4 A/SLMR 339; P. 58; CASE NOS. 72-3983 AND 72-3985; JANUARY 8,
1974.
U.S. DEPARTMENT OF AGRICULTURE,
UNITED STATES FOREST SERVICE,
ANGELES NATIONAL FOREST,
PASADENA, CALIFORNIA
A/SLMR NO. 339
THIS CASE INVOLVED TWO PETITIONS FOR CLARIFICATION OF UNIT (CU),
FILED BY NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1650 (NFFE).
IN THIS REGARD, THE NFFE SEEKS TO CLARIFY AN EXISTING EXCLUSIVELY
RECOGNIZED UNIT BY: (1) ADDING TO THE UNIT "PERMANENT" EMPLOYEES
APPOINTED FOR LESS THAN 13 PAY PERIODS PER YEAR AND "TEMPORARY"
EMPLOYEES HIRED ANNUALLY FOR PERIODS NOT TO EXCEED 180 DAYS, AND (2)
HAVING CERTAIN EMPLOYEES DECLARED NOT TO BE SUPERVISORS AND, THUS, NOT
EXCLUDED FROM THE UNIT.
THE "TEMPORARY" EMPLOYEES HIRED FOR PERIODS NOT TO EXCEED 180 DAYS,
AND "PERMANENT" EMPLOYEES APPOINTED FOR LESS THAN 13 PAY PERIODS PER
YEAR, SUPPLEMENT THE REGULAR PERMANENT COMPLEMENT OF EMPLOYEES AT THE
ACTIVITY BECAUSE OF THE SEASONAL NATURE OF FIRE HAZARDS WHICH IS A MAJOR
CONCERN OF THE ACTIVITY. THE ASSISTANT SECRETARY DETERMINED THAT IN
MANY RESPECTS EMPLOYEES IN THESE CATEGORIES WERE SIMILAR TO THE UNIT
EMPLOYEES. HOWEVER, IT WAS NOTED THAT THESE TWO CATEGORIES OF EMPLOYEES
SPECIFICALLY WERE EXCLUDED FROM THE UNIT AS ORIGINALLY ESTABLISHED. THE
ASSISTANT SECRETARY STATED THAT A CU PETITION IS INAPPROPRIATE FOR THE
PURPOSE OF ADDING TO THE UNIT CATEGORIES OF EMPLOYEES PREVIOUSLY
EXCLUDED SPECIFICALLY BY THE UNIT DEFINITION, EVEN WHERE THE CATEGORIES
INVOLVED MAY ARGUABLY HAVE BEEN INCLUDED APPROPRIATELY WITHIN THE UNIT
WHEN SUCH UNIT WAS ESTABLISHED. ACCORDINGLY, HE ORDERED THAT THE CU
PETITION SEEKING TO CLARIFY THE UNIT TO INCLUDE THESE TWO CATEGORIES OF
EMPLOYEES BE DISMISSED.
THE SECOND CU PETITION INVOLVED EMPLOYEES CLASSIFIED AS SUPERVISORY
FORESTRY TECHNICIAN, A GROUP NOT SPECIFICALLY REFERRED TO IN THE
ORIGINAL UNIT DESCRIPTION. DURING THE FIRE SEASON, THESE EMPLOYEES
DIRECT THE ACTIVITIES OF SEASONAL EMPLOYEES. THE NFFE CONTENDS THAT
THESE EMPLOYEES ARE NOT SUPERVISORS; THAT, FOR THE MOST PART, THEY
SUPERVISE NO EMPLOYEES EXCEPT DURING THE FIRE SEASON WHEN THEY ACT AS
WORK LEADERS; AND THAT, DURING THE REMAINDER OF THE YEAR, SOME OF THEM
ACT AS A WORK LEADER FOR ONLY ONE EMPLOYEE. THE ASSISTANT SECRETARY
CONCLUDED THAT, DURING THE FIRE FIGHTING SEASON, SUPERVISORY FORESTRY
TECHNICIANS EXERCISE DUTIES INDICATING THAT THEY HAVE SUPERVISORY STATUS
WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER. HOWEVER, EXCEPT FOR
CERTAIN ACTIVITY RELATED TO FIRE SEASON WORK AND CERTAIN FOLLOW-UP
ACTIVITY AFTER THE CONCLUSION OF THE FIRE SEASON, MAINTENANCE WORK IS
THE PRIMARY DUTY OF THE SUPERVISORY FORESTRY TECHNICIANS IN THE
OFF-SEASON AND THE EVIDENCE DID NOT ESTABLISH THAT THE SUPERVISORY
FORESTRY TECHNICIANS PERFORM SUPERVISORY FUNCTIONS IN THE OFF-SEASON
PERIOD IN CONNECTION WITH MAINTENANCE WORK. ACCORDINGLY, THE ASSISTANT
SECRETARY FOUND THAT THE SUPERVISORY FORESTRY TECHNICIANS SHOULD BE
EXCLUDED FROM THE UNIT DURING THE PERIOD WHEN THEY ARE EXERCISING
SUPERVISORY FUNCTIONS, AND SHOULD BE INCLUDED IN THE UNIT DURING THOSE
PERIODS WHEN THEY EXERCISE NO SUPERVISORY FUNCTIONS, AND HE ORDERED THAT
THE UNIT BE CLARIFIED TO REFLECT THIS SITUATION.
U. S. DEPARTMENT OF AGRICULTURE,
UNITED STATES FOREST SERVICE, ANGELES
NATIONAL FOREST, PASADENA, CALIFORNIA
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1650
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER JOHN
J. SHEA. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE
FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THESE CASES, THE ASSISTANT SECRETARY FINDS:
THE PETITIONER, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1650,
HEREIN CALLED NFFE, SEEKS CLARIFICATION OF AN EXISTING EXCLUSIVELY
RECOGNIZED UNIT. BY ITS AMENDED PETITION IN CASE NO. 72-3983, THE NFFE
SEEKS TO ADD TO ITS EXISTING UNIT "TEMPORARY" EMPLOYEES HIRED ANNUALLY
FOR PERIODS NOT TO EXCEED 180 DAYS AND "PERMANENT" EMPLOYEES APPOINTED
FOR LESS THAN 13 PAY PERIODS PER YEAR. THE CURRENT EXCLUSIVELY
RECOGNIZED UNIT EXCLUDES BOTH OF THESE CATEGORIES OF EMPLOYEES. /1/
IN CASE NO. 72-3985, THE NFFE SEEKS TO HAVE CERTAIN EMPLOYEES OF THE
ACTIVITY DECLARED NOT TO BE SUPERVISORS AND, THUS, NOT EXCLUDED FROM THE
UNIT.
"TEMPORARY" EMPLOYEES HIRED ANNUALLY FOR PERIODS NOT TO EXCEED 180
DAYS AND "PERMANENT" EMPLOYEES APPOINTED FOR LESS THAN 13 PAY PERIODS
PER YEAR.
THE ACTIVITY IS A NATIONAL FOREST WHICH COVERS SOME 691,000 ACRES.
IT EMPLOYS APPROXIMATELY 300 TO 350 REGULAR PERMANENT EMPLOYEES.
BECAUSE OF THE SEASONAL NATURE OF FIRE HAZARDS, APPROXIMATELY 250
"TEMPORARY" EMPLOYEES ARE HIRED ANNUALLY FOR A PERIOD NOT TO EXCEED 180
DAYS. /2/ IN ADDITION, THERE ARE EMPLOYED APPROXIMATELY 20 "PERMANENT"
EMPLOYEES WHOSE APPOINTMENTS ARE FOR LESS THAN 13 (2 WEEK) PAY PERIODS
PER YEAR. THE FIRE SEASON GENERALLY RUNS FROM MID-MAY TO MID-NOVEMBER.
THE "TEMPORARY" EMPLOYEES AND THE "PERMANENT" EMPLOYEES WHO WORK LESS
THAN 13 PAY PERIODS PER YEAR HAVE MANY SIMILAR DUTIES AND SIMILAR
CONDITIONS OF EMPLOYMENT BOTH AS TO EACH OTHER AND TO OTHER EMPLOYEES
WHO ARE INCLUDED WITHIN THE CURRENTLY RECOGNIZED UNIT. THUS, THEIR
DUTIES RELATE PRIMARILY TO FIRE CONTROL, AND THEY HAVE THE SAME
SUPERVISION AND RECEIVE THE SAME PAY AS REGULAR EMPLOYEES OF SIMILAR
EXPERIENCE. ALTHOUGH THE "TEMPORARY" EMPLOYEES ACCRUE LEAVE AND SICK
PAY, THEY ARE NOT ENTITLED TO PARTICIPATE IN GOVERNMENT LIFE INSURANCE,
OR HEALTH OR RETIREMENT PROGRAMS. NOR DO THE "PERMANENT" EMPLOYEES WHO
WORK LESS THAN 13 PAY PERIODS PARTICIPATE IN GOVERNMENT LIFE OR HEALTH
INSURANCE PROGRAMS.
THE "TEMPORARY" EMPLOYEES ARE HIRED PURSUANT TO AUTHORITY GRANTED BY
THE U.S. CIVIL SERVICE COMMISSION. THEY ARE HIRED FROM LISTS ACCRUED
AND MAINTAINED BY INDIVIDUAL RANGER DISTRICT OFFICES, AND EXCEPT FOR
SOME 20 LIMITED DURATION APPOINTMENTS INVOLVING MAINTENANCE WORK RATHER
THAN FIRE CONTROL, NONE OF THE "TEMPORARY" EMPLOYEES APPLY FOR POSITIONS
THROUGH THE U.S. CIVIL SERVICE COMMISSION, AS WOULD THE REGULAR
EMPLOYEES AND THE "PERMANENT" EMPLOYEES WHO WORK LESS THAN 13 PAY
PERIODS PER YEAR. THE RECORD INDICATES THAT THE "TEMPORARY" EMPLOYEES,
AS WELL AS THE DISPUTED "PERMANENT" EMPLOYEES, HAVE A REASONABLE
EXPECTANCY OF FUTURE EMPLOYMENT. THUS, MANY OF THE "TEMPORARY"
EMPLOYEES ARE REHIRED ANNUALLY, AND THEY ARE GIVEN CREDIT FOR PRIOR
EXPERIENCE SO THAT THEY MAY BE REHIRED AT PROGRESSIVELY HIGHER GRADES.
/3/ AT THE HEARING, THE ACTIVITY STATED THAT IT DID NOT OBJECT TO THE
INCLUSION OF THESE TWO CATEGORIES OF EMPLOYEES IN THE ESTABLISHED UNIT.
IT HAS BEEN INDICATED IN PREVIOUS DECISIONS THAT A PETITION FOR
CLARIFICATION OF UNIT (CU) IS A VEHICLE TO BE USED ONLY IN CERTAIN
SPECIFIC CIRCUMSTANCES. /4/ THUS, A CU PETITION MAY BE USED TO RESOLVE
UNCERTAINTIES RELATING TO UNIT INCLUSIONS OR EXCLUSIONS OF CATEGORIES OF
EMPLOYEES, WHEN THE CERTIFIED OR EXCLUSIVELY RECOGNIZED UNIT DESCRIPTION
DOES NOT ON ITS FACE RESOLVE SUCH QUESTIONS. /5/ IN THIS REGARD, A CU
PETITION COULD BE USED TO RESOLVE THE SUPERVISORY STATUS OF DISPUTED
EMPLOYEES OR TO DETERMINE WHETHER CERTAIN EMPLOYEES FALL WITHIN THE
CLASSIFICATION DESCRIBED IN THE CERTIFICATION OR RECOGNITION. HOWEVER,
SUCH A PETITION IS INAPPROPRIATE FOR THE PURPOSE OF ADDING TO THE UNIT
CATEGORIES OF EMPLOYEES WHICH WERE PREVIOUSLY EXCLUDED SPECIFICALLY BY
THE UNIT DEFINITION, EVEN WHERE THE CATEGORIES INVOLVED MAY ARGUABLY
HAVE BEEN INCLUDED APPROPRIATELY WITHIN THE UNIT WHEN SUCH UNIT WAS
ESTABLISHED. AS IT IS CLEAR THAT THE TWO CATEGORIES OF EMPLOYEES SOUGHT
TO BE INCLUDED BY THE CU PETITION IN CASE NO. 72-3983 WERE EXCLUDED
EXPRESSLY IN THE CERTIFICATION OF REPRESENTATIVE, /6/ I FIND THAT SUCH
PETITION WAS INAPPROPRIATE IN THE CIRCUMSTANCES OF THIS CASE AND,
THEREFORE, I SHALL ORDER THAT IT BE DISMISSED.
SUPERVISORY FORESTRY TECHNICIANS.
IN CASE NO. 72-3985, THE NFFE SEEKS TO CLARIFY THE STATUS OF CERTAIN
EMPLOYEES CLASSIFIED AS SUPERVISORY FORESTRY TECHNICIANS /7/ WHOM THE
ACTIVITY WOULD EXCLUDE FROM THE UNIT AS SUPERVISORS. THE NFFE CONTENDS
THAT THESE EMPLOYEES ARE NOT SUPERVISORS; THAT, FOR THE MOST PART, THEY
SUPERVISE NO EMPLOYEES EXCEPT DURING THE FIRE SEASON WHEN THEY ACT AS
WORK LEADERS FOR APPROXIMATELY FOUR OR FIVE SEASONAL EMPLOYEES; AND
THAT, DURING THE REMAINDER OF THE YEAR, SOME OF THESE SUPERVISORY
FORESTRY TECHNICIANS ACT AS A WORK LEADER OF ONLY ONE EMPLOYEE.
THE ACTIVITY IS DIVIDED INTO FIVE DISTRICTS, EACH HEADED BY A
DISTRICT RANGER. BETWEEN THE DISTRICT RANGER AND THE SUPERVISORY
FORESTRY TECHNICIANS THERE ARE SEVERAL LEVELS OF SUPERVISION. THUS,
EACH DISTRICT IS FURTHER DIVIDED INTO FROM TWO TO SIX STATIONS, WITH THE
SUPERVISORY FORESTRY TECHNICIANS BEING THE SENIOR EMPLOYEES AT NEARLY
ALL OF THESE STATIONS. IN THE ANGELES NATIONAL FOREST THERE ARE 26
STATIONS IN ALL, MOST OF WHICH ARE GEOGRAPHICALLY ISOLATED FROM THE
OFFICES WHICH HOUSE THE SUPERVISORY FORESTRY TECHNICIANS' SUPERVISORS.
DURING THE MAY TO NOVEMBER SEASON, FIRE CONTROL IS THE PRINCIPAL
CONCERN AT THE STATIONS AND, IN THIS PERIOD, MOST OF THE SUPERVISORY
FORESTRY TECHNICIANS ARE IN CONTACT WITH THEIR OWN SUPERVISORS
IRREGULARLY, OFTEN ONLY BY TELEPHONE. DURING THE FIRE SEASON, EACH
SUPERVISORY FORESTRY TECHNICIAN IS RESPONSIBLE AT HIS STATION FOR A CREW
OF EMPLOYEES OF VARYING SIZE, MOST OF WHOM ARE SEASONAL EMPLOYEES. THE
RECORD REVEALS THAT, WITH RESPECT TO THE SEASONAL EMPLOYEES, THE
SUPERVISORY FORESTRY TECHNICIANS PARTICIPATE IN INTERVIEWING, HIRING,
AND DISCHARGE OF SUCH EMPLOYEES, HANDLE THEIR GRIEVANCES, EVALUATE THEIR
PERFORMANCES, MAKE RECOMMENDATIONS FOR THEIR PROMOTIONS, USE INDEPENDENT
JUDGMENT IN MAKING WORK ASSIGNMENTS, APPROVE LIMITED AMOUNTS OF LEAVE,
AND GENERALLY ARE RESPONSIBLE FOR THEIR SAFETY AND TRAINING. FURTHER,
SOME SUPERVISORY FORESTRY TECHNICIANS HAVE RECOMMENDED CASH AWARDS FOR
SUCH EMPLOYEES, WHICH RECOMMENDATIONS HAVE BEEN FOLLOWED.
THE RECORD INDICATES THAT DURING THE SEASON, APPROXIMATELY 20 PERCENT
OF THE SUPERVISORY FORESTRY TECHNICIANS' TIME IS SPENT PERFORMING
ADMINSTRATIVE TASKS, WITH THE REST OF THEIR TIME SPENT WORKING WITH THE
CREW ASSIGNED TO THEIR RESPECTIVE STATIONS. PRIOR TO THE SEASON, AND IN
COOPERATION WITH THEIR OWN SUPERVISORS, SUPERVISORY FORESTRY TECHNICIANS
PLAN THE WORK TO BE DONE FOR THE SEASON, SET PRIORITIES, AND PARTICIPATE
IN INTERVIEWING AND RATING APPLICANTS FOR SEASONAL JOBS. THE RECORD
INDICATES, HOWEVER, THAT EXCEPT FOR THIS PREPARATION ACTIVITY RELATED TO
FIRE SEASON WORK AND CERTAIN FOLLOW-UP ACTIVITY AFTER THE CONCLUSION OF
THE FIRE SEASON, MAINTENANCE WORK IS THE PRIMARY DUTY OF THE SUPERVISORY
FORESTRY TECHNICIANS IN THE OFF-SEASON. THE EVIDENCE DOES NOT ESTABLISH
THAT THE SUPERVISORY FORESTRY TECHNICIANS PERFORM SUPERVISORY FUNCTIONS
IN THE OFF-SEASON IN CONNECTION WITH THEIR MAINTENANCE WORK.
BASED ON THE FOREGOING CIRCUMSTANCES, I FIND THAT THE SUPERVISORY
FORESTRY TECHNICIANS PERFORM SUPERVISORY FUNCTIONS WITHIN THE MEANING OF
SECTION 2(C) OF THE ORDER DURING THE FIRE FIGHTING SEASON. HOWEVER, I
FIND ALSO THAT THE RECORD DOES NOT ESTABLISH THAT THE SUPERVISORY
FORESTRY TECHNICIANS, AS A GROUP, PERFORM IN A SUPERVISORY CAPACITY WITH
RESPECT TO OTHER EMPLOYEES OF THE ACTIVITY DURING THE REMAINDER OF THE
YEAR WHEN THEIR PRIMARY FUNCTION IS THE PERFORMANCE OF MAINTENANCE WORK.
EMPLOYEES WITH DIFFERENT RESPONSIBILITIES IN DIFFERENT PERIODS OF THE
YEAR, SUCH AS THESE, HAVE, IN THE PAST, BEEN FOUND BY THE ASSISTANT
SECRETARY TO BE "SEASONAL SUPERVISORS." AND ALTHOUGH SUCH "SEASONAL
SUPERVISORS" MAY PROPERLY BE EXCLUDED FROM THE UNIT DURING THE PERIOD
WHEN THEY ARE EXERCISING SUPERVISORY FUNCTIONS, THEY SHOULD BE INCLUDED
IN THE UNIT DURING THOSE PERIODS WHEN THEY EXERCISE NO SUPERVISORY
FUNCTIONS. /8/ ACCORDINGLY, I SHALL ORDER THAT THE UNIT BE CLARIFIED TO
REFLECT THE FOREGOING SITUATION.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 72-3983 BE, AND IT
HEREBY IS, DISMISSED.
IT IS HEREBY FURTHER ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED BY
THE PETITION IN CASE NO. 72-3985 BE, AND IT HEREBY IS, CLARIFIED TO
INCLUDE IN SAID UNIT EMPLOYEES CLASSIFIED AS SUPERVISORY FORESTRY
TECHNICIANS DURING THAT PORTION OF THE YEAR WHEN THEY EXERCISE NO
SUPERVISORY AUTHORITY, AND TO EXCLUDE THESE EMPLOYEES FROM THE UNIT
DURING THAT PORTION OF THE YEAR WHEN THEY EXERCISE SUPERVISORY
AUTHORITY.
DATED, WASHINGTON, D.C.
JANUARY 8, 1974
/1/ THE CERTIFICATION OF REPRESENTATIVE, DATED JUNE 29, 1971,
DESCRIBES THE UNIT AS:
ALL NONPROFESSIONAL EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE, U.S.
FOREST SERVICE,
ANGELES NATIONAL FOREST, PASADENA, CALIFORNIA, INCLUDING TEMPORARY
EMPLOYEES WITH AN
APPOINTMENT OF ONE YEAR OR MORE, EXCLUDING MANAGERS, SUPERVISORS,
GUARDS, PERSONS PERFORMING
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
PROFESSIONAL EMPLOYEES,
PERMANENT EMPLOYEES APPOINTED FOR LESS THAN THIRTEEN FULL-TIME PAY
PERIODS PER YEAR, AND
TEMPORARY EMPLOYEES WITH AN APPOINTMENT OF LESS THAN ONE YEAR.
AT THE HEARING, IT WAS DETERMINED THAT "TEMPORARY EMPLOYEES WITH AN
APPOINTMENT OF LESS THAN ONE YEAR" ARE ACTUALLY APPOINTED FOR LESS THAN
180 DAYS WITHIN THE YEAR. THESE TWO DESCRIPTIONS REFER TO THE SAME
EMPLOYEES AND ARE USED INTERCHANGEABLY.
/2/ THEIR TOURS OF DUTY MAY BE EXTENDED TO UP TO 220 DAYS IN
EMERGENCIES.
/3/ FOR EXAMPLE, IN 1971, 57 PERCENT OF THE "TEMPORARY" EMPLOYEES
WERE REHIRES. IN 1972, 42 PERCENT OF THE "TEMPORARY" EMPLOYEES WERE
REHIRES AND FOR THE FIRST 7 MONTHS OF 1973, 71 PERCENT WERE REHIRES.
/4/ SEE HEADQUARTERS, U.S. ARMY AVIATION SYSTEMS COMMAND, ST. LOUIS,
MISSOURI, A/SLMR NO. 160.
/5/ THE NFFE CITED U.S. DEPARTMENT OF AGRICULTURE, REGIONAL FORESTRY
OFFICE, FOREST SERVICES, REGION 3, SANTA FE NATIONAL FOREST, SANTA FE,
NEW MEXICO, A/SLMR NO. 88, TO SUPPORT ITS POSITION THAT THE "TEMPORARY"
EMPLOYEES HEREIN SHOULD BE INCLUDED IN THE EXCLUSIVELY RECOGNIZED UNIT.
AS THAT CASE INVOLVED A DETERMINATION OF AN APPROPRIATE UNIT PURSUANT TO
AN RO PETITION AND NOT THE CLARIFICATION OF AN EXISTING RECOGNIZED
EXCLUSIVE UNIT, ITS HOLDING WITH RESPECT TO "TEMPORARY" EMPLOYEES WAS
CONSIDERED INAPPOSITE IN THE INSTANT PROCEEDING.
/6/ COMPARE, CALIFORNIA AIR NATIONAL GUARD HEADQUARTERS, 163RD
FIGHTER GROUP, ONTARIO INTERNATIONAL AIRPORT, ONTARIO, CALIFORNIA,
A/SLMR NO. 252.
/7/ UNLIKE THE CATEGORIES DESCRIBED ABOVE, THIS GROUP OF EMPLOYEES IS
NOT SPECIFICALLY REFERRED TO IN THE ORIGINAL UNIT DESCRIPTION. THUS,
THE CU PETITION IN CASE NO. 7203985 WAS CONSIDERED TO HAVE BEEN
APPROPRIATELY FILED.
/8/ SEE DEPARTMENT OF INTERIOR, BUREAU OF LAND MANAGEMENT, DISTRICT
OFFICE, LAKEVIEW, OREGON, A/SLMR NO. 212.
4 A/SLMR 338; P. 54; CASE NOS. 71-2611, 71-2618, 71-2619; JANUARY
8, 1974.
NORTHWEST AREA EXCHANGE (AAFES)
A/SLMR NO. 338
THIS CASE AROSE AS A RESULT OF REPRESENTATION PETITIONS FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1504 (AFGE),
SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, LOCAL 49 (SEIU 49), AND
SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, LOCAL 92 (SEIU 92).
THE AFGE REQUESTED A UNIT OF ALL REGULAR FULL-TIME AND REGULAR
PART-TIME EMPLOYEES, INCLUDING MILITARY PERSONNEL IN EITHER OF THE
FOREGOING CATEGORIES, EMPLOYED BY THE NORTHWEST AREA EXCHANGE, ARMY-AIR
FORCE EXCHANGE SERVICE (AAFES). THE SEIU 92 REQUESTED A UNIT OF ALL
EMPLOYEES AT THE VANCOUVER BARRACKS AAFES EXCHANGE AND SEIU 42 SOUGHT A
UNIT OF ALL EMPLOYEES OF THE KINGSLEY FIELD AAFES EXCHANGE, BOTH OF
WHICH ARE SATELLITE EXCHANGES OF THE NORTHWEST AREA EXCHANGE.
THE ASSISTANT SECRETARY FOUND THAT THE UNIT PETITIONED FOR BY THE
AFGE WAS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION, NOTING
THE PARTIES' AGREEMENT AS TO THE SCOPE OF THE UNIT SOUGHT AS WELL AS THE
CENTRALIZED NATURE OF PERSONNEL AND LABOR RELATIONS POLICIES WITHIN THE
NORTHWEST AREA EXCHANGE AND THE FACT THAT EMPLOYEES AT THE VARIOUS
LOCATIONS THROUGHOUT THE NORTHWEST AREA EXCHANGE SHARE THE SAME GENERAL
WORKING CONDITIONS.
THE ASSISTANT SECRETARY FURTHER FOUND THAT THE SEPARATE UNITS OF
EMPLOYEES PETITIONED FOR RESPECTIVELY BY SEIU LOCAL 49 AND SEIU LOCAL 92
CONSTITUTED APPROPRIATE UNITS. IN THIS CONNECTION, PARTICULAR NOTE WAS
TAKEN OF THE FACTS THAT THE EMPLOYEES IN THE CLAIMED SATELLITE UNITS
HAVE THE SAME IMMEDIATE TERMS AND CONDITIONS OF EMPLOYMENT, THAT THEY
ARE SEPARATED GEOGRAPHICALLY FROM OTHER EMPLOYEES OF THE NORTHWEST AREA
EXCHANGE AND THAT THEY DO NOT INTERCHANGE WITH EMPLOYEES OF THE OTHER
COMPONENTS OF THE NORTHWEST AREA EXCHANGE. IT WAS FURTHER NOTED THAT
THE AUTHORITY TO HIRE AND DISCIPLINE EXISTS AT THE LOCAL LEVEL, WITH
FINAL APPROVAL FOR SUCH ACTIONS RESTING IN THE GENERAL MANAGER.
THE ASSISTANT SECRETARY FURTHER FOUND THAT OFF-DUTY MILITARY
PERSONNEL WHO WORKED THE REQUISITE NUMBER OF HOURS SO AS TO BE INCLUDED
IN THE CATEGORIES REGULAR FULL-TIME AND REGULAR PART-TIME SHOULD BE
INCLUDED WITHIN THE UNITS FOUND APPROPRIATE AND THAT BECAUSE NEITHER
TEMPORARY PART-TIME OR ON-CALL EMPLOYEES HAVE A REASONABLE EXPECTANCY OF
CONTINUED EMPLOYMENT, SUCH CATEGORIES SHOULD BE EXCLUDED FROM THESE
UNITS.
UNDER THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY ORDERED ELECTIONS
IN THE UNITS FOUND APPROPRIATE.
NORTHWEST AREA EXCHANGE, /1/
(AAFES)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1504 /2/
NORTHWEST AREA EXCHANGE,
(AAFES)
AND
SERVICE EMPLOYEES INTERNATIONAL UNION,
AFL-CIO, LOCAL 92 /3/
NORTHWEST AREA EXCHANGE,
(AAFES)
AND
SERVICE EMPLOYEES INTERNATIONAL UNION,
AFL-CIO, LOCAL 49 /4/
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER
DANIEL KRAUS. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE
FREE FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THE SUBJECT CASES, INCLUDING THE BRIEF
FILED BY THE SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, LOCALS 49
AND 92, HEREINAFTER CALLED, RESPECTIVELY, SEIU LOCAL 49 AND SEIU LOCAL
92, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. IN CASE NO. 72-2611, THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1504, HEREINAFTER CALLED AFGE, SEEKS AN
ELECTION IN A UNIT OF ALL REGULAR FULL-TIME AND REGULAR PART-TIME
EMPLOYEES, INCLUDING OFF-DUTY MILITARY PERSONNEL IN EITHER OF THE
FOREGOING CATEGORIES, EMPLOYED BY THE NORTHWEST AREA EXCHANGE, BUT
EXCLUDING TEMPORARY FULL-TIME EMPLOYEES, TEMPORARY PART-TIME EMPLOYEES,
CASUAL AND ON-CALL EMPLOYEES, CONFIDENTIAL EMPLOYEES, EMPLOYEES ENGAGED
IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS
AS DEFINED IN THE ORDER. /5/ IN CASE NO. 71-2618, SEIU LOCAL 92 SEEKS
AN ELECTION IN A UNIT OF ALL EMPLOYEES OF THE VANCOUVER BARRACKS,
ARMY-AIR FORCE EXCHANGE SERVICE (AAFES) EXCHANGE AT VANCOUVER,
WASHINGTON, BUILDING 805, EXCLUDING PROFESSIONAL EMPLOYEES, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, MANAGEMENT OFFICIALS AND SUPERVISORS AND GUARDS AS DEFINED IN
THE ORDER. IN CASE NO. 71-2619, SEIU LOCAL 49 SEEKS AN ELECTION IN A
UNIT OF ALL EMPLOYEES OF THE KINGSLEY FIELD AAFES EXCHANGE, KLAMATH
FALLS, OREGON, BUILDING 114 AND BUILDING 120, EXCLUDING PROFESSIONAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS AND SUPERVISORS AND
GUARDS AS DEFINED IN THE ORDER.
THE NORTHWEST AREA EXCHANGE CONTENDS THAT THE UNIT SOUGHT BY THE AFGE
IS APPROPRIATE. ON THE OTHER HAND, IT CONTENDS THAT THE UNITS SOUGHT BY
SEIU LOCALS 49 AND 92 ARE NOT APPROPRIATE BECAUSE THEY ARE NOT COMPRISED
OF EMPLOYEES WHO SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST,
AND, FURTHER, SUCH FRAGMENTED UNITS WOULD NEITHER PROMOTE EFFECTIVE
DEALINGS NOR EFFICIENCY OF AGENCY OPERATIONS. /6/
THE NORTHWEST AREA EXCHANGE IS AN ADMINISTRATIVE SUBDIVISION OF THE
GOLDEN GATE REGION, WHICH ENCOMPASSES THE ENTIRE WEST COAST. ITS
HEADQUARTERS IS LOCATED AT FORT LEWIS, WASHINGTON. IN ADDITION TO ITS
HEADQUARTERS OPERATION, THE NORTHWEST AREA EXCHANGE OPERATES EIGHT
SATELLITE EXCHANGES LOCATED IN THE STATES OF WASHINGTON AND OREGON. /7/
THERE ARE NUMEROUS SITE EXCHANGES WHICH ARE ANNEXED TO THE EIGHT
SATELLITES. /8/ APPROXIMATELY 750 EMPLOYEES ARE EMPLOYED AT THE VARIOUS
LOCATIONS.
THE MISSION OF THE NORTHWEST AREA EXCHANGE IS TO PROVIDE QUALITY
MERCHANDISE AND SERVICES AT REASONABLE PRICES TO MEMBERS OF THE MILITARY
SERVICE. A GENERAL MANAGER, STATIONED AT THE FORT LEWIS HEADQUARTERS,
IS IN OVERALL CHARGE OF THE FIVE PRIMARY FUNCTIONS PERFORMED BY THE
EXCHANGE: ACCOUNTING, FOOD OPERATIONS, PERSONNEL, RETAIL OPERATIONS AND
SERVICE OPERATIONS. REPORTING TO THE GENERAL MANAGER IS AN OPERATING
MANAGER FOR EACH SUBDIVISION. /9/
AMONG THE EMPLOYEES INCLUDED IN THE CLAIMED UNIT ARE RETAIL SALES
CLERKS, STOCK HANDLERS, CASHIER CHECKERS, GENERAL CLERKS, COOKS, FOOD
SERVICE HELPERS, PUMP ISLAND ATTENDANTS, MOBILE UNIT OPERATORS, AND
COUNTER ATTENDANTS. WITH RESPECT TO THE DUTIES OF THESE EMPLOYEES, THE
EVIDENCE REVEALS THAT RETAIL OPERATION EMPLOYEES PERFORM SALES AND OTHER
RELATED FUNCTIONS; FOOD SERVICE OPERATION EMPLOYEES ARE ENGAGED IN THE
PREPARATION AND SALE OF FOODS AND BEVERAGES; AND PUMP ISLAND ATTENDANTS
DISPENSE GASOLINE AND OIL TO AUTOMOBILES. THE RECORD REVEALS THAT THESE
EMPLOYEES ARE ALL SUBJECT TO THE SAME GENERAL WORKING CONDITIONS AND
OVERALL SUPERVISION, LABOR RELATIONS POLICIES, GRIEVANCE PROCEDURES,
LEAVE POLICIES, DISCIPLINARY POLICIES, PROMOTION POLICIES AND TRAINING.
AVAILABILITY OF FRINGE BENEFITS IS GOVERNED UNIFORMLY BY AN EMPLOYEE'S
CLASSIFICATION CATEGORY (E.G., REGULAR FULL-TIME, REGULAR PART-TIME,
TEMPORARY, OR ON CALL).
THE EVIDENCE FURTHER ESTABLISHES THAT LOCAL MANAGERS, SUCH AS THOSE
LOCATED AT THE VANCOUVER AND KINGSLEY SATELLITES, HAVE THE AUTHORITY TO
HIRE, FIRE, DISCIPLINE AND COUNSEL EMPLOYEES, SUBJECT TO FINAL APPROVAL
BY THE GENERAL MANAGER. IN THIS CONNECTION, THE RECORD SHOWS THAT MOST
HIRING OCCURS AMONG POTENTIAL EMPLOYEES RESIDING IN THE SAME GEOGRAPHIC
AREA IN WHICH A PARTICULAR EXCHANGE IS LOCATED. FURTHER, THERE IS
LITTLE OR NO EMPLOYEE INTERCHANGE BETWEEN THE HEADQUARTERS OPERATION AND
THE SATELLITES AND SITES; THERE IS NO DAY-TO-DAY CONTACT;
REDUCTION-IN-FORCE ACTIONS ARE ON A LOCAL RATHER THAN AN AREA-WIDE
BASIS; AND JOB POSTING IS ACCOMPLISHED ON A LOCAL BASIS. MOREOVER, AS
NOTED ABOVE, THE RECORD REVEALS THAT THERE IS A SUBSTANTIAL GEOGRAPHIC
DISTANCE BETWEEN HEADQUARTERS AND CERTAIN OF THE SATELLITES AND SITES,
INCLUDING THE VANCOUVER AND KINGSLEY EXCHANGES. SPECIFICALLY, IN THIS
REGARD, THE VANCOUVER EXCHANGE IS LOCATED SOME 175 MILES FROM
HEADQUARTERS AND THE KINGSLEY EXCHANGE IS IN EXCESS OF 400 MILES FROM
HEADQUARTERS AT FORT LEWIS.
UNDER ALL OF THE CIRCUMSTANCES, AND NOTING THE ACTIVITY'S AGREEMENT
THAT THE UNIT SOUGHT BY THE AFGE IS APPROPRIATE, AS WELL AS THE
CENTRALIZED NATURE OF PERSONNEL AND LABOR RELATIONS POLICIES WITHIN THE
NORTHWEST AREA EXCHANGE AND THE FACT THAT EMPLOYEES AT THE VARIOUS
LOCATIONS THROUGHOUT THE AREA EXCHANGE SHARE THE SAME GENERAL WORKING
CONDITIONS, I FIND THAT THE EMPLOYEES IN THE UNIT SOUGHT BY THE AFGE
SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST, AND THAT SUCH A
UNIT WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS. ACCORDINGLY, I FIND THAT THE UNIT SOUGHT HEREIN BY THE AFGE
IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER
AND I SHALL DIRECT AN ELECTION IN SUCH UNIT. /10/
ALSO, I FIND THAT THE UNITS PETITIONED FOR BY SEIU LOCAL 49 AND SEIU
LOCAL 92, RESPECTIVELY, CONSTITUTE APPROPRIATE UNITS. THUS, THE RECORD
DEMONSTRATES THAT THE EMPLOYEES IN THE CLAIMED SATELLITE UNITS HAVE THE
SAME IMMEDIATE TERMS AND CONDITIONS OF EMPLOYMENT, THAT THEY ARE WIDELY
SEPARATED GEOGRAPHICALLY FROM OTHER EMPLOYEES OF THE NORTHWEST AREA
EXCHANGE, AND THAT THEY DO NOT INTERCHANGE WITH EMPLOYEES OF THE OTHER
COMPONENTS OF THE NORTHWEST AREA EXCHANGE. MOREOVER, THE EVIDENCE
ESTABLISHES THAT THE AUTHORITY TO HIRE AND TO DISCIPLINE EXISTS AT THE
LOCAL LEVEL, WITH FINAL APPROVAL FOR SUCH ACTIONS RESTING WITH THE
GENERAL MANAGER. UNDER THESE CIRCUMSTANCES, I FIND THAT THE EMPLOYEES
IN THE UNITS SOUGHT BY SEIU LOCAL 49 AND SEIU LOCAL 92 SHARE A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST. MOREOVER, THE EVIDENCE DID NOT
ESTABLISH THAT SUCH UNITS WOULD FAIL TO PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. /11/
ELIGIBILITY ISSUES
THE RECORD REVEALS THAT THE NORTHWEST AREA EXCHANGE EMPLOYS
APPROXIMATELY 36 OFF-DUTY MILITARY PERSONNEL WHO, BECAUSE OF AGENCY
REGULATIONS, ARE CLASSIFIED AS "TEMPORARY PART-TIME." THESE EMPLOYEES
PERFORM SUBSTANTIALLY THE SAME WORK, ARE PAID ACCORDING TO THE SAME WAGE
SCALE, AND ARE SUBJECT TO THE SAME WORKING CONDITIONS AS CIVILIAN
EMPLOYEES. UNDER THESE CIRCUMSTANCES, I FIND THAT IF SUCH OFF-DUTY
MILITARY PERSONNEL HAVE BEEN EMPLOYED FOR A SUFFICIENT NUMBER OF HOURS
TO ACQUIRE REGULAR FULL-TIME OR REGULAR PART-TIME EMPLOYEE STATUS, THEY
SHOULD BE CONSIDERED AS SUCH FOR THE PURPOSE OF INCLUSION IN THE UNITS
FOUND APPROPRIATE. /12/
THE AFGE AND THE ACTIVITY AGREED TO EXCLUDE FROM THE CLAIMED AREA
EXCHANGE-WIDE UNIT TEMPORARY FULL0TIME EMPLOYEES, TEMPORARY PART-TIME
EMPLOYEES, CASUAL AND ON-CALL EMPLOYEES. AS THE RECORD REVEALS THAT
NEITHER TEMPORARY PART-TIME NOR ON-CALL EMPLOYEES HAVE A REASONABLE
EXPECTANCY OF CONTINUED EMPLOYMENT, I FIND THAT SUCH CATEGORIES SHOULD
BE EXCLUDED FROM THE UNITS FOUND APPROPRIATE. FURTHER, INASMUCH AS THE
EVIDENCE ESTABLISHES THAT THERE ARE NO TEMPORARY FULL-TIME OR CASUAL
EMPLOYEES PRESENTLY EMPLOYED BY THE NORTHWEST AREA EXCHANGE, I SHALL NOT
AT THIS TIME MAKE ANY FINDINGS WITH RESPECT TO WHETHER THEY PROPERLY
COME WITHIN THE EXCLUDED CATEGORY OF EMPLOYEES BASED ON THEIR JOB STATUS
AT THE ACTIVITY. /13/ ALTHOUGH THE PETITION, AS AMENDED AT THE HEARING,
CONTAINED REFERENCE TO CONFIDENTIAL EMPLOYEES, THERE IS NO RECORD
EVIDENCE HEREIN THAT THERE ARE EMPLOYEES IN THIS CLASSIFICATION.
ACCORDINGLY, I MAKE NO FINDING WITH RESPECT TO THE CONFIDENTIAL
EMPLOYEES CLASSIFICATION.
HAVING FOUND THAT THE EMPLOYEES PETITIONED FOR BY SEIU LOCALS 49 AND
92 MAY, IF THEY SO DESIRE, CONSTITUTE SEPARATE APPROPRIATE UNITS, I
SHALL NOT MAKE ANY FINAL UNIT DETERMINATION AT THIS TIME, BUT SHALL
FIRST ASCERTAIN THE DESIRES OF THE EMPLOYEES BY DIRECTING ELECTIONS IN
THE FOLLOWING VOTING GROUPS:
VOTING GROUP (A): ALL REGULAR FULL-TIME AND REGULAR PART-TIME
EMPLOYEES, INCLUDING
OFF-DUTY MILITARY PERSONNEL IN EITHER OF THE FOREGOING CATEGORIES,
EMPLOYED BY THE NORTHWEST
AREA EXCHANGE, ARMY AND AIR FORCE EXCHANGE SERVICE, LOCATED AT
KINGSLEY FIELD, KLAMATH FALLS,
OREGON, EXCLUDING TEMPORARY PART-TIME EMPLOYEES, ON-CALL EMPLOYEES,
EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
PROFESSIONAL EMPLOYEES,
MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE
ORDER.
VOTING GROUP (B): ALL REGULAR FULL-TIME AND REGULAR PART-TIME
EMPLOYEES, INCLUDING
OFF-DUTY MILITARY PERSONNEL IN EITHER OF THE FOREGOING CATEGORIES,
EMPLOYED BY THE NORTHWEST
AREA EXCHANGE, ARMY AND AIR FORCE EXCHANGE SERVICE, LOCATED AT
VANCOUVER BARRACKS, VANCOUVER,
WASHINGTON, EXCLUDING TEMPORARY PART-TIME EMPLOYEES, ON-CALL
EMPLOYEES, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
PROFESSIONAL EMPLOYEES,
MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE
ORDER.
VOTING GROUP (C): ALL REGULAR FULL-TIME AND REGULAR PART-TIME
EMPLOYEES, INCLUDING
OFF-DUTY MILITARY PERSONNEL IN EITHER OF THE FOREGOING CATEGORIES,
EMPLOYED BY THE NORTHWEST
AREA EXCHANGE, ARMY AND AIR FORCE EXCHANGE SERVICE, EXCLUDING ALL
EMPLOYEES IN VOTING GROUPS
(A) AND (B), TEMPORARY PART-TIME EMPLOYEES, ON-CALL EMPLOYEES,
EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, PROFESSIONAL
EMPLOYEES, MANAGEMENT
OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
IF A MAJORITY OF THE EMPLOYEES VOTING IN GROUP (A) SELECTS THE LABOR
ORGANIZATION (SEIU LOCAL 49) SEEKING TO REPRESENT THEM SEPARATELY, THEY
WILL BE TAKEN TO HAVE INDICATED THEIR DESIRE TO CONSTITUTE A SEPARATE
APPROPRIATE UNIT AND THE AREA ADMINISTRATOR SUPERVISING THE ELECTION IS
INSTRUCTED TO ISSUE A CERTIFICATION OF REPRESENTATIVE TO THE LABOR
ORGANIZATION SEEKING TO REPRESENT THEM SEPARATELY. HOWEVER, IF A
MAJORITY OF THE EMPLOYEES VOTING IN GROUP (A) DOES NOT VOTE FOR THE
LABOR ORGANIZATION (SEIU LOCAL 49) WHICH IS SEEKING TO REPRESENT THEM IN
A SEPARATE UNIT, THE BALLOTS OF THE EMPLOYEES IN SUCH VOTING GROUP WILL
BE POOLED WITH THOSE OF THE EMPLOYEES VOTING IN GROUP (C). IF A
MAJORITY OF EMPLOYEES IN VOTING GROUP (B) SELECTS THE LABOR ORGANIZATION
(SEIU LOCAL 92) SEEKING TO REPRESENT THEM SEPARATELY, THEY WILL BE TAKEN
TO HAVE INDICATED THEIR DESIRE TO CONSTITUTE A SEPARATE APPROPRIATE UNIT
AND THE AREA ADMINISTRATOR SUPERVISING THE ELECTION IS INSTRUCTED TO
ISSUE A CERTIFICATION OF REPRESENTATIVE TO THE LABOR ORGANIZATION
SEEKING TO REPRESENT THEM SEPARATELY. HOWEVER, IF A MAJORITY OF THE
EMPLOYEES VOTING IN GROUP (B) DOES NOT VOTE FOR THE LABOR ORGANIZATION
(SEIU LOCAL 92) WHICH IS SEEKING TO REPRESENT THEM IN A SEPARATE UNIT,
THE BALLOTS OF THE EMPLOYEES IN SUCH A VOTING GROUP WILL BE POOLED WITH
THOSE OF THE EMPLOYEES VOTING IN GROUP (C). THE EMPLOYEES IN VOTING
GROUP (C) SHALL VOTE WHETHER OR NOT THEY DESIRE TO BE REPRESENTED BY THE
AFGE. /14/
ELECTIONS BY SECRET BALLOT SHALL BE CONDUCTED AMONG EMPLOYEES IN THE
VOTING GROUPS DESCRIBED ABOVE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTIONS, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE VOTING GROUPS WHO WERE
EMPLOYED DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO HAVE QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE
DESIGNATED PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED
BEFORE THE ELECTION DATE. THOSE ELIGIBLE IN VOTING GROUP (A) SHALL VOTE
WHETHER THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION BY SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, LOCAL 49;
BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1504;
OR BY NEITHER. THOSE ELIGIBLE IN VOTING GROUP (B) SHALL VOTE WHETHER
THEY DESIRE TO BE REPRESENTED BY SERVICE EMPLOYEES INTERNATIONAL UNION,
AFL-CIO, LOCAL 92; BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1504; OR BY NEITHER. THOSE ELIGIBLE IN VOTING GROUP (C)
SHALL VOTE WHETHER OR NOT THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1504.
DATED, WASHINGTON, D.C.
JANUARY 8, 1974
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE NAME OF THIS PETITIONER APPEARS AS AMENDED AT THE HEARING.
/3/ THE NAME OF THIS PETITIONER APPEARS AS AMENDED AT THE HEARING.
/4/ THE NAME OF THIS PETITIONER APPEARS AS AMENDED AT THE HEARING.
/5/ THE UNIT DESCRIPTION APPEARS AS AMENDED AT THE HEARING.
/6/ THERE IS NO HISTORY OF BARGAINING WITH RESPECT TO THE EMPLOYEES
COVERED BY THE PETITIONS FILED IN THE SUBJECT CASES.
/7/ OF THE SEVEN SATELLITE EXCHANGES LOCATED IN THE STATE OF
WASHINGTON, FORT LEWIS, MCCHORD AIR FORCE BASE, MADIGAN HOSPITAL AND
FORT LAWTON ARE LOCATED IN THE SEATTLE-TACOMA AREA, WHILE YAKIMA FIRING
CENTER, SPOKANE AREA EXCHANGE AND VANCOUVER BARRACKS ARE GEOGRAPHICALLY
SEPARATED BY CONSIDERABLE DISTANCES. THE ONE SATELLITE EXCHANGE IN THE
STATE OF OREGON IS LOCATED AT KINGSLEY AIR FORCE STATION.
/8/ SITE EXCHANGES ARE LOCATED AT NANAIMO, VANCOUVER ISLAND, BRITISH
COLUMBIA; NEAH BAY, WASHINGTON; KINGSTON, WASHINGTON; MT. HEBO,
OREGON; NORTH BEND, OREGON; WALLA WALLA, WASHINGTON; OTHELLO,
WASHINGTON; AND UMATILLA, OREGON.
/9/ THE SPOKANE AREA EXCHANGE IS THE ONLY EXCHANGE WITHIN THE
NORTHWEST AREA EXCHANGE WHICH HAS AN EXCHANGE MANAGER. FURTHER, THE
SPOKANE AREA EXCHANGE, UNLIKE THE SMALLER SATELLITES, EMPLOYS A
PERSONNEL SUPERVISOR AS WELL AS SEVERAL CLERICAL EMPLOYEES.
/10/ CF. ARMY AND AIR FORCE EXCHANGE SERVICE, VANDENBERG AIR FORCE
BASE EXCHANGE, VANDENBERG AIR FORCE BASE, CALIFORNIA, A/SLMR NO. 218.
/11/ CF. DEPARTMENT OF THE NAVY, ALAMEDA NAVAL AIR STATION, A/SLMR
NO. 6, FLRC NO. 71A-9.
/12/ IT HAS BEEN FOUND PREVIOUSLY THAT OFF-DUTY MILITARY PERSONNEL,
WHO WORK A SUFFICIENT NUMBER OF HOURS TO BE CLASSIFIED AS EITHER REGULAR
FULL-TIME OR REGULAR PART-TIME, MAY NOT BE EXCLUDED FROM A UNIT ON THE
BASIS OF AGENCY REGULATIONS WHICH CATEGORIZE SUCH PERSONNEL AS
"TEMPORARY PART-TIME" EMPLOYEES REGARDLESS OF THE TIME THEY WORK OR
OTHERWISE AUTOMATICALLY EXCLUDE THEM FROM BARGAINING UNITS. SEE, E.G.,
ARMY AND AIR FORCE EXCHANGE SERVICE, FORT HUACHUCA EXCHANGE SERVICE,
FORT HUACHUCA, ARIZONA, A/SLMR NO. 167.
/13/ CF. ALASKAN EXCHANGE SYSTEM, BASE EXCHANGE, FORT GREELY, ALASKA,
A/SLMR NO. 33; AND ARMY AND AIR FORCE EXCHANGE SERVICE, GOLDEN GATE
EXCHANGE REGION, STORAGE AND DISTRIBUTION BRANCH, NORTON AIR FORCE BASE,
CALIFORNIA, A/SLMR NO. 190.
/14/ IF THE VOTES OF VOTING GROUP (A) AND/OR (B) ARE POOLED WITH THE
VOTES OF VOTING GROUP (C), THEY ARE TO BE TALLIED IN THE FOLLOWING
MANNER: IN VOTING GROUPS (A) AND/OR (B), THE VOTES FOR SEIU LOCAL 49
AND SEIU LOCAL 92, RESPECTIVELY, THE LABOR ORGANIZATIONS SEEKING
SEPARATE UNITS, SHALL BE COUNTED AS PART OF THE TOTAL NUMBER OF VALID
VOTES CAST BUT NEITHER FOR NOR AGAINST THE AFGE, THE LABOR ORGANIZATION
SEEKING TO REPRESENT THE AREA EXCHANGE-WIDE UNIT. ALL OTHER VOTES ARE
TO BE ACCORDED THEIR FACE VALUE. I FIND THAT, UNDER THE CIRCUMSTANCES,
ANY UNIT RESULTING FROM A POOLING OF VOTES AS DESCRIBED ABOVE
CONSTITUTES AN APPROPRIATE UNIT FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
UNDER THE ORDER.
4 A/SLMR 337; P. 48; CASE NO. 72-3620(26); JANUARY 8, 1974.
DEPARTMENT OF THE AIR FORCE,
NORTON AIR FORCE BASE, CALIFORNIA
A/SLMR NO. 337
THIS PROCEEDING AROSE UPON THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1485 (COMPLAINANT) AGAINST THE DEPARTMENT OF THE AIR FORCE, NORTON
AIR FORCE BASE, CALIFORNIA (RESPONDENT). THE COMPLAINT, AS AMENDED,
ALLEGED, AMONG OTHER THINGS, THAT THE RESPONDENT VIOLATED SECTION
19(A)(1) OF THE ORDER BY ASSISTING AND PERMITTING THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES (NFFE), INDEPENDENT, LOCAL 687, TO
DISTRIBUTE ITS NEWSPAPERS IN AREAS WHERE THE COMPLAINANT HAS EXCLUSIVE
RECOGNITION; AND BY ALLOWING NFFE TO DISTRIBUTE ITS NEWSPAPERS IN
BUILDING 502, THE LOCATION OF THE CIVILIAN PERSONNEL OFFICE, WHILE NOT
ALLOWING THE COMPLAINANT TO DO SO. THE ADMINISTRATIVE LAW JUDGE ISSUED
A REPORT AND RECOMMENDATION IN WHICH HE RECOMMENDED THAT THE COMPLAINT
BE DISMISSED IN ITS ENTIRETY.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE MATTER, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE ASSISTANT SECRETARY
ADOPTED THE FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE
ADMINISTRATIVE LAW JUDGE. THUS, THE ASSISTANT SECRETARY AFFIRMED THE
ADMINISTRATIVE LAW JUDGE'S FINDING THAT: (1) THE RECORD DID NOT
ESTABLISH THAT THE RESPONDENT AUTHORIZED, APPROVED, KNEW IN ADVANCE, OR
IN ANY WAY WAS RESPONSIBLE FOR THE FEW ISOLATED INCIDENTS WHERE NFFE
NEWSPAPERS WERE FOUND IN AFGE EXCLUSIVE AREAS; AND (2) GIVEN NO
DISAGREEMENT BY THE PARTIES OVER THE GENERAL TERMS OF THE RESPONDENT'S
DISTRIBUTION POLICY, THE RESPONDENT PROPERLY APPLIED ITS GENERAL
POLICY-- LIMITING THE DISTRIBUTION OF A LABOR ORGANIZATION'S LITERATURE
TO THOSE AREAS WHERE THE EMPLOYEES ARE EXCLUSIVELY REPRESENTED BY THAT
LABOR ORGANIZATION-- BY NOT ALLOWING THE COMPLAINANT TO DISTRIBUTE ITS
NEWSPAPERS IN BUILDING 502 WHERE NFFE HELD EXCLUSIVE RECOGNITION.
DEPARTMENT OF THE AIR FORCE,
NORTON AIR FORCE BASE, CALIFORNIA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1485
ON OCTOBER 25, 1973, ADMINISTRATIVE LAW JUDGE SAMUEL A. CHAITOVITZ
ISSUED HIS REPORT AND RECOMMENDATION 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. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATION.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 72-3620(26) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JANUARY 8, 1974
DEPARTMENT OF THE AIR FORCE
NORTON AIR FORCE BASE, CALIFORNIA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1485 AFL-CIO
CAPTAIN GORDON B. FINLEY, JR. ESQ.
CAPTAIN CHARLES A. WIEST, ESQ.
HEADQUARTERS, 22ND AIR FORCE/JA
TRAVIS AIR FORCE BASE, CALIFORNIA 94535
DOLPH DAVID SAND, ESQ.
STAFF COUNSEL
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
1325 MASSACHUSETTS AVENUE, N.W.
WASHINGTON, D.C. 20005
BEFORE: SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
THE PROCEEDING HEREIN AROSE UNDER EXECUTIVE ORDER 11491 (HEREIN
CALLED THE ORDER) PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON
MAY 8, 1973, BY THE REGIONAL ADMINISTRATOR OF THE UNITED STATES
DEPARTMENT OF LABOR, LABOR MANAGEMENT SERVICES ADMINISTRATION, SAN
FRANCISCO REGION.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1485, AFL-CIO
(HEREIN CALLED THE COMPLAINANT OR AFGE) INITIATED THE MATTER BY FILING A
COMPLAINT ON APRIL 7, 1972, AGAINST THE DEPARTMENT OF THE AIR FORCE,
NORTON AIR FORCE BASE (HEREIN CALLED THE RESPONDENT OR ACTIVITY)
ALLEGING THAT THE ACTIVITY VIOLATED SECTIONS 19(A)(1) AND (3) OF THE
ORDER BY ASSISTING AND PERMITTING LOCAL 687 OF THE NATIONAL FEDERATION
OF FEDERAL EMPLOYEES (HEREIN CALLED NFFE) TO DISTRIBUTE ITS NEWSPAPERS
IN AREAS WHERE AFGE HAD EXCLUSIVE RECOGNITION; ALLOWING NFFE TO
DISTRIBUTE NEWSPAPERS IN THE PERSONNEL BUILDING WHILE REFUSING TO ALLOW
AFGE TO DISTRIBUTE ITS NEWSPAPER IN THAT BUILDING; AND BY PERMITTING
NFFE TO CONDUCT EXTENDED MEMBERSHIP CAMPAIGNS WHILE DENYING THE SAME
PRIVILEGES TO AFGE. /1/ THE COMPLAINT WAS AMENDED BY AFGE BY LETTER
DATED MARCH 12, 1973, DELETING "REFERENCE TO VIOLATION OF SECTION
19(A)(3)" OF THE ORDER. /2/
A HEARING WAS HELD BEFORE THE UNDERSIGNED ON JUNE 11, 1973, IN LOS
ANGELES, CALIFORNIA. AFGE AND THE ACTIVITY WERE REPRESENTED BY COUNSEL
AND WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND
TO EXAMINE AS WELL AS CROSS-EXAMINE WITNESSES. THEREAFTER BOTH
COMPLAINANT AND RESPONDENT WERE AFFORDED AN OPPORTUNITY TO FILE BRIEFS.
/3/
UPON THE ENTIRE RECORD IN THIS CASE, FROM HIS OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, THE UNDERSIGNED MAKES THE FOLLOWING FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS:
IN JUNE 1970, A REPRESENTATION ELECTION WAS HELD AMONG A RESIDUAL
UNIT OF THE CIVILIAN EMPLOYEES AT THE NORTON AIR FORCE BASE. /4/ THIS
ELECTION WAS INCONCLUSIVE AND A RUNOFF ELECTION WAS CONDUCTED ABOUT ONE
MONTH LATER. NFFE RECEIVED A MAJORITY OF THE VOTES CAST AND ON MARCH
30, 1971, A CERTIFICATION OF REPRESENTATIVE TO THIS EFFECT WAS ISSUED BY
THE LOS ANGELES AREA ADMINISTRATOR OF LABOR MANAGEMENT SERVICES
ADMINISTRATION OF THE DEPARTMENT OF LABOR.
BY LETTER DATED APRIL 9, 1971, THE ACTIVITY ADVISED AFGE OF THE NFFE
CERTIFICATION. THE LETTER ALSO ADVISED AFGE THAT PURSUANT TO THE ORDER
AND AIR FORCE MANUAL THE DUES WITHHOLDING ARRANGEMENT HAD TO BE REVISED
AND FURTHER THAT "THE TERMINATION OF FORMAL RECOGNITION WILL LIMIT YOUR
ACTIVITIES TO YOUR EXCLUSIVE UNITS. HENCEFORTH, DISTRIBUTION OF YOUR
ORGANIZATION NEWSPAPERS AND OTHER LITERATURE REGARDING YOUR ACTIVITIES
MUST BE CONFINED TO THOSE EXCLUSIVE UNITS." /5/
THE CIVILIAN PERSONNEL OFFICE (CPO) AT NORTON AIR FORCE BASE IS
SITUATED IN BUILDING 502. AS A RESULT OF THE REPRESENTATION ELECTION
DESCRIBED ABOVE, NFFE HAD BEEN CERTIFIED AND RECOGNIZED AS THE EXCLUSIVE
COLLECTIVE BARGAIN REPRESENTATION OF THE QUALIFIED CIVILIAN EMPLOYEES IN
THE CPO. /6/ APPROXIMATELY 75 PERCENT OF THE CIVILIAN EMPLOYEES AT
NORTON AIR FORCE BASE HAVE BUSINESS IN THIS BUILDING AT SOMETIME DURING
THEIR GOVERNMENT SERVICE. ON OR ABOUT SEPTEMBER 1971 AFGE BECAME AWARE
THAT NFFE HAD A PILE OF ITS NEWSPAPERS "THE FEDERAL EMPLOYEE," STACKED
FOR FREE DISTRIBUTION IN THE LOBBY OF BUILDING 502. AFGE WAS DENIED
PERMISSION TO PLACE NEWSPAPERS THERE BECAUSE NFFE HAD EXCLUSIVE
RECOGNITION IN BUILDING 502. /8/
ON ONE OCCASION IN SEPTEMBER 1971, A STACK OF NFFE NEWSPAPERS WAS
FOUND IN BUILDING 477. AFGE IS THE EXCLUSIVE REPRESENTATIVE OF THE
CIVILIAN-EMPLOYEES IN THAT BUILDING AND NFFE REPRESENTS NO EMPLOYEES
LOCATED THERE. AFGE COMPLAINED TO THE ACTIVITY ABOUT THE PRESENCE OF
THE NFFE NEWSPAPERS IN BUILDING 477. THE NEWSPAPERS WERE IMMEDIATELY
REMOVED BY AFGE AND THE NEWSPAPERS DID NOT REAPPEAR. NO EVIDENCE WAS
INTRODUCED THAT THE ACTIVITY PLACED THESE NEWSPAPERS OR AUTHORIZED,
CONDONED OR EVEN KNEW IN ADVANCE THAT NFFE PAPERS WOULD BE LEFT IN
BUILDING 477. /9/
INDIVIDUAL COPIES OF NFFE NEWSPAPERS WERE FOUND ON A FEW OCCASIONS IN
OTHER BUILDINGS WHERE AFGE WAS THE EXCLUSIVE REPRESENTATIVE. NO
EVIDENCE WAS INTRODUCED THAT THE ACTIVITY PLACED THESE NEWSPAPERS OR
AUTHORIZED, CONDONED OR KNEW IN ADVANCE OF THESE INCIDENTS. /10/
AFGE COMPLAINED TO THE ACTIVITY ABOUT THE ABOVE INCIDENTS AS ALLEGED
VIOLATIONS OF THE DISTRIBUTION RULE. AFGE WAS ADVISED THAT AN
INVESTIGATION WOULD BE CONDUCTED BY THE ACTIVITY. NO EVIDENCE WAS
INTRODUCED AS TO THE EXTENT OF ANY SUCH INVESTIGATION.
ON AT LEAST ONE OCCASION DURING THE PERIOD IN QUESTION, THE AFGE
NEWSPAPER WAS PLACED IN AN AREA WHERE NFFE WAS THE EXCLUSIVE
REPRESENTATIVE. /11/ AFGE REMOVED THESE PAPERS WHEN REQUESTED TO DO SO
BY THE ACTIVITY.
IN BUILDING 534, AFGE REPRESENTS THE CIVILIAN EMPLOYEES OF THE 1965TH
COMMUNICATION SQUADRON /12/ AND LEAVES ITS NEWSPAPERS IN THE LOBBY.
ALSO LOCATED IN BUILDING 534 IS THE EMPLOYEES CREDIT UNION AND IT IS
OPEN TO AND USED BY THE EMPLOYEES OF THE ENTIRE BASE. ALL EMPLOYEES OF
THE POST CAN COME AND RELAX AT THE GALAXY CLUB, A TYPE OF RESTAURANT, OR
COCKTAIL LOUNGE LOCATED ON THE GROUNDS OF THE NORTON AIR FORCE BASE.
THE GALAXY CLUB EMPLOYEES ARE REPRESENTED BY AFGE. AFGE HAS NOT LEFT
ITS PAPERS AT THE GALAXY CLUB, ALTHOUGH THEY HAVE NOT BEEN FORBIDDEN TO
DO SO AND THE AFGE VICE PRESIDENT DIDN'T KNOW WHY THEIR PAPERS WERE NOT
DISTRIBUTED AT THE GALAXY CLUB.
AFGE CONTENDS THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) BY: (1)
ALLOWING NFFE TO DISTRIBUTE ITS NEWSPAPERS IN AREAS WHERE AFGE IS THE
EXCLUSIVE REPRESENTATIVE AND (2) NOT ALLOWING AFGE TO DISTRIBUTE ITS
NEWSPAPERS IN THE CPO, WHILE ALLOWING NFFE TO DISTRIBUTE ITS NEWSPAPERS
THERE.
WITH RESPECT TO THE LATTER POINT AFGE CONTENDS THAT THE CPO IS A
UNIQUE AREA AND, EVEN THOUGH NFFE REPRESENTS THE EMPLOYEES LOCATED
THERE, TO ALLOW NFFE THIS ADVANTAGE OF DISTRIBUTING ITS NEWSPAPERS
VIOLATES SECTION 19(A)(1). /13/ AFGE MADE IT QUITE CLEAR, HOWEVER, . .
. IT WAS NOT ALLEGING AS A VIOLATION OF THE ORDER THAT THE AIR FORCE
POLICY AND THE EXISTING PRACTICE AT THE ACTIVITY OF LIMITING A LABOR
ORGANIZATION'S RIGHT TO DISTRIBUTE LITERATURE SOLELY TO THOSE AREAS
WHERE THE LABOR ORGANIZATION WAS THE EXCLUSIVE REPRESENTATIVE. RATHER
AFGE CONTENDS SOLELY THAT THE APPLICATION OF THE POLICY TO THE CPO, AN
ALLEGEDLY UNIQUE AREA, VIOLATES SECTION 19(A)(1) OF THE ORDER.
THE ACTIVITY CONTENDS THAT IT DID NOT VIOLATE SECTION 19(A)(1) OF THE
ORDER BECAUSE THE APPLICATION OF ITS LITERATURE DISTRIBUTION POLICY TO
THE CPO WAS PROPER AND BECAUSE IT WAS NOT RESPONSIBLE FOR THE
DISTRIBUTION OR APPEARANCE OF THE NFFE NEWSPAPER IN THE AREAS
REPRESENTED BY AFGE. THE ACTIVITY FURTHER CONTENDS THAT AFGE'S UNFAIR
LABOR PRACTICE CHARGES WERE UNTIMELY FILED AND THAT NFFE WAS A NECESSARY
PARTY TO THE SUBJECT PROCEEDING. /14/
AFGE HAS MADE IT QUITE CLEAR THAT IT IS NOT ATTACKING, OR ALLEGING AS
A VIOLATION OF THE ORDER, THE ACTIVITY'S GENERAL POLICY OF LIMITING THE
DISTRIBUTION OF A LABOR ORGANIZATION'S LITERATURE TO THOSE AREAS WHERE
THE EMPLOYEES ARE EXCLUSIVELY REPRESENTED BY THAT LABOR ORGANIZATION.
NEITHER AFGE NOR THE RESPONDENT ADDRESSED ITSELF, IN BRIEFS OR ORAL
ARGUMENT, TO ANY ATTACK ON THIS GENERAL DISTRIBUTION POLICY. THEREFORE,
I CONCLUDE THAT THIS MATTER IS NOT BEFORE ME AND NO CONCLUSION AS TO ITS
LEGALITY IS MADE HEREIN. HOWEVER, WITHOUT RULING UPON IT, FOR THE
PURPOSES OF WRITING THIS DECISION ONLY, THIS DISTRIBUTION POLICY WILL BE
CONSIDERED TO BE LAWFUL AND NOT IN VIOLATION OF THE ORDER.
WITH RESPECT TO THE ACTIVITY'S CONTENTION THAT THE SUBJECT UNFAIR
LABOR PRACTICE COMPLAINT WAS NOT TIMELY FILED, THE ALLEGED INCIDENTS
INVOLVING THE REFUSAL TO ALLOW AFGE TO PLACE ITS NEWSPAPERS IN BUILDING
502 COMMENCED IN SEPTEMBER 1971, AS DID THE OTHER INCIDENTS INVOLVING
THE PLACING OF THE NFFE PAPERS IN THE AFGE AREAS. THE UNFAIR LABOR
PRACTICE CHARGES WERE SENT BY AFGE TO THE ACTIVITY ON OCTOBER 7, 1971,
AND FEBRUARY 4, 1972, AND THE UNFAIR LABOR PRACTICE COMPLAINT WAS FILED
ON APRIL 7, 1972, ALL WITHIN THE TIME REQUIREMENTS SET FORTH IN SEC.
203.2 OF THE RULES AND REGULATIONS. THE ACTIVITY ALLEGES THAT THE DATE
OF ALLEGED VIOLATION SHOULD NOT BE SEPTEMBER 1971, BUT RATHER APRIL 9,
1971, WHEN AFGE WAS ADVISED OF THE DISTRIBUTION POLICY. HOWEVER, AS
DISCUSSED ABOVE, AFGE IS NOT ATTACKING THE GENERAL DISTRIBUTION POLICY.
IT IS LIMITING ITSELF TO THE ALLEGED CONDUCT OF THE ACTIVITY IN REFUSING
TO ALLOW AFGE TO PLACE ITS NEWSPAPERS IN THE CPO AND IN PERMITTING NFFE
TO PLACE ITS NEWSPAPERS IN THE AFGE AREAS. IT IS THEREFORE CONCLUDED
THAT THE SUBJECT UNFAIR LABOR PRACTICE CHARGES AND COMPLAINT WERE NOT
UNTIMELY WITHIN THE MEANING OF THE RULES AND REGULATIONS, /15/ SINCE
THEY SPECIFICALLY BRING INTO ISSUE THE LEGALITY OF SPECIFIC INCIDENTS
THAT COMMENCED IN SEPTEMBER 1971.
THE RECORD ESTABLISHES ONLY A FEW ISOLATED INCIDENTS WHERE THIS
GENERAL DISTRIBUTION RULE WAS POSSIBLY VIOLATED BY NFFE NEWSPAPERS BEING
PLACED IN AREAS WHERE THE EMPLOYEES ARE REPRESENTED BY AFGE. IN ALL THE
INCIDENTS EXCEPT ONE, IT INVOLVED ONLY ONE OR TWO PAPERS. THERE WAS NO
EVIDENCE AS TO WHO LEFT THE NEWSPAPERS; /16/ THEY COULD HAVE BEEN LEFT
BY AN EMPLOYEE WHO HAD BEEN PASSING BY. THE ONE EXCEPTION INVOLVED THE
NFFE PAPERS IN BUILDING 477. THE RECORD HEREIN DOES NOT ESTABLISH THAT
THE ACTIVITY AUTHORIZED, APPROVED, KNEW IN ADVANCE OR IN ANYWAY WAS
RESPONSIBLE FOR ANY OF THESE INCIDENTS. FURTHER, THE RECORD DOES NOT
ESTABLISH THAT THE ACTIVITY IN ANY WAY REFUSED OR FAILED TO ENFORCE ITS
GENERAL DISTRIBUTION POLICY FAIRLY. IN LIGHT OF THE FOREGOING, IT IS
CONCLUDED THAT WITH RELATION TO THESE INCIDENTS THE ACTIVITY DID NOT
ENGAGE IN ANY CONDUCT WHICH VIOLATED SECTION 19(A)(1) OF THE ORDER.
THE ACTIVITY'S LITERATURE DISTRIBUTION POLICY, WHICH IS NOT UNDER
ATTACK AND IS ASSUMED TO BE LAWFUL UNDER THE ORDER, BY ITS TERMS,
APPLIES TO THE CPO AND BUILDING 502. TO FIND THE APPLICATION OF THIS
POLICY TO THE CPO UNLAWFUL, WHILE NOT FINDING THE UNDERLYING POLICY
UNLAWFUL, WOULD, IN EFFECT, REQUIRE A REWRITING OF THE CLEAR TERMS OF
THE GENERAL POLICY. /17/ THE ORDER DOES NOT BESTOW UPON THE UNDERSIGNED
THE AUTHORITY TO REWRITE THE TERMS OF SUCH POLICIES. THEREFORE, THE
POLICY WITH RESPECT TO THE CPO CANNOT BE FOUND TO BE UNLAWFUL WITHOUT A
FINDING THAT THE ENTIRE POLICY BY ITS TERMS IS UNLAWFUL. SOMETHING THAT
IS NOT ALLEGED, WAS NOT ARGUED AND THEREFORE, AS DISCUSSED ABOVE, I AM
NOT PREPARED TO DO. I AM THUS CONSTRAINED TO CONCLUDE THAT THE POLICY
WITH RESPECT TO THE CPO, IN THE FRAMEWORK OF THE GENERAL LITERATURE
DISTRIBUTION POLICY DOES NOT INTERFER WITH EMPLOYEES EXERCISE OF THEIR
RIGHTS AS PROTECTED BY THE ORDER.
IN ANY EVENT, IT IS CONCLUDED THAT THE RECORD DOES NOT ESTABLISH THAT
THE CPO AND BUILDING 502 ARE SO UNIQUE AS TO JUSTIFY A FINDING THAT,
ASSUMING THE BASIC POLICY IS LAWFUL, THE APPLICATION OF THE LITERATURE
DISTRIBUTION VIOLATES SECTION 19(A)(1) OF THE ORDER. AFGE URGES SUCH A
FINDING IS JUSTIFIED BECAUSE 75 PERCENT OF ALL CIVILIAN EMPLOYEES APPEAR
AT THE CPO AT SOME TIME DURING THEIR CAREERS. THEREFORE, ALLOWING NFFE
EXCLUSIVE RIGHT TO DISTRIBUTE ITS NEWSPAPERS GIVES NFFE AN UNFAIR
ADVANTAGE. /18/
HOWEVER, THE SAME CONSIDERATION WOULD APPLY TO THE CREDIT UNION IN
BUILDING 534 AND THE GALAXY CLUB, TWO AREAS OPEN TO AND VISITED BY
EMPLOYEES FROM ALL OVER THE BASE, WHERE AFGE, BY VIRTUE OF ITS
REPRESENTATIVE STATUS, HAS EXCLUSIVE RIGHTS TO DISTRIBUTE ITS
NEWSPAPERS. AFGE DID NOT FILE A BRIEF AND DID NOT IN ITS ORAL ARGUMENT
INDICATE HOW OR WHY THE CPO SHOULD BE DISTINGUISHED FROM THE CREDIT
UNION OR THE GALAXY CLUB.
IN THE CIRCUMSTANCES HERE PRESENT, THEREFORE, I CONCLUDE THAT THE
RESPONDENT ACTIVITY'S APPLICATION OF THE LITERATURE DISTRIBUTION POLICY
TO THE CPO AND BUILDING 502 DID NOT CONSTITUTE A VIOLATION OF SECTION
19(A)(1) OF THE ORDER. /19/
IN VIEW OF THE FINDINGS AND CONCLUSIONS MADE ABOVE IT IS RECOMMENDED
THAT THE ASSISTANT SECRETARY OF LABOR FOR LABOR MANAGEMENT RELATIONS
DISMISS THE COMPLAINT IN ITS ENTIRETY.
ENTERED AT WASHINGTON, D.C., THIS 25TH DAY OF OCTOBER, 1973.
/1/ AT THE HEARING, NO EVIDENCE WAS INTRODUCED CONCERNING THE
MEMBERSHIP DRIVE ISSUES. A MOTION BY THE ACTIVITY TO DISMISS THESE
ALLEGATIONS WAS NOT OPPOSED OR OBJECTED TO BY AFGE AND WAS GRANTED BY
THE UNDERSIGNED.
/2/ THE NOTICE OF HEARING ON COMPLAINT THEREFORE ONLY REFERRED TO THE
ALLEGATION THAT SECTION 19(A)(1) OF THE ORDER HAD BEEN VIOLATED.
/3/ COMPLAINANT DID NOT FILE A BRIEF. RESPONDENT'S BRIEF WAS FILED
AUGUST 31, 1973. ALTHOUGH CAPTAIN FINLEY REPRESENTED THE ACTIVITY AT
THE HEARING BECAUSE OF CAPTAIN FINLEY'S TRANSFER, RESPONDENT SUBSTITUTED
CAPTAIN WIEST AFTER THE HEARING CLOSED AND CAPTAIN WIEST SUBMITTED THE
BRIEF.
/4/ EXEMPTED FROM THE UNIT WERE THOSE EMPLOYEES EMPLOYED IN THE
FOLLOWING UNITS WHICH WERE REPRESENTED BY AFGE:
1. FIRE DEPARTMENT, 63RD CIVIL ENGINEERING SQUADRON;
2. 63RD SECURITY POLICE SQUADRON;
3. 1965TH COMMUNICATION SQUADRON (IN SOME OF THE DOCUMENTARY
EXHIBITS, THIS IS APPARENTLY REFERRED TO AS THE 2193RD COMMUNICATION
SQUADRON);
4. NONAPPROPRIATED FUND EMPLOYEES; AND
5. WAREHOUSE EMPLOYEES OF THE ARMY AND AIR FORCE EXCHANGE SERVICE.
/5/ AT THAT TIME THE AIR FORCE MANUAL 40-13 CHAPTER 1, PARAGRAPH
1-4(A) PROVIDED:
"SUBJECT TO THESE RESTRICTIONS, TO NORMAL SECURITY LIMITATIONS, AND
REASONABLE RESTRICTIONS
WITH REGARD TO THE FREQUENCY, DURATION, LOCATIONS, AND NUMBER OF
PERSONS INVOLVED IN SUCH
ACTIVITIES, LABOR ORGANIZATION REPRESENTATIVES MAY, UPON REQUEST,
POST OR DISTRIBUTE
LITERATURE OR HOLD ORGANIZATION MEETINGS AT THE ACTIVITY. PERMISSION
MAY BE WITHDRAWN,
HOWEVER, WITH RESPECT TO ANY SUCH ACTIVITIES WHICH INTERFERE WITH THE
WORK OF THE
ACTIVITY. PERMISSION IS NOT EXTENDED FOR SUCH ACTIVITIES IN A UNIT
WHERE ANOTHER LABOR
ORGANIZATION HAS BEEN GRANTED EXCLUSIVE RECOGNITION UNLESS A VALID
TIMELY CHALLENGE TO SUCH
RECOGNITION HAS BEEN FILED AND RULES FOR ELECTION CAMPAIGNING
ADOPTED."
REFERENCE TO THIS LIMITATION ON DISTRIBUTION OF UNION PUBLICATIONS
WHERE ANOTHER UNION IS THE EXCLUSIVE REPRESENTATIVE WAS DELETED IN MAY
1972. THE DISTRIBUTION POLICY WAS STILL FOLLOWED AT THE NORTON AIR
FORCE BASE.
/6/ AFGE DOES NOT HAVE EXCLUSIVE RECOGNITION FOR ANY EMPLOYEES IN
BUILDING 502.
/7/ ON OCCASION THESE NEWSPAPERS CONTAINED APPLICATION FOR MEMBERSHIP
IN NFFE.
/8/ THERE IS SOME CONFLICT IN THE TESTIMONY WHETHER AFGE REPEATEDLY
ASKED PERMISSION AND WHETHER THEY COMPLAINED ABOUT THE REFUSAL TO ALLOW
AFGE TO LEAVE PAPERS IN BUILDING 502 WHILE ALLOWING NFFE TO DO SO. THE
ACTIVITY'S WITNESS TESTIFIED CONCERNING THE PERIOD AFTER DECEMBER 1971
THAT AFGE WHEN COMPLAINING ABOUT THE NFFE NEWSPAPER IN BUILDING 502
MERELY COMPLAINED ABOUT THE FACT THAT NFFE WON THE REPRESENTATION
ELECTION. ALTHOUGH THE DIFFERENCE IN THE VARIOUS VERSIONS ARE NOT TOO
GREAT, I CREDIT THE VERSION OF THE AFGE WITNESS TO THE EFFECT THAT
REPEATED REQUESTS FOR PERMISSION TO DISTRIBUTE THEIR NEWSPAPER WERE MADE
AND COMPLAINTS WERE MADE ABOUT THE REFUSAL TO GRANT SUCH PERMISSION.
/9/ NO EVIDENCE WAS SUBMITTED AS TO WHO WAS RESPONSIBLE FOR THE
PLACEMENT OF THESE NFFE NEWSPAPERS.
/10/ NO EVIDENCE WAS SUBMITTED AS TO WHO WAS RESPONSIBLE FOR THE
PLACEMENT OF THESE NFFE NEWSPAPERS.
/11/ THE "SAMSO COMPLEX".
/12/ 1965TH IS LOCATED IN A NUMBER OF BUILDINGS.
/13/ THE ALLEGATION THAT SECTION 19(A)(3) OF THE ORDER HAD BEEN
VIOLATED HAD BEEN WITHDRAWN FROM THE COMPLAINT BY AFGE AND HAD NOT BEEN
INCLUDED IN THE NOTICE OF HEARING.
/14/ NFFE DID NOT MAKE AN APPEARANCE AND WAS NOT REPRESENTED AT THE
SUBJECT HEARING.
/15/ THIS IS NOT IN ANYWAY MEANT TO INDICATE WHETHER ANY ATTACK ON
THE EXISTING AND CONTINUING DISTRIBUTION POLICY, WOULD BE BARRED BY THE
TIME LIMITATIONS SET FORTH IN THE RULES AND REGULATIONS.
/16/ IT SHOULD BE NOTED THAT NO UNFAIR LABOR PRACTICE COMPLAINT WAS
FILED AGAINST NFFE.
/17/ THERE WAS NO ALLEGATION AND NO EVIDENCE SUBMITTED TO THE EFFECT
THAT THE LIMITATION ON AFGE WITH RESPECT TO THE CPO WAS BASED ON ANY
CONSIDERATION OTHER THAN THE TERMS OF THE GENERAL LITERATURE
DISTRIBUTION POLICY. SIMILARLY THERE WAS NO EVIDENCE SUBMITTED THAT
THIS GENERAL POLICY WAS NOT INTENDED TO APPLY TO THE CPO OR THAT IT WAS
BEING APPLIED TO AFGE BUT NOT TO OTHER LABOR ORGANIZATIONS.
/18/ EVEN THOUGH NFFE REPRESENTS THE EMPLOYEES OF THE CPO.
/19/ IN VIEW OF THIS FINDING IT IS UNNECESSARY TO DECIDE WHETHER NFFE
WAS A NECESSARY PARTY TO THIS PROCEEDING AND WHETHER THE FORMAL PAPERS
SHOULD HAVE BEEN SERVED UPON IT.
4 A/SLMR 336; P. 32; CASE NO. 63-4203(CA); JANUARY 8, 1974.
DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU,
TEXAS AIR NATIONAL GUARD
A/SLMR NO. 336
THIS CASE INVOLVES AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
TEXAS AIR NATIONAL GUARD COUNCIL OF LOCALS, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, (COMPLAINT), AGAINST THE ABOVE-NAMED
RESPONDENT ACTIVITY, ALLEGING, AMONG OTHER THINGS, THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1), (2) AND (6), OF EXECUTIVE ORDER 11491, BY
DENYING JAMES BURGAMY, A MEMBER OF LOCAL 3000, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO (AFGE) AND AN EMPLOYEE OF THE TEXAS
NATIONAL GUARD, REENLISTMENT IN THE TEXAS AIR NATIONAL GUARD BECAUSE OF
HIS FILING OF GRIEVANCES AND HIS UNION ACTIVITIES, AND BY DENYING
BURGAMY UNION REPRESENTATION ON SEVERAL OCCASIONS. IT IS ALLEGED THAT
SUCH ACTIONS WERE UNDERTAKEN BY THE RESPONDENT IN ORDER TO DISCOURAGE
MEMBERSHIP AND ACTIVITY IN THE UNION.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT BURGAMY WAS, IN FACT,
DENIED UNION REPRESENTATION ON AT LEAST TWO OCCASIONS. THE FIRST
OCCASION OCCURRED IN APRIL 1972, WHEN BURGAMY WAS BEING "COUNSELLED" BY
A SUPERIOR OFFICER WITH RESPECT TO ALLEGED VERBAL ABUSE ON THE PART OF
BURGAMY. DESPITE THE FACT THAT BURGAMY REQUESTED UNION REPRESENTATION
AT THIS SESSION, IT WAS DENIED HIM BY HIS SUPERIOR OFFICER, WHO STATED
THAT HE DID NOT NEED IT. THE SECOND "COUNSELLING" SESSION AROSE ON
ABOUT MAY 19, 1972, AND CONCERNED BURGAMY'S ARRIVING AT WORK IN CIVILIAN
CLOTHES
CONTRARY TO THE HOLDING OF THE ADMINISTRATIVE LAW JUDGE, THE
ASSISTANT SECRETARY CONCLUDED THAT THE "COUNSELLING SESSIONS" WERE NOT
"FORMAL DISCUSSIONS" WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER,
AND THAT, THEREFORE, THE FAILURE TO PERMIT UNION REPRESENTATION AT SUCH
SESSIONS WAS NOT VIOLATIVE OF SECTION 19(A)(6) OF THE ORDER. IN THIS
CONNECTION, THE ASSISTANT SECRETARY NOTED THAT BOTH INCIDENTS HAD NOT
WIDER RAMIFICATIONS THAN BEING LIMITED DISCUSSIONS AT A PARTICULAR TIME
WITH AN INDIVIDUAL EMPLOYEE, CONCERNING A PARTICULAR INCIDENT.
ACCORDINGLY, AS THE TWO INCIDENTS DID NOT CONSTITUTE "FORMAL
DISCUSSIONS" THE DENIAL OF SUCH REPRESENTATION AT THE PARTICULAR
COUNSELLING SESSIONS DID NOT CONSTITUTE A VIOLATION OF SECTION 19(A)(6)
OF THE ORDER, AND AS THE EXCLUSIVE REPRESENTATIVE WAS NOT ENTITLED TO BE
PRESENT DURING THESE PARTICULAR COUNSELLING SESSIONS, THE DENIAL OF SUCH
REPRESENTATION, IN THE CIRCUMSTANCES OF THIS CASE, WAS NOT FOUND TO
CONSTITUTE A VIOLATION OF SECTION 19(A)(1).
THE ADMINISTRATIVE LAW JUDGE ALSO CONCLUDED THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1) AND (2) OF THE ORDER BY FAILING TO PERMIT
BURGAMY'S MILITARY REENLISTMENT AND BY SUBSEQUENTLY DISCHARGING HIM FROM
CIVILIAN EMPLOYMENT. IN THIS CONNECTION, HE FOUND THE DENIAL OF
BURGAMY'S MILITARY REENLISTMENT WAS FOR DISCRIMINATORY REASONS; THAT
THE REASONS GIVEN FOR SUCH ACTIONS WERE MERELY PRETEXTUAL, AND THAT
RESPONDENT'S ACTIONS WERE IN FACT MOTIVATED BY, AMONG OTHER THINGS,
BURGAMY'S FILING GRIEVANCES AND HIS SEEKING OF UNION REPRESENTATION.
UNDER THESE CIRCUMSTANCES, THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT
THE RESPONDENT BE REQUIRED TO OFFER BURGAMY REINSTATEMENT TO HIS FORMER
POSITION TOGETHER WITH BACKPAY AND INTEREST.
CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, WITH RESPECT TO HIS
19(A)(1) AND (2) FINDINGS, THE ASSISTANT SECRETARY CONCLUDED THAT UNDER
SECTION 19(D) OF THE ORDER, HE DID NOT HAVE JURISDICTION TO DECIDE THE
MERITS OF WHETHER BURGAMY WAS DENIED MILITARY REENLISTMENT FOR
DISCRIMINATORY REASONS, AND WHETHER, ACCORDINGLY, BURGAMY'S SUBSEQUENT
LOSS OF CIVILIAN EMPLOYMENT BASED ON THIS MILITARY DISCHARGE, WOULD
CONSTITUTE A VIOLATION OF THE ORDER. IN THIS CONNECTION, THE ASSISTANT
SECRETARY FOUND THAT BURGAMY WAS AFFORDED THE OPPORTUNITY TO, AND DID,
IN FACT, UTILIZE THE TEXAS AIR NATIONAL GUARD'S APPEALS PROCEDURE AND
THAT THERE WAS NO EVIDENCE THAT BURGAMY WAS PREVENTED FROM RAISING UNDER
THE APPEALS PROCEDURE THE ISSUE OF WHETHER HE WAS DENIED REENLISTMENT
FOR DISCRIMINATORY OR OTHER IMPROPER REASONS UNDER THE ORDER. IT WAS
NOTED THAT BURGAMY, WHILE AVAILING HIMSELF FULLY OF THE APPEALS
PROCEDURE, FAILED TO RAISE THE ISSUE OF DISCRIMINATORY MOTIVATION IN
PRESSING HIS APPEAL.
HAVING FOUND THAT RESPONDENT DID NOT VIOLATE SECTION 19(A)(1) AND (6)
OF THE ORDER, IN DENYING BURGAMY REPRESENTATION BY HIS EXCLUSIVE
REPRESENTATIVE AT CERTAIN "COUNSELLING SESSIONS," AND HAVING FOUND THAT
HE WAS PRECLUDED BY SECTION 19(D) FROM CONSIDERING WHETHER BURGAMY'S
FAILURE TO SECURE MILITARY ENLISTMENT WAS DISCRIMINATORILY MOTIVATED IN
VIOLATION OF SECTION 19(A)(2) OF THE ORDER, THE ASSISTANT SECRETARY
ORDERED THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
DEPARTMENT OF DEFENSE,
NATIONAL GUARD BUREAU,
TEXAS AIR NATIONAL GUARD
AND
TEXAS AIR NATIONAL GUARD
COUNCIL OF LOCALS,
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
ON JULY 27, 1973, ADMINISTRATIVE LAW JUDGE SAMUEL A. CHAITOVITZ
ISSUED HIS REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU, TEXAS AIR
NATIONAL GUARD, HEREIN CALLED RESPONDENT, HAD ENGAGED IN CERTAIN UNFAIR
LABOR PRACTICES AND RECOMMENDING THAT IT TAKES CERTAIN AFFIRMATIVE
ACTION AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S REPORT
AND RECOMMENDATIONS. NO EXCEPTIONS WERE FILED TO THE ADMINISTRATIVE LAW
JUDGE'S REPORT AND RECOMMENDATIONS. /1/
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THE SUBJECT CASE, I HEREBY
ADOPT THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE
ADMINISTRATIVE LAW JUDGE ONLY TO THE EXTENT CONSISTENT HEREWITH.
THE COMPLAINT HEREIN ALLEGED, IN SUBSTANCE, THAT THE RESPONDENT
VIOLATED SECTIONS 19(A)(1), (2) AND (6) OF EXECUTIVE ORDER 11491, BY
DENYING JAMES BURGAMY, A MEMBER OF LOCAL 3000, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO (AFGE) AND AN EMPLOYEE OF THE TEXAS AIR
NATIONAL GUARD, REENLISTMENT IN THE TEXAS AIR NATIONAL GUARD BECAUSE OF
HIS FILING OF GRIEVANCES AND HIS UNION ACTIVITIES, AND BY DENYING
BURGAMY UNION REPRESENTATION ON SEVERAL OCCASIONS. IT IS ALLEGED THAT
SUCH ACTIONS WERE UNDERTAKEN BY THE RESPONDENT IN ORDER TO DISCOURAGE
MEMBERSHIP AND ACTIVITY IN THE UNION.
THE ESSENTIAL FACTS IN THE CASE, WHICH ARE NOT IN DISPUTE, ARE SET
FORTH IN DETAIL IN THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS, AND I SHALL REPEAT THEM ONLY TO THE EXTENT NECESSARY.
JAMES BURGAMY ENLISTED IN THE TEXAS AIR NATIONAL GUARD ON SEPTEMBER
26, 1966. SUBSEQUENTLY, HE BECAME A CIVILIAN EMPLOYEE OF THE TEXAS AIR
NATIONAL GUARD AS AN AIR TECHNICIAN. A CONDITION OF SUCH EMPLOYMENT WAS
MEMBERSHIP IN THE TEXAS AIR NATIONAL GUARD. IN APPROXIMATELY 1969
BURGAMY JOINED, IN HIS CIVILIAN CAPACITY, THE 136TH SUPPLY SQUADRON,
WHOSE COMMANDER WAS COLONEL MILLSON. AS IT IS CUSTOMARY FOR TECHNICIANS
IN THE TEXAS AIR NATIONAL GUARD TO HAVE THEIR CIVILIAN AND MILITARY
POSITIONS AS CLOSELY ALIGNED AS POSSIBLE, IN NOVEMBER 1971 BURGAMY WAS
TRANSFERRED, IN HIS MILITARY CAPACITY, TO THE 136TH SUPPLY SQUADRON,
WHERE HIS DUTIES, BOTH CIVILIAN AND MILITARY, WERE PARALLEL.
BURGAMY'S MILITARY ENLISTMENT IN THE TEXAS NATIONAL GUARD EXPIRED ON
SEPTEMBER 25, 1972, AND HE WAS DENIED REENLISTMENT. PREVIOUSLY, BURGAMY
HAD BEEN NOTIFIED BY LETTER DATED AUGUST 24, 1972, THAT, AS A RESULT OF
THE IMPENDING LOSS OF MILITARY MEMBERSHIP IN THE GUARD, HIS CIVILIAN
EMPLOYMENT WOULD BE TERMINATED ON SEPTEMBER 30, 1972, AND THAT "THERE
WERE NO ADMINISTRATIVE APPEAL RIGHTS TO THIS TERMINATION ACTION," (OF
HIS CIVILIAN EMPLOYMENT), BECAUSE THE CIVILIAN JOB WAS CONTINGENT UPON
SUCCESSFUL MILITARY REENLISTMENT.
THE RECORD REVEALS, HOWEVER, THAT THE DENIAL OF HIS MILITARY
ENLISTMENT WAS APPEALABLE UNDER APPEALS PROCEDURES OF THE TEXAS AIR
NATIONAL GUARD AND THAT BURGAMY, IN FACT, APPEALED THE DECISION NOT TO
REENLIST HIM TO THE HIGHEST LEVEL OF THE TEXAS AIR NATIONAL GUARD, THE
ADJUTANT GENERAL. ON SEPTEMBER 22, 1972, THE ADJUTANT GENERAL ADVISED
BURGAMY THAT THE DENIAL OF HIS REENLISTMENT WAS SUSTAINED. THERE WAS NO
FURTHER APPEAL POSSIBLE FROM THIS DENIAL. /2/
I. DENIAL OF REPRESENTATION AT "COUNSELLING" SESSIONS.
BURGAMY HAD FILED APPROXIMATELY FOUR GRIEVANCES COMMENCING IN JULY
1971, UNTIL THE DATE OF HIS TERMINATION. ALLEGED UNFAIR LABOR PRACTICES
OCCURRED WITH RESPECT TO TWO "COUNSELLING" /3/ INCIDENTS WHICH
CULMINATED IN CERTAIN OF THE ABOVE-NOTED GRIEVANCES. THE FIRST INCIDENT
OCCURRED IN APRIL 1972, WHEN AN ALTERCATION AROSE BETWEEN MAJOR HONEA,
BURGAMY'S SECOND LINE SUPERVISOR, AND BURGAMY, WITH RESPECT TO A
DISCUSSION OF JOB CHANGES. IN THIS CONNECTION, BURGAMY INDICATED THAT
HE DESIRED THAT A UNION REPRESENTATIVE BE PRESENT DURING THE DISCUSSION,
BUT HONEA OBJECTED, STATING THAT THIS WAS NOT NECESSARY. BURGAMY TOOK
EXCEPTION TO HONEA'S POSITION, ALLEGEDLY VERBALLY ABUSED HONEA, AND
WALKED OUT OF THE LATTER'S OFFICE. LATER THAT SAME DAY, HONEA SUMMONED
BURGAMY TO HIS OFFICE TO "COUNSEL" HIM WITH RESPECT TO THE ALLEGED
VERBAL ABUSE INCIDENT. BURGAMY AGAIN REQUESTED UNION REPRESENTATION AND
HONEA AGAIN REPEATED THAT HE DID NOT NEED IT. NEVERTHELESS, BURGAMY
LEFT THE OFFICE AND RETURNED WITH A UNION REPRESENTATIVE WHO REMAINED
WHILE HONEA READ A LETTER OF REPRIMAND WHICH EVENTUALLY WAS PLACED IN
BURGAMY'S PERSONNEL FILE. THIS MATTER PROMPTED THE FILING OF A
GRIEVANCE ON APRIL 18, 1972.
A SECOND INCIDENT OCCURRED ON OR ABOUT MAY 19, 1972, WHEN A DISPUTE
AROSE CONCERNING BURGAMY'S ARRIVING AT WORK IN CIVILIAN CLOTHES DESPITE
THE FACT THAT THERE WAS AN OUTSTANDING ORDER THAT MILITARY CLOTHES MUST
BE WORN. HE WAS SUMMONED TO THE OFFICE OF COLONEL MILLSON, HIS THIRD
LINE SUPERVISOR, FOR A "COUNSELLING SESSION" WITH RESPECT TO THIS
INCIDENT. BURGAMY ADVISED MILLSON THAT HE WANTED UNION REPRESENTATION,
BUT MILLSON STATED THAT HE DID NOT ALLOW REPRESENTATION AT "COUNSELLING
SESSIONS." AS A RESULT OF THIS MEETING, BURGAMY RECEIVED A LETTER OF
"ADVERSE PERSONNEL ACTION." THIS LETTER ALSO PROMPTED THE FILING OF A
GRIEVANCE. /4/
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE STATEMENT BY MAJOR
HONEA, DURING THE APRIL 1972, INCIDENT, THAT BURGAMY DID NOT NEED A
UNION REPRESENTATIVE, WOULD NATURALLY DISCOURAGE BURGAMY FROM EXERCISING
HIS RIGHT TO BE REPRESENTED AT THE "COUNSELLING SESSION" AND THEREBY
VIOLATED SECTION 19(A)(1) OF THE ORDER. THE ADMINISTRATIVE LAW JUDGE
ALSO CONCLUDED THAT THE REFUSAL BY COLONEL MILLSON TO ALLOW A UNION
REPRESENTATIVE TO BE PRESENT AT THE "COUNSELLING SESSION" IN MAY 1972,
WAS VIOLATIVE OF SECTION 19(A)(1) AND (6) OF THE ORDER. IN THIS REGARD,
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THIS PARTICULAR "COUNSELLING
SESSION" CONSTITUTED A "FORMAL DISCUSSION" WITHIN THE MEANING OF SECTION
10(E) OF THE ORDER. ADDITIONALLY, THE ADMINISTRATIVE LAW JUDGE
DETERMINED THAT THERE WAS A GENERAL POLICY AGAINST PERMITTING UNION
REPRESENTATIVES AT SUCH "COUNSELLING SESSIONS," AND THAT SUCH A POLICY
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER.
UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE, I REJECT THE
FOREGOING CONCLUSION OF THE ADMINISTRATIVE LAW JUDGE. IN MY VIEW, THE
EVIDENCE DOES NOT ESTABLISH THAT THE "COUNSELLING SESSIONS" INVOLVED
HEREIN WERE "FORMAL DISCUSSIONS" CONCERNING GRIEVANCES, PERSONNEL
POLICIES AND PRACTICES, OR WORKING CONDITIONS WITHIN THE MEANING OF
SECTION 10(E) OF THE ORDER. /5/ THUS, THE SESSIONS INVOLVED DID NOT
RELATE TO THE PROCESSING OF A GRIEVANCE. /6/ MOREOVER, THE MATTERS
DISCUSSED AT THE SESSIONS DID NOT INVOLVE GENERAL WORKING CONDITIONS AND
WORK PERFORMANCE. RATHER, THEY WERE RELATED, RESPECTIVELY, TO AN
INDIVIDUAL EMPLOYEE'S ALLEGED SHORT-COMINGS WITH RESPECT TO ALLEGED
ABUSIVE LANGUAGE USED TO HIS SUPERVISOR, AND TO THE SAME EMPLOYEE'S
ALLEGED FAILURE TO FOLLOW A UNIFORM REQUIREMENT ON THE BASE. IN MY
JUDGMENT, BOTH INCIDENTS HAD NO WIDER RAMIFICATIONS THAN BEING LIMITED
DISCUSSIONS AT A PARTICULAR TIME WITH AN INDIVIDUAL EMPLOYEE, BURGAMY,
CONCERNING PARTICULAR INCIDENTS AS TO HIM. /7/ ACCORDINGLY, AS THE TWO
INCIDENTS DID NOT CONSTITUTE "FORMAL DISCUSSIONS" IN WHICH THE EXCLUSIVE
REPRESENTATIVE WAS NOT ENTITLED TO BE REPRESENTED DURING THESE
"COUNSELLING SESSIONS," I FIND THAT THE DENIAL OF SUCH REPRESENTATION,
OF STATEMENTS TO THE EFFECT THAT SUCH REPRESENTATION WAS BEING DENIED,
DID NOT, IN THE CIRCUMSTANCES OF THIS CASE, INTERFERE WITH ANY RIGHTS
ACCORDED BURGAMY UNDER THE ORDER AND, THEREFORE, DID NOT CONSTITUTE A
VIOLATION OF SECTION 19(A)(1). /9/
II. FAILURE TO PERMIT MILITARY REENLISTMENT AND BURGAMY'S SUBSEQUENT
DISCHARGE FROM CIVILIAN EMPLOYMENT.
AS NOTED ABOVE, WHEN BURGAMY'S ENLISTMENT EXPIRED ON SEPTEMBER 25,
1972, HE WAS DENIED REENLISTMENT. WHEN PRESSED BY BURGAMY, FOR FURTHER
DETAILS AS TO THE REASON FOR SUCH DENIAL, COLONEL MILLSON ADVISED
BURGAMY THAT, AMONG OTHER THINGS, HE HAD FAILED TO COMPLETE HIS CAREER
DEVELOPMENT COURSE (CDC), WAS IMPERTINENT TO OFFICERS, FAILED TO WEAR
HIS UNIFORM PROPERLY, DID NOT RESPOND TO COUNSELLING, AND HIS
ARGUMENTATIVE MANNER WITH OTHER ENLISTED MEN WAS DISRUPTIVE. THE
EVIDENCE ESTABLISHES, HOWEVER, THAT AS OF AUGUST 1, 1972, BURGAMY WAS
RATED BY HIS IMMEDIATE SUPERVISOR AS DOING SATISFACTORY WORK DESPITE THE
FACT THAT ON SEPTEMBER 5, 1972, HE WAS GIVEN A DENIAL OF ENLISTMENT
LETTER BY HIS SUPERVISOR. AS NOTED ABOVE, BURGAMY'S CIVILIAN EMPLOYMENT
WAS TERMINATED BECAUSE OF HIS LOSS OF MILITARY MEMBERSHIP IN THE TEXAS
AIR NATIONAL GUARD.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE ALLEGED REASONS FOR NOT
PERMITTING BURGAMY'S MILITARY REENLISTMENT WERE PRETEXTUAL, AND THAT
BURGAMY'S CONDUCT IN FILING GRIEVANCES, AND SEEKING TO HAVE THE UNION
REPRESENT HIM, AS WELL AS HIS FREQUENT COMPLAINTS TO HIS SUPERVISOR
ABOUT WORKING CONDITIONS, AND HIS INSISTENCE THAT THE UNION BE PRESENT
WHILE HE PRESENTED SUCH COMPLAINTS DURING "COUNSELLING SESSIONS," WERE
THE FACTORS WHICH ACTUALLY MOTIVATED MILLSON INTO DETERMINING NOT TO
PERMIT BURGAMY'S MILITARY REENLISTMENT. UNDER THESE CIRCUMSTANCES, THE
ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT'S CONDUCT WAS
VIOLATIVE OF SECTION 19(A)(1) AND (2) OF THE ORDER, AND, IN THIS
CONNECTION, HE RECOMMENDED, AMONG OTHER THINGS, THAT THE RESPONDENT
OFFER BURGAMY REINSTATEMENT TO HIS CIVILIAN POSITION WITH BACK PAY AND
INTEREST. IN REACHING THIS DISPOSITION, THE ADMINISTRATIVE LAW JUDGE
REJECTED THE RESPONDENT'S CONTENTION THAT BURGAMY'S DISCHARGE AS A
CIVILIAN EMPLOYEE, WHICH WAS REQUIRED BY LAW BECAUSE HE WAS NO LONGER A
MEMBER OF THE TEXAS AIR NATIONAL GUARD, WAS NOT REVIEWABLE BY THE
ASSISTANT SECRETARY. THUS, HE NOTED THAT THE ASSISTANT SECRETARY HAS
FOUND IN BOTH REPRESENTATION AND UNFAIR LABOR PRACTICE SITUATIONS THAT
THE EXECUTIVE ORDER APPLIES TO CIVILIAN EMPLOYEES OF THE NATIONAL GUARD
AND PROTECTS THE RIGHTS OF SUCH EMPLOYEES. THE ADMINISTRATIVE LAW JUDGE
ALSO REJECTED THE RESPONDENT'S CONTENTION THAT THERE WAS AN APPEALS
PROCEDURE AVAILABLE TO BURGAMY CONCERNING HIS DISCHARGE WHICH HE
UTILIZED AND THAT, THEREFORE, SECTION 19(D) OF THE EXECUTIVE ORDER WAS
CONTROLLING. IN THIS CONNECTION, THE ADMINISTRATIVE LAW JUDGE CONCLUDED
THAT SECTION 1104 OF THE TEXAS CODE OF MILITARY JUSTICE /10/ , UNDER
WHICH BURGAMY PROCESSED HIS APPEAL FROM THE DENIAL OF HIS MILITARY
REENLISTMENT, DID NOT PERMIT BURGAMY TO SEEK CONSIDERATION OF THE ISSUE
WHETHER HE WAS DENIED REENLISTMENT IN THE TEXAS AIR NATIONAL GUARD
BECAUSE HE ENGAGED IN ACTIVITY PROTECTED BY THE ORDER. ACCORDINGLY, THE
ASSISTANT SECRETARY WITH RESPECT TO THE ISSUE WHETHER THERE HAD BEEN
DISCRIMINATION IN THE DENIAL OF BURGAMY'S REENLISTMENT.
UNDER THE CIRCUMSTANCES OF THIS CASE, I REJECT THESE FINDINGS OF THE
ADMINISTRATIVE LAW JUDGE. THUS, THE RECORD REVEALS THAT BURGAMY WAS
AFFORDED THE OPPORTUNITY TO AND DID, IN FACT, UTILIZE THE TEXAS AIR
NATIONAL GUARD'S APPEALS PROCEDURE, INCLUDING UTILIZING THE FINAL STEP
OF SUCH PROCEDURE-- AN APPEAL TO THE ADJUTANT GENERAL OF THE TEXAS AIR
NATIONAL GUARD. MOREOVER, CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, I
FIND THAT THERE IS NO EVIDENCE THAT BURGAMY WAS PREVENTED FROM RAISING
UNDER THE APPEALS PROCEDURE THE ISSUE WHETHER HE WAS DENIED REENLISTMENT
FOR DISCRIMINATORY OR OTHER IMPROPER REASONS UNDER THE ORDER. /11/ THE
EVIDENCE ESTABLISHES THAT BURGAMY HAD EVERY OPPORTUNITY TO RAISE THE
ISSUE OF ALLEGED DISCRIMINATION TO THE ADJUTANT GENERAL, BUT CHOSE NOT
TO DO SO. IN THIS REGARD, IN A LETTER DATED SEPTEMBER 9, 1972,
ACKNOWLEDGING BURGAMY'S REQUEST FOR REVIEW OF THE DENIAL OF HIS
REENLISTMENT, THE ADJUTANT GENERAL STATED "SHOULD YOU DESIRE TO SUBMIT
ANY WRITTEN STATEMENT, EVIDENCE IN WRITING OR A WRITTEN BRIEF TO SUPPORT
YOUR CONTENTION, PLEASE MAIL THEM TO ME NO LATER THAN 18 SEPTEMBER
1972." /12/ TO THIS, BURGAMY MERELY REPLIED THAT, "I RESPECTFULLY
REQUEST THAT MYSELF AND MY REPRESENTATIVES BE PRESENT DURING YOUR
PERSONAL INVESTIGATION." AT NO TIME DID HE AVAIL HIMSELF OF THE
OPPORTUNITY TO RAISE THE ISSUE OF DISCRIMINATION, DESPITE THE FACT THAT
CLEARLY HE WAS GIVEN AN OPPORTUNITY TO DO SO, AND THE FINAL REJECTION OF
HIS APPEAL BY THE ADJUTANT GENERAL STATED THAT ALL PERTINENT INFORMATION
IN BURGAMY'S FILE HAD BEEN REVIEWED AND THAT THE DECISION NOT TO
REENLIST HIM WAS SUSTAINED.
UNDER ALL OF THESE CIRCUMSTANCES, I FIND THAT THERE WAS AN APPEALS
PROCEDURE UNDER WHICH BURGAMY COULD APPEAL THE DENIAL OF HIS
REENLISTMENT; THAT THE APPEALS PROCEDURE PERMITTED HIM TO RAISE THE
ISSUE WHETHER THE DENIAL WAS DISCRIMINATORILY MOTIVATED AND IN VIOLATION
OF RIGHTS PROTECTED BY THE ORDER; AND THAT BURGAMY, WHILE AVAILING
HIMSELF OF THE APPEALS PROCEDURE, FAILED TO RAISE THE ISSUE OF
DISCRIMINATORY MOTIVATION IN PROCESSING HIS APPEAL. ACCORDINGLY, I
CONCLUDE THAT THE ISSUE HEREIN COULD PROPERLY BE RAISED UNDER AN APPEALS
PROCEDURE AND THAT, UNDER SECTION 19(D) OF THE ORDER, I AM PRECLUDED
FROM DETERMINING, IN THE CONTEXT OF AN UNFAIR LABOR PRACTICE PROCEEDING,
WHETHER BURGAMY WAS IN FACT, DENIED REENLISTMENT FOR DISCRIMINATORY
REASONS. /13/
HAVING FOUND THAT THE RESPONDENT DID NOT VIOLATE SECTION 19(A)(1) AND
(6) OF THE ORDER IN DENYING BURGAMY REPRESENTATION BY HIS EXCLUSIVE
REPRESENTATIVE AT CERTAIN "COUNSELLING SESSIONS," AND THAT SECTION 19(D)
IS DISPOSITIVE WITH RESPECT TO THE QUESTION WHETHER BURGAMY'S FAILURE TO
SECURE ENLISTMENT WAS DISCRIMINATORILY MOTIVATED, I SHALL ORDER THAT THE
COMPLAINT HEREIN BE DISMISSED IN ITS ENTIRETY.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 63-4203(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JANUARY 8, 1974
/1/ RESPONDENT'S REQUEST FOR AN EXTENSION OF TIME IN WHICH TO FILE
EXCEPTIONS WAS UNTIMELY FILED, AND, THEREFORE, WAS DENIED.
/2/ IT WAS NOTED THAT 32 U.S.CODE, SECTION 809(3)(5) PROVIDES: "A
RIGHT OF APPEAL WHICH MAY EXIST SHALL NOT EXTEND BEYOND THE ADJUTANT
GENERAL OF THE JURISDICTION CONCERNED."
/3/ THIS TERM WAS NEVER PRECISELY DEFINED BUT, APPARENTLY, IT WAS
USED BY THE RESPONDENT TO DENOTE MEETINGS BETWEEN AN EMPLOYEE AND HIS
SUPERVISOR IN WHICH ANY RANGE OF SUBJECTS COULD BE DISCUSSED, INCLUDING
PROPOSED DISCIPLINARY ACTIONS.
/4/ THE ADMINISTRATIVE LAW JUDGE FOUND IN CONNECTION WITH THIS
GRIEVANCE THAT BURGAMY WAS NOT DENIED UNION REPRESENTATION IN HIS USE OF
THE INFORMAL GRIEVANCE PROCEDURE OR IN THE SUBSEQUENT PROCESSING OF HIS
FORMAL GRIEVANCE.
/5/ SECTION 10(E) PROVIDES THAT AN EXCLUSIVE BARGAINING
REPRESENTATIVE "SHALL BE GIVEN THE OPPORTUNITY TO BE REPRESENTED AT
FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR EMPLOYEE
REPRESENTATIVES CONCERNING GRIEVANCES, PERSONNEL POLICIES AND PRACTICES,
OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN
THE UNIT."
/6/ INDEED, THE PARTICULAR GRIEVANCES BURGAMY FILED WERE FILED AFTER
THE SESSIONS OCCURRED.
/7/ COMPARE U.S. DEPARTMENT OF THE ARMY, TRANSPORTATION MOTOR POOL,
FORT WAINWRIGHT, ALASKA, A/SLMR NO. 278, IN WHICH IT WAS FOUND THAT
DISCUSSION INVOLVED CONSTITUTED A "FORMAL DISCUSSION" WITHIN THE MEANING
OF SECTION 10(E) OF THE ORDER. IN THIS REGARD, THE CHIEF ADMINISTRATIVE
LAW JUDGE NOTED THAT THE RESOLUTION OF THE GRIEVANCE WOULD HAVE A
GENERAL IMPACT ON ALL EMPLOYEES IN THE UNIT.
/8/ I REJECT THE ADMINISTRATIVE LAW JUDGE'S FINDING AT FOOTNOTE 23 OF
HIS REPORT AND RECOMMENDATIONS THAT EVEN IF THESE COUNSELLING SESSIONS
WERE NOT CONSIDERED TO BE "FORMAL DISCUSSIONS" WITHIN THE MEANING OF
SECTION 10(E), IT IS NECESSARY, IN ORDER TO EFFECTUATE THE PURPOSES OF
THE ORDER, THAT EMPLOYEES BE ENTITLED TO BE REPRESENTED BY THEIR
EXCLUSIVE REPRESENTATIVE IN MEETINGS OF THIS TYPE. IN MY VIEW, AN
INDIVIDUAL EMPLOYEE IS NOT ENTITLED IN EVERY INSTANCE TO HAVE HIS
EXCLUSIVE REPRESENTATIVE PRESENT BECAUSE OF A CONCERN THAT A MEETING MAY
ULTIMATELY LEAD TO A GRIEVANCE OR "ADVERSE ACTION."
/9/ HAD THESE MEETINGS INVOLVED GRIEVANCES, IT IS CLEAR BURGAMY WOULD
HAVE BEEN PERMITTED TO HAVE REPRESENTATION BY HIS EXCLUSIVE
REPRESENTATIVE. THE RECORD REVEALS THAT ORDINARILY THE RESPONDENT WAS
VERY CAREFUL IN PERMITTING REPRESENTATION BY THE EXCLUSIVE
REPRESENTATIVE WHENEVER A GRIEVANCE HAD BEEN FILED. IN THIS CONNECTION,
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE ORDER WAS NOT VIOLATED AS A
RESULT OF HONEA'S REFUSAL TO PERMIT BURGAMY TO BE REPRESENTED AT THE
MEETING CONCERNING JOB CHANGES BECAUSE THIS DENIAL WAS REMEDIED AS SOON
AS HONEA DISCOVERED THAT A GRIEVANCE HAD, IN FACT, BEEN FILED.
/10/ SECTION 1104 PROVIDES "ANY MEMBER OF THE STATE MILITARY FORCES
WHO BELIEVES HIMSELF WRONGED BY HIS COMMANDING OFFICER, AND WHO UPON DUE
APPLICATION TO THAT COMMANDING OFFICER, IS REFUSED REDRESS, MAY COMPLAIN
TO ANY SUPERIOR COMMISSIONED OFFICER, WHO SHALL FORWARD THE COMPLAINT TO
THE GOVERNOR OR ADJUTANT GENERAL."
/11/ CONTRARY TO THE FINDING OF THE ADMINISTRATIVE LAW JUDGE, IN
UNITED STATES POSTAL SERVICE, BERWYN POST OFFICE, ILLINOIS, A/SLMR NO.
272, IT WAS NOT FOUND THAT THE APPEALS PROCEDURE, ON ITS FACE, PERMITTED
THE UNFAIR LABOR PRACTICE ISSUES TO BE RAISED. RATHER, IN BERWYN, IT
WAS FOUND THAT UNDER THE ADVERSE ACTION APPEALS PROCEDURE OF THE
AGREEMENT THEREIN, OTHER TYPES OF DISCRIMINATION, SUCH AS THAT ALLEGED
IN THE COMPLAINT, I.E., DISCRIMINATION BASED ON UNION ACTIVITIES, WERE
NOT CLEARLY PRECLUDED FROM CONSIDERATION.
/12/ SECTION 5(A)(3) OF THE TEXAS AIR NATIONAL GUARD GRIEVANCE
PROCEDURE PROVIDES: "5. GRIEVANCE COVERAGE . . . A. GRIEVANCES
COVERED UNDER THIS SYSTEM INCLUDE, BUT ARE NOT STRICTLY LIMITED TO, THE
FOLLOWING: (3) ALLEGED VIOLATIONS . . . OF SECTION 19(A)(1), (2) AND
(4) OF EXECUTIVE ORDER 11491 . . ."
/13/ SECTION 19(D) OF THE ORDER PROVIDES, IN PERTINENT PART, THAT,
"ISSUES WHICH CAN PROPERLY BE RAISED UNDER AN APPEALS PROCEDURE MAY NOT
BE RAISED UNDER THIS SECTION . . . "
DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
TEXAS AIR NATIONAL GUARD
AND
TEXAS AIR NATIONAL GUARD COUNCIL OF
LOCALS, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
DAVID W. PACE, ESQ., AND
FRANK COOKSEY, ESQ., OFFICE OF THE
ATTORNEY GENERAL OF TEXAS, BOX 12548
CAPITOL STATION, AUSTIN, TEXAS 78711,
ON BEHALF OF RESPONDENT.
DOLPH DAVID SAND, ESQ., AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, 1325 MASSACHUSETTS
AVENUE, N.W., WASHINGTON, D.C. 20025
FOR COMPLAINANT.
BEFORE: SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
PURSUANT TO A FIRST AMENDED COMPLAINT FILED ON NOVEMBER 27, 1972,
UNDER EXECUTIVE ORDER 11491, AS AMENDED, (HEREINAFTER CALLED THE ORDER)
BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, TEXAS AIR NATIONAL GUARD
COUNCIL OF LOCALS /1/ AGAINST TEXAS AIR NATIONAL GUARD (HEREINAFTER
CALLED VARIOUSLY THE RESPONDENT, THE TEXAS AIR NATIONAL GUARD AND THE
ACTIVITY), A NOTICE OF HEARING ON COMPLAINT WAS ISSUED BY THE ACTING
REGIONAL ADMINISTRATOR FOR THE KANSAS CITY REGION ON JANUARY 15, 1973.
A HEARING WAS HELD IN THIS MATTER ON MARCH 20 AND 21, 1973 IN DALLAS,
TEXAS. ALL PARTIES WERE REPRESENTED AND AFFORDED FULL OPPORTUNITY TO BE
HEARD AND TO INTRODUCE RELEVANT EVIDENCE ON THE ISSUES INVOLVED. UPON
THE CONCLUSION OF THE TAKING OF TESTIMONY BOTH PARTIES MADE ORAL
ARGUMENT ON THE RECORD AND SUBMITTED BRIEFS. /2/
UPON THE ENTIRE RECORD /3/ HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND UPON THE RELEVANT EVIDENCE ADDUCED AT
THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS:
1. BACKGROUND
DURING DECEMBER OF 1969, AFGE LOCAL 3,000 WAS RECOGNIZED AS THE
COLLECTIVE BARGAINING REPRESENTATIVE OF THE CIVILIAN EMPLOYEES OF THE
TEXAS AIR NATIONAL GUARD AT HENSLEY FIELD. IN JUNE OF 1971 THE TEXAS
AIR NATIONAL GUARD COUNCIL OF LOCALS, AFGE, BECAME THE COLLECTIVE
BARGAINING REPRESENTATIVE OF ALL CIVILIAN EMPLOYEES OF THE TEXAS AIR
NATIONAL GUARD.
MR. JAMES A. BURGAMY ENLISTED IN THE TEXAS AIR NATIONAL GUARD ON
SEPTEMBER 26, 1966, AND AT SOMETIME SUBSEQUENT BECAME A CIVILIAN
EMPLOYEE OF THE TEXAS AIR NATIONAL GUARD AS AN AIR FORCE TECHNICIAN. IN
APPROXIMATELY 1969 MR. BURGAMY JOINED, IN HIS CIVILIAN CAPACITY, THE
136TH SUPPLY SQUADRON, WHOSE COMMANDER WAS COLONEL RICHARD A. MILLSON.
DURING 1971 MR. BURGAMY WAS, IN HIS MILITARY POSITION, UNDERGOING
"BOOMER TRAINING" /4/ AS PART OF THE 181ST AIR REFUELING SQUADRON. MR.
BURGAMY WAS UNABLE TO SUCCESSFULLY COMPLETE HIS TRAINING AND WAS
TRANSFERRED BRIEFLY TO A CIVILIAN ENGINEERING UNIT. IN NOVEMBER 1971,
HE WAS TRANSFERRED IN HIS MILITARY CAPACITY TO THE 136TH SUPPLY
SQUADRON. COL. MILLSON WAS MILITARY AS WELL AS CIVILIAN, COMMANDER OF
THE 136TH SUPPLY SQUADRON. MR. BURGAMY HAD ATTAINED THE MILITARY RANK
OF STAFF SARGENT, (E-5). WHILE WORKING IN THE 136TH SQUADRON IN HIS
CIVILIAN CAPACITY MR. BURGAMY HELD TWO POSITIONS, FIRST FILING TELEPHONE
REQUESTS FOR PARTS FROM THE OTHER VARIOUS UNITS AND THEN IN THE
WAREHOUSE.
MR. BURGAMY'S MILITARY ENLISTMENT IN THE TEXAS AIR NATIONAL GUARD
EXPIRED ON SEPTEMBER 25, 1972 AND HE WAS DENIED REENLISTMENT. HE WAS
NOTIFIED BY LETTER OF AUGUST 24, 1972, THAT AS A RESULT OF HIS IMPENDING
LOSS OF MILITARY MEMBERSHIP IN THE NATIONAL GUARD, HIS CIVILIAN
EMPLOYMENT WOULD BE TERMINATED ON SEPTEMBER 30, 1972 AND THAT "THERE
WERE NO ADMINISTRATIVE APPEAL RIGHTS TO THIS TERMINATION ACTION."
2. MR. BURGAMY'S CIVILIAN EMPLOYMENT /5/
ALTHOUGH THERE WAS SOME TESTIMONY THAT MR. BURGAMY'S CIVILIAN WORK
STARTED TO DETERIORATE BETWEEN AUGUST AND NOVEMBER 1971, WHEN HE JOINED
THE 136TH SUPPLY SQUADRON IN A MILITARY CAPACITY, HE WAS RATED BY HIS
SUPERVISORS ON HIS CIVIL SERVICE COMMISSION ANNUAL RATING FORM, AS
PERFORMING HIS CIVILIAN DUTIES SATISFACTORILY FOR THE PERIOD OF AUGUST
1971 THRU AUGUST 1972. HIS POOR WORK WAS NEVER GIVEN A REASON FOR HIS
SUBSEQUENT DISCHARGE NOR WAS THERE ANY CREDITABLE EVIDENCE SUBMITTED
THAT HE WAS EVER ADVISED BY HIS SUPERVISORS THAT HIS WORK WAS OF SUCH A
POOR QUALITY OR QUANTITY THAT HE WAS RISKING DISCHARGE IF HE DID NOT
IMPROVE.
COMMENCING ABOUT JULY 1971 UNTIL THE DATE OF HIS TERMINATION MR.
BURGAMY DID FILE A NUMBER OF GRIEVANCES AND HAD A NUMBER OF VARIOUS
TYPES OF MEETINGS WITH HIS SUPERVISOR CONCERNING THE GRIEVANCES,
COMPLAINTS CONCERNING HIS WORKING CONDITIONS AND COMPLAINTS THAT HIS
SUPERVISORS HAD ABOUT HIM. ALTHOUGH THE RECORD IS QUITE CONFUSED AND
NOT CLEAR AS TO PRECISELY HOW MANY MEETINGS THERE WERE AND AS TO WHAT
OCCURRED AT EACH MEETING THE RECORD DOES ESTABLISH THE FOLLOWING:
A. SUMMER 1971 GRIEVANCE
DURING THE SUMMER OF 1971 MR. BURGAMY REQUESTED LEAVE FROM HIS
CIVILIAN JOB SO THAT HE COULD ATTEND HIS SUMMER MILITARY TRAINING.
DURING THIS ATTEMPT TO SECURE THE LEAVE THERE IS NO EVIDENCE THAT ANY
SUPERIOR DENIED MR. BURGAMY UNION REPRESENTATION. MR. BURGAMY THEN
FOLLOWED THE GRIEVANCE PROCEDURE /6/ CONCERNING HIS FAILURE TO SECURE
THE REQUESTED LEAVE. THERE IS NO EVIDENCE THAT DURING THE PROCESSING OF
THE GRIEVANCE MR. BURGAMY WAS DENIED UNION REPRESENTATION UNTIL IT
REACHED THE LEVEL OF HIS 3RD LINE SUPERVISOR, COL. MILLSON. WITH
RESPECT TO THIS MEETING, MR. BURGAMY'S TESTIMONY IS SOMEWHAT CONFUSED.
HE TESTIFIED THAT HE ARRIVED AT COL. MILLSON'S OFFICE WITH THE UNION
REPRESENTATIVE AND THAT COL. MILLSON TOLD THE UNION REPRESENTATIVE TO
LEAVE. MR. BURGAMY DIDN'T RECALL WHETHER THE UNION REPRESENTATIVE LEFT
/7/ OR REMAINED. COL. MILLSON TESTIFIED THAT ALTHOUGH THERE WAS A
DISCUSSION AS TO WHETHER OR NOT THERE WAS A GRIEVANCE, THE UNION
REPRESENTATIVE WAS NOT REQUESTED TO AND DID NOT LEAVE. /8/ THIS
GRIEVANCE WAS ULTIMATELY ADJUSTED INFORMALLY.
B. GRIEVANCE DATED APRIL 18, 1972
A DISPUTE AROSE DURING APRIL, 1972 CONCERNING CERTAIN CHANGES IN MR.
BURGAMY'S JOB. MAJOR FLOYD HONEA, MR. BURGAMY'S SECOND LINE SUPERVISOR,
TESTIFIED THAT HE ASKED MR. BURGAMY IF HE WANTED TO COME TO HIS OFFICE
TO DISCUSS THE JOB CHANGES. MR. BURGAMY ALLEGEDLY CAME TO HIS OFFICE
BUT WANTED A UNION REPRESENTATIVE. MAJ. HONEA TESTIFIED IN AGREEMENT
WITH MR. BURGAMY, THAT HE TOLD MR. BURGAMY THAT HE DIDN'T NEED THE
UNION REPRESENTATIVE AND THE UNION REPRESENTATIVE LEFT. MR. BURGAMY
STATES THAT HE WAS DENIED UNION REPRESENTATION BY HONEA AT THIS STAGE OF
THE GRIEVANCE PROCEDURE. /9/ MAJ. HONEA STATES THAT MR. BURGAMY THEN,
IN A LOUD VOICE ABUSED HIM CONCERNING HIS REFUSAL TO ALLOW UNION
REPRESENTATION.
LATER THE SAME DAY MAJ. HONEA SENT FOR MR. BURGAMY IN ORDER TO
"COUNSEL" HIM CONCERNING THE ABUSIVE LANGUAGE INCIDENT. MR. BURGAMY
REPORTED TO MAJ. HONEA'S OFFICE AND STATED THAT WE WANTED A UNION
REPRESENTATIVE PRESENT. MAJ. HONEA ADVISED MR. BURGAMY THAT HE DID NOT
NEED A UNION REPRESENTATIVE. MR. BURGAMY LEFT AND RETURNED WITH THE
SHOP STEWARD. THE UNION REPRESENTATIVE REMAINED WHILE MAJOR HONEA READ
TO THEM AN ADVERSE LETTER HE PROPOSED TO PLACE IN MR. BURGAMY'S
PERSONNEL FILE. THEY THEN DISCUSSED THIS PROPOSED ACTION /10/ .
MR. BURGAMY TESTIFIED THAT HE WAS DENIED A UNION REPRESENTATIVE AT A
MAY 3, MEETING WITH COL. MILLSON AT THE THIRD STEP OF THE GRIEVANCE
PROCEDURE. COL. MILLSON'S REPORT OF THAT MEETING INDICATES THAT UNION
REPRESENTATIVES WERE PRESENT AND THAT AMONG OTHER ITEMS, COL. MILLSON'S
DISAPPROVAL OF MR. BURGAMY'S INSTANCE UPON UNION REPRESENTATION AT
COUNSELLING SESSIONS WAS DISCUSSED. THE REPORT ALSO INDICATED THAT COL.
MILLSON REFERRED TO THE PROCESSING OF THESE GRIEVANCES BY MR. BURGAMY
AND THE UNION AS HARASSMENT OF MANAGEMENT. /11/ THE GRIEVANCE WAS THEN
APPEALED TO THE ADJUTANT GENERAL OF THE TEXAS ANG, WHO DID NOT RULE UPON
IT BECAUSE OF MR. BURGAMY'S IMPENDING SEPARATION.
C. JUNE 5, 1972 GRIEVANCE
ON OR ABOUT MAY 19, 1972 A DISPUTE AROSE CONCERNING AN INCIDENT WHEN
MR. BURGAMY CAME TO WORK IN CIVILIAN CLOTHES INSTEAD OF IN UNIFORM AS
REQUIRED BY THE BASE COMMANDER. DURING THE LATTER PART OF MAY, MR.
BURGAMY WAS CALLED INTO COL. MILLSON'S OFFICE FOR A COUNSELLING SESSION
CONCERNING BURGAMY'S APPEARING IN CIVILIAN CLOTHES. MR. BURGAMY,
FEARING A REPRIMAND, REQUESTED UNION REPRESENTATION AT THE COUNSELLING
SESSION. MR. BURGAMY STATES THAT HE WAS TOLD BY COL. MILLSON THAT HE
DID NOT ALLOW UNION REPRESENTATION AT COUNSELLING SESSIONS. MR.
BURGAMY STATES HE WAS UNREPRESENTED BY THE UNION AT THIS SESSION. COL.
MILLSON QUESTIONED MR. BURGAMY ABOUT BEING OUT OF UNIFORM. THIS MEETING
RESULTED IN MR. BURGAMY RECEIVING A LETTER OF "ADVERSE PERSONNEL ACTION"
DATED JUNE 1, 1972. COL. MILLSON GENERALLY DENIED THAT HE EVER REFUSED
TO ALLOW MR. BURGAMY TO HAVE UNION REPRESENTATION. HOWEVER, IN LIGHT OF
HIS POSITION AS SET OUT IN HIS MEMORANDUM OF THE MAY 3 GRIEVANCE
MEETING, DISCUSSED ABOVE, I CREDIT MR. BURGAMY'S VERSION OF THIS
MEETING.
MR. BURGAMY THEN UTILIZED THE INFORMAL GRIEVANCE PROCEDURE AND WAS
NOT DENIED UNION REPRESENTATION DURING THESE INFORMAL PROCEDURES. THE
FORMAL GRIEVANCE PROCEDURES WERE THEN INITIATED ON JUNE 5, 1972. MR.
BURGAMY'S TESTIMONY IS SOMEWHAT CONFUSING WITH RESPECT TO WHETHER HE WAS
DENIED UNION REPRESENTATION AT THE 1ST LEVEL. ALL AGREE THAT HE HAD
UNION REPRESENTATION AT THE 2ND LEVEL. MR. BURGAMY TESTIFIED THAT AT
THE 3RD LEVEL, BEFORE COL. MILLSON, HE CAME WITH HIS SHOP STEWARD BUT
THAT COL. MILLSON ASKED THE SHOP STEWARD TO LEAVE. HE DID NOT RECALL
WHETHER THE SHOP STEWARD LEFT AND COL. MILLSON'S TESTIMONY AND HIS
REPORT OF THAT MEETING SHOWED TWO UNION REPRESENTATIVES WERE PRESENT.
/12/ COL. MILLSON TESTIFIED THAT HE NEVER DENIED MR. BURGAMY UNION
REPRESENTATION AT ANY GRIEVANCE MEETING. I FIND THAT THE WEIGHT OF THE
EVIDENCE ESTABLISHES THAT MR. BURGAMY WAS NOT DENIED UNION
REPRESENTATION AT THIS MEETING. /13/ COL. MILLSON'S REPORT OF THE
GRIEVANCE MEETING AGAIN REFERRED TO THE FILING OF THIS GRIEVANCE AS
HARASSMENT.
THIS GRIEVANCE AND THE VALIDITY OF THE JUNE 1, ADVERSE ACTION LETTER
WAS NOT RULED UPON BY THE ADJUTANT GENERAL'S OFFICE BECAUSE OF MR.
BURGAMY'S PENDING TERMINATION.
D. JULY 31, 1972 GRIEVANCE
AN INFORMAL GRIEVANCE WAS INSTITUTED CONCERNING ALLEGED ABUSE OF SICK
LEAVE BY MR. BURGAMY. THIS WAS HANDLED INFORMALLY AND THERE IS NO
ALLEGATION THAT DURING THIS MATTER MR. BURGAMY WAS DENIED UNION
REPRESENTATION.
E. OTHER ASPECTS OF MR. BURGAMY'S CIVILIAN EMPLOYMENT
MR. BURGAMY, AS INDICATED ABOVE, FILED A NUMBER OF GRIEVANCES AND
REQUESTED UNION REPRESENTATION IN THEM ALL. SINCE APRIL 1972 HE FILED
MORE FORMAL GRIEVANCES THAN ANY OTHER UNION MEMBER AT HENSLEY FIELD.
/14/ SIMILARLY THE EVIDENCE ESTABLISHED MR. BURGAMY HAD A HABIT OF
STOPPING BY COL. MILLSON'S OFFICE, OFTEN WITH A UNION REPRESENTATIVE TO
DISCUSS VARIOUS WORK RELATED MATTERS. COL. MILLSON TESTIFIED THAT HE
CONSIDERED MR. BURGAMY TO BE DISSATISFIED WITH EVERYTHING AND A
TROUBLEMAKER; IT WAS CLEAR FROM MAJ. HONEA'S TESTIMONY THAT HE HELD THE
SAME OPINION OF MR. BURGAMY. MR. BURGAMY WAS TERMINATED AS OF SEPTEMBER
30, 1972 BECAUSE HIS MILITARY ENLISTMENT IN THE TEXAS AIR NATIONAL GUARD
HAD TERMINATED.
3. MILITARY CAREER
MR. BURGAMY JOINED THE 136TH SUPPLY SQUADRON IN HIS MILITARY CAPACITY
IN NOVEMBER 1971 AFTER HE HAD FAILED TO COMPLETE HIS "BOOMER TRAINING"
AND AFTER HE HAD BEEN UNABLE TO PERMANENTLY TRANSFER INTO AN ENGINEERING
UNIT. HE WAS ADVISED BY COL. MILLSON, WHO WAS THE COMMANDER OF THE
136TH AND THEREFORE HIS MILITARY SUPERIOR, BOTH BY LETTER AND ORALLY,
CONCERNING THE APPROPRIATE UNIFORM FOR HIS FIRST UTA. /15/ MR. BURGAMY
ATTENDED THE FIRST UTA IN THE IMPROPER UNIFORM AND WAS MADE TO GO HOME
AND CHANGE HIS UNIFORM. /16/
A. CDC TRAINING COURSE
COL. MILLSON ADVISED MR. BURGAMY THAT HE WAS REQUIRED TO ENROLL IN
AND COMPLETE A SUPPLY CDC COURSE /17/ WHEN MR. BURGAMY FIRST JOINED THE
136TH SUPPLY SQUADRON. COL. MILLSON TESTIFIED THAT SOON THEREAFTER HE
LEARNED THAT MR. BURGAMY HAD NOT SIGNED UP FOR THE COURSE SO IN JANUARY
1972 HE AGAIN INSTRUCTED MR. BURGAMY OF THE CDC REQUIREMENT. AGAIN COL.
MILLSON TESTIFIED, HE LEARNED IN FEBRUARY THAT MR. BURGAMY HAD NOT YET
ENROLLED IN THE COURSE. COL. MILLSON FURTHER TESTIFIED THAT ON A
NUMBER OF OCCASIONS HE "COUNSELLED" AND ADVISED MR. BURGAMY THAT HE WAS
REQUIRED TO COMPLETE THE CDC AND FINALLY THAT SUCH COMPLETION WAS
ESSENTIAL IF HE WISHED TO REMAIN IN THE UNIT. MR. BURGAMY DID NOT
COMPLETE ANY VOLUME OF THE COURSE.
MR. BURGAMY ADMITS THAT HE WAS ASKED TO TAKE THE CDC AND THAT HE DID
NOT COMPLETE IT. HE DENIED THAT HE WAS EVER "COUNSELLED" ON HIS FAILURE
TO COMPLETE THE COURSE. MR. BURGAMY CONTENDS HE DID NOT KNOW HOW LONG
HE HAD TO FINISH THE CDC. ALTHOUGH HE DID APPARENTLY SIGN A DOCUMENT ON
DECEMBER 6, 1971 ACKNOWLEDGING THAT HE HAD TO COMPLETE THE COURSE WITHIN
6 MOS. OF DECEMBER 9, 1971, THERE WAS APPARENTLY SOME CONFUSION BECAUSE
THE CDC HE RECEIVED IN THE MAIL GAVE HIM A LONGER PERIOD OF TIME TO
COMPLETE THE COURSE.
COL. MILLSON DETERMINED THAT MR. BURGAMY WOULD NOT BE REENLISTED WHEN
HIS ENLISTMENT IN THE NATIONAL GUARD EXPIRED ON SEPTEMBER 25, 1972. AS
A RESULT MR. BURGAMY FIRST RECEIVED A LETTER DATED AUGUST 24TH ADVISING
HIM OF THIS. MR. BURGAMY REQUESTED MORE DETAIL AND HE RECEIVED A LETTER
DATED SEPTEMBER 5, 1972 FROM COL. MILLSON WHICH STATED THAT MR. BURGAMY
WAS NOT BEING REENLISTED BECAUSE HE HAD NOT COMPLETED A SINGLE VOLUME OF
HIS CDC DESPITE THE FACT THAT HE HAD IN WRITING ACKNOWLEDGED IT WAS TO
BE COMPLETED NOT LATER THAN MAY 1972. THE LETTER FURTHER STATES THAT
MR. BURGAMY HAD BEEN "COUNSELLED" "MANY TIMES" BY HIS TRAINER, UNIT
TRAINING SUPERVISOR AND UNIT TRAINING OFFICERS REGARDING THIS
REQUIREMENT OF COMPLETING THE TRAINING COURSE /18/ AS WELL AS BY COL.
MILLSON. THE LETTER WENT ON TO STATE: "IN WEIGHING THE OBVIOUS NEED
FOR FURTHER TRAINING, YOUR FAILURE TO RESPOND TO COUNSELLING AND YOUR
IMPERTINENT MANNER IN DEALING WITH SUPERIOR OFFICERS AND AIRMEN AGAINST
YOUR POTENTIAL VALUE TO THE UNIT, IT WAS DETERMINED NOT TO BE IN THE
BEST INTEREST OF THE UNIT TO APPROVE YOUR ENLISTMENT."
MR. CLYDE CLAY WHO WAS AN AIR TECHNICIAN FOR 18 YEARS AND A MEMBER OF
THE TEXAS AIR NATIONAL GUARD AT HENSLEY FIELD FOR 19 YEARS TESTIFIED
THAT HE NEVER COMPLETED A CDC IN HIS PARTICULAR JOB CAREER FIELD. MR.
BURGAMY HAD COMPLETED A CDC, INCLUDING ONE IN THE SUPPLY FIELD. MR.
CLAY AND MR. JAMES NICKLAS, AN AIR TECHNICIAN AND MEMBER OF THE TEXAS
AIR NATIONAL GUARD FOR 17 YEARS STATED THAT THEY DID NOT KNOW OF ANYONE
BEING DENIED REENLISTMENT FOR NOT COMPLETING A CDC.
B. OTHER MILITARY "INCIDENTS"
SGT. CHARLES W. DAVIS TESTIFIED THAT HE WAS THE FIRST SARGENT OF THE
136TH SUPPLY SQUADRON AND MR. BURGAMY'S SUPERIOR AND THAT ON ONE
OCCASION HE CALLED MR. BURGAMY ASIDE AND REPRIMANDED HIM FOR WEARING HIS
HAT IMPROPERLY. HE STATES THAT THEY HAD AN ALTERCATION AND THAT MR.
BURGAMY'S RESPONSES WERE IMPERTINENT AND IMPROPER. HE DREW UP CHARGES
ON THIS MATTER, BUT HIS THEN IMMEDIATE SUPERIOR, LIEUTENANT ROBERTS,
TORE THEM UP AND WOULD NOT PROCESS THEM. SGT. DAVIS STATES THAT MR.
BURGAMY WAS A BAD INFLUENCE ON THE MEN THAT WORKED WITH HIM AND MADE
THEM UNHAPPY AND DISSATISFIED. ON ANOTHER OCCASION SGT. DAVIS AND MR.
BURGAMY HAD WORDS BECAUSE MR. BURGAMY PROTESTED SGT. DAVIS' USE OF
PROFANE LANGUAGE AFTER HE, SGT. DAVIS, HAD RECEIVED AN INJECTION.
COL. MILLSON TESTIFIED THAT MR. BURGAMY WAS TOLD ON ONE OR TWO
OCCASIONS THAT HIS ATTITUDE AND TRAINING WERE SUFFICIENTLY BAD TO RESULT
IN HIS NON-REENLISTMENT. HOWEVER, NO RECORD OF THESE ALLEGED
COUNSELLING SESSIONS, SHORTCOMING OR FAILURE TO COMPLETE THE CDC WERE
ENTERED ON MR. BURGAMY'S MILITARY FORM 623 /19/ NOR ANY WHERE ELSE ON
MR. BURGAMY'S MILITARY RECORD. THERE WAS A MILITARY "PERSONAL
INFORMATION FORM" PREPARED BY CAPTAIN TEMMESFIELD, AT THE TIME ONE OF
MR. BURGAMY'S MILITARY SUPERIORS, WHICH NOTED ON A LINE CALLED "PERSONAL
INTEREST, HOBBIES" THAT BURGAMY WAS "MEMBER OF AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES." MR. BURGAMY GAVE CAPT. TEMMESFIELD SOME OF THE
INFORMATION NEEDED TO FILL OUT THE FORM IN ABOUT MAY OF 1972, BUT DID
NOT TELL HIM ABOUT THE UNION. MR. BURGAMY WAS GIVEN A COPY OF THIS FORM
AT THE LAST UTA HE ATTENDED.
C. APPEAL OF REFUSAL TO REENLIST MR. BURGAMY
BY LETTER DATED SEPTEMBER 6, 1972, ADDRESSED TO THE COMMANDER OF THE
136TH AIR REFUELING GROUP MR. BURGAMY SOUGHT REVIEW OF COL. MILLSON'S
DECISION IN ACCORDANCE WITH SECTION 1104 OF THE TEXAS CODE OF MILITARY
JUSTICE. THIS LETTER WAS ACKNOWLEDGED BY MAJ. GENERAL ROSS AYERS, THE
ADJUTANT GENERAL OF THE TEXAS AIR NATIONAL GUARD BY A LETTER OF
SEPTEMBER 9, 1972, IN WHICH GENERAL AYERS ADVISED MR. BURGAMY THAT IF HE
DESIRED TO SUBMIT A "WRITTEN STATEMENT, EVIDENCE IN WRITING OR A WRITTEN
BRIEF TO SUPPORT YOUR CONTENTIONS," HE SHOULD MAIL THEM NO LATER THAN
SEPTEMBER 18, 1972. MR. BURGAMY IN A LETTER DATED SEPTEMBER 14, ASKED
MAJ. GENERAL AYERS TO INVESTIGATE THE MATTER PERSONALLY. THE LETTER
STATES THAT THE INFORMATION MAJ. GENERAL AYERS HAD ON HAND WAS NOT
SUFFICIENT AND THAT MR. BURGAMY CAN SUPPORT HIS CASE WITH "WITNESS AND
TESTIMONY". HE REQUESTED THAT HE AND HIS REPRESENTATIVE BE PRESENT
DURING THE PERSONAL INVESTIGATION.
MAJ. GENERAL AYERS REPLIED BY LETTER DATED SEPTEMBER 22, 1972, WHICH
STATED:
"1. I HAVE CONSIDERED YOUR REQUEST UNDER SECTION 1104 OF THE TEXAS
CODE OF MILITARY
JUSTICE. ACCORDINGLY, A REVIEW OF YOUR MILITARY SERVICE HAS BEEN
CONDUCTED, AND
I FIND THAT YOU HAVE FAILED TO PROGRESS IN TRAINING AND OTHER RELATED
MILITARY MATTERS AS YOU
AGREED TO DO.
2. I HAVE RECEIVED ALL OF THE INFORMATION IN YOUR FILE AND THE
LETTER SUBMITTED BY YOU
DATED 15 SEPTEMBER 1972.
3. I HAVE DECIDED, UNDER CRITERIA SET FORTH IN ANGM 39-09, PARAGRAPH
2-1, THAT YOUR
COMMANDER'S DECISION REGARDING YOUR APPLICATION FOR REENLISTMENT WAS
CORRECT AND HIS ACTION IS
HEREBY SUSTAINED."
THERE WAS APPARENTLY NO FURTHER APPEAL AVAILABLE.
I. WAS MR. BURGAMY DENIED UNION REPRESENTATION IN VIOLATION OF
SECTIONS 19(A)(1) AND (6) OF THE ORDER
THE RECORD ESTABLISHES THAT MR. BURGAMY WAS DENIED UNION
REPRESENTATION BY MANAGEMENT OFFICIALS ON TWO OCCASIONS. /20/ ON THE
FIRST DAY HE ATTEMPTED TO TALK TO MAJ. HONEA CONCERNING CHANGES IN HIS
JOB MAJ. HONEA WOULD NOT ALLOW THE UNION REPRESENTATIVE TO BE PRESENT.
UPON DISCOVERING THAT A GRIEVANCE CONCERNING THE JOB CHANGE WAS FILED
MAJ. HONEA DID, THE VERY NEXT DAY MEET WITH MR. BURGAMY AND HIS UNION
REPRESENTATIVE CONCERNING THE GRIEVANCE. IN SO FAR AS THIS IS ALLEGED
TO BE A REFUSAL OF THE RESPONDENT TO ALLOW MR. BURGAMY TO BE REPRESENTED
BY THE UNION IN A GRIEVANCE, UNDER THE RESPONDENT'S OWN GRIEVANCE
PROCEDURE, IT IS CONCLUDED THAT IT WAS AT MOST A MISUNDERSTANDING BY
MAJ. HONEA AS TO WHETHER A GRIEVANCE WAS PENDING. IT WAS REMEDIED
IMMEDIATELY, THEREFORE WITH RESPECT TO THE GRIEVANCE. IF ANY RIGHTS OF
THE EMPLOYEES OR THE UNION AS PROTECTED BY THE ORDER, WERE INTERFERED
WITH IT WAS TO AN INSIGNIFICANT DEGREE. IN SO FAR AS THIS MEETING WAS
TO BE AS MAJ. HONEA ORIGINALLY CONSIDERED IT TO BE, AN INFORMAL CHAT OR
CONVERSATION CONCERNING THE JOB CHANGES, THE UNION WAS NOT ENTITLED BY
VIRTUE OF SECTION 10(E) TO BE PRESENT /21/ AND HENCE MR. BURGAMY WAS NOT
ENTITLED TO HAVE A UNION REPRESENTATIVE PRESENT AT SUCH INFORMAL
CONVERSATIONS. U.S. DEPARTMENT OF ARMY, TRANSPORTATION MOTOR POOL, FORT
WAINWRIGHT, ALASKA, A/SLMR NO. 278.
THE SECOND INCIDENT OCCURRED IN CONNECTION WHEN COL. MILLSON, MR.
BURGAMY'S THIRD LINE SUPERVISOR, CALLED IN MR. BURGAMY TO A COUNSELLING
SESSION CONCERNING HIS BEING OUT OF UNIFORM. MR. BURGAMY WAS DENIED
PERMISSION TO HAVE A UNION REPRESENTATIVE PRESENT AT THIS MEETING. MR.
BURGAMY FEARED THAT SOME ADVERSE ACTION MIGHT BE TAKEN AND AT THE
MEETING HE WAS ASKED TO SIGN CERTAIN STATEMENTS CONCERNING HIS ALLEGED
MISCONDUCT. AS A RESULT OF THE MEETING MR. BURGAMY RECEIVED AN "ADVERSE
PERSONNEL ACTION" LETTER OF JUNE 1. THESE COUNSELLING SESSIONS WERE
CONDUCTED BY SUPERVISORS, INVOLVED DISCUSSION OF EMPLOYEE SHORT-COMINGS,
AND ON OCCASIONS RESULTED IN AND INVOLVED FORMAL OR INFORMAL ADVERSE
PERSONNEL ACTIONS BEING TAKEN AGAINST EMPLOYEES. THEY COULD AND DID
RESULT IN THE FILING OF GRIEVANCES BY THE EMPLOYEES IN QUESTION. THE
COUNSELLING SESSIONS INVOLVED WORKING CONDITIONS AND WORK PERFORMANCE.
IN THE INCIDENT IN QUESTION MR. BURGAMY WAS SUMMONED TO THE OFFICE OF
HIS THIRD LINE SUPERVISOR AND CONFRONTED WITH ALLEGATIONS THAT HE HAD
VIOLATED THE BASE WIDE UNIFORM REQUIREMENTS. /22/ STATEMENTS WERE
ATTEMPTED TO BE TAKEN AND AS A RESULT OF THE COUNSELLING SESSION MR.
BURGAMY RECEIVED THE "ADVERSE PERSONNEL ACTION" LETTER DATED JUNE 1,
1973. THIS MATTER LED TO A FORMAL GRIEVANCE BEING FILED. IT IS
CONCLUDED THAT THIS COUNSELLING SESSION WAS A "FORMAL DISCUSSION" WITHIN
THE MEANING OF SECTION 10(E) OF THE ORDER. CF. U.S. ARMY HEADQUARTERS,
U.S. ARMY TRAINING CENTER, INFANTRY, FORT JACKSON LAUNDRY FACILITY, FORT
JACKSON, SOUTH CAROLINA, A/SLMR NO. 242 AND U.S. DEPARTMENT OF THE ARMY,
TRANSPORTATION MOTOR POOL, FORT WAINWRIGHT, ALASKA, SUPRA. THEREFORE
THE UNION WAS ENTITLED TO BE PRESENT AND THE REFUSAL TO ALLOW IT TO
REPRESENT MR. BURGAMY AT THE COUNSELLING SESSION VIOLATED SECTION
19(A)(6) OF THE ORDER. SIMILARLY IT WAS CONCLUDED THAT MR. BURGAMY WAS
ENTITLED TO BE REPRESENTED BY THE UNION AT THE COUNSELLING SESSION AND
THE REFUSAL TO PERMIT IT VIOLATED SECTION 19(A)(1) OF THE ORDER. U.S.
DEPARTMENT OF THE ARMY, TRANSPORTATION MOTOR POOL, FORT WAINWRIGHT,
ALASKA, SUPRA. /23/ IT IS FURTHER CONCLUDED THAT THERE WAS A GENERAL
POLICY AGAINST PERMITTING UNION REPRESENTATIVES AT SUCH COUNSELLING
SESSIONS AND THAT, FOR THE AFORESAID REASONS, SUCH A POLICY VIOLATES
SECTIONS 19(A)(1) AND 19(A)(6) OF THE ORDER. AT THE COUNSELLING SESSION
WITH MAJ. HONEA, MR. BURGAMY'S 2ND LINE SUPERVISOR, CONCERNING HIS
ABUSIVE LANGUAGE WHEN PROTESTING THE REFUSAL TO ALLOW A UNION
REPRESENTATIVE AT THE GRIEVANCE MEETING MR. BURGAMY WAS TOLD THAT HE
DIDN'T NEED A UNION REPRESENTATIVE. IT WAS NOTED, DESPITE THIS, THAT HE
DID GO AND GET A UNION REPRESENTATIVE WHO REMAINED WHILE MAJ. HONEA READ
MR. BURGAMY THE REPRIMAND LETTER THAT HE PROPOSED TO PUT IN MR.
BURGAMY'S PERSONNEL FILE. AGAIN THIS MATTER LED TO A FORMAL GRIEVANCE
BEING FILED. THIS STATEMENT BY MAJ. HONEA WOULD NATURALLY DISCOURAGE
MR. BURGAMY FROM EXERCISING HIS RIGHT TO BE REPRESENTED AT THE
COUNSELLING SESSION BY HIS COLLECTIVE BARGAINING AGENT AND THEREBY
VIOLATES SECTION 19(A)(1) OF THE ORDER.
II. WAS MR. BURGAMY DISCHARGED IN VIOLATION OF SECTION 19(A)(2) OF
THE ORDER.
A. REVIEWABILITY OF THE DECISION NOT TO REENLIST MR. BURGAMY
IT IS THE RESPONDENT'S CONTENTION THAT THE DECISION NOT TO REENLIST
MR. BURGAMY AS A MEMBER OF THE TEXAS AIR NATIONAL GUARD IS NOT
REVIEWABLE UNDER EXECUTIVE ORDER 11491 BECAUSE MEMBERSHIP, ENLISTMENT,
AND REENLISTMENT IN THE AIR NATIONAL GUARD HAS BEEN DELEGATED TO THE
STATES AND IS THEIR SOLE RESPONSIBILITY. /24/ THE ACTIVITY FURTHER
CONTENDS THAT BECAUSE THE FEDERAL LAW REQUIRES THAT CIVILIAN EMPLOYEES
OF THE NATIONAL GUARD BE MEMBERS OF THE NATIONAL GUARD, /25/ MR.
BURGAMY'S DISCHARGE AS A CIVILIAN EMPLOYEE BECAUSE HE WAS NO LONGER A
MEMBER OF THE NATIONAL GUARD WAS REQUIRED BY LAW AND IS THEREFORE ALSO
NON-REVIEWABLE.
THESE CONTENTIONS ARE REJECTED AT LEAST IN SO FAR AS THEY MAY AFFECT
THE DISCHARGE OF MR. BURGAMY FROM HIS CIVILIAN EMPLOY. THE ASSISTANT
SECRETARY HAS HELD IN BOTH REPRESENTATION AND UNFAIR LABOR PRACTICE
SITUATIONS THAT THE ORDER APPLIES TO CIVILIAN EMPLOYEES OF THE NATIONAL
GUARD AND PROTECTS THE RIGHTS OF THE EMPLOYEES. /26/ IN SUCH
CIRCUMSTANCES IT WOULD WHOLLY FRUSTRATE THE PURPOSE AND AIMS OF THE
ORDER, IF IT AND RELATED STATUTES AND LAWS WERE READ TO PERMIT THE TEXAS
AIR NATIONAL GUARD TO AVOID THE REQUIREMENTS OF THE ORDER AND THE
PROTECTION AFFORDED CIVILIAN EMPLOYEES MERELY BE AFFECTING THE
EMPLOYEE'S MILITARY STATUS. THEREFORE, ALTHOUGH PERHAPS THE DECISION
NOT TO REENLIST MR. BURGAMY MAY NOT IN AND OF ITSELF BE REVIEWABLE UNDER
THE ORDER, IN THE CLASSICAL SENSE, (I.E., A REMEDIAL ORDER THAT WOULD
ORDER THE TEXAS AIR NATIONAL GUARD TO REENLIST HIM AND NOT AFFECT THE
CIVILIAN EMPLOYMENT) IT IS REVIEWABLE TO THE EXTENT OF DETERMINING
WHETHER THE MILITARY DISCHARGE WAS BEING USED TO INTERFER WITH AND
COERCE CIVILIAN EMPLOYEES OF THE TEXAS AIR NATIONAL GUARD IN THE
EXERCISE OF THEIR RIGHTS AS PROTECTED BY THE ORDER AND TO ULTIMATELY
ACCOMPLISH MR. BURGAMY'S DISCRIMINATORY DISCHARGE FROM HIS CIVILIAN
EMPLOY. /27/
THE ORDER, THEREFORE, MUST PERMIT A DETERMINATION TO BE MADE AS TO
WHETHER THE REASONS UPON WHICH THE DECISION NOT TO REENLIST BURGAMY WAS
BASED WERE MERE PRETEXTS AND WHETHER THE ACTUAL REASON WAS BECAUSE MR.
BURGAMY HAD ENGAGED IN ACTIVITY PROTECTED BY THE ORDER AND IT WAS
RECOGNIZED THAT THE MILITARY DISCHARGE WOULD NECESSARILY RESULT IN HIS
DISCHARGE FROM HIS CIVILIAN EMPLOY BE THE NATIONAL GUARD.
THE RESPONDENT CONTENDS THAT IN ANY EVENT SECTION 19(D) OF THE ORDER
/28/ , BECAUSE THERE WAS AN APPEALS PROCEDURE AVAILABLE TO MR. BURGAMY
WITH RESPECT TO THE DECISION OF THE TEXAS AIR NATIONAL GUARD NOT TO
REENLIST HIM. /29/ WOULD BAR ANY REVIEW OF THE DECISION NOT TO REENLIST
MR. BURGAMY. THE APPEALS PROCEDURE IS SET FORTH IN SECTION 1104, TEXAS
CODE OF MILITARY JUSTICE. /30/
IN THE SUBJECT CASE MR. BURGAMY, UPON REQUESTING REVIEW OF COL.
MILLSON'S DECISION NOT TO REENLIST HIM, WAS ADVISED BY THE ADJUTANT
GENERAL "SHOULD YOU DESIRE TO SUBMIT ANY WRITTEN STATEMENT, EVIDENCE IN
WRITING OR A WRITTEN BRIEF TO SUPPORT YOUR CONTENTIONS, PLEASE MAIL THEM
NO LATER THAN 18 SEPTEMBER 1972." MR. BURGAMY WROTE BACK ON SEPTEMBER
15, 1972 STATING THAT THE RECORD, AS IT THEN EXISTED WAS NOT SUFFICIENT
AND THAT HE COULD SUPPORT HIS CASE WITH "WITNESS" AND TESTIMONY AT
HENSLEY FIELD. MR. BURGAMY FURTHER REQUESTED THAT HE AND HIS
REPRESENTATIVE BE ALLOWED TO BE PRESENT AT THE INVESTIGATION. THE
ADJUTANT GENERAL IN HIS LETTER OF SEPTEMBER 22, 1972 SUSTAINED THE
DECISION NOT TO REENLIST MR. BURGAMY. HE DID NOT ADDRESS HIMSELF TO MR.
BURGAMY'S REQUEST FOR AN OPPORTUNITY TO BE PRESENT AND SUBMIT TESTIMONY
AND HIS POSITION /31/ NOR DID HE GIVE MR. BURGAMY AN OPPORTUNITY TO
SUBMIT EVIDENCE OR SET FORTH HIS POSITION IN ANOTHER FORM.
IT IS CONCLUDED THAT THE RECORD DOES NOT ESTABLISH THAT SECTION 1104
TEXAS CODE OF MILITARY JUSTICE IN ITS FACE OR AS INTERPRETED PERMITTED
MR. BURGAMY TO SEEK CONSIDERATION OF WHETHER HE WAS DENIED REENLISTMENT
IN THE TEXAS AIR NATIONAL GUARD BECAUSE HE ENGAGED IN ACTIVITY PROTECTED
BY THE ORDER. THEREFORE THE RECORD FAILS TO ESTABLISH THAT, WITHIN THE
MEANING OF SECTION 19(D) OF THE ORDER, THE ISSUE OF WHETHER MR. BURGAMY
WAS DENIED REENLISTMENT FOR DISCRIMINATORY AND UNLAWFUL REASONS UNDER
THE ORDER, COULD BE RAISED UNDER "AN APPEALS PROCEDURE." /32/ THEREFORE
IT IS CONCLUDED THAT SECTION 19(D) OF THE ORDER DOES NOT BAR
CONSIDERATION OF WHETHER MR. BURGAMY WAS DENIED REENLISTMENT FOR
DISCRIMINATORY REASONS AND IN ORDER TO AFFECT HIS CIVILIAN EMPLOYMENT.
B. THE DISCHARGE
THE REASON GIVEN BY THE RESPONDENT FOR ITS REFUSAL TO REENLIST MR.
BURGAMY WAS PRIMARILY HIS FAILURE TO COMPLETE A CDC. YET THE EVIDENCE
ESTABLISHES THAT THERE WAS AT LEAST SOME CONFUSION AS TO HOW LONG MR.
BURGAMY HAD TO COMPLETE THIS COURSE. FURTHER I FIND THAT MR. BURGAMY
WAS NOT ADVISED OF THE POSSIBLE CONSEQUENCES OF HIS FAILURE TO COMPLETE
THE CDC. /33/
LONG TIME EMPLOYEES AND MEMBERS OF THE TEXAS AIR NATIONAL GUARD
TESTIFIED THAT THEY NEVER RECALLED ANY OTHER CASE IN WHICH A PERSON WAS
DENIED REENLISTMENT BECAUSE OF A FAILURE TO COMPLETE A CDC. THE RECORD
DISPUTES COL. MILLSON'S STATEMENT THAT ALL PERSONS HAD TO COMPLETE A CDC
IN HIS SPECIALITY OR BE DISCHARGED. ONE EMPLOYEE, AN AIR TECHNICIAN FOR
18 YEARS AND A MEMBER OF THE TEXAS AIR NATIONAL GUARD FOR 19 YEARS
TESTIFIED THAT HE HAD NEVER COMPLETED A CDC IN HIS SPECIALITY. /34/ THE
OTHER REASONS GIVEN TO MR. BURGAMY FOR THE DECISION NOT TO REENLIST HIM
WERE HIS FAILURE TO RESPOND TO THE "COUNSELLING" AND HIS "IMPERTINENT
MANNER IN DEALING WITH SUPERIOR OFFICERS AND AIRMEN." HOWEVER, THE ONLY
EXAMPLES OF SUCH CONDUCT PRESENTED AT THE HEARING WERE HIS FAILURE TO
WEAR THE PROPER UNIFORM AT THE FIRST UTA HE ATTENDED /35/ , THE INCIDENT
THAT OCCURRED WITH SARGENT DAVIS CONCERNING THE IMPROPER WEARING OF HIS
HAT SOON AFTER MR. BURGAMY JOINED THE 136TH /36/ AND HIS PROTESTING TO
SGT. DAVIS CONCERNING SGT. DAVIS' USE OF PROFANITY WHEN RECEIVING AN
INJECTION.
COL. MILLSON'S TESTIMONY ESTABLISHES THAT IT WAS VERY DIFFICULT
DISTINGUISHING WHEN HE AND OTHERS WERE ACTING AND PERFORMING IN THEIR
CAPACITY AS CIVILIAN EMPLOYEES OF THE TEXAS AIR NATIONAL GUARD AND IN
THEIR CAPACITY AS MEMBERS OF THE TEXAS AIR NATIONAL GUARD. COL. MILLSON
WAS MR. BURGAMY'S SUPERIOR WITH RESPECT TO BOTH HIS MILITARY AND
CIVILIAN DUTIES AND COL. MILLSON MADE THE DETERMINATION NOT TO REENLIST
MR. BURGAMY.
COL. MILLSON AND HIS SUBORDINATES WERE CLEARLY DISPLEASED WITH
CERTAIN ASPECTS OF MR. BURGAMY'S CIVILIAN EMPLOYMENT. HE FILED MORE
GRIEVANCES THAN ANY OTHER EMPLOYEE AND INSISTED UPON HAVING THE UNION
REPRESENT HIM. HE AND THE UNION PURSUED THESE GRIEVANCES VIGOROUSLY.
IN FACT COL. MILLSON ACCUSED BOTH MR. BURGAMY AND THE UNION OF HARASSING
HIM AND MR. BURGAMY'S OTHER SUPERVISORS BY THE PROCESSING OF THESE
GRIEVANCES. FURTHER THE RECORD ESTABLISHED THAT MR. BURGAMY USED TO
COMPLAIN TO HIS SUPERVISORS ABOUT THE WORKING CONDITIONS AND OFTEN
INSISTED THAT THE UNION BE PRESENT WHILE HE PRESENTED SUCH COMPLAINTS.
SIMILARLY DURING COUNSELLING SESSIONS, WHEN THERE WAS A LIKELIHOOD OF A
REPRIMAND OR SOME OTHER SUCH ACTION, MR. BURGAMY INSISTED THAT THE UNION
BE PRESENT TO REPRESENT HIM. THIS WAS NOT PERMITTED ON ONE OCCASION AND
COL. MILLSON INDICATED HE DID NOT APPROVE OF MR. BURGAMY'S INSISTANCE ON
UNION REPRESENTATION AT COUNSELLING SESSIONS. MR. BURGAMY WAS CLEARLY,
BECAUSE OF HIS "GRIEVANCES" /37/ AND HIS INSISTANCE UPON UNION
REPRESENTATION, CONSIDERED A TROUBLEMAKER AND DISRUPTIVE FORCE WITH
RESPECT TO HIS CIVILIAN EMPLOYMENT IN THE TEXAS AIR NATIONAL GUARD. AS
DISCUSSED ABOVE THE INSISTANCE UPON UNION REPRESENTATION DURING
GRIEVANCES AND COUNSELLING SESSIONS IS A RIGHT PROTECTED BY THE ORDER.
IT IS CONCLUDED THAT THE RECORD AS A WHOLE ESTABLISHES THAT THE
LATTER CONDUCT BY MR. BURGAMY WITH RESPECT TO HIS CIVILIAN EMPLOYMENT
WAS WHAT ACTUALLY MOTIVATED COL. MILLSON IN DETERMINING NOT TO REENLIST
MR. BURGAMY IN THE TEXAS AIR NATIONAL GUARD. COL. MILLSON IT IS
CONCLUDED TOOK THIS ACTION NOT BECAUSE OF MR. BURGAMY'S FAILURE TO
COMPLETE THE CDC AND THE OTHER REASONS GIVEN BY COL.. MILLSON, BUT
RATHER BECAUSE COL. MILLSON DID NOT APPROVE OF MR. BURGAMY'S CONDUCT
WITH RESPECT TO HIS CIVILIAN EMPLOYMENT AND BECAUSE HE KNEW IT WOULD
NECESSARILY RESULT IN MR. BURGAMY'S BEING DISCHARGED FROM HIS CIVILIAN
EMPLOYMENT AS AN AIR TECHNICIAN.
THIS DISCHARGE OF MR. BURGAMY FOR THE REASONS SET FORTH ABOVE
INTERFERED WITH, RESTRAINED AND COERCED MR. BURGAMY AND OTHER CIVILIAN
EMPLOYEES OF THE RESPONDENT IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
THE ORDER AND DISCOURAGED HIS MEMBERSHIP IN THE AFGE, AND THEREFORE
CONSTITUTED A VIOLATION OF SECTIONS 19(A)(1) AND 19(A)(2) OF THE ORDER.
IT IS CONCLUDED BASED ON THE FOREGOING THAT THE DISCHARGE OF MR.
BURGAMY BY THE TEXAS AIR NATIONAL GUARD BECAUSE HE ENGAGED IN THE ABOVE
CONDUCT WHICH IS PROTECTED BY THE ORDER, VIOLATES SECTION 19(A)(1) AND
(2) OF THE ORDER.
C. THE REMEDY
IN LIGHT OF THE CONCLUSION THAT MR. BURGAMY WAS DENIED REENLISTMENT
IN THE TEXAS AIR NATIONAL GUARD IN ORDER TO BRING ABOUT HIS DISCHARGE
FROM HIS CIVILIAN EMPLOYMENT IN VIOLATION OF SECTIONS 19(A)(1) AND
19(A)(2) OF THE ORDER, THE QUESTION OF APPROPRIATE REMEDY IS RAISED.
SINCE THE ORDER ONLY APPLIES TO MR. BURGAMY'S CIVILIAN EMPLOYMENT, IT
IS CONCLUDED THAT THE REMEDY IN THIS CASE SHOULD BE LIMITED. THEREFORE,
IT WILL BE RECOMMENDED THAT RESPONDENT SHOULD OFFER MR. BURGAMY HIS
FORMER OR SUBSTANTIALLY EQUIVALENT EMPLOYMENT AS A CIVILIAN EMPLOYEE OF
THE TEXAS AIR NATIONAL GUARD. /38/ IT IS FURTHER CONCLUDED THAT IN
ORDER TO PLACE MR. BURGAMY IN THE SAME POSITION HE WOULD HAVE BEEN IN,
HAD HE NOT BEEN DISCHARGED IN VIOLATION OF SECTIONS 19(A)(1) AND
19(A)(2) OF THE ORDER, THE RESPONDENT SHOULD REIMBURSE HIM AND MAKE HIM
WHOLE FOR ANY WAGES AND EARNINGS HE LOST AS A RESULT OF THE
DISCRIMINATORY DISCHARGE /39/ LESS HIS INTERIM EARNINGS. THE REMEDY HAS
LONG BEEN RECOGNIZED IN THE PRIVATE SECTOR AS APPROPRIATE TO REMEDY
DISCRIMINATORY DISCHARGES, E.G., F. W. WOOLWORTH CO., 90 NLRB 289;
GOLDEN HOURS CONVELESENT HOSPITAL, 182 NLRB 817 AND NLRB V. SEVEN-UP
BOTTLING COMPANY, 344 US 344. SIMILARLY MR. BURGAMY IS ENTITLED TO BE
PAID A REASONABLE INTEREST ON THE SUM HE IS TO RECEIVE FOR THE PERIOD OF
TIME HE WAS DENIED THE USE OF THESE BACK WAGES. /40/ IT IS CONCLUDED
THAT REASONABLE INTEREST IS 6% PER ANNUM.
HAVING FOUND RESPONDENT HAS ENGAGED IN VARIOUS CONDUCT WHICH IS
VIOLATIVE OF SECTIONS 19(A)(1), (2) AND (6) OF THE ORDER, I RECOMMEND
THAT THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS
ADOPT THE FOLLOWING ORDER DESIGNED TO EFFECTUATE THE PURPOSE OF
EXECUTIVE ORDER 11491:
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491 AND SECTION
203.25(A) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR FOR LABOR
MANAGEMENT RELATIONS HEREBY ORDERS THAT THE DEPARTMENT OF DEFENSE,
NATIONAL GUARD BUREAU, TEXAS AIR NATIONAL GUARD SHALL:
1. CEASE AND DESIST FROM:
(A) CONDUCTING COUNSELLING SESSIONS AND OTHER FORMAL DISCUSSIONS
BETWEEN MANAGEMENT AND
EMPLOYEES CONCERNING GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR
OTHER MATTERS AFFECTING
GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE COLLECTIVE BARGAINING
UNIT WITHOUT GIVING TEXAS
AIR NATIONAL GUARD COUNCIL OF LOCALS, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO,
THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, THE OPPORTUNITY TO BE
REPRESENTED AT SUCH DISCUSSIONS
BY ITS OWN CHOSEN REPRESENTATIVE.
(B) REFUSING THE REQUEST MADE BY MR. JAMES BURGAMY TO BE REPRESENTED
BY A SHOP STEWARD OF
THE TEXAS AIR NATIONAL GUARD COUNCILS OF LOCALS, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
AFL-CIO, OR ANY OTHER REPRESENTATIVE DESIGNATED BY SAID LABOR
ORGANIZATION, AT ANY COUNSELLING
SESSION OR OTHER FORMAL DISCUSSION BETWEEN MANAGEMENT AND MR. JAMES
BURGAMY, CONVENED FOR THE
PURPOSE OF DISCUSSING GRIEVANCES, PERSONNEL POLICIES AND PRACTICES,
OR OTHER MATTERS AFFECTING
GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE COLLECTIVE BARGAINING
UNIT.
(C) MAINTAINING A POLICY OR RULE WHICH DOES NOT PERMIT EMPLOYEES TO
BE REPRESENTED BY THE
TEXAS AIR NATIONAL GUARD COUNCIL OF LOCALS, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO AT COUNSELLING SESSIONS OR OTHER FORMAL DISCUSSIONS
CONCERNING GRIEVANCES, PERSONNEL
POLICIES AND PRACTICES OR OTHER MATTERS AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES IN
THE COLLECTIVE BARGAINING UNIT.
(D) DISCOURAGING MEMBERSHIP IN TEXAS AIR NATIONAL GUARD COUNCIL OF
LOCALS, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, OR ANY OTHER LABOR
ORGANIZATION BY DISCRIMINATION
IN REGARD TO HIRE, TENURE, PROMOTION OR OTHER CONDITIONS OF
EMPLOYMENT.
(E) INTERFERING WITH, RESTRAINING, OR COERCING MR. JAMES BURGAMY OR
ANY OTHER EMPLOYEE IN
THE BARGAINING UNIT BY DENYING THEM THE RIGHT TO BE REPRESENTED BY A
SHOP STEWARD OF THE TEXAS
AIR NATIONAL GUARD COUNCIL OF LOCALS, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO OR
ANY OTHER INDIVIDUAL DESIGNATED TO ACT AS A REPRESENTATIVE OF SAID
LABOR ORGANIZATION, AT ANY
COUNSELLING SESSION, MEETING OR FORMAL DISCUSSION BETWEEN MANAGEMENT
AND EMPLOYEES CONCERNING
GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS
AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES IN THE COLLECTIVE BARGAINING UNIT.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSE AND PROVISIONS OF THE EXECUTIVE ORDER:
(A) OFFER TO MR. JAMES BURGAMY IMMEDIATE AND FULL REINSTATEMENT TO
HIS FORMER JOB, AND IF
THAT JOB NO LONGER EXISTS TO A SUBSTANTIALLY EQUIVALENT POSITION,
WITHOUT PREJUDICE TO HIS
SENIORITY OR OTHER RIGHTS AND PRIVILEGES AND MAKE HIM WHOLE BY PAYING
TO HIM A SUM OF MONEY
EQUAL TO THAT WHICH HE WOULD BUT FOR DISCRIMINATORY DISCHARGE, HAVE
EARNED IN RESPONDENT'S
EMPLOY BETWEEN THE DATE OF THE DISCHARGE AND THE DATE OF RESPONDENT'S
OFFER OF REINSTATEMENT,
LESS HIS NET EARNINGS ELSEWHERE DURING SAID PERIOD; THE SUM SO PAID
TO DRAW INTEREST AT THE
RATE OF 6 PERCENT PER ANNUM UNTIL PAID.
(B) NOTIFY TEXAS AIR NATIONAL GUARD COUNCIL OF LOCALS, AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, OF AND GIVE IT THE OPPORTUNITY TO BE REPRESENTED
AT FORMAL DISCUSSIONS
BETWEEN MANAGEMENT AND EMPLOYEES OR EMPLOYEE REPRESENTATIVES
CONCERNING GRIEVANCES, PERSONNEL
POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES IN
THE COLLECTIVE BARGAINING UNIT BY ITS OWN CHOSE REPRESENTATIVE.
(C) POST AT ALL ITS FACILITIES IN WHICH EMPLOYEES IN THE COLLECTIVE
BARGAINING UNIT
REPRESENTED BY THE TEXAS AIR NATIONAL GUARD COUNCIL OF LOCALS,
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, WORK COPIES OF THE ATTACHED NOTICE
MARKED "APPENDIX" ON FORMS
TO BE FURNISHED BY THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS. UPON
RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE ADJUTANT GENERAL
OF THE TEXAS AIR NATIONAL
GUARD AND THEY SHALL BE POSTED AND MAINTAINED BY HIM FOR SIXTY (60)
CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES
TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE ADJUTANT GENERAL AND THE COMMANDING OFFICERS
AT EACH INSTALLATION
SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(D) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN
WRITING WITHIN TWENTY (20) DAYS FROM THE DATE OF THIS ORDER AS TO
WHAT STEPS HAVE BEEN TAKEN
TO COMPLY HEREWITH.
DATED AT WASHINGTON, D.C.
JULY 27, 1973
WE WILL NOT CONDUCT COUNSELLING SESSIONS AND OTHER FORMAL DISCUSSIONS
BETWEEN MANAGEMENT AND EMPLOYEES CONCERNING GRIEVANCES, PERSONNEL
POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES IN THE COLLECTIVE BARGAINING UNIT WITHOUT GIVING
TEXAS AIR NATIONAL GUARD COUNCIL OF LOCALS, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE,
THE OPPORTUNITY TO BE REPRESENTED AS SUCH DISCUSSIONS BY ITS OWN CHOSEN
REPRESENTATIVE.
WE WILL NOT REFUSE THE REQUEST MADE BY MR. JAMES BURGAMY TO BE
REPRESENTED BY A SHOP STEWARD OF THE TEXAS AIR NATIONAL GUARD COUNCIL OF
LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, OR ANY
OTHER REPRESENTATIVE DESIGNATED BY SAID LABOR ORGANIZATION, AT ANY
COUNSELLING SESSION OR OTHER FORMAL DISCUSSION BETWEEN MANAGEMENT AND
MR. JAMES BURGAMY, CONVENED FOR THE PURPOSE OF DISCUSSING GRIEVANCES,
PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL
WORKING CONDITIONS OF EMPLOYEES IN THE COLLECTIVE BARGAINING UNIT.
WE WILL NOT MAINTAIN A POLICY OR RULE WHICH DOES NOT PERMIT EMPLOYEES
TO BE REPRESENTED BY THE TEXAS AIR NATIONAL GUARD COUNCIL OF LOCALS,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AT COUNSELLING
SESSIONS OR OTHER FORMAL DISCUSSIONS CONCERNING GRIEVANCES, PERSONNEL
POLICIES AND PRACTICES OR OTHER MATTERS AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES IN THE COLLECTIVE BARGAINING UNIT.
WE WILL NOT DISCOURAGE MEMBERSHIP IN TEXAS AIR NATIONAL GUARD COUNCIL
OF LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, OR ANY
OTHER LABOR ORGANIZATION BY DISCRIMINATION IN REGARD TO HIRE, TENURE,
PROMOTION OR OTHER CONDITION OF EMPLOYMENT.
WE WILL NOT INTERFER WITH, RESTRAIN, OR COERCE MR. JAMES BURGAMY OR
ANY OTHER EMPLOYEE IN THE BARGAINING UNIT BY DENYING THEM THE RIGHT TO
BE REPRESENTED BY A SHOP STEWARD OF THE TEXAS AIR NATIONAL GUARD COUNCIL
OF LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO OR ANY
OTHER INDIVIDUAL DESIGNATED TO ACT AS A REPRESENTATIVE OF SAID LABOR
ORGANIZATION, AT ANY COUNSELLING SESSION, MEETING OR FORMAL DISCUSSION
BETWEEN MANAGEMENT AND EMPLOYEES CONCERNING GRIEVANCES, PERSONNEL
POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES IN THE COLLECTIVE BARGAINING UNIT.
WE WILL OFFER TO MR. BURGAMY IMMEDIATE AND FULL REINSTATEMENT TO HIS
FORMER JOB, AND IF THAT JOB NO LONGER EXISTS TO A SUBSTANTIALLY
EQUIVALENT POSITION, WITHOUT PREJUDICE TO HIS SENIORITY OR OTHER RIGHTS
AND PRIVILEGES AND MAKE HIM WHOLE BY PAYING TO HIM A SUM OF MONEY EQUAL
TO THAT WHICH HE WOULD, BUT FOR DISCRIMINATORY DISCHARGE, HAVE EARNED IN
RESPONDENT'S OFFER OF REINSTATEMENT, DATE OF THE DISCHARGE AND THE DATE
OF RESPONDENT'S OFFER OF REINSTATEMENT, LESS HIS NET EARNINGS ELSEWHERE
DURING SAID PERIOD; THE SUM SO PAID TO DRAW INTEREST AT THE RATE OF 6
PERCENT PER ANNUM UNTIL PAID.
WE WILL NOTIFY THE TEXAS AIR NATIONAL GUARD COUNCIL OF LOCALS,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, OF AND GIVE IT THE
OPPORTUNITY TO BE REPRESENTED AT FORMAL DISCUSSIONS BETWEEN MANAGEMENT
AND EMPLOYEES OR EMPLOYEE REPRESENTATIVES CONCERNING GRIEVANCES,
PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL
WORKING CONDITIONS OR EMPLOYEES IN THE COLLECTIVE BARGAINING UNIT BY ITS
OWN CHOSE REPRESENTATIVE.
DATED:
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
ADMINISTRATOR OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED
STATES DEPARTMENT OF LABOR, WHOSE ADDRESS IS: ROOM 2511, FEDERAL OFFICE
BUILDING, 911 WALNUT STREET, KANSAS CITY, MISSOURI 64106.
/1/ HEREAFTER CALLED THE UNION. AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES WILL HEREAFTER BE ABBREVIATED AS A.F.G.E.
/2/ BOTH PARTIES FILED BRIEFS ON APRIL 30, 1973.
/3/ THE FOLLOWING CORRECTIONS ARE HEREBY MADE IN THE TRANSCRIPT.
PAGE 6 LINE 23 "FOR THAT?" IS CORRECTED TO "OR THAT . . . "
PAGE 89 LINE 19 "FORMAL" IS CORRECTED TO "INFORMAL"
PAGE 90 LINE 4 "OF THE FORMAL . . . . " IS DELETED.
/4/ PART OF THE AIR REFUELING OPERATION.
/5/ COL. MILLSON TESTIFIED THAT IT WAS NOT ALWAYS EASY TO SEPARATE
HIS AND THE EMPLOYEE'S MILITARY ACTIVITIES AND DUTIES FROM THEIR
CIVILIAN ACTIVITIES AND DUTIES.
/6/ THERE WAS NO NEGOTIATED GRIEVANCE. THE PROCEDURE FOLLOWED WAS
THE TEXAS AIR NATIONAL GUARD'S OWN GRIEVANCE PROCEDURE.
/7/ THE UNION REPRESENTATIVE WAS NOT CALLED AS A WITNESS.
/8/ BECAUSE OF THE CONFUSION IN MR. BURGAMY'S TESTIMONY WITH RESPECT
TO THIS MEETING, I CREDIT COL. MILLSON'S VERSION OF THIS MEETING.
/9/ MAJ. HONEA LATER DISCOVERED THAT MR. BURGAMY HAD APPARENTLY
ALREADY STARTED TO PROCESS A GRIEVANCE AND THAT THIS WAS PART OF THE
PROCEDURE. MAJ. HONEA STATES THAT HE DID MEET WITH MR. BURGAMY AND THE
UNION REPRESENTATIVE ON THE NEXT DAY.
/10/ MAJ. HONEA STATES THAT ALTHOUGH HE NORMALLY DOES NOT ALLOW UNION
REPRESENTATIVES AT COUNSELLING SESSIONS, HE HAS NEVER DENIED MR. BURGAMY
THE REQUEST TO HAVE A UNION REPRESENTATIVE PRESENT.
/11/ UNION OFFICIAL NICKLAS STATES THAT AT ONE GRIEVANCE MEETING
INVOLVING MR. BURGAMY, HE WAS NOT SURE WHICH ONE, HE WAS TOLD BY COL.
MILLSON THAT THE UNION WAS SOLICITING GRIEVANCES AND HARASSING HIM AND
THE SUPERIORS.
/12/ ONE DID NOT TESTIFY AND THE OTHER MR. NICKLAS, DID NOT TESTIFY
WITH RESPECT TO WHETHER OR NOT HE WAS PRESENT.
/13/ MR. BURGAMY'S RECOLLECTION OF THIS MEETING SEEMED CONFUSED AND,
IN LIGHT OF THE REPORT OF THE MEETING AND BURGAMY'S OWN STATEMENTS THAT
HE USUALLY DID HAVE UNION REPRESENTATION AT GRIEVANCE MEETINGS, COL.
MILLSON'S TESTIMONY IS CREDITED.
/14/ OF 8 GRIEVANCES FILED MR. BURGAMY WAS RESPONSIBLE FOR 3.
/15/ UTA STANDS FOR "UNIT TRAINING ASSEMBLERS". THESE ARE THE
WEEKEND OR EVENING TRAINING PERIODS REQUIRED OF MEMBERS OF THE NATIONAL
GUARD.
/16/ THIS WAS NOT MARKED ON MR. BURGAMY'S MILITARY RECORD.
/17/ "CAREER DEVELOPMENT COURSE". THESE ARE TRAINING COURSES
REQUIRED OF MEMBERS OF THE AIR NATIONAL GUARD. THEY ARE RELATED TO THE
INDIVIDUALS MILITARY SPECIALTIES. THEY ARE COMPOSED OF A SERIES OF
"VOLUMES" WHICH ARE IN THE NATURE OF WORKBOOKS WHICH THE INDIVIDUAL
WORKS UPON, COMPLETES AND THEN TURNS IN OR MAILS BACK. THEY ARE SIMILAR
TO CORRESPONDENCE COURSES.
/18/ NONE OF THESE INDIVIDUALS WERE CALLED TO TESTIFY CONCERNING
THESE COUNSELLING SESSIONS.
/19/ A FORM THAT PRESUMABLY PROVIDES SPACE FOR NOTATIONS AND COMMENTS
CONCERNING A PERSONS PERFORMANCE, SKILL LEVEL, ETC.
/20/ ALTHOUGH THERE WERE SOME ALLEGATIONS THAT MR. BURGAMY MAY HAVE
BEEN DENIED UNION REPRESENTATION ON OTHER OCCASIONS THE CREDITED
EVIDENCE ONLY ESTABLISHED TWO SUCH INSTANCES.
/21/ IT IS NOT BEING DECIDED WHETHER THE JOB CHANGES WERE MATTERS
THAT THE UNION WAS ENTITLED TO BARGAIN ABOUT.
/22/ MR. BURGAMY HAD ALREADY DISCUSSED THIS MATTER WITH HIS TWO LOWER
LEVEL SUPERVISORS.
/23/ EVEN IF THESE COUNSELLING SESSIONS WERE NOT CONSIDERED "FORMAL
DISCUSSIONS" WITHIN THE MEANING OF SECTION 10(E), THEY ARE THE TYPE OF
MEETINGS CONCERNING AN EMPLOYEE'S WORKING CONDITIONS AND POSSIBLE
ADVERSE ACTIONS, THAT, IN ORDER TO EFFECTUATE THE PURPOSE OF THE ORDER,
REQUIRE A CONCLUSION THAT THE EMPLOYEE IS ENTITLED TO REPRESENTATION BY
HIS COLLECTIVE BARGAINING AGENT. REFUSAL TO PERMIT SUCH REPRESENTATION
VIOLATES SECTIONS 19(A)(6) AND 19(A)(1) OF THE ORDER. ALTHOUGH NOT
CONTROLLING PRECIDENT, THE REASONING OF THE CASES IN THE PRIVATE SECTOR
SEEMS PERSUASIVE, E.G., QUALITY MANUFACTURING CO., 195 NLRB NO. 42 AND
MOBIL OIL CORP., 196 NLRB NO. 144.
SEE ARKANSAS NATIONAL GUARD, A/SLMR NO. 53.
/24/ 32 USCA,APP.SECTION 564.14(B) AND SECTION 564.18(B) AND 32 USCA
SECTION 302.
/25/ 32 USCA SECTION 709.
/26/ MISSISSIPPI NATIONAL GUARD A/SLMR 20; DEPARTMENT OF DEFENSE,
FLORIDA ARMY NATIONAL GUARD A/SLMR 38; OHIO AIR NATIONAL GUARD A/SLMR
44; CALIFORNIA ARMY NATIONAL GUARD A/SLMR 47; ARKANSAS NATIONAL GUARD
A/SLMR 53; ALABAMA NATIONAL GUARD A/SLMR 67; VIRGINIA NATIONAL GUARD
A/SLMR 69; GEORGIA NATIONAL GUARD 74; ILLINOIS AIR NATIONAL GUARD
A/SLMR 101; ILLINOIS AIR NATIONAL GUARD A/SLMR 105 AND A/SLMR 225;
CALIFORNIA AIR NATIONAL GUARD A/SLMR 252; PENNSYLVANIA NATIONAL GUARD
A/SLMR 254; AND CALIFORNIA AIR NATIONAL GUARD A/SLMR 147 AND A/SLMR
259.
/27/ THE CASES CITED BY THE RESPONDENT IN ITS SUPPORT OF THE
CONTENTIONS THAT THE DECISION BY THE ADJUTANT GENERAL OF THE AIR
NATIONAL GUARD NOT TO REENLIST MR. BURGAMY ARE INAPPOSITE. ALTHOUGH IT
SHOULD BE NOTED THAT IN . . . . V. MAJOR GENERAL SYLVESTER T. DEL CRSO,
ADJUTANT GENERAL OF OHIO, ET AL (CASE NO. CA 69-382) (ED. OHIO 1971),
THE COURT DID IN FACT REVIEW WHETHER THE EVIDENCE ESTABLISHED THAT THE
OHIO NATIONAL GUARD ABUSED ITS DISCRETION BY DISCHARGING PLAINTIFF
BECAUSE OF HIS UNION ACTIVITIES. THE COURT FOUND THAT "PLAINTIFF WAS
NOT DENIED REENLISTMENT BECAUSE OF UNION ACTIVITIES."
/28/ SECTION 19(D) PROVIDES: "ISSUES WHICH CAN PROPERLY BE RAISED
UNDER AN APPEALS PROCEDURE MAY NOT BE RAISED UNDER THIS SECTION. ISSUES
WHICH CAN BE RAISED UNDER A GRIEVANCE PROCEDURE MAY, IN THE DISCRETION
OF THE AGGRIEVED PARTY, BE RAISED UNDER THAT PROCEDURE OR THE COMPLAINT
PROCEDURE UNDER THIS SECTION BUT NOT UNDER BOTH PROCEDURES. APPEALS OR
GRIEVANCE DECISIONS SHALL NOT BE CONSTRUED AS UNFAIR LABOR PRACTICE
DECISIONS. ALL COMPLAINTS UNDER THIS SECTION THAT CANNOT BE RESOLVED BY
THE PARTIES SHALL BE FILED WITH THE ASSISTANT SECRETARY."
/29/ MR. BURGAMY WAS ADVISED THAT HE HAD NO APPELLANT RIGHTS WITH
RESPECT TO HIS DISCHARGE FROM HIS CIVILIAN EMPLOY.
/30/ SECTION 1104 PROVIDES:
SEC. 1104. ANY MEMBER OF THE STATE MILITARY FORCES WHO BELIEVES
HIMSELF WRONGED BY HIS COMMANDING OFFICER, AND WHO UPON DUE APPLICATION
TO THAT COMMANDING OFFICER, IS REFUSED REDRESS, MAY COMPLAIN TO ANY
SUPERIOR COMMISSIONED OFFICER, WHO SHALL FORWARD THE COMPLAINT TO THE
GOVERNOR OR ADJUTANT GENERAL.
/31/ THE ADJUTANT GENERAL DID STATE THAT HE REVIEWED THE FILE AND
"THE LETTER BY YOU DATED 15 SEPTEMBER 1972."
/32/ UNITED STATES POSTAL SERVICE, BERWYN POST OFFICE, ILLINOIS,
A/SLMR NO. 272 IS DISTINGUISHABLE BECAUSE THE ASSISTANT SECRETARY MADE A
FINDING THAT THE APPEALS PROCEDURE, ON ITS FACE, PERMITTED THE UNFAIR
LABOR PRACTICE ISSUES TO BE RAISED. IN THE SUBJECT CASE THE PROVISIONS
ARE SO VAGUE AND THE PROCEDURES APPARENTLY SO AMORPHOUS THAT IT CAN NOT
EVEN BE DETERMINED WHETHER ANY REAL "APPEALS PROCEDURE" ACTUALLY EXISTS.
/33/ ALTHOUGH COL. MILLSON AND OTHERS ALLEGEDLY COUNSELLED MR.
BURGAMY AS TO WHAT WOULD HAPPEN IF HE FAILED TO COMPLETE THE COURSE, MR.
BURGAMY DENIES ANY SUCH COUNSELLING. I CREDIT MR. BURGAMY'S VERSION
BECAUSE NEITHER COL. MILLSON NOR ANYONE ELSE MADE ANY ENTRIES ON ANY
PERSONNEL RECORD NOTING MR. BURGAMY'S TRAINING DEFICIENCIES AND THE
COUNSELLING MEETINGS. THE FORMS HAD SPACE FOR SUCH ENTRIES. IT IS
FURTHER NOTED THAT NONE OF THE OTHER PERSONS RESPONSIBLE FOR HIS
TRAINING WHO ALSO ALLEGEDLY COUNSELLED MR. BURGAMY WITH RESPECT TO THE
CDC REQUIREMENTS WERE CALLED AS WITNESSES. IT IS APPARENT THAT IF THIS
TRAINING WAS SO IMPORTANT THAT IT WOULD JUSTIFY NOT REENLISTING MR.
BURGAMY, IT ONLY SEEMS LOGICAL THAT HE NOT ONLY WOULD HAVE BEEN
COUNSELLED AND WARNED BUT THAT ADEQUATE RECORDS AND NOTES OF SUCH
COUNSELLING AND WARNINGS WOULD HAVE BEEN MADE.
/34/ MR. BURGAMY DID IN FACT COMPLETE ONE CDC IN HIS SPECIALITY.
/35/ HE APPARENTLY ALWAYS WORE THE CORRECT UNIFORM AFTER THAT.
/36/ THAT HOWEVER, WAS A SINGLE INCIDENT, NO FURTHER ACTION WAS TAKEN
AND THERE WAS NO NOTATION WITH RESPECT TO IT MADE ON ANY OF MR.
BURGAMY'S RECORDS.
/37/ IN THE BROAD SENSE.
/38/ IT IS PRESUMED THAT THE TEXAS AIR NATIONAL GUARD WILL DO ALL
THINGS LEGALLY NECESSARY TO EFFECT THIS REEMPLOYMENT.
/39/ THE PERIOD COVERED WOULD BE FROM SEPTEMBER 30, 1972, THE DATE OF
MR. BURGAMY'S DISCHARGE, UNTIL THE DATE HE IS OFFERED REINSTATEMENT.
/40/ ALTHOUGH NOT BINDING PRECEDENT, THE REASONING IN ISIS PLUMBING &
HEATING COMPANY, 138 NLRB 716 SEEMS PERSUASIVE.
4 A/SLMR 335; P. 25; CASE NO. 35-2624(CA); JANUARY 8, 1974.
VETERANS ADMINISTRATION CENTER,
BATH, NEW YORK
A/SLMR NO. 335
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY LOCAL
491, NATIONAL FEDERATION OF FEDERAL EMPLOYEES (COMPLAINANT), AGAINST THE
VETERANS ADMINISTRATION CENTER, BATH, NEW YORK (RESPONDENT), ALLEGING
THAT THE RESPONDENT HAD VIOLATED SECTION 19(A)(2) AND (6) OF THE ORDER
BY CHANGING UNILATERALLY A CONDITION OF EMPLOYMENT OF NURSING DEPARTMENT
EMPLOYEES WHICH CONDITION WAS GRANTED TO THEM UNDER THE TERMS OF A
CURRENT NEGOTIATED AGREEMENT BETWEEN THE PARTIES. SPECIFICALLY, THE
COMPLAINANT ALLEGED THAT THE RESPONDENT, WITHOUT CONSULTING WITH THE
COMPLAINANT, DENIED NURSING ASSISTANTS A TEN-MINUTE PERIOD OF TIME, IN
PAY STATUS, FOR CLEANUP AND PERSONAL HYGIENE PRIOR TO THE END OF THE
WORK SHIFT AS PROVIDED FOR IN THE AGREEMENT. IN THIS REGARD, ARTICLE 35
OF THE PARTIES' NEGOTIATED AGREEMENT PROVIDED, IN RELEVANT PART, THAT
"THE VA CENTER AGREES TO PERMIT EMPLOYEES A 10-MINUTE PERIOD OF TIME IN
A PAY STATUS FOR CLEAN UP AND PERSONAL HYGIENE PRIOR TO THE END OF THE
WORK SHIFT WHENEVER THE WORK PROCESSES SO REQUIRE."
THE ADMINISTRATIVE LAW JUDGE FOUND THAT, IRRESPECTIVE OF RIGHTS
PREVIOUSLY ACCORDED THE EMPLOYEES, THE PARTIES' NEGOTIATED AGREEMENT
SUPERSEDED ANY FORMER PRACTICE, AND THE LANGUAGE CONTAINED IN ARTICLE 35
NECESSARILY WAS DISPOSITIVE AS TO RIGHTS ACCORDED EMPLOYEES TO CLEAN UP
BEFORE THE END OF THE SHIFT. NOTING THAT THE PARTIES' DISPUTE, IN
EFFECT, INVOLVED A DETERMINATION BASED ON THE APPLICATION AND
INTERPRETATION OF THE PARTIES' AGREEMENT WHICH, PURSUANT TO THE TERMS OF
THE AGREEMENT AND SECTION 13(A) OF THE ORDER, MUST BE RESOLVED THROUGH
THE NEGOTIATED GRIEVANCE PROCEDURE, THE ADMINISTRATIVE LAW JUDGE
CONCLUDED THAT THE ASSISTANT SECRETARY LACKED JURISDICTION TO ENTERTAIN
THE MATTER AND RECOMMENDED THAT THE COMPLAINT BE DISMISSED.
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THE ASSISTANT
SECRETARY FOUND THAT THE COMPLAINANT, BY AGREEING TO THE CLEANUP AND
PERSONAL HYGIENE PROVISION CONTAINED IN ARTICLE 35 OF THE NEGOTIATED
AGREEMENT, CLEARLY AND UNEQUIVOCALLY WAIVED ITS RIGHT TO INSIST UPON AN
UNQUALIFIED PRIVILEGE TO CLEAN UP TEN MINUTES BEFORE COMPLETING A SHIFT,
IRRESPECTIVE OF PAST PRACTICE. FURTHER, THE ASSISTANT SECRETARY FOUND
THAT THE COMPLAINANT HAD NOT MET THE BURDEN OF PROVING THAT THE
RESPONDENT'S IMPLEMENTATION OF THE AGREEMENT CONSTITUTED A UNILATERAL
CHANGE IN THE AGREED-UPON TERMS AND CONDITIONS OF EMPLOYMENT OR WAS
MOTIVATED BY ANTI-UNION CONSIDERATIONS. ACCORDINGLY, THE ASSISTANT
SECRETARY DISMISSED THE COMPLAINT.
VETERANS ADMINISTRATION CENTER,
BATH, NEW YORK
AND
LOCAL 491, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
ON AUGUST 14, 1973, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK ISSUED
HIS REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING FINDING
THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED
IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS
ENTIRETY. THEREAFTER, THE COMPLAINANT FILED EXCEPTIONS TO THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE
COMPLAINANT'S EXCEPTIONS, I HEREBY ADOPT THE ADMINISTRATIVE LAW JUDGE'S
CONCLUSIONS AND RECOMMENDATIONS TO THE EXTENT CONSISTENT HEREWITH.
THE COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT VIOLATED SECTION
19(A)(2) AND (6) OF THE ORDER BY CHANGING UNILATERALLY A CONDITION OF
EMPLOYMENT OF NURSING DEPARTMENT EMPLOYEES WHICH CONDITION WAS GRANTED
TO THEM UNDER THE TERMS OF AN EXISTING NEGOTIATED AGREEMENT.
SPECIFICALLY, THE COMPLAINANT ALLEGES THAT THE RESPONDENT, WITHOUT
CONSULTING WITH THE COMPLAINANT, DENIED NURSING ASSISTANTS A TEN-MINUTE
PERIOD OF TIME, IN PAY STATUS, FOR CLEANUP AND PERSONAL HYGIENE PRIOR TO
THE END OF THE WORK SHIFT AS PROVIDED FOR IN THE NEGOTIATED AGREEMENT.
THE RESPONDENT CONTENDS THAT THE ISSUE INVOLVED HEREIN IS ONE OF
CONTRACT INTERPRETATION AND APPLICATION OF THE AGREEMENT WHICH MUST BE
RESOLVED UNDER THE CONTRACTUAL GRIEVANCE PROCEDURE. FURTHER, THE
RESPONDENT ARGUES THAT, CONSISTENT WITH PAST PRACTICE, IT, IN FACT, HAS
PERMITTED ALL EMPLOYEES TIME FOR CLEANUP AND PERSONAL HYGIENE WHENEVER
THE WORK PROCESSES SO REQUIRED.
THE ESSENTIAL FACTS OF THE CASE ARE SET FORTH IN DETAIL IN THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS, AND I SHALL
REPEAT THEM ONLY TO THE EXTENT NECESSARY.
ON MARCH 22, 1972, THE COMPLAINANT AND THE RESPONDENT EXECUTED A
COLLECTIVE-BARGAINING AGREEMENT EFFECTIVE BY ITS TERMS FROM APRIL 13,
1972, UNTIL APRIL 13, 1974. THE AGREEMENT CONTAINED THE FOLLOWING
PROVISION:
THE VA CENTER AGREES TO PERMIT EMPLOYEES A 10-MINUTE PERIOD OF TIME
IN A PAY STATUS FOR
CLEAN UP AND PERSONAL HYGIENE PRIOR TO THE END OF THE WORK SHIFT
WHENEVER THE WORK PROCESSES
SO REQUIRE.
EMPLOYEES IN THE UNIT WILL BE PERMITTED TO WEAR THEIR UNIFORMS HOME
AND TO WORK IF THEY SO
DESIRE. UNIFORMS ARE GOVERNMENT PROPERTY AND SHALL BE TREATED AS
SUCH AT HOME AS WELL AS ON
DUTY. ADEQUATE LOCKER SPACE IF DESIRED, WILL BE PROVIDED ALL
EMPLOYEES.
THE EVIDENCE ESTABLISHES THAT THE PARTIES INTENDED THROUGH THE ABOVE
LANGUAGE COVERING CLEANUP TIME AND PERSONAL HYGIENE TO PRESERVE A LONG
STANDING POLICY OF THE RESPONDENT PERMITTING EMPLOYEES TEN MINUTES IN
PAY STATUS FOR CLEANUP AND PERSONAL HYGIENE WHEN THE HEAD OF A
DEPARTMENT DETERMINED THAT THE WORK PROCESSES SO REQUIRED. FURTHER, THE
ABOVE PROVISION RELATING TO THE WEARING OF UNIFORMS ENCOMPASSED A NEW
POLICY ESTABLISHED BY THE RESPONDENT OF PERMITTING EMPLOYEES, WHO CHOSE
TO DO SO, TO WEAR THEIR UNIFORMS TO AND FROM WORK. /1/
SHORTLY AFTER A JUNE 7, 1972, MEETING BETWEEN THE RESPONDENT'S HEAD
NURSES AND ITS ASSISTANT DIRECTOR, WHERE THERE WAS A DISCUSSION
CONCERNING THE INTERPRETATION OF THE ABOVE CLAUSES IN THE AGREEMENT,
HEAD NURSE MARTHA MARONEY INFORMED JOSEPH H. FOLCKEMER, A UNION STEWARD
AND A NURSING ASSISTANT, THAT HE COULD NOT BE GRANTED TEN MINUTES TO
CLEAN UP BEFORE QUITTING WORK EACH DAY. FOLCKEMER HAD INDICATED THAT HE
WANTED THIS TIME BECAUSE HE WISHED TO CHANGE OUT OF HIS UNIFORM.
MARONEY EXPLAINED THAT CLEANUP TIME WAS NOT PERMITTED AT 3:50 P.M.
BECAUSE EMPLOYEES COULD WEAR THEIR UNIFORMS HOME, ALTHOUGH NOBODY WOULD
BE DENIED THE RIGHT TO CLEAN UP IF NEEDED. NURSING ASSISTANTS WERE
ADVISED THAT THEY DID NOT HAVE PERSONAL HYGIENE TIME, AS SUCH, AND THAT
THEY WERE TO LEAVE AT 4:00 P.M. OR AT THE END OF THEIR PARTICULAR SHIFT.
AS A RESULT OF THE DISCUSSION BETWEEN MARONEY AND FOLCKEMER, THE
COMPLAINANT REQUESTED A MEETING WITH MANAGEMENT TO DISCUSS THE QUESTION
OF CLEANUP TIME. SUBSEQUENTLY, AT A MEETING HELD WITH THE COMPLAINANT
ON JULY 7, 1972, MANAGEMENT INDICATED THAT IT WAS NOT DENYING EMPLOYEES
PERSONAL HYGIENE TIME - THAT THERE WAS NO POLICY CHANGE IN THIS REGARD.
IN JUNE OR JULY 1972, THE COMPLAINANT COMPLAINED TO THE RESPONDENT'S
PERSONNEL OFFICER, MARCELLUS M. LANG, THAT SOME EMPLOYEES WERE BEING
DENIED CLEANUP TIME PRIOR TO A SHIFT END. AN AFFIDAVIT PREPARED BY
FOLCKEMER ON OCTOBER 13, 1972, AND SIGNED BY NINE NURSING ASSISTANTS AND
THE UNION STEWARD, STATED THAT ON OR ABOUT JUNE 7, 1972, THEY WERE TOLD
BY THE NURSING SUPERVISOR THAT THEY NO LONGER WOULD BE ALLOWED TEN
MINUTES PERSONAL HYGIENE TIME BECAUSE MANAGEMENT HAD CANCELLED IT; THAT
IN THE PAST THEY HAD RECEIVED SUCH TIME; AND THAT SINCE JUNE 7, 1972,
THEY HAVE NOT RECEIVED ANY PERSONAL HYGIENE TIME. FOLCKEMER TESTIFIED
THAT HE HAD NEVER BEEN DENIED CLEANUP TIME WHEN IT WAS NEEDED AND DID
NOT BELIEVE THAT HE WOULD BE DENIED SUCH TIME PRIOR TO THE END OF HIS
SHIFT IF IT WAS NEEDED. HOWEVER, WITH REGARD TO CHANGING OUT OF UNIFORM
AND WASHING UP AT THE END OF THE SHIFT, HE TESTIFIED THAT "WE HAVE TO DO
IT ON OUR OWN TIME." THUS, HE TESTIFIED THAT THE BASIS OF THE EMPLOYEES'
COMPLAINT IN THIS MATTER WAS THAT "WE WANT TO CHANGE OUR UNIFORMS AND
WASH UP 10 MINUTES PRIOR TO QUITTING TIME." PERSONNEL OFFICER LANG
TESTIFIED, WITHOUT CONTRADICTION, THAT UPON RECEIVING FROM THE
COMPLAINANT A LIST OF NAMES OF EMPLOYEES ALLEGEDLY DENIED PERSONAL
HYGIENE TIME, HE INVESTIGATED THE MATTER AND LEARNED THAT NOBODY WAS
DENIED SUCH TIME WHERE THE WORK PROCESS SO REQUIRED THAT IT BE GIVEN.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT, IRRESPECTIVE OF RIGHTS
PREVIOUSLY ACCORDED EMPLOYEES TO CLEAN UP TEN MINUTES BEFORE SHIFT END,
THE PARTIES' NEGOTIATED AGREEMENT OF APRIL 13, 1972, SUPERSEDED THE
FORMER PRACTICE AND THE LANGUAGE CONTAINED IN ARTICLE 35 NECESSARILY WAS
DISPOSITIVE AS TO RIGHTS ACCORDED EMPLOYEES TO CLEAN UP BEFORE THE END
OF A SHIFT. NOTING THAT THE PARTIES' DISPUTE HEREIN CONCERNED THE
PROPER INTERPRETATION OF THE PHRASE CONTAINED IN ARTICLE 35, "WHENEVER
THE WORK PROCESSES SO REQUIRE," THE ADMINISTRATIVE LAW JUDGE CONCLUDED
THAT THE DISPUTE, IN EFFECT, INVOLVED A DETERMINATION BASED ON THE
APPLICATION AND INTERPRETATION OF THE PARTIES' AGREEMENT WHICH, PURSUANT
TO THE TERMS OF THE AGREEMENT AND SECTION 13(A) OF THE ORDER, MUST BE
RESOLVED THROUGH THE NEGOTIATED GRIEVANCE PROCEDURE'. UNDER THESE
CIRCUMSTANCES, THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE ASSISTANT
SECRETARY LACKED JURISDICTION TO ENTERTAIN THE MATTER AND RECOMMENDED
THAT THE COMPLAINT BE DISMISSED.
AS NOTED ABOVE, ARTICLE 35 OF THE PARTIES' NEGOTIATED AGREEMENT
PROVIDES, IN PART, THAT EMPLOYEES WILL BE PERMITTED A TEN-MINUTE PERIOD
OF TIME IN A PAY STATUS FOR CLEANUP AND PERSONAL HYGIENE PRIOR TO THE
END OF THE WORK SHIFT, "WHENEVER THE WORK PROCESSES SO REQUIRE." IN
AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, I FIND THAT THE
COMPLAINANT, BY AGREEING TO THE ABOVE-QUOTED PROVISION, CLEARLY AND
UNEQUIVOCALLY WAIVED ITS RIGHT TO INSIST UPON AN UNQUALIFIED PRIVILEGE
TO CLEAN UP TEN MINUTES BEFORE COMPLETING A SHIFT, IRRESPECTIVE OF PAST
PRACTICE. /2/ FURTHER, I FIND THAT THE COMPLAINANT HAS NOT MET THE
BURDEN OF PROVING THAT THE RESPONDENT'S IMPLEMENTATION OF THE AGREEMENT
IN THIS REGARD CONSTITUTED A UNILATERAL CHANGE IN THE AGREED-UPON TERMS
AND CONDITIONS OF EMPLOYMENT. THUS, THERE WAS NO EVIDENCE PRESENTED BY
THE COMPLAINANT THAT IN ANY SPECIFIC INSTANCE WERE UNIT EMPLOYEES DENIED
CLEANUP AND PERSONAL HYGIENE TIME "WHENEVER THE WORK PROCESSES SO
REQUIRE(D)." NOR, IS THERE ANY EVIDENCE THAT ANY OF THE RESPONDENT'S
CONDUCT HEREIN WAS MOTIVATED BY ANTI-UNION CONSIDERATIONS.
UNDER ALL OF THESE CIRCUMSTANCES, I FIND THAT THE EVIDENCE IS
INSUFFICIENT TO ESTABLISH THAT THE RESPONDENT VIOLATED SECTION 19(A)(2)
AND (6) OF THE ORDER. ACCORDINGLY, IN AGREEMENT WITH THE ADMINISTRATIVE
LAW JUDGE, I SHALL ORDER THAT THE COMPLAINT HEREIN BE DISMISSED IN ITS
ENTIRETY.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 35-2624(CA) BE,
AND IT HEREBY IS, DISMISSED IN ITS ENTIRETY.
DATED, WASHINGTON, D.C.
JANUARY 8, 1974
/1/ PRIOR TO THE ISSUANCE OF THE NEW POLICY, EMPLOYEES WHO WERE
REQUIRED TO WEAR UNIFORMS ON DUTY WERE NOT PERMITTED TO WEAR THEM TO AND
FROM WORK; HOWEVER, THEY WERE ALLOWED TEN MINUTES PRIOR TO THE END OF
THEIR SHIFT TO CHANGE OUT OF UNIFORM. THE EVIDENCE ESTABLISHED THAT IT
WAS ROUTINE FOR NURSING ASSISTANTS TO UTILIZE THE TIME ALLOWED FOR
UNIFORM CHANGE AT THE END OF THEIR SHIFTS FOR CLEANUP AND PERSONAL
HYGIENE, AS WELL AS FOR CHANGING UNIFORMS. ON FEBRUARY 10, 1972, THE
RESPONDENT ISSUED A MEMORANDUM ON "HOURS OF DUTY" WHICH INCLUDED THE
FOLLOWING STATEMENT: "EMPLOYEES OF THIS CENTER ARE PERMITTED TO WEAR
UNIFORMS TO AND FROM WORK. THEREFORE, NO TIME WILL BE SET ASIDE WITHIN
THEIR SCHEDULED TOUR OF DUTY NOR WILL ANY ADDITIONAL TIME BE ADDED TO
HOURS OF DUTY, FOR THE PURPOSE OF CHANGING INTO OR OUT OF UNIFORM."
/2/ CF. NASA, KENNEDY SPACE CENTER, KENNEDY SPACE CENTER, FLORIDA,
A/SLMR NO. 223.
VETERANS ADMINISTRATION CENTER
BATH, NEW YORK
AND
LOCAL 491, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
BEFORE: WILLIAM NAIMARK, ADMINISTRATIVE LAW JUDGE
APPEARANCES:
GEORGE TILTON, ESQ.
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET, N.W.
WASHINGTON, D.C.
FOR THE COMPLAINANT.
JOHN S. MEARS, ESQ.
VETERANS ADMINISTRATION
810 VERMONT AVENUE, N.W.
WASHINGTON, D.C.
FOR THE RESPONDENT.
THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491 (HEREIN CALLED THE
ORDER) ARISING PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON
DECEMBER 14, 1972 BY THE REGIONAL ADMINISTRATOR OF THE UNITED STATES
DEPARTMENT OF LABOR, LABOR-MANAGEMENT SERVICES ADMINISTRATION, NEW YORK
REGION.
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 491 (HEREIN CALLED
THE COMPLAINANT) INITIATED THIS MATTER BY FILING A COMPLAINT ON NOVEMBER
7, 1972 AGAINST VETERANS ADMINISTRATION CENTER, BATH, NEW YORK (HEREIN
CALLED THE RESPONDENT.) THE COMPLAINT ALLEGED THAT THE COMPLAINANT AND
RESPONDENT NEGOTIATED A CONTRACT IN MARCH, 1972 PROVIDING FOR A TEN
MINUTE PERIOD FOR CLEAN-UP AND PERSONAL HYGIENE TIME, IN A PAY STATUS,
TO BE GRANTED EMPLOYEES PRIOR TO THE END OF WORK SHIFTS. IT WAS FURTHER
ALLEGED THAT NURSING ASSISTANTS WERE DENIED SUCH TEN MINUTE PERIOD ON OR
ABOUT JUNE 7 OR 8, 1972 AS A RESULT OF A RESTRICTIVE INTERPRETATION BY
MANAGEMENT OF ARTICLE 35 OF THE CONTRACT BETWEEN THE PARTIES. BY
DEPRIVING THE SAID EMPLOYEES OF SUCH TIME AND FAILING TO CONFER IN A
MEANINGFUL MANNER WITH RESPECT THERETO, THE COMPLAINT AVERS A VIOLATION
OF SECTIONS 19(A)(2) AND (6) OF THE ORDER.
A HEARING WAS HELD BEFORE THE UNDERSIGNED ON MAY 31 AND JUNE 1, 1973
AT BATH, NEW YORK. BOTH PARTIES WERE REPRESENTED BY COUNSEL AND
AFFORDED FULL OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO
EXAMINE AND CROSS-EXAMINE WITNESSES. THEREAFTER RESPONDENT AND
COMPLAINANT FILED BRIEFS ON JULY 13 AND JULY 16, 1973 RESPECTIVELY WHICH
HAVE BEEN DULY CONSIDERED BY THE UNDERSIGNED.
THE UNION HEREIN CONTENDS MANAGEMENT UNILATERALLY CHANGED A CONDITION
OF EMPLOYMENT IN RESPECT TO NURSING DEPARTMENT EMPLOYEES WHICH HAD BEEN
GRANTED THEM UNDER THE CONTRACT BETWEEN THE PARTIES. IT MAINTAINS THAT
WASH UP, OR CLEAN-UP TIME PRIOR TO THE END OF A SHIFT WAS ACCORDED ALL
UNIT EMPLOYEES PRIOR TO THE AGREEMENT, AND THEREAFTER THE NURSING
DEPARTMENT DID NOT RECEIVE SUCH TIME BASED ON AN ERRONEOUS
INTERPRETATION OF SAID CONTRACT. THE UNION INSISTS THE EMPLOYER IS
JUSTIFYING ITS ACTION ON THE GROUND THAT EMPLOYEES ARE NOW PERMITTED TO
WEAR UNIFORMS HOME, AND ACCORDINGLY NO TIME IS NEEDED TO CHANGE CLOTHING
BEFORE GOING HOME. IT IS URGED THAT CLEAN UP TIME IS A SEPARATE RIGHT
HAVING NO RELATION TO CHANGING UNIFORMS, AND ITS CANCELLATION WITHOUT
CONSULTATION WITH THE BARGAINING REPRESENTATIVE IS VIOLATIVE OF THE ACT.
THE UNION SEEKS RESTORATION OF CLEAN UP TIME FOR ALL EMPLOYEES TEN
MINUTES PRIOR TO SHIFT END, COMPENSATION TO ALL EMPLOYEES DENIED SAME,
AND THREE DAYS' ADMINISTRATIVE LEAVE TO ALL UNION OFFICERS AND STEWARDS
IN ORDER TO "EXPLAIN THE MEANING OF THE UNFAIR LABOR PRACTICE AND TO
REASSURE EMPLOYEES OF THEIR RIGHTS."
RESPONDENT DENIES THE COMMISSION OF UNFAIR LABOR PRACTICES. IT
INSISTS THE ISSUE IS ONE OF CONTRACT INTERPRETATION AND APPLICATION OF
THE CLAUSES IN THE CONTRACT DEALING WITH CLEAN-UP TIME AND THE WEARING
OF UNIFORMS. MANAGEMENT CONTENDS CLEAN-UP TIME, AS IT SHOULD BE
GRANTED, IS STILL ACCORDED THE EMPLOYEES IN THE SAME MANNER AS
PREVIOUSLY. FURTHER, THERE WAS NO UNILATERAL CHANGE OF A WORKING
CONDITION, BUT AN APPLICATION OF THE PROVISIONS OF THE AGREEMENT IN
RESPECT TO CLEAN-UP TIME AS DISCUSSED AND AGREED UPON BY THE PARTIES
DURING NEGOTIATIONS. THUS, EVEN IF THE ISSUE DOES CONCERN THE
COMMISSION OF AN UNFAIR LABOR PRACTICE, THE CONDUCT OF RESPONDENT DID
NOT VIOLATE THE ORDER.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS:
1. LOCAL 491, NATIONAL FEDERATION OF FEDERAL EMPLOYEES IS, AND HAS
BEEN AT ALL TIMES MATERIAL HEREIN, THE EXCLUSIVE BARGAINING
REPRESENTATIVE OF ALL PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES,
INCLUDING CANTEEN EMPLOYEES, AT THE VETERANS ADMINISTRATION CENTER,
BATH, NEW YORK.
2. MARCELLUS M. LANG, PERSONNEL OFFICER, TESTIFIED, AND I FIND, THAT
COLLECTIVE BARGAINING NEGOTIATIONS COMMENCED IN JANUARY, 1972 BETWEEN
COMPLAINANT AND RESPONDENT. DURING THESE NEGOTIATIONS MANAGEMENT TOLD
THE UNION THAT VA REGULATIONS HAD BEEN CHANGED SO THAT IF AN EMPLOYEE IS
PERMITTED TO WEAR HIS UNIFORM HOME, HE COULD NOT BE GIVEN TIME DURING
HIS REGULAR DUTY TIME TO DO SO. LANG TESTIFIED, AND IT IS UNDENIED,
THAT THE COMPLAINANT AND RESPONDENT DISCUSSED UNIFORM CHANGE TIME, AS
WELL AS CLEAN UP OR PERSONAL HYGIENE TIME, DURING NEGOTIATIONS.
FURTHER, THAT THE UNION WANTED, BASICALLY, WHAT IS CONTAINED IN ARTICLE
35 OF THE CONTRACT EXECUTED BETWEEN THE PARTIES WITH RESPECT TO UNIFORM
CHANGE AND CLEAN UP TIME.
3. ON JANUARY 19, 1972 THE VA REGULATIONS (MP-5 PART 1, CHAPTER 610)
/1/ WERE CHANGED SO THAT FIELD STATION HEADS MIGHT PERMIT EMPLOYEES TO
WEAR UNIFORMS TO AND FROM WORK, OR REQUIRE THAT UNIFORMS BE CHANGED AT
THE STATIONS. A MEETING OF RESPONDENT'S NURSES WAS HELD ON JANUARY 19,
1972 AT WHICH TIME CHIEF NURSE RIESELMAN TOLD THEM THAT NO ON DUTY TIME
WILL BE ALLOWED FOR THE PURPOSE OF CHANGING UNIFORMS. /2/
4. THE POLICY OF RESPONDENT REGARDING HOURS OF DUTY FOR EMPLOYEES OF
THE CENTER WAS ESTABLISHED BY A MEMORANDUM /3/ ISSUED FEBRUARY 10, 1972.
THIS MEMORANDUM PROVIDED THAT EMPLOYEES OF THE CENTER WERE PERMITTED TO
WEAR UNIFORMS TO AND FROM WORK; AND FURTHER, THAT NO TIME WOULD BE SET
ASIDE WITHIN THE "SCHEDULED TOUR OF DUTY . . . . FOR THE PURPOSE OF
CHANGING INTO AND OUT OF UNIFORM."
5. ON MARCH 22, 1972 COMPLAINANT AND RESPONDENT EXECUTED A "CONTRACT
AGREEMENT," /4/ EFFECTIVE BY ITS TERMS FROM APRIL 13, 1972 UNTIL APRIL
13, 1974.
6. THE SAID CONTRACT BETWEEN THE PARTIES CONTAINED INTER ALIA THE
FOLLOWING PROVISION:
THE VA CENTER AGREES TO PERMIT EMPLOYEES A 10-MINUTE PERIOD OF TIME
IN A PAY STATUS FOR
CLEAN UP AND PERSONAL HYGIENE PRIOR TO THE END OF THE WORK SHIFT
WHENEVER THE WORK PROCESSES
SO REQUIRES.
EMPLOYEES IN THE UNIT WILL BE PERMITTED TO WEAR THEIR UNIFORMS HOME
AND TO WORK IF THEY SO
DESIRE. UNIFORMS ARE GOVERNMENT PROPERTY AND SHALL BE TREATED AS
SUCH AT HOME AS WELL AS ON
DUTY. ADEQUATE LOCKER SPACE IF DESIRED, WILL BE PROVIDED ALL
EMPLOYEES.
7. BOTH OF THE AFOREMENTIONED CLAUSES CONTAINED IN SAID ARTICLE 35
OF THE CONTRACT WERE SET FORTH IN A MEMORANDUM /5/ ISSUED ON MARCH 28,
1972 BY RESPONDENT'S DIRECTOR, A. TOMASULO, M.D.
8. IT IS UNDENIED, AND I FIND, THAT PRIOR TO FEBRUARY 10, 1972
EMPLOYEES OF THE CENTER WERE NOT PERMITTED TO WEAR THEIR UNIFORMS HOME,
AND ALL SAID EMPLOYEES WERE GRANTED 10 MINUTES BEFORE QUITTING TIME, OR
THE END OF A SHIFT, TO CHANGE FROM THEIR UNIFORMS TO REGULAR CLOTHES.
UNIFORMS WERE CHANGED IN THE LOCKER ROOMS AT WHICH TIME SOME EMPLOYEES
WOULD ALSO WASH UP BEFORE LEAVING THE HOSPITAL.
9. ASSISTANT CHIEF NURSE ELIZABETH M. ALAMO TESTIFIED, AND I FIND
THAT AT A MEETING OF NURSES ON MAY 3, 1972 IT WAS REPORTED THAT SOME
NURSING ASSISTANTS WERE LEAVING AT 3:50 (TEN MINUTES BEFORE SHIFT END)
ALTHOUGH THEY WERE NOT PERMITTED TO DO SO. ACCORDINGLY, NURSE ALAMO
ASKED DONALD L. ZIEGENHORN, ASSISTANT DIRECTOR OF THE CENTER, TO CLARIFY
THE MATTER, WHICH RESULTED IN A MEETING OF HEAD NURSES ON JUNE 7, 1972.
10. ON JUNE 7, 1972 ALL HEAD NURSES ATTENDED A MEETING AT WHICH
ZIEGENHORN SPOKE REGARDING THE CONFUSION REGARDING UNIFORM CHANGE TIME
AND CLEAN UP TIME. NURSE ALAMO TESTIFIED, AND I FIND THAT ZIEGENHORN
TOLD THEM CLEAN UP TIME IS PERMITTED IF THE WORK SITUATION REQUIRED
IT-THAT IF AN EMPLOYEE SOILED HIMSELF WHILE WORKING, HE SHOULD BE
ALLOWED TO CLEAN UP AT ANY TIME. ZIEGENHORN EXPLAINED TO THE NURSES
THAT SINCE THE EMPLOYEES WERE ENTITLED TO WEAR UNIFORMS HOME, THEY WERE
NOT PERMITTED TO LEAVE AT 3:50 UNLESS A HEAD NURSE DETERMINED THERE WAS
A SPECIAL REASON JUSTIFYING IT.
11. SUBSEQUENT TO THE MEETING ON JUNE 7, 1972, REFERRED TO IN
PARAGRAPH 10 ABOVE, HEAD NURSE MARTHA MARONEY TOLD JOSEPH H. FOLCKEMER,
UNION STEWARD AND NURSING ASSISTANT, THAT HE COULDN'T BE GRANTED 10
MINUTES TO CLEAN UP BEFORE QUITTING WORK EACH DAY. SHE EXPLAINED THAT
CLEAN UP TIME WAS NOT PERMITTED AT 3:50 SINCE THE EMPLOYEES COULD WEAR
THEIR UNIFORMS HOME, ALTHOUGH NOBODY WOULD BE DENIED THE RIGHT TO CLEAN
UP IF NEEDED. NURSING ASSISTANTS WERE TOLD THEY DID NOT HAVE PERSONAL
HYGIENE TIME, AS SUCH, AND THEY WERE TO LEAVE AT 4:00 P.M. OR AT THE END
OF A PARTICULAR SHIFT.
12. AS A RESULT OF THE DISCUSSION BETWEEN HEAD NURSE MARONEY AND
NURSING ASSISTANT FOLCKEMER, THE UNION REQUESTED A MEETING WITH
MANAGEMENT TO DISCUSS THE QUESTION OF CLEAN UP TIME. BENNETT C. JOSEPH,
JR., 1ST VICE-PRESIDENT OF COMPLAINANT, TESTIFIED AND I FIND THAT A
MEETING WAS HELD ON JULY 7, 1972 AT WHICH TIME MANAGEMENT SAID IT WAS
NOT DENYING EMPLOYEES PERSONAL HYGIENE TIME-THAT THERE WAS NO POLICY
CHANGE. JOSEPH TESTIFIED THE TERMS "UNIFORM CHANGE TIME" AND "CLEAN UP
TIME" WERE USED INTERCHANGEABLY, AND SOME INDIVIDUALS FELT THERE WAS A
DISTINCTION BETWEEN THE TWO TERMS, WHILE OTHERS CONSIDERED THEM BOTH AS
ONE AND THE SAME THING.
13. IN JUNE OR JULY, 1972 THE UNION COMPLAINED TO LANG THAT SOME MEN
WERE BEING DENIED, PRIOR TO A SHIFT END, CLEAN UP TIME. LANG TESTIFIED,
AND I FIND THAT HE OBTAINED THE NAMES OF THOSE ALLEGEDLY DENIED SUCH
TIME, INVESTIGATED THE MATTER, AND LEARNED THAT NOBODY WAS DENIED CLEAN
UP TIME WHERE THE WORK PROCESS SO REQUIRED IT TO BE GIVEN.
14. SOME DISPARITY EXISTS IN THE RECORD AS TO THE PRACTICE OF
ALLOWING CLEAN UP, OR PERSONAL HYGIENE TIME, PRIOR TO MAY OR JUNE, 1972.
FOLCKEMER TESTIFIED THAT NURSING ASSISTANTS CUSTOMARILY LEFT AT 3:50
P.M. (10 MINUTES BEFORE THE END OF THE SHIFT) FOR UNIFORM CHANGE AND
PERSONAL HYGIENE. NURSE ALAMO TESTIFIED THAT THE 10 MINUTES PREVIOUSLY
GRANTED THE ASSISTANTS BEFORE THE SHIFT END WAS TO CHANGE UNIFORMS, AND
NOT TO ATTEND TO PERSONAL HYGIENE. EDWARD G. DALEY, MAINTENANCE
EMPLOYEE AND UNION STEWARD, TESTIFIED THAT HE RECEIVED 10 MINUTES TO
CLEAN UP AS A ROUTINE MATTER BEFORE HIS SHIFT END, ALTHOUGH HE CHANGED
HIS UNIFORM ALSO. BOTH JOHN CALLEAR, CHIEF OF BUILDING MANAGEMENT AND
LANG, TESTIFIED THAT PRIOR TO FEBRUARY, 1972, THE CHIEF OF EACH SECTION
OR DEPARTMENT DECIDED WHETHER TO GRANT CLEAN UP TIME 10 MINUTES BEFORE
QUITTING TIME. LANG ALSO ADDED THAT IF THE WORK SITUATION REQUIRED THE
EMPLOYEES WERE GIVEN THIS 10 MINUTE PERIOD FOR PERSONAL HYGIENE.
IN VIEW OF THE CORROBORATIVE TESTIMONY BY CALLEAR AND LANG IN RESPECT
TO THIS MATTER, AND THE FACT THAT FOLCKEMER UTILIZED THE TIME PRIMARILY
TO CHANGE HIS CLOTHES, I FIND THAT, AT LEAST PRIOR TO THE CONTRACT,
EMPLOYEES OF RESPONDENT WERE GRANTED 10 MINUTES CLEAN UP TIME BEFORE THE
END OF A SHIFT AT THE DIRECTION OF THE DEPARTMENT OR SECTION HEAD-ALL
APART FROM THE GRANTING TO EMPLOYEES 10 MINUTES BEFORE THE SHIFT END FOR
THE PURPOSE OF CHANGING THEIR UNIFORMS. I FURTHER FIND THAT PRIOR TO
THE CONTRACT NURSING ASSISTANTS WERE, AT LEAST ON SOME OCCASIONS,
GRANTED 10 MINUTES BEFORE SHIFT END TO CLEAN UP AND ATTEND TO PERSONAL
HYGIENE AS WELL AS CHANGE THEIR UNIFORMS BEFORE LEAVING THE PREMISES.
15. EMPLOYEES ELSIE CAMPBELL, EDWARD R. DALBY, AND JOHN CALLEAR
TESTIFIED AND I FIND, THAT EMPLOYEES IN HOUSEKEEPING AND BUILDING
MANAGEMENT HAVE ALWAYS BEEN, AND STILL ARE, GRANTED 10 MINUTES BEFORE
THE END OF A SHIFT TO CLEAN UP BEFORE LEAVING THE CENTER AS A ROUTINE
MATTER. /6/
16. IT IS NOT DENIED BY RESPONDENT, AND I FIND, THAT SUBSEQUENT TO
MARCH 22, 1972 RESPONDENT DID NOT CONFER OR CONSULT WITH COMPLAINANT
WITH RESPECT TO DENYING TO NURSING ASSISTANTS 10 MINUTES BEFORE SHIFT
END TO CLEAN UP AS A ROUTINE MATTER, BUT THAT RESPONDENT IMPLEMENTED
UNILATERALLY THE POLICY OF NOT PERMITTING NURSING ASSISTANTS SUCH CLEAN
UP TIME UNLESS THE WORK PROCESS SO REQUIRED IN ACCORDANCE WITH THE
CONTRACT.
17. ARTICLE 36 OF THE CONTRACT BETWEEN COMPLAINANT AND RESPONDENT
PROVIDES, IN PART, AS FOLLOWS:
1. THIS PROCEDURE WILL BE THE SOLE PROCEDURE FOR PROCESSING
GRIEVANCES OVER THE
INTERPRETATION OR APPLICATION OF THE NEGOTIATED AGREEMENT. IT MAY
NOT BE USED FOR ANY OTHER
MATTERS, INCLUDING MATTERS FOR WHICH STATUTORY APPEALS PROCEDURES
EXIST . . . .
IT IS URGED BY RESPONDENT THAT, BASED ON SECTION 13(A) OF THE ORDER,
THE ASSISTANT SECRETARY LACKS JURISDICTION OF THIS MATTER. THIS SECTION
PROVIDES, IN PART, AS FOLLOWS:
"AN AGREEMENT BETWEEN AN AGENCY AND A LABOR ORGANIZATION SHALL
PROVIDE A PROCEDURE,
APPLICABLE ONLY TO THE UNIT, FOR THE CONSIDERATION OF GRIEVANCES OVER
THE INTERPRETATION OR
APPLICATION OF THE AGREEMENT. A NEGOTIATED GRIEVANCE PROCEDURE MAY
NOT COVER ANY OTHER
MATTERS . . . AND SHALL BE THE EXCLUSIVE PROCEDURE AVAILABLE TO THE
PARTIES AND THE EMPLOYEES
IN THE UNIT FOR RESOLVING SUCH GRIEVANCES."
RESPONDENT CONTENDS THAT SINCE THE AGREEMENT WITH COMPLAINANT
CONTAINS A GRIEVANCE PROCEDURE, /7/ THE DISPUTE HEREIN MUST BE HANDLED
THEREUNDER SINCE IT IS ESSENTIALLY A MATTER OF CONTRACT INTERPRETATION
OR APPLICATION. FURTHER, IT ADVERTS TO ASSISTANT SECRETARY'S REPORT NO.
49 WHICH RECITES THAT WHERE THERE IS A DISAGREEMENT OVER THE
INTERPRETATION OF A CONTRACT PROVIDING FOR A PROCEDURE TO RESOLVE THE
PROBLEM AS AN UNFAIR LABOR PRACTICE, BUT WILL LEAVE THE PARTIES TO THEIR
REMEDY UNDER THE CONTRACT.
COMPLAINANT ASSERTS THAT THE EMPLOYER HAS UNILATERALLY CHANGED THE
CONDITIONS IN THE CONTRACT IN VIOLATION OF THE ORDER. IT MAINTAINS THE
NURSING ASSISTANTS ARE ALLOWED 10 MINUTES TO CLEAN UP PRIOR TO A SHIFT
END UNDER THE AGREEMENT. HENCE, DEPRIVING THESE EMPLOYEES OF THIS
ENTITLEMENT WITHOUT CONSULTING THE UNION WAS A VIOLATION OF THE CONTRACT
AND A UNILATERAL DETERMINATION THAT CONSTITUTED AN UNFAIR LABOR
PRACTICE. THE UNION CITES VETERANS ADMINISTRATION HOSPITAL, CHARLESTON,
SOUTH CAROLINA, A/SLMR NO. 87, AS AUTHORITY FOR ITS POSITION.
THE CRUX OF THE DISPUTE HEREIN CENTERS ON WHETHER THE NURSING
ASSISTANTS ARE ENTITLED TO 10 MINUTES' CLEAN UP TIME BEFORE THEIR
SHIFT'S END, APART FROM THE REQUIREMENTS DICTATED BY THEIR WORK
ROUTINES. THE COMPLAINANT INSISTS THIS WAS ACCORDED THE EMPLOYEES PRIOR
TO THE CONTRACT AND, MOREOVER, THE NEGOTIATED AGREEMENT PRESERVED THIS
TIME AS AN UNQUALIFIED RIGHT. MANAGEMENT URGES THAT EMPLOYEES ARE ONLY
DUE THIS CLEAN UP TIME BEFORE SHIFT END IF THE WORK PROCESSES SO
REQUIRE, AS SET FORTH IN ARTICLE 35 OF THE NEGOTIATED AGREEMENT.
IRRESPECTIVE OF RIGHTS PREVIOUSLY ACCORDED EMPLOYEES TO CLEAN UP 10
MINUTES BEFORE SHIFT END, THE AGREEMENT BETWEEN THE PARTIES FINALIZED
THE ARRANGEMENT WHICH WOULD GOVERN AFTER APRIL 13, 1972. HAVING
DISCUSSED THE QUESTION DURING NEGOTIATIONS, THE PARTIES RESOLVED THE
MATTER (ALBEIT GIVING RISE TO FUTURE PROBLEMS) BY AGREEING TO PERMIT
EMPLOYEES 10 MINUTES CLEAN UP TIME BEFORE SHIFT END "WHENEVER THE WORK
PROCESSES SO REQUIRE." THUS, UPON EXECUTING THE CONTRACT CONTAINING THIS
PROVISION, THE COMPLAINANT HAS WAIVED ITS RIGHT TO INSIST UPON AN
UNQUALIFIED PRIVILEGE TO CLEAN UP 10 MINUTES BEFORE COMPLETING A WORK
DAY. THE CLAUSE ENTITLES EMPLOYEES TO CLEAN UP TIME BASED UPON THE
DICTATES OF THE WORK PROCESS, AND I CANNOT SUBSCRIBE TO COMPLAINANT'S
VIEW THAT EMPLOYEES ARE ENTITLED TO THIS RIGHT, UNRESERVEDLY, OR AS
FREELY GRANTED IN THE PAST. IN MY OPINION, THE CONTRACT SUPERSEDES THE
FORMER PRACTICE AS TO CLEAN UP TIME, AND THE LANGUAGE IN ARTICLE 35 MUST
NECESSARILY BE DISPOSITIVE AS TO RIGHTS ACCORDED WORKERS TO CLEAN UP
BEFORE QUITTING TIME.
IN URGING THAT RESPONDENT HAS UNILATERALLY ALTERED CONDITIONS OF
EMPLOYMENT IN VIOLATION OF SECTION 19(A)(6) OF THE ORDER, COMPLAINANT
RELIES UPON VETERANS ADMINISTRATION HOSPITAL, CHARLESTON, SOUTH
CAROLINA, SUPRA. IT ARGUES THAT THE CITED CASE IS CONTROLLING. THIS
ARGUMENT IS REJECTED. IN THE SOUTH CAROLINA CASE THE HOSPITAL HAD
UNILATERALLY CHANGED THE TOURS OF DUTY OF CERTAIN NURSING SERVICE
EMPLOYEES-ALL CONTRARY TO, AND IN VIOLATION OF, THE AGREEMENT BETWEEN
THE PARTIES. THE ASSISTANT SECRETARY FOUND A VIOLATION OF THE ORDER
STEMMING FROM UNILATERAL ACTION CONTRAVENING THE NEGOTIATED AGREEMENT,
AND, AS SUCH, THE ACTIVITY FLOUTED THE ORDER'S BARGAINING REQUIREMENTS.
IN THE CASE AT BAR, THE RESPONDENT DENIED 10 MINUTES CLEAN UP TIME TO
THE NURSING ASSISTANTS BEFORE THE SHIFT END BECAUSE IT DEEMED THE WORK
PROCESS NOT TO REQUIRE SUCH PRIVILEGE. THUS, THE ACTION TAKEN BY
MANAGEMENT HEREIN WAS BASED ON AN APPLICATION, AS WELL AS
INTERPRETATION, OF THE CONTRACT, SPECIFICALLY THE PHRASE "WHENEVER THE
WORK PROCESSES SO REQUIRE," AS CONTAINED IN THE PROVISION IN ARTICLE 35
DEALING WITH CLEAN UP TIME AND PERSONAL HYGIENE. APART FROM THE
CORRECTNESS OF ITS APPLICATION OR INTERPRETATION OF THE LANGUAGE IN
QUESTION, RESPONDENT PREDICATED ITS CONDUCT ON, AND RELIED UPON, THE
AGREEMENT TO SUSTAIN ITS ACTION. RATHER THAN INITIATING ACTION IN
OPPOSITION TO THE CONTRACT, THE EMPLOYER IN THE INSTANT CASE IS SEEKING
TO SUPPORT ITS POSITION VIA THE INSTRUMENT ITSELF.
IT MAY WELL BE THAT THE UNION AND MANAGEMENT HAVE VARIED IDEAS OR
THOUGHTS AS TO THE MEANING OF THE PHRASE "WHENEVER THE WORK PROCESSES SO
REQUIRE." COMPLAINANT MIGHT ARGUABLY CONCLUDE THAT NURSING ASSISTANTS'
WORK ROUTINE REQUIRES THEY BE ALLOTTED 10 MINUTES BEFORE LEAVING FOR
PERSONAL HYGIENE. BUT THIS ARGUMENT ALSO CALLS FOR AN INTERPRETATION OF
THE CONTRACTUAL PHRASE, AND IN EACH INSTANCE WHERE A DISAGREEMENT
BETWEEN THE UNION AND THE EMPLOYER ARISES, A RESOLUTION OF THE DISPUTE
INVOLVES AN APPLICATION OF THE CONTRACT ITSELF. IN SUCH POSTURE,
SECTION 13(A) OF THE ORDER, AS EMPHASIZED BY THE ASSISTANT SECRETARY IN
REPORT NO. 49, PROVIDES THAT SUCH DISPUTES BE RESOLVED UNDER A GRIEVANCE
PROCEDURE AS OUTLINED IN THE AGREEMENT BETWEEN AN AGENCY AND A LABOR
ORGANIZATION. IF A UNION ASSERTS AN UNFAIR LABOR PRACTICE TO HAVE BEEN
COMMITTED, WHICH RESTS UPON A DISPUTE AS TO THE INTERPRETATION OF
CONTRACTUAL LANGUAGE, THE ASSISTANT SECRETARY LEAVES THE PARTIES TO THE
GRIEVANCE PROCEDURE UNDER THIS AGREEMENT.
I AM PERSUADED THAT THE EMPLOYER'S POSITION IS SOUND AND TENABLE.
THE PARTIES HEREIN, CONCERNED AS THEY ARE WITH THE RIGHTS OF NURSING
ASSISTANTS TO CLEAN UP TIME AS SPELLED OUT IN THE AGREEMENT, MUST
NECESSARILY RESOLVE THEIR DISPUTE BY MEANS OF AN APPLICATION AND
INTERPRETATION OF THE CONTRACT HEREIN. ACCORDINGLY, THEY MUST INVOKE
THE GRIEVANCE PROCEDURE AS SET FORTH IN ARTICLE 36 OF THE AGREEMENT AS
THE EXCLUSIVE METHOD OF RESOLVING THIS DISPUTE. THE AVENUE OF REDRESS
FROM THE ASSISTANT SECRETARY, THROUGH UNFAIR LABOR PRACTICE PROCEEDINGS,
IS NOT AFFORDED THE COMPLAINANT IN SUCH AN INSTANCE. IN SUM, I AM
CONSTRAINED TO CONCLUDE THAT RESPONDENT DID NOT INSTITUTE UNILATERAL
ACTION IN VIOLATION OF, OR CONTRARY TO, THE CONTRACT HEREIN. FURTHER,
THE DISPUTE AS TO WHETHER NURSING ASSISTANTS ARE ENTITLED TO 10 MINUTES
CLEAN UP TIME BEFORE SHIFT'S END IS ONE INVOLVING CONTRACT APPLICATION
AND INTERPRETATION AND THEREFORE, AS DELINEATED ABOVE, THE ASSISTANT
SECRETARY LACKS JURISDICTION TO ENTERTAIN THE MATTER. I WOULD THEREFORE
FIND THAT RESPONDENT HAS NOT VIOLATED SECTION 19(A)(1) AND (6) OF THE
ORDER.
UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS, THE
UNDERSIGNED RECOMMENDS THE COMPLAINT HEREIN AGAINST RESPONDENT BE
DISMISSED.
DATED AT WASHINGTON, D.C.
THIS 14TH DAY OF AUGUST, 1973.
/1/ RESPONDENT'S EXHIBIT 1.
/2/ RESPONDENT'S EXHIBIT 3.
/3/ RESPONDENT'S EXHIBIT 6.
/4/ COMPLAINANT'S EXHIBIT 1.
/5/ RESPONDENT'S EXHIBIT 5.
/6/ ALTHOUGH LANG'S TESTIMONY REFLECTS THAT NO SUCH POLICY EXISTS FOR
THE HOSPITAL AS A WHOLE, SUCH TESTIMONY DOES NOT NEGATE THE FACT THAT AS
TO THESE TWO DEPARTMENTS THE PRACTICE, AS INDICATED, DID EXIST AT THE
CENTER.
/7/ ARTICLE 36 OF COMPLAINANT'S EXHIBIT 1.
5 REPORT NO. 58; P. 789; FEBRUARY 10, 1975.
A PARTY TO AN ELECTION FILED OBJECTIONS TO CONDUCT ALLEGEDLY
AFFECTING THE RESULTS OF THE ELECTION BASED ON AN EVENT OCCURRING PRIOR
TO THE FILING OF THE ELECTION PETITION. THE QUESTION RAISED WAS WHETHER
AN OBJECTION BASED ON CONDUCT OCCURRING PRIOR TO THE FILING OF THE
ELECTION PETITION SHOULD BE CONSIDERED IN DETERMINING WHETHER THE
ELECTION SHOULD BE SET ASIDE.
CONDUCT OCCURRING PRIOR TO THE FILING OF THE ELECTION PETITION MAY
NOT BE CONSIDERED AS GROUNDS FOR SETTING ASIDE THE ELECTION. THIS
DECISION WOULD NOT PRECLUDE THE FILING OF A TIMELY CHARGE AND COMPLAINT
UNDER SECTION 19 OF THE ORDER WITHOUT REGARD TO THE FILING DATE OF THE
ELECTION PETITION.
5 A/SLMR 600; P. 776; CASE NOS. 22-5554(RO), 30-5781(RO); DECEMBER
18, 1975.
FEDERAL AVIATION ADMINISTRATION (FAA)
AND
FEDERAL AVIATION ADMINISTRATION,
EASTERN REGION
A/SLMR NO. 600
THIS CASE INVOLVED REPRESENTATION (RO) PETITIONS FILED BY THE FEDERAL
AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION/NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, (FASTA/NAGE) AND BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3341, (AFGE). THE FASTA/NAGE
SOUGHT AN ELECTION IN A UNIT CONSISTING OF ALL OF THE ACTIVITY'S AIRWAY
FACILITIES DIVISION EMPLOYEES ASSIGNED TO FIELD FACILITIES. THE AFGE
SOUGHT AN ELECTION IN A UNIT CONSISTING OF THE FOUR TECHNICIAN
CLASSIFICATIONS FOUND AMONG AIRWAY FACILITIES DIVISION EMPLOYEES IN THE
EASTERN REGION OF THE ACTIVITY.
THE ACTIVITY CONSIDERED THE UNIT SOUGHT BY THE FASTA/NAGE TO BE
APPROPRIATE. IN THIS REGARD, IT AGREED WITH THE FASTA/NAGE THAT THE
AIRWAY FACILITIES DIVISION EMPLOYEES DESIGNATED AS FACILITIES AND
ESTABLISHMENT (F&E) AND FIELD MAINTENANCE PARTY (FMP) SHOULD BE INCLUDED
IN THE UNIT BECAUSE, ALTHOUGH THEY ARE ASSIGNED ADMINISTRATIVELY TO THE
REGIONAL HEADQUARTERS, THEY SPEND THE MAJORITY OF THEIR TIME WORKING IN
THE FIELD. WITH RESPECT TO THE AFGE'S PETITION, BOTH THE ACTIVITY AND
THE FASTA/NAGE TOOK THE POSITION THAT A UNIT AT THE REGIONAL LEVEL WAS
INAPPROPRIATE. IN ADDITION, BOTH CONSIDERED THE UNIT CLAIMED BY THE
AFGE TO BE INCOMPLETE AS IT WAS NOT COEXTENSIVE WITH THE TWO EXISTING
UNITS COVERING THE AIRWAY FACILITIES DIVISION EMPLOYEES OF THE EASTERN
REGION OF THE ACTIVITY. THE AFGE CONTENDED, ON THE OTHER HAND, THAT A
NATIONWIDE UNIT, AS PETITIONED FOR BY THE FASTA/NAGE, WOULD NOT BE
APPROPRIATE BASED ON THE REGIONAL ORGANIZATION OF THE FAA. THUS, THE
AFGE CLAIMED THAT IT PETITIONED FOR A UNIT AT THE REGIONAL LEVEL, WHICH,
IN ITS VIEW, WAS CONSISTENT WITH THE PREVIOUS BARGAINING HISTORY AMONG
AIRWAY FACILITIES DIVISION EMPLOYEES IN THE EASTERN REGION. HOWEVER, IF
A NATIONWIDE UNIT WAS FOUND TO BE APPROPRIATE, THE AFGE TOOK THE
POSITION THAT THE AIRWAY FACILITIES DIVISION EMPLOYEES LOCATED AT THE
VARIOUS REGIONAL HEADQUARTERS SHOULD BE INCLUDED AS THEY SHARE A
COMMUNITY OF INTEREST WITH THE OTHER AIRWAY FACILITIES DIVISION
EMPLOYEES.
UNDER ALL OF THE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT A
NATIONWIDE UNIT OF ALL AIRWAY FACILITIES DIVISION EMPLOYEES, INCLUDING
EMPLOYEES DESIGNATED AS F&E AND FMP AND REGIONAL HEADQUARTERS EMPLOYEES,
SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND
DISTINCT FROM ALL OTHER FAA EMPLOYEES. THUS, THEY ALL SHARE A COMMON
MISSION AND ENJOY COMMON OVERALL SUPERVISION, PERSONNEL POLICIES AND
PRACTICES, LABOR RELATIONS POLICIES, AND, ESSENTIALLY, SIMILAR JOB
CLASSIFICATIONS, DUTIES AND WORKING CONDITIONS. FURTHER, IT WAS NOTED
THAT THERE IS SUBSTANTIAL INTERCHANGE AND TRANSFER OF SUCH EMPLOYEES
ACROSS REGIONAL BOUNDARIES AND, GENERALLY, THERE IS A COMMON AREA OF
CONSIDERATION FOR PROMOTION AND REDUCTION-IN-FORCE PROCEDURES. NOTING
FURTHER THAT SUCH UNIT WILL REDUCE FRAGMENTATION AND THAT RECOGNITION IS
AT THE LEVEL AT WHICH PERSONNEL AND LABOR RELATIONS POLICIES ARE
INITIATED, THE ASSISTANT SECRETARY FOUND THAT SUCH A UNIT WILL PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
WITH RESPECT TO THE AFGE'S PETITION, THE ASSISTANT SECRETARY NOTED
THAT, WHILE SOME INCONSISTENCY EXISTED BETWEEN THE UNIT PETITIONED FOR
BY THE AFGE AND THE TWO EXISTING CERTIFICATIONS COVERING THE EASTERN
REGION EMPLOYEES, THE AFGE DESIRED ESSENTIALLY TO REPRESENT IN ONE
REGIONWIDE UNIT THE EMPLOYEES CURRENTLY REPRESENTED BY THE FASTA/NAGE IN
TWO UNITS, THAT THE TWO UNITS ARE COVERED CURRENTLY BY ONE NEGOTIATED
AGREEMENT, AND THAT THE AFGE'S PETITION SEEKS SUBSTANTIALLY THE SAME
NUMBER OF EMPLOYEES INCLUDED CURRENTLY IN THE EXISTING UNITS.
THEREFORE, THE ASSISTANT SECRETARY DIRECTED THAT A SELF-DETERMINATION
ELECTION BE CONDUCTED AMONG THOSE EMPLOYEES CURRENTLY INCLUDED IN THE
EXISTING UNITS.
THE ASSISTANT SECRETARY FOUND THAT THERE WERE SEVERAL EXISTING
BARGAINING UNITS ENCOMPASSED WITHIN THE NATIONWIDE UNIT FOUND
APPROPRIATE WHEREIN THERE WAS AN EXCLUSIVE BARGAINING REPRESENTATIVE,
BUT NO BAR TO AN ELECTION. AS TO THE EMPLOYEES IN THOSE UNITS, THE
ASSISTANT SECRETARY DIRECTED THEY BE GIVEN SELF-DETERMINATION ELECTIONS
AS TO WHETHER OR NOT THEY DESIRED TO BE REPRESENTED IN THEIR INDIVIDUAL
UNITS. FINALLY, NOTING THE EXISTENCE OF CERTAIN BARGAINING UNITS IN
WHICH PETITIONS WERE PENDING AT THE TIME WHEN THE FASTA/NAGE PETITION
WAS FILED, AND THAT THE FASTA/NAGE PETITION WAS UNTIMELY FILED WITH
RESPECT TO THOSE PREVIOUSLY FILED PETITIONS, THE ASSISTANT SECRETARY
ORDERED THAT THE EMPLOYEES IN THOSE UNITS BE EXCLUDED FROM THE
NATIONWIDE UNIT FOUND APPROPRIATE.
ACCORDINGLY, THE ASSISTANT SECRETARY DIRECTED THAT AN ELECTION BE
CONDUCTED IN THE NATIONWIDE UNIT FOUND APPROPRIATE, AND FURTHER DIRECTED
SELF-DETERMINATION ELECTIONS BE CONDUCTED IN THE EASTERN REGION AND IN
SEVERAL OTHER EXISTING UNITS ENCOMPASSED WITHIN THE NATIONWIDE UNIT.
FEDERAL AVIATION ADMINISTRATION
AND
FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL
ASSOCIATION/NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2760
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES
AND
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, AFL-CIO, LOCAL LODGE
NO. 266 /1/
FEDERAL AVIATION ADMINISTRATION,
EASTERN REGION
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3341
AND
FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL
ASSOCIATION/NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R2-10R
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER
MADELINE JACKSON. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE
FREE FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THESE CASES, INCLUDING BRIEFS FILED BY THE
FEDERAL AVIATION ADMINISTRATION, HEREIN CALLED FAA, THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, HEREIN CALLED AFGE, /2/ AND
THE FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION/NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, HEREIN CALLED THE FASTA/NAGE, THE
ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. IN ITS PETITION IN CASE NO. 22-5554(RO), THE FASTA/NAGE SEEKS AN
ELECTION IN A UNIT CONSISTING OF ALL GENERAL SCHEDULE AND WAGE GRADE
EMPLOYEES OF THE FAA'S AIRWAY FACILITIES DIVISION ASSIGNED TO FIELD
FACILITIES, EXCLUDING PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, GUARDS, AND SUPERVISORS AS DEFINED IN EXECUTIVE
ORDER 11491, AS AMENDED, AIRWAY FACILITIES PERSONNEL ASSIGNED TO FAA
REGIONAL OFFICES, WASHINGTON HEADQUARTERS, THE NATIONAL AERONAUTICAL
FACILITIES EXPERIMENTAL CENTER, ATLANTIC CITY, NEW JERSEY, THE
AERONAUTICAL CENTER, OKLAHOMA CITY, OKLAHOMA, AND THE EMPLOYEES IN
EXCLUSIVELY RECOGNIZED UNITS SUBJECT TO CERTIFICATION OR AGREEMENT BARS.
/3/
IN CASE NO. 30-5781(RO), THE AFGE SEEKS AN ELECTION IN UNIT
CONSISTING OF ALL ELECTRONIC TECHNICIANS, GS-856 SERIES, ENGINEERING
TECHNICIANS, GS-802 SERIES, GENERAL FACILITIES AND EQUIPMENT
TECHNICIANS, WG-4740 SERIES, AND GENERAL MAINTENANCE MECHANICS, WG-4704
SERIES, ASSIGNED TO THE AIRWAY FACILITIES SECTOR OFFICES OF THE EASTERN
REGION, FEDERAL AVIATION ADMINISTRATION, EXCLUDING ALL PROFESSIONAL
EMPLOYEES, MANAGEMENT OFFICIALS, GUARDS, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY AND SUPERVISORS
AS DEFINED IN EXECUTIVE ORDER 11491, AS AMENDED, AND ALL AIRWAY
FACILITIES DIVISION EMPLOYEES ASSIGNED TO THE EASTERN REGIONAL
HEADQUARTERS, FEDERAL BUILDING JFK AIRPORT. /4/ THE EVIDENCE
ESTABLISHES IN THIS REGARD THAT THE UNIT PETITIONED FOR ENCOMPASSES
ESSENTIALLY THE SAME EMPLOYEES CURRENTLY REPRESENTED EXCLUSIVELY BY
FASTA/NAGE, LOCAL R2-10R IN TWO UNITS EACH COVERING HALF OF THE EASTERN
REGION. /5/
THE ACTIVITY TAKES THE POSITION THAT THE UNIT PETITIONED FOR BY THE
FASTA/NAGE IN CASE NO. 22-5554(RO), AS AMENDED AT THE HEARING,
CONSTITUTES AN APPROPRIATE UNIT. IN THIS CONNECTION, THE ACTIVITY
INDICATES ITS SUPPORT OF THE CONCEPT OF A NATIONWIDE UNIT OF ITS AIRWAY
FACILITIES DIVISION EMPLOYEES WORKING IN ITS FIELD ORGANIZATIONS
BECAUSE, IN ITS VIEW, THEY SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST SEPARATE AND DISTINCT FROM OTHER FAA EMPLOYEES AS THEY ALL ARE
ENGAGED IN THE MAINTENANCE AND/OR INSTALLATION OF ELECTRONIC EQUIPMENT,
WHICH IS AN INTEGRAL PART OF THE NATIONAL AIRSPACE SYSTEM AND WHICH
REQUIRES FOR ITS EFFECTIVENESS UNIFORM NATIONAL STANDARDS. THE ACTIVITY
AGREES WITH THE FASTA/NAGE THAT AIRWAY FACILITIES DIVISION EMPLOYEES
LOCATED AT THE VARIOUS REGIONAL HEADQUARTERS SHOULD NOT BE INCLUDED IN
THE CLAIMED UNIT BECAUSE, IN ITS VIEW, REGIONAL HEADQUARTERS EMPLOYEES
SHARE A COMMUNITY OF INTEREST WITH THE REGIONAL HEADQUARTERS EMPLOYEES
OF THE FAA IN OTHER DIVISIONS. HOWEVER, THE ACTIVITY WOULD INCLUDE IN
THE CLAIMED UNIT THE EMPLOYEES OF THE AIRWAY FACILITIES DIVISION
DESIGNATED AS FACILITIES AND ESTABLISHMENT (F&E) AND FIELD MAINTENANCE
PARTIES (FMP) BECAUSE THEY SPEND THE MAJORITY OF THEIR TIME WORKING AT
THE FIELD LOCATIONS RATHER THAN AT THE REGIONAL HEADQUARTERS WHERE THEY
ARE ADMINISTRATIVELY ASSIGNED. WITH RESPECT TO THE AFGE'S PETITION IN
CASE NO. 30-5781(RO), THE ACTIVITY TAKES THE POSITION THAT IT SHOULD BE
DISMISSED BECAUSE THE UNIT PETITIONED FOR IS AT THE REGIONAL LEVEL, AT
WHICH LEVEL THE ACTIVITY CONTENDS THE EMPLOYEES DO NOT SHARE A SEPARATE
AND DISTINCT COMMUNITY OF INTEREST AND SUCH A UNIT WILL NOT PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. IN ADDITION,
THE ACTIVITY OPPOSES THE AFGE'S PETITIONED FOR UNIT ON THE BASIS THAT
LIMITING A UNIT IN THE EASTERN REGION TO FOUR CLASSIFICATION SERIES
WOULD EXCLUDE EMPLOYEES WHO SHOULD BE IN ANY UNIT FOUND APPROPRIATE AT
THE REGIONAL LEVEL.
THE FASTA/NAGE ALSO TAKES THE POSITION THAT A NATIONWIDE UNIT, AS
PETITIONED FOR IN CASE NO. 22-5554(RO), IS THE ONLY APPROPRIATE UNIT,
DESPITE THE FACT THAT IT CURRENTLY REPRESENTS UNITS OF EMPLOYEES AT THE
SECTOR AND REGIONAL LEVELS. IN THIS REGARD, THE FASTA/NAGE CLAIMS THAT
NEGOTIATIONS AT THESE LEVELS HAVE NOT BEEN EFFECTIVE, AND THAT EFFECTIVE
DEALINGS WILL ONLY BE ACHIEVED THROUGH A NATIONWIDE UNIT. THE
FASTA/NAGE CONTENDS FURTHER THAT THE UNIT AS DEFINED IN ITS PETITION,
WHILE SPECIFICALLY EXCLUDING THOSE AIRWAY FACILITIES DIVISION EMPLOYEES
LOCATED AT REGIONAL HEADQUARTERS, SHOULD INCLUDE BOTH F&E AND FMP
EMPLOYEES BECAUSE, WHILE THESE EMPLOYEES ARE ASSIGNED ADMINISTRATIVELY
TO REGIONAL HEADQUARTERS, THEY SPEND THE MAJORITY OF THEIR TIME WORKING
IN THE FIELD. WITH RESPECT TO THE AFGE'S PETITION IN CASE NO.
30-5781(RO), THE FASTA/NAGE ALSO INDICATED THAT THE UNIT DESCRIPTION
THEREIN IS INCONSISTENT WITH THE PAST BARGAINING HISTORY IN THAT IT
EXCLUDES EMPLOYEES COVERED BY CURRENT CERTIFICATIONS.
THE AFGE CONTENDS, ON THE OTHER HAND, THAT A NATIONWIDE UNIT AS
PETITIONED FOR IN CASE NO. 22-5554(RO) IS INAPPROPRIATE BASED ON THE
REGIONAL ORGANIZATION OF THE FAA. IN ADDITION, THE AFGE CONTENDS THAT
EVEN IF A NATIONWIDE UNIT WAS FOUND TO BE APPROPRIATE, IT SHOULD INCLUDE
THE AIRWAY FACILITIES DIVISION EMPLOYEES ASSIGNED TO THE VARIOUS
REGIONAL HEADQUARTERS, WHO HAVE BEEN EXCLUDED SPECIFICALLY BY THE
FASTA/NAGE PETITION, BECAUSE THEY SHARE A COMMUNITY OF INTEREST WITH
OTHER AIRWAY FACILITIES DIVISION EMPLOYEES. THE AFGE MAINTAINS THAT THE
UNIT IT HAS PETITIONED FOR IN THE EASTERN REGION IN CASE NO. 30-5781(RO)
IS A FUNCTIONALLY APPROPRIATE UNIT IN THAT IT INCLUDES ALL THE EMPLOYEES
PERFORMING RELATED ELECTRONIC MAINTENANCE WORK WHO ARE ENGAGED IN AN
INTEGRATED WORK PROCESS UNDER SEPARATE SUPERVISION FROM OTHER AIRWAY
FACILITIES DIVISION EMPLOYEES AND THAT IT WOULD HAVE PETITIONED FOR THE
HEADQUARTERS EMPLOYEES IF THERE WAS NOT A PROCEDURAL BAR. THE AFGE
ASSERTS THAT THE SECTOR LEVEL IS THE LEVEL AT WHICH INEFFECTIVE DEALINGS
HAVE OCCURRED IN THE PAST, AND THAT, FOR THIS REASON, IT PETITIONED FOR
A REGIONWIDE UNIT CONSISTENT WITH THE PAST BARGAINING HISTORY IN THE
EASTERN REGION IN WHICH TWO UNITS COVERING THE ENTIRE REGION HAVE BEEN
REPRESENTED BY THE SAME FASTA/NAGE LOCAL UNDER ONE NEGOTIATED AGREEMENT.
THE AFGE ALSO INTERVENED ON BEHALF OF AFGE LOCAL 2760, HEREIN CALLED
LOCAL 2760, WITH RESPECT TO THE FASTA/NAGE PETITION IN CASE NO.
22-5554(RO). IN THIS CONNECTION, LOCAL 2760 IS THE EXCLUSIVE
REPRESENTATIVE OF A UNIT CONSISTING OF ALL CLERK-STENOS, SUPPLY CLERKS,
AND SUPPLY SPECIALISTS ASSIGNED TO THE ALBUQUERQUE, NEW MEXICO, AIRWAY
FACILITIES SECTOR (AFS), EXCLUDING ALL OTHER NONSUPERVISORY CLASS ACT
AND WAGE GRADE EMPLOYEES, MANAGEMENT OFFICIALS, PROFESSIONALS, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, GUARDS, AND SUPERVISORS AS DEFINED IN EXECUTIVE ORDER 11491,
AS AMENDED, THE ADMINISTRATIVE OFFICER, AND SECRETARY TO THE AFS
MANAGER. /6/ THE RECORD REVEALS THAT THIS UNIT IS COVERED BY AN
EXISTING NEGOTIATED AGREEMENT WHICH DID NOT BAR THE PETITION IN CASE NO.
22-5554(RO) BECAUSE SUCH PETITION WAS FILED TIMELY DURING THE OPEN
PERIOD OF THE NEGOTIATED AGREEMENT.
THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, HEREIN CALLED NFFE,
ALSO INTERVENED WITH RESPECT TO THE FASTA/NAGE PETITION IN CASE NO.
22-5554(RO). IT TOOK THE POSITION THAT A NATIONWIDE UNIT IS NOT
APPROPRIATE, AND THAT ONLY A REGIONWIDE OR LESS COMPREHENSIVE UNIT WOULD
BE APPROPRIATE CONSISTENT WITH THE FAA'S REGIONAL ORGANIZATION.
HOWEVER, IF A NATIONWIDE UNIT WAS FOUND TO BE APPROPRIATE, THE NFFE
STATED THAT IT WISHED TO PARTICIPATE IN A SELF-DETERMINATION ELECTION
WITH RESPECT TO TWO UNITS REPRESENTED EXCLUSIVELY BY NFFE LOCAL 1388,
WHICH ARE DESCRIBED AS:
ALL EMPLOYEES ASSIGNED TO AIRWAY FACILITIES SECTOR 29A, MIAMI AIR
ROUTE TRAFFIC CONTROL
CENTER, MIAMI, FLORIDA, EXCLUDING MANAGEMENT OFFICIALS, PROFESSIONAL
EMPLOYEES, SECRETARY TO
THE SECTOR MANAGER, TEMPORARY EMPLOYEES, NONREGULARLY EMPLOYED
PART-TIME EMPLOYEES, NON-UNITED
STATES NATIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL
WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, GUARDS AND SUPERVISORS AS DEFINED BY EXECUTIVE
ORDER 11491, AS AMENDED; AND
ALL EMPLOYEES ASSIGNED TO AFS HEADQUARTERS 30A, AFS FIELD UNIT 30-B,
BIMINI, BRITISH WEST
INDIES; AFS FIELD OFFICE 30-C, FT. LAUDERDALE, FLORIDA, AFS FIELD
OFFICE 30-D, KEY WEST,
FLORIDA; AFS FIELD OFFICE 30-F, AFSR RADAR, RICHMOND, FLORIDA, AFS
FIELD OFFICE 30-G, OVERSEAS
SECTOR, MIAMI, FLORIDA, AND AFS FIELD UNIT 30-H, SWAN ISLAND,
FLORIDA, EXCLUDING MANAGEMENT
OFFICIALS, PROFESSIONAL EMPLOYEES, SECRETARY TO THE SECTOR MANAGER,
TEMPORARY EMPLOYEES,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, GUARDS
AND SUPERVISORS AS DEFINED IN EXECUTIVE ORDER 11491, AS AMENDED,
PERSONNEL ASSIGNED TO THE
FACILITIES FOR TRAINING PURPOSES ONLY.
THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,
AFL-CIO, LOCAL LODGE NO. 2266, HEREIN CALLED IAM, ALSO INTERVENED WITH
RESPECT TO THE FASTA/NAGE PETITION INCASE NO. 22-5554(RO). IT TOOK THE
POSITION THAT BASED ON THE ASSISTANT SECRETARY'S DECISION IN DEPARTMENT
OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, SOUTHWEST REGION,
TULSA AIRWAY FACILITIES SECTOR, A/SLMR NO. 364, FINDING THAT A UNIT OF
AIRWAY FACILITIES DIVISION EMPLOYEES IS APPROPRIATE AT THE SECTOR LEVEL,
A MORE COMPREHENSIVE UNIT COULD NOT NOW BE CLAIMED AS THE ONLY
APPROPRIATE UNIT.
ALL OF THE PARTIES TO THIS PROCEEDING AGREED TO ACCEPT THE
DETERMINATION OF THE ASSISTANT SECRETARY REGARDING THE INCLUSION OR
EXCLUSION OF THE EMPLOYEES OF THE TULSA AIRWAY FACILITIES SECTOR AND
ALSO THE DENVER AIRWAY FACILITIES SECTOR IF A NATIONWIDE UNIT AS
PETITIONED FOR IN CASE NO. 22-5554(RO) WAS FOUND TO BE APPROPRIATE. THE
REPRESENTATIVE STATUS OF THE TULSA EMPLOYEES WAS DECIDED IN A/SLMR NO.
364, BUT SUCH MATTER WAS PENDING ON APPEAL BEFORE THE FEDERAL LABOR
RELATIONS COUNCIL AT THE TIME OF THE FILING OF THE PETITION IN CASE NO.
22-5554(RO). /7/ ALSO, THE REPRESENTATIVE STATUS OF THE DENVER
EMPLOYEES WAS PENDING BEFORE THE ASSISTANT SECRETARY IN CASE NOS.
61-2350(RA) AND 61-2367(CA) AT THE TIME OF THE FILING OF THE PETITION IN
CASE NO. 22-5554(RO). /8/ THE RECORD REVEALS THAT THE PETITION IN CASE
NO. 22-5554(RO) WAS FILED UNTIMELY WITH RESPECT TO POSSIBLE INTERVENTION
IN THESE MATTERS. FURTHER, AT THE HEARING, THE FASTA/NAGE AND THE
ACTIVITY TOOK THE POSITION THAT THE AIRWAY FACILITIES DIVISION FIELD
EMPLOYEES IN THE ALASKAN REGION SHOULD BE INCLUDED IF A NATIONWIDE UNIT
IS FOUND TO BE APPROPRIATE. IT WAS NOTED, IN THIS REGARD, THAT A
PETITION IN CASE NO. 71-3006(RO) HAD BEEN FILED PREVIOUSLY WITH RESPECT
TO THE ALASKAN EMPLOYEES AT THE TIME OF THE FILING OF THE PETITION IN
CASE NO. 22-5554(RO), AND THAT THE LATTER PETITION WAS FILED UNTIMELY
WITH REGARD TO A POSSIBLE INTERVENTION IN THE FORMER PETITION. /9/
CASE NO. 22-5554(RO)
THE FAA CONTENDS THAT ITS HISTORY OF BARGAINING IS BEST REFLECTED AS
AN EVOLUTION FROM SMALLER TO LARGER UNITS, AND IT NOTES, IN THIS
CONNECTION, THAT THREE NATIONAL EXCLUSIVE UNITS HAVE BEEN CERTIFIED
RECENTLY WITHIN THE FAA. /10/ THE FAA CONTENDS THAT THIS EVOLUTION OF
WHAT IT CONSIDERS TO BE AN APPROPRIATE UNIT SIZE IS CONSISTENT WITH THE
EVOLUTION OF EXECUTIVE ORDER 11491, AS AMENDED. WITH RESPECT TO THE
AIRWAY FACILITIES DIVISION, IN THE PAST THE FAA CONSIDERED THE SECTOR
LEVEL AND, IN SOME CASES, LESS COMPREHENSIVE UNITS TO BE APPROPRIATE.
IN MARCH 1974, THE FAA CONSENTED TO AN ELECTION AMONG ALL EMPLOYEES
UNDER THE CHIEF OF THE AIRWAY FACILITIES DIVISION IN THE PACIFIC-ASIA
REGION, WHICH UNIT INCLUDED REGIONAL HEADQUARTERS EMPLOYEES. ALSO OTHER
REGIONWIDE UNITS OF AIRWAY FACILITIES DIVISION EMPLOYEES EXIST.
HOWEVER, THE FAA NOW TAKES THE POSITION THAT A NATIONWIDE UNIT IS THE
ONLY APPROPRIATE UNIT WHICH WILL PROMOTE EFFECTIVE DEALINGS WITH
EFFICIENCY OF AGENCY OPERATIONS. WITH RESPECT TO THE EASTERN REGION
BARGAINING HISTORY, THE RECORD SHOWS THAT FASTA/NAGE LOCAL R2-10R HAS
BEEN RECOGNIZED EXCLUSIVELY FOR TWO UNITS COVERING ALL OF THE AIRWAY
FACILITIES DIVISION FIELD FACILITIES UNDER ONE NEGOTIATED AGREEMENT. IN
ADDITION, THE FASTA/NAGE LOCAL R2-73 IS THE EXCLUSIVE REPRESENTATIVE FOR
A UNIT OF ALL REGIONAL HEADQUARTERS EMPLOYEES, WHICH UNIT CROSSES
DIVISION LINES AND IS COVERED BY A CURRENT NEGOTIATED AGREEMENT WHICH
CONSTITUTED A BAR HEREIN. THIS UNIT, AS DEFINED, INCLUDES THE F&E
EMPLOYEES ASSIGNED TO THE EASTERN REGION HEADQUARTERS.
THE MISSION OF THE FAA IS TO PROVIDE A SAFE AND EXPEDITIOUS FLOW OF
AIRCRAFT IN THE NATIONAL AIRSPACE SYSTEM. IN ACCOMPLISHING THIS MISSION
THE FAA HAS BEEN ORGANIZED ALONG GEOGRAPHICAL LINES INTO TWELVE DEFINED
REGIONS, EACH HEADED BY A REGIONAL DIRECTOR. THE EMPLOYEES COVERED BY
THE FASTA/NAGE PETITION IN CASE NO. 22-5554(RO) ARE THOSE ASSIGNED TO
THE FIELD FACILITIES OF THE AIRWAY FACILITIES DIVISION, WHICH IS ONE OF
THE FIVE OPERATING DIVISIONS FOUND IN EACH REGION, WITH THE EXCEPTION OF
THE EUROPE, AFRICA, AND MIDDLE EAST REGION, WHICH HAS NO AIRWAY
FACILITIES DIVISION EMPLOYEES. THE MISSION OF THE AIRWAY FACILITIES
DIVISION IS TO MAINTAIN AND INSTALL THE EQUIPMENT AND FACILITIES OF THE
FAA WITHIN THE REGION INVOLVED. IN EACH REGION THE DIVISION IS HEADED
BY A CHIEF WHO REPORTS TO THE REGIONAL DIRECTOR FROM WHOM HE RECEIVES
HIS ADMINISTRATIVE DIRECTION. HE ALSO RECEIVES CERTAIN DEFINED
TECHNICAL DIRECTION FROM THE AIRWAY FACILITIES SERVICE OFFICE IN
WASHINGTON, D.C., WHICH, OTHERWISE, HAS NO LINE AUTHORITY OVER THE
AIRWAY FACILITIES DIVISION CHIEFS IN EACH REGION.
UNDER EACH DIVISION CHIEF ARE SEVERAL SECTORS, WHICH COMPOSE THE
FIELD ORGANIZATION OF THE AIRWAY FACILITIES DIVISION IN THE REGION, AND
SEVERAL BRANCHES LOCATED AT THE REGIONAL HEADQUARTERS. THE GEOGRAPHICAL
CONFIGURATION OF THE SECTORS AND THEIR SUB-ELEMENTS /11/ IN EACH REGION
IS DETERMINED BY THE MAINTENANCE NEEDS OF THAT REGION, AS WELL AS BY
STANDARDIZED MODELS, FROM WHICH ONLY LIMITED DEVIATION IS ALLOWED. SUCH
MODELS HAVE BEEN DEVELOPED BY THE AIRWAY FACILITIES SERVICE OFFICE TO
SERVE AS GUIDELINES IN DETERMINING THE SECTOR STRUCTURE. EACH SECTOR IS
HEADED BY A MANAGER WHO IS RESPONSIBLE FOR THE MAINTENANCE OF THE FAA
FACILITIES AND EQUIPMENT IN HIS SECTOR BASED ON STANDARDS SET NATIONALLY
TO PROVIDE CONSISTENCE THROUGHOUT THE FAA. HOWEVER, BECAUSE OF THE
INTEGRATED COMMUNICATION NETWORK AMONG THE FAA FACILITIES, WHICH DOES
NOT NECESSARILY FOLLOW THE GEOGRAPHICAL BOUNDARY OF THE PARTICULAR
SECTOR OR REGION INVOLVED, INDIVIDUAL EMPLOYEES MAY AT TIMES BE UNDER
THE TEMPORARY SUPERVISORY CONTROL OF A MANAGER IN ANOTHER SECTOR WHO MAY
ALSO BE IN ANOTHER REGION. THIS SITUATION MAY EXIST FOR A PERIOD OF
TIME BASED ON THE MAINTENANCE NEEDS OF THE COMMUNICATIONS NETWORK.
THE AIRWAY FACILITIES DIVISION BRANCHES, WHICH GENERALLY ARE LOCATED
AT T E REGIONAL HEADQUARTERS, PERFORM THE STAFF SUPPORT FUNCTIONS
NECESSARY TO THE DIVISION'S PRIMARY MISSION. IN THIS REGARD, TWO
ORGANIZATIONALLY DISTINCT EMPLOYEE GROUPINGS, F&E AND FMP, NORMALLY ARE
ASSIGNED TO ONE OF THE REGIONAL HEADQUARTERS BRANCHES BUT, IN FACT, THEY
PERFORM THEIR WORK IN THE FIELD.
WHILE VARIOUS JOB CLASSIFICATIONS ARE FOUND AMONG THE OVER 8000
EMPLOYEES COVERED BY THE PETITION IN CASE NO. 22-5554(RO), THE VAST
MAJORITY FALL UNDER TWO CLASSIFICATIONS-- ELECTRONIC TECHNICIAN, GS-856
SERIES AND GENERAL FACILITIES EQUIPMENT TECHNICIAN, WG-4740 SERIES.
THESE TWO CLASSIFICATIONS, WHICH COMPRISE OVER 90 PERCENT OF THE
EMPLOYEES SOUGHT BY THE FASTA/NAGE, ARE RELATED FUNCTIONALLY IN THAT THE
PERFORMANCE OF THEIR DUTIES REQUIRES UNIFORMITY ON A NATIONAL BASIS.
THUS, THE EMPLOYEES IN BOTH CLASSIFICATIONS ARE INVOLVED IN MAINTENANCE
AND INSTALLATION OF EQUIPMENT AND ARE REQUIRED TO BE CERTIFIED BASED ON
NATIONAL STANDARDS. FURTHER, THE TECHNICAL HANDBOOKS USED BY THE
EMPLOYEES IN THESE CLASSIFICATIONS HAVE BEEN DEVELOPED NATIONALLY TO
PROVIDE UNIFORMITY IN THE MAINTENANCE OF THE EQUIPMENT FROM ONE REGION
TO ANOTHER, AND THEIR CERTIFICATIONS ARE OBTAINED EITHER BY TRAINING AT
THE FAA ACADEMY, OKLAHOMA CITY, OKLAHOMA, OR BY A COMBINATION OF
ON-THE-JOB TRAINING AND TESTING ADMINISTERED LOCALLY. THE EMPLOYEES IN
BOTH CLASSIFICATIONS ARE OFTEN REQUIRED TO WORK ROUND-THE-CLOCK SHIFTS
IN THE PERFORMANCE OF THEIR DUTIES. IN ADDITION, THE EMPLOYEES IN THE
ELECTRONIC TECHNICIAN CLASSIFICATION RECEIVE "TIME AND A HALF" FOR
OVERTIME PERFORMED IN EQUIPMENT MAINTENANCE AND INSTALLATION BASED ON A
LAW COVERING ONLY SUCH FAA EMPLOYEES. FINALLY, THE FAA HAS BEEN GIVEN
PERMISSION TO PREPARE ITS OWN CLASSIFICATION GUIDELINES FOR THE
TECHNICIAN POSITIONS BY THE CIVIL SERVICE COMMISSION AND, THEREFORE, ALL
POSITION DESCRIPTIONS WRITTEN LOCALLY MUST BE BASED ON THESE NATIONALLY
ESTABLISHED GUIDELINES.
BECAUSE OF THE EXISTENCE OF A LARGE NUMBER OF EMPLOYEES IN THESE TWO
CLASSIFICATIONS WHO PERFORM SIMILAR DUTIES WITH SIMILAR SKILLS THAT
GENERALLY ARE TRANSPORTABLE, THERE IS A SUBSTANTIAL AMOUNT OF TRANSFER
FROM ONE LOCATION TO ANOTHER AMONG THE CLAIMED EMPLOYEES. THE RECORD
REFLECTS, IN THIS REGARD, THAT THE AREA OF CONSIDERATION FOR PROMOTIONS
INVOLVING THESE TECHNICIAN POSITIONS IS DETERMINED BY THE NUMBER OF
APPLICANTS AVAILABLE AND, FREQUENTLY, IS NATIONWIDE TO ASSURE A
SUFFICIENT NUMBER. WHILE SUCH AREA OF CONSIDERATION CAN BE AS SMALL AS
SECTORWIDE, IT APPEARS THAT GENERALLY IT TENDS TO BE AT THE REGIONWIDE
OR NATIONWIDE LEVELS. ALSO, TECHNICIAN EMPLOYEES OFTEN REQUEST THAT
THEIR NAMES BE PLACED ON THE AVAILABILITY LIST IN ANOTHER REGION AND BE
CONSIDERED ALONG WITH EMPLOYEES IN THAT REGION FOR VACANCIES THAT ARISE.
WITH RESPECT TO REDUCTIONS-IN-FORCE, THE RECORD REVEALS THAT THE AREA
OF CONSIDERATION IN THIS REGARD GENERALLY IS REGIONWIDE; HOWEVER, IT
MAY BE LARGER IN THE CASE OF A LARGE SCALE REDUCTION.
WITH RESPECT TO OTHER EMPLOYEE JOB CLASSIFICATIONS IN THE PETITIONED
FOR AIRWAY FACILITIES DIVISION, THE RECORD REFLECTS THAT CLERICAL AND
SUPPLY SPECIALIST CLASSIFICATIONS ARE FOUND IN EACH FIELD OFFICE AND
THAT THEY PERFORM A SUPPORTIVE FUNCTION FOR THE TECHNICIANS. OTHER
CLASSIFICATIONS FREQUENTLY FOUND IN FIELD OFFICES INCLUDE GENERAL
MAINTENANCE MECHANICS AND ENGINEERING TECHNICIANS, BOTH OF WHOSE DUTIES
INCLUDE ASSISTING THE TECHNICIANS DESCRIBED ABOVE IN PERFORMING THEIR
MAINTENANCE FUNCTIONS. ALSO, COMPUTER OPERATORS AND TELETYPE REPAIRERS
ARE FOUND AT MOST AIR ROUTE TRAFFIC CONTROL CENTERS. OTHER THAN THE
CLERICALS, ALL OF THE EMPLOYEES IN THESE ADDITIONAL CLASSIFICATIONS ALSO
MUST PERFORM THEIR DUTIES IN ACCORDANCE WITH STRICT NATIONALLY DEVELOPED
TECHNICAL STANDARDS.
IN EACH REGION, THE REGIONAL DIRECTOR IS ASSISTED WITH RESPECT TO
PERSONNEL ACTIONS, GRIEVANCES, AND LABOR RELATIONS BY THE REGIONAL
MANPOWER DIVISION. WHILE THE AUTHORITY FOR MOST PERSONNEL MATTERS RESTS
WITH HIM, THE RECORD REFLECTS THAT, CONSISTENT WITH THE FAA POLICY OF
DELEGATING SUCH AUTHORITY TO THE LOWEST POSSIBLE LEVEL, THE REGIONAL
DIRECTORS IN EACH REGION HAVE DEVELOPED THEIR OWN REGIONAL PROMOTION
PLANS, INCLUDING THE DELEGATION OF SUCH AUTHORITY TO THE SECTOR LEVEL
WHERE POSSIBLE. HOWEVER, ALL PROMOTIONS MUST FOLLOW THE FAA AND CIVIL
SERVICE GUIDELINES IN SUCH MATTERS. THE REGIONAL MANPOWER DIVISION ALSO
ASSISTS THE REGIONAL DIRECTOR, WHO IS THE ONLY OFFICIAL IN THE REGION
WITH THE AUTHORITY TO NEGOTIATE AGREEMENTS, IN THE HANDLING OF LABOR
RELATIONS MATTERS. HOWEVER, THE RECORD REFLECTS THAT LABOR RELATIONS
POLICY IS SET AT THE AGENCY LEVEL AND THAT THE OFFICE OF LABOR RELATIONS
IN WASHINGTON, D.C., WOULD BE INVOLVED DIRECTLY IN ANY NEGOTIATIONS AT
THE REGIONAL LEVEL. IN ADDITION, THE FAA'S OFFICE OF LABOR RELATIONS
TRAINS SUPERVISORY OFFICIALS IN THE IMPLEMENTATION OF NEGOTIATED
AGREEMENTS. THE FAA CONTENDS, IN THIS REGARD, THAT THE REDUCED
FRAGMENTATION WHICH WOULD BE THE RESULT OF A RESIDUAL NATIONWIDE UNIT,
AS PETITIONED FOR BY THE FASTA/NAGE IN CASE NO. 22-5554(RO), WOULD LIMIT
THE NUMBER OF NEGOTIATED AGREEMENTS AND, THEREBY, WOULD INCREASE ITS
EFFICIENCY IN TRAINING ITS LOCAL OFFICIALS IN THE IMPLEMENTATION OF SUCH
AGREEMENTS. IN ADDITION, IT CLAIMS THAT IT WOULD BE ABLE TO NEGOTIATE
MORE EFFECTIVELY BECAUSE POLICY WITH RESPECT TO PERSONNEL AND WORK
PRACTICES IS DEVELOPED AT A NATIONAL LEVEL.
F&E AND FMP EMPLOYEES
QUESTIONS WERE RAISED PRIOR TO THE HEARING WITH REGARD TO THE STATUS
OF THESE TWO GROUPS OF EMPLOYEES. AS STATED ABOVE, BOTH THE FASTA/NAGE
AND THE ACTIVITY CONSIDER BOTH THE F&E AND FMP EMPLOYEES TO BE INCLUDED
PROPERLY IN THE UNIT AS PETITIONED FOR BECAUSE, ALTHOUGH THEY ARE
ASSIGNED ADMINISTRATIVELY TO THE REGIONAL HEADQUARTERS, THEY SPEND THE
MAJORITY OF THEIR TIME WORKING AT FIELD LOCATIONS. WITH RESPECT TO THE
F&E EMPLOYEES, THE RECORD REVEALS THAT GENERALLY THEY ARE TECHNICIANS
WHO TRAVEL THROUGHOUT A REGION PERFORMING THE ROUTINE INSTALLATION OF
EQUIPMENT. /12/ THE RECORD DISCLOSES THAT THESE F&E TEAMS RECEIVE THEIR
FIRST LEVEL SUPERVISION FROM THE MEMBER OF THEIR TEAM HOLDING THE JOB
ORDER FOR A SPECIFIC INSTALLATION OF EQUIPMENT AND, THEREFORE, THEIR
FIRST LEVEL OF SUPERVISION CHANGES PERIODICALLY. THE NEXT LEVEL OF
SUPERVISION FOR THESE EMPLOYEES IS FOUND IN THE BRANCH AT REGIONAL
HEADQUARTERS TO WHICH THEY ARE ASSIGNED ADMINISTRATIVELY. AT NO TIME DO
THEY RECEIVE ANY SUPERVISION FROM THE SECTOR MANAGERS.
FMP EMPLOYEES ARE DRAWN FROM THE VARIOUS CRAFTS AND PERFORM THE
NEEDED MAINTENANCE FOR THE FAA FACILITIES. THE RECORD INDICATES THAT IN
SOME REGIONS THE FMP HAS BEEN DISMANTLED AND ITS EMPLOYEES PLACED IN THE
SECTORS UNDER THE SECTOR MANAGERS. HOWEVER, WHERE IT STILL EXISTS AS A
DISTINCT EMPLOYEE GROUPING, THE RECORD REVEALS THAT THE SUPERVISOR OF
THE FMP REPORTS ADMINISTRATIVELY TO A REGIONAL HEADQUARTERS BRANCH.
/13/ IN THE CASE OF BOTH F&E EMPLOYEES AND FMP EMPLOYEES, ADMINISTRATIVE
MATTERS, SUCH AS TIME AND LEAVE STATEMENTS, ARE HANDLED THROUGH THE
REGIONAL HEADQUARTERS BRANCH TO WHICH THEY ARE ASSIGNED.
