[ v21 p1062 ]
21:1062(124)CA
The decision of the Authority follows:
21 FLRA No. 124
ADJUTANT GENERAL, STATE OF OHIO
OHIO AIR NATIONAL GUARD
WORTHINGTON, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, OHIO COUNCIL OF AIR
NATIONAL GUARD LOCALS, COUNCIL 127
AFL-CIO
Charging Party
Case Nos. 5-CA-20338
5-CA-30091
5-CA-30118
DECISION AND ORDER
Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed to the attached Decision of the Administrative Law Judge. The
Judge found that the Respondent had engaged in certain of the unfair
labor practices as alleged in the complaints in Case Nos. 5-CA-30118 and
5-CA-30091, and recommended that the Authority issue an appropriate
order directing the Respondent to cease and desist from the unfair labor
practices. The Judge further found that the Respondent had not engaged
in the unfair labor practices alleged in the complaint in Case No.
5-CA-20338, or in certain of the unfair labor practices alleged in the
complaint in Case No. 5-CA-30091, and he recommended dismissal of the
complaint in Case No. 5-CA-20338 and of those portions of the complaint
in Case No. 5-CA-30091. The Respondent filed exceptions to the
violations found by the Judge, and the General Counsel and the Charging
Party (the Union) filed exceptions to those portions of the Judge's
decision in which he recommended a dismissal. The Respondent filed an
opposition to the General Counsel's exceptions and the Union filed an
opposition to the Respondent's exceptions.
This proceeding involves three separate complaints which were
consolidated solely for the purpose of the hearing. The Authority will
consider separately the issues raised by the three complaints, in the
order considered by the Judge.
Case No. 5-CA-30118
I. The Issue
The complaint in this case alleged that the Respondent violated
section 7116(a)(1), (5) and (8) of the Statute by unilaterally deciding
to discontinue the payment of travel and per diem expenses to employees
serving as Union negotiators while they were engaged in the negotiation
of a new agreement between the parties.
II. Background
The Respondent and the Union were parties to a negotiated agreement
whose term ended on June 21, 1981. The agreement also provided,
however, that it would remain in full force and effect for up to one
additional year from the time the parties signed off on ground rules
covering the negotiation of a new agreement. On October 6, 1981, the
parties executed a Memorandum of Understanding (MOU) setting forth the
ground rules for their negotiation of a new agreement. The MOU provided
that the MOU and the parties' existing agreement would continue for one
full year, until October 6, 1982. In part, the MOU provided for the
payment by the Respondent of the travel and per diem expenses of
employees serving as the Union's negotiators. The Respondent contends
that it had agreed to provide travel and per diem expenses for Union
negotiators only because it was required to do so by the Authority's
decision in Interpretation and Guidance, 2 FLRA 265 (1979). On August
26, 1982, the Respondent advised the Union that it would withhold any
further payment of travel and per diem expenses for Union negotiators
because decisions in the United States Court of Appeals for the Second
(involving a National Guard unit) and Eighth Circuits had put in
question the validity of the Authority's position in Interpretation and
Guidance, noted above.
III. The Judge's Decision
When the Judge wrote his decision, he had the benefit of the Supreme
Court's decision in Bureau of Alcohol, Tobacco and Firearms (BATF) v.
FLRA, 464 U.S. 89 (1983). The Judge found that the Supreme Court had
held in BATF that section 7131(a) of the Statute does not require the
payment of travel and per diem expenses for union negotiators, and
therefore concluded that the Respondent's discontinuance of such
payments did not violate section 7116(a)(8) of the Statute. However, he
also noted that the Supreme Court had additonally stated that Federal
agencies were not precluded from making such payments, and had
recognized that parties in the Federal sector may negotiate for the
payment of travel and per diem expenses for union negotiators, citing
464 U.S. at 107, n. 17. He concluded that, as travel and per diem
payments were bargained for and included in the parties' MOU, the
Respondent could not unilaterally terminate such payments during the
course of the agreement. He therefore concluded that the unilateral
decision by the Respondent in this case to terminate the payment of
travel and per diem expenses to Union negotiators pursuant to the MOU
constituted a complete and unlawful rejection of the MOU in violation of
section 7116(a)(1) and (5) of the Statute.
IV. Positions of the Parties
The positions of the parties, as set forth in their exceptions and
oppositions, essentially constitute disagreements as to whether the
Judge correctly stated the findings of the Supreme Court's decision in
BATF. The Respondent argues that the Supreme Court's statement with
regard to bargaining on travel and per diem expenses was not a finding
of the court because it was not an issue before the court. Further, it
argues that, as the Respondent had initially agreed to pay such expenses
only on the basis of the Authority's decision in Interpretation and
Guidance, supra, which is no longer valid as a matter of law, the
Respondent cannot be bound by the agreement it made in this regard. The
Union, in its opposition to the Respondent's exceptions, argues that the
Judge's interpretation and explanation of the Surpreme Court's holding
in BATF is essentially sound, and that his resulting conclusion is
correct.
V. Analysis
Following the Supreme Court's BATF decision, the Authority recently
decided in National Treasury Employees Union and Department of the
Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986), petition for
review filed sub nom. Department of the Treasury, U.S. Customs Service
v. FLRA, No. 86-1198 (D.C. Cir. Mar. 22, 1986), that a union proposal
which would require an agency to pay the travel and per diem expenses
incurred by employees while using official time pursuant to the parties'
agreement concerned a condition of employment which is within the
agency's administrative discretion, is not inconsistent with Federal law
or Government-wide rules or regulations (including the Federal Travel
Regulations), and therefore is within the duty to bargain. Since the
parties' MOU in this case, insofar as it provided for the payment of
travel and per diem expenses for Union representatives engaged in the
negotiation of a renewed contract between the parties, similarly
concerned a negotiable condition of employment, the Authority adopts the
Judge's conclusion that the Respondent violated section 7116(a)(1) and
(5) of the Statute when it unilaterally terminated and repudiated that
agreement. See American Federation of Government Employees, Local 1923,
AFL-CIO, 20 FLRA No. 88 (1985) and Great Lakes Program Service Center,
Social Security Administration, Department of Health and Human Services,
Chicago, Illinois, 9 FLRA 499 (1982).
