[ v16 p398 ]
16:0398(66)CA
The decision of the Authority follows:
16 FLRA No. 66
DELAWARE ARMY AND AIR NATIONAL GUARD
Respondent
and
ASSOCIATION OF CIVILIAN TECHNICIANS,
DELAWARE CHAPTER
Charging Party
Case No. 23-CA-104
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
the unfair labor practices alleged in the complaint, and recommending
that it be ordered to cease and desist therefrom and take certain
affirmative action. Although no timely exceptions were filed, /1/ since
the Judge's Decision was issued prior to the effective date of the
amendment to section 2423.29(a) of the Authority's Rules and
Regulations, /2/ the Authority shall consider the merits of this case.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
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. /3/ Upon consideration of
the entire record in this case, the Authority hereby adopts the Judge's
findings, conclusions and Recommended Order, to the extent consistent
herewith.
The complaint, as amended, alleges that the Delaware Army and Air
National Guard (the Respondent) violated section 7116(a)(1) and (5) of
the Statute by refusing to bargain in good faith with the Charging
Party, the Association of Civilian Technicians, Delaware Chapter (ACT),
the exclusive representative of its civilian technicians, concerning the
impact of an announced test program whereby full-time military personnel
would be used to fill vacancies in positions formerly occupied by
civilian employees, and by unilaterally implementing the change in
practice without affording the ACT an opportunity to negotiate
concerning such implementation.
ACT made seven specific proposals upon being informed of the
Respondent's intent to institute the test program. The sole issue is
whether the Respondent violated the Statute by refusing to negotiate
concerning those seven proposals, considered separately below.
Proposal No. 1.
Wearing of the military uniform.
Since the advent of the military test program it has become
more essential that a differentiation is established to identify
those employees in a civilian status. Therefore, it shall be the
policy of the labor organization and the employer that no civilian
employee be required to wear a military uniform.
The Judge found that the Respondent did not violate section
7116(a)(1) and (5) of the Statute by refusing to bargaining concerning
this proposal because, in his view, the proposal was not "germane" to
the Respondent's underlying decision to fill with military personnel
vacancies in positions formerly occupied by civilian employees. Without
passing on the Judge's specific conclusion in this respect, the
Authority agrees that no violation was committed. In the Authority's
view, the issues presented herein are substantially similar to those set
forth in the Authority's Decision and Order Upon Remand issued in
Division of Military and Naval Affairs, State of New York, Albany, New
York, 15 FLRA No. 65 (1984), wherein the Authority found that the
determination by the National Guard Bureau that technicians must wear
the military uniform while performing technician duties constituted
management's choice of a "methods and means of performing work" within
the meaning of section 7106(b)(1) of the Statute. Accordingly, and for
the reasons expressed in State of New York, the Authority finds that the
Respondent's election not to bargain upon this matter did not constitute
a violation of section 7116(a)(1) and (5) of the Statute.
Proposal No. 2
Area of Consideration
Full consideration for all vacancies shall be given to all
on-board technicians of the Delaware Army and Air National Guard.
When applicants from the full time (sic) technician force do not
meet the mandatory qualifications required for the position
announced, the position shall be filled by a technician in a
training status, unless no technician applies.
Merit System principles and merit system prohibited practices
as outlined in P.L. 95-454, Sections 2301 and 2302, be recognized
and adhered to by the employer at all times.
The Respondent contended that this proposal was nonnegotiable as it
violated management's right to fill or not to fill positions. The Judge
concluded that the proposal was not negotiable, finding that it was not
germane to the underlying decision but rather was an attempt to
negotiate the decision itself. In Association of Civilian Technicians,
New York State Council and State of New York, Division of Military and
Naval Affairs, Albany, New York, 11 FLRA No. 81 (1983), the Authority
held with respect to identical language (Union proposal 1) that the
first and third sentences of this proposal are within the duty to
bargain while the second sentence is inconsistent with management's
right to make selections under section 7106(a)(2)(C) and therefore is
nonnegotiable, and that the agency in that case was required to bargain
concerning the first and third sentences. For the reasons expressed
therein and inasmuch as this proposal is reasonably related to the
Respondent's underlying decision, the Authority finds that the
Respondent was obligated to bargain with respect to the first and third
sentences of this proposal as to the impact and implementation of its
decision to fill vacancies with military personnel, and that it violated
section 7116(a)(1) and (5) by failing to do so.
Proposal No. 3.
Reduction in force.
In the event of a reduction in force action, all those
positions filled by other than career or permanent technicians
shall be vacated and made available to those career or permanent
technicians being displaced. When necessary, training for
employees shall be the policy and vacancies be made available.
The Judge found that the Respondent violated the Statute by refusing
to bargain concerning this proposal. However, in New York State
Council, supra (Union Proposal 4), the Authority held that a
substantially identically worded proposal was nonnegotiable in that it
directly interfered with management's right to remove employees under
section 7106(a)(2)(A) of the Statute, and accordingly the complaint
herein is dismissed with respect to the above proposal.
Proposal No. 4.
Details.
While it is recognized that details of employees to work in
positions not normally assigned is sometimes necessary, it shall
not be the policy or practice to detail employees in such a manner
that would discriminate against the employees' rights to merit
promotion, protection under reduction-in-force actions, upward
mobility, equal employment opportunity and/or labor organization
membership.
The Respondent contended that this proposal would preclude the
reassignment of military personnel not covered by the Statute, and that
it was, therefore, nonnegotiable. The Judge concluded that performance
of available work by bargaining unit members was a matter on which the
Respondent was required to bargain, and that its refusal to do so
violated the Statute. We agree. There does not appear to be any
dispute that this proposal would apply only to civilian technicians
within the bargaining unit exclusively represented by ACT. In accord
with New York State Council, supra (Union Proposal 6), we find that the
proposal is within the duty to bargain, and that the Respondent's
refusal to do so violated section 7116(a)(1) and (5) of the Statute.
Proposal No. 5.
Upward mobility.
Career or permanent technicians shall be given first available
opportunity for positions in the bargaining unit, as per position
description, to train for future vacancies in the interest of
upward mobility.
The Respondent contended that this proposal was nonnegotiable in that
it would interfere with management's right, in filling positions, to
consider fully and lesser qualified candidates under its Merit Placement
Plan. The Judge concluded that the Respondent was obligated to bargain.
We agree. The Authority finds that the foregoing proposal would not
interfere with management's right to consider or select candidates from
any appropriate source in filling bargaining unit positions, and
therefore agrees with the Judge that the Respondent violated section
7116(a)(1) and (5) of the Statute by refusing to bargain concerning such
proposal. In so concluding, the Authority notes that an identical
proposal was held to be within the duty to bargain in New York State
Council, supra (Union Proposal 3).
Proposal No. 6.
Equal Employment Opportunity.
No position in the bargaining unit, as described in the
position description, shall be in any manner filled that would
circumvent the E.E.O. rights of any member of the bargaining unit.
