The Adjutant General's Office, Puerto Rico Air National Guard (Respondent) and National Federation of Federal Employees, Local 1665 (INDEPENDENT) (Complainant)
[ v03 p343 ]
03:0343(55)CA
The decision of the Authority follows:
3 FLRA No. 55
THE ADJUTANT GENERAL'S OFFICE
PUERTO RICO AIR NATIONAL GUARD
Respondent
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1665 (INDEPENDENT)
Complainant
Assistant Secretary
Case No. 37-01985(CA)
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER, IN THE SUBJECT CASE, FINDING THAT THE RESPONDENT HAD VIOLATED
SECS. 19(A)(1) AND 19 (A)(6) OF EXECUTIVE ORDER 11491, AS AMENDED, BY
ITS ACTIONS IN UTILIZING NEW PROCEDURES TO EFFECTUATE A REDUCTION IN
FORCE WITHOUT FIRST NOTIFYING THE COMPLAINANT, THE EXCLUSIVE
REPRESENTATIVE OF AFFECTED EMPLOYEES, AND AFFORDING IT THE OPPORTUNITY
TO BARGAIN OVER THE IMPLEMENTATION AND IMPACT OF THE REDUCTION ON THE
AFFECTED EMPLOYEES. THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE
RESPONDENT BE ORDERED TO (1) CEASE AND DESIST FROM IMPLEMENTING A
REDUCTION IN FORCE INVOLVING EMPLOYEES REPRESENTED BY THE COMPLAINANT
WITHOUT AFFORDING IT AN OPPORTUNITY TO REQUEST NEGOTIATIONS CONCERNING
THE IMPACT AND IMPLEMENTATION OF SUCH A REDUCTION, AND (2) TO TAKE
CERTAIN AFFIRMATIVE ACTIONS. THE RESPONDENT FILED EXCEPTIONS AND
SUPPORTING BRIEF TO 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 SEC. 304 OF REORGANIZATION PLAN NO.
2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS IMPLEMENTED BY
SEC. 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 SEC. 7135(B) OF THE
FEDERAL SERVICE LABOR MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SEC. 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SEC. 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 ENTIRE RECORD, INCLUDING THE
RESPONDENT'S EXCEPTIONS AND SUPPORTING BRIEF, THE AUTHORITY HEREBY
ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATION, AS MODIFIED BELOW.
IN A MEMORANDUM DATED MARCH 21, 1977, THE NATIONAL GUARD BUREAU, THE
NATIONAL HEADQUARTERS OF THE NATIONAL GUARD, DIRECTED THE RESPONDENT TO
CONDUCT A REDUCTION IN FORCE (RIF) ACCORDING TO THE PROCEDURES SPECIFIED
IN THE RECENTLY PREPARED TECHNICIAN PERSONNEL MANUEL 351 (TPM 351). THE
RESPONDENT RECEIVED THE MEMORANDUM ON MARCH 31, THE SAME DATE ON WHICH
TPM 351 BECAME EFFECTIVE. THE COMPLAINANT, THROUGH ITS PRESIDENT AND
OTHER UNION OFFICIALS, WAS INFORMED OF THE RIF ORDER AND PROVIDED A COPY
OF TPM 351 ON APRIL 12, AT A MEETING WITH THE RESPONDENT'S TECHNICIAN
PERSONNEL OFFICER. THE PROCEDURES TO BE USED TO IMPLEMENT THE RIF WERE
NOT DISCUSSED AT THAT TIME BECAUSE THE REPRESENTATIVES OF BOTH PARTIES
WERE UNFAMILIAR WITH TPM 351.
TECHNICIAN PERSONNEL PAMPHLET 910 ("TPP 910") CONTAINED THE
PROCEDURES THAT THE RESPONDENT FOLLOWED IN IMPLEMENTING RIF'S BETWEEN
MARCH 1973 AND MARCH 1977. SEVERAL PROCEDURES SPECIFIED IN TPM 351
DIFFERED SIGNIFICANTLY FROM THE PROCEDURES SET FORTH IN TPP 910.
THE RESPONDENT MET WITH ITS TECHNICIANS ON APRIL 13 AND 14 TO NOTIFY
THEM OF THE RIF ORDER AND TO GIVE A GENERAL EXPLANATION OF THE RIF
PROCEDURES. THE COMPLAINANT WAS NOT NOTIFIED OF THESE MEETINGS. THE
COMPLAINANT'S FIRST VICE PRESIDENT, ANGEL PARRA, ATTENDED ONE OF THE
MEETINGS IN HIS ROLE AS A TECHNICIAN, NOT AS A UNION REPRESENTATIVE. HE
AND SEVERAL OTHER EMPLOYEES ASKED QUESTIONS ABOUT THE RIF, BUT MOST OF
THE QUESTIONS WERE NOT ANSWERED BECAUSE THE RESPONDENT'S
REPRESENTATIVES
WERE NOT FAMILIAR WITH TPM 351.
THE PARTIES MET WITH FEDERAL AVIATION ADMINISTRATION (FAA) OFFICIALS
ON APRIL 22 TO DISCUSS THE POSSIBILITY OF THE FAA HIRING EMPLOYEES WHO
WOULD BE SEPARATED BY THE RIF. WHEN THE DISCUSSION ENDED, THE
COMPLAINANT DIRECTED TWO REQUESTS TO GENERAL LLENSA, THE ADJUTANT
GENERAL. THE COMPLAINANT BELIEVED THAT MILITARY APPRAISALS WOULD NOT BE
FAIR AND, THEREFORE, ASKED THAT THEY NOT BE USED. THE COMPLAINANT ALSO
REQUESTED THAT EMPLOYEES RECEIVE IDENTICAL APPRAISAL SCORES, MAKING
SENIORITY A PRIMARY FACTOR IN RANKING EMPLOYEES. IN RESPONSE, GENERAL
LLENSA STATED THAT THE REQUESTS WOULD BE CONSIDERED AND THAT HE WOULD
GIVE MANAGEMENT'S RESPONSE LATER. EIGHTEEN EMPLOYEES RECEIVED RIF
NOTICES ON MAY 25 AND WERE SEPARATED ON JULY 31. NEITHER LLENSA NOR ANY
OTHER MANAGEMENT OFFICIAL HAS GIVEN THE COMPLAINANT THE RESPONSE TO ITS
REQUESTS OF APRIL 22, 1977.