VI. Conclusion
The Authority concludes that the Respondent violated section
7116(a)(1) and (5) of the Statute by unilaterally repudiating its
contract with the Union insofar as it provided for the payment of travel
and per diem expenses for Union negotiators engaged in the negotiation
of the parties' new collective bargaining agreement.
Case No. 5-CA-20338
I. The Issue
The complaint in this case alleged that the Respondent violated
section 7116(a)(1) and (5) of the Statute by declaring nonnegotiable and
refusing to negotiate about a Union proposal to provide an alternative
to the standard military uniform generally required to be worn by
National Guard civilian technicians.
II. Background
The alleged violation in this case took place during the course of
the parties' negotiations for a renewed contract (see "Background,"
under Case No. 5-CA-30118, above). The parties' expiring agreement
provided that the Respondent's civilian technician employees might wear
agreed upon standardized civilian attire if they received permission to
do so by following a procedure set forth in the agreement. During the
course of their negotiations for a new agreement (and during the year
that the parties' contract was being kept in force and effect by the
parties' MOU), the Union proposed that the clause in their expiring
agreement which provided for the wearing of civilian attire be retained.
The Respondent declared the subject nonnegotiable, and refused to
consider the proposal on the basis that it involved a nonmandatory or
"permissive" subject of bargaining. The Respondent recognized that
Authority precedent at the time was to the contrary, but argued that, in
view of pending cases before various courts of appeals calling that
precedent into question, it was justified in such position.
III. The Judge's Decision
The Judge noted precedent which clearly held that proposals
substantially identical to the one here are mandatorily negotiable. He
found, however, that the Respondent had presented arguments in its
post-hearing brief to support its position (ones not addressed in the
Authority's decisions) that the wearing of the military uniform by
civilian technicians is a matter of "internal security" under section
7106(a)(1) of the Statute, and a matter pertaining to the "technology,
methods and means of performing work" under section 7106(b)(1) so as to
permit the Respondent to refuse to bargain on the matter. He agreed
with the Respondent's contentions that the wearing of the military
uniform by civilian technicians involves internal security matters and
the technology, methods, and means of performing work. He therefore
concluded that the Respondent did not violate section 7116(a)(1) and (5)
of the Statute when, upon the expiration of the parties' then current
agreement, it declared the Union's proposal concerning the wearing of
the military uniform nonnegotiable and refused to bargain about it.
Therefore, he recommended dismissal of the complaint.
IV. Positions of the Parties
With respect to the Judge's findings and conclusions regarding the
issue of internal security, the Respondent argues generally in support
of the Judge. The General Counsel and the Union question whether the
Judge was correct to consider the Respondent's arguments concerning
internal security at all, as they contend that those arguments were
raised for the first time in the Respondent's brief to the Judge.
However, assuming that the matter was properly before the Judge, the
General Counsel and the Union take issue with the Judge's finding that
the facts presented by the Respondent support its position on the
internal security matter, and they disagree with the legal conclusion
the Judge reaches even if the facts were accurate. With respect to the
Judge's findings and conclusions regarding the "technology, methods and
means of performing work," the General Counsel argued that there was no
evidence that the attire of these employees is not directly or
integrally related to the accomplishment of their duties.
V. Analysis
After the Judge issued his Dicision in this case, the Authority, on
remand from the U.S. Court of Appeals for the Second Circuit, issued the
first in a series of new determinations with regard to the negotiability
of proposals concerning the wearing of civilian attire by National Guard
civilian technicians. In Division of Military and Naval Affairs, State
of New York, Albany, New York, 15 FLRA 288 (1984), affirmed sub nom. New
York Council, Association of Civilian Technicians v. Federal Labor
Relations Authority, 757 F.2d 502 (2nd Cir. 1985), cert. denied, 106 S.
Ct. 137 (Oct. 7, 1985), the Authority held that the requirement that
civilian technicians wear military uniforms rather than civilian attire
involves the methods and means of performing work within the meaning of
section 7106(b)(1) of the Statute and therefore is a permissive rather
than a mandatory subject of bargaining; that is, a subject which may be
bargained, but only at the election of the agency. Further, the
Authority has held that, while an agency acts at its peril when it
refuses to negotiate on proposals similar to proposals previously found
negotiable by the Authority, an unfair labor practice will not be found
where subsequently established law supports the agency's position. See,
for example, Department of Defense, Department of the Army, Headquarters
XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 20 FLRA
No. 101 (1985) and Office of Personnel Management, 17 FLRA 302 (1985).
VI. Conclusion
The Authority adopts the Judge's conclusion, consistent with its
decisions and rational in the above cited cases, that the Respondent did
not violate section 7116(a)(1) and (5) of the Statute, as alleged, by
exercising its option under section 7106(b)(1) of the Statute and
refusing to negotiate concerning the Union's proposal which would have
extended the terms of the parties' expiring agreement that had permitted
some civilian technicians the option of wearing other than the required
military uniform. We shall therefore dismiss the complaint in this
case. We also find, in view of this conclusion, that it is unnecessary
to pass upon whether the Judge properly considered the Respondent's
position with regard to internal security, or whether he was correct in
his resolution of the factual disputes of the parties in this regard.
Case No. 5-CA-30091
I. The Issue
The complaint in this case alleged that the Respondent violated
section 7116(a)(1) and (5) of the Statute by unilaterally terminating
certain terms and conditions of employment incorporated in the parties'
negotiated agreement when the then current agreement between the parties
expired on October 6, 1982. Specifically, the complaint alleged that
the Respondent violated the Statute by declaring that it (1) would no
longer abide by the contractual procedure allowing civilian technicians
the option of wearing standardized civilian attire, and (2) that in the
future the processing of grievances and all disciplinary and adverse
actions would have to be consistent with applicable National Guard
regulations.
II. Background
As noted in the discussion of the prior two cases, the parties' then
current contract was scheduled to expire on October 6, 1982. On August
26, 1982, the Respondent notified the Union that, in the event
negotiations toward a new contract were not consummated by October 6,
1982, the Respondent would consider the then current agreement as having
expired, and that employees would have to comply with all appropriate
National Guard regulations. On September 30, 1982, the Respondent
advised the Union that the specific areas in which National Guard
regulations would supercede the parties' agreement included the wearing
of the military uniform by civilian technicians, disciplinary and
adverse actions, and grievance procedures. On October 7, 1982, the
contract was terminated by the Respondent. The parties stipulated that
46 grievances concerning the wearing of civilian attire, all filed prior
to October 6, 1982, were processed under the procedures of the expired
agreement.
