Aircraft Fire and Rescue Division, Air Operations Department, Naval Air Station, Norfolk, Virginia (Respondent) and American Federation of Government Employees, Local 2255, AFL-CIO (Complainant)
[ v03 p118 ]
03:0118(18)CA
The decision of the Authority follows:
3 FLRA No. 18
AIRCRAFT FIRE AND RESCUE DIVISION,
AIR OPERATIONS DEPARTMENT,
NAVAL AIR STATION, NORFOLK, VIRGINIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2225, AFL-CIO
Complainant
Assistant Secretary
Case No. 22-09088(CA)
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD
ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTION. THEREAFTER, THE COMPLAINANT FILED EXCEPTIONS TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER, AND A
SUPPORTING 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 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 COMPLAINANTS' EXCEPTIONS AND SUPPORTING BRIEF, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATION.
ORDER /0/
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 AIRCRAFT FIRE AND RESCUE DIVISION, AIR OPERATIONS DEPARTMENT,
NAVAL AIR STATION, NORFOLK, VIRGINIA, SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING ANY FUTURE CHANGE IN THE PLACE OF DUTY OR WORKSITE,
INVOLVING EMPLOYEES REPRESENTED EXCLUSIVELY BY THE AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, LOCAL 2225, AFL-CIO, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES, WITHOUT FIRST NOTIFYING THE EXCLUSIVE
REPRESENTATIVE OF THE PROPOSED CHANGE, AND AFFORDING IT AN OPPORTUNITY
TO MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON
THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN IMPLEMENTING THE CHANGE
OF WORKSITE, AND ON THE IMPACT SUCH CHANGE OF WORKSITE WILL HAVE ON
ADVERSELY AFFECTED UNIT EMPLOYEES.
(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, OR REFUSING TO CONSULT, CONFER, OR
NEGOTIATE WITH THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES AS REQUIRED
BY THE ORDER.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) UPON REQUEST, MEET AND CONFER WITH THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2225, AFL-CIO, TO THE EXTENT CONSONANT WITH
LAW AND REGULATIONS CONCERNING THE PROCEDURES WHICH MANAGEMENT
OBSERVED
IN IMPLEMENTING A CHANGE OF PLACE OF DUTY OR WORKSITE INVOLVING ITS
EMPLOYEES FROM BUILDING LP-166 TO STRUCTURAL STATION NO. 2, NORFOLK
NAVAL AIR STATION, NORFOLK, VIRGINIA, AND THE IMPACT SUCH CHANGE OF
WORKSITE HAD ON ADVERSELY AFFECTED UNIT EMPLOYEES.
(B) POST AT ALL FACILITIES AND INSTALLATIONS OF THE AIRCRAFT FIRE AND
RESCUE DIVISION, AIR OPERATIONS DEPARTMENT, NAVAL AIR STATION, NORFOLK,
VIRGINIA, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE
FURNISHED BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE
SIGNED BY THE DIRECTOR OF THE AIRCRAFT FIRE AND RESCUE DIVISION, AIR
OPERATIONS DEPARTMENT, NAVAL AIR STATION, NORFOLK, VIRGINIA, 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., 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 INSTITUTE ANY FUTURE CHANGE IN THE PLACE OF DUTY OR
WORKSITE, INVOLVING EMPLOYEES REPRESENTED EXCLUSIVELY BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2225, AFL-CIO, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, WITHOUT FIRST NOTIFYING THE
EXCLUSIVE REPRESENTATIVE OF THE PROPOSED CHANGE, AND AFFORDING IT AN
OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN
IMPLEMENTING THE CHANGE OF WORKSITE, AND ON THE IMPACT SUCH CHANGE OF
WORKSITE WILL HAVE ON ADVERSELY AFFECTED UNIT EMPLOYEES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED, OR REFUSE TO CONSULT, CONFER, OR
NEGOTIATE WITH THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES AS REQUIRED
BY THE ORDER.
WE WILL UPON REQUEST, MEET AND CONFER WITH THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2225, AFL-CIO, TO THE EXTENT CONSONANT WITH
LAW AND REGULATIONS, CONCERNING THE PROCEDURES WHICH MANAGEMENT
OBSERVED
IN IMPLEMENTING A CHANGE OF PLACE OF DUTY OR WORKSITE INVOLVING OUR
EMPLOYEES FROM BUILDING LP-166 TO STRUCTURAL STATION NO. 2, NORFOLK
NAVAL AIR STATION, NORFOLK, VIRGINIA, AND THE IMPACT SUCH CHANGE OF
WORKSITE HAD ON ADVERSELY AFFECTED UNIT EMPLOYEES.
. . . .
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR SIXTY (60) CONSECUTIVE DAYS FROM
THE DATE OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: ROOM
401, 1730 K STREET, NW, WASHINGTON, D.C. 20006, AND WHOSE TELEPHONE
NUMBER IS (202) 653-7213.
EDWARD E. RUTLEDGE
NATIONAL REPRESENTATIVE
AFGE, AFL-CIO
POST OFFICE BOX 15126
CHESAPEAKE, VIRGINIA 23320
FOR THE COMPLAINANT
WALTER BAGBY
LABOR RELATIONS ADVISOR
BUILDING A-67
NAVAL AIR STATION
NORFOLK, VIRGINIA 23511
FOR THE RESPONDENTS
BEFORE: WILLIAM A. POPE, II
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
THIS CASE AROSE PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED, AS A
RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON JUNE 21, 1978, AS
AMENDED ON OCTOBER 31, 1978, BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2225, AFL-CIO (HEREINAFTER REFERRED TO AS THE
COMPLAINANT), AGAINST THE AIRCRAFT FIRE AND RESCUE DIVISION, AIR
OPERATIONS DEPARTMENT, NAVAL AIR STATION, NORFOLK, VIRGINIA (HEREINAFTER
REFERRED TO AS THE RESPONDENT), ALLEGING THAT THE RESPONDENT VIOLATED
SECTIONS 19(A)(1) AND (6) OF THE EXECUTIVE ORDER BY INSTITUTING A CHANGE
IN WORKSITE OF UNIT EMPLOYEES EMPLOYED AT THE NAVAL AIR STATION,
NORFOLK, VIRGINIA, WITHOUT PRIOR NEGOTIATION WITH THE COMPLAINANT OVER
IMPACT AND IMPLEMENTATION. A HEARING WAS HELD IN NORFOLK, VIRGINIA, AT
WHICH BOTH PARTIES WERE REPRESENTED AND AFFORDED THE OPPORTUNITY TO
PRESENT EVIDENCE, CROSS-EXAMINE ADVERSE WITNESSES, AND PRESENT ORAL
ARGUMENT ON THE ISSUES. POST-HEARING BRIEFS HAVE BEEN RECEIVED FROM THE
PARTIES AND DULY CONSIDERED.