REGIONAL HEADQUARTERS EMPLOYEES
THE RECORD REFLECTS THAT THESE EMPLOYEES ARE ASSIGNED GENERALLY TO
FIVE BRANCHES LOCATED AT THE VARIOUS FAA REGIONAL HEADQUARTERS. /14/
THE EVIDENCE ESTABLISHES THAT THE MAJORITY OF THE AIRWAY FACILITIES
DIVISION REGIONAL HEADQUARTERS EMPLOYEES ARE EITHER TECHNICIANS,
ENGINEERS, OR CLERICALS AND THAT THEY PROVIDE THE STAFF SUPPORT
NECESSARY TO THE DIVISION'S MISSION. WHILE THE TECHNICIANS ARE NOT
REQUIRED TO BE CERTIFIED AS THEY PERFORM NO MAINTENANCE DUTIES, MANY
HAVE RETAINED THEIR CERTIFICATIONS FROM PAST POSITIONS HELD IN THE FIELD
IN WHICH CERTIFICATION WAS REQUIRED. MANY OF THE REGIONAL HEADQUARTERS
IN THE PERFORMANCE OF THEIR DUTIES. TRANSFERS INVOLVING EMPLOYEES OF
BOTH THE TECHNICIAN AND CLERICAL CLASSIFICATIONS OCCUR FREQUENTLY
BETWEEN THE REGIONAL HEADQUARTERS AND THE FIELD. IN FACT, THE RECORD
REVEALS THAT TRANSFER FROM THE FIELD TO REGIONAL HEADQUARTERS AND
EVENTUALLY BACK TO THE FIELD IS A COMMON FORM OF CAREER PROGRESSION FOR
EMPLOYEES IN THE TECHNICIAN CLASSIFICATION. /15/
WORKING CONDITIONS, SUCH AS WORK LOCATION AND HOURS OF WORK, FOR ALL
REGIONAL HEADQUARTERS EMPLOYEES, REGARDLESS OF DIVISION, ARE ESSENTIALLY
THE SAME. HOWEVER, MANY OF THE AIRWAY FACILITIES DIVISION FIELD
EMPLOYEES ALSO WORK A STANDARD WORK DAY AND, GENERALLY, AT LEAST ONE
FIELD SECTOR OFFICE IN EACH REGION WILL BE LOCATED GEOGRAPHICALLY CLOSE
TO OR IN THE SAME LOCATION AS THE REGIONAL HEADQUARTERS.
THE HISTORY OF BARGAINING WITHIN THE FAA REFLECTS THAT BOTH UNITS OF
REGIONAL HEADQUARTERS EMPLOYEES ACROSS DIVISION LINES AND DIVISION-WIDE
UNITS, INCLUDING REGIONAL HEADQUARTERS EMPLOYEES, WERE IN EXISTENCE AT
THE TIME OF THE FILING OF THE PETITIONS IN THIS PROCEEDING. IN THIS
CONNECTION, THE AFGE NOTED THAT AS RECENTLY AS MARCH 1974, THE ACTIVITY
CONSENTED TO AN ELECTION IN THE PACIFIC-ASIA REGION IN WHICH AFGE WAS
CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE IN A UNIT CONSISTING OF ALL
AIRWAY FACILITIES EMPLOYEES UNDER THE SUPERVISION OF THE DIVISION CHIEF,
INCLUDING, IN EFFECT, THE HEADQUARTERS EMPLOYEES.
CASE NO. 30-5781(RO)
THE AFGE'S PETITIONED FOR UNIT CONSISTS OF ALL OF THE EMPLOYEES IN
FOUR TECHNICIAN CLASSIFICATIONS FOUND IN THE EASTERN REGION, WHICH
CLASSIFICATIONS THE RECORD REVEALS INCLUDE 1069 OF THE 1146
NONPROFESSIONAL EMPLOYEES ELIGIBLE FOR INCLUSION IN A REGIONWIDE UNIT.
THE EXISTING CERTIFICATIONS, EACH COVERING HALF OF THE EASTERN REGION,
EXCLUDE THE ENGINEERING TECHNICIAN CLASSIFICATION INCLUDED IN THE AFGE'S
PETITION, AND INCLUDE ALL WAGE GRADE EMPLOYEES, AS DISTINGUISHED FROM
MERELY INCLUDING THE TWO TECHNICIAN WAGE GRADE CLASSIFICATIONS SPECIFIED
IN THE AFGE'S PETITION. THE NUMBER OF EMPLOYEES SOUGHT BY THE PETITION
AND THOSE CURRENTLY COVERED BY THE EXISTING CERTIFICATIONS IS, HOWEVER,
SUBSTANTIALLY THE SAME WITH THE FOLLOWING CLASSIFICATIONS OF EMPLOYEES
BEING EXCLUDED BY BOTH THE EXISTING CERTIFICATIONS AND THE INSTANT
PETITION: CLERICAL, SUPPLY, AND COMPUTER OPERATOR.
UNDER ALL OF THE ABOVE CIRCUMSTANCES, I FIND THAT A NATIONWIDE,
RESIDUAL UNIT OF ALL AIRWAY FACILITIES DIVISION EMPLOYEES LOCATED IN THE
REGIONS, INCLUDING EMPLOYEES ASSIGNED TO F&E AND FMP WORK GROUPS AND
AIRWAY FACILITIES DIVISION REGIONAL HEADQUARTERS EMPLOYEES, SHARE A
CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM
ALL OTHER FAA EMPLOYEES. THUS, ALL AIRWAY FACILITIES DIVISION EMPLOYEES
SHARE A COMMON MISSION AND ENJOY COMMON OVERALL SUPERVISION, PERSONNEL
POLICIES AND PRACTICES, LABOR RELATIONS POLICIES, AND, ESSENTIALLY,
SIMILAR JOB CLASSIFICATIONS, AND DUTIES. FURTHER, THERE IS SUBSTANTIAL
INTERCHANGE AND TRANSFER OF SUCH EMPLOYEES ACROSS REGIONAL BOUNDARIES
AND, GENERALLY, THERE IS A COMMON AREA OF CONSIDERATION FOR PROMOTION
AND REDUCTION-IN-FORCE PROCEDURES. FURTHER, I FIND SUCH UNIT WILL
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. IN THIS
LATTER REGARD, IT WAS NOTED THAT SUCH A UNIT WILL REDUCE FURTHER
FRAGMENTATION AND PROLIFERATION OF BARGAINING UNITS WITHIN THE ACTIVITY,
AND THAT RECOGNITION WOULD OCCUR AT THE SAME LEVEL IN THE ACTIVITY'S
ORGANIZATION WHERE PERSONNEL AND LABOR RELATIONS POLICIES ARE INITIATED.
MOREOVER, CONTRARY TO THE POSITION TAKEN BY THE ACTIVITY AND THE
FASTA/NAGE, I FIND THAT AIRWAY FACILITIES DIVISION EMPLOYEES LOCATED AT
THE VARIOUS REGIONAL HEADQUARTERS SHOULD BE INCLUDED IN THE UNIT FOUND
APPROPRIATE. THUS, AS NOTED ABOVE, THESE EMPLOYEES SHARE IN A COMMON
MISSION AND HAVE COMMON OVERALL SUPERVISION WITH THE OTHER AIRWAY
FACILITIES DIVISION FIELD EMPLOYEES. FURTHER, SIMILAR JOB
CLASSIFICATIONS ARE FOUND BOTH IN THE FIELD AND AT THE REGIONAL
HEADQUARTERS AMONG AIRWAY FACILITIES DIVISION EMPLOYEES AND BOTH GROUPS
PERFORM THEIR TASKS UNDER THE TECHNICAL STANDARDS DEVELOPED NATIONALLY.
IN ADDITION, WHILE SOME TRANSFER AND INTERCHANGE OCCURS ACROSS
DIVISIONAL LINES AT THE REGIONAL HEADQUARTERS, THERE IS A SUBSTANTIALLY
HIGHER DEGREE OF TRANSFER AND INTERCHANGE BETWEEN FIELD AND REGIONAL
HEADQUARTERS PERSONNEL OF THE AIRWAY FACILITIES DIVISION. IN CONCLUDING
THAT THE INCLUSION OF HEADQUARTERS AIRWAY FACILITIES DIVISION EMPLOYEES
WAS WARRANTED, IT WAS NOTED ALSO THAT THE PARTIES AGREED, AND I FIND,
THAT R&E AND FMP EMPLOYEES SHOULD BE INCLUDED IN THE CLAIMED UNIT. IN
MY VIEW, TO INCLUDE THESE EMPLOYEES WHO ARE ADMINISTRATIVELY ASSIGNED TO
THE REGIONAL HEADQUARTERS, AND TO EXCLUDE, AT THE SAME TIME, THE OTHER
REGIONAL HEADQUARTERS EMPLOYEES OF THE AIRWAY FACILITIES DIVISION WOULD
RESULT IN UNIT FRAGMENTATION AND WOULD NOT PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS. /16/ MOREOVER, IT WAS NOTED THAT
AS RECENT AS MARCH 1974, THE ACTIVITY HAS TAKEN THE POSITION THAT AIRWAY
FACILITIES DIVISION EMPLOYEES ASSIGNED TO REGIONAL HEADQUARTERS WOULD BE
INCLUDED IN UNITS ENCOMPASSING EMPLOYEES ASSIGNED TO THE FIELD. /17/
WITH REGARD TO THE EMPLOYEES IN UNITS LOCATED AT THE TULSA AIRWAYS
FACILITIES SECTOR, THE DENVER AIRWAY FACILITIES SECTOR, AND THE AIRWAYS
FACILITIES DIVISION, ALASKAN REGION, I FIND THAT VALID QUESTIONS
CONCERNING THE REPRESENTATION OF EMPLOYEES AT THESE LOCATIONS EXISTED AT
THE TIME OF THE FILING OF THE PETITION IN CASE NO. 22-5554(RO), WHICH
COVERED, AMONG OTHERS, THE SAME EMPLOYEES, AND THAT THE LATTER PETITION
WAS FILED UNTIMELY FOR THE PURPOSE OF INTERVENTION IN ANY ELECTION HELD
AT THESE FACILITIES. THEREFORE, I FIND THAT THE EMPLOYEES COVERED BY
THE PREVIOUSLY FILED PETITIONS SHOULD BE EXCLUDED FROM THE UNIT FOUND
APPROPRIATE IN CASE NO. 22-5554(RO).
AS TO THE VARIOUS EXCLUSIVE BARGAINING UNITS IN WHICH NO BAR TO THE
PETITION IN CASE NO. 22-5554(RO) EXISTS, IT HAS BEEN HELD PREVIOUSLY IN
SIMILAR SITUATIONS THAT WHERE EXISTING, AND OTHERWISE APPROPRIATE UNITS,
WOULD BE ENCOMPASSED WITHIN A MORE COMPREHENSIVE UNIT SOUGHT, THE
EMPLOYEES IN SUCH EXISTING UNITS SHOULD HAVE THE OPPORTUNITY TO VOTE IN
A SELF-DETERMINATION ELECTION. /18/ THEREFORE, NOTING THAT NONE OF THE
PARTIES HEREIN CONTENDED THAT SUCH UNITS ARE INAPPROPRIATE, I SHALL
ORDER THAT THE EMPLOYEES IN THESE UNITS BE AFFORDED A SELF-DETERMINATION
ELECTION.
WITH REGARD TO THE PETITION IN CASE NO. 30-5781(RO), COVERING CERTAIN
EMPLOYEES IN THE EASTERN REGION, AIRWAYS FACILITIES DIVISION, THE UNIT
SOUGHT IS NOT EXACTLY COEXTENSIVE WITH THE EXISTING EXCLUSIVELY
RECOGNIZED UNITS. HOWEVER, NOTING THE CLEAR DESIRE OF AFGE LOCAL 3341
TO REPRESENT IN ONE REGIONWIDE UNIT ESSENTIALLY THE SAME EMPLOYEES
CURRENTLY REPRESENTED IN TWO UNITS BY FASTA/NAGE, LOCAL R2-10R, THE FACT
THAT SUCH EMPLOYEES HAVE BEEN COVERED UNDER A SINGLE NEGOTIATED
AGREEMENT, AND THAT THE AFGE'S PETITION HEREIN SEEKS SUBSTANTIALLY THE
SAME NUMBER EMPLOYEES AS ARE CURRENTLY INCLUDED IN THE EXISTING
BARGAINING UNITS, I SHALL DIRECT A SELF-DETERMINATION ELECTION IN A
REGIONWIDE UNIT WHICH IS COEXTENSIVE WITH THE EXISTING TWO UNITS
REPRESENTED BY FASTA/NAGE, LOCAL R2-10R OF NORTHERN AND SOUTHERN FIELD
EMPLOYEES OF THE AIRWAY FACILITIES DIVISION, EASTERN REGION.
ACCORDINGLY, BASED ON THE FOREGOING, I FIND THAT THE FOLLOWING
DESCRIBED UNITS (SET FORTH BELOW AS VOTING GROUPS) CONSIST OF EMPLOYEES
WHO SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST, SEPARATE AND
DISTINCT FROM OTHER EMPLOYEES OF THE FEDERAL AVIATION ADMINISTRATION AND
THAT SUCH UNITS WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS AND ARE APPROPRIATE FOR PURPOSE OF EXCLUSIVE RECOGNITION
UNDER EXECUTIVE ORDER 11491, AS AMENDED. THEREFORE, I SHALL DIRECT
ELECTIONS AMONG THE FOLLOWING:
VOTING GROUP (A): ALL ELECTRONIC TECHNICIANS AND WAGE GRADE
PERSONNEL UNDER THE CHIEF, AIRWAY FACILITIES DIVISION, EASTERN REGION
EMPLOYED IN AIRWAY FACILITY SECTOR OFFICES, EXCLUDING ALL PROFESSIONAL
EMPLOYEES, MANAGEMENT OFFICIALS, GUARDS, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY AND SUPERVISORS
AS DEFINED IN EXECUTIVE ORDER 11491, AS AMENDED, AND CLERICAL EMPLOYEES,
SUPPLY EMPLOYEES, AND COMPUTER OPERATORS;
VOTING GROUP (B): ALL CLERK-STENOS, SUPPLY CLERKS, AND SUPPLY
SPECIALISTS ASSIGNED TO THE ALBUQUERQUE, NEW MEXICO, AIRWAY FACILITIES
SECTOR, EXCLUDING ALL OTHER CLASS ACT AND WAGE GRADE EMPLOYEES,
MANAGEMENT OFFICIALS, PROFESSIONALS, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, GUARDS AND
SUPERVISORS, AS DEFINED IN EXECUTIVE ORDER 11491, AS AMENDED,
ADMINISTRATIVE OFFICER, AND SECRETARY TO THE AFS MANAGER;
VOTING GROUP (C): ALL WAGE GRADE EMPLOYEES ASSIGNED TO THE FIELD
MAINTENANCE PARTY OF THE AIRWAY FACILITIES FIELD OFFICE, FORT WORTH,
TEXAS, EXCLUDING ALL MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK EXCEPT IN A PURELY CLERICAL CAPACITY, GUARDS AND
SUPERVISORS AS DEFINED IN EXECUTIVE ORDER 11491, AS AMENDED,
PROFESSIONALS AND CLERICAL EMPLOYEES;
VOTING GROUP (D): ALL ELECTRONIC TECHNICIANS ASSIGNED TO THE EL TORO
MARINE BASE AIRWAY FACILITIES SECTOR, CALIFORNIA, EXCLUDING ALL
MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, GUARDS, AND SUPERVISORS AS
DEFINED IN THE ORDER;
VOTING GROUP (E): ALL PERSONNEL OCCUPYING THE POSITIONS OF
ELECTRONICS TECHNICIAN AND ELECTRO-MECHANICAL TECHNICIAN WHO ARE
ASSIGNED TO AIRWAY FACILITIES SECTOR 28400, HUNTSVILLE, ALABAMA,
EXCLUDING MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL
WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND SUPERVISORS AS
DEFINED IN THE ORDER;
VOTING GROUP (F): ALL GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES
ASSIGNED TO THE ATLANTA, GEORGIA, AIRWAY FACILITIES SECTOR 18200,
ATLANTA MUNICIPAL AIRPORT, EXCLUDING MANAGEMENT OFFICIALS, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, PROFESSIONAL EMPLOYEES, GUARDS, AND SUPERVISORS AS DEFINED IN
EXECUTIVE ORDER 11491, AS AMENDED, AND PERSONNEL ASSIGNED TO RECEIVE
TRAINING;
VOTING GROUP (G): ALL EMPLOYEES ASSIGNED TO AIRWAY FACILITIES SECTOR
29A, MIAMI, AIR ROUTE TRAFFIC CONTROL CENTER, MIAMI, FLORIDA, EXCLUDING
MANAGEMENT OFFICIALS, PROFESSIONAL EMPLOYEES, SECRETARY TO THE SECTOR
MANAGER, TEMPORARY EMPLOYEES, NON-REGULARLY EMPLOYED PART-TIME
EMPLOYEES, NON-UNITED STATES NATIONAL EMPLOYEES, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, GUARDS,
AND SUPERVISORS AS DEFINED BY EXECUTIVE ORDER 11491, AS AMENDED;
VOTING GROUP (H): ALL EMPLOYEES ASSIGNED TO AFS HEADQUARTERS 30A,
AFS FIELD UNIT 30-B, BIMINI, BRITISH WEST INDIES; AFS FIELD OFFICE
30-C, FT LAUDERDALE, FLORIDA, AFS FIELD OFFICE 30-D, KEY WEST, FLORIDA,
AFS FIELD OFFICE 30-F, AFSR RADAR, RICHMOND, FLORIDA; AFS FIELD OFFICE
30-G, OVERSEAS SECTOR, MIAMI, FLORIDA, AND AFS FIELD UNIT 30-H, SWAN
ISLAND, FLORIDA, EXCLUDING MANAGEMENT OFFICIALS, PROFESSIONAL EMPLOYEES,
SECRETARY TO THE SECTOR MANAGER, TEMPORARY EMPLOYEES, EMPLOYEES ENGAGED
IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
GUARDS, AND SUPERVISORS AS DEFINED IN EXECUTIVE ORDER 11491, AS AMENDED,
AND PERSONNEL ASSIGNED TO THE FACILITIES FOR TRAINING PURPOSES ONLY;
VOTING GROUP (I): ALL EMPLOYEES OF THE AIRWAY FACILITIES DIVISION,
LOCATED IN THE REGIONS OF THE FAA, EXCLUDING ALL EMPLOYEES IN VOTING
GROUPS (A), (B), (C), (D), (E), (F), (G), AND (H), PROFESSIONAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, GUARDS, AND SUPERVISORS
AS DEFINED IN EXECUTIVE ORDER 11491, AS AMENDED, AIRWAY FACILITIES
EMPLOYEES ASSIGNED TO THE WASHINGTON HEADQUARTERS, THE NATIONAL
AERONAUTICAL FACILITIES EXPERIMENTAL CENTER, ATLANTIC CITY, NEW JERSEY,
THE AERONAUTICAL CENTER, OKLAHOMA CITY, OKLAHOMA, AND THE AIRWAY
FACILITIES DIVISION EMPLOYEES REPRESENTED EXCLUSIVELY AT THE FOLLOWING
LOCATIONS: THE ST. PAUL, MINNESOTA AIRWAY FACILITIES SECTOR; THE
FARMINGTON, MINNESOTA AIRWAY FACILITIES SECTOR; THE MINNEAPOLIS,
MINNESOTA AIRWAY FACILITIES SECTOR; THE CHICAGO AURORA AIRWAY
FACILITIES SECTOR; THE CHICAGO MIDWAY AIRWAY FACILITIES SECTOR; THE
CHICAGO O'HARE AIRWAY FACILITIES SECTOR; THE LONGMONT, COLORADO AIRWAY
FACILITIES SECTOR; THE TAMPA, FLORIDA AIRWAY FACILITIES SECTOR; THE
OAKLAND, CALIFORNIA AIRWAY FACILITIES SECTOR; THE MCCLELLAN AIR FORCE
BASE AIRWAY FACILITIES SECTOR; THE ALBUQUERQUE, NEW MEXICO MAINTENANCE
ENGINEERING FIELD OFFICE; THE OKLAHOMA CITY, OKLAHOMA AIRWAY FACILITIES
SECTOR; THE TULSA, OKLAHOMA FIELD MAINTENANCE PARTY; THE EASTERN
REGION HEADQUARTERS; THE PACIFIC-ASIA REGION; THE TULSA, OKLAHOMA
AIRWAY FACILITIES SECTOR; THE DENVER, COLORADO AIRWAY FACILITIES
SECTOR; AND THE ALASKAN REGION.
THE EMPLOYEES IN THE VARIOUS VOTING GROUPS SHALL INDICATE THEIR
DESIRES BY CASTING THEIR VOTES AS FOLLOWS: IN VOTING GROUP (A) FOR THE
FASTA/NAGE, AFGE LOCAL 3341, OR NEITHER; IN VOTING GROUP (B) FOR THE
FASTA/NAGE, AFGE LOCAL 2760, OR NEITHER; IN VOTING GROUP (C) FOR THE
FASTA/NAGE, AFGE LOCAL 2606, OR NEITHER; IN VOTING GROUP (D) FOR THE
FASTA/NAGE, AFGE LOCAL 2473, OR NEITHER; IN VOTING GROUP (E) FOR THE
FASTA/NAGE, AFGE LOCAL 1858, OR NEITHER; IN VOTING GROUP (F) FOR THE
FASTA/NAGE, AFGE LOCAL 2123, OR NEITHER; IN VOTING GROUP (G) AND (H)
FOR THE FASTA/NAGE, NFFE LOCAL 1388, OR NEITHER; AND IN VOTING GROUP
(I) WHETHER OR NOT THEY WISH TO BE REPRESENTED BY THE FASTA/NAGE. IF A
MAJORITY OF THE EMPLOYEES VOTING IN VOTING GROUPS (A)-(H) SELECTS THE
LABOR ORGANIZATION WHICH IS SEEKING TO REPRESENT THEM SEPARATELY OR THE
INCUMBENT EXCLUSIVE REPRESENTATIVE, THEY WILL BE TAKEN TO HAVE INDICATED
THEIR DESIRE TO CONSTITUTE A SEPARATE APPROPRIATE UNIT. IN SUCH
CIRCUMSTANCES, THE AREA DIRECTOR SUPERVISING THE ELECTION IS INSTRUCTED
TO ISSUE A CERTIFICATION OF REPRESENTATIVE TO THE LABOR ORGANIZATION
SEEKING TO REPRESENT THE EMPLOYEES SEPARATELY OR TO THE INCUMBENT
EXCLUSIVE REPRESENTATIVE. HOWEVER, IF A MAJORITY OF THE EMPLOYEES IN
ANY OR ALL OF VOTING GROUPS (A)-(H) DOES NOT VOTE FOR THE LABOR
ORGANIZATION WHICH IS EITHER SEEKING TO REPRESENT THEM IN A SEPARATE
UNIT OR IS THE INCUMBENT EXCLUSIVE REPRESENTATIVE, THE BALLOTS OF THE
EMPLOYEES IN THESE VOTING GROUPS WILL BE POOLED WITH THOSE OF THE
EMPLOYEES IN VOTING GROUP (I). /19/
ELECTIONS BY SECRET BALLOT SHALL BE CONDUCTED AMONG EMPLOYEES IN THE
VOTING GROUPS DESCRIBED ABOVE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA DIRECTORS SHALL
SUPERVISE THE ELECTIONS, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE VOTING GROUPS WHO WERE
EMPLOYED DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN MILITARY
SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE
EMPLOYEES WHO HAVE QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE
DESIGNATED PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED
BEFORE THE ELECTION DATE.
THOSE ELIGIBLE TO VOTE IN VOTING GROUPS (A), (B), (C), (D), (E), (F),
(G), AND (H), SHALL VOTE WHETHER THEY WISH TO BE REPRESENTED FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION BY THE FEDERAL AVIATION SCIENCE AND
TECHNOLOGICAL ASSOCIATION/NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES;
BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3341
VOTING GROUP (A), LOCAL 2760 VOTING GROUP (B), LOCAL 2606 VOTING GROUP
(C), LOCAL 2473 VOTING GROUP (D), LOCAL 1858 VOTING GROUP (E), LOCAL
2123 VOTING GROUP (F); BY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1388 VOTING GROUPS (G) AND (H); OR BY NO LABOR ORGANIZATION.
THOSE ELIGIBLE TO VOTE IN VOTING GROUP (I) SHALL VOTE WHETHER OR NOT
THEY WISH TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY
THE FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION/NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES.
BECAUSE THE ABOVE DIRECTION OF ELECTIONS ARE IN UNITS DIFFERENT THAN
THOSE SOUGHT BY EITHER THE FASTA/NAGE OR BY THE AFGE, I SHALL PERMIT
EITHER TO WITHDRAW ITS PETITION IF IT DOES NOT DESIRE TO PROCEED TO AN
ELECTION IN THE UNITS FOUND APPROPRIATE IN THE SUBJECT CASES UPON NOTICE
TO THE APPROPRIATE AREA DIRECTORS WITHIN 10 DAYS OF THE ISSUANCE OF THIS
DECISION. IF EITHER LABOR ORGANIZATION DESIRES TO PROCEED TO AN
ELECTION, BECAUSE THE UNITS FOUND APPROPRIATE ARE DIFFERENT THAN THE
UNITS ORIGINALLY PETITIONED FOR, I DIRECT THAT THE ACTIVITY, AS SOON AS
POSSIBLE, SHALL POST COPIES OF A NOTICE OF UNIT DETERMINATION, WHICH
SHALL BE FURNISHED BY THE APPROPRIATE AREA DIRECTORS, IN PLACES WHERE
NOTICES ARE NORMALLY POSTED AFFECTING THE EMPLOYEES IN THE UNITS FOUND
APPROPRIATE. SUCH NOTICE SHALL CONFORM IN ALL RESPECTS TO THE
REQUIREMENTS OF SECTION 202.4(B) AND (C) OF THE ASSISTANT SECRETARY'S
REGULATIONS. FURTHER, ANY LABOR ORGANIZATION WHICH SEEKS TO INTERVENE
IN THIS MATTER MUST DO SO IN ACCORDANCE WITH THE REQUIREMENTS OF SECTION
202.5 OF THE ASSISTANT SECRETARY'S REGULATIONS. ANY TIMELY INTERVENTION
WILL BE GRANTED SOLELY FOR THE PURPOSE OF APPEARING ON THE BALLOT AMONG
THE EMPLOYEES IN THE UNITS FOUND APPROPRIATE.
DATED, WASHINGTON, D.C.
DECEMBER 18, 1975
/1/ THE NAME OF THIS LABOR ORGANIZATION APPEARS AS AMENDED AT THE
HEARING.
/2/ THE AFGE FILED AN "ERRATA" DATED AUGUST 6, 1975, TO ITS
POST-HEARING BRIEF. AS SUCH "ERRATA" WAS FILED UNTIMELY, THAT PORTION
WHICH SUBSTANTIVELY ADDS TO OR AMENDS THE POST-HEARING BRIEF HAS NOT
BEEN CONSIDERED.
/3/ THE UNIT APPEARS ESSENTIALLY AS AMENDED AT THE HEARING WHERE THE
PARTIES STIPULATED THAT THE AIRWAY FACILITIES DIVISION EMPLOYEES
REPRESENTED EXCLUSIVELY AT THE FOLLOWING LOCATIONS SHOULD BE EXCLUDED
FROM ANY UNIT FOUND APPROPRIATE BASED ON AGREEMENT OR CERTIFICATION
BARS: THE ST. PAUL, MINNESOTA, AIRWAY FACILITIES SECTOR; THE
FARMINGTON, MINNESOTA, AIRWAY FACILITIES SECTOR; THE MINNEAPOLIS,
MINNESOTA, AIRWAY FACILITIES SECTOR; THE CHICAGO AURORA AIRWAY
FACILITIES SECTOR; THE CHICAGO MIDWAY AIRWAY FACILITIES SECTOR; THE
CHICAGO O'HARE AIRWAY FACILITIES SECTOR; THE LONGMONT, COLORADO, AIRWAY
FACILITIES SECTOR; THE TAMPA, FLORIDA, AIRWAY FACILITIES SECTOR; THE
OAKLAND, CALIFORNIA, AIRWAY FACILITIES SECTOR; THE MCCLELLAN AIR FORCE
BASE AIRWAY FACILITIES SECTOR; THE ALBUQUERQUE, NEW MEXICO, MAINTENANCE
ENGINEERING FIELD OFFICE; THE OKLAHOMA, FIELD MAINTENANCE PARTY; THE
EASTERN REGION HEADQUARTERS; AND THE PACIFIC-ASIA REGION.
/4/ THE UNIT APPEARS ESSENTIALLY AS AMENDED AT THE HEARING.
/5/ THE FIRST OF THESE UNITS, WHICH WAS CERTIFIED ON MAY 12, 1971,
INCLUDED ALL NONSUPERVISORY ELECTRONIC TECHNICIANS AND WAGE GRADE
PERSONNEL UNDER SUPERVISION OF THE CHIEF, AIRWAY FACILITIES DIVISION,
EASTERN REGION EMPLOYED IN AIRWAY FACILITY SECTOR OFFICES IN THE STATE
OF NEW YORK, PENNSYLVANIA, NEW JERSEY, AND DELAWARE WITH THE NORMAL
EXCLUSIONS. THE SECOND UNIT, WHICH WAS CERTIFIED ON OCTOBER 13, 1971,
AS THE RESULT OF A DECISION, ORDER AND DIRECTION OF ELECTION OF THE
ASSISTANT SECRETARY IN DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION, AIRWAY FACILITIES DIVISION, EASTERN REGION, A/SLMR NO.
94, INCLUDES ALL NONSUPERVISORY ELECTRONIC TECHNICIANS, GENERAL
FACILITIES EQUIPMENT TECHNICIANS, AND OTHER NONSUPERVISORY WAGE GRADE
EMPLOYEES EMPLOYED IN THE SOUTHERN BRANCH OF THE EASTERN REGION WITH THE
EXCEPTION OF THE STATE OF PENNSYLVANIA.
AN AGREEMENT BETWEEN THE FAA AND THE FASTA/NAGE, LOCAL R2-10R, WHICH
COVERED BOTH OF THE ABOVE NOTED UNITS APPARENTLY EXPIRED ON JUNE 19,
1974, AND WAS, THEREFORE, NOT RAISED AS A BAR.
/6/ THE AFGE APPARENTLY INTERVENED TO ASSURE THAT THE EMPLOYEES IN
THE ABOVE-NOTED UNIT RECIEVE A SELF-DETERMINATION ELECTION IF A
NATIONWIDE UNIT, AS PETITIONED FOR BY THE FASTA/NAGE IN CASE NO.
22-5554(RO), IS FOUND TO BE APPROPRIATE. THE AFGE ALSO CONTENDS THAT
SIMILAR SELF-DETERMINATION ELECTIONS SHOULD BE CONDUCTED IN UNITS
CURRENTLY REPRESENTED BY AFGE LOCAL 2606, 2473, 1858, AND 2123. I AM
ADMINISTRATIVELY ADVISED THAT THESE UNITS ARE AS FOLLOWS:
ALL WAGE GRADE EMPLOYEES ASSIGNED TO THE FIELD MAINTENANCE PARTY OF
THE AIRWAY FACILITIES FIELD OFFICE, FORT WORTH, TEXAS, EXCLUDING ALL
MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK EXCEPT
IN A PURELY CLERICAL CAPACITY, GUARDS AND SUPERVISORS AS DEFINED IN
EXECUTIVE ORDER 11491, AS AMENDED, PROFESSIONALS AND CLERICAL EMPLOYEES;
ALL ELECTRONIC TECHNICIANS ASSIGNED TO THE EL TORO MARINE BASE AIRWAY
FACILITIES SECTOR, CALIFORNIA, EXCLUDING ALL MANAGEMENT OFFICIALS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, GUARDS AND SUPERVISORS AS DEFINED IN THE ORDER;
ALL PERSONNEL OCCUPYING THE POSITIONS OF ELECTRONICS TECHNICIAN AND
ELECTRO-MECHANICAL TECHNICIAN WHO ARE ASSIGNED TO AIRWAY FACILITIES
SECTOR 28400, HUNTSVILLE, ALABAMA, EXCLUDING ALL MANAGEMENT OFFICIALS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, GUARDS AND SUPERVISORS AS DEFINED IN THE ORDER;
ALL GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES ASSIGNED TO THE
ATLANTA, GEORGIA, AIRWAY FACILITIES SECTOR 18200, ATLANTA MUNICIPAL
AIRPORT, EXCLUDING MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, PROFESSIONAL
EMPLOYEES, AND GUARDS AND SUPERVISORS AS DEFINED IN EXECUTIVE ORDER
11491, AS AMENDED, AND PERSONNEL ASSIGNED TO RECEIVE TRAINING.
/7/ SEE DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION, SOUTHWEST REGION, TULSA AIRWAY FACILITIES SECTOR, FLRC
NO. 74A-28.
/8/ SEE DENVER AIRWAY FACILITIES HUB SECTOR, FAA ROCKY MOUNTAIN
REGION, DOT, AURORA, COLORADO, A/SLMR NO. 535.
/9/ SEE FEDERAL AVIATION ADMINISTRATION, AIRWAYS FACILITIES DIVISION,
ALASKAN REGION, A/SLMR NO. 599.
/10/ THE THREE NATIONALLY RECOGNIZED UNITS INCLUDE ALL FLIGHT SERVICE
SPECIALISTS, WHICH RESULTED FROM THE ASSISTANT SECRETARY'S DECISION IN
FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, A/SLMR
NO. 122; ALL AIR TRAFFIC CONTROLLERS, WHICH RESULTED FROM THE ASSISTANT
SECRETARY'S DECISION IN FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION, A/SLMR NO. 173; AND ALL EMPLOYEES OF THE FLIGHT SERVICE
DIVISION, WHICH UNIT WAS ESTABLISHED PURSUANT TO A CONSENT ELECTION
AGREEMENT.
/11/ THESE SUB-ELEMENTS INCLUDE SECTOR FIELD OFFICES, SECTOR FIELD
UNITS, AND SECTOR FIELD OFFICE UNITS.
/12/ THE RECORD REFLECTS THAT, IN THE CASE OF MAJOR EQUIPMENT
CHANGES, SPECIAL TEAMS OF F&E EMPLOYEES ARE DRAWN FROM THE REGIONS TO
PERFORM SUCH INSTALLATIONS ON A NATIONWIDE BASIS.
/13/ THE RECORD IS NOT CLEAR AS TO WHICH REGIONS HAVE DISMANTLED
THEIR FMP'S AND DISPERSED THE FMP EMPLOYEES AMONG THE SECTORS.
/14/ THE NUMBER OF BRANCHES MAY VARY DEPENDING ON THE SIZE AND NEEDS
OF THE REGION, AS LONG AS ALL THE FUNCTIONS PRESCRIBED IN THE STANDARD
REGIONAL ORGANIZATION CHART ARE PERFORMED.
/15/ TRANSFERS ALSO OCCUR BETWEEN THE REGIONAL HEADQUARTERS EMPLOYEES
OF THE AIRWAY FACILITIES DIVISION AND THE OTHER FAA DIVISIONS LOCATED AT
THE REGIONAL HEADQUARTERS.
/16/ SEE FEDERAL AVIATION ADMINISTRATION, AIRWAYS FACILITIES
DIVISION, ALASKAN REGION CITED ABOVE.
/17/ ON MARCH 14, 1974, IN THE PACIFIC-ASIA REGION, THE FAA CONSENTED
TO AN ELECTION AMONG ALL EMPLOYEES UNDER THE CHIEF, AIRWAY FACILITIES
DIVISION, INCLUDING EMPLOYEES ASSIGNED TO REGIONAL HEADQUARTERS.
/18/ SEE FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION, A/SLMR NO. 122 AND FEDERAL AVIATION ADMINISTRATION,
DEPARTMENT OF TRANSPORTATION, A/SLMR NO. 173.
/19/ IF THE VOTES IN VOTING GROUPS (A), (B), (C), (D), (E), (F), (G),
AND/OR (H) ARE POOLED WITH THE VOTES OF VOTING GROUP (I), THEY ARE TO BE
TALLIED IN THE FOLLOWING MANNER: IN VOTING GROUPS (A), (B), (C), (D),
(E), (F), (G), AND/OR (H), THE VOTES FOR THE AFGE OR FOR THE NFFE, THE
LABOR ORGANIZATIONS SEEKING SEPARATE UNITS, SHALL BE COUNTED AS PART OF
THE TOTAL NUMBER OF VALID VOTES CAST BUT NEITHER FOR NOR AGAINST THE
FASTA/NAGE, THE LABOR ORGANIZATION SEEKING TO REPRESENT THE NATIONWIDE
UNIT. ALL OTHER VOTES ARE TO BE ACCORDED THEIR FACE VALUE. I FIND
THAT, UNDER THE CIRCUMSTANCES, ANY UNIT RESULTING FROM A POOLING OF
VOTES AS DESCRIBED ABOVE CONSTITUTES AN APPROPRIATE UNIT FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION UNDER THE ORDER.
/20/ THE RECORD IS UNCLEAR AS TO WHETHER THE UNITS FOUND APPROPRIATE
WOULD RENDER INADEQUATE EITHER THE SHOWING OF INTEREST OF THE FASTA/NAGE
OR THE AFGE. ACCORDINGLY, BEFORE PROCEEDING TO THE ELECTIONS IN THE
SUBJECT CASES, THE APPROPRIATE AREA DIRECTORS ARE DIRECTED TO REEVALUATE
THE SHOWING OF INTEREST. IF IT IS DETERMINED THAT FASTA/NAGE'S SHOWING
IS INSUFFICIENT, THEN THE PETITION IN CASE NO. 22-5554(RO) SHOULD BE
DISMISSED. IF THE AFGE'S SHOWING OF INTEREST IN INSUFFICIENT, THEN THE
PETITION IN CASE NO. 30-5781(RO), INVOLVING EMPLOYEES OF THE EASTERN
REGION, SHOULD BE DISMISSED.
5 A/SLMR 599; P. 772; CASE NO. 71-3006(RO); DECEMBER 18, 1975.
FEDERAL AVIATION ADMINISTRATION,
AIRWAYS FACILITIES DIVISION,
ALASKAN REGION
A/SLMR NO. 599
THIS CASE AROSE AS A RESULT OF A REPRESENTATION PETITION FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3028 SEEKING
AN ELECTION IN ESSENTIALLY A UNIT OF ALL NONPROFESSIONAL EMPLOYEES UNDER
THE AIRWAYS FACILITIES DIVISION CHIEF IN THE ALASKAN REGION OF THE
FEDERAL AVIATION ADMINISTRATION (FAA). THE ACTIVITY TOOK THE POSITION
THAT ONLY A NATIONWIDE UNIT OF AIRWAY FACILITIES DIVISION EMPLOYEES WAS
AN APPROPRIATE UNIT AND, THEREFORE, ANY PETITION SEEKING A SMALLER UNIT
SHOULD BE DISMISSED. HOWEVER, IF SUCH A UNIT WAS FOUND TO BE
APPROPRIATE, THE ACTIVITY CONTENDED THAT IT SHOULD EXCLUDE THE AIRWAYS
FACILITIES DIVISION EMPLOYEES LOCATED AT THE ALASKAN REGIONAL
HEADQUARTERS.
THE ASSISTANT SECRETARY FOUND THE CLAIMED UNIT TO BE APPROPRIATE. HE
NOTED, AMONG OTHER THINGS, THAT ALL OF THE EMPLOYEES SOUGHT WERE UNDER
THE SUPERVISION OF THE DIVISION CHIEF WHO HAD ULTIMATE RESPONSIBILITY
FOR PERSONNEL MATTERS. HE NOTED ALSO THAT THE CLAIMED EMPLOYEES SHARED
A COMMON MISSION, IN MANY INSTANCES SIMILAR JOB CLASSIFICATIONS AND
DUTIES, SIMILAR WORKING CONDITIONS, AND THAT THEIR PERSONNEL FILES WERE
KEPT AT THE REGIONAL LEVEL. MOREOVER, HE FOUND THAT THE UNIT SOUGHT
WOULD PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS AS
IT WAS CONSISTENT WITH THE FAA'S DELEGATION OF NEGOTIATION AUTHORITY AND
AS IT WOULD REDUCE UNIT FRAGMENTATION.
WITH RESPECT TO THE INCLUSION OF CERTAIN HEADQUARTERS EMPLOYEES OF
THE DIVISION, THE ASSISTANT SECRETARY CONCLUDED THAT SUCH EMPLOYEES
SHARED A COMMUNITY OF INTEREST WITH THE FIELD EMPLOYEES OF THE DIVISION,
NOTING, AMONG OTHER THINGS, THAT SUBSTANTIAL INTERCHANGE AND TRANSFERS
HAD OCCURRED BETWEEN THE EMPLOYEES OF THE REGIONAL HEADQUARTERS AND THE
FIELD.
ACCORDINGLY, THE ASSISTANT SECRETARY DIRECTED THAT AN ELECTION BE
CONDUCTED IN THE UNIT FOUND APPROPRIATE.
FEDERAL AVIATION ADMINISTRATION,
AIRWAYS FACILITIES DIVISION,
ALASKAN REGION
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3028 /1/
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER DANIEL P. KRAUS.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED. /2/
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILED BY BOTH
PARTIES, /3/ THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3028, HEREINAFTER CALLED AFGE, SEEKS AN ELECTION IN A
UNIT CONSISTING OF ALL EMPLOYEES UNDER THE SUPERVISION OF THE CHIEF,
AIRWAY FACILITIES DIVISION, ALASKAN REGION, FEDERAL AVIATION
ADMINISTRATION (FAA), EXCLUDING ALL PROFESSIONAL EMPLOYEES, MANAGERIAL
EMPLOYEES, CONFIDENTIAL EMPLOYEES, TEMPORARY INTERMITTENT EMPLOYEES,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, SUPERVISORS AND GUARDS AS DEFINED IN EXECUTIVE ORDER
11491, AS AMENDED. THE ACTIVITY TAKES THE POSITION THAT THE PETITIONED
FOR UNIT IS INAPPROPRIATE BECAUSE, IN ITS VIEW, THE EMPLOYEES INVOLVED
DO NOT SHARE A COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM OTHER
FIELD EMPLOYEES, AND THAT ONLY A NATIONWIDE UNIT OF ALL AIRWAY
FACILITIES DIVISION EMPLOYEES ASSIGNED TO FIELD LOCATIONS WILL PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. ALTERNATIVELY,
THE ACTIVITY CONTENDS THAT SHOULD A REGIONWIDE UNIT BE FOUND
APPROPRIATE, THE REGIONAL HEADQUARTERS PERSONNEL OF THE DIVISION SHOULD
BE EXCLUDED BECAUSE THEY DO NOT SHARE A COMMUNITY OF INTEREST WITH FIELD
PERSONNEL.
WITHIN THE FAA, THE RECORD SHOWS A HISTORY OF BARGAINING AT ALL
LEVELS, FROM SMALL FIELD UNITS TO NATIONWIDE UNITS. AMONG THE EMPLOYEES
SOUGHT HEREIN, THE RECORD REFLECTS THAT THE AFGE WAS CERTIFIED AS THE
EXCLUSIVE REPRESENTATIVE FOR FIVE SEPARATE SECTOR LEVEL UNITS AND FOR
ONE ADDITIONAL UNIT WHICH INCLUDED CERTAIN EMPLOYEES ASSIGNED TO THE
REGIONAL HEADQUARTERS OF THE ACTIVITY. NO NEGOTIATED AGREEMENTS
COVERING ANY OF THE EMPLOYEES IN THESE EXCLUSIVELY RECOGNIZED UNITS
EXISTED AT THE TIME OF THE HEARING IN THIS MATTER.
THE RECORD REVEALS THAT THE AIRWAY FACILITIES DIVISION IS ONE OF FIVE
MAJOR OPERATING DIVISIONS IN THE FAA. IT IS RESPONSIBLE FOR THE
MAINTENANCE AND INSTALLATION OF THE EQUIPMENT AND FACILITIES USED BY THE
FAA TO PROVIDE A SAFE AND EXPEDITIOUS FLOW OF AIRCRAFT IN THE NATIONAL
AIRSPACE SYSTEM. IT ALSO IS ONE OF THE FIVE OPERATING DIVISIONS FOUND
IN EACH OF THE GEOGRAPHICAL REGIONS OF THE FAA, INCLUDING THE ACTIVITY.
/4/
THE ACTIVITY IS HEADED BY A CHIEF. THE RECORD REVEALS THAT WHILE THE
AIRWAY FACILITIES SERVICE OFFICE IN WASHINGTON, D.C., GIVES THE CHIEF
CERTAIN CLEARLY DEFINED TECHNICAL GUIDANCE, HE GENERALLY HAS BEEN
DELEGATED FULL RESPONSIBILITY FOR HIS DIVISION BY THE FAA ALASKAN
REGIONAL DIRECTOR. IN THIS REGARD, HE SUPERVISES THREE REGIONAL
HEADQUARTERS BRANCHES AND SIX SECTORS IN CARRYING OUT HIS
RESPONSIBILITIES. THE REGIONAL HEADQUARTERS BRANCHES-- ENGINEERING,
PLANNING/ESTABLISHMENT, AND MAINTENANCE OPERATIONS-- ARE SUBDIVIDED
FURTHER INTO SECTIONS AND UNITS. THEY ARE RESPONSIBLE FOR THE STAFF
WORK NECESSARY TO THE DIVISION'S MISSION AS WELL AS FOR THE INSTALLATION
OF CERTAIN EQUIPMENT AND THE FIELD MAINTENANCE OF THE FACILITIES WHICH
THE SECTORS ARE INCAPABLE OF PERFORMING. /5/ THE MAJORITY OF THE
EMPLOYEES IN THE THREE REGIONAL HEADQUARTERS BRANCHES, OTHER THAN THOSE
NOTED ABOVE, ARE LOCATED AT THE ALASKAN REGIONAL HEADQUARTERS WHERE
REGIONAL HEADQUARTERS EMPLOYEES OF THE OTHER FAA DIVISIONS ALSO ARE
LOCATED.
OF THE SIX SECTOR OFFICES, TWO ARE LOCATED IN THE ANCHORAGE AREA, TWO
ARE LOCATED IN THE FAIRBANKS AREA, ONE IS LOCATED IN THE KING SALMON
AREA, AND ONE IS LOCATED IN THE JUNEAU AREA. EACH SECTOR IS HEADED BY A
SECTOR MANAGER WHO IS RESPONSIBLE FOR HIS OFFICE AND THE VARIOUS SECTOR
FIELD OFFICES, SECTOR UNITS, AND SECTOR FIELD OFFICE UNITS LOCATED UNDER
THE JURISDICTION OF HIS SECTOR.
THERE ARE 630 EMPLOYEES UNDER THE CHIEF OF AIRWAY FACILITIES DIVISION
IN THE ALASKAN REGION 80 OF WHOM ARE ASSIGNED TO THE THREE REGIONAL
HEADQUARTERS BRANCHES. THESE EMPLOYEES ARE COVERED UNDER MANY DIFFERENT
JOB CLASSIFICATIONS, BUT THE VAST MAJORITY OF EMPLOYEES ASSIGNED TO BOTH
THE HEADQUARTERS AND THE FIELD FALL UNDER THE BROAD CATEGORY OF
TECHNICIAN. IN THE FIELD, THE TECHNICIANS ARE RESPONSIBLE FOR
MAINTAINING THE ELECTRONIC EQUIPMENT FOUND IN THE FAA FACILITIES, WHILE
THE TECHNICIANS ASSIGNED TO THE REGIONAL HEADQUARTERS MAY EITHER INSTALL
NEW EQUIPMENT IN THE FAA FACILITIES OR PERFORM STAFF FUNCTIONS RELATED
TO INSTALLATION AND MAINTENANCE, SUCH AS TECHNICAL ASSISTANCE, REVIEW,
PLANNING, AND DESIGN. THOSE TECHNICIANS ACTUALLY PERFORMING THE
MAINTENANCE AND INSTALLATION OF EQUIPMENT ARE REQUIRED TO MAINTAIN A
CERTIFICATION BASED ON NATIONAL STANDARDS. THE CERTIFICATION PROGRAM IS
ADMINISTERED BY THE SECTOR MANAGER AND USUALLY CONSISTS OF A COMBINATION
OF ON-THE-JOB TRAINING AND TESTING. THOSE TECHNICIANS PERFORMING STAFF
FUNCTIONS AT THE REGIONAL HEADQUARTERS, WHILE NOT REQUIRED TO BE
CERTIFIED, MAY MAINTAIN A CERTIFICATION FROM A PREVIOUS POSITION IN
WHICH CERTIFICATION WAS REQUIRED.
THE MAJORITY OF THE TECHNICIANS IN THE ALASKAN REGION FALL UNDER THE
SPECIFIC CLASSIFICATION OF ELECTRONIC TECHNICIAN. /6/ THE RECORD
REVEALS THAT THE FAA HAS RECEIVED PERMISSION FROM THE CIVIL SERVICE
COMMISSION TO WRITE THE CLASSIFICATION GUIDELINES FOR THIS
CLASSIFICATION OF EMPLOYEES. HOWEVER, WHILE THE GUIDELINES MUST BE
USED, THE INDIVIDUAL JOB DESCRIPTION AND CLASSIFICATION FOR A SPECIFIC
ELECTRONIC TECHNICIAN POSITION IS STILL PREPARED IN THE REGION.
EMPLOYEES OF VARIOUS CRAFT CLASSIFICATIONS ARE ASSIGNED BOTH TO THE
REGIONAL HEADQUARTERS AND TO THE SECTORS. THOSE IN THE SECTORS PERFORM
THE DAILY REQUIRED MAINTENANCE OF THE FAA FACILITIES FOUND IN THE
SECTORS, WHILE THOSE ASSIGNED TO THE REGIONAL HEADQUARTERS BRANCHES ARE
PART OF FIELD MAINTENANCE CREWS WHICH PERFORM FACILITY MAINTENANCE AND
INSTALLATION THAT IS BEYOND THE EXPERTISE OF THE SECTOR EMPLOYEES. THE
RECORD REVEALS THAT CRAFT CLASSIFICATIONS ARE MORE NUMEROUS IN THE
ALASKAN REGION THAN IN OTHER FAA REGIONS BECAUSE OF THE INABILITY TO
CONTRACT OUT A SUBSTANTIAL PART OF THE FACILITY MAINTENANCE IN THE MANY
REMOTE FIELD OFFICES FOUND IN ALASKA. IN ADDITION, CLERICAL AND SUPPLY
CLASSIFICATIONS ARE FOUND AT BOTH REGIONAL HEADQUARTERS AND SECTOR
LOCATIONS. HOWEVER, SEVERAL JOB CLASSIFICATIONS, SUCH AS PROGRAM
ANALYST, DRAFTSMAN, AND COMMUNICATION SPECIALIST, ARE FOUND ONLY AMONG
REGIONAL HEADQUARTERS EMPLOYEES OF THE AIRWAY FACILITIES DIVISION AND
THE OTHER DIVISIONS OF THE FAA.
INTERCHANGE OF EMPLOYEES BETWEEN SECTORS DOES NOT OCCUR ON A REGULAR
BASIS. HOWEVER, INTERCHANGE DOES OCCUR REGULARLY BETWEEN EMPLOYEES
ASSIGNED TO REGIONAL HEADQUARTERS AND THE SECTORS. IN THIS CONNECTION,
THE TECHNICIANS PERFORMING INSTALLATION FUNCTIONS ASSIGNED TO THE
PLANNING AND ESTABLISHMENT BRANCH AND THE CRAFT EMPLOYEES ASSIGNED TO
THE MAINTENANCE OPERATIONS BRANCH PERFORM THEIR DUTIES IN THE FIELD
WHENEVER THEY ARE NEEDED. IN ADDITION, THOSE TECHNICIANS ASSIGNED TO
THE BRANCHES OF THE REGIONAL HEADQUARTERS WHO ARE RESPONSIBLE FOR STAFF
FUNCTIONS, RATHER THAN MAINTENANCE OR INSTALLATION, GENERALLY SPEND A
PORTION OF THEIR TIME IN THE SECTORS GATHERING INFORMATION OR PERFORMING
TECHNICAL REVIEW.
THE RECORD REVEALS THAT TRANSFERS WITHIN THE AIRWAY FACILITIES
DIVISION OCCUR ON A REGULAR BASIS AT ALL LEVELS AND HAVE OCCURRED IN THE
PAST BETWEEN SECTORS, BETWEEN REGIONAL HEADQUARTERS AND THE SECTORS, AND
BETWEEN REGIONS. WHILE TRANSFERS HAVE OCCURRED FROM ONE DIVISION TO
ANOTHER INVOLVING REGIONAL HEADQUARTERS EMPLOYEES, THE EVIDENCE
ESTABLISHES THAT TRANSFERS BETWEEN REGIONAL HEADQUARTERS AND THE SECTORS
HAVE BEEN MORE FREQUENT. IN THIS CONNECTION, THE RECORD REFLECTS THAT
IT IS NOT UNCOMMON FOR EMPLOYEES OF THE AIRWAY FACILITIES DIVISION IN
THE ALASKAN REGION CLASSIFIED AS TECHNICIANS TO FOLLOW A FIELD-TO
REGIONAL HEADQUARTERS-TO FIELD JOB PROGRESSION. IN ADDITION, SPECIFIC
EXAMPLES WERE CITED OF CLERICALS TRANSFERRING FROM A SECTOR TO THE
REGIONAL HEADQUARTERS OFFICE AND OF A DRAFTSMAN IN THE REGIONAL
HEADQUARTERS WHO APPLIED FOR AN OBTAINED A POSITION AS A TECHNICIAN IN
ONE OF THE SECTORS.
THE AREA OF CONSIDERATION FOR PROMOTIONS AMONG THE PETITIONED FOR
EMPLOYEES IS AT THE LOWEST LEVEL AT WHICH THE MANPOWER DIVISION OF THE
ALASKAN REGION DETERMINES THAT A REASONABLE NUMBER OF APPLICANTS WOULD
BE AVAILABLE. BECAUSE OF THE SMALL NUMBER OF EMPLOYEES IN THE ALASKAN
REGION RELATIVE TO OTHER FAA REGIONS AND THE UNAVAILABILITY OF TRAINED
PERSONNEL LOCALLY, THE RECORD REVEALS THAT THE AREA OF CONSIDERATION IN
THE ALASKAN REGION TENDS TO BE BROADER THAN IN MOST REGIONS AND IS
REGIONWIDE OR NATIONWIDE IN MOST CASES. WITH RESPECT TO REDUCTIONS IN
FORCE, THE EVIDENCE ESTABLISHED THAT, EXCEPT IN UNUSUAL CASES INVOLVING
LARGE NUMBERS OF EMPLOYEES, THE AREA OF CONSIDERATION WOULD BE THE LOCAL
COMMUTING AREA FOR WAGE GRADE EMPLOYEES AND FOR GENERAL SCHEDULE
EMPLOYEES, GRADES 1 THROUGH 6. FOR THOSE GENERAL SCHEDULE EMPLOYEES
ABOVE GRADE 6 OF THE AREA OF CONSIDERATION FOR A REDUCTION IN FORCE
WOULD BE REGIONWIDE.
THE RECORD REFLECTS THAT THE PERSONNEL POLICIES AFFECTING THE
PETITIONED FOR EMPLOYEES HAVE BEEN ESTABLISHED AGENCY-WIDE BY THE FAA.
HOWEVER, EACH REGION IS RESPONSIBLE FOR DEVELOPING ITS OWN PROGRAM FOR
ADMINISTERING THESE POLICIES IN THE REGION. IN THIS REGARD, THE ALASKAN
REGIONAL DIRECTOR HAS DELEGATED FULL AUTHORITY FOR MOST PERSONNEL
MATTERS TO THE AIRWAY FACILITIES DIVISION CHIEF, WHO IS ASSISTED IN
THESE MATTERS BY THE FAA ALASKAN REGIONAL MANPOWER DIVISION, WHICH KEEPS
THE PERSONNEL FILES OF ALL EMPLOYEES IN THE REGION INCLUDING AIRWAY
FACILITIES DIVISION EMPLOYEES. THE REGIONAL DIRECTOR RETAINS THE
AUTHORITY FOR THE NEGOTIATION OF AGREEMENTS, AND HE IS ASSISTED IN SUCH
MATTERS BY THE MANPOWER DIVISION WHICH HAS A LABOR RELATIONS STAFF FOR
THAT PURPOSE. HOWEVER, HE MUST FOLLOW AGENCY POLICY IN HIS NEGOTIATIONS
AND THE RECORD REFLECTS THAT THE FAA'S OFFICE OF PERSONNEL AND TRAINING
MAY INTERVENE IN THE NEGOTIATIONS WHEN IT CONSIDERS THAT ITS EXPERTISE
IS REQUIRED.
BASED ON ALL OF THE ABOVE CIRCUMSTANCES, I FIND THAT THE PETITIONED
FOR UNIT, CONSISTING OF ALL EMPLOYEES UNDER THE CHIEF OF THE AIRWAY
FACILITIES DIVISION IN THE ALASKAN REGION, IS AN APPROPRIATE UNIT FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION. THUS, THE EVIDENCE ESTABLISHES
THAT ALL OF THE EMPLOYEES ARE UNDER THE SUPERVISION OF THE DIVISION
CHIEF WHO WAS THE ULTIMATE RESPONSIBILITY FOR PERSONNEL MATTERS
INVOLVING THE EMPLOYEES IN THE UNIT FOUND APPROPRIATE. IN ADDITION, ALL
OF THE EMPLOYEES SHARE A COMMON MISSION, IN MANY INSTANCES SIMILAR JOB
CLASSIFICATIONS AND DUTIES, SIMILAR WORKING CONDITIONS, AND ALL OF THEIR
PERSONNEL FILES ARE KEPT AT THE REGIONAL LEVEL. IT WAS NOTED ALSO THAT
AREA OF CONSIDERATION FOR REDUCTION IN FORCE INVOLVING A SUBSTANTIAL
NUMBER OF EMPLOYEES IN THE UNIT FOUND APPROPRIATE IS REGIONWIDE AND
THAT, WHILE THE AREA OF CONSIDERATION FOR PROMOTIONS IS OFTEN
NATIONWIDE, THE EVIDENCE ESTABLISHED THAT IT WAS MAINTAINED AT A
REGIONWIDE OR LOWER LEVEL WHENEVER POSSIBLE. MOREOVER, IN MY VIEW, THE
UNIT FOUND APPROPRIATE WILL PROMOTE EFFECTIVE DEALINGS AS THE LEVEL OF
RECOGNITION WILL BE CONSISTENT WITH THE FAA'S DELEGATION OF NEGOTIATION
AUTHORITY AND THE LEVEL AT WHICH THE AGENCY OPERATIONS WILL BE PROMOTED
AS UNIT FRAGMENTATION WILL BE REDUCED BY INCLUDING IN ONE DIVISION-WIDE
REGIONAL UNIT SEVERAL LESS COMPREHENSIVE UNITS AND CERTAIN UNREPRESENTED
EMPLOYEES.
CONTRARY TO THE ACTIVITY'S CONTENTION THAT THE EMPLOYEES ASSIGNED TO
THE THREE BRANCHES OF THE AIRWAY FACILITIES DIVISION WHO ARE LOCATED AT
THE ALASKAN REGIONAL HEADQUARTERS SHOULD NOT BE INCLUDED IN THE CLAIMED
UNIT BECAUSE THEY DO NOT SHARE A COMMUNITY OF INTEREST WITH THE
EMPLOYEES ASSIGNED TO FIELD FACILITIES, I FIND THAT SUCH EMPLOYEES DO,
IN FACT, SHARE A COMMUNITY OF INTEREST WITH THE PETITIONED FOR EMPLOYEES
OF THE AIRWAYS FACILITIES DIVISION. THUS, BOTH REGIONAL HEADQUARTERS
AND FIELD EMPLOYEES ARE UNDER THE SUPERVISION OF THE CHIEF OF THE
DIVISION AND THEY SHARE A COMMON MISSION, IN MANY INSTANCES SIMILAR JOB
CLASSIFICATIONS AND, GENERALLY, THE SAME AREAS OF CONSIDERATION FOR
PROMOTIONS AND REDUCTIONS IN FORCE. IN ADDITION, THE EVIDENCE
ESTABLISHES THAT SUBSTANTIAL INTERCHANGE AND TRANSFERS HAVE OCCURRED
BETWEEN THE EMPLOYEES OF THE REGIONAL HEADQUARTERS AND THE FIELD.
MOREOVER, IN MY VIEW, EXCLUDING FROM THE UNIT THE REGIONAL HEADQUARTERS
EMPLOYEES IN QUESTION, AND, AT THE SAME TIME, INCLUDING THOSE EMPLOYEES
ADMINISTRATIVELY ASSIGNED TO A REGIONAL HEADQUARTERS BRANCH WHO SPEND
MOST OF THEIR TIME IN THE FIELD, AS AGREED UPON BY THE PARTIES (SEE
FOOTNOTE 5 ABOVE) WOULD RESULT IN FRAGMENTATION AS IT WOULD SEPARATE FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION EMPLOYEES AT THE SAME BRANCH LEVEL
WHO ARE UNDER THE SAME BRANCH SUPERVISION.
UNDER ALL OF THESE CIRCUMSTANCES, I FIND THAT THE FOLLOWING EMPLOYEES
CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
UNDER EXECUTIVE ORDER 11491, AS AMENDED:
ALL EMPLOYEES UNDER THE SUPERVISION OF THE CHIEF, AIRWAY FACILITIES
DIVISION, ALASKAN
REGION, FEDERAL AVIATION ADMINISTRATION, EXCLUDING ALL PROFESSIONAL
EMPLOYEES, MANAGEMENT
OFFICIALS, CONFIDENTIAL EMPLOYEES, TEMPORARY INTERMITTENT EMPLOYEES,
EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
GUARDS, AND SUPERVISORS AS
DEFINED IN EXECUTIVE ORDER 11491, AS AMENDED.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED, AS EARLY AS
POSSIBLE, BUT NOT LATER THAN 60 DAYS FROM THE DATE BELOW. THE
APPROPRIATE AREA DIRECTOR SHALL SUPERVISE THE ELECTION, SUBJECT TO THE
ASSISTANT SECRETARY'S REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE
UNIT WHO WERE EMPLOYED DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING
THE DATE BELOW, INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD
BECAUSE THEY WERE OUT ILL, OR ON VACATION OR ON FURLOUGH, INCLUDING
THOSE IN THE MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS.
INELIGIBLE TO VOTE ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE,
SINCE THE DESIGNATED PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR
REINSTATED BEFORE THE ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER
OR NOT THEY DESIRE TO BE REPRESENTED BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3028.
DATED, WASHINGTON, D.C.
DECEMBER 18, 1975
/1/ NOTING THE ABSENCE OF ANY OBJECTIONS BY THE ACTIVITY, THE NAME OF
THE PETITIONER APPEARS AS AMENDED PURSUANT TO A REQUEST MADE BY THE
LATTER IN ITS POST-HEARING BRIEF.
/2/ IN ITS BRIEF, THE ACTIVITY RENEWED A MOTION, WHICH WAS DENIED BY
THE HEARING OFFICER AT THE HEARING, TO POSTPONE THE HEARING AND TO
CONSOLIDATE THE SUBJECT CASE WITH THE PROCEEDINGS IN CASE NOS.
30-5781(RO) AND 22-5554(RO). IN UPHOLDING THE HEARING OFFICER'S RULING
DENYING THE MOTION, IT WAS NOTED THAT A SIMILAR REQUEST BY THE ACTIVITY
WAS REJECTED BY THE ASSISTANT SECRETARY ON FEBRUARY 7, 1975, PRIOR TO
THE HEARING IN THIS MATTER. IT WAS NOTED ALSO THAT THE PETITIONS IN
CASE NOS. 30-5781(RO) AND 22-555(RO) WERE NOT TIMELY CROSS-PETITIONS
WITH REGARD TO THE PETITION IN THE SUBJECT CASE. SEE, IN THIS REGARD,
SECTION 202.5(B) OF THE ASSISTANT SECRETARY'S REGULATIONS.
/3/ THE PETITIONER FILED AN "ERRATA" TO ITS POST-HEARING BRIEF DATED
MAY 2, 1975, PORTIONS OF WHICH CHANGED OR ADDED TO THE SUBSTANCE OF ITS
ORIGINAL BRIEF. AS IT WAS FILED AFTER THE DATE FOR FILING A TIMELY
BRIEF IN THIS CASE, I HAVE NOT CONSIDERED THOSE PORTIONS OF SUCH
"ERRATA" WHICH ADDED TO OR CHANGED SUBSTANTIVELY THE POST-HEARING BRIEF.
/4/ THE OTHER FOUR OPERATING DIVISIONS FOUND IN EACH REGION ARE: AIR
TRAFFIC, FLIGHT STANDARDS, AIRPORTS, AND AVIATION MEDICAL.
/5/ AT THE HEARING, THE PARTIES STIPULATED THAT HEADQUARTERS
EMPLOYEES, WHO SPECIFICALLY ARE ASSIGNED TO THE FIELD CREW OF THE
ELECTRONICS SECTION OF THE PLANNING AND ESTABLISHMENT BRANCH AND TO THE
PLANT AND ELECTRONIC UNITS OF THE MAINTENANCE PROJECTS SECTION IN THE
MAINTENANCE OPERATIONS BRANCH, SHOULD BE INCLUDED IN ANY UNIT FOUND
APPROPRIATE, INCLUDING A UNIT CONSISTING SOLELY OF EMPLOYEES ASSIGNED TO
FIELD LOCATIONS, BECAUSE SUCH EMPLOYEES, WHILE ADMINISTRATIVELY ASSIGNED
TO THE REGIONAL OFFICE HEADQUARTERS, DEVOTE A SUBSTANTIAL AMOUNT OF
THEIR WORK TIME TO FIELD LOCATIONS AND THEY SHARE COMMON SKILLS,
TRAINING AND GENERAL WORKING CONDITIONS WITH EMPLOYEES WHO ARE ASSIGNED
TO, AND WORK IN, FIELD LOCATIONS IN ALASKA.
/6/ THERE ARE, IN FACT, OVER 230 ELECTRONIC TECHNICIANS FOUND IN THE
ALASKAN REGION AT BOTH HEADQUARTERS AND FIELD LOCATIONS. OTHER
TECHNICIAN CLASSIFICATIONS INCLUDE GENERAL FACILITIES EQUIPMENT
TECHNICIAN AND ENGINEERING TECHNICIAN.
5 A/SLMR 598; P. 759; CASE NOS. 50-9685(CA), 50-9686(CA); DECEMBER
16, 1975.
THE ADJUTANT GENERAL,
STATE OF ILLINOIS,
ILLINOIS AIR NATIONAL GUARD
A/SLMR NO. 598
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
ILLINOIS AIR CHAPTER, ASSOCIATION OF CIVILIAN TECHNICIANS, INC. (ACT)
ALLEGING, IN EFFECT, THAT THE NATIONAL GUARD BUREAU (AGENCY) VIOLATED
SECTION 19(A)(1) AND (6) OF THE ORDER BY REFUSING, PURSUANT TO SECTION
15 OF EXECUTIVE ORDER 11491, AS AMENDED, TO APPROVE A NEGOTIATED
AGREEMENT BETWEEN THE ACT AND THE ADJUTANT GENERAL, STATE OF ILLINOIS,
ILLINOIS AIR NATIONAL GUARD (ACTIVITY), COVERING A UNIT OF EMPLOYEES OF
THE 182ND TACTICAL AIR SUPPORT GROUP, A COMPONENT OF THE ACTIVITY. ALSO
INVOLVED WAS A SEPARATE COMPLAINT AGAINST THE ACTIVITY ALLEGING, IN
EFFECT, THAT ITS REFUSAL TO IMPLEMENT THE AGREEMENT, WHICH CONFORMED TO
THE PRIOR CHANGES SOUGHT BY THE AGENCY, WAS IN VIOLATION OF SECTION
19(A)(1) AND (6) OF THE ORDER.
ON SEPTEMBER 22, 1971, THE AGENCY, PURSUANT TO SECTION 15 OF THE
ORDER, RETURNED A NEGOTIATED AGREEMENT ENTERED INTO BY THE ACT AND THE
ACTIVITY, WITH A REQUEST THAT A NUMBER OF SPECIFIC CHANGES BE MADE. ON
FEBRUARY 23, 1973, THE AGENCY AGAIN REFUSED, PURSUANT TO SECTION 15 OF
THE ORDER, TO APPROVE A NEW VERSION OF THE NEGOTIATED AGREEMENT WHICH
HAD BEEN REVISED TO BRING IT INTO CONFORMITY WITH THE CHANGES ORIGINALLY
SOUGHT BY THE AGENCY. WITH RESPECT TO ARTICLE 18 OF THE REVISED
AGREEMENT, CONCERNING THE WEARING OF UNIFORMS BY THE CIVILIAN TECHNICIAN
EMPLOYEES OF THE UNIT, THE AGENCY REQUESTED TWO MINOR EDITORIAL CHANGES
SO AS TO BRING THE ARTICLE INTO CONFORMITY WITH THE LANGUAGE OF THE
AGENCY REGULATION CONCERNING THIS SUBJECT. ON APRIL 20, 1973, THE
AGENCY ONCE MORE REFUSED TO APPROVE THE AGREEMENT, WHICH, ON MARCH 26,
1973, HAD BEEN REVISED BY THE PARTIES TO INCORPORATE THE SPECIFIC
CHANGES SOUGHT BY THE AGENCY IN ITS FEBRUARY 23, 1973, DISAPPROVAL
ACTION. THIS FINAL REFUSAL OF APPROVAL WAS BASED SOLELY ON THE AGENCY'S
CONTENTION THAT ARTICLE 18 IN THE NEGOTIATED AGREEMENT CONCERNING THE
WEARING OF UNIFORMS "REPRESENTS A TOTAL DISTORTION OF THE PURPOSE AND
USAGE" OF THE AGENCY REGULATION IN THAT REGARD. THE ACTIVITY THEN
CONCLUDED THAT IT COULD NO LONGER AGREE TO A PROVISION WHICH
INCORPORATED EXCEPTIONS TO THE UNIFORM WEARING REGULATION. THUS, THE
AGREEMENT WAS NEVER IMPLEMENTED.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT WHEN THE ACTIVITY
NEGOTIATED WITH THE ACT REGARDING A PERMISSIBLE SUBJECT OF BARGAINING,
I.E., THE WEARING OF UNIFORMS, IT WAS BOUND BY ANY AGREEMENT WHICH
INCORPORATED SUCH MATTERS. WITH RESPECT TO THE AGENCY, THE
ADMINISTRATIVE LAW JUDGE FOUND THAT AFTER IT SOUGHT SPECIFIC CHANGES IN
THE FIRST TWO VERSIONS OF THE NEGOTIATED AGREEMENT IN ITS REVIEW OF THE
AGREEMENT PURSUANT TO SECTION 15 OF THE ORDER, IT WAS REQUIRED TO
PERFORM THE MINISTERIAL ACT OF APPROVING THE AGREEMENT AFTER THE
AGREEMENT HAD BEEN BROUGHT INTO CONFORMITY WITH THE SPECIFIC CHANGES IT
HAD ENUMERATED AS NECESSARY TO BRING THE AGREEMENT INTO CONFORMITY WITH
LAWS.
THE ASSISTANT SECRETARY AGREED WITH THE CONCLUSION OF THE
ADMINISTRATIVE LAW JUDGE THAT THE CONDUCT OF BOTH THE AGENCY AND THE
ACTIVITY VIOLATED THE ORDER. HE NOTED THAT SECTION 15 OF THE ORDER
CLEARLY DOES NOT EXIST SO THAT AN AGENCY MAY FRUSTRATE GOOD FAITH
BARGAINING BETWEEN ITS ACTIVITIES AND THE EXCLUSIVE REPRESENTATIVES OF
ITS ACTIVITIES' EMPLOYEES. IN THIS REGARD, WHEN SPECIFIC CHANGES
PURSUANT TO SECTION 15 ARE SOUGHT BY AN AGENCY TO CONFORM AN AGREEMENT
TO AGENCY REGULATIONS, AND THESE HAVE BEEN MADE, THE PARTIES SHOULD BE
REASONABLY ABLE TO ASSUME THAT THE AGREEMENT MEETS THE REQUIREMENTS OF
THE REGULATIONS IN ALL OTHER RESPECTS. THE ASSISTANT SECRETARY NOTED
THAT HE COULD NOT BUT CONCLUDE THAT, WHEN, AS IN THE INSTANT MATTER, THE
PARTIES HAVE TWICE MODIFIED THEIR AGREEMENT TO MEET THE AGENCY'S
SPECIFIC DIRECTIVES, THE AGENCY'S FINAL REJECTION WAS FOR SOME REASON
OTHER THAN THOSE SPECIFIED IN SECTION 15 OF THE ORDER. THUS, WHILE AN
AGENCY CAN PROPERLY GIVE THE NEGOTIATING PARTIES SPECIFIC INSTRUCTIONS
WITH RESPECT TO THE CHANGES NECESSARY IN ORDER TO BRING THEIR NEGOTIATED
AGREEMENT INTO CONFORMITY WITH ITS REGULATIONS, IN THE ASSISTANT
SECRETARY'S VIEW, IT MANIFESTS AN INTENT TO FRUSTRATE THE BARGAINING
RELATIONSHIP BETWEEN ITS SUBORDINATE ACTIVITY AND AN EXCLUSIVE
REPRESENTATIVE BY SUBSEQUENTLY REJECTING THE VERY CHANGES IT HAS
INDICATED ARE REQUIRED IN ORDER FOR THE AGREEMENT TO CONFORM TO ITS
REGULATIONS. ACCORDINGLY, HE CONCLUDED THAT THE FAILURE BY THE AGENCY
TO APPROVE THE MARCH 26, 1973, VERSION OF THE AGREEMENT CONSTITUTED AN
UNDERMINING OF THE EXCLUSIVE REPRESENTATIVE SELECTED BY THE EMPLOYEES OF
THE ACTIVITY AND RESULTED IN IMPROPER INTERFERENCE WITH, RESTRAINT, OR
COERCION OF UNIT EMPLOYEES BY THE AGENCY IN THE EXERCISE OF THEIR RIGHTS
ASSURED UNDER THE ORDER IN VIOLATION OF SECTION 19(A)(1) OF THE ORDER.
THE ASSISTANT SECRETARY ALSO NOTED THAT, WHILE THE ACTIVITY MAY HAVE
ACTED IN APPARENT GOOD FAITH BY NEGOTIATING WITH THE ACT SO AS TO
INCORPORATE THE CHANGES SOUGHT BY THE AGENCY SUBSEQUENT TO THE FIRST AND
SECOND REJECTIONS OF THE PROPOSED AGREEMENT, IT, NEVERTHELESS, CLEARLY
REFUSED TO IMPLEMENT THE AGREEMENT WHEN IT HAD BEEN BROUGHT INTO
CONFORMITY WITH THE CHANGES SOUGHT BY THE AGENCY PURSUANT TO ITS SECTION
15 REVIEW AUTHORITY. AS HE VIEWED THE PARTIES' AGREEMENT, DATED MARCH
26, 1973, TO CONSTITUTE A VALID AND BINDING NEGOTIATED AGREEMENT WHICH
THE AGENCY WAS OBLIGATED TO APPROVE, IT THUS FOLLOWED THAT THE
ACTIVITY'S FAILURE TO IMPLEMENT THIS VALID AGREEMENT WAS VIOLATIVE OF
THE ORDER, REGARDLESS OF ITS MOTIVATION. UNDER SUCH CIRCUMSTANCES, THE
ASSISTANT SECRETARY FOUND THAT THE ACTIVITY IMPROPERLY REFUSED TO MEET
AND CONFER WITH THE ACT IN VIOLATION OF SECTION 19(A)(6) OF THE ORDER BY
REFUSING TO IMPLEMENT THE AGREEMENT OF MARCH 26, 1973, AND THAT SUCH
CONDUCT RESULTED IN IMPROPER INTERFERENCE WITH, RESTRAINT, OR COERCION
OF UNIT EMPLOYEES BY THE ACTIVITY IN THE EXERCISE OF THEIR RIGHTS
ASSURED UNDER THE ORDER IN VIOLATION OF SECTION 19(A)(1).
THUS, THE ASSISTANT SECRETARY ORDERED THAT THE AGENCY APPROVE, AND
THE ACTIVITY IMPLEMENT THEREAFTER, THE NEGOTIATED AGREEMENT OF MARCH 26,
1973.
THE ADJUTANT GENERAL,
STATE OF ILLINOIS,
ILLINOIS AIR NATIONAL GUARD
AND
ILLINOIS AIR CHAPTER
ASSOCIATION OF CIVILIAN
TECHNICIANS, INC.
NATIONAL GUARD BUREAU
WASHINGTON, D.C.
AND
ILLINOIS AIR CHAPTER,
ASSOCIATION OF CIVILIAN
TECHNICIANS, INC.
ON MAY 8, 1975, ADMINISTRATIVE LAW JUDGE MILTON KRAMER ISSUED HIS
REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED CONSOLIDATED
PROCEEDING, FINDING THAT THE RESPONDENTS HAD ENGAGED IN CERTAIN UNFAIR
LABOR PRACTICES AND RECOMMENDING THAT THEY TAKE CERTAIN AFFIRMATIVE
ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S REPORT
AND RECOMMENDATIONS. THEREAFTER, THE RESPONDENT, NATIONAL GUARD BUREAU,
HEREINAFTER REFERRED TO AS THE AGENCY, FILED EXCEPTIONS AND A SUPPORTING
BRIEF IN BEHALF OF ITSELF AND THE RESPONDENT, ADJUTANT GENERAL, STATE OF
ILLINOIS, ILLINOIS AIR NATIONAL GUARD, HEREINAFTER REFERRED TO AS THE
ACTIVITY, WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THE SUBJECT CASES, INCLUDING
THE RESPONDENTS' EXCEPTIONS AND SUPPORTING BRIEF, I HEREBY ADOPT THE
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW
JUDGE, EXCEPT AS MODIFIED BELOW.
THE RECORD REVEALS THAT ON JUNE 9, 1971, THE ILLINOIS AIR CHAPTER,
ASSOCIATION OF CIVILIAN TECHNICIANS, INC., HEREINAFTER REFERRED TO AS
THE COMPLAINANT, AND THE ACTIVITY SIGNED A NEGOTIATED AGREEMENT COVERING
A UNIT OF EMPLOYEES OF THE 182ND TACTICAL AIR SUPPORT GROUP, PEORIA,
ILLINOIS, A COMPONENT OF THE ACTIVITY. THEREAFTER, ON SEPTEMBER 22,
1971, THE AGENCY, PURSUANT TO SECTION 15 OF EXECUTIVE ORDER 11491, AS
AMENDED, /1/ RETURNED THE AGREEMENT TO THE PARTIES FOR "CHANGES
NECESSARY IN ORDER TO BRING THIS AGREEMENT INTO CONFORMANCE WITH
APPLICABLE REGULATIONS, POLICIES, AND THE FEDERAL PERSONNEL MANUAL, AND
BEFORE THE AGREEMENT CAN BE APPROVED BY THE CHIEF, NATIONAL GUARD
BUREAU." SPECIFIC CHANGES WERE REQUESTED IN ALMOST ALL OF THE ARTICLES
OF THE AGREEMENT, INCLUDING ARTICLE 18, WHICH DEALT WITH THE WEARING OF
UNIFORMS BY THE EMPLOYEES IN THE UNIT, ALL OF WHOM ARE CIVILIAN
TECHNICIANS. /2/ NEGOTIATIONS WERE DISCONTINUED AT THAT TIME AS A
RESULT OF THE ASSISTANT SECRETARY'S DECISION AND ORDER IN A/SLMR NO.
105, WHEREIN THE COMPLAINANT'S CERTIFICATION, FOR REASONS NOT MATERIAL
HEREIN, WAS REVOKED. SUBSEQUENTLY, PURSUANT TO A DECISION ON APPEAL OF
THE FEDERAL LABOR RELATIONS COUNCIL, THE COMPLAINANT'S CERTIFICATION WAS
REINSTATED IN JANUARY 1973. ON JANUARY 19, 1973, THE COMPLAINANT AND
THE ACTIVITY SIGNED A NEGOTIATED AGREEMENT WHICH HAD BEEN REVISED TO
BRING IT INTO CONFORMITY WITH THE SPECIFIC CHANGES REQUESTED BY THE
AGENCY IN ITS SEPTEMBER 22, 1971, REJECTION. HOWEVER, ON FEBRUARY 23,
1973, THE AGENCY AGAIN REFUSED, PURSUANT TO ITS SECTION 15 AUTHORITY, TO
APPROVE THE AGREEMENT. WITH RESPECT TO ARTICLE 18 OF THE REVISED
AGREEMENT, THE AGENCY REQUESTED THAT TWO MINOR EDITORIAL CHANGES BE MADE
SO THAT THE ARTICLE COULD BE BROUGHT INTO CONFORMITY WITH THE LANGUAGE
OF AN AGENCY REGULATION DEALING WITH UNIFORM WEARING BY CIVILIAN
TECHNICIANS. THE REGULATION IN QUESTION, SECTION 213.2, PARAGRAPH 2-4,
OF THE TECHNICIAN PERSONNEL MANUAL (TPM), PROVIDED THAT ALL CIVILIAN
TECHNICIANS EMPLOYED BY THE NATIONAL GUARD MUST WEAR MILITARY UNIFORM
EVEN WHEN IN THEIR CIVILIAN WORK STATUS BUT THAT, "WHEN THE UNIFORM IS
DEEMED INAPPROPRIATE FOR SPECIFIC POSITIONS AND FUNCTIONS, ADJUTANT
GENERALS MAY AUTHORIZE OTHER APPROPRIATE ATTIRE." ARTICLE 18 OF THE
AGREEMENT BETWEEN THE COMPLAINANT AND THE ACTIVITY REFLECTED THE
EXCEPTIONS NEGOTIATED BY THEM WITH RESPECT TO WHEN CERTAIN EMPLOYEES
COULD WORK WITHOUT WEARING MILITARY UNIFORMS.
ON MARCH 26, 1973, THE COMPLAINANT AND THE ACTIVITY SIGNED A THIRD
AGREEMENT WHICH INCORPORATED THE SPECIFIC CHANGES SOUGHT BY THE AGENCY
IN ITS FEBRUARY 23, 1973, DISAPPROVAL ACTION. NEVERTHELESS, ON APRIL
20, 1973, THE AGENCY AGAIN REFUSED TO APPROVE THE AGREEMENT, THIS TIME
BASING ITS REJECTION SOLELY ON ITS CONCLUSION THAT ARTICLE 18 OF THE
AGREEMENT, DEALING WITH THE WEARING OF UNIFORMS, VIOLATED THE AGENCY'S
REGULATION IN THIS REGARD. THE AGENCY STATED THAT THE REVISED AGREEMENT
PROVISION "REPRESENTS A TOTAL DISTORTION OF THE PURPOSE AND USAGE OF
THAT DIRECTIVE." AS A RESULT OF THE AGENCY'S APRIL 20, 1973, DISAPPROVAL
OF THE AGREEMENT, THE ACTIVITY TOOK THE POSITION THAT IT COULD NO LONGER
AGREE TO A PROVISION WHICH ALLOWED FOR EXCEPTIONS TO THE UNIFORM WEARING
REGULATION. THUS, THE AGREEMENT WAS NEVER IMPLEMENTED.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE ACTIVITY HAD
NEGOTIATED WITH THE COMPLAINANT REGARDING A PERMISSIBLE SUBJECT OF
BARGAINING, I.E., THE WEARING OF THE UNIFORM BY CIVILIAN TECHNICIANS,
AND DETERMINED THAT WHEN AN ACTIVITY NEGOTIATES ON A PERMISSIBLE SUBJECT
AND REACHES AGREEMENT, IT IS BOUND BY ITS AGREEMENT. IN THESE
CIRCUMSTANCES, HE FOUND THAT THE AGENCY HAD VIOLATED THE ORDER BY
REJECTING THE PROPOSED AGREEMENTS OF JANUARY 19, 1973, AND MARCH 26,
1973, AFTER THE AGREEMENT HAD BEEN MODIFIED TO MEET THE SPECIFIC CHANGES
REQUIRED BY THE AGENCY TO BRING IT INTO CONFORMITY WITH ITS REGULATION.
THUS, HE CONCLUDED THAT ALTHOUGH AN AGENCY HAS AUTHORITY UNDER SECTION
15 OF THE ORDER TO APPROVE OR DISAPPROVE AN AGREEMENT, ONCE THE CHANGES
AN AGENCY REQUIRES TO BRING AN AGREEMENT INTO CONFORMITY WITH LAWS,
REGULATIONS, AND POLICIES ARE, IN FACT, MADE, ANY SUBSEQUENT REVIEW BY
THE AGENCY IS A MINISTERIAL ACT AND, IF THE AGENCY THEN REFUSES TO
PERFORM THE MINISTERIAL ACT OF APPROVING THE AGREEMENT, IT VIOLATES THE
ORDER. SPECIFICALLY, THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE AGENCY
HEREIN HAD EXCEEDED THE AUTHORITY GRANTED TO IT BY SECTION 15 OF THE
ORDER WHEN IT FAILED TO APPROVE THE JANUARY 19, 1973, AND MARCH 26,
1973, VERSIONS OF THE AGREEMENT WHICH HAD BEEN BROUGHT INTO CONFORMITY
WITH THE PRECISE CHANGES SOUGHT BY THE AGENCY IN ITS SEPTEMBER 22, 1971,
AND FEBRUARY 23, 1973, DISAPPROVALS. HE CONCLUDED THAT SUCH CONDUCT
FRUSTRATED BARGAINING BY THE ACTIVITY IN VIOLATION OF SECTION 19(A)(6)
OF THE ORDER AND HAD A RESTRAINING INFLUENCE ON UNIT EMPLOYEES IN THE
EXERCISE OF RIGHTS ASSURED BY THE ORDER, IN VIOLATION OF SECTION
19(A)(1). IN THIS REGARD, THE ADMINISTRATIVE LAW JUDGE FOUND IT
UNNECESSARY TO DECIDE WHETHER THE SECOND AND THIRD AGREEMENTS WERE, IN
FACT, VIOLATIVE OF THE AGENCY REGULATIONS, AS THE AGENCY DISAPPROVALS,
LIMITED TO SPECIFIC MATTER, IN EFFECT GRANTED EXCEPTIONS TO THE
REGULATIONS.
I AGREE WITH THE CONCLUSION OF THE ADMINISTRATIVE LAW JUDGE THAT
RESPONDENTS' CONDUCT HEREIN VIOLATED THE ORDER. CLEARLY, SECTION 15 OF
THE ORDER DOES NOT EXIST SO THAT AN AGENCY MAY FRUSTRATE GOOD FAITH
BARGAINING BETWEEN ITS ACTIVITIES AND THE EXCLUSIVE REPRESENTATIVES OF
ITS ACTIVITIES' EMPLOYEES. WHEN AN AGENCY MAKES SPECIFIC SUGGESTIONS AS
TO THE CHANGES NECESSARY TO BRING AN AGREEMENT INTO CONFORMITY WITH
APPLICABLE LAWS, EXISTING PUBLISHED AGENCY POLICIES AND REGULATIONS, AND
REGULATIONS OF OTHER APPROPRIATE AUTHORITIES, THE NEGOTIATING PARTIES
SHOULD THEN BE ABLE REASONABLY TO ASSUME THAT THE AGREEMENT MEETS SUCH
REQUIREMENTS IN ALL OTHER RESPECTS. AND WHEN, AS IN THE INSTANT CASE,
THE ACTIVITY AND THE EXCLUSIVE REPRESENTATIVE HAVE TWICE MODIFIED THEIR
AGREEMENT TO MEET THE AGENCY'S SPECIFIC DIRECTIVES, I CANNOT BUT
CONCLUDE THAT THE AGENCY'S REJECTION IS FOR SOME REASON OTHER THAN THOSE
SPECIFIED UNDER SECTION 15 OF THE ORDER. /3/ THUS, WHILE AN AGENCY MAY
INDICATE TO AN ACTIVITY, IN THE COURSE OF ITS SECTION 15 REVIEW OF A
PROPOSED AGREEMENT, THE SPECIFIC CHANGES IT DEEMS NECESSARY TO ORDER TO
BRING THE NEGOTIATED AGREEMENT INTO CONFORMITY WITH AGENCY REGULATIONS,
IN MY VIEW, THE AGENCY MANIFESTS AN INTENT TO FRUSTRATE THE BARGAINING
RELATIONSHIP BETWEEN ITS SUBORDINATE ACTIVITY AND AN EXCLUSIVE
REPRESENTATIVE BY SUBSEQUENTLY REJECTING THE VERY CHANGES IT HAS
INDICATED ARE REQUIRED IN ORDER FOR THEIR AGREEMENT TO CONFORM TO ITS
REGULATIONS.
ACCORDINGLY, I CONCLUDE THAT THE AGENCY'S CONDUCT IN REFUSING TO
APPROVE THE MARCH 26, 1973, AGREEMENT BETWEEN THE COMPLAINANT AND THE
ACTIVITY, WHICH THE EVIDENCE REVEALS HAD BEEN BROUGHT IN INTO CONFORMITY
WITH THE PRECISE CHANGES INDICATED BY THE AGENCY IN ITS FEBRUARY 23,
1973, REJECTION OF A PRIOR VERSION OF THE AGREEMENT, CONSTITUTED AN
UNDERMINING OF THE EXCLUSIVE REPRESENTATIVE SELECTED BY THE EMPLOYEES OF
THE ACTIVITY AND RESULTED IN IMPROPER INTERFERENCE WITH, RESTRAINT, OR
COERCION OF UNIT EMPLOYEES BY THE AGENCY IN THE EXERCISE OF THEIR RIGHTS
ASSURED UNDER THE ORDER IN VIOLATION OF SECTION 19(A)(1). /4/
FURTHER, WHILE THE ACTIVITY HEREIN MAY HAVE ACTED IN GOOD FAITH BY
NEGOTIATING WITH THE COMPLAINANT SO AS TO INCORPORATE THE CHANGES SOUGHT
BY THE AGENCY SUBSEQUENT TO THE FIRST AND SECOND REJECTIONS OF THE
PROPOSED AGREEMENT, IT, NEVERTHELESS, CLEARLY REFUSED TO IMPLEMENT THE
AGREEMENT WHEN IT HAD BEEN BROUGHT INTO CONFORMITY WITH THE CHANGES
SOUGHT BY THE AGENCY PURSUANT TO ITS SECTION 15 REVIEW AUTHORITY. THUS,
AS I VIEW THE AGREEMENT OF MARCH 26, 1973, TO CONSTITUTE A VALID AND
BINDING NEGOTIATED AGREEMENT WHICH THE AGENCY WAS OBLIGATED TO APPROVE,
IT FOLLOWS THAT THE ACTIVITY'S FAILURE TO IMPLEMENT THIS VALID AGREEMENT
WAS VIOLATIVE OF THE ORDER, REGARDLESS OF ITS MOTIVATION. UNDER THESE
CIRCUMSTANCES, I FIND THAT THE ACTIVITY IMPROPERLY REFUSED TO MEET AND
CONFER WITH THE COMPLAINANT IN VIOLATION OF SECTION 19(A)(6) OF THE
ORDER BY REFUSING TO IMPLEMENT THE AGREEMENT OF MARCH 26, 1973.
FURTHER, I FIND THAT SUCH CONDUCT RESULTED IN IMPROPER INTERFERENCE
WITH, RESTRAINT, OR COERCION OF UNIT EMPLOYEES BY THE ACTIVITY IN THE
EXERCISE OF THEIR RIGHTS ASSURED UNDER THE ORDER IN VIOLATION OF SECTION
19(A)(1Y.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT:
A. THE NATIONAL GUARD BUREAU, WASHINGTON, D.C., SHALL:
1. CEASE AND DESIST FROM:
INTERFERING WITH, RESTRAINING, OR COERCING UNIT EMPLOYEES OF THE
182ND TACTICAL AIR SUPPORT GROUP, ILLINOIS AIR NATIONAL GUARD, WHO ARE
REPRESENTED EXCLUSIVELY BY THE ILLINOIS AIR CHAPTER, ASSOCIATION OF
CIVILIAN TECHNICIANS, INC., BY REFUSING TO APPROVE, PURSUANT TO SECTION
15 OF THE ORDER, THE NEGOTIATED AGREEMENT OF MARCH 26, 1973, BETWEEN THE
ILLINOIS AIR CHAPTER, ASSOCIATION OF CIVILIAN TECHNICIANS, INC. AND THE
ADJUTANT GENERAL, STATE OF ILLINOIS, ILLINOIS AIR NATIONAL GUARD.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER:
(A) APPROVE THE NEGOTIATED AGREEMENT OF MARCH 26, 1973, BETWEEN THE
ILLINOIS AIR CHAPTER, ASSOCIATION OF CIVILIAN TECHNICIANS, INC. AND THE
ADJUTANT GENERAL, STATE OF ILLINOIS, ILLINOIS AIR NATIONAL GUARD.
(B) SIGN THE NOTICE MARKED "APPENDIX" DESCRIBED IN PARAGRAPH B.2(B)
BELOW.
(C) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
B. THE ADJUTANT GENERAL, STATE OF ILLINOIS, ILLINOIS AIR NATIONAL
GUARD, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO IMPLEMENT, AFTER APPROVAL BY THE NATIONAL GUARD
BUREAU, THE NEGOTIATED AGREEMENT OF MARCH 26, 1973, ENTERED INTO WITH
THE ILLINOIS AIR CHAPTER, ASSOCIATION OF CIVILIAN TECHNICIANS, INC.
(B) INTERFERING WITH, RESTRAINING, OR COERCING UNIT EMPLOYEES OF THE
182ND TACTICAL AIR SUPPORT GROUP, ILLINOIS AIR NATIONAL GUARD WHO ARE
REPRESENTED EXCLUSIVELY BY THE ILLINOIS AIR CHAPTER, ASSOCIATION OF
CIVILIAN TECHNICIANS, INC., BY REFUSING TO IMPLEMENT THE NEGOTIATED
AGREEMENT OF MARCH 26, 1973, AFTER APPROVAL BY THE NATIONAL GUARD
BUREAU.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER:
(A) IMPLEMENT, UPON APPROVAL BY THE NATIONAL GUARD BUREAU, THE
NEGOTIATED AGREEMENT AS AGREED TO ON MARCH 26, 1973, WITH THE ILLINOIS
AIR CHAPTER, ASSOCIATION OF CIVILIAN TECHNICIANS, INC.
(B) POST AT ITS 182ND TACTICAL AIR SUPPORT GROUP FACILITY, PEORIA,
ILLINOIS, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE
FURNISHED BY THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT
RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
CHIEF, NATIONAL GUARD BUREAU AND THE ADJUTANT GENERAL, STATE OF ILLINOIS
AND MAINTAINED BY THE ADJUTANT GENERAL FOR 60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
ADJUTANT GENERAL SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES
ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE COMPLAINT IN CASE NO. 50-9686(CA),
INSOFAR AS IT ALLEGES A VIOLATION OF SECTION 19(A)(6) AGAINST THE
NATIONAL GUARD BUREAU, BE, AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
DECEMBER 16, 1975
/1/ AT ALL TIMES RELEVANT HEREIN, SECTION 15 OF THE ORDER PROVIDED,
IN PART:
SECTION 15. APPROVAL OF AGREEMENTS. AN AGREEMENT-- IS SUBJECT TO
THE APPROVAL OF THE HEAD OF THE AGENCY OR AN OFFICIAL DESIGNATED BY HIM.
AN AGREEMENT SHALL BE APPROVED IF IT CONFORMS TO APPLICABLE LAWS,
EXISTING PUBLISHED AGENCY POLICIES AND REGULATIONS (UNLESS THE AGENCY
HAS GRANTED AN EXCEPTION TO A POLICY OR REGULATION) AND REGULATIONS OF
OTHER APPROPRIATE AUTHORITIES-- .
/2/ THE CHANGE REQUESTED IN ARTICLE 18 CONSISTED OF DELETING ONE
PHRASE.
/3/ IT IS CLEAR THAT AGENCY REVIEW IS LIMITED TO THE SPECIFIC MATTERS
SET FORTH IN SECTION 15, AND THAT WHERE AN ACTIVITY AND AN EXCLUSIVE
REPRESENTATIVE REACH AGREEMENT ON MATTERS WHICH DO NOT CONTRAVENE ANY OF
THE SPECIFIC MATTERS SET FORTH IN SECTION 15, THE AGENCY MAY NOT, AS A
PART OF ITS SECTION 15 REVIEW, SEEK MODIFICATION OF THE AGREEMENT MERELY
BECAUSE IT IS DISSATISFIED WITH THE NATURE OF THE AGREEMENT REACHED.
SEE AFGE COUNCIL OF LOCALS 1497 AND 2165, AND REGION 3, GENERAL SERVICES
ADMINISTRATION, BALTIMORE, MARYLAND, FLRC NO. 74A-48.
/4/ UNDER THE CIRCUMSTANCES, I FIND THAT THE AGENCY HAD NO OBLIGATION
TO MEET AND CONFER WITH THE COMPLAINANT WITH RESPECT TO THE NEGOTIATED
AGREEMENT. ACCORDINGLY, I SHALL ORDER THAT THE COMPLAINT IN CASE NO.
50-9685(CA), BE DISMISSED INSOFAR AS IT ALLEGES THAT THE AGENCY VIOLATED
SECTION 19(A)(6) OF THE ORDER. SEE NATIONAL AERONAUTICS AND SPACE
ADMINISTRATION (NASA), WASHINGTON, D.C., A/SLMR NO. 457, REVERSED ON
GROUNDS NOT MATERIAL HEREIN, FLRC NO. 74A-95.
/5/ CONTRARY TO THE RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE I
SHALL ISSUE A REMEDIAL ORDER REQUIRING, AMONG OTHER THINGS, THAT THE
RESPONDENTS CEASE AND DESIST FROM THE ACTIONS THEY HAVE ENGAGED IN WHICH
WERE VIOLATIVE OF THE ORDER.
THE NATIONAL GUARD BUREAU WILL APPROVE THE NEGOTIATED AGREEMENT OF
MARCH 26, 1973, ENTERED INTO BY THE ILLINOIS AIR CHAPTER, ASSOCIATION OF
CIVILIAN TECHNICIANS, INC. AND THE ADJUTANT GENERAL, STATE OF ILLINOIS,
ILLINOIS AIR NATIONAL GUARD.
THE NATIONAL GUARD BUREAU WILL NOT INTERFERE WITH, RESTRAIN, OR
COERCE UNIT EMPLOYEES OF THE 182ND TACTICAL AIR SUPPORT GROUP, ILLINOIS
AIR NATIONAL GUARD, WHO ARE REPRESENTED EXCLUSIVELY BY THE ILLINOIS AIR
CHAPTER, ASSOCIATION OF CIVILIAN TECHNICIANS, INC., BY REFUSING TO
APPROVE, PURSUANT TO SECTION 15 OF EXECUTIVE ORDER 11491, AS AMENDED,
THE NEGOTIATED AGREEMENT OF MARCH 26, 1973, ENTERED INTO BY THE ILLINOIS
AIR CHAPTER, ASSOCIATION OF CIVILIAN TECHNICIANS, INC. AND THE ADJUTANT
GENERAL, STATE OF ILLINOIS, ILLINOIS AIR NATIONAL GUARD.
THE ADJUTANT GENERAL, STATE OF ILLINOIS, ILLINOIS AIR NATIONAL GUARD,
WILL IMPLEMENT, UPON APPROVAL BY THE NATIONAL GUARD BUREAU, THE
NEGOTIATED AGREEMENT OF MARCH 26, 1973, ENTERED INTO WITH THE ILLINOIS
AIR CHAPTER, ASSOCIATION OF CIVILIAN TECHNICIANS, INC.
THE ADJUTANT GENERAL, STATE OF ILLINOIS, ILLINOIS AIR NATIONAL GUARD,
WILL NOT, AFTER APPROVAL BY THE NATIONAL GUARD BUREAU, REFUSE TO
IMPLEMENT THE NEGOTIATED AGREEMENT OF MARCH 26, 1973, ENTERED INTO WITH
THE ILLINOIS AIR CHAPTER, ASSOCIATION OF CIVILIAN TECHNICIANS, INC.
THE ADJUTANT GENERAL, STATE OF ILLINOIS, ILLINOIS AIR NATIONAL GUARD,
WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE UNIT EMPLOYEES OF THE 182ND
TACTICAL AIR SUPPORT GROUP, ILLINOIS AIR NATIONAL GUARD, WHO ARE
REPRESENTED EXCLUSIVELY BY THE ILLINOIS AIR CHAPTER, ASSOCIATION OF
CIVILIAN TECHNICIANS, INC., BY REFUSING TO IMPLEMENT THE NEGOTIATED
AGREEMENT OF MARCH 26, 1973, AFTER ITS APPROVAL BY THE NATIONAL GUARD
BUREAU.
DATED . . .
DATED . . .
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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICE,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR, WHOSE ADDRESS IS: 10TH FLOOR, FEDERAL OFFICE BUILDING, 230 SOUTH
DEARBORN STREET, CHICAGO, ILLINOIS, 60604, TELEPHONE: 312-353-1920.
IN THE MATTER OF
THE ADJUTANT GENERAL
STATE OF ILLINOIS
AND
ILLINOIS AIR CHAPTER, ASSOCIATION
OF CIVILIAN TECHNICIANS, INC.
NATIONAL GUARD BUREAU
WASHINGTON, D.C.
AND
ILLINOIS AIR CHAPTER, ASSOCIATION
OF CIVILIAN TECHNICIANS, INC.
VINCENT J. PATERNO
PRESIDENT, A.C.T.
348-A HUNGERFORD COURT
ROCKVILLE, MARYLAND 20850
DONALD L. BRENEMAN
LABOR-MANAGEMENT RELATIONS SPECIALIST
NATIONAL GUARD BUREAU
2630 FOX MILL ROAD
HERNDON, VIRGINIA 22070
BEFORE: MILTON KRAMER
THESE CASES ARISE UNDER EXECUTIVE ORDER 11491, AS AMENDED. THEY WERE
INITIATED BY COMPLAINTS DATED JULY 3, 1973 AND FILED JULY 5, 1973
ALLEGING VIOLATIONS BY THE RESPONDENTS OF SECTIONS 19(A)(1), (2), AND
(6) OF THE EXECUTIVE ORDER. THE VIOLATIONS WERE ALLEGED TO CONSIST OF
THE COMPLAINANT AND THE ACTIVITY (THE ADJUTANT GENERAL, THE RESPONDENT
IN CASE NO. 50-9685) REACHING A COLLECTIVE AGREEMENT INCLUDING A
PROVISION CONCERNING THE WEARING OF THE MILITARY UNIFORM WHILE
PERFORMING CIVILIAN DUTIES; THE AGENCY (THE NATIONAL GUARD BUREAU, THE
RESPONDENT IN CASE NO. 50-9686) REMANDING THE AGREEMENT WITH DIRECTIONS
TO MAKE CERTAIN CHANGES IN SUCH PROVISION; THE COMPLAINANT AND THE
ACTIVITY MAKING SUCH CHANGES; THE AGENCY AGAIN REMANDING THE AGREEMENT
WITH DIRECTIONS TO MAKE OTHER CHANGES IN SUCH PROVISION; THE
COMPLAINANT AND THE ACTIVITY MAKING SUCH CHANGES; THE AGENCY AGAIN
REMANDING THE AGREEMENT WITH DIRECTIONS TO DELETE THE PROVISION; THE
ACTIVITY REFUSING TO ABIDE BY THE AGREEMENT UNLESS SUCH PROVISION WERE
DELETED.
UNDER DATE OF JULY 27, 1973, RECEIVED AUGUST 7, 1973, THE AGENCY
FILED A RESPONSE TO THE COMPLAINT IN CASE NO. 50-9686. UNDER DATE OF
AUGUST 14, 1973 THE ACTIVITY FILED A RESPONSE TO THE COMPLAINT IN CASE
NO. 50-9685.
BY A DECISION DATED JULY 15, 1974, THE ACTING ASSISTANT REGIONAL
DIRECTOR DISMISSED THE COMPLAINTS. THE BASIS OF THE DISMISSAL WAS A
REGULATION OF THE AGENCY ISSUED BETWEEN THE FIRST AND SECOND AGREEMENTS
AND A DECISION OF THE FEDERAL LABOR RELATIONS COUNCIL /1/ WHICH HAD
HELD, AFTER THE COMPLAINTS IN THESE CASES WERE FILED, THAT THE QUESTION
OF A REQUIREMENT THAT CIVILIAN TECHNICIANS WEAR THEIR APPROPRIATE
MILITARY UNIFORMS WHILE PERFORMING THEIR CIVILIAN DUTIES WAS NOT A
SUBJECT OF MANDATORY BARGAINING.
THE COMPLAINANT APPEALED THE DISMISSALS TO THE ASSISTANT SECRETARY.
ON OCTOBER 10, 1974, THE ASSISTANT SECRETARY REVERSED THE DISMISSALS
WITH RESPECT TO SECTIONS 19(A)(1) AND (6) OF THE EXECUTIVE ORDER AND
AFFIRMED THE DISMISSALS WITH RESPECT TO SECTION 19(A)(2).
ON NOVEMBER 21, 1974, THE ASSISTANT REGIONAL DIRECTOR ISSUED AN ORDER
CONSOLIDATING THESE CASES AND THE SAME DAY ISSUED A NOTICE OF HEARING TO
BE HELD JANUARY 21, 1975 IN PEORIA, ILLINOIS. HEARINGS WERE HELD IN
THAT CITY ON JANUARY 21 AND 22. THE COMPLAINANT WAS REPRESENTED BY THE
PRESIDENT OF ITS NATIONAL ORGANIZATION. THE RESPONDENTS WERE
REPRESENTED BY THE LABOR-MANAGEMENT RELATIONS SPECIALIST OF THE NATIONAL
GUARD BUREAU. AT THE CLOSE OF THE HEARING THE TIME FOR FILING BRIEFS
WAS EXTENDED TO FEBRUARY 24, 1975. ALL PARTIES FILED TIMELY BRIEFS.
THE COMPLAINANT WAS CERTIFIED ON JULY 23, 1970 AS THE EXCLUSIVE
REPRESENTATIVE OF THE NONSUPERVISORS AND NONMANAGERIAL CIVILIAN
TECHNICIANS OF THE RESPONDENTS IN THE ILLINOIS AIR NATIONAL GUARD, 182D
TACTICAL AIR SUPPORT GROUP, AT PEORIA, ILLINOIS. PURSUANT TO AUTHORITY
CONFERRED ON IT BY THE DEPARTMENT OF DEFENSE, ON JULY 21, 1971 THE
DEPARTMENT OF THE AIR FORCE DELEGATED TO THE CHIEF OF THE NATIONAL GUARD
BUREAU THE LABOR-MANAGEMENT RELATIONS AUTHORITY OF THE DEPARTMENT WITH
RESPECT TO THE NATIONAL GUARD. THE AIR NATIONAL GUARD AT PEORIA IS
UNDER THE JURISDICTION OF THE ADJUTANT GENERAL, STATE OF ILLINOIS. TWO
OTHER UNITS OF THE AIR NATIONAL GUARD ARE UNDER THE JURISDICTION OF THAT
ADJUTANT GENERAL, ONE AT SPRINGFIELD, ILLINOIS AND THE OTHER AT O'HARE
AIRPORT.
THE NATIONAL GUARD BUREAU REGULATIONS PROVIDED: "2-5. WEARING OF
THE UNIFORM. TECHNICIANS IN THE EXCEPTED SERVICE WILL WEAR THE MILITARY
UNIFORM APPROPRIATE TO THEIR SERVICE AND FEDERALLY RECOGNIZED GRADE WHEN
PERFORMING TECHNICIAN DUTIES. WHEN THE UNIFORM IS DEEMED INAPPROPRIATE
FOR SPECIFIC POSITIONS AND FUNCTIONS, ADJUTANTS GENERAL MAY AUTHORIZE
OTHER APPROPRIATE ATTIRE. IF THE ADJUTANT GENERAL EXERCISES THIS
PREROGATIVE, THIS DOES NOT ENTITLE TECHNICIANS TO PAYMENT OF A UNIFORM
ALLOWANCE AUTHORIZED FOR DEPARTMENT OF DEFENSE CIVILIAN PERSONNEL." /2/
CIVILIAN TECHNICIANS OF THE NATIONAL GUARD ARE IN THE "EXCEPTED
SERVICE"
IN JUNE 1971 THE 182D TACTICAL AIR SUPPORT GROUP AND THE COMPLAINANT
NEGOTIATED AN AGREEMENT SUBJECT TO THE APPROVAL OF THE NATIONAL GUARD
BUREAU IN ACCORDANCE WITH SECTION 15 OF THE EXECUTIVE ORDER. INCLUDED
IN THE AGREEMENT WAS ARTICLE XVIII PERTAINING TO THE WEARING OF THE
UNIFORM. ARTICLE XVIII IN THE JUNE 1971 AGREEMENT PROVIDED:
"SECTION 1. ALL TECHNICIANS WHO ARE MEMBERS OF THE 182D TACTICAL AIR
SUPPORT GROUP WILL WEAR THE APPROPRIATE MILITARY UNIFORM IN THE
PERFORMANCE OF THEIR TECHNICIAN DUTIES WITH THE FOLLOWING EXCEPTIONS:
"A. ON OCCASIONS WHEN THE MILITARY UNIFORM IS DEEMED INAPPROPRIATE
AND SPECIFIC INSTRUCTIONS ARE ISSUED BY THE ADJUTANT GENERAL OF
ILLINOIS.
"B. PERSONNEL EMPLOYED IN THE FOLLOWING FUNCTIONAL AREAS PERFORMING
MAINTENANCE WORK OF A NATURE OTHER THAN ADMINISTRATIVE ARE AUTHORIZED TO
WEAR THE MILITARY UNIFORM OR CIVILIAN ATTIRE OF 100% COTTON MATERIAL
WITH MATCHING HEADGEAR AND WITH A STANDARD PATCH BEARING LAST NAME OVER
THE RIGHT BREAST POCKET (AS MUTUALLY AGREED UPON BY THE AGENCY AND
UNION). THERE WILL BE NO MIXTURE OF MILITARY CLOTHING AUTHORIZED IN
CONJUNCTION WITH CIVILIAN ATTIRE EXCEPT THE WEARING OF APPROVED PARKAS,
FIELD JACKETS AND FOUL WEATHER GEAR AND ONLY IN THE PERFORMANCE OF
OFFICIAL DUTIES. THOSE INDIVIDUALS AUTHORIZED CIVILIAN ATTIRE MUST
PRESENT THEMSELVES IN A CLEAN AND NEAT APPEARANCE.
TRANSPORTATION
ORGANIZATIONAL MAINTENANCE
FIELD MAINTENANCE
COMMUNICATIONS AND ELECTRONICS
MUNITIONS MANAGEMENT
GROUND COMMUNICATIONS
MISCELLANEOUS ALLOWANCES
COMMUNICATIONS-ARMAMENT ELECTRONICS
ADMINISTRATIVE SERVICES
PERSONNEL
COMPTROLLER
BASE SUPPLY
OPERATIONS
CIVILIAN ENGINEERING
MEDICAL
SECURITY POLICE
GROUND COMMUNICATIONS-ELECTRONICS OPERATIONS
SYNTHETIC TRAINER
PHOTOGRAPHIC
CHIEF OF MAINTENANCE"
ON SEPTEMBER 22, 1971, THE RESPONDENT NATIONAL GUARD BUREAU RETURNED
THE AGREEMENT UNAPPROVED WITH DIRECTIONS TO MAKE ABOUT FORTH CHANGES
"NECESSARY IN ORDER TO BRING THIS AGREEMENT INTO CONFORMANCE WITH
APPLICABLE REGULATIONS, POLICIES, AND THE FEDERAL PERSONNEL MANUAL, AND
BEFORE THE AGREEMENT CAN BE APPROVED BY THE CHIEF, NATIONAL GUARD
BUREAU." /3/ WITH RESPECT TO ARTICLE XVIII THE ONLY DIRECTION WAS:
"ARTICLE 18-SECTION 1B. DELETE 'EXCEPT THE WEARING OF APPROVED
PARKAS, FIELD JACKETS, AND
FOUL WEATHER GEAR, AND ONLY IN THE PERFORMANCE OF OFFICIAL DUTIES.'
AIR FORCE UNIFORM
REGULATIONS PROHIBIT THE MIXING OF ANY TYPE OF MILITARY GEAR WITH
CIVILIAN CLOTHING."
ON OCTOBER 29, 1971, THE ASSISTANT SECRETARY ORDERED THE AREA
ADMINISTRATOR TO REVOKE THE CERTIFICATION OF THE COMPLAINANT AS THE
EXCLUSIVE REPRESENTATIVE OF THE TECHNICIANS OF THE ILLINOIS AIR NATIONAL
GUARD, 182D TACTICAL AIR SUPPORT GROUP, AND THE AREA ADMINISTRATOR DID
SO. /4/ THE COMPLAINANT APPEALED THAT ORDER TO THE FEDERAL LABOR
RELATIONS COUNCIL. ON JUNE 22, 1972 THE COUNCIL NOTIFIED THE PARTIES
THAT IT ACCEPTED THE UNION'S PETITION FOR REVIEW AND ON NOVEMBER 17,
1972 HELD THAT THE REVOCATION OF CERTIFICATION OF REPRESENTATION SHOULD
BE SET ASIDE. /5/ ON DECEMBER 14, 1972 THE ASSISTANT SECRETARY VACATED
HIS DECERTIFICATION ORDER AND DIRECTED THE AREA ADMINISTRATOR TO
REINSTATE THE CERTIFICATION. /6/ ON DECEMBER 29, 1972, THE AREA
ADMINISTRATOR DID SO, AND ON JANUARY 5, 1973 THE ADJUTANT GENERAL
NOTIFIED THE COMPLAINANT THAT ITS EXCLUSIVE RECOGNITION AND
REPRESENTATION RIGHTS WERE REINSTATED.
WHILE COMPLAINANT'S RECOGNITION AND REPRESENTATION RIGHTS WERE IN
SUSPENSE, THE AGENCY ISSUED A NEW DIRECTIVE ON SEPTEMBER 7, 1972 WHICH
PROVIDED AS FOLLOWS:
"TECHNICIANS IN THE EXCEPTED SERVICE WILL WEAR THE MILITARY UNIFORM
APPROPRIATE TO THEIR
SERVICE AND FEDERALLY RECOGNIZED GRADE WHEN PERFORMING TECHNICIAN
DUTIES. WHEN THE UNIFORM IS
DEEMED INAPPROPRIATE FOR SPECIFIC POSITIONS AND FUNCTIONS, ADJUTANTS
GENERAL MAY AUTHORIZE
OTHER APPROPRIATE ATTIRE. IF THE ADJUTANT GENERAL EXERCISES THIS
PREROGATIVE, THIS DOES NOT
ENTITLE TECHNICIANS TO PAYMENT OF A UNIFORM ALLOWANCE AUTHORIZED FOR
DEPARTMENT OF DEFENSE
CIVILIAN PERSONNEL."
UPON REINSTATEMENT OF COMPLAINANT'S EXCLUSIVE RECOGNITION AND
REPRESENTATION RIGHTS, THE COMPLAINANT AND THE ACTIVITY AGAIN NEGOTIATED
AND MADE WHAT THEY BELIEVED WERE THE CHANGES IN THE AGREEMENT DIRECTED
BY THE AGENCY AND IN CONFORMANCE WITH THE DIRECTIVE OF SEPTEMBER 7, 1972
WHICH DID NOT CHANGE THE PRE-EXISTING REGULATIONS. /7/ THEY MADE
PRECISELY THE DIRECTED CHANGE IN ARTICLE XVIII. ON JANUARY 19, 1973,
THEY EXECUTED A NEW AGREEMENT AND AGAIN SUBMITTED IT TO THE AGENCY FOR
APPROVAL. ON FEBRUARY 23, 1973, THE AGENCY AGAIN RETURNED THE AGREEMENT
WITH DIRECTIONS FOR ABOUT TEN CHANGES. WITH RESPECT TO ARTICLE XVIII,
IT STATED:
"ARTICLE XVIII-SECTION 1B-DELETE THOSE FUNCTIONAL AREAS DEEMED
APPROPRIATE FOR THE WEARING
OF THE MILITARY UNIFORM, AS ONLY THOSE DEEMED INAPPROPRIATE MAY BE
NEGOTIATED.
"-SECTION 1B-ADDITIONALLY, AS WRITTEN IS IN VIOLATION OF THE INTENT
OF PARA. 2-4, TPM
213.2, IN THAT THERE IS NO OPTIONAL CHOICE. REF: DOD DIRECTIVE
1426.1, SEC. VII B2D." /8/
THE SAME DAY THAT THE AGENCY DISAPPROVED THE SECOND AGREEMENT, IT
ISSUED A "CLARIFICATION" OF THE REQUIREMENT THAT TECHNICIANS WEAR THE
MILITARY UNIFORM. /9/ IT STATED THAT AFTER A THOROUGH REVIEW OF ALL
CONSIDERATIONS, IT HAD BEEN CONCLUDED THAT THE EXISTING REGULATION WAS
APPROPRIATE AND DID NOT REQUIRE CHANGE. IT THEN SET FORTH AN EXTENSIVE
EXPLANATION OF THE PURPOSE OF THE REQUIREMENT. THE SECOND DISAPPROVAL
WAS MADE WITH KNOWLEDGE OF THE CLARIFICATION OF THE REGULATION. /10/
THE COMPLAINANT AND THE ACTIVITY ONCE AGAIN RESUMED NEGOTIATIONS IN
AN EFFORT TO BRING THE AGREEMENT INTO COMPLIANCE WITH THE DIRECTIONS OF
THE AGENCY. THEY ENTERED INTO A THIRD AGREEMENT ON MARCH 26, 1973 WHICH
THEY BELIEVED COMPLIED WITH THE DIRECTIONS OF THE AGENCY IN DISAPPROVING
THE SECOND AGREEMENT. THE THIRD AGREEMENT WAS NEGOTIATED BY THE
ACTIVITY AND THE FACILITY WITH CONSULTATION WITH THE OFFICE OF LABOR
RELATIONS OF THE AGENCY, /11/ AND REPRESENTED THE ACTIVITY'S
UNDERSTANDING OF THE AGENCY'S SECOND DISAPPROVAL. THE WITNESS AT THE
HEARING WHO TESTIFIED ON BEHALF OF THE AGENCY TESTIFIED THAT THE THIRD
AGREEMENT DID COMPLY WITH THE DIRECTIONS OF THE AGENCY WITH RESPECT TO
THE CHANGES NECESSARY TO OBTAIN APPROVAL OF THE AGENCY, AND I SO FIND.
/12/ NEVERTHELESS, WHEN THE THIRD AGREEMENT WAS SUBMITTED TO THE AGENCY
FOR APPROVAL IT WAS RETURNED ON APRIL 20, 1973 WITHOUT APPROVAL WITH THE
STATEMENT:
"2. ARTICLE XVIII, SECTION 1(B) VIOLATES TECHNICIAN PERSONNEL MANUAL
(TPM) 213.2,
PARAGRAPH 2-4 AND REPRESENTS A TOTAL DISTORTION OF THE PURPOSE AND
USAGE OF THAT DIRECTIVE
. . . " /13/
THE ADJUTANT GENERAL UNDERSTOOD THAT DISAPPROVAL TO MEAN THAT THE
AGREEMENT COULD BE APPROVED ONLY "WITH DELETION OF SECTION 1(B) OF
ARTICLE XVIII IN ITS ENTIRETY", /14/ SO NOTIFIED THE COMPLAINANT, AND
THAT IS THE POSITION OF THE RESPONDENTS.
THE COMPLAINANT AND THE ACTIVITY CONFERRED AGAIN AFTER THE THIRD
DISAPPROVAL. THE COMPLAINANT TOOK THE POSITION THAT THE THIRD AGREEMENT
WAS IN EFFECT.
BEFORE 1969 THERE WAS NO REQUIREMENT OF CIVILIAN TECHNICIANS WEARING
THE MILITARY UNIFORM WHILE PERFORMING CIVILIAN DUTIES. THOSE AT PEORIA
WORE MATCHING GREY WORK PANTS AND SHIRT. IN THAT YEAR THERE WAS FIRST
INSTITUTED A REQUIREMENT THAT, WITH EXCEPTIONS, THE MILITARY UNIFORM
WOULD BE REQUIRED. ON DECEMBER 23, 1969, THE ADJUTANT GENERAL ISSUED
HIS BULLETIN EMBODYING THAT REQUIREMENT, WITH EXCEPTIONS. /15/ THAT
BULLETIN WAS NOT RESCINDED UNTIL MAY 9, 1973. /16/ THE MATTER OF SUCH
REQUIREMENT HAS CAUSED CONSIDERABLE DISSATISFACTION AMONG TECHNICIANS
SINCE ITS INCEPTION.
DURING THE NEGOTIATIONS DESCRIBED ABOVE, CIVILIAN TECHNICIANS OF THE
ILLINOIS AIR NATIONAL GUARD AT SPRINGFIELD AND O'HARE, DOING THE SAME
WORK AS THEIR COUNTERPARTS OF PEORIA, WORE CIVILIAN WORK CLOTHES OF
MATCHING COLOR SHIRT AND TROUSERS. CIVILIAN TECHNICIANS IN SOME OTHER
STATES DIE NOT WEAR THE MILITARY UNIFORM. AFTER THE NEGOTIATION OF THE
THIRD AGREEMENT, AND BEFORE ITS DISAPPROVAL, REPRESENTATIVES OF THE
COMPLAINANT AND THE FACILITY WENT TO PEORIA CLOTHING STORES TO SELECT
UNIFORM LIGHT BROWN WORK CLOTHES THE TECHNICIANS WOULD OBTAIN AFTER THE
THIRD AGREEMENT SECURED THE EXPECTED APPROVAL, AND MADE ARRANGEMENTS
WITH A CLOTHES RENTAL COMPANY TO FURNISH THEM TO SUCH OF THE TECHNICIANS
AS CHOSE TO RENT THEM INSTEAD OF PURCHASING THEM.
PLAINLY THE ACTION OF THE AGENCY IN DISAPPROVING THE NEGOTIATED
AGREEMENT THE SECOND AND THIRD TIMES WAS NOT CRICKET. IT MAY EVEN BE
CHARACTERIZED AS DIRTY POOL. BUT THE QUESTION BEFORE ME IS NOT WHETHER
IT WAS REPREHENSIBLE OR UNLAWFUL BUT WHETHER IT WAS UNLAWFUL BECAUSE IN
VIOLATION OF THE EXECUTIVE ORDER.
SECTION 15 OF THE EXECUTIVE ORDER PROVIDES THAT A NEGOTIATED
AGREEMENT WITH AN EXCLUSIVE REPRESENTATIVE IS SUBJECT TO THE APPROVAL OF
THE HEAD OF THE AGENCY. FOR THE PURPOSES OF THIS CASE, THE HEAD OF THE
AGENCY IS THE CHIEF OF THE NATIONAL GUARD BUREAU.
SECTION 15 PROVIDES FURTHER:
"AN AGREEMENT SHALL BE APPROVED IF IT CONFORMS TO APPLICABLE LAWS,
EXISTING PUBLISHED
AGENCY POLICIES AND REGULATIONS (UNLESS THE AGENCY HAS GRANTED AN
EXCEPTION TO A POLICY OR
REGULATION) AND REGULATIONS OF OTHER APPROPRIATE AUTHORITIES."
IT IS ESTABLISHED BY DECISION OF THE FEDERAL LABOR RELATIONS COUNCIL
THAT THE REGULATIONS OF THE NATIONAL GUARD BUREAU CONCERNING THE WEARING
OF THE MILITARY UNIFORM BY TECHNICIANS WHILE PERFORMING CIVILIAN DUTIES
IS NOT UNLAWFUL AND THAT THEREFORE THE SUBJECT IS NOT ONE ON WHICH THE
AGENCY OR AN ACTIVITY IS REQUIRED TO BARGAIN WITH AN EXCLUSIVE
REPRESENTATIVE. /17/ BUT THAT DOES NOT MEAN THAT IT IS UNLAWFUL TO
BARGAIN ABOUT IT OR THAT AN AGREEMENT ON THE SUBJECT IS INHERENTLY
INVALID.
THUS THE PARTIES WERE PERMITTED, ALTHOUGH THE RESPONDENTS WERE NOT
OBLIGATED, TO BARGAIN CONCERNING ARTICLE XVIII. THE ADJUTANT GENERAL
WAS PERMITTED TO BARGAIN WITHIN THE LIMITS FIXED BY THE REGULATIONS OF
THE BUREAU, AND THE NATIONAL GUARD BUREAU WAS PERMITTED TO SANCTION AN
AGREEMENT REACHED BY THE ADJUTANT GENERAL WITHOUT RELEVANT LIMIT SINCE
THE ONLY RELEVANT RESTRAINT ON THE ADJUTANT GENERAL WAS A REGULATION OF
THE BUREAU TO WHICH, UNDER SECTION 15 OF THE ORDER AND THE REGULATION
ITSELF, THE BUREAU COULD GRANT AN EXCEPTION. WHEN AN AGENCY BARGAINS ON
A NON-MANDATORY BUT PERMISSIBLE SUBJECT, AND REACHES AGREEMENT, IT IS
BOUND BY THE AGREEMENT. /18/
THE ADJUTANT GENERAL THREE TIMES BARGAINED AND REACHED AGREEMENT WITH
THE COMPLAINANT ON ARTICLE XVIII, SUBJECT TO APPROVAL. THUS IT CANNOT
BE SAID THAT HE REFUSED TO BARGAIN OR DID NOT BARGAIN IN GOOD FAITH.
THE NATIONAL GUARD BUREAU SANCTIONED THE ADJUTANT GENERAL BARGAINING ON
THE SUBJECT. WHEN IT DISAPPROVED ARTICLE XVIII OF THE FIRST AGREEMENT
WITH THE STATEMENT THAT ONLY ONE CHANGE IN THAT ARTICLE WAS NECESSARY
"TO BRING THIS AGREEMENT INTO CONFORMANCE WITH APPLICABLE REGULATIONS,
POLICIES, AND THE FEDERAL PERSONNEL MANUAL, AND BEFORE THE AGREEMENT CAN
BE APPROVED BY THE CHIEF, NATIONAL GUARD BUREAU", /19/ IT WAS APPROVING
THAT ARTICLE (IF THAT ONE CHANGE SHOULD BE MADE) EITHER BECAUSE IT FOUND
IT WOULD BE IN CONFORMITY WITH "EXISTING PUBLISHED AGENCY POLICIES AND
REGULATIONS" OR BECAUSE IT "GRANTED AN EXCEPTION TO A POLICY OR
REGULATION" /20/ INSOFAR AS THE ARTICLE COULD NOT BE IN SUCH CONFORMITY
AFTER SUCH CHANGE SHOULD BE MADE.
WHEN PRECISELY THAT DIRECTED CHANGE WAS MADE IN THE SECOND ARTICLE
XVIII BY THE COMPLAINANT AND THE ACTIVITY, THE AUTHORITY OF THE AGENCY
WITH RESPECT TO THAT ARTICLE WAS FUNCTUS OFFICIO EXCEPT PERHAPS FOR THE
MINISTERIAL ACT OF SIGNING AN APPROVAL. THE CHIEF HAD ALREADY HELD THAT
WITH THAT CHANGE THE ARTICLE WOULD BE IN CONFORMITY AND THERE WAS NO
INTERVENING REGULATION BETWEEN THE FIRST AND SECOND DISAPPROVALS TO
RENDER IT NOT IN CONFORMITY. SECTION 15 OF THE ORDER DIRECTS THAT "AN
AGREEMENT SHALL BE APPROVED IF IT CONFORMS" TO THE REQUIREMENTS WHICH
THE CHIEF HAD ALREADY HELD IT WOULD CONFORM WHEN THE DIRECTED CHANGE
SHOULD BE MADE. THE SECOND DISAPPROVAL WAS THEREFORE A VIOLATION OF
THAT COMMAND OF SECTION 15 OF THE ORDER.
THE SITUATION IS THE SAME, MUTATIS MUTANDIS, WITH RESPECT TO THE
THIRD AGREEMENT. THE TESTIMONY OF BOTH THE ADJUTANT GENERAL'S PERSONNEL
OFFICER AND THE CHIEF TECHNICIAN, LABOR-MANAGEMENT RELATIONS DIVISION OF
THE NATIONAL GUARD BUREAU, THE ONLY WITNESSES WHO TESTIFIED ON BEHALF OF
THE RESPONDENTS, WAS TO THE EFFECT THAT THE THIRD AGREEMENT COMPLIED
WITH THE DIRECTIONS OF THE AGENCY'S SECOND DISAPPROVAL AND MET THE
CONDITIONS THERE SPECIFIED FOR APPROVAL. THE AGENCY VIOLATED SECTION 15
OF THE EXECUTIVE ORDER WHEN IT REFUSED TO PERFORM THE MINISTERIAL ACT OF
APPROVING THE THIRD AGREEMENT.
AN AGENCY MAY NOT PLAY FAST AND LOOSE WITH SECTION 15 OF THE
EXECUTIVE ORDER. IT DOES PLAY FAST AND LOOSE WHEN IT DISAPPROVES AN
AGREEMENT ON THE BASIS THAT THE AGREEMENT CONTAINS ONE PROVISION NOT IN
CONFORMITY WITH REGULATIONS, DISAPPROVES IT A SECOND TIME WHEN THAT
PROVISION IS CHANGED EXACTLY AS DIRECTED IN THE FIRST DISAPPROVAL ON THE
GROUND THAT TWO OTHER CHANGES ARE NECESSARY FOR APPROVAL, AND
DISAPPROVES IT A THIRD TIME WHEN THOSE TWO OTHER CHANGES ARE MADE-- ALL
WITHOUT ANY INTERVENING CHANGE IN THE REGULATIONS. SUCH CONDUCT
FRUSTRATES BARGAINING BY THE ACTIVITY IN VIOLATION OF SECTION 19(A)(6)
OF THE EXECUTIVE ORDER; AND IT HAS A RESTRAINING INFLUENCE ON UNIT
EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE ORDER, IN VIOLATION
OF SECTION 19(A)(1).
IT IS NOT MY FUNCTION TO DECIDE WHETHER THE SECOND AND THIRD
AGREEMENTS WERE IN FACT IN VIOLATION OF REGULATIONS AS ASSERTED IN THE
SECOND AND THIRD DISAPPROVALS. I CONCLUDE THAT INSOFAR AS, IF AT ALL,
THE SECOND AND THIRD AGREEMENTS (WITH RESPECT TO ARTICLE XVIII) WERE IN
VIOLATION OF PROVISIONS OTHER THAN THOSE STATED IN THE FIRST AND SECOND
DISAPPROVALS, RESPECTIVELY, THOSE DISAPPROVALS GRANTED EXCEPTIONS TO THE
REGULATIONS AS CONTEMPLATED IN SECTION 15 OF THE EXECUTIVE ORDER 11491,
AS AMENDED. /21/ OR IT MAY BE SAID THAT THE AGENCY IS ESTOPPED OR
OTHERWISE PRECLUDED FROM ASSERTING THAT THE SECOND AND THIRD AGREEMENT,
ESPECIALLY THE THIRD AGREEMENT, IS NOT IN CONFORMITY WITH REGULATIONS.
THE ORIGINAL COMPLAINTS ALLEGED VIOLATIONS OF SECTIONS 19(A)(1), (2),
AND (6) OF THE ORDER. THE ASSISTANT REGIONAL DIRECTOR DISMISSED THE
COMPLAINTS IN THEIR ENTIRETY. THE ASSISTANT SECRETARY REINSTATED THE
COMPLAINTS WITH RESPECT TO SECTIONS 19(A)(1) AND (6) AND AFFIRMED THE
DISMISSALS WITH RESPECT TO SECTION 19(A)(2). AT THE HEARING THE
COMPLAINANT MOVED THAT I REINSTATE THE COMPLAINTS WITH RESPECT TO
SECTION 19(A)(2). UNDER THE CIRCUMSTANCES SUCH ACTION WOULD BE BEYOND
MY JURISDICTION; IN THESE CIRCUMSTANCES ONLY THE ASSISTANT SECRETARY OR
THE FEDERAL LABOR RELATIONS COUNCIL COULD TAKE SUCH ACTION.
HAVING HELD THAT THE SECOND AND THIRD AGREEMENTS HAD HAD ADVANCE
APPROVAL, IT WOULD BE A MEANINGLESS GESTURE TO HOLD SIMPLY THAT THEY
WERE EFFECTIVE WHEN EXECUTED, AND SUCH HOLDING WOULD BE INADEQUATE "TO
EFFECTUATE THE POLICIES OF THE ORDER" AS AUTHORIZED BY SECTION 203.25(B)
OF THE REGULATIONS. BOTH THE SECOND AND THIRD AGREEMENTS PROVIDED THAT
THEY SHOULD REMAIN IN EFFECT FOR TWO YEARS FROM THE DATE OF THEIR
APPROVAL BY THE NATIONAL GUARD BUREAU. IF THOSE AGREEMENTS WERE ALREADY
APPROVED WHEN EXECUTED, THE TWO YEARS HAVE ALREADY EXPIRED SINCE THE
DATE OF THE EXECUTION OF EITHER OF THEM. TO BE SURE, AN AGENCY OR
ACTIVITY MAY NOT UNILATERALLY CHANGE WORKING CONDITIONS WITHOUT
AGREEMENT OR REACHING IMPASSE, EVEN IF THE AGREEMENT WAS ESTABLISHED
PURSUANT TO AGREEMENT AND THE AGREEMENT HAS EXPIRED. WORKING
CONDITIONS, HOWEVER ESTABLISHED, MAY NOT BE CHANGED WITHOUT AGREEMENT OR
UNILATERALLY AFTER IMPASSE ON NEGOTIATIONS.
BUT IN THIS CASE THE CHANGE IN WORKING CONDITIONS PROVIDED FOR IN THE
CONTRACT WAS NEVER PUT IN EFFECT. THE CIVILIAN TECHNICIANS CONTINUED TO
WEAR THE UNIFORM BECAUSE OF THE RESPONDENTS' REPUDIATION OF THE
AGREEMENTS, AND SO THE EXISTING WORKING CONDITION IS WEARING THE
MILITARY UNIFORM. IT CAN PLAUSIBLY BE ARGUED THAT WITH THE AGREEMENT
HAVING EXPIRED, REQUIRING THE CIVILIAN TECHNICIANS TO CONTINUE WEARING
THE UNIFORM WOULD NOT BE CHANGING EXISTING WORKING CONDITIONS BUT WOULD
BE CONTINUING THEM.
ON THE OTHER HAND, IT COULD JUST AS WELL BE CONSIDERED THAT THE
EXISTING WORKING CONDITION IS NOT THE WEARING OF THE MILITARY UNIFORM
(BY CERTAIN CLASSES OF TECHNICIANS) BUT BEING AUTHORIZED NOT TO DO SO.
SECTION (B) OF ARTICLE XVIII IN BOTH THE SECOND AND THIRD AGREEMENTS DID
NOT PRESCRIBE CIVILIAN ATTIRE FOR THOSE CLASSES OF CIVILIAN TECHNICIANS
BUT ONLY AUTHORIZED THEM TO WEAR CIVILIAN ATTIRE (WITH RESTRICTIONS NOT
IN CONTROVERSY). IN SUCH VIEW THE EXISTING WORKING CONDITION, AT THE
EXPIRATION OF EITHER THE SECOND OR THIRD AGREEMENT, WAS BEING AUTHORIZED
NOT TO WEAR THE MILITARY UNIFORM REGARDLESS OF WHAT THE TECHNICIANS WERE
ACTUALLY WEARING. AND IT IS SUCH WORKING CONDITION THAT MAY NOT BE
CHANGED EXCEPT BY AGREEMENT OR UNILATERALLY AFTER IMPASSE.
SECTION 203.25(B) OF THE REGULATIONS PROVIDES THAT UPON FINDING A
VIOLATION OF THE ORDER THE ASSISTANT SECRETARY "MAY REQUIRE THE
RESPONDENT TO TAKE SUCH AFFIRMATIVE ACTION AS HE DEEMS APPROPRIATE TO
EFFECTUATE THE POLICIES OF THE ORDER." WHETHER ONE SUBSCRIBES TO THE
BELIEF THAT THE EXISTING WORKING CONDITION IS WEARING THE MILITARY
UNIFORM OR THE BELIEF THAT THE EXISTING WORKING CONDITION IS BEING
AUTHORIZED NOT TO DO SO, TO EFFECTUATE THE POLICIES OF THE ORDER IT IS
APPROPRIATE FOR THE ASSISTANT SECRETARY TO ORDER THE RESPONDENT NATIONAL
GUARD BUREAU NOW TO PERFORM THE MINISTERIAL ACT OF "APPROVING" THE THIRD
AGREEMENT. I USE THE WORD "APPROVE" NOT IN THE SENSE OF THE FOURTH
DEFINITION OF THAT WORD IN WEBSTER'S NEW INTERNATIONAL DICTIONARY,
SECOND EDITION:
"4. TO HAVE OR EXPRESS A FAVORABLE OPINION OF; TO THINK WELL OF . .
. "
ONE CANNOT EFFECTIVELY ORDER ANOTHER TO "APPROVE" IN THAT SENSE ANY
MORE THAN ONE CAN EFFECTIVELY ORDER ANOTHER TO LOVE HIS NEIGHBOR OR HIS
WORK. RATHER I HERE USE THE WORD "APPROVE" IN THE SENSE OF WEBSTER'S
THIRD DEFINITION:
"3. TO SANCTION OFFICIALLY; TO RATIFY; CONFIRM . . . "
ACCORDINGLY, I RECOMMEND THAT THE RESPONDENTS BE ORDERED /22/ TO POST
A NOTICE ON BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO CIVILIAN
TECHNICIANS OF THE RESPONDENTS' 182D TACTICAL AIR SUPPORT GROUP ARE
CUSTOMARILY POSTED. THE NOTICE SHOULD STATE THAT THE CHIEF OF THE
NATIONAL GUARD BUREAU APPROVES THE THIRD AGREEMENT ON THE DATE OF
POSTING AND THAT RESPONDENTS RECOGNIZE THAT THE WORKING CONDITIONS OF
THAT AGREEMENT ARE IN FULL FORCE AND EFFECT AND WILL REMAIN SO FOR TWO
YEARS FROM SUCH DATE UNLESS CHANGED BEFORE THEN BY AGREEMENT. THE
NOTICE SHOULD QUOTE ARTICLE XVIII IN ITS ENTIRETY, AND SHOULD BE SIGNED
BY THE ADJUTANT GENERAL AND BY THE CHIEF OF THE NATIONAL GUARD BUREAU.
A FORM OF THE RECOMMENDED ORDER AND A FORM OF THE NOTICE ARE ATTACHED
HERETO. I SEE NO DESIRABLE PURPOSE THAT WOULD REALISTICALLY BE SERVED
BY THE USUAL CEASE AND DESIST ORDER AND NO FRUITFUL PURPOSE TO BE SERVED
BY REQUIRING THE NOTICE TO STATE THAT THE RESPONDENTS WILL NOT DO IT
AGAIN. IN LIGHT OF THE HISTORY OF THE DISSATISFACTION THE MILITARY
UNIFORM REQUIREMENT HAS CAUSED AMONG NATIONAL GUARD TECHNICIANS DURING
THE LAST FIVE YEARS, /23/ WHEN THE TECHNICIANS OF THE 182D TACTICAL AIR
SUPPORT GROUP ARE INFORMED THAT THE MARCH 26, 1973 AGREEMENT IS IN
EFFECT, THEY WILL HAVE ACHIEVED THEIR GOAL.
DATED: MAY 8, 1975
WASHINGTON, D.C.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491 AS AMENDED AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS ORDERS THAT THE ADJUTANT GENERAL OF
ILLINOIS AND THE CHIEF, NATIONAL GUARD BUREAU, SHALL TAKE THE FOLLOWING
ACTIONS IN ORDER TO EFFECTUATE THE PURPOSES AND POLICIES OF THE
EXECUTIVE ORDER:
(A) POST AT THE FACILITIES OF THE 182D TACTICAL AIR SUPPORT GROUP
COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE ASSISTANT
SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH
FORMS THEY SHALL BE SIGNED BY THE ADJUTANT GENERAL OF ILLINOIS AND THE
CHIEF, NATIONAL GUARD BUREAU, AND SHALL BE POSTED AND MAINTAINED BY THEM
FOR SIXTY (60) CONSECUTIVE DAYS IN CONSPICUOUS PLACES WHERE TECHNICIANS
OF THE 182D TACTICAL AIR SUPPORT GROUP ARE EMPLOYED, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO TECHNICIANS ARE
CUSTOMARILY POSTED. THEY SHALL TAKE REASONABLE STEPS TO INSURE THAT
SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY OTHER MATERIAL.
(B) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN WRITING WITHIN TWENTY (20) DAYS FROM THE DATE OF
THIS ORDER WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED:
WASHINGTON, D.C.
WE HEREBY NOTIFY OUR TECHNICIAN PERSONNEL THAT THE AGREEMENT BETWEEN
THE ADJUTANT GENERAL OF ILLINOIS AND THE ILLINOIS AIR CHAPTER,
ASSOCIATION OF CIVILIAN TECHNICIANS, INC., SIGNED ON 26 MARCH 1973, IS
APPROVED BY THE CHIEF OF THE NATIONAL GUARD BUREAU EFFECTIVE THIS DAY
AND WILL REMAIN IN EFFECT FOR TWO YEARS UNLESS CHANGED BY AGREEMENT.
ARTICLE XVIII OF THAT AGREEMENT PROVIDES AS FOLLOWS:
" SECTION 1. ALL TECHNICIANS WHO ARE MEMBERS OF THE 182D TACTICAL
AIR SUPPORT GROUP WILL
WEAR THE APPROPRIATE MILITARY UNIFORM IN THE PERFORMANCE OF THEIR
TECHNICIAN DUTIES WITH THE
FOLLOWING EXCEPTIONS:
(A) ON OCCASIONS WHEN THE MILITARY UNIFORM IS DEEMED INAPPROPRIATE
AND SPECIFIC
INSTRUCTIONS ARE ISSUED BY THE ADJUTANT GENERAL OF ILLINOIS.
(B) PERSONNEL EMPLOYED IN THE FOLLOWING FUNCTIONAL AREAS PERFORMING
MAINTENANCE WORK OF A
NATURE OTHER THAN ADMINISTRATIVE ARE AUTHORIZED TO WEAR CIVILIAN
ATTIRE OF 100% COTTON
MATERIAL WITH MATCHING HEADGEAR AND WITH A STANDARD PATCH BEARING
LAST NAME OVER THE RIGHT
BREAST POCKET (AS MUTUALLY AGREED UPON BY THE EMPLOYER AND UNION).
THERE WILL BE NO MIXTURE
OF MILITARY CLOTHING AUTHORIZED IN CONJUNCTION WITH CIVILIAN ATTIRE.
THOSE INDIVIDUALS
AUTHORIZED CIVILIAN ATTIRE MUST PRESENT THEMSELVES IN A CLEAN AND
NEAT APPEARANCE.
"TRANSPORTATION
ORGANIZATIONAL MAINTENANCE
FIELD MAINTENANCE
COMMUNICATIONS AND ELECTRONICS
MUNITIONS MANAGEMENT
GROUND COMMUNICATIONS
MISCELLANEOUS ALLOWANCES
COMMUNICATIONS-ARMAMENT-ELECTRONICS"
DATE:
THIS NOTICE MUST REMAIN POSTED FOR SIXTY (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 ASSISTANT
REGIONAL DIRECTOR OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION, U.S.
DEPARTMENT OF LABOR, WHOSE ADDRESS IS: ROOM 1033-B, 230 S. DEARBORN
STREET, CHICAGO, ILLINOIS 60604.
/1/ NATIONAL FEDERATION OF FEDERAL EMPLOYEES AND NEW MEXICO NATIONAL
GUARD, FLRC NO. 73A-13, SEPTEMBER 17, 1973.
/2/ NGR 51, ANGR 40-01, CH. 2, SEC. I, 2-5; EXH. J17.
/3/ EXH. R-1.
/4/ A/SLMR NO. 105, ILLINOIS AIR NATIONAL GUARD, 182D TACTICAL AIR
SUPPORT GROUP.
/5/ FLRC NO. 71A-59, ILLINOIS AIR NATIONAL GUARD, 182D TACTICAL AIR
SUPPORT GROUP.
/6/ A/SLMR NO. 225, ILLINOIS AIR NATIONAL GUARD, 182D TACTICAL AIR
SUPPORT GROUP.
/7/ EXH. J17.
/8/ EXH. R3.
/9/ EXH. J18.
/10/ TR. 271.
/11/ TR. 216-17.
/12/ TR. 254-55, 270-72; SEE ALSO TR. 217.
/13/ EXH. R-2.
/14/ EXH. R-2.
/15/ EXH. J14.
/16/ EXH. J13; TR. 170.
/17/ NATIONAL FEDERATION OF FEDERAL EMPLOYEES AND NEW MEXICO NATIONAL
GUARD, FLRC NO. 73A-13.
/18/ CF. THE DECISION OF THE ADMINISTRATIVE LAW JUDGE IN SAN ANTONIO
AIR LOGISTICS CENTER, SAN ANTONIO AIR MATERIEL AREA (AFLC), KELLY AIR
FORCE BASE, CASE NO. 63-5064(CA), APRIL 22, 1975, AT PAGE 6.
/19/ EXH. R1.
/20/ E.O. 11491, SEC. 15.
/21/ CF. NEW YORK ARMY AND AIR NATIONAL GUARD, A/SLMR NO. 441; SEE
ALSO ALJ DECISION IN SAN ANTONIO LOGISTICS CENTER, SAN ANTONIO AIR
MATERIEL AREA (AFLC), KELLY AIR FORCE BASE, CASE NO. 63-5064(CA), APRIL
22, 1975, AT PAGE 6.
/22/ I AM RELUCTANT TO RECOMMEND THAT THE ADJUTANT GENERAL BE ORDERED
TO DO ANYTHING. HIS OFFICE BARGAINED IN OBVIOUS GOOD FAITH AND HE DID
NOTHING WRONG EXCEPT UPON DIRECT ORDERS FROM HIS SUPERIOR. BUT HIS
INNOCENCE AND GOOD FAITH DOES NOT CHANGE THE FACT THAT THE TECHNICIANS
HERE INVOLVED WERE WRONGED AS A RESULT OF HIS FOLLOWING ORDERS AND THEY
ARE UNDER HIS JURISDICTION AND FULL RELIEF REQUIRES HIS PARTICIPATION IN
THE REMEDY SINCE HE IS THE OTHER PARTY TO THE AGREEMENT.
/23/ NATIONAL FEDERATION OF FEDERAL EMPLOYEES AND NEW MEXICO NATIONAL
GUARD, FLRC NO. 73A-13, P. 6.
5 A/SLMR 597; P. 755; CASE NO. 71-3288(CA); DECEMBER 10, 1975.
BELLINGHAM FLIGHT SERVICE STATION,
FEDERAL AVIATION ADMINISTRATION N.W. REGION
DEPARTMENT OF TRANSPORTATION,
BELLINGHAM, WASHINGTON
A/SLMR NO. 597
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY ROBERT
J. CRANE, AN INDIVIDUAL, ALLEGING, IN EFFECT, THAT THE BELLINGHAM FLIGHT
SERVICE STATION, FEDERAL AVIATION ADMINISTRATION, (FAA), N.W. REGION,
BELLINGHAM, WASHINGTON (RESPONDENT) VIOLATED SECTION 19(A)(1) AND (4) OF
THE ORDER BY DECLARING HIM ABSENT WITHOUT LEAVE FROM HIS DUTY STATION ON
OCTOBER 2 AND 3, 1974, AND BY SUBSEQUENTLY SUSPENDING HIM FOR THREE DAYS
BASED ON THIS ABSENCE, EVEN THOUGH HE HAD APPEARED AND HAD BEEN DECLARED
A NECESSARY WITNESS BY AN ADMINISTRATIVE LAW JUDGE AT A HEARING HELD IN
SAN JUAN, PUERTO RICO ON THOSE DATES.
IN SEPTEMBER, 1974 CRANE WAS INFORMED BY A FORMER SUBORDINATE OF HIS
AT HIS PRIOR PLACE OF EMPLOYMENT IN SAN JUAN, PUERTO RICO, THAT HE WOULD
BE CALLED AS A WITNESS AT AN UNFAIR LABOR PRACTICE PROCEEDING TO BE HELD
IN PUERTO RICO. THE ASSISTANT REGIONAL DIRECTOR, LMS, NEW YORK,
REFERRED THE REQUEST FOR CRANE'S APPEARANCE TO THE ADMINISTRATIVE LAW
JUDGE IN THAT PROCEEDING. ALTERNATIVE DUTY ASSIGNMENTS IN THE EVENT OF
CRANE'S ABSENCE WERE DISCUSSED WITH THE RESPONDENT AND CRANE NOTIFIED
THE RESPONDENT OF HIS INTENTION TO APPEAR AT THE PUERTO RICO HEARING.
SPECIFIC AUTHORIZATION FOR CRANE TO APPEAR WAS NEVER RECEIVED BY THE
RESPONDENT PRIOR TO THE HEARING, BUT CRANE WAS NEVER TOLD SPECIFICALLY
THAT HE COULD NOT LEAVE TO APPEAR AT THE HEARING. WHEN CRANE APPEARED
AT THE HEARING IN PUERTO RICO, HAVING PAID HIS OWN EXPENSES, THE
ADMINISTRATIVE LAW JUDGE THEREIN, HAVING BEEN APPRISED OF THE
CIRCUMSTANCES OF CRANE'S APPEARANCE, DECLARED HIM TO BE A NECESSARY
WITNESS WITHIN THE MEANING OF SECTION 206.7 OF THE ASSISTANT SECRETARY'S
REGULATIONS. THE REPRESENTATIVE OF THE FAA AT THE HEARING TOOK NO
EXCEPTION TO THIS RULING. SUBSEQUENTLY, CRANE WAS DECLARED ABSENT
WITHOUT LEAVE FOR THE TWO WORK DAYS HE HAD BEEN AT THE PUERTO RICO
HEARING AND HE WAS SUSPENDED FOR AN ADDITIONAL THREE DAYS FOR HIS
FAILURE TO REPORT TO WORK AT THAT TIME. THE RESPONDENT'S BASIC
CONTENTION WAS THAT CRANE WAS NOT AUTHORIZED TO LEAVE FOR THE PUERTO
RICO HEARING AND THAT THE ADMINISTRATIVE LAW JUDGE'S DECISION THEREIN
COULD NOT EX POST FACTO RELIEVE CRANE OF ANY CULPABILITY INVOLVED IN HIS
UNAUTHORIZED ABSENCE.
THE ADMINISTRATIVE LAW JUDGE NOTED THAT AN EMPLOYEE MAY NOT PROPERLY
APPEAR AT A HEARING UNLESS A "REQUEST FOR APPEARANCE OF WITNESSES" HAS
BEEN ISSUED BY AN ASSISTANT REGIONAL DIRECTOR, A HEARING OFFICER, OR AN
ADMINISTRATIVE LAW JUDGE PURSUANT TO A TIMELY MOTION. THE
ADMINISTRATIVE LAW JUDGE CONCLUDED, HOWEVER, THAT IF AN EMPLOYEE MAKES
AN APPEARANCE AT A HEARING PRIOR TO THE ISSUANCE OF A REQUEST, SUCH
EMPLOYEE "ACTS AT HIS PERIL" AND ONLY A SUBSEQUENT FINDING THAT THE SAID
EMPLOYEE WAS A NECESSARY WITNESS ABSOLVES THE EMPLOYEE OF ANY WRONGDOING
COMMITTED BECAUSE SUCH AN APPEARANCE WAS NOT PROPERLY AUTHORIZED.
CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THE ASSISTANT SECRETARY
FOUND THAT ALLOWING EMPLOYEES TO MAKE JUDGMENTS FOR THEMSELVES AS TO
WHETHER THEY ARE NECESSARY WITNESSES PURSUANT TO SECTION 206.7 OF THE
ASSISTANT SECRETARY'S REGULATIONS WOULD BE DISRUPTIVE OF THE ORDERLY
PROCESS REQUIRED TO IMPLEMENT PROPERLY THE EXECUTIVE ORDER EVEN IF SOME
OF THOSE JUDGMENTS ULTIMATELY WERE TO BE VINDICATED. HE NOTED THAT THE
PURPOSES OF THE ORDER WOULD BE BETTER SERVED IF THE PARTIES ADHERE TO
THE IMPLICIT MANDATE OF SECTION 206.7 THAT PRIOR APPROVAL OF A "REQUEST
FOR APPEARANCE OF WITNESSES" BE OBTAINED BEFORE ANY EMPLOYEE IS GRANTED
SUCH OFFICIAL TIME AND EXPENSES AS ARE DESCRIBED IN SECTION 206.7(G) OF
THE ASSISTANT SECRETARY'S REGULATIONS. HOWEVER, GIVEN THE CIRCUMSTANCES
HEREIN AND NOTING, AMONG OTHER THINGS, THE DECISION BY THE
REPRESENTATIVE OF THE FAA NOT TO TAKE EXCEPTION TO THE ADMINISTRATIVE
LAW JUDGE'S RULING WITH RESPECT TO CRANE'S APPEARANCE AT THE PUERTO RICO
HEARING, THE ASSISTANT SECRETARY FOUND THAT THE RESPONDENT'S FAILURE TO
ABIDE BY THE RULING IN THAT MATTER AND THE SUBSEQUENT DISCIPLINING OF
THE COMPLAINANT BECAUSE OF HIS ABSENCE FOR THAT PURPOSE WAS IN VIOLATION
OF SECTION 19(A)(4) OF THE ORDER. THE ASSISTANT SECRETARY ALSO FOUND,
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THAT SUCH CONDUCT
INTERFERED WITH, RESTRAINED, OR COERCED CRANE IN THE EXERCISE OF HIS
RIGHTS ASSURED BY THE ORDER TO JOIN AND ASSIST A LABOR ORGANIZATION AND,
THEREFORE, WAS VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER.
BELLINGHAM FLIGHT SERVICE STATION,
FEDERAL AVIATION ADMINISTRATION, N.W. REGION,
DEPARTMENT OF TRANSPORTATION,
BELLINGHAM, WASHINGTON
AND
ROBERT J. CRANE
FERNDALE, WASHINGTON
ON AUGUST 12, 1975, ADMINISTRATIVE LAW JUDGE RHEA M. BURROW ISSUED
HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES AND
RECOMMENDING THAT IT TAKE CERTAIN AFFIRMATIVE ACTIONS AS SET FORTH IN
THE ATTACHED ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATION.
THEREAFTER, THE RESPONDENT FILED EXCEPTIONS AND A SUPPORTING BRIEF WITH
RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATION, AND
THE COMPLAINANT FILED AN ANSWERING BRIEF TO THE RESPONDENT'S EXCEPTIONS.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
EXCEPTIONS AND SUPPORTING BRIEF FILED BY THE RESPONDENT AND THE
ANSWERING BRIEF FILED BY THE COMPLAINANT, I HEREBY ADOPT THE FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE, TO THE
EXTENT CONSISTENT HEREWITH.
IN REACHING HIS DISPOSITION OF THE SUBJECT COMPLAINT, THE
ADMINISTRATIVE LAW JUDGE NOTED THAT AN EMPLOYEE MAY NOT PROPERLY APPEAR
AT A HEARING UNLESS A "REQUEST FOR APPEARANCE OF WITNESSES" HAS BEEN
ISSUED BY AN ASSISTANT REGIONAL DIRECTOR, A HEARING OFFICER, OR AN
ADMINISTRATIVE LAW JUDGE PURSUANT TO A TIMELY MOTION. THE
ADMINISTRATIVE LAW JUDGE CONCLUDED, HOWEVER, THAT IF AN EMPLOYEE MAKES
AN APPEARANCE AT A HEARING PRIOR TO THE ISSUANCE OF A REQUEST, SUCH
EMPLOYEE "ACTS AT HIS PERIL" AND ONLY A SUBSEQUENT FINDING THAT THE SAID
EMPLOYEE WAS A NECESSARY WITNESS ABSOLVES THE EMPLOYEE OF ANY WRONGDOING
COMMITTED BECAUSE SUCH AN APPEARANCE WAS NOT PROPERLY AUTHORIZED.
CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, I FIND THAT ALLOWING
EMPLOYEES TO MAKE JUDGEMENTS FOR THEMSELVES AS TO WHETHER THEY ARE
NECESSARY WITNESSES AT HEARINGS WITHIN THE MEANING OF SECTION 206.7 OF
THE ASSISTANT SECRETARY'S REGULATIONS WOULD BE DISRUPTIVE OF THE ORDERLY
PROCESSES REQUIRED TO IMPLEMENT PROPERLY THE EXECUTIVE ORDER, EVEN IF
SOME OF THOSE JUDGEMENTS ULTIMATELY WERE TO BE VINDICATED. THUS, IN MY
VIEW, THE PURPOSES OF THE ORDER WOULD BE BETTER SERVED IF THE PARTIES
ADHERE TO THE IMPLICIT MANDATE OF SECTION 206.7 OF THE ASSISTANT
SECRETARY'S REGULATIONS. /1/ HOWEVER, GIVEN THE PARTICULAR
CIRCUMSTANCES HEREIN-THAT THE COMPLAINANT NOTIFIED THE RESPONDENT OF HIS
INTENTION TO APPEAR AT THE HEARING IN PUERTO RICO; THE DISCUSSION OF
ALTERNATIVE ASSIGNMENTS IN THE EVENT OF THE COMPLAINANT'S ABSENCE FROM
THE BELLINGHAM FACILITY; THE LACK OF SPECIFIC INSTRUCTIONS TO THE
COMPLAINANT THAT HE WAS NOT TO LEAVE THE RESPONDENT'S FACILITY TO APPEAR
AT THE HEARING IN PUERTO RICO; THE FINDING BY THE ADMINISTRATIVE LAW
JUDGE AT THE PUERTO RICO HEARING THAT THE COMPLAINANT WAS A NECESSARY
WITNESS WITHIN THE MEANING OF SECTION 206.7 OF THE ASSISTANT SECRETARY'S
REGULATIONS; AND THE DECISION BY THE REPRESENTATIVE OF THE FEDERAL
AVIATION ADMINISTRATION AT THE PUERTO RICO HEARING NOT TO TAKE EXCEPTION
TO THE RULING BY THE ADMINISTRATIVE LAW JUDGE THEREIN WITH RESPECT TO
THE COMPLAINANT'S APPEARANCE-- I FIND, IN AGREEMENT WITH THE
ADMINISTRATIVE LAW JUDGE, THAT THE RESPONDENT'S FAILURE TO ABIDE BY THE
RULING OF THE ADMINISTRATIVE LAW JUDGE IN THE PUERTO RICO HEARING AND
ITS SUBSEQUENT DISCIPLINING OF THE COMPLAINANT WAS IN VIOLATION OF
SECTION 19(A)(4) OF THE ORDER. I ALSO FIND, IN AGREEMENT WITH THE
ADMINISTRATIVE LAW JUDGE, THAT SUCH CONDUCT INTERFERED WITH, RESTRAINED
OR COERCED THE COMPLAINANT IN THE EXERCISE OF HIS RIGHTS ASSURED BY THE
ORDER TO JOIN AND ASSIST A LABOR ORGANIZATION AND, THEREFORE, WAS
VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE BELLINGHAM FLIGHT
SERVICE STATION, FEDERAL AVIATION ADMINISTRATION, BELLINGHAM,
WASHINGTON, SHALL:
1. CEASE AND DESIST FROM:
(A) DISCIPLINING ROBERT J. CRANE BECAUSE OF HIS APPEARANCE AT A
HEARING HELD ON OCTOBER 2
AND 3, 1974, IN SAN JUAN, PUERTO RICO, UNDER EXECUTIVE ORDER 11491,
AS AMENDED, WHEREIN HIS
APPEARANCE WAS RULED NECESSARY BY THE ADMINISTRATIVE LAW JUDGE.
(B) REFUSING TO ABIDE BY THE DECISION OF THE ADMINISTRATIVE LAW JUDGE
MADE AT A HEARING
HELD IN SAN JUAN, PUERTO RICO, ON OCTOBER 2 AND 3, 1974, UNDER
EXECUTIVE ORDER 11491, AS
AMENDED, THAT ROBERT J. CRANE WAS A NECESSARY WITNESS AND, AS SUCH,
WAS TO BE GRANTED OFFICIAL
TIME FOR THE PERIOD OF HIS PARTICIPATION IN SUCH HEARING INCLUDING
NECESSARY TRANSPORTATION
AND PER DIEM EXPENSES.
(C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED.
(A) CHANGE ROBERT J. CRANE'S WORK STATUS ON OCTOBER 2 AND 3, 1974,
FROM ABSENT WITHOUT
LEAVE TO OFFICIAL TIME STATUS.
(B) MAKE WHOLE ROBERT J. CRANE FOR ANY LOSS OF MONIES HE MAY HAVE
SUFFERED BY REASON OF THE
FAILURE OF THE AGENCY TO ABIDE BY THE RULING MADE BY THE
ADMINISTRATIVE LAW JUDGE AT A HEARING
HELD ON OCTOBER 2 AND 3, 1974, IN SAN JUAN, PUERTO RICO, UNDER
EXECUTIVE ORDER 11491, AS
AMENDED, THAT CRANE WAS A NECESSARY WITNESS.
(C) RESCIND ITS ACTION SUSPENDING ROBERT J. CRANE BY LETTER DATED
NOVEMBER 13, 1974,
EXPUNGE FROM ITS RECORDS ANY ENTRIES RELATING TO SUCH SUSPENSION, AND
MAKE WHOLE ROBERT
J. CRANE WITH RESPECT TO ANY MONIES WITHHELD DURING THE PERIOD OF
SUCH SUSPENSION.
(D) POST AT ITS FACILITY AT BELLINGHAM FLIGHT SERVICE STATION,
BELLINGHAM, WASHINGTON,
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE
FURNISHED BY THE ASSISTANT
SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF
SUCH FORMS, THEY SHALL BE
SIGNED BY THE CHIEF OF THE FLIGHT SERVICE STATION AND THEY SHALL BE
POSTED AND MAINTAINED BY
HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES,
INCLUDING ALL PLACES WHERE
NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE CHIEF SHALL TAKE
REASONABLE STEPS TO INSURE
THAT NOTICES ARE NOT ALTERED OR DEFACED OR COVERED BY ANY OTHER
MATERIAL.
(E) PURSUANT TO SECTION 203.7 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN WRITING
WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN
TAKEN TO COMPLY
HEREWITH.
DATED, WASHINGTON, D.C.
DECEMBER 10, 1975
/1/ ON P. 11 OF HIS REPORT AND RECOMMENDATION, THE ADMINISTRATIVE LAW
JUDGE CONCLUDED THAT NEITHER THE ORDER NOR THE ASSISTANT SECRETARY'S
REGULATIONS AFFORDS AN EMPLOYEE THE RIGHT OR PRIVILEGE TO BE A WITNESS
AT A HEARING TO WHICH HE IS NOT A PARTY UNLESS A TIMELY REQUEST FOR HIS
APPEARANCE HAS BEEN MADE AND GRANTED. MY DECISION HEREIN SPEAKS TO THE
RIGHTS OF EMPLOYEES WHO ARE REQUESTED TO APPEAR AS NECESSARY WITNESSES
PURSUANT TO SECTION 206.7 OF THE ASSISTANT SECRETARY'S REGULATIONS.
NOTHING HEREIN SHOULD BE CONSTRUED AS LIMITING THE RIGHTS OF EMPLOYEES
WHO WISH TO APPEAR AS WITNESSES AT SUCH HEARINGS OF THEIR OWN VOLITION
WITHOUT SEEKING SUCH EMOLUMENTS AS SECTION 206.7 OF THE REGULATIONS MAY
PROVIDE, OR SUCH WITNESSES AS THE PARTIES MAY MUTUALLY AGREE ARE
NECESSARY.
WE WILL NOT DISCIPLINE ROBERT J. CRANE BECAUSE OF HIS APPEARANCE AT A
HEARING HELD ON OCTOBER 2 AND 3, 1974, IN SAN JUAN, PUERTO RICO, UNDER
EXECUTIVE ORDER 11491, AS AMENDED, WHEREIN HIS APPEARANCE WAS RULED
NECESSARY BY THE ADMINISTRATIVE LAW JUDGE.
WE WILL NOT REFUSE TO ABIDE BY THE DECISION OF THE ADMINISTRATIVE LAW
JUDGE MADE AT A HEARING HELD IN SAN JUAN, PUERTO RICO, ON OCTOBER 2 AND
3, 1974, UNDER EXECUTIVE ORDER 11491, AS AMENDED, THAT ROBERT J. CRANE
WAS A NECESSARY WITNESS AND, AS SUCH, WAS TO BE GRANTED OFFICIAL TIME
FOR THE PERIOD OF HIS PARTICIPATION IN SUCH HEARING INCLUDING NECESSARY
TRANSPORTATION AND PER DIEM EXPENSES.
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
EXECUTIVE ORDER.
WE WILL CHANGE ROBERT J. CRANE'S WORK STATUS ON OCTOBER 2 AND 3,
1974, FROM ABSENT WITHOUT LEAVE TO OFFICIAL TIME STATUS.
WE WILL MAKE WHOLE ROBERT J. CRANE FOR ANY LOSS OF MONIES HE MAY HAVE
SUFFERED BY REASON OF THE FAILURE OF THE AGENCY TO ABIDE BY THE RULING
MADE BY THE ADMINISTRATIVE LAW JUDGE AT A HEARING HELD ON OCTOBER 2 AND
3, 1974, IN SAN JUAN, PUERTO RICO, UNDER EXECUTIVE ORDER 11491, AS
AMENDED, THAT CRANE WAS A NECESSARY WITNESS.
WE WILL RESCIND OUR ACTION IN SUSPENDING ROBERT J. CRANE BY LETTER
DATED NOVEMBER 13, 1974, EXPUNGE FROM OUR RECORDS ANY ENTRIES RELATING
TO SUCH SUSPENSION, AND MAKE WHOLE ROBERT J. CRANE WITH RESPECT TO ANY
MONIES WITHHELD DURING THE PERIOD OF SUCH SUSPENSION.
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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, WHOSE
ADDRESS IS: ROOM 9061, FEDERAL OFFICE BUILDING, 450 GOLDEN GATE AVENUE,
SAN FRANCISCO, CALIFORNIA 94102.
5 A/SLMR 596; P. 753; CASE NOS. 22-6269(CU), 22-6291(CU); DECEMBER
10, 1975.
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
OFFICE OF THE SECRETARY, HEADQUARTERS
A/SLMR NO. 596
THIS CASE INVOLVED A PETITION FOR CLARIFICATION OF UNIT (CU) FILED BY
THE ACTIVITY-PETITIONER SEEKING TO EXCLUDE A BUDGET ANALYST, GS-14, FROM
THE EXCLUSIVELY RECOGNIZED UNIT, AND A CU PETITION FILED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 41, AFL-CIO (AFGE) SEEKING TO
INCLUDE A BUDGET ANALYST, GS-13, IN THE EXCLUSIVELY RECOGNIZED UNIT. IN
THIS REGARD, THE ACTIVITY-PETITIONER CONTENDED THAT THE BUDGET ANALYST,
GS-14, WAS A MANAGEMENT OFFICIAL AND THAT UNDER SECTION 1(B) OF THE
ORDER HIS FUNCTIONS AS A UNION CHIEF NEGOTIATOR RAISED A CONFLICT OR
APPARENT CONFLICT OF INTEREST WITH HIS OFFICIAL DUTIES. FURTHER, IT
ASSERTED THAT THE BUDGET ANALYST, GS-13, WAS A MEMBER OF THE MANAGEMENT
NEGOTIATING TEAM AND, THEREFORE, WAS A MANAGEMENT OFFICIAL. THE AFGE
CONTENDED, ON THE OTHER HAND, THAT THE AFOREMENTIONED EMPLOYEES WERE NOT
MANAGEMENT OFFICIALS AND SHOULD BE INCLUDED IN THE EXCLUSIVELY
RECOGNIZED UNIT. THE AFGE REPRESENTS EXCLUSIVELY A UNIT OF
NON-PROFESSIONAL EMPLOYEES OF THE ACTIVITY.
THE ASSISTANT SECRETARY FOUND THAT THE TWO BUDGET ANALYSTS WERE NOT
MANAGEMENT OFFICIALS WITHIN THE MEANING OF THE ORDER. WITH REGARD TO
THEIR OFFICIAL DUTIES, HE NOTED THAT THE BUDGET GUIDELINES AND ANALYSES
PREPARED BY THESE EMPLOYEES DO NOT EXTEND BEYOND THAT OF AN EXPERT
RENDERING RESOURCE INFORMATION WITH RESPECT TO PREVIOUSLY ESTABLISHED
POLICY. ADDITIONALLY, HE NOTED THAT THE EMPLOYEES' ROLE IN MAKE
RECOMMENDATIONS DOES NOT EXTEND TO THE POINT OF ACTIVE PARTICIPATION IN
THE ULTIMATE DETERMINATION OF POLICY. FURTHER, NOTING THAT THERE WAS NO
EVIDENCE THAT THE BUDGET ANALYST, GS-13, ACTIVELY ENGAGED IN THE
NEGOTIATING PROCESS ON BEHALF OF AGENCY MANAGEMENT, THE ASSISTANT
SECRETARY FOUND THAT, STANDING ALONE, THE EMPLOYEE'S MERE DESIGNATION AS
A MEMBER OF THE MANAGEMENT NEGOTIATING TEAM DID NOT WARRANT HER REMOVAL
FROM THE EXCLUSIVELY RECOGNIZED UNIT.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE AFGE UNIT BE
CLARIFIED BY INCLUDING IN SUCH UNIT THE AFOREMENTIONED BUDGET ANALYSTS.
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
OFFICE OF THE SECRETARY, HEADQUARTERS
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 41, AFL-CIO
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
OFFICE OF THE SECRETARY, HEADQUARTERS
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 41, AFL-CIO
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER
MADELINE E. JACKSON. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING
ARE FREE FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THE SUBJECT CASES, THE ASSISTANT SECRETARY
FINDS:
IN CASE NO. 22-6269(CU), THE ACTIVITY-PETITIONER SEEKS TO CLARIFY THE
STATUS OF JOSEPH E. COOK, BUDGET ANALYST, GS-560-14, REQUESTING THAT HE
BE EXCLUDED FROM THE EXCLUSIVELY RECOGNIZED UNIT REPRESENTED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 41, AFL-CIO, HEREIN
CALLED AFGE. /1/
IN CASE NO. 22-6291(CU), THE AFGE SEEKS TO CLARIFY THE STATUS OF JANE
EASTON, BUDGET ANALYST, GS-560-13, REQUESTING THAT SHE BE INCLUDED IN
THE EXCLUSIVELY RECOGNIZED UNIT REPRESENTED BY THE AFGE.
THE ACTIVITY-PETITIONER CONTENDS THAT JOSEPH E. COOK IS A MANAGEMENT
OFFICIAL WITHIN THE MEANING OF THE ORDER AND THAT UNDER SECTION 1(B) OF
THE ORDER HIS FUNCTION AS THE AFGE'S CHIEF NEGOTIATOR RAISES A CONFLICT
OR APPARENT CONFLICT OF INTEREST WITH HIS OFFICIAL DUTIES. /2/ FURTHER,
THE ACTIVITY-PETITIONER MAINTAINS THAT JANE EASTON, A MEMBER OF THE
MANAGEMENT NEGOTIATING TEAM, IS A MANAGEMENT OFFICIAL WITHIN THE MEANING
OF THE ORDER. CONVERSELY, THE AFGE CONTENDS THAT THE AFOREMENTIONED
EMPLOYEES ARE NOT MANAGEMENT OFFICIALS WITHIN THE MEANING OF THE ORDER
AND SHOULD BE INCLUDED IN THE EXCLUSIVELY RECOGNIZED UNIT.
THE MISSION OF THE ACTIVITY IS TO PROVIDE LEADERSHIP TO THE
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE (HEW AND, UNDER THE
DIRECTION OF THE SECRETARY OF HEW, TO PROVIDE ADVICE, ASSISTANCE AND
SERVICES TO THE AGENCIES AND TO THE REGIONAL AND FIELD COMPONENTS OF
HEW.
JOSEPH E. COOK IS EMPLOYED AS A BUDGET ANALYST, GS-560-14, IN THE
BUDGET STANDARDS AND PRESENTATION BRANCH OF THE DIVISION OF BUDGET
REVIEW. THE BRANCH HAS THE RESPONSIBILITY FOR SPECIFYING THE FORMAT OF
BUDGET SUBMISSIONS OF HEW AGENCIES AND FOR PROVIDING TECHNICAL
ASSISTANCE REGARDING THE BUDGET. AS A SENIOR BUDGET ANALYST, COOK HAS
THE RESPONSIBILITY OF OVERSEEING THE EFFECTIVE PRESENTATION OF HEW
AGENCY BUDGETS WITHIN HEW AND BEFORE THE OFFICE OF MANAGEMENT AND THE
BUDGET (OMB) AND THE CONGRESS. BASED ON CONGRESSIONAL AND OMB
INSTRUCTIONS AND HIS KNOWLEDGE OF HEW PROGRAMS, HE DRAFTS BUDGET FORMAT
GUIDELINES WHICH ARE TO BE FOLLOWED BY HEW AGENCIES IN PREPARING THEIR
BUDGETS. IN THIS CONNECTION, THE RECORD ESTABLISHES THAT IN DRAFTING
BUDGET GUIDELINES AND IN REVIEWING AGENCY BUDGET SUBMISSIONS FOR
CONFORMANCE TO SUCH GUIDELINES, COOK MAKES NO RECOMMENDATIONS REGARDING
PROGRAM CONTENT, EMPLOYMENT LEVELS, SPENDING LEVELS, OR OTHER ASPECTS OF
BUDGET POLICY. FURTHER, HIS WRITTEN RECOMMENDATIONS ARE SUBMITTED TO
THE DIVISION DIRECTOR FOR REVIEW AND FREQUENT REVISION OCCURS.
ADDITIONALLY, THE TECHNICAL ASSISTANCE HE PROVIDES TO OMB AND TO
CONGRESS DOES NOT EXTEND TO RECOMMENDATIONS REGARDING BUDGET POLICY.
BASED ON THE FOREGOING, IT IS CLEAR THAT COOK DOES NOT PARTICIPATE IN
THE FORMATION OR DETERMINATION OF AGENCY POLICY. RATHER, HIS VARIOUS
FUNCTIONS ARE IN THE NATURE OF AN EXPERT OR RESOURCE PERSON RENDERING
RESOURCE INFORMATION OR RECOMMENDATIONS WITH RESPECT TO EXISTING POLICY.
/3/ UNDER THESE CIRCUMSTANCES, I FIND THAT JOSEPH E. COOK, BUDGET
ANALYST, GS-560-14, IS NOT A MANAGEMENT OFFICIAL WITHIN THE MEANING OF
THE ORDER AND SHOULD BE INCLUDED IN THE EXCLUSIVELY RECOGNIZED UNIT.
JANE EASTON IS EMPLOYED AS A BUDGET ANALYST, GS-560-13, IN THE
DIVISION OF PLANNING AND ANALYSIS OF THE OFFICE OF THE DEPUTY ASSISTANT
SECRETARY, FINANCE. THE DIVISION HAS THE RESPONSIBILITY WITHIN HEW FOR
THE REVIEW, ANALYSIS AND APPRAISAL OF THE FINANCIAL ELEMENTS OF BUDGET
PROGRAM EXECUTION AND FOR THE DEVELOPMENT AND EXECUTION OF POLICIES
RELATING TO THE EXPENDITURE AND CONTROL OF FUNDS. IN HER CAPACITY AS
SENIOR BUDGET ANALYST, EASTON ASSISTS IN DEVELOPING BUDGET GUIDELINES
AND DIRECTIVES FOLLOWED BY HEW AGENCIES OPERATING UNDER CONTINUING
RESOLUTIONS, AND REVIEWS SPENDING PLANS SUBMITTED BY AGENCIES FOR
CONFORMANCE TO THESE GUIDELINES. SUCH GUIDELINES ARE BASED ON THE
CONTINUING RESOLUTIONS AND ON PAST BUDGET PRECEDENTS. IN THIS REGARD
THE EVIDENCE ESTABLISHES THAT HER RECOMMENDATIONS CONFORM TO PREVIOUSLY
ESTABLISHED BUDGET POLICY AND SHE HAS NO INFLUENCE OVER SPENDING LEVELS,
EMPLOYMENT CEILINGS, PROGRAM CONTENT OR OTHER ASPECTS OF BUDGET POLICY.
FURTHER, HER RECOMMENDATIONS ARE REVIEWED BY THE PROJECT LEADER OR BY
THE DIVISION DIRECTOR. WHILE THE RECORD REVEALS THAT SHE MAY BE
REQUIRED TO ASSESS THE OUTLAY IMPACT OF CONGRESSIONAL BUDGET ACTIONS,
HER RECOMMENDATIONS IN THIS REGARD ARE IN THE NATURE OF TECHNICAL
ASSISTANCE RATHER THAN POLICY RECOMMENDATIONS. ADDITIONALLY, THE RECORD
REVEALS THAT HER RECOMMENDATIONS REGARDING THE DISPOSITION OF AN AGENCY
BUDGET UNDERRUN AND THE DEFINING OF THE FUNCTION OF REGIONAL
COMPTROLLERS WERE SUBJECT TO REVIEW AND DID NOT EXTEND TO ACTIVE
PARTICIPATION IN THE DETERMINATION OF POLICY.
IN CONNECTION WITH THE PERFORMANCE OF HER DAY TO DAY JOB FUNCTIONS, I
FIND THAT THE EVIDENCE ESTABLISHES THAT JANE EASTON ACTS AS AN EXPERT OR
RESOURCE PERSON RENDERING RESOURCE INFORMATION OR RECOMMENDATIONS AND
DOES NOT PARTICIPATE IN THE ULTIMATE DETERMINATION OF POLICY.
FURTHER, IN ADDITION TO HER OFFICIAL DUTIES, THE RECORD REVEALS THAT
JANE EASTON SERVES ON THE MANAGEMENT NEGOTIATING TEAM, APPARENTLY ONLY
AS A RESOURCE PERSON RENDERING BUDGET INFORMATION. THERE WAS NO
EVIDENCE THAT SHE WAS ACTIVELY ENGAGED IN THE NEGOTIATING PROCESS ON
BEHALF OF AGENCY MANAGEMENT OR THAT SHE WAS INVOLVED IN THE DEVELOPMENT
AND IMPLEMENTATION OF MANAGEMENT POLICIES IN CONNECTION THEREWITH.
UNDER THESE CIRCUMSTANCES, I FIND THAT, STANDING ALONE, HERE MERE
DESIGNATION AS A MEMBER OF THE MANAGEMENT NEGOTIATING TEAM IS NOT
SUFFICIENT JUSTIFICATION FOR REMOVING HER FROM THE EXCLUSIVELY
RECOGNIZED UNIT. /4/
UNDER ALL OF THE ABOVE CIRCUMSTANCES, I FIND THAT JANE EASTON, BUDGET
ANALYST, GS-560-13, IS NOT A MANAGEMENT OFFICIAL WITHIN THE MEANING OF
THE ORDER AND SHOULD BE INCLUDED IN THE EXCLUSIVELY RECOGNIZED UNIT.
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, FOR
WHICH THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 41,
AFL-CIO, WAS CERTIFIED ON JANUARY 24, 1973, BE, AND HEREBY IS, CLARIFIED
BY INCLUDING IN SAID UNIT JOSEPH E. COOK, BUDGET ANALYST, GS-560-14, AND
JANE EASTON, BUDGET ANALYST, GS-560-13.
DATED, WASHINGTON, D.C.
DECEMBER 10, 1975
/1/ ON JANUARY 24, 1973, THE AFGE WAS CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE IN A UNIT OF, "ALL NONPROFESSIONAL GENERAL SCHEDULE AND
WAGE GRADE EMPLOYEES OF THE OFFICE OF THE SECRETARY, DEPARTMENT OF
HEALTH, EDUCATION AND WELFARE, LOCATED IN THE WASHINGTON, D.C.,
METROPOLITAN AREA.
EXCLUDED: ALL PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, SUMMER AIDES, SUPERVISORS, AND GUARDS AS DEFINED IN
EXECUTIVE ORDER 11491, AND EMPLOYEES IN POSITIONS WHICH ARE CONFIDENTIAL
WITH RESPECT TO LABOR RELATIONS MATTERS."
/2/ SECTION 1(B) PROVIDES: "PARAGRAPH (A) OF THIS SECTION DOES NOT
AUTHORIZE PARTICIPATION IN THE MANAGEMENT OF A LABOR ORGANIZATION OR
ACTING AS A REPRESENTATIVE OF SUCH AN ORGANIZATION BY A SUPERVISOR,
EXCEPT AS PROVIDED IN SECTION 24 OF THIS ORDER, OR BY AN EMPLOYEE WHEN
THE PARTICIPATION OR ACTIVITY WOULD RESULT IN A CONFLICT OR APPARENT
CONFLICT OF INTEREST OR OTHERWISE BE INCOMPATIBLE WITH LAW OR WITH THE
OFFICIAL DUTIES OF THE EMPLOYEE."
/3/ CF. UNITED STATES DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
REGIONAL OFFICE VI, A/SLMR NO. 266 AND DEPARTMENT OF THE AIR FORCE,
ARNOLD ENGINEERING DEVELOPMENT CENTER, AIR FORCE SYSTEMS COMMAND, ARNOLD
AIR FORCE STATION, TENNESSEE, A/SLMR NO. 135.
/4/ THIS IS NOT TO SAY, HOWEVER, THAT, IN OTHER CIRCUMSTANCES,
EMPLOYEES WHOSE OFFICIAL DUTIES ARE NOT MANAGERIAL IN SCOPE MAY NOT, BY
REASON OF SERVING ON MANAGEMENT'S NEGOTIATING TEAM, BE EFFECTIVELY
REMOVED FROM THE BARGAINING UNIT THEREBY. THUS, IN MY VIEW, WHERE
EMPLOYEES, IN SERVING ON MANAGEMENT'S NEGOTIATING TEAM, ARE INVOLVED IN
THE NEGOTIATING PROCESS, AND ARE ENGAGED IN, OR PRIVY TO, THE
DEVELOPMENT AND IMPLEMENTATION OF MANAGEMENT POLICIES IN CONNECTION WITH
SUCH NEGOTIATIONS THERE IS A FUNDAMENTAL CONFLICT OF INTEREST IF SUCH
EMPLOYEES REMAIN IN THE BARGAINING UNIT. THEREFORE, I BELIEVE SUCH
EMPLOYEES MUST BE EXCLUDED FROM THE UNIT AS EITHER MANAGEMENT OFFICIALS
OR CONFIDENTIAL EMPLOYEES. ON THE OTHER HAND, WHERE EMPLOYEES MERELY
SERVE AS RESOURCE PERSONS TO THE MANAGEMENT NEGOTIATING TEAM, RENDERING
TECHNICAL DATA AND INFORMATION ACQUIRED AS THE CONSEQUENCE OF THE
EMPLOYEES' OFFICIAL DUTIES, AND THE EMPLOYEES ARE NOT INVOLVED IN THE
ACTUAL NEGOTIATING PROCESS, I SEE NO FUNDAMENTAL CONFLICT OF INTEREST
AND, THEREFORE, NO JUSTIFICATION FOR THE REMOVAL OF SUCH EMPLOYEES FROM
THE BARGAINING UNIT.
5 A/SLMR 595; P. 745; CASE NO. 71-2975; DECEMBER 10, 1975.
U.S. DEPARTMENT OF AGRICULTURE,
FOREST SERVICE,
REGIONAL OFFICE,
JUNEAU, ALASKA
A/SLMR NO. 595
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY AN
INDIVIDUAL, RAYMOND BROWN (COMPLAINANT), ALLEGING THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1), (2) AND (6) OF THE ORDER BY FAILING TO CONFER
OR CONSULT WITH THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 251
(NFFE) BY UNILATERALLY CHANGING THE DEADLINE BY WHICH EMPLOYEES AFFECTED
BY A MOVE FROM JUNEAU TO SITKA, ALASKA, WERE REQUIRED TO MOVE TO THE NEW
LOCATION, AND BY DISCOURAGING MEMBERSHIP IN THE NFFE BY NOT LOCATING
TEMPORARY GOVERNMENT HOUSING FOR THE COMPLAINANT, RAYMOND BROWN, THE
DESIGNATED REPRESENTATIVE OF THE NFFE, AND BY PLACING THE COMPLAINANT ON
ABSENT WITHOUT LEAVE (AWOL) STATUS.
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THE ASSISTANT
SECRETARY FOUND THAT THE COMPLAINANT HAD ACTED AS AN INDIVIDUAL, RATHER
THAN IN BEHALF OF THE EXCLUSIVE REPRESENTATIVE, IN CHARGING THE
RESPONDENT WITH AN IMPROPER FAILURE TO MEET AND CONFER WITH THE
EXCLUSIVE REPRESENTATIVE, AND THAT THE OBLIGATION TO MEET AND CONFER SET
FORTH IN SECTION 11(A) OF THE ORDER IS OWED BY AN AGENCY OR ACTIVITY TO
THE LABOR ORGANIZATION WHICH IS THE EXCLUSIVE REPRESENTATIVE OF
EMPLOYEES IN THE UNIT, AND NOT TO ANY INDIVIDUAL. THEREFORE, THE
ASSISTANT SECRETARY CONCURRED IN THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDATION THAT THE ALLEGATION IN THE COMPLAINT ALLEGING A VIOLATION
OF SECTION 19(A)(6) OF THE ORDER BE DISMISSED. FURTHERMORE, THE
ASSISTANT SECRETARY AGREED WITH THE ADMINISTRATIVE LAW JUDGE'S
CONCLUSION THAT THE RESPONDENT HAD NOT ENGAGED IN ANY ACTS VIOLATIVE OF
SECTION 19(A)(1) OF THE ORDER.
HOWEVER, THE ASSISTANT SECRETARY FOUND, CONTRARY TO THE
ADMINISTRATIVE LAW JUDGE, THAT THE RESPONDENT DID, IN FACT, ASSERT AS A
DEFENSE TO THE 19(A)(2) ALLEGATIONS IN THE COMPLAINT THAT THE ISSUES
RAISED BY SUCH ALLEGATION WERE THE SUBJECT OF AN APPEALS PROCEDURE WHICH
HAD BEEN INVOKED. THEREFORE, IN THE ASSISTANT SECRETARY'S VIEW,
CONSIDERATION OF THESE ISSUES WAS BARRED BY SECTION 19(D) OF THE ORDER.
THUS, ALTHOUGH THE ASSISTANT SECRETARY AGREED WITH THE ADMINISTRATIVE
LAW JUDGE'S CONCLUSION ON THE MERITS THAT THE EVIDENCE DID NOT SUPPORT
FINDING THAT THE RESPONDENT VIOLATED SECTION 19(A)(2) OF THE ORDER BY
SUSPENDING AND ULTIMATELY DISCHARING THE COMPLAINANT, HE FOUND,
ADDITIONALLY, THAT DISMISSAL OF THESE ALLEGATIONS BASED ON SECTION 19(D)
OF THE ORDER WAS WARRANTED.
U.S. DEPARTMENT OF AGRICULTURE,
FOREST SERVICE,
REGIONAL OFFICE,
JUNEAU, ALASKA
AND
RAYMOND L. BROWN
ON JULY 29, 1975, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK ISSUED HIS
REPORT AND RECOMMENDATION /1/ 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 EXCEPTIONS
WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE
ADMINISTRATIVE LAW JUDGE KENNEDY 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 REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE
COMPLAINANT'S EXCEPTIONS, I HEREBY ADOPT THE ADMINISTRATIVE LAW JUDGE'S
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS, AS MODIFIED HEREIN.
IN FOOTNOTE 6 OF HIS REPORT AND RECOMMENDATION, THE ADMINISTRATIVE
LAW JUDGE INDICATED THAT THE RESPONDENT HAD NOT ASSERTED SECTION 19(D)
OF THE ORDER /2/ AS A DEFENSE TO THE ALLEGATION IN THE COMPLAINT THAT
THE RESPONDENT HAD VIOLATED SECTION 19(A)(2) OF THE ORDER. CONTRARY TO
THE ADMINISTRATIVE LAW JUDGE, I FIND THAT THE RESPONDENT, IN FACT, DID
CONTEND THAT THE ISSUES INVOLVED IN THE SECTION 19(A)(2) ALLEGATION
HEREIN WERE SUBJECT TO AN APPEALS SYSTEM; THAT IT ASSERTED THAT THE
APPEALS SYSTEM HAD BEEN INVOKED ON THESE MATTERS; THAT THE ISSUES, IN
FACT, WERE CONSIDERED UNDER THE APPEALS SYSTEM; AND, THEREFORE, THAT
UNDER SECTION 19(D) OF THE ORDER THESE MATTERS SHOULD NOT BE CONSIDERED
IN THIS PROCEEDING. IN THIS REGARD, THE RECORD REVEALED THAT AFTER THE
COMPLAINANT HAD RESTED HIS CASE, THE RESPONDENT'S COUNSEL STATED THAT:
. . . SEVERAL OF THE ITEMS UNDER QUESTION HERE SHOULD NOT BE, SINCE .
. . SECTION 19-D
(SIC) OF THE EXECUTIVE ORDER 11491 EXCLUDES THEM-- EXCLUDES ITEMS
WHICH ARE APPEALABLE UNDER
THE STATUTORY APPEALS-- THE SAME FACTS ARE BEING APPEALED CONSIDERED
BY AN ADMINISTRATIVE
JUDGE OF THE U.S. DEPARTMENT OF AGRICULTURE AT THE PRESENT TIME.
(TR. P. 107)
FURTHER, THE APPEAL, OF WHICH THE ADMINISTRATIVE LAW JUDGE TOOK
JUDICIAL NOTICE IN FOOTNOTE 5 OF HIS REPORT AND RECOMMENDATION,
SPECIFICALLY CONSIDERED, AMONG OTHER THINGS, WHETHER THE COMPLAINANT'S
DISCHARGE WAS ". . . AS A REPRISAL FOR HIS EXERCISING HIS
RESPONSIBILITIES AS AN OFFICIAL IN THE NFFE."
UNDER THESE CIRCUMSTANCES, I FIND THAT THE ISSUES RAISED BY THE
COMPLAINT, CONCERNING WHETHER THE COMPLAINANT WAS DISCRIMINATED AGAINST
BECAUSE OF HIS UNION ACTIVITIES, WERE ENCOMPASSED WITHIN THE ABOVE-NOTED
ADVERSE ACTION APPEAL. ACCORDINGLY, WHILE I AGREE WITH THE
ADMINISTRATIVE LAW JUDGE'S CONCLUSION ON THE MERITS THAT THE EVIDENCE
HEREIN DID NOT SUPPORT A FINDING THAT THE RESPONDENT VIOLATED SECTION
19(A)(2) OF THE ORDER BY SUSPENDING AND ULTIMATELY DISCHARGING THE
COMPLAINANT, I FIND ADDITIONALLY THAT DISMISSAL OF THESE ALLEGATIONS
BASED ON SECTION 19(D) OF THE ORDER WAS WARRANTED.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 71-2975 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
DECEMBER 10, 1975
IN THE MATTER OF
U.S. DEPARTMENT OF AGRICULTURE
FOREST SERVICE
REGIONAL OFFICE
JUNEAU, ALASKA
AND
RAYMOND L. BROWN
FRANK C. ARNOLD
REGIONAL PERSONNEL OFFICER
FOREST SERVICE
P.O. BOX 1628
JUNEAU, ALASKA
RAYMOND L. BROWN
P.O. BOX 823
JUNEAU, ALASKA
BEFORE: THOMAS W. KENNEDY
/1/ THE HEARING IN THIS CASE WAS HELD BEFORE ADMINISTRATIVE LAW JUDGE
THOMAS W. KENNEDY ON JANUARY 27 AND 28, 1975. SUBSEQUENT TO THE CLOSE
OF THE HEARING JUDGE KENNEDY PASSED AWAY. THEREAFTER, ADMINISTRATIVE
LAW JUDGE WILLIAM NAIMARK WAS DESIGNATED AND ASSIGNED TO PREPARE THE
REPORT AND RECOMMENDATION IN THIS MATTER.
/2/ SECTION 19(D) PROVIDES, IN RELEVANT PART: "ISSUES WHICH CAN
PROPERLY BE RAISED UNDER AN APPEALS PROCEDURE MAY NOT BE RAISED UNDER
THIS SECTION."
PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON DECEMBER 19,
1974, BY THE ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES
ADMINISTRATION OF THE U.S. DEPARTMENT OF LABOR, SAN FRANCISCO REGION, A
HEARING IN THE ABOVE CAPTIONED CASE WAS HELD BEFORE ADMINISTRATIVE LAW
JUDGE THOMAS W. KENNEDY /1/ ON JANUARY 27 AND 28, 1974 IN JUNEAU,
ALASKA.
THE PROCEEDING HEREIN WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS
AMENDED (HEREIN CALLED THE ORDER) BY THE FILING OF A COMPLAINT ON MAY
31, 1974 BY RAYMOND L. BROWN, AN INDIVIDUAL, (HEREIN CALLED THE
COMPLAINANT) AGAINST U.S. DEPARTMENT OF AGRICULTURE, FOREST SERVICE,
REGIONAL OFFICE, JUNEAU, ALASKA (HEREIN CALLED THE RESPONDENT). IT WAS
ALLEGED IN SAID COMPLAINT THAT RESPONDENT VIOLATED SECTION 19(A)(1) AND
(6) OF THE ORDER BY (A) NOT CONSULTING WITH LOCAL 251, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES RE THE EFFECT OF ITS DECISION TO
RELOCATE THE CHATHAM AREA HEADQUARTERS FROM JUNEAU TO SITKA, ALASKA, (B)
WITHHOLDING INFORMATION SO THAT LOCAL 251 DID NOT KNOW OF THE DECISION
NOR ABOUT THE ADVERSE IMPACT CREATED THEREBY, (C) PLACING LOCAL 251'S
DESIGNATED REPRESENTATIVE ON AWOL ON FEBURARY 4, 1974 AND SEPARATING HIM
FROM SERVICE ON MARCH 18, 1974.
AN AMENDED COMPLAINT WAS FILED BY COMPLAINANT AGAINST RESPONDENT ON
OCTOBER 18, 1974 ALLEGING VIOLATIONS OF SECTION 19(A)(1)(2) AND (6).
THE AMENDED COMPLAINT ALLEGED THAT RESPONDENT FAILED TO CONFER OR
CONSULT WITH LOCAL 251 NFFE BY UNILATERALLY CHANGING THE DEADLINE BY
WHICH EMPLOYEES AFFECTED BY THE MOVE FROM JUNEAU TO SITKA WERE REQUIRED
TO REPORT TO THE LATTER LOCATION; THAT RESPONDENT DISCOURAGED
MEMBERSHIP IN SAID LOCAL 251 BY NOT LOCATING TEMPORARY GOVERNMENT
HOUSING FOR RAYMOND BROWN, THE COMPLAINANT AND DESIGNATED REPRESENTATIVE
OF LOCAL 251, AND BY PLACING BROWN ON AWOL ON OR ABOUT FEBRUARY 4, 1974.
RESPONDENT FILED A RESPONSE TO THE COMPLAINTS IN WHICH IT DENIED ANY
OBLIGATION TO CONSULT AS TO THIS REASSIGNMENT AND, MOREOVER, MAINTAINED
LOCAL 251 NEVER REQUESTED CONSULTATION REGARDING SAME. FURTHER, IT
AVERRED THAT BROWN WAS TERMINATED FOR REFUSING TO REPORT TO SITKA AS
DIRECTED-- ALL OF WHICH WAS APPEALED BY BROWN THROUGH THE STATUTORY
APPEALS SYSTEM. ACCORDINGLY, RESPONDENT DENIES IT HAS VIOLATED THE
ORDER.
BOTH PARTIES WERE AFFORDED FULL OPPORTUNITY AT THE HEARING TO BE
HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS CROSS-EXAMINE
WITNESSES. THEREAFTER THE PARTIES FILED BRIEFS WHICH HAVE BEEN DULY
CONSIDERED.
UPON THE ENTIRE RECORD IN THIS CASE, AND FROM ALL OF THE TESTIMONY
AND EVIDENCE ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS,
CONCLUSIONS, AND RECOMMENDATIONS:
1. AT ALL TIMES MATERIAL HEREIN NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL NO. 251, JUNEAU, ALASKA WAS THE COLLECTIVE BARGAINING
REPRESENTATIVE OF ALL NON-SUPERVISORY GS AND WG EMPLOYEES IN THE ALASKA
REGION.
2. BOTH LOCAL 251 AND RESPONDENT WERE PARTIES TO A COLLECTIVE
BARGAINING AGREEMENT COVERING THE AFORESAID EMPLOYEES, WHICH AGREEMENT
WAS EXECUTED ON MARCH 28, 1972 AND EFFECTIVE BY ITS TERMS FOR A PERIOD
OF TWO YEARS FROM THE DATE OF ITS APPROVAL BY THE DIRECTOR OF PERSONNEL,
OFFICE OF THE SECRETARY OF AGRICULTURE.
3. COMPLAINANT HEREIN HAS BEEN EMPLOYED FOR APPROXIMATELY 26 YEARS
WITH THE FOREST SERVICE, AND IN 1973 HE WORKED AS A FORESTER IN THE
FOREST SUPERVISORS OFFICE OF THE CHATHAM AREA, NORTH TONGASS NATIONAL
FOREST (RECREATION LANDS DIVISION), JUNEAU, ALASKA. FOR THE PAST FIVE
YEARS COMPLAINANT HAS BEEN ACTIVE ON BEHALF OF LOCAL 251. ALTHOUGH HE
DID NOT HOLD AN OFFICE IN SAID UNION, COMPLAINANT SERVED AS ITS
DESIGNATED REPRESENTATIVE AT ALL TIMES MATERIAL HEREIN.
4. IN ACCORDANCE WITH A PROPOSED REORGANIZATION OF THE ALASKA
REGION-- AS APPROVED ON JULY 25, 1972-- REGIONAL FORESTER C. A. YATES
ANNOUNCED A DECISION /2/ ON APRIL 23, 1973 THAT THE AREA HEADQUARTERS
FOR THE NORTHERN HALF OF THE TONGASS NATIONAL FOREST WOULD BE LOCATED IN
SITKA RATHER THAN JUNEAU, ALASKA.
5. SUBSEQUENT TO THIS ANNOUNCEMENT BROWN INQUIRED OF FERDY BOUCHARD,
MANAGEMENT REPRESENTATIVE, AS TO WHY THE UNION WAS NOT CONSULTED RE THE
MOVE. ACCORDING TO BROWN'S TESTIMONY, BOUCHARD REPLIED THAT IT WAS NOT
A MATTER SUBJECT TO CONSULTATION. HOWEVER, BROWN TESTIFIED THAT THE
EMPLOYER'S REPRESENTATIVE ASSURED HIM IT WOULD TAKE ONE YEAR TO
IMPLEMENT THE MOVE, AND THUS THE EMPLOYEES COULD MAKE PROPER ARRANGEMENT
FOR HOUSING AND THE RELOCATION. THE DECISION WAS THEREFORE ACCEPTED,
ACCORDING TO COMPLAINANT, WITH NO FURTHER PROTEST.
6. ON JUNE 1, 1973, YATES ISSUED A DIRECTIVE THAT SEVEN EMPLOYEES,
INCLUDING COMPLAINANT, WOULD BE REASSIGNED /3/ TO SITKA ON SEPTEMBER 2,
1973. IT FURTHER RECITED THAT CERTAIN OTHER NAMED INDIVIDUALS WOULD BE
REASSIGNED TO ANCHORAGE AND PETERSBURG ON SPECIFIED DATES IN AUGUST AND
SEPTEMBER, 1973.
7. COMPLAINANT BROWN WROTE A LETTER DATED AUGUST 20, 1973 TO THE
AREA MANAGER AT CHATHAM (VINCENT N. OLSON), ADVISING THAT HE HAD MADE
TWO TRIPS TO SITKA IN AN EFFORT TO LOCATE HOUSING AND THAT NO ADEQUATE
FACILITIES WERE AVAILABLE. BROWN STATED THAT THE COST OF BUILDING A
HOUSE WAS PROHIBITIVE, AND THAT HE WAS UNABLE TO FIND ACCOMMODATIONS TO
MEET HIS NEEDS BY SEPTEMBER 2.
8. IN REPLY TO BROWN'S LETTER, OLSON WROTE THE COMPLAINANT ON AUGUST
28, REQUESTING THAT THE EMPLOYEE GIVE A DATE WHEN HE WILL BE ABLE TO
COMPLETE HIS MOVE TO SITKA. FURTHER, HE STATED A WOMAN CALLED AND
INFORMED HIM THAT SHE HAD A THREE BEDROOM HOUSE FOR RENT, AND OLSON
INFORMED BROWN THE NAME OF THE WOMAN AND OTHER DETAILS.
9. IN A MEMO DATED AUGUST 30, 1973 BROWN REQUESTED THAT HIS
REPORTING DATE BE EXTENDED TO JUNE 30, 1973 IN VIEW OF THE ACUTE HOUSING
PROBLEM IN SITKA.
10. OLSON WROTE YATES A MEMO DATED SEPTEMBER 5, 1973 STATING HE DID
NOT BELIEVE THAT BROWN MADE AN OBJECTIVE EFFORT TO SECURE HOUSING IN
SITKA AND THAT THE EMPLOYEE COULD NOT EXPECT TO FIND THE SAME HOUSING
SITUATION TO PREVAIL THERE AS IN JUNEAU. THE MANAGER COMMENTED THAT IT
WAS NECESSARY TO RELOCATE BROWN IN SITKA SO HE COULD WORK MORE CLOSELY
WITH THE PROGRAM MANAGER AND STAFF PEOPLE. HE ALSO SUGGESTED THE
COMPLAINANT BE GRANTED TILL DECEMBER 31, 1973 TO MAKE HOUSING
ARRANGEMENTS, BUT IF HE DID NOT SUCCEED BY THAT DATE, THE EMPLOYEE
SHOULD BE SEPARATED FROM SERVICE.
11. IN A MEMO DATED SEPTEMBER 6, 1973 YATES ADVISED OLSON TO
ACCOMPLISH THE REASSIGNMENT AS SOON AS POSSIBLE, AND HE STATED THAT THE
EFFECTIVE DATE WAS CHANGED TO NOVEMBER 11, 1973. YATES ALSO SAID THAT
FURTHER EXTENSIONS WOULD BE CONSIDERED BASED ON THE DEGREE OF SINCERE
EFFECT TO LOCATE SUITABLE HOUSING AND COMPLETE THE MOVE. FURTHER, IF
PLANS WERE NOT FIRMING UP BY NOVEMBER 1, EFFORTS MADE TO OBTAIN
ACCOMMODATIONS SHOULD BE DOCUMENTED.
12. IN REPLY TO A LETTER HE RECEIVED FROM SENATOR GRAVEL PROTESTING
THE MOVE TO SITKA, REGIONAL FORESTER WROTE GRAVEL ON SEPTEMBER 10, 1973
EXPLAINING THE REASON FOR RELOCATING THE HEADQUARTERS, AND STATED THAT
EMPLOYEES WERE BEING ACCORDED TIME TO MOVE AND FIND HOUSING. HE ALSO
REMARKED THAT HE WAS SORRY A FEW INDIVIDUALS WERE UNHAPPY ABOUT THE MOVE
AND "INVOLVED THE UNION" . . . THAT "LESS THAN TEN EMPLOYEES OUT OF 300
BELONG TO THE UNION".
13. BROWN WROTE OLSON AGAIN ON NOVEMBER 1, 1973 OUTLINING HIS
EFFORTS TO FIND HOUSING IN SITKA, MENTIONED HIS PLANS TO BUILD A HOUSE
AND REQUESTED THAT HIS MOVE BE DEFERRED UNTIL JUNE 30, 1974.
14. ON NOVEMBER 6, 1973 OLSON WROTE YATES RECOMMENDING THAT THE
POSITION HELD BY BROWN BE ELIMINATED TO IMPROVE THE EFFICIENCY OF THE
ORGANIZATION AND SAVE EXPENSES.
15. A FURTHER MEMO FROM OLSON TO YATES, DATED NOVEMBER 15, 1973,
REFERRED TO THE TIGHTNESS OF HOUSING IN SITKA AND SUGGESTED THAT
EMPLOYEES SCHEDULED TO MOVE THERE BE GIVEN UNTIL JANUARY 15, 1974.
FURTHER OLSON SUGGESTED THAT THE EMPLOYEES BE ADVISED THAT IF THEY FAIL
TO REPORT BY THAT DATE, THEY'LL BE DEEMED AWOL AND SUBJECT TO
TERMINATION. IN REGARD TO BROWN, HE STATED THAT CONSIDERATION BE GIVEN
TO RELOCATING SAID INDIVIDUAL TO ANOTHER POSITION, ALTHOUGH NONE WAS
AVAILABLE IN THE CHATHAM AREA.
16. IN REPLY THERETO, YATES WROTE A MEMO DATED NOVEMBER 30, 1973
SAYING THAT THE TRANSFER OF FUNCTIONS MUST BE MAINTAINED, THAT
CONSIDERATION MUST BE GIVEN TO THE EFFECT ON BROWN'S OPTIONS TO EXERCISE
DISCONTINUED SERVICE, AND ASSERTING IT WOULD NOT BE PRACTICAL TO ABOLISH
THE POSITION ITSELF.
17. A MEMO DATED NOVEMBER 30, 1973 WAS WRITTEN FROM YATES TO BROWN
STATING THAT THE REGIONAL FORESTER RECOGNIZED THE DIFFICULTY IN MOVING
TO SITKA AND THE EXISTENT HOUSING SHORTAGE. YATES REITERATED THAT THE
PROGRAM NECESSITATED THE TRANSFER, BUT ADVISED BROWN /4/ THAT THE
EFFECTIVE DATE OF THE CHANGE IN DUTY STATION WOULD BE FEBRUARY 3, 1974.
18. BROWN WROTE YATES ON JANUARY 30, 1974 THAT SINCE HE WAS UNABLE
TO LOCATE HOUSING IN SITKA HE WOULD BE UNABLE TO REPORT BY FEBRUARY 3,
AND COMPLAINANT REQUESTED HE BE RETURNED TO REGION 2 IF THE EMPLOYER
COULD NOT KEEP HIM IN JUNEAU.
19. ROBERT STANAWAY, PERSONNEL OFFICER, WROTE BROWN A MEMO DATED
JANUARY 31, 1974 THAT AN EMPLOYEE IN THE ALASKA REGION WAS PERMITTED TO
EXERCISE RETURN RIGHTS IF HIS REQUESTS WERE SUBMITTED BY JANUARY 1,
1973. FURTHER, THAT THIS RETURN RIGHT PROVISION WAS NO LONGER IN EFFECT
AND THERE WAS NO WAY TO NEGOTIATE A REASSIGNMENT.
20. COMPLAINANT DID NOT REPORT TO SITKA BUT REPORTED TO JUNEAU, ON
FEBRUARY 4, 1974. RESPONDENT PLACED HIM ON AWOL STATUS ON THAT DATE.
21. STANAWAY SENT BROWN A MEMO ON FEBRUARY 12, 1974 NOTIFYING HIM
THAT THE EMPLOYER PROPOSED TO SEPARATE THE EMPLOYEE FROM FOREST SERVICE
EMPLOYMENT NO EARLIER THAN 30 DAYS AFTER RECEIPT OF SAID NOTICE.
FURTHER, BROWN WAS ADVISED THAT WHILE HE WAS ON AWOL STATUS AS OF
FEBRUARY 4, HE WAS BEING RETAINED ON THE ROLLS AS AN EMPLOYEE.
22. AS A RESULT OF A DECISION MADE BY STANAWAY ON MARCH 4, 1974,
COMPLAINANT WAS REMOVED FROM HIS POSITION AS A CAREER FOREST SERVICE
EMPLOYEE EFFECTIVE MARCH 18, 1974.
23. RECORD FACTS SHOW THAT IN 1973 THERE WERE FOUR RESIDENCES
MAINTAINED BY RESPONDENT IN SITKA. THREE WERE OCCUPIED BY EMPLOYEES WHO
HAD BEEN LOCATED THEREAT, WHILE THE OTHER DWELLING WAS A RANGER HOUSE
SET UP AS TEMPORARY SHELTER FOR THOSE MOVING INTO THE AREA. THERE WAS
ALSO A TRAILER FOR TEMPORARY SUMMER CREW. THE RANGER HOUSE WAS OFFERED
TO SCHAUWECKER SINCE HE HAD FOUR SMALL CHILDREN, ALTHOUGH THIS EMPLOYEE
WAS AT TRAINING SCHOOL AND DID NOT REPORT UNTIL A FEW WEEKS LATER.
KNODE, WHO WAS SEPARATED FROM HIS WIFE, TOOK TWO DAYS ANNUAL LEAVE IN
ORDER TO ARRANGE FOR MOVING HIS PERSONAL EFFECTS AND HAD A TEMPORARY
ASSIGNMENT IN JUNEAU. HE DID NOT REPORT ON FEBRUARY 4, BUT DID MOVE
INTO THE BUNKHOUSE UPON ARRIVING AT SITKA. WILLIAMS WAS GRANTED AN
EXTENSION TO HANDLE HIS PERSONAL PROBLEMS AND HE HAD DIFFICULTY SELLING
HIS HOUSE. HE MOVED INTO THE CREWHOUSE AT SITKA IN AUGUST 1974.
ULTIMATELY, ALL EMPLOYEES WHO MOVED TO SITKA FOUND HOUSING
ACCOMMODATIONS.
24. THE RECORD REFLECTS THAT RESPONDENT REMOVED TWO EMPLOYEES, WHO
WERE ADMINISTRATIVE ASSISTANTS, FROM THEIR EMPLOYMENT FOR FAILURE TO
ACCEPT A REASSIGNMENT. DUANE SINCLAIR WAS REMOVED ON AUGUST 14, 1973
FOR FAILURE TO REPORT TO SITKA AS REASSIGNED, AND JOHN W. SHAY WAS
REMOVED ON OCTOBER 27, 1973 FOR THE SAME REASON.
25. THE FEDERAL PERSONNEL MANUAL, PART 752(B), PROVIDES, IN RESPECT
TO REMOVALS AND SUSPENSIONS OF ANY EMPLOYEE, THAT HE BE KEPT ON ACTIVE
DUTY IN HIS REGULAR POSITION DURING THE NOTICE PERIOD, IF AT ALL
PRACTICAL. THE FOREST SERVICE MANUAL, AMENDMENT 89, PROVIDES THAT
EMPLOYEES WHO ARE ABSENT FROM DUTY WITHOUT AUTHORIZATION PLACE
THEMSELVES IN A NONPAY STATUS. STANAWAY TESTIFIED, AND I FIND, THAT
RESPONDENT DECIDED THAT THE PROVISIONS PLACING AND AWOL EMPLOYEE ON A
NON PAY STATUS OVERRODE THE FPM SECTION WHICH PROVIDED THAT AN EMPLOYEE,
WHOM IT IS PURPOSED TO REMOVE, BE KEPT ON ACTIVE DUTY; AND THAT,
ACCORDINGLY, BROWN WAS NOT RETAINED ON PAY STATUS AFTER FEBRUARY 4,
1974.
26. PURSUANT TO THE FEDERAL PERSONNEL MANUAL, 771, SUB-CHAPTER 2,
BROWN FILED ON MARCH 28, 1974 AN ADVERSE ACTION APPEAL FROM THE DECISION
BY RESPONDENT TO REMOVE HIM FROM HIS FOREST SERVICE EMPLOYMENT. A
HEARING WAS HELD ON AUGUST 7, 8, AND 9, 1974, BEFORE AN ADMINISTRATIVE
LAW JUDGE OF THE DEPARTMENT OF AGRICULTURE. AT THE HEARING BROWN
ALLEGED RACIAL DISCRIMINATION, IMPROPER DETERMINATION BY RESPONDENT RE
THE REASSIGNMENT, AND THAT HE WAS DISCRIMINATED AGAINST FOR EXERCISING
RESPONSIBILITIES AS AN OFFICIAL OF NFFE. THE JUDGE ISSUED A DECISION ON
FEBRUARY 28, 1975 RECOMMENDING THAT THE REMOVAL OF BROWN BE SUSTAINED.
THIS WAS AFFIRMED BY THE DEPARTMENT OF AGRICULTURE ON MARCH 13, 1975.
/5/
COMPLAINANT INSISTS THAT RESPONDENT WAS UNDER AN OBLIGATION TO
CONSULT AND CONFER WITH LOCAL 251 REGARDING THE (A) IMPACT UPON
EMPLOYEES OF THE REASSIGNMENTS TO SITKA FROM JUNEAU, (B) IMPLEMENTATION
PERIOD FOR THE MOVE (C) EXTENSIONS GRANTED EMPLOYEES TO REPORT TO THE
NEW LOCATION. FURTHER, HE CONTENDS THE UNION WAS NOT SUPPLIED
INFORMATION RE THE MOVE AS REQUIRED UNDER THE AGREEMENT-- ALL IN
VIOLATION OF THE DUTY TO BARGAIN AS REQUIRED UNDER THE ORDER.
AS I VIEW THE ORDER, WHICH WAS PATTERNED AFTER THE NATIONAL LABOR
RELATIONS ACT, THE OBLIGATION TO CONFER AND CONSULT IS OWED BY AN
EMPLOYER TO A LABOR ORGANIZATION WHICH IS THE COLLECTIVE BARGAINING
REPRESENTATIVE OF ITS EMPLOYEES. SECTION 11 OF THE ORDER SPELLS OUT
THIS DUTY TO BARGAIN, AND IT CLEARLY ENVISAGES THE RECIPROCAL PART
PLAYED BY BOTH THE EMPLOYER AND THE UNION. AS SUCH, I CONSIDER THE
OBLIGATION ON THE PART OF MANAGEMENT TO RUN TO THE LABOR ORGANIZATION
AND NOT TO AN INDIVIDUAL. TO PERMIT INDIVIDUALS, AS DISTINGUISHED FROM
THE BARGAINING REPRESENTATIVE, TO CHALLENGE AN EMPLOYER'S REFUSAL TO
CONSULT OR BARGAIN WOULD UNDERCUT THE UNION AND DEROGATE FROM ITS
AUTHORITY AS SUCH A REPRESENTATIVE. RIGHTS OF REPRESENTATION WOULD BE
RENDERED MEANINGLESS IF EMPLOYEES COULD DECIDE, ON THEIR OWN, WHETHER
THE PARTIES WERE BARGAINING PROPERLY UNDER THE ORDER AND COMPEL
ADHERENCE TO THEIR OWN DETERMINATIONS.
IN THE CASE AT BAR THE COMPLAINANT, AS AN INDIVIDUAL, HAS CHARGED
RESPONDENT WITH A FAILURE TO CONSULT OR CONFER WITH LOCAL 251, NFFE IN
VIOLATION OF 19(A)(6). THE UNION MADE NO APPEARANCE AS A PARTY HEREIN
AND IT INDICATED THAT IT TOOK NO POSITION WITH RESPECT TO THE
ALLEGATIONS IN THE COMPLAINT. MOREOVER, LOCAL 251 MADE NO OBJECTIONS TO
REASSIGNMENTS, REQUESTED NO INFORMATION AS THE COLLECTIVE BARGAINING
REPRESENTATIVE, AND DID NOT SEEK TO BARGAIN CONCERNING THE IMPACT OR
EFFECT OF MOVING THE HEADQUARTERS FROM JUNEAU TO SITKA. IN THIS
POSTURE, I CONCLUDE THAT COMPLAINANT BROWN MAY NOT CHALLENGE THE
FULFILLMENT BY RESPONDENT OF ITS OBLIGATION TO BARGAIN. THE RIGHT TO DO
SO FLOWS EXCLUSIVELY TO LOCAL 251 AND IT ALONE CAN OBTAIN RELIEF FOR A
DERELICTION OF THIS OBLIGATION TO BARGAIN. ACCORDINGLY, I WOULD NOT
FIND A VIOLATION OF 19(A)(6) BASED ON THE COMPLAINT HEREIN.
AN EMPLOYEE IS PROTECTED UNDER THE ORDER IN THE EXERCISE OF HIS RIGHT
TO ENGAGE IN ACTIVITY ON BEHALF OF A LABOR ORGANIZATION. THUS, SECTION
1(A) THEREOF ACCORDS AN EMPLOYEE THE RIGHT TO JOIN OR ASSIST A UNION
WITHOUT FEAR OF PENALTY OR REPRISAL. FURTHER, AS ITS REPRESENTATIVE HE
MAY ACT FOR THE ORGANIZATION IN DEALING WITH MANAGEMENT-- ALL WITHOUT
BEING DISCRIMINATED AGAINST IN ORDER TO DISCOURAGE HIS MEMBERSHIP IN
SUCH ORGANIZATION. HOWEVER, THE PROTECTION AFFORDED AN EMPLOYEE UNDER
THIS SECTION OF THE ORDER EXTENDS TO DISCRIMINATION BASED ON HIS UNION
ACTIVITIES. AN EMPLOYER MAY, WITHOUT RUNNING AFOUL OF THE ORDER, TREAT
AN EMPLOYEE UNFAIRLY OR DISPARATELY VIS A VIS OTHERS PROVIDED THAT ITS
CONDUCT IS NOT AS A RESULT OF THE EMPLOYEE'S ACTION ON BEHALF OF A
PARTICULAR LABOR ORGANIZATION. ACCORDINGLY, TO ESTABLISH A VIOLATION OF
19(A)(2) IT IS NECESSARY TO SHOW, NOT ONLY THAT AN EMPLOYEE WAS
DISCRIMINATED AGAINST BY AN AGENCY, BUT THAT SUCH TREATMENT WAS A RESULT
OF HIS UNIONISM.
COMPLAINANT MAINTAINS THAT HE HAS BEEN SO DISCRIMINATED AGAINST BY
BEING PLACED ON AWOL STATUS AND THEN SEPARATED FROM HIS EMPLOYMENT. HE
CONTENDS THIS WAS ACHIEVED AND EVIDENCED BY (A) PREFERENTIAL HOUSING
BEING OFFERED TO OTHER EMPLOYEES BUT NOT TO HIM; (B) PREFERENTIAL LEAVE
INTERPRETATION MADE IN FAVOR OF OTHER INDIVIDUALS; (C) PREFERENTIAL JOB
OFFERS EXTENDED TO OTHER EMPLOYEES, AND (D) PREFERENTIAL APPLICATION OF
PERSONAL POLICIES.
A CAREFUL READING OF ALL THE EVIDENCE HEREIN CONVINCES ME THAT
RESPONDENT DID NOT DISCRIMINATE AGAINST COMPLAINANT BROWN UNDER THE
ORDER. WHILE HE MAY HAVE DISAGREED WITH THE EMPLOYER'S ACTIONS IN
RESPECT TO THE REASSIGNMENT FROM JUNEAU TO SITKA, BROWN'S REFUSAL TO
EFFECT THE MOVE BY FEBRUARY 3 1974 WAS, IN MY OPINION, THE SOLE AND
PROXIMATE CAUSE FOR THE ACTIONS TAKEN TOWARD HIM BY MANAGEMENT.
ALTHOUGH BROWN WAS A REPRESENTATIVE OF LOCAL 251, THE RECORD DOES NOT
SUPPORT A CONCLUSION THAT MANAGEMENT DISPLAYED ANY ANIMUS TOWARD HIM
BASED ON HIS ACTIVITIES AS THE UNION REPRESENTATIVE. IT WAS CONCEDED BY
THE COMPLAINANT, AND THE RECORD REFLECTS, THAT NO RESTRAINTS WERE PLACED
ON BROWN'S EFFORTS TO REPRESENT EMPLOYEES IN GRIEVANCE MATTERS.
FURTHER, HE WAS PERMITTED TO ACT AS A UNION REPRESENTATIVE FREELY AND
THERE IS NO SHOWING THAT HE WAS EVER ADMONISHED TO CURTAIL OR RESTRICT
SUCH ACTIVITIES.
COMPLAINANT'S REFERENCE TO THE ALLEGED PREFERENTIAL TREATMENT TOWARD
OTHERS DOES NOT SERVE TO ESTABLISH DISCRIMINATORY CONDUCT TOWARD HIM
UNDER THE ORDER. OF THE FOUR EMPLOYEES WHO WERE TO REPORT BY FEBRUARY
3, BROWN WAS THE ONLY INDIVIDUAL WHO REFUSED TO, AND DID NOT, MOVE TO
SITKA. WHILE IT IS TRUE THAT THE OTHERS DID NOT ACTUALLY COMMENCE WORK
AT THE NEW LOCATION ON THE DESIGNATED DATE, THERE WERE EXTENUATING
REASONS IN EACH INSTANCE, I.E. TAKING OF ANNUAL LEAVE, BEING AT A
TRAINING SESSION, AND FINISHING UP OF INCOMPLETE WORK. HAD BROWN
COMMENCED HIS MOVE TO SITKA IT MAY WELL BE THAT A SIMILIAR REQUEST BY
HIM FOR ANNUAL LEAVE TO PERFECT THE MOVE WOULD HAVE BEEN GRANTED. IN
ANY EVENT, HE WAS GRANTED TWO EXTENSIONS ALONG WITH OTHERS TO MOVE TO
SITKA, AND THUS WAS ALLOWED FIVE ADDITIONAL MONTHS IN WHICH TO RELOCATE
TO SITKA. HIS REQUEST FOR A FURTHER EXTENSION OF TIME TO MOVE UNTIL
JUNE 30 WAS FAR BEYOND TIME ACCORDED THE OTHER THREE MEN (SCHAUWECKER,
KNODE, WILLIAMS). NEITHER DO I AGREE THAT HOUSING ARRANGEMENT MADE FOR
THESE THREE EMPLOYEES REFLECT DISPARATE TREATMENT AS REGARDS BROWN OR
ARE SUPPORTIVE OF DISCRIMINATION. SINCE SCHAUWECKER HAD FOUR CHILDREN
IT WAS UNDERSTANDABLE THAT HE BE FURNISHED THE GOVERNMENT HOUSE, AND IT
DOES NOT APPEAR THAT MANAGEMENT WOULD HAVE DENIED BROWN THE CREWHOUSE
ACCOMMODATIONS. MOREOVER, WHILE HOUSING FACILITIES WERE OBVIOUSLY
DIFFICULT TO OBTAIN, ALL THOSE REASSIGNED FROM JUNEAU TO SITKA DID, IN
FACT, MOVE AND FIND QUARTERS.
COMPLAINANT DOES NOT ATTACH MUCH RELEVANCY TO THE FACT THAT
RESPONDENT PLACED TWO EMPLOYEES (SINCLAIR AND SHAY) ON AWOL AND THEN
SEPARATED THEM FOR FAILING TO REPORT ON REASSIGNMENT. HE CONSIDERS
THEIR CASES DISSIMILAR SINCE THEY WERE NOT INVOLVED IN A "TRANSFER OF
FUNCTIONS", THEIR POSITIONS WERE TO BE ABOLISHED, AND HOUSING WAS NOT A
FACTOR. NEVERTHELESS, RESPONDENT TREATED TWO EMPLOYEES WHO WERE NOT
UNION AGENTS, OR ACTIVE ON BEHALF OF LOCAL 251, IN THE SAME MANNER AS IT
HANDLED COMPLAINANT WHEN THEY REFUSED TO REPORT TO THEIR NEW DUTY
STATIONS, AND, TO THAT EXTENT, I FIND THAT THE ACTION TAKEN TOWARD
SINCLAIR AND SHAY IS RELEVANT HEREIN.
COMPLAINANT ATTACHES SIGNIFICANCE TO THE FAILURE BY RESPONDENT TO
ACCEPT OLSON'S RECOMMENDATION THAT BROWN'S JOB BE ABOLISHED AS WELL AS
HIS SUGGESTION THAT THE EMPLOYEE MIGHT NOT BE NEEDED IN SITKA. FURTHER,
IT IS AVERRED THAT MANAGEMENT INTENDED TO GET RID OF BROWN AND THEN
ABOLISH THE JOB; THAT IT COULD NOT ACCOMPLISH THE LATTER AND THEREFORE
IT FILLED THE POSITION. NOTHING IN THE RECORD SUPPORTS THIS CONCLUSION
OR SHOWS THAT RESPONDENT WAS BENT UPON GETTING RID OF BROWN. HAD THE
EMPLOYER TAKEN STEPS TO TERMINATE BROWN APART FROM THE ORDERLY
REORGANIZATION WHICH INVOLVED REASSIGNMENT, THIS ARGUMENT MIGHT BEAR
MORE CONSIDERATION. UNDER THE CIRCUMSTANCES HEREIN I DO NOT FIND IT
PERSUASIVE. MOREOVER, I REJECT THE ARGUMENT THAT THE FAILURE BY
STANAWAY TO FOLLOW THE PERSONNEL MANUAL REGULATIONS, IN REGARD TO
NOTIFICATION TO EMPLOYEES RE THE MOVE, REFLECTS A DISCRIMINATORY MOTIVE
ON THE PART OF RESPONDENT. SUCH A FAILURE MAY CONSTITUTE A BREACH ON
THE PART OF MANAGEMENT, BUT UNLESS, IN THE INSTANCE OF BROWN, IT WAS
COMMITTED TO EFFECT HIS SEPARATION BECAUSE OF HIS UNION ACTIVITIES, IT
DOES NOT TEND TO PROVE DISCRIMINATION UNDER THE ORDER.
ACCORDINGLY, IN VIEW OF THE FOREGOING AND BASED ON THE RECORD HEREIN,
I CONCLUDE THAT COMPLAINANT BROWN WAS PLACED ON AWOL, AND THEN SUSPENDED
FROM EMPLOYMENT, FOR HIS REFUSAL FAILURE TO REPORT ON FEBRUARY 3, 1974
TO SITKA FROM JUNEAU, IN ACCORDANCE WITH HIS REASSIGNMENT. FURTHER, I
CONCLUDE THAT BROWN'S ACTIVITY AS A REPRESENTATIVE OF LOCAL 251 WAS NOT
A FACTOR INVOLVED IN THE ACTION TAKEN BY MANAGEMENT TOWARD HIM.
ACCORDING, I FIND RESPONDENT HAS NOT VIOLATED SECTION 19(A)(2) OF THE
ORDER.
COMPLAINANT, IN HIS INSISTENCE THAT RESPONDENT ENGAGED IN ACTS OF
INTERFERENCE, ADVERTS TO SEVERAL INSTANCES WHERE EMPLOYEES FELT /7/
THREATENED OR IN "APPREHENSION" AS A RESULT OF STATEMENTS MADE BY
RESPONDENT. APART FROM THE FACT THAT SUCH EVIDENCE IS HERESAY IN
NATURE, THE EMPLOYEE'S ALLEGED FEAR OF REPRISAL WAS BASED ON HIS
INTERPRETATION OF THE MANNER IN WHICH MANAGEMENT TREATED COMPLAINANT.
AN EVALUATION OF WHETHER A STATEMENT IS COERCIVE IN NATURE CANNOT REST
UPON A SUBJECTIVE DETERMINATION, BUT MUST STAND OR FALL ON AN ANALYSIS
OF THE STATEMENT ITSELF AND WHERE IT WOULD TEND TO INTERFERE WITH THE
RIGHTS OF EMPLOYEES UNDER THE ORDER.
UPON REVIEWING THE RECORD I FIND NO STATEMENTS MADE BY MANAGEMENT
WHICH CAN BE DEEMED COERCIVE IN NATURE. THE INQUIRY BY RESPONDENT OF
LOCAL 251 AS TO ITS REACTION TO THE CHARGE DOES NOT, IN MY OPINION,
CONSTITUTE INTERFERENCE AND IS SCARCELY THREATENING BY ITSELF. FURTHER,
THE COMMENTS BY YATES TO SENATOR GRAVEL-- APART FROM NOT BEING MADE TO
EMPLOYEES OR LIKELY TO COME TO THEIR ATTENTION-- DO NOT REFLECT AN
INTENTION TO DISPARAGE THE BARGAINING REPRESENTATIVE. NEITHER THESE
COMMENTS, NOR THE REMARK ALLEGEDLY MADE BY STANAWAY IN 1971 /8/ THAT THE
UNION ACTED IN BAD FAITH, WERE OF A COERCIVE CHARACTER BUT EXPRESSIONS
OF OPINION WHICH I DO CONSIDER TO CONSTITUTE INTERFERENCE OR A VIOLATION
OF 19(A)(1) UNDER THE ORDER.
UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS, THE
UNDERSIGNED RECOMMENDS THAT THE COMPLAINT HEREIN AGAINST U.S. DEPARTMENT
OF AGRICULTURE, FOREST SERVICE, REGIONAL OFFICE, JUNEAU, ALASKA, BE
DISMISSED.
DATED: JULY 29, 1975
WASHINGTON, D.C.
/1/ JUDGE KENNEDY DIED SUBSEQUENT TO THE CLOSE OF THE HEARING HEREIN.
THEREAFTER THE UNDERSIGNED WAS DULY DESIGNATED AND ASSIGNED TO PREPARE
A REPORT AND RECOMMENDATION BASED ON THE ENTIRE RECORD IN THIS MATTER.
/2/ THIS DECISION WAS CONTRARY TO A TASK FORCE'S EARLIER
RECOMMENDATION THAT THE HEADQUARTERS BE RETAINED IN JUNEAU.
/3/ A TOTAL OF 13 EMPLOYEES WERE TO BE REASSIGNED FROM JUNEAU TO
SITKA. BY JUNE 1, 1973 SEVERAL INDIVIDUALS HAD ALREADY MOVED TO THE NEW
LOCATION.
/4/ OTHER FORESTERS AT JUNEAU WHO WERE GRANTED AN EXTENSION UNTIL
FEBRUARY 3, 1974 TO REPORT TO SITKA WERE JAMES E. KNODE, GERALD L.
SCHAUWECKER, AND THOMAS L. WILLIAMS.
/5/ THE APPEAL PROCEDURE PURSUED BY BROWN WAS NOT MADE A PART OF THE
RECORD HEREIN. FACTS WITH RESPECT THERETO ARE CONTAINED IN THE DECISION
OF THE ADMINISTRATIVE LAW JUDGE RENDERED AFTER THE HEARING BEFORE HIM
AND SUBMITTED BY RESPONDENT. JUDICIAL NOTICE HAS BEEN TAKEN BY THE
UNDERSIGNED OF THE APPEAL PROCEEDINGS AND THE DECISION SO RENDERED.
/6/ ALTHOUGH RESPONDENT REFERS, IN ITS BRIEF, TO THE FACT THAT BROWN
APPEALED HIS TERMINATION UNDER THE STATUTORY APPEALS SYSTEM, IT HAS NOT
RAISE SECTION 19(D) OF THE ORDER AS A DEFENSE TO THIS PROCEEDING.
WHETHER AN APPEAL PURSUANT TO FPM 771(2) BEFORE THE AGENCY WARRANTS
DISMISSAL UNDER 19(D) WAS NOT RAISED IN RESPONDENT'S RESPONSE NOR AT THE
HEARING. IN VIEW THEREOF, AND SINCE IT WAS NOT LITIGATED BEFORE JUDGE
KENNEDY, I DO NOT PASS UPON THAT ISSUE.
/7/ STATEMENT BY EMPLOYEES OF THEIR REACTIONS TO RESPONDENT'S REMARKS
WERE REJECTED BY JUDGE KENNEDY AT THE HEARING.
/8/ THIS OCCURRED MORE THAN SIX MONTHS BEFORE THE CHARGE WAS FILED
AND WOULD BE BARRED FROM CONSIDERATION UNDER 203.2(A)(2) OF THE RULES
AND REGULATIONS.
5 A/SLMR 594; P. 743; CASE NO. 72-5321; DECEMBER 10, 1975.
DEPARTMENT OF THE NAVY
SUPERVISOR OF SHIPBUILDING,
CONVERSION AND REPAIR, USN,
LONG BEACH, CALIFORNIA
A/SLMR NO. 594
THIS CASE INVOLVED A PETITION FOR CLARIFICATION OF UNIT FILED BY THE
INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, LOCAL
174, CHAPTER 1, AFL-CIO-CLC (PETITIONER), SEEKING TO CLARIFY THE
SUPERVISORY STATUS OF THE GS-12 PRODUCTION CONTROLLER JOB
CLASSIFICATION. THE PETITIONER MAINTAINED THAT THESE POSITIONS WERE
PART OF THE BARGAINING UNIT IN THAT INCUMBENT EMPLOYEES INFREQUENTLY
PERFORMED SUPERVISORY DUTIES IN DIRECTING ONE EMPLOYEE. THE ACTIVITY
CONTENDED THAT THE INDEPENDENT JUDGMENT, AUTHORITY AND RESPONSIBILITY OF
THE GS-12 PRODUCTION CONTROLLERS IN DIRECTING THEIR SUBORDINATES
DEMONSTRATED THAT THE POSITIONS ARE SUPERVISORY WITHIN THE MEANING OF
THE ORDER AND SHOULD BE EXCLUDED FROM THE UNIT.
THE ASSISTANT SECRETARY FOUND THAT THE GS-12 PRODUCTION CONTROLLER,
WERE, IN FACT, SUPERVISORS WITHIN THE MEANING OF THE ORDER AND SHOULD BE
EXCLUDED FROM THE UNIT. IN THIS REGARD, HE NOTED THAT EMPLOYEES IN THIS
CLASSIFICATION POSSESSED EFFECTIVE AUTHORITY TO, AMONG OTHER THINGS,
ASSIGN WORK, ADJUST GRIEVANCES AND COMPLAINTS, INITIATE DISCIPLINARY
ACTIONS, AND EFFECTIVELY RECOMMEND HIRING, AWARDS, AND THE SCHEDULING OF
OVERTIME AND ANNUAL LEAVE.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE UNIT BE
CLARIFIED CONSISTENT WITH HIS DECISION.
DEPARTMENT OF THE NAVY,
SUPERVISOR OF SHIPBUILDING,
CONVERSION AND REPAIR, USN,
LONG BEACH, CALIFORNIA
AND
INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL
ENGINEERS, LOCAL 174,
CHAPTER 1, AFL-CIO-CLC
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER RODGER E. MONREAL.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILED BY THE
ACTIVITY AND THE PETITIONER, THE ASSISTANT SECRETARY FINDS:
THE PETITIONER FILED A PETITION FOR CLARIFICATION OF AN EXCLUSIVELY
RECOGNIZED EXISTING UNIT OF ALL GRADED EMPLOYEES OF THE ACTIVITY,
EXCLUDING MANAGEMENT OFFICIALS, SUPERVISORS, GUARDS AND EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY. /1/ SPECIFICALLY, THE PETITIONER SEEKS TO CLARIFY THE
SUPERVISORY STATUS OF EMPLOYEES IN THE GS-12 PRODUCTION CONTROLLER JOB
CLASSIFICATION. IN THIS REGARD, IT ASSERTS THAT THE INCUMBENTS IN THIS
CLASSIFICATION ARE NOT SUPERVISORY EMPLOYEES WITHIN THE MEANING OF THE
ORDER IN THAT THEY INFREQUENTLY UTILIZED SUPERVISORY AUTHORITY IN
DIRECTING A SINGLE EMPLOYEE AND, THEREFORE, SHOULD BE INCLUDED IN THE
UNIT. THE ACTIVITY, ON THE OTHER HAND, TAKES THE POSITION THAT THE
AUTHORIZED DUTIES AND RESPONSIBILITIES OF THE INCUMBENTS INDICATE THAT
THEY ARE SUPERVISORS WITHIN THE MEANING OF THE ORDER AND, THUS, SHOULD
BE EXCLUDED FROM THE UNIT.
THE RECORD REFLECTS THAT THE ACTIVITY IS ENGAGED IN THE
ADMINISTRATION OF CONTRACTS WITH PRIVATE CONTRACTORS FOR THE BUILDING,
CONVERSION AND REPAIR OF NAVY SHIPS. IT IS ORGANIZED INTO FIVE
DEPARTMENTS: ADMINISTRATIVE, CONTRACTS, MATERIAL, QUALITY ASSURANCE AND
PLANNING. THE PLANNING DEPARTMENT IS FURTHER SUBDIVIDED INTO FOUR
DIVISIONS-- ADVANCE PLANNING, PLANNING AND ESTIMATING, DESIGN
COORDINATION AND PLANNING COORDINATION-- AND IS HEADED BY THE PLANNING
OFFICER AND HIS DEPUTY, THE PLANNING SUPERINTENDENT. EACH DIVISION HAS
A GS-12 DIVISION HEAD EXCEPT THE PLANNING AND COORDINATION DIVISION
WHICH HAS THREE GS-12 PLANNING COORDINATION BRANCH HEADS. THESE LATTER
POSITIONS ARE THE PRODUCTION CONTROLLER JOB CLASSIFICATIONS IN QUESTION
IN THIS MATTER. THE PLANNING SUPERINTENDENT IS THE IMMEDIATE SUPERVISOR
OF THE THREE DIVISION HEADS AS WELL AS THE THREE DISPUTED GS-12
PRODUCTION CONTROLLERS. EACH GS-12 PRODUCTION CONTROLLER HAS UNDER HIS
AUTHORITY AN ASSISTANT GS-11 PRODUCTION CONTROLLER. IN THIS REGARD, THE
RECORD INDICATES THAT DUE TO AN INCREASED WORK LOAD IT IS PLANNED THAT
ANOTHER GS-11 PRODUCTION CONTROLLER ASSISTANT WILL BE ASSIGNED TO EACH
GS-12 PRODUCTION CONTROLLER.
THE EVIDENCE ESTABLISHED THAT THE GS-12 PRODUCTION CONTROLLERS ARE
RESPONSIBLE FOR DEVELOPING, COORDINATING AND CONTROLLING THE PLANNING,
SCHEDULING, ESTIMATING AND FUNDING PROCESSES NECESSARY TO REPAIR AND/OR
OVERHAUL THE SHIPS ASSIGNED BY THE SUPERINTENDENT. THE RECORD REVEALED
THAT GS-12 PRODUCTION CONTROLLERS USE INDEPENDENT JUDGMENT IN ASSIGNING
AND PERIODICALLY REVIEWING THE WORK OF THEIR GS-11 SUBORDINATES.
MOREOVER, THEY HAVE THE AUTHORITY TO RECOMMEND EFFECTIVELY THE
SCHEDULING OF ANNUAL LEAVE AND TO DETERMINE AND RECOMMEND OVERTIME FOR
THEIR GS-11 SUBORDINATES. THEY ALSO HAVE THE AUTHORITY TO INITIATE
DISCIPLINARY ACTION AND ADJUST GRIEVANCES AND COMPLAINTS, ALTHOUGH THE
RECORD SHOWED THAT NO SUCH AUTHORITY HAD EVER BEEN EXERCISED. THE
RECORD ALSO REVEALED THAT THEY PREPARE PERFORMANCE APPRAISALS FOR ANNUAL
PERFORMANCE RATINGS, WITHIN GRADE INCREASES AND MERIT PROMOTIONS.
FURTHER, THE EVIDENCE ESTABLISHED THAT THEY HAVE THE AUTHORITY TO
RECOMMEND EFFECTIVELY GS-11 ASSISTANT PRODUCTION CONTROLLER APPLICANTS
FOR HIRE, AND TO RECOMMEND THEIR SUBORDINATES FOR AWARDS.
BASED ON THE FOREGOING CIRCUMSTANCES, I FIND THE EMPLOYEES IN THE
CLASSIFICATION GS-12 PRODUCTION CONTROLLER POSSESS SUPERVISORY AUTHORITY
TO SET FORTH IN SECTION 2(C) OF THE ORDER. /2/ THUS, THE EMPLOYEES IN
THIS JOB CLASSIFICATION ARE RESPONSIBLE FOR THE QUALITY AND QUANTITY OF
THE TOTAL BRANCH OUTPUT. THEY POSSESS THE EFFECTIVE AUTHORITY TO ASSIGN
WORK, ADJUST GRIEVANCES AND COMPLAINTS, INITIATE DISCIPLINARY ACTIONS
AND EFFECTIVELY RECOMMEND HIRING, AWARDS, AND THE SCHEDULING OF OVERTIME
AND ANNUAL LEAVE. FURTHER, THEY ARE REQUIRED TO EXERCISE INDEPENDENT
JUDGMENT IN PERFORMING THESE FUNCTIONS. /3/ MOREOVER, CONTRARY TO THE
APPARENT CONTENTION OF THE PETITIONER, THE NUMBER OF SUBORDINATES OVER
WHOM THIS AUTHORITY IS EXERCISED IS NOT DISPOSITIVE WITH RESPECT TO A
DETERMINATION OF SUPERVISORY STATUS. /4/ ACCORDINGLY, AND NOTING THE
ABSENCE OF EVIDENCE THAT THE SUPERVISORY AUTHORITY EXERCISED IS MERELY
SPORADIC OR INFREQUENT, I FIND THE EMPLOYEES IN THE DISPUTED
CLASSIFICATION ARE SUPERVISORS WITHIN THE MEANING OF THE ORDER AND,
THEREFORE, SHOULD BE EXCLUDED FROM THE UNIT.
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN BE,
AND IT HEREBY IS, CLARIFIED BY EXCLUDING FROM SAID UNIT EMPLOYEES
ASSIGNED TO THE POSITIONS CLASSIFIED AS GS-12 PRODUCTION CONTROLLERS.
DATED, WASHINGTON, D.C.
DECEMBER 10, 1975
/1/ THE PETITIONER WAS CERTIFIED AS THE EXCLUSIVE BARGAINING
REPRESENTATIVE FOR THIS UNIT ON AUGUST 21, 1970. ON JUNE 25, 1975, THE
ACTIVITY AND PETITIONER ENTERED INTO A NEGOTIATED AGREEMENT COVERING
EMPLOYEES IN THE UNIT.
/2/ SECTION 2(C) OF THE EXECUTIVE ORDER READS AS FOLLOWS:
"SUPERVISOR" MEANS AN EMPLOYEE HAVING AUTHORITY, IN THE INTEREST OF
AN AGENCY, TO HIRE,
TRANSFER, SUSPEND, LAY-OFF, RECALL, PROMOTE, DISCHARGE, ASSIGN,
REWARD, OR DISCIPLINE OTHER
EMPLOYEES, OR RESPONSIBILITY TO DIRECT THEM OR TO ADJUST THEIR
GRIEVANCES, OR EFFECTIVE TO
RECOMMEND SUCH ACTION, IF IN CONNECTION WITH THE FOREGOING THE
EXERCISE OF AUTHORITY IS NOT OF
A MERELY ROUTINE OR CLERICAL NATURE, BUT REQUIRES THE USE OF
INDEPENDENT JUDGMENT.
/3/ CF. DEPARTMENT OF THE NAVY, UNITED STATES NAVAL WEAPONS CENTER,
CHINA LAKE, CALIFORNIA, A/SLMR NO. 128, FLRC NO. 72A-11 DEPARTMENT OF
THE NAVY, MARE ISLAND NAVAL SHIPYARD, VALLEJO, CALIFORNIA, A/SLMR NO.
129, FLRC NO. 72A-12.
/4/ SEE UNITED STATES DEPARTMENT OF AGRICULTURE, NORTHERN MARKETING
AND NUTRITION RESEARCH DIVISION, PEORIA, ILLINOIS, A/SLMR NO. 120, FLRC
NO. 72A-4.
5 A/SLMR 593; P. 741; CASE NOS. 72-5294(RO), 72-5183(CU); DECEMBER
10, 1975.
ARIZONA AIR NATIONAL GUARD,
PHOENIX, ARIZONA
A/SLMR NO. 593
THE SUBJECT CASE INVOLVED AN RO PETITION FILED BY THE ASSOCIATION OF
CIVILIAN TECHNICIANS, INC., (ACT) SEEKING AN ELECTION IN A UNIT
INCLUDING ALL AIR NATIONAL GUARD TECHNICIANS EMPLOYED BY THE 107TH
TACTICAL CONTROL SQUADRON (TCS) AT THE PAPAGO MILITARY RESERVATION,
ARIZONA AIR NATIONAL GUARD, PHOENIX, ARIZONA. THE ACT ASSERTED THAT THE
RELOCATION OF THE AIR NATIONAL GUARD TECHNICIANS OF THE 107TH TCS FROM
SKY HARBOR AIRPORT, PHOENIX, ARIZONA, TO THE PAPAGO MILITARY RESERVATION
REMOVED SUCH EMPLOYEES FROM AN EXISTING UNIT REPRESENTED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3046 (AFGE). IT ALSO
ASSERTED THAT THE AIR NATIONAL GUARD TECHNICIANS OF THE 107TH TCS HAVE A
CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE FROM THE AIR
NATIONAL GUARD TECHNICIANS AT THE SKY HARBOR AIRPORT AND THAT A SEPARATE
UNIT AT THE PAPAGO MILITARY RESERVATION WOULD PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS. ALSO INVOLVED IN THIS MATTER WAS A
PETITION FOR CLARIFICATION OF UNIT (CU) FILED BY THE AFGE SEEKING TO
CLARIFY ITS EXISTING UNIT AT SKY HARBOR AIRPORT BY CHANGING THE
DESCRIPTION OF THE EXISTING UNIT FROM ALL AIR NATIONAL GUARD TECHNICIANS
EMPLOYED AT SKY HARBOR AIRPORT TO ALL AIR NATIONAL GUARD TECHNICIANS
EMPLOYED BY THE ARIZONA AIR NATIONAL GUARD, PHOENIX, ARIZONA, IN ORDER
TO HAVE IT CONFORM TO THE RELOCATION OF AIR NATIONAL GUARD TECHNICIANS
TO THE PAPAGO MILITARY RESERVATION.
THE ASSISTANT SECRETARY FOUND THAT THE EMPLOYEES OF THE 107TH TCS,
AFTER THEIR RELOCATION TO THE PAPAGO MILITARY RESERVATION, CONTINUED TO
SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST WITH THOSE AIR
NATIONAL GUARD TECHNICIANS AT SKY HARBOR AND REMAINED IN THE EXISTING
EXCLUSIVELY RECOGNIZED UNIT REPRESENTED BY THE AFGE. IN THIS
CONNECTION, HE FOUND THAT INASMUCH AS THE EMPLOYEES SOUGHT BY THE ACT
WERE COVERED BY A NEGOTIATED AGREEMENT, THE ACT'S PETITION WAS FILED
UNTIMELY UNDER SECTION 202.3(C) OF THE ASSISTANT SECRETARY'S
REGULATIONS. ACCORDINGLY, HE ORDERED THAT THE PETITION BE DISMISSED.
WITH RESPECT TO THE CU PETITION, THE ASSISTANT SECRETARY, HAVING
FOUND THAT THOSE AIR NATIONAL GUARD TECHNICIANS WHO HAVE BEEN RELOCATED
FROM THE SKY HARBOR AIRPORT TO THE PAPAGO MILITARY RESERVATION HAVE
REMAINED IN THE EXISTING EXCLUSIVELY RECOGNIZED UNIT, ISSUED AN ORDER
CLARIFYING THE UNIT TO INCLUDE, ADDITIONALLY, ALL ARIZONA AIR NATIONAL
GUARD TECHNICIANS EMPLOYED AT THE PAPAGO MILITARY RESERVATION, PHOENIX,
ARIZONA.
ARIZONA AIR NATIONAL GUARD,
PHOENIX, ARIZONA
AND
ASSOCIATION OF CIVILIAN TECHNICIANS, INC.
ARIZONA AIR NATIONAL GUARD
PHOENIX, ARIZONA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3046
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER
ELEANOR HASKELL. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE
FREE FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THESE CASES, INCLUDING A BRIEF SUBMITTED BY
THE ASSOCIATION OF CIVILIAN TECHNICIANS, INC., HEREIN CALLED ACT, THE
ASSISTANT SECRETARY FINDS:
IN CASE NO. 72-5294(RO), THE ACT FILED A PETITION SEEKING AN ELECTION
IN A UNIT INCLUDING ALL AIR NATIONAL GUARD TECHNICIANS EMPLOYED BY THE
107TH TACTICAL CONTROL SQUADRON (TCS) AT THE PAPAGO MILITARY
RESERVATION, ARIZONA AIR NATIONAL GUARD, PHOENIX, ARIZONA. IN THIS
REGARD, THE ACT CONTENDS THAT THE RELOCATION OF THE AIR NATIONAL GUARD
TECHNICIANS OF THE 107TH TCS FROM SKY HARBOR AIRPORT TO THE PAPAGO
MILITARY RESERVATION REMOVED SUCH EMPLOYEES FROM AN EXISTING UNIT AT SKY
HARBOR AIRPORT EXCLUSIVELY REPRESENTED BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3046, HEREIN CALLED AFGE, THAT THE
AIR NATIONAL GUARD TECHNICIANS OF THE 107TH TCS NOW HAVE A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE FROM THE AIR NATIONAL GUARD
TECHNICIANS AT SKY HARBOR AIRPORT, AND THAT A SEPARATE UNIT AT THE
PAPAGO MILITARY RESERVATION WOULD PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS.
IN CASE NO. 72-5183(CU), THE PETITIONER, AFGE, FILED A PETITION FOR
CLARIFICATION OF UNIT SEEKING TO CLARIFY ITS EXISTING UNIT AT SKY HARBOR
AIRPORT BY CHANGING THE DESCRIPTION OF THE EXISTING UNIT FROM ALL AIR
NATIONAL GUARD TECHNICIANS EMPLOYED AT SKY HARBOR AIRPORT, PHOENIX,
ARIZONA, TO ALL AIR NATIONAL GUARD TECHNICIANS EMPLOYED BY THE ARIZONA
AIR NATIONAL GUARD, PHOENIX, ARIZONA. IN THIS CONNECTION, THE AFGE
CONTENDS THAT THE PROPOSED CHANGE IS DESIGNED MERELY TO REFLECT THE
RESULTS OF THE RELOCATION OF AIR NATIONAL GUARD TECHNICIAN EMPLOYEES OF
THE 107TH TCS FROM THE SKY HARBOR AIRPORT, PHOENIX, TO THE PAPAGO
MILITARY RESERVATION, PHOENIX, AND THAT THE EMPLOYEES OF THE 107TH TCS
CONTINUE TO REMAIN IN THE AFGE'S EXISTING UNIT. /1/ THE ACTIVITY TOOK
NO POSITION WITH REGARD TO EITHER PETITION.
THE RECORD REVEALS THAT ON SEPTEMBER 29, 1969, THE ACTIVITY GRANTED
THE AFGE RECOGNITION AS THE EXCLUSIVE REPRESENTATIVE OF ALL ITS AIR
NATIONAL GUARD TECHNICIAN EMPLOYEES LOCATED AT SKY HARBOR AIRPORT,
PHOENIX, ARIZONA. AN INITIAL NEGOTIATED AGREEMENT WAS EXECUTED ON
NOVEMBER 22, 1971, AND, THEREAFTER, THE PARTIES ENTERED INTO A SECOND
AGREEMENT DATED NOVEMBER 4, 1974, WHICH EXPIRES ON NOVEMBER 3, 1976. AT
THE TIME THE AFGE OBTAINED EXCLUSIVE RECOGNITION AT SKY HARBOR, ITS UNIT
CONSISTED OF ALL AIR NATIONAL GUARD TECHNICIAN EMPLOYEES OF THE 161ST
AIR REFUELING GROUP (AREGP), THE ONLY AIR NATIONAL GUARD TECHNICIAN
EMPLOYEES AT SKY HARBOR AT THAT TIME.
ON JUNE 10, 1972, THE 107TH TCS SQUADRON OF AIR NATIONAL GUARD
TECHNICIAN EMPLOYEES WAS ESTABLISHED AT SKY HARBOR AND BECAME A
FUNCTIONAL UNIT WITHIN THE FACILITY. THE BASE DETACHMENT COMMANDER /2/
AT SKY HARBOR WAS RESPONSIBLE FOR LABOR RELATIONS MATTERS AT THE
FACILITY, INCLUDING THE NEWLY ORGANIZED 107TH TCS. IN THIS CONNECTION,
HE ESTABLISHED THE SAME WORKING HOURS FOR THE EMPLOYEES OF THE 107TH TCS
AND THE 161ST AREGP, ASSIGNED THEM THEIR FACILITIES, AND APPROVED THEIR
CIVILIAN COURSES OF INSTRUCTION. THE RECORD ALSO SHOWED THAT THE
TECHNICIAN PERSONNEL OFFICER (TPO) AT SKY HARBOR SERVICED BOTH THE 161ST
AREGP AND 107TH TCS IN REGARD TO MERIT PROMOTION AND REDUCTION-IN-FORCE
ACTIONS, AND THAT THE SKY HARBOR TIME AND ATTENDANCE SECTION PROVIDED
TIME, LEAVE AND PAYROLL SERVICES FOR THE 107TH TCS. IN CONNECTION WITH
THE FOREGOING, THE PARTIES STIPULATED THAT, FOLLOWING ITS ESTABLISHMENT,
THE 107TH TCS BECAME A FUNCTION WITHIN THE BASE AND WAS INCLUDED IN THE
AFGE'S EXCLUSIVELY RECOGNIZED UNIT.
ON NOVEMBER 15, 1974, THE 107TH TCS WAS MOVED INTACT TO THE PAPAGO
MILITARY RESERVATION, PHOENIX. THE RECORD REVEALS THAT THIS PHYSICAL
RELOCATION DID NOT SUBSTANTIALLY AFFECT THE EMPLOYEES' TERMS AND
CONDITIONS OF EMPLOYMENT. THUS, THE 107TH TCS EMPLOYEES CONTINUED TO
PERFORM THE SAME JOB FUNCTIONS THAT THEY PERFORMED PRIOR TO THE MOVE
WITH NO SUBSTANTIAL CHANGE IN THEIR WORKING CONDITIONS, IMMEDIATE
SUPERVISION, JOB CONTACTS OR PERSONNEL POLICIES, INCLUDING
REDUCTIONS-IN-FORCE CONSIDERATIONS.
UNDER THESE CIRCUMSTANCES, I FIND THAT THE EMPLOYEES OF THE 107TH
TCS, AFTER THEIR RELOCATION TO THE PAPAGO MILITARY RESERVATION,
CONTINUED TO SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST WITH
THOSE AIR NATIONAL GUARD TECHNICIANS AT THE SKY HARBOR AIRPORT. /3/
MOREOVER, IT WAS NOTED THAT EFFECTIVE DEALINGS HAVE BEEN EXPERIENCED IN
THE UNIT ENCOMPASSING EMPLOYEES OF BOTH THE 161ST AREGP AND THE 107TH
TCS AS EVIDENCED BY THE NEGOTIATED AGREEMENTS EXECUTED BY THE AFGE AND
THE ACTIVITY AND THAT THE ACTIVITY HAS TAKEN NO POSITION OR PRESENTED
ANY EVIDENCE THAT SUCH A UNIT HAS NOT OR WOULD NOT PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
ACCORDINGLY, AS THE EMPLOYEES SOUGHT HERE BY THE ACT REMAINED PART OF
THE EXISTING AFGE UNIT AT THE ACTIVITY COVERED BY A NEGOTIATED
AGREEMENT, I FIND THAT ACT'S INSTANT PETITION WAS FILED UNTIMELY UNDER
SECTION 202.3(C) OF THE ASSISTANT SECRETARY'S REGULATIONS. /4/ I,
THEREFORE, SHALL ORDER THAT THE PETITION IN CASE NO. 72-5294(RO) BE
DISMISSED.
WITH RESPECT TO THE PETITION FOR CLARIFICATION OF UNIT IN CASE NO.
72-5183(CU), HAVING FOUND THAT THOSE AIR NATIONAL GUARD TECHNICIANS WHO
HAVE BEEN RELOCATED FROM THE SKY HARBOR AIRPORT TO THE PAPAGO MILITARY
RESERVATION HAVE REMAINED IN THE EXISTING EXCLUSIVELY RECOGNIZED UNIT
REPRESENTED BY THE AFGE, I SHALL ORDER THAT THE EXISTING UNIT OF ARIZONA
AIR NATIONAL GUARD TECHNICIANS EMPLOYED AT SKY HARBOR AIRPORT, PHOENIX,
ARIZONA, BE CLARIFIED TO INCLUDE, ADDITIONALLY, ALL ARIZONA AIR NATIONAL
GUARD TECHNICIANS EMPLOYED AT THE PAPAGO MILITARY RESERVATION, PHOENIX,
ARIZONA.
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, FOR
WHICH THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
3046, RECEIVED RECOGNITION AS EXCLUSIVE BARGAINING REPRESENTATIVE ON
SEPTEMBER 29, 1969, UNDER EXECUTIVE ORDER 10988 BE, AND HEREBY IS,
CLARIFIED TO INCLUDE, ADDITIONALLY, ALL ARIZONA AIR NATIONAL GUARD
TECHNICIANS EMPLOYED AT THE PAPAGO MILITARY RESERVATION, PHOENIX,
ARIZONA.
IT IS FURTHER ORDERED THAT THE PETITION IN CASE NO. 72-5294(RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
DECEMBER 10, 1975
/1/ THE PAPAGO MILITARY RESERVATION IS LOCATED SEVEN MILES FROM SKY
HARBOR AIRPORT.
/2/ THIS POSITION IS PRESENTLY REFERRED TO AS AIR COMMANDER.
/3/ THERE WAS NO EVIDENCE THAT THE EMPLOYEES IN THE CLAIMED UNIT HAD
BEEN DENIED EFFECTIVE AND FAIR REPRESENTATION BY THE AFGE.
/4/ SECTION 202.3(C) PROVIDES, IN PERTINENT PART, THAT, "WHEN AN
AGREEMENT COVERING A CLAIMED UNIT HAS BEEN SIGNED AND DATED BY THE
ACTIVITY AND THE INCUMBENT EXCLUSIVE REPRESENTATIVE, A PETITION FOR
EXCLUSIVE RECOGNITION OR OTHER ELECTION PETITION WILL BE CONSIDERED
TIMELY WHEN FILED AS FOLLOWS: (1) NOT MORE THAN NINETY (90) DAYS AND
NOT LESS THAN SIXTY (60) DAYS PRIOR TO THE TERMINAL DATE OF AN AGREEMENT
HAVING A TERM OF THREE (3) YEARS OR LESS FROM THE DATE IT WAS SIGNED AND
DATED . . ."
5 A/SLMR 592; P. 738; CASE NO. 40-5352(AC); DECEMBER 10, 1975.
ARMY AND AIR FORCE EXCHANGE SERVICE,
FORT BENNING EXCHANGE,
FORT BENNING, GEORGIA
A/SLMR NO. 592
THIS CASE INVOLVED A PETITION FOR AMENDMENT OF RECOGNITION FILED BY
THE FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO (PETITIONER) SEEKING
TO AMEND THE RECOGNITION OF THE UNIT TO INCLUDE: ALL REGULAR FULL-TIME
(HOURLY-PAID) EMPLOYEES OF THE ARMY AND AIR FORCE EXCHANGE SERVICE WHO
ARE EMPLOYED AT FORT BENNING, GEORGIA.
ON AUGUST 26, 1973, A REORGANIZATION WAS INSTITUTED BY THE ARMY AND
AIR FORCE EXCHANGE SERVICE (AAFES) WHEREBY THE FORT BENNING EXCHANGE,
ALONG WITH THE ROBIN AIR FORCE BASE EXCHANGE AND MOODY AIR FORCE BASE
EXCHANGE, BECAME RESPONSIBLE DIRECTLY TO A NEWLY ESTABLISHED
ADMINISTRATIVE LEVEL, THE WEST GEORGIA AREA EXCHANGE (WGAE). THE WGAE
OFFICES WERE LOCATED AT FORT BENNING. THIS NEW ADMINISTRATIVE LEVEL
CONSOLIDATED CERTAIN ADMINISTRATIVE FUNCTIONS PREVIOUSLY PERFORMED AT
THE BASE EXCHANGES. IN THIS RESPECT, THE WGAE OFFICES, LOCATED AT FORT
BENNING, WERE STAFFED WITH APPROXIMATELY 50 BARGAINING UNIT EMPLOYEES,
WHICH INCLUDED APPROXIMATELY 39 ADMINISTRATIVELY CLERICAL AND 11
MAINTENANCE EMPLOYEES ADMINISTRATIVELY TRANSFERRED FROM THE FORT BENNING
EXCHANGE. ON DECEMBER 28, 1974, THE ACTIVITY TERMINATED DUES DEDUCTIONS
FOR THE 11 MAINTENANCE EMPLOYEES.
WHILE THE ACTIVITY CONCEDED THAT THE TRANSFERRED EMPLOYEES DID NOT
EXPERIENCE A CHANGE IN DUTIES, WORK LOCATION, PAY OR SUPERVISION, IT
CONTENDED, NEVERTHELESS, THAT THE DISPUTED EMPLOYEES ORIGINALLY SHARED A
"WEAK" COMMUNITY OF INTEREST WITH THE REST OF THE BARGAINING UNIT
EMPLOYEES AND, AS A RESULT OF THE TRANSFER, THIS "WEAK" COMMUNITY OF
INTEREST HAD BEEN MITIGATED FURTHER. SPECIFICALLY, IN REGARD TO THE 11
MAINTENANCE EMPLOYEES, IT CONTENDED THAT, AFTER THE TRANSFER, THEIR
DUTIES INCLUDED OCCASIONAL OVERNIGHT ASSIGNMENTS TO OTHER MEMBER
EXCHANGES. CONSEQUENTLY, THEY NO LONGER SHARED A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST WITH THE BARGAINING UNIT EMPLOYEES OF THE FORT
BENNING EXCHANGE.
THE PETITIONER, ON THE OTHER HAND, ASSERTED THAT THE DISPUTED
EMPLOYEES HAD EXPERIENCED NO CHANGE IN DUTIES, WORK LOCATION,
SUPERVISION, BENEFITS, PERSONNEL POLICIES, AND CLASSIFICATION AND,
THEREFORE, SHOULD CONTINUE TO BE INCLUDED IN THE EXCLUSIVELY RECOGNIZED
BARGAINING UNIT.
THE ASSISTANT SECRETARY CONCLUDED THAT THE ADMINISTRATIVELY
TRANSFERRED EMPLOYEES CONTINUE TO SHARE A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST WITH OTHER UNIT EMPLOYEES REPRESENTED BY THE
PETITIONER. HE NOTED, IN THIS REGARD, THAT, WHILE SUBSEQUENT TO THE
REORGANIZATION, VARIOUS ADMINISTRATIVE FUNCTIONS WERE CENTRALIZED AT THE
WGAE OFFICES AND THAT THE DISPUTED EMPLOYEES WERE COVERED ON DIFFERENT
PAYROLLS, BOTH THE ADMINISTRATIVE CLERICALS AND THE MAINTENANCE
EMPLOYEES, AS BEFORE, REPORTED TO WORK AT THE SAME PLACE AT FORT
BENNING, RECEIVED ASSIGNMENTS FROM AND WERE RESPONSIBLE TO THE SAME
IMMEDIATE SUPERVISOR, RECEIVED THE SAME RATE OF PAY AND SCHEDULE OF
BENEFITS, WERE GOVERNED BY THE SAME PERSONNEL POLICIES AND PROCEDURES,
AND PERFORMED ESSENTIALLY THE SAME DUTIES. MOREOVER, HE NOTED THAT THE
TEMPORARY DUTY ASSIGNMENTS OF THE MAINTENANCE EMPLOYEES WERE
INSIGNIFICANT IN NUMBER AND, FOR THE MOST PART, MINIMAL IN LENGTH.
ACCORDINGLY, HE ORDERED THAT THE RECOGNIZED UNIT BE AMENDED TO
INCLUDE ALL REGULAR FULL-TIME (HOURLY-PAID) EMPLOYEES OF THE ARMY AND
AIR FORCE EXCHANGE SERVICE WHO ARE EMPLOYED AT FORT BENNING, GEORGIA.
ARMY AND AIR FORCE EXCHANGE SERVICE,
FORT BENNING EXCHANGE,
FORT BENNING, GEORGIA
AND
FEDERAL EMPLOYEES METAL TRADES COUNCIL,
AFL-CIO, FORT BENNING, GEORGIA
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER ROBERT F.
WOODLAND. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE
FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING A BRIEF FILED BY THE
FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, FORT BENNING, GEORGIA,
HEREIN CALLED PETITIONER, THE ASSISTANT SECRETARY FINDS:
THE PETITIONER FILED THE SUBJECT PETITION SEEKING TO AMEND ITS
RECOGNITION TO INCLUDE ALL REGULAR FULL-TIME (HOURLY-PAID) EMPLOYEES OF
THE ARMY AND AIR FORCE EXCHANGE SERVICE, HEREIN CALLED AAFES, WHO ARE
EMPLOYED AT FORT BENNING, GEORGIA. /1/ THE RECORD INDICATES THAT
BEGINNING IN 1972, THE AAFES UNDERTOOK A REORGANIZATION OF ITS ENTIRE
EXCHANGE SYSTEM IN THE CONTINENTAL UNITED STATES. AT ALL TIMES MATERIAL
HEREIN, THE SOUTHEAST EXCHANGE REGION WAS ONE OF FIVE EXCHANGE REGIONS
IN THE AAFES. PRIOR TO AUGUST 1973, THE FORT BENNING EXCHANGE WAS AN
AUTONOMOUS EXCHANGE RESPONSIBLE DIRECTLY TO THE SOUTHEAST EXCHANGE
REGION. EFFECTIVE AUGUST 26, 1973, A REORGANIZATION WAS INSTITUTED
WHEREBY THE FORT BENNING EXCHANGE, ALONG WITH THE ROBIN AIR FORCE BASE
EXCHANGE AND MOODY AIR FORCE BASE EXCHANGE, BECAME RESPONSIBLE DIRECTLY
TO A NEWLY ESTABLISHED ADMINISTRATIVE LEVEL, THE WEST GEORGIA AREA
EXCHANGE, HEREIN CALLED WGAE. THE WGAE'S OFFICES WERE LOCATED AT FORT
BENNING. /2/ THE IMPOSITION OF THIS NEW MANAGERIAL LEVEL, WHICH
CONSOLIDATED CERTAIN ADMINISTRATIVE FUNCTIONS PREVIOUSLY PERFORMED AT
THE FORT BENNING, ROBIN AND MOODY AIR FORCE BASE EXCHANGES, WAS
CONSISTENT WITH AAFES'S DESIRE FOR CENTRALIZATION OF SUCH SERVICES AS
ACCOUNTING, PERSONNEL, CONTRACT ADMINISTRATION AND CERTAIN MANAGEMENT
OPERATIONS. IN THIS RESPECT, THE WGAE OFFICE LOCATED AT FORT BENNING
WERE STAFFED WITH APPROXIMATELY 50 BARGAINING UNIT EMPLOYEES, WHICH
INCLUDED 39 ADMINISTRATIVE CLERICAL AND 11 MAINTENANCE EMPLOYEES,
ADMINISTRATIVELY TRANSFERRED FROM THE FORT BENNING EXCHANGE. THE
EVIDENCE ESTABLISHES THAT ON DECEMBER 28, 1974, THE ACTIVITY TERMINATED
DUES DEDUCTIONS FOR THE 11 MAINTENANCE EMPLOYEES.
WHILE THE ACTIVITY CONCEDES THAT THE TRANSFERRED EMPLOYEES HAVE NOT
EXPERIENCED A CHANGE IN DUTIES, WORK LOCATION, PAY AND SUPERVISION, IT
CONTENDS, NEVERTHELESS, THAT THE DISPUTED EMPLOYEES ORIGINALLY SHARED A
"WEAK" COMMUNITY OF INTEREST WITH THE REST OF THE BARGAINING UNIT
EMPLOYEES AND, AS A RESULT OF THE TRANSFER AND THE ADDED RESPONSIBILITY
FOR SUPPORTING THE WGAE MEMBER EXCHANGES, THIS "WEAK" COMMUNITY OF
INTEREST HAS BEEN MITIGATED FURTHER. IT FURTHER CONTENDS THAT THE
MAINTENANCE EMPLOYEES OCCASIONALLY ARE ASSIGNED OVERNIGHT TEMPORARY
DUTIES TO OTHER MEMBER EXCHANGES. HENCE, IT ARGUES THAT THE DISPUTED
EMPLOYEES NO LONGER SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
WITH THE BARGAINING UNIT EMPLOYEES OF THE FORT BENNING EXCHANGE. /3/ IN
RESPONSE, THE PETITIONER CONTENDS THAT THE DISPUTED EMPLOYEES HAVE
EXPERIENCED NO CHANGE IN DUTIES, WORK LOCATION, SUPERVISION, BENEFITS,
PERSONNEL POLICIES, AND CLASSIFICATION SINCE THE TRANSFERS OCCURRED.
CONSEQUENTLY, THE PETITIONER MAINTAINS THAT THE TRANSFERS WERE THE
RESULT OF A PAPER REORGANIZATION AND, THEREFORE, THE REASSIGNED
EMPLOYEES SHOULD CONTINUE TO BE INCLUDED IN THE EXCLUSIVELY RECOGNIZED
BARGAINING UNIT.
THE RECORD INDICATES THAT, WHILE SUBSEQUENT TO THE REORGANIZATION,
VARIOUS ADMINISTRATIVE FUNCTIONS WERE CENTRALIZED AT THE WGAE OFFICES,
AND THAT THE DISPUTED EMPLOYEES WERE COVERED ON DIFFERENT PAYROLLS, BOTH
THE ADMINISTRATIVE CLERICALS AND THE MAINTENANCE EMPLOYEES, AS BEFORE,
REPORTED TO WORK AT THE SAME PLACE AT FORT BENNING, RECEIVED ASSIGNMENTS
FROM AND WERE RESPONSIBLE TO THE IMMEDIATE SUPERVISOR, RECEIVED THE SAME
RATES OF PAY AND SCHEDULE OF BENEFITS, WERE GOVERNED BY THE SAME
PERSONNEL POLICIES AND PROCEDURES, AND PERFORMED ESSENTIALLY THE SAME
DUTIES, WITH THE EXCEPTION THAT MAINTENANCE EMPLOYEES WERE REQUIRED
OCCASIONALLY TO PERFORM THESE DUTIES AT THE OTHER MEMBER EXCHANGES. /4/
THE EVIDENCE ESTABLISHED FURTHER THAT ALL OF THE TRANSFERRED EMPLOYEES
CONTINUED TO MAINTAIN THE SAME WORK CONTACTS WITH OTHER EMPLOYEES WHO
UNDISPUTEDLY REMAINED IN THE FORT BENNING EXCHANGE BARGAINING UNIT.
BASED ON THE FOREGOING CIRCUMSTANCES, I FIND THAT THE
ADMINISTRATIVELY TRANSFERRED EMPLOYEES IN ISSUE CONTINUE TO SHARE A
CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST WITH THE OTHER BARGAINING
UNIT EMPLOYEES REPRESENTED BY THE PETITIONER AND, THEREFORE, REMAIN IN
THE BARGAINING UNIT. ACCORDINGLY, I FIND THAT THE EXISTING RECOGNITION
SHOULD BE AMENDED TO INCLUDE: ALL REGULAR FULL-TIME (HOURLY-PAID)
EMPLOYEES OF THE ARMY AND AIR FORCE EXCHANGE SERVICE WHO ARE EMPLOYED AT
FORT BENNING, GEORGIA. /5/
IT IS HEREBY ORDERED THAT THE UNIT, RECOGNIZED IN 1964, REPRESENTED
BY THE FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, BE, AND HEREBY
IS, AMENDED TO INCLUDE: ALL REGULAR FULL-TIME (HOURLY-PAID) EMPLOYEES
OF THE ARMY AND AIR FORCE EXCHANGE SERVICE WHO ARE EMPLOYED AT FORT
BENNING, GEORGIA.
DATED, WASHINGTON, D.C.
DECEMBER 10, 1975
/1/ THE UNIT REPRESENTED FOR WHICH THE PETITIONER WAS ACCORDED
EXCLUSIVE RECOGNITION IN 1964 INCLUDED: "ALL REGULAR FULL-TIME
(HOURLY-PAID) EMPLOYEES OF THE FT. BENNING EXCHANGE, FT. BENNING,
GEORGIA; EXCLUDED: ANY MANAGERIAL, EXECUTIVE, OR PROFESSIONAL
EMPLOYEES; ANY EMPLOYEE IN PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY; ALL SUPERVISORS AS DEFINED BY EXECUTIVE ORDER 11491;
EMPLOYEES WHOSE ASSIGNED DUTIES REQUIRE THAT THEY REPRESENT THE
INTERESTS OF THE AAFES, MANAGEMENT OR ONE OF ITS ACTIVITIES IN
CONSULTATIONS OR NEGOTIATIONS WITH THE UNION."
/2/ SUBSEQUENTLY, THE FORT MCCLELLAN AND REDSTONE ARSENAL EXCHANGES
WERE ADDED TO THE WGAE IN MAY 1975, JOINING THE FORT MCPHERSON EXCHANGE
WHICH WAS ADDED IN JULY 1974.
/3/ DURING THE HEARING, THE HEARING OFFICER RULED THAT THE ACTIVITY'S
CONTENTION THAT THE UNION COULD NOT ENGAGE IN EFFECTIVE DEALINGS BECAUSE
IT WAS WITHOUT AN ELECTED PRESIDENT FOR MORE THAN A YEAR AND THE LOCAL
WAS UNABLE TO OBTAIN A QUORUM OF 11 MEMBERS FOR ANY ELECTION OF
OFFICERS, HAD NO BEARING ON THE APPROPRIATENESS OF THE BARGAINING UNIT.
/4/ THE EVIDENCE ESTABLISHES THAT THE TEMPORARY DUTY ASSIGNMENTS WERE
INFREQUENT AND, IN NORMAL SITUATIONS, MINIMAL IN LENGTH.
/5/ I FIND THAT SUCH A BASE-WIDE UNIT WILL PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS.
5 A/SLMR 591; P. 736; CASE NO. 70-4743(RO); DECEMBER 10, 1975.
DEPARTMENT OF ARMY,
HEADQUARTERS, WESTERN AREA MILITARY TRAFFIC
MANAGEMENT COMMAND,
DIRECTORATE OF PERSONAL PROPERTY,
OAKLAND ARMY BASE, OAKLAND, CALIFORNIA
A/SLMR NO. 591
THIS CASE AROSE WHEN THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1157 (AFGE), FILED A PETITION SEEKING AN ELECTION IN A
UNIT OF ALL NONSUPERVISORY, NONPROFESSIONAL GENERAL SCHEDULE EMPLOYEES
WITHIN THE DIRECTORATE OF PERSONAL PROPERTY AT THE ACTIVITY. THE
ACTIVITY CONTENDED THAT THE PROPOSED UNIT WOULD NOT PROMOTE EFFECTIVE
DEALINGS OR EFFICIENCY OF AGENCY OPERATIONS, AND THAT THE APPROPRIATE
UNIT SHOULD INCLUDE OTHER UNREPRESENTED NONSUPERVISORY, NONPROFESSIONAL
GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES OF HEADQUARTERS, WESTERN AREA
MILITARY TRAFFIC MANAGEMENT COMMAND, OAKLAND ARMY BASE, OAKLAND,
CALIFORNIA (HQWAMTMC).
THE ASSISTANT SECRETARY FOUND THAT THE UNIT SOUGHT BY THE AFGE WAS
NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. IN THIS
REGARD, HE NOTED THAT THE EMPLOYEES OF THE CLAIMED UNIT ARE SERVICED BY
THE SAME CIVILIAN PERSONNEL OFFICE AS OTHER UNREPRESENTED HQWAMTMC
EMPLOYEES AND HAVE SIMILAR AREAS OF CONSIDERATION FOR
REDUCTIONS-IN-FORCE AND PROMOTIONS, AND FURTHER, THAT THE SKILLS
UTILIZED BY THE EMPLOYEES WITHIN THE CLAIMED UNIT ARE FOUND AMONG
UNREPRESENTED HQWAMTMC EMPLOYEES AND THAT THERE HAVE BEEN SEVERAL
INSTANCES OF TRANSFERS FROM HQWAMTMC OFFICES AND DIRECTORATES INTO THE
CLAIMED UNIT. IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND
THAT THE EMPLOYEES IN THE CLAIMED UNIT DID NOT SHARE A SEPARATE AND
DISTINCT COMMUNITY OF INTEREST FROM OTHER UNREPRESENTED EMPLOYEES AT
HQWAMTMC AND THAT THE PROPOSED FRAGMENTED UNIT WOULD NOT PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, HE
ORDERED THAT THE PETITION BE DISMISSED.
DEPARTMENT OF ARMY,
HEADQUARTERS, WESTERN AREA MILITARY TRAFFIC
MANAGEMENT COMMAND,
DIRECTORATE OF PERSONAL PROPERTY,
OAKLAND ARMY BASE, OAKLAND, CALIFORNIA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1157
OAKLAND, CALIFORNIA
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER GEORGE R.
SAKANARI. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE
FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1157, SEEKS AN ELECTION IN A UNIT CONSISTING OF ALL
NONSUPERVISORY, NONPROFESSIONAL GENERAL SCHEDULE EMPLOYEES WITHIN THE
DIRECTORATE OF PERSONAL PROPERTY, HEADQUARTERS, WESTERN AREA MILITARY
TRAFFIC MANAGEMENT COMMAND, OAKLAND ARMY BASE, OAKLAND, CALIFORNIA. THE
ACTIVITY CONTENDS THAT THE APPROPRIATE UNIT SHOULD CONSIST OF ALL
NONSUPERVISORY, NONPROFESSIONAL GENERAL SCHEDULE AND WAGE GRADE
EMPLOYEES ASSIGNED TO THE ORGANIZATIONAL ELEMENTS OF HEADQUARTERS,
WESTERN AREA MILITARY TRAFFIC MANAGEMENT COMMAND, OAKLAND ARMY BASE,
OAKLAND, CALIFORNIA (HQWAMTMC), INCLUDING 10 UNITS CURRENTLY REPRESENTED
BY THE PETITIONER AT THE ACTIVITY. IN THIS REGARD, THE ACTIVITY ASSERTS
THAT THE PROPOSED UNIT IS NOT APPROPRIATE AS THE CLAIMED EMPLOYEES SHARE
COMMON INTERESTS AND WORKING CONDITIONS WITH OTHER UNREPRESENTED
EMPLOYEES AND, FURTHER, THAT THE PETITIONED FOR UNIT WOULD NOT PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. /1/
THE MISSION OF HQWAMTMC IS TO PROVIDE TRANSPORTATION SERVICES
INVOLVED IN THE SURFACE, WATER AND AIR MOVEMENT OF DEPARTMENT OF DEFENSE
SPONSORED CARGO WITHIN AND THROUGH THE CONTINENTAL UNITED STATES AND TO
MANAGE ASSIGNED INSTALLATIONS AND ACTIVITIES IN 14 WESTERN STATES.
ORGANIZATIONALLY, HQWAMTMC IS SUBDIVIDED INTO 8 OFFICES AND 8
DIRECTORATES. THESE ARE: OFFICE OF EQUAL OPPORTUNITY; OFFICE OF
PUBLIC AFFAIRS; OFFICE OF STAFF JUDGE ADVOCATE; OFFICE OF PLANNING;
OFFICE OF SAFETY AND SECURITY; AIR CARGO SUPPORT AND EVALUATION OFFICE;
WESTERN MANAGEMENT INFORMATION SYSTEMS OFFICER; OFFICE OF THE
COMMANDER; DIRECTORATE OF INLAND TRAFFIC; DIRECTORATE OF INTERNATIONAL
TRAFFIC; DIRECTORATE OF SUPPORT SERVICES; DIRECTORATE OF PROCUREMENT;
DIRECTORATE OF PERSONNEL AND ADMINISTRATION; COMPTROLLER DIRECTORATE;
DIRECTORATE OF COMMUNICATIONS-ELECTRONICS; AND THE DIRECTORATE OF
PERSONAL PROPERTY. THE DIRECTORATE OF COMMUNICATIONS-ELECTRONICS AND
THE WESTERN MANAGEMENT INFORMATION SYSTEMS OFFICER ARE TENANT
ORGANIZATIONS OF HQWAMTMC.
THE EVIDENCE REVEALS THAT THE DIRECTORATE OF PERSONAL PROPERTY IS
RESPONSIBLE FOR THE SURVEILLANCE, SHIPMENT AND STORAGE OF DEPARTMENT OF
DEFENSE PERSONAL PROPERTY AND U.S. GOVERNMENT SPONSORED HOUSEHOLD GOODS.
THE CLAIMED UNIT CONSISTS OF 11 EMPLOYEES AND IS SUBDIVIDED INTO A
TRAFFIC DIVISION AND A STORAGE DIVISION. THE TRAFFIC DIVISION
ESSENTIALLY PROVIDES TECHNICAL SERVICES AND INFORMATION REGARDING
PERSONAL PROPERTY TRANSPORT, WHEREAS THE STORAGE DIVISION CONDUCTS ON
SITE INSPECTIONS OF WAREHOUSES AND STORAGE FACILITIES TO DETERMINE
CONTRACT AWARDS AND COMPLIANCE. THE STORAGE DIVISION HAS 5 EMPLOYEES,
ALL OF WHOM ARE STORAGE SPECIALISTS, WHILE THE TRAFFIC DIVISION HAS 6
EMPLOYEES WITH THE FOLLOWING JOB CLASSIFICATIONS: SECRETARY;
PROCUREMENT CLERK; TRANSPORTATION ASSISTANT AND TRAFFIC MANAGEMENT
SPECIALIST (3).
THE RECORD DISCLOSES THAT EMPLOYEES WITHIN THE CLAIMED UNIT AND OTHER
UNREPRESENTED HQWAMTMC EMPLOYEES ARE SERVICED BY THE SAME CIVILIAN
PERSONNEL OFFICE; HAVE SIMILAR AREAS OF CONSIDERATION FOR
REDUCTIONS-IN-FORCE, PROMOTIONS AND JOB TRANSFERS; AND RECEIVE
IDENTICAL FRINGE BENEFITS. MOREOVER, THEY HAVE ESSENTIALLY THE SAME
SKILLS, TOUR OF DUTY AND METHOD OF PAY AS CERTAIN OTHER HQWAMTMC
EMPLOYEES; HAVE SIMILAR LINES OF AUTHORITY AND SUPERVISION; AND ARE
SUBJECT TO THE SAME LABOR RELATIONS PROGRAMS AND POLICIES. IN THIS
CONNECTION, THE RECORD SHOWS THAT THERE HAVE BEEN SEVERAL INSTANCES OF
TRANSFERS AND PROMOTIONS FROM HQWAMTMC OFFICES AND DIRECTORATES INTO THE
CLAIMED UNIT AND THAT MANY OF THE SKILLS UTILIZED BY EMPLOYEES WITHIN
THE CLAIMED UNIT ARE ALSO FOUND AMONG OTHER UNREPRESENTED HQWAMTMC
EMPLOYEES. ADDITIONALLY, THE RECORD REVEALS THAT THE CLAIMED UNIT IS
LOCATED IN THE SAME BUILDING AS A SUBSTANTIAL MAJORITY OF HQWAMTMC
ADMINISTRATIVE UNITS AND THAT THE EMPLOYEES OF THE CLAIMED UNIT HAVE
CONSIDERABLE WORK CONTACTS WITH OTHER HQWAMTMC OFFICES AND DIRECTORATES.
FURTHER, THE ACTIVITY OFFERS ALL EMPLOYEES, REGARDLESS OF THEIR DUTY
STATION, OCCUPATIONAL AND CAREER TRAINING, AND THE COMMANDER, HQWAMTMC
IS AUTHORIZED TO CONDUCT LABOR NEGOTIATIONS AT THE HEADQUARTERS LEVEL.
BASED ON THE FOREGOING, I FIND THAT THE CLAIMED UNIT IS NOT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER.
PARTICULARLY NOTED IN THIS REGARD WAS THE FACT THAT THE EMPLOYEES WITHIN
THE CLAIMED UNIT, AMONG OTHER THINGS, ARE SERVICED BY THE SAME PERSONNEL
OFFICE AS OTHER UNREPRESENTED HQWAMTMC EMPLOYEES AND HAVE SIMILAR AREAS
OF CONSIDERATION FOR REDUCTIONS-IN-FORCE AND PROMOTIONS. MOREOVER, THE
RECORD REVEALS THAT THE SKILLS UTILIZED BY EMPLOYEES IN THE CLAIMED UNIT
ARE FOUND AMONG OTHER UNREPRESENTED HQWAMTMC EMPLOYEES AND, IN THIS
REGARD, THERE HAVE BEEN SEVERAL INSTANCES OF EMPLOYEE TRANSFERS FROM
HQWAMTMC OFFICES AND DIRECTORATES INTO THE CLAIMED UNIT. ACCORDINGLY, I
FIND THAT THE EMPLOYEES IN THE PETITIONED FOR UNIT DO NOT POSSES A CLEAR
AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND APART FROM OTHER
UNREPRESENTED EMPLOYEES OF THE ACTIVITY. MOREOVER, IN MY VIEW, SUCH A
FRAGMENTED UNIT COULD NOT REASONABLY BE EXPECTED TO PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, I SHALL
ORDER THAT THE SUBJECT PETITION BE DISMISSED.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 70-4743(RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
DECEMBER 10, 1975
/1/ THE PETITIONER REPRESENTS APPROXIMATELY 67 PERCENT OF THE
ACTIVITY'S AUTHORIZED COMPLEMENT OF CIVILIAN EMPLOYEES AT HQWAMTMC AND
HAS A LONG HISTORY OF COLLECTIVE BARGAINING WITH THE ACTIVITY UNDER
EXECUTIVE ORDERS 10988 AND 11491. ALSO, THE RECORD REVEALS THAT THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL NO. 1, REPRESENTS THE
ACTIVITY'S NONSUPERVISORY GENERAL SCHEDULE EMPLOYEES IN THE DIRECTORATE
OF PROCUREMENT AND THAT THE SERVICE EMPLOYEES INTERNATIONAL UNION,
AFL-CIO, LOCAL 250, REPRESENTS ALL HQWAMTMC NON-APPROPRIATED FUND
EMPLOYEES.