The parties stipulated that the expired agreement had specifically
excluded from the grievance procedure those matters which could be heard
under section 709(e) of the National Guard Technicians Act, and that the
practice of the parties during the term of the agreement had been to
exclude such matters. Section 709(e)(4) of the Technicians Act defines
the coverage of 709(e) matters as including "a reduction in force,
removal, or an adverse action involving discharge from technician
employment, suspension, furlough without pay, or reduction in rank or
compensation."
III. The Judge's Decision
The Judge noted Authority precedent holding that the terms and
conditions of a collective bargaining agreement continue in full force
and effect after the expiration of the agreement unless the parties
mutually agree to do otherwise. He also noted Authority precedent
holding that an agency may unilaterally change, upon the termination of
an agreement, a term and condition of employment embodied in the expired
agreement which involves a permissive subject of bargaining. He
concluded that the Respondent violated section 7116(a)(1) and (5) of the
Statute when it refused to continue to adhere to the provisions of the
parties' expired agreement dealing with the grievance procedure and the
processing of disciplinary and adverse actions. However, he concluded
that the Respondent did not violate section 7116(a)(1) and (5) of the
Statute when it unilaterally required a return to adherence to National
Guard regulations concerning the wearing of military uniforms, as he had
concluded in Case No. 5-CA-20338 (above) that this involved a permissive
subject of bargaining and therefore the Respondent was within its rights
to make such a change at the termination of the parties' agreement.
IV. Positions of the Parties
The Respondent contends that the only condition of employment it
changed on October 6, 1982, was the uniform wearing requirement. It
asserts that the parties' then current agreement excluded by its own
terms those matters which were subject to the disciplinary and adverse
action procedures set forth in section 709(e) of the Technicians Act,
and that grievances concerning subject matters which might properly have
been filed pursuant to the grievance procedure contained in the parties'
negotiated grievance procedure could still be resolved through that
mechanism after the termination of the agreement. In support of that
contention, the Respondent points out that the 46 grievances concerning
uniform wearing, mentioned above, were processed subsequent to the
cancellation of the agreement pursuant to the terms of the agreement,
and that there is no evidence that any grievances properly subject to
the negotiated procedure were or would have been refused proper
processing.
In opposition to the Respondent, the Union contends that Congress
intended, by virtue of section 7121 of the Statute, to offer employees a
choice of alternative dispute mechanism -- either through a broad scope
negotiated grievance procedure or through the procedure delineated in
section 709(e) of the Technicians Act. It further contends that the
Judge, relying on earlier Authority decisions, properly held that
disciplinary actions should be subject to the negotiated grievance
procedure. In essence, the Union argues that the parties' contractual
provision excluding those matters subject to resolution pursuant to
section 709(e) was meant only to exclude section 709(e) matters which
were processed exclusively under that section, but was not meant to
apply to such matters if initiated and pursued under the parties'
contractual grievance procedure.
V. Analysis
As the Judge correctly found, the Authority has held that terms and
conditions of employment which concern mandatory subjects of bargaining
which are embodied in a collective bargaining agreement continue
following the expiration of the agreement. The Authority has also held,
since the issuance of the Judge's Decision, that once an agreement has
expired, either party may elect to no longer be bound by provisions
therein concerning "permissive" subjects of bargaining, but instead may
reassert the right not to negotiate with regard to such permissive
subjects of bargaining. See, for example, United States Department of
Defense, Department of the Army, McAlester Army Ammunition Plant, 20
FLRA No. 73 (1985), petition for review filed sub nom. American
Federation of Government Employees, Local 2815, AFL-CIO v. FLRA, No.
86-1004 (D.C. Cir. Jan. 3, 1986), and the cases cited therein.
As noted in the discussion of Case No. 5-CA-20338 above, subsequent
to the issuance of the Judge's Decision, the Authority has held that the
requirement that civilian technicians wear military uniforms rather than
civilian attire is a permissive rather than a mandatory subject of
bargaining. Accordingly, the Respondent was within its rights in
notifying the Union that civilian technicians would be required to wear
the military uniform upon the expiration of the parties' agreement.
This conclusion is also consistent with the Authority's decision in an
arbitration appeal involving the same parties which arose from the same
facts and circumstances that led to the unfair labor practice
allegations in this case. In The Adjutant General, State of Ohio and
American Federation of Government Employees, AFL-CIO, Ohio Council of
Air National Guard Locals No. 127, Local 3470, 17 FLRA 957 (1985), the
Authority upheld the arbitrator's finding that the technicians who had
exercised their option to choose to wear standardized civilian attire
prior to the expiration of the parties' agreement were entitled to
continue to do so for the one year period provided for in the parties'
agreement, but that the technicians who had submitted declarations
electing to wear civilian attire after the agreement expired did not
have such a right. In so concluding, the Authority noted that the
requirement that civilian technicians wear military uniforms is a
permissive rather than a mandatory subject of bargaining, and therefore
could be terminated by either party after the agreement expired.
Also subsequent to the issuance of the Judge's decision, the
Authority, in Department of Defense, Illinois Air National Guard, 182nd
Tactical Air Support Group, Peoria, Illinois, 19 FLRA No. 11 (1985),
petition for review filed sub nom. Illinois Air Chapter 34, Association
of Civilian Technicians, Inc. v. FLRA, No. 85-1579 (D.C. Cir. Sept. 12,
1985), held that section 709(e) of the Technicians Act was the exclusive
procedure for dealing with a matter involving an adverse personnel
action against a National Guard technician. The Authority cited and
relied upon the opinions of several Courts of Appeals to the effect that
the Technicians Act was meant to be the exclusive procedure for all
matters enumerated in and susceptible to resolution through the
procedures outlined in section 709(e).
The General Counsel has not shown that the Respondent actually
terminated any of the provisions of the parties' expired agreement
pertaining to their grievance procedure or the processing of
disciplinary and adverse actions under it. It appears rather that
management was only reaffirming its own past view as to what matters
with regard to the grievance/arbitration provisions of the parties'
agreement had been excluded because of the exclusion of section 709(e)
matters. In any event, as noted above, the Authority has held that such
matters may not be included within the scope of a negotiated grievance
procedure, and therefore the Respondent would not have committed an
unfair labor practice by insisting that they be excluded even if they
had been included in the past.
