[ v01 p311 ]
01:0311(38)CA
The decision of the Authority follows:
1 FLRA No. 38
PENNSYLVANIA ARMY AND AIR
NATIONAL GUARD
Respondent
and
ASSOCIATION OF CIVILIAN TECHNICIANS
Complainant
Assistant Secretary
Case No. 20-06613(CA)
DECISION AND ORDER
ON JANUARY 9, 1979, ADMINISTRATIVE LAW JUDGE WILLIAM B. DEVANEY
ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT IT CEASE AND
DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS AS SET FORTH IN
THE ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
NO EXCEPTIONS WERE FILED TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
REGULATIONS (44 F.R. 7). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE
SUBJECT CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS. /1/
ORDER
PURSUANT TO SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS
AND SECTION 7135 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE THE AUTHORITY HEREBY ORDERS THAT THE PENNSYLVANIA ARMY AND AIR
NATIONAL GUARD SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY ALTERING OR CHANGING THE ESTABLISHED POLICY OF
ALLOWING COMMITTEES OF
EMPLOYEES DULY AUTHORIZED TO ADMINISTER MISCELLANEOUS FUNDS,
GENERALLY KNOWN AS RECREATION
FUNDS, FUNDED BY RECEIPTS FROM VENDING MACHINES, AND/OR THE EMPLOYEE
MEMBERS OF EACH SUCH
FUND, AS THE CASE MAY BE, TO RECEIVE AND TO EXPEND SUCH FUNDS IN THE
SOLE DISCRETION OF SUCH
COMMITTEES, AND/OR THE MEMBERS OF EACH SUCH FUND, WITHOUT FIRST
AFFORDING THE ASSOCIATION OF
CIVILIAN TECHNICIANS, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES,
NOTICE AND AN OPPORTUNITY
TO MEET AND CONFER CONCERNING A PROPOSED CHANGE IN SUCH ESTABLISHED
POLICY.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS ACCORDED BY EXECUTIVE ORDER 11491, AS
AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) RESCIND PENNSYLVANIA MILITARY REGULATIONS NUMBER 37-3,
PENNSYLVANIA AIR NATIONAL GUARD
REGULATIONS NUMBER 11-2, DATED OCTOBER 3, 1977, SO FAR AS IT APPLIES
TO MISCELLANEOUS FUNDS,
GENERALLY KNOWN AS RECREATION FUNDS, FINANCED BY RECEIPTS FROM
VENDING MACHINES LOCATED AT
RESPONDENT'S FACILITIES.
(B) POST AT EACH FACILITY 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, PENNSYLVANIA ARMY AND AIR NATIONAL GUARD, 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 ALL CIVILIAN TECHNICIANS ARE
CUSTOMARILY POSTED. THE ADJUTANT
GENERAL SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE
NOT ALTERED, DEFACED, OR
COVERED BY ANY OTHER MATERIAL.
(C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, 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., MAY 9, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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 UNILATERALLY ALTER OR CHANGE THE ESTABLISHED PAST
PRACTICE OF ALLOWING COMMITTEES OF EMPLOYEES DULY AUTHORIZED TO
ADMINISTER MISCELLANEOUS FUNDS, GENERALLY KNOWN AS RECREATION FUNDS,
FUNDED BY RECEIPTS FROM VENDING MACHINES, AND/OR THE EMPLOYEE MEMBERS OF
EACH SUCH FUND, AS THE CASE MAY BE, TO RECEIVE AND TO DISBURSE SUCH
FUNDS IN THE SOLE DISCRETION OF SUCH COMMITTEES AND/OR THE MEMBERS OF
EACH FUND, WITHOUT FIRST AFFORDING THE ASSOCIATION OF CIVILIAN
TECHNICIANS, THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, NOTICE AND
AN OPPORTUNITY TO MEET AND CONFER CONCERNING A PROPOSED CHANGE IN SUCH
ESTABLISHED POLICY.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL RESCIND PENNSYLVANIA MILITARY REGULATIONS NUMBER 37-3,
PENNSYLVANIA AIR NATIONAL GUARD REGULATION NUMBER 11-2, DATED OCTOBER 3,
1977, INSOFAR AS IT APPLIES TO RECREATION FUNDS FINANCED BY RECEIPTS
FROM VENDING MACHINES LOCATED ON OUR PREMISES.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
ROOM 509, VANGUARD BUILDING, P.O. BOX 19257, 1111 - 20TH STREET, N.W.,
WASHINGTON, D.C. 20036.
