[ v05 p288 ]
05:0288(39)CA
The decision of the Authority follows:
5 FLRA No. 39
U.S. AIR FORCE, AIR FORCE LOGISTICS
COMMAND, WRIGHT-PATTERSON AIR
FORCE BASE, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 5-CA-331
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION AND ORDER IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED
IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING
THAT THE UNFAIR LABOR PRACTICE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
THEREAFTER, THE GENERAL COUNSEL FILED EXCEPTIONS WITH RESPECT TO THE
ADMINISTRATIVE LAW JUDGE'S DECISION AND ORDER.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MAMAGEMENT
RELATIONS STATUTE (5 U.S.C. 7101-7135), 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 DECISION
AND ORDER AND THE ENTIRE RECORD IN THE CASE, INCLUDING THE GENERAL
COUNSEL'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 5-CA-331 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., MARCH 9, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
LT. COLONEL FRANK E. WRIGHT
FOR THE RESPONDENT
CHARLES R. ROCK, ESQUIRE
SHEILA REILLY, ESQUIRE
FOR THE GENERAL COUNSEL
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C.
SECTION 7101, ET SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER,
FED. REG., VOL. 45, NO. 2, JANUARY 17, 1980, 5 C.F.R. CHAPTER XIV, PART
2411, ET SEQ.
PURSUANT TO AN AMENDED CHARGE FIRST FILED ON DECEMBER 27, 1979, BY
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, (HEREINAFTER
CALLED THE UNION), A COMPLAINT AND NOTICE OF HEARING WAS ISSUED ON
FEBRUARY 29, 1980, BY THE REGIONAL DIRECTOR FOR REGION V, FEDERAL LABOR
RELATIONS AUTHORITY, CHICAGO, ILLINOIS. THE COMPLAINT ALLEGES THAT THE
U.S. AIR FORCE, AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE
BASE, OHIO, (HEREINAFTER CALLED THE RESPONDENT OR AIR FORCE), VIOLATED
SECTIONS 7116(A)(1) AND (5) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (HEREINAFTER CALLED THE STATUTE OR ACT), BY VIRTUE OF
ITS ACTIONS IN UNILATERALLY IMPLEMENTING CHANGES IN THE MANAGEMENT
TECHNICAL INTERN PROGRAM WHILE NEGOTIATIONS ON SUCH PROGRAM WERE PENDING
BEFORE THE FEDERAL SERVICE IMPASSES PANEL.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON JUNE 18, 1980, IN
DAYTON, OHIO. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD,
TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES INVOLVED HEREIN. THE PARTIES SUBMITTED BRIEFS ON
AUGUST 1, 1980, WHICH HAVE BEEN DULY CONSIDERED.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATIONS.
FINDINGS OF FACT
THE UNION IS THE CERTIFIED EXCLUSIVE REPRESENTATIVE OF THE
NON-SUPERVISORY EMPLOYEES WORKING AT A NUMBER OF RESPONDENT'S FACILITIES
LOCATED THROUGHOUT THE UNITED STATES AND A PARTY TO A MASTER LABOR
AGREEMENT COVERING THE EMPLOYEES AT SUCH FACILITIES.
SINCE AUGUST OF 1972, RESPONDENT HAS HAD IN EFFECT A MANAGEMENT/CIVIL
ENGINEER INTERN PROGRAM IDENTIFIED AS AFLCR-40-16, WHICH WAS DESIGNED TO
TRAIN NEWLY HIRED EMPLOYEES AT VARIOUS FIELD INSTALLATIONS FOR
SUBSEQUENT HIGHER LEVEL PROMOTIONS TO STAFF POSITIONS AT THE AIR FORCE
LOGISTICS COMMAND HEADQUARTERS LOCATED AT WRIGHT-PATTERSON AIR FORCE
BASE, OHIO. ACCORDING TO AFLCR-40-16, THE CANDIDATES FOR THE INTERN
PROGRAM WERE TO BE SELECTED FROM VARIOUS CIVIL SERVICE REGISTERS. UPON
BEING SELECTED, THE INTERNS WERE REQUIRED TO SIGN A "CERTIFICATE OF
UNDERSTANDING" WHEREIN THEY ACKNOWLEDGE THAT FAILURE, UPON THE
COMPLETION OF THE PROGRAM, TO ACCEPT REASSIGNMENT AND TRANSFER TO
HEADQUARTERS, AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE
BASE, OHIO, COULD RESULT IN DISCHARGE. ADDITIONALLY, AFLCR-40-16
PROVIDES FOR THE ESTABLISHMENT OF AN APPRAISAL PANEL, COMPOSED OF
MANAGEMENT PERSONNEL, WHICH IS TO BE RESPONSIBLE FOR APPRAISING THE
INTERNS PERIODICALLY AND ISSUING RECOMMENDATIONS CONCERNING PROMOTIONS
TO GS-11 AND GS-12 LEVELS OF THE PROGRAM.
