[ v02 p138 ]
02:0138(14)CA
The decision of the Authority follows:
2 FLRA No. 14
4392 AEROSPACE SUPPORT GROUP,
VANDENBERG AIR FORCE BASE, CALIFORNIA,
DEPARTMENT OF THE AIR FORCE
Respondent
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1001
Complainant
Assistant Secretary
Case No. 72-7644(CA)
DECISION AND ORDER
ON MAY 25, 1979, ADMINISTRATIVE LAW JUDGE THOMAS SCHNEIDER ISSUED HIS
RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICES
ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY. THEREAFTER, THE COMPLAINANT FILED TIMELY
EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
ORDER.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(44 F.R. 44741, JULY 30, 1979). THE AUTHORITY CONTINUES TO BE
RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
CASE, INCLUDING THE COMPLAINANT'S EXCEPTIONS, THE AUTHORITY HEREBY
ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSION AND
RECOMMENDATIONS AS MODIFIED BELOW.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT RESPONDENT DID NOT
VIOLATE SECTION 19(A)(1) AND (6) OF THE ORDER. IN SO CONCLUDING, HE
FOUND THAT, ALTHOUGH THERE WERE SOME MINOR DIFFERENCES BETWEEN A CENTRAL
AUTOMATED INVENTORY AND REFERRAL SYSTEM (CAIRS) AND THE AUTOMATED CAREER
MANAGEMENT SYSTEM (ACMS), THE RESPONDENT'S PHASING OUT OF CAIRS AND ITS
IMPLEMENTATION OF ACMS DID NOT CHANGE THE WORKING CONDITIONS OF THE UNIT
EMPLOYEES.
THE AUTHORITY FINDS, CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THAT
THERE WAS A CHANGE IN WORKING CONDITIONS BROUGHT ABOUT BY THE
IMPLEMENTATION OF THE ACMS AND THAT, AS A RESULT, THE RESPONDENT HAD AN
OBLIGATION, UPON REQUEST, TO MEET AND CONFER WITH THE COMPLAINANT ON THE
IMPACT AND IMPLEMENTATION OF ACMS TO REPLACE THE CAIRS. IN THE VIEW OF
THE AUTHORITY, THE REPLACEMENT OF ONE SYSTEM WITH THE OTHER RESULTED IN
A SUBSTANTIAL MODIFICATION WITH REGARD TO THE FILLING OF VACANCIES GS-12
AND ABOVE, BY CHANGING THE MANNER IN WHICH THE FINAL RANKING OF THE TEN
TOP NAMES WERE DETERMINED. THUS, WHERE UNDER CAIRS, A PANEL OF LOCAL
OFFICIALS INCLUDING A REPRESENTATIVE OF THE COMPLAINANT MADE THE FINAL
RANKING OF THE TOP TEN NAMES, UNDER ACMS, THE COMPUTER ALONE, WITHOUT
RELYING ON THE HUMAN JUDGMENTS OF THE PANEL, PROVIDES THE FINAL RANKING
OF THE TOP TEN NAMES. NOTWITHSTANDING SUCH CHANGE, HOWEVER, THE
AUTHORITY NOTES THAT THE RECORD CLEARLY ESTABLISHES THAT THE
COMPLAINANT, DESPITE HAVING KNOWLEDGE OF THE CHANGE, FAILED TO REQUEST
TO MEET AND CONFER WITH THE RESPONDENT ON THE IMPACT AND IMPLEMENTATION
OF THE CHANGE. ON THIS BASIS, THE AUTHORITY FINDS THAT THE RESPONDENT
DID NOT VIOLATE ITS BARGAINING OBLIGATION TO COMPLAINANT UNDER THE ORDER
IN IMPLEMENTING THE CHANGE FROM CAIRS TO ACMS. /1/ ACCORDINGLY, THE
AUTHORITY WILL ORDER THAT THE COMPLAINT HEREIN BE DISMISSED IN ITS
