Secretary of the Navy, Department of the Navy, Pentagon (Respondent) and American Federation of Government Employees, AFL-CIO (Complainant)




[ v01 p104 ]
01:0104(8)CA
The decision of the Authority follows:


 1 FLRA No. 8
 
 SECRETARY OF THE NAVY, DEPARTMENT OF
 THE NAVY, PENTAGON
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Complainant
 
                                            Case No. 22-6787(CA)
                                            A/SLMR No. 924
                                            FLRC No. 77A-146
 
                      SUPPLEMENTAL DECISION AND ORDER
 
    THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS
 ISSUED HIS DECISION AND ORDER IN THE ABOVE-REFERENCED CASE, FINDING THAT
 THE RESPONDENT HAD VIOLATED SECTION 19(A)(1) AND (6) OF EXECUTIVE ORDER
 11491, AS AMENDED.  ON DECEMBER 29, 1978, THE FEDERAL LABOR RELATIONS
 COUNCIL (COUNCIL) ISSUED ITS DECISION ON APPEAL IN THIS MATTER,
 SUSTAINING IN PART AND SETTING ASIDE IN PART, THE UNFAIR LABOR PRACTICE
 FINDINGS OF THE ASSISTANT SECRETARY, AND REMANDED THE CASE FOR
 APPROPRIATE ACTION CONSISTENT WITH THE COUNCIL'S DECISION.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY, IN A MATTER SUCH AS HERE
 INVOLVED, WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF
 REORGANIZATION PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF
 FUNCTIONS IS IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS (44 F.R. 7).  THE AUTHORITY CONTINUES TO BE
 RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
 SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
 HEREBY FINDS IN THE INSTANT CASE THAT THE RESPONDENT VIOLATED SECTION
 19(A)(1) AND (6) OF E.O. 11491, AS AMENDED, IN THE MANNER AND TO THE
 EXTENT SET FORTH IN THE DECISION OF THE COUNCIL, /1/ AND, CONSISTENT
 WITH THAT DECISION, THE AUTHORITY HEREBY ISSUES THE FOLLOWING ORDER:
 
                                   ORDER
 
    PURSUANT TO SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS OF
 THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
 THAT THE SECRETARY OF THE NAVY, DEPARTMENT OF THE NAVY, PENTAGON, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING TO PROVIDE THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, PURSUANT TO ITS NATIONAL CONSULTATION RIGHTS UNDER
 EXECUTIVE ORDER 11491, AS AMENDED, AN OPPORTUNITY TO CONSULT IN PERSON
 AND TO PRESENT ITS VIEWS IN WRITING ON PERSONNEL POLICY MATTERS.
 
    (B) REFUSING TO CONSULT WITH THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, UPON REQUEST ON PERSONNEL MATTERS.
 
    (C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION:
 
    (A) UPON REQUEST, CONSULT WITH THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, PURSUANT TO ITS NATIONAL CONSULTATION RIGHTS UNDER
 THE EXECUTIVE ORDER AND TO THE EXTENT CONSONANT WITH LAW AND
 REGULATIONS, CONCERNING THE PROCEDURES USED IN IMPLEMENTING THE AGENCY'S
 NEW CONTRACTING OUT POLICY AND THE IMPACT OF THE CHANGE IN POLICY ON THE
 ADVERSELY AFFECTED EMPLOYEES.
 
    (B) POST AT UNITS OF ALL DEPARTMENT OF THE NAVY FACILITIES AND
 INSTALLATIONS WHERE THE COMPLAINANT IS THE EXCLUSIVE REPRESENTATIVE
 COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED
 BY THE FEDERAL LABOR RELATIONS AUTHORITY.  UPON RECEIPT OF SUCH FORMS
 THEY SHALL BE SIGNED BY THE SECRETARY OF THE NAVY AND SHALL BE POSTED
 AND MAINTAIN FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES,
 INCLUDING BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES
 ARE CUSTOMARILY POSTED.  THE COMMANDING OFFICER OF EACH FACILITY OR
 INSTALLATION SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE
 NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
 30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
 COMPLY HEREWITH.
 
    IT IS HEREBY FURTHER ORDERED THAT SO MUCH OF THE COMPLAINT IN CASE
 NO. 22-6787(CA) FOUND NOT TO BE VIOLATIVE OF THE EXECUTIVE ORDER IN THE
 DECISION OF THE FEDERAL LABOR RELATIONS COUNCIL BE, AND IT HEREBY IS,
 DISMISSED.
 