The Respondent contended that the specific details relating to this
proposal are covered under its Merit Promotion Plan, and that ACT's
failure to address the issue during its 10 years of exclusive
recognition renders the proposal nonnegotiable. The Judge found that
the proposal was not negotiable in that it was not germane to the change
initiated by the Respondent, but instead sought to negotiate
Respondent's underlying decision to fill the six vacancies with military
personnel. The Authority disagrees. The proposal merely would require
the Respondent to act in a manner consistent with law; constitutes an
affirmation of rights already in existence; and addresses an area of
legitimate concern in the implementation of the Respondent's decision to
fill the vacancies with military personnel. Accordingly, the Authority
finds that the Respondent violated section 7116(a)(1) and (5) of the
Statute when it refused to negotiate concerning this proposal. /4/
Proposal No. 7.
Employee rights.
Both the Union and management recognize that law does not allow
full time military personnel to belong to or otherwise act for a
labor organization. The law does, however, recognize that
civilian technicians of the National Guard have the right, under
the provisions of the Civil Service Reform Act of 1978 and the
same extent as most federal employees, to belong or act for a
recognized labor organization.
The Respondent contended that this proposal did not deal with the
impact of its underlying decision but rather reflected existing
Department of Defense policy. The Judge found that Respondent's refusal
to negotiate concerning this proposal constituted a violation of section
7116(a)(1) and (5) of the Statute. The Authority agrees, for the
reasons stated by the Judge. /5/
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Authority and section 7118 of the Statute, it is hereby ordered that
Delaware Army and Air National Guard shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith with the Association of
Civilian Technicians, Delaware Chapter, the exclusive representative of
its civilian technicians, concerning the impact and implementation of
its decision to fill designated vacancies with full-time military
personnel, including, but not limited to, the exclusive representative's
proposals previously submitted to the Respondent and found herein to be
within the duty to bargain.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request, bargain in good faith with the Association of
Civilian Technicians, Delaware Chapter, the exclusive representative of
its civilian technicians, concerning the impact and implementation of
its decision to fill certain vacancies with full-time military
personnel, including, but not limited to, the exclusive representative's
proposals previously submitted to the Respondent and found herein to be
within the duty to bargain.
(b) Post at its facilities, copies of the attached Notice on forms to
be furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the Adjutant General, or his
designee, and shall be posted and maintained for 60 consecutive days
thereafter in conspicuous places, including all bulletin boards and
other places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said Notices are not
altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region II, in writing, within
30 days from the date of this Order, as to what steps have been taken to
comply herewith.
Issued, Washington, D.C., November 9, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to bargain in good faith with the Association of
Civilian Technicians, Delaware Chapter, the exclusive representative of
our civilian technicians, concerning the impact and implementation of
our decision to fill designated vacancies with full-time military
personnel, including, but not limited to, the exclusive representative's
proposals previously submitted and found by the Authority to be within
the duty to bargain.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL, upon request, bargain in good faith with the Association of
Civilian Technicians, Delaware Chapter, the exclusive representative of
our civilian technicians, concerning the impact and implementation of
our decision to fill designated vacancies with full-time military
personnel, including, but not limited to, the exclusive representative's
proposals previously submitted and found by the Authority to be within
the duty to bargain.
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 question concerning this Notice, or compliance
with any of its provisions, they may communicate directly with the
Regional Director, Region II, Federal Labor Relations Authority, whose
address is: Room 241, 26 Federal Plaza, New York, New York 10278, and
whose telephone number is: (212) 264-4934.
-------------------- ALJ$ DECISION FOLLOWS --------------------
DELAWARE ARMY AND AIR NATIONAL GUARD
Respondent
and
ASSOCIATION OF CIVILIAN TECHNICIANS,
DELAWARE CHAPTER
Charging Party
Case No. 23-CA-104
Mathilde L. Genovese, Esquire
For the General Counsel
Charles Gruver, Esquire
Captain Walter G. Powell
For the Respondent
Mr. Thomas J. Owsinski
Mr. Terry L. Habron
For the Charging Party
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION AND ORDER
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the United States Code, 5
U.S.C. 7101, et seq. /6/ and the Final Rules and Regulations issued
thereunder, Federal Register, Vol. 45, No. 12, January 12, 1980, 5
C.F.R. Chapter XIV. The charge, dated April 3, 1979, was filed on April
4, 1979 (G.C. Exh. 1(a)) and alleged a refusal to bargain in good faith
on the impact of the "Full Time Manning Program", as to which the
Association of Civilian Technician, Delaware Chapter (hereinafter, also,
referred to as "ACT") had requested negotiations on January 30, 1979, on
various dates from January 30, 1979, to and including March 8, 1979,
when Respondent implemented the program, all of which violated Section
16(a)(5) and (8) of the Statute.
An amended charge, dated January 10, 1980, was filed on January 15,
1980 (G.C. Exh. 1(c)) altered the name of Activity and/or Agency from
"Delaware Army National Guard" to "Delaware Army and Air National Guard"
but asserted the same basis as previously set forth in the charge of
April 3, 1979 (G.C. Exh. 1(a)) and alleged such conduct to have violated
Sections 16(a)(1), (5) and (8) of the Statute. /7/ On April 24, 1980,
the Complaint and Notice of Hearing issued (G.C. Exh. 1(e)). The
Complaint alleged in relevant part as follows:
"7. On or about January 30, 1979, the Union requested that
Respondent negotiate concerning the impact and implementation of
an announced test program whereby full time military personnel
would be used to fill vacancies in positions formerly occupied by
civilian employees . . . .
"8. Since on or about March 6, 1979 and at all times
thereafter, Respondent has refused and continues to refuse to
negotiate with the Union concerning the change in practice
described above in paragraph 7.
"9. On or about March 8, 1979, Respondent unilaterally, and
without affording the Union the opportunity to negotiate,
implemented the change in practice described about in Paragraph 7,
and at all times thereafter has continued to enforce this
practice."
The Complaint alleged that by such acts Respondent violated Section
16(a)(1) (paragraph 10), (5) (paragraph 11) and (8) (paragraph 12) of
the Statute. /8/ At the hearing, General Counsel moved to amend the
Complaint to delete paragraph 12, which had alleged "By the acts
described above in paragraphs 8 and 9 . . . Respondent has failed and
refused to comply with the provisions of Section 7114(a) and 7117(a) of
the Statute, in violation of Section 7116(a)(8) of the Statute".
General Counsel's motion was granted (Tr. 44), and the Complaint was
amended, as requested, to delete paragraph 12. No other request to
amend the Complaint has been made.
The Notice of Hearing set the hearing for July 17, 1980; however,
following separate motions for postponement filed by Respondent and by
General Counsel, and for good cause shown, the hearing, on June 20,
1980, was rescheduled for August 19, 1980, and on August 11, 1980, was
further rescheduled for September 4, 1980, pursuant to which a hearing
was duly held before the undersigned on September 4, 1980, in
Wilmington, Delaware.
