[ v08 p307 ]
08:0307(71)CA
The decision of the Authority follows:
8 FLRA No. 71
DIVISION OF MILITARY AND
NAVAL AFFAIRS,
STATE OF NEW YORK,
ALBANY, NEW YORK
Respondent
and
NEW YORK STATE COUNCIL OF
ASSOCIATION OF CIVILIAN
TECHNICIANS, INC.
Charging Party
Case Nos. 1-CA-16
1-CA-103
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
HIS DECISION FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR
LABOR PRACTICES ALLEGED IN THE COMPLAINTS AND RECOMMENDING THAT THE
COMPLAINTS BE DISMISSED IN THEIR ENTIRETY. THEREAFTER THE GENERAL
COUNSEL FILED EXCEPTIONS TO CERTAIN PORTIONS OF THE ADMINISTRATIVE LAW
JUDGE'S DECISION, WITH A SUPPORTING MEMORANDUM.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND THE ENTIRE RECORD, THE AUTHORITY ADOPTS THE JUDGE'S
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINTS IN CASE NOS. 1-CA-16 AND
1-CA-103 BE, AND THEY HEREBY ARE, DISMISSED.
ISSUED, WASHINGTON, D.C., MARCH 26, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
COLONEL NICHOLAS J. ANGELIDES
FOR THE RESPONDENT
PAUL E. STANZLER, ESQUIRE
FOR THE GENERAL COUNSEL
BEFORE: LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS CASE AROSE AS AN UNFAIR LABOR PRACTICE PROCEEDING UNDER THE
PROVISIONS OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 92
STAT. 1191, 5 U.S.C. SEC. 7101, ET SEQ., (HEREINAFTER CALLED "THE
STATUTE") AND THE RULES AND REGULATIONS ISSUED THEREUNDER.
ON FEBRUARY 20, 1980 AN UNFAIR LABOR PRACTICE COMPLAINT WAS FILED BY
THE REGIONAL DIRECTOR, FIRST REGION, FEDERAL LABOR RELATIONS AUTHORITY,
BOSTON, MASSACHUSETTS, AGAINST THE DIVISION OF MILITARY AFFAIRS, STATE
OF NEW YORK, ALBANY, NEW YORK (RESPONDENT), ON BEHALF OF THE NEW YORK
COUNCIL OF ASSOCIATION OF CIVILIAN TECHNICIANS, INC., (UNION OR ACT),
THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ALL NEW YORK ARMY AND AIR
NATIONAL GUARD TECHNICIANS, EXCLUDING ALL SUPERVISORS, MANAGEMENT
OFFICIALS AND TECHNICIANS ENGAGED IN NON-CLERICAL PERSONNEL WORK. THE
CONSOLIDATED COMPLAINT ALLEGED THAT THE RESPONDENT VIOLATED SECTIONS
7116(A)(1) AND (5) OF THE STATUTE. /1/ THE ALLEGED VIOLATIONS IN CASE
NO. 1-CA-16 WERE BASED UPON ALLEGATIONS THAT FROM ON OR ABOUT FEBRUARY
21, 1979, THE RESPONDENT FAILED TO NEGOTIATE WITH THE UNION CONCERNING
THE IMPACT AND IMPLEMENTATION OF A CONGRESSIONALLY MANDATED PROGRAM
DESIGNED TO CONVERT CERTAIN NATIONAL GUARD TECHNICIAN POSITIONS INTO
FULL TIME MILITARY POSITIONS UNDER A CONVERSION TO FULL TIME MILITARY
(CFTM) TEST PROGRAM; /2/ THAT SINCE ON OR ABOUT FEBRUARY 23, 1979, THE
RESPONDENT REFUSED TO FURNISH, UPON REQUEST, CERTAIN NECESSARY AND
RELEVANT INFORMATION RELATING TO THE NUMBER OF POSITIONS SUBJECT TO THE
CFTM PROGRAM, AND THE LOCATION OF SUCH POSITIONS; AND THAT ON OR ABOUT
MARCH 14, 1979, THE RESPONDENT BYPASSED THE UNION AND BARGAINED DIRECTLY
AND INDIVIDUALLY WITH BARGAINING UNIT EMPLOYEES CONCERNING TERMS AND
CONDITIONS OF EMPLOYMENT BY DISSEMINATING DIRECTLY TO UNIT EMPLOYEES,
CERTAIN INFORMATION RELATING TO THE PROGRAM.
ALLEGED VIOLATIONS OF SECTION 7116(A)(1) AND (5) IN CASE NO.
1-CA-103 WERE BASED UPON ALLEGATIONS THAT THE RESPONDENT UNILATERALLY
DETERMINED, WITHOUT NOTIFYING AND BARGAINING WITH THE UNION, THAT A GS-5
TECHNICIAN IN ITS BROOKLYN, NEW YORK ARMORY "WAS AN ENTRY-LEVEL POSITION
AND THUS SUBJECT TO CONVERSION UNDER THE CFTM TEST PROGRAM."
COUNSEL FOR THE RESPONDENT ARGUES THAT THE RESPONDENT SATISFIED ITS
OBLIGATION TO BARGAIN CONCERNING THE IMPACT AND IMPLEMENTATION OF THE
PROGRAM; THAT THE RESPONDENT DID NOT UNLAWFULLY REFUSE TO PROVIDE TO
THE UNION, RELEVANT AND NECESSARY INFORMATION CONCERNING THE PROGRAM;
THAT RESPONDENT'S PUBLICATION OF INFORMATION RELATING TO THE PROGRAM AND
DISSEMINATION OF SUCH INFORMATION TO BARGAINING UNIT EMPLOYEES DID NOT
CONSTITUTE A BYPASS OF THE EXCLUSIVE REPRESENTATIVE OR DIRECT DEALING
WITH UNIT EMPLOYEES CONCERNING THE TERMS AND CONDITIONS OF EMPLOYMENT;
AND LASTLY THAT THE RESPONDENT DID NOT VIOLATE ITS OBLIGATION TO BARGAIN
BY UNILATERALLY DETERMINING THAT A GS-5 TECHNICIAN POSITION IN ITS
BROOKLYN, NEW YORK ARMORY, WAS AN ENTRY LEVEL POSITION, AND SUBJECT TO
CONVERSION UNDER THE CFTM TEST PROGRAM.
THE RESPONDENT AND THE GENERAL COUNSEL, FEDERAL LABOR RELATIONS
AUTHORITY, WERE REPRESENTED BY COUNSEL AND THE PARTIES WERE AFFORDED
FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, AND EXAMINE AND
CROSS-EXAMINE WITNESSES. POST-HEARING BRIEFS WERE RECEIVED FROM COUNSEL
REPRESENTING THE GENERAL COUNSEL AND COUNSEL REPRESENTING THE
RESPONDENT. THESE HAVE BEEN DULY CONSIDERED. BASED UPON THE ENTIRE
RECORD HEREIN, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR
DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE ADDUCED AT THE
HEARING, /3/ AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATIONS.
CASE NO. 1-CA-16
INITIAL NOTICE OF THE CFTM TEST PROGRAM AND THE MEETING OF FEBRUARY
21, 1979
ON FEBRUARY 13, 1979, COLONEL RICHARD BECK, RESPONDENT'S ASSISTANT
TECHNICIAN PERSONNEL OFFICER, TELEPHONED FREDERICK S. TEDESCO, STATE
CHAIRMAN OF ACT. /4/ COLONEL BECK OUTLINED THE KEY FEATURES OF THE CFTM
TEST PROGRAM FOR MR. TEDESCO. MR. TEDESCO RESPONDED BY ADVISING THAT HE
WOULD NEED TO HAVE SOMETHING IN WRITING, OR THAT A MEETING CONCERNING
THE SUBJECT WOULD BE NECESSARY. THEY AGREED TO MEET AND DISCUSS THE
PROGRAM.
