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The decision of the Authority follows:
8 FLRA No. 101
IOWA NATIONAL GUARD AND NATIONAL
GUARD BUREAU
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3080
Charging Party
Case No. 73-CA-106
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE
ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT IOWA NATIONAL
GUARD HAD ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES UNDER EXECUTIVE
ORDER 11491, AS AMENDED, AND RECOMMENDING THAT IT CEASE AND DESIST
THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION. NO EXCEPTIONS WERE FILED
WITH RESPECT TO SUCH FINDING. IN ADDITION, THE JUDGE RECOMMENDED THAT
CERTAIN OTHER ALLEGED UNFAIR LABOR PRACTICES BE DISMISSED. THE GENERAL
COUNSEL AND THE CHARGING PARTY FILED EXCEPTIONS TO THE JUDGE'S DECISION,
AND THE RESPONDENTS FILED OPPOSITIONS TO SUCH EXCEPTIONS. THEREAFTER,
THE GENERAL COUNSEL FILED "CROSS EXCEPTIONS TO THE RESPONDENT'S
OPPOSITION."
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 2423.1 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.1). 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 (THE STATUTE).
THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2423.29) AND SECTION 7135(B) OF THE STATUS, 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, /1/ AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS BY THE
RESPONDENTS, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS. /2/
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE,
THE AUTHORITY HEREBY ORDERS THAT THE IOWA NATIONAL GUARD SHALL:
1. CEASE AND DESIST FROM:
(A) BYPASSING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3080, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, OR
ANY OTHER EXCLUSIVE REPRESENTATIVE, AND DEALING DIRECTLY WITH UNIT
EMPLOYEES CONCERNING PERSONNEL POLICIES AND PRACTICES AND MATTERS
AFFECTING WORKING CONDITIONS.
(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 IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) POST AT ITS FACILITIES AT THE IOWA NATIONAL GUARD, 185TH TACTICAL
FIGHTER GROUP (ANG), SIOUX CITY MUNICIPAL AIRPORT, SERGEANT BLUFFS,
IOWA, 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 COMMANDER, 185TH TACTICAL FIGHTER GROUP (ANG) 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
COMMANDER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE
NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION VII, 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 FURTHER ORDERED THAT, IN ALL OTHER RESPECTS, THE COMPLAINT IN
CASE NO. 73-CA-106, BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., MAY 7, 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 BYPASS THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3080, THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, AND
DEAL DIRECTLY WITH UNIT EMPLOYEES CONCERNING PERSONNEL POLICIES AND
PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
(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, REGION VII, FEDERAL LABOR RELATIONS AUTHORITY,
FEDERAL BUILDING & U.S. CUSTOMS HOUSE, 1531 STOUT STREET, SUITE 301,
DENVER, COLORADO 80202, AND WHOSE TELEPHONE NUMBER IS (816) 374-2199.
-------------------- ALJ$ DECISION FOLLOWS --------------------
DONALD L. BRENEMAN
FOR THE RESPONDENT
NICHOLAS J. LOBURGIO, ESQUIRE
JOHN J. RUBIN, ESQUIRE
FOR THE GENERAL COUNSEL
BEFORE: GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS CASE AROSE AS A RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT
FILED BY THE REGIONAL DIRECTOR, SEVENTH REGION, FEDERAL LABOR RELATIONS
AUTHORITY, KANSAS CITY, MISSOURI, AGAINST THE IOWA NATIONAL GUARD AND
NATIONAL GUARD BUREAU (RESPONDENTS), BASED ON A CHARGE FILED BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3080 (CHARGING PARTY OR
UNION).
THE AMENDED COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENTS
VIOLATED SECTIONS 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED
(THE ORDER), BY (1) UNILATERALLY CHANGING CONDITIONS OF EMPLOYMENT BY
REQUIRING, AS A PRE-CONDITION OF BEING DEPLOYED TO PANAMA, THAT UNIT
EMPLOYEES REFRAIN FROM EXERCISING A CONTRACTUAL RIGHT TO WEAR CIVILIAN
ATTIRE, AND (2) BY BY-PASSING THE UNION AND HOLDING A MEETING WITH
EMPLOYEES CONCERNING THE EXERCISE OF THEIR CONTRACTUAL RIGHT TO WEAR
CIVILIAN ATTIRE. THE COMPLAINT ALSO ALLEGED THAT RESPONDENTS VIOLATED
SECTION 19(A)(1) OF THE ORDER BY THREATENING EMPLOYEES THAT, IF THEY
EXERCISED THEIR CONTRACTUAL RIGHT TO WEAR CIVILIAN ATTIRE, THEY WOULD BE
REPLACED ON THE DEPLOYMENT TO PANAMA AND WOULD NOT RECEIVE FUTURE
TEMPORARY DUTY ASSIGNMENTS OR GOOD TRIPS. RESPONDENTS DENIED THE
ALLEGATIONS.
A HEARING WAS HELD IN THIS MATTER IN SIOUX CITY, IOWA. THE
RESPONDENTS AND THE GENERAL COUNSEL WERE REPRESENTED BY COUNSEL AND
AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, EXAMINE
AND CROSS-EXAMINE WITNESSES, AND FILE POST-HEARING BRIEFS.
BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
FINDINGS OF FACT
1. THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
3080, HAS BEEN RECOGNIZED AS THE EXCLUSIVE REPRESENTATIVE OF
NON-SUPERVISORY CIVILIAN TECHNICIAN EMPLOYEES OF THE IOWA AIR NATIONAL
GUARD, 185TH TACTICAL FIGHTER GROUP (ANG), SIOUX CITY MUNICIPAL AIRPORT,
SERGEANT BLUFF, IOWA SINCE JULY 16, 1970. THE UNION AND THE IOWA
NATIONAL GUARD, ADJUTANT GENERAL OF IOWA, HAVE HAD A COLLECTIVE
BARGAINING AGREEMENT SINCE 1975.