ENTIRETY. /2/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 72-7644(CA),E, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., NOVEMBER 29, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
MAJOR JERRY M. BRASEL
AIR FORCE CENTRAL LABOR LAW OFFICE
RANDOLPH AFB, TEXAS 78184
AND
CAPTAIN JOSEPH SWERDZEWSKI
VANDENBERG AFB, CALIFORNIA 93437
FOR THE RESPONDENT
BOBBY ANN SMITH AND
THOMAS P. CHRISTY
P. O. BOX 1935
VANDENBERG AFB, CALIFORNIA 93437
AND
ROBERT W. BROCKBANK
NATIONAL REPRESENTATIVE
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES
5755 ORANGE AVENUE #2
LONG BEACH, CALIFORNIA 90805
FOR THE COMPLAINANT
BEFORE: THOMAS SCHNEIDER
ADMINISTRATIVE LAW JUDGE
CASE NO. 72-7644(CA)
RECOMMENDED DECISION AND ORDER
THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS
AMENDED; THE NOTICE OF HEARING WAS ISSUED BY A REGIONAL ADMINISTRATOR
OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES
DEPARTMENT OF LABOR; AND THE PROCEEDING WAS CONDUCTED BEFORE THE
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS. THIS DECISION,
PURSUANT TO TRANSITION RULES AND REGULATIONS, FEDERAL REGISTER, VOL. 44,
NO. 1, JANUARY 2, 1979, PAGES 7-8, IS ISSUED IN THE NAME OF THE
AUTHORITY AND, IN ACCORDANCE WITH SEC. 2400.2 (5 C.F.R. SEC. 2400.2) OF
THE TRANSITION RULES AND REGULATIONS, SHALL BE PROCESSED BY THE
AUTHORITY IN ACCORDANCE WITH THE RULES AND REGULATIONS OF THE ASSISTANT
SECRETARY FOR LABOR-MANAGEMENT RELATIONS, TITLE 29, CODE OF FEDERAL
REGULATIONS, PART 201, ET SEQ., EXCEPT THAT THE WORD "AUTHORITY" SHALL
BE SUBSTITUTED WHEREVER THE WORDS "ASSISTANT SECRETARY" APPEAR IN THE
RULES AND REGULATIONS OF THE OFFICE OF THE ASSISTANT SECRETARY.
STATEMENT OF THE CASE
LOCAL 1001, NATIONAL FEDERATION OF FEDERAL EMPLOYEES (THE "UNION")
FILED A COMPLAINT AGAINST 4392ND AEROSPACE SUPPORT GROUP (THE
"ACTIVITY") LOCATED AT VANDENBERG AIR FORCE BASE, CHARGING THAT THE
ACTIVITY VIOLATED SEC. 19(A)(1) AND (6) OF THE EXECUTIVE ORDER 11491
(THE "ORDER"), BY FAILING TO NEGOTIATE THE IMPACT OF THE IMPLEMENTATION
OF THE AUTOMATED CAREER MANAGEMENT SYSTEM (ACMS) TO REPLACE THE CENTRAL
AUTOMATED INVENTORY AND REFERRAL SYSTEM (CAIRS). AFTER INVESTIGATING,
THE REGIONAL ADMINISTRATOR, LABOR-MANAGEMENT SERVICES, ON NOVEMBER 29,
1978, ISSUED A NOTICE OF HEARING. SAID HEARING WAS HELD BEFORE ME ON
JANUARY 25 AND 26, 1979, IN SANTA MARIA, CALIFORNIA. THE UNION AND THE
ACTIVITY WERE REPRESENTED AND HAD FULL OPPORTUNITY TO PRESENT EVIDENCE
AND CROSS EXAMINE WITNESSES. THE RECORD WAS CLOSED APRIL 2, 1979, WHEN
THE LAST BRIEFS WERE FILED.
FINDINGS OF FACT
BACKGROUND
THE ACTIVITY IS A PART OF VANDENBERG AIR FORCE BASE, A UNITED STATES
AIR FORCE INSTALLATION NEAR LOMPOC, CALIFORNIA. ONE OF VANDENBERG'S
MISSIONS IS TO OPERATE THE PACIFIC MISSILE TEST CENTER. THE SPACE AND
MISSILE TEST CENTER DIRECTORATE OF PROCUREMENT (SAMTEC/PM) PROVIDES
PROCUREMENT SUPPORT FOR THE PACIFIC MISSILE TEST CENTER.