COLONEL BECK'S FEBRUARY 13, 1979 TELEPHONE CALL WAS PRECEDED BY
RECEIPT, ON OR ABOUT FEBRUARY 8, 1979, OF AN ELECTRONIC MESSAGE (TWIX)
FROM THE NATIONAL GUARD BUREAU, WASHINGTON, D.C. (JT. EXH. 11). THE
MESSAGE, A NINE PAGE DOCUMENT, OUTLINED THE PROPOSED IMPLEMENTATION OF
THE CFTM TEST PROGRAM IN DETAIL. A COPY OF THE MESSAGE WAS TRANSMITTED
TO THE PRESIDENT OF THE ASSOCIATION OF CIVILIAN TECHNICIANS BY THE
NATIONAL GUARD BUREAU. THE MESSAGE INCLUDED THE CAVEAT THAT EXCLUSIVELY
RECOGNIZED UNIONS SHOULD BE ADVISED OF THE PROGRAM, AND FURTHER THAT
IMPACT AND IMPLEMENTATION BARGAINING OPPORTUNITIES SHOULD BE EXTENDED TO
SUCH UNIONS UNDER THE PROVISIONS OF SECTION 7106(B)(2) AND (3) OF THE
STATUTE.
THE MEETING REQUESTED BY MR. TEDESCO WAS HELD ON FEBRUARY 21, 1979.
THE UNION WAS REPRESENTED BY MR. TEDESCO, AND JOHN GIARRUSSO, NATIONAL
REPRESENTATIVE OF ACT. THE RESPONDENT WAS REPRESENTED BY COLONEL
CLARENCE C. WALLACE, RESPONDENT'S PERSONNEL OFFICER; AND COLONEL BECK.
AT THE MEETING THE UNION REPRESENTATIVES ACKNOWLEDGED RECEIPT OF A COPY
OF THE FEBRUARY 8, 1979 TWIX. COLONEL BECK OUTLINED THE ELEMENTS OF THE
PROPOSED IMPLEMENTATION OF THE CFTM TEST PROGRAM, AS THESE WERE SET OUT
IN THE TWIX, AND ADVISED UNION REPRESENTATIVES OF HIS OPINION THAT THE
TERMS AND CONDITIONS OF BARGAINING UNIT MEMBERS WOULD BE AFFECTED. /5/
WITH RESPECT TO THE PROPOSED IMPLEMENTATION OF THE PROGRAM, COLONEL BECK
INFORMED THE UNION THAT REPLACEMENTS FOR ALL ENTRY LEVEL POSITIONS WOULD
BE FILLED WITH MILITARY PERSONNEL; THAT ANY NEWLY AUTHORIZED POSITION
WOULD HAVE TO BE FILLED MILITARILY, WITH THE EXCEPTION THAT NON-MILITARY
PERSONNEL AFFECTED BY REDUCTIONS IN FORCE COULD QUALIFY FOR NEWLY
AUTHORIZED POSITIONS; THAT ANY OTHER POSITION WHICH COULD NOT BE FILLED
THROUGH A MERIT PROMOTION PLAN INCORPORATED INTO THE PARTIES' COLLECTIVE
BARGAINING AGREEMENT, WOULD HAVE TO BE FILLED MILITARILY; AND LASTLY
THAT NO NEW HIRINGS WOULD BE PERMITTED. /6/
DURING THE COURSE OF THE MEETING MR. TEDESCO DELIVERED TO THE
REPRESENTATIVES OF THE RESPONDENT, A LETTER DATED FEBRUARY 21, 1979,
ADDRESSED TO COLONEL WALLACE BY MR. TEDESCO (JT. EXH. 2). THE LETTER
REQUESTED THAT THE RESPONDENT ENGAGE IN IMPACT AND IMPLEMENTATION
BARGAINING BEFORE EFFECTUATING THE CFTM TEST PROGRAM; REQUESTED
"WRITTEN PROPOSALS" CONCERNING THE CFTM TEST PROGRAM; SOUGHT
INFORMATION CONCERNING "THE NUMBER OF POSITIONS AFFECTED," AND THE AREAS
WHEREIN SUCH "POSITIONS (WERE) LOCATED." /7/ MR. TEDESCO ALSO REQUESTED
THAT NEGOTIATIONS BE ARRANGED 15 DAYS "FOLLOWING RECEIPT OF YOUR WRITTEN
PROPOSALS BY ACT," AND THAT "MERIT PROMOTION AND UPWARD MOBILITY OF
ON-BOARD TECHNICIANS BE GIVEN FULL CONSIDERATION AT ALL TIMES." /8/
THE SUBJECTS RAISED IN THE LETTER DELIVERED TO THE RESPONDENT'S
REPRESENTATIVES WERE DISCUSSED IN DETAIL AT THE FEBRUARY 21, 1979
MEETING. RESPONDENT'S REPRESENTATIVES ADVISED THAT THE BRIEFING
PROVIDED, AND TWIX RECEIVED, REFLECTED THE ELEMENTS OF THE PLAN TO
IMPLEMENT THE PROGRAM, AND THAT THE UNION, NOT THE RESPONDENT, WOULD
HAVE TO SUPPLY APPROPRIATE PROPOSALS RELATING TO THE IMPACT AND
IMPLEMENTATION OF THE PROGRAM, IN ORDER TO PROCEED WITH NEGOTIATIONS.
(TR. 72, 77, 166). WITH RESPECT TO MERIT PROMOTION, COLONEL BECK
ADVISED THAT THE MERIT PROMOTION PLAN AND UPWARD MOBILITY OF TECHNICIANS
WOULD NOT BE DISTURBED. HE INFORMED THAT THE NUMBER OF POSITIONS WHICH
WOULD BE CONVERTED IN NEW YORK STATE WAS NOT THEN IN EXISTENCE THAT NO
SPECIFIC QUOTA OR NUMBER OF POSITIONS HAD BEEN ALLOCATED TO THE
RESPONDENT BY THE NATIONAL GUARD BUREAU FOR CONVERSION, AND THAT IT WAS
THEN IMPOSSIBLE TO ASCERTAIN THE GEOGRAPHIC LOCATION OF FUTURE
CONVERSIONS BECAUSE SPECIFIC VACANCIES WERE NOT THEN KNOWN TO THE
RESPONDENT.
IT WAS ESTABLISHED THAT THE RESPONDENT, AS OF FEBRUARY 21, 1979,
COULD NOT HAVE BEEN AWARE OF DETAILS OF INFORMATION RELATING TO THE
NUMBER OF PROSPECTIVE CONVERSIONS WHICH MIGHT BE GENERATED BY
RESIGNATIONS, TERMINATIONS, OR NEWLY CREATED JOB OPENINGS, AS SUCH
INFORMATION WAS NOT THEN IN EXISTENCE. MANAGEMENT DID HAVE INFORMATION
AVAILABLE AS TO CERTAIN EXISTING VACANCIES AT THE TIME OF THE MEETING,
BUT DID NOT KNOW WHICH POSITIONS WOULD BE LEFT UNFILLED, AND DID NOT
KNOW THE POTENTIAL EFFECT OF THE APPLICATION OF MERIT PROMOTION
PROCEDURES TO THE FILLING OF VACANT NON-ENTRY LEVEL POSITIONS.
THE UNION MADE NO FURTHER REQUESTS FOR INFORMATION AFTER THE
EXPLANATION OUTLINED, NOR WAS THE ORIGINAL REQUEST MODIFIED IN ANY WAY.
THE UNION TOOK THE POSITION THAT THE CFTM TEST PROGRAM COULD NOT BE
IMPLEMENTED IN THE ABSENCE OF AGREEMENT (TR. 166).
ALTHOUGH COUNSEL FOR THE GENERAL COUNSEL ARGUES THAT THERE WAS A
REFUSAL TO BARGAIN AT THE FEBRUARY 21ST MEETING, CAREFUL CONSIDERATION
OF THE EVIDENCE RELATING TO THE ALLEGED REFUSAL, TOGETHER WITH THE
TESTIMONY OF COLONEL BECK, CONVINCINGLY SHOWS THAT RESPONDENT MERELY
REFUSED TO BARGAIN CONCERNING THE DECISION TO INITIATE THE CFTM TEST
PROGRAM, AND NOT CONCERNING THE IMPACT AND IMPLEMENTATION OF THE
PROGRAM.