VI. Conclusion
The Authority concludes, consistent with its decision in McAlester
Army Ammunition Plant, that the Respondent was within its rights under
the Statute when it asserted, at the termination of the parties' then
current agreement, that it would no longer be bound by the provision in
the agreement that its civilian technician employees had the option of
wearing standardized civilian attire and that such employees would
henceforth be required to abide by National Guard regulations requiring
the wearing of the military uniform. Therefore, the Respondent's
actions in this regard did not violate section 7116(a)(1) and (5), as
alleged, and we shall dismiss that allegation of the complaint.
The Authority also concludes, consistent with its decisions in
Illinois Air National Guard and State of Ohio, above, that the
Respondent was within its rights when it asserted that upon termination
of the parties' agreement, the processing of all grievances and all
disciplinary and adverse actions would have to be consistent with
applicable National Guard regulations. Therefore, the Respondent's
actions in this regard did not violate section 7116(a)(1) and (5) of the
Statute, as alleged, and we shall dismiss these allegations.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Authority hereby orders that the Adjutant General, State of
Ohio, Ohio Air National Guard, Worthington, Ohio, shall:
1. Cease and desist from:
(a) Terminating and repudiating the terms of an October 6, 1982
Memorandum of Understanding under which it had agreed to pay travel and
per diem expenses, consistent with applicable Federal Travel
Regulations, to the authorized representatives of the American
Federation of Government Employees, Ohio Council of Air National Guard
Locals, Council 127, AFL-CIO, who were engaged in negotiating a new
collective bargaining agreement between the parties covering the unit
employees.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Pay travel and per diem expenses consistent with applicable
Federal Travel Regulations to the authorized representatives of the
American Federation of Government Employees, Ohio Council of Air
National Guard Locals, Council 127, AFL-CIO, who were engaged in
negotiating a collective bargaining agreement pursuant to the parties'
October 6, 1982 Memorandum of Understanding and make whole any
representatives from whom such payments have been withheld.
(b) Post at its facilities 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 Adjutant General, or a designee,
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. Reasonable steps shall be
taken to insure that such 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 V, in writing, within
30 days from the date of this Order, as to what steps have been taken to
comply with it.
IT IS FURTHER ORDERED that the complaint in Case No. 5-CA-30118,
insofar as it alleges any other violations of the Statute, be, and it
hereby is, dismissed.
IT IS FURTHER ORDERED that the complaints in Case No. 5-CA-20338 and
Case No. 5-CA-30091 be, and they hereby are, dismissed in their
entirety.
Issued, Washington, D.C., May 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, 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 terminate and repudiate the terms of our October 6, 1982
Memorandum of Understanding under which we had agreed to pay travel and
per diem expenses, consistent with applicable Federal Travel
Regulations, to the authorized representatives of the American
Federation of Government Employees, Ohio Council of Air National Guard
Locals, Council 127, AFL-CIO, who were engaged in negotiating a new
collective bargaining agreement covering a unit of our employees.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL pay travel and per diem expenses consistent with applicable
Federal Travel Regulations to the authorized representatives of the
American Federation of Government Employees, Ohio Council of Air
National Guard Locals, Council 127, AFL-CIO, who were engaged in
negotiating a collective bargaining agreement pursuant to the parties'
October 6, 1982 Memorandum of Understanding and make whole any
representatives from whom such payments have been withheld.
(Activity)
Dated:
By: (Signature) (Title)
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 its provisions, they may communicate directly with the Regional
Director, Region V, Federal Labor Relations Authority, whose address is:
175 W. Jackson Boulevard, Suite 1359-A, Chicago, Illinois 60604 and
whose telephone number is: (312) 353-6306.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case Nos. 5-CA-20338 5-CA-30091 5-CA-30118
ADJUTANT GENERAL, STATE OF OHIO, OHIO AIR
NATIONAL GUARD, WORTHINGTON, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
OHIO COUNCIL OF AIR NATIONAL GUARD LOCALS,
COUNCIL 127, AFL-CIO
Charging Party
Major Robert D. Doane, Esquire
For the Respondent
Ronald Liwo
For the Charging Party
Arlander Keys, Esquire
For the General Counsel,
Federal Labor Relations Authority
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Labor-Managment Relations
Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101
et seq., 92 Stat. 1191 (hereinafter referred to as the Statute), and the
Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5
C.F.R. Chapter XIV, Section 2410 et seq.
On September 27, 1982 American Federation of Government Employees,
Ohio Council of Air National Guards Locals, Council 127, AFL-CIO
(hereinafter called the Union or AFGE Council 127) filed a charge in
Case No. 5-CA-20338, alleging that Adjutant General, State of Ohio, Ohio
Air National Guard, Worthington, Ohio (hereinafter called Respondent or
Ohio National Guard) had violated Sections 7116(a)(1), (5) and (8) of
the Statute by declaring a Union proposal concerning the wearing of the
military uniform by civilian technicians non-negotiable, after such
proposal had been previously found negotiable by the FLRA.
On December 9, 1982 the Union filed a charge in Case No. 5-CA-30091,
alleging that Ohio Air National Guard had violated Sections 7116(a)(1)
and (5) of the Statute by unilaterally changing terms and conditions of
employment of civilian employees by requiring them to wear the military
uniform and to adhere to National Guard Regulations concerning the
processing of grievances and disciplinary and adverse actions.
On December 30, 1982 the Union filed a charge in Case No. 5-CA-30118,
alleging that Respondent had violated Sections 7116(a)(1) and (7) of the
Statute by discontinuing to pay travel and per diem expenses of Union
negotiators while they were engaged in negotiating a collective
bargaining agreement with Respondent, thereby repudiating a Memorandum
of Understanding in which Respondent had agreed to pay such expenses.
On January 19, 1983 the Union filed an amended charge in Case No.
5-CA-30118, in which it deleted the Section 7116(a)(7) allegation and
alleged the stated facts therein to be violations of Sections
7116(a)(1), (5) and (8) of the Statute.
On November 24, 1982, January 11, 1983 and February 15, 1983,
Complaints and Notices of Hearing issued in Case Nos. 5-CA-20338,
5-CA-30091, and 5-CA-30118, respectively, alleging the violations
alleged in said charges. Respondent filed Answers to the Complaints in
Case Nos. 5-CA-20338, 5-CA-30091, and 5-CA-30118, denying that it had
violated the Statute. /1/ By Order dated February 16, 1983, these cases
were consolidated for purpose of hearing.