IN REACHING HIS CONCLUSION, THE ADMINISTRATIVE LAW JUDGE FOUND THAT
THE RESPONDENT UTILIZED NEW PROCEDURES TO IMPLEMENT A RIF WITHOUT FIRST
NOTIFYING AND AFFORDING THE COMPLAINANT AN OPPORTUNITY TO BARGAIN ABOUT
THE IMPLEMENTATION OR IMPACT OF THE RIF. ALTHOUGH THE ADMINISTRATIVE
LAW JUDGE FOUND THAT THE COMPLAINANT HAD NOT MADE A SPECIFIC REQUEST TO
BARGAIN, HE FURTHER FOUND THAT SUCH REQUEST WAS UNNECESSARY BECAUSE THE
COMPLAINANT WAS CONFRONTED WITH A FAIT ACCOMPLI ON APRIL 12 WHEN
INFORMED THAT THE NEW RIF PROCEDURES ALREADY HAD BECOME EFFECTIVE. IN
ADDITION, HE FOUND THAT NEGOTIATIONS HAD NOT TAKEN PLACE AT THE APRIL
MEETINGS; THAT THE MEETINGS OF APRIL 12, 13, AND 14 WERE EXCLUSIVELY
INFORMATIONAL IN CHARACTER, AND THE MEETING OF APRIL 22 WAS MERELY A
CONFERENCE WITH FAA OFFICIALS.
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THE AUTHORITY
CONCLUDES THAT THE RESPONDENT VIOLATED SEC. 19(A)(1) AND (6) OF THE
ORDER; HOWEVER, THE AUTHORITY REACHES THIS CONCLUSION FOR DIFFERENT
REASONS. CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THE AUTHORITY FINDS
THAT THE REQUEST MADE BY THE COMPLAINANT AT THE MEETING OF APRIL 22 WAS,
IN EFFECT, A GENERAL REQUEST TO BARGAIN. ALTHOUGH THE SPECIFIC
PROPOSALS CLEARLY WERE NOT NEGOTIABLE BECAUSE THEY CONFLICTED WITH TPM
351, A REGULATION FOR WHICH A COMPELLING NEED EXISTED (SEE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2953 AFL-CIO, AND NEBRASKA
NATIONAL GUARD, FLRC NO. 77A-106, 6 FLRC 182(1978)), THE NATURE OF THE
REQUESTS DID NOT ALTER THE RESPONDENT'S OBLIGATION TO RESPOND AND
BARGAIN IN GOOD FAITH. IN THE AUTHORITY'S VIEW, THE ACTIVITY'S
STATEMENT THAT A RESPONSE TO THE REQUESTS WOULD BE GIVEN LATER CREATED
THE IMPRESSION THAT THE RESPONDENT WAS WILLING TO CONSIDER THE PROPOSALS
CONCERNING THE IMPLEMENTATION AND IMPACT OF THE RIF. THE ACTIVITY'S
FAILURE TO RESPOND, AS PROMISED, PRECLUDED THE COMPLAINANT FROM
CONSIDERING THE OPTION OF PRESENTING ALTERNATIVE PROPOSALS. UNDER THESE
CIRCUMSTANCES, THE AUTHORITY CONCLUDES THAT THE RESPONDENT DID NOT
FULFILL ITS DUTY TO BARGAIN AS TO THE IMPACT AND IMPLEMENTATION OF ITS
DECISION ON UNIT EMPLOYEES AFTER THE COMPLAINANT REQUESTED BARGAINING,
AND THUS, VIOLATED SEC. 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS
AMENDED.
AS THE RESPONDENT DID NOT HAVE AN OBLIGATION TO MEET AND CONFER WITH
THE COMPLAINANT CONCERNING THE PROVISIONS OF TPM 351, THE AUTHORITY DOES
NOT FIND THAT A REMEDIAL ORDER IS WARRANTED WHICH WOULD REQUIRE THAT THE
RESPONDENT'S ACTION IN CONDUCTING A RIF PURSUANT TO THE PROVISIONS OF
TPM 351 BE RESCINDED. RATHER, THE AUTHORITY WILL REQUIRE THAT THE
RESPONDENT CEASE AND DESIST FROM ENGAGING IN THE FUTURE IN THE CONDUCT
FOUND VIOLATIVE OF THE ORDER AND REQUIRE THAT, UPON REQUEST, IT AFFORD
THE COMPLAINANT THE OPPORTUNITY TO BARGAIN CONCERNING THE IMPACT AND
IMPLEMENTATION OF THE RIF ACTION AS IT AFFECTED THOSE EMPLOYEES
REPRESENTED EXCLUSIVELY BY THE COMPLAINANT. /1/
ORDER
PURSUANT TO 2400.2 OF THE RULES AND REGULATIONS OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND SEC. 7135 OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY ORDERS THAT THE
ADJUTANT GENERAL'S OFFICE OF THE PUERTO RICO AIR NATIONAL GUARD SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING A REDUCTION IN FORCE PROCEDURE UNDER TPM 351, OR ANY
OTHER REGULATION, INVOLVING EMPLOYEES REPRESENTED EXCLUSIVELY BY THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1665 (INDEPENDENT),
WITHOUT FIRST NOTIFYING THE EXCLUSIVE REPRESENTATIVE AND AFFORDING IT
THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND
REGULATION, CONCERNING THE IMPLEMENTATION OF SUCH PROCEDURE AND ITS
IMPACT ON AFFECTED 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 NOW AVAILABLE TO THEM UNDER THE
CIVIL SERVICE REFORM ACT.
