[ v04 p760 ]
04:0760(100)CA
The decision of the Authority follows:
4 FLRA No. 100
DEPARTMENT OF DEFENSE
DEPARTMENT OF THE NAVY
NAVAL ORDNANCE STATION
LOUISVILLE, KENTUCKY
Respondent
and
LOCAL LODGE 830, INTERNATIONAL
ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AFL-CIO
Charging Party
Case Nos. 4-CA-28(2)
4-CA-28(7)
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD
ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINTS, AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTION AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER. THE RESPONDENT FILED EXCEPTIONS
TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER, AND A
SUPPORTING BRIEF.
THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
REGULATION (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 THESE
CASES, INCLUDING THE RESPONDENT'S EXCEPTIONS AND SUPPORTING BRIEF, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS.
IN PARTICULAR, THE AUTHORITY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
CONCLUSION THAT UPON THE EXPIRATION OF A CONTRACT THE EXISTING PERSONNEL
POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS CONTINUE
AS ESTABLISHED UNLESS MODIFIED IN A MANNER CONSISTENT WITH THE STATUTE.
/1/ ADDITIONALLY, THE AUTHORITY TAKES NOTICE OF THE FACT THAT THE
COLLECTIVE BARGAINING RELATIONSHIP ENVISAGED BY THE STATUTE REQUIRES
EACH PARTY HAVE THE ABILITY TO FUNCTION AS AN EQUAL PARTNER WITHIN THE
RELATIONSHIP. THE LEGISLATIVE HISTORY OF THE STATUTE ALSO STRESSES THE
GOAL OF BALANCED, MUTUAL RESPONSIBILITY ON THE PART OF THE PARTIES. /2/
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 THE DEPARTMENT OF DEFENSE, DEPARTMENT OF
THE NAVY, NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY, SHALL:
1. CEASE AND DESIST FROM:
(A) REDUCING THE NUMBER OF UNION REPRESENTATIVES ON THE
UNION-MANAGEMENT SAFETY COMMITTEE
WITHOUT NOTIFYING LOCAL LODGE 830, INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, AND
FAILING TO AFFORD SUCH
REPRESENTATIVE THE OPPORTUNITY TO NEGOTIATE, TO THE EXTENT CONSONANT
WITH LAW AND REGULATIONS,
ON THE DECISION TO EFFECTUATE SUCH A CHANGE.
(B) CHANGING THE ESTABLISHED SELECTION PROCESS BY SEEKING CANDIDATES
FOR VACANCIES WITHOUT
FIRST EXHAUSTING THE GROUP OF ELIGIBLE CANDIDATES FROM NOSL AND
OTHERWISE COMPLYING WITH THE
PROMOTION PRACTICES PREVIOUSLY ENUNCIATED IN SECTIONS 2(A), 3(A),
4(B), 5(C), (WITH THE
EXCEPTION OF THE TRAINEES CLAUSE), 6(A) AND 6(B) (WITH THE EXCEPTION
OF THE LAST SENTENCE OF
6(B)) OF ARTICLE 15 OF THE NEGOTIATED AGREEMENT, DATED SEPTEMBER 20,
1974, WITHOUT FIRST
NOTIFYING LOCAL LODGE 830, INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS,
AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, AND AFFORDING
IT THE OPPORTUNITY TO
NEGOTIATE, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE
DECISION TO EFFECTUATE
SUCH CHANGES.
(C) UNILATERALLY CHANGING THE PROCEDURES REGARDING THE ESTABLISHMENT
OF TRAINEE POSITIONS
AND THE SELECTION OF CANDIDATES AS PREVIOUSLY ENUNCIATED IN SECTION
5(C) AND THE LAST SENTENCE
OF SECTION 6(B), RESPECTIVELY, OF ARTICLE 15 OF THE ABOVE-MENTIONED
AGREEMENT WITHOUT
NOTIFYING THE ABOVE EXCLUSIVE REPRESENTATIVE, AND AFFORDING IT THE
OPPORTUNITY TO NEGOTIATE,
TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE IMPACT AND
IMPLEMENTATION OF THE
DECISION TO EFFECTUATE SUCH CHANGES.
(D) 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 IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) RESCIND THE CHANGES SET FORTH IN PARAGRAPHS 1(A) AND 1(B), ABOVE,
AND RESTORE ALL
CONDITIONS OF EMPLOYMENT REGARDING THESE MATTERS WHICH WERE IN EFFECT
PRIOR TO SUCH CHANGES.
(B) NOTIFY LOCAL LODGE 830, INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS,
AFL-CIO, OF ANY INTENDED DECISION TO IMPLEMENT THE CHANGES SET FORTH
IN 1(C) ABOVE AND, UPON
REQUEST, NEGOTIATE, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS,
ON THE IMPACT AND
IMPLEMENTATION OF SUCH DECISION.
(C) NOTIFY SAID EXCLUSIVE REPRESENTATIVE OF ANY INTENDED CHANGES IN
THE PROMOTION PRACTICES
AND PROCEDURES SET FORTH IN PARAGRAPH 1(B), ABOVE, AND, UPON REQUEST,
NEGOTIATE IN GOOD FAITH,
TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE DECISION TO
EFFECTUATE SUCH CHANGES.
(D) POST ALL JOB VACANCIES WHICH OCCURRED AT NAVAL ORDNANCE STATION,
LOUISVILLE, KENTUCKY,
AFTER FEBRUARY 8, 1979, IN ACCORDANCE WITH THE ESTABLISHED TERMS AND
CONDITIONS SET FORTH IN
THE NEGOTIATED AGREEMENT DATED SEPTEMBER 20, 1974, AND EVALUATE ALL
CANDIDATES FOR SUCH
VACANCIES UNDER THE ESTABLISHED TERMS AND CONDITIONS OF SAID
NEGOTIATED AGREEMENT AND THE
PUBLISHED AGENCY POLICIES AND REGULATIONS IN EXISTENCE PRIOR TO THE
CHANGES MADE ON OR ABOUT
FEBRUARY 8, 1979.
(E) IF, FOLLOWING THE ACTION TAKEN IN ACCORDANCE WITH PARAGRAPH 2(D)
ABOVE IT SHOULD
DEVELOP THAT THERE WAS AN IMPROPER FAILURE TO PROMOTE AN EMPLOYEE,
THE POSITION TO WHICH SUCH
EMPLOYEE WOULD HAVE BEEN ENTITLED SHALL BE VACATED, AND THE EMPLOYEE
SHALL BE PROMOTED AND
REIMBURSED FOR ANY LOSS OF MONIES OCCASIONED BY THE IMPROPER FAILURE
TO PROMOTE.
(F) POST AT THE NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY, COPIES
OF THE ATTACHED NOTICE
MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON
RECEIPT OF SUCH FORMS, THEY
SHALL BE SIGNED BY THE COMMANDING OFFICER OF THE NAVAL ORDNANCE
STATION AND SHALL BE POSTED
AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN
CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE
COMMANDING OFFICER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(G) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE
REGIONAL DIRECTOR OF REGION 4, SUITE 501, 1776 PEACHTREE STREET,
N.W., ATLANTA, GEORGIA 30309,
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., DECEMBER 19, 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 REDUCE THE NUMBER OF UNION REPRESENTATIVES ON THE
UNION-MANAGEMENT SAFETY COMMITTEE WITHOUT NOTIFYING LOCAL LODGE 830,
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO,
THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, NOR FAIL TO AFFORD SUCH
REPRESENTATIVE THE OPPORTUNITY TO NEGOTIATE TO THE EXTENT CONSONANT WITH
LAW AND REGULATIONS ON THE DECISION TO EFFECTUATE SUCH A CHANGE.
WE WILL NOT CHANGE THE ESTABLISHED SELECTION PROCESS BY SEEKING
CANDIDATES FOR VACANCIES WITHOUT FIRST EXHAUSTING THE GROUP OF ELIGIBLE
CANDIDATES FROM NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY, AND
OTHERWISE COMPLYING WITH THE PROMOTION PRACTICES PREVIOUSLY ENUNCIATED
IN SECTIONS 2(A), 3(A), 3(D), 4(B), 5(C) (WITH THE EXCEPTION OF THE
TRAINEES CLAUSE), 6(A) AND 6(B) (WITH THE EXCEPTION OF THE LAST SENTENCE
OF 6(B)) OF ARTICLE 15 OF THE AGREEMENT DATED SEPTEMBER 20, 1974,
WITHOUT FIRST NOTIFYING THE ABOVE EXCLUSIVE REPRESENTATIVE AND AFFORDING
IT THE OPPORTUNITY TO NEGOTIATE, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON THE DECISION TO EFFECTUATE SUCH CHANGES.
WE WILL NOT UNILATERALLY CHANGE THE PROCEDURES REGARDING THE
ESTABLISHMENT OF TRAINEE POSITIONS AND THE SELECTION OF CANDIDATES AS
PREVIOUSLY ENUNCIATED IN SECTION 5(C) AND THE LAST SENTENCE OF SECTION
6(B), RESPECTIVELY, OF ARTICLE 15 OF THE ABOVE-MENTIONED AGREEMENT,
WITHOUT NOTIFYING THE ABOVE EXCLUSIVE REPRESENTATIVE, AND AFFORDING IT
THE OPPORTUNITY TO NEGOTIATE, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON THE IMPACT AND IMPLEMENTATION OF THE DECISION TO
EFFECTUATE SUCH 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
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL RESCIND THE DECISIONS (A) TO REDUCE THE NUMBER OF UNION
REPRESENTATIVES ON THE UNION-MANAGEMENT SAFETY COMMITTEE, AND (B) TO
CHANGE THE ESTABLISHED SELECTION PRACTICES SET FORTH IN SECTIONS 2(A),
3(A),3(D), 4(B), 5(C) (EXCLUDING THE TRAINEE PROVISION), 6(A) AND 6(B)
(EXCLUDING THE LAST SENTENCE) OF ARTICLE 15, OF THE NEGOTIATED AGREEMENT
DATED SEPTEMBER 20, 1974, AND WE WILL RESTORE ALL CONDITIONS OF
EMPLOYMENT REGARDING THESE MATTERS WHICH WERE IN EFFECT PRIOR TO SUCH
CHANGES.