CORRESPONDENCE FOLLOWING FEBRUARY 21, 1979 MEETING AND EFFECTUATION
OF CFTM TEST PROGRAM
ON FEBRUARY 23, 1979, COLONEL WALLACE WROTE TO MR. TEDESCO AND
FORMALLY APPRISED HIM THAT HIS REQUEST FOR NEGOTIATIONS AND DEMAND FOR
PROPOSALS, AS ARTICULATED IN THE LETTER DATED FEBRUARY 21, 1979, AND
"WAS APPROPRIATE" (JT. EXH. 3). ON MARCH 3, 1979, MR. TEDESCO
RESPONDED BY MAILGRAM AND DEMANDED THAT THE RESPONDENT STATE WHETHER OR
NOT RESPONDENT WAS REFUSING TO NEGOTIATE CONCERNING THE IMPACT AND
IMPLEMENTATION OF THE CFTM TEST PROGRAM. HE DEMANDED A "RETURN TO THE
TABLE TO RECEIVE (RESPONDENT'S) PROPOSALS" RELATIVE TO THE PROGRAM (JT.
EXH. 4).
ON MARCH 5, 1979, THE RESPONDENT MILITARILY FILLED THE FIRST
TECHNICIAN POSITION IN ACCORDANCE WITH PROGRAM GUIDELINES OUTLINED.
THIS POSITION WAS SUPERVISORY IN NATURE AND WAS NOT INCLUDED WITHIN THE
UNIT OF RECOGNITION. /9/ ON MARCH 7, 1979, THE FIRST BARGAINING UNIT
POSITION WAS CONVERTED AS A RESULT OF AN UNSUCCESSFUL PRIOR EFFORT TO
FILL THE POSITION THROUGH MERIT PROMOTION PROCEDURES. /10/ THE UNION
WAS MADE AWARE OF THE VACANCY AS THE ANNOUNCEMENT CONCERNING THE
POSITION HAD BEEN DISTRIBUTED TO THE STATE CHAIRMAN SOME SIX TO EIGHT
WEEKS PRIOR TO CONVERSION UNDER THE PROGRAM.
IT WAS DISCLOSED THAT THE UNION REGULARLY RECEIVED VACANCY
ANNOUNCEMENTS ISSUED UNDER THE PROVISIONS OF THE MERIT PROMOTION PLAN
INCORPORATED INTO THE COLLECTIVE BARGAINING AGREEMENT GOVERNING THE
LABOR RELATIONS OF THE PARTIES. /11/ THE UNION RECEIVED SUCH
ANNOUNCEMENTS A DAY OR TWO BEFORE POSTING, AND SIX TO EIGHT WEEKS BEFORE
THE FILLING OF THE POSITION, OR DETERMINATION THAT THE POSITION COULD
NOT BE FILLED. THUS, THE UNION WOULD HAVE BEEN AWARE OF POSSIBLE
CONVERSIONS RESULTING FROM A FAILURE TO FILL SUCH POSITIONS THROUGH USE
OF THE MERIT PROMOTION PLAN IN EFFECT. RESPONDENT'S REPRESENTATIVES
REGULARLY RESPONDED TO UNION INQUIRIES CONCERNING SUCH CONVERSIONS.
ON MARCH 8, 1979, COLONEL WALLACE RESPONDED TO THE MARCH 3, 1979
MAILGRAM (JT, EXH. 5). HE ADVISED THAT THE RESPONDENT HAD ADOPTED THE
PROCEDURES SET OUT IN THE FEBRUARY 8, 1979 TWIX FROM THE NATIONAL GUARD
BUREAU. THE LETTER CLOSED WITH THE FOLLOWING PARAGRAPH:
CONSEQUENTLY, SINCE WE HAVE NOT CHANGED PAST PRACTICE OR INITIATED
ANY CHANGE OR A
UNILATERAL BASIS BEYOND THAT REQUIRED BY THE CONGRESSIONAL MANDATE,
WE CONSIDER THAT YOUR
REQUEST TO BE INFORMED ABOUT A DECISION OF NON-NEGOTIABILITY IS
INAPPLICABLE. ESSENTIALLY, WE
HAVE NOT TAKEN NEW INITIATIVES WHICH ARE APPROPRIATE FOR
NEGOTIATIONS. IF YOU DISAGREE WE
REQUEST SPECIFIC ALLEGATIONS OF FACT.
THE RESPONDENT SUBSEQUENTLY DISSEMINATED A MEMORANDUM RELATING TO THE
PROGRAM TO ALL TECHNICIANS IN THE NEW YORK ARMY NATIONAL GUARD (JT. EXH.
6). THE MEMORANDUM, DATED MARCH 14, 1979, AND CAPTIONED "TECHNICIAN
TOPIC 79-3-(SPECIAL ISSUE - CFTM)," SET FORTH DETAILS RELATING TO THE
CFTM TEST PROGRAM. THE MEMORANDUM WAS ISSUED TO DISPEL FALSE AND
MISLEADING RUMORS REGARDING THE NATURE OF THE CFTM TEST PROGRAM
IMPLEMENTED BY EXPLAINING THE NATURE OF THE PROGRAM. INFORMATION
REFLECTED IN THE MEMORANDUM, SET OUT IN A SERIES OF FACTUAL STATEMENTS,
WAS DERIVED PRIMARILY FROM THE FEBRUARY 8, 1979 TWIX, AND THE FEDERAL
PERSONNEL MANUAL. OTHER INFORMATION REFLECTED STATEMENTS OF
LONG-STANDING EXISTING PERSONNEL POLICIES AND PRACTICES ALREADY IN PLACE
AT THAT TIME.
THE UNION DID NOT TRANSMIT IMPACT AND IMPLEMENTATION BARGAINING
PROPOSALS CONCERNING THE PROGRAM UNTIL MAY 15, 1979. ON THIS DATE MR.
TEDESCO FORWARDED TO COLONEL WALLACE A SERIES OF EIGHT SPECIFIC
PROPOSALS CHARACTERIZED AS RELATING TO THE IMPACT OF THE CFTM TEST
PROGRAM ON BARGAINING UNIT MEMBERS (JT. EXH. 7). BETWEEN MAY 15, 1979
AND JUNE 5, 1979, COLONEL BECK PHONED MR. TEDESCO TO REQUEST
CLARIFICATION OF THE PROPOSALS, AS THEY DID NOT, AS PHRASED, APPEAR TO
COLONEL BECK TO RELATE TO THE IMPACT AND IMPLEMENTATION OF THE CFTM TEST
PROGRAM. MR. TEDESCO REPLIED, "YOU HAVE THE PROPOSALS, YOU DEAL WITH
THOSE PROPOSALS, RESPOND TO THOSE PROPOSALS," AND ADVISED THAT COLONEL
BECK WOULD HAVE TO DEAL WITH THE PROPOSALS AS THEY WERE (TR. 86,
155-156). /12/
ON JUNE 5, 1979, COLONEL WALLACE FORMALLY RESPONDED TO THE MAY 15,
1979 PROPOSALS (JT. EXH. 9). THE LETTER REQUESTED A MEETING "TO DISCUSS
PROPOSALS APPROPRIATE FOR NEGOTIATION," AND SUGGESTED JUNE 13, 1979 AS A
MEETING DATE. COLONEL WALLACE EXPRESSED THE VIEW THAT PROPOSALS ONE,
TWO, THREE AND EIGHT WERE NON-NEGOTIABLE BECAUSE THEY INVOLVED RESERVED
MANAGEMENT RIGHTS WHICH RESPONDENT WOULD NOT SURRENDER; THAT PROPOSAL
FOUR WAS NOT NEGOTIABLE BECAUSE IT SOUGHT TO AMEND OR MODIFY REQUIRED
REDUCTION IN FORCE PROCEDURES; THAT PROPOSALS FIVE AND SIX SOUGHT TO
RESTATE FEDERAL LAW; AND THAT PROPOSAL SEVEN WAS INAPPROPRIATE BECAUSE
IT INVOLVED A MATTER THEN UNDER REVIEW BY THE FEDERAL LABOR RELATIONS
AUTHORITY. /13/
A MEETING WAS HELD ON JUNE 13, 1979. RESPONDENT'S REPRESENTATIVES
WERE ADVISED THAT THERE WAS NO ROOM FOR DISCUSSION AND THAT THE UNION
WOULD FILE A PETITION FOR A NEGOTIABILITY DETERMINATION CONCERNING
COLONEL WALLACE'S JUNE 5, 1979 LETTER. THE PETITION WAS FILED AND
THEREAFTER WITHDRAWN BY THE UNION IN FAVOR OF PROSECUTION OF THE UNFAIR
LABOR PRACTICE CHARGES MADE THE SUBJECT OF A CONSOLIDATED COMPLAINT IN
THIS CASE.