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 NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1665 (INDEPENDENT), TO THE EXTENT CONSONANT
WITH LAW AND REGULATIONS, CONCERNING THE IMPACT AND IMPLEMENTATION OF
THE 1977 REDUCTION IN FORCE ON EMPLOYEES AT THE 140TH AIRCRAFT AND
WARNING SQUADRON.
(B) POST AT THE ADJUTANT GENERAL'S OFFICES, PUERTO RICO AIR NATIONAL
GUARD, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE
FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. THE FORMS SHALL BE
SIGNED BY THE COMMANDING OFFICER UPON RECEIPT AND POSTED FOR 60 DAYS
THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO
EMPLOYEES CUSTOMARILY ARE POSTED. THE COMMANDING OFFICER SHALL TAKE
REASONABLE STEPS TO INSURE THAT THE NOTICES ARE NOT REMOVED, ALTERED,
DEFACED, OR COVERED BY 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 WITH THE ORDER.
ISSUED, WASHINGTON, D.C., JUNE 3, 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 THE TITLE 5 OF THE UNITED
STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT IMPLEMENT A REDUCTION IN FORCE PROCEDURE INVOLVING
EMPLOYEES REPRESENTED BY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1665 (INDEPENDENT), WITHOUT FIRST AFFORDING SUCH REPRESENTATIVE
THE OPPORTUNITY TO MEET AND CONFER CONCERNING THE IMPLEMENTATION AND
IMPACT OF SUCH PROCEDURE.
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.
WE WILL, UPON REQUEST BY THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1665 (INDEPENDENT), MEET AND CONFER, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, CONCERNING THE IMPACT OF THE 1977
REDUCTION IN FORCE ON EMPLOYEES AT THE 140TH AIRCRAFT CONTROL AND
WARNING SQUADRON.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
ROOM 241, 26 FEDERAL PLAZA, NEW YORK, NEW YORK, 10007, AND WHOSE PHONE
NUMBER IS (212) 264-4934.
JAIME A. RODRIGUEZ LECOEUR, ESQ.
PUERTO RICO AIR NATIONAL GUARD
P. O. BOX 3786
SAN JUAN, PUERTO RICO 00904
FOR THE RESPONDENT
JANET COOPER, ESQ.
GENERAL COUNSEL
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES
1016 16TH STREET, N.W.
WASHINGTON, D.C. 20036
FOR THE COMPLAINANT
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON MAY 15, 1979
BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, NEW
YORK REGION, A HEARING WAS HELD BEFORE THE UNDERSIGNED ON JUNE 20 AND
21, 1979 AT SAN JUAN, PUERTO RICO.
THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREIN CALLED THE ORDER). A COMPLAINT WAS FILED ON JANUARY 16, 1978 BY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, INDEPENDENT LOCAL 1665 (HEREIN
CALLED COMPLAINANT) AGAINST THE ADJUTANT GENERAL'S OFFICE, PUERTO RICO
AIR NATIONAL GUARD (HEREIN CALLED RESPONDENT). IT ALLEGED THAT
RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY (A)
CHANGING ITS PROCEDURES FOR A REDUCTION IN FORCE (RIF) IN APRIL, 1977
WITHOUT CONSULTING OR NEGOTIATING WITH COMPLAINANT, (B) FAILING AND
REFUSING TO BARGAIN OVER THE IMPACT OF THE ONGOING REDUCTION IN FORCE.
RESPONDENT SUBMITTED A RESPONSE TO THE COMPLAINT, DATED JANUARY 30,
1978, DENYING THE COMMISSION OF ANY UNFAIR LABOR PRACTICE. IT AVERRED
THAT THE REDUCTION IN FORCE WAS ACCOMPLISHED BY STRICT ADHERENCE TO THE
PROCEDURES SET FORTH IN A DIRECTIVE (TPM 351) FROM THE NATIONAL GUARD
BUREAU, AND THAT IT MET AND DISCUSSED THE RIF PROCEDURES WITH
COMPLAINANT UNION.
BOTH PARTIES WERE REPRESENTED AT THE HEARING, AND WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. THEREAFTER, THE 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 OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN COMPLAINANT UNION HAS BEEN, AND
STILL IS, THE COLLECTIVE BARGAINING REPRESENTATIVE OF ALL TECHNICIANS OF
THE PUERTO RICO AIR NATIONAL GUARD.
2. SINCE 1970 BOTH COMPLAINANT AND RESPONDENT HAVE BEEN PARTIES TO A
COLLECTIVE BARGAINING AGREEMENT COVERING SAID TECHNICIANS. THE SAID
AGREEMENT PROVIDES, INTER ALIA, AS FOLLOWS:
ARTICLE 11.4 REDUCTION IN FORCE: MANAGEMENT SHALL INFORM THE
TECHNICIANS ORGANIZATION
BEFORE IT INSTITUTES ANY REDUCTION-IN-FORCE ACTION AFFECTING UNIT
TECHNICIANS. IT IS AGREED
THAT IN REHIRING FROM THE RE-EMPLOYMENT PRIORITY LIST, TECHNICIANS
WILL BE REHIRED IN THE
INVERSE ORDER FORM WHICH LAID OFF.
ARTICLE 15-- SUBJECTS FOR CONSULTATION AND NEGOTIATION: A. MATTERS
APPROPRIATE FOR
NEGOTIATION UNDER THIS AGREEMENT SHALL CONSIST OF, BUT ARE NOT
CONFINED TO THE FOLLOWING:
. . . (8) APPLICATION OF PROCEDURES RELATING TO PROMOTION,
DISCIPLINARY ACTIONS, APPEALS,
REDUCTION IN FORCE AND TECHNICIAN APPRAISAL.
