[ v09 p575 ]
09:0575(66)CA
The decision of the Authority follows:
9 FLRA No. 66
DEPARTMENT OF THE ARMY,
HARRY DIAMOND LABORATORIES,
ADELPHI, MARYLAND
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2, AFL-CIO
Charging Party
Case No. 3-CA-1113
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE
ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN AN
UNFAIR LABOR PRACTICE AS ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT
IT BE ORDERED TO CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE
ACTION. THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S
DECISION AND AN ACCOMPANYING BRIEF.
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. /1/ UPON CONSIDERATION OF
THE JUDGE'S DECISION AND THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY
HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, AS
MODIFIED HEREIN.
THE JUDGE FOUND THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND
(5) OF THE STATUTE BY FAILING TO GIVE THE UNION ADEQUATE NOTICE AND AN
OPPORTUNITY TO BARGAIN CONCERNING THE IMPACT AND IMPLEMENTATION OF ITS
DECISION TO USE UNIT EMPLOYEES WHO ARE MEMBERS OF THE SECURITY GUARD
FORCE TO COLLECT NEWLY-IMPOSED DAILY PARKING FEES. THE AUTHORITY ADOPTS
THE JUDGE'S FINDING THAT THE RESPONDENT'S "NOTICE" TO THE UNION OF ITS
INTENTION TO USE GUARDS TO COLLECT THE FEES WHICH WAS PROVIDED TO THE
UNION PRIOR TO ITS IMPLEMENTATION MADE NO MENTION THAT GUARDS WOULD BE
USED FOR THE COLLECTION OF PARKING FEES. FURTHER, WHEN THE RESPONDENT'S
REPRESENTATIVE MET AT A NEGOTIATING SESSION WITH THREE OF THE UNION'S
MOST EXPERIENCED AND VOCAL REPRESENTATIVES ON OCTOBER 26 TO DISCUSS THE
INSTITUTION OF PARKING FEES AS OF NOVEMBER 1, THE FOCUS OF THE
DISCUSSION WAS ON THE AMOUNT OF SUCH FEES AND NOT ON WHO WOULD COLLECT
THEM. IN THIS REGARD, THE RESPONDENT'S ONLY REFERENCE TO COLLECTIONS
WAS A STATEMENT OF CONCERN THAT THE GUARDS SHOULD NOT BE HARASSED BY
THEIR FELLOW EMPLOYEES BECAUSE MANAGEMENT'S IMPLEMENTATION OF THE NEW
PAY-TO-PARK PROGRAM WAS NOT THE GUARDS' FAULT. ACCORDINGLY, WHILE THE
RESPONDENT HAD ANTICIPATED THAT THE USE OF GUARDS TO COLLECT THE PARKING
FEES WOULD BE OF GREAT CONCERN TO THE UNION, THE RESPONDENT'S STATEMENT
IN THE FOREGOING CONTEXT DID NOT REGISTER ON ANY OF THE UNION
REPRESENTATIVES AND COULD NOT REASONABLY HAVE BEEN EXPECTED TO DO SO.
BASED UPON THE FOREGOING, THE AUTHORITY CONCLUDES THAT THE STATEMENTS IN
REGARD TO THE USE OF GUARD FORCE PERSONNEL IN COLLECTING THE FEES, MADE
DURING A DISCUSSION OF THE AMOUNT OF DAILY PARKING FEES TO BE CHARGED,
WERE PASSING REFERENCES, IN A DIFFERENT CONTEXT, AND, THEREFORE, WERE
NEITHER SPECIFIC NOR CLEAR ENOUGH TO PROVIDE ADEQUATE NOTICE TO THE
UNION OF THE CHANGE IN WORKING CONDITIONS AS REQUIRED BY THE STATUTE.
/2/
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF THE ARMY, HARRY DIAMOND
LABORATORIES, ADELPHI, MARYLAND SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING TO PROVIDE ADEQUATE ADVANCE NOTICE TO THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2, AFL-CIO, THE EMPLOYEES'
EXCLUSIVE REPRESENTATIVE, CONCERNING A CHANGE IN WORKING CONDITIONS FOR
SECURITY GUARD FORCE EMPLOYEES, SO AS TO AFFORD THE EXCLUSIVE
REPRESENTATIVE AN OPPORTUNITY TO NEGOTIATE PRIOR TO IMPLEMENTATION
CONCERNING THE PROCEDURES WHICH MANAGEMENT WOULD OBSERVE IN
IMPLEMENTING
SUCH A CHANGE AND ON APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY
AFFECTED BY THE CHANGE.
(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) NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2,
AFL-CIO, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, OF ANY INTENDED CHANGE
IN WORKING CONDITIONS OF SECURITY GUARD FORCE EMPLOYEES AND, UPON
REQUEST, AFFORD THE EXCLUSIVE REPRESENTATIVE AN OPPORTUNITY TO NEGOTIATE
CONCERNING THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN IMPLEMENTING
SUCH A CHANGE AND ON APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY
AFFECTED BY THE CHANGE.
(B) POST AT THE HARRY DIAMOND LABORATORIES, ADELPHI, MARYLAND, 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 COMMANDING OFFICER AT SAID ACTIVITY 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
EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDING OFFICER SHALL TAKE
REASONABLE STEPS 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 III, 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., JULY 21, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, 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 FAIL TO PROVIDE ADEQUATE ADVANCE NOTICE TO THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2, AFL-CIO, THE EMPLOYEES'
EXCLUSIVE REPRESENTATIVE, WITH RESPECT TO A CHANGE IN WORKING CONDITIONS
FOR SECURITY GUARD FORCE EMPLOYEES, SO AS TO AFFORD THE EXCLUSIVE
REPRESENTATIVE AN OPPORTUNITY TO NEGOTIATE PRIOR TO IMPLEMENTATION
CONCERNING THE PROCEDURES WHICH MANAGEMENT WOULD OBSERVE IN
IMPLEMENTING
SUCH A CHANGE AND ON APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY
AFFECTED BY THE CHANGE. WE WILL NOT IN ANY LIKE OR RELATED MANNER
INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEES IN THE EXERCISE OF
THEIR RIGHTS ASSURED BY THE STATUTE. WE WILL NOTIFY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2, AFL-CIO, THE EMPLOYEES'
EXCLUSIVE REPRESENTATIVE, OF ANY INTENDED CHANGE IN WORKING CONDITIONS
FOR SECURITY GUARD FORCE EMPLOYEES AND, UPON REQUEST, AFFORD THE
EXCLUSIVE REPRESENTATIVE AN OPPORTUNITY TO NEGOTIATE CONCERNING THE
PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN IMPLEMENTING SUCH A CHANGE
AND ON APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
CHANGE.