INFORMATION SUPPLIED TO UNION UPON RECEIPT
IN JUNE OR JULY OF 1979 THE CFTM TEST PROGRAM WAS TEMPORARILY HALTED,
AND CONVERSIONS TO FULL TIME MILITARY WERE NOT ALLOWED. ON OR ABOUT
OCTOBER 1, 1979, THE START OF FISCAL YEAR 1980, THE PROGRAM WAS
REACTIVATED. AT THIS TIME, THE NATIONAL GUARD BUREAU INFORMED THE
RESPONDENT CONCERNING THE NUMBER OF POSITIONS WHICH RESPONDENT WOULD BE
PERMITTED TO CONVERT. THE QUOTA SUPPLIED, 143 POSITIONS, INCLUDED
POSITIONS PREVIOUSLY CONVERTED IN FISCAL YEAR 1979. UPON RECEIPT OF
THIS INFORMATION COLONEL BECK APPRISED THE UNION OF THE NUMBER OF
POSITIONS REMAINING OVER THE TOTAL CONVERTED IN FISCAL YEAR 1979, AND
IDENTIFIED THIS FIGURE AS THE NUMBER WHICH COULD THEREAFTER BE CONVERTED
IN FISCAL YEAR 1980. /14/ HOWEVER, BECAUSE INFORMATION CONCERNING THE
GEOGRAPHIC LOCATION OF FUTURE CONVERSIONS DID NOT EXIST, SUCH
INFORMATION WAS NOT SUPPLIED TO THE UNION.
ON MARCH 6, 1980, COLONEL WALLACE WROTE TO MR. TEDESCO TO ADVISE HIM
THAT 129 INDIVIDUALS HAD BEEN PLACED IN THE NEW YORK ARMY NATIONAL GUARD
AS A RESULT OF THE CFTM TEST PROGRAM (G.C. EXH. 10); ALTHOUGH NO OTHER
SIMILAR COMMUNICATIONS WERE PROVIDED TO THE UNION, THE UNION DID, PRIOR
TO THE LETTER, RECEIVE COMMUNICATIONS BY PHONE RELATIVE TO POSITIONS
CONVERTED.
CASE NO. 1-CA-103
IN MARCH OF 1979 COLONEL BECK BECAME AWARE OF A REQUEST TO FILL A
GS-5 ADMINISTRATIVE SUPPLY TECHNICIAN VACANCY AT THE BROOKLYN, NEW YORK
ARMORY (G.C. EXH. 13). THE POSITION WAS CLASSIFIED AS ENTRY LEVEL BY
THE RESPONDENT. THIS CLASSIFICATION HAD THE EFFECT OF PRECLUDING THE
FILLING OF THE POSITION EXCEPT UNDER THE CFTM TEST PROGRAM. UNDER THE
TERMS OF THE PROGRAM, ENTRY LEVEL POSITIONS THROUGHOUT THE STATE, THAT
BECAME VACANT FOR WHATEVER REASON, WERE SUBJECT TO CONVERSION UNDER THE
PROGRAM AS THE ONLY MEANS OF FILLING SUCH POSITIONS (JOINT EXHIBIT 11 AT
PAGE 9, TR. 124, 136-137). IN SUCH CASES COLONEL BECK WAS REQUIRED TO
DETERMINE WHETHER OR NOT CONVERSION WOULD BE EFFECTUATED. /15/
A FEW DAYS PRIOR TO MARCH 20, 1979, COLONEL BECK DECIDED TO CONVERT
THE GS-5 ADMINISTRATIVE SUPPLY TECHNICIAN POSITION TO FULL-TIME
MILITARY. /16/ COUNSEL FOR THE GENERAL COUNSEL ARGUED THAT THIS
POSITION WAS NOT ENTRY LEVEL, THAT IT SHOULD HAVE BEEN ADVERTISED UNDER
THE MERIT PROMOTION PLAN, AND THAT THERE WAS A GS-4 DATA TRANSCRIBER IN
THE NEW YORK CITY AREA WHO COULD HAVE BID ON THE GS-5 POSITION HAD THE
VACANCY BEEN PROCESSED UNDER THE MERIT PROMOTION PLAN;
THE RESPONDENT ADMINISTRATIVELY DEFINED AN "ENTRY LEVEL" POSITION AS
"THE LOWEST POSITION WITHIN A PARTICULAR OCCUPATIONAL SERIES OR
OCCUPATIONAL CODE FOR WHICH THE MINIMAL REQUIREMENTS ARE MANDATED" (TR.
116-117). THE DETERMINATION WAS BASED UPON RESPONDENT'S PAST POLICY
REGARDING THE SUBJECT, AND THE PROVISIONS OF THE MERIT PROMOTION PLAN.
SECTION 1 OF ARTICLE 14 OF THE COLLECTIVE BARGAINING AGREEMENT
PROVIDES:
ALL PROMOTIONS WILL BE MADE IN ACCORDANCE WITH THE AGENCY MERIT
PROMOTION PLAN. NO CHANGES
WILL BE MADE BY THE EMPLOYER TO ANY PROVISIONS OF THE PLAN WHICH
AFFECT TECHNICIANS IN THE
UNIT WITHOUT FIRST CONSULTING WITH THE UNION. THE EMPLOYER AND THE
UNION AGREE THAT THE
PURPOSE OF THE PROMOTION PLAN IS TO ENSURE THAT TECHNICIANS ARE GIVEN
FULL AND FAIR
CONSIDERATION FOR ADVANCEMENT AND THAT SELECTIONS ARE MADE AMONG THE
BEST QUALIFIED CANDIDATES
(R. EXH. 3).
THE AGREEMENT ALSO CONTAINS ARBITRATION PROVISIONS WHICH OPERATE TO
INCLUDE DISAGREEMENTS CONCERNING THE INTERPRETATION OR APPLICATION OF
THE AGREEMENT. THESE PROVISIONS ENCOMPASS DISPUTES CONCERNING THE
INTERPRETATION AND APPLICATION OF THE MERIT PROMOTION PLAN. /17/ THE
MERIT PROMOTION PLAN IN EFFECT DURING RELEVANT PERIODS HEREIN PROVIDED
IN PART:
3. POLICY -
. . . .
D. ALL VACANCIES, GS-06/WG-06 AND ABOVE WILL BE ADVERTISED BY THE
TECHNICIAN PERSONNEL
OFFICE AS SPECIFIED IN APPENDIX "A." ADDITIONALLY, VACANCIES FOR
GS-05 POSITIONS IN
HEADQUARTERS NEW YORK ARMY NATIONAL GUARD AND IN THE UNITED STATES
PROPERTY AND FISCAL OFFICE
WILL BE ADVERTISED. . . . VACANCY ANNOUNCEMENTS WILL BE PLACED ON
EACH ORGANIZATION OR
INSTALLATION BULLETIN BOARD WHERE INFORMATION OF INTEREST TO ALL
MEMBERS IS CUSTOMARILY
DISPLAYED. (R. EXH. 7).
ON THE BASIS OF THE MERIT PROMOTION PLAN, PARTICULARLY SECTION 3(D)
QUOTED ABOVE, THE RESPONDENT CONCLUDED THAT THE PROVISIONS OF THE PLAN
WERE INAPPLICABLE TO THE GS-5 ADMINISTRATIVE SUPPLY TECHNICIAN POSITION
VACANCY AT THE BROOKLYN, NEW YORK ARMORY. THAT IS, IT WAS CLASSIFIED AS
ENTRY LEVEL AND WAS NOT OTHERWISE DEEMED SUBJECT TO THE MERIT PROMOTION
PLAN. IT WAS NOT A GS-5 POSITION IN HEADQUARTERS NEW YORK ARMY NATIONAL
GUARD, NOR ONE IN THE UNITED STATES PROPERTY AND FISCAL OFFICE. THE
PLAN WAS CONSIDERED AS NOT BEING APPLICABLE TO GS-5 POSITIONS OTHER THAN
THOSE SPECIFICALLY DESCRIBED IN SECTION 3(D) (TR. 156-158).