A hearing in this matter was conducted before the undersigned in
Columbus, Ohio. The Ohio Air National Guard, AFGE Council 127 and the
General Counsel of the FLRA were represented and afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence and to argue orally. The parties entered into
extensive stipulations of fact. Post hearing briefs were filed and have
been fully considered.
Based upon the entire record in this matter, my observation of the
witnesses and their demeanor, and from my evaluation of the evidence, I
make the following:
Findings of Fact
In July 1971, the Union became the exclusive collective bargaining
representative for a unit composed of all general schedule and wage
board employees, including civilian technicians, of the Ohio Air
National Guard, with certain exclusions, not here relevant. The
Respondent and the Union became parties to a collective bargaining
agreement covering civilian technicians, which expired in 1975 and then
to a subsequent one which, by its terms, expired on June 21, 1981. This
latter agreement provided that it would remain in full force and effect,
during renegotiation of the agreement, for up to one additional year
after the ground rules were signed.
On October 6, 1981 Respondent and AFGE Council 127 signed a
Memorandum of Understanding, setting forth the ground rules for the
negotiation of the new collective bargaining agreement and the parties
agreed that the existing collective bargaining agreement would expire on
October 6, 1982. The ground rules provided that official time and
travel and per diem expenses would be authorized by Respondent for the
members of the Union's negotiating committee during such times as they
were engaged in negotiating the new collective bargaining agreement;
On March 17, 1981 the National Guard Bureau issued regulation TPR
302.7-6, Wearing of the Military Uniform, which provides that civilian
technicians are to wear the military uniform while performing civilian
technician duties, unless otherwise specifically excluded by a
negotiated labor agreement. During the course of contract negotiations,
the Union submitted the following proposal relative to the wearing of
standardized civilian attire:
ARTICLE XXVI. UNIFORMS
Section 1. a. Ohio Air National Guard Technicians who are
members of the Bargaining Unit, while performing their day-to-day
duties shall have the option of wearing either: (1) The Military
Uniform; or (2) an agreed upon standardized civilian attire,
without the display of military rank.
b. For those individuals electing to wear the standardized
civilian attire, it is the individual's responsibility to procure,
maintain, and pay for any and all expenses incurred for his
attire.
c. Either attire must be clean, neat and good (sic) condition
on a daily basis.
This proposal is identical to the provision contained in the expired
collective bargaining agreement with respect to the wearing of
standardized civilian attire. Prior to this most recently expired
collective bargaining agreement the civilian technicians had always worn
the military uniform while performing day-to-day technician duties.
By letter dated August 26, 1982 the Adjutant General of Ohio advised
AFGE Council 127, that if the parties had not concluded a contract by
October 6, 1982 there would be no contract in effect on October 7, 1982
and that, accordingly, "all appropriate National Guard regulations shall
be complied with during the remaining period of negotiation. This will
include the return of all technicians to the wear of the military
uniform." By Memorandum dated September 16, 1982 Respondent declared the
Union's proposal, Article XXVI, Uniforms, non-negotiable, asserting that
the wearing of the uniform by civilian technicians is not a proper
subject for negotiation. Since September 16, 1982 Respondent has
refused to negotiate concerning the Union's uniform proposal.
As of October 7, 1982 the Adjutant General of Ohio, Major General
James C. Clem, ordered that all technicians comply with the uniform
regulations, TPR 302.7-6 and that the processing of grievances and all
disciplinary and adverse actions be in accordance with Air Force and
National Guard regulations. Since October 7, 1982 Respondent has not
permitted the filing of grievances under the contract grievance
procedure. /2/ On September 30, 1982 Respondent notified its
supervisors and the Union that, effective October 7, 1982, the
collective bargaining agreement would no longer be in effect and that
the wearing of the military uniform by civilian technicians and the
administering of all grievances and disciplinary and adverse actions
would be in accordance with applicable Air Force and National Guard
regulations.
Pursuant to the National Guard regulations, implemented on October 7,
1982 employees are required to wear the military uniform at all times
while performing their civilian duties.
The Air Force and National Guard regulations so implemented do not
provide for arbitration or advisory arbitration, as did the expired
collective bargaining agreement. Rather the regulations provide that
the final authority in the processing of a grievance is the Adjutant
General.
By letter dated August 26, 1982, Respondent, by Major General James
C. Clem, notified the Union that, in view of the denial of enforcement
of FLRA Orders in two United States Courts of Appeals concerning the
payment of travel and per diem expenses to Union negotiators.
Respondent proposed to hold in abeyance any further payment of such
expenses pending a decision by the United States Supreme Court on the
issue. This proposal was not accepted by the Union.
Since August 26, 1982, Respondent has accepted and recorded, but has
not processed and paid the travel vouchers submitted by Union
negotiators for travel and per diem expenses arising out of their having
negotiated with Respondent on the new collective bargaining agreement.
The primary mission of the Ohio Air National Guard is to provide
trained, qualified, combat-ready forces in support of the active duty
Air Force.
The military uniform involves safety shoes, wet weather gear, and
non-static jackets and material and is therefore related to the safety
of civilian technicians.
There is a 35 man base defense team that would be called in
immediately for the security of the base. A person in uniform may
reasonably be deemed more effective than a person in civilian attire, in
enforcing security orders vis-a-vis a civilian non-employee.
Some aircraft were blown up at a facility controlled by the Puerto
Rican Air National Guard.
Conclusions of Law and Discussion
The parties hereto stipulated that the issues raised herein are as
follows:
Case No. 5-CA-20338
Whether Respondent, in view of the pendency of requests for
review of Authority Orders concerning the issue of the
negotiability of the wearing of the military uniform before
several United States Courts of Appeals, violated 5 USC 7116(a)(1)
and (5), when it declared the Union's bargaining proposal,
described above in paragraph 12, as non-negotiable and thereafter
refused to bargain concerning said proposal by alleging it to be a
permissive Management right and thus subject to withdrawal from
the bargaining process.
Case No. 5-CA-30091
Whether Respondent, upon the termination of the collective
bargaining agreement on October 6, 1982, violated 5 USC 7116(a)(1)
and (5) by declaring the uniform to be a permissive subject of
bargaining and not an appropriate subject of bargaining and by
thereafter refusing to adhere to the provisions of said agreement
concerning the wearing of the military uniform, the grievance
procedure and the processing of disciplinary and adverse actions.
