[ v18 p666 ]
18:0666(79)CA
The decision of the Authority follows:
18 FLRA No. 79
DEPARTMENT OF DEFENSE
DEPARTMENT OF THE NAVY
NAVY PUBLIC WORKS CENTER
NORFOLK, VIRGINIA
Respondent
and
TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO
Charging Party
Case No. 4-CA-20279
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that Respondent Navy Public Works
Center (NPWC) had not engaged in the unfair labor practices alleged in
the complaint and recommending dismissal of the complaint with respect
to NPWC. The Judge further found that Respondent Department of the Navy
had engaged in certain other unfair labor practices alleged in the
complaint and recommended that it be ordered to cease and desist
therefrom and take certain affirmative action. Thereafter, Respondent
Department of the Navy filed exceptions to the Judge's Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendations, only to the extent
consistent herewith.
Contrary to the Judge, the Authority finds that Respondent Department
of the Navy did not violate section 7116(a)(1) and (5) of the Statute by
preventing Respondent NPWC from bargaining with the Tidewater Virginia
Federal Employees Metal Trades Council, AFL-CIO, the exclusive
representative of unit employees, regarding a unilateral change in the
method of distributing unit employees' paychecks and earnings
statements. Subsequent to the issuance of the Judge's Decision in this
case, the Authority issued its decision in Federal Employees Metal
Trades Council, AFL-CIO and Department of the Navy, Mare Island Naval
Shipyard, Vallejo, California, 16 FLRA No. 88 (1984), petition for
review filed, No. 85-7039 (9th Cir. Jan. 22, 1985), finding that an
agency's selection of the method of paycheck distribution concerns the
methods and means of performing work within the meaning of section
7106(b)(1) of the Statute /1/ and thus is negotiable only at the
election of the Agency. Thus, the Authority finds that Respondent
Department of the Navy's alleged interference with the bargaining
relationship between NPWC and the Union, by preventing bargaining
concerning a change in the method of paycheck delivery, did not
constitute a violation of section 7116(a)(1) and (5) of the Statute. In
addition, in adopting the Judge's conclusion that the complaint should
be dismissed as to Respondent NPWC, i.e., management at the level of
exclusive recognition, the Authority notes that, in the absence of an
election to do so, there was no duty to bargain over the change in the
method of paycheck delivery. /2/ The Authority further adopts the
Judge's conclusion that the section 7116(a)(7) allegation must be
dismissed. Thus, as found by the Judge, the General Counsel failed to
establish that the Navy regulation herein conflicted with any provision
of the current collective bargaining agreement between NPWC and the
Union. Therefore, the complaint shall be dismissed in its entirety.
ORDER
IT IS ORDERED that the complaint in Case No. 4-CA-20279 be, and it
hereby is, dismissed.
Issued, Washington, D.C., June 21, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
DEPARTMENT OF THE NAVY AND
NAVY PUBLIC WORKS CENTER,
NORFOLK, VIRGINIA
Respondent /3/
and
TIDEWATER VIRGINIA FEDERAL
EMPLOYEES METAL TRADES COUNCIL,
AFL-CIO
Charging Party
Case No. 4-CA-20279
Walter B. Bagby, Esq.
For the Respondents
Thomas E. Rinehart
For the Charging Party
Barbara S. Liggett, Esq., and
Pamela B. Jackson, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO, Administrative Law Judge
DECISION
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
7101, et seq.
Upon an unfair labor practice charge filed by the Tidewater Virginia
Federal Employees Metal Trades Council, AFL-CIO (herein referred to as
the Union) against the Department of the Navy, Navy Public Works Center,
Norfolk, Virginia (herein sometimes jointly referred to as Respondent),
the General Counsel of the Authority, by the Regional Director for
Region IV, issued a Complaint and Notice of Hearing on October 20, 1982
alleging Respondent violated the Statute when it implemented changes in
the manner of distributing paychecks and leave and earnings statements
to employees, contending such conduct patently breached the terms of the
collective bargaining agreement between the Navy Public Works Center and
the Union.
A hearing on the Complaint was conducted on March 14, 1983 at which
time all parties were represented and afforded full opportunity to
adduce evidence, call, examine and cross-examine witnesses and argue
orally. /4/ At the hearing the Complaint was amended to allege that
implementation of the changes also constituted a unilateral change in
terms and conditions of employment.
Upon the entire record in this matter, /5/ including the briefs by
Respondents, the General Counsel which have been duly considered, my
observation of the witnesses and their demeanor and from my evaluation
of the evidence, I make the following:
Findings of Fact
At all times material herein the Union has been the exclusive
collective bargaining representative for various career and career
conditional employees in the Navy Public Works Center, Norfolk, Virginia
(herein referred to as the Public Works Center). The Union and the
Public Works Center are parties to a three year collective bargaining
agreement executed August 5, 1981. Prior thereto, the Union and the
Public Works Center were parties to a collective bargaining agreement
effective August 1978 to August 1981.
On August 12, 1981 the Comptroller of the Navy (NAVCOMPT) sent a
letter to subordinate activities, /6/ including all disbursing offices
serving civilian payroll offices, instructing them that a new standard,
comprehensive leave and earnings statement (LES) would replace the leave
and earnings statement then in use for Navy civilian employees. /7/
Implementation of the new LES was directed to be completed by the end of
the first full pay period in calendar year 1982. Prior to the change
the LES was attached to the employees paycheck. The new LES would be a
separate document enclosed in an envelope which indicated the name of
the employee and was designed to be a "self mailer." The revised LES's
were to be printed separately from payroll checks and provide the
employee with substantially more information regarding leave, earnings
and payroll deduction data.
On October 6, 1981, the Secretary of the Navy issued SECNAV
Instruction 7200.17 to subordinate activities announcing future policy
regarding paydays and methods of payment for all civilian employees.
/8/ The instruction, widely publicized among Navy employees, indicated
that the Secretary of the Navy favored a system of electronic "Direct
Deposit" of paychecks to employee accounts in financial institutions.