WE WILL NOTIFY LOCAL LODGE 830, INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, OF ANY INTENDED DECISION TO
IMPLEMENT THE PROCEDURAL CHANGES TO THE TERMS SET FORTH IN SECTION 5(C)
REGARDING TRAINEE POSITIONS, AND THE LAST SENTENCE OF SECTION 6(B) OF
ARTICLE 15 OF THE ABOVE-MENTIONED AGREEMENT, AND UPON REQUEST NEGOTIATE
TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS ON THE IMPACT AND
IMPLEMENTATION OF SUCH DECISION.
WE WILL NOTIFY SAID EXCLUSIVE REPRESENTATIVE OF ANY INTENDED CHANGES
IN THE ESTABLISHED SELECTION PRACTICES AND PROCEDURES SET FORTH ABOVE,
AND UPON REQUEST, NEGOTIATE IN GOOD FAITH TO THE EXTENT CONSONANT WITH
LAW AND REGULATIONS, ON THE DECISION TO EFFECTUATE SUCH CHANGES.
WE WILL POST ALL JOB VACANCIES WITHIN THE BARGAINING UNIT WHICH
OCCURRED AT NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY, AFTER FEBRUARY
8, 1979, IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE
ABOVE-MENTION NEGOTIATED AGREEMENT, AND EVALUATE ALL CANDIDATES FOR SUCH
VACANCIES UNDER THE TERMS AND CONDITIONS ESTABLISHED BY SAID NEGOTIATED
AGREEMENT, AND THE PUBLISHED AGENCY POLICIES AND REGULATIONS IN
EXISTENCE PRIOR TO THE CHANGES MADE IN THE SELECTION PROCESS ON OR ABOUT
FEBRUARY 8, 1979.
WE WILL VACATE POSITIONS WHICH WERE IMPROPERLY FILLED AFTER FEBRUARY
8, 1979, PROMOTE ANY EMPLOYEE IMPROPERLY DENIED PROMOTION AND REIMBURSE
SUCH EMPLOYEE ANY LOSS OF MONIES OCCASIONED BY THE IMPROPER FAILURE TO
PROMOTE.
(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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION IV, WHOSE ADDRESS
IS: SUITE 501, NORTH WING, 1776 PEACHTREE STREET, N.W., ATLANTA,
GEORGIA 30309, AND WHOSE PHONE NUMBER IS (404) 881-2324.
-------------------- ALJ$ DECISION FOLLOWS --------------------
MITCHELL ARKIN, ESQUIRE
DOROTHY O'BRIEN, ESQUIRE
FOR THE RESPONDENT
JAMES R. PUHGER, ESQUIRE
WILLIAM N. CATES, ESQUIRE
FOR THE GENERAL COUNSEL
LOUIS P. POULTON, ESQUIRE
FOR THE CHARGING PARTY
BEFORE: RANDOLPH D. MASON,
ADMINISTRATIVE LAW JUDGE
DECISION
THESE CASES AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101, ET SEQ., AS A RESULT OF
A CONSOLIDATED UNFAIR LABOR PRACTICE COMPLAINT FILED ON SEPTEMBER 25,
1979, BY THE ACTING REGIONAL DIRECTOR, REGION IV, FEDERAL LABOR
RELATIONS AUTHORITY, ATLANTA, GEORGIA, AGAINST THE DEPARTMENT OF
DEFENSE, DEPARTMENT OF NAVY, NAVAL ORDNANCE STATION, LOUISVILLE,
KENTUCKY. THE COMPLAINT ARISES OUT OF CHARGES FILED BY LOCAL LODGE 830,
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO
("UNION").
THE COMPLAINT ALLEGES THAT RESPONDENT VIOLATED SEC. 7116(A)(5) AND
(1) BY UNILATERALLY IMPLEMENTING CHANGES TO THE COMPOSITION OF A
UNION-MANAGEMENT SAFETY COMMITTEE AND UNILATERALLY CANCELLING CERTAIN
ESTABLISHED PROMOTION PRACTICES AND PROCEDURES WITHOUT FURNISHING THE
UNION WITH NOTICE AND/OR AN OPPORTUNITY TO BARGAIN. RESPONDENT DENIES
THESE ALLEGATIONS AND ALSO MOVES TO DISMISS IN EACH OF THE CONSOLIDATED
CASES ON THE GROUND THAT THE UNDERSIGNED LACKS JURISDICTION.
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED AT
LOUISVILLE, KENTUCKY, ON DECEMBER 18, 1979. ALL PARTIES WERE
REPRESENTED BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE
RELEVANT EVIDENCE, AND EXAMINE AND CROSS-EXAMINE WITNESSES. ALL PARTIES
FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED. BASED ON THE ENTIRE
RECORD THEREIN, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR
DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE ADDUCED AT THE
HEARING, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
RECOMMENDED ORDER:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
THE FIRST ISSUE FOR CONSIDERATION IS WHETHER THESE ACTIONS WERE
APPROPRIATELY BROUGHT BEFORE THE UNDERSIGNED IN THE CONTEXT OF AN UNFAIR
LABOR PRACTICE PROCEEDING. RESPONDENT CONTENDS, INTER ALIA, THAT THE
ADMINISTRATIVE LAW JUDGE IN AN UNFAIR LABOR PRACTICE PROCEEDING HAS NO
AUTHORITY TO RESOLVE NEGOTIABILITY QUESTIONS, AND THAT SUCH
DETERMINATIONS MUST FIRST BE MADE UNDER THE NEGOTIABILITY PROCEDURES SET
FORTH IN SECTION 7117 OF THE STATUTE AND PART 2424 OF THE AUTHORITY'S
RULES AND REGULATIONS. HOWEVER, THE FINAL RULES AND REGULATIONS
PROMULGATED BY THE AUTHORITY (45 FED.REG. 3482, ET SEQ.), WHICH BECAME
EFFECTIVE ON JANUARY 28, 1980, CLEARLY PROVIDE THAT NEGOTIABILITY
DETERMINATIONS MAY BE MADE IN CERTAIN CIRCUMSTANCES IN UNFAIR LABOR
PRACTICE PROCEEDINGS UNDER PART 2423. SECTION 2423.5 OF THOSE
REGULATIONS SPECIFICALLY PROVIDES THAT WHERE A UNION HAS FILED BOTH AN
UNFAIR LABOR PRACTICE CHARGE INVOLVING A NEGOTIABILITY ISSUE AND HAS
ALSO PETITIONED NOR REVIEW OF THE SAME NEGOTIABILITY ISSUE UNDER PART
2424, THE UNION MUST "SELECT UNDER WHICH PROCEDURE TO PROCEED." THE
AUTHORITY AND GENERAL COUNSEL ORDINARILY WILL NOT PROCESS THE UNFAIR
LABOR PRACTICE CHARGE AND THE PETITION FOR REVIEW SIMULTANEOUSLY. ID.
SECTION 2423.5 ALSO PROVIDES:
. . . CASES WHICH SOLELY INVOLVE AN AGENCY'S ALLEGATION THAT THE DUTY
TO BARGAIN IN GOOD
FAITH DOES NOT EXTEND TO THE MATTER PROPOSED TO BE BARGAINED AND
WHICH DO NOT INVOLVE ACTUAL
OR CONTEMPLATED CHANGES IN CONDITIONS OF EMPLOYMENT MAY ONLY BE FILED
UNDER PART 2424 OF THIS
SUBCHAPTER.
THE CLEAR IMPLICATION OF THE ABOVE-QUOTED SENTENCE IS THAT
NEGOTIABILITY DETERMINATIONS MAY BE MADE IN UNFAIR LABOR PRACTICE
PROCEEDINGS INVOLVING "ACTUAL OR CONTEMPLATED CHANGES IN CONDITIONS OF
EMPLOYMENT." IN BOTH OF THE INSTANT CONSOLIDATED CASES, SUCH CHANGES
WERE ALLEGED IN THE COMPLAINT. FURTHERMORE, I HAVE CONCLUDED, INFRA,
THAT SUCH CHANGES WERE UNILATERALLY MADE BY THE RESPONDENT. WHERE AN
AGENCY COMMITS UNFAIR LABOR PRACTICES BY MAKING UNILATERAL CHANGES IN
WORKING CONDITIONS, THE UNION SHOULD NOT BE REQUIRED TO PURSUE THE
NEGOTIABILITY PROCEDURES UNDER PART 2424 OF THE REGULATIONS BEFORE
SEEKING ITS REMEDY UNDER THE UNFAIR LABOR PRACTICE PROCEEDING.
THEREFORE, I CONCLUDE THAT THE INSTANT ACTION WAS PROPERLY BROUGHT
BEFORE THE UNDERSIGNED AND THAT THE RESPONDENT'S MOTION TO DISMISS MUST
BE DENIED. /3/
II. CHANGE IN SAFETY COMMITTEE
A. ISSUE
THE NEXT ISSUE FOR CONSIDERATION IS WHETHER RESPONDENT VIOLATED
SECTIONS 7116(A)(1) AND (5) OF THE STATUTE WHEN IT UNILATERALLY CHANGED
THE NUMBER OF UNION REPRESENTATIVES ON THE UNION-MANAGEMENT SAFETY
COMMITTEE WITHOUT AFFORDING THE UNION AN OPPORTUNITY TO BARGAIN
CONCERNING THE BASIC CHANGE AND/OR THE IMPACT AND IMPLEMENTATION OF THIS
CHANGE.
B. FINDINGS OF FACT
ON SEPTEMBER 20, 1974, THE ACTIVITY ENTERED INTO A COLLECTIVE
BARGAINING AGREEMENT WITH THE UNION; /4/ ARTICLE 19 PROVIDED IN PART AS
FOLLOWS:
SECTION 2. SAFETY COMMITTEE
A. THE EMPLOYER AND THE UNION AGREE TO ESTABLISH A SAFETY COMMITTEE
CONSISTING OF AN EQUAL
NUMBER OF UNION AND EMPLOYER REPRESENTATIVES. SAID COMMITTEE WILL
FUNCTION WITHOUT LOSS OF
PAY OR LEAVE DURING WORKING HOURS.
B. THE COMMITTEE SHALL MEET AT LEAST ONCE EACH MONTH TO CONSIDER
SAFETY PROBLEMS AND TO
MAKE RECOMMENDATIONS FOR THE IMPROVEMENT OF SAFETY TO THE COMMANDING
OFFICER . . .
SECTION 3 PROVIDED THAT WHEN SAFETY QUESTIONS COULD NOT BE SETTLED
BETWEEN THE UNION AND THE ACTIVITY, AND IF THE UNION BELIEVED THAT A
SAFETY HAZARD STILL EXISTED, THE QUESTION COULD BE SUBMITTED TO
ARBITRATION FOR RESOLUTION.