LEONARD SPEAR, ESQUIRE
MERANZE, KATZ, SPEAR & WILDERMAN
TWELFTH FLOOR, LEWIS TOWER BUILDING
15TH AND LOCUST STREETS
PHILADELPHIA, PENNSYLVANIA 19102
FOR THE COMPLAINANT
MAJOR GEORGE M. ORNDOFF
ADJUTANT GENERAL'S OFFICE
DEPARTMENT OF MILITARY AFFAIRS
COMMONWEALTH OF PENNSYLVANIA
ANNVILLE, PENNSYLVANIA 17003
FOR THE RESPONDENT
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
CASE NO. 20-06613(CA)
DECISION AND ORDER
THIS PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED (HEREINAFTER
ALSO REFERRED TO AS THE "ORDER"), WAS INITIATED BY A CHARGE FILED ON, OR
ABOUT, NOVEMBER 29, 1977, AND A COMPLAINT FILED ON FEBRUARY 15, 1978
(ASST. SEC. EXH. 1). NOTICE OF HEARING ISSUED JUNE 2, 1978, PURSUANT TO
WHICH A HEARING WAS DULY HELD BEFORE THE UNDERSIGNED IN HARRISBURG,
PENNSYLVANIA, ON AUGUST 22, 1978.
THE ISSUE IN THIS CASE CONCERNS APPLICATION OF AN AGENCY REGULATION,
UNILATERALLY ISSUED, TO MISCELLANEOUS FUNDS, SOMETIMES KNOWN AS
RECREATION FUNDS. FOR MANY YEARS, THESE FUNDS HAVE BEEN FUNDED BY A
PERCENTAGE OF RECEIPTS FROM VENDING MACHINES LOCATED ON AGENCY PREMISES.
FOR MORE THAN 25 YEARS CIVILIAN EMPLOYEES CONTROLLED THE USE OF THESE
FUNDS WITH LITTLE AGENCY CONTROL AND WITH VARIABLE ACCOUNTABILITY.
PENNSYLVANIA MILITARY REGULATION 37-3, PENNSYLVANIA AIR NATIONAL GUARD
REGULATION 11-2, ISSUED OCTOBER 3, 1977, PROVIDED GUIDANCE AND POLICY
REGARDING THE OPERATION OF SUCH FUNDS AND REQUIRED, INTER ALIA,
APPROPRIATE RECORDS AND REGULAR FINANCIAL REPORTS TO THE MEMBERSHIP OF
EACH FUND. THE REGULATION WAS UNILATERALLY ISSUED BY THE ADJUTANT
GENERAL, MAJOR GENERAL NICHOLAS P. KAFKALAS, PAARNG, AND RESPONDENT
THEREAFTER REFUSED, UPON REQUEST, TO NEGOTIATE.
ALL PARTIES WERE REPRESENTED BY COUNSEL, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO
INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED HEREIN. AT THE CLOSE
OF THE HEARING, SEPTEMBER 25, 1978, WAS FIXED AS THE DATE FOR THE FILING
OF BRIEFS AND COMPLAINANT HAS TIMELY FILED A BRIEF, RECEIVED BY THIS
OFFICE ON SEPTEMBER 27, 1978, WHICH HAS BEEN CAREFULLY CONSIDERED.
RESPONDENT HAS NOT FILED A POST-HEARING BRIEF BUT ITS POSITION, FULLY
SET FORTH AT THE HEARING, HAS ALSO BEEN CAREFULLY CONSIDERED. UPON THE
BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES
AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS:
FINDINGS /2/
1. MR. KENNETH DOHNER, WHO HAS BEEN EMPLOYED AT THE ARMY AVIATION
SUPPORT FACILITY, ANNVILLE, PENNSYLVANIA, FOR ABOUT 4 1/2 YEARS, WAS
CHAIRMAN OF THE RECREATION FUND AT THE ANNVILLE SUPPORT FACILITY FOR
ABOUT A YEAR AND A HALF. MR. DOHNER TESTIFIED THAT THE FT. INDIANTOWN
GAP RECREATION FUND HAD HAD A CONSTITUTION (ALSO REFERRED TO AS
"BY-LAWS") FOR ABOUT THREE YEARS. THE CONSTITUTION HAD BEEN APPROVED BY
COLONEL ROBERT A. GUENTERNER, CHIEF OF STAFF, APRIL 5, 1976 (COMP. EXH.
2). THE INDIANTOWN GAP RECREATION FUND CONSTITUTION PROVIDED, INTER
ALIA, FOR AN ELECTED COMMITTEE TO ADMINISTER THE FUND; A TREASURER TO
DISBURSE ALL FUNDS, WITH COUNTERSIGNATURE OF ANOTHER MEMBER OF THE
COMMITTEE, AND TO RENDER AN ACCOUNT OF ALL TRANSACTIONS TO THE COMMITTEE
AND EMPLOYEES AT MEETINGS; VOTE OF MEMBERSHIP TO APPROVE EXPENDITURES
IN EXCESS OF $25.00; AND A NON-VOTING ADVISOR REPRESENTING THE CHIEF OF
STAFF.