/9/ At that time, one-third of the Navy's employees participated in the
direct deposit program and the Instruction set goals for future
increased participation citing benefits of this procedure to employees
and the Navy, including substantial reduction in check preparation
costs. Thus, a 40 percent civilian employee participation goal was set
for October 1982, 45 percent for October 1983, 50 percent for October
1985, 55 percent for October 1987 and 75 percent for October 1990.
Instruction 7200.17 indicated it was Department of the Navy (DON)
policy:
"(1) To distribute civilian pay by PDQ/Direct Deposit or mail
upon entry of all civilian employees hired within DON.
"(2) Where feasible, to discontinue hand delivery of pay and
leave and earnings statements for current civilian personnel. Pay
will be forwarded to a designated financial institution or mailed
to a non-work address. Leave and earnings statements likewise
will be mailed to a non-work address.
"(3) To enhance and accomplish payroll processing to permit the
utilization of the Direct Deposit Program.
"(4) To implement a DON standard civilian payroll system,
including the capability to implement Direct Deposit."
Instruction 7200.17 stated that NAVCOMPT would exercise control and
coordination responsibilities to assure that DON goals would be achieved
and provide "amplifying policy" in this regard.
The Instruction further required that subordinate activities comply
with the instruction and with implementing procedures provided by
NAVCOMPT and be responsible for, inter alia, the following:
"(1) Supporting these DON goals within their activities;
"(2) Coordinating efforts with NAVCOMPT in the promotion of
PDQ/Direct Deposit;
"(3) Supporting central enhancement efforts and accelerate
payroll processing, as necessary, so as to permit utilization of
the PDQ/Direct Deposit program;
"(4) Supporting the establishment of civilian pay distribution
policy by PDQ/Direct Deposit or mail upon entry of all civilian
employees hired by any DON activity on and after 1 October 1982;
"(5) Supporting to the maximum extent possible within current
labor agreement and resource constraints, the discontinuance by 1
October 1982, of hand delivery of pay and leave and earnings
statements for civilian employees through the use of PDQ/Direct
Deposit or mail. Unless activity exception has been granted,
discontinue all hand delivery of pay, and leave and earning
statements for civilian personnel by 1 October 1985;
* * * *
"(7) Reporting to NAVCOMPT, as directed, results of efforts and
progress to achieve these objectives;
"(8) Implementing systems and procedural changes promulgated by
NAVCOMPT; and
"(9) Ensuring that future labor agreements/renewals do not
conflict with the policies reflected herein."
Payroll and disbursing services for the Public Works Center provided
by the Regional Financial Services Department of the Naval Supply Center
(herein referred to as the Supply Center). /10/ The Supply Center
provides payroll and disbursing services for some 60 activities
involving some 18,000 employees, including the approximately 1600 unit
employees at the Public Works Center, on a non-reimbursable basis and
considers itself to have a "customer relationship" with such activities.
While both the Public Works Center and the Supply Center are activities
within the Department of the Navy, they have separate chains of command
to the Secretary of the Navy: the Public Work Center reports to SECNAV
through the Naval Facilities Energy Command and the Supply Center
reports through the Naval Supply Systems Command.
Upon receipt of the NAVCOMPT letter and the SECNAV Instruction,
supra, Supply Center personnel determined that the procedures involved
in producing and distributing the new LES and disbursing payroll checks
would result in more time than previously expended to produce the
documents. /11/ According to Frankie Brinkley, the Supply Center's
Director of Regional Financial Services, previously the LES and paycheck
were printed at the same time. When NAVCOMPT ordered the use of the new
LES, the processing involved printing the LES and paycheck separately
and required six more hours of print time due to the inclusion of
additional information which the new LES's would contain. Thus Supply
Center concluded that it would not be able to continue to disburse
checks by 11:30 a.m. on Thursdays, as had been the longstanding general
practice at least at the Public Works Center, and payday would now have
to be on Fridays. /12/ The Supply Center negotiated on the matter with
the unions representing its employees and notified the Public Works
Center and the other activities that it serviced of its agreements and
what the future distribution system would be at these activities. The
notification, dated November 17, 1981, referred to the August 12, 1981
NAVCOMPT letter, supra, and the October 6, 1981 SECNAV Instruction,
supra, and after setting forth the terms of its distribution agreements
with the unions at the Supply Center, stated, inter alia:
"3. As your payroll and disbursing activity, NSC Norfolk must
also require the same pay distribution system for your activity.
It is suggested that union officials and employees of your
activity be advised of this change as quickly as possible. Within
the next several days, you will receive address cards for each
employee to be used in updating addresses. It is extremely
important that these cards be returned by the date specified in
the forwarding letter. Your servicing Civilian Personnel Office
must be notified to forward a valid address with the SF-50 for
each new employee hired after 10 January 1982. If the PDQ option
is selected, a SF-1189 should be forwarded also. Option cards
will also be forwarded for employees to exercise their individual
option. Since the new LES provides more data than the one
currently in use, training will be provided for the personnel
clerks in your activity.
"4. Individual exceptions for LESs and checks to be mailed to
a work address may be made at the Commanding Officer level, but
should be granted in a judicious manner. (SECNAV Instruction
7200.17) provides guidelines for granting exceptions. Any
questions relating to implementation of this change should be
directed to Frankie Brinkley."
On December 4, 1981 the Supply Center notified its employees of the
new pay and LES arrangements through an agency information publication
called the "Supply Chest." The December "Supply Chest" revealed that
beginning with the last payday of January 1982 employees then currently
on the payroll would be required to select one of the following options
for paycheck distribution:
1. Mailing to a non-work address on Wednesday.
2. Pay transferred to a financial institution using the
electronic PDQ system on Wednesday.
3. Paychecks distributed on the job after 3:30 p.m. on Friday.
This option would not be available to those who begin employment
in January 1982 and would cease to be an available method of
distribution for any employee after October 1, 1985. Regardless
of the option chosen for paycheck distribution, the newly revised
LES's would be delivered by mail. /13/
The Union was unaware that the Navy had effectuated a change in its
payroll and LES distribution prior to the publication of the December 4
"Supply Chest." /14/ After obtaining a copy of the "Supply Chest" the
Union brought the document to the attention of the Public Works Center's
Civilian Personnel Department and inquired whether the changes announced
in the "Supply Chest" would also be applicable at the Public Works
Center. Berton Owens, Labor Relations spokesman for the Public Works
Center, ascertained that this was the case and so advised the Union
which requested a meeting on the matter.