3. BY A MEMORANDUM DATED MARCH 21, 1977 /2/ THE NATIONAL GUARD
BUREAU, WASHINGTON, D.C. ORDERED THE RESPONDENT TO INSTITUTE A REDUCTION
IN FORCE. THE RIF INVOLVED THE 140TH AIRCRAFT CONTROL AND WARNING
SQUADRON (140TH ACW SQ.) WHOSE EMPLOYEES WERE STATIONED AT PUNTA SALINAS
AND PUNTA BORINQUEN.
4. THE AFORESAID MEMORANDUM ADVISED THE PUERTO RICO AIR NATIONAL
GUARD (PRANG) THAT THE RIF PROCEDURES WILL BE GOVERNED BY TPM 351 WHICH
BECAME EFFECTIVE ON MARCH 31.
5. PRIOR TO MARCH 31 THE RIF PROCEDURES WERE CONTROLLED OR REGULATED
BY TPP 910. THE SYSTEM FOR ESTABLISHING A RETENTION REGISTER WAS BASED
ON A 100 POINT SCALE IN THE EVALUATION, AND A MILITARY APPRAISAL FORM
WAS UTILIZED IN RATING THE EMPLOYEES. UNDER TPP 910 ALL VACANCIES IN
PRANG WERE FROZEN DURING A REDUCTION IN FORCE.
6. SEVERAL CHANGES WERE AFFECTED AS A RESULT OF TPM 351 WHICH
REPLACED THE OLD PROCEDURE. UNDER THE NEW DIRECTIVE (A) THE MILITARY
APPRAISAL FORM WAS CHANGED, (B) THE POINT SYSTEM WAS ALTERED SO AS TO BE
BASED ON A 20 POINT SCALE IN THE EVALUATION, AND (C) ONLY THE VACANCIES
IN THE AREA INVOLVED IN THE RIF, THE 140TH ACW SQ. IN THIS INSTANCE,
WERE FROZEN. UNDER THIS SYSTEM LONGEVITY WOULD NOT BE A FACTOR IN
SELECTING THOSE TO BE SEPARATED. FURTHER, THOSE EMPLOYEES INCLUDED IN
THE RIF WOULD NOT HAVE, UNDER THE TPM 351 PROCEDURE, THE SAME
OPPORTUNITIES TO FILL VACANCIES AS PREVAILED UNDER TPP 910.
7. ON APRIL 12 COLONEL FARIA, CHIEF OF TPO FOR RESPONDENT MET WITH
DIEGO NIEVES, AND ANGEL PARRA, PRESIDENT AND VICE-PRESIDENT RESPECTIVELY
OF THE COMPLAINANT UNION, AS WELL AS WITH SEVERAL OTHER UNION OFFICIALS.
FARIA INFORMED THEM THAT A REDUCTION IN FORCE WOULD TAKE PLACE, AND
THAT IT WOULD BE GOVERNED BY THE PROCEDURES SET FORTH IN TPM 351. HE
STATED HE WAS UNFAMILIAR WITH THE PROVISIONS BUT GAVE THE UNION
OFFICIALS A COPY OF THE NEW PROCEDURE. NEITHER THE EMPLOYER NOR THE
UNION OFFICERS REVIEWED THE CONTENTS OF TPM 351 AT THE MEETING.
8. ON APRIL 13 AND 14 MANAGEMENT MET WITH THE TECHNICIANS OF THE
140TH ACW SQ. AT THE TWO LOCATIONS. IT DISTRIBUTED A NOTICE OF THE RIF
TO THE EMPLOYEES AND EXPLAINED THE PROCEDURE TO BE FOLLOWED. QUESTIONS
WERE POSED BY SOME OF THOSE IN ATTENDANCE, BUT RESPONDENT'S OFFICIALS
WERE UNABLE TO ANSWER MANY OF THEM. ALTHOUGH PARRA WAS IN ATTENDANCE,
THE UNION WAS NOT NOTIFIED OF THE MEETING IN ADVANCE THEREOF.
9. SUBSEQUENTLY THE COMPLAINANT LEARNED THAT A REPRESENTATIVE OF FAA
WAS VISITING PUERTO RICO, AND IT REQUESTED A MEETING WITH MANAGEMENT TO
DISCUSS THE POSSIBILITY OF FAA HIRING SOME OF THE EMPLOYEES WHO WOULD BE
SEPARATED BY THE REDUCTION IN FORCE. IN ADDITION TO DISCUSSING THIS
MATTER, THE UNION OFFICIALS ALSO REQUESTED OF GENERAL LLENSA THAT THE
MILITARY APPRAISALS NOT BE UTILIZED. COMPLAINANT WAS CONCERNED THAT THE
APPRAISAL, WHICH WOULD HAVE A SIGNIFICANT IMPACT UNDER THE POINT SYSTEM,
WOULD BE UNFAIR AND LIKELY TO BE BASED ON BIAS. IT DESIRED THAT THE
APPRAISAL BE MADE WHEN NO RIF WAS IN THE OFFING. THE UNION PROPOSED
THAT ALL THE EMPLOYEES RECEIVE THE SAME APPRAISAL POINTS SO AS TO PUT A
PREMIUM ON LENGTH OF SERVICE.
GENERAL LLENSA STATED AT THE MEETING THAT HE WOULD "GET BACK" TO THE
UNION REPRESENTATIVES REGARDING MANAGEMENT'S REACTIONS TO THE PROPOSAL.
HOWEVER, RESPONDENT DID NOT REPLY TO THE UNION; THE MILITARY APPRAISALS
WERE MADE AND A RETENTION REGISTER WAS PREPARED.