THIS AGREEMENT WAS AMENDED ON SEPTEMBER 20, 1976, BUT NO CHANGE WAS
MADE IN THE LANGUAGE OF ARTICLE 19. THE AMENDED AGREEMENT EXPIRED ON
SEPTEMBER 20, 1977.
SOON AFTER THE 1974 AGREEMENT WAS EXECUTED, THE SAFETY COMMITTEE WAS
ESTABLISHED. THE UNION APPOINTED 15 REPRESENTATIVES, EACH REPRESENTING
A DIFFERENT BUILDING OR COST CENTER AT THE ACTIVITY; RESPONDENT
APPOINTED AN EQUAL NUMBER OF MANAGEMENT REPRESENTATIVES FOR EACH OF THE
ABOVE LOCATIONS, PLUS A CHAIRMAN AND A SAFETY DIRECTOR, BRINGING THE
TOTAL MEMBERSHIP OF THE SAFETY COMMITTEE TO 32 MEMBERS. THE COMMITTEE
MET ONCE A MONTH FOR THE PURPOSE OF CONSIDERING SAFETY PROBLEMS,
RECOMMENDING THE PURCHASE OF SAFETY EQUIPMENT, SHOWING SAFETY FILMS, AND
USING OTHER TRAINING METHODS. THE AVERAGE LENGTH OF THE MEETINGS WAS 45
MINUTES. THE ABOVE PRACTICE CONTINUED THROUGH DECEMBER OF 1973
NOTWITHSTANDING THE EXPIRATION OF THE AGREEMENT IN SEPTEMBER OF 1977.
ON NOVEMBER 27, 1978, COMMANDING OFFICER H.M. DEJARNETTE ISSUED A
MEMORANDUM TO VARIOUS INDIVIDUALS AT THE ACTIVITY SETTING A "GOAL" OF A
20 PERCENT REDUCTION IN THE COST OF ALL MEETINGS THEN BEING HELD AT THE
ACTIVITY. THE MEMORANDUM WAS DIRECTED AT THE INDIVIDUALS WHO CONTROL
THE MEETINGS. /3/ THE SAFETY COMMITTEE MEETING WAS ON THE LIST TARGETED
FOR COST REDUCTION. THE MEMORANDUM REQUESTED THE INDIVIDUALS
CONTROLLING THE MEETINGS TO SUBMIT A PLAN OF ACTION TO ATTAIN THE 20
PERCENT REDUCTION. THE MEMORANDUM ALSO SUGGESTED VARIOUS WAYS IN WHICH
THE GOAL MIGHT BE MET, FOR ALL MEETINGS AT THE ACTIVITY, INCLUDING THE
REDUCTION OF THE NUMBER OF PARTICIPANTS IN EACH MEETING. HOWEVER, IT
WAS CLEAR THAT NO FINAL DECISION HAD BEEN MADE AT THIS POINT TO REDUCE
THE NUMBER OF PARTICIPANTS OF ANY COMMITTEE MEETING.
ON JANUARY 3, 1979, THE COMMANDING OFFICER SENT A MEMORANDUM TO THE
UNION PRESIDENT STATING THAT, EFFECTIVE WITH THE JANUARY 19, 1979,
MEETING, THE SAFETY COMMITTEE MEMBERSHIP WOULD BE REDUCED FROM 15
MEMBERS TO FOUR MEMBERS TO REPRESENT EACH SIDE, I.E., UNION AND
MANAGEMENT. IT WAS STATED THAT EACH MEMBER WOULD NOW BE RESPONSIBLE FOR
REPRESENTING A LARGER NUMBER OF BUILDINGS AND EMPLOYEES AT THE ACTIVITY.
THE MEMORANDUM LISTED FOUR "COMBINED AREAS" OF REPRESENTATION AND
REQUESTED THE UNION TO SUBMIT THE NAMES OF ITS FOUR NOMINEES BY JANUARY
8, 1979.
BY MEMORANDUM DATED JANUARY 8, 1979, THE UNION PRESIDENT FORMALLY
REQUESTED TO NEGOTIATE WITH RESPECT TO THE PROPOSED CHANGE IN THE
MEMBERSHIP OF THE SAFETY COMMITTEE. HE STATED THAT RESPONDENT DID NOT
HAVE A RIGHT TO MAKE THIS CHANGE UNILATERALLY. THE COMMANDING OFFICER
RESPONDED BY MEMORANDUM DATED JANUARY 17, 1979, THAT RESPONDENT WAS NOT
OBLIGATED TO BARGAIN OVER THIS CHANGE BECAUSE "THE NUMBER OF EMPLOYEES
APPOINTED TO A PROJECT IS WITHIN MY PURVIEW AND AUTHORITY" AND BECAUSE
IT WOULD IMPROVE THE EFFICIENCY AND COST EFFECTIVENESS OF THE RESPONDENT
ACTIVITY. HE FURTHER STATED THAT UNLESS THE UNION PROVIDED ITS FOUR
NOMINEES TO MATCH RESPONDENT'S FOUR NOMINEES PRIOR TO JANUARY 19, THE
SAFETY COMMITTEE MEETING WOULD BE HELD WITHOUT UNION PARTICIPATION. BY
MEMORANDUM DATED JANUARY 18, THE UNION PRESIDENT AGAIN TOLD THE
COMMANDING OFFICER THAT THE RESPONDENT COULD NOT UNILATERALLY CHANGE THE
COMPOSITION OF THE SAFETY COMMITTEE.
NOTWITHSTANDING THE PROTESTATIONS OF THE UNION, RESPONDENT REFUSED TO
BARGAIN AND HELD THE JANUARY 19, 1979 SAFETY COMMITTEE MEETING WITH A
REDUCED NUMBER OF MANAGEMENT REPRESENTATIVES AND WITHOUT ANY UNION
REPRESENTATION.
C. CONCLUSIONS OF LAW
THE BASIC QUESTION IN THIS CASE IS WHETHER THE UNILATERAL REDUCTION
IN UNION MEMBERSHIP ON THE COMMITTEE CONSTITUTED A VIOLATION OF SECTIONS
7116(A)(1) AND (5) OF THE STATUTE. IT IS AXIOMATIC THAT AGENCY
MANAGEMENT IS GENERALLY EXPECTED TO BARGAIN IN GOOD FAITH WITH THE UNION
WITH RESPECT TO CONDITIONS OF EMPLOYMENT AFFECTING BARGAINING UNIT
EMPLOYEES, AND CANNOT MAKE CHANGES IN THESE CONDITIONS WITHOUT DOING SO.
SEE 5 U.S.C. 7103 (12). THESE CONDITIONS OF EMPLOYMENT INCLUDE
"MATTERS . . . AFFECTING WORKING CONDITIONS." 5 U.S.C. 7103 (14). IT IS
CLEAR THAT THE ACTIVITY'S LARGE REDUCTION OF THE NUMBER OF UNION
REPRESENTATIVES ON THE SAFETY COMMITTEE CONSTITUTED A DRAMATIC CHANGE IN
THE COMPOSITION OF A COMMITTEE DESIGNED TO PROTECT UNIT EMPLOYEES FROM
HAZARDOUS WORKING CONDITIONS. THE ORIGINAL COMPOSITION OF THE SAFETY
COMMITTEE, WHICH INCLUDED 15 UNION REPRESENTATIVES, WAS A
WELL-ESTABLISHED AND LONG-STANDING CONDITION OF EMPLOYMENT. THERE IS NO
ARGUMENT ABOUT THE FACT THAT THIS CONDITION HAD EXISTED FOR MANY YEARS.
LIKEWISE, IT SEEMS CLEAR THAT THE COMPOSITION OF THE COMMITTEE WAS, IN
FACT, A "CONDITION OF EMPLOYMENT" WITHIN THE MEANING OF THE STATUTE.
THIS POSITION FINDS SUPPORT IN A CASE UNDER E.O. 11491 HOLDING THAT AN
AGENCY MUST BARGAIN ABOUT THE ESTABLISHMENT AND MEMBERSHIP OF A SAFETY
COMMITTEE. U.S. ENVIRONMENTAL PROTECTION AGENCY, REGION III, A/SLMR NO.
997, 8 A/SLMR 258 (1978). IF THE ESTABLISHMENT OF A SAFETY COMMITTEE IS
A NEGOTIABLE MATTER, IT FOLLOWS THAT A DRAMATIC ALTERATION OF THE
COMPOSITION OF THE COMMITTEE WOULD ALSO BE NEGOTIABLE. THIS IS
PARTICULARLY TRUE IN THE INSTANT CASE WHERE THE UNIT EMPLOYEES ON THE
COMMITTEE WERE APPOINTED BY THE UNION AND WERE PERFORMING PROTECTED,
REPRESENTATIONAL DUTIES. BY REDUCING THE NUMBER OF UNION
REPRESENTATIVES FROM 15 TO FOUR, THE STRENGTH OF EMPLOYEE REPRESENTATION
WAS DILUTED.
ON THE OTHER HAND, RESPONDENT ARGUES THAT IT WAS MERELY CHANGING THE
NUMBER OF EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL SUBDIVISION OR "WORK
PROJECT" WITHIN THE MEANING OF SECTION 7106(B)(1) OF THE STATUTE, AND
THAT IT WAS, THEREFORE, ENTITLED TO ELECT TO MAKE A UNILATERAL CHANGE.
I DISAGREE. IN THE FIRST PLACE, THIS COMMITTEE WAS INDEPENDENT AND
FREE-STANDING, AND WAS IN NO WAY A "SUBDIVISION" WITHIN THE
ORGANIZATIONAL STRUCTURE. THE COMMITTEE WAS ESTABLISHED PURSUANT TO THE
PARTIES' COLLECTIVE BARGAINING AGREEMENT; THUS IT HAD ITS GENESIS IN
THE UNION-MANAGEMENT BARGAINING RELATIONSHIP RATHER THAN A MANAGEMENT
DIRECTIVE.
IN ADDITION, I AM CONSTRAINED TO HOLD THAT CONGRESS DID NOT INTEND TO
INCLUDE THIS TYPE OF UNION-MANAGEMENT SAFETY COMMITTEE WITHIN THE
MEANING OF A "WORK PROJECT" UNDER SECTION 7106(B)(1). THAT SECTION
MAKES THE NUMBER OF EMPLOYEES ASSIGNED TO A WORK PROJECT A MATTER ABOUT
WHICH MANAGEMENT MAY OR MAY NOT ELECT TO BARGAIN. BUT CONGRESS WAS
OBVIOUSLY SPEAKING ONLY ABOUT THE AGENCY'S "WORK," I.E. WORK THAT IS
DIRECTLY AND INTEGRALLY RELATED TO THE ACCOMPLISHMENT OF THE MISSION OF
THE AGENCY. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, AND
AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, CASE
NO. 0-NG-40, 2 FLRA NO. 77 AT 15 (JANUARY 31, 1980), REPORT NO. . . .
