United States Air Force, Air Force Logistics Command, Aerospace Guidance and Metrology Center, Newark, Ohio (Respondent) and American Federation of Government Employees, Local 2221, AFL-CIO (Charging Party)
[ v04 p512 ]
04:0512(70)CA
The decision of the Authority follows:
4 FLRA No. 70
UNITED STATES AIR FORCE,
AIR FORCE LOGISTICS COMMAND,
AEROSPACE GUIDANCE AND METROLOGY
CENTER, NEWARK, OHIO
Respondent
and
LOCAL 2221, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
Case No. 5-CA-157
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD NOT
ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT AND
RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
THEREAFTER, BOTH THE GENERAL COUNSEL AND THE UNION FILED EXCEPTIONS TO
THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER, AND
SUPPORTING BRIEFS, AND THE RESPONDENT FILED AN OPPOSITION TO THE
EXCEPTIONS OF THE GENERAL COUNSEL AND THE UNION.
THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135), 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 THIS
CASE, INCLUDING THE EXCEPTIONS AND SUPPORTING BRIEFS OF THE GENERAL
COUNSEL AND THE UNION AND THE RESPONDENT'S OPPOSITION THERETO, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS /1/ AND RECOMMENDATION TO THE EXTENT CONSISTENT HEREWITH.
THE THRUST OF THE COMPLAINT HEREIN IS THAT THE RESPONDENT VIOLATED
SECTION 7116(A)(1) AND (5) OF THE STATUTE BY UNILATERALLY IMPLEMENTING A
REORGANIZATION INVOLVING THE RESPONDENT'S DIRECTORATE OF METROLOGY. THE
RESPONDENT ARGUES AMONG OTHER THINGS, THAT THE EXCLUSIVE REPRESENTATIVE
HAD TIMELY PRIOR NOTICE OF THE PROPOSED REORGANIZATION DUE TO THE
PRESENCE OF UNION STEWARD PRICE AT AN EMPLOYEE MEETING ANNOUNCING THE
REORGANIZATION A WEEK BEFORE IT WAS TO BE IMPLEMENTED, AND THAT IT COULD
HAVE REQUESTED BARGAINING ON THAT BASIS. THE GENERAL COUNSEL AND THE
CHARGING PARTY ARGUED THAT PROPER NOTICE WAS NOT GIVEN TO THE UNION AS
PRICE WAS PRESENT ONLY AS AN EMPLOYEE AND NOT AS A UNION OFFICIAL.
THE ADMINISTRATIVE LAW JUDGE DETERMINED THAT UNION STEWARD PRICE WAS
AN APPROPRIATE INDIVIDUAL TO RECEIVE NOTICE ON BEHALF OF THE UNION. HE
FURTHER DETERMINED THAT PRICE'S PRESENCE AT THE STAFF MEETING, ALBEIT AS
AN EMPLOYEE, AND HIS TESTIMONY THAT HE DECIDED NOT TO SEEK BARGAINING
BECAUSE HE CONSIDERED THE REORGANIZATION TO THIS TIME TO HAVE NO IMPACT,
CONSTITUTED A REASONABLE BASIS UPON WHICH TO CONCLUDE THE UNION HAD
SUFFICIENT NOTICE OF THE REORGANIZATION. ACCORDINGLY, HE RECOMMENDED
THE COMPLAINT BE DISMISSED ON THE GROUNDS THE UNION HAD SUFFICIENT
NOTICE AND FAILED TO REQUEST BARGAINING.
SECTION 7103(12) OF THE STATUTE DEFINES COLLECTIVE BARGAINING IN
TERMS OF THE "MUTUAL OBLIGATION" OF THE PARTIES TO CONSULT AND BARGAIN
IN GOOD FAITH. /2/ THE GOAL OF BALANCED, MUTUAL RESPONSIBILITY ON THE
PART OF THE PARTIES IS ALSO STRESSED IN THE LEGISLATIVE HISTORY OF THE
STATUTE. /3/ THUS, THE COLLECTIVE BARGAINING RELATIONSHIP ENVISAGED BY
THE STATUTE REQUIRES THAT EACH PARTY HAVE THE ABILITY TO FUNCTION AS AN
EQUAL PARTNER WITHIN THE RELATIONSHIP. IT FOLLOWS THAT EACH PARTY
SHOULD THEREFORE DEAL WITH THE OTHER WITH THE DIRECTNESS AND DIGNITY
APPROPRIATE TO PARTNERS ON AN EQUAL FOOTING.
THERE IS NO EVIDENCE IN THIS CASE THAT THE RESPONDENT IN ANY WAY
SOUGHT TO GIVE APPROPRIATE NOTICE OF THE REORGANIZATION TO THE UNION.
WHILE THE UNION MIGHT HAVE REQUESTED NEGOTIATIONS BASED UPON THE CHANCE
KNOWLEDGE OF ITS AGENT, THE FAILURE OF THE ACTIVITY TO GIVE APPROPRIATE
NOTICE TO THAT AGENT OR OTHER UNION OFFICIAL AS A UNION REPRESENTATIVE
IMPEDED THE ABILITY OF THE UNION TO PERFORM AS AN EQUAL PARTNER WITH
ACTIVITY MANAGEMENT. THUS, RESPONDENT'S FAILURE TO PROVIDE APPROPRIATE
ADVANCE NOTICE TO THE UNION DID NOT COMPLY WITH THE OBLIGATION TO
CONSULT IN GOOD FAITH AS REQUIRED BY THE STATUTE, IN VIOLATION OF
SECTION 7116(A)(5) AND (1) OF THE STATUTE.
HAVING FOUND THE RESPONDENT VIOLATED SECTION 7116(A)(5) AND (1) OF
THE STATUTE BY ITS FAILURE TO GIVE APPROPRIATE ADVANCE NOTICE OF A
REORGANIZATION TO THE UNION, THE RESPONDENT WILL BE REQUIRED TO CEASE
AND DESIST FROM SUCH CONDUCT, AND TO POST AN APPROPRIATE NOTICE.
HOWEVER, THE COMPLAINANT DID NOT SUGGEST THAT A DEMAND TO BARGAIN
BASED ON ACTUAL KNOWLEDGE OF THE CHANGE WOULD HAVE BEEN FUTILE, NOR WAS
IT SHOWN THAT THE FAILURE OF APPROPRIATE ADVANCE NOTICE WOULD HAVE MADE
EFFECTIVE NEGOTIATIONS IMPOSSIBLE. INDEED, STEWARD PRICE DECIDED THAT
NEGOTIATIONS WERE UNNECESSARY AT THE TIME. THEREFORE, AS THE UNION
DECLINED TO ACT ON ITS ACTUAL KNOWLEDGE, IT IS NOT DEEMED APPROPRIATE TO
ORDER BARGAINING HEREIN.
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT UNITED STATES AIR FORCE, AIR FORCE
LOGISTICS COMMAND, AEROSPACE GUIDANCE AND METROLOGY CENTER, NEWARK,
OHIO, SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING TO PROVIDE APPROPRIATE ADVANCE NOTICE OF PLANNED CHANGES
IN CONDITIONS OF EMPLOYMENT AFFECTING UNIT EMPLOYEES TO LOCAL 2221 OF
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO THE EMPLOYEES'
EXCLUSIVE REPRESENTATIVE, OR ANY OTHER LABOR ORGANIZATION HAVING
EXCLUSIVE REPRESENTATION RIGHTS.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS
AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
COMMANDING OFFICER, AEROSPACE GUIDANCE AND METROLOGY CENTER, NEWARK,
OHIO, AND THEY SHALL BE POSTED FOR 60 CONSECUTIVE DAYS THEREAFTER, IN
CONSPICUOUS PLACES, INCLUDING ALL 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.
(B) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION V, 175 WEST JACKSON
BLVD., SUITE 1359A, CHICAGO, ILLINOIS 60604, 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., OCTOBER 24, 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 FAIL TO PROVIDE APPROPRIATE ADVANCE NOTICE OF PLANNED
CHANGES IN CONDITIONS OF EMPLOYMENT AFFECTING UNIT EMPLOYEES TO LOCAL
2221 OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE
EMPLOYEES' EXCLUSIVE REPRESENTATIVE, OR ANY OTHER LABOR ORGANIZATION.
WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
. . .
(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:
175 WEST JACKSON BLVD., SUITE 1359A, CHICAGO, ILLINOIS 60604, AND WHOSE
TELEPHONE NUMBER IS: (312) 353-6306.
-------------------- ALJ$ DECISION FOLLOWS --------------------
GREGORY A. MIKSA, ESQUIRE
OFFICE OF THE GENERAL COUNSEL
FEDERAL LABOR RELATIONS AUTHORITY
REGION V, 219 SO. DEARBORN STREET
ROOM 1638
CHICAGO, ILLINOIS 60604
FOR THE GENERAL COUNSEL
JOHN WILLIAM MULHOLLAND, ESQUIRE
DIRECTOR, LABOR MANAGEMENT SERVICES
DEPARTMENT
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
1325 MASSACHUSETTS AVENUE, N.W.
WASHINGTON, D.C. 20005
FOR THE CHARGING PARTY
CAPT. JAMES J. GONZALES, USAF
LABOR RELATIONS COUNSEL
OFFICE OF THE STAFF JUDGE ADVOCATE
HEADQUARTERS AIR FORCE LOGISTICS COMMAND
WRIGHT-PATTERSON AIR FORCE BASE, OHIO 45433
FOR THE RESPONDENT
BEFORE: LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS CASE AROSE AS AN UNFAIR LABOR PRACTICE PROCEEDING UNDER THE
PROVISIONS OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 92
STAT. 1191, 5 U.S.C. 7101 ET SEQ., (HEREINAFTER CALLED "THE STATUTE")
AND THE RULES AND REGULATIONS ISSUED THEREUNDER.
ON SEPTEMBER 14, 1979, A COMPLAINT WAS FILED BY THE REGIONAL
DIRECTOR, REGION V, FEDERAL LABOR RELATIONS AUTHORITY, CHICAGO,
ILLINOIS, AGAINST THE UNITED STATES AIR FORCE, AIR FORCE LOGISTICS
COMMAND, NEWARK, OHIO (HEREINAFTER CALLED "RESPONDENT" OR "MANAGEMENT"),
ON BEHALF OF LOCAL 2221, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(AFGE), AFL-CIO (HEREINAFTER CALLED "THE UNION" OR "LOCAL 2221"). AN
AMENDED COMPLAINT WAS THEREAFTER FILED ON OCTOBER 24, 1979.
THE COMPLAINT AND AMENDED COMPLAINT REFLECT ALLEGATIONS THAT
RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (5) OF THE STATUTE, 5 U.S.C.
7116(A)(1) AND (5), IN THAT ON OR ABOUT JANUARY 2, 1979, AND THEREAFTER,
THE RESPONDENT FAILED TO BARGAIN IN GOOD FAITH WITH THE UNION; AND THAT
ON OR ABOUT APRIL 23, 1979, THE RESPONDENT UNILATERALLY CHANGED EXISTING
CONDITIONS OF EMPLOYMENT AT THE AEROSPACE GUIDANCE AND METROLOGY CENTER
(AGMC), NEWARK, OHIO. THE ALLEGED UNFAIR LABOR PRACTICES RELATED TO THE
IMPLEMENTATION OF A REORGANIZATION OF THE DIRECTORATE OF METROLOGY AT
THE AGMC, "WITHOUT FURNISHING THE (UNION) WITH NOTICE AND/OR OPPORTUNITY
TO BARGAIN CONCERNING THE IMPACT AND IMPLEMENTATION OF SUCH CHANGES."
/4/
THE RESPONDENT ALLEGES THAT ALTHOUGH THE UNION HAD ADEQUATE PRIOR
NOTICE AND KNOWLEDGE OF THE PROPOSED REORGANIZATION PLAN, THE UNION
FAILED TO REQUEST BARGAINING; THAT THE RESPONDENT DID NOT REFUSE TO
BARGAIN WITH THE UNION AS ALLEGED, AND LASTLY THAT THE UNFAIR LABOR
PRACTICE COMPLAINT IS BARRED BY SECTION 7116(D) OF THE STATUTE, 5 U.S.C.
7116(D), BECAUSE IT INVOLVES ISSUES WHICH WERE RAISED OR COULD HAVE BEEN
RAISED IN A GRIEVANCE FILED BY A BARGAINING UNIT EMPLOYEE UNDER A
NEGOTIATED GRIEVANCE PROCEDURE.
AT THE HEARING COUNSEL REPRESENTING THE RESPONDENT OBJECTED TO THE
CAPTION OF THE CASE AS SET OUT IN THE COMPLAINT AND AMENDED COMPLAINT
/5/ ON THE GROUND THAT THE AGMC SHOULD HAVE BEEN IDENTIFIED AS THE SOLE
RESPONDENT, WITHOUT REFERENCE TO THE UNITED STATES AIR FORCE LOGISTICS
COMMAND, A NEXT HIGHER ECHELON. BOTH ANSWER TO THE COMPLAINT AND ANSWER
TO THE AMENDED COMPLAINT, FILED BY THE RESPONDENT, SPECIFICALLY ADMIT
LANGUAGE IDENTIFYING THE RESPONDENT AS IDENTIFIED IN THE COMPLAINT, AND
THE FACT THAT THE RESPONDENT HAS MAINTAINED, AND CONTINUES TO MAINTAIN A
FACILITY AT NEWARK, OHIO KNOWN AS THE AGMC. MOREOVER, IT IS NOTED THAT
THE DESIGNATION OF THE RESPONDENT IN THE PLEADINGS FILED BY THE
RESPONDENT REFLECTS REFERENCES TO THE UNITED STATES AIR FORCE LOGISTICS
COMMAND.
SINCE MAY 4, 1979, THE LABOR RELATIONS OF THE PARTIES HAVE BEEN
GOVERNED BY A MASTER LABOR AGREEMENT COVERING ALL NON-SUPERVISORY, AND
NON-PROFESSIONAL EMPLOYEES AT NUMEROUS AIR FORCE LOGISTICS COMMAND
FACILITIES (GENERAL COUNSEL EXHIBIT 2). THIS AGREEMENT WAS THE RESULT
OF NEGOTIATIONS WHICH COMMENCED AFTER THE UNITED STATES DEPARTMENT OF
LABOR CERTIFIED A CONSOLIDATED AIR FORCE LOGISTICS COMMAND-WIDE
BARGAINING UNIT COMPRISED OF AFGE APPROPRIATED FUND BARGAINING UNITS ON
JANUARY 12, 1978. /6/ THIS CONSOLIDATED UNIT INCLUDES THE AGMC
BARGAINING UNIT AT NEWARK, OHIO. FOLLOWING CERTIFICATION THE NATIONAL
OFFICE OF AFGE BECAME THE EXCLUSIVE REPRESENTATIVE OF AFGE BARGAINING
UNIT EMPLOYEES. DEPARTMENT OF THE AIR FORCE, SACRAMENTO AIR LOGISTICS
CENTER, MCCLELLAN AIR FORCE BASE, CALIFORNIA, ASSISTANT SECRETARY CASE
NO. 70-6220 (CU), 1 FLRA 113, (SEPT. 20, 1979), REPORT NO. 17.