10. IN EARLY MAY COMPLAINANT REQUESTED IT BE GIVEN COPIES OF THE
APPRAISALS AND THE RETENTION REGISTER. THIS REQUEST WAS DENIED
INITIALLY. ON MAY 25 SPECIFIC NOTICES WERE GIVEN OF THE RIF TO 18
EMPLOYEES WHO WERE APPRISED THAT THEY WOULD BE SEPARATED ON JULY 31.
/3/ SEVERAL WEEKS LATER MANAGEMENT FURNISHED COMPLAINANT WITH COPIES OF
THE APPRAISALS AND RETENTION REGISTER.
11. THE RIF, WHICH INVOLVED 18 OR 47 INDIVIDUALS IN THE 140TH ACW
SQUADRON, RESULTED IN A SEPARATION OF THREE UNION STEWARDS. A FIRST
VICE-PRESIDENT OF THE UNION WAS NOT TERMINATED. EACH STEWARD WHO WAS
TERMINATED FROM HIS JOB HAD MORE THAN 10 YEARS OF SERVICE AND WAS SENIOR
IN SERVICE TO NON-STEWARDS WHO WERE RETAINED. OF THE 18 INDIVIDUALS
SEPARATED BY THE RIF, FIVE PERSONS WERE NOT EMPLOYED AT THE DATE OF THE
HEARING HEREIN.
CONCLUSIONS
IN ALLEGING THAT RESPONDENT VIOLATED SECTIONS 19(A)(1) AND (6) OF THE
ORDER, THE COMPLAINANT MAKES SEVERAL CONTENTIONS IN THIS REGARD. IT IS
CONTENDED THAT MANAGEMENT (1) UNILATERALLY CHANGED ITS PROCEDURES IN
EFFECTING THE RIF AT PRANG, AND FAILED TO BARGAIN WITH COMPLAINANT RE
THE IMPACT AND IMPLEMENTATION THEREOF; (2) FAILED TO PROVIDE
INFORMATION (MILITARY APPRAISALS AND RETENTION REGISTER) TO THE UNION
WHICH WAS NECESSARY TO FULFILL THE BARGAINING REPRESENTATIVE'S
RESPONSIBILITIES; (3) CONDUCTED FORMAL DISCUSSIONS ON APRIL 13 AND 14,
1977 WITH GROUPS OF UNIT EMPLOYEES RE THE FORTHCOMING RIF, BUT FAILED TO
NOTIFY THE COMPLAINANT AND GIVE IT AN OPPORTUNITY TO BE PRESENT THEREAT;
(4) MANIPULATED THE RIF SO AS TO SEPARATE THE UNION STEWARDS OF THE
140TH ACW SQUADRON.
WHILE THE COMPLAINANT MAKES SEVERAL ALLEGATIONS IN ITS BRIEF AS TO
CONDUCT BY THE EMPLOYER WHICH IT DEEMED ILLEGAL, NOTE IS TAKEN BY THE
UNDERSIGNED THAT THE COMPLAINT HEREIN IS LIMITED IN SCOPE. THE AVERMENT
IN THE COMPLAINT CONCERNS ITSELF WITH THE UNILATERAL CHANGES MADE BY
RESPONDENT IN THE PROCEDURES FOLLOWED TO ACCOMPLISH THE REDUCTION IN
FORCE AT PRANG. IT IS ALLEGED THAT MANAGEMENT FAILED TO BARGAIN RE THE
IMPACT AND IMPLEMENTATION OF SUCH PROCEDURES. HOWEVER, NO ALLEGATION IS
FOUND IN THE COMPLAINT IN RESPECT TO RESPONDENT'S (A) FAILURE TO FURNISH
INFORMATION REQUESTED BY THE UNION; (B) MEETING WITH EMPLOYEES IN A
FORMAL DISCUSSION BUT FAILING TO NOTIFYING COMPLAINANT OR GIVE IT AN
OPPORTUNITY TO BE PRESENT; (C) EFFECTING THE RIF IN ORDER TO TERMINATE
THE UNION STEWARDS.
PAST DECISIONS UNDER THE ORDER REFLECT THAT UNLESS A COMPLAINT
CONTAINS A PARTICULAR ALLEGATION OF MISCONDUCT, NO FINDING WILL BE MADE
IN REGARD THERETO. AS SET FORTH IN PART 203 OF THE REGULATIONS
GOVERNING THIS PROCEEDING, THE MATTERS TO BE LITIGATED MUST BE ALLEGED
IN THE COMPLAINT. IF THEY ARE NOT SO RAISED, THE MERITS THEREOF WILL
NOT BE CONSIDERED DURING A HEARING OR PASSED UPON THEREAFTER. FAA,
WILLIAM R. HOBBY AIRPORT TRAFFIC CONTROL TOWER, ET. AL. A/SLMR NO. 1039;
NAVAL WEAPONS STATION, CONCORD, CALIFORNIA, A/SLMR NO. 1020.
ACCORDINGLY, AND IN VIEW OF THE FACT THAT THE COMPLAINT HEREIN IS
CONFINED TO ALLEGATION REGARDING THE UNILATERAL CHANGE IN PROCEDURES
ADOPTED BY RESPONDENT IN EFFECTUATING ITS RIF, THE UNDERSIGNED WILL
RESTRICT HIS DECISION TO A DETERMINATION OF THIS ISSUE. AS TO THE OTHER
CONTENTIONS RAISED BY COMPLAINANT, AS AFORESAID, THE MERITS THEREOF WILL
NOT BE PASSED UPON BY THE UNDERSIGNED NOR WILL A RECOMMENDATION BE MADE
IN REGARD THERETO.