2. IN OCTOBER, 1977, ABOUT A WEEK AFTER ITS ISSUANCE, MR. DOHNER
OBTAINED A COPY OF PMR 37-3, PA ANGR 11-2 (COMP. EXH. 1). THE FACILITY
COMMANDER, MAJOR LEROY SNELBACKER INSISTED THAT THE BY-LAWS (OR
CONSTITUTION) BE CHANGED SO THAT THE FACILITY COMMANDER COUNTERSIGN ALL
CHECKS. MR. DOHNER, CHAIRMAN, AND HIS COMMITTEE REFUSED TO MAKE THE
CHANGE TO GIVE THE FACILITY COMMANDER AUTHORITY TO COUNTERSIGN ALL
CHECKS AND MR. DOHNER RESIGNED FROM THE FUND COMMITTEE; HOWEVER, MR.
DOHNER TESTIFIED THAT A SCHEDULED PARTY HAD BEEN "VETOED".
3. MR. DOHNER TESTIFIED THAT HE HAD BEEN CONTACTED BY THE ARMY AIR
SUPPORT FACILITY, WASHINGTON, PENNSYLVANIA, AND HAD BEEN INFORMED THAT
THE FACILITY COMMANDER THERE ALSO WANTED TO CONTROL EXPENDITURES.
4. GEORGE E. TSHUDY, WHO HAS BEEN EMPLOYED AT THE COMBINED SPOT
MAINTENANCE SHOP, INDIANTOWN GAP FOR 24 1/2 YEARS, IS PRESENTLY A MEMBER
OF THE COMMITTEE OF THE RECREATION FUND AT THE SHOP. THIS FUND HAS BEEN
OPERATIONAL FOR APPROXIMATELY 30 YEARS. THE COMMITTEE HAD CONSISTED OF
THREE INDIVIDUALS APPOINTED BY THE SHOP SUPERVISORS. THERE HAD BEEN NO
BY-LAWS. IN MARCH, 1978, THE SHOP SUPERINTENDENT, MR. READINGER, CALLED
MR. TSHUDY TO HIS OFFICE AND ASKED HIM IF "WE COULD HAVE A COMMITTEE OF
PEOPLE DRAW UP SOME BY-LAWS TO CONFORM WITH THE NEW REGULATIONS THAT
CAME OUT IN OCTOBER." MR. TSHUDY TESTIFIED THAT:
"SO I WAS IN FAVOR OF THE REGULATION BECAUSE IT SEEMED TO BE A GOOD
THING AS FAR AS
PROTECTION OF THE MONEY IS CONCERNED, AS FAR AS OUR PEOPLE WERE
CONCERNED.
"BEFORE THAT, YOU REALLY DIDN'T KNOW EXACTLY WHAT KIND OF MONEY WE
HAD OR WHERE IT
WENT." (TR. 28)
* * * *
"I WOULD SAY IT IMPROVED IT TO THE POINT WHERE NOW THE MEMBERSHIP
KNOWS THE BALANCE OF THE
MONEY AND ANY EXPENDITURES TO THE FUND AND SO ON, WHICH WE HADN'T
BEFORE.
"Q. HAS THE PERSONNEL WELCOMED THIS CHANGE?
"A. YES, SIR." (TR. 30-31).
5. MR. DOHNER TESTIFIED THAT THE ANNVILLE FUND PROBABLY HAD AN
AVERAGE BALANCE OF AROUND $800.00; THAT THE BALANCE MIGHT GO AS HIGH AS
$2,000.00. MR. TSHUDY TESTIFIED THAT THE INDIANTOWN GAP FUND HAD INCOME
AROUND $100,00 PER MONTH AND, AT THE TIME OF THE HEARING, HAD A BALANCE
OF ABOUT $1,200.00. ALL FUNDS COME FROM A COMMISSION GRANTED BY THE
COMPANIES WHICH HAVE VENDING MACHINES ON THE PREMISES OF RESPONDENT.
6. ON NOVEMBER 29, 1977, COUNSEL FOR COMPLAINANT MR. LEONARD SPEAR,
WROTE GENERAL KAFKALAS, WHICH IS THE CHARGE IN THIS MATTER. RESPONDENT
REPLIED BY LETTER DATED DECEMBER 29, 1977, STATING, IN PART, AS FOLLOWS:
"THE REGULATION TO WHICH YOU REFER DOES NOT IN ANY MANNER ESTABLISH A
PROCEDURE OR IMPACT
OVER WHICH THE ADJUTANT GENERAL IS OBLIGATED TO BARGAIN. THIS DID
NOT IN ANY MANNER CHANGE A
WORKING CONDITION OF ANY TECHNICIAN.