Representatives of the Union and management met to on or about
December 8, 1981. /15/ At the meeting Owens "confirmed" that in January
1982 the Supply Center intended to implement the changes as set out in
the "Supply Chest" above, and the changes would affect Public Works
Center employees. Owens contended that the Public Works Center did not
have control over the matter, explaining that the change had been
directed by the Supply Center and the Public Works Center Commanding
Officer had no authority to order the Supply Center to "cease and
desist." Owens suggested that the situation probably presented a
"compelling need" question and should be referred to Washington. The
Union responded that in such a case it would be "burning up the lines to
Washington." Owens informed the Union that he would be happy to talk
with the Union as to the impact of the change on employees but he could
not negotiate with the Union on the implementation of the change itself.
/16/ The Union representatives indicated they were concerned with the
adverse impact the mailing of checks and LES's might have on the
employees who had not been totally honest with spouses about earnings
over a period of time; Friday paydays precluding a long week-end
vacation; the possibility of mail thefts; computer breakdowns and
delays in PDQ procedures; and how moving the regular Thursday payday to
Friday would disrupt family budgeting which was geared to a Thursday
payday. Further, the Union, relying on Article 24, Section 9 of the
parties' collective bargaining agreement took the position that
procedures concerning employees' pay had been previously negotiated and
should remain as they were. /17/ Management's response was that the
contract language merely meant to reflect management's commitment to
distribute payroll checks promptly when received, as had been their
practice. /18/ Owens indicated that in light of the Union's objections
he would contact the Supply Center to see what accommodations could be
made and get back to the Union.
Owens thereafter contacted the Supply Center to relay his problems
with the Union. Owens also contacted the Southern Field Division of the
Navy Civilian Personnel Command to "prevail on them to get a delay in
the thing because (he) felt (they) were going to have difficulty in
negotiating on the impact, if nothing else."
On December 17, 1981 Respondent and the Union met again to discuss
the change. Owens, having been in contact with the Supply Center,
indicated it was the Supply Center's position that although the Public
Works Center was "pushing" the Supply Center to continue the old
practice entirely, there was "no room" to talk about the change itself
and the LES change would have to be put into effect even if hand
delivery of checks continued. The Union asked if there might be someway
to continue with the old system mechanically. Owens described the new
LES format and explained the difficulty of sending it to the Public
Works Center for Thursday hand delivery since machine processing of both
checks and LES's was involved. Thus, Owens explained, additional
processing would be required if the system as programmed was not
followed. Owens further related that it was the Supply Center's
position that the LES change appeared inevitable and the then current
system of check delivery could only be extended for a limited time since
there only existed a 90-day supply of checks in the old format. The
Union was unwilling to accept any system other than the current one,
relying again on the language of Article 24, Section 9 of the contract.
Owens did not change his position, acknowledged that "problems" would
exist, but was willing to discuss the impact on employees and suggested
that the parties send a joint letter to employees to get their current
addresses in the event the January implementation date could not be
avoided. The Union's representatives responded that they would check
with their Washington office on this and the meeting ended.
The parties met again on December 21, 1981. At this meeting the
Union rejected the joint letter proposal and wanted a commitment that
the Thursday payday and LES delivery would continue. Owens indicated
that while he could negotiate on the impact of the change, the Supply
Center was not giving him any flexibility to negotiate on the change
itself which would go ahead as planned. Owens further related that he
received a concession from the Supply Center that paychecks would be
available for distribution at noon on Friday rather than 3:30 p.m. as
originally planned. However, the Union remained adamant that the checks
and LES's continued to be delivered at the worksite on Thursdays.
Another meeting was held on January 6, 1982. Owens announced that he
had been given additional time to negotiate with the Union on the impact
and implementation of the change, and hand delivery of paychecks and
LES's to the worksite would continue during that time. However, Owens
made it clear that the Public Works Center was not in control of the
situation and could not negotiate on the change in the system of pay and
LES delivery. Owens also indicated that the Supply Center now
determined that the LES's could be assembled for hand delivery at the
worksite. The Union again insisted that Article 24, Section 9 of the
contract required the continuation of the pay practice as it was and
Owens maintained his position that the Union was misinterpreting the
contract. According to Owens the employer did not have control over the
payday; they were "at the mercy" of the Supply Center; and the
contract clause in question merely required that when the Public Works
Center got the checks, they would be delivered promptly. The Union
requested a meeting with Frankie Brinkley, the Supply Center's Director
of the Regional Financial Services Department to pursue retaining the
Thursday payday and the meeting adjourned.
On January 8, 1982 Owens issued an "All Hands Bulletin" to Public
Works Center employees which stated that there would be no change in pay
procedures during January 1982. The "All Hands Bulletin" indicated that
discussions concerning changes in how and when employees would be paid "
. . . started as the result of computer program changes at the Naval
Supply Center which prepares our payroll and payrolls for 68 other
activities." The announcement set forth the "Current Status" on the
matter as follows:
"1. Since the Metal Trades Council has requested impact
bargaining the change planned by NSC has been postponed and may be
modified as it applies to this Center. Bargaining is now going
on.
"2. Until further notice you will receive your paycheck and
leave and earnings statement just as you have in the past. The
leave and earnings statement will be in a different format. There
may be a few hours delay caused by new paperwork, but we plan to
continue Thursday paydays until you are further advised."
Director Brinkley, Owens and representatives of the Union met on
January 11, 1982. /19/ At this time the Union asked Brinkley if the
Thursday payday could be retained. Brinkley stated it could not due to
the added computer time and high costs for overtime pay which would be
required to maintain a Thursday payday at the Public Works Center.