REFUSAL TO BARGAIN RE IMPACT AND IMPLEMENTATION OF
REDUCTION IN FORCE
IT IS NOW WELL ESTABLISHED IN THE PUBLIC SECTOR THAT AN EMPLOYER,
WHILE IT MAY PROPERLY REDUCE ITS FORCE, MUST MEET AND CONFER WITH THE
BARGAINING AGENT CONCERNING THE IMPLEMENTATION OF THE RIF AND ITS IMPACT
UPON AFFECTED EMPLOYEES. ENVIRONMENTAL PROTECTION AGENCY, REGION IV,
A/SLMR NO. 999. FURTHER, ANY CHANGES BY MANAGEMENT IN WORKING
CONDITIONS, SUCH AS REASSIGNMENTS OR A REVIEW SYSTEM, REQUIRE THAT THE
UNION AGENT BE NOTIFIED THEREOF AND AFFORDED AN OPPORTUNITY TO BARGAIN
OVER THE IMPLEMENTATION AND IMPACT OF SUCH CHANGE. DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE, AUSTIN SERVICE CENTER, AUSTIN,
TEXAS, A/SLMR NO. 1142, DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
SERVICE, FRESNO SERVICE CENTER, A/SLMR NO. 983.
IN THE CASE OF BAR RESPONDENT INSISTS IT FULLY COMPLIED WITH ITS
OBLIGATIONS IN THIS REGARD. THUS IT ARGUES THAT MANAGEMENT DULY
INFORMED THE UNION OF THE RIF AND MET WITH COMPLAINANT'S REPRESENTATIVE
TO DISCUSS THE MATTER IMMEDIATELY. RESPONDENT CONTENDS IT FURNISHED THE
BARGAINING REPRESENTATIVE A COPY OF THE TPM 351 WHICH GOVERNED THE
REDUCTION IN FORCE; THAT IT LATER MET WITH THE UNION OFFICIALS TO
CONSIDER POSSIBLE RELOCATION OF PERSONNEL WITHIN THE FAA; AND THAT THE
RIF PROCEDURES, AS WELL AS BENEFITS, WERE EXPLAINED BY MANAGEMENT AT
SEVERAL MEETINGS. DESPITE THE FOREGOING, I AM PERSUADED THAT
RESPONDENT'S ACTIONS BELIED ANY EFFORTS TO BARGAIN OVER THE PROCEDURES
FOR IMPLEMENTING THE RIF AS WELL AS THE IMPACT UPON ADVERSELY AFFECTED
EMPLOYEES. IN REACHING THIS CONCLUSION, I RELY UPON THE FOLLOWING:
(A) THE NEW REGULATION (TPM 351) WHICH GOVERNED THE REDUCTION IN
FORCE BECAME EFFECTIVE ON MARCH 31. THUS, THE PROCEDURES WERE OPERATIVE
PRIOR TO APRIL 12, THE DATE WHEN MANAGEMENT INFORMED COMPLAINANT OF THE
IMPENDING RIF AND TPM 351. UNDER THESE CIRCUMSTANCES THE UNION WAS
AFFORDED LITTLE, IF ANY, OPPORTUNITY TO BARGAIN RE THE NEW PROCEDURE.
ALTHOUGH THE PARTIES MET ON APRIL 12 AND RESPONDENT FURNISHED
COMPLAINANT WITH A COPY OF THE REGULATION, NO INPUT BY THE UNION COULD
HAVE BEEN MEANINGFUL SINCE THE ADOPTION OF TPM 351 WAS ALREADY A FAIT
ACCOMPLI. AS JUDGE HALPERN STATED IN DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, FRESNO SERVICE CENTER, A/SLMR NO. 983:
" . . . IN ORDER THAT THE UNION BE GIVEN A MEANINGFUL OPPORTUNITY TO
CONSULT AND CONFER ON
IMPACT ISSUES, IT WOULD HAVE TO BE INFORMED OF THE ACTION
SUFFICIENTLY IN ADVANCE OF
IMPLEMENTATION TO ALLOW FOR THE PREPARATION OF PROPOSAL AND THE GOOD
FAITH EXCHANGE OF VIEWS
CONTEMPLATED BY THE ORDER."
AS INDICATED IN THE CITED CASE, THE RIGHT TO BARGAIN WOULD BE
MEANINGLESS UNLESS THE UNION WAS ADVISED OF THE PROCEDURES FOR
IMPLEMENTATION IN SUFFICIENT TIME TO CONSIDER THEM AND BARGAIN THEREON.
IN THE INSTANT CASE MANAGEMENT INFORMED COMPLAINANT THAT TPM 351 WOULD
CONTROL THE RIF-- AND THERE WAS NO ATTEMPT TO ELICIT THE UNION'S VIEWS
CONCERNING THIS NEW PROCEDURE, NOR TO EXCHANGE VIEWS WITH RESPECT
THERETO. AS SUCH, I CONCLUDE NO MEANINGFUL OPPORTUNITY WAS AFFORDED
COMPLAINANT TO BARGAIN AS TO EITHER ITS IMPLEMENTATION OR IMPACT UPON
EMPLOYEES. /4/ SEE COMMUNITY SERVICES ADMINISTRATION, A/SLMR NO. 913.
(2) THE RIF PROCEDURES WERE, PRIOR TO APRIL 1977, GOVERNED BY TPP 910
AND PRANG. SIGNIFICANT CHANGES REGARDING A REDUCTION IN FORCE WERE
IMPOSED BY TPM 351. THESE INVOLVED THE EVALUATION POINT SYSTEM, THE
FORMS TO BE UTILIZED, AND THE AREAS FROZEN AT PRANG DURING A RIF FOR
FILLING VACANCIES. THE INSTITUTIONS OF CHANGES RE PERSONNEL PRACTICES
BY MANAGEMENT REQUIRE, UNDER THE ORDER, THAT SUCH CHANGES BE NEGOTIATED
WITH THE BARGAINING AGENT AS TO THIS IMPLEMENTATION AND IMPACT UPON
EMPLOYEES. SEE DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
FRESNO SERVICE CENTER, SUPRA. AT NONE OF THE MEETINGS CONDUCTED BY
RESPONDENT WAS ANY ATTEMPT MADE TO BARGAIN IN SUCH RESPECTS. MANAGEMENT
SIMPLY INFORMED THE UNION AND THE EMPLOYEES THAT NEW PROCEDURES WERE
OPERATIVE AS TO THE RIF. AS THE RECORD REFLECTS, THE CHANGES IN
PROCEDURES AS TO THE REDUCTION IN FORCE WERE MADE UNILATERALLY, AND NO
INPUT FROM THE BARGAINING REPRESENTATIVE WAS SOUGHT OR ENCOURAGED.