* * * *
"THIS ACTION IS A RESERVED MANAGEMENT RIGHT UNDER THE PROVISIONS OF
SECTION 12(B) OF
EXECUTIVE ORDER 11491, AS AMENDED. IN ADDITION, IT IS AN INHERENT
RESPONSIBILITY OF THE
OFFICE OF THE ADJUTANT GENERAL TO INSURE PROPER ACCOUNTING AND
DISBURSEMENT OF ALL FUNDS
WITHIN UNITS OF THE PENNSYLVANIA NATIONAL GUARD AND THE DEPARTMENT OF
MILITARY
AFFAIRS. . . . " (RES. EXH. 1)
CONCLUSIONS
IT IS IMPORTANT TO BEAR IN MIND WHAT THIS CASE DOES NOT INVOLVE, AS
WELL AS WHAT IT DOES INVOLVE. FIRST, THIS CASE DOES NOT INVOLVE THE
DEDICATION OF INCOME FROM VENDING MACHINES TO RECREATION FUNDS. TO THE
CONTRARY, THE DEDICATION OF SUCH INCOME OCCURRED LONG IN THE PAST AND
HAS BEEN AN ACCEPTED PRACTICE FOR MORE THAN 25 YEARS. SECOND, THIS CASE
DOES NOT TURN ON WHETHER THE REGULATION WAS A GOOD REGULATION OR A BAD
REGULATION, OR WHETHER IT ACHIEVED A DESIRABLE RESULT. INDEED, THIS
CASE DOES NOT EVEN TURN ON WHETHER THE REGULATION WAS INTENDED TO
OPERATE IN THE MANNER SOME UNIT, OR FACILITY, COMMANDERS HAVE SOUGHT TO
APPLY IT.
WHAT THIS CASE DOES INVOLVE IS A PRACTICE OF VERY LONG STANDING--
MORE THAN 25 YEARS-- WHEREBY INCOME FROM VENDING MACHINES HAS GONE INTO
RECREATION FUNDS OPERATED BY EMPLOYEES AT EACH LOCATION THROUGHOUT THE
STATE OF PENNSYLVANIA WITHOUT SIGNIFICANT AGENCY CONTROL. FOR ALL OF
THIS PERIOD, MONEY HAS BEEN SPENT FOR A VARIETY OF PURPOSES INCLUDED
FLOWERS, PARTIES AND RECREATIONAL EQUIPMENT. THE RECORD SHOWS THAT,
WHILE THERE WAS A COMMITTEE TO ADMINISTER EACH FUND, SOME WERE ELECTED,
SOME WERE APPOINTED BY CIVILIAN SUPERVISORS; MOST HAD NO FORMAL BY-LAWS
FOR A LONG PERIOD OF TIME, INDEED, THE ONLY CONSTITUTION SHOWN TO HAVE
PRE-DATED THE REGULATION IN QUESTION HAD BEEN IN EXISTENCE ONLY ABOUT 3
YEARS.
PMR 37-3, PA ANGR 11-2 WAS ISSUED UNILATERALLY, WITHOUT PRIOR
NOTIFICATION OR NEGOTIATION, ON OCTOBER 3, 1977. THEREAFTER, RESPONDENT
REFUSED TO NEGOTIATE, STATING:
1. THE REGULATION DOES NOT ESTABLISH A PROCEDURE OR IMPACT OVER WHICH
THE ADJUTANT GENERAL
IS OBLIGATED TO BARGAIN.
2. THE REGULATION DID NOT CHANGE A WORKING CONDITION OF ANY
TECHNICIAN.
3. THIS ACTION IS A RESERVED MANAGEMENT RIGHT UNDER SECTION 12(B) OF
THE ORDER.
4. IN ADDITION, IT IS AN INHERENT RESPONSIBILITY OF THE ADJUTANT
GENERAL.
SECTION 11(A) OF THE ORDER, IN RELEVANT PART, PROVIDES AS FOLLOWS:
"AN AGENCY AND A LABOR ORGANIZATION . . . SHALL MEET AT REASONABLE
TIMES AND CONFER IN GOOD
FAITH WITH RESPECT TO PERSONNEL POLICIES AND PRACTICES AND MATTERS
AFFECTING WORKING
CONDITIONS. . . . "
OBVIOUSLY, AS THE DECISIONS SHOW, IT IS NOT ALWAYS EASY TO DEFINE
WITH PRECISION WHAT CONSTITUTES A PERSONNEL POLICY AND PRACTICE OR A
MATTER AFFECTING WORKING CONDITIONS WITHIN THE MEANING OF SECTION 11(A)
OF THE ORDER. FOR EXAMPLE, IN DEPARTMENT OF DEFENSE, AIR NATIONAL
GUARD, TEXAS AIR NATIONAL GUARD, CAMP MABRY, AUSTIN, TEXAS, A/SLMR NO.