5 A/SLMR 590; P. 734; CASE NO. 53-7818(AC/CU); DECEMBER 10, 1975.
DEPARTMENT OF THE AIR FORCE,
AERONAUTICAL SYSTEMS DIVISION,
AIR FORCE SYSTEMS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
A/SLMR NO. 590
THIS CASE INVOLVED A PETITION FOR AMENDMENT OF CERTIFICATION (AC)
FILED BY LODGE 2065, INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AFL-CIO (IAM), SEEKING TO CHANGE THE UNIT DESCRIPTION
TO INCLUDE THOSE GENERAL SCHEDULE ENGINEERING TECHNICIANS ASSIGNED TO
THE TECHNICAL FACILITIES DIVISION AND TO DESIGNATE A CHANGE IN
ORGANIZATIONAL TITLE OF THE DIRECTORATE OF FLIGHT TEST TO THE 4950TH
TEST WING. THE IAM REPRESENTS EXCLUSIVELY ALL NONSUPERVISORY WAGE BOARD
(WB) EMPLOYEES SERVICED BY THE AERONAUTICAL SERVICE DIVISION, WITH THE
EXCEPTION OF THOSE ASSIGNED TO THE DIRECTORATE OF FLIGHT TEST AND THE
FOREIGN TECHNOLOGY DIVISION.
WITH REGARD TO THE APPROXIMATELY 26 GENERAL SCHEDULE ENGINEERING
TECHNICIANS IN THE ACTIVITY'S TECHNICAL FACILITIES DIVISION, THE
EMPLOYEES IN QUESTION WERE AT ONE TIME WAGE BOARD (WB) EMPLOYEES, BUT AS
A RESULT OF A COMPETITIVE MERIT PROMOTION ACTION IN 1974, THEY BECAME
GENERAL SCHEDULE (GS) EMPLOYEES. THE ACTIVITY CONTENDED THAT, AS A
RESULT OF THEIR COMPETITIVE MERIT PROMOTION, THE GS ENGINEERING
TECHNICIANS HAVE ACQUIRED INCREASED RESPONSIBILITIES AND NO LONGER
CONTINUED TO SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST WITH
THE WB EMPLOYEES.
THE EVIDENCE ESTABLISHED THAT, DESPITE THE CHANGE IN THEIR
DESIGNATION AND METHOD OF COMPENSATION, THE DUTIES OF THE EMPLOYEES IN
QUESTION HAD NOT CHANGED SUBSTANTIALLY; THAT THEY HAD NOT UNDERGONE ANY
FORMALIZED TRAINING; AND THAT THEY CONTINUED TO WORK IN THE SAME
LOCATION AND IN CLOSE CONTACT WITH WB EMPLOYEES. CONSEQUENTLY, THE
ASSISTANT SECRETARY FOUND THAT THE GS ENGINEERING TECHNICIANS CONTINUED
TO SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST WITH THE WB
EMPLOYEES REPRESENTED BY THE IAM.
ACCORDINGLY, HE ORDERED THAT THE UNIT BE CLARIFIED TO INCLUDE ALL GS
ENGINEERING TECHNICIANS OF THE TECHNICAL FACILITIES DIVISION AND, IN
ADDITION, THAT THE IAM CERTIFICATION BE AMENDED TO DESIGNATE THE CHANGE
IN ORGANIZATIONAL TITLE OF THE DIRECTORATE OF FLIGHT TEST TO THE 4950TH
TEST WING.
DEPARTMENT OF THE AIR FORCE,
AERONAUTICAL SYSTEMS DIVISION,
AIR FORCE SYSTEMS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
AND
LODGE 2065, INTERNATIONAL ASSOCIATION
OF MACHINISTS AND AEROSPACE WORKERS,
AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER WILLIAM C.
SPELLACY. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE
FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE BRIEFS FILED BY
THE PARTIES, THE ASSISTANT SECRETARY FINDS:
THE PETITIONER, LODGE 2065, INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, AFL-CIO, HEREIN CALLED IAM, IS THE EXCLUSIVE
REPRESENTATIVE OF CERTAIN EMPLOYEES OF THE ACTIVITY. /1/ IN THIS
PROCEEDING, THE IAM SEEKS TO AMEND ITS CERTIFICATION TO REFLECT A CHANGE
IN THE ORGANIZATIONAL DESIGNATION OF THE DIRECTORATE OF FLIGHT TEST TO
THE 4950TH TEST WING AND TO CLARIFY THE STATUS OF APPROXIMATELY 26
GENERAL SCHEDULE (GS) ENGINEERING TECHNICIANS EMPLOYED IN THE TECHNICAL
FACILITIES DIVISION OF THE ACTIVITY'S APL. /2/ PRIOR TO MARCH 24, 1974,
THESE EMPLOYEES HAD BEEN CLASSIFIED AS WAGE BOARD (WB) EMPLOYEES;
HOWEVER, AS OF THAT DATE, THEY WERE MERIT PROMOTED COMPETITIVELY TO
NEWLY CREATED POSITIONS OF GS ENGINEERING TECHNICIANS AND CONCOMITANTLY,
26 WB POSITIONS WERE ABOLISHED. THE IAM CONTENDS THAT THE DUTIES
PERFORMED BY THE EMPLOYEES IN QUESTION ARE ESSENTIALLY THE SAME AS THOSE
THEY PERFORMED PRIOR TO THE MERIT PROMOTIONS, THAT THEY USE THE SAME
TOOLS AND WORK IN THE SAME LOCATION, AND THAT THE CHANGE IN THE METHOD
OF THEIR COMPENSATION SHOULD NOT REMOVE THEM FROM THE IAM UNIT. THE
ACTIVITY, ON THE OTHER HAND, TAKES THE POSITION THAT THE GS ENGINEERING
TECHNICIANS ACQUIRED INCREASED RESPONSIBILITIES REQUIRING THEM TO WRITE
REPORTS FOR THE PROJECT ENGINEER, AS WELL AS COLLECT AND ANALYZE TEST
DATA AND, AS A RESULT, THEY NO LONGER CONTINUE TO SHARE A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST WITH THE WB EMPLOYEES IN THE UNIT.
THE MISSION OF THE APL IS TO FORMULATE AND CONDUCT BASIC EXPLORATORY
AND ADVANCED RESEARCH IN AERONAUTICAL SYSTEMS THAT SUPPORT AIRCRAFT,
PARTICULARLY ENGINE POWER, FUELS AND LUBRICANTS. WITHIN THE APL IS THE
TECHNICAL FACILITIES DIVISION WHICH FACILITATES THIS MISSION BY
PERFORMING IN-HOUSE RESEARCH AND PROVIDING ENGINEERING SUPPORT TO THE
OTHER DIVISIONS OF THE APL. /3/ SPECIFICALLY, IT DIRECTS THE
FABRICATION, MODIFICATION AND REPAIR OF EXPERIMENTAL PROTOTYPE TEST
SYSTEMS, PROPULSION SUPPORT EQUIPMENT, AND INSTRUMENTATION SYSTEMS, IN
ADDITION TO PERFORMING STUDIES AND ANALYSES TO DEFINE THE
CHARACTERISTICS OF EXPERIMENTAL FACILITIES.
THE RECORD INDICATES THAT THE GS ENGINEERING TECHNICIAN POSITION WAS
CREATED IN ORDER TO IMPROVE THE INTERFACE BETWEEN THE PROJECT ENGINEER,
WHO CONCEPTUALLY DEVELOPS THE EXPERIMENTAL TEST TO BE PERFORMED, AND THE
GS ENGINEERING TECHNICIAN, WHO IS RESPONSIBLE FOR ACTUALLY PERFORMING
THE TEST. THE EVIDENCE ESTABLISHES, HOWEVER, THAT THERE IS NO
ESTABLISHED TRAINING PROGRAM TO UPGRADE WB EMPLOYEES TO THIS GS
POSITION. RATHER, THE EMPLOYEES IN QUESTION RECEIVE INSTRUCTION FROM
THE PROJECT ENGINEER ON A "NEED TO KNOW BASIS."
WITH RESPECT TO THE SPECIFIC DUTIES PERFORMED BY THE DISPUTED
EMPLOYEES, THE EVIDENCE ESTABLISHES THAT THE GS ENGINEERING TECHNICIANS
OF THE TECHNICAL FACILITIES DIVISION ARE REQUIRED TO ATTEND MEETINGS
WITH THE PROJECT ENGINEER AT ALL STAGES OF THE PROJECT, SET UP AND
CONDUCT THE TESTS, GATHER AND ANALYZE THE DATA, AND WRITE A FINAL
REPORT. WHILE IT APPEARS THAT THEY HAVE THE INCREASED RESPONSIBILITY OF
ASSURING THE PROPER EXECUTION OF A TEST PROJECT, THE EVIDENCE INDICATES
THAT THE GS ENGINEERING TECHNICIANS ARE PERFORMING ESSENTIALLY THE SAME
DUTIES THAT THEY PERFORMED AS WB EMPLOYEES. IN ADDITION, THE RECORD
REVEALS THAT THE EMPLOYEES IN QUESTION HAVE CONTINUED TO WORK AT THE
SAME PHYSICAL LOCATION, THE SAME TEST AREA AND, IN THIS CONNECTION, THEY
COME IN CONTACT WITH WB EMPLOYEES PARTICIPATING IN THE TEST PROJECT.
MOREOVER, WHILE THE EVIDENCE ESTABLISHES THAT THE INTERFACE BETWEEN THE
GS ENGINEERING TECHNICIANS AND THE PROJECT ENGINEERS HAS INCREASED, THEY
CONTINUE, NEVERTHELESS, TO WORK CLOSELY WITH WB EMPLOYEES IN PERFORMING
THE REQUIRED TESTS.
BASED ON THE FOREGOING CIRCUMSTANCES, I FIND THAT THE GS ENGINEERING
TECHNICIANS EMPLOYED IN THE TECHNICAL FACILITIES DIVISION CONTINUE TO
SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST WITH THE WB
EMPLOYEES OF THE ACTIVITY REPRESENTED BY THE IAM. PARTICULARLY NOTED IN
THIS REGARD WERE THE FACTS THAT THE EMPLOYEES IN QUESTION HAVE NOT
UNDERTAKEN ANY FORMALIZED TRAINING WITH RESPECT TO THEIR NEW POSITIONS;
THEIR DUTIES HAVE NOT CHANGED SUBSTANTIALLY DESPITE THE CHANGE IN THEIR
DESIGNATION AND METHOD OF COMPENSATION; THEY CONTINUE TO WORK IN THE
SAME LOCATION; AND THEY CONTINUE TO WORK IN CLOSE CONTACT WITH THE WB
EMPLOYEES IN PERFORMING THE REQUIRED TESTS. /4/ ACCORDINGLY, I FIND
THAT THE EXISTING EXCLUSIVELY RECOGNIZED UNIT SHOULD BE CLARIFIED TO
INCLUDE THE GS ENGINEERING TECHNICIANS IN THE ACTIVITY'S TECHNICAL
FACILITIES DIVISION AND, IN ADDITION, I FIND THAT THE IAM'S
CERTIFICATION SHOULD BE AMENDED TO REFLECT THE CHANGE IN DESIGNATION OF
THE DIRECTORATE OF FLIGHT TEST TO THE 4950TH TEST WING.
IT IS HEREBY ORDERED THAT THE CERTIFICATION ISSUED ON OCTOBER 15,
1970, TO LODGE 2065, INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AFL-CIO, BE, AND HEREBY IS, AMENDED BY SUBSTITUTING
THEREIN FOR THE DIRECTORATE OF FLIGHT TEST, THE 4950TH TEST WING, AIR
FORCE SYSTEMS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO.
IF IS FURTHER ORDERED THAT THE UNIT EXCLUSIVELY REPRESENTED BY LODGE
2065, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,
AFL-CIO, BE, AND HEREBY IS, CLARIFIED BY INCLUDING THOSE GENERAL
SCHEDULE ENGINEERING TECHNICIANS ASSIGNED TO THE TECHNICAL FACILITIES
DIVISION IDENTIFIED BY THE SYMBOLS AFAPL-TF.
DATED, WASHINGTON, D.C.
DECEMBER 10, 1975
/1/ ON OCTOBER 15, 1970, THE IAM WAS CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE IN A UNIT OF: "ALL AERONAUTICAL SYSTEMS DIVISION
SERVICED NONSUPERVISORY WAGE BOARD PERSONNEL LOCATED IN WRIGHT-PATTERSON
AIR FORCE BASE EXCLUDING THOSE ASSIGNED TO DIRECTORATE OF FLIGHT TEST
AND FOREIGN TECHNOLOGY DIVISION; AND ALSO EXCLUDING MANAGERS,
SUPERVISORS, FOREMEN, GUARDS, AND THOSE EMPLOYEES IN PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY." SPECIFICALLY, THE CERTIFICATION
ENCOMPASSES EMPLOYEES IN THE AIR FORCE AERO PROPULSION LABORATORY (APL),
THE AIR FORCE AVIONICS LABORATORY (AFAL), THE AIR FORCE MATERIALS
LABORATORY (AFML), THE AIR FORCE FLIGHT DYNAMICS LABORATORY (AFFDL), THE
ADMINISTRATIVE OFFICE OF THE AERONAUTICAL SYSTEMS DIVISION (DA), THE
DEPUTY FOR ENGINEERING, THE DIRECTORATE OF CREW AND AGE (ENC), AND THE
AEROSPACE RESEARCH LABORATORY (ARL).
/2/ AT THE HEARING, THE PARTIES STIPULATED TO THE CHANGE IN THE
ORGANIZATIONAL TITLE OF THE DIRECTORATE OF FLIGHT TEST TO THE 4950TH
TEST WING. THERE WAS NO RECORD EVIDENCE TO INDICATE THAT SUCH
STIPULATION WAS IMPROPER.
/3/ IN ADDITION TO THE TECHNICAL FACILITIES DIVISION, THE APL
CONSISTS OF FOUR OTHER DIVISIONS: RAMJET, TURBINE ENGINE, AEROSPACE
POWER, AND FUELS AND LUBRICATION.
/4/ SEE DEPARTMENT OF THE NAVY, NORFOLD NAVAL SHIPYARD, A/SLMR NO.
547 AND DEPARTMENT OF THE NAVY, CHARLESTON NAVAL SHIPYARD, A/SLMR NO.
302.
5 A/SLMR 589; P. 730; CASE NOS. 22-5755((RA)(AC)),
22-5796((CU)(AC)); DECEMBER 10, 1975.
NATIONAL PARK SERVICE
A/SLMR NO. 589
IN THIS CASE, THE NATIONAL PARK SERVICE (NPS) FILED AN RA/AC"
PETITION, WHICH, IN EFFECT, SOUGHT A DETERMINATION BY THE ASSISTANT
SECRETARY WITH RESPECT TO THE IMPACT OF A REORGANIZATION OF MARCH 3,
1974, ON THE EXCLUSIVELY RECOGNIZED UNIT OF THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 800 (NFFE), AT CERTAIN PARKS AND FACILITIES IN
VIRGINIA, AND ON THE EXCLUSIVELY RECOGNIZED UNIT OF THE INTERNATIONAL
BROTHERHOOD OF PAINTERS AND ALLIED TRADES, LOCAL 1997, AFL-CIO (IBPAT),
AT THE NATIONAL CAPITAL PARKS, A COMPONENT OF THE NPS WHICH CONSISTS OF
CERTAIN PARKS AND FACILITIES IN THE WASHINGTON, D.C., METROPOLITAN AREA.
THE NPS SOUGHT TO CLARIFY AND AMEND THE NFFE'S UNIT TO REFLECT THAT
SUCH UNIT NO LONGER ENCOMPASSED EMPLOYEES OF THE VIRGINIA STATE OFFICE
OR OF THE MANASSAS NATIONAL BATTLEFIELD PARK (MANASSAS PARK). FURTHER,
THE NPS SOUGHT AN ELECTION IN THE REMAINDER OF THE NFFE'S UNIT,
ASSERTING THAT IT HAD A GOOD FAITH DOUBT THAT THE NFFE CURRENTLY
REPRESENTED A MAJORITY OF THE EMPLOYEES IN SUCH UNIT. THEREAFTER, THE
NFFE FILED A "CU/AC" PETITION IN WHICH IT SOUGHT TO AMEND ITS
CERTIFICATION SO AS TO CHANGE THE DESIGNATION OF THE MANASSAS PARK TO
"NATIONAL CAPITAL PARKS, MANASSAS NATIONAL BATTLEFIELD PARK." THE
AMENDED CERTIFICATION SOUGHT BY THE NFFE ALSO WOULD DELETE ANY REFERENCE
TO THE VIRGINIA STATE OFFICE. THE IBPAT INTERVENED IN THE THESE
PROCEEDINGS ON THE BASIS THAT THE EMPLOYEES OF THE MANASSAS PARK HAD
ACCRETED TO ITS UNIT OF NATIONAL CAPITAL PARKS EMPLOYEES.
UNDER ALL OF THE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT
THE EMPLOYEES OF THE MANASSAS PARK HAVE BEEN SO THOROUGHLY COMBINED AND
INTEGRATED WITH THOSE OF THE NATIONAL CAPITAL PARKS THAT THEY HAVE
ACCRETED INTO THE UNIT OF EMPLOYEES CURRENTLY REPRESENTED BY THE IBPAT.
IN THIS REGARD, IT WAS NOTED PARTICULARLY THAT THE MISSION AND FUNCTIONS
OF THE MANASSAS PARK HAVE BEEN SUBSTANTIALLY AFFECTED BY THE SUBJECT
REORGANIZATION, AND THAT THE EMPLOYEES OF THE MANASSAS PARK ARE NOW
SUBJECT TO THE PERSONNEL POLICIES AND PRACTICES OF THE NATIONAL CAPITAL
PARKS. THUS, IT WAS NOTED THAT NUMEROUS EMPLOYEES HAVE BEEN TRANSFERRED
BETWEEN THE VARIOUS PARKS AND OFFICES OF THE NATIONAL CAPITAL PARKS
DURING THE PAST THREE YEARS AND THAT SUCH TRANSFERS ARE EXPECTED TO
CONTINUE. MOREOVER, THE EVIDENCE ESTABLISHED THAT THE CENTRAL OFFICE OF
THE NATIONAL CAPITAL PARKS COORDINATES AND DIRECTS MANY SPECIAL PROJECTS
WHICH RESULT IN TEMPORARY DETAILS OF EMPLOYEES FROM THE CENTRAL OFFICE
TO THE VARIOUS PARKS, THAT ANY OF THE PARKS OF THE NATIONAL CAPITAL
PARKS MAY BECOME INVOLVED IN SUCH PROJECTS FROM TIME TO TIME, AND THAT
SUCH PROJECTS ARE AN INTEGRAL PART OF THE URBAN ORIENTED MISSION OF THE
NATIONAL CAPITAL PARKS. THE RECORD REVEALED ALSO THAT THE EMPLOYEES OF
THE NATIONAL CAPITAL PARKS, INCLUDING THE MANASSAS PARK, SHARE COMMON
TRAINING, THE SAME AREAS OF CONSIDERATION FOR PROMOTIONS, TRANSFERS, AND
REDUCTIONS-IN-FORCE, AND ARE SUBJECT TO THE SAME PERSONNEL POLICIES AND
PRACTICES. ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE NFFE'S
"CU/AC" PETITION WHICH, IN EFFECT, SOUGHT TO RETAIN THE EMPLOYEES OF THE
MANASSAS PARK IN ITS EXCLUSIVELY RECOGNIZED UNIT, BE DISMISSED.
FURTHER, THE ASSISTANT SECRETARY ORDERED THAT THE NFFE'S CERTIFICATION
BE AMENDED AND CLARIFIED PURSUANT TO THE NPS'S AC PETITION TO EXCLUDE
EMPLOYEES OF THE MANASSAS PARK TO REFLECT THAT THE VIRGINIA STATE OFFICE
HAS BEEN ABOLISHED, AND TO REFLECT THAT THE MID-ATLANTIC REGIONAL OFFICE
OF THE NPS IS THE CURRENTLY DESIGNATED ACTIVITY WITH RESPECT TO THE
EMPLOYEES INCLUDED IN THE NFFE'S CERTIFIED UNIT.
THE ASSISTANT SECRETARY ALSO FOUND THAT THE NFFE WAS NOT "DEFUNCT" AT
THE TIME THE ACTIVITY'S PETITION WAS FILED IN THIS MATTER INASMUCH AS
THE EVIDENCE DID NOT ESTABLISH THAT THE NFFE WAS UNWILLING OR UNABLE TO
REPRESENT THE UNIT EMPLOYEES. THUS, THE RECORD REVEALED THAT THERE HAD
BEEN AT LEAST ONE OFFICER OF THE NFFE AT ALL TIMES SINCE ITS
CERTIFICATION, THAT THE NFFE NATIONAL OFFICE HAD TAKEN AFFIRMATIVE
ACTION TO REPRESENT UNIT EMPLOYEES, AND THAT THERE CURRENTLY ARE 58
MEMBERS OF THE NFFE ON DUES WITHHOLDING. AS THE NFFE IS NOT "DEFUNCT,"
AND AS THE RA PETITION FILED BY THE NPS WAS BASED ON AN ALLEGED GOOD
FAITH DOUBT AS TO THE MAJORITY STATUS OF THE NFFE IN THE EXISTING UNIT
(AS DISTINGUISHED FROM THE POSITION THAT THE REORGANIZATION HAD SO
SUBSTANTIALLY CHANGED THE CHARACTER AND SCOPE OF THE UNIT THAT IT WAS NO
LONGER APPROPRIATE, WHICH WAS NOT ALLEGED), THE ASSISTANT SECRETARY
ORDERED THAT THE RA PETITION BE DISMISSED INASMUCH AS IT HAD BEEN
UNTIMELY FILED UNDER SECTION 202.3(C)(1) OF THE ASSISTANT SECRETARY'S
REGULATIONS. THE ASSISTANT SECRETARY ALSO NOTED THAT, IN ANY CASE, THE
EVIDENCE WAS INSUFFICIENT TO ESTABLISH OBJECTIVE CONSIDERATIONS
NECESSARY TO SUPPORT A GOOD FAITH DOUBT BY THE ACTIVITY THAT THE NFFE NO
LONGER CONTINUED TO REPRESENT A MAJORITY OF THE EMPLOYEES IN THE
EXISTING UNIT.
NATIONAL PARK SERVICE /1/
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 800
AND
INTERNATIONAL BROTHERHOOD OF PAINTERS AND
ALLIED TRADES, LOCAL 1997, AFL-CIO
NATIONAL PARK SERVICE
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 800
AND
INTERNATIONAL BROTHERHOOD OF PAINTERS AND
ALLIED TRADES, LOCAL 1997, AFL-CIO
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER
MADELINE JACKSON. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE
FREE FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THE SUBJECT CASES, INCLUDING A BRIEF FILED
BY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 800, HEREIN
CALLED NFFE, THE ASSISTANT SECRETARY FINDS:
IN 1972 THE NFFE WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF
CERTAIN EMPLOYEES OF THE NATIONAL PARK SERVICE, HEREINAFTER CALLED NPS,
LOCATED IN THE STATE OF VIRGINIA. THE EMPLOYEES IN THE CERTIFIED UNIT
WERE LOCATED IN THE VIRGINIA STATE OFFICE, THE MANASSAS NATIONAL
BATTLEFIELD PARK, THE APPOMATTOX COURT HOUSE NATIONAL HISTORICAL PARK,
THE BOOKER T. WASHINGTON NATIONAL MONUMENT, THE FREDERICKSBURG NATIONAL
MILITARY PARK, THE GEORGE WASHINGTON BIRTHPLACE NATIONAL MONUMENT, THE
PETERSBURG NATIONAL BATTLEFIELD PARK, THE RICHMOND NATIONAL BATTLEFIELD
PARK, THE SHENANDOAH NATIONAL PARK, AND THE COLONIAL NATIONAL HISTORICAL
PARK. THE RECORD DISCLOSES THAT ON MARCH 3, 1974, PURSUANT TO A
REORGANIZATION, THE VIRGINIA STATE OFFICE WAS ABOLISHED, THE MANASSAS
NATIONAL BATTLEFIELD PARK (HEREINAFTER CALLED MANASSAS PARK) WAS
TRANSFERRED TO THE JURISDICTION OF THE NATIONAL CAPITAL PARKS, A
COMPONENT OF THE NPS, AND THE REMAINDER OF THE PARKS IN THE CERTIFIED
UNIT WERE TRANSFERRED TO THE JURISDICTION OF THE MID-ATLANTIC REGIONAL
OFFICE OF THE NPS.
THE NPS FILED THE SUBJECT "RA/AC" PETITION (CASE NO. 22-5755(RA)
(AC)) WHICH, IN EFFECT, SOUGHT A DETERMINATION BY THE ASSISTANT
SECRETARY WITH RESPECT TO THE IMPACT OF THE MARCH 3, 1974,
REORGANIZATION ON THE EXCLUSIVELY RECOGNIZED UNIT REPRESENTED BY THE
NFFE, AND ON A UNIT OF NATIONAL CAPITAL PARKS EMPLOYEES REPRESENTED
EXCLUSIVELY BY THE INTERNATIONAL BROTHERHOOD OF PAINTERS AND ALLIED
TRADES, LOCAL 1997, AFL-CIO, HEREIN CALLED IBPAT. /2/ IN EFFECT, THE
NPS SOUGHT TO CLARIFY AND AMEND THE NFFE'S UNIT TO REFLECT THAT SUCH
UNIT NO LONGER ENCOMPASSED EMPLOYEES OF THE VIRGINIA STATE OFFICE OR OF
THE MANASSAS PARK. FURTHER, THE NPS SOUGHT AN ELECTION IN THE REMAINDER
OF THE NFFE'S UNIT, ASSERTING THAT IT HAD A GOOD FAITH DOUBT THAT THE
NFFE CURRENTLY REPRESENTED A MAJORITY OF THE EMPLOYEES IN SUCH UNIT.
THEREAFTER, THE NFFE FILED THE SUBJECT "CU/AC" PETITION (CASE NO.
22-5796(CU)(AC)) IN WHICH IT SOUGHT TO AMEND ITS CERTIFICATION SO AS TO
CHANGE THE DESIGNATION OF THE MANASSAS PARK TO THE "NATIONAL CAPITAL
PARKS, MANASSAS NATIONAL BATTLEFIELD PARK." THE AMENDED CERTIFICATION
SOUGHT BY THE NFFE ALSO WOULD DELETE ANY REFERENCE TO THE VIRGINIA STATE
OFFICE. THE IBPAT INTERVENED IN THESE PROCEEDINGS ON THE BASIS THAT THE
EMPLOYEES OF THE MANASSAS PARK HAD ACCRETED TO ITS UNIT OF NATIONAL
CAPITAL PARKS EMPLOYEES.
THE NPS CONTENDS THAT THE EMPLOYEES OF THE MANASSAS PARK NO LONGER
SHARE A COMMUNITY OF INTEREST WITH THE OTHER EMPLOYEES CURRENTLY
REPRESENTED BY THE NFFE. IN THIS REGARD, THE NPS ARGUES THAT THE
MANAGEMENT, PERSONNEL PROGRAMS, AND MISSION OF THE NATIONAL CAPITAL
PARKS ARE DIFFERENT FROM THOSE OF THE MID-ATLANTIC REGIONAL OFFICE OF
THE NPS, WHICH, AS INDICATED ABOVE, CURRENTLY HAS AUTHORITY OVER ALL OF
THE AFOREMENTIONED PARKS EXCEPT THE MANASSAS PARK. THUS, THE NPS
ASSERTS THAT THE MARCH 3, 1974, REORGANIZATION RESULTED IN NEW AREAS OF
CONSIDERATION FOR PROMOTIONS, TRANSFERS, AND REDUCTIONS-IN-FORCE WITH
RESPECT TO THE EMPLOYEES OF THE MANASSAS PARK, THAT THE MISSION AND
FUNCTIONS OF THIS PARK HAVE CHANGED AND ARE CONTINUING TO UNDERGO
REVISIONS IN ORDER TO ACCOMMODATE THE URBAN EMPHASIS OF THE NATIONAL
CAPITAL PARKS, AND THAT THE IMPLEMENTATION OF THESE CHANGES, IN SOME
INSTANCES, ALREADY HAS AFFECTED THE MANASSAS PARK. ADDITIONALLY, THE
NPS TAKES THE POSITION THAT IT HAS A GOOD FAITH DOUBT THAT THE NFFE
CURRENTLY REPRESENTS A MAJORITY OF THE EMPLOYEES IN THE REMAINDER OF THE
EXCLUSIVELY RECOGNIZED UNIT REPRESENTED BY THE NFFE BASED ON AN ALLEGED
LACK OF REPRESENTATIONAL ACTIVITY BY THAT LABOR ORGANIZATION, AND THAT
THE NFFE IS "DEFUNCT." THE NFFE, ON THE OTHER HAND, CONTENDS THAT, WITH
RESPECT TO EMPLOYEES IN THE MANASSAS PARK, THE REORGANIZATION IN
QUESTION RESULTED ONLY IN THE ADMINISTRATIVE TRANSFER OF CERTAIN HIGHER
LEVEL MANAGEMENT FUNCTIONS FROM A REGIONAL AUTHORITY OF THE NPS TO THE
NATIONAL CAPITAL PARKS, AND THAT THIS TRANSFER HAS NOT RESULTED IN ANY
CHANGES WITH RESPECT TO THE IMMEDIATE SUPERVISION OR DUTIES OF THE
EMPLOYEES AT THE MANASSAS PARK. THUS, THE NFFE ASSERTS THAT THE
EMPLOYEES AT THE MANASSAS PARK HAVE NOT ACCRETED INTO THE IBPAT'S UNIT
OF NATIONAL CAPITAL PARKS EMPLOYEES, THAT A FINDING OF SUCH AN ACCRETION
WOULD DISRUPT A STABLE COLLECTIVE BARGAINING RELATIONSHIP, AND THAT IT
IS SPECULATIVE TO CONCLUDE THAT THE MANASSAS PARK ULTIMATELY WILL BE
EFFECTED BY THE REORGANIZATION. MOREOVER, WITH RESPECT TO THE DOUBT OF
MAJORITY STATUS RAISED BY THE NPS, THE NFFE CONTENDS THAT IT IS WILLING
AND ABLE TO REPRESENT THE EMPLOYEES IN ITS EXCLUSIVE UNIT, AND THAT THE
NPS DID NOT PRESENT SUFFICIENT GROUNDS TO SUPPORT A GOOD FAITH DOUBT AS
TO THE NFFE'S CONTINUED MAJORITY STATUS.
THE RECORD REVEALS THAT THE TRANSFER OF THE MANASSAS PARK TO THE
JURISDICTION OF THE NATIONAL CAPITAL PARKS, PURSUANT TO THE
REORGANIZATION OF MARCH 3, 1974, WAS PREDICATED UPON THE EXPANSION OF
THE WASHINGTON, D.C., METROPOLITAN AREA AND THE RESULTING INCREASE OF
URBAN VISITORS TO THE MANASSAS PARK, WHICH IS LOCATED APPROXIMATELY 35
MILES FROM WASHINGTON, D.C. THE NATIONAL CAPITAL PARKS CONSISTS OF A
NUMBER OF PARKS AND OTHER FACILITIES IN AND AROUND WASHINGTON, D.C. IT
WAS DETERMINED BY THE NPS THAT THE MANASSAS PARK SHOULD BE INCLUDED
WITHIN THE NATIONAL CAPITAL PARKS, WHICH ADMINISTERS A PROGRAM SUITED TO
THE RECREATIONAL NEEDS OF URBAN VISITORS AS WELL AS TO THE HISTORICAL
INTERESTS EMPHASIZED BY OTHER NPS PARKS. THE EVIDENCE ESTABLISHES THAT,
PRIOR TO THE REORGANIZATION, THE MANASSAS PARK AND THE OTHER
AFOREMENTIONED PARKS IN THE STATE OF VIRGINIA HAD BEEN UNDER THE
AUTHORITY OF THE VIRGINIA STATE OFFICE WHICH, IN TURN, HAS REPORTED TO
THE NORTHEAST REGIONAL OFFICE OF THE NPS. AS A RESULT OF THE
REORGANIZATION, THE PARKS PREVIOUSLY UNDER THE VIRGINIA STATE OFFICE
(OTHER THAN THE MANASSAS PARK) WERE TRANSFERRED TO THE JURISDICTION OF
THE MID-ATLANTIC REGIONAL OFFICE OF THE NPS. AT THE TIME THE SUBJECT
PETITIONS WERE FILED, THE NFFE'S UNIT CONSISTED OF APPROXIMATELY 310
EMPLOYEES, NINE OF WHOM WERE LOCATED AT THE MANASSAS PARK. OF THE NINE
EMPLOYEES AT THE MANASSAS PARK, THE MAJORITY WERE MAINTENANCE WORKERS OR
LABORERS WHO WERE ASSIGNED JANITORIAL DUTIES AND A VARIETY OF OTHER
DUTIES ASSOCIATED WITH THE MAINTENANCE OF THE PARK, SUCH AS CUTTING
GRASS, TRIMMING TREES, AND MENDING FENCES. IN ADDITION, CERTAIN OF THE
PARK EMPLOYEES WERE ENGAGED IN PROVIDING INFORMATIONAL SERVICES FOR
VISITORS, OR IN PERFORMING ADMINISTRATIVE TASKS SUCH AS TYPING.
WHILE THE RECORD REVEALS THAT THE BASIC DUTIES AND IMMEDIATE
SUPERVISION OF EMPLOYEES AT THE MANASSAS PARK HAVE NOT YET CHANGED AS A
RESULT OF THE REORGANIZATION, THE EVIDENCE ALSO ESTABLISHES THAT, AS A
RESULT OF THE REORGANIZATION, A NUMBER OF CHANGES WERE EFFECTUATED WITH
RESPECT TO THE EMPLOYEES AT THE MANASSAS PARK. IN THIS REGARD, ULTIMATE
SUPERVISORY RESPONSIBILITY FOR EMPLOYEES AT THE MANASSAS PARK NOW
RESIDES IN THE NATIONAL CAPITAL PARKS. FURTHER, THE PERSONNEL POLICIES
AND PRACTICES OF THE NATIONAL CAPITAL PARKS APPLY TO THE MANASSAS PARK.
THUS, THE WASHINGTON, D.C., METROPOLITAN AREA BECAME THE AREA OF
CONSIDERATION FOR REDUCTIONS-IN-FORCE INVOLVING EMPLOYEES OF THE
MANASSAS PARK, AND THE NATIONAL CAPITAL PARKS BECAME THE AREA OF
CONSIDERATION CONCERNING THE PROMOTION AND REASSIGNMENT OF THESE
EMPLOYEES. IN THIS LATTER REGARD, THE RECORD REVEALED THAT ONE EMPLOYEE
TRANSFERRED FROM THE GEORGE WASHINGTON MEMORIAL PARKWAY OF THE NATIONAL
CAPITAL PARKS TO THE MANASSAS PARK, THAT SOME 16 EMPLOYEES HAVE
TRANSFERRED BETWEEN VARIOUS PARKS AND OFFICES OF THE NATIONAL CAPITAL
PARKS WITHIN THE PAST THREE YEARS, AND THAT THIS PATTERN OF
REASSIGNMENTS IS EXPECTED TO CONTINUE THROUGHOUT THE NATIONAL CAPITAL
PARKS, INCLUDING THE MANASSAS PARK. MOREOVER, THE URBAN ORIENTED
MISSION OF THE NATIONAL CAPITAL PARKS HAS RESULTED IN NUMEROUS TEMPORARY
DETAILS OF EMPLOYEES BETWEEN THE CENTRAL OFFICE OF THE NATIONAL CAPITAL
PARKS AND ITS VARIOUS PARKS. THUS, SPECIAL EVENTS MAINTENANCE CREWS
HAVE BEEN ASSIGNED TEMPORARILY BY THE CENTRAL OFFICE TO THE ANTIETAM
NATIONAL BATTLEFIELD PARK FOR THE PURPOSE OF SETTING UP STAGES AND SOUND
SYSTEMS FOR PERFORMANCES BY THE NATIONAL SYMPHONY ORCHESTRA. FURTHER,
CENTRAL OFFICE PERSONNEL HAVE BEEN INVOLVED IN THE TRANSPORTATION AND
SUPERVISION OF CHILDREN'S GROUPS FROM WASHINGTON, D.C., WHO HAVE VISITED
VARIOUS PARKS OF THE NATIONAL CAPITAL PARKS LOCATED IN WASHINGTON, D.C.,
AND ITS ENVIRONS. IN THIS CONNECTION, THE NATIONAL CAPITAL PARKS HAS
ESTABLISHED AN ADMINISTRATIVE SUPPORT POSITION TO ASSIST IN COORDINATING
SUCH PROJECTS, AND A PERSONNEL MANAGEMENT EVALUATION HAS BEEN CONDUCTED
IN WHICH THE SUPERINTENDENTS OF THE VARIOUS PARKS, INCLUDING THE
MANASSAS PARK, HAVE OFFERED ADVICE ON THE CLASSIFICATION OF CERTAIN
SEASONAL EMPLOYEES. ALSO, THE NATIONAL CAPITAL PARKS CONDUCTS TRAINING
SESSIONS FOR ITS EMPLOYEES, INCLUDING THOSE AT THE MANASSAS PARK. /3/
UNDER ALL OF THESE CIRCUMSTANCES, I FIND THAT THE EMPLOYEES OF THE
MANASSAS PARK HAVE BEEN SO THOROUGHLY COMBINED AND INTEGRATED WITH THOSE
OF THE NATIONAL CAPITAL PARKS THAT THEY HAVE ACCRETED INTO THE UNIT OF
EMPLOYEES CURRENTLY REPRESENTED BY THE IBPAT. IN THIS REGARD, IT WAS
NOTED PARTICULARLY THAT THE MISSION AND FUNCTIONS OF THE MANASSAS PARK
HAVE BEEN SUBSTANTIALLY AFFECTED BY THE SUBJECT REORGANIZATION, AND THAT
THE EMPLOYEES OF THE MANASSAS PARK ARE NOW SUBJECT TO THE PERSONNEL
POLICIES AND PRACTICES OF THE NATIONAL CAPITAL PARKS. THUS, IT WAS
NOTED THAT NUMEROUS EMPLOYEES HAVE BEEN TRANSFERRED BETWEEN THE VARIOUS
PARKS AND OFFICES OF THE NATIONAL CAPITAL PARKS DURING THE PAST THREE
YEARS AND THAT SUCH TRANSFERS ARE EXPECTED TO CONTINUE. MOREOVER, THE
EVIDENCE ESTABLISHES THAT THE CENTRAL OFFICE OF THE NATIONAL CAPITAL
PARKS COORDINATES AND DIRECTS MANY SPECIAL PROJECTS WHICH RESULT IN
TEMPORARY DETAILS OF EMPLOYEES FROM THE CENTRAL OFFICE TO THE VARIOUS
PARKS, THAT ANY OF THE PARKS AND FACILITIES OF THE NATIONAL CAPITAL
PARKS MAY BECOME INVOLVED IN SUCH PROJECTS FROM TIME TO TIME, AND THAT
SUCH PROJECTS ARE AN INTEGRAL PART OF THE URBAN ORIENTED MISSION OF THE
NATIONAL CAPITAL PARKS. THE RECORD REVEALS ALSO THAT THE EMPLOYEES OF
THESE PARKS, INCLUDING THE MANASSAS PARK, SHARE COMMON TRAINING, THE
SAME AREAS OF CONSIDERATION FOR PROMOTIONS, TRANSFERS, AND
REDUCTIONS-IN-FORCE, AND ARE SUBJECT TO THE SAME PERSONNEL POLICIES AND
PRACTICES. IN THESE CIRCUMSTANCES, I SHALL ORDER THAT THE NFFE'S
"CU/AC" PETITION WHICH, IN EFFECT, SOUGHT TO RETAIN THE EMPLOYEES OF THE
MANASSAS PARK IN ITS EXCLUSIVELY RECOGNIZED UNIT, BE DISMISSED.
IN ADDITION, BASED ON THE FOREGOING CIRCUMSTANCES AND THE FACTS
DISCUSSED BELOW, I SHALL AMEND AND CLARIFY NFFE'S CERTIFICATION PURSUANT
TO THE NPS'S AC PETITION TO EXCLUDE EMPLOYEES OF THE MANASSAS PARK, TO
REFLECT THAT THE VIRGINIA STATE OFFICE HAS BEEN ABOLISHED, AND TO
REFLECT THAT THE MID-ATLANTIC REGIONAL OFFICE OF THE NPS IS THE
CURRENTLY DESIGNATED ACTIVITY WITH RESPECT TO THE EMPLOYEES INCLUDED IN
THE NFFE'S CERTIFIED UNIT.
AS NOTED ABOVE, THE NPS CONTENDS THAT THE NFFE IS "DEFUNCT." THE
RECORD REVEALS THAT THE VIRGINIA STATE OFFICE OF THE NPS AND THE NFFE
NEGOTIATED A ONE-YEAR AGREEMENT WHICH BECAME EFFECTIVE ON FEBRUARY 15,
1973, AND WHICH PROVIDED FOR AUTOMATIC RENEWAL THEREAFTER ON A YEARLY
BASIS UNLESS EITHER PARTY INDICATED A DESIRE TO RENEGOTIATE THE
AGREEMENT. SUBSEQUENTLY, THE PARTIES NEGOTIATED A SUPPLEMENTAL
AGREEMENT WHICH BECAME EFFECTIVE ON MARCH 12, 1973. ON JULY 15, 1974,
THE MID-ATLANTIC REGIONAL OFFICE OF THE NPS INFORMED THE NFFE'S NATIONAL
OFFICE THAT THE VIRGINIA PARKS OF THE NPS REPRESENTED BY THE NFFE HAD
BEEN PLACED UNDER THE AUTHORITY OF THE MID-ATLANTIC REGIONAL OFFICE, AND
LOCAL OFFICERS OF THE NFFE. IN THIS CONNECTION, THE RECORD REVEALS
THAT, ALTHOUGH THE NFFE LOCAL WAS WITHOUT A PRESIDENT AT THAT TIME, A
SECRETARY-TREASURER HELD OFFICE DURING THIS PERIOD AND THE NFFE'S
NATIONAL OFFICE HAD AGREED TO ASSUME THE NFFE'S REPRESENTATIONAL
FUNCTIONS UNTIL OTHER OFFICERS WERE ELECTED. IN THIS LATTER REGARD, THE
RECORD INDICATES THAT THE NFFE ASSISTED EMPLOYEES WHO HAD FILED
GRIEVANCES PURSUANT TO THE GRIEVANCE PROCEDURE OF THE AFOREMENTIONED
NEGOTIATED AGREEMENT, AND THAT IT HAD BEEN NECESSARY TO BRING SUCH
GRIEVANCES TO THE ATTENTION OF A SUPERINTENDENT OF ONE OF THE PARKS
INVOLVED HEREIN ON ONLY ONE OCCASION. THE EVIDENCE ALSO ESTABLISHES
THAT THE TELEPHONE NUMBER AND ADDRESS OF THE NFFE NATIONAL OFFICE WERE
KNOWN TO THE EMPLOYEES OF THE NFFE'S UNIT, AND THAT THEY HAD
OCCASIONALLY SOUGHT AND RECEIVED ASSISTANCE FROM THIS OFFICE. ALTHOUGH
THERE HAVE BEEN ONLY TWO UNIT-WIDE MEETINGS OF MEMBERS SINCE THE NFFE'S
CERTIFICATION, THE RECORD REVEALS THAT ATTENDANCE AT THESE MEETINGS HAD
BEEN POOR BECAUSE IT WAS DIFFICULT FOR MEMBERS TO TRAVEL THE DISTANCES
INVOLVED IN ORDER TO MEET AT A CENTRAL LOCATION, AND THAT, AS A RESULT,
MEMBERSHIP MEETINGS HAVE SINCE BEEN SCHEDULED AT THE PARK LEVEL. THE
EVIDENCE FURTHER ESTABLISHES THAT CURRENTLY THERE ARE 58 MEMBERS OF THE
NFFE ON DUES WITHHOLDING AND THAT 15 NEW MEMBERS RECENTLY WERE ADDED.
BASED ON THE FOREGOING, I FIND THAT THE NFFE WAS NOT "DEFUNCT" AT THE
TIME THE ACTIVITY'S PETITION WAS FILED IN THIS MATTER INASMUCH AS THE
EVIDENCE DOES NOT ESTABLISH THAT THE NFFE WAS UNWILLING OR UNABLE TO
REPRESENT THE UNIT EMPLOYEES. /4/ THUS, THE RECORD REVEALS THAT THERE
HAS BEEN AT LEAST ONE OFFICER OF THE NFFE AT ALL TIMES SINCE ITS
CERTIFICATION, THAT THE NFFE NATIONAL OFFICE HAS TAKEN AFFIRMATIVE
ACTION TO REPRESENT UNIT EMPLOYEES, AND THAT THERE CURRENTLY ARE 58
MEMBERS OF THE NFFE ON DUES WITHHOLDING. AS THE NFFE IS NOT "DEFUNCT,"
AND AS THE NPS'S RA PETITION IS BASED ON AN ALLEGED GOOD FAITH DOUBT AS
TO THE MAJORITY STATUS OF THE NFFE IN THE EXISTING UNIT (AS
DISTINGUISHED FROM THE POSITION THAT THE REORGANIZATION HAD SO
SUBSTANTIALLY CHANGED THE CHARACTER AND SCOPE OF THE NFFE'S UNIT THAT IT
WAS NO LONGER APPROPRIATE, WHICH WAS NOT ALLEGED), I SHALL ORDER THAT
THE SUBJECT RA PETITION BE DISMISSED INASMUCH AS IT WAS UNTIMELY FILED
UNDER SECTION 202.3(C)(1) OF THE ASSISTANT SECRETARY REGULATIONS. /5/
THUS, BASED UPON THE EXPIRATION DATE OF THE PARTIES' NEGOTIATED
AGREEMENT, THE SUBJECT RA PETITION COULD HAVE BEEN TIMELY FILED ONLY
BETWEEN NOVEMBER 16, 1794, AND DECEMBER 16, 1974. THE SUBJECT PETITION
WAS, IN FACT, FILED ON DECEMBER 30, 1974. /6/
IT IS HEREBY ORDERED THAT THE RA PETITION IN CASE NO. 22-5755, AND
THE CU AND AC PETITIONS IN CASE NO. 22-5796 BE, AND THEY HEREBY ARE,
DISMISSED.
IT IS FURTHER ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED IN CASE
NO. 22-5755, IN WHICH THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 800, WAS CERTIFIED IN 1972 AS THE EXCLUSIVE REPRESENTATIVE OF
CERTAIN EMPLOYEES OF THE NATIONAL PARK SERVICE IN VIRGINIA, BE, AND IT
HEREBY IS, CLARIFIED TO EXCLUDE FROM SAID UNIT THE EMPLOYEES OF THE
MANASSAS NATIONAL BATTLEFIELD PARK.
IT IS FURTHER ORDERED THAT THE CERTIFICATION OF REPRESENTATIVE
ACCORDED THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 800, IN
1972 FOR CERTAIN EMPLOYEES OF THE NATIONAL PARK SERVICE IN VIRGINIA, BE,
AND IT HEREBY IS, AMENDED BY DELETING ANY REFERENCE TO THE VIRGINIA
STATE OFFICE, AND BY INCLUDING THEREIN AS THE DESIGNATION OF THE
ACTIVITY, "NATIONAL PARK SERVICE, MID-ATLANTIC REGIONAL OFFICE."
DATED, WASHINGTON, D.C.
DECEMBER 10, 1975
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE IBPAT WAS CERTIFIED IN 1972 AS THE EXCLUSIVE REPRESENTATIVE
IN AN ACTIVITY-WIDE UNIT OF CERTAIN EMPLOYEES OF THE NATIONAL CAPITAL
PARKS.
/3/ THE RECORD REVEALS THAT THE EMPLOYEES OF THE MANASSAS PARK
ATTENDED TRAINING SESSIONS WITH OTHER EMPLOYEES OF THE NFFE'S UNIT PRIOR
TO THE REORGANIZATION AND THAT, SINCE THE REORGANIZATION, EMPLOYEES OF
THE MANASSAS PARK NO LONGER PARTICIPATE IN SUCH TRAINING SESSIONS.
/4/ SEE FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION, A/SLMR NO. 173. SEE ALSO U.S. NAVAL AIR STATION, NEW
ORLEANS, BELLE CHASSE, LOUISIANA, A/SLMR NO. 520.
/5/ SECTION 202.3(C)(1) OF THE ASSISTANT SECRETARY'S REGULATIONS
PROVIDES THAT: "WHEN AN AGREEMENT COVERING A CLAIMED UNIT HAS BEEN
SIGNED AND DATED BY THE ACTIVITY AND THE INCUMBENT EXCLUSIVE
REPRESENTATIVE, A PETITION FOR EXCLUSIVE RECOGNITION OR OTHER ELECTION
PETITION WILL BE CONSIDERED TIMELY WHEN FILED . . . NOT MORE THAN NINETY
(90) DAYS AND NOT LESS THAN SIXTY (60) DAYS PRIOR TO THE TERMINAL DATE
OF AN AGREEMENT HAVING A TERM OF THREE (3) YEARS OR LESS FROM THE DATE
IT WAS SIGNED AND DATED BY THE ACTIVITY AND THE INCUMBENT EXCLUSIVE
REPRESENTATIVE." SEE ALSO DENVER AIRWAY FACILITIES HUB SECTOR, FAA,
ROCKY MOUNTAIN REGION, DOT, AURORA, COLORADO, A/SLMR NO. 535.
/6/ EVEN ASSUMING THAT THE NPS'S RA PETITION WAS FILED TIMELY, I FIND
THAT THE EVIDENCE IS INSUFFICIENT TO ESTABLISH OBJECTIVE CONSIDERATIONS
NECESSARY TO SUPPORT A GOOD FAITH DOUBT BY THE ACTIVITY THAT THE NFFE NO
LONGER CONTINUES TO REPRESENT A MAJORITY OF THE EMPLOYEES IN THE
EXISTING UNIT. THUS, AS NOTED ABOVE, THE RECORD REVEALS THAT THE NFFE
HAS AND CONTINUES TO REPRESENT EMPLOYEES IN THE UNIT, AND THAT A
SIGNIFICANT NUMBER OF EMPLOYEES CONTINUE TO BE ON DUES WITHHOLDING.
5 A/SLMR 588; P. 725; CASE NOS. 41-3126(CA), 41-3128(CA),
41-3129(CA); NOVEMBER 26, 1975.
UNITED STATES DEPARTMENT OF THE NAVY,
NAVAL ORDNANCE STATION,
LOUISVILLE, KENTUCKY
A/SLMR NO. 588
THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL), ON OCTOBER 23, 1975,
ISSUED ITS DECISION ON APPEAL, FLRC NO. 74A-54, IN WHICH IT HELD,
CONTRARY TO THE ASSISTANT SECRETARY'S DECISION AND ORDER IN A/SLMR NO.
400, THAT: (1) SECTION 10(E) OF EXECUTIVE ORDER 11491, AS AMENDED, DOES
NOT IMPOSE UPON A LABOR ORGANIZATION HOLDING EXCLUSIVE RECOGNITION AN
OBLIGATION TO REPRESENT A BARGAINING UNIT EMPLOYEE IN AN ADVERSE ACTION
PROCEEDING UNTIL SUCH TIME AS THE EMPLOYEE INDICATES A DESIRE TO CHOOSE
HIS OWN REPRESENTATIVE; AND (2) AN AGENCY'S FAILURE TO RECOGNIZE A
LABOR ORGANIZATION'S STATUS AS AN EMPLOYEE'S REPRESENTATIVE IN AN
ADVERSE ACTION PROCEEDING, UNTIL THE EMPLOYEE DESIGNATES ANOTHER
REPRESENTATIVE, DOES NOT CONSTITUTE AN UNFAIR LABOR PRACTICE.
ACCORDINGLY, PURSUANT TO SECTION 2411.18(B) AND (C) OF ITS RULES, THE
COUNCIL SET ASIDE THE PERTINENT PORTIONS OF THE ASSISTANT SECRETARY'S
DECISION AND ORDER IN A/SLMR NO. 400 AND REMANDED THE CASE TO HIM FOR
APPROPRIATE ACTION CONSISTENT WITH ITS DECISION.
BASED ON THE COUNCIL'S HOLDING IN FLRC NO. 74A-54, AND THE RATIONALE
CONTAINED THEREIN, THE ASSISTANT SECRETARY ORDERED THAT THE PERTINENT
PORTION OF THE COMPLAINT BE DISMISSED.
UNITED STATES DEPARTMENT OF THE NAVY,
NAVAL ORDNANCE STATION,
LOUISVILLE, KENTUCKY
AND
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS,
LOCAL LODGE 830, AFL-CIO
ON DECEMBER 11, 1974, THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL)
ISSUED A DECISION ACCEPTING THE RESPONDENT'S PETITION FOR REVIEW AND
STAYING CERTAIN PARAGRAPHS OF THE ASSISTANT SECRETARY'S REMEDIAL ORDER
IN A/SLMR NO. 400. AS TO THOSE PORTIONS OF THE ORDER IN A/SLMR NO. 400
WHICH WERE NOT STAYED BY THE COUNCIL, THE ASSISTANT SECRETARY, IN A
SUPPLEMENTAL DECISION AND ORDER DATED DECEMBER 30, 1974, /1/ ORDERED
THAT THE RESPONDENT COMPLY WITH HIS ORDER. IN THIS REGARD, HE REQUIRED
AMONG OTHER THINGS, THAT A NOTICE TO ALL EMPLOYEES BE POSTED IN
ACCORDANCE WITH A/SLMR NO. 400, AS MODIFIED BY THE COUNCIL'S DECISION.
ON OCTOBER 23, 1975, THE COUNCIL ISSUED ITS DECISION ON APPEAL IN THE
SUBJECT CASE FINDING, CONTRARY TO THE ASSISTANT SECRETARY, THAT: (1)
SECTION 10(E) OF THE ORDER DOES NOT IMPOSE UPON A LABOR ORGANIZATION
HOLDING EXCLUSIVE RECOGNITION AN OBLIGATION TO REPRESENT A BARGAINING
UNIT EMPLOYEE IN AN ADVERSE ACTION PROCEEDING UNTIL SUCH TIME AS THE
EMPLOYEE INDICATES A DESIRE TO CHOOSE HIS OWN REPRESENTATIVE: AND (2)
AN AGENCY'S FAILURE TO RECOGNIZE A LABOR ORGANIZATION'S STATUS AS AN
EMPLOYEE'S REPRESENTATIVE IN AN ADVERSE ACTION PROCEEDING, UNTIL THE
EMPLOYEE DESIGNATES ANOTHER REPRESENTATIVE, DOES NOT CONSTITUTE AN
UNFAIR LABOR PRACTICE. ACCORDINGLY, PURSUANT TO SECTION 2411.18(B) AND
(C) OF ITS RULES, THE COUNCIL SET ASIDE THE PERTINENT PORTIONS OF THE
ASSISTANT SECRETARY'S DECISION AND ORDER IN A/SLMR NO. 400 AND REMANDED
THE CASE TO HIM FOR APPROPRIATE ACTION CONSISTENT WITH ITS DECISION.
BASED ON THE COUNCIL'S HOLDING IN THE INSTANT CASE, AND THE RATIONALE
CONTAINED THEREIN, I SHALL ORDER THAT PARAGRAPHS 1.C. AND 2.C. OF THE
REMEDIAL ORDER IN A/SLMR NO. 400 BE RESCINDED AND THAT PARAGRAPH 2.D. OF
THE ORDER BE RESCINDED TO THE EXTENT THAT IT REQUIRES THE RESPONDENT TO
POST A NOTICE REFLECTING THE REQUIREMENTS OF PARAGRAPHS 1.C. AND 2.C. OF
THE ORDER.
IT IS HEREBY ORDERED, CONSISTENT WITH THE FOREGOING, THAT THE
PERTINENT PORTION OF THE COMPLAINT IN CASE NO. 41-3129(CA) BE, AND IT
HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
NOVEMBER 26, 1975
/1/ A/SLMR NO. 471.
UNITED STATES DEPARTMENT OF THE NAVY,
NAVAL ORDNANCE STATION,
LOUISVILLE, KENTUCKY
AND
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS
AFL-CIO, LOCAL LODGE 830
THIS APPEAL AROSE FROM A DECISION AND ORDER OF THE ASSISTANT
SECRETARY WHO FOUND, AMONG OTHER THINGS, THAT THE NAVAL ORDANCE STATION,
LOUISVILLE, KENTUCKY (THE ACTIVITY) WAS IN VIOLATION OF SECTION 19(A)(1)
AND (6) OF THE ORDER BY FAILING TO RECOGNIZE LOCAL LODGE 830,
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS (THE
UNION) AS THE REPRESENTATIVE OF A UNIT EMPLOYEE WHO WAS INVOLVED IN AN
ADVERSE ACTION PROCEEDING.
THE RELEVANT FACTS, AS FOUND BY THE ADMINISTRATIVE LAW JUDGE (ALJ)
AND ADOPTED BY THE ASSISTANT SECRETARY, ARE AS FOLLOWS: THE ACTIVITY
SERVED UPON AN EMPLOYEE WHO WAS A MEMBER OF THE UNION'S EXCLUSIVE
BARGAINING UNIT A NOTICE OF PROPOSED REMOVAL, WHICH PROVIDED, IN
PERTINENT PART, THAT:
YOU MAY REPLY TO THIS NOTICE PERSONALLY OR IN WRITING, OR BOTH . . .
YOU WILL BE ALLOWED
TEN (10) CALENDAR DAYS FROM RECEIPT OF THIS NOTICE TO REPLY . . .
CONSIDERATION WILL BE GIVEN
TO EXTENDING THIS PERIOD IF YOU SUBMIT A REQUEST STATING YOUR REASONS
FOR NEEDING MORE
TIME. IF YOU REPLY PERSONALLY, YOU MAY BE ACCOMPANIED BY ANY ONE
PERSON OF YOUR CHOICE WHO IS
WILLING TO REPRESENT YOU . . .
NEAR THE END OF THE PERIOD PROVIDED FOR RESPONSE IN THE NOTICE, THE
EMPLOYEE BECAME ILL AND WAS HOSPITALIZED. UPON HEARING OF THE
EMPLOYEE'S CONDITION, THE UNION'S CHIEF STEWARD, PURPORTING TO ACT FOR
THE EMPLOYEE, SOUGHT AN EXTENSION OF THE TIME LIMIT SPECIFIED FOR REPLY
TO THE NOTICE OF PROPOSED REMOVAL. THE REQUEST WAS DENIED BY THE
ACTIVITY ON THE GROUND THAT THE EMPLOYEE INVOLVED HAD NOT DESIGNATED THE
CHIEF STEWARD AS HIS REPRESENTATIVE AS REQUIRED BY THE NOTICE OF
PROPOSED REMOVAL AND BY PERTINENT NAVY REGULATIONS. /1/ AFTER
EXPIRATION OF THE ORIGINALLY SPECIFIED NOTICE PERIOD, THE ACTIVITY
ADVISED THE EMPLOYEE OF ITS DECISION TO REMOVE HIM. THE EMPLOYEE
SUBSEQUENTLY APPEALED THE DECISION TO REMOVE HIM TO THE CIVIL SERVICE
COMMISSION UNDER THE APPROPRIATE ADVERSE ACTION APPEALS PROCEDURES, AND
THE ACTIVITY'S ACTION WAS SUSTAINED BY BOTH THE COMMISSION'S ATLANTA
REGIONAL OFFICE AND THE BOARD OF APPEALS AND REVIEW. DURING THE
PENDENCY OF THE PROCEEDINGS BEFORE THE CIVIL SERVICE COMMISSION, THE
UNION INITIATED THE UNFAIR LABOR PRACTICE PROCEEDINGS WHICH ARE THE
SUBJECT OF THIS APPEAL.
IN DECIDING THAT THE ACTIVITY HAD VIOLATED SECTION 19(A)(1) AND (6)
OF THE ORDER, /2/ THE ASSISTANT SECRETARY FOUND, IN PERTINENT PART:
SECTION 10(E) OF THE ORDER CLEARLY IMPOSES UPON EXCLUSIVE
REPRESENTATIVES AN AFFIRMATIVE
OBLIGATION TO REPRESENT THE INTERESTS OF ALL UNIT EMPLOYEES. UNDER
THE PARTICULAR
CIRCUMSTANCES OF THIS CASE, INVOLVING A UNIT EMPLOYEE WHO IS SUBJECT
TO AN ADVERSE ACTION
PROCEEDING, I FIND THAT THE COMPLAINANT (THE EMPLOYEE'S EXCLUSIVE
REPRESENTATIVE) HAD AN
ONGOING OBLIGATION UNDER SECTION 10(E) OF THE ORDER TO REPRESENT THE
INTERESTS OF THE EMPLOYEE
UNTIL SUCH TIME AS HE INDICATED HIS DESIRE TO CHOOSE HIS
OWN REPRESENTATIVE PURSUANT TO SECTION 7(D)(1) OF THE ORDER.
HE FURTHER FOUND THAT:
. . . THE RESPONDENT'S FAILURE TO RECOGNIZE THE COMPLAINANT AS THE
REPRESENTATIVE OF THE
UNIT EMPLOYEE INVOLVED IN THE ADVERSE ACTION PROCEEDING WAS IN
DEROGATION OF THE COMPLAINANT'S
EXCLUSIVE REPRESENTATIVE STATUS AND, THEREBY VIOLATED SECTION
19(A)(6) OF THE
ORDER. MOREOVER, IN MY VIEW, SUCH CONDUCT HAD A CONCOMITANT COERCIVE
EFFECT UPON THE RIGHTS
OF UNIT EMPLOYEES ASSURED BY THE ORDER IN VIOLATION OF SECTION
19(A)(1) OF THE ORDER.
THE COUNCIL, IN RESPONSE TO THE AGENCY'S PETITION FOR REVIEW, GRANTED
A STAY OF PERTINENT PORTIONS OF THE ASSISTANT SECRETARY'S DECISION AND
ORDER AND ACCEPTED THE CASE FOR REVIEW ON TWO MAJOR POLICY ISSUES AS SET
FORTH BELOW. THE AGENCY CHOSE TO STAND ON THE VIEWS SET FORTH IN ITS
PETITION FOR REVIEW. THE UNION FILED A BRIEF ON THE MERITS.
THE TWO MAJOR POLICY ISSUES PRESENTED IN THIS CASE ARE AS FOLLOWS:
1. WHETHER SECTION 10(E) OF THE ORDER IMPOSES UPON A LABOR
ORGANIZATION HOLDING EXCLUSIVE
RECOGNITION AN OBLIGATION TO REPRESENT A BARGAINING UNIT EMPLOYEE IN
AN ADVERSE ACTION
PROCEEDING UNTIL SUCH TIME AS THE EMPLOYEE INDICATES A DESIRE TO
CHOOSE HIS OWN
REPRESENTATIVE.
2. WHETHER AN AGENCY'S FAILURE TO RECOGNIZE A LABOR ORGANIZATION'S
STATUS AS AN EMPLOYEE'S
REPRESENTATIVE IN AN ADVERSE ACTION PROCEEDING, UNTIL THE EMPLOYEE
ELECTS TO CHOOSE A
DIFFERENT REPRESENTATIVE, CONSTITUTES AN UNFAIR LABOR PRACTICE UNDER
THE ORDER.
EACH OF THESE ISSUES WILL BE CONSIDERED SEPARATELY BELOW.
ISSUE 1 THE ASSISTANT SECRETARY FOUND THAT SECTION 10(E) OF THE ORDER
"CLEARLY IMPOSES UPON EXCLUSIVE REPRESENTATIVES AN AFFIRMATIVE
OBLIGATION TO REPRESENT THE INTERESTS OF ALL UNIT EMPLOYEES" AND HENCE,
IMPOSES UPON THE UNION IN THE CIRCUMSTANCES OF THIS CASE "AN ONGOING
OBLIGATION UNDER SECTION 10(E) OF THE ORDER TO REPRESENT THE INTERESTS
OF THE EMPLOYEE UNTIL SUCH TIME AS HE INDICATED HIS DESIRE TO CHOOSE HIS
OWN REPRESENTATIVE PURSUANT TO SECTION 7(D)(1) OF THE ORDER."
IN SO FINDING, THE ASSISTANT SECRETARY CITED, WITH EMPHASIS, CERTAIN
PORTIONS OF SECTION 10(E) OF THE ORDER, AS FOLLOWS:
WHEN A LABOR ORGANIZATION HAS BEEN ACCORDED EXCLUSIVE RECOGNITION, IT
IS THE EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES IN THE UNIT AND IS ENTITLED TO ACT FOR
AND TO NEGOTIATE AGREEMENTS
COVERING ALL EMPLOYEES IN THE UNIT. IT IS RESPONSIBLE FOR
REPRESENTING THE INTERESTS OF ALL
EMPLOYEES IN THE UNIT WITHOUT DISCRIMINATION AND WITHOUT REGARD TO
LABOR ORGANIZATION
MEMBERSHIP . . .
THE COUNCIL HAS CONCLUDED THAT THIS RELIANCE UPON THE FIRST AND
SECOND SENTENCES OF SECTION 10(E) IS MISPLACED AND CONSTITUTES A
MISINTERPRETATION OF SECTION 10(E). THE FIRST SENTENCE OF SECTION 10(E)
IS A STATEMENT OF CERTAIN RIGHTS OF REPRESENTATION WHICH MUST BE
ACCORDED A LABOR ORGANIZATION WHICH HAS ACQUIRED EXCLUSIVE RECOGNITION
IN A BARGAINING UNIT. THAT IS THE FIRST SENTENCE PROVIDES THAT AN
EXCLUSIVE REPRESENTATIVE IS ENTITLED TO ACT FOR AND TO NEGOTIATE
AGREEMENTS COVERING ALL EMPLOYEES IN THE UNIT. THE SECOND SENTENCE
IMPOSES CERTAIN OBLIGATIONS UPON A LABOR ORGANIZATION WHEN IT ACQUIRES
THE RIGHTS OF AN EXCLUSIVE REPRESENTATIVE. THAT IS: "IT (THE EXCLUSIVE
REPRESENTATIVE) IS RESPONSIBLE FOR REPRESENTING THE INTERESTS OF ALL
EMPLOYEES IN THE UNIT WITHOUT DISCRIMINATION AND WITHOUT REGARD TO LABOR
ORGANIZATION MEMBERSHIP." IN RELYING UPON ONLY THAT PORTION OF THE
SECOND SENTENCE WHICH IS NOT UNDERSCORED HERE, THE ASSISTANT SECRETARY
ERRONEOUSLY FOUND AN OBLIGATION IMPOSED ON THE EXCLUSIVE REPRESENTATIVE
BEYOND THAT WHICH WAS INTENDED BY THE ORDER. TAKEN AS A WHOLE, THIS
SECOND SENTENCE DOES NOT OBLIGATE THE EXCLUSIVE BARGAINING AGENT TO
REPRESENT THE INTERESTS OF UNIT EMPLOYEES IN ALL CIRCUMSTANCES. RATHER,
AS MAY BE SEEN FROM THAT PART OF THE SECOND SENTENCE WHICH WE HAVE
UNDERSCORED, THE EXCLUSIVE REPRESENTATIVE IS ENJOINED TO ACT WITHOUT
DISCRIMINATION AND WITHOUT REGARD TO UNION MEMBERSHIP WHEN REPRESENTING
OR NEGOTIATING AN AGREEMENT ON BEHALF OF UNIT EMPLOYEES WITHIN THE SCOPE
OF ITS AUTHORITY UNDER THE ORDER. IN SUMMARY, THE SECOND SENTENCE OF
SECTION 10(E) DOES NOT IMPOSE AN AFFIRMATIVE DUTY ON THE EXCLUSIVE
REPRESENTATIVE TO ACT FOR UNIT EMPLOYEES WHENEVER IT IS EMPOWERED TO DO
SO UNDER THE ORDER, BUT ONLY PRESCRIBES THE MANNER IN WHICH THE
EXCLUSIVE REPRESENTATIVE MUST PROVIDE ITS SERVICES TO UNIT EMPLOYEES
WHEN ACTING WITHIN ITS SCOPE OF AUTHORITY ESTABLISHED BY OTHER
PROVISIONS OF THE ORDER.
IN CONCLUSION, WITH RESPECT TO THE FIRST ISSUE RAISED, SECTION 10(E)
OF THE ORDER DOES NOT IMPOSE UPON A LABOR ORGANIZATION HOLDING EXCLUSIVE
RECOGNITION AN OBLIGATION TO REPRESENT A BARGAINING UNIT EMPLOYEE IN AN
ADVERSE ACTION PROCEEDING UNTIL SUCH TIME AS THE EMPLOYEE INDICATES A
DESIRE TO CHOOSE HIS OWN REPRESENTATIVE. /3/
ISSUE 2. WE HAVE CONCLUDED ABOVE THAT AN EXCLUSIVE REPRESENTATIVE
HAS NO OBLIGATION UNDER THE ORDER TO REPRESENT UNIT EMPLOYEES IN AN
ADVERSE ACTION PROCEEDING. HOWEVER, WE ALSO NOTED THAT THE FIRST
SENTENCE OF SECTION 10(E) ACCORDS SUCH EXCLUSIVE REPRESENTATIVE THE
RIGHT TO ACT FOR AND TO NEGOTIATE AGREEMENTS COVERING ALL EMPLOYEES IN
THE UNIT. WE NEXT CONSIDER WHETHER THOSE RIGHTS MAY EXTEND TO THE
REPRESENTATION OF AN INDIVIDUAL BARGAINING UNIT EMPLOYEE IN AN ADVERSE
ACTION PROCEEDING, AND IF SO, WHETHER THE UNION HAD SUCH RIGHTS IN THE
CIRCUMSTANCES OF THIS CASE. ONLY IF WE ARE ABLE TO ANSWER BOTH
QUESTIONS IN E AFFIRMATIVE MAY WE CONCLUDE THAT AN AGENCY'S FAILURE TO
RECOGNIZE A LABOR ORGANIZATION'S STATUS AS AN EMPLOYEE'S REPRESENTATIVE
IN AN ADVERSE ACTION PROCEEDING, UNTIL THE EMPLOYEE ELECTS TO CHOOSE A
DIFFERENT REPRESENTATIVE, CONSTITUTES AN UNFAIR LABOR PRACTICE UNDER THE
ORDER AND, HENCE, SUSTAIN THE ASSISTANT SECRETARY'S FINDING THAT THE
AGENCY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER.
CLEARLY, THE EXPRESS LANGUAGE OF THE FIRST SENTENCE OF SECTION 10(E)
ACCORDS THE EXCLUSIVE REPRESENTATIVE THE RIGHT TO NEGOTIATE AN AGREEMENT
COVERING ALL UNIT EMPLOYEES, WHICH RIGHT TO NEGOTIATE MAY NOT BE
PRECONDITIONED UPON THE DESIRES OF ANY INDIVIDUAL MEMBER OF THE
BARGAINING UNIT. BY NEGOTIATING SUCH AN AGREEMENT, THE EXCLUSIVE
REPRESENTATIVE IS EXERCISING ITS RIGHT "TO ACT FOR . . . ALL EMPLOYEES
IN THE UNIT." SIMILARLY, AN EXCLUSIVE REPRESENTATIVE, IN THE
ADMINISTRATION OF A NEGOTIATED AGREEMENT, MUST BE ABLE TO ACT FOR ALL
UNIT EMPLOYEES WHERE NECESSARY TO PRESERVE AND EFFECTUATE RIGHTS SECURED
FOR ALL UNIT EMPLOYEES THROUGH THE COLLECTIVE BARGAINING PROCESS. IN
SHORT, WHENEVER AN EXCLUSIVE REPRESENTATIVE IS REPRESENTING ALL UNIT
EMPLOYEES WITHIN THE SCOPE OF ITS AUTHORITY UNDER THE AGREEMENT AND/OR
THE ORDER, ITS RIGHTS TO ACT FOR SUCH UNIT EMPLOYEES IS NOT CONTINGENT
UPON THE PRIOR DESIGNATION OF ONE OR MORE INDIVIDUAL EMPLOYEES IN THE
UNIT.
IN OUR OPINION, THE FIRST SENTENCE OF SECTION 10(E) WHICH EMPOWERS AN
EXCLUSIVE REPRESENTATIVE TO ACT FOR ALL UNIT EMPLOYEES AS NOTED ABOVE
ALSO AUTHORIZES IT TO ACT FOR OR ON BEHALF OF AN INDIVIDUAL UNIT
EMPLOYEE. HOWEVER, AS WE INTERPRET THE FIRST SENTENCE OF SECTION 10(E),
THE EXCLUSIVE REPRESENTATIVE'S RIGHT TO ACT FOR OR REPRESENT AN
INDIVIDUAL UNIT EMPLOYEE, AS DISTINGUISHED FROM ITS RIGHT TO ACT FOR ALL
UNIT EMPLOYEES, IS NOT WITHOUT LIMITATION. THAT IS, WHILE A LABOR
ORGANIZATION MAY ON ITS OWN INITIATIVE ACT ON BEHALF OF A UNIT EMPLOYEE
PURSUANT TO ITS AUTHORITY UNDER CONTRACT OR THE ORDER, SUCH A RIGHT IS
NOT INHERENT WHERE, AS HERE, IT CONCERNS AN EMPLOYEE'S ADVERSE ACTION
PROCEEDING, WHICH IS A PROCEDURE ESTABLISHED PURSUANT TO LAW AND
REGULATION RATHER THAN BY AGREEMENT OR THE ORDER. SUCH MATTERS, WHICH
ARE FUNDAMENTALLY PERSONAL TO THE INDIVIDUAL AND ONLY REMOTELY RELATED
TO THE RIGHTS OF THE OTHER UNIT EMPLOYEES, ARE NOT AUTOMATICALLY WITHIN
THE SCOPE OF THE EXCLUSIVE REPRESENTATIVE'S 10(E) RIGHTS, WHICH ARE
PROTECTED BY THE ORDER. THIS IS NOT TO SAY, HOWEVER, THAT A RIGHT COULD
NOT BE ACCORDED TO THE EXCLUSIVE REPRESENTATIVE TO ACT ON BEHALF OF
INDIVIDUAL UNIT EMPLOYEES. CERTAINLY THE PARTIES TO AN EXCLUSIVE
RELATIONSHIP COULD NEGOTIATE RIGHTS TO BE ACCORDED THE EXCLUSIVE
REPRESENTATIVE RELATED TO INDIVIDUAL EMPLOYEE ADVERSE ACTIONS SO LONG AS
THEY WERE OTHERWISE CONSISTENT WITH APPLICABLE LAW AND REGULATIONS.
HOWEVER, IT SHOULD BE NOTED HERE THAT THE PARTIES, IN NEGOTIATING THE
AGREEMENT WHICH WAS EFFECTIVE WHEN THE EVENTS INVOLVED HEREIN AROSE HAD
PROVIDED ONLY THAT "THE EMPLOYEE MAY BE REPRESENTED BY HIS UNION
REPRESENTATIVE OR ANY PERSON OF HIS CHOICE WHO IS WILLING TO REPRESENT
HIM .. . ." /4/ THUS, IT WAS RECOGNIZED THAT BEFORE THE EXCLUSIVE
REPRESENTATIVE HAD THE RIGHT TO ACT FOR THE INDIVIDUAL, THERE HAD TO BE
A PRIOR CHOICE BY THE EMPLOYEE TO THAT EFFECT.
IN THE INSTANT CASE THE UNION HAD NO CONTRACTUAL RIGHT TO ACT UPON
ITS OWN INITIATIVE AND ATTEMPT TO SERVE AS THE EMPLOYEE'S REPRESENTATIVE
IN AN ADVERSE ACTION PROCEEDING. /5/ MOREOVER, AS FOUND BY THE
ASSISTANT SECRETARY, THE INDIVIDUAL EMPLOYEE HAD NOT SELECTED THE UNION
AS HIS REPRESENTATIVE AND SO ADVISED AGENCY MANAGEMENT.
THEREFORE, WITH RESPECT TO THE SECOND ISSUE RAISED, THE AGENCY'S
FAILURE TO RECOGNIZE THE LABOR ORGANIZATION'S STATUS AS AN EMPLOYEE'S
REPRESENTATIVE IN AN ADVERSE ACTION PROCEEDING, DID NOT CONSTITUTE AN
UNFAIR LABOR PRACTICE UNDER THE ORDER. /6/
IN SUMMARY, FOR THE REASONS DISCUSSED ABOVE, THE COUNCIL'S
CONCLUSIONS ARE:
1. SECTION 10(E) DOES NOT IMPOSE UPON A LABOR ORGANIZATION HOLDING
EXCLUSIVE RECOGNITION
AN OBLIGATION TO REPRESENT A BARGAINING UNIT EMPLOYEE IN AN ADVERSE
ACTION PROCEEDING UNTIL
SUCH TIME AS THE EMPLOYEE INDICATES A DESIRE TO CHOOSE HIS
REPRESENTATIVE.
2. AN AGENCY'S FAILURE TO RECOGNIZE A LABOR ORGANIZATION'S STATUS AS
AN EMPLOYEE'S
REPRESENTATIVE IN AN ADVERSE ACTION PROCEEDING, UNTIL THE EMPLOYEE
DESIGNATES ANOTHER
REPRESENTATIVE, DOES NOT CONSTITUTE AN UNFAIR LABOR PRACTICE.
THEREFORE, PURSUANT TO SECTION 2411.18(B) OF THE COUNCIL'S RULES OF
PROCEDURE, WE SET ASIDE THE ASSISTANT SECRETARY'S FINDING THAT THE
UNITED STATES DEPARTMENT OF THE NAVY, NAVAL ORDNANCE STATION,
LOUISVILLE, KENTUCKY, VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY
REFUSING TO ALLOW THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, LOCAL LODGE 830, AFL-CIO, THE COMPLAINANT, TO
REPRESENT THE INTERESTS OF AN EMPLOYEE IN THE BARGAINING UNIT IN AN
ADVERSE ACTION PROCEEDING UNTIL THE EMPLOYEE HAS CHOSEN A
REPRESENTATIVE.
PURSUANT TO SECTION 2411.18(C) OF THE COUNCIL'S RULES OF PROCEDURE,
WE HEREBY REMAND THIS MATTER TO THE ASSISTANT SECRETARY FOR APPROPRIATE
ACTION CONSISTENT WITH THIS DECISION.
BY THE COUNCIL.
ISSUED: OCTOBER 23, 1975
/1/ THE NAVY REGULATION, CMMI 752, PARAGRAPH 2-5(B)(3) PROVIDES THAT
". . . IN MAKING AN ORAL REPLY, AN EMPLOYEE MAY ELECT TO BE ACCOMPANIED
BY A REPRESENTATIVE. SINCE THE OPPORTUNITY FOR A HEARING IS ACCORDED
ONLY IN THE APPELLATE PROCESS UNDER NAVY PROCEDURE, A FORMAL HEARING
WILL NOT BE HELD." IT IS ALSO APPARENTLY NAVY POLICY (ACCORDING TO THE
AGENCY'S PETITION FOR REVIEW) TO EXTEND THE RIGHT OF REPRESENTATION TO
EMPLOYEES WISHING TO MAKE A WRITTEN RESPONSE TO THE NOTICE OF PROPOSED
ADVERSE ACTION.
FURTHER, ARTICLE 14 (ADVERSE ACTIONS AND DISCIPLINARY ACTIONS) OF THE
NEGOTIATED AGREEMENT BETWEEN THE PARTIES PROVIDES, IN RELEVANT PART:
SECTION 2. WHEN THE EMPLOYER CONTEMPLATES DISCIPLINARY OR ADVERSE
ACTION AGAINST AN
EMPLOYEE, THE EMPLOYEE WILL BE NOTIFIED, IN WRITING, OF THE PROPOSED
ACTION AND THE REASONS
THEREFOR. SUCH ACTIONS MUST BE FOR JUST CAUSE AND THE EMPLOYEE SHALL
HAVE THE OPPORTUNITY TO
REPLY TO THE CHARGES, PERSONALLY AND/OR IN WRITING, TO THE
APPROPRIATE MANAGEMENT
OFFICIAL. IN MAKING HIS REPLY, THE EMPLOYEE MAY BE REPRESENTED BY
HIS UNION REPRESENTATIVE OR
ANY PERSON OF HIS CHOICE WHO IS WILLING TO REPRESENT HIM . . .
SECTION 3. WHEN A NOTICE OF DECISION TO EFFECT A DISCIPLINARY OR
ADVERSE ACTION IS ISSUED
TO THE EMPLOYEE, AND THE EMPLOYEE APPEALS THE ACTION, BUT DOES NOT
SELECT A UNION
REPRESENTATIVE, THE UNION SHALL HAVE THE RIGHT TO HAVE AN OBSERVER
PRESENT AT THE HEARING AND
TO MAKE THE VIEWS OF THE UNION KNOWN UNDER THE CONDITIONS SET FORTH
IN APPLICABLE REGULATIONS.
/2/ SEC. 19. UNFAIR LABOR PRACTICES. (A) AGENCY MANAGEMENT SHALL
NOT--
(1) INTERFERE WITH, RESTRAIN OR COERCE AN EMPLOYEE IN THE EXERCISE OF
(6) REFUSE TO CONSULT, CONFER, OR NEGOTIATE WITH A LABOR ORGANIZATION
AS REQUIRED BY THIS
ORDER.
/3/ HAVING DETERMINED THAT SECTION 10(E) OF THE ORDER DOES NOT IMPOSE
UPON AN EXCLUSIVE REPRESENTATIVE AN OBLIGATION TO REPRESENT UNIT
EMPLOYEES IN AN ADVERSE ACTION PROCEEDING, IT IS UNNECESSARY TO PASS ON
THE ASSISTANT SECRETARY'S FURTHER CONCLUSION THAT SUCH OBLIGATION
CONTINUES UNTIL THE EMPLOYEE CHOOSES HIS OWN REPRESENTATIVE IN A
GRIEVANCE OR APPELLATE ACTION PURSUANT TO SECTION 7(D)(1).
/4/ SEE FOOTNOTE 1, SUPRA, P. 1.
/5/ WE DO NOT HERE FIND THAT SUCH A RIGHT COULD BE NEGOTIATED IN
CONFORMITY WITH LAW AND REGULATION.
/6/ IN REACHING THE ABOVE CONCLUSION, WE HAVE ADDRESSED ONLY THE
QUESTION OF THE UNION'S RIGHTS UNDER THE ORDER TO REPRESENT A UNIT
EMPLOYEE IN AN ADVERSE ACTION PROCEEDING PRIOR TO THE AGENCY'S
IMPOSITION OF DISCIPLINARY ACTION. NO ISSUE WAS PRESENTED CONCERNING
THE INDIVIDUAL EMPLOYEE'S RIGHTS UNDER THE ORDER, AND THAT QUESTION HAS
NOT BEEN CONSIDERED BY THE COUNCIL.
AS PREVIOUSLY NOTED (SUPRA, P. 2), HOWEVER, AFTER THE AGENCY TOOK
ADVERSE ACTION AGAINST THE INDIVIDUAL EMPLOYEE HEREIN, HE APPEALED SUCH
ACTION PURSUANT TO PART 772 OF THE CIVIL SERVICE COMMISSION RULES AND
REGULATIONS, WHEREIN THE EMPLOYEE DULY REQUESTED AND WAS ACCORDED THE
RIGHT TO BE REPRESENTED BY HIS UNION REPRESENTATIVE, AND WHEREIN THE
COMMISSION'S ATLANTA REGIONAL OFFICE AND THE BOARD OF APPEALS AND REVIEW
BOTH ADDRESSED THE ISSUE OF WHETHER THE EMPLOYEE'S RIGHT TO
REPRESENTATION IN THE EARLIER STAGE OF THE ADVERSE ACTION PROCEEDING WAS
DENIED. IN THIS REGARD, THE ALJ'S REPORT AND RECOMMENDATION ON PAGES
22, 23 AND 24 QUOTES DIRECTLY FROM THE COMMISSION DECISIONS TO SHOW THAT
THE EMPLOYEE'S CLAIM OF DENIAL OF REPRESENTATION HAD BEEN REVIEWED AND
CONSIDERED, WITH PARTICULAR REFERENCE TO THE FPM AND THE PROVISIONS OF
THE NEGOTIATED AGREEMENT APPLICABLE TO THE EMPLOYEE. THE COMMISSION
DECISION FOUND THAT THERE WAS NO EVIDENCE TO SHOW THE EMPLOYEE'S RIGHTS
HAD BEEN VIOLATED, THAT HE HAD BEEN EXTENDED HIS RIGHTS, AND THAT HIS
REMOVAL WAS NOT PROCEDURALLY DEFECTIVE. OF COURSE, THE UNION'S UNFAIR
LABOR PRACTICE CLAIMS AGAINST THE AGENCY UNDER THE ORDER WERE DECLARED
"NOT AT ISSUE" IN THE FOREGOING PROCEEDING, WHICH CONCERNED ONLY THE
EMPLOYEE'S RIGHTS UNDER THE ADVERSE ACTION APPEALS PROCEDURE.
5 A/SLMR 587; P. 720; CASE NOS. 70-2477, 70-2496 AND 70-4076;
NOVEMBER 26, 1975.
DEPARTMENT OF THE NAVY,
NAVAL AIR STATION,
FALLON, NEVADA
A/SLMR NO. 587
ON JULY 10, 1974, AN ADMINISTRATIVE LAW JUDGE ISSUED HIS REPORT AND
RECOMMENDATIONS FINDING, AMONG OTHER THINGS, THAT THE RESPONDENT
ACTIVITY VIOLATED SECTION 19(A)(1) OF THE ORDER BY REQUIRING EMPLOYEES
TO READ AND INITIAL A JANUARY 16, 1973, LETTER FROM THE RESPONDENT'S
COMMANDING OFFICER TO THE COMPLAINANT'S PRESIDENT WHICH WAS POSTED BY
THE ACTIVITY ON ITS BULLETIN BOARDS. THE ADMINISTRATIVE LAW JUDGE
FURTHER FOUND, HOWEVER, THAT THE ACTUAL POSTING OF THE LETTER BY THE
RESPONDENT DID NOT VIOLATE THE ORDER. IN HIS DECISION AND ORDER ISSUED
SEPTEMBER 30, 1974, THE ASSISTANT SECRETARY REJECTED THE ADMINISTRATIVE
LAW JUDGE'S FINDINGS WITH REGARD TO THE JANUARY 16TH POSTING AND FOUND A
VIOLATION OF SECTION 19(A)(1) AND (6), NOTING THAT, IN HIS VIEW, ABSENT
AGREEMENT BY THE EXCLUSIVE REPRESENTATIVE, DIRECT COMMUNICATIONS BY
AGENCIES OR ACTIVITIES WITH UNIT EMPLOYEES WITH RESPECT TO MATTERS
RELATING TO THE COLLECTIVE BARGAINING RELATIONSHIP NECESSARILY
UNDERMINED THE EXCLUSIVE REPRESENTATIVE'S RIGHTS SET FORTH IN SECTION
10(E) TO BE DEALT WITH EXCLUSIVELY IN MATTERS AFFECTING THE TERMS AND
CONDITIONS OF EMPLOYMENT OF THE UNIT EMPLOYEES IT REPRESENTS.
ON OCTOBER 24, 1975, THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL)
ISSUED ITS DECISION ON APPEAL IN THE SUBJECT CASE WHICH, IN PART,
REJECTED THE ASSISTANT SECRETARY'S RATIONALE. THUS, THE COUNCIL NOTED
THAT, IN ITS VIEW, THE ORDER DOES NOT PROSCRIBE ALL COMMUNICATIONS WITH
UNIT EMPLOYEES OVER MATTERS RELATING TO THE COLLECTIVE BARGAINING
RELATIONSHIP. RATHER, THE COUNCIL CONCLUDED THAT ONLY THOSE
COMMUNICATIONS WHICH, FOR EXAMPLE, AMOUNT TO AN ATTEMPT BY AGENCY
MANAGEMENT TO BYPASS THE EXCLUSIVE REPRESENTATIVE AND NEGOTIATE DIRECTLY
WITH UNIT EMPLOYEES, OR WHICH URGE EMPLOYEES TO PUT PRESSURE ON THE
REPRESENTATIVE TO TAKE A CERTAIN COURSE OF ACTION, OR WHICH THREATEN OR
PROMISE BENEFITS TO EMPLOYEES ARE VIOLATIVE OF THE ORDER. NOTING THAT
THE CONTENT, INTENT AND EFFECT OF THE JANUARY 16,1973, LETTER COULD
REASONABLY BE EQUATED WITH AN ATTEMPT TO BARGAIN DIRECTLY WITH UNIT
EMPLOYEES AND TO URGE THEM TO PUT PRESSURE ON THE UNION TO TAKE CERTAIN
ACTIONS, THE COUNCIL FOUND, IN AGREEMENT WITH THE ASSISTANT SECRETARY
BUT BASED ON DIFFERENT RATIONALE, THAT THE POSTING OF THE JANUARY 16TH
LETTER BY THE RESPONDENT WAS IN VIOLATION OF SECTION 19(A)(1) AND (6) OF
THE ORDER.
PURSUANT TO THE COUNCIL'S DECISION ON APPEAL, THE ASSISTANT SECRETARY
MODIFIED THE ORDER AND REMEDIAL NOTICE TO ALL EMPLOYEES IN A/SLMR NO.
432 TO CONFORM WITH THE COUNCIL'S HOLDING AND RATIONALE EXPRESSED
THEREIN.
DEPARTMENT OF THE NAVY,
NAVAL AIR STATION
FALLON, NEVADA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1841
ON JULY 10, 1974, ADMINISTRATIVE LAW JUDGE CHAITOVITZ ISSUED HIS
REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING,
AMONG OTHER THINGS, THAT THE RESPONDENT ACTIVITY VIOLATED SECTION
19(A)(1) OF THE ORDER BY REQUIRING EMPLOYEES TO READ AND INITIAL A
JANUARY 16, 1973, LETTER FROM THE RESPONDENT'S COMMANDING OFFICER TO THE
COMPLAINANT'S PRESIDENT WHICH WAS POSTED BY THE RESPONDENT ON ITS
BULLETIN BOARDS. THE ADMINISTRATIVE LAW JUDGE FURTHER FOUND, HOWEVER,
THAT THE ACTUAL POSTING OF THE JANUARY 16, 1973, LETTER BY THE
RESPONDENT DID NOT VIOLATE THE ORDER. IN THIS LATTER REGARD, THE
ADMINISTRATIVE LAW JUDGE, ALTHOUGH NOTING THAT THE LETTER INVOLVED
CONTAINED STATEMENTS WHICH MIGHT BE OFFENSIVE TO THE COMPLAINANT,
REASONED THAT AN ACTIVITY CAN COMMUNICATE WITH EMPLOYEES AND REPORT ITS
VERSION OF ANY MEETING ON ITS POSITION IN LABOR-MANAGEMENT MATTERS SO
LONG AS THE COMMUNICATIONS DO NOT INVOLVE UNLAWFUL THREATS AND PROMISES
OF BENEFIT AND DO NOT CONSTITUTE AN ATTEMPT TO BYPASS THE EXCLUSIVE
REPRESENTATIVE.
IN HIS DECISION AND ORDER ISSUED SEPTEMBER 30, 1974, THE ASSISTANT
SECRETARY REJECTED THE ADMINISTRATIVE JUDGE'S FINDING WITH REGARD TO THE
JANUARY 16TH POSTING AND NOTED THAT, IN HIS VIEW, ABSENT AGREEMENT BY
THE EXCLUSIVE REPRESENTATIVE, DIRECT COMMUNICATIONS BY AGENCIES OR
ACTIVITIES WITH UNIT EMPLOYEES WITH RESPECT TO MATTERS RELATING TO THE
COLLECTIVE BARGAINING RELATIONSHIP NECESSARILY UNDERMINED THE EXCLUSIVE
REPRESENTATIVE'S RIGHTS SET FORTH IN SECTION 10(E) TO BE DEALT WITH
EXCLUSIVELY IN MATTERS AFFECTING THE TERMS AND CONDITIONS OF EMPLOYMENT
OF THE UNIT EMPLOYEES IT REPRESENTS. ACCORDINGLY, THE ASSISTANT
SECRETARY FOUND THAT THE RESPONDENT'S CONDUCT IN POSTING THE JANUARY 16,
1973, LETTER WAS INCONSISTENT WITH THE RESPONDENT'S OBLIGATION TO DEAL
EXCLUSIVELY WITH THE EXCLUSIVE REPRESENTATIVE IN VIOLATION OF 19(A)(1)
AND (6) OF THE ORDER.
ON OCTOBER 24, 1975, THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL)
ISSUED ITS DECISION ON APPEAL IN THE SUBJECT CASE WHICH, IN PART,
REJECTED THE ASSISTANT SECRETARY'S RATIONALE. THUS, THE COUNCIL NOTED
THAT, IN ITS VIEW, THE ORDER DOES NOT PROSCRIBE ALL COMMUNICATIONS WITH
UNIT EMPLOYEES OVER MATTERS RELATING TO THE COLLECTIVE BARGAINING
RELATIONSHIP. RATHER, THE COUNCIL CONCLUDED THAT ONLY THOSE
COMMUNICATIONS WHICH, FOR EXAMPLE, AMOUNT TO AN ATTEMPT BY AGENCY
MANAGEMENT TO BYPASS THE EXCLUSIVE REPRESENTATIVE AND NEGOTIATE DIRECTLY
WITH UNIT EMPLOYEES, OR WHICH URGE EMPLOYEES TO PUT PRESSURE ON THE
REPRESENTATIVE TO TAKE A CERTAIN COURSE OF ACTION, OR WHICH THREATEN OR
PROMISE BENEFITS TO EMPLOYEES ARE VIOLATIVE OF THE ORDER. IN THIS
REGARD, NOTING THAT THE CONTENT, INTENT AND EFFECT OF THE JANUARY 16,
1973, LETTER COULD REASONABLY BE EQUATED WITH AN ATTEMPT TO BARGAIN
DIRECTLY WITH UNIT EMPLOYEES AND TO URGE THEM TO PUT PRESSURE ON THE
UNION TO TAKE CERTAIN ACTIONS, THE COUNCIL FOUND THAT THE ASSISTANT
SECRETARY'S DECISION THAT THE COMMUNICATIONS INVOLVED IN THE INSTANT
CASE VIOLATED SECTION 19(A)(1) AND (6) WAS CONSISTENT WITH THE PURPOSES
OF THE ORDER.
BASED ON THE COUNCIL'S HOLDING, AND THE RATIONALE CONTAINED THEREIN,
I HEREBY MODIFY THE ORDER AND REMEDIAL NOTICE TO ALL EMPLOYEES IN THE
SUBJECT CASE TO READ AS FOLLOWS:
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE DEPARTMENT OF THE
NAVY, NAVAL AIR STATION, FALLON, NEVADA, SHALL:
1. CEASE AND DESIST FROM:
(A) POSTING LETTERS ON BULLETIN BOARDS RELATING TO MEETINGS
PERTAINING TO THE COLLECTIVE BARGAINING RELATIONSHIP BETWEEN THE FALLON
NAVAL AIR STATION AND THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1841, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, WHERE THE CONTENT
AND EFFECT OF SUCH LETTERS CONSTITUTE AN ATTEMPT TO BARGAIN DIRECTLY
WITH UNIT EMPLOYEES AND TO URGE THEM TO PUT PRESSURE ON THEIR EXCLUSIVE
REPRESENTATIVE TO TAKE CERTAIN ACTIONS.
(B) REQUIRING EMPLOYEES TO READ AND INITIAL COMMUNICATIONS POSTED ON
BULLETIN BOARDS PERTAINING TO THE COLLECTIVE BARGAINING RELATIONSHIP
BETWEEN THE FALLON NAVAL AIR STATION AND THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 1841, THE EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, UNLESS THERE EXISTS A MUTUAL AGREEMENT TO PERMIT SUCH
ACTION.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) POST AT ITS FACILITY AT NAVAL AIR STATION, FALLON, NEVADA, COPIES
OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS. UPON
RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDING OFFICER,
DEPARTMENT OF THE NAVY, NAVAL AIR STATION, FALLON, NEVADA, AND THEY
SHALL BE POSTED AND MAINTAINED BY HIM FOR SIXTY (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.
(B) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
NOVEMBER 26, 1975
WE WILL NOT POST LETTERS ON BULLETIN BOARDS RELATING TO MEETINGS
PERTAINING TO THE COLLECTIVE BARGAINING RELATIONSHIP BETWEEN THE FALLON
NAVAL AIR STATION AND THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1841, OUR EMPLOYEES' EXCLUSIVE REPRESENTATIVE, WHERE THE CONTENT
AND EFFECT OF SUCH LETTERS CONSTITUTE AN ATTEMPT TO BARGAIN DIRECTLY
WITH UNIT EMPLOYEES AND TO URGE THEM TO PUT PRESSURE ON THEIR EXCLUSIVE
REPRESENTATIVE TO TAKE CERTAIN ACTIONS.
WE WILL NOT REQUIRE OUR EMPLOYEES TO READ AND INITIAL COMMUNICATIONS
POSTED ON BULLETIN BOARDS PERTAINING TO THE COLLECTIVE BARGAINING
RELATIONSHIP BETWEEN THE FALLON NAVAL AIR STATION AND THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1841, OUR EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, UNLESS THERE EXISTS A MUTUAL AGREEMENT TO PERMIT SUCH
ACTION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR, WHOSE ADDRESS IS: ROOM 9061, FEDERAL OFFICE BUILDING, 450 GOLDEN
GATE AVENUE, SAN FRANCISCO, CALIFORNIA 94102.
DEPARTMENT OF THE NAVY, NAVAL
AIR STATION, FALLON, NEVADA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1841
THIS APPEAL FROM A DECISION AND ORDER OF THE ASSISTANT SECRETARY
ORIGINATES FROM AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1841 (UNION), CONTENDING, IN
PERTINENT PART, THAT THE DEPARTMENT OF THE NAVY, NAVAL AIR STATION,
FALLON, NEVADA (ACTIVITY), HAD VIOLATED SECTION 19(A)(1) AND (6) OF THE
ORDER BY POSTING A LETTER, WITHOUT PRIOR UNION APPROVAL, ALLEGEDLY
CONTAINING THREATS AND DEMONSTRATING THAT THE ACTIVITY HELD THE UNION IN
DISDAIN. THE LETTER WAS A COMMUNICATION FROM THE ACTIVITY'S COMMANDING
OFFICER TO THE UNION'S PRESIDENT WHICH REFLECTED EVENTS OCCURRING AT A
SPECIAL MEETING BETWEEN THE UNION'S PRESIDENT AND THE ACTIVITY'S
EXECUTIVE OFFICER HELD TO SOLVE A NEGOTIATING PROBLEM AND AN UNFAIR
LABOR PRACTICE CHARGE. THE LETTER STATED THAT: (1) IT HAD BEEN BROUGHT
TO THE ATTENTION OF THE ACTIVITY'S COMMANDING OFFICER THAT THE UNION'S
PRESIDENT HAD BEEN INVOLVED IN "HIGHLY IRREGULAR TACTICS AND PROCEDURES"
AND HAD BEEN "QUOTED AS MAKING HIGHLY SUSPICIOUS STATEMENTS, CONCERNING
MANAGEMENT, WHICH . . . (PROMPTED QUESTIONING OF) CERTAIN LOYALTIES AND
INTEGRITIES . . . IN EXERCISING THE CALLING OF . . . (HER UNION)
OFFICE"; (2) THE EXECUTIVE OFFICER "WOULD NOT BE INTIMIDATED BY ANY
'BLACKMAIL' TACTICS ON THE PART OF THE UNION"; AND (3) "ANY FURTHER
TACTICS . . . TO CONVEY THREATS, INTIMIDATIONS OR OTHERWISE SEEK TO
HAMPER THE COLLECTIVE BARGAINING PROCESS (WOULD RESULT IN THE ACTIVITY'S
CHARGING THE UNION WITH) . . . FAILING TO NEGOTIATE IN GOOD FAITH,"
SINCE SUCH ACTIONS "ARE CLEARLY RECOGNIZABLE AS VIOLATIONS UNDER THE
EXECUTIVE ORDER 11491, AS AMENDED, AND IF CONTINUED WILL RESULT IN
FORMAL CHARGES."
THE ASSISTANT SECRETARY FOUND FIRST,
. . . ABSENT MUTUAL AGREEMENT BETWEEN AN EXCLUSIVE BARGAINING
REPRESENTATIVE AND AN AGENCY
OR ACTIVITY CONCERNING THE LATTERS' RIGHTS TO COMMUNICATE DIRECTLY
WITH UNIT EMPLOYEES OVER
MATTERS RELATING TO THE COLLECTIVE BARGAINING RELATIONSHIP, DIRECT
COMMUNICATIONS SUCH AS THAT
INVOLVED IN THIS SITUATION NECESSARILY TEND TO UNDERMINE THE STATUS
OF THE EXCLUSIVE
BARGAINING REPRESENTATIVE.
THE ASSISTANT SECRETARY REASONED THAT,
. . . BY DIRECTLY REPORTING TO UNIT EMPLOYEES MATTERS WHICH HAVE
ARISEN IN THE CONTEXT OF
THE COLLECTIVE BARGAINING RELATIONSHIP, AN AGENCY OR ACTIVITY
NECESSARILY UNDERMINES AN
EXCLUSIVE REPRESENTATIVE'S RIGHTS SET FORTH IN SECTION 10(E) TO BE
DEALT WITH EXCLUSIVELY IN
MATTERS AFFECTING THE TERMS AND CONDITIONS OF EMPLOYMENT OF THE UNIT
EMPLOYEES IT
REPRESENTS. ANY LESSER STANDARD CLEARLY WOULD BE IN DEROGATION OF
THE COLLECTIVE BARGAINING
RELATIONSHIP.
THE ASSISTANT SECRETARY, AFTER CONCLUDING THAT THE NEED FOR SUCH A
POLICY WAS CLEARLY DEMONSTRATED IN THIS CASE WHERE THE ACTIVITY'S
"COMMUNICATION TO UNIT EMPLOYEES CREATED AN UNFAVORABLE IMPRESSION WITH
RESPECT TO THE ACTIONS OF THE COMPLAINANT'S (UNION'S) PRESIDENT," AND,
IN HIS VIEW, "NECESSARILY TENDED TO UNDERMINE THE COMPLAINANT'S
EXCLUSIVE BARGAINING STATUS," FOUND THAT THE AGENCY'S POSTING OF THE
LETTER AT ISSUE WAS "INCONSISTENT WITH ITS OBLIGATION UNDER THE ORDER TO
DEAL EXCLUSIVELY WITH THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES IN
VIOLATION OF SECTION 19(A)(6)" AND MOREOVER, "SUCH CONDUCT NECESSARILY
INTERFERED WITH THE RIGHTS OF UNIT EMPLOYEES IN VIOLATION OF SECTION
19(A)(1)."
AS A REMEDY, THE ASSISTANT SECRETARY ORDERED THE ACTIVITY TO CEASE
AND DESIST FROM SUCH POSTING OF LETTERS AND TO POST A NOTICE TO THAT
EFFECT.
THEREAFTER, THE ASSISTANT SECRETARY'S DECISION WAS APPEALED TO THE
COUNCIL BY THE AGENCY. UPON CONSIDERATION OF THE PETITION FOR REVIEW,
AND THE OPPOSITION FOR REVIEW FILED BY THE UNION, THE COUNCIL DETERMINED
THAT A MAJOR POLICY ISSUE WAS PRESENTED BY THE DECISION OF THE ASSISTANT
SECRETARY, NAMELY:
THE PROPRIETY OF THE FINDING OF THE ASSISTANT SECRETARY THAT, ABSENT
MUTUAL AGREEMENT
BETWEEN AN EXCLUSIVE BARGAINING REPRESENTATIVE AND AN AGENCY OR
ACTIVITY CONCERNING THE
LATTER'S RIGHT TO COMMUNICATE DIRECTLY WITH UNIT EMPLOYEES OVER
MATTERS RELATING TO THE
COLLECTIVE BARGAINING RELATIONSHIP, DIRECT COMMUNICATIONS (SUCH AS
THOSE INVOLVED IN THE
INSTANT CASE) NECESSARILY TEND TO UNDERMINE THE STATUS OF THE
EXCLUSIVE REPRESENTATIVE, IN
VIOLATION OF THE ORDER.
THE COUNCIL ALSO DETERMINED THAT THE AGENCY'S REQUEST FOR A STAY MET
THE CRITERIA FOR GRANTING SUCH A REQUEST AS SET FORTH IN SECTION
2411.47(C) OF ITS RULES, AND GRANTED THE REQUEST. ONLY THE UNION FILED
A BRIEF ON THE MERITS AS PROVIDED FOR IN SECTION 2411.16 OF THE
COUNCIL'S RULES.
SECTION 10(E) OF THE ORDER PROVIDES, IN PERTINENT PART, THAT:
WHEN A LABOR ORGANIZATION HAS BEEN ACCORDED EXCLUSIVE RECOGNITION, IT
IS THE EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES IN THE UNIT AND IS ENTITLED TO ACT FOR
AND TO NEGOTIATE AGREEMENTS
COVERING ALL EMPLOYEES IN THE UNIT . . .
THIS CONCEPT OF "EXCLUSIVE RECOGNITION" IN THE FEDERAL SERVICE, FIRST
PROVIDED FOR UNDER EXECUTIVE ORDER 10988, WAS CARRIED OVER AND
STRENGTHENED UNDER EXECUTIVE ORDER 11491, AS AMENDED. IN DESCRIBING THE
OBLIGATION OWED TO AN EXCLUSIVE REPRESENTATIVE, THE REPORT OF THE
PRESIDENT'S TASK FORCE ON EMPLOYEE-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE, WHICH LED TO THE ISSUANCE OF E.O. 10988, STATED:
. . . IF AN EMPLOYEE ORGANIZATION IS CHOSEN BY THE MAJORITY OF THE
EMPLOYEES IN AN
APPROPRIATE UNIT IT BECOMES THE ONLY FORMAL RECOGNIZED REPRESENTATIVE
FOR THE UNIT. IN ITS
DEALINGS WITH MANAGEMENT OFFICIALS IT IS CONSIDERED TO SPEAK FOR ALL
OF THE EMPLOYEES OF THE
UNIT, A RESPONSIBILITY WHICH IT MUST, OF COURSE, MEET. /1/
THUS, WHEN A LABOR ORGANIZATION HAS BEEN SELECTED AS THE EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES IN AN APPROPRIATE UNIT, AGENCY MANAGEMENT
MUST DEAL WITH IT ONLY, TO THE EXCLUSION OF OTHER LABOR ORGANIZATIONS
AND WITHOUT ENGAGING IN DIRECT NEGOTIATIONS WITH UNIT EMPLOYEES OVER
MATTERS WITHIN THE SCOPE OF THE COLLECTIVE BARGAINING RELATIONSHIP. TO
PERMIT OTHERWISE WOULD ALLOW AGENCY MANAGEMENT TO AVOID THE
RESPONSIBILITY OWED TO THE EXCLUSIVE REPRESENTATIVE TO TREAT IT AS THE
ONLY FORMAL REPRESENTATIVE WHO SPEAKS FOR ALL UNIT EMPLOYEES.
WHILE THE OBLIGATION TO DEAL ONLY WITH THE EXCLUSIVE REPRESENTATIVE
OVER MATTERS RELATING TO THE COLLECTIVE BARGAINING RELATIONSHIP IS
CLEAR, THIS DOES NOT MEAN THAT ALL COMMUNICATION WITH UNIT EMPLOYEES
OVER SUCH MATTERS IS PROHIBITED. INDEED, UNDER CERTAIN CIRCUMSTANCES
AGENCY MANAGEMENT IS OBLIGATED TO ENGAGE IN COMMUNICATIONS WITH
BARGAINING UNIT EMPLOYEES REGARDING THE COLLECTIVE BARGAINING
RELATIONSHIP. FOR EXAMPLE, SECTION 1(A) OF THE ORDER REQUIRES THAT "THE
HEAD OF EACH AGENCY SHALL TAKE THE ACTION REQUIRED TO ASSURE THAT
EMPLOYEES IN THE AGENCY ARE APPRISED OF THEIR RIGHTS UNDER THIS SECTION
. . . " IN DETERMINING WHETHER A COMMUNICATION IS VIOLATIVE OF THE
ORDER, IT MUST BE JUDGED INDEPENDENTLY AND A DETERMINATION MADE AS TO
WHETHER THAT COMMUNICATION CONSTITUTES, FOR EXAMPLE, AN ATTEMPT BY
AGENCY MANAGEMENT TO DEAL OR NEGOTIATE DIRECTLY WITH UNIT EMPLOYEES OR
TO THREATEN OR PROMISE BENEFITS TO EMPLOYEES. IN REACHING THIS
DETERMINATION, BOTH THE CONTENT OF THE COMMUNICATION AND THE
CIRCUMSTANCES SURROUNDING IT MUST BE CONSIDERED. /2/ MORE SPECIFICALLY,
ALL COMMUNICATIONS BETWEEN AGENCY MANAGEMENT AND UNIT EMPLOYEES OVER
MATTERS RELATING TO THE COLLECTIVE BARGAINING RELATIONSHIP ARE NOT
VIOLATIVE. RATHER COMMUNICATIONS WHICH, FOR EXAMPLE, AMOUNT TO AN
ATTEMPT TO BYPASS THE EXCLUSIVE REPRESENTATIVE AND BARGAIN DIRECTLY WITH
EMPLOYEES, OR WHICH URGE EMPLOYEES TO PUT PRESSURE ON THE REPRESENTATIVE
TO TAKE A CERTAIN COURSE OF ACTION, OR WHICH THREATEN OR PROMISE
BENEFITS TO EMPLOYEES ARE VIOLATIVE OF THE ORDER. TO THE EXTENT THAT
COMMUNICATION IS PERMISSIBLE, IT IS IMMATERIAL WHETHER SUCH
COMMUNICATION WAS PREVIOUSLY AGREED UPON BY THE EXCLUSIVE REPRESENTATIVE
AND THE AGENCY OR ACTIVITY CONCERNING THE LATTER'S RIGHT TO ENGAGE IN
SUCH COMMUNICATION.
REGARDING THE INSTANT CASE, THE ASSISTANT SECRETARY FOUND THAT AGENCY
MANAGEMENT POSTED THE CONTENTS OF A LETTER TO THE UNION PRESIDENT
REFLECTING THE EVENTS WHICH OCCURRED AT A SPECIAL MEETING BETWEEN THE
EXECUTIVE OFFICER AND THE UNION PRESIDENT HELD TO SOLVE A NEGOTIATING
PROBLEM AND AN UNFAIR LABOR PRACTICE CHARGE. THIS, THEN, POSES THE
QUESTION WHETHER, IN THE CIRCUMSTANCES OF THE CASE, AGENCY MANAGEMENT'S
ACTIONS CONSTITUTED AN EFFORT TO IMPAIR THE STATUS OF THE EXCLUSIVE
REPRESENTATIVE BY ATTEMPTING TO CONVEY TO EMPLOYEES THAT THEY SHOULD
BYPASS THE UNION AND DEAL DIRECTLY WITH MANAGEMENT OR TO SOLICIT
EMPLOYEES TO CAUSE THEIR REPRESENTATIVE TO TAKE PARTICULAR COURSE OF
ACTION. THE ASSISTANT SECRETARY, STATING ". . . IT IS IMPROPER FOR
AGENCIES OR ACTIVITIES TO COMMUNICATE DIRECTLY WITH UNIT EMPLOYEES WITH
RESPECT TO MATTERS RELATING TO THE COLLECTIVE BARGAINING RELATIONSHIP,"
FOUND THAT MANAGEMENT HAD VIOLATED THE ORDER. APPLYING OUR VIEWS ON THE
DIFFERENCES BETWEEN PERMISSIBLE AND PROHIBITED COMMUNICATIONS, WE FIND
NO BASIS FOR OVERTURNING THE ASSISTANT SECRETARY'S FINDINGS INSOFAR AS
THE SPECIFIC COMMUNICATIONS HERE INVOLVED. THAT IS, THE CONTENT, INTENT
AND EFFECT OF THE LETTER CAN REASONABLY BE EQUATED WITH AN ATTEMPT TO
BARGAIN DIRECTLY WITH EMPLOYEES AND TO URGE THEM TO PUT PRESSURE ON THE
UNION TO TAKE CERTAIN ACTIONS.
FOR THE FOREGOING REASONS, WHILE DETERMINING THAT THE ORDER DOES NOT
PROVIDE THAT, ABSENT MUTUAL AGREEMENT BETWEEN AN EXCLUSIVE BARGAINING
REPRESENTATIVE AND AN AGENCY OR ACTIVITY CONCERNING THE LATTER'S RIGHT
TO COMMUNICATE DIRECTLY WITH UNIT EMPLOYEES OVER MATTERS RELATING TO THE
COLLECTIVE BARGAINING RELATIONSHIP, DIRECT COMMUNICATIONS NECESSARILY
TEND TO UNDERMINE THE STATUS OF THE EXCLUSIVE REPRESENTATIVE IN
VIOLATION OF THE ORDER, WE FIND THAT THE ASSISTANT SECRETARY'S DECISION
THAT THE COMMUNICATIONS INVOLVED IN THE INSTANT CASE VIOLATED SECTION
19(A)(1) AND (6) IS CONSISTENT WITH THE PURPOSES OF THE ORDER.
ACCORDINGLY, PURSUANT TO SECTION 2411.18(B) OF THE COUNCIL'S RULES
AND REGULATIONS, WE SUSTAIN THE ASSISTANT SECRETARY'S DECISION AND
VACATE OUR EARLIER STAY OF THAT DECISION.
BY THE COUNCIL.
ISSUED: OCTOBER 24, 1975
/1/ REPORT OF THE PRESIDENT'S TASK FORCE ON EMPLOYEE-MANAGEMENT
RELATIONS IN THE FEDERAL SERVICE, A POLICY FOR EMPLOYEE-MANAGEMENT
COOPERATION IN THE FEDERAL SERVICE (1961), AT 14.
/2/ AN ANALOGOUS DISTINCTION IS THAT DRAWN IN THE COUNCIL'S RECENT
DECISION IN NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA),
WASHINGTON, D.C. AND LYNDON B. JOHNSON SPACE CENTER (NASA), HOUSTON,
TEXAS, A/SLMR NO. 457, FLRC NO. 74A-95 (SEPTEMBER 26, 1975), REPORT NO.
. . . , WHEREIN CERTAIN "INFORMATION GATHERING" MEETINGS BETWEEN
MANAGEMENT AND UNIT EMPLOYEES WERE FOUND NOT TO BE "FORMAL DISCUSSIONS
CONCERNING GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER
MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT,"
AND, ACCORDINGLY, MANAGEMENT WAS NOT REQUIRED TO PERMIT THE UNION TO BE
PRESENT AT SUCH MEETINGS.
5 A/SLMR 586; P. 718; CASE NO. 40-6126(CU); NOVEMBER 26, 1975.
DEPARTMENT OF THE ARMY,
FORT MCPHERSON, GEORGIA
A/SLMR NO. 586
THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1759 (AFGE LOCAL 1795), SOUGHT TO CLARIFY ITS EXCLUSIVELY
RECOGNIZED UNIT AT FORT MCPHERSON, GEORGIA, SO AS TO INCLUDE ALL
NON-SUPERVISORY AND NONPROFESSIONAL EMPLOYEES WHO CURRENTLY ARE EMPLOYED
BY FORT MCPHERSON, BUT ARE LOCATED PHYSICALLY AT FORT GILLEM, GEORGIA,
(FORMERLY THE ATLANTA ARMY DEPOT). THE ACTIVITY AGREED THAT THE
EMPLOYEES ASSIGNED TO FORT GILLEM SHOULD BE INCLUDED IN AFGE LOCAL
1759'S EXISTING UNIT.
THE ASSISTANT SECRETARY FOUND THAT THE EVIDENCE ADDUCED DURING THE
HEARING IN THIS CASE DID NOT PROVIDE A SUFFICIENT BASIS UPON WHICH A
DECISION COULD BE MADE REGARDING THE APPROPRIATENESS OF THE UNIT
CLARIFICATION SOUGHT. IN THIS REGARD, HE NOTED, AMONG OTHER THINGS,
THAT THERE WAS INSUFFICIENT EVIDENCE WITH RESPECT TO THE NUMBER, DUTIES,
JOB CLASSIFICATIONS, SKILLS, SUPERVISION, TRANSFER AND WORK CONTRACTS OF
THE EMPLOYEES AT FOT MCPHERSON AND FORT GILLEM. HE ALSO NOTED THAT
PRIOR TO A DEPARTMENT OF ARMY REORGANIZATION ON JUNE 30, 1974, THE
ATLANTA ARMY DEPOT (DEPOT) WAS PART OF THE ARMY MATERIEL COMMAND AND
THAT THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 81
(AFGE LOCAL 81) HELD EXCLUSIVE RECOGNITION FOR ALL NONPROFESSIONALS AT
THE DEPOT, BUT THE RECORD WAS UNCLEAR AS TO THE SCOPE OF SUCH UNIT, THE
NUMBER OF EMPLOYEES, THEIR JOB CLASSIFICATIONS, THE IMPACT OF THE
ABOVE-MENTIONED REORGANIZATION AND THE CURRENT STATUS OF AFGE LOCAL 81.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY REMANDED THE MATTER
TO THE APPROPRIATE ASSISTANT REGIONAL DIRECTOR FOR THE PURPOSE OF
SECURING ADDITIONAL EVIDENCE IN ACCORDANCE WITH HIS DECISION.
DEPARTMENT OF THE ARMY,
FORT MCPHERSON, GEORGIA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1759
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER OTIS CHENNAULT.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1759, HEREIN CALLED AFGE LOCAL 1759, THE EXCLUSIVE REPRESENTATIVE
OF CERTAIN EMPLOYEES OF THE DEPARTMENT OF THE ARMY AT FORT MCPHERSON,
GEORGIA, SEEKS TO CLARIFY ITS EXISTING EXCLUSIVELY RECOGNIZED UNIT SO AS
TO INCLUDE ALL NONSUPERVISORY AND NONPROFESSIONAL EMPLOYEES OF FORT
GILLEM, GEORGIA (FORMERLY THE ATLANTA ARMY DEPOT), WHO CURRENTLY ARE
EMPLOYED BY FORT MCPHERSON, GEORGIA, BUT ARE LOCATED PHYSICALLY AT FORT
GILLEM, GEORGIA. THE ACTIVITY AND THE AFGE AGREE THAT THE EMPLOYEES
ASSIGNED TO FORT GILLEM SHOULD BE INCLUDED IN AFGE LOCAL 1795'S EXISTING
UNIT. IN THIS REGARD, THEY ASSERT THAT FORT MCPHERSON EMPLOYEES
PHYSICALLY LOCATED AT FORT GILLEM DO NOT CONSTITUTE A SEPARATE
ORGANIZATIONAL ENTITY BUT, RATHER, ARE AN EXTENSION OF FORT MCPHERSON.
THE ACTIVITY, LOCATED AT FORT MCPHERSON, GEORGIA, IS PART OF THE U.S.
ARMY COMMAND WHOSE MISSION IS TO ORGANIZE, EQUIP, STATION, TRAIN AND
MAINTAIN THE COMBAT READINESS OF ACTIVE U.S. ARMY UNITS AND U.S. ARMY
RESERVE FORCES. OVERALL DIRECTION OF THE ACTIVITY IS VESTED IN THE
COMMANDER, FORT MCPHERSON. THE EVIDENCE ESTABLISHED THAT ON DECEMBER 9,
1963, AFGE LOCAL 1759 WAS ACCORDED EXCLUSIVE RECOGNITION BY THE ACTIVITY
FOR A UNIT DESCRIBED AS: ALL CIVILIAN EMPLOYEES AT FORT MCPHERSON,
GEORGIA, EXCLUDING MANAGERIAL OFFICIALS, PROFESSIONAL EMPLOYEES,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, SUPERVISORS AND GUARDS. AT THE TIME OF THE HEARING
HEREIN, THIS EXCLUSIVELY RECOGNIZED UNIT CONSISTED OF APPROXIMATELY
1,442 EMPLOYEES.
ON DECEMBER 8, 1964, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 81, HEREIN CALLED AFGE LOCAL 81, WAS GRANTED EXCLUSIVE RECOGNITION
FOR A UNIT OF ALL NONPROFESSIONAL EMPLOYEES AT THE ATLANTA ARMY DEPOT,
(DEPOT) FOREST PARK, GEORGIA. THE DEPOT WAS PART OF THE ARMY MATERIEL
COMMAND WHOSE MISSION INVOLVED THE MANAGEMENT AND PROCUREMENT OF
INVENTORIES THROUGHOUT THE UNITED STATES FOR THE DEPARTMENT OF THE ARMY.
ON JUNE 30, 1974, PURSUANT TO A DEPARTMENT OF THE ARMY REORGANIZATION,
THE ARMY MATERIEL COMMAND DISCONTINUED OPERATIONS AT THE DEPOT AND,
THEREAFTER, ALL REAL PROPERTY WAS TRANSFERRED TO FORT MCPHERSON AND
PLACED UNDER THE U.S. ARMY FORCES COMMAND. THE DEPOT, AFTER THE
REORGANIZATION, WAS RENAMED FORT GILLEM.
WITH REGARD TO THE EMPLOYEES IN THE UNIT REPRESENTED BY AFGE LOCAL
81, THE RECORD IS UNCLEAR AS TO THE SCOPE OF SUCH UNIT, THE NUMBER OF
EMPLOYEES, THEIR JOB CLASSIFICATIONS AND DUTIES PRIOR TO JUNE 30, 1974,
THE DATE OF THE REORGANIZATION. FURTHER, THE RECORD IS NOT CLEAR AS TO
THE IMPACT OF SUCH REORGANIZATION ON THE UNIT EMPLOYEES. THUS, THE
RECORD SHOWS THAT AN UNCERTAIN NUMBER OF EMPLOYEES REMAINED AT FORT
GILLEM AND THAT AN UNCERTAIN NUMBER MOVED TO FORT MCPHERSON AFTER THE
REORGANIZATION. IT IS NOT CLEAR IN EITHER CASE AS TO PRECISE NUMBERS,
JOB CLASSIFICATIONS OR DUTIES OF SUCH EMPLOYEES, OR WHETHER THEY
REMAINED IN SUBSTANTIALLY THE SAME ORGANIZATIONAL UNIT, OR WERE
ASSIMILATED INTO NEW ORGANIZATIONAL UNITS. NOR IS THE RECORD CLEAR AS
TO WHETHER SUCH EMPLOYEES RETAINED THEIR ORIGINAL JOB CLASSIFICATIONS
AND DUTIES AND WERE MERELY TRANSFERRED TO THE NEW COMMAND, OR WHETHER
THEY WERE TERMINATED AND REHIRED IN NEW CLASSIFICATIONS.
IN ADDITION, WITH REGARD TO THE EMPLOYEES IN THE UNIT REPRESENTED BY
AFGE LOCAL 1759, THE RECORD IS NOT CLEAR AS TO THEIR ORGANIZATIONAL
STRUCTURE, NUMBER, JOB CLASSIFICATIONS, DUTIES, AND SUPERVISION.
FURTHER, THE RECORD IS NOT CLEAR AS TO THE IMPACT OF THE REORGANIZATION
UPON EMPLOYEES IN THIS UNIT. THUS, THE RECORD INDICATES MERELY THAT,
SINCE THE REORGANIZATION, CERTAIN EMPLOYEES HAVE BEEN ASSIGNED
TEMPORARILY TO FORT GILLEM; THAT THERE HAS BEEN, OR WILL BE, PERMANENT
TRANSFER OF UNDISCLOSED ORGANIZATIONAL UNITS FROM FORT MCPHERSON TO FORT
GILLEM; AND THAT CERTAIN PERSONNEL POLICIES AND OTHER TERMS AND
CONDITIONS OF EMPLOYMENT PREVAILING AT FORT MCPHERSON HAVE BEEN EXTENDED
IN UNDISCLOSED DEGREE TO EMPLOYEES AT FORT GILLEM.
FURTHER, THE RECORD IS AMBIGUOUS WITH REGARD TO THE CURRENT STATUS OF
AFGE LOCAL 81. THUS, THE RECORD SHOWS THAT A TRUSTEE FOR AFGE LOCAL 81
DISCLAIMED INTEREST IN REPRESENTING ANY EMPLOYEES AT FORT GILLEM, AND
THAT AFGE LOCAL 81 FAILED TO APPEAR AT THE HEARING ALTHOUGH IT WAS
SERVED WITH A COPY OF THE NOTICE OF HEARING IN THIS MATTER. HOWEVER,
THE RECORD FURTHER REFLECTS THAT A LETTER PROTESTING THE SUBJECT
PETITION WAS SENT TO THE ACTIVITY, APPARENTLY BY MEMBERS OF AFGE LOCAL
81, OR ON THEIR BEHALF, BUT IT DOES NOT REFLECT THE BASIS FOR THE
PROTEST, NOR THE PARTIES MAKING SUCH PROTEST.
UNDER ALL THESE CIRCUMSTANCES, I FIND THAT THE RECORD DOES NOT
PROVIDE AN ADEQUATE BASIS UPON WHICH TO DETERMINE THE APPROPRIATENESS OF
THE CLARIFICATION ACTION SOUGHT BY THE PETITION HEREIN. THEREFORE, I
SHALL REMAND THE SUBJECT CASE TO THE APPROPRIATE ASSISTANT REGIONAL
DIRECTOR FOR THE PURPOSE OF REOPENING THE RECORD IN ORDER TO SECURE
ADDITIONAL EVIDENCE.
IT IS HEREBY ORDERED THAT THE SUBJECT CASE BE, AND IT HERE IS,
REMANDED TO THE APPROPRIATE ASSISTANT REGIONAL DIRECTOR.
DATED, WASHINGTON, D.C.
NOVEMBER 26, 1975
5 A/SLMR 585; P. 714; CASE NO. 30-5951(CA); NOVEMBER 26, 1975.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
EASTERN REGION
A/SLMR NO. 585
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
NATIONAL ASSOCIATION OF AIR TRAFFIC SPECIALISTS, EASTERN REGION
(COMPLAINANT) ALLEGING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND
(2) OF THE ORDER BASED ON THE RESPONDENT'S FACILITY CHIEF THREATENING TO
GIVE THE COMPLAINANT'S FACILITY REPRESENTATIVE LEAVE WITHOUT PAY FOR
TARDINESS AND HIS ACCUSING THE FACILITY REPRESENTATIVE OF BREAKING AND
ENTERING THE RESPONDENT'S OFFICES AND USING THE RESPONDENT'S EQUIPMENT
TO CONDUCT UNION BUSINESS.
NOTING THAT THE EVIDENCE DID NOT ESTABLISH THAT THE WARNINGS TO THE
FACILITY REPRESENTATIVE REGARDING TARDINESS RESULTED FROM THE FACILITY
REPRESENTATIVE'S UNION ACTIVITIES AND, FURTHER, FINDING THAT THE
EVIDENCE DID NOT SUPPORT THE ALLEGATION CONCERNING THE ACCUSATION OF
BREAKING AND ENTERING, THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE
COMPLAINT BE DISMISSED.
THE ASSISTANT SECRETARY, NOTING PARTICULARLY THE ABSENCE OF
EXCEPTIONS, ADOPTED THE FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF
THE ADMINISTRATIVE LAW JUDGE AND ORDERED THAT THE COMPLAINT BE DISMISSED
IN ITS ENTIRETY.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
EASTERN REGION
AND
NATIONAL ASSOCIATION OF AIR TRAFFIC
SPECIALISTS, EASTERN REGION
ON SEPTEMBER 16, 1975, ADMINISTRATIVE LAW JUDGE MILTON KRAMER ISSUED
HIS REPORT AND RECOMMENDATION 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.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 30-5951(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
NOVEMBER 26, 1975
IN THE MATTER OF
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
EASTERN REGION
AND
NATIONAL ASSOCIATION OF AIR TRAFFIC
SPECIALISTS, EASTERN REGION
CLINTON WORTHLEY
REGIONAL DIRECTOR, NAATS
66 LEDGEWOOD DRIVE
SMITHTOWN, NEW YORK 11787
RUSSELL L. WEXLER
ADVISOR, EASTERN REGION, NAATS
JAMES E. EAGAN
CHIEF, LABOR RELATIONS BRANCH
FEDERAL AVIATION ADMINISTRATION
J.F.K. INTERNATIONAL AIRPORT
JAMAICA, NEW YORK 11430
BEFORE: MILTON KRAMER
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491 AS AMENDED. IT WAS
INITIATED BY A COMPLAINT DATED DECEMBER 2, 1974 AND FILED DECEMBER 9,
1974, ALLEGING VIOLATIONS OF SECTIONS 19(A)(1), (2), AND (4) OF THE
EXECUTIVE ORDER. THE COMPLAINT ALLEGED THAT ON OCTOBER 21, 1974, THE
RESPONDENT (BY MR. HAROLD PUROWITZ, FACILITY CHIEF, FLIGHT SERVICE
STATION/INTERNATIONAL FLIGHT SERVICE STATION, NEW YORK) THREATENED TO
GIVE MR. HAROLD BROWN (COMPLAINANT'S FACILITY REPRESENTATIVE) LEAVE
WITHOUT PAY FOR TARDINESS, AND ON OR ABOUT OCTOBER 24 DELIVERED A LETTER
DATED OCTOBER 22 (SUBJECT: TARDINESS) TO MR. BROWN ALLEGING NUMEROUS
INSTANCES OF TARDINESS, AND AT THAT TIME (OCTOBER 24, 1974) ACCUSED MR.
BROWN OF BREAKING AND ENTERING THE RESPONDENT'S OFFICES AND USING
RESPONDENT'S EQUIPMENT TO CONDUCT UNION BUSINESS. ON APRIL 7, 1975, AN
AMENDED COMPLAINT, DATED APRIL 3, 1975, WAS FILED ALLEGING THE SAME
CONDUCT AND ALLEGING THAT IT WAS IN VIOLATION OF SECTIONS 19(A)(1) AND
(2) OF THE EXECUTIVE ORDER.
ON DECEMBER 27, 1974, IN ACCORDANCE WITH AN EXTENSION OF TIME, THE
RESPONDENT FILED A RESPONSE TO THE ORIGINAL COMPLAINT DENYING IN PART
THE ALLEGATIONS OF THE COMPLAINT AND ALLEGING THAT THE REMAINDER WAS IN
THE NORMAL COURSE OF BUSINESS AND WAS UNRELATED TO MR. BORWN'S STATUS AS
THE COMPLAINANT'S FACILITY REPRESENTATIVE.
ON APRIL 16, 1975, THE ACTING ASSISTANT REGIONAL DIRECTOR ISSUED A
NOTICE OF HEARING TO BE HELD JUNE 10, 1975, AT THE J.F.K. INTERNATIONAL
AIRPORT, JAMAICA, NEW YORK. A HEARING WAS HELD BEFORE ME AT THAT PLACE
ON JUNE 10 AND 11, 1975. THE COMPLAINANT WAS REPRESENTED BY ITS
REGIONAL DIRECTOR AND THE RESPONDENT WAS REPRESENTED BY THE CHIEF LABOR
RELATIONS BRANCH, F.A.A., EASTERN REGION. BOTH SIDES EXAMINED AND
CROSS-EXAMINED WITNESSES AND INTRODUCED EXHIBITS. BOTH PARTIES WAIVED
CLOSING ARGUMENT.
AT THE CLOSE OF THE ORAL HEARING THE TIME FOR FILING BRIEFS WAS
EXTENDED TO JULY 14, 1975. THE COMPLAINANT FILED A BRIEF ON JULY 11,
1975 AND THE RESPONDENT ON JULY 16, 1975.
THE FEDERAL AVIATION ADMINISTRATION IS A COMPONENT OF THE DEPARTMENT
OF TRANSPORTATION. AMONG ITS FACILITIES ARE DOMESTIC FLIGHT SERVICE
STATIONS AND INTERNATIONAL FLIGHT SERVICE STATIONS. THE PRINCIPAL
FUNCTIONS OF FLIGHT SERVICE STATIONS ARE TO FURNISH INFORMATION TO
GENERAL AVIATION PILOTS CONCERNING WEATHER CONDITIONS IN THE VICINITY
AND EXPECTED DESTINATIONS AND EN ROUTE AND CONCERNING PHYSICAL
CONDITIONS AT AIRPORTS. IT IS A ROUND-THE-CLOCK OPERATION. IN
PERFORMING SUCH FUNCTIONS IT EMPLOYS PRIMARILY AIR TRAFFIC SPECIALISTS.
PRIOR TO JULY 21, 1974, IT HAD A DOMESTIC FLIGHT SERVICE STATION AT
MACARTHUR AIRPORT, ISLIP, LONG ISLAND, NEW YORK AND AN INTERNATIONAL
FLIGHT SERVICE STATION AT KENNEDY AIRPORT, JAMAICA, LONG ISLAND, NEW
YORK. ON THAT DATE THOSE TWO FACILITIES WERE COMBINED TO FORM THE NEW
YORK FSS/IFSS, THE FACILITY HERE INVOLVED.
HAROLD H. PUROWITZ HAS BEEN AN EMPLOYEE OF FAA SINCE SOME SUBSTANTIAL
TIME PRIOR TO 1974. HE BECAME FACILITY CHIEF OF THE DOMESTIC FLIGHT
SERVICE STATION AT ISLIP ABOUT JUNE 22, 1974 AND ON JULY 21, 1974 HE
BECAME FACILITY CHIEF OF THE NEW YORK FSS/IFSS. SAM YESSELMAN IS HIS
DEPUTY.
THE NATIONAL ASSOCIATION OF AIR TRAFFIC SPECIALISTS IS THE DULY
CERTIFIED EXCLUSIVE REPRESENTATIVE OF THE F.A.A. AIR TRAFFIC SPECIALISTS
IN THE EASTERN REGION OF F.A.A. IT HAS A COLLECTIVE BARGAINING
AGREEMENT WITH THE RESPONDENT FEDERAL AVIATION ADMINISTRATION, EASTERN
REGION WHICH HAS BEEN IN EFFECT SINCE SEPTEMBER 11, 1973. THERE WAS AN
ANTECEDENT AGREEMENT BETWEEN THE PARTIES.
HAROLD E. BROWN HAS BEEN EMPLOYED BY THE FEDERAL AVIATION
ADMINISTRATION SINCE APRIL 15, 1968, ALL OR MOST OF THE TIME AS AN AIR
TRAFFIC SPECIALIST. HE WAS EMPLOYED IN THAT CAPACITY AT ISLIP FROM
ABOUT MAY 1 TO ABOUT NOVEMBER 9, 1974. IN NOVEMBER 1974 HE WAS
TRANSFERRED TO THE FLIGHT SERVICE STATION AT TETERBORO, NEW JERSEY WHERE
HE HAD BEEN EMPLOYED WHEN HE INITIALLY WAS EMPLOYED BY F.A.A. IT WAS
WHILE HE WAS EMPLOYED AT ISLIP THAT PUROWITZ BECAME THE FACILITY CHIEF
AT THE DOMESTIC FLIGHT SERVICE STATION THERE AND LATER THE FACILITY
CHIEF OF THE COMBINED NEW YORK FSS/IFSS. BROWN AND PUROWITZ WERE NOT
EMPLOYED AT THE SAME FACILITY AT ANY OTHER TIME.
IN JULY 1974 BROWN BECAME THE COMPLAINANT'S ALTERNATE FACILITY
REPRESENTATIVE AT ISLIP AND ON SEPTEMBER 9 HE BECAME THE FACILITY
REPRESENTATIVE. ON OCTOBER 18, 1974 HE FILED A GRIEVANCE WITH PUROWITZ
CONCERNING THE TRAINING PROGRAM.
ON OR ABOUT OCTOBER 19, 1974, PUROWITZ ASKED YESSELMAN, HIS DEPUTY,
TO WORK UP THE TARDINESS AND SICK LEAVE RECORDS OF THE AIR TRAFFIC
SPECIALISTS. IT HAD BEEN THE POLICY OF PUROWITZ IN HIS PRIOR POSITIONS
TO HAVE A TABULATION OF SUCH RECORDS PREPARED APPROXIMATELY ANNUALLY.
YESSELMAN PREPARED A CHART SHOWING THE TARDINESS RECORDS OF THE
SPECIALISTS WHO HAD BEEN TARDY MORE THAN TWICE IN THE PERIOD FROM
SEPTEMBER 1 THROUGH OCTOBER 19. FOUR (OF THE APPROXIMATELY 45)
SPECIALISTS HAD REPORTED LATE MORE THAN TWICE IN THAT PERIOD. IT WAS
THE PRACTICE FOR A SPECIALIST TO REPORT FROM FIVE TO FIFTEEN MINUTES
BEFORE HIS OFFICIAL STARTING TIME TO BE BRIEFED ON WEATHER PATTERNS BY
THE PERSON HE WAS RELIEVING. A SPECIALIST ON DUTY CANNOT LEAVE AT THE
END OF HIS SHIFT UNLESS AND UNTIL HIS RELIEF APPEARS.
HAROLD E. BROWN WAS ONE OF THE FOUR WHOSE NAME APPEARED ON
YESSELMAN'S TABULATIONS. THE OTHER THREE HAD BEEN TARDY, RESPECTIVELY,
THREE TIMES FOR A TOTAL OF 18 MINUTES, THREE TIMES FOR A TOTAL OF 16
MINUTES, AND THREE TIMES FOR AN AGGREGATE OF 31 MINUTES. EACH OF THOSE
THREE WAS COUNSELLED ABOUT HIS TARDINESS BY PUROWITZ OR YESSELMAN.
HAROLD BROWN HAD BEEN TARDY SEVEN TIMES IN THE SAME PERIOD FOR AN
AGGREGATE OF 272 MINUTES. FIVE OF HIS TARDINESSES HAD BEEN FOR BETWEEN
FOUR AND NINE MINUTES EACH, BUT ONE WAS A TARDINESS OF TWO AND A HALF
HOURS AND ONE WAS A TARDINESS OF AN HOUR AND THREE-QUARTERS.
ON OCTOBER 21 PUROWITZ CALLED BROWN TO HIS OFFICE TO DISCUSS BROWN'S
RECORD OF TARDINESS. PUROWITZ TOLD BROWN THAT THE NEXT TIME HE WAS
TARDY HE WOULD BE ON LEAVE WITHOUT PAY FOR THE PERIOD OF TARDINESS. ON
OCTOBER 22 PUROWITZ PREPARED A MEMORANDUM TO BROWN CONFIRMING THEIR
DISCUSSION OF OCTOBER 21. BROWN WAS ON LEAVE ON OCTOBER 22 AND 23, AND
PUROWITZ DID NOT DELIVER THE MEMORANDUM TO BROWN UNTIL OCTOBER 24.
BARBARA PRINZ IS PUROWITZ'S SECRETARY. SHE USES A TYPEWRITER, OF
WHICH SHE IS FOND AND PROUD, WHICH HAS A QUITE UNUSUAL TYPE. SHE KNOWS
OF ONLY ONE OTHER TYPEWRITER IN THE F.A.A. THAT HAS THAT TYPE, A
TYPEWRITER IN THE TRAFFIC CONTROL CENTER IN LEESBURG, VIRGINIA. ON
OCTOBER 22 OR 23, 1974, SHE SAW A COPY OF A MEMORANDUM WRITTEN BY BROWN
AND ADDRESSED TO "ALL NAATS MEMBERS" THAT HAD BEEN POSTED ON THE
BULLETIN BOARD THAT APPEARED TO HER TO HAVE BEEN TYPEWRITTEN ON HER
TYPEWRITER. SHE CALLED IT TO THE ATTENTION OF PUROWITZ WHO ALSO THOUGHT
IT WAS TYPEWRITTEN ON PRINZ' TYPEWRITER. IN FACT, THE MEMORANDUM HAD
BEEN TYPEWRITTEN BY BROWN'S FIANCEE AT HER PLACE OF EMPLOYMENT (NOT IN
THE F.A.A.) AFTER WORKING HOURS.
PUROWITZ CALLED BROWN TO HIS OFFICE ON OCTOBER 24 TO GIVE BROWN HIS
MEMORANDUM OF OCTOBER 22 CONFIRMING THEIR DISCUSSION OF OCTOBER 21.
WHILE GIVING BROWN THE MEMORANDUM HE ASKED BROWN SOMETHING LIKE "DID YOU
USE BARBARA'S TYPEWRITER?" BROWN DENIED HAVING DONE SO, AND THAT WAS THE
END OF THE MATTER UNTIL THE UNFAIR-LABOR-PRACTICE CHARGE WAS SERVED.
BUT BROWN CONSTRUED THAT AS AN ACCUSATION THAT BROWN HAD BROKEN AND
ENTERED INTO PRINZ' OFFICE AFTER HER WORKING HOURS BECAUSE HE COULD NOT
HAVE USED HER TYPEWRITER DURING WORKING HOURS, HER OFFICE WAS LOCKED AT
OTHER TIMES, AND BROWN DID NOT HAVE ACCESS TO A KEY TO HER OFFICE.
PUROWITZ DID NOT INTEND HIS QUESTION AS AN ACCUSATION OF BREAKING AND
ENTERING.
THERE IS CONSIDERABLE EVIDENCE IN THE RECORD CONCERNING CLAIMED
MISCONDUCT OF THE RESPONDENT THAT IS IRRELEVANT TO THE CLAIMED
MISCONDUCT ALLEGED IN THE COMPLAINT.
THE FIRST PARAGRAPH OF THE "BASIS OF THE COMPLAINT" ALLEGES THAT
PUROWITZ THREATENED TO GIVE BROWN LEAVE WITHOUT PAY FOR TARDINESS. SUCH
ALLEGATION WAS PROVEN; INDEED, IT WAS ADMITTED BY PUROWITZ. BUT
STANDING ALONE SUCH CONDUCT DOES NOT SHOW A VIOLATION OF THE EXECUTIVE
ORDER.
IT IS ONLY BY AN EXTREMELY LIBERAL READING OF THE COMPLAINT THAT IT
CAN BE FOUND TO ALLEGE THAT SUCH THREAT WAS MADE BECAUSE BROWN WAS A
UNION OFFICIAL OR BECAUSE BROWN AS A UNION OFFICIAL HAD FILED A
GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE. BUT EVEN IF WE SO
READ IT, SUCH AN ALLEGATION WAS NOT PROVEN.
TO BE SURE, THE THREAT FOLLOWED HARD ON BROWN FILING A GRIEVANCE ON
OCTOBER 18, 1974. BUT THERE IS NOTHING EVEN TO INDICATE THAT THE THREAT
WAS MOTIVATED BY THE FILING OF THE GRIEVANCE OTHER THAN THE FALLACIOUS
REASONING OF POST HOC ERGO PROPTER HOC. THAT IS NOT ENOUGH.
THE FACT THAT BROWN WAS THREATENED WITH LEAVE WITHOUT PAY FOR
TARDINESS WHILE THREE OTHER SPECIALISTS, WHO LIKE BROWN HAD BEEN TARDY
MORE THAN TWICE IN THE RELEVANT PERIOD, WERE ONLY COUNSELED, DOES NOT
PROVE THAT BROWN WAS THREATENED BECAUSE OF HIS UNION STATUS OR
ACTIVITIES. THOSE THREE HAD BEEN TARDY THREE TIMES EACH, ONE FOR AN
AGGREGATE OF 16 MINUTES, ONE FOR AN AGGREGATE OF 18 MINUTES, AND THE
THIRD FOR AN AGGREGATE OF 31 MINUTES. BROWN WAS TARDY IN THE SAME
PERIOD SEVEN TIMES FOR AN AGGREGATE OF 272 MINUTES, ONCE BY TWO AND A
HALF HOURS AND ONCE BY AN HOUR AND THREE QUARTERS. SUCH A DIFFERENCE IN
DEGREE JUSTIFIED AND EXPLAINS THE DIFFERENT TREATMENT. PUNCTUALITY IS
IMPORTANT IN THE WORK OF AN AIR TRAFFIC SPECIALIST. THE OPERATION THEY
PERFORM IS CONDUCTED AROUND THE CLOCK, AND A SPECIALIST COMPLETING HIS
SHIFT CANNOT LEAVE UNTIL ANOTHER SPECIALIST REPORTS TO TAKE OVER. IN
FACT, IT IS CUSTOMARY FOR A SPECIALIST TO REPORT FROM FIVE TO FIFTEEN
MINUTES BEFORE HIS OFFICIAL SHIFT BEGINS, TO BE BRIEFED ON WEATHER
PATTERNS BY THE SPECIALIST HE IS RELIEVING. SUCH A PRACTICE MAY REQUIRE
THESE MEN TO WORK EXTRA TIME WITHOUT COMPENSATION BUT THAT IS A PROBLEM
WITH WHICH EXECUTIVE ORDER 11491 DOES NOT DEAL.
THE SECOND PARAGRAPH OF THE "BASIS OF THE COMPLAINT" ALLEGES THAT
PUROWITZ ACCUSED BROWN OF BREAKING AND ENTERING F.A.A. OFFICES TO USE
F.A.A. EQUIPMENT FOR UNION BUSINESS. PUROWITZ DID NOT USE LANGUAGE THAT
WAS DIRECTED ACCUSATORY, AND SAID NOTHING ABOUT BREAKING AND ENTERING.
BROWN CONSTRUED IT AS AN ACCUSATION OF BREAKING AND ENTERING BECAUSE HE
THOUGHT HE COULD NOT HAVE USED PRINZ' TYPEWRITER WITHOUT BREAKING AND
ENTERING.
THIS ITEM IN THE COMPLAINT APPEARS TO HAVE BEEN THE RESULT MORE OF A
MISUNDERSTANDING THAN OF ANYTHING ELSE. THE COMPLAINT ALLEGES A
VIOLATION OF SECTIONS 19(A)(1) AND (2) OF THE EXECUTIVE ORDER. THIS
ITEM IN THE COMPLAINT CLEARLY WAS NOT A VIOLATION OF SECTION 19(A)(2).
IT HAD NOTHING TO DO WITH DISCRIMINATION IN CONDITIONS OF EMPLOYMENT.
AND EVEN IF IT WERE AN ACCUSATION, AND A FALSE ACCUSATION, NOTHING WAS
DONE ABOUT IT. IT COULD HAVE, BUT NOT NECESSARILY HAVE, INTERFERED WITH
BROWN'S EXERCISE OF RIGHTS ASSURED BY THE EXECUTIVE ORDER, AND HENCE A
VIOLATION OF SECTION 19(A)(1), ONLY IF BROWN WERE IMAGINATIVE AND
HYPERSENSITIVE. AND EVEN IF IT WERE A FALSE ACCUSATION, IT WAS ONLY
COINCIDENTAL THAT IT PERTAINED TO BROWN'S ACTIVITIES AS A UNION
REPRESENTATIVE. THE ACCUSATION, IF THERE WAS ONE, WOULD HAVE BEEN THE
SAME IF IT HAD RELATED TO A MEMORANDUM BROWN HAD ADDRESSED TO HIS CIVIC
ASSOCIATION OR HIS BOWLING TEAM OR HIS RELIGIOUS GROUP.
I CONCLUDE, PRIMARILY, THAT NO SUCH ACCUSATION WAS IN FACT MADE,
WHATEVER BROWN UNDERSTOOD. I CONCLUDE ALSO THAT IF IT HAD BEEN MADE,
THERE WAS INSUFFICIENT NEXUS BETWEEN THE ACCUSATION AND UNION ACTIVITY
TO CONSTITUTE A VIOLATION OF SECTION 19(A)(1) OF THE EXECUTIVE ORDER.
I RECOMMEND THAT THE COMPLAINT BE DISMISSED.
DATED: SEPTEMBER 16, 1975
WASHINGTON, D.C.
5 A/SLMR 584; P. 712; CASE NO. 72-5273(AC); NOVEMBER 26, 1975.
DEPARTMENT OF THE NAVY,
NAVAL UNDERSEA CENTER,
SAN DIEGO, CALIFORNIA
A/SLMR NO. 584
THIS CASE INVOLVED A PETITION FOR AMENDMENT OF CERTIFICATION FILED BY
THE DEPARTMENT OF THE NAVY, NAVAL UNDERSEA CENTER, SAN DIEGO,
CALIFORNIA, (ACTIVITY).
BY ITS PETITION THE ACTIVITY SOUGHT TO AMEND THE DESIGNATION OF THE
ACTIVITY AND TO AMEND THE DESIGNATION OF THE LOCATIONS OF THE COVERED
EMPLOYEES TO REFLECT CHANGES PRECIPITATED BY A REORGANIZATION. THE
EXCLUSIVE REPRESENTATIVE, THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1478 (NFFE), AGREED WITH THE PROPOSED AMENDMENTS.
AS THE EVIDENCE REFLECTED THAT FOLLOWING THE CLOSING OF ONE LOCATION
CONTAINING UNIT EMPLOYEES THE UNIT EMPLOYEES AT THE THREE REMAINING
LOCATIONS CONTINUED TO PERFORM THE SAME FUNCTIONS, THE ASSISTANT
SECRETARY, NOTING THE AGREEMENT OF THE PARTIES, AMENDED THE
CERTIFICATION TO REFLECT THE REQUESTED CHANGES.
DEPARTMENT OF THE NAVY,
NAVAL UNDERSEA CENTER,
SAN DIEGO, CALIFORNIA
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1478
UPON PETITIONS /1/ DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER
11491, AS AMENDED, A CONSOLIDATED HEARING WAS HELD BEFORE HEARING
OFFICER ELEANOR M. HASKELL. THE HEARING OFFICER'S RULINGS MADE AT THE
HEARING ARE FREE FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THE SUBJECT CASE, THE ASSISTANT SECRETARY
FINDS:
THE ACTIVITY FILED THE SUBJECT PETITION FOR AMENDMENT OF
CERTIFICATION SEEKING TO AMEND THE DESIGNATION OF THE ACTIVITY AND THE
ORGANIZATIONAL LOCATIONS OF THE UNIT AS SET FORTH IN THE CERTIFICATION
OF REPRESENTATIVE. /2/ IN THIS REGARD, THE ACTIVITY PROPOSES THAT THE
CERTIFICATION BE AMENDED TO READ AS FOLLOWS:
ALL EMPLOYEES OF THE NAVAL UNDERSEA CENTER, SAN DIEGO, CALIFORNIA,
WORKING AT THE
FACILITIES AT MORRIS DAM, THE LONG BEACH NAVAL SUPPORT ACTIVITY, AND
SAN CLEMENTE ISLAND,
CALIFORNIA, EXCLUDING MANAGERS, SUPERVISORS, GUARDS, PERSONS
PERFORMING PERSONNEL WORK EXCEPT
IN A PURELY CLERICAL CAPACITY, PROFESSIONAL EMPLOYEES, TEMPORARY
EMPLOYEES, AND WAGE GRADE
EMPLOYEES ON SAN CLEMENTE ISLAND. /3/
THE PARTIES AGREED ON THE APPROPRIATENESS OF THE PROPOSED AMENDMENT
OF THE CERTIFICATION. THE RECORD REVEALS THAT EFFECTIVE JUNE 9, 1972,
THE DESIGNATION OF THE ACTIVITY WAS CHANGED FROM NAVAL UNDERSEA RESEARCH
AND DEVELOPMENT CENTER TO NAVAL UNDERSEA CENTER. REGARDING THE
DESIGNATION OF THE ORGANIZATIONAL LOCATIONS, THE EVIDENCE DISCLOSES THAT
PRIOR TO APRIL 1973, THE UNIT IN QUESTION ENCOMPASSED EMPLOYEES OF THE
ACTIVITY'S FACILITIES AT PASADENA, MORRIS DAM, LONG BEACH AND SAN
CLEMENTE ISLAND, CALIFORNIA. EFFECTIVE MAY 3, 1974, A REORGANIZATION
RESULTED IN THE CLOSING OF THE PASADENA FACILITY AND TRANSFER OF MOST OF
ITS EMPLOYEES TO A FACILITY IN SAN DIEGO, CALIFORNIA. REMAINING AT THE
SAME PHYSICAL LOCATIONS WERE UNIT EMPLOYEES AT THE MORRIS DAM, LONG
BEACH, AND SAN CLEMENTE ISLAND FACILITIES WHO CONTINUED TO PERFORM THE
SAME FUNCTIONS AS THEY PERFORMED PRIOR TO THE REORGANIZATION. FURTHER,
THE RECORD REVEALS THAT SINCE THE DATE OF CERTIFICATION THESE EMPLOYEES
HAVE BEEN REPRESENTED CONTINUOUSLY BY THE NFFE.
ACCORDINGLY, CONSISTENT WITH THE PARTIES' AGREEMENT, I SHALL ORDER
THAT THE PRIOR CERTIFICATION BE AMENDED TO CONFORM TO THE EXISTING
CIRCUMSTANCES RESULTING FROM THE CHANGE IN THE DESIGNATION OF THE
ACTIVITY AND THE CHANGE IN THE DESIGNATION OF THE EXCLUSIVELY RECOGNIZED
UNIT'S LOCATIONS PRECIPITATED BY THE REORGANIZATION.
IT IS HEREBY ORDERED THAT THE CERTIFICATION GRANTED TO THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1478, ON DECEMBER 30, 1970, BE,
AND IT HEREBY IS, AMENDED BY SUBSTITUTING THEREIN AS THE DESIGNATION OF
THE ACTIVITY, NAVAL UNDERSEA CENTER, SAN DIEGO, CALIFORNIA, FOR NAVAL
UNDERSEA RESEARCH AND DEVELOPMENT CENTER, 3202 E. FOOTHILL BLVD.,
PASADENA, CALIFORNIA, AND BY SUBSTITUTING AS THE DESIGNATION OF THE
UNIT'S LOCATIONS, THE FACILITIES AT MORRIS DAM, THE LONG BEACH NAVAL
SUPPORT ACTIVITY, AND SAN CLEMENTE ISLAND, CALIFORNIA.
DATED, WASHINGTON, D.C.
NOVEMBER 25, 1975
/1/ DURING THE HEARING, THE INTERNATIONAL ASSOCIATION OF FIRE
FIGHTERS, LOCAL F-33, REQUESTED WITHDRAWAL OF ITS RO PETITION PREVIOUSLY
FILED IN CASE NO. 72-5168(RO) AND CONSOLIDATED FOR HEARING WITH THE
SUBJECT PETITION. THE WITHDRAWAL REQUEST SUBSEQUENTLY WAS APPROVED BY
THE ASSISTANT REGIONAL DIRECTOR.
/2/ ON DECEMBER 30, 1970, THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1478, HEREIN CALLED NFFE, WAS CERTIFIED AS THE
EXCLUSIVE REPRESENTATIVE IN A UNIT OF ALL WAGE GRADE AND GENERAL
SCHEDULE EMPLOYEES SERVICED BY THE CIVILIAN PERSONNEL OFFICE, NAVAL
UNDERSEA RESEARCH AND DEVELOPMENT CENTER, 3202 E. FOOTHILL BLVD.,
PASADENA, CALIFORNIA, EXCLUDING MANAGERS, SUPERVISORS, GUARDS, PERSONS
PERFORMING PERSONNEL WORK EXCEPT IN A PURELY CLERICAL CAPACITY,
PROFESSIONAL EMPLOYEES, TEMPORARY EMPLOYEES, EMPLOYEES WITH DUTY
STATIONS AT SAN DIEGO, CALIFORNIA, AND WAGE GRADE EMPLOYEES ON SAN
CLEMENTE ISLAND.
/3/ THE NFFE CURRENTLY REPRESENTS EXCLUSIVELY A UNIT OF WAGE GRADE
EMPLOYEES AT THE ACTIVITY'S FACILITY ON SAN CLEMENTE ISLAND.
5 A/SLMR 583; P. 706; CASE NO. 22-5570(CA); NOVEMBER 26, 1975.
GENERAL SERVICES ADMINISTRATION,
REGION 3, PUBLIC BUILDINGS SERVICE,
CENTRAL SUPPORT FIELD OFFICE
A/SLMR NO. 583
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2151, AFL-CIO,
(COMPLAINANT) ALLEGING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND
(6) OF THE ORDER BY ITS UNILATERAL CHANGE IN ITS PAST PRACTICE OF
PERMITTING UNRESTRICTED EMPLOYEE PARKING.
NOTING THAT INFORMING A STEWARD AS AN AFFECTED EMPLOYEE OF A CHANGE
IN WORKING CONDITIONS DID NOT SATISFY THE RESPONDENT'S OBLIGATION TO
GIVE NOTICE TO THE COMPLAINANT CONCERNING A PROPOSED CHANGE IN WORKING
CONDITIONS, THE ASSOCIATE CHIEF ADMINISTRATIVE LAW JUDGE FOUND THAT THE
RESPONDENT, BY ITS JUNE 26, 1974, NOTICE TO EMPLOYEES, EFFECTED CHANGES
IN WORKING CONDITIONS WITHOUT PRIOR BARGAINING WITH THE COMPLAINANT IN
VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER. ADDITIONALLY, THE
ASSOCIATE CHIEF ADMINISTRATIVE LAW JUDGE DISMISSED THE ALLEGATION, FIRST
RAISED AT THE HEARING, THAT THE RESPONDENT'S UNILATERAL PROMULGATION OF
A POLICY CONTAINED IN A NOVEMBER 12, 1973, MEMO CONSTITUTED AN
ADDITIONAL VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER AS THE
ISSUANCE OF THE NOVEMBER 12, 1973, MEMO OCCURRED MORE THAN NINE MONTHS
BEFORE THE FILING OF THE COMPLAINT IN THIS MATTER.
UPON CONSIDERATION OF THE ASSOCIATE CHIEF ADMINISTRATIVE LAW JUDGE'S
REPORT AND RECOMMENDATIONS, AND THE ENTIRE RECORD IN THIS CASE,
INCLUDING THE COMPLAINANT'S EXCEPTIONS, THE ASSISTANT SECRETARY ADOPTED
THE ASSOCIATE CHIEF ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS. ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE
RESPONDENT CEASE AND DESIST FROM THE CONDUCT FOUND VIOLATIVE OF THE
ORDER AND THAT IT TAKE CERTAIN AFFIRMATIVE ACTIONS.
GENERAL SERVICES ADMINISTRATION,
REGION 3, PUBLIC BUILDINGS SERVICE,
CENTRAL SUPPORT FIELD OFFICE
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2151, AFL-CIO
ON AUGUST 7, 1975, ASSOCIATE CHIEF ADMINISTRATIVE LAW JUDGE JOHN H.
FENTON ISSUED HIS REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED
PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR
LABOR PRACTICES AND RECOMMENDING THAT IT TAKE CERTAIN AFFIRMATIVE ACTION
AS SET FORTH IN THE ATTACHED ASSOCIATE CHIEF ADMINISTRATIVE LAW JUDGE'S
REPORT AND RECOMMENDATIONS. THEREAFTER, THE COMPLAINANT FILED
EXCEPTIONS AND A SUPPORTING BRIEF WITH RESPECT TO THE ASSOCIATE CHIEF
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS. THE RESPONDENT,
ON THE OTHER HAND, DID NOT FILE EXCEPTIONS.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE ASSOCIATE
CHIEF ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS THAT NO
PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON
CONSIDERATION OF THE ASSOCIATE CHIEF ADMINISTRATIVE LAW JUDGE'S REPORT
AND RECOMMENDATIONS AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING
THE COMPLAINANT'S EXCEPTIONS AND SUPPORTING BRIEF, I HEREBY ADOPT THE
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE ASSOCIATE CHIEF
ADMINISTRATIVE LAW JUDGE, TO THE EXTENT CONSISTENT HEREWITH.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE RULES AND REGULATIONS, THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE GENERAL
SERVICES ADMINISTRATION, REGION 3, PUBLIC BUILDINGS SERVICE, CENTRAL
SUPPORT FIELD OFFICE, WASHINGTON, D.C., SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING CHANGES IN ITS POLICY OF PERMITTING UNRESTRICTED
PARKING OF ITS EMPLOYEES' PRIVATE VEHICLES ON GOVERNMENT PROPERTY
WITHOUT FIRST MEETING AND CONFERRING WITH THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2151, AFL-CIO, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED THEM BY THE
EXECUTIVE ORDER.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) UPON REQUEST, MEET AND CONFER WITH THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2151, AFL-CIO, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES, WITH RESPECT TO CHANGES IN ITS POLICY
OF PERMITTING UNRESTRICTED PARKING OF ITS EMPLOYEES' PRIVATE VEHICLES ON
GOVERNMENT PROPERTY.
(B) POST AT ITS FACILITIES THROUGHOUT THE CENTRAL SUPPORT FIELD
OFFICE COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE
FURNISHED BY THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT
RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
MANAGER OF THE CENTRAL SUPPORT FIELD OFFICE 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 MANAGER SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.27 OF THE REGULATIONS NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
NOVEMBER 26, 1975
WE WILL NOT INSTITUTE CHANGES IN THE POLICIES OF PERMITTING
UNRESTRICTED PARKING OF OUR EMPLOYEES' PRIVATE VEHICLES ON GOVERNMENT
PROPERTY WITHOUT FIRST MEETING AND CONFERRING WITH THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2151, AFL-CIO, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES.
WE WILL, UPON REQUEST, MEET AND CONFER WITH THE AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, LOCAL 2151, AFL-CIO, WITH RESPECT TO CHANGES IN
THE POLICY OF PERMITTING UNRESTRICTED PARKING OF OUR EMPLOYEES' PRIVATE
VEHICLES ON GOVERNMENT PROPERTY.
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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR, WHOSE ADDRESS IS: 14120 GATEWAY BUILDING, 3535 MARKET STREET,
PHILADELPHIA, PENNSYLVANIA 19104.
IN THE MATTER OF
GENERAL SERVICES ADMINISTRATION,
REGION 3, PUBLIC BUILDINGS SERVICE,
CENTRAL SUPPORT FIELD OFFICE
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2151, AFL-CIO
CHARLES I. LIBURD
LABOR MANAGEMENT RELATIONS OFFICER
GENERAL SERVICES ADMINISTRATION
REGION 3
WILLIAM WALDENMAIER
NATIONAL REPRESENTATIVE
DISTRICT 14, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
BEFORE: JOHN H. FENTON
THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491. NOTICE OF HEARING
WAS ISSUED ON NOVEMBER 22, 1974, BY THE ASSISTANT REGIONAL DIRECTOR FOR
LABOR-MANAGEMENT SERVICES, PHILADELPHIA REGION, BASED ON A COMPLAINT
FILED ON OCTOBER 10 BY COMPLAINANT ALLEGING THAT RESPONDENT VIOLATED
SECTIONS 19(A)(1) AND (6) OF THE ORDER BY ANNOUNCING AND ENFORCING
CHANGES IN ITS PARKING POLICY AT ITS FACILITY LOCATED AT 10 P STREET,
S.W., WASHINGTON, D.C., WITHOUT CONSULTING WITH COMPLAINANT, THE
RECOGNIZED REPRESENTATIVE OF THE AFFECTED EMPLOYEES.
A HEARING WAS HELD ON JANUARY 28, 1975, IN WASHINGTON, D.C. ALL
PARTIES WERE AFFORDED AN OPPORTUNITY TO BE HEARD, TO EXAMINE AND
CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE. UPON THE BASIS OF
THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR
DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW AND
RECOMMENDATIONS:
ON NOVEMBER 12, 1973, THE CHIEF, SPECIAL SERVICES BRANCH, GSA, ISSUED
A MEMORANDUM TO SUBORDINATE CHIEFS CONCERNING THE INSPECTION AND CONTROL
OF PRIVATE VEHICLES. IN RELEVANT RESPECT IT ANNOUNCED AT PARAGRAPH 2
THE FOLLOWING RESTRICTIONS UPON PARKING FOR PRIVATE VEHICLES:
10 P STREET, S.W.-- NO PARKING OF PRIVATE VEHICLES WILL BE ALLOWED .
. . INSIDE THE
FENCING. FULL USE IS EXPECTED OF THE AREAS OUTSIDE . . . THE
FENCING. PARKING SPACES ARE TO
BE MARKED AND ASSIGNMENT CONTROLLED. /1/
AT THAT TIME THE APPROXIMATELY 175 EMPLOYEES INVOLVED HEREIN WERE
ASSIGNED TO THE NAVY YARD. IN LATE JANUARY 1974 THEIR RELOCATION TO 10
P STREET BEGAN IN ORDER TO CONSOLIDATE 12 DIFFERENT SHOPS IN ONE
FACILITY. IT WAS STAGGERED ON A SHOP BY SHOP BASIS, AND WAS NOT
COMPLETED UNTIL MARCH. IN ADDITION, IN MARCH OVER 100 TRUCKS WERE MOVED
INTO THE ENCLOSURE.
BECAUSE OF THE STAGGERED NATURE OF THE RELOCATION, THERE WAS IN ITS
EARLIER STAGES AMPLE ROOM FOR ALL PRIVATE VEHICLES. THE NOVEMBER 12
MEMO WAS THEREFORE IGNORED, AND UNRESTRICTED PARKING WAS PERMITTED. AS
THE SHIFT OF PERSONNEL NEARED COMPLETION, AND PARTICULARLY UPON THE
ARRIVAL OF THE TRUCKS, THERE NO LONGER WAS ROOM TO ACCOMMODATE ALL, AND
THE MOVEMENT OF OFFICIAL TRUCKS WAS IMPEDED. ACTING BUILDING MANAGER
WILLARD MEYER THEREFORE ISSUED PERMITS TO THE SHOPS, FOR ALLOCATION OF A
LIMITED NUMBER OF SPACES TO KEY PERSONNEL, AND CAUSED HIS SUPERVISORS TO
INSTRUCT ALL OTHER PERSONNEL THAT THE POLICY AGAINST THE PARKING OF
PRIVATE VEHICLES WITHIN THE ENCLOSURE WOULD BE ENFORCED. IT APPEARS
THAT SUCH ALLOCATION OF SPACES WAS NOT MADE BY REFERENCE TO ANY
OUTSTANDING GSA REGULATION SETTING PRIORITIES IN THAT AREA. IN
ADDITION, THIS LIMITED ALLOCATION, LIKE THE EARLIER FREE ACCESS, WAS
VIOLATIVE OF THE NOVEMBER 12 MEMO. SOME PERSONNEL, FEELING THESE
RESTRICTIONS TO BE AN UNFAIR AND UNWARRANTED DEPARTURE FROM THE EARLIER
POLICY, DISREGARDED THE INSTRUCTIONS. THERE WAS THEREFORE A CONTINUING
IMPEDIMENT TO THE USE OF OFFICIAL VEHICLES. THROUGHOUT THIS TIME, NO
UNION OFFICIALS WERE TOLD OF THESE CHANGES, EXCEPT AS AT LEAST ONE SHOP
STEWARD RECEIVED THE SAME WARNING RECEIVED BY ALL OTHER EMPLOYEES.
FINALLY, IN ORDER TO CORRECT THE CONTINUING DISREGARD OF SUPERVISOR'S
INSTRUCTIONS, MR. MEYER ON JUNE 26, 1974, ISSUED A NOTICE TO ALL
EMPLOYEES. IT ANNOUNCED THAT, BEGINNING ON JULY 1,
. . . PARKING WITHIN THE FENCED AREA ON THE WEST SIDE OF "P" STREET,
S.W., AND THE AREA
ADJACENT TO THE BUILDING AND FENCE ON "P" STREET WILL BE RESTRICTED
TO VEHICLES DISPLAYING
SPECIAL RESERVED PARKING TICKETS. VEHICLES PARKING IN THESE POSTED
SPACES WILL BE TICKETED.
AGAIN, NO UNION OFFICER WAS MADE AWARE OF MANAGEMENT'S DECISION TO
STRICTLY ENFORCE A POLICY OF EXCLUDING PRIVATE VEHICLES WITHOUT PERMITS
FROM THE ENCLOSURE.
COMPLAINANT CONTENDED IN ITS COMPLAINT THAT RESPONDENT VIOLATED
SECTIONS 19(A)(1) AND (6) BY ITS ISSUANCE OF THE JUNE 26 NOTICE, WHICH
CONSTITUTED AN UNILATERAL CHANGE IN ITS PAST PRACTICE OF PERMITTING
UNRESTRICTED PARKING. IN ITS CLOSING ARGUMENT AND ITS BRIEF, THE
COMPLAINANT ADDED CONTENTIONS THAT PROMULGATION OF THE NOVEMBER 12 MEMO,
AND THE SUBSEQUENT ESTABLISHMENT OF CRITERIA FOR AN ALLOCATION OF
PARKING AT THE P STREET FACILITY WERE FURTHER UNILATERAL ACTS VIOLATIVE
OF SECTIONS 19(A)(1) AND (6).
RESPONDENTS DEFENSE IN ESSENCE IS THAT THE JUNE 26 NOTICE WAS A
REAFFIRMATION OF THE POLICY EXPRESSED IN THE NOVEMBER 12 MEMO, WHICH
FOLLOWED UPON A BRIEF PERIOD DURING WHICH ENFORCEMENT OF THE POLICY
EXPRESSED IN THE LATTER WOULD HAVE SERVED NO PRACTICAL PURPOSE, AND
THERE WAS NO OBLIGATION TO CONSULT CONCERNING REESTABLISHMENT OF THE
PRE-EXISTING CONDITION OF EMPLOYMENT. IT FURTHER ARGUES THAT, IF THERE
EXISTED A DUTY TO CONSULT, IT WAS DISCHARGED WHEN THE VARIOUS
SUPERVISORS ORALLY INFORMED STEWARDS OF ITS INTENTION TO ENFORCE THE
PROHIBITION OF PRIVATE PARKING WITHIN THE ENCLOSURE.
PARKING PRIVILEGES ARE CLEARLY WORKING CONDITIONS CONCERNING WHICH
MANAGEMENT UNDER SECTION 11(A) HAS AN OBLIGATION TO MEET AND CONFER IN
GOOD FAITH WITH THE BARGAINING REPRESENTATIVE. HERE, THE POLICY
RESPECTING THE P STREET FACILITY ENUNCIATED IN THE NOVEMBER 12, 1973
MEMO IS IMMUNE FROM ATTACK AS A UNILATERAL ESTABLISHMENT OF A PARKING
POLICY BECAUSE IT OCCURRED MORE THAN 9 MONTHS BEFORE THE COMPLAINT WAS
FILED. THE JUNE 26 NOTICE TO EMPLOYEES, TO WHICH THE COMPLAINT WAS
ADDRESSED CONSTITUTED A CHANGE IN THAT POLICY, IN THAT IT PERMITTED
PRIVATE PARKING BY PERMIT. IT ALSO CONSTITUTED A CHANGE, IN THE INTERIM
POLICY OF UNRESTRICTED PARKING. THUS, UNLESS THERE IS MERIT TO
RESPONDENT'S ARGUMENT THAT NOTICE TO AN AFFECTED STEWARD SATISFIED THE
OBLIGATION TO GIVE NOTICE TO THE UNION, RESPONDENT FAILED TO PROVIDE THE
UNION WITH AN OPPORTUNITY FOR GOOD FAITH CONSULTATION BEFORE EFFECTING
THE CHANGE. I CONCLUDE THAT INFORMING STEWARDS, LIKE ALL OTHER
EMPLOYEES, THAT THEIR WORKING CONDITIONS ARE ABOUT TO CHANGE DOES NOT
SATISFY THAT OBLIGATION. HERE IT IS CLEAR THAT NO AGENT OF RESPONDENT
EVER APPROACHED ANY AGENT OF THE UNION, IN HIS CAPACITY AS AN AGENT OF
THE UNION, TO PROPOSE A CHANGE. I DO NOT REGARD THE GREAT LAKES NAVAL
HOSPITAL /2/ DECISION AS CONTROLLING. THERE, THE NOTICE, LIKE THE
NOTICE HERE, WAS CLEARLY NOT INTENDED TO BE AN INVITATION TO BARGAINING,
BUT IT WAS ADDRESSED TO THE UNION PRESIDENT AS AN AFFECTED EMPLOYEE, AND
THE ASSISTANT SECRETARY FOUND IT CONSTITUTED NOTICE TO THE UNION.
STEWARDS OCCUPY THE LOWEST LEVEL OF A LABOR ORGANIZATION'S HIERARCHY.
ABSENT EVIDENCE THAT STEWARDS HAVE REGULARLY BEEN USED AS CONDUITS OF
SUCH INFORMATION TO HIGHER UNION OFFICIALS, I WOULD NOT FIND MERE NOTICE
TO A STEWARD, WITHOUT ANY INDICATION THAT MANAGEMENT WAS RECEPTIVE TO
CONSULTATION ON THE ISSUE, AS SUFFICIENT TO SATISFY MANAGEMENT'S
OBLIGATION TO GIVE NOTICE TO THE UNION. TO HOLD OTHERWISE WOULD REQUIRE
THE CONCLUSION THAT AGENCY ACTION AFFECTING WORKING CONDITIONS IS NOT
UNILATERAL AND THEREFORE UNLAWFUL, EVEN THOUGH TAKEN WITH NO INTENTION
OF RECOGNIZING THE UNION'S ROLE AS EXCLUSIVE BARGAINING REPRESENTATIVE,
SO LONG AS SOME STEWARD COULD BE CHARGED WITH ACTUAL OR CONSTRUCTIVE
KNOWLEDGE OF MANAGEMENT'S PLANS, IN A TIME FRAME WHICH WOULD AFFORD A
REASONABLE OPPORTUNITY FOR MEANINGFUL CONSULTATION UPON APPROPRIATE
REQUEST. WHILE THE ELEMENT OF GOOD FAITH INTENTION TO DISCLOSE PLANS TO
THE BARGAINING REPRESENTATIVE WAS APPARENTLY NOT PRESENT IN THE GREAT
LAKES NAVAL HOSPITAL CASE, NOTICE WAS THERE PROVIDED TO THE UNION'S
CHIEF EXECUTIVE OFFICER. TO PERMIT THE MERE KNOWLEDGE OF A STEWARD TO
RENDER PRIVILEGED WHAT WOULD OTHERWISE BE UNILATERAL CONDUCT ON THE PART
OF AN AGENCY WOULD TEND TO MAKE A GAME OF THE OBLIGATIONS IMPOSED BY
SECTION 11(A), AND WOULD HARDLY CONTRIBUTE TO HARMONIOUS LABOR RELATIONS
IN GOVERNMENT.
I THEREFORE CONCLUDE THAT RESPONDENT, BY ITS JUNE 26 NOTICE, EFFECTED
CHANGES IN ITS PARKING POLICY WITHOUT PRIOR CONSULTATION WITH THE UNION,
IN VIOLATION OF SECTION 19(A)(6) OF THE ORDER. I FURTHER FIND THAT SUCH
ACTION TENDS TO INTERFERE WITH, RESTRAIN OR COERCE EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY THE ORDER, IN VIOLATION OF SECTION
19(A)(1). /3/ AS INDICATED EARLIER, COMPLAINANTS' CONTENTION AT THE
HEARING THAT THE NOVEMBER 12, 1973 MEMO WAS UNILATERALLY PROMULGATED IS
REJECTED BECAUSE IT OCCURRED MORE THAN NINE MONTHS BEFORE THE COMPLAINT
WAS FILED. /4/
UPON THE BASIS OF THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF
LAW AND PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED,
AND SECTION 103.25(B) OF THE RULES AND REGULATIONS, I RECOMMEND THAT THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS ADOPT THE
FOLLOWING ORDER DESIGNED TO EFFECTUATE THE POLICIES OF EXECUTIVE ORDER
11491, AS AMENDED.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE RULES AND REGULATIONS, THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE GENERAL
SERVICES ADMINISTRATION, REGION 3, PUBLIC BUILDINGS SERVICE, CENTRAL
SUPPORT FIELD OFFICE, WASHINGTON, D.C., SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY CHANGING ITS POLICY WITH RESPECT TO THE PARKING OF
EMPLOYEES' VEHICLES ON GOVERNMENT PROPERTY, OR ANY OTHER CONDITION OF
EMPLOYMENT WITHOUT FIRST CONFERRING OR NEGOTIATING WITH LOCAL 2151,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES OR ANY OTHER EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES.
IN ANY LIKE OR RELATED MANNER INTERFERRING WITH, RESTRAINING OR
COERCING EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED THEM BY THE
EXECUTIVE ORDER.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) UPON REQUEST, CONSULT, CONFER, OR NEGOTIATE WITH LOCAL 2151,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES OR ANY OTHER EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES WITH RESPECT TO CHANGES IN ITS POLICY
WITH RESPECT TO THE PARKING OF EMPLOYEES' VEHICLES ON GOVERNMENT
PROPERTY.
(B) POST AT ITS FACILITIES THROUGHOUT THE CENTRAL SUPPORT FIELD
OFFICE COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE
FURNISHED BY THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT
RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
MANAGER OF THE CENTRAL SUPPORT FIELD OFFICE 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 MANAGER SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.26 OF THE REGULATIONS NOTIFY THE
ASSISTANT SECRETARY IN WRITING, WITHIN TWENTY (20) DAYS FROM THE DATE OF
THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED: AUG 7 1975
WASHINGTON, D.C.
WE WILL NOT INSTITUTE CHANGES IN THE POLICY WITH RESPECT TO PARKING
PRIVATE VEHICLES ON GOVERNMENT PROPERTY WITHOUT CONSULTING, CONFERRING,
OR NEGOTIATING WITH LOCAL 2151, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES.
WE WILL, UPON REQUEST, CONSULT, CONFER, OR NEGOTIATE WITH LOCAL 2151,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, WITH RESPECT TO CHANGES
AFFECTING PARKING PRIVILEGES OF PRIVATE VEHICLES ON GOVERNMENT PROPERTY.
DATED: . . . BY: . . .(SIGNATURE) . . . (TITLE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, WHOSE
ADDRESS IS: 14120 GATEWAY BUILDING, 3535 MARKET STREET, PHILADELPHIA,
PENNSYLVANIA 19104.
/1/ ANNOUNCEMENT OF THIS POLICY WAS NOT ATTACKED IN THE COMPLAINT,
AND WAS APPARENTLY AT THAT TIME UNKNOWN TO COMPLAINANT, AS CONSULTATION
DID NOT TAKE PLACE. IT IS IN ANY EVENT BEYOND THE REACH OF THE
COMPLAINT FILED 11 MONTHS LATER.
/2/ U.S. DEPARTMENT OF THE NAVY, BUREAU OF MEDICINE AND SURGERY,
GREAT LAKES NAVAL HOSPITAL, ILLINOIS, A/SLMR NO. 289.
/3/ ARMY AND AIR FORCE EXCHANGE SERVICE, PACIFIC EXCHANGE SYSTEM,
HAWAII REGIONAL EXCHANGE, A/SLMR NO. 454.
/4/ I DO NOT ADDRESS COMPLAINANT'S CONTENTIONS, FIRST ADVANCED IN ITS
BRIEF, THAT RESPONDENT THEREAFTER UNILATERALLY CHANGED ITS PARKING
POLICY FIRST BY PERMITTING UNRESTRICTED PARKING AND THEN BY ALLOCATING
SOME SPACES WITHIN THE ENCLOSURE. ASIDE FROM THE PROBLEMS POSED BY
THEIR BELATEDNESS, A RESOLUTION OF THESE ISSUES WOULD NOT ADD TO THE
SCOPE OF THE RECOMMENDED ORDER.
5 A/SLMR 582; P. 699; CASE NO. 71-3030; NOVEMBER 26, 1975.
DEPARTMENT OF THE NAVY
PUGET SOUND NAVAL SHIPYARD,
BREMERTON, WASHINGTON
A/SLMR NO. 582
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
BOILERMAKERS UNION, LOCAL 290, BREMERTON, WASHINGTON (COMPLAINANT)
ALLEGING THAT THE DEPARTMENT OF THE NAVY, PUGET SOUND NAVAL SHIPYARD,
BREMERTON, WASHINGTON (RESPONDENT), VIOLATED SECTION 19(A)(1), (2) AND
(6) OF EXECUTIVE ORDER 11491, AS AMENDED, BY THE RESPONDENT'S GROUP
SUPERINTENDENT RENDERING A SECOND STEP DECISION PURSUANT TO A NEGOTIATED
GRIEVANCE PROCEDURE IN WHICH HE THREATENED DISCIPLINARY ACTION AGAINST
THE GRIEVANT AND HIS REPRESENTATIVE FOR ALLEGEDLY FAILING TO FOLLOW THE
GRIEVANCE PROCEDURE.
THE ASSOCIATE CHIEF ADMINISTRATIVE LAW JUDGE FOUND THAT THERE WAS NO
RECORD EVIDENCE THAT RESPONDENT HAD VIOLATED SECTION 19(A)(2) OR (6) OF
THE ORDER. HOWEVER, THE ASSOCIATE CHIEF ADMINISTRATIVE LAW JUDGE FOUND
THAT RESPONDENT HAD VIOLATED SECTION 19(A)(1) WHEN ITS GROUP
SUPERINTENDENT, IN A WRITTEN DECISION UNDER THE GRIEVANCE PROCEDURE,
THREATENED DISCIPLINE AGAINST THE GRIEVANT AND HIS REPRESENTATIVE FOR
ALLEGEDLY INCORRECTLY INVOKING THE NEGOTIATED AGREEMENT'S GRIEVANCE
PROCEDURE. IN THIS CONNECTION, HE NOTED THAT SUCH ACTION COULD ONLY
HAVE THE OBVIOUS CONSEQUENCE OF CHILLING THE ASSERTION OF CONTRACT
RIGHTS BY WARNING THOSE WHO WOULD USE SUCH PROCEDURE THAT IT MUST BE
DONE WITHOUT A FLAW OR DISCIPLINE COULD ENSUE. THE ASSOCIATE CHIEF
ADMINISTRATIVE LAW JUDGE FOUND ALSO THAT SUCH ACTION BY THE RESPONDENT
WOULD DISCOURAGE EMPLOYEES FROM USING THE NEGOTIATED GRIEVANCE PROCEDURE
AND THAT THIS WAS INHERENTLY DESTRUCTIVE OF RIGHTS ASSURED UNDER SECTION
1(A) OF THE ORDER.
UPON CONSIDERATION OF THE ASSOCIATE CHIEF ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE MATTER, AND
NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE ASSISTANT
SECRETARY ADOPTED THE ASSOCIATE CHIEF ADMINISTRATIVE LAW JUDGE'S
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, AND ISSUED AN APPROPRIATE
REMEDIAL ORDER.
DEPARTMENT OF THE NAVY,
PUGET SOUND NAVAL SHIPYARD,
BREMERTON, WASHINGTON
AND
BOILERMAKERS UNION, LOCAL 290,
BREMERTON, WASHINGTON
ON SEPTEMBER 4, 1975, ASSOCIATE CHIEF ADMINISTRATIVE LAW JUDGE JOHN
H. FENTON ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN
CERTAIN UNFAIR LABOR PRACTICES AND RECOMMENDING THAT IT TAKE CERTAIN
AFFIRMATIVE ACTION AS SET FORTH IN THE ATTACHED ASSOCIATE CHIEF
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE ASSOCIATE
CHIEF ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS THAT NO
PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON
CONSIDERATION OF THE ASSOCIATE CHIEF ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I HEREBY
ADOPT THE FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE ASSOCIATE
CHIEF ADMINISTRATIVE LAW JUDGE.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE DEPARTMENT OF THE
NAVY, PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON, SHALL:
1. CEASE AND DESIST FROM:
(A) THREATENING TO TAKE DISCIPLINARY ACTION AGAINST EMPLOYEES, OR
THEIR UNION REPRESENTATIVES, BECAUSE THEY INVOKE THE NEGOTIATED
GRIEVANCE MACHINERY IN A MANNER ALLEGEDLY CONTRARY TO THE REQUIRED
PROCEDURE.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES OF THE EXECUTIVE ORDER:
(A) POST AT ITS BREMERTON, WASHINGTON, FACILITY COPIES OF THE
ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS. UPON
RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE COMMANDER OF THE
SHIPYARD, AND THEY SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL PLACES
WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDER SHALL
TAKE REASONABLE STEPS TO ASSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED OR COVERED BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN WRITING, WITHIN 30 DAYS OF THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
NOVEMBER 26, 1975
WE WILL NOT THREATEN TO TAKE DISCIPLINARY ACTION AGAINST EMPLOYEES,
OR THEIR UNION REPRESENTATIVES, BECAUSE THEY INVOKE THE NEGOTIATED
GRIEVANCE MACHINERY IN A MANNER ALLEGEDLY CONTRARY TO REQUIRED
PROCEDURE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISION, THEY MAY COMMUNICATE DIRECTLY WITH THE ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, WHOSE
ADDRESS IS: ROOM 9061, FEDERAL OFFICE BUILDING, 450 GOLDEN GATE AVENUE,
SAN FRANCISCO, CALIFORNIA 94102.
IN THE MATTER OF
DEPARTMENT OF THE NAVY
PUGET SOUND NAVAL SHIPYARD
BREMERTON, WASHINGTON
AND
BOILERMAKERS UNION, LOCAL 290
BREMERTON, WASHINGTON
WILLIAM K. HOLT
BUSINESS MANAGER AND SECRETARY-TREASURER
BOILERMAKERS LOCAL #290
P.O. BOX 488
BREMERTON, WASHINGTON 98310
EDWARD T. BORDA, ESQ.
COUNSEL FOR THE DEPARTMENT OF THE NAVY
LABOR DISPUTES AND APPEALS SECTION
WASHINGTON, D.C. 20390
BEFORE: JOHN H. FENTON
THIS PROCEEDING UNDER EXECUTIVE ORDER 11491 WAS INITIATED UPON THE
FILING OF A COMPLAINT ON SEPTEMBER 13, 1974, BY BOILERMAKERS UNION LOCAL
290 AGAINST THE PUGET SOUND NAVAL SHIPYARD. NOTICE OF HEARING WAS
ISSUED ON JANUARY 31, 1975 BY THE ASSISTANT REGIONAL DIRECTOR FOR
LABOR-MANAGEMENT SERVICES, SAN FRANCISCO REGION.
THE COMPLAINT ALLEGED THAT RESPONDENT VIOLATED SECTIONS 19(A)(1), (2)
AND (6) /1/ ON MAY 30, 1974, WHEN GROUP SUPERINTENDENT JOHN F. LONGMATE
RENDERED A SECOND STEP DECISION PURSUANT TO THE NEGOTIATED GRIEVANCE
PROCEDURE IN WHICH HE THREATENED DISCIPLINARY ACTION AGAINST THE
GRIEVANT AND HIS UNION REPRESENTATIVES FOR ALLEGEDLY FAILING TO FOLLOW
THE GRIEVANCE PROCEDURE.
A HEARING WAS HELD IN BREMERTON, WASHINGTON, ON MARCH 14, 1975. ALL
PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND
CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE. RESPONDENT MOVED TO
DISMISS THE COMPLAINT UPON COMPLETION OF THE UNION'S CASE, AND CHOSE NOT
TO CALL ANY WITNESSES. A BRIEF WAS FILED BY THE UNION, WHICH HAS BEEN
DULY CONSIDERED.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING CONCLUSIONS AND
RECOMMENDATIONS.
COMPLAINANT IS AN AFFILIATE OF THE BREMERTON METAL TRADES COUNCIL,
WHICH IS PARTY TO A CONTRACT WITH RESPONDENT (JOINT EXHIBIT NO. 1).
ARTICLE XXIX THEREOF SET FORTH A GRIEVANCE PROCEDURE WHICH PROVIDES, IN
PERTINENT PART:
"SECTION 3. ANY GRIEVANCE NOT TAKEN UP WITH THE EMPLOYEE'S IMMEDIATE
SUPERVISOR WITHIN
FIFTEEN (15) WORKING DAYS AFTER THE OCCURRENCE OF THE MATTER OUT OF
WHICH THE GRIEVANCE AROSE,
SHALL NOT BE PRESENTED NOR CONSIDERED AT A LATER DATE EXCEPT CASES
WHERE THE EMPLOYEE WAS NOT
AWARE OF BEING AGGRIEVED. EXTENSION MAY BE MUTUALLY AGREED UPON TO
PROVIDE FOR UNUSUAL CASES.
"SECTION 4. THE FOLLOWING GRIEVANCE PROCEDURE APPLIES TO ALL
ELIGIBLE EMPLOYEES OF THE
UNIT.
A. INFORMAL STEP. AN EMPLOYEE SHALL FIRST TAKE UP HIS GRIEVANCE
INFORMALLY WITH HIS
IMMEDIATE SUPERVISOR. THE IMMEDIATE SUPERVISOR WILL MEET WITH THE
EMPLOYEE AND COUNCIL
STEWARD AND ATTEMPT TO RESOLVE THE GRIEVANCE. THE SUPERVISOR MUST
GIVE HIS ANSWER WITHIN FIVE
(5) WORKING DAYS. THE COUNCIL AND THE EMPLOYER ANTICIPATE THAT MOST
EMPLOYEE GRIEVANCES WILL
BE SETTLED AT THIS INFORMAL LEVEL."
ON JANUARY 23, 1974, MR. CLARENCE GROVES, A SHIPFITTER, WAS ASSIGNED
THE TASK OF REMOVING LEAD BRICKS FROM THE BALLAST TANKS OF A SUBMARINE.
DURING THE DAY HE REMARKED TO HIS IMMEDIATE SUPERVISOR, MR. PAUL POWERS,
THAT THE WORK WAS DIRTY, AND THAT HE SHOULD EITHER BE ISSUED COVERALLS
OR GIVEN "DIRTY PAY" (EXTRA COMPENSATION FOR WORK WHICH SUBJECTS THE
EMPLOYEE TO ABNORMAL CONDITIONS). MR. POWERS INDICATED HIS AGREEMENT
AND ISSUED MR. GROVES A CHIT FOR COVERALLS.
ON THE NEXT DAY MR. GROVES BROACHED THE MATTER TO HIS SHOP STEWARD
MR. WILLIAM WORKMAN. BOTH MR. GROVES AND MR. POWERS HAPPENED TO COME TO
MR. WORKMAN'S COUNTER LATER THAT DAY, AND WORKMAN REQUESTED DIRTY PAY ON
BEHALF OF GROVES. SUPERVISOR POWERS REJECTED THE REQUEST.
ON JANUARY 31, MR. GROVES FILED A WRITTEN (STEP 1) GRIEVANCE WITH
SHIPFITTER SUPERINTENDENT MCCAUGHN (RESPONDENT'S EXHIBIT NO. 2). IT WAS
REJECTED ON FEBRUARY 4 ON THE GROUND THAT FORMAL CONSIDERATION OF THE
GRIEVANCE WAS PRECLUDED UNTIL SUCH TIME AS ARTICLE XXIX, SECTION 4 WAS
COMPLIED WITH THROUGH INFORMAL DISCUSSIONS WITH THE IMMEDIATE
SUPERVISOR. (RESPONDENT'S EXHIBIT NO. 1).
THEREAFTER MR. GROVES AND MR. WORKMAN RETRACED THEIR STEPS AND
ENGAGED IN FURTHER FRUITLESS DISCUSSIONS WITH MR. POWERS, RATHER THAN
INFORMING MR. MCCAUGHN THAT THEY HAD, IN FACT, COMPLIED WITH THE
REQUIREMENTS FOR INFORMAL EFFORTS TO RESOLVE THE GRIEVANCE. ON FEBRUARY
12, MR. GROVES FILED ANOTHER WRITTEN GRIEVANCE WITH MR. MCCAUGHN,
FORMALLY REQUESTING ENVIRONMENTAL DIFFERENTIAL PAY FOR THE PERIOD FROM
JANUARY 23 TO FEBRUARY 11, CLAIMING THAT HIS ASSIGNMENT TO THE REMOVAL
OF LEAD BALLAST DURING THAT TIME EXPOSED HIM TO ABNORMAL WORKING
CONDITIONS WARRANTING ADDITIONAL COMPENSATION. MR. MCCAUGHN REJECTED
THE CLAIM IN A MEMORANDUM DATED FEBRUARY 28, ESSENTIALLY ON THE GROUND
THAT MR. GROVES WAS NOT EXPOSED TO SOILING OF BODY OR CLOTHING BEYOND
WHAT IS NORMALLY TO BE EXPECTED IN THE PERFORMANCE OF A SHIPFITTER'S
DUTIES. THE PARTIES THEN ADVANCED TO STEP 2 BEFORE GROUP SUPERINTENDENT
LONGMATE. MR. GROVES, STEWARD WORKMAN AND MR. WILLIAM K. HOLT,
BUSINESS MANAGER AND SECRETARY-TREASURER OF COMPLAINANT, MET WITH MR.
LONGMATE ON APRIL 3, 1974. THE LATTER CLEARLY THREATENED THE GRIEVANT
AND HIS REPRESENTATIVE WITH THE POSSIBILITY OF FUTURE DISCIPLINARY
ACTION SHOULD THEY AGAIN NEGLECT TO FOLLOW THE CONTRACT'S REQUIREMENTS
CONCERNING INFORMAL RESOLUTION OF GRIEVANCES. NO ONE DISPUTED HIS
ASSUMPTION THAT THE GRIEVANCE HAD NEVER BEEN PROPERLY BROUGHT TO THE
ATTENTION OF MR. GROVES' IMMEDIATE SUPERVISOR. ON MAY 30, MR. LONGMATE
ISSUED HIS WRITTEN DECISION, GRANTING IN PART THE REQUEST FOR
ENVIRONMENTAL PAY. IN DOING SO, HE HAD THE FOLLOWING TO SAY AT
PARAGRAPH 2:
"YOU HAD FULL OPPORTUNITY TO DESCRIBE THE WORKING CONDITIONS AND
FUNCTIONS THAT YOU FELT
JUSTIFIED THE PAYMENT OF DIRTY WORK DIFFERENTIAL. IN REVIEWING ALL
ASPECTS OF THIS ISSUE
SUBSEQUENT TO THIS MEETING, I FOUND IT NECESSARY TO CALL YOU AND YOUR
METAL TRADES
REPRESENTATIVE TO A FURTHER MEETING. I FOUND THAT THE NEGOTIATED
GRIEVANCE PROCEDURE HAD NOT
BEEN FOLLOWED BY YOU OR YOUR METAL TRADES REPRESENTATIVES IN
PROCESSING THIS GRIEVANCE. AT NO
TIME PRIOR TO INITIATING THIS GRIEVANCE HAD YOU EVER APPROACHED YOUR
SUPERVISOR TO DISCUSS THE
MATTER OF DIRTY PAY DIFFERENTIAL. FURTHER, I FOUND THAT THE
GRIEVANCE HAD BEEN INITIATED AND
FORWARDED TO THE HEAD OF THE SHOP WITHOUT YOUR SUPERVISOR HAVING ANY
KNOWLEDGE THAT YOU FELT A
PROBLEM EXISTED OR THAT YOU HAD FILED A GRIEVANCE. THE MOST
FUNDAMENTAL ASPECT OF THE
GRIEVANCE PROCEDURE IS THAT EVERY EFFORT IS TO BE MADE TO RESOLVE
PROBLEMS AT THE LOWEST LEVEL
POSSIBLE. EVEN MORE FUNDAMENTAL, A GRIEVANCE SHOULD NOT EXIST UNTIL
THE IMMEDIATE SUPERVISOR
HAS HAD OPPORTUNITY TO RESOLVE THE PROBLEM FELT TO BE AT ISSUE. IN
THAT SECOND MEETING HELD
WITH YOU AND YOUR REPRESENTATIVE I INSTRUCTED BOTH OF YOU IN THIS
MATTER. I WILL CONSIDER
THIS MEMORANDUM TO YOU WITH A COPY TO YOUR METAL TRADES
REPRESENTATIVES TO SERVE AS A LETTER
OF CAUTION THAT SHOULD SUBSEQUENT OCCASIONS ARISE WHERE THE
FUNDAMENTAL GUIDELINES FOR PROBLEM
RESOLVEMENT ARE NOT FOLLOWED, FORMAL DISCIPLINE WILL BE CONSIDERED."
THIS THREAT, OR WARNING, IS THE HEART OF THE CASE. IN ADDITION,
COMPLAINANT ALSO PRESENTED EVIDENCE THAT GROUP SUPERINTENDENT LONGMATE
OTHERWISE INTIMIDATED EMPLOYEES WHO SOUGHT TO USE THE GRIEVANCE
MACHINERY BY DISPLAYING WHAT THEY PERCEIVED AS AN ATTITUDE HOSTILE TO
GRIEVANTS. THUS, TESTIMONY WAS ELICITED INDICATING THAT HE WAS
HARD-NOSED AND UNRECEPTIVE, ARGUMENTATIVE AND DIFFICULT. STEWARD
WORKMAN TESTIFIED THAT HE RESIGNED HIS POSITION WITH THE UNION IN PART
BECAUSE OF THE THREAT QUOTED ABOVE. THERE WAS ALSO TESTIMONY THAT AN
ENVIRONMENTAL DIFFERENTIAL GRIEVANCE BROUGHT BY MR. JACK LANCASTER WAS
NOT DECIDED UNTIL SIX MONTHS AFTER THE HEARING. THUS, THE UNION SOUGHT
TO ESTABLISH THAT RESPONDENT, THROUGH MR. LONGMATE, INTIMIDATED,
RESTRAINED AND COERCED EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS.
THE UNION CONTENDS THAT RESPONDENT THREATENED TO PUNISH EMPLOYEES AND
THEIR UNION REPRESENTATIVES, FOR ALLEGED PROCEDURAL ERRORS IN THE
PROCESSING OF A GRIEVANCE, IN ORDER TO DISCOURAGE THE EXERCISE OF SUCH
RIGHTS, IN VIOLATION OF SECTION 19(A)(1). IT ALSO ARGUES, AS NOTED
ABOVE, THAT RESPONDENT OTHERWISE DISCOURAGED THE USE OF THE CONTRACT'S
PROVISIONS FOR RESOLVING CLAIMS FOR ENVIRONMENTAL DIFFERENTIAL PAY BY
INORDINATE DELAY IN PROCESSING SUCH CLAIMS, AND BY RECEIVING THEM IN A
MANNER WHICH DISPLAYED ITS HOSTILITY TOWARDS GRIEVANTS AND THEIR
REPRESENTATIVES. IT DOES NOT ARTICULATE THE THEORIES UPON WHICH IT
WOULD BOTTOM SECTION 19(A)(2) AND (6) VIOLATIONS.
RESPONDENT CONTENDS, ESSENTIALLY, THAT GROUP SUPERINTENDENT
LONGMATE'S WARNING OF DISCIPLINARY ACTION HAS THE EFFECT OF COMPELLING
EMPLOYEES AND THEIR REPRESENTATIVES TO COMPLY WITH THE CONTRACT'S TERMS,
AND DOES NOT CONSTITUTE A THREAT TO PUNISH EMPLOYEES BECAUSE THEY ENGAGE
IN ACTIVITY PROTECTED BY THE EXECUTIVE ORDER. IT FURTHER ARGUES THAT NO
FACTS WERE PRESENTED WHICH WOULD SUPPORT A FINDING THAT RESPONDENT HAS
DISCRIMINATED AGAINST ANY EMPLOYEE IN VIOLATION OF SECTION 19(A)(2), OR
REFUSED TO CONSULT, CONFER OR NEGOTIATE WITH COMPLAINANT IN VIOLATION OF
SECTION 19(A)(6).
THE RECORD IS DEVOID OF EVIDENCE THAT RESPONDENT HAS IN ANY WAY
ENCOURAGED OR DISCOURAGED MEMBERSHIP IN COMPLAINANT BY DISCRIMINATION IN
REGARD TO ANY TERM OR CONDITION OF EMPLOYMENT. LIKEWISE, THERE IS NO
EVIDENCE THAT RESPONDENT HAS REFUSED TO CONFER, CONSULT OR NEGOTIATE
WITH COMPLAINANT IN VIOLATION OF SECTION 19(A)(6). AT MOST, IN THESE
RESPECTS, COMPLAINANT SEEMS TO ARGUE THAT RESPONDENT HAS HANDLED
GRIEVANCES RELATED TO "DIRTY PAY" IN SUCH A MANNER AS TO DISCOURAGE
EMPLOYEES FROM PURSUING THEIR CONTRACT RIGHTS, OR OF SEEKING VINDICATION
OF THOSE RIGHTS THROUGH THE UNION. IN ADDITION, IT APPARENTLY CONTENDS
THAT THIS FAILURE TO ACCEPT SUCH CLAIMS, OR GRIEVANCES RELATED TO THEM,
IN A CHEERFUL AND ACCOMMODATING WAY, AND TO ACT UPON THEM PROMPTLY, IS
VIOLATIVE OF THE OBLIGATION TO CONSULT AND CONFER. IN SUM, AS I
UNDERSTAND IT, THE UNION ASSERTS THAT RESPONDENT, IN ITS EFFORT TO HOLD
DOWN THE COSTS OF ENVIRONMENTAL DIFFERENTIAL PAY, HAS TREATED IT IN A
MANNER NO SELF-RESPECTING UNION SHOULD HAVE TO TOLERATE, AND WHICH THE
EXECUTIVE ORDER SHOULD NOT COUNTENANCE. AS NOTED, I FAIL TO PERCEIVE
HOW THE RESPONDENT'S ACTIONS VIOLATE EITHER SECTION 19(A)(2) OR (6)
THE THREAT TO CONSIDER DISCIPLINE AGAINST EMPLOYEES OR UNION
REPRESENTATIVES WHO FAIL TO PROPERLY INVOKE THE GRIEVANCE PROCEDURE,
HOWEVER, IS A VIOLATION OF 19(A)(1). IT HAS THE OBVIOUS CONSEQUENCE OF
CHILLING THE ASSERTION OF CONTRACT RIGHTS BY WARNING THOSE WHO WOULD
PURSUE THEIR CLAIMS THAT THEY DO SO AT THEIR PERIL. SECTION 3 OF
ARTICLE XXIX AFFORDS RESPONDENT A COMPLETE REMEDY FOR THE KIND OF
ADMINISTRATIVE BURDENS IMPROPERLY PROCESSED GRIEVANCES PRESENT TO IT, AS
DESCRIBED IN GROUP SUPERINTENDENT LONGMATE'S MEMO OF MAY 30. PURSUANT
TO ITS TERMS, EMPLOYEES WHO DO NOT FOLLOW THE PRESCRIPTION FOR
PROCESSING A GRIEVANCE DO SO AT THE PERIL OF FORFEITING THEIR GRIEVANCE.
THIS CLEARLY SHOULD BE A SUFFICIENT DETERRENT TO THOSE TEMPTED TO SKIP
THE EFFORT TO RESOLVE A GRIEVANCE WITH THEIR IMMEDIATE SUPERVISOR.
ABSENT SUCH A READILY AVAILABLE AND COMPLETELY SATISFACTORY REMEDY FOR
RESPONDENT'S LEGITIMATE CONCERNS, THERE SHOULD BE CONSIDERABLY MORE
FORCE TO THE ARGUMENT THAT RESPONDENT HAS THE RIGHT TO IMPOSE DISCIPLINE
IN ORDER TO COMPEL COMPLIANCE WITH THE CONTRACT. HERE, RESORT TO
DISCIPLINE IS TOTALLY UNNECESSARY FOR SUCH PURPOSES, LEAVING AS THE ONLY
FORESEEABLE CONSEQUENCE OF THE THREAT TO USE DISCIPLINE THAT OF
DISCOURAGING EMPLOYEES FROM USING THE GRIEVANCE MACHINERY. THE ONLY
REMAINING ISSUE, THEN, IS WHETHER SUCH DISCOURAGEMENT OF AN EMPLOYEE'S
USE OF THE GRIEVANCE MACHINERY INTERFERES, RESTRAINS OR COERCES HIM IN
THE EXERCISE OF RIGHTS ASSURED BY THE ORDER.
THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS HAS
HELD THAT AGENCY ACTION WHICH DISCOURAGES THE FILING OF GRIEVANCES
PURSUANT TO A NEGOTIATED GRIEVANCE IS INHERENTLY DESTRUCTIVE OF THE
RIGHTS ASSURED EMPLOYEES IN SECTION 1(A) OF THE ORDER-- TO FORM, JOIN
AND ASSIST A LABOR ORGANIZATION FREELY AND WITHOUT FEAR OF PENALTY OR
REPRISAL. /2/ IT FOLLOWS THAT SUPERINTENDENT LONGMATE'S THREATS
VIOLATED SECTION 19(A)(1) OF THE ORDER, BOTH BY DISCOURAGING EMPLOYEES
FROM FILING GRIEVANCES AND DISCOURAGING UNION REPRESENTATIVES FROM
BECOMING ASSOCIATED WITH SUCH GRIEVANCES.
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT VIOLATIVE OF
SECTION 19(A)(1), I RECOMMEND THAT THE ASSISTANT SECRETARY ADOPT THE
FOLLOWING ORDER DESIGNED TO EFFECTUATE THE PURPOSES OF THE EXECUTIVE
ORDER.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25 OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE DEPARTMENT OF THE
NAVY, PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON SHALL:
1. CEASE AND DESIST FROM:
(A) THREATENING TO TAKE DISCIPLINARY ACTION AGAINST EMPLOYEES, OR
THEIR UNION REPRESENTATIVES, BECAUSE THEY INVOKE THE NEGOTIATED
GRIEVANCE MACHINERY IN A PROCEDURALLY IRREGULAR WAY.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY SECTION 1(A)
OF EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES OF THE EXECUTIVE ORDER:
(A) POST AT ITS BREMERTON, WASHINGTON FACILITY COPIES OF THE ATTACHED
NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE ASSISTANT
SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH
FORMS THEY SHALL BE SIGNED BY THE COMMANDER OF THE SHIPYARD, AND THEY
SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER
IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES
ARE CUSTOMARILY POSTED. THE COMMANDER SHALL TAKE REASONABLE STEPS TO
ASSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED OR COVERED BY ANY
OTHER MATERIAL.
(B) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN WRITING, WITHIN 20 DAYS OF THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY THEREWITH.
DATED: SEPTEMBER 4, 1975
WASHINGTON, D.C.
WE WILL NOT THREATEN TO TAKE DISCIPLINARY ACTION AGAINST EMPLOYEES,
OR THEIR UNION REPRESENTATIVES BECAUSE THEY INVOKE THE NEGOTIATED
GRIEVANCE MACHINERY IN A PROCEDURALLY IRREGULAR WAY.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
DATED . . . BY . . . (SIGNATURE) . . . (TITLE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISION, THEY MAY COMMUNICATE DIRECTLY WITH THE ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR WHOSE ADDRESS
IS: ROOM 9061, FEDERAL OFFICE BUILDING, 450 GOLDEN GATE AVENUE, SAN
FRANCISCO, CALIFORNIA 94102.
/1/ AT THE HEARING, COMPLAINANT MOVED TO AMEND THE COMPLAINT TO ADD A
SECTION 19(A)(4) ALLEGATION, ASSERTING THAT THE ORIGINAL CHARGE EMBRACED
SUCH A CLAIM, AND THAT ITS ABSENCE IN THE COMPLAINT WAS AN OVERSIGHT.
NO EVIDENCE EVEN TENDING TO SUPPORT SUCH AN ALLEGATION WAS INTRODUCED.
THE MOTION IS THEREFORE DENIED.
/2/ NATIONAL LABOR RELATIONS BOARD, REGION 17 AND NATIONAL LABOR
RELATIONS BOARD, A/SLMR NO. 295; DEPARTMENT OF DEFENSE ARKANSAS
NATIONAL GUARD, A/SLMR NO. 53
5 A/SLMR 581; P. 697; CASE NO. 71-3017; NOVEMBER 26, 1975.
VETERANS ADMINISTRATION DOMICILIARY,
WHITE CITY, OREGON
A/SLMR NO. 581
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1089, AFL-CIO, WHITE
CITY, OREGON (COMPLAINANT) ALLEGING ESSENTIALLY THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1) AND (2) OF THE ORDER BY REPEATEDLY PASSING
OVER AN EMPLOYEE FOR PROMOTION, WHO WAS A PAST PRESIDENT AND AN ACTIVE
MEMBER OF THE COMPLAINANT, AND BY AN ALLEGED REMARK BY A SUPERVISOR TO
ANOTHER EMPLOYEE DURING AN APRIL 1974 PROMOTION EVALUATION THAT THE
SUBJECT EMPLOYEE'S UNION ACTIVITIES HURT HIM-- NOT HIS WORK.
FINDING THAT THE TESTIMONY OF THE WITNESSES IN SUPPORT OF THE
COMPLAINT WAS EITHER HEARSAY OR BASED ON EVENTS WELL BEYOND THE REACH OF
THE COMPLAINT, OR BOTH, THE ASSOCIATE CHIEF ADMINISTRATIVE LAW JUDGE
CONCLUDED THAT THE COMPLAINANT DID NOT PRESENT ANY PROBATIVE AND
COMPETENT EVIDENCE TENDING TO PROVE THE ALLEGATIONS OF THE COMPLAINT.
ACCORDINGLY, HE RECOMMENDED THAT THE INSTANT COMPLAINT BE DISMISSED IN
ITS ENTIRETY.
NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE ASSISTANT
SECRETARY ADOPTED THE ASSOCIATE CHIEF ADMINISTRATIVE LAW JUDGE'S
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS AND ORDERED THAT THE INSTANT
COMPLAINT BE DISMISSED IN ITS ENTIRETY.
VETERANS ADMINISTRATION DOMICILIARY,
WHITE CITY, OREGON
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1089, AFL-CIO
WHITE CITY, OREGON
ON SEPTEMBER 3, 1975, ASSOCIATE CHIEF ADMINISTRATIVE LAW JUDGE JOHN
H. FENTON ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED
IN THE ALLEGED UNFAIR LABOR PRACTICES AND RECOMMENDING THAT THE
COMPLAINT BE DISMISSED IN ITS ENTIRETY. NO EXCEPTIONS WERE FILED TO THE
ASSOCIATE CHIEF ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
ORDER.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE ASSOCIATE
CHIEF ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS THAT NO
PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON
CONSIDERATION OF THE ASSOCIATE CHIEF ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I HEREBY
ADOPT THE ASSOCIATE CHIEF ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS, AND RECOMMENDATIONS.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 71-3017 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
NOVEMBER 26, 1975
IN THE MATTER OF
VETERANS ADMINISTRATION
DOMICILIARY
WHITE CITY, OREGON
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1089, AFL-CIO
WHITE CITY, OREGON
ROBERT NOGLER
NATIONAL REPRESENTATIVE AFGE, AFL-CIO
ROOM 606
610 SOUTHWEST BROADWAY
PORTLAND, OREGON 97205
ROY MARLIA, PRESIDENT
AFGE, LOCAL 1089
VETERANS ADMINISTRATION DOMICILIARY
WHITE CITY, OREGON 97501
HARVEY WAX, ESQ.
VETERANS ADMINISTRATION
OFFICE OF DISTRICT COUNSEL
211 MAIN STREET
SAN FRANCISCO, CALIFORNIA
NORMAN JACOBS, ESQ.
LABOR RELATIONS SPECIALIST
VETERANS ADMINISTRATION CENTRAL OFFICE
WASHINGTON, D.C.
BERNARD F. GRAINEY, ESQ.
DISTRICT COUNSEL
VETERANS ADMINISTRATION
PORTLAND, OREGON
BEFORE: JOHN H. FENTON
ASSOCIATE CHIEF JUDGE
THIS PROCEEDING AROSE UPON COMPLAINANT'S FILING OF AN UNFAIR LABOR
PRACTICE COMPLAINT ON AUGUST 21, 1974, ALLEGING THAT RESPONDENT VIOLATED
SECTION 19(A)(1) AND (2) OF EXECUTIVE ORDER 11491, AS AMENDED, BY
PASSING OVER MR. ORLANDO TUFANO FOR PROMOTION IN APRIL, 1974, AND BY A
SUPERVISOR'S REMARK TO ANOTHER EMPLOYEE THAT HE WAS NOT PROMOTED BECAUSE
OF HIS UNION ACTIVITIES. NOTICE OF HEARING WAS ISSUED ON FEBRUARY 7,
1975 BY THE ASSISTANT REGIONAL DIRECTOR, SAN FRANCISCO REGION,
LABOR-MANAGEMENT SERVICES ADMINISTRATION.
A HEARING WAS HELD ON MARCH 12, 1975, IN MEDFORD, OREGON. THE
PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO PRESENT EVIDENCE
BEARING UPON THE ISSUES, TO EXAMINE AND CROSS-EXAMINE WITNESSES AND TO
MAKE ARGUMENT AND FILE BRIEFS. BASED ON THE ENTIRE RECORD, I MAKE THE
FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATION.
MR. ORLANDO TUFANO IS EMPLOYED IN THE KITCHEN AT RESPONDENT'S
FACILITY IN WHITE CITY, OREGON. HE ALLEGEDLY HAS BEEN PASSED OVER MANY
TIMES FOR PROMOTIONS BECAUSE OF HIS UNION ACTIVITIES. SPECIFICALLY, HE
WAS NOT PROMOTED IN APRIL, 1974, AND A FORMER EMPLOYEE NAMED JEAN ADAMS
REPORTED THAT CHIEF COOK MILLER, A SUPERVISOR, HAD SAID THAT MR. TUFANO
HAD BEEN HURT BY HIS UNION ACTIVITIES. HOWEVER, MRS. ADAMS DID NOT
APPEAR AT THE HEARING. /1/ THE UNION CALLED FOUR WITNESSES IN AN
APPARENT EFFORT TO SHOW THAT MR. TUFANO WAS WELL-QUALIFIED FOR PROMOTION
AND THAT RESPONDENT WAS HOSTILE TOWARDS UNION ACTIVISTS. THEIR
TESTIMONY WAS, HOWEVER, EITHER HEARSAY OR BASED ON EVENTS WELL BEYOND
THE REACH OF THE COMPLAINT, OR BOTH. AFTER SOME DISCUSSION BOTH ON AND
OFF THE RECORD CONCERNING THE RULES OF EVIDENCE AND ABOUT THE
POSSIBILITY THAT MRS. ADAMS MIGHT BE OFFERED AS A WITNESS AT SOME LATER
DATE, THE UNION ABRUPTLY ANNOUNCED ITS INTENTION NOT TO CALL ANY FURTHER
WITNESSES. THE ACTIVITY THEN MADE A MOTION FOR SUMMARY JUDGMENT ON THE
GROUND THAT NO PROBATIVE EVIDENCE OF ANY VIOLATIONS HAD BEEN PRESENTED.
A READING OF THE RECORD CONFIRMS MY IMPRESSION, CONVEYED TO THE
PARTIES AT THE CLOSE OF THE HEARING, THAT COMPLAINANT DID NOT PRESENT
ANY PROBATIVE AND COMPETENT EVIDENCE TENDING TO PROVE THE ALLEGATIONS OF
THE COMPLAINT. ACCORDINGLY, I CONCLUDE THAT THE COMPLAINT MUST BE
DISMISSED.
HAVING FOUND THAT RESPONDENT HAS NOT ENGAGED IN CONDUCT VIOLATIVE OF
SECTION 19(A)(1) AND (2) OF THE ACT, I RECOMMEND THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY.
DATED: SEPTEMBER 3, 1975
WASHINGTON, D.C.
/1/ A LETTER FROM HER WAS PLACED IN THE REJECTED EXHIBIT FILE.
5 A/SLMR 580; P. 691; CASE NO. 30-5656(CA); NOVEMBER 26, 1975.
FEDERAL DEPOSIT INSURANCE CORPORATION,
NEW YORK REGION
A/SLMR NO. 580
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY GERALD
M. FASULO (COMPLAINANT) ALLEGING THAT THE RESPONDENT VIOLATED SECTION
19(A)(1) AND (2) OF EXECUTIVE ORDER 11491, AS AMENDED, BY REFUSING TO
PROMOTE THE COMPLAINANT FROM A GS-12 BANK EXAMINER TO A GS-13 BANK
EXAMINER BECAUSE OF HIS MEMBERSHIP IN, AND ACTIVITIES ON BEHALF OF, THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3488 (AFGE).
THE COMPLAINANT, AN OFFICER OF THE AFGE, HAD VIGOROUSLY SOLICITED THE
SUPPORT OF EMPLOYEES FOR THE AFGE. THEREAFTER, THE COMPLAINANT LEARNED
THAT THE RESPONDENT'S REGIONAL DIRECTOR HAD RATED OTHER EMPLOYEES AS
MORE HIGHLY QUALIFIED FOR THE PROMOTION IN QUESTION THAN THE
COMPLAINANT, INCLUDING EMPLOYEES WHO HAD EQUAL OR LESS TIME-IN-GRADE AT
THE GS-12 LEVEL THAN THE COMPLAINANT. AS THERE WERE ONLY A LIMITED
NUMBER OF GS-13 POSITIONS AVAILABLE, THE MORE HIGHLY RATED EMPLOYEES
WERE PROMOTED AND THE COMPLAINANT WAS NOT. THE COMPLAINANT THEN
APPROACHED THE RESPONDENT'S REGIONAL DIRECTOR AND ASKED IF HIS UNION
INVOLVEMENT HAD ANYTHING TO DO WITH HIS HAVING BEEN BYPASSED FOR
PROMOTION. THE ADMINISTRATIVE LAW JUDGE FOUND THAT, IN RESPONSE TO THIS
INQUIRY, THE REGIONAL DIRECTOR STATED THAT HE DID NOT HAVE TO PROMOTE
THOSE WHO WERE ACTIVE IN THE UNION OR, FOR THAT MATTER, THOSE WHO WERE
NOT.
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE COMPLAINT BE
DISMISSED. IN THIS CONNECTION, HE CONCLUDED THAT WHILE THE EVIDENCE
ESTABLISHED THAT THE RESPONDENT WAS AWARE OF THE COMPLAINANT'S UNION
ACTIVITIES ON BEHALF OF THE AFGE, THE RECORD WAS DEVOID OF EVIDENCE OF
UNION ANIMUS ON THE PART OF THE RESPONDENT. IN THIS REGARD, HE NOTED
THAT THE EVIDENCE FAILED TO ESTABLISH THAT THE COMPLAINANT HAD BEEN
SUBJECTED TO DISPARATE TREATMENT BECAUSE OF HIS UNION ACTIVITIES AND
THAT THE SUBJECTIVE JUDGEMENT OF THE REGIONAL DIRECTOR HAD BEEN THE MOST
IMPORTANT FACTOR IN THE RATING OF THE EMPLOYEES FOR PROMOTION. HE NOTED
ALSO THAT NO EVIDENCE HAD BEEN ADDUCED WHICH COULD HAVE AFFORDED A
COMPARISON OF THE RESPONDENT'S EVALUATION OF THE WORK PERFORMANCE OF THE
COMPLAINANT AND OF THOSE EMPLOYEES WHO HAD BEEN PROMOTED.
THE ASSISTANT SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE, AND ORDERED THAT THE
COMPLAINT BE DISMISSED IN ITS ENTIRETY.
FEDERAL DEPOSIT INSURANCE CORPORATION,
NEW YORK REGION
AND
GERALD M. FASULO
ON JUNE 17, 1975, ADMINISTRATIVE LAW JUDGE JOHN H. FENTON ISSUED HIS
REPORT AND RECOMMENDATIONS 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 AND THE
RESPONDENT FILED EXCEPTIONS AND SUPPORTING BRIEFS WITH RESPECT TO THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS. THE RESPONDENT
FILED AN ANSWERING BRIEF WITH RESPECT TO THE COMPLAINANT'S EXCEPTIONS
AND SUPPORTING BRIEF AND THE COMPLAINANT FILED A RESPONSE TO THE
RESPONDENT'S ANSWERING BRIEF.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE
PARTIES' EXCEPTIONS AND BRIEFS, I HEREBY ADOPT THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 30-5656(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
NOVEMBER 26, 1975
IN THE MATTER OF
FEDERAL DEPOSIT INSURANCE CORP.,
NEW YORK REGION,
AND
GERALD M. FASULO,
JOHN F. BETAR, ADMINISTRATIVE COUNSEL
RICHARD E. KNECHT, ESQ.
FEDERAL DEPOSIT INSURANCE CORP.,
500 SEVENTEENTH STREET, N.W.
WASHINGTON, D.C. 20429
H. L. ERDWEIN
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
AFL-CIO
300 MAIN STREET
ORANGE, NEW JERSEY 07050
BEFORE: JOHN H. FENTON
THIS PROCEEDING UNDER EXECUTIVE ORDER 11491 AROUSE UPON THE FILING OF
A COMPLAINT ON AUGUST 7, 1974, BY MR. GERALD M. FASULO, AGAINST THE
FEDERAL DEPOSIT INSURANCE CORPORATION, NEW YORK REGION. NOTICE OF
HEARING WAS ISSUED ON NOVEMBER 12, 1974, BY THE ASSISTANT REGIONAL
DIRECTOR, NEW YORK REGION, LABOR-MANAGEMENT SERVICES ADMINISTRATION, ON
THE COMPLAINT'S ALLEGATIONS THAT RESPONDENT HAS VIOLATED SECTION
19(A)(1) AND (2) OF THE ORDER SINCE ON OR ABOUT MARCH 17, 1974, WHEN IT
REFUSED TO PROMOTE MR. FASULO TO GS-13 BECAUSE OF HIS MEMBERSHIP IN, AND
ACTIVITIES IN BEHALF OF LOCAL UNION NUMBER 3488, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO. THE HEARING WAS HELD ON JANUARY 21,
1975, IN NEW YORK, NEW YORK. ALL PARTIES WERE REPRESENTED AND WERE
AFFORDED FULL OPPORTUNITY TO BE HEARD, TO PRESENT EVIDENCE, AND EXAMINE
AND CROSS-EXAMINE WITNESSES.
UPON THE ENTIRE RECORD IN THE CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS:
MR. FASULO IS EMPLOYED BY FDIC AS A SENIOR BANK EXAMINER, GS-12. IN
LATE JULY 1973 EFFORTS WERE BEGUN, CENTERED PRINCIPALLY IN THE ALBANY
SUBOFFICE OF THE NEW YORK REGION OF FDIC, TO ORGANIZE A UNION. FASULO
WAS AMONG THE EARLY MEMBERS OF LOCAL UNION NO. 3488, AFGE, AND WAS
ELECTED EXECUTIVE VICE PRESIDENT. THOMAS PROCOPIO WAS THE PRESIDENT
UNTIL HE RESIGNED FROM FDIC ON MARCH 31, 1974, WHEREUPON FASULO BECAME
THE RANKING OFFICIAL.
IN OCTOBER OF 1973, HEAD BANK EXAMINER ROBERT J. FAY INFORMED HEAD
BANK EXAMINER ARTHUR G. STOW BY TELEPHONE THAT EMPLOYEES IN THE ALBANY
OFFICE HAD JOINED THE UNION, THAT A MEETING TOOK PLACE IN NEW JERSEY
INVOLVING NINE OR TEN PEOPLE AND THAT A MEETING WAS TO TAKE PLACE AT THE
UPCOMING REGIONAL OFFICE CONFERENCE AT GROSSINGER'S IN THE CATSKILLS.
ALLEGEDLY NO NAMES WERE MENTIONED. MR. STOW PASSED THIS INFORMATION ON
TO REGIONAL DIRECTOR CLAUDE PHILLIPPE IN A MEMO, AGAIN ALLEGEDLY
WITHHOLDING EVEN THE NAME OF THE SOURCE OF THE INFORMATION. (PHILLIPPE
RECALLED A CONVERSATION) /1/
IN OCTOBER OR NOVEMBER OF 1973, BEFORE TAKING CHARGE OF THE ALBANY
OFFICE, MR. CHARLES J. LACIJON WAS TOLD BY MR. FASULO ABOUT THE
FORMATION OF THE UNION IN THE ALBANY OFFICE. WITHIN ABOUT A WEEK, MR.
LACIJON ADMITS, HE RELAYED THAT INFORMATION, WITHOUT ANY DETAILS, TO
REGIONAL DIRECTOR PHILLIPPE. HE TESTIFIED THAT PHILLIPPE WAS "NOT TOO
CONCERNED".
IN DECEMBER THE NEW YORK REGIONAL OFFICE HELD A 3-DAY CONFERENCE OF
ALL PROFESSIONAL PERSONNEL AT GROSSINGER'S RESORT IN THE CATSKILLS.
ABOUT 165 EMPLOYEES ATTENDED. PROCOPIO AND FASULO DISTRIBUTED
LITERATURE DURING BREAKS, LUNCH AND AFTER THE SESSIONS. FASULO
TESTIFIED THAT HE PERSONALLY SOLICITED ABOUT 70-80 EMPLOYEES WHILE
DISTRIBUTING APPLICATIONS. A UNION ORGANIZATIONAL MEETING WAS HELD ON
THE EVENING OF THE SECOND DAY, CONDUCTED BY HIM, AT A NEARBY HOLIDAY
INN, AND ATTENDED BY APPROXIMATELY 100-125 EMPLOYEES. FASULO SAT AT A
FRONT TABLE, ON A PLATFORM, WITH UNION PRESIDENT, PROCOPIO, A MR.
BRUGMAN, A MR. FALLON AND AFGE REPRESENTATIVE H. L. ERDWEIN. FASULO
ASSERTS THAT HE SECURED 45 TO 50 APPLICATIONS FOR MEMBERSHIP, AND 40-45
SIGNATURES TO A PETITION DURING AND AFTER THE CONFERENCE. NO EVIDENCE
WAS OFFERED THAT PHILLIPPE OR ANY OTHER AGENT OF RESPONDENT WITNESSED OR
WAS OTHERWISE MADE AWARE OF THIS ACTIVITY.
THE SUBJECT OF UNION ALSO CAME UP DURING THE REGULAR BUSINESS HOURS
OF THE CONFERENCE. A WRITTEN QUESTION WAS PASSED FROM THE AUDIENCE TO
REGIONAL DIRECTOR PHILLIPPE, ASKING WHAT MANAGEMENT'S ATTITUDE WAS
TOWARD A UNION. FASULO AND PROCOPIO TESTIFIED THAT PHILLIPPE RESPONDED
THAT HE SAW NO ADVANTAGE TO A UNION, AND THAT HE WOULD NOT JOIN ONE AS
IT WOULD DO NOTHING FOR HIM. PHILLIPPE'S VERSION IS THAT HE REPLIED
THAT MANAGEMENT HAD NO ATTITUDE ONE WAY OR THE OTHER, AND THAT HE
FACETIOUSLY ADDED THAT HE WOULD NOT JOIN ONE AS IT WOULD DO NOTHING FOR
HIM. ALL AGREE THAT HIS REMARK PROVOKED LAUGHTER, ALTHOUGH FASULO AND
PROCOPIO ASSERT THAT IT PROMPTED HEAD EXAMINER STOW TO SAY TO THE SEATED
UNION OFFICERS: "WHERE ARE ALL THE RABBLE ROUSERS NOW"? A WASHINGTON
OFFICIAL OF THE CORPORATION THEN TOLD THE AUDIENCE THAT IT WOULD NOT
OBJECT TO THE FORMATION OF A UNION. I CONCLUDE THAT THERE WAS, DURING
THESE DISCUSSIONS, NO ILLEGAL INTERFERENCE WITH EMPLOYEES RIGHTS.
RATHER I CONCLUDE THAT THE REMARKS WERE INDEED FACETIOUS, PROVOKING
GENERAL LAUGHTER IN AN APPARENTLY RELAXED AUDIENCE.
IN LATE FEBRUARY OR EARLY MARCH, 1974, REGIONAL DIRECTOR PHILLIPPE
SUBMITTED TO HEADQUARTERS IN WASHINGTON, D.C., HIS RATINGS OF GS-12
EXAMINERS WHO WERE ELIGIBLE BY VIRTUE OF TIME-IN-GRADE FOR PROMOTION TO
GS-13. /2/ EXAMINERS WERE RATED, IN THE ORDER HE CONSIDERED
APPROPRIATE, WITHIN THE CATEGORIES OF OUTSTANDING, WELL-QUALIFIED,
QUALIFIED AND NOT QUALIFIED. ALL THE EXAMINERS RATED OUTSTANDING OR
WELL-QUALIFIED WERE PROMOTED ON MARCH 17, 1974. THESE INCLUDED MR.
RUBENSTEIN WHO HAD EQUAL TIME-IN-GRADE, AND MR. BERARDI, MR. KETCHA AND
MR. HOVAN, WHO HAD LESS TIME-IN-GRADE THAN FASULO. FASULO WAS RATED
QUALIFIED.
THIS PROMPTED FASULO TO REQUEST, OR DEMAND, AN EXPLANATION OF
PHILLIPPE. ON MARCH 21 HE ASKED THE LATTER IF HIS UNION INVOLVEMENT HAD
ANYTHING TO DO WITH HIS HAVING BEEN BYPASSED FOR PROMOTION. HE
TESTIFIED THAT PHILLIPPE REPLIED THAT HE "SAW NO REASON WHY HE SHOULD
PROMOTE ANYONE WHO JOINED THE LABOR UNION", AND THAT, AFTER AN
EMBARRASSING PAUSE WHEN HE REALIZED WHAT HE HAD SAID, PHILLIPPE ADDED
"OR, FOR THAT MATTER, ANYONE WHO HAS NOT JOINED A LABOR UNION". FASULO
ASSERTED THAT PHILLIPPE DID NOT AT THIS TIME STATE THAT HE WAS UNAWARE
OF FASULO'S UNION ACTIVITIES. FASULO FURTHER ASSERTED THAT HE ASKED ON
WHAT BASIS PROMOTIONS WERE MADE, AND THAT PHILLIPPE TOLD HIM THAT ONLY
HE CAN KNOW WHEN SOMEBODY IS READY TO BE A GS-13, WHEREUPON FASULO ASKED
WHETHER THERE WAS SOMETHING WRONG WITH HIS WORK. PHILLIPPE WAS
ALLEGEDLY VERY EVASIVE ABOUT THIS, POINTING OUT AFTER REFERRING TO SOME
INDEX CARDS THAT FASULO HAD ADVANCED VERY RAPIDLY TO DATE, AND ASKING
WHAT HE WAS COMPLAINING ABOUT IN THOSE CIRCUMSTANCES. THERE FOLLOWED AN
EXCHANGE ABOUT THE SOURCES AND THE ACCURACY OF FASULO'S INFORMATION
ABOUT THE MOST RECENT PROMOTIONS. TOWARDS THE END OF THE CONVERSATION,
ACCORDING TO FASULO, PHILLIPPE SAID THAT THE "CONVENIENCE AND NEEDS"
FACTOR OF HIS REPORTS WAS TOO SHORT, FAILING TO GIVE A FULL ENOUGH
PICTURE OF THE SITUATION. FASULO TESTIFIED THAT THIS WAS THE ONLY
CRITICISM OF HIS WORK UNTIL JULY 8, 1974, WHEN HE RECEIVED A WRITTEN
COMPLAINT ABOUT HIS WORK. HE SEES THIS AS A RESPONSE TO HIS UNFAIR
LABOR PRACTICE CHARGE WHICH WAS MAILED ON JULY 5, RECEIVED ON JULY 8,
AND ACKNOWLEDGED ON JULY 9.
PHILLIPPE, OF COURSE, PRESENTED A VERY DIFFERENT VERSION OF THE
CONVERSATION OF MARCH 21. HE ASSERTED THAT FASULO'S INITIAL QUESTION ON
THAT DAY WAS HIS FIRST KNOWLEDGE OF FASULO'S UNION ACTIVITIES, AND THAT
HE TOLD HIM SO. /3/ HE FURTHER TOLD HIM THAT HE TRIED TO BE OBJECTIVE
IN ALL HIS RECOMMENDATIONS AND BASE THEM SOLELY UPON MERIT, AND THAT AN
INTEREST IN THE UNION WOULD NOT INFLUENCE HIM ONE WAY OR THE OTHER.
THEN, ACCORDING TO PHILLIPPE, HE CALLED FASULO'S ATTENTION TO THE FACT
THAT HE HAD DETECTED DEFICIENCES IN HIS REPORTS AND HAD TELEPHONICALLY
ADVISED HIM THAT THEY WERE TOO BRIEF. HE ALSO TOLD HIM THAT HE SHOULD
INCREASE HIS COVERAGE, PARTICULARLY OF HIS INVESTIGATIVE REPORTS, AND
EXPRESSED HIS GENERAL VIEW THAT, WHILE HE DID NOT FEEL FASULO WAS READY
TO PERFORM THE DUTIES OF A GS-13 EXAMINER, IT SHOULD NOT TAKE HIM TOO
LONG IF HE APPLIED HIMSELF DILIGENTLY. PHILLIPPE FURTHER TESTIFIED,
THAT, AS OF THE TIME OF THE HEARING, HE STILL DID NOT REGARD FASULO AS
READY FOR GS-13 RESPONSIBILITIES. HE ASSERTED THAT ADDITIONAL INCIDENTS
SINCE THE RECOMMENDATION MADE IN FEBRUARY/MARCH 1974, SHOW THE LACK OF
DEPTH IN FASULO'S REPORTING AND HIS ANALYSIS OF A BANK'S CONDITION, AND
ANOTHER INVOLVED DISOBEDIENCE OF INSTRUCTIONS. THESE WERE OFFERED AS
EVIDENCE CONFIRMING PHILLIPPE'S PRIOR JUDGMENT THAT FASULO WAS NOT READY
FOR PROMOTION, ESPECIALLY IN THAT THE COMMENT PAGE OF HIS REPORTS TENDED
TO BE BRIEF, PERFUNCTORY AND STEREOTYPED.
ONE PRIOR INCIDENT RELIED UPON BY RESPONDENT CONCERNED A FEBRUARY,
1972, EXAMINATION OF A BANK IN THE VIRGIN ISLANDS. FASULO WAS IN CHARGE
OF THREE OTHER EXAMINERS. THEY WERE QUARTERED IN A HOTEL CLOSE TO THE
BANK, WHERE THERE WAS AN ADDITIONAL CHARGE FOR MRS. FASULO. THEY MOVED
TO A MORE EXPENSIVE HOTEL SOME DISTANCE AWAY, AND RENTED A CAR AS AN
ALTERNATIVE TO TAXIS. THERE WAS NO EXTRA CHARGE FOR MRS. FASULO. THEIR
VOUCHERS WERE TRIMMED A TOTAL OF ABOUT $80.00 FOR ALLEGED PERSONAL USE
OF THE AUTOMOBILE, ALTHOUGH NO ADJUSTMENT WAS MADE OF HOTEL COSTS
BECAUSE NO LIMIT HAD BEEN SET. PHILLIPPE ALLEGEDLY REPRIMANDED FASULO
VERY STRONGLY FOR USING BAD JUDGMENT. FASULO TESTIFIED THAT THEY HAD TO
LEAVE THE VERY UNSATISFACTORY FIRST HOTEL, AND THAT THE FLAT RATE RENTAL
FOR THE CAR WAS $80.00 PER WEEK AS COMPARED TO $24.00 PER DAY FOR TAXIS.
THE USE OF THIS INCIDENT IMPRESSED ME AS AN AFTERTHOUGHT, DREDGED UP TO
SUPPORT WHAT HAPPENED LATER. NO FORMAL ACTION WAS TAKEN AGAINST THE
PARTICIPANTS, AND IT WAS NOT USED IN EXPLANATION OF THE FAILURE TO
RECOMMEND FASULO FOR PROMOTION IN 1974.
IN MARCH, 1974, FASULO ALLEGEDLY FAILED TO CARRY OUT THE INSTRUCTIONS
OF REVIEW EXAMINER WEINMANN WITH RESPECT TO A SAVING AND LOAN BANK WHICH
WAS CONVERTING TO A MUTUAL SAVINGS BANK, REQUIRING WEINMANN TO MAKE HIS
OWN TELEPHONIC INVESTIGATION.
BY MEMO DATED JULY 8 (THE DATE ON WHICH HIS UNFAIR LABOR PRACTICE
CHARGE WAS RECEIVED) FASULO WAS CRITICIZED FOR SUBMITTING A REPORT IN
WHICH HE MADE REFERENCE TO A BANK'S SURPLUS RATIO, WHICH RATIO HAD BEEN
ADJUSTED TO REFLECT MARKET DEPRECIATION OF SECURITIES. ACCORDING TO
PHILLIPPE, FAY AND STOW, THE REFERENCE MADE SHOULD HAVE BEEN TO THE BOOK
RATIO. THE "ERRORS AND OMISSIONS" FORM RESERVED FOR USE WHERE SERIOUS
ERRORS OCCUR WAS NOT USED IN THIS INSTANCE.
IN NOVEMBER, 1974, FASULO WAS INSTRUCTED TO MAKE A PERSONAL, ON-SITE
INVESTIGATION OF A BANK. AFTER SUBMITTING A REPORT ON THE BASIS OF A
TELEPHONIC INVESTIGATION, AND ADMITTING HIS FAILURE TO FOLLOW
INSTRUCTIONS, HE WAS TOLD BY PHILLIPPE TO MAKE A PROPER INVESTIGATION ON
THE FOLLOWING DAY. AGAIN, ALLEGEDLY, IN NOVEMBER, 1974, FASULO
SUBMITTED AN INCOMPLETE REPORT ON AN EDP SERVICE CENTER. ALL THESE
INCIDENTS WERE RELATED BY PHILLIPPE AS MATTERS WHICH REINFORCED HIS
ORIGINAL JUDGMENT THAT FASULO'S WORK IS SUPERFICIAL-- THAT HE "LACKS
DEPTH IN HIS ANALYSES, AND HE DOES NOT FOLLOW THROUGH, AND HE TAKES THE
LINE OF LEAST RESISTANCE, AND HE IS NOT INCLINED TO BE INDUSTRIOUS AND
TO COME THROUGH WITH WHAT WE CONSIDER TO BE THE PROPER ANALYSIS . . . ".
ALL SUCH AFTER-THE-FACT CRITICISMS ARE, OF COURSE, ALSO SUBJECT TO THE
INTERPRETATION THAT THEY REPRESENT A KNIT-PICKING EFFORT TO SHORE UP A
PRIOR DECISION FOR WHICH THERE EXISTED LITTLE IN THE WAY OF SUBSTANTIAL,
WELL-DOCUMENTED, SUPPORT. A LOOK AT FASULO'S OVER-ALL PERFORMANCE
RECORD IS THEREFORE IN ORDER.
FASULO ENTERED SERVICE WITH FDIC ON AUGUST 21, 1966, AS A GS-6
TRAINEE. HE WAS PROMOTED TO GS-7 ON FEBRUARY 26, 1967. ON JANUARY 23,
1969, HE RECEIVED A PERFORMANCE EVALUATION OF SATISFACTORY, BEING RATED
OUTSTANDING IN THE AREAS OF DEPENDABILITY AND COOPERATIVENESS. ON
JANUARY 31, 1969, HE WAS PROMOTED TO GS-9, AND ON MARCH 22, 1970, HE WAS
PROMOTED TO GS-11. ON FEBRUARY 21, 1971, HE RECEIVED THE SAME
EVALUATION AS BEFORE, AND ON MAY 16, 1971, HE WAS PROMOTED TO GS-12.
FOR THE YEAR ENDING IN APRIL, 1974, HE RECEIVED A SATISFACTORY
PERFORMANCE RATING, RECEIVING OUTSTANDING RATINGS IN INDUSTRY,
DEPENDABILITY AND COOPERATIVENESS, AND SATISFACTORY RATINGS IN ALL OTHER
AREAS.
FASULO ASSERTED THAT HE PROGRESSED MORE RAPIDLY THAN ANY OF HIS
COUNTERPARTS, UNTIL THE POINT OF HIS UNION INVOLVEMENT. ACTIVITY
EXHIBIT NO. 2 SHOWS THE GS-12 EXAMINERS OF THE NEW YORK REGION BY EOD,
DATE OF PROMOTION TO GS-12, AND NUMBER OF MONTHS IN GS-12 AS OF AUGUST
8, 1974. IT SHOWS THAT EIGHT OF THE 20 EXAMINERS HAD BEGUN WORKING FOR
FDIC BEFORE FASULO (SIX WITH GREATER NET SERVICE TIME) AND THAT TWO HAVE
BEEN IN GRADE 12 LONGER THAN FASULO. IT ALSO SHOWS THAT THE 15
EXAMINERS WHO WERE HIRED DURING THE PERIOD FROM JUNE, 1965 TO JUNE,
1969, AND THUS MAY FAIRLY BE COMPARED TO FASULO, ACHIEVED GS-12 IN AN
AVERAGE OF 72 MONTHS AS COMPARED WITH 57 MONTHS FOR HIM. ONLY ONE OF
THESE (FERGUSON) PROGRESSED MORE RAPIDLY THAN FASULO. ACTIVITY EXHIBIT
NO. 3 LISTS THE 22 GS-13 EXAMINERS. IT SHOWS THAT FOUR OF THEM STARTED
EMPLOYMENT AFTER FASULO, THAT TWO OF THESE (BERARDI AND RUBENSTEIN) AND
TWO OTHERS (HOVAN AND KETCHA) WERE PROMOTED TO GS-12 ON OR AFTER
FASULO'S PROMOTION TO GS-12 AND THAT SIX ACHIEVED GS-13 STATUS WITH LESS
TIME-IN-GRADE THAN FASULO. THE 10 EXAMINERS ON THAT LIST WHO WERE HIRED
WITHIN THE TIME-FRAME USED ABOVE, ACHIEVED GS-12 STATUS IN AN AVERAGE OF
61 MONTHS, THUS TAKING FOUR MONTHS LONGER THAN FASULO DID. /4/ AVERAGE
TIME FOR ADVANCEMENT TO GS-12 FOR ALL SUCH EXAMINERS ON BOTH LISTS WASS
66 1/2 MONTHS, OR OVER NINE MONTHS OFF THE PACE OF FASULO. THE GS-13'S
IN THAT TIME-FRAME WERE PROMOTED AFTER SLIGHTLY LESS THAN 3 YEARS IN
GRADE. AT THE TIME OF THE CRITICAL PROMOTIONS, ON MARCH 17, 1974,
FASULO HAD BEEN IN GRADE FOR 34 MONTHS. THE SIX WHO ADVANCED MORE
RAPIDLY FROM GS-12 TO GS-13 DID SO IN AN AVERAGE OF 26.5 MONTHS. OF
THESE BERARDI HAD ABOUT 5 MONTHS LESS TOTAL SERVICE, RUBENSTEIN HAD
SEVERAL WEEKS LESS, HOVAN AND KETCHA HAD 14 MONTHS MORE, POLING HAD ONE
YEAR MORE AND STOW HAD 25 MONTHS MORE. THUS, WHILE THESE FIGURES DO NOT
SUPPORT FASULO'S ASSERTION THAT HE ADVANCED MORE RAPIDLY THAN ANY OF HIS
COLLEAGUES UNTIL HIS INVOLVEMENT IN UNION ACTIVITIES, THEY DO SHOW THAT
HE WAS MAKING VERY RAPID PROGRESS INDEED. HIS TRACK RECORD IS
SUFFICIENTLY IMPRESSIVE, AS ARE HIS RATINGS, TO PROMPT A VERY CRITICAL,
EVEN SUSPICIOUS, LOOK AT HIS FAILURE TO CONTINUE TO PROGRESS AT A TIME
ASSOCIATED WITH UNION ACTIVITY.
IT IS CLEAR FROM THIS RECORD THAT PROMOTION TO GS-13 IS THE BIG STEP
IN THE PROGRESS OF AN EXAMINER. PROGRESS THROUGH GS-12, WHILE NOT
UNIFORM, IS FAIRLY ROUTINE. ADVANCEMENT TO GS-13, ON THE OTHER HAND,
REPRESENTS A SIGNIFICANT STEP FORWARD FROM THE JOURNEYMAN LEVEL OF
PERFORMANCE. THUS A FAIR NUMBER OF EXAMINERS LEVEL OUT AT GS-12, SOME
APPARENTLY PERMANENTLY. EXCELLENCE IN DISCHARGING THE MORE ROUTINE
RESPONSIBILITIES OF THE GS-12 IS THEREFORE NOT PREDICTIVE OF EARLY
PROMOTION TO THE SUBSTANTIALLY MORE DEMANDING GS-13 ROLE. IT IS ALSO
CLEAR FROM HIS RATINGS THAT FASULO WAS A VERY INDUSTRIOUS AND DEPENDABLE
EXAMINER. IT IS AT THE HEART OF THE ACTIVITY'S DEFENSE, ASIDE FROM
PROFESSED IGNORANCE OF FASULO'S ROLE IN THE UNION, THAT THE LACK OF
DEPTH IN HIS ANALYSES SHOWED AS HE ENCOUNTERED PROGRESSIVELY MORE
COMPLEX AND DIFFICULT INVESTIGATIONS AND EXAMINATIONS.
IT IS EXTREMELY DIFFICULT, AT BEST, FOR ME TO SUBSTITUTE MY JUDGMENT
FOR THAT OF HIS SUPERIORS IN ASSESSING HIS READINESS FOR PROMOTION
RELATIVE TO THAT OF OTHERS. AS NOTED, THE CRITICISMS ADVANCED IN
SUPPORT OF THE ACTIVITY'S JUDGMENT WERE ON THE WHOLE AFTER-THE-FACT, AND
DID NOT IMPRESS ME AS SUBSTANTIAL. PERHAPS MORE IMPORTANTLY, THIS
RECORD LEAVES THEM, AS WELL AS HIS PERFORMANCE ON THE WHOLE, IN A
VACUUM. THE RATINGS REFLECTING THE PERFORMANCE OF HIS COMPETITORS WERE
NOT MADE AVAILABLE. THE CRITICISMS OR PRAISE OF THEIR WORK, IF MADE,
ARE UNKNOWN. THE VIEW OF MIDDLE MANAGEMENT AS TO THE RELATIVE WORTH OF
FASULO AND THOSE WHO WERE PROMOTED IN MARCH OF 1974 ARE UNDISCLOSED. ON
THE RECORD BEFORE ME IT APPEARS THAT THE SUBJECTIVE JUDGMENT OF REGIONAL
DIRECTOR PHILLIPPE DETERMINED THE ORDER IN WHICH ELIGIBLE GS-12
EXAMINERS WOULD BE PROMOTED. PRECISELY WHY BERARDI, RUBENSTEIN, HOVAN
AND KETCHA WERE SELECTED, AND FASULO WAS NOT, WAS NOT MADE A PART OF
THIS RECORD, AND CAN ONLY BE A MATTER OF CONJECTURE. NO COMPARISONS CAN
BE MADE. COMPLAINANT, OF COURSE, MUST ESTABLISH BY A PREPONDERANCE OF
THE EVIDENCE THAT RESPONDENT WAS MOTIVATED BY ILLEGAL CONSIDERATIONS.
ABSENT SOMETHING TANTAMOUNT TO A FINDING THAT RESPONDENT CONFESSED OR
OTHERWISE DISCLOSED SUCH A PURPOSE, IT IS NOT HERE POSSIBLE TO COME TO
SUCH A CONCLUSION. ASSUMING RESPONDENT WAS INDEED AWARE OF FASULO'S
UNION ACTIVITIES, AND EVEN POSITING THE EXISTENCE OF STATEMENTS BY
AGENTS OF RESPONDENT INDICATIVE OF ANIMUS TOWARD UNION ADHERENTS, I
COULD NOT ON THIS RECORD FIND SUFFICIENT SUPPORT FOR THE CONCLUSION THAT
THE SELECTIONS FOR PROMOTION WERE DISCRIMINATORY. THERE EXISTS NO BASIS
FOR FINDING DISPARITY OF TREATMENT WHERE THE RECORD LACKS THE FACTS UPON
WHICH TO COME TO A REASONED CONCLUSION REGARDING FASULO'S PERFORMANCE AS
COMPARED TO THAT OF HIS COLLEAGUES. WHILE I AM INCLINED TO BE
SUSPICIOUS, GIVEN FASULO'S ROLE IN THE UNION, HIS CAREER ACCOMPLISHMENTS
AND THE LACK OF ANY EARLY INDICATION THAT HIS RAPID PROGRESS WAS COMING
TO A HALT, THERE IS NO PROPER PREDICATE FOR A FINDING OF DISCRIMINATION.
THERE IS NO DOUBT THAT THE FAILURE TO PROMOTE HIM IN MARCH CAME AS A
SHOCK TO HIM, AND THERE IS LITTLE DOUBT IN MY MIND BUT THAT HE HAD
SUBSTANTIAL REASON TO EXPECT A CONTINUATION OF HIS STEADY AND RELATIVELY
RAPID PROGRESS. THIS, HOWEVER, IS MORE A COMMENT ON THE QUALITY OF
RESPONDENT'S CAREER DEVELOPMENT SYSTEM THAN AN INDICATION OF
DISCRIMINATION, FOR THERE IS NO EVIDENCE THAT FASULO OR ANYONE ELSE HAD
REGULAR SESSIONS WITH HIS SUPERIORS IN WHICH HIS STRENGTHS AND
WEAKNESSES WERE ANALYZED AND HIS PROGRESS TOWARD HIS CAREER GOALS WAS
ASSESSED. HE ONLY KNEW, AS RESPONDENT VIRTUALLY CONCEDES, THAT HIS WORK
WAS RARELY CRITICIZED UNTIL AFTER HE COMPLAINED OF THE FAILURE TO
PROMOTE HIM. NOR IS THERE ANY EVIDENCE THAT HE WAS SINGLED OUT FOR
PRAISE.
HERE, THERE IS NO EVIDENCE OF ANIMUS TOWARD THE UNION. AS NOTED, I
ATTACH NO SUCH MEANING TO PHILLIPPE'S REMARKS AT GROSSINGERS. NOR DO I
CREDIT FASULO'S ALLEGATION THAT PHILLIPPE CASUALLY CONFESSED AN ILLEGAL
ACT WHEN FASULO CONFRONTED HIM ON MARCH 21, 1974, TO REQUEST AN
EXPLANATION FOR BEING PASSED OVER IN THE LAST ROUND OF PROMOTIONS. I
BELIEVE THAT IN FASULO'S HONEST RECOLLECTION OF THE EXCHANGE, BUT I
ACCEPT PHILLIPPE'S GENERAL VERSION OF THE CONVERSATION. I DOUBT THAT
EITHER OF THEM RECONSTRUCTED THE DISCUSSION WITH ACCURACY. FASULO
ADMITTED HE WAS IN A STATE OF SHOCK. IT IS CLEAR THAT HE QUICKLY
SUGGESTED THAT HIS UNION ACTIVITIES WERE AT THE BOTTOM OF WHAT WAS TO
HIM OTHERWISE INEXPLICABLE, AND THAT HE WAS NOT PREPARED TO ACCEPT, IF
INDEED HE FULLY HEARD, OTHER EXPLANATIONS. I THINK IT LIKELY THAT
PHILLIPPE, IN RESPONDING TO THE ACCUSATION WITH WHICH THE QUESTION WAS
LOADED, SAID THAT HE DID NOT HAVE TO PROMOTE THOSE WHO ARE ACTIVE IN THE
UNION, OR, FOR THAT MATTER, THOSE WHO ARE NOT. I DO NOT FIND IT
REASONABLE TO CONCLUDE THAT PHILLIPPE UTTERED ANY ADMISSION.
IN SUMMARY, I FIND THAT THIS RECORD WILL SUPPORT A FINDING THAT
RESPONDENT WAS AWARE OF FASULO'S UNION ACTIVITIES, NOTWITHSTANDING THE
ABSENCE OF POSITIVE EVIDENCE TO ESTABLISH THAT ANY AGENT OF MANAGEMENT
OBSERVED HIM IN SUCH A ROLE OR OTHERWISE LEARNED OF IT. SUCH AN
INFERENCE IS WARRANTED, I MY JUDGEMENT, BECAUSE OF THE OPEN AND
NOTORIOUS NATURE OF HIS ACTIVITY, ESPECIALLY AT THE GROSSINGER
GATHERING, AND BECAUSE OF THE EXISTENCE OF INFORMERS. IT STRAINS
CREDULITY BEYOND THE BREAKING POINT TO ACCEPT THE NOTION THAT MANAGEMENT
OFFICIALS MAINTAINED AN OLYMPIAN INDIFFERENCE TO SUCH MATTERS, AS IF THE
MERE EXISTENCE OF HEALTHY CURIOSITY, OR THE RECEIPT OF SUCH INFORMATION
WAS AN AFFRONT TO THE EXECUTIVE ORDER. THE RECORD IS, HOWEVER, DEVOID
ON ANY EVIDENCE TENDING TO ESTABLISH THAT RESPONDENT WAS DISPOSED TO
OPPOSE ORGANIZATION OF THE UNION BY PROSCRIBED MEANS, OR, INDEED, THAT
IT HARBORED ANY UNION ANIMUS. FINALLY, THE NONSELECTION OF FASULO IS
NOT SO LACKING IN JUSTIFICATION AS TO GIVE RISE TO AN INFERENCE THAT IT
IS TO BE EXPLAINED ONLY BY REFERENCE TO HIS UNION ACTIVITY. GIVEN HIS
EMPLOYMENT HISTORY I AM NOT WITHOUT MY DOUBTS, BUT SUSPICION IS NOT
ENOUGH. IN THE CIRCUMSTANCES I AM CONSTRAINED TO RECOMMEND THAT THE
COMPLAINT BE DISMISSED.
HAVING FOUND THAT RESPONDENT HAS NOT ENGAGED IN CONDUCT VIOLATIVE OF
SECTIONS 19(A)(1) AND (2) OF THE EXECUTIVE ORDER, I RECOMMEND THAT THE
COMPLAINT BE DISMISSED IN ITS ENTIRETY.
DATED: JUNE 17, 1975
WASHINGTON, D.C.
/1/ MR. FAY DID NOT DENY THAT IN APRIL OF 1974 HE ASKED MR. FASULO
THE NAMES OF ALL THE UNION OFFICERS AND WROTE THEM DOWN. MR. FASULO
TESTIFIED THAT IN SEPTEMBER OR OCTOBER 1973, MR. FAY WAS GIVEN THE NAMES
OF OFFICERS AND ORGANIZERS OF THE UNION AND WROTE THEM DOWN. MR. FAY
NEVER CATEGORICALLY DENIED THIS. WHILE I FIND IT DIFFICULT TO BELIEVE
THAT THOSE WHO RELAY SUCH INFORMATION WOULD EDIT IT FOR PURPOSES OF
PRESERVING THE ANONYMITY OF THE ORGANIZERS, OR, IN THE CASE OF MR. STOW,
THAT SUCH A BRIEF AND GENERALIZED COMMENT AS HE ADMITS PASSING ON
WARRANTED A MEMORANDUM, MY SUSPICIONS IN THIS RESPECT ARE NOT ALONE A
PROPER FOUNDATION FOR IMPUTING KNOWLEDGE OF FASULO'S UNION ACTIVITIES TO
RESPONDENT. THERE IS NO EVIDENCE THAT EITHER FAY OR STOW IS A
SUPERVISORS. SEE FDIC, A/SLMR NO. 459, WHERE THE ASSISTANT SECRETARY
REJECTED RESPONDENTS' CONTENTION THAT ALL 70-75 COMMISSIONED BANK
EXAMINERS (GS-11 THROUGH GS-14) ARE SUPERVISORS.
/2/ GS-12 IS THE JOURNEYMAN LEVEL FOR EXAMINERS. GS-13 IS A
COMPETITIVE PROMOTION, THERE BEING FEWER SUCH POSITIONS THAN THERE ARE
GS-12S WHO ARE "ELIGIBLE" TO FILL THEM BY VIRTUE OF MEETING THE TIME AND
COMPETENCE CRITERIA.
/3/ AS INDICATED EARLIER, I FIND IT VERY DIFFICULT TO CREDIT THE
DENIAL THAT SPECIFIC AND DETAILED INFORMATION OF THE EARLY
ORGANIZATIONAL EFFORT WAS EVER DIVULGED TO PHILLIPPE, OR THAT HE WAS
UNAWARE OF FASULO'S ROLE AT THE CATSKILLS CONFERENCE.
/4/ WHITE HAS BEEN LEFT OUT OF THIS ANALYSIS, AS THE FIGURES FOR HIM
ARE OBVIOUSLY ERRONEOUS.
5 A/SLMR 579; P. 689; CASE NO. 64-2686(RO); NOVEMBER 26, 1975.
U.S. DEPARTMENT OF AGRICULTURE,
AGRICULTURAL RESEARCH SERVICE,
BUDGET AND FINANCE DIVISION,
ACCOUNTING SERVICES BRANCH,
NEW ORLEANS, LOUISIANA
A/SLMR NO. 579
THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 3513 (AFGE) SOUGHT AN ELECTION IN A UNIT OF ALL NONPROFESSIONAL
EMPLOYEES OF THE ACCOUNTING SERVICES BRANCH, BUDGET AND FINANCE
DIVISION, AGRICULTURAL RESEARCH SERVICE, U.S. DEPARTMENT OF AGRICULTURE,
NEW ORLEANS, LOUISIANA. THE ACTIVITY CONTENDED THAT THE SMALLEST UNIT
THAT COULD BE CONSIDERED APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION SHOULD INCLUDE ALL EMPLOYEES, PROFESSIONAL AND
NONPROFESSIONAL, OF THE ENTIRE BUDGET AND FINANCE DIVISION OF THE
AGRICULTURAL RESEARCH SERVICE.
THE ASSISTANT SECRETARY FOUND THAT THE UNIT SOUGHT WAS NOT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BECAUSE THE CLAIMED
EMPLOYEES DO NOT POSSESS A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
SEPARATE AND APART FROM THE OTHER EMPLOYEES OF THE BUDGET AND FINANCE
DIVISION. IN THIS REGARD, HE NOTED PARTICULARLY THAT ALL OF THE
BRANCHES OPERATE UNDER THE CENTRALIZED CONTROL OF THE DIVISION DIRECTOR;
ALL DIVISION EMPLOYEES OPERATE UNDER THE SAME UNIFORM PERSONNEL
PROCEDURES; AND THE OPERATIONS OF THE BRANCHES OF THE DIVISION ARE
HIGHLY INTEGRATED.
BASED ON THESE CONSIDERATIONS, THE ASSISTANT SECRETARY FOUND THAT THE
SEPARATE UNIT PROPOSED BY THE AFGE DID NOT CONTAIN EMPLOYEES WHO SHARE A
CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST DIFFERENT FROM OTHER
EMPLOYEES OF THE BUDGET AND FINANCE DIVISION. MOREOVER, HE FOUND THAT
IF SUCH UNIT WERE ESTABLISHED IT WOULD ARTIFICALLY FRAGMENT THE DIVISION
AND COULD NOT REASONABLY BE EXPECTED TO PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, HE ORDERED THAT THE
PETITION BE DISMISSED.
U.S. DEPARTMENT OF AGRICULTURE,
AGRICULTURAL RESEARCH SERVICE,
BUDGET AND FINANCE DIVISION
ACCOUNTING SERVICES BRANCH,
NEW ORLEANS, LOUISIANA /1/
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3513
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER PATRICK J. DOONER.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE BRIEFS FILED BY
THE PARTIES, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
3513, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF ALL
NONPROFESSIONAL EMPLOYEES OF THE ACCOUNTING SERVICES BRANCH, BUDGET AND
FINANCE DIVISION, AGRICULTURAL RESEARCH SERVICE, U.S. DEPARTMENT OF
AGRICULTURE, NEW ORLEANS, LOUISIANA. /2/ THE ACTIVITY CONTENDS THAT THE
SMALLEST UNIT THAT COULD BE CONSIDERED APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION SHOULD INCLUDE ALL EMPLOYEES, PROFESSIONAL AND
NONPROFESSIONAL, OF THE ENTIRE BUDGET AND FINANCE DIVISION OF THE
AGRICULTURAL RESEARCH SERVICE (ARS). FURTHER, IT ARGUES THAT THE
EMPLOYEES OF THE ACCOUNTING SERVICES BRANCH DO NOT SHARE A COMMUNITY OF
INTEREST SEPARATE FROM OTHER EMPLOYEES, PARTICULARLY THOSE OF THE ENTIRE
BUDGET AND FINANCE DIVISION, AND THAT SUCH A UNIT WOULD NOT PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
IN ADDITION TO THE ACCOUNTING SERVICES BRANCH LOCATED IN NEW ORLEANS,
LOUISIANA, THE BUDGET AND FINANCE DIVISION CONSISTS OF THE OFFICE OF THE
DIRECTOR, THE TECHNICAL SERVICES STAFF AND THREE OTHER BRANCHES: BUDGET
DEVELOPMENT, FINANCIAL MANAGEMENT SYSTEMS, AND FINANCIAL ANALYSIS, ALL
LOCATED IN THE WASHINGTON, D.C.-HYATTSVILLE, MARYLAND AREA.
ESSENTIALLY, THE ARS FORMULATES AND CARRIES OUT A BROAD RANGE OF
AGRICULTURAL RESEARCH PROGRAMS AND RELATED ACTIVITIES OF THE DEPARTMENT
OF AGRICULTURE FOR WHICH IT RECEIVES A SEPARATE APPROPRIATION FROM
CONGRESS. THE BUDGET AND FINANCE DIVISION IS RESPONSIBLE FOR PLANNING
AND PREPARING THE ARS BUDGET AND ARS BUDGET REQUESTS FOR FUNDS FROM THE
DEPARTMENT OF AGRICULTURE AND CONGRESS AND ASSURING THE PROPER
ADMINISTRATION OF THESE FUNDS. IN THIS RESPECT, THE RECORD REVEALS THAT
THE FIVE BRANCHES OF THE DIVISION COMPRISE A HIGHLY INTEGRATED
OPERATION. THUS, THE BUDGET DEVELOPMENT BRANCH ESTABLISHES A BUDGET
PLAN AND PRESENTS IT TO THE DEPARTMENT OF AGRICULTURE, THE OFFICE OF
MANAGEMENT AND BUDGET AND CONGRESS FOR APPROVAL. THE FINANCIAL
MANAGEMENT POLICIES ARE DEVELOPED BY THE FINANCIAL MANAGEMENT SYSTEMS
BRANCH WHICH DESIGNS AN AUTOMATED ACCOUNTING SYSTEM AND PREPARES THE
PROCEDURES THAT ARE TO BE USED IN OVER 200 ARS LOCATIONS AROUND THE
COUNTRY. INFORMATION PERTAINING TO THE ALLOTMENT OF THE FUNDS PROCURED
BY THE BUDGET DEVELOPMENT BRANCH ARE FED INTO A COMPUTER BY THE
FINANCIAL ANALYSIS BRANCH, WHICH ALSO PROVIDES ASSISTANCE IN MONITORING
THE REIMBURSABLE ACTIVITY OF THE DEPARTMENT OF AGRICULTURE. THE
ACCOUNTING SERVICES BRANCH IS RESPONSIBLE FOR BILLING AND FOR THE
COLLECTION OF FUNDS OWED TO THE ARS. /3/ FINALLY, THE FINE TECHNICAL
ASPECTS CONCERNING ACCOUNTING PROCEDURES, IN RELATIONSHIP TO FEDERAL
REGULATIONS, ARE INTERPRETED BY THE TECHNICAL SERVICE STAFF.
THE RECORD SHOWS A DEPENDENCE OF EACH BRANCH UPON THE OTHER IN THE
PERFORMANCE OF THEIR RESPECTIVE OPERATIONS. FREQUENT COMMUNICATIONS
OCCUR BETWEEN THE ENTIRE DIVISION AND ESPECIALLY BETWEEN THE OFFICE OF
THE DIRECTOR, THE ACCOUNTING SERVICES BRANCH, THE FINANCIAL ANALYSIS
BRANCH AND THE FINANCIAL MANAGEMENT SYSTEMS BRANCH. MOREOVER, THE
RECORD INDICATES THE REASSIGNMENTS BETWEEN THE VARIOUS BRANCHES EITHER
HAVE TAKEN PLACE OR HAVE BEEN OFFERED TO EMPLOYEES OF THE DIVISION AND,
FURTHERMORE, A SIGNIFICANT POTENTIAL FOR INTERCHANGE CONTINUES TO EXIST
AMONG ALL THE BRANCHES.
GENERAL RESPONSIBILITY FOR THE ADMINISTRATION OF THE BUDGET AND
FINANCE DIVISION RESTS WITH THE DIRECTOR AND THE ASSISTANT DIRECTOR.
PERSONNEL POLICIES REGARDING PROMOTIONS, HIRING, PERSONNEL MANAGEMENT,
AS WELL AS FORMAL AGENCY DIRECTIVES SETTING FORTH SPECIFIC ASPECTS OF
EACH MAJOR POLICY, ARE FORMULATED AT THE WASHINGTON HEADQUARTERS. /4/
THE DIVISION DIRECTOR PRESCRIBES THE DIVISION OPERATING PROCEDURES WITH
REGARD TO PERSONNEL MATTERS AND, IN ADDITION, APPROVES TRAINING,
PROMOTIONS (GS-7 AND ABOVE), ANNUAL WORK PLANS, TRAVEL EXPENSES,
PURCHASES OF SUPPLIES AND EQUIPMENT AND REASSIGNMENTS. THE ACTUAL
ADMINISTRATION OF PERSONNEL SERVICES, HOWEVER, IS UNDERTAKEN BY THE
SOUTHERN REGIONAL OFFICE OF THE ARS. THIS INCLUDES RECRUITMENT, THE
OBTAINMENT OF CIVIL SERVICE REGISTERS TO FILL POSITIONS, CLASSIFYING
POSITIONS AND ADMINISTERING THE FEDERAL MERIT PROMOTION PLAN.
THE ACCOUNTING SERVICES BRANCH IS HEADED BY A BRANCH CHIEF WHOSE
AUTHORITY IS LIMITED TO THE APPROVAL OF EXTENDED SICK LEAVE, ANNUAL
LEAVE, COFFEE BREAKS, LUNCH HOURS AND PROMOTIONS (GS-6 AND BELOW). HE
CANNOT DESIGNATE WORKING HOURS AND, ALTHOUGH HE CAN RECOMMEND TRAINING
AND PROMOTIONS FOR GS-7 EMPLOYEES AND ABOVE, THESE RECOMMENDATIONS MUST
BE APPROVED BY THE DIRECTOR. FURTHERMORE, THE BRANCH CHIEF HAS NO
AUTHORITY TO PROMULGATE PERSONNEL POLICIES AND PRACTICES, TO REORGANIZE
THE BRANCH, OR TO ESTABLISH DIFFERENT OPERATING OR ACCOUNTING
PROCEDURES.
BASED ON THE FOREGOING, I FIND THAT THE UNIT SOUGHT IN THE INSTANT
CASE IS NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BECAUSE
THE CLAIMED EMPLOYEES DO NOT POSSESS A CLEAR AND IDENTIFIABLE COMMUNITY
OF INTEREST SEPARATE AND APART FROM THE OTHER EMPLOYEES OF THE BUDGET
AND FINANCE DIVISION. IN THIS REGARD, IT WAS NOTED PARTICULARLY THAT
ALL OF THE BRANCHES OF THE DIVISION OPERATE UNDER THE CENTRALIZED
CONTROL OF THE DIVISION DIRECTOR; ALL DIVISION EMPLOYEES OPERATE UNDER
THE SAME UNIFORM PERSONNEL PROCEDURES; AND THE OPERATIONS OF THE
BRANCHES WITHIN THE DIVISION ARE HIGHLY INTEGRATED. MOREOVER, IN MY
VIEW, SUCH A UNIT, IF ESTABLISHED, WOULD ARTIFICALLY FRAGMENT THE BUDGET
AND FINANCE DIVISION AND COULD NOT BE REASONABLY EXPECTED TO PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, I
SHALL ORDER THE PETITION HEREIN BE DISMISSED.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 64-2686 (RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
NOVEMBER 26, 1975
/1/ THE NAME OF THIS ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE UNIT APPEARS ESSENTIALLY AS AMENDED AT THE HEARING.
/3/ THE ACTIVITY CONTENDS THAT A PLANNED REORGANIZATION AND
ESTABLISHMENT OF A NATIONAL FINANCE CENTER IN MICHOUD, LOUISIANA, WILL
USURP THE FUNCTIONS OF THE ACCOUNTING SERVICES BRANCH AND WILL ALTER
SUBSTANTIALLY ITS COMPOSITION WITHIN TWO YEARS.
/4/ ALTHOUGH THE BUDGET AND FINANCE DIVISION HAS NO LABOR RELATIONS
HISTORY, THE RECORD DISCLOSES THAT POLICIES WITH RESPECT TO
LABOR-MANAGEMENT RELATIONS WOULD BE DEVELOPED AT THE NATIONAL LEVEL OF
THE ARS, WITH NO DIVISIONAL OR SUPPLEMENTAL POLICY PROMULGATED BY THE
BUDGET AND FINANCE DIVISION.
5 A/SLMR 578; P. 684; CASE NO. 42-2573(CA); NOVEMBER 26, 1975.
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS, 31ST COMBAT SUPPORT
GROUP (TAC),
HOMESTEAD AIR FORCE BASE, FLORIDA
A/SLMR NO. 578
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1167 (COMPLAINANT),
ALLEGING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (2) OF
EXECUTIVE ORDER 11491, AS AMENDED, BY SUSPENDING ARTHUR J. SCHAFFER,
JR., PRESIDENT OF THE COMPLAINANT, FOR FIVE DAYS DUE TO HIS INVOLVEMENT
IN A SAFETY VIOLATION.
SINCE ABOUT NOVEMBER 1971, SCHAFFER HAD BEEN THE PRESIDENT OF THE
COMPLAINANT AND, AS SUCH, HAD PARTICIPATED IN NEGOTIATIONS, MEETINGS,
AND GRIEVANCE PROCESSING WITH THE RESPONDENT. ON MARCH 29, 1974,
SCHAFFER, WHO WAS A FLIGHT LINE AIRCRAFT MECHANIC, WAS ASSISTING ON AN
AIRCRAFT ENGINE "RUN UP" (A PROCEDURE FOR TESTING REPAIRS). HE WAS
APPROACHED BY AN EMPLOYEE WHO WAS NOT TAKING PART IN THE "RUN UP"
PROCEDURE WHO TAPPED HIM ON THE SHOULDER, WHEREUPON SCHAFFER MOVED PART
OF HIS "HEAD SET" TO ONE SIDE IN ORDER TO LISTEN TO THE EMPLOYEE'S
REMARKS. THE EMPLOYEE STATED THAT HE WANTED TO TALK TO SCHAFFER AND
SCHAFFER REPLIED THAT HE WOULD BE BUSY FOR ANOTHER FIVE OR TEN MINUTES.
AFTER WAITING A FEW MINUTES, THE EMPLOYEE DEPARTED. A FEW MINUTES
THEREAFTER, THE CORD BETWEEN SCHAFFER AND THE AIRCRAFT WAS PINCHED BY
ONE OF THE TIRES OF THE AIRCRAFT AS THE AIRCRAFT ROCKED SLIGHTLY
BACKWARD AND FORWARD IN RESPONSE TO THE ALTERNATING INCREASES AND
DECREASES OF POWER IN THE ENGINES. SCHAFFER'S SUPERVISOR LEARNED ABOUT
THIS OCCURRENCE FROM OTHER EMPLOYEES AND ADMONISHED SCHAFFER THAT THE
INCIDENT CONSTITUTED A SAFETY VIOLATION INASMUCH AS THE OTHER EMPLOYEE
COULD HAVE DISTRACTED SCHAFFER AND ENDANGERED THE LIVES OF THE EMPLOYEES
PARTICIPATING IN THE PROCEDURE. SCHAFFER, HOWEVER, DID NOT AGREE, AND
CONSEQUENTLY THE SUPERVISOR PROPOSED SCHAFFER'S SUSPENSION.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE SUSPENSION OF SCHAFFER
WAS NOT MOTIVATED BY SCHAFFER'S UNION ACTIVITIES. IN THIS REGARD, THE
ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE SUPERVISOR HAD NOT PROPOSED
THE SUSPENSION BECAUSE OF THE INCIDENT ITSELF, BUT RATHER BECAUSE
SCHAFFER HAD NOT ACKNOWLEDGED THAT THE INCIDENT POSED CERTAIN SAFETY
HAZARDS AND THAT SUCH INCIDENTS SHOULD BE AVOIDED IN THE FUTURE.
ACCORDINGLY, THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE SUPERVISOR
WAS CONCERNED ONLY ABOUT SAFETY CONDITIONS DURING THE "RUN UP." THE
ADMINISTRATIVE LAW JUDGE FURTHER CONCLUDED THAT IT DID NOT APPEAR THAT
SIMILAR CONDUCT OF OTHER EMPLOYEES HAD BEEN OR WOULD BE CONDONED OR
ALLOWED BY THE RESPONDENT, AND THAT, THEREFORE, IT COULD NOT BE FOUND
THAT THE RESPONDENT HAD SUBJECTED SCHAFFER TO DISPARATE TREATMENT.
THUS, THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE COMPLAINT BE
DISMISSED.
THE ASSISTANT SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE, AND ORDERED THAT THE
COMPLAINT BE DISMISSED IN ITS ENTIRETY.
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS, 31ST COMBAT SUPPORT
GROUP (TAC),
HOMESTEAD AIR FORCE BASE, FLORIDA
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1167
ON OCTOBER 10, 1975, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK 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
EXCEPTIONS AND A SUPPORTING BRIEF WITH RESPECT TO THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER.
THE ASSISTANT SECRETARY 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 AND SUPPORTING BRIEF, I HEREBY ADOPT THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 42-2573 (CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
NOVEMBER 26, 1975
IN THE MATTER OF
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS, 31ST COMBAT SUPPORT
GROUP (TAC)
HOMESTEAD AIR FORCE BASE, FLORIDA
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1167
CAPT. EDMUND R. BREHL, ESQ.
OFFICE OF THE STAFF JUDGE ADVOCATE
HEADQUARTERS, JAC-JA
LANGLEY AIR FORCE BASE, VIRGINIA 23305
LISA RENEE STRAX, ESQ.
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 "H" STREET, N.W.
WASHINGTON, D.C. 20006
BEFORE: WILLIAM NAIMARK
PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON MAY 13, 1975
BY THE ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES
ADMINISTRATION OF THE U.S. DEPARTMENT OF LABOR, ATLANTA REGION, A
HEARING IN THIS CASE WAS HELD BEFORE THE UNDERSIGNED ON JUNE 5, 1974 AT
HOMESTEAD, FLORIDA.
THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS
AMENDED, (HEREIN CALLED THE ORDER) BY THE FILING OF A COMPLAINT ON
AUGUST 21, 1974 BY NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1167,
(HEREIN CALLED THE COMPLAINANT) AGAINST HEADQUARTERS 31ST COMBAT SUPPORT
GROUP (TAC) HOMESTEAD AIR FORCE BASE, HOMESTEAD, FLORIDA. (HEREIN CALLED
THE RESPONDENT).
THE AFOREMENTIONED COMPLAINT ALLEGED A VIOLATION BY RESPONDENT OF
SECTIONS 19(A)(1)(2) AND (4) OF THE ORDER IN THAT THE EMPLOYER SUSPENDED
ARTHUR J. SCHAEFFER, JR., AN EMPLOYEE, IN ORDER TO DISCOURAGE HIS
MEMBERSHIP IN COMPLAINANT UNION. SUBSEQUENT TO THE FILING THEREOF, THE
ASSISTANT REGIONAL DIRECTOR DISMISSED THE COMPLAINT FOR LACK OF MERIT.
ON MAY 7, 1975 THE ASSISTANT SECRETARY OF LABOR REVERSED THE DISMISSAL
BY THE ASSISTANT REGIONAL DIRECTOR OF SECTIONS 19(A)(1) AND (2) PORTIONS
OF THE COMPLAINT, AND HE REMANDED THE CASE FOR ISSUANCE OF A NOTICE OF
HEARING /1/ , ABSENT SETTLEMENT THEREOF.
BOTH PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. THEREAFTER THE PARTIES FILED BRIEFS WHICH HAVE
BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS, AND RECOMMENDATIONS:
1. AT ALL TIMES MATERIAL HEREIN COMPLAINANT UNION IS, AND HAS BEEN,
THE COLLECTIVE BARGAINING REPRESENTATIVE OF THE AIR FORCE CIVILIAN
EMPLOYEES AT RESPONDENT'S BASE IN HOMESTEAD, FLORIDA. THE UNION AND THE
EMPLOYER HEREIN HAVE BEEN, AND ARE, PARTIES TO A COLLECTIVE BARGAINING
AGREEMENT COVERING WORKING CONDITIONS OF SUCH CIVILIAN EMPLOYEES.
2. SINCE ABOUT NOVEMBER 1971, ARTHUR J. SCHAEFFER HAS BEEN PRESIDENT
OF COMPLAINANT UNION, AND AT ALL TIMES MATERIAL HEREIN-- INCLUDING ON
MARCH 29, 1974-- SCHAEFFER WAS FLIGHT LINE AIRCRAFT MECHANIC, 79TH AEW&C
SQUADRON, HOMESTEAD AIR FORCE BASE.
3. SCHAEFFER, AS PRESIDENT OF THE UNION, PLAYED AN ACTIVE ROLE WHICH
INCLUDED: (A) BEING A MEMBER OF THE NEGOTIATING TEAM THAT MET WITH
MANAGEMENT TO NEGOTIATE A CONTRACT; (B) MEETING BI-WEEKLY WITH CIVILIAN
PERSONNEL TO DISCUSS EMPLOYEES' PROBLEMS; (C) HANDLING GRIEVANCES OF
EMPLOYEES AND ACTING AS THEIR REPRESENTATIVE IN DEALING WITH MANAGEMENT.
4. AT ALL TIMES MATERIAL HEREIN, INCLUDING ON MARCH 29, 1974, GEORGE
MILLER WAS VICE-PRESIDENT OF COMPLAINANT. THE RECORD REFLECTS, AND I
FIND, THAT MILLER PERFORMED THE SAME FUNCTIONS ON BEHALF OF EMPLOYEES AS
DID SCHAEFFER, AND THAT MILLER WAS AS ACTIVE THEREIN AS THE PRESIDENT OF
THE UNION. FURTHER, OTHER OFFICERS AND STEWARDS OF COMPLAINANT HANDLED
GRIEVANCES, AND ABOUT 70 PERCENT OF THE LATTER WERE HANDLED BY
REPRESENTATIVES OTHER THAN SCHAEFFER.
5. RECORD TESTIMONY REVEALS THAT SINCE 1972 MANAGEMENT OFFICIALS
ADVISED SCHAEFFER HE WAS ABSENT FROM HIS WORK STATION A GOOD DEAL AND
SPENDING TOO GREAT A PERCENTAGE OF HIS TIME ON UNION BUSINESS.
SCHAEFFER TESTIFIED, AND I FIND, THAT HE WAS NEVER REPRIMANDED NOR
PENALIZED FOR HAVING ENGAGED IN UNION ACTIVITIES OR CONDUCT AS A UNION
REPRESENTATIVE.
6. ON MARCH 29, 1974 LARRY SKIPPER, LINE CHIEF OF THE AEW&C
SQUADRON, WAS THE SUPERVISOR OF SCHAEFFER. ON THAT DATE SKIPPER WAS
WORKING AT A DESK IN A HANGAR CHECKING THE FORMS FILLED OUT BY THE
AIRCRAFT MECHANICS. AT ABOUT 8:45 THAT MORNING DAVID LENK, WHO WORKED
IN TRANSIT ALERT, DROVE HIS TRUCK TO THE HANGAR WHERE SCHAEFFER WAS
STATIONED. LENK INQUIRED OF SKIPPER AS TO THE WHEREABOUTS OF SCHAEFFER,
AND THE SUPERVISOR INFORMED HIM THAT SCHAEFFER WAS OUT ON ABLE 3 FLIGHT
LINE.
7. UPON BEING SO ADVISED BY THE SUPERVISOR, LENK DROVE HIS VEHICLE
OUT TO THE FLIGHT LINE, PARKED IT, AND APPROACHED SCHAEFFER WHO WAS
ACTING AS A GROUND CONTROLLER OR OBSERVER DURING AN ENGINE RUN UP. AT
THE TIME SCHAEFFER WORE A HEADSET COVERING BOTH EARS. WHEN LENK
APPROACHED SCHAEFFER HE TAPPED THE LATTER UPON THE SHOULDER. WHEREUPON
SCHAEFFER MOVED THE RIGHT PORTION OF THE HEADSET TO ONE SIDE SO AS TO
HEAR OVER THE ENGINE NOISE. LENK TOLD SCHAEFFER HE WANTED TO TALK TO
HIM AND ASKED SCHAEFFER HOW LONG HE WOULD BE BUSY. THE UNION PRESIDENT
REPLIED HE WOULD BE FINISHED IN FIVE OR TEN MINUTES, AND THEN HE PUSHED
HIS HEADGEAR BACK IN PLACE. AFTER WAITING A MINUTE OR TWO, LENK TOLD
SCHAEFFER THAT HE HAD TO LEAVE AND THE TRANSIT ALERT EMPLOYEE THEN
DEPARTED.
8. A RUN UP IS A FOLLOW UP ACTION AFTER CORRECTIVE MAINTENANCE HAS
TAKEN PLACE ON THE AIRCRAFT. IT IS DONE TO ASSURE THAT THE PLANE IS
OPERATIONAL AND FIT FOR FLIGHT. ON MARCH 29, 1974 A RUN UP WAS BEING
PERFORMED ON AN EC-121 AIRCRAFT AFTER A CYLINDER DIFFICULTY HAD BEEN
CORRECTED. INSIDE THE PLANE WERE SEVERAL CIVILIAN EMPLOYEES: JONES, IN
THE PILOT SEAT; PHILLIPS IN THE CO-PILOT SEAT, AND EDWARD R. MCGUIRE
WHO OPERATED THE ENGINEER'S PANEL AS MAINTENANCE MAN. THREE OTHER
INDIVIDUALS WHO WERE STATIONED ON THE GROUND NEAR THE PLANE, FUNCTIONED
AS ENGINE CONDITIONING SPECIALISTS DURING THE RUN UP. SCHAEFFER'S
RESPONSIBILITY, DURING THIS RUN UP, WAS TO MONITOR THE ENGINES WHICH
WERE BEING RUN AT HIGH RPM'S. HE ACTED AS A MEANS OF COMMUNICATION TO
THOSE INSIDE THE AIRCRAFT THRU THE USE OF THE HEADSETS TO WHICH A CORD
WAS ATTACHED LEADING FROM THE AIRCRAFT. SCHAEFFER WAS REQUIRED TO
NOTIFY THE INSIDE CREW, SPECIALLY MCGUIRE, OF ANY ACTIVITY ON THE
GROUND, SUCH AS A LEAK, WHICH WOULD NOT BE DETECTED BY THE
INSTRUMENTATION IN THE AIRCRAFT.
9. THE HEADSET UTILIZED IN THE RUN UP HAD ATTACHED TO IT A CORD
WHICH MEASURES ABOUT 60 FEET FROM THE SET TO THE NOSE CONE OF THE
AIRCRAFT. AT THE FULL EXTENSION OF THE CORD THERE IS AN ARC CREATED
NEAR THE PLANE WHERE IT TOUCHES THE GROUND, AND THE DISTANCE BETWEEN THE
WHEEL AND THE ARC THEREAT IS ABOUT TEN FEET. DURING A RUN UP THE CORD
IS NOT PULLED TAUT TO AVOID IT BREAKING AT EITHER END. IN THE EVENT
SUCH BREAKAGE OCCURRED, THE SECONDARY MEANS OF COMMUNICATION BETWEEN THE
GROUND OBSERVER AND THE ENGINEER IN THE PLANE WOULD INVOLVE HAND
SIGNALS.
10. AFTER LENK LEFT THE RUN UP AREA THE CORD IN THE EC-121 GOT
CAUGHT UNDER THE SIDE OF THE CARCASS OF THE TIRE. THIS WAS APPARENTLY
DUE TO A CROSS WIND ATTRACTING THE CORD, COUPLED WITH THE WHEELS'
CHANGING POSITION DURING THE RPM'S OF THE ENGINES. THUS THE ENTIRE
MOVEMENT AND RESETTING OF THE AIRCRAFT RESULTED IN THE CORD BECOMING
PINCHED BY THE TIRE. SCHAEFFER INFORMED MCGUIRE WHEN THE CORD BECAME
PINCHED. THE RPM'S ON THE ENGINE WERE THEN INCREASED, AND THE PLANE
WENT OVER CENTER AND LUNGED FORWARD TO RELEASE THE CORD.
11. UPON THE CONCLUSION OF THE RUN UP ON MARCH 29, 1974, WHICH WAS
ABOUT 9:00 A.M., THE CREW RETURNED TO THE HANGAR. SOMEONE NOTIFIED
MCGUIRE THAT AN UNAUTHORIZED PERSON HAD APPROACHED SCHAEFFER DURING THE
RUN UP. MCGUIRE THEN SPOKE TO THE CREW MEMBERS WHO VERIFIED THAT SOME
INDIVIDUAL APPROACHED SCHAEFFER AND SPOKE TO HIM DURING THE RUN UP.
LATER MCGUIRE SPOKE TO SGT. RAGNO, WHO WAS LENK'S SUPERVISOR AT TRANSIT
ALERT, AND HE LEARNED THAT LENK HAD SOME UNION BUSINESS TO DISCUSS WITH
SCHAEFFER AND HAD, IN FACT, COME TO THE FLIGHT LINE DURING THE RUN UP.
12. SCHAEFFER DISCOVERED THAT THE CREW HAD BEEN QUESTIONED RE LENK'S
APPEARANCE AT THE RUN UP AND HE WAS TOLD SOME ACTION MIGHT BE TAKEN
AGAINST HIM. ABOUT FIVE DAYS LATER A CONVERSATION TOOK PLACE BETWEEN
SCHAEFFER AND MCGUIRE AT WHICH TIME THE LATTER SAID HE FELT THAT
SCHAEFFER COMMITTED A SAFETY VIOLATION. THE SUPERVISOR STATED THAT
SCHAEFFER SHOULD NOT HAVE PERMITTED LENK TO BE IN THE FLIGHT LINE AREA;
THAT LENK WAS NOT ENGAGED IN OFFICIAL DUTIES, BUT WAS-- AS MCGUIRE HAD
LEARNED-- INTENT UPON TRANSACTING UNION BUSINESS; THAT THE APPEARANCE
OF AN UNAUTHORIZED PERSON DURING A RUN UP COULD HAVE DISTRACTED THE
GROUND OBSERVER AND ENDANGERED THE LIVES OF THE CREW. WHEN SCHAEFFER
REPLIED HE HAD NOTHING TO DO WITH LENK'S APPEARANCE AT THE LINE, THE
SUPERVISOR REMARKED THAT SCHAEFFER SHOULD HAVE INFORMED HIM AND THE RUN
UP WOULD HAVE CEASED TEMPORARILY. FURTHER, MCGUIRE SAID THE EMPLOYEES
SHOULD HAVE TOLD LENK TO LEAVE THE AREA IMMEDIATELY.
DURING THE AFORESAID DISCUSSION SCHAEFFER TOOK ISSUE WITH THE
SUPERVISOR'S CONCLUSION THAT LENK'S APPEARANCE CONSTITUTED A SAFETY
VIOLATION. SCHAEFFER STATED IT WAS NORMAL PRACTICE FOR MAINTENANCE
TRUCKS TO PULL UP AND DISTRACT A GROUND CONTROLLER BY TALKING DURING A
RUN UP. FURTHER, IT WAS NOT CUSTOMARY FOR THE CONTROLLER TO ADVISE THE
SUPERVISOR THEREOF. AT THE CONCLUSION OF THIS CONVERSATION MCGUIRE SAID
HE WOULD HAVE TO MAKE A REPORT, AND SCHAEFFER COMMENTED HE WOULD FILE
ONE ALSO.