Brinkley responded to other Union questions and described the new
standardized, computerized pay procedures in detail and explained the
advantages of the system to employees and the government. Brinkley
advised that because of the "flimsy" nature of the new LES's, they would
be mailed to an employee's home or non-work address even though the
employee might opt to receive pay at the worksite. Brinkley indicated
that at the almost 60 other activities serviced by the Supply Center
employees were given the choice of hand versus direct deposit delivery
and very few employees were selecting hand delivery and accordingly,
since the Union didn't know how the employees felt, they didn't
represent the employees. The Union countered that the employees at the
other activities were merely taking the lesser of two evils when making
their selection. Brinkley stated that the Supply Center had worked out
its problems with its union and she had neither the time nor inclination
to deal with unions at some 60 activities on the subject. Brinkley
further stated that she was working on a "compelling need" argument for
the Navy relative to the matter.
On January 28, 1982, Joshua Hardy, Senior Labor Advisor for the
Public Works Center and a Assistant Labor Advisor, and Owens met with
Union representatives to discuss the change. Hardy advised the Union
that the time allotted to the Public Works Center by the Supply Center
"to get on with bargaining and reach an accord" was rapidly running out.
Hardy indicated that the changes were inevitable and the Union should
learn to live with changes. The Union again stated its position that
the contract covered pay procedures and suggested that a Thursday payday
could be retained by renting Post Office boxes and having managers
personally pick up the checks for the Supply Center. The Union
indicated a willingness to reopen the contract for negotiations on the
matter if negotiations included an unrelated subject regarding the
employer's providing tools to employees. The offer was not taken
seriously by Hardy and the discussion ended without agreement.
Thereafter, Respondent concluded that the parties were at impasse and
on February 2, 1982 sent the Union a letter indicating that changes in
pay procedures were going forward. The letter, after referring to
having previously "provided for a continuation of hand delivery of
checks and LES's . . . on a short term basis to accommodate the (Public
Works Center's) need for time to engage in bargaining with the Council
over a change in a condition of employment," stated, inter alia:
"4. Council should be aware that since PWC received its
payroll and disbursing services from the NSC on a non-reimbursable
basis, PWC is in no position to make a decision as to what day and
in what manner our employees are to be paid. That decision is
reserved to the head of the activity which provides the service,
NSC Norfolk.
"5. As of this date, officials at PWC have met with the
Council Executive Committee on 6 occasions . . . to bargain on the
impact of the pending change in paying civilian employees. The
PWC is aware of the MTC position that there should be no change in
civilian pay practices until the existing agreement between the
parties . . . comes up for renegotiations in 1984, and that
separate ULP charges against PWC and the Secretary of the Navy
over this matter are currently before Region IV of the Federal
Labor Relations Authority.
"6. PWC is on notice from NSC that the move from Thursday to
Friday delivery of checks for civilian employees is imminent. To
facilitate the changeover, notice is hereby given that PWC plans
to distribute the employee option forms to employees during the
weeks of 22 February 1982. This will afford each employee an
opportunity to indicate their preference of the options described
in paragraph 2 above by which they will be paid in the future.
"7. . . . officials of PWC will remain available to meet with
the Council and bargain, upon request, concerning this matter.
Since there have been no specific proposals proffered by the
Council other than to maintain the status quo, we would
particularly welcome suggestions which would lessen any adverse
impact of the proposed changes."
The parties did not engage in any further bargaining on the matter
and sometime during the last week of February 1982 the Public Works
Center notified its employees by a bulletin that pay procedures would be
revised beginning with the pay period ending April 3, 1982. The
bulletin indicated, inter alia, that employees had options identical to
those set out in the December 4, 1981 Supply Center "Supply Chest"
notification to its employees, supra. However, in a subsequent bulletin
dated February 25, 1982 the Public Works Center informed employees pay
procedures previously announced would be revised to provide that checks
would be distributed at the worksite prior to 3:00 p.m. instead of after
3:30 p.m. on Fridays and upon request, LES's would be delivered to the
worksite rather than being mailed to a non-work address. The changes
were implemented as scheduled. /20/
Discussion and Conclusions
The Alleged Breach of Contract
Counsel for the General Counsel alleges that Respondent Public Works
Center obligated itself to maintain the procedures concerning the
distribution of paychecks and LES's by the terms of Article 24, Section
9 of the collective bargaining agreement and to change those procedures
without the express consent of the Union constituted a patent breach of
the agreement in violation of section 7116(a)(5) and (1) of the Statute,
and, under the circumstances herein, a violation of section 7116(a) (7)
as well. /21/ Respondent denies that such an obligation flows from
Article 24, Section 9 and contends that the clause only requires it to
continue its past practice of promptly distributing paychecks when they
were received from the Supply Center.
I find that the evidence fails to support the General Counsel's
contention in this regard. The wording of the clause itself is open to
varying interpretations. However, Respondent's witnesses testified
without contradiction that during contract negotiations involving this
clause, concern centered on maintaining a Thursday payday. There is no
evidence that other matters were under consideration when this clause
was discussed. Further, the same testimony reveals that Respondent
clearly indicated to the Union that by the execution of this article it
was only binding itself to continue doing what it had done in the past:
promptly distributing paychecks when it received them from the Supply
Center. Accordingly, since I find the underlying meaning of the article
is not as urged by the General Counsel, I conclude the General Counsel
has not sustained its burden of proof and reject the contention that a
patent breach of contract occurred. Therefore, I recommend the
allegation that Respondent violated the Statute in this regard be
dismissed.
Other Contentions
Counsel for the General Counsel also contends that Respondent
unilaterally changed the practice regarding distribution of payroll
checks and leave and earnings statements and thereby failed and refused
to bargain in good faith with the Union. Essentially, Counsel for the
General Counsel alleges that Respondent refused to bargain with the
Union over the substance of the change and, when it effectuated the
change in these circumstances, Respondent violated section 7116(a)(1)
and (5) of the Statute. More particularly, Counsel for the General
Counsel alleges that: (1) Respondent Department of the Navy violated
the Statute by directing and requiring the Public Works Center, through
the conduct of the Supply Center, DON's agent, to violate its collective
bargaining obligation and implement the change and; (2) to the extent
that Respondent Public Works Center retained discretion with respect to
pay procedure changes, it also committed an unfair labor practice by
implementing the changes.
