[ v02 p12 ]
02:0012(2)CA
The decision of the Authority follows:
2 FLRA No. 2
DEPARTMENT OF THE AIR FORCE
MALMSTROM AIR FORCE BASE
MALMSTROM AIR FORCE BASE, MONTANA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2609, AFL-CIO
Complainant
Assistant Secretary
Case No. 61-4022(CA)
DECISION AND ORDER
ON MARCH 13, 1979, ADMINISTRATIVE LAW JUDGE ALFRED LINDEMAN ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-- ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD ENGAGED IN THE UNFAIR LABOR PRACTICES
ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT IT CEASE AND DESIST
THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN THE
ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER. THE
RESPONDENT FILED EXCEPTIONS WITH RESPECT TO THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE COMPLAINANT FILED A BRIEF
IN REPLY THERETO.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(44 F.R. 44741, JULY 30, 1979). THE AUTHORITY CONTINUES TO BE
RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE,
INCLUDING THE EXCEPTIONS FILED BY THE RESPONDENT AND THE COMPLAINANT'S
BRIEF IN REPLY THERETO, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE
LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS AS MODIFIED
HEREIN.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT VIOLATED
SECTION 19(A)(1) AND (6) OF THE ORDER WHEN IT CHANGED POLICIES GOVERNING
TRAFFIC AND PARKING VIOLATIONS AT THE ACTIVITY WITHOUT FIRST AFFORDING
THE COMPLAINANT WITH AN OPPORTUNITY TO NEGOTIATE CONCERNING THE DECISION
TO CHANGE SUCH POLICIES OR THE IMPACT OF ITS IMPLEMENTATION. MORE
SPECIFICALLY, THE CHANGE INVOLVED WAS THE DECISION OF THE BASE COMMANDER
TO INSTITUTE A "MAGISTRATE SYSTEM" AS THE METHOD FOR HANDLING BASE
TRAFFIC AND PARKING VIOLATIONS. IN REACHING THIS CONCLUSION, THE
ADMINISTRATIVE LAW JUDGE FOUND, AMONG OTHER THINGS, THAT THE DECISION TO
IMPLEMENT THE NEW SYSTEM WAS A CHANGE IN A MATTER AFFECTING WORKING
CONDITIONS WITHIN THE MEANING OF SECTION 11(A) OF THE ORDER AND,
CONSEQUENTLY, THE RESPONDENT WAS OBLIGATED TO NEGOTIATE OVER BOTH THE
CHANGE AND THE IMPACT OF ITS IMPLEMENTATION.
THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDATION IS ADOPTED INSOFAR AS
IT WOULD FIND A VIOLATION OF SECTION 19(A)(1) AND (6) IN THE
RESPONDENT'S FAILURE TO NOTIFY THE COMPLAINANT AND AFFORD IT AN
OPPORTUNITY TO BARGAIN OVER THE IMPACT AND IMPLEMENTATION OF THE
"MAGISTRATE SYSTEM" ON BARGAINING UNIT EMPLOYEES INVOLVED HEREIN. /1/
HOWEVER, CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, IT IS CONCLUDED THAT
THE RESPONDENT WAS UNDER NO OBLIGATION TO MEET AND CONFER WITH THE
COMPLAINANT OVER ITS DECISION TO MAKE THE CHANGE. SECTION 12(B)(5) OF
THE EXECUTIVE ORDER RESERVES TO AGENCY MANAGEMENT THE RIGHT "TO
DETERMINE THE METHODS, MEANS, AND PERSONNEL BY WHICH . . . OPERATIONS
ARE TO BE CONDUCTED." IN THE AUTHORITY'S VIEW, THE RESPONDENT'S DECISION
TO TRANSFER PROCESSING OF TRAFFIC OFFENSES TO A UNITED STATES MAGISTRATE
CLEARLY FALLS WITHIN THE AMBIT OF THAT SECTION OF THE ORDER. AS
SUBJECTS ENCOMPASSED WITHIN SECTION 12(B) OF THE ORDER ARE
NON-NEGOTIABLE, IT FOLLOWS THAT THE RESPONDENT HAD NO BARGAINING
OBLIGATION IN THIS REGARD. /2/
CONSISTENT WITH THIS DECISION, THE AUTHORITY HEREBY ISSUES THE
FOLLOWING ORDER: /3/
ORDER
PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE DEPARTMENT OF THE AIR FORCE, MALMSTROM AIR FORCE BASE,
MALMSTROM AIR FORCE BASE, MONTANA, SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING A "MAGISTRATE SYSTEM" AS THE METHOD OF HANDLING
TRAFFIC OFFENSES AT MALMSTROM AIR FORCE BASE WITHOUT FIRST AFFORDING THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2609, AFL-CIO, THE
EMPLOYEES' EXCLUSIVE BARGAINING REPRESENTATIVE, A REASONABLE OPPORTUNITY
TO MEET AND CONFER, TO THE EXTEND CONSONANT WITH LAW AND REGULATIONS, ON
THE PROCEDURES TO BE OBSERVED IN IMPLEMENTING SUCH SYSTEM AND THE IMPACT
OF THE SYSTEM ON ADVERSELY AFFECTED EMPLOYEES.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) UPON REQUEST BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 2609, AFL-CIO, MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW
AND REGULATIONS, CONCERNING THE PROCEDURES TO BE OBSERVED IN INSTITUTING
A "MAGISTRATE SYSTEM" AS THE METHOD OF HANDLING TRAFFIC OFFENSES, AND ON
THE IMPACT SUCH SYSTEM WILL HAVE ON ADVERSELY AFFECTED EMPLOYEES.
