[ v01 p1020 ]
01:1020(116)CA
The decision of the Authority follows:
1 FLRA No. 116
NATIONAL SCIENCE FOUNDATION
Respondent
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 3403, AFL-CIO
Complainant
Assistant Secretary
Case No. 22-08764(CA)
DECISION AND ORDER
ON DECEMBER 15, 1978, ADMINISTRATIVE LAW JUDGE SAMUEL A. CHAITOVITZ
ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT IT CEASE AND
DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS AS SET FORTH IN
THE ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
THEREAFTER, THE RESPONDENT AND THE COMPLAINANT FILED EXCEPTIONS WITH
RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
ORDER. IN ADDITION, THE OFFICE OF PERSONNEL MANAGEMENT (OPM) AND THE
DEPARTMENT OF DEFENSE (DOD) WERE PERMITTED TO FILE AMICUS CURIAE BRIEFS
IN THIS MATTER. THE COMPLAINANT SUBMITTED A RESPONSE TO THE OPM BRIEF.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, 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
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE
SUBJECT CASE, INCLUDING THE PARTIES' EXCEPTIONS AND THE AMICUS CURIAE
BRIEFS OF THE OPM AND THE DOD, THE AUTHORITY HEREBY ADOPTS THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, AS
MODIFIED HEREIN. /1/
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THE AUTHORITY FINDS
THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE EXECUTIVE
ORDER. IN THIS REGARD, THE RESPONDENT FAILED TO AFFORD THE COMPLAINANT
ADEQUATE ADVANCE NOTICE OF AN IMPENDING REORGANIZATION AND
REDUCTION-IN-FORCE, AND THEREBY FAILED TO FULFILL ITS OBLIGATION TO GIVE
THE COMPLAINANT AN OPPORTUNITY TO SEEK BARGAINING ABOUT THE IMPACT AND
IMPLEMENTATION OF ITS PLANNED ACTIONS, /2/ INCLUDING THE IMPACT AND
IMPLEMENTATION OF ANY CHANGES IN ITS REDUCTION-IN-FORCE APPEAL
PROCEDURES THAT MAY HAVE BEEN MANDATED BY CHANGES IN THE FEDERAL
PERSONNEL MANUAL. ACCORDINGLY, HAVING FOUND THAT THE RESPONDENT ENGAGED
IN CONDUCT VIOLATIVE OF THE EXECUTIVE ORDER, THE AUTHORITY SHALL ISSUE
AN APPROPRIATE REMEDIAL 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 NATIONAL SCIENCE FOUNDATION SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING A REORGANIZATION AND REDUCTION-IN-FORCE WITHOUT
AFFORDING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3403,
AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF THE AFFECTED EMPLOYEES,
ADEQUATE NOTICE AND A REASONABLE OPPORTUNITY TO MEET AND CONFER, TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES TO BE
FOLLOWED IN IMPLEMENTING THE REORGANIZATION AND REDUCTION-IN-FORCE,
INCLUDING THOSE CONNECTED WITH ANY MANDATED CHANGE IN THE
REDUCTION-IN-FORCE APPEAL PROCEDURES, AND ON THE IMPACT OF SUCH ACTIONS
ON ADVERSELY AFFECTED EMPLOYEES.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) IN THE FUTURE, GIVE THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3403, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF THE
AFFECTED EMPLOYEES, ADEQUATE NOTICE AND A REASONABLE OPPORTUNITY TO MEET
AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE
PROCEDURES TO BE FOLLOWED IN IMPLEMENTING THE REORGANIZATION AND
REDUCTION-IN-FORCE, INCLUDING THOSE CONNECTED WITH ANY MANDATED CHANGE
IN THE REDUCTION-IN-FORCE APPEAL PROCEDURES, AND ON THE IMPACT OF SUCH
ACTIONS ON ADVERSELY AFFECTED EMPLOYEES.
(B) POST AT ALL OF ITS FACILITIES 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 AGENCY'S DIRECTOR AND SHALL BE POSTED AND MAINTAINED BY HIM FOR
60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE DIRECTOR 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.
ISSUED, WASHINGTON, D.C., SEPTEMBER 24, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY /3/
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 A REORGANIZATION AND REDUCTION-IN-FORCE WITHOUT
AFFORDING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3403,
AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF THE AFFECTED EMPLOYEES,
ADEQUATE NOTICE AND A REASONABLE OPPORTUNITY TO MEET AND CONFER, TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES TO BE
FOLLOWED IN IMPLEMENTING THE REORGANIZATION AND REDUCTION-IN-FORCE,
INCLUDING THOSE CONNECTED WITH ANY MANDATED CHANGE IN THE
REDUCTION-IN-FORCE APPEAL PROCEDURES, AND ON THE IMPACT OF SUCH ACTIONS
ON ADVERSELY AFFECTED EMPLOYEES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
WE WILL, IN THE FUTURE, GIVE THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3403, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF THE
AFFECTED EMPLOYEES, ADEQUATE NOTICE AND A REASONABLE OPPORTUNITY TO MEET
AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE
PROCEDURES TO BE FOLLOWED IN IMPLEMENTING A REORGANIZATION AND
REDUCTION-IN-FORCE, INCLUDING THOSE CONNECTED WITH ANY MANDATED CHANGE
IN THE REDUCTION-IN-FORCE APPEAL PROCEDURES, AND ON THE IMPACT OF SUCH
ACTIONS 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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY WHOSE ADDRESS IS:
FEDERAL LABOR RELATIONS AUTHORITY, ROOM 416, VANGUARD BUILDING, 1111
20TH STREET, N.W., WASHINGTON, D.C., AND WHOSE TELEPHONE NUMBER IS:
(202) 254-6581.
LEWIS E. GROTKE, ESQUIRE
CHARLES HERZ, ESQUIRE
OFFICE OF GENERAL COUNSEL
NATIONAL SCIENCE FOUNDATION
WASHINGTON, D.C. 20550
FOR THE RESPONDENT
RICHMAN B. SEIDEL
NATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES
8020 NEW HAMPSHIRE AVENUE
HYATTSVILLE, MARYLAND 20283
FOR THE COMPLAINANT
BEFORE: SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO A COMPLAINT FILED ON FEBRUARY 15, 1978 UNDER EXECUTIVE
ORDER 11491, AS AMENDED, (HEREINAFTER CALLED THE ORDER) BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3403, AFL-CIO (HEREINAFTER
CALLED THE UNION OR LOCAL 3403 AFGE) AGAINST THE NATIONAL SCIENCE
FOUNDATION (HEREINAFTER CALLED NSF, THE ACTIVITY OR RESPONDENT) A NOTICE
OF HEARING ON COMPLAINT WAS ISSUED ON MARCH 29, 1978 BY THE UNITED
STATES DEPARTMENT OF LABOR ACTING REGIONAL ADMINISTRATOR FOR
LABOR-MANAGEMENT SERVICES ADMINISTRATION FOR THE PHILADELPHIA,
PENNSYLVANIA REGION.
BASICALLY THE COMPLAINANT ALLEGED THAT THE ACTIVITY VIOLATED SECTIONS
19(A)(1) AND (6) OF THE ORDER BY INSTITUTING A REDUCTION IN FORCE (RIF)
AND ISSUING RIF NOTICES WITHOUT AFFORDING THE UNION ADEQUATE TIME TO
NEGOTIATE THE PROCEDURES TO BE USED IN THE RIF AND THE ADVERSE IMPACT
THAT WOULD RESULT AND FURTHER BY ISSUING THE RIF NOTICES WHEN NO
AGREEMENT HAD BEEN REACHED WITH RESPECT TO THE ADVERSE IMPACT WHICH
WOULD RESULT AND BY REFUSING TO NEGOTIATE ABOUT THE PROCEDURES TO BE
USED IN AFFECTING THE RIF.
