Department of the Navy, Office of Civilian Personnel (Respondent) and National Federation of Federal Employees (Complainant) 




[ v01 p168 ]
01:0168(21)CA
The decision of the Authority follows:


 1 FLRA No. 21
 
 DEPARTMENT OF THE NAVY,
 OFFICE OF CIVILIAN PERSONNEL
 Respondent
 
 and
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES
 Complainant
 
                                            Assistant Secretary
                                            Case No. 22-07332(CA)
                                            A/SLMR No. 1012
                                            FLRC No. 78A-47
 
                      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 DEPARTMENT OF THE NAVY, OFFICE OF CIVILIAN PERSONNEL, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING TO PROVIDE THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
 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 PROPOSED SUBSTANTIVE CHANGES IN PERSONNEL
 POLICY.
 
    (B) 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 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, 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
 CONSOLIDATION OF SUPPORT SERVICES 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 DIRECTOR OF THE OFFICE OF CIVILIAN PERSONNEL
 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.  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. 22-07332(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:  APRIL 10, 1979
 
                                 APPENDIX
 
        NOTICE TO ALL EMPLOYEES PURSUANT TO A SUPPLEMENTAL DECISION
 
           AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY WE
 
                    HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT FAIL TO PROVIDE THE NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, 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 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 OF THE NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, 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 THE NEW
 CONSOLIDATION OF SUPPORT SERVICES POLICY, 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
 THAT THE DEPARTMENT OF THE NAVY, OFFICE OF CIVILIAN PERSONNEL (THE
 AGENCY) VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY FAILING TO
 PROVIDE THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES (THE UNION), WHICH
 HAD PREVIOUSLY BEEN GRANTED NATIONAL CONSULTATION RIGHTS UNDER SECTION
 9(B) OF THE ORDER, /2/ WITH NOTICE OF AND AN OPPORTUNITY TO COMMENT ON A
 PROPOSED SUBSTANTIVE CHANGE IN PERSONNEL POLICY (I.E., AN AGENCYWIDE
 PROPOSAL FOR THE CONSOLIDATION OF CERTAIN SUPPORT FACILITIES), AS WELL
 AS BY FAILING TO NOTIFY THE UNION OF THE PROPOSED CHANGE AND TO AFFORD
 IT AN OPPORTUNITY TO CONSULT ABOUT THE IMPACT AND IMPLEMENTATION
 THEREOF.
 
    ACCORDING TO THE ASSISTANT SECRETARY'S DECISION, BASED UPON
 UNDISPUTED FACTS AS STIPULATED BY THE PARTIES, THE CASE AROSE WHEN THE
 SECRETARY OF THE NAVY ISSUED A NEWS RELEASE PROPOSING A NUMBER OF
 MANAGEMENT ACTIONS DIRECTED TOWARD THE REDUCTION OF OVERHEAD AND
 SUPPORT
 COSTS, AMONG WHICH ACTIONS WAS A STUDY OF THE POSSIBLE TERMINATION OF
 AIR OPERATIONS AND THE CONSOLIDATION OF REMAINING SUPPORT FACILITIES AT
 THE NAVAL AIR ENGINEERING CENTER, LAKEHURST, NEW JERSEY.  FOLLOWING THIS
 NEWS RELEASE, THE CHIEF OF THE NAVAL AIR SYSTEMS COMMAND (NASC) ISSUED A
 MEMORANDUM DIRECTING THE CONSOLIDATION OF THE LAKEHURST NAVAL AIR
 ENGINEERING CENTER WITH THE OTHER TWO LAKEHURST COMMANDS, RESULTING IN
 THE DISPLACEMENT OF APPROXIMATELY 59 CIVILIAN EMPLOYEES.  THIS NASC
 MEMORANDUM, AS FOUND BY THE ASSISTANT SECRETARY, "WAS THE (UNION'S)
 FIRST NOTICE OF AN AGENCY-WIDE PROPOSAL FOR CONSOLIDATION OF ITS SUPPORT
 FACILITIES AS OUTLINED IN THE SECRETARY OF THE NAVY'S NEWS RELEASE . . .
 "THE UNION THEREUPON FILED AN UNFAIR LABOR PRACTICE COMPLAINT ALLEGING
 THAT THE AGENCY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER "WHEN ITS
 AGENT, THE (NASC), DIRECTED THE REALIGNMENT OF ITS FIELD ACTIVITIES AT
 LAKEHURST, NEW JERSEY, WITHOUT PRIOR NATIONAL CONSULTATION WITH THE
 (UNION)."
 