ON APRIL 9, 1979, RESPONDENT MAILED TO THE UNION A COPY OF A
"PROPOSED VERSION OF AFLCR 40-16" AND REQUESTED THE UNION'S COMMENTS
THEREON BY MAY 9, 1980. /1/ ON MAY 4, 1979, THE UNION ACKNOWLEDGED
RECEIPT OF THE RESPONDENT'S APRIL 9TH LETTER AND DEMANDED BARGAINING ON
THE NEWLY PROPOSED VERSION OF AFLCR 40-16. ON MAY 17, 1979, THE UNION
NOTIFIED THE RESPONDENT THAT MS. BETTY CARROLL AND MR. DONALD COOK,
VICE-PRESIDENT AND PRESIDENT, RESPECTIVELY, OF AFGE LOCAL 1138 WERE
AUTHORIZED TO REPRESENT THE UNION IN THE NEGOTIATIONS CONCERNING
PROPOSED CHANGES IN AFLCR 40-16. ON JUNE 4, 1979, THE UNION, UNDER THE
SIGNATURE OF MR. COOK, SUBMITTED ITS PROPOSAL CONCERNING THE SUGGESTED
CHANGES IN AFLCR 40-16.
ON JUNE 20, 21 AND 22, AND JULY 3, 1979, REPRESENTATIVES OF THE
RESPONDENT AND THE UNION MET AND DISCUSSED THEIR RESPECTIVE PROPOSALS
CONCERNING AFLCR 40-16. DURING THE COURSE OF THE AFOREMENTIONED
MEETINGS MANY OF THE UNION'S PROPOSALS AND/OR SUGGESTIONS WERE ADOPTED
BY THE RESPONDENT. FOLLOWING THE JULY 3RD MEETING, THE PARTIES ALL
AGREE THAT THEY WERE AT IMPASSE WITH RESPECT TO THREE OF THE UNION'S
PROPOSALS, NAMELY, (1) UNION REPRESENTATION ON THE APPRAISAL PANEL, (2)
DELETION OF THE REQUIREMENT FOR DISCHARGE IN THE EVENT AN INTERN
REFUSED, AFTER THE COMPLETION OF THE PROGRAM, TO ACCEPT A TRANSFER TO
WRIGHT-PATTERSON AIR FORCE BASE, AND (3) INCORPORATION OF AFLCR 40-16
INTO THE MASTER LABOR AGREEMENT SO THAT ALLEGED VIOLATIONS THEREOF COULD
BE MADE THE SUBJECT OF THE CONTRACTUAL GRIEVANCE PROCEDURE.
ON AUGUST 1, 1979, THE PARTIES HELD SEPARATE MEETINGS WITH A FEDERAL
MEDIATOR WHO UNSUCCESSFULLY ATTEMPTED TO BREAK THE IMPASSE ON THE THREE
UNION PROPOSALS SET FORTH ABOVE.
ON AUGUST 2, 1979, RESPONDENT SENT A LETTER TO THE UNION WHEREIN IT
RECAPPED THE NEGOTIATIONS TO DATE AND INFORMED THE UNION AS FOLLOWS:
THIS IS TO ADVISE YOU THAT WE ARE NOW AT IMPASSE ON THE THREE
PROPOSALS YOU PRESENTED TO
THE MEDIATOR AND THAT WE INTEND TO IMPLEMENT THE REVISED REGULATION
ON 10 AUGUST 1979, WITHOUT
INCORPORATION OF THE THREE PROPOSALS. THE REVISED REGULATION WILL
INCLUDE ALL OTHER UNION
PROPOSALS WHICH WERE AGREED TO DURING OUR NEGOTIATIONS.
