24:0695(72)CA - Army Adjutant General, Publication Center, St. Louis, MO and AFGE Local 2761 -- 1986 FLRAdec CA
[ v24 p695 ]
24:0695(72)CA
The decision of the Authority follows:
24 FLRA No. 72
UNITED STATES ARMY ADJUTANT GENERAL
PUBLICATION CENTER, ST. LOUIS, MISSOURI
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2761
Charging Party
Case No. 7-CA-40547
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the Respondent to the attached Decision of the Administrative
Law Judge. The Judge concluded that the Respondent violated section
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute (the Statute) when it unilaterally cancelled the annual picnic.
The issue before the Authority is whether, in the circumstances of this
case, the annual picnic constituted a condition of employment giving
rise to an obligation to bargain.
II. Background
The facts of this case as set out by the Judge are not in dispute and
therefore will only be summarized below. The Union is the exclusive
representative of employees of the United States Army Adjutant General
Publication Center, St. Louis, Missouri (the Center). For at least 18
years picnics have been held for Center employees. Prior to June 1981,
the majority of these picnics were held on weekends off the Center's
premises. In June 1981 the picnic was held on the Center's premises
during working hours to celebrate the Center's 30th anniversary. The
picnics of 1982 and 1983 were also held on the Center's premises during
working hours. Each of these three picnics followed similar
arrangements. The work force reported for duty at the regular time.
Those attending the picnic were released from their duties between 10:00
a.m. and 12:00 noon. Dependents, retirees and friends were permitted to
attend as guests and to participate in an open house tour of the Center.
Various activities occurred during the day, including the serving of
food and refreshments, games, tours and movies. Part of the time was
also set aside to recognize deserving employees with letters of
appreciation, safety pins, and monetary awards.
Planning began for the 1984 picnic, which was scheduled for June
29th. Several disagreements arose between the Union and the Center's
representatives over the wording of the Newsletter to be distributed to
employees announcing the picnic. Specifically, the Union objected to
the picnic's proposed format which, among other things, required those
not participating to "fulfill their daily 8 hour work obligation or take
annual leave." It is undisputed that employees not attending the
previous picnics were supposed to be at their work stations. The Union
chose to survey employees to see if they wanted to participate given
these circumstances.
During management discussions of the Union's objections to the
changes in format of the picnic, the Center decided to cancel the picnic
entirely. This was accomplished without further discussion with the
Union, in the daily bulletin notice to employees, dated June 8, 1984.
The announcement stated that the picnic was cancelled as a result of
discussions with the Civilian Personnel Office concerning administrative
leave. A copy of the bulletin was sent to the Union, and the Union made
no request to bargain after receipt of the bulletin.
III. Judge's Decision
The Judge concluded that the Respondent violated section 7116(1)(1)
and (5) when it unilaterally cancelled the annual picnic. The Judge
found that the annual picnic, having been held for three consecutive
years during work hours against a backdrop in which picnics had been
held for nearly 20 years, constituted an established past practice. The
Judge also found that the annual picnic was, in the circumstances of
this case, a condition of employment because it was arranged by
management, used by management to award and recognize worthy employees,
and authorized by management to be held on duty time. Finally, the
Judge found that, based on its impact on employee morale, the
cancellation of the picnic had more than a de minimis impact on the
bargaining unit employees. In response to the General Counsel's request
for a status quo ante remedy, the Judge concluded, in granting the
request, that the cancellation "appears to interfere with no statutory
management right." The Judge also concluded that it was unnecessary to
resolve other issues raised by the parties concerning whether the
holding of the picnic and certain of its functions involved violations
of Agency regulations.
IV. Respondent's Exceptions
The Respondent excepted to the Judge's conclusion that the annual
picnic held on duty time was a condition of employment. In this
connection, the Respondent repeated arguments made to the Judge in which
it contended that holding a picnic involved neither an established past
practice nor a condition of employment, because, among other reasons,
most of the previous picnics were held on weekends outside of the
Respondent's grounds and the principal activities engaged in at the
picnics involved the consumption of food and alcoholic beverages and
participation in games. In the respondent's view, those activities had
no direct relationship to the work situation and hence did not involved
conditions of employment.
Finally, the Respondent excepted to the Judge's recommended Order,
contending that reinstituting the practice would interfere with its
right to assign work under section 7106(a)(2)(B) of the Statute.