STATEMENT OF THE CASE
COMPLAINANT IS THE EXCLUSIVE BARGAINING AGENT FOR A UNIT COMPOSED OF
ALL NON-SUPERVISORY, GRADED, CIVIL SERVICE EMPLOYEES ASSIGNED TO THE
AIRCRAFT FIRE AND RESCUE DIVISION, AIR OPERATIONS DEPARTMENT, NAVAL AIR
STATION, NORFOLK, VIRGINIA, THE PRIMARY FUNCTION OF WHICH IS TO PROVIDE
AIRCRAFT FIRE AND RESCUE SERVICES AT THE NAVAL AIR STATION.
AIRCRAFT OPERATIONS AT THE NAVAL AIR STATION INVOLVE BOTH FIXED-WING
AND ROTARY WING (HELICOPTERS) AIRCRAFT, WHICH UTILIZE AN AIRFIELD, KNOWN
AS CHAMBERS FIELD, AND A HELIPORT. PRIOR TO APRIL 3, 1978, AIRCRAFT
FIRE AND RESCUE SERVICES WERE PROVIDED AT BOTH LOCATIONS BY FIRE
FIGHTERS, REPRESENTED BY THE COMPLAINANT AS EXCLUSIVE BARGAINING AGENT,
WHO WERE STATIONED AT BUILDING LP-166, WHICH IS LOCATED IN CLOSE
PROXIMITY TO CHAMBERS FIELD. FIRE FIGHTING CREWS ASSIGNED TO COVER AIR
OPERATIONS AT THE HELIPORT, WHICH IS SEVERAL MILES DISTANT, WERE
DISPATCHED FROM BUILDING LP-166 AND REMAINED AT THE HELIPORT WHILE AIR
OPERATIONS WERE IN PROGRESS.
AS A RESULT OF AN INSPECTION CONDUCTED BETWEEN JUNE 1 AND JUNE 7,
1976, THE AREA FIRE MARSHAL, ATLANTIC DIVISION, NAVAL FACILITIES
ENGINEERING COMMAND, RECOMMENDED NUMEROUS CHANGES, INCLUDING THAT THE
HELIPORT BE DESIGNATED A CATEGORY 2 AIRFIELD, AND THAT "TWO MB-5 (CRASH
TRUCK) CREWS BE ASSIGNED TO THE HELIPORT DURING FLIGHT OPERATIONS
UTILIZING STRUCTURAL STATION #2 AS A CFR STATION FOR STANDBY ALERT
VEHICLE." /1/ RESPONDENT'S EXHIBIT 1.
NO OFFICIAL ACTION WAS TAKEN TO IMPLEMENT THE FIRE MARSHAL'S
RECOMMENDATION THAT AIRCRAFT CRASH/FIRE AND RESCUE CREWS UTILIZE
STRUCTURAL STATION #2 AS A BASE OF OPERATIONS WHILE ON STANDBY ALERT
STATUS AT THE HELIPORT, UNTIL LANGLEY JAMES, THE CRASH FIRE CHIEF,
NOTIFIED HIS PERSONNEL THAT EFFECTIVE APRIL 3, 1978, AIRCRAFT CRASH AND
RESCUE CREWS ASSIGNED TO DUTY AT THE HELIPORT WOULD SPEND THEIR STANDBY
TIME AT STRUCTURAL STATION #2. /2/ HOWEVER, SINCE SLEEPING QUARTERS,
AND EATING FACILITIES WERE NOT INITIALLY AVAILABLE AT STRUCTURAL STATION
#2 FOR THEIR USE, THE CREWS CONTINUED TO MAINTAIN QUARTERS AT BUILDING
LP-166 UNTIL ON OR ABOUT MAY 7, 1978, WHEN SUCH FACILITIES BECAME
AVAILABLE FOR THEM AT STRUCTURAL STATION #2. /3/
CHIEF JAMES TESTIFIED THAT HE KNEW IN 1976, THROUGH CONVERSATIONS
WITH HIS SUPERIORS AND THE CHIEF OF THE STRUCTURAL FIRE DEPARTMENT WHICH
TOOK PLACE SOMETIME AFTER RECEIVING THE FIRE MARSHAL'S RECOMMENDATIONS,
THAT EVENTUALLY AIRCRAFT CRASH AND RESCUE CREWS ASSIGNED TO THE HELIPORT
WOULD BE TRANSFERRED TO STRUCTURAL STATION #2; HOWEVER, SUCH A TRANSFER
COULD NOT BE IMPLEMENTED UNTIL MODIFICATIONS WERE MADE TO STRUCTURAL
STATION #1 TO ACCOMMODATE THE STRUCTURAL FIRE DEPARTMENT EQUIPMENT WHICH
WOULD HAVE TO BE REMOVED FROM STRUCTURAL STATION #2 TO MAKE ROOM FOR THE
AIRCRAFT CRASH AND RESCUE CREWS AND THEIR EQUIPMENT. CHIEF JAMES STATED
THAT HE RECEIVED THE FIRE MARSHAL'S REPORT AND RECOMMENDATIONS IN
AUGUST, 1976, AND THAT HE POSTED A COPY OF IT WHERE THE MEMBERS OF HIS
DEPARTMENT COULD READ IT, AND HELD SEVERAL MEETINGS WITH THEM DURING
WHICH THE RECOMMENDATIONS WERE DISCUSSED.