(B) POST AT ITS FACILITY AT MALMSTROM AIR FORCE BASE COPIES OF THE
ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS THEY
SHALL BE SIGNED BY THE BASE COMMANDER AND SHALL BE POSTED AND MAINTAINED
FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE BASE COMMANDER SHALL TAKE REASONABLE STEPS TO
ENSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
IT IS HEREBY FURTHER ORDERED THAT THE REMAINDER OF THE COMPLAINT IN
ASSISTANT SECRETARY CASE NO. 61-4022(CA) BE, AND IT HEREBY IS,
DISMISSED.
ISSUED, WASHINGTON, D.C., OCTOBER 19, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY /4/
APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND
ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN
ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR
EMPLOYEES THAT:
WE WILL NOT INSTITUTE A "MAGISTRATE SYSTEM" AS THE METHOD OF HANDLING
TRAFFIC OFFENSES AT MALMSTROM AIR FORCE BASE WITHOUT FIRST AFFORDING THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2609, AFL-CIO, THE
EMPLOYEES' EXCLUSIVE BARGAINING REPRESENTATIVE, A REASONABLE OPPORTUNITY
TO MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON
THE PROCEDURES TO BE OBSERVED IN IMPLEMENTING SUCH SYSTEM AND THE IMPACT
OF THE SYSTEM ON ADVERSELY AFFECTED EMPLOYEES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
WE WILL, UPON REQUEST, MET AND CONFER WITH THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2609, AFL-CIO, TO THE EXTENT CONSONANT WITH
LAW AND REGULATIONS, CONCERNING THE PROCEDURES TO BE OBSERVED IN
INSTITUTING A "MAGISTRATE SYSTEM" AS THE METHOD OF HANDLING TRAFFIC
OFFENSES, AND ON THE IMPACT OF SUCH SYSTEM ON ADVERSELY AFFECTED
EMPLOYEES.
(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 ANY EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
WITH THE REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY,
WHOSE ADDRESS IS: CITY CENTER SQUARE, 1100 MAIN STREET, SUITE 680,
KANSAS CITY, MISSOURI 64105, AND WHOSE TELEPHONE NUMBER IS: (816)
374-2199.
MAJOR WILLIAM CREGAR
UNITED STATES AIR FORCE
CENTRAL LABOR LAW OFFICE
RANDOLPH AIR FORCE BASE, TEXAS 78148
FOR THE RESPONDENT
WAYNE A. CRABTREE
NATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES
STAR ROUTE 1, BOX 72
EAST EMERALD LAKE DRIVE
GRAPEVIEW, WASHINGTON 98546
FOR THE COMPLAINANT
BEFORE: ALFRED LINDEMAN
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
THIS PROCEEDING ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREINAFTER THE "EXECUTIVE ORDER"), PURSUANT TO A COMPLAINT DATED JULY
21, 1978, AND AN AMENDED COMPLAINT DATED AUGUST 1, 1978, WHEREIN
COMPLAINANT, LOCAL 2609 OF THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, CHARGES THE RESPONDENT, DEPARTMENT OF THE AIR FORCE,
MALMSTROM AIR FORCE BASE, MALMSTROM AIR FORCE BASE, MONTANA, WITH
VIOLATING SECTIONS 19(A)(1) AND (6) OF THE EXECUTIVE ORDER IN CONNECTION
WITH THE DECISION BY THE BASE COMMANDER IN MAY AND JUNE OF 1978 TO
INSTITUTE A "MAGISTRATE SYSTEM" FOR DEALING WITH TRAFFIC AND PARKING
VIOLATIONS ON MALMSTROM AIR FORCE BASE. THE RESPONDENT FILED AN ANSWER
AND STATEMENT OF FACTS DATED AUGUST 15, 1978, DENYING THE ALLEGATIONS OF
THE COMPLAINT. SUBSEQUENTLY, ON OCTOBER 18, 1978, THE ACTING REGIONAL
ADMINISTRATOR OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION ISSUED A
NOTICE OF HEARING ON COMPLAINT ALLEGING VIOLATIONS OF SECTION 19 OF
EXECUTIVE ORDER 11491, AS AMENDED. THIS DECISION, PURSUANT TO
TRANSITION RULES AND REGULATIONS, FEDERAL REGISTER, VOL. 44, NO. 1,
JANUARY 2, 1979, PAGES 7-8, IS ISSUED IN THE NAME OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND, IN ACCORDANCE WITH SEC. 2400.2 (5 C.F.R.
2400.2) OF THE TRANSITION RULES AND REGULATIONS, SHALL BE PROCESSED BY
THE AUTHORITY IN ACCORDANCE WITH THE RULES AND REGULATIONS OF THE
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS, TITLE 29, CODE OF
FEDERAL REGULATIONS, PART 201, ET SEQ., EXCEPT THAT THE WORK "AUTHORITY"
SHALL BE SUBSTITUTED WHEREVER THE WORDS "ASSISTANT SECRETARY" APPEAR IN
THE RULES AND REGULATIONS OF THE OFFICE OF THE ASSISTANT SECRETARY.
A HEARING WAS HELD IN GREAT FALLS, MONTANA, ON JANUARY 18, 1979, AT
WHICH BOTH PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO ADDUCE
EVIDENCE, AND TO CALL, EXAMINE AND CROSS-EXAMINE WITNESSES.
