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.