CHIEF JAMES ALSO RECALLED MEETINGS ON SEVERAL OCCASIONS WITH VARIOUS
UNION SHOP STEWARDS DURING WHICH THE FIRE MARSHAL'S RECOMMENDATIONS
WERE
DISCUSSED, INCLUDING A MEETING WITH VINCENT J. LISA, JR. WHO WAS THEN AN
ACTING UNION SHOP STEWARD, IN FEBRUARY, 1978, DURING WHICH HE WAS "SURE
I MENTIONED THE FACT THAT THE CHIEF, CHIEF BROADWAY WAS WORKING ON NO. 2
STATION, BUT DIDN'T HAVE A TIMEFRAME THAT HE'D BE ABLE TO MOVE OUT
BECAUSE THIS IS AN 85 FOOT AERIAL TRUCK THEY HAD TO MAKE ROOM TO GET
IN." TRANSCRIPT, PAGE 102. CHIEF JAMES ACKNOWLEDGED THAT HE DID NOT
INDICATE TO LISA THAT A DECISION HAD BEEN MADE TO USE STRUCTURAL STATION
NO. 2, AND THAT HE SOLICITED AND DISCUSSED RECOMMENDATIONS OFFERED BY
LISA CONCERNING OTHER LOCATIONS WHICH MIGHT BE SUITABLE.
WHEN HE RECEIVED NOTIFICATION FROM CHIEF BROADWAY ON OR ABOUT MARCH
28, 1978, THAT SPACE WAS AVAILABLE IN STRUCTURAL STATION NO. 2, CHIEF
JAMES TOOK IMMEDIATE MEASURES TO NOTIFY THE PERSONNEL UNDER HIS COMMAND
THAT THE HELIPORT CREWS WOULD BEGIN USING THAT LOCATION WHILE ON
STANDBY, EFFECTIVE APRIL 3, 1978. IT WAS CHIEF JAMES' OPINION THAT
ASSIGNMENT OF EMPLOYEES WAS NOT A MATTER WHICH MANAGEMENT WAS REQUIRED
TO NEGOTIATE, AND, IN ANY EVENT, THE UNION WAS GENERALLY AWARE THAT IT
WOULD BE NECESSARY TO RELOCATE THE STANDBY LOCATION FOR CREWS ASSIGNED
TO AIRCRAFT CRASH AND RESCUE DUTY AT THE HELIPORT, BUT THEY HAD NEVER
REQUESTED BARGAINING ON THE ISSUE. /4/ ACCORDING TO CHIEF JAMES, THE
FIRST NEGOTIATIONS CONCERNING THE MATTER WHICH THE UNION REQUESTED CAME
AFTER THE CHANGE HAD BEEN IMPLEMENTED, AND INVOLVED LIVING
ACCOMMODATIONS AT STRUCTURAL STATION NO. 2.
VINCENT J. LISA, JR., THE ACTING UNION SHOP STEWARD DURING MARCH AND
APRIL, 1978, TESTIFIED THAT HE FIRST LEARNED ON APRIL 4, 1978, THAT
HELIPORT CREWS WOULD BE ASSIGNED TO STRUCTURAL STATION NO. 2, ALTHOUGH
HE WAS GENERALLY AWARE OF THE REQUIREMENT TO RELOCATE THE HELIPORT CRASH
AND RESCUE CREWS FROM READING THE FIRE MARSHAL'S REPORT IN 1976. LISA
TESTIFIED THAT HE HAD MET WITH CHIEF JAMES APPROXIMATELY TWO WEEKS
PREVIOUSLY TO DISCUSS THE CHANGES WHICH WOULD HAVE TO BE MADE CONCERNING
THE HELIPORT CREWS, AT WHICH TIME HE WAS ASKED FOR AND MADE SEVERAL
RECOMMENDATIONS. CHIEF JAMES TOLD HIM THAT "(W)ELL, I DON'T KNOW WHAT
WE'RE GOING TO DO RIGHT NOW, BUT I WILL GET BACK WITH YOU LATER,
(TRANSCRIPT, PAGE 33); HOWEVER, HE DID NOT HAVE ANY FURTHER DISCUSSIONS
WITH CHIEF JAMES UNTIL AFTER THE ASSIGNMENT OF HELIPORT CREWS TO
STRUCTURAL STATION NO. 2 HAD BEEN IMPLEMENTED. LISA STATED THAT THE
FACILITIES INITIALLY PROVIDED FOR THE USE OF AIRCRAFT CRASH AND RESCUE
CREWS AT STRUCTURAL STATION NO. 2 WERE INADEQUATE, THAT THE FACILITY,
ITSELF, WAS IN VIOLATION OF SAFETY REGULATIONS, AND THERE WAS FRICTION
BETWEEN THE CRASH CREWS AND THE STRUCTURAL FIREMAN ASSIGNED TO THE
BUILDING. THESE AND OTHER ASSOCIATED PROBLEMS WERE THE SUBJECT OF
SEVERAL DISCUSSIONS BETWEEN THE UNION AND MANAGEMENT, AND MANY OF THE
PROBLEMS WERE RESOLVED, IN WHOLE OR IN PART. /5/
FINDINGS OF FACT
1. COMPLAINANT IS THE EXCLUSIVE BARGAINING AGENT FOR
NON-SUPERVISORY, GRADED, CIVIL SERVICE EMPLOYEES ASSIGNED TO THE
AIRCRAFT FIRE AND RESCUE DIVISION, AIR OPERATIONS DEPARTMENT, NAVAL AIR
STATION, NORFOLK, VIRGINIA, AND WAS SO AT ALL TIMES MATERIAL TO THIS
CASE.