All parties were represented at the hearing; however, Respondent
limited its participation to the presentation of two motions: First, a
motion, brought pursuant to Sec. 2423.19(m) of the Regulations, whereby
Respondent contended that it had never been given, as required by Sec.
2423.7 of the Regulations, the opportunity to present its views during
the investigative stage; and Second, a motion in three alternatives,
(a) postponement of the hearing to permit further investigation,
including presentation of Respondent's views and evidence; or (b) an
order requiring the Authority's resident investigator, Mr. Joseph P.
Hickey, to be made available for questioning concerning any
investigation conducted; /9/ or (c) postponement so that judicial
action seeking a temporary restraining order could be filed. Having
heard argument, Respondent's motions were denied and, professing its
desire to protect its legal position, which Respondent believed might be
compromised if it participated further in the hearing, Respondent, after
being cautioned that the hearing would proceed with or without
Respondent's presence, elected to withdraw from the hearing and,
accordingly, its representatives did withdraw from the hearing (Tr. 43).
All parties, including Respondent who elected not to exercise it,
were afforded full opportunity to be heard and General Counsel presented
evidence and testimony bearing on the issues involved. At the
conclusion of the hearing, October 6, 1980, was fixed as the date for
mailing post hearing briefs and counsel for General Counsel was
instructed to advise Respondent's representatives in writing of the date
for filing post hearing briefs. Accordingly, counsel for Respondent and
for the General Counsel timely mailed post hearing briefs, received on
or before October 8, 1980, which have been carefully considered. Upon
the basis of the entire record I make the following findings and
conclusions:
I. Respondent's Motion Relative to Investigation of
Charge.
Respondent's contentions, after full argument, were denied at the
opening of the hearing; however, Respondent's brief, which is directed
wholly to reiteration of these arguments, reasserts the arguments and it
is appropriate, for the record, to address Respondent's basic
contention. Although stated in various ways, Respondent's basic
contention is that,
" . . . In the present case, the FLRA failed to properly
contact the DNG (Delaware National Guard) at any time during the
true investigative stage of Case No. 3-CA-104, to allow it to
present any relevant evidence and its views." (Res. Brief, p. 4).
Not only is the assertion patently false, as the Regional Office of the
Authority, by letter dated April 11, 1979, had advised Respondent that
"An unfair labor practice charge had been filed" by ACT in Case No.
3-CA-104; "A copy of the charge is enclosed"; and requested "Your
response to the charge . . . ." (Res. Brief, App., Exh. J) and
Respondent readily admits that "DNG did not respond to this request . .
. ." (Res. Brief, Affidavit of Walter G. Powell, III, Par. 9); but
neither the quality nor manner of the General Counsel's investigation of
a charge are properly cognizable in a complaint proceeding. Section
4(f)(2) of the Statute provides that,
"(2) The General Counsel may--
"(A) investigate alleged unfair labor practices under this
chapter,
"(B) file and prosecute complaints under this chapter . . . ."
and Sec. 18(a)(1) of the Statute provides that,
"(a)(1) If any agency or labor organization is charged by any
person with having engaged in or engaging in an unfair labor
practice, the General Counsel shall investigate the charge and may
issue and cause to be served upon the agency or labor organization
a Complaint. . . . "
The Regulations provide, in part, as follows:
Section 2423.6(b) provides, in part, that
" . . . The Regional Director will, as a matter of course,
cause a copy of such charge to be served on the person(s) against
whom the charge is made, but shall not be deemed to assume
responsibility for such service.
Section 2423.7 provides, in part, as follows:
"(a) The Regional Director, on behalf of the General Counsel,
shall conduct such investigation of the charges as the Regional
Director deems necessary.
"(b) During the course of the investigation all parties
involved will have an opportunity to present their evidence and
views to the Regional Director. . . . "
Thus, while the Statute provides, inter alia, that the General
Counsel "shall investigate the charge" it does not purport to impose any
particular standard for such investigation but, rather, leaves the
investigation to the sound discretion of the General Counsel. The
Regulations further provide, in part, that the Regional Director, on
behalf of the General Counsel, "shall conduct said investigation of the
charge as the Regional Director deems necessary", which negates
Respondent's contention that the investigation must conform to any
particular format, here, apparently that the Regional Director, or his
agent, personally talk to Respondent's representatives. Although the
Regulations do provide that "During the course of the investigation all
parties involved will have an opportunity to present their evidence and
views to the Regional Director" (Sec. 2423.7(b)), Respondent, in this
case, certainly was afforded the opportunity to submit its views to the
Regional Director. Respondent was free to decline any response the
charge, as it did; but the Regional Director was required by the
Regulations to conduct only such investigation as he "deems necessary".
Indeed, as I stated at the hearing, the purpose of the General Counsel's
investigation of a charge is to determine whether there is, in his
judgement, probable cause to believe that an unfair labor practice has
occurred in which case he may issue a Complaint. The purpose of the
hearing is to determine, on the basis of the evidence and testimony,
whether the allegations of the Complaint are true.
Respondent's attempt to explore the nature or manner of the
investigation, inter alia by the subpoena of the investigation, Mr.
Hickey, or by an order requiring the investigator to answer questions,
not only was highly specious in view of its own refusal to respond to
the Regional Director's letter, of April 11, 1979, but was, in any
event, part and parcel of its basic assertion that the Authority "failed
to properly contact the DNG at any time during the true investigative
stage of case No. 3-CA-104, to allow it to present any relevant evidence
and its views" which, for reasons stated, is without basis.
Nevertheless, even if the General Counsel, or the Regional Director
acting on his behalf, had failed to investigate the charge or to afford
Respondent an opportunity to present its views, compliance with such
provisions of the Regulation pertaining to investigation of a charge
prior to issuance of a complaint is not a jurisdictional requirement in
a complaint case. Cf. Dairylee, Inc. and Local 653, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, 149 NLRB 829, 830, n.1 (1964).
Nor, of course, may Respondent assert any possible prejudice in the
failure of the Authority to afford Respondent an opportunity to settle
the case. The letter of April 11, 1979, stated, in part, that:
"Although a formal charge has been filed, the parties are
encouraged to meet and attempt to resolve the matter. The staff
member assigned the case is available to assist the parties in
arriving at a settlement in the matter." (Res. Brief, App., Exh.
J).
At the hearing, Respondent was further offered the opportunity to
discuss settlement which Respondent declined.
Accordingly, Respondent's motions, for reasons stated at the hearing
and herein, are denied.