AS OF JUNE 5, 1975, THE LABOR RELATIONS OF LOCAL 2221 AND AGMC WERE
GOVERNED BY A LOCAL AGREEMENT (GENERAL COUNSEL EXHIBIT 3). ON AUGUST 4,
1977,THE PARTIES EXTENDED THE LOCAL AGREEMENT, "UNTIL THE ASSISTANT
SECRETARY OF LABOR-MANAGEMENT RELATIONS CERTIFIES THE CONSOLIDATION OF
UNITS WITHIN AFLC AT WHICH TIME THE RULES OF THE ASSISTANT SECRETARY
SHALL PREVAIL." (GENERAL COUNSEL EXHIBIT 3). SINCE THE CERTIFICATION
OCCURRED ON JANUARY 12, 1978, THE MENTIONED LOCAL AGREEMENT TERMINATED
IN ACCORDANCE WITH THE SPECIFIC PROVISIONS OF THE LOCAL AGREEMENT. /7/
AFTER CERTIFICATION OF THE COMMAND-WIDE BARGAINING UNIT THE
PROVISIONS OF THE LOCAL AGREEMENT WERE UTILIZED BY THE PARTIES TO GOVERN
LABOR RELATIONS. WITNESSES REPRESENTING BOTH PARTIES ESTABLISHED THAT
THE PARTIES CONTINUED TO ENFORCE THE LOCAL AGREEMENT AS A VIABLE
INSTRUMENT AND COUNSEL FOR THE RESPONDENT ESTABLISHED THROUGH A
MANAGEMENT WITNESS THAT ARTICLE 8 OF THE LOCAL AGREEMENT IMPOSED "AN
OBLIGATION TO CONSULT UNDER (THE) CONTRACT WITH THE UNION ON THE EFFECT
AND IMPLEMENTATION OF . . . CHANGES; THAT WE MAY HAVE TO CONSIDER THEIR
VIEWS, AND TO TRY TO COME TO SOME AGREEMENT . . ." (TR. 240).
THE RECORD ALSO DISCLOSED THAT DURING 1978 NEGOTIATIONS BETWEEN AFGE
AND AFLC, NEGOTIATORS REPRESENTING AFGE MADE IT CLEAR TO AFLC
NEGOTIATORS AT THE NATIONAL LEVEL THAT THE VARIOUS LOCAL UNIONS COVERED
BY THE MASTER LABOR AGREEMENT HAD BEEN DESIGNATED AS THE APPROPRIATE
LEVEL FOR BARGAINING CONCERNING MATTERS OF LOCAL CONCERN, AND THAT THERE
WOULD BE NO WAIVER OF ANY LOCAL UNION'S RIGHT TO BARGAIN CONCERNING
LOCAL ISSUES (TR. 19, 50-52, 73-74, 95). DURING THESE NEGOTIATIONS
LEADING TO THE MASTER LABOR AGREEMENT, THE AFGE NEGOTIATORS NOTIFIED
AFLC NEGOTIATORS THAT LOCAL UNION PRESIDENTS OR OFFICERS HAD AUTHORITY
TO NEGOTIATE ON LOCAL MATTERS AS AGENTS OF THE NATIONAL OFFICE OF AFGE
(TR. 95). THIS EVIDENCE WAS NOT OTHERWISE CONTRADICTED IN THE RECORD.
SINCE THE COMPLAINT IS LIMITED TO ALLEGATIONS THAT THERE WAS A
FAILURE TO PROVIDE LOCAL 2221 WITH NOTICE AND/OR OPPORTUNITY TO BARGAIN
CONCERNING THE IMPACT AND IMPLEMENTATION OF THE REORGANIZATION PLAN, AND
SINCE RESPONDENT ASSERTS THAT THE LOCAL AGREEMENT WAS IN EFFECT DURING
THE PERIOD IN QUESTION, THERE IS, WITHIN THE CONTEXT OF THIS CASE, NO
ISSUE CONCERNING THE RESPONDENT'S OBLIGATION TO BARGAIN WITH LOCAL 2221
TO THE EXTENT REFERRED TO IN THE COMPLAINT. FURTHERMORE, IN LIGHT OF
POSITIONS TAKEN BY RESPONDENT AND THE UNION HEREIN IT IS IMMATERIAL
WHETHER THE OBLIGATION TO BARGAIN STEMS FROM THE LOCAL AGREEMENT OR THE
STATUTE.
A HEARING WAS HELD BEFORE THE UNDERSIGNED AT THE AGMC, NEWARK, OHIO.
ALL PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO
BE HEARD, ADDUCE RELEVANT EVIDENCE, AND EXAMINE AND CROSS-EXAMINE
WITNESSES. POST-HEARING BRIEFS WERE RECEIVED FROM COUNSEL FOR THE
GENERAL COUNSEL, FEDERAL LABOR RELATIONS AUTHORITY, AND THE RESPONDENT.
THESE HAVE BEEN DULY CONSIDERED. /8/ BASED UPON THE ENTIRE RECORD
HEREIN, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR,
THE EXHIBITS AND OTHER RELEVANT EVIDENCE ADDUCED AT THE HEARING, AND THE
BRIEFS, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS AND ORDER.
REORGANIZATION OF DIRECTORATE OF METROLOGY
ON FEBRUARY 15, 1978, FRANK A. FLYNN, CHIEF OF METROLOGY, OPERATIONS
BRANCH, DIRECTORATE OF METROLOGY, ASSIGNED PETER ROSS, AN OPERATIONS
BRANCH EMPLOYEE, AS THE PRIMARY PERSON TO PREPARE A REORGANIZATION PLAN
FOR THE DIRECTORATE (TR. 321-322). THE PLANNING PHASE EXTENDED OVER A
PERIOD OF MONTHS AND WAS COMPLETED BY THE OPERATIONS BRANCH IN SEPTEMBER
OF 1978 (TR. 360-362). THE PROPOSED REORGANIZATION, NOT THEN APPROVED
OR IMPLEMENTED, INCLUDED A NEW LABORATORY SUPPORT OFFICE IN THE
MEASUREMENT STANDARDS LABORATORY OF THE DIRECTORATE OF METROLOGY AND
REDEFINED AREAS OF RESPONSIBILITY WITHIN THE DIRECTORATE (GENERAL
COUNSEL EXHIBIT 4, AND RESPONDENT EXHIBIT 13 AT P. 5).
ON OCTOBER 27, 1978, COLONEL DAVID W. HUFF, COMMANDER, AGMC,
FORWARDED THE PROPOSED REORGANIZATION PLAN TO HEADQUARTERS, AIR FORCE
LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, FOR APPROVAL.
IN JANUARY OR FEBRUARY OF 1979, AGMC RECEIVED THE INFORMAL APPROVAL OF
HEADQUARTERS AIR FORCE LOGISTICS COMMAND (TR. 288-290). /9/ THE PLAN
WAS IMPLEMENTED AT AGMC ON APRIL 23, 1979 (TR. 324).
INSOFAR AS IS PERTINENT HERE THE REORGANIZATION HAD THE EFFECT OF
CREATING THREE NEW POSITIONS IN THE NEW LABORATORY SUPPORT OFFICE. THE
PLAN INCLUDED THE TRANSFER OF PETER ROSS AND TWO OTHER OPERATIONS BRANCH
EMPLOYEES (TR. 127-128). ONE OF THE THREE POSITIONS CREATED WAS THE
DIRECT RESULT OF CONVERSION OF A PROGRAM ANALYST JOB AUTHORIZATION IN
THE OPERATIONS BRANCH TO THAT OF AN INDUSTRIAL ENGINEERING TECHNICIAN
POSITION IN THE LABORATORY SUPPORT OFFICE (TR. 330-331). INDUSTRIAL
ENGINEERING TECHNICIAN WORK FUNCTIONS ASSOCIATED WITH THE PROGRAM
ANALYST POSITION WERE ALSO TRANSFERRED TO THE NEW UNIT (TR. 130-131).
WILLIAM ROBERTS, A BARGAINING UNIT MEMBER HAD OCCUPIED THE PROGRAM
ANALYST POSITION, AND HAD EARLIER INDICATED OBJECTION TO A TRANSFER TO
THE NEW UNIT BECAUSE OF A DESIRE TO REMAIN IN THE PROGRAM ANALYST
POSITION (TR. 339). IT WAS DISCLOSED THAT ROBERTS HELD A GS-11 RATING,
AND THAT THE PROGRAM ANALYST POSITION WHICH HE HELD HAD THE POTENTIAL
FOR PROMOTION TO THE GS-12 LEVEL. THE INDUSTRIAL ENGINEERING TECHNICIAN
POSITION WAS CONSIDERED LESS DESIRABLE BECAUSE IT WAS STABILIZED AT THE
GS-11 LEVEL (TR. 170-171). THE CONVERSION OF THE JOB AUTHORIZATION
RELATING TO THE POSITION HELD BY ROBERTS IN THE OPERATIONS BRANCH
EFFECTIVELY ABOLISHED THE POSITION.