Additionally, it argued that the Judge's recommendation would require it
to violate Federal Personnel Manual requirements with respect to
granting administrative leave.
Neither the General Counsel nor the Union filed an opposition to the
Respondent's exceptions.
V. Analysis
We conclude, in agreement with the Respondent and contrary to the
Judge, that the annual picnic does not meet the definition of conditions
of employment in section 7103(a)(14) of the Statute and hence the
Respondent's cancellation of the picnic does not give rise to an
obligation to bargain on its part. /1/
There are two basic considerations involved in deciding whether a
matter involves a condition of employment: (1) whether the matter
proposed to be bargained pertains to bargaining unit employees; and (2)
the nature and extent of the effect of the matter proposed to be
bargained on working conditions of those employees. Antilles
Consolidated Education Association and Antilles Consolidated School
System, 22 FLRA No. 23 (1986). As to the second consideration there
must be a direct connection between the proposal and the work situation
or employment relationship of bargaining unit employees.
Applying the Antilles analysis to the matters at issue in this case,
it is clear that the first consideration is satisfied. The annual
picnic involved all employees of the Respondent including bargaining
unit employees. Therefore, its cancellation pertains to bargaining unit
employees.
However, with respect to the second consideration, we find that the
annual picnic principally involved recreational activities and hence had
no direct connection to the work situation or employemnt relationship.
We cannot agree with the Judge that because the picnic was held during
duty hours and awards were given out, a direct connection with the
employment relationship was established. Accordingly, the picnic was
not a condition of employment, and the cancellation of an annual
celebration involving essentially recreational activities does not
constitute a change in conditions of employment. /2/ Therefore, it is
unnecessary to consider the other issues addressed by the Judge in her
Decision.
While such matters do not give rise to a statutory obligation to
bargain, it is our view that they are matters which the parties should
be able to resolve between themselves without resorting to the unfair
labor practice process. We urge representatives of agency management
and unions to resolve this type of dispute bilaterally without the need
to invoke statutory third-party processes.
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
made by the Judge at the hearing, finds that no prejudicial error was
committed, and thus affirms those ruling. We have considered the
Judge's Decision, the Respondent's exceptions and the entire record and
conclude that the Judge's Decision must be reversed. We therefore
conclude that the respondent did not violate section 7116(a)(1) and (5)
of the Statute based on its unilateral cancellation of the annual
picnic. Accordingly, the complaint shall be dismissed in its entirety.
ORDER
The complaint in Case No. 7-CA-40547 is dismissed.
Issued, Washington, D.C. December 22, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Member Frazier, concurring in part and dissenting in part.
I respectfully dissent from my colleagues on whether the matter in
this case involves a condition of employment, I would find that it does.
I agree with my colleagues that the facts of this case satisfy the
first factor set forth in the Antilles Consolidated Education
Association case, 22 FLRA No. 23; that is, that the matter pertains to
bargaining unit employees. However, contrary to my colleagues, I would
find that the facts also satisfy the second Antilles factor, which
concerns the nature and extent of the effect of the matter on working
conditions of the employees involved. The agency picnic was not merely
a "recreational" activity for employees; it appears to have served a
function that directly enhanced the employment relationship between the
agency and its employees. Picnics for agency employees had been held
for almost 20 years. These picnics took place in a variety of settings,
occasionally on agnecy premises or during working hours. For the 3
years immediately preceding the agency's termination of its practice,
the agency picnic was held on agency property during working hours. The
picnics brought together agency employees and retirees, their families
and guests. The agency not only hosted the event and encouraged
employees to attend, but also took advantage of the occasion as an
opportunity to distribute letters of appreciation, safety pins, and
monetary awards. In short, the agency's presence permeated the event,
and the employment relationship between the agency and its employees was
undeniably and directly enhanced as a result. Furthermore, to find that
an agency picnic held on agency premises during working hours falls
within the compass of employees' conditions of employment is consistent
with precedent. Other types of interruptions in the workday, such as
breaks and rest periods during which employees are temporarily relieved
from their particular duties but continue to be paid, have been
considered conditions of employment. E.g., American Federation of
Government Employees, AFL-CIO, Local 3511 and Veterans Administration
Hospital, San Antonio, Texas, 12 FLRA 77, 84-88 (1983) (Union Proposal
30).