POST-HEARING BRIEFING, AS REQUESTED BY THE PARTIES, HAS BEEN FULLY
CONSIDERED. UPON THE ENTIRE RECORD IN THIS CASE, I MAKE THE FOLLOWING
FINDINGS OF FACT, CONCLUSIONS AND ORDER.
FINDINGS OF FACT
1. THE COMPLAINANT UNION HAS AT ALL TIMES RELEVANT TO THIS
PROCEEDING HAD EXCLUSIVE RECOGNITION AS REPRESENTATIVE OF THE BARGAINING
UNIT OF WHICH ELIGIBLE EMPLOYEES ARE MEMBERS. APPROXIMATELY 500
EMPLOYEES ARE CURRENTLY MEMBERS OF SAID UNIT.
2. SOMETIME IN MAY 1978, THE BASE COMMANDER OF MALMSTROM AIR FORCE
BASE, COLONEL EDGAR A. GILL, DECIDED TO INSTITUTE A SYSTEM KNOWN AS THE
MAGISTRATE SYSTEM ON THE BASE. UNDER THE MAGISTRATE SYSTEM ALL
CIVILIANS CITED WITH TRAFFIC AND PARKING VIOLATIONS BY THE BASE POLICE
ARE REFERRED TO THE U.S. MAGISTRATE IN GREAT FALLS, EITHER TO PLEAD
THEIR INNOCENCE OR TO PAY THE AMOUNT SPECIFIED FOR THE CHARGED CATEGORY
OF OFFENSE. UNDER AIR FORCE REGULATION 110-15, DATED MAY 4, 1972, ALL
BASE COMMANDERS HAVE HAD DISCRETION WHETHER OR NOT TO INSTITUTE THIS
SYSTEM (RESPONDENT'S EXHIBIT 1).
3. ALTHOUGH THE MAGISTRATE SYSTEM WAS ALLEGED TO HAVE BEEN UTILIZED
AT MALMSTROM AIR FORCE BASE AT SOME UNSPECIFIED TIME IN THE DISTANT
PAST, DURING THE YEARS IMMEDIATELY PRECEDING MAY 1978 A "POINT SYSTEM"
HAD BEEN EMPLOYED UNDER WHICH CIVILIANS WHO WERE CHARGED WITH MOVING
VIOLATIONS WERE ASSESSED A CERTAIN NUMBER OF POINTS, WITH THE MAXIMUM
NUMBER OF POINTS (12) RESULTING IN REVOCATION OF DRIVING PRIVILEGES ON
THE BASE. OTHER REMEDIAL MEASURES IMPOSED INCLUDED COUNSELING, DRIVING
TRAINING, AND REFERRAL TO ALCOHOL/DRUG TREATMENT REHABILITATION. NO
MONETARY PENALTIES WERE IMPOSED (RESPONDENT'S EXHIBIT 2).
4. BASED UPON LEGAL ADVICE RECEIVED FROM HIS CHIEF LEGAL OFFICER,
COLONEL GILL TOOK THE POSITION THAT THE DECISION TO INSTITUTE AND
IMPLEMENT THE MAGISTRATE SYSTEM WAS NOT SUBJECT TO THE NEGOTIATION
REQUIREMENTS OF EXECUTIVE ORDER 11491. COLONEL GILL THEREFORE
INSTRUCTED HIS REPRESENTATIVES TO CONTACT THE UNION TO GIVE THEM
NECESSARY INFORMATION REGARDING THE MAGISTRATE SYSTEM. PURSUANT TO THAT
DIRECTION TWO REPRESENTATIVES OF THE RESPONDENT ATTENDED A UNION MEETING
ON MAY 24, 1978. AFTER SAID REPRESENTATIVES ADVISED THE UNION THAT THE
MAGISTRATE SYSTEM WAS TO APPLY TO UNION MEMBERS, THE UNION'S PRESIDENT
TOOK THE POSITION THAT THE DECISION TO INSTITUTE THE SYSTEM WAS A
"NEGOTIABLE ITEM" AND RESPONDENT'S REPRESENTATIVES WERE ASKED TO LEAVE
THE MEETING. AT A SUBSEQUENT MEETING REQUESTED BY THE UNION IN COLONEL
GILL'S OFFICE ON MAY 30, 1978, COLONEL GILL ADHERED TO THE POSITION THAT
THE DECISION TO INSTITUTE THE MAGISTRATE SYSTEM WAS NOT NEGOTIABLE.
ACTUAL IMPLEMENTATION OF THE SYSTEM OFFICIALLY COMMENCED THAT DAY, AND
THE FIRST TICKET UNDER IT WAS ISSUED TO A CIVILIAN EMPLOYEE ON JUNE 7,
1978 (TR. 81).
5. ON JUNE 7, 1978, THE UNION PRESIDENT FILED A FORMAL WRITTEN
REQUEST FOR NEGOTIATION (COMPLAINANT'S EXHIBIT 1) AND AFTER A WRITTEN
DENIAL FROM COLONEL GILL DATED JUNE 13, 1978 (COMPLAINANT'S EXHIBIT 2),
THE UNION'S NATIONAL REPRESENTATIVE FILED A FORMAL CHARGE DATED JUNE 30,
1978, UNDER THE EXECUTIVE ORDER (COMPLAINANT'S EXHIBIT 3). ON JULY 13,
1978, COLONEL GILL RESPONDED STATING: "NEITHER THE DECISION TO
INSTITUTE THE MAGISTRATE COURT SYSTEM AT MALMSTROM AIR FORCE BASE NOR
THE IMPLEMENTATION OF THAT DECISION IS NEGOTIABLE." (COMPLAINANT'S
EXHIBIT 4). ALTHOUGH RESPONDENT HAS ARGUED THAT ITS REPRESENTATIVES
WERE NOT ALLOWED TO CONTINUE DESCRIBING THE MAGISTRATE SYSTEM TO UNION
MEMBERS AT THEIR MAY 24, 1978 MEETING, AND THAT THE UNION NEVER
PRESENTED ANY WRITTEN ISSUES FOR NEGOTIATION, IT IS CLEAR FROM THE
TESTIMONY THAT THE UNION WAS AT ALL TIMES BEING PRESENTED WITH AN
ACCOMPLISHED FACT (I.E., "THE ACTIVITIES THAT WERE TAKING PLACE") (TR.