2. AT ALL TIMES MATERIAL TO THIS CASE, AIRCRAFT CRASH AND RESCUE
PERSONNEL EMPLOYED BY THE RESPONDENT AS FIRE FIGHTERS HAVE PROVIDED
AIRCRAFT CRASH, FIRE, AND RESCUE SERVICES AT THE NORFOLK NAVAL AIR
STATION.
3. PRIOR TO ON OR ABOUT APRIL 3, 1978, ALL UNIT EMPLOYEES EMPLOYED
BY THE RESPONDENT TO PROVIDE SUCH SERVICES WERE QUARTERED IN BUILDING
LP-166, LOCATED IN CLOSE PROXIMITY TO CHAMBERS FIELD, WHICH IS USED FOR
FIXED WING AIRCRAFT OPERATIONS, AND SEVERAL MILES DISTANT FROM THE
HELIPORT, WHICH IS USED FOR HELICOPTER AIR OPERATIONS.
4. BASED UPON AN INSPECTION CONDUCTED BETWEEN JUNE 1 AND JUNE 7,
1976, THE AREA FIRE MARSHAL, ATLANTIC DIVISION, NAVAL FACILITIES
ENGINEERING COMMAND, RECOMMENDED THAT THE HELIPORT BE DESIGNATED A
CATEGORY 2 AIRFIELD, AND THAT CRASH AND RESCUE CREWS ASSIGNED TO
HELIPORT DUTY BE QUARTERED IN STRUCTURAL FIRE DEPARTMENT STATION NO. 2.
5. OFFICIALS OF THE RESPONDENT, INCLUDING CRASH FIRE CHIEF LANGLEY
JAMES, MADE THE DECISION SOMETIME IN THE LATTER PART OF 1976 TO RELOCATE
HELIPORT CRASH AND RESCUE CREWS TO STRUCTURAL STATION NO. 2 WHEN SPACE
IN THAT FACILITY BECAME AVAILABLE, AFTER ALTERATIONS WERE MADE TO OTHER
STRUCTURAL FIRE DEPARTMENT FACILITIES TO ACCOMMODATE THE STRUCTURAL FIRE
DEPARTMENT PERSONNEL AND EQUIPMENT WHICH WOULD HAVE TO BE RELOCATED
FROM
STRUCTURAL STATION NO. 2 TO MAKE ROOM FOR THE AIRCRAFT CRASH AND RESCUE
CREWS.
6. COPIES OF THE FIRE MARSHAL'S 1976 REPORT WERE MADE AVAILABLE FOR
PERSONNEL OF THE CRASH FIRE DEPARTMENT TO READ SOON AFTER THE REPORT WAS
RECEIVED BY CRASH FIRE CHIEF LANGLEY JAMES.
7. CRASH FIRE CHIEF JAMES MET WITH THE MEMBERS OF THE CRASH FIRE
DEPARTMENT ON SEVERAL OCCASIONS DURING THE 1976 AND LATER YEARS, AND
DISCUSSED GENERALLY THE CONTENTS OF THE FIRE MARSHAL'S 1976 REPORT AND
RECOMMENDATIONS.
8. SOMETIME IN MARCH, 1978, FIRE CHIEF JAMES HAD A MEETING WITH
ACTING UNION SHOP STEWARD VINCENT J. LISA, JR., DURING WHICH CHIEF JAMES
STATED THAT HE DID NOT KNOW WHAT CHANGES WOULD BE MADE CONCERNING THE
HELIPORT CREWS AND SOLICITED RECOMMENDATIONS FROM LISA.
9. ON OR ABOUT MARCH 28, 1978, CHIEF JAMES WAS NOTIFIED BY THE
STRUCTURAL FIRE DEPARTMENT CHIEF THAT SPACE WAS AVAILABLE FOR THE USE OF
HELIPORT CRASH AND RESCUE CREWS AND THEIR EQUIPMENT AT STRUCTURAL
STATION NO. 2, AND CONTEMPORANEOUSLY, CHIEF JAMES ISSUED ORDERS TO THE
PERSONNEL OF HIS DEPARTMENT THAT EFFECTIVE APRIL 3, 1978, HELIPORT CREWS
WOULD BEGIN USING STRUCTURAL STATION NO. 2 WHILE ON STANDBY.
10. AT NO TIME PRIOR TO ISSUING THE ORDER RELOCATING HELIPORT CREWS
TO STRUCTURAL STATION NO. 2 EFFECTIVE APRIL 3, 1978, DID CHIEF JAMES OR
ANY OFFICIALS OF THE RESPONDENT NOTIFY THE COMPLAINANT OF
NON-SUPERVISORY UNIT PERSONNEL, THAT A DECISION HAD BEEN MADE BY
MANAGEMENT CONCERNING EITHER THE LOCATION OF THE NEW WORKSITE TO WHICH
HELIPORT CRASH AND RESCUE CREWS WOULD BE ASSIGNED, OR WHEN THE CHANGE
WOULD TAKE PLACE.
11. AT NO TIME PRIOR TO THE EFFECTIVE DATE OF THE CHANGE DID THE
COMPLAINANT REQUEST BARGAINING ON THE IMPACT AND IMPLEMENTATION OF ANY
CHANGE IN WORKSITE INVOLVING UNIT PERSONNEL ASSIGNED TO HELIPORT DUTY.
