Norfolk Naval Shipyard (Respondent) and International Federation of Professional and Technical Engineers, Local One (Complainant)
[ v03 p92 ]
03:0092(15)CA
The decision of the Authority follows:
3 FLRA No. 15
NORFOLK NAVAL SHIPYARD
Respondent
and
INTERNATIONAL FEDERATION OF PROFESSIONAL
AND TECHNICAL ENGINEERS, LOCAL ONE
Complainant
Assistant Secretary
Case No. 22-09154(CA)
DECISION AND ORDER
ON AUGUST 16, 1979, 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 ACTION. THE RESPONDENT
FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION
AND ORDER.
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 RULES AND REGULATIONS
(45 F.R. 3482, JANUARY 17, 1980). 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 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 RESPONDENT'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS
THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION
AS MODIFIED HEREIN.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT VIOLATED
SECTION 19(A)(1) AND (6) OF THE ORDER BY UNILATERALLY ENDING THE
EXISTING PRACTICE OF FREE ACCESS BY EMPLOYEES TO CERTAIN WORK FILES USED
IN THE PERFORMANCE OF THEIR DUTIES, AS WELL AS IN PREPARING RESPONSES TO
ADVERSE RATINGS, APPRAISALS AND LETTERS OF CAUTION, AND THEREAFTER
REQUIRING A SUPERVISOR'S PERMISSION TO USE THE FILES. THE FAILURE TO
GIVE NOTICE ALSO PRECLUDED AN OPPORTUNITY TO NEGOTIATE ABOUT THE IMPACT
OF THE DECISION, IN FURTHER VIOLATION OF SECTION 19(A)(1) AND (6). IN
REACHING THIS CONCLUSION, THE ADMINISTRATIVE LAW JUDGE FOUND, AMONG
OTHER THINGS, THAT ALTHOUGH USE OF THE FILES FACILITATED THE PERFORMANCE
OF EMPLOYEE DUTIES, THE NEW RULE WAS MERELY A CHANGE IN HOW EMPLOYEES
SECURED ACCESS TO THE FILES AND, THUS, NEGOTIABLE AS IT WAS NOT A
MANAGEMENT RIGHT RESERVED IN SECTIONS 11(B) AND 12(B)(5) OF THE ORDER.
CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THE AUTHORITY FINDS THAT THE
CHANGE IN PROCEDURES FOR EMPLOYEE ACCESS TO THE WORK FILES, AS USED IN
THE PERFORMANCE OF THEIR DUTIES, RELATED TO THE RESPONDENT'S METHODS OF
OPERATION, AND WAS THUS A DECISION RESERVED TO MANAGEMENT BY SECTION
12(B)(5) OF THE ORDER. /1/ ACCORDINGLY, THAT ASPECT OF THE COMPLAINT
WILL BE DISMISSED. THE AUTHORITY HEREBY ADOPTS THE REMAINDER OF THE
ADMINISTRATIVE LAW JUDGE'S DECISION, WHICH FOUND VIOLATIONS OF SECTION
19(A)(1) AND (6) FOR THE FAILURE TO GIVE NOTICE AND OPPORTUNITY TO
BARGAIN ABOUT THE IMPACT OF THE CHANGE IN ACCESS FOR PERFORMANCE OF
EMPLOYEE DUTIES, AS WELL AS FOR THE FAILURE TO BARGAIN OVER THE CHANGE
IN PRACTICE REGARDING ACCESS TO FILES FOR PREPARING RESPONSES TO CHARGES
OF POOR WORK, AND THE IMPACT OF THAT CHANGE. /2/
ORDER
PURSUANT TO SECTION 2400.2 OF THE 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 NORFOLK NAVAL SHIPYARD, NORFOLK, VIRGINIA, SHALL:
1. CEASE AND DESIST FROM:
(A) ENFORCING THE POLICY OF REQUIRING EMPLOYEES IN CODE 134.1 TO SEEK
PERMISSION FROM THEIR SUPERVISOR PRIOR TO GAINING ACCESS TO, EXAMINING
AND USING WORK FILES FOR THE PURPOSE OF RESPONDING TO EVALUATIONS BY
MANAGEMENT CONCERNING THEIR WORK PERFORMANCE.