                            RONALD W. HAUGHTON
 
                                 CHAIRMAN
 
                           HENRY B. FRAZIER III
 
                                  MEMBER
 
    ISSUED:  MARCH 22, 1979
 
                                 APPENDIX
 
        NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
 
          THE FEDERAL LABOR RELATIONS AUTHORITY WE HEREBY NOTIFY
 
                           OUR EMPLOYEES THAT:
 
    WE WILL NOT FAIL TO PROVIDE THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, PURSUANT TO ITS NATIONAL CONSULTATION RIGHTS UNDER
 EXECUTIVE ORDER 11491, AS AMENDED, AN OPPORTUNITY TO CONSULT IN PERSON
 AND PRESENT ITS VIEWS IN WRITING ON PERSONNEL POLICY MATTERS.
 
    WE WILL NOT REFUSE TO CONSULT WITH THE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, UPON REQUEST, ON PERSONNEL POLICY
 MATTERS.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
    WE WILL, UPON REQUEST BY THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, PURSUANT TO ITS NATIONAL CONSULTATION RIGHTS UNDER
 THE ORDER, CONSULT WITH THAT ORGANIZATION, TO THE EXTENT CONSONANT WITH
 LAW AND REGULATIONS, CONCERNING THE PROCEDURES USED IN IMPLEMENTING OUR
 1975 POLICY ON CONTRACTING OUT, AND THE IMPACT OF THE CHANGE IN POLICY
 ON ADVERSELY AFFECTED EMPLOYEES.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  . . .  BY:  . . .
 
                                (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 AUTHORITY AGENT IN CHARGE, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
 ADDRESS IS:  ROOM 509 VANGUARD BUILDING, P.O. BOX 19257, 1111 20TH
 STREET, N.W., WASHINGTON, D.C.  20036.
 
           DECISION ON APPEAL FROM ASSISTANT SECRETARY DECISION
 
                            BACKGROUND OF CASE
 
    THIS APPEAL AROSE FROM A DECISION OF THE ASSISTANT SECRETARY HOLDING,
 IN ESSENCE, THAT THE SECRETARY OF THE NAVY (THE AGENCY) VIOLATED SECTION
 19(A)(1) AND (6) OF THE ORDER BY:  (A) FAILING AND REFUSING TO NOTIFY
 THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (THE UNION),
 PURSUANT TO ITS NATIONAL CONSULTATION RIGHTS UNDER THE ORDER, OF
 PROPOSED SUBSTANTIVE CHANGES IN PERSONNEL POLICIES THAT AFFECT EMPLOYEES
 IT REPRESENTS AND PROVIDE IT AN OPPORTUNITY TO COMMENT ON SUCH CHANGES;
 (B) FAILING TO PROVIDE AN OPPORTUNITY FOR THE UNION TO CONSULT IN PERSON
 AND TO PRESENT ITS VIEWS IN WRITING ON PERSONNEL POLICY MATTERS;  AND
 (C) REFUSING TO CONSULT WITH THE UNION ON PERSONNEL POLICY MATTERS.
 
    ACCORDING TO THE ASSISTANT SECRETARY'S DECISION, THE CASE AROSE WHEN
 THE AGENCY ISSUED A NEW INSTRUCTION REFLECTING WHAT THE ASSISTANT
 SECRETARY FOUND TO BE A "NEW POLICY, WHICH ESSENTIALLY WAS ONE OF
 ACCELERATING CONTRACTING OUT OF CERTAIN NAMED SERVICES . . ." THE UNION,
 WHICH WAS GRANTED NATIONAL CONSULTATION RIGHTS BY THE AGENCY IN 1971,
 LEARNED OF THIS NEW POLICY THROUGH A NEWSPAPER ARTICLE.  THE UNION
 REQUESTED AND RECEIVED COPIES OF THE AGENCY'S INSTRUCTION.  IT THEN
 SOUGHT TO CONSULT WITH THE AGENCY, BUT ITS REQUEST WAS DENIED AND THE
 INSTANT UNFAIR LABOR PRACTICE COMPLAINT ULTIMATELY FOLLOWED.
 