(3) WHILE RESPONDENT MET WITH THE UNION AND ITS EMPLOYEES TO EXPLAIN
THAT THE RIF WOULD OCCUR TO BE GOVERNED BY TPM 351, THOSE MEETINGS FELL
SHORT OF BARGAINING RE IMPLEMENTATION AND IMPACT AS MANDATED UNDER THE
ORDER. THE MEETINGS ON APRIL 13 AND 14 WERE DESIGNED SOLELY TO EXPLAIN
TO THE EMPLOYEES THAT THE RIF WOULD BE GOVERNED BY THE NEW REGULATION.
ALTHOUGH QUESTIONS WERE POSED BY THOSE IN ATTENDANCE, NO EFFORT WAS MADE
BY THE EMPLOYER TO DISCUSS WITH UNION REPRESENTATIVE PARRA THE
PROCEDURAL CHANGES. MOREOVER, AT THE MEETING ON APRIL 22 THE UNION
RAISED SEVERAL CONCERNS RE THE APPRAISAL. MANAGEMENT AGREED TO CONSIDER
THEM AND REPLY THERETO. IT NEVER DID SO, NOR DID IT COMMUNICATE WITH
COMPLAINANT RE THE PROBLEMS RAISED BY THE UNION. AT THAT MEETING
DISCUSSIONS CENTERED UPON HAVING THE FAA ABSORB SOME OF THOSE AFFECTED
BY THE SEPARATION. THE PROCEDURES TO BE FOLLOWED WERE NOT DISCUSSED,
NOR DID MANAGEMENT ITSELF BARGAIN OVER THE IMPACT UPON THOSE EMPLOYEES
ADVERSELY AFFECTED. THOSE MEETINGS, AS I VIEW THE RECORD, WERE NOT
DESIGNED TO MEET AND CONFER WITH THE UNION RE THE PROCEDURES OR IMPACT
OF THE RIF. THE MEETING ON APRIL 22 WAS HELD AT THE INSTANCE OF
COMPLAINANT AND WAS, IN TRUTH, A CONFERENCE WITH FAA OFFICIALS. NO
BARGAINING OCCURRED AT ANY OF THE SESSIONS RE THE METHOD OF SELECTION OF
THE IMPACT OF THE RIF UPON THE TECHNICIANS.
IN VIEW OF THE FOREGOING, I CONCLUDE THAT RESPONDENT DID NOT MEET AND
CONFER WITH COMPLAINANT HEREIN RE THE IMPLEMENTATION OF TPM 351, WHICH
GOVERNED THE RIF OF EMPLOYEES AT THE 140TH ACW SQUADRON AT PRANG, AS
WELL AS THE IMPACT OF THE RIF UPON ADVERSELY AFFECTED EMPLOYEES.
ACCORDINGLY, I FIND THAT RESPONDENT THEREBY VIOLATED SECTIONS 19(A)(1)
AND (6) OF THE ORDER.
RECOMMENDATION
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT PROHIBITED BY
SECTIONS 19(A)(1) AND (6) OF THE ORDER, I RECOMMEND THAT THE FEDERAL
LABOR RELATIONS AUTHORITY ADOPT THE FOLLOWING ORDER WHICH IS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ORDER.
ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS, THE FEDERAL LABOR RELATIONS
AUTHORITY ORDERS THAT THE ADJUTANT GENERAL'S OFFICE, PUERTO RICO AIR
NATIONAL GUARD, SHALL:
1. CEASE AND DESIST FROM:
A) INSTITUTING A REDUCTION IN FORCE PROCEDURE UNDER TPM 351, OR ANY
OTHER REGULATION,
INVOLVING EMPLOYEES REPRESENTED EXCLUSIVELY BY THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES,
INDEPENDENT, LOCAL 1665,WITHOUT FIRST NOTIFYING THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES,
INDEPENDENT, LOCAL 1665, AND AFFORDING IT THE OPPORTUNITY TO MEET AND
CONFER, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, CONCERNING THE IMPLEMENTATION OF
SUCH PROCEDURE AND ITS
IMPACT ON ADVERSELY AFFECTED 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.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED.
A) RESCIND REGULATION TPM 351 WHICH PROCEDURE MANAGEMENT FOLLOWED IN
THE 1977 REDUCTION IN FORCE OF THE EMPLOYEES AT 140TH AIRCRAFT CONTROL
AND WARNING SQUADRON, AND REINSTATE TPP 910 AS THE PROCEDURE TO GOVERN
REDUCTION IN FORCE AT PRANG.
(B) REAPPRAISE AND REEVALUATE, UNDER TPP 910, ALL EMPLOYEES AT THE
140TH AIRCRAFT CONTROL AND WARNING SQUADRON, WHO WERE INVOLVED IN THE
1977 REDUCTION IN FORCE, TO DETERMINE WHICH EMPLOYEES WOULD BE PROPERLY
SEPARATED IN THE SAID REDUCTION IN FORCE.
C) UPON REQUEST, MEET AND CONFER WITH THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, INDEPENDENT, LOCAL 1665, TO THE EXTENT CONSONANT WITH
LAW AND REGULATIONS, CONCERNING THE PROCEDURES WHICH MANAGEMENT
FOLLOWED
UNDER TPM 351 IN REACHING ITS DECISION AS TO WHO SHOULD BE SEPARATED IN
THE 1977 REDUCTION IN FORCE OF THE EMPLOYEES AT THE 140TH AIRCRAFT
CONTROL AND WARNING SQUADRON, AND AS TO THE IMPACT THE SAID REDUCTION IN
FORCE HAD ON ADVERSELY AFFECTED EMPLOYEES.