NOTICE OF THE REORGANIZATION
THE RECORD REFLECTS THAT ABOUT ONE WEEK BEFORE THE REORGANIZATION WAS
IMPLEMENTED, FRANK A. FLYNN, CHIEF, OPERATIONS BRANCH CONDUCTED AN
OPERATIONS BRANCH STAFF MEETING AND ANNOUNCED TO OPERATIONS BRANCH
PERSONNEL THAT THE REORGANIZATION WOULD OCCUR ON APRIL 23, 1979, THAT A
NEW LABORATORY SUPPORT OFFICE WOULD BE CREATED AND THAT CERTAIN NAMED
INDIVIDUALS IN THE OPERATIONS BRANCH WOULD BE TRANSFERRED TO POSITIONS
CREATED IN THE NEW OFFICE (TR. 125, 173, 184-185, 188-191, 193). CLEM
PRICE THE UNION'S STEWARD FOR THE DIRECTORATE OF METROLOGY ATTENDED THE
MEETING. PRICE WAS ALSO EMPLOYED IN THE OPERATIONS BRANCH AS A PROGRAM
ANALYST. THE MEETING WAS ATTENDED BY ABOUT TWELVE TO FIFTEEN PEOPLE AND
LASTED ABOUT FORTY-FIVE MINUTES. THERE WAS A DISCUSSION OF CHANGES
WHICH WOULD BE IMPLEMENTED ON APRIL 23, 1979 (TR. 190-191).
THE RECORD DISCLOSED THAT PRICE COMMENCED SERVICE AS A STEWARD IN THE
DIRECTORATE OF METROLOGY ON DECEMBER 2, 1977 (TR. 157). A PICTURE OF
HIS STEWARD ROLE APPEARS IN THE RECORD FROM NUMEROUS FACTS. THE
PRESIDENT OF THE UNION TESTIFIED THAT IT WAS A REGULAR PRACTICE FOR THE
PRESIDENT TO DELEGATE AUTHORITY TO OFFICERS AND STEWARDS AS IT WAS
IMPOSSIBLE FOR THE PRESIDENT TO HANDLE EVERYTHING (TR. 120-121). HIS
DUTIES INVOLVED REPRESENTING ALL BARGAINING UNIT MEMBERS IN THE
DIRECTORATE OF METROLOGY IN THEIR DEALINGS WITH THE DIRECTOR AND THE
VARIOUS BRANCH CHIEFS IN THE DIRECTORATE (TR. 157-158). HE HANDLED
GRIEVANCES TO THE FOURTH STEP WHICH INVOLVED THE AGMC COMMAND LEVEL (TR.
158). IT WAS DISCLOSED THAT PRICE WAS THE ONLY STEWARD IN THE
DIRECTORATE, AN ELEMENT OF AGMC CONSISTING OF A TOTAL OF 218 TO 220
EMPLOYEES (TR. 191-192). PRICE TESTIFIED THAT HE HAD THE RESPONSIBILITY
FOR RECEIVING NOTICE OF CHANGES IN PERSONNEL POLICIES, PRACTICES AND
WORKING CONDITIONS IN THE DIRECTORATE, AND MORE IMPORTANTLY THAT IT
WOULD HAVE BEEN HIS RESPONSIBILITY TO RELAY PERTINENT INFORMATION "TO
THE UNION OFFICE AND DISCUSS IT WITH THE EXECUTIVE OFFICERS . . ." (TR.
212).
IMMEDIATELY AFTER THE MENTIONED STAFF MEETING, PRICE CONTACTED PETER
ROSS AS PRICE HAD LEARNED THAT HE WAS THE INDIVIDUAL WHO HAD DEVELOPED
THE REORGANIZATION PLAN. /10/ PRICE REQUESTED PERMISSION TO SEE THE
DETAILED PLAN AND WAS GIVEN THE OPPORTUNITY TO EXAMINE A COPY OF THE
ENTIRE PLAN (TR. 126, 176-177, RESPONDENT EXHIBIT 9). /11/ PRICE NOTED
THAT THE PLAN INDICATED POSITIONS WHICH WOULD BE ASSIGNED TO EACH
ELEMENT OF THE DIRECTORATE BEFORE AND AFTER THE PROPOSED REORGANIZATION,
AND THE SPECIFIC LOCATION OF THESE POSITIONS. HE ALSO NOTED THAT IT
IDENTIFIED THE THREE POSITIONS WHICH WOULD BE CREATED IN THE NEW
LABORATORY SUPPORT OFFICE (TR. 205). /12/ THE PLAN REFLECTED THAT TWO
OF THE THREE NEWLY CREATED POSITIONS IN THE LABORATORY SUPPORT OFFICE
WOULD BE DRAWN FROM THE OPERATIONS BRANCH, AND MORE SPECIFICALLY THAT
THE INDUSTRIAL ENGINEERING TECHNICIAN POSITION WOULD BE TAKEN FROM THE
OPERATIONS BRANCH (TR. 332.335). THE PARTIES STIPULATED THAT THE PLAN
IN QUESTION DID REFLECT THE POSITIONS AFFECTED BY THE REORGANIZATION,
BUT NOT THE NAMES OF INDIVIDUALS (TR. 299).
ALTHOUGH PRICE'S TESTIMONY INDICATES THAT HE DID NOT BECOME AWARE OF
THE PROPOSED REORGANIZATION UNTIL HE ATTENDED THE OPERATIONS BRANCH
STAFF MEETING ABOUT A WEEK PRIOR TO IMPLEMENTATION, THERE IS A GREAT
DEAL OF EVIDENCE IN THE RECORD INDICATIVE OF THE FACT THAT PRICE
POSSESSED EARLIER KNOWLEDGE OF THE PROPOSED REORGANIZATION OF THE
DIRECTORATE OF METROLOGY. PRICE WORKED IN THE OPERATIONS BRANCH WITH
PETER ROSS DURING THE PERIOD WHEN ROSS WAS DEVELOPING THE PLAN (TR. 174,
353). HE ADMITTED THAT HE KNEW ROSS WAS WORKING ON A REORGANIZATION
PLAN OF SOME SORT (TR. 209-210). HE STATED THAT PRIOR TO THE OPERATIONS
BRANCH STAFF MEETING THERE WAS TALK IN THE OFFICE ABOUT THE
REORGANIZATION OF THE DIRECTORATE OF METROLOGY, AND ABOUT THE FACT THAT
DIRECTORATE JOBS WOULD BE AFFECTED (TR. 186-188). PRICE WAS VAGUE ABOUT
HIS SOURCES OF INFORMATION IN THIS REGARD (TR. 186), BUT STATED THAT
SUCH INFORMATION REACHED HIM AS EARLY AS THE END OF MARCH OR FIRST OF
APRIL 1979 (TR. 187-190).
IN ADDITION TO THE FOREGOING, THE RECORD DISCLOSED THAT THE
REORGANIZATION PLAN FINALLY APPROVED FOR SUBSEQUENT IMPLEMENTATION WAS
IN EXISTENCE IN TENTATIVE FORM AT LEAST AS EARLY AS OCTOBER OF 1978
(RESPONDENT EXHIBIT 12), THAT IT WAS A TOPIC OF CONVERSATION IN THE
OPERATIONS BRANCH, THAT PRICE WAS THEN EMPLOYED IN THE BRANCH, THAT THE
BRANCH CONSISTED OF A SMALL GROUP OF ABOUT SIXTEEN EMPLOYEES, THAT THE
PLAN WAS DISCUSSED BY ROSS WITH OTHERS, THAT IT WAS NOT CONSIDERED
SECRET OR CONFIDENTIAL, AND THAT IT WAS MENTIONED AT EARLIER OPERATIONS
BRANCH STAFF MEETINGS (TR. 322-323, 350-352, 355-356). /13/
ON THE BASIS OF INFORMATION OBTAINED AT THE STAFF MEETING HELD A WEEK
PRIOR TO IMPLEMENTATION, AND INFORMATION OBTAINED FROM AN EXAMINATION OF
THE DETAILED PLAN TO REORGANIZE THE DIRECTORATE OF METROLOGY, PRICE
DETERMINED THAT IT WAS NOT THEN NECESSARY TO TAKE FURTHER ACTION ON
BEHALF OF THE UNION (TR. 184). IT WAS ESTABLISHED THAT FRANK FLYNN WAS
AVAILABLE TO RESPOND TO QUESTIONS, BUT THAT PRICE DID NOT THINK THAT IT
WAS NECESSARY (TR. 177). PRICE TESTIFIED THAT HE SAW NO PROBLEM WITH
THE REORGANIZATION AT THAT TIME (TR. 179-180). /14/ HIS TESTIMONY ON
THIS POINT INCLUDED THE FOLLOWING:
. . . (I)F I HAD DETECTED SOMETHING THAT I THOUGHT WOULD HAVE AN
ADVERSE IMPACT ON SOME OF
THE PEOPLE IN THE RANK AND FILE, YES, I WOULD HAVE WENT TO MR.