In its brief, Respondent contends that the Department of the Navy,
(Secretary of the Navy) did not violate the Statute by the issuance of
SECNAVINST 7200.17, arguing that: (1) the method of paycheck
distribution concerns a method of performing the work of NAVCOMPT and
therefore constitutes the exercise of a reserved right protected by
section 7106(b)(1) of the Statute; /23/ (2) pursuant to Section 7118 of
the Statute the unfair labor practice charge was untimely filed since
the SECNAV Instruction issued on October 6, 1981, the Union had prior
notice through receipt of a proposed draft of the Instruction sometime
before June 22, 1981 and the charge was not filed until May 6, 1982,
more than six months later; /23/ (3) the Instruction does not require
any conduct which would violate the Statute; (4) requiring newly hired
employees to be governed by the new mail distribution policy does not
change or alter any established pay distribution policy for any unit
employee.
Respondent further denies that the Public Works Center violated the
Statute contending: (1) the dispute herein involves a question of
"compelling need" and accordingly the procedures established in section
7117 of the Statute rather than the unfair labor practice procedures
should have been utilized; (2) substance and impact and implementation
bargaining on the proposed changes in fact took place and implementation
occurred only after impasse; (3) no change occurred which materially
and substantially affected bargaining unit employees and therefore, no
obligation to bargain existed; (4) the Public Works Center had no
choice but to ministerially follow the provisions of SECNAVINST 7200.17
and therefore cannot be held liable for any alleged refusal to bargain;
and (5) the Public Works Center had no control over the computerized
payroll system at the Supply Center, "a separate and distinct activity,"
which precipitated the change and therefore cannot be held accountable
for the changes.
There is no contention that the distribution of paychecks and LES's
is not a matter concerning terms and conditions of employment. Indeed,
the Public Works Center in its February 2, 1982 letter to the Union,
supra, expressly acknowledge the fact. In any event, in agreement with
the findings and conclusions of Administrative Law Judge William B.
Devaney in United States Department of Defense, Department of the Army,
McAlester Army Ammunition Plant, Case No. 6-CA-1041, OALJ-82-77, April
30, 1982, at 22, I find that matters concerning the distribution of
paychecks and LES's are conditions of employment within the meaning of
the Statute. See also the decisions of Administrative Law Judge Eli
Nash, Jr. in Department of the Navy, Office of the Secretary
(Washington, D.C.) and Naval Underwater Systems Center (Newport, Rhode
Island), Case Nos. 1-CA-30010, 1-CA-30011, OALJ-83-138, September 29,
1983, and Department of the Navy, Washington, D.C., Case No. 9-CA-30108,
OALJ-83-140, September 30, 1983.
However, Respondent does contend that the manner of paycheck
distribution is a reserved right of management within the meaning of
section 7106(b)(1) of the Statute. Respondent's theory is that the
Secretary of the Navy when acting through the Comptroller of the Navy
exercised DON's reserved right in designing and developing financial
systems and procedures. Respondent equates such activity to determining
the "technology, methods and means of performing work." Thus, according
to Respondent, the decision to effectuate the change was not a
bargainable matter since Respondent had not elected to bargain on the
matter.
This contention is without merit. The Authority held in American
Federation of State, County and Municiple Employees, AFL-CIO, Local
2477, et a., 7 FLRA 578 at 582, 583 (1982) that "the technology . . . of
performing work" as used in the Statute "means the authority of the
Agency to determine the technical method in accomplishing or furthering
the performance of the Agency's work." In that case the Authority went
on to hold that in order to constitute the technology of performing
work, the activities in question had to be more than merely incidental
to the performance of the Agency's work. Id at 584, 587, 588. In a
later case, the Authority found that a union's bargaining proposal did
not conflict with management's reserved authority to determine the
technology methods, and means in accomplishing or furthering the
performance of an agency's work where it was not shown, nor did it
otherwise appear, that the matter under consideration was "principally"
or "directly" related to the performance of the agency's work. American
Federation of Government Employees, AFL-CIO, Local 3525 and United
States Department of Justice, Board of Immigration Appeals, 10 FLRA 61
(1982) at 64. See also National Treasury Employees Union, Chapter 6 and
Internal Revenue Service, New Orleans District, 3 FLRA 747 (1980).
In the case herein, clearly the manner of distribution of paychecks
and leave and earnings statements is not concerned with the technical
method in accomplishing or furthering the performance of the Department
of the Navy's work nor principally or directly related to the work of
the Agency. Accordingly, I conclude that the distribution of paychecks
and LES's is not a matter within management's reserved authority within
the meaning of "the technology methods, and means of performing work" as
set forth in section 7106(b)(1) of the Statute. Cf. Internal Revenue
Service, Chicago, Illinois, 9 FLRA No. 73 (1982), rev. on other grounds,
717 F.2d 1174 (7th Cir. 1983).
I further reject Respondent's contentions that the unfair labor
practice charge as applicable to the Department of the Navy was untimely
filed. It is true the Instruction 7200.17 (October 6, 1981) issued more
than six months prior to the filing of the charge on May 6, 1982, as was
the NAVCOMPT letter (August 12, 1981). However, Counsel for the General
Counsel contends it was not the promulgation, but the enforcement or
implementation of the SECNAV Instruction (and I assume the NAVCOMPT
letter), through the actions of the Public Works Center and the Supply
Center, which violated the Statute. Accordingly, there being no action
of the Department of the Navy alleged to violate the Statute which lies
more than six months before the filing of the charge on May 6, 1982,
Respondent's position is not well taken.
Further, since the General Counsel's theory of violation with regard
to the Department of the Navy is based upon the actions of the Supply
Center as an agent of the Department and not any independent action of
the Department, I find the question of whether SECNAV Instruction
7200.17 required any subordinate body to take any action which would
violate the Statute to be immaterial to a resolution of the issues
presented herein. It is the conduct of the agent and not the principal
that is the focal point herein. Cf. Department of Defense Dependent
Schools, 11 FLRA No. 100 (1983).