(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,
REGION III, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: 1111
18TH STREET, NW., SUITE 700, WASHINGTON, D.C. 20036, AND WHOSE
TELEPHONE NUMBER IS (202) 653-8507.
-------------------- ALJ$ DECISION FOLLOWS --------------------
JOSEPH M. DAVIS, ESQ.
FOR THE RESPONDENT
ERICK J. GENSER, ESQ.
FOR THE GENERAL COUNSEL
DOUGLAS H. KERSHAW
FOR THE CHARGING PARTY
BEFORE: ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
PURSUANT TO A COMPLAINT AND NOTICE OF HEARING ISSUED ON JULY 28, 1980
BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY,
WASHINGTON, D.C., A HEARING WAS HELD BEFORE THE UNDERSIGNED ON OCTOBER
20, 1980 IN WASHINGTON, D.C.
THIS MATTER ARISES UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (HEREIN CALLED THE STATUTE). IT IS BASED ON A CHARGE
FILED ON APRIL 25, 1980 BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 2, AFL-CIO (HEREIN CALLED THE UNION) AGAINST DEPARTMENT OF THE
ARMY, HARRY DIAMOND LABORATORIES (HEREIN CALLED RESPONDENT).
THE COMPLAINT ALLEGES THAT ONE OR ABOUT OCTOBER 31, 1979, RESPONDENT
WITHOUT NOTICE TO THE UNION, AND PRIOR TO COMPLETION OF NEGOTIATIONS,
IMPLEMENTED A PAID PARKING PROGRAM FOR FEDERAL EMPLOYEES, THEREBY
DENYING THE UNION AN OPPORTUNITY TO NEGOTIATE CONCERNING THE ENFORCEMENT
OF THE PARKING PROGRAM AND THE GUARD FORCE COLLECTION OF FEES FROM
BARGAINING UNIT EMPLOYEES.
RESPONDENT'S ANSWER DENIED THE COMMISSION OF ANY UNFAIR LABOR
PRACTICES.
ALL PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE AND TO EXAMINE AND CROSS
EXAMINE WITNESSES. THEREAFTER BRIEFS WERE FILED WITH THE UNDERSIGNED
AND HAVE BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS MATTER, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS.
1. AT ALL TIMES MATERIAL, RESPONDENT HAS RECOGNIZED THE UNION AS THE
EXCLUSIVE REPRESENTATIVE OF ITS GUARD FORCE AND JANITORIAL EMPLOYEES.
FURTHERMORE, THE PARTIES HEREIN WERE ENGAGED IN MULTI-UNIT CONTRACT
NEGOTIATIONS CONCERNING THE ABOVE-MENTIONED EMPLOYEES.
2. AROUND OCTOBER 19, 1979, RESPONDENT WAS ADVISED BY THE DEPARTMENT
OF THE ARMY THAT ITS FACILITY WAS TO BE INCLUDED IN THE GOVERNMENT WIDE
PAY-TO-PARK PROGRAM TO BE IMPLEMENTED ON NOVEMBER 1, 1979. ALTHOUGH
RESPONDENT DETERMINED THAT IT WOULD SUBMIT AN APPEAL TO THE DEPARTMENT
OF THE ARMY SEEKING AN EXEMPTION TO THE PAY-TO-PARK PROGRAM IT
NONETHELESS BEGAN SOMETIME IN MID-OCTOBER TO ESTABLISH MEANS BY WHICH IT
COULD IMPLEMENT THE PAY-TO-PARK PROGRAM. /3/ RESPONDENT DECIDED THAT
SECURITY GUARDS WERE TO MAN THE ENTRANCE GATES AND INSURE THAT EMPLOYEES
DISPLAYED THEIR MONTHLY PERMITS UPON ENTERING AND LEAVING THE FACILITY.
IN ADDITION, THE SECURITY GUARDS WERE REQUIRED TO ISSUE DAILY PARKING
TICKETS AND TO COLLECT A $1.00 FEE FROM VISITORS WHO STAYED LONGER THAN
THREE HOURS. FACILITY EMPLOYEES OTHER THAN GUARDS WERE RESPONSIBLE FOR
ISSUING DAILY EXEMPTIONS UNDER THE PROGRAM.
3. ACCORDING TO RESPONDENT, IT ISSUED A DRAFT ENTITLED "HDL PAID
PARKING PROCEDURES" DATED OCTOBER 24, 1979 AND DELIVERED A COPY OF THOSE
INSTRUCTIONS TO THE UNION'S CHIEF NEGOTIATOR DOUGLAS H. KERSHAW. THE
ABOVE DOCUMENT, HOWEVER, MAKES NO MENTION OF USE OF THE SECURITY GUARD
FORCE TO COLLECT DAILY PARKING FEES AT THE FACILITY.
4. ON OCTOBER 26, 1979, THE PARTIES MET AT A NEGOTIATION SESSION
CONCERNING THE MULTI-UNIT AGREEMENT. DOUGLAS KERSHAW, JESSE COPELAND,
WILLIAM ANDREWS AND JESSE DAVIS REPRESENTED THE UNION. REPRESENTING
MANAGEMENT WERE KATHLEEN HERING, JOSEPH DAVIS, DANIEL WILCOX AND GENE
CROSS. DURING THE DISCUSSIONS OF THE DRAFT PAID PARKING PROCEDURES MS.