FLYNN. BUT AT THAT POINT IN
TIME, I DIDN'T DETECT ANYTHING.
AS A RESULT OF THE EVENTS OUTLINED THE PLANNED REORGANIZATION WAS
ALLOWED TO GO INTO EFFECT ON APRIL 23, 1979, WITHOUT THE UNION
INTERPOSING A REQUEST TO BARGAIN CONCERNING THE PLAN (TR. 121, 150).
RELATIONSHIP BETWEEN GRIEVANCES FILED BY WILLIAM ROBERTS
AND THE REORGANIZATION
THE RECORD DISCLOSED THAT WILLIAM ROBERTS FILED A GRIEVANCE AGAINST
FRANK FLYNN ON MARCH 22, 1979 TO PROTEST A JANUARY 2, 1979 TEMPORARY
DETAIL TO A LOWER GRADED POSITION (GENERAL COUNSEL EXHIBIT 10). THE
GRIEVANCE WAS THE SUBJECT OF A MARCH 27, 1979, MEETING ATTENDED BY
ROBERTS, FRANK FLYNN, AND THOMAS WARD. WARD WAS THEN ACTING AS ROBERTS'
UNION REPRESENTATIVE (GENERAL COUNSEL EXHIBIT 5). THE MEETING
OSTENSIBLY RESULTED IN ROBERTS RECEIVING ASSURANCE THAT FLYNN WOULD
REQUEST A RETROACTIVE CANCELLATION OF THE DETAIL. HOWEVER, THE DETAIL
WAS NOT IMMEDIATELY CANCELLED, AND ON MAY 2, 1979 (AFTER IMPLEMENTATION
OF THE REORGANIZATION), ROBERTS REQUESTED PRICE TO REPRESENT HIM IN
CONNECTION WITH THE GRIEVANCE FILED IN MARCH, BUT NOT YET RESOLVED IN
ACCORDANCE WITH THE AGREEMENT REACHED BY THE PARTIES. ON THE SAME DAY
(MAY 2, 1979) PRICE, FLYNN AND ROBERTS MET TO DISCUSS THE ISSUE RELATING
TO THE DETAILING OF ROBERTS TO A LOWER GRADED POSITION (TR. 128-129).
AT THE MEETING FLYNN ADVISED PRICE AND ROBERTS THAT THE REORGANIZATION
HAD THE EFFECT OF ABOLISHING THE PROGRAM ANALYST POSITION ONCE HELD BY
ROBERTS IN THE OPERATIONS BRANCH, AND FURTHER THAT INDUSTRIAL
ENGINEERING TECHNICIAN JOB FUNCTIONS ONCE PERFORMED BY ROBERTS, HAD BEEN
TRANSFERRED TO THE NEW LABORATORY SUPPORT OFFICE (TR. 130). THE PARTIES
DISCUSSED THE EFFECT OF AN ANTICIPATED REDUCTION IN FORCE AT AGMC IN THE
LIGHT OF CIRCUMSTANCES CREATED BY THE REORGANIZATION (GENERAL COUNSEL
EXHIBITS 8-F AND 9). AS A RESULT OF THE MEETING A SECOND GRIEVANCE WAS
FILED BY ROBERTS ON MAY 17, 1979. IN ADDITION TO OTHER GROUNDS, THIS
GRIEVANCE WAS BASED UPON THE ALLEGATIONS UNDERLYING THE MARCH 22, 1979,
GRIEVANCE TOGETHER WITH ALLEGATIONS QUESTIONING THE RIGHT OF THE
RESPONDENT TO ABOLISH THE PROGRAM ANALYST POSITION ONCE HELD BY ROBERTS
IN THE OPERATIONS BRANCH (GENERAL COUNSEL EXHIBIT 8-E). /15/
REORGANIZATION PLAN AGAIN REVIEWED ON MAY 2, 1979
IMMEDIATELY FOLLOWING THE MAY 2, 1979 MEETING ATTENDED BY FLYNN,
PRICE AND ROBERTS, PRICE AGAIN CONTACTED PETER ROSS AND REQUESTED
PERMISSION TO SEE THE REORGANIZATION PLAN FOR THE PURPOSE OF DETERMINING
THE SPECIFIC EFFECT OF THE REORGANIZATION UPON THE WORK WHICH ROBERTS
HAD PERFORMED IN THE OPERATIONS BRANCH AS A PROGRAM ANALYST (TR.
132-133, 206). ON THIS OCCASION PRICE AGAIN REVIEWED THE PLAN. HE ALSO
OBTAINED PHOTOCOPIES OF DOCUMENTS REFLECTING RESPONDENT'S TRANSMISSION
OF THE PLAN TO THE AIR FORCE LOGISTICS COMMAND FOR APPROVAL (GENERAL
COUNSEL EXHIBIT 7, TR. 207-208). PRICE THEREAFTER WROTE A MEMORANDUM TO
THE PRESIDENT OF THE UNION REQUESTING THAT AN UNFAIR LABOR PRACTICE
CHARGE BE FILED BY THE UNION BECAUSE THE UNION WAS NOT PROVIDED WITH AN
OPPORTUNITY TO BARGAIN CONCERNING THE CHANGES MADE BY THE REORGANIZATION
(TR. 138, GENERAL COUNSEL EXHIBIT 1-A).
DISCUSSION AND CONCLUSIONS
A THRESHOLD ISSUE POSED IN THIS CASE RELATES TO THE RESPONDENT'S
CONTENTION THAT THE COMPLAINT IS BARRED BY SECTION 7116(D) OF THE
STATUTE BECAUSE OF A GRIEVANCE FILED ON BEHALF OF WILLIAM ROBERTS ON MAY
17, 1979. THIS ARGUMENT MUST BE REJECTED AS THE GRIEVANCE RAISED ISSUES
OTHER THAN THOSE INVOLVED WITHIN THE CONTEXT OF THIS UNFAIR LABOR
PRACTICE COMPLAINT. ALSO, THE FACT THAT THE GRIEVANCE WAS NOT FILED BY
THE UNION IN ITS INSTITUTIONAL CAPACITY AS AN AGGRIEVED PARTY, PRECLUDES
CONSIDERATION OF THE GRIEVANCE AS A BASIS FOR BARRING THE COMPLAINT.
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, FRESNO SERVICE
CENTER, 8 A/SLMR 177, A/SLMR NO. 983 (FEB. 6, 1978). IT IS THEREFORE
CONCLUDED THAT THE FILING OF THE GRIEVANCE DID NOT CONSTITUTE AN
ELECTION OF REMEDIES WITHIN THE MEANING OF SECTION 7116(D).
THE REORGANIZATION IMPLEMENTED INVOLVED CHANGES IN THE TERMS AND
CONDITIONS OF EMPLOYMENT IN THE DIRECTORATE OF METROLOGY. THESE CHANGES
INVOLVED THE EXERCISE OF MANAGEMENT RIGHTS DESCRIBED IN SECTIONS 7106(A)
OF THE STATUTE, 5 U.S.C 7106(A). SECTION 7106(B)(2) AND (3) OF THE
STATUTE, 5 U.S.C. 7106(B)(2) AND (3) OPERATE TO REQUIRE MANAGEMENT
OFFICIALS TO NEGOTIATE CONCERNING PROCEDURES TO BE USED IN EXERCISING
MANAGEMENT RIGHTS, AND CONCERNING APPROPRIATE ARRANGEMENTS FOR
EMPLOYEES
ADVERSELY AFFECTED BY THE EXERCISE OF MANAGEMENT RIGHTS. BARGAINING IS
MANDATORY IN THESE AREAS OF CONCERN. /16/ MANAGEMENT HAS AN OBLIGATION
TO PROVIDE ADEQUATE NOTICE OF THE CHANGES CONTEMPLATED AS WELL AS AN
OPPORTUNITY TO BARGAIN CONCERNING THE CHANGES.