AT ALL MATERIAL TIMES THE UNION WAS GRANTED EXCLUSIVE RECOGNITION BY
AND HAD A NEGOTIATED AGREEMENT WITH THE ACTIVITY.
AT ISSUE HERE IS THE TRANSITION FROM ONE AUTOMATED COMPUTER SYSTEM
(CAIRS) TO ANOTHER AUTOMATED COMPUTER SYSTEM (ACMS). BOTH SYSTEMS ARE
DESIGNED TO ENABLE THE DEPARTMENT OF DEFENSE (DOD) TO KEEP AN INVENTORY
OF PROCUREMENT PERSONNEL AND OF QUALITY AND RELIABILITY ASSURANCE
PERSONNEL, AND TO ENABLE DOD COMPONENTS TO FILL VACANCIES REQUIRING SUCH
PERSONNEL FROM ROSTERS PRODUCED FROM DATA STORED IN THE SYSTEM.
CAIRS WAS IN OPERATION FROM SOMETIME IN THE SIXTIES TO APPROXIMATELY
MARCH 1978. IT WAS TO BE REPLACED BY ACMS IMMEDIATELY, BUT IN FACT ACMS
WAS NOT READY FOR OPERATION UNTIL SEPTEMBER 1978. IN OCTOBER 1978, THE
ACTIVITY FILLED ITS FIRST AND ONLY (TO THE TIME OF HEARING) VACANCY
USING ACMS. THE UNION'S OPERATIONS OFFICER, MS. SMITH, FOUND OUT IN
JULY 1978 THAT ACMS WAS BEING IMPLEMENTED, IN THE COURSE OF A
CONVERSATION ON ANOTHER SUBJECT WITH ONE OF THE SUPERVISORS AT THE TEST
CENTER. MS. SMITH SOUGHT MORE INFORMATION, AND A MEETING WAS SET UP FOR
JULY 14, 1978, AT WHICH MS. LEIDECKER AND MS. DULIN, FROM THE ACTIVITY'S
EMPLOYMENT SECTION EXPLAINED THE SYSTEM. APPARENTLY THE UNION AND MS.
SMITH WERE CONCERNED ABOUT THE EFFECT OF ACMS ON UNIT MEMBERS AT GRADE
LEVEL GS-5 THROUGH 11. IN FACT, FOR THOSE GRADE LEVELS THE NEW SYSTEM
INVOLVED ONLY FILLING OUT NEW REGISTRATION FORMS WHICH VARIED FROM THE
PREVIOUS FORMS IN APPEARANCE, BUT ONLY MINIMALLY IN CONTENT AND
FUNCTION. THIS IS NOT AN AREA OF SIGNIFICANT DISPUTE BETWEEN THE
PARTIES. THE DISPUTE CENTERS AROUND GRADE LEVELS GS-12 AND ABOVE.
THERE ARE A NUMBER OF EMPLOYEES AT GRADE LEVEL GS-12 AND ABOVE WHO
ARE MEMBERS OF THE BARGAINING UNIT. THERE IS NO CONTENTION THAT THE
ACTIVITY BARGAINED ON THE IMPACT OF ACMS. THE FACT IS IT DID NOT
BARGAIN. THE QUESTION IS, WAS THIS A VIOLATION OF THE ORDER?
WAIVER
THE ACTIVITY CONTENDS THAT THE UNION'S FAILURE TO REQUEST IMPACT
BARGAINING AT THE JULY 14 MEETING, AND ITS FAILURE TO PRESENT SPECIFIC
PROPOSALS AT THAT MEETING, CONSTITUTE A WAIVER OF ANY RIGHTS IT HAD TO
BARGAIN OVER THE IMPACT OF ACMS. I REJECTED THIS CONTENTION AT THE
HEARING (TR. 304-306) AND I REJECT IT STILL. WAIVER IS DEFINED AS THE
INTENTIONAL OR VOLUNTARY RELINQUISHMENT OF A KNOWN RIGHT. BLACK'S LAW
DICTIONARY, REV. 4TH ED.(1968). THE UNION DID NOT HAVE ENOUGH
INFORMATION ON OR BEFORE JULY 14, 1978, TO FORMULATE MEANINGFUL
QUESTIONS OR PROPOSALS. THUS, ITS FAILURE TO DO SO CANNOT BE A WAIVER
OR ANY OF ITS RIGHTS.