ON AUGUST 10, 1979, RESPONDENT SENT A LETTER TO ALL ITS FIELD
INSTALLATIONS WHEREIN IT RECAPPED ALL ITS NEGOTIATIONS WITH THE UNION,
INCLUDING THE MEETING WITH THE FEDERAL MEDIATOR AND THE RESULTS THEREOF
WITH RESPECT TO THE THREE IMPASSED ITEMS. RESPONDENT ENCLOSED A DRAFT
COPY OF THE NEWLY REVISED AFLCR 40-16 AND INFORMED THE FIELD
INSTALLATIONS THAT THE DRAFT HAD BEEN SENT TO THE PRINTERS AND THAT
PRIOR TO FILLING ANY VACANCIES IN THE AFLCR 40-16 PROGRAM THEY SHOULD
REVIEW THE ADVANCED COPY. THE LETTER WENT ON TO STATE THAT IT WOULD
TAKE APPROXIMATELY 90-120 DAYS FOR THE DRAFT TO PROCEED THROUGH
EDITORIAL AND FINAL PRINTING.
ACCORDING TO THE UNCONTESTED TESTIMONY OF MR. DANIEL KOPPENHAFER,
RESPONDENT'S LABOR RELATIONS SPECIALIST, THE LETTER OF AUGUST 10, 1979
IN ACCORDANCE WITH USUAL PRACTICE, PUT THE NEWLY REVISED AFLCR 40-16
IMMEDIATELY INTO EFFECT. FURTHER, ACCORDING TO MR. KOPPENHAFER,
EDITORIAL AND PRINTING WERE A MINISTERIAL JOB TO BE ACCOMPLISHED BY THE
DIVISION OF ADMINISTRATION. MR. KOPPENHAFER FURTHER TESTIFIED THAT, IN
ACCORDANCE WITH RESPONDENT'S USUAL PRACTICE, THE DRAFT WAS ASSIGNED THE
DATE OF OCTOBER 26, 1979. IN RESPONSE TO QUESTIONS CONCERNING THE
OCTOBER 26, 1979, DATE, MR. KOPPENHAFER STATED THAT SUCH DATE WAS THE
BEST GUESS OF RESPONDENT'S MANAGEMENT PERSONNEL AS TO WHEN THE FINAL
DRAFT WOULD CLEAR EDITORIAL AND BE PRINTED. ACCORDING TO MR.
KOPPENHAFER'S TESTIMONY, THE ONLY SIGNIFICANCE OF THE DATE OF OCTOBER
26, 1979, WAS FOR FUTURE REFERENCE, SUCH DATE WAS NOT THE EFFECTIVE DATE
OF THE REGULATION.
ON OCTOBER 16, 1979, THE UNION REQUESTED THE ASSISTANCE OF THE
FEDERAL SERVICE IMPASSES PANEL REGARDING THE THREE IMPASSED ITEMS. A
COPY OF THE REQUEST FOR ASSISTANCE WAS SENT TO THE RESPONDENT ON THE
SAME DATE.
ON OCTOBER 31, 1979, THE FEDERAL SERVICE IMPASSES PANEL ACKNOWLEDGED
RECEIPT OF THE UNION'S REQUEST FOR ASSISTANCE. ON FEBRUARY 26, 1980,
THE IMPASSES PANEL ASSERTED JURISDICTION OVER THE COMPOSITION OF THE
RANKING PANEL BUT DECLINED TO ASSERT JURISDICTION OVER THE OTHER TWO
IMPASSED ISSUES.
SUBSEQUENTLY, ON MAY 7, 1980, AFTER RECEIVING POSITION PAPERS FROM
THE PARTIES, THE IMPASSES PANEL DECIDED THAT THE UNION WAS ENTITLED TO
BE ON THE RANKING PANEL. ON MAY 12, 1980, RESPONDENT IMPLEMENTED THE
IMPASSES PANEL'S DECISION WHICH CALLED FOR THE INCLUSION OF A UNION
REPRESENTATIVE ON THE RANKING PANELS AT ITS RESPECTIVE INSTALLATIONS.
