCERNING THE ISSUES RAISED IN THE CFTM TEST
 PROGRAM, BUT REFUSED TO RESPOND WITH BARGAINING PROPOSALS.  THE
 MEMORANDUM IN QUESTION WAS MERELY A SEGMENT OF RESPONDENT'S
 IMPLEMENTATION OF THE CFTM TEST PROGRAM.  /21/
 
                             CASE NO. 1-CA-103
 
    IT IS WELL SETTLED THAT ALLEGED VIOLATIONS OF A NEGOTIATED AGREEMENT
 WHICH CONCERN DIFFERING AND ARGUABLE INTERPRETATIONS OF SUCH AGREEMENT,
 AS DISTINGUISHED FROM ALLEGED ACTIONS WHICH CONSTITUTE CLEAR, UNILATERAL
 BREACHES OF THE AGREEMENT, ARE NOT DEEMED TO BE VIOLATIVE OF THE
 STATUTE.  IN SUCH CASES THE AGGRIEVED PARTY'S REMEDY LIES WITHIN THE
 GRIEVANCE AND ARBITRATION PROCEDURES IN THE NEGOTIATED AGREEMENT RATHER
 THAN THROUGH UNFAIR LABOR PRACTICE PROCEDURES.  OKLAHOMA CITY AIR
 LOGISTICS CENTER, TINKER AIR FORCE BASE, OKLAHOMA, 3 FLRA NO. 82 (JUNE
 27, 1980);  SOCIAL SECURITY ADMINISTRATION DISTRICT OFFICES IN DENVER,
 PUEBLO AND GREELY, COLORADO, ET AL., 3 FLRA NO. 10 (APRIL 14, 1980);
 UNITED STATES DEPARTMENT OF LABOR, 1 FLRA NO. 107 (SEPTEMBER 13, 1979);
 DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
 ADMINISTRATION, 1 FLRA NO. 37 (MAY 9, 1979).
 
    IN CASE NO. 1-CA-103, IT WAS ALLEGED THAT THE RESPONDENT UNILATERALLY
 DETERMINED, WITHOUT NOTIFYING AND BARGAINING WITH THE UNION, THAT A GS-5
 TECHNICIAN VACANCY IN RESPONDENT'S BROOKLYN, NEW YORK ARMORY, "WAS AN
 ENTRY-LEVEL POSITION AND THUS SUBJECT TO CONVERSION UNDER THE CFTM TEST
 PROGRAM." THE GRAVAMEN OF THIS CASE INVOLVES A DISPUTE AS TO WHETHER THE
 POSITION WAS ENTRY LEVEL, AND THEREFORE NOT SUBJECT TO MERIT PROMOTION
 PROCEDURES SET OUT IN THE MERIT PROMOTION PLAN NEGOTIATED WITH THE
 UNION.  SPECIFICALLY, THE RESPONDENT'S POSITION IS BASED ON ITS
 INTERPRETATION OF PARAGRAPH 3(D) OF THE MERIT PROMOTION PLAN.  IT IS
 ARGUED THAT THE OMISSION OF THE REQUIREMENT THAT GS-5 VACANCIES IN THE
 NEW YORK CITY METROPOLITAN AREA BE ADVERTISED, ESTABLISHES THEM AS ENTRY
 LEVEL POSITIONS NOT SUBJECT TO THE COMPETITIVE PLACEMENT PROCEDURES
 UNDER THE MERIT PROMOTION PLAN.  COUNSEL FOR THE GENERAL COUNSEL
 CONTENDS THAT THE PROVISIONS OF THE PLAN SHOULD HAVE BEEN APPLIED
 BECAUSE THE GS-5 WAS NOT AN ENTRY LEVEL POSITION, AND FURTHER THAT THERE
 WAS A GS-4 DATA TRANSCRIBER IN THE NEW YORK CITY AREA WHO COULD HAVE BID
 ON THE GS-5 POSITION HAD THE RESPONDENT ADVERTISED IT UNDER THE
 PROVISIONS OF THE MERIT PROMOTION PLAN.  THE ARGUABLE INTERPRETATION
 RELIED UPON BY THE RESPONDENT NEGATES BAD FAITH ON THE PART OF THE
 RESPONDENT, AND RAISES ISSUES OF CONTRACT INTERPRETATION.  SINCE THE
 ISSUES INVOLVE ESSENTIALLY DIFFERING INTERPRETATIONS OF THE PARTIES'
 RIGHTS AND OBLIGATIONS UNDER THE MERIT PROMOTION PLAN INCORPORATED INTO
 THE NEGOTIATED AGREEMENT, AND SINCE THE RESPONDENT'S CLASSIFICATION OF
 THE POSITION AS ENTRY LEVEL DID NOT CONSTITUTE A CLEAR AND UNILATERAL
 BREACH OF THAT AGREEMENT, THE AGGRIEVED PARTY'S REMEDY IN THIS CASE LIES
 WITHIN THE ARBITRATION PROCEDURE OF THE NEGOTIATED AGREEMENT, /22/
 RATHER THAN THE UNFAIR LABOR PRACTICE PROCEDURE.
 
