[ v22 p457 ]
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.