DISCUSSION AND CONCLUSIONS
CASE NO. 1-CA-16
BARGAINING OBLIGATION CONCERNING IMPACT AND IMPLEMENTATION OF THE
PROGRAM
UNDER THE PROVISIONS OF SECTION 7106(A)(2)(A) OF THE STATUTE,
MANAGEMENT OFFICIALS HAVE THE RIGHT "TO HIRE, ASSIGN, DIRECT," AND TAKE
CERTAIN OTHER SPECIFIED PERSONNEL ACTIONS. SECTION 7106(A)(2)(B)
PROVIDES THAT MANAGEMENT HAS THE RIGHT "TO DETERMINE THE PERSONNEL BY
WHICH AGENCY OPERATIONS SHALL BE CONDUCTED." HOWEVER, UNDER THE
PROVISIONS OF SECTION 7106(B)(2) AND (3) OF THE STATUTE, BARGAINING IS
MANDATORY ON PROCEDURES DESIGNED FOR EXERCISING SUCH RIGHTS, AND ON
ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED, THAT IS, ON THE IMPACT
AND IMPLEMENTATION OF SUCH MANAGEMENT DECISIONS. THE RULE IS SUBJECT TO
THE PROVISO THAT NEGOTIATIONS ON PROCEDURES AND IMPACT MAY NOT OPERATE
TO PREVENT MANAGEMENT FROM EXERCISING MANAGEMENT RIGHTS. IN THIS CASE
THE RESPONDENT ACKNOWLEDGES SUCH A BARGAINING OBLIGATION. /18/ IN ORDER
TO MEET THIS OBLIGATION MANAGEMENT HAS THE DUTY TO GIVE THE EXCLUSIVE
BARGAINING REPRESENTATIVE ADEQUATE ADVANCE NOTICE OF THE PROPOSED
IMPLEMENTATION OF DECISIONS AND PROVIDE THE UNION WITH AN OPPORTUNITY TO
PARTICIPATE IN IMPACT AND IMPLEMENTATION BARGAINING. DEPARTMENT OF THE
TREASURY, U.S. CUSTOMS SERVICE, REGION 1, BOSTON, MASSACHUSETTS, 1 FLRA
NO. 49 (JUNE 6, 1979); INTERNAL REVENUE SERVICE, WASHINGTON, D.C., 1
FLRA NO. 91 (JULY 31, 1979); NATIONAL SCIENCE FOUNDATION, 1 FLRA NO.
116 (SEPTEMBER 24, 1979).
HERE THE RECORD CLEARLY ESTABLISHES THAT THE UNION RECEIVED NOTICE OF
DETAILS OF THE PROGRAM ON THREE DIFFERENT OCCASIONS. A COPY OF THE
FEBRUARY 8, 1979 TWIX WAS ADDRESSED TO THE UNION. THE TWIX REPRESENTED
COMPLETE DOCUMENTATION OF AVAILABLE DETAILS OF THE CFTM TEST PROGRAM,
AND WAS CONSIDERED AN ADEQUATE BASIS FOR FUTURE IMPLEMENTATION. DURING
THE FEBRUARY 13, 1979, TELEPHONE CONVERSATION THE PROGRAM WAS OUTLINED
FOR MR. TEDESCO BY COLONEL BECK, AND LASTLY, THE PROGRAM WAS EXPLAINED
IN DETAIL BY COLONEL BECK DURING THE FEBRUARY 21, 1979 MEETING WITH
UNION OFFICIALS.
THE FIRST TECHNICIAN POSITION CONVERSION UNDER THE PROGRAM DID NOT
OCCUR UNTIL MARCH 7, 1979, APPROXIMATELY TWO WEEKS AFTER THE FEBRUARY
21, 1979 MEETING. ALTHOUGH THE UNION DID INTERPOSE A REQUEST TO BARGAIN
ON FEBRUARY 21, 1979, THE REQUEST INCORPORATED A DEMAND FOR WRITTEN
PROPOSALS FROM THE RESPONDENT. BECAUSE THE RESPONDENT'S PROPOSALS HAD
PREVIOUSLY BEEN SUPPLIED TO THE UNION IN THE FORM OF THE FEBRUARY 8,
1979 TWIX, AND ORALLY ON FEBRUARY 21, 1979, THE UNION WAS APPRISED THAT
THE UNION HAD THE OBLIGATION TO MAKE PROPOSALS IF CHANGES WERE DESIRED.
THIS SPECIFIC REQUEST FOR UNION PROPOSALS WAS MET WITH A REPETITION OF A
DEMAND FOR MANAGEMENT PROPOSALS. THERE WAS NO SPECIFIC CRITICISM OF THE
PROPOSALS WHICH MANAGEMENT HAD PROVIDED, NOR WAS THERE ANY SHOWING THAT
THE PROPOSALS ARTICULATED ORALLY, AND IN THE FEBRUARY 8, 1979 TWIX WERE
UNCLEAR OR OTHERWISE INADEQUATE.
COLONEL WALLACE'S FEBRUARY 23, 1979 LETTER SERVED TO INFORM THE UNION
FURTHER OF THE NATURE OF THE INAPPROPRIATENESS OF THE UNION'S RESPONSE
TO THE RESPONDEN'TS PRESENTATION OF THE PROPOSED CFTM TEST PROGRAM. THE
FEBRUARY 23, 1979 LETTER, IN THE LIGHT OF EVENTS WHICH OCCURRED ON
FEBRUARY 21, 1979, MAY BE CONSTRUED AS A REITERATION OF THE POSITION
TAKEN BY THE RESPONDENT ON FEBRUARY 21, 1979. IN EFFECT, IT INFORMED
THAT THE UNION'S REQUEST FOR BARGAINING PROPOSALS, WAS INAPPROPRIATE.
ALTHOUGH, IT WOULD HAVE BEEN HELPFUL HAD THE RESPONDENT REITERATED IN
DETAIL THE POSITION TAKEN BY THE RESPONDENT AT THE FEBRUARY 21, 1979
MEETING, IT IS CLEAR THAT THE TEXT OF THE LETTER, WHEN READ IN THE LIGHT
OF EVENTS WHICH OCCURRED ON FEBRUARY 21, 1979, REFLECTS RESPONDENT'S
REASSERTION OF THE FEBRUARY 21, 1979 POSITION. NEVERTHELESS, THE UNION
ON MARCH 3, 1979, CONTINUED TO DEMAND PROPOSALS FROM THE RESPONDENT.
THEREAFTER, ON MARCH 7, 1979, IMPLEMENTATION OCCURRED.
ALTHOUGH PROVIDED WITH THE OPPORTUNITY TO BARGAIN ON IMPACT AND
IMPLEMENTATION, THE UNION ELECTED NOT TO BARGAIN, IN FAVOR OF A DEMAND
FOR WRITTEN MANAGEMENT PROPOSALS CONCERNING THE CFTM PROGRAM, AND IN
FAVOR OF INSISTENCE THAT IMPLEMENTATION NOT OCCUR IN THE ABSENCE OF
AGREEMENT. THIS DEMAND WAS MADE DESPITE THE RESPONDENT'S INSISTENCE
THAT THE UNION SHOULD MAKE KNOWN SPECIFIC PROPOSALS IN ORDER FOR THE
UNION TO TAKE ADVANTAGE OF THE BARGAINING OPPORTUNITY EXTENDED. THIS
WAS THE UNION'S CHOICE; HOWEVER, IT DID NOT OPERATE TO NEGATE OR
ATTENUATE RESPONDENT'S OFFER TO BARGAIN. IT WAS, INSTEAD, TANTAMOUNT TO
A REFUSAL TO BARGAIN CONCERNING IMPACT AND IMPLEMENTATION. INTERNAL
REVENUE SERVICE, WASHINGTON, D.C., SUPRA; DEPARTMENT OF THE NAVY,
NORFOLK NAVAL SHIPYARD, PORTSMOUTH, VIRGINIA, A/SLMR NO. 1065 (JUNE 21,
1978). UNDER THE CIRCUMSTANCES IT WOULD HAVE BEEN REASONABLE FOR THE
RESPONDENT TO HAVE ASSUMED THAT THE UNION HAD DECIDED NOT TO SUBMIT
PROPOSALS. THE EXCLUSIVE BARGAINING REPRESENTATIVE MAY NOT IGNORE A
MANAGEMENT REQUEST FOR SPECIFIC PROPOSALS, AWAIT IMPLEMENTATION OF THE
PROPOSED ACTION, THEREAFTER SUBMIT BARGAINING PROPOSALS, AND THEN
ENDEAVOR TO PERFECT ITS REQUEST TO NEGOTIATE ON IMPACT AND
IMPLEMENTATION. INTERNAL REVENUE SERVICE AND INTERNAL REVENUE SERVICE
RICHMOND DISTRICT OFFICE, 2 FLRA NO. 43 (DECEMBER 31, 1979).