THE RECORD DOES NOT INDICATE WHEN THE FINAL PRINTED VERSION OF AFLCR
40-16, BEARING THE DATE OF OCTOBER 26, 1979, WAS CIRCULATED. ACCORDING
TO THE UNION, THE FIRST TIME IT BECAME AWARE THAT THE FINAL PRINTED
VERSION OF AFLCR 40-16 HAD BEEN CIRCULATED WAS ON FEBRUARY 1980, WHEN A
COPY WAS OBTAINED FROM THE RESPONDENT'S OFFICIAL LIBRARY.
THE RECORD INDICATES THAT THE ONLY SIGNIFICANT DIFFERENCE BETWEEN THE
FINAL PRINTED VERSION OF AFLCR 40-16 AND THE CORRECTED DRAFT SENT TO
ADMINISTRATION FOR EDITORIAL AND PRINTING WAS THE DELETION OF THE WORD
"WILL" SOME FIFTY-NINE TIMES. /2/ SUCH DELETION DID NOT AFFECT THE
REGULATION AND APPEARS TO HAVE BEEN SOLELY AN EDITORIAL CHANGE FOR
PURPOSES OF CONFORMING THE LANGUAGE OF THE REGULATION TO USUAL AIR FORCE
JARGON.
THE RECORD FURTHER REVEALS THAT NO INTERN POSITIONS WERE FILLED UNDER
AFLCR 40-16. HOWEVER, RESPONDENT ACKNOWLEDGES THAT APPROXIMATELY THREE
INTERN POSITIONS WERE FILLED UNDER ANOTHER PROGRAM, PRESIDENTIAL INTERN
PROGRAM. UTILIZATION OF THE LATTER PROGRAM IMPACTS UPON THE AFLCR 40-16
PROGRAM IN THAT THE RESPONDENT APPEARS TO HAVE A CEILING ON THE TOTAL
NUMBER OF INTERNS IT MAY HIRE FROM ALL INTERN PROGRAMS.
DISCUSSION AND CONCLUSIONS
BOTH PARTIES ACKNOWLEDGE THAT, FOLLOWING IMPASSE, AN AGENCY OR
ACTIVITY MAY UNDER CERTAIN CONDITIONS, IMPLEMENT IMPASSED PROPOSALS
AFTER DUE NOTICE TO THE UNION INVOLVED. DEPARTMENT OF TREASURY, IRS,
CLEVELAND, OHIO, AND NTEU, A/SLMR NO. 972; U.S. ARMY CORPS OF
ENGINEERS, PHILADELPHIA DISTRICT AND AFGE LOCAL 902, A/SLMR NO. 673.
THE PARTIES FURTHER ACKNOWLEDGE, AT LEAST DURING CONTRACT
NEGOTIATIONS, THAT AN AGENCY OR ACTIVITY MAY NOT IMPLEMENT IMPASSED
PROPOSALS WHILE RESOLUTION OF SUCH IMPASSED PROPOSALS IS PENDING BEFORE
THE FEDERAL SERVICE IMPASSES PANEL (FSIP). WARNER ROBINS AIR LOGISTICS
CENTER, ROBINS AFB, GEORGIA AND AFGE LOCAL 987, A/SLMR 912. RESPONDENT,
HOWEVER, TAKES THE POSITION THAT THE HOLDING IN WARNER ROBINS IS NOT
APPLICABLE TO MID-TERM BARGAINING IMPASSE SITUATIONS SINCE THE FSIP HAS
GENERALLY DECLINED, AT LEAST UNDER THE EXECUTIVE ORDER, TO ASSUME
JURISDICTION OVER MID-TERM BARGAINING DISPUTES. RESPONDENT DOES NOTE
HOWEVER, THAT THE DEFINITION OF "IMPASSE" UNDER THE CURRENT RULES AND
REGULATIONS OF THE FSIP APPEAR TO BE BROADER THAN THOSE WHICH WERE IN
EFFECT UNDER EXECUTIVE ORDER 11491, AS AMENDED. THUS "IMPASSE" IS
DEFINED IN THE CURRENT FSIP REGULATIONS AS "THAT POINT IN NEGOTIATIONS
OF CONDITIONS OF EMPLOYMENT AT WHICH THE PARTIES ARE UNABLE TO REACH
AGREEMENT." PREVIOUSLY, "IMPASSE" WAS DEFINED AS "THAT POINT IN
NEGOTIATIONS OF A LABOR AGREEMENT AT WHICH THE PARTIES WERE UNABLE TO
REACH AGREEMENT."