For the same reason I conclude that the question of whether the
Department of the Navy Instruction required newly hired employees to be
governed by the new distribution policy is similarly immaterial.
However, since, according to the General Counsel's theory, if the
Department's alleged agent was in any way responsible for the change and
the Department is responsible for the acts of its agent, then the
question of whether such requirement changed or altered an established
pay distribution policy must be resolved. Respondent's argument in this
regard appears to be that employees hired after the new distribution
policy was effectuated did not have their individual pay practice
changed since they never had a different pay practice. Carrying this
argument to its logical conclusion, any existing condition of employment
(and contract provision?) will not be applicable to new unit employees
and an employer could set their conditions of employment upon hiring as
management saw fit. I find Respondent's contention to be without merit.
Apparently the same argument was made to Administrative Law Judge Eli
Nash, Jr. in Department of the Navy, Office of the Secretary
(Washington, D.C.) and Naval Underwater Systems Center (Newport, Rhode
Island), supra. In that case, (footnote 6, at 14), Judge Nash, in
rejecting respondent's position, found the argument to be novel and
without precedent and " . . . fundamentally at odds with the Statute's
sentiments and conclusions in this regard.
Respondent also contends that, in any event, the change herein did
not "materially and substantially" affect bargaining unit employees. I
reject this contention. In my view when and where an employee receives
a paycheck is a matter which can have a significant impact on an
employee. Thus, household budgets and payment schedules are frequently
governed by when income is received. All employees doubtless do not
have bank accounts to receive PDQ payments and would be required to open
an account in order to have cash made immediately available on a given
payday and incur the attendant costs of maintaining such an account. A
desirable bank might be far removed from an employee. The time and date
of receipt of a paycheck can substantially affect when and where that
check can be converted into needed cash, and home mail delivery may pose
a security problem for an employee. /24/ With regard to receipt of
LES's, the information contained on the document, e.g., amount of
salary, tax, deductions, contributions and leave available, is personal
to that employee and the employee has a substantial interest in where
the LES is delivered in order to control who has the document available
for viewing. Thus, the lack of security of home mail delivery may
present a problem and domestic arrangements and conditions might cause
an employee to prefer that such documents not be delivered to the home,
e.g. marital difficulties, inquisitive family members or others residing
with the employee who have no right to have such information and
destructive and mischievous children.
The Obligation to Negotiate
Turning now to the other issues involved herein, I conclude that
since the manner of distributing paychecks and LES's is a term and
condition of employment, and not a matter within Respondent's reserved
authority as Respondent contends, Respondent Public Works Center was
obligated to negotiate with the Union on the decision to change the
manner of distribution as well as the impact and implementation of the
change. /25/ Clearly there was a failure and refusal to bargain with
the Union on the decision to change, i.e. whether there would be a
change in the practice of (1) distributing paychecks and LES's at the
worksite to all of those employees who so desired and, (2) having the
checks and LES's delivered on Thursdays. Thus, throughout discussions
the Public Works Center's negotiator, Owens, insisted that he could not
negotiate the change in manner and date of distribution, but was willing
to negotiate on the impact and implementation. Further, Owens
repeatedly indicated that the Public Works Center's authority to
negotiate was limited in this situation and the Supply Center was really
the party which controlled what could be negotiated. On January 11,
1982 the Supply Center, convinced that SECNAV 7200.17 and NAVCOMPT
logistically and physically required moving the payday and mailing
paychecks and LES's, indicated to the Union it was not willing to
negotiate on the matter. Supply Center Financial Services Director
Brinkley reenforced this position by flatly stating she had neither time
nor the inclination to deal with unions at some 60 activities on the
subject. In view of the facts herein, I conclude no good faith
bargaining as to the decision on distribution occurred nor was it
invisioned that bargaining on the decision would take place in the
future.
I conclude however that although the exclusive representative, the
Public Works Center was not authorized or empowered to negotiate with
the Union on the decision to change paycheck and LES distribution, the
Public Works Center was authorized to and indeed did negotiate in good
faith with the Union on the impact and implementation of the decision.
However, the organization of the Department of the Navy is such that the
decision herein involved was a matter which the Supply Center had
control and not the activity where recognition resided. The Public
Works Center merely acted as a conduit to relay the Supply Center's
decisions in this matter. Thus I conclude that the Public Works Center
negotiated in good faith to the extent of its authority and the actual
refusal to negotiate on the decision was the act of the Supply Center.
Accordingly, since it is the policy of the Authority to dismiss
complaints against respondent activities in such circumstances, I am
constrained to recommend that the complaint be dismissed against
Respondent Public Works Center. Department of the Interior, Water and
Power Resources Service, Grand Coulee Project, Grand Coulee, Washington,
9 FLRA No. 46 (1982) and Department of Health and Human Services, Social
Security Administration, Region VI, and Department of Health and Human
Services, Social Security Administration, Galveston, Texas District, 10
FLRA No. 9 (1982).
The Department of the Navy is a complex, integrated operation. The
authority and responsibilities of subordinate organizations within the
Department is dictated by the Department, at least with regard to the
activities concerned herein. It is the Department that sets policy and
decided how payroll functions will be administered. It was pursuant to
that policy that the Supply Center was obligated and authorized to act
in this matter and it concluded that bargaining on the decision involved
herein was either nor required or desirable. The Supply Center acted as
agent for the Department and accordingly, I conclude that Department of
the Navy, being responsible for the act of its agent, is ultimately
responsible for the failure and refusal to negotiate found herein. Cf.
Internal Revenue Service, Washington, D.C. and Internal Revenue Service,
Hartford District Office, 4 FLRA 237 (1980). See also Department of
Health and Human Services, Social Security Administration, Region VI,
and Department of Health and Human Services, Social Security
Administration, Galveston, Texas District, 10 FLRA No. 9 (1982) at 28
where the Authority held: " . . . under the Statute, when the
obligation to negotiate is breached by the acts and conduct of agency
management, such a breach may provide the basis for a section 7116(a)(1)
and (5) violation regardless of the location of that agency management
in the agency chain of command."