THE UNION HAD AN OBLIGATION TO EITHER RESPOND WITH APPROPRIATE
PROPOSALS, REQUEST ADDITIONAL INFORMATION, OR REQUEST ADDITIONAL TIME IN
WHICH TO PREPARE TO SUBMIT A UNION POSITION ON IMPACT AND
IMPLEMENTATION. HERE, THERE WAS NO REASON TO BELIEVE THAT THE UNION
INTENDED TO PURSUE ANY OF THESE APPROACHES. INSTEAD, IT WAS CLEAR THAT
THE UNION DID NOT INTEND TO SUBMIT A POSITION ON THE ISSUES. THUS THE
FACTS PRESENTED INDICATE THAT THE RESPONDENT MET ITS STATUTORY
OBLIGATION TO GIVE TIMELY NOTICE CONCERNING THE CFTM TEST PROGRAM, AND
THE OPPORTUNITY TO BARGAIN, BUT THAT THE UNION RESPONSE EFFECTIVELY
PRECLUDED THE CONSUMMATION OF IMPACT AND IMPLEMENTATION BARGAINING.
SUBSEQUENT IMPLEMENTATION AFTER A TWO WEEK INTERVAL MAY NOT BE
CONSIDERED AN UNFAIR LABOR PRACTICE, AS THE FACTS INDICATE THAT THE
RESPONDENT MET ITS STATUTORY OBLIGATION TO BARGAIN. /19/
THE UNION'S REQUEST FOR INFORMATION
WITH RESPECT TO THE ALLEGED FAILURE OF RESPONDENT TO FURNISH
NECESSARY AND RELEVANT INFORMATION, IT IS NOTED THAT AN UNFAIR LABOR
PRACTICE MAY NOT BE BASED UPON A DENIAL OF ACCESS TO NON-EXISTENT DATA.
INTERNAL REVENUE SERVICE AND BROOKLYN DISTRICT OFFICE, IRS, 1 FLRA NO.
89 (JULY 31, 1979); VETERANS ADMINISTRATION HOSPITAL, LEXINGTON,
KENTUCKY, AND VETERANS ADMINISTRATION CENTRAL OFFICE, WASHINGTON, D.C.,
3 FLRA NO. 126 (JULY 31, 1980). THE COMPLAINT ALLEGES THAT SINCE ON OR
ABOUT FEBRUARY 23, 1979, THE UNION HAS REQUESTED THE RESPONDENT TO
FURNISH INFORMATION "RELATING TO THE NUMBER OF AND LOCATION OF CFTM
POSITIONS AND RELATED MATTERS." THE RECORD IS CLEAR THAT AT THE FEBRUARY
21, 1979 MEETING THE UNION REQUESTED THE RESPONDENT TO SUPPLY, AS SOON
AS POSSIBLE, INFORMATION RELATING TO THE NUMBER OF POSITIONS AFFECTED BY
THE CFTM TEST PROGRAM, AND THE AREAS WHEREIN SUCH POSITIONS WERE
LOCATED. INFORMATION OF THE TYPE SOUGHT WAS NOT THEN IN EXISTENCE, AND
IT WAS ESTABLISHED THAT THE PRODUCTION OF SUCH INFORMATION WAS DEPENDENT
UPON FUTURE FACTORS NOT UNDER THE CONTROL OF THE RESPONDENT. SINCE THE
INFORMATION REQUESTED BY THE UNION WAS NOT THEN IN EXISTENCE, A
VIOLATION OF SECTION 7116 MAY NOT BE BASED ON FAILURE TO SUPPLY SUCH
INFORMATION. /20/
THE ALLEGED BYPASS OF THE UNION
THE FEDERAL LABOR RELATIONS COUNCIL IN CONSIDERING A CASE ARISING
UNDER EXECUTIVE ORDER 11491, AS AMENDED, DEPARTMENT OF THE NAVY, NAVAL
AIR STATION, FALLON, NEVADA, A/SLMR NO. 432, FLRC NO. 74A-80, 3 FLRC 697
(1975) HELD THAT THE FOLLOWING CRITERIA SHOULD BE USED IN DETERMINING
WHETHER A COMMUNICATION AMOUNTS TO AN ATTEMPT TO BYPASS THE EXCLUSIVE
REPRESENTATIVE:
IN DETERMINING WHETHER A COMMUNICATION IS VIOLATIVE OF THE ORDER, IT
MUST BE JUDGED
INDEPENDENTLY AND A DETERMINATION MADE AS TO WHETHER THAT
COMMUNICATION CONSTITUTES, FOR
EXAMPLE, AN ATTEMPT BY AGENCY MANAGEMENT TO DEAL OR NEGOTIATE
DIRECTLY WITH UNIT EMPLOYEES OR
TO THREATEN OR PROMISE BENEFITS TO EMPLOYEES. IN REACHING THIS
DETERMINATION, BOTH THE
CONTENT OF THE COMMUNICATION AND THE CIRCUMSTANCES SURROUNDING IT
MUST BE CONSIDERED. MORE
SPECIFICALLY, ALL COMMUNICATIONS BETWEEN AGENCY MANAGEMENT AND UNIT
EMPLOYEES OVER MATTERS
RELATING TO THE COLLECTIVE BARGAINING RELATIONSHIP ARE NOT VIOLATIVE.
RATHER COMMUNICATIONS
WHICH, FOR EXAMPLE, AMOUNT TO AN ATTEMPT TO BYPASS THE EXCLUSIVE
REPRESENTATIVE AND BARGAIN
DIRECTLY WITH EMPLOYEES, OR WHICH URGE EMPLOYEES TO PUT PRESSURE ON
THE REPRESENTATIVE TO TAKE
A CERTAIN COURSE OF ACTION, OR WHICH THREATEN OR PROMISE BENEFITS TO
EMPLOYEES ARE VIOLATIVE
OF THE ORDER.
THE MARCH 14, 1979 TECHNICIAN TOPIC MEMORANDUM DISTRIBUTED TO
BARGAINING UNIT EMPLOYEES WAS BASED UPON INFORMATION DISCLOSED TO THE
UNION IN THE FEBRUARY 8, 1979, TWIX, AND LONG-STANDING PERSONNEL
POLICIES AND PRACTICES. IT MAY NOT BE USED AS A BASIS FOR AN UNFAIR
LABOR PRACTICE BECAUSE IT INVOLVED NO ATTEMPT BY THE RESPONDENT TO
BYPASS THE EXCLUSIVE BARGAINING REPRESENTATIVE AND DEAL DIRECTLY WITH
EMPLOYEES; DID NOT OTHERWISE THREATEN OR PROMISE BENEFIT TO EMPLOYEES;
AND DID NOT UNDERMINE THE STATUS OF THE EXCLUSIVE REPRESENTATIVE. SEE
ALSO DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, ST. LOUIS
DISTRICT OFFICE, ST; LOUIS, MISSOURI, A/SLMR NO. 961 (JANUARY 6, 1978).
AS NOTED THE UNION WAS, AS OF FEBRUARY 21, 1979, PROVIDED WITH THE
OPPORTUNITY TO BARGAIN CONCERNING THE ISSUES RAISED IN THE CFTM TEST
PROGRAM, BUT REFUSED TO RESPOND WITH BARGAINING PROPOSALS. THE
MEMORANDUM IN QUESTION WAS MERELY A SEGMENT OF RESPONDENT'S
IMPLEMENTATION OF THE CFTM TEST PROGRAM. /21/
CASE NO. 1-CA-103
IT IS WELL SETTLED THAT ALLEGED VIOLATIONS OF A NEGOTIATED AGREEMENT
WHICH CONCERN DIFFERING AND ARGUABLE INTERPRETATIONS OF SUCH AGREEMENT,
AS DISTINGUISHED FROM ALLEGED ACTIONS WHICH CONSTITUTE CLEAR, UNILATERAL
BREACHES OF THE AGREEMENT, ARE NOT DEEMED TO BE VIOLATIVE OF THE
STATUTE. IN SUCH CASES THE AGGRIEVED PARTY'S REMEDY LIES WITHIN THE
GRIEVANCE AND ARBITRATION PROCEDURES IN THE NEGOTIATED AGREEMENT RATHER
THAN THROUGH UNFAIR LABOR PRACTICE PROCEDURES. OKLAHOMA CITY AIR
LOGISTICS CENTER, TINKER AIR FORCE BASE, OKLAHOMA, 3 FLRA NO. 82 (JUNE
27, 1980); SOCIAL SECURITY ADMINISTRATION DISTRICT OFFICES IN DENVER,
PUEBLO AND GREELY, COLORADO, ET AL., 3 FLRA NO. 10 (APRIL 14, 1980);
UNITED STATES DEPARTMENT OF LABOR, 1 FLRA NO. 107 (SEPTEMBER 13, 1979);
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, 1 FLRA NO. 37 (MAY 9, 1979).
