[ 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
REPRESENTS AND PROVIDE AN
OPPORTUNITY FOR THE ORGANIZATION TO COMMENT ON THE PROPOSED CHANGES.
THE LABOR ORGANIZATION
MAY SUGGEST CHANGES IN THE AGENCY'S PERSONNEL POLICIES AND HAVE ITS
VIEWS CAREFULLY
CONSIDERED. IT MAY CONSULT IN PERSON AT REASONABLE TIMES, ON
REQUEST, WITH APPROPRIATE
OFFICIALS ON PERSONNEL POLICY MATTERS, AND AT ALL TIMES PRESENT ITS
VIEWS THEREON IN
WRITING. 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.
/3/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975), AT 42
STATES:
THE TERM "MEET AND CONFER," AS USED IN THE ORDER, IS INTENDED TO BE
CONSTRUED AS A SYNONYM
FOR "NEGOTIATE."
/4/ AS THE COUNCIL EXPRESSLY STATED IN THE REPORT WHICH LED TO THE
ADOPTION OF E.O. 11838:
IN THE FEDERAL LABOR-MANAGEMENT RELATIONS PROGRAM, "CONSULTATION" IS
REQUIRED ONLY AS IT
PERTAINS TO THE DUTY OWED BY AGENCIES TO LABOR ORGANIZATIONS WHICH
HAVE BEEN ACCORDED NATIONAL
CONSULTATION RIGHTS UNDER SECTION 9 OF THE ORDER. (ID., AT 42).
/5/ TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL AND
NAVAL PUBLIC WORKS CENTER, NORFOLK, VIRGINIA, 1 FLRC 431 (FLRC NO.
71A-56 (JUNE 29, 1974), REPORT NO. 41).
/6/ OF COURSE, AS DISCUSSED HEREINAFTER, THE UNION HAS A RIGHT TO BE
NOTIFIED OF SUCH A DECISION, ONCE MADE, AND TO CONSULT (INCLUDING
COMMENT) AS TO THE IMPACT AND IMPLEMENTATION OF SUCH CHANGE.
/7/ SEE NOTE 4, SUPRA, 1 FLRC 431 AT 442.