    THE ENTRY LEVEL CLASSIFICATION WAS ACTUALLY A FACET OF THE
 RESPONDENT'S IMPLEMENTATION OF THE CFTM TEST PROGRAM.  THE ACTION WAS
 TAKEN IN ACCORDANCE WITH THE PROVISIONS OF THE PROGRAM OUTLINED IN THE
 FEBRUARY 8, 1979 TWIX, AND WAS IN ACCORDANCE WITH THE TERMS OF THE PLAN
 ORALLY SPELLED OUT DURING THE FEBRUARY 21, 1979 MEETING.  SINCE THE
 RESPONDENT MET ITS OBLIGATION TO BARGAIN WITH RESPECT TO THE CFTM TEST
 PROGRAM, IMPLEMENTATION IN ACCORDANCE WITH THE PROGRAM PRESENTED TO THE
 UNION, MAY NOT WITHOUT MORE, BE CONSIDERED A SUFFICIENT BASIS FOR AN
 UNFAIR LABOR PRACTICE.
 
                                CONCLUSION
 
    IT IS CONCLUDED THAT A PREPONDERANCE OF THE EVIDENCE DOES NOT SUPPORT
 ALLEGATIONS THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (5) 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-16 AND CASE NO. 1-CA-103, BE, AND HEREBY IS, DISMISSED.
 
                         LOUIS SCALZO
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  NOVEMBER 24, 1980
    WASHINGTON, D.C.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ PRIOR TO THE HEARING THE REGIONAL DIRECTOR CONSOLIDATED CASE NOS.
 1-CA-16 AND 1-CA-103, WITH CASE NOS. 1-CA-195 AND 1-CA-196.  ON THE
 BASIS OF A STIPULATION OF THE PARTIES, THE INTERESTS OF THE PARTIES, AND
 CONSIDERATIONS RELATING TO EXPEDITIOUS DISPOSITION OF THE PROCEEDING,
 CASES NUMBERED 1-CA-16 AND 1-CA-103 WERE SEVERED AND TRIED SEPARATELY
 (TR. 3 AND 87).  NEVERTHELESS, COUNSEL FOR THE GENERAL COUNSEL FILED A
 BRIEF CONSOLIDATING ARGUMENT RELATING TO THE FOUR CASES.  PORTIONS OF
 THE CONSOLIDATED BRIEF RELATING TO CASE NOS. 1-CA-195 AND 1-CA196 HAVE
 BEEN GIVEN NO CONSIDERATION IN CONNECTION WITH THE DISPOSITION OF CASE
 NOS. 1-CA-16 AND 1-CA-103.
 
    /2/ NATIONAL GUARD TECHNICIANS ARE EMPLOYED PURSUANT TO THE NATIONAL
 GUARD TECHNICIANS ACT OF 1968 AS AMENDED, 32 U.S.D;  SEC. 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
 PURSUANT TO 32 U.S.C. SEC. 709(B) AND (E).
 
    THE CFTM TEST PROGRAM, AUTHORIZED UNDER THE GENERAL PROVISIONS OF 32
 U.S.C. SEC. 503, 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.
 
    /3/ HEREINAFTER REFERENCES TO THE TRANSCRIPT WILL BE DESIGNATED "TR.
 ," AND REFERENCES TO EXHIBITS WILL BE DESIGNATED "G.C. EXH.  ," "R.
 EXH., ," OR "JT. EXH.  ."
 
    /4/ THE UNION IS COMPRISED OF 15 CHAPTERS LOCATED IN THE STATE OF NEW
 YORK.  THE STATE CHAIRMAN HEADS THE UNION'S STATE ORGANIZATION.
 