738, 6 A/SLMR 591(1976), THE ASSISTANT SECRETARY HELD THAT THE ISSUANCE
OF A MEMORANDUM PROHIBITING THE CONSUMPTION OF ALCOHOLIC BEVERAGES,
DESPITE A LONG PAST PRACTICE, DID NOT FALL WITHIN THE AMBIT OF SECTION
11(A) OF THE ORDER. THE ASSISTANT SECRETARY STATED:
"SECTION 11(A) DESCRIBES THE LIMITED AREAS WHICH ARE SUBJECT TO THE
BARGAINING OBLIGATION
. . . IN MY VIEW, IT IS NOT INTENDED TO EMBRACE EVERY ISSUE WHICH IS
OF INTEREST TO AGENCIES
AND EXCLUSIVE REPRESENTATIVES AND WHICH INDIRECTLY MAY AFFECT
EMPLOYEES. RATHER, SECTION
11(A) ENCOMPASSES THOSE MATTERS WHICH MATERIALLY AFFECT, AND HAVE A
SUBSTANTIAL IMPACT ON,
PERSONNEL POLICIES, PRACTICES, AND GENERAL WORKING CONDITIONS. I DO
NOT CONSIDER A
RESTRICTION ON THE CONSUMPTION OF ALCOHOL ON A GOVERNMENT FACILITY TO
REACH SUCH A LEVEL OF
IMPORTANCE." (6 A/SLMR AT 592)
IT IS SIGNIFICANT THAT THE ASSISTANT SECRETARY IN FOOTNOTE 2, NOTED
AS FOLLOWS:
"2. IT IS NOTED THAT THE AGENCY MEMORANDUM HEREIN DID NOT PROHIBIT
OR OTHERWISE AFFECT THE
PRACTICE OF HOLDING PARTIES AT AIR GUARD FACILITIES FOR PROMOTION,
RETIREMENT, OR OTHER
REASONS." (6 A/SLMR AT 592)
IN DEPARTMENT OF THE NAVY, NORFOLK NAVAL SHIPYARD, A/SLMR NO. 805, 7
A/SLMR 199(1977) THE ASSISTANT SECRETARY HELD THAT THE UNILATERAL
ESTABLISHMENT OF A POLICY OF USING RADAR TO ENFORCE THE SPEED LIMITS
WITHIN THE NORFOLK NAVAL SHIPYARD DID NOT VIOLATE SECTIONS 19(A)(1) AND
(6) OF THE ORDER BECAUSE THE POLICY, OF USING RADAR, DID NOT AFFECT OR
CHANGE EMPLOYEE TERMS AND CONDITIONS OF EMPLOYMENT AND DID NOT CHANGE
ANY EXISTING TRAFFIC REGULATIONS. THE ASSISTANT SECRETARY STATED, IN
PART, AS FOLLOWS:
"IT IS UNDISPUTED THAT THE RESPONDENT'S DECISION TO USE RADAR TO
ENFORCE THE SPEED LIMITS
IN THE NORFOLK NAVAL SHIPYARD DID NOT AFFECT OR CHANGE EMPLOYEE TERMS
AND CONDITIONS OF
EMPLOYMENT. THUS . . . RESPONDENT'S ACTION DID NOT CHANGE
INSTRUCTION 5560.1B. NOR DID IT,
IN ANY WAY, CHANGE THE TRAFFIC REGULATIONS . . . INCLUDING THE POSTED
SPEED LIMITS AND THE
PENALTIES ASSESSED FOR VIOLATION OF THE SPEED LIMITS. UNDER THESE
CIRCUMSTANCES, I FIND THAT
THE RESPONDENT WAS NOT REQUIRED TO MEET AND CONFER WITH THE
COMPLAINANT CONCERNING THE NEW
METHOD OF ENFORCING THE EXISTING POLICY, AND THAT ITS FAILURE TO DO
SO DID NOT CONSTITUTE A
VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER." (7 A/SLMR AT
200)
IN WARNER ROBINS AIR LOGISTICS CENTER, ROBINS AIR FORCE BASE,
GEORGIA, NO. 40-7581(CA), THE COMPLAINT ALLEGED THAT THE ACTIVITY
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY UNILATERALLY
ESTABLISHING A PENALTY SYSTEM FOR DRIVERS RESPONSIBLE FOR TRAFFIC
ACCIDENTS ON ACTIVITY PREMISES. THE REGIONAL ADMINISTRATOR HAD
DISMISSED THE COMPLAINT AND IN DENYING THE UNION'S REQUEST FOR REVIEW OF
THE REGIONAL ADMINISTRATOR'S DISMISSAL OF THE COMPLAINT, THE ASSISTANT
SECRETARY CITED AND RELIED UPON A/SLMR NO. 805 AND STATED:
" . . . ALTHOUGH A UNILATERAL CHANGE WAS ALLEGED . . . THE EVIDENCE
FAILS TO ESTABLISH THAT
THE SUBJECT POLICY COMPLAINED OF EFFECTED ANY REAL CHANGE IN EMPLOYEE
TERMS AND CONDITIONS OF
EMPLOYMENT."