THE FUNCTION OF THE SAFETY COMMITTEE IN THIS CASE LACKS THE REQUISITE
RELATIONSHIP TO NAVAL ORDNANCE; FURTHERMORE, THE COMMITTEE WAS CREATED
BY BOTH THE UNION AND THE AGENCY. THE PARTIES' NEGOTIATED AGREEMENT
ALSO PRESCRIBED THE FUNCTION AND DUTIES OF THE COMMITTEE. THERE IS NO
EVIDENCE THAT ANY AGENCY DIRECTIVE WAS INVOLVED. AFTER THE NEGOTIATED
AGREEMENT EXPIRED IN SEPTEMBER OF 1977, THE COMMITTEE CONTINUED TO MEET
IN THE SAME MANNER AND FORM AS IT HAD IN THE PAST UNTIL RESPONDENT
UNILATERALLY CHANGED IT IN JANUARY OF 1979. IT IS WELL-SETTLED THAT,
WITH CERTAIN EXCEPTIONS NOT RELEVANT HERETO, UPON THE EXPIRATION OF A
NEGOTIATED AGREEMENT, EXISTING PERSONNEL POLICIES AND PRACTICES AND
MATTERS AFFECTING WORKING CONDITIONS CONTINUE AS ESTABLISHED AND CANNOT
BE CHANGED UNILATERALLY UNLESS A "PERMISSIVE" SUBJECT OF BARGAINING /6/
IS INVOLVED. INTERNAL REVENUE SERVICE, OGDEN SERVICE CENTER, ET AL.,
FLRC NOS. 77A-40, 77A-92, 6 FLRC 310 (1978).
SINCE RESPONDENT HAS FAILED TO DEMONSTRATE THAT THE UNILATERAL CHANGE
IN THE ESTABLISHED NUMBER OF UNION REPRESENTATIVES ON THE SAFETY
COMMITTEE WAS MADE PURSUANT TO ANY RESERVED MANAGEMENT RIGHT OR
PREROGATIVE, I MUST CONCLUDE THAT ITS ACTION CONSTITUTED A REFUSAL TO
NEGOTIATE IN VIOLATION OF SECTIONS 7116(A)(5) AND (1) OF THE STATUTE.
III. PROMOTION PRACTICES AND PROCEDURES
A. ISSUES
THE NEXT QUESTIONS PRESENTED FOR DECISION ARISE OUT OF RESPONDENT'S
CANCELLATION OF CERTAIN ESTABLISHED HIRING AND PROMOTION PRACTICES,
POLICIES, AND PROCEDURES. THE ISSUES ARE (1) WHICH POLICIES AND/OR
PROCEDURES WERE CANCELED, (2) WHETHER THE DECISIONS TO CANCEL CONCERNED
NEGOTIABLE MATTERS, AND (3) WHETHER THE RESPONDENT GAVE THE UNION
REASONABLE NOTICE AND AN OPPORTUNITY TO NEGOTIATE ABOUT EITHER THE BASIC
DECISIONS OR THE IMPACT AND IMPLEMENTATION OF SUCH DECISIONS.
B. FINDINGS OF FACT
THE EFFECTIVE DATE OF THE STATUTE WAS JANUARY 11, 1979. SECTION 7106
PROVIDES, IN PERTINENT PART, AS FOLLOWS:
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE
AUTHORITY OF ANY MANAGEMENT OFFICIAL OR ANY AGENCY--
. . . (2) IN ACCORDANCE WITH APPLICABLE LAWS--
. . . (C) WITH RESPECT TO FILLING POSITIONS TO MAKE SELECTIONS FOR
APPOINTMENTS FROM--
(I) AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR PROMOTION; OR
(II) ANY OTHER APPROPRIATE SOURCE . . .
AS PREVIOUSLY STATED, THE NEGOTIATED AGREEMENT BETWEEN THE UNION AND
RESPONDENT EXPIRED IN SEPTEMBER OF 1977. ARTICLE 15 WAS A
COMPREHENSIVE, TEN-PAGE PORTION OF THAT AGREEMENT RELATING TO
"PROMOTIONS." AFTER THE EXPIRATION OF THE AGREEMENT RESPONDENT CONTINUED
TO FOLLOW, WITH CERTAIN EXCEPTIONS NOT RELEVANT HEREIN, THE PRACTICES,
PROCEDURES AND POLICIES SET FORTH IN ARTICLE 15. HOWEVER, AFTER THE
EFFECTIVE DATE OF THE NEW FSLMR STATUTE, AND ON OR SHORTLY BEFORE
FEBRUARY 8, 1979, RESPONDENT MADE A FINAL DECISION TO UNILATERALLY
CANCEL CERTAIN OF THESE PRACTICES AND POLICIES WHICH IT CONSIDERED
NEGATED BY SECTION 7106(A)(2)(C) OF THE STATUTE. NO NOTICE WAS GIVEN TO
THE UNION PRIOR TO MAKING THIS DECISION. THE CANCELLED PRACTICES,
PROCEDURES, AND POLICIES ARE SET FORTH IN THE EXPIRED AGREEMENT AS
FOLLOWS:
SECTION 2. AREA OF CONSIDERATION
A. THE INITIAL AREA OF CONSIDERATION FOR ALL VACANCIES FOR WHICH
EMPLOYEES IN THE UNIT ARE
ELIGIBLE WILL BE NOSL AND THE VOLUNTARY APPLICATION FILE.
. . . .
SECTION 3. POSTING AND FILING FOR VACANCIES
A. ANNOUNCEMENTS OF VACANT POSITIONS WITHIN THE UNIT SHALL BE POSTED
ON ALL BULLETIN
BOARDS FOR AT LEAST FIVE WORKING DAYS UNLESS:
(1) THERE IS AN ESTABLISHED REGISTER, OR
(2) THERE IS NO ESTABLISHED REGISTER AND THE VACANCY IS FILLED BY
REASSIGNMENT.
. . . .
D. ALL EMPLOYEES IN THE UNIT SHALL HAVE THE RIGHT TO FILE
APPLICATION OR A NOTICE OF
INTENT FOR ANY VACANCY.
. . . .
SECTION 4. PROCEDURE FOR RATING AND RANKING
. . . .
B. THE EMPLOYER AGREES THAT ALL ELIGIBLE PERSONNEL INCLUDING THOSE
ON THE VOLUNTARY
APPLICATION FILE (VAF) WHO WISH TO BE CONSIDERED FOR A VACANCY, BY
VIRTUE OF RE-INSTATEMENT,
RE-ASSIGNMENT, TRANSFER OR PROMOTION UNDER THIS MERIT PROMOTION AND
INTERNAL PLACEMENT PLAN
SHALL MEET THE SAME STANDARDS AND BE SUBJECTED TO THE SAME CRITERIA
AS SHALL MEET THE SAME
STANDARDS AND BE SUBJECTED TO THE SAME CRITERIA AS ALL OTHER
CANDIDATES, INCLUDING BEING
PLACED ON THE SAME REGISTER AND TANKED IN THE SAME MANNER . . .
SECTION 5. REGISTERS
. . . .
C. REGISTERS SHALL NOT BE ESTABLISHED AT A HIGHER OR LOWER GRADE TO
EVADE AN ESTABLISHED
REGISTER; NOR SHALL A TRAINEE POSITION BE ESTABLISHED FOR A POSITION
WHEN A REGISTER IS
ALREADY ESTABLISHED TO FILL THE VACANCY AND/OR THERE ARE WELL
QUALIFIED CANDIDATES TO FILL THE
POSITION.
. . . .
SECTION 6. SELECTION PROCEDURES AND RULES
A. SELECTIONS FOR FILLING POSITIONS WITHIN THE UNIT WILL BE MADE
AFTER INTERVIEWING ALL
CERTIFIED CANDIDATES FROM AMONG THE TOP THREE ELIGIBLES ON THE
REGISTER WITHOUT DISCRIMINATION
IN SELECTION FOR ANY REASON NOT RELATED TO QUALIFICATIONS TO PERFORM
THE DUTIES ENTAILED IN
THE POSITION.
B. THE SELECTING OFFICIAL WILL BE PROVIDED A CERTIFICATE OF THE TOP
THREE RATED
CANDIDATES. HOWEVER, IF THERE ARE ONLY ONE OR TWO WELL QUALIFIED
CANDIDATES, THE SELECTING
OFFICIAL MAY CHOOSE ONE OF THESE WITHOUT EXTENDING THE AREA OF
CONSIDERATION. IF THIS
PROCEDURE IS NOT FOLLOWED, AND THE AREA OF CONSIDERATION IS EXPANDED
BEYOND THE STATION, THE
SELECTION SHALL RESULT IN A CLEARLY BETTER QUALIFIED CANDIDATE.
RESPONDENT ALSO THOUGHT CERTAIN OTHER SECTIONS OF THE EXPIRED
AGREEMENT "MAY" ALSO HAVE BEEN NEGATED BY THE NEW STATUTE, BUT NO FINAL
DECISION WAS MADE REGARDING THE CANCELLATION OF THOSE SECTIONS.
AFTER CANCELING THE ABOVE PROVISIONS, ON FEBRUARY 8, 1979, R.E.
LONG, THE RESPONDENT'S CIVILIAN PERSONNEL OFFICER, SENT THE FOLLOWING
MEMORANDUM TO THE UNION PRESIDENT:
AFTER REVIEW OF (THE STATUTE) THERE ARE A NUMBER OF PROVISIONS,
CONTAINED IN ARTICLE 15,
WHICH INFRINGE ON MANAGEMENT RIGHTS (PARA. 7106(A)(2)(C)). YOU ARE
HEREBY NOTIFIED THAT ANY
PROVISIONS CONTAINED IN ARTICLE 15, WHICH INFRINGES (SIC) ON
MANAGEMENT'S RIGHT TO SELECT FROM
PROPERLY RANKED AND CERTIFIED REGISTERS OR ANY OTHER APPROPRIATE
SOURCE
(I.E. REASSIGNMENT; RECRUITMENT FROM OUTSIDE SOURCES, WHEN DEEMED
NECESSARY; UPWARD MOBILITY,
ETC.) ARE CONSIDERED TO HAVE BEEN NEGATED BY THE IMPLEMENTATION OF
(THE STATUTE) ON 11 JANUARY
1979.