HERING ALLEGEDLY ADVISED KERSHAW THAT THE GUARD UNIT WOULD BE COLLECTING
THE DAILY FEE. ACCORDING TO HERING WHEN DISCUSSING THE DAILY FEE AND
MANAGEMENT'S REASON FOR WANTING A $1.50 DAILY CHARGE SHE EXPLAINED TO
KERSHAW THAT THE RATIONALE FOR MANAGEMENT'S PROPOSAL WAS TO DISCOURAGE
EMPLOYEES FROM PAYING ON A DAILY BASIS. HERING ALSO ADVISED KERSHAW
THAT MANY OF RESPONDENT'S EMPLOYEES HAD THREATENED TO PAY THE DAILY FEE
WITH $20 AND $50 BILLS IN ORDER TO SLOW UP THE DAILY COLLECTIONS. IN
THE CONTEXT OF THIS DISCUSSION, MR. KERSHAW WAS ADVISED THAT
MANAGEMENT'S DAILY FEE PROPOSAL WAS DESIGNED TO PREVENT HARASSMENT OF
THE GUARD UNIT AS THEY COLLECTED THE DAILY FEES. HERING ALLEGEDLY MADE
THE POINT SEVERAL TIMES TO THE UNION NEGOTIATION TEAM INDICATING THAT
MANAGEMENT WAS CONCERNED ABOUT THE BARGAINING UNIT, IN THAT THEY DID NOT
WANT THE GUARD FORCE HARASSED BY FELLOW EMPLOYEES, SINCE IT WAS NOT
THEIR FAULT THEY HAD TO ENFORCE THE PARKING REGULATIONS TO INCLUDE
COLLECTING THE DAILY FEES.
5. KERSHAW CONTINUED TO ARGUE OVER THE DAILY FEE. MR. KERSHAW, IN
TESTIMONY, CONTENDS THAT THE HERING STATEMENT CONCERNING THE GUARDS
COLLECTING THE DAILY FEE DID NOT REGISTER ON HIM. COPELAND AND ANDREWS,
WHO ARE BOTH EMPLOYED BY THE SECURITY GUARD FORCE ACCORDING TO
RESPONDENT WITNESSES LOOKED AT KERSHAW EXPECTING HIM TO SAY SOMETHING
CONCERNING THE USE OF THE GUARD FORCE TO COLLECT THE PARKING FEE. WHILE
THERE IS TESTIMONY THAT COPELAND AND ANDREWS USUALLY ACTIVELY
PARTICIPATED IN NEGOTIATIONS AND CALLED CAUCUSES WHEN MATTERS AROSE OVER
WHICH THEY DID NOT AGREE NO SUCH CAUCUS WAS CALLED DURING THIS SESSION
AND NEITHER COPELAND OR ANDREWS COMMENTED ON THE HERING REMARK.
6. SECURITY GUARD PERSONNEL WERE ASSIGNED TO THE GATES FOR
COLLECTION PURPOSES ON NOVEMBER 1, 1979. THE FOLLOWING DAY, NOVEMBER 2,
1979 SECURITY GUARD FORCE PERSONNEL WERE BRIEFED ON PERFORMING
ENFORCEMENT AND COLLECTION DUTIES FOR THE PAY-TO-PARK PROGRAM.
BASICALLY, SECURITY GUARDS ON THE SECOND AND THIRD WATCH WERE INCLUDED
IN THIS MEETING SINCE THEY WERE EXPECTED TO BE PART OF THE ENFORCEMENT
PROGRAM. THIS INFORMAL COURSE INCLUDED HOW TO COLLECT THE FEES, HOW TO
USE THE TIME CLOCK, WHAT PEOPLE SHOULD BE EXEMPT, WHO WERE NOT EXEMPT,
AND OTHER RELEVANT MATTERS. NO WRITTEN INSTRUCTIONS WERE DISTRIBUTED
SINCE THE PROGRAM WAS ONLY TENTATIVE AND NEGOTIATIONS HAD NOT BEEN
COMPLETED WITH THE UNION OVER IMPLEMENTING INSTRUCTIONS FOR THE PARKING
PROGRAM.
7. THE NEXT NEGOTIATION SESSION TOOK PLACE ON NOVEMBER 9, 1979. AT
THIS MEETING, NO MENTION WAS MADE BY MR. KERSHAW OF THE GUARD
ENFORCEMENT OF THE PAY-TO-PARK PROGRAM. FURTHERMORE, UNION STEWARDS
COPELAND AND ANDREWS, DID NOT SAY ANYTHING TO THE MANAGEMENT NEGOTIATION
TEAM REGARDING THE GUARD ENFORCEMENT OF THE PAY-TO-PARK PROGRAM.
8. AT THE NOVEMBER 16, 1979 NEGOTIATION SESSION, MR. KERSHAW, FOR
THE FIRST TIME, RAISED THE ISSUE OF GUARD ENFORCEMENT OF THE PAY-TO-PARK
PROGRAM. ACCORDING TO KERSHAW HE WAS MADE AWARE THAT GUARDS WERE
COLLECTING PARKING FEES BY A GUARD AT THE GATE. THERE KERSHAW ADVISED
RESPONDENT THAT IT HAD NOT NOTIFIED HIM ABOUT THE USE OF SECURITY GUARDS
TO COLLECT FEES. HERING ADVISED KERSHAW THAT SHE HAD IN FACT NOTIFIED
THE UNION ON TWO OCCASIONS AT THE OCTOBER 26, 1979 NEGOTIATION SESSION.
MR. KERSHAW REPLIED "OH", AND THEN REQUESTED A SPECIAL BARGAINING
SESSION. IN RESPONSE TO THIS REQUEST, A SPECIAL SESSION WAS SCHEDULED
FOR NOVEMBER 21 TO DISCUSS THE USE OF SECURITY GUARDS IN THE PAY-TO-PARK
PROGRAM.