IN CASE NO. 1-CA-103, IT WAS ALLEGED THAT THE RESPONDENT UNILATERALLY
DETERMINED, WITHOUT NOTIFYING AND BARGAINING WITH THE UNION, THAT A GS-5
TECHNICIAN VACANCY IN RESPONDENT'S BROOKLYN, NEW YORK ARMORY, "WAS AN
ENTRY-LEVEL POSITION AND THUS SUBJECT TO CONVERSION UNDER THE CFTM TEST
PROGRAM." THE GRAVAMEN OF THIS CASE INVOLVES A DISPUTE AS TO WHETHER THE
POSITION WAS ENTRY LEVEL, AND THEREFORE NOT SUBJECT TO MERIT PROMOTION
PROCEDURES SET OUT IN THE MERIT PROMOTION PLAN NEGOTIATED WITH THE
UNION. SPECIFICALLY, THE RESPONDENT'S POSITION IS BASED ON ITS
INTERPRETATION OF PARAGRAPH 3(D) OF THE MERIT PROMOTION PLAN. IT IS
ARGUED THAT THE OMISSION OF THE REQUIREMENT THAT GS-5 VACANCIES IN THE
NEW YORK CITY METROPOLITAN AREA BE ADVERTISED, ESTABLISHES THEM AS ENTRY
LEVEL POSITIONS NOT SUBJECT TO THE COMPETITIVE PLACEMENT PROCEDURES
UNDER THE MERIT PROMOTION PLAN. COUNSEL FOR THE GENERAL COUNSEL
CONTENDS THAT THE PROVISIONS OF THE PLAN SHOULD HAVE BEEN APPLIED
BECAUSE THE GS-5 WAS NOT AN ENTRY LEVEL POSITION, AND FURTHER THAT THERE
WAS A GS-4 DATA TRANSCRIBER IN THE NEW YORK CITY AREA WHO COULD HAVE BID
ON THE GS-5 POSITION HAD THE RESPONDENT ADVERTISED IT UNDER THE
PROVISIONS OF THE MERIT PROMOTION PLAN. THE ARGUABLE INTERPRETATION
RELIED UPON BY THE RESPONDENT NEGATES BAD FAITH ON THE PART OF THE
RESPONDENT, AND RAISES ISSUES OF CONTRACT INTERPRETATION. SINCE THE
ISSUES INVOLVE ESSENTIALLY DIFFERING INTERPRETATIONS OF THE PARTIES'
RIGHTS AND OBLIGATIONS UNDER THE MERIT PROMOTION PLAN INCORPORATED INTO
THE NEGOTIATED AGREEMENT, AND SINCE THE RESPONDENT'S CLASSIFICATION OF
THE POSITION AS ENTRY LEVEL DID NOT CONSTITUTE A CLEAR AND UNILATERAL
BREACH OF THAT AGREEMENT, THE AGGRIEVED PARTY'S REMEDY IN THIS CASE LIES
WITHIN THE ARBITRATION PROCEDURE OF THE NEGOTIATED AGREEMENT, /22/
RATHER THAN THE UNFAIR LABOR PRACTICE PROCEDURE.
THE ENTRY LEVEL CLASSIFICATION WAS ACTUALLY A FACET OF THE
RESPONDENT'S IMPLEMENTATION OF THE CFTM TEST PROGRAM. THE ACTION WAS
TAKEN IN ACCORDANCE WITH THE PROVISIONS OF THE PROGRAM OUTLINED IN THE
FEBRUARY 8, 1979 TWIX, AND WAS IN ACCORDANCE WITH THE TERMS OF THE PLAN
ORALLY SPELLED OUT DURING THE FEBRUARY 21, 1979 MEETING. SINCE THE
RESPONDENT MET ITS OBLIGATION TO BARGAIN WITH RESPECT TO THE CFTM TEST
PROGRAM, IMPLEMENTATION IN ACCORDANCE WITH THE PROGRAM PRESENTED TO THE
UNION, MAY NOT WITHOUT MORE, BE CONSIDERED A SUFFICIENT BASIS FOR AN
UNFAIR LABOR PRACTICE.
CONCLUSION
IT IS CONCLUDED THAT A PREPONDERANCE OF THE EVIDENCE DOES NOT SUPPORT
ALLEGATIONS THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (5) OF THE
STATUTE. UPON THE BASIS OF THE FOREGOING, IT IS RECOMMENDED THAT THE
AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5 C.F.R. SEC.
2423.29(C).
ORDER
IT IS HEREBY ORDERED THAT THE CONSOLIDATED COMPLAINT RELATING TO CASE
NO. 1-CA-16 AND CASE NO. 1-CA-103, BE, AND HEREBY IS, DISMISSED.
LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
DATED: NOVEMBER 24, 1980
WASHINGTON, D.C.
--------------- FOOTNOTES: ---------------
/1/ PRIOR TO THE HEARING THE REGIONAL DIRECTOR CONSOLIDATED CASE NOS.
1-CA-16 AND 1-CA-103, WITH CASE NOS. 1-CA-195 AND 1-CA-196. ON THE
BASIS OF A STIPULATION OF THE PARTIES, THE INTERESTS OF THE PARTIES, AND
CONSIDERATIONS RELATING TO EXPEDITIOUS DISPOSITION OF THE PROCEEDING,
CASES NUMBERED 1-CA-16 AND 1-CA-103 WERE SEVERED AND TRIED SEPARATELY
(TR. 3 AND 87). NEVERTHELESS, COUNSEL FOR THE GENERAL COUNSEL FILED A
BRIEF CONSOLIDATING ARGUMENT RELATING TO THE FOUR CASES. PORTIONS OF
THE CONSOLIDATED BRIEF RELATING TO CASE NOS. 1-CA-195 AND 1-CA196 HAVE
BEEN GIVEN NO CONSIDERATION IN CONNECTION WITH THE DISPOSITION OF CASE
NOS. 1-CA-16 AND 1-CA-103.
/2/ NATIONAL GUARD TECHNICIANS ARE EMPLOYED PURSUANT TO THE NATIONAL
GUARD TECHNICIANS ACT OF 1968 AS AMENDED, 32 U.S.D; SEC. 709, IN
FULL-TIME CIVILIAN POSITIONS TO ADMINISTER AND TRAIN THE NATIONAL GUARD
AND TO MAINTAIN AND REPAIR THE SUPPLIES ISSUED TO THE NATIONAL GUARD OR
THE ARMED FORCES; AS A CONDITION OF THEIR CIVILIAN EMPLOYMENT UNDER THE
ACT, SUCH TECHNICIANS MUST BECOME AND REMAIN MEMBERS OF THE NATIONAL
GUARD, AND HOLD THE MILITARY GRADE SPECIFIED FOR THE TECHNICIAN POSITION
PURSUANT TO 32 U.S.C. SEC. 709(B) AND (E).
THE CFTM TEST PROGRAM, AUTHORIZED UNDER THE GENERAL PROVISIONS OF 32
U.S.C. SEC. 503, WAS DESIGNED TO DETERMINE THE NATIONAL GUARD'S CAPACITY
TO ATTRACT PERSONNEL INTO MILITARY POSITIONS WHICH HAD BEEN FILLED WITH
CIVILIAN MEMBERS OF THE BARGAINING UNIT.
/3/ HEREINAFTER REFERENCES TO THE TRANSCRIPT WILL BE DESIGNATED "TR.
," AND REFERENCES TO EXHIBITS WILL BE DESIGNATED "G.C. EXH. ," "R.
EXH., ," OR "JT. EXH. ."