2. ON JUNE 22, 1978 THE UNION AND RESPONDENT IOWA NATIONAL GUARD
SIGNED A CHANGE TO THEIR COLLECTIVE BARGAINING AGREEMENT ENTITLED,
"ARTICLE 33, WEAR OF STANDARDIZED CIVILIAN ATTIRE." THE CHANGE INVOLVED
THE OPTION OF WEARING STANDARD CIVILIAN ATTIRE AND PROVIDED, IN RELEVANT
PART, AS FOLLOWS:
SECTION 1. SIOUX CITY AIR NATIONAL GUARD TECHNICIANS WHILE
PERFORMING THEIR DAY-TO-DAY
TECHNICIAN DUTIES SHALL HAVE THE OPTION OF WEARING THE AGREED UPON
STANDARD CIVILIAN ATTIRE OR
THE MILITARY UNIFORM. TECHNICIANS MUST ELECT THEIR UNIFORM OPTION ON
THE ANNIVERSARY DATE OF
THE CONTRACT.
* * * *
SECTION 6. THE WEAR OF THE MILITARY UNIFORM IN MANDATORY ON THE
FOLLOWING OCCASIONS:
A. DURING TRAVEL IN OFFICIAL TDY STATUS IN MILITARY VEHICLES OR
AIRCRAFT.
B. WHILE REPRESENTING THE COMMAND AT PUBLIC FUNCTIONS, I.E.,
PARADES, INAUGURATIONS,
CEREMONIES, OR OTHER CIVIC ACTIVITIES.
C. SECURITY PERSONNEL.
D. WHEN PERFORMING RECRUITING DUTIES.
E. DURING INSPECTIONS CONDUCTED BY HIGHER HEADQUARTERS, I.E.,
ORI/MEI.
F. DURING BASE DEFENSE FORCE EXERCISES.
G. DURING SCHEDULED UNIT TRAINING ASSEMBLIES, AND DURING ANNUAL
FIELD TRAINING AT OTHER
THAN HOME STATION.
(JOINT EX. 1; TR. 34). ON SEPTEMBER 28, 1978 DESIGNATED BARGAINING
UNIT PERSONNEL WERE AUTHORIZED TO WEAR THE STANDARD CIVILIAN ATTIRE
EFFECTIVE OCTOBER 2, 1978. (JOINT EX. 5).
3. ON AUGUST 16, 1978 THE NATIONAL GUARD BUREAU ISSUED AN OPERATIONS
ORDER CALLING FOR THE ROTATIONAL DEPLOYMENT OF A DETACHMENT OF FOUR
FIGHTER-TYPE AIRCRAFT TO HOWARD AIR FORCE BASE, CANAL ZONE TO SUPPORT
U.S. AIR FORCE COMMITMENTS. (JOINT EX. 6). THE AIRCRAFT WOULD PROVIDE
CLOSE AIR SUPPORT TO ARMED FORCES IN PANAMA FOR THE PROTECTION OF THE
PANAMA CANAL. (TR. 85). ONCE IN THE CANAL ZONE, OPERATIONAL CONTROL OF
THE DEPLOYED AIR NATIONAL GUARD UNITS WOULD BE UNDER THE U.S. AIR FORCE.
(JOINT EX. 6). OPERATIONAL CONTROL INVOLVED DIRECTING PERSONNEL IN THE
ASSIGNMENT OF WORK AND DUTIES TO BE PERFORMED. (TR. 146).
ADMINISTRATIVE CONTROL, SUCH AS PAY AND LEAVE, REMAINED WITH THE AIR
NATIONAL GUARD UNITS DEPLOYED. THE NICKNAME OF THE PLAN WAS "CORONET
COVE." (JOINT EX. 6; TR. 146).
4. THE DEPLOYMENT DID NOT REQUIRE THAT THE 185TH TACTICAL FIGHTER
GROUP GO AS A COMPLETE UNIT. IN AUGUST 1978 BARGAINING UNIT MEMBERS
WERE CONTACTED INDIVIDUALLY AND ASKED WHETHER OR NOT THEY DESIRED TO
VOLUNTEER FOR AN OCTOBER 1978 DEPLOYMENT AS A TEMPORARY DUTY ASSIGNMENT.
IF AN INDIVIDUAL CHOSE TO VOLUNTEER, HE WAS ALSO ALLOWED HIS CHOICE OF
GOING IN MILITARY STATUS, AS PART OF HIS FIFTEEN DAYS OF ANNUAL MILITARY
TRAINING AS A MILITARY MEMBER OF THE AIR NATIONAL GUARD, OR IN HIS
CIVILIAN TECHNICIAN STATUS, OR IN A MIXTURE OF THE TWO. (TR. 36,
52-53, 57, 64-65, 142-143).
5. IT HAD BEEN NATIONAL GUARD BUREAU POLICY AND PRACTICE FOR
CIVILIAN TECHNICIANS TO WEAR THE MILITARY UNIFORM WHILE ON TEMPORARY
DUTY ASSIGNMENTS OUTSIDE THE CONTINENTAL UNITED STATES. (TR. 127, 131).
THIS POLICY, HOWEVER, CAME INTO EXISTENCE PRIOR TO THE 1977
DETERMINATION OF THE FEDERAL LABOR RELATIONS COUNCIL THAT NO COMPELLING
NEED EXISTED FOR A NATIONAL GUARD BUREAU REGULATION REQUIRING ALL
NATIONAL GUARD TECHNICIANS WORKING IN THEIR TECHNICIAN STATUS UNDER
VIRTUALLY ALL CIRCUMSTANCES TO WEAR MILITARY UNIFORMS AND FINDING THAT
CERTAIN UNION PROPOSALS IN THAT CASE WERE PROPERLY SUBJECT TO
NEGOTIATION. (TR. 131) /3/
6. THE OCTOBER 1978 DEPLOYMENT WAS TO BE THE FIRST DEPLOYMENT OF THE
185TH TACTICAL FIGHTER GROUP TO PANAMA. (TR. 83). IN EARLY OCTOBER
1978, SHORTLY BEFORE THE DEPLOYMENT, TWO TECHNICIANS OF THE 185TH
TACTICAL FIGHTER GROUP WERE ASSIGNED TO TEMPORARY DUTY FOR TRAINING IN
TUCSON, ARIZONA. THEY WORE THE MILITARY UNIFORM ON THIS ASSIGNMENT.
(TR. 90). HOWEVER, WHEN THE UNION FOUND OUT ABOUT IT AND OBJECTED,
PERSONNEL WERE SUBSEQUENTLY SENT TO ANOTHER BASE IN THE CONTINENTAL
UNITED STATES FOR TRAINING WHERE THE CIVILIAN UNIFORMS COULD BE WORN.
(TR. 90, 95, 113).