13. MCGUIRE TESTIFIED HE DID NOT INTEND TO RECOMMEND ANY DISCIPLINE
OF SCHAEFFER UNTIL THE LATTER, AS AFORESAID, REFUSED TO COOPERATE AND
ACKNOWLEDGE THAT A SAFETY VIOLATION OCCURRED. HE CONSULTED THE
REGULATIONS /2/ AND WOULD HAVE GIVEN SCHAEFFER AN ORAL REPRIMAND IF THE
LATTER HAD ASSURED HIM THE INCIDENT WOULD NOT RECUR. ONE WEEK LATER
MCGUIRE FILED A REPORT AND HE PROPOSED A TEN DAY SUSPENSION FOR
SCHAEFFER.
14. ON ABOUT MAY 20, 1974 SCHAEFFER AND THE SUPERVISOR DISCUSSED THE
MATTER AGAIN. AT THIS TIME THE PINCHING OF THE CORD WAS MENTIONED.
MCGUIRE STATED HE FELT LENK'S APPEARANCE DISTRACTED SCHAEFFER AND CAUSED
THE CORD TO BECOME PINCHED, BUT THE EMPLOYEE POINTED OUT THAT IT
OCCURRED AFTER LENK LEFT THE AREA AND, IN ANY EVENT, HAND SIGNALS WERE
ALWAYS AVAILABLE.
15. SINCE SCHAEFFER DID NOT AGREE WITH THE COMMISSION OR EXISTENCE
OF A SERIOUS SAFETY VIOLATION, MCGUIRE INITIALLY PROPOSED A 10 DAY
SUSPENSION FOR SCHAEFFER WHICH HE LATER REDUCED TO FIVE DAYS DUE TO
BEING SHORTHANDED. ACCORDINGLY, THE EMPLOYEE WAS SUSPENDED FOR FIVE
DAYS, RESULTING IN A LOSS OF THREE DAYS' EMPLOYMENT INASMUCH AS A
WEEKEND INTERVENED DURING THE SUSPENSION.
IT IS CONTENDED BY COMPLAINANT THAT THE SUSPENSION OF SCHAEFFER WAS
VIOLATIVE OF 19(A)(1) AND (2) OF THE ORDER. FURTHER, COMPLAINANT
MAINTAINS THAT MANAGEMENT EVINCED ANTI-UNION ANIMUS IN ITS TREATMENT OF
THE LOCAL'S PRESIDENT; THAT THE RESULTANT SUSPENSION WAS THE PRODUCT OF
A CONSPIRACY HATCHED BY SUPERVISORS MCGUIRE AND SKIPPER TO CREATE A
PRETEXTUAL SAFETY VIOLATION; AND THAT THE DISCRIMINATORY PURPOSE OF THE
DISCIPLINARY ACTION WAS IN REPRISAL FOR SCHAEFFER'S UNION ACTIVITIES--
ALL WITH THE ACCOMPANYING INTENTION BY RESPONDENT TO DISCOURAGE THE
EMPLOYEE'S ROLE AS PRESIDENT OF THE UNION HEREIN.
AN ANALYSIS OF THE EVIDENCE ADDUCED DOES NOT PERSUADE ME THAT THE
SUSPENSION OF SCHAEFFER WAS MOTIVATED BY HIS UNION ACTIVITIES. APART
FROM THE FACT THAT THE VICE-PRESIDENT OF THE UNION ENGAGED IN THE SAME
CONDUCT ON BEHALF OF COMPLAINANT WITHOUT REPRISAL, MANAGEMENT HAD NEVER
REPRIMANDED OR CENSORED SCHAEFFER OR ANYONE DURING THE YEARS FOR
ENGAGING IN SUCH ACTIVITIES. FURTHER, THE RECORD DOES NOT SUPPORT THE
CONCLUSION THAT THE SUPERVISORS CONSPIRED TO FAULT THE EMPLOYEE SO AS TO
PUNISH HIM FOR BEING ACTIVE IN REPRESENTING EMPLOYEES IN RESPECT TO
THEIR COMPLAINTS. EXCEPT FOR SOME DISCUSSIONS REGARDING THE AMOUNT OF
TIME SCHAEFFER WAS ABSENT FROM WORK HANDLING GRIEVANCES, RESPONDENT
ACCORDED HIM CONSIDERABLE LATITUDE IN PERFORMING HIS UNION DUTIES.
IT MAY WELL BE THAT SCHAEFFER WAS NOT RESPONSIBLE FOR EITHER LENK'S
APPEARANCE ON THE FLIGHT LINE OR THE PINCHING OF THE CORD UNDER THE TIRE
OF THE AIRCRAFT. NEVERTHELESS, THERE WAS SUFFICIENT BASIS, IN EITHER
INSTANCE, FOR CONCERN BY MCGUIRE AND AMPLE JUSTIFICATION FOR CONCLUDING
THAT A HAZARDOUS CONDITION EXISTED DURING THE RUN UP. THE ENGINES
REVVED AT A VERY HIGH SPEED AND THUS CREATED A SITUATION REQUIRING
PRECAUTION TO ASSURE SAFETY OF THE CREW. THE APPEARANCE OF AN
UNAUTHORIZED PERSON AT THE LINE MUST NECESSARILY ENTAIL AN ADDITIONAL
RISK FACTOR DURING THE RUN UP.
WHILE OPINIONS MAY DIFFER AS TO THE ACTION WHICH SCHAEFFER SHOULD
HAVE TAKEN IN RESPECT TO LENK, AND TO WHAT EXTENT THE FORMER WAS
RESPONSIBLE FOR THE CORD BECOMING PINCHED, THE FACT REMAINS THAT MCGUIRE
CONCLUDED THE INCIDENT CALLED FOR SOME ACTION BY SCHAEFFER TO LESSEN THE
RISK OCCASIONED AT THE TIME. MOREOVER, THE SUPERVISOR DID NOT PENALIZE
SCHAEFFER FOR NOT ADMONISHING LENK TO LEAVE THE FLIGHT LINE OR THE
PINCHING OF THE CORD. RATHER WAS THE SUSPENSION GIVEN BECAUSE THE
EMPLOYEE REFUSED TO CONCEDE OR ACKNOWLEDGE THAT A SERIOUS SITUATION
EXISTED DURING THE RUN UP WHICH SHOULD BE AVOIDED IN THE FUTURE. THE
RECORD THUS REFLECTS THAT, FAR FROM ESTABLISHING A PLOT TO PUNISH
SCHAEFFER FOR MISDEEDS, MCGUIRE DID NOT PROPOSE TO DISCIPLINE HIM FOR
THE EVENTS OCCURRING ON MARCH 29, 1974 EVENT THOUGH HE BELIEVED THEY
WERE OCCASIONED, IN PART AT LEAST, BY THE EMPLOYEE'S BEHAVIOR.
RECORD TESTIMONY DOES REVEAL MCGUIRE DID LEARN THAT LENK HAD APPEARED
AT THE FLIGHT LINE TO DISCUSS UNION BUSINESS. HOWEVER, NONE OF THE
FACTS WARRANTS THE INFERENCE THAT THE SUPERVISOR DISCIPLINED SCHAEFFER
BECAUSE LENK APPROACHED THE UNION OFFICIAL FOR THAT PURPOSE. MCGUIRE
DID NOT CENSURE SCHAEFFER FOR THE NATURE OF THE DISCUSSION ON THE FLIGHT
LINE, AND I CANNOT CONCLUDE, BASED ON THE EVIDENCE ADDUCED, THAT HE WAS
CONCERNED ABOUT ANYTHING OTHER THAN SAFETY CONDITIONS DURING THE RUN UP.
COMPLAINANT'S COUNSEL, IN HER BRIEF, CITES USAF KINGSLEY FIELD,
KLAMATH FALLS, OREGON, A/SLMR NO. 443 IN SUPPORT OF THE CONTENTIONS THAT
RESPONDENT HEREIN ENGAGED IN DISPARAGING CONDUCT WHICH IS VIOLATIVE OF
THE ORDER. WHILE THE PRINCIPLE ENUNCIATED IN THE CITED CASE STANDS
UNCHALLENGED, I PERCEIVE A CONSIDERABLE DIFFERENCE BETWEEN THE FACTS
THEREIN AND THOSE INVOLVED IN THE CASE AT BAR. THE IMPOSITION OF
DIFFERENT WORKING CONDITIONS UPON THE UNION PRESIDENT THAN OTHER
EMPLOYEES IN THE KINGSLEY FIELD CASE, SUPRA, REFLECTED DISPARATE
TREATMENT OF THE UNION OFFICIAL. AS SUCH, THIS CONDUCT AMOUNTED TO
DISPARAGEMENT OF THE EMPLOYEES' REPRESENTATIVE IN THE EYES OF HIS FELLOW
WORKERS. IN THE INSTANT MATTER, I DO NOT CONCLUDE THAT SCHAEFFER WAS
SINGLED OUT AND TREATED DIFFERENTLY THAN OTHERS. IT DOES NOT APPEAR
THAT ANY EMPLOYEE ENGAGING IN SIMILAR CONDUCT WOULD BE, OR HAD BEEN,
EXCULPATED FROM THE SAME WRONGDOING BY MANAGEMENT. IN THE ABSENCE OF A
FINDING THAT THE EMPLOYER TREATED THE UNION REPRESENTATIVE DISPARATELY,
I AM CONSTRAINED TO CONCLUDE THAT THE CITED CASE IS INAPPLICABLE HEREIN.
ACCORDINGLY, AND IN VIEW OF THE FOREGOING, I FIND THAT RESPONDENT DID
NOT VIOLATE SECTION 19(A)(1) AND (2) OF THE ORDER BY SUSPENDING ARTHUR
J. SCHAEFFER, JR., FOR FIVE DAYS ON MAY 21, 1974.
UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS THE
UNDERSIGNED RECOMMENDS THAT THE COMPLAINT HEREIN AGAINST RESPONDENT BE
DISMISSED IN ITS ENTIRETY.
DATED: OCTOBER 10, 1975
WASHINGTON, D.C.
/1/ THE NOTICE OF HEARING HEREIN WAS IN CONFORMITY WITH THE GRANTING
BY THE ASSISTANT SECRETARY OF THE REQUEST FOR REVIEW AND HIS
DETERMINATION THAT FACTUAL ISSUES RE 19(A)(1) AND (2) VIOLATIONS BE
RESOLVED AT A HEARING.
/2/ AF REGULATION 40-75 PROVIDES IN PARAGRAPH 19 FOR VARIOUS TYPES OF
DISCIPLINARY ACTIONS. THESE RANGE FROM ORAL ADMONISHMENT TO DISCHARGE,
AND INCLUDED REPRIMANDS AS WELL AS SUSPENSIONS. THE LATTER PENALTY,
WHICH MUST NOT EXCEED 30 DAYS, IS DECLARED TO BE A SEVERE DISCIPLINARY
ACTION.
5 A/SLMR 577; P. 679; CASE NO. 70-4518; OCTOBER 31, 1975.
DEPARTMENT OF THE NAVY,
NAVAL WEAPONS STATION,
CONCORD, CALIFORNIA
A/SLMR NO. 577
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1931, AFL-CIO (AFGE),
ALLEGING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE
EXECUTIVE ORDER BY SUSPENDING THE PUBLICATION OF THE PLAN OF THE DAY
(POD) WITHOUT MEETING AND CONFERRING WITH THE EXCLUSIVE REPRESENTATIVE.
THE COMPLAINANT CONTENDED, IN THIS REGARD, THAT THE POD CONTAINED
MATTERS WHICH CONSTITUTED WORKING CONDITIONS WHICH COULD NOT
UNILATERALLY BE CHANGED.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT NO VIOLATION OF THE ORDER
HAD OCCURRED AND, THEREFORE, HE RECOMMENDED DISMISSAL OF THE UNFAIR
LABOR PRACTICE COMPLAINT. IN THIS REGARD, THE ADMINISTRATIVE LAW JUDGE
CONSIDERED THE POD TO BE A MANAGEMENT NEWSLETTER AND HE CONCLUDED THAT
NO EVIDENCE HAD BEEN PRESENTED THAT IT HAD BEEN USED BY THE RESPONDENT
TO BYPASS THE EXCLUSIVE REPRESENTATIVE. HE NOTED ALSO THAT THE
RESPONDENT HAD BARGAINED WITH RESPECT TO ANNOUNCEMENTS MADE IN THE POD
CONCERNING WORKING CONDITIONS PRIOR TO THEIR PUBLICATION AND THAT THE
RESPONDENT HAD MET ITS OBLIGATION WITH RESPECT TO VACANCY ANNOUNCEMENTS
BY EXTENDING THE LISTING OF THOSE WHICH WOULD HAVE APPEARED IN THE POD
WHILE ITS PUBLICATION WAS SUSPENDED. UNDER THE CIRCUMSTANCES, THE
ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE COMPLAINANT HAD NO VESTED
RIGHTS WITH RESPECT TO THE POD AND, THEREFORE, COULD NOT OBJECT THE
SUSPENSION OF ITS PUBLICATION. MOREOVER, THE REVISION OF THE POD, IN
HIS VIEW, DID NOT CONSTITUTE A UNILATERAL CHANGE IN WORKING CONDITIONS.
NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED AND THAT
PUBLICATION OF THE POD WAS RESUMED SHORTLY AFTER ITS SUSPENSION WITHOUT
SUBSTANTIAL CHANGE, THE ASSISTANT SECRETARY ADOPTED THE ADMINISTRATIVE
LAW JUDGE'S RECOMMENDATION THAT THE UNFAIR LABOR PRACTICE COMPLAINT IN
THIS MATTER BE DISMISSED IN ITS ENTIRETY.
DEPARTMENT OF THE NAVY,
NAVAL WEAPONS STATION,
CONCORD, CALIFORNIA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1931, AFL-CIO,
CONCORD, CALIFORNIA
ON AUGUST 25, 1975, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK ISSUED
HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAD NOT ENGAGED IN THE ALLEGED UNFAIR LABOR
PRACTICES, AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS
ENTIRETY. NO EXCEPTIONS WERE FILED TO THE ADMINISTRATIVE LAW JUDGE'S
REPORT AND RECOMMENDATION.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE
ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS THAT NO
PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS OF THE ADMINISTRATIVE LAW
JUDGE ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S REPORT AND RECOMMENDATION AND THE ENTIRE RECORD IN THE SUBJECT
CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I HEREBY
ADOPT THE FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE ADMINISTRATIVE
LAW JUDGE. /1/
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 70-4518 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
OCTOBER 31, 1975
IN THE MATTER OF
DEPARTMENT OF THE NAVY
NAVAL WEAPONS STATION
CONCORD, CALIFORNIA
AND
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 1931,
AFL-CIO, CONCORD, CALIFORNIA
THE UNDERSIGNED ISSUED A DECISION ON AUGUST 25, 1975 ON THE
ABOVE-ENTITLED CASE.
PARAGRAPH 10 ON PAGE 4 THEREOF MISTAKENLY STATED: "GEDRICH INFORMED
THE UNION REPRESENTATIVE THERE WAS NO PLAN TO CANCEL THE "PLAN"; THAT
THE COMMANDING OFFICER WAS NOT HAPPY RE SOME ITEMS, AND PUBLICATION
WOULD BE SUSPENDED PENDING REVISION OF THE POD."
THE SAID SENTENCE IS HEREBY CORRECTED TO READ: "CAMPAGLIA INFORMED
THE UNION REPRESENTATIVE THERE WAS NO PLAN TO CANCEL THE "PLAN"; THAT
THE COMMANDING OFFICER WAS NOT HAPPY RE SOME ITEMS, AND PUBLICATION
WOULD BE SUSPENDED PENDING REVISION OF THE POD."
DATED: SEPTEMBER 3, 1975
WASHINGTON, D.C.
IN THE MATTER OF
DEPARTMENT OF THE NAVY
NAVAL WEAPONS STATION
CONCORD, CALIFORNIA
AND
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 1931,
AFL-CIO, CONCORD, CALIFORNIA
A. S. CALCAGNO
LABOR RELATIONS ADVISOR
REGIONAL OFFICE-- CIVILIAN MANPOWER MANAGEMENT
DEPARTMENT OF THE NAVY
760 MARKET STREET
SAN FRANCISCO, CALIFORNIA 94102
CURTIS TURNER
NATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES AFL-CIO
BEFORE: WILLIAM NAIMARK
/1/ IN REACHING THE ABOVE DISPOSITION, IT WAS NOTED ADDITIONALLY THAT
THE ADMINISTRATIVE LAW JUDGE FOUND THAT PUBLICATION BY THE RESPONDENT OF
THE PLAN OF THE DAY, THE SUSPENSION OF WHICH ON AUGUST 13, 1974, WAS THE
BASIS OF THE INSTANT COMPLAINT, WAS RESUMED ON AUGUST 21, 1974, WITHOUT
SUBSTANTIAL CHANGE. CF. VANDENBERG AIR FORCE BASE, 4392D AEROSPACE
GROUP, VANDENBERG AIR FORCE BASE, CALIFORNIA, FLRC NO. 74A-77.
PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON JANUARY 28,
1975 BY THE ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES
ADMINISTRATION OF THE U.S. DEPARTMENT OF LABOR, SAN FRANCISCO REGION, A
HEARING IN THE ABOVE CAPTIONED CASE WAS HELD BEFORE THE UNDERSIGNED ON
MARCH 13, 1975 AT SAN FRANCISCO, CALIFORNIA.
THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS
AMENDED, BY THE FILING OF A COMPLAINT ON JANUARY 13, 1975 BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1931, AFL-CIO, CONCORD,
CALIFORNIA, (HEREIN CALLED THE COMPLAINANT) AGAINST DEPARTMENT OF THE
NAVY, NAVAL WEAPONS STATION, CONCORD, CALIFORNIA (HEREIN CALLED THE
RESPONDENT). IT WAS ALLEGED IN THE COMPLAINT THAT ON AUGUST 13, 1974
RESPONDENT ALLEGED IN THE COMPLAINT THAT ON AUGUST 13, 1974 RESPONDENT
PUBLISHED A NOTICE TO THE EFFECT THAT THE PUBLICATION OF THE "PLAN OF
THE DAY" WAS BEING HELD IN ABEYANCE; THAT RESPONDENT FAILED TO CONSULT
WITH COMPLAINANT, THE EXCLUSIVE BARGAINING REPRESENTATIVE, REGARDING
SUCH ACTION-- ALL IN VIOLATION OF SECTIONS 19(A)(1) AND (6) OF THE
ORDER. A RESPONSE WAS FILED BY RESPONDENT ON DECEMBER 9, 1974 ADMITTING
IT HELD THE PLAN IN ABEYANCE FOR REVISION PURPOSES. HOWEVER, THE
EMPLOYER DENIED IT VIOLATED THE ORDER, CONTENDING IT HAD NO OBLIGATION
TO CONSULT ON THIS MATTER.
BOTH PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. THEREAFTER THE PARTIES FILED BRIEFS WHICH HAVE
BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSION, AND RECOMMENDATIONS.
1. AT ALL TIMES MATERIAL HEREIN COMPLAINANT HAS BEEN, AND STILL IS,
THE COLLECTIVE BARGAINING REPRESENTATIVE OF ALL CAREER,
CAREER-CONDITIONAL, TAPER AND TERM EMPLOYEES, INCLUDING GRADED AS WELL
AS UNGRADED EMPLOYEES AND FIREFIGHTERS OF RESPONDENT.
2. BOTH COMPLAINANT AND RESPONDENT HAVE BEEN PARTIES TO A COLLECTIVE
BARGAINING AGREEMENT /1/ WHICH IS EFFECTIVE, BY ITS TERMS, FROM MARCH
19, 1974 UNTIL MARCH 19, 1977.
3. ARTICLE VII, SECTION 2, OF THE AFORESAID AGREEMENT PROVIDES, IN
SUBSTANCE, THAT THE EMPLOYER HEREIN AGREES TO POST "VACANCY
ANNOUNCEMENTS" ON OFFICIAL BULLETIN BOARDS SO THAT INTERESTED EMPLOYEES
HAVE AN OPPORTUNITY TO APPLY AND THAT A LISTING OF SUCH ANNOUNCEMENTS
WILL APPEAR TWICE WEEKLY IN THE PLAN OF THE DAY.
4. THE PLAN OF THE DAY (HEREINAFTER CALLED POD) IS AN ADMINISTRATIVE
DIRECTIVE PUBLISHED DAILY BY THE EXECUTIVE OFFICER AND POSTED ON THE
BULLETIN BOARDS. IT CONTAINS PLANS AND ORDERS FOR ADMINISTRATION OF THE
UNIT AND ANNOUNCEMENTS OF GENERAL INTEREST. IN PUBLISHING THE POD IN
1972, MANAGEMENT DECIDED TO USE THIS MEANS OF ANNOUNCING ITEMS RATHER
THAN UTILIZE THE "TRANSSHIPPER", THE BASE NEWSPAPER, IN ORDER TO SAVE
EXPENSE. WHILE DESIGNED AS AN INFORMATION MEDIUM, THE POD MAY
OCCASIONALLY ANNOUNCE A CHANGE IN WORKING CONDITION I.E. THE CLOSING OF
A GATE AT THE BASE. HOWEVER, THESE CHANGES ARE DISCUSSED WITH THE UNION
PREVIOUSLY. SOME MINOR DIRECTIVES, SUCH AS WHERE TO REPORT FOR A
TRAINING COURSE, MAY ALSO BE PROMULGATED IN THE POD. FURTHER, MERIT
PROMOTIONS VACANCIES ARE LISTED THEREIN. THIS IS DONE AS A CONVENIENCE
AND REMINDER TO EMPLOYEES, DOES NOT INCLUDE COMPLETE DETAILS OF THE
VACANCY, AND IS NOT INTENDED TO BE AN OFFICIAL NOTICE THEREOF.
5. INSTRUCTION 5330.1 /2/ , DATED NOVEMBER 30, 1972, WAS ISSUED BY
THE COMMANDING OFFICER OF THE NAVAL INSTALLATIONS AT CONCORD,
CALIFORNIA. IT ANNOUNCED A NEW SYSTEM OF PUBLISHING THE PLAN OF THE
DAY. MOREOVER, THE INSTRUCTIONS PROVIDED FOR CLASSIFYING NEWS ITEMS AS
(A) OFFICIAL-- ITEMS AFFECTING THE OFFICIAL STATUS OF MILITARY, CIVILIAN
AND DEPENDENTS ASSIGNED TO THE STATION, SUCH AS COMMAND STAFF MEETINGS,
NEWS-A-GRAM, ETC.; (B) SEMI-OFFICIAL-- ITEMS NOT STRICTLY OF AN OFFICIAL
NATURE, SUCH AS MANAGEMENT LUNCHEONS, CONFERENCES, ETC; (C)
UNOFFICIAL-- NEWS OF PERSONAL NATURE, SUCH AS ITEMS FOR SALE, RIDES
WANTED, OR LOST AND FOUND ARTICLES.
6. IN OCTOBER 1973, CAPTAIN DENHAM, COMMANDING OFFICER AT THE
STATION, SPOKE TO ROGER O. BALDWIN, EXECUTIVE OFFICER, RE THE POD. THE
COMMANDER REMARKED THAT IT CONTAINED ERRORS AND THAT HE WAS CONCERNED AS
TO ITS FORMAT AS WELL AS THE TYPE OF INFORMATION PUBLISHED THEREIN.
7. AS A RESULT OF THE FOREGOING, THE POD'S PUBLICATION WAS HELD IN
ABEYANCE FOR REVISION PURSUANT TO A DIRECTIVE ISSUED ON AUGUST 13, 1974.
PURSUANT TO INSTRUCTION 5330.1A, ISSUED ON AUGUST 16, 1974, THE POD WAS
REVISED. THE PRINCIPAL REVISION ELIMINATED THE CATEGORY "SEMI-OFFICIAL"
FROM THE CATEGORIZED ITEMS TO BE PUBLISHED, BUT NO SUBSTANTIAL CHANGE
WAS MADE IN THE TYPE OF MATERIAL TO BE PROMULGATED IN THE POD.
PUBLICATION OF THE POD, SUSPENDED IN AUGUST 13, 1974 WAS RESUMED ON
AUGUST 21, 1974.
8. NO DISCUSSIONS OR CONSULTATION WAS HAD BY RESPONDENT WITH THE
COMPLAINANT HEREIN RE THE SUSPENSION OF PUBLICATION OF THE POD NOR AS TO
THE REVISION THEREOF.
9. IN ADDITION TO REVISING THE POD, RESPONDENT COMMENCED
PROMULGATING A ROUTINE OF THE DAY (ROD) TO CODIFY WORK PRACTICES AND
HISTORICAL PRECEDENTS WHICH WERE REDUCED TO WRITING. THESE INCLUDED
WORKING HOURS, LUNCH TIME, AND ROUTINE ITEMS BUT ROD MATTERS WERE NOT
PUBLISHED IN THE POD. IN RESPECT TO PUBLICATION OF THE ROD, THE
COMPLAINANT'S REPRESENTATIVE APPEARED AT MEETINGS TO DISCUSS SAME, AND
MANAGEMENT CONCEDEDLY HAS CONSULTED WITH THE UNION RE THE ROD'S INPUT OR
REVISIONS.
10. UPON THE ISSUANCE OF INSTRUCTION 5330.1A ON AUGUST 16, 1974,
THOMAS GEDRICH, PRESIDENT OF THE COMPLAINANT UNION, CALLED ALBERT R.
CAMPAGLIA, HEAD OF RESPONDENT'S LABOR RELATIONS, AND TOLD HIM THE UNION
WAS CONCERNED THAT THE POD MIGHT BE CANCELLED, AND THE EMPLOYEES WOULD
NOT RECEIVE NOTIFICATION OF PROMOTION ANNOUNCEMENTS. GEDRICH INFORMED
THE UNION REPRESENTATIVE THERE WAS NO PLAN TO CANCEL THE "PLAN"; THAT
THE COMMANDING OFFICER WAS NOT HAPPY RE SOME ITEMS, AND PUBLICATION
WOULD BE SUSPENDED PENDING REVISION OF THE POD. NO REQUEST WAS MADE BY
COMPLAINANT THAT RESPONDENT CONSULT RE THE SUSPENSION OF THE POD'S
PUBLICATION.
11. AS A RESULT OF GEDRICH'S CONCERN, A MEETING WAS HELD WITH
MANAGEMENT ON AUGUST 20, AT WHICH TIME IT WAS AGREED THAT CERTAIN JOB
VACANCY ANNOUNCEMENTS (163 AND 165), PREVIOUSLY LISTED IN THE POD, WOULD
BE REOPENED AND LISTED AGAIN IN THE POD. THE VACANCY ANNOUNCEMENTS WERE
THEREAFTER RELISTED AND EXTENDED TO ACCOMMODATE THE UNION'S COMPLAINT
THAT THE LISTING OF SAID VACANCIES WOULD NOT APPEAR DURING THE PERIOD
WHEN PUBLICATION OF THE POD WAS HELD IN ABEYANCE.
IT IS CONTENDED BY COMPLAINANT THAT RESPONDENT VIOLATED THE ORDER BY
SUSPENDING THE PUBLICATION OF THE POD WITHOUT DISCUSSING THE SUSPENSION
BEFOREHAND WITH THE UNION. SINCE THE POD CONTAINS, INTER ALIA, ITEMS
PROPERLY CLASSED AS WORKING CONDITIONS, IT IS ARGUED THAT THE OBLIGATION
TO MEET AND CONFER UNDER 19(A)(6) NECESSARILY REQUIRES A DISCUSSION WITH
THE UNION OF ANY INTENTION TO TAKE ACTION RE ITS PUBLICATION.
THE DIFFICULTY IN ACCEPTING THE COMPLAINANT'S ARGUMENT IS TWO-FOLD:
(1) THE POD, AS CONCEIVED AND PUBLISHED, IS ESSENTIALLY A MANAGEMENT
NEWSLETTER WITH AN EMPHASIS UPON BRINGING TO THE ATTENTION OF EMPLOYEES
BITS OF INFORMATION REGARDING EVENTS ON THE BASE; (2) ALTHOUGH THE POD
INCLUDES ITEMS WHICH MAY BE DEEMED WORKING CONDITIONS, COLLECTIVE
BARGAINING WITH RESPECT TO SUCH MATTERS HAS OCCURRED PRIOR TO ITS
PUBLICATION.
THE RECORD DOES NOT DISCLOSE THAT THE ANNOUNCEMENTS PUBLISHED ARE AN
ATTEMPT BY THE EMPLOYER TO EITHER CHANGE WORKING CONDITION
UNILATERALLY-- AND THUS BYPASS THE UNION-- OR TO EVADE AN OBLIGATION TO
MEET AND CONFER WITH THE BARGAINING REPRESENTATIVE. THERE IS NO
ASSERTION BY COMPLAINANT THAT RESPONDENT TOOK ACTION WITH RESPECT TO
WORKING CONDITIONS WHICH WERE NOT SUBJECTS OF DISCUSSIONS BEFOREHAND.
AS LONG AS MANAGEMENT DOES NOT UTILIZE THE POD FOR COERCIVE PURPOSES, OR
TO IMPLEMENT EMPLOYMENT CONDITIONS UNILATERALLY IMPOSED, I DO NOT VIEW
ITS PUBLICATION OF THE POD AS AN INFRINGEMENT UPON THE RIGHTS OF THE
UNION.
IN ADDITION TO PUBLISHING NEWS ITEMS IN THE POD, MANAGEMENT HAS
PERMITTED COMPLAINANT TO SUBMIT MATTERS FOR PUBLICATION THEREIN. THIS,
I CONCEIVE, AS A PRIVILEGE EXTENDED TO THE UNION, AND NOT A RIGHT TO
WHICH IT IS ENTITLED. FURTHER, RESPONDENT HAS INCLUDED VACANCY
ANNOUNCEMENTS IN VARIOUS ISSUED FOR THE CONVENIENCE OF THOSE EMPLOYEES
WHO MAY HAVE MISSED THE OFFICIAL LISTING THEREOF. WHILE THE UNION WAS
CONCERNED THAT THE SUSPENSION OF POD PUBLICATION FOR 9 DAYS WOULD RESULT
IN SOME EMPLOYEES NOT LEARNING OF THE VACANCIES, THE EMPLOYER HAS
APPARENTLY MET THAT OBJECTION BY LISTING THE POSITIONS WHEN THE
PUBLICATION WAS RESUMED ON AUGUST 21, 1974.
SINCE I CONCLUDE THAT THE UNION HEREIN HAS NO VESTED RIGHTS WITH
RESPECT TO THE POD, EXCEPT INSOFAR AS IT DEROGATES FROM THE BARGAINING
REPRESENTATIVE'S STATUS, I AM CONSTRAINED TO FIND THAT IT CANNOT OBJECT
TO THE SUSPENSION OF ITS PUBLICATION. MOREOVER, THE REVISION BY
MANAGEMENT DID NOT, IN MY OPINION, CONSTITUTE A VIOLATION OF ITS
OBLIGATION TO BARGAIN SINCE IT INVOLVED NO UNILATERAL CHANGES IN WORKING
CONDITIONS OR ATTEMPT TO DEAL WITH EMPLOYEES IN REGARD THERETO.
ACCORDINGLY, AND IN VIEW OF THE FOREGOING, I FIND THAT RESPONDENT DID
NOT VIOLATE SECTION 19(A)(1) OR (6) OF THE ORDER BY SUSPENDING
PUBLICATION OF, AND REVISING, THE POD ON AUGUST 13, 1974.
UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS THE
UNDERSIGNED RECOMMENDS THAT THE COMPLAINT HEREIN AGAINST RESPONDENT BE
DISMISSED IN ITS ENTIRETY.
DATED: AUGUST 25, 1975
WASHINGTON, D.C.
/1/ COMPLAINANT'S EXHIBIT NO. 1.
/2/ COMPLAINANT'S EXHIBIT NO. 2.
5 A/SLMR 576; P. 672; CASE NO. 22-5395(NCR); OCTOBER 31, 1975.
DEPARTMENT OF NAVY,
MILITARY SEALIFT COMMAND
A/SLMR NO. 576
THIS CASE INVOLVED A PETITION FILED BY THE NATIONAL MARITIME UNION OF
AMERICA, AFL-CIO (NMU) SEEKING NATIONAL CONSULTATION RIGHTS (NCR) WITH
RESPECT TO THE MILITARY SEALIFT COMMAND (MSC). THE NMU CONTENDED THAT
THE MSC IS A PRIMARY NATIONAL SUBDIVISION OF THE DEPARTMENT OF THE NAVY
(NAVY) WHICH IT ALLEGED WAS AN "AGENCY" WITHIN THE MEANING OF EXECUTIVE
ORDER 11491, AS AMENDED.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE DEPARTMENT OF THE NAVY
WAS NOT AN "AGENCY" WITHIN THE MEANING OF THE ORDER. ACCORDINGLY, HE
CONCLUDED THAT THE MSC, WHICH IS A COMPONENT OF THE DEPARTMENT OF THE
NAVY, IS NEITHER AN AGENCY NOR A PRIMARY NATIONAL SUBDIVISION OF AN
AGENCY WITHIN THE MEANING OF SECTION 2(A) OF EXECUTIVE ORDER 11491, AS
AMENDED, AND PART 2412 OF THE FEDERAL LABOR RELATIONS COUNCIL'S RULES
AND REGULATIONS. THEREAFTER, THE NMU COULD NOT BE GRANTED NCR WITH
RESPECT TO THE MSC. IN REACHING THIS CONCLUSION, THE ADMINISTRATIVE LAW
JUDGE FOUND THAT THE DEPARTMENT OF DEFENSE (DOD), AS AN "EXECUTIVE
DEPARTMENT," IS AN "AGENCY" WITHIN THE MEANING OF SECTION 2(A) OF THE
ORDER, AND THAT THE DEPARTMENT OF THE NAVY, A FIRST LEVEL OF
ORGANIZATION WITHIN THE DOD, IS A PRIMARY NATIONAL SUBDIVISION THEREOF.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND THE
ENTIRE RECORD IN THE MATTER, AND NOTING PARTICULARLY THAT NO EXCEPTIONS
WERE FILED, THE ASSISTANT SECRETARY ADOPTED THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, AND ORDERED THAT THE
PETITION BE DISMISSED.
DEPARTMENT OF NAVY,
MILITARY SEALIFT COMMAND
AND
NATIONAL MARITIME UNION OF AMERICA,
AFL-CIO
ON JULY 8, 1975, ADMINISTRATIVE LAW JUDGE SAMUEL A. CHAITOVITZ ISSUED
HIS REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING,
CONCLUDING THAT THE MILITARY SEALIFT COMMAND IS NEITHER AN AGENCY NOR A
PRIMARY NATIONAL SUBDIVISION OF AN AGENCY WITHIN THE MEANING OF SECTION
2(A) OF EXECUTIVE ORDER 11491, AS AMENDED, AND PART 2412 OF THE FEDERAL
LABOR RELATIONS COUNCIL'S RULES AND REGULATIONS. ACCORDINGLY, HE
RECOMMENDED THAT THE INSTANT PETITION OF THE NATIONAL MARITIME UNION OF
AMERICA, AFL-CIO, SEEKING NATIONAL CONSULTATION RIGHTS, BE DISMISSED.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 22-5395(NCR) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
OCTOBER 31, 1975
IN THE MATTER OF
DEPARTMENT OF NAVY
MILITARY SEALIFT COMMAND
AND
NATIONAL MARITIME UNION OF AMERICA
AFL-CIO
JOHN J. CONNERTON, ESQ.
LABOR DISPUTES AND APPEALS BRANCH
LABOR AND EMPLOYEE RELATIONS DIVISION
OFFICE OF CIVILIAN MANPOWER
MANAGEMENT, DEPARTMENT OF THE NAVY
WASHINGTON, D.C. 20390
STANLEY B. GRUBER, ESQ.
ABRAHAM E. FREEDMAN
346 WEST SEVENTEENTH STREET
NEW YORK, NEW YORK 1U011
BEFORE: SAMUEL A. CHAITOVITZ
THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREAFTER CALLED THE ORDER). A NOTICE OF REPRESENTATION HEARING WAS
ISSUED ON NOVEMBER 11, 1974 BY THE ASSISTANT REGIONAL DIRECTOR FOR LABOR
MANAGEMENT SERVICES ADMINISTRATION, PHILADELPHIA REGION, BASED UPON A
PETITION FOR NATIONAL CONSULTATION RIGHTS FILED BY THE NATIONAL MARITIME
UNION OF AMERICA, AFL-CIO (HEREAFTER CALLED NMU OR PETITIONER). THE
PETITION WAS FILED SEEKING NATIONAL CONSULTATION RIGHTS WITH RESPECT TO
THE MILITARY SEALIFT COMMAND (HEREAFTER CALLED MSC) CONTENDING MSC IS A
"PRIMARY NATIONAL SUBDIVISION" OF THE DEPARTMENT OF THE NAVY, (HEREAFTER
CALLED NAVY OR DEPARTMENT OF THE NAVY) ALLEGED TO BE AN "AGENCY".
A HEARING WAS HELD BEFORE THE UNDERSIGNED IN WASHINGTON, D.C. ALL
PARTIES WERE REPRESENTED BY COUNSEL AND WERE AFFORDED FULL OPPORTUNITY
TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AND CROSS-EXAMINE
WITNESSES. /1/ OPPORTUNITY WAS ALSO AFFORDED THE PARTIES TO ARGUE
ORALLY AND TO FILE BRIEFS. NMU AND MSC AND NAVY FILED EXTENSIVE BRIEFS,
WHICH HAVE BEEN DULY CONSIDERED BY THE UNDERSIGNED.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR AND FROM ALL THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATION:
THE DEPARTMENT OF DEFENSE (HEREINAFTER CALLED DOD) WAS ORGANIZED
UNDER THE NATIONAL SECURITY ACT OF 1947 AS AMENDED, 50 USC SEC. 401.
THE ACT PROVIDES FOR THE SEPARATE ORGANIZATION OF EACH MILITARY
DEPARTMENT UNDER ITS OWN SECRETARY AND FUNCTIONING UNDER THE DIRECTION,
AUTHORITY AND CONTROL OF THE SECRETARY OF DEFENSE. DIRECTLY UNDER THE
SECRETARY IS THE DEPUTY SECRETARY OF DEFENSE. THERE ARE NINE ASSISTANT
SECRETARIES. IN ADDITION TO THE NINE ASSISTANT SECRETARIES, THERE ARE,
ON ESSENTIALLY THE SAME ORGANIZATION LEVEL THE DIRECTOR OF DEFENSE
RESEARCH AND ENGINEERING, GENERAL COUNSEL, DIRECTOR, DEFENSE
TELECOMMUNICATIONS COMMAND AND CONTROL SYSTEMS AND THE ASSISTANT TO THE
SECRETARY ATOMIC ENERGY. ALL OF THESE ARE PART OF THE SECRETARIAT.
DIRECTLY UNDER THE SECRETARY AND DEPUTY SECRETARY ARE THREE MILITARY
DEPARTMENTS, THE DEPARTMENT OF THE ARMY, THE DEPARTMENT OF THE AIR FORCE
AND THE DEPARTMENT OF THE NAVY. /2/
THE DEPARTMENT OF THE NAVY IS HEADED BY A SECRETARY OF THE NAVY.
DIRECTLY UNDER THE SECRETARY OF THE NAVY IS THE UNDER SECRETARY OF THE
NAVY.
THERE ARE A NUMBER OF ORGANIZATIONAL ELEMENTS WHICH REPORT DIRECTLY
TO THE SECRETARY OF THE NAVY. THEY ARE THE OFFICE OF THE GENERAL
COUNSEL, OFFICE OF INFORMATION, OFFICE OF LEGISLATIVE AFFAIRS, OFFICE OF
THE JUDGE ADVOCATE GENERAL AND THE OFFICE OF PROGRAM APPRAISAL. THERE
ARE FOUR ASSISTANT SECRETARIES OF THE NAVY, THEY ARE THE ASSISTANT
SECRETARY FOR MANPOWER AND RESERVE AFFAIRS, THE ASSISTANT SECRETARY FOR
RESEARCH AND DEVELOPMENT, THE ASSISTANT SECRETARY FOR FINANCIAL
MANAGEMENT AND INSTALLATIONS AND THE ASSISTANT SECRETARY FOR LOGISTICS.
DIRECTLY BELOW AND REPORTABLE TO THE SECRETARY/UNDER SECRETARY IS THE
OFFICE OF THE CHIEF OF NAVAL OPERATIONS (HEREINAFTER REFERRED TO AS
CNO).
THE CNO IS THE CENTRAL REPORTING POINT FOR A NUMBER OF NAVY COMMAND,
BUREAUS AND DIRECTORATES. MSC IS ONE OF THESE COMMAND, OTHER SUCH
COMMANDS AND BUREAUS ARE THE BUREAU OF NAVAL PERSONNEL, THE BUREAU OF
MEDICINE AND SURGERY, OFFICE OF THE OCEANOGRAPHER OF THE NAVY, NAVAL
TELECOMMUNICATIONS COMMAND, NAVAL SECURITY GROUP COMMAND, NAVAL
INTELLIGENCE COMMAND, NAVAL WEATHER SERVICE COMMAND AND THE NAVAL
MATERIAL COMMAND. DIRECTORATES, UNDER CNO, INCLUDING NAVY PROGRAM
PLANNING, COMMAND SUPPORT PROGRAMS, ANTI-SUBMARINE WARFARE (ASW) AND
OCEAN SURVEILLANCE PROGRAMS, RESEARCH DEVELOPMENT, TRAINING AND
EVALUATION (RADT & E) AND NAVAL EDUCATION AND TRAINING.
THE MSC IS A SHIP OPERATING COMMAND AND A COMPONENT OF THE UNITED
STATES NAVY. THIS ONE OF 15 MAJOR ORGANIZATIONAL ENTITIES WHICH REPORT
TO THE CHIEF OF NAVAL OPERATIONS. ITS MISSION IS TO PROVIDE:
(1) RAPID - RESPONSE STRATEGIC SEALIFT
(2) BASE FOR SEALIFT MOBILIZATION EXPANSION
(3) GENERAL SEALIFT SUPPORT FOR DEFENSE ACTIVITIES
(4) SEA TRANSPORTATION FOR SPECIAL PROJECTS
IN PERFORMING ITS MISSION, MSC, ORGANIZATIONALLY CONSISTS OF A
HEADQUARTERS ELEMENT IN WASHINGTON, D.C.; A EUROPEAN AREA COMMAND,
HEADQUARTERED IN BREMERHAVEN, GERMANY; AN ATLANTIC AREA COMMAND,
HEADQUARTERED IN NEW YORK, NEW YORK; A PACIFIC AREA COMMAND,
HEADQUARTERED IN OAKLAND, CALIFORNIA AND A FAR EAST COMMAND,
HEADQUARTERED IN YOKOHAMA, JAPAN. ONLY THE ATLANTIC AREA COMMAND AND
THE PACIFIC AREA COMMAND ARE ENGAGED IN THE OPERATION OF SHIPS.
AS OF NOVEMBER 1974, MSC HAS A TOTAL OF 5293 EMPLOYEES. IN ITS TWO
MAJOR COMMANDS. IT HAD AN ALLOWED CEILING OF 2033 SHIP BOARD EMPLOYEES
IN ITS ATLANTIC COMMAND AND AN ALLOWED CEILING OF 1972 SHIP BOARD
EMPLOYEES IN ITS PACIFIC COMMAND. /3/
THE PETITIONER, HAS EXCLUSIVE RECOGNITION FOR NON-LICENSED SEAMEN IN
THE ATLANTIC AREA COMMAND. APPROXIMATELY 70 PERCENT OF THE SHIP BOARD
EMPLOYEES WOULD BE IN THE NMU UNIT. THEREAFTER, NMU WOULD HAVE
RECOGNITION FOR SOME 1450 SHIP BOARD EMPLOYEES IN THE ATLANTIC AREA
COMMAND ABOVE. /4/
THERE IS NO DISPUTE THAT NMU HOLDS EXCLUSIVE RECOGNITION FOR MORE
THAN 10% OF THE EMPLOYEES OF MSC BUT NMU DOES NOT REPRESENT EITHER 5,000
OR 10% OF THE EMPLOYEES OF THE DEPARTMENT OF THE NAVY. /5/
THE SEAMEN OR CIVILIAN MARINE EMPLOYEES EMPLOYED ON BOARD MSC VESSELS
HAVE UNIQUE PERSONNEL AND PAY REQUIREMENTS. BY STATUTE THEIR PAY IS
FIXED AND ADJUSTED FROM TIME TO TIME AS NEARLY AS IS CONSISTENT WITH THE
PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES AND PRACTICES IN THE
MARITIME INDUSTRY (U.S.C. SEC. 5348). MSC MAKES THE INITIAL
DETERMINATION AS TO WHETHER A PARTICULAR PAY PRACTICE EXISTS IN THE
MARITIME INDUSTRY AND/OR IS "CONSISTENT WITH THE PUBLIC INTEREST".
THEIR PARTICULAR PERSONNEL RULES AND REGULATIONS ARE CONTAINED IN A
DOCUMENT ISSUED BY DIRECTION OF THE SECRETARY OF NAVY ENTITLED CIVILIAN
MARINE PERSONNEL INSTRUCTIONS ("CMPI"). THE CMPI'S ARE ORIGINATED BY
THE COMMANDER, MSC, AS ARE CHANGES IN THOSE INSTRUCTIONS, CONSISTENT
WITH THE NEEDS OF THE SERVICE
AFTER THEIR INITIAL PREPARATION AT MSC HEADQUARTERS, CMPI'S ARE
TRANSMITTED TO THE NAVY'S OFFICE OF CIVILIAN MANPOWER MANAGEMENT
("OCMM") FOR REVIEW FOR CONFORMITY WITH THE POLICIES OF THE NAVY'S
CIVILIAN MANPOWER MANAGEMENT PROGRAM AND FOR APPROVAL. ALL REQUESTS FOR
INTERPRETATION AND RECOMMENDATIONS FOR CHANGE TO THE CMPI'S ARE REQUIRED
TO BE DIRECTED TO THE COMMANDER, MSC.
WITH RESPECT TO SECTION 3(B)(3) OF THE ORDER, THE SECRETARY OF THE
NAVY, AND NOT THE SECRETARY OF DEFENSE, HAS MADE DETERMINATIONS THAT THE
ORDER COULD NOT BE APPLIED TO CERTAIN UNITS WITHIN THE STRUCTURE OF THE
DEPARTMENT OF NAVY BECAUSE OF NATIONAL SECURITY REQUIREMENTS.
WITH RESPECT TO SECTION 15 OF THE ORDER, CONTRACTS NEGOTIATED BETWEEN
NMU AND MSC, ATLANTIC AREA, ARE SUBMITTED TO THE NAVY, AND NOT DOD, FOR
APPROVAL. THE DOD DIRECTIVE DEALING WITH COLLECTIVE BARGAINING, DOD
DIRECTIVE 1426.1 DOES NOT DESIGNATE THE HEAD OF NAVY AS AN OFFICIAL
AUTHORIZED TO APPROVE SUCH AGREEMENTS. INSTEAD, IT AUTHORIZES THE HEAD
OF DOD COMPONENTS TO DELEGATE AUTHORITY TO APPROVE CONTRACTS TO HEADS OF
SUBORDINATE COMMANDS.
WHEN A CONTRACT IS NEGOTIATED BETWEEN AN MSC SUBORDINATE COMMAND AND
A LABOR ORGANIZATION IT IS INITIALLY FORWARDED TO MSC HEADQUARTERS TO
ASSURE THAT THE CONTRACT CONFORMS WITH THE CMPI'S. MSC WILL RETURN THE
CONTRACT TO ITS COMMAND IF IT DETERMINES THE CONTRACT CONTAINS PORTIONS
WHICH ARE VIOLATIVE OF IMPORTANT MSC PRINCIPLES. THE CONTRACT IS ALSO
REVIEWED BY OCMM AT NAVY TO ASSURE CONFORMITY WITH NAVY PRINCIPLES.
DOD DIRECTIVE 1426.1 PROVIDES, IN PART:
"WHEN AN ISSUE DEVELOPS IN CONNECTION WITH NEGOTIATIONS AS TO WHETHER
A PARTICULAR
PUBLISHED POLICY OR REGULATION OF THE DOD COMPONENT CONCERNED IS IN
VIOLATION OF A PROVISION
OF APPLICABLE LAW, REGULATION OF APPROPRIATE AUTHORITY OUTSIDE DOD,
OR EXECUTIVE ORDER 11491,
THE LABOR ORGANIZATION MAY SUBMIT ITS POSITION ON THE MATTER IN
WRITING TO THE HEAD OF THE DOD
COMPONENT VIA THE HEADQUARTERS OF THE NATIONAL OR INTERNATIONAL LABOR
ORGANIZATION WITH WHICH
IT IS AFFILIATED. THE HEAD OF THE DOD COMPONENT SHALL ISSUE, WITHIN
15 DAYS, HIS
INTERPRETATION OF THE PROVISION IN QUESTION. THE NATIONAL PRESIDENT
OF THE LABOR OGANIZATION
OR HIS DESIGNEE MAY APPEAL THIS INTERPRETATION TO THE COUNCIL IN
ACCORDANCE WITH PART 2411 OF
THE COUNCIL'S REGULATIONS (SUBCHAPTER S1, REFERENCE (C)). THE DOD
COMPONENT SHALL PROMPTLY
NOTIFY THE DASD (CPP UPON LEARNING THAT SUCH AN APPEAL HAS BEEN
FILED."
IN MARCH, 1970, IN ACCORDANCE WITH SECTION 23 OF THE ORDER, DOD
ISSUED ITS DIRECTIVE ON LABOR-MANAGEMENT RELATIONS IN THE DEPARTMENT OF
DEFENSE. THE DIRECTIVE, DESIGNATED AS DOD DIRECTIVE 1426.1 WAS REVISED
PURSUANT TO CHANGES IN THE ORDER AND OTHER MATTERS REQUIRING UPDATES.
THE MOST RECENT UPDATE WAS ISSUED ON OCTOBER 9, 1974.
ON FEBRUARY 23, 1971, THE DEPARTMENT OF DEFENSE ISSUED A MEMORANDUM
IMPLEMENTING THE REGULATIONS ISSUED BY THE FEDERAL LABOR RELATIONS
COUNCIL DEALING WITH NATIONAL CONSULTATION RIGHTS. IN THE MEMORANDUM IT
STATED, INTER ALIA:
"THE HEAD OF EACH DOD COMPONENT IS AUTHORIZED, BY SECTION VI. B OF
DOD DIRECTIVE 1426.1,
TO EXTEND NATIONAL CONSULTATION RIGHTS TO LABOR ORGANIZATIONS
REQUESTING SUCH RIGHTS WHICH
MEET THE CRITERIA ESTABLISHED BY THE FEDERAL LABOR RELATIONS COUNCIL.
THESE CRITERIA
. . . ARE SET FORTH IN SECTION 2412.2(B) OF THE ATTACHED REGULATIONS.
WITHIN THE DEPARTMENT
OF DEFENSE, THE FOLLOWING ARE "PRIMARY NATIONAL SUBDIVISIONS" AS
DEFINED IN SECTION 2412.1 OF
THE REGULATIONS:
THE OFFICE OF THE SECRETARY OF DEFENSE: DEPARTMENT OF THE ARMY
DEPARTMENT OF THE NAVY
^DEPARTMENT OF THE AIR FORCE DEFENSE ATOMIC SUPPORT AGENCY DEFENSE
COMMUNICATIONS AGENCY
DEFENSE CONTRACT AUDIT AGENCY DEFENSE SUPPLY AGENCY ARMY AND AIR
FORCE EXCHANGE SERVICE
SUBSEQUENT THERETO, ON MARCH 31, 1971, THE DEPARTMENT OF THE NAVY
ISSUED SECNAVNOTICE 12721 TO ALL NAVAL AND MARINE CORPS ACTIVITIES
EMPLOYING CIVILIANS. THE SUBJECT OF THE NOTICE WAS "NATIONAL
CONSULTATION RIGHTS AND THE TERMINATION OF FORMAL RECOGNITION UNDER
EXECUTIVE ORDER 11491." THE PURPOSE OF THE NOTICE, AS STATED THEREIN,
WAS TO PUBLISH THE POLICY AND PROCEDURES FOR GRANTING OF NATIONAL
CONSULTATION RIGHTS AND FOR THE TERMINATION OF EXISTING GRANTS OF FORMAL
RECOGNITION TO LABOR ORGANIZATIONS. IN SECTION 3 OF THE NOTICE, IT
STATED:
"NATIONAL CONSULTATION RIGHTS MAY BE GRANTED AT THE PRIMARY NATIONAL
SUBDIVISION LEVEL OF
AN AGENCY. WITHIN THE DEPARTMENT OF DEFENSE, THE DEPARTMENT OF THE
NAVY HAS BEEN DESIGNATED
AS A PRIMARY NATIONAL SUBDIVISION AS DEFINED IN PART 2412 OF THE
COUNCIL'S
REGULATIONS. ACCORDINGLY, NATIONAL CONSULTATION RIGHTS WILL BE
GRANTED TO A LABOR
ORGANIZATION WHEN IT REQUEST SUCH RIGHTS AND IT MEETS THE
REQUIREMENTS OF THE COUNCIL'S
REGULATIONS."
ON MAY 22, 1974, NMU WROTE MSC REQUESTING A GRANT OF NATIONAL
CONSULTATION RIGHTS. ITS REQUEST WAS FORWARDED TO OCMM WHICH REPLIED TO
NMU ON JUNE 21, 1974, INDICATING IT WOULD NOT GRANT NATIONAL
CONSULTATION RIGHTS TO NMU BECAUSE MSC WAS NOT, IN ITS VIEW, A "PRIMARY
NATIONAL SUBDIVISION" OF AN "AGENCY" WITHIN THE MEANING OF THE ORDER OR
THE FEDERAL LABOR RELATIONS COUNCIL'S REGULATIONS.
NMU CONTENDS THAT THE DEPARTMENT OF THE NAVY IS AN AGENCY WITHIN THE
MEANING OF SECTION 9 OF THE ORDER AND THAT MSC IS A PRIMARY NATIONAL
SUBDIVISION OF THE DEPARTMENT OF NAVY WITHIN THE MEANING OF SECTION
2412.2 OF THE REGULATIONS OF THE FEDERAL LABOR RELATIONS COUNSEL.
THEREFORE PETITIONER CONTENDS IT QUALIFIES FOR NATIONAL CONSULTATION
RIGHTS BECAUSE IT REPRESENTS AT LEAST 10% OF MSC'S EMPLOYEES.
DEPARTMENT OF NAVY AND MSC ASSERT THAT WITHIN THE MEANING OF THE
ORDER AND FLRC'S REGULATIONS DOD IS THE AGENCY AND NAVY IS A PRIMARY
NATIONAL SUBDIVISION OF DOD. MSC THEREFORE CANNOT BE A PRIMARY NATIONAL
SUBDIVISION AND NMU, CANNOT QUALIFY FOR NATIONAL CONSULTATION RIGHTS
SINCE IT DOES NOT REPRESENT EITHER 5,000 OR 10% OF THE EMPLOYEES OF
NAVY.
THE BASIC ISSUE PRESENTED IS WHETHER MSC IS A "PRIMARY NATIONAL
SUBDIVISION OF AN AGENCY" WITHIN THE MEANING OF FLRC'S RULES AND
REGULATIONS PERTAINING TO NATIONAL CONSULTATION RIGHTS (5 CFR 2412.1 AND
2412.2).
SECTION 9(A) OF THE ORDER PROVIDES, INTER ALIA, THAT "AN AGENCY SHALL
ACCORD NATIONAL CONSULTATION RIGHTS TO A LABOR ORGANIZATION /6/ WHICH
QUALIFIES UNDER CRITERIA ESTABLISHED BY THE FEDERAL LABOR RELATIONS
COUNCIL AS THE REPRESENTATIVE OF A SUBSTANTIAL NUMBER OF EMPLOYEES OF
THE AGENCY." THIS SECTION EVOLVED BECAUSE THERE WAS DISSATISFACTION WITH
THE PRIOR EXECUTIVE ORDER 10988, WHICH PROVIDED FOR AN APPARENTLY
UNSATISFACTORY PROCESS CALLED "NATIONAL FORMAL RECOGNITION". IN ORDER
TO PROVIDE A MORE SATISFACTORY PROCEDURE THE "REPORT AND RECOMMENDATION
ON LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE, AUGUST 1969"
ISSUED BY THE INTERAGENCY COMMITTEE ON FEDERAL LABOR RELATIONS, /7/
RECOMMENDED THAT THE PROCESS CALLED "NATIONAL CONSULTATION RIGHTS"
INCLUDE:
" - NOTIFICATION TO THE LABOR ORGANIZATION BY THE AGENCY OF PROPOSED
SUBSTANTIVE CHANGES IN
PERSONNEL POLICIES THAT ARE OF CONCERN TO EMPLOYEES IT REPRESENTS;
- OPPORTUNITY FOR THE LABOR ORGANIZATION TO COMMENT ON SUCH
PROPOSALS;
- OPPORTUNITY FOR THE LABOR ORGANIZATION TO SUGGEST CHANGES IN
PERSONNEL POLICIES THAT ARE
OF INTEREST TO EMPLOYEES IT REPRESENTS AND TO HAVE ITS SUGGESTIONS
RECEIVE CAREFUL
CONSIDERATION".
SECTION 2(A) OF THE ORDER PROVIDES:
"(A) 'AGENCY MEANS AN EXECUTIVE DEPARTMENT, A GOVERNMENT CORPORATION,
AND AN INDEPENDENT
ESTABLISHMENT AS DEFINED IN SECTION 104 OF TITLE 5, UNITED STATES
CODE, EXCEPT THE GENERAL
ACCOUNTING OFFICE."
THE FLRC, IN ACCORDANCE WITH ITS MANDATE UNDER SECTION 9(A) OF THE
ORDER FORMULATED THE CRITERIA UNDER WHICH AN "AGENCY" SHOULD ACCORD
NATIONAL CONSULTATION RIGHTS (5 CFR 2412.2(A)). THE FLRC WENT ON AND
PROVIDED IN 5 CFR 24.2(B) THE CRITERIA UNDER WHICH "AN AGENCY'S PRIMARY
NATIONAL SUBDIVISION WHICH HAS AUTHORITY TO FORMULATE SUBSTANTIVE
PERSONNEL POLICY" SHALL ACCORD NCR. IN THE LATTER SITUATION SEC.
2412.2(B) PROVIDES THAT THE "PRIMARY NATIONAL SUBDIVISION" SHALL ACCORD
NCR TO A LABOR THAT REQUESTS NCR AT THAT LEVEL AND HOLDS EXCLUSIVE
RECOGNITION FOR EITHER 5,000 OR 10% OF THE EMPLOYEES OF THE PRIMARY
NATIONAL SUBDIVISION. THE FLRC RULES AND REGULATIONS DEFINES A PRIMARY
NATIONAL SUBDIVISION OF AN AGENCY AS "A FIRST-LEVEL ORGANIZATION SEGMENT
WHICH HAS FUNCTIONS NATIONAL IN SCOPE THAT ARE IMPLEMENTED IN FIELD
ACTIVITIES" (5 CFR 2412.1). THE FLRC WENT ON AND DEFINED SUBSTANTIVE
PERSONNEL POLICY AS:
" . . . A STANDARD OR RULE WHICH (A) CREATES AND DEFINES RIGHTS OF
EMPLOYEES OR LABOR
ORGANIZATIONS, INCLUDING CONDITIONS RELATING TO SUCH RIGHTS; (B)
SETS A DEFINITE COURSE OR
METHOD OF ACTION TO GUIDE AND DETERMINE PROCEDURES AND DECISIONS OF
SUBORDINATE ORGANIZATIONAL
UNITS ON A PERSONNEL OR LABOR RELATIONS MATTER; AND (C) IS
FORMULATED WITHIN THE DISCRETIONARY
AUTHORITY OF THE ISSUING ORGANIZATION AND IS NOT MERELY A RESTATEMENT
OF A COURSE OR METHOD OF
ACTION PRESCRIBED BY HIGHER AUTHORITY."
IT IS CLEAR THAT NCR, AS VIEWED IN BOTH THE ORDER AND FLRC'S
REGULATIONS, IS A PROCEDURE THAT WAS SET UP IN ORDER TO PERMIT A LABOR
ORGANIZATION THAT HAS SUBSTANTIAL REPRESENTATIONAL INTEREST TO CONSULT
AND HAVE SOME OPPORTUNITY FOR INPUT WITH RESPECT TO CHANGES IN PERSONNEL
POLICIES ON A NATIONAL LEVEL, IN THOSE SITUATIONS WHERE THE LABOR
ORGANIZATION WOULD NOT OTHERWISE HAVE SUCH AN OPPORTUNITY. HOWEVER, THE
RIGHTS GRANTED BY NCR AS ACTUALLY FORMULATED ARE SOMEWHAT MORE LIMITED.
SUCH CONSULTATION RIGHTS ARE NOT APPARENTLY AVAILABLE WITH RESPECT TO
EVERY GOVERNMENT ORGANIZATION THAT MAY FORMULATE SUBSTANTIVE PERSONNEL
POLICIES ON THE NATIONAL LEVEL; RATHER THEY ARE AVAILABLE ONLY WITH
RESPECT TO AN AGENCY OR A PRIMARY NATIONAL SUBDIVISION OF AN AGENCY.
IT IS CLEAR, AND NO PARTY CONTENDS TO THE CONTRARY, THAT MSC IS NOT
AN AGENCY WITHIN THE MEANING OF SECTIONS 2 AND 9 OF THE ORDER. HOWEVER
THE FIRST QUESTION PRESENTED IS WHETHER DOD OR NAVY IS SUCH AN AGENCY.
PETITIONER CONTENDS THAT THE DEPARTMENT OF NAVY IS SUCH AN AGENCY
RELYING IN PART AT LEAST ON HOW THE TERM "AGENCY" WAS DEFINED IN VARIOUS
PORTIONS OF THE U.S. CODE (E.G. 5 USC 5721). HOWEVER, THE TERM ITSELF
IS DEFINED IN SECTION 2(A) OF THE ORDER AND THEREFORE THE DEFINITIONS IN
THE U.S. CODE, ARE NOT CONTROLLING OR VERY PERSUASIVE. SECTION 2(A) OF
THE ORDER DEFINES AGENCY AS AN "EXECUTIVE DEPARTMENT" OR A "GOVERNMENT
CORPORATION" OR "AN INDEPENDENT ESTABLISHMENT" AS DEFINED IN 5 USC 104.
NEITHER NAVY NOR DOD IS EITHER A GOVERNMENT CORPORATION OR INDEPENDENT
ESTABLISHMENT AS SET FORTH IN SECTION 2(A) OF THE ORDER. IT SEEMS
CLEAR, HOWEVER, THAT DOD IS AN EXECUTIVE DEPARTMENT AND THEREFORE IS AN
AGENCY, WITHIN THE MEANING OF SECTION 2(A) OF THE ORDER. THE QUESTION
IS, IS NAVY AN EXECUTIVE DEPARTMENT, AND THEREFORE, AN AGENCY. ALTHOUGH
THE U.S. CODE IS NOT CONTROLLING WITH RESPECT TO THE DEFINITION OF
AGENCY, SINCE AGENCY IS DEFINED IN THE ORDER, THE TERM, "EXECUTIVE
DEPARTMENT" IS NOT DEFINED IN THE ORDER, AND THEREFORE THE U.S. CODE IS
RELEVANT IN SEEKING TO DEFINE THIS TERM. IN THIS REGARD 5 USC 101 LISTS
THE EXECUTIVE DEPARTMENTS AS:
ONE OF THE SECTIONS REFERRED TO BY NMU SPEAKS IN TERMS OF THE "HEAD
OF AN EXECUTIVE DEPARTMENT OR MILITARY DEPARTMENT." /8/ THEREBY DRAWING
A DISTINCTION BETWEEN AN EXECUTIVE DEPARTMENT AND A MILITARY DEPARTMENT.
IN LIGHT OF ALL THE FOREGOING IT IS CONCLUDED THAT NAVY IS NOT AN
EXECUTIVE DEPARTMENT AND THEREFORE IS NOT AN AGENCY AS DEFINED BY
SECTION 2(A) OF THE ORDER.
NMU POINTS TO A NUMBER OF INSTANCES WHEREIN THE SECRETARY OF THE NAVY
HAS ACTED IN AREAS WHERE THE ORDER PROVIDES THAT THE HEAD OF AN AGENCY
MAY ACT. /9/ HOWEVER, THERE IS NO SHOWING THAT THERE WAS NO DELEGATION
OF AUTHORITY IN THESE AREAS AND, IN ANY EVENT, BECAUSE THERE MAY BE SOME
CONFUSION IN THE APPLICATION OF THE ORDER IN OTHER AREAS, DOES NOT MEAN
SUCH CONFUSION SHOULD BE APPLIED TO SECTION 9. /10/
THEREFORE, ABSENT A SPECIFIC RULING TO THE CONTRARY I AM CONSTRAINED
TO CONCLUDE THAT THE DEFINITION OF AGENCY AS SET FORTH IN SECTION 2(A)
OF THE ORDER DOES APPLY TO SECTION 9 OF THE ORDER AND UNDER THAT
DEFINITION NAVY IS NOT AN AGENCY. NAVY IS HOWEVER THE NEXT REAL LEVEL
OF ORGANIZATION WITHIN THE DOD AND IT IS THEREFORE CONCLUDED THAT NAVY
IS A PRIMARY NATIONAL SUBDIVISION OF THE AGENCY. /11/ IN THESE
CIRCUMSTANCES MSC, ALTHOUGH NATIONAL IN SCOPE, IS NOT A PRIMARY NATIONAL
SUBDIVISION OF AN AGENCY, BUT IS RATHER AT THE SECOND LEVEL OR
ORGANIZATION BELOW AND WITHIN DOD. /12/
IN THIS REGARD IT IS RECOGNIZED THAT MSC DOES MAKE PERSONNEL POLICIES
ON A NATIONAL LEVEL AND THAT THE HOLDING HEREIN, MAY FORECLOSE NMU FROM
REQUIRING CONSULTATION FROM MSC WITH RESPECT TO SUCH POLICIES. THIS MAY
BE UNFORTUNATE, BUT IT HAS BEEN RECOGNIZED THAT PROBLEMS IN THIS AREA
HAVE EXISTED IN THE PAST AND THE "REPORT AND RECOMMENDATIONS OF THE
FEDERAL LABOR RELATIONS COUNCIL ON THE AMENDMENT OF EXECUTIVE ORDER
11491, AS AMENDED" /13/ RECOGNIZED SUCH PROBLEMS. AS A RESULT FLRC
RECOMMENDED, SUPRA, PAGE 35-37, WITH RESPECT TO SECTION 11(A) OF THE
ORDER THAT ONLY REGULATIONS ISSUED AT THE AGENCY HEADQUARTERS LEVEL OR
AT THE PRIMARY NATIONAL SUBDIVISION LEVEL BAR NEGOTIATIONS AT THE LOCAL
LEVEL AND THAT THE MEANING OF PRIMARY NATIONAL SUBDIVISION SHOULD BE
CONSISTENT WITH SEC. 2412 OF THE RULES AND REGULATIONS PERTAINING TO
NATIONAL CONSULTATION RIGHTS. FLRC'S RECOMMENDED CHANGES WERE MADE IN
THE ORDER.
BASED ON ALL OF THE FOREGOING IT IS CONCLUDED THAT MSC IS NEITHER AN
AGENCY NOR A PRIMARY NATIONAL SUBDIVISION OF AN AGENCY WITHIN THE
MEANING OF THE ORDER OF FLRC'S RULES AND REGULATIONS AND THAT THEREFORE
NMU DOES NOT QUALIFY FOR NATIONAL CONSULTATION RIGHTS.
IN VIEW OF ALL OF THE FOREGOING, IT IS RECOMMENDED THAT THE PETITION
HEREIN BE DISMISSED.
DATED: JULY 8, 1975
WASHINGTON, D.C.
/1/ THE TRANSCRIPT IS HEREBY CORRECTED TO REFLECT THE CHANGES SET
FORTH IN APPENDIX "A" ATTACHED HERETO.
/2/ IN ADDITION TO THE THREE MILITARY DEPARTMENTS, THERE ARE SIX
SEPARATE DEFENSE AGENCIES REPORTABLE DIRECTLY TO THE SECRETARY/DEPUTY
SECRETARY OF DEFENSE.
/3/ ITS ON-BOARD NUMBER OF SHIP BOARD EMPLOYEES IN THE PACIFIC
COMMAND WAS 2142 SHIP BOARD EMPLOYEES DUE, IN PART, TO A MERGER OF THE
FAR EAST COMMAND INTO THE PACIFIC COMMAND.
/4/ THE NMU HAD EXCLUSIVE RECOGNITION IN THE FAR EAST AREA COMMAND.
A QUESTION CONCERNING REPRESENTATION, STILL PENDING, WAS RAISED WHEN THE
FAR EAST AREA COMMAND WAS MERGED INTO THE PACIFIC COMMAND. THE MILITARY
SEA TRANSPORT UNION, AFFILIATED WITH THE SEAFARERS' INTERNATIONAL UNION,
AFL-CIO HAS EXCLUSIVE RECOGNITION FOR UNLICENSED SEAMEN AND STEWARDS IN
THE PACIFIC AREA COMMAND.
/5/ DOD EMPLOYS APPROXIMATELY 950,000 CIVIL SERVICE EMPLOYEES AND
300,000 NON-APPROPRIATED FUND PERSONNEL, WHILE NAVY EMPLOYS
APPROXIMATELY 300,000 CIVILIAN EMPLOYEES.
/6/ NO QUESTION HAS BEEN RAISED THAT NMU IS A LABOR ORGANIZATION.
/7/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE, REPORT AND
RECOMMENDATION, EXECUTIVE ORDER 11491, OCTOBER 29, 1969. U.S. GOVERNMENT
PRINTING OFFICE, 1969. 368-816; AND GOVERNMENT EMPLOYEES RELATIONS
REPORT, REFERENCE FILE (GERR RF), PUBLISHED BY BNA, GERR RF-1, 21:1011.
/8/ 5 USC 301.
/9/ SOME EXAMPLES ARE DETERMINATIONS MADE BY THE SECRETARY OF THE
NAVY RELATING TO EXEMPTIONS OF INTELLIGENCE UNITS UNDER SECTION 3(B)(3)
OF THE ORDER AND THE FACT THAT NMU-MSC CONTRACTS ARE REFERRED TO NAVY
FOR APPROVED UNDER SECTION 15 OF THE ORDER, AND NOT TO DOD.
/10/ SIMILARLY THERE MAY BE SOME CONFUSION AS TO WHETHER THE SECTION
2(A) DEFINITION OF AGENCY APPLIES TO THE ENTIRE ORDER. IN THE NASA
CASE, A/SLMR NO. 457, IT WAS HELD THAT NASA, THE AGENCY, DID NOT HAVE A
BARGAINING OBLIGATION, BUT A SUBDIVISION OF NASA DID, ALTHOUGH SECTIONS
10, 11, 12, 13, 15, AND 19(A) 5 AND (6) ALL REFER TO AN AGENCY'S
OBLIGATION TO RECOGNIZE AND BARGAIN WITH A LABOR ORGANIZATION.
/11/ IN THIS REGARD ORGANIZATIONAL CHARTS, AS SUCH, ARE NOT BEING
RELIED ON, BUT THE CHARTS AND THE TESTIMONY AS TO HOW THE ORGANIZATIONS
ACTUALLY FUNCTION ARE.
/12/ IF IT WERE CONCLUDED THAT NAVY IS AN AGENCY, THEN IT WOULD BE
DETERMINED THAT MSC IS A PRIMARY NATIONAL SUBDIVISION OF AN AGENCY.
/13/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE, U.S. FEDERAL
LABOR RELATIONS COUNCIL, 1975.
5 A/SLMR 575; P. 668; CASE NO. 40-6038(RO); OCTOBER 31, 1975.
GENERAL SERVICES ADMINISTRATION,
REGIONAL OFFICE, REGION 4
A/SLMR NO. 575
THIS CASE AROSE AS THE RESULT OF A PETITION FILED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2067, AFL-CIO, SEEKING A UNIT
OF ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES AT THE REGIONAL
OFFICE, GENERAL SERVICES ADMINISTRATION, REGION 4, LOCATED AT ATLANTA,
GEORGIA. THE ACTIVITY CONTENDED THAT THE PETITIONED FOR UNIT WAS NOT
APPROPRIATE BECAUSE IT EXCLUDED OTHER EMPLOYEES OF THE REGION WHO SHARE
A COMMUNITY OF INTEREST WITH EMPLOYEES IN THE PETITIONED FOR UNIT AND,
FURTHER, THAT THE PETITIONED FOR UNIT WOULD NOT PROMOTE EFFECTIVE
DEALINGS OR EFFICIENCY OF AGENCY OPERATIONS.
UNDER ALL OF THE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT
THE EMPLOYEES IN THE PETITIONED FOR UNIT SHARE A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM OTHER EMPLOYEES OF THE
REGION. IN THIS REGARD, THE ASSISTANT SECRETARY NOTED, AMONG OTHER
THINGS, THAT THE PETITIONED FOR UNIT IS COMPRISED PRIMARILY OF GS
EMPLOYEES IN SPECIALIST OCCUPATIONS, HEADQUARTERED TOGETHER IN ONE
BUILDING IN ATLANTA, WHILE OTHER REGIONAL EMPLOYEES ARE MOSTLY IN WAGE
GRADE CLASSIFICATIONS, DISPERSED IN NUMEROUS FIELD LOCATIONS OVER AN
EIGHT STATE AREA.
ALSO, THE ASSISTANT SECRETARY FOUND THAT THE PETITIONED FOR UNIT
WOULD PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
IN THIS CONNECTION, HE NOTED THE ABSENCE OF EVIDENCE ADDUCED REGARDING
THE IMPACT OF THE CLAIMED REGIONAL OFFICE UNIT ON EFFECTIVE DEALINGS AND
EFFICIENCY OF OPERATIONS EXPERIENCED IN REGION 4 AS WELL AS THOSE
REGIONS OF THE AGENCY WHERE LESS THAN REGIONWIDE UNITS HAVE BEEN
RECOGNIZED OR CERTIFIED AND WHERE THERE CURRENTLY EXIST NEGOTIATED
AGREEMENTS.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT AN ELECTION BE
CONDUCTED IN THE UNIT FOUND APPROPRIATE.
GENERAL SERVICES ADMINISTRATION,
REGIONAL OFFICE, REGION 4
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2067, AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER RENEE B. RUX. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS SUBMITTED BY
THE PARTIES, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 2067, AFL-CIO, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE REGIONAL OFFICE,
GENERAL SERVICES ADMINISTRATION, REGION 4, EXCLUDING EMPLOYEES ENGAGED
IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, AND SUPERVISORS AS DEFINED IN THE ORDER. /1/ AT
THE HEARING, THE AFGE INDICATED THAT, IN THE ALTERNATIVE, IT WOULD BE
WILLING TO PROCEED TO AN ELECTION IN A UNIT WHICH WOULD INCLUDE ALL
GENERAL SERVICES ADMINISTRATION EMPLOYEES IN THE ATLANTA METROPOLITAN
AREA, EXCLUDING EMPLOYEES CURRENTLY IN EXCLUSIVELY RECOGNIZED UNITS.
/2/
THE ACTIVITY CONTENDS THAT BOTH THE PETITIONED FOR UNIT AND THE
ALTERNATIVE UNIT ARE INAPPROPRIATE BECAUSE THE EMPLOYEES IN THE PROPOSED
UNITS DO NOT HAVE A COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM
OTHER EMPLOYEES IN REGION 4, AND BECAUSE THE PROPOSED UNITS WOULD NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
THE GENERAL SERVICES ADMINISTRATION, HEREIN CALLED GSA, HAS ITS
CENTRAL OFFICE IN WASHINGTON, D.C., AND HAS TEN REGIONAL OFFICES, EACH
UNDER THE DIRECTION OF A REGIONAL ADMINISTRATOR. ATLANTA, GEORGIA, THE
HEADQUARTERS FOR REGION 4, ENCOMPASSES THE STATES OF NORTH CAROLINA,
SOUTH CAROLINA, KENTUCKY, TENNESSEE, GEORGIA, ALABAMA, MISSISSIPPI AND
FLORIDA AND EMPLOYS SOME 2200 INDIVIDUALS IN THE ATLANTA REGIONAL OFFICE
AND IN NUMEROUS FIELD LOCATIONS. THERE ARE FOUR PROGRAM SERVICES IN
REGION 4: THE AUTOMATED DATA AND TELECOMMUNICATIONS SERVICE (ADTS),
WHICH PROVIDES TELECOMMUNICATIONS AND DATA SERVICES FOR FEDERAL
AGENCIES; THE FEDERAL SUPPLY SERVICE (FSS), WHICH PURCHASES SUPPLIES
FOR FEDERAL AGENCIES AND OPERATES A FLEET OF VEHICLES; THE NATIONAL
ARCHIVES AND RECORDS SERVICE (NARS), WHICH STORES AND MAINTAINS
GOVERNMENT RECORDS AND DOCUMENTS AND ITEMS OF HISTORICAL INTEREST; AND
THE PUBLIC BUILDINGS SERVICE (PBS), WHICH CONSTRUCTS, PURCHASES, LEASES,
AND MAINTAINS PROPERTY FOR FEDERAL AGENCIES. IN ADDITION, GSA PROVIDES
VARIOUS SUPPORT FUNCTIONS, SUCH AS PAYROLL SERVICES AND LEGAL COUNSEL
FOR EACH OF ITS FOUR SERVICES. EACH OF THE GSA'S FOUR SERVICES IN
REGION 4 IS HEADED BY A REGIONAL ADMINISTRATOR. THE EVIDENCE
ESTABLISHES THAT ADMINISTRATION OF THE REGION IS CENTRALIZED IN THE
REGIONAL OFFICE WITH FIELD SUPERVISORS HAVING LIMITED DISCRETION IN THE
IMPLEMENTATION OF PROGRAMS AND DIRECTIVES.
THE PARTIES STIPULATED THAT PROGRAM FUNCTIONS, JOB DUTIES AND JOB
DESCRIPTIONS ARE UNIFORM THROUGHOUT THE REGION. IN THIS REGARD, THE
RECORD REVEALED THAT ALL EMPLOYEES OF THE REGION ARE SUBJECT TO COMMON
PERSONNEL POLICIES AND REGULATIONS, WITH PERSONNEL ACTIONS BEING
PROCESSED THROUGH THE REGIONAL PERSONNEL OFFICES AND LABOR RELATIONS
MATTERS HANDLED BY THE REGIONAL LABOR RELATIONS OFFICER AND THE OFFICE
OF THE REGIONAL COUNSEL. JOB VACANCIES MAY BE POSTED LOCALLY,
REGIONALLY, OR NATIONALLY, BUT IN REDUCTIONS-IN-FORCE, THE RECORD
REVEALS THAT THE AREA OF CONSIDERATION IS THE COMMUTING AREA INVOLVED.
THE CLAIMED UNIT IN THE REGIONAL OFFICE CONSISTS OF APPROXIMATELY 435
EMPLOYEES. /3/ ALL REGIONAL OFFICE EMPLOYEES ARE HEADQUARTERED IN THE
SAME BUILDING IN ATLANTA WHILE FIELD EMPLOYEES ARE DISPERSED IN SOME 99
FIELD LOCATIONS OVER AN EIGHT STATE AREA. WITH RESPECT TO THE JOB
CLASSIFICATIONS EMPLOYED IN REGION 4, THE RECORD SHOWS THAT EXCEPT FOR
SOME 15 EMPLOYEES IN THE PRINTING PLANT, ALL REGIONAL OFFICE EMPLOYEES
ARE IN GS CLASSIFICATIONS CONSISTING PRIMARILY OF SPECIALIST OCCUPATIONS
TOGETHER WITH CLERICAL EMPLOYEES. BY CONTRAST, THE MAJORITY OF REGION 4
EMPLOYEES IN FIELD LOCATIONS ARE IN WAGE GRADE CLASSIFICATIONS TOGETHER
WITH TELEPHONE OPERATORS AND CLERICAL EMPLOYEES. REGARDING THE PROGRAM
SERVICES IN THE FIELD, THE ADTS EMPLOYEES ARE MOSTLY TELEPHONE
OPERATORS; FSS IS COMPRISED PRIMARILY OF CLASSIFICATIONS ENGAGED IN
AUTOMOTIVE SERVICES; AND THE LARGEST SERVICE, PBS CONSISTS MAINLY OF
CUSTODIAL LABORERS. NONE OF THESE FOREGOING OCCUPATIONAL
CLASSIFICATIONS ARE PRESENT IN THE REGIONAL OFFICE.
ALTHOUGH ALL REGION 4 EMPLOYEES SHARE THE SAME OVERALL MISSION, THE
RECORD REFLECTS THAT CONTACT BETWEEN THE FIELD LOCATIONS AND THE
REGIONAL OFFICE GENERALLY IS THROUGH SUPERVISORY PERSONNEL AND THAT
THERE IS MINIMAL INTERACTION AMONG THE EMPLOYEES OF THE VARIOUS FIELD
LOCATIONS IN THE FOUR PROGRAMS SERVICES AND THOSE OF THE REGIONAL
OFFICE. WHILE THERE IS SOME CONTACT BETWEEN THESE TWO EMPLOYEE GROUPS
THROUGH JOB TRAINING PROGRAMS, THIS USUALLY IS LIMITED TO MANAGERIAL AND
CLERICAL EMPLOYEES. FURTHER, THE RECORD REFLECTS THAT TRANSFERS BETWEEN
THE HEADQUARTERS AND THE FIELD USUALLY INVOLVE SUPERVISORY PERSONNEL AND
THAT, FOR THE MOST PART, FIELD AND REGIONAL OFFICE EMPLOYEES DO NOT
SHARE COMMON IMMEDIATE SUPERVISION.
UNDER ALL OF THESE CIRCUMSTANCES, AND NOTING PARTICULARLY THE LACK OF
COMMON SUPERVISION, THE LIMITED INTERACTION BETWEEN REGIONAL OFFICE AND
FIELD EMPLOYEES AND THE COMMONALITY OF LOCATION AND JOB CLASSIFICATIONS
POSSESSED BY REGIONAL OFFICE EMPLOYEES, I FIND THAT EMPLOYEES IN THE
PETITIONED FOR UNIT SHARE A COMMUNITY OF INTEREST SEPARATE AND DISTINCT
FROM THE FIELD EMPLOYEES OF REGION 4. MOREOVER, I FIND THAT SUCH A
HOMOGENEOUS UNIT WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS AND THAT THE ACTIVITY'S CONTENTION TO THE CONTRARY
ARE, AT BEST, SPECULATIVE AND CONJECTURAL. /4/ IN THIS CONNECTION, IT
WAS NOTED THAT, IN CONSIDERING THE QUESTION OF EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS, THE ACTIVITY ADDRESSED ITSELF PRIMARILY
TO ALLEGED PROBLEMS RESULTING FROM A PROLIFERATION OF UNITS IN REGION 4,
RATHER THAN ADDUCING EVIDENCE SPECIFICALLY RELATED TO THE IMPACT OF THE
CLAIMED REGIONAL OFFICE UNIT ON EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS. MOREOVER, IT DID NOT ADDUCE SPECIFIC COUNTERVAILING
EVIDENCE AS TO A LACK OF EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS EXPERIENCED IN REGION 4 AS WELL AS THOSE OTHER REGIONS OF GSA
WHERE LESS THAN REGIONWIDE UNITS HAVE BEEN RECOGNIZED OR CERTIFIED AND
WHERE THERE CURRENTLY EXIST NEGOTIATED AGREEMENTS. /5/
UNDER ALL OF THESE CIRCUMSTANCES, I FIND THAT THE PETITIONED FOR UNIT
IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION AND I S ALL
DIRECT AN ELECTION IN SUCH UNIT.
THE PARTIES STIPULATED THAT EMPLOYEES CLASSIFIED AS ARCHITECT,
MECHANICAL ENGINEER, CONSTRUCTION ENGINEER, ELECTRICAL ENGINEER, SAFETY
ENGINEER AND GENERAL ENGINEER WERE PROFESSIONAL EMPLOYEES WITHIN THE
MEANING OF THE ORDER. THEY ALSO AGREED TO EXCLUDE FROM ANY UNIT FOUND
APPROPRIATE EMPLOYEES CLASSIFIED AS EQUAL OPPORTUNITY OFFICER AND EQUAL
OPPORTUNITY SPECIALIST INVOLVED WITH EQUAL OPPORTUNITY PROGRAMS AS THEY
APPLIED TO EMPLOYEES OF THE ACTIVITY, EMPLOYEES IN THE OFFICE OF THE
REGIONAL COUNSEL, A LEGAL ADMINISTRATIVE ASSISTANT AND AN ADMINISTRATIVE
OFFICER. THE PARTIES FURTHER STIPULATED THAT EMPLOYEES CLASSIFIED AS
BUILDING FUND COORDINATOR, TRANSPORTATION MANAGEMENT SPECIALIST, QUALITY
ASSURANCE SPECIALIST, BUDGET ANALYST, TRAFFIC MANAGER, MANAGEMENT
ASSISTANT, BUILDING MANAGEMENT SPECIALIST, FINANCIAL MANAGEMENT
SPECIALIST AND MANAGEMENT ANALYST SHOULD BE INCLUDED IN ANY UNIT FOUND
APPROPRIATE.
IN THE ABSENCE OF ANY EVIDENCE THAT THE ABOVE STIPULATIONS WERE
IMPROPER, I FIND THAT SUCH STIPULATIONS SHOULD BE ACCEPTED. /6/
BASED ON THE FOREGOING CIRCUMSTANCES, I HEREBY DIRECT AN ELECTION
IMPROPER, I FIND THAT SUCH STIPULATIONS SHOULD BE ACCEPTED. /6/
BASED ON THE FOREGOING CIRCUMSTANCES, I HEREBY DIRECT AN ELECTION IN
THE FOLLOWING UNIT: /7/
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE REGIONAL
OFFICE, GENERAL SERVICES
ADMINISTRATION, REGION 4, EXCLUDING EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN
A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, CONFIDENTIAL
EMPLOYEES AND SUPERVISORS AS
DEFINED IN THE ORDER.
IT IS NOTED THAT THE UNIT FOUND APPROPRIATE INCLUDES PROFESSIONAL
EMPLOYEES. THE ASSISTANT SECRETARY IS PROHIBITED BY SECTION 10(B)(4) OF
THE ORDER FROM INCLUDING PROFESSIONAL EMPLOYEES IN THE UNIT WITH
EMPLOYEES WHO ARE NOT PROFESSIONAL UNLESS A MAJORITY OF THE PROFESSIONAL
EMPLOYEES VOTES FOR INCLUSION IN SUCH A UNIT. ACCORDINGLY, THE DESIRES
OF THE PROFESSIONAL EMPLOYEES AS TO INCLUSION IN THE UNIT WITH
NONPROFESSIONAL EMPLOYEES MUST BE ASCERTAINED. I SHALL, THEREFORE,
DIRECT SEPARATE ELECTIONS IN THE FOLLOWING GROUPS:
VOTING GROUP (A): ALL PROFESSIONAL EMPLOYEES OF THE REGIONAL OFFICE,
GENERAL SERVICES ADMINISTRATION, REGION 4, EXCLUDING NONPROFESSIONAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, CONFIDENTIAL EMPLOYEES
AND SUPERVISORS AS DEFINED IN THE ORDER.
VOTING GROUP (B): ALL NONPROFESSIONAL EMPLOYEES OF THE REGIONAL
OFFICE, GENERAL SERVICES ADMINISTRATION, REGION 4, EXCLUDING
PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS,
CONFIDENTIAL EMPLOYEES AND SUPERVISORS AS DEFINED IN THE ORDER.
THE EMPLOYEES IN THE NONPROFESSIONAL VOTING GROUP (B) WILL BE POLLED
WHETHER OR NOT THEY DESIRE TO BE REPRESENTED BY THE AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, LOCAL 2067, AFL-CIO.
THE EMPLOYEES IN THE PROFESSIONAL VOTING GROUP (A) WILL BE ASKED TWO
QUESTIONS ON THEIR BALLOTS: (1) WHETHER OR NOT THEY WISH TO BE INCLUDED
WITH THE NONPROFESSIONAL EMPLOYEES FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION, AND (2) WHETHER OR NOT THEY WISH TO BE REPRESENTED FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2067, AFL-CIO. IN THE EVENT THAT THE
MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) ARE CAST IN FAVOR OF
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, THE BALLOTS
OF VOTING GROUP (A) SHALL BE COMBINED WITH THOSE OF VOTING GROUP (B).
UNLESS A MAJORITY OF THE VALID VOTES IN VOTING GROUP (A) ARE CASE FOR
INCLUSION IN THE SAME UNIT AS NONPROFESSIONAL EMPLOYEES, THEY WILL BE
TAKEN TO HAVE INDICATED THEIR DESIRE TO CONSTITUTE A SEPARATE UNIT, AND
AN APPROPRIATE CERTIFICATION WILL BE ISSUED INDICATING WHETHER OR NOT
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2067, AFL-CIO,
WAS SELECTED BY THE PROFESSIONAL EMPLOYEE UNIT.
THE UNIT DETERMINATION IN THE SUBJECT CASE IS BASED, IN PART, THEN,
UPON THE RESULTS OF THE ELECTION AMONG THE PROFESSIONAL EMPLOYEES.
HOWEVER, I WILL NOW MAKE THE FOLLOWING FINDINGS IN REGARD TO THE
APPROPRIATE UNIT:
1. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES VOTES FOR INCLUSION
IN THE SAME UNIT AS NONPROFESSIONAL EMPLOYEES, I FIND THAT THE FOLLOWING
EMPLOYEES WILL CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION WITHIN THE MEANING OF SECTION 10 OF THE ORDER:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE REGIONAL
OFFICE, GENERAL SERVICES
ADMINISTRATION, REGION 4, EXCLUDING EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN
A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, CONFIDENTIAL
EMPLOYEES AND SUPERVISORS AS
DEFINED IN THE ORDER.
2. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES DOES NOT VOTE FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT
THE FOLLOWING TWO GROUPS OF EMPLOYEES CONSTITUTE SEPARATE UNITS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE MEANING
OF SECTION 10 OF THE ORDER:
(A) ALL NONPROFESSIONAL EMPLOYEES OF THE REGIONAL OFFICE, GENERAL
SERVICES ADMINISTRATION,
REGION 4, EXCLUDING PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS,
CONFIDENTIAL EMPLOYEES AND
SUPERVISORS AS DEFINED IN THE ORDER.
(B) ALL PROFESSIONAL EMPLOYEES OF THE REGIONAL OFFICE, GENERAL
SERVICES ADMINISTRATION,
REGION 4, EXCLUDING NONPROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS,
CONFIDENTIAL EMPLOYEES AND
SUPERVISORS AS DEFINED IN THE ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA DIRECTOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WHO WERE DISCHARGED FOR CAUSE SINCE THE
DESIGNATED PAYROLL PERIOD AND WHO HAVE BEEN REHIRED OR REINSTATED BEFORE
THE ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE
TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2067, AFL-CIO.
DATED, WASHINGTON, D.C.
OCTOBER 31, 1975
/1/ THE UNIT DESCRIPTION APPEARS AS AMENDED AT THE HEARING.
/2/ THE RECORD INDICATES THAT CURRENTLY THERE ARE 17 EXCLUSIVE
RECOGNIZED UNITS IN REGION 4.
/3/ REGION 4 HAS APPROXIMATELY 900 ELIGIBLE EMPLOYEES.
/4/ CF DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION, SAN FRANCISCO, A/SLMR NO. 559.
/5/ CF. DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION (DCASR), SAN FRANCISCO, DEFENSE CONTRACT ADMINISTRATION
SERVICES DISTRICT (DCASD), SEATTLE, WASHINGTON, A/SLMR NO. 564.
/6/ THE PARTIES STIPULATED AT THE EXCLUSION OF AN EMPLOYEE
TEMPORARILY SERVING AS A MANAGEMENT INTERN IN THE PERSONNEL OFFICE
PENDING PERMANENT ASSIGNMENT TO THAT OFFICE. IN THE ABSENCE OF ANY
EVIDENCE THAT SUCH STIPULATION WAS IMPROPER, I FIND THAT THE EMPLOYEE IN
QUESTION SHOULD BE EXCLUDED FROM THE UNIT FOUND APPROPRIATE AS AN
EMPLOYEE ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY. IT SHOULD BE NOTED, HOWEVER, THAT THE RECORD DOES
NOT SUPPORT A FINDING THAT ALL EMPLOYEES OF THE ACTIVITY IN THE
CLASSIFICATION MANAGEMENT INTERN SHOULD NECESSARILY BE EXCLUDED FROM THE
UNIT FOUND APPROPRIATE. WITH RESPECT TO THE PARTIES' ATTEMPT TO EXCLUDE
AN EMPLOYEE CLASSIFIED AS A CRIMINAL INVESTIGATOR UNDER SECTION 3(B)(4)
OF THE ORDER, THE RECORD INDICATED THAT, WHILE THE EMPLOYEE INVOLVED WAS
ENGAGED IN THE INVESTIGATION OF ALLEGED CRIMES COMMITTED ON GSA
PROPERTY, HE WAS NOT EMPLOYED IN EITHER OF THE TWO OFFICES WHICH WERE
REFERRED TO BY THE GSA ADMINISTRATOR IN A MEMORANDUM SUBMITTED BY THE
PARTIES IN SUPPORT OF THEIR STIPULATION. ACCORDINGLY, AND NOTING THAT
GUARDS ARE NO LONGER PRECLUDED FROM BEING INCLUDED IN UNITS WITH
NONGUARD EMPLOYEES, I FIND INSUFFICIENT GROUNDS FOR EXCLUDING THE
EMPLOYEE CLASSIFIED AS A CRIMINAL INVESTIGATOR FROM THE UNIT FOUND
APPROPRIATE.
/7/ IN VIEW OF THE DISPOSITION HEREIN, I FIND IT UNNECESSARY TO
DECIDE WHETHER THE ALTERNATIVE UNIT SOUGHT BY THE AFGE ALSO WAS
APPROPRIATE.
5 A/SLMR 574; P. 665; CASE NO. 42-2781(CA); OCTOBER 31, 1975.
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS, 31ST COMBAT SUPPORT GROUP,
HOMESTEAD AIR FORCE BASE,
HOMESTEAD, FLORIDA
A/SLMR NO. 574
THIS CASE, WHICH WAS BEFORE THE ASSISTANT SECRETARY BASED ON A
STIPULATION OF FACTS, ACCOMPANYING EXHIBITS AND BRIEFS SUBMITTED BY THE
PARTIES, INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1167 (NFFE) AGAINST THE
DEPARTMENT OF THE AIR FORCE, HEADQUARTERS, 31ST COMBAT SUPPORT GROUP,
HOMESTEAD AIR FORCE BASE, HOMESTEAD, FLORIDA (RESPONDENT). THE
COMPLAINT ALLEGED THAT THE RESPONDENT HAD VIOLATED SECTION 19(A)(1), (5)
AND (6) OF THE ORDER BY REFUSING TO ENTER INTO NEGOTIATIONS FOR A NEW
COLLECTIVE BARGAINING AGREEMENT WITH THE NFFE. THE RESPONDENT
CONTENDED, IN ESSENCE, THAT THE COMPLAINT SHOULD BE DISMISSED AS IT WAS
PRECLUDED FROM NEGOTIATING A NEW AGREEMENT WITH THE NFFE DUE TO A
PENDING QUESTION CONCERNING REPRESENTATION.
THE RECORD REVEALED THAT IN JULY 1967 THE NFFE WAS GRANTED EXCLUSIVE
RECOGNITION FOR A UNIT OF, " . . . ALL AIR FORCE CIVILIAN EMPLOYEES
SERVICED BY THE CENTRAL CIVILIAN PERSONNEL OFFICE AT HOMESTEAD AFB,
FLORIDA . . . " THEREAFTER, THE RESPONDENT AND THE NFFE ENTERED INTO A
NEGOTIATED AGREEMENT WHICH BECAME EFFECTIVE ON APRIL 4, 1972, AND WAS
FOR A TERM OF TWO YEARS, WITH PROVISION FOR AUTOMATIC RENEWAL ON A
YEAR-TO-YEAR BASIS IF NEITHER PARTY SOUGHT TO RENEGOTIATE THE AGREEMENT.
UPON THE EXPIRATION OF THE AGREEMENT IN APRIL 1974, IT WAS RENEWED FOR
AN ADDITIONAL YEAR INASMUCH AS NEITHER PARTY HAD SOUGHT TO RENEGOTIATE.
ON AUGUST 23, 1974, LOCAL F-182, INTERNATIONAL ASSOCIATION OF
FIREFIGHTERS (IAFF) FILED A PETITION SEEKING A UNIT OF FIREFIGHTERS
EMPLOYED BY THE RESPONDENT. THE RESPONDENT MOVED TO DISMISS THE IAFF'S
PETITION ON THE BASIS IT WAS FILED UNTIMELY. A NOTICE OF HEARING WAS
ISSUED IN THIS MATTER BY THE ASSISTANT REGIONAL DIRECTOR OF THE
LABOR-MANAGEMENT SERVICES ADMINISTRATION (LMSA) ON OCTOBER 9, 1974, A
HEARING WAS CONDUCTED ON MAY 20, 1975, RESULTING IN A DETERMINATION BY
THE ASSISTANT SECRETARY (A/SLMR NO. 549), ISSUED ON AUGUST 28, 1975,
THAT THE FIREFIGHTERS WERE PART OF THE EXISTING NFFE UNIT AND THAT,
THEREFORE, THE PETITION FILED BY THE IAFF WAS UNTIMELY.
ON JANUARY 6, 1975, THE PRESIDENT OF NFFE LOCAL 2267 HAD SENT A
LETTER TO THE RESPONDENT'S CIVILIAN PERSONNEL OFFICER STATING THAT IT
WISHED TO ENTER INTO NEGOTIATIONS FOR A NEW AGREEMENT FOR ITS
EXCLUSIVELY RECOGNIZED UNIT. THE RESPONDENT REFUSED TO NEGOTIATE A NEW
AGREEMENT STATING THAT IT COULD NOT ENTER INTO NEGOTIATIONS WITH THE
NFFE BECAUSE IT WAS OBLIGATED TO MAINTAIN A NEUTRAL POSTURE PENDING
RESOLUTION OF THE REPRESENTATION QUESTION RAISED BY THE IAFF'S PETITION.
HOWEVER, ITS OFFER TO EXTEND THE EXISTING AGREEMENT FOR A PERIOD NOT TO
EXCEED 90 DAYS AFTER A FINAL DECISION ON THE REPRESENTATION PETITION WAS
AGREED TO BY THE NFFE ON MARCH 3, 1975, SUBSEQUENT TO THE FILING OF THE
UNFAIR LABOR PRACTICE CHARGE IN THE INSTANT CASE ON FEBRUARY 3, 1975.
THE ASSISTANT SECRETARY CONCLUDED THAT THE COMPLAINT FILED BY THE
NFFE SHOULD BE DISMISSED. THUS, IT WAS NOTED THAT IT WAS HELD IN
DEPARTMENT OF THE NAVY, NAVAL AIR REWORK FACILITY, JACKSONVILLE,
FLORIDA, A/SLMR NO. 155, THAT WHILE IT WAS REASONABLE AND WOULD PROMOTE
DESIRED STABILITY FOR AN ACTIVITY TO CONTINUE TO ADMINISTER AN EXISTING
NEGOTIATED AGREEMENT WITH A LABOR ORGANIZATION WHILE A QUESTION
CONCERNING REPRESENTATION IS PENDING, AN ACTIVITY WOULD BREACH ITS
OBLIGATION OF NEUTRALITY BY ENTERING INTO NEGOTIATIONS FOR A NEW
AGREEMENT WITH AN INCUMBENT LABOR ORGANIZATION UNDER SUCH CIRCUMSTANCES.
IN ACCORDANCE WITH THESE PRINCIPLES, THE ASSISTANT SECRETARY HELD THAT
IN THE INSTANT CASE WHERE A QUESTION CONCERNING REPRESENTATION HAD BEEN
RAISED WITH RESPECT TO A PORTION OF THE NFFE'S UNIT, THE RESPONDENT
COULD EXTEND THE TERMS OF THE EXISTING AGREEMENT BUT WAS NOT OBLIGATED
TO NEGOTIATE A NEW AGREEMENT. IN THIS REGARD, THE ASSISTANT SECRETARY
NOTED THAT THE RECORD INDICATED THAT THE RESPONDENT DID NOT USE THE
PENDENCY OF THE REPRESENTATION QUESTION AS A PRETEXT TO AVOID ITS
OBLIGATIONS OWED TO THE NFFE AS THE INCUMBENT EXCLUSIVE REPRESENTATIVE
BUT, RATHER, ACTED IN GOOD FAITH IN ITS DEALINGS WITH THE NFFE. THUS,
THE RESPONDENT FILED A MOTION TO DISMISS THE IAFF'S PETITION WITH THE
ASSISTANT REGIONAL DIRECTOR; OFFERED TO EXTEND ITS EXISTING NEGOTIATED
AGREEMENT WITH THE NFFE PENDING THE RESOLUTION OF THE REPRESENTATION
QUESTION; AND THE EVIDENCE ESTABLISHING THAT, PRIOR TO THE RESPONDENT'S
REFUSAL TO NEGOTIATE, THE ASSISTANT REGIONAL DIRECTOR HAD ISSUED A
NOTICE OF HEARING WITH RESPECT TO THE IAFF'S PETITION. UNDER THESE
CIRCUMSTANCES, THE ASSISTANT SECRETARY ORDERED THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY.
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS, 31ST COMBAT SUPPORT GROUP,
HOMESTEAD AIR FORCE BASE,
HOMESTEAD, FLORIDA
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1167
THIS MATTER IS BEFORE THE ASSISTANT SECRETARY PURSUANT TO ACTING
ASSISTANT REGIONAL DIRECTOR WILLIAM D. SEXTON'S JUNE 19, 1975, ORDER
TRANSFERRING CASE TO THE ASSISTANT SECRETARY OF LABOR PURSUANT TO
SECTION 206.5(A) OF THE ASSISTANT SECRETARY'S REGULATIONS. UPON
CONSIDERATION OF THE ENTIRE RECORD IN THE SUBJECT CASE, WHICH INCLUDES
THE PARTIES' STIPULATION OF FACTS AND ACCOMPANYING EXHIBITS, AND BRIEFS
FILED BY BOTH PARTIES, I FIND AS FOLLOWS:
THE COMPLAINANT, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
1167, HEREINAFTER CALLED THE NFFE, WAS GRANTED EXCLUSIVE RECOGNITION IN
JULY 1967 FOR A UNIT OF " . . . ALL AIR FORCE CIVILIAN EMPLOYEES
SERVICED BY THE CENTRAL CIVILIAN PERSONNEL OFFICE AT HOMESTEAD, AFB,
FLORIDA . . . " THEREAFTER, THE RESPONDENT ACTIVITY AND THE NFFE ENTERED
INTO A NEGOTIATED AGREEMENT WHICH BECAME EFFECTIVE ON APRIL 4, 1972, AND
WAS FOR A TERM OF TWO YEARS, WITH PROVISION FOR AUTOMATIC RENEWAL ON A
YEAR-TO-YEAR BASIS. IT PROVIDED ALSO THAT A PARTY WISHING TO TERMINATE
OR RENEGOTIATE THE AGREEMENT SHOULD NOTIFY THE OTHER PARTY, IN WRITING,
OF ITS INTENT TO TERMINATE OR RENEGOTIATE NOT MORE THAN 90 AND NOT LESS
THAN 60 DAYS PRIOR TO THE EXPIRATION OF THE AGREEMENT. INASMUCH AS
NEITHER PARTY SERVED NOTICE ON THE OTHER OF ITS DESIRE TO RENEGOTIATE
THE AGREEMENT DURING THE PRESCRIBED PERIOD, THE AGREEMENT AUTOMATICALLY
WAS RENEWED IN 1974, WITH A NEW EXPIRATION DATE OF APRIL 3, 1975.
ON AUGUST 23, 1974, LOCAL F-182, INTERNATIONAL ASSOCIATION OF
FIREFIGHTERS, HEREINAFTER CALLED IAFF, FILED A PETITION SEEKING AN
ELECTION IN A UNIT OF ALL NONSUPERVISORY FIREFIGHTERS, CREW CHIEFS AND
FIRE INSPECTORS EMPLOYED BY THE RESPONDENT. THE IAFF ASSERTED, IN
SUBSTANCE, THAT THE FIREFIGHTER CLASSIFICATIONS COVERED BY THE PETITION
WERE NOT PART OF THE NFFE'S EXISTING UNIT BUT WERE, IN EFFECT, NEW
EMPLOYEE CLASSIFICATIONS WHICH WERE UNPRESENTED. ON THE OTHER HAND,
BOTH THE RESPONDENT AND THE NFFE TOOK THE POSITION THAT THE CLAIMED
EMPLOYEES WERE PART OF THE EXISTING UNIT REPRESENTED BY THE NFFE AND,
THUS, THE NEGOTIATED AGREEMENT BETWEEN THE RESPONDENT AND THE NFFE
CONSTITUTED A BAR TO THE IAFF'S PETITION. IN THIS CONNECTION, THE
RESPONDENT FILED A MOTION TO DISMISS THE IAFF'S PETITION WITH THE
ASSISTANT REGIONAL DIRECTOR OF THE LABOR-MANAGEMENT SERVICES
ADMINISTRATION (LMSA) IN ATLANTA, GEORGIA, ON THE BASIS THAT SUCH
PETITION WAS FILED UNTIMELY. THE RESPONDENT SUBSEQUENTLY SENT A LETTER
TO THE LMSA AREA DIRECTOR IN MIAMI, FLORIDA, ASSERTING THAT THE UNIT
SOUGHT WAS INAPPROPRIATE AND REITERATING ITS CONTENTION THAT THE CLAIMED
EMPLOYEES WERE PART OF THE NFFE'S UNIT AND, THUS, THE IAFF'S PETITION
WAS BARRED BY AN EXISTING NEGOTIATED AGREEMENT.
THE LMSA ASSISTANT REGIONAL DIRECTOR DETERMINED THAT THERE WAS
FACTUAL ISSUES INVOLVED WHICH COULD BEST BE RESOLVED ON THE BASIS OF
RECORD TESTIMONY AND, ACCORDINGLY, HE ISSUED A NOTICE OF HEARING ON
OCTOBER 9, 1974, WHICH HEARING SUBSEQUENTLY WAS HELD ON MAY 20, 1975.
/1/
ON JANUARY 6, 1975, THE PRESIDENT OF NFFE LOCAL 1167 SENT A LETTER TO
THE RESPONDENT'S CIVILIAN PERSONNEL OFFICER STATING THAT THE NFFE WISHED
TO ENTER INTO NEGOTIATIONS FOR A NEW AGREEMENT. THE REQUEST TO
RENEGOTIATE WAS FILED WITHIN THE 90 TO 60 DAY PERIOD PRECEDING THE
EXPIRATION DATE OF THE PARTIES' RENEWED AGREEMENT. THE RESPONDENT
REPLIED TO THE NFFE'S REQUEST ON JANUARY 23, 1975, STATING THAT IT COULD
NOT ENTER INTO NEGOTIATIONS WITH THE NFFE BECAUSE IT WAS OBLIGATED TO
MAINTAIN A NEUTRAL POSTURE PENDING RESOLUTION OF THE REPRESENTATION
QUESTION RAISED BY THE IAFF'S PETITION. HOWEVER, THE RESPONDENT OFFERED
TO EXTEND THE THEN CURRENT NEGOTIATED AGREEMENT FOR A PERIOD NOT TO
EXCEED 90 DAYS AFTER A FINAL DECISION WAS RENDERED IN THE REPRESENTATION
PROCEEDING. SUBSEQUENTLY, BY LETTER DATED MARCH 3, 1975, THE NFFE
AGREED TO THE RESPONDENT'S PROPOSAL TO EXTEND THE THEN CURRENT
NEGOTIATED AGREEMENT. NEVERTHELESS, BETWEEN JANUARY 23, 1975, AND ITS
LETTER OF MARCH 3, 1975, THE NFFE FILED A CHARGE WITH THE RESPONDENT
ALLEGING THAT THE LATTER HAD VIOLATED SECTION 19(A)(1), (5) AND (6) OF
THE ORDER BY REFUSING TO ENTER INTO NEGOTIATIONS FOR A NEW AGREEMENT.
IN THIS REGARD, IT CONTENDED THAT THE POSSIBLE DIMINUTION THE SCOPE OF
THE BARGAINING UNIT DID NOT LESSEN THE RESPONDENT'S OBLIGATION TO
BARGAIN; THAT AN AGENCY OR ACTIVITY IS OBLIGATED ONLY TO MAINTAIN A
NEUTRAL STANCE IN A SITUATION WHERE A RIVAL LABOR ORGANIZATION HAS FILED
A TIMELY AND VALID CHALLENGE; AND THAT THE CHALLENGE FILED BY THE IAFF
IN THE REPRESENTATION MATTER WAS NEITHER TIMELY NOR VALID. FURTHER, THE
NFFE CONTENDED, IN SUBSTANCE, THAT THE RESOLUTION OF THE REPRESENTATION
QUESTION WOULD RENDER THE RESPONDENT'S POSITION MEANINGLESS, I.E., THAT
IF THE ASSISTANT SECRETARY DETERMINED THAT THE FIREFIGHTERS WERE PART OF
THE NFFE'S UNIT, THEN THE IAFF'S PETITION WOULD BE DISMISSED AS
UNTIMELY, AND IF THE ASSISTANT SECRETARY CONCLUDED THAT THE FIREFIGHTERS
WERE NOT PART OF THE EXISTING UNIT, THEN THE RESPONDENT'S REFUSAL TO
NEGOTIATE ON THE BASIS OF THE PENDING REPRESENTATION QUESTION WAS
GROUNDLESS. ON FEBRUARY 14, 1975, THE NFFE FILED THE COMPLAINT IN THE
INSTANT CASE REITERATING THE ARGUMENTS MADE IN ITS PRE-COMPLAINT CHARGE.
IN ITS MOTION TO THE LMSA AREA OFFICE AND IN ITS BRIEF FILED WITH THE
ASSISTANT SECRETARY, THE RESPONDENT ASSERTED THAT THE NFFE'S UNFAIR
LABOR PRACTICE COMPLAINT SHOULD BE DISMISSED. IN THIS REGARD, IT
ARGUED, AMONG OTHER THINGS, THAT IT WAS OBLIGATED TO REMAIN NEUTRAL
DURING THE PENDENCY OF A REPRESENTATION PETITION WHICH RAISED A VALID
QUESTION CONCERNING REPRESENTATION. THE RESPONDENT NOTED THAT IN
DEPARTMENT OF THE NAVY, NAVAL AIR REWORK FACILITY, JACKSONVILLE,
FLORIDA, A/SLMR NO. 155, THE ASSISTANT SECRETARY HAD CONCLUDED THAT
WHILE IT WAS REASONABLE, AND PROMOTED DESIRABLE STABILITY, FOR AN
ACTIVITY TO CONTINUE TO ADMINISTER AN EXISTING NEGOTIATED AGREEMENT WITH
AN INCUMBENT LABOR ORGANIZATION WHILE A QUESTION CONCERNING
REPRESENTATION WAS PENDING, AN ACTIVITY WOULD BREACH ITS OBLIGATION OF
NEUTRALITY BY ENTERING INTO NEGOTIATIONS WITH AN INCUMBENT LABOR
ORGANIZATION FOR A NEW AGREEMENT UNDER SUCH CIRCUMSTANCES.
IN MY VIEW, AND CONSISTENT WITH THE HOLDING IN A/SLMR NO. 155, IN THE
INSTANT CASE, WHEN A QUESTION CONCERNING REPRESENTATION CLEARLY HAD BEEN
RAISED WITH RESPECT TO A PORTION OF THE NFFE'S EXCLUSIVELY RECOGNIZED
UNIT, WHILE THE RESPONDENT WAS OBLIGATED TO CONTINUE TO HONOR ITS
EXISTING AGREEMENT WITH THE NFFE THROUGHOUT ITS DURATION AND COULD
PROPERLY EXTEND THE PENDENCY OF THE REPRESENTATION QUESTIONS AS A
PRETEXT TO AVOID ITS OBLIGATIONS OWED TO THE NFFE AS THE INCUMBENT
EXCLUSIVE REPRESENTATIVE BUT, RATHER, CLEARLY ACTED IN GOOD FAITH IN ITS
DEALINGS WITH THE NFFE. THUS, IT FILED A MOTION TO DISMISS THE IAFF'S
PETITION WITH THE ASSISTANT REGIONAL DIRECTOR; OFFERED TO EXTEND ITS
EXISTING NEGOTIATED AGREEMENT WITH THE NFFE PENDING THE RESOLUTION OF
THE REPRESENTATION QUESTION; AND THE EVIDENCE ESTABLISHES THAT PRIOR TO
THE NFFE'S REQUEST TO NEGOTIATE, THE ASSISTANT REGIONAL DIRECTOR HAD
ISSUED A NOTICE OF HEARING WITH RESPECT TO THE IAFF'S PETITION.
UNDER THESE CIRCUMSTANCES, I FIND THAT THE RESPONDENT DID NOT VIOLATE
SECTION 19(A)(1), (5) AND (6) OF THE ORDER BY REFUSING TO NEGOTIATE A
NEW AGREEMENT WITH THE NFFE AS THERE EXISTED A VALID QUESTION CONCERNING
REPRESENTATION WITH RESPECT TO A PORTION OF THE UNIT REPRESENTED
EXCLUSIVELY BY THE NFFE. ACCORDINGLY, I SHALL ORDER THAT THE COMPLAINT
HEREIN BE DISMISSED.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 42-2781(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
OCTOBER 31, 1975
/1/ ON AUGUST 28, 1975, THE ASSISTANT SECRETARY ISSUED HIS DECISION
AND ORDER IN THE REPRESENTATION PROCEEDING. SEE DEPARTMENT OF THE AIR
FORCE, 31ST COMBAT SUPPORT GROUP, HOMESTEAD AIR FORCE BASE, HOMESTEAD,
FLORIDA, A/SLMR NO. 549. IT WAS FOUND THAT THE EVIDENCE ESTABLISHED
THAT THE EMPLOYEES SOUGHT BY THE IAFF WERE PART OF THE EXISTING UNIT
COVERED BY A NEGOTIATED AGREEMENT AND THAT THE IAFF'S PETITION,
THEREFORE, WAS FILED UNTIMELY. ACCORDINGLY, THE IAFF'S PETITION WAS
DISMISSED.
5 A/SLMR 573; P. 657; CASE NO. 70-4160; OCTOBER 31, 1975.
UNITED STATES DEPARTMENT OF AGRICULTURE,
FOREST SERVICE,
PACIFIC SOUTHWEST AND RANGE
EXPERIMENT STATION,
BERKELEY, CALIFORNIA
A/SLMR NO. 573
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3217 (AFGE),
ALLEGING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE
ORDER BY DENYING THE REQUEST FOR THE PROMOTION EVALUATION RECORDS USED
BY THE RESPONDENT IN SELECTING AN EMPLOYEE TO FILL A VACANT POSITION.
THE RESPONDENT CONTENDED THAT THE EVALUATION RECORDS SOUGHT BY THE AFGE
WERE BOTH CONFIDENTIAL AND PRIVATE AND THAT TO HAVE PROVIDED THE RECORDS
WOULD HAVE BEEN IN VIOLATION OF THE PROVISIONS OF THE FEDERAL PERSONNEL
MANUAL (FPM) AND THE PARTIES' NEGOTIATED AGREEMENT. IN ADDITION, IT
NOTED THAT THE REQUEST WAS NOT MADE IN THE CONTEXT OF A SPECIFIC
GRIEVANCE AND THAT THE AFGE REFUSED TO ATTEND A MEETING TO DISCUSS THE
MATTER.
THE ADMINISTRATIVE LAW JUDGE CITED THE DECISION OF THE FEDERAL LABOR
RELATIONS COUNCIL IN DEPARTMENT OF DEFENSE, STATE OF NEW JERSEY, A/SLMR
NO. 323, FLRC NO. 73A-59, IN REJECTING THE DEFENSE OF THE RESPONDENT
THAT THE FPM PROHIBITS PRODUCTION OF THE DOCUMENTS SOUGHT BY THE
COMPLAINANT. HE NOTED, IN THIS CONNECTION, THAT THE COUNCIL CONCLUDED
THAT SUCH DOCUMENTS COULD BE PRODUCED AS LONG AS THEY WERE "SANITIZED"
TO PROTECT THE PRIVACY AND CONFIDENTIALITY OF THE EMPLOYEES WHOSE
RECORDS WERE INVOLVED. WITH RESPECT TO THE RESPONDENT'S USE OF THE
NEGOTIATED AGREEMENT AS A DEFENSE, THE ADMINISTRATIVE LAW JUDGE NOTED
THAT THE SPECIFIC AGREEMENT LANGUAGE ALLEGED TO BE A DEFENSE TRACKED THE
FPM LANGUAGE SPECIFICALLY REJECTED BY THE COUNCIL IN THE ABOVE-NOTED
CASE AS PROHIBITING ACCESS TO PROMOTION EVALUATION RECORDS. THE
ADMINISTRATIVE LAW JUDGE CONCLUDED ALSO THAT THE FACT NO GRIEVANCE WAS
FILED WAS NOT DETERMINATIVE. IN THIS REGARD, HE CONSTRUED THE LANGUAGE
OF THE COUNCIL'S DECISION IN THE ABOVE-NOTED CASE, TO INCLUDE AN
INCIPIENT GRIEVANCE. IN ADDITION, HE NOTED THAT THE ASSISTANT SECRETARY
HELD IN DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, KANSAS CITY PAYMENT CENTER, BUREAU OF RETIREMENT AND
SURVIVORS INSURANCE, A/SLMR NO. 411, THAT THE REFUSAL OF AN ACTIVITY TO
MAKE AVAILABLE RELEVANT AND NECESSARY INFORMATION IN CONNECTION WITH
DETERMINING WHETHER OR NOT TO INITIATE GRIEVANCES WAS VIOLATIVE OF THE
ORDER. HOWEVER, THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE REQUEST FOR
EVALUATION RECORDS MADE BY THE AFGE IN THE INSTANT CASE WAS
SUBSTANTIALLY BROADER THAN THAT WHICH THE RESPONDENT HAD THE OBLIGATION
TO PRODUCE. THEREFORE, THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE
BURDEN SHIFTED BACK TO THE AFGE, ONCE THE RESPONDENT DENIED THE
EVALUATION RECORDS BASED ON CONFIDENTIALITY AND PRIVACY, TO REQUEST
SPECIFICALLY WHAT IT WAS SEEKING AND WILLING TO ACCEPT. IN ADDITION,
THE ADMINISTRATIVE LAW JUDGE CONSIDERED THE AFGE'S REFUSAL TO ATTEND A
MEETING TO DISCUSS THE MATTER TO BE AN INDICATION OF AN INCLINATION NOT
TO MODIFY ITS ORIGINAL REQUEST.
THE ASSISTANT SECRETARY AGREED WITH THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDATION THAT THE COMPLAINT BE DISMISSED. IN THIS REGARD, THE
ASSISTANT SECRETARY NOTED THAT HE HAD BEEN ADVISED ADMINISTRATIVELY THAT
THE AFGE WAS DECERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF THE
RESPONDENT'S EMPLOYEES ON JULY 31, 1975, PURSUANT TO A DECERTIFICATION
PETITION AND AN AGREEMENT FOR A CONSENT ELECTION. THEREFORE, HE FOUND
THAT THE ISSUES RAISED IN THE COMPLAINT WERE RENDERED MOOT. HOWEVER,
THE ASSISTANT SECRETARY DID NOT ADOPT THE RATIONALE OF THE
ADMINISTRATIVE LAW JUDGE THAT THE AFGE'S REQUEST FOR EVALUATION RECORDS
WAS SUBSTANTIALLY BROADER THAN THAT WHICH THE COUNCIL, IN THE
ABOVE-NOTED CASE, HELD AN ACTIVITY WOULD BE REQUIRED TO PRODUCE. IN THE
ASSISTANT SECRETARY'S VIEW, THE AFGE'S REQUEST WAS SUFFICIENTLY SPECIFIC
AND IT SOUGHT RELEVANT AND NECESSARY INFORMATION WHICH, UNDER NORMAL
CIRCUMSTANCES, THE RESPONDENT WOULD HAVE BEEN REQUIRED TO PRODUCE.
MOREOVER, THE FACT THAT THE INFORMATION WAS NOT REQUESTED IN "SANITIZED"
FORM DID NOT WARRANT A DENIAL OF THE REQUEST IN TOTO AND DID NOT SHIFT
THE BURDEN TO THE EXCLUSIVE REPRESENTATIVE TO MAKE A SECOND REQUEST
CONCERNING WHAT IT IS SEEKING OR WILLING TO ACCEPT.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE UNFAIR LABOR
PRACTICE COMPLAINT BE DISMISSED.
UNITED STATES DEPARTMENT OF AGRICULTURE,
FOREST SERVICE,
PACIFIC SOUTHWEST AND RANGE
EXPERIMENT STATION,
BERKELEY, CALIFORNIA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3217
ON AUGUST 14, 1975, ADMINISTRATIVE LAW JUDGE SALVATORE J. ARRIGO
ISSUED HIS REPORT AND RECOMMENDATION 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. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATION.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE SUBJECT CASE, I HEREBY ADOPT
THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW
JUDGE, ONLY TO THE EXTENT CONSISTENT HEREWITH.
THE INSTANT COMPLAINT ALLEGED ESSENTIALLY THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY DENYING THE
COMPLAINANT'S REQUEST FOR THE PROMOTION EVALUATION RECORDS USED BY THE
RESPONDENT IN SELECTING AN EMPLOYEE TO FILL A VACANT POSITION. IN THIS
REGARD, THE COMPLAINANT CONTENDED THAT IT WAS DENIED INFORMATION
NECESSARY FOR IT TO ACT INTELLIGENTLY ON BEHALF OF AN EMPLOYEE IT WAS
RESPONSIBLE FOR REPRESENTING UNDER SECTION 10(E) OF THE ORDER.
I HAVE BEEN ADVISED ADMINISTRATIVELY THAT SUBSEQUENT TO THE FILING OF
THE UNFAIR LABOR PRACTICE COMPLAINT IN THE SUBJECT CASE, A
DECERTIFICATION PETITION WAS FILED BY AN EMPLOYEE IN CASE NO. 70-4580
AND THAT, PURSUANT TO THE DECERTIFICATION PETITION AND AN AGREEMENT FOR
A CONSENT ELECTION, THE COMPLAINANT WAS DECERTIFIED ON JULY 31, 1975, AS
THE EXCLUSIVE REPRESENTATIVE OF THE UNIT INVOLVED IN THE INSTANT CASE.
UNDER THESE CIRCUMSTANCES, I FIND THAT THE ISSUES RAISED BY THE INSTANT
UNFAIR LABOR PRACTICE COMPLAINT CONCERNING THE OBLIGATION OF THE
RESPONDENT TO SUPPLY CERTAIN DATA TO ITS EMPLOYEES' EXCLUSIVE
REPRESENTATIVE HAVE BEEN RENDERED MOOT. ACCORDINGLY, I SHALL ORDER THAT
THE COMPLAINT IN THE INSTANT CASE BE DISMISSED. /1/
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 70-4160 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
OCTOBER 31, 1975
/1/ WHILE I AGREE WITH THE ADMINISTRATIVE LAW JUDGE, FOR THE REASON
STATED ABOVE, THAT DISMISSAL OF THE COMPLAINT IN THIS MATTER IS
WARRANTED, I DO NOT ADOPT HIS RATIONALE THAT, IN THE CIRCUMSTANCES OF
THIS CASE, THE COMPLAINANT'S "REQUEST FOR EVALUATION INFORMATION HEREIN
WAS SUBSTANTIALLY BROADER THAN THAT WHICH THE COUNCIL HELD AN ACTIVITY
WOULD BE REQUIRED TO PRODUCE." NOR DO I ADOPT HIS CONCLUSION "THAT IT
WAS THE OBLIGATION OF THE UNION AFTER THE DOCUMENTS WERE DENIED ON THE
BASIS OF CONFIDENTIALITY OF PRIVACY TO SPECIFICALLY REQUEST WHAT IT WAS
THEY WERE SEEKING OR WILLING TO ACCEPT." IN MY VIEW, THE COMPLAINANT'S
REQUEST HEREIN FOR EVALUATION INFORMATION WAS SUFFICIENTLY SPECIFIC AND
IT SOUGHT RELEVANT AND NECESSARY INFORMATION WHICH, UNDER NORMAL
CIRCUMSTANCES, THE RESPONDENT WOULD BE REQUIRED TO PRODUCE. THUS, WHERE
THERE IS A SPECIFIC REQUEST FOR RELEVANT AND NECESSARY INFORMATION, IN
MY JUDGMENT, THE FACT THAT SUCH INFORMATION MAY HAVE TO BE "SANITIZED"
PRIOR TO ITS BEING MADE AVAILABLE TO THE EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, DOES NOT WARRANT A DENIAL OF THE REQUEST IN TOTO, AND
DOES NOT SHIFT THE BURDEN TO THE EXCLUSIVE REPRESENTATIVE TO MAKE A
SECOND REQUEST CONCERNING WHAT IT IS SEEKING OR IS WILLING TO ACCEPT.
SEE DEPARTMENT OF DEFENSE, STATE OF NEW JERSEY, A/SLMR NO. 539.
IN THE MATTER OF
UNITED STATES DEPARTMENT OF
AGRICULTURE FOREST SERVICE,
PACIFIC SOUTHWEST AND RANGE
EXPERIMENT STATION,
BERKELEY, CALIFORNIA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3217
JAMES E. ANDREWS, ESQ.
OFFICE OF THE GENERAL COUNSEL
U.S. DEPARTMENT OF AGRICULTURE
630 SANSOME STREET, ROOM 860
SAN FRANCISCO, CALIFORNIA 94111
CURTIS TURNER
NATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
3320 GRAND AVENUE, SUITE 2
OAKLAND, CALIFORNIA 94610
BEFORE: SALVATORE J. ARRIGO
THIS PROCEEDING HEARD IN LOS ANGELES, CALIFORNIA ON AUGUST 20, 1974,
ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED (HEREAFTER CALLED THE
ORDER). PURSUANT TO THE REGULATIONS OF THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS (HEREAFTER CALLED THE ASSISTANT
SECRETARY), A NOTICE OF HEARING ON COMPLAINT ISSUED ON JULY 26, 1974,
WITH REFERENCE TO AN ALLEGED VIOLATION OF SECTIONS 19(A)(1) AND (6) OF
THE ORDER. THE AMENDED COMPLAINT FILED BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3217 (HEREAFTER CALLED THE UNION OR
COMPLAINANT) ALLEGED THAT THE UNITED STATES DEPARTMENT OF AGRICULTURE
FOREST SERVICE, PACIFIC SOUTHWEST AND RANGE EXPERIMENT STATION,
BERKELEY, CALIFORNIA, (HEREAFTER CALLED THE ACTIVITY OR RESPONDENT)
VIOLATED THE ORDER BY DENYING THE UNION'S REQUEST FOR ALL PROMOTION
EVALUATION RECORDS USED BY THE ACTIVITY IN ITS SELECTION OF AN EMPLOYEE
TO FILL A VACANT SECRETARIAL POSITION.
AT THE HEARING THE PARTIES WERE REPRESENTED AND WERE AFFORDED FULL
OPPORTUNITY TO ADDUCE EVIDENCE, CALL, EXAMINE AND CROSS-EXAMINE
WITNESSES AND ARGUE ORALLY. BRIEFS WERE FILED BY BOTH PARTIES.
UPON THE ENTIRE RECORD IN THIS MATTER, FROM MY READING OF THE BRIEFS
/1/ AND FROM MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE
THE FOLLOWING:
AT ALL TIMES MATERIAL HEREIN THE UNION HAS BEEN THE EXCLUSIVE
COLLECTIVE BARGAINING REPRESENTATIVE OF VARIOUS PROFESSIONAL AND
NON-PROFESSIONAL EMPLOYEES EMPLOYED BY THE ACTIVITY. THE PARTIES ARE
SIGNATORS TO A TWO YEAR COLLECTIVE BARGAINING AGREEMENT DATED FEBRUARY
6, 1973.
IN AUGUST 1973, MRS. MARJORIE HUSTEAD, AN EMPLOYEE AND MEMBER OF THE
COLLECTIVE BARGAINING UNIT REQUESTED THAT SHE BE CONSIDERED FOR
PROMOTION TO A GS-6 SECRETARIAL POSITION FOR WHICH A VACANCY HAD BEEN
ANNOUNCED BY THE ACTIVITY. IN LATE SEPTEMBER 1973, MRS. HUSTEAD MET
WITH DR. LYNCH, THE INDIVIDUAL FOR WHOM THE PERSON SELECTED FOR THE
SECRETARIAL POSITION WOULD BE WORKING, AND WAS INFORMED THAT SHE WAS ONE
OF THREE CANDIDATES BEING CONSIDERED FOR THE JOB. HOWEVER, SINCE ALL
THREE APPLICANTS WERE RATED EQUAL IN ABILITY AN ADDITIONAL EVALUATION
STATEMENT WAS BEING REQUESTED FROM EACH OF THE CANDIDATES' SUPERVISORS.
ON OCTOBER 15, 1973, DR. LYNCH NOTIFIED MRS. HUSTEAD THAT SHE WAS NOT
SELECTED FOR THE POSITION.
ON THE FOLLOWING DAY, OCTOBER 16, MRS. HUSTEAD TELEPHONED THE UNION'S
PRESIDENT GENE BERNARDI AND EXPRESSED DISSATISFACTION THAT SHE HAD NOT
BEEN PICKED FOR THE JOB. MRS. HUSTEAD COMPLAINED THAT THE PERSON WHO
HAD BEEN SELECTED FOR THE POSITION (IRENE ALTHAUS) HAD ACTUALLY BEEN
"PRESELECTED". HUSTEAD CAME TO THIS CONCLUSION SINCE ALTHAUS HAD
RECEIVED "SENSITIVITY TRAINING" PRIOR TO HER SELECTION. HUSTEAD ALSO
CONVEYED TO BERNARDI HER FEELING THAT ALTHAUS HAD BEEN SELECTED OVER HER
BECAUSE ALTHAUS WAS APPROXIMATELY TWENTY YEARS HER JUNIOR, AN IRRELEVANT
CONSIDERATION. MOREOVER, HUSTEAD WAS OF THE OPINION THAT SHE WAS
ACTUALLY BETTER QUALIFIED THAN EITHER OF THE TWO CANDIDATES ESPECIALLY
WHEN HER AGENCY EXPERIENCE WAS COMPARED WITH THE OTHER CANDIDATES'
AGENCY EXPERIENCE. BERNARDI TOLD HUSTEAD SHE WOULD LOOK INTO THE
MATTER. /2/
HAVING CONCLUDED THAT THE CANDIDATES FOR THE VACANCY MUST NOT HAVE
BEEN PROPERLY RANKED, ON OCTOBER 16, 1973, BERNARDI, AS UNION PRESIDENT,
WROTE THE ACTIVITY THE FOLLOWING LETTER:
"IN ACCORD WITH THE DECISION OF LABOR DEPARTMENT ADMINISTRATIVE LAW
JUDGE IN CASE
NO. 32-2833(CA) (JULY 13, 1973) AFGE LOCAL 3217 REQUESTS THAT IT BE
PROVIDED FOR EXAMINATION
ALL PROMOTION EVALUATION RECORDS IN CONNECTION WITH THE FILING OF THE
SECRETARY (STENOGRAPHY)
GS-318-06 POSITION AT THE FIRE LAB IN RIVERSIDE.
"THE LOCAL REQUESTS THAT ALL RECORDS IN THE EVALUATION OF CANDIDATES
FOR THE ABOVE SAME
POSITION BE SUBMITTED FOR EXAMINATION. THIS INCLUDES THE POINT
SCORES OR ANY OTHER TYPES OF
RATINGS OR EVALUATION STATEMENTS FOR EACH CANDIDATE MADE BY THE
EVALUATION PANEL OR ANY OTHER
PERSONS INVOLVED IN THE EVALUATION OF THE CANDIDATES. PLEASE ALSO
SUBMIT FOR THE LOCAL'S
EXAMINATION THE SUPERVISORY APPRAISALS FOR ALL OF THE CANDIDATES, AND
RANKINGS OF THE
CANDIDATES MADE AT ANY AND ALL STAGES OF THE SELECTION PROCEDURES."
BY MEMO DATED OCTOBER 24, 1973, THE ACTIVITY RESPONDED TO THE UNION'S
REQUEST AS FOLLOWS:
"BASED ON OUR UNDERSTANDING OF THE FOREST SERVICE REGULATIONS AND THE
LABOR-MANAGEMENT
AGREEMENT BETWEEN LOCAL 3217 AND PSW STATION, WE HAVE NO BASIS ON
WHICH TO GRANT YOUR REQUEST.
"THE FOREST SERVICE MERIT PROMOTION PLAN, AND SECTION 8, ARTICLE 8,
OF OUR LABOR-MANAGEMENT
AGREEMENT ARE SPECIFIC AS TO WHAT INFORMATION CONCERNING A SPECIFIC
PROMOTION ACTION AN
EMPLOYEE OR HIS OR HER DESIGNATED REPRESENTATIVE ARE ENTITLED TO
RECEIVE. THE FOREST SERVICE
MERIT PROMOTION PLAN IS ALSO CLEAR IN ESTABLISHING THAT AN EMPLOYEE
IS NOT ENTITLED TO SEE AN
APPRAISAL OF ANOTHER EMPLOYEE.
"AS A MATTER OF INFORMATION, THE CASE YOU CITE HAS NOT BEEN RULED ON
BY THE ASSISTANT
SECRETARY FOR LABOR-MANAGEMENT RELATIONS. AS YOU NO DOUBT KNOW, THE
FINDINGS AND
RECOMMENDATIONS MADE BY A LABOR DEPARTMENT ADMINISTRATIVE LAW JUDGE
MUST BE REVIEWED BY THE
AS/LMR. AS OF THIS DATE NO DECISION HAS BEEN MADE AND THEREFORE, THE
CASE IS NOT BINDING.
"WE NOTE THAT YOUR LETTER DOES NOT GIVE ANY INDICATION THAT YOU
BELIEVE AN ERROR WAS MADE
IN MAKING THIS SELECTION."
BY LETTER DATED OCTOBER 28, 1973, THE UNION TOOK ISSUE WITH THE
ACTIVITY'S REFUSAL AND CHARGED THE ACTIVITY WITH HAVING VIOLATED THE
ORDER. THE UNION ALLEGED THAT THE REFUSAL " . . . CONSTITUTED A DENIAL
OF INFORMATION TO THE LOCAL NECESSARY TO INTELLIGENTLY ACT ON BEHALF OF
AN EMPLOYEE IT IS ENTITLED TO REPRESENT", IN VIOLATION OF SECTION 10(E)
OF THE ORDER.
THE ACTIVITY RESPONDED TO THE UNION ON NOVEMBER 16, 1973, CONTENDING
INTER ALIA, THAT EVALUATION RECORDS AND APPRAISALS WERE CONFIDENTIAL "TO
ENSURE EMPLOYEE PRIVACY" AND POINTING OUT TO THE UNION THAT THE JULY 13,
1973, DECISION OF THE ADMINISTRATIVE LAW JUDGE IN CASE NO. 32-2833(CA)
/3/ INVOLVED "A GRIEVANCE OF THE RATING PROCEDURE FILED BY AN EMPLOYEE
NOT SELECTED DURING A PROMOTION ACTION." THE ACTIVITY ALSO CONTENDED AND
THE UNION SUBSEQUENTLY DENIED THAT THE CHARGE OF AN UNFAIR LABOR
PRACTICE "LACKS SPECIFICITY." THEREAFTER, ON JANUARY 10, 1974, THE UNION
FILED THE COMPLAINT HEREIN. THE ONLY ORAL COMMUNICATION BETWEEN THE
PARTIES ON THIS MATTER OCCURRED WHEN ON SOME UNDISCLOSED DATE PRIOR TO
APRIL 8, 1974, MANAGEMENT PROPOSED A MEETING WITH THE UNION SUGGESTING
THERE COULD BE AN INFORMAL RESOLUTION OF THE MATTER. AT THAT TIME
BERNARDI ASKED IF AT SUCH A MEETING THE ACTIVITY WOULD PRODUCE "THE
PROMOTION EVALUATION RECORDS". WHEN SHE WAS TOLD "NO", BERNARDI,
WITHOUT FLATLY REFUSING TO MEET, STATED SHE THOUGHT IT WOULD BE A WASTE
OF TIME TO MEET UNDER THOSE CIRCUMSTANCES AND NO MEETING OCCURRED.
THE UNION CONTENDS THAT THE ACTIVITY'S CONDUCT HEREIN DEPRIVED IT OF
INFORMATION NECESSARY TO INTELLIGENTLY CARRY OUT ITS LEGITIMATE FUNCTION
AS THE EMPLOYEES' COLLECTIVE BARGAINING REPRESENTATIVE. BY LETTER TO
THE ACTIVITY DATED MARCH 7, 1974, THE UNION SUMMARIZED ITS POSITION TO
THAT DATE AND STATED, INTER ALIA:
"YOUR OCTOBER 24, 1973 MEMO NOTES THAT OUR OCTOBER 16, 1973 LETTER
DOES NOT INDICATE WE
BELIEVE AN ERROR WAS MADE IN SELECTION. OBVIOUSLY, THE LOCAL
BELIEVES AN ERROR WAS MADE IN
SELECTION OR IT WOULD NOT BE ASKING FOR THE PROMOTION EVALUATION
RECORDS. HOWEVER, THE LOCAL
DID NOT FILE A GRIEVANCE OVER THIS MATTER BECAUSE: (1) IT WAS DENIED
THE INFORMATION IT NEEDS
IN ORDER TO DETERMINE WHETHER THE BELIEF IS CORRECT, (2) IF CORRECT,
DENIED THE DOCUMENTATION
NEEDED TO SUPPORT THE CASE FOR THE EMPLOYEES IT REPRESENTS, AND (3)
BECAUSE E.O. 11491 (AS
AMENDED) CLEARLY FORBIDS AN ISSUE RAISED UNDER THAT ORDER'S COMPLAINT
PROCEDURE IN SECTION 19
FROM ALSO BEING RAISED UNDER A GRIEVANCE PROCEDURE."
ESSENTIALLY THE ACTIVITY FINDS SUPPORT FOR ITS REFUSAL TO GIVE THE
UNION THE REQUESTED INFORMATION IN THE FEDERAL PERSONNEL MANUAL (FPM),
THE TERMS OF WHICH ARE INCORPORATED IN ITS COLLECTIVE BARGAINING
AGREEMENT, /4/ AND THE U.S. DEPARTMENT OF AGRICULTURE FOREST SERVICE
MERIT PROMOTION PLAN. RESPONDENT, ALSO CONTENDS THAT COMPLAINANT FAILED
TO SHOW ANY COMPELLING NEED OR GIVE ANY COMPELLING REASONS FOR THE
RECORDS IT HAS REQUESTED. MOREOVER, RESPONDENT ASSERTS THAT THE TERMS
OF THE PARTIES' CURRENT COLLECTIVE BARGAINING AGREEMENT SUPPORTS ITS
REFUSAL.
THE DEFENSE THAT THE FPM PROHIBITS THE DISCLOSURE OF EVALUATION
RECORDS SIMILAR TO THOSE SOUGHT HEREIN HAS BEEN TREATED IN DEPARTMENT OF
DEFENSE, STATE OF NEW JERSEY, A/SLMR NO. 323, FLRC NO. 73A-59, REPORTED
IN THE FEDERAL LABOR RELATIONS COUNCIL REPORT OF CASE DECISIONS NO. 71,
JUNE 11, 1975. IN THAT CASE THE ASSISTANT SECRETARY HELD " . . . UNDER
SECTION 10(E) OF THE ORDER, A LABOR ORGANIZATION IS GIVEN THE
RESPONSIBILITY FOR REPRESENTING THE INTERESTS OF ALL EMPLOYEES IN THE
UNIT. CLEARLY, IT CANNOT MEET THIS RESPONSIBILITY IF IT IS PREVENTED
FROM OBTAINING RELEVANT AND NECESSARY INFORMATION IN CONNECTION WITH THE
PROCESSING OF GRIEVANCES." HOWEVER, SINCE THE RESPONDENT THEREIN RAISED
THE FPM AS A DEFENSE TO THE PRODUCTION OF THE DOCUMENTS IN QUESTION THE
ASSISTANT SECRETARY CONCLUDED THAT A MAJOR POLICY ISSUE WAS RAISED AND
REFERRED THE ISSUE TO THE FEDERAL LABOR RELATIONS COUNCIL (THE COUNCIL
OR FLRC) FOR DECISION.
THEREAFTER, THE FLRC SOUGHT AN INTERPRETATION FROM THE CIVIL SERVICE
COMMISSION. BASED UPON THE INTERPRETATION IT RECEIVED FROM THE
COMMISSION THE FLRC FOUND THAT COMMISSION INSTRUCTIONS AS SET FORTH IN
THE FPM DID NOT SPECIFICALLY PROHIBIT NOR AUTHORIZE ACCESS ON THE PART
OF A GRIEVANT OR HIS REPRESENTATIVE TO THE MATERIALS AT ISSUE. THE
COUNCIL IN ITS TREATMENT OF THE CASE STATED, INTER ALIA; /5/
"THE COMMISSION'S PRIMARY INTEREST, AS CAN BE SEEN IN THE FPM'S
PROHIBITION ON CASUAL
ACCESS AND IN THE DISTINCTION BETWEEN AN EMPLOYEE'S ACCESS TO HIS OWN
RECORDS AND TO THOSE OF
OTHERS, IS TO SAFEGUARD THE PRIVACY OF FEDERAL EMPLOYEES. IT HAS
NEVER BEEN THE COMMISSION'S
INTENTION THAT INFORMATION NECESSARY TO THE PROCESSING OF AN EMPLOYEE
GRIEVANCE BE WITHHELD
ABSOLUTELY FROM THE GRIEVANT OR HIS REPRESENTATIVE. THE AGENCIES'
RESPONSIBILITY TO PROTECT
EMPLOYEES FROM INVASION OF PRIVACY BY LIMITING ACCESS TO THEIR
PERSONNEL RECORDS IS A VERY
SERIOUS ONE. IN THE GREAT MAJORITY OF CASES, HOWEVER, WE BELIEVE
THIS RESPONSIBILITY IS FULLY
COMPATIBLE WITH DISCLOSURE OF SUFFICIENT INFORMATION TO THE GRIEVANT
OR HIS REPRESENTATIVE TO
ENABLE HIM TO DECIDE WHETHER TO PROCEED WITH HIS GRIEVANCE AND TO
DEVELOP HIS CASE. THE
METHODS OF "SANITIZING" RECORDS, SUCH AS BLOCKING OUT IDENTIFYING
MARKS, AND ABSTRACTING OR
SUMMARIZING THE CONTENTS OF DOCUMENTS, DISCUSSED IN CONNECTION WITH
THE PREPARATION OF AN
OFFICIAL GRIEVANCE FILE IN OUR AUGUST 29 LETTER, ARE EQUALLY RELEVANT
TO THE CASE AT HAND.
"IN SUMMARY, SINCE WE FIND NO SPECIFIC PROHIBITION IN LAW OR
COMMISSION INSTRUCTIONS
CONCERNING ACCESS TO THE MATERIALS IN QUESTION ON THE PART OF THE
GRIEVANT OR HIS
REPRESENTATIVE, AND IN VIEW OF THE AVAILABILITY OF METHODS FOR
PROTECTING THE PRIVACY OF
EMPLOYEES WHILE DIVULGING RELEVANT INFORMATION FROM THEIR RECORDS, WE
BELIEVE THE AGENCY CAN
MAKE AVAILABLE THE REQUESTED MATERIALS (INCLUDING "SANITIZED"
PERFORMANCE APPRAISALS) TO THE
GRIEVANT OR HIS REPRESENTATIVE WITHOUT ANY VIOLATION OF LAW, RULE, OR
COMMISSION DIRECTIVE."
THUS THE COUNCIL HELD THAT APPLICABLE LAWS AND REGULATIONS, INCLUDING
THE FPM, DO NOR SPECIFICALLY PRECLUDE DISCLOSURE TO THE GRIEVANT OR HIS
REPRESENTATIVE, " . . . IN THE CONTEXT OF A GRIEVANCE PROCEEDING CERTAIN
RELEVANT AND NECESSARY INFORMATION USED BY THE EVALUATION PANEL IN
ASSESSING THE QUALIFICATIONS OF THE . . . CANDIDATES FOR APPOINTMENT."
THE COUNCIL CONCLUDED THAT DISCLOSURE TO THE GRIEVANT OF SUCH "RELEVANT"
MATERIALS, AFTER "SANITIZING", EFFECTUATES THE PURPOSES OF THE ORDER IN
THAT " . . . DISCLOSURE OF THE MATERIALS MAY ENABLE THE GRIEVANT TO
DECIDE WHETHER OR NOT TO PROCEED WITH HIS GRIEVANCE, WHILE THE REQUISITE
ANONYMITY PROTECTS THE PRIVACY OF THE FEDERAL EMPLOYEES AS REQUIRED BY
LAW AND REGULATIONS."
ACCORDINGLY, IN VIEW OF THE ABOVE, I FIND THAT INFORMATION OF THE
GENERAL NATURE SOUGHT BY COMPLAINANT HEREIN WAS NOT PRECLUDED FROM
DISCLOSURE TO THE UNION BY THE FEDERAL PERSONNEL MANUAL AS CONTENDED BY
RESPONDENT. THE SAME IS TRUE OF RESPONDENT'S RELIANCE UPON PROVISIONS
IN ITS MERIT PROMOTION PLAN /6/ IN THAT THE MERIT PROMOTION PLAN IS
NOTHING MORE THAN AN EMBODIMENT OF THE APPLICABLE PROVISIONS OF FPM
CHAPTER 335, SUBCHAPTER 5-2.
IN MY OPINION THE FACT THAT NO GRIEVANCE WAS EVER FILED HEREIN IS NOT
DETERMINATIVE OF THE DISPOSITION OF THIS CASE. THUS THE COUNCIL IN
DISCUSSING THE DEPARTMENT OF DEFENSE, STATE OF NEW JERSEY CASE, SUPRA,
RECOGNIZED THE NECESSITY FOR THE " . . . DISCLOSURE OF SUFFICIENT
INFORMATION TO THE GRIEVANT OR HIS REPRESENTATIVE TO ENABLE HIM TO
DECIDE TO PROCEED WITH HIS GRIEVANCE AND DEVELOP HIS CASE," THE VERY
REASON WHY THE UNION HEREIN SOUGHT THE EVALUATION INFORMATION. /7/ I
CONSTRUE THE COUNCIL'S LANGUAGE TO EMBRACE AN INCIPIENT GRIEVANCE AND
NOT MERELY ONE WHERE AN ACTUAL "FILING" UNDER A FORMAL GRIEVANCE
PROCEDURE HAS OCCURRED. INDEED, IN DEPARTMENT OF HEALTH, EDUCATION AND
WELFARE, SOCIAL SECURITY ADMINISTRATION, KANSAS CITY PAYMENT CENTER,
BUREAU OF RETIREMENT AND SURVIVORS INSURANCE, A/SLMR NO. 411, IT WAS
HELD THAT THE REFUSAL OF AN ACTIVITY TO MAKE AVAILABLE RELEVANT AND
NECESSARY INFORMATION IN CONNECTION WITH DETERMINING WHETHER OR NOT TO
INITIATE GRIEVANCES /8/ CONSTITUTES A VIOLATION OF SECTION 19(A)(1) AND
(6) OF THE ORDER. FURTHER, THE UNION RESPONSIBILITIES UNDER SECTION
10(E) OF THE ORDER TO REPRESENT THE INTEREST OF ALL EMPLOYEES IN THE
UNIT, IN MY VIEW, MARKS THE UNION AS A PARTY AS WHO HAS MORE THAN MERELY
A "CASUAL" INTEREST IN UNIT PROMOTIONS AND THE CRITERIA USED AND CARRIES
WITH IT THE RIGHT TO POLICE SUCH PROMOTIONAL ACTIONS BY THE ACTIVITY
ESPECIALLY WHERE, AS HERE, A COMPLAINT FROM A UNIT EMPLOYEE ABOUT THE
ACTION IS RECEIVED BY THE UNION. MOREOVER, IT IS NOTED THAT IN ITS
LETTER TO THE ACTIVITY DATED OCTOBER 28, 1973, THE UNION INFORMED THE
ACTIVITY THAT THE UNION NEEDED THE INFORMATION " . . . TO INTELLIGENTLY
ACT ON BEHALF OF AN EMPLOYEE IT IS ENTITLED TO REPRESENT."
I ALSO FIND AND CONCLUDE THAT THE PARTIES' COLLECTIVE BARGAINING
AGREEMENT DOES NOT SUPPORT RESPONDENT'S REFUSAL TO PROVIDE EVALUATION
INFORMATION. RESPONDENT RELIES ON THE LANGUAGE OF ARTICLE 8, SECTION 8
OF THE AGREEMENT WHICH PROVIDES:
"SECTION 8. AN EMPLOYEE OR HIS OR HER DESIGNATED REPRESENTATIVE MAY
INQUIRE THROUGH HIS
IMMEDIATE SUPERVISOR THE FOLLOWING:
1) WHETHER THE APPLICANT WAS CONSIDERED, WHETHER HE OR SHE WAS
ELIGIBLE, AND WHETHER HE OR
SHE WAS IN THE GROUP FROM WHICH SELECTION WAS MADE.
2) WHO WAS SELECTED FOR THE POSITION.
3) HOW THE EMPLOYEE MAY BETTER PREPARE HIMSELF TO QUALIFY FOR SIMILAR
POSITIONS."
THIS SECTION OF THE AGREEMENT CLOSELY TRACTS THE LANGUAGE OF
SUBCHAPTER 5 OF FPM CHAPTER 335, SECTION 5-2 WHICH THE COUNCIL IN THE
DEPARTMENT OF DEFENSE, STATE OF NEW JERSEY CASE, SUPRA, SPECIFICALLY
CONSIDERED AND REJECTED AS PROHIBITING ACCESS TO PROMOTION EVALUATION
MATERIALS.
HOWEVER, THE COUNCIL IN ITS DECISION IN THE DEPARTMENT OF DEFENSE,
STATE OF NEW JERSEY CASE HELD THAT EVALUATION INFORMATION AS REQUESTED
IN THE CASE HEREIN CAN BE MADE AVAILABLE WITHOUT VIOLATION OF LAWS,
RULES OR COMMISSION DIRECTIVES "PROVIDED THE MANNER IN WHICH THE
INFORMATION IS MADE AVAILABLE PROTECTS THE PRIVACY OF THE EMPLOYEES
INVOLVED BY MAINTAINING THE CONFIDENTIALITY OF THE RECORD. . . . "
ACCORDINGLY, THERE IS NO ABSOLUTE RIGHT TO THE DOCUMENTS SOUGHT BY THE
UNION. RATHER, AS I CONSTRUE THE COUNCIL'S DECISION THE UNION HAS THE
RIGHT TO RECEIVE AND THE ACTIVITY THE OBLIGATION TO PRODUCE, ONLY
EVALUATION RECORDS WHICH HAVE BEEN PROPERLY "SANITIZED" /9/ TO PROVIDE
THE REQUISITE ANONYMITY OF THE FEDERAL EMPLOYEES INVOLVED. BUT THE
UNION'S REQUEST FOR EVALUATION INFORMATION HEREIN WAS SUBSTANTIALLY
BROADER THAN THAT WHICH THE COUNCIL HELD AN ACTIVITY WOULD BE REQUIRED
TO PRODUCE. WHILE THE RESPONDENT NEVER INDICATED A WILLINGNESS TO
PROVIDE WHEN A "SANITIZED" VERSION OF THE EVALUATION MATERIALS, NEITHER
DID THE UNION MAKE SUCH A REQUEST OR INDICATE SUCH WOULD BE ACCEPTABLE.
I FIND THAT IT WAS THE OBLIGATION OF THE UNION AFTER THE DOCUMENTS WERE
DENIED ON THE BASIS OF CONFIDENTIALITY OR PRIVACY TO SPECIFICALLY
REQUEST WHAT IT WAS THEY WERE SEEKING OR WILLING TO ACCEPT. HAVING DONE
SO THE ACTIVITY COULD BE EXPECTED TO EVALUATE THAT REQUEST AND DECIDE
WHETHER IT WAS OBLIGATED TO REJECT OR COMPLY WITH IT UNDER THE ORDER AND
EXISTING REGULATIONS.
MOREOVER, IT IS APPARENT THAT THE UNION WAS NOT INCLINED TO MODIFY
ITS DEMAND FOR "ALL RECORDS" INVOLVED IN THE CANDIDATES' EVALUATION AND
ULTIMATE SELECTION FOR THE VACANCY. INDEED THE UNION FORECLOSED ANY
DISCUSSION ON THE MATTER WHEN IT REJECTED AN OFFER TO MEET WITH THE
ACTIVITY TO EXPLORE THE POSSIBILITY OF INFORMALLY ADJUSTING THE DISPUTE.
IT PREFERRED INSTEAD TO STAND ON ITS DEMAND FOR "ALL RECORDS" AND WHEN
IT WAS INFORMED THAT THE ACTIVITY WOULD NOT ACCEDE TO THIS DEMAND IT
PRECLUDED DISCUSSION WHICH MIGHT HAVE PRODUCED EITHER AN OFFER OF
SOMETHING LESS THAN WHAT WAS REQUESTED OR PERHAPS AN INDICATION THAT THE
ACTIVITY WOULD NOT GIVE THE REQUESTED MATERIAL IN ANY FORM OR DEGREE
WHATSOEVER.
IN ALL CIRCUMSTANCES HEREIN I FIND AND CONCLUDE THAT INASMUCH AS THE
UNION'S REQUEST FOR "ALL RECORDS" WITHOUT LIMITATION OR FURTHER
DELINEATION WAS SUBSTANTIALLY BROADER THAN THAT WHICH THE ACTIVITY WAS
OBLIGATED TO PRODUCE AND THE UNION DEMONSTRATED A DISINCLINATION TO
MODIFY ITS DEMAND, THE ACTIVITY WAS PRIVILEGED TO REFUSE THE REQUEST
WITHOUT VIOLATING THE ORDER. /10/
I RECOMMEND THAT THE COMPLAINT HEREIN BE DISMISSED.
DATED: AUGUST 14, 1975
WASHINGTON, D.C.
/1/ AT THE HEARING I SET SEPTEMBER 24, 1974, AS THE DATE BY WHICH
BRIEFS WERE TO BE RECEIVED BY ME. ALTHOUGH TIMELY BRIEFS WERE RECEIVED
FROM BOTH PARTIES, ON SEPTEMBER 27, 1974, I RECEIVED A BRIEF
SUPPLEMENTAL TO COMPLAINANT'S BRIEF FROM GENE BERNARDI WHO FILED THE
COMPLAINT ON BEHALF OF THE UNION AT A TIME WHEN SHE WAS ITS PRESIDENT.
COMPLAINANT'S ORIGINAL BRIEF WAS FILED BY CURTIS TURNER WHO REPRESENTED
THE UNION AT THE HEARING. A REQUEST FOR AN EXTENSION OF TIME FOR FILING
THE SUPPLEMENTAL BRIEF WAS NEVER SUBMITTED NOR WAS SUCH PERMISSION
GRANTED. FURTHER, THE SUPPLEMENTAL BRIEF, IN PART, REFERRED TO MATTERS
AND HAD ATTACHED TO IT DOCUMENTS NOT OFFERED INTO EVIDENCE AT THE
HEARING. ACCORDINGLY, THE SUPPLEMENTAL BRIEF IS REJECTED AND WAS NOT
CONSIDERED IN REACHING THE DECISION HEREIN.
/2/ HUSTEAD DID NOT AT THIS TIME OR AT ANY OTHER TIME INDICATE THAT
SHE WISHED TO FILE A GRIEVANCE ON THE MATTER. INDEED THE EVIDENCE
DISCLOSES THAT SHE WISHED TO AVOID PERSONALLY FILING A GRIEVANCE OVER
THE SELECTION.
/3/ DEPARTMENT OF DEFENSE, STATE OF NEW JERSEY, A/SLMR NO. 323,
ISSUED NOVEMBER 16, 1973.
/4/ ARTICLE 3, SECTION 3 OF THE AGREEMENT PROVIDES:
"SECTION 3. IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THE
AGREEMENT, OFFICIALS AND
EMPLOYEES ARE GOVERNED BY EXISTING OR FUTURE LAWS AND THE REGULATIONS
OF APPROPRIATE
AUTHORITIES, INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL
MANUAL; BY PUBLISHED AGENCY
POLICIES AND REGULATIONS IN EXISTENCE AT THE TIME THE AGREEMENT WAS
APPROVED; AND BY
SUBSTANTIALLY PUBLISHED AGENCY POLICIES AND REGULATIONS REQUIRED BY
LAW OR BY THE REGULATIONS
OF APPROPRIATE AUTHORITIES, OR AUTHORIZED BY THE TERMS OF A
CONTROLLING AGREEMENT AT A HIGHER
AGENCY LEVEL."
/5/ THE COUNCIL IN ITS REPLY TO THE ASSISTANT SECRETARY NOTED THE
COMMISSION'S REFERENCE TO ANOTHER CASE WHEREIN IT GAVE ADVICE ON A
SIMILAR ISSUE. (NATIONAL LABOR RELATIONS BOARD, REGION 17, AND NATIONAL
LABOR RELATIONS BOARD AND DAVID A. NIXON, FLRC NO. 73A-53 (OCTOBER 31,
1974), REPORT NO. 59).
/6/ THE SECTIONS OF THE MERIT PROMOTION PLAN RELIED ON BY RESPONDENT
PROVIDE:
"C. PROMOTION ROSTER APPRAISALS WILL BE DISCUSSED WITH THE EMPLOYEE
WHO WILL INITIAL THE
6100-10 TO INDICATE THAT THIS HAS BEEN DONE. CHANGES MADE BY
REVIEWERS WILL ALSO BE DISCUSSED
WITH HIM. AN EMPLOYEE DOES NOT HAVE THE RIGHT TO SEE THE RANKING OF
ANOTHER EMPLOYEE OTHER
THAN FOR OFFICIAL PURPOSES.
"D. UPON REQUEST, SUPERVISORS WILL DISCUSS WITH THE EMPLOYEE THE
FOLLOWING INFORMATION
ABOUT SPECIFIC PROMOTION ACTIONS:
(1) WHETHER HE WAS CONSIDERED, WHETHER HE WAS ELIGIBLE, AND WHETHER
HE WAS IN THE GROUP
FROM WHICH SELECTION WAS MADE.
(2) WHO WAS SELECTED FOR THE PROMOTION.
(3) HOW THE EMPLOYEE MAY BETTER PREPARE HIMSELF TO QUALIFY FOR
SIMILAR POSITIONS."
/7/ I FIND THE RELEVANCY AND NECESSITY OF SUCH INFORMATION TO THE
UNION TO BE INHERENT IN THE UNION'S STATUS AS THE EXCLUSIVE COLLECTIVE
BARGAINING REPRESENTATIVE. ACCORDINGLY THE UNION WAS UNDER NO
OBLIGATION TO TELL THE ACTIVITY ITS PARTICULAR NEED FOR SUCH INFORMATION
IN ORDER TO GIVE RISE TO THE ACTIVITY'S OBLIGATION TO PRODUCE THE DATA.
/8/ THE COLLECTIVE BARGAINING AGREEMENT HEREIN ACCORDS THE UNION THE
RIGHT TO FILE A GRIEVANCE. ARTICLE 20 OF THE AGREEMENT PROVIDES IN
RELEVANT PART: "A GRIEVANCE IS DEFINED AS A COMPLAINT OF
DISSATISFACTION AND REQUEST FOR PERSONAL RELIEF OR THE ADJUSTMENT OF A
DECISION SUBJECT TO THE CONTROL OF AGENCY MANAGEMENT OR THE LOCAL
RELATING TO AN INTERPRETATION OR APPLICATION OF A NEGOTIATED AGREEMENT
WHETHER FILED BY AN EMPLOYEE, OR GROUP OF EMPLOYEES, OR THE PARTIES TO
THIS AGREEMENT."
/9/ E.G., CONCEALING IDENTIFYING INFORMATION OR IF NOT POSSIBLE,
PROVIDING EXTRACTS, ETS. (SEE NATIONAL LABOR RELATIONS BOARD, SUPRA)
/10/ THIS IS NOT TO SAY HOWEVER THAT IN ALL SITUATIONS A REQUEST FOR
INFORMATION CAN BE REFUSED UNDER THE ORDER MERELY BECAUSE THE
INFORMATION IS NOT AVAILABLE OR PRODUCEABLE IN THE PRECISE FORM IN WHICH
THE REQUEST WAS MADE. SEE NLRB V. WESTERN WIREBOUND BOX CO., 356 F.2D
88.
5 A/SLMR 572; P. 655; CASE NO. 64-2667(AC); OCTOBER 31, 1975.
U.S. DEPARTMENT OF NAVY,
SUPERVISOR OF SHIPBUILDING,
CONVERSION AND REPAIR,
8TH NAVAL DISTRICT,
NEW ORLEANS, LOUISIANA
A/SLMR NO. 572
THIS CASE INVOLVED A PETITION FOR AMENDMENT OF CERTIFICATION (AC)
FILED BY LOCAL 3513, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO (AFGE LOCAL 3513) SEEKING TO AMEND THE DESIGNATION OF THE LABOR
ORGANIZATION (AFGE LOCAL 3203) NAMED IN THE CERTIFICATION OF
REPRESENTATIVE ISSUED IN APRIL 1971. THE ACTIVITY TOOK THE POSITION
THAT THE PETITION SHOULD BE DISMISSED BECAUSE THE CERTIFIED LABOR
ORGANIZATION, AFGE LOCAL 3203, WAS "DEFUNCT" AND, FURTHER, THAT THE
PETITION FAILED TO MEET STANDARDS ESTABLISHED BY THE ASSISTANT SECRETARY
FOR A CHANGE IN AFFILIATION. AFGE LOCAL 3203 DID NOT INTERVENE IN THE
PROCEEDING OR APPEAR AT THE HEARING.
THE ASSISTANT SECRETARY CONCLUDED THAT THE EVIDENCE DID NOT ESTABLISH
THAT THERE WAS AN EFFECTIVE CHANGE OF AFFILIATION FROM AFGE LOCAL 3203
TO AFGE LOCAL 3513. HE NOTED IN THIS REGARD THAT THE OFFICERS OF AFGE
LOCAL 3203 WERE OPPOSED TO THE "MERGER" BETWEEN THE TWO LOCALS; THAT
THERE HAD BEEN NO MEETING OF THE MEMBERSHIP OF AFGE LOCAL 3203 TO
CONSIDER THE ISSUE OF A CHANGE IN AFFILIATION; AND THAT NO VOTE OF THE
MEMBERS OF AFGE LOCAL 3203 WAS TAKEN ON THE AFFILIATION QUESTION.
ACCORDINGLY, HE ORDERED THAT THE PETITION BE DISMISSED.
U.S. DEPARTMENT OF NAVY,
SUPERVISOR OF SHIPBUILDING,
CONVERSION AND REPAIR,
8TH NAVAL DISTRICT,
NEW ORLEANS, LOUISIANA
AND
LOCAL 3513, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER LOUIS PAUL EAVES.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILED BY THE
ACTIVITY AND THE PETITIONER, LOCAL 3513, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, HEREIN CALLED AFGE LOCAL 3513, THE
ASSISTANT SECRETARY FINDS:
AFGE LOCAL 3513 FILED THE SUBJECT PETITION FOR AMENDMENT OF
CERTIFICATION SEEKING TO AMEND THE DESIGNATION OF AFGE LOCAL 3203, NAMED
IN THE CERTIFICATION OF REPRESENTATIVE ISSUED ON APRIL 30, 1971, TO AFGE
LOCAL 3513. /1/ THE ACTIVITY TOOK THE POSITION THAT THE PETITION SHOULD
BE DISMISSED BECAUSE THE CERTIFIED LABOR ORGANIZATION, AFGE LOCAL 3203,
WAS "DEFUNCT" AND, FURTHER, THAT THE INSTANT PETITION FAILED TO MEET THE
STANDARDS ESTABLISHED BY THE ASSISTANT SECRETARY FOR A CHANGE IN
AFFILIATION.
AS INDICATED ABOVE, THE RECORD INDICATES THAT ON APRIL 20, 1971, AFGE
LOCAL 3203 WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF
ALL EMPLOYEES OF THE ACTIVITY EMPLOYED IN THE QUALITY ASSURANCE
DEPARTMENT (CODE 300), LOCATED AT THE AVONDALE SHIPYARD. ON AUGUST 2,
1971, AFGE LOCAL 3203 AND THE ACTIVITY ENTERED INTO A DUES WITHHOLDING
AGREEMENT. NO ADDITIONAL AGREEMENT WAS EXECUTED BY THE PARTIES;
HOWEVER, THE RECORD REVEALS THAT PROPOSALS FOR AN AGREEMENT WERE
EXCHANGED BETWEEN THE PARTIES IN 1971 AND THE SPRING OF 1972.
THEREAFTER, THE EVIDENCE ESTABLISHES THAT THERE WAS LIMITED CONTACT
BETWEEN THE ACTIVITY AND AFGE LOCAL 3203 ALTHOUGH IT APPEARS THAT DUES
DEDUCTIONS CONTINUED. THERE WAS NO EVIDENCE THAT THE MEMBERSHIP OF AFGE
LOCAL 3203 HELD ANY MEETINGS. NOR WAS THERE ANY EVIDENCE THAT FOLLOWING
AN ELECTION OF OFFICERS IN 1971, ANY FURTHER ELECTIONS WERE CONDUCTED.
/2/
THE RECORD REVEALS THAT THE PRESIDENT OF AFGE LOCAL 3203 WAS
APPROACHED BY THE NATIONAL REPRESENTATIVE OF THE AFGE FOR THE NEW
ORLEANS, LOUISIANA AREA, APPARENTLY SOMETIME IN THE EARLY PART OF 1974,
WITH REGARD TO A MERGER OF AFGE LOCAL 3203 WITH AFGE LOCAL 3513, WHICH
THE RECORD INDICATES IS AN "INTERDEPARTMENTAL" AFGE LOCAL. THE
PRESIDENT OF AFGE LOCAL 3203 INDICATED HIS OPPOSITION TO SUCH A MERGER.
THEREAFTER, ON MAY 31, 1974, A LETTER WAS SENT TO THE ACTIVITY BY THE
AFGE NATIONAL REPRESENTATIVE INDICATING THAT AFGE LOCAL 3203 HAD BEEN
"DISBANDED" AND HAD BEEN "MERGED" WITH AFGE LOCAL 3513. IN THIS
CONNECTION, HE REQUESTED THAT THE ACTIVITY REMIT CHECKS FOR DUES
WITHHOLDING TO THE TREASURER OF AFGE LOCAL 3513. /3/ ON JUNE 7, 1974,
THE ACTIVITY COMMUNICATED WITH THE PRESIDENT OF AFGE LOCAL 3203 TO
ASCERTAIN THAT LOCAL'S DESIRES WITH REGARD TO THE "MERGER," AND WAS
INFORMED THAT WHILE THE PRESIDENT WAS OPPOSED TO A MERGER, HE WISHED TO
DISCUSS THE MATTER WITH TWO OTHER OFFICERS OF THE LOCAL. ON JUNE 17,
1974, THE ACTIVITY WAS INFORMED BY THE PRESIDENT OF AFGE LOCAL 3203 THAT
ALL OFFICIALS OF LOCAL 3203 HAD AGREED TO "DISBAND" THE LOCAL, BUT THAT
THEY DID NOT APPROVE OR CONSENT TO A MERGER WITH AFGE LOCAL 3513.
THEREAFTER, ON JUNE 24, 1974, THE SECRETARY-TREASURER OF AFGE LOCAL 3203
SENT A MEMORANDUM TO THE ACTIVITY IN WHICH HE STATED THAT "LOCAL 3203
HAS BEEN DISBANDED AND NO LONGER EXISTS."
UNDER THE CIRCUMSTANCES OUTLINED ABOVE, I FIND THAT THE EVIDENCE DOES
NOT ESTABLISH THAT THERE WAS AN EFFECTIVE CHANGE OF AFFILIATION FROM
AFGE LOCAL 3203 TO AFGE LOCAL 3513. THUS, THE EVIDENCE ESTABLISHES THAT
OFFICERS OF AFGE LOCAL 3203 WERE OPPOSED TO THE "MERGER" BETWEEN AFGE
LOCAL 3203 AND AFGE LOCAL 3513; THERE WAS NO MEETING OF THE MEMBERSHIP
OF AFGE LOCAL 3203 TO CONSIDER THE ISSUE OF A CHANGE IN AFFILIATION;
AND NO VOTE OF THE MEMBERS OF AFGE LOCAL 3203 WAS TAKEN ON THE
AFFILIATION QUESTION. /4/ ACCORDINGLY, I SHALL ORDER THAT THE PETITION
IN THE INSTANT CASE BE DISMISSED. /5/
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 64-2667(AC) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
OCTOBER 31, 1975
/1/ AFGE LOCAL 3203 DID NOT INTERVENE IN THIS PROCEEDING OR APPEAR AT
THE HEARING.
/2/ THE RECORD INDICATES THAT THE UNIT CONTAINED BETWEEN 80 AND 94
EMPLOYEES IN EARLY 1971, BUT INCLUDED ONLY SOME 8 EMPLOYEES IN JULY
1975.
/3/ THE ACTIVITY REMITTED SUCH DUES WITHHOLDING UNTIL SOMETIME IN
OCTOBER 1974, AT WHICH TIME THE PRACTICE WAS TERMINATED.
/4/ SEE VETERANS ADMINISTRATION HOSPITAL, MONTROSE, NEW YORK, A/SLMR
NO. 470.
/5/ IT WAS CONSIDERED UNNECESSARY FOR THE PURPOSE OF THIS DECISION TO
DECIDE WHETHER AFGE LOCAL 3203 WAS, IN FACT, DEFUNCT.
5 A/SLMR 571; P. 651; CASE NO. 31-8872(CA); OCTOBER 31, 1975.
UNITED STATES AIR FORCE ELECTRONICS
SYSTEMS DIVISION (AFSC), HANSCOM
AIR FORCE BASE
A/SLMR NO. 571
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY LOCAL
975, NATIONAL FEDERATION OF FEDERAL EMPLOYEES (NFFE) ALLEGING THAT THE
UNITED STATES AIR FORCE ELECTRONICS SYSTEMS DIVISION (AFSC), HANSCOM AIR
FORCE BASE (RESPONDENT) VIOLATED SECTION 19(A)(6) OF THE ORDER BY VIRTUE
OF ITS ACTION IN DECIDING TO RELOCATE A PARTICULAR FACILITY WITHOUT
PRIOR CONSULTATION WITH THE NFFE REGARDING THE IMPACT OF THE RELOCATION
ON UNIT EMPLOYEES.
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY. IN THIS REGARD, HE FOUND THAT NO FINAL
DECISION HAD BEEN MADE TO REMOVE THE FACILITY, AND THAT SUBSEQUENT
ACTIONS TAKEN THEREON BY THE RESPONDENT WERE CONCERNED SOLELY WITH THE
PLANNING AND FEASIBILITY OF THE RELOCATION. THE DATE FOR THE MOVE, HE
FOUND, WAS MERELY A TARGET DATE FOR COMPLETING THE PLANS FOR A POSSIBLE
RELOCATION AND WAS NOT TO BE THE EFFECTIVE DATE OF THE MOVE OR
RELOCATION. HE CONCLUDED, THEREFORE, THAT AS THE DECISION TO MOVE OR
RELOCATE WAS NOT FINALIZED, THERE WAS NO OBLIGATION IMPOSED UPON THE
RESPONDENT UNDER SECTION 11(B) OF THE ORDER TO MEET AND CONFER WITH
RESPECT TO THE IMPACT OF THE RELOCATION. MOREOVER, HE FOUND THAT, EVEN
IF IT WERE ASSUMED THAT THE DECISION TO MOVE WAS FINAL, THE COMPLAINANT
HAD NOTICE SOME TWELVE DAYS PRIOR TO THE CONTEMPLATED RELOCATION AND IT
HAD MADE NO REQUEST FOR BARGAINING ON EITHER THE PROCEDURES TO BE
UTILIZED OR THE IMPACT ON THE UNIT EMPLOYEES.
THE ASSISTANT SECRETARY, NOTING PARTICULARLY THAT NO EXCEPTIONS WERE
FILED, ADOPT THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE
ADMINISTRATIVE LAW JUDGE AND ORDERED THAT THE COMPLAINT BE DISMISSED.
IN ARRIVING AT HIS DECISION, THE ASSISTANT SECRETARY NOTED THE
BARGAINING RESPONSIBILITY OF AN AGENCY OR ACTIVITY WITH RESPECT TO
MATTERS WITHIN THE AMBIT OF SECTION 11(B) OF THE ORDER.
UNITED STATES AIR FORCE ELECTRONICS
SYSTEMS DIVISION (AFSC), HANSCOM
AIR FORCE BASE
AND
LOCAL 975, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
ON JULY 17, 1975, ADMINISTRATIVE LAW JUDGE BURTON S. STERNBURG ISSUED
HIS REPORT AND RECOMMENDATIONS 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. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION THAT
DISMISSAL OF THE COMPLAINT IS WARRANTED.
IN THIS REGARD, IT WAS NOTED THAT ON PAGE FOUR OF HIS REPORT AND
RECOMMENDATIONS THE ADMINISTRATIVE LAW JUDGE REFERRED TO THE SUBJECT
MATTERS SET FORTH IN SECTION 11(B) OF THE ORDER AS "MANAGEMENT
PREROGATIVES," AND THAT, WITH RESPECT TO SUCH MATTERS, AN AGENCY OR
ACTIVITY IS OBLIGATED TO MEET AND CONFER ON THE IMPACT OF ANY "INITIAL
DECISION OR ACTION ON UNIT PERSONNEL." I AGREE WITH THE ADMINISTRATIVE
LAW JUDGE THAT AGENCIES AND ACTIVITIES ARE OBLIGED TO AFFORD EXCLUSIVE
REPRESENTATIVES A REASONABLE OPPORTUNITY TO MEET AND CONFER CONCERNING
THE IMPACT AND IMPLEMENTATION OF DECISIONS TAKEN WITH RESPECT TO
SUBJECTS WITHIN THE AMBIT OF SECTION 11(B) OF THE ORDER. MOREOVER, IT
WAS NOTED THAT, ALTHOUGH AGENCIES OR ACTIVITIES ARE NOT OBLIGATED TO
NEGOTIATE CONCERNING MATTERS WITHIN THE AMBIT OF SECTION 11(B), IT HAS
BEEN HELD BY THE FEDERAL LABOR RELATIONS COUNCIL THAT THEY MAY NEGOTIATE
ON SUCH SUBJECTS AND REACH BINDING AGREEMENTS THEREON. /1/
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 31-8872(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
OCTOBER 31, 1975
/1/ SEE AFGE COUNCIL OF LOCAL 1497 AND 2165, AND REGION 3, GENERAL
SERVICES ADMINISTRATION, BALTIMORE, MARYLAND, FLRC NO. 74A-48.
IN THE MATTER OF
UNITED STATES AIR FORCE
ELECTRONICS SYSTEMS DIVISION (AFSC)
HANSCOM AIR FORCE BASE
AND
LOCAL 975, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
JOHN C. ABIZAID, ESQUIRE
ESD/JA, L. G. HANSCOM AIR FORCE BASE
BEDFORD, MASSACHUSETTS
GEORGE TILTON, ESQUIRE
ASSOCIATE GENERAL COUNSEL
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H ST., N.W.
WASHINGTON, DC
BEFORE: BURTON S. STERNBURG
PURSUANT TO A COMPLAINT FILED ON NOVEMBER 12, 1974, UNDER EXECUTIVE
ORDER 11491, AS AMENDED, BY LOCAL 975, NATIONAL FEDERATION OF FEDERAL
EMPLOYEES (HEREINAFTER CALLED THE UNION OR COMPLAINANT), AGAINST THE
ELECTRONICS SYSTEM DIVISION, AFSC, UNITED STATES AIR FORCE, HANSCOM AIR
FORCE BASE (HEREINAFTER CALLED THE RESPONDENT OR AGENCY), A NOTICE OF
HEARING ON COMPLAINT WAS ISSUED BY THE ASSISTANT REGIONAL DIRECTOR FOR
THE NEW YORK REGION ON APRIL 9, 1975.
THE COMPLAINT ALLEGES, IN SUBSTANCES, THAT THE RESPONDENT VIOLATED
SECTIONS 19(A)(5) AND (6) OF THE EXECUTIVE ORDER BY VIRTUE OF ITS
ACTIONS IN DETERMINING TO RELOCATE A PARTICULAR FACILITY WITHOUT PRIOR
CONSULTATION WITH THE UNION REGARDING THE IMPACT OF THE RELOCATION ON
UNIT PERSONNEL. /1/
A HEARING WAS HELD IN THE CAPTIONED MATTER ON JUNE 10, 1975, IN
CAMBRIDGE, MASSACHUSETTS. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO
BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE
EVIDENCE BEARING ON THE ISSUES INVOLVED HEREIN.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING CONCLUSIONS AND
RECOMMENDATIONS:
THE UNION IS THE EXCLUSIVE REPRESENTATIVE OF ALL PROFESSIONALS
EMPLOYED IN THE ELECTRONICS SYSTEMS DIVISION, UNITED STATES AIR FORCE,
HANSCOM AIR FORCE BASE, BEDFORD, MASSACHUSETTS. THE ELECTRONIC SYSTEMS
DIVISION WHICH IS COMPOSED OF A NUMBER OF BRANCHES AND/OR SUBDIVISIONS,
INCLUDING THE DEPUTATE OF THE COMMAND AND MANAGEMENT SYSTEMS,
HEREINAFTER CALLED THE MC UNIT. THE MC UNIT'S COMPONENT PARTS OR
BRANCHES ARE LOCATED IN VARIOUS BUILDINGS IN AND AROUND HANSCOM AIR
FORCE BASE. AS OF AUGUST 1, 1974, MACIMS (MILITARY AIRLIFT COMMAND
INTEGRATED MANAGEMENT SYSTEMS), A COMPONENT PART OR SUBDIVISION OF THE
MC UNIT, WAS LOCATED IN THE MITRE COMPLEX SOME FIVE TO SEVEN MILES FROM
HANSCOM AIR FORCE BASE. THE ASSISTANT DEPUTY FOR THE MC UNIT WAS
COLONEL MELVIN B. EMMONS.
ON OR ABOUT AUGUST 1, 1974, CHIEF OF STAFF, COLONEL JAMES, WHO WAS
COLONEL EMMONS' SUPERIOR OFFICER, ADVISED COLONEL EMMONS THAT "DUE TO
MISSION REQUIREMENTS, THERE WAS A NECESSITY TO CONSIDER RELOCATION OF
SOME OF THE ELECTRONICS SYSTEMS DIVISION RESOURCES, OF WHICH ONE WAS
MACIMS . . . " COLONEL JAMES FURTHER INFORMED COLONEL EMMONS "THAT
INITIAL PLANNING EFFORTS SHOULD BE UNDERTAKEN TO COMPLETE AND FINALIZE
AS SOON AS POSSIBLE THE PLANS AND ALL THE ACTIONS NECESSARY IN THE EVENT
THAT A DECISION WAS MADE TO RELOCATE THE MACIMS OFFICE TO" HANSCOM AIR
FORCE BASE. THE TARGET DATE FOR THE RELOCATION WAS SEPTEMBER 1, 1974.
FOLLOWING THE DISCUSSION WITH COLONEL JAMES, COLONEL EMMONS CONTACTED
THE APPROPRIATE AGENCY OFFICIALS AND COMMENCED PLANNING THE CONTEMPLATED
RELOCATION. ON OR ABOUT AUGUST 6, 1974, COLONEL EMMONS HELD A STAFF
MEETING AND INFORMED THEM OF COLONEL JAMES' INSTRUCTIONS AND THE NEED TO
INITIATE PLANNING IMMEDIATELY. ON AUGUST 7, 1974, COLONEL EMMONS
ADDRESSED A MEMORANDUM TO HIS STAFF CONFIRMING THE DISCUSSIONS HELD AT
THE WEEKLY STAFF MEETING THE DAY BEFORE. THE MEMORANDUM STRESSED THE
FACT THAT IT WAS IMPERATIVE THAT PLANS FOR THE MOVE BE INITIATED AND
FINALIZED AS SOON AS POSSIBLE AND GAVE APPROVAL FOR THE SURVEY OF
CERTAIN FACILITIES LOCATED ON THE BASE.
ON AUGUST 7, 1974, MR. TURGIS, ACTING DEPUTY OF MACIMS, INFORMED
CHIEF UNION STEWARD JOHN B. O'GORMAN OF THE DISCUSSIONS HELD AT THE
WEEKLY STAFF MEETING OF AUGUST 6, CONCERNING THE CONTEMPLATED OR
PROPOSED MOVE OF THE MACIMS UNIT TO THE AIR FORCE BASE. MR. O'GORMAN IN
TURN ADVISED MR. WILLIAM SMITH, PRESIDENT OF THE UNION OF THE
CONTEMPLATED MOVE.
ON AUGUST 11, 1974, AFTER HEARING REPORTS OF THE CONTEMPLATED
RELOCATION FROM CHIEF UNION STEWARD O'GORMAN AND OTHER EMPLOYEES, UNION
PRESIDENT SMITH VISITED ACTING DEPUTY TURGIS AND INQUIRED ABOUT THE
RUMORS OR STORIES CONCERNING A POSSIBLE MOVE OF MACIMS. TURGIS
CONFIRMED THE STORY AND UPON REQUEST GAVE MR. SMITH A COPY OF COLONEL
EMMONS AUGUST 7, 1974 MEMORANDUM CONCERNING THE CONTEMPLATED MOVE. BY
LETTER DATED AUGUST 12, 1974, UNION PRESIDENT SMITH REQUESTED THE DEPUTY
DIRECTOR OF MC TO ADVISE AS TO WHETHER THE INFORMATION GIVEN HIM BY MR.
TURGIS WAS CORRECT AND IF SO, WHY "MANAGEMENT HAS FAILED TO OBSERVE THE
PROVISIONS OF THE EXECUTIVE ORDER". BY LETTER DATED AUGUST 19, 1974,
COLONEL EMMONS INFORMED UNION PRESIDENT SMITH THAT "INITIAL PLANS HAVE
BEEN MADE FOR THE RELOCATION OF THE MACIMS PROGRAM OFFICE TO HANSCOM AIR
FORCE BASE". COLONEL EMMONS FURTHER ADVISED THAT THE "INITIAL PLANS
HAVE NOT BEEN FINALIZED TO DATE" AND THAT THE TENTATIVE DATE FOR
RELOCATION WAS SEPTEMBER 1, 1974. SUBSEQUENT TO RECEIVING COLONEL
EMMONS AUGUST 19, 1974 LETTER, UNION PRESIDENT SMITH, OTHER THAN MAKING
SOME INFORMAL MENTION OF THE RELOCATION TO THE RESPONDENT'S RETIRING
LABOR RELATIONS OFFICER WHILE DISCUSSING OTHER SUBJECTS, MADE NO FORMAL
DEMAND TO RESPONDENT FOR BARGAINING AND/OR CONSULTATION CONCERNING THE
IMPACT OF THE CONTEMPLATED RELOCATION UPON UNIT PERSONNEL.
THE RECORD FURTHER REVEALS THAT THE CONTEMPLATED MOVE OR RELOCATION
OF MACIMS WAS ABANDONED SOMETIME IN SEPTEMBER 1974, DUE TO THE FACT THAT
ANOTHER BRANCH OR DIVISION OF THE ELECTRONICS SYSTEM DIVISION WITH
HIGHER PRIORITY WAS SELECTED FOR RELOCATION.
IN OR AROUND JANUARY 1975, THE MACIMS UNIT WAS RELOCATED. HOWEVER,
ACCORDING TO THE CREDITED AND UNCONTROVERTED TESTIMONY OF COLONEL
EMMONS, THE RELOCATION OCCURRED ONLY AFTER ALL PROFESSIONALS HAD EITHER
BEEN TRANSFERRED, REASSIGNED OR VOLUNTARILY LEFT THE MACIMS UNIT. AT
THE TIME OF THE RELOCATION THE ONLY EMPLOYEES IN THE MACIMS UNIT WERE OF
A CLERICAL NATURE.
THE COMPLAINANT CHARGES THAT THE RESPONDENT VIOLATED SECTION 19(A)(6)
OF THE EXECUTIVE ORDER BY VIRTUE OF ITS ACTIONS IN DETERMINING TO
RELOCATE THE MACIMS FACILITY WITHOUT CONSULTING, CONFERRING OR
NEGOTIATING WITH THE EXCLUSIVE REPRESENTATIVE WITH RESPECT TO THE IMPACT
OF THE RELOCATION ON UNIT PERSONNEL.
SECTION 11(A) OF EXECUTIVE ORDER 11491, AS AMENDED, IMPOSES UPON AN
AGENCY THE OBLIGATION TO MEET AT REASONABLE TIMES AND CONFER IN GOOD
FAITH WITH RESPECT TO PERSONNEL POLICIES AND PRACTICES AND MATTERS
AFFECTING WORKING CONDITIONS OF UNIT EMPLOYEES. SECTION 11(B) OF THE
ORDER, HOWEVER, MAKES IT CLEAR THAT "THE OBLIGATION TO MEET AND CONFER
(IMPOSED BY SECTION 11(A)) DOES NOT INCLUDE MATTERS WITH RESPECT TO THE
MISSION OF AN AGENCY; ITS BUDGET; ITS ORGANIZATION; THE NUMBER OF
EMPLOYEES; AND THE NUMBERS, TYPES, AND GRADES OF POSITIONS OR EMPLOYEES
ASSIGNED TO AN ORGANIZATIONAL UNIT, WORK PROJECT OR TOUR OF DUTY' THE
TECHNOLOGY OR PERFORMING ITS WORK; OR ITS INTERNAL SECURITY PRACTICES".
THE ABOVE QUOTED EXCEPTION CONTAINED IN SECTION 11(B) WITH RESPECT TO
THOSE SUBJECTS NORMALLY CATEGORIZED AS "MANAGEMENT PREROGATIVES" IS
APPLICABLE ONLY TO THE INITIAL DECISION OR ACTION OF AN AGENCY. THUS,
AS NOTED IN THE LAST SENTENCE OF SECTION 11(B) AND AS INTERPRETED BY THE
ASSISTANT SECRETARY AND FEDERAL LABOR RELATIONS COUNCIL, THE AGENCY OR
ACTIVITY IS OBLIGATED, HOWEVER, TO CONSULT AND CONFER WITH RESPECT TO
THE IMPACT OF ANY SUCH "INITIAL DECISION" OR ACTION ON UNIT PERSONNEL.
/2/
ON THE BASIS OF THE RECORD BEFORE ME, PARTICULARLY THE CREDITED
TESTIMONY OF COLONEL EMMONS WHO WAS A MOST SINCERE AND COOPERATIVE
WITNESS, I FIND THAT NO FINAL DECISION HAD BEEN MADE TO MOVE OR RELOCATE
THE MACIMS FACILITY TO A NEW LOCATION. ACCORDING TO COLONEL EMMONS, THE
INSTRUCTION FROM COLONEL JAMES AND THE SUBSEQUENT ACTIONS TAKEN THEREON
WERE CONCERNED SOLELY WITH THE PLANNING AND FEASIBILITY OF THE
RELOCATION. WHILE IT IS TRUE THAT A DATE CERTAIN WAS SET FORTH IN BOTH
THE INSTRUCTION AND WRITTEN COMMUNICATIONS ORIGINATING FROM COLONEL
EMMONS, THIS DATE WAS MERELY A TARGET DATE FOR COMPLETING THE PLANS FOR
A POSSIBLE RELOCATION AND WAS NOT TO BE THE EFFECTIVE DATE OF THE MOVE
OR RELOCATION. INASMUCH AS THE DECISION, WHICH I FIND TO FALL WITHIN
THE EXCEPTION CONTAINED IN SECTION 11(B) OF THE ORDER, WAS NOT
FINALIZED, NO OBLIGATION WAS IMPOSED UPON THE RESPONDENT TO CONSULT AND
CONFER WITH RESPECT TO THE IMPACT OF THE RELOCATION. MOREOVER, AND EVEN
ASSUMING THAT THE DECISION TO RELOCATE WAS OF A FINAL NATURE, I FIND
THAT IN THE CIRCUMSTANCES HERE DISCLOSED RESPONDENT DID NOT REFUSE TO
BARGAIN IN VIOLATION OF SECTION 19(A)(6) OF THE ORDER. THUS, THE RECORD
INDICATES THAT AS EARLY AS AUGUST 7, 1974, RESPONDENT CONVEYED
INFORMATION ABOUT A POSSIBLE RELOCATION TO ITS EMPLOYEES, INCLUDING
CHIEF UNION STEWARD O'GORMAN. THEREAFTER, IN RESPONSE TO A LETTER,
COLONEL EMMONS INFORMED UNION PRESIDENT SMITH ON AUGUST 19, 1974, OF THE
PROPOSED MOVE, SOME TWELVE DAYS PRIOR TO THE CONTEMPLATED RELOCATION.
DESPITE THE AFOREMENTIONED NOTICE, NO REQUEST FOR BARGAINING, ON EITHER
THE PROCEDURES TO BE UTILIZED OR THE IMPACT ON UNIT EMPLOYEES WAS EVER
MADE BY RESPONSIBLE UNION OFFICIALS. IN THE ABSENCE OF SUCH A REQUEST,
INSUFFICIENT BASIS EXISTS FOR A 19(A)(6) FINDING. /3/
UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS, I HEREBY
RECOMMEND TO THE ASSISTANT SECRETARY THAT THE COMPLAINT HEREIN AGAINST
RESPONDENT BE DISMISSED IN ITS ENTIRETY.
DATED: JULY 17, 1975
WASHINGTON, D.C.
/1/ DURING THE COURSE OF THE HEARING COMPLAINANT WITHDREW THE
19(A)(5) ALLEGATION.
/2/ IMMIGRATION AND NATURALIZATION SERVICE, FLRC NO. 70-A-10 (APRIL
15, 1971), PLUM ISLAND ANIMAL DISEASE LABORATORY, FLRC NO. 71A-11 (JULY
9, 1971); GRIFFISS AIR FORCE BASE, FLRC NO. 71A-30 (APRIL 19, 1973);
NORTON AIR FORCE BASE, A/SLMR NO. 261 (APRIL 30, 1973); U.S. DEPARTMENT
OF INTERIOR, BUREAU OF INDIAN AFFAIRS, A/SLMR NO. 341 (JANUARY 8, 1974);
NEW MEXICO AIR NATIONAL GUARD, A/SLMR NO. 362 (FEBRUARY 28, 1974);
ARMY AND AIR FORCE EXCHANGE SERVICE, A/SLMR NO. 451 (OCTOBER 31, 1974).
FEDERAL RAILROAD ADMINISTRATION, A/SLMR NO. 418 (JULY 31, 1974).
/3/ U.S. DEPARTMENT OF AIR FORCE, NORTON AIR FORCE BASE, A/SLMR NO.
261 (APRIL 30, 1973) CF. DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL
SHIPYARD, A/SLMR NO. 508 (APRIL 29, 1975)
5 A/SLMR 570; P. 646; CASE NO. 70-4455; OCTOBER 31, 1975.
DEPARTMENT OF THE NAVY,
MARE ISLAND NAVAL SHIPYARD,
VALLEJO, CALIFORNIA
A/SLMR NO. 570
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
FEDERAL EMPLOYEES METAL TRADES COUNCIL OF VALLEJO, AFL-CIO, VALLEJO,
CALIFORNIA, (COMPLAINANT) ALLEGING ESSENTIALLY THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1), (2) AND (4) OF THE ORDER BASED ON A SHOP
SUPERVISOR'S REFUSAL TO SELECT A SUBORDINATE TO WORK OVERTIME WHO: (1)
WAS THE ONLY STEWARD IN HIS CREW; AND (2) HAD FILED A COMPLAINT AGAINST
THE SUPERVISOR. IT WAS ALLEGED ALSO THAT OTHER EMPLOYEES, WHO WERE
PRESENT WHEN THE SHOP SUPERVISOR REFUSED TO ASK THE STEWARD TO WORK
OVERTIME, WERE DISCOURAGED FROM MEMBERSHIP IN A LABOR ORGANIZATION.
FINDING THAT THE ISSUE RAISED IN THE UNFAIR LABOR PRACTICE COMPLAINT
HAD BEEN RAISED PREVIOUSLY IN A NEGOTIATED GRIEVANCE PROCEDURE, THE
ADMINISTRATIVE LAW JUDGE CONCLUDED THAT SECTION 19(D) OF THE ORDER
PRECLUDED THE COMPLAINANT FROM RAISING THE ISSUE HEREIN AND,
ACCORDINGLY, HE RECOMMENDED THAT THE INSTANT COMPLAINT BE DISMISSED IN
ITS ENTIRETY.
NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS AND THAT THERE WAS
INSUFFICIENT EVIDENCE OF DISCRIMINATORY MOTIVATION, THE ASSISTANT
SECRETARY ORDERED THAT THE INSTANT COMPLAINT BE DISMISSED IN ITS
ENTIRETY.
DEPARTMENT OF THE NAVY,
MARE ISLAND NAVAL SHIPYARD,
VALLEJO, CALIFORNIA
AND
FEDERAL EMPLOYEES METAL TRADES
COUNCIL OF VALLEJO, AFL-CIO,
VALLEJO, CALIFORNIA
ON AUGUST 15, 1975, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK ISSUED
HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAD NOT ENGAGED IN THE ALLEGED UNFAIR LABOR
PRACTICES AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS
ENTIRETY. NO EXCEPTIONS WERE FILED TO THE ADMINISTRATIVE LAW JUDGE'S
REPORT AND RECOMMENDATION.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS.
FINDING THAT THE ISSUE RAISED IN THE INSTANT UNFAIR LABOR PRACTICE
COMPLAINT HAD BEEN RAISED PREVIOUSLY UNDER A NEGOTIATED GRIEVANCE
PROCEDURE, THE ADMINISTRATIVE LAW JUDGE DETERMINED THAT SECTION 19(D) OF
THE ORDER PRECLUDED THE COMPLAINANT FROM RAISING THE ISSUE HEREIN AND,
ACCORDINGLY, HE RECOMMENDED THAT THE INSTANT COMPLAINT BE DISMISSED IN
ITS ENTIRETY. IN ADDITION TO THE ABOVE, NOTING THE ADMINISTRATIVE LAW
JUDGE'S CREDIBILITY FINDINGS, I CONCLUDE THAT THE EVIDENCE HEREIN WAS
INSUFFICIENT TO ESTABLISH THAT THE FAILURE TO ASSIGN OVERTIME TO
EMPLOYEE PROVISION ON AUGUST 23, 1974, WAS MOTIVATED BY ANTI-UNION
CONSIDERATIONS OR WAS BASED ON HIS FILING A COMPLAINT OR GIVING
TESTIMONY UNDER THE ORDER. ACCORDINGLY, I SHALL ORDER THAT THE INSTANT
COMPLAINT BE DISMISSED IN ITS ENTIRETY.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 70-4455 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
OCTOBER 31, 1975
PAUL J. FASSER, JR., ASSISTANT SECRETARY
IN THE MATTER OF
DEPARTMENT OF THE NAVY
MARE ISLAND NAVAL SHIPYARD
VALLEJO, CALIFORNIA
AND
FEDERAL EMPLOYEES METAL
TRADES COUNCIL OF VALLEJO, AFL-CIO
VALLEJO, CALIFORNIA
RICHARD C. WELLS
LABOR RELATIONS ADVISOR
DEPARTMENT OF THE NAVY
REGIONAL OFFICE - CIVILIAN MANPOWER MANAGEMENT
760 MARKET STREET
SAN FRANCISCO, CALIFORNIA 94102
JOHN C. ROBINSON
SECRETARY FOR THE FEDERAL EMPLOYEES
METAL TRADER COUNCIL
P. O. BOX 2195
VALLEJO, CALIFORNIA 94592
BEFORE: WILLIAM NAIMARK
PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON JANUARY 23,
1975 BY ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES
ADMINISTRATION OF THE U.S. DEPARTMENT OF LABOR, SAN FRANCISCO REGION, A
HEARING WAS HELD IN THE ABOVE CAPTIONED CASE BEFORE THE UNDERSIGNED ON
MARCH 11, 1975 AT SAN FRANCISCO, CALIFORNIA.
THE PROCEEDING HEREIN WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS
AMENDED, (HEREIN CALLED THE ORDER) BY THE FILING OF A COMPLAINT ON
OCTOBER 18, 1974 BY FEDERAL EMPLOYEES METAL TRADES COUNCIL, METAL TRADES
DEPARTMENT, AFL-CIO (HEREIN CALLED THE COMPLAINANT) AGAINST THE
DEPARTMENT OF THE NAVY, MARE ISLAND NAVAL SHIPYARD (HEREIN CALLED THE
RESPONDENT). THEREAFTER, ON DECEMBER 16, 1974, COMPLAINANT FILED AN
AMENDED COMPLAINT AGAINST RESPONDENT WHICH IS THE BASIS OF THIS
PROCEEDING. IT WAS ALLEGED THEREIN THAT RESPONDENT VIOLATED SECTIONS
19(A)(1)(2) AND (4) OF THE ORDER AS A RESULT OF THE REFUSAL BY SHOP
SUPERVISOR MORSE ON AUGUST 23, 1974 TO SELECT JOHN C. ROBINSON TO WORK
OVERTIME ON AUGUST 24 AND 25, 1974 - AND THAT SUCH DISCRIMINATION WAS
DUE TO (A) ROBINSON'S BEING THE ONLY UNION STEWARD IN MORSE'S CREW, AND
(B) THE FACT THAT ROBINSON FILED A COMPLAINT AGAINST MORSE. IT WAS ALSO
ALLEGED THAT OTHER EMPLOYEES, WHO WERE PRESENT WHEN MORSE REFUSED TO ASK
ROBINSON TO WORK OVERTIME, WERE DISCOURAGED FROM MEMBERSHIP IN A LABOR
ORGANIZATION - ALL IN VIOLATION OF 19(A)(2) AND (4) OF THE ORDER.
RESPONDENT FILED A RESPONSE TO THESE COMPLAINT ALLEGATION WHICH
DENIED THE COMMISSIONS OF ANY UNFAIR LABOR PRACTICES.
BOTH PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. THEREAFTER THE PARTIES FILED BRIEFS WHICH HAVE
BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MADE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS:
1. AT ALL TIMES MATERIAL HEREIN COMPLAINANT WAS THE COLLECTIVE
BARGAINING REPRESENTATIVE OF THE WAGE BOARD EMPLOYEES, INCLUDING CAREER
PERSONNEL, AT MARE ISLAND NAVAL SHIPYARD.
2. BOTH COMPLAINANT AND RESPONDENT ARE AND HAVE BEEN, AT ALL TIMES
HEREIN, PARTIES TO A COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDES, IN
ARTICLE IX, THAT IN ASSIGNING EMPLOYEES TO OVERTIME WORK, THE EMPLOYER
WOULD GIVE THE FIRST CONSIDERATION TO THESE EMPLOYEES CURRENTLY ASSIGNED
TO THE JOB AND SECOND CONSIDERATION TO THOSE HAVING THE SKILLS REQUIRED
BY OVERTIME ASSIGNMENTS. THE SAID ARTICLE FURTHER RECITES THAT,
OTHERWISE, OVERTIME WOULD BE DISTRIBUTED FAIRLY AMONG QUALIFIED
EMPLOYEES.
3. THE AFOREMENTIONED COLLECTIVE BARGAINING AGREEMENT BETWEEN
COMPLAINANT UNION AND RESPONDENT ALSO CONTAINS A GRIEVANCE PROCEDURE FOR
EMPLOYEES (ARTICLE XXXII), WHOSE DECLARED PURPOSE IS TO SETTLE GRIEVANCE
OF INDIVIDUALS ARISING OUT OF THE INTERPRETATION AND APPLICATION OF THE
AGREEMENT, OR INVOLVING POLICIES ESTABLISHED BY THE EMPLOYER, OR A
VIOLATION THEREOF. THE NEGOTIATED GRIEVANCE PROCEDURE PROVIDED FOR
VARIOUS STEPS TO BE TAKEN IN THE PROCESSING OF A GRIEVANCE AND AN APPEAL
TO THE DEPARTMENT HEAD WHEN A DECISION IS UNSATISFACTORY.
4. SINCE ABOUT 1967 RALPH L. MORSE HAS BEEN A SUPERVISOR OF THE
PIPECOVER INSULATORS SECTION IN SHOP 64. IN AND DURING AUGUST 1974
MORSE AND FOUR OTHER INDIVIDUALS SUPERVISED ABOUT 55 EMPLOYEES IN THAT
SECTION. ABOUT 20 EMPLOYEES WERE UNDER MORSE'S SUPERVISION AS MECHANICS
OR LIMITED MECHANICS.
5. JOHN C. ROBINSON HAS BEEN EMPLOYED AS A PIPECOVER INSULATOR WITH
RESPONDENT FOR TWO YEARS. SINCE ABOUT MARCH 1974, HE HAS BEEN WORKING
UNDER MORSE'S SUPERVISION. IN AND DURING 1974 ROBINSON WAS THE UNION
STEWARD /1/ IN MORSE'S CREW REPRESENTING THE PIPECOVER INSULATORS.
6. ON AUGUST 1, 1974 /2/ THE UNION HEREIN, ON BEHALF OF ROBINSON,
FILED AN UNFAIR LABOR PRACTICE CHARGE AGAINST THE SHIPYARD ALLEGING
MORSE INFORMED ROBINSON THAT HE WAS TOLD TO CONTROL ROBINSON'S MOVEMENTS
AS CHIEF STEWARD, AND THAT THE LATTER WAS NOT TO BE PERMITTED TO GO ON
"FISHING EXPEDITION". AS A RESULT OF SUBSEQUENT MEETINGS INVOLVING ALL
THE PARTIES CONCERNED THE MATTER WAS SETTLED INFORMALLY.
7. ON AUGUST 6, THE UNION HEREIN, ON BEHALF OF ROBINSON FILED
ANOTHER SUCH CHARGE AGAINST THE SHIPYARD ALLEGING THAT MORSE REFUSED TO
ALLOW ROBINSON NECESSARY TIME TO TAKE CARE OF UNION ACTIVITIES.
SPECIFICALLY, IT WAS CLAIMED THAT ROBINSON DESIRED TO GO TO THE UNION
OFFICE ON AUGUST 5 TO WORK ON A ARBITRATION CASE, AND MORSE REFUSED TO
GIVE THE STEWARD A PASS TO DO SO. THE RECORD REFLECTS THAT NO
DISPOSITION WAS MADE OF THIS CHARGE.
8. IN THE COURSE OF WORKING ON BOATS THE EMPLOYEES WERE, AT TIMES,
REQUESTED TO WORK OVERTIME. THE POLICY AT THE SHIPYARD, AND AS ADOPTED
BY MORSE, CALLED FOR SELECTING INDIVIDUALS WHO WORKED ON THE JOB OR BOAT
TO WORK THE REQUIRED OVERTIME. FURTHER, THE SUPERVISOR WOULD REQUEST
THE NUMBER HE DESIRED FOR SUCH OVERTIME WORK, AND THEREAFTER MANAGEMENT
DECIDED HOW MANY EMPLOYEES SHOULD BE DESIGNATED THEREFOR.
9. ON AUGUST 23, MORSE, WHO HAD BEEN ALLOTTED FOUR MEN TO WORK
OVERTIME ON AUGUST 24 AND 25, SOUGHT TO OBTAIN THE HELP REQUIRED. BY
ABOUT 4:00 P.M. HE HAD ASKED SIX MEN IN HIS CREW TO WORK OVERTIME AND
ALL HAD REFUSED. THE EMPLOYEES WERE ASKED TO REPAIR NON-NUCLEAR
DEFICIENCIES ON THE BOAT "THOMAS EDISON" ON THE FOLLOWING TWO DAYS,
SATURDAY AND SUNDAY.
10. THE RECORD FURTHER REFLECTS THAT ON AUGUST 23, MORSE DID NOT ASK
CERTAIN OTHER MEMBERS OF HIS CREW TO WORK OVERTIME ON THE 24TH AND 25TH.
THUS, HE DID NOT ASK LUIS MUNOZ, TOM FISAGA, MONT ETON, PEREZ, AND
ALPHONSO MONTIEL BECAUSE NONE OF THESE INDIVIDUALS HAD CLEARANCE TO DO
THIS WORK ON THE "THOMAS EDISON". MORSE AVERS HE DID NOT ASK MYRON
JAMES BECAUSE THE EMPLOYEE WAS IN TRAINING SCHOOL. SINCE REED WAS ON
SICK LEAVE THAT DAY, AND DAVID VAN METER DOES NOT CHOOSE TO WORK
OVERTIME, HE DID NOT ASK EITHER OF THESE MEN TO WORK OVERTIME. ALTHOUGH
MORSE DID NOT SPEAK TO JAMES LANGFORD RE OVERTIME WORK, NO REASON
APPEARS AS TO WHY HE FAILED TO DO SO.
11. RECORD FACTS SHOW THAT IN THE AFTERNOON OF AUGUST 23 MORSE SPOKE
TO CECCHINI, CLETER HUWEILER, AND RICHARD SANDERS, HE ASKED THESE
EMPLOYEES TO WORK OVERTIME OVER THE WEEKEND ON THE "THOMAS EDISON", AND
ALL AGREED TO DO SO. FURTHER, MORSE TOLD SANDERS TO CALL HIS
FATHER-IN-LAW, BILL SHRUM, /3/ AND ASK HIM TO WORK OVERTIME ALSO. THREE
OF THE FOUR EMPLOYEES HAD WORKED ON THE EDISON BOAT PREVIOUSLY.
12. MORSE TESTIFIED THAT BY 4:00 P.M. ON AUGUST 23, HE HAD OBTAINED
THREE MEN TO WORK OVERTIME AS HERETOFORE INDICATED; THAT HE WAS IN NEED
OF A FOURTH AND PROCEEDED TO APPROACH EMPLOYEE PAPPADAKIS, A MEMBER OF
HIS CREW, TO REQUEST HIS SERVICES FOR THE WEEKEND. ACCORDING TO THE
SUPERVISOR, PAPPADAKIS WAS TALKING TO BERNIE RAPACON, AND AS MORSE
APPROACHED THEM, ROBINSON PASSED GOING IN THE OPPOSITE DIRECTION. MORSE
AVERS HE ASKED PAPPADAKIS TO WORK OVERTIME BUT THE EMPLOYEE REFUSED, AND
HE DID NOT ASK RAPACON TO DO SO; THAT IT WAS THEN ABOUT 4:10 P.M., THE
WHISTLE HAD BLOWN FOR THE END OF THE SHIFT, AND NEITHER ROBINSON NOR ANY
OTHER EMPLOYEE WAS AROUND AT THE TIME. THE SUPERVISOR STATES HE DID NOT
ASK ROBINSON TO WORK OVERTIME BECAUSE THE LATTER WAS NOT PRESENT AND HAD
LEFT THE PREMISES, BUT HE WOULD HAVE ASKED HIM IF ROBINSON WERE
AVAILABLE.
ROBINSON TESTIFIED THAT AT 4:00 P.M. ON AUGUST 23 HE WAS STANDING AT
THE UPPER END OF THE SHOP, NEXT TO SOME LOCKERS, TALKING TO RAPACON;
THAT MORSE CAME OVER AND ASKED RAPACON TO WORK OVERTIME ON THE 24TH AND
25TH, BUT THE LATTER REFUSED THE REQUEST; THAT MORSE LOOKED AT ROBINSON
BUT DID NOT ASK THIS EMPLOYEE TO WORK OVERTIME; THAT THE SUPERVISOR
LEFT AND THE TWO EMPLOYEE CONTINUED TO TALK THEREAFTER. ON THE
FOLLOWING MONDAY MORNING ROBINSON ASKED MORSE WHY HE DIDN'T REQUEST HIM
TO WORK OVERTIME. THE SUPERVISOR SAID "DON'T YOU REMEMBER ME ASKING YOU
TO WORK?", AND ROBINSON REPLIED "NO, CAUSE YOU DIDN'T ASK".
RAPACON TESTIFIED THAT ON AUGUST 23, AT 4:00 P.M. HE WAS TALKING WITH
AND STANDING NEXT TO ROBINSON AT THE MAIN DOORS WHEN MORSE APPROACHED
THEM; THAT THE SUPERVISOR ASKED RAPACON IF HE WANTED TO WORK OVERTIME
ON SATURDAY AND SUNDAY, THE NEXT TWO DAYS, AND RAPACON ANSWERED THAT HE
DID NOT WANT TO DO SO.
THE ABOVE VERSIONS OF WHAT OCCURRED ON AUGUST 23 AT 4:00 P.M.
PRESENT A SHARP CONFLICT IN TESTIMONY. HOWEVER, SEVERAL FACTORS LEAD ME
TO CREDIT THE VERSION AS RELATED BY ROBINSON AND RAPACON RATHER THAN
THAT TESTIFIED TO BY MORSE. THE TESTIMONY PRESENTED BY ROBINSON, IN
ADDITION TO RECITING DETAILS OF THE EVENT, WAS CORROBORATED BY RAPACON,
WHO WORKED IN A DIFFERENT CREW, AND NO EFFORT WAS MADE BY RESPONDENT TO
PRESENT PAPPADAKIS AS A WITNESS TO REBUT SAID TESTIMONY. MOREOVER,
SINCE THE SUPERVISOR STATED HE WOULD HAVE ASKED ROBINSON TO WORK
OVERTIME IF PRESENT, IT STRAINS CREDULITY THAT MORSE WOULD NOT HAVE
STOPPED HIM IF THEY HAD IN FACT PASSED EACH OTHER. ACCORDINGLY, I FIND
THAT MORSE ASKED RAPACON TO WORK OVERTIME, IN THE PRESENCE OF ROBINSON,
AS RELATED BY THESE TWO EMPLOYEES AND I ACCEPT THEIR VERSIONS OF WHAT
OCCURRED AT 4:00 P.M. ON AUGUST 23.
13. ON AUGUST 28 ROBINSON FILED A GRIEVANCE WITH MANAGEMENT AGAINST
MORSE ALLEGING THAT HE WAS NOT DISTRIBUTING THE OVERTIME EQUALLY AMONG
HIS CREW. IT WAS ALLEGED THAT MORSE BROUGHT IN A MAN FROM ANOTHER CREW,
AND HE DID NOT CONSIDER THE AMOUNT OF OVERTIME AN EMPLOYEE HAD WORKED IN
A YEAR. AT THE SECOND STEP OF THE GRIEVANCE PROCEDURE THE GROUP
SUPERINTENDENT CONCLUDED THAT IN THE FUTURE OVERTIME WOULD BE
DISTRIBUTED EQUALLY TO ALL EMPLOYEES REGARDLESS OF WHETHER THEY WERE
NUCLEAR QUALIFIED OR IN WHICH CREW THEY WORKED. /4/
14. NO OTHER MECHANIC FILED CHARGES AGAINST RESPONDENT ALLEGING
DISCRIMINATION UNDER THE ORDER HEREIN.
15. NO OVERTIME WORK WAS PERFORMED BY MORSE'S CREW BETWEEN JULY 13
AND AUGUST 25, BUT ROBINSON DID WORK OVERTIME ON JULY 13. THE EMPLOYEE
ALSO WORKED OVERTIME ON SEPTEMBER 1 AND 8, BUT REFUSED OVERTIME ON
SEPTEMBER 15. THE RECORD REFLECTS THAT, EXCEPT FOR AUGUST 23, MORSE HAD
ALWAYS ASKED ROBINSON TO WORK OVERTIME WHEN HE WAS AVAILABLE.
COMPLAINANT CONTENDS THAT, UNDER THE ORDER HEREIN, RESPONDENT
DISCRIMINATORILY DENIED OVERTIME TO ROBINSON IN VIOLATION OF 19(A)(1)(2)
AND (4) THEREOF. IT ADVERTS TO THE FACT THAT THE ALLEGED
DISCRIMINATIONS OCCURRED SHORTLY AFTER CHARGES ON ROBINSON'S BEHALF WERE
FILED AGAINST THE EMPLOYER.
THESE ARE, HOWEVER, CERTAIN INSTANCES WHERE AN UNFAIR LABOR PRACTICE
PROCEEDING IS BARRED FROM CONSIDERATION. THUS, SECTION 19(D) OF THE
ORDER PROVIDES IN PART:
" . . . ISSUES WHICH CAN BE RAISED UNDER A GRIEVANCE PROCEDURE MAY,
IN THE DISCRETION OF
THE AGGRIEVED PARTY, BE RAISED UNDER THAT PROCEDURE OR THE COMPLAINT
PROCEDURE UNDER THIS
SECTION, BUT NOT UNDER BOTH PROCEDURES,"
IT SEEMS CLEAR FROM THE LANGUAGE ALONE THAT AN AGGRIEVED PARTY, WHO
HAS AN AVAILABLE GRIEVANCE PROCEDURE, MUST ELECT WHETHER TO PURSUE THAT
AVENUE OR THE UNFAIR LABOR PRACTICE PROCEEDING. AN ELECTION TO FILE A
GRIEVANCE WILL NECESSARILY BAR A COMPLAINT ALLEGING AN UNFAIR LABOR
PRACTICE AS TO THE SAME CONDUCT WHICH IS DEEMED GRIEVOUS.
IN THE CASE AT BAR ROBINSON FILED A GRIEVANCE ON AUGUST 28 IN RESPECT
TO THE ASSIGNMENT OF OVERTIME WORK FOR AUGUST 24 AND 25 BY SUPERVISOR
MORSE. THIS GRIEVANCE WENT THROUGH STEP 2 OF THE NEGOTIATED GRIEVANCES
PROCEDURE AND RESULTED IN A DETERMINATION BY THE SUPERINTENDENT THAT
OVERTIME WOULD HENCEFORTH BE DISTRIBUTED FAIRLY. WHILE THE RECORD IS
NOT CLEAR THAT THE GRIEVANCE REFERRED SPECIFICALLY TO THE FAILURE BY
MORSE TO ASK ROBINSON TO WORK ON AUGUST 24 AND 25, THE TESTIMONY BY
ROBINSON WARRANTS THE INFERENCE THAT THE GRIEVANCE STEMMED FROM THE
REFUSAL TO ASK HIM ON AUGUST 23 TO WORK OVERTIME ON THAT WEEKEND.
MOREOVER, THAT PRECISE ISSUE COULD HAVE BEEN RAISED DURING THE GRIEVANCE
PROCEEDING AND WAS EMBRACED WITHIN THE ALLEGATION MADE BY ROBINSON
AGAINST MORSE IN REGARD TO OVERTIME. THUS, EVEN IF THE GRIEVANCE FILED
BY ROBINSON WAS NOT EXPLICIT IN RESPECT TO NAMING ROBINSON AS BEING
DISCRIMINATORILY DENIED OVERTIME BY MORSE ON AUGUST 23, IT WOULD NOT
MAKE 19(D) INOPERATIVE. SEE U.S. ARMY TANK AUTOMATIVE COMMAND, WARREN,
MICHIGAN. A/SLMR NO. 447.
THE UTILIZATION BY ROBINSON OF THE GRIEVANCE PROCEDURE, IN RESPECT TO
THE OVERTIME ASSIGNMENT ON AUGUST 23, CONVINCES ME THAT THIS ISSUE MAY
NOT PROPERLY BE BROUGHT BEFORE THE ASSISTANT SECRETARY IN AN UNFAIR
LABOR PRACTICE COMPLAINT. HAVING SOUGHT TO PROCEED UNDER THE NEGOTIATED
GRIEVANCE PROCEDURE RE THE OVERTIME ISSUE, ROBINSON IS, AS I VIEW
SECTION 19(D) OF THE ORDER, PRECLUDED FROM RAISING THIS ISSUE HEREIN.
ACCORDINGLY, I WOULD FIND NO VIOLATION BY RESPONDENT OF SECTIONS
19(A)(1)(2) OR (4) OF THE ORDER.
UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS. THE
UNDERSIGNED RECOMMENDS THAT THE COMPLAINT HEREIN AGAINST DEPARTMENT OF
THE NAVY, MARE ISLAND SHIPYARD, BE DISMISSED IN ITS ENTIRETY.
DATED: AUGUST 15, 1975
WASHINGTON, D.C.
/1/ THREE OTHER EMPLOYEES WERE STEWARDS OF COMPLAINANT UNION BUT
REPRESENTED DIFFERENT CREWS.
/2/ ALL DATES HEREINAFTER MENTIONED ARE IN 1974 UNLESS OTHERWISE
INDICATED.
/3/ SHRUM WAS CONTACTED THAT EVENING BY SANDERS AND REPORTED FOR WORK
ON THE WEEKEND ALONG WITH CECCHINI, HUWEILER AND SANDERS.
/4/ THE RECORD DOES NOT REFLECT DETAILS RE THE HANDLING OF
DISPOSITION OF THE GRIEVANCE, OR TO WHAT EXTENT ROBINSON'S COMPLAINT WAS
CONSIDERED. HOWEVER, IT DOES APPEAR, AND I FIND THAT THE GRIEVANCE
STEMMED FROM THE FAILURE BY MORSE TO ASSIGN OVERTIME ON AUGUST 23 TO
ROBINSON.
5 A/SLMR 569; P. 643; CASE NO. 62-4279(RO); OCTOBER 24, 1975.
DEFENSE MAPPING AGENCY AEROSPACE CENTER,
ST. LOUIS, MISSOURI
A/SLMR NO. 569
THIS CASE INVOLVED A PETITION FILED BY THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, INDEPENDENT, LOCAL 1827 (NFFE) SEEKING AN ELECTION IN
A UNIT OF ALL THE ACTIVITY'S NONPROFESSIONAL EMPLOYEES. THE ACTIVITY
AGREED WITH THE LEVEL OF RECOGNITION SOUGHT, I.E., ACTIVITY-WIDE.
HOWEVER, IT CONTENDED THAT THE CLAIMED ACTIVITY-WIDE UNIT SHOULD INCLUDE
PROFESSIONAL EMPLOYEES AS SUCH EMPLOYEES SHARE A COMMUNITY OF INTEREST
WITH THE NONPROFESSIONAL EMPLOYEES SOUGHT BY THE NFFE, AND THAT THE
EXCLUSION OF THE PROFESSIONAL EMPLOYEES WILL NOT PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
THE ASSISTANT SECRETARY FOUND THE PETITIONED FOR UNIT TO BE
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. IN THIS REGARD,
HE NOTED THAT ALL OF THE ACTIVITY'S EMPLOYEES ARE UNDER THE DIRECTION OF
THE CENTER DIRECTOR; HAVE A COMMON MISSION; ARE SUBJECT TO SIMILAR
PERSONNEL POLICIES AND WORKING CONDITIONS; AND WORK IN CLOSE PROXIMITY
IN A HIGHLY INTEGRATED OPERATION IN WHICH FREQUENT INTERACTION AND JOB
RELATED CONTACTS OCCUR. WITH RESPECT TO THE ACTIVITY'S CONTENTION THAT
PROFESSIONAL EMPLOYEES ALSO SHOULD BE INCLUDED IN THE CLAIMED UNIT, THE
ASSISTANT SECRETARY NOTED THAT SECTION 10(B)(4) OF THE ORDER GIVES
PROFESSIONAL EMPLOYEES THE RIGHT OF SELF-DETERMINATION WHENEVER, AS
HERE, A MIXED UNIT OF PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES IS
CONSIDERED APPROPRIATE. THEREFORE, SEPARATE FINDINGS OF APPROPRIATENESS
MUST BE MADE WITH RESPECT TO THE PROFESSIONAL EMPLOYEES AND THE
NONPROFESSIONAL EMPLOYEES IN THE EVENT THAT A MAJORITY OF THE
PROFESSIONAL EMPLOYEES DOES NOT VOTE FOR INCLUSION IN A UNIT WITH
NONPROFESSIONAL EMPLOYEES. IT FOLLOWS, THEREFORE, THAT WHERE A MIXED
UNIT IS APPROPRIATE, BY DEFINITION THE SEPARATE UNITS OF PROFESSIONAL
AND NONPROFESSIONAL EMPLOYEES WHICH COMPRISE THE MIXED UNIT ALSO ARE
APPROPRIATE. ACCORDINGLY, BECAUSE THE NFFE IN THE INSTANT CASE HAD
PETITIONED ONLY FOR A UNIT OF NONPROFESSIONAL EMPLOYEES, AND THE
EMPLOYEES IN SUCH UNIT SHARES A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST AT A LEVEL RECOGNITION WHICH WILL PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS, THE ASSISTANT SECRETARY ORDERED AN
ELECTION TO BE CONDUCTED IN THE UNIT FOUND APPROPRIATE.
DEFENSE MAPPING AGENCY AEROSPACE CENTER,
ST. LOUIS, MISSOURI
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, INDEPENDENT, LOCAL 1827
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER KRISTINE K.
SNEERINGER. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE
FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED. /1/
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILED BY BOTH
PARTIES, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE NFFE SEEKS AN ELECTION IN A UNIT CONSISTING OF ALL PERMANENT
FULL-TIME GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES OF THE DEFENSE
MAPPING AGENCY AEROSPACE CENTER (CENTER) WHO WORK AT THE LATTER'S ST.
LOUIS AIR FORCE FACILITY AND SOUTH ANNEX IN ST. LOUIS, MISSOURI,
EXCLUDING ALL PROFESSIONALS, MANAGEMENT OFFICIALS, CONFIDENTIAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, GUARDS AND SUPERVISORS AS DEFINED IN THE
ORDER. /2/ THE ACTIVITY AGREES WITH THE LEVEL OF RECOGNITION SOUGHT BY
THE NFFE IN THIS MATTER, I.E., ACTIVITY-WIDE IN ST. LOUIS. HOWEVER, IT
CONTENDS THAT SUCH UNIT SHOULD INCLUDE THE PROFESSIONAL EMPLOYEES OF THE
ACTIVITY AS SUCH EMPLOYEES SHARE A COMMUNITY OF INTEREST WITH THE
NONPROFESSIONAL EMPLOYEES SOUGHT BY THE NFFE AND THEIR EXCLUSION FROM
THE CLAIMED ACTIVITY-WIDE UNIT WILL NOT PROMOTE EFFECTIVE DEALINGS OR
EFFICIENCY OF AGENCY OPERATIONS.
THE CENTER IS ONE OF FIVE ORGANIZATIONAL ELEMENTS OF THE DEFENSE
MAPPING AGENCY WHICH WAS CREATED IN 1971 TO CONSOLIDATE ALL MILITARY
MAPPING, CHARTING, AND GEODESY UNDER A SINGLE DEPARTMENT OF DEFENSE
DIRECTORATE. IT IS CHARGED WITH MEETINGS THE AEROSPACE MAPPING,
CHARTING, AND GEODETIC REQUIREMENTS OF THE MILITARY ORGANIZATIONS OF THE
DEPARTMENT OF DEFENSE. ITS END PRODUCTS INCLUDE NAVIGATION AND PLANNING
CHARTS, FLIGHT INFORMATION PUBLICATIONS, AIR TARGETS MATERIALS, AND
SPECIAL PRODUCTS SUCH AS CARTOGRAPHIC FILM STRIPS USED BY MILITARY
PILOTS. THE CENTER ALSO HOUSES SPECIAL DATA FILES AVAILABLE TO ALL OF
THE DEPARTMENT OF DEFENSE DIRECTORATES; HAS PROVIDED CHARTING AND
CARTOGRAPHIC SERVICE TO THE NATIONAL AERONAUTICS AND SPACE
ADMINISTRATION; AND WORKS DIRECTLY WITH THE MILITARY TO INSURE THAT
CARTOGRAPHIC AND GEODETIC PRODUCTS ARE AVAILABLE TO SUPPORT
TECHNOLOGICAL ADVANCES. IN ACCOMPLISHING ITS MISSION, THE CENTER
UTILIZES A HIGHLY INTEGRATED OPERATION IN WHICH THE GREAT PORTION OF ITS
WORK IS PERFORMED AT TWO LOCATIONS IN THE ST. LOUIS AREA WHICH LOCATIONS
ARE APPROXIMATELY SIX MILES APART. /3/
THE CENTER EMPLOYS OVER 3000 EMPLOYEES IN THE ST. LOUIS AREA, ALL
UNDER THE CENTER DIRECTOR WHO HAS ULTIMATE RESPONSIBILITY FOR ALL
PERSONNEL MATTERS AFFECTING THE CENTER EMPLOYEES. IN THIS REGARD, HE IS
ASSISTED BY A CIVILIAN PERSONNEL OFFICE WHICH RETAINS PERSONNEL FILES OF
ALL OF THE CENTER EMPLOYEES LOCATED IN ST. LOUIS. THE EMPLOYEES OF THE
CENTER LOCATED IN ST. LOUIS ARE SUBJECT TO COMMON WORKING CONDITIONS,
FRINGE BENEFITS, GRIEVANCE PROCEDURES, INCENTIVE AWARD PROGRAMS, AND
TRAINING PROGRAMS. IN ADDITION, THE AREAS OF CONSIDERATION FOR BOTH
PROMOTIONS AND REDUCTIONS IN FORCE GENERALLY ARE CENTER-WIDE. BECAUSE
OF THE PROXIMITY OF THE EMPLOYEES OF THE CENTER IN ST. LOUIS AND THE
HIGHLY INTEGRATED NATURE OF ITS OPERATION, THE EMPLOYEES OF VARIOUS
ORGANIZATIONAL LEVELS OF THE CENTER INTERACT FREQUENTLY. THUS, THE
RECORD REVEALS THAT THEY HAVE SUBSTANTIAL JOB RELATED CONTACTS AND THEY
PARTICIPATE ON THE NUMEROUS COMMITTEES WHICH ARE RESPONSIBLE FOR
INSURING THE COORDINATION OF THE CENTER'S OPERATIONS.
THE ACTIVITY CONTENDS THAT THE CENTER'S PROFESSIONAL EMPLOYEES, WHO
CONSTITUTE APPROXIMATELY ONE-HALF OF THE WORK FORCE, AND ITS
NONPROFESSIONAL EMPLOYEES ARE SUBJECT TO THE SAME TERMS AND CONDITIONS
OF EMPLOYMENT. IT CONTENDS FUTHER THAT ITS PROFESSIONAL EMPLOYEES WORK
BOTH DIRECTLY AND INDIRECTLY WITH ITS NONPROFESSIONAL EMPLOYEES IN
PERFORMING THEIR ASSIGNED FUNCTIONS AND THAT EXCLUDING THE PROFESSIONAL
EMPLOYEES FROM THE UNIT WILL PLACE AN ARBITRARY AND ARTIFICIAL BARRIER
BETWEEN TWO GROUPS OF ITS EMPLOYEES WHO SHARE A COMMUNITY OF INTEREST
AND NECESSARILY WILL DECREASE EFFECTIVE DEALINGS. ALSO, IT ASSERTS THAT
SEPARATING THE TWO GROUPS OF EMPLOYEES WILL CREATE THE LIKELIHOOD OF
DIFFERENT STANDARDS HAVING TO BE APPLIED TO ITS EMPLOYEES WHICH WILL, IN
THE ACTIVITY'S VIEW, FRAGMENT AND LEAD TO DECREASED EFFICIENCY OF ITS
OPERATIONS.
BASED ON THE FOREGOING, I FIND THAT THE PETITIONED FOR UNIT OF THE
ACTIVITY'S NONPROFESSIONAL EMPLOYEES IS APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION. IN THIS REGARD, IT WAS NOTED PARTICULARLY THAT
ALL OF THE EMPLOYEES OF THE CENTER IN ST. LOUIS ARE UNDER THE DIRECTION
OF THE CENTER DIRECTOR, HAVE A COMMON MISSION AND ARE SUBJECT TO SIMILAR
PERSONNEL POLICIES AND TERMS AND CONDITIONS OF EMPLOYMENT.
ADDITIONALLY, ALL OF THE CLAIMED EMPLOYEES WORK IN CLOSE PROXIMITY IN A
HIGHLY INTEGRATED OPERATION IN WHICH FREQUENT INTERACTION AND JOB
RELATED CONTACTS OCCUR. UNDER THESE CIRCUMSTANCES, I FIND THAT THE
CLAIMED EMPLOYEES SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
AND THAT SUCH A UNIT WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS.
WITH RESPECT TO THE INCLUSION OF PROFESSIONAL EMPLOYEES SOUGHT BY THE
ACTIVITY, IT WAS NOTED THAT, IN EFFECT, SECTION 10(B)(4) OF THE ORDER
AFFORDS PROFESSIONAL EMPLOYEES THE RIGHT OF SELF-DETERMINATION WHENEVER
A MIXED UNIT OF PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES IS FOUND
APPROPRIATE. THEREFORE, IN CASES WHERE A MIXED UNIT IS FOUND
APPROPRIATE, SEPARATE FINDINGS OF APPROPRIATENESS ALSO MUST BE MADE WITH
RESPECT TO THE NONPROFESSIONAL EMPLOYEES AND PROFESSIONAL EMPLOYEES WHO
COMPRISE SUCH UNIT IN THE EVENT THAT A MAJORITY OF THE PROFESSIONAL
EMPLOYEES DOES NOT VOTE FOR INCLUSION IN THE UNIT WITH NONPROFESSIONAL
EMPLOYEES. IN THE INSTANT CASE, ONLY THE NONPROFESSIONAL EMPLOYEES HAVE
BEEN SOUGHT AT A LEVEL OF RECOGNITION WHICH THE ACTIVITY AGREES IS
APPROPRIATE. IN THIS REGARD, THE ACTIVITY TAKES THE POSITION THAT A
MIXED CENTER-WIDE UNIT OF PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES
WOULD CONSTITUTE AN APPROPRIATE UNIT AND IT IS CLEAR THAT IF SUCH A
MIXED UNIT WERE SOUGHT, IT WOULD BE FOUND TO BE APPROPRIATE UNDER THE
CIRCUMSTANCES DESCRIBED ABOVE. IT FOLLOWS, THEREFORE, THAT IF THE MIXED
UNIT IS APPROPRIATE, BY DEFINITION SO ALSO ARE THE SEPARATE UNITS OF
NONPROFESSIONAL AND PROFESSIONAL EMPLOYEES WHICH COMPRISE THE MIXED
UNIT. ACCORDINGLY, AS THE NFFE IN THE INSTANT CASE HAS PETITIONED ONLY
FOR A UNIT OF NONPROFESSIONAL EMPLOYEES, AND SUCH UNIT, STANDING ALONE,
CONSTITUTES AN APPROPRIATE UNIT, I SHALL DIRECT AN ELECTION AMONG
NONPROFESSIONAL EMPLOYEES AS DESCRIBED BELOW:
ALL GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES OF THE DEFENSE MAPPING
AGENCY AEROSPACE
CENTER IN THE ST. LOUIS, MISSOURI, AREA, EXCLUDING ALL PROFESSIONALS,
/4/ MANAGEMENT
OFFICIALS, CONFIDENTIAL EMPLOYEES, /5/ EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER
THAN A PURELY CLERICAL CAPACITY, GUARDS, AND SUPERVISORS AS DEFINED
IN THE ORDER. /6/
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE AS EARLY AS POSSIBLE, BUT NOT LATER THAN
60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA DIRECTOR SHALL
SUPERVISE THE ELECTION SUBJECT TO THE ASSISTANT SECRETARY'S REGULATIONS.
ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED DURING THE
PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES
WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY WERE OUT ILL, OR ON
VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE MILITARY SERVICE WHO
APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO
QUIT OR WERE DISCHARGED FOR CAUSE, SINCE THE DESIGNATED PAYROLL PERIOD
AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE.
THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY WISH TO BE REPRESENTED BY
THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, INDEPENDENT, LOCAL 1827.
DATED, WASHINGTON, D.C.
OCTOBER 22, 1975
/1/ UPON AN OBJECTION BY THE PETITIONER, THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, INDEPENDENT, LOCAL 1927, HEREIN CALLED NFFE, ON THE
BASIS OF IRRELEVANCY, THE HEARING OFFICER REJECTED THE ACTIVITY'S
ATTEMPT TO INTRODUCE INTO EVIDENCE TWO INTERDEPARTMENTAL MEMORANDA
WHICH, IN THE ACTIVITY'S VIEW, PURPORTED TO SHOW WORK RELATED CONTACTS
BETWEEN THE VARIOUS DEPARTMENTS OF THE ACTIVITY. IN MY VIEW, THE
INTERDEPARTMENTAL MEMORANDA IN QUESTION ARE RELEVANT TO THE ISSUES
INVOLVED HEREIN. ACCORDINGLY, I HEREBY REVERSE THE HEARING OFFICER'S
RULINGS AND RECEIVE THIS EXHIBIT INTO THE RECORD. BECAUSE, IN REACHING
THE DECISION IN THIS CASE, I HAVE CONSIDERED THE ENTIRE RECORD,
INCLUDING THE EXHIBIT IN QUESTION, THE HEARING OFFICER'S REJECTION OF
SUCH EXHIBIT AT THE HEARING WAS NOT CONSIDERED TO CONSTITUTE PREJUDICIAL
ERROR.
/2/ THE UNIT APPEARS ESSENTIALLY AS AMENDED AT THE HEARING.
/3/ IN ADDITION TO ITS HEADQUARTERS IN ST. LOUIS, THE CENTER HAS
FLIGHT INFORMATION OFFICES IN GERMANY AND ALASKA, A DEPOT IN HAWAII, A
GEODETIC SQUADRON IN WYOMING, AND A CARTOGRAPHIC TECHNICAL SQUADRON IN
CALIFORNIA. THE MAJORITY OF THE EMPLOYEES AT THESE LOCATIONS ARE EITHER
MILITARY OR PRESENTLY ARE PART OF BASE-WIDE UNITS WHICH INCLUDE THEM AS
EMPLOYEES OF TENANT ACTIVITIES.
/4/ THE PARTIES STIPULATED THAT EMPLOYEES CLASSIFIED AS GEOGRAPHER,
150 SERIES; FINANCIAL MANAGER, 505 SERIES; ACCOUNTANT, 510 SERIES;
NURSE, 610 SERIES; GENERAL ENGINEER, 801 SERIES; CIVIL ENGINEER, 810
SERIES; ELECTRICAL ENGINEER, 850 SERIES; INDUSTRIAL ENGINEER, 896
SERIES; GENERAL ATTORNEY, 805 SERIES; GENERAL PHYSICAL SCIENTIST, 1301
SERIES; GEOPHYSICIST, 1313 SERIES; CHEMIST, 1320 SERIES; NAVIGATIONAL
INFORMATION SPECIALIST, 1361 SERIES; CARTOGRAPHER, 1370 SERIES;
GEODESIST, 1372 SERIES; PHOTOGRAPHIC TECHNOLOGIST, 1386 SERIES;
LIBRARIAN, 1410 SERIES; TECHNICAL INFORMATION SPECIALIST, 1412 SERIES;
OPERATIONS RESEARCHIST, 1512 SERIES; AND MATHEMATICIAN, 1520 SERIES ARE
PROFESSIONALS WITHIN THE MEANING OF THE ORDER. AS THERE IS NO EVIDENCE
IN THE RECORD WHICH INDICATES THAT THE PARTIES' STIPULATION IN THIS
REGARD WAS IMPROPER, I FIND THAT THE EMPLOYEES IN THESE CLASSIFICATIONS
ARE PROFESSIONALS WITHIN THE MEANING OF THE ORDER AND, THEREFORE, SHOULD
BE EXCLUDED FROM THE UNIT FOUND APPROPRIATE.
/5/ THE PARTIES STIPULATED THAT THE SECRETARIES TO THE DIRECTOR,
TECHNICAL DIRECTOR, DEPARTMENT HEADS, DIRECTORATE HEADS, THE STAFF
OFFICE HEADS, AND THE LABOR RELATIONS SPECIALIST ARE CONFIDENTIAL
EMPLOYEES WHO SHOULD BE EXCLUDED FROM ANY UNIT FOUND APPROPRIATE. AS
THERE IS NO EVIDENCE IN THE RECORD WHICH INDICATES THAT THE PARTIES'
STIPULATION IN THIS REGARD WAS IMPROPER, I FIND THAT THE ABOVE NOTED
EMPLOYEES ALSO SHOULD BE EXCLUDED FROM THE UNIT FOUND APPROPRIATE.
/6/ WHILE THE PARTIES STIPULATED THAT EMPLOYEES CLASSIFIED AS OTHER
THAN PERMANENT FULL-TIME SHOULD BE EXCLUDED FROM ANY UNIT FOUND
APPROPRIATE, I FIND THAT THE EVIDENCE SUPPORTING SUCH STIPULATION IS
INSUFFICIENT TO MAKE AN ELIGIBILITY DETERMINATION IN THIS REGARD.
5 A/SLMR 568; P. 640; CASE NO. 63-5452(RO); OCTOBER 24, 1975.
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
PUBLIC HEALTH SERVICE INDIAN HOSPITAL,
CLAREMORE, OKLAHOMA
A/SLMR NO. 568
THIS CASE AROSE AS A RESULT OF A REPRESENTATION PETITION FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3601, AFL-CIO, (AFGE)
SEEKING AN ELECTION IN A UNIT OF ALL PROFESSIONAL AND NONPROFESSIONAL
EMPLOYEES AT THE CLAREMORE INDIAN HOSPITAL, CLAREMORE, OKLAHOMA. THE
ACTIVITY AND THE INCUMBENT INTERVENOR, THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1748 (NFFE) CONTENDS THAT THEY WERE PARTIES TO
A NEGOTIATED AGREEMENT COVERING THE EMPLOYEES SOUGHT WHICH CONSTITUTED A
BAR AT THE TIME THE AFGE FILED ITS PETITION. THE AFGE, ON THE OTHER
HAND, ASSERTED, IN SUBSTANCE, THAT THE AGREEMENT COULD NOT ACT AS A BAR
BECAUSE IT WAS NEGOTIATED AND SIGNED BY A SUPERVISOR WHO ALSO WAS THE
NFFE LOCAL'S PRESIDENT AND CHIEF NEGOTIATOR.
THE ASSISTANT SECRETARY NOTED THAT IN PREVIOUS CASES IT HAD BEEN
FOUND THAT: (1) ATTACKS WOULD NOT BE APPROPRIATE ON AN EXISTING
BARGAINING RELATIONSHIP BASED ON AN ALLEGED IMPROPRIETY WHICH OCCURRED
MORE THAN SIX MONTHS PRIOR TO THE RAISING OF SUCH ISSUE; AND (2) UNFAIR
LABOR PRACTICE ISSUES, SUCH AS THOSE RAISED BY THE AFGE, ARE RAISED MORE
APPROPRIATELY IN THE CONTEXT OF AN UNFAIR LABOR PRACTICE PROCEEDING.
THE ASSISTANT SECRETARY FOUND NFFE LOCAL 1748 NOT TO BE DEFUNCT,
NOTING, AMONG OTHER THINGS, THAT THE NFFE NATIONAL REPRESENTATIVE, A
SIGNATORY TO THE PARTIES' NEGOTIATED AGREEMENT, APPOINTED LOCAL 1748'S
SECRETARY/TREASURER TO BE ACTING PRESIDENT OF THE LOCAL. WITH RESPECT
TO THE LOCAL PRESIDENT'S ATTEMPTED DISCLAIMER OF INTEREST IN
REPRESENTING THE UNIT EMPLOYEES, THE ASSISTANT SECRETARY NOTED THAT
LOCAL 1748'S PRESIDENT CONCEDED AT THE HEARING THAT THE PURPOSE OF THE
DISCLAIMER OF INTEREST WAS TO "CLEAR THE DECKS" FOR AN AFGE PETITION.
IN THIS CONNECTION, THE ASSISTANT SECRETARY STATED THAT SUCH A
STRATAGEM, WHICH WOULD PERMIT UNIT EMPLOYEE MEMBERS OF AN INCUMBENT
LABOR ORGANIZATION TO FACILITATE "A RAID" BY ANOTHER LABOR ORGANIZATION
DURING THE PERIOD OF A NEGOTIATED AGREEMENT, WOULD CREATE UNNECESSARY
INSTABILITY AND UNCERTAINTY AND WOULD, THEREFORE, BE INCONSISTENT WITH
THE PURPOSES AND POLICIES OF THE ORDER WHERE THE EVIDENCE DOES NOT
ESTABLISH THAT THE INCUMBENT LABOR ORGANIZATION IS, IN FACT, DEFUNCT.
UNDER ALL OF THE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT
THE NEGOTIATED AGREEMENT HEREIN CONSTITUTED A BAR TO THE AFGE'S
PETITION. ACCORDINGLY, HE ORDERED THAT THE PETITION BE DISMISSED.
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
PUBLIC HEALTH SERVICE INDIAN HOSPITAL,
CLAREMORE, OKLAHOMA
AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 3601, AFL-CIO
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1748
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER RAMON LOPEZ. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING A BRIEF FILED BY THE
INTERVENOR, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1748, HEREIN
CALLED NFFE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 3601, AFL-CIO, HEREIN CALLED AFGE, SEEKS AN ELECTION IN THE
FOLLOWING UNIT:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE CLAREMORE
INDIAN HOSPITAL, CLAREMORE,
OKLAHOMA, EXCLUDING MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER
THAN A PURELY CLERICAL CAPACITY, GUARDS, AND SUPERVISORS AS DEFINED
IN THE ORDER. /1/
THE ACTIVITY AND THE NFFE CONTEND THAT THEY WERE PARTIES TO A
NEGOTIATED AGREEMENT COVERING THE EMPLOYEES SOUGHT WHICH CONSTITUTED A
BAR AT THE TIME THE AFGE FILED THE PETITION IN THE INSTANT CASE. /2/
THE AFGE, ON THE OTHER HAND, ASSERTS, IN SUBSTANCE, THAT BECAUSE THE
NEGOTIATED AGREEMENT BETWEEN THE ACTIVITY AND THE NFFE WAS NEGOTIATED
AND SIGNED BY A SUPERVISOR WHO ALSO WAS NFFE LOCAL 1748'S PRESIDENT AND
CHIEF NEGOTIATOR, IT CANNOT CONSTITUTE A BAR TO ITS PETITION HEREIN.
THE RECORD REVEALS THAT ON MAY 15, 1974, A NEGOTIATED AGREEMENT
BETWEEN THE ACTIVITY AND THE NFFE WAS SIGNED BY MRS. BILLIE M. LIBER,
(THE CHAIRMAN OF THE ACTIVITY'S NEGOTIATING COMMITTEE AND THE ACTIVITY'S
ADMINISTRATIVE OFFICER), MR. THOMAS B. TALAMINI (THE ACTIVITY'S SERVICE
UNIT DIRECTOR), MR. QUANNAH BLACKWOOD (THE CHAIRMAN OF THE NFFE'S
NEGOTIATING COMMITTEE AND PRESIDENT OF NFFE LOCAL 1748), AND MR. TOM G.
CLARK (A NFFE NATIONAL REPRESENTATIVE).
WITH RESPECT TO THE AFGE'S CONTENTION THAT THE NEGOTIATED AGREEMENT
HEREIN CANNOT CONSTITUTE A BAR BECAUSE IT WAS NEGOTIATED AND SIGNED BY A
SUPERVISOR WHO ALSO WAS NFFE LOCAL 1748'S PRESIDENT AND CHIEF
NEGOTIATOR, THE EVIDENCE ESTABLISHES THAT SUCH ALLEGED CONDUCT OCCURRED
MORE THAN SIX MONTHS PRIOR TO THE FILING OF THE PETITION IN THIS MATTER.
IN THIS REGARD, IT HAS BEEN FOUND PREVIOUSLY THAT AN ATTACK ON THE
PROPRIETY OF THE GRANTING OF EXCLUSIVE RECOGNITION BASED ON EVENTS WHICH
OCCURRED MORE THAN SIX MONTHS PRIOR TO THE RAISING OF SUCH ISSUE WAS NOT
APPROPRIATE IN THAT THE RAISING OF SUCH AN ISSUE BASED ON EVENTS WHICH
OCCURRED MORE THAN SIX MONTHS BEFORE WOULD NOT SERVE TO PROMOTE
EFFECTIVE AND MEANINGFUL LABOR-MANAGEMENT RELATIONS AND, THEREFORE,
WOULD NOT BE CONSISTENT WITH THE PURPOSES AND POLICIES OF THE ORDER.
/3/ SIMILARLY, I FIND THAT THE AFGE'S ATTEMPT IN THE INSTANT CASE TO
ATTACK THE EXISTING NEGOTIATED AGREEMENT BETWEEN THE ACTIVITY AND THE
NFFE BASED ON ALLEGED EVENTS WHICH OCCURRED MORE THAN SIX MONTHS PRIOR
TO THE FILING OF THE SUBJECT PETITION WOULD BE INCONSISTENT WITH THE
CONCEPT OF STABLE LABOR-MANAGEMENT RELATIONS RESULTING FROM THE
EXECUTION OF NEGOTIATED AGREEMENTS. ACCORDINGLY, AND NOTING THAT THE
NEGOTIATED AGREEMENT INVOLVED HEREIN IS OTHERWISE VALID ON ITS FACT, I
REJECT THE AFGE'S ATTEMPT TO ATTACK SUCH AGREEMENT ON THE BASIS OF
ALLEGED SUPERVISORY INVOLVEMENT IN ITS NEGOTIATION AND EXECUTION
OCCURRING MORE THAN SIX MONTHS PRIOR TO THE FILING OF THE INSTANT
PETITION. MOREOVER, IN MY VIEW, MY ALLEGATION OF IMPROPER ACTIVITY
ASSISTANCE, SUCH AS THAT RAISED BY THE AFGE HEREIN, IS MORE
APPROPRIATELY RAISED IN AN UNFAIR LABOR PRACTICE FORUM RATHER THAN, AS
HERE, IN THE CONTEXT OF A REPRESENTATION PROCEEDING. /4/
THE RECORD SHOWS ALSO THAT NFFE LOCAL 1748'S PRESIDENT, QUANNAH
BLACKWOOD, SENT A LETTER, DATED FEBRUARY 18, 1975, TO THE ACTIVITY'S
ADMINISTRATIVE OFFICER, MRS. BILLIE M. LIBER, ADVISING THAT NFFE LOCAL
1748 "WISHES TO RELINQUISH ITS EXCLUSIVE RECOGNITION STATUS" AND CITING
SECTION 2.1 OF THE PARTIES' NEGOTIATED AGREEMENT. /5/ IN THIS
CONNECTION, THERE WAS NO EVIDENCE THAT THE ACTIVITY TOOK ANY ACTION IN
RESPONSE TO BLACKWOOD'S LETTER.
IN MY VIEW, THE EVIDENCE DOES NOT SUPPORT A FINDING THAT THE NFFE
DOES NOT DESIRE TO CONTINUE TO REPRESENT THE UNIT EMPLOYEES INVOLVED
HEREIN OR THAT THE NFFE IS DEFUNCT. IT HAS BEEN HELD PREVIOUSLY THAT IT
WILL EFFECTUATE THE PURPOSES AND POLICIES OF THE ORDER TO PERMIT
EMPLOYEES, WHO ARE COVERED BY AN OTHERWISE VALID NEGOTIATED AGREEMENT,
TO EXPRESS THEIR DESIRES FOR REPRESENTATION IN AN ELECTION RESULTING
FROM A PETITION FILED BY ANOTHER LABOR ORGANIZATION IF THEIR EXCLUSIVELY
RECOGNIZED OR CERTIFIED REPRESENTATIVE IS, IN FACT, DEFUNCT. /6/
CONSIDERING ALL OF THE CIRCUMSTANCES IN THE INSTANT CASE, I FIND THAT
NFFE LOCAL 1749 IS NOT, IN FACT, DEFUNCT INASMUCH AS RECORD EVIDENCE
DOES NOT ESTABLISH THAT IT IS EITHER UNWILLING OR UNABLE TO REPRESENT
THE EMPLOYEES IN THE UNIT FOR WHICH IT WAS CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE. IN THIS REGARD, IT WAS NOTED PARTICULARLY THAT TOM G.
CLARKE, A NFFE NATIONAL REPRESENTATIVE AND A SIGNATORY TO THE PARTIES'
NEGOTIATED AGREEMENT, APPOINTED NFFE LOCAL 1748'S SECRETARY/TREASURER,
MRS. NANCY WASHINGTON, AS ACTING PRESIDENT OF THE LOCAL SHORTLY AFTER
FEBRUARY 18, 1975. /7/ FURTHER, IT WAS NOTED THAT MRS. WASHINGTON
TESTIFIED THAT SHE CONTINUED TO RECEIVE NFFE MAIL AND TO HAVE POSSESSION
AND CONTROL OVER NFFE LOCAL 1748'S FUNDS. MOREOVER, WITH RESPECT TO THE
ATTEMPTED DISCLAIMER OF INTEREST, IT WAS NOTED THAT, AT THE HEARING,
BLACKWOOD CONCEDED THAT EMPLOYEE MEMBERS' RESIGNATION FROM THE NFFE AND
HIS ATTEMPT TO RELINQUISH THE NFFE'S RECOGNITION WERE MOTIVATED BY A
DESIRE TO "CLEAR THE DECKS" FOR AN AFGE PETITION.
IN MY VIEW, A STRATEGEM, SUCH AS THAT INVOLVED IN THE INSTANT CASE,
WHICH WOULD PERMIT UNIT EMPLOYEE MEMBERS OF AN INCUMBENT LABOR
ORGANIZATION TO FACILITATE "A RAID" BY ANOTHER LABOR ORGANIZATION DURING
THE PERIOD OF A NEGOTIATED AGREEMENT WOULD CREATE UNNECESSARY
INSTABILITY AND UNCERTAINTY AND WOULD, THEREFORE, BE INCONSISTENT WITH
THE PURPOSES AND POLICIES OF THE ORDER WHERE THE EVIDENCE DOES NOT
ESTABLISH THAT THE INCUMBENT LABOR ORGANIZATION IS, IN FACT, DEFUNCT.
ACCORDINGLY, UNDER ALL OF THE FOREGOING CIRCUMSTANCES, I CONCLUDE THAT
THE NEGOTIATED AGREEMENT INVOLVED HEREIN CONSTITUTED A BAR TO THE AFGE'S
PETITION AND, THEREFORE, I SHALL ORDER THAT SUCH PETITION BE DISMISSED.
/8/
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 63-5452(RO), BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
OCTOBER 24, 1975
/1/ ON OCTOBER 21, 1970, THE NFFE WAS CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE OF ALL PROFESSIONAL AND NONPROFESSIONAL GENERAL SERVICE
AND WAGE BOARD EMPLOYEES OF CLAREMORE INDIAN HOSPITAL, EXCLUDING
MANAGEMENT OFFICIALS, SUPERVISORS, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, GUARDS,
TEMPORARY PART-TIME AND CASUAL EMPLOYEES AND COMMISSIONED OFFICERS.
/2/ THE AFGE FILED THE SUBJECT PETITION ON FEBRUARY 27, 1975. THE
ACTIVITY AND THE NFFE ARE PARTIES TO A NEGOTIATED AGREEMENT WHICH BECAME
EFFECTIVE ON JULY 24, 1974, FOR A TERM OF THREE YEARS WITH AUTOMATIC
RENEWAL ON A YEARLY BASIS THEREAFTER.
/3/ SEE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, REGION II,
A/SLMR NO. 270.
/4/ SEE VETERANS ADMINISTRATION CENTER, TOGUS, MAINE, A/SLMR NO.
317, AT FOOTNOTE 1; U.S. ARMY ENGINEER DISTRICT, PHILADELPHIA, CORPS OF
ENGINEERS, A/SLMR NO. 80, AT FOOTNOTE 7; AND DEPARTMENT OF THE NAVY,
NAVAL AIR REWORK FACILITY, NAVAL AIR STATION ALAMEDA, CALIFORNIA, A/SLMR
NO. 61, AT FOOTNOTE 2.
/5/ SECTION 2.1 READS IN PERTINENT PART: "THIS AGREEMENT SHALL
TERMINATE IMMEDIATELY SHOULD THE UNION RELINQUISH ITS RECOGNITION IN
WRITING OR THE UNION'S EXCLUSIVE RECOGNITION BE WITHDRAWN."
/6/ SEE FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION, A/SLMR NO. 173, WHERE IT WAS HELD THAT AN EXCLUSIVE
REPRESENTATIVE IS DEFUNCT WHEN IT IS UNWILLING OR UNABLE TO REPRESENT
THE EMPLOYEES IN ITS EXCLUSIVELY RECOGNIZED OR CERTIFIED UNIT.
/7/ CLARK ALSO SENT A LETTER DATED FEBRUARY 24, 1975, TO TALAMINI,
THE ACTIVITY'S SERVICE UNIT DIRECTOR, REFERENCING BLACKWOOD'S FEBRUARY
18TH LETTER AND ASSERTING THAT, DUE TO A PROMOTION, BLACKWOOD WAS NO
LONGER QUALIFIED TO ACT FOR OR REPRESENT THE LOCAL UNDER THE EXECUTIVE
ORDER. THE LETTER ADVISED THAT MRS. WASHINGTON WOULD BE THE ACTING
PRESIDENT OF THE LOCAL UNTIL SUCH TIME AS THERE COULD BE NOMINATION AND
ELECTION OF OFFICERS.
/8/ IN VIEW OF THE DISPOSITION HEREIN, I FIND IT UNNECESSARY TO RULE
SPECIFICALLY ON THE ACTIVITY'S MOTION, MADE AT THE HEARING, TO DISMISS
THE AFGE'S PETITION; NOR DO I FIND IT NECESSARY TO RULE ON BLACKWOOD'S
ALLEGED SUPERVISORY STATUS.
5 A/SLMR 567; P. 637; CASE NOS. 71-3304(RO), 71-3305(RO); OCTOBER
24, 1975.
UNITED STATES DEPARTMENT OF AGRICULTURE,
FOREST SERVICE, WOLF CREEK JOB CORPS CIVILIAN
CONSERVATION CENTER AND UNITED STATES DEPARTMENT
OF AGRICULTURE, FOREST SERVICE, UMPQUA NATIONAL
FOREST, ROSEBURG, OREGON
A/SLMR NO. 567
THIS CASE AROSE AS A RESULT OF REPRESENTATION PETITIONS FILED BY THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1743 (NFFE) SEEKING TO
REPRESENT THE PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES AT THE UMPQUA
NATIONAL FOREST (FOREST) AND THE PROFESSIONAL AND NONPROFESSIONAL
EMPLOYEES OF THE WOLF CREEK JOB CORPS CIVILIAN CONSERVATION CENTER
(CENTER), IN SEPARATE UNITS. THE NFFE ORIGINALLY SOUGHT A FOREST-WIDE
UNIT OF PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES AT THE FOREST,
INCLUDING THE CENTER, BUT WITHDREW ITS PETITION EVEN THOUGH IT CONTINUED
TO ASSERT THAT A SINGLE OVERALL UNIT WAS APPROPRIATE.
UNDER THE CIRCUMSTANCES OF THIS CASE, AND NOTING PARTICULARLY THE
AGREEMENT OF THE NFFE AND THE ACTIVITIES THAT AN OVERALL UNIT COMPRISING
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF BOTH THE FOREST AND
THE CENTER CONSTITUTED AN APPROPRIATE UNIT AND THAT SUCH A UNIT WOULD
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS, THE
ASSISTANT SECRETARY CONCLUDED THAT AN OVERALL UNIT WAS APPROPRIATE FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER. IN THIS REGARD,
THE ASSISTANT SECRETARY NOTED, AMONG OTHER THINGS, THAT THE EMPLOYEES OF
THE FOREST AND THE CENTER ENJOY COMMON SUPERVISION AND COMMON PERSONNEL
POLICIES AND PRACTICES, INCLUDING LABOR RELATIONS POLICIES; HAVE
SIMILAR SKILLS, EDUCATION AND JOB CLASSIFICATIONS; ARE SUBJECT TO THE
SAME CONDITIONS OF HIRE REGARDLESS OF THEIR DUTY STATIONS; AND HAVE A
COMMON GRIEVANCE PROCEDURE. HE NOTED ALSO THAT THERE WAS EVIDENCE OF
INTERCHANGE AND TRANSFER AMONG BOTH FOREST AND CENTER EMPLOYEES AND THAT
THE FOREST SUPERVISOR WAS AUTHORIZED TO CONDUCT LABOR RELATIONS PROGRAMS
FOR BOTH FOREST AND CENTER EMPLOYEES.
ACCORDINGLY, THE ASSISTANT SECRETARY DIRECTED THAT ELECTIONS BE
CONDUCTED IN THE UNIT FOUND APPROPRIATE.
UNITED STATES DEPARTMENT OF AGRICULTURE,
FOREST SERVICE, WOLF CREEK JOB CORPS
CIVILIAN CONSERVATION CENTER /1/
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1743
UNITED STATES DEPARTMENT OF AGRICULTURE,
FOREST SERVICE, UMPQUA NATIONAL FOREST,
ROSEBURG, OREGON
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1743
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER
PATRICIA A. HUNT. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE
FREE FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THESE CASES, INCLUDING A JOINT BRIEF FILED
BY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1743, HEREIN
CALLED NFFE, AND THE FOREST SERVICE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITIES.
2. IN CASE NO. 71-3304(RO), THE NFFE SEEKS AN ELECTION IN A UNIT OF
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES ASSIGNED TO THE WOLF
CREEK JOB CORPS CIVILIAN CONSERVATION CENTER WITH APPOINTMENTS OF 30
DAYS OR MORE, EXCLUDING MANAGEMENT OFFICIALS, SUPERVISORS AS DEFINED IN
THE ORDER, ALL EMPLOYEES WITH DUTY STATIONS OTHER THAN THE WOLF CREEK
JOB CORPS CIVILIAN CONSERVATION CENTER, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND ALL
TEMPORARY, INTERMITTENT AND CASUAL EMPLOYEES. /2/
IN CASE NO. 71-3305(RO), THE NFFE SEEKS AN ELECTION IN A UNIT OF ALL
PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES ASSIGNED TO THE UMPQUA
NATIONAL FOREST WITH APPOINTMENTS OF 30 DAYS OR MORE, EXCLUDING
MANAGEMENT OFFICIALS, SUPERVISORS AS DEFINED IN THE ORDER, ALL EMPLOYEES
WITH DUTY STATIONS OTHER THAN THE UMPQUA NATIONAL FOREST, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, AND ALL TEMPORARY, INTERMITTENT AND CASUAL EMPLOYEES. /3/
THE ACTIVITIES TAKE THE POSITION THAT THE APPROPRIATE UNIT HEREIN
SHOULD INCLUDE THE PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF BOTH
THE WOLF CREEK JOB CORPS CIVILIAN CONSERVATION CENTER (CENTER) AND THE
UMPQUA NATIONAL FOREST (FOREST) AS, IN THE ACTIVITIES' VIEW, THE
PETITIONED FOR UNITS WOULD RESULT IN AN UNREASONABLE FRAGMENTATION OF
EMPLOYEES WHO SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST.
FURTHER, THE ACTIVITIES OBJECT TO THE PETITIONED FOR UNITS ON THE GROUND
THAT SEPARATE UNITS FOR THE CENTER AND THE FOREST WOULD IMPAIR EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
THE NFFE, IN ESSENTIAL AGREEMENT WITH THE ACTIVITIES, ORIGINALLY
SOUGHT A SINGLE UNIT OF ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES
AT THE FOREST AND CENTER, BUT SUBSEQUENTLY WITHDREW ITS PETITION AND
FILED THE INSTANT PETITIONS. THROUGHOUT THE PROCEEDINGS, HOWEVER, IT IS
CLEAR THAT THE NFFE SUPPORTED AN OVERALL FOREST-WIDE UNIT, INCLUDING THE
CENTER, DESPITE THE FACT THAT IT FILED PETITIONS FOR TWO SEPARATE UNITS.
THE MISSION OF THE FOREST SERVICE, AN AGENCY OF THE U.S. DEPARTMENT
OF AGRICULTURE, IS TO PROVIDE NATIONAL LEADERSHIP IN FOREST MANAGEMENT
AND PROTECTION. THE FOREST INVOLVED HEREIN IS ONE OF 19 FORESTS IN THE
PACIFIC NORTHWEST REGION OF THE FOREST SERVICE AND, AS THE RECORD
REVEALS, IS THE SITE FOR A VARIETY OF FEDERAL AND STATE OF OREGON
MANPOWER PROGRAMS TO ASSIST MINORITIES, THE AGED, AND LOW TO MIDDLE
INCOME GROUPS. THESE PROGRAMS INCLUDE: OPERATION MAINSTREAM; HIGH
SCHOOL AND COLLEGE WORK STUDY PROGRAMS; OPERATION GREEN THUMB; ACTION;
TITLE I AND TITLE 2 OF THE COMPREHENSIVE EMPLOYMENT AND TRAINING ACT;
AND VOLUNTEERS OF THE FOREST.
THE FOREST IS ADMINISTRATIVELY DIVIDED INTO A FOREST SUPERVISOR'S
OFFICE, THE WOLF CREEK JOB CORPS CIVILIAN CONSERVATION CENTER, AND FIVE
RANGER DISTRICTS. THE ADMINISTRATIVE HEAD OF THE FOREST IS THE FOREST
SUPERVISOR WHO EXERCISES ADMINISTRATIVE CONTROL OVER THE FIVE RANGER
DISTRICTS AND THE CENTER, AND HAS AUTHORITY TO ADMINISTER LABOR
RELATIONS FOR THE FOREST, INCLUDING THE CENTER. REPORTING TO THE FOREST
SUPERVISOR ARE THE DEPUTY FOREST SUPERVISOR, THE FIVE DISTRICT RANGERS
AND THE CENTER DIRECTOR. ALL PARTICIPATE ON A "FOREST MANAGEMENT TEAM"
AND REGULARLY MEET TO DECIDE ALL POLICY MATTERS REGARDING LAND-USE,
FINANCIAL PLANNING, AND HUMAN RESOURCES DEVELOPMENT FOR THE FOREST, AS
WELL AS THE CENTER'S OPERATIONS, CAPITAL AND VOCATIONAL PLANS.
THE RECORD REVEALS THAT THE FOREST HAS A CENTRALIZED PERSONNEL SYSTEM
SERVICING BOTH FOREST AND CENTER EMPLOYEES. IN THIS CONNECTION, THE
EVIDENCE ESTABLISHES THAT THE PERSONNEL OFFICE IS LOCATED IN THE FOREST
SUPERVISOR'S OFFICE AND, BECAUSE IT IS THE SITE FOR PAYROLL, BUDGETING,
TRAVEL, CONTRACTING, PROPERTY AND PURCHASING OPERATIONS, IT IS THE
CENTER OF CONSIDERABLE DAY-TO-DAY CONTACT BETWEEN FOREST AND CENTER
EMPLOYEES. THE RECORD SHOWS ALSO THAT FOREST AND CENTER EMPLOYEES HAVE
A COMMON GRIEVANCE PROCEDURE, HAVE ESSENTIALLY THE SAME SKILLS,
EDUCATION AND JOB CLASSIFICATIONS, AND THAT EMPLOYEES OF THE FOREST AND
THE CENTER HAVE IDENTICAL AREAS OF CONSIDERATION FOR PROMOTIONS,
REDUCTIONS-IN-FORCE, AND JOB POSTINGS APPEAR ON BOTH FOREST AND CENTER
BULLETIN BOARDS. THE EVIDENCE FURTHER REVEALS THAT THERE HAVE BEEN A
CONSIDERABLE NUMBER OF TRANSFERS AMONG FOREST AND CENTER EMPLOYEES.
THUS, IT WAS ESTABLISHED THAT OVER 30 PERCENT OF THE CENTER'S PRESENT
WORK FORCE HAD PRIOR FOREST SERVICE EXPERIENCE, AND THAT THE NUMBER OF
FOREST EMPLOYEES WHO HAD PREVIOUSLY WORKED FOR THE JOB CORPS WAS ABOVE
THE NATIONAL AVERAGE. THE RECORD SHOWS ALSO THAT BOTH FOREST AND CENTER
EMPLOYEES UTILIZE EACH OTHER'S EQUIPMENT IN THE DAY-TO-DAY PERFORMANCE
OF THEIR JOBS, AND THAT FOREST AND CENTER EMPLOYEES ARE SUBJECT TO THE
SAME CONDITIONS OF HIRE REGARDLESS OF THEIR DUTY STATION, OFTEN WORK IN
CLOSE PROXIMITY TO EACH OTHER, AND HAVE PERSONAL CONTACT ON AND OFF THE
JOB. IN THIS LATTER CONNECTION, RECORD TESTIMONY DISCLOSES THAT FOREST
AND CENTER EMPLOYEES ARRANGE FOR JOINT TRANSPORTATION TO AND FROM WORK
AND PARTICIPATE IN COMMON SOCIAL ACTIVITIES SPONSORED BY THE FOREST.
THE RECORD SHOWS ALSO THAT THE CENTER IS GEOGRAPHICALLY LOCATED IN THE
FOREST, AND OFTEN SERVES AS A MEETING PLACE FOR EMPLOYEE TRAINING
PROGRAMS FOR BOTH THE FOREST AND THE CENTER. ADDITIONALLY, THERE IS A
HIGH DEGREE OF INTERCHANGE AMONG BOTH FOREST AND CENTER EMPLOYEES DURING
EMERGENCIES AND CONSERVATION PROJECTS.
UNDER ALL OF THE FOREGOING CIRCUMSTANCES, AND NOTING PARTICULARLY
THAT THE NFFE AND THE ACTIVITES ARE IN ESSENTIAL AGREEMENT THAT AN
OVERALL UNIT COMPRISING ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES
OF BOTH THE FOREST AND THE CENTER CONSTITUTES AN APPROPRIATE UNIT WHICH
WOULD PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS, I
FIND THAT SUCH AN OVERALL UNIT IS APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION UNDER THE ORDER. THUS, THE RECORD REVEALS THAT
THE EMPLOYEES OF THE FOREST AND CENTER ENJOY COMMON SUPERVISION AND
COMMON PERSONNEL POLICIES AND PRACTICES, INCLUDING LABOR RELATIONS
POLICIES; HAVE IDENTICAL AREAS OF CONSIDERATION FOR PROMOTIONS AND
REDUCTIONS-IN-FORCE; ARE SUBJECT TO CENTRALIZED FORMULATION OF POLICY
AND PROGRAM DIRECTION; HAVE SIMILAR SKILLS, EDUCATION AND JOB
CLASSIFICATIONS; ARE SUBJECT TO THE SAME CONDITIONS OF HIRE REGARDLESS
OF THEIR DUTY STATIONS; HAVE A COMMON GRIEVANCE PROCEDURE; AND THERE
IS EVIDENCE OF INTERCHANGE AND TRANSFER AMONG BOTH FOREST AND CENTER
EMPLOYEES. /4/ MOREOVER, NOTING THE AGREEMENT OF THE PARTIES WITH
RESPECT TO THE SCOPE OF THE UNIT, AS WELL AS THE FACT THAT THE FOREST
SUPERVISOR IS AUTHORIZED TO CONDUCT LABOR RELATIONS PROGRAMS FOR BOTH
FOREST AND CENTER EMPLOYEES, I FIND THAT SUCH A UNIT WILL PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
ACCORDINGLY, I FIND THAT THE FOLLOWING EMPLOYEES CONSTITUTE A UNIT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE MEANING
OF SECTION 10 OF EXECUTIVE ORDER 11491, AS AMENDED:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES ASSIGNED TO THE UMPQUA
NATIONAL FOREST,
INCLUDING THE WOLF CREEK JOB CORPS CIVILIAN CONSERVATION CENTER, WITH
APPOINTMENTS OF 30 DAYS
OR MORE, EXCLUDING MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER
THAN A PURELY CLERICAL CAPACITY, ALL TEMPORARY, INTERMITTENT, AND
CASUAL EMPLOYEES, AND
SUPERVISORS AS DEFINED IN THE ORDER.
IT IS NOTED THAT THE UNIT FOUND APPROPRIATE INCLUDES PROFESSIONAL
EMPLOYEES. THE ASSISTANT SECRETARY IS PROHIBITED BY SECTION 10(B)(4) OF
THE ORDER FROM INCLUDING PROFESSIONAL EMPLOYEES IN THE UNIT WITH
EMPLOYEES WHO ARE NOT PROFESSIONALS UNLESS A MAJORITY OF THE
PROFESSIONAL EMPLOYEES VOTES FOR INCLUSION IN SUCH A UNIT. ACCORDINGLY,
THE DESIRES OF THE PROFESSIONAL EMPLOYEES AS TO INCLUSION IN THE UNIT
WITH NONPROFESSIONAL EMPLOYEES MUST BE ASCERTAINED. I SHALL, THEREFORE,
DIRECT SEPARATE ELECTIONS IN THE FOLLOWING GROUPS:
VOTING GROUP (A): ALL PROFESSIONAL EMPLOYEES ASSIGNED TO THE UMPQUA
NATIONAL FOREST,
INCLUDING THE WOLF CREEK CORPS CIVILIAN CONSERVATION CENTER, WITH
APPOINTMENTS OF 30 DAYS OR
MORE, EXCLUDING NONPROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS,
EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, ALL
TEMPORARY, INTERMITTENT, AND
CASUAL EMPLOYEES, AND SUPERVISORS AS DEFINED IN THE ORDER.
VOTING GROUP (B): ALL NONPROFESSIONAL EMPLOYEES ASSIGNED TO THE
UMPQUA NATIONAL FOREST,
INCLUDING THE WOLF CREEK JOB CORPS CIVILIAN CONSERVATION CENTER, WITH
APPOINTMENTS OF 30 DAYS
OR MORE, EXCLUDING PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS,
EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, ALL
TEMPORARY, INTERMITTENT, AND
CASUAL EMPLOYEES, AND SUPERVISORS AS DEFINED IN THE ORDER.
THE EMPLOYEES IN THE NONPROFESSIONAL VOTING GROUP (B) WILL BE POLLED
WHETHER OR NOT THEY DESIRE TO BE REPRESENTED BY THE NATIONAL FEDERATION
OF FEDERAL EMPLOYEES, LOCAL 1743.
THE EMPLOYEES IN THE PROFESSIONAL VOTING GROUP (A) WILL BE ASKED TWO
QUESTIONS ON THEIR BALLOTS: (1) WHETHER OR NOT THEY WISH TO BE INCLUDED
WITH THE NONPROFESSIONAL EMPLOYEES FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION, AND (2) WHETHER OR NOT THEY WISH TO BE REPRESENTED FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION BY THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1743. IN THE EVENT THAT THE MAJORITY OF THE VALID
VOTES OF VOTING GROUP (A) ARE CAST IN FAVOR OF INCLUSION IN THE SAME
UNIT AS THE NONPROFESSIONAL EMPLOYEES, THE BALLOTS OF VOTING GROUP (A)
SHALL BE COMBINED WITH THOSE OF VOTING GROUP (B).
UNLESS A MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) ARE CAST FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, THEY WILL
BE TAKEN TO HAVE INDICATED THEIR DESIRE TO CONSTITUTE A SEPARATE UNIT,
AND AN APPROPRIATE CERTIFICATION WILL BE ISSUED INDICATING WHETHER OR
NOT THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1743, WAS
SELECTED BY THE PROFESSIONAL EMPLOYEE UNIT.
THE UNIT DETERMINATION IN THE SUBJECT CASE IS BASED, IN PART, THEN,
UPON THE RESULTS OF THE ELECTION AMONG THE PROFESSIONAL EMPLOYEES.
HOWEVER, I WILL NOW MAKE THE FOLLOWING FINDINGS IN REGARD TO THE
APPROPRIATE UNIT:
1. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES VOTES FOR INCLUSION
IN THE SAME UNIT AS NONPROFESSIONAL EMPLOYEES, I FIND THAT THE FOLLOWING
EMPLOYEES WILL CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION WITHIN THE MEANING OF SECTION 10 OF THE ORDER:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES ASSIGNED TO UMPQUA
NATIONAL FOREST,
INCLUDING THE WOLF CREEK JOB CORPS CIVILIAN CONSERVATION CENTER, WITH
APPOINTMENTS OF 30 DAYS
OR MORE, EXCLUDING MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER
THAN A PURELY CLERICAL CAPACITY, ALL TEMPORARY, INTERMITTENT, AND
CASUAL EMPLOYEES, AND
SUPERVISORS AS DEFINED IN THE ORDER.
2. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES DOES NOT VOTE FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT
THE FOLLOWING TWO GROUPS OF EMPLOYEES CONSTITUTE SEPARATE UNITS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE MEANING
OF SECTION 10 OF THE ORDER:
(A) ALL PROFESSIONAL EMPLOYEES ASSIGNED TO THE UMPQUA NATIONAL
FOREST. INCLUDING THE WOLF
CREEK JOB CORPS CIVILIAN CONSERVATION CENTER, WITH APPOINTMENTS OF 30
DAYS OR MORE, EXCLUDING
NONPROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY CLERICAL CAPACITY, ALL TEMPORARY,
INTERMITTENT, AND CASUAL EMPLOYEES,
AND SUPERVISORS AS DEFINED IN THE ORDER.
(B) ALL NONPROFESSIONAL EMPLOYEES ASSIGNED TO THE UMPQUA NATIONAL
FOREST, INCLUDING THE
WOLF CREEK JOB CORPS CIVILIAN CONSERVATION CENTER, WITH APPOINTMENTS
OF 30 DAYS OR MORE,
EXCLUDING PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL
WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, ALL TEMPORARY,
INTERMITTENT AND CASUAL
EMPLOYEES, AND SUPERVISORS AS DEFINED IN THE ORDER.
ELECTIONS BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES IN
THE UNIT FOUND APPROPRIATE AS EARLY AS POSSIBLE, BUT NOT LATER THAN 60
DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA DIRECTOR SHALL SUPERVISE
THE ELECTIONS, SUBJECT TO THE ASSISTANT SECRETARY'S REGULATIONS.
ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED DURING THE
PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES
WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY WERE ILL, OR ON
VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE MILITARY SERVICE WHO
APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO
QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED PAYROLL PERIOD
AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE.
THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO BE REPRESENTED
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1743. /5/
DATED, WASHINGTON, D.C.
OCTOBER 24, 1975
/1/ THE NAME OF THIS ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE UNIT APPEARS AS AMENDED AT THE HEARING.
/3/ THE UNIT APPEARS AS AMENDED AT THE HEARING.
/4/ COMPARE UNITED STATES DEPARTMENT OF AGRICULTURE, BLACK HILLS
NATIONAL FOREST, A/SLMR NO. 58.
/5/ UNDER ALL THE CIRCUMSTANCES, INCLUDING THE FACT THAT THE UNIT
FOUND APPROPRIATE HEREIN WAS SUBSTANTIALLY THE SAME AS THAT SOUGHT
ORIGINALLY BY THE NFFE, NO ADDITIONAL POSTING OF A NOTICE OF UNIT
DETERMINATION WAS DEEMED WARRANTED.
5 A/SLMR 566; P. 632; CASE NO. 63-4826(CA); OCTOBER 24, 1975.
NATIONAL AERONAUTICS AND SPACE
ADMINISTRATION (NASA),
WASHINGTON, D.C.
AND
LYNDON B. JOHNSON SPACE CENTER (NASA)
HOUSTON, TEXAS
A/SLMR NO. 566
ON NOVEMBER 26, 1974, THE ASSISTANT SECRETARY ISSUED HIS DECISION AND
ORDER IN A/SLMR NO. 457, IN WHICH HE FOUND THAT THE RESPONDENT AGENCY
HAD VIOLATED SECTION 19(A)(1) OF THE ORDER BY CONDUCTING MEETINGS OR
INTERVIEWS WITH UNIT EMPLOYEES IN WHICH THEIR TERMS AND CONDITIONS OF
EMPLOYMENT WERE DISCUSSED, WHILE REFUSING THE REQUEST OF THE EXCLUSIVE
REPRESENTATIVE OF THESE EMPLOYEES TO PARTICIPATE IN SUCH DISCUSSIONS.
ON SEPTEMBER 26, 1975, THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL)
ISSUED ITS DECISION ON APPEAL, FLRC NO. 74A-95, IN WHICH IT HELD THAT
THE FINDING OF A VIOLATION OF SECTION 19(A)(1), IN THE CIRCUMSTANCES OF
THE CASE, WAS INCONSISTENT WITH THE PURPOSES OF THE ORDER. ACCORDINGLY,
THE COUNCIL SET ASIDE THE ASSISTANT SECRETARY'S DECISION IN A/SLMR NO.
457, AND REMANDED THE CASE TO HIM FOR APPROPRIATE ACTION.
BASED ON THE COUNCIL'S HOLDING IN FLRC NO. 74A-95, AND THE RATIONALE
CONTAINED THEREIN, THE ASSISTANT SECRETARY ORDERED THAT THE COMPLAINT IN
THIS CASE BE DISMISSED IN ITS ENTIRETY.
NATIONAL AERONAUTICS AND SPACE
ADMINISTRATION (NASA),
WASHINGTON, D.C.
AND
LYNDON B. JOHNSON SPACE CENTER (NASA),
HOUSTON, TEXAS
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL UNION 2284, AFL-CIO
THIS CASE WAS TRANSFERRED TO THE ASSISTANT SECRETARY PURSUANT TO
SECTION 206.5(A) OF THE ASSISTANT SECRETARY'S REGULATIONS AFTER THE
PARTIES SUBMITTED A STIPULATION OF FACTS AND EXHIBITS TO THE ASSISTANT
REGIONAL DIRECTOR. SPECIFICALLY, THE COMPLAINT ALLEGED THAT THE
RESPONDENTS VIOLATED SECTION 19(A)(1) AND (6) BY THE AGENCY'S ASSISTANT
ADMINISTRATOR FOR EQUAL OPPORTUNITY PROGRAMS HOLDING OFFICIAL MEETINGS
WITH SEVERAL GROUPS OF EMPLOYEES IN BARGAINING UNITS REPRESENTED BY THE
COMPLAINANT WITHOUT GIVING NOTIFICATION TO THE EXCLUSIVE REPRESENTATIVE,
AND BY DENYING THE COMPLAINANT THE RIGHT TO HAVE OBSERVERS PRESENT AT
SUCH MEETINGS. ALTHOUGH DISMISSING ALL ALLEGATIONS AGAINST THE
RESPONDENT ACTIVITY AND THE SECTION 19(A)(6) ALLEGATION AGAINST THE
RESPONDENT AGENCY, THE ASSISTANT SECRETARY FOUND, AMONG OTHER THINGS,
THAT THE RESPONDENT AGENCY'S CONDUCT IN CONDUCTING MEETINGS OR
INTERVIEWS WITH UNIT EMPLOYEES IN WHICH THEIR TERMS AND CONDITIONS OF
EMPLOYMENT WERE DISCUSSED, WHILE REFUSING THE REQUEST OF THE EXCLUSIVE
REPRESENTATIVE OF THESE EMPLOYEES TO PARTICIPATE IN SUCH DISCUSSIONS,
RAN COUNTER TO THE PURPOSES AND POLICIES OF THE ORDER WITH REGARD TO THE
OBLIGATION OWED TO AN EXCLUSIVE REPRESENTATIVE AS THE SPOKESMAN OF THE
EMPLOYEES IT REPRESENTS AND WAS VIOLATIVE OF SECTION 19(A)(1) OF THE
EXECUTIVE ORDER.
ON SEPTEMBER 26, 1975, THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL)
ISSUED ITS DECISION ON APPEAL IN THE SUBJECT CASE, FINDING THAT THE
ASSISTANT SECRETARY'S DECISION WAS, UNDER THE CIRCUMSTANCES OF THIS
CASE, INCONSISTENT WITH THE PURPOSES OF THE ORDER. ACCORDINGLY,
PURSUANT TO SECTION 2411.17(B) OF ITS RULES, THE COUNCIL SET ASIDE THE
ASSISTANT SECRETARY'S DECISION AND REMANDED THE CASE TO HIM FOR
APPROPRIATE ACTION CONSISTENT WITH ITS DECISION.
BASED ON THE COUNCIL'S HOLDING IN THE INSTANT CASE, AND THE RATIONALE
CONTAINED THEREIN, I SHALL ORDER THAT THE COMPLAINT HEREIN BE DISMISSED
IN ITS ENTIRETY.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 63-4826(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
OCTOBER 24, 1975
NATIONAL AERONAUTICS AND SPACE
ADMINISTRATION (NASA),
WASHINGTON, D.C.
AND
LYNDON B. JOHNSON SPACE CENTER
(NASA), HOUSTON, TEXAS
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL UNION 2284,
AFL-CIO
THIS APPEAL AROSE FROM A DECISION OF THE ASSISTANT SECRETARY WHO,
UPON COMPLAINT BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
UNION 2284, AFL-CIO (UNION), AGAINST THE NATIONAL AERONAUTICS AND SPACE
ADMINISTRATION (NASA), WASHINGTON, D.C. (AGENCY), AND THE LYNDON B.
JOHNSON SPACE CENTER (NASA), HOUSTON, TEXAS (ACTIVITY), ALLEGING
VIOLATIONS OF SECTION 19(A)(1) AND (6) OF THE ORDER, FOUND THAT THE
ACTIVITY DID NOT VIOLATE SECTION 19(A)(1) AND (6), AND THAT WHILE THE
AGENCY DID NOT VIOLATE SECTION 19(A)(6) OF THE ORDER, IT DID COMMIT A
19(A)(1) VIOLATION.
THE PERTINENT FACTS IN THE CASE, AS STIPULATED BY THE PARTIES AND
FOUND BY THE ASSISTANT SECRETARY, ARE AS FOLLOWS: /1/ SHORTLY AFTER
APPOINTMENT TO HIS POSITION, THE ASSISTANT ADMINISTRATOR FOR EQUAL
OPPORTUNITY PROGRAMS OF THE AGENCY DECIDED THAT IT WAS NECESSARY TO
VISIT VARIOUS NASA CENTERS, INCLUDING THE ACTIVITY HEREIN CONCERNED, IN
ORDER TO ASSESS THE STATE OF THE AGENCY'S EQUAL EMPLOYMENT OPPORTUNITY
(EEO) PROGRAM.
AT HIS REQUEST, THE ACTIVITY ARRANGED THREE MEETINGS OR INTERVIEWS
BETWEEN THE ASSISTANT ADMINISTRATOR AND VARIOUS EMPLOYEES OR EMPLOYEE
GROUPS WITHOUT REGARD AS TO WHETHER THEY WERE MEMBERS OF BARGAINING
UNITS. THESE MEETINGS OR INTERVIEWS WERE HELD WITH BLACK, SPANISH
SURNAME AND WOMEN EMPLOYEES OF THE ACTIVITY. ALL THE EMPLOYEES WITH
WHOM MEETINGS OR INTERVIEWS WERE ARRANGED WERE IN ONE OF THE BARGAINING
UNITS FOR WHICH THE UNION HAD BEEN ACCORDED EXCLUSIVE RECOGNITION. IN
ADDITION TO THE ABOVE MEETINGS, SEPARATE MEETINGS OR INTERVIEWS WERE
HELD WITH MEMBERS OF COMMUNITY GROUPS AND REPRESENTATIVES OF THE UNION.
NO MANAGEMENT OFFICIAL OF THE ACTIVITY ATTENDED THESE MEETINGS, NOR DID
THE ACTIVITY EXERCISE ANY SUPERVISION OR CONTROL OVER THE ASSISTANT
ADMINISTRATOR. AT THESE MEETINGS, THE ASSISTANT ADMINISTRATOR SOLICITED
THE OPINIONS OF THE EMPLOYEES WITH RESPECT TO THE EEO PROGRAM OF THE
AGENCY AND LISTENED TO THEIR SUGGESTIONS FOR EEO PROGRAM ADDITIONS AND
MODIFICATIONS. NO COMMITMENTS WERE MADE TO THE EMPLOYEES.
UPON LEARNING OF THE SCHEDULED MEETINGS, THE UNION REQUESTED THAT IT
BE ALLOWED TO HAVE AN OBSERVER PRESENT AT EACH OF THE MEETINGS OF
EMPLOYEE GROUPS AND THAT IT BE GRANTED A SEPARATE MEETING WITH THE
ADMINISTRATOR IN ORDER TO GIVE ITS "THOUGHTS" RELATIVE TO THE EEO
PROGRAM. THE ACTIVITY'S PERSONNEL OFFICER, PURSUANT TO DIRECTIONS FROM
THE AGENCY, GRANTED THE UNION'S REQUEST TO MEET SEPARATELY, BUT DENIED
THE SPECIFIC REQUEST FOR UNION PARTICIPATION IN THE MEETINGS WITH THE
EMPLOYEES.
AS A RESULT OF THIS ACTION A COMPLAINT WAS FILED BY THE UNION AGAINST
THE AGENCY AND THE ACTIVITY ALLEGING THAT THEY VIOLATED SECTION 19(A)(1)
AND (6) BY HOLDING "OFFICIAL MEETINGS" WITH SEVERAL GROUPS OF EMPLOYEES
REPRESENTED BY THE UNION WITHOUT GIVING NOTIFICATION TO THEIR EXCLUSIVE
REPRESENTATIVE AND DENYING THE UNION THE RIGHT TO HAVE OBSERVERS PRESENT
AT THESE MEETINGS.
THE ASSISTANT SECRETARY FOUND THAT THE UNION'S RIGHTS AS EXCLUSIVE
REPRESENTATIVE WERE BASED ON THE EXCLUSIVE RECOGNITION ACCORDED IT BY
THE ACTIVITY, AND THAT UNDER THESE CIRCUMSTANCES, THE AGENCY WAS NOT
OBLIGATED TO MEET AND CONFER WITH THE UNION PURSUANT TO SECTION 11(A) OF
THE ORDER. THUS, ACCORDING TO THE ASSISTANT SECRETARY, THE OBLIGATION
TO MEET AND CONFER UNDER THE ORDER APPLIES ONLY IN THE CONTEXT OF THE
EXCLUSIVE BARGAINING RELATIONSHIP BETWEEN THE EXCLUSIVE REPRESENTATIVE
AND THE ACTIVITY OR AGENCY WHICH HAS ACCORDED EXCLUSIVE RECOGNITION.