DISCUSSION, CONCLUSIONS AND RECOMMENDATIONS
IN THIS PARTICULAR CASE, THE COMPLAINANT DOES NOT ARGUE THAT THE
RESPONDENT WAS OBLIGATED TO NEGOTIATE THE DECISION TO CHANGE THE
WORKSITE OF THE HELIPORT CREWS; RATHER, THE COMPLAINANT CONTENDS THAT
IT WAS ENTITLED TO NOTIFICATION OF THE PROPOSED CHANGE AND THE
OPPORTUNITY TO NEGOTIATE IMPACT AND IMPLEMENTATION. THE FAILURE OF THE
RESPONDENT TO NOTIFY IT OF THE PROPOSED CHANGE BEFORE THE CHANGE WAS
IMPLEMENTED, THE COMPLAINANT CONTENDS, EFFECTIVELY DENIED IT THE RIGHT
TO NEGOTIATE IMPACT AND IMPLEMENTATION, CONTRARY TO SECTIONS 19(A)(1)
AND (6) OF THE ORDER. THE RESPONDENT, ON THE OTHER HAND, IN ADDITION TO
ARGUING THAT IT WAS NOT OBLIGATED TO CONSULT WITH THE COMPLAINANT
CONCERNING THE DECISION TO ESTABLISH A PERMANENT WORKSITE IN CLOSE
PROXIMITY TO THE HELIPORT, CONTENDS THAT THE COMPLAINANT WAS WELL AWARE
OF THE PROPOSED CHANGE IN WATCH ASSIGNMENT, THAT MEETINGS WERE HELD BY
MANAGEMENT BETWEEN 1976 AND 1978 FOR THE PURPOSE OF KEEPING THE
COMPLAINANT'S MEMBERS INFORMED, AND, IN ANY EVENT, THE ONLY CHANGE WAS A
CHANGE IN THE PLACE WHERE FIRE FIGHTERS ASSIGNED TO HELIPORT DUTY WERE
REQUIRED TO SLEEP. THE RESPONDENT FURTHER CONTENDS THAT THE COMPLAINANT
HAD THE OBLIGATION TO REQUEST NEGOTIATIONS ON THE IMPACT AND
IMPLEMENTATION OF THAT DECISION, IF IT DESIRED THEM, BUT DID NOT DO SO,
AND THAT THE ISSUE OF THE QUALITY OF LIVING CONDITIONS AT STRUCTURAL
STATION NO. 2 WAS NOT RAISED IN THE COMPLAINT, AND, THEREFORE, IS BARRED
BY SECTION 203.2(A)(3) OF THE ASSISTANT SECRETARY'S REGULATIONS.
NOTWITHSTANDING THAT A PARTICULAR MANAGEMENT DECISION IS NOT
NEGOTIABLE UNDER SECTION 11(B) OR 12(B) OF THE ORDER, AN AGENCY MUST,
NEVERTHELESS, AFFORD AN EXCLUSIVE REPRESENTATIVE REASONABLE NOTICE AND
AN OPPORTUNITY TO BARGAIN WITH RESPECT TO THE IMPACT AND IMPLEMENTATION
OF THE DECISION, PRIOR TO ITS IMPLEMENTATION, WHEN SUCH DECISION EFFECTS
A CHANGE IN EXISTING PERSONNEL POLICIES AND PRACTICES OR WORKING
CONDITIONS OF MEMBERS OF THE BARGAINING UNIT, PROVIDED IT DOES NOT
INTERFERE WITH THE EXERCISE OF THE RESERVED RIGHTS THEMSELVES.
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, BRSI, NORTHEASTERN PROGRAM SERVICE CENTER, A/SLMR NO.
984(1978); U.S. CUSTOMS SERVICE, BROOKHAVEN SERVICE CENTER, 7 A/SLMR
255, A/SLMR NO. 814(1977). OR, AS SUMMARIZED IN THE DECISION OF THE
ACTING REGIONAL ADMINISTRATOR ON APRIL 4, 1977, IN U.S. DEPARTMENT OF
TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, CASE NO. 22-07742(CA),
AFFIRMED BY THE ASSISTANT SECRETARY OF LABOR ON NOVEMBER 11, 1977:
THE ASSISTANT SECRETARY, IN NUMEROUS PRECEDENTIAL DECISIONS, HAS
FIRMLY ESTABLISHED THE
PRINCIPLE THAT AN AGENCY OR ACTIVITY, WHICH IS A PARTY TO A
BARGAINING RELATIONSHIP WITH A
LABOR ORGANIZATION AS EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, IS
OBLIGATED UNDER SECTION
11(A) OF THE ORDER TO PROVIDE THAT LABOR ORGANIZATION WITH A
REASONABLE OPPORTUNITY TO
NEGOTIATE, TO THE EXTENT CONSONANT WITH LAW OR REGULATION, OVER THE
IMPACT ON UNIT EMPLOYEES
AND METHOD OF IMPLEMENTING ANY CHANGE WITH RESPECT TO PERSONNEL
POLICIES AND PRACTICES AND
MATTERS AFFECTING WORKING CONDITIONS, EVEN WHEN THE DECISION ITSELF
TO EFFECT SUCH A CHANGE IS
RESERVED TO MANAGEMENT AS NON-NEGOTIABLE UNDER SECTION 11(B) OR 12(B)
OF THE ORDER.
MOREOVER, THIS OBLIGATION TO NEGOTIATE IN GOOD FAITH, WHICH IS
IMPOSED BY SECTION 11(A) OF
THE ORDER, IS NOT MET UNLESS THE LABOR ORGANIZATION IS PROVIDED WITH
REASONABLE NOTICE OF THE
PROPOSED CHANGE PRIOR TO ITS IMPLEMENTATION AND EFFECTUATION; AND AN
AGENCY FAILING TO SO
NOTIFY THE LABOR ORGANIZATION IN ADVANCE OF EFFECTING A CHANGE IS
DEEMED TO BE IN DEROGATION
OF ITS BARGAINING OBLIGATIONS AND IN VIOLATION OF SECTIONS 19(A)(1)
AND (6) OF THE ORDER.
HOWEVER, IT IS EQUALLY WELL ESTABLISHED IN PRECEDENT DECISIONS OF THE
ASSISTANT SECRETARY
AND THE FEDERAL LABOR RELATIONS COUNCIL THAT ONCE AN AGENCY PROVIDES
THE EXCLUSIVE
REPRESENTATIVE WITH REASONABLE NOTICE OF A PLANNED CHANGE, ITS
OBLIGATION UNDER SECTION 11(A)
OF THE ORDER IS FULLY DISCHARGED AND NO FURTHER OBLIGATION TO BARGAIN
OVER THE CHANGE ARISES
UNTIL THE EXCLUSIVE REPRESENTATIVE AFFIRMATIVELY ACTS TO MAKE A
TIMELY REQUEST FOR
NEGOTIATION.