7. AS OF EARLY OCTOBER 1978 BOTH MANAGEMENT OF THE 185TH TACTICAL
FIGHTER GROUP AND MEMBERS OF THE BARGAINING UNIT ASSUMED THAT THOSE
GOING ON THE DEPLOYMENT TO PANAMA AS CIVILIAN TECHNICIANS ON TEMPORARY
DUTY STATUS WOULD WEAR THE STANDARD CIVILIAN ATTIRE. (TR. 28, 53, 71,
99, 108, 114). ON APPROXIMATELY OCTOBER 20, 1978, EIGHT OR NINE DAYS
BEFORE THE DEPLOYMENT WAS TO BEGIN, LLOYD A. PIPPETT, CHIEF OF
MAINTENANCE, CONTACTED THE AIR NATIONAL GUARD LIAISON OFFICER IN PANAMA,
COLONEL RICHARD LAW, TO INFORM HIM THAT TECHNICIANS WOULD BE WEARING THE
CIVILIAN UNIFORM. (TR. 108).
8. COLONEL LAW SUBSEQUENTLY CONTACTED CURTIS N. METCALF, DEPUTY
CHIEF, PLANS, AIR NATIONAL GUARD, NATIONAL GUARD BUREAU, AND STATED THAT
HE HAD INFORMED THE U.S. AIR FORCE WING COMMANDER IN PANAMA, WHO WOULD
ADMINISTER AND SUPPORT THE AIR NATIONAL GUARD DEPLOYMENT, OF THE
INTENTION OF THE SIOUX CITY AIR NATIONAL GUARD TO HAVE CIVILIAN
TECHNICIANS WEAR THE STANDARD CIVILIAN ATTIRE. COLONEL LAW ADVISED MR.
METCALF THAT THE AIR FORCE WING COMMANDER DID NOT "PARTICULARLY LIKE
TECHNICIANS DEPLOYING IN CIVILIAN UNIFORM," "THAT BECAUSE OF THE TENSE
SITUATION OF THE NEGOTIATIONS FOR PANAMA BEING GIVEN BACK TO THE
PANAMANIANS, THERE WAS SO MUCH UNREST, THAT PERSONNEL SHOULD BE IN
MILITARY UNIFORM DURING DUTY HOURS IN CASE THERE WAS A REQUIREMENT FOR
THEM TO BE USED." (TR. 127-128)
9. AS A RESULT OF THIS INFORMATION, MR. METCALF SENT A MESSAGE, ON
OCTOBER 25, 1978, OR 241930Z, TO ALL FOURTEEN TACTICAL FIGHTER UNITS
INVOLVED IN THE DEPLOYMENT, INCLUDING RESPONDENT IOWA NATIONAL GUARD,
WHICH PROVIDED, IN PART, AS FOLLOWS:
SUBJECT: STATUS OF ANG PERSONNEL SUPPORTING CORONET COVE
1. UNITS SUPPORTING CORONET COVE ARE PROVIDED THE FOLLOWING GUIDANCE
PERTAINING TO STATUS OF DEPLOYED INDIVIDUALS:
A. ALL PILOTS WILL BE IN A MILITARY STATUS.
B. OTHER PERSONNEL SHOULD BE IN MILITARY STATUS TO THE MAXIMUM
EXTENT POSSIBLE.
2. . . . PERSONNEL OTHER THAN PILOTS MAY BE AUTHORIZED TO
PARTICIPATE IN AN AIR TECHNICIAN STATUS PROVIDING THE FOLLOWING
CONDITIONS CAN BE MET:
A. ONLY MINIMUM ESSENTIAL PARTICIPATION IN AIR TECHNICIAN STATUS IS
AUTHORIZED.
B. INDIVIDUALS PARTICIPATING IN AIR TECHNICIAN STATUS ARE PREBRIEFED
AND AGREE TO WEAR THE
PROPER MILITARY UNIFORM IN ACCORDANCE WITH AFR 35-10 DURING DUTY
HOURS FOR THE FULL
DEPLOYMENT.
3. SHOULD UNITS OR INDIVIDUALS NOT BE ABLE TO COMPLY WITH 2A AND 2B
THE FOLLOWING ACTION SHOULD BE TAKEN:
A. ADVISE NGB/XO OF THE NUMBERS OF PERSONNEL AND AFSC'S WHICH ARE
NOT AVAILABLE TO DEPLOY
UNDER THIS CRITERIA A MINIMUM OF 30 DAYS IN ADVANCE.
B. COORDINATE WITH NGB/XO FOR AUGMENTATION OF THESE AFSC'S FROM
OTHER A-7 UNITS. (JOINT
EX. 3).
10. ON OR ABOUT OCTOBER 25, 1978, DALE PRICE, LOCAL UNION PRESIDENT,
UPON HEARING RUMORS THAT MILITARY UNIFORMS WERE GOING TO BE REQUIRED ON
THE DEPLOYMENT, ARRANGED A MEETING WITH COLONEL WARREN G. NELSON,
COMMANDER, 185TH TACTICAL FIGHTER GROUP. MR. GERALD BREYFOGLE,
VICE-PRESIDENT, LOCAL 3080, WAS ALSO PRESENT. (TR. 35, 51, 73-74).
COL. NELSON TOLD THE UNION OFFICERS THAT A NATIONAL GUARD BUREAU
DIRECTIVE REQUIRED THAT PERSONNEL WHO DEPLOY TO PANAMA DO SO IN MILITARY
UNIFORMS, AND IF ENOUGH PERSONNEL WOULD NOT DO SO, REQUESTS FOR
REPLACEMENTS WOULD BE MADE TO OTHER UNITS. MR. PRICE THEN ASKED FOR A
MEETING ON MANAGEMENT'S TIME SO THAT COL. NELSON COULD BRIEF THE UNIT
EMPLOYEES WHO WERE GOING ON THE DEPLOYMENT ABOUT THE UNIFORM
REQUIREMENT. (TR. 35-37; 51-52; 73-74).
11. A MEETING OF UNIT EMPLOYEES WAS HELD THE SAME DAY. MR. PRICE
CALLED THE MEETING TO ORDER AND STATED THAT COL. NELSON WOULD EXPLAIN
THE UNIFORM ISSUE. COL. NELSON PRESENTED ESSENTIALLY THE SUBSTANCE OF
THE NATIONAL GUARD BUREAU MESSAGE. COL. PIPPETT ALSO SPOKE. HE STATED
THAT, SINCE THERE WERE ONLY FOUR DAYS LEFT BEFORE THE ACTUAL DEPLOYMENT,
MANAGEMENT WOULD HAVE TO KNOW VERY SOON IF PERSONNEL WERE NOT GOING IN
MILITARY UNIFORM, SO REPLACEMENTS COULD BE FOUND FOR THE INDIVIDUALS WHO
REFUSED TO GO. THE UNION INFORMED COL. PIPPETT THAT A VOTE WOULD BE
TAKEN ON THE ISSUE.