(B) CHANGING THE PROCEDURES FOR EMPLOYEES TO GAIN ACCESS TO WORK
FILES USED FOR NON-DUTY PURPOSES WITHOUT FIRST AFFORDING LOCAL ONE,
INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, THE
EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES, NOTICE OF ANY INTENDED CHANGE, AND AN
OPPORTUNITY TO BARGAIN CONCERNING THE INTENDED CHANGE, ITS
IMPLEMENTATION, OR ITS IMPACT UPON EMPLOYEES IT REPRESENTS.
(C) CHANGING THE PROCEDURES FOR EMPLOYEES TO GAIN ACCESS TO WORK
FILES USED FOR DUTY PURPOSES WITHOUT FIRST AFFORDING LOCAL ONE,
INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, THE
EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES, NOTICE OF ANY INTENDED CHANGE, AND AN
OPPORTUNITY TO BARGAIN CONCERNING THE CHANGE'S IMPLEMENTATION AND IMPACT
UPON EMPLOYEES IT REPRESENTS.
(D) 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 IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE EXECUTIVE ORDER:
(A) REPEAL THE PROCEDURE WHICH REQUIRES EMPLOYEES IN CODE 134.1 TO
SEEK PERMISSION FROM THEIR SUPERVISOR PRIOR TO GAINING ACCESS TO,
EXAMINING AND USING WORK FILES FOR THE PURPOSE OF RESPONDING TO
EVALUATIONS BY MANAGEMENT CONCERNING THEIR WORK PERFORMANCE.
(B) NOTIFY LOCAL ONE, INTERNATIONAL FEDERATION OF PROFESSIONAL AND
TECHNICAL ENGINEERS, OF ANY INTENDED CHANGES IN THE PROCEDURES FOR
GAINING ACCESS TO, EXAMINING AND USING WORK FILES FOR NON-DUTY PURPOSES,
AND AFFORD LOCAL ONE, INTERNATIONAL FEDERATION OF PROFESSIONAL AND
TECHNICAL ENGINEERS, AN OPPORTUNITY TO BARGAIN CONCERNING ANY SUCH
PROPOSED CHANGES, THEIR IMPLEMENTATION, OR IMPACT UPON EMPLOYEES IT
REPRESENTS.
(C) NOTIFY LOCAL ONE, INTERNATIONAL FEDERATION OF PROFESSIONAL AND
TECHNICAL ENGINEERS, OF ANY INTENDED CHANGES IN THE PROCEDURES FOR
GAINING ACCESS TO, EXAMINING AND USING WORK FILES FOR DUTY PURPOSES OR
OF ANY OTHER CHANGES IN PERSONNEL POLICIES, PRACTICES OR OTHER MATTERS
AFFECTING WORKING CONDITIONS OF EMPLOYEES IN THE UNIT, AND AFFORD LOCAL
ONE, INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS,
AN OPPORTUNITY TO BARGAIN CONCERNING THE IMPLEMENTATION AND IMPACT OF
SUCH CHANGES ON EMPLOYEES IT REPRESENTS.
(D) POST AT ITS FACILITIES IN NORFOLK, VIRGINIA, 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 NORFOLK NAVAL SHIPYARD AND SHALL
BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN
CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE NORFOLK NAVAL SHIPYARD SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(F) 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., APRIL 28, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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 ENFORCE THE POLICY OF REQUIRING EMPLOYEES IN CODE 134.1
TO SEEK PERMISSION FROM THEIR SUPERVISOR PRIOR TO GAINING ACCESS TO,
EXAMINING AND USING WORK FILES FOR THE PURPOSE OF RESPONDING TO
EVALUATIONS BY MANAGEMENT CONCERNING THEIR WORK PERFORMANCE.