THERE IS NO QUESTION BUT THAT THE CHANGE OF WORKSITE FOR HELIPORT
CREWS EFFECTED A CHANGE IN WORKING CONDITIONS OF UNIT EMPLOYEES, IN THIS
INSTANCE THE FIRE FIGHTERS EMPLOYED BY THE RESPONDENT. THE CHANGE
DIRECTLY AFFECTED THE PLACE WHERE THE HELIPORT CREWS SPENT THEIR 24 HOUR
TOURS OF DUTY, WHEN NOT ACTUALLY AT THE HELIPORT DURING AIR OPERATIONS,
INCLUDING THE PLACE WHERE THEY ATE, SLEPT, RELAXED WHEN ON STANDBY,
TRAINED, AND MAINTAINED THEIR EQUIPMENT. CLEARLY, THE CHANGE OF
WORKSITE TO STRUCTURAL STATION NO. 2 WAS ONE AS TO WHICH THE RESPONDENT
WAS REQUIRED BY SECTION 11(A) OF THE ORDER TO AFFORD THE COMPLAINANT THE
OPPORTUNITY TO BARGAIN WITH RESPECT TO IMPACT AND IMPLEMENTATION. THE
QUESTION WHICH REMAINS, THEREFORE, IS THAT OF WHETHER OR NOT THE
COMPLAINANT HAD REASONABLE NOTICE OF THE PROPOSED CHANGE, SO THAT ITS
FAILURE TO REQUEST BARGAINING IN A TIMELY FASHION AMOUNTS TO A WAIVER OF
THE RIGHT. /6/
UPON CONSIDERATION OF THE ENTIRE RECORD, INCLUDING ALL TESTIMONY AND
EVIDENTIARY EXHIBITS, I CONCLUDE, AND FIND, THAT NO STEPS WERE TAKEN BY
THE RESPONDENT PRIOR TO IMPLEMENTATION TO NOTIFY THE COMPLAINANT THAT
MANAGEMENT PROPOSED TO CHANGE THE WORKSITE OF CRASH AND RESCUE CREWS
ASSIGNED TO HELIPORT DUTY FROM BUILDING LP-166 TO STRUCTURAL STATION NO.
2, EITHER UPON A DATE CERTAIN, OR UPON SOME AS YET UNSPECIFIED FUTURE
DATE. I FURTHER CONCLUDE, AND FIND, THAT ALTHOUGH THE MEMBERS OF LOCAL
2225, THE COMPLAINANT, WERE GENERALLY AWARE SINCE ISSUANCE OF THE FIRE
MARSHAL'S REPORT AND RECOMMENDATIONS IN 1976 THAT SOME CHANGE IN
WORKSITE OF HELIPORT CREWS PROBABLY WOULD BE MADE, AND THAT THE FIRE
MARSHAL HAD RECOMMENDED STRUCTURAL STATION NO. 2, THEY DID NOT KNOW IN
ADVANCE OF THE RESPONDENT'S ORDER IMPLEMENTING THE CHANGE IN WORKSITE OF
HELIPORT CREWS FROM BUILDING LP-166 TO STRUCTURAL STATION NO. 2
EFFECTIVE APRIL 3, 1978, EITHER THE LOCATION SELECTED BY THE RESPONDENT
OR WHEN THE WORKSITE WOULD BE CHANGED.
THE PROPOSAL TO CHANGE THE WORKSITE OF HELIPORT CREWS WAS ONE WHICH
WAS LEFT PENDING FOR ALMOST TWO YEARS, DURING WHICH IT WAS THE SUBJECT
OF A NUMBER OF DISCUSSIONS BETWEEN UNION AND MANAGEMENT REPRESENTATIVES,
BUT AS TO WHICH MANAGEMENT HAD SEEMINGLY MADE NO DECISION. /7/ THE
COMPLAINANT HAD NO REASON TO BELIEVE THAT A DECISION HAD BEEN MADE BY
MANAGEMENT, PRIOR TO THE TIME WHEN IT WAS OFFICIALLY ANNOUNCED AS PART
OF AN IMPLEMENTATION ORDER ON OR ABOUT APRIL 3, 1978, OR THAT WHEN
MANAGEMENT DID MAKE A DECISION, IT WOULD NECESSARILY ADOPT THE FIRE
MARSHAL'S RECOMMENDATION. INDEED, CHIEF JAMES' STATEMENTS TO THE ACTING
UNION SHOP STEWARD IN MARCH, 1978, APPROXIMATELY TWO WEEKS BEFORE HE
ISSUED THE IMPLEMENTATION ORDER, SERVED TO LULL THE COMPLAINANT INTO A
FALSE SENSE OF SECURITY THAT NO DECISION HAD BEEN MADE, WHEN, IN FACT,
CHIEF JAMES HAD KNOWN SINCE 1976 THAT, BARRING SOME UNEXPECTED AND
UNANTICIPATED EVENT, THE HELIPORT CREWS WOULD BE RELOCATED TO STRUCTURAL
STATION NO. 2 AS SOON AS SPACE BECAME AVAILABLE. UNDER THESE
CIRCUMSTANCES, THE COMPLAINANT DID NOT HAVE REASONABLE ADVANCE NOTICE OF
THE PROPOSED CHANGE, SUCH AS WOULD TRIGGER THE REQUIREMENT THAT IT
REQUEST BARGAINING ON IMPACT AND IMPLEMENTATION. IN THE ABSENCE OF ANY
KNOWLEDGE, AS OPPOSED TO MERE SPECULATION OR CONJECTURE, OF WHERE
MANAGEMENT PLANNED TO RELOCATE THE WORKSITE OF HELIPORT CREWS, THERE
WAS
NOTHING OVER WHICH TO BARGAIN CONCERNING IMPACT AND IMPLEMENTATION, AND
NO DUTY UPON THE COMPLAINANT TO REQUEST BARGAINING. /8/
THE ISSUE HERE IS THAT OF WHETHER THE RESPONDENT DENIED TO THE
COMPLAINANT THE RIGHT TO BARGAIN OVER IMPACT AND IMPLEMENTATION, NOT ONE
OF WHETHER SOME ISSUES AFFECTING IMPACT AND IMPLEMENTATION, BUT NOT
OTHERS, WERE PROPERLY RAISED BY THE COMPLAINANT DURING PROCEEDINGS
BELOW. WHERE, AS HERE, THE EVIDENCE SHOWS THAT THE EXCLUSIVE
REPRESENTATIVE EFFECTIVELY WAS DENIED ITS RIGHT, PURSUANT TO SECTION
11(A) OF THE ORDER, TO BARGAIN OVER IMPACT AND IMPLEMENTATION OF A
MANAGEMENT DECISION AFFECTING WORKING CONDITIONS, IT IS IRRELEVANT AND
IMMATERIAL TO ARGUE, AS DOES THE RESPONDENT, THAT THE COMPLAINANT FAILED
TO RAISED SPECIFIC ISSUE CONCERNING IMPACT AND IMPLEMENTATION IN ITS
COMPLAINT. CF., SOCIAL SECURITY ADMINISTRATION, BUREAU OF HEARINGS AND
APPEALS, A/SLMR NO. 1176,(1978), IN WHICH IT WAS HELD THAT THERE IS NO
REQUIREMENT THAT AN EXCLUSIVE REPRESENTATIVE'S REQUEST FOR BARGAINING ON
IMPACT SET FORTH ITS PROPOSALS.