BY MEMORANDUM TO THE RESPONDENT'S COMMANDING OFFICER DATED FEBRUARY
9, 1979, THE UNION PRESIDENT RESPONDED TO LONG'S FEBRUARY 8 MEMORANDUM.
HE STATED THAT HE EXPECTED RESPONDENT TO HONOR ALL COMMITMENTS MADE IN
THE NEGOTIATED AGREEMENT AND "FAILING THIS, TO NEGOTIATE ANY CHANGES."
HE STATED THAT HE WAS AVAILABLE TO CONDUCT APPROPRIATE NEGOTIATIONS AS
REQUIRED. RESPONDENT FAILED TO REPLY TO THE UNION'S FEBRUARY 9
MEMORANDUM.
TWO WEEKS LATER THE UNION PRESIDENT CALLED LONG AND ASKED WHEN THEY
WOULD MEET SO THAT HE COULD UNDERSTAND WHAT LONG MEANT IN THE FEBRUARY 8
MEMORANDUM. HE LATER SAW LONG IN THE HALLWAY AND ASKED THE SAME
QUESTION. ON BOTH OCCASIONS LONG SAID HE WOULD GET TOGETHER WITH HIM
LATER. DURING THE CONVERSATION IN THE HALLWAY, THE UNION PRESIDENT
SPECIFICALLY ASKED LONG WHAT RESPONDENT'S POSITION WAS, BUT LONG FAILED
TO ANSWER THE QUESTION. DURING THESE CONVERSATIONS THE PRESIDENT NEVER
SPECIFICALLY REQUESTED NEGOTIATIONS OVER IMPACT AND IMPLEMENTATION
BECAUSE TO DO SO WOULD HAVE BEEN PREMATURE-- HE DID NOT YET KNOW WHAT
CHANGES HAD BEEN MADE.
WHEN NO FURTHER RESPONSE WAS RECEIVED FROM RESPONDENT, ON MARCH 5,
1979, THE UNION FILED ITS ORIGINAL CHARGE INITIATING THE INSTANT ACTION.
SUBSEQUENTLY, THE RESPONDENT IMPLEMENTED SOME OF THE ABOVE-MENTIONED
CHANGES WHEN EMPLOYEES WERE INTERVIEWED BEFORE RATING NOTICES WERE SENT
OUT AND RESPONDENT HIRED PEOPLE FROM OUTSIDE THE ACTIVITY WITHOUT FIRST
ESTABLISHING INTERNAL REGISTERS. SUBSEQUENTLY, IN OCTOBER OF 1979,
RESPONDENT ISSUED SIX VACANCY ANNOUNCEMENTS WITH "NATIONWIDE" AREAS OF
CONSIDERATION. THESE ACTIONS WERE ALL TAKEN PURSUANT TO THE DECISIONS
MADE ON OR ABOUT FEBRUARY 8, 1979.
C. CONCLUSIONS OF LAW
IT IS FIRST NECESSARY TO DETERMINE WHAT PRECISE CHANGES WERE MADE BY
RESPONDENT REGARDING ITS PROMOTION/HIRING PRACTICES, PROCEDURES, AND
POLICIES. I HAVE CONCLUDED, BASED ON THE TESTIMONY OF MR. LONG,
RESPONDENT'S CIVILIAN PERSONNEL OFFICER, THAT RESPONDENT MADE A FINAL
DECISION ON OR ABOUT FEBRUARY 8, 1979, TO UNILATERALLY CANCEL CERTAIN
ESTABLISHED PRACTICES. THESE HAVE BEEN SET FORTH IN DETAIL IN MY
FINDINGS OF FACT. /7/ ALTHOUGH THE COMPLAINT ALLEGES THAT CERTAIN OTHER
CHANGES WERE ALSO MADE BY RESPONDENT, THESE ALLEGATIONS WERE BASED UPON
AN AFFIDAVIT /8/ EXECUTED BY MR. LONG (RESPONDENT'S EXHIBIT 1).
HOWEVER, AT THE HEARING LONG CLARIFIED THE STATEMENTS IN THE AFFIDAVIT
AND TESTIFIED WITH CANDOR THAT CERTAIN PROVISIONS OF THE OLD NEGOTIATED
AGREEMENT WERE CONSIDERED "ABSOLUTELY NEGATED" BY THE NEW STATUTE,
WHEREAS NO DECISION HAD BEEN MADE REGARDING OTHER PROVISIONS WHICH HE
CONCLUDED MIGHT "POSSIBLY" HAVE BEEN NEGATED. I MUST CONCLUDE THAT THE
GENERAL COUNSEL HAS FAILED TO SUSTAIN HIS BURDEN OF PROVING THAT A FINAL
DECISION WAS MADE TO CANCEL THE LATTER, "QUESTIONABLE" PROVISIONS. /9/
IT IS CLEAR THAT MANAGEMENT DID NOT NOTIFY THE UNION PRIOR TO MAKING
THE FINAL DECISION TO CANCEL THE ABOVE PROMOTION PRACTICES AND
PROCEDURES. IF ANY OF THESE CHANGES CONCERNED NEGOTIABLE MATTERS, THEN
THE FAILURE TO GIVE THE UNION AN OPPORTUNITY TO BARGAIN ABOUT THE
DECISION WOULD BE A CLEAR VIOLATION OF SECTION 7116(A)(5) AND (1) OF THE
STATUTE. INTERNAL REVENUE SERVICE, OGDEN SERVICE CENTER, ET AL. SUPRA.
THUS EACH OF THE UNILATERAL CHANGES MADE MUST BE EXAMINED TO
DETERMINE WHETHER THEY CONCERNED NEGOTIABLE MATTERS. RESPONDENT
APPARENTLY ASSUMES THAT ALL OF THESE CHANGES WERE NONNEGOTIABLE AND
WERE
MADE PURSUANT TO MANAGEMENT'S RIGHT UNDER SECTION 7106(A)(2)(C) WITH
RESPECT TO FILLING POSITIONS, TO MAKE SELECTIONS FROM AMONG PROPERLY
RANKED AND CERTIFIED CANDIDATES FOR PROMOTION OR FROM ANY OTHER
APPROPRIATE SOURCE. I AGREE WITH RESPONDENT ON ONLY TWO OF THE CHANGES
THAT WERE MADE; THE REMAINING CHANGES CONCERNED NEGOTIABLE "PROCEDURES"
UNDER SECTION 7106(B) (2). THE CANCELLED PRACTICES, PROCEDURES, AND
POLICIES ARE REFERRED TO BELOW, FOR CONVENIENCE, BY THEIR PREVIOUSLY
DESIGNATED SECTION NUMBERS IN ARTICLE 15 OF THE EXPIRED NEGOTIATED
AGREEMENT:
1. SECTION 2(A). IT HAD BEEN AN ESTABLISHED PRACTICE THAT THE
"INITIAL" AREA OF CONSIDERATION FOR ALL VACANCIES FOR WHICH EMPLOYEES IN
THE UNIT WERE ELIGIBLE WAS THE RESPONDENT ACTIVITY AND THE "VOLUNTARY
APPLICATION FILE" (THE LATTER CONSISTING OF CERTAIN DOD EMPLOYEES FROM
OTHER ACTIVITIES.) RESPONDENT ARGUES THAT THIS PROVISION CONFLICTS WITH
ITS RIGHT UNDER SECTION 7106(A)(2)(C) TO MAKE SELECTIONS FROM ANY
APPROPRIATE SOURCE. I DISAGREE AND HELD THAT THE INSTANT PROVISION
CONSTITUTED A NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2). IN A
RECENT CASE, THE AUTHORITY HELD THAT A UNION PROPOSAL CONTAINING SIMILAR
LANGUAGE WAS NEGOTIABLE UNDER THAT SECTION. AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO LOCAL 331 AND VETERANS ADMINISTRATION
HOSPITAL, PERRY POINT, MARYLAND, CASE NO. 0-NG-17, 2 FLRA NO. 59,
(JANUARY 17, 1980), REPORT NO. . . . THERE IT WAS HELD THAT CONGRESS
INTENDED TO PRESERVE MANAGEMENT'S RIGHT TO SELECT IN FILLING A POSITION,
BUT ALSO INTENDED TO AFFORD THE PARTIES AN OPPORTUNITY TO NEGOTIATE
CONCERNING STANDARDS, CRITERIA AND PROCEDURES TO THE EXTENT THAT
BARGAINING ON SUCH MATTERS WOULD NOT PREVENT MANAGEMENT FROM EXERCISING
ITS RIGHT TO MAKE THE ACTUAL SELECTION. SEE ALSO, NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 6 AND INTERNAL REVENUE SERVICE, NEW ORLEANS
DISTRICT OFFICE, CASE NO. 0-NG-9, 1 FLRA NO. 102 (AUGUST 23, 1979),
REPORT NO. 15.
IN THE INSTANT CASE, THE ACTIVITY AND VOLUNTARY APPLICATION FILE HAD
FOR YEARS BEEN THE INITIAL AREA OF CONSIDERATION. THUS RESPONDENT WAS
NOT LIMITED TO CONSIDERATION OF THOSE APPLICANTS AND WAS NOT PREVENTED
FROM EXPANDING THE AREA OF CONSIDERATION ONCE THE INITIAL AREA WAS
CONSIDERED AND EXHAUSTED. THUS IT WAS NOT PREVENTED FROM ULTIMATELY
SELECTING FROM "ANY . . . APPROPRIATE SOURCE" UNDER SECTION 7106(A).
2. SECTION 3(A). THIS SECTION PROVIDED THAT WITH CERTAIN
EXCEPTIONS, ANNOUNCEMENTS OF VACANT POSITIONS WITHIN THE UNIT SHALL BE
POSTED ON ALL BULLETIN BOARDS FOR AT LEAST FIVE WORKING DAYS. THIS ALSO
REPRESENTED A NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2). THIS
PROCEDURE CLEARLY DID NOT PREVENT RESPONDENT FROM EXERCISING ITS RIGHT
TO MAKE A SELECTION IN FILLING VACANCIES; I.E. POSTING DID NOT PREVENT
THE AGENCY FROM "ACTING AT ALL" IN EXERCISING THIS RIGHT. NATIONAL
TREASURY EMPLOYEES UNION AND INTERNAL REVENUE SERVICE, CASE NO.
0-NG-109, 2 FLRA NO. 33, (DEC. 21, 1979), REPORT NO. 24.