    THE ASSISTANT SECRETARY FOUND, IN PERTINENT PART, THAT SECTION 9(B)
 OF THE ORDER ESTABLISHES THREE DISTINCT RIGHTS FOR A LABOR ORGANIZATION
 WHICH HAS BEEN ACCORDED NATIONAL CONSULTATION RIGHTS.  /2/ THE FIRST
 REQUIRES THAT THE LABOR ORGANIZATION BE NOTIFIED BY AN AGENCY OF
 PROPOSED SUBSTANTIVE CHANGES IN PERSONNEL POLICIES AFFECTING UNIT
 EMPLOYEES, AND THAT THE AGENCY PROVIDE AN OPPORTUNITY FOR THE
 ORGANIZATION TO COMMENT THEREON.  THE SECOND IS HE LABOR ORGANIZATION'S
 RIGHT TO SUGGEST CHANGES IN THE AGENCY'S PERSONNEL POLICIES AND TO HAVE
 ITS VIEWS CAREFULLY CONSIDERED.  THE THIRD IS THE LABOR ORGANIZATION'S
 RIGHT TO CONSULT IN PERSON, UPON REQUEST, WITH AGENCY MANAGEMENT ON
 PERSONNEL MATTERS AND TO PRESENT ITS VIEWS THEREON IN WRITING.  WITH
 RESPECT TO THE FOURTH AND LAST SENTENCE OF SECTION 9(B), NAMELY THAT AN
 AGENCY IS NOT REQUIRED TO CONSULT WITH A LABOR ORGANIZATION ON ANY
 MATTER WHICH THE AGENCY WOULD NOT BE REQUIRED TO MEET AND CONFER IF THE
 LABOR ORGANIZATION WERE ENTITLED TO EXCLUSIVE RECOGNITION, THE ASSISTANT
 SECRETARY CONCLUDED THAT:  "THIS LIMITATION . . .DOES NOT . . . AFFECT
 THE RIGHT OF AN ORGANIZATION POSSESSING NATIONAL CONSULTATION RIGHTS TO
 COMMENT, AS DISTINGUISHED FROM CONSULT, UPON SUBSTANTIVE CHANGES IN
 PERSONNEL POLICIES PROPOSED EITHER BY THE AGENCY OR BY THE
 ORGANIZATION." IN THIS REGARD, THE ASSISTANT SECRETARY STATED, "THE
 RIGHT TO NOTICE AND AN OPPORTUNITY TO COMMENT IS NOT, IN MY VIEW,
 LIMITED TO THOSE MATTERS CONCERNING WHICH AN AGENCY IS REQUIRED TO MEET
 AND CONFER."
 
    HAVING CONCLUDED THAT THE NEW POLICY ON CONTRACTING OUT WAS A
 "SUBSTANTIVE CHANGE IN PERSONNEL POLICY," THE ASSISTANT SECRETARY
 FURTHER CONCLUDED THAT ITS ISSUANCE WITHOUT NOTIFICATION AND AN
 OPPORTUNITY TO COMMENT VIOLATED SECTION 19(A)(1) AND (6).  MOREOVER, THE
 ASSISTANT SECRETARY NOTED THAT ALTHOUGH THE ACTUAL DECISION OF AN AGENCY
 TO CONTRACT OUT HAS BEEN HELD TO BE A RESERVED RIGHT OF MANAGEMENT, AND
 THEREFORE IS NOT NEGOTIABLE WITH A LABOR ORGANIZATION HOLDING EXCLUSIVE
 RECOGNITION, SUCH LABOR ORGANIZATION MAY NEGOTIATE OVER THE
 IMPLEMENTATION AND IMPACT OF SUCH A DECISION TO CONTRACT OUT.  THUS, THE
 ASSISTANT SECRETARY CONCLUDED THAT, WHERE A UNION HOLDS NATIONAL
 CONSULTATION RIGHTS, IT MAY CONSULT OVER THE IMPACT AND IMPLEMENTATION
 OF NEW POLICIES ON CONTRACTING OUT WHERE SUCH POLICIES CONSTITUTE A
 SUBSTANTIVE CHANGE.  THEREFORE, HE FOUND THAT THE FAILURE OF THE AGENCY
 HEREIN TO GIVE THE UNION NOTICE OF THE NEW POLICY VIOLATED SECTION
 19(A)(1) AND (6) BECAUSE IT DEPRIVED THE UNION OF ITS RIGHT TO CONSULT
 ON THE MATTER (PROCEDURES IMPLEMENTING ITS POLICY AND THE IMPACT
 THEREOF) IN PERSON AND TO PRESENT ITS VIEWS THEREON IN WRITING.
 