II. Conversion to Full Time Military
The Report of the House Committee on Appropriations on the Department
of Defense Appropriation Bill, 1979 (H. Rep. No. 95-1398, 95th Cong.,
2d/Sess., July 27, 1978, G.C. Exh. 29), noting, inter alia, concern
about the high cost of the technical program, /10/ recommended the
establishment of a test program, in Reserve components other than the
Navy and Marine Corps which have demonstrated workable full-time
military support programs, by:
"(1) Converting the full-time training site support to military
personnel in lieu of using commercial contract as proposed in the
budget;
"(2) Filling all vacancies which occur in positions currently
held by 'status quo' technicians with full-time reservists on
active duty; and
"(3) Filling all positions not manned at the end of fiscal year
1978 and all new positions added to the structure in fiscal year
1979 with full-time active duty military support. Although dual
status technician vacancies can continue to be filled by dual
status technician, the Committee believes that the Chief of the
Reserve forces should also attempt to fill some of these with
full-time military support.
"This test program will give the Reserve components an
opportunity to determine if they can recruit personnel to fill
these positions with full-time military personnel. Also, it may
be necessary to change certain military personnel policies, such
as regular rotation . . . ." (G.C. Exh. 29, p. 223).
There can be no question of ACT's interest in, and concern about, the
program, which interest and concern was unquestionably heightened by
references in Report No. 95-1398 to a prior report, No. 95-451, critical
of the technician program because of unionization of the military, and
to the Defense Manpower Commission report which had pointed out that:
"(1) current 'status quo' policies threaten the mobilization
effectiveness of the two components which employ technicians in
the competitive service, particularly the Army Reserve;
"(2) labor union activity in technician program has increased,
with a resultant dilution of military command authority,
organizational effectiveness, and discipline;
"(3) technician programs contribute significantly to grade
stagnation and limit career opportunities for non-technicians,
particularly younger reservists;
"(4) technician programs encourage an aging force and produce
questionable mobilization assets." (G.C. Exh. 29, p. 222).
Report No. 95-1398 further noted that "The Full-Time Training and
Administrative Report concluded that the Department of Defense should
move away from the technician concept unless three requirements were
met. These three included:
"(1) the status of all technicians was changed from competitive
to accepted civil service, thereby preventing a technician from
holding his job as a technician when he is not eligible to be a
member of the military unit he serves;
"(2) the Reserve components be granted exclusion from Executive
Order 11491 which requires that they bargain with labor unions;
and
"(3) the wage board pay system undergoes significant reform."
(G.C. Exh. 29, p. 222).
Report No. 95-1398 defined "dual-status technician" as follows:
"The dual-status technician occupies a civilian job that is
essentially similar to the military occupation he has in the
Reserve component. The civilian grade and pay rate and the
military rank and pay are, by regulations, similar. A technician,
in addition to the civilian pay he receives, is paid for his
participation as a member of the Reserve." (G.C. Exh. 29, p. 221).
This case involves solely the impact and implementation of the
conversion to full-time military (hereinafter, referred to as "FTM"
which is also designated in various documents as "CFTM" or as "Full Time
Manning"; however, the designations, i.e., "FTM" and "CFTM" have
precisely the same meaning) of designated positions pursuant to the
notice of February 23, 1979, subsequently reduced from nine to six by
the notice of February 28, 1970 (See footnote 8, supra).
III. Alleged refusal to bargain on impact and
implementation
In November 1978, Mr. Terry L. Habron, President of the Delaware
Chapter of ACT, was informed by Captain Walter G. Powell of the test
program of FTM in the reserve components, including the Army and Air
National Guard, and was given a copy of a TWX dated November, 19788
(G.C. Exh. 3). After receiving the November, 1978, TWX, Mr. Habron
contacted Captain Powell to determine whether any additional, or more
specific, information was available and Captain Powell informed him that
no further information was then available. On January 30, 1979, Mr.
Habron wrote Captain Powell and requested bargaining on the impact and
implementation of the FTM program (G.C. Exh. 4). Captain Powell agreed
and, on February 16 (G.C. Exh. 6) set a meeting for February 23, 1979.
Mr. Habron testified that no meeting was held on February 23 but that on
February 23 he received Captain Powell's letter, dated February 23, 1979
(G.C. Exh. 7), which gave additional information and stated that three
existing vacancies in the Delaware Air National Guard and six vacancies
in the Delaware Army Guard were to be converted to FTM. Indeed, Captain
Powell's letter states that he had called Mr. Habron on February 13 to
inform him about the two messages and that Mr. Habron had said he would
pick them up on February 14 but that he, Habron, had not done so.
On February 28, 1979, Mr. Habron attended a meeting, initiated by
Captain Powell to discuss the FTM program, at which Major Adams, the
Project Officer of the FTM test program, was chief spokesman for
Respondent. Mr. Habron was given a copy of General Ianni's letter,
dated February 28, 1979 (G.C. Exh. 8), which listed the eight positions
to be advertised for civil service technicians and the three positions
to be advertised for FTM in the Delaware Army Guard; however, the
letter further stated, " . . . if any of the positions advertised as
technician positions are not filled by present on-board technicians, the
selectee must be hired for a two year active duty tour under Title 32 of
the United States Code" and Paragraph 3b. provided, in part, that:
"3.b. The Title 32 (Full Time Military) is a test program . .
. If it is successful, we except it to continue indefinitely, if
it is not successful, and the program is discontinued, those hired
under the Title 32 program will be eligible to compete for the
same positions within the civil service system . . . ." (G.C. Exh.
8).
Major Adams, in response to Mr. Habron's request to bargain on impact
and implementation, asserted that, because no collective bargaining
agreement existed, ACT had no right to bargain but could present views.
Major Adams was clearly in error as a union's representation rights,
pursuant to Sec. 14 of the Statute, flow from its status as exclusive
representative of the employees in the unit it represents, /11/ not from
the existence of a collective bargaining agreement; however, as the
parties subsequently met and ACT presented bargaining proposals, Major
Adams' statement had no significant effect. On March 1, 1979, at the
conclusion of a meeting concerning negotiations of ground rules for
contract negotiations, Captain Powell asked whether ACT had any
additional views on FTM and Mr. Thomas Owsinski, an ACT National Field
Representative, responded by asserting that ACT had a right to negotiate
on impact and implementation of the FTM program. Colonel Gallagher, who
had been called to attend the meeting when the subject of FTM arose,
agreed to meet with ACT but insisted that they meet the following day,
while Mr. Owsinski insisted that ACT needed at least two weeks to
prepare its proposals. Colonel Gallagher ultimately agreed to give ACT
a week to submit its proposals. ACT presented its proposals to
Respondent at a meeting held on March 6, 1979. Present at the March 6
meeting for Respondent were: Colonel Gallagher, Major Adams, and
Captain Powell; and for ACT: Mr. Habron, V.P. Robert Davis, ACT's
Chief Negotiator, Mr. Haig Stubblebine, and National Field
Representative, John Giarruso; and, in addition, a federal mediator was
present at ACT's request. The right to negotiate on impact and
implementation of a decision pursuant to a reserved right of management,
recognized under Executive Order 11491, as amended, see, for example,
AFGE Local 1940 and Plum Island Animal Disease Laboratory, Department of
Agriculture, Greenport, N.Y., FLRC No. 71A-11, 1 FLRC 100 (1971); U.S.