3. SECTION 3(D). HERE THE PRIOR PRACTICE OF GIVING ALL EMPLOYEES IN
THE UNIT THE RIGHT TO FILE APPLICATION OR A NOTICE OF INTENT FOR ANY
VACANCY WAS CANCELLED. SINCE THE UNIT EMPLOYEES' ESTABLISHED RIGHT TO
APPLY DID NOT PREVENT RESPONDENT FROM EXERCISING ITS RIGHT TO MAKE
SELECTIONS, THE PRACTICE CONSTITUTED A NEGOTIABLE PROCEDURE AS IN THE
CHANGES DISCUSSED IN PARAGRAPHS (1) AND (2), ABOVE. VETERANS
ADMINISTRATION HOSPITAL, SUPRA.
4. SECTION 4(B). THIS WAS LABELED AS A "PROCEDURE FOR RATING AND
RANKING." PRIOR TO ITS CANCELLATION AND OR ABOUT FEBRUARY 8, 1979,
RESPONDENT HAD FOLLOWED THIS PROVISION:
. . . ALL ELIGIBLE PERSONNEL INCLUDING THOSE ON THE VOLUNTARY
APPLICATION FILE (VAF) WHO
WISH TO BE CONSIDERED FOR A VACANCY, BY VIRTUE OF RE-INSTATEMENT,
RE-ASSIGNMENT, TRANSFER OR
PROMOTION UNDER THIS MERIT PROMOTION AND INTERNAL PLACEMENT PLAN
SHALL MEET THE SAME STANDARDS
AND BE SUBJECTED TO THE SAME CRITERIA AS ALL OTHER CANDIDATES,
INCLUDING BEING PLACED ON THE
SAME REGISTER AND RANKED IN THE SAME MANNER . . .
AS PREVIOUSLY STATED IN THE DISCUSSION OF SECTION 2(A), THE AUTHORITY
HELD IN VETERANS ADMINISTRATION HOSPITAL, SUPRA, THAT PROMOTION
STANDARDS AND CRITERIA WERE NEGOTIABLE UNLESS MANAGEMENT WAS PRECLUDED
FROM MAKING THE ACTUAL SELECTION. THEREFORE, SECTION 4(B) IS A
NEGOTIABLE MATTER.
5. SECTION 5(C). THE FIRST PART OF THIS SECTION PROVIDED THAT
REGISTERS COULD NOT BE ESTABLISHED AT A HIGHER OR LOWER GRADE LEVEL TO
EVADE AN ESTABLISHED REGISTER. I INTERPRET THIS AS REQUIRING MANAGEMENT
TO CONSIDER AND EXHAUST THE ESTABLISHED REGISTER FIRST, AND THAT IT
WOULD THEREAFTER BE FREE TO ESTABLISH THEIR REGISTERS. SINCE THIS WOULD
NOT PREVENT RESPONDENT FROM MAKING THE ULTIMATE SELECTION, THIS CLAUSE
REPRESENTED A NEGOTIABLE PROCEDURE. VETERANS ADMINISTRATION HOSPITAL,
SUPRA.
HOWEVER, THE SECOND PART OF SECTION 5(C) DID PREVENT RESPONDENT FROM
EXERCISING ITS RIGHT IN FILLING POSITIONS TO MAKE A SELECTION. IT
PROVIDED THAT A TRAINEE POSITION COULD NOT BE ESTABLISHED FOR A POSITION
WHEN A REGISTER WAS ALREADY ESTABLISHED TO FILL THE VACANCY AND/OR THERE
WERE WELL QUALIFIED CANDIDATES TO FILL THE POSITION. THUS THE EXISTENCE
OF EITHER A) AN ESTABLISHED REGISTER OR B) WELL QUALIFIED CANDIDATES
WOULD PREVENT MANAGEMENT FROM EXERCISING THE OPTION OF FILLING A
POSITION WITH A TRAINEE WHEN IT WAS NOT SATISFIED WITH THE EXISTING
CANDIDATES. I CONCLUDE THAT THE BASIC DECISION TO CANCEL THIS PRACTICE
DOES NOT FALL WITHIN RESPONDENT'S OBLIGATION TO BARGAIN AND THAT IT WAS
ONLY NECESSARY FOR IT TO FIVE THE UNION NOTICE AND AN OPPORTUNITY TO
BARGAIN OVER THE IMPACT AND IMPLEMENTATION OF THE DECISION.
6. SECTION 6(A). THIS PROVISION REQUIRED RESPONDENT TO INTERVIEW
ALL CERTIFIED CANDIDATES FROM AMONG THE TOP THREE ELIGIBLES ON THE
REGISTER BEFORE MAKING SELECTIONS FOR FILLING POSITIONS. AS IN THE CASE
OF SECTION 2(A), I HOLD THAT THIS WAS A NEGOTIABLE PROCEDURE SINCE THIS
INTERVIEWING PROCESS DID NOT PREVENT MANAGEMENT FROM MAKING ITS ULTIMATE
SELECTION FROM SOME OTHER APPROPRIATE SOURCE.
7. SECTION 6(B). THE FIRST SENTENCE OF THIS PROVISION MERELY
REQUIRES THAT THE SELECTING OFFICIAL BE PROVIDED WITH A CERTIFICATE OF
THE TOP THREE RATED CANDIDATES. AS IN THE CASE OF SECTION 6(A), THIS IS
CLEARLY A NEGOTIABLE PROCEDURE.
THE SECTION THEN PROVIDES:
. . . HOWEVER, IF THERE ARE ONLY ONE OR TWO WELL QUALIFIED
CANDIDATES, THE SELECTING
OFFICIAL MAY CHOOSE ONE OF THESE WITHOUT EXTENDING THE AREA OF
CONSIDERATION. IF THIS
PROCEDURE IS NOT FOLLOWED, AND THE AREA OF CONSIDERATION IS EXPANDED
BEYOND THE STATION
(ACTIVITY), THE SELECTION SHALL RESULT IN A CLEARLY BETTER QUALIFIED
CANDIDATE.
OBVIOUSLY, THE FIRST SENTENCE OF THE QUOTED MATERIAL GIVES RESPONDENT
FREEDOM TO EXPAND THE AREA OF CONSIDERATION AND DOES NOT CONFLICT WITH
ANY MANAGEMENT RIGHT. HOWEVER, THE REMAINDER OF THE PROVISION DOES.
UNDER THIS PRACTICE, IF MANAGEMENT FOUND TWO CANDIDATES WITH ROUGHLY
EQUAL QUALIFICATIONS, ONE FROM THE ACTIVITY AND ONE FROM OUTSIDE THE
ACTIVITY, MANAGEMENT WOULD BE FORCED TO SELECT THE CANDIDATE FROM WITHIN
THE ACTIVITY. THIS WOULD BE SO BECAUSE IT COULD NOT BE SAID IN THIS
EXAMPLE, THAT THE "OUTSIDE" APPLICANT WAS "CLEARLY BETTER QUALIFIED."
THEREFORE I MUST CONCLUDE THAT THIS PORTION OF SECTION 6(A) IS NOT
NEGOTIABLE BECAUSE IT CONFLICTS WITH RESPONDENT'S RIGHT TO SELECT UNDER
SECTION 7106(A)(2)(C) OF THE STATUTE. RESPONDENT IS ONLY REQUIRED TO
GIVE THE UNION NOTICE AND AN OPPORTUNITY TO BARGAIN WITH RESPECT TO THE
IMPACT AND IMPLEMENTATION OF ITS DECISION TO CHANGE THIS PRACTICE.
UNFAIR LABOR PRACTICES. SINCE IT IS BEYOND DISPUTE THAT RESPONDENT
FAILED TO GIVE THE UNION ANY NOTICE OR OPPORTUNITY TO REQUEST BARGAINING
BEFORE MAKING THE BASIC DECISION TO CANCEL THE PRACTICES FOUND TO BE
NEGOTIABLE HEREINABOVE, I HOLD THAT RESPONDENT VIOLATED SECTION
7116(A)(5) AND (1) BY ACTING UNILATERALLY AND EFFECTIVELY REFUSING TO
NEGOTIATE. INTERNAL REVENUE SERVICE, OGDEN SERVICE CENTER, AND INTERNAL
REVENUE SERVICE, ET AL., FLRC NOS. 77A-40, 77A-92, 6 FLRC 310 (1976).
ON BRIEF THE CHARGING PARTY HAS REQUESTED THAT THE REMEDIAL ORDER
INCLUDE A RETURN TO THE STATUS QUO ANTE, WHICH PRESUMABLY WOULD INCLUDE
THE REVOCATIONS OF ANY PROMOTIONS IMPROPERLY MADE. ALTHOUGH I AGREE
THAT THE CHANGES CONCERNING NEGOTIABLE MATTERS SHOULD BE REVOKED, AN
APPROPRIATE REMEDY IN THIS MATTER SHOULD INCLUDE THE REVOCATION OF ANY
PROMOTIONS MADE PURSUANT TO THE NEW PROCEDURES ONLY IF, UPON AN
EVALUATION OF ELIGIBLE APPLICANTS UNDER APPROPRIATE CRITERIA, IF IS
ESTABLISHED THAT THE ORIGINAL PROMOTION INVOLVED WAS IMPROPER. IN THE
LATTER EVENT, I SHALL RECOMMEND THAT THE POSITION WHICH WAS IMPROPERLY
FILLED BE VACATED AND THAT, CONSISTENT WITH THE PROCEDURES CONTAINED IN
THE EXPIRED NEGOTIATED AGREEMENT AND AGENCY POLICIES AND REGULATIONS IN
EXISTENCE PRIOR TO THE CHANGES, THE EMPLOYEE ENTITLED TO SUCH POSITION
BE PROMOTED WITH REIMBURSEMENT FOR THE LOSS OF MONIES SUCH EMPLOYEE MAY
HAVE SUFFERED BUT FOR RESPONDENT'S IMPROPER CONDUCT. SMALL BUSINESS
ADMINISTRATION, RICHMOND, VIRGINIA, DISTRICT OFFICE, A/SLMR NO. 674, 6
A/SLMR 350 (1976). FURTHERMORE, WHERE UNIT VACANCIES HAVE NOT YET BEEN
FILLED, THE SELECTION PROCESS SHOULD BE HALTED AND REINSTITUTED IN
ACCORDANCE WITH THE ESTABLISHED PRIOR PRACTICES SET FORTH IN ARTICLE 15
OF THE EXPIRED AGREEMENT.