Having initially chosen to establish an annual picnic, and having
utilized the picnic to enhance relations between it and its employees,
the agency did not thereafter possess unfettered discretion to
unilaterally terminate the practice. At the very least, the agency was
obligated to inform the Union of its intention to change its past
practice pertaining to such conditions of employment and give the Union
a reasonable opportunity to request bargaining on proposals related
thereto and otherwise consistent with law and regulation.
In these circumstances, I would find that the agency committed an
unfair labor practice when it unilaterally cancelled the agency's annual
picnic, thereby terminating a past practice pertaining to conditions of
employment.
/s/ Henry B. Frazier III, Member
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 7-Ca-4054-7
UNITED STATES ARMY ADJUTANT GENERAL
PUBLICATION CENTER, ST. LOUIS, MISSOURI,
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2761,
Charging Party
Major Edelbert F. Phillips,
Howard S. Bishop, Jr.,
For the Respondent
Daniel Minahan,
For the General Counsel
Federal Labor Relations Authority
Dominic Licavoli
For the Charging Party
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1191, 5 U.S.C. 7101 et seq.
(1982), commonly known as the Federal Service Labor-Management Relations
Statute, and hereinafter referred to as the Statute, and the rules and
regulations issued thereunder and published at 5 CFR 2411 et seq.
A charge of an unfair labor practice was filed by the Union on June
11, 1984 and amended on July 10. The General Counsel of the Federal
Labor Relations Authority (hereinafter, the "Authority") investigated
and, on July 31, served the complaint initiating this proceeding.
The complaint alleges that Respondent violated Sections 7116(a)(1)
and (5) of the Statute /3/ by unilaterally cancelling the annual picnic,
held during working hours.
Respondent admits cancelling the picnic without providing prior
notice to the Union, or an opportunity to bargain. Respondent denies
that its action changed a condition of employment of unit employees, or
terminated a past practice, or constituted a violation of the Statute.
A hearing on the matter was held on September 17, 1984 in St. Louis,
Missouri. The parties appeared, examined witnesses, and adduced
documentary evidence. Briefs were filed on November 13 on behalf of the
General Counsel and Respondent, pursuant to an order of October 16
extending the briefing time to that date, upon a request of the General
Counsel which was subject to no objection.
Findings of Fact /4/
1. The Union is and has been a labor organization within the meaning
of Section 7103(a)(4) of the Statute, at all times material herein, and
that for this same period the Respondent is and has been an agency
within the meaning of Section 7103(a)(3).
2. At all times material herein, the Union has been recognized by
Respondent as the exclusive representative of all employees assigned to
the U.S. Army Adjutant General Publications Center, St. Louis (AGPC or
the Center) with certain exceptions not here applicable. There are
approximately 150 bargaining unit employees.
3. At all times material herein, the parties have been bound by a
collective bargaining agreement.
4. At all times material herein, Lt. Colonel Joseph York has
occupied the position of Commander of AGPC, and Major James K. Pualoa
the position of Executive Officer of AGPC; and they are and have been
management officials or supervisors within the meaning of Sections
7103(a)(10) and/or (11) of the Statute, and agents of Respondent.
5. The Center's facility consists of a single building on a
seven-acre site surrounded by open grass.
6. Picnics have been held for Center employees for at least 18
years. Some were held in parks and, now and then, on the premises of
the facility. Some were held during working hours; but most were held
on weekends. In June 1981, to celebrate the 30th anniversary of the
founding of the Center, the Commander authorized a picnic to be held
during working hours, at the Center. Another such picnic was held in
1982 and 1983.
7. The 1981, 1982 and 1983 picnics followed the same arrangements.
The work force reported for duty at its regular time, 0600 hours for the
biggest percentage. An open house tour for dependents began at 0900
hours. Employees who wished to return home to pick up their dependents
were released from duty on or about 1000 hours, with exceptions for
those living a great distance from the Center. Opening ceremonies began
at approximately 1115 hours. The warehouse area closed its doors at
approximately 1200 hours. The front gate closed at 1700 hours. Games
and movies were arranged for the participants at the picnic. Guest
included retirees as well as dependents and friends of the employees. A
tow motor was hooked to three carts and used to transport people around
the site. Ceremonies were held to recognize deserving employees.
Letters of appreciation, safety pins, and monetary awards for sustained
superior performance and suggestions were given out to those employees
earning them. Food and beer were served, for which the participants
paid.