FURTHER, HE CONCLUDED THAT THE ACTIVITY DID NOT ACT IN DEROGATION OF ITS
BARGAINING OBLIGATIONS UNDER THE ORDER. IN THIS REGARD, HE NOTED THAT
THE EVIDENCE ESTABLISHED THAT NO MANAGEMENT OFFICIAL OF THE ACTIVITY
EXERCISED ANY SUPERVISION OR CONTROL OVER THE AGENCY'S REPRESENTATIVE
WHO CONDUCTED THE MEETINGS IN QUESTION AND, FURTHER, THAT THERE WAS NO
EVIDENCE THAT THE ACTIVITY HAD REFUSED TO MEET AND CONFER WITH THE UNION
CONCERNING ANY MATTERS INVOLVING PERSONNEL POLICIES OR PRACTICES UNDER
ITS CONTROL OR DIRECTION INCLUDING MATTERS RELATING TO THE EEO PROGRAM.
BASED ON THESE CONSIDERATIONS, THE ASSISTANT SECRETARY FOUND THAT THE
ACTIVITY DID NOT VIOLATE SECTION 19(A)(1) AND (6) OF THE ORDER.
MOREOVER, HE FOUND THAT, BECAUSE THE AGENCY WAS NOT A PARTY TO A
BARGAINING RELATIONSHIP WITH THE UNION, IT COULD NOT BE IN VIOLATION OF
SECTION 19(A)(6) OF THE ORDER, BASED UPON THE ASSISTANT ADMINISTRATOR'S
MEETINGS WITH EMPLOYEES.
HOWEVER, THE ASSISTANT SECRETARY CONCLUDED THAT WHILE THE AGENCY
COULD NOT BE FOUND TO BE IN VIOLATION OF SECTION 19(A)(6), THIS
CIRCUMSTANCE DID NOT PRECLUDE HIS FINDINGS OF AN INDEPENDENT 19(A)(1)
VIOLATION BY THE AGENCY WHICH WAS NOT PREMISED ON THE EXISTENCE OF A
BARGAINING RELATIONSHIP BETWEEN THE AGENCY AND THE UNION. THUS, THE
ASSISTANT SECRETARY FOUND THAT THE AGENCY'S ACTION IN CONDUCTING
MEETINGS OR INTERVIEWS WITH UNIT EMPLOYEES IN WHICH THEIR "TERMS AND
CONDITIONS OF EMPLOYMENT" WERE DISCUSSED, WHILE REFUSING THE REQUEST OF
THE EXCLUSIVE REPRESENTATIVE OF THESE EMPLOYEES TO PARTICIPATE IN SUCH
"DISCUSSIONS," RAN COUNTER TO THE PURPOSES AND POLICIES OF THE ORDER
WITH REGARD TO THE OBLIGATION OWED TO AN EXCLUSIVE REPRESENTATIVE AS THE
SPOKESMAN OF THE EMPLOYEES IT REPRESENTS. FURTHER, THE ASSISTANT
SECRETARY FOUND SUCH CONDUCT TO BE INCONSISTENT WITH THE POLICY SET
FORTH IN SECTION 1(A) OF THE ORDER CONCERNING AN AGENCY HEAD'S
OBLIGATION TO ASSURE THAT EMPLOYEES' RIGHTS ARE PROTECTED.
UNDER ALL THE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT THE
AGENCY'S CONDUCT CONSTITUTED AN UNDERMINING OF THE STATUS OF THE
EXCLUSIVE REPRESENTATIVE SELECTED BY THE EMPLOYEES OF THE ACTIVITY.
ACCORDINGLY, HE CONCLUDED THAT THE AGENCY'S CONDUCT RESULTED IN IMPROPER
INTERFERENCE WITH, RESTRAINT, OR COERCION OF UNIT EMPLOYEES IN THE
EXERCISE OF RIGHTS ASSURED BY THE ORDER IN VIOLATION OF SECTION
19(A)(1).
THEREAFTER, THE ASSISTANT SECRETARY'S DECISION WAS APPEALED TO THE
COUNCIL BOTH BY THE AGENCY AND THE UNION. UPON CONSIDERATION OF THE
PETITIONS FOR REVIEW, THE COUNCIL DETERMINED THAT MAJOR POLICY ISSUES
WERE PRESENTED BY THE DECISION OF THE ASSISTANT SECRETARY, /2/ NAMELY:
I. WHETHER AGENCY HEADQUARTERS-LEVEL REPRESENTATIVES CONDUCTING
MEETINGS OR INTERVIEWS
WITH ACTIVITY-LEVEL EMPLOYEES FOR THE PURPOSE OF SOLICITING OPINIONS
WITH RESPECT TO SUCH
MATTERS AS THE EEO PROGRAM OF THE AGENCY ARE REQUIRED BY THE ORDER TO
PERMIT THE EXCLUSIVE
REPRESENTATIVE OF SUCH EMPLOYEES, UPON REQUEST, TO PARTICIPATE IN
SUCH DISCUSSIONS OR
INTERVIEWS; AND
II. WHETHER THE ACTS AND CONDUCT OF AGENCY MANAGEMENT AT A HIGHER
LEVEL OF AN AGENCY'S
ORGANIZATION MAY PROVIDE THE BASIS FOR FINDING A VIOLATION OF SECTION
19(A) OF THE ORDER BY
LOWER LEVEL MANAGEMENT IN THE SAME AGENCY WHO HAVE A BARGAINING
RELATIONSHIP WITH AN EXCLUSIVE
REPRESENTATIVE.
BRIEFS WERE FILED BY THE AGENCY (ON BEHALF OF THE ACTIVITY, AS WELL
AS ITSELF) AND BY THE UNION. ADDITIONALLY, THE DEPARTMENT OF THE
TREASURY AND THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE WERE
PERMITTED TO FILE BRIEFS AS AMICI CURIAE.
ISSUE I
THE NATURE AND SCOPE OF MANAGEMENT'S OBLIGATION WITH REGARD TO THE
PARTICIPATION OF AN EXCLUSIVE REPRESENTATIVE IN MANAGEMENT'S DISCUSSIONS
OR INTERVIEWS WITH UNIT EMPLOYEES ARE SET OUT IN SECTION 10(E) OF THE
ORDER. THAT IS, AN EXCLUSIVE REPRESENTATIVE--
. . . SHALL BE GIVEN THE OPPORTUNITY TO BE REPRESENTED AT FORMAL
DISCUSSIONS BETWEEN
MANAGEMENT AND EMPLOYEES OR EMPLOYEE REPRESENTATIVES CONCERNING
GRIEVANCES, PERSONNEL POLICIES
AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS
OF EMPLOYEES IN THE UNIT.
THE QUESTION, THEREFORE, AS TO THE RIGHT OF THE EXCLUSIVE
REPRESENTATIVE TO HAVE AN OPPORTUNITY TO PARTICIPATE IN DISCUSSIONS OR
INTERVIEWS BETWEEN AGENCY HEADQUARTERS-LEVEL REPRESENTATIVES CONDUCTING
MEETINGS OR INTERVIEWS WITH ACTIVITY-LEVEL EMPLOYEES FOR THE PURPOSE OF
SOLICITING OPINIONS WITH RESPECT TO SUCH MATTERS AS THE EEO PROGRAM OF
THE AGENCY NECESSARILY TURNS ON WHETHER SUCH DISCUSSIONS OR INTERVIEWS
ARE "FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES . . .
CONCERNING GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER
MATTERS AFFECTING GENERAL WORKING CONDITIONS . . . " IN THE COUNCIL'S
VIEW, THE MEETINGS AT ISSUE IN THE INSTANT CASE WERE NOT "FORMAL
DISCUSSIONS" BETWEEN MANAGEMENT AND EMPLOYEES AS THAT PHRASE IS USED IN
SECTION 10(E). THEREFORE, MANAGEMENT WAS NOT REQUIRED TO GIVE THE
EXCLUSIVE REPRESENTATIVE AN OPPORTUNITY TO PARTICIPATE IN THE MEETINGS
OR INTERVIEWS INVOLVED HEREIN.
THE LANGUAGE OF THE PERTINENT PORTION OF SECTION 10(E) QUOTED ABOVE
MAKES CLEAR THAT IT IS NOT THE INTENT OF THE ORDER TO GRANT TO AN
EXCLUSIVE REPRESENTATIVE A RIGHT TO BE REPRESENTED IN EVERY DISCUSSION
BETWEEN AGENCY MANAGEMENT AND EMPLOYEES. RATHER, SUCH A RIGHT EXISTS
ONLY WHEN THE DISCUSSIONS ARE DETERMINED TO BE FORMAL DISCUSSIONS AND
CONCERN GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS
AFFECTING THE GENERAL WORKING CONDITIONS OF UNIT EMPLOYEES. /3/ IN THE
SITUATION AT ISSUE IN THE INSTANT CASE, AGENCY HEADQUARTERS-LEVEL
REPRESENTATIVES MET WITH ACTIVITY-LEVEL EMPLOYEES FOR THE PURPOSE OF
SOLICITING OPINIONS WITH RESPECT TO THE EEO PROGRAM OF THE AGENCY. MORE
PARTICULARLY, AS STIPULATED BY THE PARTIES, THE ASSISTANT ADMINISTRATOR
MERELY:
. . . SOLICITED THE OPINION OF THE EMPLOYEES WITH RESPECT TO THE EEO
PROGRAM OF THE
. . . AGENCY AND LISTENED TO THEIR SUGGESTIONS FOR EEO PROGRAM
ADDITIONS AND
MODIFICATIONS. NO COMMITMENTS WERE MADE TO THE EMPLOYEES.
FURTHER, THE STIPULATED RECORD CONTAINS NO INDICATION THAT THE
ASSISTANT ADMINISTRATOR ATTEMPTED TO RESOLVE THE ISSUES RAISED AT THE
MEETINGS THROUGH AGREEMENT WITH ASSEMBLED EMPLOYEES, INDIVIDUALLY OR
COLLECTIVELY, NOR DID HE MAKE "COUNTERPROPOSALS" TO THE SUGGESTIONS
OFFERED. THERE IS NO INDICATION THAT THE ASSISTANT ADMINISTRATOR EITHER
EXPRESSLY OR IMPLIEDLY SUGGESTED TO THE EMPLOYEES DURING SUCH
SOLICITATIONS THAT THEIR OPINIONS AND CRITICISMS WOULD GOVERN FUTURE
MODIFICATIONS OF THE AGENCY'S (OR THE ACTIVITY'S) CONDUCT AND/OR
REGULATIONS CONCERNING THE OPERATION OF ITS EEO PROGRAM, OR THAT HE
INDICATED THAT THEIR ANSWERS WOULD HAVE AN EFFECT ON THE EMPLOYEES'
STATUS. SIMILARLY, THERE WAS NO EVIDENCE ADDUCED THAT THE DISCUSSIONS
DEALT WITH SPECIFIC EMPLOYEE GRIEVANCES OR OTHER MATTERS COGNIZABLE
UNDER AN EXISTING AGREEMENT BETWEEN THE ACTIVITY AND THE LOCAL UNION, OR
THAT THE ASSISTANT ADMINISTRATOR WAS GATHERING THE INFORMATION FOR THE
PURPOSE OF USING IT SUBSEQUENTLY TO PERSUADE THE UNION TO ABANDON A
POSITION TAKEN DURING NEGOTIATIONS REGARDING THE OPERATION OF THE EEO
PROGRAM.
IN OUR VIEW, DISCUSSIONS SUCH AS THOSE DESCRIBED HEREIN WERE NOT
"FORMAL DISCUSSIONS CONCERNING GRIEVANCES, PERSONNEL POLICIES AND
PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT." RATHER, THEY WERE A MECHANISM WHEREBY AGENCY
HEADQUARTERS-LEVEL MANAGEMENT SOUGHT TO EVALUATE THE EFFECTIVENESS OF AN
AGENCYWIDE PROGRAM WHICH EXISTED TOTALLY APART FROM THE COLLECTIVE
BARGAINING RELATIONSHIP AT THE LEVEL OF THE EXCLUSIVE RECOGNITION.
INDEED, WITHOUT THE BENEFIT OF SUCH INFORMATION-GATHERING MECHANISMS,
AGENCY MANAGEMENT WOULD BE SERIOUSLY IMPEDED IN EFFECTIVELY CARRYING OUT
ITS RESPONSIBILITY-- OFTEN MANDATED BY STATUTE, AS IN THE INSTANT CASE--
TO CONDUCT PERIODIC EVALUATIONS OF THE EFFECTIVENESS OF AGENCYWIDE
PROGRAMS. (WHILE MECHANISMS OF THIS SORT ARE NOT DISCUSSIONS WHEREIN
MANAGEMENT IS OBLIGATED TO GIVE THE EXCLUSIVE REPRESENTATIVE THE
OPPORTUNITY TO BE REPRESENTED, MANAGEMENT MAY WELL CONSIDER IT DESIRABLE
TO GIVE THE EXCLUSIVE REPRESENTATIVE THE OPPORTUNITY TO BE PRESENT AT
MEETINGS SUCH AS THOSE CONDUCTED BY THE AGENCY IN THE INSTANT CASE.
CLEARLY SUCH REPRESENTATION IS NOT PROHIBITED BY THE ORDER).
WE MUST EMPHASIZE THAT OUR VIEWS, AS EXPRESSED ABOVE, PERTAIN ONLY TO
INFORMATION-GATHERING DEVICES SUCH AS THE MEETINGS INVOLVED IN THIS
CASE. THAT IS, THEY APPLY ONLY IN CIRCUMSTANCES SUCH AS THOSE MENTIONED
ABOVE WHERE MANAGEMENT DOES NOT, IN THE COURSE OF INFORMATION GATHERING:
SEEK TO MAKE COMMITMENTS OR COUNTERPROPOSALS REGARDING EMPLOYEE
OPINIONS OR COMPLAINTS SOLICITED BY MEANS OF SUCH DEVICES; INDICATE
THAT THE EMPLOYEES' COMMENTS ON SUCH MATTERS MIGHT HAVE AN EFFECT ON THE
EMPLOYEES' STATUS; DEAL WITH SPECIFIC EMPLOYEE GRIEVANCES OR OTHER
MATTERS COGNIZABLE UNDER AN EXISTING AGREEMENT; OR GATHER INFORMATION
REGARDING EMPLOYEE SENTIMENTS FOR THE PURPOSE OF USING IT SUBSEQUENTLY
TO PERSUADE THE UNION TO ABANDON A POSITION TAKEN DURING NEGOTIATIONS
REGARDING THE PERSONNEL POLICIES OR PRACTICES CONCERNED.
TURNING TO THE REASONING OF THE ASSISTANT SECRETARY, HIS FINDING OF A
VIOLATION IN THE INSTANT CASE WAS BASED ON THE CONCLUSION THAT THE
AGENCY'S CONDUCT UNDERMINED THE STATUS OF THE EXCLUSIVE REPRESENTATIVE
SELECTED BY THE EMPLOYEES AND THAT SUCH CONDUCT RESULTED IN IMPROPER
INTERFERENCE WITH, RESTRAINT, OR COERCION OF UNIT EMPLOYEES BY THE
AGENCY IN THE EXERCISE OF THEIR RIGHTS ASSURED UNDER THE ORDER IN
VIOLATION OF SECTION 19(A)(1). IF THE COUNCIL WERE TO SUSTAIN THE
ASSISTANT SECRETARY'S CONCLUSIONS IN THIS REGARD, WE WOULD, IN EFFECT,
BE CONSTRUING THE ORDER SO AS TO FIND THAT ANY MEETING BETWEEN AGENCY
MANAGEMENT AND UNIT EMPLOYEES WHEREIN DISCUSSIONS OF PERSONNEL POLICIES
AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS
TOOK PLACE WOULD BE A PER SE VIOLATION OF THE ORDER, REGARDLESS OF THE
CIRCUMSTANCES INVOLVED, THE CONTENT OF THE DISCUSSION, OR THE ACTUAL
CONDUCT OF AGENCY MANAGEMENT. WE DO NOT BELIEVE THAT THE ORDER REQUIRES
SUCH A RESULT. AS STATED ABOVE, THE CRITICAL ISSUE WAS THE RIGHT OF THE
EXCLUSIVE REPRESENTATIVE TO BE REPRESENTED AT THE MEETING PURSUANT TO
THE PROVISIONS OF SECTION 10(E). SINCE, AS WE HAVE CONCLUDED, THE UNION
HAD NO RIGHT TO BE REPRESENTED AT THE MEETING, THE UNION'S STATUS AS
BARGAINING REPRESENTATIVE COULD NOT BE UNDERMINED BY DENYING ITS REQUEST
TO PARTICIPATE AT SUCH MEETINGS. /4/
WE CONCLUDE, THEREFORE, AS TO ISSUE I, THAT AGENCY HEADQUARTERS-LEVEL
REPRESENTATIVES CONDUCTING MEETINGS OR INTERVIEWS WITH ACTIVITY-LEVEL
EMPLOYEES MERELY FOR THE PURPOSE OF SOLICITING OPINIONS WITH RESPECT TO
SUCH MATTERS AS THE EEO PROGRAM OF THE AGENCY ARE NOT REQUIRED BY THE
ORDER TO PERMIT THE EXCLUSIVE REPRESENTATIVE OF SUCH EMPLOYEES, EITHER
ON THE AGENCY'S OWN INITIATIVE OR UPON REQUEST, TO PARTICIPATE IN SUCH
DISCUSSIONS OR INTERVIEWS. MORE PARTICULARLY IN THIS CASE, WE FIND THAT
THE CONDUCT OF THE AGENCY IN EVALUATING THE EFFECTIVENESS OF AN
AGENCYWIDE PROGRAM WHICH EXISTED TOTALLY APART FROM THE COLLECTIVE
BARGAINING RELATIONSHIP DID NOT VIOLATE SECTION 19(A)(1) OF THE ORDER.
/5/
ISSUE II
HAVING CONCLUDED ABOVE THAT THE ACTS AND CONDUCT OF AGENCY MANAGEMENT
WERE NOT VIOLATIVE OF THE ORDER, IT IS UNNECESSARY FOR THE RESOLUTION OF
THIS CASE TO DETERMINE WHETHER ACTS AND CONDUCT OF AGENCY MANAGEMENT AT
A HIGHER LEVEL OF AN AGENCY'S ORGANIZATION (THE ASSISTANT ADMINISTRATOR
IN THIS CASE), IF VIOLATIVE OF THE ORDER, WOULD HAVE BEEN A BASIS FOR
FINDING A VIOLATION OF SECTION 19(A) OF THE ORDER BY LOWER-LEVEL
MANAGEMENT WHO HAD A BARGAINING RELATIONSHIP WITH THE UNION.
ACCORDINGLY, WE DO NOT PASS UPON THAT ISSUE.
FOR THE FOREGOING REASONS, WE FIND THAT THE ASSISTANT SECRETARY'S
DECISION THAT THE AGENCY VIOLATED SECTION 19(A)(1) IS INCONSISTENT WITH
THE PURPOSES OF THE ORDER. ACCORDINGLY, PURSUANT TO SECTION 2411.17(D)
OF THE COUNCIL'S RULES OF PROCEDURE, WE SET ASIDE THE ASSISTANT
SECRETARY'S DECISION AND REMAND THE CASE TO HIM FOR APPROPRIATE ACTION
CONSISTENT WITH OUR DECISION.
BY THE COUNCIL.
ISSUED: SEPTEMBER 26, 1975
/1/ THE CASE WAS TRANSFERRED TO THE ASSISTANT SECRETARY PURSUANT TO
SECTION 206.5(A) OF HIS REGULATIONS AFTER THE PARTIES SUBMITTED A
STIPULATION OF FACTS AND EXHIBITS TO THE ASSISTANT REGIONAL DIRECTOR.
/2/ THE COUNCIL EARLIER APPROVED THE AGENCY'S REQUEST FOR A STAY OF
THE ASSISTANT SECRETARY'S DECISION.
/3/ SEE, FOR EXAMPLE, DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU,
TEXAS AIR NATIONAL GUARD, A/SLMR NO. 336, FLRC NO. 74A-11 (JUNE 18,
1974), REPORT NO. 54, AND INTERNAL REVENUE SERVICE, WASHINGTON, D.C.,
ASSISTANT SECRETARY CASE NO. 22-4056(CA), FLRC NO. 74A-23 (OCTOBER 22,
1974), REPORT NO. 58, WHEREIN THE COUNCIL DENIED REVIEW OF THE ASSISTANT
SECRETARY'S DETERMINATIONS THAT CERTAIN DISCUSSIONS BETWEEN MANAGEMENT
AND EMPLOYEES WERE NOT "FORMAL DISCUSSIONS" WITHIN THE MEANING OF
SECTION 10(E) OF THE ORDER.
/4/ THE RIGHT OF THE UNION TO BE REPRESENTED AT A MEETING WITH
EMPLOYEES MUST, OF COURSE, BE DISTINGUISHED FROM THE RIGHT OF EMPLOYEES
TO UNION REPRESENTATION UNDER CERTAIN CIRCUMSTANCES. THE COUNCIL IS
CURRENTLY CONSIDERING, PURSUANT TO SECTION 4(B) OF THE ORDER AND SECTION
2410.3 OF ITS RULES, AS A MAJOR POLICY ISSUE WHICH HAS GENERAL
APPLICATION TO THE FEDERAL LABOR-MANAGEMENT RELATIONS PROGRAM, THE
FOLLOWING QUESTION:
DOES AN EMPLOYEE IN A UNIT OF EXCLUSIVE RECOGNITION HAVE A PROTECTED
RIGHT UNDER THE ORDER
TO ASSISTANCE (POSSIBLY INCLUDING PERSONNEL REPRESENTATION) BY THE
EXCLUSIVE REPRESENTATIVE
WHEN HE IS SUMMONED TO A MEETING OR INTERVIEW WITH AGENCY MANAGEMENT,
AND, IF SO, UNDER WHAT
CIRCUMSTANCES MAY SUCH A RIGHT BE EXERCISED?
/5/ AS WE HAVE CONCLUDED THAT THE ACTS AND CONDUCT AT ISSUE DO NOT
VIOLATE THE ORDER, IT IS UNNECESSARY TO PASS UPON THE ASSISTANT
SECRETARY'S FINDING THAT:
. . . THE RESPONDENT AGENCY, WHICH WAS NOT A PARTY TO A BARGAINING
RELATIONSHIP WITH THE
(UNION), COULD NOT BE IN VIOLATION OF SECTION 19(A)(6) OF THE ORDER
BASED ON DR. MCCONNEL'S
MEETINGS WITH SUCH EMPLOYEES.
5 A/SLMR 565; P. 625; CASE NO. 40-5951(RO); SEPTEMBER 30, 1975.
INTERNAL REVENUE SERVICE
OFFICE OF THE REGIONAL COMMISSIONER,
SOUTHEAST REGION
A/SLMR NO. 565
THIS CASE AROSE WHEN THE NATIONAL TREASURY EMPLOYEES UNION (NTEU),
FILED A REPRESENTATION PETITION SEEKING AN ELECTION IN A UNIT OF ALL
PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE ACTIVITY. THE
ACTIVITY AND THE NTEU AGREED THAT THE CLAIMED UNIT WAS APPROPRIATE, AND
THAT EMPLOYEES IN SOME 21 JOB CLASSIFICATIONS SHOULD BE EXCLUDED FROM
THE UNIT BECAUSE SUCH EMPLOYEES WERE MANAGEMENT OFFICIALS, CONFIDENTIAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY OR SUPERVISORS. NOTWITHSTANDING THE AGREEMENT
OF THE PARTIES, THE ACTING ASSISTANT REGIONAL DIRECTOR ISSUED A NOTICE
OF HEARING IN THE MATTER BECAUSE, IN HIS VIEW, CERTAIN OF THE EXCLUDED
CLASSIFICATIONS RAISED POLICY QUESTIONS UNDER THE ORDER WHICH COULD BEST
BE RESOLVED ON THE BASIS OF RECORD EVIDENCE.
THE ASSISTANT SECRETARY CONCLUDED THAT A REGION-WIDE UNIT OF ALL
PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE ACTIVITY WAS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. IN THIS REGARD,
HE NOTED THAT SIMILAR REGIONAL UNITS HAD BEEN CERTIFIED IN OTHER REGIONS
OF THE INTERNAL REVENUE SERVICE, AND THAT THE PARTIES AGREED THAT THE
CLAIMED UNIT WAS APPROPRIATE.
AS TO THE EXCLUSIONS SOUGHT BY THE PARTIES, THE ASSISTANT SECRETARY
FOUND THAT THE EMPLOYEES IN SEVEN JOB CLASSIFICATIONS SHOULD BE INCLUDED
IN THE APPROPRIATE UNIT AS THEY WERE NOT MANAGEMENT OFFICIALS BUT HIGHLY
SKILLED PROFESSIONALS WHO RENDERED RESOURCE INFORMATION AND/OR
RECOMMENDATIONS RATHER THAN BEING ACTIVE PARTICIPANTS IN THE ULTIMATE
DETERMINATION AS TO WHAT POLICY, IN FACT, WILL BE.
THE ASSISTANT SECRETARY FOUND THAT THE EMPLOYEES IN THE REMAINING JOB
CLASSIFICATIONS SHOULD BE EXCLUDED FROM THE APPROPRIATE UNIT BECAUSE
THEY WERE MANAGEMENT OFFICIALS, CONFIDENTIAL EMPLOYEES, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY OR SUPERVISORS.
IN VIEW OF THE ASSISTANT SECRETARY'S ELIGIBILITY FINDINGS, HE
DIRECTED THE APPROPRIATE AREA DIRECTOR TO REEVALUATE THE SHOWING OF
INTEREST BEFORE PROCEEDING TO AN ELECTION.
INTERNAL REVENUE SERVICE,
OFFICE OF THE REGIONAL COMMISSIONER,
SOUTHEAST REGION
AND
NATIONAL TREASURY EMPLOYEES UNION
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER LEONARD L.
GARAFALO. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE
FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE ACTIVITY'S BRIEF,
THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, NATIONAL TREASURY EMPLOYEES UNION, HEREIN CALLED
NTEU, SEEKS AN ELECTION IN A UNIT OF ALL PROFESSIONAL AND
NONPROFESSIONAL EMPLOYEES OF THE INTERNAL REVENUE SERVICE, OFFICE OF THE
REGIONAL COMMISSIONER, SOUTHEAST REGION, EXCLUDING MANAGEMENT OFFICIALS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, GUARDS, AND SUPERVISORS AS DEFINED IN EXECUTIVE ORDER
11491, AS AMENDED. /1/
THE RECORD INDICATES THAT THE ACTIVITY AND THE NTEU AGREED THAT THE
CLAIMED UNIT IS APPROPRIATE. MOREOVER, BOTH PARTIES AGREED THAT THE 21
CLASSIFICATIONS, DISCUSSED BELOW, ARE INELIGIBLE FOR INCLUSION IN THE
UNIT SOUGHT BECAUSE THE EMPLOYEES IN SUCH CLASSIFICATIONS ARE MANAGEMENT
OFFICIALS, CONFIDENTIAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY OR SUPERVISORS.
NOTWITHSTANDING THE AGREEMENT OF THE PARTIES, THE ACTING ASSISTANT
REGIONAL DIRECTOR ISSUED A NOTICE OF HEARING IN THIS MATTER BECAUSE, IN
HIS VIEW, CERTAIN OF THE EXCLUDED CLASSIFICATIONS RAISED POLICY
QUESTIONS UNDER THE ORDER WHICH COULD BEST BE RESOLVED ON THE BASIS OF
RECORD EVIDENCE.
THE UNIT
THE SOUTHEAST REGIONAL OFFICE OF THE REGIONAL COMMISSIONER OF THE
INTERNAL REVENUE SERVICE IS ONE OF SEVEN SIMILAR REGIONAL OFFICES
LOCATED THROUGHOUT THE COUNTRY. THE BASIC FUNCTION AND MISSION OF A
REGIONAL OFFICE IS TO PROVIDE A LEVEL OF APPEAL OF TAX DECISIONS FROM
WITHIN ITS DISTRICTS AND AN INTERMEDIARY LEVEL BETWEEN THE TAX COURT AND
THE DISTRICT AUDIT FUNCTION. IT ALSO PROVIDES STAFF WORK AND DEVELOPS
PROGRAMS AND POLICIES FOR THE GEOGRAPHICAL AREA OVER WHICH IT HAS
JURISDICTION. WITH MINOR EXCEPTION, ALL SEVEN REGIONAL OFFICES HAVE THE
SAME ADMINISTRATIVE ORGANIZATIONS AND THE IDENTICAL JOB CLASSIFICATIONS.
THE RECORD INDICATES THAT THE ASSISTANT SECRETARY HAS ISSUED
CERTIFICATIONS OF REPRESENTATIVE FOR FIVE OF THE OTHER INTERNAL REVENUE
SERVICE REGIONS, INCLUDING THE WESTERN, CENTRAL, MID-ATLANTIC, SOUTHWEST
AND MIDWEST REGIONS.
BASED ON THE FOREGOING, AND NOTING PARTICULARLY THE AGREEMENT OF THE
PARTIES WITH RESPECT TO THE APPROPRIATENESS OF THE CLAIMED UNIT AND THE
FACT THAT SIMILAR REGIONAL UNITS HAVE BEEN CERTIFIED, I FIND THAT A
REGION-WIDE UNIT OF PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES, AS
SOUGHT HEREIN BY THE NTEU, IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION AND WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS. ACCORDINGLY, I SHALL DIRECT AN ELECTION IN THE PETITIONED
FOR UNIT.
ELIGIBILITY ISSUES
SENIOR REGIONAL ANALYST, (PROGRAM) GS-345-14, AND REGIONAL ANALYST
(PROGRAM) GS-345-13 /2/
THE RECORD REVEALS THAT THERE ARE THREE GS-14 SENIOR REGIONAL
ANALYSTS AND EIGHT GS-23 REGIONAL ANALYSTS INVOLVED HEREIN. THE SENIOR
REGIONAL ANALYSTS ARE ASSIGNED TO THE REGIONAL HEADQUARTERS AND THE
ANALYSTS ARE ASSIGNED TO EACH OF THE SEVEN DISTRICT OFFICES; TWO
REGIONAL ANALYSTS ARE ASSIGNED TO ONE OF THE DISTRICT OFFICES. THE
RECORD INDICATES THAT THE WORK PERFORMED BY THE SUBJECT CLASSIFICATIONS
IS BASICALLY THE SAME, WITH THE ONLY DISTINCTION BEING THAT THE GS-14
SENIOR REGIONAL ANALYSTS ARE ASSIGNED THE MORE DIFFICULT AND COMPLEX
PROBLEMS. THE PARTIES ASSERT THAT THESE EMPLOYEES ARE MANAGEMENT
OFFICIALS AND SHOULD BE EXCLUDED FROM THE UNIT.
THE SENIOR REGIONAL ANALYSTS AND REGIONAL ANALYSTS REPORT DIRECTLY TO
THE ASSISTANT REGIONAL COMMISSIONER FOR ACCOUNTS, COLLECTION AND
TAXPAYER SERVICE WHO TESTIFIED THAT HE EXERCISES LITTLE OR NO ACTUAL
SUPERVISION OVER THESE EMPLOYEES. ESSENTIALLY, THE SENIOR REGIONAL
ANALYSTS AND THE REGIONAL ANALYSTS ARE ENGAGED IN THE EVALUATION OF BOTH
OPERATIONAL PROGRAMS AND THE PERFORMANCE OF MANAGEMENT OFFICIALS. IN
THE PERFORMANCE OF THESE DUTIES, THEY IDENTIFY OPERATIONAL OR
PERFORMANCE PROBLEMS AND EITHER INITIATE CORRECTIVE ACTION OR RECOMMEND
SOLUTIONS. AS A CONSEQUENCE OF ACTIONS TAKEN BY THESE EMPLOYEES,
CHANGES MAY RESULT IN POLICIES WITH RESPECT TO PERSONNEL, BUDGET,
MANPOWER AND OPERATIONS WITHIN THE REGION. THE RECORD REVEALS THAT, IN
MOST INSTANCES, EMPLOYEES IN THE SUBJECT CLASSIFICATIONS DEAL DIRECTLY
WITH THE VARIOUS MANAGERS ON A "ONE-TO-ONE" BASIS THROUGH ORAL
COMMUNICATION, AND THAT THEIR RECOMMENDATIONS ARE PUT INTO EFFECT
WITHOUT ANY REVIEW OR APPROVAL. THE MORE COMPLEX PROBLEMS WITH WHICH
THEY ARE INVOLVED ARE SUBJECT TO A WRITTEN REPORT CONTAINING
RECOMMENDATIONS SUBMITTED TO THE ASSISTANT REGIONAL COMMISSIONER.
HOWEVER, THE ASSISTANT REGIONAL COMMISSIONER STATED THAT THEIR
RECOMMENDATIONS ARE ACCEPTED WITHOUT MODIFICATION IN AT LEAST 90 PERCENT
OF THE CASES, AND HIS APPROVAL IS, IN THE OVERWHELMING NUMBER OF CASES,
A MERE FORMALITY.
BASED ON THE FOREGOING, I FIND THAT THE EMPLOYEES CLASSIFIED AS
SENIOR REGIONAL ANALYST (PROGRAM) GS-345-14 AND REGIONAL ANALYST
(PROGRAM) GS-345-13, ARE MANAGEMENT OFFICIALS WITHIN THE MEANING OF THE
EXECUTIVE ORDER, AND, THEREFORE, SHOULD BE EXCLUDED FROM THE UNIT FOUND
APPROPRIATE. THUS, THE EVIDENCE ESTABLISHES THAT SUCH EMPLOYEES
EFFECTIVELY INFLUENCE THE MAKING OF POLICY WITHIN THE REGION WITH
RESPECT TO PERSONNEL, PROCEDURES OR PROGRAMS. MOREOVER, IT IS CLEAR
THAT THE ROLE PLAYED BY SUCH EMPLOYEES GOES BEYOND THAT OF AN EXPERT OR
PROFESSIONAL RENDERING RESOURCE INFORMATION, BUT, RATHER, CONSISTS OF
ACTIVE PARTICIPATION IN THE ULTIMATE DETERMINATION AS TO WHAT POLICY, IN
FACT, WILL BE. /3/
REGIONAL AUDIT HEAD ANALYST, GS-512-14, AUDIT DIVISION; SENIOR
REGIONAL ANALYST, GS-512-14, AUDIT DIVISION, REGIONAL ANALYST,
GS-512-13, AUDIT DIVISION; AND SENIOR REGIONAL ANALYST AUDIT,
GS-526-12, AUDIT DIVISION /4/
THERE ARE A TOTAL OF 17 EMPLOYEES CURRENTLY EMPLOYED IN THE
ABOVENAMED JOB CLASSIFICATIONS. THE PARTIES ASSERT THAT THESE EMPLOYEES
ARE MANAGEMENT OFFICIALS AND SHOULD BE EXCLUDED FROM THE UNIT. WITH THE
EXCEPTION OF THE REGIONAL AUDIT HEAD ANALYST, THE ONLY DISTINCTION IN
DUTIES BETWEEN THESE JOB CLASSIFICATIONS IS THE COMPLEXITY OF THE
PROBLEMS HANDLED. ESSENTIALLY, ALL OF THESE EMPLOYEES ARE ENGAGED IN
THE ALLOCATION OF ECONOMIC RESOURCES TO THE VARIOUS REGIONAL COMPONENTS,
MONITORING THE PROGRAMS WHICH UTILIZE THESE RESOURCES TO INSURE THEIR
EFFECTIVE UTILIZATION, AND GATHERING DATA UPON WHICH TO MAKE
RECOMMENDATIONS TO MAKE THE PROGRAMS MORE EFFECTIVE. THE RECORD REVEALS
THAT THEY WORK CLOSELY WITH THE PROGRAM MANAGERS IN DECIDING HOW BEST TO
ACCOMPLISH THE MISSION OF EACH ORGANIZATIONAL COMPONENT AND, IN THIS
REGARD, THEY ALSO MONITOR AND EVALUATE THE OPERATIONAL SYSTEMS. THE
RECORD INDICATED THAT THE RECOMMENDATIONS MADE BY THESE ANALYSTS ARE
ONLY EFFECTUATED AFTER BEING REVIEWED BY HIGHER LEVEL MANAGEMENT
OFFICIALS.
THE THREE EMPLOYEES CURRENTLY CLASSIFIED AS REGIONAL AUDIT HEAD
ANALYSTS ALSO ARE CONSIDERED "CLUSTER LEADERS" AND EACH OF THEM
SUPERVISES UP TO FIVE EMPLOYEES, INCLUDING TWO CLERICALS. THEY ARE
RESPONSIBLE FOR THE EMPLOYEES UNDER THEIR SUPERVISION, AND, IN THIS
CONNECTION, THEY APPROVE LEAVE, EVALUATE THE PERFORMANCE OF THEIR
SUBORDINATES, AND CAN EFFECTIVELY RECOMMEND DISCIPLINARY ACTIONS.
BASED ON THE FOREGOING, I FIND THAT NONE OF THE EMPLOYEES IN THE
SUBJECT CLASSIFICATIONS ARE MANAGEMENT OFFICIALS. THUS, WHILE THESE
EMPLOYEES ARE HIGHLY SKILLED PROFESSIONALS WHO, IN PERFORMING THEIR
DUTIES, NECESSARILY EXERCISE DISCRETION AND INDEPENDENT JUDGMENT, THE
EVIDENCE ESTABLISHES THAT THEIR ROLE IS ESSENTIALLY THAT OF SKILLED
PROFESSIONALS RENDERING RESOURCE INFORMATION OR RECOMMENDATIONS, RATHER
THAN ACTIVELY PARTICIPATING IN THE ULTIMATE DETERMINATION AS TO WHAT THE
ULTIMATE POLICY, IN FACT, WILL BE. ACCORDINGLY, I FIND THAT EMPLOYEES
CLASSIFIED AS SENIOR REGIONAL ANALYST, GS-512-14, REGIONAL ANALYST,
GS-512-13 AND SENIOR REGIONAL ANALYST AUDIT, GS-526-12, SHOULD BE
INCLUDED IN THE UNIT FOUND APPROPRIATE.
HOWEVER, AS THE RECORD INDICATES THAT THE EMPLOYEES IN THE
CLASSIFICATION OF REGIONAL AUDIT HEAD ANALYST, GS-512-14, AUDIT
DIVISION, APPROVE LEAVE, EVALUATE THE PERFORMANCE AND EFFECTIVELY
RECOMMEND DISCIPLINE OF SUBORDINATE EMPLOYEES, I FIND THAT THEY ARE
SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE EXECUTIVE ORDER
AND ON THIS BASIS SHOULD BE EXCLUDED FROM THE UNIT FOUND APPROPRIATE.
/5/
INDUSTRIAL ENGINEER, GS-896-12 AND 13, ADMINISTRATION DIVISION,
MANAGEMENT STAFF BRANCH /6/
THE PARTIES CONTEND THAT THE TWO EMPLOYEES IN THESE CLASSIFICATIONS
ARE MANAGEMENT OFFICIALS AND SHOULD BE EXCLUDED FROM THE UNIT. THE
RECORD DISCLOSES THAT THESE EMPLOYEES ARE ENGAGED IN MONITORING THE
USAGE OF MANPOWER AND MAKE RECOMMENDATIONS AS TO THE ASSIGNMENT OF
PERSONNEL IN ORDER TO HANDLE THE WORK LOAD MORE EFFICIENTLY. THEIR
RECOMMENDATIONS ARE ACCEPTED ONLY AFTER REVIEW BY HIGHER MANAGEMENT
AUTHORITY.
BASED ON THE FOREGOING, I FIND NEITHER OF THE EMPLOYEES IN THE
SUBJECT CLASSIFICATIONS ARE MANAGEMENT OFFICIALS. THUS, WHILE THESE
EMPLOYEES ARE HIGHLY SKILLED PROFESSIONAL EMPLOYEES WHO EXERCISE
DISCRETION AND INDEPENDENT JUDGMENT, THE EVIDENCE ESTABLISHES THAT THEY
DO NOT ACTIVELY PARTICIPATE IN THE ULTIMATE DETERMINATION OF WHAT POLICY
WILL BE; RATHER, THEY ARE SKILLED PROFESSIONALS RENDERING RESOURCE
INFORMATION AND RECOMMENDATIONS. ACCORDINGLY, I FIND THAT THE EMPLOYEES
IN THE INDUSTRIAL ENGINEER, GS-596-12 AND 13 JOB CLASSIFICATIONS SHOULD
BE INCLUDED IN THE UNIT FOUND APPROPRIATE.
SENIOR MANAGEMENT ANALYST, GS-343-12 AND 13, ADMINISTRATION DIVISION;
FACILITIES MANAGEMENT BRANCH AND MANAGEMENT ANALYST, GS-343-11 AND 12,
ADMINISTRATION DIVISION /7/
THE PARTIES ASSERT THAT THE NINE EMPLOYEES IN THESE CLASSIFICATIONS
ARE MANAGEMENT OFFICIALS AND SHOULD BE EXCLUDED FROM THE UNIT. THE
EMPLOYEES IN THE SUBJECT CLASSIFICATIONS ARE ENGAGED IN ESSENTIALLY THE
SAME DUTIES AND FUNCTIONS; THE ONLY DISTINCTION BETWEEN THE JOB
CLASSIFICATIONS IS THE COMPLEXITY OF WORK PERFORMED AND THE AMOUNT OF
PAY. THESE EMPLOYEES COLLECT AND ANALYZE DATA TO DETERMINE THE
EFFICIENT UTILIZATION OF SPACE AND MANPOWER WITHIN THE REGION AND MAKE
RECOMMENDATIONS FOR MORE EFFICIENT UTILIZATION OF SUCH RESOURCES. THEY
ALSO ARE CALLED UPON TO PERFORM SPECIAL PROJECTS, SUCH AS AN ANALYSIS OF
THE EFFICACY OF THE "TOLL FREE" TELEPHONE SERVICE PROVIDED FOR
TAXPAYERS. THE RECORD REFLECTS THAT THEIR RECOMMENDATIONS ARE ACCEPTED
ONLY AFTER REVIEW BY HIGHER MANAGEMENT OFFICIALS.
JAMES TINGLE, A SENIOR MANAGEMENT ANALYST, GS-343-23, SUPERVISES A
GS-5 SECRETARY. THE RECORD DISCLOSES THAT HE APPROVES HER LEAVE,
EVALUATES HER PERFORMANCE, COUNSELS HER WHEN NECESSARY, AND HAS THE
AUTHORITY TO EFFECTIVELY RECOMMEND DISCIPLINARY ACTION.
BASED ON THE FOREGOING, I FIND THAT NONE OF THE EMPLOYEES IN THE
SUBJECT CLASSIFICATIONS ARE MANAGEMENT OFFICIALS WITHIN THE MEANING OF
THE ORDER. ALTHOUGH THE EMPLOYEES IN THESE CLASSIFICATIONS ARE HIGHLY
SKILLED PROFESSIONALS WHO EXERCISE DISCRETION AND INDEPENDENT JUDGMENT,
THE EVIDENCE ESTABLISHES THAT THEY RENDER RESOURCE INFORMATION AND
RECOMMENDATIONS BUT DO NOT ACTIVELY PARTICIPATE IN THE ULTIMATE
DETERMINATION OF WHAT POLICY, IN FACT, WILL BE. ACCORDINGLY, I FIND
THAT THE EMPLOYEES IN THE SENIOR MANAGEMENT ANALYST GS-343-12 AND 13,
AND MANAGEMENT ANALYST, GS-343-11 AND 12 JOB CLASSIFICATIONS SHOULD BE
INCLUDED IN THE UNIT FOUND APPROPRIATE. WITH REGARD TO EMPLOYEE JAMES
TINGLE, BASED ON THE AUTHORITY HE EXERCISES WITH RESPECT TO HIS
SECRETARY, I FIND THAT HE IS A SUPERVISOR WITHIN THE MEANING OF SECTION
2(C) OF THE ORDER AND, ON THIS BASIS, SHOULD BE EXCLUDED FROM THE UNIT
FOUND APPROPRIATE.
BUDGET ANALYST, GS-560-9, 11, AND 12, ADMINISTRATION DIVISION /8/
THE PARTIES CONTEND THAT THE SEVEN EMPLOYEES IN THE SUBJECT
CLASSIFICATIONS ARE MANAGEMENT OFFICIALS AND SHOULD BE EXCLUDED FROM THE
UNIT. THESE EMPLOYEES ARE RESPONSIBLE FOR BUDGET PLANNING, FORMULATION
AND CONTROL. THE ONLY DISTINCTION IN JOB DUTIES BETWEEN THE VARIOUS
GRADES IS THE COMPLEXITY OF MATTERS ASSIGNED TO EACH AND THE DEGREE OF
SUPERVISION REQUIRED. THE RECORD REVEALS THAT THEY MONITOR THE
EXECUTION AND OPERATION OF REGIONAL ACTIVITIES UNDER THE APPROVED
OPERATING FINANCIAL PLAN FOR EACH FISCAL YEAR. THEY KEEP TRACK OF THE
MANNER IN WHICH MONEY IS BEING SPENT BY THE VARIOUS REGIONAL COMPONENTS
AND, ON THE BASIS OF THEIR STUDIES, MAY RECOMMEND THE TRANSFER OF FUNDS
FROM ONE PROGRAM TO ANOTHER. THE HIGHER GRADED EMPLOYEES IN THE SUBJECT
CLASSIFICATIONS ALSO MAY BE INVOLVED IN MANPOWER STUDIES WITH RESPECT TO
THE GRADE STRUCTURES WITHIN THE REGION, AND THEIR RECOMMENDATIONS MAY
RESULT IN CERTAIN POSITIONS BEING UPGRADED, DOWNGRADED, OR ELIMINATED.
THE RECORD REVEALS THAT EMPLOYEES IN THE LOWER GRADES ARE UNDER CLOSE
SUPERVISION AS THEY ARE IN THE PROCESS OF GAINING EXPERIENCE.
BASED ON THE FOREGOING, I FIND THAT NONE OF THE EMPLOYEES IN THE
SUBJECT JOB CLASSIFICATIONS ARE MANAGEMENT OFFICIALS. ALTHOUGH THE
RECORD ESTABLISHES THAT THE INCUMBENTS IN THE ABOVE JOB CLASSIFICATIONS
ARE SKILLED PROFESSIONAL EMPLOYEES WHO, IN PERFORMING THEIR DUTIES,
NECESSARILY EXERCISE DISCRETION AND INDEPENDENT JUDGMENT, I FIND THAT
THEIR ROLE IS RESTRICTED TO THAT OF PROFESSIONALS RENDERING RESOURCE
INFORMATION OR RECOMMENDATIONS, RATHER THAN ACTIVE PARTICIPATION IN THE
ULTIMATE DETERMINATION OF WHAT POLICY, IN FACT, WILL BE. ACCORDINGLY, I
FIND THAT THE EMPLOYEES IN THE BUDGET ANALYST, GS-560-9, 11 AND 12 JOB
CLASSIFICATIONS SHOULD BE INCLUDED IN THE UNIT FOUND APPROPRIATE.
FISCAL ANALYST, GS-501-7, ADMINISTRATION DIVISION, FISCAL MANAGEMENT
BRANCH /9/
THE PARTIES CONTEND THAT THE EMPLOYEE IN THIS CLASSIFICATION IS A
MANAGEMENT OFFICIAL AND SHOULD BE EXCLUDED FROM THE UNIT. THE EMPLOYEE
IN THIS JOB CLASSIFICATION IS, IN EFFECT, THE PAYROLL COORDINATOR FOR
THE REGION. AS SUCH, THE INCUMBENT IS ENGAGED IN THE CORRECTION AND
PREVENTION OF ERRORS WITH RESPECT TO PAYROLL MATTERS, BY COORDINATING
AND EXPLAINING THE PROCEDURES AND PROCESSES OF THE DATA CENTER TO THE
COMPONENT ORGANIZATIONS. IN ADDITION, THE EMPLOYEE IN THE SUBJECT
CLASSIFICATION ENGAGES IN STUDIES TO DETERMINE THE MOST EFFECTIVE AND
EFFICIENT METHODS FOR THE MAINTENANCE AND IMPLEMENTATION OF TIMEKEEPING
AND PAYROLL MATTERS. THESE STUDIES RESULT IN A WRITTEN REPORT TO THE
CHIEF, FISCAL SECTION, WITH RECOMMENDATIONS FOR SPECIFIC CHANGES.
BASED ON THE FOREGOING, I FIND THAT THE EMPLOYEE IN THE SUBJECT JOB
CLASSIFICATION IS NOT A MANAGEMENT OFFICIAL AS, IN MY VIEW, THE EVIDENCE
ESTABLISHES THAT THE INCUMBENT IS A PROFESSIONAL EMPLOYEE RENDERING
RESOURCE INFORMATION AND RECOMMENDATIONS, RATHER THAN ACTIVELY
PARTICIPATING IN THE ULTIMATE DETERMINATION OF WHAT POLICY WILL, IN
FACT, BE. ACCORDINGLY, I FIND THAT THE EMPLOYEE CLASSIFIED AS FISCAL
ANALYST, GS-401-7, SHOULD BE INCLUDED IN THE UNIT FOUND APPROPRIATE.
PERSONNEL ASSISTANT, GS-203-5, ADMINISTRATION DIVISION, PERSONNEL
BRANCH; CLERK TYPIST, GS-301-4, ADMINISTRATION DIVISION, PERSONNEL
BRANCH; ADMINISTRATIVE ASSISTANT, GS-301-8, APPELLATE DIVISION; AND
SECRETARY TRAINING CENTER ADMINISTRATOR, GS-318-5, ADMINISTRATION
DIVISION
THE PARTIES CONTEND THAT THE FOUR EMPLOYEES ASSIGNED TO THE SUBJECT
CLASSIFICATIONS SHOULD BE EXCLUDED FROM THE UNIT ON THE GROUND THAT THEY
ARE CONFIDENTIAL EMPLOYEES.
THE EMPLOYEE CLASSIFIED AS PERSONNEL ASSISTANT, GS-203-5, IS THE
SECRETARY TO THE EMPLOYEE RELATIONS SPECIALIST IN THE REGIONAL OFFICE
PERSONNEL BRANCH. THE RECORD REVEALS THE INCUMBENT IS RESPONSIBLE FOR
RECEIVING INVESTIGATION CONDUCT REPORTS WITH RESPECT TO BARGAINING UNIT
EMPLOYEES AND FOR TYPING AND PREPARING MANAGEMENT'S RESPONSES TO
GRIEVANCES, UNFAIR LABOR PRACTICE ALLEGATIONS AND OTHER LABOR-MANAGEMENT
RELATIONS DOCUMENTS PREPARED BY HER SUPERVISOR.
THE EMPLOYEE CLASSIFIED AS CLERK-TYPIST, GS-301-4, WORKS FOR THE
MANAGEMENT RELATIONS SPECIALIST AND THE EMPLOYEE RELATIONS SPECIALIST.
SHE RECEIVES REPORTS FROM THE REGIONAL INSPECTOR CONCERNING UNIT
EMPLOYEES, TYPES MEMORANDA CONCERNING THESE REPORTS, RECEIVES REPORTS
CONCERNING EMPLOYEE TAX DELINQUENCIES AND PREPARES REPORTS TO THE
NATIONAL OFFICE. FURTHER, THE INCUMBENT ATTENDS MEETINGS WITH HER
SUPERVISOR WHERE MATTERS INVOLVING EMPLOYEE LABOR RELATIONS ARE
DISCUSSED.
THE EMPLOYEE CLASSIFIED AS ADMINISTRATIVE ASSISTANT, GS-301-8, WORKS
FOR THE EXECUTIVE ASSISTANT TO THE ASSISTANT REGIONAL COMMISSIONER
(APPELLATE). THE RECORD REVEALS THAT THE INCUMBENT MONITORS TELEPHONE
CALLS, PROVIDES CLERICAL SUPPORT IN THE PREPARATION OF ALL PERSONNEL
ACTION PAPERS IN THE OFFICE, BRIEFS HER SUPERVISOR ON CERTAIN MATTERS
REGARDING LABOR RELATIONS, TAKES MINUTES OF MEETINGS WHERE LABOR
RELATIONS MATTERS ARE DISCUSSED BY MANAGEMENT, AND PREPARES DOCUMENTS IN
REGARD TO POSITIONS TAKEN BY MANAGEMENT IN LABOR-MANAGEMENT RELATIONS
MATTERS.
THE EMPLOYEE CLASSIFIED AS SECRETARY TO TRAINING CENTER
ADMINISTRATOR, GS-318-5, WORKS FOR THE ADMINISTRATOR OF THE TRAINING
CENTER. THE RECORD REVEALS THAT THE INCUMBENT TAKES NOTES AT STAFF
MEETINGS WHICH OFTEN PERTAIN TO DISCUSSIONS CONCERNING GRIEVANCES AND
UNFAIR LABOR PRACTICE ALLEGATIONS, IS RESPONSIBLE FOR MAINTAINING THE
FILES ON GRIEVANCE AND UNFAIR LABOR PRACTICE CORRESPONDENCE, AND
RECEIVES AND REVIEWS CONDUCT REPORTS CONCERNING BOTH STUDENTS AND
INSTRUCTIONS FROM THE REGIONAL INSPECTOR, AND FORWARDS SUCH REPORTS TO
THE APPROPRIATE AUTHORITY.
BASED ON THE FOREGOING CIRCUMSTANCES, I FIND THAT THE EMPLOYEES IN
THE CLASSIFICATION PERSONNEL ASSISTANT, GS-203-5, CLERK-TYPIST,
GS-301-4, ADMINISTRATIVE ASSISTANT, GS-301-8, AND SECRETARY TO TRAINING
CENTER ADMINISTRATOR, GS-318-5, SERVE IN A CONFIDENTIAL CAPACITY TO AN
INDIVIDUAL OR INDIVIDUALS INVOLVED IN THE FORMULATION AND EFFECTUATION
OF MANAGEMENT POLICIES IN THE FIELD OF LABOR RELATIONS. /10/
ACCORDINGLY, I SHALL EXCLUDE THE EMPLOYEES IN THESE CLASSIFICATIONS FROM
THE UNIT FOUND APPROPRIATE.
ADMINISTRATIVE INTERN, GS-301-5, 7 AND 9, ADMINISTRATION DIVISION
THE PARTIES CONTEND THAT THE EIGHT EMPLOYEES IN THESE CLASSIFICATIONS
ARE EITHER MANAGEMENT OFFICIALS AND/OR CONFIDENTIAL EMPLOYEES AND SHOULD
BE EXCLUDED FROM THE UNIT. THESE EMPLOYEES ARE ALL GIVEN THE SAME JOB
ASSIGNMENTS AND TRAINING, SINCE THEIR GRADE DIFFERENTIATION IS BASED
SOLELY UPON THE GRADE THEY HAD WHEN THEY WERE RECRUITED. DURING THEIR
INTERNSHIP, THE INCUMBENTS ARE ROTATED TO DIFFERENT ORGANIZATIONAL
COMPONENTS WITHIN THE REGION FOR PROJECT ASSIGNMENTS IN PERFORMING THE
FULL RANGE OF MANAGERIAL DUTIES WITHIN THE REGION. IN ADDITION, THEY
ALSO "SHADOW" THE REGIONAL COMMISSIONER FOR A TWO-WEEK PERIOD TO GET AN
OVERALL VIEW OF THE VARIOUS DUTIES HE PERFORMS. THIS INVOLVES, AMONG
OTHER THINGS, ATTENDING MEETINGS CONDUCTED BY THE REGIONAL COMMISSIONER
AND REVIEWING HIS CORRESPONDENCE. WHEN ATTENDING MEETINGS CONDUCTED BY
THE REGIONAL COMMISSIONER, DISCUSSIONS OF CONFIDENTIAL INFORMATION
INVOLVING PERSONNEL ACTIONS, LABOR RELATIONS AND GRIEVANCES OFTEN TAKE
PLACE. THE RECORD SHOWS THAT INTERNS MAY REPLACE AN INDIVIDUAL IN A
PARTICULAR JOB CLASSIFICATION, SUCH AS DISTRICT TRAINING OFFICER OR A
BRANCH CHIEF, FOR A PERIOD OF TIME IN ORDER TO ACQUAINT THE INTERN WITH
THE DUTIES OF THESE POSITIONS. THE RECORD FURTHER SHOWS THAT, AT THE
TIME OF THE HEARING IN THIS MATTER, THE PERSONNEL STAFFING SPECIALIST
POSITION WAS VACANT AND AN INTERN HAD BEEN ASSIGNED THOSE DUTIES. IN
THIS REGARD, THE INTERN INVOLVED WAS ASSIGNED THE RESPONSIBILITY OF
REVIEWING THE MANAGEMENT PROPOSALS IN PREPARATION FOR NEGOTIATING A NEW
MULTI-CENTER AGREEMENT AND TO IDENTIFY THOSE AREAS WITH WHICH MANAGEMENT
SHOULD CONCERN ITSELF.
BASED ON ALL THE FOREGOING CIRCUMSTANCES, I FIND THAT EMPLOYEES IN
THE SUBJECT JOB CLASSIFICATIONS AS PART OF THEIR TRAINING PROGRAM ARE
MADE PRIVY TO CONFIDENTIAL MANAGEMENT DISCUSSIONS CONCERNING LABOR
RELATIONS MATTERS AND THE FORMULATION OF MANAGEMENT POLICY.
ACCORDINGLY, AS, IN EFFECT, THEY SERVE IN A CONFIDENTIAL CAPACITY TO
PERSONS INVOLVED IN THE FORMULATION AND EFFECTUATION OF MANAGEMENT
POLICIES IN THE FIELD OF LABOR RELATIONS, I SHALL EXCLUDE THE EMPLOYEES
IN THE ADMINISTRATIVE INTERN, GS-501-5, 7, 9 CLASSIFICATIONS FROM THE
UNIT FOUND APPROPRIATE.
PERSONNEL MANAGEMENT SPECIALIST, GS-201-7, ADMINISTRATION DIVISION
THE PARTIES ASSERT THAT THE SUBJECT CLASSIFICATION SHOULD BE EXCLUDED
FROM THE UNIT BECAUSE IT INVOLVES FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY. THE RECORD SHOWS THAT THE INCUMBENT PERFORM A
VARIETY OF PERSONNEL FUNCTIONS, INCLUDING POSITION CLASSIFICATION,
POSITION MANAGEMENT, DESK AUDITS, PREPARES POSITION DESCRIPTIONS AND
VACANCY ANNOUNCEMENTS, AND ASSISTS WITH RATING PANELS. THE RECORD
FURTHER SHOWS THAT THIS EMPLOYEE ASSISTS HER SECTION CHIEF IN
LABOR-MANAGEMENT RELATIONS WORK. UNDER THESE CIRCUMSTANCES, I FIND THAT
THE SUBJECT CLASSIFICATION IS ENGAGED IN NON-CLERICAL FEDERAL PERSONNEL
WORK FOR THE ACTIVITY. AS SECTION 10(B)(2) OF THE ORDER SPECIFICALLY
EXCLUDES FROM BARGAINING UNITS EMPLOYEES ENGAGED IN FEDERAL PERSONNEL
WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, I SHALL EXCLUDE THE
PERSONNEL MANAGEMENT SPECIALIST, GS-201-7, FROM THE UNIT FOUND
APPROPRIATE.
EMPLOYMENT DEVELOPMENT SPECIALIST, GS-235-12 AND 13, ADMINISTRATION
DIVISION /11/
THE PARTIES CONTEND THAT THE THREE EMPLOYEES IN THESE CLASSIFICATIONS
ARE ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A CLERICAL CAPACITY,
AND SHOULD BE EXCLUDED FROM THE UNIT. THE RECORD REVEALS THAT THE
EMPLOYEES IN THE SUBJECT CLASSIFICATION AT THE GS-13 LEVEL IS
RESPONSIBLE FOR DEVELOPING AND COORDINATING THE ENTIRE TECHNICAL
TRAINING PROGRAM FOR THE REGION, INCLUDING CLASSROOM AND ON-THE-JOB
TRAINING AND COURSE DEVELOPMENT. IN THIS REGARD, THE INCUMBENT ENSURES
THAT THE PROGRAMS ARE AT THE PROPER LEVELS AND PROVIDES COURSE
GUIDELINES, REVIEWS THE EVALUATION OF TRAINEES, AND OCCASIONALLY
EVALUATES THE TRAINEES.
THE TWO EMPLOYEES IN THE SUBJECT CLASSIFICATION AT THE GS-12 LEVEL
WORK CLOSELY WITH THE EMPLOYEE AT THE GS-13 LEVEL. THEY ARE RESPONSIBLE
FOR THE EVALUATION AND COUNSELING OF TRAINEES, INCLUDING DETERMINING
WHETHER OR NOT TRAINEES SHOULD BE TERMINATED. THEY ALSO SELECT
INSTRUCTORS AND EVALUATE AND COUNSEL THE INSTRUCTION STAFF. IN
ADDITION, THE RECORD REVEALS THAT THEY EACH SUPERVISE AT LEAST ONE
PERMANENT EMPLOYEE AND CERTAIN "WAE'S." IN THIS REGARD, THE RECORD SHOWS
THAT THEY APPROVE LEAVE, EFFECTIVELY RECOMMEND PROMOTIONS, AND
EFFECTIVELY RECOMMEND DISCIPLINARY ACTION.
BASED ON THE FOREGOING, AND NOTING THAT THE INCUMBENT IN THE
EMPLOYMENT DEVELOPMENT SPECIALIST, GS-235-13 JOB CLASSIFICATION IS
RESPONSIBLE FOR PLANNING, DEVELOPING, COORDINATING, AND IMPLEMENTING THE
ACTIVITY'S REGION-WIDE TRAINING PROGRAM, I FIND THAT THE INCUMBENT IS
ENGAGED IN NON-CLERICAL FEDERAL PERSONNEL WORK FOR THE ACTIVITY. /12/
AS SECTION 10(B)(2) OF THE ORDER SPECIFICALLY EXCLUDES EMPLOYEES ENGAGED
IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY FROM
BARGAINING UNITS, I FIND THAT THE EMPLOYMENT DEVELOPMENT SPECIALIST,
GS-235-13, SHOULD BE EXCLUDED FROM THE UNIT FOUND APPROPRIATE.
FURTHER, AS THE RECORD INDICATES THAT THE EMPLOYEES IN THE EMPLOYMENT
DEVELOPMENT SPECIALIST, GS-235-12, CLASSIFICATION EFFECTIVELY RECOMMEND
PROMOTIONS AND DISCIPLINARY ACTION, I FIND THAT THEY ARE SUPERVISORS
WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER AND, ON THIS BASIS,
SHOULD BE EXCLUDED FROM THE UNIT FOUND APPROPRIATE.
HEAD INSTRUCTOR, GS-512-12 AND 13, ADMINISTRATION DIVISION AND HEAD
INSTRUCTOR, GS-1169-12, ADMINISTRATION DIVISION
THE PARTIES CONTEND THAT THE THREE EMPLOYEES IN THE SUBJECT
CLASSIFICATIONS ARE SUPERVISORS AND SHOULD BE EXCLUDED FROM THE UNIT.
THE RECORD REVEALS THAT THE DUTIES OF EMPLOYEES IN THE SUBJECT JOB
CLASSIFICATIONS ARE IDENTICAL EXCEPT THAT THE HEAD INSTRUCTORS,
GS-512-12 AND 13, SUPERVISES AND INSTRUCT REVENUE AGENTS WHILE THE HEAD
INSTRUCTOR, GS-1169-12, SUPERVISES AND INSTRUCTS REVENUE OFFICERS. THE
INCUMBENTS ARE FULL TIME RESIDENT INSTRUCTORS AND, IN THE COURSE OF
THEIR DUTIES, SUPERVISE THE REGIONAL PERSONNEL ASSIGNED TO TEACH IN THE
TRAINING PROGRAM. IN THIS REGARD, THEY ASSIGN WORK TO THE NON-RESIDENT
INSTRUCTORS, EVALUATE THEIR PERFORMANCE, APPROVE LEAVE, AND DISCIPLINE
AND COUNSEL THEM WHEN REQUIRED.
BASED ON THE FOREGOING CIRCUMSTANCES, I FIND THAT EMPLOYEES
CLASSIFIED AS HEAD INSTRUCTOR, GS-512-12 AND 13, HEAD INSTRUCTOR,
GS-1169-12, ARE SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE
ORDER AND SHOULD BE EXCLUDED FROM THE UNIT FOUND APPROPRIATE.
BASED ON ALL OF THE FOREGOING, I FIND THAT THE FOLLOWING EMPLOYEES
CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER 11491, AS AMENDED:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE INTERNAL
REVENUE SERVICE, OFFICES OF
THE REGIONAL COMMISSIONER, SOUTHEAST REGION, EXCLUDING MANAGEMENT
OFFICIALS, CONFIDENTIAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN
A PURELY CLERICAL
CAPACITY, GUARDS, AND SUPERVISORS AS DEFINED IN THE ORDER. /13/
IT IS NOTED THAT THE UNIT FOUND APPROPRIATE INCLUDES PROFESSIONAL
EMPLOYEES. THE ASSISTANT SECRETARY IS PROHIBITED BY SECTION 10(B)(4) OF
THE ORDER FROM INCLUDING PROFESSIONAL EMPLOYEES IN A UNIT WITH EMPLOYEES
WHO ARE NOT PROFESSIONAL, UNLESS A MAJORITY OF THE PROFESSIONAL
EMPLOYEES VOTES FOR INCLUSION IN SUCH A UNIT. ACCORDINGLY, THE DESIRES
OF THE PROFESSIONAL EMPLOYEES AS TO INCLUSION IN A UNIT WITH
NONPROFESSIONAL EMPLOYEES MUST BE ASCERTAINED. I SHALL, THEREFORE,
DIRECT SEPARATE ELECTIONS IN THE FOLLOWING VOTING GROUPS:
VOTING GROUP (A): ALL PROFESSIONAL EMPLOYEES OF THE INTERNAL REVENUE
SERVICE, OFFICE OF THE REGIONAL COMMISSIONER, SOUTHEAST REGION,
EXCLUDING NONPROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, CONFIDENTIAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, GUARDS, AND SUPERVISORS AS DEFINED IN THE
ORDER.
VOTING GROUP (A): ALL PROFESSIONAL EMPLOYEES OF THE INTERNAL REVENUE
SERVICE, OFFICE OF THE REGIONAL COMMISSIONER, SOUTHEAST REGION,
EXCLUDING PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, CONFIDENTIAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, GUARDS, AND SUPERVISORS AS DEFINED IN THE
ORDER.
THE EMPLOYEES IN THE NONPROFESSIONAL VOTING GROUP (B) WILL BE POLLED
WHETHER OR NOT THEY DESIRE TO BE REPRESENTED BY THE NATIONAL TREASURY
EMPLOYEES UNION.
THE EMPLOYEES IN THE PROFESSIONAL VOTING GROUP (A) WILL BE ASKED TWO
QUESTIONS ON THEIR BALLOTS: (1) WHETHER OR NOT THEY WISH TO BE INCLUDED
WITH THE NONPROFESSIONAL EMPLOYEES FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION, AND (2) WHETHER OR NOT THEY WISH TO BE REPRESENTED FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION BY THE NATIONAL TREASURY EMPLOYEES
UNION. IN THE EVENT THAT A MAJORITY OF THE VALID VOTES OF VOTING GROUP
(A) ARE CAST IN FAVOR OF INCLUSION IN THE SAME UNIT AS NONPROFESSIONAL
EMPLOYEES, THE BALLOTS OF VOTING GROUP (A) SHALL BE COMBINED WITH THOSE
OF VOTING GROUP (B).
UNLESS A MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) ARE CAST FOR
INCLUSION IN THE SAME UNIT AS NONPROFESSIONAL EMPLOYEES, THEY WILL BE
TAKEN TO HAVE INDICATED THEIR DESIRE TO CONSTITUTE A SEPARATE UNIT, AND
AN APPROPRIATE CERTIFICATION WILL BE ISSUED INDICATING WHETHER OR NOT
THE NATIONAL TREASURY EMPLOYEES UNION WAS SELECTED BY THE PROFESSIONAL
EMPLOYEE UNIT.
THE UNIT DETERMINATION IN THE SUBJECT CASE IS BASED, IN PART, THEN
UPON THE RESULTS OF THE ELECTION AMONG THE PROFESSIONAL EMPLOYEES.
HOWEVER, I WILL NOW MAKE THE FOLLOWING FINDINGS IN REGARD TO THE
APPROPRIATE UNIT:
1. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES VOTES FOR INCLUSION
IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT THE
FOLLOWING EMPLOYEES WILL CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION WITHIN THE MEANING OF SECTION 10 OF THE ORDER:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE INTERNAL
REVENUE SERVICE, OFFICE OF
THE REGIONAL COMMISSIONER, SOUTHEAST REGION, EXCLUDING MANAGEMENT
OFFICIALS, CONFIDENTIAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN
A PURELY CLERICAL
CAPACITY, GUARDS, AND SUPERVISORS AS DEFINED IN THE ORDER.
2. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES DOES NOT VOTE FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT
THE FOLLOWING TWO GROUPS OF EMPLOYEES WILL CONSTITUTE SEPARATE UNITS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE MEANING
OF SECTION 10 OF THE ORDER:
(A) ALL NONPROFESSIONAL EMPLOYEES OF THE INTERNAL REVENUE SERVICE,
OFFICE OF THE REGIONAL
COMMISSIONER, SOUTHEAST REGION, EXCLUDING PROFESSIONAL EMPLOYEES,
MANAGEMENT OFFICIALS,
CONFIDENTIAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY
CLERICAL CAPACITY, GUARDS, AND SUPERVISORS AS DEFINED IN THE ORDER.
(B) ALL PROFESSIONAL EMPLOYEES OF THE INTERNAL REVENUE SERVICE,
OFFICE OF THE REGIONAL
COMMISSIONER, SOUTHEAST REGION, EXCLUDING NONPROFESSIONAL EMPLOYEES,
MANAGEMENT OFFICIALS,
CONFIDENTIAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY
CLERICAL CAPACITY, GUARDS, AND SUPERVISORS AS DEFINED IN THE ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA DIRECTOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WHO WERE DISCHARGED FOR CAUSE SINCE THE
DESIGNATED PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED
BEFORE THE ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY
DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE
NATIONAL TREASURY EMPLOYEES UNION. /14/
DATED, WASHINGTON, D.C.
SEPTEMBER 30, 1975
/1/ THE UNIT APPEARS AS AMENDED AT THE HEARING.
/2/ AT THE HEARING, THE PARTIES STIPULATED THAT EMPLOYEES IN THESE
CLASSIFICATIONS ARE PROFESSIONALS.
/3/ SEE UNITED STATES DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
REGIONAL OFFICE VI, A/SLMR NO. 266 AND DEPARTMENT OF THE AIR FORCE,
ARNOLD ENGINEERING DEVELOPMENT CENTER, AIR FORCE SYSTEMS COMMAND, ARNOLD
AIR FORCE STATION, TENNESSEE, A/SLMR NO. 135.
/4/ AT THE HEARING, THE PARTIES STIPULATED THAT EMPLOYEES IN THESE
CLASSIFICATIONS ARE PROFESSIONALS.
/5/ SEE UNITED STATES DEPARTMENT OF AGRICULTURE, NORTHERN MARKETING
AND NUTRITION RESEARCH DIVISION, PEORIA, ILLINOIS, A/SLMR NO. 268, FLRC
NO. 72A-4.
/6/ AT THE HEARING, THE PARTIES STIPULATED THAT EMPLOYEES IN THESE
CLASSIFICATIONS ARE PROFESSIONALS.
/7/ AT THE HEARING, THE PARTIES STIPULATED THAT EMPLOYEES IN THESE
CLASSIFICATIONS ARE PROFESSIONALS.
/8/ AT THE HEARING, THE PARTIES STIPULATED THAT EMPLOYEES IN THESE
CLASSIFICATIONS ARE PROFESSIONALS.
/9/ AT THE HEARING, THE PARTIES STIPULATED THAT THE EMPLOYEES IN THIS
CLASSIFICATION IS A PROFESSIONAL.
/10/ SEE PENNSYLVANIA NATIONAL GUARD, DEPARTMENT OF MILITARY AFFAIRS,
A/SLMR NO. 376; THE DEPARTMENT OF THE TREASURY, U.S. SAVINGS BOND
DIVISION, A/SLMR NO. 185; AND VIRGINIA NATIONAL GUARD HEADQUARTERS,
4TH BATTALION, 11TH ARTILLERY, A/SLMR NO. 69.
/11/ AT THE HEARING, THE PARTIES STIPULATED THAT EMPLOYEES IN THESE
CLASSIFICATIONS ARE PROFESSIONALS.
/12/ SEE UNITED STATES DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
REGIONAL OFFICE V, A/SLMR NO. 266.
/13/ AS THE PERSONNEL STAFFING SPECIALIST, GS-212-9, ADMINISTRATION,
POSITION WAS VACANT AT THE TIME OF THE HEARING IN THIS MATTER, I MAKE NO
DETERMINATION AS TO WHETHER THIS CLASSIFICATION SHOULD BE INCLUDED IN OR
EXCLUDED FROM THE UNIT FOUND APPROPRIATE.
/14/ IN VIEW OF THE ABOVE ELIGIBILITY FINDINGS, IT IS NOT CLEAR
WHETHER THE NTEU HAS AN ADEQUATE SHOWING OF INTEREST TO WARRANT AN
ELECTION IN THIS MATTER. ACCORDINGLY, BEFORE PROCEEDING TO AN ELECTION
IN THIS CASE, THE APPROPRIATE AREA DIRECTOR IS DIRECTED TO REEVALUATE
THE SHOWING OF INTEREST. IF HE DETERMINES THAT, BASED ON THE
ELIGIBILITY DETERMINATIONS HEREIN, THE NTEU'S SHOWING OF INTEREST IS
INADEQUATE, ITS PETITION SHOULD BE DISMISSED.
5 A/SLMR 564; P. 620; CASE NO. 71-3140(RO); SEPTEMBER 30, 1975.
DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION (DCASR),
SAN FRANCISCO,
DEFENSE CONTRACT ADMINISTRATION
SERVICES DISTRICT (DCASD),
SEATTLE, WASHINGTON
A/SLMR NO. 564
THIS CASE AROSE AS THE RESULT OF A PETITION FILED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3204, AFL-CIO, SEEKING A UNIT
OF ALL GENERAL SCHEDULE (GS) AND PROFESSIONAL EMPLOYEES EMPLOYED BY THE
DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT, SEATTLE, WASHINGTON,
ASSIGNED TO THE SEATTLE HEADQUARTERS. AT THE HEARING, THE PETITION WAS
AMENDED TO INCLUDE ALL ELIGIBLE EMPLOYEES OF THE SEATTLE DISTRICT. THE
ACTIVITY CONTENDED THAT THE PETITIONED FOR UNIT WAS NOT APPROPRIATE
BECAUSE IT EXCLUDED OTHER EMPLOYEES OF THE REGION WHO SHARE A COMMUNITY
OF INTEREST WITH EMPLOYEES IN THE SOUGHT UNIT AND, FURTHER, THAT THE
PETITIONED FOR UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS OR EFFICIENCY
OF AGENCY OPERATIONS.
UNDER ALL OF THE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT
THE EMPLOYEES IN THE PETITIONED FOR UNIT SHARE A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM OTHER EMPLOYEES OF THE
REGION. THE ASSISTANT SECRETARY NOTED IN THIS REGARD THAT THE
PETITIONED FOR EMPLOYEES SHARE COMMON OVERALL DISTRICT-WIDE SUPERVISION,
PERFORM THEIR DUTIES WITHIN THE ASSIGNED GEOGRAPHICAL AREA OF THE DCASD,
AND DO NOT INTERCHANGE OR HAVE JOB CONTACT WITH ANY OTHER EMPLOYEES OF
THE REGION. MOREOVER, HE NOTED THAT ANY TRANSFER TO OR FROM THE
DISTRICT OFFICE OCCURS ONLY IN SITUATIONS INVOLVING PROMOTION OR
REDUCTION-IN-FORCE PROCEDURES.
FURTHER, NOTING THAT A DETERMINATION WITH RESPECT TO EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS IS DEPENDENT ON A COMPLEX
OF FACTORS, INCLUDING TANGIBLE AND INTANGIBLE BENEFITS TO EMPLOYEES AND
ACTIVITIES RESULTING FROM EMPLOYEE REPRESENTATION BY A LABOR
ORGANIZATION, THE ASSISTANT SECRETARY FOUND THAT THE PETITIONED FOR
DISTRICT-WIDE UNIT WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS. THE ASSISTANT SECRETARY FOUND IN THIS REGARD THAT,
IN FULFILLING HIS RESPONSIBILITY FOR THE DAY-TO-DAY OPERATION OF THE
DCASD, THE DISTRICT COMMANDER HAS THE AUTHORITY TO DISCIPLINE EMPLOYEES,
TO ISSUE OPERATING PROCEDURES PROVIDING THERE IS NO CONFLICT WITH
REGIONAL REGULATIONS, TO CHANGE WORKWEEK HOURS FOR CERTAIN LOCATIONS, TO
REDISTRIBUTE THE WORK FORCE WITHIN HIS DISTRICT AND TO NEGOTIATE ON
LOCAL DISTRICT-WIDE MATTERS WITHIN THE PURVIEW OF HIS DELEGATED
AUTHORITY AS WELL AS ON OTHER DISTRICT-WIDE MATTERS WHICH ARE NOT
PRECLUDED BY HIGHER LEVEL REGULATIONS. FURTHER, HE NOTED THE LACK OF
ANY SPECIFIC COUNTERVAILING EVIDENCE SUBMITTED BY THE ACTIVITY AS TO A
LACK OF EFFECTIVE DEALINGS AND EFFICIENCY OF OPERATIONS IN THOSE REGIONS
OF THE DEFENSE SUPPLY AGENCY WHERE LESS THAN REGION-WIDE UNITS HAVE BEEN
RECOGNIZED OR CERTIFIED AND WHERE THERE CURRENTLY EXIST NEGOTIATED
AGREEMENTS.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT AN ELECTION BE
CONDUCTED IN THE UNIT FOUND APPROPRIATE. AS THE UNIT FOUND APPROPRIATE
DIFFERED SUBSTANTIALLY FROM THE UNIT PETITIONED FOR ORIGINALLY, THE
ASSISTANT SECRETARY DIRECTED THAT THE ELECTION BE HELD UPON COMPLETION
OF THE POSTING OF A NOTICE OF UNIT DETERMINATION TO PERMIT POSSIBLE
INTERVENTION BY LABOR ORGANIZATIONS FOR THE SOLE PURPOSE OF APPEARING ON
THE BALLOT.
DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION SERVICES
REGION (DCASR),
SAN FRANCISCO,
DEFENSE CONTRACT ADMINISTRATION SERVICES
DISTRICT (DCASD),
SEATTLE, WASHINGTON /1/
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3204, AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER PAT HUNT. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, /2/ THE ASSISTANT SECRETARY
FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3204,
AFL-CIO, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF ALL GENERAL
SCHEDULE (GS) AND PROFESSIONAL EMPLOYEES OF THE DEFENSE CONTRACT
ADMINISTRATION SERVICES DISTRICT (DCASD), SEATTLE, WASHINGTON, EXCLUDING
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER. /3/
THE ACTIVITY CONTENDS THAT THE UNIT SOUGHT IS NOT APPROPRIATE BECAUSE
IT EXCLUDES EMPLOYEES WHO SHARE A COMMUNITY OF INTEREST TOGETHER WITH
THE EMPLOYEES IN THE CLAIMED UNIT AND, FURTHER, THAT THE PETITIONED FOR
UNIT WILL NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS. IN THE ACTIVITY'S VIEW, THE ONLY APPROPRIATE UNIT IN THIS
SITUATION IS A UNIT COMPOSED OF ALL ELIGIBLE EMPLOYEES OF THE DEFENSE
CONTRACT ADMINISTRATION SERVICES REGION (DCASR), SAN FRANCISCO.
THE DCASR, SAN FRANCISCO, WITH HEADQUARTERS IN BURLINGAME,
CALIFORNIA, IS ONE OF ELEVEN SUCH REGIONS OF THE DEFENSE SUPPLY AGENCY
(DSA) AND IS A PRIMARY LEVEL FIELD ACTIVITY OF THE DSA. IT PROVIDES
CONTRACT ADMINISTRATION SERVICES AND SUPPORT FOR THE DEPARTMENT OF
DEFENSE, AS WELL AS OTHER FEDERAL AGENCIES, AND ENCOMPASSES A GEOGRAPHIC
AREA WHICH INCLUDES THE STATES OF UTAH, MONTANA, IDAHO, WASHINGTON,
OREGON, ALASKA, HAWAII, AS WELL AS THE MARIANA ISLANDS, MOST OF NEVADA
AND NORTHERN CALIFORNIA. THERE ARE TWO DCASD'S WITHIN DCASR, SAN
FRANCISCO; NAMELY, DCASD, SEATTLE, AND DCASD, SALT LAKE CITY. IN
ADDITION, THE REGION INCLUDES FIVE PLANT SITE DEFENSE CONTRACT
ADMINISTRATION SERVICES OFFICES (DCASO'S) LOCATED AT CONTRACTORS'
OFFICES IN NORTHERN CALIFORNIA, AND AN AREA DCASO IN PORTLAND, OREGON,
WHICH SERVICES AN ASSIGNED GEOGRAPHIC AREA WITHIN THE SEATTLE DISTRICT.
WITH THE EXCEPTION OF THE DCASO IN PORTLAND, WHICH REPORTS THROUGH THE
DCASD IN SEATTLE, ALL DCASO'S AND DCASD'S WITHIN THE REGION REPORT
DIRECTLY TO DCASR HEADQUARTERS. /4/ APPROXIMATELY 1,200 CIVILIAN
EMPLOYEES ARE EMPLOYED THROUGHOUT THE DCASR, SAN FRANCISCO, WITH MOST OF
THE EMPLOYEES LOCATED IN NORTHERN CALIFORNIA.
THE DCASR, SAN FRANCISCO, IS HEADED BY A REGION COMMANDER (A MILITARY
OFFICER) WHOSE OFFICE IS LOCATED AT THE DCASR HEADQUARTERS. DIRECTLY
UNDER THE COMMANDER, AND LOCATED AT THE HEADQUARTERS, ARE A NUMBER OF
OFFICES AND DIRECTORATES WHICH ARE RESPONSIBLE FOR PLANNING AND
MONITORING ALL FACETS OF THE DCASR'S OPERATIONS. IN THIS REGARD, THE
OFFICES ARE CONCERNED PRIMARILY WITH MATTERS REGARDING PLANNING,
ADMINISTRATION, CONTRACT COMPLIANCE PROBLEMS AND SECURITY PROBLEMS AT
DEFENSE PLANTS, WHILE THE DIRECTORATES ARE CONCERNED WITH MATTERS
REGARDING CONTRACT ADMINISTRATION, PRODUCTION AND QUALITY ASSURANCE.
ALSO UNDER THE COMMANDER ARE CERTAIN STAFF ADMINISTRATIVE SEGMENTS,
INCLUDING A CIVILIAN PERSONNEL OFFICER WHICH ADMINISTERS PERSONNEL
POLICIES AND PROCEDURES FOR ALL FUNCTIONS OF THE REGION. ALTHOUGH THERE
ARE NUMEROUS LESS-THAN-REGION WIDE RECOGNIZED OR CERTIFIED UNITS
THROUGHOUT THE OTHER DSA REGIONS, SOME OF WHICH ARE COVERED BY
NEGOTIATED AGREEMENTS, ONLY THE DCASD IN SALT LAKE CITY PRESENTLY IS
REPRESENTED BY AN EXCLUSIVE REPRESENTATIVE IN THE DCASR, SAN FRANCISCO.
/5/
THE DCASD, SEATTLE, HEADQUARTERED IN SEATTLE, WASHINGTON,
GEOGRAPHICALLY ENCOMPASSES THE STATES OF WASHINGTON, OREGON, AND
MONTANA, AND NORTHERN IDAHO. IT IS UNDER THE SUPERVISION OF A DISTRICT
COMMANDER (A MILITARY OFFICER) WHO ALSO EXERCISES LINE AUTHORITY OVER
THE DCASO, PORTLAND, WHICH IS UNDER THE SUPERVISION OF A CHIEF (A
MILITARY OFFICER). ORGANIZATIONALLY, THE DCASD HEADQUARTERS IN SEATTLE,
AND THE DCASO, PORTLAND, ARE SUBDIVIDED TO CORRESPOND WITH THE
DIRECTORATES OF THE REGIONAL HEADQUARTERS. THUS, AT THE DCASD THERE IS
A DIVISION OF CONTRACT ADMINISTRATION, A DIVISION OF PRODUCTION, A
DIVISION OF QUALITY ASSURANCE, AND AN OFFICER OF PLANNING AND
ADMINISTRATION. THE DCASO IS SUBDIVIDED INTO DIVISIONS OF CONTRACT
ADMINISTRATION, PRODUCTION, AND QUALITY ASSURANCE.
THE RECORD REVEALS THAT EMPLOYEES ASSIGNED TO THE DCASD, SEATTLE, AND
THE DCASO, PORTLAND, ARE ASSIGNED TO THE DIVISIONS COMPRISING THOSE
OFFICES, THAT EMPLOYEES ASSIGNED TO A PARTICULAR DIVISION SHARE COMMON
JOB CLASSIFICATIONS WITH OTHER EMPLOYEES IN THE SAME DIVISION, AND THAT
EMPLOYEES SO CLASSIFIED UTILIZE SIMILAR SKILLS AND PERFORM SUBSTANTIALLY
SIMILAR DUTIES. ALL OF THESE EMPLOYEES PERFORM THEIR DUTIES WITHIN THE
GEOGRAPHICAL AREA OF THE DCASD AND SUBMIT DAILY REPORTS OF THEIR
ACTIVITIES TO THEIR FIRST LINE SUPERVISORS, WHO THEN TRANSMIT THESE
REPORTS TO BRANCH OR DIVISION CHIEFS. THE ACTIVITY REPORTS OF THE
DCASO, PORTLAND, ARE TRANSMITTED TO THE DISTRICT COMMANDER AND,
THEREAFTER, THEY ARE INCLUDED WITH ACTIVITY REPORTS PREPARED BY THE
EMPLOYEES OF THE DISTRICT HEADQUARTERS FOR TRANSMITTAL BY THE DISTRICT
COMMANDER TO THE DCASR'S HEADQUARTERS.
THE DISTRICT COMMANDER, AS HEAD OF THE DISTRICT, A SECONDARY LEVEL
FIELD ACTIVITY ESTABLISHED FOR AN ASSIGNED GEOGRAPHIC AREA OF A DCASR,
HAS OPERATIONAL RESPONSIBILITY FOR CONTRACT ADMINISTRATION SERVICES. IN
FULFILLING HIS RESPONSIBILITY FOR THE DAY-TO-DAY OPERATION OF THE
DISTRICT THE DISTRICT COMMANDER CAN ISSUE OPERATING PROCEDURES FOR THE
DCASD WHICH PROVIDE MORE DETAIL, BUT WHICH MAY NOT CONFLICT WITH
REGIONAL REGULATIONS. FURTHER, IT APPEARS FROM THE RECORD THAT THE
DISTRICT COMMANDER HAS THE AUTHORITY WITHIN HIS DISTRICT TO DISCIPLINE
EMPLOYEES (HE CAN SUSPEND AN EMPLOYEE FOR A PERIOD OF LESS THAN 30
DAYS), TO CHANGE THE WORKWEEK HOURS FROM OTHER THAN THE NORMAL TOUR OF
DUTY, TO REDISTRIBUTE THE WORK FORCE WITHIN THE DISTRICT, AND TO
NEGOTIATE LOCAL DISTRICT-WIDE MATTERS WITHIN THE PURVIEW OF HIS
AUTHORITY.
THE RECORD REVEALS THAT APPROXIMATELY 130 NONSUPERVISORY EMPLOYEES
ARE ASSIGNED TO THE DISTRICT HEADQUARTERS AND APPROXIMATELY 50
NONSUPERVISORY EMPLOYEES ARE ASSIGNED TO THE DCASO, PORTLAND. ALSO FIVE
PROFESSIONAL EMPLOYEES AND SIX STUDENT AIDS ARE EMPLOYED IN THE
DISTRICT. AT THE HEARING, THE PARTIES STIPULATED THAT THESE STUDENT
AIDS SHOULD BE EXCLUDED FROM ANY UNIT FOUND APPROPRIATE AND, IN THIS
CONNECTION, THE RECORD REVEALS THAT THE EXCLUSION OF THESE EMPLOYEES IS
WARRANTED IN THAT THEY ARE PART-TIME EMPLOYEES WHO DO NOT HAVE CAREER OR
CAREER-CONDITIONAL STATUS, THEY ARE NOT ENTITLED TO ANY FRINGE BENEFITS,
AND DO NOT HAVE ANY EXPECTANCY OF CONTINUING EMPLOYMENT. /6/
THE RECORD REVEALS THAT ALL OF THE EMPLOYEES OF THE DCASD, SEATTLE,
AND DCASO, PORTLAND, PERFORM THEIR DUTIES PURSUANT TO OVERALL POLICIES
AND PROCEDURES ESTABLISHED BY THE REGIONAL HEADQUARTERS' STAFF AND THAT
EMPLOYEES THROUGHOUT THE REGION ARE SUBJECT TO UNIFORM PERSONNEL
POLICIES. THERE IS NO EVIDENCE OF ANY DEGREE OF INTERCHANGE OR JOB
CONTACT BETWEEN THE EMPLOYEES OF THE DCASD, SEATTLE, AND EMPLOYEES OF
ANY OTHER ORGANIZATIONAL COMPONENTS OF THE REGION OUTSIDE OF
HEADQUARTERS, OR BETWEEN EMPLOYEES OF THE DCASD, SEATTLE, OR THE DCASO,
PORTLAND, AND EMPLOYEES OF THE REGIONAL HEADQUARTERS' STAFF, OTHER THAN
THE DAILY REPORTS INDICATED ABOVE. WHILE THE EVIDENCE ESTABLISHES THAT
THERE IS SOME DEGREE OF TRANSFER OF EMPLOYEES AMONG THE VARIOUS
ORGANIZATIONAL COMPONENTS WITHIN THE REGION, GENERALLY SUCH TRANSFERS
ARE WITHIN THE CONTEXT OF PROMOTION OR REDUCTION-IN-FORCE PROCEDURES.
ALTHOUGH THE RECORD DISCLOSES THAT THE AREA OF CONSIDERATION FOR
PROMOTIONS AND REDUCTION-IN-FORCE FOR ALL EMPLOYEES CLASSIFIED GS-7 AND
ABOVE IS REGIONWIDE, WHEREAS THE AREA OF CONSIDERATION FOR PROMOTIONS
AND REDUCTION-IN-FORCE FOR EMPLOYEES CLASSIFIED GS-6 AND BELOW IS THE
LOCATION OF THE VACANCY, PURSUANT TO AGENCY REGULATIONS, THE SELECTING
OFFICIAL GENERALLY IS THE IMMEDIATE SUPERVISOR. WHILE EMPLOYEES
ASSIGNED TO THE DCASD, SEATTLE, HEADQUARTERS AND THE DCASO, PORTLAND,
WORK OUT OF THESE OFFICES, A SIGNIFICANT NUMBER PERFORM THEIR DUTIES
WHERE CONTRACTS FOR PARTICULAR PRODUCTS OR SERVICES ARE BEING PERFORMED
AND, TO THIS EXTENT, THE WORKING CONDITIONS OF THE EMPLOYEES MAY VARY
FROM ONE ASSIGNMENT TO ANOTHER. ALSO, ALTHOUGH TRAINING PROGRAMS ARE
PREPARED BY THE DCASR HEADQUARTERS' STAFF PERSONNEL, GENERALLY THEY ARE
ADMINISTERED WITHIN THE DISTRICT, OFTEN BY DISTRICT PERSONNEL.
UNDER ALL OF THE FOREGOING CIRCUMSTANCES, I FIND THAT THE EMPLOYEES
IN THE PETITIONED FOR UNIT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST SEPARATE AND DISTINCT FROM OTHER EMPLOYEES OF THE REGION.
PARTICULARLY NOTED IN THIS REGARD ARE THE FACTS THAT THE PETITIONED FOR
EMPLOYEES SHARE COMMON OVERALL DISTRICT-WIDE SUPERVISION, PERFORM THEIR
DUTIES WITHIN THE ASSIGNED GEOGRAPHICAL AREA OF THE DCASD, AND DO NOT
INTERCHANGE OR HAVE JOB CONTACT WITH ANY OTHER EMPLOYEES OF THE REGION.
MOREOVER, ANY TRANSFER TO OR FROM THE DISTRICT OFFICE OCCURS ONLY IN
SITUATIONS INVOLVING PROMOTION OR REDUCTION-IN-FORCE PROCEDURES.
THE ACTIVITY CONTENDS THAT THE CLAIMED UNIT, IF APPROVED, WILL
NEITHER PROMOTE EFFECTIVE DEALINGS NOR THE EFFICIENCY OF AGENCY
OPERATIONS. IN THIS REGARD, THE ACTIVITY TAKES THE IDENTICAL POSITION
AS IT TOOK IN AN EARLIER CASE PERTAINING TO THE DCASD, SALT LAKE CITY,
UTAH, (A/SLMR NO. 461), THAT AS VIRTUALLY ALL MEANINGFUL PERSONNEL
POLICY DECISIONS IN THE DCASR, SAN FRANCISCO, ARE MADE BY THE REGIONAL
COMMANDER, EITHER DIRECTLY OR THROUGH ACTIONS TAKEN UNDER THE AUTHORITY
DELEGATED TO THE DIRECTOR OF CIVILIAN PERSONNEL, IT IS APPARENT THAT THE
AUTHORITY OF THE DISTRICT CHIEF WOULD BE EXTREMELY LIMITED IN TERMS OF
NEGOTIABLE MATTERS IF THE PROPOSED DCASD UNIT WERE APPROVED, AND WOULD
EXCLUDE SUCH BARGAINING AREAS AS PROMOTIONS, GRIEVANCES, DISCIPLINE AND
ARBITRATION.
IN MY VIEW, AND AS DISCUSSED IN DETAIL IN DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION SERVICES REGION, SAN FRANCISCO, A/SLMR
NO. 559, A DETERMINATION OF EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS IS DEPENDENT ON A COMPLEX OF FACTORS, INCLUDING THE TANGIBLE
AND INTANGIBLE BENEFITS TO EMPLOYEES AND ACTIVITIES RESULTING FROM
EMPLOYEE REPRESENTATION BY A LABOR ORGANIZATION WHICH CAN RESULT IN
IMPROVED EFFICIENCY OF AGENCY OPERATIONS DESPITE INCREASED COST FACTORS.
FURTHER, AS DISCUSSED IN A/SLMR NO. 559, IN MY VIEW, A CLAIMED UNIT MAY
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS EVEN
THOUGH IT DOES NOT INCLUDE ALL EMPLOYEES DIRECTLY UNDER THE AREA OR
REGIONAL HEAD, OR THE ACTIVITY OFFICIALS WHO HAVE FINAL INITIATING
AUTHORITY WITH RESPECT TO PERSONNEL, FISCAL AND PROGRAMMATIC MATTERS.
NOR AM I PERSUADED BY THE ACTIVITY'S ARGUMENT THAT THE AUTHORITY OF THE
DISTRICT CHIEF WOULD BE EXTREMELY LIMITED WITH REGARD TO NEGOTIATIONS.
IN THIS REGARD, IT WAS NOTED PARTICULARLY THAT, IN FULFILLING HIS
RESPONSIBILITY FOR THE DAY-TO-DAY OPERATION OF THE DCASD, THE DISTRICT
COMMANDER HAS THE AUTHORITY TO DISCIPLINE EMPLOYEES, TO ISSUE OPERATING
PROCEDURES PROVIDING THERE IS NO CONFLICT WITH REGIONAL REGULATIONS, TO
CHANGE WORKWEEK HOURS FOR CERTAIN LOCATIONS, TO REDISTRIBUTE THE WORK
FORCE WITHIN HIS DISTRICT, AND TO NEGOTIATE ON LOCAL DISTRICT-WIDE
MATTERS WITHIN THE PURVIEW OF HIS DELEGATED AUTHORITY, AS WELL AS ON ANY
OTHER DISTRICT-WIDE MATTERS WHICH ARE NOT PRECLUDED BY HIGHER LEVEL
REGULATIONS. THUS, THE DISTRICT COMMANDER HAS THE AUTHORITY TO
NEGOTIATE AT THE DISTRICT LEVEL WITH RESPECT TO MATTERS WHICH INVOLVE
PERSONNEL PRACTICES AND POLICIES AFFECTING THE CONDITION OF EMPLOYMENT
OF THE DCASD EMPLOYEES IN THE CLAIMED UNIT.
UNDER THESE CIRCUMSTANCES, AND NOTING PARTICULARLY THE ABSENCE OF ANY
SPECIFIC COUNTERVAILING EVIDENCE SUBMITTED BY THE ACTIVITY AS TO A LACK
OF EFFECTIVE DEALINGS AND EFFICIENCY OF OPERATIONS IN THOSE REGIONS OF
THE DSA WERE LESS THAN REGION-WIDE UNITS HAVE BEEN RECOGNIZED OR
CERTIFIED AND WHERE THERE CURRENTLY EXIST NEGOTIATED AGREEMENTS, /7/ I
FIND THAT THE PETITIONED FOR DISTRICT-WIDE UNIT WILL PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. /8/
ACCORDINGLY, I FIND THAT THE FOLLOWING UNIT IS APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE ORDER 11491, AS
AMENDED: /9/
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE DEFENSE
CONTRACT ADMINISTRATION
SERVICES DISTRICT, SEATTLE, WASHINGTON, INCLUDING THE PORTLAND,
OREGON, DEFENSE CONTRACT
ADMINISTRATION SERVICES OFFICE, EXCLUDING EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER
THAN A PURELY CLERICAL CAPACITY, CONFIDENTIAL EMPLOYEES, MANAGEMENT
OFFICIALS, GUARDS, AND
SUPERVISORS AS DEFINED IN THE ORDER.
AS STATED ABOVE, THE UNIT FOUND APPROPRIATE INCLUDES PROFESSIONAL
EMPLOYEES. HOWEVER, THE ASSISTANT SECRETARY IS PROHIBITED BY SECTION
10(B)(4) OF THE ORDER FROM INCLUDING PROFESSIONAL EMPLOYEES IN A UNIT
WITH NONPROFESSIONAL EMPLOYEES UNLESS A MAJORITY OF THE PROFESSIONAL
EMPLOYEES VOTES FOR INCLUSION IN SUCH A UNIT. ACCORDINGLY, THE DESIRES
OF THE PROFESSIONAL EMPLOYEES AS TO INCLUSION IN A UNIT WITH
NONPROFESSIONAL EMPLOYEES MUST BE ASCERTAINED. I SHALL, THEREFORE,
DIRECT THAT SEPARATE ELECTIONS BE CONDUCTED IN THE FOLLOWING VOTING
GROUPS:
VOTING GROUP (A): ALL PROFESSIONAL EMPLOYEES OF THE DEFENSE CONTRACT
ADMINISTRATION SERVICES DISTRICT, SEATTLE, WASHINGTON, INCLUDING THE
PORTLAND, OREGON, DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICE,
EXCLUDING ALL NONPROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, CONFIDENTIAL
EMPLOYEES, MANAGEMENT OFFICIALS, GUARDS, AND SUPERVISORS AS DEFINED IN
THE ORDER.
VOTING GROUP (B): ALL NONPROFESSIONAL EMPLOYEES OF THE DEFENSE
CONTRACT ADMINISTRATION SERVICES DISTRICT, SEATTLE, WASHINGTON,
INCLUDING THE PORTLAND, OREGON, DEFENSE CONTRACT ADMINISTRATION SERVICES
OFFICE, EXCLUDING ALL PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
CONFIDENTIAL EMPLOYEES, MANAGEMENT OFFICIALS, GUARDS, AND SUPERVISORS AS
DEFINED IN THE ORDER.
EMPLOYEES IN THE NONPROFESSIONAL VOTING GROUP (B) WILL BE POLLED
WHETHER OR NOT THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3204, AFL-CIO.
THE EMPLOYEES IN THE PROFESSIONAL VOTING GROUP (A) WILL BE ASKED TWO
QUESTIONS ON THEIR BALLOTS: (1) WHETHER OR NOT THEY WISH TO BE INCLUDED
WITH THE NONPROFESSIONAL EMPLOYEES FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION, AND (2) WHETHER OR NOT THEY WISH TO BE REPRESENTED FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 3204, AFL-CIO. IN THE EVENT THAT A MAJORITY
OF THE VALID VOTES OF VOTING GROUP (A) ARE CAST IN FAVOR OF INCLUSION IN
THE SAME UNIT AS NONPROFESSIONAL EMPLOYEES, THE BALLOTS OF VOTING GROUP
(A) SHALL BE COMBINED WITH THOSE OF VOTING GROUP (B).
UNLESS A MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) ARE CAST FOR
INCLUSION IN THE SAME UNIT AS NONPROFESSIONAL EMPLOYEES, THEY WILL BE
TAKEN TO HAVE INDICATED THEIR DESIRE TO CONSTITUTE A SEPARATE UNIT, AND
AN APPROPRIATE CERTIFICATION WILL BE ISSUED BY THE APPROPRIATE AREA
DIRECTOR INDICATING WHETHER OR NOT THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3204, AFL-CIO, WAS SELECTED BY THE PROFESSIONAL
EMPLOYEES.
THE UNIT DETERMINATION IN THE SUBJECT CASE IS BASED, IN PART, THEN,
UPON THE RESULTS OF THE ELECTION AMONG THE PROFESSIONAL EMPLOYEES.
HOWEVER, I WILL NOW MAKE THE FOLLOWING FINDINGS IN REGARD TO THE
APPROPRIATE UNITS:
(1) IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES DOES NOT VOTE FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT
THE FOLLOWING UNITS ARE APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION WITHIN THE MEANING OF SECTION 10 OF THE ORDER:
(A) ALL PROFESSIONAL EMPLOYEES OF THE DEFENSE CONTRACT ADMINISTRATION
SERVICES DISTRICT, SEATTLE, WASHINGTON, INCLUDING THE PORTLAND, OREGON,
DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICES, EXCLUDING ALL
NONPROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY CLERICAL CAPACITY, CONFIDENTIAL EMPLOYEES,
MANAGEMENT OFFICIALS, GUARDS, AND SUPERVISORS AS DEFINED IN THE ORDER.
(B) ALL NONPROFESSIONAL EMPLOYEES OF THE DEFENSE CONTRACT
ADMINISTRATION SERVICES DISTRICT, SEATTLE, WASHINGTON, INCLUDING THE
PORTLAND, OREGON, DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICE,
EXCLUDING ALL PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, CONFIDENTIAL
EMPLOYEES, MANAGEMENT OFFICIALS, GUARDS, AND SUPERVISORS AS DEFINED IN
THE ORDER.
(2) IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES VOTES FOR INCLUSION
IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THE FOLLOWING
UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE
MEANING OF SECTION 10 OF THE ORDER.
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE DEFENSE
CONTRACT ADMINISTRATION
SERVICES DISTRICT, SEATTLE, WASHINGTON, INCLUDING THE PORTLAND,
OREGON, DEFENSE CONTRACT
ADMINISTRATION SERVICES OFFICE, EXCLUDING EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER
THAN A PURELY CLERICAL CAPACITY, CONFIDENTIAL EMPLOYEES, MANAGEMENT
OFFICIALS, GUARDS, AND
SUPERVISORS AS DEFINED IN THE ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA DIRECTOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THE PERIOD BECAUSE THEY WERE
OUT ILL, OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE MILITARY
SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE
EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO
BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3204, AFL-CIO.
BECAUSE THE ABOVE DIRECTION OF ELECTION IS IN A UNIT SUBSTANTIALLY
DIFFERENT THAN THE UNIT ORIGINALLY PETITIONED FOR BY THE AFGE, I DIRECT
THAT THE ACTIVITY, AS SOON AS POSSIBLE, SHALL POST COPIES OF A NOTICE OF
UNIT DETERMINATION, WHICH SHALL BE FURNISHED BY THE APPROPRIATE AREA
DIRECTOR, IN PLACES WHERE NOTICES ARE NORMALLY POSTED AFFECTING THE
EMPLOYEES IN THE UNIT I HAVE HEREIN FOUND APPROPRIATE. SUCH NOTICE
SHALL CONFORM IN ALL RESPECTS TO THE REQUIREMENTS OF SECTION 202.4(B)
AND (C) OF THE ASSISTANT SECRETARY'S REGULATIONS. FURTHER, A LABOR
ORGANIZATION WHICH SEEKS TO INTERVENE IN THIS MATTER MUST DO SO IN
ACCORDANCE WITH THE REQUIREMENTS OF SECTION 202.5 OF THE ASSISTANT
SECRETARY'S REGULATIONS. A TIMELY INTERVENTION WILL BE GRANTED SOLELY
FOR THE PURPOSE OF APPEARING ON THE BALLOT IN THE ELECTION AMONG THE
EMPLOYEES IN THE UNIT FOUND APPROPRIATE.
DATED, WASHINGTON, D.C.
SEPTEMBER 30, 1975
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE PARTIES STIPULATED THAT THE RECORD AND THEIR BRIEFS FILED IN
DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION REGION (DCASR),
SAN FRANCISCO, CALIFORNIA, DEFENSE CONTRACT ADMINISTRATION SERVICES
DISTRICT (DCASD), SALT LAKE CITY, UTAH, A/SLMR NO. 461, CONSTITUTE THE
FULL RECORD IN THE INSTANT PROCEEDING EXCEPT FOR SUPPLEMENTS AND
CORRECTIONS UPDATING CERTAIN ITEMS.
/3/ THE CLAIMED UNIT APPEARS AS AMENDED AT THE HEARING. INITIALLY,
THE CLAIMED UNIT WAS LIMITED TO THE EMPLOYEES IN THE STATES OF MONTANA
AND WASHINGTON AND IN NORTHERN IDAHO ASSIGNED TO THE DCASD, SEATTLE,
HEADQUARTERS. AT THE HEARING, THE AFGE AGREED TO EXPAND THE CLAIMED
UNIT TO INCLUDE ALL ELIGIBLE EMPLOYEES OF THE DCASD, SEATTLE.
/4/ ALSO, A RESIDENT OFFICE IN HAWAII REPORTS DIRECTLY TO DCASR, SAN
FRANCISCO.
/5/ SEE UNION RECOGNITION IN THE FEDERAL GOVERNMENT ISSUED BY THE
U.S. CIVIL SERVICE COMMISSION, OFFICE OF LABOR-MANAGEMENT RELATIONS
(NOVEMBER 1974).
/6/ FURTHER, AT THE HEARING THE PARTIES AGREED TO EXCLUDE THE GS-6
SECRETARY-STENOGRAPHER, SECRETARY TO THE DISTRICT COMMANDER, AND THE
GS-5 SECRETARY-STENOGRAPHER, SECRETARY TO THE CHIEF, DCASO, PORTLAND, ON
THE BASIS THAT THEY ARE CONFIDENTIAL EMPLOYEES. INASMUCH AS THERE IS NO
EVIDENCE IN THE RECORD WHICH INDICATES THE PARTIES' AGREEMENT WAS
IMPROPER IN THIS REGARD, I FIND THAT THESE EMPLOYEES SHOULD BE EXCLUDED
FROM ANY UNIT FOUND APPROPRIATE.
/7/ CF. DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION, SOUTHWEST REGION, TULSA AIRWAY FACILITIES SECTOR, FLRC
NO. 74A-28 AND DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, NATIONAL WEATHER SERVICE, CENTRAL REGION, A/SLMR NO.
331, FLRC NO. 74A-16.
/8/ SEE DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION, SAN FRANCISCO, CITED ABOVE.
/9/ I AM ADVISED ADMINISTRATIVELY THAT THE AFGE HAS SUBMITTED A
SHOWING OF INTEREST IN SUPPORT OF ITS PETITION WHICH IS IN EXCESS OF 30
PERCENT IN THE UNIT FOUND APPROPRIATE.
5 A/SLMR 563; P. 616; CASE NO. 31-8850(CA); SEPTEMBER 30, 1975.
BUREAU OF DISTRICT OFFICE OPERATIONS,
SOCIAL SECURITY ADMINISTRATION,
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
BOSTON, MASSACHUSETTS
A/SLMR NO. 563
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY LOCAL
1164, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (COMPLAINANT)
ALLEGING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (2) OF THE
ORDER BY FAILING TO PROMOTE A UNION STEWARD AND AN ASSISTANT UNION
STEWARD BECAUSE OF THEIR MEMBERSHIP IN, AND ACTIVITIES ON BEHALF OF, THE
COMPLAINANT.
BASED ON CERTAIN CREDITED TESTIMONY, THE ADMINISTRATIVE LAW JUDGE
CONCLUDED THAT THE DENIED PROMOTIONS WERE BASED ON THE EMPLOYEES' LACK
OF EXPERTISE AND WERE UNRELATED TO THEIR PARTICIPATION IN UNION
ACTIVITIES. THE ASSISTANT SECRETARY ADOPTED THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS AND, ACCORDINGLY,
ORDERED THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
BUREAU OF DISTRICT OFFICE OPERATIONS,
SOCIAL SECURITY ADMINISTRATION,
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
BOSTON, MASSACHUSETTS
AND
LOCAL 1164, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
ON JUNE 30, 1975, ADMINISTRATIVE LAW JUDGE BURTON S. STERNBURG ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAS 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
EXCEPTIONS WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER.
THE ASSISTANT SECRETARY 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, I HEREBY ADOPT THE ADMINISTRATIVE LAW JUDGE'S
FINDINGS, /1/ CONCLUSIONS AND RECOMMENDATIONS.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 31-8850(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 30, 1975
/1/ I FIND NO BASIS FOR REVERSING THE ADMINISTRATIVE LAW JUDGE'S
CREDIBILITY FINDINGS IN THE SUBJECT CASE. SEE, IN THIS REGARD, NAVY
EXCHANGE, U.S. NAVAL AIR STATION, QUONSET POINT, RHODE ISLAND, A/SLMR
NO. 180.
IN THE MATTER OF
BUREAU OF DISTRICT OFFICE OPERATIONS,
SOCIAL SECURITY ADMINISTRATION, DEPARTMENT
OF HEALTH EDUCATION AND WELFARE, BOSTON,
MASSACHUSETTS
AND
LOCAL 1164, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
MR. ROBERT D. CHLUP
SOCIAL SECURITY ADMINISTRATION
ROOM 1109, JOHN F. KENNEDY BUILDING
BOSTON, MASSACHUSETTS
MR. WILLIAM L. MCGUIRE
68 LYMAN STREET
WALTHAM, MASSACHUSETTS 02154
BEFORE: BURTON S. STERNBURG
PURSUANT TO AN AMENDED COMPLAINT FIRST FILED ON OCTOBER 2, 1974,
UNDER EXECUTIVE ORDER 11491, AS AMENDED, BY LOCAL 1164, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, (HEREINAFTER CALLED THE
UNION OR COMPLAINANT), AGAINST THE BUREAU OF DISTRICT OFFICE OPERATIONS,
SOCIAL SECURITY ADMINISTRATION, DEPARTMENT OF HEALTH EDUCATION AND
WELFARE, BOSTON, MASSACHUSETTS, (HEREINAFTER CALLED THE RESPONDENT OR
AGENCY), A NOTICE OF HEARING ON COMPLAINT WAS ISSUED BY THE REGIONAL
DIRECTOR FOR THE NEW YORK CITY, NEW YORK REGION ON MARCH 19, 1975.
THE COMPLAINT ALLEGES, IN SUBSTANCE, THAT THE RESPONDENT VIOLATED
SECTIONS 19(A)(1) AND (2) OF THE EXECUTIVE ORDER BY VIRTUE OF ITS
ACTIONS IN FAILING AND REFUSING TO PROMOTE TWO NAMED EMPLOYEES BECAUSE
OF THEIR MEMBERSHIP IN, AND ACTIVITIES ON BEHALF OF, THE UNION.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON MAY 8, 1975, BOSTON,
MASSACHUSETTS. ALL PARTIES WERE AFFORDED OPPORTUNITY TO BE HEARD, TO
EXAMINE AND CROSS-EXAMINE WITNESSES AND TO INTRODUCE EVIDENCE BEARING ON
THE ISSUES INVOLVED HEREIN.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS
AND RECOMMENDATIONS:
THE UNION IS THE EXCLUSIVE REPRESENTATIVE OF "ALL NONSUPERVISORY
PERMANENT EMPLOYEES IN THE DISTRICT AND BRANCH OFFICERS OF THE SOCIAL
SECURITY ADMINISTRATION IN NEW ENGLAND (BOSTON OFFICE)" AND SIGNATORY TO
A COLLECTIVE BARGAINING AGREEMENT WITH SUCH AGENCY. MR. PAUL THIBAULT
AND MRS. OPAL WARD, THE ALLEGED DISCRIMINATEES HEREIN, HOLD THE
POSITIONS OF UNION STEWARD AND ASSISTANT UNION STEWARD, RESPECTIVELY.
AT THE TIME OF THE EVENTS UNDERLYING THE INSTANT COMPLAINT, MR.
THIBAULT AND MRS. OPAL WARD WERE EMPLOYED BY THE RESPONDENT AS GS-6
TELEPHONE SERVICE REPRESENTATIVES IN THE BOSTON TELESERVICE CENTER. IN
SUCH CAPACITY, THEY WERE RESPONSIBLE FOR ANSWERING TELEPHONE INQUIRIES
RELATIVE TO THE VARIOUS PROGRAMS AND BENEFITS ADMINISTERED BY THE
RESPONDENT. IN THE EVENT THAT THE INQUIRIES CONCERNED SUBJECTS WHICH
THEY, OR THE OTHER TELEPHONE SERVICE REPRESENTATIVES SIMILARLY SITUATED,
WERE NOT VERSED, SUCH INQUIRIES WOULD BE REFERRED TO THEIR IMMEDIATE
SUPERVISOR OR TO THE BOSTON DISTRICT OFFICE OF THE RESPONDENT. FALLING
INTO THIS LATTER CATEGORY WERE INQUIRIES CONCERNING SUPPLEMENTAL
BENEFITS AND BLACK LUNG, TWO NEW PROGRAMS ADMINISTERED BY RESPONDENT.
BOTH MRS. WARD AND MR. THIBAULT HAD BEEN ELECTED AND/OR SELECTED FOR
THEIR RESPECTIVE UNION POSITIONS IN 1973. SINCE BEING SO SELECTED, MR.
THIBAULT HAS PARTICIPATED IN ONLY TWO INCIDENTS INVOLVING HIS POSITION
OF UNION STEWARD, WHILE MRS. WARD, ON THE OTHER HAND, HAS NEVER HAD THE
OPPORTUNITY OR OCCASION TO UTILIZE HER POSITION AS ASSISTANT UNION
STEWARD. THUS, THE RECORD INDICATES THAT MR. THIBAULT REPRESENTED OR
ASSISTED FELLOW EMPLOYEE WIGGINS IN A GRIEVANCE IN MAY OF 1974
CONCERNING WIGGINS' JOB CLASSIFICATION. ADDITIONALLY, IN THE SUMMER OF
1973, MR. THIBAULT BROUGHT TO THE ATTENTION OF JOYCE KOBRYN, MANAGER OF
TELESERVICE CENTER, THE FACT THAT A RECENTLY POSTED MEMORANDUM SHOWING
THE "LINE OF SUCCESSION OF SUPERVISORS IN CASE OF EMERGENCY" WAS
INCORRECT. UPON BEING INFORMED OF THE ALLEGED ERROR, MS. KOBRYN BECAME
UPSET AT MR. THIBAULT AND "SCREAMED THAT IT WAS HER OFFICE AND THAT NO
ONE WAS GOING TO TELL HER WHAT TO DO". SUBSEQUENTLY, SOME SIX OR EIGHT
MONTHS LATER THE POSTED MEMORANDUM WAS CHANGED TO REFLECT THE SUGGESTED
CORRECTION OF MR. THIBAULT WITHOUT ANY FURTHER COMMENT OR DISCUSSION
THEREON.
ACCORDING TO THE UNCONTROVERTED TESTIMONY OF MR. PATRICK CONTE,
NATIONAL REPRESENTATIVE OF THE UNION, IN AN INFORMAL CONVERSATION WITH
MS. KOBRYN IN THE SUMMER OF 1973, MS. KOBRYN INDICATED THAT "SHE WOULD
TOLERATE UNIONS", "WAS NOT IN FAVOR OF UNIONS IN GOVERNMENT" BUT WOULD
COMPLY WITH THE EXECUTIVE ORDER.
WHILE HANDLING THE WIGGINS' GRIEVANCE IN MAY OF 1974, MR. THIBAULT
WAS ADMONISHED BY MS. KOBRYN, MANAGER OF THE TELESERVICE CENTER, TO KEEP
TRACK OF HIS TELEPHONE CONVERSATIONS DEALING WITH THE GRIEVANCE. IN
THIS CONNECTION, THE COLLECTIVE BARGAINING AGREEMENT IN EFFECT PROVIDES
THAT THE STEWARD IS REQUIRED TO REQUEST OFFICIAL TIME BEFORE ENGAGING IN
UNION-MANAGEMENT ACTIVITIES DURING WORKING HOURS. THERE WAS NO EVIDENCE
THAT MR. THIBAULT WAS EVER RESTRICTED IN THE USE OF HIS TELEPHONE OR
OTHERWISE INTERFERED WITH THE EXERCISE OF HIS DUTIES AS UNION STEWARD.
ON FEBRUARY 28, 1974, MR. THIBAULT AND MRS. WARD WERE ACCORDED
"SATISFACTORY" PERFORMANCE APPRAISALS AS GS-6 TELEPHONE SERVICE
REPRESENTATIVES.
UNDER LETTER DATED JUNE 28, 1974, ROBERT BYNUM, DIRECTOR, BUREAU OF
DISTRICT OFFICE OPERATIONS, ADVISED "ALL DISTRICT, BRANCH AND
TELESERVICE CENTER MANAGERS" THAT THE CIVIL SERVICE COMMISSION HAD,
PURSUANT TO THE AGENCY'S REQUEST, UPGRADED THE TELEPHONE SERVICE
REPRESENTATIVES' POSITION FROM A GS-6 TO A GS-7 ON THE BASIS OF THE
INCREASED WORK LOAD CAUSED BY RECENT AMENDMENTS TO THE SOCIAL SECURITY
ACT AND OTHER NEW LEGISLATION ASSIGNED TO THE AGENCY. THE LETTER WENT
ON TO STATE THAT ONLY GS-6'S WHO HAD BEEN IN GRADE FOR A FULL YEAR AND
MET NEW CRITERIA ENCLOSED WITH THE LETTER WOULD BE ELIGIBLE FOR
PROMOTION. EACH ADDRESSEE OF THE LETTER WAS CAUTIONED TO MAKE SURE THAT
THE CRITERIA ENCLOSED WAS MET BEFORE ACCORDING PROMOTIONS TO ANY GS-6
SINCE THE CIVIL SERVICE COMMISSION'S PREVIOUS "DESK AUDITS REVEALED
THAT, IN THEIR OPINION, A SIGNIFICANT NUMBER OF INCUMBENT GS-6 EMPLOYEES
WERE NOT PERFORMING AT THE GS-7 LEVEL". IN THE EVENT ANY GS-6 EMPLOYEE
DID NOT IN THE OPINION OF THE PARTICULAR DEPARTMENT MANAGERS MEET THE
NEW CRITERIA ESTABLISHED FOR THE NEW GS-7 POSITIONS, THE DEPARTMENT
MANAGERS WERE GIVEN THE RESPONSIBILITY OF ESTABLISHING AN APPROPRIATE
TRAINING PROGRAM. THE PROMOTION OF ALL GS-6 EMPLOYEES MEETING THE NEW
CRITERIA WAS TO BE EFFECTED ON JULY 21, 1974.
AS OF JULY 21, 1974, MR. THIBAULT AND MRS. WARD WERE THE ONLY GS-6
EMPLOYEES IN THE BOSTON TELESERVICE CENTER WHO HAD BEEN IN GRADE FOR
MORE THAN A YEAR. MRS. ALMA WHITE, WHO WAS ALSO A GS-6 TELEPHONE
SERVICE REPRESENTATIVE COMPLETED HER YEAR IN GRADE IN SEPTEMBER, 1964.
FOLLOWING RECEIPT OF THE JUNE 28, 1974 LETTER, SUPERVISOR STEELE /1/
AND MANAGER KOBRYN DISCUSSED THE PROMOTION OF MR. THIBAULT AND MRS. WARD
ON THE BASIS OF THE NEW CRITERIA FOR THE GS-7 POSITION. FOLLOWING THEIR
CONCLUSION THAT NEITHER MR. THIBAULT AND MRS. WARD MET SUCH CRITERIA,
SUPERVISOR STEELE ORALLY INFORMED MR. THIBAULT AND MRS. WARD OF THEIR
DECISION. WRITTEN CONFIRMATION OF THE AFOREMENTIONED DECISION AND THE
DEFICIENCIES RELIED UPON WERE SENT TO MR. THIBAULT AND MRS. WARD ON JULY
24, 1974. SUBSEQUENTLY, MRS. ALMA WHITE, WAS ALSO INFORMED OF HERE
FAILURE TO MEET THE NEW GS-7 CRITERIA. THEREAFTER, FOLLOWING A TRAINING
PERIOD WHICH INCLUDED APPROXIMATELY 29 TO 30 SCHEDULED HOURS OF CLASS
AND ON-THE-JOB TRAINING AND OBSERVATION, MR. THIBAULT, MRS. WARD AND
MRS. WHITE WERE PROMOTED IN NOVEMBER, 1974 TO GS-7 POSITIONS.
MRS. WHITE, WHO IS NOT A MEMBER OF THE UNION, TESTIFIED THAT SHE
CONSIDERED BOTH SUPERVISOR STEELE AND MANAGER KOBRYN TO BE FAIR AND THAT
SHE DID NOT DEEM HERSELF QUALIFIED FOR THE GS-7 POSITION IN SEPTEMBER
DUE TO HER LACK OF KNOWLEDGE OF VARIOUS NEW LAWS UNDER THE AGENCY'S
SUPERVISION.
MRS. AGNES WEYLAND, A GS-7 TECHNICAL ASSISTANT, WHOSE JOB CONSISTED
OF GIVING TRAINING AND TECHNICAL ASSISTANCE TO THE TELEPHONE SERVICE
REPRESENTATIVES, SUCH AS MR. THIBAULT AND MRS. WARD, TESTIFIED THAT
BASED UPON HER WORK WITH THE TELEPHONE SERVICE REPRESENTATIVES IN THE
BOSTON TELESERVICE CENTER SHE WAS OF THE OPINION THAT NONE OF THE
TELEPHONE SERVICE REPRESENTATIVES TO SUPERVISOR STEELE AND MANAGER
KOBRYN SHORTLY AFTER SHE, MRS. WEYLAND, READ THE NEW CRITERIA FOR THE
GS-7 POSITION. IT WAS MRS. WEYLAND WHO SET UP AND CONDUCTED THE
TRAINING PROGRAM LEADING TO THE PROMOTIONS OF MR. THIBAULT AND MRS.
WARD.
THE RECORD CONTAINS TWO SEPARATE INFORMAL SURVEYS MADE BY THE UNION
AND THE AGENCY WHICH REVEAL THAT UPWARDS OF NINETY PERCENT OF THE
ELIGIBLE TELEPHONE SERVICE REPRESENTATIVES THROUGHOUT THE COUNTRY WERE
PROMOTED TO GS-7 ON THE DUE DATE, I.E. JULY 21, 1974.
SECTION 203.14 OF THE REGULATIONS IMPOSES UPON THE COMPLAINANT THE
BURDEN OF PROVING THE ALLEGATIONS OF THE COMPLAINT BY A PREPONDERANCE OF
THE EVIDENCE. THE COMPLAINANT HAS FAILED TO SUSTAIN THIS BURDEN.
COMPLAINANT CONTENDS THAT MR. THIBAULT AND MRS. WARD WERE DENIED
PROMOTIONS ON JULY 21, 1974, SOLELY BECAUSE OF THEIR PARTICIPATION IN
ACTIVITIES PROTECTED BY THE EXECUTIVE ORDER. IN THE CASE OF MR.
THIBAULT SUCH ACTIVITIES CONSISTED OF BEING A UNION STEWARD,
PARTICIPATING IN ONE GRIEVANCE AND BRINGING TO THE ATTENTION OF THE
SERVICE CENTER MANAGEMENT THE FACT THAT A PARTICULAR MEMORANDUM WAS IN
ERROR. MRS. WARD'S ONLY ACTIVITY CONSISTED OF BEING ASSISTANT UNION
STEWARD, A POSITION WHICH SHE, ADMITTEDLY, NEVER UTILIZED. BASED UPON
SUCH ACTIVITIES AND THE FACT THAT MANAGER KOBRYN ON ONE OCCASION, REMOTE
IN TIME, COMMENTED THAT SHE DID NOT SEE THE NECESSITY FOR UNIONS IN
GOVERNMENT, AND ON ANOTHER OCCASION ADMONISHED MR. THIBAULT ABOUT THE
COLLECTIVE BARGAINING CONTRACT OBLIGATION TO KEEP TRACK OF ALL WORKING
TIME USED FOR UNION BUSINESS, COMPLAINANT TAKES THE POSITION THAT THE
DENIAL OF IMMEDIATE PROMOTIONS TO MR. THIBAULT AND MRS. WARD WERE
DISCRIMINATORILY MOTIVATED. COMPLAINANT, HOWEVER, HAS NOT OFFERED ANY
PROBATIVE EVIDENCE TO REFUTE THE CONTENTION AND/OR POSITION OF
RESPONDENT THAT THEY, MR. THIBAULT AND MRS. WARD, AS WELL AS OTHER
SIMILARLY SITUATED TELESERVICE REPRESENTATIVES IN THE BOSTON OFFICE, DID
NOT MEET THE NEW GS-7 CRITERIA. THUS THE SOLE EVIDENCE RELIED UPON BY
COMPLAINANT IN THIS RESPECT CONSISTED OF THE AFFECTED EMPLOYEES
SATISFACTORY GS-6 APPRAISALS MADE SEVERAL MONTHS EARLIER UNDER A
DIFFERENT JOB DESCRIPTION AND THE FACT THAT AN INFORMAL SURVEY INDICATED
THAT UPWARDS OF NINETY PERCENT OF THE GS-6 EMPLOYEES THROUGHOUT THE
RESPONDENT'S OTHER INSTALLATIONS AROUND THE COUNTRY SUFFERED NO DELAY IN
ATTAINING THE NEW GS-7 POSITIONS.
THE RESPONDENT, ON THE OTHER HAND, THROUGH THE TESTIMONY OF A
SIMILARLY SITUATED GS-6 WHO WAS ALSO DENIED AN IMMEDIATE PROMOTION,
TECHNICAL ASSISTANT WEYLAND AND SUPERVISOR STEELE, THE LATTER TWO
INDIVIDUALS BEING A UNION AND FORMER UNION MEMBER, RESPECTIVELY, HAS
ESTABLISHED THAT THE PROMOTIONS WERE NOT TO BE AUTOMATIC AND THAT ALL
THE TELEPHONE SERVICE REPRESENTATIVES IN THE BOSTON OFFICE FELL SHORT OF
MEETING THE NEW GS-7 CRITERIA. THE FACT THAT OTHER TELEPHONE SERVICE
REPRESENTATIVES LOCATED IN OTHER INSTALLATIONS THROUGHOUT THE COUNTRY
WERE PROMOTED FORTHWITH DOES NOT, IN MY OPINION, LEND SUPPORT TO
COMPLAINANT'S CASE SINCE THE DIRECTIVE ACCOMPANYING THE NEW GS-7
CRITERIA STRESSED THE FACT THAT THE PROMOTIONS WERE NOT TO BE AUTOMATIC
AND THAT THE SURVEY LEADING TO THE RECLASSIFICATION INDICATED THAT A
NUMBER OF GS-6 EMPLOYEES WERE NOT QUALIFIED FOR IMMEDIATE PROMOTION.
ACCORDINGLY, IN VIEW OF THE FOREGOING, AND BASED PRIMARILY ON THE
CREDITED TESTIMONY OF MRS. WEYLAND, WHO WAS CLOSELY INVOLVED IN THE DAY
TO DAY ACTIVITIES OF THE TELEPHONE REPRESENTATIVES AND SUBSEQUENTLY
ESTABLISHED AND CONDUCTED THE TRAINING PROGRAM LEADING TO THE PROMOTIONS
OF MR. THIBAULT AND MRS. WARD IN NOVEMBER OF 1974, I FIND THAT THE
DENIAL OF PROMOTIONS TO MR. THIBAULT AND MRS. WARD ON JULY 21, 1974, WAS
DUE TO THEIR LACK OF EXPERTISE AND UNRELATED TO THEIR PARTICIPATION IN
UNION ACTIVITIES PROTECTED BY THE EXECUTIVE ORDER.
HAVING FOUND THAT RESPONDENT HAS NOT ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTION 19(A)(1) AND (2) OF EXECUTIVE ORDER 11491, AS
AMENDED, I RECOMMEND THAT THE COMPLAINT HEREIN BE DISMISSED IN ITS
ENTIRETY.
DATED: JUNE 30, 1975
WASHINGTON, D.C.
/1/ SUPERVISOR STEEL WAS A MEMBER OF THE UNION PRIOR TO BEING
PROMOTED TO A SUPERVISOR IN MARCH OF 1974.
5 A/SLMR 562; P. 614; CASE NO. 31-9082(CU); SEPTEMBER 30, 1975.
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
SOCIAL SECURITY ADMINISTRATION,
BUREAU OF FIELD OPERATIONS,
BOSTON REGION,
DISTRICT AND BRANCH OFFICES
A/SLMR NO. 562
THIS CASE INVOLVED A PETITION FOR CLARIFICATION OF UNIT (CU) FILED BY
THE ACTIVITY-PETITIONER SEEKING TO EXCLUDE CERTAIN EMPLOYEE JOB
CLASSIFICATIONS FROM THE EXISTING EXCLUSIVELY RECOGNIZED UNIT ON THE
GROUNDS THAT, DUE TO CHANGES SINCE THE CERTIFICATION OF REPRESENTATIVE
WAS ISSUED ON MAY 19, 1970, THE EMPLOYEES IN THESE JOB CLASSIFICATIONS
WOULD NOW BE CONSIDERED TO BE CONFIDENTIAL EMPLOYEES. SPECIFICALLY, THE
ACTIVITY-PETITIONER SOUGHT TO EXCLUDE FROM THE UNIT EMPLOYEES IN THE
CLASSIFICATIONS OF ADMINISTRATIVE AIDE OR ADMINISTRATIVE CLERK AND
ANSWERING SERVICE AIDE IN THE TELESERVICE CENTER. CONTRARY TO THE
ACTIVITY-PETITIONER, THE INCUMBENT EXCLUSIVE REPRESENTATIVE, THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1164 (AFGE),
CONTENDED THAT THE EMPLOYEES IN QUESTION WERE NOT CONFIDENTIAL EMPLOYEES
AND SHOULD REMAIN IN THE UNIT.
THE EVIDENCE ESTABLISHED THAT THE ACTIVITY-PETITIONER'S DISTRICT AND
BRANCH OFFICES WERE HEADED BY DISTRICT MANAGERS AND BRANCH MANAGERS AND
THAT THESE OFFICIALS WERE INVOLVED IN FORMULATING AND EFFECTUATING LABOR
RELATIONS POLICY WITH RESPECT TO THEIR OFFICES AND THE BOSTON REGION.
THE EVIDENCE FURTHER ESTABLISHED THAT THE ADMINISTRATIVE AIDES OR
ADMINISTRATIVE CLERKS ACTED AS THE PRINCIPAL SECRETARIES TO THE DISTRICT
MANAGERS AND BRANCH MANAGERS AND, IN THIS CAPACITY, HAD ACCESS TO
PERSONNEL RECORDS AND WERE INVOLVED IN THE PREPARATION OF MATERIAL IN
CONNECTION WITH PERSONNEL MATTERS AND IN THE PREPARATION OF CONFIDENTIAL
LABOR RELATIONS MATERIALS, SUCH AS THE REPLIED OF DISTRICT AND BRANCH
MANAGERS TO A MANAGEMENT LABOR RELATIONS SURVEY. IN THESE
CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT THE ADMINISTRATIVE
AIDS OR ADMINISTRATIVE CLERKS WERE CONFIDENTIAL EMPLOYEES. HOWEVER, HE
CONCLUDED THAT THE EVIDENCE WAS INSUFFICIENT TO MAKE A DETERMINATION AS
TO WHETHER THE ONE ANSWERING SERVICE AIDE IN THE TELESERVICE CENTER
EMPLOYED BY THE ACTIVITY-PETITIONER WAS A CONFIDENTIAL EMPLOYEE.
ACCORDINGLY, THE ASSISTANT SECRETARY CLARIFIED THE EXCLUSIVELY
RECOGNIZED UNIT BY EXCLUDING FROM THE UNIT AN EMPLOYEE CLASSIFIED AS AN
ADMINISTRATIVE AIDE OR ADMINISTRATIVE CLERK IN EACH DISTRICT AND BRANCH
OFFICE.
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
SOCIAL SECURITY ADMINISTRATION,
BUREAU OF FIELD OPERATIONS,
BOSTON REGION,
DISTRICT AND BRANCH OFFICES
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1164
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER PETER F. DOW. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING A BRIEF FILED BY THE
ACTIVITY-PETITIONER, /1/ THE ASSISTANT SECRETARY FINDS:
THE ACTIVITY-PETITIONER FILED A PETITION FOR CLARIFICATION OF UNIT
(CU) SEEKING TO EXCLUDE CERTAIN EMPLOYEE JOB CLASSIFICATIONS FROM THE
EXISTING EXCLUSIVELY RECOGNIZED UNIT OF ALL NONSUPERVISORY EMPLOYEES IN
THE DISTRICT AND BRANCH OFFICES OF THE SOCIAL SECURITY ADMINISTRATION IN
NEW ENGLAND. IN THIS REGARD, THE ACTIVITY-PETITIONER CONTENDS THAT, DUE
TO CHANGES THAT HAD TAKEN PLACE SINCE THE CERTIFICATION OF
REPRESENTATIVE WAS ISSUED ON MAY 19, 1970, THE EMPLOYEES IN THE JOB
CLASSIFICATIONS OF ADMINISTRATIVE AIDE OR ADMINISTRATIVE CLERK /2/ AND
ANSWERING SERVICE AIDE IN THE TELESERVICE CENTER ARE NOT CONFIDENTIAL
EMPLOYEES AND SHOULD BE EXCLUDED FROM THE CERTIFIED UNIT. THE AFGE,
WHICH IS THE INCUMBENT EXCLUSIVE REPRESENTATIVE OF THE UNIT INVOLVED,
CONTENDS THAT THE EMPLOYEES IN THE ABOVE-NOTED CLASSIFICATIONS ARE NOT
CONFIDENTIAL EMPLOYEES AND SHOULD REMAIN IN THE CERTIFIED UNIT.
THE EVIDENCE INDICATES THAT THE ACTIVITY-PETITIONER HAS 48 DISTRICT
OFFICES, 26 BRANCH OFFICES AND ONE TELESERVICE CENTER IN THE BOSTON
REGION, WHICH ENCOMPASSES THE NEW ENGLAND STATES. EACH DISTRICT OFFICE
OR BRANCH OFFICE IS HEADED BY A DISTRICT MANAGER OR BRANCH MANAGER, AND
THE TELESERVICE CENTER IS HEADED BY A TELESERVICE CENTER MANAGER. THE
DISTRICT AND BRANCH MANAGERS ARE RESPONSIBLE FOR THE SUPERVISION OF THE
EMPLOYEES OF THE DISTRICT AND BRANCH OFFICES, RESPECTIVELY, AND, IN THIS
CAPACITY, THEY ARE INVOLVED IN FORMULATING AND EFFECTUATING LABOR
RELATIONS POLICY WITH RESPECT TO THEIR OFFICES AND THE BOSTON REGION.
/3/ THUS, THE RECORD REVEALS THAT THE DISTRICT AND BRANCH MANAGERS ARE
RESPONSIBLE FOR ADMINISTERING THE NEGOTIATED AGREEMENT AT THE LOCAL
LEVEL, THAT THE NEGOTIATED AGREEMENT PERMITS SUPPLEMENTAL AGREEMENTS TO
BE NEGOTIATED AT THE DISTRICT LEVEL, THAT DISTRICT AND BRANCH MANAGERS
ACT AS THE SECOND STAGE MANAGEMENT OFFICIAL IN THE NEGOTIATED GRIEVANCE
PROCEDURE, AND THAT SEVERAL DISTRICT MANAGERS SERVE AS MEMBERS OF A
COLLECTIVE BARGAINING COUNCIL WHICH IS INVOLVED IN PREPARING NEGOTIATING
STRATEGY ON BEHALF OF THE ACTIVITY-PETITIONER.
THE RECORD REVEALS THAT ADMINISTRATIVE AIDES PERFORM A VARIETY OF
ADMINISTRATIVE AND SECRETARIAL DUTIES FOR THE DISTRICT OR BRANCH
MANAGERS, INCLUDING ACTING AS THEIR PRINCIPAL SECRETARIES. IN THIS
REGARD, THEY ARE RESPONSIBLE FOR ASSISTING THE MANAGEMENT STAFF IN
PERSONNEL MATTERS, SUCH AS INITIATING PERSONNEL ACTIONS AND INFORMING
EMPLOYEES ABOUT CHANGES THAT AFFECT THEM; PREPARING OR COORDINATING THE
PREPARATION OF CERTAIN PERSONNEL RECORDS; RECEIVING VISITORS AND
TELEPHONE CALLS FOR THE DISTRICT OR BRANCH MANAGERS; AND PERFORMING
MISCELLANEOUS SECRETARIAL DUTIES. THE EVIDENCE ALSO ESTABLISHES THAT
ADMINISTRATIVE AIDES GENERALLY HAVE ACCESS TO PERSONNEL RECORDS,
INCLUDING AWARDS, GRIEVANCES AND LABOR RELATIONS FILES; THAT THEY MAY
BE REQUIRED TO PREPARE MATERIAL IN CONNECTION WITH GRIEVANCES AND OTHER
PERSONNEL MATTERS IN ACCORDANCE WITH THE DIRECTIONS OF THE DISTRICT AND
BRANCH MANAGERS; AND THAT THEY REVIEW INCOMING MAIL OF A CONFIDENTIAL
NATURE. FURTHER, ADMINISTRATIVE AIDES HAVE BEEN INVOLVED IN THE
PREPARATION OF CONFIDENTIAL LABOR RELATIONS MATERIALS, SUCH AS THE
REPLIED OF THE DISTRICT AND BRANCH MANAGERS TO A MANAGEMENT LABOR
RELATIONS SURVEY.
BASED ON THE FOREGOING, I FIND THAT THE ADMINISTRATIVE AIDES OR
ADMINISTRATIVE CLERKS ARE CONFIDENTIAL EMPLOYEES AND, THEREFORE, SHOULD
BE EXCLUDED FROM THE EXCLUSIVELY RECOGNIZED UNIT. /4/ THUS, AS NOTED
ABOVE, EMPLOYEES IN THIS CLASSIFICATION ACT AS THE PRINCIPAL SECRETARIES
TO THE DISTRICT OR BRANCH MANAGERS; THE DISTRICT AND BRANCH MANAGERS
ARE INVOLVED IN THE FORMULATION AND EFFECTUATION OF THE
ACTIVITY-PETITIONER'S LABOR-MANAGEMENT RELATIONS POLICIES; AND THAT, IN
THEIR CAPACITY AS SECRETARIES TO THE DISTRICT AND BRANCH MANAGERS, THEY
PERFORM CONFIDENTIAL DUTIES FOR THE MANAGERS WITH RESPECT TO
LABOR-MANAGEMENT RELATIONS MATTERS. /5/ ACCORDINGLY, I SHALL ORDER THAT
THESE EMPLOYEES BE EXCLUDED FROM THE EXCLUSIVELY RECOGNIZED UNIT. /6/
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, FOR
WHICH THE NEW ENGLAND COUNCIL OF SOCIAL SECURITY LODGES, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, WAS CERTIFIED AS OF MAY 19,
1970, AND IN WHICH THE CERTIFICATION WAS AMENDED ON JUNE 21, 1972, TO
CHANGE THE NAME OF CERTIFIED LABOR ORGANIZATION TO AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1164, BE, AND HEREIN IS,
CLARIFIED BY EXCLUDING FROM SAID UNIT AN EMPLOYEE CLASSIFIED AS AN
ADMINISTRATIVE AIDE OR ADMINISTRATIVE CLERK IN EACH OF THE ACTIVITY'S
DISTRICT AND BRANCH OFFICES.
DATED, WASHINGTON, D.C.
SEPTEMBER 30, 1975
/1/ THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
1164, HEREINAFTER CALLED AFGE, FILED AN UNTIMELY BRIEF WHICH HAS NOT BE
CONSIDERED.
/2/ THE RECORD INDICATES IN THIS REGARD THAT THE ACTUAL JOB
DESCRIPTION THE ACTIVITY-PETITIONER SEEKS TO EXCLUDE FROM THE UNIT IS
ENTITLED "ADMINISTRATIVE CLERK" BUT THAT, IN THEIR DAILY WORK CAPACITY,
EMPLOYEES IN THIS JOB CLASSIFICATION ARE REFERRED TO AS "ADMINISTRATIVE
AIDES," WHICH WAS THE DESCRIPTION USED THROUGHOUT THE HEARING.
/3/ THERE CURRENTLY IS A REGIONWIDE NEGOTIATED AGREEMENT BETWEEN THE
ACTIVITY-PETITIONER AND THE AFGE COVERING THE EMPLOYEES IN THE
EXCLUSIVELY RECOGNIZED UNIT.
/4/ CERTAIN OF THE ACTIVITY'S LARGER DISTRICT AND BRANCH OFFICES HAVE
MORE THAN ONE EMPLOYEE CLASSIFIED AS AN ADMINISTRATIVE AIDE OR
ADMINISTRATIVE CLERK. HOWEVER, THE ACTIVITY DOES NOT CONTEND, NOR DOES
THE RECORD REVEAL, THAT THERE IS MORE THAN ONE ADMINISTRATIVE AIDE OR
ADMINISTRATIVE CLERK IN ANY SUCH OFFICE SERVING IN A CONFIDENTIAL
CAPACITY ON A PERMANENT BASIS.
/5/ CF. DEPARTMENT OF THE TREASURY, BUREAU OF ALCOHOL, TOBACCO AND
FIREARMS, WASHINGTON, D.C., A/SLMR NO. 538; DEPARTMENT OF INTERIOR,
BUREAU OF LAND MANAGEMENT, DISTRICT OFFICE, A/SLMR NO. 212; INTERNAL
REVENUE SERVICE, BIRMINGHAM DISTRICT, A/SLMR NO. 186; AND PORTLAND
AREA OFFICE, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, A/SLMR NO.
111.
/6/ AS NOTED ABOVE, THE ACTIVITY-PETITIONER ALSO SOUGHT TO EXCLUDE
FROM THE EXCLUSIVELY RECOGNIZED UNIT EMPLOYEES IN THE CLASSIFICATION OF
ANSWERING SERVICE AIDE IN THE TELESERVICE CENTER. THE RECORD INDICATES
THAT THERE IS ONE INDIVIDUAL EMPLOYED IN THIS CLASSIFICATION. HOWEVER,
THE EVIDENCE ADDUCED WAS CONSIDERED INSUFFICIENT TO MAKE A DETERMINATION
AS TO WHETHER THE EMPLOYEE INVOLVED ACTS IN A CONFIDENTIAL CAPACITY TO A
PERSON WHO FORMULATES AND EFFECTUATES MANAGEMENT POLICIES IN THE FIELD
OF LABOR RELATIONS. ACCORDINGLY, I SHALL MAKE NO FINDING WITH RESPECT
TO THE ELIGIBILITY OF THIS EMPLOYEE.
5 A/SLMR 561; P. 609, CASE NOS. 31-8863(AC), 31-8890(RA); SEPTEMBER
30, 1975.
UNITED STATES COAST GUARD
AIR STATION,
NON-APPROPRIATED FUND ACTIVITY,
CAPE COD, MASSACHUSETTS
A/SLMR NO. 561
IN THIS CASE, THE UNITED STATES COAST GUARD AIR STATION,
NON-APPROPRIATED FUND ACTIVITY (COAST GUARD), FILED AN RA PETITION
WHICH, IN EFFECT, SOUGHT A DETERMINATION BY THE ASSISTANT SECRETARY AS
TO THE IMPACT OF THE TRANSFER OF CERTAIN FACILITIES FROM THE ARMY-AIR
FORCE EXCHANGE SERVICE, NEW ENGLAND AREA EXCHANGE (AAFES), TO THE COAST
GUARD ON A UNIT OF EXCLUSIVE RECOGNITION REPRESENTED BY THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-178 (NAGE). THE NAGE
FILED A PETITION FOR AMENDMENT OF CERTIFICATION (AC) TO CHANGE THE NAME
OF THE ACTIVITY DESIGNATED IN THE CERTIFICATION OF REPRESENTATIVE FROM
THE "OTIS AIR FORCE BASE EXCHANGE AT THE OTIS AIR FORCE BASE, MASS., AND
NORTH TRURO AFS (AIR FORCE STATION), DEPARTMENT OF TRANSPORTATION, CAPE
COD, MASSACHUSETTS." THE NAGE ALSO FILED A PETITION FOR CLARIFICATION OF
UNIT (CU) IN ORDER TO CLARIFY ITS EXISTING EXCLUSIVELY REPRESENTED UNIT
TO INCLUDE CERTAIN EMPLOYEES OF THE COAST GUARD'S GROCERY ANNEX,
MINIMART, AND PACKAGE STORE IN THE UNIT. IN BOTH ITS CU AND AC
PETITIONS, THE NAGE ALSO SOUGHT TO EXCLUDE FROM THE UNIT THE EMPLOYEES
OF THE NORTH TRURO AIR FORCE STATION.
THE RECORD REVEALED THAT THE NAGE HAD BEEN CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE FOR CERTAIN NON-APPROPRIATED FUND EMPLOYEES OF THE OTIS
AIR FORCE BASE EXCHANGE AND THAT, ON SEPTEMBER 25, 1974, THIS ACTIVITY
WAS DEACTIVATED AND ITS PHYSICAL FACILITIES TRANSFERRED TO THE COAST
GUARD PURSUANT TO AN AGREEMENT BETWEEN THE AAFES AND THE COAST GUARD.
UNDER THIS AGREEMENT, THE EMPLOYEES WHO LOST THEIR POSITIONS WITH THE
AAFES DUE TO THIS DEACTIVATION WOULD BE GIVEN PREFERENCE OVER OTHER
EQUALLY SUITED APPLICANTS FOR EMPLOYMENT AT THE COAST GUARD, BUT THE
FORMER EMPLOYEES OF THE AAFES WOULD NOT BE AUTOMATICALLY TRANSFERRED TO,
OR HIRED BY, THE COAST GUARD. THE RECORD SHOWED THAT ALTHOUGH THE 48
EMPLOYEES WHO LOST THEIR POSITIONS WITH THE AAFES WERE RECOMMENDED BY
THE AAFES FOR HIRING BY THE COAST GUARD, ONLY 31 OF THESE EMPLOYEES WERE
SUBSEQUENTLY HIRED BY THE COAST GUARD. FURTHER, THE RECORD REVEALED
THAT SOME OF THE FORMER AAFES EMPLOYEES WHO WERE HIRED BY THE COAST
GUARD WERE NOT EMPLOYED THEREAFTER IN FUNCTIONS WHICH HAD BEEN PERFORMED
BY THE AAFES; THAT THE COAST GUARD ADDED THE FUNCTIONS OF THE FORMER
AAFES FACILITIES TO THE PRE-EXISTING COAST GUARD ORGANIZATION, WHICH
THEREAFTER EMPLOYED APPROXIMATELY 125 PERSONS; THAT THE FORMER
EMPLOYEES OF THE AAFES CONSTITUTE APPROXIMATELY ONLY ONE QUARTER OF THE
EMPLOYEE COMPLEMENT OF THE COAST GUARD; THAT A NUMBER OF EMPLOYEES HAVE
BEEN TRANSFERRED BETWEEN DIFFERENT SEGMENTS OF THE COAST GUARD; THAT
MANY OF THE SUPERVISORY PERSONNEL OF THE COAST GUARD HAD NOT FORMERLY
BEEN EMPLOYEES OR SUPERVISORS OF THE AAFES; THAT HIGHER MANAGEMENT OF
THE COAST GUARD IS RESPONSIBLE FOR THE APPLICATION OF PERSONNEL POLICIES
AND PRACTICES THROUGHOUT THE COAST GUARD; AND THAT CERTAIN MANAGERIAL
OPERATIONS, SUCH AS ACCOUNTING, ARE SUBJECT TO CENTRALIZED PROCEDURES
AND CONTROL. ALSO, AT THE HEARING THE PARTIES STIPULATED THAT THE
EMPLOYEES AT THE NORTH TRURO AIR FORCE STATION CONTINUED TO BE EMPLOYED
BY THE AAFES AFTER THE AFOREMENTIONED TRANSFER AND, THEREFORE, THESE
EMPLOYEES DO NOT SHARE A COMMUNITY OF INTEREST WITH THE EMPLOYEES OF THE
COAST GUARD.
UNDER THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT THE
FORMER EMPLOYEES OF THE AAFES WHO WERE HIRED BY THE COAST GUARD HAD BEEN
INTEGRATED FUNCTIONALLY AND ADMINISTRATIVELY INTO THE COAST GUARD AND DO
NOT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST THAT IS
SEPARATE AND DISTINCT FROM OTHER EMPLOYEES OF THE COAST GUARD. HE FOUND
ALSO THAT THE NAGE'S UNIT CONTINUED TO EXIST TO THE EXTENT THAT THE
EMPLOYEES AT THE NORTH TRURO AIR FORCE STATION REMAINED AAFES EMPLOYEES.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE CERTIFICATION OF
THE EXISTING UNIT REPRESENTED EXCLUSIVELY BY THE NAGE BE AMENDED SO THAT
ONLY THE EMPLOYEES AT THE NORTH TRURO AIR FORCE STATION WILL BE INCLUDED
IN THAT UNIT. THE ASSISTANT SECRETARY ALSO ORDERED THAT THE CU PETITION
WHICH, IN EFFECT, SOUGHT TO ADD SOME OF THE COAST GUARD EMPLOYEES TO THE
NAGE'S UNIT AT OTIS AIR FORCE BASE, BE DISMISSED INASMUCH AS THE NAGE'S
UNIT AT THE OTIS AIR FORCE BASE HAD CEASED TO EXIST AND, THEREFORE IT
FOLLOWED THAT THE COAST GUARD EMPLOYEES MAY NOT BE CONSIDERED TO HAVE
ACCRETED TO ANY EXISTING CERTIFIED UNIT. THE ASSISTANT SECRETARY
FURTHER ORDERED THAT THE RA PETITION BE DISMISSED. IN THIS REGARD, IT
WAS NOTED THAT ALTHOUGH AN RA PETITION IS A PROPER VEHICLE FOR AN
ACTIVITY (OR AGENCY) TO SEEK A DETERMINATION OF THE REPRESENTATIONAL
STATUS OF EMPLOYEES IN A SUBSTANTIALLY CHANGED UNIT, IT DOES NOT FOLLOW
THAT AN ELECTION WILL BE APPROPRIATE IN EACH INSTANCE WHERE, AS HERE,
SOME OF AN ACTIVITY'S EMPLOYEES HAD BEEN PREVIOUSLY EMPLOYED BY ANOTHER
ACTIVITY IN AN EXCLUSIVELY RECOGNIZED UNIT. THUS, IN THE ASSISTANT
SECRETARY'S VIEW, ELECTIONS IN NEWLY ESTABLISHED UNITS WHICH ARE NOT
SUBSTANTIALLY IDENTIFIABLE WITH ANY PRE-EXISTING UNITS, BUT RATHER
ESSENTIALLY INVOLVE EMPLOYEES WHO HAVE BEEN UNREPRESENTED, SHOULD RESULT
ONLY FROM PETITIONS FILED BY LABOR ORGANIZATIONS SEEKING EXCLUSIVE
RECOGNITION IN SUCH UNITS.
UNITED STATES COAST GUARD
AIR STATION,
NON-APPROPRIATED FUND ACTIVITY,
CAPE COD, MASSACHUSETTS
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES,
LOCAL R1-178
AND
ARMY AND AIR FORCE EXCHANGE SERVICE
NEW ENGLAND AREA EXCHANGE,
FORT DEVENS, MASSACHUSETTS
UNITED STATES COAST GUARD
AIR STATION,
NON-APPROPRIATED FUND ACTIVITY,
CAPE COD, MASSACHUSETTS
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES,
LOCAL R1-178
UNITED STATES COAST GUARD
AIR STATION,
NON-APPROPRIATED FUND ACTIVITY,
CAPE COD, MASSACHUSETTS
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES,
LOCAL R1-178
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER CAROL
BLACKBURN. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE
FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THE SUBJECT CASE, THE ASSISTANT SECRETARY
FINDS:
ON JUNE 28, 1971, THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
LOCAL R1-178, HEREINAFTER CALLED NAGE, WAS CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE OF CERTAIN EMPLOYEES OF THE OTIS AIR FORCE BASE EXCHANGE
AT THE OTIS AIR FORCE BASE, MASSACHUSETTS, AND AT THE NORTH TRURO AIR
FORCE STATION, MASSACHUSETTS. /1/ THE RECORD DISCLOSES THAT THE OTIS
AIR FORCE BASE EXCHANGE WAS DEACTIVATED ON SEPTEMBER 25, 1974, AND THAT
THE PHYSICAL FACILITIES OF THE OTIS AIR FORCE BASE EXCHANGE AT THE OTIS
AIR FORCE BASE SUBSEQUENTLY WERE TRANSFERRED TO THE UNITED STATES COAST
GUARD AIR STATION, NON-APPROPRIATED FUND ACTIVITY, CAPE COD,
MASSACHUSETTS, HEREINAFTER CALLED COAST GUARD. THE NAGE FILED THE
SUBJECT PETITION FOR AMENDMENT OF CERTIFICATION (AC) (CASE NO.
31-8863(AC)) SEEKING TO AMEND THE CERTIFICATION SO THAT THE ACTIVITY
THEREIN WOULD BE DESIGNATED AS THE "U.S. COAST GUARD EXCHANGE, U.S.
COAST GUARD AIR STATION, DEPARTMENT OF TRANSPORTATION, CAPE COD,
MASSACHUSETTS." THEREAFTER, THE COAST GUARD FILED THE SUBJECT RA
PETITION (CASE NO. 31-8890(RA)) WHICH, IN EFFECT, SOUGHT A DETERMINATION
BY THE ASSISTANT SECRETARY AS TO THE IMPACT OF THE AFOREMENTIONED
DEACTIVATION AND TRANSFER ON THE UNIT EXCLUSIVELY REPRESENTED BY THE
NAGE. /2/ THE NAGE FILED ALSO A PETITION FOR CLARIFICATION OF UNIT (CU)
(CASE NO. 31-9044(CU)) SEEKING TO CLARIFY ITS EXCLUSIVELY REPRESENTED
UNIT BY INCLUDING CERTAIN EMPLOYEES OF THE COAST GUARD'S GROCERY ANNEX,
MINIMART, AND PACKAGE STORE IN THE UNIT. /3/ BOTH THE CU AND AC
PETITIONS WOULD EXCLUDE THE EMPLOYEES OF THE NORTH TRURO AIR FORCE
STATION FROM THE UNIT OF COAST GUARD EMPLOYEES. THE NEW ENGLAND AREA
EXCHANGE, ARMY-AIR FORCE EXCHANGE SERVICE, HEREINAFTER CALLED AAFES, WAS
PERMITTED TO PARTICIPATE IN THESE PROCEEDINGS BECAUSE OF ITS INTEREST IN
DETERMINING WHICH LABOR ORGANIZATION, IF ANY, REPRESENTS ITS EMPLOYEES
LOCATED AT THE FACILITIES AT NORTH TRURO AIR FORCE STATION.
THE NAGE CONTENDS THAT THE COAST GUARD IS A SUCCESSOR-IN-INTEREST TO
THE OTIS AIR FORCE BASE EXCHANGE AT THE OTIS AIR FORCE BASE BECAUSE A
MAJORITY OF THE EMPLOYEES FORMERLY EMPLOYED BY THE AAFES AT THE
FACILITIES IN QUESTION WERE EMPLOYED AT THOSE FACILITIES AFTER THE
TRANSFER OF THE AAFES'S FACILITIES TO THE COAT GUARD; THAT THESE
EMPLOYEES PRESENTLY PERFORM ESSENTIALLY THE SAME TASKS THAT THEY
PERFORMED PRIOR TO THE TRANSFER; AND THAT THE PARTICULAR FACILITIES
INVOLVED PRESENTLY ARE UTILIZED FOR THE SAME MISSION UNDERTAKEN PREVIOUS
TO THE TRANSFER.
THE COAST GUARD, ON THE OTHER HAND, CONTENDS THAT IT HAS A GOOD FAITH
DOUBT THAT THE NAGE CURRENTLY REPRESENTS A MAJORITY OF THE EMPLOYEES IN
THE UNIT PROPOSED IN THE NAGE'S AC AND CU PETITIONS, AND THAT, MOREOVER,
SUCH A UNIT IS INAPPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION.
IN THIS REGARD, THE COAST GUARD ASSERTS THAT THE FORMER AAFES EMPLOYEES
WHO WERE HIRED BY THE COAST GUARD AFTER DEACTIVATION OF THE OTIS AIR
FORCE BASE EXCHANGE, AS WELL AS THOSE PHYSICAL FACILITIES WHICH HAD BEEN
A PART OF THE OTIS AIR FORCE BASE EXCHANGE PRIOR TO ITS DEACTIVATION,
HAVE BECOME A SUBORDINATE PART OF A LARGER ORGANIZATION WHICH HAS
UNIFORM PERSONNEL POLICIES AND PRACTICES. THE COAST GUARD TAKES THE
VIEW THAT ITS VARIOUS SUBORDINATE COMPONENTS, INCLUDING THOSE WHICH
ORIGINALLY WERE PART OF THE OTIS AIR FORCE BASE EXCHANGE, AND THOSE
WHICH WERE ESTABLISHED ORIGINALLY BY THE COAST GUARD ITSELF, ARE
INTERDEPENDENT AND SUBJECT TO THE OPERATIONAL DECISIONS OF COMMON
MANAGEMENT. THUS, THE COAST GUARD CONCLUDES THAT THE UNIT PROPOSED IN
THE NAGE'S AC AND CU PETITIONS WOULD NOT PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS, AND THAT SUCH A UNIT WOULD NOT CONTAIN
EMPLOYEES WHO SHARE A CLEAR AND DEFINABLE COMMUNITY OF INTEREST WHICH
WOULD BE SEPARATE AND DISTINCT FROM OTHER EMPLOYEES OF THE COAST GUARD.
THE COAST GUARD ALSO CONTENDS THAT THE TRANSFER OF FACILITIES IN
QUESTION CAUSED THE UNIT EXCLUSIVELY REPRESENTED BY THE NAGE TO BECOME
DEFUNCT, AND THAT, AS A RESULT, THE COAST GUARD DID NOT BECOME A
SUCCESSOR-IN-INTEREST WITH RESPECT TO THAT UNIT.
THE AAFES CONTENDS THAT THE EMPLOYEES OF THE NORTH TRURO AIR FORCE
STATION FACILITIES SHOULD NOT BE INCLUDED IN ANY UNIT FOUND TO BE
APPROPRIATE AT THE COAST GUARD INASMUCH AS THESE FACILITIES WERE NOT
TRANSFERRED TO THE COAST GUARD AND THE EMPLOYEES THEREIN HAVE REMAINED
EMPLOYEES OF THE AAFES. IN THIS LATTER REGARD, AT THE HEARING IN THIS
MATTER, THE PARTIES STIPULATED THAT THE EMPLOYEES AT THE NORTH TRURO AIR
FORCE STATION CONTINUED TO BE EMPLOYED BY THE AAFES AND, THEREFORE,
THESE EMPLOYEES DO NOT SHARE A COMMUNITY OF INTEREST WITH THE EMPLOYEES
OF THE COAST GUARD.
THE RECORD REVEALS THAT PRIOR TO THE AFOREMENTIONED DEACTIVATION OF
THE OTIS AIR FORCE BASE EXCHANGE ON SEPTEMBER 25, 1974, THE OTIS AIR
FORCE BASE EXCHANGE AT THE OTIS AIR FORCE BASE CONSISTED OF A MAIN
RETAIL STORE EMPLOYING 35 TO 40 PERSONS AND A SERVICE STATION EMPLOYING
APPROXIMATELY 10 PERSONS. /4/ AS OF THAT DATE, THE COAST GUARD, WHICH
WAS ALREADY IN OPERATION, CONSISTED OF A SMALL EXCHANGE WHICH OPERATED
ON A PART-TIME BASIS; TWO OFFICERS' CLUBS; A CHILD CARE CENTER; A
PACKAGE STORE FOR BEVERAGE SALES; AN ACCOUNTING AND PERSONNEL SECTION;
AND A GROCERY ANNEX. THE RECORD FURTHER INDICATES THAT ON OCTOBER 15,
1974, THE COAST GUARD OPENED AND BEGAN TO OPERATE ITS MAIN EXCHANGE AND
GAS STATION, AND THAT, SINCE THAT TIME, THE COAST GUARD ALSO HAS ADDED A
MAINTENANCE AND MORALE SUBSECTION AND A SMALL GARDEN SHOP.
THE RECORD SHOWS THAT THE AAFES AND THE COAST GUARD SIGNED AN
AGREEMENT ON OCTOBER 25 AND NOVEMBER 6, 1974, WHICH DESCRIBED THE TERMS
AND CONDITIONS UNDER WHICH THE AAFES WOULD TRANSFER TO THE COAST GUARD
THE ASSETS AND LIABILITIES OF THE PHYSICAL PLANT OF THE OTIS AIR FORCE
BASE EXCHANGE AT THE OTIS AIR FORCE BASE. THE AGREEMENT DID NOT PROVIDE
FOR THE TRANSFER OF ANY OF THE AAFES EMPLOYEES INTO THE COAST GUARD.
HOWEVER, IT DID PROVIDE, IN PART, THAT THE FORMER EMPLOYEES OF THE AAFES
WOULD BE EMPLOYED BY THE COAST GUARD "TO THE EXTENT PRACTICABLE IN
POSITIONS RELATED AS NEARLY AS POSSIBLE TO THOSE HELD AT TRANSFER DATE."
THE RECORD SHOWS THAT THE PARTIES INTERPRETED THEIR AGREEMENT TO MEAN
THAT THE EMPLOYEES OF THE AAFES AT THE OTIS AIR FORCE BASE WHO WERE
"RIF'D" AS A RESULT OF THE DEACTIVATION OF THE OTIS AIR FORCE BASE
EXCHANGE WOULD BE GIVEN PREFERENCE OVER OTHER EQUALLY SUITED APPLICANTS
FOR EMPLOYMENT AT THE COAST GUARD. IN THIS CONNECTION, THE RECORD
REVEALS THAT 48 EMPLOYEES LOST THEIR POSITIONS WITH THE AAFES DUE TO THE
DEACTIVATION OF THE FACILITIES AT THE OTIS AIR FORCE BASE; THAT ALL OF
THESE EMPLOYEES WERE RECOMMENDED BY THE AAFES FOR HIRING BY THE COAST
GUARD; BUT THAT ONLY 31 OF THESE EMPLOYEES SUBSEQUENTLY WERE HIRED BY
THE COAST GUARD. THE RECORD INDICATES ALSO THAT, PURSUANT TO THE
AFOREMENTIONED TRANSFER AGREEMENT, THE AAFES EMPLOYEES WHO WERE HIRED BY
THE COAST GUARD WERE NOT PERMITTED TO CARRY OVER TO THE COAST GUARD ANY
ANNUAL LEAVE WHICH THEY HAD ACCUMULATED WHILE EMPLOYED BY THE AAFES, AND
THAT, FURTHER, THESE EMPLOYEES WERE NOT ASSURED OF RETAINING THE SAME
POSITIONS OR RATES OF PAY WHICH THEY HAD ENJOYED WHILE EMPLOYED AT THE
AAFES. /5/ IN ADDITION TO THE FORMER AAFES EMPLOYEES HIRED BY THE COAST
GUARD, THE LATTER ALSO HIRED SEVEN PERSONS WHO HAD FORMERLY BEEN
EMPLOYED BY A COMMISSARY WHICH HAD BEEN AN APPROPRIATED FUND ACTIVITY OF
THE OTIS AIR FORCE BASE, AND WHICH ALSO HAD BEEN DEACTIVATED. THE
RECORD REVEALS THAT AS OF APRIL 1975, THE COAST GUARD CONSISTED OF 125
EMPLOYEES, INCLUDING THE AFOREMENTIONED FORMER EMPLOYEES OF THE AAFES
AND THE COMMISSARY, AS WELL AS EMPLOYEES WHO HAD BEEN HIRED FROM OTHER
SOURCES. OF THE 31 FORMER AAFES EMPLOYEES WHO WERE EMPLOYED BY THE
COAST GUARD, FIVE WERE EMPLOYED IN THE GROCERY ANNEX, WHICH CONSISTED OF
37 EMPLOYEES; FOUR WERE EMPLOYED IN THE GAS STATION, WHICH CONSISTED OF
NINE EMPLOYEES; ONE WAS EMPLOYED IN THE ACCOUNTING BRANCH, WHICH
CONSISTED OF NINE EMPLOYEES; AND 21 WERE EMPLOYED IN THE MAIN EXCHANGE,
WHICH CONSISTED OF 30 EMPLOYEES. /6/
THE RECORD REVEALS ALSO THAT MANY OF THE SUPERVISORY PERSONNEL OF THE
COAST GUARD HAD NOT FORMERLY BEEN EMPLOYEES OR SUPERVISORS AT THE AAFES.
THUS, THE MANAGER OF THE COAST GUARD MAIN EXCHANGE, THE MANAGER OF THE
COAST GUARD GROCERY ANNEX, THE SUPERVISOR OF THE COAST GUARD PACKAGE
STORE, AND THE SUPERVISOR OF THE COAST GUARD SERVICE STATION HAD NOT
BEEN EMPLOYEES OR SUPERVISORS AT THE AAFES. THE RECORD ALSO SHOWS THAT
AT LEAST FIVE EMPLOYEES HAVE BEEN TRANSFERRED ON A TEMPORARY OR
PERMANENT BASIS FROM ONE SEGMENT OF THE COAST GUARD TO ANOTHER,
INCLUDING AT LEAST ONE FORMER AAFES EMPLOYEE. MOREOVER, THE EMPLOYEES
OF THE COAST GUARD ARE SUBJECT TO UNIFORM PERSONNEL POLICIES AND
PROCEDURES ESTABLISHED UNDER HIGHER LEVEL COAST GUARD GUIDELINES FOR
NONAPPROPRIATED FUND ACTIVITIES. THUS, IT WAS ESTABLISHED THAT THE
AREAS OF CONSIDERATION FOR REDUCTION-IN-FORCE, HIRING, AND PROMOTION
INCLUDE ALL OF THE COAST GUARD; THE SAME GRIEVANCE, EMPLOYEE
EVALUATION, AND SICK LEAVE POLICIES APPLY TO ALL OF THE SEGMENTS OF THE
COAST GUARD; ALL OF THE EMPLOYEES OF THE COAST GUARD ARE ELIGIBLE TO
PARTICIPATE IN THE SAME GROUP INSURANCE PLAN; AND THE HEAD OF THE COAST
GUARD AND THE COMMANDING OFFICER, COAST GUARD AIR STATION, CAPE COD,
MASSACHUSETTS, SHARE RESPONSIBILITY FOR HIRING, FIRING AND PERSONNEL
ACTIONS. FURTHER, THE RECORD SHOWS THAT ACCOUNTING AND MAINTENANCE
FUNCTIONS ARE CENTRALIZED FOR THE ENTIRE COAST GUARD; THAT COMMON
EQUIPMENT AND PROCEDURES ARE UTILIZED FOR PURCHASING THROUGHOUT THE
COAST GUARD; AND THAT THE TRANSFER OF EMPLOYEES FROM ONE SEGMENT OF THE
COAST GUARD TO ANOTHER IS NECESSARY IN ORDER TO ACCOMMODATE FLUCTUATION
IN THE UTILIZATION OF THESE VARIOUS SEGMENTS BY THE CUSTOMER POPULATION.
BASED ON ALL OF THE FOREGOING CIRCUMSTANCES, I FIND THAT THE FORMER
EMPLOYEES OF THE AAFES WHO WERE HIRED BY THE COAST GUARD HAVE BEEN
INTEGRATED FUNCTIONALLY AND ADMINISTRATIVELY INTO THE COAST GUARD AND DO
NOT NOW SHOW A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST THAT IS
SEPARATE AND DISTINCT FROM OTHER EMPLOYEES OF THE COAST GUARD. THUS,
THE EVIDENCE ESTABLISHES THAT THE DEACTIVATION OF THE AAFES AND THE
TRANSFER OF ITS FACILITIES TO THE COAST GUARD DID NOT CONSTITUTE AN
ADMINISTRATIVE TRANSFER OF THE AAFES FUNCTIONS AND EMPLOYEES TO THE
COAST GUARD. RATHER, THE EVIDENCE ESTABLISHES THAT ONLY CERTAIN OF THE
AAFES' PHYSICAL FACILITIES WERE TRANSFERRED PURSUANT TO AN AGREEMENT
BETWEEN THE AAFES AND THE COAST GUARD; THAT THE FORMER EMPLOYEES OF THE
AAFES WERE NOT TRANSFERRED BY THE AGREEMENT TO THE COAST GUARD; THAT
ONLY SOME OF THE EMPLOYEES WHO HAD LOST THEIR POSITIONS WITH THE AAFES
WERE HIRED SUBSEQUENTLY BY THE COAST GUARD; THAT THE FORMER EMPLOYEES
OF THE AAFES CONSTITUTE APPROXIMATELY ONLY ONE QUARTER OF THE EMPLOYEE
COMPLEMENT OF THE COAST GUARD; THAT THE FORMER AAFES EMPLOYEES WERE
EMPLOYED IN A NUMBER OF THE COAST GUARD FUNCTIONS, SOME OF WHICH HAD NOT
BEEN PERFORMED BY THE AAFES; THAT THE COAST GUARD ADDED THE FUNCTIONS
OF THE FORMER AAFES FACILITIES TO THE PRE-EXISTING COAST GUARD
ORGANIZATION; AND THAT A NUMBER OF EMPLOYEES HAVE TRANSFERRED BETWEEN
DIFFERENT SEGMENTS OF THE COAST GUARD. MOREOVER, THE EVIDENCE
ESTABLISHES THAT MANY OF THE SUPERVISORY PERSONNEL OF THE COAST GUARD
HAD NOT FORMERLY BEEN EMPLOYEES OR SUPERVISORS OF THE AAFES; THAT THE
HEAD OF THE COAST GUARD FACILITY INVOLVED HEREIN AND THE COMMANDING
OFFICER OF THE COAST GUARD BASE ARE RESPONSIBLE FOR PERSONNEL POLICIES
AND PRACTICES FOR ALL OF THE COAST GUARD; THAT ALL OF THE EMPLOYEES OF
THE COAST GUARD, INCLUDING FORMER AAFES EMPLOYEES, ARE SUBJECT TO THE
SAME PERSONNEL POLICIES AND PRACTICES, INCLUDING SUCH MATTERS AS
GRIEVANCE PROCEDURES, GROUP INSURANCE, REDUCTION-IN-FORCE, SICK LEAVE,
EMPLOYEE EVALUATION, AND PROMOTION; AND THAT MAINTENANCE, ACCOUNTING,
AND PURCHASING ARE SUBJECT TO CENTRALIZED PROCEDURE AND CONTROL. UNDER
THESE CIRCUMSTANCES, I FIND THAT THE FORMER EMPLOYEES OF THE AAFES WHO
WERE HIRED BY THE COAST GUARD HAVE BEEN SO THOROUGHLY COMBINED AND
INTEGRATED INTO THE COAST GUARD THAT THEY DO NOT CONSTITUTE A
RECOGNIZABLE AND VIABLE UNIT BY THEMSELVES BUT, RATHER, NOW SHARE A
COMMUNITY OF INTEREST WITH ALL THE OTHER EMPLOYEES OF THE COAST GUARD.
/7/
I FIND FURTHER THAT THE EMPLOYEES OF THE COAST GUARD, INCLUDING THOSE
FORMERLY EMPLOYED BY THE AAFES, DO NOT SHARE A COMMUNITY OF INTEREST
WITH THE AAFES EMPLOYEES WHO HAVE REMAINED AT THE NORTH TRURO AIR FORCE
STATION. THE RECORD INDICATES, IN THIS REGARD, THAT THE AAFES
OPERATIONS AT THE NORTH TRURO AIR FORCE STATION CONTINUE TO BE PERFORMED
AT THAT LOCATION, UNDER THE SAME SUPERVISION AND DIRECTION AS PRIOR TO
THE DEACTIVATION OF THE OTIS AIR FORCE EXCHANGE AT THE OTIS AIR FORCE
BASE. THUS, I FIND THAT THE UNIT EXCLUSIVELY REPRESENTED BY THE NAGE
CONTINUE TO EXIST, ALBEIT REDUCED TO INCLUDE ONLY THE EMPLOYEES AT THE
NORTH TRURO AIR FORCE STATION. /8/ ACCORDINGLY, I SHALL AMEND THE
NAGE'S CERTIFICATION TO REFLECT THIS CHANGE.
UNDER THE PARTICULAR CIRCUMSTANCES HEREIN, I FIND IT APPROPRIATE TO
DISMISS BOTH THE NAGE'S CU PETITION AND THE COAST GUARD'S RA PETITION.
IN THIS REGARD, IT WAS NOTED THAT THE NAGE BY ITS CU PETITION SEEKS, IN
EFFECT, A DETERMINATION THAT SOME OF THE EMPLOYEES OF THE COAST GUARD
HAVE BEEN ADDED TO ITS EXISTING UNIT AT THE OTIS AIR FORCE BASE.
INASMUCH AS I HAVE FOUND THAT SUCH A UNIT DID NOT CONTINUE TO EXIST
AFTER THE DEACTIVATION OF THE OTIS AIR FORCE BASE EXCHANGE, IT FOLLOWS
THAT THE COAST GUARD EMPLOYEES MAY NOT BE CONSIDERED TO HAVE ACCRETED TO
ANY EXISTING CERTIFIED UNIT. THEREFORE, I SHALL DISMISS THE CU PETITION
IN CASE NO. 31-9044(CU).
WITH RESPECT TO THE RA PETITION IN CASE NO. 31-8890(RA), IT WAS NOTED
THAT, PURSUANT TO SECTION 202.2(B)(1) OF THE ASSISTANT SECRETARY'S
REGULATIONS, AN RA PETITION MAY BE FILED WHERE AN ELECTION IS SOUGHT TO
DETERMINE WHETHER A LABOR ORGANIZATION SHOULD CEASE TO BE THE EXCLUSIVE
REPRESENTATIVE BECAUSE IT MAY NO LONGER REPRESENT A MAJORITY OF THE
EMPLOYEES IN THE EXISTING UNIT, OR BECAUSE THE UNIT DOES NOT CONTINUE TO
BE APPROPRIATE DUE TO A SUBSTANTIAL CHANGE IN ITS CHARACTER AND SCOPE.
HOWEVER, NEITHER OF THESE CONDITIONS IS APPLICABLE IN THE INSTANT CASE.
THUS, THE INSTANT RA PETITION DOES NOT REPRESENT AN EXPRESSION OF GOOD
FAITH DOUBT AS TO MAJORITY REPRESENTATION IN THE EXISTING UNIT, AS THE
COAST GUARD DOES NOT CONTEND THAT THE AAFES UNIT AT THE OTIS AIR FORCE
BASE HAS CONTINUED IN EXISTENCE AFTER THE DEACTIVATION OF THE OTIS AIR
FORCE BASE EXCHANGE. RATHER, THE COAST GUARD HAS EXPRESSED A GOOD FAITH
DOUBT AS TO WHETHER THE NAGE REPRESENTS A MAJORITY OF THE EMPLOYEES IN A
NEWLY CREATED GROUPING OF EMPLOYEES IN WHICH FORMER EMPLOYEES OF THE
AAFES PREVIOUSLY REPRESENTED BY THE NAGE CONSTITUTE A MINORITY.
FURTHER, THE RECORD REFLECTS THAT A CHANGE IN THE CHARACTER AND SCOPE OF
AN EXISTING EXCLUSIVELY RECOGNIZED UNIT, SUCH AS WOULD WARRANT AN
ELECTION PURSUANT TO AN RA PETITION, HAS NOT OCCURRED IN THIS CASE.
RATHER, AS INDICATED ABOVE, THE OTIS AIR FORCE BASE EXCHANGE WAS
DEACTIVATED, ITS PHYSICAL FACILITIES AT THE OTIS AIR FORCE BASE WERE
TRANSFERRED TO THE COAST GUARD, AND SOME OF ITS FORMER EMPLOYEES WERE
HIRED BY THE COAST GUARD. IN MY VIEW, THIS COURSE OF EVENTS CANNOT
SERVE TO RESURRECT THE UNIT OF EXCLUSIVE RECOGNITION REPRESENTED BY THE
NAGE, EVEN IN ALTERED FORM, SO AS TO WARRANT AN ELECTION PURSUANT TO AN
RA PETITION. THUS, ALTHOUGH I HAVE CONSIDERED AN ELECTION PURSUANT TO
AN RA PETITION TO BE APPROPRIATE WHERE ONE OR MORE RECOGNIZED UNITS HAVE
BEEN COMBINED TO FORM A NEW UNIT CONTAINING ESSENTIALLY ALL OF THE
COMPONENTS OF THE RECOGNIZED UNITS, /9/ IN MY VIEW, SUCH AN ELECTION IS
NOT APPROPRIATE TO DECIDE A QUESTION CONCERNING REPRESENTATION WITH
RESPECT TO EMPLOYEES OF AN ACTIVITY WHO HAVE LITTLE OR NO TRACEABLE
CONNECTION TO ANY PRIOR UNIT OF EXCLUSIVE RECOGNITION.
IN THIS REGARD, IT SHOULD BE NOTED THAT ALTHOUGH AN RA PETITION IS AN
APPROPRIATE VEHICLE FOR AN ACTIVITY (OR AGENCY) TO SEEK A DETERMINATION
OF THE REPRESENTATIONAL STATUS OF EMPLOYEES IN A SUBSTANTIALLY CHANGED
UNIT, IT DOES NOT FOLLOW THAT AN ELECTION WILL BE APPROPRIATE IN EACH
INSTANCE WHERE, AS HERE, SOME OF AN ACTIVITY'S EMPLOYEES HAD BEEN
PREVIOUSLY EMPLOYED BY ANOTHER ACTIVITY IN AN EXCLUSIVELY RECOGNIZED
UNIT. IN MY VIEW, ELECTIONS IN NEWLY ESTABLISHED UNITS WHICH ARE NOT
SUBSTANTIALLY IDENTIFIABLE WITH ANY PRE-EXISTING UNITS BUT, RATHER,
ESSENTIALLY INVOLVE EMPLOYEES WHO HAVE BEEN UNREPRESENTED, SHOULD RESULT
ONLY FROM PETITIONS FILED BY LABOR ORGANIZATIONS SEEKING EXCLUSIVE
RECOGNITION IN SUCH UNITS. ACCORDINGLY, WHILE I HAVE CONSIDERED THE
COAST GUARD'S RA PETITION IN ORDER TO DETERMINE THE IMPACT OF THE
INSTANT DEACTIVATION AND TRANSFER OF FACILITIES ON THE UNIT REPRESENTED
BY THE NAGE, I FIND THAT THE PARTICULAR CIRCUMSTANCES HEREIN DO NOT
WARRANT AN ELECTION. THEREFORE, I SHALL DISMISS THE INSTANT RA
PETITION.
IT IS HEREBY ORDERED THAT THE PETITIONS IN CASE NOS. 31-8890(RA), AND
31-9044(CU) BE, AND THEY HEREBY ARE, DISMISSED.
IT IS FURTHER ORDERED THAT THE CERTIFICATION IN CASE NO.
31-4306(RO), ISSUED ON JUNE 28, 1971, TO THE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R1-178 BE, AND IT HEREBY IS, AMENDED BY
SUBSTITUTING THEREIN AS THE DESIGNATION OF THE ACTIVITY, ARMY AND AIR
FORCE EXCHANGE SERVICE, NEW ENGLAND AREA EXCHANGE, NORTH TRURO AIR FORCE
STATION, MASSACHUSETTS.
DATED, WASHINGTON, D.C.
SEPTEMBER 30, 1975
/1/ THE CERTIFICATION OF REPRESENTATIVE DISCLOSES THAT THE UNIT
INCLUDED "ALL REGULAR FULL-TIME AND REGULAR PART-TIME HPP (HOURLY PAY
PLAN) AND CPP (COMMISSION PAY PLAN) NON-SUPERVISORY EMPLOYEES, INCLUDING
OFF-DUTY MILITARY PERSONNEL IN EITHER OF THE FOREGOING CATEGORIES,
EMPLOYED AT THE OTIS AIR FORCE BASE EXCHANGE AT THE OTIS AIR FORCE BASE,
MASS., AND NORTH TRURO AFS, MASS.," AND EXCLUDED "TEMPORARY FULL-TIME;
TEMPORARY PART-TIME AND CASUAL EMPLOYEES; MANAGERIAL TRAINEES;
EMPLOYEES ENGAGED IN PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY; PROFESSIONAL EMPLOYEES. GUARDS, WATCHMEN, AND MILITARY
PERSONNEL ASSIGNED TO THE OTIS AIR FORCE BASE EXCHANGE OPERATIONS AS A
MILITARY DUTY."
/2/ THE RA PETITION DESCRIBES THE UNIT CLAIMED TO BE APPROPRIATE AS
INCLUDING "ALL REGULAR FULL-TIME AND REGULAR PART-TIME NON-APPROPRIATED
FUND EMPLOYEES, INCLUDING OFF-DUTY MILITARY PERSONNEL EMPLOYED BY THE
U.S. COAST GUARD AT THE U.S. COAST GUARD AIR STATION, CAPE COD, MASS.,"
AND AS EXCLUDING "ALL MANAGERIAL OFFICIALS, SUPERVISORY EMPLOYEES,
EMPLOYEES ENGAGED IN NON-APPROPRIATED FUNDS PERSONNEL WORK IN OTHER THAN
A CLERICAL CAPACITY, AND GUARDS, AS DEFINED IN E.O. 11491, AS AMENDED."
/3/ THE RECORD DISCLOSES THAT THE MINIMART IS ENCOMPASSED WITHIN THE
GROCERY ANNEX IN THE COAST GUARD ORGANIZATION. THE RECORD REVEALS
FURTHER THAT THERE WAS NO GROCERY ANNEX AT THE OTIS AIR FORCE BASE
EXCHANGE AND THAT THE GROCERY ANNEX WAS ESTABLISHED BY THE COAST GUARD.
THE CU PETITION HEREIN REFERS TO A "BEVERAGE STORE" AND "AFTER-HOURS"
STORE, BUT THE RECORD INDICATES THAT THESE TERMS ARE, IN FACT,
REFERENCES TO THE PACKAGE STORE AND MINIMART, RESPECTIVELY.
/4/ THE AAFES FACILITIES AT THE NORTH TRURO AIR FORCE STATION
CONSISTED OF A SMALL RETAIL STORE AND A SERVICE STATION, EMPLOYING SOME
FIVE INDIVIDUALS.
/5/ THE TRANSFER AGREEMENT PROVIDED ALSO, IN PART, THAT THESE
EMPLOYEES WOULD BE ALLOWED TO TRANSFER A MAXIMUM OF 60 HOURS OF SICK
LEAVE FROM THE AAFES TO THE COAST GUARD, AND THAT THEIR SENIORITY WOULD
BE CALCULATED BY THE COAST GUARD BASED ON THE DATES ON WHICH THEY BEGAN
TO ACCUMULATE SENIORITY WITH THE AAFES.
/6/ THE EVIDENCE INDICATES THAT SEVEN PERSONS WHO HAD FORMERLY BEEN
EMPLOYED BY THE COMMISSARY WERE HIRED BY THE COAST GUARD FOR POSITIONS
IN THE GROCERY ANNEX.
/7/ CF. NAVAL EDUCATION AND TRAINING CENTER (NETC), NEWPORT, RHODE
ISLAND, A/SLMR NO. 496 AND U.S. DEPARTMENT OF TRANSPORTATION, FEDERAL
AVIATION ADMINISTRATION, NATIONAL AVIATION FACILITIES EXPERIMENTAL
CENTER, ATLANTIC CITY, NEW JERSEY, A/SLMR NO. 482. THERE IS CURRENTLY
NO EXCLUSIVE REPRESENTATIVE AT THE COAST GUARD FACILITY INVOLVED HEREIN.
/8/ SEE HEADQUARTERS, U.S. ARMY AVIATION SYSTEMS COMMAND, ST. LOUIS,
MISSOURI, A/SLMR NO. 160. CF. UNITED STATES DEPARTMENT OF DEFENSE,
DEPARTMENT OF THE NAVY, NAVAL AIR RESERVE TRAINING UNIT, MEMPHIS,
TENNESSEE, A/SLMR NO. 106.
/9/ SEE IDAHO PANHANDLE NATIONAL FORESTS, UNITED STATES DEPARTMENT OF
AGRICULTURE, A/SLMR NO. 394.
5 A/SLMR 560; P. 604; CASE NO. 72-4959; SEPTEMBER 30, 1975.
U.S. MARINE CORPS AIR STATION,
EL TORO
A/SLMR NO. 560
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1881 (AFGE)
ALLEGING ESSENTIALLY THAT THE RESPONDENT VIOLATED SECTION 19(A)(1), (2)
AND (6) OF THE ORDER BY VIRTUE OF ITS ACTIONS IN REMOVING ONE EMPLOYEE,
A MAINTENANCE SCHEDULER, FROM PAYROLL UNION DUES DEDUCTION WITHOUT PRIOR
CONSULTATION WITH THE AFGE, WHICH WAS THE EXCLUSIVE REPRESENTATIVE OF
THE RESPONDENT'S WAGE GRADE EMPLOYEES.
NOTING THAT THE MAINTENANCE SCHEDULER INVOLVED HEREIN WAS EMPOWERED
WITH THE AUTHORITY TO, AMONG OTHER THINGS, HIRE AND/OR EVALUATE THE
PERFORMANCE OF OTHER EMPLOYEES, THE ADMINISTRATIVE LAW JUDGE CONCLUDED
THAT THIS INDIVIDUAL WAS A SUPERVISOR WITHIN THE MEANING OF SECTION 2(C)
OF THE ORDER. ACCORDINGLY, HE CONCLUDED THAT THE RESPONDENT HAD NOT
VIOLATED SECTION 19(A)(1), (2) AND (6) OF THE ORDER BY ITS TERMINATION
OF DUES WITHHOLDING FOR THE MAINTENANCE SCHEDULER AS THE RESPONDENT'S
OBLIGATION TO MEET AND CONFER WITH THE EXCLUSIVE REPRESENTATIVE RAN ONLY
TO CONDITIONS AND POLICIES AFFECTING UNIT EMPLOYEES AND NOT SUPERVISORS.
THE ASSISTANT SECRETARY AGREED WITH THE ADMINISTRATIVE LAW JUDGE'S
CONCLUSION THAT THE MAINTENANCE SCHEDULER INVOLVED HEREIN WAS A
SUPERVISOR WITHIN THE MEANING OF THE ORDER. ACCORDINGLY, AS THERE WAS
NO OBLIGATION TO MEET AND CONFER CONCERNING THE TERMINATION OF THE DUES
WITHHOLDING, HE ORDERED THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
U.S. MARINE CORPS AIR STATION,
EL TORO
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1881
ON JUNE 26, 1975, ADMINISTRATIVE LAW JUDGE BURTON S. STERNBURG ISSUED
HIS REPORT AND RECOMMENDATION IN THE ABOVE ENTITLED PROCEEDING FINDING
THAT THE RESPONDENT HAD NOT ENGAGED IN THE ALLEGED UNFAIR LABOR
PRACTICES AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS
ENTIRETY.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE SUBJECT CASE, /1/ I HEREBY
ADOPT THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, /2/ AND
RECOMMENDATION.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 72-4959 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 30, 1975
/1/ THE COMPLAINANT FILED UNTIMELY EXCEPTIONS WHICH HAVE NOT BEEN
CONSIDERED.
/2/ THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT EMPLOYEE GREIGO WAS A
SUPERVISOR WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER BECAUSE,
AMONG OTHER THINGS, HE HAD THE AUTHORITY TO "HIRE AND/OR EVALUATE THE
PERFORMANCE OF OTHER EMPLOYEES." UNDER THE CIRCUMSTANCES HEREIN, I AGREE
THAT GREIGO IS A SUPERVISOR WITHIN THE MEANING OF THE ORDER INASMUCH AS
THE EVIDENCE ESTABLISHES THAT HE POSSESSES THE AUTHORITY TO HIRE OTHER
EMPLOYEES OR EFFECTIVELY RECOMMEND SUCH ACTION. MOREOVER, IT SHOULD BE
NOTED THAT EXECUTIVE ORDER 11838 (ISSUED SUBSEQUENT TO THE FILING OF THE
COMPLAINT IN THE INSTANT CASE) AMENDED EXECUTIVE ORDER 11491 TO
ELIMINATE PERFORMANCE EVALUATION AS A SOLE CRITERION FOR DETERMINING
SUPERVISORY STATUS. HOWEVER, THE AUTHORITY TO EVALUATE THE PERFORMANCE
OF OTHER EMPLOYEES MAY BE CONSIDERED IN CONJUNCTION WITH OTHER AUTHORITY
VESTED IN AN INDIVIDUAL IN DETERMINING AN EMPLOYEE'S SUPERVISORY STATUS.
SEE REPORT AND RECOMMENDATION OF THE FEDERAL LABOR RELATIONS COUNCIL
(JANUARY 1975). SEE ALSO UNITED STATES FOREST SERVICE, SALMON NATIONAL
FOREST, SALMON, IDAHO, A/SLMR NO. 556.
IN THE MATTER OF
U.S. MARINE CORPS AIR STATION, EL TORO
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1881
EDWARD T. BORDA, ESQUIRE
DEPARTMENT OF NAVY, LABOR DISPUTES
AND APPEALS SECTION, OFFICE OF
CIVILIAN MANPOWER MANAGEMENT
WASHINGTON, D.C. 20390
RAYMOND J. MALLOY, ESQUIRE
ASSISTANT GENERAL COUNSEL
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO
1325 MASSACHUSETTS AVENUE, N.W.
WASHINGTON, D.C. 20005
BEFORE: BURTON S. STERNBURG
PURSUANT TO AN AMENDED COMPLAINT FIRST FILED ON OCTOBER 1, 1974,
UNDER EXECUTIVE ORDER 11491, AS AMENDED, BY LOCAL 1881, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, HEREINAFTER CALLED THE
UNION OR COMPLAINANT, AGAINST THE U.S. MARINE CORPS AIR STATION, EL
TORO, HEREINAFTER CALLED THE AGENCY OR RESPONDENT, A NOTICE OF HEARING
ON COMPLAINT WAS ISSUED BY THE ASSISTANT REGIONAL DIRECTOR FOR THE SAN
FRANCISCO, CALIFORNIA REGION ON MARCH 27, 1975.
THE COMPLAINT ALLEGES, IN SUBSTANCE, THAT RESPONDENT VIOLATED
SECTIONS 19(A)(1), (2) AND (6) OF THE EXECUTIVE ORDER BY VIRTUE OF ITS
ACTIONS IN REMOVING MR. RUMALDO J. GRIEGO FROM PAYROLL UNION DUES
DEDUCTION WITHOUT PRIOR CONSULTATION WITH THE UNION WHICH IS THE
EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES. /1/
A HEARING WAS HELD IN THE CAPTIONED MATTER ON APRIL 24, 1975, IN
SANTA ANA, CALIFORNIA. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES INVOLVED HEREIN.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATIONS OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATIONS:
THE UNION IS THE RECOGNIZED EXCLUSIVE REPRESENTATIVE OF "WAGE BOARD
EMPLOYEES OF MARINE CORPS AIR STATION, EL TORO, EXCEPT THOSE SUPERVISORY
AND MANAGEMENT OFFICIALS EXCLUDED BY SECTION 10(B), EXECUTIVE ORDER
11491, AS AMENDED".
THE UNION AND THE AGENCY ARE PARTIES TO A COLLECTIVE BARGAINING
AGREEMENT DATED FEBRUARY 8, 1974, AND A APRIL 2, 1974, "MEMORANDUM
AGREEMENT" APPLICABLE TO PAYROLL DEDUCTIONS FOR UNION DUES. THIS LATTER
AGREEMENT PROVIDES IN SECTION 4, TERMINATION OF ALLOTMENT AS FOLLOWS:
(A) AN EMPLOYEE'S VOLUNTARY ALLOTMENT FOR PAYMENT OF HIS UNION DUES
WILL BE TERMINATED WITH
THE START OF THE FIRST PAY PERIODS FOLLOWING THE PAY PERIOD IN WHICH
ANY OF THE FOLLOWING
OCCUR:
(2) WHEN AN EMPLOYEE LEAVES THE UNIT AS A RESULT OF ANY TYPE OF
SEPARATION, TRANSFER, OR
OTHER PERSONNEL ACTION (EXCEPT TEMPORARY PROMOTION OR DETAIL).
THE AFOREMENTIONED "MEMORANDUM OF AGREEMENT" MAKES NO PROVISION FOR
"NOTICE" TO THE UNION IN THE EVENT THAT AN EMPLOYEE'S VOLUNTARY
ALLOTMENT IS TERMINATED IN ACCORDANCE WITH SECTION 4(A)(2) QUOTED ABOVE.
ON MARCH 28, 1974, MR. GRIEGO, THEN PRESIDENT OF LOCAL 1881, WAS
TEMPORARILY PROMOTED TO THE POSITION OF MAINTAINING SCHEDULER (WD-7).
SUBSEQUENTLY, ON MAY 12, 1974, MR. GRIEGO'S PROMOTION WAS MADE
PERMANENT. THEREAFTER, IN ACCORDANCE WITH THE MEMORANDUM OF AGREEMENT
CONCERNING ALLOTMENT FOR UNION DUES AND WITHOUT ANY PRIOR NOTICE TO THE
UNION, THE RESPONDENT TERMINATED MR. GRIEGO'S UNION DUES DEDUCTION ON
THE PAYROLL FOR THE PERIOD BEGINNING JUNE 9, 1974, AND ENDING JUNE 22,
1974. ON THE SAME PAYROLL, THREE OTHER UNION MEMBERS HAD THEIR UNION
DEDUCTIONS TERMINATED BECAUSE OF PROMOTIONS TO POSITIONS OUTSIDE THE
UNIT. THE UNION DOES NOT CONTEST THE VALIDITY OF THE DUES DEDUCTION
TERMINATED BECAUSE OF PROMOTIONS TO POSITIONS OUTSIDE THE UNIT. THE
UNION DOES NOT CONTEST THE VALIDITY OF THE DUES DEDUCTION TERMINATIONS
OF THESE LATTER THREE EMPLOYEES BECAUSE IT BELIEVES THAT THEIR NEW
POSITIONS ARE IN FACT SUPERVISORY AND DEFINITELY OUTSIDE THE UNIT. /2/
ACCORDING TO THE CREDITED TESTIMONY OF SUPERINTENDENT BERGSTROM AND
EDWARD POST AND PAUL DEARTH, FORMER MAINTENANCE SCHEDULERS AND GRIEGO'S
PREDECESSORS, IT HAS ALSO BEEN THE DUTY AND/OR RESPONSIBILITY OF THE
MAINTENANCE SCHEDULER TO SUPERVISE THREE SHOP PLANNERS /3/ AND ONE
CLERICAL. IN SUCH CAPACITY, THE MAINTENANCE SCHEDULER, AMONG OTHER
THINGS, APPRAISES THE FOUR EMPLOYEES, APPROVES LEAVE REQUESTS AND HIRES
AND/OR SITS ON SELECTION PANELS FOR REPLACEMENT OR PROMOTIONS.
ADDITIONALLY, THE MAINTENANCE SCHEDULER ATTENDS BI-WEEKLY MEETINGS OF
THE FOREMAN AND SUPERINTENDENT WHEREIN SHOP POLICY AND PLANNING ARE
DISCUSSED. ALSO, THE MAINTENANCE SCHEDULER ENJOYS PARKING PRIVILEGES
AND MEMBERSHIP AND/OR USE OF THE OFFICERS CLUB ALONG WITH OTHER
SUPERVISORY EMPLOYEES OF THE AGENCY.
MR. GRIEGO ACKNOWLEDGED THAT SUBSEQUENT TO BEING PROMOTED HE HAD BEEN
INFORMED OF THE ABOVE SUPERVISORY FUNCTIONS AND THAT HE DID ON ONE
OCCASION HIRE AND/OR EFFECTIVELY RECOMMEND A WAREHOUSEMAN AS A TEMPORARY
REPLACEMENT FOR A SICK SHOP PLANNER. HOWEVER, MR. GRIEGO TESTIFIED THAT
SINCE THE SHOP PLANNERS AND CLERKS HAVE MANY YEARS OF EXPERIENCE IN
THEIR RESPECTIVE JOBS, THERE IS VERY LITTLE, IF ANY, SUPERVISION
PRACTICED BY HIM IN HIS JOB OF SCHEDULER. FURTHER, ACCORDING TO MR.
GRIEGO, HE IS A MERE CONDUIT FOR JOB ORDERS AND NOT A SUPERVISOR. IN
FURTHER SUPPORT OF THIS CONTENTION, MR. GRIEGO POINTED OUT THAT HIS WAGE
CLASSIFICATION IS A WD LIKE ALL RANK AND FILE EMPLOYEES RATHER THAN THE
WM NORMALLY CARRIED BY SUPERVISORS. IN THIS LATTER CONTEXT, THE RECORD
INDICATES THAT CLASSIFICATIONS ARE GIVEN TO VARIOUS JOBS SOLELY UPON THE
BASIS OF WHERE THE PRIMARY DUTIES OF THE PARTICULAR JOB LIE AND HAVE
NOTHING TO DO WITH ANY POSSIBLE SUPERVISORY RESPONSIBILITIES INCLUDED
THEREIN. THUS, ACCORDING TO MR. COLGON, THE AGENCY'S PRINCIPAL
CLASSIFIER, THE HIGHEST OR PRIMARY SKILL INVOLVED IN MR. GRIEGO'S JOB IS
MAINTENANCE SCHEDULING, HENCE THE CLASSIFICATION "WD".
SECTION 2(C) OF EXECUTIVE ORDER 11491, AS AMENDED, PROVIDED AS OF
JUNE 22, 1974, THE DATE OF THE EVENTS UNDERLYING THE INSTANT COMPLAINT,
AS FOLLOWS:
"SUPERVISOR" MEANS AN EMPLOYEE HAVING AUTHORITY IN THE INTEREST OF
THE AGENCY, TO HIRE,
TRANSFER, SUSPEND, LAY OFF, RECALL, PROMOTE, DISCHARGE, ASSIGN,
REWARD, DISCIPLINE OTHER
EMPLOYEES, OR RESPONSIBILITY TO DIRECT THEM, OR TO EVALUATE THEIR
PERFORMANCE, OR TO ADJUST
THEIR GRIEVANCES, OR EFFECTIVELY TO RECOMMEND SUCH ACTION, IF IN
CONNECTION WITH THE FOREGOING
THE EXERCISE OF AUTHORITY IS NOT OF A MERELY ROUTINE OR CLERICAL
NATURE, BUT REQUIRES THE USE
OF INDEPENDENT JUDGEMENT.
IN INTERPRETING THE AFORECITED PROVISION, THE FEDERAL LABOR RELATIONS
COUNCIL AND THE ASSISTANT SECRETARY OF LABOR FOR LABOR MANAGEMENT
RELATIONS COUNCIL AND THE ASSISTANT SECRETARY OF LABOR FOR LABOR
MANAGEMENT RELATIONS HAVE BOTH HELD THAT INASMUCH AS SECTION 2(C) OF THE
ORDER IS WRITTEN IN THE DISJUNCTIVE, THE EXERCISE OF ANY OF THE
FUNCTIONS SET FORTH IN SECTION 2(C) BY AN EMPLOYEE WOULD MAKE THE
EMPLOYEE A SUPERVISOR WITHIN THE MEANING OF THE ORDER. UNITED STATES
NAVAL WEAPONS CENTER, CHINA LAKE, CALIFORNIA, A/SLMR, NO. 128, FLRC NO.
72A-11: UNITED STATES DEPARTMENT OF AGRICULTURE, NORTHERN MARKETING AND
NUTRITION RESEARCH DIVISION, PEORIA, ILLINOIS, A/SLMR NO. 120. THE
FEDERAL LABOR RELATIONS COUNCIL HAS FURTHER HELD IN UNITED STATES NAVAL
WEAPONS CENTER, SUPRA, THAT AN INDIVIDUAL NEED NOT HAVE UNQUALIFIED OR
UNREVIEWED AUTHORITY OVER THE FUNCTIONS SET FORTH IN SECTION 2(C) IN
ORDER TO BE FOUND A SUPERVISOR.
IN VIEW OF THE FOREGOING, AND SINCE MR. GRIEGO IN HIS POSITION OF
MAINTENANCE SCHEDULER IS EMPOWERED WITH THE AUTHORITY TO, AMONG OTHER
THINGS, HIRE AND/OR EVALUATE THE PERFORMANCE OF OTHER EMPLOYEES, I FIND
MR. GRIEGO TO BE A SUPERVISOR WITHIN THE MEANING OF SECTION 2(C) OF THE
ORDER. ACCORDINGLY, AND SINCE THE RESPONDENT'S OBLIGATION TO CONSULT
AND CONFER WITH THE UNION RUNS ONLY TO CONDITIONS AND POLICIES AFFECTING
UNIT EMPLOYEES AND NOT SUPERVISORS, NO BASIS EXISTS FOR A 19(A)(1), (2)
AND (6) FINDING PREDICATED SOLELY UPON RESPONDENT'S ACTION IN
UNILATERALLY DROPPING MR. GRIEGO FROM PAYROLL UNION DUES DEDUCTIONS
WITHOUT PRIOR CONSULTATION WITH THE UNION. CF. UNITED STATES
DEPARTMENT OF THE NAVY, NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY.
A/SLMR NO. 400. /4/
HAVING FOUND THAT RESPONDENT HAS NOT ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTIONS 19(A)(1), (2) AND (6) OF EXECUTIVE ORDER 11491,
AS AMENDED, I RECOMMEND THAT THE COMPLAINT HEREIN BE DISMISSED IN ITS
ENTIRETY.
DATED: JUNE 26, 1975
WASHINGTON, D.C.
/1/ DURING THE COURSE OF THE HEARING, COMPLAINANT WAS, UPON MOTION
UNOPPOSED BY THE RESPONDENT, ALLOWED TO AMEND THE COMPLAINT DATED
10/1/74, TO INCLUDE 19(A)(2) AND 19(A)(6) ALLEGATIONS BASED SOLELY ON
THE EVENTS SET FORTH IN THE ORIGINAL COMPLAINT.
/2/ HOWEVER, WITH RESPECT TO MR. GRIEGO, IT IS THE UNION'S CONTENTION
THAT MR. GRIEGO'S NEW POSITION IS NOT OF A SUPERVISORY CHARACTER AND
HENCE NOT OUTSIDE THE UNIT.
/3/ THE SHOP PLANNERS ARE RESPONSIBLE FOR PURCHASING OR OBTAINING THE
NECESSARY ITEMS TO COMPLETE A SCHEDULED MAINTENANCE JOB. ONCE THE
NECESSARY ITEMS ARE ASSEMBLED, THE PARTICULAR DEPARTMENT OR CRAFT IS
THEN GIVEN THE GREEN LIGHT TO PROCEED WITH THE JOB. IT IS THE
MAINTENANCE SCHEDULER'S RESPONSIBILITY TO ASSIGN THE JOBS TO THE SHOP
PLANNERS AND DECIDE ON PRIORITIES ETC.
/4/ CONTRARY TO COMPLAINANT'S COUNSEL, I FIND NO REQUIREMENT IN
EITHER THE ORDER OR THE RULES AND REGULATIONS ISSUED THEREUNDER WHICH
COMPELS AN AGENCY TO RESOLVE THE QUESTION OF AN EMPLOYEE'S SUPERVISORY
STATUS THROUGH THE MEDIUM OF A PETITION FOR CLARIFICATION. SUCH
PETITION IS GENERALLY RESERVED FOR THE RESOLUTION OF PROBLEMS AND/OR
QUESTIONS OF UNIT DETERMINATION. WHILE I AGREE WITH COMPLAINANT'S
COUNSEL THAT PRIOR CONSULTATION WITH, OR NOTICE TO, THE UNION WOULD LEAD
TO A MORE HARMONIOUS RELATIONSHIP, THE FACT REMAINS THAT CONSULTATION OF
THIS NATURE IS ONLY REQUIRED WITH RESPECT TO CHANGES AFFECTING UNIT
PERSONNEL. ONCE AN EMPLOYEE BECOMES A SUPERVISOR HE, IN ACCORDANCE WITH
THE PROSCRIPTIONS OF THE EXECUTIVE ORDER, LOSES THE PRIVILEGES AND/OR
BENEFITS BENEFITS ACCORDED UNIT PERSONNEL, SUCH AS DUES DEDUCTIONS AND
THE RIGHT TO UNION REPRESENTATION. ACCORDINGLY, AN AGENCY ACTS AT ITS
PERIL WHEN IT UNILATERALLY DETERMINES SUPERVISORY STATUS, SINCE AN
ERRONEOUS DETERMINATION COULD WELL SUPPORT A VIOLATION OF SECTIONS
19(A)(1) AND (6) OF THE ORDER. HOWEVER, AS NOTED ABOVE, SUCH IS NOT THE
CASE HEREIN.
5 A/SLMR 559; P. 599; CASE NO. 70-4524(RO); SEPTEMBER 16, 1975.
DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION SERVICES
REGION, SAN FRANCISCO
A/SLMR NO. 559
THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2723 (AFGE), SOUGHT TO REPRESENT A UNIT OF ALL EMPLOYEES OF THE
DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR) HEADQUARTERS,
BURLINGAME, CALIFORNIA. IN THE ALTERNATIVE, IT WAS WILLING TO INCLUDE
IN THE PETITIONED FOR UNIT THE FIVE DEFENSE CONTRACT ADMINISTRATION
SERVICES OFFICES (DCASO'S) IN THE SAN FRANCISCO BAY AREA AND THE HAWAII
RESIDENCY OFFICE. THE ACTIVITY CONTENDED THAT THE CLAIMED UNIT WAS NOT
APPROPRIATE BECAUSE IT WOULD RESULT IN FRAGMENTATION OF THE DCASR WITH
AN UNKNOWN NUMBER OF POSSIBLE FUTURE UNITS CARVED OUT OF RESIDUAL
SEGMENTS OF THE DCASR, AND THAT THE UNIT SOUGHT WOULD NOT PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. FURTHER, IT
ASSERTED THAT THE ONLY APPROPRIATE UNIT WAS ONE COMPOSED OF ALL ELIGIBLE
EMPLOYEES OF THE DCASR.
THE ASSISTANT SECRETARY CONCLUDED THAT THE PROPOSED BROADLY BASED
ALTERNATIVE UNIT, WHICH ENCOMPASSED ALL HEADQUARTERS EMPLOYEES AS WELL
AS THE FIVE DCASO'S WITHIN THE SAME COMMUTING AREAS AND THE HAWAII
RESIDENCY OFFICE, WAS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER THE ORDER. IN THIS CONNECTION, IT WAS NOTED THAT ALL
EMPLOYEES OF THE DCASR PERFORM THEIR DUTIES PURSUANT TO POLICIES AND
PROCEDURES ESTABLISHED BY THE REGIONAL HEADQUARTERS AND ARE SUBJECT TO
UNIFORM POLICIES AND JOB BENEFITS; THAT SIMILAR JOB CLASSIFICATIONS TO
SOME OF THESE FOUND IN THE HEADQUARTERS ARE FOUND IN THE FIVE DCASO'S
AND THE HAWAII RESIDENCY OFFICE; THAT THERE IS AN ADMINISTRATIVE AND
FUNCTIONAL RELATIONSHIP BETWEEN THE DCASO'S AND THE DCASD'S, WITH THE
HEADQUARTERS ACTING AS A DCASD TO THE FIVE DCASO'S AND THE HAWAII
RESIDENCY OFFICE; THAT THERE ARE REASSIGNMENTS BETWEEN HEADQUARTERS AND
THE DCASO'S, DEPENDING UPON THE NEED IN TERMS OF SHIFTING WORK LOADS;
AND THAT THERE IS EMPLOYEE CONTACT BETWEEN HEADQUARTERS AND THE FIVE
DCASO'S AND THE HAWAII RESIDENCY WITH TRAINING SESSIONS FOR CERTAIN
EMPLOYEES LOCATED IN THE FIVE DCASO'S HELD AT HEADQUARTERS. UNDER THESE
CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT THERE WAS A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST AMONG THE EMPLOYEES IN THE
HEADQUARTERS AND THE DCASO'S AND THE HAWAII RESIDENCY OFFICE.
FURTHER, THE ASSISTANT SECRETARY FOUND THAT SUCH A UNIT WOULD PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS, CONTRARY TO THE
ACTIVITY'S POSITION, BASED PRIMARILY ON ITS ASSESSMENTS OF THE COSTS OF
LESS THAN A REGION-WIDE UNIT, WHICH HE CONCLUDED WERE SPECULATIVE AND
CONJECTURAL. HE NOTED THAT IN MAKING SUCH A DETERMINATION, HE WAS
COGNIZANT OF THE FEDERAL LABOR RELATIONS COUNCIL'S (FLRC) RATIONALE
REGARDING THE RESPONSIBILITY OF THE ASSISTANT SECRETARY TO MAKE
AFFIRMATIVE FINDINGS WITH RESPECT TO EACH OF THE UNIT CRITERIA SET FORTH
IN SECTION 10(B) OF THE ORDER. IN THIS REGARD, HE NOTED THAT FLRC'S
FINDING IN NEGOTIABILITY DECISIONS THAT ECONOMIC COST FACTORS WERE NOT
THE SOLE CRITERION IN DETERMINING EFFICIENCY AND ECONOMY WITHIN THE
MEANING OF SECTION 12(B) OF THE ORDER.
THUS, THE FLRC HAS RECOGNIZED THAT THE TANGIBLE AND INTANGIBLE
BENEFITS TO EMPLOYEES AND ACTIVITIES RESULTING FROM EMPLOYEE
REPRESENTATION BY A LABOR ORGANIZATION CAN RESULT IN IMPROVED EFFICIENCY
OF AGENCY OPERATIONS, DESPITE INCREASED COST FACTORS. UNDER THE
CIRCUMSTANCES HEREIN, THE ASSISTANT SECRETARY CONCLUDED THAT THE
ALTERNATIVE PROPOSED EMPLOYEE UNIT WOULD PROMOTE THE EFFICIENCY OF
AGENCY OPERATIONS, AND COULD, IN HIS OPINION, RESULT IN ACTUAL ECONOMIC
SAVINGS AND INCREASED PRODUCTIVITY DUE TO THE HOMOGENEITY OF ITS
COMPOSITION.
THE ASSISTANT SECRETARY ALSO FOUND THAT THE ALTERNATIVE PROPOSED UNIT
WOULD PROMOTE EFFECTIVE DEALINGS, AS SUCH UNIT ORGANIZATIONALLY INCLUDED
THE INDIVIDUALS MOST CONCERNED WITH LABOR-MANAGEMENT RELATIONS, FISCAL
MATTERS, AND THE DIRECTION OF OPERATIONS. HE FURTHER FOUND THAT A
CLAIMED UNIT MAY BE APPROPRIATE AND BE CONSIDERED TO PROMOTE EFFECTIVE
DEALINGS, AS WELL AS EFFICIENCY OF AGENCY OPERATIONS, EVEN THOUGH IT
DOES NOT INCLUDE ALL EMPLOYEES DIRECTLY UNDER THE AREA OR REGIONAL HEAD,
OR OTHER ACTIVITY OFFICIALS WHO HAVE FINAL OR INITIATING AUTHORITY WITH
RESPECT TO SUCH PERSONNEL, FISCAL, AND PROGRAMMATIC MATTERS. IN THIS
REGARD, IT WAS NOTED THAT IT IS CLEARLY CONTEMPLATED BY THE ORDER THAT
LABOR-MANAGEMENT NEGOTIATIONS COULD PROPERLY BE CONDUCTED AT LOWER THAN
AGENCY, REGIONAL, OR DISTRICT LEVELS, AND THAT UNITS OF LESS BROAD
PROPORTIONS COULD BE APPROPRIATE. CITING SECTION 11(A) OF THE ORDER, AS
AMENDED BY EXECUTIVE ORDER 11838 AND THE PRINCIPLE SET FORTH IN THE
PREAMBLE OF THE ORDER THAT EFFICIENT ADMINISTRATION OF THE GOVERNMENT IS
BENEFITED BY EMPLOYEE PARTICIPATION IN THE FORMULATION AND
IMPLEMENTATION OF PERSONNEL POLICIES AND PRACTICES AFFECTING CONDITIONS
OF EMPLOYMENT, THE ASSISTANT SECRETARY STATED THAT IT WAS EVIDENT THAT
THE ORDER WAS INTENDED TO ENCOURAGE NEGOTIATIONS AT THE LOCAL LEVEL TO
THE MAXIMUM EXTENT POSSIBLE WITH RESPECT TO PERSONNEL POLICIES AND
PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS. HE HELD THAT SUCH
NEGOTIATIONS ARE DESIRABLE AS THEY MUST PERFORCE PROMOTE EFFECTIVE
DEALINGS BETWEEN EMPLOYEES AND THE AGENCY MANAGEMENT WITH WHICH THE
PARTICULAR EMPLOYEES ARE MOST CLOSELY INVOLVED.
UNDER ALL OF THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY DIRECTED
THAT AN ELECTION BE CONDUCTED IN THE ALTERNATIVE PROPOSED UNIT. AS THE
UNIT FOUND APPROPRIATE DIFFERED SUBSTANTIALLY FROM THE UNIT PETITIONED
FOR ORIGINALLY, THE ASSISTANT SECRETARY DIRECTED THAT THE ELECTION BE
HELD UPON COMPLETION OF THE POSTING OF A NOTICE OF UNIT DETERMINATION TO
PERMIT POSSIBLE INTERVENTION BY LABOR ORGANIZATIONS FOR THE SOLE PURPOSE
OF APPEARING ON THE BALLOT.
DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION SERVICES
REGION, SAN FRANCISCO /1/
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2723
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER MARILYN KOSLOW.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE BRIEF FILED BY THE
ACTIVITY, /2/ THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE AFGE SEEKS AN ELECTION IN A UNIT OF ALL EMPLOYEES OF THE
DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR), HEADQUARTERS,
BURLINGAME, CALIFORNIA, EXCLUDING MANAGEMENT OFFICIALS, PROFESSIONAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, AND SUPERVISORS AND GUARDS AS DEFINED IN THE
ORDER. /3/
THE ACTIVITY CONTENDS THAT THE CLAIMED UNIT IS NOT APPROPRIATE
BECAUSE IT WOULD RESULT IN FRAGMENTATION OF THE DCASR WITH AN UNKNOWN
NUMBER OF POSSIBLE FUTURE UNITS CARVED OUT OF RESIDUAL SEGMENTS OF THE
DCASR AND, FURTHER, THAT THE UNIT SOUGHT WOULD NOT PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. IN THIS REGARD, THE
ACTIVITY ASSERTS THAT THE ONLY APPROPRIATE UNIT IS ONE COMPOSED OF ALL
ELIGIBLE EMPLOYEES OF THE DCASR, SAN FRANCISCO.
THE DCASR, SAN FRANCISCO, PROVIDES CONTRACT ADMINISTRATION SERVICES
AND SUPPORT FOR THE DEPARTMENT OF DEFENSE, AS WELL AS OTHER FEDERAL
AGENCIES. IT COVERS A GEOGRAPHICAL AREA WHICH INCLUDES NORTHERN
CALIFORNIA, THE STATES OF UTAH, MONTANA, IDAHO, WASHINGTON, OREGON,
ALASKA, HAWAII AND NEVADA (WITH THE EXCEPTION OF THREE COUNTIES), AND
THE MARIANA AND MARSHALL ISLANDS. THIS DCASR IS ONE OF ELEVEN OF SUCH
REGIONS OF THE DEFENSE SUPPLY AGENCY (DSA) AND IS A PRIMARY LEVEL FIELD
ACTIVITY OF THE DSA. THERE ARE TWO DEFENSE CONTRACT ADMINISTRATION
SERVICES DISTRICTS (DCASD) WITHIN THE DCASR, NAMELY, DCASD SEATTLE,
WASHINGTON, AND DCASD SALT LAKE CITY, UTAH. ADDITIONALLY, THE DCASR
INCLUDES ONE DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICE (DCASO) IN
PORTLAND, OREGON WHICH IS UNDER THE DCASD, SEATTLE, THE HAWAII RESIDENCY
OFFICE, THE PETITIONED FOR HEADQUARTERS LOCATED IN BURLINGAME,
CALIFORNIA, AND FIVE DCASO'S IN THE SAN FRANCISCO BAY AREA WHICH REPORT
TO THE DCASR HEADQUARTERS, BURLINGAME. AT THE HEARING, THE AFGE
INDICATED THAT IT WOULD BE WILLING TO INCLUDE THE FIVE DCASO'S IN THE
SAN FRANCISCO BAY AREA AND THE HAWAII RESIDENCY OFFICE IN THE PETITIONED
FOR UNIT. APPROXIMATELY 1,143 CIVILIAN EMPLOYEES ARE EMPLOYED
THROUGHOUT THE DCASR SAN FRANCISCO. AS OF NOVEMBER 30, 1974, THERE WERE
APPROXIMATELY 690 EMPLOYEES AT DCASR HEADQUARTERS. WITH THE EXCEPTION
OF A UNIT OF EMPLOYEES EMPLOYED BY THE DCASD LOCATED AT SALT LAKE CITY,
UTAH, THERE IS NO COLLECTIVE BARGAINING HISTORY IN THE DCASR, SAN
FRANCISCO.
THE DCASR IS HEADED BY A REGIONAL COMMANDER WHOSE OFFICE IS LOCATED
AT HEADQUARTERS. DIRECTLY UNDER THE COMMANDER AT HEADQUARTERS IS HIS
PERSONAL STAFF AND A NUMBER OF OFFICES AND DIRECTORATES WHICH ARE
RESPONSIBLE FOR PLANNING AND MONITORING ALL FACETS OF THE DCASR'S
OPERATIONS. /4/ THE RECORD REFLECTS THAT THE DCASR'S CIVILIAN PERSONNEL
OFFICE, LOCATED AT HEADQUARTERS, HAS THE RESPONSIBILITY FOR SERVICING
ALL THE DCASR'S COMPONENTS WITHIN THE REGION, INCLUDING THE
HEADQUARTERS, ITS FIVE DCASO'S, AND THE HAWAII RESIDENCY OFFICE.
FURTHER, ALL EMPLOYEES OF THE DCASR PERFORM THEIR DUTIES PURSUANT TO
POLICIES AND PROCEDURES ESTABLISHED BY THE REGIONAL HEADQUARTERS' STAFF
AND EMPLOYEES WITHIN THE REGIONAL HEADQUARTERS AND THE FIVE DCASO'S IN
THE SAN FRANCISCO BAY AREA AND THE HAWAII RESIDENCY OFFICE ARE SUBJECT
TO UNIFORM PERSONNEL POLICIES AND JOB BENEFITS. ALSO SIMILAR JOB
CLASSIFICATIONS TO SOME OF THOSE FOUND IN THE HEADQUARTERS ARE FOUND IN
THE FIVE DCASO'S AND THE HAWAII RESIDENCY OFFICE. THE RECORD REFLECTS
THAT THERE IS AN ADMINISTRATIVE AND FUNCTIONAL RELATIONSHIP BETWEEN THE
DCASO'S AND THE DCASD'S. THUS, THE EVIDENCE ESTABLISHES THAT, AS WITH
THE PORTLAND, OREGON DCASO WHICH IS UNDER THE DIRECTION OF THE SEATTLE,
WASHINGTON, DCASD, THE FIVE DCASO'S IN THE SAN FRANCISCO BAY AREA AND
THE HAWAII RESIDENCY OFFICE ARE UNDER THE DIRECTION OF THE HEADQUARTERS
OF THE DCASR, WHICH, IN EFFECT, ACTS AS A DCASD VIS A VIS THESE OFFICES
WITHIN THE DCASR. /5/
THE RECORD REVEALS THAT FIVE DCASO'S NAMELY, FMC CORPORATION, PHILCO
CORPORATION, SYLVANIA CORPORATION, WESTINGHOUSE CORPORATION, AND THE
APPLIED TECHNOLOGY DIVISION OF ITEK CORPORATION (ATD), ARE LOCATED IN
THE SAN FRANCISCO BAY AREA, REPORT TO HEADQUARTERS, AND ARE WITHIN THE
HEADQUARTERS' COMMUTING AREA. FURTHER, THE RECORD REFLECTS THAT
EMPLOYEES ARE REASSIGNED FROM THE HEADQUARTERS TO THESE DCASO'S AND VICE
VERSA BASED UPON NEED IN TERMS OF WORK LOAD WHICH MAY HAVE SHIFTED.
ALSO, THE EVIDENCE ESTABLISHES THAT THERE IS EMPLOYEE CONTACT BETWEEN
THE HEADQUARTERS, THE FIVE DCASO'S AND THE HAWAII RESIDENCY OFFICE AND,
ADDITIONALLY, THAT TRAINING SESSIONS FOR CERTAIN EMPLOYEES LOCATED IN
THE FIVE DCASO'S ARE HELD AT HEADQUARTERS.
BASED ON THE FOREGOING CIRCUMSTANCES, I FIND THAT THERE IS A CLEAR
AND IDENTIFIABLE COMMUNITY OF INTEREST AMONG EMPLOYEES IN THE
HEADQUARTERS OF THE DCASR, SAN FRANCISCO, THE FIVE DCASO'S IN THE SAN
FRANCISCO BAY AREA, AND THE HAWAII RESIDENCY OFFICE. IN THIS REGARD, IT
WAS NOTED THAT SUCH EMPLOYEES SHARES A COMMON MISSION AND ARE COVERED BY
THE SAME PERSONNEL AND LABOR RELATIONS POLICIES. MOREOVER, THERE ARE
SIMILAR JOB CLASSIFICATIONS IN EACH OF THE COMPONENTS WITHIN THE
HEADQUARTERS, THE FIVE DCASO'S AND THE HAWAII RESIDENCY OFFICE, THERE
HAVE BEEN REASSIGNMENTS TO AND FROM THE REGIONAL HEADQUARTERS AND THE
DCASO'S AND THERE IS EMPLOYEE CONTACT BETWEEN THESE OFFICES.
FURTHER, I FIND THAT SUCH A UNIT WILL PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS AND THAT THE ACTIVITY'S CONTENTION TO
THE CONTRARY ARE, AT BEST, SPECULATIVE AND CONJECTURAL. IN REACHING
THIS CONCLUSION I AM COGNIZANT OF THE FEDERAL LABOR RELATIONS COUNCIL'S
(COUNCIL) RECENT DECISION IN DEPARTMENT OF TRANSPORTATION, FEDERAL
AVIATION ADMINISTRATION, SOUTHWEST REGION, TULSA AIRWAYS FACILITIES
SECTOR TULSA), FLRC NO. 74A-28, IN WHICH THE COUNCIL INDICATED THAT THE
ASSISTANT SECRETARY SHOULD, IN MAKING UNIT DETERMINATIONS, MAKE
AFFIRMATIVE FINDINGS WITH RESPECT TO EACH OF THE UNIT CRITERIA,
INCLUDING EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS, SET
FORTH IN SECTION 10(B) OF EXECUTIVE ORDER 11491, AS AMENDED.
WITH RESPECT TO THE ISSUE WHETHER A PROPOSED UNIT WILL PROMOTE
EFFICIENCY OF AGENCY OPERATIONS, IN MY VIEW, MORE THAN COST FACTORS
SHOULD BE INVOLVED IN MAKING SUCH DETERMINATIONS. THUS, THE COUNCIL HAS
STATED PREVIOUSLY IN LOCAL UNION NO. 2219, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO, AND DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, LITTLE ROCK DISTRICT, LITTLE ROCK ARK., FLRC NO. 71A-46, /6/
THAT:
IN OUR OPINION, THE AGENCY'S POSITION EQUATING REDUCED PREMIUM PAY
COSTS WITH EFFICIENT AND
ECONOMICAL OPERATIONS IMPROPERLY IGNORE THE TOTAL COMPLEX OF FACTORS
ENCOMPASSED WITH THE
CONCEPT OF "EFFICIENCY AND ECONOMY." IT FAILS TO TAKE INTO ACCOUNT,
FOR EXAMPLE, THE ADVERSE
EFFECTS OF EMPLOYEE DISSATISFACTION WITH EXISTING ASSIGNMENT
PRACTICES, AND THE VERY REAL
POSSIBILITY THAT REVISED PRACTICES ALONG THE LINES PROPOSED, BY
REASON OF THEIR ACTUAL IMPACT
ON THE EMPLOYEES, MIGHT WELL INCREASE RATHER THAN REDUCE OVERALL
EFFICIENCY AND ECONOMY OF
OPERATIONS.
IN GENERAL, AGENCY DETERMINATIONS AS TO NEGOTIABILITY MADE IN
RELATION TO THE CONCEPT OF
EFFICIENCY AND ECONOMY IN SECTION 12(B)(4) OF THE ORDER AND SIMILAR
LANGUAGE IN STATURES
REQUIRE CONSIDERATION AND BALANCING OF ALL THE FACTORS INVOLVED,
INCLUDING THE WELL-BEING OF
EMPLOYEES, RATHER THAN AN ARBITRARY DETERMINATION BASED ONLY ON THE
ANTICIPATION OF INCREASED
COSTS. OTHER FACTORS SUCH AS THE POTENTIAL FOR IMPROVED PERFORMANCE,
INCREASED PRODUCTIVITY,
RESPONSIVENESS TO DIRECTION, REDUCED TURNOVER, FEWER GRIEVANCES,
CONTRIBUTION OF MONEY-SAVING
IDEAS, IMPROVED HEALTH AND SAFETY, AND THE LIKE, ARE VALID
CONSIDERATIONS. WE BELIEVE THAT
WHERE OTHERWISE NEGOTIABLE PROPOSALS ARE INVOLVED THE MANAGEMENT
RIGHT IN SECTION 12(B)(4) MAY
NOT PROPERLY BE INVOKED TO DENY NEGOTIATIONS UNLESS THERE IS A
SUBSTANTIAL DEMONSTRATION BY
THE AGENCY THAT INCREASED COSTS OR REDUCED EFFECTIVENESS IN
OPERATIONS ARE INESCAPABLE AND
SIGNIFICANT AND ARE NOT OFFSET BY COMPENSATING BENEFITS.
THIS PHILOSOPHY RECENTLY WAS AFFIRMED BY THE COUNCIL IN ITS
SUPPLEMENTAL DECISION IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
NATIONAL JOINT COUNCIL OF FOOD INSPECTION LOCALS AND OFFICE OF THE
ADMINISTRATOR, ANIMAL AND PLANT HEALTH INSPECTION SERVICE, U.S.
DEPARTMENT OF AGRICULTURE, FLRC NO. 73A-36, WHERE THE COUNCIL NOTED THAT
IT HAD FOUND WITHOUT MERIT THE AGENCY'S ARGUMENT THAT A PROPOSAL WHICH
WOULD RESULT IN OVERTIME EXPENSES WOULD CONFLICT WITH THE AGENCY'S RIGHT
TO MAINTAIN EFFICIENT AGENCY OPERATIONS UNDER SECTION 12(B)(4), BECAUSE,
IN THE COUNCIL'S VIEW, THAT SECTION,
. . . REQUIRES A BALANCING OF ALL THE FACTORS INVOLVED, INCLUDING NOT
ONLY THE ANTICIPATION
OF INCREASED COSTS, BUT ALSO SUCH FACTORS AS THE WELL-BEING OF
EMPLOYEES, AND THE POTENTIAL
FOR IMPROVED PERFORMANCE, INCREASED PRODUCTIVITY, RESPONSIVENESS TO
DIRECTION, REDUCED
TURNOVER, FEWER GRIEVANCES, CONTRIBUTION OF MONEY-SAVING IDEAS,
IMPROVED HEALTH AND SAFETY AND
THE LIKE; AND THAT, TO INVOKE SECTION 12(B)(4), THERE MUST BE
SUBSTANTIAL DEMONSTRATION BY THE
AGENCY THAT INCREASED COSTS OR REDUCED EFFECTIVENESS IN OPERATIONS
ARE INESCAPABLE AND
SIGNIFICANT AND ARE NOT OFFSET BY COMPENSATING BENEFITS.
FROM THE FOREGOING, IT IS EVIDENT THAT A DETERMINATION OF EFFICIENCY
OF AGENCY OPERATIONS IS DEPENDENT ON A COMPLEX OF FACTORS AND THAT IT
HAS BEEN RECOGNIZED THAT THE TANGIBLE AND INTANGIBLE BENEFITS TO
EMPLOYEES AND ACTIVITIES RESULTING FROM EMPLOYEE REPRESENTATION BY A
LABOR ORGANIZATION CAN RESULT IN IMPROVED EFFICIENCY OF AGENCY
OPERATIONS DESPITE INCREASED COST FACTORS. /7/ FURTHER, IT WAS NOTED
THAT THE COUNCIL INDICATED IN FLRC NO. 74A-28 THAT IN UNIT DETERMINATION
PROCEEDINGS THE PARTIES ARE OBLIGATED TO COME FORWARD, FOR THE USE OF
THE ASSISTANT SECRETARY, WITH ALL RELEVANT INFORMATION INCLUDING ANY
CONTRARY EVIDENCE WITH RESPECT TO EFFICIENCY OF AGENCY OPERATIONS; THAT
INFORMATION RELATED TO EFFICIENCY OF AGENCY OPERATIONS MAY WELL BE
WITHIN THE SPECIAL KNOWLEDGE AND POSSESSION OF THE AGENCY INVOLVED; AND
THAT WHERE AGENCIES FAIL OR ARE UNABLE TO RESPOND TO THE SOLICITATION OF
SUCH INFORMATION BY THE ASSISTANT SECRETARY, THE ASSISTANT SECRETARY
SHOULD BASE HIS DECISION ON THE INFORMATION AVAILABLE TO HIM, MAKING THE
BEST INFORMED JUDGMENT HE CAN UNDER THE CIRCUMSTANCES.
BASED ON THE FOREGOING CONSIDERATION, I FIND THAT THE EVIDENCE HEREIN
ESTABLISHES THAT THE ALTERNATIVE PROPOSED EMPLOYEE UNIT COMPOSED OF THE
HEADQUARTERS, SAN FRANCISCO, THE FIVE DCASO'S IN THE SAN FRANCISCO BAY
AREA AND THE HAWAII RESIDENCY OFFICE WILL PROMOTE THE EFFICIENCY OF
AGENCY OPERATIONS. THUS, SUCH A BROADLY BASED UNIT WOULD ENCOMPASS THE
EMPLOYEES OF THE DCASR HEADQUARTERS IN BURLINGAME AS WELL AS THOSE IN
DCASO'S WITHIN THE SAME COMMUTING AREA. MOREOVER, IT WOULD INCLUDE THE
HAWAII RESIDENCY OFFICE WHICH OTHERWISE MIGHT BE FRAGMENTED WITHIN THE
DCASR. IN MY VIEW, THE ESTABLISHMENT OF SUCH A UNIT COULD RESULT IN
ACTUAL ECONOMIC SAVINGS AND INCREASED PRODUCTIVITY DUE TO THE
HOMOGENEITY OF ITS COMPOSITION. IN ADDITION, IT WAS NOTED THAT THE
ACTIVITY'S CONTENTIONS THAT SUCH A UNIT WOULD NOT PROMOTE EFFICIENCY OF
AGENCY OPERATIONS WERE BASED PRIMARILY ON ITS SPECULATIVE ASSESSMENTS OF
THE MANPOWER AND ECONOMIC COSTS OF LESS THAN A REGIONWIDE UNIT, RATHER
THAN ON A BALANCED CONSIDERATION OF ALL THE FACTORS, INCLUDING EMPLOYEE
MORALE AND WELL-BEING, WHICH, AS NOTED ABOVE, ARE RELEVANT FACTORS IN
MAKING SUCH AN ASSESSMENT. THUS, THE ACTIVITY'S POSITION IN THIS REGARD
WAS REFLECTED IN THE TESTIMONY OF ITS CIVILIAN PERSONNEL OFFICER THAT
"IT WAS REASONABLE" TO INFER THAT A REGION-WIDE UNIT WOULD DO MORE TO
PROMOTE EFFICIENCY OF AGENCY OPERATIONS (AND EFFECTIVE DEALINGS) THAN
THE ORIGINALLY PETITIONED FOR UNIT OF THE DCASR HEADQUARTERS,
BURLINGAME, /8/ AND THAT IT WOULD BE A HARDSHIP ON HIS OFFICE IF SEVERAL
AGREEMENTS WERE REQUIRED BECAUSE THIS WOULD REQUIRE EXPENDITURE OF BOTH
MANPOWER AND FINANCIAL RESOURCES "THAT MIGHT NOT BE NECESSARY IF THERE
WERE A SINGLE UNIT THROUGHOUT THE REGION." I FIND THAT, STANDING ALONE,
SUCH SPECULATION AS TO WHAT MIGHT BE HELPFUL OR DESIRABLE TO BE
INSUFFICIENT TO ESTABLISH THAT THE PROPOSED UNIT IS INAPPROPRIATE WITHIN
THE MEANING OF SECTION 10(B) OF THE ORDER.
IN ADDITION, AS NOTED ABOVE, I FIND THAT THE ALTERNATIVE UNIT SOUGHT
HEREIN WILL PROMOTE EFFECTIVE DEALINGS. IN THIS CONNECTION, IT IS NOTED
THAT BOTH THE REGIONAL COMMANDER AND THE CIVILIAN PERSONNEL OFFICER,
WHOM THE ACTIVITY CONTENDS ARE THE PRINCIPAL OR ULTIMATE AUTHORITIES
WITHIN THE REGION INVOLVED IN THE NEGOTIATION AND APPROVAL OF NEGOTIATED
AGREEMENTS AND IN THE RESOLUTION OF GRIEVANCES AND OTHER PERSONNEL
MATTERS, ARE LOCATED AT THE DCASR HEADQUARTERS IN BURLINGAME. THUS,
CLEARLY, THE UNIT FOUND APPROPRIATE HEREIN WOULD PROMOTE EFFECTIVE
DEALINGS TO THE EXTENT THAT THE INDIVIDUALS WHOM THE ACTIVITY CONTENDS
ARE MOST CONCERNED WITH LABOR-MANAGEMENT RELATIONS, FISCAL MATTERS AND
THE DIRECTION OF OPERATIONS ARE LOCATED ORGANIZATIONALLY WITH THE UNIT
FOUND APPROPRIATE. MOREOVER, IN MY VIEW, A CLAIMED UNIT MAY BE
APPROPRIATE AND BE CONSIDERED TO PROMOTE EFFECTIVE DEALINGS AS WELL AS
EFFICIENCY OF AGENCY OPERATIONS EVEN THOUGH IT DOES NOT INCLUDE ALL
EMPLOYEES DIRECTLY UNDER THE AREA OR REGIONAL HEAD, OR OTHER ACTIVITY
OFFICIALS WHO HAVE FINAL OR INITIATING AUTHORITY WITH RESPECT TO
PERSONNEL, FISCAL AND PROGRAMMATIC MATTERS. THUS, IT IS CLEARLY
CONTEMPLATED BY THE EXECUTIVE ORDER THAT LABOR-MANAGEMENT NEGOTIATIONS
COULD PROPERLY BE CONDUCTED AT LOWER THAN AGENCY, REGIONAL, OR DISTRICT
LEVELS, AND THAT, THEREFORE, UNITS OF LESS BROAD PROPORTIONS COULD BE
APPROPRIATE. IN THIS REGARD, SECTION 11(A) OF THE ORDER, AS AMENDED
RECENTLY BY EXECUTIVE ORDER 11838, PROVIDES, IN PART, THAT THE AGENCY
AND THE EXCLUSIVE REPRESENTATIVE SHALL MEET AND CONFER WITH RESPECT TO
PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING
CONDITIONS, AS MAY BE APPROPRIATE UNDER APPLICABLE LAWS AND REGULATIONS
AND (AFTER THE ESTABLISHMENT OF CRITERIA BY THE COUNCIL) "-- -PUBLISHED
AGENCY POLICIES AND REGULATIONS FOR WHICH A COMPELLING NEED EXISTS--
-WHICH ARE ISSUED AT AGENCY HEADQUARTERS LEVEL OR AS THE LEVEL OF A
PRIMARY NATIONAL SUBDIVISION." THE RATIONALE FOR THIS AMENDMENT TO
EXECUTIVE ORDER 11491, IS SET FORTH ON PAGES 31-39 OF THE COUNCIL'S
REPORT AND RECOMMENDATIONS OF JANUARY 1975, IN WHICH IT IS NOTED THAT
THE STUDY COMMITTEE IN 1969, ALTHOUGH EMPHASIZING THAT AGENCY REGULATORY
AUTHORITY MUST BE RETAINED, URGED AGENCIES TO AVOID ISSUANCE OF
OVERPRESCRIPTIVE REGULATIONS AND TO INCREASE DELEGATIONS OF AUTHORITY
OVER PERSONNEL POLICIES TO LOCAL MANAGERS TO PERMIT A WIDER SCOPE OF
NEGOTIATIONS. THE COUNCIL NOTED IN ITS 1975 REPORT AND RECOMMENDATIONS,
HOWEVER, THAT ITS EXHORTATION HAD FALLEN SHORT OF ITS OBJECTIVES AND FOR
THIS REASON MEANINGFUL NEGOTIATIONS AT THE LOCAL LEVEL HAD BEEN
UNNECESSARILY CONSTRICTED BY HIGHER LEVEL REGULATIONS "NOT CRITICAL TO
EFFECTIVE AGENCY MANAGEMENT OR THE PUBLIC INTEREST." ACCORDINGLY, THE
COUNCIL RECOMMENDED, AND THE PRESIDENT APPROVED, THE MODIFICATION OF
SECTION 11(A), WHICH, SUBSEQUENT TO THE ESTABLISHMENT OF CRITERIA BY THE
COUNCIL, WILL BAR FROM NEGOTIATION AT THE LOCAL LEVEL ONLY THOSE AGENCY
POLICIES AND REGULATIONS FOR WHICH A COMPELLING NEED HAS BEEN
ESTABLISHED. WHEN SECTION 11(A) IS CONSIDERED IN CONJUNCTION WITH THE
PRINCIPLE SET FORTH ABOVE IN THE PREAMBLE TO THE ORDER THAT EFFICIENT
ADMINISTRATION OF THE GOVERNMENT IS BENEFITED BY EMPLOYEE PARTICIPATION
IN THE FORMULATION AND IMPLEMENTATION OF PERSONNEL POLICIES AND
PRACTICES AFFECTING CONDITIONS OF EMPLOYMENT, IT IS EVIDENT THAT THE
ORDER NOT ONLY IS INTENDED TO ENCOURAGE NEGOTIATIONS AT THE LOCAL LEVEL
TO THE MAXIMUM EXTENT POSSIBLE WITH RESPECT TO PERSONNEL POLICIES AND
PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS, BUT THAT SUCH
NEGOTIATIONS ARE DESIRABLE AS THEY MUST PERFORCE PROMOTE EFFECTIVE
DEALINGS BETWEEN EMPLOYEES AND THE AGENCY MANAGEMENT WITH WHICH THE
PARTICULAR EMPLOYEES ARE MOST CLOSELY INVOLVED. THUS, IN MY VIEW, THE
ORDER, WHILE RECOGNIZING THE APPROPRIATENESS OF BROADLY BASED UNITS
UNDER CERTAIN CIRCUMSTANCES, /9/ IS ALSO, AS REFLECTED BY THE AMENDMENT
TO SECTION 11(A), SUPPORTIVE OF THE CONCEPT THAT BARGAINING UNITS AT
LOWER LEVELS MAY IN CERTAIN INSTANCES, PROMOTE EFFECTIVE DEALINGS, AS
WELL AS RESULT IN THE INCREASED EFFICIENCY OF AGENCY OPERATIONS, I HAVE
DISCUSSED PREVIOUSLY HEREIN.
BASED ON ALL THE CONSIDERATIONS SET FORTH ABOVE, I FIND THAT A UNIT
ENCOMPASSING THE EMPLOYEES OF DCASR HEADQUARTERS, BURLINGAME,
CALIFORNIA, THE FIVE DCASO'S, AND THE HAWAII RESIDENCY, IS APPROPRIATE
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER IN THAT THE
EMPLOYEES IN SUCH UNIT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST WITH EACH OTHER, AND SUCH A UNIT WILL PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, I SHALL
DIRECT AN ELECTION IN THE FOLLOWING UNIT:
ALL EMPLOYEES OF THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION
HEADQUARTERS,
BURLINGAME, CALIFORNIA, THE DEFENSE CONTRACT ADMINISTRATION SERVICES
OFFICES AT THE FMC
CORPORATION, PHILCO CORPORATION, SYLVANIA CORPORATION, WESTINGHOUSE
CORPORATION AND APPLIED
TECHNOLOGY DIVISION OF ITEK CORPORATION (ATD), IN THE SAN FRANCISCO
BAY AREA, AND THE HAWAII
RESIDENCY OFFICE, EXCLUDING MANAGEMENT OFFICIALS, PROFESSIONAL
EMPLOYEES, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
GUARDS, AND SUPERVISORS AS
DEFINED IN THE ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA DIRECTOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THE PERIOD BECAUSE THEY WERE
OUT ILL, OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE MILITARY
SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE
EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO
BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2723.
BECAUSE THE ABOVE DIRECTION OF ELECTION IS IN A UNIT SUBSTANTIALLY
DIFFERENT THAN THE UNIT ORIGINALLY PETITIONED FOR BY THE AFGE, I DIRECT
THAT THE ACTIVITY, AS SOON AS POSSIBLE, SHALL POST COPIES OF A NOTICE OF
UNIT DETERMINATION, WHICH SHALL BE FURNISHED BY THE APPROPRIATE AREA
DIRECTOR, IN PLACES WHERE NOTICES ARE NORMALLY POSTED AFFECTING THE
EMPLOYEES IN THE UNIT I HAVE HEREIN FOUND APPROPRIATE. SUCH NOTICES
SHALL CONFORM IN ALL RESPECTS TO THE REQUIREMENTS OF SECTION 202.4(B)
AND (C) OF THE ASSISTANT SECRETARY'S REGULATIONS. FURTHER, A LABOR
ORGANIZATION WHICH SEEKS TO INTERVENE IN THIS MATTER MUST DO SO IN
ACCORDANCE WITH THE REQUIREMENTS OF SECTION 202.5 OF THE ASSISTANT
SECRETARY'S REGULATIONS. A TIMELY INTERVENTION WILL BE GRANTED SOLELY
FOR THE PURPOSE OF APPEARING ON THE BALLOT IN THE ELECTION AMONG THE
EMPLOYEES IN THE UNIT FOUND APPROPRIATE.
DATED, WASHINGTON, D.C.
SEPTEMBER 16, 1975
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
2723, HEREIN CALLED AFGE, FILED AN UNTIMELY BRIEF WHICH WAS NOT
CONSIDERED. THE ACTIVITY REQUESTED THAT ITS BRIEF FILED IN DEFENSE
SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR),
SAN FRANCISCO, CALIFORNIA, DEFENSE CONTRACT ADMINISTRATION SERVICES
DISTRICT (DCASD), SALT LAKE CITY, UTAH, A/SLMR NO. 461, BE CONSIDERED AS
ITS BRIEF IN THE INSTANT PROCEEDING.
/3/ THE CLAIMED UNIT APPEARS AS AMENDED AT THE HEARING.
/4/ THESE INCLUDE THE OFFICE OF PLANNING AND MANAGEMENT, SYSTEMS AND
FINANCIAL MANAGEMENT, ADMINISTRATIVE SERVICES, INDUSTRIAL SECURITY, AND
CONTRACT COMPLIANCE AND OF THE DIRECTORATES OF CONTRACT ADMINISTRATION,
PRODUCTION, AND QUALITY ASSURANCE.
/5/ THERE ARE FOUR EMPLOYEES ASSIGNED TO THE HAWAII RESIDENCY OFFICE,
ONE OF WHOM IS A SUPERVISOR, AND A FIFTH EMPLOYEE WHO IS ATTACHED, FOR
SUPPORT PURPOSES BUT IS, IN FACT, ASSIGNED TO THE DCASR HEADQUARTERS.
/6/ ALTHOUGH FLRC NO. 71A-46 INVOLVED A NEGOTIABILITY DETERMINATION
AND THE CONCEPT OF EFFICIENCY AND ECONOMY AS SET FORTH IN SECTION
12(B)(4) OF THE ORDER, I CONSIDER SUCH CONCEPTS RELEVANT IN CONSIDERING
"EFFICIENCY OF AGENCY OPERATIONS" AS THAT TERM IS USED IN SECTION 10(B)
OF THE ORDER.
/7/ IN CONSIDERING WHETHER A PARTICULAR BARGAINING UNIT WILL PROMOTE
THE EFFICIENCY OF AGENCY OPERATIONS, IT WAS NOTED THAT THE PREAMBLE TO
EXECUTIVE ORDER RECOGNIZES, AMONG OTHER THINGS, THAT "EFFICIENT
ADMINISTRATION OF THE GOVERNMENT (IS) BENEFITED BY PROVIDING EMPLOYEES
AN OPPORTUNITY TO PARTICIPATE IN THE FORMULATION AND IMPLEMENTATION OF
PERSONNEL POLICIES AND PRACTICES AFFECTING THE CONDITIONS OF THEIR
EMPLOYMENT."
/8/ IT SHOULD BE NOTED THAT THE UNIT FOUND TO BE APPROPRIATE HEREIN
ENCOMPASSES THE FIVE DCASO'S IN THE SAN FRANCISCO BAY AREA AND THE
HAWAII RESIDENCY OFFICE, AS WELL AS THE DCASR HEADQUARTERS, BURLINGAME.
/9/ IN THIS REGARD, I AM COGNIZANT THAT EXECUTIVE ORDER 11838,
PROVIDES FOR THE CONSOLIDATION OF EXISTING UNITS AND THAT SECTION 11(A)
OF THE ORDER, AS AMENDED, IS INTENDED TO "COMPLEMENT" THE CHANGES IN THE
ORDER WHICH PERMIT SUCH CONSOLIDATION. SEE DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION SERVICES REGION 0DCASR, CLEVELAND, OHIO,
DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICES 0DCASO'S, AKRON, OHIO,
AND COLUMBUS, OHIO, FLRC NO. 74A-41. HOWEVER, I DO NOT FIND THIS
CONCEPT TO BE INCONSISTENT WITH THE CONTINUED EXISTENCE OR ESTABLISHMENT
OF UNITS LESS COMPREHENSIVE THAN REGION OR DISTRICT-WIDE, WHICH
OTHERWISE MEET THE TESTS OF APPROPRIATENESS UNDER THE ORDER.
5 A/SLMR 558; P. 597; CASE NO. 20-4579(CU); SEPTEMBER 16, 1975.
DEPARTMENT OF THE NAVY,
PHILADELPHIA NAVAL REGIONAL MEDICAL CENTER
A/SLMR NO. 558
THIS CASE INVOLVED A PETITION FOR CLARIFICATION OF UNIT (CU) FILED BY
THE DEPARTMENT OF THE NAVY, PHILADELPHIA NAVAL REGIONAL MEDICAL CENTER
(ACTIVITY), SEEKING TO CLARIFY AN EXISTING EXCLUSIVELY RECOGNIZED UNIT.
THE ACTIVITY CONTENDS THAT, AS A RESULT OF A REORGANIZATION, AN
EXCLUSIVELY RECOGNIZED UNIT LOCATED AT THE PHILADELPHIA HOSPITAL CENTER
IS "NO LONGER APPROPRIATE." IN THE ACTIVITY'S VIEW, THE REORGANIZATION,
WHICH CREATED THE PHILADELPHIA NAVAL REGIONAL MEDICAL CENTER, CAUSED THE
"ACCRETION" TO THE RECOGNIZED UNIT OF THE NONPROFESSIONAL EMPLOYEES AT
SOME 13 DISPENSARIES, LOCATED AT OTHER FACILITIES, WHICH EMPLOYEES,
TOGETHER WITH THOSE AT THE HOSPITAL, ARE NOW ASSIGNED ADMINISTRATIVELY
TO THE REGIONAL MEDICAL CENTER. THE DISPENSARIES ARE AN AVERAGE OF 70
MILES FROM THE HOSPITAL, AND 8 OF THE 13 DISPENSARIES CURRENTLY ARE
ENCOMPASSED WITH BROADER UNITS REPRESENTED EXCLUSIVELY BY LABOR
ORGANIZATIONS, INCLUDING THE INTERVENOR, PHILADELPHIA METAL TRADES
COUNCIL, AFL-CIO (MTC), AT THE PARTICULAR FACILITIES AT WHICH THEY ARE
LOCATED. THE MTC CONTENDED THAT THE REORGANIZATION DID NOT RESULT IN
THE ACCRETION TO THE EXCLUSIVELY RECOGNIZED UNIT AT THE HOSPITAL OF THE
EMPLOYEES OF THE DISPENSARIES.
THE ASSISTANT SECRETARY FOUND INSUFFICIENT BASIS TO SUPPORT THE
ACTIVITY'S CONTENTION THAT THE EMPLOYEES AT THE DISPENSARIES HAD
ACCREDITED TO THE UNIT AT THE NAVAL HOSPITAL. IN THIS REGARD, IT WAS
NOTED, AMONG OTHER THINGS, THAT THE DISPENSARY EMPLOYEES HAVE REMAINED
AT THE SAME LOCATIONS AS PRIOR TO THE REORGANIZATION, PERFORMING THE
SAME WORK UNDER THE SAME IMMEDIATE SUPERVISION AND THAT THE EVIDENCE
FAILED TO REVEAL ANY SIGNIFICANT DEGREE OF INTERCHANGE, TRANSFER OR
COMMINGLING BETWEEN DISPENSARY AND HOSPITAL PERSONNEL.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE CU PETITION BE
DISMISSED.
DEPARTMENT OF THE NAVY,
PHILADELPHIA NAVAL REGIONAL MEDICAL CENTER
AND
PHILADELPHIA METAL TRADES COUNCIL,
AFL-CIO /1/
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER JOSEPH P. HICKEY.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
THE ACTIVITY-PETITIONER FILED A PETITION FOR CLARIFICATION OF UNIT
(CU) SEEKING TO CLARIFY AN EXISTING EXCLUSIVELY RECOGNIZED UNIT. IN
THIS CONNECTION, THE ACTIVITY-PETITIONER CONTENDS THAT, AS A RESULT OF A
REORGANIZATION, THE EXCLUSIVELY RECOGNIZED UNIT OF SOME 448 GRADED AND
UNGRADED NONPROFESSIONAL CIVILIAN EMPLOYEES, LOCATED AT THE PHILADELPHIA
NAVAL HOSPITAL, FOR WHICH THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, HEREIN CALLED AFGE, IS THE EXCLUSIVE REPRESENTATIVE,
IS "NO LONGER APPROPRIATE." THUS, IN THE ACTIVITY-PETITIONER'S VIEW, THE
REORGANIZATION, WHICH CREATED THE PHILADELPHIA NAVAL REGIONAL MEDICAL
CENTER, CAUSED THE "ACCRETION" TO THE AFGE'S RECOGNIZED UNIT OF THE
NONPROFESSIONAL EMPLOYEES AT SOME 13 DISPENSARIES /2/ WHICH EMPLOYEES,
TOGETHER WITH THOSE AT THE HOSPITAL, ARE NOW ASSIGNED ADMINISTRATIVELY
TO THE REGIONAL MEDICAL CENTER. IT ASSERTS FURTHER THAT THE
REORGANIZATION RESULTED IN A CHANGE IN THE MISSION OF THE DISPENSARIES
AND, BASED ON SUCH CHANGE, THE DISPENSARY EMPLOYEES NO LONGER SHARE A
COMMUNITY OF INTEREST WITH THE NON-DISPENSARY EMPLOYEES AT THE VARIOUS
LOCATIONS WHERE THE DISPENSARIES ARE LOCATED. /3/
THE MTC CONTENDS THAT THE DUTIES PERFORMED BY THE DISPENSARY
EMPLOYEES REMAIN ESSENTIALLY THE SAME AS THOSE THEY PERFORMED PRIOR TO
THE REORGANIZATION, THAT THERE IS NO COMMUNITY OF INTEREST BETWEEN THE
DISPENSARY EMPLOYEES AND THE NAVAL HOSPITAL PERSONNEL, AND THAT THE
EMPLOYEES HAVE SEPARATE IDENTITIES AND HAVE BEEN REPRESENTED IN THE PAST
BY VARIOUS LABOR ORGANIZATIONS WHICH CONTINUE TO AFFORD THEM
REPRESENTATION.
THE MISSION OF THE ACTIVITY-PETITIONER IS TO PROVIDE GENERAL AND
SPECIALIZED CLINICAL SERVICES FOR ACTIVITY DUTY NAVY AND MARINE CORPS
PERSONNEL, ACTIVITY DUTY MEMBERS OF THE OTHER ARMED SERVICES, DEPENDENTS
OF ACTIVITY DUTY PERSONNEL, AND OTHER PERSONS AUTHORIZED BY CURRENT
DIRECTIVES. IT IS CHARGED WITH PROVIDING COORDINATED DISPENSARY HEALTH
CARE SERVICES AS AN INTEGRAL ELEMENT OF THE NAVAL REGIONAL HEALTH CARE
SYSTEM, INCLUDING SUCH SERVICES TO SHORE ACTIVITIES AS MAY BE ASSIGNED.
IN THE PERFORMANCE OF ITS MISSION, IT IS REQUIRED TO COOPERATE WITH
OTHER MILITARY AND CIVIL AUTHORITIES IN MATTERS PERTAINING TO HEALTH,
SANITATION, LOCAL DISASTERS AND OTHER EMERGENCIES.
THROUGH A REORGANIZATION WHICH WAS EFFECTIVE ON JANUARY 1, 1973, THE
CHIEF OF NAVAL OPERATIONS DIRECTED THE ESTABLISHMENT OF THE NAVAL
REGIONAL MEDICAL CENTER, PHILADELPHIA, PENNSYLVANIA. THE REORGANIZATION
MODIFIED THE MISSION OF THE PHILADELPHIA NAVAL HOSPITAL. IN THIS
REGARD, IT WAS PROVIDED THAT THE 13 DISPENSARIES, LOCATED AN AVERAGE OF
70 MILES FROM THE HOSPITAL, IN AREAS AS FAR AWAY AS LONG ISLAND, NEW
YORK, AND WHICH WERE NOT PREVIOUSLY ATTACHED TO THE HOSPITAL, BE PLACED
UNDER THE ADMINISTRATIVE CONTROL OF THE MEDICAL CENTER. THE RECORD
INDICATES THAT A PRINCIPAL OBJECTIVE OF THE REORGANIZATION WAS TO
PROVIDE THE DISPENSARIES WITH DIRECT ADMINISTRATIVE ACCESS TO THE
HOSPITAL FACILITIES AND SERVICES, RATHER THAN REQUIRING THE DISPENSARIES
TO SEEK SUCH ASSISTANCE AND SERVICES THROUGH REQUESTS FROM THE
COMMANDERS OF THE VARIOUS FACILITIES AT WHICH THEY WERE LOCATED.
PURSUANT TO THE REORGANIZATION, THE DISPENSARIES HAD THEIR
ADMINISTRATIVE RECORDS TRANSFERRED TO THE MEDICAL CENTER, THEIR OVERALL
DIRECTION NOW EMANATES FROM THE MEDICAL CENTER, AND THE CENTER WAS GIVEN
ULTIMATE AUTHORITY WITH RESPECT TO HIRING POLICIES, AS WELL AS AUTHORITY
TO RESOLVE GRIEVANCES, APPROVE PROMOTIONS AND TRANSFERS, AND ESTABLISH
REDUCTION IN FORCE AREAS.
THE RECORD DISCLOSES THAT WHILE, PURSUANT TO THE REORGANIZATION, THE
ADMINISTRATIVE CONTROL OF THE DISPENSARIES HAS BEEN TRANSFERRED TO THE
MEDICAL CENTER, THE MISSION OF THE DISPENSARIES, I.E., THE PROVISION OF
MEDICAL CARE FOR THE EMPLOYEES OF THE VARIOUS INSTALLATIONS AT WHICH
THEY ARE LOCATED, HAS REMAINED UNCHANGED. FURTHERMORE, THE
DISPENSARIES' PERSONNEL CONTINUE TO UTILIZE SPECIALIZED JOB SKILLS WHICH
THE HOSPITAL PERSONNEL DO NOT SHARE. THE RECORD DISCLOSES ALSO THAT THE
REORGANIZATION DID NOT LEAD TO ANY PERSONNEL REASSIGNMENTS OR
INTERCHANGE OF THE NONPROFESSIONAL EMPLOYEES OF THE HOSPITAL AND THE
DISPENSARIES, THAT THE IMMEDIATE SUPERVISION OF THE EMPLOYEES OF THE
DISPENSARIES HAS REMAINED UNCHANGED; AND THAT, WHILE THE RECORDS AND
THE ADMINISTRATIVE CONTROL OF THE VARIOUS DISPENSARIES WERE TRANSFERRED
TO THE MEDICAL CENTER, THE DAY-TO-DAY CONTROL AND DIRECTION OF THE
EMPLOYEES REMAINS AT THE DISPENSARY LEVEL AS IT HAD BEEN PRIOR TO THE
REORGANIZATION. IN THIS LATTER REGARD, THE RECORD REVEALS THAT INITIAL
GRIEVANCES ARE FILED WITH THE SUPERVISORS AT THE DISPENSARIES IN
QUESTION AND PERFORMANCE EVALUATIONS, WHILE ULTIMATELY APPROVED AT THE
MEDICAL CENTER, ARE MADE INITIALLY AT THE DISPENSARIES. MOREOVER, THERE
HAS BEEN NO PHYSICAL RELOCATION OF THE NONPROFESSIONAL EMPLOYEES FROM
THE DISPENSARIES TO THE HOSPITAL OR VICE VERSA; THE AVERAGE DISTANCE
BETWEEN THE DISPENSARIES AND THE HOSPITAL IS, AS NOTED ABOVE, SOME 70
MILES; LEAVE IS APPROVED AT THE DISPENSARIES; RECOMMENDATIONS FOR
PROMOTIONS AND AWARDS ARE MADE AT THE DISPENSARIES; AND EMPLOYEE
DISCIPLINE ORIGINATES AT THE DISPENSARIES. ALTHOUGH STAFFING,
RECRUITING AND VACATION POLICIES ARE ESTABLISHED AT THE MEDICAL CENTER,
IMPLEMENTATION OF THESE POLICIES IS EFFECTUATED AT THE DISPENSARY LEVEL
SUBJECT TO THE PARTICULAR NEEDS OF THE DISPENSARY INVOLVED.
UNDER ALL OF THESE CIRCUMSTANCES, I FIND INSUFFICIENT BASIS TO
SUPPORT THE ACTIVITY-PETITIONER'S CONTENTION THAT THE EMPLOYEES AT THE
DISPENSARIES HAVE ACCRETED TO THE UNIT AT THE NAVAL HOSPITAL REPRESENTED
EXCLUSIVELY BY THE AFGE. IN THIS REGARD, PARTICULAR NOTE WAS TAKEN OF
THE FACT THAT, NOTWITHSTANDING THE REORGANIZATION, THE EMPLOYEES AT THE
VARIOUS DISPENSARIES HAVE REMAINED AT THE PARTICULAR LOCATIONS WHERE
THEY WERE LOCATED PRIOR TO THE REORGANIZATION, PERFORMING THE SAME WORK
UNDER THE SAME IMMEDIATE SUPERVISION AS BEFORE. MOREOVER, THE EVIDENCE
FAILED TO REVEAL ANY SIGNIFICANT DEGREE OF INTERCHANGE, TRANSFER OR
COMMINGLING BETWEEN THE DISPENSARIES' PERSONNEL AND THE HOSPITAL
EMPLOYEES. ACCORDINGLY, I FIND THAT THE EMPLOYEES IN THE DISPENSARIES
HAVE NOT ACCRETED TO THE AFGE'S EXISTING EXCLUSIVELY REPRESENTED UNIT AT
THE NAVAL HOSPITAL, AND THAT THE EMPLOYEES IN THE VARIOUS DISPENSARIES
WHO ARE PART OF BROADER UNITS AT THE PARTICULAR FACILITIES INVOLVED
REMAIN A PART OF THOSE UNITS. /4/ IN THESE CIRCUMSTANCES, I SHALL ORDER
THAT THE PETITION HEREIN BE DISMISSED.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 20-4579(CU) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 16, 1975
/1/ THE NAME OF THE INTERVENOR, PHILADELPHIA METAL TRADES COUNCIL,
AFL-CIO, HEREIN CALLED MTC, APPEARS AS AMENDED AT THE HEARING.
/2/ EIGHT OF 13 DISPENSARIES, CONTAINING SOME 50 NONPROFESSIONAL
EMPLOYEES, CURRENTLY ARE ENCOMPASSED WITHIN BROADER UNITS REPRESENTED
EXCLUSIVELY BY LABOR ORGANIZATIONS AT THE PARTICULAR FACILITIES AT WHICH
THEY ARE LOCATED. THESE LABOR ORGANIZATIONS ARE THE AFGE, THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES (NFFE), THE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES (NAGE), AND THE MTC. THE EIGHT DISPENSARIES ARE
LOCATED AT THE NAVAL TRAINING CENTER, BAINBRIDGE, MARYLAND; THE NAVAL
AIR TRAINING STATION, LAKEHURST, NEW JERSEY; THE NAVAL AIR DEVELOPMENT
CENTER, WARMINSTER, PENNSYLVANIA; THE NAVAL AIR STATION, WILLOW GROVE,
PENNSYLVANIA; THE NAVAL PUBLICATIONS AND FORMS CENTER, PHILADELPHIA,
PENNSYLVANIA; THE NAVAL REGIONAL CLINIC, ST. ALBANS, NEW YORK; THE
PHILADELPHIA NAVAL SHIPYARD, PHILADELPHIA, PENNSYLVANIA; AND THE NAVAL
HOME, PHILADELPHIA, PENNSYLVANIA.
/3/ ALTHOUGH THE ACTIVITY-PETITIONER CONTENDS THE EXISTING
EXCLUSIVELY RECOGNIZED UNIT IS NO LONGER APPROPRIATE, IT SHOULD BE NOTED
THAT A CU PETITION IS NOT AN APPROPRIATE VEHICLE FOR SEEKING SUCH A
DETERMINATION. CF. HEADQUARTERS, U.S. ARMY AVIATION SYSTEMS COMMAND,
ST. LOUIS, MISSOURI, A/SLMR NO. 160. MOREOVER, AS THE
ACTIVITY-PETITIONER IS NOT PETITIONING FOR AN ELECTION IN THE INSTANT
PROCEEDING IT IS EVIDENT THAT IT DID NOT INADVERTENTLY FILE THE INSTANT
CU PETITION INSTEAD OF AN RA PETITION. UNDER THESE CIRCUMSTANCES, I
SHALL CONSIDER THE CU PETITION IN THIS CASE AS ADDRESSED TO THE SOLE
ISSUE OF WHETHER THE EMPLOYEES OF THE VARIOUS DISPENSARIES HAVE, AS A
RESULT OF A REORGANIZATION, ACCRETED TO THE EXCLUSIVELY RECOGNIZED UNIT
AT THE PHILADELPHIA NAVAL HOSPITAL, WHICH UNIT'S CONTINUED EXISTENCE
AFTER THE REORGANIZATION IS NOT DEEMED TO BE PROPERLY CHALLENGED IN THE
INSTANT PROCEEDING.
/4/ THERE WAS NO EVIDENCE THAT DISPENSARY EMPLOYEES WHO ARE PART OF
BROADER, EXISTING UNITS HAVE BEEN DENIED FAIR AND EFFECTIVE
REPRESENTATION BY THEIR CURRENT EXCLUSIVE REPRESENTATIVES.
5 A/SLMR 557; P. 592; CASE NO. 35-3202(CA); SEPTEMBER 16, 1975.
UNITED STATES AIR FORCE,
380TH COMBAT SUPPORT GROUP,
PLATTSBURGH AIR FORCE BASE, N.Y.
A/SLMR NO. 557
THIS CASE INVOLVED A COMPLAINT FILED BY MARY J. PEMBERTON, STEWARD,
NFFE LOCAL 368 (COMPLAINANT) AGAINST THE UNITED STATES AIR FORCE, 380TH
COMBAT SUPPORT GROUP, PLATTSBURGH AIR FORCE BASE, N.Y. (RESPONDENT)
ALLEGING A VIOLATION OF SECTION 19(A)(1) OF THE EXECUTIVE ORDER.
ALTHOUGH THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT THE RESPONDENT HAD
VIOLATED THE ORDER BY THE ACTIONS OF ITS SUPERVISOR IN HARASSING,
ABUSING, BERATING, AND BROWBEATING THE COMPLAINANT, THE COMPLAINANT
ATTEMPTED TO LITIGATE THE ISSUE OF AN ALLEGED DENIAL OF UNION
REPRESENTATION AT A MEETING WITH HER SUPERVISOR ON NOVEMBER 14, 1973,
WHEREIN THE COMPLAINANT'S ALLEGED WORK DEFICIENCIES WERE DISCUSSED. THE
RESPONDENT CONTENDED, AMONG OTHER THINGS, THAT THE ISSUE WHICH THE
COMPLAINANT ATTEMPTED TO LITIGATE WAS BEYOND THE SCOPE OF THE COMPLAINT.
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THE ASSISTANT
SECRETARY FOUND THAT THE BASIS SET FORTH IN THE INSTANT COMPLAINT WAS
INSUFFICIENT TO PRESENT THE ISSUE OF AN ALLEGED VIOLATION OF SECTION
19(A)(1) BASED UPON THE ASSERTED DENIAL OF UNION REPRESENTATION AT THE
NOVEMBER 14, 1973, MEETING. IN THIS REGARD, THE ASSISTANT SECRETARY
NOTED THAT THE ASSISTANT REGIONAL DIRECTOR HAD DISMISSED THE COMPLAINT
WITH REGARD TO THE ". . . ALLEGATION OF HARASSMENT," BUT INDICATED THAT
A NOTICE OF HEARING WOULD BE ISSUED" REGARDING THE REMAINDER OF THE
COMPLAINT . . ." IN THE ASSISTANT SECRETARY'S VIEW, AN ALLEGATION OF
HARASSMENT BASED ON DISCRIMINATORY CONSIDERATIONS AND AN ALLEGATION OF
DENIAL OF REPRESENTATION ARE CLEARLY SEPARATE AND DISTINCT CAUSES OF
ACTION WHICH MUST BE SEPARATELY AND AFFIRMATIVELY ALLEGED IN A
COMPLAINT. THUS, THE ASSISTANT SECRETARY FOUND THAT, IN THE INSTANT
CASE, THE ISSUE OF DENIAL OF REPRESENTATION WAS BEYOND THE SCOPE OF THE
COMPLAINT.
THE ASSISTANT SECRETARY REJECTED THE COMPLAINANT'S ARGUMENT THAT THE
PRE-COMPLAINT CHARGE SHOULD BE READ IN CONJUNCTION WITH THE COMPLAINT SO
AS TO INCORPORATE IN THE COMPLAINT THE SPECIFIC ALLEGATION OF DENIAL OF
REPRESENTATION CONTAINED IN THE CHARGE. HE NOTED THAT THE EXISTING
PROCEDURE OF FILING A PRE-COMPLAINT CHARGE DIRECTLY WITH THE PARTY OR
PARTIES AGAINST WHOM THE CHARGE IS FILED HAD ITS INCEPTION IN THE
EXPRESSED POLICY OF THE STUDY COMMITTEE'S REPORT AND RECOMMENDATIONS
THAT THE PARTIES INVOLVED SHOULD INVESTIGATE AND ATTEMPT TO INFORMALLY
RESOLVE SUCH ALLEGATIONS PRIOR TO SUBMITTING THEM TO THE ASSISTANT
SECRETARY FOR DECISION. IN THE VIEW OF THE ASSISTANT SECRETARY, TO
CONSTRUE A COMPLAINT AS AUTOMATICALLY CONTAINING THE ALLEGATIONS
CONTAINED IN THE PRE-COMPLAINT CHARGE AS, IN EFFECT, ARGUED HEREIN BY
THE COMPLAINANT, WOULD BE TO RENDER THE PRESCRIBED PROCESS OF INFORMAL
RESOLUTION MEANINGLESS.
UNDER THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY ORDERED THAT THE
COMPLAINT BE DISMISSED.
UNITED STATES AIR FORCE,
380TH COMBAT SUPPORT GROUP,
PLATTSBURGH AIR FORCE BASE, N.Y.
AND
MARY J. PEMBERTON
STEWARD, NFFE LOCAL 368
ON APRIL 17, 1975, ADMINISTRATIVE LAW JUDGE MILTON KRAMER ISSUED HIS
REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT
DISMISSAL OF THE INSTANT COMPLAINT WAS WARRANTED IN THAT THE BASIS OF
THE ALLEGED VIOLATION SOUGHT TO BE LITIGATED WAS NOT SET FORTH IN THE
COMPLAINT. THEREAFTER, THE COMPLAINANT FILED EXCEPTIONS WITH RESPECT TO
THE ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATION AND SUPPORTING
BRIEF, AND RESPONDENT FILED AN ANSWERING BRIEF. /1/
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION, AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE
COMPLAINANT'S EXCEPTIONS AND SUPPORTING BRIEF AND THE RESPONDENT'S
ANSWERING BRIEF, I HEREBY ADOPT THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS TO THE EXTENT CONSISTENT HEREWITH.
THE ADMINISTRATIVE LAW JUDGE FOUND, AND I CONCUR, THAT THE BASIS SET
FORTH IN THE INSTANT COMPLAINT WAS INSUFFICIENT TO PRESENT THE ISSUE OF
AN ASSERTED VIOLATION OF SECTION 19(A)(1) BASED UPON THE ALLEGED CONDUCT
OF THE RESPONDENT'S SUPERVISOR IN DENYING THE COMPLAINANT THE PRESENCE
OF HER UNION REPRESENTATIVE AT A MEETING WHEREIN COMPLAINANT'S ALLEGED
WORK DEFICIENCIES WERE TO BE DISCUSSED. AS MORE FULLY SET FORTH IN THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATION, THE ENTIRE BASIS
OF THE COMPLAINT REFERS TO THE ASSERTED CONDUCT OF THE RESPONDENT'S
SUPERVISOR IN HARASSING, ABUSING, BERATING, AND BROWBEATING THE
COMPLAINANT BECAUSE OF THE COMPLAINANT'S HAVING FILED AN APPEAL OF A
REPRIMAND AND AN UNFAIR LABOR PRACTICE COMPLAINT. /2/ THEREAFTER, BY
LETTER DATED AUGUST 28, 1974, THE ASSISTANT REGIONAL DIRECTOR DISMISSED
THE COMPLAINT WITH REGARD TO ". . . THE ALLEGATION OF HARASSMENT . . ."
BASED ON SECTION 19(D) OF THE ORDER BUT INDICATED THAT A NOTICE OF
HEARING WOULD BE ISSUED "REGARDING THE REMAINDER OF THE COMPLAINT . . ."
BASED ON THE ASSISTANT REGIONAL DIRECTOR'S CONCLUSION THAT THERE WAS
REASON TO BELIEVE THAT THE COMPLAINANT'S SECTION 1(A) /3/ AND 10(E)
RIGHTS HAD BEEN VIOLATED DURING THE COURSE OF A MEETING BETWEEN THE
COMPLAINANT AND HER SUPERVISOR.
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, I FIND THAT THE
ASSISTANT REGIONAL DIRECTOR IMPROPERLY ISSUED A NOTICE OF HEARING IN
THIS MATTER ON AL ALLEGATION WHICH WAS NOT ALLEGED IN THE COMPLAINT. IN
MY VIEW, AN ALLEGATION OF "HARASSMENT" BASED ON DISCRIMINATORY
CONSIDERATIONS AND AN ALLEGATION OF "DENIAL OF REPRESENTATION" ARE
CLEARLY SEPARATE AND DISTINCT CAUSES OF ACTION WHICH, FOR THE PURPOSES
OF ADJUDICATION, MUST BE SEPARATELY AND AFFIRMATIVELY ALLEGED IN A
COMPLAINT. THUS, I FIND THAT, IN THE INSTANT CASE, THE ISSUE OF DENIAL
OF REPRESENTATION WAS BEYOND THE SCOPE OF THE COMPLAINT. /4/ THE
COMPLAINANT'S ARGUMENT BEFORE THE ADMINISTRATIVE LAW JUDGE, REITERATED
IN THE EXCEPTIONS AND SUPPORTING BRIEF FILED HEREIN, THAT THE
PRE-COMPLAINT CHARGE FILED BY THE COMPLAINANT IN THIS MATTER SHOULD BE
READ IN CONJUNCTION WITH THE COMPLAINT SO AS TO INCORPORATE IN THE
COMPLAINT THE SPECIFIC ALLEGATION OF DENIAL OF REPRESENTATION CONTAINED
IN THE CHARGE IS REJECTED. /5/ WHILE I AGREE THAT THE REQUIREMENTS OF
THE ASSISTANT SECRETARY'S REGULATIONS SHOULD BE CONSTRUED LIBERALLY SO
AS TO PROTECT THE RIGHTS OF PARTIES, /6/ I CANNOT AGREE THAT THE
REGULATIONS SHOULD BE SO LIBERALLY APPLIED, AS ARGUED HERE BY THE
COMPLAINANT, AS TO READ INTO A COMPLAINT ALLEGATIONS CONTAINED IN A
PRE-COMPLAINT CHARGE BUT NOT CONTAINED IN THE SUBSEQUENTLY FILED
COMPLAINT.
THE EXISTING PROCEDURE OF INITIALLY FILING A WRITTEN CHARGE DIRECTLY
WITH THE PARTY OR PARTIES AGAINST WHOM THE CHARGE IS DIRECTED AND,
THEREAFTER, FILING A COMPLAINT WITH THE ASSISTANT SECRETARY IF THE
PARTIES ARE UNABLE TO DISPOSE INFORMALLY OF THE CHARGE WITHIN A
PRESCRIBED PERIOD, /7/ HAD ITS INCEPTION IN THE STUDY COMMITTEE'S REPORT
AND RECOMMENDATIONS WHICH LED TO THE ISSUANCE OF EXECUTIVE ORDER 11491.
IN THIS REGARD, THE STUDY COMMITTEE RECOMMENDED THAT THE PARTIES
INVOLVED IN THE ALLEGED UNFAIR LABOR PRACTICE SHOULD INVESTIGATE AND
INFORMALLY ATTEMPT TO RESOLVE SUCH ALLEGATIONS PRIOR TO SUBMITTING THE
MATTER TO THE ASSISTANT SECRETARY FOR DECISION. /8/ THUS, IN THE
PROCESSING OF UNFAIR LABOR PRACTICE CASES THE FAILURE OF A COMPLAINANT
TO INCLUDE IN ITS COMPLAINT SPECIFIC ALLEGATIONS OF UNFAIR LABOR
PRACTICES PREVIOUSLY CONTAINED IN ITS PRE-COMPLAINT CHARGE WILL BE
CONSIDERED TO BE ATTRIBUTABLE TO THE PARTIES' INFORMAL RESOLUTION OF
THOSE MATTERS. IN MY VIEW, TO CONSTRUE A COMPLAINT AS AUTOMATICALLY
CONTAINING THE ALLEGATIONS CONTAINED IN THE PRE-COMPLAINT CHARGE AS, IN
EFFECT, ARGUED HERE BY THE COMPLAINANT, WOULD BE TO RENDER THE
PRESCRIBED PROCESS OF INFORMAL RESOLUTION MEANINGLESS.
UNDER THESE CIRCUMSTANCES, AND IN AGREEMENT WITH THE ADMINISTRATIVE
LAW JUDGE, I FIND THAT THE RESPONDENT'S ALLEGED CONDUCT IN DENYING
COMPLAINANT THE PRESENCE OF HER UNION REPRESENTATIVE AT A MEETING HELD
WITH A SUPERVISOR ON NOVEMBER 14, 1973, WAS BEYOND THE SCOPE OF THE
COMPLAINT HEREIN, AND, ACCORDINGLY, I SHALL ORDER THE INSTANT COMPLAINT
BE DISMISSED IN ITS ENTIRETY.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 35-3202(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 16, 1975
/1/ THE COMPLAINANT MADE A MOTION TO DENY CONSIDERATION OF THE
RESPONDENT'S ANSWERING BRIEF ON THE BASIS THAT SUCH BRIEF WAS FILED
UNTIMELY. IN THIS REGARD, THE RESPONDENT'S ANSWERING BRIEF, RECEIVED BY
THE ASSISTANT SECRETARY ON JUNE 13, 1975, WAS CONSIDERED TO BE TIMELY AS
THE RESPONDENT WAS GRANTED AN EXTENSION OF TIME TO JUNE 16, 1975, IN
WHICH TO FILE SUCH A BRIEF. ACCORDINGLY, THE COMPLAINANT'S MOTION IS
HEREBY DENIED.
/2/ IN THIS LATTER REGARD, SEE 380TH COMBAT SUPPORT GROUP,
PLATTSBURGH AIR FORCE, PLATTSBURGH, NEW YORK, A/SLMR NO. 493.
/3/ THE ADMINISTRATIVE LAW JUDGE MISTAKENLY INTERPRETED THE ASSISTANT
REGIONAL DIRECTOR'S LETTER TO READ "19(A)(1)" RIGHTS. THIS INADVERTENT
ERROR IS HEREBY CORRECTED.
/4/ CF. DEPARTMENT OF THE ARMY, DIRECTORATE, UNITED STATES DEPENDENT
SCHOOLS, EUROPEAN AREA (USDESEA) APO, NEW YORK, A/SLMR NO. 138.
/5/ IT WAS NOTED, IN THIS CONNECTION, THAT THE COMPLAINANT HERSELF
DISTINGUISHED BETWEEN THE ALLEGATION OF "HARASSMENT" AND "DENIAL OF
REPRESENTATION" WHEN FILING THE PRE-COMPLAINT CHARGE. IT WAS NOTED
FURTHER THAT THE COMPLAINANT DID NOT ATTEMPT TO AMEND THE COMPLAINT SO
AS TO ALLEGE SPECIFICALLY THE ALLEGED IMPROPER DENIAL OF REPRESENTATION.
/6/ SEE SECTION 206.9 OF THE ASSISTANT SECRETARY'S REGULATIONS.
/7/ SEE SECTION 203.2 OF THE ASSISTANT SECRETARY'S REGULATIONS.
/8/ SEE STUDY COMMITTEE REPORT AND RECOMMENDATIONS, AUGUST 1969, AT
PAGE 41. THIS POLICY HAS CONTINUED SINCE THAT TIME AS REFLECTED IN THE
RECENT COMMENTS OF THE FEDERAL LABOR RELATIONS COUNCIL CONTAINED IN THE
REPORT AND RECOMMENDATIONS OF THE FEDERAL LABOR RELATIONS COUNCIL ON THE
AMENDMENT OF EXECUTIVE ORDER 11491, AS AMENDED, JANUARY 1975, AT PAGES
48-49.
IN THE MATTER OF
UNITED STATES AIR FORCE
PLATTSBURGH AIR FORCE BASE
380TH COMBAT SUPPORT GROUP
AND
MARY J. PEMBERTON
STEWARD, NFFE LOCAL 368
JOHN P. HELM, ESQ.
STAFF ATTORNEY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET, N.W.
WASHINGTON, D.C. 20006
CAPTAIN WILLIAM C. WALKER, ESQ.
UNITED STATES AIR FORCE
HEADQUARTERS, STRATEGIC AIR COMMAND
OMAHA, NEBRASKA 68113
BEFORE: MILTON KRAMER
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491 AS AMENDED. IT WAS
INITIATED BY A COMPLAINT DATED MAY 16, 1974 AND FILED MAY 20, 1974. THE
COMPLAINANT WAS MARY J. PEMBERTON. AT THE HEARING THE COMPLAINT WAS
AMENDED TO DENOMINATE THE COMPLAINANT AS MARY J. PEMBERTON, STEWARD
NFFE LOCAL 368. /1/ THE COMPLAINT ALLEGED THAT THE RESPONDENT, BY ITS
AGENT AND REPRESENTATIVE CAPTAIN ROBERT B. STURMAN, HAD HARASSED,
ABUSED, BERATED, AND BROWBEATEN MRS. PEMBERTON BECAUSE SHE HAD APPEALED
A REPRIMAND AND FILED AN UNFAIR LABOR PRACTICE CHARGE AGAINST CAPTAIN
STURMAN DATED NOVEMBER 1, 1973. SUCH CONDUCT WAS ALLEGED TO BE IN
VIOLATION OF SECTIONS 19(A)(1) AND (4) OF THE EXECUTIVE ORDER. UNDER
DATE OF MAY 21, 1974, THE RESPONDENT FILED AN ANSWER TO THE COMPLAINT.
ON AUGUST 28, 1974, THE ASSISTANT REGIONAL DIRECTOR DISMISSED THE
COMPLAINT INSOFAR AS IT ALLEGED HARASSMENT OF THE COMPLAINANT. /2/ THE
DISMISSAL WAS BASED ON INFORMATION AVAILABLE TO THE ASSISTANT REGIONAL
DIRECTOR THAT THE COMPLAINANT HAD FILED A GRIEVANCE, NOT IN THE RECORD
BEFORE ME, OVER THOSE MATTERS BEFORE FILING THE COMPLAINT IN THIS CASE
AND HENCE WAS PRECLUDED BY SECTION 19(D) OF THE EXECUTIVE ORDER FROM
PURSUING THOSE MATTERS AS AN UNFAIR LABOR PRACTICE. NO APPEAL WAS TAKEN
FROM THAT DISMISSAL. /3/
IN HIS LETTER OF DISMISSAL THE ASSISTANT REGIONAL DIRECTOR STATED
ALSO THAT INVESTIGATION HAD SHOWN THAT THERE WAS REASON TO BELIEVE THAT
ON NOVEMBER 11, 1973 A VIOLATION OF SECTION 19(A)(1) AND 10(E) /4/ MAY
HAVE OCCURRED DURING THE COURSE OF A MEETING BETWEEN MRS. PEMBERTON AND
HER SUPERVISOR, AND THAT A NOTICE OF HEARING WOULD BE ISSUED ON THAT
PORTION OF THE COMPLAINT.
ON SEPTEMBER 27, 1974, THE ASSISTANT REGIONAL DIRECTOR ISSUED A
NOTICE OF HEARING TO BE HELD OCTOBER 10, 1974 IN PLATTSBURGH, NEW YORK
ON THE ALLEGED VIOLATION OF SECTION 19(A)(1) OF THE EXECUTIVE ORDER. ON
OCTOBER 1, 1974 HE ISSUED AN ORDER RESCHEDULING THE HEARING TO DECEMBER
10, 1974.
ON NOVEMBER 29, 1974 THE RESPONDENT SUBMITTED TO THE ASSISTANT
REGIONAL DIRECTOR A MOTION FOR DISMISSAL OF THE COMPLAINT IN ACCORDANCE
WITH REPORT NO. 48 FOR LACK OF SPECIFICITY. THE ASSISTANT REGIONAL
DIRECTOR DENIED THE MOTION.
PURSUANT TO THE NOTICE OF HEARING AND ORDER RESCHEDULING HEARING, A
HEARING WAS HELD BEFORE ME ON DECEMBER 10, 1974 IN PLATTSBURGH, NEW
YORK. BOTH SIDES WERE REPRESENTED BY COUNSEL. THE RESPONDENT RENEWED
BEFORE ME THE MOTION FOR DISMISSAL IT HAD MADE TO THE ASSISTANT REGIONAL
DIRECTOR. /5/ THE MOTION IN ESSENCE WAS A REQUEST FOR A BILL OF
PARTICULARS ON THE CONDUCT CONSTITUTING THE ALLEGED HARASSMENT AND ABUSE
OF MRS. PEMBERTON. /6/ THE COMPLAINANT STATED IN OPEN HEARING THAT THE
CONDUCT REFERRED TO IN THE COMPLAINT WAS THE CONDUCT REFERRED TO WITH
SPECIFICITY IN THE UNFAIR LABOR PRACTICE CHARGE SERVED ON RESPONDENT
PRIOR TO THE FILING OF THE COMPLAINT PURSUANT TO SECTION 203.2(A) OF THE
REGULATIONS. /7/ THE MOTION WAS DENIED. THE RESPONDENT THEN WITHDREW
THE MOTION, AND ITS DENIAL WAS RESCINDED. /8/
AT THE CONCLUSION OF THE HEARING THE TIME FOR FILING BRIEFS WAS
EXTENDED TO JANUARY 29, 1975. BOTH PARTIES FILED BRIEFS.