Compelling Need
Finally, I reject Respondent's contention that this matter should
have been resolved under the "compelling need" procedures set forth in
Section 7117 of the Statute and not the unfair labor practice
procedures. In Defense Logistics Agency (Cameron Station, Virginia), et
al., 12 FLRA No. 86 (1983), the Authority held:
" . . . in exercising its statutory authority to resolve
disputes involving alleged unilateral changes in conditions of
employment where issues of negotia0ility are also raised, the
Authority has promulgated procedures which recognize a labor
organization's right to seek a resolution of the negotiability
issues 0y filing an unfair labor practice charge and a
negotiability appeal and which require the labor organization to
select the forum in which to proceed first. (See sections 2423.5
and 2424.5 of the Authority's Rules and Regulations.) Accordingly
. . . where a labor organization selects the unfair labor practice
forum with regard to alleged unilateral changes in conditions of
employment affecting unit employees resulting from the issuance of
a new regulation or, as here, modification of an existing
regulation, and agency management raises as an affirmative defense
that it refused to bargain on the basis that there is a compelling
need for the regulation in question, the compelling need must
perforce be decided in the unfair labor practice proceeding.
(Footnote omitted). Of course, an agency which raises compelling
need as an affirmative defense in an unfair labor practice
proceeding is required, as it would be in a negotiability
proceeding, to come forward with affirmative support for that
assertion." (Footnote omitted).
In the case herein, the dispute involved as alleged unilateral change
and the Union selected the unfair labor practice forum on which to
proceed. Accordingly, to whatever extent Respondent has raised a
compelling need for the regulations which set into motion the actions
concerned herein, this unfair labor practice proceeding is the proper
vehicle to resolve that question. Further, in order to prevail in this
proceeding Respondent had the obligation to affirmatively support that
assertion. Section 2424.11 of the Authority's Rules and Regulations
sets forth various "illustrative criteria" for determining a compelling
need for an agency's rules and regulations. Section 2424.11 provides:
"A compelling need exists for an agency rule or regulations
concerning any condition of employment when the agency
demonstrates that the rule or regulation meet one or more of the
following illustrative criteria:
"(a) The rule or regulation is essential, as distinguished from
helpful or desirable, to the accomplishment of the mission or the
execution of functions of the agency or primary national
subdivision in a manner which is consistent with the requirements
of an effective and efficient government.
"(b) The rule or regulation is necessary to insure the
maintenance of basic merit principles.
"(c) The rule and regulation implements a mandate to the agency
or primary national subdivision under law or other outside
authority, which implementation is essentially nondiscretionary in
nature."
I find little, if any, record evidence to indicate the existence of a
compelling need within the meaning of the Statute and the Rules and
Regulations for the Respondent's regulations at issue herein.
Therefore, I conclude that Respondent has failed to affirmatively
support its assertion that a compelling need exists for the regulations
involved herein so as to excuse it from its bargaining obligation. Cf.
National Federation of Federal Employees, Local 1332 and Headquarters,
U.S. Army Material Development and Readiness Command, Alexandria,
Virginia, 6 FLRA 361 (1981); American Federation of Government
Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance
Corporation, Chicago Region, Illinois, 7 FLRA 217 (1981); and American
Federation of Government Employees, AFL-CIO, Local 2670, et al., 10 FLRA
No. 19 (1982).
Accordingly, in view of the entire foregoing /26/ I conclude that the
Department of the Navy, by the conduct described herein, violated
section 7116(a)(1) and (5) of the Statute and recommend the Authority
issue the following:
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Department of the Navy shall:
1. Cease and desist from:
(a) Unilaterally changing established conditions of employment
at the Navy Public Works Center, Norfolk, Virginia concerning the
manner of distri0uting paychecks and leave and earnings statements
of employees represented by the Tidewater Virginia Federal
Employees Metal Trades Council, AFL-CIO, the employees' exclusive
collective bargaining representative.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action:
(a) Withdraw and rescind the change concerning the manner of
distributing paychecks and leave and earnings statements of
employees represented by the Tidewater Virginia Federal Employees
Metal Trades Council, AFL-CIO, the employees' exclusive collective
bargaining representative, which became effective with the pay
period ending April 3, 1982 and reinstate the procedures and
policies in effect prior thereto.
(b) Notify the Tidewater Virginia Federal Employees Metal
Trades Council, AFL-CIO, the exclusive representative of the
employees in the Navy Public Works Center, Norfolk, Virginia, of
any intended change in the manner of distributing bargaining unit
employees' paychecks and leave and earnings statements and provide
such exclusive representative an opportunity to request
negotiations with the Navy Public Works Center, Norfolk, Virginia,
or other appropriate management representatives, and bargain in
good faith on any such proposed change in established conditions
of employment.
(c) Post at its Navy Public Works Center, Norfolk, Virginia and
Naval Supply Center, Norfolk, Virginia, copies of the attached
Notice (Appendix A) on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms, they shall be
signed by the Secretary, Department of the Navy, and shall be
posted and maintained by him for sixty consecutive days
thereafter, in conspicuous places, including bulletin boards and
all other places where notices to employees in the Navy Public
Works Center, Norfolk, Virginia and Naval Supply Center, Norfolk,
Virginia are customarily posted. The Secretary, Department of the
Navy shall take reasonable steps to insure that such notices are
not altered, defaced, or covered by other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region IV, 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.
IT IS HEREBY FURTHER ORDERED that the Complaint in Case No.
4-CA-20279, insofar as it alleges a violation of section 7116(a)(7) and
violation of the Statute by Respondent Navy Public Works Center,
Norfolk, Virginia be, and it hereby is, dismissed.
SALVATORE J. ARRIGO
Administrative Law Judge
Dated: January 16, 1984
Washington, D.C.