8. The Union was always consulted about the picnics, by the Center's
Executive Officer normally, to find out if it could get some employees
to help with the cooking and ticket taking, and to obtain advice as to
what games employees would like. The Union paid for its members'
tickets.
9. In 1984, plans got underway for the annual June picnic. On May
25, Lt. Colonel York sent the union President a copy of a Picnic
Newsletter to be distributed to employees on May 29. The purpose was to
obtain necessary information for the "1984 annual picnic" to be held on
June 29. G.C. Ex. 23. In his letter to the Union, Lt. Colonel York
referred the Union to Major Pualoa, if it had any questions. The union
President got together with the stewards and Major Pualoa "due to the
fact that there were several changes in the picnic newsletter" (Tr. 41).
The "sore points" were the second and third paragraphs of the proposal
newsletter which read:
All picnickers are to come to work with their families by 8:30
a.m. Dismissal will be at 1:30 p.m. There will be cookies and
coffee served at 9:00 a.m. in the cafeteria. We will begin
serving lunch at 11:00 a.m.
Personnel who choose not to participate in BINGO, VOLLEYBALL,
SOFTBALL, TENNIS, CHILDREN'S GAMES nor indulge in BARBEQUE,
HOMEMADE DESSERTS, SODA AND BEER, will fulfill their daily 8 hour
work obligation or take annual leave.
See G.C. Ex. 23. It was undisputed that employees were not required to
attend the 1981, 1982, and 1983 picnics but, if they did not, they were
supposed to be at their work station. See Tr. 56.
10. The Union surveyed the Center's personnel and its then President
"came to the conclusion that no one really wanted to participate in
something like this if this -- with this type of -- I should say they
were being told that if they didn't participate in this manner that they
would have to work the eight hours or take the eight hours annual" (Tr.
42 and see also Tr. 50). By the time the union President had "gotten
all the information gathered," he learned that the picnic had been
cancelled (Tr. 42).
11. The information-gathering had to do with the signing, on June 7,
1984, of an unfair labor practice, alleging that management made a
"unilateral change of past practices of employees' picnic." See G.C. Ex.
1a. Lt. Colonel York got together with his labor-management relations
specialists, to deal with the unfair labor practice charge, and was told
that the holding of the picnic during duty hours violated regulatory
requirements. /5/ He investigated and was satisfied that he could "not
grant administrative leave for those type functions" (Tr. 57), that
employees could "not drink during duty hours" (Tr. 58), and that he
"would be pecuniarily liable for the children and the wives that were
taking the -- walking throughout the Center with all this material
handling equipment running about" (Tr. 58). Plus this, the Center's
workload was very heavy during around the time of the picnic and he had
had to bring in "overhire" personnel to help process the backload (Tr.
58). Based on these beliefs, Lt. Colonel York decided to cancel the
picnic. Accordingly, he included in the daily bulletin notice to
employees, dated June 8, 1984, the announcement that: "As the result of
discussions with CPO concerning administrative leave, the Center's
picnic on 29 June 84 is cancelled" (G.C. Ex. 24). A copy was sent to
the Union.
12. Lt. Colonel York conceded that holding picnics and recreational
events can be seen as beneficial to morale at the Center and that at the
Center "(w)e try to do that, yes" (Tr. 70). But he added that "most of
the time they're after duty hours" (Tr. 70).
13. The Union made no request to bargain after receiving the June 8
bulletin.
14. Retirees and families and friends were "very, very disturbed"
about cancellation of the picnic in which they had participated in prior
years (Tr 44). The employees were "upset," also, at the cancellation of
the picnic (Tr. 51). According to the then union President, the
cancellation had a "great impact" on morale at the Center (Tr. 51).
Employees felt that they had "been cheated out of a good relationship
between management and employees" and missed the participation with then
families and friends in coming "aboard to see their working facilities
as well as to participate in -- in having a good time together" (Tr.
52).
Discussion and Conclusions
The General Counsel has established, by a preponderance of the
evidence, /6/ that Respondent violated Sections 7116(a)(1) and (5) when
it unilaterally cancelled an annual picnic which had been held for the
past three years, during working hours.
1. Respondent correctly argues that the duty to bargain, under the
Statute, extends only to "conditions of employment." See R. Br. 3-8.
But it incorrectly argues that an annual picnic, sponsored by Respondent
and held during working hours for the past three years, is not such a
condition.