THE COMPLAINT ALLEGES AS THE "BASIS OF THE COMPLAINT", IN ITS
ENTIRETY, AS FOLLOWS:
"THE 380TH COMBAT SUPPORT GROUP, PLATTSBURGH AIR FORCE BASE, NEW
YORK, BY ITS AGENT AND
REPRESENTATIVE, CAPT. ROBERT B. STURMAN, HAS HARASSED, ABUSED,
BERATED AND BROWBEAT ME
UNJUSTLY AND UNMERCIFULLY BECAUSE OF MY APPEAL OF A REPRIMAND AND MY
FILING AN UNFAIR LABOR
CHARGE AGAINST HIM DATED 1 NOVEMBER 1973. HEARING ON THAT CASE IS
SCHEDULED FOR 4 JUNE
1974." /9/
THE ASSISTANT REGIONAL DIRECTOR ASCERTAINED THAT THE COMPLAINANT HAD
FILED A GRIEVANCE COVERING THE SAME MATTER. IN HIS LETTER OF AUGUST 28,
1974 TO THE COMPLAINANT HE STATED:
"SINCE YOU ELECT TO FILE A GRIEVANCE COVERING THE ALLEGATION OF
HARASSMENT AND YOUR
COMPLIANCE WITH ORDERS ISSUED BY YOUR SUPERVISOR AS SET FORTH IN YOUR
LETTER OF MARCH 19,
1974, AND AS REFLECTED IN THE GRIEVANCE OFFICER'S LETTER TO YOU DATED
APRIL 12, 1974, THIS
OFFICE CANNOT ASSERT JURISDICTION IN THIS MATTER. ACCORDINGLY, THIS
PORTION OF THE COMPLAINT
IS DISMISSED." /10/
WHAT WAS DISMISSED, ACCORDING TO THAT LETTER, WAS THE ALLEGATION OF
HARASSMENT, WHICH WAS THE TOTALITY OF THE "BASIS OF THE COMPLAINT", AND
"YOUR COMPLIANCE WITH ORDERS ISSUED BY YOUR SUPERVISOR", WHICH
ALLEGATION DOES NOT APPEAR IN THE COMPLAINT. NEITHER THE COMPLAINANT'S
LETTER OF MARCH 19, 1974 NOR THE "GRIEVANCE OFFICER'S LETTER . . . DATED
APRIL 12, 1974" IS IN THE RECORD. INDEED, THE ASSISTANT REGIONAL
DIRECTOR'S LETTER OF AUGUST 28, 1974 WAS NOT FURNISHED UNTIL AFTER THE
HEARING BEGAN. /11/
AFTER DISMISSING WHAT APPEARS TO HAVE BEEN THE TOTALITY OF THE
COMPLAINT, THE ASSISTANT REGIONAL DIRECTOR CONTINUED:
"REGARDING THE REMAINDER OF THE COMPLAINT, INVESTIGATION REVEALS
THERE IS REASON TO BELIEVE
THAT A VIOLATION OF YOUR RIGHTS AS SET FORTH IN SECTIONS 19(A)(1) AND
10(E)) OF THE EXECUTIVE
ORDER MAY HAVE OCCURRED ON (NOVEMBER 14, 1973) DURING THE COURSE OF A
MEETING BETWEEN YOU AND
YOUR SUPERVISOR. A NOTICE OF HEARING WILL ISSUE COVERING THIS
PORTION OF THE ALLEGATION."
I CAN FIND NO SUCH ALLEGATION IN THE COMPLAINT. THE "BASIS OF THE
COMPLAINT" DOES NOT SET FORTH ANY FACTS THAT WOULD GIVE "REASON TO
BELIEVE THAT A VIOLATION" OF SECTION 10(E) HAD OCCURRED. I FIND NOTHING
IN THE REGULATIONS THAT GIVES THE ASSISTANT REGIONAL DIRECTOR AUTHORITY
TO ORDER A HEARING ON AN ISSUE THAT CANNOT BE REASONABLY FOUND IN THE
COMPLAINT SIMPLY BECAUSE "INVESTIGATION REVEALS" THAT SUCH A VIOLATION
MAY HAVE OCCURRED. THE NOTICE OF HEARING IS DENOMINATED A "NOTICE OF
HEARING ON COMPLAINT". SECTION 203.8 OF THE REGULATIONS AUTHORIZES THE
ASSISTANT REGIONAL DIRECTOR TO ISSUE A NOTICE OF HEARING IF HE FINDS
"THERE IS A REASONABLE BASIS FOR THE COMPLAINT". IT DOES NOT AUTHORIZE
HIM TO ISSUE A NOTICE OF HEARING ON A COMPLAINT THAT HAS NOT BEEN FILED.
IN THE COMPLAINT IN THIS CASE THERE ARE NO ALLEGATIONS THAT CAN BE
CONSTRUED TO INCLUDE A VIOLATION OF SECTION 10(E).
THE COMPLAINANT ARGUES THAT THE COMPLAINT MUST BE READ TOGETHER WITH
THE CHARGE MADE TO THE RESPONDENT PURSUANT TO SECTION 203.2(A)(1) OF THE
REGULATIONS AND THE REPORT OF INVESTIGATION MADE PURSUANT TO SECTION
203.2(A)(4) AND FILED PURSUANT TO SECTION 203.3(B). THE REPORT OR
REPORTS OF INVESTIGATION ARE NOT IN THE RECORD BEFORE ME. THE CHARGE
MADE PURSUANT TO SECTION 203.2(A)(1) IS IN THE RECORD AS EXHIBIT C-1. A
COPY WAS NOT ATTACHED TO THE COMPLAINT; AT LEAST A COPY WAS NOT
ATTACHED TO THE COPY OF THE COMPLAINT THAT WAS FURNISHED TO ME BY THE
REGIONAL OFFICE. /12/
THE CHARGING LETTER CAN SERVE PERHAPS AS A BILL OF PARTICULARS FOR
GENERAL ALLEGATIONS IN A COMPLAINT, AND THAT WAS DONE HERE. BUT IT
CANNOT SERVE TO ADD ADDITIONAL ALLEGATIONS NOT INCLUDED IN GENERAL
ALLEGATIONS IN THE COMPLAINT. THE CHARGING LETTER DOES CLEARLY STATE
THAT AT A MEETING WITH A SUPERVISOR ON NOVEMBER 14, 1973:
". . . I REQUESTED MY REPRESENTATIVE BE PRESENT. I MADE THE REQUEST
THREE TIMES AND WAS
DENIED THREE TIMES . . ."
SUCH STATEMENT CLEARLY INDICATES THE POSSIBILITY OF A VIOLATION OF
SECTION 10(E) OF THE EXECUTIVE ORDER AND THEREFORE A POSSIBLE VIOLATION
OF SECTION 19(A)(1). BUT THE CHARGING LETTER IS NOT PART OF THE
COMPLAINT. /13/ THERE IS NO OBLIGATION ON THE PART OF A COMPLAINANT TO
INCLUDE IN THE COMPLAINT EVERYTHING COMPLAINED OF IN THE CHARGING
LETTER. ONE OR MORE ITEMS IN THE CHARGING LETTER MAY BE OMITTED FROM
THE COMPLAINT FOR ANY OF A VARIETY OF REASONS. I FIND NOTHING IN THE
COMPLAINT THAT CAN BE CONSTRUED TO INCLUDE A VIOLATION OF SECTION 10(E).
THE RESPONDENT OBJECTED TO A VIOLATION OF SECTION 10(E) BEING IN ISSUE
IN THIS CASE. /14/
I CONCLUDE THAT THIS CASE DOES NOT PRESENT AN ISSUE OF A VIOLATION OF
SECTION 10(E) OF THE EXECUTIVE ORDER AND THEREFORE A VIOLATION OF
SECTION 19(A)(1) BECAUSE THE COMPLAINT DOES NOT PRESENT SUCH ISSUE.
THIS IS NOT TO SAY THAT A COMPLAINT SHOULD BE READ STRICTLY AND
INTERPRETED IN ACCORDANCE WITH THE RULES OF COMMON-LAW PLEADING. /15/
ON THE CONTRARY, I BELIEVE THAT IN ACCORDANCE WITH THE SPIRIT OF SECTION
206.8(A) OF THE REGULATIONS IT SHOULD BE CONSTRUED LIBERALLY TO
EFFECTUATE THE PURPOSES AND PROVISIONS OF THE EXECUTIVE ORDER. /16/ BUT
I CANNOT READ A COMPLAINT TO CONTAIN SOMETHING THAT IS NOT THERE OR EVEN
SUGGESTED BY THE COMPLAINT.
I REACH THIS CONCLUSION REGRETFULLY. BUT WE MUST HAVE SOME
STANDARDS, HOWEVER LAX YET ARE STILL STANDARDS, ON HOW ISSUED ARE
PRESENTED FOR ADJUDICATION. MY REGRET IS SOMEWHAT TEMPERED BY THE
DUBIETY OF WHETHER THERE WAS IN FACT A VIOLATION OF SECTION 10(E) OF THE
EXECUTIVE ORDER AS CONSTRUED BY THE ASSISTANT SECRETARY.
I RECOMMEND THAT THE COMPLAINT BE DISMISSED.
DATED: APRIL 17, 1975
WASHINGTON, D.C.
/1/ TR. 13, 17.
/2/ EXH. AS-5.
/3/ TR. 6.
/4/ THE LETTER INCORRECTLY REFERRED TO "SECTIONS 1(A) AND 19(E)" BUT
IT IS OBVIOUS THAT THE REFERENCES WERE INTENDED TO BE TO SECTION
19(A)(1) AND SECTION 10(E). ALSO, THE EVIDENCE SHOWS THAT THE REFERENCE
TO A MEETING ON NOVEMBER 11, 1973 MUST HAVE BEEN INTENDED TO BE A
REFERENCE TO A MEETING ON NOVEMBER 14, 1973.
/5/ EXH. R-1; TR. 14.
/6/ TR. 17.
/7/ TR. 17, 19.
/8/ TR. 19.
/9/ AS-3, PART 3.
/10/ AS-5
/11/ TR. 5-6.
/12/ TR. 8-9; EXH. AS-3.
/13/ THE RECORD DOES NOT ESTABLISH THAT IT WAS ATTACHED EVEN TO THE
ORIGINAL OF THE COMPLAINT. TR. 8-9..
/14/ TR. 18; BRIEF, PP. 15-18.
/15/ SEE TR. 23-25.
/16/ SEE PORTSMOUTH NAVAL SHIPYARD, A/SLMR NO. 241, P. 19 OF ALJ
DECISION; SEE ALSO DEPARTMENT OF NAVY, BUREAU OF MEDICINE AND SURGERY,
GREAT LAKES NAVAL HOSPITAL, A/SLMR NO. 289, PP. 2-4, AND PP. 4-7 OF ALJ
DECISION.
5 A/SLMR 556; P. 586; CASE NOS. 71-2989, 71-3008, 71-3136, 71-3144;
SEPTEMBER 16, 1975.
UNITED STATES FOREST SERVICE,
SALMON NATIONAL FOREST,
SALMON, IDAHO
A/SLMR NO. 556
THIS CASE INVOLVED PETITIONS FOR CLARIFICATION OF UNIT (CU) FILED BY
LOCAL 1502, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, AND BY THE
ACTIVITY HEREIN, SEEKING CLARIFICATION WITH RESPECT TO THE SUPERVISORY
STATUS OF VARIOUS CATEGORIES OF EMPLOYEES LOCATED IN AN EXCLUSIVE
BARGAINING UNIT AT THE SALMON NATIONAL FOREST, SALMON, IDAHO. THE
PARTIES ALSO REQUESTED THAT THE ASSISTANT SECRETARY RECONSIDER THE
DECISION IN DEPARTMENT OF INTERIOR, BUREAU OF LAND MANAGEMENT, DISTRICT
OFFICE, LAKEVIEW, OREGON, A/SLMR NO. 212, THAT "SEASONAL SUPERVISORS" BE
EXCLUDED FROM THE UNIT WHILE ACTING IN SUCH CAPACITY. IN THIS REGARD,
THEY CONTENDED THAT SUPERVISORS WHO SUPERVISE "SEASONAL EMPLOYEES"
SHOULD BE IN THE UNIT AT ALL TIMES.
THE ASSISTANT SECRETARY NOTED THAT THE FEDERAL LABOR RELATIONS
COUNCIL (COUNCIL) HAD, IN UNITED STATES DEPARTMENT OF AGRICULTURE,
NORTHERN MARKETING AND NUTRITION RESEARCH DIVISION, PEORIA, ILLINOIS,
FLRC NO. 72A-4, AND OTHER CASES, ARTICULATED REASONS WHY SUPERVISORY
STATUS SHOULD BE DETERMINED ON THE BASIS OF THE AUTHORITY OF THE
INDIVIDUAL, AND WHY SUPERVISORS HAD INTERESTS IN CONFLICT WITH UNIT
EMPLOYEES, REQUIRING THEIR EXCLUSION FROM UNITS. AS "SEASONAL
SUPERVISORS" SPEND A CONSIDERABLE PART OF THE YEAR SUPERVISING EMPLOYEES
WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER, HE REAFFIRMED THAT
"SEASONAL SUPERVISORS" SHOULD BE EXCLUDED FROM THE UNIT WHILE SERVING IN
SUCH CAPACITY AND INCLUDED IN THE UNIT FOR THE PORTION OF THE YEAR WHEN
THEY ARE NOT SUPERVISING SEASONAL EMPLOYEES.
WITH RESPECT TO CERTAIN OTHER NAMED INDIVIDUALS IN CERTAIN JOB
CLASSIFICATIONS COVERED BY THE CU PETITIONS, THE ASSISTANT SECRETARY
NOTED THAT DURING THE COURSE OF THE HEARING THE PARTIES AGREED AS TO
THEIR NONSUPERVISORY STATUS. IN THESE CIRCUMSTANCES, HE CONCLUDED THAT
THE AGREEMENT OF THE PARTIES CONSTITUTED, IN EFFECT, A WITHDRAWAL
REQUEST OF THE PETITIONS INSOFAR AS THEY SOUGHT CLARIFICATION WITH
RESPECT TO THE AGREED UPON EMPLOYEES. IN THE ABSENCE OF ANY EVIDENCE
THAT THE PARTIES AGREEMENT WAS IMPROPER, THE ASSISTANT SECRETARY
APPROVED THE WITHDRAWAL REQUEST. AS TO THE REMAINING DISPUTED
CATEGORIES, THE ASSISTANT SECRETARY MADE FINDINGS WITH RESPECT TO THE
SUPERVISORY STATUS OF THE JOB CLASSIFICATIONS INVOLVED AND ORDERED THAT
THE UNIT BE CLARIFIED CONSISTENT WITH HIS DECISION.
UNITED STATES FOREST SERVICE,
SALMON NATIONAL FOREST,
SALMON, IDAHO
AND
LOCAL 1502, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
UNITED STATES FOREST SERVICE,
SALMON NATIONAL FOREST,
SALMON, IDAHO
AND
LOCAL 1502, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
UNITED STATES FOREST SERVICE,
SALMON NATIONAL FOREST,
SALMON, IDAHO
AND
LOCAL 1502, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
UNITED STATES FOREST SERVICE,
SALMON NATIONAL FOREST,
SALMON, IDAHO
AND
LOCAL 1502, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER
DANIEL P. KRAUS. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE
FREE FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THESE CASES, THE ASSISTANT SECRETARY FINDS:
LOCAL 1502, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, HEREIN CALLED
NFFE, IS THE EXCLUSIVE REPRESENTATIVE OF CERTAIN EMPLOYEES OF THE
ACTIVITY. IN THIS PROCEEDING, INVOLVING PETITIONS FOR CLARIFICATION OF
UNIT (CU), THE PARTIES SEEK TO CLARIFY THE SUPERVISORY STATUS OF CERTAIN
EMPLOYEE CLASSIFICATIONS. MOREOVER, THE PARTIES REQUEST CONSIDERATION
OF WHETHER CERTAIN CLASSIFICATIONS OF EMPLOYEES DESIGNATED AS "SEASONAL
SUPERVISORS" SHOULD BE INCLUDED IN THE UNIT AT ALL TIMES EVEN WHEN
ACTING AS SUCH SUPERVISORS.
THE UNIT REPRESENTED BY THE NFFE, FOR WHICH CLARIFICATION IS SOUGHT
HEREIN, COVERS ALL PERMANENT FULL-TIME AND PERMANENT PART-TIME
NONSUPERVISORY EMPLOYEES IN THE SALMON NATIONAL FOREST. IN THIS REGARD,
THE RECORD REVEALS THAT THE SALMON NATIONAL FOREST HAS APPROXIMATELY 82
EMPLOYEES WHO ARE LOCATED IN SOME 4 RANGER DISTRICTS. THE MISSION OF
THE FOREST SERVICE, OF WHICH THE ACTIVITY IS A PART, IS TO STIMULATE
EFFECTIVE MANAGEMENT OF FORESTED LAND OF STATE AND PRIVATE OWNERSHIP.
IN THE PURSUIT OF THIS MISSION, THE FOREST SERVICE IS INVOLVED IN
MOTIVATING AND CONDUCTING APPLIED RESEARCH IN ALL FIELDS PERTINENT TO
IMPROVING THE MANAGEMENT OF THE PUBLIC AND PRIVATE FOREST AND RANGE
LANDS.
IN CASE NO. 71-2989, THE ACTIVITY-PETITIONER SEEKS CLARIFICATION OF
THE STATUS OF THE DISTRICT CLERK, NORTH FORK RANGER DISTRICT. IN CASE
NO. 71-3008, THE NFFE SEEKS CLARIFICATION OF THE STATUS OF THE FIRE
CONTROL OFFICER AND THE BUDGET AND ACCOUNTING OFFICER, GS-11. /1/ IN
CASE NO. 71-3136, THE NFFE SEEKS CLARIFICATION OF THE STATUS OF THE
FOLLOWING EMPLOYEE CLASSIFICATIONS: SUPERVISORY FORESTRY TECHNICIAN,
FORESTRY TECHNICIAN, SOIL SCIENTIST, ADMINISTRATIVE ASSISTANT,
CLERK-STENOGRAPHER, CIVIL ENGINEER, CIVIL ENGINEER TECHNICIAN, ENGINEER
EQUIPMENT OPERATOR FOREMAN, AUTOMOTIVE AND ENGINEERING EQUIPMENT
MECHANIC SUPERVISOR, RANGE CONSERVATIONIST, FORESTER, AND CLERK TYPIST.
AND, FINALLY, IN CASE NO. 71-3144, THE ACTIVITY-PETITIONER SEEKS
CLARIFICATION OF THE STATUS OF THE FOLLOWING CLASSIFICATIONS: FORESTRY
TECHNICIAN, FORESTER, SUPERVISORY FORESTRY TECHNICIAN, PAYROLL AND
VOUCHER CLERK, /2/ SURVEYING TECHNICIAN, AND CIVIL ENGINEERING
TECHNICIAN. /3/
THE PARTIES STIPULATED THAT TWENTY-ONE OF THE EMPLOYEES INVOLVED IN
THE PETITIONS HEREIN HAD NO PERMANENT EMPLOYEES REPORTING OR ASSIGNED TO
THEM BUT THAT, DURING PARTS OF THE YEAR, THEY SUPERVISED SEASONAL
EMPLOYEES. IN THIS CONNECTION, THE PARTIES INDICATED A DESIRE FOR THE
ASSISTANT SECRETARY TO RECONSIDER AND REVERSE THE DECISION IN DEPARTMENT
OF INTERIOR, BUREAU OF LAND MANAGEMENT, DISTRICT OFFICE, LAKEVIEW,
OREGON, A/SLMR NO. 212, IN WHICH IT WAS HELD THAT EMPLOYEES WHO
SUPERVISE SEASONAL EMPLOYEES SHOULD NOT BE INCLUDED IN THE RECOGNIZED
UNIT DURING SUCH PERIODS, BUT SHOULD BE CONSIDERED TO BE WITHIN THE UNIT
ONLY FOR THE PART OF THE YEAR WHEN THEY ARE NOT SUPERVISING SEASONAL
EMPLOYEES. THE PARTIES IN THE INSTANT CASE CONTEND THAT SEASONAL
SUPERVISORS SHOULD BE CONSIDERED TO BE INCLUDED IN THE UNIT THROUGHOUT
THE ENTIRE YEAR.
THE RECORD INDICATES THAT WHEN ACTING AS "SEASONAL SUPERVISORS" THE
EMPLOYEES IN QUESTION EFFECTIVELY EVALUATE, DIRECT, DISCIPLINE, AND
EFFECTIVELY RECOMMEND OVERTIME WITH RESPECT TO OTHER EMPLOYEES. THE
FEDERAL LABOR RELATIONS COUNCIL (COUNCIL) FOUND IN UNITED STATES
DEPARTMENT OF AGRICULTURE, NORTHERN MARKETING AND NUTRITION RESEARCH
DIVISION, PEORIA, ILLINOIS, FLRC NO. 72A-4, THAT SUPERVISORY STATUS WAS
INTENDED TO BE DETERMINED ON THE BASIS OF THE AUTHORITY VESTED IN THE
INDIVIDUAL AND NOT THE NUMBER OF EMPLOYEES SUPERVISED. THE COUNCIL
STATED THAT IT WAS THE NATURE OF THE INDIVIDUALS' DUTIES AND
RESPONSIBILITIES WHICH WAS THE BASIS FOR DETERMINING SUPERVISORY
RESPONSIBILITIES. IN THIS REGARD, THE COUNCIL CONSIDERED THE STUDY
COMMITTEE REPORT AND RECOMMENDATIONS OF 1969 IN WHICH THE RATIONALE FOR
EXCLUDING SUPERVISORS FROM RECOGNIZED UNITS WAS ARTICULATED. THUS, IT
WAS NOTED THAT A SUPERVISOR STANDS AS A REPRESENTATIVE OF AGENCY
MANAGEMENT AND, AS SUCH, PARTICIPATES AND CONTRIBUTES TO FORMULATION OF
POLICY AND PROCEDURES, EXPRESSES THE AGENCY VIEW IN DAILY COMMUNICATION
WITH EMPLOYEES, AND THAT SUPERVISORS SHOULD BE AND ARE PART OF AGENCY
MANAGEMENT. /4/ AS THE "SEASONAL SUPERVISORS" SPEND A CONSIDERABLE
PORTION OF THE YEAR SUPERVISING EMPLOYEES WITHIN THE MEANING OF SECTION
2(C) OF THE ORDER, IT WOULD, IN MY VIEW, BE INCONSISTENT WITH THE STATED
INTENT OF THE EXECUTIVE ORDER TO PLACE THEM IN A POSITION OF POTENTIAL
CONFLICT OF INTEREST AND RESPONSIBILITY DURING SUCH EXTENDED PERIODS OF
TIME. UNDER THESE CIRCUMSTANCES, I REAFFIRM THE DECISION IN A/SLMR NO.
212 WITH RESPECT TO "SEASONAL SUPERVISORS."
AS THE PARTIES STIPULATED THAT THE "SEASONAL SUPERVISORS" IN THE
INSTANT PROCEEDING HAVE NO PERMANENT EMPLOYEES ASSIGNED TO THEM FOR THE
ENTIRE YEAR, SUCH EMPLOYEES, WHO SPEND A PORTION OF THE WORKING YEAR AS
RANK AND FILE EMPLOYEES AND THE REMAINDER OF THE YEAR AS SUPERVISORS,
SHOULD BE CONSIDERED TO BE INCLUDED IN THE EMPLOYEE BARGAINING UNIT
DURING THE "OUT OF SEASON" PERIOD WHEN THEY ARE PERFORMING RANK AND FILE
DUTIES AND SHOULD BE CONSIDERED OUTSIDE THE UNIT DURING THE TIME THEY
SERVE AS "SEASONAL SUPERVISORS."
THE POSITION OF BUDGET AND ACCOUNTING OFFICER, GS-11, IS LOCATED IN
THE BUDGET AND FINANCE SECTION AND AN EMPLOYEE IN THIS CLASSIFICATION
REPORTS TO THE FOREST ADMINISTRATIVE OFFICER. THE INCUMBENT IS
RESPONSIBLE FOR TWO PERMANENT EMPLOYEES AND ONE PART-TIME EMPLOYEE IN
HIS SECTION, ALL OF WHOM ARE JUNIOR IN GRADE. HIS JOB FUNCTIONS INVOLVE
PROVIDING SPECIALIZED BUDGETING AND ACCOUNTING ADVICE TO THE FOREST
ORGANIZATION AND MANAGEMENT. THE RECORD REVEALS THAT THE BUDGET AND
ACCOUNTING OFFICER HAS PREPARED A CAREER-DEVELOPMENT FORM FOR A
SUBORDINATE SEEKING A HIGHER POSITION, SIGNING IT AS SUPERVISOR.
MOREOVER, HE HAS EFFECTIVELY EVALUATED TWO EMPLOYEES, /5/ HAS THE
AUTHORITY TO RECOMMEND OVERTIME AND HAS MADE A RECOMMENDATION FOR A
PROMOTION WHICH WAS EFFECTIVE. IN ADDITION, HE IS RESPONSIBLE FOR
DIRECTING THE WORK OF THE EMPLOYEES IN HIS SECTION AND FOR MAKING WORK
ASSIGNMENTS.
BECAUSE THE EMPLOYEE IN THIS CLASSIFICATION POSSESSES INDEPENDENT AND
RESPONSIBLE AUTHORITY TO DIRECT OTHER EMPLOYEES, SCHEDULE AND ASSIGN
WORK, AND EFFECTIVELY RECOMMEND PROMOTIONS, I FIND THAT THE BUDGET AND
ACCOUNTING OFFICER, GS-11, IS A SUPERVISOR WITHIN THE MEANING OF THE
ORDER AND, THEREFORE, THIS CLASSIFICATION SHOULD BE EXCLUDED FROM THE
UNIT.
THE POSITION OF ADMINISTRATIVE ASSISTANT, ADMINISTRATIVE SERVICES AND
RESOURCES, GS-9, IS LOCATED IN THE BUSINESS MANAGEMENT ORGANIZATION
UNDER THE GENERAL SUPERVISION OF THE ADMINISTRATIVE OFFICER. THE
INCUMBENT SERVES AS CHIEF OF THE SECTION OF ADMINISTRATIVE SERVICES AND
RESOURCE SERVICES AND IS RESPONSIBLE FOR FIVE EMPLOYEES IN HIS SECTION,
ALL OF WHOM ARE JUNIOR IN GRADE. HIS JOB FUNCTIONS INVOLVE THE
INTERPRETATION AND DETERMINATION OF APPLICABLE LAWS, REGULATIONS,
POLICIES AND THE PROVIDING OF SOLUTIONS FOR A WIDE VARIETY OF PHYSICAL
AND ADMINISTRATIVE PROBLEMS. THE RECORD REVEALS THAT THE INCUMBENT HAS
ASSIGNED WORK TO THE EMPLOYEES IN HIS SECTION, HAS EFFECTIVELY
RECOMMENDED MERIT INCREASES FOR EMPLOYEES, HAS EFFECTIVELY EVALUATED
SUCH EMPLOYEES, AND HAS PREPARED TRAINING PLANS FOR THE EMPLOYEES UNDER
HIS SUPERVISION.
BECAUSE AN EMPLOYEE IN THE CLASSIFICATION OF ADMINISTRATIVE
ASSISTANT, ADMINISTRATIVE SERVICES AND RESOURCES, GS-9, POSSESSES
INDEPENDENT, RESPONSIBLE AUTHORITY TO DIRECT OTHER EMPLOYEES, AND HAS
EFFECTIVELY RECOMMENDED MERIT PAY INCREASES FOR EMPLOYEES, AS WELL AS
EFFECTIVELY EVALUATING SUCH EMPLOYEES, I FIND THAT THE INCUMBENT IS A
SUPERVISOR WITHIN THE MEANING OF THE ORDER AND, THEREFORE, THIS
CLASSIFICATION SHOULD BE EXCLUDED FROM THE UNIT.
THE POSITION OF SUPERVISORY CLERK-STENOGRAPHER, GS-5, IS LOCATED IN
THE ADMINISTRATIVE SERVICES SECTION, BUSINESS MANAGEMENT ORGANIZATION,
AT THE ACTIVITY AND THE INCUMBENT IN THIS POSITION REPORTS TO THE
ADMINISTRATIVE ASSISTANT, GS-9. THE INCUMBENT WORKS WITH THREE
PERMANENT EMPLOYEES AND ONE PART-TIME EMPLOYEE, AND HAS THE
RESPONSIBILITY FOR PERFORMING STENOGRAPHIC AND CLERICAL DUTIES INVOLVING
THE ADMINISTRATION OF THE FOREST. ALTHOUGH THE INCUMBENT HAS INPUT WITH
RESPECT TO HIRING AND WORK EVALUATIONS, AND DISTRIBUTES WORK TO THE
EMPLOYEES UNDER HER, THE RECORD REVEALS THAT ONLY 40 PERCENT OF HER TIME
IS SPENT GIVING DIRECTION TO OTHER EMPLOYEES, WHILE 60 PERCENT OF HER
TIME IS SPENT IN TAKING AND TRANSCRIBING DICTATION FROM NOTES OR FROM
TRANSCRIBING MACHINES. MOREOVER, THE EVIDENCE ESTABLISHES THAT THE WORK
INVOLVED IS SUCH THAT THE EMPLOYEES REPORTING TO HER KNOW ESSENTIALLY
WHAT IS EXPECTED OF THEM AND PERFORM ACCORDINGLY. THE RECORD REVEALS
ALSO THAT SUCH WORK ASSIGNMENTS AS SHE MAKES AND DIRECTION AS SHE GIVES
ARE USUALLY CONFINED TO THE ROUTINE IMPLEMENTATION OF WORKLOAD PRIORITY
REQUIREMENTS WHICH, FOR THE MOST PART, ARE ESTABLISHED BY HIGHER LEVELS
IN THE SECTION.
UNDER THESE CIRCUMSTANCES, AND NOTING THAT THE EMPLOYEE IN THIS
CLASSIFICATION WORKS ALONGSIDE OTHER EMPLOYEES A MAJORITY OF THE TIME,
AND THAT SUCH AUTHORITY AS IS EXERCISED BY AN EMPLOYEE IN THIS
CLASSIFICATION IS ROUTINE IN CHARACTER, DOES NOT REQUIRE THE EXERCISE OF
INDEPENDENT JUDGEMENT, AND IS IN THE NATURE OF A MORE EXPERIENCED
EMPLOYEE GIVING GUIDANCE TO LESSER EXPERIENCED EMPLOYEES, RATHER THAN IN
THE NATURE OF THE PERFORMANCE OF SUPERVISORY FUNCTIONS, I FIND THAT THE
SUPERVISORY CLERK-STENOGRAPHER, GS-5, IS NOT A SUPERVISOR WITHIN THE
MEANING OF SECTION 2(C) OF THE ORDER AND, THEREFORE, THIS CLASSIFICATION
SHOULD BE INCLUDED IN THE UNIT.
THE POSITION OF DISTRICT CLERK, GS-5, IS LOCATED IN THE DISTRICT
RANGER'S OFFICE. THE INCUMBENT IS RESPONSIBLE FOR THE ACCOMPLISHMENT OF
CERTAIN BUSINESS MANAGEMENT ACTIVITIES AND A VARIETY OF THE CLERICAL
DUTIES INVOLVED IN THE GENERAL ADMINISTRATION OF THE DISTRICT. IN THIS
REGARD, SHE SERVES AS CHIEF DISTRICT CLERK AND, WITH TWO FULL-TIME AND
AN OCCASIONAL PART-TIME ADDITIONAL CLERK, CONDUCTS THE BUSINESS
MANAGEMENT PHASE OF THE DISTRICT. THE INCUMBENT WORKS ALONGSIDE THESE
EMPLOYEES UP TO 70 PERCENT OF THE TIME. ALTHOUGH SHE MAY AUDIT THEIR
WORK, THE RECORD REVEALS THAT, FOR THE MOST PART, THESE EMPLOYEES KNOW
THEIR JOBS AND PERFORM WITHOUT ANY DIRECTION FROM HER. MOREOVER, IF ANY
OF THESE EMPLOYEES HAVE A PROBLEM THEY USUALLY GO DIRECTLY TO THE RANGER
IN CHARGE, NOT TO THE INCUMBENT. THE INCUMBENT MAY ROUTINELY APPROVE
ANNUAL LEAVE AND HAS MADE ROUTINE EVALUATIONS OF THE PERFORMANCE OF
EMPLOYEES IN HER SECTION; SHE HAS NEVER PREPARED TRAINING PLANS OR
PERFORMED TRAINING.
BASED ON THE FOREGOING CIRCUMSTANCES, I CONCLUDE THAT THE DISTRICT
CLERK, GS-5, DOES NOT POSSESS SUPERVISORY AUTHORITY. THUS, THE EVIDENCE
ESTABLISHES THAT SUCH AUTHORITY AS SHE EXERCISES WITH RESPECT TO OTHER
EMPLOYEES IS ROUTINE IN NATURE AND DOES NOT REQUIRE THE EXERCISE OF
INDEPENDENT JUDGEMENT. MOREOVER, SUCH DIRECTION AS SHE GIVES OTHER
EMPLOYEES IS THAT OF A MORE EXPERIENCED EMPLOYEE ASSISTING LESS
EXPERIENCED EMPLOYEES. ACCORDINGLY, I FIND THAT AN EMPLOYEE IN THIS
CLASSIFICATION IS NOT A SUPERVISOR WITHIN THE MEANING OF SECTION 2(C) OF
THE ORDER AND, THEREFORE, THIS CLASSIFICATION SHOULD BE INCLUDED IN THE
UNIT.
THIS POSITION IS LOCATED IN THE ENGINEERING DEPARTMENT OF THE
ACTIVITY, WHERE THE INCUMBENT SERVES AS HEAD OF THE CONSTRUCTION AND
MAINTENANCE UNIT, WITH THE RESPONSIBILITY FOR DEVELOPING AND EXECUTING A
VARIETY OF CONSTRUCTION PROJECTS AND THE MAINTENANCE AND PHYSICAL
IMPROVEMENTS ON THE FOREST INVOLVING ROADS, TRAILS, BRIDGES, AND DAMS.
THE CIVIL ENGINEER, GS-11, IS DIRECTLY RESPONSIBLE TO THE SUPERVISORY
CIVIL ENGINEER AND HAS 3 FULL-TIME TECHNICIANS, 1 WAGE GRADE EMPLOYEE
AND 5 "WAE" EMPLOYEES REPORTING TO HIM. HE HAS EFFECTIVE AUTHORITY TO
DISCIPLINE EMPLOYEES, HAS EFFECTIVELY EVALUATED EMPLOYEES, HAS PREPARED
THE PERFORMANCE INFORMATION ROSTER FOR HIS EMPLOYEES AND SCHEDULED AND
ASSIGNED WORK, AND HAS EFFECTIVELY RESOLVED GRIEVANCES.
BECAUSE AN EMPLOYEE IN THIS CLASSIFICATION POSSESSES INDEPENDENT,
RESPONSIBLE AUTHORITY TO DIRECT OTHER EMPLOYEES, TO SCHEDULE AND ASSIGN
WORK AND LEAVE, TO EFFECTIVELY EVALUATE EMPLOYEE WORK PERFORMANCE, AND
HAS EITHER ADJUSTED OR EFFECTIVELY RECOMMENDED THE ADJUSTMENT OF
GRIEVANCES, I FIND THAT THE CIVIL ENGINEER, GS-11, IS A SUPERVISOR
WITHIN THE MEANING OF THE ORDER AND, THEREFORE, THIS CLASSIFICATION
SHOULD BE EXCLUDED FROM THE UNIT.
THE HEAVY MOBILE EQUIPMENT MECHANIC IS DIRECTLY RESPONSIBLE TO THE
SUPERVISORY CIVIL ENGINEER AND HAS ONE LOWER GRADED MECHANIC REPORTING
TO HIM. THE INCUMBENT PERFORMS A FULL RANGE OF JOURNEYMEN-LEVEL
MECHANIC DUTIES, INCLUDING INSPECTION, REPAIR, OVERHAUL, AND TESTING OF
A WIDE VARIETY OF HEAVY MOBILE PORTABLE AND FIXED INDUSTRIAL EQUIPMENT.
ALTHOUGH HE HAS SIGNED AN EVALUATION SLIP FOR THE EMPLOYEE REPORTING TO
HIM AND MAY RECOMMEND OVERTIME, THERE IS NO EVIDENCE HIS RECOMMENDATIONS
IN THIS REGARD ARE EFFECTIVE. MOREOVER, HE HAS NOT BEEN INVOLVED IN THE
SELECTION OF EMPLOYEES, AND THE WORK IS SUCH THAT THE LOWER GRADED
MECHANIC KNOWS WHAT TO DO AND REQUIRES PRACTICALLY NO DIRECTION. THE
RECORD REVEALS THAT SUCH DIRECTION AS MAY BE GIVEN BY THE INCUMBENT TO
THE LOWER GRADE MECHANIC IS IN THE NATURE OF A MORE EXPERIENCED EMPLOYEE
ASSISTING A LESS EXPERIENCED EMPLOYEE AS DISTINGUISHED FROM SUPERVISION
OF THE EMPLOYEE.
BASED ON THE FOREGOING, I FIND THAT THE EMPLOYEE IN THE JOB
CLASSIFICATION OF HEAVY MOBILE EQUIPMENT MECHANIC, WG-11, IS NOT A
SUPERVISOR WITHIN THE MEANING OF THE ORDER AND, THEREFORE, THIS
CLASSIFICATION SHOULD BE INCLUDED IN THE UNIT.
THE INCUMBENT IN THE POSITION OF ENGINEERING EQUIPMENT OPERATOR
FOREMAN, WS-9, SERVES AS FOREMAN OVER FIVE OR MORE ENGINEERING EQUIPMENT
OPERATORS AND OTHERS PERFORMING ROAD AND BRIDGE MAINTENANCE CONSTRUCTION
WORK. HE SERVES UNDER THE GENERAL SUPERVISION OF A CIVIL ENGINEER WITH
WHOM HE PARTICIPATES IN THE PREPARATION OF THE ANNUAL WORK PLAN AND TO
WHOM HE IS RESPONSIBLE. THE RECORD INDICATES THAT HE EFFECTIVELY
EVALUATES ALL FIVE OF HIS EMPLOYEES SIGNING THE EVALUATION FORMS AS
SUPERVISOR, THAT HE HAS THE AUTHORITY TO ASSIGN EMPLOYEES FROM ONE
POSITION TO ANOTHER, THAT HE EFFECTIVELY RECOMMENDS LAY OFFS, AND THAT
HE MAKES ASSIGNMENTS OF WORK TO HIS SUBORDINATES.
BECAUSE THE EMPLOYEE IN THE CLASSIFICATION OF ENGINEERING EQUIPMENT
OPERATOR FOREMAN, WS-9, POSSESSES INDEPENDENT, RESPONSIBLE AUTHORITY TO
DIRECT OTHER EMPLOYEES, SCHEDULE AND ASSIGN WORK AND EFFECTIVELY
RECOMMEND LAY OFFS, I FIND THAT THE ENGINEERING EQUIPMENT OPERATOR
FOREMAN, WS-9, IS A SUPERVISOR WITHIN THE MEANING OF THE ORDER AND,
THEREFORE, THIS CLASSIFICATION SHOULD BE EXCLUDED FROM THE UNIT.
THIS POSITION IS LOCATED IN THE FOREST SUPERVISOR'S OFFICE. THE
INCUMBENT, WHO IS DIRECTLY RESPONSIBLE TO THE FOREST SUPERVISOR, HAS ONE
SUBORDINATE WORKING UNDER HIM AND IS RESPONSIBLE FOR THE MANAGEMENT AND
INVENTORY PROGRAMS OF THE FOREST. HE SERVES AS FOREST SOIL MANAGEMENT
SPECIALIST AND A SOILS ADVISOR TO THE FOREST WATERSHED STAFF AND FOREST
SUPERVISOR STAFF. ALTHOUGH IT IS CONTENDED THAT THE INCUMBENT HAS
EVALUATED HIS SUBORDINATE'S PERFORMANCE, HAS PREPARED PROMOTION ROSTERS
FOR THE INDIVIDUAL, HAS DESIGNATED HIS DAY-TO-DAY ACTIVITIES, AND HAS
APPROVED ANNUAL AND SICK LEAVE, THE EVIDENCE INDICATES THAT HIS SOLE
SUBORDINATE EMPLOYEE WORKS WITHIN WELL-DEVELOPED GUIDELINES AND IS ABLE
TO PERFORM HIS ASSIGNMENTS, FOR THE MOST PART, WITHOUT DIRECTION.
IN THESE CIRCUMSTANCES, AND NOTING THAT THE RECORD REFLECTS THAT THE
DUTIES AND AUTHORITY OF THE SOIL SCIENTIST, GS-11, WITH RESPECT TO HIS
SUBORDINATE ARE ROUTINE IN NATURE AND DO NOT REQUIRE THE USE OF
INDEPENDENT JUDGEMENT AS HIS SUBORDINATE WORKS WITHIN WELL ESTABLISHED
GUIDELINES, I FIND THAT AN EMPLOYEE IN THE CLASSIFICATION OF SOIL
SCIENTIST, GS-11, IS NOT A SUPERVISOR WITHIN THE MEANING OF THE ORDER.
ACCORDINGLY, I FIND THAT THIS CLASSIFICATION SHOULD BE INCLUDED IN THE
UNIT.
THE POSITION OF RANGE CONSERVATIONIST FORESTER, GS-11, IS RESPONSIBLE
TO THE DISTRICT RANGER IN WHOSE OFFICE IT IS LOCATED. THE JOB FUNCTION
OF THE INCUMBENT INVOLVES THE ADMINISTRATION, DEVELOPMENT AND PROTECTION
OF THE NATURAL RESOURCES OF THE DISTRICT. THE INCUMBENT SERVES AS A
STAFF ASSISTANT RESPONSIBLE FOR ANALYZING, PLANNING, DIRECTING,
INSPECTING AND REPORTING ON THE RANGE, RECREATION, LAND USAGE,
WATERSHED, AND WILDLIFE MANAGEMENT PROGRAMS OF THE DISTRICT. THE RECORD
REFLECTS THAT THE INCUMBENT ACTS IN A SUPERVISORY CAPACITY TO ONLY ONE
SEASONAL EMPLOYEE FOR WHOM HE MAY EFFECTIVELY APPROVE LEAVE, EVALUATE
THE EMPLOYEE'S PERFORMANCE, EFFECTIVELY RECOMMEND OVERTIME, AND INVOKE
DISCIPLINE, IF NECESSARY.
BASED ON THE FOREGOING, I CONCLUDE THAT THE RANGE CONSERVATIONIST,
FORESTER, GS-11, DOES NOT HAVE SUPERVISORY RESPONSIBILITIES EXCEPT ON A
SEASONAL BASIS. ACCORDINGLY, AS INDICATED ABOVE, I FIND THAT THE
EMPLOYEE IN THE JOB CLASSIFICATION OF RANGE CONSERVATIONIST, FORESTER,
GS-11, SHOULD BE INCLUDED IN THE EXCLUSIVELY RECOGNIZED UNIT, EXCEPT FOR
SUCH PERIODS AS HE SERVES AS A SEASONAL SUPERVISOR.
THIS POSITION IS LOCATED IN THE FOREST SUPERVISOR'S OFFICE OF THE
ACTIVITY. THE INCUMBENT SERVES AS THE PRINCIPAL ASSISTANT TO THE BRANCH
CHIEF IN FIRE, RECREATION, LANDS AND MINERAL FUNCTIONS, WITH PRIMARY
RESPONSIBILITY FOR ALL FIRE MANAGEMENT, AIR OPERATIONS AND
COMMUNICATIONS. HE HAS ONE SEASONAL EMPLOYEE REPORTING TO HIM WHOSE
HIRING HE EFFECTIVELY RECOMMENDED. HE HAS EVALUATED THE SEASONAL
EMPLOYEE, HAS PROVIDED TRAINING FOR THE EMPLOYEE AND EFFECTIVELY DIRECTS
THE EMPLOYEE'S WORK AND RECOMMENDS OVERTIME.
BASED ON THE FOREGOING, I CONCLUDE THAT THE FORESTRY TECHNICIAN,
GS-11, DOES NOT HAVE SUPERVISORY RESPONSIBILITIES EXCEPT ON A SEASONAL
BASIS. ACCORDINGLY, FOR THE REASONS NOTED ABOVE, I FIND THAT THE
EMPLOYEE IN THIS CLASSIFICATION SHOULD BE INCLUDED IN THE EXCLUSIVELY
RECOGNIZED UNIT, EXCEPT FOR SUCH PERIODS AS HE SERVES AS A SEASONAL
SUPERVISOR.
THE POSITION OF FORESTER, GS-9, IS LOCATED IN THE TIMBER MANAGEMENT
BRANCH OF THE ACTIVITY. THE INCUMBENT /6/ REPORTS TO THE DISTRICT
TIMBER MANAGEMENT ASSISTANT AND HAS UNDER HIM ONE PERMANENT EMPLOYEE,
APPROXIMATELY FIVE SEASONAL EMPLOYEES FOR A SEVEN MONTH PERIOD EACH
YEAR, AND FOUR OTHER SEASONAL EMPLOYEES FOR A THREE MONTH PERIOD. THE
RECORD REVEALS THAT THE INCUMBENT IS RESPONSIBLE PRIMARILY FOR SALES
PREPARATION WITH SECONDARY DUTIES INCLUDING, AMONG OTHER THINGS, TIMBER
SALES ADMINISTRATION, AND TIMBER IMPROVEMENT AND EROSION CONTROL. THE
EVIDENCE ESTABLISHES THAT THE INCUMBENT HAS INTERVIEWED EMPLOYEE
APPLICANTS AND HIS RECOMMENDATIONS FOR HIRING HAVE BEEN EFFECTIVE. HE
ALSO HAS RECOMMENDED THE TRANSFER AND REASSIGNMENT OF EMPLOYEES WHICH
RECOMMENDATIONS HAVE BEEN CARRIED OUT, HAS EVALUATED HIS SUBORDINATES,
HAS EFFECTIVELY RECOMMENDED OVERTIME AND HAS RESPONSIBLY DIRECTED THE
WORK OF HIS SUBORDINATES.
BECAUSE AN EMPLOYEE IN THIS CLASSIFICATION POSSESSES AUTHORITY TO
EFFECTIVELY DIRECT OTHER EMPLOYEES AND TO EFFECTIVELY RECOMMEND HIRING
AND TRANSFERS, I FIND THAT THE FORESTER, GS-9, IS A SUPERVISOR WITHIN
THE MEANING OF THE ORDER AND, THEREFORE, THIS CLASSIFICATION SHOULD BE
EXCLUDED FROM THE UNIT.
THE POSITION OF SUPERVISORY FOREST TECHNICIAN IS LOCATED IN THE
OFFICE OF THE TIMBER MANAGEMENT ASSISTANT TO WHOM HE REPORTS. THE
INCUMBENT /7/ SUPERVISES, AT VARIOUS TIMES DURING THE COURSE OF A YEAR,
UP TO 13 EMPLOYEES IN SEVERAL WORK CREWS. HE IS RESPONSIBLE FOR
PERFORMING A VARIETY OF DUTIES INCLUDING SERVING AS PROJECT MANAGER FOR
DISTRICT PROJECTS INVOLVING TIMBER MANAGEMENT, FOREST ROADS AND TRAILS
AND ADMINISTRATIVE IMPROVEMENTS. HE ALSO HAS THE AUTHORITY TO DIRECT
THE PERFORMANCE OF MAINTENANCE ON THE ROADS AND VARIOUS OTHER PROJECTS.
THE RECORD REFLECTS THAT THE SUPERVISORY FOREST TECHNICIAN, GS-7, HAS
THE AUTHORITY TO DIRECT THE DAY-TO-DAY ACTIVITIES OF HIS EMPLOYEES,
HELPS WITH DEVELOPING PLANS FOR HIS CREWS, EFFECTIVELY EVALUATES
EMPLOYEE PERFORMANCE, CAN EFFECTIVELY RECOMMEND CHANGES IN CREWS AND
OVERTIME FOR HIS CREWS, AND THAT HE HAS RECOMMENDED DISCIPLINE FOR
SUBORDINATES AND HIS RECOMMENDATIONS HAVE BEEN EFFECTIVE.
BECAUSE AN EMPLOYEE IN THE CLASSIFICATION OF SUPERVISORY FOREST
TECHNICIAN, GS-7, POSSESSES INDEPENDENT AND RESPONSIBLE AUTHORITY TO
DIRECT AND EVALUATE OTHER EMPLOYEES, TO EFFECTIVELY SCHEDULE AND ASSIGN
WORK AND OVERTIME, AND TO EFFECTIVELY RECOMMEND DISCIPLINE, I FIND THAT
THE SUPERVISORY FOREST TECHNICIAN, GS-7, IS A SUPERVISOR WITHIN THE
MEANING OF SECTION 2(C) OF THE ORDER AND, THEREFORE, THIS CLASSIFICATION
SHOULD BE EXCLUDED FROM THE UNIT.
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN,
LOCATED AT THE SALMON NATIONAL FOREST, SALMON, IDAHO, IN WHICH EXCLUSIVE
RECOGNITION WAS GRANTED ON JULY 31, 1969, TO LOCAL 1502, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, BE, AND HEREBY IS, CLARIFIED BY
INCLUDING IN THE SAID UNIT THOSE EMPLOYEE CLASSIFICATIONS SET FORTH IN
GROUP A, BY EXCLUDING FROM SAID UNIT THOSE EMPLOYEE CLASSIFICATIONS SET
FORTH IN GROUP B, AND BY EXCLUDING FROM SAID UNIT THOSE EMPLOYEES IN
CLASSIFICATIONS SET FORTH IN GROUP C ONLY DURING THE PERIOD THEY ARE
SERVING AS SEASONAL SUPERVISORS.
SUPERVISORY CLERK-STENOGRAPHER, GS-5
DISTRICT CLERK, GS-5
HEAVY MOBILE EQUIPMENT MECHANIC, WG-11
SOIL SCIENTIST, GS-11
BUDGET AND ACCOUNTING OFFICER, GS-11
ADMINISTRATIVE ASSISTANT, ADMINISTRATIVE SERVICES AND RESOURCES, GS-9
ENGINEERING EQUIPMENT OPERATOR FOREMAN, WS-9
FORESTER, GS-9
SUPERVISORY FOREST TECHNICIAN, GS-7
CIVIL ENGINEER, GS-11
RANGE CONSERVATIONIST, FORESTER, GS-11
FORESTRY TECHNICIAN, GS-11
DATED, WASHINGTON, D.C.
SEPTEMBER 16, 1975
/1/ THE RECORD INDICATES THAT AT THE TIME OF THE HEARING IN THIS
MATTER THE POSITION OF THE FIRE CONTROL OFFICER, WHICH WOULD BE
CLASSIFIED AS A SUPERVISORY FORESTRY TECHNICIAN, GS-10, WAS NOT FILLED.
ACCORDINGLY, I MAKE NO FINDING AS TO THE SUPERVISORY STATUS OF AN
EMPLOYEE IN THIS CLASSIFICATION.
/2/ THE RECORD REVEALS THAT HERBERT L. GODFREY, FORMERLY THE PAYROLL
AND VOUCHER CLERK, GS-6, WHO REPORTED TO THE BUDGET AND ACCOUNTING
OFFICER, GS-11, HAS RECENTLY BEEN APPOINTED TO A NEWLY CREATED POSITION,
BUDGET AND ACCOUNTING TECHNICIAN, GS-6, REPORTING TO THE SAME
SUPERVISOR, AND THAT, ALTHOUGH GODFREY EXERCISED NO SUPERVISORY
AUTHORITY IN HIS PRIOR POSITION, HE ANTICIPATED THAT PURSUANT TO HIS NEW
JOB DESCRIPTION HE WOULD HAVE SUPERVISORY RESPONSIBILITY. UNDER THESE
SPECULATIVE CIRCUMSTANCES, I MAKE NO FINDING AS TO THE SUPERVISORY
STATUS OF THE BUDGET AND ACCOUNTING TECHNICIAN, GS-6.
/3/ THE PARTIES STIPULATED THAT CERTAIN NAMED INDIVIDUALS IN VARIOUS
JOB CLASSIFICATIONS INVOLVED IN CASE NO. 71-3136 AND CERTAIN NAMED
INDIVIDUALS IN VARIOUS JOB CLASSIFICATIONS INVOLVED IN CASE NO. 71-3144
POSSESSED NO SUPERVISORY AUTHORITY AND, THEREFORE, WERE TO BE CONSIDERED
INCLUDED IN THE EXCLUSIVELY RECOGNIZED UNIT. THERE IS NO EVIDENCE TO
INDICATE THAT THE PARTIES' AGREEMENT WAS IMPROPER. UNDER THESE
CIRCUMSTANCES, I VIEW THE AGREEMENT OF THE PARTIES AS A WITHDRAWAL OF
THE REQUEST FOR CLARIFICATION IN THIS REGARD. ACCORDINGLY, I APPROVE
THE WITHDRAWAL REQUEST AND, THEREFORE, FIND IT UNNECESSARY TO MAKE A
DETERMINATION AS TO THESE PARTICULAR EMPLOYEES AND CLASSIFICATIONS IN
CASE NOS. 71-3136 AND 71-3144. CF. NEW JERSEY DEPARTMENT OF DEFENSE,
A/SLMR NO. 121. THE PARTIES ALSO STIPULATED IN CASE NOS. 71-3136 AND
71-3144, RESPECTIVELY, THAT GREG MUNTHER AND OLIVER WILLIAMS ARE NO
LONGER EMPLOYEES OF THE ACTIVITY AND, ACCORDINGLY, I SHALL MAKE NO
FINDING AS TO THEIR SUPERVISORY STATUS. THE PARTIES FURTHER STIPULATED
IN CASE NO. 71-3144 THAT LANNIS ALLMARAS, ASSISTANT FIRE CONTROL
OFFICER, SHOULD BE ADDED TO THE LIST OF EMPLOYEES WHOSE SUPERVISORY
STATUS SHOULD BE CONSIDERED AS HIS NAME HAD INADVERTENTLY BEEN OMITTED
FROM THE PETITION. HOWEVER, AS THERE WAS INSUFFICIENT EVIDENCE TO
DETERMINE THE RESPONSIBILITIES OF THE ASSISTANT FIRE CONTROL OFFICER, I
SHALL MAKE NO FINDING AS TO THE SUPERVISORY STATUS OF LANNIS ALLMARAS.
/4/ SEE ALSO DEPARTMENT OF THE ARMY, UNITED STATES ARMY BASE COMMAND,
OKINAWA, FLRC NO. 73A-63; DEPARTMENT OF THE AIR FORCE, MCCONNELL AIR
FORCE BASE, KANSAS, FLRC NO. 72A-15; AND NEW JERSEY DEPARTMENT OF
DEFENSE, FLRC NO. 72A-2.
/5/ IN THIS REGARD, IT WAS NOTED THAT EXECUTIVE ORDER 11838 AMENDED
EXECUTIVE ORDER 11491 TO ELIMINATE PERFORMANCE EVALUATION AS A SOLE
CRITERION FOR SUPERVISORY STATUS WHERE THE EMPLOYEE PERFORMS NO OTHER
SUPERVISORY FUNCTIONS. HOWEVER, SUCH EVALUATIONS MAY BE CONSIDERED IN
CONJUNCTION WITH OTHER AUTHORITY VESTED IN AN INDIVIDUAL IN DETERMINING
AN EMPLOYEE'S SUPERVISORY STATUS. SEE REPORT AND RECOMMENDATIONS OF THE
FEDERAL LABOR RELATIONS COUNCIL (JANUARY 1975).
/6/ THE PARTIES STIPULATED THAT THE JOB FUNCTIONS OF THIS
CLASSIFICATION ARE POSSESSED ALSO BY ANOTHER EMPLOYEE OF THE ACTIVITY.
/7/ THE PARTIES STIPULATED THAT THE JOB FUNCTIONS OF THIS
CLASSIFICATION ARE POSSESSED ALSO BY ANOTHER EMPLOYEE OF THE ACTIVITY.
5 A/SLMR 555; P. 580; CASE NO. 22-5666(CA); AUGUST 29, 1975.
DEPARTMENT OF AGRICULTURE AND
OFFICE OF INVESTIGATION
A/SLMR NO. 555
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1375 (COMPLAINANT),
ALLEGING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE
ORDER BY FAILING TO CONSULT WITH THE COMPLAINANT PRIOR TO ITS ISSUANCE
OF A NUMBER OF DIRECTIVES AFFECTING BOTH PERSONNEL PRACTICES AND WORKING
CONDITIONS.
THE ASSISTANT SECRETARY ADOPTED THE ADMINISTRATIVE LAW JUDGE'S
FINDING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) BY
CHANGING PROMOTION AND APPOINTMENT PRACTICES WITHOUT FIRST MEETING AND
CONFERRING WITH THE COMPLAINANT.
THE RESPONDENT'S EXCEPTIONS, WHICH WERE LIMITED TO THE ADMINISTRATIVE
LAW JUDGE'S RECOMMENDED NOTICE TO EMPLOYEES TO BE POSTED BY THE
RESPONDENT AS PART OF THE REMEDIAL ORDER, ARGUED AGAINST INCLUSION IN
THE NOTICE OF ANY REFERENCE TO THE COMPLAINANT AS THE EXCLUSIVE
REPRESENTATIVE OF THE RESPONDENT'S EMPLOYEES BECAUSE THE ACTING
SECRETARY OF AGRICULTURE ALLEGEDLY HAD EXEMPTED THE EMPLOYEES IN THE
UNIT INVOLVED FROM COVERAGE UNDER THE ORDER UNDER THE PROVISIONS OF
SECTION 3(B)(4) OF THE ORDER.
HAVING BEEN ADVISED ADMINISTRATIVELY IN ANOTHER UNFAIR LABOR PRACTICE
CASE (CASE NO. 22-5821(CA)) THAT ACTING SECRETARY OF AGRICULTURE
CAMPBELL HAD, IN FACT, MADE THE 3(B)(4) DETERMINATION ON JANUARY 2,
1975, AND HAVING CONCLUDED ON APPEAL THAT THE ISSUANCE OF A NOTICE OF
HEARING IN CASE NO. 22-5821(CA) WAS WARRANTED IN ORDER TO ASCERTAIN
WHETHER THE ACTING SECRETARY'S ACTION WAS ARBITRARY OR CAPRICIOUS, THE
ASSISTANT SECRETARY FOUND THAT THE ISSUANCE OF A BARGAINING ORDER IN
THIS MATTER RUNNING TO THE COMPLAINANT WOULD BE INAPPROPRIATE UNTIL SUCH
TIME AS THE QUESTION WHETHER THE COMPLAINANT CURRENTLY IS THE EXCLUSIVE
REPRESENTATIVE OF THE EMPLOYEES INVOLVED IS RESOLVED.
DEPARTMENT OF AGRICULTURE AND
OFFICE OF INVESTIGATION
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1375
ON MAY 23, 1975, ADMINISTRATIVE LAW JUDGE BURTON S. STERNBURG ISSUED
HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES AND
RECOMMENDING THAT IT TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN THE
ATTACHED ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATION.
THEREAFTER, THE RESPONDENT AND THE COMPLAINANT FILED EXCEPTIONS WITH
RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATION.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
RESPONDENT'S AND THE COMPLAINANT'S EXCEPTIONS, I HEREBY ADOPT THE
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW
JUDGE TO THE EXTENT CONSISTENT HEREWITH. /1/
THE RESPONDENT'S EXCEPTIONS, WHICH ARE LIMITED TO THE ADMINISTRATIVE
LAW JUDGE'S RECOMMENDED NOTICE TO EMPLOYEES TO BE POSTED BY THE
RESPONDENT AS PART OF THE REMEDIAL ORDER, ARGUE AGAINST THE INCLUSION IN
THE NOTICE OF ANY REFERENCE TO THE COMPLAINANT HEREIN AS THE EXCLUSIVE
REPRESENTATIVE THE RESPONDENT'S EMPLOYEES. THUS, THE RESPONDENT WOULD
HAVE SUCH NOTICE MAKE REFERENCE ONLY TO "ANY EXCLUSIVE REPRESENTATIVE OF
OUR INVESTIGATIVE EMPLOYEES, THAT IN THE FUTURE THERE (SIC) MAY BE
PROPERLY AND DULY DESIGNATED TO SO REPRESENT SAID EMPLOYEES." THE
RESPONDENT'S CONTENTION IN THIS REGARD IS BASED ON THE ALLEGED
DETERMINATION BY THE ACTING SECRETARY OF AGRICULTURE ON JANUARY 2, 1975,
EXEMPTING THE EMPLOYEES IN THE UNIT INVOLVED FROM COVERAGE BY THE ORDER
UNDER THE PROVISIONS OF SECTION 3(B)(4) OF THE ORDER. /2/
WITH RESPECT TO THE RESPONDENT'S CONTENTION, I HAVE BEEN ADVISED
ADMINISTRATIVELY IN CASE NO. 22-5821(CA) THAT ON JANUARY 2, 1975, ACTING
SECRETARY OF AGRICULTURE CAMPBELL, IN A LETTER TO THE NATIONAL PRESIDENT
AND THE GENERAL COUNSEL OF THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
STATED THAT HE HAD DETERMINED THAT THE DEPARTMENT'S OFFICE OF
INVESTIGATION AND OFFICE OF AUDIT FELL WITHIN THE MEANING OF SECTION
3(B)(4) OF THE ORDER AS, IN HIS JUDGMENT, THE EXECUTIVE ORDER CANNOT BE
APPLIED TO THESE OFFICES IN A MANNER CONSISTENT WITH THE INTERNAL
SECURITY OF THE DEPARTMENT OF AGRICULTURE. NOTING THE FEDERAL LABOR
RELATIONS COUNCIL'S DECISION ON APPEAL IN AUDIT DIVISION (CODE DU),
NATIONAL AERONAUTICS AND SPACE AGENCY, FLRC NO. 70A-7, I HAVE CONCLUDED
ON APPEAL THAT THE ISSUANCE OF A NOTICE OF HEARING IN CASE NO.
22-5821(CA) IS WARRANTED IN ORDER TO ASCERTAIN WHETHER THE ACTING
SECRETARY'S ACTION, DESCRIBED ABOVE, WAS ARBITRARY OR CAPRICIOUS. UNDER
THESE CIRCUMSTANCES, I FIND THAT THE ISSUANCE OF A BARGAINING ORDER IN
THIS MATTER RUNNING TO THE COMPLAINANT WOULD BE INAPPROPRIATE AT THIS
TIME AS THERE IS A QUESTION WHETHER THE COMPLAINANT CURRENTLY IS THE
EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES INVOLVED HEREIN. THUS, WHILE
I AGREE WITH THE ADMINISTRATIVE LAW JUDGE'S CONCLUSIONS AS TO THE MERITS
OF THIS CASE WHICH INVOLVED IMPROPER CONDUCT BY THE RESPONDENT OCCURRING
PRIOR TO JANUARY 2, 1975, AND NOTE THAT THE RESPONDENT HAS NOT EXCEPTED
TO SUCH CONCLUSIONS, IN VIEW OF THE ABOVE NOTED SUBSEQUENT EVENTS, I
FIND THAT THE REMEDIAL ORDER HEREIN MUST BE TAILORED TO THE CURRENT
CIRCUMSTANCES.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE DEPARTMENT OF
AGRICULTURE AND OFFICE OF INVESTIGATION, WASHINGTON, D.C., SHALL:
1. CEASE AND DESIST FROM:
(A) IMPLEMENTING ANY CHANGES UNILATERALLY IN THE PROMOTION OR
APPOINTMENT PRACTICES AS SET FORTH IN THE MEMORANDA ISSUED BY THE
DIRECTOR, OFFICE OF INVESTIGATION, WITHOUT FIRST AFFORDING ANY EXCLUSIVE
REPRESENTATIVE OF THE INVESTIGATIVE EMPLOYEES THE OPPORTUNITY TO MEET
AND CONFER ON SUCH CHANGES.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED THEM BY THE
EXECUTIVE ORDER.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) UPON A FINDING THAT THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1375, IS THE CURRENT EXCLUSIVE REPRESENTATIVE OF THE INVESTIGATIVE
EMPLOYEES, WE WILL REESTABLISH ALL PROMOTION AND APPOINTMENT PRACTICES
IN EFFECT PRIOR TO JUNE 10, 1974.
(B) UPON A FINDING THAT THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1375, IS THE CURRENT EXCLUSIVE REPRESENTATIVE OF THE INVESTIGATIVE
EMPLOYEES, WE WILL, UPON REQUEST, MEET AND CONFER WITH THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1375, WITH RESPECT TO ANY
PROPOSED CHANGES IN THE PROMOTION OR APPOINTMENT PRACTICES.
(C) POST AT ITS REGIONAL FACILITIES THROUGHOUT THE UNITED STATES
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED
BY THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS.
UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE DIRECTOR OF THE
OFFICE OF INVESTIGATION 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 DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE
THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
(D) PURSUANT TO SECTION 203.27 OF THE REGULATIONS NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
AUGUST 29, 1975
/1/ IN AGREEMENT WITH THE COMPLAINANT'S CONTENTION CONTAINED IN ITS
EXCEPTIONS HEREIN, I FIND THAT THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED REMEDIAL ORDER DOES NOT PROVIDE AN APPROPRIATE REMEDY FOR
THE IMPROPER ACTIONS OF THE RESPONDENT IN UNILATERALLY CHANGING
ESTABLISHED PRACTICES IN THE AREA OF PROMOTIONS AND APPOINTMENTS WHICH
THE ADMINISTRATIVE LAW JUDGE FOUND, AND IN WHICH FINDINGS I CONCUR,
CONSTITUTED VIOLATIONS OF SECTION 19(A)(1) AND (6) OF THE ORDER.
ACCORDINGLY, I HAVE MODIFIED HIS RECOMMENDED ORDER, AS SET FORTH BELOW.
/2/ SECTION 3(B)(4) OF THE ORDER PROVIDES:
(B) THIS ORDER (EXCEPT SECTION 22) DOES NOT APPLY TO-- (4) ANY
OFFICE, BUREAU OR ENTITY
WITHIN AN AGENCY WHICH HAS AS A PRIMARY FUNCTION INVESTIGATION OR
AUDIT OF THE CONDUCT OR WORK
OF OFFICIALS OR EMPLOYEES OF THE AGENCY FOR THE PURPOSE OF ENSURING
HONESTY AND INTEGRITY IN
THE DISCHARGE OF THEIR OFFICIAL DUTIES, WHEN THE HEAD OF THE AGENCY
DETERMINES, IN HIS SOLE
JUDGMENT, THAT THE ORDER CANNOT BE APPLIED IN A MANNER CONSISTENT
WITH THE INTERNAL SECURITY
OF THE AGENCY.
WE WILL NOT IMPLEMENT UNILATERALLY ANY CHANGES IN THE PROMOTION OR
APPOINTMENT PRACTICES AS SET FORTH IN THE MEMORANDA ISSUED BY THE
DIRECTOR, OFFICE OF INVESTIGATION, WITHOUT AFFORDING ANY EXCLUSIVE
REPRESENTATIVE OF OUR INVESTIGATIVE EMPLOYEES THE OPPORTUNITY TO MEET
AND CONFER ON SUCH CHANGES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED THEM BY THE
EXECUTIVE ORDER.
WE WILL, UPON REQUEST, MEET AND CONFER WITH ANY LABOR ORGANIZATION
DETERMINED TO BE THE EXCLUSIVE REPRESENTATIVE OF OUR INVESTIGATIVE
EMPLOYEES WITH RESPECT TO ANY PROPOSED CHANGES IN THE PROMOTION OR
APPOINTMENT PRACTICES.
DATED . . . BY . . .
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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR, WHOSE ADDRESS IS: 14120 GATEWAY BUILDING, 3535 MARKET STREET,
PHILADELPHIA, PENNSYLVANIA 19104.
IN THE MATTER OF
DEPARTMENT OF AGRICULTURE AND
OFFICE OF INVESTIGATION
AND
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1375
MR. E. JOSEPH TACCINO
CHIEF, EMPLOYEE RELATIONS BRANCH,
PERSONNEL OPERATIONS DIVISION, UNITED
STATES DEPARTMENT OF AGRICULTURE
IRVING GELLER, ESQUIRE
GENERAL COUNSEL, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
1737 H STREET, N.W.
WASHINGTON, DC
BEFORE: BURTON S. STERNBURG
PURSUANT TO A COMPLAINT FILED ON DECEMBER 5, 1974, UNDER EXECUTIVE
ORDER 11491, AS AMENDED, BY LOCAL 1375, NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, HEREINAFTER CALLED THE UNION OR COMPLAINANT, AGAINST THE
DEPARTMENT OF AGRICULTURE AND THE OFFICE OF INVESTIGATION, HEREINAFTER
CALLED THE AGENCY OR RESPONDENT, A NOTICE OF HEARING ON COMPLAINT WAS
ISSUED BY THE ACTING REGIONAL DIRECTOR FOR THE PHILADELPHIA,
PENNSYLVANIA REGION ON JANUARY 29, 1975.
THE COMPLAINT ALLEGES, IN SUBSTANCE, THAT RESPONDENT VIOLATED
SECTIONS 19(A)(1), (2), (5) OF THE EXECUTIVE ORDER BY VIRTUE OF ITS
ACTIONS IN ISSUING A NUMBER OF DIRECTIVES AFFECTING BOTH PERSONNEL AND
WORKING CONDITIONS WITHOUT FIRST CONSULTING WITH THE UNION WHICH IS THE
RECOGNIZED REPRESENTATIVE OF THE AGENCY'S EMPLOYEES. /1/
A HEARING WAS HELD IN THE CAPTIONED MATTER ON APRIL 1, 1975 IN
WASHINGTON, D.C. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES INVOLVED HEREIN.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATIONS:
THE UNION HAS BEEN THE RECOGNIZED EXCLUSIVE REPRESENTATIVE OF THE
INVESTIGATORS AND AUDITORS COMPRISING THE OFFICE OF THE INSPECTOR
GENERAL (OIG) FOR MANY YEARS. A COLLECTIVE BARGAINING AGREEMENT BETWEEN
THE UNION AND THE RESPONDENT WAS EXECUTED ON APRIL 10, 1968, EFFECTIVE
FOR TWO YEARS AND YEAR TO YEAR THEREAFTER, ABSENT 90 DAYS ADVANCE NOTICE
TO TERMINATE BY EITHER PARTY. /2/
PRIOR TO NOVEMBER 1973, THE OFFICE OF INSPECTOR GENERAL HANDLED THE
INVESTIGATIVE AND AUDIT FUNCTIONS OF THE DEPARTMENT OF AGRICULTURE. IN
NOVEMBER 1973, THE OFFICE OF INSPECTOR GENERAL WAS ABOLISHED AND THE
FUNCTIONS PREVIOUSLY HOUSED THEREIN, I.E. AUDIT AND INVESTIGATION, WERE
DIVIDED INTO TWO NEWLY ESTABLISHED SEPARATE OFFICES, OFFICE OF AUDIT AND
OFFICE OF INVESTIGATION. UPON THE ESTABLISHMENT OF THE TWO NEW OFFICES,
MOST OF THE EXISTING SUPERVISORY PERSONNEL WERE ASSIGNED TO THE OFFICE
OF AUDIT. CONSEQUENTLY, THE OFFICE OF INVESTIGATION, WHICH WAS COMPOSED
OF SOME SIX OR SEVEN REGIONS THROUGHOUT THE UNITED STATES, WAS FORCED TO
APPOINT A NUMBER OF ACTING REGIONAL DIRECTORS, WHO IN SOME CASES, HELD
G. S. GRADES LOWER THAN THOSE OF SOME OF THE EMPLOYEES WORKING UNDER
THEM IN THE RESPECTIVE REGIONS.
ON OR ABOUT APRIL 28, 1974, JOHN V. GRAZIANO WAS APPOINTED TO THE
POSITION OF DIRECTOR, OFFICE OF INVESTIGATION AND MADE RESPONSIBLE FOR
THE COMPLETE OPERATION OF SUCH OFFICE. MR. GRAZIANO, IN ACCORDANCE WITH
PRIOR ARRANGEMENTS, MET WITH REPRESENTATIVES OF THE UNION ON JUNE 10,
1974, FOR PURPOSES OF GETTING ACQUAINTED AND DISCUSSING PENDING PROBLEMS
AND UNANSWERED QUESTIONS WITH RESPECT TO THE OPERATION OF THE NEW OFFICE
OF INVESTIGATION. WHILE SUCH ITEMS AS PROMOTIONS AND DRESS WERE
GENERALLY AND/OR INFORMALLY RAISED DURING THE JUNE 10TH MEETING, NO
SPECIFIC PROPOSED CHANGES WERE PRESENTED BY MR. GRAZIANO TO THE UNION
REPRESENTATIVES FOR CONSIDERATION.
BEGINNING ON JUNE 10, 1974 AND CONTINUING THROUGH SEPTEMBER 12, 1974,
MR. GRAZIANO, THROUGH THE MEDIUM OF MEMORANDA TO THE VARIOUS ACTING
REGIONAL DIRECTORS OR ASSISTANT REGIONAL DIRECTORS, EFFECTED VARIOUS
CHANGES IN ESTABLISHED PRACTICE IN THE AREA OF PROMOTIONS AND
APPOINTMENTS. /3/ THUS GS 12 POSITION VACANCIES WHICH HAD IN PRACTICE
NORMALLY BEEN PUBLICIZED ONLY WITHIN THE REGIONAL AREA WERE TO BE
PUBLICIZED NATIONWIDE. /4/ ADDITIONALLY, REGIONAL EVALUATION PANELS
WERE ABOLISHED AND THE SELECTION OF INDIVIDUALS IN THE GS 12 POSITIONS
AND BELOW (OTHER THAN CLERICALS) WAS LEFT SOLELY TO THE DIRECTOR, MR.
GRAZIANO, RATHER THAN THE RESPECTIVE REGIONAL DIRECTORS. ADDITIONALLY
THE NATIONWIDE EVALUATION PANEL FOR GS 13 POSITIONS WAS ALSO ABOLISHED
AND THE SELECTION FOR SUCH POSITIONS WAS AGAIN VESTED SOLELY IN MR.
GRAZIANO. LASTLY, WITH RESPECT TO PROMOTIONS, THE ELEMENT OF MOBILITY
WAS MADE AN IMPORTANT ELEMENT IN THE SELECTION FOR GS 12 AND 13
POSITIONS AND ELIGIBLE EMPLOYEES WERE, CONTRARY TO PRIOR PRACTICE,
REQUIRED TO MAKE A POSITIVE BID FOR THE VACANCIES.
OTHER MEMORANDA DURING THE PERIOD JUNE 10-- SEPTEMBER 12, 1974, DEALT
WITH THE CREATION OF A "SPECIAL INVESTIGATIONS UNIT" AND "ACCEPTABLE
MODES OF DRESS AND APPEARANCE". IN THIS LATTER CONTEXT, ALTHOUGH NO
SPECIFIC MODE OF DRESS WAS PRESCRIBED, MR. GRAZIANO CAUTIONED AGAINST
"OUTLANDISH, EXTREME CLOTHES" WHICH MIGHT "PRODUCE AN IMAGE AND DEMEANOR
THAT ARE OFFENSIVE TO THE MAJORITY OF THE PERSONS WITH WHOM WE DEAL".
SECTION 11(A) OF THE EXECUTIVE ORDER IMPOSES UPON MANAGEMENT THE
OBLIGATION TO MEET AND CONFER IN GOOD FAITH WITH RESPECT TO PERSONNEL
POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS.
SUBJECT TO THE RIGHTS RETAINED BY MANAGEMENT BY VIRTUE OF SECTION 12(B)
OF THE ORDER, FAILURE TO CONSULT ON CHANGES AFFECTING WORKING CONDITIONS
IS VIOLATIVE OF SECTION 19(A)(6). NATIONAL LABOR RELATIONS BOARD,
A/SLMR NO. 246. ADDITIONALLY, WITH RESPECT TO THE RIGHTS RETAINED BY
MANAGEMENT UNDER SECTION 12(B), FAILURE TO CONSULT AS TO THE IMPACT OF
CHANGES MADE IN THE AREA OF MANAGEMENT PREROGATIVE IS ALSO VIOLATIVE OF
SECTION 19(A)(6). ARMY AND AIR FORCE EXCHANGE SERVICE, PACIFIC EXCHANGE
SYSTEM, HAWAII REGIONAL EXCHANGE, A/SLMR NO. 451; FEDERAL RAILROAD
ADMINISTRATION, A/SLMR NO. 418.
IN THE INSTANT CASE, IT IS CLEAR THAT THE RESPONDENT EFFECTED A
NUMBER OF CHANGES IN CURRENT PROMOTION AND APPOINTMENT PRACTICES BY
VIRTUE OF ITS MEMORANDA DURING THE PERIOD JUNE 10-- SEPTEMBER 12, 1974.
THE GENERAL DISCUSSION OF POSSIBLE IMPENDING CHANGES IN THE PROMOTION
PLAN DURING THE JUNE 10TH "TET ACQUAINTED" MEETING FALLS SHORT OF THE
GOOD FAITH CONSULTATION REQUIREMENT SET FORTH IN SECTION 11(A) OF THE
EXECUTIVE ORDER. WITHOUT SPECIFICS, IT IS IMPOSSIBLE FOR THE PARTIES TO
ENGAGE IN ANY MEANINGFUL DISCUSSION OR NEGOTIATIONS. WHILE IT IS TRUE
THAT THE ASSUMPTION OF ALL APPOINTMENT AND/OR PROMOTION POWER BY MR.
GRAZIANO MIGHT WELL HAVE BEEN CAUSED BY THE DECISION TO ABOLISH THE
OFFICE OF INSPECTOR GENERAL AND ITS RESULTANT IMPACT ON THE SUPERVISORY
HIERARCHY, THE FACT REMAINS THAT THE OFFICE OF INVESTIGATION, IN ANY
EVENT, FAILED TO GIVE NOTICE AND PROVIDE OPPORTUNITY FOR GOOD FAITH
CONSULTATION WITH THE UNION WITH RESPECT TO THE IMPACT OF THE CHANGES
WHICH WERE ATTRIBUTABLE TO SUCH BUSINESS EXIGENCY. MOREOVER, AND IN ANY
EVENT, THE CHANGE IN THE POSTING REQUIREMENTS, AREA SELECTION, AND
POSITIVE BIDS CERTAINLY WERE NOT THE PRODUCT OF ANY SUCH BUSINESS
EXIGENCY.
ACCORDINGLY, IN VIEW OF THE FOREGOING, I FIND THAT THE RESPONDENT
VIOLATED SECTION 19(A)(6) OF THE EXECUTIVE ORDER BY VIRTUE OF ITS ACTION
IN CHANGING THE PROMOTION AND/OR APPOINTMENT PRACTICES WITHOUT PRIOR
CONSULTATION WITH THE UNION. I FURTHER FIND THAT SUCH ACTION BY THE
RESPONDENT TENDS TO INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY THE ORDER, AND THEREFORE, ALSO IS
VIOLATIVE OF SECTION 19(A)(1). /5/
WITH RESPECT TO THE MEMORANDUM DEALING WITH THE "ACCEPTABLE MODES OF
DRESS AND APPEARANCE", I FIND, THAT INASMUCH AS THE MEMORANDUM CONTAINS
NO SPECIFIC CHANGES AND GENERALLY COMPORTS WITH THE STANDARD OF DRESS
EXPECTED OF ALL INDIVIDUALS REPRESENTING THE U.S. GOVERNMENT IN
DEALINGS WITH THE PRIVATE SECTOR, INSUFFICIENT BASIS EXISTS FOR A
SECTION 19(A)(6) FINDING.
LASTLY, WITH RESPECT TO THE MEMORANDUM DEALING WITH THE ESTABLISHMENT
OF A "SPECIAL INVESTIGATIVE UNIT", I FIND THAT SUCH MEMORANDUM FALLS
WITHIN THE PURVIEW OF SECTION 12(B) OF THE ORDER AND THAT THE RESPONDENT
WAS NOT UNDER AN OBLIGATION TO CONSULT THEREON PRIOR TO ITS
ESTABLISHMENT.
UPON THE BASIS OF THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF
LAW AND PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED,
AND SECTION 203.25(B) OF THE RULES AND REGULATIONS, I RECOMMEND THAT THE
ASSISTANT SECRETARY OF LABOR FOR LABOR MANAGEMENT RELATIONS ADOPT THE
FOLLOWING ORDER DESIGNED TO EFFECTUATE THE POLICIES OF EXECUTIVE ORDER
11491, AS AMENDED.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE DEPARTMENT OF
AGRICULTURE AND OFFICE OF INVESTIGATION, WASHINGTON, D.C., SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY CHANGING THE PROMOTION OR APPOINTMENT PRACTICES IN
EFFECT OR ANY OTHER CONDITION OF EMPLOYMENT WITHOUT FIRST CONFERRING OR
NEGOTIATING WITH LOCAL 1375, NATIONAL FEDERATION OF FEDERAL EMPLOYEES OR
ANY OTHER EXCLUSIVE REPRESENTATIVE OF ITS INVESTIGATIVE EMPLOYEES.
IN ANY LIKE OR RELATED MANNER INTERFERRING WITH, RESTRAINING OR
COERCING EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED THEM BY THE
EXECUTIVE ORDER.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) UPON REQUEST, CONSULT, CONFER, OR NEGOTIATE WITH LOCAL 1375,
NATIONAL FEDERATION OF FEDERAL EMPLOYEES OR ANY OTHER EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES WITH RESPECT TO CHANGES IN THE PROMOTION
OR APPOINTMENT TO VACANCIES PRACTICES.
(B) POST AT ITS REGIONAL FACILITIES THROUGHOUT THE UNITED STATES
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED
BY THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS.
UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE DIRECTOR OF THE
OFFICE OF INVESTIGATION 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 DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE
THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
(C) PURSUANT TO SECTION 203.26 OF THE REGULATIONS NOTIFY THE
ASSISTANT SECRETARY IN WRITING, WITHIN TWENTY (20) DAYS FROM THE DATE OF
THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED: MAY 23, 1975
WASHINGTON, DC
WE WILL NOT INSTITUTE CHANGE IN THE PROMOTION OR APPOINTMENT TO
VACANCIES PRACTICES WITHOUT CONSULTING, CONFERRING, OR NEGOTIATING WITH
LOCAL 1375, NATIONAL FEDERATION OF FEDERAL EMPLOYEES OR ANY OTHER
EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES.
WE WILL, UPON REQUEST, CONSULT, CONFER, OR NEGOTIATE WITH LOCAL 1375,
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, WITH RESPECT TO CHANGES IN THE
PROMOTION OR APPOINTMENT TO VACANCIES PRACTICES.
DATED: . . . BY: . . .
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 ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, WHOSE
ADDRESS IS: 14120 GATEWAY BUILDING, 3535 MARKET STREET, PHILADELPHIA,
PENNSYLVANIA 19104.
/1/ DURING THE COURSE OF THE HEARING COMPLAINANT WAS, UPON MOTION
UNOPPOSED BY THE RESPONDENT, ALLOWED TO AMEND THE COMPLAINT DATED
DECEMBER 5, 1974, TO INCLUDE A 19(A)(6) ALLEGATION AND DELETE THE
19(A)(2) AND 19(A)(5) ALLEGATIONS. THE 19(A)(6) AMENDMENT WAS ALLOWED
SOLELY ON THE BASIS THAT THE EVENTS SET FORTH IN THE COMPLAINT, IF
PROVED, WOULD ALSO SUPPORT VIOLATION OF SECTION 19(A)(6) OF THE
EXECUTIVE ORDER.
/2/ ALTHOUGH THE RESPONDENT IN ITS POST HEARING BRIEF CONTENDS THAT
THE 1968 COLLECTIVE BARGAINING AGREEMENT IS NO LONGER IN EFFECT, THE
RECORD IS BARREN OF ANY EVIDENCE SUPPORTING SUCH CONTENTION.
/3/ THE UNION WAS NOT INFORMED OF THE CHANGES BY RESPONDENT, BUT
RATHER LEARNED OF THEM INDIRECTLY BY MEANS NOT SET FORTH IN THE RECORD.
FOOTNOTE /4/ CARRIED OVER FROM PAGE 3.
/4/ ALTHOUGH THE EXISTING PROMOTION PLAN MADE PROVISION FOR SUCH
NATIONWIDE POSTING, ACCORDING TO THE UNCONTROVERTED TESTIMONY OF UNION
PRESIDENT RENKEN, IN PRACTICE BOTH THE POSTING AND SELECTION WERE
GENERALLY WITHIN THE REGIONAL AREA.
/5/ ARMY AND AIR FORCE EXCHANGE SERVICE, PACIFIC EXCHANGE SYSTEM,
HAWAII REGIONAL EXCHANGE, A/SLMR NO. 454.
5 A/SLMR 554; P. 574; CASE NO. 72-4109; AUGUST 29, 1975.
VANDENBERG AFB,
4392D AEROSPACE SUPPORT GROUP,
VANDENBERG AFB, CALIFORNIA
A/SLMR NO. 554
ON SEPTEMBER 30, 1974, THE ASSISTANT SECRETARY ISSUED HIS DECISION
AND ORDER IN A/SLMR NO. 435, IN WHICH HE FOUND THE RESPONDENT ACTIVITY
HAD VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY WALKING OUT OF A
SCHEDULED BARGAINING SESSION, AND REFUSING TO MEET AND CONFER ON OTHER
SUBJECTS OF BARGAINING. UNDER THE CIRCUMSTANCES OF THE CASE, AND
CONTRARY TO THE CONCLUSION OF THE ADMINISTRATIVE LAW JUDGE, SUCH
CONDUCT, IN THE ASSISTANT SECRETARY'S VIEW, CONSTITUTED MORE THAN A
"TECHNICAL VIOLATION" OF THE ORDER.
ON AUGUST 8, 1975, THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL)
ISSUED ITS DECISION ON APPEAL, FLRC NO. 74A-77, IN WHICH IT HELD THAT
THE FINDING OF A VIOLATION OF SECTION 19(A)(1) AND (6), IN THE
CIRCUMSTANCES OF THE CASE, WAS INCONSISTENT WITH THE PURPOSES OF THE
ORDER. ACCORDINGLY, THE COUNCIL SET ASIDE THE ASSISTANT SECRETARY'S
DECISION IN A/SLMR NO. 435, AND REMANDED THE CASE TO HIM FOR
APPROPRIATE ACTION.
BASED ON THE COUNCIL'S HOLDING IN FLRC NO. 74A-77 AND THE RATIONALE
CONTAINED THEREIN, THE ASSISTANT SECRETARY ORDERED THAT THE COMPLAINT IN
THE CASE BE DISMISSED IN ITS ENTIRETY.
VANDENBERG AFB,
4392D AEROSPACE SUPPORT GROUP,
VANDENBERG AFB, CALIFORNIA
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1001,
VANDENBERG AFB, CALIFORNIA
ON JUNE 10, 1974, ADMINISTRATIVE LAW JUDGE FRANCIS E. DOWD ISSUED HIS
REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING IN WHICH HE
FOUND THAT THE RESPONDENT HAD COMMITTED A "TECHNICAL VIOLATION" OF
SECTION 19(A)(6) OF THE ORDER BY WALKING OUT OF A SCHEDULED BARGAINING
SESSION. THE ADMINISTRATIVE LAW JUDGE FOUND FURTHER THAT THE VIOLATION
WAS RENDERED MOOT BY SUBSEQUENT ACTIONS OF THE RESPONDENT, AND HE
RECOMMENDED, THEREFORE, THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
THEREAFTER, ON SEPTEMBER 30, 1974, IN A/SLMR NO. 435, THE ASSISTANT
SECRETARY DISAGREED WITH THE ADMINISTRATIVE LAW JUDGE'S CONCLUSION THAT
THE RESPONDENT'S CONDUCT CONSTITUTED MERELY A "TECHNICAL VIOLATION"
WHICH DID NOT REQUIRE A REMEDIAL ORDER AND ORDERED THE RESPONDENT TO
REMEDY ITS VIOLATION OF SECTION 19(A)(1) AND (6) OF THE EXECUTIVE ORDER.
ON AUGUST 8, 1975, THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL)
ISSUED ITS DECISION ON APPEAL IN THE SUBJECT CASE, FINDING THAT THE
ASSISTANT SECRETARY'S DECISION WAS, UNDER THE CIRCUMSTANCES OF THIS
CASE, INCONSISTENT WITH THE PURPOSES OF THE ORDER. ACCORDINGLY,
PURSUANT TO SECTION 2411.17(B) OF ITS RULES, THE COUNCIL SET ASIDE THE
ASSISTANT SECRETARY'S DECISION AND REMANDED THE CASE TO HIM FOR
APPROPRIATE ACTION CONSISTENT WITH ITS DECISION.
BASED ON THE COUNCIL'S HOLDING IN THE INSTANT CASE AND THE RATIONALE
CONTAINED THEREIN, I SHALL ORDER THAT THE COMPLAINT HEREIN BE DISMISSED
IN ITS ENTIRETY.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 72-4109 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
AUGUST 29, 1975
VANDENBERG AIR FORCE BASE,
4392D AEROSPACE SUPPORT GROUP,
VANDENBERG AIR FORCE BASE,
CALIFORNIA
AND
LOCAL UNION 1001, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES,
VANDENBERG AIR FORCE BASE,
CALIFORNIA
THIS APPEAL AROSE FROM A DECISION AND ORDER OF THE ASSISTANT
SECRETARY WHO, UPON A COMPLAINT FILED BY LOCAL UNION 1001, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, VANDENBERG AIR FORCE BASE, CALIFORNIA
(HEREIN CALLED THE UNION), HELD THAT THE 4392D AEROSPACE GROUP,
VANDENBERG AIR FORCE BASE, CALIFORNIA (HEREIN REFERRED TO AS THE
ACTIVITY), HAD VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY
UNILATERALLY TERMINATING THE PARTIES' REGULARLY SCHEDULED NEGOTIATING
SESSION BASED ON AN ALLEGED IMPASSE WITH RESPECT TO ONE SUBJECT OF
BARGAINING AND REFUSING TO MEET AND CONFER ON OTHER SUBJECTS OF
BARGAINING.
THE FACTUAL BACKGROUND OF THIS CASE, AS FOUND BY THE ADMINISTRATIVE
LAW JUDGE AND ADOPTED BY THE ASSISTANT SECRETARY, IS AS FOLLOWS: THE
UNION IS THE CERTIFIED REPRESENTATIVE OF SEPARATE UNITS OF PROFESSIONAL
AND NONPROFESSIONAL EMPLOYEES AT THE ACTIVITY. DURING THE NEGOTIATION
OF THE INITIAL CONTRACT FOR THE PROFESSIONAL UNIT, THE UNION PROPOSED
THAT THE PARTIES JOINTLY NEGOTIATE A SINGLE AGREEMENT COVERING BOTH
UNITS, SINCE THE CONTRACT COVERING THE NONPROFESSIONAL UNIT WAS ABOUT TO
TERMINATE, BUT THE FIRST SESSION IN THIS FORMAT BROKE DOWN.
SUBSEQUENTLY, THE ACTIVITY PROPOSED A DIFFERENT NEGOTIATING PROCEDURE--
JOINT BARGAINING OF SEPARATE CONTRACTS-- AND THE UNION ACCEPTED THE
PROPOSAL AS THE FIRST AGENDA ITEM FOR THE NEXT REGULARLY SCHEDULED
BARGAINING SESSION. HOWEVER, WHEN THE ACTIVITY ATTEMPTED TO DISCUSS THE
PROPOSAL AT THAT SESSION, THE UNION REFUSED TO DISCUSS THE PROPOSAL AND
REFUSED TO LET THE ACTIVITY EXPLAIN ITS POSITION. THE ACTIVITY'S CHIEF
NEGOTIATOR THEN STATED THAT HE CONSIDERED THE NEGOTIATIONS TO BE AT AN
IMPASSE, AND WHEN THE UNION NEGOTIATOR ATTEMPTED TO BEGIN DISCUSSION OF
THE NEXT AGENDA ITEM, THE ACTIVITY'S NEGOTIATOR STATED FURTHER THAT HE
DID NOT INTEND TO CONTINUE THE NEGOTIATIONS UNTIL THE IMPASSE WAS
RESOLVED. /1/ IN RESPONSE, THE UNION NEGOTIATOR STATED THAT HE WOULD
FILE AN UNFAIR LABOR PRACTICE CHARGE CITING THE ACTIVITY'S REFUSAL TO
BARGAIN. THEREUPON, THE ACTIVITY NEGOTIATING TEAM LEFT THE SESSION.
HOWEVER, ON THE NEXT DAY, THE ACTIVITY'S CHIEF NEGOTIATOR COMMUNICATED
TO HIS UNION COUNTERPART AN OFFER TO RESUME NEGOTIATIONS AND, IN AN
INFORMAL CONTACT WITH A MEMBER OF THE ACTIVITY NEGOTIATING TEAM, THE
UNION'S CHIEF NEGOTIATOR WAS INFORMED THAT THE ACTIVITY WOULD NOT INSIST
ON DISCUSSING THE FIRST AGENDA ITEM. THIS OFFER WAS REAFFIRMED IN
RESPONSE TO THE UNFAIR LABOR PRACTICE CHARGE WHICH THE UNION FILED 2
DAYS LATER WITH THE ACTIVITY, BUT THE UNION SUSPENDED NEGOTIATIONS
PENDING RESOLUTION OF ITS COMPLAINT. SUBSEQUENTLY, EFFORTS BY THE
FEDERAL MEDIATION AND CONCILIATION SERVICE TO FACILITATE THE RESUMPTION
OF NEGOTIATIONS PROVED TO BE WITHOUT EFFECT. /2/
THE ADMINISTRATIVE LAW JUDGE FOUND THAT WHEN THE ACTIVITY WALKED OUT
OF THE MEETING, IT HAD COMMITTED A TECHNICAL VIOLATION OF SECTION
19(A)(6) OF THE ORDER IN THAT IT DID NOT HAVE A RIGHT TO INSIST, TO THE
POINT OF IMPASSE, THAT THE UNION DISCUSS ITS PROPOSAL FOR
DUAL-SIMULTANEOUS NEGOTIATIONS. THE ADMINISTRATIVE LAW JUDGE THEN,
HOWEVER, REVIEWED THE SUBSEQUENT EVENTS AND CONCLUDED:
HOWEVER, I FURTHER FIND THAT THIS VIOLATION WAS RENDERED MOOT THE
FOLLOWING DAY WHEN THE
UNION WAS ADVISED TWICE . . . THAT THE ACTIVITY HAD RECEDED FROM ITS
POSITION AND WAS WILLING
TO RETURN TO THE BARGAINING TABLE. IN THESE CIRCUMSTANCES, I CANNOT
UNDERSTAND WHY THE UNION
REFUSED TO ACCEPT THIS OFFER BY THE ACTIVITY. EVEN IF THE UNION HAD
SOME DOUBT ABOUT THE
ACTIVITY'S GOOD FAITH, IT COULD QUICKLY TEST THIS GOOD FAITH BY
RETURNING TO THE BARGAINING
TABLE. INSTEAD, THE UNION INSISTED UPON FILING AN UNFAIR LABOR
PRACTICE CHARGE TO WHICH THE
ACTIVITY PROMPTLY RESPONDED . . . THAT THE ACTIVITY'S DECISION WITH
RESPECT TO THE CHARGE WAS
TO "NEGOTIATE SERIOUSLY ON ANY APPROPRIATE MATTER." THERE IS NO
EVIDENCE IN THE RECORD TO
SUGGEST THAT THE ACTIVITY HAD IN MIND ANYTHING BUT TO DO PRECISELY
WHAT AN ASSISTANT
SECRETARY'S ORDER WOULD ACCOMPLISH IF A VIOLATION WERE FOUND, I.E.,
TO ORDER THE ACTIVITY BACK
TO THE BARGAINING TABLE. I CONCLUDE THAT AS OF THE DATE THAT THE
UNFAIR LABOR PRACTICE CHARGE
WAS FILED, THE ACTIVITY WAS NOT INSISTING TO IMPASSE UPON MULTI-UNIT
BARGAINING AS A CONDITION
PRECEDENT TO BARGAINING. THEREFORE, I RECOMMEND THAT NO VIOLATION OF
SECTION 19(A)(6), (1),
AND (2) OF THE EXECUTIVE ORDER BE FOUND.
IN LIGHT OF THE FOREGOING, I FURTHER CONCLUDE THAT THE UNION'S
CONDUCT IN THIS ENTIRE
MATTER, BOTH AT THE (REGULARLY SCHEDULED BARGAINING SESSION) AND
THEREAFTER, RAISES A SERIOUS
QUESTION AS TO ITS OWN GENUINE WILLINGNESS TO BARGAIN IN GOOD FAITH.
IT IS NOTED, HOWEVER,
THAT APPARENTLY THE ACTIVITY DID NOT FILE AN UNFAIR LABOR PRACTICE
CHARGE AGAINST THE
UNION. INSTEAD, THE ACTIVITY HAS ATTEMPTED TO BARGAIN WITH THE
UNION, DESPITE THE UNION'S
APPARENT UNWILLINGNESS TO DO SO, AT THE SAME TIME THAT IT IS
BARGAINING IN GOOD FAITH WITH THE
SAME UNION FOR A CONTRACT COVERING A DIFFERENT UNIT AT THE SAME
LOCATION.
ON REVIEW, THE ASSISTANT SECRETARY AGREED WITH THE ADMINISTRATIVE LAW
JUDGE THAT, IN THE PARTICULAR CIRCUMSTANCES OF THE CASE, THE ACTIVITY
VIOLATED SECTION 19(A)(6) OF THE ORDER BY UNILATERALLY TERMINATING THE
PARTIES' NEGOTIATION SESSION BASED ON THE ALLEGED IMPASSE WITH RESPECT
TO ONE SUBJECT OF BARGAINING AND REFUSING TO MEET AND CONFER ON OTHER
SUBJECTS OF BARGAINING. THE ASSISTANT SECRETARY ALSO FOUND THAT SUCH
CONDUCT CONSTITUTED AN IMPROPER INTERFERENCE WITH EMPLOYEE RIGHTS IN
VIOLATION OF SECTION 19(A)(1) OF THE ORDER. THE ASSISTANT SECRETARY
THEN CONCLUDED:
HOWEVER, I DISAGREE WITH THE ADMINISTRATIVE LAW JUDGE'S CONCLUSION
THAT, UNDER THE
CIRCUMSTANCES OF THIS CASE, THE RESPONDENT'S IMPROPER CONDUCT
CONSTITUTED MERELY A "TECHNICAL
VIOLATION" OF THE ORDER WHICH DID NOT REQUIRE A REMEDIAL ORDER.
ACCORDINGLY, I SHALL ORDER
THAT THE RESPONDENT REMEDY ITS VIOLATION OF SECTION 19(A)(1) AND (6)
OF THE ORDER.
THE ACTIVITY APPEALED THE ASSISTANT SECRETARY'S DECISION TO THE
COUNCIL, ALLEGING THAT THE DECISION WAS ARBITRARY AND CAPRICIOUS AND
PRESENTED MAJOR POLICY ISSUES. THE COUNCIL ACCEPTED THE ACTIVITY'S
PETITION FOR REVIEW, CONCLUDING THAT A MAJOR POLICY ISSUE WAS PRESENT
CONCERNING THE FINDING OF A VIOLATION OF SECTION 19(A)(1) AND (6) AND
THE ISSUANCE OF A REMEDIAL ORDER IN THE CIRCUMSTANCES OF THIS CASE. THE
COUNCIL ALSO DETERMINED THAT THE ACTIVITY'S REQUEST FOR A STAY MET THE
CRITERIA FOR GRANTING SUCH A REQUEST AS SET FORTH IN SECTION
2411.47(C)(2) OF ITS RULES AND GRANTED THE REQUEST. THE ACTIVITY AND
THE UNION FILED BRIEFS WITH THE COUNCIL AS PROVIDED IN SECTION 2411.16
OF THE COUNCIL'S RULES.
AS INDICATED ABOVE, THE ASSISTANT SECRETARY FOUND THAT THE ACTIVITY
VIOLATED SECTION 19(A)(1) AND (6) BY UNILATERALLY TERMINATING THE
PARTIES' REGULARLY SCHEDULED BARGAINING SESSION. IN THE OPINION OF THE
COUNCIL, THE FINDING OF A VIOLATION OF SECTION 19(A)(1) AND (6), BASED
ON THE ACTIVITY'S CONDUCT IN THE CIRCUMSTANCES OF THIS CASE, IS
INCONSISTENT WITH THE PURPOSES OF THE ORDER.
SECTION 11(A) /3/ OF THE ORDER IMPOSES ON AN AGENCY (OR ACTIVITY) AND
A LABOR ORGANIZATION ENGAGED IN THE PROCESS OF NEGOTIATING A COLLECTIVE
BARGAINING AGREEMENT THE DUTY TO NEGOTIATE IN GOOD FAITH. SECTION
19(A)(6) /4/ PROVIDES THAT AGENCY MANAGEMENT SHALL NOT REFUSE TO
NEGOTIATE AS REQUIRED BY THE ORDER. THUS, THE ISSUE BEFORE THE
ASSISTANT SECRETARY IN THIS CASE WAS WHETHER, BASED WHOLLY ON THE SERIES
OF EVENTS COMPLAINED OF HEREIN, THE ACTIVITY VIOLATED THE ORDER BY
FAILING TO NEGOTIATE IN GOOD FAITH WITH THE UNION.
WHILE AN IMPASSE IN NEGOTIATIONS WHICH RESULTS FROM A DEMAND THAT
CERTAIN IMPROPER CONDITIONS BE MET BEFORE NEGOTIATIONS CAN CONTINUE MAY,
UNDER CERTAIN CIRCUMSTANCES, CONSTITUTE A REFUSAL TO NEGOTIATE IN GOOD
FAITH, IT IS DIFFICULT TO CONCLUDE THAT THE CIRCUMSTANCES OF THIS CASE
ARE AN APPROPRIATE BASIS FOR THE FINDING OF SUCH A REFUSAL TO NEGOTIATE.
THOUGH THE ACTIVITY'S CHIEF NEGOTIATOR DID REFUSE TO NEGOTIATE
REGARDING THE SECOND AGENDA ITEM PENDING THE MEDIATION OF THE IMPASSE
OVER THE FIRST ITEM ON THE AGENDA, ALMOST AS SOON AS THAT REFUSAL WAS
MADE, THE ACTIVITY RETRACTED IT AND OFFERED TO RESUME NEGOTIATIONS.
SUBSEQUENTLY AND CONSISTENTLY, BOTH IN ITS RESPONSE TO THE UNION'S
UNFAIR LABOR PRACTICE CHARGE AND IN INFORMAL CONTACTS WITH THE UNION,
THE ACTIVITY REITERATED ITS WILLINGNESS TO RESUME NEGOTIATIONS AND TO
WITHDRAW ITS INSISTENCE ON NEGOTIATION OF THE FIRST AGENDA ITEM.
HOWEVER, THE LABOR ORGANIZATION HAS CONSISTENTLY REFUSED TO RETURN TO
THE NEGOTIATING TABLE UNTIL ITS COMPLAINT WAS RESOLVED.
WHAT IS AT ISSUE IN THIS CASE IS WHETHER A VIOLATION OF THE ORDER
SHOULD HAVE BEEN FOUND ON THE BASIS OF SO BRIEF AN INTERRUPTION IN THE
NEGOTIATIONS. IN OUR VIEW, WHEN ALL OF THE CIRCUMSTANCES OF THE
SITUATION ARE TAKEN INTO ACCOUNT, IT IS EVIDENT THAT THE ACTIVITY'S
CONDUCT IN THIS ONE INSTANCE WAS OF A DE MINIMIS NATURE AND THUS IS NOT
SUFFICIENT TO CONSTITUTE A FAILURE TO NEGOTIATE IN GOOD FAITH IN
VIOLATION OF THE ORDER. EXPERIENCE IN LABOR RELATIONS, WHETHER IN THE
FEDERAL LABOR-MANAGEMENT RELATIONS PROGRAM, ON THE STATE AND LOCAL
GOVERNMENT LEVEL, OR IN THE PRIVATE SECTOR, INDICATES THAT THERE ARE
OCCASIONS WHEN, DURING THE COURSE OF NEGOTIATING AN AGREEMENT,
REPRESENTATIVES OF EITHER PARTY, MANAGEMENT OR LABOR ORGANIZATION,
ENGAGE IN CONDUCT WHICH MIGHT, STANDING ALONE, CONSTITUTE THE BASIS FOR
AN UNFAIR LABOR PRACTICE COMPLAINT. HOWEVER, THAT EXPERIENCE ALSO
INDICATES THAT IT IS NOT UNCOMMON FOR THE PARTY QUICKLY TO CEASE
ENGAGING IN SUCH CONDUCT AND TO CONTINUE NEGOTIATIONS IN GOOD FAITH.
/5/ THE COUNCIL FEELS STRONGLY THAT IN APPROPRIATE FACTUAL SITUATIONS,
SUCH AS THAT IN THIS CASE, SIMILARLY BRIEF INTERRUPTIONS OF NEGOTIATIONS
WITH A DE MINIMIS EFFECT SHOULD NOT WARRANT THE FINDING OF A VIOLATION.
RATHER, AN ISOLATED INCIDENT WHICH RESULTS IN SUCH A BRIEF INTERRUPTION
SHOULD BE EXAMINED IN THE CONTEXT OF THE TOTALITY OF THE RESPONDENT'S
BARGAINING CONDUCT FOR A DETERMINATION AS TO WHETHER IT WOULD EFFECTUATE
THE PURPOSES OF THE ORDER TO FIND A VIOLATION WHEN NO FURTHER BENEFIT
WOULD ACCRUE FROM THAT FINDING AND FROM THE RESULTANT REMEDIAL ORDER.
THUS, WE CONCLUDE THAT IN THE INSTANT CASE, WHERE THE REPRESENTATIVES OF
THE ACTIVITY CEASED TO ENGAGE IN THE ALLEGED IMPROPER CONDUCT
IMMEDIATELY AFTER IT OCCURRED, AND WHERE THE ACTIVITY AT ALL TIMES
SOUGHT TO CONTINUE THE NEGOTIATIONS IN GOOD FAITH, A FINDING THAT THE
ACTIVITY VIOLATED THE ORDER IS NOT WARRANTED. /6/
MOREOVER, IN ADDITION TO OUR CONCLUSION THAT THE CONDUCT OF THE
ACTIVITY IN THE CIRCUMSTANCES HEREIN DID NOT CONSTITUTE A VIOLATION OF
THE ORDER, IT IS ALSO THE OPINION OF THE COUNCIL THAT LITIGATION OF THIS
CASE IS ITSELF INCONSISTENT WITH THE PURPOSES OF THE ORDER. THE
NEGOTIATIONS BETWEEN THE PARTIES TO THIS CASE HAVE BEEN SUSPENDED SINCE
THE UNFAIR LABOR PRACTICE CHARGE WAS ORIGINALLY FILED. THIS HAS
OCCURRED IN THE FACE OF THE EXPRESS OFFER AND THE CONTINUED WILLINGNESS
OF THE ACTIVITY TO RESUME BARGAINING. THIS HAS MEANT, IN ITS MOST
SERIOUS ASPECT, THAT THE EMPLOYEES IN THE PROFESSIONAL UNIT HAVE BEEN
WITHOUT THE PROTECTION AFFORDED BY A COLLECTIVE BARGAINING AGREEMENT
DURING THE ENTIRE PERIOD IN WHICH THE COMPLAINT WAS PROCESSED. IN THE
OPINION OF THE COUNCIL, LITIGATION OF THIS SORT DOES NOT EFFECTUATE THE
LONG-TERM ESTABLISHMENT OF COLLECTIVE BARGAINING IN THE FEDERAL PROGRAM.
THE PREAMBLE OF EXECUTIVE ORDER 11491, AS AMENDED, STATES ONE OF THE
PURPOSES OF THE FEDERAL LABOR RELATIONS PROGRAM AS "THE MAINTENANCE OF
CONSTRUCTIVE AND COOPERATIVE RELATIONSHIPS BETWEEN LABOR ORGANIZATIONS
AND MANAGEMENT OFFICIALS . . ." /7/ TO THAT END, THE ORDER PROVIDES THE
MEANS FOR THE ESTABLISHMENT AND MAINTENANCE OF SUCH RELATIONSHIPS.
NEVERTHELESS, THE PRIMARY RESPONSIBILITY FOR MAINTAINING COOPERATION
BETWEEN LABOR ORGANIZATIONS AND MANAGEMENT LIES WITH THOSE PARTIES
THEMSELVES. /8/ THUS, IT DOES NOT SERVE THE PURPOSES OF THE ORDER WHEN
THE PARTIES USE THE SANCTIONS PROVIDED THEREIN AS THE FIRST, AND NOT THE
LAST, RESORT FOR THE SETTLEMENT OF THEIR DISPUTES. COOPERATIVE LABOR
RELATIONS ARE NOT ESTABLISHED OR MAINTAINED WHEN A LABOR ORGANIZATION OR
THE MANAGEMENT OF AN AGENCY ESTABLISHES AS ITS FIRST PRIORITY, NOT THE
NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT, BUT THE VINDICATION OF
ITS POSITION IN AN UNFAIR LABOR PRACTICE PROCEEDING.
THE PURPOSES OF THE ORDER WILL BEST BE SERVED IF CASES SUCH AS THE
ONE HEREIN ARE SCREENED FROM THE UNFAIR LABOR PRACTICE PROCEDURES OF THE
ASSISTANT SECRETARY. IN ITS RECENT REVIEW OF THE FEDERAL LABOR
RELATIONS PROGRAM UNDER THE EXECUTIVE ORDER, THE COUNCIL CONCLUDED "THAT
THE PROCESSING OF UNFAIR LABOR PRACTICE CASES CAN BE IMPROVED GREATLY IF
THE ASSISTANT SECRETARY, PURSUANT TO HIS AUTHORITY TO PRESCRIBE
REGULATIONS NEEDED TO ADMINISTER HIS FUNCTIONS UNDER THE ORDER, MODIFIES
HIS PROCEDURE TO PERMIT MEMBERS OF HIS STAFF TO CONDUCT SUCH INDEPENDENT
INVESTIGATION IN THESE CASES AS HE DEEMS NECESSARY IN ORDER TO DETERMINE
WHETHER THERE IS A REASONABLE BASIS FOR THE COMPLAINT . . . THIS
PROCEDURE WILL, IN OUR VIEW, FACILITATE THE INFORMAL RESOLUTION OF
UNFAIR LABOR PRACTICE ISSUES." /9/ CONSISTENT WITH THIS RECOMMENDATION,
THE ASSISTANT SECRETARY HAS PROMULGATED AND PUBLISHED REGULATIONS WHICH
ESTABLISH HIS AUTHORITY TO INVESTIGATE UNFAIR LABOR PRACTICE COMPLAINTS.
/10/ IN THE OPINION OF THE COUNCIL, THIS INVESTIGATIVE AUTHORITY OF THE
ASSISTANT SECRETARY PROVIDES A MECHANISM BY WHICH UNNECESSARY LITIGATION
OF THIS SORT MAY BE DIVERTED FROM THE UNFAIR LABOR PRACTICE PROCEDURES.
THROUGH INVESTIGATION INTO THE CIRCUMSTANCES OF CASES IN WHICH CONTRACT
NEGOTIATIONS HAVE BROKEN DOWN DUE TO CONDUCT ALLEGED TO CONSTITUTE AN
UNFAIR LABOR PRACTICE, THE ASSISTANT SECRETARY WILL BE ABLE TO IDENTIFY
THOSE IN WHICH A CONTINUED WILLINGNESS TO BARGAIN EXISTS AND THE EFFECTS
OF THE ALLEGED IMPROPRIETY, IF ANY IMPROPER CONDUCT OCCURRED, HAVE BEEN
REMOVED. WHERE SUCH CIRCUMSTANCES ARE FOUND TO EXIST, AND IT IS CLEAR
THAT NOTHING MORE IS TO BE GAINED BY THE PARTIES, THE EMPLOYEES, OR THE
FEDERAL PROGRAM IN THE FURTHER PROCESSING OF THE COMPLAINT, THE
ASSISTANT SECRETARY MAY PROPERLY DISMISS THAT COMPLAINT, THEREBY
REMOVING IT FROM THE LITIGATION PROCESS. /11/
FOR THE FOREGOING REASONS, WE FIND THAT THE ASSISTANT SECRETARY'S
DECISION THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) IN THE
CIRCUMSTANCES OF THIS CASE IS INCONSISTENT WITH THE PURPOSES OF THE
ORDER. ACCORDINGLY, PURSUANT TO SECTION 2411.17(B) OF THE COUNCIL'S
RULES OF PROCEDURE, WE SET ASIDE THE ASSISTANT SECRETARY'S DECISION AND
REMAND THE CASE TO HIM FOR APPROPRIATE ACTION CONSISTENT WITH OUR
DECISION.
BY THE COUNCIL.
ISSUED: AUGUST 8, 1975
/1/ THE RECORD INDICATES THAT THE UNION, DURING THE DISCUSSION OF THE
GROUND RULES FOR NEGOTIATION, HAD DECLARED AN IMPASSE AND REFUSED TO
PROCEED WITH THE AGENDA, AND THAT THE PARTIES AT THAT TIME REQUESTED THE
INTERVENTION OF THE FEDERAL MEDIATION AND CONCILIATION SERVICE.
FURTHER, THE RECORD INDICATES THAT, UPON DECLARING THE IMPASSE AT THE
NEGOTIATION SESSION HEREIN, THE ACTIVITY'S CHIEF NEGOTIATOR STATED HIS
INTENTION TO REQUEST THE INTERVENTION OF THE FEDERAL MEDIATION AND
CONCILIATION SERVICE. OFFICIAL REPORT OF PROCEEDINGS, PP. 134-160.
/2/ THE RECORD INDICATES THAT THE ACTIVITY'S CHIEF NEGOTIATOR AND THE
UNION'S CHIEF NEGOTIATOR FOR THE PROFESSIONAL UNIT HAD A SMALL NUMBER OF
MEETINGS REGARDING THE PROFESSIONAL UNIT CONTRACT SUBSEQUENT TO THE
MEETING WITH THE FEDERAL MEDIATION AND CONCILIATION SERVICE, ALTHOUGH NO
FORMAL NEGOTIATIONS WERE HELD. OFFICIAL REPORT OF PROCEEDINGS, PP.
152-160.
/3/ SECTION 11(A) PROVIDES, IN PERTINENT PART, AS FOLLOWS:
SEC. 11. NEGOTIATION OF AGREEMENTS. (A) AN AGENCY AND A LABOR
ORGANIZATION THAT HAS BEEN ACCORDED EXCLUSIVE RECOGNITION, THROUGH
APPROPRIATE REPRESENTATIVES, SHALL MEET AT REASONABLE TIMES AND CONFER
IN GOOD FAITH WITH RESPECT TO PERSONNEL POLICIES AND PRACTICES AND
MATTERS AFFECTING WORKING CONDITIONS . . .
/4/ SECTION 19(A)(6) PROVIDES, IN PERTINENT PART, AS FOLLOWS:
SEC. 19. UNFAIR LABOR PRACTICES. (A) AGENCY MANAGEMENT SHALL NOT--
. . . .
(6) REFUSE TO CONSULT, CONFER, OR NEGOTIATE WITH A LABOR ORGANIZATION
AS REQUIRED BY THIS ORDER.
/5/ WHILE PRIVATE SECTOR PRECEDENTS ARE NOT CONTROLLING IN THE
FEDERAL LABOR-MANAGEMENT RELATIONS PROGRAM, VARIOUS DECISIONS OF THE
NATIONAL LABOR RELATIONS BOARD ILLUSTRATE THIS OBSERVATION. SEE, FOR
EXAMPLE, FRED F. KNIPSCHILD, ET AL., D/B/A GENERAL DEHYDRATED FOODS, 45
NLRB NO. 145 (1942), NOCONA BOOT COMPANY, 116 NLRB NO. 273 (1956), AND
WHITING MILK COMPANY, 145 NLRB NO. 137 (1964).
/6/ THE ASSISTANT SECRETARY'S FINDING THAT THE ACTIVITY VIOLATED
SECTION 19(A)(1) IS BASED ON THE SAME CONDUCT AS THAT WHICH HE FOUND TO
CONSTITUTE A VIOLATION OF SECTION 19(A)(6). ACCORDINGLY, AS THERE IS NO
BASIS IN THAT CONDUCT FOR THE FINDING OF A VIOLATION OF SECTION
19(A)(6), THERE IS ALSO, AND FOR THE SAME REASONS, NO BASIS FOR THE
FINDING OF A VIOLATION OF SECTION 19(A)(1).
/7/ THE PREAMBLE OF EXECUTIVE ORDER 11491, AS AMENDED, READS AS
FOLLOWS:
WHEREAS THE PUBLIC INTEREST REQUIRES HIGH STANDARDS OF EMPLOYEE
PERFORMANCE AND THE CONTINUAL DEVELOPMENT AND IMPLEMENTATION OF MODERN
AND PROGRESSIVE WORK PRACTICES TO FACILITATE IMPROVED EMPLOYEE
PERFORMANCE AND EFFICIENCY; AND
WHEREAS THE WELL-BEING OF EMPLOYEES AND EFFICIENT ADMINISTRATION OF
THE GOVERNMENT ARE BENEFITED BY PROVIDING EMPLOYEES AN OPPORTUNITY TO
PARTICIPATE IN THE FORMULATION AND IMPLEMENTATION OF PERSONNEL POLICIES
AND PRACTICES AFFECTING THE CONDITIONS OF THEIR EMPLOYMENT; AND
WHEREAS THE PARTICIPATION OF EMPLOYEES SHOULD BE IMPROVED THROUGH THE
MAINTENANCE OF CONSTRUCTIVE AND COOPERATIVE RELATIONSHIPS BETWEEN LABOR
ORGANIZATIONS AND MANAGEMENT OFFICIALS; AND
WHEREAS SUBJECT TO LAW AND THE PARAMOUNT REQUIREMENTS OF PUBLIC
SERVICE, EFFECTIVE LABOR-MANAGEMENT RELATIONS WITHIN THE FEDERAL SERVICE
REQUIRE A CLEAR STATEMENT OF THE RESPECTIVE RIGHTS AND OBLIGATIONS OF
LABOR ORGANIZATIONS AND AGENCY MANAGEMENT:
NOW, THEREFORE, BY VIRTUE OF THE AUTHORITY VESTED IN ME BY THE
CONSTITUTION AND STATUTES OF THE UNITED STATES, INCLUDING SECTIONS 3301
AND 7301 OF TITLE 5 OF THE UNITED STATES CODE, AND AS PRESIDENT OF THE
UNITED STATES, I HEREBY DIRECT THAT THE FOLLOWING POLICIES SHALL GOVERN
OFFICERS AND AGENCIES OF THE EXECUTIVE BRANCH OF THE GOVERNMENT IN ALL
DEALINGS WITH FEDERAL EMPLOYEES AND ORGANIZATIONS REPRESENTING SUCH
EMPLOYEES. (EXECUTIVE ORDER 11491, AS AMENDED, LABOR-MANAGEMENT
RELATIONS IN THE FEDERAL SERVICE (1975), P. 7.)
/8/ IN THE REPORT ACCOMPANYING EXECUTIVE ORDER 11491, EMPHASIS WAS
PLACED ON THE INFORMAL RESOLUTION BY THE PARTIES OF ALLEGED UNFAIR LABOR
PRACTICES PRIOR TO THE FILING OF A COMPLAINT WITH THE ASSISTANT
SECRETARY: "ALLEGED UNFAIR LABOR PRACTICES OTHER THAN THOSE SUBJECT TO
AN APPLICABLE GRIEVANCE OR APPEALS PROCEDURE SHOULD BE INVESTIGATED BY
THE AGENCY AND LABOR ORGANIZATION INVOLVED AND INFORMAL ATTEMPTS TO
RESOLVE THE COMPLAINTS SHOULD BE MADE BY THE PARTIES. IF INFORMAL
ATTEMPTS ARE UNSUCCESSFUL IN DISPOSING OF THE COMPLAINTS WITHIN A
REASONABLE PERIOD OF TIME, BOTH PARTIES MAY AGREE TO STIPULATE THE FACTS
TO THE ASSISTANT SECRETARY AND REQUEST A DECISION. IN LIEU OF A JOINT
REQUEST, EITHER PARTY MAY REQUEST THE ASSISTANT SECRETARY TO ISSUE A
DECISION ON THE MATTER." STUDY COMMITTEE REPORT AND RECOMMENDATIONS,
AUGUST 1969, LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975),
SECTION D.3., P. 69. THE ASSISTANT SECRETARY'S REGULATIONS, AS A
CONDITION PRECEDENT TO THE FILING OF A COMPLAINT, REQUIRE THAT AN
ATTEMPT BE MADE BY THE PARTIES TO RESOLVE INFORMALLY THE ALLEGED UNFAIR
LABOR PRACTICE. RULES AND REGULATIONS OF THE ASSISTANT SECRETARY,
SECTION 203.2.
MOREOVER, BY WAY OF ANALOGY, WHAT WAS SAID IN THAT SAME REPORT
PERTAINING TO THE RESOLUTION OF NEGOTIATION IMPASSES IS EQUALLY
APPLICABLE TO THE RESOLUTION OF DISPUTES BETWEEN PARTIES OVER UNFAIR
LABOR PRACTICES: "THE READY AVAILABILITY OF THIRD-PARTY PROCEDURES FOR
RESOLUTION OF NEGOTIATION IMPASSES COULD CAUSE THE UNDESIRED ESCALATION
EFFECT WHEREBY THE PARTIES, INSTEAD OF WORKING OUT THEIR DIFFERENCES BY
HARD, EARNEST AND SERIOUS NEGOTIATION, CONTINUALLY WOULD TAKE THEIR
PROBLEMS TO A THIRD PARTY FOR SETTLEMENT . . . IT IS GENERALLY
RECOGNIZED THAT AGREEMENTS VOLUNTARILY ARRIVED AT BY THE PARTIES ARE THE
HALLMARK OF THE INDUSTRIAL DEMOCRACY ENJOYED IN THIS COUNTRY." STUDY
COMMITTEE REPORT AND RECOMMENDATIONS, AUGUST 1969, LABOR-MANAGEMENT
RELATIONS IN THE FEDERAL SERVICE (1975), SECTION F, PP. 72-73.
/9/ REPORT AND RECOMMENDATIONS OF THE FEDERAL LABOR RELATIONS COUNCIL
ON THE AMENDMENT OF EXECUTIVE ORDER 11491, AS AMENDED, LABOR-MANAGEMENT
RELATIONS IN THE FEDERAL SERVICE (1975), SECTION VIII.2., P. 49.
/10/ THE RULES AND REGULATIONS OF THE ASSISTANT SECRETARY, SECTION
203.6 PROVIDE AS FOLLOWS:
SECTION 203.6 INVESTIGATION OF COMPLAINTS; COOPERATION BY
ACTIVITIES, AGENCIES AND LABOR ORGANIZATIONS; OFFICIAL TIME FOR
WITNESSES; BURDEN OF PROOF; AND AVAILABILITY OF EVIDENCE.
THE AREA DIRECTOR SHALL CONDUCT SUCH INDEPENDENT INVESTIGATION OF THE
COMPLAINT AS HE DEEMS NECESSARY.
(A) A PARTY MAY REQUEST THE AREA DIRECTOR TO CONDUCT AN INDEPENDENT
INVESTIGATION UPON A SHOWING:
(1) THAT THERE IS SUFFICIENT INFORMATION TO WARRANT FURTHER
PROCESSING OF THE COMPLAINT; AND
(2) THAT THERE ARE PROSPECTIVE INDIVIDUAL WITNESSES FROM WHOM HE HAS
BEEN UNABLE TO OBTAIN A SIGNED STATEMENT BECAUSE OF GEOGRAPHIC
DISPERSION OF THE WITNESSES OR BECAUSE OF THEIR RELUCTANCE TO PROVIDE
INFORMATION TO A PARTY; THE REQUEST MUST CLEARLY IDENTIFY ANY SUCH
WITNESSES AND INDICATE THE NATURE OF THEIR EXPECTED TESTIMONY; OR
(3) THAT THE REQUESTING PARTY LACKS ACCESS TO PERTINENT DOCUMENTS OR
DATA; THE REQUEST SHOULD CLEARLY IDENTIFY SUCH DOCUMENTS OR DATA,
ESTABLISH THEIR RELEVANCE, AND INDICATE THE REASON WHY THE REQUESTING
PARTY HAS BEEN UNABLE TO OBTAIN THEM.
(B) AT THE CONCLUSION OF ANY INDEPENDENT INVESTIGATION CONDUCTED AT
THE REQUEST OF A PARTY, TO THE EXTENT LEGALLY PERMISSIBLE, THE ASSISTANT
REGIONAL DIRECTOR SHALL:
(1) TRANSMIT TO THE REQUESTING PARTY ANY DATA OR COPIES OF ANY
DOCUMENTS OBTAINED AS A RESULT OF SUCH INVESTIGATION, NOTIFYING ALL
OTHER PARTIES SO THAT THEY MAY BE SUPPLIED COPIES OF THE SAME UPON
REQUEST;
(2) TRANSMIT TO ALL PARTIES COPIES OF SIGNED STATEMENTS OBTAINED FROM
ANY WITNESS INTERVIEWED;
(3) NOTIFY THE REQUESTING PARTY OF THE NAMES OF ALL PROSPECTIVE
WITNESSES IDENTIFIED BY HIM WHO HAVE BEEN CONTACTED AND WHO HAVE NOT
SIGNED STATEMENTS.
(C) IN CONNECTION WITH THE INDEPENDENT INVESTIGATION OF COMPLAINTS,
ACTIVITIES, AGENCIES AND LABOR ORGANIZATIONS ARE EXPECTED TO COOPERATE
FULLY IN SUCH INVESTIGATIONS WITH THE AREA DIRECTOR.
(D) WHEN, DURING THE COURSE OF AN INDEPENDENT INVESTIGATION BY THE
AREA DIRECTOR, IT IS DETERMINED THAT A CERTAIN EMPLOYEE OR CERTAIN
EMPLOYEES SHOULD BE INTERVIEWED, SUCH EMPLOYEE OR EMPLOYEES SHALL BE
GRANTED OFFICIAL TIME FOR THE PERIOD OF SUCH INTERVIEW(S) ONLY INSOFAR
AS SUCH INTERVIEW(S) OCCUR(S) DURING REGULAR WORK HOURS AND WHEN THE
EMPLOYEE(S) WOULD OTHERWISE BE IN A WORK OR PAID LEAVE STATUS.
(E) THE COMPLAINANT SHALL BEAR THE BURDEN OF PROOF AT ALL STAGES OF
THE PROCEEDING REGARDING MATTERS ALLEGED IN ITS COMPLAINT, EXCEPT AS
OTHERWISE PROVIDED IN SECTION 203.7(B).
(F) A COMPLAINT ALLEGING A VIOLATION OF SECTION 19(B)(4) OF THE ORDER
SHALL RECEIVE THE HIGHEST PRIORITY INVESTIGATION.
(G) A COMPLAINT ALLEGING A VIOLATION OF SECTION 19(A)(2) OF THE ORDER
SHALL BE GIVEN PRIORITY OVER ALL OTHER COMPLAINTS UNDER SECTION 19
EXCEPT THOSE INVOLVING SECTION 19(B)(4) OF THE ORDER.
/11/ IT SHOULD BE NOTED THAT THIS IS NOT THE ONLY MEANS OPEN TO THE
ASSISTANT SECRETARY FOR SCREENING UNNECESSARY LITIGATION FROM THE UNFAIR
LABOR PRACTICE PROCEDURES. IN THE REPORT AND RECOMMENDATIONS
ACCOMPANYING EXECUTIVE ORDER 11491, IT WAS STATED: "IF THE ASSISTANT
SECRETARY FINDS . . . THAT A SATISFACTORY OFFER OF SETTLEMENT HAS BEEN
MADE, HE MAY DISMISS THE COMPLAINT." STUDY COMMITTEE REPORT AND
RECOMMENDATIONS, AUGUST 1969, LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE (1975), SECTION D. 3, P. 69. PURSUANT TO THIS RECOMMENDATION,
THE ASSISTANT SECRETARY HAS PROVIDED IN HIS REGULATIONS FOR SUCH
SETTLEMENTS. RULES AND REGULATIONS OF THE ASSISTANT SECRETARY, SECTION
203.7(A)(3). SEE ALSO SECTION 203.7(B)(4).
5 A/SLMR 553; P. 572; CASE NO. 70-4679; AUGUST 29, 1975.
VETERANS ADMINISTRATION HOSPITAL,
SAN FRANCISCO, CALIFORNIA
A/SLMR NO. 553
THIS CASE INVOLVED A REPRESENTATION PETITION FILED BY THE CALIFORNIA
ASSOCIATION FOR MEDICAL LABORATORY TECHNOLOGY ENGINEERS AND SCIENTISTS
OF CALIFORNIA. THE PETITIONER SOUGHT A UNIT OF ALL PROFESSIONAL MEDICAL
LABORATORY TECHNOLOGISTS EMPLOYED BY THE ACTIVITY, OR IN THE
ALTERNATIVE, A UNIT OF MEDICAL LABORATORY TECHNOLOGISTS, CHEMISTS AND
MICROBIOLOGISTS ASSIGNED PERMANENTLY TO THE CLINICAL PATHOLOGY SERVICE
WITHIN THE MEDICAL LABORATORY. THE RECORD INDICATED THAT, IN ADDITION
TO THE CHEMISTS AND MICROBIOLOGISTS IN THE LABORATORY, A NUMBER OF
EMPLOYEES IN THESE TWO CLASSIFICATIONS WERE EMPLOYED OUTSIDE THE
LABORATORY. THE ACTIVITY CONTENDED THAT NEITHER UNIT WAS APPROPRIATE
BECAUSE THE EMPLOYEES SOUGHT DID NOT HAVE A COMMUNITY OF INTEREST
SEPARATE AND DISTINCT FROM THE OTHER PROFESSIONAL EMPLOYEES OF THE
ACTIVITY (MEDICAL TECHNOLOGISTS WERE STIPULATED TO BE PROFESSIONAL
EMPLOYEES) AND, FURTHER, THAT SUCH UNITS WOULD NOT PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
FOR THE REASONS SET FORTH IN VETERANS ADMINISTRATION, WADSWORTH
HOSPITAL CENTER, A/SLMR NO. 546, A CASE IN WHICH THE PETITIONER SOUGHT
AN ELECTION IN EITHER OF TWO UNITS SIMILAR TO THOSE CLAIMED IN THE
INSTANT PROCEEDING, THE ASSISTANT SECRETARY FOUND THAT NEITHER THE
CLAIMED UNIT, NOR THE ALTERNATIVE UNIT, WAS APPROPRIATE FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION. IN THIS CONNECTION, HE NOTED THAT THE CLAIMED
EMPLOYEES DID NOT SHARE A COMMUNITY OF INTEREST SEPARATE AND DISTINCT
FROM OTHER GENERAL SCHEDULE PROFESSIONAL EMPLOYEES OF THE ACTIVITY, AND
THAT UNITS, LIMITED TO ONE OR SEVERAL OF SOME 22 PROFESSIONAL EMPLOYEE
CLASSIFICATIONS AT THE ACTIVITY, WOULD LEAD TO EXCESSIVE FRAGMENTATION
OF UNITS AMONG THE PROFESSIONAL GROUPS IN THE PARAMEDICAL SERVICES OF
THE ACTIVITY AND, THEREFORE, WOULD NOT PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF OPERATIONS. ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED
THAT THE PETITION BE DISMISSED.
VETERANS ADMINISTRATION HOSPITAL,
SAN FRANCISCO, CALIFORNIA /1/
AND
CALIFORNIA ASSOCIATION FOR
MEDICAL LABORATORY TECHNOLOGY
ENGINEERS AND SCIENTISTS OF
CALIFORNIA
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER PATRICIA BARAN.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE BRIEFS FILED BY
THE PARTIES, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, CALIFORNIA ASSOCIATION FOR MEDICAL LABORATORY
TECHNOLOGY ENGINEERS AND SCIENTISTS OF CALIFORNIA, SEEKS AN ELECTION IN
A UNIT OF ALL PROFESSIONAL MEDICAL LABORATORY TECHNOLOGISTS EMPLOYED AT
THE VETERANS ADMINISTRATION HOSPITAL, SAN FRANCISCO, EXCLUDING ALL OTHER
PROFESSIONAL EMPLOYEES, NONPROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
MANAGEMENT OFFICIALS AND SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
/2/ AT THE HEARING, THE PETITIONER INDICATED THAT, IN THE ALTERNATIVE,
IT WOULD BE WILLING TO PROCEED TO AN ELECTION IN A UNIT WHICH WOULD
INCLUDE THE MEDICAL LABORATORY TECHNOLOGISTS AND THE TWO NONSUPERVISORY
CHEMISTS AND THE ONE NONSUPERVISORY MICROBIOLOGIST WHO ARE ASSIGNED
PERMANENTLY TO THE CLINICAL PATHOLOGY SERVICE WITHIN THE MEDICAL
LABORATORY.
THE ACTIVITY CONTENDS THAT BOTH THE PETITIONED FOR UNIT AND THE
ALTERNATIVE UNIT ARE INAPPROPRIATE BECAUSE THE EMPLOYEES IN EITHER OF
THE PROPOSED UNITS DO NOT HAVE A COMMUNITY OF INTEREST SEPARATE AND
DISTINCT FROM THE OTHER PROFESSIONAL EMPLOYEES EMPLOYED AT THE ACTIVITY,
AND, FURTHER, THAT SUCH UNITS WOULD NOT PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. /3/
THE RECORD REVEALS THAT, AT THE ACTIVITY, THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES REPRESENTS A UNIT OF ALL NONPROFESSIONAL GENERAL
SCHEDULE EMPLOYEES; THE SERVICE EMPLOYEES INTERNATIONAL UNION
REPRESENTS A UNIT OF ALL WAGE GRADE EMPLOYEES; THE AMERICAN NURSES
ASSOCIATION REPRESENTS A UNIT OF ALL REGISTERED NURSES; THE
INTERNATIONAL FEDERATION OF FEDERAL POLICE REPRESENTS A UNIT OF ALL
GUARDS AND POLICEMEN; AND THE LABORERS INTERNATIONAL UNION OF NORTH
AMERICA REPRESENTS A UNIT OF CEMETERY EMPLOYEES. THE PROFESSIONAL
EMPLOYEES AT THE ACTIVITY, EXCEPT FOR THE REGISTERED NURSES REPRESENTED
BY THE AMERICAN NURSES ASSOCIATION, ARE NOT REPRESENTED EXCLUSIVELY.
THERE ARE APPROXIMATELY 22 GENERAL SCHEDULE PROFESSIONAL JOB
CLASSIFICATIONS WITHIN THE ACTIVITY-- INCLUDING MEDICAL TECHNOLOGISTS,
CHEMISTS, AND MICROBIOLOGISTS-- ENCOMPASSING SOME 123 EMPLOYEES, WITH
FROM ONE TO APPROXIMATELY THIRTY-TWO EMPLOYEES IN EACH OF THESE VARIOUS
PROFESSIONAL CLASSIFICATIONS.
THE ACTIVITY IS LOCATED IN SAN FRANCISCO, CALIFORNIA. ITS MISSION IS
TO PROVIDE GENERAL MEDICAL AND SURGICAL SERVICES TO ELIGIBLE VETERANS IN
THE AREA IN WHICH IT IS LOCATED. THE ACTIVITY'S BED CAPACITY PRESENTLY
IS APPROXIMATELY 330 AND IT EMPLOYS APPROXIMATELY 1400 EMPLOYEES.
OVERALL DIRECTION OF THE ACTIVITY IS VESTED IN THE HOSPITAL DIRECTOR.
THE ACTIVITY IS BASICALLY DIVIDED INTO TWO MAJOR SEGMENTS, NAMELY, THE
ADMINISTRATIVE SERVICES, WHICH INCLUDE BUILDING MANAGEMENT, FISCAL,
MEDICAL ADMINISTRATION, AND PERSONNEL FUNCTIONS, AND WHICH ARE UNDER THE
DIRECTION OF THE ASSISTANT HOSPITAL DIRECTOR, AND THE PROFESSIONAL
SERVICES, WHICH ARE UNDER THE DIRECTION OF THE CHIEF OF STAFF WHO IS
ASSISTED BY AN ASSISTANT CHIEF OF STAFF. WITH FEW EXCEPTIONS, THE
ACTIVITY'S GENERAL SCHEDULE PROFESSIONAL EMPLOYEES ARE UNDER THE
JURISDICTION OF THE CHIEF AND ASSISTANT CHIEF OF STAFF. THE MEDICAL
LABORATORY HAS TWO SECTIONS, NAMELY, THE CLINICAL PATHOLOGY SECTION AND
THE ANATOMICAL PATHOLOGY SECTION. THERE ARE SOME 29 MEDICAL
TECHNOLOGISTS IN THE CLINICAL PATHOLOGY SECTION OF THE LABORATORY AND
ONE MEDICAL TECHNOLOGIST IN THE ANATOMICAL PATHOLOGY SECTION. FURTHER,
THERE ARE TWO CHEMISTS AND ONE MICROBIOLOGIST IN THE CLINICAL PATHOLOGY
SECTION OF THE LABORATORY WHO WOULD BE INCLUDED IN THE PETITIONER'S
ALTERNATIVE UNIT. THE RECORD INDICATES, HOWEVER, THAT, IN ADDITION TO
THE CHEMISTS AND MICROBIOLOGISTS IN THE MEDICAL LABORATORY, THERE ARE
APPROXIMATELY 14 CHEMISTS AND 2 MICROBIOLOGISTS EMPLOYED BY THE ACTIVITY
OUTSIDE THE LABORATORY.
THE RECORD INDICATES THAT THE MEDICAL TECHNOLOGISTS, AS WELL AS THE
CHEMISTS AND MICROBIOLOGISTS IN THE LABORATORY, ARE SERVICED BY THE SAME
PERSONNEL AND FISCAL OFFICES, AND ARE GOVERNED BY THE SAME PERSONNEL
POLICIES AND PRACTICES AS ARE OTHER GENERAL SCHEDULE PROFESSIONAL
EMPLOYEES OF THE ACTIVITY. FURTHER, THE EVIDENCE ESTABLISHES THAT THE
MEDICAL TECHNOLOGISTS HAVE WORK CONTACTS WITH OTHER PROFESSIONAL
EMPLOYEES IN THE LABORATORY, AS WELL AS WITH OTHER PROFESSIONAL
EMPLOYEES OF THE ACTIVITY, AND THAT THEY, AS DO OTHER PROFESSIONALS
INVOLVED IN PATIENT CARE, VISIT THE WARDS AND HAVE DIRECT CONTACT WITH
PATIENTS IN PERFORMING THEIR DUTIES IN THE PATIENT'S ROOM. MOREOVER, IT
WAS NOTED THAT THE PETITIONER'S ALTERNATIVE UNIT WOULD NOT INCLUDE ALL
PROFESSIONAL EMPLOYEES AT THE ACTIVITY WITHIN THE PARTICULAR JOB
CLASSIFICATIONS SOUGHT AS THERE ARE SOME 14 CHEMISTS AND 2
MICROBIOLOGISTS EMPLOYED OUTSIDE OF THE MEDICAL LABORATORY.
IN VETERANS ADMINISTRATION, WADSWORTH HOSPITAL CENTER, CITED ABOVE,
THE PETITIONER SOUGHT AN ELECTION IN EITHER OF TWO SIMILAR EMPLOYEE
UNITS OF MEDICAL LABORATORY TECHNOLOGISTS, OR, IN THE ALTERNATIVE, OF
MEDICAL LABORATORY TECHNOLOGISTS AND CHEMISTS AND MICROBIOLOGISTS IN THE
LABORATORY. FOR THE REASONS EXPRESSED IN A/SLMR NO. 546, I FIND THAT IN
THE INSTANT CASE NEITHER THE PETITIONED FOR UNIT OF MEDICAL LABORATORY
TECHNOLOGISTS, NOR THE ALTERNATIVE UNIT OF THE MEDICAL LABORATORY
TECHNOLOGISTS, CHEMISTS, AND MICROBIOLOGISTS IN THE LABORATORY, IS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION AS THE EMPLOYEES
SOUGHT DO NOT SHARE A COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM
OTHER GENERAL SCHEDULE PROFESSIONAL EMPLOYEES OF THE ACTIVITY, AND AS
SUCH UNITS OF ONE OR SEVERAL OF SOME 22 PROFESSIONAL JOB
CLASSIFICATIONS, EVEN IF THE UNIT INCLUDED ALL EMPLOYEES IN THE
PARTICULAR JOB CLASSIFICATIONS SOUGHT, WOULD LEAD TO EXCESSIVE
FRAGMENTATION OF UNITS AMONG THE PROFESSIONAL GROUPS IN THE PARAMEDICAL
SERVICES OF THE ACTIVITY AND, THEREFORE, WOULD NOT PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. /4/ ACCORDINGLY, I SHALL
ORDER THAT THE PETITION HEREIN BE DISMISSED.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 70-4679 BE, AND IT
HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
AUGUST 29, 1975
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE UNIT APPEARS AS AMENDED AT THE HEARING.
/3/ THE PARTIES STIPULATED, AND THE RECORD SUPPORTS THE STIPULATION,
THAT MEDICAL TECHNOLOGISTS ARE PROFESSIONAL EMPLOYEES WITHIN THE MEANING
OF THE ORDER. SEE VETERANS ADMINISTRATION, WADSWORTH HOSPITAL CENTER,
A/SLMR NO. 546.
/4/ VETERANS ADMINISTRATION, WADSWORTH HOSPITAL CENTER, CITED ABOVE;
VETERANS ADMINISTRATION HOSPITAL, TAMPA, FLORIDA, A/SLMR NO. 330; AND
VETERANS ADMINISTRATION, VETERANS ADMINISTRATION HOSPITAL, BUFFALO, NEW
YORK, A/SLMR NO. 60.
5 A/SLMR 552; P. 570; CASE NO. 70-4696; AUGUST 29, 1975.
VETERANS ADMINISTRATION HOSPITAL,
PALO ALTO, CALIFORNIA
A/SLMR NO. 552
THIS CASE INVOLVED A REPRESENTATION PETITION FILED BY THE CALIFORNIA
ASSOCIATION FOR MEDICAL LABORATORY TECHNOLOGY ENGINEERS AND SCIENTISTS
OF CALIFORNIA. THE PETITIONER SOUGHT A UNIT OF ALL PROFESSIONAL MEDICAL
LABORATORY TECHNOLOGISTS EMPLOYED BY THE ACTIVITY, OR IN THE
ALTERNATIVE, A UNIT OF MEDICAL LABORATORY TECHNOLOGISTS AND CHEMISTS AND
MICROBIOLOGISTS REGULARLY ASSIGNED TO THE MEDICAL LABORATORY. THE
ACTIVITY CONTENDED THAT NEITHER UNIT WAS APPROPRIATE BECAUSE THE
EMPLOYEES SOUGHT DID NOT HAVE A COMMUNITY OF INTEREST SEPARATE AND
DISTINCT FROM THE OTHER PROFESSIONAL EMPLOYEES OF THE ACTIVITY (MEDICAL
TECHNOLOGISTS WERE STIPULATED TO BE PROFESSIONAL EMPLOYEES) AND,
FURTHER, THAT SUCH UNITS WOULD NOT PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS.
FOR THE REASONS SET FORTH IN VETERANS ADMINISTRATION, WADSWORTH
HOSPITAL CENTER, A/SLMR NO. 546, A CASE IN WHICH THE PETITIONER SOUGHT
AN ELECTION IN EITHER OF TWO UNITS SIMILAR TO THOSE CLAIMED IN THE
INSTANT PROCEEDING, THE ASSISTANT SECRETARY FOUND THAT NEITHER THE
CLAIMED UNIT, NOR THE ALTERNATIVE UNIT, WAS APPROPRIATE FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION. IN THIS CONNECTION, HE NOTED THAT THE CLAIMED
EMPLOYEES DID NOT SHARE A COMMUNITY OF INTEREST SEPARATE AND DISTINCT
FROM OTHER GENERAL SCHEDULE PROFESSIONAL EMPLOYEES OF THE ACTIVITY, AND
THAT SUCH UNITS, LIMITED TO ONE OR SEVERAL OF SOME 20 PROFESSIONAL
EMPLOYEE CLASSIFICATIONS AT THE ACTIVITY, COULD RESULT IN A MYRIAD OF
SEPARATE PROFESSIONAL EMPLOYEE UNITS, WHICH FRAGMENTATION WOULD NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF OPERATIONS. ACCORDINGLY,
THE ASSISTANT SECRETARY ORDERED THAT THE PETITION BE DISMISSED.
VETERANS ADMINISTRATION HOSPITAL,
PALO ALTO, CALIFORNIA /1/
AND
CALIFORNIA ASSOCIATION FOR
MEDICAL LABORATORY TECHNOLOGY
ENGINEERS AND SCIENTISTS OF
CALIFORNIA
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER PATRICIA BARAN.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE BRIEFS FILED BY
THE PARTIES, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, CALIFORNIA ASSOCIATION FOR MEDICAL LABORATORY
TECHNOLOGY ENGINEERS AND SCIENTISTS OF CALIFORNIA, SEEKS AN ELECTION IN
A UNIT OF ALL PROFESSIONAL MEDICAL LABORATORY TECHNOLOGISTS EMPLOYED AT
THE VETERANS ADMINISTRATION HOSPITAL, PALO ALTO, CALIFORNIA, EXCLUDING
ALL OTHER PROFESSIONAL EMPLOYEES, NONPROFESSIONAL EMPLOYEES, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, MANAGEMENT OFFICIALS AND SUPERVISORS AND GUARDS AS DEFINED IN
THE ORDER. /2/ AT THE HEARING, THE PETITIONER INDICATED THAT IT WOULD
BE WILLING TO PROCEED TO AN ELECTION IN A UNIT OF MEDICAL LABORATORY
TECHNOLOGISTS AND "ONLY THOSE NON-SUPERVISORY CHEMISTS AND
MICROBIOLOGISTS WHO ARE NORMALLY AND REGULARLY ASSIGNED TO THE MEDICAL
LABORATORY." IN THIS REGARD, THE RECORD REFLECTS THAT, AT PRESENT, THERE
ARE NO NONSUPERVISORY CHEMISTS ASSIGNED TO THE LABORATORY, ALTHOUGH ONE
CHEMIST WORKS WITHIN THE LABORATORY UNDER A SUPERVISORY CHEMIST ASSIGNED
TO THE LABORATORY SERVICE, AND THAT THERE ARE NO NONSUPERVISORY
MICROBIOLOGISTS EMPLOYED BY THE ACTIVITY.
THE ACTIVITY CONTENDS THAT BOTH THE PETITIONED FOR UNIT AND THE
ALTERNATIVE UNIT ARE INAPPROPRIATE BECAUSE THE EMPLOYEES IN EITHER OF
THE PROPOSED UNITS DO NOT HAVE A COMMUNITY OF INTEREST SEPARATE AND
DISTINCT FROM THE OTHER PROFESSIONAL EMPLOYEES EMPLOYED AT THE ACTIVITY
AND, FURTHER, THAT SUCH UNITS WOULD NOT PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. /3/
THE RECORD REVEALS THAT THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2110, REPRESENTS A UNIT OF ALL NONPROFESSIONAL
EMPLOYEES AT THE ACTIVITY, AND THAT THE CALIFORNIA NURSES ASSOCIATION
REPRESENTS A UNIT OF REGISTERED NURSES. THE PROFESSIONAL EMPLOYEES OF
THE ACTIVITY, EXCEPT FOR THE REGISTERED NURSES REPRESENTED BY THE
CALIFORNIA NURSES ASSOCIATION, ARE NOT REPRESENTED EXCLUSIVELY. AT THE
ACTIVITY THERE ARE APPROXIMATELY 20 GENERAL SCHEDULE PROFESSIONAL JOB
CLASSIFICATIONS-- INCLUDING MEDICAL TECHNOLOGISTS AND CHEMISTS--
ENCOMPASSING SOME 176 EMPLOYEES, WITH FROM ONE TO APPROXIMATELY
THIRTY-THREE EMPLOYEES IN EACH OF THESE VARIOUS PROFESSIONAL
CLASSIFICATIONS.
THE ACTIVITY IS LOCATED IN PALO ALTO, CALIFORNIA. ITS MISSION IS TO
PROVIDE GENERAL MEDICAL AND SURGICAL SERVICES TO ELIGIBLE VETERANS IN
THE AREA IN WHICH THE HOSPITAL IS LOCATED. IN ADDITION TO THE HOSPITAL
AT PALO ALTO, THE ACTIVITY OPERATES THE MENLO PARK DIVISION, LOCATED
APPROXIMATELY SEVEN MILES FROM THE PALO ALTO FACILITY. THE ACTIVITY IS
EQUIPPED TO ACCOMMODATE AN APPROXIMATE 1500 BED CAPACITY AND EMPLOYS
APPROXIMATELY 2500 EMPLOYEES. OVERALL DIRECTION OF THE ACTIVITY IS
VESTED IN THE HOSPITAL DIRECTOR WHO IS LOCATED AT THE PALO ALTO
FACILITY. REPORTING DIRECTLY TO HIM IS THE ASSISTANT HOSPITAL DIRECTOR
WHO HAS PRIMARY RESPONSIBILITY FOR THE HOSPITAL ADMINISTRATIVE SERVICES,
WHICH INCLUDE BUILDING MANAGEMENT, FISCAL, MEDICAL ADMINISTRATION, AND
PERSONNEL FUNCTIONS. ALSO REPORTING TO THE DIRECTOR ARE THREE CHIEFS OF
STAFF WHO EXERCISE OVERALL DIRECTION OF EMPLOYEES ENGAGED IN PERFORMING
FUNCTIONS IN THE SERVICES SPECIFICALLY RELATED TO PATIENT CARE, NAMELY
THE MEDICAL, SURGICAL, PSYCHIATRY, NURSING AND LABORATORY SERVICES.
MEDICAL LABORATORIES ARE LOCATED AT BOTH THE PALO ALTO AND MENLO PARK
FACILITIES. THESE LABORATORIES HAVE TWO BASIC SECTIONS, NAMELY THE
ANATOMIC PATHOLOGY SECTION AND THE CLINICAL PATHOLOGY SECTION. THE
LABORATORY LOCATED IN THE PALO ALTO FACILITY IS UNDER THE DIRECTION OF
THE CHIEF OF STAFF FOR PROFESSIONAL SERVICES, AND THE LABORATORY LOCATED
IN MENLO PARK IS UNDER THE DIRECTION OF THE CHIEF OF STAFF FOR THE MENLO
PARK DIVISION. THERE ARE APPROXIMATELY 20 MEDICAL TECHNOLOGISTS
EMPLOYED IN THE PALO ALTO LABORATORY AND 1 REGULAR PART-TIME
TECHNOLOGIST EMPLOYED IN THE MENLO PARK LABORATORY. AS INDICATED ABOVE,
THERE ARE NO CHEMISTS OR MICROBIOLOGISTS FORMALLY ASSIGNED TO THE
LABORATORIES, ALTHOUGH, IN ADDITION TO THE CHEMIST WHO WORKS IN THE
LABORATORY, THERE ARE SOME EIGHT OTHER NONSUPERVISORY CHEMISTS IN THE
ACTIVITY OUTSIDE OF THE LABORATORIES.
THE RECORD INDICATES THAT THE CLAIMED MEDICAL LABORATORY
TECHNOLOGISTS ARE GOVERNED BY THE SAME PERSONNEL POLICIES, PRACTICES,
RULES AND REGULATIONS, ARE SERVICED BY THE SAME PERSONNEL AND FISCAL
OFFICES, AND ENJOY OTHER SIMILAR CONDITIONS OF EMPLOYMENT AS OTHER
GENERAL SCHEDULE PROFESSIONAL EMPLOYEES OF THE ACTIVITY. MOREOVER, THEY
HAVE CONTACT WITH OTHER PROFESSIONAL EMPLOYEES OF THE ACTIVITY AND, LIKE
CERTAIN OTHER PROFESSIONAL EMPLOYEES OF THE ACTIVITY, THEY HAVE CONTACT
WITH PATIENTS IN PERFORMING THEIR DUTIES. FURTHER, IT WAS NOTED THAT,
IN ADDITION TO THE CHEMIST WHO WORKS IN THE LABORATORY, THERE ARE OTHER
CHEMISTS EMPLOYED BY THE ACTIVITY.
IN VETERANS ADMINISTRATION, WADSWORTH HOSPITAL CENTER, CITED ABOVE,
THE PETITIONER SOUGHT AN ELECTION IN EITHER OF TWO EMPLOYEE UNITS
SIMILAR TO THE ALTERNATIVE UNITS SOUGHT IN THE INSTANT PROCEEDING. FOR
THE REASONS SET FORTH IN THAT DECISION, I FIND THAT IN THE INSTANT CASE
NEITHER THE CLAIMED UNIT, NOR THE ALTERNATIVE UNIT, IS APPROPRIATE FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION AS THE EMPLOYEES SOUGHT DO NOT
SHARE A SEPARATE AND DISTINCT COMMUNITY OF INTEREST FROM OTHER GENERAL
SCHEDULE PROFESSIONAL EMPLOYEES OF THE ACTIVITY, AND AS SUCH UNITS OF
ONE OR SEVERAL OF SOME 20 PROFESSIONAL JOB CLASSIFICATIONS COULD RESULT
ULTIMATELY IN A MYRIAD OF SEPARATE PROFESSIONAL EMPLOYEE UNITS IN THE
PARAMEDICAL SERVICES OF THE ACTIVITY, WHICH FRAGMENTATION CLEARLY WOULD
NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. /4/
UNDER THESE CIRCUMSTANCES, I FIND THAT A UNIT OF MEDICAL LABORATORY
TECHNOLOGISTS OR, IN THE ALTERNATIVE, A UNIT OF MEDICAL LABORATORY
TECHNOLOGISTS AND CHEMISTS AND MICROBIOLOGISTS REGULARLY ASSIGNED TO THE
LABORATORY, IS NOT APPROPRIATE AND, ACCORDINGLY, I SHALL ORDER THAT THE
PETITION HEREIN BE DISMISSED.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 70-4696 BE, AND IT
HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
AUGUST 29, 1975
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE UNIT APPEARS AS AMENDED AT THE HEARING.
/3/ THE PARTIES STIPULATED, AND THE RECORD SUPPORTS THE STIPULATION,
THAT MEDICAL TECHNOLOGISTS ARE PROFESSIONAL EMPLOYEES WITHIN THE MEANING
OF THE ORDER. SEE VETERANS ADMINISTRATION, WADSWORTH HOSPITAL CENTER,
A/SLMR NO. 546.
/4/ CF. VETERANS ADMINISTRATION, WADSWORTH HOSPITAL CENTER, CITED
ABOVE; VETERANS ADMINISTRATION HOSPITAL, TAMPA, FLORIDA, A/SLMR NO.
330; AND VETERANS ADMINISTRATION, VETERANS ADMINISTRATION HOSPITAL,
BUFFALO, NEW YORK, A/SLMR NO. 60.
5 A/SLMR 551; P. 568; CASE NO. 42-2763(CU); AUGUST 29, 1975.
VETERANS ADMINISTRATION HOSPITAL,
TAMPA, FLORIDA
A/SLMR NO. 551
THIS CASE INVOLVED A PETITION FOR CLARIFICATION OF UNIT BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3402 (AFGE),
SEEKING TO CLARIFY THE EXISTING EXCLUSIVELY RECOGNIZED UNIT AT THE
ACTIVITY IN TAMPA, FLORIDA, SO AS TO INCLUDE ELIGIBLE EMPLOYEES OF THE
ACTIVITY'S OUTPATIENT CLINIC, LOCATED IN ORLANDO, FLORIDA. THE ACTIVITY
AGREED THAT THE EMPLOYEES OF THE ORLANDO OUTPATIENT CLINIC SHOULD BE
INCLUDED IN THE EXISTING UNIT AND, IN THIS REGARD, BOTH THE ACTIVITY AND
THE AFGE ASSERTED THAT THE ORLANDO OUTPATIENT CLINIC IS NOT A SEPARATE
ORGANIZATIONAL ENTITY BUT, RATHER, IS AN EXTENSION OF THE ACTIVITY'S
OUTPATIENT CLINIC LOCATED AT TAMPA.
BASED ON ALL OF THE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND
INSUFFICIENT BASIS TO SUPPORT A FINDING THAT THE EMPLOYEES OF THE
ORLANDO OUTPATIENT CLINIC CONSTITUTE AN ACCRETION OR ADDITION TO THE
EXISTING UNIT REPRESENTED EXCLUSIVELY BY THE AFGE. IN THIS REGARD, THE
ASSISTANT SECRETARY PARTICULARLY NOTED THE SIGNIFICANT GEOGRAPHIC
SEPARATION OF APPROXIMATELY 90 MILES BETWEEN THE ACTIVITY AND THE
ORLANDO OUTPATIENT CLINIC; THE MINIMAL AMOUNT OF ANY INTERCHANGE,
TRANSFER OR JOB-RELATED CONTACT AMONG THE EMPLOYEES OF THE ACTIVITY IN
CLASSIFICATIONS REPRESENTED AT THE ACTIVITY BY THE AFGE; THE FACT THAT
ONLY TWO EMPLOYEES IN CLASSIFICATIONS REPRESENTED AT THE ACTIVITY BY THE
AFGE TRANSFERRED TO THE ORLANDO OUTPATIENT CLINIC; AND THE LACK OF
IMMEDIATE COMMON SUPERVISION AMONG THE EMPLOYEES AT THE ORLANDO
OUTPATIENT CLINIC AND THOSE AT THE ACTIVITY REPRESENTED IN THE
EXCLUSIVELY RECOGNIZED BARGAINING UNIT.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THE INSTANT PETITION
DISMISSED.
VETERANS ADMINISTRATION HOSPITAL,
TAMPA, FLORIDA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3402
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER HAZEL M. ELLISON.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 3402, HEREIN CALLED AFGE, THE EXCLUSIVE REPRESENTATIVE OF CERTAIN
EMPLOYEES OF THE VETERANS ADMINISTRATION HOSPITAL, TAMPA, FLORIDA, /1/
SEEKS TO CLARIFY THE EXISTING EXCLUSIVELY RECOGNIZED UNIT SO AS TO
INCLUDE ELIGIBLE EMPLOYEES OF THE ACTIVITY'S OUTPATIENT CLINIC, LOCATED
IN ORLANDO, FLORIDA. THE ACTIVITY AGREES THAT THE EMPLOYEES OF THE
ORLANDO OUTPATIENT CLINIC SHOULD BE INCLUDED IN THE EXISTING UNIT. IN
THIS REGARD, THE ACTIVITY AND THE AFGE ASSERT THAT THE ORLANDO
OUTPATIENT CLINIC IS NOT A SEPARATE ORGANIZATIONAL ENTITY BUT, RATHER,
IS AN EXTENSION OF THE ACTIVITY'S OUTPATIENT CLINIC AT TAMPA.
THE ACTIVITY, LOCATED AT TAMPA, FLORIDA, PROVIDES MEDICAL AND
SURGICAL SERVICES, AND OUTPATIENT MEDICAL AND RELATED SERVICES, TO
ELIGIBLE VETERANS IN THE AREA IN WHICH IT IS LOCATED. IT HAS AN
AUTHORIZED STAFF OF APPROXIMATELY 1,590 EMPLOYEES, INCLUDING EMPLOYEES
WHO ARE ASSIGNED TO THE ORLANDO OUTPATIENT CLINIC. OVERALL DIRECTION OF
THE ACTIVITY IS VESTED IN THE HOSPITAL DIRECTOR. REPORTING DIRECTLY TO
HIM IS THE ASSISTANT HOSPITAL DIRECTOR WHO HAS PRIMARY RESPONSIBLITY FOR
THE HOSPITAL'S ADMINISTRATIVE SERVICES. /2/ ALSO REPORTING TO THE
DIRECTOR IS THE CHIEF OF STAFF WHO EXERCISES OVERALL DIRECTION OF ALL
EMPLOYEES ENGAGED IN PERFORMING THE SERVICES SPECIFICALLY RELATED TO
PATIENT CARE. REPORTING DIRECTLY TO THE CHIEF OF STAFF IS AN ASSOCIATE
CHIEF OF STAFF FOR AMBULATORY CARE WHO EXERCISES SUPERVISION OVER THE
OUTPATIENT CLINIC LOCATED AT THE ACTIVITY IN TAMPA, AS WELL AS THE
ORLANDO OUTPATIENT CLINIC.
THE RECORD REVEALS THAT THE ORLANDO OUTPATIENT CLINIC, WHICH IS
LOCATED APPROXIMATELY 90 MILES FROM THE ACTIVITY, WAS ESTABLISHED ON
NOVEMBER 25, 1974, AS A RESULT OF LEGISLATION AUTHORIZING THE VETERANS
ADMINISTRATION TO PROVIDE MORE CONVENIENT OUTPATIENT MEDICAL AND RELATED
SERVICES TO VETERANS. ITS MISSION AND FUNCTIONS DO NOT DIFFER
MATERIALLY FROM THAT OF THE OUTPATIENT CLINIC WHICH IS LOCATED ON THE
ACTIVITY'S PREMISES IN TAMPA. THUS, THE ORLANDO OUTPATIENT CLINIC
PERFORMS MEDICAL AND RELATED SERVICES ON AN OUTPATIENT BASIS TO
QUALIFIED VETERANS, AND ALSO CERTIFIES ADMISSION TO THE HOSPITAL FOR
THOSE VETERANS REQUIRING ADDITIONAL CARE AND SERVICES WITHOUT FURTHER
EXAMINATION AT THE ACTIVITY.
THE RECORD REVEALS THAT THE ORLANDO OUTPATIENT CLINIC IS HEADED BY A
CHIEF, A PHYSICIAN, WHO REPORTS DIRECTLY TO THE ACTIVITY'S ASSOCIATE
CHIEF OF STAFF FOR AMBULATORY CARE. IN ADDITION, THE FOLLOWING MEDICAL
AND RELATED SERVICES PRESENTLY ARE LOCATED AT ORLANDO: MEDICAL
ADMINISTRATION, DENTAL, LABORATORY, RADIOLOGY, PSYCHOLOGY, PSYCHIATRY,
NURSING, PHARMACY, PROSTHETICS, REHABILITATION MEDICINES, DIETETICS, AND
SOCIAL WORK. IN THIS CONNECTION, THE EVIDENCE ESTABLISHES THAT FOR EACH
MEDICAL AND RELATED SERVICE COMPONENT LOCATED AT ORLANDO, THERE IS A
SIMILAR COMPONENT LOCATED AT THE ACTIVITY. FURTHER, ALTHOUGH THE CHIEF
OF EACH SERVICE LOCATED AT THE ACTIVITY IN TAMPA IS ALSO THE CHIEF OF
THE IDENTICAL SERVICE AT ORLANDO, THE RECORD DISCLOSES THAT THE DIRECT
DAY-TO-DAY SUPERVISION AT ORLANDO IS PERFORMED BY A SUPERVISOR LOCATED
AT ORLANDO. THE ORLANDO OUTPATIENT CLINIC WAS AUTHORIZED A FULL-TIME
STAFF OF 55 PERMANENT EMPLOYEES, INCLUDING 29 POSITIONS IN THE SAME
CLASSIFICATIONS FOUND IN THE EXCLUSIVELY REPRESENTED BARGAINING UNIT AT
THE ACTIVITY. INITIAL STAFFING OF ORLANDO WAS ACCOMPLISHED BY
RECRUITING FROM THE ACTIVITY'S WORKFORCE, FROM OTHER VETERANS
ADMINISTRATION HOSPITALS, AND BY REINSTATEMENTS AND SELECTIONS FROM
CIVIL SERVICE COMMISSION REGISTERS. THE RECORD SHOWS THAT OF THE 19
EMPLOYEES HIRED BY THE ORLANDO OUTPATIENT CLINIC IN CLASSIFICATIONS
REPRESENTED BY THE AFGE AT THE ACTIVITY IN TAMPA, ONLY TWO EMPLOYEES
FROM THE AFGE UNIT TRANSFERRED TO ORLANDO; THE OTHER 17 EMPLOYEES
COMING TO ORLANDO FROM OTHER SOURCES. FURTHER, THE EVIDENCE INDICATES
THAT, ASIDE FROM A LIMITED NUMBER OF NON-UNIT PROFESSIONAL AND
SUPERVISORY EMPLOYEES, INTERCHANGE AND TRANSFER OF EMPLOYEES BETWEEN THE
ACTIVITY AND THE ORLANDO OUTPATIENT CLINIC HAS BEEN MINIMAL AND IS
UNLIKELY TO INCREASE, AND THAT THERE IS MINIMAL JOB-RELATED CONTACT
BETWEEN EMPLOYEES OF THE ACTIVITY IN TAMPA AND THE ORLANDO OUTPATIENT
CLINIC, PARTICULARLY AMONG THOSE EMPLOYEES IN CLASSIFICATIONS
REPRESENTED BY THE AFGE AT THE ACTIVITY.
BASED ON THE FOREGOING CIRCUMSTANCES, I FIND INSUFFICIENT BASIS TO
SUPPORT A FINDING THAT THE EMPLOYEES OF THE ORLANDO OUTPATIENT CLINIC
CONSTITUTE AN ACCRETION OR ADDITION TO THE EXISTING UNIT REPRESENTED
EXCLUSIVELY BY THE AFGE AT THE ACTIVITY. IN THIS REGARD, PARTICULAR
NOTE WAS TAKEN OF THE SIGNIFICANT GEOGRAPHIC SEPARATION OF APPROXIMATELY
90 MILES BETWEEN THE ACTIVITY AND THE ORLANDO OUTPATIENT CLINIC; THE
MINIMAL AMOUNT OF INTERCHANGE, TRANSFER OR JOB-RELATED CONTACT AMONG THE
EMPLOYEES OF THE ACTIVITY AND THE ORLANDO OUTPATIENT CLINIC, ESPECIALLY
AMONG EMPLOYEES IN CLASSIFICATIONS REPRESENTED AT THE ACTIVITY BY THE
AFGE; THE FACT THAT ONLY TWO EMPLOYEES IN CLASSIFICATIONS REPRESENTED
AT THE ACTIVITY BY THE AFGE TRANSFERRED TO THE ORLANDO OUTPATIENT
CLINIC; AND THE LACK OF IMMEDIATE COMMON SUPERVISION AMONG THE
EMPLOYEES AT THE ORLANDO OUTPATIENT CLINIC AND THOSE AT THE ACTIVITY IN
TAMPA REPRESENTED IN THE EXCLUSIVELY RECOGNIZED BARGAINING UNIT.
ACCORDINGLY, I SHALL ORDER THAT THE PETITION HEREIN BE DISMISSED. /3/
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 42-2763(CU) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
AUGUST 29, 1975
/1/ ON JANUARY 31, 1974, THE AFGE WAS CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE OF ALL EMPLOYEES OF THE VETERANS ADMINISTRATION HOSPITAL,
TAMPA, FLORIDA, INCLUDING CANTEEN WORKERS, EXCLUDING ALL PROFESSIONAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS AND SUPERVISORS AND
GUARDS AS DEFINED IN THE ORDER.
/2/ THESE ADMINISTRATIVE SERVICES INCLUDE ENGINEERING, BUILDING
MANAGEMENT, FISCAL AND PERSONNEL FUNCTIONS.
/3/ IT WAS NOTED THAT THE ABOVE DISPOSITION WOULD NOT PRECLUDE THE
AFGE FROM FILING AN APPROPRIATE PETITION FOR AN ELECTION AMONG THE
ELIGIBLE EMPLOYEES OF THE ORLANDO OUTPATIENT CLINIC SEEKING THAT THEY BE
ADDED TO ITS EXISTING UNIT AT THE ACTIVITY IN TAMPA.
5 A/SLMR 550; P. 562; CASE NO. 22-5243(CA); AUGUST 28, 1975.
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE
A/SLMR NO. 550
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
NATIONAL TREASURY EMPLOYEES UNION (NTEU) ALLEGING THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY UNILATERALLY ISSUING
NEW TRAVEL REGULATIONS AND BY FAILING TO BARGAIN ABOUT THEIR
IMPLEMENTATION AND IMPACT.
NOTING THE RESPONDENT'S DENIAL THAT THE TRAVEL REGULATIONS SUPERSEDED
OR CHANGED THE TRAVEL PROVISIONS OF THE MULTI-DISTRICT AND MULTI-CENTER
AGREEMENTS BETWEEN THE RESPONDENT AND THE NTEU, THE ASSISTANT SECRETARY
CONCURRED IN THE FINDING OF THE ADMINISTRATIVE LAW JUDGE THAT THE
EVIDENCE FAILED TO ESTABLISH THAT THE AFOREMENTIONED TRAVEL REGULATIONS
WERE APPLIED IN SUCH A WAY AS TO CHANGE ANY OF THE TRAVEL PROVISIONS IN
THE ABOVE-NOTED AGREEMENTS. ACCORDINGLY, THE ASSISTANT SECRETARY, IN
AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, FOUND THAT DISMISSAL OF THE
INSTANT COMPLAINT WAS WARRANTED.
IN VIEW OF THE DISPOSITION HEREIN, THE ASSISTANT SECRETARY FOUND IT
UNNECESSARY TO PASS UPON THE ADMINISTRATIVE LAW JUDGE'S FINDING THAT THE
RESPONDENT AND THE COMPLAINANT VOLUNTARILY DECIDED, BY MULTI-UNIT
BARGAINING, TO MERGE THE SEPARATE UNITS REPRESENTED BY THE COMPLAINANT
IN THE DISTRICT OFFICES AND THE SERVICE CENTERS INTO NATIONWIDE DISTRICT
OFFICE AND SERVICE CENTER UNITS WITHOUT UTILIZING THE PRESCRIBED
ELECTION PROCEDURES. NOR WAS IT CONSIDERED NECESSARY TO PASS UPON THE
ADMINISTRATIVE LAW JUDGE'S FINDING THAT, ABSENT SOME FORM OF NATIONAL
RECOGNITION OR NATIONAL CONSULTATION RIGHTS, THE RESPONDENT WAS NOT
OBLIGED TO MEET AND CONFER WITH THE COMPLAINANT CONCERNING THE ISSUANCE
OF NEW TRAVEL REGULATIONS.
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE
AND
NATIONAL TREASURY EMPLOYEES UNION
ON JUNE 4, 1975, ADMINISTRATIVE LAW JUDGE SAMUEL A. CHAITOVITZ ISSUED
HIS REPORT AND RECOMMENDATIONS 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 AND THE
RESPONDENT FILED EXCEPTIONS WITH RESPECT TO THE ADMINISTRATIVE LAW
JUDGE'S REPORT AND RECOMMENDATIONS.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE
COMPLAINANT'S AND THE RESPONDENT'S EXCEPTIONS, I HEREBY ADOPT THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS,
AS MODIFIED HEREIN.
THE INSTANT COMPLAINT ALLEGED THAT THE RESPONDENT VIOLATED SECTION
19(A)(1) AND (6) OF THE ORDER BY UNILATERALLY ISSUING NEW TRAVEL
REGULATIONS AND BY FAILING TO BARGAIN ABOUT THEIR IMPLEMENTATION AND
IMPACT. THE RESPONDENT DENIED THAT ITS CONDUCT IN THIS MATTER WAS
VIOLATIVE OF THE ORDER AND, IN THIS REGARD, IT CONTENDED THAT THE TRAVEL
REGULATIONS CONTAINED IN MANUAL TRANSMITTAL 1763-22 DID NOT SUPERSEDE OR
CHANGE THE TRAVEL PROVISIONS OF THE MULTI-DISTRICT AGREEMENT OR THE
MULTI-CENTER AGREEMENT BETWEEN THE RESPONDENT AND THE COMPLAINANT. IN
THIS CONNECTION, THE ADMINISTRATIVE LAW JUDGE FOUND, AND I CONCUR, THAT
THE TRAVEL REGULATIONS PROMULGATED BY THE RESPONDENT WERE NOT APPLIED SO
AS TO CHANGE ANY OF THE TRAVEL PROVISIONS IN THE ABOVE-NOTED NEGOTIATED
AGREEMENTS. /1/ UNDER THESE CIRCUMSTANCES, I FIND THAT DISMISSAL OF THE
INSTANT COMPLAINT IS WARRANTED. /2/
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 22-5243(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
AUGUST 28, 1975
/1/ COMPARE DEPARTMENT OF THE NAVY, SUPERVISOR OF SHIPBUILDING,
CONVERSION AND REPAIR, PASCAGOULA, MISSISSIPPI, A/SLMR NO. 390.
/2/ IN VIEW OF THE DISPOSITION HEREIN, I FIND IT UNNECESSARY TO PASS
UPON THE ADMINISTRATIVE LAW JUDGE'S FINDING THAT THE RESPONDENT AND THE
COMPLAINANT VOLUNTARILY DECIDED, BY MULTI-UNIT BARGAINING, TO MERGE THE
SEPARATE UNITS REPRESENTED BY THE COMPLAINANT IN THE DISTRICT OFFICES
INTO A NATIONWIDE DISTRICT OFFICE UNIT, OR TO MERGE THE SEPARATE UNITS
REPRESENTED BY THE COMPLAINANT IN THE SERVICE CENTERS INTO A NATIONWIDE
SERVICE CENTER UNIT, WITHOUT UTILIZING THE PRESCRIBED ELECTION
PROCEDURES. NOR, UNDER THE CIRCUMSTANCES, WAS IT CONSIDERED NECESSARY
TO PASS UPON HIS FINDING THAT, ABSENT SOME FORM OF NATIONAL RECOGNITION
OR NATIONAL CONSULTATION RIGHTS, THE RESPONDENT WAS NOT OBLIGED TO MEET
AND CONFER WITH THE COMPLAINANT CONCERNING THE ISSUANCE OF THE NEW
TRAVEL REGULATIONS.
IN THE MATTER OF
NATIONAL TREASURY EMPLOYEES UNION
AND
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
NEAL FINE, ESQUIRE
1730 K STREET, N.W.
SUITE 1101
WASHINGTON, DC 20006
ROGER KAPLAN, ESQUIRE
1111 CONSTITUTION AVENUE, N.W.
ROOM 4109
WASHINGTON, DC 20224
BEFORE: SAMUEL A. CHAITOVITZ
PURSUANT TO A COMPLAINT FILED ON MARCH 8, 1974 UNDER EXECUTIVE ORDER
11491, AS AMENDED, HEREIN CALLED THE ORDER, BY NATIONAL TREASURY
EMPLOYEES UNION (HEREINAFTER CALLED THE COMPLAINANT OR NTEU) AGAINST THE
INTERNAL REVENUE SERVICE (HEREINAFTER CALLED IRS OR RESPONDENT) ALLEGING
THAT RESPONDENT VIOLATED SECTIONS 19(A)(1) AND (6) BY UNILATERALLY
ISSUING NEW TRAVEL REGULATIONS AND FAILING TO BARGAIN ABOUT THEIR
IMPLEMENTATIONS AND IMPACT, A NOTICE OF HEARING ON COMPLAINT WAS ISSUED
BY THE ASSISTANT REGIONAL DIRECTOR FOR LABOR MANAGEMENT SERVICES FOR THE
PHILADELPHIA REGION ON JUNE 17, 1974.
A HEARING WAS HELD BEFORE THE UNDERSIGNED IN WASHINGTON, D.C. ALL
PARTIES WERE REPRESENTED AND AFFORDED A FULL OPPORTUNITY TO BE HEARD, TO
PRESENT WITNESSES AND TO INTRODUCE OTHER RELEVANT EVIDENCE ON THE ISSUES
INVOLVED. UPON CONCLUSION OF THE TAKING OF TESTIMONY, BOTH PARTIES WERE
GIVEN AN OPPORTUNITY TO PRESENT ORAL ARGUMENTS AND BOTH PARTIES FILED
BRIEFS ON OR ABOUT OCTOBER 24, 1974, WHICH HAVE BEEN FULLY CONSIDERED.
UPON THE ENTIRE RECORD HEREIN, INCLUDING THE EVIDENCE ADDUCED AT THE
HEARING AND MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE
THE FOLLOWING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
AT ALL TIMES MATERIAL HEREIN NTEU REPRESENTED EMPLOYEES IN SEPARATE
UNITS LOCATED IN EACH OF 56 OF IRS' 58 /1/ DISTRICTS AND 11 OF 12
SERVICE CENTERS.
DURING 1969 THROUGH 1972 NTEU NEGOTIATED SEPARATE COLLECTIVE
BARGAINING AGREEMENTS FOR APPROXIMATELY TWELVE DISTRICTS AND FOUR
SERVICE CENTERS. IN 1970 NTEU FILED THREE CU PETITIONS WITH THE U.S.
DEPARTMENT OF LABOR IN ATTEMPT TO OBTAIN EXCLUSIVE RECOGNITION IN THREE
SEPARATE UNITS AT THE NATIONAL LEVEL. /2/ THESE THREE PETITIONS WERE
DISMISSED BY THE REGIONAL ADMINISTRATOR, WHO WAS AFFIRMED BY THE
ASSISTANT SECRETARY FOR LABOR MANAGEMENT RELATIONS. THE ASSISTANT
SECRETARY STATED THAT THE MERGER OF THE LOCAL UNITS INTO NATIONAL UNITS
SHOULD BE ACCOMPLISHED BY MEANS OF RO PETITIONS RATHER THAN CU
PETITIONS. THE ASSISTANT SECRETARY WAS AFFIRMED BY THE FEDERAL LABOR
RELATIONS COUNCIL. NO SUCH RO PETITIONS WERE FILED. /3/
IN 1972 THE IRS AND NTEU ENTERED INTO MULTI-UNIT NEGOTIATIONS IN
REGARD TO THE UNITS IN THE 56 DISTRICT OFFICES REPRESENTED BY NTEU. A
MULTI-DISTRICT AGREEMENT COVERING THE UNITS LOCATED IN THE 56 DISTRICT
OFFICES AND REPRESENTED BY NTEU WAS SIGNED ON APRIL 5, 1972 AND A
MULTI-CENTER AGREEMENT COVERING THE UNITS LOCATED IN THE SERVICE CENTERS
AND REPRESENTED BY NTEU WAS SIGNED ON APRIL 13, 1973.
DURING THE NEGOTIATIONS FOR THESE AGREEMENTS MATTERS INVOLVING TRAVEL
TERMS AND PROCEDURES FOR EMPLOYEES WERE DISCUSSED AND SOME WERE INCLUDED
IN THE NEGOTIATED AGREEMENTS. MANY OF THESE AGREED UPON TRAVEL TERMS
INCLUDED IN THE AGREEMENTS WERE AT VARIANCE WITH THE THEN EXISTING
TRAVEL REGULATIONS CONTAINED IN THE INTERNAL REVENUE SERVICE MANUAL
(IRM). IT WAS APPARENTLY UNDERSTOOD THAT WITH RESPECT TO THE EMPLOYEES
COVERED BY THE COLLECTIVE BARGAINING AGREEMENTS, THE TERMS OF THOSE
AGREEMENTS, AT LEAST CONCERNING TRAVEL, TOOK PRECEDENCE OVER THE TRAVEL
REGULATIONS CONTAINED IN THE IRM. WHERE THERE WAS NO CONTRACT TERM
COVERING A SPECIFIC AREA THE REGULATIONS IN THE IRM STILL CONTROLLED.
FURTHER, DURING THESE NEGOTIATIONS THE PARTIES BARGAINED ABOUT AND IN
SOME INSTANCE AGREED TO TERMS THAT WERE OUTSIDE THE NORMAL AUTHORITY OF
THE INDIVIDUAL DISTRICT DIRECTORS' OR OF THE SERVICE CENTER DIRECTORS'.
THE BARGAINING TOOK PLACE IN WASHINGTON. WITH RESPECT TO THE
MULTI-DISTRICT AGREEMENT, THE IRS TEAM THAT APPARENTLY NEGOTIATED AND
SIGNED THE CONTRACT, WAS COMPOSED OF TWO DISTRICT DIRECTORS, ONE
ASSISTANT DISTRICT DIRECTOR AND FOUR MEMBERS OF THE WASHINGTON STAFF.
SIMILARLY WITH RESPECT TO THE MULTI-CENTER AGREEMENT THE IRS TEAM WAS
COMPOSED OF THREE SERVICE CENTER DIRECTORS AND FOUR MEMBERS OF THE IRS
WASHINGTON STAFF.
IN THE MULTI-DISTRICT AGREEMENT ARTICLE 1. SECTION 1 A PROVIDES, IN
PART:
"THE FOLLOWING EMPLOYEES COMPRISE THE UNIT COVERED BY THIS AGREEMENT:
ALL PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES OF THE DISTRICTS
LISTED IN APPENDIX A, INCLUDING THOSE PROFESSIONAL EMPLOYEES WHO DID NOT
VOTE FOR INCLUSION WITH UNITS OF NON-PROFESSIONAL EMPLOYEES."
ARTICLE 1 SECTION 1. A. OF THE MULTI-CENTER AGREEMENT STATES, IN
PART:
"THE FOLLOWING EMPLOYEES COMPRISE THE UNIT COVERED BY THIS AGREEMENT:
ALL CERTIFIED UNITS OF PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES OF
THE CENTERS LISTED IN APPENDIX A, INCLUDING THOSE CERTIFIED UNITS OF
PROFESSIONAL EMPLOYEES WHO DID NOT VOTE FOR INCLUSION WITH UNITS OF
NON-PROFESSIONAL EMPLOYEES."
ON SEPTEMBER 7, 1973, IRS ISSUED MANUAL TRANSMITTAL 1763-22 WHICH
CONTAINED NEW TRAVEL REGULATIONS FOR ITS EMPLOYEES. THESE AMENDED AND
CHANGED THE TRAVEL REGULATIONS IN THE IRM AND WERE SUBSTANTIALLY
DIFFERENT, IN MANY RESPECTS FROM THOSE CONTAINED IN THE IRM AND IN THE
COLLECTIVE BARGAINING AGREEMENTS. THESE NEW REGULATIONS WERE NOT SHOWN
TO NTEU BEFORE THEY WERE ISSUED AND NTEU WAS IN NO WAY NOTIFIED OR
CONSULTED PRIOR TO THEIR ISSUANCE. THE IRS WITNESSES TESTIFIED THAT THE
NEW TRAVEL REGULATIONS WERE NOT INTENDED TO AND DID NOT CHANGE OR ALTER
THE TRAVEL PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENTS, WITH
RESPECT TO EMPLOYEES COVERED BY THE COLLECTIVE BARGAINING AGREEMENTS AND
SUCH EMPLOYEES WERE STILL COVERED BY THE TRAVEL PROVISIONS CONTAINED IN
THOSE AGREEMENTS. NO EVIDENCE CONTROVERTED THIS NOR WAS ANY SUBMITTED
TO SHOW THAT THESE NEW TRAVEL REGULATIONS WERE APPLIED TO SUCH EMPLOYEES
IN SUCH A WAY AS TO BE IN CONFLICT WITH THE COLLECTIVE BARGAINING
AGREEMENTS.
FURTHER, THE RECORD DOES NOT ESTABLISH THAT NTEU, AT ANY TIME
REQUESTED OF IRS, EITHER LOCALLY OR NATIONALLY, TO BARGAIN CONCERNING
THE IMPACT AND/OR IMPLEMENTATION OF THESE NEW TRAVEL REGULATIONS WITH
RESPECT TO THE EMPLOYEES COVERED BY THE MULTI-UNIT COLLECTIVE BARGAINING
AGREEMENTS.
NTEU WAS ORIGINALLY ACCORDED RECOGNITION IN A SERIES OF SEPARATE
UNITS LOCATED IN THE DISTRICT OFFICES AND SERVICE CENTERS. IN FACT
SEPARATE COLLECTIVE BARGAINING AGREEMENTS WERE ENTERED INTO BY NTEU AND
IRS COVERING CERTAIN OF THESE UNITS.
IN 1972, HOWEVER, NTEU AND IRS ENTERED INTO NEGOTIATIONS ON A
MULTI-UNIT BASIS. THE IRS BARGAINING COMMITTEE IN THE MULTI-DISTRICT
AGREEMENT WAS MADE UP OF DISTRICT OFFICE REPRESENTATIVES AND IRS
OFFICIALS FROM WASHINGTON. SIMILARLY THE IRS MULTI-CENTER CONTRACT
COMMITTEE WAS COMPOSED OF SERVICE CENTER REPRESENTATIVES AND IRS
OFFICIALS FROM WASHINGTON. DURING THEIR NEGOTIATIONS THE PARTIES
BARGAINED ABOUT, AND ULTIMATELY AGREED TO TERMS THAT WERE NORMALLY
OUTSIDE THE SCOPE OF THE AUTHORITY OF DISTRICT DIRECTORS' AND/OR THE
SERVICE-CENTER DIRECTORS. THE IRS REPRESENTATIVES HAD OBTAINED PRIOR
AUTHORITY FROM THE IRS COMMISSIONER TO BARGAIN ABOUT SUCH TERMS. BOTH
CONTRACTS, IN ARTICLE 1. SECTION 1. A., SPEAK IN TERMS OF THE "UNIT"
COVERED BY THE CONTRACT BEING COMPOSED OF ALL PERTINENT EMPLOYEES IN THE
DISTRICTS OR CENTERS LISTED IN THE APPENDIX ATTACHED TO EACH RESPECTIVE
CONTRACT. IN ALL THESE CIRCUMSTANCES IT SEEMS CLEAR THAT THE NTEU AND
IRS, BY THIS MULTI-UNIT BARGAINING, INTENDED TO MERGE THE SEPARATE UNITS
IN THE DISTRICT OFFICES INTO ONE NATIONWIDE DISTRICT OFFICE UNIT
COMPOSED OF THE SEPARATE UNITS THEN REPRESENTED BY NTEU AND TO MERGE THE
SEPARATE SERVICE CENTER UNITS INTO A NATIONWIDE SERVICE CENTER UNIT
COMPOSED OF THE SEPARATE UNITS REPRESENTED BY NTEU. HOWEVER, THE
ORIGINAL EXECUTIVE ORDER 11491 WAS SIGNED IN OCTOBER OF 1969 AND
PROVIDED THAT EXCLUSIVE RECOGNITION MUST BE OBTAINED BY A VOTE OF THE
EMPLOYEES IN THE APPROPRIATE UNIT. IT WAS AFTER EFFECTIVE DATE OF THIS
ORDER THAT NTEU FIRST TRIED TO MERGE THE UNITS BY MEANS OF THE CU
PETITIONS. IN DISMISSING THEM, IT WAS HELD THAT THE USE OF RO
PETITIONS, WHICH COULD PROVIDE FOR AN ELECTION, WOULD HAVE BEEN THE
APPROPRIATE PROCEDURE FOR ACHIEVING EXCLUSIVE RECOGNITION IN THESE NEW
NATIONWIDE UNITS. NTEU FAILED TO PURSUE SUCH PROCEDURES. RATHER THE
PARTIES THEMSELVES BY THE 1972 NEGOTIATIONS VOLUNTARILY DECIDED TO MERGE
THE SEPARATE UNITS INTO NEW NATIONWIDE UNITS WITHOUT UTILIZING ANY
ELECTIONS OR RO PETITIONS. TO PERMIT THIS WOULD BE TO PERMIT THE
PARTIES TO AVOID THE REASONING BEHIND THE DISMISSALS OF THE CU PETITIONS
AND TO FRUSTRATE THE PURPOSES OF SECTION 10 OF THE ORDER, WHICH PROVIDES
THE METHOD FOR OBTAINING EXCLUSIVE RECOGNITIONS. /4/
THEREFORE, DESPITE THE WISHES AND AIMS OF THE PARTIES, IT IS
CONCLUDED THAT NEITHER THE BARGAINING NOR THE MULTI-UNIT AGREEMENTS HAD
THE LEGAL EFFECT OF MERGING THE SEPARATE LOCAL UNITS AND GRANTING NTEU
EXCLUSIVE RECOGNITION IN SUCH NEW NATIONWIDE UNITS. THEREFORE NTEU ONLY
HAD EXCLUSIVE RECOGNITION FOR THE EMPLOYEES IN A SERIES OF SEPARATE
UNITS LOCATED IN 56 DISTRICT OFFICES AND 11 SERVICE CENTERS. FURTHER IT
MUST BE NOTED THAT NTEU NEITHER SOUGHT NOR OBTAINED NATIONAL
CONSULTATION RIGHTS.
MANUAL TRANSMITTAL 1763-22 WHICH CONTAINED THE NEW TRAVEL REGULATIONS
APPLIED TO ALL EMPLOYEES OF IRS, MANY OF WHOM WERE NOT IN THE UNITS
DESCRIBED ABOVE NOR REPRESENTED BY NTEU. MANY SUCH EMPLOYEES WERE
EITHER UNREPRESENTED OR REPRESENTED BY ANOTHER LABOR ORGANIZATION.
THESE NEW TRAVEL REGULATIONS CHANGED AND ALTERED THE TRAVEL REGULATIONS
AS THEN SET FORTH IN THE IRM. /5/
THE IRS WAS OBLIGED BY THE ORDER TO BARGAIN WITH NTEU ONLY AT THE
LEVEL NTEU HAD EXCLUSIVE RECOGNITION. IN THIS CASE THIS WAS AT THE
INDIVIDUAL DISTRICT OFFICE OR SERVICE CENTER LEVEL. THESE NEW TRAVEL
REGULATIONS WERE ISSUED BY IRS AT THE NATIONAL LEVEL AND APPLIED TO ALL
EMPLOYEES, INCLUDING MANY OUTSIDE OF THE UNITS REPRESENTED BY NTEU.
IN SUCH CIRCUMSTANCES, ABSENT SOME FORM OF NATIONAL RECOGNITION OR
NATIONAL CONSULTATION RIGHTS, IRS WAS NOT OBLIGED TO BARGAIN OR CONSULT
WITH NTEU CONCERNING THE ISSUANCE OF THESE NEW TRAVEL REGULATIONS. C.F.
U.S. MERCHANT MARINE ACADEMY, FLRC NO. 71 A-15 (NOVEMBER 20, 1972),
REPORT NO. 30; AND DEPARTMENT OF DEFENSE, AIR FORCE DEFENSE LANGUAGE
INSTITUTE, ENGLISH LANGUAGE BRANCH, LACKLAND AIR FORCE BASE, TEXAS, FLRC
NO. 73A-64 (OCTOBER 25, 1974), REPORT NO. 58. /6/
AS DESCRIBED ABOVE IRS HAD AN OBLIGATION TO BARGAIN WITH NTEU ONLY AT
THE INDIVIDUAL DISTRICT OFFICE AND SERVICE CENTER LEVEL. FURTHER, THE
ORDER, AS INTERPRETED BY THE ASSISTANT SECRETARY, IS CLEAR THAT AN
ACTIVITY IS OBLIGED TO BARGAIN ABOUT THE IMPLEMENTATION AND IMPACT OF A
PRIVILEGED CHANGE IN WORKING CONDITIONS ONLY WHEN A REQUEST OR DEMAND TO
SO BARGAIN IS MADE BY AN EXCLUSIVELY RECOGNIZED COLLECTIVE BARGAINING
REPRESENTATIVE. C.F. ALBANY METALLURGY RESEARCH CENTER, U.S. BUREAU OF
MINES, A/SLMR NO. 408; US ELECTRONICS COMMAND, FORT MONMOUTH, A/SLMR
NO. 395; U.S. DEPARTMENT OF INTERIOR, BUREAU OF INDIAN AFFAIRS, A/SLMR
NO. 341; FAA NATIONAL AVIATION FACILITIES EXPERIMENTAL CENTER, A/SLMR
NO. 329; AND DEPARTMENT OF THE NAVY, BUREAU OF MEDICINE AND SURGERY,
GREAT LAKES NAVAL HOSPITAL, A/SLMR NO. 289.
THE RECORD DOES NOT ESTABLISH THAT NTEU DEMANDED OR REQUESTED IRS TO
BARGAIN ABOUT THE IMPLEMENTATION OR IMPACT OF MANUAL TRANSMITTAL 1763-22
WITH RESPECT TO ANY UNIT LOCATED IN ANY IRS DISTRICT OFFICE OR SERVICE
CENTER. /6/ FURTHER, THE RECORD DOES NOT ESTABLISH THAT WHEN PRESENTED
WITH ANY SUCH DEMAND THE IRS, AT ANY LEVEL, REFUSED TO BARGAIN WITH NTEU
CONCERNING THE IMPACT AND IMPLEMENTATION OF MANUAL TRANSMITTAL 1763-22.
IT IS THEREFORE CONCLUDED THAT THE RECORD DOES NOT ESTABLISH THAT IRS
VIOLATED SECTIONS 19(A)(6) AND (1) OF THE ORDER BY REFUSING TO BARGAIN
WITH NTEU CONCERNING THE IMPLEMENTATION AND IMPACT OF MANUAL TRANSMITTAL
1763-22.
IN LIGHT OF ALL OF THE FOREGOING IT IS THEREFORE CONCLUDED THAT IRS
DID NOT ENGAGE IN CONDUCT WHICH VIOLATED SECTIONS 19(A)(1) AND (6) OF
THE ORDER.
IN VIEW OF THE FINDINGS AND CONCLUSIONS MADE ABOVE IT IS RECOMMENDED
THAT THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS DISMISS THE
SUBJECT COMPLAINT.
DATED: JUNE 4, 1975
WASHINGTON, D.C.
/1/ NTEU APPARENTLY ALSO REPRESENTED EMPLOYEES IN OTHER UNITS BUT
THEY WERE NOT RAISED AND ARE THEREFORE NOT RELEVANT TO THIS CASE. ALSO
IT SHOULD BE NOT THAT ORIGINALLY THE COMPLAINANT WAS KNOWN AS THE
NATIONAL ASSOCIATION OF INTERNAL REVENUE EMPLOYEES (NAIRE) BUT
SUBSEQUENTLY CHANGED ITS NAME TO NTEU. NTEU REPRESENTED PROFESSIONAL
AND NON-PROFESSIONAL EMPLOYEES IN 55 DISTRICT OFFICES AND
NON-PROFESSIONAL EMPLOYEES ONLY, IN ONE.
/2/ NTEU, BY THESE PETITIONS, ATTEMPTED TO MERGE ALL THE DISTRICT
OFFICE UNITS COMPOSED OF BOTH PROFESSIONAL AND NON-PROFESSIONAL
EMPLOYEES INTO ONE NATIONWIDE UNIT; TO MERGE THE DISTRICT OFFICE UNITS
COMPOSED SOLELY OF PROFESSIONAL EMPLOYEES INTO ANOTHER NATIONWIDE UNIT;
AND ALL THE SERVICE CENTER UNITS INTO ANOTHER NATIONWIDE UNIT.
/3/ AT NO TIME HAS NTEU SOUGHT NATIONAL CONSULTATION RIGHTS WITH
RESPECT TO THE EMPLOYEES IT REPRESENTED.
/4/ THE REPORT AND RECOMMENDATION OF THE FLRC ON THE AMENDMENT OF
E.O. 11491, AS AMENDED, ON PAGE 20 RECOMMENDED THAT SECTION 10(A) OF THE
ORDER BE AMENDED TO PERMIT SUCH A VOLUNTARY CONSOLIDATION OF UNITS, AND
EXECUTIVE ORDER 11838, SIGNED ON FEBRUARY 5, 1975, FOLLOWED THAT
RECOMMENDATION. THUS SECTION 10(A) OF THE ORDER HAS BEEN AMENDED TO
PERMIT CONSOLIDATION OF UNITS BY THE VOLUNTARY ACTION OF THE PARTNER.
/5/ IT MUST BE NOTED THAT THEY DID NOT APPLY SO AS TO CHANGE ANY OF
THE TRAVEL TERMS OF THE MULTI-UNIT COLLECTIVE BARGAINING AGREEMENTS.
/6/ SINCE THESE NEW TRAVEL REGULATIONS DID NOT ALTER OR CHANGE THE
TRAVEL TERMS OF THE MULTI-UNIT AGREEMENTS, IT NEED NOT BE DECIDED
WHETHER IRS WOULD HAVE HAD TO BARGAIN TO ALL EMPLOYEES AND WOULD HAVE
ALTERED OR CHANGED THE TRAVEL PROVISIONS OF THESE COLLECTIVE BARGAINING
AGREEMENTS. HOWEVER, AGAIN, ABSENT SOME FORM OF NATIONAL RECOGNITION OR
NATIONAL CONSULTATION RIGHTS, I WOULD BE CONSTRAINED TO FIND THAT THE
REASONING CONTAINED BY THE MERCHANT MARINE ACADEMY CASE, SUPRA AND THE
LACKLAND AIR FORCE BASE CASE, SUPRA, INDICATED THAT IRS WOULD HAVE NO
OUT OBLIGATION TO BARGAIN OR CONSULT WITH NTEU.
IN FACT THE RECORD DOES NOT ESTABLISH SUCH A DEMAND WITH RESPECT TO
ANY UNIT OR AT ANY LEVEL.
5 A/SLMR 549; P. 560; CASE NO. 42-2574(RO); AUGUST 28, 1975.
DEPARTMENT OF THE AIR FORCE,
31ST COMBAT SUPPORT GROUP,
HOMESTEAD AIR FORCE BASE,
HOMESTEAD, FLORIDA
A/SLMR NO. 549
THE PETITIONER, LOCAL F-182, INTERNATIONAL ASSOCIATION OF
FIREFIGHTERS (IAFF), SOUGHT AN ELECTION IN A UNIT OF ALL NONSUPERVISORY,
NONPROFESSIONAL GENERAL SCHEDULE FIREFIGHTERS, CREW CHIEFS, AND FIRE
INSPECTORS EMPLOYED AT AND BY HOMESTEAD AIR FORCE BASE IN FLORIDA.
THE RECORD EVIDENCE ESTABLISHED THAT, AT THE TIME THE IAFF FILED ITS
PETITION IN THE INSTANT CASE, THE ACTIVITY AND THE INTERVENOR, LOCAL
1167, NATIONAL FEDERATION OF FEDERAL EMPLOYEES (NFFE), WERE PARTIES TO A
NEGOTIATED AGREEMENT ENCOMPASSING A UNIT OF "ALL AIR FORCE CIVILIAN
EMPLOYEES SERVICED BY THE CENTRAL CIVILIAN PERSONNEL OFFICE AT HOMESTEAD
AFB, FLORIDA . . ." THE EVIDENCE ESTABLISHED THAT AT THE TIME THE NFFE
WAS GRANTED EXCLUSIVE RECOGNITION IN 1967 THREE NONSUPERVISORY, CIVILIAN
FIREFIGHTER POSITIONS WERE OCCUPIED; THAT AT THE TIME OF THE HEARING 32
CIVILIAN FIREFIGHTER POSITIONS WERE OCCUPIED, INCLUDING 5 CIVILIAN
SUPERVISORS' POSITIONS; AND THAT THE CIVILIAN FIREFIGHTERS WERE
SERVICED BY THE SAME CENTRAL CIVILIAN PERSONNEL OFFICE AS THE OTHER
CIVILIAN EMPLOYEES IN THE BARGAINING UNIT. FURTHER, NO RECORD EVIDENCE
WAS PRESENTED THAT THE PARTIES SOUGHT OR INTENDED, AT ANY TIME DURING
THEIR BARGAINING HISTORY, TO EXCLUDE THE CIVILIAN FIREFIGHTER
CLASSIFICATIONS FROM THE BASE-WIDE UNIT.
BASED ON THESE CONSIDERATIONS, THE ASSISTANT SECRETARY FOUND THAT THE
UNIT OF FIREFIGHTERS SOUGHT BY THE IAFF WAS COVERED BY A CURRENT
NEGOTIATED AGREEMENT AND THAT, THEREFORE, THE PETITION HEREIN WAS FILED
UNTIMELY. ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE
PETITION BE DISMISSED.
DEPARTMENT OF THE AIR FORCE,
31ST COMBAT SUPPORT GROUP
HOMESTEAD AIR FORCE BASE,
HOMESTEAD, FLORIDA
AND
LOCAL F-182, INTERNATIONAL
ASSOCIATION OF FIREFIGHTERS /1/
AND
LOCAL 1167, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER HAZEL M. ELLISON.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING A BRIEF FILED BY THE
INTERVENOR, LOCAL 1167, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, HEREIN
CALLED THE NFFE, /2/ THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE IAFF SEEKS AN ELECTION IN THE FOLLOWING UNIT:
ALL NON-SUPERVISORY, GS FIREFIGHTERS, CREW CHIEFS, AND FIRE
INSPECTORS EMPLOYED AT AND BY
HOMESTEAD AIR FORCE BASE, FLORIDA, EXCLUDING ALL SUPERVISORS,
PROFESSIONALS, GUARDS,
MANAGEMENT OFFICIALS, AND EMPLOYEES ENGAGED IN FEDERAL PERSONNEL
WORK, EXCEPT IN A PURELY
CLERICAL CAPACITY WITHIN THE MEANING OF THE ORDER.
THE NFFE, WHICH HAD BEEN GRANTED EXCLUSIVE RECOGNITION IN JULY 1967,
FOR A UNIT OF ". . . ALL AIR FORCE CIVILIAN EMPLOYEES SERVICED BY THE
CENTRAL CIVILIAN PERSONNEL OFFICE AT HOMESTEAD AFB, FLORIDA . . .", AND
THE ACTIVITY CONTEND THAT AT THE TIME THE IAFF FILED THE INSTANT
PETITION THE EMPLOYEES SOUGHT WERE COVERED BY AN EXISTING NEGOTIATED
AGREEMENT WHICH CONSTITUTED A BAR TO THE PETITION. /3/ THE IAFF
ASSERTS, IN SUBSTANCE, THAT THE FIREFIGHTERS CLASSIFICATION IS NOT PART
OF THE EXISTING UNIT BUT IS, IN EFFECT, A NEW EMPLOYEE CLASSIFICATION
WHICH IS UNREPRESENTED.
THE EMPLOYEES IN THE CLAIMED UNIT ARE IN THE FIRE PROTECTION BRANCH--
ONE OF SEVEN BRANCHES OF THE 31ST CIVIL ENGINEERING SQUADRON. THE
SQUADRON PLANS, DIRECTS, SUPERVISES, AND COORDINATES ALL CIVIL
ENGINEERING ACTIVITIES OF THE 31ST COMBAT SUPPORT GROUP WHICH, IN TURN,
IS RESPONSIBLE FOR PROVIDING THE OVERALL COMMAND WITH DIRECTION, PLANS,
AND STAFF SUPERVISION IN THE FULFILLMENT OF THE MISSION OF 31ST TACTICAL
FIGHTER WING LOCATED AT HOMESTEAD AIR FORCE BASE.
THE FIRE PROTECTION BRANCH ADMINISTERS AND PERFORMS THE FIRE
PROTECTION DUTIES AND RESPONSIBILITIES OF THE 31ST CIVIL ENGINEERING
SQUADRON. THE SUPERVISORY COMPLEMENT OF THE BRANCH INCLUDES ONE FIRE
CHIEF, FIVE ASSISTANT FIRE CHIEFS, AND FOUR STATION CHIEFS (TWO ON EACH
SHIFT). AT THE TIME OF THE HEARING IN THIS MATTER, THE COMPLEMENT OF
THE BRANCH INCLUDED 55 MILITARY INCUMBENTS AND 32 CIVILIAN INCUMBENTS, 5
OF WHOM WERE CIVILIAN SUPERVISORS.
THE RECORD INDICATES THAT THE FIRE PROTECTION BRANCH BEGAN, DURING
THE FIRST QUARTER OF FISCAL YEAR 1974 (JULY THROUGH SEPTEMBER 1973), TO
CONVERT GRADUALLY FROM AN ESSENTIALLY MILITARY TO A CIVILIAN OPERATION.
HOWEVER, THE EVIDENCE ESTABLISHES THAT AT THE TIME THE NFFE WAS GRANTED
EXCLUSIVE RECOGNITION IN 1967 THREE NONSUPERVISORY, CIVILIAN FIREFIGHTER
POSITIONS WERE OCCUPIED. FURTHER, THE RECORD SHOWS THAT CIVILIAN
FIREFIGHTERS ARE SERVICED BY THE SAME CENTRAL CIVILIAN PERSONNEL OFFICE
AS ARE THE OTHER EMPLOYEES IN THE BARGAINING UNIT, THAT NEW CIVILIAN
FIREFIGHTERS EMPLOYED BY THE ACTIVITY ARE ADVISED OF THE EXCLUSIVE
REPRESENTATIVE STATUS OF THE NFFE DURING THEIR INITIAL ORIENTATION, AND
THAT THE PARTIES' NEGOTIATED AGREEMENT IS POSTED ON BULLETIN BOARDS IN
WORK AREAS OF THE FIRE PROTECTION BRANCH. MOREOVER, THERE IS NO RECORD
EVIDENCE THAT THE ACTIVITY OR THE NFFE SOUGHT OR INTENDED, AT ANY TIME
DURING THEIR BARGAINING HISTORY, TO EXCLUDE THE CIVILIAN FIREFIGHTER
CLASSIFICATIONS FROM THE BASE-WIDE UNIT.
BASED ON THE FOREGOING CIRCUMSTANCES, I FIND THAT THE EMPLOYEES
SOUGHT BY THE IAFF ARE PART OF THE EXISTING UNIT AT THE ACTIVITY COVERED
BY A NEGOTIATED AGREEMENT AND THAT THE INSTANT PETITION, THEREFORE, WAS
FILED UNTIMELY /4/ UNDER SECTION 202.3(C) OF THE ASSISTANT SECRETARY'S
REGULATIONS. /5/ THUS, IN MY VIEW, THE PARTIES' NEGOTIATED AGREEMENT,
WHICH COVERED ALL AIR FORCE CIVILIAN EMPLOYEES SERVICED BY THE CENTRAL
CIVILIAN PERSONNEL OFFICE AT HOMESTEAD AIR FORCE BASE, FLORIDA,
ENCOMPASSED THE EMPLOYEES IN THE CLAIMED UNIT AND, THEREFORE,
CONSTITUTED A BAR TO THE INSTANT PETITION. ACCORDINGLY, I FIND THAT THE
DISMISSAL OF THE INSTANT PETITION IS WARRANTED.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 42-2574(RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
AUGUST 28, 1975
/1/ THE NAME OF THE PETITIONER, LOCAL F-182, INTERNATIONAL
ASSOCIATION OF FIREFIGHTERS, HEREIN CALLED THE IAFF, APPEARS AS
CORRECTED AT THE HEARING.
/2/ THE ACTIVITY FILED AN UNTIMELY BRIEF WHICH WAS NOT CONSIDERED.
/3/ THE IAFF FILED ITS PETITION HEREIN ON AUGUST 23, 1974. THE
ACTIVITY AND THE NFFE WERE PARTIES TO A NEGOTIATED AGREEMENT WHICH HAD
BEEN APPROVED ON APRIL 4, 1972. THE TERM OF THE AGREEMENT WAS FOR TWO
YEARS WITH PROVISION FOR AUTOMATIC RENEWAL. THE RECORD EVIDENCE
INDICATES THAT THE AGREEMENT WAS, IN FACT, AUTOMATICALLY RENEWED FOR ONE
YEAR.
/4/ SEE UNITED STATES DEPARTMENT OF THE AIR FORCE, DAVIS-MONTHAN AIR
FORCE BASE, ARIZONA, A/SLMR NO. 462, FLRC NO. 74A-92. I FIND ALSO THAT
THE EVIDENCE DID NOT ESTABLISH THAT THE EMPLOYEES IN THE CLAIMED UNIT
HAD BEEN DENIED EFFECTIVE AND FAIR REPRESENTATION BY THE NFFE.
/5/ SECTION 202.3(C) PROVIDES, IN PERTINENT PART, THAT "WHEN AN
AGREEMENT COVERING A CLAIMED UNIT HAS BEEN SIGNED AND DATED BY THE
ACTIVITY AND THE INCUMBENT EXCLUSIVE REPRESENTATIVE, A PETITION FOR
EXCLUSIVE RECOGNITION OR OTHER ELECTION PETITION WILL BE CONSIDERED
TIMELY WHEN FILED AS FOLLOWS: (1) NOT MORE THAN NINETY (90) DAYS AND
NOT LESS THAN SIXTY (60) DAYS PRIOR TO THE TERMINAL DATE OF AN AGREEMENT
HAVING A TERM OF THREE (3) YEARS OR LESS FROM THE DATE IT WAS SIGNED AND
DATED . . ."
5 A/SLMR 548; P. 554; CASE NO. 22-5518(CA); AUGUST 28, 1975.
DEPARTMENT OF THE NAVY,
NORFOLK NAVAL SHIPYARD
A/SLMR NO. 548
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO,
(COMPLAINANT) ALLEGING ESSENTIALLY THAT THE RESPONDENT VIOLATED SECTION
19(A)(1), (2), AND (5) OF THE ORDER BECAUSE OF ITS FAILURE TO ALLOW THE
COMPLAINANT TO REPRESENT A PROBATIONARY EMPLOYEE AT A DISCUSSION WHERE
HIS RETENTION IN EMPLOYMENT WAS BEING CONSIDERED.
THE ADMINISTRATIVE LAW JUDGE DISMISSED THE COMPLAINT IN ITS ENTIRETY
FINDING THAT ANY DISCRIMINATION INVOLVED WAS WITH REGARD TO THE
EMPLOYEE'S STATUS AS A PROBATIONARY EMPLOYEE RATHER THAN BEING BASED ON,
OR MOTIVATED BY, MEMBERSHIP ACTIVITY OR SYMPATHY WITH REGARD TO THE
COMPLAINANT AND THAT AN OFFICIAL OF THE COMPLAINANT WAS ALLOWED TO
PARTICIPATE FREELY IN THE DISCUSSION IN SPITE OF THE RESPONDENT'S
POSITION THAT THE OFFICIAL BE PRESENT ONLY AS AN OBSERVER.
NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED WITH RESPECT TO THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATION, THE ASSISTANT
SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE
ADMINISTRATIVE LAW JUDGE AND ORDERED THAT THE COMPLAINT BE DISMISSED IN
ITS ENTIRETY.
DEPARTMENT OF THE NAVY,
NORFOLD NAVAL SHIPYARD
AND
TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO
ON MAY 29, 1975, ADMINISTRATIVE LAW JUDGE MILTON KRAMER ISSUED HIS
REPORT AND RECOMMENDATION IN THE ABOVE ENTITLED PROCEEDING, FINDING THAT
THE RESPONDENT HAD NOT ENGAGED IN THE ALLEGED UNFAIR LABOR PRACTICES AND
RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY. NO
EXCEPTIONS WERE FILED WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S
REPORT AND RECOMMENDATION.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS.
/1/
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 22-5518(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
AUGUST 28, 1975
/1/ IN REACHING THE ABOVE DISPOSITION, IT WAS NOTED THAT, ALTHOUGH
THE REPRESENTATIVE OF THE PROBATIONARY EMPLOYEE IN QUESTION WAS INFORMED
INITIALLY THAT HE COULD REMAIN AT THE MEETING INVOLVED ONLY AS AN
"OBSERVER," HE, IN FACT, AS FOUND BY THE ADMINISTRATIVE LAW JUDGE," . .
. PARTICIPATED IN THE DISCUSSION WHEN HE WANTED TO AND WAS NOT STOPPED"
BY MANAGEMENT. CF. FEDERAL AVIATION ADMINISTRATION, MUSKEGON AIR
TRAFFIC CONTROL TOWER, A/SLMR NO. 534.
IN THE MATTER OF
DEPARTMENT OF THE NAVY
NORFOLK NAVAL SHIPYARD
AND
TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO
STEPHAN L. WHITEHEAD, PRESIDENT
TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL
4415 COUNTY STREET
NORFOLK, VIRGINIA 23707
JAMES C. CAUSEY, ESQ.
LABOR RELATIONS ADVISOR
OFFICE OF CIVILIAN MANPOWER MANAGEMENT
DEPARTMENT OF THE NAVY
WASHINGTON, D.C.
BEFORE: MILTON KRAMER
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491 AS AMENDED. IT WAS
INITIATED BY A COMPLAINT DATED AUGUST 29, 1974 AND FILED AUGUST 30,
1974. THE COMPLAINT ALLEGED THAT ON JULY 1, 1974 WILLIAM E. COLEY,
EMPLOYED AS A WELDER IN HIS PROBATIONARY FIRST YEAR, AT A MEETING WITH
THE SUPERINTENDENT OF HIS SHOP CONCERNING HIS RETENTION IN EMPLOYMENT,
WAS TOLD HE WAS NOT PERMITTED REPRESENTATION BY THE COMPLAINANT, AND
THAT HIS EMPLOYMENT WAS TERMINATED FOUR DAYS LATER. THIS WAS ALLEGED TO
CONSTITUTE A VIOLATION OF SECTIONS 19(A)(1), (2), AND (5) OF THE
EXECUTIVE ORDER. (THE COMPLAINT ALLEGED ADDITIONAL CONDUCT ALLEGEDLY IN
VIOLATION OF THOSE PROVISIONS OF THE EXECUTIVE ORDER /1/ , BUT THIS
ADDITIONAL ALLEGATION WAS WITHDRAWN ON NOVEMBER 5, 1974 /2/ , AND THE
WITHDRAWAL APPROVED BY THE ASSISTANT REGIONAL DIRECTOR ON NOVEMBER 11,
1974. /3/ ). UNDER DATE OF OCTOBER 4, 1974 THE RESPONDENT FILED A
RESPONSE TO THE COMPLAINT. /4/
ON NOVEMBER 18, 1974 THE ACTING ASSISTANT REGIONAL DIRECTOR ISSUED A
NOTICE OF HEARING TO BE HELD ON JANUARY 10, 1975 IN NORFOLK, VIRGINIA.
ON DECEMBER 18, 1974 THE ASSISTANT REGIONAL DIRECTOR ISSUED AN ORDER
RESCHEDULING HEARING CONTINUING THE HEARING TO FEBRUARY 19, 1975. A
HEARING WAS HELD BEFORE ME ON FEBRUARY 19, 1975. THE COMPLAINANT WAS
REPRESENTED BY ITS PRESIDENT AND THE RESPONDENT WAS REPRESENTED BY A
LABOR RELATIONS ADVISOR OF THE LABOR DISPUTES AND APPEALS SECTION OF THE
OFFICE OF CIVILIAN MANPOWER MANAGEMENT OF THE DEPARTMENT OF THE NAVY.
AT THE CONCLUSION OF THE ORAL HEARING THE TIME FOR FILING BRIEFS WAS
EXTENDED TO MARCH 25, 1975. BOTH PARTIES FILED TIMELY BRIEFS.
ALSO AT THE CLOSE OF THE ORAL HEARING ON FEBRUARY 19, 1975, THE ORAL
HEARING WAS CLOSED BUT THE RECORD KEPT OPEN TO PERMIT THE RESPONDENT TO
OFFER AN EXHIBIT NOT YET AVAILABLE WHICH WAS TO BE IDENTIFIED AS EXHIBIT
R-2. ON FEBRUARY 20, 1975 THE RESPONDENT TENDERED THE EXHIBIT WHICH WAS
A DECISION OF AN ARBITRATOR IN A MATTER RELATED TO A MOTION TO DISMISS
MADE BY THE RESPONDENT. /5/ ON FEBRUARY 20, 1975 I REJECTED THE
TENDERED EXHIBIT R-2, FOR THE PURPOSE FOR WHICH IT WAS OFFERED, ON THE
GROUND THAT UNDER THE THIRD SENTENCE OF SECTION 19(D) OF THE EXECUTIVE
ORDER GRIEVANCE DECISIONS ARE NOT TO BE CONSTRUED AS PRECEDENTS IN
UNFAIR LABOR PRACTICE PROCEEDINGS. I ACCEPTED R-2 IN EVIDENCE FOR THE
LIMITED PURPOSE OF SHOWING THAT, PRIOR TO THE COMMENCEMENT OF THIS
PROCEEDING, THE COMPLAINANT HAD PURSUED BY WAY OF THE GRIEVANCE
PROCEDURE ON BEHALF OF ANOTHER EMPLOYEE, M. L. MONTGOMERY, THE SAME
REMEDY AS IS SOUGHT HERE ON BEHALF OF WILLIAM E. COLEY THROUGH THE
UNFAIR LABOR PRACTICE PROCEDURE.
THE COMPLAINANT IS THE CERTIFIED EXCLUSIVE REPRESENTATIVE OF CERTAIN
CLASSES OR CRAFTS OF EMPLOYEES OF THE RESPONDENT. ONE OF THE CRAFTS
CONSISTS OF WELDERS. WILLIAM COLEY WAS EMPLOYED BY RESPONDENT ON JULY
9, 1973 AT GRADE WG-8 AS A WELDER AND AT ALL TIMES INVOLVED HEREIN WAS
IN HIS PROBATIONARY FIRST YEAR OF EMPLOYMENT. THE RESPONDENT EMPLOYS
ABOUT 50 WELDERS AT GRADE WG-8 AND ABOUT 375 AT GRADE WG-10. WELDERS
EMPLOYED AT THE WG-10 RATE ARE EXPECTED TO HAVE MORE KNOWLEDGE OF AND
HIGHER SKILLS IN WELDING THAN THOSE EMPLOYED AT THE WG-8 RATE. ALMOST
HALF THE WG-8 WELDERS WERE IN THEIR PROBATIONARY FIRST YEAR OF
EMPLOYMENT.
ON JULY 1, 1974, EIGHT DAYS BEFORE COLEY'S YEAR OF PROBATION WOULD
HAVE EXPIRED, HAROLD P. ROGERS, THE PRODUCTION SUPERINTENDENT OF THE
WELDING SHOP, HAD A MEETING WITH COLEY TO DETERMINE WHETHER TO RECOMMEND
THE TERMINATION OF COLEY'S EMPLOYMENT. ROGERS HAD RECEIVED A MEMORANDUM
FROM ONE DICKSON, WHO AT THE TIME WAS COLEY'S IMMEDIATE SUPERVISOR,
WHICH WAS CRITICAL OF COLEY'S WORK. PRESENT ALSO WERE EDGAR L. LANE,
JR., THE ADMINISTRATIVE OFFICER OF RESPONDENT'S PERSONNEL DIVISION, AND
TERRY GOLDFARB, THEN THE PRESIDENT AND CHIEF STEWARD OF LOCAL 1481, A
WELDERS' AND CUTTERS' LOCAL OF THE INTERNATIONAL ASSOCIATION OF
MACHINISTS, ONE OF THE COMPONENTS OF THE COMPLAINANT. ROGERS HAD
INVITED GOLDFARB TO THE MEETING BECAUSE HE HAD BEEN TOLD BY THE
PERSONNEL OFFICE THAT A REPRESENTATIVE OF THE METAL TRADES COUNCIL
SHOULD BE GIVEN THE OPPORTUNITY TO HAVE A REPRESENTATIVE PRESENT AT SUCH
A MEETING AS AN OBSERVER. /6/
AT THE BEGINNING OF THE MEETING ROGERS AND LANE SAID THAT COLEY WAS
NOT ENTITLED TO UNION REPRESENTATION AT THE MEETING BUT THAT THE COUNCIL
WOULD BE PERMITTED TO HAVE A REPRESENTATIVE PRESENT AS AN OBSERVER.
HOWEVER, GOLDFARB DID SPEAK UP AT VARIOUS POINTS AND WAS NOT STOPPED AND
WAS PERMITTED TO SAY WHAT HE THOUGHT ALTHOUGH APPARENTLY WITHOUT
PERSUASIVE EFFECT. ROGERS READ ALOUD THE MEMORANDUM CONCERNING COLEY
THAT HE HAD RECEIVED FROM DICKSON, COLEY'S THEN IMMEDIATE SUPERVISOR.
COLEY MENTIONED SOME PERSONAL DIFFICULTIES HE HAD HAD WITH DICKSON, AND
GOLDFARB PROTESTED THAT MOST OF THE DEFICIENCIES THAT DICKSON RELATED
CONCERNING COLEY RELATED TO WORK THAT SHOULD NOT HAVE BEEN ASSIGNED TO
OR EXPECTED OF A WG-8 WELDER AND THAT IF COLEY WERE TO BE EXPECTED TO
PERFORM SUCH WORK HE SHOULD HAVE BEEN A WG-10. /7/
AT THE CONCLUSION OF THE MEETING ROGERS STATED THAT HE INTENDED TO
RECOMMEND THAT COLEY'S EMPLOYMENT BE TERMINATED BUT WOULD THINK ABOUT IT
OVERNIGHT AND IF HE CHANGED HIS MIND HE WOULD TELL COLEY AND GOLDFARB
THE NEXT DAY. HE DID NOT CHANGE HIS MIND AND COLEY'S EMPLOYMENT WAS
TERMINATED EFFECTIVE JULY 5, 1974, FOUR DAYS BEFORE HIS PROBATIONARY
APPOINTMENT WOULD HAVE BECOME PERMANENT. (THERE WERE OTHER SUBSEQUENT
PROCEEDINGS RESCINDING THIS ACTION BUT THOSE SUBSEQUENT PROCEEDINGS WERE
NOT UNDER THE EXECUTIVE ORDER AND ARE IRRELEVANT TO A CONSIDERATION OF
THIS CASE.)
THE CURRENT "NEGOTIATED AGREEMENT" BETWEEN THE PARTIES WAS SIGNED BY
THE PARTIES ON AUGUST 22, 1973, WAS APPROVED ON SEPTEMBER 24, 1973, AND
BY AGREEMENT OF THE PARTIES BECAME EFFECTIVE OCTOBER 9, 1973. ARTICLE
31, SECTION 2 OF THE AGREEMENT /8/ PROVIDES FOR A PRE-ACTION
INVESTIGATION "WHEN IT IS DETERMINED BY THE SUPERVISOR HAVING AUTHORITY
THAT FORMAL DISCIPLINE OR ADVERSE ACTION MAY BE NECESSARY". IT DOES NOT
DISTINGUISH BETWEEN PROBATIONARY AND OTHER EMPLOYEES IN THIS RESPECT,
ALTHOUGH IT DOES MAKE SUCH DISTINCTION WITH RESPECT TO OTHER STEPS IN
THE DISCIPLINE PROCEDURE. /9/ ON AUGUST 16, 1973 THE RESPONDENT HAD
ISSUED INSTRUCTION 12300.1. IT PROVIDES FOR TERMINATION OF PROBATIONARY
EMPLOYEES BY THE BRANCH OR SHOP HEAD FOR CONDUCT AFTER APPOINTMENT
WITHOUT MENTION OF ANY PRE-ACTION INVESTIGATION.
THE RESPONDENT TAKES THE POSITION THAT THE ISSUES IN THIS CASE ARE
THE SAME AS THE ISSUES IN DEPARTMENT OF DEFENSE, U.S. NAVY, NORFOLK
NAVAL SHIPYARD AND TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES
COUNCIL, AFL-CIO, CASE NO. 22-5283(CA). THE COMPLAINANT ASSERTS THAT
SOME OF THE ISSUES ARE DIFFERENT. MOST OF THE ISSUES IN THAT CASE ARE
THE SAME AS IN THIS CASE BUT SOME ARE DIFFERENT. THE HEARING IN THAT
CASE WAS HELD BY ME IN AUGUST AND SEPTEMBER 1974 AND MY DECISION WAS
ISSUED MARCH 4, 1975. THUS THAT CASE WAS SUB JUDICE BEFORE THE
ADMINISTRATIVE LAW JUDGE AT THE TIME OF THE HEARING IN THIS CASE. THAT
CASE HAS NOT YET BEEN CONSIDERED BY THE ASSISTANT SECRETARY. WITH
RESPECT TO SOME MATTERS I WILL REPEAT, MUTATIS MUTANDIS, OR PARAPHRASE,
WHAT I SAID IN THAT CASE.
I. WHETHER THE COMPLAINANT IS PURSUING BOTH THE GRIEVANCE PROCEDURE
AND AN UNFAIR LABOR PRACTICE OVER THE SAME ISSUE.
THE SECOND SENTENCE OF SECTION 19(D) OF THE EXECUTIVE ORDER PROVIDES:
"ISSUES WHICH CAN BE RAISED UNDER A GRIEVANCE PROCEDURE MAY, IN THE
DISCRETION OF THE
AGGRIEVED PARTY, BE RAISED UNDER THAT PROCEDURE OR THE COMPLAINT
PROCEDURE UNDER THIS SECTION,
BUT NOT UNDER BOTH PROCEDURES."
ON APRIL 16, 1974, THE COMPLAINANT FILED A GRIEVANCE UNDER THE
CONTRACT GRIEVANCE PROCEDURE. THE GRIEVANCE AROSE BECAUSE AN EMPLOYEE,
M. L. MONTGOMERY, A PROBATIONARY EMPLOYEE IN ANOTHER SHOP OF THE
RESPONDENT, SHOP 51, WAS CALLED IN TO SEE THE SHOP HEAD WHO WAS
CONTEMPLATING SEPARATING MONTGOMERY FROM HIS EMPLOYMENT. MONTGOMERY
ASKED FOR A UNION REPRESENTATIVE AND THE SHOP HEAD TOLD A SHOP STEWARD,
WHO WAS PRESENT, THAT AS A PROBATIONARY EMPLOYEE MONTGOMERY WOULD NOT BE
PERMITTED TO HAVE UNION REPRESENTATION AT THE DISCUSSION. THE MERITS OF
THE PROPRIETY OF THE PROCEDURE FOLLOWED IN THE MONTGOMERY CASE ARE THE
SAME AS THE MERITS OF THE PROPRIETY OF THE PROCEDURE FOLLOWED IN THIS
CASE.
THE RESPONDENT ARGUES THAT: THE MONTGOMERY GRIEVANCE RAISED THE
"ISSUE" OF WHETHER A PROBATIONARY EMPLOYEE IS ENTITLED TO REPRESENTATION
BY THE COMPLAINANT AT A DISCUSSION WITH THE DECIDING OFFICIAL ON WHETHER
HIS PROBATIONARY APPOINTMENT SHOULD BE TERMINATED AND THE "ISSUE" OF
WHETHER THE COMPLAINANT HAS A RIGHT TO BE "REPRESENTED" AT SUCH
DISCUSSION; THE SAME ISSUED ARE RAISED IN THIS PROCEEDING UNDER THE
UNFAIR LABOR PRACTICE PROCEDURE OF THE EXECUTIVE ORDER BY THE COMPLAINT
FILED LATER IN THIS CASE; ERGO, THE COMPLAINANT MADE AN IRREVOCABLE
ELECTION IN THE MONTGOMERY INSTANCE TO PURSUE THE CONTRACT GRIEVANCE
PROCEDURE FOR THE RESOLUTION OF SUCH ISSUES AND IS PRECLUDED BY THE
ABOVE-QUOTED PROVISION OF SECTION 19(D) OF THE EXECUTIVE ORDER FROM
PURSUING THE UNFAIR LABOR PRACTICE PROCEDURE OF THE EXECUTIVE ORDER WITH
RESPECT TO THIS CASE AND CASE NO. 22-5283. I CANNOT SUBSCRIBE TO SUCH
VERBAL LITERALISM.
TO BE SURE, THE SECOND SENTENCE OF SECTION 19(D) LITERALLY SPEAKS IN
TERMS OF "ISSUES" THAT MAY BE RAISED UNDER THE GRIEVANCE PROCEDURE OR
THE UNFAIR LABOR PRACTICE PROCEDURE BUT NOT BOTH. THE RESPONDENT
CANDIDLY CONCEDES THAT ITS POSITION IS PREDICATED ON SECTION 19(D) BEING
"ISSUE ORIENTED" AND NOT "INCIDENT ORIENTED".
IT IS ANTITHETICAL TO THE COMMON-LAW TRADITION TO FIND THAT ONE WHO
IS WRONGED (ASSUMING HE WAS WRONGED) AND PURSUES ONE REMEDY AGAINST THE
WRONGDOER FOR THAT INCIDENT IS THEREAFTER BOUND TO PURSUE THE SAME
REMEDY AGAINST THE SAME WRONGDOER IF THE SAME WRONG SHOULD AGAIN BE
COMMITTED IN ANOTHER INCIDENT. THE TERMINATION OF THE APPOINTMENT OF
MONTGOMERY DOES NOT RAISE THE SAME ISSUES IN A REALISTIC SENSE, OR MAY
NOT, AS THE TERMINATION OF THE APPOINTMENT OF COLEY.
I CONCLUDE THAT THE SECOND SENTENCE OF SECTION 19(D) REFERS NOT TO
ISSUES IN THE ABSTRACT BUT TO ISSUES IN THE SAME INCIDENT. ACCORDINGLY,
PRESENTING THE ISSUES BY THE GRIEVANCE PROCEDURE IN THE MONTGOMERY CASE
DID NOT PRECLUDE THE COMPLAINANT FROM PRESENTING THE SAME ISSUES IN THIS
CASE IN AN UNFAIR LABOR PRACTICE PROCEEDING.
II. WHETHER THE POLICY EXPRESSED IN REPORT NO. 49 PRECLUDES
ENTERTAINMENT OF THE COMPLAINT.
IN REPORT NO. 49, ISSUED FEBRUARY 15, 1972, THE ASSISTANT SECRETARY
SAID THAT:
". . . WHERE A COMPLAINT ALLEGES AS AN UNFAIR LABOR PRACTICE, A
DISAGREEMENT OVER THE
INTERPRETATION OF AN EXISTING COLLECTIVE BARGAINING AGREEMENT WHICH
PROVIDES A PROCEDURE FOR
RESOLVING THE DISAGREEMENT, THE ASSISTANT SECRETARY WILL NOT CONSIDER
THE PROBLEM IN THE
CONTEXT OF AN UNFAIR LABOR PRACTICE BUT WILL LEAVE THE PARTIES TO
THEIR REMEDIES UNDER THEIR
COLLECTIVE BARGAINING AGREEMENT."
THE RESPONDENT ARGUES THAT SINCE THE COLLECTIVE AGREEMENT PROVIDES A
PROCEDURE FOR RESOLVING THE BASIC ISSUE IN THIS CASE, REPORT NO. 49
PRECLUDES CONSIDERATION OF THAT ISSUE IN THIS CASE.
THE POLICY ANNOUNCED IN REPORT NO. 49 DOES NOT HAVE THE BROAD SWEEP
GIVEN TO IT BY THE RESPONDENT'S INTERPRETATION. OF COURSE, NOT ALL
CONTRACT VIOLATIONS ARE UNFAIR LABOR PRACTICES. WHERE THERE IS A BONA
FIDE DISAGREEMENT OVER THE MEANING OF A CONTRACTUAL PROVISION AND THE
RESPONDENT ACTS IN ACCORDANCE WITH ITS INTERPRETATION, REPORT NO. 49
WOULD GOVERN AND THE PARTIES WILL BE LEFT TO THEIR REMEDIES UNDER THEIR
COLLECTIVE BARGAINING AGREEMENT. HOWEVER, WHERE ONE PARTY INITIATES A
COURSE OF CONDUCT CLEARLY INCONSISTENT WITH THE TERMS OF THE COLLECTIVE
AGREEMENT, SUCH CONDUCT CONSTITUTES AN ATTEMPTED UNILATERAL CHANGE IN
THE AGREEMENT AND WOULD BE NOT ONLY IN VIOLATION OF THE AGREEMENT BUT A
VIOLATION OF SECTION 19(A)(6) OF 19(B)(6) AND WOULD BE ENTERTAINED AS AN
UNFAIR LABOR PRACTICE. VETERANS ADMINISTRATION HOSPITAL, CHARLESTON,
SOUTH CAROLINA AND SERVICE EMPLOYEES INTERNATIONAL UNION, A/SLMR NO. 87,
AT PAGE 5, AUGUST 3, 1971.
ALTHOUGH THE CHARLESTON VETERANS HOSPITAL CASE ANTEDATED REPORT NO.
49, THAT REPORT WAS NOT INTENDED TO RESCIND THE PRINCIPLE FOLLOWED IN
THAT CASE. IN NASA, KENNEDY SPACE CENTER AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES THE ASSISTANT SECRETARY EXPRESSLY SO STATED.
A/SLMR NO. 223 AT PAGE 3, DECEMBER 4, 1972. SEE ALSO VETERANS
ADMINISTRATION CENTER, BATH, NEW YORK AND LOCAL 491, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES, A/SLMR NO. 335, JANUARY 8, 1974.
IN DEPARTMENT OF THE AIR FORCE, BASE PROCUREMENT OFFICE, VANDENBURG
AIR FORCE BASE AND NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1001,
A/SLMR NO. 485, FEBRUARY 4, 1975, THE RESPONDENT FILED WITH THE
ASSISTANT REGIONAL DIRECTOR A MOTION TO DISMISS ON THE GROUND THAT THE
DISPUTE WAS ESSENTIALLY A MATTER OF CONTRACT INTERPRETATION SUBJECT TO
RESOLUTION UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, THE SAME CONTENTION
AS IS MADE HERE. THE ASSISTANT REGIONAL DIRECTOR DENIED THE MOTION
STATING THAT THE ISSUES WENT BEYOND MERELY CONTRACT INTERPRETATION AND
THAT SECTION 19(D) OF THE EXECUTIVE ORDER GAVE THE COMPLAINANT THE
ELECTION OF PROCEEDING BY WAY OF THE GRIEVANCE PROCEDURE OR BY WAY OF
COMPLAINT OF AN UNFAIR LABOR PRACTICE. THE MOTION WAS RENEWED BEFORE
THE ADMINISTRATIVE LAW JUDGE. IN HIS REPORT AND RECOMMENDATION JUDGE
DEVANEY RECOMMENDED THAT THE MOTION BE DENIED ON TWO GROUNDS ONE OF
WHICH WAS THAT THE SECOND SENTENCE OF SECTION 19(D), ESPECIALLY IN VIEW
OF THE EXPLICIT LANGUAGE OF THE REPORT AND RECOMMENDATION ON THE
AMENDMENT OF EXECUTIVE ORDER 11491, CLEARLY AND UNAMBIGUOUSLY GAVE THE
AGGRIEVED PARTY THE OPTION TO PURSUE HIS GRIEVANCE UNDER THE GRIEVANCE
PROCEDURE OR TO PURSUE A REMEDY BY WAY OF AN UNFAIR LABOR PRACTICE
COMPLAINT UNDER THE ORDER. THE ASSISTANT SECRETARY DENIED THE MOTION
WITHOUT CONSIDERING THIS POINT.
I CONCLUDE THAT THE POLICY EXPRESSED IN REPORT NO. 49 DOES NOT
PRECLUDE DECIDING THIS CASE UNDER A COMPLAINT OF AN UNFAIR LABOR
PRACTICE.
III. THE RESPONDENT'S DISPARATE PROCEDURE IN DISCIPLINING
PROBATIONARY AND NON-PROBATIONARY EMPLOYEES IS NOT UNLAWFUL
DISCRIMINATION IN VIOLATION OF SECTION 19(A)(2).
THE COMPLAINANT ARGUES THAT BY PERMITTING THE UNION TO BE PRESENT AT
A "PRE-ACTION INVESTIGATION" OF A PERMANENT EMPLOYEE AND RECOGNIZING THE
RIGHT OF SUCH AN EMPLOYEE TO HAVE A UNION REPRESENTATIVE REPRESENT HIM
AT SUCH A MEETING, WHILE DENYING SUCH RIGHT TO PROBATIONARY EMPLOYEES,
THE RESPONDENT MAKES UNION MEMBERSHIP LESS VALUABLE AND LESS ATTRACTIVE
TO PROBATIONARY EMPLOYEES, THEREBY DISCOURAGES PROBATIONARY EMPLOYEES
FROM JOINING THE UNION, AND THEREFORE VIOLATES SECTION 19(A)(2) OF THE
EXECUTIVE ORDER. I FIND SUCH CONCLUSION UNSOUND, ALTHOUGH IT HAS SOME
LITERAL VALIDITY.
SECTION 19(A)(2) MAKES IT AN UNFAIR LABOR PRACTICE FOR AGENCY
MANAGEMENT TO:
"ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
DISCRIMINATION IN REGARD TO
HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT;"
THE RIGHT TO HAVE A UNION REPRESENTATIVE ACT ON BEHALF OF AN EMPLOYEE
AT A PRE-TERMINATION CONFERENCE OR AT A PRE-DISCIPLINE INVESTIGATION IS
A CONDITION OF EMPLOYMENT. AND THE RESPONDENT DOES DISCRIMINATE BETWEEN
PROBATIONARY AND NON-PROBATIONARY EMPLOYEES IN THAT CONDITION OF
EMPLOYMENT. AND THAT DISCRIMINATION DOES MAKE UNION MEMBERSHIP LESS
ATTRACTIVE TO PROBATIONARY EMPLOYEES. BUT I CONCLUDE THAT SUCH
DISCRIMINATION IS NOT IN VIOLATION OF SECTION 19(A)(2).
I CONCLUDE THAT NOT ALL DISCRIMINATION IN CONDITIONS OF EMPLOYMENT
THAT MAKES UNION MEMBERSHIP LESS VALUABLE AND THEREFORE DISCOURAGES
MEMBERSHIP WOULD BE IN VIOLATION OF SECTION 19(A)(2) OF THE EXECUTIVE
ORDER. I BELIEVE THAT FOR THE DISCRIMINATION TO BE PROSCRIBED IT MUST
BE BASED ON OR MOTIVATED BY, AT LEAST IN PART, UNION MEMBERSHIP OR
ACTIVITY OR SYMPATHY, THAT IT MUST HAVE A UNION RELATIONSHIP.
IF THE RESPONDENT PERMITTED ALL EMPLOYEES TO BE REPRESENTED BY THE
UNION AT A PRE-TERMINATION CONFERENCE OR THE IMPOSITION OF DISCIPLINE
AND AT DISCIPLINE INVESTIGATIONS, EXCEPT EMPLOYEES NAMED JONES, SUCH
DISPARATE PROCEDURE WOULD MAKE UNION MEMBERSHIP LESS VALUABLE TO
EMPLOYEES NAMED JONES AND PERHAPS DISCOURAGE THEM FROM SEEKING
MEMBERSHIP. BUT I BELIEVE THAT SUCH PROCEDURE, HOWEVER REPREHENSIBLE
OTHERWISE, WOULD NOT VIOLATE THE PROSCRIPTION OF SECTION 19(A)(2). THE
SAME RESULT WOULD FOLLOW IF THE DISCRIMINATION WERE BASED ON SEX OR
RELIGION OR RACE INSTEAD OF SURNAME. THE DISCRIMINATION WOULD BE WRONG
AND PROBABLY REMEDIABLE, BUT NOT UNDER SECTION 19(A)(2) OR ANY OTHER
PROVISION OF THE EXECUTIVE ORDER. I FIND THE DISCRIMINATION INVOLVED
HERE, AGAINST EMPLOYEES WHOSE STATUS IS THAT OF PROBATIONARY EMPLOYEE,
TO BE OF THAT NATURE. THERE IS NO INTIMATION THAT UNION ANIMUS IS
INVOLVED IN THIS CASE. I CONCLUDE THERE WAS NO VIOLATION OF SECTION
19(A)(2) OF THE EXECUTIVE ORDER.
IV. THE CONDUCT OF THE JULY 1, 1974 MEETING WAS NOT IN VIOLATION OF
SECTION 10(E) OF THE ORDER.
THE LAST SENTENCE OF SECTION 10(E) OF EXECUTIVE ORDER 11491 PROVIDES:
"THE LABOR ORGANIZATION SHALL BE GIVEN THE OPPORTUNITY TO BE
REPRESENTED AT FORMAL
DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR EMPLOYEE
REPRESENTATIVES CONCERNING
GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS
AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES IN THE UNIT."
THE RIGHT OF A LABOR ORGANIZATION TO BE REPRESENTED AT SUCH
DISCUSSIONS MEANS THE RIGHT TO BE REPRESENTED AS A PARTICIPANT, NOT
MERELY AS AN OBSERVER. BEING PERMITTED TO BE PRESENT ONLY AS AN
OBSERVER WOULD FRUSTRATE NOT ONLY THE LABOR ORGANIZATION'S INTERESTS IN
THE DISCUSSION BUT COULD ALSO FRUSTRATE ITS FULFILLING ITS OBLIGATION
IMPOSED BY THE SECOND SENTENCE OF SECTION 10(E), THE OBLIGATION TO
REPRESENT THE INTERESTS OF ALL EMPLOYEES IN THE UNIT. SHOULD AGENCY
MANAGEMENT DENY TO A LABOR ORGANIZATION THE OPPORTUNITY TO BE
REPRESENTED AT SUCH DISCUSSIONS AS A PARTICIPANT, IT WOULD VIOLATE THE
PROSCRIPTION OF SECTION 19(A)(6) AGAINST REFUSING TO CONFER. AND SINCE
ALL EMPLOYEES IN THE UNIT HAVE THE RIGHT TO HAVE THE UNION FULFILL ITS
OBLIGATION OF THE SECOND SENTENCE OF SECTION 10(E) TO REPRESENT THEM, IT
WOULD ALSO VIOLATE SECTION 19(A)(1).
THE QUESTION HERE THEN IS WHETHER THE JULY 1, 1974 DISCUSSION WAS A
FORMAL DISCUSSION AND IF IT WAS WHETHER IT CONCERNED "GRIEVANCES,
PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL
WORKING CONDITIONS OF EMPLOYEES IN THE UNIT".
I CONCLUDE THAT THE JULY 1, 1974 MEETING WAS "FORMAL" IN NATURE
WITHIN THE MEANING OF SECTION 10(E). THE DISCUSSION WAS WITH THE HEAD
OF THE WELDING SHOP, SEVERAL SUPERVISORY STEPS ABOVE THE EMPLOYEE, WITH
AN EXECUTIVE FROM THE PERSONNEL OFFICE ALSO REPRESENTING MANAGEMENT. IT
WAS HELD PURSUANT TO A FORMAL INSTRUCTION PROMULGATED BY THE COMMANDER
OF THE ACTIVITY, THE NORFOLK NAVAL SHIPYARD. THE SUBJECT WAS WHETHER
THE EMPLOYEE SHOULD BE RETAINED IN EMPLOYMENT AND, IN ACCORDANCE WITH
THE INSTRUCTION, THE EMPLOYEE WAS TO BE TOLD AT THE CONCLUSION OF THE
DISCUSSION WHETHER HE WAS TO BE RETAINED. /10/ A DISCUSSION IN WHICH
THE EMPLOYEE'S JOB IS AT STAKE AND AT WHICH A DECISION IS TO BE MADE,
AND COMMUNICATED TO THE EMPLOYEE, WHETHER HE WILL BE RETAINED OR
TERMINATED AS AN EMPLOYEE, CANNOT BE CHARACTERIZED AS AN INFORMAL
DISCUSSION. THERE REMAINS THE QUESTION WHETHER IT CONCERNED
"GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS
AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT."
AS THE JULY 1, 1974 DISCUSSION DEVELOPED, IT DID INCLUDE A MATTER
AFFECTING GENERAL WORKING CONDITIONS. A "GENERAL" WORKING CONDITION
NEED NOT BE ONE AFFECTING ALL THE EMPLOYEES IN THE UNIT. HOW MANY MORE
THAN ONE EMPLOYEE MUST BE AFFECTED TO MAKE A WORKING CONDITION A
"GENERAL" WORKING CONDITION NEED NOT BE DECIDED. HERE ABOUT 50 OF THE
APPROXIMATELY 425 WELDERS WERE EMPLOYED AT WG-8 AND THE OTHER 375 AT
WG-10. THE JULY 1 MEETING DID INCLUDE A DISCUSSION OF THE COMPLEXITY
AND DIFFICULTY OF WELDING WORK THAT MANAGEMENT COULD PROPERLY ASSIGN TO
WG-8 EMPLOYEES AND EXPECT SATISFACTORY PERFORMANCE. I FIND A WORKING
CONDITION POTENTIALLY AFFECTING FIFTY EMPLOYEES (OUT OF 425) TO BE
SUFFICIENTLY "GENERAL" TO BE INCLUDED WITHIN SECTION 10(E) OF THE ORDER.
BUT ALTHOUGH GOLDFARB WAS TOLD HE WAS PRESENT AS AN OBSERVER, UNLIKE
THE SITUATION IN CASE NO. 22-5283, THAT IS NOT THE WAY MANAGEMENT ACTED.
GOLDFARB PARTICIPATED IN THE DISCUSSION WHEN HE WANTED TO AND WAS NOT
STOPPED. /11/ HE STATED AND ARGUED HIS VIEWS THAT THE WORK STANDARDS
BEING APPLIED TO COREY, A WG-8, WERE STANDARDS THAT COULD PROPERLY BE
EXPECTED ONLY OF A WG-10 OR HIGHER. THAT WAS THE ONLY PART OF THE
DISCUSSION THAT COULD BE SAID TO BE "GENERAL". THE REST APPLIED ONLY TO
COLEY AND THUS DID NOT FALL WITHIN SECTION 10(E). FEDERAL AVIATION
ADMINISTRATION, NATIONAL AVIATION FACILITIES EXPERIMENTAL CENTER,
ATLANTIC CITY, NEW JERSEY, A/SLMR NO. 438.
THIS CONSTITUTED COMPLIANCE WITH THE LAST SENTENCE OF SECTION 10(E)
OF THE EXECUTIVE ORDER, AND HENCE WAS NOT IN VIOLATION OF SECTIONS
19(A)(1) AND (6). (THERE IS NOT EVEN AN ALLEGATION THAT SECTION
19(A)(6) WAS VIOLATED.) THERE IS AN ALLEGATION THAT SECTION 19(A)(5) WAS
VIOLATED. BUT AN ALLEGATION THAT THE RESPONDENT WRONGFULLY CONDUCTED
THE BARGAINING RELATIONSHIP IS NOT PROPERLY AN ALLEGATION THAT SECTION
19(A)(5) WAS VIOLATED. UNITED STATES ARMY SCHOOL/TRAINING CENTER, FORT
MCCLELLAN, A/SLMR NO. 42, PAGE 7. AND EVEN IF IT WERE, I HAVE CONCLUDED
ABOVE THAT, UNDER THE DECISIONS OF THE ASSISTANT SECRETARY, THE
RESPONDENT DID NOT IMPROPERLY CONDUCT THE BARGAINING RELATIONSHIP IN
VIOLATION OF THE EXECUTIVE ORDER.
I RECOMMEND THAT THE COMPLAINT BE DISMISSED.
DATED: MAY 29, 1975
WASHINGTON, D.C.
/1/ EXH. AS-1.
/2/ EXH. AS-5.
/3/ EXH. AS-6.
/4/ EXH. AS-4.
/5/ TR. 107-109.
/6/ THERE IS A CONFLICT IN THE TESTIMONY ON WHETHER OTHERS IN THE
SUPERVISORY OR MANAGEMENT LEVEL WERE PRESENT. I FIND THESE OTHERS WERE
NOT PRESENT AND THAT THOSE WHO TESTIFIED TO THE CONTRARY WERE CONFUSING
THE JULY 1 MEETING WITH ANOTHER MEETING HELD A FEW DAYS LATER CONCERNING
THE EQUAL EMPLOYMENT OPPORTUNITY ASPECT OF THE MATTER.
/7/ TR. 53-57.
/8/ EXH. R-1, P. 71.
/9/ SEE, E.G., SECTION 3 AND SECTION 6 OF ARTICLE 31, EXH. R-1.
/10/ EXH. C-1.
/11/ TR. 53-57, ESP. 56-57.
5 A/SLMR 547; P. 549; CASE NOS. 22-3834(CU), 22-5252(CU); AUGUST
28, 1975.
DEPARTMENT OF THE NAVY,
NORFOLK NAVAL SHIPYARD
A/SLMR NO. 547
THIS CASE INVOLVED A PETITION FOR CLARIFICATION OF UNIT FILED BY THE
TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADE COUNCIL, AFL-CIO (MTC),
SEEKING TO CLARIFY THE STATUS OF PHYSICAL SCIENCE TECHNICIANS IN THE
EXCLUSIVELY RECOGNIZED UNIT REPRESENTED BY THE MTC AND A PETITION FILED
BY THE ACTIVITY SEEKING TO EXCLUDE THE AFOREMENTIONED PHYSICAL SCIENCE
TECHNICIANS, CERTAIN EMPLOYEE CLASSIFICATIONS ALLEGED TO BE SUPERVISORY,
AND EMPLOYEES ENGAGED IN THE OPERATION, REPAIR AND/OR MAINTENANCE OF
CRYPTOGRAPHIC EQUIPMENT FROM THE EXCLUSIVELY RECOGNIZED UNIT REPRESENTED
BY THE MTC. THE MTC REPRESENTS EXCLUSIVELY A UNIT COMPOSED PRIMARILY OF
WAGE BOARD (WB) EMPLOYEES OF THE ACTIVITY. AT THE HEARING, THE MTC
JOINED WITH THE ACTIVITY AND THE INTERVENOR, THE INTERNATIONAL
FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, LOCAL NO. 1 (IFPTE)
IN A STIPULATION OF FACTS AND ISSUES IN SUPPORT OF THE ACTIVITY'S
PETITION BUT SPECIFICALLY DECLINED TO WITHDRAW ITS OWN PETITION.
WITH RESPECT TO THE EMPLOYEE CLASSIFIED AS A SUPERVISORY SUPPLY
TECHNICIAN, GS-7, AND THE APPROXIMATELY 12 SUPERVISORY FIREFIGHTERS,
BELOW GS-9, THE ASSISTANT SECRETARY NOTED THE PARTIES' STIPULATION THAT
SUCH EMPLOYEES EXERCISE THE SUPERVISORY AUTHORITY AS SET FORTH UNDER
SECTION 2(C) OF THE ORDER AND THAT THEIR EXERCISE OF THIS AUTHORITY IS
NOT OF A ROUTINE OR CLERICAL NATURE BUT REQUIRES THE USE OF INDEPENDENT
JUDGEMENT. FURTHER, WITH REGARD TO THE APPROXIMATELY 27 EMPLOYEES WHO
OPERATE, REPAIR AND/OR MAINTAIN CRYPTOGRAPHIC EQUIPMENT, THE RECORD
REVEALED THAT UNDER SECTION 3(B)(3) OF THE ORDER, THE SECRETARY OF THE
NAVY HAD EXCLUDED SUCH EMPLOYEES FROM THE COVERAGE OF THE ORDER.
UNDER THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY ORDERED THAT THE
MTC UNIT BE CLARIFIED TO EXCLUDE A SUPERVISORY SUPPLY TECHNICIAN, GS-7,
IN THE INVENTORY DIVISION; SUPERVISORY FIREFIGHTERS BELOW GS-9 IN THE
FIREFIGHTING BRANCH, AND EMPLOYEES WHO OPERATE, REPAIR AND/OR MAINTAIN
CRYPTOGRAPHIC EQUIPMENT AT THE ACTIVITY.
WITH REGARD TO THE APPROXIMATELY 32 PHYSICAL SCIENCE TECHNICIANS IN
THE ACTIVITY'S RADIOLOGICAL MONITORING DIVISION, THE EMPLOYEES IN
QUESTION WERE AT ONE TIME WAGE BOARD (WB) EMPLOYEES BUT, AS A RESULT OF
A RECLASSIFICATION ACTION ON DECEMBER 24, 1972, THEY BECAME GENERAL
SCHEDULE (GS) EMPLOYEES. CONCURRENTLY, THE ACTIVITY INFORMED THE MTC
THAT THE PHYSICAL SCIENCE TECHNICIANS HAD BEEN ADDED TO AN EXISTING UNIT
OF PROFESSIONAL AND TECHNICAL EMPLOYEES REPRESENTED EXCLUSIVELY BY THE
IFPTE.
NOTING THAT, DESPITE THE CHANGE IN THEIR DESIGNATION AND METHOD OF
COMPENSATION AND THEIR INCREASED EDUCATION REQUIREMENTS, THE PHYSICAL
SCIENCE TECHNICIANS' DUTIES HAD NOT CHANGED SUBSTANTIALLY AND THEIR
FREQUENT JOB CONTACTS WITH WB EMPLOYEES HAD NOT BEEN ALTERED, THE
ASSISTANT SECRETARY FOUND THAT THE EMPLOYEES IN QUESTION CONTINUE TO
SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST WITH THE WB
EMPLOYEES OF THE ACTIVITY REPRESENTED BY THE MTC.
ACCORDINGLY, HE ORDERED THAT THE MTC UNIT BE CLARIFIED TO INCLUDE THE
GS PHYSICAL SCIENCE TECHNICIANS IN THE ACTIVITY'S RADIOLOGICAL
MONITORING DIVISION.
DEPARTMENT OF THE NAVY,
NORFOLK NAVAL SHIPYARD
AND
TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO
DEPARTMENT OF THE NAVY,
NORFOLK NAVAL SHIPYARD
AND
TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO
AND
INTERNATIONAL FEDERATION OF PROFESSIONAL
AND TECHNICAL ENGINEERS, LOCAL NO. 1
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER D. K.
CLARK. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THE SUBJECT CASES, THE ASSISTANT SECRETARY
FINDS:
IN CASE NO. 22-3834(CU), THE PETITIONER, THE TIDEWATER VIRGINIA
FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, HEREIN CALLED THE MTC,
THE EXCLUSIVE REPRESENTATIVE OF CERTAIN EMPLOYEES OF THE ACTIVITY, /1/
SEEKS TO CLARIFY THE STATUS OF APPROXIMATELY 32 PHYSICAL SCIENCE
TECHNICIANS, FORMERLY CALLED RADIATION MONITORS, REQUESTING THAT THEY BE
INCLUDED IN THE EXCLUSIVELY RECOGNIZED UNIT REPRESENTED BY THE MTC. /2/
IN CASE NO. 22-5252(CU), THE ACTIVITY-PETITIONER SEEKS TO CLARIFY THE
STATUS OF FOUR EMPLOYEE CLASSIFICATIONS IN THE EXCLUSIVELY RECOGNIZED
UNIT REPRESENTED BY THE MTC, REQUESTING THAT ONE SUPERVISORY SUPPLY
TECHNICIAN, APPROXIMATELY 12 SUPERVISORY FIREFIGHTERS, APPROXIMATELY 27
EMPLOYEES OPERATING, REPAIRING AND/OR MAINTAINING CRYPTOGRAPHIC
EQUIPMENT, AND THE AFOREMENTIONED 32 PHYSICAL SCIENCE TECHNICIANS BE
EXCLUDED FROM THE MTC UNIT. IN ADDITION, FOR THE SAKE OF CLARITY, THE
ACTIVITY-PETITIONER SEEKS CERTAIN EDITORIAL CHANGES IN THE UNIT
DEFINITION.
THE MISSION OF THE ACTIVITY IS TO PROVIDE LOGISTIC SUPPORT FOR THE
NAVY AND TO CONSTRUCT, REPAIR AND OVERHAUL NAVAL SHIPS, INCLUDING
NUCLEAR SHIPS. THE INTERVENOR IN CASE NO. 22-5252(CU), THE
INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, LOCAL
NO. 1, HEREIN CALLED IFPTE, REPRESENTS A UNIT OF PROFESSIONAL AND
TECHNICAL EMPLOYEES IN THE ENGINEERING SCIENCES AT THE ACTIVITY. /3/
WITH REGARD TO THE SUPERVISORY SUPPLY TECHNICIAN, GS-7, IN THE
INVENTORY DIVISION OF THE SUPPLY DEPARTMENT AND THE SUPERVISORY
FIREFIGHTERS, BELOW GS-9, IN THE FIRE BRANCH OF THE SECURITY DIVISION,
THE PARTIES STIPULATED THAT THESE EMPLOYEES EXERCISE SUPERVISORY
AUTHORITY AS SET FORTH UNDER SECTION 2(C) OF THE ORDER AND THAT THEIR
EXERCISE OF THIS AUTHORITY IS NOT OF A ROUTINE OR CLERICAL NATURE BUT
REQUIRES THE USE OF INDEPENDENT JUDGEMENT. IN THE ABSENCE OF ANY
EVIDENCE THAT SUCH STIPULATION IS IMPROPER, I FIND THAT THE SUPERVISORY
SUPPLY TECHNICIAN, GS-7, IN THE INVENTORY DIVISION OF THE SUPPLY
DEPARTMENT AND THE SUPERVISORY FIREFIGHTERS, BELOW GS-9, IN THE FIRE
BRANCH OF THE SECURITY DIVISION ARE SUPERVISORS WITHIN THE MEANING OF
THE ORDER AND, THEREFORE, SHOULD BE EXCLUDED FROM THE EXCLUSIVELY
RECOGNIZED UNIT REPRESENTED BY THE MTC.
FURTHER, THE PARTIES STIPULATED THAT THE EMPLOYEES WHO OPERATE,
REPAIR AND/OR MAINTAIN CRYPTOGRAPHIC EQUIPMENT IN THE
ELECTRICAL-ELECTRONICS SHOP AT THE ACTIVITY SHOULD BE EXCLUDED FROM THE
UNIT ON THE GROUNDS THAT UNDER SECTION 3(B)(3) OF THE ORDER /4/ THE HEAD
OF THE AGENCY HAD DETERMINED, IN HIS SOLE JUDGEMENT, THAT THESE
EMPLOYEES PERFORM INTELLIGENCE, INVESTIGATIVE OR SECURITY WORK AS THEIR
PRIMARY FUNCTION AND THAT THE ORDER CANNOT BE APPLIED IN A MATTER
CONSISTENT WITH NATIONAL SECURITY REQUIREMENTS AND CONSIDERATIONS. IN
THIS REGARD, THE RECORD REVEALS THAT THE SECRETARY OF THE NAVY, IN FACT,
EXCLUDED FROM THE COVERAGE OF THE ORDER, "EMPLOYEES OPERATING ANY ITEM
OF CRYPTOGRAPHIC EQUIPMENT, EITHER 'OFF LINE' OR 'ON LINE'" AND
"EMPLOYEES WHO REPAIR AND/OR MAINTAIN CRYPTOGRAPHIC EQUIPMENT." UNDER
THESE CIRCUMSTANCES, I FIND THAT EMPLOYEES WHO OPERATE, REPAIR AND/OR
MAINTAIN CRYPTOGRAPHIC EQUIPMENT AT THE ACTIVITY SHOULD BE EXCLUDED FROM
THE EXCLUSIVELY RECOGNIZED UNIT REPRESENTED BY THE MTC. /5/
WITH RESPECT TO THE PHYSICAL SCIENCE TECHNICIANS EMPLOYED IN THE
RADIOLOGICAL MONITORING DIVISION OF THE ACTIVITY'S RADIOLOGICAL CONTROL
OFFICE, THE RECORD REVEALS THAT PRIOR TO DECEMBER 24, 1972, THESE
EMPLOYEES HAD BEEN CLASSIFIED AS RADIATION MONITORS AND, AS SUCH, WERE
WAGE BOARD (WB) EMPLOYEES REPRESENTED BY THE MTC. AS OF THAT DATE, THEY
WERE RECLASSIFIED AS PHYSICAL SCIENCE TECHNICIANS AND BECAME GENERAL
SCHEDULE (GS) EMPLOYEES. IN THIS CONNECTION, THE ACTIVITY INFORMED THE
MTC THAT THE RECLASSIFICATION WOULD RESULT IN THE REMOVAL OF THESE
EMPLOYEES FROM THE UNIT REPRESENTED BY THE MTC AND THEIR INCLUSION IN
THE UNIT REPRESENTED BY THE IFPTE. THE PARTIES STIPULATED THAT THE
PHYSICAL SCIENCE TECHNICIANS ARE TECHNICAL EMPLOYEES AND THAT, SINCE
THEIR RECLASSIFICATION, THEY HAVE BEEN REPRESENTED BY THE IFPTE.
THE ACTIVITY INSTITUTED THE CLASSIFICATION OF RADIATION MONITOR IN
1963. THE RECORD REVEALS THAT, SINCE THAT TIME, THE AMOUNT OF REPAIR
AND OVERHAUL WORK INVOLVING NUCLEAR SHIPS HAS INCREASED GREATLY AND
THAT, IN THE PROCESS OF GENERATING NUCLEAR ENERGY, RADIATION IS EMITTED
WHICH CAN BE LETHAL IN SUFFICIENT AMOUNTS. CONSEQUENTLY, THE ACTIVITY'S
RADIOLOGICAL MONITORING DIVISION IS RESPONSIBLE FOR, AMONG OTHER THINGS,
THE DETECTION AND MEASUREMENT OF RADIATION IN WORKING AREAS AND
THROUGHOUT THE SHIPYARD, CONDUCTING SURVEILLANCE OF WORK INVOLVING
RADIOACTIVE MATERIALS, ENSURING COMPLIANCE WITH RADIOLOGICAL CONTROLS,
ASSURING PROPER CONTROL OF RADIOACTIVE MATERIALS, AND PROTECTING
ACTIVITY PERSONNEL AND THE GENERAL PUBLIC FROM RADIATION AND RADIOACTIVE
CONTAMINATION.
AS NOTED ABOVE, AT PRESENT THERE ARE APPROXIMATELY 32 EMPLOYEES
PERFORMING RADIOLOGICAL MONITORING FUNCTIONS. CONCURRENT WITH THE
INCREASED WORK LOAD, THE ACTIVITY HAS SOUGHT TO UPGRADE THE BASIC
REQUIREMENTS OF THE PHYSICAL SCIENCE TECHNICIAN POSITION. THUS, THE
DEPARTMENT OF THE NAVY ISSUED A MANUAL SETTING FORTH THE MINIMUM
KNOWLEDGE REQUIREMENTS FOR PHYSICAL SCIENCE TECHNICIANS AND ESTABLISHED
A PROGRAM OF CLASSROOM TRAINING FOR SUCH EMPLOYEES. IT ALSO WAS
REQUIRED THAT THESE EMPLOYEES TAKE PERIODIC EXAMINATIONS TO DEMONSTRATE
THEIR KNOWLEDGE OF RADIOLOGICAL PRINCIPLES. THE RECORD FURTHER REVEALS
THAT, SINCE THEIR RECLASSIFICATION, THE ACTIVITY BEGAN CONCENTRATING ITS
RECRUITMENT EFFORTS FOR PHYSICAL SCIENCE TECHNICIANS ON INDIVIDUALS WHO
HAD RECEIVED COLLEGE LEVEL TRAINING IN SCIENCE AND MATHEMATICS AND HAVE
ELIGIBILITY ON THE CIVIL SERVICE REGISTER, RATHER THAN HIRING
INDIVIDUALS FROM CRAFT-TYPE POSITIONS WITHIN THE ACTIVITY AS HAD BEEN
DONE PREVIOUSLY.
WITH RESPECT TO THE SPECIFIC DUTIES PERFORMED BY THESE EMPLOYEES, THE
EVIDENCE ESTABLISHES THAT THE PHYSICAL SCIENCE TECHNICIANS IN THE
RADIOLOGICAL MONITORING DIVISION ARE RESPONSIBLE FOR MAINTAINING
RADIOLOGICAL CONTROL AREAS WHERE WORK INVOLVING RADIOACTIVE MATERIALS IS
BEING PERFORMED. IN THIS REGARD, THEY CONDUCT SURVEILLANCE OF
RADIOLOGICALLY CONTROLLED AREAS FOR COMPLIANCE WITH ESTABLISHED
RADIOLOGICAL WORK PRACTICES AND PROCEDURES, AND THEY USE INSTRUMENTS TO
PERFORM QUANTITATIVE ANALYSES OF AIR, LIQUID, AND SURFACE SAMPLES TO
DETERMINE RADIATION LEVELS AND AMOUNTS OF RADIOACTIVE MATERIALS. WHILE
IT APPEARS THAT THE DUTIES OF THE PHYSICAL SCIENCE TECHNICIANS HAVE
UNDERGONE CERTAIN CHANGES DUE TO INCREASED WORKLOAD AND TECHNOLOGICAL
ADVANCES, THE EVIDENCE INDICATES THAT THEY ARE PERFORMING ESSENTIALLY
THE SAME DUTIES AS THEY PERFORMED PRIOR TO THE RECLASSIFICATION ACTION.
THE RECORD REVEALS THAT THE EMPLOYEES IN QUESTION SPEND THE
PREPONDERANT SHARE OF THEIR WORKING TIME IN AREAS OF THE SHIPYARD WHERE
WORK ON NUCLEAR SHIPS IS BEING PERFORMED AND, IN THIS CONNECTION, THEY
COME IN FREQUENT CONTACT WITH WB EMPLOYEES. WHILE THE RECORD REVEALS
THAT, SUBSEQUENT TO THE RECLASSIFICATION, THE HEADQUARTERS OF THE
RADIOLOGICAL MONITORING DIVISION WAS REMOVED FROM THE PRODUCTION SHOP
AREA OF THE SHIPYARD, THERE IS NO INDICATION THAT THE RECLASSIFICATION
REDUCED THE FREQUENCY OF THE WORK CONTACTS BETWEEN THE PHYSICAL SCIENCE
TECHNICIANS AND THE WB EMPLOYEES.
BASED ON ALL OF THE FOREGOING CIRCUMSTANCES, I FIND THAT PHYSICAL
SCIENCE TECHNICIANS EMPLOYED IN THE RADIOLOGICAL MONITORING DIVISION
CONTINUE TO SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST WITH
THE WB EMPLOYEES OF THE ACTIVITY REPRESENTED BY THE MTC. THUS, AS NOTED
ABOVE, THE DUTIES OF THE EMPLOYEES IN QUESTION HAVE NOT CHANGED
SUBSTANTIALLY DESPITE THE CHANGE IN THEIR DESIGNATION AND METHOD OF
COMPENSATION. NOR HAVE THEIR NUMEROUS WORK CONTACTS WITH WB EMPLOYEES
BEEN ALTERED OR REDUCED. /6/
ACCORDINGLY, I FIND THAT THE EXISTING EXCLUSIVELY RECOGNIZED UNIT
REPRESENTED BY THE MTC SHOULD BE CLARIFIED TO INCLUDE THE PHYSICAL
SCIENCE TECHNICIANS IN THE ACTIVITY'S RADIOLOGICAL MONITORING DIVISION.
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, FOR
WHICH THE TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL,
AFL-CIO, WAS CERTIFIED ON AUGUST 24, 1972, BE, AND HEREBY IS, CLARIFIED
BY INCLUDING IN SAID UNIT THE PHYSICAL SCIENCE TECHNICIANS IN THE
RADIOLOGICAL MONITORING DIVISION, RADIOLOGICAL CONTROL OFFICE AND BY
EXCLUDING FROM SAID UNIT THE FOLLOWING POSITIONS: SUPERVISORY SUPPLY
TECHNICIAN, GS-7, IN THE INVENTORY DIVISION OF THE SUPPLY DEPARTMENT;
SUPERVISORY FIREFIGHTERS, BELOW GS-9, IN THE FIRE BRANCH OF THE SECURITY
DIVISION; AND EMPLOYEES WHO OPERATE, REPAIR AND/OR MAINTAIN
CRYPTOGRAPHIC EQUIPMENT AT THE NORFOLK NAVAL SHIPYARD, PORTSMOUTH,
VIRGINIA.
ACCORDINGLY, THE EXISTING UNIT, AS CLARIFIED, REPRESENTED BY THE
TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, AT
THE NORFOLK NAVAL SHIPYARD, PORTSMOUTH, VIRGINIA, IS AS FOLLOWS:
ALL UNGRADED EMPLOYEES INCLUDING LEADERS; ALL PHYSICAL SCIENCE
TECHNICIANS IN THE
RADIOLOGICAL MONITORING DIVISION, RADIOLOGICAL CONTROL OFFICE; ALL
GRADED EMPLOYEES IN THE
INVENTORY DIVISION OF THE SUPPLY DEPARTMENT AND IN THE FIRE DIVISION
OF THE ADMINISTRATIVE
DEPARTMENT, EXCLUDING ALL INSPECTORS, SHIP PROGRESSMEN, SHIP
SCHEDULERS, SHIP SURVEYORS,
PLANNERS AND ESTIMATORS, PATTERNMAKERS, PRODUCTION SHOP PLANNERS
(PATTERNMAKERS), APPRENTICE
PATTERNMAKERS, ALL EMPLOYEES WHO OPERATE, REPAIR AND/OR MAINTAIN
CRYPTOGRAPHIC EQUIPMENT,
PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY
CLERICAL CAPACITY, TEMPORARY EMPLOYEES WITH NON-RECURRING
APPOINTMENTS FOR LESS THAN NINETY
(90) DAYS, GUARDS AND WATCHMEN, MANAGEMENT OFFICIALS, AND ALL
SUPERVISORS AS DEFINED IN THE
ORDER.
DATED, WASHINGTON, D.C.
AUGUST 28, 1975
/1/ ON AUGUST 24, 1972, THE MTC WAS CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE IN A UNIT OF "ALL NONSUPERVISORY GRADED EMPLOYEES IN THE
INVENTORY BRANCH OF THE PLANNING DIVISION, SUPPLY DEPARTMENT; ALL
NONSUPERVISORY GRADED EMPLOYEES IN THE FIRE DIVISION, ADMINISTRATIVE
DEPARTMENT, ALL UNGRADED EMPLOYEES BELOW THE LEVEL OF FOREMAN (LEADING
MAN), IN RATINGS AUTHORIZED FOR USE AT AND LISTED ON THE NORFOLK NAVAL
SHIPYARD'S SCHEDULE OF WAGES IN THE PLANNING, PRODUCTION, PUBLIC WORKS,
SUPPLY AND ADMINISTRATIVE DEPARTMENTS, EXCEPT THOSE EMPLOYEES IN THE
FOLLOWING UNGRADED RATINGS: INSPECTORS (ALL OPTIONS); SHIP PROGRESSMEN
(ALL OPTIONS); SHIP SCHEDULER (ALL OPTIONS); SHIP SURVEYOR (ALL
OPTIONS); PLANNER AND ESTIMATOR (ALL OPTIONS); PATTERN-MAKER; SHOP
PLANNER PATTERN-MAKER AND APPRENTICE PATTERN-MAKER. EMPLOYEES WITHIN
THE UNIT TEMPORARILY PROMOTED TO ANOTHER POSITION IN THE UNIT OR
DETAILED TO ANOTHER POSITION IN THE UNIT ARE ELIGIBLE; TEMPORARY
EMPLOYEES APPOINTED FOR A PERIOD IN EXCESS OF 90 DAYS ARE ELIGIBLE;
EMPLOYEES TEMPORARILY PROMOTED OUT OF THE UNIT NOT TO EXCEED 120 DAYS
ARE ELIGIBLE. EXCLUDED: SUPERVISORS IN THE UNGRADED SERVICE;
SUPERVISORS AT GS-9 OR HIGHER LEVEL IN THE GRADED SERVICE. EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN PURELY CLERICAL NATURE;
PROFESSIONAL EMPLOYEES; MANAGEMENT OFFICIALS AND GUARDS. EMPLOYEES
FROM ANOTHER UNIT TEMPORARILY PROMOTED INTO THE UNIT FOR A PERIOD NOT TO
EXCEED 120 DAYS ON DETAIL INTO THE UNIT."
/2/ AT THE HEARING, THE MTC DID NOT PRESENT EVIDENCE IN SUPPORT OF
ITS PETITION IN CASE NO. 32-3834(CU) BUT, RATHER, STIPULATED EVIDENCE IN
SUPPORT OF THE ACTIVITY'S PETITION IN CASE NO. 32-5252(CU). HOWEVER,
THE MTC SPECIFICALLY DECLINED TO WITHDRAW ITS PETITION IN CASE NO.
32-3834(CU).
/3/ THE IFPTE IS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE IN A UNIT
OF, "ALL GRADED PROFESSIONAL AND NON-PROFESSIONAL TECHNICAL EMPLOYEES IN
THE ENGINEERING SCIENCES AND ASSOCIATED FIELDS IN THE PRESENT AND FUTURE
ORGANIZATIONAL COMPONENTS OF THE NORFOLK NAVAL SHIPYARD, INCLUDING:
PLANNING DEPARTMENT; DESIGN, COMBAT SYSTEMS OFFICE, AND NUCLEAR POWER
DEPARTMENT: PROFESSIONAL ENGINEERS (ALL OPTIONS); NAVAL ARCHITECTS;
PHYSICISTS; ARCHITECTS; MATHEMATICIANS; TECHNICIANS; DRAFTSMEN;
PRODUCTION CONTROLLER SPECIALISTS (1152 SERIES); EQUIPMENT SPECIALISTS;
STUDENT TRAINEES; PRODUCTION DEPARTMENT; REPAIR, QUALITY AND
RELIABILITY ASSURANCE, AND PRODUCTION ENGINEERING DIVISIONS:
PROFESSIONAL ENGINEERS (ALL OPTIONS); CHEMISTS; METALLURGISTS;
TECHNICIANS; TECHNOLOGISTS; PRODUCTION SPECIALISTS (1152 SERIES);
EQUIPMENT SPECIALISTS; ILLUSTRATOR (TECHNICAL EQUIPMENT); STUDENT
TRAINEES; PUBLIC WORKS DEPARTMENT, ENGINEERING DIVISION: PROFESSIONAL
ENGINEERS (ALL OPTIONS); ARCHITECTS; TECHNICIANS; DRAFTSMEN; STUDENT
TRAINEES; SUPPLY DEPARTMENT, TECHNICAL DIVISION: EQUIPMENT
SPECIALISTS. AS REQUIRED BY SECTION 10 OF EXECUTIVE ORDER 11491 THIS
UNIT EXCLUDES (1) ANY MANAGEMENT OFFICIAL, (2) ANY EMPLOYEE ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND (3)
SUPERVISORS (AS DEFINED BY EXECUTIVE ORDER 11491)."
/4/ SECTION 3(B)(3) PROVIDES:
(B) THIS ORDER (EXCEPT SECTION 22) DOES NOT APPLY TO--
(3) ANY OTHER AGENCY, OR OFFICE, BUREAU, OR ENTITY WITHIN AN AGENCY,
WHICH HAS AS A PRIMARY
FUNCTION INTELLIGENCE, INVESTIGATIVE, OR SECURITY WORK; WHEN THE
HEAD OF THE AGENCY
DETERMINES, IN HIS SOLE JUDGMENT, THAT THE ORDER CANNOT BE APPLIED IN
A MANNER CONSISTENT WITH
NATIONAL SECURITY REQUIREMENTS AND CONSIDERATION.
/5/ IN THIS REGARD, SEE NAVAL ELECTRONIC SYSTEMS COMMAND ACTIVITY,
BOSTON, MASS., FLRC NO. 71A-12.
/6/ SEE DEPARTMENT OF THE NAVY, CHARLESTON NAVAL SHIPYARD, A/SLMR NO.
302. WHILE NOTING THE PARTICIPATION OF THE MTC IN STIPULATIONS IN
SUPPORT OF THE ACTIVITY'S PROPOSED CLARIFICATION TO REMOVE THE PHYSICAL
SCIENCE TECHNICIANS FROM THE UNIT REPRESENTED EXCLUSIVELY BY THE MTC, IN
MY VIEW, I AM NOT NECESSARILY BOUND BY SUCH STIPULATIONS IN DETERMINING
THE SCOPE OF A UNIT. IN THIS REGARD, SEE ARMY AND AIR FORCE EXCHANGE
SERVICE, WHITE SANDS MISSILE RANGE EXCHANGE, WHITE SANDS MISSILE RANGE,
NEW MEXICO, A/SLMR NO. 25; DEPARTMENT OF THE ARMY, U.S. ARMY
ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY, A/SLMR NO. 83; AND
UNITED STATES ARMY SAFEGUARD LOGISTICS COMMAND, HUNTSVILLE, ALABAMA,
A/SLMR NO. 224. MOREOVER, I VIEW THE MTC'S DETERMINATION NOT TO
WITHDRAW ITS PETITION IN CASE NO. 32-3834(CU) AS AN INDICATION OF ITS
WILLINGNESS TO CONTINUE TO REPRESENT THESE EMPLOYEES.
5 A/SLMR 546; P. 546; CASE NO. 72-5037; AUGUST 28, 1975.
VETERANS ADMINISTRATION,
WADSWORTH HOSPITAL CENTER
A/SLMR NO. 546
THIS CASE, INVOLVING A REPRESENTATION PETITION FILED BY THE
CALIFORNIA ASSOCIATION FOR MEDICAL LABORATORY TECHNOLOGY ENGINEERS AND
SCIENTISTS OF CALIFORNIA, PRESENTED TWO ISSUES: (1) WHETHER A UNIT
COMPOSED SOLELY OF MEDICAL LABORATORY TECHNOLOGISTS, OR IN THE
ALTERNATIVE, A UNIT COMPOSED OF MEDICAL TECHNOLOGISTS, CHEMISTS, AND
MICROBIOLOGISTS, IN THE MEDICAL LABORATORY, IS AN APPROPRIATE UNIT; AND
(2) WHETHER MEDICAL TECHNOLOGISTS ARE PROFESSIONAL EMPLOYEES? THE
ACTIVITY MAINTAINED THAT THE UNIT PETITIONED FOR, OR THE ALTERNATIVE
UNIT, WAS INAPPROPRIATE AND WOULD NOT PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. ALTHOUGH THE ACTIVITY AND THE
PETITIONER WERE IN AGREEMENT THAT THE MEDICAL TECHNOLOGISTS ARE
PROFESSIONAL EMPLOYEES WITHIN THE MEANING OF THE ORDER, THE INTERVENOR,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1061,
CONTENDED THAT THEY ARE NONPROFESSIONAL EMPLOYEES AND, THEREFORE, ARE
PART OF THE UNIT OF ALL NONPROFESSIONAL EMPLOYEES WHICH IT REPRESENTS AT
THE ACTIVITY.
THE ASSISTANT SECRETARY FOUND THAT THE MEDICAL TECHNOLOGISTS WERE
PROFESSIONAL EMPLOYEES WITHIN THE MEANING OF THE ORDER. IN ADDITION, HE
CONCLUDED THAT NEITHER THE PETITIONED FOR UNIT, NOR THE ALTERNATIVE
UNIT, WERE APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. IN
REACHING THIS CONCLUSION, THE ASSISTANT SECRETARY CONSIDERED THE
CONDITIONS OF EMPLOYMENT OF THE CLAIMED EMPLOYEES IN RELATION TO OTHER
PROFESSIONAL EMPLOYEES AT THE ACTIVITY AND FOUND THAT NEITHER THE
PETITIONED FOR UNIT, NOR THE ALTERNATIVE UNIT, CONTAINED EMPLOYEES WHO
SHARE A COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM OTHER
PROFESSIONAL EMPLOYEES OF THE ACTIVITY. MOREOVER, HE FOUND ALSO THAT
SUCH UNITS, LIMITED TO ONE OR SEVERAL OF THE SOME 25 PROFESSIONAL
EMPLOYEE CLASSIFICATIONS AT THE ACTIVITY, WOULD RESULT IN A
PROLIFERATION OF UNITS AND WOULD NOT PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, THE ASSISTANT SECRETARY
ORDERED THAT THE PETITION BE DISMISSED.
VETERANS ADMINISTRATION,
WADSWORTH HOSPITAL CENTER /1/
AND
CALIFORNIA ASSOCIATION FOR
MEDICAL LABORATORY TECHNOLOGY
ENGINEERS AND SCIENTISTS OF
CALIFORNIA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1061
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER IRENE NEWMAN. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE BRIEF FILED BY THE
ACTIVITY, /2/ THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, CALIFORNIA ASSOCIATION FOR MEDICAL LABORATORY
TECHNOLOGY ENGINEERS AND SCIENTISTS OF CALIFORNIA, SEEKS AN ELECTION IN
A UNIT OF ALL MEDICAL LABORATORY TECHNOLOGISTS OF THE VETERANS
ADMINISTRATION, WADSWORTH HOSPITAL CENTER, WEST LOS ANGELES, CALIFORNIA,
EXCLUDING MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL
WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND SUPERVISORS AND
GUARDS AS DEFINED IN THE ORDER. THE RECORD REFLECTS THAT THERE ARE SOME
30 MEDICAL LABORATORY TECHNOLOGISTS IN THE PETITIONED FOR UNIT. AT THE
HEARING, THE PETITIONER INDICATED THAT, IN THE ALTERNATIVE, IT WOULD BE
WILLING TO PROCEED TO AN ELECTION IN A UNIT CONSISTING OF MEDICAL
LABORATORY TECHNOLOGISTS AND THE SEVEN CHEMISTS AND THREE
MICROBIOLOGISTS WHO WORK IN THE MEDICAL LABORATORY AND ARE UNDER THE
SEPARATE AND DISTINCT DIRECTION OF THE MEDICAL LABORATORY. /3/
THE ACTIVITY CONTENDS THAT BOTH THE PETITIONED FOR UNIT AND THE
ALTERNATIVE UNIT SOUGHT ARE INAPPROPRIATE BECAUSE THE EMPLOYEES IN
EITHER OF THE PROPOSED UNITS DO NOT SHARE A COMMUNITY OF INTEREST
SEPARATE AND DISTINCT FROM THE OTHER PROFESSIONAL EMPLOYEES EMPLOYED AT
THE ACTIVITY AND, FURTHER, THAT SUCH UNITS WOULD NOT PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. /4/
THE INTERVENOR, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1061, WHICH IS THE EXCLUSIVE REPRESENTATIVE IN AN ACTIVITY-WIDE
UNIT OF NONPROFESSIONAL GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES,
CONTENDS THAT THE MEDICAL LABORATORY TECHNOLOGISTS ARE NONPROFESSIONAL
EMPLOYEES AND, THEREFORE, ARE INCLUDED IN ITS EXCLUSIVELY RECOGNIZED
UNIT.
THE RECORD REVEALS THAT, IN ADDITION TO THE UNIT REPRESENTED BY THE
INTERVENOR, THE CALIFORNIA NURSES ASSOCIATION (CNA) REPRESENTS A UNIT OF
REGISTERED NURSES AT THE ACTIVITY. THE ACTIVITY'S PROFESSIONAL
EMPLOYEES, EXCEPT FOR THE REGISTERED NURSES REPRESENTED BY THE CNA, ARE
NOT REPRESENTED EXCLUSIVELY. /5/ THERE ARE APPROXIMATELY 25
PROFESSIONAL JOB CLASSIFICATIONS AT THE ACTIVITY-- INCLUDING THE MEDICAL
TECHNOLOGISTS, CHEMISTS AND MICROBIOLOGISTS-- ENCOMPASSING APPROXIMATELY
172 EMPLOYEES, WITH FROM ONE TO THIRTY-ONE EMPLOYEES IN EACH OF THE
VARIOUS PROFESSIONAL CLASSIFICATIONS. THESE PROFESSIONAL
CLASSIFICATIONS INCLUDE, AMONG OTHERS, PHYSICISTS, PHYSIOLOGISTS,
PSYCHOLOGISTS, HISTOLOGISTS, AND BIOLOGISTS.
THE ACTIVITY IS LOCATED IN WEST LOS ANGELES, CALIFORNIA. ITS MISSION
IS TO PROVIDE GENERAL MEDICAL AND SURGICAL SERVICES TO ELIGIBLE VETERANS
IN THE AREA IN WHICH IT IS LOCATED. THE ACTIVITY IS EQUIPPED TO
ACCOMMODATE AN APPROXIMATE 820 BED CAPACITY, AND IT EMPLOYS
APPROXIMATELY 2600 EMPLOYEES. OVERALL DIRECTION OF THE ACTIVITY IS
VESTED IN THE HOSPITAL CENTER DIRECTOR. REPORTING DIRECTLY TO HIM IS
THE ASSISTANT DIRECTOR WHO HAS PRIMARY RESPONSIBILITY FOR THE HOSPITAL
CENTER'S ADMINISTRATIVE SERVICES WHICH INCLUDE BUILDING MANAGEMENT,
FISCAL, MEDICAL ADMINISTRATION, AND PERSONNEL FUNCTIONS. ALSO REPORTING
TO THE DIRECTOR IS THE CHIEF OF STAFF, WHO EXERCISES OVERALL DIRECTION
WITH RESPECT TO ALL ACTIVITY EMPLOYEES, INCLUDING THOSE PETITIONED FOR
HEREIN, WHO ARE ENGAGED IN PERFORMING FUNCTIONS IN THE SERVICES
SPECIFICALLY RELATED TO PATIENT CARE, NAMELY THE MEDICAL, SURGICAL,
PSYCHIATRY, NURSING, AND LABORATORY SERVICES. EACH SUCH SERVICE IS
HEADED BY ITS OWN CHIEF.
THE MEDICAL LABORATORY HAS TWO SECTIONS, THE ANATOMIC PATHOLOGY
SECTION AND THE CLINICAL PATHOLOGY SECTION. EACH SECTION IS UNDER THE
DIRECTION OF A CHIEF. WITHIN THE CLINICAL PATHOLOGY SECTION, WHERE ALL
OF THE CLAIMED MEDICAL LABORATORY TECHNOLOGISTS ARE EMPLOYED, ARE FIVE
UNITS-- MICROBIOLOGY, BLOOD BANK, HEMATOLOGY, CHEMISTRY, AND EMERGENCY--
EACH OF WHICH IS UNDER THE DIRECTION OF A SUPERVISOR. EACH OF THE FIVE
UNITS IN THE CLINICAL PATHOLOGY SECTION INCLUDES MEDICAL TECHNOLOGISTS,
AND, IN FACT, THE BLOOD BANK, HEMATOLOGY, AND EMERGENCY UNITS ARE
SUPERVISED BY MEDICAL TECHNOLOGISTS. /6/ THE TOTAL NUMBER OF MEDICAL
TECHNOLOGISTS IN THE CLINICAL PATHOLOGY SECTION OF THE LABORATORY IS
APPROXIMATELY 39, OF WHOM, AS NOTED ABOVE, APPROXIMATELY 30 ARE ELIGIBLE
FOR INCLUSION IN THE PETITIONED FOR UNIT.
THE RECORD INDICATES THAT THE MEDICAL LABORATORY TECHNOLOGISTS ARE
ENGAGED IN TESTING AND EXAMINING SAMPLES OF FLUIDS AND OTHER BODY
SUBSTANCES OF PATIENTS. PHYSICIANS WHO REQUEST THESE ANALYSES USE THE
REPORTS OF FINDINGS OF TESTS AND EXAMINATIONS IN THEIR DIAGNOSIS, CARE
AND TREATMENT OF PATIENTS. THE WORK OF THE MEDICAL TECHNOLOGISTS MAY BE
OF A "GENERALIST" NATURE OR MAY BE SPECIALIZED IN ONE OF THE FIELDS OF
MEDICAL TECHNOLOGY SUCH AS MICROBIOLOGY, HEMATOLOGY, BLOOD BANKING, AND
CHEMISTRY. REPORTS PREPARED BY THE MEDICAL LABORATORY TECHNOLOGISTS
CONTAIN A RECITATION OF THE SPECIFIC TEST PERFORMED, ITS RESULTS, AS
WELL AS THE OPINIONS AND SOMETIMES THE RECOMMENDATIONS OF THE
TECHNOLOGIST BASED ON THE TEST RESULTS. IN ADDITION TO THESE DUTIES,
THE MEDICAL LABORATORY TECHNOLOGISTS PARTICIPATE IN REVIEWING AND
DEVELOPING NEW TECHNIQUES AND METHODS IN THE LABORATORY. ALSO, THEY
MAKE SPECIAL STUDIES TO EVALUATE AND STANDARDIZE NEW OR IMPROVED
METHODS, PROCEDURES, AND EQUIPMENT FOR USE IN THE LABORATORY, THEY ARE
INVOLVED IN THE TRAINING OF MEDICAL PERSONNEL WHO ROTATE THROUGHOUT THE
ACTIVITY, AND THEY ARE REQUIRED TO MAINTAIN THEIR EQUIPMENT.