D) IF, FOLLOWING NEGOTIATION WITH THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, INDEPENDENT, LOCAL 1665, IN ACCORDANCE WITH PARAGRAPH 2(C)
ABOVE, IT IS DETERMINED THAT ANY EMPLOYEES WAS ADVERSELY AFFECTED BY THE
PROCEDURES FOLLOWED BY MANAGEMENT UNDER TPM 351 IN THE 1977 REDUCTION IN
FORCE OF EMPLOYEES AT THE 140TH AIRCRAFT CONTROL AND WARNING SQUADRON,
SUCH EMPLOYEE SHALL BE MADE WHOLE, INCLUDING REIMBURSEMENT OF ANY LOSS
OF MONIES OCCASIONED THEREBY, CONSISTENT WITH APPLICABLE LAWS,
REGULATIONS, AND DECISIONS OF THE COMPTROLLER GENERAL.
E) NOTIFY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, INDEPENDENT,
LOCAL 1665 OF ANY INTENDED REDUCTION IN FORCE PROCEDURE AND AFFORD SUCH
REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, CONCERNING THE IMPLEMENTATION OF
SUCH PROCEDURE AND ITS IMPACT ON ADVERSELY AFFECTED EMPLOYEES.
F) POST AT THE ADJUTANT GENERAL'S OFFICES, PUERTO RICO NATIONAL
GUARD, 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 COMMANDING OFFICER 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 COMMANDING OFFICER
SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL.
G) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, 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.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: 5 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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT UNILATERALLY INSTITUTE A NEW REDUCTION IN FORCE PROCEDURE
INVOLVING EMPLOYEES REPRESENTED EXCLUSIVELY BY THE NATIONAL FEDERATION
OF FEDERAL EMPLOYEES, INDEPENDENT, LOCAL 1665, WITHOUT FIRST AFFORDING
SUCH REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER CONCERNING THE
IMPLEMENTATION AND IMPACT OF SUCH PROCEDURE.
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.
WE WILL RESCIND REGULATION TPM 351 GOVERNING THE PROCEDURE FOR
REDUCTION IN FORCE OF EMPLOYEES AT PRANG, AND REINSTATE TPP 910 AS THE
PROCEDURE FOR EVALUATING AND APPRAISING OUR EMPLOYEES TO DETERMINE THOSE
INDIVIDUALS ATTACHED TO THE 140TH AIRCRAFT CONTROL AND WARNING SQUADRON
WHO WOULD BE AFFECTED BY THE 1977 REDUCTION IN FORCE.
WE WILL RE-EVALUATE AND REAPPRAISE UNDER TPP 910 OUR EMPLOYEES WHO
WERE ATTACHED TO THE 140TH AIRCRAFT CONTROL AND WARNING SQUADRON AND
WERE INVOLVED IN THE 1977 REDUCTION IN FORCE TO DETERMINE, IN ACCORDANCE
WITH THE PROCEDURES SET FORTH IN TPP 910, WHICH EMPLOYEES SHOULD HAVE
BEEN SEPARATED IN THE 1977 REDUCTION IN FORCE.
WE WILL, UPON REQUEST BY THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, INDEPENDENT, LOCAL 1665, MEET AND CONFER, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, CONCERNING THE PROCEDURE WHICH
MANAGEMENT FOLLOWED UNDER TPM 351 IN REACHING ITS DECISION AS TO WHO
SHOULD BE SEPARATED IN THE 1977 REDUCTION IN FORCE OF EMPLOYEES AT THE
140TH AIRCRAFT CONTROL AND WARNING SQUADRON, AND AS TO THE IMPACT SUCH
REDUCTION IN FORCE HAD UPON ADVERSELY AFFECTED EMPLOYEES.
WE WILL, FOLLOWING NEGOTIATIONS WITH THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, INDEPENDENT, LOCAL 1665, MAKE WHOLE ANY EMPLOYEE WHO
IS DETERMINED TO HAVE BEEN ADVERSELY AFFECTED BY THE PROCEDURES FOLLOWED
BY MANAGEMENT UNDER TPM 351 IN THE 1977 REDUCTION IN FORCE OF EMPLOYEES
AT THE 140TH AIRCRAFT CONTROL AND WARNING SQUADRON, INCLUDING
REIMBURSEMENT FOR ANY LOSS OF MONIES OCCASIONED THEREBY, CONSISTENT WITH
APPLICABLE LAW, REGULATIONS AND DECISIONS OF THE COMPTROLLER GENERAL.
. . . .
AGENCY OR ACTIVITY
DATED: . . . BY: . . .
(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY WHOSE ADDRESS IS
ROOM 1751, 26 FEDERAL PLAZA, NEW YORK, N.Y. 10007.
/1/ IN CONFORMITY WITH SEC. 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/ ALL DATES HEREINAFTER MENTIONED ARE IN 1977 UNLESS OTHERWISE
INDICATED.
/3/ THE RIF WAS IN PROGRESS DURING JUNE.
/4/ IT DOES NOT APPEAR THAT THE UNION HEREIN MADE A SPECIFIC REQUEST
TO BARGAIN ON IMPACT AND IMPLEMENTATION. HOWEVER, WHERE MANAGEMENT HAS
UNILATERALLY MADE CHANGES IN PERSONNEL POLICIES, AS IT DID HERE IN
ADOPTING TPM 351, IT IS NOT NECESSARY FOR THE BARGAINING REPRESENTATIVE
TO REQUEST BARGAINING AFTER THE FACT. DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, AUSTIN SERVICE CENTER, AUSTIN, TEXAS, A/SLMR
NO. 1142.