THE ISSUE OF WHETHER THE UNION RECEIVED ADEQUATE NOTICE OF THE
REORGANIZATION MUST FIRST BE CONSIDERED FROM THE STANDPOINT OF WHETHER
PRICE'S ROLE AS UNION STEWARD IN THE DIRECTORATE OF METROLOGY CONFERRED
ON HIM THE AUTHORITY TO RECEIVE NOTICE OF THE PROPOSED REORGANIZATION.
THE FACTUAL PATTERN PRESENTED MAKES IT CLEAR THAT PRICE'S OPERATIONS
BRANCH WORK ASSIGNMENT COUPLED WITH HIS AREA OF RESPONSIBILITY IN THE
UNION, CONSTITUTES A SUFFICIENT BASIS FOR CONCLUDING THAT HE WAS AN
APPROPRIATE INDIVIDUAL TO RECEIVE NOTICE ON BEHALF OF THE UNION. HE WAS
THE UNION'S ONLY STEWARD IN THE DIRECTORATE AND HAD THE AUTHORITY TO
RECEIVE NOTICE OF CHANGES IN PERSONNEL POLICIES AND PRACTICES AND
WORKING CONDITIONS IN THE DIRECTORATE. IN FACT, IT WAS HIS
RESPONSIBILITY TO RELAY INFORMATION TO OTHER UNION OFFICIALS. THESE
FACTORS, TOGETHER WITH OTHER INDICIA OF PRICE'S AUTHORITY, LEAD TO THE
CONCLUSION THAT NOTICE TO PRICE, IF OTHERWISE ADEQUATE, WOULD BE
SUFFICIENT. OF INTEREST ON THIS POINT IS THE DECISION OF THE AUTHORITY
IN INTERNAL REVENUE SERVICE AND IRS RICHMOND DISTRICT OFFICE, ASSISTANT
SECRETARY CASE NO. 22-09462(CA), 2 FLRA NO. 43 (DEC. 31, 1979), REPORT
NO. . . . , WHERE NOTICE TO A UNION STEWARD RATHER THAN A UNION
PRESIDENT, OF PROPOSED ACTIONS CONCERNING THE HIRING AND UTILIZATION OF
"INTERMITTENT EMPLOYEES" WAS DEEMED ADEQUATE NOTICE, ALTHOUGH IT
APPEARED THAT PROTOCOL HAD BEEN DISREGARDED BY MANAGEMENT. /17/
THE RECORD DISCLOSES THAT PRICE WAS THE RECIPIENT OF A FLOW OF
INFORMATION ABOUT THE REORGANIZATION NEARLY ONE MONTH PRIOR TO
IMPLEMENTATION OF THE PLAN. AS EARLY AS THE END OF MARCH 1979, PRICE
WAS AWARE OF DISCUSSIONS IN THE OPERATIONS BRANCH CONCERNING
REORGANIZATION OF THE DIRECTORATE, AND CONCERNING THE FACT THAT
DIRECTORATE JOBS WOULD BE AFFECTED. HIS VAGUENESS ABOUT THE SOURCES OF
HIS INFORMATION AND THE EXACT NATURE OF THE INFORMATION POSSESSED PRIOR
TO THE OPERATION BRANCH STAFF MEETING HELD ONE WEEK BEFORE
IMPLEMENTATION, GAVE RISE TO DOUBT CONCERNING HIS CREDIBILITY. IN
ADDITION, PRICE'S TESTIMONY CONCERNING THE LEVEL OF HIS AWARENESS PRIOR
TO THE OPERATIONS BRANCH STAFF MEETING CONTRADICTED ASSERTIONS THAT HE
HAD NO KNOWLEDGE OF THE REORGANIZATION PRIOR TO THAT MEETING.
NEVERTHELESS, EVIDENCE OF PRICE'S POSSESSION OF KNOWLEDGE PRIOR TO
FLYNN'S ANNOUNCEMENT AT A STAFF MEETING IS SUPPLEMENTED BY EVIDENCE
INDICATING THAT PRICE RECEIVED KEY DETAILS RELATING TO THE PLAN AND THE
DATE OF ANTICIPATED IMPLEMENTATION, AT THE STAFF MEETING. /18/ THERE
WAS DISCUSSION OF THE CHANGES CONTEMPLATED BY MANAGEMENT, AND AFTER THE
STAFF MEETING, PRICE REQUESTED AND RECEIVED A COPY OF THE PLAN. IT IS
NOTED THAT PRICE HAD SUFFICIENT INFORMATION ABOUT THE REORGANIZATION TO
GO DIRECTLY TO PETER ROSS, THE INDIVIDUAL IN CHARGE OF DRAFTING THE
PLAN, ALTHOUGH HE WAS VAGUE CONCERNING HIS ACQUISITION OF KNOWLEDGE
RELATIVE TO THE INVOLVEMENT OF ROSS IN THE FORMULATION OF THE PLAN. IT
WAS ESTABLISHED THAT PRICE RECEIVED THE PLAN AND DETERMINED THAT IT WAS
NOT A SOURCE OF CONCERN. HIS TESTIMONY TO THE EFFECT THAT HIS DECISION
WAS BASED LARGELY UPON THE ABSENCE OF GRIEVANCES ON THE SUBJECT,
SUGGESTS THAT DETAILS CONCERNING THE PLAN WERE MORE WIDELY CIRCULATED
THAN PRICE'S TESTIMONY SUGGESTS. HOWEVER, THE BASIC FACT REMAINS THAT
THE SPECIFICS OF THE PLAN, THEN ONLY INFORMALLY APPROVED BY HIGHER
MANAGEMENT OFFICIALS, WERE DISCLOSED TO PRICE, AND FURTHER THAT A
DECISION WAS THEN MADE BY PRICE THAT FURTHER UNION ACTION PRIOR TO
IMPLEMENTATION WAS NOT NECESSARY.
UPON RECEIPT OF KNOWLEDGE OF THE PLANNED REORGANIZATION IT WAS
INCUMBENT UPON THE UNION TO AVAIL ITSELF OF THE OPPORTUNITY PRESENTED
AND REQUEST EITHER TO MEET AND CONFER, OR TO BE GRANTED MORE TIME TO
CONSIDER THE PROPOSED CHANGES. DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL
SHIPYARD, 5 A/SLMR 247, A/SLMR NO. 508 (APRIL 29, 1975); DEPARTMENT OF
THE ARMY, U.S. MILITARY ACADEMY, WEST POINT, NEW YORK, 8 A/SLMR 1163,
A/SLMR NO. 1138 (OCT. 17, 1978); INTERNAL REVENUE SERVICE, WASHINGTON,
D.C., ASSISTANT SECRETARY CASE NO. 22-08866(CA), 1 FLRA NO. 91 (JULY 31,
1979), REPORT NO. 13. IN THIS CASE IT APPEARED, EITHER RIGHTLY OR
WRONGLY, THAT PRICE DETERMINED THAT SUCH A REQUEST WOULD BE UNNECESSARY,
AND NO FURTHER ACTION WAS TAKEN UNTIL THE SECOND WILLIAM ROBERTS
GRIEVANCE MATTER AROSE ON MAY 2, 1979. THIS GRIEVANCE PRECIPITATED
PRICE'S RECOMMENDATION THAT AN UNFAIR LABOR PRACTICE CHARGE BE FILED.