THE BASIC EDUCATIONAL REQUIREMENTS FOR THE POSITION OF MEDICAL
TECHNOLOGIST ARE FOUR YEARS OF COLLEGE WITH A BACHELOR OF SCIENCE IN
MEDICAL TECHNOLOGY OR A DEGREE IN A RELATED SCIENCE; THREE YEARS OF
ACADEMIC STUDY AND THE SUCCESSFUL COMPLETION OF A COURSE OF TRAINING OF
APPROXIMATELY ONE YEAR IN A SCHOOL OF MEDICAL TECHNOLOGY APPROVED BY A
NATIONALLY RECOGNIZED ACCREDITING AGENCY /7/ ; OR THREE YEARS OF
ACADEMIC STUDY AND APPROXIMATELY ONE YEAR OF EDUCATION, TRAINING AND
SUPERVISED EXPERIENCE IN RELATED SCIENCES SUCH AS BIOLOGY, CYTOLOGY,
CHEMISTRY, OR HISTOLOGY. /8/ THE MAJORITY OF MEDICAL TECHNOLOGISTS ARE
CERTIFIED BY THE ASCP, BUT THEY ARE NOT REQUIRED TO BE LICENSED BY THE
VETERANS ADMINISTRATION.
UNDER ALL THE CIRCUMSTANCES, I FIND THAT THE MEDICAL TECHNOLOGISTS
ARE PROFESSIONAL EMPLOYEES WITHIN THE MEANING OF THE ORDER. /9/ THUS,
THE EVIDENCE ESTABLISHES THAT THE TECHNOLOGISTS' WORK IS PREDOMINANTLY
INTELLECTUAL AND VARIED, INVOLVES THE EXERCISE OF DISCRETION AND
JUDGMENT, CANNOT BE STANDARDIZED, AND REQUIRES KNOWLEDGE OF AN ADVANCED
TYPE ACQUIRED BY A PROLONGED COURSE OF SPECIALIZED INTELLECTUAL
INSTRUCTION. IT WAS NOTED PARTICULARLY IN THIS REGARD THAT THE
TECHNOLOGISTS SPEND A MAJOR PORTION OF THEIR TIME INVESTIGATING AND
ANALYZING THE CONTENTS OF MATERIALS, RELYING UPON THEIR INDEPENDENT
JUDGMENT IN DETERMINING THE RESULTS AND THE VALIDITY OF PARTICULAR TESTS
WITH MINIMAL SUPERVISION; THAT THEY ARE RESPONSIBLE FOR THE OUTCOME OF
THE TEST RESULTS; THAT THEY REVIEW AND DEVELOP NEW LABORATORY
TECHNIQUES; AND THAT THEIR JOB REQUIRES HIGHLY SPECIALIZED TRAINING.
ACCORDINGLY, AS THE MEDICAL TECHNOLOGISTS ARE PROFESSIONAL EMPLOYEES
WITHIN THE MEANING OF THE ORDER, I FIND THAT THEY ARE NOT INCLUDED
WITHIN THE EXCLUSIVELY RECOGNIZED UNIT OF NONPROFESSIONAL EMPLOYEES
REPRESENTED BY THE INTERVENOR.
THE RECORD INDICATES THAT THE MEDICAL TECHNOLOGISTS ARE GOVERNED BY
THE SAME PERSONNEL POLICIES AND PRACTICES, AND RULES AND REGULATIONS,
ARE SERVICED BY THE SAME PERSONNEL AND FISCAL OFFICES, AND ENJOY OTHER
SIMILAR TERMS AND CONDITIONS OF EMPLOYMENT AS OTHER GENERAL SCHEDULE
PROFESSIONAL EMPLOYEES OF THE ACTIVITY. FURTHER, THE RECORD REFLECTS
THAT THE MEDICAL TECHNOLOGISTS HAVE WORK CONTACTS WITH OTHER
PROFESSIONAL EMPLOYEES IN THE LABORATORY, AS WELL AS WITH OTHER
PROFESSIONAL EMPLOYEES OF THE ACTIVITY, SUCH AS PHYSICIANS, PHARMACISTS
AND THE MEDICAL LIBRARIAN. IN ADDITION, THE MEDICAL LABORATORY
TECHNOLOGISTS, AS DO OTHER PROFESSIONALS INVOLVED IN PATIENT CARE, VISIT
THE WARDS AND HAVE DIRECT CONTACT WITH THE PATIENTS IN PERFORMING THEIR
REGULAR DUTIES IN THE PATIENTS' ROOMS. IT WAS NOTED ALSO THAT THE
PETITIONER'S ALTERNATIVE PROPOSED UNIT OF MEDICAL TECHNOLOGISTS,
CHEMISTS AND MICROBIOLOGISTS IN THE MEDICAL LABORATORY, WOULD NOT
INCLUDE ALL OF THE PROFESSIONAL EMPLOYEES AT THE ACTIVITY WITHIN THESE
PARTICULAR JOB CLASSIFICATIONS, AS THERE ARE SOME 15 CHEMISTS AND 9
MICROBIOLOGISTS EMPLOYED OUTSIDE OF THE MEDICAL LABORATORY.
BASED ON THE FOREGOING CIRCUMSTANCES, I FIND THAT THE PETITIONED FOR
UNIT IS NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER
THE ORDER. THUS, IN MY VIEW, THE CLAIMED UNIT OF MEDICAL LABORATORY
TECHNOLOGISTS, OR THE ALTERNATIVE UNIT OF MEDICAL TECHNOLOGISTS,
CHEMISTS AND MICROBIOLOGISTS WITHIN THE LABORATORY, DOES NOT CONTAIN
EMPLOYEES WHO SHARE A COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM
OTHER PROFESSIONAL EMPLOYEES OF THE ACTIVITY WITH WHOM THEY SHARE COMMON
SUPERVISION, WORKING CONDITIONS AND PERSONNEL PRACTICES. MOREOVER, TO
FIND APPROPRIATE UNITS OF ONE OR SEVERAL PROFESSIONAL CLASSIFICATIONS
OUT OF SOME 25 SUCH CLASSIFICATIONS AT THE ACTIVITY COULD, IN MY
JUDGMENT, LEAD ULTIMATELY TO A MYRIAD OF SEPARATE UNITS AT THE ACTIVITY,
EACH INVOLVING EMPLOYEES IN DIFFERENT PROFESSIONAL GROUPS IN THE
PARAMEDICAL SERVICES. IN MY VIEW, THIS WOULD RESULT IN A PROLIFERATION
OF UNITS AT THE SAME FACILITY AND, CLEARLY, WOULD NOT PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. /10/
ACCORDINGLY, I FIND THAT NEITHER A UNIT OF MEDICAL LABORATORY
TECHNOLOGISTS, NOR, IN THE ALTERNATIVE, A UNIT OF MEDICAL LABORATORY
TECHNOLOGISTS AND THE CHEMISTS AND MICROBIOLOGISTS IN THE LABORATORY, IS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION AND, THEREFORE, I
SHALL ORDER THAT THE PETITION HEREIN BE DISMISSED.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 72-5037 BE, AND IT
HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
AUGUST 28, 1975
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE PETITIONER'S BRIEF WAS NOT TIMELY FILED AND, THEREFORE, WAS
NOT CONSIDERED.
/3/ THE RECORD REVEALS, IN THIS REGARD, THAT THERE ARE OTHER CHEMISTS
AND MICROBIOLOGISTS EMPLOYED BY THE ACTIVITY OUTSIDE OF THE LABORATORY.
/4/ BOTH THE ACTIVITY AND THE PETITIONER AGREED THAT MEDICAL
TECHNOLOGISTS ARE PROFESSIONAL EMPLOYEES WITHIN THE MEANING OF THE
ORDER.
/5/ IN SETTING FORTH THE ALLEGED PROFESSIONAL CLASSIFICATIONS
EMPLOYED BY THE ACTIVITY, THE PARTIES, IN ADDITION TO OMITTING THE
REGISTERED NURSES REPRESENTED BY THE CNA, DID NOT LIST MEDICAL DOCTORS
AND DENTISTS, WHO ARE CLASSIFIED AS DM&S EMPLOYEES RATHER THAN GENERAL
SCHEDULE EMPLOYEES. IN THIS REGARD, IT APPEARS THAT SUCH EMPLOYEES ARE
APPOINTED UNDER SEPARATE AND UNIQUE RULES AND REGULATIONS PURSUANT TO
TITLE 38 OF THE UNITED STATES CODE, CHAPTER 73. IN VIEW OF THE
DISPOSITION HEREIN, I FIND IT UNNECESSARY TO DETERMINE THEIR ELIGIBILITY
FOR INCLUSION OR EXCLUSION IN ANY UNIT OF PROFESSIONAL EMPLOYEES FOUND
APPROPRIATE.
/6/ THE MICROBIOLOGY UNIT IS SUPERVISED BY A MICROBIOLOGIST AND THE
CHEMISTRY UNIT BY A CHEMIST.
/7/ THE ACTIVITY HAS A SCHOOL OF TECHNOLOGY WHICH IS ACCREDITED BY
THE AMERICAN SOCIETY OF CLINICAL PATHOLOGISTS (ASCP).
/8/ OTHER COMBINATIONS OF EDUCATION AND EXPERIENCE ARE APPLICABLE TO
EMPLOYEES WHO HAVE COMPLETED THEIR EDUCATION AND EXPERIENCE PRIOR TO
JANUARY 1, 1962 AND SEPTEMBER 15, 1963, RESPECTIVELY. THE RECORD
REVEALS THAT CANDIDATES FOR GRADES GS-7 AND ABOVE (THE ACTIVITY IS NOT
NOW HIRING MEDICAL TECHNOLOGISTS BELOW GS-7) MUST HAVE EITHER
PROFESSIONAL EXPERIENCE OR A GRADUATE EDUCATION (OR AN EQUIVALENT
COMBINATION OF BOTH) IN ADDITION TO MEETING THE BASIC REQUIREMENTS.
/9/ SEE DEPARTMENT OF INTERIOR, BUREAU OF LAND MANAGEMENT, RIVERSIDE
DISTRICT AND LAND OFFICE, A/SLMR NO. 170.
/10/ CF. VETERANS ADMINISTRATION HOSPITAL, TAMPA, FLORIDA, A/SLMR NO.
330 AND VETERANS ADMINISTRATION, VETERANS ADMINISTRATION HOSPITAL,
BUFFALO, NEW YORK, A/SLMR NO. 60.
5 A/SLMR 545; P. 545; CASE NO. 41-4082(RO); AUGUST 28, 1975.
ARMY AND AIR FORCE EXCHANGE SERVICE,
POST EXCHANGE,
DEFENSE DEPOT MEMPHIS
A/SLMR NO. 545
THIS CASE INVOLVED A REPRESENTATION PETITION FILED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2501 (AFGE), SEEKING
A UNIT OF ALL NONAPPROPRIATED FUND EMPLOYEES OF THE POST EXCHANGE AT THE
DEFENSE DEPOT MEMPHIS, MEMPHIS, TENNESSEE. THE ACTIVITY CONTENDED THAT
THE PROPOSED UNIT WOULD LEAD TO FRAGMENTED COLLECTIVE BARGAINING AND
WOULD NOT PROMOTE EFFECTIVE DEALINGS OR EFFICIENCY OF AGENCY OPERATIONS,
AND THAT THE APPROPRIATE UNIT SHOULD INCLUDE ALL NONAPPROPRIATED FUND
EMPLOYEES OF THE POST EXCHANGE, BLYTHEVILLE AIR FORCE BASE, BLYTHEVILLE,
ARKANSAS, INCLUDING THE EMPLOYEES OF THE MEMPHIS POST EXCHANGE.
THE ASSISTANT SECRETARY FOUND THAT THE UNIT SOUGHT BY THE AFGE WAS
NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. IN THIS
REGARD, HE NOTED THAT THE MEMPHIS POST EXCHANGE WAS A COMPONENT OF THE
BLYTHEVILLE POST EXCHANGE, THAT THE EXCHANGE MANAGER AT BLYTHEVILLE
EXERCISED CLOSE SUPERVISORY AUTHORITY OVER BOTH EXCHANGES, THAT THERE
WERE FREQUENT VISITS FROM OTHER PERSONNEL OF THE BLYTHEVILLE EXCHANGE TO
THE MEMPHIS EXCHANGE TO HANDLE PERSONNEL AND MAINTENANCE MATTERS, THAT
JOB VACANCY ANNOUNCEMENTS WERE POSTED AT BOTH EXCHANGES, THAT THE TWO
EXCHANGES HAD SIMILAR CATEGORIES OF EMPLOYEES AND COMMON PERSONNEL
POLICIES, AND THAT LABOR RELATIONS MATTERS FOR THE MEMPHIS POST EXCHANGE
WERE HANDLED BY THE EXCHANGE MANAGER IN BLYTHEVILLE. IN THESE
CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT THE EMPLOYEES IN THE
CLAIMED UNIT DID NOT SHARE A SEPARATE AND DISTINCT COMMUNITY OF INTEREST
FROM OTHER EMPLOYEES OF THE BLYTHEVILLE POST EXCHANGE, AND THAT THE
PROPOSED FRAGMENTED UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, HE ORDERED THAT THE
PETITION BE DISMISSED.
ARMY AND AIR FORCE EXCHANGE SERVICE,
POST EXCHANGE,
DEFENSE DEPOT MEMPHIS
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2501
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER CAROL D. CARTER.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2501, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF
ALL ELIGIBLE NONAPPROPRIATED FUND EMPLOYEES OF THE POST EXCHANGE AT THE
DEFENSE DEPOT MEMPHIS, TENNESSEE. THE ACTIVITY CONTENDS THAT THE UNIT
SOUGHT IS NOT APPROPRIATE, AND THAT THE APPROPRIATE UNIT SHOULD INCLUDE
ALL NONAPPROPRIATED FUND EMPLOYEES OF THE POST EXCHANGE, BLYTHEVILLE AIR
FORCE BASE, BLYTHEVILLE, ARKANSAS, WHICH INCLUDES THE NONAPPROPRIATED
FUND EMPLOYEES OF THE POST EXCHANGE AT THE DEFENSE DEPOT MEMPHIS. IN
THE ACTIVITY'S VIEW, THE CLAIMED UNIT WOULD LEAD TO FRAGMENTED
COLLECTIVE BARGAINING AND WOULD NOT PROMOTE EFFECTIVE DEALINGS OR
EFFICIENCY OF AGENCY OPERATIONS.
THE ARMY AND AIR FORCE EXCHANGE SERVICE, WHOSE FUNCTION IS TO PROVIDE
MILITARY PERSONNEL AND OTHER AUTHORIZED PATRONS WITH CERTAIN MERCHANDISE
AND SERVICES, OPERATES A NUMBER OF INSTALLATIONS THROUGHOUT THE WORLD.
THE ALAMO EXCHANGE REGION, WHICH IS ONE OF FIVE REGIONAL EXCHANGES IN
THE CONTINENTAL UNITED STATES, HAS JURISDICTION OVER THE POST EXCHANGES
IN THE SOUTH CENTRAL UNITED STATES, AND IS SUBDIVIDED INTO SIX AREA
EXCHANGES, ONE OF WHICH IS THE LOUISIANA AREA EXCHANGE. THE POST
EXCHANGE AT BLYTHEVILLE AIR FORCE BASE IS A COMPONENT OF THE LOUISIANA
AREA EXCHANGE.
THE RECORD REVEALS THAT THE BLYTHEVILLE POST EXCHANGE HAS FOUR
SUBDIVISIONS-- THE MAIN STORE, CAFETERIA AND SERVICE STATION, ALL OF
WHICH ARE LOCATED AT THE BLYTHEVILLE AIR FORCE BASE, AND THE POST
EXCHANGE AT THE DEFENSE DEPOT MEMPHIS. THERE ARE APPROXIMATELY 45
EMPLOYEES LOCATED IN BLYTHEVILLE AND APPROXIMATELY 17 EMPLOYEES LOCATED
IN MEMPHIS. THE BLYTHEVILLE POST EXCHANGE IS HEADED BY AN EXCHANGE
MANAGER WHO, IN THIS CAPACITY, ALSO EXERCISES CONTROL OVER THE MEMPHIS
POST EXCHANGE. THUS, WHILE THERE IS A RETAIL BRANCH STORE MANAGER AT
THE MEMPHIS POST EXCHANGE, THE EVIDENCE ESTABLISHES THAT THE RETAIL
BRANCH STORE MANAGER REPORTS TO THE EXCHANGE MANAGER, AND THAT THE
EXCHANGE MANAGER HAS REVIEW AUTHORITY WITH RESPECT TO PERFORMANCE
APPRAISALS, HIRING, DISCIPLINARY ACTIONS, GRIEVANCES AND OTHER PERSONNEL
ACTIONS FOR EMPLOYEES AT THE MEMPHIS POST EXCHANGE, AND HAS EXERCISED
THIS AUTHORITY ON A NUMBER OF OCCASIONS. IN ADDITION, THE RECORD
REFLECTS THAT THE EXCHANGE MANAGER EXERCISES CLOSE CONTROL OVER THE
OPERATION OF THE MEMPHIS POST EXCHANGE AND, IN THIS REGARD, MAKES
FREQUENT VISITS AND TELEPHONE CALLS TO THE MEMPHIS POST EXCHANGE. THE
RECORD REVEALS THAT THERE IS NO PERSONNEL OFFICER AT MEMPHIS AND,
THEREFORE, THE BLYTHEVILLE POST EXCHANGE PERSONNEL SUPERVISOR MAKES
VISITS TO THE MEMPHIS POST EXCHANGE ON A ROUTINE BASIS FOR THE PURPOSE
OF CHECKING PERSONNEL RECORDS AND HANDLING OTHER PERSONNEL MATTERS.
ALSO, AS THERE IS NO MAINTENANCE EMPLOYEE AT MEMPHIS, THE MAINTENANCE
EMPLOYEE FROM THE BLYTHEVILLE POST EXCHANGE VISITS THE MEMPHIS POST
EXCHANGE TO PERFORM CERTAIN MAINTENANCE DUTIES. THE RECORD FURTHER
REVEALS THAT THE TWO POST EXCHANGES HAVE SIMILAR CATEGORIES OF
EMPLOYEES, HAVE COMMON PERSONNEL POLICIES, THAT JOB VACANCY
ANNOUNCEMENTS ARE POSTED AT BOTH EXCHANGES, AND THAT THE EXCHANGE
MANAGER, RATHER THAN THE RETAIL BRANCH STORE MANAGER IN MEMPHIS, IS
RESPONSIBLE FOR LABOR RELATIONS FOR THE MEMPHIS POST EXCHANGE.
BASED ON THE FOREGOING CIRCUMSTANCES, I FIND THAT THE PETITIONED FOR
UNIT IS NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION IN THAT
THE CLAIMED EMPLOYEES DO NOT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST SEPARATE AND DISTINCT FROM OTHER EMPLOYEES OF THE BLYTHEVILLE
POST EXCHANGE. THUS, AS NOTED ABOVE, THE EXCHANGE MANAGER AT THE
BLYTHEVILLE AIR FORCE BASE POST EXCHANGE EXERCISES CLOSE SUPERVISORY
AUTHORITY OVER BOTH EXCHANGES, THERE ARE FREQUENT VISITS FROM OTHER
PERSONNEL OF THE BLYTHEVILLE POST EXCHANGE TO THE MEMPHIS POST EXCHANGE
TO HANDLE PERSONNEL MATTERS AND MAINTENANCE FUNCTIONS, JOB VACANCY
ANNOUNCEMENTS ARE POSTED AT BOTH EXCHANGES, THE TWO EXCHANGES HAVE
SIMILAR CATEGORIES OF EMPLOYEES AND COMMON PERSONNEL POLICIES, AND LABOR
RELATIONS MATTERS FOR THE MEMPHIS POST EXCHANGE ARE HANDLED BY THE
EXCHANGE MANAGER IN BLYTHEVILLE. ACCORDINGLY, AND NOTING ALSO THAT THE
PROPOSED FRAGMENTED UNIT COULD NOT REASONABLY BE EXPECTED TO PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS, I SHALL ORDER
THAT THE PETITION HEREIN BE DISMISSED.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 41-4082(RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
AUGUST 28, 1975
5 A/SLMR 544; P. 543; CASE NO. 61-2610(CU); AUGUST 28, 1975.
DEPARTMENT OF THE ARMY,
HEADQUARTERS, FORT CARSON AND
HEADQUARTERS, FOURTH INFANTRY DIVISION (MECHANIZED)
A/SLMR NO. 544
THIS CASE INVOLVED A PETITION FOR CLARIFICATION OF UNIT (CU) FILED BY
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1345,
(AFGE), SEEKING CLARIFICATION OF THE STATUS OF AN EMPLOYEE IN THE JOB
CLASSIFICATION, THEATRE SPECIALIST, GS-9. THE ACTIVITY TOOK THE
POSITION THAT THE INCUMBENT IN THAT POSITION WAS A SUPERVISOR AND SHOULD
BE EXCLUDED FROM THE UNIT.
THE ASSISTANT SECRETARY FOUND THAT THE THEATRE SPECIALIST, GS-9, WAS
NOT A SUPERVISOR WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER. IN
THIS REGARD, HE NOTED THAT THE THEATRE SPECIALIST, GS-9, DID NOT HIRE,
DISCHARGE, RECALL OR PROMOTE OTHER EMPLOYEES, OR HAVE THE AUTHORITY TO
RECOMMEND EFFECTIVELY SUCH ACTIONS, AND THAT HE DID NOT APPROVE LEAVE OR
ADJUST GRIEVANCES. MOREOVER, IT WAS NOTED THAT SUCH ASSIGNMENTS AS HE
MADE IN THE THEATRE PRODUCTIONS WERE IN THE NATURE OF THE AUTHORITY
VESTED IN THE INCUMBENT IN HIS ARTISTIC CAPACITY, AS DISTINGUISHED FROM
A SUPERVISOR EFFECTIVELY ASSIGNING WORK IN THE INTEREST OF AN AGENCY TO
AN EMPLOYEE. ACCORDINGLY, THE ASSISTANT SECRETARY CLARIFIED THE
EXCLUSIVELY RECOGNIZED UNIT BY INCLUDING WITHIN THE UNIT THE POSITION OF
THEATRE SPECIALIST, GS-9.
DEPARTMENT OF THE ARMY,
HEADQUARTERS, FORT CARSON AND
HEADQUARTERS, FOURTH INFANTRY DIVISION (MECHANIZED) /1/
AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1345
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER PATRICIA L.
WIGGLESWORTH. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE
FREE FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
THE PETITIONER, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1345, HEREIN CALLED AFGE, WHICH IS THE EXCLUSIVELY
RECOGNIZED REPRESENTATIVE OF A UNIT OF EMPLOYEES AT FORT CARSON, FILED
THE INSTANT PETITION FOR CLARIFICATION OF UNIT (CU) SEEKING TO CLARIFY
THE STATUS OF AN EMPLOYEE IN THE JOB CLASSIFICATION OF THEATRE
SPECIALIST, GS-9, WHO THE ACTIVITY ASSERTS IS A SUPERVISOR WITHIN THE
MEANING OF SECTION 2(C) OF THE ORDER AND, THEREFORE, SHOULD BE EXCLUDED
FROM THE EXCLUSIVELY RECOGNIZED UNIT.
THE RECORD REVEALS THAT THE INCUMBENT IN THE POSITION OF THEATRE
SPECIALIST, GS-9, IS ASSIGNED TO THE FORT CARSON LITTLE THEATRE WHICH IS
A SUBPROGRAM OF THE ACTIVITY'S MUSIC AND THEATRE BRANCH OF THE
RECREATION SERVICES DIVISION. THE LITTLE THEATRE IS RESPONSIBLE FOR
PROVIDING INSTRUCTION IN VARIOUS ASPECTS OF THEATRE WORK AND TECHNICAL
SUPPORT, ASSISTANCE AND GUIDANCE TO OTHER GROUPS AT FORT CARSON.
THE POSITION OF THEATRE SPECIALIST, GS-9, IS ONE OF TWO CIVILIAN
POSITIONS IN THE LITTLE THEATRE. THUS, ALSO ASSIGNED TO THE LITTLE
THEATRE IS A THEATRE SPECIALIST (TECHNICAL), GS-7. BOTH OF THE
INCUMBENTS IN THESE POSITIONS ARE UNDER THE DIRECT SUPERVISION OF THE
DIRECTOR OF THE MUSIC AND THEATRE BRANCH. IN ADDITION TO THESE TWO
EMPLOYEES, ONE OR MORE MILITARY PERSONNEL MAY BE ASSIGNED TO THE LITTLE
THEATRE ON A TEMPORARY BASIS.
THE EVIDENCE ESTABLISHES THAT THE THEATRE SPECIALIST, GS-9, AND THE
THEATRE SPECIALIST (TECHNICAL), GS-7, WORK CLOSELY TOGETHER IN THE
PRODUCTION OF PLAYS, AND THAT THE DIRECTOR OF THE MUSIC AND THEATRE
BRANCH MAY ASSIGN EITHER TO SERVE AS THE DIRECTOR OF A PARTICULAR PLAY.
THE RECORD TESTIMONY REVEALS THAT THE THEATRE SPECIALIST, GS-9, DOES NOT
HAVE THE AUTHORITY TO HIRE, DISCHARGE, RECALL OR PROMOTE ANY OTHER
EMPLOYEE OR TO MAKE EFFECTIVE RECOMMENDATIONS WITH RESPECT TO SUCH
MATTERS. NOR DOES THE THEATRE SPECIALIST, GS-9, APPROVE LEAVE OR ADJUST
GRIEVANCES. THE EVIDENCE FURTHER ESTABLISHES THAT THE THEATRE
SPECIALIST, GS-9, ASSIGNS WORK ONLY IN HIS CAPACITY AS THE DIRECTOR OF A
PARTICULAR PLAY, AND, AS NOTED ABOVE, THE THEATRE SPECIALIST
(TECHNICAL), GS-7, MAY ALSO SERVE AS THE DIRECTOR OF A PLAY AND, IN THIS
REGARD, WOULD HAVE THE SAME PREROGATIVES OF ASSIGNING WORK WHILE SERVING
IN THIS CAPACITY.
UNDER ALL OF THESE CIRCUMSTANCES, I FIND THAT THE THEATRE SPECIALIST,
GS-9, IS NOT A SUPERVISOR WITHIN THE MEANING OF SECTION 2(C) OF THE
ORDER. AS NOTED ABOVE, THE RECORD REVEALS THAT THE EMPLOYEE IN THIS JOB
CLASSIFICATION DOES NOT HIRE, DISCHARGE, RECALL OR PROMOTE OTHER
EMPLOYEES, OR HAVE THE AUTHORITY TO RECOMMEND EFFECTIVELY SUCH ACTIONS.
NOR DOES HE APPROVE LEAVE OR ADJUST GRIEVANCES. MOREOVER, SUCH
ASSIGNMENTS OF WORK AS THE INCUMBENT MAY MAKE WITH RESPECT TO
INDIVIDUALS WHO PARTICIPATE IN A LITTLE THEATRE PRODUCTION ARE IN THE
NATURE OF THE AUTHORITY VESTED IN A THEATRE DIRECTOR IN HIS ARTISTIC
CAPACITY, AS DISTINGUISHED FROM A SUPERVISOR EFFECTIVELY ASSIGNING WORK
IN THE INTEREST OF AN AGENCY TO AN EMPLOYEE. ACCORDINGLY, AS THE
THEATRE SPECIALIST, GS-9, IS NOT A SUPERVISOR WITHIN THE MEANING OF
SECTION 2(C) OF THE ORDER, I SHALL ORDER THE EXCLUSIVELY RECOGNIZED UNIT
BE CLARIFIED TO INCLUDE THE EMPLOYEE IN THIS CLASSIFICATION IN THE
EXCLUSIVELY RECOGNIZED UNIT.
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, IN
WHICH EXCLUSIVE RECOGNITION WAS GRANTED TO THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1345, ON MAY 18, 19-7, AT FORT
CARSON, COLORADO, BE, AND IT HEREBY IS, CLARIFIED BY INCLUDING IN SAID
UNIT THE POSITION OF THEATRE SPECIALIST, GS-9.
DATED, WASHINGTON, D.C.
AUGUST 28, 1975
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
5 A/SLMR 543; P. 530; CASE NO. 22-5183(CA); JULY 31, 1975.
DEPARTMENT OF NAVY,
NAVAL AIR REWORK FACILITY
A/SLMR NO. 543
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY LODGE
39, DISTRICT 74, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO, (IAM) ALLEGING THAT THE DEPARTMENT OF NAVY, NAVAL AIR
REWORK FACILITY (RESPONDENT) VIOLATED SECTION 19(A)(1) AND (2) OF THE
ORDER BY PREPARING AND THEN CANCELLING A PROPOSED 10 DAY SUSPENSION OF
UNION REPRESENTATIVE COET COMBS FOR DISTRIBUTING CERTAIN UNION
LITERATURE, WARNING OTHER UNION REPRESENTATIVES AS A RESULT OF THEIR
PARTICIPATING IN THE DISTRIBUTION OF THE LITERATURE, AND ISSUING A
LETTER OR REPRIMAND TO COMBS FOR FAILING TO APPEAR IN A SUPERVISOR'S
OFFICE WHEN REQUESTED TO DO SO BY THE SUPERVISOR. THE RESPONDENT
CONTENDED, AMONG OTHER THINGS, THAT THE LITERATURE IN QUESTION WAS
SCURRILOUS AND LIBELOUS AND ITS DISTRIBUTION, THEREFORE, WAS NOT
PROTECTED CONDUCT.
THE ASSISTANT SECRETARY FOUND, IN AGREEMENT WITH THE ADMINISTRATIVE
LAW JUDGE, THAT THE DISTRIBUTION OF THE LITERATURE IN QUESTION WAS A
PROTECTED ACTIVITY AND THAT THE RESPONDENT'S ORAL WARNINGS TO THE UNION
STEWARDS BASED ON THEIR CONDUCT IN DISTRIBUTING SUCH LITERATURE VIOLATED
SECTION 19(A)(1) OF THE ORDER.
FURTHER, THE ASSISTANT SECRETARY FOUND THAT, ALTHOUGH THE RESPONDENT
DID NOT IMMEDIATELY CARRY OUT ITS EXPRESSED INTENTIONS TO SUSPEND COMBS,
AS EVIDENCED BY ITS NOTICE OF INTENTION TO SUSPEND COMBS ON OCTOBER 16,
1973, BASED ON HIS INVOLVEMENT IN THE DISTRIBUTION OF THE LITERATURE IN
QUESTION, THE THREAT OF SUCH ACTION HAD THE EFFECT OF IMPROPERLY
INTERFERING WITH, RESTRAINING AND COERCING COMBS IN THE EXERCISE OF
ACTIVITY PROTECTED BY THE ORDER. CONSEQUENTLY, HE FOUND THAT THE
RESPONDENT'S OCTOBER 16, 1973, NOTICE OF INTENTION TO SUSPEND COMBS
CONSTITUTED AN INDEPENDENT VIOLATION OF SECTION 19(A)(1) OF THE ORDER.
THE ASSISTANT SECRETARY ALSO FOUND, IN AGREEMENT WITH THE
ADMINISTRATIVE LAW JUDGE, THAT THE LETTER OF REPRIMAND ISSUED TO COMBS
BY RESPONDENT FOR HIS FAILURE TO REPORT PROMPTLY TO HIS SUPERVISOR'S
OFFICE AS REQUESTED ON SEPTEMBER 28, 1973, DID NOT VIOLATE SECTION
19(A)(1) OF THE ORDER AS THERE WAS NO CONNECTION BETWEEN THIS EVENT AND
THE FLYER DISTRIBUTION AND THERE WAS INSUFFICIENT EVIDENCE TO INDICATE
THAT THERE WAS ANY ANTI-UNION MOTIVATION IN THE ISSUANCE OF THE SAID
REPRIMAND.
FINALLY, THE ASSISTANT SECRETARY FOUND, IN AGREEMENT WITH THE
ADMINISTRATIVE LAW JUDGE, THAT THE EVIDENCE HEREIN DID NOT SUPPORT A
VIOLATION OF SECTION 19(A)(2) OF THE ORDER AS ALLEGED IN THE COMPLAINT.
DEPARTMENT OF NAVY,
NAVAL AIR REWORK FACILITY
AND
LODGE 39, DISTRICT 74,
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, AFL-CIO
ON JANUARY 14, 1975, ADMINISTRATIVE LAW JUDGE MILTON KRAMER ISSUED
HIS REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES AND
RECOMMENDING THAT IT TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN THE
ATTACHED ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS.
THEREAFTER, THE RESPONDENT AND THE COMPLAINANT FILED EXCEPTIONS AND
SUPPORTING BRIEFS WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S REPORT
AND RECOMMENDATIONS.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
RESPONDENT'S AND THE COMPLAINANT'S EXCEPTIONS AND SUPPORTING BRIEFS, I
HEREBY ADOPT THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, /1/ CONCLUSIONS
AND RECOMMENDATIONS, EXCEPT AS MODIFIED BELOW.
A PORTION OF THE INSTANT COMPLAINT ALLEGING THAT THE RESPONDENT'S
OCTOBER 16, 1973, PROPOSAL TO SUSPEND EMPLOYEE COMBS FOR 10 DAYS
VIOLATED SECTION 19(A)(1) OF THE ORDER WAS NOT RULED UPON SPECIFICALLY
BY THE ADMINISTRATIVE LAW JUDGE. THE RECORD IN THIS REGARD DISCLOSES
THAT ON OCTOBER 16, 1973, JOHN B. CHERRY, THE RESPONDENT'S PRODUCTION
DEPARTMENT HEAD, SENT COMBS A NOTICE OF AN INTENTION TO SUSPEND THE
LATTER FOR A PERIOD OF 10 DAYS FOR DISTRIBUTING AND CAUSING TO BE
DISTRIBUTED ON SEPTEMBER 20, 1973, A HANDBILL KNOWN AS THE "CAUTION
FLYER" WHICH THE RESPONDENT CONSIDERED TO BE SCURRILOUS AND LIBELOUS.
ON NOVEMBER 6, 1973, COMBS RECEIVED A NOTICE FROM CHERRY CANCELLING THE
PREVIOUS OCTOBER 16, 1973, NOTICE. /2/
THE ADMINISTRATIVE LAW JUDGE FOUND, AND I CONCUR, THAT UNDER THE
CIRCUMSTANCES HEREIN, THE DISTRIBUTION OF THE "CAUTION FLYER" WAS A
PROTECTED ACTIVITY AND THAT, THEREFORE, ANY RETALIATION BY THE
RESPONDENT AS A RESULT OF THE DISTRIBUTION OF THE FLYER WOULD BE
VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER. ALTHOUGH, AS NOTED ABOVE,
THE RESPONDENT DID NOT IMMEDIATELY CARRY OUT ITS EXPRESSED INTENTION TO
SUSPEND COMBS BASED ON HIS INVOLVEMENT IN THE DISTRIBUTION OF THE FLYER,
I FIND THAT THE THREAT OF SUCH ACTION HAD THE EFFECT OF IMPROPERLY
INTERFERING WITH, RESTRAINING, OR COERCING HIM IN THE EXERCISE OF
ACTIVITY PROTECTED BY THE ORDER. ACCORDINGLY, I CONCLUDE THAT THE
OCTOBER 16, 1973, NOTICE OF INTENTION TO SUSPEND COMBS CONSTITUTED AN
INDEPENDENT VIOLATION OF SECTION 19(A)(1) OF THE ORDER.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE NAVAL AIR REWORK
FACILITY OF THE DEPARTMENT OF NAVY, NORFOLK, VIRGINIA, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES COET COMBS
RAYMOND J. POTTS
CHARLES E. SCHWARTZ HARRY H. THIEDE WILLIAM R. ROBINSON CAROLYN M.
YORK CHARLES E. BOZOTI
HURSEL N. WIGGINS IVAN W. PEARCE JACK E. MOSEMAN WILLIAM O. PARKS
VERNON L. PATTERSON HENRY
R. DEFELICE WORTH W. COX , OR ANY OTHER EMPLOYEE, BY GIVING ORAL OR
WRITTEN WARNINGS OR OTHERWISE DISCOURAGING THEM IN THE DISTRIBUTION OF
LEGITIMATE LITERATURE ON BEHALF OF A LABOR ORGANIZATION.
(B) THREATENING TO SUSPEND EMPLOYEE COET COMBS, OR ANY OTHER
EMPLOYEE, FOR DISTRIBUTING OR CAUSING TO BE DISTRIBUTED LEGITIMATE
LITERATURE ON BEHALF OF A LABOR ORGANIZATION.
(C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER:
(A) RESCIND AND EXPUNGE ANY NOTATION OR REFERENCE IN ANY RECORDS,
PERMANENT OR TEMPORARY, IF ANY SUCH NOTATION OR RECORD EXISTS, OF THE
WARNING GIVEN THE EMPLOYEES NAMED IN PARAGRAPH 1(A) OF THIS ORDER IN
NOVEMBER 1973 BECAUSE OF THEIR DISTRIBUTION OF ALLEGEDLY LIBELOUS OR
SCURRILOUS LITERATURE.
(B) POST AT ITS FACILITY AT THE NAVAL AIR REWORK FACILITY, NORFOLK,
VIRGINIA, COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS. UPON
RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDING OFFICER
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 ASSURE THAT SUCH
NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE COMPLAINT, INSOFAR AS IT ALLEGES
ADDITIONAL VIOLATIONS OF SECTION 19(A)(1) AND VIOLATIONS OF SECTION
19(A)(2) OF EXECUTIVE ORDER 11491, AS AMENDED, BE, AND IT HEREBY IS,
DISMISSED.
DATED, WASHINGTON, D.C.
JULY 31, 1975
/1/ ON PAGE 5 OF HIS REPORT AND RECOMMENDATIONS, THE ADMINISTRATIVE
LAW JUDGE INADVERTENTLY INDICATED THAT EMPLOYEE COET COMBS GAVE J. B.
SULLIVAN, THE ADMINISTRATIVE DEPARTMENT HEAD, A COPY OF A HANDBILL,
WHICH THE COMPLAINANT WAS GOING TO DISTRIBUTE, ON DECEMBER 19, 1973,
RATHER THAN ON SEPTEMBER 19, 1973. THIS INADVERTENT ERROR IS HEREBY
CORRECTED.
/2/ THE PROPOSAL TO SUSPEND COMBS WAS REINSTATED ON NOVEMBER 30,
1973, AND WAS APPROVED ON DECEMBER 17, 1973, WHICH RESULTED IN COMBS'
SUSPENSION FROM JANUARY 7 THROUGH JANUARY 18, 1974. AS THE ACTUAL
SUSPENSION OF COMBS WAS NOT INCLUDED IN THE INSTANT COMPLAINT, THIS
MATTER IS NOT BEFORE ME AND I MAKE NO DETERMINATION AS TO WHETHER OR NOT
THE RESPONDENT'S CONDUCT IN THIS REGARD VIOLATED THE ORDER.
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES RAYMOND J.
POTTS, CHARLES E. SCHWARTZ, HARRY H. THIEDE, WILLIAM R. ROBINSON,
CAROLYN M. YORK, CHARLES E. BOZOTI, HURSEL N. WIGGINS, IVAN W. PEARCE,
JACK E. MOSEMAN, WILLIAM O. PARKS, VERNON L. PATTERSON, HARRY R.
DEFELICE, WORTH W. COX, COET COMBS, OR ANY OTHER EMPLOYEE, BY GIVING
WRITTEN WARNINGS OR OTHERWISE DISCOURAGING THEM IN THE DISTRIBUTION OF
LEGITIMATE LITERATURE ON BEHALF OF A LABOR ORGANIZATION.
WE WILL NOT THREATEN TO SUSPEND EMPLOYEE COET COMBS, OR ANY OTHER
EMPLOYEE, FOR DISTRIBUTING OR CAUSING TO BE DISTRIBUTED LEGITIMATE
LITERATURE ON BEHALF OF A LABOR ORGANIZATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY OF OUR EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL RESCIND AND WILL EXPUNGE ANY NOTATION OF, AND ANY REFERENCE
TO, WARNINGS GIVEN TO THE EMPLOYEES, NAMED ABOVE, IN NOVEMBER 1973
BECAUSE OF THEIR DISTRIBUTION OF LITERATURE ON BEHALF OF A LABOR
ORGANIZATION.
DATED . . . BY . . .
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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR, WHOSE ADDRESS IS: 14120 GATEWAY BUILDING, 3535 MARKET STREET,
PHILADELPHIA, PENNSYLVANIA 19104.
IN THE MATTER OF
DEPARTMENT OF NAVY
NAVAL AIR REWORK FACILITY
AND
LODGE 39 DISTRICT 74,
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, AFL-CIO
LOUIS P. POULTON, ESQ.
ASSOCIATE GENERAL COUNSEL, IAM
1300 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20036
LOUIS P. SMITH
6500 PEARL ROAD
CLEVELAND, OHIO 44130
STUART M. FOSS, ESQ.
OFFICE OF CIVILIAN MANPOWER MANAGEMENT
DEPARTMENT OF THE NAVY
1735 N. LYNN STREET
ARLINGTON (ROSSLYN), VIRGINIA 22209
BEFORE: MILTON KRAMER
STATEMENT OF THE CASE . . . 2
FACTS . . . 3
GENERAL . . . 3
THE "CAUTION" FLYER . . . 5
THE ORAL WARNINGS TO THE STEWARDS . . . 6
THE LETTER OF REPRIMAND TO THE CHAIRMAN OF THE SHOP COMMITTEE . . . 7
DISCUSSION AND CONCLUSIONS . . . 8
THE DISTRIBUTION OF THE "CAUTION" FLYER WAS A PROTECTED COMMUNICATION
. . . 8
THE ORAL WARNINGS TO THE STEWARDS . . . 14
THE LETTER OF REPRIMAND . . . 14
THE PROVISION OF THE EXECUTIVE ORDER VIOLATED . . . 16
THE REMEDY . . . 17
PROPOSED ORDER . . . 18
PROPOSED NOTICE . . . APPENDIX
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491 AS AMENDED. THE
COMPLAINT WAS FILED JANUARY 21, 1974 ALLEGING VIOLATIONS OF SUBSECTIONS
19(A)(1) AND (2) OF THE EXECUTIVE ORDER. THE VIOLATIONS WERE ALLEGED TO
CONSIST OF PROPOSING AND THEN CANCELLING A PROPOSED 10-DAY SUSPENSION OF
UNION REPRESENTATIVE COET COMBS FOR DISTRIBUTING CERTAIN UNION
LITERATURE, WARNING OTHER UNION REPRESENTATIVES FOR PARTICIPATING IN THE
DISTRIBUTION OF THE LITERATURE, AND ISSUING A LETTER OF REPRIMAND TO
COMBS FOR FAILING TO APPEAR IN A SUPERVISOR'S OFFICE WHEN REQUESTED TO
DO SO BY THE SUPERVISOR.
ON JANUARY 28, 1974, COUNSEL FOR THE COMPLAINANT WROTE A LETTER TO
THE AREA ADMINISTRATOR TO ADD AN ALLEGATION TO THE COMPLAINT THAT COMBS
WAS SUSPENDED WITHOUT PAY FOR THE DAYS FROM JANUARY 7 THROUGH JANUARY 18
FOR HIS PARTICIPATION IN THE DISTRIBUTION OF THE LITERATURE, AND
CORRECTING CERTAIN MECHANICAL AND TYPOGRAPHICAL ERRORS IN THE COMPLAINT.
ON JANUARY 30, 1974 THE ACTING ASSISTANT AREA ADMINISTRATOR WROTE TO
COMPLAINANT'S COUNSEL REJECTING THE AMENDMENT TO THE COMPLAINT ALLEGING
THE SUSPENSION FROM JANUARY 7 THROUGH JANUARY 18, 1974, BECAUSE IT HAD
NOT APPEARED IN THE CHARGE TO THE RESPONDENT. /1/ (THE ALLEGED
SUSPENSION HAD TERMINATED THREE DAYS BEFORE THE FILING OF THE
COMPLAINT.) HE ACCEPTED THE OTHER AMENDMENTS TO THE COMPLAINT. /2/ THE
REJECTED AMENDMENT WAS NOT AGAIN OFFERED, AT THE HEARING OR OTHERWISE.
ACCORDINGLY, THE SIGNIFICANCE OF THE SUSPENSION IS NOT BEFORE ME AND IS
NOT CONSIDERED, /3/ ALTHOUGH THE PARTIES STIPULATED THAT IT OCCURRED.
ON FEBRUARY 15, 1974, THE RESPONDENT ANSWERED THE COMPLAINT
CONTENDING THAT THE LITERATURE IN QUESTION WAS SCURRILOUS AND LIBELOUS
AND, IN LIGHT OF ITS HISTORY, INTENDED TO RENDER MORE BURDENSOME THE
CONDUCT OF RESPONDENT'S PUBLIC BUSINESS, AND ITS DISTRIBUTION,
THEREFORE, WAS NOT PROTECTED CONDUCT.
THE AREA ADMINISTRATOR INVESTIGATED THE COMPLAINT AND REPORTED TO THE
ASSISTANT REGIONAL DIRECTOR. PURSUANT TO AN AMENDED NOTICE OF HEARING
ISSUED BY THE ASSISTANT REGIONAL DIRECTOR ON JUNE 6, 1974, HEARINGS WERE
HELD IN NORFOLK, VIRGINIA ON JULY 23, 24, AND 25. BOTH PARTIES WERE
REPRESENTED BY COUNSEL.
AT THE CONCLUSION OF THE HEARING THE TIME FOR FILING BRIEFS WAS
EXTENDED TO SEPTEMBER 4, 1974 AND THEREAFTER, PURSUANT TO JOINT REQUEST
OF THE PARTIES, WAS FURTHER EXTENDED TO SEPTEMBER 18, 1974. BOTH
PARTIES FILED TIMELY BRIEFS.
THE RESPONDENT IS ONE OF THE ACTIVITIES OF THE NAVAL AIR SYSTEMS
COMMAND THAT PERFORMS THE MAINTENANCE, OVERHAUL, AND REPAIR ("REWORK")
OF NAVAL AIRCRAFT AND ITS VARIOUS COMPONENTS. IT HAS ABOUT 4,600
EMPLOYEES IN VARIOUS CRAFTS AND CLASSES OF WHOM ABOUT 3,600 ARE
REPRESENTED FOR PURPOSES OF EXECUTIVE ORDER 11491 BY THE COMPLAINANT
LOCAL 39. THE OTHER 1,000 CIVILIAN EMPLOYEES ARE REPRESENTED BY VARIOUS
LABOR ORGANIZATIONS. SINCE A SUBSTANTIAL PART OF THE RESPONDENT'S WORK
ON THE AIRPLANES HAS TO BE DONE "ON SITE", WHERE THE PLANES ARE WHEN
THEY NEED WORK ON THEM, TEMPORARY DUTY TRAVEL ("TDY") IS OFTEN REQUIRED,
AND MOST OF THE JOB DESCRIPTIONS STATE THAT TRAVEL IS REQUIRED. TDY
DETAILS VARY IN DURATION FROM A FEW DAYS TO SEVERAL MONTHS. ALTHOUGH
THE RESPONDENT HAS THE RIGHT TO DETAIL EMPLOYEES TO TDY REGARDLESS OF
THEIR WISHES, IT MAINTAINS A ROSTER OF EMPLOYEES WHO VOLUNTEER FOR THAT
PURPOSE IN THE BELIEF THAT DETAILING VOLUNTEERS IS MORE CONDUCIVE TO
HIGHER MORALE AND BETTER WORK. ONLY ONCE IN RECENT YEARS HAS THE
RESPONDENT HAD TO SEND EMPLOYEES ON TDY WHO HAD NOT VOLUNTEERED FOR THAT
PURPOSE.
AROUND THE MIDDLE OF SEPTEMBER 1972, TWO GROUPS OF EMPLOYEES
REPRESENTED BY THE COMPLAINANT WERE SENT ON TDY, NINE OF THEM TO
PENSACOLA, FLORIDA AND FORTY-SEVEN TO DALLAS, TEXAS. THE DETAIL SENT TO
PENSACOLA RETURNED AROUND CHRISTMAS, 1972. THE DETAIL TO DALLAS
RETURNED AT VARIOUS TIMES, THE LAST OF THEM EARLY IN APRIL 1973.
WHEN THE EMPLOYEES DETAILED TO PENSACOLA RETURNED TO NORFOLK, SOME
DISAGREEMENTS AROSE CONCERNING THEIR PER DIEM ALLOWANCE. THEY HAD
OBTAINED LODGING AT A MOTEL. A DAY OR TWO AFTER CHECKING IN, THEY HAD
PERSUADED THE MOTEL OWNER TO REDUCE THEIR COST BY TWO DOLLARS PER DAY.
THEIR TRAVEL VOUCHERS WERE DISALLOWED BY THAT AMOUNT, AND PERHAPS THEY
WERE REBUKED. THEIR CHIEF STEWARD (WHO AT THE TIME OF THE HEARING IN
THIS CASE WAS LOCAL PRESIDENT) WROTE A MEMORANDUM TO THE SHOP STEWARDS
CAPTIONED:
IN THAT MEMORANDUM THE CHIEF STEWARD, CHARLES E. BOZOTI, STATED THE
FOREGOING FACTS, ARGUED THAT THE MEN DESERVED THE TWO DOLLARS PER DAY
BECAUSE THE SAVING WAS BROUGHT ABOUT BY THEIR EFFORTS, DECRIED THE
CLAIMED LACK OF RECOGNITION OF THE FINE WORK DONE BY MEN DETAILED TO TDY
AND THEIR AWAY-FROM-HOME HARDSHIPS, AND PREDICTED THAT IF SITUATIONS
AROSE AGAIN AS AFTER THE PENSACOLA TRIP THERE WOULD BE NO VOLUNTEERS FOR
TDY. /4/ SOME OF THE SHOP STEWARDS POSTED THE MEMORANDUM ON UNION
BULLETIN BOARDS. NO DISCIPLINARY OR OTHER ACTION WAS TAKEN AS A RESULT
OF THE MEMORANDUM AND ITS POSTING. BOZOTI TOLD A SUPERVISOR IN THE
HEARING OF OTHERS THAT HE WAS GOING TO ADVISE THE MEN TO STOP
VOLUNTEERING FOR TDY, BUT IN FACT HE DID NOT DO SO AND NEITHER HE NOR
ANYONE ELSE REMOVED HIS NAME FROM THE LIST OF VOLUNTEERS FOR TDY.
AT THE TIME THE EMPLOYEES LEFT ON THE DALLAS TDY, THE GOVERNING
TRAVEL REGULATIONS (D.O.D. JOINT TRAVEL REGULATIONS) PERMITTED $25 PER
DIEM FOR LODGING AND MEALS AND AN EMPLOYEE WAS PERMITTED HIS AVERAGE
COST NOT TO EXCEED $13.20 PER DAY FOR LODGING. NO RECEIPTS WERE
REQUIRED BUT AN EMPLOYEE MIGHT BE REQUIRED TO JUSTIFY HIS CLAIM FOR
REIMBURSEMENT. THE PRACTICE BY RESPONDENT NORMALLY WAS NOT TO REQUIRE
JUSTIFICATION FOR LODGING EXPENSE IF THE AVERAGE COST DID NOT EXCEED
$13.20 PER DAY.
IN DECEMBER 1972, AFTER THE EMPLOYEES HAD LEFT FOR DALLAS, THE TRAVEL
REGULATIONS WERE AMENDED TO REQUIRE EMPLOYEES TO STATE THEIR ACTUAL COST
OF LODGING AND TO PROVIDE THAT RECEIPTS MIGHT BE REQUIRED.
THE CHANGES IN THE JOINT TRAVEL REGULATIONS WERE RECEIVED BY THE
RESPONDENT EARLY IN JANUARY 1973. THAT MONTH THE RESPONDENT'S EXECUTIVE
OFFICER, COMMANDER WALTER J. ZABORNIAK, HAD A MEETING WITH
REPRESENTATIVES OF THE LABOR ORGANIZATIONS THAT REPRESENTED RESPONDENT'S
EMPLOYEES TO TELL THEM ABOUT THE CHANGES IN THE REGULATIONS. IT WAS
DECIDED THAT EACH EMPLOYEE WOULD BE GIVEN A SET OF INSTRUCTIONS WITH HIS
TRAVEL VOUCHERS WHEN HE LEFT ON A TRIP. AT THE SUGGESTION OF THE THEN
PRESIDENT OF THE COMPLAINANT, THE CHANGES WERE PRINTED IN BOLDER TYPE
AND THE NEW INFORMATION WAS SENT TO EACH PERSON THEN ON TDY. THE NEW
MATERIAL HAD A COVER PAGE PRINTED IN LARGE CAPITAL LETTERS IN RED INK.
THE FIRST LINE HAD THE CAPTION "CAUTION" AND THE SECOND LINE WAS
"IMPORTANT NOTICE". THE REST OF THE FIRST PAGE, IN THE SAME LARGE TYPE
IN RED INK, CAUTIONED AGAINST POSSIBLE DISCIPLINARY ACTION FOR
FRAUDULENT TRAVEL CLAIMS, STATED THAT THERE WOULD BE SPOT CHECKS FOR
COMPLETE VERIFICATION OF TRAVEL CLAIMS IN WHICH RECEIPTS FOR LODGING
MIGHT BE REQUIRED, AND ADVISED THAT TRAVELLERS CLAIM ONLY THE AMOUNTS
ACTUALLY EXPENDED FOR LODGING AND RETAIN LODGING RECEIPTS UNTIL THE
CLAIM WAS PROCESSED. /5/
IN APRIL 1973 COMMANDER ZABORNIAK WAS ADVISED BY THE TRAVEL SECTION
THAT ONE OF THE EMPLOYEES IN THE DALLAS TDY DETAIL HAD SUBMITTED A
TRAVEL REIMBURSEMENT CLAIM FOR LODGING EXPENSES MUCH LOWER THAN THE
OTHERS. ZABORNIAK REQUESTED THE TRAVEL SECTION TO CHECK THE LODGING
CLAIMS. THREE EMPLOYEES IN THE TRAVEL SECTION CALLED THE PLACES AT
WHICH THE DALLAS TDY EMPLOYEES HAD STAYED AND ASKED WHAT THE CHARGES HAD
BEEN AND FOR COPIES OF RECEIPTS. SOME REFUSED TO GIVE ANY INFORMATION
BUT OTHERS GAVE INFORMATION SHOWING THAT MANY CLAIMS FOR LODGING WERE
GREATER THAN THE COSTS. WHEN IT APPEARED TO ZABORNIAK THAT THERE WAS A
LARGE DISCREPANCY IN THE AMOUNTS CLAIMED AND THE ACTUAL LODGING COSTS,
HE SENT SECURITY OFFICER NOEL TO DALLAS TO OBTAIN FURTHER INFORMATION.
NOEL RETURNED FROM DALLAS IN JUNE 1973 AND REPORTED TO ZABORNIAK THAT
THE LODGING CLAIMS WERE GREATLY IN EXCESS OF THE ACTUAL COSTS.
ZABORNIAK SEVERAL TIMES DISCUSSED THE MATTER WITH COMBS AND THE BUSINESS
REPRESENTATIVE OF THE COMPLAINANT, WILLIAM BARNES, WHO ARGUED THAT IN
THE PAST THE PER DIEM HAD BEEN A FLAT $25 PER DAY AND NOBODY HAD BEEN
CONCERNED ABOUT HOW OR WHETHER IT HAD BEEN SPENT, AND THAT THE MATTER
SHOULD BE FORGOTTEN. ZABORNIAK TOOK THE POSITION THAT THERE HAD TO BE
COMPLIANCE WITH THE NEW REGULATIONS, AND REQUESTED EACH OF THE EMPLOYEES
INVOLVED IN THE DISCREPANCIES TO VERIFY HIS CLAIM. TWO EMPLOYEE CLAIMS
WERE PAID ON THE BASIS OF THE ORIGINAL TRAVEL VOUCHER, MOST OF THE REST
WERE PAID ON THE SECOND VOUCHER, A SUBSTANTIAL NUMBER HAD TO FILE A
THIRD CLAIM, AND A FEW HAD TO FILE FOUR OR FIVE TIMES. AT THE TIME OF
THE HEARING A FEW OF THE CLAIMS WERE STILL BEING QUESTIONED BY THE
NAVY'S REGIONAL FINANCE CENTER.
ON DECEMBER 19, 1973, AT ABOUT 3:10 P.M., COET COMBS, THE THEN
CHAIRMAN OF THE UNION SHOP COMMITTEE, GAVE J. B. SULLIVAN, THE
ADMINISTRATIVE DEPARTMENT HEAD, A COPY OF A HANDBILL THE COMPLAINANT WAS
GOING TO DISTRIBUTE THE NEXT MORNING TO THE EMPLOYEES IT REPRESENTED AS
THEY WERE COMING TO WORK. MR. SULLIVAN SHOWED THE HANDBILL TO THE
COMMANDING OFFICER OF RESPONDENT, CAPTAIN E. F. SHINE, JR. AT ABOUT
3:55 P.M. SULLIVAN GAVE COMBS A MEMORANDUM TO COMBS FROM CAPTAIN SHINE
STATING THAT SHINE CONSIDERED THE FLYER SCURRILOUS AND LIBELOUS AND IN
VIOLATION OF PARAGRAPH 8(C) OF NARF INSTRUCTION 12721.1.
THAT SECTION OF THE LOCAL INSTRUCTION /6/ PROVIDES THAT LITERATURE
DISTRIBUTED ON BEHALF OF A LABOR ORGANIZATION MUST NOT CONTAIN
SCURRILOUS OR LIBELOUS MATERIAL AND THAT EMPLOYEES DISTRIBUTING
LITERATURE WOULD BE HELD RESPONSIBLE FOR ADHERING TO THAT RESTRICTION.
THE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE COMPLAINANT AND THE
RESPONDENT PROVIDES /7/ THAT ITEMS TO BE POSTED ON UNION BULLETIN BOARDS
WOULD BE SUBMITTED TO THE CIVILIAN PERSONNEL DEPARTMENT TWENTY-FOUR
HOURS PRIOR TO POSTING AND THAT THE CHAIRMAN OF THE SHOP COMMITTEE WOULD
BE RESPONSIBLE THAT NOTHING WOULD BE POSTED THAT "CONTAINS SCURRILOUS OR
LIBELOUS ATTACKS AGAINST THE EMPLOYER, INDIVIDUALS OR ACTIVITIES OF THE
FEDERAL GOVERNMENT."
COMBS HAD MADE ARRANGEMENTS WITH THIRTEEN SHOP STEWARDS (INCLUDING
CHIEF STOP STEWARDS) TO MEET THE NEXT MORNING AND DISTRIBUTE THE
HANDBILL TO THE EMPLOYEES AS THEY WERE COMING TO WORK. THE NEXT
MORNING, SEPTEMBER 20, 1973, AT ABOUT 5:45 A.M., COMBS AND THE THIRTEEN
STEWARDS MET AND DISTRIBUTED THE HANDBILL IN NON-WORK AREAS DURING
NON-WORK TIME.
THE HANDBILL THAT WAS DISTRIBUTED ON THIS OCCASION WAS FROM THE
COMPLAINANT ADDRESSED TO "ALL WAGE GRADE (BLUE COLLAR) EMPLOYEES, NARF,
NORFOLK." IT WAS CAPTIONED "CAUTION..." IT WAS A ONE-PAGE FLYER. IT
RECITED THE COMPLAINANT'S VERSION OF THE LODGING DISAGREEMENT PERTAINING
TO THE DALLAS TDY, AND NEAR THE END STATED:
"SOME MONTHS AGO THE COMMANDING OFFICER STATED HE WAS IN FAVOR OF THE
$25.00 MAXIMUM PER
DIEM FOR CIVILIAN EMPLOYEES ON TDY UNLESS GOVERNMENT MESS OR QUARTERS
WERE UTILIZED. DID THE
COMMANDING OFFICER MEAN WHAT HE SAID OR DOES HE SPEAK WITH FORKED
TONGUE? YOUR UNION BELIEVES
THAT HE ALREADY HAS THE AUTHORITY TO PAY THE MAXIMUM $25.00 PROVIDED
HE REALLY WANTED TO
. . ." /8/
THE COMMANDING OFFICER WAS IN FACT IN FAVOR OF ALLOWING A FLAT $25
PER DIEM FOR EMPLOYEES ON TDY AND EVEN INCREASING IT TO $35, AND HAD SO
EXPRESSED HIMSELF, BUT UNDER THE DOD JOINT TRAVEL REGULATIONS HE WAS
WITHOUT AUTHORITY TO DO SO. COMBS BELIEVED THE COMMANDING OFFICER DID
HAVE AUTHORITY TO ALLOW A FLAT $25 PER DIEM. OTHER UNION OFFICIALS KNEW
THAT THE COMMANDING OFFICER WAS TRYING TO OBTAIN SUCH AUTHORITY.
THE THIRTEEN SHOP STEWARDS (OTHER THAN COMBS) WERE EACH GIVEN ORAL
WARNINGS IN NOVEMBER 1973 FOR INFRACTION OF LOCAL NARF INSTRUCTION
12721.1. /9/ THE FACT THAT THE ORAL ADMONISHMENT HAD BEEN GIVEN WAS
NOTED ON A FORM (SF7-B) KEPT BY THE INDIVIDUAL EMPLOYEE'S IMMEDIATE
SUPERVISOR AND THE NOTATION RETAINED BY THE SUPERVISOR TEMPORARILY FOR A
PERIOD OF SIX MONTHS TO A YEAR. NO RECORD OF SUCH A WARNING IS KEPT IN
THE EMPLOYEE'S PERSONNEL FILE. SUCH ORAL WARNINGS ARE NOT CONSIDERED BY
THE RESPONDENT TO BE THE IMPOSITION OF DISCIPLINE. AT THE TIME OF THE
HEARING IN THIS CASE, JULY 1974, THE NOTATION THAT THE ORAL WARNING HAD
BEEN GIVEN HAD ALREADY BEEN DELETED FROM THE SF7-B'S OF SOME OF THE
THIRTEEN SHOP STEWARDS.
ON SEPTEMBER 27, 1973, LATE IN THE AFTERNOON, RALPH BARNES, COMBS'
SECTION HEAD, CALLED COMBS AT THE UNION OFFICE AND LEFT A MESSAGE WITH
COMBS' SECRETARY FOR COMBS TO BE IN JOHN B. CHERRY'S OFFICE AT 10:00
A.M. THE NEXT MORNING. CHERRY WAS THE PRODUCTION DEPARTMENT HEAD AND
COMBS' FIFTH LEVEL SUPERVISOR. THE SECRETARY ASKED WHAT IT WAS ABOUT,
AND BARNES SAID IT WAS A PRIVATE MATTER. THE SECRETARY GAVE THE NOTE TO
COMBS AS HE WAS COMING INTO THE OFFICE AT THE END OF THE BUSINESS DAY
AND SHE WAS LEAVING. WHEN COMBS CLOCKED OUT FOR THE DAY HE FOUND AN
"INTRA-ACTIVITY PASS" (AN AUTHORIZATION TO GO TO ANOTHER PART OF THE
FACILITY) ON HIS CARD. IT STATED THAT HE WAS AUTHORIZED TO "VISIT" MR.
CHERRY AT 10:00 A.M. ON SEPTEMBER 28. THE PASS HAD TWO BOXES FOR SUCH
PURPOSES, TO "VISIT" OR "REPORT TO", ONE OF WHICH WAS TO BE CHECKED.
THE "NATURE OF BUSINESS" WAS STATED TO BE "PRIVATE MATTER". /10/
COMBS DID NOT GO TO CHERRY'S OFFICE THE NEXT DAY AT 10:00 A.M.
INSTEAD, HE ATTENDED TO SOME UNION BUSINESS. AT 10:30 COMBS' THIRD
LEVEL SUPERVISOR, REAMY, LEARNED (THE RECORD DOES NOT INDICATE HOW) THAT
COMBS HAD NOT YET GONE TO CHERRY'S OFFICE. HE DIRECTED ANOTHER OF
COMBS' SUPERVISORS, HURST, TO FIND COMBS AND DIRECT HIM TO REPORT TO
CHERRY'S OFFICE. HURST AND REAMY FOUND COMBS AT 11:00 A.M. AND DIRECTED
HIM TO REPORT TO CHERRY'S OFFICE AT ONCE. THEY GAVE COMBS ANOTHER
INTRA-ACTIVITY PASS AUTHORIZING HIM TO "REPORT TO" CHERRY. COMBS THEN
ATTENDED TO SOME OTHER UNION BUSINESS, THEN WENT TO HIS OFFICE, FOUND
BOZOTI THERE, ASKED BOZOTI AND BOZOTI AGREED TO ACCOMPANY HIM TO
CHERRY'S OFFICE, AND THEY ARRIVED THERE AT 12:10 P.M. COMBS HAD NOT
CALLED CHERRY'S OFFICE TO EXPLAIN THE DELAY OR MAKE ARRANGEMENTS TO
"VISIT" OR "REPORT" LATE.
CHERRY ASKED COMBS WHY HE HAD NOT COME AT 10:00 A.M. AND COMBS
ANSWERED (ACCORDING TO HIS OWN TESTIMONY) THAT HE DID NOT MAKE A HABIT
OF MAKING PERSONAL VISITS WITH DEPARTMENT HEADS. CHERRY ASKED THAT
BOZOTI NOT REMAIN. HE TOLD COMBS THAT HE WANTED TO INVESTIGATE CERTAIN
ASPECTS OF THE "CAUTION" FLYER AND THAT IN ACCORDANCE WITH THE
COLLECTIVE AGREEMENT SUCH DISCUSSION WAS TO BE IN PRIVATE. /11/ COMBS
AGREED AND THE REST OF THE DISCUSSION WAS IN PRIVATE.
AFTER THE MEETING ON SEPTEMBER 28, 1973, CHERRY CALLED COMBS'
DIVISION DIRECTOR AND ASKED HIM TO LOOK INTO THE REASONS COMBS HAD
REPORTED LATE AND TO TAKE WHATEVER ACTION WAS APPROPRIATE. COMBS'
IMMEDIATE SUPERVISOR, NAT JAFFEE, MADE THE INVESTIGATION. ON OCTOBER 9
JAFFEE DISCUSSED THE MATTER WITH COMBS INFORMALLY. ON OCTOBER 31 JAFFEE
MET WITH COMBS AGAIN, IN THE PRESENCE OF A UNION STEWARD, AND TOLD HIM
HE WAS GOING TO ISSUE A LETTER OF REPRIMAND TO COMBS "FOR YOUR FIRST
INFRACTION OF DELAY IN CARRYING OUT ORDERS/INSTRUCTIONS OF SUPERVISOR ON
28 SEPTEMBER 1973." THE NEXT DAY THE LETTER OF REPRIMAND WAS ISSUED.
/12/ IT RECITED MOST OF THE FOREGOING FACTS. IT RECITED ALSO THAT THE
"RECKONING PERIOD" OF THE REPRIMAND WOULD BE ONE YEAR FROM SEPTEMBER 28,
1973 AND THAT A REPETITION OF THE INFRACTION DURING THE RECKONING PERIOD
MIGHT RESULT IN MORE SEVERE DISCIPLINARY ACTION.
IN CAFETERIA EMPLOYEES UNION V. ANGELOS, 320 U.S. 293, 64 S.CT. 126
(1943) AN INJUNCTION HAD BEEN ISSUED AGAINST ORDERLY AND PEACEFUL
PICKETING FOR ORGANIZING PURPOSES. THE PICKETING SIGNS CONTAINED
MISLEADING STATEMENTS, AND SOME OF THE PICKETS TOLD PROSPECTIVE
CUSTOMERS OF THE CAFETERIA THAT THE FOOD WAS BAD AND THAT PATRONAGE
WOULD AID FASCISM. IN REVERSING THE GRANT OF THE INJUNCTION ON
CONSTITUTIONAL GROUNDS, THE SUPREME COURT SAID (320 U.S.AT 295):
"TO USE LOOSE LANGUAGE OR UNDEFINED SLOGANS THAT ARE PART OF THE
GIVE-AND-TAKE IN OUR
ECONOMIC AND POLITICAL CONTROVERSIES-- LIKE 'UNFAIR' AND 'FASCIST'--
IS NOT TO FALSIFY FACTS."
THERE ARE NUMEROUS CASES ELABORATING THAT THOUGHT, NOT ON
CONSTITUTIONAL GROUNDS, BUT ON THE GROUND THAT THE FEDERAL LABOR LAWS
ENCOURAGE FULL AND ROBUST COMMUNICATION BY PROTAGONISTS IN LABOR MATTERS
FREE OF FEAR OF REPRISAL AND THAT THOSE LAWS COUNTENANCE EXAGGERATION
AND HYPERBOLE.
OF PARTICULAR INTEREST IS OLD DOMINION BRANCH NO. 496, NATIONAL
ASSOCIATION OF LETTER CARRIERS, AFL-CIO V. AUSTIN, 94 S.CT. 2770 (1974).
THAT CASE IS OF PARTICULAR INTEREST BECAUSE IT AROSE WHEN THE POSTAL
WORKERS WERE COVERED BY EXECUTIVE ORDER 11491 AND THUS THE CASE WAS
GOVERNED BY THE POLICY OF THE EXECUTIVE ORDER CONCERNING FREEDOM OF
COMMUNICATION WITHOUT FEAR OF REPRISAL FOR EXAGGERATION OR INACCURACY.
IT IS THE ONLY SUPREME COURT DECISION ON THAT SUBJECT UNDER THE
EXECUTIVE ORDER. THE SUPREME COURT SAID THAT ALTHOUGH THE EXECUTIVE
ORDER RATHER THAN THE NLRA WAS THE RELEVANT FEDERAL LAW,
". . . WE THINK THAT THE SAME FEDERAL POLICIES FAVORING UNINHIBITED,
ROBUST AND WIDE-OPEN
DEBATE IN LABOR DISPUTES ARE APPLICABLE HERE . . ." 94 S.CT.AT 2776.
THE SUPREME COURT SAID FURTHER (AT 2777):
". . . WE SEE NOTHING IN THE EXECUTIVE ORDER WHICH INDICATES THAT IT
INTENDED TO RESTRICT
IN ANY WAY THE ROBUST DEBATE WHICH HAS BEEN PROTECTED UNDER THE
NLRA." /13/
THAT CASE WAS IN SUBSTANCE A LIBEL ACTION UNDER THE VIRGINIA
"INSULTING WORDS" STATUTE. THE UNION IN ONE OF ITS PUBLICATIONS HAD
REPEATEDLY CALLED THE PLAINTIFFS "SCABS" AND IN A LATER ISSUE GAVE A
PEJORATIVE DEFINITION OF A "SCAB" /14/ IN HYPERBOLICAL TERMS AS ONE WHO,
AMONG OTHER THINGS, HAD ENGAGED IN CONDUCT FOR WHICH ANOTHER HAD HAD
SUFFICIENT CHARACTER TO HANG HIMSELF, AS ONE WHO HAD HAD THE DEVIL CLOSE
THE GATES OF HELL ON HIM, AND WHO WAS A TRAITOR TO HIS GOD, HIS COUNTRY,
AND HIS FAMILY.
THE SUPREME COURT HELD THAT FALSE STATEMENTS BY LABOR UNIONS IN LABOR
MATTERS ARE NOT OF THEMSELVES ACTIONABLE AND THAT THE THERETOFORE
ESTABLISHED LEGAL REMEDIES FOR FALSE STATEMENTS WERE PREEMPTED BY
FEDERAL LABOR LAW IF THE FALSE STATEMENTS WERE MADE WITHOUT KNOWLEDGE OF
THEIR FALSITY OR WERE NOT IN RECKLESS DISREGARD OF THE TRUTH; /15/ THAT
CALLING SOMEONE A SCAB, EVEN ACCOMPANIED BY ITS EXAGGERATED (EVEN
UNTRUE) DEFINITION, DID NOT JUSTIFY ANY RESTRAINT ON ROBUST AND
UNTRAMMELLED DISCUSSION IN LABOR MATTERS, AND THAT THE APPELLATION
"TRAITOR" IN SUCH CONTEXT WAS NOT TO BE UNDERSTOOD IN ITS LITERAL SENSE;
AND THAT FEDERAL LABOR LAW GIVES A UNION LICENSE TO USE INTEMPERATE AND
ABUSIVE LANGUAGE IN LABOR MATTERS WITHOUT FEAR OF PENALTY IF IT BELIEVES
SUCH RHETORIC TO BE EFFECTIVE TO MAKE ITS POINT.
IN REACHING THESE CONCLUSIONS THE SUPREME COURT RELIED ON ITS EARLIER
DECISIONS AND ESPECIALLY LINN V. PLANT GUARD WORKERS, 383 U.S. 53, 86
S.CT. 657 (1966). IT QUOTED FROM THAT DECISION IN WHICH THE COURT HAD
SAID, WITH APPROVAL, CONCERNING DECISIONS OF THE NATIONAL LABOR
RELATIONS BOARD (94 S.CT.AT 2778, QUOTING FROM 383 U.S.AT 60-61, 86
S.CT.AT 662):
"LIKEWISE, IN A NUMBER OF CASES, THE BOARD HAS CONCLUDED THAT
EPITHETS SUCH AS 'SCAB',
'UNFAIR', AND 'LIAR' ARE COMMONPLACE IN THESE STRUGGLES AND NOT SO
INDEFENSIBLE AS TO REMOVE
THEM FROM THE PROTECTION OF SEC. 7, /16/ EVEN THOUGH THE STATEMENTS
ARE ERRONEOUS AND DEFAME
ONE OF THE PARTIES TO THE DISPUTE."
IN LETTER CARRIERS THE SUPREME COURT ADDED THIS OBSERVATION AFTER THE
FOREGOING QUOTATION:
"THESE CONSIDERATIONS ARE EQUALLY APPLICABLE UNDER THE EXECUTIVE
ORDER. SECTION 1 OF THE
ORDER GUARANTEES FEDERAL EMPLOYEES THE SAME RIGHTS". /17/
AGAIN QUOTING FROM LINN, THE SUPREME COURT IN LETTER CARRIERS SAID
(94 S.CT.AT 2781):
". . . LINN RECOGNIZED THAT FEDERAL LAW GIVES A UNION LICENSE TO USE
INTEMPERATE, ABUSIVE,
OR INSULTING LANGUAGE WITHOUT FEAR OR RESTRAINT OR PENALTY IF IT
BELIEVES SUCH RHETORIC TO BE
AN EFFECTIVE MEANS TO MAKE ITS POINT . . .
"MR JUSTICE CLARK PUT IT QUITE BLUNTLY:
"'THE MOST REPULSIVE SPEECH ENJOYS IMMUNITY PROVIDED IT FALLS SHORT
OF DELIBERATE OR
RECKLESS UNTRUTH.'" 383 U.S.AT 63; 86 S.CT.AT 663.
THE PRINCIPLE IS THUS THOROUGHLY ESTABLISHED THAT "SHORT OF
DELIBERATE OR RECKLESS UNTRUTH" THE DISTRIBUTION OF THE "CAUTION" FLYER
WOULD BE IMMUNE FROM RETALIATION. THE RESPONDENT ARGUES /18/ THAT THE
CORE OF ITS OBJECTION TO THE FLYER WAS THAT PART THAT STATED THAT SOME
MONTHS EARLIER THE COMMANDING OFFICER HAD STATED THAT HE WAS IN FAVOR OF
A FLAT $25.00 PER DIEM FOR EMPLOYEES ON TDY (UNLESS GOVERNMENT MESS OR
QUARTERS WERE FURNISHED) AND THEN IN EFFECT POSED THE RHETORICAL
QUESTION WHETHER WHEN THE COMMANDING OFFICER MADE SUCH STATEMENT DID HE
MEAN IT OR WAS HE LYING ("SPEAK WITH FORKED TONGUE")?
THE ISSUE IS NOT WHETHER THE STATEMENT WAS UNTRUE BUT WHETHER IT WAS
A DELIBERATE OR RECKLESS UNTRUTH. THE FIRST PART OF THAT STATEMENT WAS
UNQUESTIONABLY TRUE; THE COMMANDING OFFICER HAD STATED HE WAS IN FAVOR
OF A $25.00 PER DIEM. THE SECOND PART WAS UNTRUE. CAPTAIN SHINE WAS
SINCERE IN HIS STATEMENT; HE HAD EVEN ENLISTED THE VARIOUS UNIONS' AID
(UNSUCCESSFULLY) IN TRYING TO GET AUTHORITY FOR A $25.00 PER DIEM. BUT
THERE IS NO PERSUASIVE EVIDENCE THAT COMBS KNEW IT, AND NOT EVEN AN
INDICATION CONCERNING WHAT KNOWLEDGE THE OTHER THIRTEEN SHOP STEWARDS
HAD.
COMBS HAD TESTIFIED EARLIER ON OTHER MATTERS, AND NEAR THE END OF THE
HEARING WAS RECALLED FOR FURTHER EXAMINATION BY THE RESPONDENT. ON
DIRECT EXAMINATION BY RESPONDENT THE FOLLOWING TESTIMONY WAS ELICITED:
"Q. DID YOU BELIEVE THE COMMANDING OFFICER HAS AUTHORITY TO PAY A
MAXIMUM OF $25.00 A DAY?
A. SURE DID.
. . .
JUDGE KRAMER: IT IS NOT DOES HE BELIEVE IT NOW, (BUT) DID HE THEN
BELIEVE IT?
MR. FOSS: DID HE BELIEVE IT THEN.
"THE WITNESS: THE ANSWER TO THAT WAS YES". /19/
AND AT PAGE 249:
"Q. I BELIEVE I ASKED YOU A FEW MINUTES AGO WHETHER OR NOT YOU STILL
BELIEVE, AND DID YOU
BELIEVE AT THE TIME THE FLYER WAS DISTRIBUTED, THAT THE COMMANDING
OFFICER HAD THE AUTHORITY
TO PAY THE $25.00 A DAY PER DIEM. DO YOU RECALL THAT?
A. YES.
Q. DO YOU STILL BELIEVE HE HAS THAT AUTHORITY?
A. AS FAR AS I KNOW I HAVEN'T SEEN ANYTHING STATING THAT HE DOES NOT
HAVE THAT
AUTHORITY. AS FAR AS I KNOW, I THINK IT WAS COMMON KNOWLEDGE AT THE
TIME. SEVERAL OF THEM
KNEW OF OTHER PROGRAMS WE HAVE GOING ON DOWN THERE SPENDING THOUSANDS
OF DOLLARS. CERTAINLY
WE THOUGHT HE HAD AUTHORITY TO SPEND $25.00 A DAY TO OUR EMPLOYEES
THAT CERTAINLY DESERVED IT.
MR. FOSS: NO FURTHER QUESTIONS."
COMBS IS A MECHANIC, A CRAFTSMAN, AND THERE IS NO EVIDENCE HE IS
TRAINED OR VERSED IN THE NICETIES AND DISTINCTIONS OF GOVERNMENT
ACCOUNTING OR FISCAL POLICIES OR BUDGETS. I CONCLUDE THAT COMBS
BELIEVED, MISTAKENLY, THAT THE COMMANDING OFFICER HAD THE AUTHORITY TO
ALLOW THE $25.00. THAT LEAVES THE MATTER OF WHETHER POSING THE
RHETORICAL QUESTION IMPLYING THAT THE COMMANDING OFFICER HAD LIED WAS A
"RECKLESS UNTRUTH."
THE UNION OF WHICH COMBS IS A MEMBER AND OFFICIAL OF THE LOCAL IS A
LARGE UNION WHICH OVERWHELMINGLY REPRESENTS EMPLOYEES EMPLOYED IN
PRIVATE INDUSTRY, NOT EMPLOYEES OF THE GOVERNMENT. WE LEARN FROM THE
LETTER CARRIERS CASE THAT THE STANDARD OF ABUSIVE AND INACCURATE
LANGUAGE EMPLOYED IN INTRA-UNION COMMUNICATION THAT IS TO BE TOLERATED
AND THAT REMAINS WITHIN THE PROTECTION OF THE RIGHT TO ASSIST A LABOR
ORGANIZATION IS NO LESS THAN IN THE PRIVATE SECTOR. THE SUPREME COURT
IN LETTER CARRIERS AND IN LINN RECOGNIZED THAT IN LABOR DISPUTES IN THE
PRIVATE SECTOR EPITHETS SUCH AS "LIAR" "ARE COMMONPLACE". /20/ I
CONCLUDE THAT THE LANGUAGE INVOLVED IN THIS CASE, WHILE PERHAPS
UNSEEMLY, WAS IMMUNE FROM REPRISAL BY THE RESPONDENT.
THE RESPONDENT ARGUES THAT THE DISTRIBUTION OF THE "CAUTION" FLYER
WAS UNLAWFUL, AND THEREFORE NOT PROTECTED, BECAUSE IT WAS CALCULATED TO
DISCOURAGE EMPLOYEES FROM VOLUNTEERING FOR TDY, WOULD THUS COMPEL THE
RESPONDENT TO SEND NON-VOLUNTEERS ON TDY, WOULD THEREFORE TEND TO RESULT
IN LOWER MORALE AND LESS EFFICIENT WORK, AND WAS THUS A QUASI-VIOLATION
OF SECTION 19(B)(4) OF THE EXECUTIVE ORDER WHICH PROSCRIBES ENGAGING IN
A STRIKE OR SLOWDOWN. IT BASES SUCH ARGUMENT NOT PRIMARILY ON THE
"CAUTION" FLYER ITSELF BUT ON ITS ANTECEDENTS, BASICALLY THE "WHY GO?"
FLYER DISTRIBUTED SOME SIX MONTHS EARLIER. /21/
THIS IS TOO THIN AN ARGUMENT ON WHICH TO PREDICATE A CONCLUSION THAT
THE DISTRIBUTION OF THE "CAUTION" FLYER WAS UNLAWFUL UNDER THE EXECUTIVE
ORDER. THE ONLY PART OF SECTION 19(B)(4) THAT MIGHT BE RELEVANT WOULD
BE THE PROSCRIPTION OF CALLING OR CONDONING A SLOWDOWN. IT IS, OF
COURSE, CONCEIVABLE THAT THAT FLYER, IN THE LIGHT OF THE EVENTS SIX
MONTHS EARLIER WITH RESPECT TO ANOTHER TDY ASSIGNMENT, MIGHT HAVE
INDUCED SOME EMPLOYEES TO REMOVE THEIR NAMES FROM THE VOLUNTEER TDY
ROSTER. IT IS ALSO CONCEIVABLE THAT AS A RESULT SOME PEOPLE, IN THE
FUTURE, MIGHT BE SENT ON TDY WHO HAD NOT VOLUNTEERED FOR SUCH
ASSIGNMENTS. IF THAT COMBINATION OF CONCEIVABLE EVENTS HAD
MATERIALIZED, PERHAPS THE MORALE OF SUCH MEN ON TDY WOULD HAVE DECLINED
AND PERHAPS THE QUALITY OF THEIR WORK WOULD HAVE BEEN LOWERED. BUT SUCH
A SERIES OF "CONCEIVABLES" AND POSSIBILITIES IS TOO TENUOUS A THREAD BY
WHICH TO HANG A QUASI-VIOLATION OF SECTION 19(A)(4), A QUASI-CALLING OR
QUASI-CONDONING OF A QUASI-SLOWDOWN. ESPECIALLY IS THIS SO SINCE THE
RIGHT TO DISTRIBUTE LITERATURE IS NOT ONLY A RIGHT PROTECTED BY THE
EXECUTIVE ORDER BUT ITS RESTRAINT RAISES CONSTITUTIONAL QUESTIONS. SEE
CAFETERIA EMPLOYEES UNION V. ANGELOS, 320 U.S. 293 (1943).
THERE ARE REGULATIONS OF THE RESPONDENT AND OF HIGHER DEPARTMENTAL
AUTHORITY THAT PROHIBIT THE DISTRIBUTION OF "LIBELLOUS" OR "LIBELLOUS OR
SCURRILOUS" MATERIAL BY EMPLOYEES. WE NEED NOT DECIDE WHETHER THE FLYER
HERE INVOLVED WAS IN VIOLATION OF THOSE REGULATIONS. TO THE EXTENT, IF
ANY, THAT THOSE REGULATIONS PROHIBIT ACTIVITY PERMITTED BY EXECUTIVE
ORDER 11491 AS AMENDED, THEY ARE INVALID. /22/
SINCE THE DISTRIBUTION OF THE FLYER WAS A PROTECTED COMMUNICATION,
ANY RESTRAINT ON OR RETALIATION FOR DISTRIBUTING IT WAS A VIOLATION OF
SECTION 19(A)(1) OF EXECUTIVE ORDER 11491. THERE IS NOTHING IN THE
RECORD THAT EVEN INDICATES THAT THE THIRTEEN STEWARDS WHO DID THE
DISTRIBUTING KNEW OR HAD REASON TO KNOW OR SUSPECT THAT THE FLYER
CONTAINED ANY FALSE OR MISLEADING STATEMENTS. ACCORDINGLY, ANY
RETALIATION FOR THEIR HAVING PARTICIPATED IN THE DISTRIBUTION WAS A
VIOLATION OF THE EXECUTIVE ORDER.
THERE IS EVIDENCE IN THE RECORD THAT THE MANAGEMENT OF THE RESPONDENT
DID NOT CONSIDER THE ADMINISTERING OF AN ORAL WARNING TO BE A FORM OF
DISCIPLINE, THAT THERE IS NO RECORD IN THE EMPLOYEE'S PERSONNEL FILE
THAT SUCH A WARNING HAD BEEN ADMINISTERED, THAT THE ONLY RECORD OF SUCH
A WARNING IS MADE ONLY ON A CARD (FORM SF 7B) KEPT BY THE EMPLOYEE'S
SUPERVISOR, THAT SUCH RECORD IS KEPT FOR ONLY SIX MONTHS OR A YEAR, AND
THAT SUCH CARD IS NOT NORMALLY SEEN BY OTHERS THAN THE EMPLOYEE'S
SUPERVISOR.
NONE OF THAT NEGATES THE FACT THAT AN ORAL REPRIMAND IS DEROGATORY
AND AT LEAST TEMPORARILY PREJUDICIAL AND IS ADMINISTERED ONLY FOR WHAT
IS CONSIDERED MISCONDUCT. SINCE THE CONDUCT FOR WHICH IT WAS
ADMINISTERED WAS PROTECTED ACTIVITY, I WILL RECOMMEND THAT SUCH RECORDS
AS EXIST OF SUCH WARNING BE PHYSICALLY EXPUNGED.
THE QUESTION POSED BY THE FACTS PERTAINING TO THE LETTER OF REPRIMAND
TO COMBS IS NOT WHETHER THE CONDUCT FOR WHICH THE LETTER OF REPRIMAND
WAS ISSUED JUSTIFIED SUCH LETTER BUT WHETHER IN FACT THE LETTER WAS
MOTIVATED IN WHOLE OR IN PART BY COMBS' PART IN THE DISTRIBUTION OF THE
"CAUTION" FLYER. I CONCLUDE THAT IMPROPER MOTIVATION HAS NOT BEEN
ESTABLISHED.
COMBS' EXPLANATION THAT HE DID NOT REPORT AT 10:00 A.M. TO CHERRY'S
OFFICE ON SEPTEMBER 28, 1973 BECAUSE HE THOUGHT HE WAS ASKED TO BE THERE
ON A PERSONAL MATTER AND HAD OTHER THINGS TO DO AND WAS NOT IN THE HABIT
OF MAKING PERSONAL CALLS ON DEPARTMENT HEADS DOES NOT RING TRUE. HE WAS
NOT TOLD IT WAS A PERSONAL MATTER, BUT A "PRIVATE" MATTER. COMBS HAD
NOT HAD PERSONAL DEALINGS BEFORE WITH CHERRY. AND DISCIPLINE WAS TO BE
A "PRIVATE" DISCUSSION AS PROVIDED BY THE CONTRACT. WORSE, WHEN HE WAS
TOLD BY TWO SUPERVISORS AT 11:00 A.M. THAT HE WAS ORDERED TO REPORT TO
CHERRY'S OFFICE "AT ONCE" HE THEN DELAYED BY TAKING CARE OF SOME OTHER
UNION BUSINESS, THEN GOING TO THE UNION OFFICE, AND ONLY THEN GOING TO
CHERRY'S OFFICE AND ARRIVING THERE AT 12:10 P.M. THIS WAS PLAINLY
INSUBORDINATION.
THAT THE LETTER OF REPRIMAND WAS NOT MOTIVATED BY THE "CAUTION" FLYER
IS INDICATED BY THE FACTS THAT ALTHOUGH CHERRY MAY HAVE BEEN ANNOYED BY
THE FLYER, PRINCIPALLY BECAUSE OF WHAT HE BELIEVED TO BE ITS FACTUAL
MISSTATEMENTS, IT WAS NOT CHERRY WHO ISSUED THE LETTER OF REPRIMAND. HE
INSTIGATED THE INVESTIGATION THAT WAS MADE CONCERNING COMBS REPORTING
MORE THAN TWO HOURS LATE FOR THE SEPTEMBER 28 DISCUSSION, WHICH
INVESTIGATION RESULTED IN THE LETTER OF REPRIMAND. BUT THE RECORD DOES
NOT SHOW THAT HE HAD ANYTHING ELSE TO DO WITH THE LETTER OF REPRIMAND.
THE REPRIMAND WAS ISSUED BY JAFFEE, WHO WAS FOUR STEPS REMOVED FROM
CHERRY. THE RECORD DOES NOT SHOW THAT JAFFEE HAD ANY UNION ANIMUS OR
COMBS ANIMUS OR ANY FEELINGS ABOUT THE FLYER OR CONSULTED CHERRY ABOUT
THE MATTER. SO FAR AS THE RECORD SHOWS THE RELATIONS BETWEEN COMBS AND
JAFFEE, HIS IMMEDIATE SUPERVISOR, WERE COMPLETELY AMICABLE. TO CONCLUDE
THAT JAFFEE WAS MOTIVATED IN ISSUING THE LETTER OF REPRIMAND BY THE
FLYER WOULD BE BASED NOT ON EVIDENCE IN THE RECORD BUT ON SHEER
SPECULATIONS. THAT IS NOT ENOUGH ON WHICH TO PREDICATE AN UNFAIR LABOR
PRACTICE, A VIOLATION OF SECTION 19(A)(1) OF THE EXECUTIVE ORDER.
TO ARGUE, AS THE COMPLAINANT DID DURING THE HEARING, THAT "BUT FOR"
THE FLYER THE LETTER OF REPRIMAND WOULD NOT HAVE BEEN ISSUED IS TO ARGUE
THE OBVIOUS BUT DOES NOT PROVE THE FLYER MOTIVATED THE REPRIMAND. TO BE
SURE, IF THE FLYER HAD NOT BEEN DISTRIBUTED THERE WOULD HAVE BEEN NO
OCCASION FOR THE SEPTEMBER 28 MEETING AND COMBS WOULD NOT HAVE REPORTED
LATE FOR IT AND THERE WOULD HAVE BEEN NO INVESTIGATION CONCERNING HIS
REPORTING LATE AND NO REPRIMAND AS THE RESULT OF THE INVESTIGATION. BUT
BECAUSE "BUT FOR" THE FLYER THERE WOULD HAVE BEEN NO REPRIMAND, IN THAT
SENSE, DOES NOT PROVE OR EVEN INDICATE THAT THE FLYER MOTIVATED THE
REPRIMAND. SURELY "BUT FOR" COMBS HAVING BEEN HIRED BY THE RESPONDENT
THERE WOULD HAVE BEEN NO REPRIMAND, BUT THAT DOES NOT PROVE THAT HIS
HIRING MOTIVATED THE LETTER OF REPRIMAND.
I RECOGNIZE THAT THIS PRODUCES WHAT MAY BE CONSIDERED SOMEWHAT OF AN
ANOMALOUS RESULT. THE STEWARDS AND CHIEF STEWARDS WHO RECEIVED LITTLE
MORE THAN A SLAP ON THE WRIST HAVE THAT ACTION RESCINDED WHILE THE
CHAIRMAN OF THE SHOP COMMITTEE, WHO WOUND UP WITH TWO MORE SERIOUS
DISCIPLINES, THE LETTER OF REPRIMAND AND THE TEN-DAY SUSPENSION, HAS
NEITHER RESCINDED.
BUT THIS IS BECAUSE I HAVE CONCLUDED THERE WAS NO LEGAL CAUSATION
BETWEEN THE FLYER AND THE REPRIMAND, AS SET FORTH ABOVE. AND I FOUND
ABOVE, IN THE STATEMENT OF THE CASE, THAT THE MATTER OF THE SUSPENSION
IS NOT BEFORE ME BECAUSE THE AREA ADMINISTRATOR REJECTED A TENDERED
AMENDMENT TO THE COMPLAINT TO ADD THAT ADDITIONAL COUNT.
THE COMPLAINANT ARGUES THAT THE SUSPENSION IS NEVERTHELESS BEFORE ME
BECAUSE THE 10-DAY SUSPENSION WAS A SEQUEL TO THE ORIGINAL PROPOSED
10-DAY SUSPENSION WHICH WAS LATER CANCELLED. THE ACTUAL SUSPENSION
FOLLOWED A LATER PROPOSED SUSPENSION WHICH WAS NOT THE SUBJECT OF AN
UNFAIR LABOR PRACTICE CHARGE AS REQUIRED BY SECTION 202(A)(1) OF THE
REGULATIONS. THE ORIGINAL PROPOSED SUSPENSION WAS A SUBJECT OF THE
CHARGE AND BOTH IT AND ITS CANCELLATION WERE ALLEGED IN THE COMPLAINT.
OF COURSE AN AGENCY MAY NOT REPEATEDLY TAKE AND CANCEL ACTION TO
FRUSTRATE ITS EVER COMING TO TRIAL. BUT HERE THERE IS NO INDICATION
THAT THE ORIGINAL PROPOSED SUSPENSION WAS CANCELLED FOR ANY BUT SINCERE
AND PURE MOTIVES. THE ALLEGATION OF A PROPOSED SUSPENSION AND ITS
CANCELLATION DOES NOT ALLEGE AN UNFAIR LABOR PRACTICE ABSENT AN
ALLEGATION THOSE STEPS WERE TAKEN AS HARASSMENT OF UNION ACTIVITIES.
THERE IS NO SUCH ALLEGATION NOR WAS THERE EVIDENCE OF IT. THE FACT IS
IMMUTABLE THAT THE AREA ADMINISTRATOR REJECTED A TENDERED AMENDMENT TO
THE COMPLAINT TO ALLEGE THE SUSPENSION. HE MAY HAVE BEEN IN ERROR. BUT
I DO NOT SIT IN REVIEW ON APPEAL FROM HIS ACTIONS, NOR WAS THAT ACTION
APPEALED. THE PROPOSED AMENDMENT WAS NEVER TENDERED TO THE ASSISTANT
REGIONAL DIRECTOR OR TO THE ASSISTANT SECRETARY OR TO ME. IT IS THUS
NOT PART OF THE COMPLAINT BEFORE ME. I DO NOT CONSIDER IT PART OF MY
OFFICIAL FUNCTION TO FERRET OUT UNFAIR LABOR PRACTICES NOT INCLUDED IN
COMPLAINTS BEFORE ME AND TO RECOMMEND REMEDIAL ACTION.
THE COMPLAINT ALLEGES VIOLATIONS OF SECTIONS 19(A)(1) AND (2).
THE ORAL WARNINGS TO THE THIRTEEN STEWARDS FOR ENGAGING IN CONDUCT
PROTECTED BY THE ORDER, ASSISTING A LABOR ORGANIZATION BY DISTRIBUTING
ITS LITERATURE, CONSTITUTED INTERFERENCE OR COERCION IN THE EXERCISE OF
A RIGHT ASSURED BY THE ORDER, AND HENCE WAS VIOLATIVE OF SECTION
19(A)(1). BUT I DO NOT FIND A VIOLATION OF SECTION 19(A)(2).
SECTION 19(A)(2) IS IN PARI MATERIA WITH, ALMOST VERBATIM THE SAME
AS, SECTION 8(A)(3) OF THE NATIONAL LABOR RELATIONS ACT. IN
INTERPRETING SECTION 8(A)(3), THE SUPREME COURT SAID IN RADIO OFFICERS'
UNION V. N.L.R.B., 374 U.S. 17, 42-43; 74 S.CT. 323, 337 (1954):
"THE LANGUAGE OF SEC. 8(A)(3) IS NOT AMBIGUOUS. THE UNFAIR LABOR
PRACTICE IS FOR AN
EMPLOYER TO ENCOURAGE OR DISCOURAGE MEMBERSHIP BY MEANS OF
DISCRIMINATION. THUS THIS SECTION
DOES NOT OUTLAW ALL ENCOURAGEMENT OR DISCOURAGEMENT OF MEMBERSHIP IN
LABOR ORGANIZATIONS; ONLY
SUCH AS IS ACCOMPLISHED BY DISCRIMINATION IS PROHIBITED. NOR DOES
THIS SECTION OUTLAW
DISCRIMINATION IN EMPLOYMENT AS SUCH; ONLY SUCH DISCRIMINATION AS
ENCOURAGES OR DISCOURAGES
MEMBERSHIP IN A LABOR ORGANIZATION IS PROSCRIBED."
SECTION 19(A)(2) PROSCRIBES ENCOURAGEMENT OR DISCOURAGEMENT OF
MEMBERSHIP "BY DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION, OR
OTHER CONDITIONS OF EMPLOYMENT". NO DISCRIMINATION OF SUCH NATURE IS
SHOWN HERE; ALL WERE TREATED ALIKE, NOR WERE NON-MEMBERS TREATED MORE
FAVORABLY IN SIMILAR CIRCUMSTANCES. NOR DID THE ORAL WARNINGS
CONSTITUTE A CONDITION OF EMPLOYMENT. THE WARNINGS DID CONSTITUTE AN
IMPEDIMENT TO OR DISCOURAGE THE EMPLOYEES AGAINST DISTRIBUTING UNION
LITERATURE, AND THUS INTERFERED WITH THEIR RIGHTS UNDER THE ORDER, BUT
THAT WAS A VIOLATION OF SECTION 19(A)(1) OF THE EXECUTIVE ORDER, NOT
SECTION 19(A)(2). THERE WAS NEITHER DISCRIMINATION NOR DID IT PERTAIN
TO A CONDITION OF EMPLOYMENT.
HAVING VIOLATED THE RIGHTS OF THE THIRTEEN STEWARDS UNDER THE
EXECUTIVE ORDER, THE RESPONDENT SHOULD BE ORDERED TO CEASE AND DESIST
FROM SUCH CONDUCT. IN ADDITION, THE RESPONDENT SHOULD BE ORDERED TO
EXPUNGE SUCH RECORDS AS MAY STILL EXIST, PERMANENT OR TEMPORARY, OF THE
ORAL WARNINGS HAVING BEEN GIVEN. FURTHER, THE RESPONDENT SHOULD BE
ORDERED TO POST NOTICES THAT IT WILL NOT ENGAGE IN SUCH CONDUCT IN THE
FUTURE AND HAS RESCINDED, AND EXPUNGED ALL RECORDS OF, THE WARNINGS
HAVING BEEN GIVEN.
A SUGGESTED FORM OF ORDER AND A SUGGESTED FORM OF NOTICE ARE ATTACHED
HERETO.
DATED: JANUARY 14, 1975
WASHINGTON, D.C.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS THEREUNDER, THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS ORDERS THAT THE NAVAL AIR REWORK
FACILITY OF THE DEPARTMENT OF NAVY, NORFOLK, VIRGINIA, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING, OR COERCING
RAYMOND J. POTTS
CHARLES E. SCHWARTZ
HARRY H. THIEDE
WILLIAM R. ROBINSON
CAROLYN M. YORK
CHARLES E. BOZOTI
HURSEL N. WIGGINS
IVAN W. PEARCE
JACK E. MOSEMAN
WILLIAM O. PARKS
VERNON L. PATTERSON
HENRY R. DEFELICE
WORTH W. COX OR ANY OTHER EMPLOYEE BY GIVING ORAL OR WRITTEN WARNINGS
OR OTHERWISE DISCOURAGE THEM IN THE DISTRIBUTION OF LEGITIMATE
LITERATURE ON BEHALF OF A LABOR ORGANIZATION.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY SECTION 1(A)
OF EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER:
(A) RESCIND AND EXPUNGE ANY NOTATION OR REFERENCE IN ANY RECORDS,
PERMANENT OR TEMPORARY, IF ANY SUCH NOTATION OR RECORD EXISTS, OF THE
WARNING GIVEN TO THE EMPLOYEES NAMED IN PARAGRAPH 1(A) OF THIS ORDER IN
NOVEMBER 1973 BECAUSE OF THEIR DISTRIBUTING ALLEGEDLY LIBELOUS OR
SCURRILOUS LITERATURE.
(B) POST AT ITS FACILITY AT THE NAVAL AIR REWORK FACILITY, NORFOLK,
VIRGINIA, COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS. UPON
RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE COMMANDING OFFICER AND
SHALL BE POSTED AND MAINTAINED BY HIM FOR SIXTY 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 ASSURE THAT SUCH
NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN WRITING WITHIN TWENTY DAYS FROM THE DATE OF THIS
ORDER WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
THE COMPLAINT, INSOFAR AS IT ALLEGES OTHER VIOLATIONS OF SECTION
19(A)(1) AND VIOLATIONS OF SECTION 19(A)(2) OF EXECUTIVE ORDER 11491, AS
AMENDED, IS DISMISSED.
DATED:
WASHINGTON, D.C.
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE RAYMOND J. POTTS,
CHARLES E. SCHWARTZ, HARRY H. THIEDE, WILLIAM R. ROBINSON, CAROLYN M.
YORK, CHARLES E. BOZOTI, HURSEL N. WIGGINS, IVAN W. PEARCE, JACK E.
MOSEMAN, WILLIAM O. PARKS, VERNON L. PATTERSON, HENRY R. DEFELICE, WORTH
W. COX, OR ANY OTHER EMPLOYEE BY WARNING ANY OF THEM AGAINST THE
DISTRIBUTION OF LAWFUL LITERATURE ON BEHALF OF A LABOR ORGANIZATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY OF OUR EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY
SECTION 1(A) OF EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL RESCIND AND WILL EXPUNGE ANY NOTATION OF AND ANY REFERENCE TO
WARNINGS GIVEN TO THE EMPLOYEES NAMED IN THE FIRST PARAGRAPH OF THIS
NOTICE IN NOVEMBER 1973 BECAUSE OF THEIR DISTRIBUTING LITERATURE ON
BEHALF OF A LABOR ORGANIZATION.
DATED . . . BY: . . .
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED OR COVERED BY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, WHOSE
ADDRESS IS 14120 GATEWAY BUILDING, 3535 MARKET ST., PHILADELPHIA,
PENNSYLVANIA 19104.
/1/ SEE SECTION 203.2(A)(1) OF THE REGULATION.
/2/ EXH. J. 13.
/3/ CF. NEW YORK ARMY AND AIR NATIONAL GUARD, A/SLMR NO. 441, FN. 1.
/4/ EXH. R1.
/5/ EXH. R2.
/6/ EXH. J11, P. 5.
/7/ EXH. J8, P. 82.
/8/ EXH. J1.
/9/ THEIR NAMES ARE SET FORTH IN THE RECOMMENDED ORDER, INFRA.
/10/ EXH. C2.
/11/ SEE EXH. J8, P. 67, SEC. 2 AND P. 90, SEC. 5.
/12/ EXH. C4.
/13/ ACCORDINGLY, DECISIONS UNDER THE NATIONAL LABOR RELATIONS ACT,
AT LEAST DECISIONS OF THE SUPREME COURT UNDER THAT ACT, ARE MORE THAN AN
INTERESTING ANALOGY IN DETERMINING THE SCOPE OF PERMISSIBLE DEBATE UNDER
THE EXECUTIVE ORDER. BUT CF. CHARLESTON NAVAL SHIPYARD, A/SLMR NO. 1,
PP. 3-4.
/4/ 94 S.CT.AT 2773.
/15/ COMPARE NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 84 S.CT.
710 (1964).
/16/ OF N.L.R.A.
/17/ E.O. 11491, SEC. 1: "THE RIGHT FREELY AND WITHOUT FEAR OF
PENALTY OR REPRISAL, TO FORM, JOIN, AND ASSIST A LABOR ORGANIZATION."
SEE SUPRA, FN. 13.
/18/ BRIEF, P. 14.
/19/ TR. 246.
/20/ LINN, 383 U.S.AT 60-61, 86 S.CT.AT 662; LETTER CARRIERS, 94
S.CT.AT 2778.
/21/ R. BRIEF, PP. 40-46; TR. 28.
/22/ CF. U.S. MERCHANT MARINE ACADEMY, FLRC NO. 71A-15; JOINT
TECHNICAL COMMUNICATIONS OFFICE, DEPARTMENT OF DEFENSE, A/SLMR NO. 396
(1974); CHARLESTON NAVAL SHIPYARD, A/SLMR NO. 1, PP. 4-5 (1970).
5 A/SLMR 542; P. 517; CASE NO. 63-5019(CA); JULY 31, 1975.
ARMY AND AIR FORCE EXCHANGE SERVICE,
SOUTH TEXAS AREA EXCHANGE,
LACKLAND AIR FORCE BASE, TEXAS
A/SLMR NO. 542
THIS PROCEEDING AROSE UPON THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
3202, AFL-CIO (COMPLAINANT) WHICH ALLEGED THAT THE RESPONDENT VIOLATED
SECTION 19(A)(1), (5) AND (6) OF THE ORDER WHEN, AFTER A REORGANIZATION,
IT CEASED RECOGNIZING THE COMPLAINANT AS THE EXCLUSIVE REPRESENTATIVE OF
CERTAIN MAINTENANCE EMPLOYEES LOCATED AT THE FORT SAM HOUSTON EXCHANGE.
PRIOR TO JANUARY 1974 THE FORT SAM HOUSTON EXCHANGE WAS AN AUTONOMOUS
EXCHANGE RESPONSIBLE DIRECTLY TO THE ALAMO EXCHANGE REGION WITHIN THE
ARMY AND AIR FORCE EXCHANGE SERVICE. EFFECTIVE JANUARY 26, 1974, A
REORGANIZATION WAS INSTITUTED WHEREBY THE FORT SAM HOUSTON EXCHANGE WAS
ADDED TO THE SOUTH TEXAS AREA EXCHANGE (STAE), A NEW MANAGERIAL ENTITY
WHICH CENTRALIZED VARIOUS ADMINISTRATIVE FUNCTIONS SUCH AS ACCOUNTING,
PERSONNEL, CONTRACT ADMINISTRATION AND CERTAIN MANAGEMENT OPERATIONS FOR
ALL EXCHANGES WITHIN ITS JURISDICTION, INCLUDING THE FORT SAM HOUSTON
EXCHANGE. SUBSEQUENT TO THE REORGANIZATION, THE STAE TERMINATED DUES
DEDUCTIONS FOR FIVE MAINTENANCE EMPLOYEES REMAINING AT THE FORT SAM
HOUSTON EXCHANGE ON THE GROUNDS THAT WHILE THESE FIVE MAINTENANCE
EMPLOYEES RETAINED THE FORT SAM HOUSTON EXCHANGE AS THEIR DUTY STATION,
THEY HAD BEEN "TRANSFERRED" TO THE STAE. THUS, THE RESPONDENT
MAINTAINED THAT AS A RESULT OF A BONA FIDE REORGANIZATION, WHICH
INCLUDED THE MAINTENANCE EMPLOYEES REMAINING AT THE FORT SAM HOUSTON
EXCHANGE, THE RESPONDENT HAD THE RIGHT TO WITHDRAW RECOGNITION FROM THE
COMPLAINANT WITH REGARD TO THOSE MAINTENANCE EMPLOYEES.
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THE ASSISTANT
SECRETARY FOUND THAT THE REORGANIZATION HEREIN AMOUNTED TO NO MORE THAN
AN ADMINISTRATIVE TRANSFER AS TO THOSE MAINTENANCE EMPLOYEES REMAINING
AT THE FORT SAM HOUSTON EXCHANGE AND THAT SUCH MAINTENANCE EMPLOYEES
CONTINUED TO REMAIN IN THE EXCLUSIVELY RECOGNIZED UNIT REPRESENTED BY
THE COMPLAINANT AT THE FORT SAM HOUSTON EXCHANGE. IN THIS REGARD, THE
ASSISTANT SECRETARY NOTED THAT WHILE SUBSEQUENT TO THE REORGANIZATION
BOOKKEEPING MATTERS RELATIVE TO THESE EMPLOYEES WERE REASSIGNED TO THE
STAE AND THEY WERE COVERED ON DIFFERENT PAYROLLS, THESE MAINTENANCE
EMPLOYEES REPORTED TO WORK AT THE SAME PLACE, RECEIVED ASSIGNMENTS FROM
AND WERE RESPONSIBLE TO THE SAME IMMEDIATE SUPERVISOR, AND PERFORMED THE
SAME DUTIES AND MAINTAINED THE SAME WORK CONTACTS WITH OTHER EMPLOYEES
WHO UNDISPUTEDLY REMAINED IN THE FORT SAM HOUSTON EXCHANGE UNIT.
MOREOVER, AND NOTING THE FACT THAT BOTH THE FORT SAM HOUSTON EXCHANGE
AND THE STAE WERE ADMINISTRATIVE COMPONENTS OF THE ARMY AND AIR FORCE
EXCHANGE SERVICE, THE ASSISTANT SECRETARY FOUND THE FORT SAM HOUSTON
EXCHANGE AND THE STAE WERE CO-EMPLOYERS VIS-A-VIS THE EXISTING UNIT AT
THE FORT SAM HOUSTON EXCHANGE REPRESENTED BY THE COMPLAINANT, AND AS
CO-EMPLOYERS, THE FORT SAM HOUSTON EXCHANGE AND THE STAE WERE
RESPONSIBLE FOR MAINTAINING THE PRESENT TERMS AND CONDITIONS OF
EMPLOYMENT FOR ALL EMPLOYEES IN THE UNIT INCLUDING THOSE CONTAINED IN
ANY EXISTING NEGOTIATED AGREEMENT.
BY WITHDRAWING RECOGNITION WITH REGARD TO THE MAINTENANCE EMPLOYEES
AT THE FORT SAM HOUSTON EXCHANGE, WHERE AS A CO-EMPLOYER IT HAD THE
OBLIGATION TO CONTINUE SUCH RECOGNITION, THE ASSISTANT SECRETARY FOUND
THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (5) OF THE ORDER.
UNDER THE CIRCUMSTANCES OF THIS CASE, THE ASSISTANT SECRETARY FOUND THE
RESPONDENT'S CONDUCT WAS NOT VIOLATIVE OF SECTION 19(A)(6) OF THE ORDER.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE RESPONDENT
CEASE AND DESIST FROM THE CONDUCT FOUND VIOLATIVE OF THE ORDER AND THAT
IT TAKE CERTAIN AFFIRMATIVE ACTIONS CONSISTENT WITH HIS DECISION.
ARMY AND AIR FORCE EXCHANGE SERVICE
SOUTH TEXAS AREA EXCHANGE,
LACKLAND AIR FORCE BASE, TEXAS
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3202, AFL-CIO
ON MARCH 13, 1975, ADMINISTRATIVE LAW JUDGE SALVATORE J. ARRIGO
ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR
LABOR PRACTICES AND RECOMMENDING THAT IT TAKE CERTAIN AFFIRMATIVE
ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER. THEREAFTER, THE RESPONDENT FILED
EXCEPTIONS WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER.
THE ASSISTANT SECRETARY 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
RESPONDENT'S EXCEPTIONS, I HEREBY ADOPT THE ADMINISTRATIVE LAW JUDGE'S
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS, ONLY TO THE EXTENT
CONSISTENT HEREWITH.
THE INSTANT COMPLAINT ALLEGED THAT THE RESPONDENT VIOLATED SECTION
19(A)(1), (5) AND (6) OF THE ORDER WHEN, AFTER A REORGANIZATION, IT
CEASED RECOGNIZING THE COMPLAINANT AS THE EXCLUSIVE REPRESENTATIVE OF
CERTAIN MAINTENANCE EMPLOYEES LOCATED AT THE FORT SAM HOUSTON EXCHANGE.
/1/ THE ESSENTIAL FACTS ARE NOT IN DISPUTE AND I SHALL REPEAT THEM ONLY
TO THE EXTENT DEEMED NECESSARY.
AT ALL TIMES MATERIAL HEREIN, THE ALAMO EXCHANGE REGION WAS ONE OF
FIVE EXCHANGE REGIONS IN THE ARMY AND AIR FORCE EXCHANGE SERVICE. PRIOR
TO JANUARY 1974, THE FORT SAM HOUSTON EXCHANGE WAS AN AUTONOMOUS
EXCHANGE RESPONSIBLE DIRECTLY TO THE ALAMO EXCHANGE REGION. EFFECTIVE
JANUARY 26, 1974, A REORGANIZATION WAS INSTITUTED WHEREBY THE FORT SAM
HOUSTON EXCHANGE, ALONG WITH RANDOLPH AIR FORCE BASE, WAS ADDED TO THE
SOUTH TEXAS AREA EXCHANGE (HEREINAFTER CALLED STAE), HEADQUARTERED AT
LACKLAND AIR FORCE BASE, A DISTANCE OF SOME 13 MILES FROM THE FORT SAM
HOUSTON EXCHANGE. OPERATING AS A NEW MANAGERIAL LEVEL, THE STAE
CENTRALIZED VARIOUS ADMINISTRATIVE "OVERHEAD" FUNCTIONS FOR ALL
EXCHANGES WITHIN ITS JURISDICTION, INCLUDING THE FORT SAM HOUSTON
EXCHANGE, SUCH AS ACCOUNTING, PERSONNEL, CONTRACT ADMINISTRATION AND
CERTAIN MANAGEMENT OPERATIONS. AS A RESULT OF THE REORGANIZATION,
NUMEROUS EMPLOYEES WORKING IN "OVERHEAD" OPERATIONS WERE TRANSFERRED TO
OTHER EXCHANGES, AND SOME MANAGERIAL EMPLOYEES WERE SUBJECT TO
REDUCTION-IN-FORCE PROCEDURES.
IN EARLY APRIL 1974, THE COMPLAINANT RECEIVED NOTICE THAT, AS A
RESULT OF THE REORGANIZATION, FOUR OF THE FORT SAM HOUSTON EXCHANGE
MAINTENANCE EMPLOYEES WERE BEING TRANSFERRED TO THE STAE AND THE
REMAINING FOUR MAINTENANCE EMPLOYEES, ONE MAINTENANCE SECRETARY, AND THE
SECTION SUPERVISOR WOULD REMAIN AT THE FORT SAM HOUSTON EXCHANGE. THE
COMPLAINANT AGREED THAT MAINTENANCE EMPLOYEES PHYSICALLY TRANSFERRED TO
THE STAE WOULD NO LONGER BE A PART OF ITS BARGAINING UNIT AND, IN THIS
REGARD, FOUR MAINTENANCE EMPLOYEES WERE TRANSFERRED PHYSICALLY FROM THE
FORT SAM HOUSTON EXCHANGE TO THE STAE AND THE ACTIVITY CEASED DEDUCTING
UNION DUES FROM THEIR PAY. HOWEVER, ON OR ABOUT APRIL 19, 1974, THE
COMPLAINANT WAS INFORMED THAT DUES DEDUCTIONS ALSO HAD BEEN TERMINATED
FOR THE FIVE MAINTENANCE SECTION EMPLOYEES REMAINING AT THE FORT SAM
HOUSTON EXCHANGE. THIS ACTION WAS JUSTIFIED BY THE RESPONDENT ON THE
GROUNDS THAT WHILE SOME MAINTENANCE EMPLOYEES RETAINED THE FORT SAM
HOUSTON EXCHANGE AS THEIR ASSIGNED DUTY STATION, THE ENTIRE MAINTENANCE
CREW HAD BEEN "TRANSFERRED" TO THE STAE. /2/
THE COMPLAINANT TOOK THE POSITION THAT THE REORGANIZATION HEREIN DID
NOT REMOVE THE MAINTENANCE EMPLOYEES REMAINING AT THE FORT SAM HOUSTON
EXCHANGE FROM THE CERTIFIED EXCLUSIVELY RECOGNIZED UNIT. MOREOVER, THE
COMPLAINANT MAINTAINED THAT, EVEN IF A "LEGITIMATE" REORGANIZATION
OCCURRED, AN ACTIVITY CANNOT WITHDRAW RECOGNITION WITHOUT FIRST FILING A
REPRESENTATION PETITION WITH THE ASSISTANT SECRETARY AND RECEIVING A
FAVORABLE DECISION. UNDER THESE CIRCUMSTANCES, THE COMPLAINANT
CONTENDED THAT THE RESPONDENT VIOLATED SECTION 19(A)(1), (5) AND (6) OF
THE ORDER WHEN, WITHOUT PRIOR CONSULTATION, IT WITHDREW RECOGNITION FROM
THE COMPLAINANT, DISCONTINUED UNION DUES DEDUCTIONS, AND LATER WITHHELD
THE TRANSMITTAL OF DUES PAYMENTS TO THE COMPLAINANT AFTER THE DUES
DEDUCTIONS WERE REINSTATED. ON THE OTHER HAND, THE RESPONDENT
MAINTAINED THAT, AS A RESULT OF A BONA FIDE REORGANIZATION WHICH
INCLUDED THE MAINTENANCE EMPLOYEES REMAINING AT THE FORT SAM HOUSTON
EXCHANGE, THE RESPONDENT HAD THE RIGHT TO WITHDRAW RECOGNITION FROM THE
COMPLAINANT WITH REGARD TO THOSE MAINTENANCE EMPLOYEES. /3/
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, I FIND THAT THE
REORGANIZATION HEREIN AMOUNTED TO NO MORE THAN AN ADMINISTRATIVE
TRANSFER AS TO THOSE MAINTENANCE EMPLOYEES REMAINING AT THE FORT SAM
HOUSTON EXCHANGE. THUS, WHILE SUBSEQUENT TO THE REORGANIZATION,
BOOKKEEPING MATTERS RELATIVE TO THESE EMPLOYEES WERE REASSIGNED FROM THE
FORT SAM HOUSTON EXCHANGE PERSONNEL OFFICE TO THE STAE, AND THEY WERE
COVERED ON DIFFERENT PAYROLLS, IT APPEARS THAT THESE MAINTENANCE
EMPLOYEES, AS BEFORE, WERE LOCATED AT THE FORT SAM HOUSTON EXCHANGE,
REPORTED TO WORK AT THE SAME PLACE, RECEIVED ASSIGNMENTS FROM AND WERE
RESPONSIBLE TO THE SAME IMMEDIATE SUPERVISOR, AND PERFORMED THE SAME
DUTIES AND MAINTAINED THE SAME WORK CONTACTS WITH OTHER EMPLOYEES WHO
UNDISPUTEDLY REMAINED IN THE FORT SAM HOUSTON EXCHANGE UNIT.
HOWEVER, CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, I FIND THAT WHILE
THE FACTS HEREIN ARE DISTINGUISHABLE FROM THOSE IN A/SLMR NO. 360, THE
ESSENTIAL ISSUE HEREIN PARALLELS THE ISSUE RAISED IN THAT CASE. THUS,
THE REORGANIZATION IN THE ABERDEEN CASE INVOLVED TWO SEPARATE EMPLOYING
AGENCIES WITHIN THE DEPARTMENT OF DEFENSE AND THE INSTANT CASE INVOLVED
TWO ADMINISTRATIVE COMPONENTS OF THE ARMY AND AIR FORCE EXCHANGE
SERVICE. IN THIS LATTER REGARD, IT WAS NOTED THAT, PRIOR TO THE
REORGANIZATION, THE FORT SAM HOUSTON EXCHANGE WAS RESPONSIBLE DIRECTLY
TO THE ALAMO EXCHANGE REGION WITHIN THE ARMY AND AIR FORCE EXCHANGE
SERVICE. AFTER THE REORGANIZATION, THE FORT SAM HOUSTON EXCHANGE
REMAINED RESPONSIBLE INDIRECTLY TO THE ALAMO EXCHANGE REGION BUT BECAME
DIRECTLY RESPONSIBLE TO THE STAE, WITH THE LATTER ASSUMING
RESPONSIBILITY FOR VARIOUS OVERHEAD FUNCTIONS PREVIOUSLY PERFORMED AT
THE FORT SAM HOUSTON EXCHANGE. WHILE THE EMPLOYER, AS SET FORTH IN THE
PARTIES' MOST RECENT NEGOTIATED AGREEMENT, IS THE ARMY AND AIR FORCE
EXCHANGE SERVICE, FORT SAM HOUSTON EXCHANGE, THE NEW ENTITY-- STAE--
ASSUMED CONTROL OF VARIOUS ADMINISTRATIVE FUNCTIONS FOR ALL UNIT
EMPLOYEES AT THE FORT SAM HOUSTON EXCHANGE, INCLUDING THOSE MAINTENANCE
EMPLOYEES REMAINING AT THE FORT SAM HOUSTON EXCHANGE. IN MY VIEW, UNDER
THESE CIRCUMSTANCES, AS IN ABERDEEN WHERE IT WAS FOUND THAT THE
EXCLUSIVELY RECOGNIZED UNIT HAD REMAINED INTACT FOLLOWING A
REORGANIZATION AND ADMINISTRATIVE TRANSFER BY A PARENT ORGANIZATION, ANY
ADDITIONAL COMPONENT ORGANIZATION WHICH HAS BEEN ADDED AS AN EMPLOYING
ENTITY VIS-A-VIS THE EXISTING EXCLUSIVELY RECOGNIZED UNIT, SHOULD BE
CONSIDERED AS A CO-EMPLOYER WITH COMMON RESPONSIBILITY FOR MAINTAINING
THE PRESENT TERMS AND CONDITIONS OF EMPLOYMENT FOR ALL EMPLOYEES IN THE
UNIT, INCLUDING THOSE CONTAINED IN ANY EXISTING NEGOTIATED AGREEMENT.
WHILE IT IS RECOGNIZED THAT AN AGENCY MUST BE PERMITTED TO CONDUCT
PERIODIC REORGANIZATIONS DESIGNED TO ACCOMPLISH ITS MISSION MORE
EFFICIENTLY, IN MY JUDGMENT, A BALANCE MUST BE STRUCK IN SUCH SITUATIONS
TO ASSURE THAT SUCH REORGANIZATIONS DO NOT UNNECESSARILY DESTROY
EXISTING CONSTRUCTIVE AND COOPERATIVE RELATIONSHIPS BETWEEN LABOR
ORGANIZATIONS AND AGENCY MANAGEMENT OR UNNECESSARILY IMPEDE THE
OPPORTUNITY OF EMPLOYEES TO PARTICIPATE IN THE FORMULATION AND
IMPLEMENTATION OF PERSONNEL POLICIES AND MATTERS AFFECTING THE
CONDITIONS OF THEIR EMPLOYMENT. PERMITTING AN AGENCY TO DESTROY
EXISTING BARGAINING RELATIONSHIPS WITH RESPECT TO AN ENTIRE UNIT OR A
PORTION OF A UNIT, BASED ON THE TYPE OF ADMINISTRATIVE REORGANIZATIONS
AS WAS INVOLVED IN THE INSTANT CASE, CLEARLY WOULD NOT FURTHER THE
FOREGOING GOALS, NOR WOULD THE RESULTING UNIT FRAGMENTATION HEREIN HAVE
THE DESIRED EFFECT OF PROMOTING EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS. /4/
UNDER THESE CIRCUMSTANCES, I FIND THAT THE FORT SAM HOUSTON EXCHANGE
AND THE STAE ARE CO-EMPLOYERS VIS-A-VIS THE EXISTING UNIT AT THE FORT
SAM HOUSTON EXCHANGE REPRESENTED BY THE COMPLAINANT AND, AS SUCH, THE
RESPONDENT AND THE FORT SAM HOUSTON EXCHANGE ARE RESPONSIBLE FOR
MAINTAINING THE PRESENT TERMS AND CONDITIONS OF EMPLOYMENT FOR ALL
EMPLOYEES IN THE UNIT, INCLUDING THOSE CONTAINED IN ANY EXISTING
NEGOTIATED AGREEMENT. /5/ AN INTEGRAL PART OF THE OBLIGATION TO ACCORD
APPROPRIATE RECOGNITION TO A LABOR ORGANIZATION QUALIFIED FOR SUCH
RECOGNITION IS THE OBLIGATION TO CONTINUE TO ACCORD SUCH RECOGNITION AS
LONG AS THE LABOR ORGANIZATION INVOLVED REMAINS QUALIFIED UNDER THE
PROVISIONS OF THE ORDER. IN VIEW OF THE ABOVE FINDING THAT THE
MAINTENANCE EMPLOYEES AT THE FORT SAM HOUSTON EXCHANGE CONTINUE TO
REMAIN IN THE EXCLUSIVELY RECOGNIZED UNIT, THE RESPONDENT, AS
CO-EMPLOYER OF THESE EMPLOYEES, WAS OBLIGATED TO CONTINUE TO ACCORD
RECOGNITION TO THE COMPLAINANT, INCLUDING THE OBLIGATION TO CONTINUE TO
HONOR ANY EXISTING NEGOTIATED AGREEMENT BETWEEN THE COMPLAINANT AND THE
FORT SAM HOUSTON EXCHANGE, AS IT PERTAINS TO THE MAINTENANCE EMPLOYEES
WORKING AT THE FORT SAM HOUSTON EXCHANGE.
ACCORDINGLY, AND NOTING ALSO THAT THE RESPONDENT DID NOT FILE A
REPRESENTATION PETITION SEEKING A DETERMINATION CONCERNING THE UNIT
REPRESENTED BY THE COMPLAINANT, I FIND THAT THE RESPONDENT'S CONDUCT
HEREIN CONSTITUTED AN IMPROPER PARTIAL WITHDRAWAL OF RECOGNITION WITH
RESPECT TO A LABOR ORGANIZATION QUALIFIED FOR SUCH RECOGNITION AND,
THEREBY, CONSTITUTED A VIOLATION OF SECTION 19(A)(5) OF THE ORDER.
ALSO, I FIND THAT, BY SUCH CONDUCT, THE RESPONDENT INTERFERED WITH,
RESTRAINED OR COERCED EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED
BY THE ORDER IN VIOLATION OF SECTION 19(A)(1) OF THE ORDER.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT VIOLATED
SECTION 19(A)(6) AND (1) OF THE ORDER BY ITS FAILURE "TO PROVIDE THE
UNION WITH APPROPRIATE NOTICE OF ITS INTENTION TO WITHDRAW RECOGNITION
FROM THE UNION AND AFFORDING IT AN OPPORTUNITY TO MEET AND CONFER WITH
REGARD THERETO . . ." IT HAS BEEN DETERMINED PREVIOUSLY, UNDER SIMILAR
CIRCUMSTANCES, THAT MATTERS RELATED TO AN IMPROPER REFUSAL TO ACCORD
APPROPRIATE RECOGNITION ARE INSEPARABLE FROM THE THEORY OF VIOLATION
DISCUSSED ABOVE WITH RESPECT TO THE 19(A)(1) AND (5) ALLEGATIONS AND
THAT SECTION 19(A)(6) IS NOT APPLICABLE IN SUCH A SITUATION. /6/
ACCORDINGLY, WHILE, UNDER THE CIRCUMSTANCES OF THIS CASE AND FOR THE
REASONS OUTLINED ABOVE, THE RESPONDENT'S CONDUCT HEREIN WAS CONSIDERED
VIOLATIVE OF SECTION 19(A)(1) AND (5) OF THE ORDER, I FIND THAT ITS
CONDUCT WAS NOT VIOLATIVE OF SECTION 19(A)(6). UNDER THESE
CIRCUMSTANCES, I SHALL ORDER THAT THE SECTION 19(A)(6) ALLEGATION BE
DISMISSED.
BY FAILING TO CONTINUE TO ACCORD APPROPRIATE RECOGNITION TO A LABOR
ORGANIZATION QUALIFIED FOR SUCH RECOGNITION AND ALSO FAILING TO CONTINUE
TO HONOR AN EXISTING NEGOTIATED AGREEMENT, THE RESPONDENT VIOLATED
SECTION 19(A)(5) OF EXECUTIVE ORDER 11491, AS AMENDED. BY SUCH CONDUCT
THE RESPONDENT ALSO INTERFERED WITH, RESTRAINED, OR COERCED EMPLOYEES IN
THE EXERCISE OF RIGHTS ASSURED BY THE ORDER IN VIOLATION OF SECTION
19(A)(1).
HAVING FOUND THAT THE RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTION 19(A)(1) AND (5) OF EXECUTIVE ORDER 11491, AS
AMENDED, I SHALL ORDER THE RESPONDENT TO CEASE AND DESIST THEREFROM AND
TAKE CERTAIN AFFIRMATIVE ACTIONS, AS SET FORTH BELOW, DESIGNED TO
EFFECTUATE THE PURPOSES AND POLICIES OF THE ORDER.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS /7/ THAT THE ARMY AND AIR
FORCE EXCHANGE SERVICE, SOUTH TEXAS AREA EXCHANGE, LACKLAND AIR FORCE
BASE, TEXAS, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO ACCORD APPROPRIATE RECOGNITION TO THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3202, AFL-CIO, AND REFUSING TO
HONOR ANY EXISTING NEGOTIATED AGREEMENT WITH THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 3202, AFL-CIO, AS IT PERTAINS TO THE
MAINTENANCE EMPLOYEES AT THE FORT SAM HOUSTON EXCHANGE.
(B) INTERFERING WITH, RESTRAINING, OR COERCING UNIT EMPLOYEES AT THE
FORT SAM HOUSTON EXCHANGE BY REFUSING TO ACCORD APPROPRIATE RECOGNITION
TO THEIR EXCLUSIVE BARGAINING REPRESENTATIVE, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 3202, AFL-CIO, AND BY REFUSING TO HONOR ANY
EXISTING NEGOTIATED AGREEMENT WITH THAT LABOR ORGANIZATION.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES REPRESENTED BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 3202, AFL-CIO, IN THE EXERCISE OF RIGHTS
ASSURED BY EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE ORDER:
(A) UPON REQUEST, ACCORD APPROPRIATE RECOGNITION TO THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3202, AFL-CIO, FOR UNIT
EMPLOYEES, INCLUDING MAINTENANCE EMPLOYEES REPORTING TO WORK AT THE FORT
SAM HOUSTON EXCHANGE, FORT SAM HOUSTON, TEXAS, IN THE FOLLOWING
CERTIFIED UNIT:
ALL REGULAR FULL-TIME AND REGULAR PART-TIME HOURLY PAY PLAN AND
COMMISSION PAID CIVILIAN
EMPLOYEES, ALL OFF-DUTY MILITARY PERSONNEL EMPLOYED IN EITHER OF THE
FOREGOING CATEGORIES, AND
ALL TEMPORARY EMPLOYEES IN THE ABOVE CATEGORIES WHO ARE EMPLOYED
CONTINUOUSLY FOR A PERIOD OF
MORE THAN 180 DAYS, EMPLOYED BY THE FORT SAM HOUSTON EXCHANGE WHICH
INCLUDES CAMP BULLIS,
CANYON LAKE, PORT O'CONNOR, AND FORT SAM HOUSTON; EXCLUDING ALL
TEMPORARY FULL-TIME AND
TEMPORARY PART-TIME EMPLOYEES EMPLOYED IN A PERIOD OF 180 DAYS OR
LESS, ON CALL, CASUAL,
MANAGEMENT OFFICIALS, MANAGERIAL TRAINEES (WHO PERFORM SUPERVISORY
DUTIES), PROFESSIONALS,
PERSONNEL WORKERS IN OTHER THAN A PURELY CLERICAL CAPACITY, WATCHMEN,
SUPERVISORS AND GUARDS
AS DEFINED IN EO 11491.
(B) HONOR ALL TERMS OF ANY EXISTING NEGOTIATED AGREEMENT WITH THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3202, AFL-CIO.
(C) REMIT TO THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
3202, AFL-CIO, ALL MONEY DEDUCTED FROM UNIT EMPLOYEES' PAY WHICH WAS
WITHHELD FROM THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
3202, AFL-CIO, BUT IS RETAINED IN ESCROW.
(D) POST AT ITS FACILITY AT THE FORT SAM HOUSTON EXCHANGE, FORT SAM
HOUSTON, TEXAS, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS
TO BE FURNISHED BY THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT
RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
GENERAL MANAGER, SOUTH TEXAS AREA EXCHANGE, LACKLAND AIR FORCE BASE,
TEXAS, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE GENERAL MANAGER SHALL TAKE
REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
OR COVERED BY ANY OTHER MATERIAL.
(E) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE COMPLAINT INSOFAR AS IT ALLEGES AS
VIOLATION OF SECTION 19(A)(6) AND ADDITIONAL VIOLATIONS OF SECTION
19(A)(1) OF EXECUTIVE ORDER 11491, AS AMENDED, BE, AND IT HEREBY IS,
DISMISSED.
DATED, WASHINGTON, D.C.
JULY 31, 1975
/1/ THE COMPLAINANT WAS CERTIFIED ON SEPTEMBER 3, 1971, AS THE
EXCLUSIVE REPRESENTATIVE OF ALL REGULAR FULL-TIME AND REGULAR PART-TIME
HOURLY PAID EMPLOYEES AND CERTAIN TEMPORARY PERSONNEL EMPLOYED BY THE
FORT SAM HOUSTON EXCHANGE. THE RECORD REVEALED THAT THE PARTIES' MOST
RECENT NEGOTIATED AGREEMENT WAS EXECUTED IN APRIL 1972 AND REMAINED
EFFECTIVE THROUGH APRIL 1975.
/2/ UNKNOWN TO THE COMPLAINANT UNTIL SHORTLY BEFORE THE HEARING IN
THE CASE, AFTER A BRIEF HIATUS IN APRIL 1974, DUES DEDUCTIONS WERE
RESUMED FOR THE MAINTENANCE EMPLOYEES AT THE FORT SAM HOUSTON EXCHANGE
BUT THE MONEY WAS RETAINED IN ESCROW PENDING RESOLUTION OF THE DISPUTE.
/3/ ADDITIONALLY, THE RESPONDENT ASSERTED THAT THE ISSUE HEREIN
CLOSELY PARALLELS THE ISSUE BEFORE THE FEDERAL LABOR RELATIONS COUNCIL
(COUNCIL) IN DEFENSE SUPPLY AGENCY, DEFENSE PROPERTY DISPOSAL OFFICE,
ABERDEEN PROVING GROUND, ABERDEEN MARYLAND, A/SLMR NO. 360, AND
REQUESTED THAT A DECISION IN THIS MATTER BE DELAYED PENDING THE
COUNCIL'S DETERMINATION IN ABERDEEN.
/4/ NOTING THAT THE INSTANT REORGANIZATION TOOK PLACE WITHIN A SINGLE
AGENCY AS DISTINGUISHED FROM A REORGANIZATION ACROSS AGENCY LINES, AS
OCCURRED IN A/SLMR NO. 360, I FIND NO USEFUL PURPOSE IN DELAYING THE
ISSUANCE OF THIS DECISION UNTIL SUCH TIME AS THE COUNCIL HAS RULED IN
THE ABERDEEN CASE.
/5/ IT IS, OF COURSE, THE RESPONSIBILITY OF MANAGEMENT TO DECIDE HOW
IT WILL FULFILL ITS MANAGEMENT ROLE WITH RESPECT TO DEALING WITH ANY
EXCLUSIVE BARGAINING REPRESENTATIVE. THUS, IN THIS INSTANCE, IT WILL BE
INCUMBENT UPON THE CO-EMPLOYERS TO TAKE THE NECESSARY STEPS TO DESIGNATE
AN APPROPRIATE MANAGEMENT REPRESENTATIVE OR REPRESENTATIVES TO DEAL WITH
THE COMPLAINANT CONCERNING APPROPRIATE MATTERS RELATED TO THE BARGAINING
UNIT.
/6/ SEE UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF THE NAVY,
NAVAL AIR RESERVE TRAINING UNIT, MEMPHIS, TENNESSEE, A/SLMR NO. 106 AND
DEFENSE SUPPLY AGENCY, DEFENSE PROPERTY DISPOSAL OFFICE, ABERDEEN
PROVING GROUND, ABERDEEN MARYLAND, A/SLMR NO. 360. IT SHOULD BE NOTED
ADDITIONALLY THAT, UNDER THE CIRCUMSTANCES OF THIS CASE, THE
RESPONDENT'S CONDUCT IN PARTIALLY WITHDRAWING RECOGNITION FROM THE
COMPLAINANT WAS VIEWED AS IMPROPER IRRESPECTIVE OF WHETHER IT HAD
AFFORDED THE COMPLAINANT WITH APPROPRIATE NOTICE OF ITS INTENTION IN
THIS REGARD.
/7/ IN ITS EXCEPTIONS THE RESPONDENT MAINTAINED THAT SHORTLY AFTER
THE HEARING IN THIS MATTER ALL DUES MONEY HELD IN ESCROW WAS REFUNDED TO
THE EMPLOYEES INVOLVED AND THAT REMEDIAL PROVISIONS REGARDING THE
PAYMENT OF THIS DUES MONEY TO THE COMPLAINANT WERE NO LONGER APPLICABLE.
IN MY VIEW, SUCH MATTERS MAY BEST BE RAISED IN THE COMPLIANCE PHASE OF
THIS MATTER. THEREFORE, I ADOPT, AS MODIFIED HEREIN, THE ADMINISTRATIVE
LAW JUDGE'S RECOMMENDATIONS REGARDING THE RETURN TO THE COMPLAINANT OF
UNIT EMPLOYEES DUES.
WE WILL NOT REFUSE TO ACCORD APPROPRIATE RECOGNITION TO THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3202, AFL-CIO, OR REFUSE TO
HONOR ANY EXISTING NEGOTIATED AGREEMENT WITH THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 3202, AFL-CIO, AS IT PERTAINS TO MAINTENANCE
EMPLOYEES AT THE FORT SAM HOUSTON EXCHANGE.
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE UNIT EMPLOYEES AT THE
FORT SAM HOUSTON EXCHANGE BY REFUSING TO ACCORD APPROPRIATE RECOGNITION
TO THEIR EXCLUSIVE BARGAINING REPRESENTATIVE, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 3202, AFL-CIO, AND BY REFUSING TO HONOR ANY
EXISTING NEGOTIATED AGREEMENT WITH THAT LABOR ORGANIZATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES REPRESENTED BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 3202, AFL-CIO, IN THE EXERCISE OF RIGHTS
ASSURED BY EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL, UPON REQUEST, ACCORD APPROPRIATE RECOGNITION TO THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3202, AFL-CIO, AS THE
EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE FOR OUR EMPLOYEES,
INCLUDING MAINTENANCE EMPLOYEES REPORTING TO WORK AT THE FORT SAM
HOUSTON EXCHANGE, FORT SAM HOUSTON, TEXAS, IN THE FOLLOWING CERTIFIED
UNIT:
ALL REGULAR FULL-TIME AND REGULAR PART-TIME HOURLY PAY PLAN AND
COMMISSION PAID CIVILIAN
EMPLOYEES, ALL OFF-DUTY MILITARY PERSONNEL EMPLOYED IN EITHER OF THE
FOREGOING CATEGORIES, AND
ALL TEMPORARY EMPLOYEES IN THE ABOVE CATEGORIES WHO ARE EMPLOYED
CONTINUOUSLY FOR A PERIOD OF
MORE THAN 180 DAYS, EMPLOYED BY THE FORT SAM HOUSTON EXCHANGE WHICH
INCLUDES CAMP BULLIS,
CANYON LAKE, PORT O'CONNOR, AND FORT SAM HOUSTON; EXCLUDING ALL
TEMPORARY FULL-TIME AND
TEMPORARY PART-TIME EMPLOYEES EMPLOYED IN A PERIOD OF 180 DAYS OR
LESS, ON CALL, CASUAL,
MANAGEMENT OFFICIALS, MANAGERIAL TRAINEES (WHO PERFORM SUPERVISORY
DUTIES), PROFESSIONALS,
PERSONNEL WORKERS IN OTHER THAN A PURELY CLERICAL CAPACITY, WATCHMEN,
AND SUPERVISORS AND
GUARDS AS DEFINED IN EO 11491.
WE WILL HONOR ALL TERMS OF ANY EXISTING NEGOTIATED AGREEMENT WITH THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3202, AFL-CIO.
WE WILL REMIT TO THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 3202, AFL-CIO, ALL MONEY DEDUCTED FROM UNIT EMPLOYEES' PAY WHICH
WAS WITHHELD FROM THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
3202, AFL-CIO, BUT IS RETAINED IN ESCROW.
DATED . . . BY . . .
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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR, WHOSE ADDRESS IS: ROOM 2200 FEDERAL OFFICE BUILDING, 911 WALNUT
STREET, KANSAS CITY, MISSOURI 64106.
IN THE MATTER OF
ARMY AND AIR FORCE EXCHANGE SERVICE,
SOUTH TEXAS AREA EXCHANGE,
LACKLAND AIR FORCE BASE, TEXAS
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3202
ROBERT E. EDWARDS
ASSISTANT GENERAL COUNSEL
LABOR RELATIONS LAW BRANCH
ARMY AND AIR FORCE EXCHANGE SERVICE
DALLAS, TEXAS 75222
GLEN J. PETERSON
NATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
POST OFFICE BOX BB
BOERNE, TEXAS 78006
BEFORE: SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
THIS PROCEEDING HEARD IN SAN ANTONIO, TEXAS, ON OCTOBER 1, 1974,
ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED (HEREAFTER CALLED THE
ORDER). PURSUANT TO THE REGULATIONS OF THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS (HEREAFTER CALLED THE ASSISTANT
SECRETARY), A NOTICE OF HEARING ON COMPLAINT ISSUED ON AUGUST 16, 1974,
WITH REFERENCE TO ALLEGED VIOLATIONS OF SECTIONS 19(A)(1), (5) AND (6)
OF THE ORDER AS SET FORTH IN A COMPLAINT FILED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3202 (HEREAFTER
CALLED THE UNION OR COMPLAINANT) AGAINST ARMY AND AIR FORCE EXCHANGE
SERVICE, SOUTH TEXAS AREA EXCHANGE, LACKLAND AIR FORCE BASE, TEXAS
(HEREAFTER CALLED THE ACTIVITY OR RESPONDENT). IN ITS COMPLAINT THE
UNION ALLEGED THAT THE ACTIVITY VIOLATED THE ORDER WHEN, AFTER A
REORGANIZATION, IT DISCONTINUED RECOGNIZING THE UNION AS THE EXCLUSIVE
COLLECTIVE BARGAINING REPRESENTATIVE FOR CERTAIN MAINTENANCE EMPLOYEES.
AT THE HEARING THE PARTIES WERE REPRESENTED BY COUNSEL AND WERE
AFFORDED FULL OPPORTUNITY TO ADDUCE EVIDENCE, CALL, EXAMINE AND
CROSS-EXAMINE WITNESSES AND ARGUE ORALLY. ORAL ARGUMENT WAS WAIVED AND
BRIEFS WERE FILED BY BOTH PARTIES.
UPON THE ENTIRE RECORD IN THIS MATTER, FROM MY READING OF THE BRIEFS
AND BY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE
FOLLOWING:
AT ALL TIMES SINCE CERTIFIED BY THE ASSISTANT SECRETARY ON SEPTEMBER
3, 1971, THE UNION HAS BEEN THE EXCLUSIVE COLLECTIVE BARGAINING
REPRESENTATIVE OF ALL REGULAR FULL-TIME AND REGULAR PART-TIME HOURLY
PAID EMPLOYEES AND CERTAIN TEMPORARY PERSONNEL EMPLOYED BY THE FORT SAM
HOUSTON EXCHANGE (FORT SAM EXCHANGE) WHICH INCLUDED FORT SAM HOUSTON
(FORT SAM), CAMP BULLIS, CANYON LAKE AND PORT O'CONNOR. /1/ THE FORT
SAM EXCHANGE AND THE UNION ARE PARTIES TO A COLLECTIVE BARGAINING
AGREEMENT SIGNED IN APRIL 1972 AND EFFECTIVE TO APRIL 1975. THE
AGREEMENT PROVIDES, INTER ALIA, THAT A UNIT EMPLOYEE MAY VOLUNTARILY
AUTHORIZE UNION DUES DEDUCTION FROM HIS PAY, SAID MONEY TO BE REMITTED
BY THE ACTIVITY TO THE UNION ON A BIWEEKLY BASIS.
PRIOR TO JANUARY 1974, FORT SAM EXCHANGE WAS AN AUTONOMOUS EXCHANGE
RESPONSIBLE DIRECTLY TO THE ALAMO EXCHANGE REGION. /2/ AS AN AUTONOMOUS
EXCHANGE IT PERFORMED ITS OWN ACCOUNTING AND PERSONNEL FUNCTIONS,
CONTRACT ADMINISTRATION AND RETAIL AND SERVICE OPERATIONS, ALL WITH
SEPARATE MANAGERS RESPONSIBLE TO A GENERAL MANAGER FOR THE ENTIRE
EXCHANGE. EFFECTIVE JANUARY 26, 1974, A REORGANIZATION WAS INSTITUTED
WHEREBY FORT SAM EXCHANGE ALONG WITH RANDOLPH AFB WAS ADDED TO THE SOUTH
TEXAS AREA EXCHANGE (HEREAFTER REFERRED TO A STAE, /3/ HEADQUARTERED AT
LACKLAND AFB, A DISTANCE OF SOME 13 MILES FROM FORT SAM. /4/ THE
REORGANIZATION REALIZED CERTAIN ECONOMIES OF OPERATION IN THAT THE
VARIOUS ADMINISTRATIVE "OVERHEAD" FUNCTIONS SUCH AS ACCOUNTING,
PERSONNEL, CONTRACT ADMINISTRATION AND CERTAIN MANAGEMENT OPERATIONS
WERE PHASED OUT AND WERE HENCEFORTH PERFORMED CENTRALLY AT STAE FOR ALL
EXCHANGES INCLUDED WITHIN ITS JURISDICTION. AS A RESULT OF THE
REORGANIZATION NUMEROUS EMPLOYEES WORKING IN "OVERHEAD" OPERATIONS WERE
TRANSFERRED TO OTHER EXCHANGES IN EQUIVALENT POSITIONS. SOME MANAGERIAL
EMPLOYEES WERE SUBJECT TO REDUCTION IN FORCE PROCEDURES.
SOMETIME IN MARCH 1974, THE UNION WAS NOTIFIED BY THE ACTIVITY THAT
THE REORGANIZATION WOULD RESULT IN A PORTION OF THE FORT SAM EXCHANGE
MAINTENANCE SECTION (UNIT EMPLOYEES) BEING PHYSICALLY TRANSFERRED TO
LACKLAND AFB. IN EARLY APRIL THE UNION RECEIVED NOTICE THAT FOUR OF THE
FORT SAM EXCHANGE MAINTENANCE EMPLOYEES WERE BEING TRANSFERRED BUT THE
REMAINING FOUR MAINTENANCE EMPLOYEES, ONE MAINTENANCE SECRETARY AND THE
SECTION SUPERVISOR WOULD REMAIN AT FORT SAM WITH NO FURTHER CHANGES
INVISIONED. THE UNION HAD AGREED THAT UPON PHYSICAL TRANSFER FROM FORT
SAM TO LACKLAND AFB THE EMPLOYEES WOULD NO LONGER BE PART OF THE FORT
SAM EXCHANGE UNIT AND DISCONTINUANCE OF UNION DUES DEDUCTIONS WOULD BE
APPROPRIATE. ACCORDINGLY, WHEN THE RELOCATION WAS ACCOMPLISHED THE
ACTIVITY CEASED DEDUCTING UNION DUES FROM THEIR EMPLOYEES' PAY.
ON OR ABOUT APRIL 19, 1974, THE UNION RECEIVED FROM THE ACTIVITY A
REGISTER SHOWING THOSE EMPLOYEES FROM WHOSE PAY UNION DUES HAD BEEN
DEDUCTED BY THE ACTIVITY FOR THE PRIOR TWO WEEK WORK PERIOD. THE
REGISTER REVEALED THAT NO UNION DUES HAD BEEN DEDUCTED FOR THE FIVE
MAINTENANCE SECTION EMPLOYEES REMAINING AT FORT SAM. THE UNION'S
PRESIDENT, MRS. FLO VALENTINE, CONTACTED DOUGLAS WARREN STAE PERSONNEL
MANAGER AT LACKLAND AFB, AND WAS INFORMED THAT THE REORGANIZATION
RESULTED IN THE ENTIRE MAINTENANCE CREW BEING "TRANSFERRED" TO LACKLAND
AFB. IT WAS THE ACTIVITY'S POSITION THAT ALTHOUGH SOME EMPLOYEES KEPT
FORT SAM AS THEIR ASSIGNED DUTY STATION, EFFECTIVE APRIL 6, 1974, THE
WERE ALL PAID FROM LACKLAND AFB, AND THE REORGANIZATION REMOVED ALL
MAINTENANCE EMPLOYEES FROM THE COLLECTIVE BARGAINING UNIT. THE UNION
OBJECTED AND THE COMPLAINT HEREIN WAS SUBSEQUENTLY FILED. /5/ UNKNOWN
TO THE UNION UNTIL SHORTLY BEFORE THE HEARING, WHILE DUES WERE NOT
DEDUCTED FROM FORT SAM MAINTENANCE EMPLOYEES' PAY FOR A PERIOD IN APRIL
1974, THE ACTIVITY THEREAFTER DEDUCTED UNION DUES FROM THESE EMPLOYEES
BUT RETAINED THE MONEY IN ESCROW PENDING RESOLUTION OF THE DISPUTE.
THE EVIDENCE DISCLOSES THAT AT ALL TIMES BEFORE AND AFTER THE
REORGANIZATION THE MAINTENANCE EMPLOYEES WHO WERE NOT PHYSICALLY
TRANSFERRED TO LACKLAND AFB BUT WERE ADMINISTRATIVELY "TRANSFERRED" TO
STAE REPORTED TO AND RECEIVED ASSIGNMENTS FROM THE SAME IMMEDIATE
SUPERVISOR, AT THE SAME BUILDING AT FORT SAM. FURTHER, AFTER THE
REORGANIZATION THESE EMPLOYEES PERFORMED THE SAME DUTIES OF GENERAL
MAINTENANCE REPAIR AND RENOVATION AT THE SAME LOCATIONS TO APPROXIMATELY
THE SAME DEGREE /6/ AS BEFORE THE REORGANIZATION. SINCE THEY PERFORMED
THE SAME FUNCTIONS AS PRIOR TO THE REORGANIZATION, MAINTENANCE
EMPLOYEES' CONTACTS WITH OTHER UNIT EMPLOYEES REMAINED THE SAME
THROUGHOUT. /7/
SOME PROCEDURAL CHANGES RESULTED FROM THE REORGANIZATION OF THE
MAINTENANCE SECTION. THUS, THE MAINTENANCE SECTION SUPERVISOR'S
IMMEDIATE SUPERIOR, MR. GRAY, THE EQUIPMENT AND FACILITIES MANAGER AT
THE FORT SAM EXCHANGE WAS RIF'D AFTER WHICH THE MAINTENANCE SUPERVISOR
WAS RESPONSIBLE TO JOSEPH GODWIN, THE EQUIPMENT AND FACILITIES MANAGER
FOR STAE AT LACKLAND AFB. ALTHOUGH WORK ORDERS CONTINUED TO BE SENT TO
THE MAINTENANCE SECTION AT FORT SAM FROM THE FORT SAM EXCHANGE GENERAL
MANAGER AND VARIOUS OPERATIONS MANAGERS (FOOD, RETAIL AND SERVICE
OPERATIONS), AFTER THE REORGANIZATION WORK ORDER VALUED OVER $250 AND
ORDERS FOR WORK TO BE PERFORMED AT THE ALAMO EXCHANGE REGIONAL OFFICE
WERE REQUIRED TO BE APPROVED FIRST BY STAE. PRIOR TO THE REORGANIZATION
ALL WORK ORDERS REGARDLESS OF VALUE REQUIRED THE APPROVAL OF GRAY.
THE REORGANIZATION RESULTED IN LITTLE CHANGE IN MAINTENANCE SECTION
SUPERVISOR JAMES SHRECK'S RELATIONSHIP TO MAINTENANCE EMPLOYEES. WHILE
SHRECK NO LONGER APPROVES ANNUAL OR SICK LEAVE REQUESTS, HE STILL
PARTICIPATES IN THE PERFORMANCE EVALUATION OF THOSE MAINTENANCE
EMPLOYEES WHO REPORT TO WORK AT FORT SAM AND ARE UNDER HIS DIRECTION AND
CONTROL.
THE UNION CONTENDS THAT WITH REGARD TO THE MAINTENANCE EMPLOYEES WHO
CONTINUED TO REPORT TO WORK AT FORT SAM NO REORGANIZATION OCCURRED WHICH
WOULD HAVE THE EFFECT OF REMOVING THESE EMPLOYEES FROM THE CERTIFIED
COLLECTIVE BARGAINING UNIT. THE UNION FURTHER CONTENDS THAT EVEN IF A
LEGITIMATE REORGANIZATION TOOK PLACE, AN ACTIVITY CANNOT WITHDRAW
RECOGNITION FROM A UNION WITHOUT FIRST FILING A REPRESENTATION PETITION
WITH THE ASSISTANT SECRETARY AND RECEIVING A FAVORABLE DECISION. THE
UNION ALSO TAKES THE POSITION THAT THE ACTIVITY VIOLATED SECTIONS
19(A)(1), (5) AND (6) WHEN IT, WITHOUT PRIOR CONSULTATION, WITHDREW
RECOGNITION FROM THE UNION, DISCONTINUED UNION DUES DEDUCTIONS AND LATER
WITHHELD DUES FROM THE UNION AFTER DUES DEDUCTIONS WERE REINSTATED.
THE ACTIVITY CONTENDS THAT THE REORGANIZATION WAS BONAFIDE AND
ACCORDINGLY NO VIOLATION OF THE ORDER OCCURRED WHEN IT WITHDREW
RECOGNITION FROM THE UNION AS THE COLLECTIVE BARGAINING REPRESENTATIVE
OF THOSE MAINTENANCE EMPLOYEES WHO CONTINUED TO REPORT TO FORT SAM.
I FIND THAT THE REORGANIZATION HEREIN WAS NOT OF SUCH A NATURE AS TO
PRIVILEGE THE ACTIVITY TO WITHDRAW RECOGNITION FROM THE UNION WITH
REGARD TO THE MAINTENANCE EMPLOYEES WHO REMAINED AT FORT SAM. AS TO
THESE EMPLOYEES, THE REORGANIZATION VIRTUALLY AMOUNTED TO NO MORE THAT A
PAPER TRANSFER WHEREBY THEY WERE THEREAFTER CARRIED ON A DIFFERENT
PAYROLL AND BOOKKEEPING MATTERS RELATIVE TO THEM WERE REASSIGNED FROM
FORT SAM EXCHANGE PERSONNEL TO STAE PERSONNEL AT LACKLAND AFB. AS
STATED ABOVE, BEFORE AND AFTER THE REORGANIZATION THE EMPLOYEES IN
QUESTION REPORTED TO WORK AT THE SAME PLACE, RECEIVED ASSIGNMENTS FROM
AND WERE RESPONSIBLE TO THE SAME IMMEDIATE SUPERVISOR, PERFORMED THE
SAME DUTIES AND MAINTAINED THE SAME WORK CONTACTS WITH EMPLOYEES WHO
REMAINED UNDISPUTEDLY IN THE FORT SAM EXCHANGE UNIT. WHILE FORT SAM
MAINTENANCE EMPLOYEES MAY THEORETICALLY BE GIVEN ASSIGNMENTS ANYWHERE
WITHIN STAE /8/ IN PRACTICE THEY HAVE BEEN ASSIGNED DUTIES AT THE SAME
GEOGRAPHICAL LOCATIONS WITH APPROXIMATELY THE SAME FREQUENCY AS BEFORE
THEY WERE ADMINISTRATIVELY REASSIGNED. IN THESE CIRCUMSTANCES I FIND
THAT THE COMMUNITY OF INTEREST THE FORT SAM EXCHANGE MAINTENANCE
EMPLOYEES SHARED WITH OTHER UNIT EMPLOYEES WAS UNDISTURBED BY THE
REORGANIZATION AND THEIR NOMINAL TRANSFER TO STAE. THEREFORE, AT ALL
TIMES RELEVANT HERETO THEY REMAINED IN THE CERTIFIED COLLECTIVE
BARGAINING AGREEMENT IN EFFECT HEREIN. /9/ ACCORDINGLY, I FIND AN
CONCLUDE THAT:
1. BY FAILING TO CONTINUE TO ACCORD APPROPRIATE RECOGNITION TO THE
UNION AND ALSO FAILING
TO CONTINUE TO HONOR THE NEGOTIATED AGREEMENT RESPONDENT HAS VIOLATED
SECTIONS 19(A)(5) AND
19(A)(1) OF THE ORDER. /10/
2. BY WITHHOLDING FROM THE UNION DUES DEDUCTED FROM UNIT EMPLOYEES'
PAY RESPONDENT HAS
VIOLATED SECTION 19(A)(1) OF THE ORDER.
3. BY FAILING TO PROVIDE THE UNION WITH APPROPRIATE NOTICE OF ITS
INTENTION TO WITHDRAW
RECOGNITION FROM THE UNION AND AFFORDING IT AN OPPORTUNITY TO MEET
AND CONFER WITH REGARD
THERETO RESPONDENT HAS VIOLATED SECTIONS 19(A)(6) AND (1) OF THE
ORDER. /11/
IN ITS BRIEF, THE ACTIVITY SUGGESTS THAT THE ISSUES HEREIN "CLOSELY
PARALLEL" THOSE UNDERTAKEN FOR REVIEW BY THE FEDERAL LABOR RELATIONS
COUNCIL IN THE ABERDEEN PROVING GROUND CASE (SUPRA) /12/ IN THAT THE
COUNCIL STATED IT WOULD CONSIDER AMONG OTHER ISSUES THE PRINCIPLE OF
"CO-EMPLOYERS" AS ESTABLISHED BY THE ASSISTANT SECRETARY AND THE EFFECT
OF CIVIL SERVICE COMMISSION REGULATIONS CONCERNING DUES WITHHOLDING IN
THE CIRCUMSTANCES OF THAT CASE. ACCORDINGLY, THE ACTIVITY REQUESTS THAT
A DECISION IN THE CASE HEREIN BE DELAYED UNTIL SUCH TIME AS THE COUNCIL
HAS RULED ON THE ABERDEEN PROVING GROUND CASE.
I FIND THE FACTS OF ABERDEEN TO BE SUBSTANTIALLY DIFFERENT FROM THE
CASE HEREIN. IN ABERDEEN A REORGANIZATION INVOLVING TWO DIFFERENT
EMPLOYERS TOOK PLACE. IN THE CASE HEREIN, THE EMPLOYER AS SET FORTH IN
THE COLLECTIVE BARGAINING AGREEMENT HEREIN IS THE ARMY AND AIR FORCE
EXCHANGE SERVICE (AAFES), FORT SAM HOUSTON EXCHANGE SERVICE, FORT SAM
HOUSTON, TEXAS. AAFES IS A NON-APPROPRIATED FUND ACTIVITY OF THE
DEPARTMENT OF DEFENSE. ORGANIZATIONALLY THE ALAMO EXCHANGE REGION AT
ALL TIMES HAS BEEN SUBORDINATE TO AAFES AND PRIOR TO THE REORGANIZATION
THE FORT SAM EXCHANGE WAS DIRECTLY RESPONSIBLE TO THE ALAMO EXCHANGE
REGIONAL OFFICE AS WAS STAE. AFTER THE REORGANIZATION THE FORT SAM
EXCHANGE BECAME DIRECTLY RESPONSIBLE TO STAE BUT NEVERTHELESS REMAINED
INDIRECTLY SUBORDINATE TO THE ALAMO EXCHANGE REGION. THERE STILL
REMAINS AN AAFES, AN ALAMO EXCHANGE REGION AND A FORT SAM HOUSTON
EXCHANGE. ACCORDINGLY, IN MY OPINION THE REORGANIZATION DID NOT RESULT
IN A NEW OR DIFFERENT EMPLOYER. RATHER THE SAME EMPLOYER CONTINUED IN
EXISTENCE BUT A DIFFERENT SYSTEM OF MANAGEMENT WAS INAUGURATED WHICH
TOOK THE FORM OF A CONSOLIDATION OF ADMINISTRATIVE FUNCTIONS AND A
SIMPLE REVISION OF MANAGERIAL HIERARCHY WHICH HAD LITTLE IMPACT UPON
THOSE EMPLOYEES WHO WERE NOT RELOCATED. /13/ IN THESE CIRCUMSTANCES NO
USEFUL PURPOSE WOULD BE SERVED BY DELAYING THE ISSUANCE OF THIS
DECISION. /14/
RESPONDENT HAD DEDUCTED UNION DUES FROM UNIT EMPLOYEES AND FAILED TO
FORWARD SUCH MONEY TO THE UNION. IN ORDER TO MAKE WHOLE THE UNION,
RESPONDENT MUST NOW REMIT TO THE UNION ALL ACCUMULATED SUMS DUE AND
OWING. THE GENERAL PRINCIPLE IS NOW WELL SETTLED IN THE PRIVATE SECTOR
UNDER THE NATIONAL LABOR RELATIONS ACT THAT IN FULFILLING THE OBLIGATION
TO PAY MONIES WHICH A PARTY WOULD HAVE RECEIVED BUT FOR A VIOLATION OF
THE ACT, IT IS JUST AND PROPER TO REQUIRE THE PAYMENT OF INTEREST ON
SUCH MONIES FOR THE PERIOD INVOLVED. /15/
UNDER SECTION 6(B) OF THE ORDER /16/ THE ASSISTANT SECRETARY HAS
BROAD AUTHORITY TO FASHION APPROPRIATE REMEDIES FOR VIOLATIONS OF THE
ORDER. IN MY OPINION THE REASONING SUPPORTING THE PAYMENT OF INTEREST
IN THE PRIVATE SECTOR IS EQUALLY APPLICABLE TO THE FEDERAL SECTOR. SUCH
PAYMENT IS NOT A PENALTY BUT RATHER TO COMPENSATE FOR THE LOSS OF THE
USE OF THE MONEY WRONGFULLY WITHHELD. ACCORDINGLY, I RECOMMEND THAT THE
DUES WITHHELD BY RESPONDENT HEREIN BE REMITTED TO THE UNION WITH
INTEREST THEREON AT THE RATE OF 6 PERCENT PER ANNUM, COMPUTED IN THE
MANNER DESCRIBED IN ISIS PLUMBING AND HEATING CO., 138 NLRB 716.
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT PROHIBITED BY
SECTIONS 19(A)(1), (5) AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED, I
RECOMMEND THAT THE ASSISTANT SECRETARY ADOPT THE ORDER AS HEREINAFTER
SET FORTH WHICH IS DESIGNED TO EFFECTUATE THE POLICIES OF THE ORDER.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT ARMY AND AIR FORCE
EXCHANGE SERVICE, SOUTH TEXAS AREA EXCHANGE, LACKLAND AIR FORCE BASE,
TEXAS, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO ACCORD APPROPRIATE RECOGNITION TO AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3202, AND REFUSING TO HONOR THE
EXISTING NEGOTIATED AGREEMENT WITH AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3202, AS IT PERTAINS TO MAINTENANCE EMPLOYEES
AT THE FORT SAM HOUSTON EXCHANGE.
(B) WITHDRAWING RECOGNITION FROM AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3202, WITH REGARD TO ITS RIGHT TO REPRESENT
ALL EMPLOYEES EXCLUSIVELY REPRESENTED BY THAT LABOR ORGANIZATION WITHOUT
PROVIDING THAT LABOR ORGANIZATION WITH APPROPRIATE NOTICE OF ITS
INTENTION TO WITHDRAW RECOGNITION FROM THAT LABOR ORGANIZATION AND
AFFORDING IT AN OPPORTUNITY TO MEET AND CONFER WITH REGARD THERETO TO
THE EXTENT CONSONANT WITH LAW AND REGULATIONS.
(C) INTERFERING WITH, RESTRAINING OR COERCING UNIT EMPLOYEES AT THE
FORT SAM HOUSTON EXCHANGE BY REFUSING TO ACCORD APPROPRIATE RECOGNITION
TO THEIR EXCLUSIVE BARGAINING REPRESENTATIVE, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3202; BY REFUSING TO HONOR THE
EXISTING NEGOTIATED AGREEMENT WITH THAT LABOR ORGANIZATION; BY
WITHHOLDING FROM THAT LABOR ORGANIZATION UNION DUES DEDUCTED FROM UNIT
EMPLOYEES' PAY; AND BY FAILING TO PROVIDE THAT LABOR ORGANIZATION WITH
APPROPRIATE NOTICE OF ANY INTENTION TO WITHDRAW RECOGNITION FROM IT AND
AFFORDING IT AN OPPORTUNITY TO MEET AND CONFER WITH REGARD THERETO.
(D) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES REPRESENTED BY AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3202, IN THE EXERCISE OF RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE ORDER.
(A) UPON REQUEST, ACCORD APPROPRIATE RECOGNITION TO AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3202, FOR ITS
EMPLOYEES, INCLUDING MAINTENANCE EMPLOYEES REPORTING TO WORK AT THE FORT
SAM HOUSTON EXCHANGE, FORT SAM HOUSTON, TEXAS IN THE FOLLOWING CERTIFIED
UNIT:
ALL REGULAR FULL-TIME AND REGULAR PART-TIME HOURLY PAY PLAN AND
COMMISSION PAID CIVILIAN
EMPLOYEES; ALL OFF-DUTY MILITARY PERSONNEL EMPLOYED IN EITHER OF THE
FOREGOING CATEGORIES, AND
ALL TEMPORARY EMPLOYEES IN THE ABOVE CATEGORIES WHO ARE EMPLOYED
CONTINUOUSLY FOR A PERIOD OF
MORE THAN 180 DAYS, EMPLOYED BY THE FORT SAM HOUSTON EXCHANGE WHICH
INCLUDED CAMP BULLIS,
CANYON LAKE, PORT O'CONNOR, AND FORT SAM HOUSTON; EXCLUDING ALL
TEMPORARY FULL-TIME AND
TEMPORARY PART-TIME EMPLOYEES EMPLOYED IN A PERIOD OF 180 DAYS OR
LESS; ON CALL,
CASUAL; MANAGEMENT OFFICIALS; MANAGERIAL TRAINEES (WHO PERFORM
SUPERVISORY
DUTIES); PROFESSIONAL; PERSONNEL WORKERS IN OTHER THAN A PURELY
CLERICAL
CAPACITY; WATCHMEN; AND SUPERVISORS AND GUARDS AS DEFINED IN EO
11491.
(B) HONOR AND ENFORCE ALL TERMS OF THE EXISTING NEGOTIATED AGREEMENT
WITH AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3202.
(C) IMMEDIATELY REMIT TO AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3202, ALL MONIES DEDUCTED FROM UNIT EMPLOYEES AND
WITHHELD FROM AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 3202, WHICH THAT LABOR ORGANIZATION DID NOT RECEIVE FROM APRIL
1974, TOGETHER WITH INTEREST THEREON AT 6% PER ANNUM.
(D) COMMENCING WITH THE FIRST PAY PERIOD AFTER THE DATE OF THIS
RECOMMENDED ORDER DEDUCT REGULAR AND PERIODIC DUES FROM THE PAY OF
EMPLOYEES IN THE ABOVE UNIT, INCLUDING MAINTENANCE EMPLOYEES REPORTING
TO WORK AT THE FORT SAM HOUSTON EXCHANGE, WHO HAVE MADE AND MAY IN THE
FUTURE MAKE VOLUNTARY ALLOTMENTS FOR THAT PURPOSE, AND REMIT THE DUES TO
THE ABOVE-NAMED LABOR ORGANIZATION IN ACCORDANCE WITH THE PROVISIONS OF
THE EXISTING COLLECTIVE BARGAINING AGREEMENT.
(E) POST AT ITS FORT SAM HOUSTON EXCHANGE, FORT SAM HOUSTON, TEXAS,
FACILITY COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE
FURNISHED BY THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS.
UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDER AND
SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDER SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(F) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED: MARCH 13, 1975
WASHINGTON, D.C.
WE WILL NOT REFUSE TO ACCORD APPROPRIATE RECOGNITION TO AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3202, OR REFUSE TO
HONOR THE EXISTING NEGOTIATED AGREEMENT WITH AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3202, AS IT PERTAINS TO MAINTENANCE
EMPLOYEES AT THE FORT SAM HOUSTON EXCHANGE.
WE WILL NOT WITHDRAW RECOGNITION FROM AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3202, WITH REGARD TO ITS RIGHT TO
REPRESENT ALL EMPLOYEES EXCLUSIVELY REPRESENTED BY THAT LABOR
ORGANIZATION WITHOUT PROVIDING THAT LABOR ORGANIZATION WITH APPROPRIATE
NOTICE OF OUR INTENTION TO WITHDRAW RECOGNITION FROM THAT LABOR
ORGANIZATION AND AFFORD IT AN OPPORTUNITY TO MEET AND CONFER WITH REGARD
THERETO TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS.
WE WILL NOT INTERFERE WITH, RESTRAIN OR COERCE UNIT EMPLOYEES AT THE
FORT SAM HOUSTON EXCHANGE BY REFUSING TO ACCORD APPROPRIATE RECOGNITION
TO THEIR EXCLUSIVE BARGAINING REPRESENTATIVE, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3202; BY REFUSING TO HONOR THE
EXISTING NEGOTIATED AGREEMENT WITH THAT LABOR ORGANIZATION; BY
WITHHOLDING FROM THAT LABOR ORGANIZATION UNION DUES DEDUCTED FROM UNIT
EMPLOYEES' PAY; AND BY FAILING TO PROVIDE THAT LABOR ORGANIZATION WITH
APPROPRIATE NOTICE OF ANY INTENTION TO WITHDRAW RECOGNITION FROM IT AND
AFFORDING IT AN OPPORTUNITY TO MEET AND CONFER WITH REGARD THERETO.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES REPRESENTED BY AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3202, IN THE EXERCISE OF RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL UPON REQUEST, ACCORD APPROPRIATE RECOGNITION TO AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3202, AS THE
EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE FOR OUR EMPLOYEES,
INCLUDING MAINTENANCE EMPLOYEES REPORTING TO WORK AT FORT SAM HOUSTON
EXCHANGE, FORT SAM HOUSTON, TEXAS IN THE FOLLOWING CERTIFIED UNIT:
ALL REGULAR FULL-TIME AND REGULAR PART-TIME HOURLY PAY PLAN AND
COMMISSION PAID CIVILIAN
EMPLOYEES; ALL OFF-DUTY MILITARY PERSONNEL EMPLOYED IN EITHER OF THE
FOREGOING CATEGORIES, AND
ALL TEMPORARY EMPLOYEES IN THE ABOVE CATEGORIES WHO ARE EMPLOYED
CONTINUOUSLY FOR A PERIOD OF
MORE THAN 180 DAYS, EMPLOYED BY THE FORT SAM HOUSTON EXCHANGE WHICH
INCLUDES CAMP BULLIS,
CANYON LAKE, PORT O'CONNOR, AND FORT SAM HOUSTON; EXCLUDING ALL
TEMPORARY FULL-TIME AND
TEMPORARY PART-TIME EMPLOYEES EMPLOYED IN A PERIOD OF 180 DAYS OR
LESS; ON CALL,
CASUAL; MANAGEMENT OFFICIALS; MANAGERIAL TRAINEES (WHO PERFORM
SUPERVISORY
DUTIES); PROFESSIONALS; PERSONNEL WORKERS IN OTHER THAN A PURELY
CLERICAL
CAPACITY; WATCHMEN; AND SUPERVISORS AND GUARDS AS DEFINED IN EO
11491.
WE WILL HONOR AND ENFORCE ALL TERMS OF THE EXISTING NEGOTIATED
AGREEMENT WITH AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 3202.
WE WILL IMMEDIATELY REMIT TO AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3202, ALL MONIES DEDUCTED FROM UNIT EMPLOYEES
AND WITHHELD FROM AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 3202, WHICH THAT LABOR ORGANIZATION DID NOT RECEIVE FROM APRIL
1974, TOGETHER WITH INTEREST THEREON AT 6% PER ANNUM.
WE WILL HENCEFORTH DEDUCT REGULAR AND PERIODIC DUES FROM THE PAY OF
EMPLOYEES IN THE ABOVE UNIT, INCLUDING MAINTENANCE EMPLOYEES REPORTING
TO WORK AT THE FORT SAM HOUSTON EXCHANGE, WHO HAVE MADE AND MAY IN THE
FUTURE MAKE VOLUNTARY ALLOTMENTS FOR THAT PURPOSE, AND REMIT THE DUES TO
THE ABOVE-NAMED LABOR ORGANIZATION IN ACCORDANCE WITH THE PROVISIONS OF
THE EXISTING COLLECTIVE BARGAINING AGREEMENT.
DATED . . . BY . . .
THIS NOTICE MUST REMAIN POSTED FOR SIXTY (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 ASSISTANT
REGIONAL DIRECTOR OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION,
UNITED STATES DEPARTMENT OF LABOR WHOSE ADDRESS IS 911 WALNUT STREET,
ROOM 2200, KANSAS, MO., 64106.
/1/ AS OF APRIL 1974, THE UNIT ENCOMPASSED 300 TO 400 EMPLOYEES.
/2/ THE ALAMO EXCHANGE REGION IS ONE OF 5 EXCHANGE REGIONS IN THE
ARMY AND AIR FORCE EXCHANGE SERVICE (AAFES) WHICH REPORT TO AAFES
HEADQUARTERS LOCATED IN DALLAS, TEXAS. THE ALAMO EXCHANGE REGION
CONSISTS OF SIX AREA EXCHANGES INCLUDING THE SOUTH TEXAS AREA EXCHANGE.
/3/ STAE WAS ACTIVATED ON JULY 27, 1973, AND CONSISTED OF KELLY AFB
EXCHANGE, BROOKS AFB EXCHANGE, LAUGHLIN AFB EXCHANGE, LACKLAND AFB
EXCHANGE AND LAREDO AFB EXCHANGE.
/4/ THE TRANSCRIPT (TR. P. 91) INDICATES THAT THE DISTANCE FROM FORT
SAM TO LACKLAND AFB IS APPROXIMATELY 30 MILES. HOWEVER, MAP
MEASUREMENTS, OF WHICH I TAKE OFFICIAL NOTICE, REVEAL THAT THE DISTANCE
IS APPROXIMATELY 13 MILES.
/5/ AT THE TIME OF THE HEARING HEREIN NO REPRESENTATION PETITION HAD
BEEN FILED BY EITHER PARTY WITH REGARD TO THE MATTERS GIVING RISE TO THE
COMPLAINT.
/6/ THUS, THE FORT SAM EXCHANGE MAINTENANCE SUPERVISOR TESTIFIED,
WITHOUT CONTRADICTION, THAT BOTH BEFORE AND AFTER THE REORGANIZATION THE
MAINTENANCE EMPLOYEES STATIONED AT FORT SAM SPENT 55 PERCENT OF THEIR
TIME WORKING AT FORT SAM AND THE REMAINING 45 PERCENT OF THEIR TIME AT
OTHER LOCATIONS SUCH AS CAMP BULLIS, CANYON LAKE, RANDOLPH AFB, AND THE
ALAMO EXCHANGE REGIONAL OFFICE LOCATED AT FORT SAM.
/7/ OTHER UNIT EMPLOYEES AT THE FORT SAM EXCHANGE (FOOD SERVICE
WORKERS) WERE SIMILARLY REORGANIZED AND PLACED ADMINISTRATIVELY WITHIN
STAE JURISDICTION. HOWEVER, ACCORDING TO RESPONDENT'S PERSONNEL
MANAGER, SINCE THESE EMPLOYEES CONTINUED TO BE "ASSIGNED" TO THE FORT
SAM EXCHANGE AS CONTRASTED WITH THE MAINTENANCE EMPLOYEES WHO WERE
"ASSIGNED" TO STAE, THE ACTIVITY CONTINUED TO RECOGNIZE THE UNION AS THE
COLLECTIVE BARGAINING REPRESENTATIVE FOR FOOD SERVICE EMPLOYEES EVEN
THOUGH STAE PERFORMS THE "OVERHEAD" ADMINISTRATIVE FUNCTIONS FOR THAT
GROUP.
/8/ INDEED, PERSONNEL MANAGER WARREN ACKNOWLEDGED THAT OTHER FORT SAM
EXCHANGE UNIT EMPLOYEES COULD ALSO RECEIVE TEMPORARY DUTY ASSIGNMENTS TO
OTHER STAE LOCATIONS.
/9/ SEE DEFENSE SUPPLY AGENCY, DEFENSE PROPERTY DISPOSAL OFFICE,
ABERDEEN PROVING GROUND, ABERDEEN, MARYLAND, A/SLMR NO. 360; DEPARTMENT
OF THE ARMY, STRATEGIC COMMUNICATIONS COMMAND, FORT HUACHUCA, ARIZONA,
A/SLMR NO. 351; AND HEADQUARTERS, U.S. ARMY AVIATION SYSTEMS COMMAND,
ST. LOUIS, MISSOURI, A/SLMR NO. 106.
/10/ SEE DEFENSE SUPPLY AGENCY, ABERDEEN PROVING GROUND, SUPRA.
/11/ THE ACTIVITY ADMITS THAT IT FAILED TO GIVE THE UNION ADVANCE
NOTICE OF ITS INTENTION TO WITHDRAW RECOGNITION AND TERMINATE DUES
DEDUCTION. AN ACTIVITY OWES A DUTY TO AN EXCLUSIVE COLLECTIVE
BARGAINING REPRESENTATIVE TO DEAL FAIRLY AND OPENLY WITH IT AND PROVIDE
IT WITH AMPLE NOTICE AND AN OPPORTUNITY TO MEET AND CONFER WHEN IT
CONTEMPLATES TAKING AN ACTION WHICH GOES TO THE VERY HEART OF THE
UNION'S REPRESENTATIONAL STATUS. SEE FEDERAL RAILROAD ADMINISTRATION,
A/SLMR NO. 418.
/12/ PETITION FOR REVIEW ACCEPTED BY FEDERAL LABOR RELATIONS COUNCIL
ON MAY 3, 1974, FLRC NO. 74A-22 (CASE REPORT NO. 53)
/13/ INDEED SUCH WAS INHERENTLY RECOGNIZED BY THE ACTIVITY IN THAT IT
CONTINUED TO RECOGNIZE THE UNION AS THE COLLECTIVE BARGAINING
REPRESENTATIVE OF OTHER UNIT EMPLOYEES WHO REMAINED AT THE FORT SAM
LOCATION.
/14/ IN VIEW OF THE DISPOSITION HEREIN I FIND IT UNNECESSARY TO
ADDRESS THE UNION'S CONTENTION THAT AN ACTIVITY VIOLATES THE ORDER IF IT
WITHDRAWS RECOGNITION FROM A UNION WITHOUT FIRST FILING A REPRESENTATION
PETITION WITH THE ASSISTANT SECRETARY AND RECEIVING A FAVORABLE
DECISION.
/15/ ISIS PLUMBING AND HEATING CO., 138 NLRB 716; NLRB V. SHERIDAN
CREATIONS, 384 F.2D 696 (1967); CF. CREUTZ PLATING CORP., 172 NLRB 1;
AND PARAMOUNT PLASTIC FABRICATORS INC., 190 NLRB 170.
/16/ SECTION 6(B) OF THE ORDER PROVIDES:
"(B) IN ANY MATTERS ARISING UNDER PARAGRAPH (A) OF THIS SECTION, THE
ASSISTANT SECRETARY MAY REQUIRE AN AGENCY OR A LABOR ORGANIZATION TO
CEASE AND DESIST FROM VIOLATIONS OF THIS ORDER AND REQUIRE IT TO TAKE
SUCH AFFIRMATIVE ACTION AS HE CONSIDERS APPROPRIATE TO EFFECTUATE THE
POLICIES OF THIS ORDER."
5 A/SLMR 541; P. 509; CASE NO. 40-5760(CA); JULY 31, 1975.
FEDERAL ENERGY ADMINISTRATION,
REGION IV, ATLANTA, GEORGIA
A/SLMR NO. 541
THIS PROCEEDING INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT, FILED BY
THE NATIONAL TREASURY EMPLOYEES UNION, ALLEGING THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1) OF THE ORDER BY INTERFERING WITH, RESTRAINING
AND COERCING AN EMPLOYEE IN THE EXERCISE OF HIS UNION ACTIVITIES,
INCLUDING HIS CIRCULATING OF A REPRESENTATION PETITION AS WELL AS HIS
OBTAINING SIGNATURES TO SUPPORT SUCH PETITION. IT ALLEGED FURTHER THAT
CERTAIN STATEMENTS MADE TO THE EMPLOYEE BY A MANAGEMENT REPRESENTATIVE
WERE COERCIVE IN NATURE AND ALSO VIOLATIVE OF 19(A)(1).
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE RULE POSTED BY THE
RESPONDENT WHICH LIMITED EMPLOYEE SOLICITATION ON BEHALF OF A UNION TO
NONWORKING TIME AND IN NONWORKING AREAS WAS IMPROPER AS SUCH
SOLICITATION WAS PERMISSIBLE ON AGENCY PROPERTY PROVIDED IT OCCURS
DURING NONWORKING TIME. THE ADMINISTRATIVE JUDGE ALSO FOUND THAT A
STATEMENT MADE TO THE EMPLOYEE AT A MEETING OF JULY 30, 1974,
CONSTITUTED, IN EFFECT, AN UNWARRANTED LIMITATION OF THE EMPLOYEE'S
RIGHTS AND WAS INVALID AS IT REQUIRED THAT EMPLOYEE SOLICITATION NOT BE
CONDUCTED ON THE RESPONDENT'S PREMISES AT ANY TIME. ACCORDINGLY, THE
ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT'S CONDUCT
VIOLATED SECTION 19(A)(1) OF THE ORDER.
THE ADMINISTRATIVE LAW JUDGE ALSO FOUND THAT THE QUESTION ASKED OF
THE EMPLOYEE BY THE REGIONAL ADMINISTRATOR AND ANOTHER SUPERVISOR AT A
MEETING OF JULY 30, 1974, AS TO HOW MANY AND WHICH EMPLOYEES SIGNED THE
REPRESENTATION PETITION WAS IMPROPER INTERROGATION, AND AN UNWARRANTED
INTRUSION INTO THE UNION ACTIVITIES OF FELLOW EMPLOYEES, AND THEREFORE
VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE MATTER, THE ASSISTANT
SECRETARY ADOPTED THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS
AND RECOMMENDATION AND ISSUED AN APPROPRIATE REMEDIAL ORDER.
FEDERAL ENERGY ADMINISTRATION,
REGION IV, ATLANTA, GEORGIA
AND
NATIONAL TREASURY EMPLOYEES UNION
ON MAY 9, 1975, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK ISSUED HIS
REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT
THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES AND
RECOMMENDING THAT IT TAKE CERTAIN AFFIRMATIVE ACTIONS AS SET FORTH IN
THE ATTACHED ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATION AND
THE COMPLAINANT FILED A RESPONSE TO THE EXCEPTIONS AND SUPPORTING BRIEF.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE
EXCEPTIONS AND SUPPORTING BRIEF FILED BY THE COMPLAINANT, I HEREBY ADOPT
THE FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE ADMINISTRATIVE LAW
JUDGE.
I CONCUR WITH THE CONCLUSION OF THE ADMINISTRATIVE LAW JUDGE THAT THE
RESPONDENT'S INTERROGATION OF EMPLOYEE SKIP FREY ON JULY 30, 1974, /1/
CONCERNING THE NAMES AND NUMBER OF THOSE EMPLOYEES WHO HAD SIGNED THE
REPRESENTATION PETITION BEING CIRCULATED IN BEHALF OF THE COMPLAINANT,
CONSTITUTED IMPROPER INTERFERENCE WITH EMPLOYEE RIGHTS ASSURED BY THE
ORDER. FURTHER, I AGREE WITH THE ADMINISTRATIVE LAW JUDGE'S FINDING
THAT THE STATEMENTS MADE BY THE RESPONDENT'S REPRESENTATIVES AT THE JULY
30, 1974, MEETING CONCERNING LIMITATIONS ON WHERE FREY COULD SOLICIT
SIGNATURES FOR THE PETITION, AS WELL AS THE DOCUMENTARY EVIDENCE OF THE
RESPONDENT'S POLICY WITH RESPECT TO WHEN AND WHERE SOLICITATION ON
BEHALF OF A UNION WAS PERMISSIBLE, AS REFLECTED IN OPERATIONAL MEMO #58,
/2/ IMPROPERLY INTERFERED WITH EMPLOYEE RIGHTS ASSURED BY THE ORDER, IN
THAT BOTH THE ORAL AND WRITTEN STATEMENTS WOULD RESTRICT THE PLACES
WHERE EMPLOYEES COULD SOLICIT ON BEHALF OF A UNION DURING THEIR NONWORK
TIME. IN THIS REGARD, IT WAS HELD IN CHARLESTON NAVAL SHIPYARD, A/SLMR
NO. 1, THAT, IN THE ABSENCE OF ANY EVIDENCE OF SPECIAL CIRCUMSTANCES,
THE LIMITING OR BANNING OF EMPLOYEE SOLICITATION DURING NONWORK TIME
CONSTITUTED IMPROPER CONDUCT IN VIOLATION OF SECTION 19(A)(1) OF THE
ORDER. THUS, IN EFFECT, THE ASSISTANT SECRETARY HAS FOUND INVALID,
ABSENT UNUSUAL CIRCUMSTANCES, THE PROHIBITION BY AGENCY MANAGEMENT OF
EMPLOYEE SOLICITATION IN THEIR WORK AREA DURING NONWORK TIME.
BASED ON THE FOREGOING, THEREFORE, I FIND THAT THE RESPONDENT, BY ITS
INTERROGATION OF EMPLOYEE SKIP FREY ON JULY 30, 1975, BY ITS ORAL
EXPRESSION OF POLICY WITH RESPECT TO EMPLOYEE SOLICITATION ON THAT DATE,
AND BY ITS WRITTEN POLICY ON EMPLOYEE SOLICITATION AS EXPRESSED IN ITS
OPERATIONAL MEMO #58, IMPROPERLY INTERFERED WITH, RESTRAINED, OR COERCED
EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE EXECUTIVE ORDER AND,
THEREBY, VIOLATES SECTION 19(A)(1) OF THE ORDER.
PURSUANT TO SECTION 6(B) OF THE EXECUTIVE ORDER 11491, AS AMENDED,
AND SECTION 203.26(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE FEDERAL
ENERGY ADMINISTRATION, REGION IV, ATLANTA, GEORGIA, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERROGATING EMPLOYEES CONCERNING THEIR MEMBERSHIP IN, OR
ACTIVITIES ON BEHALF OF, THE NATIONAL TREASURY EMPLOYEES UNION, OR ANY
OTHER LABOR ORGANIZATION.
(B) PROMULGATING, MAINTAINING OR ENFORCING ANY DIRECTIVE, REGULATION
OR RULE WHICH PROHIBITS OR PREVENTS EMPLOYEES FROM SOLICITING ANY OTHER
EMPLOYEES AT THEIR WORKPLACE DURING NONWORK TIME ON BEHALF OF THE
NATIONAL TREASURY EMPLOYEES UNION, OR ANY OTHER LABOR ORGANIZATION,
PROVIDING THERE IS NO INTERFERENCE WITH THE WORK OF THE AGENCY.
(C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
EXECUTIVE ORDER.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED.
(A) POST AT ITS FACILITY AT THE FEDERAL ENERGY ADMINISTRATION,
ATLANTA, GEORGIA, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON
FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE
SIGNED BY THE REGIONAL ADMINISTRATOR OF THE FEDERAL ENERGY
ADMINISTRATION, REGION IV, ATLANTA, GEORGIA, 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 REGIONAL ADMINISTRATOR SHALL TAKE
REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
OR COVERED BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
JULY 31, 1975
/1/ ON PAGES 4, 5, 7 AND 10 OF HIS REPORT AND RECOMMENDATION THE
ADMINISTRATIVE LAW JUDGE INADVERTENTLY REFERRED TO THE DATE OF THE
MEETING BETWEEN MANAGEMENT AND EMPLOYEE FREY AS JUNE 20, 1974, INSTEAD
OF JULY 30, 1974. THESE INADVERTENT ERRORS ARE HEREBY CORRECTED.
/2/ OPERATIONAL MEMO #58 WAS PLACED IN EVIDENCE BY THE RESPONDENT FOR
THE PURPOSE OF SHOWING THAT THE PREVIOUS ORAL EXPRESSION OF ITS EMPLOYEE
SOLICITATION POLICY WAS "MOOT."
WE WILL NOT INTERROGATE OUR EMPLOYEES CONCERNING THEIR MEMBERSHIP IN,
OR ACTIVITIES ON BEHALF OF, THE NATIONAL TREASURY EMPLOYEES UNION, OR
ANY OTHER LABOR ORGANIZATION.
WE WILL NOT PROMULGATE, MAINTAIN OR ENFORCE ANY DIRECTIVE, REGULATION
OR RULE WHICH PROHIBITS OR PREVENTS OUR EMPLOYEES FROM SOLICITING ANY
OTHER EMPLOYEES AT THEIR WORKPLACE DURING NONWORK TIME ON BEHALF OF THE
NATIONAL TREASURY EMPLOYEES UNION, OR ANY OTHER LABOR ORGANIZATION,
PROVIDING THERE IS NO INTERFERENCE WITH THE WORK OF THE AGENCY.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR WHOSE ADDRESS IS: ROOM 300, 1371 PEACHTREE STREET, N.E., ATLANTA,
GEORGIA 30309.
IN THE MATTER OF
FEDERAL ENERGY ADMINISTRATION
REGION IV
AND
NATIONAL TREASURY EMPLOYEES UNION
GERALD J. RACHELSON
PROGRAM MANAGER, EMPLOYEE-LABOR RELATIONS
FEDERAL ENERGY ADMINISTRATION
ROOM 2409, FEDERAL BUILDING
12TH AND PENNSYLVANIA AVENUE, N.W.
WASHINGTON, D.C.
THOMAS N. LOFARO
NATIONAL FIELD REPRESENTATIVE
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W.
WASHINGTON, D.C. 20006
BEFORE: WILLIAM NAIMARK
PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON DECEMBER 19,
1974 BY THE ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES
ADMINISTRATION OF THE U.S. DEPARTMENT OF LABOR, ATLANTA REGION, A
HEARING IN THE ABOVE CAPTIONED CASE WAS HELD BEFORE THE UNDERSIGNED ON
FEBRUARY 11, 1975 AT ATLANTA, GEORGIA.
THE PROCEEDING HEREIN WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS
AMENDED, (HEREIN CALLED THE ORDER) BY THE FILING OF A COMPLAINT ON
OCTOBER 9, 1974 BY NATIONAL TREASURY EMPLOYEES UNION (HEREIN CALLED THE
RESPONDENT). IT WAS ALLEGED IN SAID COMPLAINT THAT RESPONDENT ON JULY
30, 1974 VIOLATED SECTION 19(A)(1) OF THE ORDER BY INTERFERING,
RESTRAINING AND COERCING EMPLOYEE SKIP FREY'S UNION ACTIVITIES,
INCLUDING HIS CIRCULATING A PETITION AS WELL AS HIS OBTAINING SIGNATURES
TO SAID PETITION FOR THE EXCLUSIVE RECOGNITION OF COMPLAINANT AS THE
EMPLOYEES' BARGAINING REPRESENTATIVE. FURTHER, IT WAS AVERRED THAT
CERTAIN STATEMENTS MADE TO FREY BY KENNETH L. DUPUY, A REGIONAL
ADMINISTRATOR FOR FEDERAL ENERGY ADMINISTRATION, ON THE AFORESAID DATE,
WERE COERCIVE IN NATURE AND ALSO VIOLATIVE OF 19(A)(1).
RESPONDENT FILED A MOTION TO DISMISS /2/ THE COMPLAINT IN WHICH IT
DENIED THE COMMISSION OF ANY UNFAIR LABOR PRACTICES. IT CONTENDED
THEREIN THAT ANY POSSIBLE VIOLATION WAS DE MINIMIS, AND THAT RESPONDENT
CURED ANY INFRACTIONS BY ISSUING SEVERAL MEMOS ADVISING EMPLOYEES OF
THEIR RIGHTS UNDER THE ORDER.
BOTH PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. THEREAFTER, THE PARTIES FILED BRIEFS WHICH
HAVE BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESS AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS:
1. AT ALL TIMES MATERIAL HEREIN ELIAS (SKIP) FREY WAS EMPLOYED AS A
FEDERAL ENERGY ADMINISTRATOR ATTACHED TO THE LOUISVILLE, KENTUCKY
OFFICE, AND DURING THE SUMMER OF 1974 FREY WAS ON DETAIL TO, AND WORKING
OUT OF, THE ATLANTA, GEORGIA OFFICE OF THE FEDERAL ENERGY
ADMINISTRATION.
2. DURING THE SUMMER OF 1974 COMPLAINANT CONDUCTED AN ORGANIZATIONAL
CAMPAIGN AMONG THE FEA EMPLOYEES AT ATLANTA, GEORGIA. /3/ IN CONNECTION
WITH COMPLAINANT'S EFFORTS TO REPRESENT THE EMPLOYEES, THOMAS LOFARO,
NATIONAL FIELD REPRESENTATIVE OF THE UNION, ASKED FREY, ON OR ABOUT JULY
25, 1974, TO CIRCULATE A PETITION /4/ DESIGNATING COMPLAINANT AS THEIR
EXCLUSIVE BARGAINING REPRESENTATIVE.
/3/ IN ACCORDANCE WITH LOFARO'S REQUEST, FREY CIRCULATED A PETITION
ON JULY 25, TO SELECT COMPLAINANT AS THE BARGAINING REPRESENTATIVE, AND
HE SOLICITED SIGNATURES FROM FELLOW EMPLOYEES AT WORK STATIONS DURING
WORKING HOURS, AT RESTAURANTS IN THE AREA, AND DURING LUNCH HOURS ON THE
RESPONDENT'S PROPERTY.
4. ON JULY 25, GUY STRONG, AN EMPLOYEE OF RESPONDENT, APPROACHED
FREY AND SAID HE HAD TOLD TEXAS ALLEN, DEPUTY REGIONAL ADMINISTRATOR,
THAT FREY HAD CIRCULATED A PETITION. STRONG REMARKED HE PROBABLY GOT
FREY IN TROUBLE BY INFORMING MANAGEMENT OF THE MATTER.
5. SEVERAL DAYS LATER, ON JULY 30, JIM ESTERDAY, ACTING DIRECTOR OF
COMPLIANCE AND ENFORCEMENT FOR RESPONDENT NOTIFIED FREY TO REPORT TO THE
OFFICE OF ALLEN. AFTER FREY REPORTED TO ALLEN'S OFFICE, ALL THREE MEN
WENT TO THE OFFICE OF KENNETH DUPUY, REGIONAL ADMINISTRATOR, WHERE A
MEETING WAS HELD WHICH LASTED ABOUT ONE-HALF HOUR.
6. IN RESPECT TO THE MEETING ON JUNE 30, FREY TESTIFIED IT OCCURRED
ABOUT 7:45 A.M. AND LASTED ABOUT 30 MINUTES. ACCORDING TO HIS VERSION,
FREY WAS ASKED IF HE KNEW WHY HE WAS THERE AND FREY REPLIED IT WAS
BECAUSE HE PASSED OUT A PETITION. WHEREUPON FREY, ATTEMPTING TO DEFEND
HIMSELF, STATED HE WAS FINISHED WITH THE PETITION, HAD SENT IT BACK
AFTER GETTING SIGNATURES AND HE HAD ONLY BEEN TO ONE UNION MEETING.
FREY FURTHER TESTIFIED DUPUY SAID THEY KNEW FREY WAS A UNION
ORGANIZER; THAT HE SHOULD HAVE COME TO MANAGEMENT FIRST AND TOLD THEM
HE WAS PASSING OUT A PETITION AND DUPUY WOULD HAVE MADE A ROOM AVAILABLE
ACROSS THE STREET OR SOMEWHERE ELSE; THAT FREY COULD HAVE HELD A
MEETING AND DONE WHAT FREY DID IF NOT ON GOVERNMENT PROPERTY OR WORKING
TIME. FURTHER TESTIMONY BY THIS EMPLOYEE REVEALS DUPUY SAID THAT DUE TO
THE CONFIDENTIAL NATURE OF THE WORK, THE INVESTIGATORS WEREN'T ELIGIBLE
FOR UNION MEMBERSHIP. MOREOVER, IF THEY HAD ANY PROBLEM /5/ DUPUY WOULD
TAKE CARE OF THEM; THAT FREY AND THE EMPLOYEES GET INTO SITUATIONS WITH
UNIONS AND THEY CREATE PROBLEMS. FINALLY, DUPUY ASKED FREY HOW MANY
SIGNATURES HE OBTAINED, TO WHICH HE REPLIED THAT 28 SIGNED. ALLEN THEN
ASKED WHO SIGNED, AND FREY ANSWERED HE DIDN'T KNOW THE INDIVIDUALS.
RESPONDENT'S VERSION OF THIS MEETING WAS PRESENTED BY ESTERDAY WHO
TESTIFIED THAT THE MEETING OCCURRED SUBSTANTIALLY AS FREY HAD RELATED.
HOWEVER, THEIR TESTIMONIES VARY IN SEVERAL RESPECTS. ACCORDING TO
ESTERDAY'S TESTIMONY FREY WAS ASKED WHEN AND WHERE HE DISTRIBUTED THE
PETITION; AND DUPUY TOLD THE EMPLOYEE HE COULDN'T DO SO AT WORK
STATIONS. THE REGIONAL ADMINISTRATOR OF RESPONDENT EXPRESSED CONCERN
THAT THIS ACTIVITY NOT BE DONE WHILE PEOPLE WERE AT WORK OR AT WORK
STATIONS, AND HE RAISED A DOUBT WHETHER IT COULD BE DONE ON GOVERNMENT
PROPERTY. ESTERDAY TESTIFIED DUPUY OFFERED TO ARRANGE FOR A MEETING
PLACE ACROSS THE STREET AT THE HYATT HOUSE, OR A CONFERENCE ROOM ON THE
5TH FLOOR, IF IT WERE PROPER TO CONDUCT THIS ACTIVITY ON THE PREMISES.
WHEN FREY TOLD DUPUY HOW HE BECAME INVOLVED, DUPUY ALLEGEDLY SAID THAT
THE EMPLOYEE DIDN'T NEED TO TELL HIM WHERE FREY STOOD OR WHY HE
CIRCULATED THE PETITION, THAT HE KNEW WHERE FREY STOOD.
FURTHER, ESTERDAY DID NOT RECALL THAT FREY WAS ASKED HOW MANY SIGNED
THE PETITION. HE REMEMBERED FREY BEING ASKED IF HE WERE AWARE THAT THEY
MUST SUBMIT TO THE ACTIVITY A LIST OF PEOPLE. /6/ WHILE HE WAS, IN
FACT, SOLICITED FOR THE UNITED FUND DURING WORKING HOURS, ESTERDAY AVERS
THAT MANAGEMENT DID NOT ALLOW ANY SOLICITATIONS ON GOVERNMENT TIME OR
PROPERTY.
BASED ON THE EXPLICITNESS AND DIRECTNESS OF HIS TESTIMONY, COUPLED
WITH ESTERDAY'S REMARK THAT THE COMMENTS AT THE MEETING WERE "PRETTY
MUCH" AS DESCRIBED BY FREY, I CREDIT THE LATTER'S VERSION OF THE
MEETING. /7/ ACCORDINGLY, I FIND, INTER ALIA, THAT AT THE MEETING ON
JUNE 30 MANAGEMENT'S REPRESENTATIVES TOLD FREY (A) HE SHOULD HAVE COME
TO THEM FIRST AND INFORMED THE EMPLOYER HE WAS PASSING OUT A PETITION,
SO THAT MANAGEMENT COULD PROVIDE A ROOM OR SPACE FOR HIM; (B) HE COULD
NOT CIRCULATE THE PETITION (ORGANIZATIONAL) DURING WORKING TIME OR ON
GOVERNMENT PROPERTY - THAT THEY DIDN'T CARE WHAT HE DID IF NOT ON
GOVERNMENT PROPERTY OR GOVERNMENT TIME. FURTHER, I FIND THAT
RESPONDENT'S REPRESENTATIVES ASKED FREY, AT THE MEETING, TO SUPPLY THE
NAMES OF THOSE WHO SIGNED THE PETITION AS WELL AS THE NUMBER OF THOSE
WHO SIGNED IT.
7. RESPONDENT PREPARED AND POSTED SEPARATE MEMORANDA ON JULY 23,
AUGUST 23, AND OCTOBER 7, RELATIVE TO THE RIGHTS OF EMPLOYEES DURING A
UNION ORGANIZATION CAMPAIGN. /8/ IN SUBSTANCE, THESE POSTINGS ADVISED
EMPLOYEES THAT TWO UNIONS WERE SEEKING TO REPRESENT THE FEA EMPLOYEES,
THAT THE LATTER HAD THE RIGHTS TO FORM, JOIN OR ASSIST A UNION FREELY
WITHOUT PENALTY OR REPRISAL, OR TO REFRAIN FROM SUCH ACTIVITY; THAT
"EMPLOYEES MAY ENGAGE IN UNION ACTIVITY, INCLUDING SOLICITATIONS AND
SIGNING OF PETITIONS, ONLY DURING NON-WORKING TIME, INCLUDING LUNCH AND
BREAK PERIODS, AND IN NON-WORKING AREAS." /9/ THAT ALL MANAGERIAL AND
SUPERVISORY PERSONNEL WERE ADMONISHED TO REMAIN NEUTRAL ON UNION ISSUES,
AND NOT TO QUESTION EMPLOYEES ON UNION MATTERS.
IN SEEKING A DISMISSAL OF THE COMPLAINT HEREIN, RESPONDENT MAKES
SEVERAL CONTENTIONS: (A) A WRITTEN OFFER OF SETTLEMENT WAS MADE BY
RESPONDENT, FOLLOWING THE FILING OF THE UNFAIR LABOR PRACTICE CHARGE,
WHICH THE UNION REFUSED TO ACCEPT. UNDER SECTION 203.7(A) OF THE
REGULATIONS THE COMPLAINT HEREIN SHOULD HAVE BEEN DISMISSED, BUT THE
ASSISTANT SECRETARY'S INTERNAL MANUAL PROHIBITED ACCEPTING AN OFFER OF
SETTLEMENT UNLESS EMBODIED IN THE SETTLEMENT AGREEMENT WITH AN
ACCOMPANYING NOTICE. HENCE, IT IS URGED THE REFUSAL TO DISMISS WAS
ARBITRARY AND CAPRICIOUS SINCE THE ASSISTANT SECRETARY ARBITRARILY
NULLIFIED ITS OWN REGULATIONS TO RESPONDENT'S DETRIMENT; (B) ASSUMING
ARGUENDO THAT INTERROGATION BY RESPONDENT OCCURRED, IT WAS OUTSIDE THE
SCOPE OF THE COMPLAINT; (C) NO VIOLATION OF 19(A)(1) EXISTS SINCE
MANAGEMENT MERELY ADVISED FREY HE COULDN'T SOLICIT DURING WORKING TIME -
WHICH IS WITHIN ITS RIGHTS UNDER THE ORDER - AND ANY INTERROGATION WAS
DESIGNED TO ASCERTAIN WHEN AND WHERE SOLICITATION OCCURRED. FURTHER,
RESPONDENT MAINTAINS IT HARBORED NO ANTI-UNION ANIMUS, AND WAS ONLY
DESIROUS OF ASSISTING FREY IN CONDUCTING HIS ACTIVITIES IN A PROPER
PLACE; AND THAT ANY REFERENCE TO THE EMPLOYEE'S UNION AFFILIATION WAS
FOR IDENTIFICATION PURPOSES AND NOT INTENDED TO BE DEROGATORY IN NATURE;
(D) ANY VIOLATION, IF IT OCCURRED, WAS DE MINIMIS; AND THE MEMOS
PUBLISHED BY MANAGEMENT, WHICH ADVISED EMPLOYEES OF THEIR RIGHTS UNDER
THE ORDER, CURED ANY CONDUCT WHICH MAY HAVE CONSTITUTED AN INFRINGEMENT
THEREOF.
RESPONDENT CONTENDS THAT THESE PROCEEDINGS ARE IMPROPERLY BROUGHT TO
HEARING. IT ARGUES THAT SINCE A SATISFACTORY WRITTEN OFFER OF
SETTLEMENT WAS MADE TO COMPLAINANT, THE COMPLAINT SHOULD HAVE BEEN
DISMISSED UNDER SECTION 203.7(A) OF THE ASSISTANT SECRETARY'S RULES AND
REGULATIONS. APART FROM THE FACT THAT THE APPLICABLE REGULATION IS
PERMISSIVE RATHER THAN MANDATORY IN RESPECT TO A DISMISSAL OF THE
COMPLAINT, I CONSIDER A DETERMINATION OF THIS ISSUE TO BE AN
ADMINISTRATIVE ONE. IT IS NEITHER MY FUNCTION TO PASS UPON THE MERITS
OR THE EFFECT OF AN OFFER OF SETTLEMENT, /10/ NOR TO SUBSTITUTE MY
JUDGMENT FOR THAT OF THE ASSISTANT REGIONAL DIRECTOR IN DETERMINING
WHETHER A PROFFERED SETTLEMENT WARRANTS DISMISSAL OF A COMPLAINT.
ACCORDINGLY, I REJECT THE EMPLOYER'S CONTENTION IN RESPECT TO THIS ISSUE
AND WILL DENY THE MOTION TO DISMISS ON THIS REGARD. /11/
THE EMPLOYER ASSERTS THAT IT DID NOT INTERFERE WITH THE RIGHTS OF
FREY, OR THE UNION, TO ENGAGE IN ORGANIZATIONAL ACTIVITIES. IN
CONFRONTING FREY ON JUNE 30, MANAGEMENT INSISTS IT WAS ONLY CONCERNED
WITH PREVENTING SOLICITATION BY HIM OF EMPLOYEES AT WORK, AND THAT SUCH
LIMITATION WAS PERMISSIBLE UNDER THE ORDER. SUCH A RESTRICTION WAS
ALLEGEDLY IN CONFORMANCE WITH THE EMPLOYER'S OPERATIONAL MEMO #58, DATED
AUGUST 23 WHICH WAS ADDRESSED TO ALL EMPLOYEES AND POSTED BY THE
ACTIVITY.
ALTHOUGH REFINED IN RECENT YEARS, THE PRINCIPLES IN RESPECT TO UNION
SOLICITATION BY EMPLOYEES HAVE BECOME WELL ENTRENCHED IN THE PRIVATE
SECTOR AS LAID DOWN BY THE NATIONAL LABOR RELATIONS BOARD. THUS,
EMPLOYEES HAVE THE RIGHT TO SOLICIT UNION MEMBERSHIP ON 'COMPANY'
PREMISES DURING THEIR NONWORKING TIME UNLESS UNUSUAL CIRCUMSTANCES
NECESSITATE SOME RESTRICTION OF THAT RIGHT TO MAINTAIN PRODUCTION AND
DISCIPLINE. REPUBLIC AVIATION CORP. V. NLRB 324 U.S. 793,
STODDARD-QUIRK MFG. CO. 138 NLRB 615. IN THIS REGARD, THE SUPREME COURT
ADOPTED THE VIEW OF THE BOARD THAT "WORKING TIME IS FOR WORK", THUS
ENTITLING AN EMPLOYER TO PROHIBIT SOLICITATION DURING WORKING TIME.
RECENT DECISIONAL LAW IN THE PRIVATE SECTOR ENUNCIATED THE DOCTRINE
THAT A RULE WHICH PROHIBITS SOLICITATION DURING "WORKING HOURS" IS
INVALID. A CLEAR DISTINCTION WAS DRAWN BETWEEN PROHIBITING SOLICITATION
DURING "WORKING TIME" AND "WORKING HOURS", IN THE LATTER TERM CONNOTING
A PERIOD OF TIME FROM "CLOCKING IN" UNTIL "CLOCKING OUT". A RULE
PROHIBITING SOLICITATION DURING "WORKING HOURS" WAS DEEMED INVALID AS
ENCOMPASSING HOURS OTHER THAN WORK TIME. ESSEX INTERNATIONAL, INC. 211
NLRB NO. 112. LIKEWISE, NO SOLICITATION RULES WHICH ARE ENFORCED TO
PRECLUDE EMPLOYEES FROM DISTRIBUTING UNION LITERATURE IN NON-WORKING
AREAS ARE INVALID. IN SUCH INSTANCES THE RULE IS TOO BROAD SINCE A
BALANCING OF INTERESTS REQUIRES THAT A LIMITED INTRUSION UPON AN
EMPLOYER'S PROPERTY RIGHT IS WARRANTED. PATIO FOODS 165 NLRB NO. 446.
SEE STODDARD-QUIRK MFG. CO., SUPRA.
APPLYING THESE PRINCIPLES TO THE CASE AT BAR, I AM PERSUADED THAT THE
NO-SOLICITATION RULE OF RESPONDENT, AS EXPRESSED AND PUBLISHED IN
OPERATIONAL MEMO #58, WAS AN ILLEGAL RULE. WHILE IT PROPERLY RESTRICTED
UNION SOLICITATION TO WORK TIME, THE PROHIBITION OF SUCH ACTIVITY AT
WORK AREAS IS TOO BROAD UNDER THE CITED CASES. DECISIONAL LAW IN THE
PRIVATE SECTOR RECOGNIZE THAT SUCH SOLICITATION MAY TAKE PLACE ON
COMPANY PROPERTY PROVIDED IT OCCURS DURING NON-WORKING TIME.
MOREOVER, IN THE APPLICATION OF RESPONDENT'S NON-SOLICITATION RULE -
AS EVIDENCED IN THE MEETING ON JUNE 30 - THE STATEMENTS BY MANAGEMENT TO
FREY WERE AN INFRINGEMENT UPON EMPLOYEES' RIGHTS TO ENGAGE IN UNION
SOLICITATION. IT HAS BEEN HERETOFORE FOUND THAT DUPUY TOLD FREY HE
DIDN'T CARE WHAT THE LATTER DID IF NOT DONE ON GOVERNMENT PROPERTY ON
WORKING TIME. THE LIMITATION IMPOSED BY DUPUY UPON FREY'S SOLICITATION
WAS CLEARLY INVALID SINCE IT REQUIRED THAT SUCH ACTIVITY NOT BE
CONDUCTED ON THE EMPLOYER'S PREMISES. HOWEVER, THE PROHIBITION WITH
RESPECT TO SOLICITATION BY EMPLOYEES MUST BE CONFINED TO OUTLAWING SUCH
ACTIONS ONLY DURING WORKING TIME.
PROHIBITING THIS ACTIVITY IN NON-WORKING AREAS FLOUTS THE RIGHTS
ACCORDED EMPLOYEES AS SET FORTH IN PRIVATE SECTOR CASES, AND I SEE NO
REASON WHY A DIFFERENT RULE SHOULD APPLY IN THE PUBLIC SECTOR WITH
REGARD THERETO. SUPPORT FOR THIS VIEW IS SEEN IN CHARLESTON NAVAL
SHIPYARD, A/SLMR NO. 1 WHERE THE PROMULGATION AND MAINTENANCE OF A RULE
WHICH PROHIBITED EMPLOYEES FROM SOLICITING ON BEHALF OF A UNION DURING
NON-WORKING TIME, OR DISTRIBUTING LITERATURE IN NON-WORK AREAS DURING
NON-WORK TIME, WAS HELD VIOLATIVE OF 19(A)(1) OF THE ORDER.
ACCORDINGLY, I CONCLUDE RESPONDENT, BY ORALLY ADVISING FREY THAT HE
COULD NOT OBTAIN SIGNATURES ON THE UNION ORGANIZATIONAL PETITION ON
GOVERNMENT PROPERTY, INTERFERED WITH EMPLOYEES' RIGHTS UNDER THE ORDER.
SUCH INTERFERENCE CONSTITUTES A VIOLATION OF SECTION 19(A)(1) THEREOF.
/12/
RECENT DECISION BY THE ASSISTANT SECRETARY HAVE ADOPTED THE DOCTRINE
- NOW WELL ESTABLISHED IN THE PRIVATE SECTOR - THAT INTERROGATION BY AN
EMPLOYER OF AN EMPLOYEE RE HIS UNION ACTIVITIES CONSTITUTES INTERFERENCE
WITH RIGHTS GUARANTEED EMPLOYEES TO JOIN AND ASSIST LABOR ORGANIZATIONS.
OFFICE OF ECONOMIC OPPORTUNITY, REGION V, CHICAGO, ILLINOIS, A/SLMR NO.
477; VANDENBERG AIR FORCE BASE, CALIFORNIA, A/SLMR NO. 383.
QUESTIONS POSED OF FREY BY MANAGEMENT'S REPRESENTATIVES DUPUY AND
ALLEN AS TO HOW MANY, AND WHICH, EMPLOYEES SIGNED THE PETITION, FALL
WITHIN THE FRAMEWORK OF PROHIBITIVE INQUIRIES. SUCH INTERROGATION,
DESIGNED TO ELICIT INFORMATION CONCERNING THE INDIVIDUAL WHO DESIGNATED
THE COMPLAINANT AS THEIR BARGAINING REPRESENTATIVE, IS AN UNWARRANTED
INTRUSION INTO THE UNION ACTIVITIES OF FELLOW EMPLOYEES. CONDUCTED AT A
TIME WHEN SOLICITATION WAS ILLEGALLY RESTRICTED, IT MUST NECESSARILY
HAVE A RESTRAINING AND COERCIVE EFFECT UPON AN EMPLOYEE. FURTHER, A
UNION AND ITS AGENTS SHOULD BE ABLE TO CONDUCT AN ORGANIZATIONAL
CAMPAIGN UNDISTURBED BY QUERIES REGARDING THOSE INDIVIDUALS WHO HAVE
AFFILIATED WITH IT. INQUIRIES OF THIS NATURE, AS MADE BY RESPONDENT'S
OFFICIALS, CONSTITUTE A DIRECT INTERFERENCE WITH RIGHTS ASSURED UNDER
THE ORDER AND ARE VIOLATIVE OF SECTION 19(A)(1) THEREOF. /13/
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT WHICH IS IN
VIOLATION OF SECTION 19(A)(1) OF THE ORDER, I RECOMMEND THAT THE
ASSISTANT SECRETARY ADOPT THE FOLLOWING ORDER DESIGNED TO EFFECTUATE THE
PURPOSES OF EXECUTIVE ORDER 11491, AS AMENDED.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE FEDERAL ENERGY
ADMINISTRATION, REGION IV, SHALL:
1. CEASE AND DESIST FROM
(A) INTERROGATING AS TO THE MEMBERSHIP IN, OR ACTIVITIES ON BEHALF OF
THE NATIONAL TREASURY EMPLOYEES UNION, OR ANY OTHER LABOR ORGANIZATION,
OF ANY OF ITS EMPLOYEES.
(B) PROMULGATING, MAINTAINING OR ENFORCING ANY DIRECTIVE, REGULATION
OR RULE WHICH PROHIBITS OR PREVENTS ANY OF ITS EMPLOYEES FROM ORALLY
SOLICITING ON ITS PREMISES ANY OTHER EMPLOYEES ON BEHALF OF NATIONAL
TREASURY EMPLOYEES UNION, OR ANY OTHER LABOR ORGANIZATION, AND/OR FROM
OBTAINING SIGNATURES ON ITS PREMISES OF THE EMPLOYEES ON UNION
AUTHORIZATION CARDS OR PETITIONS ON BEHALF OF NATIONAL TREASURY
EMPLOYEES UNION, OR ANY OTHER LABOR ORGANIZATION, DURING NON-WORKING
TIME.
(C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) POST AT ITS FACILITY AT THE FEDERAL ENERGY ADMINISTRATION,
ATLANTA, GEORGIA, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON
FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE
SIGNED BY THE REGIONAL ADMINISTRATOR 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 REGIONAL ADMINISTRATOR SHALL TAKE
REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
OR COVERED BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED: MAY 9, 1975
WASHINGTON, D.C.
WE WILL NOT INTERROGATE AS TO THE MEMBERSHIP IN, OR ACTIVITIES ON
BEHALF OF, THE NATIONAL TREASURY EMPLOYEES UNION, OR ANY OTHER LABOR
ORGANIZATION, OF ANY OF OUR EMPLOYEES.
WE WILL NOT INTERROGATE AS TO THE MEMBERSHIP IN, OR ACTIVITIES ON
BEHALF OF, THE NATIONAL TREASURY EMPLOYEES UNION, OR ANY OTHER LABOR
ORGANIZATION, OF ANY OF OUR EMPLOYEES.
WE WILL NOT ESTABLISH, MAINTAIN OR APPLY ANY DIRECTIVE, RULE, OR
REGULATION WHICH PROHIBITS OR PREVENTS ANY EMPLOYEE FROM ORALLY
SOLICITING ON ITS PREMISES ANY OTHER EMPLOYEES AND/OR OBTAINING
SIGNATURES ON ITS PREMISES OF OTHER EMPLOYEES ON UNION AUTHORIZATION
CARDS OR PETITIONS, ON BEHALF OF THE NATIONAL TREASURY UNION OR ANY
OTHER LABOR ORGANIZATIONS, DURING NON-WORKING TIME.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
DATED: . . . BY . . . (SIGNATURE) (TITLE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, WHOSE
ADDRESS IS ROOM 300, 1371 PEACHTREE STREET, N.E., ATLANTA, GEORGIA
30309.
/1/ THE CORRECT NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE
HEARING.
/2/ THIS MOTION WAS DENIED BY THE ASSISTANT REGIONAL DIRECTOR ON
DECEMBER 19, 1974.
/3/ COMPLAINANT HAD NOT BEEN PREVIOUSLY DESIGNATED OR CERTIFIED AS
THE EXCLUSIVE REPRESENTATIVE OF RESPONDENT'S EMPLOYEES.
/4/ ALL DATES HEREINAFTER MENTIONED ARE IN 1974 UNLESS OTHERWISE
INDICATED.
/5/ FREY SUGGESTED THIS WAS REFERABLE TO FINANCIAL PROBLEMS, SINCE
THEY WERE HAVING TROUBLES WITH FINANCES AT THE TIME.
/6/ THIS IS APPARENTLY REFERABLE TO A SHOWING OF INTEREST ACQUIRED BY
A UNION WHEN FILING A PETITION.
/7/ SEVERAL OTHER STATEMENTS, WHICH FREY TESTIFIED WERE MADE BY
DUPUY, REMAIN UNDENIED.
/8/ RESPONDENT'S EXHIBITS 3, 4, AND 5.
/9/ OPERATIONAL MEMO #58, DATED AUGUST 23. (RESPONDENT'S EXHIBIT 5)
/10/ SEE U.S. DEPT. OF AIR FORCE, NORTON AIR FORCE BASE, A/SLMR NO.
261.
/11/ IN VIEW OF MY CONCLUSIONS IN RESPECT TO THE REMAINING ISSUES, AS
HEREINAFTER SET FORTH, RESPONDENT'S MOTION TO DISMISS THE COMPLAINT FOR
(A) LACK OF MERIT, (B) NOT EMBRACING THE EVIDENCE ADDUCED, AND (C)
MOOTNESS, IS ALSO DENIED.
/12/ RESPONDENT URGES THAT, IF A VIOLATION OCCURRED, A REMEDY IS
INAPPROPRIATE IN VIEW OF THE MEMOS PUBLISHED BY ITS AFFIRMING EMPLOYEES'
RIGHTS. THIS ARGUMENT IS REJECTED SINCE RESPONDENT'S CONDUCT, ARISING
DURING UNION ORGANIZATION, CONSTITUTED MORE THAN A "TECHNICAL"
VIOLATION. SEE VANDENBERG AIR FORCE BASE, 439 2D AEROSPACE, A/SLMR NO.
435.
/13/ COMPLAINANT INSISTS THAT DUPUY'S STATEMENTS THAT (A) FREY SHOULD
HAVE COME TO HIM BEFORE PASSING OUT A PETITION; (B) UNIONS CREATE
PROBLEMS AND MANAGEMENT COULD TAKE CARE OF PROBLEMS ARISING, WERE ALSO
VIOLATIVE OF THE ORDER. IN REGARD TO (A) DUPUY WAS BESPEAKING OF
ARRANGING A PLACE FOR THE UNION TO SOLICIT, AND AS TO (B), FREY CONCEDES
THIS REMARK PERTAINED TO FINANCIAL DIFFICULTIES. WHILE SUCH COMMENTS
MIGHT SUGGEST EMPLOYEES SHOULD DEAL WITH RESPONDENT IN RESPECT TO
PARTICULAR MATTERS, I AM PERSUADED THAT MANAGEMENT SOUGHT THEREBY TO
THWART UNION REPRESENTATION. I CONCLUDE THESE REMARKS, IN THE CONTEXT
STATED DURING THE MEETING OF JUNE 30, DID NOT CONSTITUTE INTERFERENCE,
RESTRAINT OR COERCION AND WERE NOT VIOLATIVE OF THE ORDER.
5 A/SLMR 540; P. 502; CASE NO. 63-5064(CA); JULY 30, 1975.
SAN ANTONIO AIR LOGISTICS CENTER,
SAN ANTONIO AIR MATERIEL AREA (AFLC),
KELLY AIR FORCE BASE, TEXAS
A/SLMR NO. 540
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL UNION 1617, AFL-CIO,
(AFGE) ALLEGING THAT THE SAN ANTONIO AIR LOGISTICS CENTER, SAN ANTONIO
AIR MATERIEL AREA (AFLC), KELLY AIR FORCE BASE, TEXAS (RESPONDENT),
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY VIRTUE OF ITS ACTIONS
IN UNILATERALLY CHANGING, WITHOUT NOTICE TO THE AFGE, A PRACTICE AND/OR
CONDITION OF EMPLOYMENT, I.E., THE UTILIZATION OF OFFICIAL TIME BY
EMPLOYEE REPRESENTATIVES.
THE PARTIES WERE INVOLVED IN NEGOTIATIONS FOR AN AGREEMENT WITH
RESPECT TO A UNIT OF GENERAL SCHEDULE (GS) EMPLOYEES REPRESENTED
EXCLUSIVELY BY THE AFGE. THE RECORD REFLECTS THAT THE COMPLAINANT'S
PRESIDENT WAS SHOWN, DURING THE COURSE OF A MEETING ON APRIL 3, 1975,
WITH MANAGEMENT REPRESENTATIVES, A COPY OF AN UNDATED LETTER (APPARENTLY
A DRAFT OF THE LETTER ISSUED APRIL 4, 1974) AND HIS COMMENTS WERE
REQUESTED. UPON LEARNING THAT THIS WAS NOT HIS PERSONAL COPY, HE
WITHHELD COMMENT UNTIL SUCH TIME AS HE COULD OBTAIN A COPY AND COULD
STUDY ITS CONTENTS. HE WAS ASSURED THAT HE WOULD RECEIVE A COPY AND THE
MEETING ENDED. ON APRIL 4, 1974, THE RESPONDENT SENT A LETTER TO ITS
SUPERVISORS, WHICH WAS SHOWN TO THE AFGE PRESIDENT BY ANOTHER EMPLOYEE'S
SUPERVISOR, IN WHICH IT WAS STATED THAT OFFICIAL TIME FOR EMPLOYEE
REPRESENTATIVES COULD NOT BE GRANTED FOR MORE THAN EIGHT HOURS PER PAY
PERIOD WITHOUT PERMISSION BEING OBTAINED FROM THE BRANCH CHIEF, OR
HIGHER AUTHORITY. PRIOR TO APRIL 4, 1974, EMPLOYEES' IMMEDIATE
SUPERVISORS GRANTED OFFICIAL TIME WHICH, THE RECORD REFLECTED, HAD BEEN
GENERALLY UNLIMITED.
THE ASSISTANT SECRETARY AGREED WITH THE ADMINISTRATIVE LAW JUDGE THAT
IT IS WELL ESTABLISHED THAT IF THE PARTIES REACH AN IMPASSE FOLLOWING
GOOD FAITH NEGOTIATIONS, AN EMPLOYER MAY UNILATERALLY IMPOSE CHANGES IN
WORKING CONDITIONS WHICH DO NOT EXCEED THE OFFERS OR PROPOSALS MADE IN
THE PRIOR NEGOTIATIONS. IN THE INSTANT CASE, HOWEVER, THE ASSISTANT
SECRETARY FOUND THAT THE PARTIES HAD NOT REACHED AN IMPASSE ON A
NEGOTIABLE ISSUE AND THAT THE RESPONDENT'S UNILATERAL CHANGE IN A TERM
AND CONDITION OF EMPLOYMENT WAS VIOLATIVE OF SECTION 19(A)(1) AND (6) OF
THE ORDER.
ACCORDINGLY, THE ASSISTANT SECRETARY ADOPTED THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, AND ISSUED AN
APPROPRIATE REMEDIAL ORDER.
SAN ANTONIO AIR LOGISTICS CENTER,
SAN ANTONIO AIR MATERIEL AREA (AFLC),
KELLY AIR FORCE BASE, TEXAS
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL UNION 1617, AFL-CIO
ON APRIL 22, 1975, ADMINISTRATIVE LAW JUDGE BURTON S. STERNBURG
ISSUED HIS REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR LABOR
PRACTICES AND RECOMMENDING THAT IT TAKE CERTAIN AFFIRMATIVE ACTION AS
SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS. THEREAFTER, THE RESPONDENT FILED EXCEPTIONS AND A
SUPPORTING BRIEF WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S REPORT
AND RECOMMENDATIONS.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
RESPONDENT'S EXCEPTIONS AND SUPPORTING BRIEF, I HEREBY ADOPT THE
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW
JUDGE. THUS, UNDER THE CIRCUMSTANCES HEREIN, I FIND THAT NO IMPASSE HAD
BEEN REACHED BY THE PARTIES ON A NEGOTIABLE ISSUE IN THE COURSE OF THEIR
BARGAINING FOR A NEGOTIATED AGREEMENT, AND THAT, THEREFORE, THE
RESPONDENT'S UNILATERAL CHANGE OF A TERM AND CONDITION OF EMPLOYMENT WAS
VIOLATIVE OF SECTION 19(A)(1) AND (6) OF THE ORDER.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE SAN ANTONIO AIR
LOGISTICS CENTER, SAN ANTONIO AIR MATERIEL AREA (AFLC), KELLY AIR FORCE
BASE, TEXAS, SHALL:
1. CEASE AND DESIST FROM:
(A) CHANGING THE POLICY OR REGULATIONS GOVERNING USE OF OFFICIAL
WORKING TIME BY EMPLOYEE REPRESENTATIVES, OR ANY OTHER CONDITION OF
EMPLOYMENT WHICH IS THE SUBJECT OF COLLECTIVE BARGAINING NEGOTIATIONS
DURING THE COURSE OF SUCH NEGOTIATIONS, UNLESS AN IMPASSE HAS BEEN
REACHED IN SUCH NEGOTIATIONS AND APPROPRIATE NOTICE OF ANY PROPOSED
CHANGE IS GIVEN TO THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL UNION 1617, AFL-CIO, OR ANY OTHER EXCLUSIVE REPRESENTATIVE.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) REVOKE ANY UNILATERALLY ESTABLISHED CHANGE IN POLICY OR
REGULATIONS GOVERNING USE OF OFFICIAL WORKING TIME BY EMPLOYEE
REPRESENTATIVES WHICH IS THE SUBJECT OF COLLECTIVE BARGAINING
NEGOTIATIONS UNLESS AN IMPASSE HAS BEEN REACHED IN SUCH NEGOTIATIONS AND
APPROPRIATE NOTICE OF ANY PROPOSED CHANGE IS GIVEN TO THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL UNION 1617, AFL-CIO, OR ANY
OTHER EXCLUSIVE REPRESENTATIVE.
(B) POST AT ITS FACILITY AT KELLY AIR FORCE BASE, TEXAS, COPIES OF
THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS. UPON
RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDING OFFICER,
SAN ANTONIO AIR LOGISTICS CENTER, SAN ANTONIO AIR MATERIEL AREA (AFLC),
KELLY AIR FORCE BASE, TEXAS, 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.
(C) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
JULY 30, 1975
WE WILL NOT CHANGE THE POLICY OR REGULATIONS GOVERNING USE OF
OFFICIAL WORKING TIME BY EMPLOYEE REPRESENTATIVES, OR ANY OTHER
CONDITION OF EMPLOYMENT WHICH IS THE SUBJECT OF COLLECTIVE BARGAINING
NEGOTIATIONS DURING THE COURSE OF SUCH NEGOTIATIONS, UNLESS AN IMPASSE
HAS BEEN REACHED IN SUCH NEGOTIATIONS AND APPROPRIATE NOTICE OF ANY
PROPOSED CHANGE IS GIVEN TO THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL UNION 1617, AFL-CIO, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL REVOKE AN UNILATERALLY ESTABLISHED CHANGE IN POLICY OR
REGULATIONS GOVERNING USE OF OFFICIAL WORKING TIME BY EMPLOYEE
REPRESENTATIVES WHICH IS THE SUBJECT OF COLLECTIVE BARGAINING
NEGOTIATIONS UNLESS AN IMPASSE HAS BEEN REACHED IN SUCH NEGOTIATIONS AND
APPROPRIATE NOTICE OF ANY PROPOSED CHANGE IS GIVEN TO THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL UNION 1617, AFL-CIO, OR ANY
OTHER EXCLUSIVE REPRESENTATIVE.
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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR, WHOSE ADDRESS IS: 2200 FEDERAL OFFICE BUILDING, 911 WALNUT
STREET, KANSAS CITY, MISSOURI 64106.
IN THE MATTER OF
SAN ANTONIO AIR LOGISTICS CENTER
SAN ANTONIO AIR MATERIEL AREA (AFLC)
KELLY AIR FORCE BASE, TEXAS
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL UNION 1617, AFL-CIO
MAJOR JOHN T. DORMAN
SAN ANTONIO AIR LOGISTICS CENTER
KELLY AIR FORCE BASE, TEXAS 78241
MR. GLEN J. PETERSON
NATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL UNION 1617, AFL-CIO
POST OFFICE BOX BB
BOERNE, TEXAS 78006
BEFORE: BURTON S. STERNBURG
PURSUANT TO A COMPLAINT FILED ON AUGUST 9, 1974, UNDER EXECUTIVE
ORDER 11491, AS AMENDED, BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1617, AFL-CIO, (HEREINAFTER CALLED THE UNION OR COMPLAINANT)
AGAINST THE SAN ANTONIO AIR LOGISTICS CENTER, SAN ANTONIO AIR MATERIEL
AREA (AFLC), KELLY AIR FORCE BASE, TEXAS, (HEREINAFTER CALLED THE AGENCY
OR RESPONDENT), A NOTICE OF HEARING ON COMPLAINT WAS ISSUED BY THE
REGIONAL DIRECTOR FOR THE KANSAS CITY, MISSOURI, REGION ON DECEMBER 12,
1974.
THE COMPLAINT ALLEGES, IN SUBSTANCE, THAT THE AGENCY VIOLATED
SECTIONS 19(A)(1) AND (6) OF THE EXECUTIVE ORDER BY VIRTUE OF ITS
ACTIONS IN UNILATERALLY CHANGING A PRACTICE AND/OR CONDITION OF
EMPLOYMENT WITH RESPECT TO THE UTILIZATION OF OFFICIAL TIME FOR
PROCESSING GRIEVANCES.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON FEBRUARY 25, 1975, IN
SAN ANTONIO, TEXAS. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES INVOLVED HEREIN.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATIONS:
THE UNION IS THE EXCLUSIVE BARGAINING REPRESENTATIVE IN FOUR SEPARATE
BARGAINING UNITS AT KELLY AIR FORCE BASE. ON THE DATE INVOLVED HEREIN
(APRIL 4, 1974), THE UNION AND THE RESPONDENT WERE ENGAGED IN SEPARATE
NEGOTIATIONS FOR CONTRACTS COVERING TWO OF THE UNITS, THE GS UNIT AND
THE POLICE UNIT. SUBSEQUENT TO APRIL 4, 1974, THE PARTIES REACHED
AGREEMENT ON A CONTRACT FOR THE POLICE UNIT. NO COLLECTIVE BARGAINING
AGREEMENT, HOWEVER, WAS REACHED, AS OF THE DATE OF THE HEARING, COVERING
THE GENERAL SCHEDULE EMPLOYEES COMPRISING THE GS UNIT, THE UNIT INVOLVED
IN THE INSTANT COMPLAINT. ALTHOUGH A NUMBER OF PROPOSED CONTRACTUAL
PROVISIONS FOR THE GS UNIT HAD BEEN UNSUCCESSFULLY DISCUSSED PRIOR TO
APRIL 4, 1974, MANY OTHER SUCH SUBJECTS OR PROVISIONS, DUE TO LACK OF
SUFFICIENT NEGOTIATING TIME, HAD YET TO BE REACHED IN THE NEGOTIATIONS.
ACCORDINGLY, AS OF APRIL 4, 1974, NO IMPASSE EXISTED WITH RESPECT TO THE
COMPLETE CONTRACT NEGOTIATIONS AND/OR RESPECTIVE PROPOSALS FOR THE GS
UNIT.
AMONG THE PROPOSALS DISCUSSED PRIOR TO APRIL 4, 1974, WITHOUT
AGREEMENT HAVING BEEN REACHED THEREON, WERE THOSE OF THE RESPONDENT
CONCERNING LIMITATIONS ON THE ACTIVITIES OF BOTH UNIT EMPLOYEES AND
STEWARDS IN THE AREA OF GRIEVANCE REPRESENTATION. THUS, THE RESPONDENT,
BEING CONCERNED OVER THE UNLIMITED OFFICIAL WORKING HOURS BEING UTILIZED
BY VARIOUS EMPLOYEES IN REPRESENTING OTHER EMPLOYEES IN THE AREA OF
GRIEVANCES OR COMPLAINTS, ATTEMPTED, AND/OR PROPOSED, TO PUT SOME SORT
OF RESTRICTION ON THE AMOUNT OF OFFICIAL TIME ALLOTTED FOR THE
PROCESSING OR PRESENTATION OF GRIEVANCES. RESPONDENT'S PROPOSALS, WHICH
WERE STATED IN PERCENTAGES, RAN FROM FOUR TO EIGHT HOURS PER
REPRESENTATIVE PER TWO WEEK PAY PERIOD. THE UNION, ON THE OTHER HAND,
DECLINED TO INCORPORATE ANY SUCH RESTRICTION, OPTING INSTEAD FOR
"REASONABLE TIME" IN ACCORDANCE WITH THE PROVISIONS OF A.F. REGULATION
40-771, GENERALLY APPLICABLE TO ALL AIR FORCE INSTALLATIONS, INCLUDING
KELLY AIR FORCE BASE.
PRIOR TO APRIL 4, 1974, GS UNIT EMPLOYEES WERE GENERALLY ALLOWED
UNLIMITED REPRESENTATION TIME WITH RESPECT TO THE HANDLING OR PROCESSING
OF GRIEVANCES AND/OR COMPLAINTS. THUS, ACCORDING TO THE RECORD, THE
EMPLOYEE DESIGNATED AS THE REPRESENTATIVE MERELY APPROACHED HIS
IMMEDIATE SUPERVISOR, STATED THE GRIEVANCE OR COMPLAINT INVOLVED, AND
WAS THEN CUSTOMARILY GRANTED AN ADMINISTRATIVE PERMIT ALLOWING HIM TO
PERFORM THE APPROPRIATE REPRESENTATION ACTIVITIES ON OFFICIAL TIME
WITHIN RESTRICTION. THE AFOREMENTIONED EASE IN OBTAINING THE
ADMINISTRATIVE PERMITS RESULTED IN SOME INDIVIDUAL EMPLOYEES SPENDING A
GREAT DEAL OF THEIR OFFICIAL WORKING TIME ON GRIEVANCES, SINCE, BY
VIRTUE OF THEIR DEMONSTRATED EXPERTISE OR SUCCESS, THEY WERE CONTINUALLY
BEING SELECTED BY THEIR FELLOW EMPLOYEES AS THEIR RESPECTIVE
REPRESENTATIVES. THE RECORD FURTHER REVEALS THAT PRIOR TO APRIL 4,
1974, THE RESPONDENT WAS SUCCESSFUL IN ITS ATTEMPT TO RESTRICT THE HOURS
SPENT PER EMPLOYEE ON "REPRESENTATION" IN THE NURSES AND WAGE GRADE
UNITS BY INCORPORATING TIME LIMITATIONS ON SUCH ACTIVITIES IN THE
COLLECTIVE BARGAINING CONTRACTS COVERING SUCH UNITS. SUBSEQUENT TO
APRIL 4, 1974, AS NOTED ABOVE, THE RESPONDENT REACHED AGREEMENT WITH THE
UNION ON A CONTRACT COVERING THE POLICE UNIT WHICH CONTAINED SIMILAR
"REPRESENTATION" RESTRICTIONS.
ON APRIL 3, 1974, ROBERT VACHON, PRESIDENT OF LOCAL 1617, MET IN THE
CIVILIAN PERSONNEL OFFICE WITH COLONEL STEVENS, DIRECTOR OF PERSONNEL,
AND CHARLES ROBERTS, CIVILIAN PERSONNEL OFFICER. DURING THE COURSE OF
DISCUSSION ON ANOTHER UNRELATED MATTER, COLONEL STEVENS HANDED MR.
VACHON A TISSUE COPY OF AN UNDATED LETTER AND SOLICITED MR. VACHON'S
COMMENTS THEREON. MR. VACHON STARTED TO READ THE LETTER AND THEN ASKED
IF IT WAS HIS COPY. UPON RECEIVING A NEGATIVE REPLY AND BEING INFORMED
THAT HE WOULD RECEIVE A COPY, MR. VACHON STATED THAT HE HAD BEEN CAUGHT
COLD AND THAT HE WOULD WITHHOLD COMMENT UNTIL SUCH TIME AS HE COULD
STUDY THE LETTER. AFTER MR. VACHON WAS REASSURED THAT HE WOULD BE
"GETTING A COPY", THE MEETING ENDED WITHOUT FURTHER DISCUSSION. /1/
ON APRIL 4, 1974, MR. VACHON BECAME INVOLVED IN A DISPUTE WITH
SUPERVISOR DON LEE WITH RESPECT TO EMPLOYEE MANUAL MARTINEZ REPRESENTING
ANOTHER EMPLOYEE IN A COMPLAINT OR GRIEVANCE. DURING THE DISCUSSION OF
THE MATTER, MR. LEE INFORMED MR. VACHON THAT HE, LEE, WAS GOING TO
RESTRICT THE USE OF EMPLOYEE MARTINEZ' TIME IN REPRESENTING EMPLOYEES
"IN ACCORDANCE WITH THE POLICY". MR. LEE THEN PROCEEDED TO HAND MR.
VACHON A COPY OF A LETTER DATED APRIL 4, 1974, TO ALL SUPERVISORS FROM
COLONEL ROBERT STEVENS. THE LETTER WHICH WAS IDENTICAL TO THE UNDATED
TISSUE PAPER DRAFT SHOWN TO MR. VACHON A DAY EARLIER READ IN PERTINENT
PART AS FOLLOWS:
1. TO ASSURE THAT EMPLOYEES DEVOTE MOST OF THEIR CLOCK TIME TO THE
PERFORMANCE OF "JOB
DESCRIPTION" DUTIES, SUPERVISORS MUST EXERCISE INCREASED CONTROL IN
THIS AREA BY:
A. ACCUMULATING AND RETAINING ALL ADMINISTRATIVE PERMITS ISSUED TO
EMPLOYEE
REPRESENTATIVES DURING EACH PAY PERIOD AND CALCULATING THE AMOUNT OF
OFFICIAL TIME UTILIZED BY
EACH DURING THAT PAY PERIOD FOR THE PERFORMANCE OF REPRESENTATIONAL
DUTIES, AND
B. ASSERTING THAT ANY PERIOD OF OFFICIAL TIME IN EXCESS OF EIGHT
HOURS PER PAY PERIOD IS
APPROVED IN ADVANCE BY THE BRANCH CHIEF OR HIGHER AUTHORITY.
IT IS WELL SETTLED, BOTH UNDER THE EXECUTIVE ORDER APPLICABLE TO
PUBLIC EMPLOYEES AND THE NATIONAL LABOR RELATIONS ACT APPLICABLE TO
EMPLOYER-EMPLOYEE RELATIONS IN THE PRIVATE SECTOR, THAT A UNILATERAL
CHANGE IN A CONDITION OF EMPLOYMENT WITHOUT PRIOR CONSULTATION OR GOOD
FAITH BARGAINING IS VIOLATIVE OF SECTIONS 19(A)(1) AND (6) OF THE
EXECUTIVE ORDER AND SECTIONS 8(A)(1) AND (5) OF THE NATIONAL LABOR
RELATIONS ACT, RESPECTIVELY.
IT IS FURTHER WELL ESTABLISHED THAT, WITH THE EXCEPTION OF
NEGOTIATIONS FOR A COMPLETE COLLECTIVE BARGAINING CONTRACT, EMPLOYERS,
FOLLOWING GOOD FAITH CONSULTATION AND/OR NEGOTIATIONS, LEADING TO
IMPASSE, MAY UNILATERALLY IMPOSE CHANGES IN WORKING CONDITIONS WHICH DO
NOT EXCEED THE OFFERS OR PROPOSALS MADE IN THE PRIOR CONSULTATION OR
NEGOTIATIONS.
LASTLY, IT IS WELL SETTLED THAT IN THE FIELD OF MANAGEMENT
PREROGATIVE, I.E., THE RIGHTS RESERVED UNDER SECTION 12(B) OF THE ORDER,
AN EMPLOYER MAY MAKE UNILATERAL CHANGES PROVIDED THAT PRIOR TO THE
INSTITUTION OF SUCH CHANGES IT GIVES ADEQUATE NOTICE AND UPON REQUEST
BARGAINS AND/OR CONSULTS WITH THE UNION CONCERNING THE IMPACT ON UNIT
EMPLOYEES.
IN THE INSTANT CASE THE PARTIES WERE STILL ENGAGED IN UNFINISHED
NEGOTIATIONS FOR A COLLECTIVE BARGAINING CONTRACT COVERING THE GS UNIT
AT THE TIME THE RESPONDENT ELECTED TO UNILATERALLY CHANGE OR RESTRICT
THE "REASONABLE TIME" ALLOTTED UNDER THE AIR FORCE REGULATIONS FOR
GRIEVANCES OR COMPLAINT REPRESENTATION TO NO MORE THAN EIGHT HOURS PER
PAY PERIOD WITHOUT FURTHER CONSULTATION WITH HIGHER MANAGEMENT
AUTHORITY.
IN DEFENDING ITS ACTION WITH RESPECT TO THE UNILATERAL CHANGE,
RESPONDENT RELIES ON TWO BASES, I.E., MANAGEMENT PREROGATIVE AND
IMPASSE. WITH RESPECT TO IMPASSE, RESPONDENT CITES VARIOUS CIRCUIT
COURT DECISIONS UNDER THE NATIONAL LABOR RELATIONS ACT WHEREIN
UNILATERAL CHANGES WERE CONDONED. HOWEVER, INASMUCH AS THE CIRCUIT
COURT CASES RELIED UPON BY RESPONDENT DEAL WITH CHANGES AFTER IMPASSE IN
COMPLETE CONTRACT NEGOTIATIONS OR IMPASSE ON PARTICULAR SUBJECTS APART
FROM CONTRACT NEGOTIATIONS I FIND SUCH DECISIONS TO BE INAPPLICABLE. IF
THE PRINCIPLES DEVELOPED UNDER THE NATIONAL LABOR RELATIONS ACT ARE TO
BE APPLIED, HOWEVER, THE SUPREME COURT'S DECISION IN N.L.R.B. V. KATZ
369 U.S. 736, WOULD APPEAR TO BE CONTROLLING. IN KATZ, SUPRA, THE
SUPREME COURT FOUND THAT IN THE ABSENCE OF IMPASSE ON THE ENTIRE
COLLECTIVE BARGAINING CONTRACT UNDER NEGOTIATION, UNILATERAL CHANGES IN
ANY CONDITION OF EMPLOYMENT INVOLVED IN THE NEGOTIATIONS CONSTITUTES A
VIOLATION OF THE DUTY TO BARGAIN IN GOOD FAITH IMPOSED BY SECTION
8(A)(5) OF THE NATIONAL LABOR RELATIONS ACT. APPLYING THE KATZ DECISION
TO THE INSTANT FACTS, IT IS CLEAR THAT INASMUCH AS THE UNILATERAL CHANGE
HEREIN PRECEDED IMPASSE ON THE ENTIRE COLLECTIVE BARGAINING CONTRACT A
VIOLATION OF THE DUTY TO BARGAIN WITHIN THE MEANING OF SECTION 19(A)(6)
IS ESTABLISHED. /2/
MOREOVER, AND EVEN ASSUMING IMPASSE JUSTIFYING A UNILATERAL CHANGE OR
THAT THE CHANGE INVOLVED A MANAGEMENT RIGHT RESERVED UNDER SECTION 12(B)
OF THE ORDER, THE RECORD IS BARREN OF ANY EVIDENCE INDICATING THAT
ADEQUATE PRIOR NOTICE OF THE IMPENDING CHANGE WAS GIVEN TO THE UNION. IN
THE ABSENCE OF SUCH NOTICE THE UNION COULD NOT, OF COURSE, MAKE THE
REQUISITE REQUEST FOR BARGAINING WITH RESPECT TO IMPACT AND/OR
IMPLEMENTATION UNTIL THE CHANGE BECAME A FAIT ACCOMPLI. IN THESE
CIRCUMSTANCES I FIND THAT A VIOLATION OF SECTIONS 19(A)(6) IS
ESTABLISHED. /3/
AS TO THE RESPONDENT'S ALTERNATIVE DEFENSE, I.E., MANAGEMENT
PREROGATIVE, I FIND THAT UNDER ALL THE CIRCUMSTANCES PRESENT HEREIN, THE
RESPONDENT IS ESTOPPED FROM RELYING ON SAME. THUS, I NOTE THAT
"REASONABLE TIME" FOR REPRESENTATION WAS A CONDITION OF EMPLOYMENT
ESTABLISHED NOT BY THE RESPONDENT BUT RATHER BY THE AIR FORCE ITSELF.
WHILE RESPONDENT MAY BARGAIN UNDER THE UMBRELLA OF THE REGULATIONS, IT
CAN NOT TAKE IT UPON ITSELF TO UNILATERALLY ALTER SUCH CONDITION OF
EMPLOYMENT WITHOUT FURTHER CONSULTATION WITH THE UNION. /4/
ADDITIONALLY, IT WOULD APPEAR THAT THE RESPONDENT WAIVED ANY MANAGEMENT
PREROGATIVE THAT MAY HAVE EXISTED BY VIRTUE OF ITS ACTION IN INJECTING
THE MATTER OF "REPRESENTATION ON WORKING TIME" INTO THE COLLECTIVE
BARGAINING NEGOTIATIONS IN AN ATTEMPT TO SECURE A CONTRACTUAL PROVISION
CONCERNING SAME. ONCE SURRENDERING ITS SO-CALLED MANAGEMENT
PREROGATIVE, PARTICULARLY IN THE CIRCUMSTANCES PRESENT HEREIN,
RESPONDENT IS OBLIGATED TO TREAT THE SUBJECT MATTER INVOLVED AS ANY
OTHER CONDITION OF EMPLOYMENT, AND AWAIT A GOOD FAITH IMPASSE ON THE
COMPLETE CONTRACT BEFORE EFFECTING ANY UNILATERAL CHANGES THEREON. TO
HOLD OTHERWISE, WOULD GIVE THE RESPONDENT A DISTINCT ADVANTAGE IN
COLLECTIVE BARGAINING NEGOTIATIONS, SINCE A UNION WOULD ALWAYS BE
OPERATING UNDER THE CLOUD OR THREAT OF WITHDRAWAL SHOULD IT REJECT A
MANAGEMENT PROPOSAL DURING COLLECTIVE BARGAINING NEGOTIATIONS ON A
NONMANDATORY SUBJECT. SUCH CLOUD WOULD DEFINITELY BE A DETRIMENT TO
CONCESSIONS AND AN IMPEDIMENT TO NEGOTIATIONS.
I FURTHER CONCLUDE THAT BY THIS SAME CONDUCT, RESPONDENT VIOLATED
SECTION 19(A)(1) OF THE EXECUTIVE ORDER IN THAT SUCH CONDUCT INHERENTLY
INTERFERES WITH RESTRAINS AND COERCES UNIT EMPLOYEES IN THEIR RIGHT TO
HAVE THEIR EXCLUSIVE REPRESENTATIVE ACT FOR AND REPRESENT THEIR
INTERESTS, IN MATTERS CONCERNING GRIEVANCES, PERSONNEL POLICIES AND
PRACTICES AS ASSURED BY SECTION 10(E) OF THE ORDER. /5/
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT WHICH IS
VIOLATIVE OF SECTIONS 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS
AMENDED, I RECOMMEND THAT THE ASSISTANT SECRETARY ADOPT THE FOLLOWING
ORDER DESIGNED TO EFFECTUATE THE PURPOSES AND POLICIES OF THE ORDER.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE SAN ANTONIO AIR
LOGISTICS CENTER, SAN ANTONIO AIR MATERIEL AREA (AFLC), KELLY AIR FORCE
BASE, TEXAS, SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY CHANGING THE POLICY OR REGULATION GOVERNING USE OF
OFFICIAL WORKING TIME BY EMPLOYEE REPRESENTATIVES OR ANY OTHER CONDITION
OF EMPLOYMENT WHICH IS THE SUBJECT OF COLLECTIVE BARGAINING NEGOTIATIONS
UNTIL SUCH TIME AS A TOTAL IMPASSE IS REACHED ON SUCH NEGOTIATIONS AND
APPROPRIATE NOTICE OF ANY PROPOSED CHANGE IS GIVEN TO AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL UNION 1617, AFL-CIO, OR ANY
OTHER EXCLUSIVE REPRESENTATIVE.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER:
(A) REVOKE ANY UNILATERALLY ESTABLISHED CHANGE IN POLICY OR
REGULATION GOVERNING USE OF OFFICIAL WORKING TIME BY EMPLOYEE
REPRESENTATIVES UNTIL SUCH TIME AS A TOTAL IMPASSE IS REACHED IN
COLLECTIVE BARGAINING NEGOTIATIONS FOR A CONTRACT COVERING THE GS UNIT
AND APPROPRIATE NOTICE OF ANY PROPOSED CHANGE IS GIVEN TO AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL UNION 1617, AFL-CIO, OR ANY
OTHER EXCLUSIVE REPRESENTATIVE.
(B) POST AT ITS KELLY AIR FORCE BASE, SAN ANTONIO, TEXAS, COPIES OF
THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
ASSISTANT SECRETARY OF LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH
FORMS, THEY SHALL BE SIGNED BY COLONEL ROBERT E. STEVENS, USAF, CHIEF
OF PERSONNEL, AND THEY SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES
WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. COLONEL ROBERTS
SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED
OR DEFACED OR COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN WRITING WITHIN 20 DAYS FROM DATE OF THIS ORDER AS
TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY THEREWITH.
DATED: APRIL 22, 1975
WASHINGTON, D.C.
WE WILL NOT UNILATERALLY CHANGE THE POLICY OR REGULATIONS GOVERNING
USE OF OFFICIAL WORKING TIME BY EMPLOYEE REPRESENTATIVES OR ANY OTHER
CONDITION OF EMPLOYMENT WHICH IS THE SUBJECT OF COLLECTIVE BARGAINING
NEGOTIATIONS UNTIL SUCH TIME AS A TOTAL IMPASSE IS REACHED ON SUCH
NEGOTIATIONS AND APPROPRIATE NOTICE OF ANY PROPOSED CHANGE IS GIVEN TO
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL UNION 1617, AFL-CIO,
OR ANY OTHER EXCLUSIVE REPRESENTATIVE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL REVOKE ANY UNILATERALLY ESTABLISHED CHANGE IN POLICY OR
REGULATION GOVERNING USE OF OFFICIAL WORKING TIME BY EMPLOYEE
REPRESENTATIVES UNTIL SUCH TIME AS A TOTAL IMPASSE IS REACHED IN
COLLECTIVE BARGAINING NEGOTIATIONS FOR A CONTRACT COVERING THE GS UNIT
AND APPROPRIATE NOTICE OF ANY PROPOSED CHANGE IS GIVEN TO AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL UNION 1617, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE.
DATED: . . . BY: . . . (SIGNATURE) (TITLE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED
STATES DEPARTMENT OF LABOR, WHOSE ADDRESS IS: ROOM 2200, 911 WALNUT
STREET, KANSAS CITY, MISSOURI 64106.
/1/ THE FOREGOING DESCRIPTION OF THE AUGUST 3, 1974, MEETING IS BASED
UPON THE CREDITED TESTIMONY OF MR. VACHON, WHOSE TESTIMONY IN THIS
REGARD IS SUBSTANTIALLY CORROBORATED BY MR. ROBERTS.
/2/ WHILE DECISIONS OF BOTH THE COURTS AND THE NATIONAL LABOR
RELATIONS BOARD IN THE PRIVATE SECTOR ARE NOT CONTROLLING, THE ASSISTANT
SECRETARY HAS IN THE PAST LOOKED TO SUCH DECISIONS FOR GUIDANCE.
/3/ VETERANS ADMINISTRATION RESEARCH HOSPITAL, CHICAGO, ILLINOIS,
FLRC NO. 71 A-31; NAVAL PUBLIC WORKS CENTER, NORFOLK, VIRGINIA, FLRC,
NO. 71 A-56; UNITED STATES DEPARTMENT OF NAVY, BUREAU OF MEDICINE AND
SURGERY, GREAT LAKES NAVAL HOSPITAL, ILLINOIS, A/SLMR NO. 289; FEDERAL
AVIATION ADMINISTRATION, NATL. AVIATION FACILITIES EXPERIMENTAL CENTER,
ATLANTIC CITY, NEW JERSEY, A/SLMR NO. 329.
/4/ C.F. DEPARTMENT OF DEFENSE, AIR FORCE DEFENSE LANGUAGE INSTITUTE,
ENGLISH LANGUAGE BRANCH, LACKLAND AIR FORCE BASE, TEXAS. A/SLMR NO.
322.
/5/ ARMY AND AIR FORCE EXCHANGE SERVICE, PACIFIC EXCHANGE SYSTEM,
HAWAII REGIONAL EXCHANGE A/SLMR NO. 454.
5 A/SLMR 539; P. 498; CASE NO. 32-2833(CA); JULY 30, 1975.
DEPARTMENT OF DEFENSE,
STATE OF NEW JERSEY
A/SLMR NO. 539
ON NOVEMBER 16, 1973, THE ASSISTANT SECRETARY ISSUED AN ORDER
REFERRING MAJOR POLICY ISSUE TO THE FEDERAL LABOR RELATIONS COUNCIL IN
A/SLMR NO. 323 IN WHICH HE CONCLUDED THAT A REFUSAL TO PERMIT THE
NATIONAL ARMY AND AIR TECHNICIANS ASSOCIATION, I.U.E., AFL-CIO,
(COMPLAINANT), IN CONNECTION WITH THE PROCESSING OF AN EMPLOYEE'S
GRIEVANCE, ACCESS TO DOCUMENTS WHICH REFLECTED AN EVALUATION PANEL'S
ASSESSMENT OF "BEST QUALIFIED" CANDIDATES WOULD CONSTITUTE A VIOLATION
OF SECTION 19(A)(1) AND (6). HOWEVER, IT WAS NOTED THAT THE
RESPONDENT'S DEFENSE IN THE MATTER -- I.E., THAT THE FEDERAL PERSONNEL
MANUAL PROHIBITS THE DISCLOSURE OF SUCH INFORMATION -- RAISED A MAJOR
POLICY ISSUE WHICH REQUIRED REFERRAL TO THE FEDERAL LABOR RELATIONS
COUNCIL.
ON MAY 22, 1975, THE FEDERAL LABOR RELATIONS COUNCIL ISSUED ITS
DECISION FINDING THAT:
. . . APPLICABLE LAWS AND REGULATIONS, INCLUDING POLICIES SET FORTH
IN THE FEDERAL
PERSONNEL MANUAL, DO NOT SPECIFICALLY PRECLUDE THE RESPONDENT FROM
DISCLOSING TO THE GRIEVANT
(OR HIS REPRESENTATIVE), IN THE CONTEXT OF A GRIEVANCE PROCEEDING,
CERTAIN RELEVANT AND
NECESSARY INFORMATION USED BY THE EVALUATION PANEL IN ASSESSING THE
QUALIFICATIONS OF THE SIX
"BEST QUALIFIED" CANDIDATES FOR APPOINTMENT. THUS, THE AGENCY CAN
MAKE SUCH RELEVANT
INFORMATION AVAILABLE TO THE GRIEVANT (OR HIS REPRESENTATIVE) WITHOUT
ANY VIOLATION OF LAW,
RULES, OR COMMISSION DIRECTIVE PROVIDED THE MANNER IN WHICH THE
INFORMATION IS MADE AVAILABLE
PROTECTS THE PRIVACY OF THE EMPLOYEES INVOLVED BY MAINTAINING THE
CONFIDENTIALITY OF THE
RECORDS CONTAINING SUCH RELEVANT INFORMATION.
IN THE COUNCIL'S VIEW, DISCLOSURE TO THE GRIEVANT OF SUCH RELEVANT
MATERIALS (AFTER
MEASURES ARE TAKEN TO PROTECT THE PRIVACY OF THE EMPLOYEES INVOLVED
BY PROCEDURES SUCH AS
THOSE DESCRIBED IN THE APPENDIX) EFFECTUATES THE PURPOSE OF THE
ORDER. THAT IS, DISCLOSURE OF
THE MATERIALS MAY ENABLE THE GRIEVANT TO DECIDE WHETHER OR NOT TO
PROCEED WITH HIS GRIEVANCE,
WHILE THE REQUISITE ANONYMITY PROTECTS THE PRIVACY OF THE FEDERAL
EMPLOYEE, AS REQUIRED BY LAW
AND REGULATION.
BASED ON THE RATIONALE CONTAINED IN THE COUNCIL'S DECISION, AS WELL
AS IN A/SLMR NO. 323, THE ASSISTANT SECRETARY FOUND THAT THE
RESPONDENT'S REFUSAL TO PERMIT THE COMPLAINANT, IN CONNECTION WITH THE
PROCESSING OF AN EMPLOYEE'S GRIEVANCE, ACCESS TO DOCUMENTS WHICH
REFLECTED THE EVALUATION PANEL'S ASSESSMENT OF "BEST QUALIFIED"
CANDIDATES VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER. UNDER THESE
CIRCUMSTANCES, THE ASSISTANT SECRETARY ORDERED THAT THE RESPONDENT CEASE
AND DESIST FROM CONDUCT FOUND VIOLATIVE OF THE ORDER AND THAT IT TAKE
AFFIRMATIVE ACTIONS CONSISTENT WITH HIS DECISION.
DEPARTMENT OF DEFENSE,
STATE OF NEW JERSEY
AND
NATIONAL ARMY AND AIR TECHNICIANS
ASSOCIATION, I.U.E., AFL-CIO
ON NOVEMBER 16, 1973, I ISSUED AN ORDER REFERRING MAJOR POLICY ISSUE
TO THE FEDERAL LABOR RELATIONS COUNCIL. /1/ IN CONNECTION WITH THAT
DETERMINATION, IT WAS CONCLUDED THAT THE RESPONDENT'S CONDUCT IN
REFUSING TO PERMIT THE COMPLAINANT, IN CONNECTION WITH THE PROCESSING OF
AN EMPLOYEE'S GRIEVANCE, ACCESS TO DOCUMENTS WHICH REFLECTED AN
EVALUATION PANEL'S ASSESSMENT OF "BEST QUALIFIED" CANDIDATE, WOULD
CONSTITUTE A VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER.
HOWEVER, IT WAS NOTED THAT THE RESPONDENT'S DEFENSE IN THIS MATTER --
I.E., THAT THE FEDERAL PERSONNEL MANUAL PROHIBITED THE DISCLOSURE OF THE
INFORMATION SOUGHT BY THE COMPLAINANT -- RAISED A MAJOR POLICY ISSUE
WHICH REQUIRED REFERRAL TO THE FEDERAL LABOR RELATIONS COUNCIL.
ACCORDINGLY, THE FOLLOWING MAJOR POLICY ISSUE WAS REFERRED TO THE
COUNCIL FOR DECISION: "(W)HETHER APPLICABLE LAWS AND REGULATIONS,
INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL, PRECLUDE
THE RESPONDENT FROM DISCLOSING TO THE COMPLAINANT, IN THE CONTEXT OF A
GRIEVANCE PROCEEDING, CERTAIN RELEVANT AND NECESSARY DOCUMENTS USED BY
THE EVALUATION PANEL IN ASSESSING THE QUALIFICATIONS OF THE SIX 'BEST
QUALIFIED' CANDIDATES FOR APPOINTMENT, INCLUDING THE GRIEVANT."
ON MAY 22, 1975, THE FEDERAL LABOR RELATIONS COUNCIL ISSUED ITS
DECISION ON REFERRAL OF A MAJOR POLICY ISSUE FROM ASSISTANT SECRETARY
WHEREIN IT FOUND, IN PERTINENT PART, THAT:
. . . APPLICABLE LAWS AND REGULATIONS, INCLUDING POLICIES SET FORTH
IN THE FEDERAL
PERSONNEL MANUAL, DO NOT SPECIFICALLY PRECLUDE THE RESPONDENT FROM
DISCLOSING TO THE GRIEVANT
(OR HIS REPRESENTATIVE), IN THE CONTEXT OF A GRIEVANCE PROCEEDING,
CERTAIN RELEVANT AND
NECESSARY INFORMATION USED BY THE EVALUATION PANEL IN ASSESSING THE
QUALIFICATIONS OF THE SIX
"BEST QUALIFIED" CANDIDATES FOR APPOINTMENT. THUS, THE AGENCY CAN
MAKE SUCH RELEVANT
INFORMATION AVAILABLE TO THE GRIEVANT (OR HIS REPRESENTATIVE) WITHOUT
ANY VIOLATION OF LAW,
RULES, OR COMMISSION DIRECTIVE PROVIDED THE MANNER IN WHICH THE
INFORMATION IS MADE AVAILABLE
PROTECTS THE PRIVACY OF THE EMPLOYEES INVOLVED BY MAINTAINING THE
CONFIDENTIALITY OF THE
RECORDS CONTAINING SUCH RELEVANT INFORMATION.
IN THE COUNCIL'S VIEW, DISCLOSURE TO THE GRIEVANT OF SUCH RELEVANT
MATERIALS (AFTER
MEASURES ARE TAKEN TO PROTECT THE PRIVACY OF THE EMPLOYEES INVOLVED
BY PROCEDURES SUCH AS
THOSE DESCRIBED IN THE APPENDIX) EFFECTUATES THE PURPOSE OF THE
ORDER. THAT IS, DISCLOSURE OF
THE MATERIALS MAY ENABLE THE GRIEVANT TO DECIDE WHETHER OR NOT TO
PROCEED WITH HIS GRIEVANCE,
WHILE THE REQUISITE ANONYMITY PROTECTS THE PRIVACY OF THE FEDERAL
EMPLOYEE, AS REQUIRED BY LAW
AND REGULATION.
BASED ON THE COUNCIL'S HOLDING IN THE INSTANT CASE, AS WELL AS THE
RATIONALE CONTAINED IN A/SLMR NO. 323, I FIND THAT THE RESPONDENT'S
REFUSAL TO PERMIT THE COMPLAINANT, IN CONNECTION WITH THE PROCESSING OF
AN EMPLOYEE'S GRIEVANCE, ACCESS TO DOCUMENTS WHICH REFLECTED THE
EVALUATION PANEL'S ASSESSMENT OF "BEST QUALIFIED" CANDIDATES VIOLATED
SECTION 19(A)(1) AND (6) OF THE ORDER.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE DEPARTMENT OF
DEFENSE, STATE OF NEW JERSEY SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO PERMIT THE NATIONAL ARMY AND AIR TECHNICIANS
ASSOCIATION, I.U.E., AFL-CIO, ACCESS TO THE DOCUMENTS WHICH REFLECT THE
EVALUATION PANEL'S ASSESSMENT OF VINCENT TALLONE AND THE OTHER
APPLICANTS WHO WERE PLACED IN THE "BEST QUALIFIED" CANDIDATE CATEGORY
PURSUANT TO VACANCY ANNOUNCEMENT NO. 72-5.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) UPON REQUEST, AND AFTER APPROPRIATE MEASURES ARE TAKEN TO PROTECT
THE PRIVACY OF THE EMPLOYEES INVOLVED, PERMIT THE NATIONAL ARMY AND AIR
TECHNICIANS ASSOCIATION, I.U.E., AFL-CIO, ACCESS TO:
(1) THE DOCUMENTS WHICH REFLECT THE EVALUATION PANEL'S ASSESSMENT OF
VINCENT TALLONE AND THE OTHER APPLICANTS WHO WERE PLACED IN THE "BEST
QUALIFIED" CANDIDATE CATEGORY PURSUANT TO VACANCY ANNOUNCEMENT NO. 72-5.
(2) WHATEVER INFORMATION THE EVALUATION PANEL USED IN ASSESSING THE
QUALIFICATIONS OF THE SIX APPLICANTS WHO WERE PLACED IN THE "BEST
QUALIFIED" CANDIDATE CATEGORY PURSUANT TO VACANCY ANNOUNCEMENT NO. 72-5.
(B) POST AT ITS NEW JERSEY FACILITIES COPIES OF THE ATTACHED NOTICE
MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY
SHALL BE SIGNED BY THE COMMANDING OFFICER OF THE DEPARTMENT OF DEFENSE,
STATE OF NEW JERSEY 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.
(C) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THE
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
JULY 30, 1975
/1/ A/SLMR NO. 323
WE WILL NOT REFUSE TO PERMIT THE NATIONAL ARMY AND AIR TECHNICIANS
ASSOCIATION, I.U.E., AFL-CIO, ACCESS TO THE DOCUMENTS WHICH REFLECT THE
EVALUATION PANEL'S ASSESSMENT OF VINCENT TALLONE AND THE OTHER
APPLICANTS WHO WERE PLACED IN THE "BEST QUALIFIED" CANDIDATE CATEGORY
PURSUANT TO VACANCY ANNOUNCEMENT NO. 72-5.
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
EXECUTIVE ORDER.
WE WILL, UPON REQUEST, AND AFTER APPROPRIATE MEASURES ARE TAKEN TO
PROTECT THE PRIVACY OF THE EMPLOYEES INVOLVED, PERMIT THE NATIONAL ARMY
AND AIR TECHNICIANS ASSOCIATION, I.U.E., AFL-CIO, ACCESS TO:
(A) THE DOCUMENTS WHICH REFLECT THE EVALUATION PANEL'S ASSESSMENT OF
VINCENT TALLONE AND
THE OTHER APPLICANTS WHO WERE PLACED IN THE "BEST QUALIFIED"
CANDIDATE CATEGORY PURSUANT TO
VACANCY ANNOUNCEMENT NO. 72-5.
(2) WHATEVER INFORMATION THE EVALUATION PANEL USED IN ASSESSING THE
QUALIFICATIONS OF THE
SIX APPLICANTS WHO WERE PLACED IN THE "BEST QUALIFIED" CANDIDATE
CATEGORY PURSUANT TO VACANCY
ANNOUNCEMENT NO. 72-5.
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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR WHOSE ADDRESS IS: ROOM 3515, 1515 BROADWAY, NEW YORK, NEW YORK
10036.
5 A/SLMR 538; P. 496; CASE NO. 22-5630(CU/AC); JULY 30, 1975.
DEPARTMENT OF THE TREASURY,
BUREAU OF ALCOHOL, TOBACCO
AND FIREARMS,
WASHINGTON, D.C.
A/SLMR NO. 538
THIS CASE INVOLVES A PETITION FOR CLARIFICATION OF UNIT FILED BY THE
NATIONAL TREASURY EMPLOYEES UNION SEEKING TO CLARIFY THE DESCRIPTION OF
ITS EXISTING UNIT BY INCLUDING AMONG THE UNIT EXCLUSIONS THE CATEGORY
"CONFIDENTIAL EMPLOYEES", AND TO CLARIFY THE STATUS OF EMPLOYEES
DESIGNATED AS CLERK TO THE AREA SUPERVISOR. IN DISAGREEMENT WITH THE
PETITIONER WHO CONTENDED THAT CLERK TO THE AREA SUPERVISOR IN EACH OF
THE 45 AREA OFFICES OF THE ACTIVITY'S BUREAU OF REGULATORY ENFORCEMENT
SHOULD BE INCLUDED IN THE EXISTING UNIT, THE ACTIVITY CONTENDED THAT
THEY ARE CONFIDENTIAL EMPLOYEES AND SHOULD BE EXCLUDED FROM THE UNIT.
THE ASSISTANT SECRETARY FOUND THAT EMPLOYEES DESIGNATED AS CLERK TO
THE AREA SUPERVISOR ARE CONFIDENTIAL EMPLOYEES INASMUCH AS THEY ACT IN A
CONFIDENTIAL CAPACITY TO AN OFFICIAL WHO, IN HIS CAPACITY AS HEAD OF AN
AREA OFFICE, IS INVOLVED IN EFFECTUATING MANAGEMENT POLICIES IN THE
FIELD OF LABOR RELATIONS. HE NOTED THAT AN INCUMBENT IN THIS POSITION,
AS THE ONLY CLERICAL AND ADMINISTRATIVE EMPLOYEE IN AN AREA OFFICE,
TYPES AND PROCESSES PAPERWORK INVOLVING DISCIPLINARY ACTIONS,
REDUCTION-IN-FORCE, AND MATTERS RELATING TO THE AREA SUPERVISOR'S
RESPONSIBILITY FOR LABOR RELATIONS.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE DESCRIPTION OF
THE UNIT BE CLARIFIED TO INCLUDE AMONG THE UNIT EXCLUSIONS THE CATEGORY
"CONFIDENTIAL EMPLOYEES", AND EXCLUDED THE CLERK TO THE AREA SUPERVISOR
IN EACH OF THE 45 AREA OFFICES FROM THE UNIT.
DEPARTMENT OF THE TREASURY,
BUREAU OF ALCOHOL, TOBACCO
AND FIREARMS,
WASHINGTON, D.C.
AND
NATIONAL TREASURY EMPLOYEES UNION
UPON A PETITION /1/ DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER
11491, AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER DONALD K.
CLARK. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILED BY THE
PARTIES, THE ASSISTANT SECRETARY FINDS:
THE PETITIONER, NATIONAL TREASURY EMPLOYEES UNION, HEREINAFTER CALLED
NTEU, SEEKS CLARIFICATION OF AN EXISTING EXCLUSIVELY RECOGNIZED UNIT.
SPECIFICALLY, IT SEEKS TO CLARIFY THE DESCRIPTION OF THE EXISTING UNIT
BY INCLUDING AMONG THE UNIT EXCLUSIONS THE CATEGORY "CONFIDENTIAL
EMPLOYEES" AND BY CLARIFYING THE STATUS OF EMPLOYEES DESIGNATED AS CLERK
TO THE AREA SUPERVISOR. IN THIS LATTER REGARD, THE NTEU CONTENDS THAT
EMPLOYEES DESIGNATED AS CLERK TO THE AREA SUPERVISOR SHOULD BE INCLUDED
IN THE EXISTING UNIT. ON THE OTHER HAND, THE ACTIVITY TAKES THE
POSITION THAT THESE EMPLOYEES PERFORM CONFIDENTIAL LABOR-MANAGEMENT
DUTIES WHICH REQUIRE THEIR EXCLUSION FROM THE UNIT.
THE ACTIVITY, HEADQUARTERED IN WASHINGTON, D.C., IS ENGAGED IN
CRIMINAL AND REGULATORY ENFORCEMENT OF FEDERAL LAWS PERTAINING TO
FIREARMS, DISTILLED SPIRITS, THE LIQUOR INDUSTRY, AND THE WAGERING
INDUSTRY. ITS ENFORCEMENT PROGRAM IS CARRIED OUT IN SEVEN REGIONAL
OFFICES. LOCATED IN EACH REGIONAL OFFICE IS AN OFFICE OF REGULATORY
ENFORCEMENT WHICH IS SUBDIVIDED FURTHER INTO AREA OFFICES LOCATED
THROUGHOUT THE REGION. NATIONWIDE, THERE ARE 45 AREA OFFICES, EACH
HEADED BY AN AREA SUPERVISOR.
THE RECORD REVEALS THAT THE EMPLOYEE COMPLEMENT OF AN AREA OFFICE FOR
REGULATORY ENFORCEMENT CONSISTS OF A CLERK TO THE AREA SUPERVISOR AND
EIGHT OR MORE INSPECTORS. /2/ THE RECORD REVEALS THAT, UNDER THE TERMS
OF THE PARTIES' CURRENT NEGOTIATED AGREEMENT, MOST AREA SUPERVISORS ARE
FIRST-LINE SUPERVISORS HAVING AUTHORITY TO ADJUST GRIEVANCES AT THE
FIRST STEP OF THE NEGOTIATED GRIEVANCE PROCEDURE. /3/ IN AREA OFFICES
WHICH HAVE AN OFFICER IN CHARGE, THE AREA SUPERVISOR IS THE SECOND LEVEL
SUPERVISOR AND, AS NOTED ABOVE, IS AUTHORIZED TO ADJUST GRIEVANCES AT
THE SECOND STEP (INITIAL FORMAL STAGE) IN THE ADMINISTRATION OF THE
GRIEVANCE PROCEDURE. FURTHER, EACH AREA SUPERVISOR, IN HIS CAPACITY AS
HEAD OF THE AREA OFFICE, HAS OVERALL PERSONNEL RESPONSIBILITIES
PERTAINING TO THAT OFFICE.
THE RECORD REVEALS THAT THE CLERK TO THE AREA SUPERVISOR IS THE ONLY
CLERICAL AND ADMINISTRATIVE EMPLOYEE IN EACH OF THE 45 AREA OFFICES FOR
REGULATORY ENFORCEMENT. IN ADDITION TO PERFORMING NORMAL TYPING AND
FILING DUTIES AND HAVING THE OVERALL RESPONSIBILITY FOR MAINTAINING AREA
OFFICE FILES, THE EVIDENCE ESTABLISHES THAT AN INCUMBENT IN THIS
POSITION IS INVOLVED IN HANDLING RECORDS RELATING TO PERSONNEL AND LABOR
RELATIONS IN THE PARTICULAR AREA OFFICE. IN THIS REGARD, THE RECORD
REVEALS THAT THE INCUMBENT TYPES AND PROCESSES PAPERWORK INVOLVING
DISCIPLINARY ACTIONS, REDUCTION-IN-FORCE, AND MATTERS RELATING TO THE
AREA SUPERVISOR'S RESPONSIBILITY FOR LABOR RELATIONS.
UNDER THESE CIRCUMSTANCES, I FIND THAT CLERKS TO THE AREA SUPERVISORS
ARE CONFIDENTIAL EMPLOYEES INASMUCH AS THEY ACT IN A CONFIDENTIAL
CAPACITY TO AN OFFICIAL WHO, IN HIS CAPACITY AS HEAD OF THE AREA OFFICE,
IS INVOLVED IN EFFECTUATING MANAGEMENT POLICIES IN THE FIELD OF LABOR
RELATIONS. /4/ ACCORDINGLY, I SHALL EXCLUDE THE CLERK TO THE AREA
SUPERVISOR IN EACH OF THE 45 AREA OFFICES FOR REGULATORY ENFORCEMENT
FROM THE EXISTING EXCLUSIVELY RECOGNIZED UNIT.
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, IN
WHICH EXCLUSIVE RECOGNITION WAS GRANTED TO THE NATIONAL TREASURY
EMPLOYEES UNION ON APRIL 23, 1973, BE, AND IT HEREBY IS, CLARIFIED TO
READ AS FOLLOWS:
ALL GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES EMPLOYED BY THE
REGIONAL OFFICES OF THE
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, DEPARTMENT OF THE TREASURY,
LOCATED THROUGHOUT THE
COUNTRY, EXCLUDING EMPLOYEES ENGAGED IN CRIMINAL ENFORCEMENT,
PROFESSIONAL EMPLOYEES,
CONFIDENTIAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, GUARDS, AND SUPERVISORS AS
DEFINED BY EXECUTIVE ORDER
11492, AS AMENDED.
IT IS FURTHER ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, IN
WHICH EXCLUSIVE RECOGNITION WAS GRANTED TO THE NATIONAL TREASURY
EMPLOYEES UNION ON APRIL 23, 1973, BE, AND IT HEREBY IS, CLARIFIED BY
EXCLUDING FROM THE ABOVE-DESIGNATED UNIT EMPLOYEES DESIGNATED AS CLERK
TO THE AREA SUPERVISOR IN EACH OF THE 45 AREA OFFICES FOR REGULATORY
ENFORCEMENT.
DATED, WASHINGTON, D.C.
JULY 30, 1975
/1/ IN ITS PETITION HEREIN, THE PETITIONER SOUGHT, AMONG OTHER
THINGS, TO AMEND THE CERTIFICATION OF REPRESENTATIVE, ISSUED ON APRIL
23, 1973, TO REFLECT THE CHANGE IN THE NAME OF THE CERTIFIED
REPRESENTATIVE FROM THE PETITIONER'S FORMER NAME, THE NATIONAL
ASSOCIATION OF INTERNAL REVENUE EMPLOYEES, TO THE NATIONAL TREASURY
EMPLOYEES UNION. ON FEBRUARY 21, 1975, THE AREA DIRECTOR ISSUED AN
APPROPRIATE AMENDMENT OF CERTIFICATION IN THIS REGARD.
/2/ AN AREA OFFICE SERVICING A GEOGRAPHIC AREA WHERE DISTILLERIES ARE
LOCATED ALSO HAS A PLANT OFFICER AND AN OFFICER IN CHARGE. THE OFFICER
IN CHARGE IS RESPONSIBLE TO THE AREA SUPERVISOR AND SUPERVISES
INSPECTORS WHO ARE ASSIGNED TO DISTILLERIES.
/3/ ARTICLE 34, SECTION 7, OF THE AGREEMENT DESIGNATES TO THE
FIRST-LINE SUPERVISOR THE AUTHORITY TO ADJUST GRIEVANCES AT THE FIRST
STEP OF THE GRIEVANCE PROCEDURE, AND AUTHORIZES A SECOND LEVEL
SUPERVISOR TO ADJUST GRIEVANCES AT THE SECOND STEP (INITIAL FORMAL
STAGE) OF THE GRIEVANCE PROCEDURE.
/4/ CF. DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION, FLIGHT INSPECTION DISTRICT OFFICE, BATTLE CREEK,
MICHIGAN, A/SLMR NO. 313, AND CASES CITED AT FOOTNOTE 10.
5 A/SLMR 537; P. 486; CASE NOS. 72-4658, 72-4745; JULY 30, 1975.
DEPARTMENT OF THE AIR FORCE,
4392D AEROSPACE SUPPORT GROUP,
VANDENBERG AIR FORCE BASE, CALIFORNIA
A/SLMR NO. 537
THIS PROCEEDING AROSE UPON A FILING OF SEPARATE UNFAIR LABOR PRACTICE
COMPLAINTS BY AN INDIVIDUAL EMPLOYEE WHO WAS A LOCAL UNION PRESIDENT,
AND LOCAL 1001, NATIONAL FEDERATION OF FEDERAL EMPLOYEES (NFFE). ONE
COMPLAINT ALLEGED, IN PART, THAT THE RESPONDENT VIOLATED SECTION
19(A)(1) AND (6) OF THE ORDER BY STATEMENTS MADE BY THE CHIEF OF BASE
PROCUREMENT ON SEPTEMBER 26, 1973, AT A MEETING HELD TO DISCUSS THE
EMPLOYEES' EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT, THAT SOME ACTION
SHOULD BE TAKEN BY AN ARBITRATOR TO STOP THE LOCAL UNION PRESIDENT FROM
FILING CHARGES. A SECOND COMPLAINT ALLEGED VIOLATIONS OF SECTION
19(A)(1), (2) AND (4) OF THE ORDER BY DETAILING AND THEN PERMANENTLY
REASSIGNING THE UNION PRESIDENT TO ANOTHER POSITION BECAUSE OF HER
FILING COMPLAINTS AGAINST THE RESPONDENT, WHICH REASSIGNMENT WAS
ALLEGEDLY TO A POSITION WITH NO POSSIBILITY OF PROMOTION AND WHICH WAS
VULNERABLE TO A REDUCTION-IN-FORCE.
THE ADMINISTRATIVE LAW JUDGE FOUND THE STATEMENTS MADE BY THE CHIEF
OF BASE PROCUREMENT AT THE MEETING OF SEPTEMBER 26, 1973, WITH THE
EMPLOYEE AND OTHER MANAGEMENT OFFICIALS WERE NOT VIOLATIVE OF THE ORDER.
THE ADMINISTRATIVE LAW JUDGE ALSO FOUND THAT WORK PERFORMANCE, NOT
UNION ANIMUS, WAS THE MOTIVATING FACTOR IN THE UNION PRESIDENT'S JOB
REASSIGNMENT. IN REACHING THIS CONCLUSION, HE NOTED THE DISSATISFACTION
OF MANAGEMENT WITH THE UNION PRESIDENT'S WORK PERFORMANCE; THE
UNREBUTTED TESTIMONY OF THE UNION PRESIDENT'S SUPERVISORS AS TO HER JOB
INEFFICIENCY AND TARDINESS, AS WELL AS HER FREQUENT ABSENCES FROM THE
OFFICE WHICH, CONTRARY TO INSTRUCTIONS, WERE NOT REPORTED TO HER
SUPERVISORS; AND THAT HER SUPERVISORY APPRAISALS INDICATED THAT HER
WORK WAS SUFFERING AS FAR BACK AS 1972 FROM NEGLECT AND INATTENTION.
THE ADMINISTRATIVE LAW JUDGE ALSO NOTED THAT, CONTRARY TO THE UNION
PRESIDENT'S CONTENTION THAT HER REASSIGNMENT WAS MOTIVATED BY UNION
ANIMUS, THE RECORD INDICATED THAT THE REASSIGNMENT WOULD ALLOW THE
EMPLOYEE TO HAVE MORE TIME TO APPLY TO HER UNION ACTIVITIES. MOREOVER,
HE FOUND THAT THE RECORD WAS BARREN WITH RESPECT TO SHOWING THAT THE
REASSIGNMENT WAS MADE TO A JOB WITH NO CHANCES FOR PROMOTION, OR FOR
WHICH THE UNION PRESIDENT WAS NOT EQUIPPED BY TRAINING TO HANDLE. UNDER
ALL OF THE CIRCUMSTANCES, THE ADMINISTRATIVE LAW JUDGE FOUND NO
VIOLATIONS OF THE EXECUTIVE ORDER AND RECOMMENDED THAT THE COMPLAINT BE
DISMISSED.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER, AND THE ENTIRE RECORD IN THE CASE, INCLUDING THE
COMPLAINANT LABOR ORGANIZATION'S EXCEPTIONS AND SUPPORTING BRIEF, THE
ASSISTANT SECRETARY ADOPTED THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATION THAT THE COMPLAINT BE DISMISSED.
DEPARTMENT OF THE AIR FORCE,
4392D AEROSPACE SUPPORT GROUP,
VANDENBERG AIR FORCE BASE, CALIFORNIA
AND
MARIE BROGAN
DEPARTMENT OF THE AIR FORCE,
4392D AEROSPACE SUPPORT GROUP
VANDENBERG AIR FORCE BASE, CALIFORNIA
AND
LOCAL 1001,
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
ON MARCH 18, 1975, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICE
ALLEGED IN THE COMPLAINTS, AND RECOMMENDING THAT THE COMPLAINTS BE
DISMISSED IN THEIR ENTIRETY. THEREAFTER THE COMPLAINANT LABOR
ORGANIZATION FILED EXCEPTIONS AND A SUPPORTING BRIEF IN BEHALF OF ITSELF
AND COMPLAINANT BROGAN WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER.
THE ASSISTANT SECRETARY 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 CASES, INCLUDING THE
COMPLAINANT LABOR ORGANIZATION'S EXCEPTIONS AND SUPPORTING BRIEF, I
HEREBY ADOPT THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE
ADMINISTRATIVE LAW JUDGE.
I CONCUR WITH THE CONCLUSION OF THE ADMINISTRATIVE LAW JUDGE THAT,
UNDER THE PARTICULAR CIRCUMSTANCES HEREIN, CERTAIN STATEMENTS MADE BY
THE RESPONDENT'S CHIEF OF BASE PROCUREMENT ON SEPTEMBER 26, 1973, AT A
MEETING HELD TO CONSIDER AN EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT BY
THE COMPLAINANT, MARIE BROGAN, WERE NOT VIOLATIVE OF SECTION 19(A)(1)
AND (6) OF THE ORDER. FURTHER, I AGREE WITH THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS THAT THE DETAILING IN FEBRUARY 1974, AND THE PERMANENT
REASSIGNMENT ON APRIL 14, 1974, OF BROGAN TO ANOTHER WORK POSITION WERE
ALSO NOT VIOLATIVE OF SECTION 19(A)(1), (2) AND (4) OF THE ORDER. IN
THIS CONNECTION, IT WAS NOTED THAT THE UNDISPUTED EVIDENCE REFLECTS THAT
BROGAN'S WORK PERFORMANCE WAS SUBSTANDARD AND THAT THIS WAS THE FACTOR
WHICH WAS DETERMINATIVE IN MAKING THE REASSIGNMENT. IN THIS REGARD, THE
EVIDENCE ESTABLISHED THAT ALL OF BROGAN'S RECENT SUPERVISORS WERE
UNHAPPY WITH HER PERFORMANCE AND SO TESTIFIED WITHOUT CONTRADICTION.