WE WILL NOT CHANGE THE PROCEDURES FOR EMPLOYEES TO GAIN ACCESS TO
WORK FILES USED FOR NON-DUTY PURPOSES WITHOUT FIRST AFFORDING LOCAL ONE,
INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, THE
EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES, NOTICE OF ANY INTENDED CHANGE, AND AN
OPPORTUNITY TO BARGAIN CONCERNING THE INTENDED CHANGE, ITS
IMPLEMENTATION, OR ITS IMPACT UPON EMPLOYEES IT REPRESENTS.
WE WILL NOT CHANGE THE PROCEDURES FOR EMPLOYEES TO GAIN ACCESS TO
WORK FILES USED FOR DUTY PURPOSES WITHOUT FIRST AFFORDING LOCAL ONE,
INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, THE
EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES, NOTICE OF ANY INTENDED CHANGE, AND AN
OPPORTUNITY TO BARGAIN CONCERNING THE CHANGE'S IMPLEMENTATION AND IMPACT
UPON EMPLOYEES IT REPRESENTS.
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 REPEAL THE PROCEDURE WHICH REQUIRES EMPLOYEES IN CODE 134.1
TO SEEK PERMISSION FROM THEIR SUPERVISOR PRIOR TO GAINING ACCESS TO,
EXAMINING AND USING WORK FILES FOR THE PURPOSE OF RESPONDING TO
EVALUATIONS BY MANAGEMENT CONCERNING THEIR WORK PERFORMANCE.
WE WILL NOTIFY LOCAL ONE, INTERNATIONAL FEDERATION OF PROFESSIONAL
AND TECHNICAL ENGINEERS, OF ANY INTENDED CHANGES IN THE PROCEDURES FOR
GAINING ACCESS TO, EXAMINING AND USING WORK FILES USED FOR NON-DUTY
PURPOSES, AND AFFORD LOCAL ONE, INTERNATIONAL FEDERATION OF PROFESSIONAL
AND TECHNICAL ENGINEERS, AN OPPORTUNITY TO BARGAIN CONCERNING ANY SUCH
PROPOSED CHANGES, THEIR IMPLEMENTATION, OR IMPACT UPON EMPLOYEES IT
REPRESENTS.
WE WILL NOTIFY LOCAL ONE, INTERNATIONAL FEDERATION OF PROFESSIONAL
AND TECHNICAL ENGINEERS, OF ANY INTENDED CHANGES IN THE PROCEDURES FOR
GAINING ACCESS TO, EXAMINING AND USING WORK FILES FOR DUTY PURPOSES OR
OF ANY OTHER CHANGES IN PERSONNEL POLICIES, PRACTICES OR OTHER MATTERS
AFFECTING WORKING CONDITIONS OF EMPLOYEES IN THE UNIT, AND AFFORD LOCAL
ONE, INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS,
AN OPPORTUNITY TO BARGAIN CONCERNING THE IMPLEMENTATION AND IMPACT OF
SUCH CHANGES ON EMPLOYEES IT REPRESENTS.
. . . .
(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, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: 1730 K
STREET, NW, ROOM 401, WASHINGTON, D.C. 20006, AND WHOSE TELEPHONE NUMBER
IS (202) 653-7213.
WALTER B. BAGBY, JR.
LABOR RELATIONS ADVISOR
DEPARTMENT OF THE NAVY
OFFICE OF CIVILIAN PERSONNEL
SOUTHERN FIELD DIVISION
NORFOLK, VIRGINIA 23511
FOR THE RESPONDENT
JAMES E. LYONS
DIRECTOR OF PUBLIC EMPLOYEE AFFAIRS
1126-- 16TH STREET, N.W., SUITE 111
WASHINGTON, D.C. 20036
FOR THE COMPLAINANT
BEFORE: SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON DECEMBER 28,
1978 BY THE REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES, U.S.
DEPARTMENT OF LABOR, PHILADELPHIA REGION, A HEARING WAS HELD BEFORE THE
UNDERSIGNED IN NORFOLK, VIRGINIA.
THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREIN CALLED THE ORDER). IT WAS BASED ON A COMPLAINT FILED BY
INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, LOCAL
ONE (HEREIN CALLED COMPLAINANT AND LOCAL ONE IFPTE) AGAINST THE NORFOLK
NAVAL SHIPYARD (HEREIN CALLED RESPONDENT). SAID COMPLAINT ALLEGED THAT
RESPONDENT VIOLATED SECTIONS 19(A)(1) AND (6) OF THE ORDER BY
UNILATERALLY CHANGING A WORKING CONDITION BY DENYING ACCESS TO
LABORATORY REPORTS AND SPECIFICATIONS WITHOUT FIRST OBTAINING
SUPERVISORY PERMISSION.
BOTH PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE AND TO EXAMINE AND
CROSS-EXAMINE WITNESSES. THEREAFTER BOTH PARTIES FILED BRIEFS WITH THE
UNDERSIGNED WHICH HAVE BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD HEREIN, FROM MY OBSERVATION OF THE WITNESSES
AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE ADDUCED
AT THE HEARING I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN THE RESPONDENT AND COMPLAINANT HAVE
BEEN PARTIES TO A COLLECTIVE BARGAINING AGREEMENT COVERING A UNIT OF
EMPLOYEES INCLUDING CHEMISTS AND PHYSICAL SCIENCE TECHNICIANS. THIS
UNIT INCLUDES CHEMISTS EMPLOYED WITHIN CODE 134.1. CODE 134.1 IS A
QUALITY CONTROL LABORATORY WITHIN WHICH THE CHEMICAL QUALITY OF
MATERIALS IN THE SHIPYARD IS EXAMINED AND IN WHICH VARIOUS MATERIALS,
FROM OILS TO METALS, ARE ANALYZED.
2. THERE WERE PRESENT IN THE CODE 134 WORK AREA CERTAIN FILES
CONTAINED IN FILE CABINETS. THESE FILES CONTAINED THE ANALYTICAL TESTS
RUN BY EMPLOYEES AND THE WORK SHEETS USED BY EMPLOYEES IN RUNNING SUCH
TESTS. ADDITIONALLY CERTAIN SPECIFICATIONS AND SHIPYARD DIRECTIVES ON
MATERIAL ANALYSIS WERE CONTAINED IN THE FILES.
3. THESE FILES WERE USED BY EMPLOYEES IN CODE 134.1 FOR A NUMBER OF
PURPOSES IN PERFORMING THEIR DUTIES, INCLUDING TO DETERMINE IF A SAMPLE
COULD BE TESTED IN THE SAME MANNER AS IN THE PAST, TO ACHIEVE
CONSISTENCY IN RESULTS IN RUNNING SAMPLES AND TESTS, TO DETERMINE IF A
SPECIFICATION CAN BE INTERPRETED IN THE SAME MANNER AS IN THE PAST AND
TO EXPEDITE THE PERFORMANCE OF THE WORK.
4. THESE FILES COULD BE AND WERE ALSO USED BY EMPLOYEES IN CODE
134.1 TO ANSWER ALLEGATIONS AND CHARGES OF POOR AND INSUFFICIENT WORK
PERFORMANCE.
5. PRIOR TO MARCH 31, 1978 EMPLOYEES IN CODE 134.1 HAD FREE AND
UNLIMITED ACCESS TO THE FILES AND THE EMPLOYEES USED THE FILES
REGULARLY. THERE WAS NO NEED TO ASK FOR PERMISSION OR TO ESTABLISH A
JUSTIFICATION FOR USING THE FILES AND THEY COULD BE USED AT ANY TIME
BOTH AT THE FILE CABINETS AND AT THE EMPLOYEES' DESKS.
6. ON OR ABOUT MARCH 21, 1978 CODE 134.1 SUPERVISOR PAUL WILSON
OBSERVED A CODE 134.1 EMPLOYEE, MS. TERRY EMORY, EXAMINING THE FILES IN
ORDER TO PREPARE A RESPONSE TO A LETTER OF CAUTION SHE HAD RECEIVED
WHICH ALLEGED POOR WORK PERFORMANCE. ALTHOUGH SUPERVISOR WILSON
CONTENDS THAT HE DID NOT KNOW WHY MS. EMORY WAS USING THE FILES HE
ORDERED HER OUT OF THE FILES. THIS WAS APPARENTLY THE FIRST INSTANCE OF
SUPERVISOR WILSON REFUSING ACCESS TO THE FILES TO ANYONE IN CODE 134.1.