    THE AGENCY APPEALED THE ASSISTANT SECRETARY'S DECISION TO THE
 COUNCIL.  THE COUNCIL ACCEPTED THE AGENCY'S PETITION FOR REVIEW, HAVING
 CONCLUDED THAT THE ASSISTANT SECRETARY'S DECISION RAISED A MAJOR POLICY
 ISSUE AS TO THE MEANING AND APPLICATION OF SECTION 9(B) OF THE ORDER IN
 THE CIRCUMSTANCES OF THIS CASE.  THE COUNCIL ALSO DETERMINED THAT THE
 AGENCY'S REQUEST FOR A STAY MET THE CRITERIA FOR GRANTING STAYS SET
 FORTH IN SECTION 2411.47(E)(2) OF THE COUNCIL'S RULES AND GRANTED THE
 REQUEST.  ONLY THE UNION FILED A BRIEF ON THE MERITS, AS PROVIDED FOR IN
 SECTION 2411.16 OF THE COUNCIL'S RULES.
 
                                  OPINION
 
    AS NOTED ABOVE, THE COUNCIL CONCLUDED THAT THE DECISION OF THE
 ASSISTANT SECRETARY HEREIN RAISED A MAJOR POLICY ISSUE AS TO THE MEANING
 AND APPLICATION OF SECTION 9(B) OF THE ORDER IN THE CIRCUMSTANCES OF
 THIS CASE.  SPECIFICALLY, THE QUESTION BEFORE THE COUNCIL IS THE
 PROPRIETY OF THE ASSISTANT SECRETARY'S FINDING THAT THE LAST SENTENCE OF
 SECTION 9(B) OF THE ORDER ("AN AGENCY IS NOT REQUIRED TO CONSULT WITH A
 LABOR ORGANIZATION ON ANY MATTER ON WHICH IT WOULD NOT BE REQUIRED TO
 MEET AND CONFER IF THE ORGANIZATION WERE ENTITLED TO EXCLUSIVE
 RECOGNITION") DOES NOT APPLY AS A LIMITATION OF THE UNION'S RIGHT TO
 COMMENT UPON PROPOSED SUBSTANTIVE CHANGES IN PERSONNEL POLICIES, AS
 PROVIDED IN THE FIRST SENTENCE OF SECTION 9(B).  THAT IS, THE QUESTION
 IS WHETHER THE ASSISTANT SECRETARY PROPERLY RULES THAT "THE RIGHT TO
 NOTICE AND AN OPPORTUNITY TO COMMENT (AS PROVIDED IN THE FIRST SENTENCE
 OF SECTION 9(B)) IS NOT . . . LIMITED TO THOSE MATTERS CONCERNING WHICH
 AN AGENCY IS REQUIRED TO MEET AND CONFER."
 
    IN THE COUNCIL'S VIEW, THE ASSISTANT SECRETARY'S DETERMINATION IN THE
 ABOVE REGARD IS INCONSISTENT WITH THE PURPOSES OF THE ORDER AND MUST BE
 SET ASIDE.
 
    AS THE ASSISTANT SECRETARY CORRECTLY CONCLUDED, THE FIRST THREE
 SENTENCES OF SECTION #(B) OF THE ORDER SET FORTH CERTAIN AFFIRMATIVE
 RIGHTS WHICH ACCRUE TO A LABOR ORGANIZATION HOLDING NATIONAL
 CONSULTATION RIGHTS.  IN SUMMARY, THE RIGHTS ARE:  TO BE NOTIFIED OF
 PROPOSED SUBSTANTIVE CHANGES IN PERSONNEL POLICIES AND BE PROVIDED AN
 OPPORTUNITY TO COMMENT ON THE PROPOSED CHANGES;  TO SUGGEST CHANGES IN
 THE AGENCY'S PERSONNEL POLICIES AND HAVE ITS VIEWS CAREFULLY CONSIDERED;
  AND TO CONSULT ON PERSONNEL POLICY MATTERS, AND AT ALL TIMES PRESENT
 ITS VIEWS THEREON IN WRITING.  HOWEVER, CONTRARY TO THE ASSISTANT
 SECRETARY'S FURTHER CONCLUSION, THE LIMITATION IN THE LAST SENTENCE OF
 SECTION 9(B), NAMELY THAT AN AGENCY IS NOT REQUIRED TO CONSULT ON ANY
 MATTER ON WHICH IT WOULD NOT BE REQUIRED TO NEGOTIATE /3/ IF THE
 ORGANIZATION WERE ENTITLED TO EXCLUSIVE RECOGNITION, DOES NOT APPLY TO
 THE UNION'S RIGHT TO COMMENT UNDER THE FIRST SENTENCE OF SECTION 9(B) IS
 INCORRECT.
 