IN LINE WITH THE FOREGOING, RESPONDENT TAKES THE POSITION THAT (1)
MID-TERM BARGAINING IMPASSES ARE NOT WITHIN THE JURISDICTION OF THE
FSIP, AND (2), IN ANY EVENT, NO VIOLATION OF THE STATUTE WAS COMMITTED
SINCE THE CHANGE IN AFLCR 40-16 OCCURRED SUBSEQUENT TO DUE NOTICE TO THE
UNION AND PRIOR TO THE UNION'S UNTIMELY PRESENTATION OF THE IMPASSED
ITEMS TO THE FSIP. FINALLY, RESPONDENT URGES DISMISSAL OF THE COMPLAINT
ON THE GROUND THAT NO VACANCIES WERE FILLED UNDER THE REVISED REGULATION
AND HENCE NO IMPLEMENTATION OF THE REGULATION OCCURRED.
THE GENERAL COUNSEL, WHO SEES NO DISTINCTION BETWEEN CONTRACT
BARGAINING AND MID-TERM BARGAINING, TAKES THE POSITION THAT AN AGENCY IS
FORECLOSED FROM PUTTING INTO EFFECT IMPASSED ITEMS WHEN SUCH ITEMS ARE
BEFORE THE FSIP. IN LINE WITH THE FOREGOING, THE GENERAL COUNSEL,
RELYING PRIMARILY ON THE OCTOBER 26, 1979, DATE APPEARING ON THE FINAL
PRINTED VERSION OF AFLCR 40-16, URGES A SECTION 7116(A)(5) AND (1)
FINDING SINCE THE CHANGE IN THE REGULATION OCCURRED WHILE THE IMPASSED
ITEMS WERE BEFORE THE FSIP. THE GENERAL COUNSEL IN HIS POST-HEARING
BRIEF, FOR THE FIRST TIME, REQUESTS THE UNDERSIGNED ADMINISTRATIVE LAW
JUDGE TO TAKE JUDICIAL NOTICE OF AFR 5-1, 1 JUNE 1978, STANDARD
PUBLICATIONS, WHICH SETS FORTH THE MANNER IN WHICH AIR FORCE REGULATIONS
ARE TO BE ISSUED. ACCORDING TO THE GENERAL COUNSEL, RESPONDENT'S
ACTIONS IN ALLEGEDLY MAKING THE DRAFT EFFECTIVE ON AUGUST 10, 1979,
PRIOR TO ITS FINAL PRINTING AND PUBLICATION, VIOLATED SUCH REGULATION.
A REVIEW OF THE ABOVE-STATED POSITIONS OF THE PARTIES MAKES IT CLEAR
THAT RESOLUTION OF THE ALLEGATIONS UNDERLYING THE INSTANT COMPLAINT
TURNS UPON THE TIMING OF THE CHANGES IN THE NEWLY REVISED REGULATION.
BASED UPON THE RECORD AS A WHOLE, INCLUDING THE UNCONTRADICTED TESTIMONY
OF MR. KOPPENHAFER AND RESPONDENT'S LETTERS OF AUGUST 2 AND 10, 1979, TO
THE UNION AND FIELD INSTALLATIONS, RESPECTIVELY, I FIND THAT THE NEWLY
REVISED REGULATION WAS EFFECTIVE ON AUGUST 10, 1979. THUS, IT IS NOTED
THAT THE AUGUST 10, 1979 LETTER TO THE FIELD INSTALLATIONS INSTRUCTED
SUCH INSTALLATIONS TO REVIEW THE REVISED DRAFT REGULATION PRIOR TO
FILLING ANY INTERN POSITIONS AND THE AUGUST 2, 1979 LETTER TO THE UNION
ADVISED THE UNION THAT THE NEWLY REVISED REGULATION WAS TO BE EFFECTIVE
ON AUGUST 10, 1979. ADDITIONALLY, I FIND NO BASIS FOR DISCREDITING MR.