P. 72); IT WAS NOT BEING AFFORDED THE OPPORTUNITY TO DISCUSS THE
ADVERSE IMPACT OF THE SYSTEM ON ITS MEMBERS. INDEED, IT IS CLEAR FROM
THE RECORD THAT THROUGHOUT HIS DEALINGS WITH THE UNION ON THIS MATTER
THE BASE COMMANDER WAS UNIFORMLY CONSISTENT IN TAKING THE POSITION THAT
NO ASPECT OF THE MAGISTRATE SYSTEM WAS OPEN TO NEGOTIATIONS (TR. 91,
93-4).
6. THE EVIDENCE IS UNCONTROVERTED THAT PARKING TICKETS, TRAFFIC
VIOLATIONS AND CITATIONS FOR EXPIRED LICENSE PLATES RECEIVED SINCE THE
INSTITUTION OF THE MAGISTRATE SYSTEM INVOLVE THE PAYMENT OF SPECIFIED
MONETARY PENALTIES AND/OR APPEARANCE BEFORE THE U.S. MAGISTRATE,
WHEREAS PREVIOUSLY SUCH INFRACTIONS WERE HANDLED WITHIN THE "POINT
SYSTEM" WITHOUT IMPOSITION OF MONETARY PENALTIES. /5/
7. THERE HAS BEEN NO PROOF PRESENTED TO SUPPORT RESPONDENT'S
ASSERTION THAT THE SYSTEM OF REFERRING CIVILIAN TRAFFIC AND PARKING
VIOLATORS TO THE U.S. MAGISTRATE HAD A REAL RELATIONSHIP TO THE
MAINTENANCE OF THE BASE'S INTERNAL SECURITY. RATHER, THE RECORD
INDICATES THE DECISION TO INSTITUTE THE NEW SYSTEM WAS MADE TO PRODUCE A
UNIFORMITY OF TREATMENT FOR INFRACTIONS INCURRED BY ALL CIVILIANS ON THE
BASE, WHETHER THEY ARE EMPLOYEES, DEPENDENTS OR VISITORS (TR. 55-6,
92-3).
CONCLUSIONS
THE THRESHOLD ISSUE THUS PRESENTED IS WHETHER THE DECISION TO
IMPLEMENT THE MAGISTRATE SYSTEM WAS A MATTER AFFECTING WORKING
CONDITIONS WITHIN THE MEANING OF SECTION 11(A) OF THE EXECUTIVE ORDER,
THEREBY REQUIRING THE RESPONDENT TO PROVIDE THE UNION WITH AN
OPPORTUNITY TO MEET AND CONFER CONCERNING SAID DECISION. THE RESPONDENT
HAS VARIOUSLY CLAIMED AS THE BASIS FOR ITS POSITION REFUSING
NEGOTIATION: (1) THAT THE DECISION WAS "MADE IN THE (COMMANDER'S)
CAPACITY OF MANAGER RATHER THAN EMPLOYER," (2) THAT "THE (MAGISTRATE)
SYSTEM IS APPLIED TO ALL CIVILIANS ON BASE . . . AND DOES NOT AFFECT THE
TERMS AND CONDITIONS OF EMPLOYMENT," AND (3) THAT "THE IMPLEMENTATION OF
THE MAGISTRATE SYSTEM FALLS WITHIN THIS AGENCY'S INTERNAL SECURITY
PRACTICES, AND, CONSEQUENTLY, IS EXEMPT FROM ANY REQUIREMENT TO MEET AND
CONFER, AS PER THE EXEMPTIONS LISTED IN SECTION 11(B), EXECUTIVE ORDER
11491" (COMPLAINANT'S EXHIBIT 2). THE RESPONDENT HAS OFFERED TWO CASES
AS LEGAL SUPPORT FOR ITS POSITION, DEPARTMENT OF THE NAVY, NORFOLK NAVAL
SHIPYARD, A/SLMR NO. 805 (MARCH 1, 1977), THE PARTICULAR CASE RELIED
UPON BY THE LEGAL OFFICER IN ADVISING COLONEL GILL, AND WARNER ROBINS
AIR LOGISTICS CENTER, ROBINS AIR FORCE BASE, GEORGIA, CASE NO.
40-7581(CA), REQUEST FOR REVIEW NO. 909, DECISION OF THE ASSISTANT
SECRETARY, DATED JULY 7, 1977. I CONCLUDE RESPONDENT'S RELIANCE ON SAID
CASES IS MISPLACED.