    AS DISCUSSED ABOVE, THE ASSISTANT SECRETARY'S DETERMINATION WITH
 RESPECT TO THE LIMITATION ON THE RIGHT TO CONSULT IN THE LAST SENTENCE
 OF SECTION 9(B) MAKES A DISTINCTION BETWEEN THE RIGHT TO COMMENT IN THE
 FIRST SENTENCE OF THE SECTION AND THE RIGHT TO CONSULT OTHERWISE GRANTED
 THROUGHOUT THE SECTION.  IN OUR VIEW, NO SUCH DISTINCTION IS INTENDED.
 THAT IS, ALL RIGHTS PROVIDED FOR IN SECTION 9(B) ARE INTEGRAL ASPECTS OF
 THE RIGHT TO CONSULT.  THIS CONCLUSION IS MANDATED BY THE APPELLATION
 "NATIONAL CONSULTATION RIGHTS" WHICH APPLIES TO ALL OF SECTION 9 OF THE
 ORDER.  IT IS FURTHER DICTATED BY THE SPECIFIC LANGUAGE OF SECTION
 19(A)(6) OF THE ORDER WHICH PROVIDES, IN RELEVANT PART, THAT IT SHALL BE
 AN UNFAIR LABOR PRACTICE FOR AGENCY MANAGEMENT TO REFUSE TO CONSULT AS
 REQUIRED BY THE ORDER.  /4/
 
    SINCE ALL THREE OF THE RIGHTS PROVIDED FOR IN SECTION 9(B) ARE
 ASPECTS OF THE RIGHT TO CONSULT, IT IS OBVIOUS THAT THE LIMITATION ON
 SUCH RIGHT IN THE LAST SENTENCE OF SECTION 9(B) APPLIES UNIFORMLY TO
 EACH OF THESE ASPECTS OF THE RIGHT.
 
    MOREOVER, TO HOLD AS DID THE ASSISTANT SECRETARY, THAT THE UNION HAD
 A RIGHT TO BE NOTIFIED OF, AND TO COMMENT ON, THE AGENCY'S PROPOSED
 CHANGE IN ITS POLICY ON CONTRACTING OUT PRIOR TO THE AGENCY'S FINAL
 DECISION THEREON IS CONTRARY TO SECTION 9(B) AND 12(B)(5) OF THE ORDER.
 THUS, AS WE HAVE SAID HEREIN, UNDER THE LAST SENTENCE OF SECTION 9(B) OF
 THE ORDER, THE UNION'S RIGHTS TO NOTIFICATION AND COMMENT UNDER THE
 FIRST SENTENCE ARE LIMITED TO MATTERS WHICH FALL WITHIN THE SCOPE OF
 NEGOTIATION AND HENCE ARE LIMITED BY, AMONG OTHER THINGS, SECTION
 12(B)(5) OF THE ORDER.  AS THE COUNCIL HELD IN TIDEWATER, /5/ THE
 AGENCY'S DECISION WITH RESPECT TO CONTRACTING OUT IS NOT SUBJECT TO
 NEGOTIATION BY THE EXCLUSIVE REPRESENTATIVE UNDER SECTION 12(B)(5) OF
 THE ORDER.  LIKEWISE, THE AGENCY'S DECISION TO CHANGE ITS POLICY
 REGARDING CONTRACTING OUT IS NOT SUBJECT TO CONSULTATION WITH, INCLUDING
 NOTIFICATION TO AND COMMENT BY, A UNION HOLDING NATIONAL CONSULTATION
 RIGHTS.  /6/ IN THE PRESENT CASE, THE ASSISTANT SECRETARY WOULD
 INTERPRET SECTION 9(B) OF THE ORDER AS GRANTING A UNION HOLDING NATIONAL
 CONSULTATION RIGHTS A RIGHT ENFORCEABLE UNDER SECTION 19(A)(6) TO BE
 INVOLVED IN THAT DECISION:  THAT IS, AN ENFORCEABLE RIGHT TO BE NOTIFIED
 OF AND TO COMMENT ON THE DECISION TO CHANGE THE POLICY ON CONTRACTING
 OUT.  YET AN EXCLUSIVE REPRESENTATIVE IS NOT ACCORDED SUCH RIGHT UNDER
 THE DUTY TO "NEGOTIATE" WHICH IS ALONE ENFORCEABLE BY SUCH EXCLUSIVE
 REPRESENTATIVE UNDER SECTION 19(A)(6).  CONSEQUENTLY, THE ASSISTANT
 SECRETARY'S RULING WHICH, IN EFFECT, PROVIDES GREATER RIGHTS FOR LABOR
 ORGANIZATIONS HOLDING NATIONAL CONSULTATION RIGHTS THAN TO EXCLUSIVE
 REPRESENTATIVES IS CLEARLY INCONSISTENT WITH THE PURPOSES OF THE ORDER.
 THEREFORE, TO THE EXTENT THAT THE ASSISTANT SECRETARY PREDICATED THIS
 FINDING THAT THE AGENCY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER
 BY FAILING TO NOTIFY THE UNION OF THE PROPOSED CHANGE IN ITS CONTRACTING
 OUT POLICY AND TO AFFORD THE UNION AN OPPORTUNITY TO COMMENT ON THE
 PROPOSED CHANGE, SUCH FINDING MUST BE SET ASIDE.
 