A HEARING WAS HELD BEFORE THE UNDERSIGNED IN WASHINGTON, D.C. BOTH
PARTIES WERE REPRESENTED AND WERE AFFORDED A FULL OPPORTUNITY TO BE
HEARD, TO ADDUCE EVIDENCE AND TO EXAMINE THE CROSS-EXAMINE WITNESSES.
BOTH PARTIES WERE AFFORDED AN OPPORTUNITY TO ARGUE ORALLY AND BOTH
PARTIES FILED BRIEFS, WHICH HAVE BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS:
FINDINGS OF FACT
1. SINCE OCTOBER 1975 AFGE LOCAL 3403 HAS BEEN THE COLLECTIVE
BARGAINING REPRESENTATIVE FOR A UNIT CONSISTING OF MOST NON-SUPERVISORY
EMPLOYEES OF THE ACTIVITY.
2. ON JULY 11, 1977 AFGE LOCAL 3403 AND NSF ENTERED INTO A
COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDED, IN ITS PREAMBLE,
"IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THIS AGREEMENT, ALL
OFFICIALS AND
EMPLOYEES OF THE NATIONAL SCIENCE FOUNDATION ARE GOVERNED BY EXISTING
OR FUTURE LAWS, ORDERS,
INSTRUCTIONS, RESTRICTIONS AND RULES AND REGULATIONS OF APPROPRIATE
AUTHORITIES; (AND) BY
PUBLISHED AGENCY POLICIES AND REGULATIONS IN EXISTENCE AT THE TIME
THE AGREEMENT WAS APPROVED,
UNLESS SPECIFICALLY MODIFIED BY THIS AGREEMENT . . . ".
3. ARTICLE II. B. OF THE COLLECTIVE BARGAINING AGREEMENT PROVIDES
THAT
"AMENDMENTS TO THIS AGREEMENT MAY BE REQUIRED BECAUSE OF CHANGES IN
APPLICABLE LAWS,
ORDERS, RESTRICTIONS, INSTRUCTIONS, OR RULES AND REGULATIONS OF
APPROPRIATE AUTHORITIES, MADE
OR ISSUED AFTER THE EFFECTIVE DATE OF THIS AGREEMENT. THEREFORE, AT
ANY TIME DURING THE LIFE
OF THIS AGREEMENT, UPON WRITTEN NOTICE BY ONE PARTY TO THE OTHER,
THIS AGREEMENT MAY BE OPENED
FOR THE NEGOTIATION OF CHANGES BEARING DIRECTLY ON, AND FALLING
WITHIN THE SCOPE OF SUCH LAWS,
ORDERS, RESTRICTIONS, RULES, REGULATIONS, OR INSTRUCTIONS.
"IN ADDITION, THIS AGREEMENT MAY BE OPENED AT ANY TIME DURING THE
LIFE THEREOF, WITH THE
PRIOR MUTUAL AGREEMENT OF BOTH PARTIES, FOR THE PURPOSE OF
NEGOTIATING AMENDMENTS
THERETO. THE MUTUAL AGREEMENT TO REOPEN THE CONTRACT SHALL BE
EVIDENCED IN WRITING, AND SHALL
STATE THE SPECIFIC AREAS OR PROVISIONS TO BE CONSIDERED FOR
AMENDMENT."
ARTICLE XVIII. B. OF THE COLLECTIVE BARGAINING AGREEMENT PROVIDES
THAT
"THIS AGREEMENT DEFINES THE COMPLETE AGREEMENTS AND UNDERSTANDINGS
BETWEEN THE PARTIES
THERETO. ALL RIGHTS AND RESPONSIBILITIES OF THE FOUNDATION NOT
SPECIFICALLY MODIFIED BY THIS
AGREEMENT REMAIN IN FULL FORCE AND EFFECT."
4. IN EARLY SUMMER 1977 THE NSF INITIATED DISCUSSIONS WITH THE UNION
ABOUT THREE PROPOSED NEW ISSUANCES THAT COULD AFFECT EMPLOYEES IN THE
BARGAINING UNIT. ONE OF THE ITEMS, WHICH IS RELEVANT TO THE MATTER
HEREIN, WAS A PROPOSED REVISED VERSION OF NSF CIRCULAR NO. 33,
CONCERNING RIF PROCEDURES. THIS CIRCULAR PROVIDED, IN PART, FOR BOTH AN
NSF APPEAL AND A CIVIL SERVICE COMMISSION APPEAL. A CIVIL SERVICE
COMMISSION REVISION OF THE FEDERAL PERSONNEL MANUAL APPARENTLY
ELIMINATED INTERNAL AGENCY APPEALS IN RIF SITUATIONS, THUS REQUIRING
SOME CHANGES IN NSF CIRCULAR NO. 33.
5. SOME DISCUSSION CONCERNING SOME OF THESE ITEMS TOOK PLACE BETWEEN
THE PARTIES BUT THERE WAS NO DISCUSSION OF THE PROPOSED REVISION OF
CIRCULAR NO. 33. ON SEPTEMBER 6 OR 7, 1977 MANAGEMENT WITHDREW ALL
THREE PROPOSED CHANGES ON THE GROUND THAT THEY HAD INADVERTEDLY BEEN
PRESENTED TO AFGE LOCAL 3403 BEFORE BEING APPROVED BY TOP MANAGEMENT.
THE UNION DID NOT OBJECT.
6. IN LATE SEPTEMBER 1977, AFTER ABOUT A YEAR OF STUDY, NSF DIRECTOR
RICHARD ATKINSON APPROVED A REORGANIZATION WITHIN NSF'S DIRECTORATE FOR
SCIENTIFIC, TECHNOLOGICAL AND INTERNATIONAL AFFAIRS (STIA). THE STIA
DIRECTORATE HAD BEEN FORMED ABOUT TWO YEARS EARLIER BY A COMBINATION OF
EXISTING SEPARATE UNITS. THE NSF DIRECTOR'S DECISION ESTABLISHED WHICH
STIA FUNCTIONS WOULD REQUIRE ADDITIONAL STAFF AND WHICH WOULD BE REDUCED
OR ELIMINATED.
7. ON OR ABOUT THE AFTERNOON OF OCTOBER 6, 1977 NSF'S LABOR
RELATIONS OFFICER, JOHN MOSTAKIS TELEPHONED UNION PRESIDENT JOSEPH
GANNON AND INFORMED HIM OF THE PLANNED REORGANIZATION OF STIA AND
SUGGESTED THAT THEY MEET THE NEXT DAY. UNION PRESIDENT GANNON AGREED TO
MEET THE FOLLOWING DAY, FRIDAY, OCTOBER 7, 1977.
8. AT THE OCTOBER 7, 1977 MEETINGS BOTH NSF AND AFGE LOCAL 3403 WERE
REPRESENTED. STIA DEPUTY ASSISTANT DIRECTOR LEONARD LEDERMAN EXPLAINED
THE PLANNED REORGANIZATION AND ITS BACKGROUND TO THE UNION
REPRESENTATIVES AND ADVISED THE UNION THAT NSF PLANNED TO ISSUE THE
OFFICIAL ANNOUNCEMENT OF THE REALIGNMENT ON OCTOBER 12, 1977 AND TO
DELIVER THE RIF NOTICES TO AFFECTED EMPLOYEES ON OCTOBER 14,1977. NSF
ALSO PROVIDED THE UNION WITH THE NAMES OF THE EMPLOYEES IN THE
BARGAINING UNIT WHO MIGHT BE ADVERSELY AFFECTED BY THE PROPOSED
REORGANIZATION AND WITH A DRAFT OF THE ANNOUNCEMENT OF THE REALIGNMENT
FOR THE SIGNATURE OF THE NSF DIRECTOR. THE UNION REQUESTED THE
OPPORTUNITY TO NEGOTIATE AS SOON AS POSSIBLE OVER THE PROCEDURES TO BE
UTILIZED IN EFFECTING THE RIF AND OVER ITS ADVERSE IMPACT ON AFFECTED
EMPLOYEES. ALSO AT THE MEETING NSF STATED THAT IT WOULD LIKE TO
PROMPTLY ADVISE POTENTIALLY AFFECTED EMPLOYEES OF THE REORGANIZATION AND
ITS POSSIBLE IMPACT ON THEM BEFORE THEY HEARD ABOUT IT BY RUMORS. NSF
INVITED THE UNION TO HAVE REPRESENTATIVES AT SUCH MEETINGS WHEN THE
SUPERVISORS MET WITH THESE EMPLOYEES. THE UNION RAISED NO OBJECTIONS TO
THIS PROCEDURE BUT DECLINED TO BE PRESENT AT THE MEETINGS.