9. FIVE DAYS LATER, ON NOVEMBER 21 THE SPECIAL SESSION WAS HELD. AT
THAT SESSION RESPONDENT DID NOT SUBMIT ANY WRITTEN OR ORAL PROPOSALS TO
THE UNION, BUT THE UNION SUBMITTED TWO PROPOSALS FOR MANAGEMENT. THE
FIRST PROPOSAL DEALT WITH THE GUARDS NOT COLLECTING FEES. WITH RESPECT
TO THIS PROPOSAL THE UNION WAS ADVISED THAT GUARD COLLECTION OF FEES WAS
ONLY TEMPORARY AND THAT MANAGEMENT DID NOT WANT THE GUARDS TO BE
COLLECTING ON A PERMANENT BASIS. RESPONDENT ALSO STATED THAT IT HAD THE
RIGHT TO ASSIGN WORK AND WOULD RETAIN THAT RIGHT. SPECIFICALLY,
RESPONDENT POINTED OUT THAT IT HAD THE RIGHT TO DETERMINE WHO WOULD
COLLECT FEES. THE SECOND PROPOSAL DEALT WITH ESTABLISHING A FULL-TIME
POSITION, THE DUTIES OF WHICH WOULD BE THAT OF COLLECTING FEES, AND THIS
POSITION WOULD PROVIDE A PLACE FOR LIGHT-DUTY EMPLOYEES. RESPONDENT
REJECTED THAT PROPOSAL AS DEALING WITH ITS STAFFING PATTERNS. WHILE
RESPONDENT DID NOT SPECIFICALLY DECLARE THE PROPOSALS NON-NEGOTIABLE, IT
DID INDICATE TO THE UNION THAT THE SUBJECTS THEY DEALT WITH WERE
NON-NEGOTIABLE SUBJECTS. KERSHAW THEN REQUESTED WRITTEN INSTRUCTIONS.
RESPONDENT INDICATED THAT THERE WERE NO WRITTEN INSTRUCTIONS DEVELOPED;
RATHER AN INFORMAL COURSE HAD BEEN GIVEN TO THE GUARDS DESCRIBING THEIR
ASSIGNMENT OF COLLECTING FEES. RESPONDENT CLOSED THE SESSION BY
INDICATING THAT IT WOULD DRAFT WRITTEN INSTRUCTIONS FOR THE UNION.
10. THE RECORD SHOWS THAT THE PARTIES CONTINUED NEGOTIATIONS OVER
THE USE OF GUARD FORCE PERSONNEL TO COLLECT FEES AS WELL AS OTHER
ASPECTS OF THE PAY PARKING PROGRAM, AND THAT SOMETIME DURING FEBRUARY
1980, RESPONDENT INITIATED RECRUITING ACTIONS FOR TEMPORARY EMPLOYEES TO
COLLECT PARKING FEES. FINALLY, IN JULY 1980 TEMPORARY PARKING
ATTENDANTS WERE HIRED TO COLLECT FEES AND THE SECURITY GUARD FORCE WAS
RELIEVED OF THAT RESPONSIBILITY.
DISCUSSION AND CONCLUSIONS
A. PROCEDURAL MATTERS.
RESPONDENT ORIGINALLY MOVED TO DISMISS THE COMPLAINT BASED ON THE
GROUND THAT THE OFFENSE CHARGED IN THE COMPLAINT OCCURRED MORE THAN SIX
MONTHS BEFORE THE CHARGE, UPON WHICH THE COMPLAINT WAS BASED WAS SERVED
ON RESPONDENT. AT THE HEARING, RESPONDENT ENLARGED ITS MOTION TO
INCLUDE THE ALLEGATION THAT THE UNION HAD FAILED TO COMPLY WITH THE
PROCEDURES ESTABLISHED IN THE RULES AND REGULATIONS OF THE FEDERAL LABOR
RELATIONS AUTHORITY. SPECIFICALLY, RESPONDENT ALLEGED THAT THE UNION:
(1) FAILED TO SERVE A COPY OF THE CHARGE ON RESPONDENT AT THE TIME IT
WAS FILED; (2) FAILED TO SERVE THE CHARGE BY CERTIFIED MAIL; AND, (3)
FAILED TO CERTIFY SERVICE TO THE FEDERAL LABOR RELATIONS AUTHORITY AT
THE TIME THE CHARGE WAS FILED. RESPONDENTS MOTION TO DISMISS WHICH WAS
TAKEN UNDER ADVISEMENT AT THE HEARING IS DENIED.
THE RECORD DISCLOSES THAT THE ALLEGED VIOLATION COMPLAINED OF
OCCURRED ON OR ABOUT NOVEMBER 1, 1979 WHEN THE PAY-TO-PARKING PROGRAM
WAS ALLEGEDLY IMPLEMENTED WITHOUT NOTICE TO OR BARGAINING WITH THE
UNION. THE CHARGE IN THIS MATTER WAS FILED ON APRIL 25, 1980. SECTION
7118(A)(A) PROVIDES:
NO COMPLAINT SHALL BE ISSUED BASED ON ANY ALLEGED UNFAIR LABOR
PRACTICE WHICH OCCURRED MORE
THAN 6 MONTHS BEFORE THE FILING OF THE CHARGE WITH THE AUTHORITY.
RESPONDENT DOES NOT SERIOUSLY CONTEND THAT THE CHARGE HEREIN WAS NOT
FILED WITHIN THE SIX-MONTH PERIOD SET OUT IN THE STATUTE. IT ARGUES
ONLY THAT RESPONDENT DID NOT RECEIVE A COPY OF THE UNFAIR LABOR PRACTICE
CHARGE, WHICH WAS SERVED ON IT BY CERTIFIED MAIL BY THE REGIONAL
DIRECTOR UNTIL MAY 2, 1980 OR AFTER THE STATUTORY SIX-MONTH PERIOD.