APPENDIX A
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 change established conditions of employment at the Navy
Public Works Center, Norfolk, Virginia concerning the manner of
distributing paychecks and leave and earnings statements of employees
represented by the Tidewater Virginia Metal Trades Council, AFL-CIO, the
employees' exclusive collective bargaining representative, without
notifying the exclusive representative and providing it with an
opportunity to request negotiations with the Public Works Center or
other appropriate management representatives, concerning the proposed
change.
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 withdraw and rescind the change concerning the manner of
distributing paychecks and leave and earnings statements of employees
represented by the Tidewater Virginia Metal Trades Council, AFL-CIO, the
employees' exclusive collective bargaining representative, which became
effective with the pay period ending April 3, 1982 and will reinstate
the procedures and policies in effect prior thereto.
(Activity or Agency)
Dated: By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region IV, Federal Labor Relations Authority, whose address
is: 1776 Peachtree Street, NW., Suite 501, North Wing, Atlanta, Georgia
30309, and whose telephone number is: (404) 881-2324.
--------------- FOOTNOTES$ ---------------
/1/ Section 7106(b)(1) provides in pertinent part:
Sec. 7106. Management rights
* * * *
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(1) at the election of the agency, . . . on the technology,
methods, and means of performing work(.)
/2/ In view of the Authority's decision herein, it is unnecessary to
address the Respondent's assertion that a compelling need exists under
section 7117 of the Statute for the agency regulation involved herein.
/3/ The General Counsel contends that the Department of the Navy and
the Navy Public Works Center each violated the Statute by conduct
hereinafter described. Accordingly, I have amended the caption herein
to more accurately reflect that there are two Respondents in this case.
Further, although named in the Complaint, at the hearing Counsel for the
General Counsel withdrew the Department of Defense as a Respondent.
/4/ Pursuant to Counsel for the General Counsel's unopposed motion to
correct the transcript of that proceeding and upon my own recollection,
the transcript is hereby amended as noted in Appendix B.
/5/ For reasons explicated hereinafter, the motion at the hearing to
dismiss the Department of the Navy as a Respondent is hereby denied.
/6/ There is no evidence that the Union received a copy of this
letter.
/7/ Such an instruction by the Comptroller of the Navy has the same
force and effect as a directive from the Secretary of the Navy.
/8/ Some aspects of this instruction governed military pay practices
and accordingly, are not relevant to matters at issue herein.
/9/ A precursor to this system was termed "PDQ" (Pay Deposited
Quicker) which relied on the transfer of funds primarily by mail.
/10/ Pursuant to a decision of the Comptroller of the Navy, binding
upon the Public Works Center and the Supply Center, payroll services
have been supplied since 1967 and disbursing activities have been
provided since April 1981.
/11/ The Supply Center is required to implement the changes as
drafted by the Comptroller of the Navy.
/12/ On only six or seven occasions over the prior two year period
had paychecks been distributed to employees other than on a Thursday.
/13/ The "Supply Chest" also announced the change in LES's and
explained the new format of the LES's.
/14/ The Union has National Consultation Rights within the Department
of the Navy and pursuant thereto was provided with a draft of
Instruction 7200.17. On June 22, 1981, Tommy Maynard, Chairman of the
Metal Trades Council at the Public Works Center signed a response to the
draft, authorized by the President of the Metal Trades Council, wherein
the Union opposed the changes proposed in the draft. However, the
record does not disclose whether the draft was identical to the
Instruction as ultimately published.
/15/ The factual finding of what transpired at this and subsequent
meetings is a composite of the credited testimony of the various
individuals who attended the meetings and testified at the hearing on
the subject.
/16/ It is clear from the testimony of witnesses who testified on
this matter that "implementation" as used in discussions herein
frequently was meant to mean bargaining on the substance of the change,
i.e., the decision itself.
/17/ Article 24, Section 9 of the agreement provides: "The EMPLOYER
will promptly distribute payroll checks upon receipt in accordance with
past practices."
/18/ Owens and Joshua Hardy, Public Works Center Senior Labor
Advisor, testified that they were directly involved in negotiations
concerning Article 24, Section 9. According to both Owens and Hardy,
this same language was found in the parties' prior agreement and was
meant merely to indicate that when the Public Works Center received
paychecks from the Supply Center, they would distribute them to
employees without delay as they had done in the past. Indeed, during
negotiations which gave rise to the 1981 contract the Union sought to
commit Respondent to a more specific clause dealing with the day checks
would be distributed and Respondent declined to guarantee a Thursday
payday or obligate itself any further than the language set out above.
/19/ Brinkley testified that she was at the meeting ". . . to lend
assistance to Public Works Center management in negotiating this change
with their union officials (and) to explain the change (and) the impact
that it had over the Naval Supply Center."
/20/ Employees who have so opted receive their paychecks at the
worksite around 11:30 a.m. on Fridays. The option to receive paychecks
and LES's at the worksite was not available to those employees hired
after implementation.
/21/ The relevant portions of section 7116 of the Statute provide:
"(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;
* * * *
"(7) to enforce any rule or regulation (other than a rule or
regulation implementing section 2302 of this title) which is in
conflict with any applicable collective bargaining agreement if
the agreement was in effect before the date the rule or regulation
was prescribed . . . "
/22/ Section 7106(b)(1) of the Statute provides:
"(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
"(1) at the election of the agency, on the numbers, types, and
grades of employees or positions assigned to any organizational
subdivision, work project, or tour of duty, or on the technology,
methods, and means of performing work . . . ."
/23/ Section 7118(a)(4) of the Statute provides, in relevant part:
"(4)(A) . . . no complaint shall be issued based on any alleged
unfair labor practice which occurred more than 6 months before the
filing of the charge with the Authority.
/24/ See also the Union's December 8, 1981 expressions of concern to
management on this matter, supra.
/25/ "Impact and implementation" are terms frequently used by the
Authority to denote the obligations imposed by section 7106(b)(2) and
(3) of the Statute which provides:
"(2) procedures which management officials of the agency will
observe in exercising any authority under this section; or
"(3) appropriate arrangements for employees adversely affected
by the exercise of any authority under this section by such
management officials."
/26/ Respondent's various other ramifications of the contentions
treated herein are similarly found to be unmeritorious.