    HOWEVER, AS ALREADY MENTIONED, THE ASSISTANT SECRETARY ALSO FOUND
 THAT THE AGENCY VIOLATED SECTION 19(A)(1) AND (6) BY DEPRIVING THE UNION
 OF THE RIGHT TO CONSULT ABOUT PROCEDURES IMPLEMENTING ITS POLICY ON
 CONTRACTING OUT AND THE IMPACT THEREOF.  THE COUNCIL PREVIOUSLY HELD IN
 THE TIDEWATER CASE THAT MATTERS RELATED TO THE IMPACT AND IMPLEMENTATION
 OF CONTRACTING OUT ARE NEGOTIABLE.  /7/ SINCE SUCH MATTERS ARE
 NEGOTIABLE WITHIN THE CONTEXT OF AN EXCLUSIVE BARGAINING RELATIONSHIP,
 THEY ARE NOT EXCEPTED FROM THE OBLIGATION TO CONSULT BY THE LAST
 SENTENCE OF SECTION 9(B) OF THE ORDER.  CONSEQUENTLY, TO THE EXTENT THAT
 THE ASSISTANT SECRETARY PREDICATED HIS 19(A)(1) AND(6) FINDING ON THE
 AGENCY'S FAILURE TO MEET ITS SECTION 9(B) OBLIGATION BY CONSULTING WITH
 THE UNION ON THE MATTER OF THE IMPACT AND IMPLEMENTATION OF THE AGENCY'S
 DETERMINATION TO CHANGE ITS CONTRACTING OUT POLICY, THE ASSISTANT
 SECRETARY'S DECISION IS CLEARLY CONSISTENT WITH THE PURPOSES OF THE
 ORDER AND MUST BE SUSTAINED.
 
                                CONCLUSION
 
    FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2411.18(B) OF THE
 COUNCIL'S RULES OF PROCEDURE, WE SUSTAIN IN PART AND SET ASIDE IN PART
 THE ASSISTANT SECRETARY'S DECISION AND ORDER AND REMAND THE CASE FOR
 APPROPRIATE ACTION CONSISTENT WITH OUR DECISION HEREIN.
 
    BY THE COUNCIL.
 
                             HAROLD T. KESSLER
 
                         FOR HENRY B. FRAZIER III
 
                            EXECUTIVE DIRECTOR
 
    ISSUED:  DECEMBER 29, 1978
 
    /1/ 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 "HAD NOT BEEN ENACTED" (92 STAT.
 1191).  THE SUPPLEMENTAL 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.
 
    /2/ SECTION 9(B) OF THE ORDER PROVIDES AS FOLLOWS:
 
    WHEN A LABOR ORGANIZATION HAS BEEN ACCORDED NATIONAL CONSULTATION
 RIGHTS, THE AGENCY,
 
    THROUGH APPROPRIATE OFFICIALS, SHALL NOTIFY REPRESENTATIVES OF THE
 ORGANIZATION OF PROPOSED
 
    SUBSTANTIVE CHANGES IN PERSONNEL POLICIES THAT AFFECT EMPLOYEES IT
 REPRESENT