KOPPENHAFER'S TESTIMONY THAT THE OCTOBER 26, 1979 DATE APPEARING ON THE
FINAL PRINTED EDITION OF AFLCR 40-16 WAS NOTHING MORE THAN A REFERENCE
DATE.
I FURTHER FIND THAT RESPONDENT FULFILLED THE OBLIGATIONS IMPOSED UPON
IT BY THE STATUTE WHEN IT GAVE THE UNION ON AUGUST 2, 1979, EIGHT DAYS
NOTICE OF ITS INTENT TO PUT THE NEWLY REVISED REGULATION, ABSENT THE
THREE IMPASSED UNION PROPOSALS, INTO EFFECT ON AUGUST 10, 1979.
FINALLY, ABSENT ANY TIMELY NOTICE BY THE UNION OF INTENT TO REQUEST
ASSISTANCE FROM FSIP, I FIND THAT THE RESPONDENT, BASED UPON THE
APPLICABLE CASE PRECEDENT CITED SUPRA, DID NOT VIOLATE THE STATUTE BY
MAKING A CHANGE IN AFLCR 40-16 ON AUGUST 10, 1979, SOME TWO AND ONE-HALF
MONTHS PRIOR TO THE UNION'S BELATED ACTION IN REQUESTING THE ASSISTANCE
OF THE FSIP. /3/
HAVING FOUND AND CONCLUDED THAT THE RESPONDENT DID NOT VIOLATE THE
STATUTE AS ALLEGED, IT IS RECOMMENDED THAT THE FEDERAL LABOR RELATIONS
AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5 C.F.R.2423.29(C).
ORDER
IT IS HEREBY RECOMMENDED THAT THE COMPLAINT IN CASE NO. 5-CA-331 BE,
AND HEREBY IS, DISMISSED.
BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DATED: AUGUST 15, 1980
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ THE RECORD INDICATES THAT THE PRINCIPAL REASON FOR CHANGING AFLCR
40-16 WAS THE RESPONDENT'S DESIRE TO MAKE THE INTERN PROGRAM AVAILABLE
TO EMPLOYEES ALREADY ON THE PAYROLL WHO APPEARED TO BE DEAD-ENDED IN
THEIR PRESENT POSITIONS. THE EXISTING PROGRAM APPEARS TO HAVE BEEN
RESTRICTED TO OUTSIDE APPLICANTS WHO WERE ON SPECIFIC CIVIL SERVICE
REGISTERS.
/2/ THE RECORD INDICATES THAT SOMETIME SUBSEQUENT TO AUGUST 2, 1979,
THE UNION SUBMITTED A MEMORANDUM WHEREIN IT NOTED CERTAIN TYPOGRAPHICAL
ERRORS IN THE DRAFT. IT APPEARS THAT RESPONDENT THEREAFTER NOTIFIED ITS
EDITORIAL DEPARTMENT OF THE ERRORS IN THE DRAFT AND THAT APPROPRIATE
CORRECTIONS WERE MADE.
/3/ IF, AS ALLEGED BY THE GENERAL COUNSEL FOR THE FIRST TIME IN HIS
POST-HEARING BRIEF, RESPONDENT'S ACTION IN INSTITUTING A CHANGE IN AFLCR
40-16 THROUGH THE MEDIUM OF A DRAFT WAS VIOLATIVE OF AIR FORCE
REGULATION 5-1, STANDARD PUBLICATIONS, I FIND SUCH PROCEDURAL ERROR,
STANDING ALONE, TO BE AN INSUFFICIENT BASIS FOR ALTERING THE FINDINGS
AND CONCLUSIONS SET FORTH ABOVE. TO THE EXTENT THERE WAS SUCH
VIOLATION, THE UNION IS OF COURSE FREE TO SEEK AN ALTERNATE REMEDY IN AN
APPROPRIATE FORUM.