12. AFTER COL. PIPPETT LEFT, MR. PRICE BROUGHT THE MEETING TO ORDER
AND ASKED FOR A VOTE ON WHETHER EMPLOYEES WOULD DEPLOY IN A MILITARY
UNIFORM OR IN THE CIVILIAN ATTIRE. THE EMPLOYEES VOTED TO DEPLOY IN
CIVILIAN ATTIRE. (TR. 37-38, 53-55).
13. AFTER THIS VOTE, MR. PRICE AND MR. BREYFOGLE ADVISED COL.
NELSON OF THE OUTCOME OF THE VOTE AND OF THE STANCE OF THE UNION IN NOT
GOING TO PANAMA IN THE MILITARY UNIFORM. COL. NELSON SAID HE WAS
DISAPPOINTED AND WOULD HAVE TO CALL THE NATIONAL GUARD BUREAU AND INFORM
THEM TO GIVE THE MISSION TO ANOTHER UNIT, OR BACK TO THE AIR FORCE.
(TR. 38).
14. ON THAT SAME DATE, PRELIMINARY TO A REGULARLY SCHEDULED SESSION
FOR THE NEGOTIATION OF A NEW CONTRACT, LT. COL. PIPPETT, THE MANAGEMENT
CHIEF NEGOTIATOR, ADVISED THE UNION NEGOTIATING TEAM THAT SINCE HE WOULD
BE BUSY CALLING AROUND LOCATING REPLACEMENTS FOR ANYONE WHO DID NOT WANT
TO GO TO PANAMA, HE WAS RECESSING THE NEGOTIATIONS. UNDER THE GROUND
RULES, EITHER PARTY COULD REQUEST A RECESS. (TR. 24, 60-61, 110-112,
118).
15. DESPITE THE UNION VOTE, AS THE DAY WORE ON, UNION VICE PRESIDENT
BREYFOGLE OBSERVED STRONG DIFFERENCES OF OPINION AMONG UNIT PERSONNEL AS
TO WHETHER OR NOT THEY SHOULD AGREE TO DEPLOY IN THE MILITARY UNIFORM.
(TR. 55-56). THAT EVENING HE DRAFTED THE FOLLOWING LETTER TO UNION
PRESIDENT PRICE:
AFTER MUCH REVIEW AND DELIBERATION OF THE STATEMENTS MADE TO US BY
LT. COL. WARREN
G. NELSON, I HAVE REACHED THE FOLLOWING CONCLUSIONS. I FEEL THAT IN
ORDER TO; 1. PROMOTE
BETTER RELATIONS BETWEEN MANAGEMENT AND LOCAL 3080, 2. PROMOTE A
FAVORABLE IMAGE OF THE 185TH
TO THE NATIONAL GUARD BUREAU AND THE U.S. AIR FORCE AND 3. TO FULFILL
OUR PREVIOUSLY
VOLUNTEERED COMMITMENTS TO THE PANAMA EXERCISE; THAT ALL PERSONNEL,
WHO WERE TO PARTICIPATE IN
THE EXERCISE IN A TECHNICIAN STATUS AND CIVILIAN ATTIRE, SHOULD BE
RELEASED FROM THEIR
OBLIGATION TO WEAR THEIR CIVILIAN ATTIRE, AS REQUIRED BY ARTICLE 33
OF LOCAL 3080'S NEGOTIATED
CONTRACT, WITHOUT REPRISAL OR CRITICISM AND BE ALLOWED TO FULFILL
THEIR PREVIOUS COMMITMENTS
TO THE PANAMA EXERCISE EVEN THROUGH IT ENTAILS WEARING THE MILITARY
UNIFORM. (GENERAL COUNSEL
EX. 2).
16. MR. PRICE APPROVED THE LETTER ABOUT 7:30 A.M. THE NEXT DAY, AND
HE AND MR. BREYFOGLE THEN TOOK IT TO COL. NELSON, WHO EXPRESSED HIS
APPRECIATION. (TR. 59).
17. ABOUT THIS SAME TIME, TERRENCE MARTIN, BRANCH CHIEF,
ORGANIZATIONAL MAINTENANCE SHOP, CALLED A MEETING WITH HIS UNIT
EMPLOYEES FOR THE PURPOSE OF OBTAINING A COUNT OF WHO WAS GOING IN
MILITARY UNIFORM. (TR. 100). MR. MARTIN HAD ATTENDED THE GENERAL
MEETING THE PREVIOUS DAY. MARTIN TOLD HIS EMPLOYEES THAT THEY WOULD BE
REPLACED IF THEY DID NOT WEAR MILITARY UNIFORMS, AND THAT THE UNIT WOULD
BE PUT ON THE "BACK-BURNER" BY THE NATIONAL GUARD BUREAU FOR FUTURE GOOD
TRIPS. HE URGED THEM TO GO ON THE TRIP TO PANAMA IN MILITARY ATTIRE
AND, IF THEY FELT STRONGLY, TO FILE A GRIEVANCE ABOUT IT LATER. HE
SAID, "WHO IS GOING ON VACATION WITH ME," AND INTERROGATED EACH OF HIS
EMPLOYEES WHO HAD PREVIOUSLY VOLUNTEERED AS TO WHETHER HE WAS GOING TO
GO. (TR. 18-19; 99-106).
18. THE DEPLOYMENT TOOK PLACE ON OCTOBER 29, 1978 WITH A TOTAL OF 4
PERSONNEL GOING IN MILITARY STATUS, 9 PERSONNEL GOING IN CIVILIAN
TECHNICIAN STATUS IN MILITARY UNIFORM, AND 25 PERSONNEL DIVIDING THEIR
TIME INTO SIX DAYS CIVILIAN TECHNICIAN STATUS AND TEN DAYS MILITARY
STATUS. (TR. 47).