IN THE NORFOLK NAVAL SHIPYARD CASE, THE NAVY PUBLISHED A NOTICE
INFORMING ALL MOTOR VEHICLE OPERATORS WITHIN THE SHIPYARD THAT,
EFFECTIVE IMMEDIATELY, RADAR WOULD BE USED TO ENFORCE POSTED SPEED
LIMITS. THE ASSISTANT SECRETARY FOUND THAT NO PROVISION OF THE
PREVIOUSLY EXISTING REGULATIONS "RELATING TO SPEED LIMITS OR THE
PENALTIES FOR VIOLATION THEREOF WAS CHANGED" AND THEREFORE HE CONCLUDED
THAT UNDER THESE CIRCUMSTANCES THE RESPONDENT WAS NOT REQUIRED TO MEET
AND CONFER WITH THE COMPLAINANT CONCERNING THE NEW METHOD OF ENFORCING
THE EXISTING POLICY (A/SLMR NO. 805 AT P. 2).
THE ROBINS AIR FORCE BASE MATTER INVOLVED A REQUEST FOR REVIEW FROM A
REGIONAL ADMINISTRATOR'S DETERMINATION THAT A BASE COMMANDER'S ANNOUNCED
POLICY OF SUSPENDING BASE DRIVING PRIVILEGES OF PERSONS RESPONSIBLE FOR
TRAFFIC ACCIDENTS ONLY INCIDENTALLY AFFECTED UNION EMPLOYEES AND WAS
THUS NOT A VALID BASIS FOR OBLIGATING THAT RESPONDENT WAS TO CONSULT AND
NEGOTIATE WITH THE UNION. THE ASSISTANT SECRETARY UPHELD THE DISMISSAL
OF THE COMPLAINT AND THE FEDERAL LABOR RELATIONS COUNCIL DENIED THE
PETITION FOR REVIEW BECAUSE "THE EVIDENCE FAILS TO ESTABLISH THAT THE
SUBJECT POLICY COMPLAINED OF EFFECTED ANY REAL CHANGE IN EMPLOYEE TERMS
AND CONDITIONS OF EMPLOYMENT" (FLRC NO. 77A-83), DECEMBER 20, 1977,
REPORT NUMBER 139, DECEMBER 22, 1977. SIGNIFICANTLY, PRIOR TO THE
INSTITUTION OF THE POLICY WHICH AUTOMATICALLY IMPOSED SUSPENSION OF BASE
DRIVING PRIVILEGES FOR ACCIDENTS, THERE EXISTED A POINT SYSTEM UNDER
WHICH SUSPENSION WOULD RESULT AFTER AN ACCUMULATION OF 12 POINTS (IT
APPEARS THAT SAID POINT SYSTEM IS THE SAME POINT SYSTEM ALLUDED TO IN
THE INSTANT MATTER; SEE RESPONDENT'S EXHIBIT 2).
IN CONTRAST, THE MAGISTRATE SYSTEM INSTITUTED AT MALMSTROM AIR FORCE
BASE DID INTRODUCE REAL CHANGES IN EMPLOYEE WORKING CONDITIONS WHICH I
FIND CLEARLY DISTINGUISHABLE FROM THE CHANGES INVOLVED IN NORFOLK AND
ROBINS. SPECIFICALLY, THE MAGISTRATE SYSTEM DID NOT MERELY INTRODUCE
THE USE OF NEW EQUIPMENT (RADAR) TO ENFORCE EXISTING REGULATIONS AND IT
DID NOT MAINTAIN THE SAME SANCTIONS FOR MOTOR VEHICLE INFRACTIONS.
RATHER, IT CREATED NEW PENALTIES FOR INFRACTIONS INCURRED WHILE
OPERATING EITHER GOVERNMENT OR PRIVATE VEHICLES, AND THUS IT DID
MATERIALLY CHANGE THE RESULT EMPLOYEES WERE ACCUSTOMED TO WHEN CITED
FOR
TRAFFIC VIOLATIONS ON THE BASE. FOR EXAMPLE, PREVIOUSLY FAILURE TO HAVE
A CURRENT LICENSE PLATE REGISTRATION ONLY ACCRUED POINTS, WHEREAS UNDER
THE MAGISTRATE SYSTEM SUCH AN INFRACTION IS SUBJECT TO A $20.00 PENALTY
(TR. PP. 41-2). PRIOR TO INSTITUTING THE CURRENT SYSTEM THERE WERE NO
PENALTIES FOR PARKING VIOLATIONS, BUT UNDER THE NEW SYSTEM THERE IS A
$10.00 FINE (TR. 26). DRIVING UNDER THE INFLUENCE OF ALCOHOL PREVIOUSLY
ONLY SUBJECTED THE DRIVER TO THE POINT SYSTEM; UNDER THE MAGISTRATE
SYSTEM MONETARY PENALTIES AND A POSSIBLE EFFECT ON HIS DRIVER'S LICENSE
AND INSURANCE ARE INVOLVED (TR. PP. 47-8). ACCORDINGLY, I MUST CONCLUDE
THE RESPONDENT'S DECISION TO IMPLEMENT THIS SYSTEM WAS A MATTER
AFFECTING WORKING CONDITIONS WITHIN THE MEANING OF SECTION 11(A) OF THE
EXECUTIVE ORDER. SEE DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION, METROPOLITAN WASHINGTON AIRPORT SERVICE, ET AL., A/SLMR
NO. 1062 (JUNE 13, 1978) (CHANGE IN EMPLOYEE PARKING PERMIT FEES HELD A
MATTER AFFECTING WORKING CONDITIONS); FEDERAL AVIATION ADMINISTRATION,
FAA AERONAUTICAL CENTER, OKLAHOMA, A/SLMR NO. 1047 (MAY 17, 1978)
(CHANGE IN AGENCY POLICIES CONCERNING PENALTIES FOR PARKING AND TRAFFIC
VIOLATIONS); GENERAL SERVICES ADMINISTRATION, REGION III, PUBLIC
BUILDING SERVICE, CENTRAL SUPPORT FIELD OFFICE, A/SLMR NO. 582, 5 A/SLMR
706 (1975) (CHANGE IN POLICY CONCERNING PARKING PRIVILEGES AFFECTED
WORKING CONDITIONS); U.S. ARMY ELECTRONICS COMMAND, FORT MONMOUTH, NEW
JERSEY, A/SLMR NO. 658 A/SLMR 228 (MAY 25, 1976) (POLICY CONCERNING
MOTOR VEHICLE REGISTRATION AFFECTED WORKING CONDITIONS); SOCIAL
SECURITY ADMINISTRATION, BUREAU OF HEARINGS AND APPEALS, A/SLMR NO. 828,
7 A/SLMR NO. 337 (APRIL 19, 1977) (NEW PROCEDURE FOR ISSUING PARKING
PASSES WAS A MATTER AFFECTING WORKING CONDITIONS); CF., DEPARTMENT OF
HEW, SOCIAL SECURITY ADMINISTRATION, BUREAU OF RETIREMENT AND SURVIVORS
INSURANCE, NORTHEASTERN PROGRAM SERVICE CENTER, A/SLMR NO. 1170
(DECEMBER 28, 1978) (PARKING PRIVILEGES ARE WORKING CONDITIONS).