ACCORDINGLY, I CONCLUDE, AND FIND, THAT THE RESPONDENT VIOLATED
SECTIONS 19(A)(1) AND (6) OF THE ORDER BY FAILING TO GIVE SPECIFIC
ADVANCE NOTICE TO THE COMPLAINANT OF A CHANGE AFFECTING WORKING
CONDITIONS AND THE WORKSITE OF HELIPORT CREWS, AND AFFORDING THE
COMPLAINANT OF A CHANGE AFFECTING WORKING CONDITIONS AND THE WORKSITE OF
HELIPORT CREWS, AND AFFORDING THE COMPLAINANT A REASONABLE OPPORTUNITY
TO REQUEST BARGAINING OVER ISSUES INVOLVING THE IMPACT AND
IMPLEMENTATION OF THE CHANGE.
RECOMMENDED ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, 29
C.F.R. 203.26(B), AND SECTION 2400.2 OF THE TRANSITION RULES AND
REGULATIONS, 5 C.F.R. 2400.2(1979), THE AUTHORITY HEREBY ORDERS THAT THE
AIRCRAFT FIRE AND RESCUE DIVISION, AIR OPERATIONS DEPARTMENT, NAVAL AIR
STATION, NORFOLK, VIRGINIA, SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING ANY FUTURE CHANGE IN THE PLACE OF DUTY OR WORKSITE,
INVOLVING EMPLOYEES REPRESENTED EXCLUSIVELY BY THE AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, LOCAL 2225, AFL-CIO, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES, WITHOUT FIRST NOTIFYING THE EXCLUSIVE
REPRESENTATIVE OF THE PROPOSED CHANGE, AND AFFORDING IT THE OPPORTUNITY
TO MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON
THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN IMPLEMENTING THE CHANGE
OF WORKSITE, AND ON THE IMPACT SUCH CHANGE OF WORKSITE WILL HAVE ON
ADVERSELY AFFECTED UNIT EMPLOYEES.
(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, OR REFUSING TO CONSULT, CONFER, OR
NEGOTIATE WITH THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES AS REQUIRED
BY THE ORDER.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) UPON REQUEST, MEET AND CONFER WITH THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2225, AFL-CIO, TO THE EXTENT CONSONANT WITH
LAW AND REGULATIONS, CONCERNING THE PROCEDURES WHICH MANAGEMENT
OBSERVED
IN IMPLEMENTING A CHANGE OF PLACE OF DUTY OR WORKSITE FROM BUILDING
LP-166 TO STRUCTURAL STATION NO. 2, NORFOLK NAVAL AIR STATION, NORFOLK,
VIRGINIA, INVOLVING ITS EMPLOYEES, AND THE IMPACT SUCH CHANGE OF
WORKSITE HAD ON ADVERSELY AFFECTED UNIT EMPLOYEES.
(B) POST AT ALL AIRCRAFT FIRE AND RESCUE DIVISION, AIR OPERATONS
DEPARTMENT, NAVAL AIR STATION, NORFOLK, VIRGINIA, FACILITIES AND
INSTALLATIONS COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS
TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY
SHALL BE SIGNED BY THE DIRECTOR OF THE AIRCRAFT FIRE AND RESCUE
DIVISION, AIR OPERATIONS DEPARTMENT, NAVAL AIR STATION, NORFOLK,
VIRGINIA, 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) PURSUANT TO SECTION 203.27 OF THE REGULATIONS NOTIFY THE
AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO
THE STEPS TAKEN IN COMPLIANCE HEREWITH.
WILLIAM A. POPE, II
ADMINISTRATIVE LAW JUDGE
DATED: 17 SEP 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 EXECUTIVE ORDER 11491, AS
AMENDED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INSTITUTE ANY FUTURE CHANGE IN THE PLACE OF DUTY OR
WORKSITE, INVOLVING EMPLOYEES REPRESENTED EXCLUSIVELY BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2225, AFL-CIO, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, WITHOUT FIRST NOTIFYING THE
EXCLUSIVE REPRESENTATIVE OF THE PROPOSED CHANGE, AND AFFORDING IT THE
OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN
IMPLEMENTING THE CHANGE OF WORKSITE, AND ON THE IMPACT SUCH CHANGE OF
WORKSITE WILL HAVE ON ADVERSELY AFFECTED UNIT EMPLOYEES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED, OR REFUSE TO CONSULT, CONFER, OR
NEGOTIATE WITH THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES AS REQUIRED
BY THE ORDER.
