18:0475(62)CA - NG Bureau and NAGE -- 1985 FLRAdec CA
[ v18 p475 ]
18:0475(62)CA
The decision of the Authority follows:
18 FLRA No. 62
NATIONAL GUARD BUREAU
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES
Charging Party
Case No. 3-CA-2586
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record in this case, including the
stipulation of facts, accompanying exhibits, and the parties'
contentions, the Authority finds:
It is alleged that the National Guard Bureau violated section
7116(a)(1), (5) and (8) of the Federal Service Labor-Management
Relations Statute (the Statute) /1/ by instituting substantive changes
in conditions of employment without affording the Charging Party,
National Association of Government Employees (NAGE), reasonable time to
present its views and recommendations regarding the changes pursuant to
its previously granted national consultation rights, as required by
section 7113 of the Statute. /2/
At all times material herein, NAGE has been granted national
consultation rights by the National Guard Bureau under section 7113 of
the Statute. On June 11, 1981, the National Guard Bureau notified NAGE
that on June 12, 1981, it would issue a letter entitled "Policies for
Active Duty Guard/Reserve (AGR) Program, FY 81-Manpower Management
Guidance No. G-81," announcing its policy for conversion of technician
positions to Active Duty/Reserve. The National Guard Bureau on the next
day, June 12, 1981, issued the policy announcement. The policy
announcement was addressed to the Adjutants General of all states,
Puerto Rico, the Virgin Islands, Guam, and the District of Columbia, and
provides, inter alia, for the conversion of vacant Civilian Military
Technician positions to Active Duty Guard/Reserve (AGR) positions; for
the voluntary conversion of incumbent Civilian Military Technician
positions to AGR positions; and for the gains in the number of military
AGR positions to be offset by the reductions in the number of civilian
technicians.
The National Guard Bureau and NAGE stipulated that the National Guard
Bureau has a past practice of providing NAGE with at least two weeks
advance notice regarding such proposed changes, pursuant to NAGE's
national consultation rights.
Section 7113(b)(1) of the Statute provides that any labor
organization having national consultation rights is entitled to receive
advance notice of any substantive changes in conditions of employment
proposed by the agency and to be given a reasonable period of time to
present its views and recommendations regarding the changes. If such
views and recommendations are presented, they must be considered by the
agency before it takes final action.
The Authority finds that the June 12, 1981 policy announcement issued
by the National Guard Bureau constituted a substantive change in
personnel policy, as employees became subject to displacement from the
collective bargaining unit inasmuch as the AGR positions created by the
conversion of civilian technician positions would be military positions
which are excluded from coverage under the Statute by section
7103(a)(2)(B)(ii). /3/ Since NAGE had national consultation rights, the
National Guard Bureau was obligated to comply with the provisions of
section 7113(b)(1) prior to finalizing its proposed changes. Thus,
after notifying NAGE on June 11, 1981, of its intention to issue a
policy announcement, the National Guard Bureau was required to provide
the Union with reasonable time to present its views and recommendations
on the proposed new policy and to consider such views and
recommendations before issuing the policy announcement. This it failed
to do. Rather, the National Guard Bureau notified NAGE of its intention
to issue the letter announcing its policy on the conversion of employee
positions only the day before the policy announcement was issued. The
Authority finds that the one day between notice and issuance of the
policy announcement does not satisfy the requirement of affording NAGE a
reasonable period of time to present its views and recommendations,
noting in particular that the record does not reveal an emergency or
other compelling reason for immediate action and that the National Guard
Bureau admits that it had a past practice of providing NAGE with at
least two weeks advance notice regarding such changes. Therefore, the
Authority concludes that the National Guard Bureau failed to comply with
its obligation to consult under 7113(b)(1) and thus violated section
7116(a)(1) and (5) of the Statute. See General Services Administration,
6 FLRA 430 (1981). /4/
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that the National Guard Bureau shall:
1. Cease and desist from:
(a) Failing to inform the National Association of Government
Employees (NAGE), pursuant to NAGE's national consultation rights under
section 7113 of the Statute, of proposed substantive changes in
conditions of employment, and failing to provide NAGE with a reasonable
period of time to present its views and recommendations regarding the
proposed changes.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Provide the National Association of Government Employees,
pursuant to its national consultation rights under section 7113 of the
Statute, a reasonable period of time to present its views and
recommendations concerning procedures pertaining to the conversion of
technician positions to Active Duty/Reserve, and thereafter comply with
the requirements of section 7113(b)(2) of the Statute.