9. ON OCTOBER 11 NSF LABOR RELATIONS OFFICER MOSTAKIS ADVISED UNION
PRESIDENT GANNON TELEPHONICALLY OF THE SCHEDULE OF THE MEETINGS BETWEEN
SUPERVISORS AND POTENTIALLY EFFECTED EMPLOYEES AND INVITED THE UNION TO
HAVE A REPRESENTATIVE PRESENT. THE UNION AGAIN DECLINED. THE SCHEDULED
MEETINGS TOOK PLACE ON OCTOBER 11 AND 12, WERE INFORMAL AND DID NOT
CONSTITUTE FORMAL RIF NOTIFICATIONS.
10. ON OCTOBER 11 AND 12 UNION AND NSF REPRESENTATIVES MET TO
DISCUSS THE PROCEDURES THAT WOULD BE FOLLOWED IN THE REORGANIZATION AND
THE ARRANGEMENTS FOR POTENTIALLY AFFECTED EMPLOYEES. THESE MEETINGS
WERE TAKEN UP WITH GENERAL DISCUSSIONS CONCERNING THE REORGANIZATION
INCLUDING THE METHOD MANAGEMENT WAS USING FOR DEVELOPING RETENTION
REGISTERS; HOW THE NOTICES WERE TO BE PREPARED, ETC.
11. THE NEXT NEGOTIATION MEETING TOOK PLACE DURING THE MORNING OR
AFTERNOON OCTOBER 14, 1977. DURING THE MORNING THE UNION SUBMITTED A
PROPOSED "MEMORANDUM OF UNDERSTANDING" CONTAINING 20 ITEMS. DURING BOTH
THE MORNING AND AFTERNOON MEETINGS THE PARTIES DISCUSSED THE 20 ITEMS
WITH THE UNION PRIMARILY ANSWERING QUESTIONS AND NSF GIVING INITIAL
REACTIONS. NSF REPRESENTATIVES ADVISED THE UNION THAT RIF NOTICES TO
AFFECTED EMPLOYEES, ORIGINALLY SCHEDULED TO BE ISSUED OCTOBER 14, WOULD
BE ISSUED OCTOBER 17, 1978. NSF GAVE THE UNION REPRESENTATIVES A COPY
OF ONE OF THE PROPOSED NOTICES, WITH THE NAME OF THE EMPLOYEE DELETED
BECAUSE OF PRIVACY ACT CONSIDERATION. THIS RIF NOTICE ADVISED THE
EMPLOYEE THAT HE MAY REQUEST "AGENCY REVIEW" AND ALSO ATTACHED
INSTRUCTIONS FOR FILING AN APPEAL WITH THE CIVIL SERVICE COMMISSION.
THE UNION REPRESENTATIVES ASKED THAT THE ISSUANCE OF THE RIF NOTICES BE
DELAYED UNTIL THE UNION PROPOSALS HAD BEEN DISPOSED OF.
12. RIF NOTICES WERE ISSUED ON OR ABOUT OCTOBER 17. THE NOTICES
WERE TO BECOME EFFECTIVE 30 DAYS AFTER THEY WERE ISSUED UNLESS
SUBSEQUENTLY EXTENDED. MOST ALL OF THEM WERE SUBSEQUENTLY EXTENDED SO
THAT THE FIRST EMPLOYEE WAS NOT TERMINATED UNTIL JANUARY 18, 1978.
EIGHT EMPLOYEES WERE NEGATIVELY AFFECTED, FOUR BY PROPOSED SEPARATION
AND FOUR BY PROPOSED DOWNGRADING. OF THIS NUMBER, THREE SECURED OTHER
JOBS OUTSIDE NSF, TWO EMPLOYEES WERE LAID OFF AND THREE DOWNGRADED. OF
THOSE LAID OFF BOTH WERE EXCEPTED SERVICE EMPLOYEES AS WAS ONE OF THE
DOWNGRADED EMPLOYEES.
13. NSF AND UNION REPRESENTATIVES MET NEXT ON OCTOBER 21, 1978 AND
THEN AGAIN ON OCTOBER 27. AT THESE TWO MEETINGS NSF REPRESENTATIVES
ASKED THE UNION REPRESENTATIVES TO CLARIFY SOME OF THE PROPOSALS
INCLUDED IN THE OCTOBER 14 PROPOSED "MEMORANDUM OF UNDERSTANDING" AND
RESPONDED TO EACH OF THE PROPOSALS.
14. THE 20 PROPOSALS, AS SET FORTH IN THE OCTOBER 14 "MEMORANDUM OF
UNDERSTANDING," AND NSF'S RESPONSES WERE AS FOLLOWS:
"(1) ALL FOUNDATION EMPLOYEES WILL RECEIVE A COPY OF THE NEGOTIATED
LABOR-MANAGEMENT
CONTRACT NOW IN EFFECT AT THE AGENCY, AND BEFORE ANY PERSONNEL
ACTIONS DUE TO THE
REORGANIZATION TAKE PLACE."
MANAGEMENT CONTENDED THAT THIS PROPOSAL HAD NOTHING TO DO WITH THE
STIA REALIGNMENT IN ANY
DIRECT WAY AND WAS COVERED BY THE CONTRACT ITSELF, WHICH REQUIRES
(ARTICLE XVIII. A.) THAT A
COPY WILL BE MADE AVAILABLE BY THE FOUNDATION TO ALL EMPLOYEES
REPRESENTED BY LOCAL 3403. THE
RECORD REVEALS THAT THE PARTIES HAD DISAGREED OVER THE MEANING OF
"MADE AVAILABLE" AND THAT
MANAGEMENT HAD NOT BEEN WILLING TO DISTRIBUTE COPIES, AS OPPOSED TO
HAVING THEM AVAILABLE AT A
DESIGNATED OFFICE IN THE FOUNDATION, UNTIL ANOTHER MATTER OUTSTANDING
FOR NEGOTIATION HAD BEEN
RESOLVED.
"(2) THE REORGANIZATION WILL NOT VIOLATE PRESIDENTIAL POLICY THAT
REORGANIZATION WILL NOT
RESULT IN LOSS OF EMPLOYMENT."
MANAGEMENT WAS WILLING TO AGREE NOT TO VIOLATE THE PRESIDENTIAL
POLICY. THE PARTIES
DEBATED THE MEANING OF THE PRESIDENTIAL POLICY AND ITS APPLICATION,
BUT THE UNION DID NOT
SPECIFY PRECISELY WHAT IT WANTED.
"(3) BEFORE ANY REDUCTIONS-IN-FORCE, DOWNGRADINGS, OR REASSIGNMENTS
RESULTING FROM THE
REORGANIZATION OCCUR, THE NSF CIRCULAR #33, REV. #1, COVERING
REDUCTION-IN-FORCE WILL BE
NEGOTIATED BY LOCAL #3403 AND THE AGENCY. THIS WILL INCLUDE
ACCEPTANCE OF THE NEGOTIATED
CIRCULAR BY THE U.S. CIVIL SERVICE COMMISSION AS CONSISTENT WITH THE
FEDERAL PERSONNEL MANUAL
(FPM)."