    /5/ THE PARTIES STIPULATED THAT THE PROGRAM HAD NOT BEEN IMPLEMENTED
 AS OF THE FEBRUARY 21, 1979 MEETING.  IT WAS ANTICIPATED THAT
 IMPLEMENTATION OF THE PROGRAM WOULD OCCUR AT SOME INDEFINITE DATE IN THE
 FUTURE.
 
    /6/ THE RECORD REFLECTED THAT A TOTAL HIRING FREEZE HAD BEEN IN
 EFFECT SINCE JANUARY 1, 1979.
 
    /7/ THE RECORD DISCLOSED THAT THE UNION WAS SEEKING INFORMATION
 RELATING TO THE NUMBER OF POSITIONS WHICH WOULD BE AFFECTED IN NEW YORK
 STATE.
 
    /8/ THE UNION MADE NO SPECIFIC PROPOSALS AT THE FEBRUARY 21, 1979
 MEETING.
 
    /9/ THE RECORD DOES NOT REFLECT EXACTLY WHEN THIS POSITION WAS
 CONVERTED INTO A MILITARY POSITION.  IT WAS SPECIFICALLY SHOWN THAT THE
 RESPONDENT COULD NOT HAVE KNOWN ABOUT IT ON FEBRUARY 21, 1979, AS
 ATTEMPTS WERE THEN BEING MADE TO FILL THE POSITION UNDER THE MERIT
 PROMOTION PLAN.  THESE ATTEMPTS PROVED TO BE UNSUCCESSFUL.  HOWEVER,
 SINCE AN EXCLUSIVE REPRESENTATIVE'S OBLIGATIONS AND CORRELATIVE RIGHTS,
 UNDER SECTION 7114(A)(1) OF THE STATUTE, EXTEND ONLY TO EMPLOYEES IN THE
 UNIT, THE SCOPE OF THE OBLIGATION TO BARGAIN IN GOOD FAITH IS RESTRICTED
 TO MATTERS AFFECTING THE CONDITIONS OF EMPLOYMENT OF EMPLOYEES IN AN
 APPROPRIATE UNIT.  NATIONAL COUNCIL OF FIELD LABOR LOCALS, AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, 3 FLRA NO. 44 (AMY 29,
 1980);  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL COUNCIL OF
 EEOC LOCALS, NO. 216, AFL-CIO, 3 FLRA NO. 80 (JUNE 27, 1980).  HERE THE
 RESPONDENT HAD NO OBLIGATION TO BARGAIN OVER MATTERS RELATING TO
 NON-BARGAINING UNIT POSITIONS REFERRED TO IN THE PROPOSAL.  THIS BEING
 THE CASE THE PROPOSAL IN QUESTION WAS NOT IMPLEMENTED BY THE CONVERSION
 OF THIS SUPERVISORY POSITION.
 
    /10/ ON OR ABOUT MARCH 7, 1979, THE UNION EXECUTED THE ORIGINAL
 UNFAIR LABOR PRACTICE CHARGE IN CASE NO. 1-CA-16, ALLEGING THAT THE
 RESPONDENT REFUSED TO BARGAIN CONCERNING THE PROGRAM.  THE CHARGE WAS
 SERVED ON OR ABOUT MARCH 15, 1979 (G.C. EXHS. 3 AND 4).
 
    /11/ THE COLLECTIVE BARGAINING AGREEMENT, APPROVED ON OCTOBER 3,
 1975, EXPIRED AFTER A TERM OF TWO YEARS (R. EXH. 3).  HOWEVER, THE
 PROVISIONS OF THE AGREEMENT CONTINUED TO GOVERN THE RELATIONSHIP BETWEEN
 THE PARTIES PENDING THE COMPLETION OF CONTRACT NEGOTIATIONS.  DURING THE
 PERIODS INVOLVED HEREIN EFFORTS TO COMPLETE THESE CONTRACT NEGOTIATIONS
 WERE CONTINUING.
 
    /12/ MR. TEDESCO TESTIFIED THAT HE HAD NO TELEPHONE CONVERSATIONS
 WITH COLONEL BECK AS OUTLINED;  HOWEVER, BASED UPON THE RECORD, THE
 DEMEANOR OF THESE WITNESSES, AND APPARENT VAGUENESS AND UNCERTAINTY IN
 KEY ELEMENTS OF MR. TEDESCO'S TESTIMONY, COLONEL BECK'S TESTIMONY IS
 CREDITED ON THIS FACTUAL ISSUE.
 