7. ON MARCH 31, 1978 A MEETING OF ALL CODE 134.1 EMPLOYEES WAS
CALLED BY SUPERVISOR WILSON. ALSO PRESENT AT THE MEETING WAS UNION
STEWARD JIM RIEVES, A CODE 134.2 EMPLOYEE. SUPERVISOR WILSON STATED
THAT FROM THAT POINT ON IF THE CODE 134.1 EMPLOYEES WANTED TO USE THE
FILES THEY WOULD BE ABLE TO USE THE FILES ON A NEED TO KNOW BASIS AND
ONLY AFTER THEY RECEIVED SUPERVISOR WILSON'S PERMISSION. SUPERVISOR
WILSON MADE IT CLEAR THAT THIS POLICY OF ASKING PERMISSION WENT INTO
EFFECT IMMEDIATELY AND APPLIED EVEN IN HIS ABSENCE AND EVEN IN THE CASE
OF EMERGENCY.
8. UNION STEWARD RIEVES OBJECTED BECAUSE HE CONTENDED THE STATEMENTS
OF SUPERVISOR WILSON CONSTITUTED A CHANGE IN POLICY. MR. SAUL LOWE,
SUPERVISOR WILSON'S IMMEDIATE SUPERIOR, THEN ANNOUNCED THAT THERE WOULD
BE A SEPARATE MEETING WITH THE COMPLAINANT TO CLARIFY THE NEW POLICY.
9. ON APRIL 4, 1978 ANOTHER MEETING WAS HELD. PRESENT AT THE
MEETING WERE SUPERVISOR WILSON, MR. LOWE, AND LOCAL ONE IFPTE TREASURER
WILSON, AND MR. COLGIN, A UNION MEMBER. AMONG OTHER ITEMS, THE
LIMITATION ON THE USE OF THE FILES WAS DISCUSSED, BUT THE UNION DID NOT
REQUEST TO BARGAIN ABOUT THE POLICY.
10. ON APRIL 10, 1978 SUPERVISOR WILSON CALLED ANOTHER MEETING OF
THE CODE 134.1 EMPLOYEES AND, ALTHOUGH THERE WAS SOME CONFUSION,
REITERATED THE POLICY STATED AT THE MARCH 31, 1978 MEETING.
11. SUBSEQUENT TO THE MARCH 31 MEETING SUPERVISOR WILSON DENIED NO
ONE PERMISSION TO USE THE FILES. SOME CODE 134.1 EMPLOYEES DID NOT USE
THE FILES ANY LONGER AND OTHERS IGNORED THE NEW POLICY AND USED THE
FILES WITHOUT SEEKING PERMISSION.
12. NORMALLY WHEN A POLICY WAS CHANGED BY RESPONDENT, IF IT WAS IN
WRITING, A DRAFT OF THE PROPOSED CHANGE WAS FURNISHED TO THE COMPLAINANT
WHICH WOULD MAKE COMMENTS AND HAVE AN OPPORTUNITY TO NEGOTIATE ABOUT
THE
POLICY. IF THE PROPOSED POLICY WERE ORAL, THE COMPLAINANT WAS GIVEN
ADVANCE NOTICE OF THE PROPOSED CHANGE AND AN OPPORTUNITY TO NEGOTIATE.