Department of Air Force, Norton Air Force Base, A/SLMR No. 261, 3 A/SLMR
175 (1973), was specifically incorporated in Sec. 6(b)(2) and (3) of the
Statute, and the duty is to negotiate, Department of Treasury, Internal
Revenue Service, Jacksonville District, 3 FLRA No. 103 (1980), not
merely to present views or to consult, Department of Health, Education
and Welfare, Social Security Administration, Great Lakes Program Service
Center, Chicago, Illinois, 2 FLRA No. 73 (1980). Of course, absent
impact, i.e., the decision did not affect or change employee terms and
conditions of employment, no obligation to meet and confer arises and
the failure to do so does not constitute a refusal in bargain,
Department of the Navy, Norfolk Naval Shipyard, A/SLMR No. 805, 7 A/SLMR
199 (1977); Social Security Administration, Bureau of Hearings and
Appeals, A/SLMR No. 979, 8 A/SLMR 148 (1978); Department of Defense,
United States Army, Fort Sam Houston, Texas, 1 FLRA No. 68 (1979);
Department of Defense, Air National Guard, Texas Air National Guard,
Camp Mabry, Austin, Texas, A/SLMR No. 738, 6 A/SLMR 59 (1976); /12/
nevertheless, typically, decisions seldom have gone beyond determining
whether a condition of employment has been changed, whether adequate
notice was given, and whether the union requested negotiations on impact
and/or implementation. Even where there is no immediate impact, there
may be an obligation to bargain where future impact is reasonably
probable, U.S. Government Printing Office and Joint Committee of Unions,
GPO, Case No. 3-CA-549 (ALJ, April, 1981).
Here, of course, impact is assumed /13/ and the question is whether
ACT's proposals were negotiable. Bargaining on impact and
implementation is markedly different from contract negotiations in
various respects. First, the change in condition of employment, as a
reserved right of management, is not negotiable. Second, union
proposals, to be subject to mandatory bargaining, must be germane to the
action taken by agency management, or as provided by Sec. 6(b)(2) and
(3) of the Statute, must concern "(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. . . . "
Consequently, proposals, which would be negotiable in other contexts,
are not subject to mandatory bargaining in impact negotiations if they
are not germane to the action taken. /14/
ACT's proposals, addressed hereinafter, were discussed and ACT, with
full knowledge that Respondent had found each non-negotiable, declined
to make any other proposal. While there may well be an obligation to
make counter proposals on negotiable matters of impact, Respondent was
under no obligation to make counter proposals to the possible impact of
its decision. In short, if ACT's proposals were not germane, Respondent
did not refuse to negotiate in good faith; but if ACT's proposals were
germane, Respondent's refusal to negotiate violated Sec. 16(a)(5) and
derivatively, also, violated Sec. 16(a)(1) of the Statute. /15/ ACT's
proposals were as follows:
Proposal No. 1
"Wearing of the military uniform.
* * * *
"Since the advent of the military test program it has become
more essential that a differentiation is established to identify
those employees in a civilian status. Therefore, it shall be the
policy of the labor organization and the employer that no civilian
employee be required to wear a military uniform." (G.C. Exh. 9).
Respondent's response was that, "Present policy . . . is that all
technician will wear the appropriate military uniform . . . Those
directives do not have an impact on the implementation of Full Time
Manning and the proposal is, therefore, non-negotiable." (G.C. Exh 10).
I agree that ACT's proposal No. 1 was not negotiable but not necessarily
for the reasons stated by Respondent. I find that this proposal was not
germane to Respondent's decision to fill six vacancies with full time
military personnel, i.e., did not concern procedures to be observed in
exercising this authority nor concern appropriate arrangements for
employees adversely affected by the exercise of such authority. This is
not to say that the subject, "Wearing of the military uniform" is not a
negotiable matter when properly raised as a matter for negotiation, but,
rather, that it may not be injected as a subject for mandatory
negotiations in bargaining on impact and implementation pursuant to Sec.
6(b)(2) and (3) of the Statute. Indeed, as General Counsel notes in his
Brief, the wearing of the military uniform was resolved during contract
negotiations (General Counsel Brief, p. 5 n. 5).
Proposal No. 2.
"Area of Consideration.
* * * *
"Full consideration for all vacancies shall be given to all
on-board technicians of the Delaware Army and Air National Guard.
When applicants from the full time technician force do not meet
the mandatory qualifications required for the position announced,
the position shall be filled by a technician in a training status,
unless no technician applies.
Merit system principles and merit system prohibited practices
as outlined in P.L. 95-454, Sections 2301 and 2302, be recognized
and adhered to by the employer at all times." (G.C. Exh. 9).
Respondent's response was, "This proposal is in violation of the
management right provision, to fill or not fill a position as authorized
in previous labor relations counsel decisions and is therefore
non-negotiable." (G.C. Exh. 10). I agree that ACT's Proposal No. 2 was
not negotiable but not necessarily for the reason stated by Respondent.
Proposal No. 2 was not germane to Respondent's decision to fill six
vacancies with full time military personnel, which is conceded in this
proceeding to have been a reserved right of management pursuant to Sec.
6(a) of the Statute; but, to the contrary, obviously, was an attempt to
"negotiate" the decision to fill vacancies with full time military
personnel which, as a reserved right of management, was not negotiable.
Proposal No. 3.
"Reduction in force.
* * * *
"In the event of a reduction in force action, all those
positions filled by other than career or permanent technicians
shall be vacated and made available to those career or permanent
technicians being displaced. When necessary, training for
employees shall be the policy and vacancies be made available."
(G.C. Exh. 9).
Respondent's response was, "Procedures as directed by Technician
Personnel Manual 351 govern all reduction-in-force actions for
technicians. Full Time Manning is a military matter. Both are
addressed in specific non-related regulations and are therefore
non-negotiable." (G.C. Exh. 10). I do not agree. The decision to fill
six existing vacancies with full time military personnel, while conceded
in this proceeding to be a reserved right of management, nevertheless,
potentially adversely affects members of the bargaining unit in the
event of a future reduction-in-force. Indeed, General Ianni's letter of
February 28, 1979, made specific reference to this area of concern in
addressing possible discontinuance of the FTM program and stated, " . .
. those hired under the Title 32 program will be eligible to compete for
the same positions within the civil service system . . . ." (G.C. Exh.
8). Without expressing any opinion as to the scope of permissible
bargaining, I conclude, merely, that ACT's proposal No. 3 was germane
and that Respondent's refusal to bargain violated Secs. 16(a)(1) and (5)
of the Statute.
Proposal No. 4.
"Details.