THAT RESPONDENT COULD HAVE GIVEN NOTICE TO THE UNION IN A MORE FORMAL
MANNER, OR DIRECTLY TO HIGHER UNION OFFICIALS, DOES NOT ATTENUATE THE
NOTICE ACTUALLY RECEIVED BY PRICE. IF NOTICE IS OTHERWISE ADEQUATE, IT
IS NOT ESSENTIAL THAT THE NOTICE GIVEN BE FORMAL IN NATURE. SOUTHEAST
EXCHANGE REGION OF THE ARMY AND AIR FORCE EXCHANGE SERVICE, ROSEWOOD
WAREHOUSE, COLUMBIA, SOUTH CAROLINA, 6 A/SLMR 228, A/SLMR NO. 656, (MAY
28, 1976). TO HOLD OTHER WISE WOULD ELEVATE FORM OVER SUBSTANCE. AS
THE ONLY STEWARD IN THE DIRECTORATE OF METROLOGY, PRICE WAS AN
ESTABLISHED POINT OF CONTACT WITH THE UNION IN THE DIRECTORATE, AND THE
REORGANIZATION PERTAINED TO THE DIRECTORATE. STEPS TAKEN BY PRICE ONE
WEEK BEFORE IMPLEMENTATION CLEARLY SUGGEST THE NATURE OF HIS UNION ROLL,
THAT IS HE MADE A DETERMINATION THAT THE REORGANIZATION WOULD NOT
PRESENT A PROBLEM FOR BARGAINING UNIT MEMBERS. IT IS CONCEIVABLE THAT
OTHER UNION OFFICIALS WOULD HAVE EXAMINED THE PLAN FROM A DIFFERENT
STANDPOINT, OR HAD DIFFERENT PERCEPTIONS OF THE REORGANIZATION. THESE
SPECULATIONS DO NOT UNDERMINE THE FACT THAT THE UNION, THROUGH PRICE,
WAS APPRISED OF THE PLAN AND HAD AN ADEQUATE OPPORTUNITY TO REQUEST
BARGAINING PRIOR TO IMPLEMENTATION. HOWEVER, NO SUCH REQUEST WAS MADE.
IT IS CONCLUDED THAT A PREPONDERANCE OF THE EVIDENCE DOES NOT SUPPORT
ALLEGATIONS THAT THE RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (5) OF
THE STATUTE.
UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS, IT IS
RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5
C.F.R. 2423.29(C):
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 5-CA-157, BE, AND
HEREBY IS, DISMISSED.
LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 24, 1980
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ THE AUTHORITY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S CONCLUSION
THAT THE COMPLAINT HEREIN IS NOT BARRED BY SECTION 7116(D) OF THE
STATUTE. INTERNAL REVENUE SERVICE, CHICAGO, ILLINOIS, 3 FLRA 75.
/2/ SECTION 7103(12) DEFINES "COLLECTIVE BARGAINING" AS "THE
PERFORMANCE OF THE MUTUAL OBLIGATION OF THE REPRESENTATIVE OF AN AGENCY
AND THE EXCLUSIVE REPRESENTATIVE OF EMPLOYEES IN AN APPROPRIATE UNIT IN
THE AGENCY" TO PERFORM CERTAIN ENUMERATED FUNCTIONS.
/3/ THE LEGISLATIVE HISTORY REFLECTS THE GOAL OF BRINGING BALANCE TO
THE UNION-MANAGEMENT RELATIONSHIP IN THE FEDERAL SECTOR. SEE, E.G., THE
STATEMENTS OF CONGRESSMAN UDALL OF ARIZONA CONCERNING HIS AMENDMENT
KNOWN AS THE "UDALL SUBSTITUTE" TO H.R. 11280, 124 CONG. REC. H9633
(DAILY ED. SEPTEMBER 13, 1978), THE STATEMENTS OF CONGRESSMAN CLAY OF
MISSOURI 124 CONG. REC. E4497 (DAILY ED. AUG. 10, 1978) AND 124 CONG.
REC. E4509, (DAILY ED. AUG. 10, 1978), AND THE STATEMENT OF CONGRESSMAN
FORD OF MICHIGAN 124 CONG. REC. H8467 (DAILY ED. AUG. 11, 1978).
/4/ DESPITE LANGUAGE ALLEGING A FAILURE TO BARGAIN IN GOOD FAITH
AFTER JANUARY 2, 1979, IT IS NOTED THAT COUNSEL FOR THE GENERAL COUNSEL
ARGUED IN HIS POST-HEARING BRIEF THAT THE SOLE ISSUE POSED IS WHETHER
THE RESPONDENT AFFORDED THE UNION TIMELY, SUFFICIENT AND REASONABLE
NOTICE OF ITS PLAN TO REORGANIZE THE DIRECTORATE OF METROLOGY ON APRIL
23, 1979.
/5/ THESE DOCUMENTS ARE ALSO REFERRED TO HEREIN AS "THE COMPLAINT."
/6/ RESPONDENT'S EXHIBIT 1 REFLECTS THAT THE CERTIFICATION WAS
EFFECTIVE AS OF JANUARY 12, 1978; HOWEVER, THE PLEADINGS ESTABLISH
JANUARY 13, 1978 AS THE CORRECT DATE. ALTHOUGH NOT MATERIAL, IT APPEARS
FROM AN EXAMINATION OF RESPONDENT'S EXHIBIT 1, THAT JANUARY 12, 1978,
REPRESENTS THE CORRECT DATE.
/7/ COUNSEL FOR THE RESPONDENT CONTENDED THROUGHOUT THAT THE LOCAL
AGREEMENT CONTINUED UNTIL MAY 4, 1979, THE EFFECTIVE DATE OF THE MASTER
LABOR RELATIONS AGREEMENT. SEE RESPONDENT'S BRIEF AT PAGES 5-6.
HOWEVER, SECTION 202.2(H)(8) OF THE RULES OF THE ASSISTANT SECRETARY FOR
LABOR-MANAGEMENT RELATIONS, UNITED STATES DEPARTMENT OF LABOR, 29 C.F.R.
202.2(H)(8) PROVIDED: "UPON THE ISSUANCE OF A CERTIFICATION ON
CONSOLIDATION OF UNITS, THE TERMS AND CONDITIONS OF EXISTING AGREEMENTS
COVERING THOSE UNITS EMBODIED IN THE CONSOLIDATION SHALL REMAIN IN
EFFECT, EXCEPT AS MUTUALLY AGREED BY THE PARTIES, UNTIL A NEW AGREEMENT
COVERING THE CONSOLIDATED UNIT BECOMES EFFECTIVE."
/8/ THE POST-HEARING BRIEF RECEIVED FROM COUNSEL REPRESENTING THE
GENERAL COUNSEL WAS ACCOMPANIED BY A REQUEST PROPOSING NUM.ROUS
CORRECTIONS IN THE HEARING TRANSCRIPT. THE BRIEF RECEIVED FROM COUNSEL
FOR THE RESPONDENT REQUESTED A RETRANSCRIPTION OF THE HEARING RECORD
BECAUSE OF THE "POOR QUALITY" OF THE TRANSCRIPT. THE LATTER REQUEST WAS
DENIED; HOWEVER, COUNSEL REPRESENTING THE RESPONDENT WAS PROVIDED WITH
AN OPPORTUNITY TO REQUEST TRANSCRIPT CORRECTIONS. THEREAFTER, COUNSEL
REPRESENTING THE RESPONDENT FAILED TO FILE A TIMELY REQUEST TO CORRECT
THE RECORD. UNDER AUTHORITY PROVIDED IN SECTION 2423.19(R) OF THE
REGULATIONS, 5 C.F.R. 2423.19(R), THE REQUEST FILED BY COUNSEL FOR THE
GENERAL COUNSEL TO CORRECT THE RECORD IS HEREBY MADE A PART OF THE
RECORD AND IS GRANTED IN ALL RESPECTS. HOWEVER, A LARGE NUMBER OF
ADDITIONAL ERRORS IN THE HEARING TRANSCRIPT WERE NOTED. THESE
ADDITIONAL ERRORS ARE REFLECTED IN AN APPENDIX MADE A PART OF THIS
DECISION. CORRECTIONS REFLECTED IN THE APPENDIX ARE ALSO APPROVED.