19. THE DUTIES PERFORMED BY THE CIVILIAN TECHNICIANS WHILE IN PANAMA
WERE NOT ESSENTIALLY DIFFERENT FROM THOSE PERFORMED AT THEIR NORMAL DUTY
STATION. (TR. 45-46; 87-88; 92; 124-125). HOWEVER, THE
CIRCUMSTANCES WERE DIFFERENT. IT WAS AN OPERATIONAL MISSION FOR THE
U.S. AIR FORCE. AS NOTED, OPERATIONAL CONTROL, INVOLVING DIRECTING
PERSONNEL AND THE ASSIGNMENT OF WORK, WAS UNDER THE CONTROL OF THE U.S.
AIR FORCE. (JOINT EX. 6; TR. 81, 82, 146). THE DEPLOYMENT WAS SIMILAR
TO AN OPERATIONAL READINESS INSPECTION (ORI), EXCEPT THAT DURING AN ORI
THE GUARD PERFORMS SIMULATED TRAINING EXERCISES UNDER THE INSPECTION OF
THE U.S. AIR FORCE, WHILE A DEPLOYMENT IS THE PERFORMANCE OF AN ACTUAL
MILITARY MISSION UNDER THE DIRECTION OF THE U.S. AIR FORCE. (TR. 83,
85, 87-88, 138, 145). THE PANAMA DEPLOYMENT WAS THE FIRST DEPLOYMENT IN
TEN YEARS FOR THE 185TH TACTICAL FIGHTER GROUP WHICH WAS NOT STRICTLY
FOR TRAINING. (TR. 138).
20. ON JANUARY 25, 1979 LOCAL 3080 AND RESPONDENT IOWA NATIONAL
GUARD ENTERED INTO A MEMORANDUM OF RECORD WHICH STATES THAT NEGOTIATIONS
ON ARTICLE 33, SECTION 6, CONCERNING MANDATORY WEAR OF THE MILITARY
UNIFORM, WILL BE RE-OPENED IF THIS UNFAIR LABOR PRACTICE CASE "DOES NOT
SATISFACTORILY RESOLVE THE WEARING OF THE CIVILIAN UNIFORM DURING
PERIODS OF TDY." (JOINT EX. 4).
21. THEREAFTER, ON JANUARY 29, 1979, LOCAL 3080 AND RESPONDENT IOWA
NATIONAL GUARD ENTERED INTO A NEW COLLECTIVE BARGAINING AGREEMENT.
ARTICLE 33, SECTION 6 G PROVIDES THAT THE WEAR OF THE MILITARY UNIFORM
IS MANDATORY "DURING PERIODS OF TDY OUTSIDE CONTINENTAL USA IF
REQUIRED." (JOINT EX. 2). THE MEANING OF THIS CONTRACTUAL PROVISION IS
DISPUTED. (TR. 22, 48, 121).
DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
THE GENERAL COUNSEL ALLEGES THAT RESPONDENTS' UNILATERALLY CHANGED
CONDITIONS OF EMPLOYMENT CONTAINED IN THE COLLECTIVE BARGAINING
AGREEMENT. THE INITIAL QUESTION, THEREFORE, IS WHETHER THE COLLECTIVE
BARGAINING AGREEMENT ESTABLISHED A CONDITION OF EMPLOYMENT WHEREBY UNIT
EMPLOYEES HAD THE RIGHT TO WEAR THE STANDARD CIVILIAN ATTIRE WHILE
PERFORMING THEIR TECHNICIAN DUTIES ON A VOLUNTARY TEMPORARY DUTY
ASSIGNMENT OUTSIDE THE CONTINENTAL UNITED STATES IN CONNECTION WITH A
DEPLOYMENT UNDER THE OPERATIONAL CONTROL OF THE U.S. AIR FORCE.
THE AGREEMENT PROVIDES THAT SIOUX CITY AIR NATIONAL GUARD TECHNICIANS
"WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN DUTIES SHALL HAVE THE
OPTION OF WEARING THE AGREED UPON STANDARD CIVILIAN ATTIRE . . . ." THE
AGREEMENT ALSO SPECIFIES THAT THE MILITARY UNIFORM IS MANDATORY ON
CERTAIN OCCASIONS INCLUDING, "DURING INSPECTIONS CONDUCTED BY HIGHER
HEADQUARTERS, I.E. ORI/MEI."
RESPONDENTS ARGUE THAT THE CONTRACT ONLY PERMITTED UNIT PERSONNEL THE
OPTION OF WEARING STANDARD CIVILIAN ATTIRE WHILE PERFORMING THEIR DAY TO
DAY TECHNICIAN DUTIES; THAT THERE WAS NO RIGHT TO TEMPORARY DUTY; THAT
THE DUTIES PERFORMED BY TECHNICIANS WHO VOLUNTEERED FOR TEMPORARY DUTY
FOR THE DEPLOYMENT WERE NOT DAY TO DAY DUTIES; THAT THE 185TH TACTICAL
FIGHTER WING HAD NOT BEEN ON SUCH A DEPLOYMENT FOR TEN YEARS; THAT THE
TECHNICIANS WERE UNDER THE DIRECTION AND CONTROL OF THE AIR FORCE; AND
THAT THE REQUIREMENT TO WEAR THE MILITARY UNIFORM ON THIS DEPLOYMENT
FELL WITHIN THE SCOPE OF RIGHTS RESERVED TO MANAGEMENT UNDER SECTION
12(B)(5) OF THE ORDER.
IT IS WELL RECOGNIZED THAT A PARTY TO A NEGOTIATED AGREEMENT ACTS AT
ITS PERIL IN INTERPRETING AND APPLYING SUCH AGREEMENT. THUS, IF THE
RESPONDENTS' INTERPRETATION OF THE NEGOTIATED AGREEMENT WAS SUCH THAT IT
RESULTED IN A CLEAR AND PATENT BREACH OF THE TERMS OF THE AGREEMENT,
THEN SUCH INTERPRETATION COULD RISE TO THE LEVEL OF AN UNFAIR LABOR
PRACTICE. ON THE OTHER HAND, IF RESPONDENTS' INTERPRETATION WAS
ARGUABLY WITHIN THE TERMS OF THE NEGOTIATED AGREEMENT, THEN SUCH
INTERPRETATION WOULD MERELY BE A MATTER OF CONTRACT INTERPRETATION TO BE
RESOLVED THROUGHT THE PARTIES' GRIEVANCE AND ARBITRATION MACHINERY.