IF THE ACTIVITY HAD A DUTY TO BARGAIN REGARDING THE IMPACT OF ACMS IT
HAD A DUTY TO INFORM THE UNION OF ACMS PROCEDURES IN SUFFICIENT DETAIL
TO MAKE ITS IMPACT UNDERSTANDABLE. THIS IT DID NOT DO.
THE ACTIVITY ALSO CONTENDS THAT THE UNION WAIVED ITS RIGHT TO
NEGOTIATE THE IMPACT OF ACMS IN ARTICLE XVII, SECTION 3(A) OF THE
NEGOTIATED AGREEMENT (COMP. EXH. 1). THAT SECTION PROVIDES:
SECTION 3.
A. REQUIREMENTS. ALL PROMOTIONS TO POSITIONS IN THE COMPETITIVE
SERVICE-- AND TO
POSITIONS IN THE EXCEPTED SERVICE INSOFAR AS PRACTICABLE-- WHICH ARE
SERVICED BY THE CIVILIAN
PERSONNEL OFFICE AT VANDENBERG AIR FORCE BASE WILL BE MADE IN
ACCORDANCE WITH PROCEDURES
OUTLINED IN THIS PLAN UNLESS SPECIFICALLY COVERED BY A HIGHER
HEADQUARTERS PLAN WHICH TAKES
PRECEDENCE. PROMOTIONS TO POSITIONS GOVERNED BY OTHER PLANS (E.G.
PROCUREMENT POSITIONS
FILLED THROUGH CAIRA /3/ PROCEDURES, OPERATION ANALYST POSITIONS,
HIGHGRADE POSITIONS AT
GS-15 AND ABOVE) WILL BE MADE IN ACCORDANCE WITH GOVERNING HIGHER
HEADQUARTERS' DIRECTIVES AND
IN ACCORDANCE WITH THIS PLAN TO THE EXTENT THAT IT DOES NOT CONFLICT
WITH MANDATORY PROVISIONS
OF THE HIGHER DIRECTIVE.
IT IS CLEAR THAT ACMS WAS A HIGHER HEADQUARTERS' DIRECTIVE. THE
ACTIVITY ARGUES THAT SINCE THE AGREEMENT ITSELF SPECIFIES THAT
PROMOTIONS GOVERNED BY PLANS LIKE CAIRA WILL BE MADE IN ACCORDANCE WITH
GOVERNING HIGHER HEADQUARTERS' DIRECTIVES, AND SINCE ACMS IS A PLAN
REQUIRED BY HIGHER HEADQUARTER'S DIRECTIVE, THERE IS NOTHING TO
NEGOTIATE ABOUT. THIS ARGUMENT IGNORES THE LAST 21 WORDS OF THE
SECTION, WHICH SPECIFY THAT PROMOTIONS GOVERNED BY PLANS OTHER THAN
THOSE IN THE AGREEMENT WILL BE MADE IN ACCORDANCE WITH GOVERNING HIGHER
HEADQUARTERS' DIRECTIVES "AND IN ACCORDANCE WITH THIS PLAN TO THE EXTENT
THAT IT DOES NOT CONFLICT WITH MANDATORY PROVISIONS OF THE HIGHER
DIRECTIVE." THUS, THE AGREEMENT CLEARLY RESERVED TO THE PARTIES THE
RIGHT TO NEGOTIATE TO DETERMINE THE EXTENT TO WHICH THE ACMS CAN BE
RECONCILED TO THE PLAN CONTAINED IN THE AGREEMENT.
IMPACT
THE ACTIVITY CONTENDS THAT THE IMPLEMENTATION OF ACMS HAD NO
SUBSTANTIAL IMPACT UPON THE EMPLOYEES REPRESENTED BY THE UNION. I AGREE
WITH THIS CONTENTION.