Case No. 5-CA-30118
Whether Respondent, by refusing to process and pay travel and
per diem for the Union's duly designated negotiators for expenses
arising out of their negotiations with Respondent toward a new
collective bargaining agreement, thereby breached the Memorandum
of Understanding described above in paragraph 10 and/or failed to
comply with 5 USC 7121(a), in violation of 5 USC 7116(a)(1), (5)
and (8) even, though the exact issue is now pending before the
United States Surpreme Court.
A. Case No. 5-CA-30118
The FLRA has held that Section 7131(a) of the Statute requires an
agency to pay employee representatives of an exclusive collective
bargaining representative engaged in contract negotiations, the travel
and per diem expenses of such representatives for the time engaged in
negotiations. Interpretation and Guidance, 2 FLRA 265 (1979); Bureau
of Alcohol, Tobacco and Firearms, Western Region, Department of the
Treasury, San Francisco, California, 4 FLRA 288 (1980), enforced sub
nom. Bureau of Alcohol, Tobacco and Firearms v. Federal Labor Relations
Authority, 672 F.2d 732 (9th Cir. 1982), enforcement denied and case
reversed 52 USLW 4013, No. 82-799 (U.S. November 29,1983) and Department
of the Air Force, Air Force Logistics Command, Wright-Patterson Air
Force Base, Ohio, supra. But see, Division of Military and Naval
Affairs, State of New York, Albany, New York, 7 FLRA 458 (1981),
reversed sub nom. Division of Military and Naval Affairs v. Federal
Labor Relations Authority, 683 F.2d 45 (2d Cir. 1982), U.S. Department
of Agriculture, Science and Education Administration, Agricultural
Research, North Central Region, Dakotas-Alaska Area, 6 FLRA 265 (1981),
reversed sub nom. United States Department of Agriculture v. Federal
Labor Relations Authority, 691 F.2d 1242 (8th Cir. 1982); and Florida
National Guard, 5 FLRA 365 (1981) reversed sub nom. Florida National
Guard and Department of Defense, v. Federal Labor Relations Authority,
699 F.2d (11th Cir., 1983). The United States Supreme Court in the
Bureau of Alcohol, Tobacco and Firearms, v. FLRA, supra, in reversing
the FLRA held that the Section 7131(a) of the Statute does not require
the payment of travel and per diem expenses to Union negotiators.
Accordingly, I conclude Respondent did not, in this respect violate
Section 7116(a)(8) of the Statute.
In the instant case, however, Respondent, in the ground rules, agreed
to pay travel and per diem for the Union negotiators on official time.
Such conduct by Respondent constituted a patent breach of a collective
bargaining agreement and thus was in violation of Section 7116(a)(1) and
(5) of the Statute. Cf. Great Lakes Program Service Center, Social
Security Administration, Department of Health and Human Services,
Chicago, Illinois, 9 FLRA 499 (1982) and Internal Revenue Service, OALJ
81-37 (July 21, 1982). The subject case does not involve a dispute as
to the meaning of the ground rules but rather a total rejection by
Respondent of the ground rules term requiring payment of travel and per
diem expenses. In this regard the Supreme Court specifically stated
that Section 7131(a) of the Statute does not preclude an agency from
paying the travel and per diem expenses and recognized that a Union and
agency can negotiate and contract for such payments. Bureau of Alcohol,
Tobacco and Firearms v. FLRA, supra, footnote 17. Such a case is the
instant one.
B. Case No. 5-CA-30338
Respondent contends that the Adjutant General of Ohio is permitted to
declare the wearing of a military uniform non-negotiable pursuant to
Section 7106(a)(1) /3/ of the Statute which provides that any management
official may "determine the mission . . . internal security practices of
the agency" and pursuant to 7106(b)(1) of the Statute which provides
that nothing shall preclude any agency and any labor organization from
negotiating . . . (1) at the election of the agency . . . on the
technology, methods and means of performing the work; . . ." Respondent
contends that the Adjutant General of Ohio has determined that the use
of a military uniform is necessary to carry out the mission of the
agency and for internal security.
Respondent "urges that the military uniform, in a military facility,
worn by personnel working on military equipment, when those personnel
have a definite mission of defense of those facilities and equipment is
well within the internal security practices to be determined by the
Adjutant General." /4/
The Ohio Air National Guard's mission is to provide trained,
qualified, combat-ready forces in support of the active duty Air Force,
including the maintenance of aircraft, etc. It may be reasonably
concluded that internal security would be enhanced, improved or better
maintained if all civilian technicians were required to wear military
uniforms while on duty. Such civilian employees would be easily
identifiable, internal security forces can be more quickly mobilized and
such civilian technicians, when in military uniform, would be more
readily obeyed by civilians.
The General Counsel of the FLRA points out that, when various State
National Guards have refused to comply with FSIP awards, the FLRA has
ordered parties to adopt union proposals containing nearly identical to
the language involved herein. See State of Nevada National Guard, 7
FLRA 245 (1981); Puerto Rico Air National Guard, 8 FLRA 480 (1982);
Division of Military and Naval Affairs, State of New York, 8 FLRA 158
(1982), remanded sub nom. State of New York, Division of Military and
Naval Affairs, (Albany, New York) and Department of Defense v. Federal
Labor Relations Authority, 696 F.2d 202 (CA. 202, 1982); Florida
National Guard, 9 FLRA 347 (1982). Further once a determination of
negotiability has been made by the FLRA concerning a proposal a
subsequent declaration of non-negotiability by another party with
respect to a similar proposal constitutes a refusal to bargain in good
faith unfair labor practice, so long as no meaningful differences can be
found between the two proposals. See Department of the Air Force, U.S.
Air Force Academy, 6 FLRA 548 (1981); Veterans Administration, Veterans
Administration Regional Office, Buffalo, New York, 10 FLRA 167 (1982);
Veterans Administration Medical Center, Northport, New York, 10 FLRA 675
(1982).