While there is no statutory right to an annual employee picnic, the
law is settled that any benefit given to employees over an extended
period of time with the knowledge and consent of responsible management
officials ripens into a condition of employment. United States
Department of the Treasury, Internal Revenue Service, Des Moines
District, 13 FLRA 296, 307 (1983). Such an established practice may not
be cancelled without affording the exclusive representative prior notice
and an opportunity to bargain. Admittedly, the Union here had no such
notice or opportunity. And, clearly, the annual picnics at the Center
were an established practice at the time they were cancelled. They had
been held intermittently for nearly 20 years. Starting in 1981, the
picnics were held consistently each year for three years; and another
picnic was scheduled for 1984. Each picnic since 1981 was held to
commemorate the founding of the Center. Each picnic since 1981 has been
held during working hours. Responsible management officials were not
only aware of the picnic, they actually set the dates; announced the
arrangements for each picnic in Center publications; and encouraged
employees to attend. Contrary to Respondent's assertion that the annual
picnic was a mere "social event" (R. Br. 3, such picnics were used by
managment as occasions upon which to award and recognize worthy
employees, in the presence of their friends and families. They were
used as morale builders. They promoted a good employment relationship
which leads, in turn, to a more productive workforce.
Several Authority cases under the Statute are cited by Respondent --
all distinguishable in that they concern purely recreational and social
opportunities and/or off-duty activities. See R. Br. 4-5 citing
National Federation of Federal Employees, Local 1363 and United States
Army Garrison, Youngsan, Korea, 12 FLRA 635 (1983) and 12 FLRA 665
(1983), wherein the Authority reviewed the negotiability of union
proposals and ruled that the dispensation of alcoholic beverages in
membership clubs had "no direct relationship to the work situation and
the employment relationship of unit employees" (12 FLRA at 636);
American Federation of Government Employees, Local 225, and U.S. Army
Armamant, Research and Development Command, Dover, New Jersey, 11 FLRA
630 (1983) wherein the Authority held nonnegotiable a union proposal for
access to picnic area and recreational activities on the ground that it
"did not concern matters which are 'conditions of employment'" (id. at
631) and nothing in the proposal indicated that picnics or recreation
were to be provided during working hours to serve any managerial
interests. International Association of Fire Fighters, AFL-CIO, CLC,
Local F-116 and Department of the Air Force, Vandenberg Air Force Base,
California, 7 FLRA 123 (1981), wherein the Authority ruled as
nonnegotiable a union proposal to grant off-duty personnel, and their
dependents, the right to hunt and fish on the Base, on the ground that,
the union adverted to "no relationship between the recreational
activities of off-duty employees and their dependents and employment as
firefighters at the Base" (id. at 124). Unlike any of the above cases,
this one deals with picnics arranged by management, used by management
to award and recognize worthy employees, and authorized by managment to
be held on duty time.
More apropos are cases cited by the General Counsel. See G.C. Br.
5-7. Thus, in Social Security Administration, Mid-America Service
Center, Kansas City, Missouri, 9 FLRA 229, 240 (1982, hereinafter, SSA)
it was held that an agency violated the Statute when it unilaterally
cancelled an established practice which permitted employees to hold
retirement receptions and catered luncheons during authorized luncheon
periods. See also Veterans Administration Medical Center, Bath, New
York and Veterans Administration, Washington, D.C., 12 FLRA 552, 553
(1983), wherein it was held that the agency violated the Statute when it
unilaterally changed the practice of providing a noon meal to physicians
on duty. See also United States Army Air Defense Center and Fort Bliss,
Fort Bliss, Texas, 12 FLRA 719, 720, 726 (1983), wherein it was held
that a practice which allowed firefighters to wash their cars while at
work had ripened into a condition of employment.
The rationale of these cases appears to be that practices authorized
by management during working hours and which boost employee morale,
concern or affect their conditions of employment. By the same token,
the adverse impact on employee morale caused by the cancellation of the
practices is an impact sufficient to trigger the duty to bargain.
2. Respondent argues to the contrary, that cancellation of the
annual picnic was a de minimis matter. See R. Br. 8-9. There was
undisputed testimony that the employees felt cheated out of a good
relationship with management by the cancellation and missed the
opportunity to have their families and friends come to the Center to see
where they worked. The union President testified that the cancellation
had a great impact on employee morale. For one thing, the cancellation
denied those receiving awards the pride in having their families and
friends witness recognition of their achievements, as workers at the
Center. Under the circumstances, the cancellation of the picnic had
more than a de minimis impact on the unit employees.
