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22:0457(46)CA
The decision of the Authority follows:
22 FLRA No. 46
U.S. ARMY ADJUTANT GENERAL
PUBLICATIONS CENTER
ST. LOUIS, MISSOURI
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2761
Charging Party/Union
Case No. 7-CA-40543
DECISION AND ORDER
I. Statement of the Case
This case comes before the Authority as the result of exceptions
being filed by the U.S. Army Adjutant General Publications Center, St.
Louis, Missouri (Respondent) to the Administrative Law Judge's Decision
in which she found that the Respondent violated section 7116(a)(1) and
(5) of the Federal Service Labor-Management Relations Statute (Statute).
The General Counsel filed on opposition to Respondent's exceptions.
The issue in this case involves whether the Respondent violated section
7116(a)(1) and (5) of the Statute by changing unilaterally and without
notice, the established procedures by which the American Federation of
Government Employees, AFL-CIO, Local 2761 (AFGE) was allowed to utilize
Respondent's photocopy machine and internal mail system.
II. Facts
AFGE is the exclusive representative of the employees of the
Respondent. The AFGE and Respondent were parties to a collective
bargaining agreement that was signed in 1981 and has since expired but
whose established conditions of employment still remain in effect. From
1978 until May 30, 1984, four AFGE officers had access to the
Respondent's copying facilities and internal mail system which they used
on a daily basis for union business. The AFGE made use of these
facilities pursuant to permission it had received from Respondent.
The record indicates that in the interest of security and pursuant to
its management rights under section 7106(a)(1) of the Statute to
determine the internal security practices of the agency, on May 30,
1984, the Respondent moved the photocopy machine and internal mail
system into a room with restricted access. AFGE was informed on May 31,
1984, that in order to use this facility, it would have to submit its
mail to the mail and file clerk who would place it in the internal mail
system; further to obtain copies, AFGE must place the material in an
incoming box where it would be handled as soon as possible by the mail
and file clerk. AFGE was not given prior notification of Respondent's
intent to make these changes nor was it given any chance to give input
on these changes. On May 31, 1984, upon learning of the changes, AFGE
requested the Respondent to bargain about such changes but the request
was ignored.
III. Judge's Determination
The Judge concluded that the Respondent violated section 7116(a)(1)
and (5) of the Statute by changing the established procedures by which
AFGE utilized the photocopy machine and internal mail system without
providing adequate prior notice or an opportunity to bargain over the
procedures and appropriate arrangements for employees adversely affected
by the exercise of such management rights. Applying the criteria set
forth in Federal Correctional Institution, 8 FLRA 604, 606 (1982), the
Judge found that a status quo ante remedy would be appropriate and
ordered the Respondent to rescind its changes and bargain concerning the
implementation procedures and the impact upon adversely affected
employees of any changes proposed in the procedures by which AFGE may
use the photocopy machine and the internal mail system.
IV. Positions of the Parties
The Respondent does not take exception to the Judge's finding that it
violated section 7116(a)(1) and (5) of the Statute but only to the
Judge's ordered status quo ante remedy. The Respondent argues that the
status quo ante remedy which orders it to rescind the changes would
interfere with its internal security and severely disrupt its
operations, thus impairing the efficiency and effectiveness of such
operations.
The General Counsel argues, in its opposition, that the status quo
ante remedy is appropriate noting that Respondent introduced no evidence
to substantiate its assertions that a return to the status quo would be
time consuming, expensive and cumbersome.
V. Analysis
In agreement with the Judge, and noting the absence of exceptions,
the Authority finds that the Respondent violated section 7116(a)(1) and
(5) of the Statute by changing the established procedures by which the
AFGE utilized the photocopy machine and internal mail system, without
providing AFGE with prior notice and an opportunity to bargain over the
impact and implementation of the changes.
However, in disagreement with the Judge, the Authority finds that the
status quo ante order is not warranted. In this regard, the Authority
notes that the Judge found and the parties agreed that the May 31, 1984
changes made by the Respondent were an exercise of its right to
determine internal security practices under section 7106(a)(1) of the
Statute. /1/ In the Authority's view, where a management action is
based on its right to determine internal security practices of the
agency, greater weight must be given to the disruptive effect in
applying the factors contained in Federal Correctional Institution, 8
FLRA 604 (1982). To require the Respondent to rescind the changes which
involved Respondent's internal security would be by its very nature
disruptive to Respondent's operation. Further, the Authority notes that
Respondent's changes were not made willfully for the purpose of
preventing AFGE from using the internal mail system and photocopy
machine, but rather only changed the procedure by which AFGE could gain
access to these facilities. Although it is true that the changes in
procedures did make access more difficult, in the Authority's view,
these problems would best be resolved through mutual give and take
bargaining concerning the procedures to be observed in implementing the
changes involved to the satisfaction of all parties. /2/
V. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and thus affirms those rulings. The Authority has considered
the Judge's Decision, the positions of the parties and the entire
record, and adopts the Judge's findings, conclusions and recommended
Order only to the extent consistent with the above.
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 U.S. Army Adjutant
General, Publications Center, St. Louis, Missouri, shall:
1. Cease and desist from:
(a) Instituting changes in the established procedures by which
the American Federation of Government Employees, AFL-CIO, Local
2761 uses official facilities, such as the photocopy machine and
internal mail system, without giving adequate notice to Local 2761
and affording it the opportunity to negotiate concerning the
procedures to be observed in implementing such changes and
concerning appropriate arrangements for employees adversely
affected by such changes.
(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 Federal Service Labor-Management Relations
Statute:
(a) Notify the American Federation of Government Employees,
AFL-CIO, Local 2761, the exclusive representative of its
employees, of any intended changes in the procedures by which
Local 2761 uses official facilities, such as the photocopy machine
and the internal mail system, and upon request, negotiate
concerning the procedures to be observed in implementing such
changes and concerning appropriate arrangements for employees
adversely affected by such changes.
(b) Post at its St. Louis, Missouri 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 Commander of the U.S. Army Adjutant General
Publications Center, 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 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.
Issued, Washington, D.C., July 9, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) Section 7106(a)(1) of the Statute provides in pertinent part,
that:
Section 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency --
(1) to determine the . . . internal security practices of the
agency(.)
(2) See Veterans Administration, Central Office, Washington, D.C. and
Veterans Administration Regional Office, Cleveland, Ohio, 20 FLRA No. 27
(1985) and Department of the Treasury, U.S. Customs Service, 19 FLRA No.
128 (1985).
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL
LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT institute changes in the established procedures by which
the American Federation of Government Employees, AFL-CIO, Local 2761
uses official facilities, such as the photocopy machine and internal
mail system, without giving adequate notice to Local 2761 and affording
it the opportunity to negotiate concerning the procedures to be observed
in implementing such changes and concerning appropriate arrangements for
employees adversely affected by such changes.
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 notify the American Federation of Government Employees,
AFL-CIO, Local 2761, the exclusive representative of our employees, of
any intended changes in the procedures by which Local 2761 uses official
facilities, such as the photocopy machine and the internal mail system,
and upon request, negotiate concerning the procedures to be observed in
implementing such changes and concerning appropriate arrangements for
employees adversely affected by such changes.
(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 its provisions, they may communicate directly with the Regional
Director, Region VII Federal Labor Relations Authority, whose address
is: 535 16th Street, Suite 310, Denver, Colorado 80202 and whose
telephone number is: (303) 837-5224, or FTS 8-564-5224.