WE WILL UPON REQUEST, MEET AND CONFER WITH THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2225, AFL-CIO, TO THE EXTENT CONSONANT WITH
LAW AND REGULATIONS, CONCERNING THE PROCEDURES WHICH MANAGEMENT
OBSERVED
IN IMPLEMENTING A CHANGE OF PLACE OF DUTY OR WORKSITE FROM BUILDING
LP-166 TO STRUCTURAL STATION NO. 2, NORFOLK NAVAL AIR STATION, NORFOLK,
VIRGINIA, INVOLVING OUR EMPLOYEES, AND THE IMPACT SUCH CHANGE OF
WORKSITE HAD ON ADVERSELY AFFECTED UNIT EMPLOYEES.
. . . .
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR SIXTY (60) CONSECUTIVE DAYS FROM
THE DATE OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR FOR FEDERAL LABOR RELATIONS AUTHORITY WHOSE ADDRESS IS
: ROOM 416, 1111 20TH STREET, NW., WASHINGTON, D.C. 20036.
/0/ 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. 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.
/1/ RESPONSIBILITY FOR PROVIDING FIRE PROTECTION SERVICES AT THE
NORFOLK NAVAL STATION AND THE NAVAL AIR STATION IS DIVIDED BETWEEN THE
RESPONDENT AND THE NAVAL BASE STRUCTURAL FIRE DEPARTMENT, WHICH OPERATES
UNDER A SEPARATE CHAIN OF COMMAND, AND MAINTAINS AND OPERATES ITS OWN
EQUIPMENT AND PHYSICAL FACILITIES, INCLUDING STRUCTURAL STATION #2,
WHICH IS LOCATED IN CLOSE PROXIMITY TO THE HELIPORT.
/2/ AIRCRAFT CRASH AND RESCUE CREWS ARE ON DUTY FOR 24 HOUR PERIODS,
DIVIDED INTO EIGHT HOURS OF WORK, EIGHT HOURS ON STANDBY, OR WAITING TO
BE ASSIGNED WORK, AND EIGHT HOURS FOR EATING AND SLEEPING.
/3/ SINCE MAY 7, 1978, AIRCRAFT CRASH AND RESCUE CREWS HAVE BEEN
ASSIGNED TO HELIPORT DUTY ON A 30 DAY ROTATING BASIS, AND WHILE ON
HELIPORT DUTY, THEY ARE PROVIDED LIVING QUARTERS IN STRUCTURAL STATION
#2.
/4/ JOHN JOSEPH, WHO WAS CRASH FIRE CAPTAIN AT THE TIME OF THE
HEARING, TESTIFIED THAT HE WAS A UNION SHIP STEWARD IN 1976, AND THAT IN
THE SUMMER OF 1976, HE LEARNED FROM READING THE FIRE MARSHAL'S REPORT
AND IN A MEETING BETWEEN THE FIRE CHIEF AND UNION PERSONNEL THAT
HELIPORT CRASH AND RESCUE CREWS WOULD BE RELOCATED EVENTUALLY, BUT HE
DID NOT KNOW WHEN, AND HE DID NOT REQUEST BARGAINING ON THE PROPOSED
CHANGE.
/5/ THE WITNESSES TESTIFYING DURING THE HEARING GENERALLY AGREED THAT
LIVING CONDITIONS FOR THE CRASH CREWS ASSIGNED TO STRUCTURAL STATION NO.
2 HAVE IMPROVED, ALTHOUGH COMPLAINTS PERSIST.
/6/ WHERE THE EXCLUSIVE REPRESENTATIVE HAS NOT BEEN AFFORDED
REASONABLE NOTICE OF A PROPOSED CHANGE, THERE IS NO REQUIREMENT THAT A
REQUEST FOR BARGAINING BE MADE AFTER THE FACT TO ESTABLISH A VIOLATION.
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, AUSTIN SERVICE
CENTER, A/SLMR NO. 1142(1978).
/7/ AS LATE AS TWO WEEKS BEFORE A DECISION WAS ANNOUNCED AND
IMPLEMENTED, FIRE CHIEF JAMES SOLICITED RECOMMENDATIONS FROM THE ACTING
UNION SHIP STEWARD AND INDICATED HE DID NOT KNOW HOW THE MATTER WOULD BE
RESOLVED.
/8/ FIRE CHIEF JAMES LEARNED ON OR ABOUT MARCH 28, 1978, THAT SPACE
WAS AVAILABLE FOR HIS USE IN STRUCTURAL STATION NO. 2, AND HE ORDERED
THE CHANGE OF WORKSITE OF HELIPORT CREWS, EFFECTIVE ON APRIL 3, 1978;
HOWEVER, THE EVIDENCE OF RECORD INDICATES THAT THE CREWS INVOLVED WERE
NOT NOTIFIED OF THE CHANGE UNTIL THEY REPORTED FOR WORK ON APRIL 3 AND
APRIL 4, 1978. THUS, THERE IS NO EVIDENCE THAT THE COMPLAINANT HAD
ACTUAL NOTICE OF THE CHANGE UNTIL AT LEAST APRIL 3, 1978, MUCH LESS THAT
IT HAD REASONABLE NOTICE SUFFICIENTLY IN ADVANCE TO REQUEST BARGAINING
ON IMPACT AND IMPLEMENTATION. THE CHANGE OF WORKSITE WAS EFFECTIVE
APRIL 3, 1978, AND IT IS OF NO CONSEQUENCE THAT THE CREWS DID NOT BEGIN
SLEEPING AT STRUCTURAL STATION NO. 2 UNTIL ON OR ABOUT MAY 7, 1978,
SINCE IT WAS CONTEMPLATED BY MANAGEMENT FROM THE START THAT HELIPORT
CREWS WOULD SPEND THEIR ENTIRE 24 HOUR TOURS OF DUTY AT STRUCTURAL
STATION NO. 2, AND ONLY THE ABSENCE OF BEDS UNTIL MAY 7, 1978, DELAYED
FULL IMPLEMENTATION OF THE PLAN.