Respondent states that the unit employees were not interested in
attending the picnic. See R. Br. 8 and finding 10, above. In fact, the
employees resented the unilateral changes which management had made in
past practices concerning the picnic, including the fact that they would
not be able to drive home to pick up their families, but would have to
bring them to work with them. Most employees start work at 6:00 a.m.,
making it very difficult for them to assemble their families at such an
early hour.
3. Respondent argues that there was no established past practice of
holding picnics on duty time at the Center, and that three years is too
short a period in which to establish such a practice. See R. Br. 7-8.
This argument is rejected. The most recent picnics were held against
a backdrop of picnics which occurred both during and after working hours
for at least 18 years. Second, an annual picnic by definition occurs
only once a year. Three annual picnics mean that the practice prevailed
for three years, not an insignificant period of time. See Department of
Defense Dependents Schools, 12 FLRA 43 wherein the Authority ruled that
an agency could not unilaterally terminate a practice by which a union
official had attended four annual labor relations conferences. The
practice here was instigated by Respondent who, in 1984, referred to it
as the "1984 annual picnic." See finding 9, above. The practice
continued long enough that both employees and managment considered it to
be an annual event. In the one case cited by Respondent, Department of
the Navy, Naval Underwater Systems Center, Newport Naval Base, 3 FLRA
413, 414, 419, 420 (1980), the Authority found a past practice of 16
months duration could not be unilaterally changed.
4. As a remedy, the General Counsel seeks a cease-and-desist order,
a bargaining order, and an order to post an appropriate notice to
employees. These are all proper, under the circumstances of this case,
and will be recommended.
The General Counsel also seeks an order to restore the practice of
holding the June picnics, pending negotiations with the Union. See G.C.
Br. 12. The General Counsel points out that restoration of the status
quo ante is appropriate when an agency has failed to meet its duty to
bargain over the substance of a decision, "in order to avoid rendering
meaningless the mutual obligation under the Statute to negotiate
concerning changes in conditions of employment." U.S. Customs Service,
Region V, New Orleans, Louisiana, 9 FLRA 116, 119 (1982). See also,
Department of the Health and Human Services, Social Security
Administration, Baltimore, Maryland, 16 FLRA 674, 675 (1984).
Cancellation of the annual picnic, held during duty hours to honor
employees, to celebrate the founding of the Center, and to promote
morale appears to interfere with no statutory management right. See
Section 7106 of the Statute. /7/ See also the SSA case, 9 FLRA at 230
and 241 where the Authority required the agency to rescind and revoke a
guide by which it had unilaterally changed established past practices
with regard to retirement receiptions, etc., even though the agency
argued that "a critical work exigency existed" which justified the
unilateral cancellation. Compare the Center's reliance, here, on a
"very heavy" workload at the time of the unilateral cancellation (R. Br.
9). Accordingly, I will recommend an order that the status quo ante be
restored.
In view of the above conclusions and discussion, resolution of other
issues raised by the parties is unnecessary including the argument of
the General Counsel concerning applicable administration regulations.
The Center does not appear to be asserting that holding the picnics
violated regulations, only that Lt. Colonel York "reasonably believed"
that they did. See R. Br. 11 and footnote 3 above.
Ultimate Findings and Recommended Order
Respondent has violated and is violating Sections 7116 (a)(1) and (5)
by unilaterally cancelling the annual picnic, as alleged in the
complaint.
Accordingly, and pursuant to 5 CFR 2423.29 and Section 7118 of the
Statute, the Authority hereby ORDERS that the United States Army
Adjutant General, Publication Center, St. Louis, Missouri, shall:
1. Cease and desist from:
(a) Changing conditions of employment of bargaining unit
employees by terminating the practice of annually observing,
during working hours, the picnic of the U.S. Army Adjutant
General, Publications Center, St. Louis, Missouri, without first
notifying the American Federation of Government Employees,
AFL-CIO, Local 2761, the exclusive representative of unit
employees, and affording it the opportunity, upon request, to
bargain over such a change.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request of the American Federation of Government
Employees, AFL-CIO, Local 2761, reainstate the practice of
annually observing, during working hours, a picnic.