RESPONDENT ATTEMPTS TO DISTINGUISH THE FOREGOING CASES ON THE GROUND
THEY INVOLVED CHANGES OF RULES CONCERNED SOLELY WITH THE PARTICULAR
PARKING OR MOTOR VEHICLE REGULATION IN QUESTION, WHEREAS THE MAGISTRATE
SYSTEM WAS NOT NEGOTIABLE BECAUSE IT WAS TO APPLY TO OTHER MINOR
CRIMINAL OFFENSES AS WELL AS BEING "INCIDENTALLY" RELATED TO UNION
MEMBERS' WORKING CONDITIONS. I DO NOT AGREE THAT APPLICATION OF THE
MAGISTRATE SYSTEM WAS SO REMOTELY RELATED TO WORKING CONDITIONS THAT THE
UNION, IN BEHALF OF ITS MEMBERS, COULD NOT PROPERLY PERCEIVE A REAL
BASIS FOR SEEKING NEGOTIATIONS. FOR EXAMPLE, ALL OF THE UNION MEMBERS
WHO TESTIFIED INDICATED THAT THE MAGISTRATE SYSTEM WAS TO BE EFFECTIVE
WHEN THEY WERE OPERATING GOVERNMENT-OWNED VEHICLES ON OFFICIAL BUSINESS.
IN FACT, ONE MEMBER HAD INCURRED INDIVIDUAL FINANCIAL LIABILITY WHEN,
AS AN EQUIPMENT OPERATOR IN THE COURSE OF HIS OFFICIAL DUTIES, HE
DAMAGED ANOTHER VEHICLE IN THE PARKING LOT (TR. 45).
FURTHERMORE, SINCE I DO NOT BELIEVE THE EFFECT ON UNION MEMBERS WAS
DE MINIMUS OR INSIGNIFICANT, I CANNOT AGREE WITH THE RESPONDENT'S LEGAL
ARGUMENTS THAT THE DECISION TO INSTITUTE THE MAGISTRATE SYSTEM WAS NOT
NEGOTIABLE EITHER BECAUSE IT INVOLVED THE MALMSTROM AIR FORCE BASE
"COMMUNITY AS A WHOLE" OR BECAUSE THE SYSTEM WAS INTENDED TO ENFORCE
"THE ENTIRE CORPUS OF FEDERAL AND MONTANA LAW." THE PRINCIPLE RELIED
UPON BY RESPONDENT-- THAT A CHANGE OF A POLICY THAT AFFECTS BOTH UNION
MEMBERS AND OTHERS OR THAT ENCOMPASSES BOTH RULES THAT AFFECT UNION
MEMBERS' WORKING CONDITIONS AND RULES THAT DO NOT IS NOT SUBJECT TO THE
NEGOTIATION REQUIREMENTS OF THE EXECUTIVE ORDER-- IS NOT APPLICABLE
WHERE THE EFFECT ON UNION MEMBERS' WORKING CONDITIONS IS MORE THAN
"INCIDENTAL." THUS, I MUST CONCLUDE THAT THE "PARKING FEE AND MOTOR
VEHICLE REGULATION" CASES CITED ABOVE REMAIN CONTROLLING UPON THE CHANGE
OF POLICY IN QUESTION IN THIS CASE.