MANAGEMENT SAID IT COULD NOT SEE ANY OBLIGATION TO RENEGOTIATE THE
EXISTING CIRCULAR IN THE
CONTEXT OF AND AS A PREREQUISITE TO THE STIA REALIGNMENT. IT ASKED
FURTHER CLARIFICATION ON
WHAT SPECIFIC ISSUES IN THE CIRCULAR THE UNION WANTED TO ADDRESS, BUT
RECEIVED NONE. THE
UNION DID DISPLAY CONCERN OVER APPEAL RIGHTS, AS TO WHICH A CHANGE IN
CIVIL SERVICE COMMISSION
POLICY HAD TO SOME EXTENT SUPERSEDED THE CIRCULAR. THE RECORD SHOWS
THAT THERE WAS
CONSIDERABLE DISCUSSION OF APPEAL RIGHTS, THAT MANAGEMENT EXPLAINED
CAREFULLY THE EFFECT OF
THE NEW CIVIL SERVICE COMMISSION POLICY, THAT EMPLOYEES SUBJECT TO
REDUCTION-IN-FORCE ACTIONS
WERE ALLOWED BOTH AN INTERNAL AGENCY "REVIEW" AND AN APPEAL TO THE
CIVIL SERVICE COMMISSION,
THAT BOTH THE INTERNAL "REVIEW" AND THE EXTERNAL APPEAL WERE
AVAILABLE TO EXCEPTED SERVICE
EMPLOYEES AS WELL AS COMPETITIVE SERVICE EMPLOYEES. APPEALS WERE
TAKEN TO THE CIVIL SERVICE
COMMISSION IN CONNECTION WITH THE STIA REALIGNMENT AND THE ASSOCIATED
RIF.
"(4) PRECEDING ANY ADVERSE PERSONNEL ACTIONS THE NATIONAL SCIENCE
FOUNDATION WILL REQUEST A
MORATORIUM ON RIFS FROM OMB AND THE AGENCY WILL HIRE NO MORE
EMPLOYEES UNTIL ATTRITION REDUCED
NSFS EMPLOYMENT TO THE LEVEL REQUIRED BY OMB. LOCAL #3403 WILL
TIMELY RECEIVE A COPY OF ALL
CORRESPONDENCE BETWEEN NSF AND OMB IN THIS MATTER."
THIS POINT APPARENTLY AROSE FROM THE UNION NEGOTIATORS' CONCEPTION
THAT THE OFFICE OF
MANAGEMENT AND BUDGET WAS REQUIRING A CUT OF 40 POSITIONS FROM NSF'S
AUTHORIZED STRENGTH, AND
THAT THIS CUT WAS SOMEHOW RELATED TO THE STIA REALIGNMENT.
MANAGEMENT NEGOTIATORS ASSURED
THEM THAT NO SUCH CUT WAS IN ANY WAY RELATED TO THE STIA REALIGNMENT.
THEY TOOK THE POSITION
THAT THE UNION'S PROPOSAL WAS THEREFORE IRRELEVANT TO THE REALIGNMENT
NEGOTIATION AND IN ANY
EVENT ENROACHED UPON RESERVED MANAGEMENT FUNCTIONS.
"(5) ANY EXCEPTED NSF EMPLOYEE HIRED WITHOUT REGARD TO USUAL FEDERAL
SALARY AND OTHER
CONSIDERATIONS, AND WHO IS RIFED, WILL RECEIVE SEVERANCE PAY
EQUIVALENT TO THAT WHICH COULD BE
PROVIDED A COMPETITIVE SERVICE EMPLOYEE WITH LIKE YEARS OF FEDERAL
SERVICE."
MANAGEMENT SAID THAT THIS WAS ALREADY AGENCY POLICY UNDER CIRCULAR 43
AND THAT IT WOULD
"HAVE NO PROBLEM IN REITERATING THIS IN ANY AGREEMENT."
"(6) LOCAL #3403 WILL BE GIVEN TIMELY ACCESS TO ANY SF 50 OR 52 CUT
AS A RESULT OF THE
REORGANIZATION. THESE FORMS WILL NOT BE SANITIZED FOR UNION REVIEW."
MANAGEMENT AGREED THAT THIS REQUEST COULD BE ACCOMMODATED, SUBJECT
ONLY TO REQUIREMENTS OF
THE PRIVACY ACT.
"(7) PRECEDING REORGANIZATION PERSONNEL ACTIONS, THE NSF WILL REQUEST
FROM THE CSC A
MORATORIUM ON DOWNGRADING FLOWING FROM THE REORGANIZATION. NSF WILL
TIMELY PROVIDE LOCAL
#3403 A COPY OF ALL CORRESPONDENCE BETWEEN NSF AND THE CSC IN THIS
MATTER."
MANAGEMENT TOOK THE POSITION THAT IT IS OBLIGATED TO CONDUCT ITS
BUSINESS IN THE BEST
INTEREST OF THE GOVERNMENT, AND THAT THIS PROPOSAL WAS IN DEROGATION
OF THAT RESPONSIBILITY--
IN EFFECT THAT IT ENROACHED UPON RESERVED MANAGEMENT FUNCTIONS.
"(8) LOCAL #3403 WILL BE INVOLVED FULLY IN THE DEVELOPMENT OF THE
RETENTION REGISTER FOR GS
AND EXCEPTED EMPLOYEES USED IN THE REORGANIZATION."
MANAGEMENT REPLIED THAT THE CRITERIA FOR FORMATION OF RETENTION
REGISTERS WERE ESTABLISHED
BY THE FEDERAL PERSONNEL MANUAL, BUT AGREED THAT THE UNION WOULD HAVE
FULL OPPORTUNITY TO
REVIEW ALL OF THE MATERIAL USED IN THE DEVELOPMENT OF RETENTION
REGISTERS. THE RECORD SHOWS
THAT UNION AND MANAGEMENT NEGOTIATORS AND OFFICIALS SPENT
CONSIDERABLE TIME DISCUSSING NSF'S
"PRELIMINARY RETENTION REGISTERS," AS WELL AS THE FINAL RETENTION
REGISTERS USED IN THE
REDUCTION IN FORCE.
"(9) THE REORGANIZATION WILL BE BASED ON ALL APPLICABLE STATUTES,
RULES, REGULATIONS,
POLICIES, PROCEDURES AND THE NEGOTIATED AGREEMENT NOW IN EFFECT
BETWEEN BOTH PARTIES."
MANAGEMENT INDICATED THAT THIS PROPOSAL EXPRESSED WHAT WAS ALREADY
AGENCY POLICY, BUT THAT
MANAGEMENT WAS WILLING TO INCLUDE IT IN ANY AGREEMENT.
"(10) PERSONNEL ACTIONS WILL BE BASED ON THE FEDERAL PERSONNEL MANUAL
AS FULLY UPDATED."
MANAGEMENT INDICATED THAT THIS PROPOSAL EXPRESSED WHAT WAS ALREADY
AGENCY POLICY, BUT THAT
MANAGEMENT WAS WILLING TO INCLUDE IT IN ANY AGREEMENT.
"(11) THE AGENCY AGREES TO TAKE ALL POSSIBLE MEASURES TO PRECLUDE
ADVERSE IMPACT UPON
EMPLOYEES AFFECTED BY THE STIA REORGANIZATION."
MANAGEMENT INDICATED THAT THIS PROPOSAL EXPRESSED WHAT IT WAS ALREADY
DOING AND WAS ALREADY
AGENCY POLICY, BUT THAT MANAGEMENT WAS WILLING TO INCLUDE IT IN ANY
AGREEMENT WITH ONLY A
POSSIBLE CHANGE IN WORDING TO AVOID AN EXTREME INTERPRETATION OF THE
PHRASE "ALL POSSIBLE
MEASURES."