CONCLUSIONS
THE DECISION TO CHANGE THE EXISTING PRACTICE OF FREE ACCESS TO FILES
TO ONE REQUIRING EACH EMPLOYEE TO DEMONSTRATE A NEED TO USE THE FILES
AND TO SECURE A SUPERVISOR'S PERMISSION BEFORE USING THE FILES WAS A
SUBSTANTIAL ENOUGH CHANGE IN WORKING CONDITIONS TO ENTITLE THE
COMPLAINANT TO ADVANCE NOTICE OF THE PROPOSED CHANGE AND TO AN
OPPORTUNITY TO NEGOTIATE CONCERNING SUCH CHANGE. THE FILES IN QUESTION
WERE USED BY THE EMPLOYEES AND FACILITATED THE PERFORMANCE OF THEIR
DUTIES. THE CHANGE OF PROCEDURE WITH RESPECT TO ACCESS TO THE FILES
COULD FORESEEABLY AFFECT THE EASE AND SPEED WITH WHICH THE EMPLOYEES
PERFORMED THEIR DUTIES, MIGHT LEAD TO POOR PERFORMANCE RATINGS /3/ AND
THUS WAS A MATTER ABOUT WHICH THE UNION HAD A RIGHT TO NEGOTIATE. /4/
RESPONDENT'S CONTENTIONS THAT IT WAS NOT OBLIGED TO BARGAIN ABOUT THE
CHANGE IN PROCEDURE BECAUSE IT IS A MANAGEMENT RIGHT UNDER SECTION
12(B)(5) OF THE ORDER, WHICH DEALS WITH THE METHODS BY WHICH OPERATIONS
ARE TO BE CONDUCTED, AND IS A MANAGEMENT PREROGATIVE UNDER SECTION 11(B)
OF THE ORDER, WHICH DEALS WITH THE TECHNOLOGY OF PERFORMING ITS WORK,
ARE REJECTED. THE EMPLOYEES WERE NOT TOLD THAT THEY WERE PROHIBITED
FROM USING THE FILES AND SUPERVISOR WILSON TESTIFIED THAT HE WOULD
ALWAYS GRANT PERMISSION TO USE THE FILES WHEN IT WAS RELATED TO
PERFORMING AN EMPLOYEE'S WORK. ACCORDINGLY THIS WAS NOT A CHANGE IN THE
TECHNOLOGY OR THE METHODS FOR DOING THE WORK, RATHER IT WAS MERELY A
CHANGE IN HOW EMPLOYEES SECURED ACCESS TO THE FILES AND WAS THUS
NEGOTIABLE. CF. NATIONAL LABOR RELATIONS BOARD, A/SLMR NO. 246.
FURTHER THE FILES IN QUESTION COULD BE, AND WERE, USED BY EMPLOYEES IN
PREPARING RESPONSES TO ADVERSE OR UNCOMPLIMENTARY RATINGS, APPRAISALS
AND LETTERS OF CAUTION AND ANY CHANGE IN THE ACCESS TO THEM WOULD BE
NEGOTIABLE BECAUSE, CLEARLY, SUCH USE OF THE FILES IS IN NO WAY
ENCOMPASSED BY THE MANAGEMENT RIGHTS SET FORTH IN SECTIONS 12(B)(5) AND
11(B) OF THE ORDER.
IT IS CONCLUDED, THEREFORE THAT RESPONDENT VIOLATED SECTIONS 19(A)(1)
AND (6) OF THE ORDER BECAUSE IT DID NOT GIVE THE COMPLAINANT SUFFICIENT
NOTICE AND OPPORTUNITY, AS REQUIRED BY THE ORDER, TO NEGOTIATE
CONCERNING THE CHANGE. CF. FEDERAL RAILROAD ADMINISTRATION, A/SLMR NO.
418 AND NATIONAL LABOR RELATIONS BOARD, SUPRA.
FINALLY COMPLAINANT WAS NOT GIVEN SUFFICIENT NOTICE AND AFFORDED AN
OPPORTUNITY TO BARGAIN CONCERNING THE IMPACT AND IMPLEMENTATION OF THE
CHANGE. IN THIS REGARD COMPLAINANT WAS ENTITLED TO SUCH NOTICE AND
OPPORTUNITY EVEN IF THE RESPONDENT WAS NOT OBLIGATED TO BARGAIN ABOUT
THE CHANGE ITSELF. AGAIN, THE COMPLAINANT WAS ENTITLED TO NOTICE OF THE
CHANGE SUFFICIENTLY IN ADVANCE OF THE CHANGE TO ENABLE IT TO BARGAIN
MEANINGFULLY AND EFFECTIVELY ABOUT THE CHANGE'S IMPACT AND
IMPLEMENTATION OF THE CHANGE BEFORE IT BECAME EFFECTIVE. BY NOT
AFFORDING COMPLAINANT SUCH NOTICE AND OPPORTUNITY TO BARGAIN ABOUT THE
IMPACT AND IMPLEMENTATION OF THE CHANGE, RESPONDENT VIOLATED SECTIONS
19(A)(1) AND (6) OF THE ORDER. DEPARTMENT OF TREASURY, IRS SOUTHWEST, 1
FLRA 70 AND FEDERAL RAILROAD ADMINISTRATION, SUPRA.