THE UNION ALLEGES DIFFERENCES BETWEEN CAIRS AND ACMS IN RESPECT TO
ENROLLMENT, MOBILITY, AREA OF CONSIDERATION, CRITERIA FOR SELECTION AND
REFERRAL OF LOCAL CANDIDATES. ANALYSIS REVEALS THAT THE TWO PROGRAMS
ARE NEARLY IDENTICAL IN EACH OF THESE RESPECTS.
ENROLLMENT
BOTH MS. DULIN AND MS. LEIDECKER WERE EXPERTS IN THEIR RESPECTIVE
FIELDS AND GAVE VERY CREDIBLE TESTIMONY. TOGETHER THEIR TESTIMONY
SHOWED THAT PRECISELY THE SAME PEOPLE WERE REQUIRED TO BE ENROLLED IN
BOTH SYSTEMS. THROUGH THE GS-11 LEVEL THE PURPOSE OF ENROLLMENT WAS
SIMPLY INFORMATIONAL. AT THE GS-12 LEVEL AND ABOVE THE PURPOSE WAS TO
FILL VACANCIES. SOME OF THE UNION'S WITNESSES WERE UNSURE WHY THEY WERE
REGISTERED IN ONE OR THE OTHER OR BOTH PROGRAMS. BUT I FIND THAT THIS
UNCERTAINTY WAS NOT DUE TO THE DIFFERENT REQUIREMENTS OF EACH SYSTEM,
BUT RATHER DUE TO THEIR UNFAMILIARITY WITH THE REGULATIONS OR DUE TO THE
CHANGING NATURE OF THEIR WORK.
MOBILITY
THE UNION CONTENDS THAT ACMS REQUIRES THE PERSONS ENROLLED IN IT TO
BE MORE MOBILE THAN THOSE PERSONS WHO WERE ENROLLED IN CAIRS. THE
EVIDENCE SHOWED, HOWEVER, THAT ACMS PROVIDES AN AVENUE FOR INDIVIDUAL
EMPLOYEES TO SPECIFY THE PRECISE GEOGRAPHIC BASE OF THEIR CHOICE. A
VANDENBERG EMPLOYEE WHO WISHED NOT TO RELOCATE COULD SPECIFY
VANDENBERG
AS THE SOLE LOCATION FOR REFERRAL. IT WAS UP TO THE PARTICULAR ACTIVITY
THAT HAD A VACANCY TO SPECIFY WHETHER MOBILITY WAS A REQUIREMENT FOR A
SPECIFIC JOB, NOT THE ACMS AS A WHOLE. IT IS TRUE THAT AFTER DECLINING
A POSITION UNDER ACMS AN EMPLOYEE WOULD HAVE TO REVISE HIS FORM 2077
WITHIN 20 DAYS TO AGAIN BE CONSIDERED FOR REFERRAL. UNDER CAIRS HE
WOULD CONTINUE TO BE REFERRED EVEN WITHOUT ACTION ON HIS PART. BUT THIS
IS A VERY MINOR PROCEDURAL DIFFERENCE. THE IMPORTANT POINT IS THAT
UNDER BOTH PROGRAMS THE EMPLOYEE HAS CONTROL OVER HIS PROSPECTIVE
ASSIGNMENTS, AND BOTH PROGRAMS REQUIRE MOBILITY IN CERTAIN TRAINING
POSITIONS.
AREA OF CONSIDERATION
MS. DULIN TESTIFIED THAT THE AREA OF CONSIDERATION UNDER BOTH CAIRS
AND ACMS WAS DOD WIDE (TR. 290). NO PERSUASIVE EVIDENCE SHOWED
OTHERWISE.
CRITERIA FOR SELECTION
ONE OF THE UNION'S WITNESSES, MR. BAUGHMAN, TESTIFIED THAT CAIRS USED
THREE CRITERIA FOR THE SELECTION OF A CANDIDATE: THE COMMODITY, THE
YEARS OF CIVIL SERVICE, AND THE SUPERVISORY APPRAISAL. HE SAID ACMS
USES ONLY TWO: THE EMPLOYEE'S SELF-APPRAISAL AND THE SUPERVISOR'S
APPRAISAL. OTHER EVIDENCE FROM PERSONS EVEN MORE FAMILIAR WITH THESE
FACTORS SHOWED THAT SENIORITY WAS USED IN BOTH SYSTEMS ONLY TO BREAK
TIES, AND THAT COMMODITY AND SUPERVISORY APPRAISAL ARE CODED INTO THE
ACMS. THE NET EFFECT IS THAT BOTH SYSTEMS USE THE SAME CRITERIA FOR
SELECTION THAT VARY ONLY WITH THE NEEDS OF THE REQUISITIONING AGENCY.