The FLRA, however, has never specifically addressed the question of
whether the wearing of the military uniform by civilian technicians is a
subject covered by Section 7106(a)(1) of the Statute dealing with
internal security or covered by Section 7106(b)(1) of the Statute
dealing with the technology and means of performing work. The General
Counsel of the FLRA submits that it is implicit in the FLRA's findings
of violation when National Guards have refused to adopt the work attire
language ordered by FSIP, that work attire is a mandatory subject of
bargaining. This argument is rejected. The decisions of the FLRA
dealing with the FSIP, work attire awards did not discuss whether, in
the circumstances and facts of those cases, the wearing of the uniforms
was a matter within the purview of Section 7106(a) and (b) of the
Statute and there is absolutely nothing in those decisions to indicate
that the respondent National Guards made such a contention.
Accordingly, these FLRA decisions are not dispositive of the questions
presented herein.
It must be determined herein, therefore, whether the wearing of a
military uniform by the civilians is a matter of "internal security"
under Section 7106(a)(1) of the Statute or "technology, methods and
means of performing work" under Section 7106(b)(1) of the Statute so as
to permit Respondent to refuse to bargain about such matter.
Protecting its facilities and equipment, including planes, is clearly
a responsibility of Respondent. It is noted that planes of the Puerto
Rico National Guard have been destroyed. In such circumstances, a
requirement that all civilian technicians must wear military uniforms
can not be said to be an unreasonable security precaution. When wearing
military uniforms, civilian technicians are easily identifiable, quickly
mobilized for security purposes and more readily obeyed by non-employee
civilians. Thus it is a reasonable internal security practice and
Respondent is privileged under a Section 7106(a)(1) of the Statute, to
require the wearing of military uniforms by civilian technicians and to
refuse to bargain about such determination. Cf. American Federation of
Government Employees, Local 15, and Department of the Treasury, Internal
Revenue Service, 2 FLRA 874 (1980).
Similarly, Respondent contends that the wearing of the military
uniform involves the technology and method of performing the work. In
this regard, Respondent states the use of safety shoes and non-static
jackets and clothes are required for safety considerations and that
military uniforms meet these requirements. A determination concerning
appropriate safety equipment, assuming such determination is not totally
unreasonable, comes within the purview of "the technology, methods, and
means of performing work" as set forth in Section 7106(b)(1) of the
Statute. Accordingly, it is concluded that the wearing of the military
uniform by civilian technicians is a safety determination by Respondent,
pursuant to Section 7106(b)(1) of the Statute, about which at its own
election, Respondent is not required to bargain. /5/
It can be argued, with respect to both the internal security and
"technology, methods and means of performing work" considerations, that
how these considerations can be met or best accomplished should be
negotiable. The entire thrust of Section 7106(a)(1) of the Statute is
that once a matter is determined /6/ to be an internal security practice
it is not negotiable, even though the Union might reasonably contend
that the same end can be better achieved by utilizing other means.
Similarly the thrust of Section 7106(b)(1) of the Statute is that, once
a matter is determined to be the "technology, methods, and means of
performing work" Respondent, at its own election, need not negotiate
concerning such matter, even though the Union might reasonably content
that the same objective could be better achieved by utilizing other
means. /7/
In light of all the foregoing, it is concluded that Respondent did
not violate Sections 7116(a)(1) and (5) of the Statute when, upon
expiration of the then existing collective bargaining agreement, it
declared the Union's proposal concerning the wearing of the military
uniform non-negotiable and refused to bargain about it.
C. Case No. 5-CA-30091
This case deals with the contention that, after the termination of
the collective bargaining agreement, Respondent violated Sections
7116(a)(1) and (5) of the Statute by refusing to continue to adhere to
those provisions of the agreement concerning the wearing of civilian
"uniform" by civilian technicians, the grievance procedure and the
processing of disciplinary and adverse actions. It is contended that
Respondent thereby unilaterally changed the terms and conditions of
employment.
The FLRA holds that terms and conditions of employment, established
by a collective bargaining agreement, continue in force and effect after
the expiration of the agreement, unless the parties mutually agree
otherwise. Cf. Department of the Air Force, 35th Combat Support Group
(TAC), George Air Force Base, California, 4 FLRA 22 (1980), hereinafter
called the George Air Force Base case; Department of Defense,
Department of the Navy, Naval Ordnance Station, Louisville, Kentucky, 4
FLRA 760 (1980) and U.S. Nuclear Regulatory Commission, 6 FLRA 18
(1981). In the George Air Force Base case, supra, FLRA specifically
held that "negotiated grievance and arbitration procedures must continue
as established upon the expiration of a negotiated agreement, absent
express agreement by the parties to the contrary . . . ." An agency, may
upon the expiration of a collective bargaining agreement, however,
change provisions of the agreement concerning permissive subjects of
bargaining. U.S. Naval Station, Mayport, Florida, 6 FLRA 133 (1981).
In light of the foregoing and having already determined that the
determination that civilian technicians must wear military uniforms is
covered by Sections 7106(a) and (b) of the Statute, it is concluded that
Respondent was permitted, at the termination of the agreement, to
unilaterally change the agreement's provisions and to unilaterally
require civilian technicians to wear military uniforms. Accordingly, it
is concluded, in this respect that Respondent did not violate Sections
7116(a)(1) and (5) of the Statute. Cf. U.S. Naval Station, Mayport,
Florida, supra.
Respondent argues that, with respect to the grievance procedure or
the procedure for the processing of disciplinary and adverse actions,
the National Guard Technicians Act of 1968, Public Law 90-486, 32 U.S.C.
709, the Adjutant General is the final authority with respect to adverse
actions affecting civilian technicians and is not, in this area, subject
to the provisions of the Statute. Respondent relies upon New Jersey Air
National Guard v. Federal Labor Relations Authority, 677 F.2d 276 (3rd
Cir. 1982); cert denied 103 S. Ct. 343 (1982). /8/ The FLRA in dealing
with the relationship of the Statute and the National Guard Technicians
Act of 1968, however, specifically rejected the contention that Section
709(e) of the National Guard Technicians Act of 1968 requires the
specific exclusion of adverse actions involving technicians from
coverage under negotiated grievance procedures. Michigan Army National
Guard, Lansing, Michigan, 11 FLRA 365 (1983), footnote on page 365 and
the cases cited therein. See also NAGE Local R12-132 and California
National Guard, 5 FLRA 201 (1981), reversed sub nom. California
National Guard, v. Federal Labor Relations Authority, 697 F.2d 874 (9th
Cir. 1983). I am constrained to follow the decisions of the FLRA and
accordingly reject Respondent's contention that Section 709(e) of the
National Guard Technicians Act of 1968 specifically reserves adverse
actions to the Adjutant General and that in the case of adverse actions
the Statute's mandates concerning negotiated grievance procedures and
bargaining do not apply.