OKLAHOMA CITY AIR LOGISTICS CENTER; TINKER AIR FORCE BASE, OKLAHOMA, 3
FLRA NO. 82(1980).; AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1931 AND DEPARTMENT OF THE NAVY, NAVAL WEAPONS STATION,
CONCORD, CALIFORNIA, CASE NO. O-NG-55, 2 FLRA 19(1979); DEPARTMENT OF
THE NAVY, NAVAL AIR REWORK FACILITY, A/SLMR NO. 1089, 8 -A/SLMR 815,
816(1978) AND CASES CITED THEREIN. I CONCLUDE THAT, UNDER ALL THE
CIRCUMSTANCES, THE RESPONDENT' ACTION DID NOT RISE TO THE LEVEL OF A
CLEAR AND PATENT BREACH OF THE AGREEMENT AND AN UNFAIR LABOR PRACTICE
UNDER THE ORDER, AND SUCH CONTRACTUAL DISPUTE SHOULD BE RESOLVED BY THE
MEANS THE PARTIES THEMSELVES HAVE ADOPTED FOR THE RESOLUTION OF DISPUTES
OVER THE MEANING OF PROVISIONS IN THE AGREEMENT. IT MUST BE PRESUMED,
ABSENT CLEAR EVIDENCE TO THE CONTRARY, THAT THE GRIEVANCE AND
ARBITRATION PROCEDURES CONTAINED IN A COLLECTIVE BARGAINING AGREEMENT
CAN ADEQUATELY RESOLVE ALL DISPUTES CONCERNING INTERPRETATION AND
APPLICATION OF THAT COLLECTIVE BARGAINING AGREEMENT. CF. SOCIAL
SECURITY ADMINISTRATION, DISTRICT OFFICES IN DENVER, PUEBLO AND GREELY,
COLORADO, ET AL, 3 FLRA NO. 10(1980).
ASSUMING, HOWEVER, THAT THE CASE IS PROPERLY THE SUBJECT OF AN UNFAIR
LABOR PRACTICE PROCEEDING ON THE THEORY THAT IT INVOLVES AN ALLEGED
VIOLATION OF RESPONDENT'S OBLIGATION TO BARGAIN UNDER THE ORDER, THE
RECORD WILL BE CONSIDERED FURTHER ON THAT BASIS.
IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL 127
AND STATE OF OHIO AIR NATIONAL GUARD, FLRC NO. 77A-114, 6 FLRA
705(1978), THE FEDERAL LABOR RELATIONS COUNCIL HELD THAT A REQUIREMENT
FOR AIR NATIONAL GUARD TECHNICIANS TO WEAR THE MILITARY UNIFORM IN THE
NARROW CIRCUMSTANCES PRESENTED BY AN OPERATIONAL READINESS INSPECTION
(ORI) BY THE AIR FORCE FELL WITHIN THE SCOPE OF RIGHTS RESERVED TO
MANAGEMENT UNDER SECTION 12(B)(5) OF THE ORDER AND WAS NONNEGOTIABLE.
THE COUNCIL HELD THAT IT WAS "A 'MEANS' BY WHICH AN AGENCY OPERATION IS
CONDUCTED -- AS REALISTIC A TEST AS IS POSSIBLE OF THE ABILITY OF A
PARTICULAR NATIONAL GUARD UNIT TO PERFORM ITS WARTIME MILITARY MISSION .
. . ." THE RECORD HERE SHOWS THAT THE DEPLOYMENT TO PANAMA BY VARIOUS
AIR NATIONAL GUARD UNITS AS ORDERED BY THE NATIONAL GUARD BUREAU WAS ONE
STEP ABOVE AN ORI AND ONE STEP BELOW ACTIVE DUTY SERVICE AS PART OF THE
AIR FORCE, WHICH WOULD BE THE WARTIME OPERATIONAL MODE OF THE GUARD.
THE DEPLOYMENT WAS NOT SIMPLY A REALISTIC TEST OR EVALUATION, AS IS AN
ORI, BUT WAS THE ACTUAL ACCOMPLISHMENT BY THE AIR NATIONAL GUARD OF A
MILITARY MISSION FOR THE U.S. AIR FORCE AS PART OF THE USE OF TOTAL
FORCES CONCEPT. ACCORDINGLY, IT IS CONCLUDED THAT THE REQUIREMENT TO
WEAR THE MILITARY UNIFORM, IN THE NARROW CIRCUMSTANCES PRESENTED HERE,
DURING A DEPLOYMENT OUTSIDE THE CONTINENTAL UNITED STATES TO FULFILL A
MILITARY MISSION UNDER THE OPERATIONAL CONTROL OF THE U.S. AIR FORCE,
FELL WITHIN THE SCOPE OF THE RIGHTS RESERVED TO MANAGEMENT UNDER SECTION
12(B)(5) OF THE ORDER. IT IS A "MEANS" BY WHICH AN AGENCY OPERATION IS
CONDUCTED AND IS NONNEGOTIABLE.
NOTWITHSTANDING THE FACT THAT A PARTICULAR MANAGEMENT DECISION IS
NONNEGOTIABLE BECAUSE IT FALLS WITHIN THE AMBIT OF SECTION 11(B) OR
12(B) OF THE ORDER, THE AGENCY OR ACTIVITY MUST, NEVERTHELESS, AFFORD AN
EXCLUSIVE REPRESENTATIVE REASONABLE NOTICE AND AN OPPORTUNITY TO BARGAIN
WITH RESPECT TO THE IMPACT AND IMPLEMENTATION OF SUCH ACTION, PRIOR TO
ITS IMPLEMENTATION, WHEN SUCH ACTION EFFECTS A CHANGE IN EXISTING
PERSONNEL POLICIES AND PRACTICES OR WORKING CONDITIONS OF UNIT
EMPLOYEES, PROVIDED IT DOES NOT INTERFERE WITH THE EXERCISE OF THE
RESERVED RIGHTS THEMSELVES. DEPARTMENT OF HEALTH, EDUCATION AND
WELFARE, SOCIAL SECURITY ADMINISTRATION, BRSI, NORTHEASTERN PROGRAM
SERVICE CENTER, A/SLMR NO. 984(1978); U.S. CUSTOMS SERVICE, REGION VII,
LOS ANGELES, CALIFORNIA, A/SLMR NO. 1066(1978); DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE, BROOKHAVEN SERVICE CENTER, 7 A/SLMR
255, A/SLMR NO. 814(1977).