* * * *
"While it is recognized that details of employees to work in
positions not normally assigned is sometimes necessary, it shall
not be the policy or practice to detail employees such a manner
that would discriminate against the employees rights to merit
promotion, protection under reduction-in-force actions, upward
mobility, equal employment opportunity and/or labor organization
membership." (G.C. Exh. 9).
Respondent's response was, "The proposal would preclude the reassignment
of an active duty person from one position to another; therefore, since
active duty personnel are not covered by the Reform Act, this matter is
considered as a non-negotiable subject." (G.C. Exh. 10). I do not
agree. Although, as noted above, the decision to fill six existing
vacancies with full time military personnel was a reserved right of
management, performance of available work by members of the technician
bargaining unit is clearly germane and a matter on which Respondent was
required to bargain in good faith. Accordingly, Respondent's refusal to
bargain violated Secs. 16(a)(1) and (5) of the Statute.
Proposal No. 5.
"Upward mobility.
* * * *
"Career or permanent technicians shall be given first available
opportunity for positions in the bargaining unit, as per position
description, to train for future vacancies in the interest of
upward mobility." (G.C. Exh. 9).
Respondent's response was, "The Reform Act gives management the right to
determine methods and resources for filling positions and are covered in
the Delaware National Guard Merit Placement Plan. The first priority of
the Merit Placement Plan is to fill positions with fully qualified
personnel but include provision for consideration of candidates with
lesser qualifications. The proposal is considered non-negotiable."
(G.C. Exh. 10). I do not agree. Respondent's decision to fill certain
vacancies with full time military personnel rather than with civilian
technicians obviously creates a problem of the respective rights of the
members of the bargaining unit versus full time military personnel for
work in the bargaining unit. Again, without expressing any opinion as
to the permissible scope of bargaining, I find ACT's proposal germane
and Respondent's refusal to bargain violated Secs. 16(a)(1) and (5) of
the Statute.
Proposal No. 6.
"Equal Employment Opportunity.
* * * *
"No position in the bargaining unit, as described in the
position description, shall be in any manner filled that would
circumvent the E.E.O. rights of any member of the bargaining
unit." (G.C. Exh. 9).
Respondent's response was, "Title I of the Reform Act addresses
recruitment resources. The specific details are covered in the Delaware
National Guard Merit Placement Plan. Delaware Chapter ACT, Inc. has had
exclusive recognition since May 22, 1969 and has not chosen to address
this issue, if an issue, since that time; therefore the proposal is
considered as non-negotiable." (G.C. Exh. 10). I agree that proposal
No. 6 was not negotiable but not necessarily for the reasons stated by
Respondent. I find, simply, that proposal No. 6 was not germane. On
its face, the proposal seeks to "negotiate" the decision of Respondent
to fill a vacancy which was, and is, a reserved right of management and
a matter on which Respondent was not obligated to negotiate. That ACT
sought to "negotiate" Respondent's decision to fill a particular vacancy
with a full time military person was firmly shown by the testimony of
Barbara A. Moore (Tr. 104-108, G.C. Exh. 26). I am not unsympathetic to
ACT's objective but it may not negotiate Respondent's decision under the
guise of impact bargaining.
Proposal No. 7.
"Employee rights.
* * * *
"Both the Union and management recognize that law does not
allow full time military personnel to belong to or otherwise act
for a labor organization. The law does, however, recognize that
civilian technicians of the National Guard have the right, under
the provisions of the Civil Service Reform Act of 1978 and the
same extent as most federal employees, to belong or act for a
recognized labor organization." (G.C. Exh. 9).
Respondent's response was, "This proposal does not deal with impact of
Full Time Manning per se but is an existing policy of the DOD." (G.C.
Exh. 10). I do not agree. The right of Respondent to fill certain
vacancies with full time military personnel is conceded; nevertheless,
with full recognition that it is DOD policy that civilian technicians
have the right to form, join, or assist any labor organization, or to
refrain from any such activity, freely and without fear of penalty or
reprisal, ACT's proposal was germane. The fact that Respondent had
decided to fill certain vacancies with full time military personnel, who
would not be represented by ACT, was sufficient warrant for negotiation
of a proposal to insure continued affirmation of the right of
Respondent's civilian technicians to exercise rights assured by Section
2 of the Statute. Respondent's refusal to negotiate violated Secs.
16(a)(1) and (5) of the Statute.
As noted above, while I have found that ACT's proposals Nos. 3, 4, 5
and 7 were germane and that Respondent's refusal to bargain concerning
these proposals constituted a violation of Secs. 16(a)(1) and (5) of the
Statute, ACT's request to bargain and Respondent's duty to bargain
thereon was, and is, a duty to bargain in good faith concerning
appropriate arrangements for employees adversely affected by the
exercise of Respondent's authority to fill designated vacancies with
full time military personnel. Respondent is not required to negotiate
its decision to fill designated vacancies with full time military
personnel, which is conceded to be a reserved right of management, nor,
of course, may ACT delay or impede the exercise of Respondent's decision
by seeking to bargain on matters not germane to its decision, pursuant
to Sec. 6(a) of the Statute, i.e., ACT was, and is, entitled to bargain
as it requested, pursuant to Sec. 6(b)(3) of the Statute, concerning
appropriate arrangements for employees adversely affected by
Respondent's exercise of its right to fill designated vacancies with
full time military personnel. Within the perimeters of Sec. 6(b)(3),
ACT was, and is, entitled to negotiate concerning appropriate
arrangements for employees adversely affected by the FTM program. /16/
Inasmuch as Respondent refused to bargain on proposals germane to
Respondent's decision to fill vacancies with full time military
personnel, the recommended order will, of course, direct that they do
so, but without limitation to ACT's proposals Nos. 3, 4, 5, and 7. That
is, the order recommended will direct that Respondent bargain in good
faith on appropriate arrangements for employees adversely affected by
the FTM program including, but specifically not limited to ACT's prior
proposals Nos. 3, 4, 5 and 7. The essence of Respondent's duty was, and
is, to negotiate arrangements for employees adversely affected by the
exercise of its authority to adopt the FTM program; but, because
Respondent declared all of ACT's proposals to be non-negotiable, no
bargaining has taken place. Under the circumstances, it would thwart
the basic objective of Sec. 6(b)(3) to limit bargaining merely to
proposals previously made by ACT and only by ordering negotiations,
within the scope of Sec. 6(b)(3), can full opportunity to bargain
concerning the impact and implementation of Respondent's exercise of its
right to adopt the FTM program be achieved.