THE UNION THEN PETITIONED THE COUNCIL FOR REVIEW AND THE COUNCIL,
FLRC NO. 77A-83, 5 FLRC 981(1977), STATED, IN PART, AS FOLLOWS:
"IN THE COUNCIL'S OPINION, YOUR PETITION FOR REVIEW DOES NOT MEET THE
REQUIREMENTS OF
SECTION 2411.12 OF THE COUNCIL'S RULES; THAT IS, YOU DO NOT ALLEGE,
NOR DOES IT APPEAR, THAT
THE ASSISTANT SECRETARY'S DECISION IS EITHER ARBITRARY AND CAPRICIOUS
OR PRESENTS A MAJOR
POLICY ISSUE. . . . IN VIEW OF THE ASSISTANT SECRETARY'S FINDING
THAT 'THE EVIDENCE FAILS TO
ESTABLISH THAT THE POLICY COMPLAINED OF EFFECTED ANY REAL CHANGE IN
EMPLOYEE TERMS AND
CONDITIONS OF EMPLOYMENT,' IT DOES NOT APPEAR THAT . . . A
NEGOTIABILITY DETERMINATION WAS
NECESSARY IN ORDER FOR THE ASSISTANT SECRETARY TO RESOLVE THE UNFAIR
LABOR PRACTICE MATTER
BEFORE HIM . . . NOR IS ANY BASIS FOR COUNCIL REVIEW PRESENTED BY
YOUR RELATED CONTENTION THAT
THE ASSISTANT SECRETARY HAS ATTEMPTED TO ESTABLISH CRITERIA
INCONSISTENT WITH THE ORDER
. . . AGAIN NOTING THE ASSISTANT SECRETARY'S FINDING THAT THE
EVIDENCE FAILED TO ESTABLISH ANY
REAL CHANGE IN EMPLOYEE TERMS AND CONDITIONS OF EMPLOYMENT IN THE
CIRCUMSTANCES OF THIS
CASE." (5 FLCR AT 982)
IN U.S. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, NEW
ORLEANS DISTRICT, NEW ORLEANS, LOUISIANA, A/SLMR NO. 1034(1978), THE
ASSISTANT SECRETARY ADOPTED THE FINDINGS AND CONCLUSIONS OF
ADMINISTRATIVE LAW JUDGE STERNBURG THAT, WHERE THE AGENCY HAD GRANTED
THE UNION THE PRIVILEGE OF USING AGENCY TYPEWRITERS AND/OR SECRETARIES
FOR UNION BUSINESS SUCH PRIVILEGE BECAME AN ESTABLISHED TERM AND
CONDITION OF EMPLOYMENT, AND UNILATERAL TERMINATION OF THE USE OF AGENCY
EQUIPMENT AND PERSONNEL VIOLATED SECTIONS 19(A)(1) AND (6) OF THE ORDER.
AS TO SECTION 12(B) OF THE ORDER, JUDGE STERNBURG STATED:
" . . . HAD NOT THE RESPONDENT BY ITS ACTIONS PREVIOUSLY APPROVED THE
UNION'S PRACTICE OF
UTILIZING THE TYPEWRITERS AND SECRETARIES . . . I WOULD AGREE WITH
RESPONDENT'S
POSITION. HOWEVER, SUCH IS NOT THE CASE. AS NOTED ABOVE, ONCE THE
PRIVILEGE
HAS BEEN GRANTED, IT BECOMES A RIGHT, AND AS HERE A CONDITION OF
EMPLOYMENT, WHICH CANNOT BE
UNILATERALLY ALTERED." TO LIKE EFFECT, SEE, INTERNAL REVENUE SERVICE,
SOUTHWEST REGION, APPELLATE BRANCH OFFICE, NEW ORLEANS, LOUISIANA AND
NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 91, CASE NO.
64-3843(CA) (AUGUST 10, 1978) (DECISION OF THE ADMINISTRATIVE LAW
JUDGE).