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT WHICH IS
VIOLATIVE ORDER, I RECOMMEND THAT THE FEDERAL LABOR RELATIONS AUTHORITY
ISSUE THE FOLLOWING ORDER PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S
TRANSITION RULES AND REGULATIONS (44 F.R. 7) AND SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR MANAGEMENT RELATIONS STATUTE (92 STAT. 1215):
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 NORFOLK NAVAL SHIPYARD SHALL:
1. CEASE AND DESIST FROM:
(A) ENFORCING THE POLICY OF REQUIRING EMPLOYEES IN CODE 134.1 TO SEEK
PERMISSION FROM THEIR SUPERVISOR PRIOR TO GAINING ACCESS TO, EXAMINING
AND USING WORK FILES.
(B) CHANGING THE PROCEDURES FOR EMPLOYEES TO GAIN ACCESS TO WORK
FILES OR MAKING ANY OTHER CHANGES IN WORKING CONDITIONS WITHOUT FIRST
AFFORDING LOCAL ONE, INTERNATIONAL FEDERATION OF PROFESSIONAL AND
TECHNICAL ENGINEERS, THE EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES, OR
ANY OTHER EXCLUSIVE REPRESENTATIVE OF EMPLOYEES, NOTICE OF ANY INTENDED
CHANGE AND, AN OPPORTUNITY TO BARGAIN CONCERNING THE INTENDED CHANGE AND
ITS IMPLEMENTATION AND IMPACT UPON EMPLOYEES IT REPRESENTS.
(C) 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 IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE EXECUTIVE ORDER:
(A) REPEAL THE PROCEDURE WHICH REQUIRES EMPLOYEES IN CODE 134.1 TO
SEEK PERMISSION FROM THEIR SUPERVISOR PRIOR TO GAINING ACCESS TO,
EXAMINING AND USING WORK FILES.
(B) NOTIFY LOCAL ONE, INTERNATIONAL FEDERATION OF PROFESSIONAL AND
TECHNICAL ENGINEERS, OF ANY INTENDED CHANGE IN THE PROCEDURES FOR
GAINING ACCESS TO, EXAMINING AND USING WORK FILES OR ANY OTHER CHANGES
IN PERSONNEL POLICIES PRACTICES OR OTHER MATTERS AFFECTING WORKING
CONDITIONS OF EMPLOYEES IN THE UNIT AND AFFORD LOCAL ONE, INTERNATIONAL
FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS AN OPPORTUNITY TO
BARGAIN CONCERNING ANY SUCH PROPOSED CHANGES AND CONCERNING THE
IMPLEMENTATION AND IMPACT OF SUCH CHANGES ON EMPLOYEES IT REPRESENTS.
(C) POST AT ITS FACILITIES IN NORFOLK, VIRGINIA 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 NORFOLK NAVAL SHIPYARD AND SHALL
BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN
CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE NORFOLK NAVAL SHIPYARD SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(D) 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.
SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
DATED: AUGUST 16, 1979
WASHINGTON, D.C.
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 6 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT ENFORCE THE POLICY OF REQUIRING EMPLOYEES IN CODE 134.1
TO SEEK PERMISSION FROM THEIR SUPERVISOR PRIOR TO GAINING ACCESS TO,
EXAMINING AND USING WORK FILES.