THE NEXT ISSUE IS WHETHER RESPONDENT VIOLATED SECTION 7116(A)(5) AND
(1) WITH REGARD TO THE CHANGES WHICH ARE HELD ABOVE TO HAVE BEEN MADE
PURSUANT TO ITS RESERVED MANAGEMENT RIGHTS UNDER SECTION 7106(A). A
VIOLATION WILL BE FOUND UNLESS AGENCY MANAGEMENT AFFORDED THE UNION
PROPER NOTIFICATION AND OPPORTUNITY TO BARGAIN OVER THE IMPACT AND
IMPLEMENTATION OF THE AGENCY'S DECISION. /10/ UNITED STATES CUSTOMS
SERVICE, REGION VI, HOUSTON, TEXAS, A/SLMR NO. 1161, 8 A/SLMR 1305
(1978).
I MUST CONCLUDE THAT RESPONDENT NEVER PROPERLY NOTIFIED THE UNION OF
THE CHANGES THAT IT HAD MADE ON OR BEFORE FEBRUARY 8, 1979. CERTAINLY
MR. LONG'S MEMORANDUM OF THAT DATE TO THE UNION PRESIDENT FAILED TO
SPECIFY WHAT PROMOTION PRACTICES HAD BEEN CANCELLED. IT MERELY STATED
THAT "A NUMBER OF PROVISIONS IN ARTICLE 15" OF THE EXPIRED NEGOTIATED
AGREEMENT INFRINGED ON MANAGEMENT'S RIGHTS UNDER SECTION 7106(A)(2)(C)
AND WERE CONSIDERED NEGATED. SINCE ARTICLE 15 HAD A MULTITUDE OF
PROVISIONS WHICH ARGUABLY RELATED TO FILLING POSITIONS, IT WAS
IMPOSSIBLE FOR THE UNION TO KNOW WHICH SECTIONS, OR PORTIONS THEREOF,
HAD BEEN CANCELLED BY RESPONDENT. ON FEBRUARY 9, THE UNION REQUESTED
NEGOTIATIONS ON "ANY CHANGES." RESPONDENT FAILED TO REPLY TO THIS
REQUEST. SOON THEREAFTER THE UNION PRESIDENT ASKED LONG WHAT RESPONDENT
HAD MEANT IN THE FEBRUARY 8 MEMORANDUM. AGAIN, NO ANSWER WAS
FORTHCOMING. UNDER THESE CIRCUMSTANCES, I MUST CONCLUDE THAT RESPONDENT
VIOLATED SECTION 7116(A) (5)) AND (1) BECAUSE IT FAILED AND REFUSED TO
AFFORD THE UNION NOTICE AND/OR OPPORTUNITY TO BARGAIN AS TO THE IMPACT
AND IMPLEMENTATION OF THE DECISIONS. SINCE THE UNION WAS NEVER NOTIFIED
ABOUT THE CANCELLATION OF ANY SPECIFIC PRACTICES, IT WAS NEVER GIVEN ANY
MEANINGFUL OPPORTUNITY TO MAKE AN INFORMED DECISION ABOUT WHETHER TO
REQUEST NEGOTIATIONS ON IMPACT AND IMPLEMENTATION. THE RESPONDENT'S
ARGUMENT THAT THE UNION SHOULD HAVE MADE SUCH A SPECIFIC REQUEST UNDER
THESE CIRCUMSTANCES IS REJECTED.
FINALLY, RESPONDENT ARGUES THAT THE COMPLAINT FAILS TO RAISE THE
ABOVE ISSUE RELATING TO IMPACT AND IMPLEMENTATION BARGAINING. PARAGRAPH
8 OF THE COMPLAINT STATES THAT RESPONDENT CHANGED CERTAIN EXISTING
CONDITIONS OF EMPLOYMENT "WITHOUT FURNISHING THE UNION WITH NOTICE
AND/OR AN OPPORTUNITY TO BARGAIN CONCERNING SUCH CHANGES." IN MY VIEW IT
WOULD HAVE BEEN PREFERABLE FOR THE AUTHOR OF THE COMPLAINT TO HAVE ADDED
THE WORDS "AND/OR THE IMPACT AND IMPLEMENTATION OF SUCH CHANGES" TO THE
END OF THIS SENTENCE. HOWEVER, THE RESPONDENT MUST HAVE BROADLY
CONSTRUED THE COMPLAINT BECAUSE THE IMPACT AND IMPLEMENTATION QUESTION
WAS FULLY LITIGATED AT THE HEARING. UNDER THESE CIRCUMSTANCES,
RESPONDENT'S CONTENTION MUST BE REJECTED.
HAVING CONCLUDED THAT RESPONDENT VIOLATED SECTION 7116(A)(5) AND (1)
IN BOTH OF THE CONSOLIDATED CASES, I HEREBY RECOMMEND THAT THE AUTHORITY
ADOPT THE FOLLOWING ORDER:
ORDER
PURSUANT TO 5 U.S.C. 7118(A)(7) AND SECTION 2423.26 OF THE FINAL
RULES AND REGULATIONS, 45 FED.REG. 3482, 3510 (1980), IT IS HEREBY
ORDERED THAT THE DEPARTMENT OF DEFENSE, DEPARTMENT OF NAVY, NAVAL
ORDNANCE STATION, LOUISVILLE, KENTUCKY SHALL:
1. CEASE AND DESIST FROM:
(A) REDUCING THE NUMBER OF UNION REPRESENTATIVES ON THE
UNION-MANAGEMENT SAFETY COMMITTEE
WITHOUT NOTIFYING LOCAL LODGE 830, INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, AND
AFFORDING SUCH
REPRESENTATIVE THE OPPORTUNITY TO NEGOTIATE, TO THE EXTENT CONSONANT
WITH LAW AND REGULATIONS,
ON THE DECISION TO EFFECTUATE SUCH A CHANGE.
(B) CHANGING THE ESTABLISHED SELECTION PROCESS BY SEEKING CANDIDATES
FOR VACANCIES WITHOUT
FIRST EXHAUSTING THE GROUP OF ELIGIBLE CANDIDATES FROM NOSL AND
OTHERWISE COMPLYING WITH THE
PROMOTION PRACTICES PREVIOUSLY ENUNCIATED IN SECTIONS 2(A), 3(A),
3(D), 4(B), 5(C) (WITH THE
EXCEPTION OF THE TRAINEE CLAUSE), AND 6(A) OF ARTICLE 15 OF THE
NEGOTIATED AGREEMENT DATED
SEPTEMBER 20, 1974, WITHOUT FIRST NOTIFYING LOCAL LODGE 830,
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, THE EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES, AND
AFFORDING IT THE OPPORTUNITY TO NEGOTIATE, TO THE EXTENT CONSONANT
WITH LAW AND REGULATIONS,
ON THE DECISION TO EFFECTUATE SUCH CHANGES.
(C) UNILATERALLY CHANGING THE PROCEDURES REGARDING THE ESTABLISHMENT
OF TRAINEE POSITIONS
AND THE SELECTION OF CANDIDATES AS PREVIOUSLY ENUNCIATED IN SECTIONS
5(C) AND THE LAST
SENTENCE OF SECTION 6(B), RESPECTIVELY, OF ARTICLE 15 OF THE
ABOVE-MENTIONED AGREEMENT WITHOUT
NOTIFYING THE ABOVE EXCLUSIVE REPRESENTATIVE, AND AFFORDING IT THE
OPPORTUNITY TO NEGOTIATE,
TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE IMPACT AND
IMPLEMENTATION OF THE
DECISION TO EFFECTUATE SUCH CHANGES.
(D) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES
OF THE STATUTE:
(A) RESCIND THE CHANGES SET FORTH IN PARAGRAPHS 1(A) AND 1(B), ABOVE,
AND RESTORE ALL
CONDITIONS OF EMPLOYMENT REGARDING THESE MATTERS WHICH WERE IN EFFECT
PRIOR TO SUCH CHANGES.
(B) NOTIFY LOCAL LODGE 830, INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS,
AFL-CIO, OF ANY INTENDED DECISION TO IMPLEMENT THE CHANGES SET FORTH
IN 1(C) ABOVE AND, UPON
REQUEST, NEGOTIATE, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS,
ON THE IMPACT AND
IMPLEMENTATION OF SUCH DECISION.
(C) NOTIFY SAID EXCLUSIVE REPRESENTATIVE OF ANY INTENDED CHANGES IN
THE PROMOTION PRACTICES
AND PROCEDURES SET FORTH IN PARAGRAPH 1(B), ABOVE, AND, UPON REQUEST,
NEGOTIATE IN GOOD FAITH,
TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE DECISION TO
EFFECTUATE SUCH CHANGES.
(D) POST ALL JOB VACANCIES WHICH OCCURRED AT NAVAL ORDNANCE STATION,
LOUISVILLE, KENTUCKY,
AFTER FEBRUARY 8, 1979, IN ACCORDANCE WITH THE ESTABLISHED TERMS AND
CONDITIONS SET FORTH IN
THE NEGOTIATED AGREEMENT DATED SEPTEMBER 20, 1974, AND EVALUATE ALL
CANDIDATES FOR SUCH
VACANCIES UNDER THE ESTABLISHED TERMS AND CONDITIONS OF SAID
NEGOTIATED AGREEMENT AND THE
PUBLISHED AGENCY POLICIES AND REGULATIONS IN EXISTENCE PRIOR TO THE
CHANGES MADE ON OR ABOUT
FEBRUARY 8, 1979.
(E) IF, FOLLOWING THE ACTION TAKEN IN ACCORDANCE WITH PARAGRAPH 2(D)
ABOVE, IT SHOULD
DEVELOP THAT THERE WAS AN IMPROPER FAILURE TO PROMOTE AN EMPLOYEE,
THE POSITION TO WHICH SUCH
EMPLOYEE WOULD HAVE BEEN ENTITLED SHALL BE VACATED, AND THE EMPLOYEE
SHALL BE PROMOTED AND
REIMBURSED FOR ANY LOSS OF MONIES OCCASIONED BY THE IMPROPER FAILURE
TO PROMOTE.
(F) POST AT THE NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY, COPIES
OF THE ATTACHED NOTICE
MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON
RECEIPT OF SUCH FORMS, THEY
SHALL BE SIGNED BY THE COMMANDING OFFICER AT SAID ACTIVITY AND SHALL
BE POSTED AND MAINTAINED
BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES
INCLUDING ALL BULLETIN BOARDS
AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.