(b) Post at the Center's facilities copies of the attached
notice to employees, on forms to be furnished by the Regional
Director, Region VII, Federal Labor Relations Aurhority. Upon
receipt of such forms, they shall be signed by the Commander of
the Center and shall be posted and maintained by him for sixty
(60) consecutive days thereafter, in conspicuous places, including
all bulletin boards and other places where notices to employees
are customarily posted. The Commander shall take all reasonable
steps to insure that such notices are not altered, defaced, or
covered by other material.
(c) Pursuant to 5 CFR 2423.30, notify the Regional Director, in
writing, within 30 days from the date of this order, as to what
steps have been taken to comply herewith.
/s/ ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: March 28, 1985
Washington, DC
--------------- FOOTNOTES$ ---------------
(1) Member Frazier's separate opinion is set forth, infra.
(2) Compare Department of the Army, Fort Greely, Alaska, et al., 23
FLRA No. 105 (1986), wherein a direct connection was established between
the granting of exchange privileges to employees and the work situation
because the privileges were used as an incentive to working in an
isolated location, and Department of the Army, Dugway Proving Ground,
Dugway, Utah, 23 FLRA No. 80 (1986), wherein a connection was
established between the providing of housing to employees and financial
and recruiting benefits as well as hours of work involved.
(3) Section 7116 provides, in pertinent part that:
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency --
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter; (or) .
. .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter. . . .
(4) Abbreviations to be used herein are as follows. "Tr." refers to
the transcript. Corrections to it are attached to this decision and are
made pursuant to 5 CFR 2423.19(r). "G.C. Ex." refers to the exhibits of
the General Counsel and "R. Ex." to those of Respondent. "G.C. Br."
refers to the brief of the General Counsel and "R. Br." to that
Respondent.
(5) The regulations relied upon are those in the Federal Personnel
Mannual. See G.C. Br. 4, page 2, concerning excused absence and
stating, under S11-5 Administrative Discretion, that:
Absences from regularly assigned duties in connection with the
activities outlined below are considered constructive duty time;
that is, activity commanders are authorized to excuse any employee
without charge to leave or loss of pay to the extent indicated in
each case.
Picnics are not included among the activities outlined in the
regulation. On March 11, 1985, the Authority ruled that S11-5 does not
limit administrative leave to only those situations enumerated in the
Manual. See American Federation of Government Employees, AFL-CIO,
National Council of Field Labor Locals, 17 FLRA No. 24 (1985).
(6) This is the statutory burden of proof. See 5 U.S.C. 7118(a)(7)
and (8).
(7) 7106. Management rights.
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of any
agency --
(1) to determine the mission, budget, organization, number of
employees, and internal security practices of the agency; and
(2) in accordance with applicable laws --
(a) to hire, assign, direct, layoff, and retain employees in
the agency, or to suspend, remove, reduce in grade or pay, or take
other disciplinary action against such employees; . . .
(B) to assign work, to make determinations with respect to
contracting out, and to determine the personnel by which agency
operations shall be conducted.
(C) with respect to filling positions, to make selections for
appointments from --
(i) among properly ranked and certified candidates for
promotion; or
(ii) any other appropriate source; and
(D) to take whatever actions may be necessary to carry out the
agency mission during emergencies.
(b) Nothing in this section shall preclude any agency and any labor
organization from negotiating -- . . .
(1) at the election of the agency, on the numbers, types, and
grades of employees or positions assigned to any organizational
subdivision, work project, or tour of duty, or on the technology,
methods, and means of performing work;
(2) procedures which management officials of the agency will
observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected
by the exercise of any authority under this section by such
management officials.
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT change conditions of employment of bargaining unit
employees by terminating the practice of annually observing, during
working hours, the picnic of the U.S. Army Adjutant General Publication
Center, St. Louis, Missouri, without first notifying the American
Federation of Government Employees, AFL-CIO, Local 2761, the exclusive
representative of our unit employees, and affording it the opportunity,
upon request to bargain over such a change.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce any employee in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
WE WILL, upon request of the American Federation of Government
Employees, AFL-CIO, Local 2761, reinstate the past practice of annually
observing, during working hours, the picnic of the U.S. Army Adjutant
General, Publication Center, St. Louis, Missouri.
. . . (Agency or Activity)
Dated: . . . By: . . . (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region VII,
whose address is: 1531 Stout Street, Suite 301, Denver, Colorado 80202,
and whose telephone number is: (303) 844-5224; FTS 564-5224.