    /13/ RESPONDENT ALSO TOOK THE POSITION THAT PROPOSALS NUMBERED TWO,
 AND FOUR THROUGH EIGHT, INVOLVED SUBJECT MATTER RAISED DURING CONTRACT
 NEGOTIATIONS, AND THAT NOTHING PRECLUDED CONSIDERATION OF THESE
 PROPOSALS IN CONNECTION WITH SUCH NEGOTIATIONS.
 
    /14/ THE RECORD REVEALED THAT THE RESPONDENT WAS NOT CONFINED TO A
 QUOTA DURING FISCAL YEAR 1979.
 
    /15/ AS PREVIOUSLY INDICATED, NON-ENTRY LEVEL POSITIONS WERE SUBJECT
 TO THE MERIT PROMOTION PLAN.  IN THE EVENT OF FAILURE TO LOCATE A
 SUITABLE CANDIDATE THROUGH THE MERIT PROMOTION PLAN, SUCH POSITIONS WERE
 THEN ALSO SUBJECT TO CONVERSION.
 
    /16/ COLONEL BECK TESTIFIED THAT THE POSITION WAS CONVERTED SOMETIME
 DURING THE PERIOD MARCH 16 THROUGH 20, 1979.
 
    /17/ CERTAIN EXCEPTIONS TO THE APPLICABILITY OF THE ARBITRATION
 ARTICLE ARE NOT RELEVANT HERE.
 
    /18/ THIS CASE DOES NOT INVOLVE ISSUES RELATING TO PROCEDURES TO FILL
 POSITIONS CONVERTED UNDER THE CFTM TEST PROGRAM, NOR THE CONDITIONS
 UNDER WHICH MILITARY PERSONNEL WOULD SERVE.  THESE SUBJECT AREAS WOULD
 BE BEYOND THE SCOPE OF BARGAINING UNDER THE STATUTE.  ASSOCIATION OF
 CIVILIAN TECHNICIANS, PENNSYLVANIA STATE COUNCIL, CASE NO. 3 FLRA NO. 8
 (APRIL 14, 1980).
 
    /19/ RECEIPT OF UNION PROPOSALS IN MAY OF 1979, AFTER IMPLEMENTATION
 OF THE PROGRAM, WAS FOLLOWED UP BY THE RESPONDENT IN AN EFFORT TO
 CLARIFY PROPOSALS RECEIVED SO THAT RESPONDENT COULD MAKE AN INFORMED
 RESPONSE.  HOWEVER, THIS EFFORT WAS FRUSTRATED BY MR.  TEDESCO'S REFUSAL
 TO DISCUSS THE PROPOSALS FOR THE PURPOSE OF CLARIFYING THEM.  THUS, EVEN
 AT THIS LATE DATE MEANINGFUL BARGAINING CONCERNING THE SUBJECT WAS
 PREVENTED BY THE UNION.
 
    /20/ THE RESPONDENT PROMPTLY EXPLAINED THAT THE SPECIFIC INFORMATION
 SOUGHT DID NOT THEN EXIST.  HOWEVER, WHEN A PORTION OF THIS INFORMATION
 WAS IN FACT DEVELOPED AT THE END OF FISCAL YEAR 1979, SUCH DATA WAS
 IMMEDIATELY SUPPLIED TO THE UNION.
 
    /21/ IT SHOULD BE NOTED THAT THE MEMORANDUM IN QUESTION DOES NOT
 INVOLVE A QUESTIONNAIRE REQUESTING BARGAINING UNIT EMPLOYEES TO RESPOND
 DIRECTLY TO THE RESPONDENT, AND THEREFORE DOES NOT FALL WITHIN THE
 PURVIEW OF THE RULE ENUNCIATED IN DEPARTMENT OF HEALTH, EDUCATION AND
 WELFARE, SOCIAL SECURITY ADMINISTRATION, BUREAU OF RETIREMENT AND
 SURVIVORS INSURANCE, NORTHEASTERN PROGRAM SERVICE CENTER, 1 FLRA NO. 59
 (JUNE 14, 1979).
 
    /22/ R. EXH. 3, ARTICLE 17.