(b) Post at all of its facilities copies of the attached Notice on
forms to be furnished by the Federal Labor Relations Authority. Upon
receipt of such forms they shall be signed by the Director, Army
National Guard, or a designee, and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including bulletin
boards and other places where notices to employees are customarily
posted. Reasonable steps shall be taken by the National Guard Bureau to
insure that such notices are not altered, defaced, or covered by any
other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, in writing, within 30 days of the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., June 19, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
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 inform the National Association of Government
Employees (NAGE), pursuant to NAGE's national consultation rights under
section 7113 of the Statute, of proposed substantive changes in
conditions of employment, or fail to provide NAGE with a reasonable
period of time to present its views and recommendations regarding the
proposed changes.
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
Statute.
WE WILL provide the National Association of Government Employees,
pursuant to its national consultation rights under section 7113 of the
Statute, a reasonable period of time to present its views and
recommendations concerning procedures pertaining to the conversion of
technician positions to Active Duty/Reserve, and thereafter comply with
the requirements of section 7113(b)(2) of the Statute.
(Agency)
Dated: By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region III, Federal Labor Relations Authority, whose address
is: P.O. Box 33758, 1111 18th Street, N.W., Room 700, Washington, D.C.
20033-0758, and whose telephone number is: (202) 653-8507.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1), (5) and (8) provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
* * * *
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter;
* * * *
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/2/ Section 7113 provides in pertinent part:
Sec. 7113. National consultation rights
(a)(1) If, in connection with any agency, no labor organization
has been accorded exclusive recognition on an agency basis, a
labor organization which is the exclusive representative of a
substantial number of the employees of the agency, as determined
in accordance with criteria prescribed by the Authority, shall be
granted national consultation rights by the agency. National
consultation rights shall terminate when the labor organization no
longer meets the criteria prescribed by the Authority. Any issue
relating to any labor organization's eligibility for, or
continuation of, national consultation rights shall be subject to
determination by the Authority.
(b)(1) Any labor organization having national consultation
rights in connection with any agency under subsection (a) of this
section shall--
(A) be informed of any substantive change in conditions of
employment proposed by the agency, and
(B) be permitted reasonable time to present its views and
recommendations regarding the changes.
(2) If any views or recommendations are presented under
paragraph (1) of this subsection to an agency by any labor
organization--
(A) the agency shall consider the views or recommendations
before taking final action on any matter with respect to which the
views or recommendations are presented; and
(B) the agency shall provide the labor organization a written
statement of the reasons for taking the final action.
/3/ While we find this sufficient to establish a substantive change
in conditions of employment, it is also noted that, as the numbers and
types of civilian technician positions for which the technicians who did
not convert to military status would be eligible was substantially
altered and thus admittedly could result in the alteration of job
descriptions, this too would constitute a substantive change in
conditions of employment.
/4/ In view of this conclusion, the Authority finds it unnecessary to
determine whether the National Guard Bureau's conduct also constituted a
violation of section 7116(a)(8) of the Statute. Further, in the
particular facts of this case, including the fact that the June 12, 1981
letter was designed as part of a reprogramming package approved by the
Defense Subcommittee of the House Committee on Appropriations, and in
the absence of a request by the General Counsel or NAGE for a status quo
ante remedy herein, the Authority concludes that no such remedy is
warranted. See March Air Force Base, Riverside, California, 13 FLRA
255, 261 n.14 (1983).