THIS ARGUMENT IS WITHOUT FOUNDATION. THE CHARGE IN THIS MATTER WAS
CLEARLY FILED WITHIN THE SIX-MONTH LIMITATION PERIOD PRESCRIBED BY THE
STATUTE. THE STATUTE MAKES NO MENTION OF WHEN THE CHARGE MUST BE SERVED
OR HOW SERVED UPON A RESPONDENT BUT STATES MERELY THAT IN ORDER TO ISSUE
A COMPLAINT THE CHARGE MUST BE FILED WITH THE AUTHORITY WITHIN THE
SIX-MONTH PERIOD. THAT REQUIREMENT WAS MET BY THE APRIL 25 FILING AND
BY APPARENTLY EXPEDITIOUS SERVICE OF THE CHARGE ON MAY 2, 1980 BY THE
REGIONAL DIRECTOR, REGION 3.
RESPONDENT'S ARGUMENT THAT THE UNION DID NOT SERVE IT BY CERTIFIED
MAIL AS REQUIRED BY THE REGULATIONS OR THAT IT DID NOT MEET ALL OF THE
REQUIREMENTS OF THE REGULATIONS IS ALSO WIDE OF THE MARK. RESPONDENT
WAS INDEED SERVED WITH A COPY OF THE CHARGE BY THE UNION ALBEIT NOT
UNTIL AROUND JUNE 17, 1980. HOWEVER, RESPONDENT WAS SERVED WITH A COPY
OF THE CHARGE ON MAY 2, 1979 BY CERTIFIED MAIL BY THE REGIONAL DIRECTOR.
SECTION 2423.6(B) STATES THAT:
UPON THE FILING OF A CHARGE, THE CHARGING PARTY SHALL BE RESPONSIBLE
FOR THE SERVICE OF A
COPY OF THE CHARGE (WITHOUT THE SUPPORTING EVIDENCE AND DOCUMENTS)
UPON THE PERSON(S) AGAINST
WHOM THE CHARGE IS MADE, AND FOR FILING A WRITTEN STATEMENT OF SUCH
SERVICE WITH THE REGIONAL
DIRECTOR. 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.
THIS SECTION HAS BEEN COMPLIED WITH IN MY VIEW. IT DOES NOT MEAN AS
THE RESPONDENT STATES THAT THE UNION MUST IMMEDIATELY OR SIMULTANEOUSLY
SERVE A COPY OF THE CHARGE UPON RESPONDENT, BUT MEANS ONLY THAT THE
CHARGING PARTY IS RESPONSIBLE FOR SEEING THAT SERVICE IS MADE.
FURTHERMORE, THE REGIONAL OFFICE ASSERTS THAT ALL PROCEDURAL
REQUIREMENTS FOR FILING OF THE CHARGE WERE MET AND THAT THE REGULATIONS
WERE COMPLIED WITH. MOREOVER, AS ALREADY STATED, THE EVIDENCE SHOWS
THAT RESPONDENT WAS SERVED BY CERTIFIED MAIL ON MAY 2, 1980 BY THE
REGIONAL OFFICE. IN ESSENCE, RESPONDENT WITHOUT SHOWING ANY DETRIMENT
IS COMPLAINING THAT IT WAS NOT SERVED THE CHARGE BY CERTIFIED MAIL
TWICE. ABSENT ANY SHOWING OF PREJUDICE AND IN VIEW OF THE REGIONAL
OFFICE'S ASSERTION THAT ALL PROCEDURAL REQUIREMENTS HAD BEEN MET BEFORE
IT SERVED THE CHARGE ON RESPONDENT, I FIND THAT RESPONDENT'S ARGUMENTS
LACK MERIT.
B. NEGOTIATIONS CONCERNING IMPACT AND IMPLEMENTATION OF THE USE OF
SECURITY GUARDS TO COLLECT PARKING FEES.
THE PIVOTAL QUESTION IN THIS MATTER IS WHETHER RESPONDENT MET ITS
INITIAL BURDEN OF NOTIFYING THE UNION THAT THE SECURITY GUARD FORCE
WOULD ASSUME THE RESPONSIBILITY FOR COLLECTING DAILY PARKING FEES AT
RESPONDENT'S FACILITY BEGINNING NOVEMBER 1, 1979. /4/ RESPONDENT ARGUES
THAT IT GAVE PROPER NOTIFICATION AT AN OCTOBER 26, 1979 NEGOTIATION
SESSION AND THAT IT WAS THEN INCUMBENT ON THE UNION TO REQUEST IMPACT
AND IMPLEMENTATION BARGAINING PRIOR TO THE DATE THE GUARDS WERE TO BEGIN
PERFORMING SUCH DUTIES. THE GENERAL COUNSEL, ON THE OTHER THAN,
CONTENDS THAT DISCUSSION DURING THE OCTOBER 26, 1979 MEETING CONCERNING
RESPONDENT'S PROPOSED IMPLEMENTING PROCEDURES FOR THE PAID PARKING
PROGRAM DID NOT CONSTITUTE PROPER NOTIFICATION UNDER THE STATUTE. THE
GENERAL COUNSEL ARGUES THAT THE STATEMENTS ALLEGED TO HAVE BEEN MADE BY
RESPONDENT'S OFFICIALS WERE NOT SUFFICIENTLY CLEAR AND SPECIFIC TO PUT
THE UNION ON NOTICE OF A CONTEMPLATED CHANGE IN WORKING CONDITIONS IN
ORDER THAT THE UNION COULD INTELLIGENTLY ANALYZE THE PROPOSED CHANGES
AND REQUEST BARGAINING IF IT SO DESIRED. IN SUPPORT OF ITS ARGUMENT THE
GENERAL COUNSEL CITED SEVERAL EXECUTIVE ORDER CASES, JACKSONVILLE
DISTRICT, INTERNAL REVENUE SERVICE, JACKSONVILLE, FLORIDA, 7 A/SLMR 758,
A/SLMR NO. 893 (SEPTEMBER 1977); ARMY AND AIR FORCE EXCHANGE SERVICE,
PACIFIC EXCHANGE SYSTEM, HAWAII REGIONAL EXCHANGE, 4 A/SLMR 791, A/SLMR
NO. 454 (NOVEMBER 1974); DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
SERVICE, MANHATTAN DISTRICT, 7 A/SLMR 419, A/SLMR NO. 841 (MAY 16, 1977)
WHICH CASES INVOLVED ADEQUATE NOTICE AND TIME TO CONSIDER THE CHANGE,
THE PROCEDURES FOR ITS IMPLEMENTATION AND ITS POSSIBLE AND PROBABLE
IMPACT; AND TO REQUEST BARGAINING AND TO ACTUALLY BARGAIN ABOUT THE
IMPLEMENTATION PROCEDURES AND ITS IMPACT.