THE RECORD REFLECTS THAT THE UNION, UPON RECEIVING NOTICE OF THE
MILITARY UNIFORM REQUIREMENT, DID NOT REQUEST MORE TIME TO CONSIDER THE
MATTER, OR REQUEST IMPACT AND IMPLEMENTATION BARGAINING. RATHER, IT
INITIALLY ADHERED TO ITS INTERPRETATION OF THE CONTRACT AND ADVISED
MANAGEMENT THAT UNIT MEMBERS WOULD NOT GO ON THE VOLUNTARY ASSIGNMENT IN
MILITARY UNIFORM. LATER, THE UNION ADVISED MANAGEMENT, IN EFFECT, THAT,
UPON RECONSIDERATION, UNIT PERSONNEL WOULD NOT INSIST ON THE UNION'S
INTERPRETATION OF THE CONTRACT AND WOULD GO ON THE DEPLOYMENT IN
MILITARY UNIFORM. IN MY VIEW, THE UNION'S ACTION CONSTITUTED A CLEAR
AND UNMISTAKABLE WAIVER OF ANY BARGAINING RIGHTS IT MAY OTHERWISE HAVE
HAD CONCERNING THE IMPACT AND IMPLEMENTATION OF THE REQUIREMENT.
THE GENERAL COUNSEL'S ARGUMENT THAT COL. NELSON'S STATEMENTS WERE
THREATENING AND COERCIVE AND PREVENTED THE UNION'S WAIVER FROM BEING A
CLEAR AND UNMISTAKABLE ACT OF FREE WILL IS REJECTED. THE STATEMENTS OF
COL. NELSON AND MR. PIPPETT WERE NO MORE THAN A REITERATION OF THE
NATIONAL GUARD BUREAU MESSAGE. THE UNION AND BARGAINING UNIT EMPLOYEES
WERE SIMPLY ADVISED, IN EFFECT, THAT THE DEPLOYMENT, AND THE CONSEQUENT
TEMPORARY DUTY ASSIGNMENT, WAS PURELY VOLUNTARY; THAT THEY COULD
VOLUNTEER TO GO IN THE MILITARY UNIFORM, AS REQUIRED BY THE NATIONAL
GUARD BUREAU, OR THEY COULD STAY AT THEIR NORMAL DUTY STATION PERFORMING
THEIR REGULAR DAY TO DAY TECHNICIAN DUTIES, WITHOUT ANY CHANGE
WHATSOEVER, AND OTHER ARRANGEMENTS WOULD BE MADE TO FULFILL THE MISSION.
IN THIS RESPECT, THE RESPONDENT NATIONAL GUARD BUREAU MESSAGE DID NOT,
IN ANY WAY, ATTEMPT TO SUPERSEDE, MODIFY, OR CHANGE THE TERMS OF THE
PARTIES' NEGOTIATED AGREEMENT. NOR DID IT SEEK TO COMPEL THE PARTIES TO
THAT AGREEMENT TO MAKE ANY CHANGE. IT WAS SENT TO ALL FOURTEEN UNITS TO
BE INVOLVED IN THE DEPLOYMENT, INCLUDING RESPONDENT IOWA NATIONAL GUARD.
THE ONLY ACTION REQUIRED BY UNITS WHO FOUND THAT THEY WOULD BE UNABLE,
FOR WHATEVER REASONS, TO MEET THE REQUIREMENTS WAS TO ADVISE THE
NATIONAL GUARD BUREAU OF THE NUMBERS AND POSITIONS OF PERSONNEL NOT ABLE
TO DEPLOY AND COORDINATE FOR THEIR REPLACEMENT IN PANAMA. COMPARE
DEPARTMENT OF THE NAVY, SUPERVISOR OF SHIPBUILDING, CONVERSION AND
REPAIR, PASCAGOULA, MISSISSIPPI, A/SLMR NO. 390, 4 A/SLMR 324(1974);
NAVAL AIR REWORK FACILITY, PENSACOLA, FLORIDA, A/SLMR NO. 608, 6 A/SLMR
68(1976), FLRC NO. 76A-37, 5 FLRC 303(1977).
FOR THESE SOME REASONS, I CONCLUDE THAT A PREPONDERANCE OF THE
EVIDENCE DOES NOT ESTABLISH THE ALLEGATIONS OF PARAGRAPHS 5(A), (B), (C)
AND 7 OF THE COMPLAINT, THAT RESPONDENT, ACTING BY AND THROUGH TERRENCE
N. MARTIN AND LLOYD A. PIPPETT VIOLATED SECTION 19(A)(1) OF THE ORDER BY
STATEMENTS INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES IN THE
EXERCISE OF RIGHTS ASSURED BY THE ORDER. MOREOVER, AS NOTED, THE
ALLEGED CONTRACTUAL RIGHT IS SUBJECT TO DIFFERING INTERPRETATIONS. THE
ALLEGED INTERFERENCE WITH A CONTRACTUAL RIGHT IN THESE CIRCUMSTANCES
COULD NOT RISE TO THE LEVEL OF INTERFERENCE WITH RIGHTS GUARANTEED BY
THE ORDER AND AN UNFAIR LABOR PRACTICE. CF. DEPARTMENT OF THE AIR
FORCE, BASE PROCUREMENT OFFICE, VANDENBURG AIR FORCE BASE,
CALIFORNIA,A/SLMR NO. 485, 5 A/SLMR 112, FLRC NO. 75A-25, 4 FLRC
587(1976). IT CANNOT BE CONCLUDED FROM THE RECORD THAT THE ACTIONS
TAKEN BY MANAGEMENT IS THE RESPECT, CONCERNING THE WEARING OF THE
MILITARY UNIFORM IN THE NARROW CIRCUMSTANCES PRESENTED HERE, HAD THE
CONSEQUENCE AND EFFECT OF INTERFERING WITH, RESTRAINING, OR COERCING
EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE ORDER, E.G., THE
RIGHT TO FORM, JOIN, OR ASSIST A LABOR ORGANIZATION. COMPARE KENTUCKY
NATIONAL GUARD AND NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
R5-100, 4 FLRA NO. 73(1980).
THE GENERAL COUNSEL ALSO ALLEGES THAT RESPONDENT BY-PASSED THE UNION
IN VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER, WHEN TERRENCE N.
MARTIN HELD A MEETING WITH EMPLOYEES CONCERNING THE WEAR OF CIVILIAN OR
MILITARY ATTIRE.