"(12) ANY EMPLOYEE WHOSE FUNCTIONS ARE TRANSFERRED OR RETAINS THE
GREATER PART OF THOSE
FUNCTIONS WILL NOT BE DOWNGRADED OR RIFED."
MANAGEMENT TOOK THE VIEW THAT THIS PROPOSAL ENCROACHED UPON RESERVED
MANAGEMENT FUNCTIONS.
"(13) THE REORGANIZATION WILL BE BASED ON SOUND MANAGEMENT
PRINCIPLES. FOR EXAMPLE,
POSITIONS THAT ARE PRIMARILY RESEARCH-ORIENTED WILL NOT BE DEVELOPED
UNTIL PROPER METHODS OF
EVALUATING EMPLOYEE RESEARCH ARE NEGOTIATED WITH LOCAL #3403.
PROGRAMMATIC AND RESEARCH
ASPECTS OF POSITIONS WILL BE CLEARLY DELINEATED."
MANAGEMENT INDICATED THAT IT DID NOT UNDERSTAND WHAT WAS INTENDED BY
THIS PROPOSAL. IT
POINTED OUT THAT THE METHOD OF EVALUATING PERFORMANCE IS SPELLED OUT
IN THE PERFORMANCE RATING
ACT, WHICH WAS IMPLEMENTED BY AN EXISTING NSF CIRCULAR. THE UNION
ASKED SOME QUESTIONS ABOUT
A STATUTORY BAR ON CONDUCT OF RESEARCH BY NSF EMPLOYEES. MANAGEMENT
EXPLAINED THAT THIS BAR
DID NOT APPLY TO ANY WORK BEING CONSIDERED IN THE PROPOSAL FOR
REALIGNMENT OF THE STIA
DIRECTORATES. WHATEVER THE UNION HAD IN MIND, IT PRESENTED NO
SPECIFIC PROPOSAL FOR "METHODS
OF EVALUATING EMPLOYEES RESEARCH" OR FOR DELINEATION OF "PROGRAMMATIC
AND RESEARCH ASPECTS OF
POSITIONS."
"(14) THE FOUNDATION AGREES TO HEREAFTER RETAIN THE TOTAL NUMBER OF
ROTATORS AND OF IGPAS
AT THE LEVEL OF AUGUST 5, 1977."
MANAGEMENT EXPLAINED THAT NO "ROTATORS" WERE INVOLVED IN THE STIA
REALIGNMENT AND THAT
"IGPAS" ARE NOT SUBSTITUTES FOR REGULAR PERSONNEL BECAUSE THEIR
RESPONSIBILITIES AND AUTHORITY
ARE LIMITED BY THE INTERGOVERNMENTAL PERSONNEL ACT. IT THEREFORE
TOOK THE VIEW THAT THIS
PROPOSAL WAS IRRELEVANT TO THE STIA REALIGNMENT.
"(15) THE SUM OF THE WORKLOAD UNDER THE STIA REORGANIZATION IN THE
AFFECTED UNITS WILL BE
LESS THAN BEFORE THE REORGANIZATION."
MANAGEMENT ARGUES THAT IT COULD NOT PREDICT WORKLOAD, SINCE THE
WORKLOAD IS GENERATED
OUTSIDE THE AGENCY, AND POINTED OUT THAT THE AGENCY IMPOSES NO WORK
QUOTAS, REQUIRING ONLY
THAT THERE BE EIGHT HOURS OF WORK.
"(16) THERE WILL BE NO DISCRIMINATION BASED ON RACE, RELIGION, ETHNIC
GROUP, SEX, AGE,
GRADE LEVEL, FEDERAL EMPLOYEE STATUS, OR SUPERVISORY OR MANAGEMENT
STATUS IN THE SELECTION OF
PERSONNEL REASSIGNED, REDUCTION-IN-FORCE, OR REDUCTION-IN-GRADE."
MANAGEMENT INDICATED THAT NONDISCRIMINATION ON THE BASIS OF RACE,
RELIGION, ETHNIC GROUP,
SEX, OR AGE WAS ALREADY AGENCY POLICY AND MANAGEMENT WAS WILLING TO
CONFIRM THAT POLICY IN ANY
AGREEMENT. IT ASKED WHAT WAS MEANT BY THE REFERENCE TO "FEDERAL
EMPLOYEE STATUS, OR
SUPERVISORY OR MANAGEMENT STATUS." THE UNION NEVER EXPLAINED SO THAT
MANAGEMENT COULD
UNDERSTAND WHAT WAS WANTED HERE. IN GENERAL, HOWEVER, MANAGEMENT
INDICATED A WILLINGNESS TO
DISCUSS AND REACH AGREEMENT ON THIS PROPOSAL.
"(17) NOTHING IN THE LABOR-MANAGEMENT CONTRACT NOW IN EFFECT AT THE
NSF WILL PRECLUDE FINAL
AND TIMELY APPEAL OF ADVERSE ACTIONS UNDER THE STIA REORGANIZATION."
MANAGEMENT INDICATED THAT THIS PROPOSAL CERTAINLY WAS APPROPRIATE FOR
DISCUSSION AND
EMPHASIZED THAT THE PROVISIONS OF THE CONTRACT WOULD BE OBSERVED,
UNLESS THE FEDERAL PERSONNEL
MANUAL OR OTHER REGULATIONS WERE OVERRIDING.
"(18) EMPLOYEES WHOSE APPEALS OF ADVERSE ACTIONS ARE PENDING WILL NOT
BE REDUCED-IN-FORCE
OR BE PUT ON LEAVE WITHOUT PAY."
MANAGEMENT TOOK THE POSITION THAT THIS PROPOSAL WOULD REQUIRE AN
INDEFINITE DELAY IN THE
AGENCY'S EXERCISE OF RESERVED MANAGEMENT FUNCTIONS AND SEEMED TO
CONFLICT WITH MANAGEMENT'S
RIGHT TO EXERCISE THOSE FUNCTIONS. IT ALSO SAID, HOWEVER, THAT IF AN
EMPLOYEE'S POSITION WERE
SUSTAINED ON APPEAL, APPROPRIATE ACTION SUCH AS REINSTATEMENT WOULD
BE TAKEN.
"(19) SECURITY CLEARANCE OR LACK OF IT WILL NOT BE CONSIDERED IN
EMPLOYEE RANKING ON
RETENTION ROSTERS OF EITHER THE COMPETITIVE OR EXCEPTED SERVICE
EMPLOYEES."
MANAGEMENT EXPLAINED THAT UNDER POLICY PRESCRIBED BY THE CIVIL
SERVICE COMMISSION SECURITY
CLEARANCE IS NEVER CONSIDERED IN RANKING EMPLOYEES ON RETENTION
REGISTERS.
"(20) EVERY RIFED EMPLOYEE WILL BE GIVEN THE FULL 90 DAYS (CALENDAR)
OF EMPLOYMENT AFTER
HAVING RECEIVED OFFICIAL WRITTEN NOTICE OF RIF."
MANAGEMENT AGREED THAT THIS PROPOSAL COULD BE DISCUSSED AND AGREED
TO, SUBJECT ONLY TO THE
CONDITION THAT THE EMPLOYEE CONCERNED REQUEST THE EXTENSION TO THE
FULL NINETY DAYS. LIBERAL
EXTENSION UP TO NINETY DAYS WAS ALREADY THE EXPRESSED POLICY OF THE
AGENCY FOR EMPLOYEES
AFFECTED BY THE STIA REDUCTION IN FORCE.