REFERRAL OF LOCAL CANDIDATES
SEVERAL UNION WITNESSES TESTIFIED THAT LOCAL VACANCIES COULD BE
FILLED BY LOCAL PEOPLE MORE READILY UNDER CAIRS THAN UNDER ACMS. THIS
CONTENTION IS BELIED MOST VIVIDLY BY THE FACT THAT THE ONLY TIME ACMS
HAS BEEN USED TO FILL A VACANCY AT VANDENBERG, A LOCAL PERSON WAS
SELECTED (TR. 174). IN ADDITION, IT IS CLEAR THAT BOTH CAIRS AND ACMS
PRODUCE ROSTERS OF ELIGIBLES DERIVED DOD WIDE, INCLUDING ALL THE
QUALIFIED LOCAL PEOPLE. UNDER BOTH SYSTEMS THE VACANCY MUST BE FILLED
FROM SUCH ROSTERS.
ONE DIFFERENCE, WHICH I FIND TO BE INSIGNIFICANT, WAS BROUGHT OUT.
UNDER CAIRS LOCAL OFFICIALS WOULD MAKE THE FINAL RANKING OF THE TOP TEN
NAMES PRODUCED BY THE COMPUTER, BY USING SUCH RANKING ITEMS AS AWARDS.
UNDER ACMS SUCH FACTORS ARE CODED INTO THE REQUEST PRIOR TO FINAL
RANKING. THUS, UNDER BOTH SYSTEMS THE SAME FACTORS ARE CONSIDERED.
MINISTERIAL ACT
LASTLY, THE ACTIVITY CONTENDS THAT ITS IMPLEMENTATION OF ACMS WAS A
MINISTERIAL ACT WHICH IT HAD NO DISCRETION BUT TO FOLLOW. THIS
STATEMENT LEADS TO THE QUESTION, DISCUSSED IN NAVAL AIR REWORK FACILITY,
PENSACOLA, FLORIDA, FLRC NO. 76A-37 (MAY 4, 1977), WHICH LEVEL IN THE
CHAIN OF COMMAND MAY BE HELD TO VIOLATE SEC. 19(A) OF THE ORDER. SINCE
I CONCLUDE THAT THE ORDER HAS NOT BEEN VIOLATED FOR THE REASONS STATED,
I NEED NOT REACH THIS QUESTION.
CONCLUSION
I THEREFORE CONCLUDE THAT THE ACTIVITY HAD NO DUTY TO NEGOTIATE THE
IMPACT OF IMPLEMENTING THE AUTOMATED CAREER MANAGEMENT SYSTEM (ACMS) AND
THEREFORE DID NOT VIOLATE SECTION 19(A)(1) AND (6) OF THE ORDER.
RECOMMENDED ORDER
I RECOMMEND TO THE FEDERAL LABOR RELATIONS AUTHORITY THAT THE
COMPLAINT BE DISMISSED IN ITS ENTIRETY.
THOMAS SCHNEIDER
ADMINISTRATIVE LAW JUDGE
DATED: MAY 25, 1979
SAN FRANCISCO, CALIFORNIA
TS:VG
/1/ CF. SUPERVISOR OF SHIPBUILDING, CONVERSION AND REPAIR, UNITED
STATES NAVY, GROTON, CONNECTICUT, A/SLMR NO. 1147 AND DEPARTMENT OF THE
ARMY, U.S. MILITARY ACADEMY, WEST POINT, NEW YORK, A/SLMR NO. 1138.
/2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD HAVE BEEN REACHED BY THE AUTHORITY IF THE CASE HAD
ARISEN UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/3/ CAIRA IS THE BODY THAT OPERATES THE CAIRS. THE ACRONYMS ARE
INTERCHANGEABLE.