/4/ THE UNION IS COMPRISED OF 15 CHAPTERS LOCATED IN THE STATE OF NEW
YORK. THE STATE CHAIRMAN HEADS THE UNION'S STATE ORGANIZATION.
/5/ THE PARTIES STIPULATED THAT THE PROGRAM HAD NOT BEEN IMPLEMENTED
AS OF THE FEBRUARY 21, 1979 MEETING. IT WAS ANTICIPATED THAT
IMPLEMENTATION OF THE PROGRAM WOULD OCCUR AT SOME INDEFINITE DATE IN THE
FUTURE.
/6/ THE RECORD REFLECTED THAT A TOTAL HIRING FREEZE HAD BEEN IN
EFFECT SINCE JANUARY 1, 1979.
/7/ THE RECORD DISCLOSED THAT THE UNION WAS SEEKING INFORMATION
RELATING TO THE NUMBER OF POSITIONS WHICH WOULD BE AFFECTED IN NEW YORK
STATE.
/8/ THE UNION MADE NO SPECIFIC PROPOSALS AT THE FEBRUARY 21, 1979
MEETING.
/9/ THE RECORD DOES NOT REFLECT EXACTLY WHEN THIS POSITION WAS
CONVERTED INTO A MILITARY POSITION. IT WAS SPECIFICALLY SHOWN THAT THE
RESPONDENT COULD NOT HAVE KNOWN ABOUT IT ON FEBRUARY 21, 1979, AS
ATTEMPTS WERE THEN BEING MADE TO FILL THE POSITION UNDER THE MERIT
PROMOTION PLAN. THESE ATTEMPTS PROVED TO BE UNSUCCESSFUL. HOWEVER,
SINCE AN EXCLUSIVE REPRESENTATIVE'S OBLIGATIONS AND CORRELATIVE RIGHTS,
UNDER SECTION 7114(A)(1) OF THE STATUTE, EXTEND ONLY TO EMPLOYEES IN THE
UNIT, THE SCOPE OF THE OBLIGATION TO BARGAIN IN GOOD FAITH IS RESTRICTED
TO MATTERS AFFECTING THE CONDITIONS OF EMPLOYMENT OF EMPLOYEES IN AN
APPROPRIATE UNIT. NATIONAL COUNCIL OF FIELD LABOR LOCALS, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, 3 FLRA NO. 44 (AMY 29,
1980); AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL COUNCIL OF
EEOC LOCALS, NO. 216, AFL-CIO, 3 FLRA NO. 80 (JUNE 27, 1980). HERE THE
RESPONDENT HAD NO OBLIGATION TO BARGAIN OVER MATTERS RELATING TO
NON-BARGAINING UNIT POSITIONS REFERRED TO IN THE PROPOSAL. THIS BEING
THE CASE THE PROPOSAL IN QUESTION WAS NOT IMPLEMENTED BY THE CONVERSION
OF THIS SUPERVISORY POSITION.
/10/ ON OR ABOUT MARCH 7, 1979, THE UNION EXECUTED THE ORIGINAL
UNFAIR LABOR PRACTICE CHARGE IN CASE NO. 1-CA-16, ALLEGING THAT THE
RESPONDENT REFUSED TO BARGAIN CONCERNING THE PROGRAM. THE CHARGE WAS
SERVED ON OR ABOUT MARCH 15, 1979 (G.C. EXHS. 3 AND 4).
/11/ THE COLLECTIVE BARGAINING AGREEMENT, APPROVED ON OCTOBER 3,
1975, EXPIRED AFTER A TERM OF TWO YEARS (R. EXH. 3). HOWEVER, THE
PROVISIONS OF THE AGREEMENT CONTINUED TO GOVERN THE RELATIONSHIP BETWEEN
THE PARTIES PENDING THE COMPLETION OF CONTRACT NEGOTIATIONS. DURING THE
PERIODS INVOLVED HEREIN EFFORTS TO COMPLETE THESE CONTRACT NEGOTIATIONS
WERE CONTINUING.
/12/ MR. TEDESCO TESTIFIED THAT HE HAD NO TELEPHONE CONVERSATIONS
WITH COLONEL BECK AS OUTLINED; HOWEVER, BASED UPON THE RECORD, THE
DEMEANOR OF THESE WITNESSES, AND APPARENT VAGUENESS AND UNCERTAINTY IN
KEY ELEMENTS OF MR. TEDESCO'S TESTIMONY, COLONEL BECK'S TESTIMONY IS
CREDITED ON THIS FACTUAL ISSUE.
/13/ RESPONDENT ALSO TOOK THE POSITION THAT PROPOSALS NUMBERED TWO,
AND FOUR THROUGH EIGHT, INVOLVED SUBJECT MATTER RAISED DURING CONTRACT
NEGOTIATIONS, AND THAT NOTHING PRECLUDED CONSIDERATION OF THESE
PROPOSALS IN CONNECTION WITH SUCH NEGOTIATIONS.
/14/ THE RECORD REVEALED THAT THE RESPONDENT WAS NOT CONFINED TO A
QUOTA DURING FISCAL YEAR 1979.
/15/ AS PREVIOUSLY INDICATED, NON-ENTRY LEVEL POSITIONS WERE SUBJECT
TO THE MERIT PROMOTION PLAN. IN THE EVENT OF FAILURE TO LOCATE A
SUITABLE CANDIDATE THROUGH THE MERIT PROMOTION PLAN, SUCH POSITIONS WERE
THEN ALSO SUBJECT TO CONVERSION.
/16/ COLONEL BECK TESTIFIED THAT THE POSITION WAS CONVERTED SOMETIME
DURING THE PERIOD MARCH 16 THROUGH 20, 1979.
/17/ CERTAIN EXCEPTIONS TO THE APPLICABILITY OF THE ARBITRATION
ARTICLE ARE NOT RELEVANT HERE.
/18/ THIS CASE DOES NOT INVOLVE ISSUES RELATING TO PROCEDURES TO FILL
POSITIONS CONVERTED UNDER THE CFTM TEST PROGRAM, NOR THE CONDITIONS
UNDER WHICH MILITARY PERSONNEL WOULD SERVE. THESE SUBJECT AREAS WOULD
BE BEYOND THE SCOPE OF BARGAINING UNDER THE STATUTE. ASSOCIATION OF
CIVILIAN TECHNICIANS, PENNSYLVANIA STATE COUNCIL, CASE NO. 3 FLRA NO. 8
(APRIL 14, 1980).
/19/ RECEIPT OF UNION PROPOSALS IN MAY OF 1979, AFTER IMPLEMENTATION
OF THE PROGRAM, WAS FOLLOWED UP BY THE RESPONDENT IN AN EFFORT TO
CLARIFY PROPOSALS RECEIVED SO THAT RESPONDENT COULD MAKE AN INFORMED
RESPONSE. HOWEVER, THIS EFFORT WAS FRUSTRATED BY MR. TEDESCO'S REFUSAL
TO DISCUSS THE PROPOSALS FOR THE PURPOSE OF CLARIFYING THEM. THUS, EVEN
AT THIS LATE DATE MEANINGFUL BARGAINING CONCERNING THE SUBJECT WAS
PREVENTED BY THE UNION.
/20/ THE RESPONDENT PROMPTLY EXPLAINED THAT THE SPECIFIC INFORMATION
SOUGHT DID NOT THEN EXIST. HOWEVER, WHEN A PORTION OF THIS INFORMATION
WAS IN FACT DEVELOPED AT THE END OF FISCAL YEAR 1979, SUCH DATA WAS
IMMEDIATELY SUPPLIED TO THE UNION.
/21/ IT SHOULD BE NOTED THAT THE MEMORANDUM IN QUESTION DOES NOT
INVOLVE A QUESTIONNAIRE REQUESTING BARGAINING UNIT EMPLOYEES TO RESPOND
DIRECTLY TO THE RESPONDENT, AND THEREFORE DOES NOT FALL WITHIN THE
PURVIEW OF THE RULE ENUNCIATED IN DEPARTMENT OF HEALTH, EDUCATION AND
WELFARE, SOCIAL SECURITY ADMINISTRATION, BUREAU OF RETIREMENT AND
SURVIVORS INSURANCE, NORTHEASTERN PROGRAM SERVICE CENTER, 1 FLRA NO. 59
(JUNE 14, 1979).
/22/ R. EXH. 3, ARTICLE 17.