15. THE PARTIES MET AGAIN ON OCTOBER 31, 1977 AND THE UNION PROPOSED
A 14 ITEM "MEMORANDUM OF UNDERSTANDING" AS A SUBSTITUTE FOR ITS PREVIOUS
20 POINT PROPOSAL. THE UNION POSITION WAS THAT IF NSF ACCEPTED ALL OF
THE 14 POINTS, THE PROPOSAL WOULD BE ACCEPTED AND THE PRIOR OCTOBER 14
20 POINT PROPOSAL, WOULD BE WITHDRAWN; IF NSF REFUSED TO AGREE TO ALL
14 POINTS, THEN THE 20 POINT OCTOBER 14 PROPOSAL WOULD BE BACK THE
UNION'S PROPOSAL. NSF WOULD NOT AGREE TO ALL OF THE 14 POINTS AND
THEREFORE THE OCTOBER 14 PROPOSAL "MEMORANDUM OF UNDERSTANDING" WAS THE
FRAMEWORK FOR FURTHER BARGAINING.
16. NSF AND AFGE 3403 REPRESENTATIVES MET ON NOVEMBER 4, 1977. THE
UNION CONTENDED THAT THE ACTIVITY SHOULD NOT GO AHEAD WITH THE STIA
REORGANIZATION WITHOUT FIRST REACHING AGREEMENT WITH THE UNION. NSF
DISAGREED AND AT THE END OF THE MEETING THE UNION PRESENTED NSF WITH THE
UNFAIR LABOR PRACTICE CHARGE IN THE SUBJECT CASE.
17. DURING THE NEGOTIATION MEETINGS, TO SOME LIMITED EXTENT, NSF
INDICATED TO THE UNION THAT NSF WOULD CONSIDER UNION ARGUMENTS ON
NEGOTIABILITY AND ALSO THAT NSF MIGHT CONSIDER SOME OF THE UNION'S
PROPOSALS EVEN WITH RESPECT TO CERTAIN NON-NEGOTIABLE ITEMS.
18. AT VARIOUS OF THE NEGOTIATION MEETINGS NSF REPRESENTATIVES,
ASKED THE UNION REPRESENTATIVES IF IT HAD ANY SPECIFIC PROPOSALS ON
ARRANGEMENTS FOR PARTICULAR EMPLOYEES ADVERSELY AFFECTED. THE UNION
REPRESENTATIVES INDICATED THAT THEY FELT THE "MEMORANDUM OF
UNDERSTANDING" REPRESENTED THE BEST WAY TO HELP AFFECTED EMPLOYEES.
19. AFTER PRESENTATION OF THE UNFAIR LABOR PRACTICE CHARGE ON
NOVEMBER 4, 1977, THE NEGOTIATORS MET AGAIN ON NOVEMBER 7, 15, AND 18
AND ON SUBSEQUENT DATES IN AN EFFORT TO RESOLVE THE CHARGE AND TO REACH
A MEETING OF THE MINDS ON THE STIA REALIGNMENT AND RIFS. ON NOVEMBER 15
MANAGEMENT PRESENTED A PROPOSAL FOR RESOLUTION OF THE UNFAIR LABOR
PRACTICE CHARGE, INCLUDING AMONG OTHER THINGS A FURTHER EXTENSION OF THE
EFFECTIVE DATE OF THE RIF NOTICES. THE UNION PRESENTED ANOTHER PROPOSED
"MEMORANDUM OF UNDERSTANDING" OF 5 POINTS RELATED TO THE UNFAIR LABOR
PRACTICE COMPLAINT. ON NOVEMBER 18 IT PRESENTED ANOTHER PROPOSED
"MEMORANDUM OF UNDERSTANDING" OF 28 POINTS ADDRESSED TO THE "THE STIA
REALIGNMENT/REORGANIZATION" AS A WHOLE. AT THE SAME NOVEMBER 18 MEETING
THE UNION FORMALLY REQUESTED CERTAIN INFORMATION, WHICH MANAGEMENT
SUBSEQUENTLY SUPPLIED IN WRITING. ON DECEMBER 22 THE UNION BROUGHT IN
THE FEDERAL MEDIATION AND CONCILIATION SERVICE. NO AGREEMENT WAS
REACHED.
20. ON DECEMBER 2, 1977 NSF DR. ATKINSON RESPONDED TO THE UNFAIR
LABOR PRACTICE CHARGE INDICATING THAT IN HIS OPINION NSF HAD NOT
COMMITTED AN UNFAIR LABOR PRACTICE. IN THIS LETTER, AS REITERATED BY
NSF IN ITS BRIEF, DIRECTOR ATKINSON ADDRESSED THESE ISSUES RAISED BY THE
UNION AS FOLLOWS:
(1) THAT NO OPPORTUNITY WAS GIVEN THE UNION TO NEGOTIATE THE
PROCEDURES TO BE USED FOR
RIFS. DR. ATKINSON INDICATED THAT TO THE EXTEND RIF PROCEDURES ARE
REQUIRED BY LAW; BY THE
FEDERAL PERSONNEL MANUAL; BY NSF CIRCULAR NO. 33, WHICH WAS IN
EXISTENCE AT THE TIME THE
COLLECTIVE BARGAINING AGREEMENT WAS APPROVED; OR BY SUBSEQUENT
CHANGES MANDATED BY THE FEDERAL
PERSONNEL MANUAL, MANAGEMENT NEGOTIATORS HAD BEEN AND WOULD CONTINUE
TO BE UNWILLING-- IN HIS
VIEW PROPERLY UNWILLING-- TO NEGOTIATE THEM IN CONNECTION WITH THE
STIA REALIGNMENT. BUT TO
THE EXTENT THAT RIF PROCEDURES REMAIN OPEN TO NEGOTIATION BECAUSE
THEY ARE NOT COVERED BY
THOSE AUTHORITIES, MANAGEMENT NEGOTIATORS HAD BEEN AND WOULD CONTINUE
TO BE "READY AND WILLING
TO NEGOTIATE."
(2) THAT MANAGEMENT NEGOTIATORS HAD BEEN UNWILLING TO NEGOTIATE A
NUMBER OF ITEMS ON THE
UNION'S NEGOTIATING LIST. DR. ATKINSON INDICATED THAT THE MANAGEMENT
NEGOTIATORS HAD NOT
FINALLY RULED OUT NEGOTIATING ON ITEMS THAT HAD SEEMED TO THEM
NONNEGOTIABLE IN THE CONTEXT OF
THE STIA REALIGNMENT, BUT HAD INVITED CONTRASTING VIEWS AND ARGUMENTS
ON NEGOTIABILITY FROM
THE UNION AND WOULD REMAIN WILLING TO CONSIDER THEM. BUT HE SAID
THAT THE MANAGEMENT
NEGOTIATORS WOULD BE "GUIDED BY CERTAIN PRINCIPLES." SPECIFICALLY, HE
REITERATED THAT CHANGES
IN THE PROVISIONS OF THE FEDERAL PERSONNEL MANUAL, NSF CIRCULAR NO.
33, AND CERTAIN OTHER
AUTHORITIES WOULD NOT BE NEGOTIABLE IN THE CONTEXT OF THE STIA
REALIGNMENT. ALSO
NONNEGOTIABLE WOULD BE PROPOSALS THAT CALLED FOR ENCROACHMENT UPON
RESPONSIBILITIES RESERVED
TO MANAGEMENT BY SECTIONS 11(B) AND 12(B) OF THE EXECUTIVE ORDER.