ASSUMING THAT RESPONDENT'S REPRESENTATIVE HYER MENTIONED THE
HARASSMENT OF GUARDS WHEN THE PARTIES WERE DISCUSSING THE PROPOSED
CHARGES FOR THE DAILY FEE, THE QUESTION BECOMES WHETHER THIS WAS
ADEQUATE NOTICE TO THE UNION THAT GUARDS WERE TO COLLECT FEES THEREBY
REQUIRING IT TO REQUEST IMPACT BARGAINING THAT TIME. THE FACTS IN THIS
MATTER DO NOT SUPPORT SUCH A FINDING. FIRST, IT IS NOTED THAT THE
OCTOBER 24, 1979 DRAFT OF PARKING REGULATIONS MAKES NO MENTION OF GUARDS
COLLECTING FEES AND IN NO WAY PUT THE UNION ON NOTICE THAT THIS
RESPONSIBILITY WOULD FALL ON THE GUARD FORCE. SECONDLY, UNION
REPRESENTATIVE KERSHAW IS CREDITED THAT THE STATEMENTS OF HYER MADE
DURING DISCUSSION OF THE COLLECTION OF FEES DID NOT REGISTER WITH HIM.
FURTHER, RESPONDENT'S IMPRESSION THAT OTHER UNION NEGOTIATORS UNDERSTOOD
THE IMPACT OF HYERS STATEMENT IS OF LITTLE ASSISTANCE SINCE THESE
NEGOTIATORS WERE ALSO TESTIFIED TO HAVE SUBSTANTIAL INPUT BY VIRTUE OF
QUESTIONS AND CAUCUSES WHEN THEY DID NOT AGREE WITH A POINT DURING
NEGOTIATIONS. HERE THEY MADE NO COMMENTS. FINALLY, KERSHAW CREDIBLY
TESTIFIED THAT HE DID NOT BECOME AWARE OF THE USE OF GUARDS TO COLLECT
FEES UNTIL SOMETIME AROUND NOVEMBER 16. NOR IS THERE ANY EVIDENCE THAT
ANY UNION OFFICIAL DESIGNATED TO RECEIVE NOTICE OF A CHANGE IN WORKING
CONDITIONS WAS INFORMED THAT GUARDS WERE TO ASSUME NEW RESPONSIBILITY.
IN ALL THESE CIRCUMSTANCES, IT IS FOUND THAT THE UNION WAS NOT INFORMED
OF THE USE OF GUARDS TO COLLECT FEES AT THE OCTOBER 26 MEETING, BUT THAT
ITS NEGOTIATOR BECAME AWARE OF THE USE OF GUARDS ONLY ON NOVEMBER 9 OR
THEREAFTER, OR AFTER THE CHANGE IN WORKING CONDITIONS HAD BEEN IN EFFECT
FOR WELL OVER A WEEK. /5/ IN VIEW OF THE ABOVE FINDING THAT ADEQUATE
NOTICE WAS NOT GIVEN AT THE OCTOBER 26 MEETING IT IS UNNECESSARY TO
DECIDE WHETHER NOTICE GIVEN FIVE DAYS BEFORE A CHANGE IN WORKING
CONDITIONS IS MADE CONSTITUTES SUFFICIENT TIME.
IT IS ALSO FOUND THAT UNION NEGOTIATORS DID NOT HAVE ACTUAL OR
CONSTRUCTIVE NOTICE, PRIOR TO IMPLEMENTATION OF THE USE OF THE GUARD
FORCE IN SUFFICIENT TIME TO REQUEST NEGOTIATIONS. CERTAINLY GUARD
COLLECTION OF FEES WAS DISCUSSED AT NEGOTIATION MEETING AFTER NOVEMBER
9. HOWEVER, THE RECORD SHOWS THAT NEITHER THE MEMBERS OF THE UNION'S
NEGOTIATION TEAM WERE NOT APPROACHED TO DISCUSS THE USE OF GUARD FORCE
PERSONNEL TO COLLECT FEES NOR IT IS LIKELY THAT THE GUARDS OR
NEGOTIATORS WERE AWARE THAT THEY WOULD BE REQUIRED TO COLLECT DAILY FEES
UNTIL ABOUT NOVEMBER 1. ALTHOUGH GUARDS ATTENDED THE NOVEMBER 2, 1979
MANAGEMENT MEETING TO DISCUSS THE IMPLEMENTATION OF THE PROGRAM SUCH
DISCUSSION OCCURRED AFTER IMPLEMENTATION OF THE CHANGE AND WAS NOT
DIRECTED TO THE UNION REPRESENTATIVE DESIGNATED TO RECEIVE NOTICE OF
CHANGES IN WORKING CONDITIONS AND WOULD NOT SERVE AS NOTICE. THEREFORE,
THAT MEETING CANNOT BE RELIED UPON BY RESPONDENT. THE AUTHORITY STATED
IN UNITED STATES AIR FORCE, AIR FORCE LOGISTICS COMMAND, AEROSPACE
GUIDANCE AND METROLOGY CENTER, NEWARK, OHIO, 4 FLRA NO. 70 (1980) THAT
CHANCE KNOWLEDGE OF AN AGENT THAT A CHANGE IS BEING MADE IS NOT
APPROPRIATE NOTICE TO THAT AGENT OR OTHER UNION OFFICIALS, DOES NOT
CONSTITUTE APPROPRIATE ADVANCE NOTICE AND DOES NOT COMPLY WITH A
RESPONDENT'S OBLIGATION TO CONSULT IN GOOD FAITH AS REQUIRED BY THE
STATUTE. THE RATIONALE IN THAT CASE IS EQUALLY APPLICABLE TO THIS
MATTER. THE RECORD HEREIN CLEARLY DEMONSTRATES THAT NO NOTICE WAS GIVEN
OF THE RESPONDENT'S INTENTION TO USE GUARDS AS COLLECTORS OF THE DAILY
PARKING FEES.