HAD PMR 37-3, PA ANGR 11-2 MERELY REQUIRED THAT EACH FUND ESTABLISH
BY-LAWS AND ISSUE REGULAR FINANCIAL REPORTS TO ITS MEMBERS, IT MIGHT
WELL BE ARGUED THAT THERE WAS NO CHANGE IN EXISTING TERMS AND CONDITIONS
OF EMPLOYMENT AND, THEREFORE, NO REQUIREMENT TO MEET AND CONFER; BUT
THE REGULATION, PMR 37-3, PA ANGR 11-2, WENT MUCH FURTHER, INTER ALIA,
BY GRANTING COMMANDERS AND SUPERVISORS RESPONSIBILITY FOR IMPLEMENTING
THE POLICIES AND PROCEDURES PRESCRIBED, PURSUANT TO WHICH UNIT
COMMANDERS SOUGHT TO CONTROL EXPENDITURES. REMOVAL OF CONTROL OF
EXPENDITURES FROM THE COMMITTEES AND/OR THE MEMBERS OF EACH FUND, IN
WHICH SUCH CONTROL HAD EXCLUSIVELY RESTED FOR MORE THAN 25 YEARS, WAS A
CHANGE OF AN ESTABLISHED CONDITION OF EMPLOYMENT. INDEED, THE RECORD
SHOWS THAT RESPONDENT, THROUGH ITS UNIT COMMANDERS, COMPELLED THE
CANCELLATION OF PARTIES, FUNDED IN WHOLE OR IN PART BY SUCH FUNDS, WHICH
THE MEMBERS OF AT LEAST ONE FUND HAD APPROVED IN ACCORDANCE WITH
ESTABLISHED PAST PRACTICE. AS IN PART BY SUCH FUNDS, WHICH THE MEMBERS
OF AT LEAST ONE FUND HAD APPROVED IN ACCORDANCE WITH ESTABLISHED PAST
PRACTICE. AS IN THE NEW ORLEANS DISTRICT CASE, SUPRA, THE PRIVILEGE OF
USING SUCH FUNDS FOR PURPOSES APPROVED BY THE COMMITTEES AND/OR THE
MEMBERS, ONCE GRANTED BECAME A RIGHT AND A CONDITION OF EMPLOYMENT WHICH
CANNOT BE UNILATERALLY ALTERED. RESPONDENT VIOLATED SECTION 19(A)(1)
AND (6) OF THE ORDER BY ITS UNILATERAL ISSUANCE OF THE REGULATION AND BY
ITS REFUSAL TO BARGAIN, UPON COMPLAINANT'S REQUEST FOR BARGAINING, WHEN
COMPLAINANT LEARNED THAT SUCH REGULATION HAD BEEN ISSUED UNILATERALLY.
RECOMMENDED ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, 29
C.F.R. SECTION 203.26(B), AND SECTION 2400.2 OF THE TRANSITION RULES AND
REGULATIONS (5 C.F.R. 2400.2, FED.REG.VOL. 44, NO. 1, JANUARY 2, 1979,
P. 7), THE AUTHORITY HEREBY ORDERS THAT THE PENNSYLVANIA ARMY AND AIR
NATIONAL GUARD SHALL:
1. CEASE AND DESIST FROM:
A) UNILATERALLY ALTERING OR CHANGING THE ESTABLISHED PAST PRACTICE OF
ALLOWING COMMITTEES
OF EMPLOYEES DULY AUTHORIZED TO ADMINISTER MISCELLANEOUS FUNDS,
GENERALLY KNOWN AS RECREATION
FUNDS, FUNDED BY RECEIPTS FROM VENDING MACHINES AND/OR THE EMPLOYEE
MEMBERS OF EACH SUCH FUND,
AS THE CASE MAY BE, TO RECEIVE AND TO EXPEND SUCH FUNDS IN THE SOLE
DISCRETION OF SUCH
COMMITTEES AND/OR THE MEMBERS OF EACH SUCH FUND, WITHOUT FIRST
BARGAINING IN GOOD FAITH WITH
THE ASSOCIATION OF CIVILIAN TECHNICIANS, THE EXCLUSIVE REPRESENTATIVE
OF ITS EMPLOYEES, OR ANY
OTHER EXCLUSIVE REPRESENTATIVE.
B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS ACCORDED BY EXECUTIVE ORDER 11491, AS
AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE ORDER:
A) WITHDRAW PENNSYLVANIA MILITARY REGULATION NO. 37-3, PENNSYLVANIA
AIR NATIONAL GUARD
REGULATION NUMBER 11-2, DATED OCTOBER 3, 1977, SO FAR AS IT APPLIES
TO MISCELLANEOUS FUNDS,
GENERALLY KNOWN AS RECREATION FUNDS, FINANCED BY RECEIPTS FROM
VENDING MACHINES LOCATED ON
RESPONDENT'S PREMISES.