(3) THAT RIF NOTICES HAD BEEN ISSUED BEFORE MANAGEMENT REACHED
AGREEMENT WITH THE
UNION. DR. ATKINSON INDICATED THAT MANAGEMENT WOULD HAVE PREFERRED
TO REACH AGREEMENT WITH
THE LOCAL BEFORE PROCEEDING WITH RIF NOTICES AND THE STIA REALIGNMENT
OF FUNCTIONS, BUT HAD
CONCLUDED THAT EARLY AGREEMENT WAS UNLIKELY "BECAUSE OF THE SWEEPING
SCOPE OF THE ITEMS THE
LOCAL'S NEGOTIATORS PRESENTED AND THE DISINCLINATION OF THE LOCAL'S
NEGOTIATORS TO FOCUS ON
AND NEGOTIATE SPECIFIC 'APPROPRIATE ARRANGEMENTS FOR EMPLOYEES
ADVERSELY AFFECTED'." UNDER
THESE CIRCUMSTANCES HE CONCLUDED THAT "ISSUANCE OF RIF NOTICES TO THE
EIGHT BARGAINING-UNIT
EMPLOYEES AFFECTED BEFORE AGREEMENT COULD BE REACHED WITH THE LOCAL
DID NOT CONSTITUTE AN
UNFAIR LABOR PRACTICE."
21. ON JANUARY 17, AFGE LOCAL 3403 FILED THE UNFAIR LABOR PRACTICE
COMPLAINT IN THE SUBJECT CASE.
CONCLUSIONS OF LAW
IT IS WELL SETTLED THAT SECTION 11(A) OF THE ORDER OBLIGATED THE
ACTIVITY TO PROVIDE AFGE LOCAL 3403 AN OPPORTUNITY TO BARGAIN ABOUT THE
PROCEDURES TO EFFECT IMPLEMENTATION AND THE IMPACT OF THE RIF. CF.
COMMUNITY SERVICES ADMINISTRATION, A/SLMR NO. 913; DEPARTMENT OF ARMY
ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY, A/SLMR NO. 679. SUCH
NOTICE MUST BE PROMPT AND SUFFICIENTLY IN ADVANCE OF THE CONTEMPLATED
ACTION SO AS TO PERMIT REASONABLE BARGAINING ABOUT THE IMPLEMENTATION
AND IMPACT OF THE RIF. CF. GREAT LAKES NAVAL HOSPITAL, A/SLMR NO. 289.
FURTHER ABSENT ANY EMERGENCY OR OTHER COMPELLING CONSIDERATION IT IS
CLEAR THAT THE PARTIES MUST FULLY AND REASONABLY EXHAUST THEIR
BARGAINING AND NEGOTIATING, TO IMPASSE IF NO AGREEMENT IS REACHED,
BEFORE THE ACTIVITY CAN INSTITUTE THE RIF AND ISSUE THE NOTICES. CF.
COMMUNITY SERVICE ADMINISTRATION, A/SLMR NO. 913.
IN THE SUBJECT CASE THE ACTIVITY NOTIFIED THE UNION OF THE IMPENDING
REORGANIZATION ALMOST TWO WEEKS AFTER NSF DIRECTOR ATKINSON APPROVED THE
REORGANIZATION AND ONLY ONE WEEK BEFORE NSF INTENDED TO GIVE OUT THE RIF
NOTICES AND ONLY TEN DAYS BEFORE THE RIF NOTICES WERE ACTUALLY
DISTRIBUTED. THE UNION, UPON NOTIFICATION, DID PROMPTLY REQUEST TO MEET
AND BARGAIN ABOUT THE IMPLEMENTATION AND IMPACT OF THE REORGANIZATION
AND DID MEET PROMPTLY; IN FACT THE PARTIES MET ON THE VERY NEXT DAY
AFTER THE UNION WAS INFORMED. FURTHER THE PARTIES MET AGAIN ON THE VERY
NEXT WORKING DAY SO THAT THE ACTIVITY COULD CONTINUE TO EXPLAIN THE
REORGANIZATION AND ANSWER THE UNION'S QUESTIONS. ON OCTOBER 14, ONLY
ONE WEEK AFTER BEING NOTIFIED THE REORGANIZATION THE UNION CAME UP WITH
A SERIES OF 20 NEGOTIATING ITEMS WHICH, IT CONTENDED, DEALT THE
IMPLEMENTATION AND IMPACT OF THE REORGANIZATION AND ATTEMPTED TO BARGAIN
ABOUT THESE ITEMS. IT IS CLEAR THAT MOST, IF NOT ALL OF THESE PROPOSALS
DID DEAL WITH THE IMPACT AND IMPLEMENTATION OF THE REORGANIZATION. THE
UNION ASKED NSF TO POSTPONE THE ISSUANCE OF THE RIF NOTICES UNTIL
AGREEMENT HAD BEEN REACHED ON THE UNION PROPOSALS. THE ACTIVITY REFUSED
AND THE NOTICES WERE ISSUED ON OCTOBER 17.
THE ACTIVITY CONTENDS THAT IT DID BARGAIN ABOUT THOSE ITEMS IT WAS
OBLIGED TO AND THAT THERE WERE OTHER ITEMS WHICH WERE NONNEGOTIABLE, BUT
ABOUT WHICH IT WOULD RECEIVE SUGGESTIONS. MANAGEMENT, HOWEVER, HAD NOT
FULLY RESPONDED TO ALL OF THE UNION POINTS AND, IN FACT, HAD NOT
COMPLETED ITS RESPONSE UNTIL ABOUT OCTOBER 21, 1977. FURTHER ALTHOUGH
THE ACTIVITY AGREED TO SOME OF THE ITEMS, THE EXACT NATURE OF THE
AGREEMENTS WERE NOT VERY SPECIFIC AND WITH RESPECT TO SOME OTHER ITEMS
NSF AGREED TO BARGAIN ABOUT THEM FURTHER, E.G. ITEMS 16, 17 AND 20, BUT
HAD NOT EITHER REACHED AGREEMENT OR IMPASSE WHEN THE RIF NOTICES WERE
ISSUED. IN SUCH CIRCUMSTANCES, NOTING THE COMPLETE ABSENCE OF ANY
SHOWING OF EMERGENCY OR JUSTIFICATION OF WHY THE RIF COULD NOT BE
DELAYED, AND FOR THE REASONS SET FORTH ABOVE, IT IS CONCLUDED THAT THE
ACTIVITY VIOLATED SECTIONS 19(A)(1) AND (6) OF THE ORDER. THE ACTIVITY
VIOLATED THE ORDER BECAUSE IT FAILED TO GIVE THE UNION ADEQUATE ADVANCE
NOTICE OF THE IMPENDING REORGANIZATION AND, BECAUSE NEITHER AGREEMENT
NOR IMPASSE HAD BEEN REACHED BEFORE THE RIF NOTICES HAD BEEN ISSUED.
THUS NSF HAD NOT SUFFICIENTLY MET ITS OBLIGATION TO BARGAIN WITH THE
UNION CONCERNING THE IMPACT AND IMPLEMENTATION OF THE REORGANIZATION
BEFORE IT WAS PUT INTO EFFECT. /4/
ITEM 13 OF THE UNION PROPOSALS WAS A REQUEST TO NEGOTIATE CONCERNING
NSF CIRCULAR NO. 33 WHICH SET FORTH THE NSF RIF PROCEDURES AND HAD BEEN
INCORPORATED INTO THE CONTRACT. HOWEVER, CERTAIN TERMS OF CIRCULAR NO.
33 WERE IN CONFLICT WITH THE FEDERAL PERSONNEL MANUAL AND ACCORDINGLY
THE RIF NOTICE CHANGED CIRCULAR NO. 33 BY, IN EFFECT, DELETING
PROVISIONS PROVIDING FOR AN NSF APPEAL AND SUBSTITUTING SOME FORM OF NSF
REVIEW. ALTHOUGH NORMALLY IT WOULD SEEM CLEAR THE UNION COULD NOT
REQUEST TO BARGAIN ABOUT A TERM ALREADY COVERED BY THE COLLECTIVE
BARGAINING AGREEMENT, IN THE INSTANT SITUATION, WHERE THE ACTIVITY HAD
CHANGED SUCH A TERM, THE UNION'S REQUEST WAS QUITE APPROPRIATE.