    THE ASSISTANT SECRETARY FOUND, CONTRARY TO THE AGENCY'S CONTENTION,
 THAT THE PROPOSAL BY THE SECRETARY OF THE NAVY TO CONSOLIDATE SUPPORT
 ACTIVITIES AGENCYWIDE WAS A "SUBSTANTIVE CHANGE IN PERSONNEL POLICY"
 WITHIN THE MEANING OF SECTION 9(B) OF THE ORDER AND SECTION 2412.1 OF
 THE COUNCIL'S REGULATIONS.  /3/ ACCORDINGLY, AND CITING HIS PREVIOUS
 DECISION IN SECRETARY OF THE NAVY, DEPARTMENT OF THE NAVY, PENTAGON,
 A/SLMR 924, THE COUCIL'S DECISION IN WHICH (FLRC 77A-146) ISSUED THIS
 DATE, THE ASSISTANT SECRETARY HELD THAT THE AGENCY HAD VIOLATED SECTION
 19(A)(1) AND (6) OF THE ORDER BY FAILING TO NOTIFY THE UNION OF THE
 PROPOSED CONSOLIDATION, THEREBY DEPRIVING THE UNION OF ITS RIGHT UNDER
 SECTION 9(B) TO COMMENT ON THAT PROPOSED CHANGE.  THE ASSISTANT
 SECRETARY FURTHER HELD (AGAIN CITING HIS DECISION IN SECRETARY OF THE
 NAVY, SUPRA) THAT, ALTHOUGH THE AGENCY WAS NOT OBLIGATED TO CONSULT WITH
 THE UNION ABOUT THE ACTUAL DECISION TO CONSOLIDATE SUPPORT SERVICES, /4/
 IT WAS NEVERTHELESS OBLIGATED TO CONSULT ABOUT THE IMPACT AND
 IMPLEMENTATION OF SUCH DECISION, AND THAT ITS FAILURE TO PROVIDE THE
 UNION WITH PRIOR NOTICE OF THE DECISION AND TO AFFORD IT AN OPPORTUNITY
 TO SO CONSULT ALSO VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER.
 ACCORDINGLY, HE ISSUED A REMEDIAL ORDER DIRECTING THE AGENCY TO CEASE
 AND DESIST FROM SUCH VIOLATIONS AND TO POST THE CUSTOMARY NOTICE TO
 EMPLOYEES.
 
    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 SUBMISSION ON THE MERITS OF THE CASE.
 
                                  OPINION
 
    AS NOTED ABOVE, THE COUNCIL CONCLUDED THAT THE DECISION OF THE
 ASSISTANT SECRETARY RAISED A MAJOR POLICY ISSUE AS TO THE MEANING AND
 APPLICATION OF SECTION 9(B) OF THE ORDER IN THE CIRCUMSTANCES OF THIS
 CASE.
 
    AS FURTHER NOTED ABOVE, ON THIS DATE THE COUNCIL HAS ISSUED ITS
 DECISION IN SECRETARY OF THE NAVY, DEPARTMENT OF THE NAVY, PENTAGON,
 A/SLMR 924, FLRC 77A-146, WHICH PRESENTED, IN SIMILAR CIRCUMSTANCES, THE
 IDENTICAL MAJOR POLICY ISSUE INVOLVED IN THE INSTANT CASE.  IN SECRETARY
 OF THE NAVY, THE COUNCIL CONCLUDED THAT THE ASSISTANT SECRETARY HAD IN
 CERTAIN RESPECTS MISINTERPRETED AND MISAPPLIED SECTION 9(B) OF THE ORDER
 IN FINDING THAT THE AGENCY VIOLATED SECTION 19(A)(1) AND (6) BY FAILING
 TO PROVIDE THE UNION WITH NOTICE OF AND AN OPPORTUNITY TO COMMENT ON A
 PROPOSED CHANGE IN THE AGENCY'S CONTRACTING OUT POLICY, BUT THAT HIS
 DECISION WAS CONSISTENT WITH THE ORDER TO THE EXTENT THAT HE FOUND THE
 AGENCY IN VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER FOR
 REFUSING TO CONSULT WITH THE UNION ABOUT THE IMPACT AND IMPLEMENTATION
 OF THAT POLICY.  FOR THE REASONS FULLY EXPLICATED BY THE COUNCIL IN FLRC
 77A-146, WHICH ARE DISPOSITIVE IN THE INSTANT CASE, WE SIMILARLY SUSTAIN
 THE ASSISTANT SECRETARY'S DECISION HEREIN AS CONSISTENT WITH THE ORDER
 TO THE EXTENT HE FOUND THAT THE AGENCY VIOLATED SECTION 19(A)(1) AND (6)
 BY FAILING TO NOTIFY THE UNION OF ITS DECISION TO CONSOLIDATE CERTAIN
 SUPPORT SERVICES AND TO PROVIDE THE UNION WITH AN OPPORTUNITY TO CONSULT
 ABOUT THE IMPACT AND IMPLEMENTATION THEREOF, BUT SET ASIDE HIS DECISION
 TO THE EXTENT THAT HE FOUND THAT THE AGENCY VIOLATED SECTION 19(A)(1)
 AND (6) BY FAILING TO NOTIFY THE UNION OF THE PROPOSED CONSOLIDATION AND
 TO PROVIDE IT THE OPPORTUNITY TO COMMENT ON SUCH PROPOSED CHANGE.
 
                                CONCLUSION
 
    ACCORDINGLY, 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 THIS MATTER FOR APPROPRIATE ACTION CONSISTENT WITH OUR DECISION
 HEREIN.
 
    BY THE COUNCIL.
 
                             HAROLD W. 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 WAS DECIDED SOLELY ON THE
 BASIS OF EXECUTIVE ORDER 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 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
 REPRESENTS AND P