FOLLOWING TIMELY RECEIPT OF RESPONDENT'S POST-HEARING BRIEF COUNSEL
FOR THE GENERAL COUNSEL MOVED TO STRIKE RESPONDENT'S POST-HEARING BRIEF
ON THE GROUND THAT A COPY THEREOF WAS NOT SERVED ON COUNSEL FOR THE
GENERAL COUNSEL. IT APPEARED FROM MOTION PAPERS SUBMITTED BY COUNSEL
FOR THE GENERAL COUNSEL THAT A COPY OF RESPONDENT'S BRIEF WAS IN FACT
TRANSMITTED TO THE REGIONAL DIRECTOR, AND FURTHER THAT COUNSEL FOR THE
GENERAL COUNSEL DID ACTUALLY HAVE A COPY OF THE BRIEF AVAILABLE TO HIM
ON FEBRUARY 14, 1980, THE LAST DAY OF THE PERIOD PROVIDED FOR THE FILING
OF POST-HEARING BRIEFS. UNDER THE CIRCUMSTANCES OUTLINED, THERE WOULD
BE NO BASIS FOR GRANTING THE MOTION TO STRIKE RESPONDENT'S BRIEF.
HOWEVER, PORTIONS OF THE MOTION TO STRIKE RESPONDENT'S BRIEF, MAY BE
CONSTRUED AS A REPLY TO THE POST-HEARING BRIEF FILED BY COUNSEL FOR THE
RESPONDENT. THESE PORTIONS HAVE NOT BEEN CONSIDERED, AND ARE NOT DEEMED
PART OF THE RECORD. SEE SECTION 2423.25 OF THE REGULATIONS, 5 U.S.C.
2423.25.
/9/ IT WAS THE PRACTICE TO COMMUNICATE APPROVAL OF REORGANIZATIONS
INFORMALLY, AND THEREAFTER TRANSMIT FORMAL APPROVAL TO THE UNIT
INVOLVED. IN THIS CASE THE FORMAL APPROVAL WAS DATED APRIL 27, 1979
(RESPONDENT EXHIBIT 13).
/10/ IN RESPONSE TO AN INQUIRY CONCERNING HOW PRICE KNEW THAT ROSS
HAD THE PLAN, PRICE WAS VAGUE CONCERNING HIS ACQUISITION OF KNOWLEDGE
RELATIVE TO THE INVOLVEMENT OF ROSS IN THE FORMULATION OF THE PLAN (TR.
210-211).
/11/ ROSS WAS UNABLE TO RECALL THE SPECIFIC DATE OF THE CONVERSATION
WITH PRICE; HOWEVER, COUNSEL FOR THE GENERAL COUNSEL ACKNOWLEDGED THAT
THE TESTIMONY OF PRICE RELATING TO THE DATE OF THE MEETING WAS ACCURATE
(TR. 357-358).
/12/ THERE IS AT LEAST SOME INDICATION IN THE RECORD THAT PRICE WAS
ALLOWED TO MAKE COPIES OF PERTINENT PORTIONS OF THE PLAN ON THE SAME DAY
(TR. 176).
/13/ ALTHOUGH THERE WAS NO SHOWING THAT PRICE RECEIVED EXACT DETAILS
OF INFORMATION CONCERNING THE REORGANIZATION AT EARLIER STAFF MEETINGS
OR IN OFFICE DISCUSSIONS, THE SUM TOTAL OF DIRECT AND CIRCUMSTANTIAL
EVIDENCE LEADS TO THE CONCLUSION THAT PRICE HAD SPECIFIC KNOWLEDGE OF
THE PROPOSED REORGANIZATION OF THE DIRECTORATE OF METROLOGY AS EARLY AS
THE END OF MARCH 1979.
/14/ THE RECORD DID INDICATE THAT PRICE WOULD HAVE BEEN SOMEWHAT
RELUCTANT TO TAKE THE INITIATIVE IN THE MATTER IN THE ABSENCE OF A
GRIEVANCE FILED BY A BARGAINING UNIT MEMBER, THAT HE DID NOT WISH TO
QUESTION THE AUTHORITY OF MANAGEMENT, AND FURTHER THAT THIS WAS PRICE'S
FIRST EXPERIENCE WITH A REORGANIZATION. HOWEVER, PRICE MADE IT CLEAR
THAT IF HE HAD DISCERNED AN ADVERSE IMPACT HE WOULD HAVE QUESTIONED
MANAGEMENT'S PLAN TO IMPLEMENT THE REORGANIZATION.
/15/ AS OF THE CLOSE OF THE HEARING THIS GRIEVANCE WAS PENDING
DISPOSITION UNDER THE ARBITRATION PROVISIONS OF THE COLLECTIVE
BARGAINING AGREEMENT.
/16/ THE RULE IS SUBJECT TO THE PROVISO THAT NEGOTIATIONS ON
"PROCEDURES" AND "IMPACT" MAY NOT OPERATE TO PREVENT MANAGEMENT FROM
EXERCISING SUCH MANAGEMENT RIGHTS. AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE
EXCHANGE, FORT DIX, NEW JERSEY, CASE NO. 0-NG-20, 2 FLRA NO. 16, (NOV.
29, 1979), REPORT NO. . . . ; NATIONAL TREASURE EMPLOYEES UNION, CASE
NO. 0-NG-3, 2 FLRA NO. 30, (DEC. 13, 1979), REPORT NO. . . . .
/17/ THE FACT THAT OTHER OFFICIALS OF LOCAL 2221 DID NOT RECEIVE
NOTICE OF THE REORGANIZATION, OR THE FACT THAT OTHER UNION OFFICIALS
BARGAINED WITH THE RESPONDENT CONCERNING OTHER UNRELATED SUBJECTS,
WOULD
NOT, AS SUGGESTED BY COUNSEL FOR THE GENERAL COUNSEL, COMPRISE A BASIS
FOR FINDING THAT NOTICE TO PRICE WAS LESS THAN ADEQUATE.
/18/ THE FACT THAT CERTAIN INDIVIDUALS SELECTED FOR LATER TRANSFER
INTO THE NEW LABORATORY SUPPORT OFFICE WERE IDENTIFIED AT THE STAFF
MEETING WOULD NOT INDICATE THAT THE PLAN WAS IMPLEMENTED ON THE DATE OF
THE STAFF MEETING AS SUGGESTED IN THE BRIEF FILED ON BEHALF OF THE
UNION. THE RECORD IS CLEAR THAT REFERENCE TO THE SUBJECT OF THE
REORGANIZATION AT THE OPERATIONS BRANCH STAFF MEETING WAS NOT AN
EFFECUATION OF THE REORGANIZATION PLAN. IT WAS MERELY A DISCUSSION OF A
SUBJECT OF CONCERN TO THE OPERATIONS BRANCH, THE UNIT CHARGED WITH THE
RESPONSIBILITY FOR DESIGNING THE PLAN. IT WAS NOT A FORMAL NOTICE OF A
FINAL CHANGE. IMPLEMENTATION, INCLUDING ADMINISTRATIVE CHANGES IN JOB
ASSIGNMENTS DID NOT OCCUR UNTIL APRIL 23, 1979. MOREOVER, AS PREVIOUSLY
NOTED, IT CLEARLY APPEARED THAT PRICE HAD KNOWLEDGE OF THE PROPOSED
REORGANIZATION AS EARLY AS THE END OF MARCH 1979. WHETHER THE PLAN WAS
IMPLEMENTED ON APRIL 23, 1979, OR ONE WEEK PRIOR THERETO, THE FACT
REMAINS THAT PRICE HAD PRIOR KNOWLEDGE OF THE PROPOSED REORGANIZATION
AND KNOWLEDGE THAT EMPLOYEE REASSIGNMENTS WOULD BE INVOLVED. THIS WAS
SUFFICIENT INFORMATION UPON WHICH TO BASE A BARGAINING REQUEST, A
REQUEST FOR INFORMATION, OR A REQUEST FOR TIME TO STUDY THE PLAN.
HOWEVER, IMPLEMENTATION WAS ALLOWED TO OCCUR. BECAUSE OF THESE
CIRCUMSTANCES AUTHORITIES CITED BY COUNSEL FOR THE GENERAL COUNSEL FOR
THE PURPOSE OF TAKING ADVANTAGE OF AN EARLIER IMPLEMENTATION DATE, ARE
INAPPOSITE.