IN VIEW OF THE DETERMINATION THAT A CHANGE IN WORKING CONDITIONS WAS
INVOLVED, IT IS NOT RELEVANT THAT THE BASE COMMANDER CLAIMED TO BE
EXERCISING HIS "SOVEREIGN" DISCRETION UNDER AIR FORCE REGULATIONS IN THE
INTEREST OF APPLYING A UNION SYSTEM FOR SAFEGUARDING THE SAFETY AND
WELFARE OF PEOPLE AND PROPERTY ON THE BASE. SIMILARLY IRRELEVANT IS
RESPONDENT'S CONTENTION THAT AIR FORCE REGULATION 110-15 REQUIRES THAT
ALL CIVILIAN OFFENDERS BE REFERRED "FOR INDISCRIMINATE AND IMPARTIAL
JUDICIAL DISPOSITION" UNDER THE MAGISTRATE SYSTEM (RESPONDENT'S EXHIBIT
1, P. 7). IT IS PRECISELY BECAUSE THE COMMANDER HAD DISCRETION OVER A
MATTER AFFECTING WORKING CONDITIONS THAT THE UNION SHOULD NOT HAVE BEEN
PRECLUDED FROM ATTEMPTING TO PERSUADE HIM TO EXERCISE THAT DISCRETION BY
NOT INSTITUTING THE NEW SYSTEM AT ALL, OR AT LEAST NOT APPLYING IT TO
ALL CATEGORIES OF PARKING, DRIVING AND MOTOR VEHICLE INFRACTIONS (E.G.,
THOSE INCURRED WHILE OPERATING GOVERNMENT VEHICLES IN THE COURSE OF
OFFICIAL DUTIES). /6/ MOREOVER, EVEN ASSUMING ARGUENDO THAT THE
COMMANDER HAD BEEN DERELICT IN NOT EXERCISING HIS DISCRETION BEFORE MAY
OF 1978, HE WOULD HAVE BEEN OBLIGATED TO MEET AND CONSULT REGARDING THE
NEW DECISION. SEE DEPARTMENT OF THE ARMY, DUGWAY PROVING GROUND,
DUGWAY, UTAH, A/SLMR NO. 745, 6 A/SLMR 618 (NOVEMBER 9, 1976).
FINALLY, ALTHOUGH IN ITS BRIEF RESPONDENT HAS WITHDRAWN ITS INTERNAL
SECURITY" DEFENSE, I NOTE THE ABSENCE OF EVIDENCE DEMONSTRATING ANY REAL
NEXUS BETWEEN THE DECISION TO INSTITUTE THE MAGISTRATE SYSTEM AND THE
INTERNAL SECURITY OF THE BASE. HENCE, RESPONDENT WAS NOT EXEMPT FROM
THE OBLIGATION TO MEET AND CONFER UNDER THE "INTERNAL SECURITY
PRACTICES" PROVISION OF SECTION 11(B) OF THE EXECUTIVE ORDER.
HAVING FOUND THAT THE BASE COMMANDER'S DECISION TO EXERCISE HIS
DISCRETION UNDER AIR FORCE REGULATION 110-15 TO INSTITUTE THE MAGISTRATE
SYSTEM AT MALMSTROM AIR FORCE BASE WAS A MATTER AFFECTING WORKING
CONDITIONS UNDER SECTION 11(A) OF THE EXECUTIVE ORDER, AND THAT SAID
DECISION WAS MADE WITHOUT AFFORDING THE UNION THE OPPORTUNITY TO CONFER
AND/OR NEGOTIATE ON EITHER THE DECISION ITSELF OR THE IMPACT OF ITS
IMPLEMENTATION ON THE MEMBERS OF THE UNION, I CONCLUDE SUCH ACTIVITY
CONSTITUTED A REFUSAL TO NEGOTIATE, WHICH IS AN UNFAIR LABOR PRACTICE
WITHIN THE MEANING OF SECTION 19(A)(6) OF THE EXECUTIVE ORDER.
DERIVATIVELY, RESPONDENT'S ACTIONS MUST BE CONSTRUED TO HAVE INTERFERED
WITH AND RESTRAINED THE UNION'S MEMBER-EMPLOYEES IN THE EXERCISE OF
THEIR RIGHTS ASSURED BY THE ORDER; THUS, AN UNFAIR LABOR PRACTICE UNDER
SECTION 19(A)(1) OF THE EXECUTIVE ORDER.
IN VIEW OF THE FOREGOING VIOLATIONS OF THE EXECUTIVE ORDER, IT IS
APPROPRIATE THAT THE DECISION TO INSTITUTE AND IMPLEMENT THE MAGISTRATE
SYSTEM BE RESCINDED IN ORDER THAT SUCH A CHANGE IN POLICY GOVERNING
MOTOR VEHICLE VIOLATIONS MAY BE EFFECTED ONLY AFTER PROPER NOTICE AND AN
OPPORTUNITY TO NEGOTIATE IS PROVIDED TO THE UNION. ALSO, THE CUSTOMARY
"POSTING" REQUIREMENTS ARE CALLED FOR IN THIS CASE. HOWEVER, THERE IS
NO BASIS OR AUTHORITY FOR CAUSING "ALL FINES LEVIED AGAINST BARGAINING
UNIT MEMBERS" TO BE REFUNDED, AS REQUESTED BY THE UNION FOR THE FIRST
TIME IN ITS BRIEF; THE U.S. MAGISTRATE TO WHOM SAID FINES PRESUMABLY
WERE PAID IS NOT A PARTY TO THIS PROCEEDING, AND THERE HAS BEEN NO
SHOWING THAT ANY OF SAID FINES ARE WITHIN THE POSSESSION OR CONTROL OF
THE RESPONDENT.
ORDER
PURSUANT TO SECTION 6(B) OF THE EXECUTIVE ORDER 11491, AS AMENDED,
AND SECTION 203.26(B) OF THE REGULATIONS, THE FEDERAL LABOR RELATIONS
AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF THE AIR FORCE, MALMSTROM
AIR FORCE BASE, MALMSTROM AIR FORCE BASE, MONTANA, SHALL:
1. CEASE AND DESIST FROM:
(A) CHANGING POLICIES GOVERNING MOTOR VEHICLE VIOLATIONS AT MALMSTROM
AIR FORCE BASE WITHOUT FIRST AFFORDING THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL UNION 2609, NOTICE AND AN
OPPORTUNITY TO MEET AND CONFER CONCERNING A PROPOSED CHANGE IN SUCH
POLICIES.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) RESCIND THE DECISION MADE IN MAY 1978 TO IMPLEMENT THE MAGISTRATE
SYSTEM CONCERNING MOTOR VEHICLE VIOLATIONS AT THE BASE.