As bargaining concerning arrangements for employees adversely
affected will necessarily encompass matters relating to work
opportunity, job retention rights, etc., any agreement negotiated may
control, or directly affect, implementation of the FTM program after the
Fiscal Year 1979 implementation which is the sole matter raised by the
Complaint. Nevertheless, the Complaint did not include any allegation
concerning the Fiscal Year 1980 implementation which was subject to a
separate notice, separate request to negotiate, and separate
negotiations and, accordingly, no finding has been made with respect
thereto. I have given careful consideration to General Counsel's
contention that a status quo ante order should be granted and find such
contention unpersuasive. First, the Complaint alleges a refusal to
bargain only as to the Fiscal Year 1979 implementation of the FTM
program, essentially on March 8, 1979, although the three Air National
Guard positions were not implemented until April 19, 1970. Second, the
right to fill the designated vacancies with full time military personnel
is conceded to have been a reserved right of management. Accordingly,
no justification whatever has been shown that would warrant an order
requiring that positions filled by full time military be vacated.
Indeed, as Respondent's right to fill designated vacancies with full
time military personnel is conceded, the authority for such action would
be highly questionable under the circumstances, cf., Division of
Military and Naval Affairs, State of New York, Albany, New York,
1-CA-16, 1-CA-103 (ALJ, November 24, 1980), although a status quo ante
remedy may, under appropriate circumstances, be proper. See, for
example, San Antonio Air Logistics Center (AFLC), Kelly Air Force Base,
Texas, 5 FLRA No. 22 (1981); Department of Health, Education and
Welfare, Social Security Administration, Southeastern Program Service
Center, Birmingham, Alabama, Case No. 4-CA-15 (ALJ, January 8, 1980).
In any event, the unfair labor practice found was the refusal to bargain
concerning appropriate arrangements for employees adversely affected by
Respondent's exercise of its right to fill designated vacancies with
full time military which can be fully and adequately remedied by
ordering bargaining thereon. This is not a case where the exercise of
ACT's right to bargain on impact and implementation is affected by the
filling of the vacancies.
Having found that Respondent has engaged in, and is engaging in,
certain conduct in violations of Secs. 16(a)(1) and (5) of the Statute,
it is recommended that the Authority issue the following:
ORDER
Pursuant to Sections 5(g)(3) and 18(a)(7) of the Statute, 5 U.S.C.
Secs. 7105(g)(3) and 7118(a)(7), and section 2423.29 of the Final Rules
and Regulations, 5 C.F.R. Chapter XIV, Sec. 2423.29, Federal Register,
Vol. 45, No. 12, January 17, 1980, the Authority hereby orders that the
Delaware Army and Air National Guard shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith with the Association of
Civilian Technicians, Delaware Chapter, the exclusive
representative of its civilian technicians, concerning appropriate
arrangements for employees adversely affected by the exercise of
Respondent's authority, on or about March 8, 1979, to fill
designated vacancies with full time military personnel, including
but not limited to, the Association of Civilian Technician's
proposals concerning Reduction-in-Force (No. 3), Details (No. 4),
Upward mobility (No. 5) and Employee Rights (No. 7) submitted on,
or about, March 6, 1979.
(b) In any like or related manner interfering with,
restraining, or coercing any employee in the exercise by the
employee of any right under the Statute by refusing to negotiate
in good faith an appropriate arrangement for employees adversely
affected by the exercise of Respondent's authority to implement
the Full Time Military program.
2. Take the following affirmative action in order to effectuate the
purpose and policies of the Statute:
(a) Post at each of its facilities, offices, or stations in the
State of Delaware copies of the attached notice marked "Appendix"
on forms to be furnished by the Authority. Upon receipt of such
forms, they shall be signed by the Adjutant General and shall be
posted and maintained by him for 60 consecutive days thereafter in
conspicuous places, including all bulletin boards and other places
where notices to civilian technicians and members of the Delaware
Army and Air National Guard are customarily posted. The Adjutant
General shall take reasonable steps to insure that said notices
are not altered, defaced, or covered by any other material.
(b) Upon request, meet and negotiate in good faith, to the
extent consonant with law, regulations and the Statute, with the
Association of Civilian Technicians, Delaware Chapter, the
exclusive, representative of its civilian technician, or any other
exclusive representatives, concerning appropriate arrangements for
employees adversely affected by its exercise of authority under
Section 7106(a) of the Statute, on or about March 8, 1979, to fill
certain vacancies with full time military personnel.
(c) Pursuant to Section 2423.30 of the Final Rules and
Regulations, notify the Regional Director of Region 2, Room 241,
26 Federal Plaza, New York, New York 10278, in writing, within 30
days from the date of this Order as to which steps have been taken
to comply herewith.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: April 10, 1981
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to bargain in good faith with the Association of
Civilian Technicians, Delaware Chapter, the exclusive representative of
our civilian technicians, concerning appropriate arrangements for
employees adversely affected by the exercise of our authority, on or
about March 8, 1979, to fill designated vacancies with full time
military, including, but not limited to the Association of Civilian
Technician's proposals concerning Reduction-in-Force (No. 3), Details
(No. 4), Upward mobility (No. 5) and Employee Rights (No. 7), submitted
on, or about, March 6, 1979.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce any employee in the exercise of any right assured under the
Statute by refusing to negotiate in good faith, to the extent consonant
with law, an appropriate arrangement for employees adversely affected by
the exercise of our authority to implement the Full Time Military
program.
WE WILL, upon request, meet and negotiate in good faith, to the
extent consonant with law, with the Association of Civilian Technician,
Delaware Chapter, the exclusive representative of our civilian
technicians, or any other exclusive representative, concerning
appropriate arrangements for employees adversely affected by the
exercise of our authority under Section 7106(a) of the Statute, on, or
about, March 8, 1979, to fill certain vacancies with full time military
personnel.
Delaware Army and Air National
Guard
Dated: By: Adjutant General
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any question concerning this Notice, or compliance
with any of its provisions, they may communicate directly with the
Regional Director, Federal Labor Relations Authority, Region 2, whose
address is: Room 241, 26 Federal Plaza, New York, New York 10278, and
whose telephone number is: (212) 264-4934.
--------------- FOOTNOTES$ ---------------
/1/ The Respondent filed exceptions which were untimely and have not
been considered.
/2/ Section 2423.29(a) now provides, in pertinent part, that "in the
absence of exceptions filed timely . . . , the findings, conclusions,
and recommendations in the decision of the . . . Judge shall, without
precedential significance, become the findings, conclusions, decision
and order of the Authority and all objections and exceptions thereto
shall be deemed waived for all purposes."
/3/ The Authority finds it unnecessary to deal with the Judge's
rationale regarding the adequacy of the pre-complaint investigation in
this case. At this stage of the proceedings, we are concerned only with
resolving the merits of the complaint.
/4/ American Federation of Government Employees, AFL-CIO, National
Council of EEO Locals and Equal Employment Opportunity Commission, 10
FLRA 3 (1982) (Proposal I), enforced sub nom. Equal Employment
Opportunity Commission v. FLRA, No. 82-2310 (D.C. Cir. Sept. 21, 1984).
/5/ Id.
/6/ For convenience of reference, Sections of the Statute hereinafter
are, also, referred to without inclusion or the initial "71" of the
Statute reference, e.g., Sec. 7116(a)(5), simply as "16(a)(5)".