I ALSO AGREE WITH THE GENERAL COUNSEL THAT NEGOTIATIONS CONDUCTED
SUBSEQUENT TO NOVEMBER 1, 1979 WHICH WERE SUBSEQUENT TO THE EFFECTIVE
IMPLEMENTATION OF THE CHANGE IN WORKING CONDITIONS DO NOT CONSTITUTE THE
FULFILLMENT OF ITS BARGAINING OBLIGATION UNDER THE STATUTE. THE
OBLIGATION TO MEET AND CONFER BECOMES MEANINGFUL ONLY WHEN AGENCY
MANAGEMENT HAS AFFORDED THE BARGAINING REPRESENTATIVE REASONABLE
NOTIFICATION AND AN AMPLE OPPORTUNITY TO EXPLORE FULLY THE MATTERS
INVOLVED PRIOR TO TAKING ACTION. FEDERAL RAILROAD ADMINISTRATION, 4
A/SLMR 498, A/SLMR NO. 418 (JULY 1977). THEREFORE RESPONDENT'S
CONTENTION THAT IT HAS MET AND BARGAINED IN GOOD FAITH SINCE NOVEMBER 9
CONCERNING DAILY FEE COLLECTIONS BY SECURITY GUARDS BECOMES IRRELEVANT
SINCE IN ORDER TO FULFILL ITS OBLIGATION UNDER THE STATUTE ITS
OBLIGATION WAS BARGAINING CONCERNING IMPACT AND IMPLEMENTATION PRIOR TO
INSTITUTING THE CHANGE.
HAVING FOUND THAT RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5) BY
FAILING TO GIVE THE UNION ADVANCE NOTICE AND AN OPPORTUNITY TO BARGAIN
CONCERNING THE IMPACT AND IMPLEMENTATION OF ITS DECISION TO USE THE
SECURITY GUARD FORCE TO COLLECT DAILY PARKING FEES, I HEREBY RECOMMEND
THAT THE AUTHORITY ADOPT THE FOLLOWING ORDER:
ORDER
PURSUANT TO 5 U.S.C. 7118(A)(7) AND SECTION 2423.26 OF THE FINAL
RULES AND REGULATIONS, 45 FED.REG. 3482, 3510 (1980), IT IS HEREBY
ORDERED THAT THE DEPARTMENT OF THE ARMY, HARRY DIAMOND LABORATORIES,
ADELPHI, MARYLAND SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING TO NOTIFY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 2, AFL-CIO, OR ANY
OTHER EXCLUSIVE REPRESENTATIVE, CONCERNING A CHANGE IN WORKING
CONDITIONS FOR THE SECURITY
GUARD FORCE, AND TO AFFORD SUCH REPRESENTATIVE THE OPPORTUNITY TO
MEET AND CONFER, TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE IMPACT SUCH CHANGE
IN WORK CONDITIONS WILL
HAVE ON THE UNIT EMPLOYEES ADVERSELY AFFECTED BY SUCH ACTION.
(B) ASSIGNING TO GUARD FORCE EMPLOYEES WORK TASKS DIFFERENT FROM
THOSE ASSIGNABLE PRIOR TO
THE CHANGE IN WORK CONDITIONS, WITHOUT AFFORDING THE AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2, AFL-CIO, OR ANY OTHER EXCLUSIVE REPRESENTATIVE
THE OPPORTUNITY TO MEET AND
CONFER, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE
IMPACT THAT SUCH CHANGES WILL
HAVE ON UNIT EMPLOYEES ADVERSELY AFFECTED BY SUCH ACTION.
(C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED BY THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE STATUTE.
(A) NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2,
AFL-CIO, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE OF ANY INTENDED CHANGE IN WORKING CONDITIONS
OF SECURITY GUARD FORCE
EMPLOYEES AND, UPON REQUEST, AFFORD SUCH REPRESENTATIVE THE
OPPORTUNITY TO MEET AND CONFER, TO
THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE IMPACT SUCH
CHANGE IN WORKING CONDITIONS
WILL HAVE ON THE UNIT EMPLOYEES ALREADY AFFECTED BY SUCH ACTION.
(B) POST AT THE HARRY DIAMOND LABORATORIES, ADELPHI, MARYLAND, 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 COMMANDING OFFICER AT SAID
ACTIVITY 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 EMPLOYEES ARE
CUSTOMARILY POSTED. THE
COMMANDING OFFICER SHALL TAKE REASONABLE STEPS TO INSURE THAT SAID
NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 2423.30 OF THE FINAL RULES AND REGULATIONS,
45 FED.REG.AT 3511,
NOTIFY THE REGIONAL DIRECTOR OF REGION III, 1133 15TH STREET, N.W.,
SUITE 300 WASHINGTON,
D.C. 20005, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER,
AS TO WHAT STEPS HAVE
BEEN TAKEN TO COMPLY HEREWITH.
ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
DATED: APRIL 16, 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 CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY
NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT FAIL TO NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2, AFL-CIO, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, WITH
RESPECT TO A CHANGE IN WORKING CONDITIONS FOR SECURITY GUARD FORCE
EMPLOYEES, AND AFFORD SUCH REPRESENTATIVE THE OPPORTUNITY TO MEET AND
CONFER, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE IMPACT
AND IMPLEMENTATION THAT SUCH CHANGE IN WORKING CONDITIONS WILL HAVE ON
UNIT EMPLOYEES ADVERSELY AFFECTED BY SUCH ACTION. WE WILL NOT ASSIGN
WORK TASKS TO SECURITY GUARD FORCE EMPLOYEES REPRESENTED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2, AFL-CIO, WITHOUT AFFORDING
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2, AFL-CIO, OR ANY
OTHER EXCLUSIVE REPRESENTATIVE, THE OPPORTUNITY TO MEET AND CONFER, TO
THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE IMPACT SUCH
ASSIGNMENTS WILL HAVE ON UNIT EMPLOYEES ADVERSELY AFFECTED BY SUCH
ACTION. WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH,
RESTRAIN, OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS
ASSURED BY THE STATUTE. WE WILL NOTIFY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, OF ANY
INTENDED ASSIGNMENTS TO UNIT EMPLOYEES AND, UPON REQUEST, AFFORD SUCH
REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, ON THE IMPACT SUCH ASSIGNMENT WILL
HAVE ON UNIT EMPLOYEES ADVERSELY AFFECTED BY SUCH ACTION.
(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 MATERIALS. IF EMPLOYEES HAVE ANY
QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ANY OF ITS
PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR FOR
THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: 1133 15TH
STREET, N.W., SUITE 300, WASHINGTON, D.C. 20005.
--------------- FOOTNOTES$ ---------------
/1/ THE AUTHORITY ADOPTS THE JUDGE'S CONCLUSION THAT THE COMPLAINT
SHOULD NOT BE DISMISSED BASED UPON THE CHARGING PARTY'S NONCOMPLIANCE
WITH PROCEDURES SET FORTH IN THE AUTHORITY'S RULES AND REGULATIONS.
THUS, WHILE THE CHARGING PARTY DID NOT, "(U)PON THE FILING OF THE
CHARGE," SERVE THE RESPONDENT WITH A COPY THEREOF OR PROVIDE THE
REGIONAL DIRECTOR WITH A CERTIFICATE OF SERVICE PURSUANT TO SECTION
2423.6(B) OF THE AUTHORITY'S RULES AND REGULATIONS, AND DID NOT SERVE
THE RESPONDENT WITH A COPY OF THE CHARGE BY CERTIFIED MAIL PURSUANT TO
SECTION 2429.27(B), THE REGIONAL DIRECTOR DID IN FACT SERVE THE
RESPONDENT WITH A COPY OF THE CHARGE WITHIN A FEW DAYS AFTER THE CHARGE
WAS FILED. ACCORDINGLY, UNDER THE CIRCUMSTANCES, THE AUTHORITY
CONCLUDES THAT THE RESPONDENT WAS NOT PREJUDICED AS A RESULT OF THE
CHARGING PARTY'S FAILURE TO SERVE A COPY OF THE CHARGE ON THE RESPONDENT
HEREIN "UPON THE FILING OF THE CHARGE," AND THAT IT WOULD NOT EFFECTUATE
THE PURPOSES AND POLICIES OF THE STATUTE TO DISMISS THE COMPLAINT.
/2/ SEE U.S. DEPARTMENT OF THE AIR FORCE, AIR FORCE SYSTEMS COMMAND,
ELECTRONIC SYSTEMS DIVISION, HANSCOM AFB, MASSACHUSETTS, 5 FLRA NO. 88
(1981), WHEREIN THE AUTHORITY ADOPTED THE JUDGE'S DECISION THAT AN
AGENCY MUST GIVE THE UNION "ADEQUATE NOTICE" OF ITS DECISION TO
EFFECTUATE A CHANGE, I.E., SPECIFIC NOTICE OF ANY INTENDED CHANGE, AND
THAT A MERE PASSING REFERENCE TO A GENERAL SUBJECT MATTER WITHOUT
MENTIONING ANY CONTEMPLATED CHANGE RELATING TO SUCH MATTER DOES NOT
CONSTITUTE ADEQUATE NOTICE. IN THAT CASE, THE AUTHORITY FURTHER ADOPTED
THE JUDGE'S FINDING, IN THE CIRCUMSTANCES PRESENTED, THAT MANAGEMENT HAD
GIVEN THE UNION ADEQUATE ADVANCE NOTICE OF THE DOWNGRADINGS IN QUESTION.
/3/ FOR PURPOSES OF THIS DECISION THE MECHANICS OF APPEAL FOR
EXEMPTION AND THE DECISION MAKING PROCESS TO USE SECURITY GUARDS INSTEAD
OF CONTRACTORS OR OTHER EMPLOYEES TO PERFORM THE FEE COLLECTION NEED NOT
BE DISCUSSED.
/4/ THE QUESTION OF WHETHER OR NOT MANAGEMENT HAD A RIGHT UNDER
SECTION 7116(A)(6) OF THE STATUTE TO "ASSIGN" WORK OR DETERMINE
"STAFFING PATTERNS" WAS NOT CHALLENGED BY THE GENERAL COUNSEL.
THEREFORE, IT IS UNNECESSARY FOR PURPOSES OF THIS MATTER TO MAKE A
DETERMINATION AS TO WHETHER OR NOT RESPONDENT HAD A RESERVED MANAGEMENT
RIGHT TO ASSIGN GUARDS TO COLLECTION OF DAILY FEES.
/5/ IN ITS BRIEF, RESPONDENT INADVERTENTLY STATES THAT THE
NEGOTIATION MINUTES OF OCTOBER 26 CONTAINED STATEMENTS CONCERNING THE
GUARD ENFORCEMENT OF PAY-TO-PARK PROGRAMS TO, INCLUDE COLLECTION OF
FEES. A REVIEW OF THE RECORD SHOWS THAT THE MINUTES REFERRED TO BY
RESPONDENT INVOLVE A NOVEMBER 21 NEGOTIATION SESSION.