IN SUCH CIRCUMSTANCES THE PURPOSES OF THE ORDER, TO INSURE MEANINGFUL
COLLECTIVE BARGAINING, WOULD REQUIRE THAT THE ACTIVITY BARGAIN ABOUT
SUCH AN ITEM. THE ACTIVITY, CITING NEW YORK AIR NATIONAL GUARD, A/SLMR
NO. 863, CONTENDS, THAT SINCE NSF RAISED THE NEGOTIABILITY ISSUE THE
UNION WAS REQUIRED TO PURSUE THE ORDER'S SECTION 11(C) PROCEDURES.
HOWEVER THE SUBJECT CASE IS DISTINGUISHABLE FROM THE NEW YORK AIR
NATIONAL GUARD CASE BECAUSE IN THE INSTANT CASE MANAGEMENT HAD, IN
EFFECT, MADE A UNILATERAL CHANGE IN THE CIRCULAR NO. 33 PROCEDURE AND
THUS, BY SO DOING, MADE ITS CONDUCT SUBJECT TO THE UNFAIR LABOR PRACTICE
PROVISIONS OF THE ORDER. THUS IT IS CONCLUDED THAT BY REFUSING TO
NEGOTIATE WITH THE UNION, AS PART OF THE UNION'S ATTEMPT TO BARGAIN
ABOUT IMPACT AND IMPLEMENTATION, WITH RESPECT TO CIRCULAR NO. 33, AT
LEAST IN SO FAR AS NSF HAD CHANGED THOSE APPEALS PROCEDURES, NSF
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER.
FINALLY HAVING CONCLUDED THAT NSF VIOLATED SECTIONS 19(A)(1) AND (6)
OF THE ORDER BECAUSE IT FAILED TO GIVE TIMELY NOTICE AND FAILED TO MEET
ITS OBLIGATIONS TO BARGAIN ABOUT THE IMPACT AND IMPLEMENTATION OF THE
REORGANIZATION IT IS FURTHER CONCLUDED THAT, IN THE CIRCUMSTANCES HEREIN
PRESENT THE IMPOSITION OF A STATUS QUO ANTE REMEDY WOULD NOT BE
APPROPRIATE. CF. DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION,
YUMA PROJECTS OFFICE, FLRC NO. 74A-52, COMMUNITY SERVICES
ADMINISTRATION, A/SLMR NO. 913. /5/
RECOMMENDATION
HAVING FOUND THAT NSF HAS ENGAGED IN CONDUCT WHICH VIOLATES SECTIONS
19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED, I RECOMMEND THAT
THE ASSISTANT SECRETARY ADOPT THE FOLLOWING ORDER.
ORDER
PURSUANT TO SECTION 6(B) OF THE EXECUTIVE ORDER 11491, AS AMENDED,
AND SECTION 203.26(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE NATIONAL
SCIENCE FOUNDATION SHALL:
1. CEASE AND DESIST FROM:
TAKING FURTHER REDUCTION-IN-FORCE ACTIONS PURSUANT TO THE PROCEDURES
SET FORTH IN NATIONAL SCIENCE FOUNDATION CIRCULAR NO. 33.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE EXECUTIVE ORDER:
(A) RESCIND NATIONAL SCIENCE FOUNDATION CIRCULAR NO. 33 AND, UPON
REQUEST, MEET AND CONFER WITH AFGE LOCAL 3403, AFL-CIO, REGARDING
REDUCTION-IN-FORCE PROCEDURES.
(B) IN THE FUTURE GIVE AFGE LOCAL 3403, AFL-CIO ADEQUATE AND TIMELY
NOTICE OF ANY IMPENDING REORGANIZATION AND UPON REQUEST OF LOCAL 3403,
BARGAIN WITH IT CONCERNING THE PROCEDURES TO IMPLEMENT AND THE ADVERSE
IMPACT OF ANY SUCH REORGANIZATION.
(C) POST AT ALL OF ITS FACILITIES COPIES OF THE ATTACHED NOTICE
MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY
SHALL BE SIGNED BY THE AGENCY'S DIRECTOR AND SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE DIRECTOR SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(D) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN WRITING WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
DATED: DECEMBER 15, 1978
WASHINGTON, D.C.
SAC:YW
APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND
ORDER OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS AND IN ORDER TO EFFECTUATE
THE POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED
LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE WE
HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT TAKE FURTHER REDUCTION-IN-FORCE ACTIONS PURSUANT TO THE
PROCEDURES SET FOR IN NATIONAL SCIENCE FOUNDATION CIRCULAR NO.33.
WE WILL RESCIND NATIONAL SCIENCE FOUNDATION CIRCULAR NO. 33 AND, UPON
REQUEST, MEET AND CONFER WITH THE NATIONAL SCIENCE FOUNDATION CIRCULAR
NO. 33, AFGE LOCAL 3403, AFL-CIO, REGARDING REDUCTION-IN-FORCE
PROCEDURES.
WE WILL GIVE AFGE LOCAL 3403, AFL-CIO ADEQUATE AND TIMELY NOTICE OF
ANY IMPENDING REORGANIZATION AND, UPON REQUEST OF LOCAL 3403, BARGAIN
WITH IT CONCERNING THE PROCEDURES TO IMPLEMENT AND THE ADVERSE IMPACT OF
ANY SUCH REORGANIZATION.
(AGENCY)
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
ADMINISTRATOR, LABOR-MANAGEMENT SERVICE ADMINISTRATION, UNITED STATES
DEPARTMENT OF LABOR WHOSE ADDRESS IS 3535 MARKET STREET, ROOM 14120,
PHILADELPHIA, PENNSYLVANIA 19104.
/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 (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE 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/ CF. DEPARTMENT OF THE AIR FORCE, 47TH FLYING TRAINING WING,
LAUGHLIN AIR FORCE BASE, TEXAS, 1 FLRA NO. 81. UNDER THE CIRCUMSTANCES
OF THE PRESENT CASE, AND HAVING CONCLUDED THAT THE RESPONDENT VIOLATED
THE ORDER BY FAILING TO PROVIDE ADEQUATE ADVANCE NOTICE OF ITS
REORGANIZATION AND REDUCTION-IN-FORCE DECISION, THE AUTHORITY FINDS IT
UNNECESSARY TO PASS UPON THE ADMINISTRATIVE LAW JUDGE'S FURTHER
CONCLUSION THAT THE PARTIES HEREIN WERE OBLIGATED TO BARGAIN TO EITHER
AGREEMENT OR IMPASSE BEFORE THE RESPONDENT COULD IMPLEMENT ITS DECISION.
/3/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
STATES SENATE AS A MEMBER OF THE AUTHORITY.
/4/ THE ACTIVITY CONTENDS THAT BECAUSE NO EMPLOYEES WERE ACTUALLY
ADVERSELY AFFECTED UNTIL JANUARY 1978, THERE WAS NO REFUSAL TO BARGAIN
AT THIS POINT. HOWEVER, IT IS CLEAR THAT THE ISSUANCE OF THE RIF
NOTICES WAS IN FACT THE FIRST STEP OF THE REORGANIZATION AND THUS NSF
HAD SERIOUSLY LIMITED THE UNION'S RIGHT TO BARGAIN BEFORE THE
IMPLEMENTATION OF THE REORGANIZATION. FURTHER IT IS CONCLUDED THAT IN
JANUARY 1978, WHEN EMPLOYEES WERE ACTUALLY AFFECTED, NO AGREEMENT OR
IMPASSE HAD BEEN REACHED AND THUS THE ACTIVITY CONTINUED TO VIOLATE
SECTION 19(A)(1) AND (6) OF THE ORDER.
/5/ BECAUSE THE ORIGINAL CIRCULAR NO. 33 VIOLATES THE FPM IT WOULD
NOT BE APPROPRIATE TO REINSTATE IT.