/7/ Respondent's Brief pp. 3 and 4 and Appendix, Exhibits B, C and D
thereto, show that ACT had filed a separate charge against the Delaware
Army and Air National Guard, docketed as 3-CA-95 (subsequently,
23-CA-95), which had alleged that the Delaware Air National Guard on
February 3, 1979, had implemented a "Full Time Training and
Administration Test" which violated Sec. 16(a)(1), (2), (5) and (8) of
the Statute; that the charge in Case No. 3-CA-95, 23-CA-95 had been
withdrawn with the approval of the Regional Director on January 19, 1980
(Res. Exh. D, supra).
/8/ As the allegations of the Complaint plainly show, which track the
like allegations of the charge and amended charge, the only unfair labor
practice alleged is the refusal to negotiate concerning the impact and
implementation of the announced test program alleged to have been
unilaterally implemented on or about March 8, 1979. The record shows
that six positions initially were intended to be converted to full time
military in the Delaware Army National Guard (G.C. Exh. 7) which had
been reduced to three by the notice of February 28, 1979 (G.C. Exh. 8)
and the March 8, 1979, implementation designated only three (G.C. Exh.
11); and that three positions were intended to be converted to full
time military in the Delaware Air National Guard (G.C. Exhs. 7, 13) and
three were implemented (G.C. Exh. 13, attachments March 28 and April 19,
1979); that the proposed program applied to Fiscal Year 1979; and that
specified positions were identified for conversion during Fiscal Year
1979.
Although the record shows that on September 27, 1979 (G.C. Exh. 14),
Respondent advised ACT that: (a) "F.Y. 80 program implementation will
involve the reestablishment of the technician hiring freeze on 1 October
1979 . . . .", and (b) that "all new positions and those positions
vacated during the freeze will be filled by full time military
personnel, with few exceptions"; that ACT on October 9, 1979, requested
bargaining on the impact of the Fiscal Year 1980 program (G.C. Exh. 15);
that Respondent advised ACT on October 24, 1979, that it intended to
implement the Fiscal Year 1980 program on November 7, 1979 (G.C. Exh.
15); and that a negotiating session was held on October 25, 1979, as to
which Respondent on October 30, 1979, declared certain of ACT's
proposals non-negotiable (G.C. Exh. 17), none of these assertions are
included in the Complaint nor is there any allegation in the Complaint
that encompasses a failure or refusal to bargain in good faith as to
Respondent's notice of September 27, 1979, which, although a further
extension of the full time military program, was materially different in
scope, content and application than the limited test implemented on, or
about, March 8, 1979, for Fiscal Year 1979, as to which ACT requested
bargaining on October 9, 1979, and a negotiating session was held on
October 25, 1979. Because the Complaint contains no allegation of any
unfair labor practice as to the Fiscal Year 1980 implementation, as to
which, as noted above, there was a wholly separate request for
bargaining and a bargaining session was held, no unfair labor practice
may be found with respect thereto. Department of the Treasury, Bureau
of Engraving and Printing, 4 FLRA No. 6 (1980). Necessarily, any remedy
for any violation found must be limited to the violation, if any, found.
/9/ By letter dated July 23, 1980, (Res. Brief, App., Exh. 2)
Respondent requested that the Regional Director issue subpoenas for the
attendance of Messrs. Robert Davis, Terry Habron and Joseph P. Hickey at
the hearing then set for August 19, 1980. Subsequently, on August 11,
the hearing was rescheduled for September 4, 1980. No subpoenas were
issued, and, of course, no hearing was held on August 19, 1980. It does
not appear that subpoenas were requested by Respondent for the
appearance of witnesses at the September 4, 1980, hearing; however, by
letter dated August 22, 1980 (Res. Brief, App., Exh. 3) the Authority
advised Captain Powell that it could not furnish a copy of his affidavit
in Case 23-CA-104 for the reason that he had provided none.
/10/ See, also Report of the House Committee on Appropriation on the
Department of Defense Appropriation Bill, 1980 (H. Rep. No. 96-450, 96th
Cong., 1st Sess., September 20, 1979, G.C. Exh. 24).
/11/ Respondent had recognized ACT as the exclusive representative of
technicians for more than ten years (Tr. 62-63).
/12/ I am aware that Congressman Ford, in a post enactment statement,
stated, in part, as follows:
"Because of the increased stature for 'adverse effect'
negotiations, and for other reasons, neither the conference report
nor the statement of managers includes a de minimus proviso
allowing an agency to escape from the bargaining obligation. It
is fully the expectation that where the adverse effects are 'de
minimus' negotiations will occur but that both parties will see
that they proceed with appropriate dispatch." Legislative History
of the Federal Service Labor-Management Relations Statute, Title
VII of the Civil Service Reform Act of 1978, Committee on Post
Office and Civil Service, House of Representatives, 96th Cong.,
First Session Committee Print No. 96-7, November 19, 1979, at page
994.
/13/ Indeed, I specifically find that the proposed FTM program did
change a condition of employment and that such change, obviously, caused
impact as to which ACT was entitled to bargain.
/14/ The change in conditions of employment, pursuant to a reserved
right of management, is a fait accompli, subject only to negotiations on
impact and implementation. In my judgment, a proposal, albeit under the
guise of impact and/or implementation, which seeks to negotiate the
decision itself is not negotiable even if, as Congressman Ford stated in
his post enactment comments,
" . . . section 7114(b)(2) requires that the agency 'discuss'
in the negotiations any proposal regarding conditions of
employment even if that proposal is non-negotiable. The agency is
not required to 'negotiate' over non-negotiable proposals. It is,
however, required to 'discuss' them." Legislative History, supra,
pp. 995-996.
With all deference, Congressman Ford's statement is a non
sequitur. If a matter is non-negotiable, a failure or refusal to
discuss it would not support an order to bargain, or, stated
otherwise, would not constitute a violation of Sec. 16(a)(5)
although the failure to bargain in good faith on impact and
implementation does violate Sec. 16(a)(5). See, for example, San
Antonio Air Logistics Center (AFLC), Kelly Air Force Base, Texas,
5 FLRA No. 22 (1981).
/15/ Section 17(c) provides a means for determination of
negotiability disputes by direct petition to the Authority. There is
nothing in the record that shows that ACT made any election of the
negotiability "route" and Sec. 2424.5 of the Regulations, in any event,
allows an election. As noted above, this case does involve actual or
contemplated changes in conditions of employment.
/16/ There is question that all civilian technicians were invited,
and strongly encouraged, to apply for full time military positions (See,
for example, G.C. Exh. 8); nor did ACT seek to negotiate procedures
which management officials will observe in exercising its authority to
fill designated vacancies with full time military personnel.
Accordingly, while ACT had the right to negotiate procedures, pursuant
to Sec. 6(b)(2) of the Statute, it sought negotiations only as to
adverse effect, pursuant to Sec. 6(b)(3).