WE WILL NOT CHANGE THE PROCEDURES FOR EMPLOYEES TO GAIN ACCESS TO
WORK FILES OR MAKE ANY OTHER CHANGES IN WORKING CONDITIONS WITHOUT FIRST
AFFORDING LOCAL ONE, INTERNATIONAL FEDERATION OF PROFESSIONAL AND
TECHNICAL ENGINEERS THE EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES, OR
ANY OTHER EXCLUSIVE REPRESENTATIVE OF EMPLOYEES, NOTICE OF ANY INTENDED
CHANGE AND ITS IMPLEMENTATION AND IMPACT UPON EMPLOYEES IT REPRESENTS.
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 REPEAL THE PROCEDURE WHICH REQUIRES EMPLOYEES IN CODE 134.1
TO SEEK PERMISSION FROM THEIR SUPERVISOR PRIOR TO GAINING ACCESS TO,
EXAMINING AND USING WORK FILES.
WE WILL NOTIFY LOCAL ONE, INTERNATIONAL FEDERATION OF PROFESSIONAL
AND TECHNICAL ENGINEERS OF ANY INTENDED CHANGE IN THE PROCEDURES FOR
GAINING ACCESS TO, EXAMINING AND USING WORK FILES OR ANY OTHER CHANGES
IN PERSONNEL POLICIES PRACTICES OR OTHER MATTERS AFFECTING WORKING
CONDITIONS OF EMPLOYEES IN THE UNIT AND AFFORD LOCAL ONE, INTERNATIONAL
FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS AN OPPORTUNITY TO
BARGAIN CONCERNING ANY SUCH PROPOSED CHANGES AND CONCERNING THE
IMPLEMENTATION AND IMPACT OF SUCH CHANGES ON EMPLOYEES IT REPRESENTS.
. . . .
(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 THE EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
WITH THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY,
WHOSE ADDRESS IS ROOM 418, 1111-- 20TH STREET, N.W., WASHINGTON, D.C.
20036, WHOSE TELEPHONE NUMBER IS: (202) 254-6581.
/1/ SECTION 12(B)(5) OF THE ORDER PROVIDES:
SEC. 12. BASIC PROVISIONS OF AGREEMENTS. EACH AGREEMENT BETWEEN AN
AGENCY AND A LABOR
ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
. . . .
(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
ACCORDANCE WITH APPLICABLE LAWS
AND REGULATIONS--
. . . .
(5) TO DETERMINE THE METHODS, MEANS AND PERSONNEL BY WHICH SUCH
OPERATIONS ARE TO BE
CONDUCTED; . . .
THE TERM "METHODS" AS IT APPEARS IN SECTION 12(B)(5) OF THE ORDER HAS
BEEN DEFINED BY THE FEDERAL LABOR RELATIONS COUNCIL TO MEAN "THE
PROCEDURES, PROCESSES, WAYS, TECHNIQUES, MODES, MANNERS AND SYSTEMS BY
WHICH OPERATIONS ARE TO BE CONDUCTED-- IN SHORT, HOW OPERATIONS ARE TO
BE CONDUCTED." TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL
AND NAVAL PUBLIC WORKS CENTER, NORFOLK, VIRGINIA, 1 FLRC 431 AT PAGE
436, FLRC NO. 71A-56 (JUNE 29, 1973). SEE ALSO 78TH DIVISION
(TRAINING), KILMER USAR CENTER, EDISON, NEW JERSEY, 1 FLRA NO. 97(1979).
/2/ 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.
/3/ THE FACT IT HAD NOT ACTUALLY LED TO SUCH ADVERSE APPRAISALS IS
IRRELEVANT. THE FACT THAT SUFFICIENT EFFECT AND IMPACT UPON EMPLOYEES
WAS REASONABLY FORESEEABLE OR POSSIBLE WAS SUFFICIENT TO ENTITLE
COMPLAINANT TO NEGOTIATE ABOUT THE CHANGE.
/4/ BECAUSE SOME EMPLOYEES IGNORED THE NEW PROCEDURE AND CONTINUED TO
USE THE FILES FREELY DOES NOT MEAN THAT RESPONDENT HAD NOT CHANGED THE
PROCEDURE FOR USING THE FILES.