I therefore conclude that Respondent violated Sections 7116(a)(1) and
(5) of the Statute when, at the termination of the collective bargaining
agreement, it refused to continue to adhere to those provisions of the
agreement dealing with the grievance procedure and the processing of
disciplinary and adverse actions.
Having found and concluded that Respondent violated Sections
7116(a)(1) and (5) of the Statute, I recommend the Authority issue the
following:
ORDER
Pursuant to Section 2423.23 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7118 of the Statute, it is
hereby ordered that the Adjutant General, State of Ohio, Ohio Air
National Guard, Worthington, Ohio shall:
1. Cease and desist from:
(a) Failing and refusing to give effect to the agreement
between American Federation of Government Employees, Ohio Council
of Air National Guard Locals, Council 127, AFL-CIO, which sets
forth the collective bargaining ground rules and which provides
payment of travel and per diem expenses to representatives
designated by the Union for the time spent in collective
bargaining negotiations.
(b) Unilaterally changing the grievance procedure and the
procedure for the processing of disciplinary and adverse actions
or any other condition of employment without first notifying AFGE
Ohio Council of Air National Guard Locals, Council 127, AFL-CIO,
and giving it an opportunity to bargain about any such change.
(c) In any like or related manner interfering with,
restraining, or coercing 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) Provide representatives designated by American Federation
of Government Employees, Ohio Council of Air National Guard
Locals, Council 127, AFL-CIO, with necessary travel and per diem
expenses, for the time spent in contract negotiations, in
compliance with the ground rules and make whole representatives
for such travel and per diem expenses which they have not been
paid.
(b) Reinstate the grievance procedure and the procedure for
processing disciplinary and adverse actions as provided in the
expired collective bargaining agreement with American Federation
of Government Employees, Ohio Council of Air National Guard
Locals, Council 127, AFL-CIO.
(c) Post at its various installations of the Ohio Air National
Guard wherein unit employees are located 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 an
authorized representative of the Respondent and shall be posted
and maintained for 60 consecutive days thereafter, in conspicuous
places, including bulletin boards and all other places where
notices to employees are customarily posted. Reasonable steps
shall be taken to insure that said Notices are not altered,
defaced or covered by any other materials
(d) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region V, Federal Labor
Relations Authority, in writing, within 30 days from the date of
the Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED, that the complaints in all other aspects are
hereby dismissed.
/s/ SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: December 20, 1983
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) On January 11, 1983 and February 4, 1983, Counsel for the General
Counsel filed Motions for Summary Judgments in Case Nos. 5-CA-20338,
5-CA-30091, respectively. On February 11, 1983 Respondent filed a
Response to the Motion for Summary Judgment in Case Nos. 5-CA-30091. By
Orders dated February 2, 1983 and March 1, 1983 Counsel for the General
Counsel's Motions for Summary Judgment were denied in Case Nos.
5-CA-20338 and 5-CA-30091, respectively.
(2) The parties stipulates:
Since October 6, 1982, the Ohio Air National Guard has accepted 46
grievances on the option of wear of standardized civilian attire which
have resulted in two (2) arbitrations now in the process of resolution.
The 46 grievances referred to above, all of which were filed on or
before October 6, 1982, allege that Respondent violated Article XXIV,
Section 2 of the collective bargaining agreement by refusing to continue
to honor the written selections of individual employees to wear the
military uniform or civilian attire which selections had not been in
effect for the required one year period as of October 6, 1982.
(3) Respondent's counsel specifically stated at the hearing that
Respondent was arguing that the uniform issue was a permissive subject
for bargaining under Section 7106(b)(1) not that it is forbidden to
bargain about it under Section 7106(a) of the Statute. Tr. pp. 13-14.
Respondent has apparently changed its position in its brief.
(4) See page 36 of Respondent's brief.
(5) This, of course does not mean Respondent is not required to
bargain about the impact and implementation of such a determination.
See Section 7106(b)(2) and (3) of the Statute.
(6) Of course such determinations must be reasonably related to
internal security. An assertion that a matter is related to internal
security, where such assertion is frivolous, would not invoke the
operation of Section 7106(a)(1) of the Statute.
(7) Of course such determination must be reasonably related to the
technology of doing the work. A mere assertion of such, where
frivolous, would not invoke the operation of Section 7106(b)(1) of the
Statute.
(8) American Federation of Government Employees, AFL-CIO, Local 3486
and New Jersey Air National Guard, 177th Fighter Interceptor Group,
Pamora, New Jersey, 5 FLRA 209 (1981); reversed sub nom. New Jersey
Air National Guard v. Federal Labor Relations Authority, 677 F.2d 276
(3th Cir. 1982); cert denied 103 S. Ct. 343 (1982).
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
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to give effect to the agreement between
American Federation of Government Employees, Ohio Council of Air
National Guard Locals, Council 127, AFL-CIO, which sets forth the
collective bargaining ground rules and which provides payment of travel
and per diem expenses to representatives designated by the Union for the
time spent in collective bargaining negotiations.
WE WILL NOT unilaterally change the grievance procedure and the
procedure for the processing of disciplinary and adverse actions or any
other condition of employment without first notifying AFGE Ohio Council
of Air National Guard Locals, Council 127, AFL-CIO, and giving it an
opportunity to bargain about any such change.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Statute.
WE WILL provide representatives designated by American Federation of
Government Employees, Ohio Council of Air National Guard Locals, Council
127, AFL-CIO, with necessary travel and per diem expenses, for the time
spent in contract negotiations, in compliance with our ground rules and
make such representatives whole for such travel and per diem expenses
which they have not been paid.
WE WILL reinstate the grievance procedure and the procedure for
processing disciplinary and adverse actions as provided in the expired
collective bargaining agreement with American Federation of Government
Employees, Ohio Council of Air National Guard Locals, Council 127,
AFL-CIO.
(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 of the Federal Labor Relations Authority, Region V,
whose address is: 175 West Jackson Boulevard, Suite A-1359, Chicago,
Illinois 60604, and whose telephone number is: (312) 353-6306.