B) POST AT EACH FACILITY 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, PAARNG, 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 ALL
CIVILIAN TECHNICIANS ARE CUSTOMARILY POSTED. THE ADJUTANT GENERAL
SHALL TAKE REASONABLE STEPS
TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY
ANY OTHER MATERIAL.
C) PURSUANT TO 29 C.F.R. SECTION 203.27 AND SECTION 2400.2 OF THE
TRANSITION RULES AND
REGULATIONS (5 C.F.R. 2400.2, FED.REG.VOL. 44, NO. 1, JANUARY 2,
1979, P. 7) NOTIFY THE
AUTHORITY IN WRITING WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO
WHAT STEPS HAVE BEEN
TAKEN TO COMPLY HEREWITH.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: JANUARY 9, 1979
WASHINGTON, D.C.
WBD/MML
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 EXECUTIVE ORDER 11491, AS AMENDED
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT UNILATERALLY ALTER OR CHANGE THE ESTABLISHED PAST
PRACTICE OF ALLOWING COMMITTEES OF EMPLOYEES DULY AUTHORIZED TO
ADMINISTER RECREATION FUNDS AND/OR THE EMPLOYEE MEMBERS OF EACH SUCH
FUND, AS THE CASE MAY BE, TO RECEIVE AND TO DISBURSE SUCH FUNDS IN THE
SOLE DISCRETION OF SUCH COMMITTEES AND/OR THE MEMBERS OF EACH FUND,
WITHOUT FIRST BARGAINING IN GOOD FAITH WITH THE ASSOCIATION OF CIVILIAN
TECHNICIANS, THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE.
WE WILL WITHDRAW PENNSYLVANIA MILITARY REGULATION NUMBER 37-3,
PENNSYLVANIA AIR NATIONAL GUARD REGULATION NUMBER 11-2, DATED OCTOBER 3,
1977, INSOFAR AS IT APPLIES TO RECREATION FUNDS FINANCED BY RECEIPTS
FROM VENDING MACHINES LOCATED ON OUR PREMISES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
ACTIVITY
DATED: BY:
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, WASHINGTON REGIONAL OFFICE, FEDERAL LABOR RELATIONS
AUTHORITY, WHOSE ADDRESS IS ROOM 509, VANGUARD BLDG, 1111 - 20TH STREET,
N.W., WASHINGTON, D.C. 20036.
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/2/ THE REGIONAL ADMINISTRATOR HAD DENIED COMPLAINANT'S REQUEST FOR
THE APPEARANCE OF MR. DAVID T. HOWELL, STATE CHAIRMAN OF THE
PENNSYLVANIA COUNCIL, ASSOCIATION OF CIVILIAN TECHNICIANS. AT THE
COMMENCEMENT OF THE HEARING, COMPLAINANT RENEWED THIS REQUEST AND THE
UNDERSIGNED DENIED THE REQUEST FOR THE REASON THAT SEC. 206.7 OF THE
REGULATIONS CONTEMPLATES ONLY REQUESTS FOR APPEARANCE OF WITNESSES NOT
OFFICIALS OF A LABOR ORGANIZATION PRESENT SOLELY IN THEIR CAPACITY AS AN
OFFICER OF THE EXCLUSIVE REPRESENTATIVE. SOCIAL SECURITY
ADMINISTRATION, BUREAU OF HEARINGS AND APPEALS, NORTHEASTERN PROGRAM
SERVICE CENTER, FLUSHING, NEW YORK, A/SLMR NO. 1036(1978) DEPARTMENT OF
THE TREASURY, INTERNAL REVENUE SERVICE AND BROOKHAVEN SERVICE CENTER,
A/SLMR NO. 1125(1978) MR. HOWELL, ALTHOUGH PRESENT, WAS NOT CALLED AS A
WITNESS.
COMPLAINANT CALLED AS WITNESSES MR. KENNETH DOHNER AND MR. GEORGE
TSHUDY BUT HAD MADE NO REQUEST FOR APPEARANCE OF WITNESSES, PURSUANT TO
SEC. 206.7(B), AS TO EITHER AND SHOWED NO GOOD CAUSE FOR HAVING FAILED
TO DO SO. BOTH WITNESSES WERE KNOWN TO COMPLAINANT AND BOTH WERE CALLED
IN SUPPORT OF COMPLAINANT'S CASE IN CHIEF. ACCORDINGLY, THE UNDERSIGNED
DENIED COMPLAINANT'S REQUEST THAT THESE WITNESSES BE ORDERED PRODUCED ON
OFFICIAL TIME. BELLINGHAM FLIGHT SERVICE STATION, FEDERAL AVIATION
ADMINISTRATION, N.W. REGION, DEPARTMENT OF TRANSPORTATION BELLINGHAM,
WASHINGTON, A/SLMR NO. 597, 5 A.SLMR 756(1975).