THE COMMANDING OFFICER
SHALL TAKE REASONABLE STEPS TO INSURE THAT SAID NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(G) PURSUANT TO SECTION 2423.30 OF THE FINAL RULES AND REGULATIONS,
45 FED.REG. AT 3511,
NOTIFY THE REGIONAL DIRECTOR OF REGION IV, SUITE 501, 1776 PEACHTREE
STREET, N.W., ATLANTA,
GEORGIA, 30309, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE
BEEN TAKEN TO COMPLY HEREWITH.
RANDOLPH D. MASON
ADMINISTRATIVE LAW JUDGE
DATE: MAY 9, 1980
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REDUCE THE NUMBER OF UNION REPRESENTATIVES ON THE
UNION-MANAGEMENT SAFETY COMMITTEE WITHOUT NOTIFYING LOCAL LODGE 830,
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO,
THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, AND AFFORDING SUCH
REPRESENTATIVE THE OPPORTUNITY TO NEGOTIATE TO THE EXTENT CONSONANT WITH
LAW AND REGULATIONS ON THE DECISION TO EFFECTUATE SUCH A CHANGE.
WE WILL NOT CHANGE THE ESTABLISHED SELECTION PROCESS BY SEEKING
CANDIDATES FOR VACANCIES WITHOUT FIRST EXHAUSTING THE GROUP OF ELIGIBLE
CANDIDATES FROM NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY, AND
OTHERWISE COMPLYING WITH THE PROMOTION PRACTICES PREVIOUSLY ENUNCIATED
IN SECTION 2(A), 3(A), 3(D), 4(B), 5(C) (EXCLUDING THE TRAINEE
PROVISION), AND 6(A) OF ARTICLE 15 OF THE AGREEMENT DATED SEPTEMBER 20,
1974, WITHOUT FIRST NOTIFYING THE ABOVE EXCLUSIVE REPRESENTATIVE AND
AFFORDING IT THE OPPORTUNITY TO NEGOTIATE, TO THE EXTENT CONSONANT WITH
LAW AND REGULATIONS, ON THE DECISION TO EFFECTUATE SUCH CHANGES.
WE WILL NOT UNILATERALLY CHANGE THE PROCEDURES REGARDING THE
ESTABLISHMENT OF TRAINEE POSITIONS AND THE SELECTION OF CANDIDATES AS
PREVIOUSLY ENUNCIATED IN SECTION 5(C) AND THE LAST SENTENCE OF SECTION
6(B), RESPECTIVELY, OF ARTICLE 15 OF THE ABOVE-MENTIONED AGREEMENT,
WITHOUT NOTIFYING THE ABOVE EXCLUSIVE REPRESENTATIVE, AND AFFORDING IT
THE OPPORTUNITY TO NEGOTIATE, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON THE IMPACT AND IMPLEMENTATION OF THE DECISION TO
EFFECTUATE SUCH 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
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL RESCIND THE DECISIONS (A) TO REDUCE THE NUMBER OF UNION
REPRESENTATIVES ON THE UNION-MANAGEMENT SAFETY COMMITTEE, AND (B) TO
CHANGE THE ESTABLISHED SELECTION PRACTICES SET FORTH IN SECTION 2(A),
3(A), 3(D), 4(B), 5(C) (EXCLUDING THE TRAINEE PROVISION), AND 6(A) OF
ARTICLE 15, OF THE NEGOTIATED AGREEMENT DATED SEPTEMBER 20, 1974, AND WE
WILL RESTORE ALL CONDITIONS OF EMPLOYMENT REGARDING THESE MATTERS WHICH
WERE IN EFFECT PRIOR TO SUCH CHANGES.
WE WILL NOTIFY LOCAL LODGE 830, INTERNATIONAL ASSOCIATION OF
MACHINISTS, AEROSPACE WORKERS, AFL-CIO, OF ANY INTENDED DECISION TO
IMPLEMENT THE PROCEDURAL CHANGES TO THE TERMS SET FORTH IN SECTION 5(C)
REGARDING TRAINEE POSITIONS, AND THE LAST SENTENCE OF SECTION 6(B) OF
ARTICLE 15 OF THE ABOVE-MENTIONED AGREEMENT, AND UPON REQUEST NEGOTIATE
TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS ON THE IMPACT AND
IMPLEMENTATION OF SUCH DECISION.
WE WILL NOTIFY SAID EXCLUSIVE REPRESENTATIVE OF ANY INTENDED CHANGES
IN THE PROMOTION PRACTICES AND PROCEDURES SET FORTH IN SECTION 2(A),
3(A), 3(D), 4(B), 5(C) (EXCLUDING THE TRAINEE PROVISION), AND 6(A) OF
ARTICLE 15 OF THE ABOVE NEGOTIATED AGREEMENT, AND UPON REQUEST,
NEGOTIATE IN GOOD FAITH TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON THE DECISION TO EFFECTUATE SUCH CHANGES.
WE WILL POST ALL JOB VACANCIES WITHIN THE BARGAINING UNIT WHICH
OCCURRED AT NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY, AFTER FEBRUARY
8, 1979, IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE
ABOVE-MENTIONED NEGOTIATED AGREEMENT, AND EVALUATE ALL CANDIDATES FOR
SUCH VACANCIES UNDER THE TERMS AND CONDITIONS ESTABLISHED BY SAID
NEGOTIATED AGREEMENT, AND THE PUBLISHED AGENCY POLICIES AND REGULATIONS
IN EXISTENCE PRIOR TO THE CHANGES MADE IN THE SELECTION PROCESS ON OR
ABOUT FEBRUARY 8, 1979.
WE WILL VACATE POSITIONS WHICH WERE IMPROPERLY FILLED AFTER FEBRUARY
8, 1979, PROMOTE ANY EMPLOYEE IMPROPERLY DENIED PROMOTION AND REIMBURSE
SUCH EMPLOYEE ANY LOSS OF MONIES OCCASIONED BY THE IMPROPER FAILURE TO
PROMOTE.
(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 EMPLOYEE HAS ANY QUESTIONS CONCERNING THIS NOTICE, OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION IV, WHOSE ADDRESS
IS: SUITE 501, NORTH WING 1776 PEACHTREE STREET, N.W., ATLANTA, GEORGIA
30309.
--------------- FOOTNOTES$ ---------------
/1/ DEPARTMENT OF THE AIR FORCE, 35TH COMBAT SUPPORT GROUP (TAC),
GEORGE AIR FORCE BASE, CALIFORNIA, 4 FLRA NO. 5 (1980).
/2/ SEE GENERALLY, UNITED STATES AIR FORCE, AIR FORCE LOGISTICS
COMMAND, AEROSPACE GUIDANCE AND METROLOGY CENTER, NEWARK, OHIO, 4 FLRA
NO. 70 (1980) AT 2 OF THE DECISION.
/3/ I NEED NOT DECIDE WHETHER THE AUTHORITY WOULD HAVE HELD EITHER OF
THE INSTANT CASES TO BE INAPPROPRIATE VEHICLES FOR A NEGOTIABILITY
APPEAL. SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1617, AND DEPARTMENT OF THE AIR FORCE, HEADQUARTERS, AIR
FORCE LOGISTICS COMMAND, KELLY AIR FORCE BASE, TEXAS, CASE , NO.
0-NG-39, 2 FLRA NO. 55 (1980).
/4/ AT ALL TIMES RELEVANT HERETO, THE UNION HAS BEEN RECOGNIZED AS
THE EXCLUSIVE REPRESENTATIVE OF A BARGAINING UNIT COMPOSED OF CERTAIN
EMPLOYEES AT THE ACTIVITY AS SET FORTH IN ARTICLE I, SEC. 1 OF THIS
NEGOTIATED AGREEMENT.
/5/ ALTHOUGH THE UNION PRESIDENT WAS ON THE DISTRIBUTION LIST, HE WAS
NOT SENT A COPY OF THE MEMORANDUM.
/6/ THE ONLY "PERMISSIVE" SUBJECTS OF BARGAINING SERIOUSLY ARGUED BY
RESPONDENT ARE THE NUMBER OF EMPLOYEES ASSIGNED TO A SUBDIVISION OR WORK
PROJECT; I HAVE ALREADY CONCLUDED THAT THESE EXCEPTIONS DO NOT APPLY IN
THE INSTANT CASE. RESPONDENT ALSO ARGUED THAT IT HAD MERELY REDUCED THE
NUMBER OF MANAGEMENT REPRESENTATIVES; HOWEVER, THIS ALLEGATION IS
DIRECTLY CONTRADICTED BY THE COMMANDING OFFICER'S JANUARY 3, 1979,
LETTER WHICH CLEARLY INTENDED TO REDUCE THE NUMBER OF UNION
REPRESENTATIVES BY AN EQUAL NUMBER. THUS, THE INSTANT CASE IS
DISTINGUISHABLE FROM NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
1451 AND NAVAL TRAINING CENTER, ORLANDO, FLORIDA, CASE NO. 0-NG-75, 3
FLRA NO. 14, (APRIL 28, 1980) WHERE THE UNION'S PROPOSAL REQUIRING
MANAGEMENT TO DESIGNATE A PARTICULAR NUMBER OF MANAGEMENT
REPRESENTATIVES WAS HELD TO BE NONNEGOTIABLE. IN THE INSTANT CASE
RESPONDENT'S ACTION DIRECTLY AFFECTED UNIT EMPLOYEES.
/7/ THESE HAD PREVIOUSLY BEEN SET FORTH BY THE PARTIES IN SECTIONS
2(A), 3(A), 3(D), 4(B), 5(C), 6(A), AND 6(B) OF ARTICLE 15 OF THE
EXPIRED NEGOTIATED AGREEMENT.
/8/ THE AFFIDAVIT STATED, IN PART, THAT THE STATUTE HAD NEGATED
CERTAIN SECTIONS OF ARTICLE 15 OF THE OLD NEGOTIATED AGREEMENT AND THAT
"THESE SECTIONS ARE DARKENED ON THE ATTACHED COPY OF ARTICLE 15."
HOWEVER, SOME OF THE DARKENED SECTIONS HAD QUESTION MARKS IN THE MARGIN.
/9/ SECTIONS 2(B), 3(B), 6(C), AND PORTIONS OF SECTIONS 1(B),.3(E),
4(A), 8(E), AND 9(A) OF ARTICLE 15 WERE CONSIDERED "QUESTIONABLE" BY
RESPONDENT.
/10/ SECTIONS 7106(B)(2) AND (3) PROVIDE:
MANAGEMENT RIGHTS
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY OR ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
. . . .
(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.