THE FEDERAL LABOR RELATIONS COUNCIL IN DEPARTMENT OF THE NAVY, NAVAL
AIR STATION, FALLON, NEVADA, A/SLMR NO. 432, FLRA NO. 74A-80, 3 FLRA
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 RECORD REFLECTS THAT, AT THE TIME THIS MEETING WAS HELD, MR.
MARTIN KNEW THAT, AS A RESULT OF THE GENERAL MEETING WITH COL. NELSON,
THE UNION HAD TAKEN A POSITION ON THE UNIFORM ISSUE, OR, AT LEAST, HAD
THE UNIFORM ISSUE UNDER CONSIDERATION. ALTHOUGH IT WAS PROPER FOR MR.
MARTIN TO REITERATE, AS HAD BEEN DONE AT THE GENERAL MEETING, THAT THOSE
TECHNICIANS NOT CHOOSING TO GO IN MILITARY UNIFORM WOULD BE REPLACED,
AND TO OBTAIN A COUNT OF THOSE STILL GOING ON THE DEPLOYMENT IN MILITARY
OR TECHNICIAN STATUS, IT WAS NOT PROPER FROM HIM TO TELL UNIT EMPLOYEES
THAT THE UNIT WOULD BE PUT ON THE "BACK-BURNER" FOR FUTURE GOOD TRIPS;
THAT THEY SHOULD GO IN MILITARY UNIFORM AND FILE A GRIEVANCE LATER; AND
URGE THEM TO GO ON THE DEPLOYMENT -- "ON VACATION" -- WITH HIM. THIS
CONDUCT AMOUNTED TO AN ATTEMPT TO BARGAIN DIRECTLY WITH EMPLOYEES BY
THREATENING AND PROMISING BENEFITS TO EMPLOYEES, AND, INDIRECTLY, URGING
EMPLOYEES TO PUT PRESSURE ON THE REPRESENTATIVE TO CHANGE ITS POSITION.
MR. MARTIN'S ACTIONS CONSTITUTED A BY-PASSING OF THE EXCLUSIVE
REPRESENTATIVE IN DEROGATION OF ITS STATUS AS THE EXCLUSIVE
REPRESENTATIVE OF UNIT EMPLOYEES AND A VIOLATION OF SECTIONS 19(A)(1)
AND (6) OF THE ORDER.
BASED ON THE FOREGOING FINDINGS AND CONCLUSIONS, IT IS RECOMMENDED
THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER:
ORDER /4/
PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135(B) OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE IOWA NATIONAL GUARD SHALL:
1. CEASE AND DESIST FROM:
(A) BY-PASSING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3080, THE
EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE, AND DEALING
DIRECTLY WITH UNIT EMPLOYEES CONCERNING PERSONNEL POLICIES AND
PRACTICES AND MATTERS AFFECTING
WORKING CONDITIONS.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING,
COERCING EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED.
(A) POST AT ITS FACILITIES AT THE IOWA AIR NATIONAL GUARD, 185TH
TACTICAL FIGHTER GROUP
(ANG), SIOUX CITY MUNICIPAL AIRPORT, SERGEANT BLUFFS, IOWA 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 COMMANDER, 185TH TACTICAL FIGHTER GROUP (ANG)
AND SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDER SHALL TAKE
REASONABLE STEPS TO INSURE THAT
SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
(B) PURSUANT TO 5 C.F.R. SECTION 2423.30 NOTIFY THE REGIONAL
DIRECTOR, FEDERAL LABOR
RELATIONS AUTHORITY, SUITE 680; CITY CENTER SQUARE, 1100 MAIN
STREET, KANSAS CITY, MISSOURI IN
WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS
HAVE BEEN TAKEN TO
COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE COMPLAINT IN CASE NO. 73-CA-106, IN
ALL OTHER RESPECTS, BE, AND HEREBY IS DISMISSED.
GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 6, 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 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 BY-PASS THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3080, THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, AND
DEAL DIRECTLY WITH EMPLOYEES CONCERNING PERSONNEL POLICIES AND PRACTICES
AND MATTERS AFFECTING WORKING CONDITIONS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
(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, FEDERAL LABOR RELATIONS AUTHORITY, REGION 7, WHOSE
ADDRESS IS: SUITE 680, CITY CENTER SQUARE, 1100 MAIN STREET, KANSAS
CITY, MISSOURI 64105. TELEPHONE (816) 374-2199.
--------------- FOOTNOTES: ---------------
/1/ THE GENERAL COUNSEL AND THE CHARGING PARTY EXCEPTED TO CERTAIN
CREDIBILITY FINDINGS MADE BY THE JUDGE. THE DEMEANOR OF WITNESSES IS A
FACTOR OF CONSEQUENCE IN RESOLVING ISSUES OF CREDIBILITY, AND THE JUDGE
HAS HAD THE ADVANTAGE OF OBSERVING THE WITNESSES WHILE THEY TESTIFIED.
THE AUTHORITY WILL NOT OVERRULE A JUDGE'S RESOLUTION WITH RESPECT TO
CREDIBILITY UNLESS A CLEAR PREPONDERANCE OF ALL THE RELEVANT EVIDENCE
DEMONSTRATES SUCH RESOLUTION WAS INCORRECT. THE AUTHORITY HAS EXAMINED
THE RECORD CAREFULLY, AND FINDS NO BASIS FOR REVERSING THE JUDGE'S
CREDIBILITY FINDINGS.
/2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978(92 STAT. 1224), THE PRESENT CASE IS DECIDED ON THE BASIS OF
EXECUTIVE ORDER 11491, AS AMENDED, AND AS IF THE NEW STATUTE HAD NOT
BEEN ENACTED. THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER
EITHER THE MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW
STATUTE OR THE RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE
CASE HAD ARISEN UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/3/ NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R-14-87 AND
KANSAS NATIONAL GUARD, 5 FLRC 124, 336 (FLRC NO. 76A-16 (AND OTHER CASES
CONSOLIDATED THEREWITH)(JANUARY 19, 1977), REPORT NO. 120); AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1636 AND STATE OF NEW
MEXICO NATIONAL GUARD, 5 FLRC 146, 336 (FLRC NO. 76A-75 (AND OTHER CASES
CONSOLIDATED THEREWITH) (JANUARY 19, 1977), REPORT NO. 120);
RECONSIDERATION DENIED, 5 FLRC 336(MAY 18, 1977), REPORT NO. 125.
/4/ 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 (STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.