(B) UPON REQUEST, MEET AND CONFER WITH THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL UNION 2609, CONCERNING ANY PROPOSED
CHANGE IN POLICY REGARDING MOTOR VEHICLE VIOLATIONS AT MALMSTROM AIR
FORCE BASE.
(C) POST AT THE MALMSTROM AIR FORCE BASE, MONTANA, COPIES OF THE
ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY
SHALL BE SIGNED BY THE BASE COMMANDER, MALMSTROM AIR FORCE BASE,
MONTANA, 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
BASE COMMANDER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES
ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(D) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE FEDERAL
LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF
THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ALFRED LINDEMAN
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 14, 1979
SAN FRANCISCO, CALIFORNIA
ATTACHMENT
AL:VAG
APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND
ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN
ORDER TO EFFECTUATE THE POLICIES OF EXECUTIVE ORDER
11491, AS AMENDED LABOR-MANAGEMENT RELATIONS IN THE
FEDERAL SERVICE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT CHANGE POLICIES GOVERNING TRAFFIC AND PARKING VIOLATIONS
AT THE MALMSTROM AIR FORCE BASE WITHOUT FIRST AFFORDING THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL UNION 2609, NOTICE
AND AN OPPORTUNITY TO MEET AND CONFER CONCERNING A PROPOSED CHANGE IN
SUCH POLICIES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
WE WILL RESCIND THE DECISION MADE IN MAY 1978 TO IMPLEMENT THE
MAGISTRATE SYSTEM CONCERNING TRAFFIC AND PARKING VIOLATIONS AT MALMSTROM
AIR FORCE BASE.
WE WILL, UPON REQUEST, MEET AND CONFER WITH THE AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL UNION 2609, CONCERNING ANY
PROPOSED CHANGE IN POLICY REGARDING TRAFFIC AND PARKING VIOLATIONS AT
THE BASE.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY WHOSE ADDRESS
IS: ROOM 2200, FEDERAL OFFICE BUILDING, 911 WALNUT STREET, KANSAS CITY,
MISSOURI 64106.
/1/ FEDERAL RAILROAD ADMINISTRATION, 4 A/SLMR 497, 500-501, A/SLMR
NO. 418(1974).
/2/ TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL AND
NAVAL PUBLIC WORKS CENTER, NORFOLK, VIRGINIA, 1 FLRC 431, FLRC NO.
71A-56(1973); OVERSEAS EDUCATION ASSOCIATION, INC. AND DEPARTMENT OF
DEFENSE, OFFICE OF DEPENDENT SCHOOLS, FLRC NO. 76A-142, REPORT NO. 143
(FEBRUARY 28, 1978); AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, COUNCIL 127 AND STATE OF OHIO, AIR NATIONAL GUARD, FLRC NO.
77A-114, REPORT NO. 156 (NOVEMBER 9, 1978).
/3/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR THE APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR
THE RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD
ARISEN UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/4/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
SENATE AS A MEMBER OF THE AUTHORITY.
/5/ FURTHER, UNTIL JUST PRIOR TO THE DAY OF THE HEARING IN THIS
MATTER THE "POINT SYSTEM" HAD NOT BEEN APPLIED TO ANY INFRACTIONS SINCE
THE INSTITUTION OF THE MAGISTRATE SYSTEM; HOWEVER, ONCE THIS FACT WAS
DISCOVERED THE BASE COMMANDER WAS ADVISED THAT IT WAS ERRONEOUS TO
DISCONTINUE APPLICATION OF THE POINT SYSTEM, AND HE INSTRUCTED THE BASE
POLICE TO APPLY THE POINT SYSTEM RETROACTIVELY TO THOSE INFRACTIONS THAT
HAD OCCURRED SINCE INSTITUTION OF THE MAGISTRATE SYSTEM (IN ADDITION TO
WHATEVER PENALTIES OR OTHER DISPOSITION HAD OCCURRED THROUGH THE
MAGISTRATE SYSTEM).
/6/ FOR EXAMPLE, SEE PARAGRAPHS 1 AND 1(B) OF AF REGULATION 110-15 AS
IT INCORPORATES THE "PEN AND INK CHANGES" INDICATED IN RESPONDENT'S EX.
1:
1. . . . PETTY INFRACTIONS, SUCH AS MINOR TRAFFIC VIOLATIONS
COMMITTED ON-BASE, MAY BE
DISPOSED OF UNDER THE DISCIPLINARY AND ADMINISTRATIVE AUTHORITY OF
THE COMMANDER.
* * * *
B. AN INSTALLATION COMMANDER MAY DETERMINE WHETHER CHARGES WILL BE
PREFERRED AGAINST
CIVILIANS FOR TRIAL BEFORE UNITED STATES MAGISTRATES . . . THE
COMMANDER MAY MAKE A BLANKET
DETERMINATION THAT ADMINISTRATIVE DISPOSITION OF CERTAIN OFFENSES
COMMITTED BY CIVILIANS
ON-BASE IS INADEQUATE AND INAPPROPRIATE AND THAT ALL SUCH OFFENSES
WILL BE REFERRED TO TRIAL
BY A UNITED STATES MAGISTRATE . . . . ONCE A CATEGORY OF OFFENSES
HAS BEEN IDENTIFIED AS
APPROPRIATE FOR REFERENCE TO A MAGISTRATE, ALL CIVILIAN OFFENDERS IN
THAT CLASS SHOULD BE SO
REFERRED . . .