THUS, IT IS UNCONTRADICTED THAT BROGAN WAS NOT PREPARING CONTRACTS ON
TIME; THAT SHE WAS ALLOWING LARGE TIME LAGS TO OCCUR IN HER WORK WHICH
RESULTED IN ORDERS BEING IMPROPERLY HANDLED; THAT SHE WAS TARDY FOR
WORK ON NUMEROUS OCCASIONS; AND THAT, CONTRARY TO REQUESTS OF HER
SUPERIORS, SHE WOULD NOT INFORM THEM WHEN LEAVING HER OFFICE TO ATTEND
TO UNION ACTIVITIES OR OTHER MATTERS. THE EVIDENCE INDICATES FURTHER
THAT, ALTHOUGH BROGAN ALLEGED THAT HER REASSIGNMENT WAS TO A "DEAD END
JOB" WHICH WOULD BE VULNERABLE TO A REDUCTION-IN-FORCE AND WHICH ALSO
REQUIRED HER TO PERFORM UNPLEASANT TASKS FOR WHICH SHE WAS TECHNICALLY
UNQUALIFIED, IN FACT, HER BACKGROUND IN THE CONTRACT PROCUREMENT FIELD
PROVIDED HER WITH THE EXPERTISE NECESSARY TO PERFORM THE JOB, MANY OF
HER TASKS COULD BE PERFORMED WITHOUT TECHNICAL EXPERTISE, AND SHE WAS
ABLE TO CALL UPON OTHER EMPLOYEES IN REGARD TO TECHNICAL MATTERS IN THE
EVENT THAT SUCH WAS NECESSARY. FURTHER, THERE IS NO EVIDENCE SUPPORTING
BROGAN'S CONTENTION THAT HER REASSIGNMENT TO THE NEW POSITION WOULD
PREVENT HER FROM BEING CONSIDERED FOR NORMAL PROMOTION AND IN-GRADE
ADVANCES OR MAKE HER MORE SUSCEPTIBLE TO A REDUCTION-IN-FORCE ACTION.
NOR DID THE EVIDENCE ESTABLISH THAT ANTI-UNION CONSIDERATIONS WERE A
MOTIVATING FACTOR IN BROGAN'S REASSIGNMENT. RATHER, THE UNCONTRADICTED
EVIDENCE INDICATES THAT THE RESPONDENT, IN EFFECTING THE TRANSFER OF
BROGAN, WAS MOTIVATED, IN PART, BY THE VIEW THAT BECAUSE OF THE NATURE
OF THE NEW POSITION, BROGAN WOULD BE AFFORDED THE OPPORTUNITY TO DEVOTE
MORE TIME TO UNION REPRESENTATIONAL DUTIES DURING HER WORKING DAY
WITHOUT DISRUPTION OF OTHER EMPLOYEES' JOB PERFORMANCE AS THE JOB WAS
LESS DEMANDING THAN THE ONE SHE FORMERLY HELD. /1/
IT IS HEREBY ORDERED THAT THE COMPLAINTS IN CASE NOS. 72-4658 AND
72-4745 BE, AND THEY HEREBY ARE, DISMISSED.
DATED, WASHINGTON, D.C.
JULY 30, 1975
/1/ IN THIS CONNECTION, IT WAS NOTED THAT, AT A MEETING HELD TO
DISCUSS BROGAN'S REASSIGNMENT, A REPRESENTATIVE OF THE COMPLAINANT
ACKNOWLEDGED THAT IN HER NEW POSITION BROGAN WOULD HAVE MORE TIME AND
OPPORTUNITY TO DEVOTE TO HER UNION REPRESENTATIONAL FUNCTIONS.
IN THE MATTER OF
DEPARTMENT OF THE AIR FORCE
4329 AEROSPACE SUPPORT GROUP
VANDENBERG AIR FORCE BASE, CALIFORNIA
AND
MARIE BROGAN
AND
DEPARTMENT OF THE AIR FORCE
4329 AEROSPACE SUPPORT GROUP
VANDENBERG AIR FORCE BASE, CALIFORNIA
AND
LOCAL 1001, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
FRANK SPRAGUE, ESQUIRE
LABOR RELATIONS COUNSEL
4329 AEROSPACE SUPPORT GROUP
VANDENBERG AIR FORCE BASE
CALIFORNIA 93437
IRVING GELLER, ESQUIRE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET, N.W.
WASHINGTON, D.C. 20006
BEFORE: WILLIAM NAIMARK
PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON OCTOBER 11,
1974 BY THE ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES
ADMINISTRATION OF THE UNITED STATES DEPARTMENT OF LABOR, SAN FRANCISCO
REGION, A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSTANDING ON
NOVEMBER 12 AND 13, 1974 AT VANDENBERG AIR FORCE BASE, CALIFORNIA.
THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREIN CALLED THE ORDER) BY THE FILING OF A COMPLAINT IN CASE NO.
72-4658 ON FEBRUARY 19, 1974 BY MARIE BROGAN AGAINST DEPARTMENT OF THE
AIR FORCE, VANDENBERG AIR FORCE BASE, CALIFORNIA (HEREIN CALLED
RESPONDENT) ALLEGING VIOLATIONS OF SECTION 19(A)(1), (2) AND (4) OF THE
ORDER. AN AMENDED COMPLAINT IN CASE NO. 72-4658 ALLEGED VIOLATIONS OF
19(A)(1) AND (6) BASED ON (A) CERTAIN STATEMENTS MADE BY COLONEL
CALVERT, CHIEF OF BASE PROCUREMENT, ON SEPTEMBER 26, 1973 THAT SOME
ACTION SHOULD BE TAKEN BY AN ARBITRATOR WHO COULD STOP MARIE BROGAN FROM
FILING CHARGES WHICH GO BACK TO 1968; (B) A STATEMENT BY COLONEL
CALVERT ON OCTOBER 30, 1973 BEFORE AN EXAMINER FROM THE APPELLATE AND
REVIEW OFFICE IN SAN ANTONIO, TEXAS THAT THERE WAS AN OVERLAPPED PERIOD
IN UNION ACTIVITIES AND SUBSTANDARD PERFORMANCE. /1/
A COMPLAINT WAS FILED IN CASE NO. 72-4745 ON MAY 16, 1974 BY LOCAL
1001, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, (HEREIN CALLED
COMPLAINANT UNION) AGAINST RESPONDENT ALLEGING VIOLATIONS OF SECTION
19(A)(1), (2) AND (4) OF THE ORDER. /2/ THIS COMPLAINT ALLEGED THAT
RESPONDENT DETAILED, AND THEN PERMANENTLY REASSIGNED, MARIE BROGAN TO
ANOTHER POSITION BECAUSE OF HER FILING COMPLAINTS AGAINST RESPONDENT;
THAT SUCH REASSIGNMENT WAS TO A POSITION WITH NO POSSIBILITY OF
PROMOTION AND WHICH WAS VULNERABLE TO A REDUCTION IN FORCE.
BOTH PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. THEREAFTER, THE PARTIES FILED BRIEFS WHICH
HAVE BEEN DULY CONSIDERED BY THE UNDERSIGNED. IN HIS BRIEF
COMPLAINANTS' COUNSEL CONTENDS THAT, ALTHOUGH 19(A)(2) AND (4)
ALLEGATIONS WERE DELETED IN CASE NO. 72-4658, A FINDING SHOULD BE MADE
IN SUPPORT THEREOF SINCE (A) THE COMPLAINT WAS AMENDED AMID CONFUSION,
(B) THE DELETIONS WERE AT THE RECOMMENDATION OF THE AREA LMSA COMPLIANCE
OFFICER, AND (C) THE FACTS ARE SET FORTH IN THE COMPLAINT. /3/ AT THE
HEARING SAID COUNSEL CONTENDED THAT, WITH RESPECT TO CASE NO. 72-4658,
RESPONDENT VIOLATED 19(A)(6) OF THE ORDER BY REASSIGNING MARIE BROGAN TO
ANOTHER JOB WITHOUT CONSULTING OR MEETING WITH THE UNION IN THAT REGARD.
/4/
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS:
1. AT ALL TIMES MATERIAL HEREIN COMPLAINANT UNION HAS BEEN THE
EXCLUSIVE BARGAINING REPRESENTATIVE OF RESPONDENT'S NON-PROFESSIONAL
EMPLOYEES AT VANDENBERG AIR FORCE BASE, CALIFORNIA. COMPLAINANT'S
COLLECTIVE BARGAINING AGREEMENT WITH RESPONDENT HAD EXPIRED, AND THE
PARTIES ARE, AND HAVE BEEN, ENGAGED IN NEGOTIATIONS LEADING TO A NEW
CONTRACT.
2. MARIE BROGAN, AN EMPLOYEE OF RESPONDENT, HAS BEEN PRESIDENT OF
THE COMPLAINANT UNION FOR APPROXIMATELY FIVE YEARS. AS A REPRESENTATIVE
OF THE UNION SHE HAS BEEN VERY ACTIVE ON BEHALF OF FELLOW EMPLOYEES,
FILING NUMEROUS EEO AND DEPARTMENT OF LABOR COMPLAINTS, HANDLING
COMPENSATION AND DISABILITY CASES, AND APPEARING BEFORE THE CIVIL
SERVICE COMMISSION IN ADVERSE ACTION APPEAL MATTERS. MOREOVER, BROGAN
HAS PROCESSED GRIEVANCES UNDER PRIOR CONTRACTS WITH RESPONDENT, AND HAS
BEEN ENGAGED ON BEHALF OF THE UNION IN NEGOTIATIONS WITH MANAGEMENT FOR
A NEW COLLECTIVE BARGAINING AGREEMENT.
3. ON SEPTEMBER 26, 1973 A MEETING WAS HELD IN BASE COMMANDER
COLONEL HOFFMAN'S OFFICE TO DISCUSS AND CONSIDER AN EEO COMPLAINT FILED
BY BROGAN IN WHICH SHE WAS ALLEGED TO BE A VICTIM OF SEX DISCRIMINATION.
THIS MEETING WAS ATTENDED BY BROGAN, LT. COLONEL JAMES W. CALVERT, BASE
PROCUREMENT CHIEF, SYLVESTER COLE, AN EEO COUNSELLOR, COLONEL HOFFMAN,
LOIS JOHNS, AN EEO COUNSELLOR-TRAINEE, AND MR. LOWSLEY. /5/
(A) AT THE AFORESAID MEETING CALVERT ASKED HIS EEO COUNSELLOR IF
THERE WERE NOT SOME WAY TO STOP MARIE BROGAN FROM FILING ALL THE CHARGES
AND WHAT RECOURSE MANAGEMENT HAD IF THE CHARGES HAD NO MERIT. HE ALSO
STATED IT WAS A WASTE OF TIME CONSIDERING THESE CHARGES SINCE IT TIED UP
EMPLOYEES AND KEPT THEM FROM THEIR JOBS. CALVERT ALSO SUGGESTED, OR
RAISED THE QUERY, AS TO WHETHER AN ARBITRATOR COULDN'T BE BROUGHT IN TO
HANDLE THESE COMPLAINTS AGAINST RESPONDENT. /6/
(B) LOIS JOHNS TESTIFIED THAT CALVERT ALSO SAID, AT THE MEETING ON
SEPTEMBER 26, THAT HE HAD A FILE ON BROGAN WITH MANY THINGS IN IT GOING
BACK TO 1968; THAT BROGAN ASKED IF HE HAD A FILE ON ANYONE ELSE AND
CALVERT STATED HE DID NOT. SYLVESTER COLE TESTIFIED CALVERT STATED AT
THE MEETING HE HAD A FILE ON BROGAN WHICH CONTAINED A STACK OF PAPERS;
THAT HE READ AT ALL AND IT WAS A WASTE OF TIME. MARIE BROGAN AVERS THAT
AFTER CALVERT QUERIED WHETHER SOME ACTION COULD BE TAKEN TO STOP HER
FROM FILING CHARGES, SHE ASKED HOW HE KNEW SO MUCH ABOUT HER ACTIVITIES.
WHEREUPON, ACCORDING TO BROGAN, THE COLONEL REPLIED HE'D BEEN THROUGH A
WHOLE DRAWER OF THEM GOING BACK TO 1968. UPON BEING ASKED BY BROGAN HOW
MANY OTHERS HE KEPT RECORDS ON GOING BACK TO 1968, CALVERT REMARKED HE
ONLY HAD RECORDS FOR THIS EMPLOYEE.
WHILE THE THREE VERSIONS DIFFER AS TO THE AFORESAID STATEMENT BY
CALVERT, /7/ I ACCORD GREATER WEIGHT TO BROGAN'S NARRATIVE IN THIS
RESPECT DUE TO HER PRECISE AND DETAILED TESTIMONY. ACCEPTING HER
TESTIMONY REGARDING THIS PARTICULAR STATEMENT BY CALVERT, I FIND THAT
THE COLONEL STATED HE HAD A WHOLE DRAWER OF CHARGES GOING BACK TO 1968
WHICH HE HAD BEEN THROUGH, AND THAT HE HAD NO SUCH RECORDS OF CHARGES OR
COMPLAINTS FILED BY ANY OTHER EMPLOYEE.
4. MARIE BROGAN HAS BEEN EMPLOYED IN RESPONDENT'S PROCUREMENT UNIT
FOR TWENTY YEARS. IN FEBRUARY OR MARCH 1973 SHE WAS ASSIGNED AS A
PROCUREMENT AGENT, 1102, GS-9. PRIOR THERETO BROGAN WAS A BUYER OF
ELECTRONICS EQUIPMENT AND A CONTRACT ADMINISTRATOR IN THE PROCUREMENT
DIVISION. AS A PROCUREMENT AGENT, BROGAN WROTE SERVICE CONTRACTS,
PREPARED INVITATIONS FOR BIDS (IFB) WHICH WERE SENT OUT TO SEVERAL
BIDDERS, ABSTRACTED THE BIDS AND SENT LOW ONES THROUGH CHANNELS FOR
APPROVAL, TOOK CONTRACTORS OUT ON TOURS TO SEE PARTICULAR SITES, AND
DISTRIBUTED COPIES OF CONTRACTS. SHE WAS RESPONSIBLE FOR THIRTY-THREE
CONTRACTS IN THIS POSITION. IN THE PERFORMANCE OF HER JOB IN
PROCUREMENT BROGAN HAD A WORKING KNOWLEDGE OF, AMONG OTHER SUBJECTS,
MINIMUM WAGE LAW, DAVIS-BACON ACT, OVERTIME LAWS, AIR FORCE RULES, AND
DEPARTMENT OF LABOR REGULATIONS.
5. IN THE SERVICES PROCUREMENT BRANCH THE REGULAR SERVICES BUYERS
WERE BROGAN AND SGT. BARNES. WORKING PART-TIME IN PERFORMING SUCH
DUTIES WAS MARY L. ALLEN, A CONSTRUCTION BUYER WHO WAS ASSIGNED TO THAT
BRANCH. SINCE JULY, 1971 VIRGIL F. PREM WAS THE DEPUTY CHIEF OF
PROCUREMENT, AND HAROLD MATTISON ACTED AS CHIEF OF SERVICES BUYING
BRANCH FROM OCTOBER 1, 1972 UNTIL HE LEFT VAF ON SEPTEMBER 2, 1973.
MATTISON, A GS-11 WAS THE DIRECT SUPERVISOR OF BROGAN DURING SUCH
PERIOD, AND AFTER HIS DEPARTURE HE WAS REPLACED TEMPORARILY ON SEPTEMBER
5, 1973 BY CAPTAIN KENNETH L. GERKEN WHO SUPERVISED BROGAN UNTIL HE LEFT
VAF ON JANUARY 5, 1974. PRIOR TO COMING WITH THE SERVICE SECTION,
GERKEN WORKED IN PROCUREMENT FOR ABOUT A YEAR AS BRANCH CHIEF
RESPONSIBLE FOR CONTRACT ADMINISTRATION. IN ORDER TO FILL MATTISON'S
POSITION, RESPONDENT FIRST SOUGHT A REPLACEMENT AIR FORCE WIDE, AND
FINALLY WENT DOD WIDE WHEN NOT SATISFIED WITH POSSIBLE SUCCESSORS FROM
WHICH TO CHOOSE.
6. MARIE BROGAN TESTIFIED, AND I FIND, THAT WHILE WORKING AS A
SERVICE BUYER IN PROCUREMENT, AND FOR ABOUT 5 YEARS, SHE SPENT BETWEEN
25% TO 65% OR 70% OF HER DAY ON UNION MATTERS, AND THAT, ON SOME
OCCASIONS, SHE DEVOTED AS MUCH AS 90% OF HER DAILY TIME TO UNION
ACTIVITIES. BROGAN ALSO STATED THAT WHEN SHE SPENT 80% - 90% OF HER
TIME ON UNION BUSINESS SHE COULD SOMETIMES PERFORM HER REGULAR WORK.
7. IN RESPECT TO BROGAN'S WORK AS A CONTRACT ADMINISTRATOR, AN
APPRAISAL /8/ DATED FEBRUARY 28, 1972 WAS MADE BY VIRGIL PREM AS DEPUTY
CHIEF OF PROCUREMENT. HIS RATING OF BROGAN INCLUDED THE FOLLOWING
DETERMINATIONS: (A) "HER KNOWLEDGE OF PROCEDURES AND NEGOTIATION
PROCESS IS OUTSTANDING. NEEDS TO BE MORE CONSISTENT IN WORK QUALITY . .
. ; (B) HAS THE ABILITY TO SCHEDULE TIME TO MEET DEADLINES BUT WORK
WITH NO DEADLINE IS OFTEN NOT ACCOMPLISHED IN A TIMELY MANNER; (C)
WRITTEN COMMUNICATION IS OUTSTANDING AND TO THE POINT; (D) ORAL
COMMUNICATION IS ADEQUATE. NEEDS TO KEEP TO THE POINT AND EXCLUDE
EXTRANEOUS DETAILS; (E) WORKS WELL WITH OTHERS BUT NEEDS TO BECOME MORE
TOLERANT OF OTHERS . . . ; (F) HAS POTENTIAL TO BE OUTSTANDING
SUPERVISOR IF SHE LEARNS TO ORALLY COMMUNICATE AND CONSIDER THE ADVICE
OF OTHERS."
8. MATTISON TESTIFIED THAT WHILE BROGAN'S PERFORMANCE AS A SERVICE
BUYER WAS ADEQUATE DURING THE FIRST FEW MONTHS, THE QUALITY OF HER WORK
DETERIORATED THEREAFTER AND BECAME A PROBLEM AROUND FEBRUARY OR MARCH,
1973. COLONEL EVANS HAD INQUIRED OF HIM AS TO THE STATUS OF THE FOOD
SERVICES CONTRACTS, WHICH HAD BEEN ASSIGNED TO BROGAN. MATTISON TOLD
EVANS THAT BROGAN WAS CAPABLE OF DOING THE JOB, BUT DID NOT SEEM TO WANT
TO DO IT; THAT OTHER EMPLOYEES HAD TO UNDERTAKE MARIE'S WORK WHEN SHE
WAS ABSENT, AND SHE WAS BELLIGERENT WHEN HE DISCUSSED IT WITH HER. THE
SUPERVISOR ALSO ADVISED EVANS THAT BROGAN WAS GONE FOR HOURS ON UNION
BUSINESS.
MATTISON FURTHER TESTIFIED THAT IF HER WORK WAS ADEQUATE, HE COULD
HAVE MANAGED HIS BRANCH NOTWITHSTANDING BROGAN'S ABSENCES. SHE DID NOT
PERFORM HER WORK WHEN PRESENT ON THE JOB, AND THEREFORE, THE REAL
PROBLEM WAS NOT HER BEING AWAY SO MUCH OF THE TIME. HOWEVER, MATTISON
STATED THAT THERE WERE OCCASIONS WHEN BROGAN'S EXTENDED ABSENCES OR
BEING ON THE TELEPHONE FOR HOURS DID AFFECT THE WORK SHE WAS EXPECTED TO
HANDLE. HE REQUESTED THAT SHE INFORM HIM WHEN SHE NEEDED TIME FOR UNION
AFFAIRS, BUT BROGAN LEFT THE JOB FREQUENTLY WITHOUT LETTING HIM KNOW.
IN ADDITION, BROGAN WAS TARDY ON A DAILY BASIS.
9. A LETTER /9/ FROM MATTISON TO BROGAN, DATED JULY 16, 1973, IN
RESPECT TO THE LATTER'S WORK PERFORMANCE, WAS GIVEN TO HER BY THE
SUPERVISOR. IT NOTIFIED BROGAN THAT HER JOB PERFORMANCE FOR THE MONTH
OF OF JUNE, 1973 AND THE FIRST HALF OF JULY, 1973, WERE LESS THAN
SATISFACTORY. SPECIFICALLY, IT AVERRED THAT (A) WHILE THE PURCHASE
REQUEST AND SPECIFICATIONS FOR A FOOD SERVICE CONTRACT WAS GIVEN TO HER
ON MAY 7, 1973, NO SOLICITATION WAS PREPARED TO SEND PROSPECTIVE
BIDDERS, WHICH SHOULD HAVE BEEN DONE BY JULY 1, 1973 - AND NO SYNOPSIS
OF A PREPARED PROCUREMENT PLAN, AS WELL AS NO PROCUREMENT PLAN, WERE
PREPARED; (B) A MISTAKE IN A BID ON A CUSTODIAL CONTRACT WAS RECEIVED
ON JUNE 25, 1973 AND WAS NOT PROCESSED EXPEDITIOUSLY, RESULTING IN
MATTISON'S PREPARING THE FILE AND FORWARDING IT ON JULY 13, SINCE BROGAN
DID NOT DO SO; (C) SEVERAL SMALL CONTRACTS, AS REFUSE COLLECTION FOR
CAMBRIA AFS, WERE NOT READY FOR AWARD BY JULY 1, 1973. THE LETTER ALSO
RECITED THAT BROGAN EXHIBITED A LACK OF ORGANIZATION AND CONCERN,
ALLOWING DOCUMENTS TO PILE UP SO THAT A SEARCH WAS REQUIRED TO LOCATE
SAME, AND THAT SHE WAS TARDY IN FOUR SUCCESSIVE DAYS, JULY 9 THROUGH 11
AS SPECIFIED. IT FURTHER STATED THAT THE SUPERVISOR WOULD ASSIST BROGAN
IN ORGANIZING OR SUPERVISING HER WORK; THAT HER WORK WOULD BE CAREFULLY
OBSERVED, AND FAILURE TO SHOW IMPROVEMENT WITHIN 60-90 DAYS COULD LEAD
TO PERSONNEL ACTION AGAINST HER; HOWEVER, THAT SINCE BROGAN HAD THE
NECESSARY JOB KNOWLEDGE AND CAPABILITY, MATTISON DID NOT EXPECT SUCH
ACTION TO BE NECESSARY.
10. BROGAN, WHILE NOT DISPUTING THE SPECIFIC ITEMS SET FORTH IN
MATTISON'S LETTER, TESTIFIED THAT THERE WAS A BID BACKLOG AT THE END OF
THE FISCAL YEAR; THAT MATTISON TOLD HER TO LET MARY ALLEN, THE
CONSTRUCTION BUYER, PROCESS ALL OF HER CONSTRUCTION CONTRACTS AND LET
THEIR CONTRACTS GO TILL AFTER THE BEGINNING OF THE NEW FISCAL YEAR;
THAT SHE CALLED THE CONTRACTOR TO PROCEED WITH THE SERVICES REQUIRED.
SHE FURTHER DECLARED THAT SHE TRAINED SGT. BARNES AS WELL AS ALLEN;
THAT HER WORK WAS CHANGED DURING HER ABSENCES SO THAT INAPPLICABLE
CLAUSES WERE ADDED, INFORMATION INSERTED, AND PAGES RENUMBERED OUT OF
SEQUENCE - ALL REQUIRING REVISION BY HER UPON RETURNING TO WORK.
11. PREM TESTIFIED THAT BROGAN DID NOT PRODUCE AS A PROCUREMENT
AGENT; THAT A GREAT TIME LAG EXISTED BETWEEN THE TIME WHEN PURCHASE
REQUESTS WERE RECEIVED AND ACTION TAKEN THEREON BY SAID EMPLOYEE, AND,
ON ONE OCCASION BROGAN DID NOT WRITE THE PURCHASE ORDER UNTIL 53 DAYS
AFTER ITS RECEIPT; AND SHE SPENT MUCH TIME TALKING TO OTHERS IN THE
OFFICE OR ON THE PHONE.
12. IN JULY 1973, ACCORDING TO PREM, PERSONNEL PERFORMANCE
STANDARDS, WHICH WERE PREPARED FOR OTHER BRANCHES PREVIOUSLY, WERE
DEVELOPED FOR POSITIONS IN THE PROCUREMENT BRANCH. BETWEEN SEPTEMBER
1973 AND FEBRUARY 1974 SUSPENSE CONTROLS WERE INSTITUTED IN THE SERVICE
BUYING SECTION TO CONTROL INPUT AND OUTPUT. THERE HAD NOT BEEN ANY
CONTROLS IMPOSED IN RESPECT TO PURCHASE REQUESTS, AND TABS WERE PUT ON
ALL EMPLOYEES IN THE SECTION.
13. ROBERT B. GOTTFREDSON, CHIEF OF EMPLOYMENT AND CAREER
DEVELOPMENT, TESTIFIED, AND I FIND, THAT BROGAN WAS ON THE LIST OF
ELIGIBLES FOR A GS-11 WHILE IN PROCUREMENT, BUT NOT AMONG THE HIGHEST
THEREON. SHE WAS ONE OF EIGHT RATED AS HIGHLY QUALIFIED WHEN MATTISON
WAS SELECTED AS SUPERVISOR IN OCTOBER 1972. WHEN MATTISON LEFT, BROGAN
WAS RATED AS QUALIFIED BUT NOT AMONG THE BEST QUALIFIED EMPLOYEES IN
THAT BRANCH.
14. CAPTAIN GERKEN, WHO REPLACED MATTISON, TESTIFIED THAT BROGAN'S
WORK WAS SUB-STANDARD; THAT SHE WAS ABSENT FREQUENTLY WITHOUT
PERMISSION, PRESUMABLY ON UNION BUSINESS. HE STATED, HOWEVER, THAT
NEITHER THE WORKLOAD NOR HER ABSENCES FOR UNION ACTIVITIES HAD A BEARING
ON THE QUALITY OF HER WORK; THAT SHE DID NOT SCHEDULE HER WORK
PROPERLY; THAT HER WORK WAS NOT PROFICIENT, REQUIRING HIM OR OTHERS TO
REDO IT ON OCCASION. GERKEN SPOKE TO PREM AND COLONEL CALVERT WHO ASKED
HOW BROGAN WAS PERFORMING, AND HE INFORMED THEM SHE WAS NOT DOING WELL
AND DID NOT MEET HER SUSPENSES, I.E., GETTING SPECIFICATION FOR THE
USER, PREPARING A PACKAGE, AND GETTING WAGE DETERMINATIONS FROM THE DOL
- ALL WELL IN ADVANCE OF THE PACKAGE GOING OUT INTO THE MAIL FOR BID.
DURING THE FIRST TWO WEEKS OF OCTOBER 1973 GERKEN PREPARED A LETTER
/10/ ADDRESSED TO BROGAN, WHICH WAS A PROPOSAL TO SEPARATE HER FROM THE
FEDERAL SERVICE FOR POOR PERFORMANCE. THE LETTER SET FORTH NUMEROUS
ALLEGED INSTANCES OF POOR PERFORMANCE AND MISTAKES BY BROGAN IN HANDLING
PURCHASE ORDERS AND CONTRACTS, AS WELL AS HER FAILURE TO TAKEN ACTION IN
SPECIFIC MATTERS. IT WAS NEVER GIVEN TO BROGAN SINCE THE ULTIMATE
DECISION BY RESPONDENT WAS TO REASSIGN HER IN LIEU OF SEPARATION.
15. IN AND ABOUT SEPTEMBER OR OCTOBER 1973, AS A RESULT OF
COMPLAINTS BY SUPERVISORS IN PROCUREMENT TO ALLEN CULLMAN, CIVILIAN
PERSONNEL OFFICER, MEETINGS WERE HELD TO DISCUSS BROGAN'S WORK
PERFORMANCE. CULLMAN TESTIFIED THAT IT WAS FELT THE UNION BUSINESS
ATTENDED TO BY BROGAN INTERFERED WITH HER WORK; THAT WHILE SHE HAD A
GOOD KNOWLEDGE OF PROCUREMENT TASKS, SHE COULDN'T MEET DEADLINES DUE TO
UNION BUSINESS CONDUCTED BY HER. AT THESE MEETINGS CONSIDERATION WAS
GIVEN TO REASSIGNING BROGAN TO A PLACE WHERE HER ABSENCES TO ATTEND TO
UNION AFFAIRS WOULD NOT BE CRITICAL UPON ORGANIZATIONAL PERFORMANCE.
SINCE THERE WERE SO FEW EMPLOYEES IN SERVICE BUYING, HER ABSENCES
AFFECTED THE PRODUCTIVITY OF THE UNIT. AT SUBSEQUENT MEETINGS IN
JANUARY OR FEBRUARY 1974, CULLMAN PROPOSED THE REASSIGNMENT TO COLONEL
CARTER, AND MANAGEMENT REPRESENTATIVES DISCUSSED WHETHER IT WAS PROPER
TO REASSIGN BROGAN IN VIEW OF HER POSITION WITH THE UNION AND WHAT
EFFECT IT MIGHT HAVE UPON LABOR-MANAGEMENT RELATIONS AT THE BASE.
16. COLONEL CARTER, WHO APPROVED THE REASSIGNMENT OF BROGAN
TESTIFIED HE RECEIVED COMPLAINTS FROM COLONEL CALVERT AND CAPTAIN GERKIN
RE BROGAN'S POOR JOB PERFORMANCE IN SEPTEMBER AND OCTOBER 1973. /11/
THEY ADVISED HIM SHE COULD NOT ACCOMPLISH HER ASSIGNMENT AND TASKS IN
PROCUREMENT DUE TO HER INVOLVEMENT IN SO MANY UNION MATTERS. MOREOVER,
SINCE THERE WERE ONLY TWO REGULARS AS SERVICE BUYERS PLUS AN ADDED
PERSON TO ASSIST, 50% OF THE STAFF WAS ABSENT WHEN SHE LEFT THE JOB.
HER SUPERVISORS STATED THEY HAD NO CONTROL OVER THE TIME BROGAN SPENT ON
HER REGULAR DUTIES AND ON OTHER MATTERS. CARTER AVERRED HE SPOKE TO THE
UNION'S PRESIDENT ON SEVERAL OCCASIONS WITH RESPECT TO THIS MATTER, AND
ALSO TRIED TO ESTABLISH A REASONABLE TIME TO BE ALLOCATED TO EACH
ENDEAVOR. NO DEFINITIVE ARRANGEMENT WAS EVER REACHED IN RESPECT
THERETO.
CARTER TESTIFIED HE DISCUSSED THE REASSIGNMENT WITH OTHER MANAGEMENT
OFFICIALS; THAT NO MENTION WAS MADE OF AN INTENTION TO RETALIATE
AGAINST HER FOR FILING CHARGES OR ENGAGING IN UNION BUSINESS; THAT THE
DECISION WAS DUE TO THE FACT THAT THE QUALITY OF WORK PERFORMED BY
PROCUREMENT WAS SUFFERING AS A RESULT OF BROGAN'S PERFORMANCE ON THE JOB
AND BEING AWAY THEREFROM SO OFTEN; AND THAT THE REASSIGNMENT WAS NOT
EFFECTED DOWNGRADE BROGAN.
17. BROGAN WAS DETAILED ON FEBRUARY 11, 1974, AND REASSIGNED ON
APRIL 14, 1974, TO THE CIVIL ENGINEERING SQUADRON (ENGINEERING AND
CONSTRUCTION BRANCH) AS A SERVICE CONTRACT SPECIALIST. A MEETING WAS
HELD TO DISCUSS THE DETAIL SEVERAL DAYS THEREAFTER, AND WAS ATTENDED BY
MARIE BROGAN, HOMER R. HOSINGTON, NFFE REPRESENTATIVE, COLONEL CARTER
AND COMMANDER JONATHAN J. LUSTIG, CIVIL ENGINEERING BRANCH. IN ADDITION
TO RESISTING THE DETAIL, BROGAN HAD THREE OBJECTIONS: (A) THE RECITAL
IN A LETTER TO LUSTIG, WRITTEN PRIOR THERETO, OF BROGAN'S POOR
PERFORMANCE AND THE DISPLEASURE OF MANAGEMENT; (B) THE CIVIL SERVICE
ADMINISTRATION NUMERICAL DESIGNATION OF HER FUNCTIONAL AREA; (C)
POSSIBLE JEOPARDY OF HER FUTURE GRADE SINCE SHE WAS BEING TRANSFERRED TO
A JOB PERFORMED BY SOMEONE ELSE AS A GS-7. THE PARTIES WORKED OUT
CERTAIN CORRECTIONS AND CHANGED SOME DETAILS TO MAKE IT MORE AGREEABLE
TO BROGAN. CARTER AGREED TO DELETE THE REFERENCE IN A LETTER /12/ TO
BROGAN DATED FEBRUARY 5, 1974, REGARDING HER POOR PERFORMANCE, AND
HOSINGTON CONCURRED THAT SHE WOULD HAVE MORE TIME AND OPPORTUNITY IN HER
NEW JOB TO WORK WITH THE UNION.
18. COLONEL CARTER TESTIFIED THE DETAIL OF BROGAN WAS TO A POSITION
WHICH COULD TAKE ADVANTAGE OF HER PROCUREMENT EXPERIENCE AND STILL PUT
HER CLOSER TO THE UNION REPRESENTATIVES. SINCE BROGAN WOULD BE SPENDING
MUCH TIME IN CONTRACT NEGOTIATIONS, MANAGEMENT WANTED TO SCHEDULE HER
WORK AROUND THE UNION ACTIVITIES. IT DID NOT WANT TO LET AN OVERBALANCE
OF UNION DUTIES INTERFERE WITH A SENSITIVE JOB REQUIRING CONTINUITY OF
PERFORMANCE.
19. AS A SERVICE CONTRACT SPECIALIST BROGAN REPORTS TO THE CHIEF OF
CONSTRUCTION MANAGEMENT SECTION MR. MCCOMB. IT IS A NEW CIVILIAN
POSITION, HAVING BEEN AN EXISTENT MILITARY JOB DIRECTED TO CIVILIAN AS
PART OF AN AIR FORCE CONVERSION PROJECT. BROGAN REPRESENTS THE CIVIL
ENGINEER AS A CENTRAL CONTROL POINT FOR MONITORING CONTRACT PERFORMANCE
- BASE CUSTODIAL AND OTHER ASSIGNED CONTRACTS. THE POSITION DESCRIPTION
CALLS FOR MONITORING A $400.000 CUSTODIAL CONTRACT. AS A REASSIGNMENT
THE POSITION WAS EXEMPT FROM COMPETITIVE PROVISIONS OF THE MERIT
PROMOTION PLAN, AND NO ADVERTISEMENT THEREFORE WAS NECESSARY. AS
SERVICE CONTRACT SPECIALIST BROGAN WAS RESPONSIBLE FOR INSURING
CONTRACTOR COMPLIANCE, WHICH REQUIRES A KNOWLEDGE OF CONTRACTS AND THE
NEGOTIATIONS INVOLVED. AS CONTRACT INSPECTOR BROGAN DEALS WITH CONTRACT
CHANGES AND REQUESTS, AND ACTS IN LIAISON WITH THE CUSTOMERS.
20. AFTER HER REASSIGNMENT AS A SERVICE CONTRACT SPECIALIST, BROGAN
WAS APPOINTED AS TECHNICAL REPRESENTATIVE OF THE CONTRACTING OFFICE
(TRCO) IN RESPECT TO SEVERAL INDIVIDUAL CONTRACTS. /13/ THE TRCO IS
RESPONSIBLE FOR MONITORING THE CONTRACTOR'S PERFORMANCE AND INSPECTING
THE SERVICES REORDERED. HE ATTENDS MEETINGS WHEN REQUIRED, KEEP RECORDS
OF SERVICES RECEIVED, NOTES DEFICIENCIES, AND SIGNS CERTIFICATES OF
CONTRACT PERFORMANCE. HE IS REQUIRED, UNDER REGULATION 70-9 IN
EVIDENCE, /14/ TO POSSESS A HIGH DEGREE OF TECHNICAL KNOWLEDGE OF THE
SERVICE BEING PROCURED.
21. SEVERAL OF THE CONTRACTS TO WHICH BROGAN WAS ASSIGNED AT TRCO
REQUIRED, INTER ALIA, THAT SHE PERFORM SUCH TASKS AS (A) APPROVING
SAMPLES OF ALL CHEMICALS TO BE USED; (B) INSPECT EACH EXHAUST SYSTEM
FOR SATISFACTORY WORK; (C) INSURE THAT GREASE TRAPS ARE PROPERLY
CLEANED AND WASTE DISPOSED OF; (D) ENSURE THAT CHEMICAL TOILETS ARE
MAINTAINED AND SERVICED; (E) ENSURE THAT SAVAGED PUMPED FROM THE
CHEMICAL TOILETS IS PROPERLY DISPOSED OF; (F) ENSURE THAT PUMPING
EQUIPMENT AND TRUCKS ARE IN GOOD CONDITION.
22. ALTHOUGH BROGAN TESTIFIED, AND I FIND, THAT SHE WAS NOT FAMILIAR
WITH THE TECHNICAL ASPECT OF CERTAIN TASKS, AND HERETOFORE SPECIFIED,
THE RECORD INDICATES THE JOB COULD BE PERFORMED WITHOUT SUCH TECHNICAL
KNOWLEDGE. FURTHER, BROGAN MAY, IF SHE NEEDS ASSISTANCE, CALL UPON
EMPLOYEES WHO ARE MEMBERS OF TRADES IN REGARD TO TECHNICAL MATTERS.
COMPLAINANT BROGAN CONTENDS THAT THE STATEMENTS MADE BY COLONEL
CALVERT ON SEPTEMBER 26, 1973, IN THE PRESENCE OF OTHER EMPLOYEES,
REGARDING THE UNION PRESIDENT, CONSTITUTED INTERFERENCE AND RESTRAINT IN
VIOLATION OF THE ORDER. SHE INSISTS THAT THE REMARKS WERE PART OF A
DESIGN AND PROGRAM TO FRUSTRATE BROGAN'S ACTIVISM ON BEHALF OF THE UNION
HEREIN, AND THAT, AS UTTERED, THEY CONVEY AN IMPLIED THREAT TO
ACCOMPLISH SUCH AIM.
AFTER REVIEWING CAREFULLY THE STATEMENTS MADE BY CALVERT AT THE
MEETING ON SEPTEMBER 26, CONCERNING CHARGES AND COMPLAINTS FILED BY
MARIE BROGAN, I AM NOT PERSUADED THAT THEY WERE VIOLATIVE OF 19(A)(1).
IT IS NOTED THAT CALVERT HAD JUST RECENTLY ASSUMED HIS POSITION AS CHIEF
OF BASE PROCUREMENT, AND HE HAD BEEN CONFRONTED WITH THE NUMEROUS
CHARGES AND COMPLAINTS FILED BY BROGAN, AS UNION REPRESENTATIVE, AGAINST
MANAGEMENT. HIS QUERIES, RHETORICAL IN FORM, AS TO (A) WHAT COULD BE
DONE TO STOP BROGAN FROM FILING CHARGES AND (B) WHETHER AN ARBITRATOR
COULD NOT BE BROUGHT IN TO HANDLE THEM, WERE NOT, IN MY OPINION, A
THREAT, EXPRESS OR IMPLIED, DIRECTED TOWARD THAT EMPLOYEE. CALVERT'S
WORDS EVINCED AN UNDERSTANDABLE CONCERN, AND THEY BESPOKE OF A DESIRE TO
ELIMINATE THESE ADVERSARY MATTERS WHICH CONSUMED SO MUCH TIME, AS WELL
AS DIVERTED EMPLOYEES FROM THEIR DUTIES AND WORK PERFORMANCES. NEITHER
WAS CALVERT'S QUESTION, AS TO WHAT RECOURSE MANAGEMENT HAD AGAINST
BROGAN IF THE CHARGES PROVED GROUNDLESS, REFLECTIVE OF AN INTENTION TO
PUNISH HER FOR ENGAGING IN UNION ACTIVITIES. IT IS SEEMINGLY REFERABLE
TO AN INQUIRY CONCERNING MANAGEMENT'S RIGHTS IN THIS REGARD, AND I FIND
NOTHING COERCIVE IN AN EMPLOYER'S ATTEMPT TO PROTECT ITSELF FROM A FLOW
OF CHARGES WHICH MAY BE FOUND TO BE WITHOUT MERIT. IN ANY EVENT, WITHIN
THE FRAMEWORK OF A NEW OFFICER BECOMING ACQUAINTED WITH THE NUMEROUS
GRIEVANCES AND COMPLAINTS FILED AGAINST THE BASE, I DO NOT CONSIDER HIS
COMMENTS IN THIS REGARD INDICATIVE OF AN INTENT TO EITHER FRUSTRATE OR
INTERFERE WITH THE RIGHTS OF BROGAN, OR OTHER EMPLOYEES, GUARANTEED BY
THE ORDER.
IN RESPECT TO CALVERT'S STATEMENT THAT HE HAD A DRAWER OR FILE OF
BROGAN'S CHARGES AND COMPLAINTS GOING BACK TO 1968, I DO NOT CONCLUDE IT
CARRIES THE IMPLICATION THAT MANAGEMENT WAS EITHER MONITORING BROGAN'S
UNION ACTIVITIES OR ENGAGING IN ESPIONAGE THEREOF. BROGAN'S TESTIMONY
REVEALS THAT CALVERT'S REMARK WAS IN REPLY TO HER INQUIRY AS TO HOW HE
KNEW SO MUCH OF HER ACTIVITIES SINCE SHE HARDLY SPOKE TO HIM SINCE HIS
ARRIVAL. IN THIS POSTURE, CALVERT'S RETORT WAS A LEGITIMATE EXPLANATION
OF HIS FAMILIARITY WITH HER NUMEROUS ACTIVITIES RESULTING IN THE FILING
OF CHARGES AND COMPLAINTS.
MOREOVER, HIS REPRESENTATION, IN ANSWER TO BROGAN'S FURTHER QUERY,
THAT THERE WAS NO FILE OR DRAWER ON ANY OTHER EMPLOYEE DOES NOT ALTER MY
CONCLUSION. SINCE, FOR THE MOST PART, BROGAN FILED ALL GRIEVANCES AND
COMPLAINTS ON BEHALF OF OTHER EMPLOYEES AND THE UNION, IT IS
UNDERSTANDABLE THAT MANAGEMENT WOULD NOT HAVE OTHER FILES OR RECORDS OF
SUCH FILINGS. THUS, CALVERT'S COMMENT IN THIS REGARD DOES NOT WARRANT
THE CONCLUSION THAT RESPONDENT WAS "KEEPING TABS" ON BROGAN'S UNION
ACTIVITIES. IT MIGHT WELL BE EXPECTED THAT MANAGEMENT WOULD KEEP A FILE
ON CHARGES OR COMPLAINTS FILED BY OTHER INDIVIDUALS IF NUMEROUS ENOUGH
TO REQUIRE THIS PROCEDURE. IN ANY EVENT, THE STATEMENTS RE THE
RETENTION OF A FILE OR DRAWER OF CHARGES INITIATED BY BROGAN SOLELY DOES
NOT, IN MY OPINION, REFLECT AN EFFORT, ON MANAGEMENT'S PART, TO
INTERFERE WITH HER ACTIONS IN THIS REGARD. RATHER, DO THEY REVEAL A
LEGITIMATE RIGHT OF RESPONDENT TO MAINTAIN FILES OR RECORDS OF CHARGES
AND COMPLAINTS PROCESSED, ALBEIT BY BROGAN OR OTHER EMPLOYEES. IN LIGHT
OF THIS CONCERN, I FIND NO RESTRAINING FORCE IN CALVERT'S STATEMENTS,
AND WOULD CONCLUDE THEY ARE NOT VIOLATIVE OF THE ORDER.
THE BASIC CONTENTION BY COMPLAINANT UNION HEREIN IS THAT MARIE BROGAN
WAS DETAILED OUT OF THE PROCUREMENT UNIT, AND THEN REASSIGNED
PERMANENTLY, TO CIVIL ENGINEERING BECAUSE OF HER ACTIVE PARTICIPATION AS
UNION PRESIDENT. IT IS ALLEGED THAT BROGAN'S CONSTANT ATTENDANCE TO
GRIEVANCES AND COMPLAINTS ON BEHALF OF HER FELLOW EMPLOYEES, MOTIVATED
THE DETAIL ON FEBRUARY 11, 1974 AND THE PERMANENT REASSIGNMENT,
EFFECTIVE ON APRIL 14, 1974.
UNDER SECTION 19(A)(2) OF THE ORDER, AS PATTERNED AFTER 8(A)(3) OF
THE NATIONAL LABOR RELATIONS ACT, AN EMPLOYER MAY NOT DISCRIMINATE
AGAINST AN EMPLOYEE'S CONDITIONS OF EMPLOYMENT TO DISCOURAGE MEMBERSHIP
IN A LABOR ORGANIZATION. THE CASES IN THE PRIVATE SECTOR ARE LEGION
THAT A DISCHARGE OF AN EMPLOYEE, OR OTHER CHANGE OF AN EMPLOYEE'S
STATUS, BY AN EMPLOYER BECAUSE OF UNION ACTIVITIES WILL NECESSARILY
DISCOURAGE SUCH UNION MEMBERSHIP AND IS HENCE AN UNFAIR LABOR PRACTICE.
IT IS ALSO ESTABLISHED IN THAT SECTOR THAT EVEN WHERE THE EMPLOYER IS
ONLY PARTLY MOTIVATED BY AN EMPLOYEE'S UNION ACTIVITY, THE LATTER'S
DISCHARGE IS VIOLATIVE OF THE NATIONAL LABOR RELATIONS ACT. NLRB V.
GREAT EASTERN COLOR LITHOGRAPH 309 F.2D 352. ON THE OTHER HAND, IT IS
ALSO SETTLED THAT THE PROTECTION AFFORDED EMPLOYEES, IN THE PRIVATE
SECTOR, TO ENGAGE IN SUCH ACTIVITIES MAY BECOME UNPROTECTED IN CERTAIN
CIRCUMSTANCES. THUS, AN EMPLOYEE MAY NOT DISREGARD HIS JOB IN FAVOR OF
UNION AFFAIRS AND NEGLECT HIS DUTIES. HIS UNION ACTIVITIES DO NOT
INSULATE HIM FROM APPROPRIATE DISCIPLINE WHEN THE EMPLOYEE FAILS TO
PERFORM HIS WORK PROPERLY. NORTHSIDE ELECTRIC COMPANY, 151 NLRB 34.
IT IS CLEAR FROM THE RECORD THAT BROGAN'S WORK PERFORMANCE WAS A
FACTOR WHICH ULTIMATELY LED TO HER REASSIGNMENT. COMMENCING IN FEBRUARY
OR MARCH, 1973, COMPLAINTS WERE MADE REGARDING HER HANDLING OF FOOD
SERVICES CONTRACTS, AND FINALLY IN JULY 16, 1973 BROGAN WAS NOTIFIED
THAT HER PERFORMANCE WAS UNSATISFACTORY. SPECIFICALLY, AFTER A PURCHASE
REQUEST AND SPECIFICATIONS FOR "FOOD SERVICE" CONTRACT WAS GIVEN HER,
SHE FAILED TO PREPARE SOLICITATIONS AND SEND SAME TO BIDDERS, AND SHE
NEGLECTED TO PREPARE A PROCUREMENT PLAN; FAILED TO PREPARE REFUSE
COLLECTION CONTRACTS FOR CAMBRIA AFS AND OTHERS FOR AWARDS; NEGLECTED
TO WRITE A PURCHASE ORDER UNTIL 53 DAYS AFTER ITS RECEIPT, AND ALLOWED A
LARGE TIME LAG TO OCCUR BETWEEN THE DATE WHEN OTHER PURCHASE ORDERS WERE
RECEIVED AND ACTION TAKEN ON THEM BY HER; FAILED TO MEET HER SUSPENSES;
WAS TARDY ON FOUR SUCCESSIVE DAYS AND OTHER OCCASIONS; AND SHE DID NOT
SCHEDULE HER WORK PROPERLY.
THE APPRAISAL OF BROGAN EXECUTED BY PREM IN 1970 DOES NOT NEGATE THIS
CONCLUSION THAT HER WORK WAS SUFFERING FROM NEGLECT AND INATTENTION.
WHILE PREM REMARKED IN THE APPRAISAL THAT BROGAN HAD OUTSTANDING
KNOWLEDGE OF PROCEDURES AND NEGOTIATION PROCESS AS A CONTRACT
ADMINISTRATOR, HE ALSO ADVERTED TO HER INABILITY TO ACCOMPLISH WORK IN
TIMELY FASHION AND OF HER NEED TO BE MORE CONSISTENT IN QUALITY. IN ANY
EVENT, ALL HER SUPERVISORS WERE DISSATISFIED WITH BROGAN'S PERFORMANCE
AS A SERVICE BUYER IN 1973, AND THE DISSATISFACTION RESULTED IN
COMPLAINTS TO COLONEL EVANS AND COLONEL CARTER AS WELL AS A PROPOSAL BY
HER SUPERVISOR, CAPTAIN GERKEN, THAT SHE BE TERMINATED FROM THE SERVICE.
COMPLAINANT CONTENDS, IN SUPPORT OF ITS ALLEGED DISCRIMINATION
DIRECTED TOWARD BROGAN, THAT WHEN MATTISON LEFT IN OCTOBER 1972
RESPONDENT LEFT THE POSITION VACANT FOR A TIME AND THEN FILLED IT WITH A
MILITARY PERSON TO FURTHER HARASS BROGAN. IT WAS FURTHER SUGGESTED THAT
BROGAN WOULD HAVE BEEN A LOGICAL SUCCESSOR TO MATTISON. THERE IS NO
EVIDENCE, DESPITE MANAGEMENT'S SEEKING A REPLACEMENT FOR MATTISON
OUTSIDE THE AIR FORCE, THAT ITS ACTION WAS DESIGNED TO OBSTRUCT BROGAN'S
CAREER ON HER EMPLOYMENT. FURTHER, AT THIS TIME, AS APPEARS FROM
TESTIMONY OF GOTTFREDSON WHO WAS CHIEF OF CAREER DEVELOPMENT, BROGAN WAS
RATED AS QUALIFIED, BUT NOT AMONG THE BEST QUALIFIED, IN PROCUREMENT.
IN RESPECT TO THE CAUSES FOR REASSIGNING BROGAN TO THE CIVIL
ENGINEERING SQUADRON, I AM PERSUADED THAT HER FREQUENT ABSENCES FROM
PROCUREMENT TO ATTEND TO UNION BUSINESS WAS, IN PART, A REASON FOR THE
TRANSFER. WHILE MATTISON TESTIFIED HE WOULD HAVE MANAGED IF BROGAN'S
WORK WAS ADEQUATE, HE ADMITTED THAT HER CONTINUAL AND EXTENDED ABSENCES
(WHICH WERE NOT ATTRIBUTABLE TO ANY ENDEAVOR OTHER THAN UNION BUSINESS)
DID AFFECT THE WORK ASSIGNED HER. FURTHER, CULLMAN, WHO PROPOSED THE
REASSIGNMENT, TESTIFIED THAT MANAGEMENT FELT IT WAS THE UNION BUSINESS
TO WHICH SHE ATTENDED WHICH INTERFERED WITH BROGAN'S WORK. BOTH CALVERT
AND GERKEN ADVISED COLONEL CARTER THAT THE EMPLOYEE COULD NOT ACCOMPLISH
HER TASKS DUE TO HER EXTENSIVE INVOLVEMENT IN UNION BUSINESS, AND CARTER
TESTIFIED HE SOUGHT A POSITION FOR BROGAN WHICH WOULD ALLOW HER TO SPEND
MORE TIME ON UNION ACTIVITIES BUT NOT REQUIRE CONTINUITY OF PERFORMANCE
AS WAS NEEDED IN PROCUREMENT.
THE RECORD SUPPORTS THE CONCLUSION THAT MANAGEMENT WAS AWARE OF
BROGAN'S INTENSIVE ACTIONS ON BEHALF OF FELLOW EMPLOYEES IN BOTH FILING
GRIEVANCES AND COMPLAINTS ON THEIR BEHALF. HER SUPERVISORS KNEW BROGAN
WAS INVOLVED IN CONTRACT NEGOTIATIONS WITH MANAGEMENT LEADING TO A NEW
LABOR AGREEMENT, AND THE EVIDENCE ADDUCED HEREIN ESTABLISHES THAT
BROGAN'S FREQUENT ABSENCES FROM WORK - AS WELL AS LENGTHY PHONE CALLS -
WERE FOR THE PURPOSE OF TRANSACTING UNION BUSINESS. THEREFORE, THE
CRITICAL ISSUE IS WHETHER BROGAN'S ACTIVITIES OF THIS NATURE PROTECTED
HER FROM THE TRANSFER OUT OF PROCUREMENT. SINCE IT THUS APPEARS THAT
HER ABSENCES FOR UNION AFFAIRS WERE IN PART, AT LEAST, RESPONSIBLE FOR
THE TRANSFER OF BROGAN, IT IS VITAL TO CONSIDER THESE ACTIVITIES AND THE
AMOUNT OF TIME SPENT THEREON. /15/
IN RESPECT TO BROGAN'S ATTENDANCE TO UNION AFFAIRS, AS A UNION
REPRESENTATIVE, THE RECORD REFLECTS SHE DEVOTED AN UNUSUAL AMOUNT OF
TIME THERETO. HER TESTIMONY REVEALS THAT BETWEEN 25% TO 90% OF HER DAY
WAS SPENT ON SUCH ACTIVITIES, AND THAT, ON OCCASION, 90% OF HER DAILY
TIME WAS SO OCCUPIED. BY HER OWN ADMISSION BROGAN COULD NOT ALWAYS
PERFORM HER WORK TASKS WHEN ATTENDING TO UNION AFFAIRS 90% OF THE DAY.
IT ALSO APPEARS THAT, AS TESTIFIED TO BY HER SUPERVISOR, MATTISON, SHE
OFTEN LEFT THE JOB WITHOUT NOTIFYING HIM. FURTHER, BROGAN SPENT HOURS
ON THE TELEPHONE ATTENDING TO UNION BUSINESS DURING HER WORKDAY. BOTH
OF BROGAN'S SUPERVISORS, MATTISON AND GERKIN, ALSO TESTIFIED THAT SHE
WAS WARNED ABOUT THESE EXCESSIVE ABSENCES AND THEIR EFFECT UPON HER JOB
PERFORMANCE.
WHILE I RECOGNIZE THAT UNION ACTIVITIES OF AN EMPLOYEE MUST BE
ACCORDED PROTECTION UNDER THE ORDER, THIS RIGHT TO ENGAGE THEREIN MUST
AT TIMES BE BALANCED AGAINST THE RIGHT OF AN EMPLOYER TO INSIST UPON
PERFORMANCE BY AN EMPLOYEE OF HIS ASSIGNED TASKS IN A TIMELY AND PROPER
FASHION. IN THE CASE AT BAR, I AM CONVINCED THAT BROGAN'S ABSENCES FROM
DUTY, AND HER PHONE CONVERSATIONS, CONSUMED AN INORDINATE AMOUNT OF TIME
AND THUS PREVENTED HER FROM DEVOTING SUFFICIENT NUMBER OF HOURS TO HER
JOB. THE AMOUNT OF TIME SPENT BY BROGAN ON UNION BUSINESS, WITHOUT
APPROVAL OR SANCTION BY MANAGEMENT, WAS EXCESSIVE AND WOULD NECESSARILY
REDUCE THE EFFECTIVENESS OF THE UNIT IN WHICH SHE WORKED. IN THIS
INSTANCE, IN VIEW OF THE FACT THAT ONLY 2 REGULARS WORKED AS SERVICE
BUYERS, IT COULD HAVE A 50% EFFECT UPON PRODUCTIVITY. SEE NORTHSIDE
ELECTRIC CO., SUPRA.
RECORD FACTS DO NOT DISCLOSE AN ANTI-UNION ANIMUS ON THE PART OF
MANAGEMENT IN REGARD TO BROGAN'S ROLE AS UNION PRESIDENT. SHE HAD BEEN
PERMITTED CONSIDERABLE LATITUDE IN THE PERFORMANCE OF UNION DUTIES WHILE
PROCUREMENT, AND THE RECORD IS BARREN OF ANY ATTEMPTS OR THREATS BY
RESPONDENT TO UNDERTAKE RETALIATORY ACTION TOWARD THIS EMPLOYEE. IN
TRUTH, THE REASSIGNMENT WAS MADE WITH THE UNDERSTANDING - AS EXPRESSED
BY COLONEL CARTER - THAT BROGAN WOULD HAVE MORE TIME TO DEVOTE TO UNION
BUSINESS DURING HER WORKING DAY.
IN SUM, I AM PERSUADED THAT RESPONDENT WAS FACED WITH TAKING SOME
ACTION TOWARD BROGAN BASED, IN PART, ON HER CONSTANT ABSENCES FROM WORK
AND INATTENTION TO DUTY. WHETHER OR NOT SUCH CONDUCT ON BROGAN'S PART
WAS DIRECTLY RESPONSIBLE FOR HER POOR PERFORMANCE MAY BE A SUBJECT OF
ARGUMENT. SUFFICE IT TO SAY THAT SUCH EXCESSIVE ABSENCES AND TIME SPENT
ON PHONE CALLS, ALBEIT DEVOTED TO UNION BUSINESS, DOES NOT INSULATE HER
FROM ACTION TAKEN BY THE EMPLOYER TO CORRECT HER ABUSES.
NOTWITHSTANDING THE ZEALOUS EFFORTS DEVOTED TO UNION AFFAIRS BY AN
EMPLOYEE, THE LATTER MUST OBEY RULES AND REQUIREMENTS PERTAINING TO
EMPLOYMENT. FAILING TO DO SO WILL SUBJECT SUCH EMPLOYEE ITS DISCIPLINE
OR OTHER ACTION BY THE EMPLOYER. SEE NLRB VS. HUBER & HUBER MOTOR
EXPRESS 36 LRRM 2241. ACCORDINGLY, AND SINCE RESPONDENT TOOK ACTION
TOWARD BROGAN WHICH I DEEM NOT DISCRIMINATORY UNDER THE ORDER, I
CONCLUDE IT HAD NOT VIOLATED SECTION 19(A)(2) THEREOF.
HAVING FOUND THAT RESPONDENT HAS NOT ENGAGED IN CONDUCT VIOLATIVE OF
SECTIONS 19(A)(1), (2), (4), AND (6) OF THE ORDER, I RECOMMEND THAT THE
COMPLAINT HEREIN BE DISMISSED IN ITS ENTIRETY.
DATED: MARCH 18, 1975
WASHINGTON, D.C.
/1/ NO EVIDENCE WAS ADDUCED TO SUPPORT THIS SECOND ALLEGATION AND NO
FINDINGS ARE MADE IN REGARD THERETO.
/2/ CASE NOS. 72-4658 AND 4745 WERE CONSOLIDATED BY AN ORDER ISSUED
ON OCTOBER 11, 1974.
/3/ APART FROM THE FACT THAT I COULD FIND NO MERIT TO ALLEGED
VIOLATIONS BY RESPONDENT OF 19(A)(2) AND (4), I DO NOT FEEL OBLIGED TO
GO BEHIND THE ACTIONS TAKEN IN RESPECT TO THE AMENDED COMPLAINT.
FURTHER, NO MOTION WAS MADE BY COMPLAINANT AT THE HEARING IN 72-4658 TO
AMEND THE COMPLAINT AND REALLEGE VIOLATIONS OF SAID SECTIONS.
/4/ ALTHOUGH 19(A)(6) IS ALLEGED IN THE COMPLAINT IN 72-4658, THERE
WERE NO FACTS RECITED THEREIN TO SUPPORT SUCH ALLEGATION. FURTHER, THE
THRUST OF SAID COMPLAINT WERE STATEMENTS MADE BY COLONEL CALVERT ALLEGED
TO BE INTERFERENCE AND RESTRAINT OF EMPLOYEES' RIGHTS UNDER THE ORDER.
THE CONTENTION THAT RESPONDENT REFUSED TO CONSULT AND CONFER WAS NOT THE
SUBJECT OF INVESTIGATION, NOR WAS IT LITIGATED AT THE HEARING. ALTHOUGH
IT APPEARS, INFRA, THAT RESPONDENT DID NOT DISCUSS THE IMPACT OF THE
REASSIGNMENT WITH UNION OFFICIALS, I DO NOT CONSIDER THE 19(A)(6) ISSUE
IS PROPERLY BEFORE ME FOR DETERMINATION.
/5/ THE PARTIES STIPULATED THAT NONE OF THE EMPLOYEES PRESENT WERE
MEMBERS OF THE BARGAINING UNIT REPRESENTED BY COMPLAINANT UNION.
/6/ THESE FINDINGS ARE BASED ON THE COMBINED AND CREDITED TESTIMONIES
OF JOHNS, COLE, AND BROGAN. CALVERT ADMITTED ASKING AT THE MEETING
WHETHER AN ARBITRATOR COULD BE USED TO TAKE CASE OF THESE CHARGES OR
COMPLAINTS, BUT HE DENIED THE OTHER STATEMENTS, SUPRA, ATTRIBUTED TO
HIM.
/7/ CALVERT'S DENIAL THAT HE MADE A STATEMENT TO THE EFFECT HE HAD
SUCH RECORDS OF BROGAN'S ACTIVITIES IS NOT CREDITED.
/8/ COMPLAINANT'S EXHIBIT 7.
/9/ RESPONDENT'S EXHIBIT 7.
/10/ RESPONDENT'S EXHIBIT 8.
/11/ TO THE EXTENT THAT BROGAN FAILED TO DENY THE SPECIFIC INSTANCES
OF HER NEGLECT OR POOR PERFORMANCE, AS TESTIFIED TO BY MATTISON, GERKEN,
AND PREM, HER SUPERVISORS - THEIR TESTIMONIES ARE CREDITED IN THAT
REGARD.
/12/ RESPONDENT'S EXHIBIT 10.
/13/ COMPLAINANT'S EXHIBITS 8(A) THRU (C)
/14/ COMPLAINANT'S EXHIBIT 10.
/15/ INASMUCH AS I HAVE FOUND THAT THIS WAS A REASON FOR BROGAN'S
TRANSFER, IT IS ONLY ESSENTIAL TO DETERMINE WHETHER HER ABSENCES FOR
UNION ACTIVITIES PROTECTED HER FROM THE CHANGE IN HER POSITION. IF
PROTECTED, A VIOLATION HAS OCCURRED; IF UNPROTECTED, RESPONDENT'S
ACTION EXCULPATES IT FROM LIABILITY AND IT WOULD REASSIGN HER AT WILL.
THUS, I FIND IT UNNECESSARY TO CONSIDER BROGAN'S APTITUDE TO PERFORM THE
WORK OF A CONTRACT SPECIALIST, AND PARTICULARLY AS A TRCO SINCE SUCH
EVIDENCE DOES NOT MEET THE AFORESAID ISSUE.
5 A/SLMR 536; P. 475; CASE NO. 22-5976(CO); JULY 29, 1975.
INTERNAL REVENUE SERVICE
A/SLMR NO. 536
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
INTERNAL REVENUE SERVICE (IRS) ALLEGING THAT THE RESPONDENT, NATIONAL
TREASURY EMPLOYEES UNION (NTEU), VIOLATED SECTION 19(B)(4) OF THE ORDER
BY PICKETING THE COMPLAINANT'S SERVICE CENTER AT COVINGTON, KENTUCKY.
THE NTEU ADMITTED THAT IT HAD ENGAGED IN THE PICKETING AS ALLEGED, BUT
CONTENDED, AMONG OTHER THINGS, THAT THE PICKETING WAS INFORMATIONAL IN
NATURE AND AS SUCH WAS NOT PRESCRIBED BY SECTION 19(B)(4) OF THE
EXECUTIVE ORDER.
UNDER THE EXPEDITED PROCEDURES PROVIDED FOR IN SECTION 203.75(B) OF
THE ASSISTANT SECRETARY'S REGULATIONS, A PRELIMINARY HEARING WAS HELD,
AND ON THE BASIS OF THAT HEARING IT WAS FOUND THAT THERE WAS REASONABLE
CAUSE TO BELIEVE THAT NTEU HAD AND WAS VIOLATING SECTION 19(B)(4) OF THE
ORDER, AND THE NTEU WAS ORDERED TO CEASE AND DESIST FROM SUCH CONDUCT
PENDING DISPOSITION OF THE COMPLAINT. SUBSEQUENT THERETO, A HEARING WAS
CONDUCTED BY THE CHIEF ADMINISTRATIVE LAW JUDGE PURSUANT TO SECTION
203.7(B)(6) OF THE REGULATIONS.
THE CHIEF ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE PICKETING
ENGAGED IN THE NTEU WAS INFORMATIONAL IN CHARACTER, BUT THAT THE
LANGUAGE OF SECTION 19(B)(4) OF THE ORDER WAS CLEAR AND UNAMBIGUOUS AND
PROHIBITED ALL PICKETING IN A LABOR-MANAGEMENT DISPUTE.
THE ASSISTANT SECRETARY AGREED WITH THE CHIEF ADMINISTRATIVE LAW
JUDGE'S CONCLUSION THAT ALL PICKETING IN A LABOR-MANAGEMENT DISPUTE IS
VIOLATIVE OF SECTION 19(B)(4) OF THE ORDER. HAVING FOUND THAT THE NTEU
VIOLATED SECTION 19(B)(4) OF THE ORDER BY ITS IMPROPER PICKETING OF THE
IRS'S INSTALLATION, AND THAT SUCH CONDUCT REQUIRED THE ISSUANCE OF A
REMEDIAL ORDER, THE ASSISTANT SECRETARY ISSUED SUCH AN ORDER DIRECTED TO
THE NTEU'S OFFICERS, AGENTS, AND REPRESENTATIVES AND FURTHER ORDERED THE
POSTING OF AN APPROPRIATE NOTICE TO ALL MEMBERS OF THE NTEU AND TO ALL
EMPLOYEES OF THE INTERNAL REVENUE SERVICE.
INTERNAL REVENUE SERVICE
AND
NATIONAL TREASURY EMPLOYEES UNION
AND
CASE NO. 22-5976(CO)
ASSISTANT REGIONAL DIRECTOR
LABOR-MANAGEMENT SERVICES
ADMINISTRATION, UNITED STATES
DEPARTMENT OF LABOR
ON JULY 7, 1975, CHIEF ADMINISTRATIVE LAW JUDGE H. STEPHEN GORDON
ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR
LABOR PRACTICES AND RECOMMENDING THAT IT TAKE CERTAIN AFFIRMATIVE
ACTIONS AS SET FORTH IN THE ATTACHED CHIEF ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER. THEREAFTER, THE COMPLAINANT AND THE
RESPONDENT FILED EXCEPTIONS AND SUPPORTING BRIEFS WITH RESPECT TO THE
CHIEF ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER, AND THE
COMPLAINANT FILED A MOTION TO DISREGARD THE RESPONDENT'S EXCEPTIONS.
/1/
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE CHIEF
ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS THAT NO
PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON
CONSIDERATION OF THE CHIEF ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING
THE EXCEPTIONS AND SUPPORTING BRIEFS FILED BY THE COMPLAINANT AND THE
RESPONDENT, I HEREBY ADOPT THE CHIEF ADMINISTRATIVE LAW JUDGE'S
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS EXCEPT AS INDICATED HEREIN.
THE COMPLAINT, FILED BY THE INTERNAL REVENUE SERVICE (COMPLAINANT),
ALLEGED THAT THE NATIONAL TREASURY EMPLOYEES UNION (RESPONDENT) VIOLATED
SECTION 19(B)(4) OF EXECUTIVE ORDER 11491, AS AMENDED, BY ILLEGALLY
PICKETING THE COMPLAINANT'S SERVICE CENTER AT COVINGTON, KENTUCKY.
PURSUANT TO SECTION 203.7(B)(1) OF THE ASSISTANT SECRETARY'S
REGULATIONS, AS A PRELIMINARY HEARING WAS CONDUCTED BEFORE
ADMINISTRATIVE LAW JUDGE JOHN H. FENTON FOR THE PURPOSE OF DETERMINING
WHETHER THERE EXISTED REASONABLE CAUSE TO BELIEVE THAT A VIOLATION OF
SECTION 19(B)(4) OF THE EXECUTIVE ORDER HAD, IN FACT, OCCURRED. AS A
RESULT OF THAT HEARING, ADMINISTRATIVE LAW JUDGE FENTON FOUND REASONABLE
CAUSE TO BELIEVE THAT THE RESPONDENT HAD AND WAS VIOLATING SECTION
19(B)(4) OF THE EXECUTIVE ORDER AND HE ORDERED THE RESPONDENT TO CEASE
AND DESIST FROM SUCH CONDUCT PENDING DISPOSITION OF THE COMPLAINT.
PURSUANT TO SECTION 203.7(B)(6) OF THE REGULATIONS A HEARING WAS THEN
HELD ON THE COMPLAINT BEFORE THE CHIEF ADMINISTRATIVE LAW JUDGE.
AT THE HEARING, AND IN ITS EXCEPTIONS, THE RESPONDENT ADMITTED THAT
ITS OFFICERS AND AGENTS HAD ENGAGED IN PICKETING, THAT IT WAS
RESPONSIBLE FOR SUCH PICKETING AND THAT A LABOR-MANAGEMENT DISPUTE
EXISTED BETWEEN THE COMPLAINANT AND THE RESPONDENT. HOWEVER THE
RESPONDENT CONTENDS, AMONG OTHER THINGS, THAT SECTION 19(B)(4) OF THE
EXECUTIVE ORDER /2/ DOES NOT PROHIBIT PICKETING WHICH IS PURELY
INFORMATIONAL IN CHARACTER. THE COMPLAINANT AT THE HEARING, AND IN ITS
EXCEPTIONS, CONTENDS THAT THE CONCEPT OF INFORMATIONAL PICKETING AS
DEFINED IN THE PRIVATE SECTOR HAS NO APPLICATION IN THE FEDERAL SECTOR
AND PARTICULARLY DOES NOT APPLY TO THE PICKETING ENGAGED IN BY THE
RESPONDENT IN THE INSTANT CASE, AND THAT ALL PICKETING, HOWEVER
DESIGNATED, IS EXPLICITLY PROHIBITED BY SECTION 19(B)(4) OF THE ORDER.
THE CHIEF ADMINISTRATIVE LAW JUDGE FOUND THAT THE PICKETING CONDUCTED
BY THE RESPONDENT WAS "INFORMATIONAL" IN CHARACTER BUT THAT IT WAS
VIOLATIVE OF SECTION 19(B)(4) OF THE ORDER. IN THIS REGARD HE
CONCLUDED, ON THE BASIS OF THE EXPRESS WORDING OF SECTION 19(B)(4) AND
HIS EXAMINATION OF THE STUDY COMMITTEE REPORT AND RECOMMENDATIONS OF
AUGUST 1969, THAT THE LANGUAGE OF SECTION 19(B)(4) IS SO CLEAR AND
UNAMBIGUOUS THAT ONLY A LITERAL INTERPRETATION IS JUSTIFIED, I.E., THAT
ALL PICKETING IN A LABOR-MANAGEMENT DISPUTE, INCLUDING INFORMATIONAL
PICKETING, IS PROHIBITED BY THE ORDER.
I CONCUR WITH THE CONCLUSION OF THE CHIEF ADMINISTRATIVE LAW JUDGE
THAT SECTION 19(B)(4) OF THE ORDER PROHIBITS ALL PICKETING IN A
LABOR-MANAGEMENT DISPUTE IN THE FEDERAL SECTOR.
HAVING FOUND THAT THE RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTION 19(B)(4) OF EXECUTIVE ORDER 11491, AS AMENDED, I
SHALL ORDER THE RESPONDENT TO CEASE AND DESIST THEREFROM AND TAKE
CERTAIN SPECIFIC AFFIRMATIVE ACTIONS, AS SET FORTH BELOW, DESIGNED TO
EFFECTUATE THE POLICIES OF THE ORDER.
PURSUANT TO SECTION 6(B) OF THE EXECUTIVE ORDER 11491, AS AMENDED,
AND SECTION 203.26(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE NATIONAL
TREASURY EMPLOYEES UNION, ITS OFFICERS, AGENTS, AND REPRESENTATIVES
SHALL:
1. CEASE AND DESIST FROM:
(A) PICKETING THE INTERNAL REVENUE SERVICE, OR ANY OTHER AGENCY OF
THE GOVERNMENT OF THE UNITED STATES, IN A LABOR-MANAGEMENT DISPUTE, OR
FROM ASSISTING OR PARTICIPATING IN ANY SUCH PICKETING.
(B) CONDONING ANY SUCH ACTIVITY BY FAILURE TO TAKE EFFECTIVE
AFFIRMATIVE ACTION TO PREVENT OR STOP IT.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) POST AT ITS NATIONAL AND LOCAL BUSINESS OFFICES, AT ITS NORMAL
MEETING PLACES, AND AT ALL OTHER PLACES WHERE NOTICES TO MEMBERS AND TO
EMPLOYEES OF THE INTERNAL REVENUE SERVICE ARE CUSTOMARILY POSTED,
INCLUDING SPACE ON BULLETIN BOARDS MADE AVAILABLE TO THE NATIONAL
TREASURY EMPLOYEES UNION BY AGREEMENT OR OTHERWISE BY THE INTERNAL
REVENUE SERVICE, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON
FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH FORMS THEY SHALL BE
SIGNED BY THE PRESIDENT OF THE NATIONAL TREASURY EMPLOYEES UNION AND
SHALL BE POSTED BY THE NATIONAL TREASURY EMPLOYEES UNION FOR A PERIOD OF
60 CONSECUTIVE DAYS IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE
NOTICES TO MEMBERS AND TO EMPLOYEES OF THE INTERNAL REVENUE SERVICE ARE
CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN BY THE NATIONAL
TREASURY EMPLOYEES UNION TO INSURE THAT SAID NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) SUBMIT SIGNED COPIES OF SAID NOTICE WITHIN 14 DAYS OF THE DATE OF
THIS DECISION AND ORDER TO THE INTERNAL REVENUE SERVICE FOR POSTING IN
CONSPICUOUS PLACES WHERE IT CUSTOMARILY POSTS INFORMATION TO ITS
EMPLOYEES. THE INTERNAL REVENUE SERVICE SHALL MAINTAIN SUCH NOTICES FOR
A PERIOD OF 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING.
(C) PURSUANT TO SECTION 203.27 OF THE REGULATIONS NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
JULY 29, 1975
/1/ THE COMPLAINANT'S MOTION TO DISREGARD THE RESPONDENT'S EXCEPTIONS
IS HEREBY DENIED. MOREOVER, IT WAS NOTED THAT SAID MOTION WAS FILED
ERRONEOUSLY PURSUANT TO SECTION 204.82 OF THE REGULATIONS, INSTEAD OF
SECTION 203.19(A).
/2/ SECTION 19(B)(4) PROVIDES, "(B) A LABOR ORGANIZATION SHALL NOT --
(4) CALL OR ENGAGE IN A STRIKE, WORK STOPPAGE, OR SLOWDOWN; PICKET AN
AGENCY IN A LABOR-MANAGEMENT DISPUTE; OR CONDONE ANY SUCH ACTIVITY BY
FAILING TO TAKE AFFIRMATIVE ACTION TO PREVENT OR STOP IT;"
WE WILL NOT PICKET THE INTERNAL REVENUE SERVICE, OR ANY OTHER AGENCY
OF THE GOVERNMENT OF THE UNITED STATES, IN A LABOR-MANAGEMENT DISPUTE.
WE WILL NOT ASSIST OR PARTICIPATE IN PICKETING THE INTERNAL REVENUE
SERVICE, OR ANY OTHER AGENCY OF THE GOVERNMENT OF THE UNITED STATES, IN
A LABOR-MANAGEMENT DISPUTE.
WE WILL NOT CONDONE ANY OF THE ABOVE-MENTIONED ACTIVITY AND WE WILL
TAKE AFFIRMATIVE ACTION TO PREVENT OR STOP IT IN THE EVENT IT REOCCURS.
DATED . . . BY . . . (PRESIDENT)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR WHOSE ADDRESS IS: 14120 GATEWAY BUILDING, 3535 MARKET STREET,
PHILADELPHIA, PENNSYLVANIA 19104.
IN THE MATTER OF
INTERNAL REVENUE SERVICE
AND
NATIONAL TREASURY EMPLOYEES UNION,
AND
ACTING ASSISTANT REGIONAL DIRECTOR
EUGENE M. LEVINE, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, V.S.
DEPARTMENT OF LABOR,
THIS MATTER COMES BEFORE ME UPON A NOTICE OF PRELIMINARY HEARING
ISSUED BY THE ACTING ASSISTANT REGIONAL DIRECTOR ON JUNE 17, 1975,
PURSUANT TO THE PROVISIONS OF EXECUTIVE ORDER 11491 AND THE IMPLEMENTING
REGULATIONS FOUND AT 29 CFR 203.7(B). THE COMPLAINT, FILED BY IRS ON
JUNE 13, ALLEGED A VIOLATION OF SECTION 19(B)(4) OF THE EXECUTIVE ORDER,
WHICH PROVIDES THAT A LABOR ORGANIZATION SHALL NOT " . . . PICKET AN
AGENCY IN A LABOR-MANAGEMENT DISPUTE; OR CONDONE ANY SUCH ACTIVITY BY
FAILING TO TAKE AFFIRMATIVE ACTION TO PREVENT OR STOP IT."
AT THE HEARING CONDUCTED ON JUNE 18 THE PARTIES ENTERED INTO A
STIPULATION RECEIVED INTO EVIDENCE AS JOINT EXHIBIT 1. THAT STIPULATION
ESTABLISHES THE FOLLOWING.
(1) A LABOR-MANAGEMENT DISPUTE EXISTS BETWEEN IRS AND NTEU, AN
IMPASSE HAVING BEEN REACHED IN NEGOTIATION OF A COLLECTIVE BARGAINING
AGREEMENT.
(2) PICKETING OCCURRED ON MAY 30 AT THE IRS SERVICE CENTER IN
COVINGTON, KENTUCKY AND ON JUNE 12 AT THE CENTER IN BROOKHAVEN, NEW
YORK, IN WHICH OFFICERS AND AGENTS OF NTEU PARTICIPATED, AND NTEU PLANS
TO ENGAGE IN FURTHER PICKETING AT IRS NATIONAL HEADQUARTERS DURING THE
WEEK OF JUNE 23.
(3) THE PICKET SIGNS RELATED TO THE LABOR-MANAGEMENT DISPUTE, AND THE
PICKETING WAS FOR THE PURPOSE OF INFORMING THE PUBLIC AND IRS EMPLOYEES
OF THE NTEU'S POSITION REGARDING THAT DISPUTE.
(4) THE PICKETING WAS PEACEFUL, HAD NO "SIGNAL" EFFECT ON THOSE
WISHING TO ENTER THE CENTERS AND DID NOT IN ANY MANNER INTERFERE WITH
THE OPERATIONS OF THE CENTERS.
THE ACTING ASSISTANT REGIONAL DIRECTOR HAS THEREFORE CARRIED THE
BURDEN OF ESTABLISHING THAT THERE IS REASONABLE CAUSE TO BELIEVE THAT A
VIOLATION OF SECTION 19(B)(4) IS OCCURRING, UNLESS THERE IS MERIT TO
NTEU'S DEFENSE THAT THAT SECTION WAS INTENDED TO PROHIBIT PICKETING
WHICH TAKES PLACE IN CONJUNCTION WITH OTHER UNLAWFUL CONDUCT, AND NOT TO
BAN PICKETING WHICH IS PURELY INFORMATIONAL IN PURPOSE AND EFFECT.
THIS DEFENSE RESTS ESSENTIALLY ON TWO PROPOSITIONS, GIVEN THE RATHER
DIFFICULT BACKDROP OF AN EXECUTIVE RODER WHICH BY ITS LITERAL TERMS BANS
PICKETING WITHOUT QUALIFICATION, DESPITE THE FACT THAT ITS PROVISIONS IN
MANY RESPECTS PARALLEL THOSE OF THE NLRA, UNDER WHICH LAW UNIONS IN THE
PRIVATE SECTOR MAY, IN LIMITED CIRCUMSTANCES, ENGAGE IN INFORMATIONAL
PICKETING.
THE FIRST PROPOSITION IS THAT SUCH PICKETING HAS LONG BEEN RECOGNIZED
AS A FORM OF FREE SPEECH PROTECTED BY THE U.S. CONSTITUTION, AND THAT I
AM OBLIGED TO CONSTRUE THE LANGUAGE OF THE ORDER SO AS TO AVOID A
COLLISION WITH THE CONSTITUTION. WHILE I AM AWARE THAT COURTS MUST
CONSTRUE A STATUTE, OR ANY EXECUTIVE ORDER, IF CONSISTENT WITH THE WILL
OF CONGRESS OR THE EXECUTIVE, SO AS TO COMPORT WITH CONSTITUTIONAL
LIMITATIONS, I AM AWARE OF NO CASES WHICH COMMIT SUCH POWER TO AN
ADMINISTRATIVE AGENCY OR JUDGE. ON THE CONTRARY, I THINK IT IS CLEAR
THAT AN ADMINISTRATIVE BODY CREATED TO CARRY OUT THE DECLARED POLICY OF
THE CONGRESS OR THE EXECUTIVE MUST ASSUME THE CONSTITUTIONALITY OF THE
LAW WHICH IT IMPLEMENTS.
THE SECOND PROPOSITION ADVANCED BY NTEU IS THAT I AM BOUND TO FOLLOW
THE LAW LAID DOWN IN UNITED FEDERATION OF POSTAL CLERKS V. BLOUNT 325
F.SUPP. 879 (D.D.C. 1971). IN RELEVANT RESPECT THAT THREE-JUDGE
DISTRICT COURT WAS FACED WITH THE QUESTION WHETHER THE LANGUAGE OF
CERTAIN STATUTES SUBJECTING ANY FEDERAL EMPLOYEES WHO "PARTICIPATES IN A
STRIKE" TO LOSS OF EMPLOYMENT, FINES AND IMPRISONMENT, WAS OVERLY BROAD
AND THUS UNCONSTITUTIONAL. AFTER OBSERVING THAT THE GOVERNMENT AT ORAL
ARGUMENT HAD REPRESENTED THAT IT INTERPRETED "PARTICIPATE" TO MEAN
"STRIKING", OR THE REFUSAL IN CONCERT WITH OTHERS TO PROVIDE SERVICES TO
ONE'S EMPLOYER, THE COURT ADOPTED THAT CONSTRUCTION, NOTING THAT IT
"WILL EXCLUDE THE FIRST AMENDMENT PROBLEMS RAISED BY THE PLAINTIFF IN
THAT IT REMOVED FROM THE STRICT REACH OF THESE STATUTES AND OTHER
PROVISIONS SUCH CONDUCT AS SPEECH, . . . AND INFORMATIONAL PICKETING,
EVEN THOUGH THESE ACTIVITIES MAY TAKE PLACE IN CONCERT DURING A STRIKE
BY OTHERS." LATER THE COURT STATED THAT SUCH A CONSTRUCTION "ACHIEVES
THE OBJECTIVE OF CONGRESS AND, IN DEFINING THE TYPE OF CONDUCT WHICH IS
BEYOND THE REACH OF THE STATUTE, SAVES IT FROM THE RISK OF VAGUENESS AND
OVERBREADTH."
NTEU URGES THAT THIS CONSTITUTES A HOLDING THAT INFORMATIONAL
PICKETING IS A FORM OF FREE SPEECH PROTECTED BY THE FIRST AMENDMENT. I
DO NOT AGREE THAT THE COURT SQUARELY HELD THAT INFORMATIONAL PICKETING
BY GOVERNMENT UNIONS IS PROTECTED. RATHER I READ IT ONLY AS A STATEMENT
THAT THE NARROW CONSTRUCTION OFFERED BY THE GOVERNMENT AND ADOPTED BY
THE COURT SERVED TO AVOID CONSTITUTIONAL PROBLEMS. WE ARE NOT TOLD HOW
THE COURT WOULD HAVE RESOLVED THOSE PROBLEMS ABSENT THE NARROW
CONSTRUCTION OFFERED BY THE GOVERNMENT. ACCORDINGLY, I FIND NO COURT
AUTHORITY FOR THE PROPOSITION THAT PICKETING BY GOVERNMENT UNIONS WHICH
IS SOLELY INFORMATIONAL IN CHARACTER IS BEYOND PROSCRIPTION.
IT IS THEREFORE NECESSARY FOR ME TO CONSTRUE THE LANGUAGE OF SECTION
19(B)(4) WITHIN THE FOUR CORNERS OF THE EXECUTIVE ORDER. AS ALREADY
NOTED, THAT SECTION'S LANGUAGE IS A FLAT, UNQUALIFIED PROHIBITION OF
PICKETING. FURTHERMORE, THE STUDY COMMITTEE REPORT AND RECOMMENDATIONS
OF AUGUST 1969, WHICH LED TO ISSUANCE OF THE ORDER, SUGGESTED A CHANGE
IN THE PRIOR BAN ON "ANY STRIKE . . . OR RELATED PICKETING ENGAGED IN AS
A SUBSTITUTE FOR ANY SUCH STRIKE" SO AS TO "STATE CLEARLY AND SIMPLY ITS
INTENDED MEANING, WHICH IS TO PROHIBIT THE USE OF PICKETING, DIRECTED AT
ANY EMPLOYING AGENCY BY A LABOR ORGANIZATION IN A LABOR-MANAGEMENT
DISPUTE." THESE ARE RATHER PLAIN WORDS.
I AM THEREFORE CONSTRAINED TO FIND THAT THERE EXISTS REASONABLE CAUSE
TO BELIEVE THAT NTEU HAS PICKETED AND CURRENTLY PLANS TO VIOLATE IRS, IN
CONNECTION WITH A LABOR-MANAGEMENT DISPUTE, IN VIOLATION OF SECTION
19(B)(4) OF EXECUTIVE ORDER 11491, AND THAT THERE HAS BEEN NO
SATISFACTORY WRITTEN OFFER OF SETTLEMENT BY NTEU WHICH PROVIDES FOR A
CESSATION OF SUCH CONDUCT.
IN THE CIRCUMSTANCES, AND BY VIRTUE OF THE AUTHORITY VESTED IN ME BY
29 DFR 203.7(B)(4) IT IS ORDERED THAT RESPONDENT CEASE AND DESIST,
PENDING DISPOSITION OF THE COMPLAINT, FROM PICKETING IRS IN A
LABOR-MANAGEMENT DISPUTE, AND THAT IT SHALL IMMEDIATELY TAKE AFFIRMATIVE
ACTION TO PREVENT AND STOP ANY SUCH PICKETING OF IRS BY NOTIFYING ALL
OFFICERS AND AGENTS OF NTEU AND ITS AFFILIATES AND CHAPTERS THAT ANY
SUCH PICKETING OR PLANS FOR SUCH PICKETING SHALL IMMEDIATELY CEASE.
DATED: JUNE 197, 1975
WASHINGTON, D.C.
IN THE MATTER OF
INTERNAL REVENUE SERVICE,
AND
NATIONAL TREASURY EMPLOYEES UNION,
AND
ASSISTANT REGIONAL DIRECTOR,
LABOR-MANAGEMENT SERVICES
ADMINISTRATION,
UNITED STATES DEPARTMENT OF LABOR,
ROBERT TOBIAS
GENERAL COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
SUITE 1101 K STREET, N.W.
WASHINGTON, D.C. 20006
G. JERRY SHAW
BRANCH CHIEF
INTERNAL REVENUE SERVICE
ROOM 4109, 1111 CONSTITUTION AVE., N.W.
WASHINGTON, D.C. 20224
HOWARD K. AGRAN, ESQ.
ASSISTANT REGIONAL DIRECTOR
LOUIS WEINER, ESQ.
REGIONAL SOLICITOR
U.S. DEPARTMENT OF LABOR
BEFORE: H. STEPHAN GORDON
THIS MATTER COMES BEFORE ME UPON A NOTICE OF EXPEDITED HEARING ON
COMPLAINT ISSUED ON JUNE 20, 1975 BY EUGENE M. LEVINE, ACTING ASSISTANT
REGIONAL DIRECTOR, PHILADELPHIA REGION OF THE LABOR-MANAGEMENT SERVICES
ADMINISTRATION. THE COMPLAINT, FILED BY THE INTERNAL REVENUE SERVICE
(HEREINAFTER REFERRED TO AS THE COMPLAINANT) ON JUNE 13, 1975, ALLEGES
THAT THE NATIONAL TREASURY EMPLOYEES UNION (HEREINAFTER REFERRED TO AS
THE RESPONDENT) ILLEGALLY PICKETED COMPLAINANT'S SERVICE CENTER AT
COVINGTON, KENTUCKY IN VIOLATION OF SECTION 19(B)(4) OF EXECUTIVE ORDER
11491, AS AMENDED (HEREINAFTER REFERRED TO AS THE EXECUTIVE ORDER).
PURSUANT TO THE PROVISIONS OF THE EXECUTIVE ORDER AND THE
IMPLEMENTING REGULATIONS, 29 CFR 203.7(B)(1), THE ASSISTANT REGIONAL
DIRECTOR ISSUED A NOTICE OF PRELIMINARY HEARING ON THE COMPLAINT ON JUNE
17, 1975. THE PRELIMINARY HEARING WAS CONDUCTED ON JUNE 18, 1975,
BEFORE ADMINISTRATIVE LAW JUDGE JOHN H. FENTON FOR THE PURPOSE OF
DETERMINING WHETHER THERE EXISTED REASONABLE CAUSE TO BELIEVE THAT A
VIOLATION OF SECTION 19(B)(4) OF THE EXECUTIVE ORDER HAD IN FACT
OCCURRED. ON THE BASIS OF THAT PROCEEDING, JUDGE FENTON, ON JUNE 19,
1975, FOUND THAT REASONABLE CAUSE TO BELIEVE THAT RESPONDENT HAD AND WAS
VIOLATING SECTION 19(B)(4) OF THE EXECUTIVE ORDER DID IN FACT EXIST AND
ORDERED RESPONDENT TO CEASE AND DESIST FROM SUCH CONDUCT PENDING
DISPOSITION OF THE COMPLAINT. IT IS THIS DISPOSITION OF THE COMPLAINT
WHICH, PURSUANT TO SECTION 203.7(B)(6), IS PRESENTLY BEFORE ME.
AT THE EXPEDITED HEARING CONDUCTED ON JUNE 23, 1975, ALL PARTIES WERE
REPRESENTED BY COUNSEL AND WERE GIVEN FULL OPPORTUNITY TO PRESENT,
EXAMINE, AND CROSS EXAMINE WITNESSES AND TO PRESENT EVIDENCE AND
ARGUMENTS IN SUPPORT OF THEIR RESPECTIVE POSITIONS. AT THE HEARING, THE
PARTIES STIPULATED, AND IT WAS SO ORDERED, THAT THE ENTIRE RECORD OF THE
PRELIMINARY HEARING BEFORE JUDGE FENTON SHALL BECOME PART OF THE RECORD
IN THE INSTANT PROCEEDING.
SUBSEQUENT TO THE HEARING ALL PARTIES SUBMITTED BRIEFS WHICH I FOUND
EXCEPTIONALLY WELL PREPARED, WELL REASONED, AND HELPFUL IN MY
DELIBERATIONS.
ON THE BASIS OF THE ENTIRE RECORD, THE BRIEFS AND MY OBSERVATION OF
THE WITNESSES, I MAKE THE FOLLOWING FINDINGS OF FACTS AND CONCLUSIONS OF
LAW:
1. WHAT WAS THE NATURE OF THE PICKETING?
2. IF THE PICKETING WAS INFORMATIONAL IN CHARACTER, DID RESPONDENT'S
RELATED CONDUCT CHANGE THE NATURE OF THE PICKETING?
3. IS INFORMAL PICKETING ENCOMPASSED BY THE PROHIBITIONS OF SECTION
19(B)(4) OF THE EXECUTIVE ORDER?
THE FACTS IN THIS CASE ARE NOT IN DISPUTE AND, INDEED, HAVE BEEN
STIPULATED BY THE PARTIES IN THE PRELIMINARY HEARING AS WELL AS IN THIS
HEARING. ON THE BASIS OF THIS STIPULATION, AS WELL AS ON THE BASIS OF
THE ENTIRE RECORD, I FIND THAT:
(1) A LABOR-MANAGEMENT DISPUTE EXISTED AND CONTINUES TO EXIST BETWEEN
COMPLAINANT AND RESPONDENT;
(2) SUCH LABOR-MANAGEMENT DISPUTE STEMS FROM AN IMPASSE HAVING BEEN
REACHED IN THE COURSE OF NEGOTIATION OF A COLLECTIVE BARGAINING
AGREEMENT;
(3) PICKETING IN CONJUNCTION WITH SUCH LABOR-MANAGEMENT DISPUTE
OCCURRED ON MAY 30, 1975 AT COMPLAINANT'S SERVICE CENTER IN COVINGTON,
KENTUCKY AND ON JUNE 12, 1975 AT THE SERVICE CENTER IN BROOKHAVEN NEW
YORK;
(4) OFFICERS AND AGENTS OF RESPONDENT PARTICIPATED IN THE PICKETING;
(5) RESPONDENT ASSUMES FULL RESPONSIBILITY FOR AN IN FACT IS
RESPONSIBLE FOR SUCH PICKETING;
(6) THE PICKETING WAS PEACEFUL AND DID NOT INTERFERE WITH
COMPLAINANT'S OPERATION;
(7) THE PICKETING HAD NO "SIGNAL" EFFECT ON EITHER EMPLOYEES OR
MEMBERS OF THE PUBLIC WHO WISHED TO ENTER THE CENTERS;
(8) THE PICKET SIGNS RELATED TO THE LABOR-MANAGEMENT DISPUTE AND WERE
NEITHER INFLAMMATORY NOR DEROGATORY IN NATURE; AND
(9) THE PICKETING WAS CONDUCTED FOR THE PURPOSE OF INFORMING THE
PUBLIC AND COMPLAINANT'S EMPLOYEES OF RESPONDENT'S POSITION REGARDING
THE LABOR-MANAGEMENT DISPUTE-- THAT, IN THE PARLANCE OF LABOR-MANAGEMENT
RELATIONS, IT DID, IN FACT, CONSTITUTE "INFORMATIONAL PICKETING" AS THAT
TERM IS ORDINARILY USED IN RELEVANT DECISIONS BY THE COURTS AND THE
NATIONAL LABOR RELATIONS BOARD.
WITH RESPECT TO MY FINDINGS ENUMERATED IN PARAGRAPH 6 THROUGH 9,
ABOVE, I HAVE FULLY CONSIDERED THE EVIDENCE AND TESTIMONY OFFERED BY
COMPLAINANT IN THIS PROCEEDING. COMPLAINANT, THROUGH THE TESTIMONY OF
ITS WITNESSES, ATTEMPTED TO PROVE THAT THE INFORMATIONAL CHARACTER AND
PURPOSE OF THE PICKETING WAS CHANGED AND WHATEVER LEGAL PROTECTION SUCH
PICKETING MAY ENJOY WAS LOST BECAUSE: (1) ALL PICKETING IN CONJUNCTION
WITH A LABOR-MANAGEMENT DISPUTE IS COERCIVE IN NATURE; (2) THE PICKET
SIGNS ALLEGEDLY DISPARAGED CERTAIN OF COMPLAINANT'S OFFICIALS; (3) SOME
PICKETING OCCURRED ON COMPLAINANT'S PREMISES; AND (4) THE PICKETING WAS
ACCOMPANIED BY OTHER COERCIVE ACTIONS, NAMELY THE FILING OF AN UNUSUALLY
LARGE NUMBER OF GRIEVANCES BY RESPONDENT'S MEMBERS.
IN SUPPORT OF ITS FIRST CONTENTION, COMPLAINANT INTRODUCED THE
TESTIMONY OF MR. IRVING A. DESROCHES, A LABOR-MANAGEMENT RELATIONS
SPECIALIST FOR COMPLAINANT WHO WAS ALSO COMPLAINANT'S CHIEF NEGOTIATOR
DURING THE COLLECTIVE BARGAINING SESSIONS UNDERLYING THIS DISPUTE. THE
WITNESS, WHO HAS AN EXTENSIVE BACKGROUND IN LABOR-MANAGEMENT RELATIONS
AS A UNION OFFICIAL WAS QUALIFIED AS AN EXPERT IN THE AREA OF LABOR
RELATIONS. THE ESSENCE OF MR. DESROCHES' TESTIMONY WAS THAT ALL
PICKETING IS COERCIVE IN NATURE; THAT ITS ONLY PURPOSE IS TO PUT
PRESSURE ON AN EMPLOYER; THAT HE HAS NEVER ENCOUNTERED A SITUATION
INVOLVING TRUE "INFORMATIONAL PICKETING"; AND THAT HE WOULD FIND IT
"EXTREMELY DIFFICULT TO ARTICULATE" A DISTINCTION BETWEEN PURELY
"INFORMATIONAL PICKETING" AND ANY OTHER TYPE OF PICKETING IN A LABOR
DISPUTE. FROM A PURELY PRAGMATIC POINT OF VIEW, MR. DESROCHES'
CHARACTERIZATION OF PICKETING MAY BE QUITE CORRECT. HOWEVER, AND WITH
DUE REGARD TO THE WITNESS'S CONSIDERABLE BACKGROUND AND EXPERIENCE IN
THE PRACTICAL ASPECTS OF LABOR RELATIONS, I AM BOUND BY A CONSIDERABLE
BODY OF LEGAL PRECEDENTS WHEREIN ADMINISTRATIVE BODIES AND COURTS OF ALL
LEVELS HAVE LABORED TO DELINEATE AND ELUCIDATE THESE VERY DISTINCTIONS
AND TO DEFINE INFORMATIONAL PICKETING. I THEREFORE FIND THAT
"INFORMATIONAL PICKETING" IS, INDEED, A VIABLE CONCEPT IN THE CONTEXT OF
LABOR-MANAGEMENT DISPUTES, AND THAT NOTHING IN MR. DESROCHES' TESTIMONY
AFFECTS OR ALTERS THE PARTIES' ORIGINAL STIPULATION THAT THE PICKETING
WAS "INFORMATIONAL" AS THAT TERM IS USED IN LABOR-MANAGEMENT RELATIONS.
I ALSO DISAGREE WITH COMPLAINANT'S SECOND CONTENTION THAT THE
LANGUAGE OF THE PICKET SIGNS REMOVED FROM THE PICKETING ITS
INFORMATIONAL CHARACTER. COUNSEL FOR COMPLAINANT HIMSELF POINTS OUT IN
HIS VERY EXCELLENT BRIEF THAT IN OLD DOMINION BRANCH NO. 496, NATIONAL
ASSOCIATION OF LETTER CARRIERS, AFL-CIO, ET AL. V. AUSTIN, ET AL., 418
U.S. 264 (1974), THE SUPREME COURT NOTED THAT "WE SEE NOTHING IN THE
EXECUTIVE ORDER WHICH INDICATES THAT IT INTENDED TO RESTRICT IN ANY WAY
THE ROBUST DEBATE WHICH HAS BEEN PROTECTED UNDER THE NLRA." DESPITE
COUNSEL'S CHARACTERIZATION OF THE PICKET SIGNS AS "VICIOUS", I FIND THAT
THE LANGUAGE ON THE PICKET SIGNS WHICH SAID THAT "ALEXANDER AIN'T SO
GREAT" AND "IRS NEGOTIATORS CAN STAND PAT, SERVICE CENTER EMPLOYEES
CAN'T" FALLS WELL WITHIN ACCEPTED LIMITS AND STANDARDS OF LANGUAGE
EMPLOYED IN A LABOR DISPUTE. ACCEPTING COMPLAINANT'S EXPLANATION AS
CORRECT THAT "ALEXANDER" REFERS TO COMMISSIONER DONALD C. ALEXANDER, AND
EVEN ACCEPTING THE RATHER SUBTLE INFERENCE THAT THE WORK "PAT" REFERS TO
MR. PATRICK J. RUTTLE, DIRECTOR OF THE COVINGTON SERVICE CENTER, I DO
NOT ACCEPT COMPLAINANT'S CHARACTERIZATION OF SUCH PICKET SIGN LANGUAGE
AS BEING "VICIOUS", "SPITEFUL" AND "VITUPERATIVE" NOR ITS CONTENTION
THAT SUCH LANGUAGE IS SO DISPARAGING OF COMPLAINANT THAT A PURPOSE OTHER
THAN INFORMATIONAL SHOULD BE ASCRIBED TO THE PICKETING.
REGARDING THE CONTENTION THAT SOME PICKETING OCCURRED ON
COMPLAINANT'S PREMISES, MR. PATRICK J. RUTTLE TESTIFIED THAT FOR A
PERIOD OF TEN TO FIFTEEN MINUTES THREE PICKETERS STATIONED THEMSELVES
"INSIDE THE FENCE ABOUT SIX FEET FROM THE STEPS OF THE SERVICE CENTER,
THE ONLY ENTRANCE INTO THE CENTER RIGHT THERE". CONCEDEDLY THESE
PICKETS DID NOT BLOCK ACCESS TO THE CENTER NOR DID THEY IN ANY WAY
INTERFERE OR COMMUNICATE VERBALLY WITH EMPLOYEES OR MEMBERS OF THE
PUBLIC ENTERING THE CENTER. I FIND THIS INCIDENT TOO TRIVIAL AND TOO
ISOLATED TO WARRANT A FINDING THAT IT CHANGED THE NATURE OF THE
PICKETING.
WITH RESPECT TO THE CONTENTION THAT THE UNUSUAL NUMBER OF GRIEVANCES
FILED TOWARD THE TERMINATION OF THE CONTRACT WAS DIRECTLY RELATED TO THE
PICKETING, AND THUS ALTERED THE INFORMATIONAL CHARACTER OF THE
PICKETING, I FIND THE LINK BETWEEN THESE OCCURRENCES TOO TENUOUS AND
CREDIT RESPONDENT'S TESTIMONY THAT IT ENCOURAGED THE FILING OF POSSIBLE
GRIEVANCES DURING THE LAST WEEK OF THE CONTRACT, BECAUSE IT WAS
CONCERNED THAT THE NEGOTIATED GRIEVANCE PROCEDURE WOULD TERMINATE WITH
THE CONTRACT, LEAVING THE RESOLUTION OF ANY POSSIBLE PENDING COMPLAINTS
OR GRIEVANCES BY EMPLOYEES TO NON-CONTRACTUAL GRIEVANCE DEVICES. I FIND
THIS CONDUCT FULLY CONSONANT WITH A UNION'S DUTY TO REPRESENT THE
INTERESTS OF ITS MEMBERS. INDEED, A FAILURE TO ALERT THE EMPLOYEES IT
REPRESENTED TO THE FACT THAT THE EXISTING GRIEVANCE MACHINERY MAY WELL
TERMINATE WITH THE CONTRACT, COULD HAVE INVITED ACCUSATIONS THAT THE
RESPONDENT WAS REMISS IN ITS OBLIGATION TO ITS MEMBERSHIP AND TO THE
EMPLOYEES IT REPRESENTS AS THE EXCLUSIVE BARGAINING AGENT.
ON THE BASIS OF THE ABOVE FACTUAL DETERMINATIONS, THE ONLY LEGAL
QUESTION BEFORE ME IS WHETHER SECTION 19(B)(4) OF THE EXECUTIVE ORDER
/1/ PROHIBITS PICKETING WHICH IS PURELY INFORMATIONAL IN THE SENSE THAT
ITS ONLY PURPOSE AND EFFECT IS TO ADVISE THE PUBLIC AND COMPLAINANT'S
EMPLOYEES OF RESPONDENT'S POSITION IN THE CURRENT LABOR-MANAGEMENT
DISPUTE.
THE QUESTION POSED ABOVE IS NOT ONLY FORMIDABLE BUT ALSO NOVEL.
THERE ARE NEITHER PRIOR HOLDINGS NOR DICTA. IT IS TRUE THAT A
CONSIDERABLE BODY OF LAW, BOTH ADMINISTRATIVE AND JUDICIAL HAD ADDRESSED
ITSELF TO THIS DIFFICULT AND VEXING QUESTION. YET, THESE CASES, WHICH
INCIDENTALLY, HAVE BEEN DISCUSSED AND ANALYZED WITH GREAT CARE AND SKILL
IN THE RESPECTIVE BRIEFS TO THE PARTIES TO THIS PROCEEDING, SPECIFICALLY
ADDRESS THEMSELVES TO LABOR-MANAGEMENT PROBLEMS UNIQUE TO THE PRIVATE
SECTOR AND WITHOUT A COUNTERPART IN THE PUBLIC SECTOR. THUS, AN ANALOGY
WITH THE NATIONAL LABOR RELATIONS ACT LEADS US TO PERMISSIBLE AND
PROHIBITED PICKETING SITUATIONS IN THE CONTEXT OF ORGANIZATIONAL
PICKETING, SECTION 8(B)(7) OF THAT ACT. /2/ ALTHOUGH SECTION 8(B)(7),
WHICH DEALS WITH ORGANIZATIONAL PICKETING, HAS NO COUNTERPART IN THE
EXECUTIVE ORDER OR APPLICABILITY IN THIS CASE, IT IS OF INTEREST IN THAT
IT DEMONSTRATES: (1) THAT PICKETING IS NOT TOTALLY EQUATABLE TO THE
FREE SPEECH PROVISIONS OF THE FIRST AMENDMENT TO THE CONSTITUTION; AND
(2) THAT ADMINISTRATIVE BODIES AND THE COURTS IN CONSTRUING THE NLRA
HAVE CAREFULLY LIMITED THE PROHIBITIONS AGAINST INFORMATIONAL PICKETING
SO AS TO SAFEGUARD THE CONSTITUTIONALLY PROTECTED AREAS OF FREE SPEECH.
THAT INFORMATIONAL PICKETING IS NOT AN ABSOLUTE RIGHT IS AMPLY
DEMONSTRATED BY THE ABOVE CITED PROVISION IN THE NLRA WHICH PLACES VERY
DEFINITE LIMITATIONS ON INFORMATIONAL PICKETING. THUS, THE NLRA PERMITS
CERTAIN FORMS OF INFORMATIONAL PICKETING AS LONG AS SUCH PICKETING DOES
NOT HAVE AN AFFECT ON DELIVERIES OR OTHERWISE SERIOUSLY DISRUPTS THE
PLACE OF BUSINESS BEING PICKETED. THIS LIMITATION ON THE RIGHT TO
PICKET DOES NOT DEPEND ON THE INTENT OF THE PICKETING UNION NOR DOES IT
REST ON ANY DIRECT OR IMPLICIT POLICE POWER TO KEEP THE PICKETING WITHIN
CERTAIN BOUNDS. NO MATTER HOW PEACEFUL THE PICKETING MAY BE, NO MATTER
WHAT THE EXPRESS INTENT OF THE PICKETING IS, INDEED NO MATTER WHETHER
THE PICKETING UNION SPECIFICALLY EXHORTS TRUCK DRIVERS OR OTHER
DELIVERERS OF GOODS TO CROSS SUCH A PICKET LINE, THE PICKETING BECOMES
UNLAWFUL AND ENJOINABLE IF, IN FACT, IT HAS THE EFFECT, INTENDED OR NOT,
OF INTERFERING WITH DELIVERIES TO THE PICKETED ESTABLISHMENT. WHILE IT
CAN, OF COURSE BE ARGUED THAT EVEN THE MOST ELEMENTARY CONSTITUTIONAL
FREEDOMS ARE NOT UNLIMITED, (WE LEARN IN GRADE SCHOOL THAT FREEDOM OF
SPEECH DOES NOT PERMIT US TO SHOUT "FIRE" IN A CROWDED THEATER), THE
ABOVE-DESCRIBED LIMITATIONS GO BEYOND THE BASIC AND NECESSARY
PROTECTIONS A SOCIETY MUST AFFORD TO ALL ITS MEMBERS. INDEED, THESE
LIMITATIONS ARE SUFFICIENTLY SOPHISTICATED AND ESSENTIALLY SO BOTTOMED
ON ECONOMIC CONSIDERATIONS, THAT THEY WARRANT AN INFERENCE THAT NEITHER
THE CONGRESS NOR THE COURTS EVER INTENDED FULLY TO EQUATE PICKETING TO
FIRST AMENDMENT FREE SPEECH. YET, MOST ASSUREDLY, PICKETING GENERALLY,
AND INFORMATIONAL PICKETING PARTICULARLY, BRINGS INTO PLAY INHERENT
PROBLEMS AFFECTING CONSTITUTIONAL FREE SPEECH. WHERE TO DRAW THE LINES,
WHERE TO PLACE THE LIMITATIONS WITHOUT VIOLATING CONSTITUTIONAL
PRINCIPLES REMAINS A QUESTION NOT YET FULLY RESOLVED.
IN THE AREA OF LABOR-MANAGEMENT RELATIONS IN THE PUBLIC SECTOR, THIS
QUESTION HAS NOT GONE UNNOTICED. HOWEVER, NEITHER PRECEDENT NOR DICTUM
EXISTS TO SHOW US THE WAY. I HAVE CAREFULLY STUDIED THE CASES CITED BY
COUNSEL FOR ALL PARTIES IN THEIR LEARNED BRIEFS AND MUST COME TO THE
RELUCTANT CONCLUSION THAT NONE OF THESE CASES ARE DISPOSITIVE OF THE
ISSUE BEFORE ME. THESE CASES RUN THE GAMUT FROM LIBEL TO THE RIGHT TO
STRIKE, BUT NONE DEAL WITH THE QUESTION WHETHER PURE INFORMATIONAL
PICKETING IS PROHIBITED BY THE EXECUTIVE ORDER; AND, IF SO, WHETHER
SUCH PROHIBITION WOULD RENDER THE EXECUTIVE ORDER UNCONSTITUTIONAL. TO
BE SURE, PHRASES CAN BE PLUCKED OUT OF THESE DECISIONS, INFERENCES CAN
BE DRAWN, ANALOGIES CAN BE MADE TO SUPPORT EITHER PROPOSITION, BUT A
CAREFUL READING OF THESE CASES CONVINCES ME THAT THE COURTS HAVE
APPROACHED THIS VOLATILE QUESTION GINGERLY AT BEST, AND IN MOST CASES
HAVE CONSCIOUSLY AVOIDED RULING ON THESE QUESTIONS FOR THE EXPRESS
PURPOSE OF AVOIDING THE CONSTITUTIONAL PROBLEM. THIS, IN ITSELF, OF
COURSE, FORTIFIES RESPONDENT'S CONTENTION IN THIS CASE THAT A SERIOUS
CONSTITUTIONAL QUESTION MAY EXIST IF THE EXECUTIVE ORDER DOES INDEED
PROHIBIT ALL PICKETING RELATED TO LABOR-MANAGEMENT DISPUTES, BUT
UNFORTUNATELY THE CITED CASES, WHILE POSING THE QUESTION OBLIQUELY, FAIL
TO PROVIDE THE NECESSARY ANSWERS.
RESPONDENT URGES ME TO ANSWER THIS CONSTITUTIONAL PROBLEM IN THIS
PROCEEDING. FOR ONE WHO HAS WORKED IN LABOR LAW FOR A CONSIDERABLE
NUMBER OF YEARS, THE CHALLENGE IS FORMIDABLE; THE TEMPTATION IS GREAT.
YET, I MUST REGRETFULLY DECLINE. THE MAXIM THAT ADMINISTRATIVE BODIES
MUST ASSUME THE CONSTITUTIONALITY OF THE STATUTES THEY ADMINISTER AND
THAT THEY DO NOT POSSESS THE AUTHORITY TO DECLARE SUCH STATUTES
UNCONSTITUTIONAL IS TOO WELL SETTLED IN LAW TO WARRANT ANY DETAILED
DISCUSSION. IN FACT ALL PARTIES TO THIS PROCEEDING HAVE EXPRESSLY
STATED THEIR AGREEMENT WITH THIS SALUTORY LEGAL PRINCIPLE. THEREFORE,
REGARDLESS OF ANY PERSONAL DOUBTS OR LEGAL PREDILECTIONS, I AM NOT
EMPOWERED TO NOR DO I REACH THE QUESTION OF THE EXECUTIVE ORDER'S
CONSTITUTIONALITY. IN FAIRNESS TO COUNSEL FOR RESPONDENT, IT MUST BE
NOTED THAT HIS ARGUMENT IS MORE SUBTLE AND SOPHISTICATED. INDEED, AS
ALREADY NOTED, COUNSEL FOR RESPONDENT, FULLY AGREES THAT I AM NOT
EMPOWERED TO RULE ON THE CONSTITUTIONALITY OF THE EXECUTIVE ORDER AS
SUCH. WHAT COUNSEL DOES URGE IS THAT I AM EMPOWERED AND, INDEED,
MANDATED TO APPLY THE PRINCIPLE OF CONSTITUTIONAL APPLICABILITY, I.E.,
TO CONSTRUE SECTION 19(B)(4) OF THE EXECUTIVE ORDER IN SUCH MANNER AS TO
AVOID A CONFLICT WITH THE CONSTITUTION.
I AGREE WITH COUNSEL FOR RESPONDENT THAT ADMINISTRATIVE TRIBUNALS AS
WELL AS OTHER COURTS HAVE THE POWER AND THE OBLIGATION TO CONSTRUE ANY
AMBIGUITY IN A LAW IN SUCH MANNER THAT IT MAY COMPORT WITH
CONSTITUTIONAL LIMITATIONS. HOWEVER, I ALSO BELIEVE THAT THE PRINCIPLE
OF CONSTITUTIONAL APPLICABILITY SHOULD ONLY BE INVOKED WHEN THE LAW
ITSELF IS SO AMBIGUOUS OR UNCLEAR THAT IT CAN BE GIVEN DIFFERENT
INTERPRETATIONS. TO HOLD OTHERWISE WOULD, IN MY OPINION, SUBVERT A
SALUTORY LEGAL PRINCIPLE TO SOPHISTRY AND SUBTERFUGE AND COULD RESULT IN
A USURPATION OF JUDICIAL FUNCTIONS NOT GRANTED TO ADMINISTRATIVE
TRIBUNALS. THUS, BY MERELY APPLYING A LABEL TO THE PROCESS,
ADMINISTRATIVE AGENCIES COULD NOT ONLY RULE ON THE CONSTITUTIONALITY OF
THE LAWS THEY ADMINISTER, BUT ACTUALLY CHANGE THE CLEARLY EXPRESSED
LEGISLATIVE INTENT. SUCH A PROCESS WHEREBY JUDGES COULD INTERPRET A LAW
WHICH IS CLEAR AND UNAMBIGUOUS IN LANGUAGE IN WAYS DIFFERENT FROM ITS
CLEARLY INTENDED MEANING BECAUSE, IN THE OPINION OF THE DECIDING
TRIBUNAL IT CLASHES WITH CONSTITUTIONAL PRINCIPLES, WOULD MAKE
LEGISLATORS OUT OF JUDGES AND WOULD INEVITABLY FUSE THE LEGISLATIVE AND
JUDICIAL FUNCTIONS TO THE DETRIMENT OF BOTH.
THE QUESTION IS THEN POSED WHETHER SECTION 19(B)(4) OF THE EXECUTIVE
ORDER IS SO CLEAR AND UNAMBIGUOUS ON ITS FACT THAT IT MUST BE READ AND
APPLIED LITERALLY, OR WHETHER THERE IS SUFFICIENT AMBIGUITY IN ITS
WORDING TO WARRANT SPECULATION, INTERPRETATION, AND, INDEED, THE
APPLICATION OF CONSTITUTIONAL CONSTRUCTION. AFTER CONSIDERABLE
DELIBERATION AND AFTER MANY READINGS OF SECTION 19(B)(4), AS WELL AS THE
STUDY COMMITTEE REPORT AND RECOMMENDATIONS OF AUGUST 1969 WHICH
CONSTITUTES THE ONLY, ALBEIT MEAGER, LEGISLATIVE HISTORY REGARDING THIS
SECTION, I MUST COME TO THE CONCLUSION THAT THE LANGUAGE EMPLOYED IS SO
CLEAR AND UNAMBIGUOUS THAT ONLY A LITERAL INTERPRETATION IS JUSTIFIED.
THE PROHIBITION AGAINST PICKETING IN A LABOR-MANAGEMENT DISPUTE IS
CLEARLY AND PLAINLY STATED. IT IS CAREFULLY SEPARATED FROM THE OTHER
PROHIBITIONS CONTAINED IN THAT SECTION BY THE CLEAR DEMARCATION OF
SEMICOLONS. I KNOW OF NO WAY HOW THE FRAMERS OF THE EXECUTIVE ORDER
COULD HAVE STATED THEIR INTENT MORE CLEARLY. THEREFORE, DESPITE THE
FACT THAT THE BREADTH OF THE PROHIBITION RAISES IN MY MIND SERIOUS
CONSTITUTIONAL PROBLEMS, I MUST CONCLUDE THAT IT IS MY OBLIGATION TO
APPLY THE EXECUTIVE ORDER LITERALLY TO THE FACTS OF THIS CASE.
WHILE I AM NOT UNMINDFUL OF THE LEGAL PRINCIPLE THAT WHERE A STATUTE
IS CLEAR AND UNAMBIGUOUS ON ITS FACT, RESORT TO LEGISLATIVE HISTORY IS
ORDINARILY NOT WARRANTED, THE GRAVITY OF THE QUESTION POSED AS WELL AS
THE FACT THAT I SPECIFICALLY INVITED ARGUMENT FROM ALL COUNSEL ON
LEGISLATIVE HISTORY, I WOULD LIKE TO ADDRESS THIS AREA BRIEFLY.
THE PERTINENT LEGISLATIVE HISTORY IS CONTAINED IN SECTION I OF THE
STUDY COMMITTEE REPORT AND RECOMMENDATIONS OF AUGUST 1969, WHICH LED TO
THE ISSUANCE OF EXECUTIVE ORDER 11491. THE STUDY COMMITTEE NOTED THAT
THERE HAD "BEEN SOME DIFFICULTY IN INTERPRETING THE 'RELATED PICKETING'
OF THE CODE SECTION WHICH PROHIBITED A LABOR ORGANIZATION FROM
'CALLING OR ENGAGING IN ANY STRIKE, WORK STOPPAGE, SLOWDOWN, OR
RELATED PICKETING ENGAGED
IN AS A SUBSTITUTE FOR ANY SUCH STRIKE, WORK STOPPAGE OR SLOWDOWN,
AGAINST THE GOVERNMENT OF
THE UNITED STATES.'"
THE STUDY COMMITTEE FOUND THE ABOVE CITED LANGUAGE "UNNECESSARILY
OBSCURE AND CONFUSING" AND RECOMMENDED THAT IT BE REVISED "TO STATE
CLEARLY AND SIMPLY ITS INTENDED MEANING, WHICH IS TO PROHIBIT THE USE OF
PICKETING DIRECTED AT AN EMPLOYING AGENCY BY A LABOR ORGANIZATION IN A
LABOR-MANAGEMENT DISPUTE." THIS RECOMMENDATION RESULTED IN THE
SIMPLIFIED LANGUAGE OF SECTION 19(B)(4) OF EXECUTIVE ORDER 11491 WHICH
STATES THAT:
"A LABOR ORGANIZATION SHALL NOT-- (4) CALL OR ENGAGE IN A STRIKE,
WORK STOPPAGE, OR
SLOWDOWN; PICKET AN AGENCY IN A LABOR MANAGEMENT DISPUTE; OR
CONDONE ANY SUCH ACTIVITY BY
FAILING TO TAKE AFFIRMATIVE ACTION TO PREVENT OR STOP IT;"
IT WOULD APPEAR THAT UNDER EXECUTIVE ORDER 10988 THE PROHIBITION
AGAINST PICKETING WAS CLEARLY RELATED TO A STRIKE SITUATION. THUS THE
LANGUAGE OF EXECUTIVE ORDER 10988, AS QUOTED ABOVE, APPEARS TO HAVE
PROHIBITED PICKETING WHEN IT WAS RELATED TO A STRIKE, WORK STOPPAGE OR
SLOW DOWN AND/OR WHEN IT WAS ENGAGED IN AS A SUBSTITUTE FOR ANY SUCH
ACTION. IT IS, HOWEVER, NOT CLEAR WHETHER BOTH ELEMENTS, I.E.,
"RELATED" TO A STRIKE, SLOW DOWN, ETC., AND AS A SUBSTITUTE" FOR A
STRIKE, SLOW DOWN, ETC., WOULD HAVE BEEN NECESSARY TO INVOKE THE
PROHIBITION, OR WHETHER EITHER OF THESE ELEMENTS WOULD HAVE MADE THE
CONDUCT VIOLATIVE. THE LANGUAGE IS, INDEED, CONFUSING. I BELIEVE THAT
IT WAS THIS VERY AMBIGUITY WHICH THE STUDY COMMITTEE ADDRESSED ITSELF TO
WHEN IT STATED THAT THERE HAD BEEN SOME "DIFFICULTY IN INTERPRETING THE
'RELATED PICKETING' LANGUAGE". THE CLARIFICATION SEEMS TO HAVE RESULTED
IN AN OUTRIGHT PROHIBITION AGAINST ALL PICKETING IN THE CONTEXT OF A
LABOR-MANAGEMENT DISPUTE. IT IS TRUE THAT SUBSEQUENT LANGUAGE IN THE
STUDY REPORT REFERS TO "PROHIBITED PICKETING", A PHRASE WHICH WOULD
IMPLY THAT NOT ALL PICKETING IS MADE UNLAWFUL, AND THAT, INDEED, CERTAIN
PICKETING IS NOT PROHIBITED. HOWEVER, IN VIEW OF THE CLEAR AND
UNEQUIVOCAL PROHIBITION AGAINST ALL PICKETING IN A LABOR-MANAGEMENT
DISPUTE WHICH EMERGED AS A RECOMMENDATION BY THE STUDY COMMITTEE AND WAS
SUBSEQUENTLY INCORPORATED INTO EXECUTIVE ORDER 11491, I AM PERSUADED
THAT THE QUALIFICATION OF "PROHIBITED" PICKETING MERELY REFERS TO THE
FACT THAT THE PROHIBITION IS LIMITED TO PICKETING IN A LABOR-MANAGEMENT
DISPUTE. WHILE I FIND IT SOMEWHAT DIFFICULT TO CONJURE UP SITUATIONS
WHERE A LABOR ORGANIZATION WOULD PICKET ABSENT A LABOR-MANAGEMENT
DISPUTE, I MUST REJECT RESPONDENT COUNSEL'S CONTENTION, AS EXPRESSED IN
HIS BRIEF, THAT SUCH A SITUATION COULD NEVER ARISE. I SUPPOSE LABOR
ORGANIZATIONS COULD PICKET FOR POLITICAL OR OTHER PURPOSES NOT RELATED
TO A LABOR-MANAGEMENT DISPUTE-- AREAS WHICH, OF COURSE, COULD NOT BE
REACHED BY THE EXECUTIVE ORDER.
COUNSEL FOR RESPONDENT ALSO ARGUES PERSUASIVELY THAT THE EXPRESSED
INTENT OF THE STUDY COMMITTEE WAS TO CLARIFY EXECUTIVE ORDER 10988 AND
NOT NECESSARILY TO BROADEN IT. THE POINT IS WELL TAKEN, FOR, AS COUNSEL
POINTS OUT, WHEN THE STUDY COMMITTEE RECOMMENDED SUBSTANTIVE OR
PROCEDURAL CHANGES AS DISTINCT FROM CLARIFICATIONS, FAR MORE ELABORATE
AND DETAILED EXPLANATIONS ACCOMPANIES SUCH RECOMMENDATIONS. WHILE THIS
MATTER REMAINS BY NECESSITY SOMEWHAT OBSCURE, A READING OF THE RELEVANT
LANGUAGE OF THE REPORT IN ITS FULL CONTEXT AS WELL AS THE UNQUALIFIED
LANGUAGE OF THE STUDY COMMITTEE'S RECOMMENDATION, CONVINCES ME THAT THE
STUDY COMMITTEE DID INDEED RECOMMEND A TOTAL BAN ON ALL PICKETING IN A
LABOR-MANAGEMENT DISPUTE. SINCE THE PROPOSAL WAS INCORPORATED IN
EXECUTIVE ORDER 11491 VERBATIM, I MUST ALSO CONCLUDE THAT THE EXECUTIVE
ORDER IS EQUALLY BROAD IN ITS PROHIBITION.
IT IS ALSO TRUE, AS COUNSEL ARGUES, THAT THE STUDY COMMITTEE DID NOT
WRITE ITS REPORT IN A VACUUM; THAT IT WAS FULLY COGNIZANT OF THE FACT
THAT THE EXECUTIVE ORDER WAS CLOSELY PATTERNED AFTER THE NATIONAL LABOR
RELATIONS ACT; AND THAT IT WAS FAMILIAR WITH BOARD AND COURT PRECEDENTS
WHICH HAD SPOKEN TO THE QUESTION OF INFORMATIONAL PICKETING. HOWEVER,
THE VERY FACT THAT I MUST ASSUME SUCH EXPERTISE ON THE PART OF THE STUDY
COMMITTEE CONVINCES ME THAT THE BREADTH OF LANGUAGE EXPRESSED IN SECTION
19(B)(4) WAS DELIBERATE. IF THE STUDY COMMITTEE IN ITS DESIRE TO
CLARIFY THE PROHIBITION AGAINST PICKETING WOULD HAVE WISHED TO CARVE OUT
CERTAIN PROTECTED AREAS, IT WOULD HAVE BEEN A RELATIVELY SIMPLE MATTER
TO DO SO SPECIFICALLY. I CANNOT ASSUME THAT THE STUDY COMMITTEE ON THE
ONE HAND STATED A CLEAR INTENT TO CLARIFY THE PROHIBITION WHILE ON THE
OTHER IT WOULD EITHER DELIBERATELY OR BY OVERSIGHT CREATE ADDITIONAL
CONFUSION.
THEREFORE, ON THE BASIS OF THE ABOVE, I MUST REITERATE THAT,
REGARDLESS OF THE INHERENT AND SUBSTANTIAL CONSTITUTIONAL QUESTION WHICH
RESPONDENT MAY RAISE IN ANOTHER FORUM, I AM CONSTRAINED TO HOLD THAT THE
PROHIBITIONS OF SECTION 19(B)(4) MUST BE APPLIED LITERALLY TO THE FACTS
OF THE INSTANT CASE.
I THEREFORE FIND THAT THE ASSISTANT REGIONAL DIRECTOR HAS FULLY MET
THE REQUIRED BURDEN OF PROOF AND THAT RESPONDENT, BY PICKETING
COMPLAINANT'S INSTALLATIONS IN CONNECTION WITH A LABOR-MANAGEMENT
DISPUTE HAS VIOLATED SECTION 19(B)(4) OF EXECUTIVE ORDER 11491.
IT IS RECOMMENDED THAT RESPONDENT BE DIRECTED BY THE ASSISTANT
SECRETARY TO CEASE AND DESIST FROM THE ABOVE DESCRIBED UNLAWFUL CONDUCT
AND THAT IT SHALL TAKE IMMEDIATE AFFIRMATIVE ACTION TO STOP AND PREVENT
ANY SUCH PICKETING OF COMPLAINANT AT EITHER ITS HEADQUARTERS OR ANY
OTHER INSTALLATION. SPECIFICALLY, RESPONDENT IS ORDERED TO NOTIFY ITS
OFFICERS AND AGENTS, AS WELL AS ITS MEMBERSHIP, THAT ITS PICKETING OF
COMPLAINANT'S INSTALLATIONS IN THE COURSE OF ITS CURRENT
LABOR-MANAGEMENT DISPUTE HAS BEEN FOUND TO BE ILLEGAL. RESPONDENT IS
FURTHER ORDERED TO ISSUE A DIRECTIVE TO ITS OFFICERS, AGENTS AND MEMBERS
TO CEASE SUCH ILLEGAL CONDUCT AND TO REFRAIN FROM ANY SIMILAR CONDUCT IN
THE FUTURE. THE ABOVE REFERRED TO NOTICES AND DIRECTIVES SHALL BE IN
THE FORM OF LETTERS, NOTICES ON BULLETIN BOARDS, OR OTHER EFFECTIVE
MEANS OF COMMUNICATION. EVIDENCE OF COMPLIANCE WITH THE ORDER SHALL BE
SUBMITTED BY RESPONDENT TO THE ASSISTANT SECRETARY WITHIN (10) DAYS
FOLLOWING THE DATE OF THE ORDER.
IN VIEW OF THE FACT THAT THIS IS A TEST CASE OF FIRST IMPRESSION
WHICH RAISES SERIOUS AND COMPLEX PROBLEMS, THE RESOLUTION OF WHICH IS
NOT FREE OF DOUBT, AND ALSO IN RECOGNITION OF THE FACT THAT ONLY THROUGH
THE PROCESS OF ELUCIDATING LITIGATION IN SUCH TEST CASES CAN SUCH BASIC
AND FAR REACHING QUESTIONS AFFECTING FEDERAL LABOR-MANAGEMENT RELATIONS
BE DEVELOPED AND RESOLVED EFFECTIVELY, I SPECIFICALLY RECOMMEND THAT THE
ASSISTANT SECRETARY INVOKE NO FURTHER SANCTIONS AGAINST RESPONDENT.
DATED: JULY 7, 1975
WASHINGTON, D.C.
/1/ SECTION 19(B)(4) PROVIDES: "(B) A LABOR ORGANIZATION SHALL NOT--
(4) CALL OR ENGAGE IN A STRIKE, WORK STOPPAGE, OR SLOWDOWN; PICKET AN
AGENCY IN A LABOR-MANAGEMENT DISPUTE; OR CONDONE ANY SUCH ACTIVITY BY
FAILING TO TAKE AFFIRMATIVE ACTION TO PREVENT OR STOP IT;"
/2/ SECTION 8(B)(7) PROVIDES: "(B) IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR A LABOR ORGANIZATION OR ITS AGENTS-- (7) TO PICKET OR CAUSE
TO BE PICKETED, OR THREATEN TO PICKET OR CAUSE TO BE PICKETED, ANY
EMPLOYER WHERE AN OBJECT THEREOF IS FORCING OR REQUIRING AN EMPLOYER TO
RECOGNIZE OR BARGAIN WITH A LABOR ORGANIZATION AS THE REPRESENTATIVE OF
HIS EMPLOYEES, OR FORCING OR REQUIRING THE EMPLOYEES OF AN EMPLOYER TO
ACCEPT OR SELECT SUCH LABOR ORGANIZATION AS THEIR COLLECTIVE BARGAINING
REPRESENTATIVE, UNLESS SUCH LABOR ORGANIZATION IS CURRENTLY CERTIFIED AS
THE REPRESENTATIVE OF SUCH EMPLOYEES: . . . PROVIDED FURTHER, THAT
NOTHING IN THIS SUBPARAGRAPH (C) SHALL BE CONSTRUED TO PROHIBIT ANY
PICKETING OR OTHER PUBLICITY FOR THE PURPOSE OF TRUTHFULLY ADVISING THE
PUBLIC (INCLUDING CONSUMERS) THAT AN EMPLOYER DOES NOT EMPLOY MEMBERS
OF, OR HAVE A CONTRACT WITH, A LABOR ORGANIZATION, UNLESS AN EFFECT OF
SUCH PICKETING IS TO INDUCE ANY INDIVIDUAL EMPLOYED BY ANY OTHER PERSON
IN THE COURSE OF HIS EMPLOYMENT, NOT TO PICK UP, DELIVER OR TRANSPORT
ANY GOODS OR NOT TO PERFORM ANY SERVICES."
5 A/SLMR 535; P. 466; CASE NOS. 61-2350(RA), 61-2367(CA); JULY 29,
1975.
DENVER AIRWAY FACILITIES HUB SECTOR
FAA, ROCKY MOUNTAIN REGION, DOT
AURORA, COLORADO
A/SLMR NO. 535
THIS CONSOLIDATED PROCEEDING INVOLVED AN RA PETITION FILED BY THE
DENVER AIRWAY FACILITIES HUB SECTOR, FAA, ROCKY MOUNTAIN SECTOR, DOT,
AURORA, COLORADO (ACTIVITY) SEEKING AN ELECTION IN AN EXISTING UNIT OF
NONPROFESSIONAL GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES CURRENTLY
REPRESENTED ON AN EXCLUSIVE BASIS BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2664, AFL-CIO (AFGE). THE ACTIVITY
CONTENDED, IN THIS REGARD, THAT IT HAD GOOD FAITH DOUBT THAT THE AFGE
CURRENTLY REPRESENTED A MAJORITY OF THESE EMPLOYEES. THE AFGE ASSERTED
THAT THE RA PETITION SHOULD BE DISMISSED BECAUSE IT WAS FILED UNTIMELY
DURING THE INSULATED 90 DAY PERIOD PROVIDED FOR IN SECTION 202.3(D) OF
THE ASSISTANT SECRETARY'S REGULATIONS FOLLOWING THE DISMISSAL OF A
DECERTIFICATION (DR) PETITION SEEKING AN ELECTION IN THE SAME UNIT.
ADDITIONALLY, AN UNFAIR LABOR PRACTICE COMPLAINT WAS FILED BY THE AFGE
ALLEGING ESSENTIALLY THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) AND (6)
OF THE ORDER BY REFUSING TO RENEGOTIATE, UPON REQUEST, THE EXPIRING
AGREEMENT BETWEEN THE AFGE AND THE ACTIVITY. THE ACTIVITY CONTENDED
THAT IT WAS ESTOPPED FROM NEGOTIATING WITH THE AFGE BASED ON THE
PENDENCY OF ITS RA PETITION.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RA PETITION WAS FILED
TIMELY BY THE ACTIVITY AS, IN HIS VIEW, THE 90 DAY PERIOD PROVIDED FOR
IN SECTION 202.3(D) OF THE REGULATIONS TO CONSUMMATE AN AGREEMENT AFTER
DISMISSAL OR WITHDRAWAL OF A PETITION CHALLENGING THE REPRESENTATION
STATUS OF AN INCUMBENT EXCLUSIVE REPRESENTATIVE DOES NOT APPLY TO AN RA
PETITION WHICH RAISES A GOOD FAITH DOUBT AS TO MAJORITY STATUS, AND HE
FURTHER IMPLIED THAT AN RA PETITION RAISING DOUBTS AS TO CONTINUE
MAJORITY STATUS MAY BE FILED AT ANY TIME BEYOND THE CERTIFICATION YEAR.
ACCORDINGLY, AND AS HE FOUND THE RA PETITION WAS FILED IN GOOD FAITH,
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE UNFAIR LABOR PRACTICE
COMPLAINT BE DISMISSED IN ITS ENTIRETY AND AN ELECTION BE HELD IN THE
APPROPRIATE UNIT PURSUANT TO THE RA PETITION.
THE ASSISTANT SECRETARY DISAGREED WITH THE RATIONALE AND CONCLUSIONS
OF THE ADMINISTRATIVE LAW JUDGE. NOTING THE DISTINCTIONS BETWEEN AN RA
PETITION FILED IN GOOD FAITH BASED ON CHANGES IN THE CHARACTER AND SCOPE
OF A UNIT AND AN RA PETITION WHICH IS BASED ON A GOOD FAITH DOUBT AS TO
THE CONTINUED MAJORITY STATUS OF AN INCUMBENT EXCLUSIVE REPRESENTATIVE
IN AN EXISTING UNIT, HE CONCLUDED THAT PETITIONS OF THE LATTER TYPE,
SUCH AS THE INSTANT RA PETITION, ARE SUBJECT TO THE TIMELINESS
REQUIREMENTS OR SECTION 202.3 OF THE REGULATIONS, INCLUDING SECTION
202.3(D) OF THE REGULATIONS. HE CONCLUDED, THEREFORE, THAT THE INSTANT
RA PETITION WAS FILED UNTIMELY BY THE ACTIVITY, AS IT WAS FILED WITHIN
THE INSULATED 90 DAY PERIOD PROVIDED BY SECTION 202.3(D) OF THE
REGULATIONS. ACCORDINGLY, HE ORDERED THAT THE RA PETITION BE DISMISSED.
ALTHOUGH HE HAD FOUND THAT THE RA PETITION WAS UNTIMELY FILED, AND
THAT, IN EFFECT, THERE WAS NO BAR TO THE PARTIES NEGOTIATING FOR A NEW
AGREEMENT DURING THE PRESCRIBED 90 DAY PERIOD AFTER THE DISMISSAL OF THE
DR PETITION, THE ASSISTANT SECRETARY NOTED THAT BOTH THE ASSISTANT
SECRETARY AND THE FEDERAL LABOR RELATIONS COUNCIL (FLRC) HAVE INDICATED
THAT WHEN AN RA PETITION IS FILED IN GOOD FAITH, THE PETITIONING AGENCY
SHOULD BE PERMITTED TO REMAIN NEUTRAL DURING THE PENDENCY OF SUCH
PETITION AND BE GIVEN A REASONABLE OPPORTUNITY TO COMPLY WITH THE
CONSEQUENCES WHICH FLOW FROM THE REPRESENTATION DECISION BEFORE
INCURRING THE RISK OF AN UNFAIR LABOR PRACTICE FINDING. NOTING THAT THE
EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT THE ACTIVITY'S RA PETITION
IN THIS MATTER WAS, IN FACT, NOT FILED IN GOOD FAITH, THE ASSISTANT
SECRETARY FOUND THAT, DURING ITS PENDENCY, THE ACTIVITY WAS NOT
OBLIGATED TO MEET AND CONFER WITH THE AFGE WITH RESPECT TO A NEW
AGREEMENT, AND HE, THEREFORE, CONCLUDED THAT THE UNFAIR LABOR PRACTICE
COMPLAINT SHOULD BE DISMISSED. THE ASSISTANT SECRETARY NOTED, HOWEVER,
THAT THE CONSEQUENCE OF HIS DETERMINATION WITH RESPECT TO THE TIMELINESS
OF THE RA PETITION IS THAT THE PARTIES SHOULD NOW BE AFFORDED FROM THE
DATE OF THE DECISION THE 90 DAY PERIOD PROVIDED FOR IN SECTION 202.3(D)
OF THE REGULATIONS, FREE FROM ANY PETITION CHALLENGING THE
REPRESENTATION STATUS OF THE AFGE, IN WHICH TO NEGOTIATE IN GOOD FAITH
FOR THE PURPOSE OF CONSUMMATING A NEW NEGOTIATED AGREEMENT.
DENVER AIRWAY FACILITIES HUB SECTOR
FAA, ROCKY MOUNTAIN REGION, DOT
AURORA, COLORADO
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2665, AFL-CIO
DENVER AIRWAY FACILITIES HUB SECTOR
FAA, ROCKY MOUNTAIN REGION, DOT
AURORA, COLORADO
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2665, AFL-CIO
ON APRIL 25, 1975, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK ISSUED
HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED CONSOLIDATED
PROCEEDING, FINDING THAT THE ACTIVITY HAD NOT ENGAGED IN THE UNFAIR
LABOR PRACTICES ALLEGED IN THE COMPLAINT IN CASE NO. 61-2367(CA) AND
RECOMMENDING THAT THE COMPLAINT IN THAT CASE BE DISMISSED IN ITS
ENTIRETY. IN CASE NO. 61-2350(RA) THE ADMINISTRATIVE LAW JUDGE FOUND
THAT THE ACTIVITY HAD A GOOD FAITH DOUBT AS TO THE CONTINUED MAJORITY
STATUS OF THE AFGE, THE EXCLUSIVELY RECOGNIZED REPRESENTATIVE, AND HE
RECOMMENDED THAT THE ASSISTANT SECRETARY DIRECT AN ELECTION IN THE
EXCLUSIVELY RECOGNIZED APPROPRIATE UNIT. THEREAFTER, THE AFGE FILED
EXCEPTIONS AND A SUPPORTING BRIEF WITH RESPECT TO THE ADMINISTRATIVE LAW
JUDGE'S REPORT AND RECOMMENDATION.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE SUBJECT CASES, INCLUDING THE
AFGE'S EXCEPTIONS AND SUPPORTING BRIEF, I HEREBY ADOPT THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION ONLY
TO THE EXTENT CONSISTENT HEREWITH.
IN CASE NO. 61-2350(RA), THE ACTIVITY FILED AN RA PETITION SEEKING AN
ELECTION IN THE EXISTING UNIT OF NONPROFESSIONAL GENERAL SCHEDULE AND
WAGE GRADE EMPLOYEES WHICH CURRENTLY IS REPRESENTED ON AN EXCLUSIVE
BASIS BY THE AFGE. THE ACTIVITY CONTENDS THAT ITS RA PETITION IS
APPROPRIATE AND AN ELECTION SHOULD BE CONDUCTED BECAUSE IT HAS A GOOD
FAITH DOUBT THAT THE AFGE CURRENTLY REPRESENTS A MAJORITY OF THE
EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNIT. THE AFGE ASSERTS, ON THE
OTHER HAND, THAT THE INSTANT RA PETITION SHOULD BE DISMISSED BECAUSE IT
WAS FILED UNTIMELY DURING THE INSULATED 90 DAY PERIOD PROVIDED FOR IN
SECTION 202.3(D) OF THE ASSISTANT SECRETARY'S REGULATIONS FOLLOWING THE
DISMISSAL OF A DECERTIFICATION (DR) PETITION SEEKING AN ELECTION IN THE
SAME UNIT.
THE UNFAIR LABOR PRACTICE COMPLAINT IN CASE NO. 61-2367(CA) ALLEGED
ESSENTIALLY THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) OF THE
ORDER BY REFUSING TO RENEGOTIATE, UPON REQUEST, THE EXPIRING AGREEMENT
BETWEEN THE AFGE AND THE ACTIVITY. IN THIS CONNECTION, THE ACTIVITY
CONTENDED THAT IT WAS ESTOPPED FROM NEGOTIATING WITH THE AFGE BASED ON
THE PENDENCY OF THE RA PETITION WHICH IT HAD FILED IN CASE NO.
61-2350(RA).
THE ESSENTIAL FACTS ARE NOT IN DISPUTE AND I SHALL REPEAT THEM ONLY
TO THE EXTENT DEEMED NECESSARY.
ON JANUARY 28, 1974, THE AFGE REQUESTED NEGOTIATIONS WITH THE
ACTIVITY WITH RESPECT TO THE PARTIES' NEGOTIATED AGREEMENT WHICH WAS DUE
TO EXPIRE ON MARCH 31, 1974. THE FOLLOWING DAY THE ACTIVITY AGREED TO
NEGOTIATIONS, INDICATING, HOWEVER, THAT IT WANTED TO RENEGOTIATE, RATHER
THAN AMEND, THE PARTIES' EXISTING AGREEMENT, AND IN THIS CONNECTION IT
SOUGHT PROPOSALS FROM THE AFGE. ON JANUARY 30, 1974, RONALD OWENS, AN
EMPLOYEE OF THE ACTIVITY, FILED A DR PETITION SEEKING TO DECERTIFY THE
AFGE AS THE EXCLUSIVE BARGAINING REPRESENTATIVE. HAVING BEEN NOTIFIED
OF THE FILING OF THE DR PETITION, THE ACTIVITY INDICATED ON FEBRUARY 2,
1974, THAT IT COULD NOT PURSUE NEGOTIATIONS UNTIL THE ISSUES RAISED BY
THE FILING OF THE DR PETITION HAD BEEN RESOLVED. NEVERTHELESS, ON MARCH
4, 1974, THE ACTIVITY RECEIVED FROM THE AFGE THE LATTER'S PROPOSED
CHANGES IN THE PARTIES' NEGOTIATED AGREEMENT. THEREAFTER, ON MAY 14,
1974, THE ASSISTANT SECRETARY DENIED OWENS' REQUEST FOR REVIEW SEEKING
REVERSAL OF THE ASSISTANT REGIONAL DIRECTOR'S DECISION TO DISMISS HIS DR
PETITION ON THE GROUND THAT IT HAD BEEN FILED UNTIMELY. ON OR ABOUT THE
TIME THE DENIAL OF THE REQUEST FOR REVIEW WAS RECEIVED BY THE PARTIES,
THE CHIEF NEGOTIATOR FOR THE AFGE LEFT THE DENVER AREA FOR FOUR WEEKS OF
TRAINING. ON JUNE 17, 1974, THE CHIEF NEGOTIATOR RETURNED TO HIS DUTY
STATION AND MADE ARRANGEMENTS TO BEGIN DISCUSSIONS ON JUNE 21, 1974,
WITH THE ACTIVITY CONCERNING THE AFGE'S AGREEMENT PROPOSALS. ON JUNE
19, 1974, AN EMPLOYEE OF THE ACTIVITY SUBMITTED TO THE LATTER A PETITION
SIGNED BY 34 OF THE 53 EMPLOYEES THEN IN THE EXCLUSIVELY RECOGNIZED UNIT
WHICH ASSERTED THAT THE CURRENT EXCLUSIVE REPRESENTATIVE NO LONGER
REPRESENTED A MAJORITY OF THE EMPLOYEES. AS A RESULT OF RECEIVING THIS
PETITION SIGNED BY ITS EMPLOYEES, THE ACTIVITY FILED AN RA PETITION,
CLAIMING THAT IT HAD A GOOD FAITH DOUBT AS TO THE CONTINUED MAJORITY
STATUS OF THE AFGE AS THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES.
BASED ON ITS ASSERTED GOOD FAITH DOUBT, AS REFLECTED BY THE FILING OF
THE RA PETITION, THE ACTIVITY AGAIN REFUSED TO NEGOTIATE WITH THE AFGE
UNTIL THE QUESTION CONCERNING REPRESENTATION RAISED BY ITS RA PETITION
HAD BEEN RESOLVED. SUBSEQUENTLY, THE AFGE FILED THE COMPLAINT HEREIN
BASED ON THE ACTIVITY'S REFUSAL TO PROCEED WITH NEGOTIATIONS.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT, UNDER THE FOREGOING
CIRCUMSTANCES, THE SUBJECT RA PETITION WAS FILED TIMELY BECAUSE, IN HIS
VIEW, THE 90 DAY PERIOD PROVIDED FOR IN SECTION 202.3(D) OF THE
ASSISTANT SECRETARY'S REGULATIONS TO CONSUMMATE AN AGREEMENT AFTER
DISMISSAL OR WITHDRAWAL OF A PETITION CHALLENGING THE REPRESENTATION
STATUS OF THE INCUMBENT EXCLUSIVE REPRESENTATIVE /2/ (THE DR PETITION IN
THE INSTANT CASE) DOES NOT APPLY TO AN RA PETITION RAISING A GOOD FAITH
DOUBT AS TO MAJORITY STATUS. MOREOVER, HE IMPLIED THAT AN RA PETITION
RAISING DOUBTS AS TO CONTINUED MAJORITY STATUS MAY BE FILED AT ANY TIME
BEYOND THE CERTIFICATION YEAR. /3/
I DISAGREE WITH THE FOREGOING RATIONALE OF THE ADMINISTRATIVE LAW
JUDGE. SECTION 202.3(C) OF THE ASSISTANT SECRETARY'S REGULATIONS
PROVIDES FOR AN "OPEN PERIOD" PRIOR TO THE TERMINATION OF AN EXISTING
NEGOTIATED AGREEMENT FOR THE FILING OF PETITIONS FOR EXCLUSIVE
RECOGNITION "OR OTHER ELECTION PETITION(S)." /4/ HOWEVER, WHEN SUCH
PETITIONS HAVE BEEN RESOLVED BY WITHDRAWAL OR DISMISSAL LESS THAN 60
DAYS PRIOR TO THE TERMINAL DATE OF A NEGOTIATED AGREEMENT "OR ANY TIME
THEREAFTER," AS NOTED ABOVE, SECTION 202.3(D) OF THE REGULATIONS
PROVIDES THE PARTIES WITH AN INSULATED 90 DAY PERIOD IN WHICH TO
CONSUMMATE AN AGREEMENT. SUCH A PERIOD IS PROVIDED BASED ON THE
RATIONALE THAT DURING THE PENDENCY OF A PETITION FOR AN ELECTION (THE DR
IN THIS CASE) THE INCUMBENT EXCLUSIVE REPRESENTATIVE HAD NOT BEEN
AFFORDED THE PRESCRIBED INSULATED PERIOD SET FORTH IN SECTION 202.3(C)
OF THE REGULATIONS IN WHICH TO CONSUMMATE AN AGREEMENT.
IN PRIOR DECISIONS AND IN THE RECENTLY ISSUED REGULATIONS, THE
ASSISTANT SECRETARY HAS ESTABLISHED A DISTINCTION BETWEEN RA PETITIONS
WHICH ARE BASED ON A GOOD FAITH DOUBT AS TO THE CONTINUED MAJORITY
STATUS OF AN INCUMBENT EXCLUSIVE REPRESENTATIVE IN THE EXISTING UNIT AND
RA PETITIONS WHICH QUESTION WHETHER AN EXCLUSIVELY RECOGNIZED UNIT
REMAINS APPROPRIATE BECAUSE OF A SUBSTANTIAL CHANGE IN ITS CHARACTER AND
SCOPE. /5/ IN THIS CONNECTION, AN RA PETITION FILED IN GOOD FAITH BASED
ON CHANGES IN THE CHARACTER AND SCOPE OF A UNIT IS CONSIDERED TO RAISE
THE "UNUSUAL CIRCUMSTANCES" CONTEMPLATED BY SECTION 202.3(C)(3) OF THE
ASSISTANT SECRETARY'S REGULATIONS AND, THUS, IS NOT SUBJECT TO THE OTHER
TIMELINESS REQUIREMENTS SET FORTH IN SECTION 202.3 OF THE REGULATIONS.
HOWEVER, AN RA PETITION WHICH IS BASED ON A GOOD FAITH DOUBT AS TO THE
CONTINUED MAJORITY STATUS OF AN INCUMBENT EXCLUSIVE REPRESENTATIVE IN
THE EXISTING UNIT, SUCH AS THE INSTANT RA PETITION, CLEARLY IS SUBJECT
TO THE TIMELINESS REQUIREMENTS OF SECTION 202.3 OF THE REGULATIONS AS IS
ANY DR OR RO PETITION WHICH CHALLENGES THE REPRESENTATION STATUS OF AN
INCUMBENT EXCLUSIVE REPRESENTATIVE. THUS, IT FOLLOWS THAT AN RA
PETITION BASED ON A GOOD FAITH DOUBT OF MAJORITY STATUS IS SUBJECT TO
THE REQUIREMENTS OF SECTION 202.3(D) OF THE REGULATIONS. UNDER THESE
CIRCUMSTANCES, I FIND THAT WHEN THE DR PETITION ULTIMATELY WAS DISMISSED
ON MAY 14, 1974, THE AFGE WAS ENTITLED TO A 90 DAY PERIOD IN WHICH TO
NEGOTIATE A NEW AGREEMENT WITHOUT THE THREAT OF A PETITION BEING FILED
CHALLENGING ITS MAJORITY STATUS IN THE EXISTING UNIT. ACCORDINGLY, I
FIND THAT THE INSTANT RA PETITION FILED BY THE ACTIVITY WITHIN THE
PRESCRIBED 90 DAY PERIOD WAS UNTIMELY. THEREFORE, I SHALL ORDER THAT
THE PETITION FILED IN CASE NO. 61-2350(RA) BE DISMISSED.
ALTHOUGH I HAVE FOUND THAT THE INSTANT RA PETITION WAS UNTIMELY
FILED, AND THAT, IN EFFECT, THERE WAS NO BAR TO THE PARTIES NEGOTIATING
FOR A NEW AGREEMENT DURING THE PRESCRIBED 90 DAY PERIOD AFTER THE
DISMISSAL OF THE DR PETITION, BOTH THE ASSISTANT SECRETARY AND THE
FEDERAL LABOR RELATIONS COUNCIL (FLRC) HAVE INDICATED THAT WHEN AN RA
PETITION IS FILED IN GOOD FAITH, THE PETITIONING AGENCY SHOULD BE
PERMITTED TO REMAIN NEUTRAL DURING THE PENDENCY OF SUCH PETITION AND BE
GIVEN A REASONABLE OPPORTUNITY TO COMPLY WITH THE CONSEQUENCES WHICH
FLOW FROM ANY REPRESENTATION DECISION BY THE ASSISTANT SECRETARY BEFORE
INCURRING THE RISK OF AN UNFAIR LABOR PRACTICE FINDING. /6/ UNDER THESE
CIRCUMSTANCES, AND NOTING THAT THE EVIDENCE WAS INSUFFICIENT TO
ESTABLISH THAT THE ACTIVITY'S RA PETITION IN THIS MATTER WAS, IN FACT,
NOT FILED IN GOOD FAITH, I FIND, THAT DURING ITS PENDENCY, THE ACTIVITY
WAS NOT OBLIGATED TO MEET AND CONFER WITH THE AFGE WITH RESPECT TO A NEW
AGREEMENT. ACCORDINGLY, I CONCLUDE THAT THE UNFAIR LABOR PRACTICE
COMPLAINT IN CASE NO. 61-2367(CA) MUST BE DISMISSED. IT SHOULD BE
NOTED, HOWEVER, THAT THE CONSEQUENCE OF MY DETERMINATION ABOVE WITH
RESPECT TO THE TIMELINESS OF THE RA PETITION IS THAT THE PARTIES SHOULD
NOW BE AFFORDED FROM THE DATE OF THIS DECISION THE 90 DAY PERIOD
PROVIDED FOR IN SECTION 202.3(D) OF THE REGULATIONS, FREE FROM ANY NEW
PETITION CHALLENGING THE REPRESENTATION STATUS OF THE AFGE, IN WHICH TO
NEGOTIATE IN GOOD FAITH FOR THE PURPOSE OF CONSUMMATING A NEW NEGOTIATED
AGREEMENT.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 61-2350(RA) BE,
AND IT HEREBY IS, DISMISSED.
IT IS FURTHER ORDERED THAT THE COMPLAINT IN CASE NO. 61-2367(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JULY 29, 1975
/1/ THE DENVER AIRWAY FACILITIES HUB SECTOR, FAA, ROCKY MOUNTAIN
REGION, DOT, AURORA, COLORADO, WHICH IS THE ACTIVITY-PETITIONER IN CASE
NO. 61-2350(RA) AND THE RESPONDENT IN CASE NO. 61-2367(CA), AND THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2665, AFL-CIO, WHICH
IS THE LABOR ORGANIZATION IN CASE NO. 61-2350(RA) AND THE COMPLAINANT IN
CASE NO. 61-2367(CA) ARE HEREINAFTER REFERRED TO AS THE ACTIVITY AND
THE AFGE, RESPECTIVELY.
/2/ SECTION 202.3(D) OF THE ASSISTANT SECRETARY'S REGULATIONS
PROVIDES, "WHEN THERE IS AN AGREEMENT SIGNED AND DATED BY THE ACTIVITY
AND THE INCUMBENT EXCLUSIVE REPRESENTATIVE HAVING A TERM NOT EXCEEDING
THREE (3) YEARS FROM THE DATE IT WAS SIGNED, AND A PETITION HAS BEEN
FILED CHALLENGING THE REPRESENTATION STATUS OF THE INCUMBENT EXCLUSIVE
REPRESENTATIVE AND THE PETITION IS SUBSEQUENTLY WITHDRAWN OR DISMISSED
LESS THAN SIXTY (60) DAYS PRIOR TO THE TERMINAL DATE OF THAT AGREEMENT,
OR ANY TIME THEREAFTER, THE ACTIVITY AND INCUMBENT EXCLUSIVE
REPRESENTATIVE SHALL BE AFFORDED A NINETY (90) DAY PERIOD FROM THE DATE
THE WITHDRAWAL IS APPROVED OR THE PETITION IS DISMISSED FREE FROM RIVAL
CLAIM WITHIN WHICH TO CONSUMMATE AN AGREEMENT: PROVIDED, HOWEVER, THAT
THE PROVISIONS OF THIS PARAGRAPH SHALL NOT BE APPLICABLE WHEN ANY OTHER
PETITION IS PENDING WHICH HAS BEEN FILED PURSUANT TO PARAGRAPH (C) OF
THIS SECTION."
/3/ IN DISCUSSING TIMELINESS REQUIREMENTS AS APPLIED TO RA PETITIONS
WHICH QUESTION MAJORITY STATUS, THE ADMINISTRATIVE LAW JUDGE, ON PAGE 7
OF HIS REPORT AND RECOMMENDATION, INADVERTENTLY CITED THE HOLDING IN
FEDERAL AVIATION ADMINISTRATION, JACKSONVILLE AIR ROUTE TRAFFIC CONTROL
CENTER, A/SLMR NO. 194, AS BEING A/SLMR NO. 119. THIS INADVERTENT ERROR
IS HEREBY CORRECTED.
/4/ SECTION 202.3(C) OF THE ASSISTANT SECRETARY'S REGULATIONS
PROVIDES, "WHEN AN AGREEMENT COVERING A CLAIMED UNIT HAS BEEN SIGNED AND
DATED BY THE ACTIVITY AND THE INCUMBENT EXCLUSIVE REPRESENTATIVE, A
PETITION FOR EXCLUSIVE RECOGNITION OR OTHER ELECTION PETITION WILL BE
CONSIDERED TIMELY WHEN FILED AS FOLLOWS:
(1) NOT MORE THAN NINETY (90) DAYS AND NOT LESS THAN SIXTY (60) DAYS
PRIOR TO THE TERMINAL DATE OF AN AGREEMENT HAVING A TERM OF THREE (3)
YEARS OR LESS FROM THE DATE IT WAS SIGNED AND DATED BY THE ACTIVITY AND
THE INCUMBENT EXCLUSIVE REPRESENTATIVE; OR
(2) NOT MORE THAN NINETY (90) DAYS AND NOT LESS THAN SIXTY (60) DAYS
PRIOR TO THE EXPIRATION OF THE INITIAL THREE (3) YEAR PERIOD OF AN
AGREEMENT HAVING A TERM OF MORE THAN THREE (3) YEARS FROM THE DATE IT
WAS SIGNED AND DATED BY THE ACTIVITY AND THE INCUMBENT EXCLUSIVE
REPRESENTATIVE; OR
(3) ANY TIME WHEN UNUSUAL CIRCUMSTANCES EXIST WHICH SUBSTANTIALLY
AFFECT THE UNIT OR THE MAJORITY REPRESENTATION.
/5/ SEE HEADQUARTERS, U.S. ARMY TRAINING AND DOCTRINE COMMAND
(TRADOC), FT. MONROE, VIRGINIA, A/SLMR NO. 507; U.S. DEPARTMENT OF
TRANSPORTATION, FEDERAL AVIATION AGENCY, NATIONAL AVIATION FACILITIES
EXPERIMENTAL CENTER, ATLANTIC CITY, NEW JERSEY, A/SLMR NO. 482; IDAHO
PANHANDLE NATIONAL FORESTS, U.S. DEPARTMENT OF AGRICULTURE, A/SLMR NO.
394; AND HEADQUARTERS, U.S. ARMY AVIATION SYSTEMS COMMAND, ST. LOUIS,
MISSOURI, A/SLMR NO. 160. SEE ALSO SECTION 202.1(C) OF THE REGULATIONS,
AS AMENDED ON MAY 7, 1975.
/6/ SEE DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, YUMA
PROJECTS OFFICE, YUMA, ARIZONA, A/SLMR NO. 401 AND HEADQUARTERS, UNITED
STATES ARMY AVIATION SYSTEMS COMMAND, ST. LOUIS, MISSOURI, A/SLMR NO.
168, FLRC NO. 72A-30.
DENVER AIRWAY FACILITIES HUB SECTOR
FAA, ROCKY MOUNTAIN REGION, DOT
AURORA, COLORADO
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2665, AFL-CIO
AND
DENVER AIRWAY FACILITIES HUB SECTOR
FAA, ROCKY MOUNTAIN REGION, DOT
AURORA, COLORADO
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2665, AFL-CIO
E. L. EMBREY
CHIEF UNION-MANAGEMENT RELATIONS
OFFICE OF LABOR RELATIONS, FAA
WASHINGTON, D.C. 20591
KENNETH BULL
NATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2665
5001 S. WASHINGTON
ENGLEWOOD, COLORADO 80110
BEFORE: WILLIAM NAIMARK
PURSUANT TO A NOTICE OF CONSOLIDATED HEARING ON REPRESENTATIVE'S
STATUS PETITION AND COMPLAINT ISSUED ON OCTOBER 22, 1974, BY THE
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES ADMINISTRATION
OF THE UNITED STATES DEPARTMENT OF LABOR, KANSAS CITY REGION, A HEARING
IN THE ABOVE-CAPTIONED CASES /1/ WAS HELD BEFORE THE UNDERSIGNED ON
JANUARY 14, 1975 AT DENVER, COLORADO.
THE PROCEEDINGS HEREIN WERE INITIATED UNDER EXECUTIVE ORDER 11491, AS
AMENDED (HEREIN CALLED THE ORDER) BY THE FILING OF A REPRESENTATIVE'S
STATUS (RA) PETITION ON JUNE 21, 1974 BY DENVER AIRWAY FACILITIES, HUB
SECTOR, FAA, ROCKY MOUNTAIN REGION, DOT, AURORA, COLORADO (HEREIN
CALLED, AT TIMES THE ACTIVITY OR RESPONDENT). A REPRESENTATION ELECTION
IS SOUGHT BY THE ACTIVITY WHICH ALLEGED IT HAD A GOOD FAITH DOUBT THAT
THE CURRENTLY RECOGNIZED EXCLUSIVE BARGAINING REPRESENTATIVE REPRESENTED
A MAJORITY OF THE EMPLOYEES IN AN APPROPRIATE UNIT. THEREAFTER THE
ACTIVITY FILED FIRST, SECOND, AND THIRD AMENDED PETITIONS ON JULY 19,
25, AND AUGUST 5, 1974 RESPECTIVELY.
A COMPLAINT WAS FILED ON JULY 19, 1974 BY THE "CURRENTLY RECOGNIZED"
EXCLUSIVE BARGAINING REPRESENTATIVE, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2665, AFL-CIO (HEREIN CALLED, AT TIMES, THE UNION OR
THE COMPLAINANT) AGAINST THE RESPONDENT ACTIVITY. THE COMPLAINT ALLEGED
A VIOLATION OF 19(A)(1) AND (6) OF THE ORDER BASED ON A REFUSAL TO
NEGOTIATE WITH THE UNION. COMPLAINANT ASSERTS IT IS THE BARGAINING
REPRESENTATIVE AND THAT RESPONDENT HAD NO GOOD FAITH DOUBT AS TO ITS
MAJORITY STATUS. THE RESPONDENT DENIES THE ALLEGED VIOLATION, ASSERTING
IT HAD A GOOD FAITH DOUBT THAT THE UNION WAS STILL THE MAJORITY
REPRESENTATIVE OF ITS EMPLOYEES. /2/
BOTH PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. THEREAFTER, THE PARTIES FILED BRIEFS WHICH
HAVE BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS:
1. ON OCTOBER 21, 1969 THE UNION HEREIN WAS GRANTED VOLUNTARY
RECOGNITION AS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF THE ACTIVITY'S
NON-SUPERVISORY ELECTRONIC TECHNICIANS AND WAGE GRADE EMPLOYEES ASSIGNED
TO THE AIRWAYS FACILITIES SECTOR, DENVER, COLORADO. /3/
2. THE ACTIVITY HAS CONTINUED TO RECOGNIZE THE UNION HEREIN AND BOTH
WERE PARTIES TO A CONTRACT, EFFECTIVE BY ITS TERMS FROM MARCH 31, 1972
UNTIL MARCH 31, 1974, COVERING THE EMPLOYEES IN THE AFOREMENTIONED UNIT.
3. ON JANUARY 28, 1974 /4/ THE UNION FILED A WRITTEN STATEMENT WITH
RESPONDENT ACTIVITY WHICH RECITED THAT IT DESIRED TO RENEGOTIATE ITS
CONTRACT WITH THE ACTIVITY BEFORE RENEWAL THEREOF.
4. BY LETTER DATED JANUARY 29, RESPONDENT ACTIVITY REPLIED THAT IT
WAS AGREEABLE TO RENEGOTIATIONS, AND IT REQUESTED THAT THE UNION SUBMIT
PROPOSALS IN SUFFICIENT TIME TO PERMIT THE ACTIVITY TO STUDY THEM AND
SUBMIT COUNTER PROPOSALS.
5. RONALD L. OWENS, AN EMPLOYEE OF THE ACTIVITY HEREIN, FILED A
DECERTIFICATION PETITION ON JANUARY 30 WITH THE DEPARTMENT OF LABOR.
THIS RESULTED IN RESPONDENT'S WRITING A LETTER TO THE UNION DATED
FEBRUARY 1, STATING THAT THE PENDING REPRESENTATION MATTER PRECLUDED IT
FROM TAKING ANY FURTHER ACTION TOWARD NEGOTIATION UNTIL THE MATTER WAS
RESOLVED.
6. A LETTER /5/ DATED FEBRUARY 21 WAS SENT FROM DALE JOHNSON, VICE
PRESIDENT OF THE LOCAL UNION HEREIN, TO JAMES BRUCE, ASSISTANT SECTOR
MANAGER OF THE ACTIVITY, REAFFIRMING THE DESIRE TO RENEGOTIATE THE
CONTRACT. JOHNSON STATED THE UNION WOULD SUBMIT GROUND RULES AND ITS
PROPOSED AGREEMENT ON MARCH 3, AND HE SUGGESTED THE PARTIES MEET ON
MARCH 15.
7. BRUCE REPLIED TO JOHNSON BY LETTER /6/ DATED FEBRUARY 22
REITERATING THAT THE ACTIVITY COULD NOT COMMENCE NEGOTIATIONS WHILE THE
REPRESENTATIVE PETITION (DR) FILED BY OWENS WAS PENDING BEFORE THE
ASSISTANT SECRETARY.
8. THE PARTIES AGREED IN MARCH TO EXTEND THE CURRENT CONTRACT FOR 90
DAYS, OR UNTIL A DECISION WAS MADE ON THE DR PETITION, BUT THE ACTIVITY
ADHERED TO ITS REFUSAL TO NEGOTIATE DURING THE PENDENCY OF THE
DECERTIFICATION PROCEEDING.
9. THEREAFTER THE ASSISTANT REGIONAL DIRECTOR, LABOR-MANAGEMENT
SERVICES, DOL, KANSAS CITY, MISSOURI DISMISSED THE DECERTIFICATION
PETITION ON THE GROUND THAT IT WAS UNTIMELY FILED UNDER SECTION 202.3 OF
THE REGULATIONS.
10. ON MAY 14, THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT
RELATIONS, DOL, DENIED A REQUEST FOR REVIEW OF THE AFORESAID DISMISSAL
OF THE DECERTIFICATION PETITION. HE AGREED WITH THE DETERMINATION MADE
BY THE ASSISTANT REGIONAL DIRECTOR THAT THE PETITION WAS UNTIMELY FILED.
/7/
11. ON JUNE 19, ARLON J. BOLD, AN EMPLOYEE OF THE ACTIVITY,
PRESENTED TO JAMES BRUCE A STATEMENT /8/ SIGNED BY 34 OF THE 53
EMPLOYEES IN THE UNIT. THE SIGNERS ASSERTED THAT THE CURRENTLY
RECOGNIZED OR CERTIFIED EXCLUSIVE REPRESENTATIVE NO LONGER REPRESENTED A
MAJORITY OF THE EMPLOYEES IN THE UNIT.
12. OF THE 35 EMPLOYEES WHO SIGNED THE STATEMENT PRESENTED TO THE
ACTIVITY ON JUNE 19, FIFTEEN SIGNED IT THAT SAME MONTH (JUNE), SEVENTEEN
SIGNED 4 1/2 MONTHS EARLIER AT THE END OF JANUARY, AND THREE SIGNATURES
WERE UNDATED.
13. EMPLOYEES ENOCH WRIGHT, ELTON JOHNSON, AND LOUIS PHILLIPI
TESTIFIED IT WAS THEIR IMPRESSION THAT THEY SIGNED THE AFORESAID
STATEMENT TO GET AN ELECTION TO DETERMINE OF THE UNION WOULD CONTINUE TO
REPRESENT THEM. EMPLOYEE KENT BAYNE TESTIFIED HE WAS TOLD BY BOLD THEY
WOULD SEE IF ANY ELECTION COULD BE HELD TO DETERMINE WHO REPRESENTED THE
WORKERS.
14. TWO DAYS LATER, ON JUNE 21 BRUCE FILED, ON BEHALF OF THE
ACTIVITY, THE REPRESENTATIVE STATUS (RA) PETITION HEREIN. MANAGEMENT
REFUSED TO RENEGOTIATE THE CONTRACT BASED ON THE PENDING RA PETITION
DESPITE REPEATED REQUESTS BY THE UNION TO DO SO. IT CONTINUED TO ASSERT
THAT A GOOD FAITH DOUBT EXISTED AS TO THE UNION'S MAJORITY STATUS.
15. BETWEEN MAY 17 AND ABOUT JUNE 19 JOHNSON WAS ON DETAIL AT THE
ACTIVITY'S TRAINING SCHOOL IN OKLAHOMA CITY. DURING THIS PERIOD JOHNSON
WROTE BRUCE SAYING THE UNION WANTED TO ADD ADDITIONAL ITEMS TO THE
CONTRACT, BUT NO SPECIFIC DEMAND WAS MADE TO ENTER INTO NEGOTIATIONS.
16. BRUCE TESTIFIED THAT THE ACTIVITY DID NOT EXPRESS ANY GOOD FAITH
DOUBT OF THE UNION'S MAJORITY STATUS PRIOR TO JUNE 19, AND IT CONSIDERED
THE UNION AS THE BARGAINING REPRESENTATIVE. FURTHER, THAT HE HAD MENTAL
RESERVATIONS REGARDING THE UNION'S MAJORITY STATUS SINCE HE LEARNED
AFTER THE DR WAS FILED THAT 15-16 EMPLOYEES, OUT OF A UNIT OF
APPROXIMATELY 54 EMPLOYEES, WERE ON DUES WITHHOLDING.
17. IN ORDER TO PRESERVE NEUTRALITY, AND TO SHOW GOOD FAITH,
RESPONDENT HAS CONTINUED TO EXTEND THE CONTRACT ON A MONTH-TO-MONTH
BASIS UNTIL THE RESOLUTION OF THESE PROCEEDINGS.
COMPLAINANT CONTENDS THAT THE ACTIVITY HAD NO GOOD FAITH DOUBT THAT
THE UNION REPRESENTED A MAJORITY OF THE EMPLOYEES. THUS, IT ASSERTS A
REFUSAL TO NEGOTIATE WITH THE UNION CONSTITUTED A VIOLATION BY
RESPONDENT OF 19(A)(1) AND (6) OF THE ORDER.
IN SUPPORT OF ITS CONTENTION COMPLAINANT ADVANCES SEVERAL ARGUMENTS.
IT ASSERTS, FIRSTLY, THAT UNDER SECTION 202.3(D) OF THE REGULATIONS THE
ACTIVITY AND THE INCUMBENT UNION (COMPLAINANT HEREIN) WERE ENTITLED TO
90 DAYS FROM THE DISMISSAL OF THE DR PETITION IN WHICH TO NEGOTIATE A
NEW AGREEMENT. THE UNION MAINTAINS IT WAS NOT GIVEN THIS OPPORTUNITY.
THE FILING OF THE RA PETITION BY THE ACTIVITY WAS, IT IS URGED, IN
FURTHER DEROGATION OF THE ACTIVITY'S DUTY TO BARGAIN WITH THE UNION
HEREIN. MOREOVER, THE COMPLAINANT MAINTAINS THAT THE LIST OF NAMES
SUBMITTED TO MANAGEMENT CONTAINED MANY OF THE EMPLOYEES WHO SIGNED THE
DECERTIFICATION PETITION, AND THEREFORE IT SHOULD NOT BE RELIED UPON BY
THE ACTIVITY TO ESTABLISH GOOD FAITH. IT INSISTS THE DR PROCEEDING IS
DEAD; THAT IT SHOULD NOT BE RESURRECTED TO ALLOW THE ACTIVITY TO POSIT
ITS GOOD FAITH DOUBT OF MAJORITY STATUS BASED ON A LIST BEARING MANY OF
THE SIGNATURES ACCOMPANYING THE DR PETITION. THE UNION ARGUES ARGUES
THAT THOSE WHO SIGNED THE DR PETITION DID SO TO COMPLY WITH THE SHOWING
OF INTEREST REQUIREMENT. SINCE AN RA PETITION REQUIRES NO INTEREST
SHOWING, THE ACTIVITY COULD NOT RELY ON THE SIGNATURES ACCOMPANYING THE
DR PETITION TO SUPPORT A GOOD FAITH DOUBT OF THE UNION'S MAJORITY.
COMPLAINANT ASSERTS THAT THE RA PETITION MUST SET FORTH SOME INDEPENDENT
STATEMENT SUPPORTING SUCH DOUBT OF MAJORITY STATUS. FINALLY, THE UNION
ARGUES THAT RESPONDENT HAS NO BASIS FOR A GOOD FAITH DOUBT SINCE, UNDER
FEDERAL AVIATION ADMINISTRATION, GREAT LAKES REGION; A/ALMR NO. 250 THE
UNION WAS STILL A VIABLE REPRESENTATIVE; THAT DUES WERE STILL CHECKED
OFF, AND THE UNION PROCESSED GRIEVANCES AS WELL AS DESIGNATED OFFICERS
WHO WERE AVAILABLE FOR NEGOTIATION.
SECTION 202.3(D) OF THE ASSISTANT SECRETARY'S RULES AND REGULATIONS
PROVIDES AS FOLLOWS:
"(D) WHEN THERE IS AN AGREEMENT SIGNED BY THE ACTIVITY AND THE
INCUMBENT EXCLUSIVE
REPRESENTATIVE HAVING A TERM NOT EXCEEDING THREE (3) YEARS FROM THE
DATE IT WAS SIGNED, AND A
PETITION HAS BEEN FILED CHALLENGING THE REPRESENTATION STATUS OF THE
INCUMBENT EXCLUSIVE
REPRESENTATIVE AND THE PETITION IS SUBSEQUENTLY WITHDRAWN OR
DISMISSED LESS THAN SIXTY (60)
DAYS PRIOR TO THE TERMINAL DATE OF THAT AGREEMENT, OR ANY TIME
THEREAFTER, THE ACTIVITY AND
INCUMBENT EXCLUSIVE REPRESENTATIVE SHALL BE AFFORDED A NINETY (90)
DAY PERIOD FROM THE DATE
THE WITHDRAWAL IS APPROVED OR THE PETITION IS DISMISSED FREE FROM
RIVAL CLAIM WITH WHICH TO
CONSUMMATE AN AGREEMENT: . . . "
IT SEEMS CLEAR THAT THE FOREGOING PROVISION WAS INTENDED TO GOVERN
THE TIMELINESS OF RIVAL PETITIONS FILED TO CHALLENGE THE REPRESENTATIVE
STATUS OF AN INCUMBENT UNION. THE LANGUAGE OF THE REGULATION BESPEAKS
OF A 90-DAY PERIOD - FREE FROM RIVAL CLAIMS - DURING WHICH THE ACTIVITY
AND THE INCUMBENT EXCLUSIVE REPRESENTATIVE MAY CONSUMMATE AN AGREEMENT.
I DO NOT CONSTRUE THIS SECTION AS INSULATING THE EXISTENCE OF A GOOD
FAITH DOUBT OF MAJORITY STATUS FOR 90 DAYS AFTER DISMISSAL OF THE
DECERTIFICATION PETITION. WHILE COMPLAINANT AVERS THAT IT WAS ENTITLED
TO A PERIOD OF 90 DAYS FROM MAY 14 TO NEGOTIATE A CONTRACT, I AM
CONSTRAINED TO REJECT THIS ARGUMENT. NOT ONLY DOES 202.3(D) PURPORT TO
OUTLAW ONLY RIVAL CLAIMS WHERE THE INCUMBENT'S REPRESENTATIVE STATUS WAS
UNSUCCESSFULLY CHALLENGED, BUT AN EMPLOYER SHOULD BE PERMITTED TO RAISE
DOUBTS, BEYOND THE CERTIFICATION YEAR, AS TO WHETHER THE UNION STILL
REPRESENTS A MAJORITY OF ITS EMPLOYEES. THUS, AS WAS STATED IN FEDERAL
AVIATION ADMINISTRATION, JACKSONVILLE AIR ROUTE TRAFFIC CONTROL CENTER,
A/SLMR NO. 119 THE ISSUE IS NOT WHETHER THE PARTIES WERE ENTITLED TO
NEGOTIATE AN AGREEMENT FREE FROM RIVAL CLAIMS, BUT WHETHER AN ACTIVITY
HAD REASONABLE CAUSE TO BELIEVE IT WAS NEGOTIATING WITH A MINORITY
UNION.
THE CASES ARE LEGION IN THE PRIVATE SECTOR THAT A PENDING
DECERTIFICATION PETITION, ABSENT UNFAIR LABOR PRACTICES BY THE EMPLOYER,
WILL ENTITLE THE LATTER TO REFUSE TO CONTINUE BARGAINING NEGOTIATIONS
WITH THE UNION. 209 NLRB NO. 172. NEWHOUSE BROADCASTING CO. 197 NLRB
NO. 148; AMERICAN EXPRESS RESERVATIONS, INC. THE QUESTION CONCERNING
REPRESENTAREQUIRES, IN THOSE INSTANCES, THE EMPLOYER TO REMAIN NEUTRAL
UNTIL SUCH ISSUE IS RESOLVED. THE BODY OF CASES DECIDED BY THE
ASSISTANT SECRETARY LENDS SUPPORT TO THE CONCLUSION THAT THE FEDERAL
SECTOR WILL LIKEWISE EXCUSE AN ACTIVITY FROM ITS OBLIGATION TO BARGAIN
WITH AN INCUMBENT DURING A PENDING DR PROCEEDING. THUS, IN THE INSTANT
CASE, RESPONDENT ACTIVITY WAS OBVIOUSLY JUSTIFIED IN SUSPENDING OR
DISCONTINUING NEGOTIATIONS BETWEEN JANUARY AND MAY 14 - THE DATE WHEN
THE ASSISTANT SECRETARY "AFFIRMED" THE DISMISSAL OF THE DECERTIFICATION
PETITION. IN THE FACE OF A REPRESENTATION QUESTION, THE ACTIVITY MAY
THUS EXPRESS ITS GOOD FAITH DOUBT OF MAJORITY STATUS.
WHILE COMPLAINANT DOES NOT NECESSARILY DISAGREE WITH THE ACTIVITY'S
REFUSAL TO NEGOTIATE DURING THE PENDENCY OF THE DR PROCEEDING, IT
CONSTRUES THE FILING OF THE RA PETITION BY THE ACTIVITY AS EXHIBITING A
LACK OF GOOD FAITH DOUBT AS TO THE UNION'S MAJORITY. THE UNION QUARRELS
WITH THE ACTIVITY'S RELIANCE UPON THE STATEMENT SIGNED BY 34 EMPLOYEES
DISAVOWING THE UNION'S REPRESENTATIVE STATUS, WHICH BOLD PRESENTED TO
MANAGEMENT ON JUNE 19, TO ESTABLISH A DOUBT OF MAJORITY STATUS.
DESPITE THIS CONTENTION, I AM CONVINCED THE ACTIVITY WAS WITHIN ITS
RIGHTS IN FILING THE RA PETITION AFTER RECEIVING THE EMPLOYEES
DISAFFIRMANCE OF UNION REPRESENTATION. NOT ONLY DO THE REGULATIONS
ESTABLISH AN RA PETITION AS THE PROPER VEHICLE TO QUESTION A UNION'S
MAJORITY, BUT I FIND NOTHING IN THE RECORD WHICH MILITATES AGAINST THE
ACTIVITY'S ACCEPTANCE OF THE STATEMENT SUBMITTED TO IT.
WHILE 15 EMPLOYEES SIGNED THE DISAVOWAL 4 1/2 MONTHS PRIOR TO ITS
SUBMISSION TO RESPONDENT, I DO NOT CONSIDER THE SIGNATURES SO STALE AS
TO PRECLUDE RELIANCE UPON BY THE EMPLOYER. IN THE PRIVATE SECTOR THE
NATIONAL LABOR RELATIONS BOARD ADOPTED A RULE THAT APPLICATION CARDS
OBTAINED MORE THAN ONE YEAR PRIOR TO A BARGAINING REQUEST WERE TOO STALE
TO BE COUNTED IN DETERMINING MAJORITY. SEE BLADE-TRIBUNE PUBLISHING CO.
161 NLRB 1512. CERTAINLY, IN THE CASE AT BAR, THE EXPRESSIONS OF
DISAFFIRMANCE MADE 4 1/2 MONTHS EARLIER BY SOME EMPLOYEES SHOULD NOT BE
DEEMED SO UNRELIABLE AS TO BE WORTHY OF ACCEPTANCE BY MANAGEMENT.
FURTHER, ONLY ONE EMPLOYEE, KENT BAYNE, TESTIFIED HE WAS TOLD, WHEN HE
SIGNED THE STATEMENT, THAT THE EMPLOYEES WOULD SEE IF AN ELECTION COULD
BE HELD TO DETERMINE WHO REPRESENTS THE WORKERS. THREE OTHER WITNESSES
PRESENTED BY COMPLAINANT TESTIFIED IT WAS THEIR "IMPRESSION" THAT THEY
SIGNED TO GET AN ELECTION. ALTHOUGH THE BOARD WILL OFTEN REJECT UNION
APPLICATION CARDS WHERE THE SIGNERS ARE TOLD THE PURPOSE OF THE CARD IS
SOLELY TO OBTAIN AN ELECTION, SUCH DOCTRINE IS INAPPLICABLE HEREIN. NOT
ONLY DOES THE STATEMENT DECLARE NO SUCH PURPOSE - EXPLICITLY STATING
THAT THE SIGNERS REJECT THE UNION AS THEIR REPRESENTATIVE - BUT THE
RECORD DOES NOT SUPPORT THE CONCLUSION THAT EMPLOYEES WERE ADVISED THAT
THE SOLE AIM IN SIGNING THE STATEMENT WAS TO OBTAIN AN ELECTION. IN
THIS POSTURE, I CANNOT CONCLUDE THAT THE STATEMENT SHOULD BE
INVALIDATED. SEE AREA DISPOSAL, INC., 200 NLRB NO. 54.
THE UNION HEREIN HAS BEEN THE COLLECTIVE BARGAINING REPRESENTATIVE OF
RESPONDENT'S EMPLOYEES IN AN APPROPRIATE UNIT SINCE 1969. MOREOVER, THE
RELATIONSHIP BETWEEN THE PARTIES CONTINUED UNDISTURBED UNTIL THE
DECERTIFICATION PETITION WAS FILED IN JANUARY, 1974 - TWO MONTHS PRIOR
TO THE TERMINATION DATE OF THE CONTRACT. IN ORDER TO JUSTIFY ITS
REFUSAL TO CONTINUE TO NEGOTIATE WITH THE UNION, THE ACTIVITY MUST
ESTABLISH A GOOD FAITH DOUBT, ON ITS PART, THAT THE UNION STILL
REPRESENTS THE MAJORITY OF ITS EMPLOYEES. I BELIEVE RESPONDENT HAD
SUFFICIENT REASON TO QUESTION THE UNION'S MAJORITY WHEN IT RECEIVED, ON
JUNE 19, THE STATEMENT SIGNED BY 35 EMPLOYEES STATING THAT THE UNION WAS
NO LONGER THEIR BARGAINING REPRESENTATIVE. THE FACT THAT NEARLY HALF OF
THE SIGNERS ENDORSED IT SOME 4 MONTHS EARLIER, OR THAT IT MAY HAVE BEEN
UTILIZED IN THE FILING OF THE DR PETITION, DOES NOT DETRACT FROM ITS
EFFECTIVENESS AS AN INDICATION THAT THE EMPLOYEES NO LONGER DESIRE THE
UNION TO REPRESENT THEM. SUCH AN AVOWAL GIVES RISE TO A CLEAR DOUBT ON
MANAGEMENT'S PART THAT THE UNION IS STILL THE MAJORITY REPRESENTATIVE.
MOREOVER, IN THE ABSENCE OF SOME ACTS OF INTERFERENCE ON THE PART OF THE
ACTIVITY, I AM PERSUADED THAT SUCH DOUBT WAS ONE OF GOOD FAITH; AND
THAT, IN THE FACE OF SUCH A REJECTION BY THE EMPLOYEES, THE FILING OF
THE RA PETITION WAS NOT A TACTICAL MANEUVER ON THE PART OF THE EMPLOYER
DESIGNED TO ESCAPE ITS OBLIGATION TO BARGAIN UNDER THE ORDER. /9/
ACCORDINGLY, I CONCLUDE RESPONDENT DID NOT REFUSE TO NEGOTIATE IN
VIOLATION OF 19(A)(1) OR (6) THEREOF.
HAVING FOUND THAT RESPONDENT HAS NOT ENGAGED IN CONDUCT VIOLATIVE OF
SECTIONS 19(A)(1) AND (6) OF THE ORDER, I RECOMMEND THAT THE COMPLAINT
HEREIN BE DISMISSED IN ITS ENTIRETY.
HAVING FOUND, AFTER EVALUATING THE EVIDENCE SUBMITTED HEREIN THAT THE
ACTIVITY HAD A GOOD FAITH DOUBT OF THE UNION'S MAJORITY STATUS, I WOULD
CONCLUDE, AND RECOMMEND, THAT IT WOULD EFFECTUATE THE POLICIES OF THE
ORDER TO ACCORD THE UNIT EMPLOYEES AN ELECTION TO DETERMINE WHETHER THEY
DESIRE THE UNION TO BE THEIR BARGAINING REPRESENTATIVE. ACCORDINGLY, I
RECOMMEND THE ASSISTANT SECRETARY DIRECT AN ELECTION IN THE APPROPRIATE
UNIT.
DATED: APRIL 24, 1975
WASHINGTON, D.C.
/1/ BOTH CASES WERE CONSOLIDATED FOR HEARING BY ORDER DATED OCTOBER
22, 1974.
/2/ THE APPROPRIATENESS OF THE UNIT IS NOT IN ISSUE.
/3/ IN 1971, DUE TO A REORGANIZATION, EMPLOYEES AT OTHER LOCATIONS IN
COLORADO, AS CHEYENNE, LARAMIE, AND AKRON, WERE ADDED TO THE UNIT BY
AGREEMENT OF THE PARTIES.
/4/ UNLESS OTHERWISE INDICATED, ALL DATES HEREINAFTER MENTIONED ARE
IN 1974.
/5/ JOINT EXHIBIT 5
/6/ JOINT EXHIBIT 6
/7/ A/S EXHIBIT 1H
/8/ JOINT EXHIBIT 14C
/9/ RESPONDENT 'S OBLIGATION TO BARGAIN CONTINUED BETWEEN MAY 14 AND
JUNE 19 WHEN IT RECEIVED THE STATEMENT OF DISAVOWAL SIGNED BY THE
EMPLOYEES. HOWEVER, THE RECORD REFLECTS COMPLAINANT'S REPRESENTATIVE,
JOHNSON, WAS ABSENT FROM DENVER DURING THIS PERIOD; THAT HE DID NOT
REQUEST RESPONDENT TO NEGOTIATE UNTIL AFTER HIS RETURN ABROAD JUNE 17.
ACCORDINGLY, I WOULD NOT FIND A VIOLATION OF THE DUTY TO BARGAIN DURING
THE AFORESAID PERIOD.
5 A/SLMR 534; P. 457; CASE NO. 52-5566(CA); JULY 29, 1975.
FEDERAL AVIATION ADMINISTRATION,
MUSKEGON AIR TRAFFIC CONTROL TOWER
A/SLMR NO. 534
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION - MEBA, AFL-CIO,
(PATCO), ALLEGING ESSENTIALLY THAT THE RESPONDENT VIOLATES SECTION
19(A)(1) AND (6) OF THE ORDER BY: (1) REFUSING THE PATCO, THE EXCLUSIVE
BARGAINING REPRESENTATIVE, AN APPROPRIATE OPPORTUNITY TO REPRESENT AN
EMPLOYEE FACING A POSSIBLE SUSPENSION IN DISCUSSIONS WITH THE ACTIVITY
CONCERNING THE SUSPENSION, AND (2) FAILING TO PROVIDE THE EMPLOYEE AND
THE PATCO WITH ALL RELEVANT INFORMATION REGARDING THE PROPOSED
SUSPENSION. THE RESPONDENT CONTENDED, AMONG OTHER THINGS, THAT THE
PATCO WAR PRECLUDED BY SECTION 19(D) OF THE ORDER FROM FILING A
COMPLAINT IN THIS MATTER INASMUCH AS IT HAD PREVIOUSLY FILED A GRIEVANCE
UNDER THE PARTIES' NEGOTIATED GRIEVANCE PROCEDURE ADDRESSED TO THE SAME
ISSUES.
THE ADMINISTRATIVE LAW JUDGE FOUND, AND THE ASSISTANT SECRETARY
CONCURRED, THAT THE PATCO WAS NOT PRECLUDED BY SECTION 19(D) OF THE
ORDER FROM FILING AN UNFAIR LABOR PRACTICE COMPLAINT CONCERNING
LIMITATIONS PLACED ON THE UNION REPRESENTATIVE AT A MEETING HELD ON
NOVEMBER 19, 1973, BETWEEN THE TOWER CHIEF, THE EMPLOYEE INVOLVED, AND
HIS UNION REPRESENTATIVE TO DISCUSS PROPOSED DISCIPLINE OF THE EMPLOYEE,
EVEN THOUGH THIS ISSUE HAD BEEN INCLUDED IN A PREVIOUSLY FILED GRIEVANCE
THAT HAD BEEN REJECTED AS UNTIMELY. IN THIS REGARD, IT WAS NOTED THAT
THE UNTIMELY FILED GRIEVANCE DID NOT IN ANY REAL SENSE INVOKE THE
GRIEVANCE PROCEDURE AND, THEREFORE, SECTION 19(D) DID NOR PRECLUDE
CONSIDERATION OF THE MATTER UNDER THE UNFAIR LABOR PRACTICE PROCEDURES
OF THE EXECUTIVE ORDER. HOWEVER, WITH RESPECT TO THIS ASPECT OF THE
UNFAIR LABOR PRACTICE COMPLAINT, THE ASSISTANT SECRETARY FOUND THAT THE
RESPONDENT'S CONDUCT DID NOT VIOLATE SECTION 19(A)(1) AND (6) OF THE
ORDER AS THE MEETING INVOLVED WAS NOT A "FORMAL DISCUSSION" WITHIN THE
MEANING OF SECTION 10(E) OF THE ORDER; THE UNION REPRESENTATIVE DID, IN
FACT, ULTIMATELY PARTICIPATE IN A SUBSTANTIAL MANNER IN THE DISCUSSION
AT THE MEETING; AND THE TOWER CHIEF'S POSITION CONCERNING THE ROLE THE
UNION REPRESENTATIVE REFLECTED ESSENTIALLY HIS GOOD FAITH INTERPRETATION
OF THE NEGOTIATED AGREEMENT, AS DISTINGUISHED FROM A CLEAR UNILATERAL
BREACH OF THE NEGOTIATED AGREEMENT.
THE ASSISTANT SECRETARY FOUND ALSO THAT HE WAS PRECLUDED BY SECTION
19(D) FROM CONSIDERING THE ASPECT OF THE UNFAIR LABOR PRACTICE COMPLAINT
CONCERNING THE ALLEGED DENIAL OF ACCESS TO CERTAIN INFORMATION ON THE
EMPLOYEE'S EMPLOYMENT RECORD CARD. IN THIS REGARD, THE EVIDENCE
ESTABLISHED THAT THE GRIEVANCE WHICH HAD BEEN FILED PREVIOUSLY RAISED
THE SAME ISSUE AND THE RESPONSE TO THE GRIEVANCE MADE NO SPECIFIC
REFERENCE TO THIS ISSUE. UNDER THESE CIRCUMSTANCES, THE ASSISTANT
SECRETARY, NOTING THAT THE COMPLAINANT DID NOT CHOOSE TO PURSUE ITS
GRIEVANCE APPEAL RIGHTS IN THIS REGARD OR SEEK A SPECIFIC RESPONSE FROM
THE RESPONDENT, CONCLUDED THAT SECTION 19(D) PRECLUDED THE PATCO FROM
RAISING THIS ISSUE UNDER THE UNFAIR LABOR PRACTICE PROCEDURES.
ACCORDINGLY, THE ASSISTANT SECRETARY DISMISSED THE COMPLAINT IN ITS
ENTIRETY.
FEDERAL AVIATION ADMINISTRATION,
MUSKEGON AIR TRAFFIC CONTROL TOWER
AND
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION - MEBA, AFL-CIO
ON MARCH 3, 1975, ADMINISTRATIVE LAW JUDGE JOHN H. FENTON ISSUED HIS
RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES AND
RECOMMENDING THAT IT TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN THE
ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
THEREAFTER, THE RESPONDENT FILED EXCEPTIONS WITH RESPECT TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER. /1/
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE
ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS THAT NO
PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON
CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
ORDER AND THE ENTIRE RECORD IN THIS CASE, INCLUDING THE RESPONDENT'S
EXCEPTIONS, I HEREBY ADOPT THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS, ONLY TO THE EXTENT CONSISTENT HEREWITH.
THE ADMINISTRATIVE LAW JUDGE FOUND, AMONG OTHER THINGS, THAT SECTION
19(D) OF EXECUTIVE ORDER 11491, AS AMENDED, DID NOT PRECLUDE FURTHER
PROCEEDINGS ON THE INSTANT UNFAIR LABOR PRACTICE COMPLAINT,
NOTWITHSTANDING THE FACT THAT THE COMPLAINANT PREVIOUSLY HAD FILED A
GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE ADDRESSED, IN PART,
TO THE SAME ISSUES AS ARE INVOLVED IN THE INSTANT COMPLAINT. IN THIS
REGARD, THE COMPLAINT ALLEGES THAT ON NOVEMBER 19, 1973, IN A MEETING
WITH THE CHIEF OF THE MUSKEGON AIR TRAFFIC CONTROL TOWER, MR. ALEXANDER
KALVAITIS (WHO WAS THE SUBJECT OF A PROPOSED SUSPENSION) WAS "DENIED THE
RIGHT OF UNION REPRESENTATION IN VIOLATION OF EXECUTIVE ORDER 11491,--
-". THE RECORD REVEALS THAT IN THE EARLY STAGES OF THE MEETING THE
CHIEF OF THE TOWER ATTEMPTED TO LIMIT THE EXTENT OF THE UNION
REPRESENTATIVE'S PARTICIPATION TO THAT OF A "LISTENER." THE GRIEVANCE IN
THIS MATTER WAS FILED ON JANUARY 22, 1974, AND ALLEGED, IN PART, THAT
THE ABOVE DESCRIBED CONDUCT WAS VIOLATIVE OF ARTICLE 6, SECTION 1 OF THE
NEGOTIATED AGREEMENT /2/ AND OF THE EXECUTIVE ORDER. THAT PORTION OF
THE GRIEVANCE WAS DENIED AS UNTIMELY FILED. THE RESPONDENT CONTENDED
THAT SECTION 19(D) OF THE ORDER PRECLUDED CONSIDERATION OF THE INSTANT
UNFAIR LABOR PRACTICE COMPLAINT BECAUSE THE FILING OF THE GRIEVANCE
CONSTITUTED A BINDING SELECTION OF A FORUM, EVEN THOUGH THE MERITS OF
THIS ASPECT OF THE GRIEVANCE WERE NOT CONSIDERED BECAUSE THE GRIEVANCE
IN THIS RESPECT HAD BEEN UNTIMELY FILED. HOWEVER, THE ADMINISTRATIVE
LAW JUDGE CONCLUDED, AND I CONCUR, THAT AS THE UNTIMELY FILED GRIEVANCE
DID NOT IN ANY REAL SENSE INVOKE THE GRIEVANCE PROCEDURE, SECTION 19(D)
DOES NOT PRECLUDE CONSIDERATION OF THE MATTER UNDER THE UNFAIR LABOR
PRACTICE PROCEDURES OF THE EXECUTIVE ORDER. NEVERTHELESS, CONTRARY TO
THE ADMINISTRATIVE LAW JUDGE, I FIND THAT THE RESPONDENT'S CONDUCT IN
THIS INSTANCE DID NOT VIOLATE SECTION 19(A)(1) AND (6) OF THE ORDER.
THUS, AS CONCLUDED BY THE ADMINISTRATIVE LAW JUDGE, THE NOVEMBER 19,
1973, MEETING IN QUESTION DID NOT CONSTITUTE A "FORMAL DISCUSSION"
WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER AT WHICH THE
COMPLAINANT WAS ENTITLED TO BE REPRESENTED. MOREOVER, I FIND THAT,
UNDER THE CIRCUMSTANCES HEREIN, THE ALLEGED LIMITATIONS PLACED ON MR.
KALVAITIS' REPRESENTATIVE, AT THE EARLY STAGES OF THE MEETING IN
QUESTION, WERE NOT IN DEROGATION OF THE COMPLAINANT'S REPRESENTATIVE
STATUS. IN THIS REGARD, IT WAS NOTED THAT THE EVIDENCE ESTABLISHED THAT
KALVAITIS' REPRESENTATIVE DID, IN FACT, ULTIMATELY PARTICIPATE IN A
SUBSTANTIAL MANNER IN THE DISCUSSION WHICH TOOK PLACE AT THE MEETING.
FURTHER, IN MY VIEW, THE RECORD INDICATES THAT THE TOWER CHIEF'S
POSITION CONCERNING THE ROLE OF UNION REPRESENTATIVE AT THE NOVEMBER 19,
1973, MEETING REFLECTED ESSENTIALLY HIS GOOD FAITH INTERPRETATION OF THE
TERM "ACCOMPANIED BY HIS UNION REPRESENTATIVE" CONTAINED IN ARTICLE 6,
SECTION 1 OF THE PARTIES' NEGOTIATED AGREEMENT, AS DISTINGUISHED FROM A
CLEAR, UNILATERAL BREACH OF THE NEGOTIATED AGREEMENT. /3/ UNDER THESE
CIRCUMSTANCES, I FIND THAT THE RESPONDENT'S CONDUCT CONCERNING THE
COMPLAINANT'S REPRESENTATIVE STATUS AT THE MEETING IN QUESTION WAS NOT
VIOLATIVE OF SECTION 19(A)(1) AND (6) OF THE ORDER.
FURTHERMORE, I FIND THAT I AM PRECLUDED BY SECTION 19(D) OF THE ORDER
FROM CONSIDERING WHETHER THE ALLEGED DENIAL OF ACCESS TO INFORMATION
CONTAINED ON MR. KALVAITIS' SF-7-B EMPLOYMENT RECORD CARD CONSTITUTED A
VIOLATION OF THE ORDER. IN THIS CONNECTION, IT IS CLEAR THAT THE
GRIEVANCE WHICH HAD BEEN FILED HEREIN RAISED THE ISSUE CONCERNING THE
DENIAL OF ACCESS TO CERTAIN INFORMATION CONTAINED ON MR. KALVAITIS'
SF-78 EMPLOYMENT CARD AND THAT THE RESPONSE TO THE GRIEVANCE MADE NO
SPECIFIC REFERENCE TO THE RESPONDENT'S FAILURE TO PROVIDE THE SF-7B
CARD. /4/ UNDER THESE CIRCUMSTANCES, AND NOTING THAT THE COMPLAINANT
DID NOT CHOOSE TO PURSUE ITS GRIEVANCE APPEAL RIGHTS OR SEEK A SPECIFIC
RESPONSE FROM THE RESPONDENT IN THIS REGARD BUT, RATHER, INVOKED THE
UNFAIR LABOR PRACTICE PROCEDURES, I FIND THAT SECTION 19(D) OF THE ORDER
PRECLUDES THE RAISING OF THIS ISSUE UNDER THE UNFAIR LABOR PRACTICE
PROCEDURES AND THAT DISMISSAL OF THIS ASPECT OF THE COMPLAINT IS
WARRANTED ON THIS BASIS.
ACCORDINGLY, I SHALL ORDER THAT THE INSTANT COMPLAINT BE DISMISSED IN
ITS ENTIRETY.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 52-5566(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JULY 29, 1975
/1/ THE COMPLAINANT FILED UNTIMELY EXCEPTIONS WHICH WERE NOT
CONSIDERED.
/2/ ARTICLE 6, SECTION 1 OF THE NEGOTIATED AGREEMENT PROVIDES THAT IN
A MEETING BETWEEN AN EMPLOYEE AND SUPERVISORS OR MANAGEMENT OFFICIALS
CONCERNING "DISCIPLINE OR POTENTIAL DISCIPLINE" THE EMPLOYEE IS ENTITLED
"TO REQUEST TO BE ACCOMPANIED BY HIS UNION REPRESENTATIVE-- -".
/3/ CF. GENERAL SERVICES ADMINISTRATION, REGION 5, PUBLIC BUILDINGS
SERVICES, CHICAGO FIELD OFFICES, A/SLMR NO. 528.
/4/ THIS ASPECT OF THE GRIEVANCE WAS NOT DENIED BY THE RESPONDENT AS
UNTIMELY.
IN THE MATTER OF
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION-MEBA, AFL-CIO,
AND
FEDERAL AVIATION ADMINISTRATION
MUSKEGON AIR TRAFFIC CONTROL TOWER
MR. ROBERT E. MEYER
REGIONAL VICE PRESIDENT, PATCO
3158 DES PLAINES AVENUE
DES PLAINES, ILLINOIS 60018
MR. GERALD P. GUZIAK
LABOR RELATIONS SPECIALIST, FAA
2300 EAST DEVON
DES PLAINES, ILLINOIS 60018
MR. KENNETH A. BURGER
LABOR RELATIONS SPECIALIST, FAA
2300 EAST DEVON
DES PLAINES, ILLINOIS 60018
BEFORE: JOHN H. FENTON
THIS PROCEEDING UNDER EXECUTIVE ORDER 11491 AROSE UPON THE FILING OF
A COMPLAINT ON JULY 27, 1974, BY THE PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION-MEBA, AFL-CIO, AGAINST THE FEDERAL AVIATION
ADMINISTRATION, MUSKEGON AIR TRAFFIC CONTROL TOWER, MUSKEGON, MICHIGAN.
NOTICE OF HEARING WAS ISSUED ON NOVEMBER 13, 1974, BY THE ASSISTANT
REGIONAL DIRECTOR, CHICAGO REGION, LABOR-MANAGEMENT SERVICES
ADMINISTRATION, ALLEGING THAT RESPONDENT VIOLATED SECTIONS 19(A)(1) AND
(6) OF THE ORDER BY REFUSING AGENTS OF PATCO, THE EXCLUSIVE BARGAINING
REPRESENTATIVE, AN APPROPRIATE OPPORTUNITY TO REPRESENT MR. ALEX
KALVAITIS IN DISCUSSIONS HE HAD WITH THE CHIEF OF THE TOWER CONCERNING A
PROPOSED 15-DAY DISCIPLINARY SUSPENSION. RESPONDENT INTERPOSED THREE
DEFENSES: (1) THAT THE UNION WAS, IN FACT, AFFORDED AN OPPORTUNITY TO
PARTICIPATE FULLY IN SUCH DISCUSSIONS; (2) THAT THE ORDER DOES NOT IN
ANY EVENT REQUIRE THAT THE UNION BE GIVEN SUCH AN OPPORTUNITY; AND (3)
THAT MR. KALVAITIS' BELATEDLY FILED GRIEVANCE ADDRESSED IN PART TO THAT
SUBJECT CONSTITUTED A CHOICE OF FORUM UNDER SECTION 19(D) WHICH
PRECLUDES HIS FILING OF AN UNFAIR LABOR PRACTICE COMPLAINT ADDRESSED TO
THE SAME SUBJECT MATTER.
THE HEARING WAS HELD ON JANUARY 6, 1975, IN MUSKEGON, MICHIGAN. ALL
PARTIES WERE REPRESENTED AND WERE AFFORDED FULL OPPORTUNITY TO BE HEARD,
TO PRESENT EVIDENCE AND TO EXAMINE AND CROSS-EXAMINE WITNESSES.
UPON THE ENTIRE RECORD IN THE CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS:
MR. KALVAITIS IS AN AIR TRAFFIC CONTROL SPECIALIST AT MUSKEGON COUNTY
AIRPORT IN A UNIT REPRESENTED BY, AND COVERED BY A COLLECTIVE BARGAINING
AGREEMENT WITH, PATCO. THERE IS ONE ECHELON OF SUPERVISION BETWEEN HIM
AND MR. HARALD G. BACH, CHIEF OF THE AIR TRAFFIC CONTROL TOWER.
ON OCTOBER 2, 1973, MR. KALVAITIS OBSERVED WHAT HE CONSIDERED, OR
SUSPECTED TO BE AN ERROR, ON THE PART OF HIS SUPERVISOR, IN PERMITTING
TOO LITTLE TIME BETWEEN AN ARRIVING AIRCRAFT AND A DEPARTING AIRCRAFT.
THE MERITS OF THIS CONTROVERSY ARE UNIMPORTANT FOR OUR PURPOSES;
SUFFICE IT TO SAY THAT MR. BACH REGARDED MR. KALVAITIS' REPORT OF THE
INCIDENT ON OCTOBER 3 AS BELATED AND VIOLATIVE OF FAA REGULATIONS
REQUIRING THAT SUCH INCIDENTS BE IMMEDIATELY REPORTED AND HE SENT MR.
KALVAITIS A LETTER UNDER DATE OF NOVEMBER 8, 1973, PROPOSING A 15-DAY
SUSPENSION FOR THIS AND OTHER REASONS.
MR. KALVAITIS REQUESTED AND WAS GRANTED A MEETING WITH MR. BACH ON
NOVEMBER 19, 1973, IN ORDER TO DISCUSS THE PROPOSES SUSPENSION. BECAUSE
MR. KALVAITIS WAS THE UNION PRESIDENT AT THE TOWER, IT WAS ARRANGED THAT
HIS ALTERNATE, MR. MICHAEL MANGINO, WOULD REPRESENT HIM AT THE MEETING.
EARLY IN THE DISCUSSION, WHICH COMMENCED WITH MR. KALVAITIS AND MR. BACH
DOING THE TALKING, MR. MANGINO ATTEMPTED TO TAKE PART. MR. BACH TOLD
HIM "MIKE, YOU ARE ON THE OUTSIDE OF THIS, YOU ARE LISTENING." MANGINO
STATED HE WAS THE UNION REPRESENTATIVE, AND WAS AGAIN TOLD HE WAS ONLY A
LISTENER. AGAIN HE SAID HE WAS THE UNION REPRESENTATIVE AND ONCE AGAIN
MR. BACH REITERATED THAT HE WAS A LISTENER. MANGINO SAID, "OKAY", AND
REMAINED QUIET FOR SEVERAL MINUTES. HE THEN ASKED PERMISSION TO SPEAK,
NOTING THAT HE WAS AN OBSERVER, AND ASKED A SERIES OF QUESTIONS. AT A
LATER POINT IN THE DISCUSSION, MR. BACH HAD OCCASION TO SAY: "I'M
DEBATING THE PROS AND CONS OF DISCUSSING THIS WITH YOU, MIKE, RATHER
THAN WITH KAL. WE'RE COVERING GROUND THAT'S ALREADY BEEN COVERED." IN
FACT, MR. MANGINO TOOK A VERY SUBSTANTIAL PART IN THE DISCUSSION,
NOTWITHSTANDING HIS BELIEF THAT HE HAD BEEN RELEGATED TO THE POSITION OF
ANY OBSERVER, CONSIGNED TO A PASSIVE ROLE. WHILE HE MIGHT WELL HAVE
BEEN INTIMIDATED EARLY IN THE CONVERSATION, AND THUS HAVE FAILED TO
RAISE, OR INQUIRE INTO, MATTERS HE OTHERWISE WOULD HAVE EXPLORED, HE
TESTIFIED THAT, WHEN THE DISCUSSION ENDED, HE HAD NOTHING FURTHER TO
SAY.
ARTICLE 6 OF THE COLLECTIVE BARGAINING AGREEMENT (JOINT EXHIBIT 2)
RECOGNIZES AN EMPLOYEE'S RIGHT "TO BE ACCOMPANIED BY HIS UNION
REPRESENTATIVE" IN DISCUSSIONS WITH SUPERVISORS CONCERNING "DISCIPLINE
OR POTENTIAL DISCIPLINE." MR. BACH ASSERTED THAT HE WAS AWARE OF THIS
RIGHT, AND STOPPED MR. MANGINO ONLY BECAUSE HE AT FIRST INTERRUPTED AT
AN INAPPROPRIATE TIME. THUS MR. BACH VIEWED HIMSELF NOT AS FORECLOSING
OR LIMITING MR. MANGINO'S PARTICIPATION IN THE DISCUSSION, BUT ONLY AS
EXERCISING HIS PREROGATIVE AS CHAIRMAN OF THE MEETING TO ENSURE AN
ORDERLY AIRING OF THE CONTROVERSY. NEVERTHELESS, MR. MANGINO, AS THE
UNION OFFICIAL DESIGNATED BY MR. KALVAITIS AS HIS REPRESENTATIVE, WAS
THE SPOKESMAN FOR MR. KALVAITIS, ENTITLED TO DIRECT THEIR DISCUSSION
WITH MANAGEMENT. I FIND THAT MR. BACH'S WORDS, WHATEVER THEIR PURPOSE,
HAD THE EFFECT OF AT LEAST TEMPORARILY PLACING UNION REPRESENTATIVE
MANGINO IN THE POSITION OF A SILENT OBSERVER, DEPRIVING HIM OF HIS RIGHT
TO ACTIVELY PARTICIPATE IN THE ENTIRE DISCUSSION AS MR. KALVAITIS'
CHOSEN REPRESENTATIVE. /1/
ON NOVEMBER 30, 1973, ANOTHER MEETING OCCURRED BETWEEN MR. BACH AND
MR. KALVAITIS, THE LATTER BEING REPRESENTED ON THIS OCCASION BY MR.
ROBERT E. MEYER, VICE-PRESIDENT, GREAT LAKES REGION, PATCO. THE
COMPLAINT WITH RESPECT TO THIS INCIDENT IS ADDRESSED TO THE FACT THAT
MR. BACH REFUSED MR. MEYER'S REQUEST THAT HE TURN OVER THE SF-7B CARD
WHICH RECORDED MR. KALVAITIS' EMPLOYMENT HISTORY. MR. BACH DEFENDED HIS
REFUSAL TO PROVIDE SUCH INFORMATION ON THE GROUND THAT THE REASONS FOR
THE PROPOSED DISCIPLINE WERE SET FORTH IN HIS LETTER NOVEMBER 8, THAT
THE CARD CONTAINED PRIVILEGED INFORMATION FOR THE USE OF SUPERVISION AND
ADMINISTRATIVE STAFF ONLY /2/ , THAT CIVIL SERVICE REGULATIONS DID NOT
REQUIRE THAT SUCH INFORMATION BE DIVULGED, AND THAT ARTICLE 7, SECTION 9
OF THE CONTRACT REQUIRED UNION ACCESS TO SUCH OFFICIAL RECORDS ONLY WHEN
A GRIEVANCE WAS ON FILE.
THESE MEETINGS RESULTED IN A DECEMBER 26, 1973, LETTER FROM MR. BACH
TO MR. KALVAITIS ABANDONING SEVERAL OF HIS GROUNDS FOR DISCIPLINE AND
REDUCING THE PROPOSED 15-DAY SUSPENSION TO 5 DAYS, TO COMMENCE ON
JANUARY 9, 1974. UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, MR.
KALVAITIS HAD 15 DAYS IN WHICH TO FILE A GRIEVANCE FROM THE DAY OF THE
GRIEVABLE EVENT. ON JANUARY 22, 1974, MR. KALVAITIS FILED A GRIEVANCE
WHICH WAS ADDRESSED TO THE MERITS OF THE CONTROVERSY AS WELL AS THE
CLAIMED DEPRIVATION OF REPRESENTATION AND THE DENIAL OF REQUESTED
INFORMATION. SO MUCH OF THE GRIEVANCE AS CONCERNED THE MERITS WAS
ACCEPTED AS TIMELY AND WAS REJECTED. THAT PART RELATING TO
REPRESENTATION RIGHTS WAS REJECTED AS UNTIMELY, INASMUCH AS THE CLAIMED
DENIAL OF REPRESENTATION HAD OCCURRED ON NOVEMBER 19, MORE THAN 15 DAYS
BEFORE THE GRIEVANCE WAS FILED. NO EXPLICIT MENTION WAS MADE OF THE
REFUSAL TO PRODUCE THE SF-7B CARD UPON REQUEST.
A THRESHOLD ISSUE IS PRESENTED BY RESPONDENT'S MOTION TO DISMISS ON
THE GROUND THAT THE COMPLAINANT, HAVING FILED A GRIEVANCE, ALBEIT
BELATEDLY, HAD OPTED TO BE BOUND BY THE CONSEQUENCES OF THAT ROUTE AND
IS PRECLUDED UNDER SECTION 19(D) FROM TAKING A SECOND BITE AT THE APPLE
VIA THE ORDER'S COMPLAINT PROCEDURE. IMPLICIT IN ITS ARGUMENT IS THE
CONTENTION THAT, FOR SECTION 19(D) PURPOSES, IT MATTERS NOT WHETHER A
GRIEVANCE HAS BEEN DISPOSED OF ON THE MERITS OR IS DISMISSED FOR WANT OF
TIMELINESS OR ON SOME OTHER PROCEDURAL BASIS. THE COUNTERVAILING
ARGUMENT IS, OF COURSE, THAT A GRIEVANCE WHICH IS FILED LATE DOES NOT
INVOKE THE GRIEVANCE PROCEDURE, DOES NOT LEAD TO A RESOLUTION OF THE
CONTROVERSY THROUGH THE GRIEVANCE MACHINERY AND HENCE DOES NOT
CONSTITUTE A FIRST BITE OF THE APPLE. THUS, COMPLAINANT ASSERTS, AN
UNTIMELY STEP IN THAT DIRECTION IS NOT TO BE CONSIDERED AN IRREVOCABLE
OPTION UNDER SECTION 19(D).
I KNOW OF NO CASE UNDER THE ORDER WHICH THROWS LIGHT ON THIS ISSUE.
IT IS CLEAR FROM THE STUDY PRECEDING THE AMENDMENT OF THE ORDER ONLY
THAT THE ELECTION OF THE FORUM FOR REDRESS WAS MEANT TO BE BINDING, NOT
THE REASONS FOR IT. PRESUMABLY THE PURPOSE OF SUCH A RESTRICTION IS
THAT WHICH OBTAINS IN OTHER AREAS OF THE LAW: TO AVOID CONFLICTING
RESOLUTIONS IN DIFFERENT FORUMS OF THE SAME CONTROVERSY, AS WELL AS THE
WASTE OF RESOURCES WHICH ATTENDS SUCH DUPLICATION. NEITHER OF THESE
PURPOSES IS SUBVERTED BY A LATE-FILED GRIEVANCE. THUS NO CONSIDERATION
BY TWO FORUMS COULD OCCUR, AND NO COGNIZABLE WASTE OF RESOURCES
OCCURRED. HERE, FILING OF THE GRIEVANCE, AS RESPECTS THE ISSUE OF
REPRESENTATION, DID NOT TRIGGER A DISPOSITION ON THE MERITS. IN SUCH
CIRCUMSTANCES I AM NOT PERSUADED BY THE ARGUMENT THAT THE GRIEVANCE
MACHINERY WAS IN ANY REAL SENSE INVOKED. WERE A PARTY TO WITHDRAW A
GRIEVANCE BEFORE ANYONE ACTED UPON IT, AND ELECT TO TAKE THE UNFAIR
LABOR PRACTICE ROUTE, IT WOULD LIKEWISE NOT SEEM REASONABLE TO DEPRIVE
HIM OF THAT OPTION WHERE NO PREJUDICE CAN BE SHOWN BY THE OTHER PARTY OR
BURDEN UPON THE OTHER FORUM. THUS, I CONCLUDE THAT SECTION 19(D) DOES
NOT PRECLUDE ACTION UPON THIS COMPLAINT MERELY BECAUSE THERE OCCURRED AN
UNSUCCESSFUL ATTEMPT TO FILE A GRIEVANCE ADDRESSED TO THE SAME SUBJECT
MATTER. IT IS ALSO TO BE NOTED THAT, EVEN IF THE GRIEVANCE HAD BEEN
TIMELY FILED AND THEREFORE ACTIONABLE, IT WOULD NOT PRECLUDE PROCESSING
OF THAT PART OF THIS COMPLAINT WHICH AS I READ IT, IS ADDRESSED TO THE
UNION'S RIGHT TO BE REPRESENTED AT THE MEETING AS OPPOSED TO THE
GRIEVANT'S RIGHT TO BE REPRESENTED BY THE UNION.
THE QUESTION WHETHER MR. KALVAITIS WAS ENTITLED TO REPRESENTATION AT
THE NOVEMBER 19 MEETING WOULD, APART FROM CONTRACT CONSIDERATIONS, BE
SQUARELY COVERED BY FEDERAL AVIATION ADMINISTRATION, NATIONAL AVIATION
FACILITIES, EXPERIMENTAL CENTER, A/SLMR NO. 438. THERE, (IN CASE NO.
32-3297(CA)) NO VIOLATIONS OF SECTIONS 19(A)(1) AND (6) WERE FOUND WHERE
THE RECIPIENT OF AN OFFICIAL LETTER OF REPRIMAND WAS DENIED UNION
REPRESENTATION AT A MEETING CONCERNING THE REPRIMAND WITH HER FOURTH
LEVEL SUPERVISOR. IN CONCLUDING THAT THE MEETING WAS NOT A FORMAL
DISCUSSION WITHIN THE MEANING OF SECTION 10(E), THE ASSISTANT SECRETARY
NOTED THAT THE SUBJECT MATTER OF THE MEETING RELATED ONLY TO THE
APPLICATION OF THE RESPONDENT'S REGULATIONS TO THE INDIVIDUAL EMPLOYEE,
AND THAT NO GRIEVANCE HAD BEEN FILED. ON THE FACTS PRESENTED HERE, THE
SAME FINDING WOULD ALLOW, A FORTIORI, BUT FOR THE EXISTENCE OF ARTICLE 6
OF THE COLLECTIVE BARGAINING AGREEMENT. HAVING FOUND THAT TOWER CHIEF
BACH INAPPROPRIATELY LIMITED UNION REPRESENTATIVE MANGINO'S ROLE IN THE
NOVEMBER 19 MEETING BY NOT PERMITTING HIM TO PARTICIPATE FULLY IN THE
DISCUSSION WITH MANAGEMENT, IT FOLLOWS THAT THE ACTIVITY VIOLATED
ARTICLE 6. ARTICLE 6 ESTABLISHED THE RIGHT TO UNION REPRESENTATION AT
MEETINGS CONCERNING PROPOSED DISCIPLINE AS A TERM AND CONDITION OF
EMPLOYMENT AT THE MUSKEGON TOWER. THUS MANAGEMENT'S FAILURE FULLY TO
RECOGNIZE MR. MANGINO'S STATUS AS MR. KALVAITIS' REPRESENTATIVE
CONSTITUTED AN UNILATERAL CHANGE IN AN EMPLOYMENT CONDITION AT THE
TOWER, VIOLATIVE OF SECTIONS 19(A)(1) AND (6). FURTHERMORE, SUCH
CONDUCT BY ITS VERY NATURE HAS A RESTRAINING INFLUENCE UPON UNIT
EMPLOYEES AND A COERCIVE EFFECT UPON THEIR RIGHTS ASSURED BY THE ORDER,
IN VIOLATION OF SECTION 19(A)(1). /3/ I DO NOT FIND, HOWEVER, THAT THE
UNION HAD ANY RIGHT TO BE REPRESENTED AT SUCH DISCUSSIONS, AS THE
CONTRACT CREATED ONLY A RIGHT RUNNING TO THE INDIVIDUAL TO DESIGNATE A
UNION REPRESENTATIVE, AND NO SUCH RIGHT FLOWS FROM THE ORDER BECAUSE THE
DISCUSSIONS WERE NOT FORMAL WITHIN THE MEANING OF SECTION 10(E).
WITH RESPECT TO THE QUESTION OF RESPONDENT'S OBLIGATION TO PRODUCE
THE SF-7B CARD REQUESTED BY UNION REPRESENTATIVE MEYER, RESPONDENT
POINTS TO NO CIVIL SERVICE REGULATION PROHIBITING THE PRODUCTION OF SUCH
INFORMATION. IT INTRODUCED SUBCHAPTER 1 OF CHAPTER 752 OF THE FEDERAL
PERSONNEL MANUAL (RESPONDENT'S EXHIBIT NO. 1) TO ESTABLISH THAT AN
AGENCY'S OBLIGATION TO ASSEMBLE AND TO FURNISH AN EMPLOYEE WITH ALL THE
MATERIAL RELIED ON TO SUPPORT A PROPOSED ADVERSE ACTION DOES NOT APPLY
TO SUSPENSIONS OF 30 DAYS OR LESS. IT ALSO POINTS TO THE FAILURE OF
COLLECTIVE BARGAINING AGREEMENT TO REQUIRE SUCH PRODUCTION BEFORE A
GRIEVANCE HAS BEEN FILED. THUS, IT ADVANCES IN JUSTIFICATION OF ITS
REFUSAL TO PRODUCE ONLY THE ABSENCE OF ANY REQUIREMENT THAT SUCH
MATERIALS BE PRODUCED AND THE LIMITATION ON DISTRIBUTION OF THE SF-7B
WHICH IS SET FORTH IN THE AGENCY'S GREAT LAKES REGION ORDER ON THE BASIS
OF "CONFIDENTIALITY".
THE ASSISTANT SECRETARY HAS REFERRED TO THE FEDERAL LABOR RELATIONS
COUNCIL THE QUESTION WHETHER APPLICABLE LAWS AND REGULATIONS, INCLUDING
POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL, CONSTITUTE A DEFENSE
TO THE REFUSAL TO PRODUCE RELEVANT AND NECESSARY DOCUMENTS IN A
GRIEVANCE PROCEEDING. /4/ IN DOING SO, HE STATED THAT, APART FROM SUCH
DEFENSE HE WOULD ADOPT THE ADMINISTRATIVE LAW JUDGE'S CONCLUSION THAT A
LABOR ORGANIZATION CANNOT PROPERLY DISCHARGE ITS RESPONSIBILITIES UNDER
SECTION 10(E) WHERE IT CANNOT OBTAIN INFORMATION WHICH IS RELEVANT AND
NECESSARY IN CONNECTION WITH THE PROCESSING OF A GRIEVANCE. THERE THE
UNION SOUGHT DOCUMENTS WHICH REFLECTED AN EVALUATION PANEL'S ASSESSMENT
OF THE GRIEVANT AND COMPETING CANDIDATES FOR A PROMOTION. HERE THE
UNION SOUGHT THE EMPLOYMENT RECORDS OF MR. KALVAITIS IN ORDER TO MORE
INTELLIGENTLY AND EFFECTIVELY ASSIST HIM IN HIS DISCUSSIONS CONCERNING
PROPOSED DISCIPLINE. IT IS OBVIOUS THAT MR. KALVAITIS' EMPLOYMENT
HISTORY, AS RECORDED BY HIS SUPERIORS, IS RELEVANT TO THE ISSUE OF THE
NECESSITY FOR, AS WELL AS THE SEVERITY OF, ANY PROPOSED DISCIPLINE. THE
BARGAINING REPRESENTATIVE'S CAPACITY TO REPRESENT HIM EFFECTIVELY
DEPENDED LARGELY UPON THE INFORMATION WITH WHICH IT WAS ARMED. WITHOUT
SUCH INFORMATION THE UNION WAS HANDICAPPED IN DECIDING WHETHER IT SHOULD
INVOKE THE GRIEVANCE PROCEDURE, COUNSEL MR. KALVAITIS TO DO SO, OR, FOR
THAT MATTER, COUNSEL HIM TO ACCEPT SOME MEASURE OF DISCIPLINE AS
REASONABLE AND APPROPRIATE IN THE CIRCUMSTANCES. TO WITHHOLD SUCH
INFORMATION IS TO REQUIRE THE BARGAINING REPRESENTATIVE TO SHOOT IN THE
DARK, CALLING ITS SHOTS ON THE BASIS OF THE COMPLAINING EMPLOYEE'S
VERSION OF EVENTS, HEARSAY, AND THE UNDOCUMENTED ASSERTIONS OF
MANAGEMENT'S SPOKESMAN. FURTHERMORE, IN MY VIEW, A UNION HAS THE RIGHT,
AS A CONCOMITANT OF ITS RESPONSIBILITY AS BARGAINING REPRESENTATIVE OF
ALL UNIT EMPLOYEES, TO SUCH INFORMATION AS IS RELEVANT AND NECESSARY TO
THE DISCHARGE OF ITS OBLIGATION TO SIFT OUT UNMERITORIOUS COMPLAINTS AND
THUS TO HARNESS ITS LIMITED RESOURCES AND ENERGIES TO COMPLAINTS ON A
SCALE CORRESPONDING TO ITS PERCEPTION OF THEIR RELATIVE WORTH AND
SIGNIFICANCE TO ITS ENTIRE CONSTITUENCY. IT IS THEREFORE MY CONCLUSION
THAT THE RATIONALE FOR REQUIRING DISCLOSURE OF SUCH INFORMATION IN
CONNECTION WITH THE PROCESSING OF A GRIEVANCE APPLIES WITH EQUAL FORCE
TO THE PRE-GRIEVANCE STAGES OF A COMPLAINT, ABSENT A PERSUASIVE SHOWING
OF A NEED TO PRESERVE CONFIDENTIALITY, IF ONLY TO A LATER, MORE FORMAL
STEP IN THE EFFORT TO RESOLVE THE CONTROVERSY. RESPONDENT HAS ADVANCED
NO REASONS FOR CONFIDENTIALITY. IT HAS RESTED ON THE EXISTENCE OF AN
INTERNAL REGIONAL ORDER WHICH LABELS SUCH MATERIAL AS CONFIDENTIAL AND
LIMITS ITS DISTRIBUTION TO SUPERVISORS AND ADMINISTRATIVE STAFF PRIOR TO
THE FILING OF A GRIEVANCE. THAT MAY BE A SOUND PRACTICE IN ORDINARY
CIRCUMSTANCES. IT HARDLY CONSTITUTES GOOD REASON TO WITHHOLD SUCH
MATTER FROM AN INDIVIDUAL, OR THE REPRESENTATIVE OF AN INDIVIDUAL WHO IS
FACED WITH A THREE WEEK SUSPENSION WITHOUT PAY. /5/
I THEREFORE CONCLUDE THAT RESPONDENT'S REFUSAL TO FURNISH THE UNION
WITH THE REQUESTED SF-7B ON NOVEMBER 30, 1973, CONSTITUTED A REFUSAL TO
CONSULT, CONFER OR NEGOTIATE IN VIOLATION OF SECTION 19(A)(6) OF THE
ORDER. I FURTHERMORE CONCLUDE THAT RESPONDENT THEREBY INTERFERED WITH,
RESTRAINED AND COERCED UNIT EMPLOYEES IN THEIR RIGHT TO HAVE THE
EXCLUSIVE REPRESENTATIVE ACT FOR AND REPRESENT THEIR INTERESTS IN
RESPECT TO PROPOSED OR POTENTIAL DISCIPLINE, IN VIOLATION OF SECTION
19(A)(1).
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT PROHIBITED BY
SECTION 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED, I
RECOMMEND THAT THE ASSISTANT SECRETARY ADOPT THE FOLLOWING ORDER
DESIGNED TO EFFECTUATE THE PURPOSES OF THE ORDER. /6/
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE FEDERAL AVIATION
ADMINISTRATION, MUSKEGON AIR TRAFFIC CONTROL TOWER SHALL:
1. CEASE AND DESIST FROM:
A. REFUSING TO CONSULT, CONFER, OR NEGOTIATE WITH PROFESSIONAL AIR
TRAFFIC CONTROLLERS
ORGANIZATION-MEBA, AFL-CIO, THE EXCLUSIVE BARGAINING REPRESENTATIVE,
BY:
1. DISREGARDING THE COLLECTIVE BARGAINING AGREEMENT'S PROVISION
GRANTING EMPLOYEES FACED
WITH PROPOSED OR POTENTIAL DISCIPLINE THE RIGHT, IN DISCUSSIONS WITH
MANAGEMENT CONCERNING
SUCH DISCIPLINE, TO BE REPRESENTED BY THAT UNION.
2. REFUSING TO PROVIDE, UPON REQUEST ANY DOCUMENTARY MATERIALS
UTILIZED IN MANAGEMENT'S
DECISION PROPOSING DISCIPLINARY ACTION AGAINST ALEXANDER KALVAITIS,
OR ANY OTHER BARGAINING
UNIT EMPLOYEE, WHICH ARE NECESSARY FOR SUCH LABOR ORGANIZATION TO
DISCHARGE ITS OBLIGATION AS
EXCLUSIVE BARGAINING REPRESENTATIVE OF ALL EMPLOYEES IN THE UNIT.
B. INTERFERING WITH, RESTRAINING OR COERCING EMPLOYEES BY
DISREGARDING THE TERMS OF THE
COLLECTIVE BARGAINING AGREEMENT WHICH ACCORD EMPLOYEES FACED WITH
PROPOSED OR POTENTIAL
DISCIPLINE THE RIGHT TO BE REPRESENTED BY PATCO IN DISCUSSIONS WITH
MANAGEMENT CONCERNING THAT
SUBJECT, OR BY DENYING THAT UNION'S REQUEST FOR PERSONNEL RECORDS
RELATED TO SUCH DISCIPLINE.
C. IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED BY SECTION 1(A) OF EXECUTIVE ORDER
11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES OF THE EXECUTIVE ORDER:
A. UPON REQUEST, RECOGNIZE PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION-MEBA,
AFL-CIO, AS THE REPRESENTATIVE OF ALEXANDER KALVAITIS, OR ANY OTHER
EMPLOYEE IN THE BARGAINING
UNIT, WHO IS FACED WITH PROPOSED OR POTENTIAL DISCIPLINE.
B. UPON REQUEST, PERMIT PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION-MEBA, AFL-CIO,
ACCESS TO THE OFFICIAL PERSONNEL DOCUMENTS CONCERNING ALEXANDER
KALVAITIS OR ANY OTHER
EMPLOYEE IN THE BARGAINING UNIT WHO IS FACED WITH PROPOSED OR
POTENTIAL DISCIPLINE.
C. POST AT ITS MUSKEGON, MICHIGAN FACILITY COPIES OF THE ATTACHED
NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT
RELATIONS. UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE
CHIEF, AIR TRAFFIC CONTROL
TOWER, AND THEY SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER, IN
CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES
ARE CUSTOMARILY
POSTED. THE TOWER CHIEF SHALL TAKE REASONABLE STEPS TO INSURE THAT
SUCH NOTICES ARE NOT
ALTERED OR DEFACED OR COVERED BY ANY OTHER MATERIAL.
D. PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN
WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS
HAVE BEEN TAKEN TO COMPLY
THEREWITH.
DATED: MARCH 3, 1975
WASHINGTON, D.C.
WE WILL NOT REFUSE TO CONSULT, CONFER, OR NEGOTIATE WITH PROFESSIONAL
AIR TRAFFIC CONTROLLERS ORGANIZATION-MEBA, AFL-CIO, THE EXCLUSIVE
BARGAINING REPRESENTATIVE BY:
1. DISREGARDING THE COLLECTIVE BARGAINING AGREEMENT'S PROVISION
GRANTING EMPLOYEES FACED
WITH PROPOSED OR POTENTIAL DISCIPLINE THE RIGHT, IN DISCUSSIONS WITH
MANAGEMENT CONCERNING
SUCH DISCIPLINE, TO BE REPRESENTED BY THAT UNION.
2. REFUSING TO PROVIDE, UPON REQUEST ANY DOCUMENTARY MATERIALS
UTILIZED IN MANAGEMENT'S
DECISION PROPOSING DISCIPLINARY ACTION AGAINST ALEXANDER KALVAITIS,
OR ANY OTHER BARGAINING
UNIT EMPLOYEE, WHICH ARE NECESSARY FOR SUCH LABOR ORGANIZATION TO
DISCHARGE ITS OBLIGATION AS
EXCLUSIVE BARGAINING REPRESENTATIVE OF ALL EMPLOYEES IN THE UNIT.
WE WILL NOT INTERFERE WITH, RESTRAIN OR COERCE EMPLOYEES BY
DISREGARDING THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT WHICH
ACCORD EMPLOYEES FACED WITH PROPOSED OR POTENTIAL DISCIPLINE THE RIGHT
TO BE REPRESENTED BY PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION-MEBA, AFL-CIO IN DISCUSSIONS WITH MANAGEMENT CONCERNING
THAT SUBJECT, OR BY DENYING THAT UNION'S REQUEST FOR PERSONNEL RECORDS
RELATED TO SUCH DISCIPLINE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY SECTION
1(A) OF EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL, UPON REQUEST, RECOGNIZE PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION-MEBA, AFL-CIO, AS THE REPRESENTATIVE OF ALEXANDER
KALVAITIS, OR ANY OTHER EMPLOYEE IN THE BARGAINING UNIT, WHO IS FACED
WITH PROPOSED OR POTENTIAL DISCIPLINE.
WE WILL PERMIT PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION-MEBA, AFL-CIO ACCESS TO THE OFFICIAL PERSONNEL DOCUMENTS
CONCERNING ALEXANDER KALVAITIS OR ANY OTHER EMPLOYEE IN THE BARGAINING
UNIT WHO IS FACED WITH PROPOSED OR POTENTIAL DISCIPLINE.
DATED . . . BY . . . (SIGNATURE AND TITLE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES, UNITED STATES
DEPARTMENT OF LABOR, WHOSE ADDRESS IS ROOM 848, FEDERAL OFFICE BUILDING,
219 S. DEARBORN STREET, CHICAGO, ILLINOIS, 60604.
/1/ IT WAS AS IF MR. BACH TOOK LITERALLY THE ARTICLE'S LANGUAGE,
ACCORDING MR. KALVAITIS THE RIGHT TO "BE ACCOMPANIED BY" A UNION
REPRESENTATIVE. RESPONDENT'S BRIEF LIKEWISE SEEMS TO SUGGEST A
DISTINCTION BETWEEN THE RIGHT TO UNION REPRESENTATION GROUNDED IN
SECTION 10(E) AND THE RIGHT TO HAVE A UNION REPRESENTATIVE PRESENT
CONFERRED BY THE CONTRACT. I READ ARTICLE 6 AS GRANTING AN EMPLOYEE THE
RIGHT TO BE REPRESENTED BY THE UNION, NOT MERELY ACCOMPANIED BY A UNION
AGENT.
/2/ AN FAA, GREAT LAKES REGION REGULATION ISSUED MARCH 29, 1973,
CONCERNING SF-7B, STATES AT PARAGRAPH 5B THAT THE FORM SHALL BE FILED IN
A MANNER WHICH "WILL SAFEGUARD THE CONFIDENTIAL NATURE OF THE
INFORMATION RECORDED THEREON . . . (AND THAT) (A)CCESS TO THESE FORMS
SHALL BE LIMITED TO SUPERVISORS AND TO ADMINISTRATIVE STAFF ON A
NEED-TO-KNOW BASIS." (JOINT EXHIBIT NO. 3)
/3/ LONG BEACH NAVAL SHIPYARD, A/SLMR NO. 154; U.S. ARMY
SCHOOL/TRAINING CENTER, FORT MCCLELLAN, ALABAMA, A/SLMR NO. 42. CF.
NLRB V. J. WEINGARTEN, INC., 43 U.S.LAW WEEK 4275.
/4/ DEPARTMENT OF DEFENSE, STATE OF NEW JERSEY, A/SLMR NO. 323.
/5/ DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, KANSAS CITY PAYMENT CENTER, BUREAU OF RETIREMENT AND
SURVIVORS INSURANCE, A/SLMR NO. 411.
/6/ AN EXPLANATION IS REQUIRED FOR MY FAILURE TO ACCEPT THE UNION'S
REQUEST THAT THE RECOMMENDED REMEDY INCLUDE A RESTORATION OF THE STATUS
QUO ANTE. HAD IMPOSITION OF THE FIVE DAY SUSPENSION BEEN THE FINAL
DISPOSITION HERE, IT WOULD BE NECESSARY TO RETURN THE MATTER TO ITS
POSTURE ON NOVEMBER 19, 1973, AND REQUIRE RESPONDENT TO MEET AGAIN WITH
MR. KALVAITIS AND HIS DESIGNATED REPRESENTATIVE, AND TO MAKE AVAILABLE
UPON REQUEST THE SF-7B CARD. HERE, HOWEVER, MR. KALVAITIS RECEIVED A
"TRIAL DE NOVO" WHEN HE FILED HIS GRIEVANCE. THE REQUESTED INFORMATION
WAS SUPPLIED TO HIM AND THE UNION WAS PERMITTED TO REPRESENT HIM, AS
ARTICLE 7 OF THE COLLECTIVE BARGAINING AGREEMENT REQUIRED. FURTHERMORE,
THE GRIEVANCE PROCEDURE PROVIDED FOR COMPLETE REENACTMENT OF WHAT HAD
GONE ON BEFORE, NAMELY AN OPPORTUNITY FOR ORAL PRESENTATION TO THE
FACILITY CHIEF, TO BE FOLLOWED, IF NECESSARY, BY MORE FORMAL STEPS
CULMINATING IN ARBITRATION. THUS, NO REMEDY I CAN DEVISE COULD ADD TO
THE PANOPLY OF RIGHTS WHICH WERE ASSURED TO MR. KALVAITIS UNDER ARTICLE
9. I THEREFORE CONCLUDE THAT IT WOULD SERVE NO USEFUL PURPOSE TO ADD TO
THE REMEDY OUTLINED BELOW A REQUIREMENT THAT RESPONDENT RETURN TO THE
STAGE AS SET IN NOVEMBER 1973, DISCUSS THE PROPOSED SUSPENSION WITH MR.
KALVAITIS AND HIS REPRESENTATIVE, AND MAKE AVAILABLE THE DOCUMENT UPON
REQUEST.
5 A/SLMR 533; P. 448; CASE NO. 72-4741; JUNE 30, 1975.
FEDERAL AVIATION ADMINISTRATION,
AIRWAY FACILITIES SECTOR,
SAN DIEGO, CALIFORNIA
A/SLMR NO. 533
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-56 (NAGE
ALLEGING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE
ORDER BY FAILING TO CONSULT WITH THE NAGE PRIOR TO ITS INSTITUTION OF AN
EMPLOYEE RATING SYSTEM. THE RESPONDENT CONTENDED, AMONG OTHER THINGS,
THAT IT WAS UNDER NO OBLIGATION TO CONSULT OR CONFER WITH THE NAGE
CONCERNING THE STAFFING READJUSTMENT PLAN BECAUSE IT WAS NOT THE
"EMPLOYER" NAMED IN THE NEGOTIATED AGREEMENT.
THE ASSISTANT SECRETARY FOUND, CONTRARY TO THE ADMINISTRATIVE LAW
JUDGE, THAT THE RESPONDENT DID NOT VIOLATE SECTION 19(A)(1) AND (6) OF
THE ORDER AS IN HIS VIEW, THE OBLIGATION TO MEET AND CONFER UNDER THE
ORDER APPLIES ONLY IN THE CONTEXT OF THE EXCLUSIVE BARGAINING
RELATIONSHIP BETWEEN THE EXCLUSIVE REPRESENTATIVE AND THE ACTIVITY OR
AGENCY WHICH HAD ACCORDED EXCLUSIVE RECOGNITION AND AS THE RESPONDENT
WAS NOT A PARTY TO THE BARGAINING RELATIONSHIP HEREIN, THE RESPONDENT
OWED NO BARGAINING OBLIGATION TO THE NAGE.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY.
FEDERAL AVIATION ADMINISTRATION,
AIRWAY FACILITIES SECTOR,
SAN DIEGO, CALIFORNIA
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R17-56
ON DECEMBER 20, 1974, ADMINISTRATIVE LAW JUDGE THOMAS W. KENNEDY
ISSUED HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR LABOR
PRACTICES, AND RECOMMENDING THAT IT TAKE CERTAIN AFFIRMATIVE ACTION AS
SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION. THERE AFTER, THE RESPONDENT FILED EXCEPTIONS AND A
SUPPORTING BRIEF WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S REPORT
AND RECOMMENDATION.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
RESPONDENT'S EXCEPTIONS AND SUPPORTING BRIEF, I HEREBY ADOPT THE
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE ADMINISTRATIVE LAW
JUDGE, ONLY TO THE EXTENT CONSISTENT HEREWITH.
THE ESSENTIAL FACTS OF THE CASE ARE SET FORTH IN DETAIL IN THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATION AND I SHALL REPEAT
THEM ONLY TO THE EXTENT NECESSARY.
THIS CASE AROSE AS THE RESULT OF A COMPLAINT FILED BY THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-56, HEREIN CALLED
COMPLAINANT, ALLEGING THAT THE FEDERAL AVIATION ADMINISTRATION, AIRWAY
FACILITIES SECTOR, SAN DIEGO, CALIFORNIA, HEREIN CALLED RESPONDENT,
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY FAILING TO CONSULT
WITH THE COMPLAINANT PRIOR TO ITS INSTITUTION OF AN EMPLOYEE RATING
SYSTEM. THE RESPONDENT, THROUGH SEVERAL OF ITS FIELD OFFICES, INCLUDING
THE MIRAMAR AIRWAY FACILITIES SECTOR FIELD OFFICE, SAN DIEGO.
CALIFORNIA, HEREIN CALLED MIRAMAR, IS RESPONSIBLE FOR THE FIELD
MAINTENANCE OF THE NAVIGATIONAL AIDS AND EQUIPMENT USED IN THE AIR
TRAFFIC CONTROL SYSTEM INVOLVED IN CONTROLLING MILITARY AND CIVILIAN
AIRCRAFT. AT ALL TIMES MATERIAL HEREIN, THE COMPLAINANT WAS THE
EXCLUSIVE REPRESENTATIVE FOR A UNIT OF ALL NONSUPERVISORY ELECTRONICS
TECHNICIANS EMPLOYED AT MIRAMAR. /1/
IN AUGUST 1969, THE EMPLOYEES OF MIRAMAR WERE NOTIFIED THAT MOST OF
THE EQUIPMENT OF THE MIRAMAR FIELD OFFICE WAS SCHEDULED TO BE REPLACED
WITH MORE MODERN AND COMPLICATED SYSTEMS OVER THE NEXT FEW YEARS AND
THAT THE ELECTRONICS TECHNICIANS SHOULD PLAN FOR TRAINING NECESSARY TO
QUALIFY THEM FOR MAINTENANCE ASSIGNMENTS. AS THE SYSTEM CHANGEOVER
GRADUALLY TOOK PLACE AND ELECTRONICS TECHNICIANS WERE DETAILED FOR
TRAINING, ADDITIONAL ELECTRONICS TECHNICIANS WERE ASSIGNED TO MIRAMAR SO
THAT BY THE END OF 1973, THERE WERE 12 ELECTRONICS TECHNICIANS ASSIGNED
TO THE MIRAMAR FIELD OFFICE. /2/ BY THE END OF 1973, IT WAS GENERALLY
KNOWN THAT THE MIRAMAR FACILITY WAS OVERSTAFFED AND THAT SOME OF THE
ELECTRONICS TECHNICIANS WOULD HAVE TO BE TRANSFERRED TO OTHER FAA
LOCATIONS.
ON MARCH 6, 1974, SECTOR MANAGER MAX KELCH, SENT A MEMORANDUM TO
RONALD RUDOLPH, CHIEF OF MIRAMAR, WHICH CONTAINED A FORMULA FOR DECIDING
WHICH ELECTRONICS TECHNICIANS WOULD BE RETAINED AT MIRAMAR AND WHICH
ONES WOULD BE TRANSFERRED ELSEWHERE. THE PLAN CONTAINED A SPECIFIC
FRAMEWORK WITH RESPECT TO WHAT CRITERIA WOULD BE EVALUATED AND COMPILED
SO AS TO DETERMINE WHO WERE THE BEST QUALIFIED AND MOST HIGHLY TRAINED
TECHNICIANS. PRIOR TO THIS TIME, RUDOLPH WAS UNAWARE OF THE DETAILS OF
THE PLAN AND THE COMPLAINANT HAD NOT BEEN INFORMED THAT A STAFFING AND
RATING PLAN WAS UNDER STUDY AT THE SECTOR LEVEL.
RUDOLPH RECEIVED THE ABOVE-NOTED MEMORANDUM OF MARCH 7, 1974, AND,
AFTER STUDYING THE PLAN, ON MARCH 11, 1974, MET WITH DAVID EDWARDS,
PRESIDENT OF THE COMPLAINANT, ONE OF THE ELECTRONICS TECHNICIANS AT
MIRAMAR. EDWARDS TESTIFIED THAT ALTHOUGH HE KNEW THAT MIRAMAR WAS
OVERSTAFFED AND THAT SOMEONE MIGHT LOSE HIS JOB OR BE TRANSFERRED, HE
WAS UNAWARE THAT A PLAN HAD BEEN FULLY DEVELOPED UNTIL HIS MEETING WITH
RUDOLPH ON MARCH 11. AT THE MARCH 11 MEETING, EDWARD TESTIFIED THAT
THERE WAS NO DISCUSSION OF THE MERITS OF THE PLAN; THAT HE WAS SIMPLY
INFORMED THAT THIS WAS THE PLAN THAT WAS GOING TO BE USED; AND THAT
RUDOLPH WAS GOING TO MEET WITH ALL OF THE ELECTRONICS TECHNICIANS THE
FOLLOWING DAY TO EXPLAIN THE PLAN. AT THE CONCLUSION OF THE MEETING,
RUDOLPH TOLD EDWARDS THAT HE WOULD APPRECIATE ANY "INPUT" EDWARDS HAD
CONCERNING THE PLAN OUTLINED IN THE MEMORANDUM. EDWARDS REPLIED THAT HE
FELT THAT ANY LAYOFFS OR TRANSFERS SHOULD BE ACCOMPLISHED THROUGH
ESTABLISHED REDUCTION-IN-FORCE PROCEDURE RATHER THAN THROUGH THE RATING
SYSTEM OUTLINED IN THE MEMORANDUM. ON MARCH 12, 1974, RUDOLPH MET WITH
ALL OF THE ELECTRONICS TECHNICIANS WHO WERE ON DUTY AT THE TIME TO
EXPLAIN THE PLAN AND THEN POSTED THE MEMORANDUM FOR ALL TO READ AND TO
INITIAL. THE COMPLAINANT SOUGHT NO FURTHER DISCUSSIONS ON THE MATTER
AND THE PLAN, WITH CERTAIN MODIFICATIONS, EVENTUALLY WAS PUT INTO
EFFECT. /3/
THE ADMINISTRATIVE LAW JUDGE FOUND ESSENTIALLY THAT THE RESPONDENT'S
FAILURE TO KEEP THE COMPLAINANT INFORMED WITH REFERENCE TO DEVELOPMENT
OF ITS STAFFING PLAN AT MIRAMAR, AND ITS FAILURE TO AFFORD THE
COMPLAINANT A MEANINGFUL OPPORTUNITY TO DISCUSS THE MATTER AND ITS
AFFECT ON UNIT EMPLOYEES, CONSTITUTED A VIOLATION OF SECTION 19(A)(1)
AND (6) OF THE ORDER. IN REACHING THIS CONCLUSION, THE ADMINISTRATIVE
LAW JUDGE FOUND THAT WHILE THE COMPLAINANT'S "REPRESENTATIVE STATUS WAS
LIMITED TO A UNIT OF ELECTRONICS ENGINEERS AT THE MIRAMAR FIELD OFFICE,
THE EMPLOYER WAS THE AGENCY, FEDERAL AVIATION ADMINISTRATION AND THE
COMPLAINANT HAS PROPERLY NAMED THE AGENCY'S AIRWAY FACILITIES SECTOR AS
THE RESPONDENT." IN THIS REGARD, HE NOTED THAT THE "RESPONDENT WAS A
HIGHER ECHELON COMPLETELY IN CHARGE OF THE 'EMPLOYER' NAMED IN THE
CONTRACT AND RESPONSIBLE FOR ITS STAFFING," AND THAT THE INSTRUCTIONS
ISSUED IN THIS CASE APPLIED ONLY TO THE MIRAMAR FIELD OFFICE.
I DISAGREE WITH THE ADMINISTRATIVE LAW JUDGE'S CONCLUSIONS CONCERNING
THE RESPONDENT'S OBLIGATION TO MEET AND CONFER CONCERNING THE STAFFING
READJUSTMENT. THUS, IT HAS BEEN FOUND PREVIOUSLY THAT THE OBLIGATION TO
MEET AND CONFER UNDER THE ORDER APPLIES ONLY IN THE CONTEXT OF THE
EXCLUSIVE BARGAINING RELATIONSHIP BETWEEN THE EXCLUSIVE RECOGNITION.
/4/ AS NOTED ABOVE, THE EVIDENCE HEREIN ESTABLISHED THAT THE MIRAMAR
FIELD OFFICE, AND NOT THE RESPONDENT, ACCORDED EXCLUSIVE RECOGNITION TO
THE COMPLAINANT. /5/ UNDER THESE CIRCUMSTANCES, AS THE RESPONDENT WAS
NOT A PARTY TO A BARGAINING RELATIONSHIP HEREIN, I FIND THAT ITS CONDUCT
IN ESTABLISHING A FORMULA FOR DECIDING WHICH ELECTRONICS TECHNICIANS
WOULD BE RETAINED AT MIRAMAR AND WHICH ONES WOULD BE TRANSFERRED
ELSEWHERE, WAS NOT VIOLATIVE OF SECTION 19(A)(1) /6/ AND (6) OF THE
ORDER.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 72-4741 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 30, 1975
/1/ AT THE TIME OF THE ALLEGED UNFAIR LABOR PRACTICES HEREIN, THERE
WAS A NEGOTIATED AGREEMENT IN EFFECT BETWEEN MIRAMAR AND THE
COMPLAINANT.
/2/ IN AUGUST 1969, THERE WAS EIGHT ELECTRONICS TECHNICIANS ASSIGNED
TO MIRAMAR.
/3/ PAGE 7 OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION CONTAINED SEVERAL INADVERTENT ERRORS IN IDENTIFYING THE
INDIVIDUALS INVOLVED. SUCH INADVERTENT ERRORS ARE HEREBY CORRECTED.
/4/ SEE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA),
WASHINGTON, D.C., A/SLMR NO. 457.
/5/ AS THE MIRAMAR FIELD OFFICE WAS NOT NAMED IN THE COMPLAINT IN
THIS MATTER AND IS NOT A PARTY TO THIS PROCEEDING, I MAKE NO FINDINGS AS
TO WHETHER OR NOT ITS CONDUCT IN THE INSTANT CASE VIOLATED SECTION 19(A)
OF THE ORDER.
/6/ WITH RESPECT TO THE SECTION 19(A)(1) OF THE INSTANT COMPLAINT,
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), WASHINGTON, D.C.,
CITED ABOVE, WAS CONSIDERED FACTUALLY DISTINGUISHABLE. THUS, UNLIKE THE
SITUATION IN THAT CASE, HERE THERE WAS NO BYPASSING OF THE EXCLUSIVE
REPRESENTATIVE HEREIN BY VIRTUE OF A HIGHER LEVEL MANAGEMENT
REPRESENTATIVE DEALING DIRECTLY WITH UNIT EMPLOYEES CONCERNING THEIR
TERMS AND CONDITIONS OF EMPLOYMENT.
IN THE MATTER OF
FEDERAL AVIATION ADMINISTRATION
AIRWAY FACILITIES SECTOR
SAN DIEGO, CALIFORNIA
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R12-56
ALFRED C. POTTER
LABOR-MANAGEMENT RELATIONS SPECIALIST
FEDERAL AVIATION ADMINISTRATION
WESTERN REGION LABOR RELATIONS BRANCH
15000 AVIATION BOULEVARD
LAWNDALE, CALIFORNIA 90261
ROBERT F. GRIEM, ESQUIRE
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES
3300 W. OLIVE AVENUE, SUITE A
BURBANK, CALIFORNIA 91505
BEFORE: THOMAS W. KENNEDY
THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491 (HEREIN CALLED THE
ORDER). A NOTICE OF HEARING THEREUNDER WAS ISSUED ON AUGUST 20, 1974,
BY THE ASSISTANT REGIONAL DIRECTOR, LABOR-MANAGEMENT SERVICES
ADMINISTRATION, SAN FRANCISCO REGION, BASED ON A COMPLAINT, AMENDED
COMPLAINT, AND SECOND AMENDED COMPLAINT FILED ON MAY 14, 1974, AUGUST 6,
1974, AND AUGUST 12, 1974, RESPECTIVELY, BY NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R12-56 (HEREIN CALLED COMPLAINANT OR UNION).
THE SECOND AMENDED COMPLAINT ALLEGED THAT FEDERAL AVIATION
ADMINISTRATION, AIRWAY FACILITIES SECTOR, SAN DIEGO, CALIFORNIA (HEREIN
CALLED RESPONDENT) VIOLATED SECTION 19, SUBSECTIONS (1) AND (6) OF THE
ORDER IN THAT "(T)HE AGENCY DID NOT CONSULT OR CONFER WITH THE LOCAL
PRIOR TO ITS UNILATERAL INSTITUTION OF THE RANKING SYSTEM EVIDENCED IN
THE 6 FEBRUARY 1974 LETTER AS REQUIRED BY EXECUTIVE ORDER 11491, AS
AMENDED."
A HEARING WAS HELD BEFORE THE UNDERSIGNED DULY DESIGNATED
ADMINISTRATIVE LAW JUDGE ON SEPTEMBER 9 AND 10, 1974, IN SAN DIEGO,
CALIFORNIA. ALL PARTIES WERE REPRESENTED AND WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AND
CROSS-EXAMINE WITNESSES. OPPORTUNITY WAS ALSO AFFORDED THE PARTIES TO
ARGUE ORALLY AND TO FILE BRIEFS. BOTH RESPONDENT AND COMPLAINANT FILED
BRIEFS, WHICH HAVE BEEN DULY CONSIDERED BY THE UNDERSIGNED.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL RELEVANT TESTIMONY AND
EVIDENCE ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS.
A. BACKGROUND
AT ALL TIMES MATERIAL HEREIN COMPLAINANT WAS THE EXCLUSIVE
REPRESENTATIVE FOR COLLECTIVE BARGAINING PURPOSES IN A UNIT OF
RESPONDENT'S EMPLOYEES EMPLOYED AT MIRAMAR AIRWAY FACILITIES SECTOR
FIELD OFFICE, SAN DIEGO, CALIFORNIA. THE COLLECTIVE BARGAINING
AGREEMENT IN EFFECT BETWEEN RESPONDENT AND COMPLAINANT FROM JANUARY 3,
1969, TO APRIL 18, 1974, (IN EVIDENCE AS JOINT EXHIBIT 1), WAS A
TWO-YEAR CONTRACT, RENEWABLE FOR ONE-YEAR PERIODS. IT WAS REPLACED BY
THE CURRENT CONTRACT (IN EVIDENCE AS JOINT EXHIBIT 2), WHICH BECAME
EFFECTIVE UPON APPROVAL BY THE DIRECTOR, WESTERN REGION, FEDERAL
AVIATION ADMINISTRATION ON APRIL 18, 1974. LIKE THE EARLIER CONTRACT,
IT IS FOR A TWO YEAR PERIOD, RENEWABLE FOR ONE-YEAR PERIODS. WHILE
NEITHER CONTRACT DEFINES THE UNIT, THE EVIDENCE SHOWS, AND I FIND, THAT
THE UNION AT ALL TIMES MATERIAL HEREIN REPRESENTED ALL THE
NON-SUPERVISORY ELECTRONICS TECHNICIANS EMPLOYED AT RESPONDENT'S MIRAMAR
FIELD OFFICE HOUSED AT A NAVAL INSTALLATION ON THE OUTSKIRTS OF SAN
DIEGO, CALIFORNIA. /1/
THE FEDERAL AVIATION ADMINISTRATION, A NATIONAL AGENCY UNDER THE
DIRECTION OF THE DEPARTMENT OF TRANSPORTATION, IS DIVIDED INTO
GEOGRAPHICAL REGIONS, EACH UNDER THE CONTROL AND SUPERVISION OF A
REGIONAL DIRECTOR. /2/ IN EACH DIVISION THERE ARE AIRWAY FACILITIES
SECTOR OFFICES, EACH UNDER THE CONTROL AND SUPERVISION OF A MANAGER.
AMONG SUCH OFFICES IS THE ONE INVOLVED HEREIN, THE AIRWAY FACILITIES
SECTOR OFFICE, SAN DIEGO, CALIFORNIA. THE MANAGER OF THAT OFFICE AT ALL
TIMES MATERIAL HEREIN WAS MR. MAX KELCH. EACH SECTOR IS RESPONSIBLE
WITHIN ITS OWN AREA FOR THE FIELD MAINTENANCE OF THE NAVIGATIONAL AIDS
AND EQUIPMENT USED IN THE AIR TRAFFIC CONTROL SYSTEM INVOLVED IN
CONTROLLING MILITARY AND CIVILIAN AIRCRAFT. TO ACCOMPLISH THIS MISSION
THERE ARE SEVERAL FIELD OFFICES IN EACH SECTOR, SUCH AS THE ONE INVOLVED
IN THIS CASE, MIRAMAR FIELD OFFICE, UNDER THE SUPERVISION OF MR. RONALD
RUDOLPH, CHIEF OF THAT FIELD OFFICE DURING THE PERIOD INVOLVED HEREIN.
AS EARLY AS 1969 IT WAS KNOWN THAT MOST OF THE EQUIPMENT AT THE
MIRAMAR FIELD OFFICE WAS SCHEDULED TO BE REPLACED WITH MORE MODERN (AND
IN MOST CASES MORE COMPLICATED) SYSTEMS. THUS, IN AUGUST 1969 THE
EMPLOYEES AT MIRAMAR WERE NOTIFIED THAT THE CHANGES WOULD TAKE PLACE
OVER THE NEXT FEW YEARS AND THAT THE TECHNICIANS SHOULD PLAN FOR
TRAINING NECESSARY TO QUALIFY THEM FOR MAINTENANCE ASSIGNMENTS. AT THAT
TIME THERE WERE EIGHT ELECTRONICS TECHNICIANS ASSIGNED TO MIRAMAR, AND
THE TRAINING REQUIRED FOR MAINTENANCE OF THE NEW EQUIPMENT VARIED WITH
EACH SYSTEM AND DEPENDED ON PREREQUISITE TRAINING ALREADY ACCOMPLISHED
BY EACH ELECTRONICS TECHNICIAN. AMONG THE NEW PROJECTED SYSTEMS TO BE
INSTALLED WAS ARTS III (AUTOMATED RADAR TERMINAL SYSTEM) TO REPLACE ARTS
II. THIS WAS CONSIDERED THE MOST IMPORTANT PROJECTED SYSTEMS CHANGE,
SINCE IT WOULD CONSTITUTE THE MAJOR FACILITY OR WORK LOAD AT MIRAMAR AND
SINCE THE MAINTENANCE OF THE NEW EQUIPMENT INVOLVED IN THAT SYSTEM
REQUIRED TRAINING OBTAINED THROUGH RESIDENCE AT THE FAA ACADEMY IN
OKLAHOMA CITY FOR A PERIOD IN EXCESS OF SIX MONTHS.
AS THE SYSTEM CHANGEOVERS GRADUALLY TOOK PLACE AND AS ELECTRONICS
TECHNICIANS WERE DETAILED FOR TRAINING, ADDITIONAL TECHNICIANS WERE
ASSIGNED TO MIRAMAR, SO THAT BY THE END OF 1973 THERE WERE TWELVE
ELECTRONICS TECHNICIANS ASSIGNED TO THE MIRAMAR FIELD OFFICE. NOT ALL
HAD YET BEEN FULLY TRAINED WITH REGARD TO THE NEW SYSTEMS BUT IT WAS
GENERALLY FELT OR KNOWN BY ALL THAT THE MIRAMAR FACILITY WAS OVERSTAFFED
AND THAT AS TRAINING WAS COMPLETED AND THE NEW SYSTEMS PUT INTO
OPERATION SOMETHING WOULD HAVE TO GIVE. AND THAT SOMETHING WOULD RESULT
IN THE TRANSFER OF ELECTRONICS TECHNICIANS TO OTHER FAA LOCATIONS.
ON MARCH 6, 1974, SOMETHING DID HAPPEN. ON THAT DAY SECTOR MANAGER
KELCH SENT TO CHIEF RUDOLPH A TWO-PAGE MEMO UNDER THE SUBJECT:
"STAFFING READJUSTMENT, MIRAMAR AFSFO." /3/ THAT MEMO ANNOUNCED A
COMPLICATED FORMULA FOR RANKING THE ELECTRONICS TECHNICIANS FOR
RETENTION IN ONE OF THREE CATEGORIES, DEPENDING ON WHICH SYSTEMS THEY
WERE TRAINED AND CERTIFIED FOR MAINTENANCE ASSIGNMENTS. THE EMPHASIS
WAS ON THE SYSTEM KNOWN AS ARTS (DESCRIBED SUPRA). IN CATEGORY I WERE
TO BE THOSE WHO WERE TRAINED AND CERTIFIED IN ALL THREE NAMED SYSTEMS.
CATEGORY II WAS TO CONTAIN THOSE TRAINED AND CERTIFIED IN ARTS AND ONE
OF THE OTHER TWO SYSTEMS. IN CATEGORY III WERE TO BE PLACED THOSE WHOSE
TRAINING AND CERTIFICATION DID NOT INCLUDE ARTS BUT DID INCLUDE ONE OR
BOTH OF THE OTHER TWO SYSTEMS. TECHNICIANS WITHIN EACH GROUP WERE THEN
TO BE RANKED BY A NUMERICAL SCORE DERIVED FROM THE PERFORMANCE
EVALUATION RECORD (PER) AND TRAINING GRADES RECEIVED IN COURSES INVOLVED
THE THREE SYSTEMS. POINTS WERE ASSIGNED FOR VARIOUS DEGREES OF
EFFICIENCY, WITH EXTRA POINTS ASSIGNED FOR AWARDS OR QUALITY
WITHIN-GRADE PROMOTIONS, AND THE TRAINING SCORE WAS TO BE ARRIVED AT
THROUGH THE FOLLOWING FORMULA:
THE MEMO CONCLUDED WITH THE FOLLOWING INSTRUCTIONS:
RANK EACH EMPLOYEE WITHIN GROUPS I, II, AND III USING THE ABOVE, THE
SUM OF THE PER AND
TRAINING SCORES.
SHOULD YOU DESIRE TRAINING GRADE INFORMATION, ETC., THIS OFFICE WILL
FURNISH ANY DATE YOU
MAY REQUIRE TO ACCOMPLISH THE ABOVE.
USING THE RETENTION GROUPS AS LISTED, YOU SHOULD FURNISH TO THIS
OFFICE NOT LATER THAN
MARCH 15, 1974, THE NAMES OF EIGHT INDIVIDUALS DETERMINED TO BE THE
HIGHEST RANKING, STARTING
WITH GROUP I, THEN THROUGH GROUPS II AND III. THE REMAINING FOUR
EMPLOYEES WILL BE OFFERED
REASSIGNMENT WITHIN THE SECTOR, OR POSITIONS OUTSIDE THE SECTOR WHEN
THEY ARE AVAILABLE.
THE AUTHOR OF THAT MEMO, SECTOR MANAGER MAX C. KELCH, HAD BEEN
CONSIDERING FOR SOME TIME THE PROMULGATION OF A RANKING SYSTEM FOR
RETENTION PURPOSES AT THE MIRAMAR INSTALLATION. THAT LOCATION WAS THE
ONLY ONE OF SIX IN MANAGER KELCH'S SECTOR WHICH WAS SCHEDULED TO EMPLOY
THE NEW ARTS III SYSTEM, AND HE WANTED TO COMPLETE THE STUDY ON STAFFING
AND RANKING BEFORE HIS SCHEDULED TRANSFER TO A DIFFERENT POSITION IN
MARCH, 1974. HE HAD DISCUSSIONS WITH, AND SOUGHT INPUT FROM, THE
MAINTENANCE OPERATIONS BRANCH CONCERNING STAFFING AND HE DISCUSSED THE
MATTER OF A FORMULA FOR RANKING FOR RETENTION PURPOSES WITH THE MANPOWER
DIVISION. HE HAD NO DISCUSSIONS WITH ANY REPRESENTATIVES OF THE UNION,
AND CHIEF RUDOLPH HAD ONLY "GENERAL KNOWLEDGE" THAT A STAFFING AND
RANKING PLAN WERE UNDER STUDY AT THE SECTOR LEVEL. /4/
MANAGER KELCH'S MEMO WAS RECEIVED BY CHIEF RUDOLPH ON THURSDAY
AFTERNOON, MARCH 7, 1974. IT WAS NOT UNTIL MONDAY AFTERNOON, MARCH 11,
THAT HE DISCUSSED THE MEMO WITH THE PRESIDENT OF THE UNION, DAVID
EDWARDS, ONE OF THE ELECTRONICS ENGINEERS EMPLOYED AT MIRAMAR. AT THAT
TIME CHIEF RUDOLPH HAD STUDIES THE MEMO OVER THE WEEK-END AND HAD MADE
NOTES AS AN AID TO PREPARING THE REQUIRED RESPONSE. AMONG THOSE NOTES
WAS A TENTATIVE RANKING OF THE EMPLOYEES, BUT THE TRAINING SCORES HAD TO
BE OBTAINED FROM THE SECTOR OFFICE BEFORE THE RANKING COULD BE
FINALIZED. ALTHOUGH DAVIS HAD FELT THAT THE MIRAMAR INSTALLATION WAS
OVERSTAFFED AND FEARED THAT SOME OF THE ELECTRONICS TECHNICIANS MAY LOSE
THEIR JOBS OR BE TRANSFERRED, IT WAS NOT UNTIL HIS CONVERSATION WITH
KELCH ON MARCH 11 THAT DAVID LEARNED THAT A PLAN HAD BEEN FULLY
DEVELOPED WITH A RANKING FORMULA TO DETERMINE WHO WOULD BE RETAINED AT
MIRAMAR. AND THAT CONVERSATION WITH KELCH DID NOT INVOLVE A DISCUSSION
OF THE MERITS OF THE RANKING SYSTEM; RATHER IT WAS A NOTIFICATION OF A
PLAN DECIDED UPON, WITH KELCH STATING THAT HE WAS PREPARING TO RESPOND
BY THE DEADLINE IMPOSED AND WAS GOING TO EXPLAIN THE MEMO TO THE
ELECTRONICS ENGINEERS AT AN "ALL HANDS" MEETING SCHEDULED FOR THE
FOLLOWING DAY. AT THE CONCLUSION OF THE MEETING OF MARCH 11, KELCH TOLD
DAVID HE WOULD APPRECIATE ANY "INPUT" DAVIS HAD CONCERNING THE PLAN
OUTLINED IN THE MARCH 6 MEMO. DAVID REPLIED THAT HE FELT THAT ANY
LAY-OFFS OR TRANSFERS SHOULD BE ACCOMPLISHED THROUGH ESTABLISHED
REDUCTION-IN-FORCE (RIF) PROCEDURES RATHER THAN THROUGH THE RANKING
SYSTEM OUTLINED IN THE MEMO. /5/ ON MARCH 11 KELCH EXPLAINED THE
CONTENTS OF THE MARCH 6 MEMO TO THOSE ELECTRONIC ENGINEERS WHO WERE ON
DUTY AT THE TIME AND THEN POSTED THE MEMO FOR ALL TO READ AND INITIAL.
THERE WERE NO FURTHER DISCUSSIONS WITH THE UNION, AND THE PLAN, WITH A
FEW MODIFICATIONS, WAS EVENTUALLY PUT INTO EFFECT. /6/
COMPLAINANT ALLEGES THAT THE UNILATERAL FORMULATION OF THE STAFFING
READJUSTMENT PLAN AT MIRAMAR CONSTITUTED A VIOLATION OF SECTION 19(A)(6)
OF THE ORDER AND DERIVATIVELY A VIOLATION OF SECTION 19(A)(I) OF THE
ORDER. ALTHOUGH THE 19(A)(2) ALLEGATION CONTAINED IN THE INITIAL
COMPLAINT WAS LATER AMENDED OUT, COMPLAINANT ARGUES IN ITS BRIEF THAT
RESPONDENT'S READJUSTMENT PLAN WAS THE FINAL STEP IN A SCHEME TO "BUST"
THE UNION AND THAT FAVORITISM WAS SHOWN NON-UNION EMPLOYEES IN SELECTION
FOR FOR TRAINING. /7/
RESPONDENT'S POSITION IS THAT IT WAS UNDER NO OBLIGATION TO CONSULT
OR CONFER WITH THE UNION CONCERNING THE STAFFING READJUSTMENT PLAN,
SINCE IT WAS NOT THE "EMPLOYER" NAMED IN THE CONTRACT. THE ARGUMENT IS
THAT THE PROMULGATION OF THE PLAN WAS EFFECTED BY A HIGHER LEVEL WHICH
WAS UNDER NO OBLIGATION TO DEAL WITH THE UNION. RESPONDENT FURTHER
ASSERTS A SECTION 19(D) DEFENSE, ARGUING THAT ANY EMPLOYEE WHO WAS
ADVERSELY AFFECTED BY THE STAFFING READJUSTMENT PLAN WOULD PURSUE HIS
REMEDY THROUGH THE ESTABLISHED GRIEVANCE PROCEDURE. FINALLY, RESPONDENT
CONTENDS THAT THE ONLY "EMPLOYER" HEREIN ON WHOM THERE WAS ANY
OBLIGATION TO MEET AND CONFER WITH THE UNION WAS RONALD RUDOLPH, CHIEF
OF THE MIRAMAR FIELD OFFICE, AND THAT HE FULFILLED ANY OBLIGATION HE HAD
UNDER THE ORDER.
THE ONLY ISSUE TO BE RESOLVED IN THIS CASE IS WHETHER OR NOT
RESPONDENT HAS AN OBLIGATION TO CONSULT AND CONFER WITH THE UNION ABOUT
THE STAFFING READJUSTMENT PLAN, WHICH INCORPORATED THE COMPLICATED
RETENTION FORMULA DESCRIBED ABOVE. I DEEM IT APPROPRIATE AT THE OUTSET
TO DISPOSE OF THE SECTION 19(D) DEFENSE ASSERTED BY RESPONDENT, SINCE IN
MY OPINION LITTLE DISCUSSION IS REQUIRED. RESPONDENT ARGUES THAT ANY
EMPLOYEE ADVERSELY AFFECTED BY THE PROMULGATED PLAN SHOULD SEEK REDRESS
THROUGH THE ESTABLISHED GRIEVANCE PROCEDURE. IN THE FIRST PLACE SECTION
19(D) GIVES THE EMPLOYEE A CHOICE OF SEEKING REDRESS THROUGH A GRIEVANCE
PROCEDURE OF THE APPLICABLE PROVISIONS OF THE ORDER. BUT EVEN ASSUMING
THAT RESPONDENT MEANS TO ARGUE THE EXISTENCE OF AN APPEALS PROCEDURE,
WHICH WOULD BRING INTO PLAN THE OTHER PORTION OF SECTION 19(D), THAT,
TOO, MUST FALL BECAUSE MORE IMPORTANT IS THE FACT THAT THE OBLIGATION TO
CONSULT AND CONFER IS AN OBLIGATION OWED THE UNION AND THE RIGHT TO SUCH
CONSULTATION IS A RIGHT OF THE UNION, NOT OF THE EMPLOYEES (SEE,
INTERNATIONAL REVENUE SERVICE, SOUTHEAST SERVICE CENTER, CHAMBLEE,
GEORGIA, A/SLMR NO. 448). MORE COMPLICATED IS RESPONDENT'S ARGUMENT
THAT IT IS NOT THE EMPLOYER AND THEREFORE HAD NO OBLIGATION WHATSOEVER
TO THE UNION.
RESPONDENT CITES THE CONTRACT (JOINT EXHIBIT 1) TO SHOW THAT IT WAS
NOT THE EMPLOYER. BUT RESPONDENT WAS A HIGHER ECHELON COMPLETELY IN
CHARGE OF THE "EMPLOYER" NAMED IN THE CONTRACT AND RESPONSIBLE FOR ITS
STAFFING. WE ARE NOT HERE DEALING WITH REGULATIONS ISSUED BY A HIGHER
ECHELON TO SEVERAL LOWER ECHELONS: HERE WE HAVE A COMPLICATED FORMULA
DERIVED FOR ONE INSTALLATION, WHICH WAS PROMULGATED WITHOUT ANY
DISCUSSION WITH THE UNION REPRESENTING THE EMPLOYEES AFFECTED. AND EVEN
THOUGH THE SAME OR SIMILAR FORMULA MAY LATER BE APPLIED TO THE OTHER
FIELD OFFICES IN THE SECTOR, THE INSTRUCTIONS ISSUED IN THIS CASE
APPLIED ONLY TO THE MIRAMAR FIELD OFFICE, THE ONLY FIELD OFFICE WHERE
THE ARTS III SYSTEM WAS TO BE INSTALLED, AND THERE WAS NO OBLIGATION TO
BARGAIN ABOUT THE FORMULA TO BE USED FOR RETENTION PURPOSES (SEE, UNITED
FEDERATION OF COLLEGE TEACHERS, LOCAL 1460 AND U.S. MERCHANT MARINE
ACADEMY, FLRC NO. 71A-15 (NOVEMBER 20, 1972); DEPARTMENT OF DEFENSE,
AIR FORCE LANGUAGE INSTITUTE, LACKLAND AIR FORCE BASE, FLRC NO. 73A-64
(OCTOBER 25, 1974). TO UPHOLD RESPONDENT'S CONTENTION THAT THERE WAS NO
OBLIGATION TO CONSULT OR CONFER WITH THE UNION WOULD, AS THE COUNCIL
STATED IN U.S. MERCHANT MARINE ACADEMY, SUPRA, "BE HOLDING, IN EFFECT,
THAT AN AGENCY MAY UNILATERALLY LIMIT THE SCOPE OF ITS BARGAINING
OBLIGATION ON OTHERWISE NEGOTIABLE MATTERS PECULIAR TO AN INDIVIDUAL
UNIT, IN A SINGLE FIELD ACTIVITY, MERELY BY ISSUING REGULATIONS FROM A
HIGHER LEVEL. WE BELIEVE THE BARGAINING OBLIGATION IN SECTION 11(A) OF
THE ORDER MAY NOT BE DILUTED BY UNILATERAL ACTION OF THIS KIND."
WHILE, AS STATED IN THE FINDINGS ABOVE, THE UNION'S REPRESENTATIVE
STATUS WAS LIMITED TO A UNIT OF ELECTRONICS ENGINEERS AT THE MIRAMAR
FIELD OFFICE, THE EMPLOYER WAS THE AGENCY, FEDERAL AVIATION
ADMINISTRATION, AND COMPLAINANT HAS PROPERLY NAMED THE AGENCY'S AIRWAY
FACILITIES SECTOR AS THE RESPONDENT. IN THAT RESPECT THIS CASE IS
DISTINGUISHABLE FROM IOWA STATE AGRICULTURAL STABILIZATION AND
CONSERVATION OFFICE, DEPARTMENT OF AGRICULTURE, A/SLMR NO. 453 (NOVEMBER
5, 1974). IN THAT CASE THE ASSISTANT SECRETARY ADOPTED THE FINDINGS AND
CONCLUSIONS OF THE ADMINISTRATIVE LAW JUDGE DISMISSING THE CASE ON THE
GROUNDS THAT THE IMPLEMENTATION OF THE RIF INVOLVED IN THAT CASE WAS THE
PRODUCT OF A HIGHER ECHELON AND NOT A RESULT OF ANY DECISION OR PLANNING
ON THE PART OF THE RESPONDENT NAMED IN THE COMPLAINT AND THAT THE NAMED
RESPONDENT "DID NOT DO ANYTHING OR FAIL TO DO ANYTHING IN VIOLATION OF
THE EXECUTIVE ORDER." THE INSTANT CASE DOES NOT SUFFER FROM ANY SUCH
PLEADING DEFECT. RESPONDENT WAS OBLIGATED, EITHER THROUGH THE SECTOR
OFFICE OR THROUGH ITS MANAGER OF THE MIRAMAR FIELD OFFICE, TO DISCUSS
WITH THE UNION, NOT THE ADMINISTRATIVE DECISION THAT THE FIELD OFFICE
WAS OVERSTAFFED AND MUST BE REDUCED, BUT THE MEANS USED TO ACCOMPLISH
THE REDUCTION, THE FORMULA TO BE USED, AND THE EFFECT IT WOULD HAVE ON
THE EMPLOYEES. THIS RESPONDENT FAILED TO DO. AND THIS FACT IS NOT
CHANGED BY THE SEMANTIC ARGUMENT THAT RESPONDENT DID NOT REFUSE TO
BARGAIN BECAUSE RESPONDENT WAS NOT REQUESTED TO BARGAIN. THE SIMPLE
FACT IS THAT THE PLAN WAS FAIT ACCOMPLI BY THE TIME THE UNION LEARNED OF
ITS EXISTENCE. THE POLITE REQUEST FOR "INPUT" AT THAT TIME HARDLY
FULFILLED THE OBLIGATION AS CONTEMPLATED BY SECTION 11(A) OF THE ORDER.
(CF. DEPARTMENT OF DEFENSE, AIR FORCE LANGUAGE INSTITUTE, A/SLMR NO.
322; ALBANY METALLURGY RESEARCH CENTER, A/SLMR NO. 408).
WHILE I FOUND, CONTRARY TO COMPLAINANT'S ASSERTION, THAT RESPONDENT
WAS NOT ENGAGED IN A PLAN TO GET RID OF THE UNION AND DID NOT ENGAGE IN
DISCRIMINATORY SELECTION FOR TRAINING BASED ON UNION CONSIDERATION,
EVIDENCE OF SUCH ANTI-UNION ANIMUS OR MOTIVE IS NOT A PREREQUISITE TO
FINDING A REFUSAL OR FAILURE TO BARGAIN IN THE CIRCUMSTANCES OF THIS
CASE. IT IS NOTEWORTHY THAT IN ALL OF THE MEMORANDA OR CORRESPONDENCE
FROM THE SECTOR OFFICE TO THE MIRAMAR FIELD OFFICE CONCERNING THE
STAFFING AND TRAINING PROBLEMS AND PROGRAMS THE UNION WAS NEVER
MENTIONED. THERE WERE EXHORTATIONS TO DISCUSS THE MATTER WITH THE
EMPLOYEES INVOLVED AND THERE WERE INSTRUCTIONS TO POST THE NEW STAFFING
PLAN ON THE BULLETIN BOARD. THERE WERE EVEN STATEMENTS EXPRESSING THE
IMPORTANCE OF BEING FAIR. BUT THE REPRESENTATIVE STATUS OF THE UNION,
WHETHER BY DESIGN OR OTHERWISE, WAS TOTALLY IGNORED. SUCH CONDUCT IS
INCONSISTENT AND INCOMPATIBLE WITH THE PROVISIONS OF SECTION 11(A) OF
THE ORDER, AND I CONCLUDE THAT IN THE CIRCUMSTANCES SET OUT ABOVE
RESPONDENT'S FAILURE TO KEEP THE UNION INFORMED WITH REFERENCE TO
DEVELOPMENT OF ITS STAFFING PLAN AT ITS MIRAMAR FIELD OFFICE AND ITS
FAILURE TO AFFORD THE UNION A MEANINGFUL OPPORTUNITY TO DISCUSS THE
MATTER AND ITS EFFECT ON THE UNIT EMPLOYEES CONSTITUTED A VIOLATION OF
SECTION 19(A)(6) OF THE ORDER. I FURTHER FIND AND CONCLUDE THAT
RESPONDENT'S IMPROPER CONDUCT IN THIS REGARD NECESSARILY HAD A
RESTRAINING INFLUENCE UPON EMPLOYEES AND HAS A CONCOMITANT COERCIVE
EFFECT UPON THEIR RIGHTS ASSURED BY THE ORDER. ACCORDINGLY, I CONCLUDE
THAT RESPONDENT'S CONDUCT HEREIN ALSO VIOLATED SECTION 19(A)(1) OF THE
ORDER.
HAVING FOUND THAT RESPONDENT, BY UNILATERALLY DEVELOPING THE
RETENTION FORMULA INCORPORATED IN THE STAFFING READJUSTMENT PLAN FOR ITS
MIRAMAR FIELD OFFICE, HAS ENGAGED IN CONDUCT WHICH IS IN VIOLATION OF
SECTION 19, SUBSECTIONS (1) AND (6) OF THE ORDER, I RECOMMEND THAT THE
ASSISTANT SECRETARY ADOPT THE FOLLOWING ORDER DESIGNED TO EFFECTUATE THE
POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(A) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT RESPONDENT, FEDERAL
AVIATION ADMINISTRATION AIRWAY FACILITIES SECTOR, SAN DIEGO CALIFORNIA,
SHALL:
1. CEASE AND DESIST FROM:
(A) FORMULATING AND PROMULGATING ANY STAFFING READJUSTMENT PLAN
INVOLVING EMPLOYEES AT THE
MIRAMAR FIELD OFFICE, OR ANY OTHER MATTERS AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES
IN THE UNIT, WITHOUT GIVING NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R12-56, THE
EMPLOYEE'S EXCLUSIVE REPRESENTATIVE, THE OPPORTUNITY TO CONSULT AND
CONFER WITH RESPONSIBLE
MANAGEMENT REPRESENTATIVES CONCERNING SUCH MATTERS.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) NOTIFY NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
R12-56, AND GIVE IT THE
OPPORTUNITY TO CONSULT AND CONFER WITH RESPONDENT CONCERNING ANY
STAFFING READJUSTMENT PLAN OR
RETENTION FORMULA, OR ANY OTHER MATTERS AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES IN
THE UNIT.
(B) POST AT ITS MIRAMAR FIELD OFFICE FACILITY COPIES OF THE ATTACHED
NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT
RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
MANAGER OF RESPONDENT'S
AIRWAY FACILITIES SECTOR OFFICE, SAN DIEGO, CALIFORNIA, AND THEY
SHALL BE POSTED AND
MAINTAINED FOR SIXTY (60) CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING ALL
PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. RESPONDENT
SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR
COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN
WRITING WITHIN TWENTY (20) DAYS FROM THE DATE OF THIS ORDER AS TO
WHAT STEPS HAVE BEEN TAKEN
TO COMPLY HEREWITH.
DATED: DECEMBER 20, 1974
WASHINGTON, D.C.
WE WILL NOT FORMULATE OR PROMULGATE ANY STAFFING READJUSTMENT PLAN
INVOLVING EMPLOYEES AT THE MIRAMAR FIELD OFFICE, OR ANY OTHER MATTER
AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT, WITHOUT
GIVING NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-56, THE
EMPLOYEES' EXCLUSIVE REPRESENTATIVE, THE OPPORTUNITY TO CONSULT AND
CONFER WITH RESPONSIBLE MANAGEMENT REPRESENTATIVES CONCERNING SUCH
MATTERS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
WE WILL NOTIFY NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
R12-56, AND GIVE IT THE OPPORTUNITY TO CONSULT AND CONFER WITH
MANAGEMENT CONCERNING ANY STAFFING READJUSTMENT PLAN OR RETENTION
FORMULA, OR ANY OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT.
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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR WHOSE ADDRESS
IS: ROOM 9061, FEDERAL OFFICE BUILDING, 450 GOLDEN GATE AVENUE, SAN
FRANCISCO, CALIFORNIA 94102.
/1/ THE "EMPLOYER" IS DEFINED IN ARTICLE I OF THE EARLIER CONTRACT AS
"THE CHIEF, AIRWAY FACILITIES SUB-SECTOR 18729, A FACILITY OF THE
WESTERN REGION, FEDERAL AVIATION ADMINISTRATION." THE CURRENT CONTRACT
DEFINES "EMPLOYER" AS "THE CHIEF, MIRAMAR AIRWAY FACILITIES SECTOR FIELD
OFFICE, SAN DIEGO, CALIFORNIA." DESPITE WHAT MAY BE DESCRIBED AS
INARTFUL LANGUAGE IN THE CONTRACTS, I FIND THAT AT ALL TIMES MATERIAL
HEREIN THE EMPLOYER WAS THE FEDERAL AVIATION ADMINISTRATION. THE
UNION'S REPRESENTATIVE STATUS, INSOFAR AS THIS MATTER IS CONCERNED, WAS
LIMITED TO THE UNIT OF ELECTRONICS ENGINEERS EMPLOYED AT THE EMPLOYER'S
MIRAMAR AIRWAY FACILITIES SECTOR FIELD OFFICE.
/2/ BOTH COLLECTIVE BARGAINING AGREEMENTS, DESCRIBED SUPRA, WERE
APPROVED BY THE DIRECTOR, WESTERN REGION, SUCH APPROVAL BEING REQUIRED
BY THE TERMS OF THE AGREEMENTS AS A CONDITION TO THEIR BECOMING
EFFECTIVE.
/3/ THE MEMO, IN EVIDENCE AS JOINT EXHIBIT 3, CONTAINS THE DATE OF
FEBRUARY 6, 1974, BUT IT WAS STIPULATED BY THE PARTIES THAT THE MEMO WAS
ACTUALLY TYPED AND SENT ON MARCH 6, 1974.
/4/ HOW "GENERAL" THE KNOWLEDGE WAS IS CONJECTURAL. ACCORDING TO
RUDOLPH, HIS IMPUT WAS LIMITED TO ADVICE THAT "WE WERE GOING TO HAVE TO
DEVELOP A PLAN WHICH IS EQUITABLE TO EVERYBODY" AND A STATEMENT THAT "I
MUST HAVE PEOPLE WHO CAN DO THE JOB." IT IS CLEAR, HOWEVER, THAT RUDOLPH
WAS KEPT ADVISED TO SOME EXTENT, SINCE HE RECEIVED A COPY OF THE
FEBRUARY 12 MEMO TO KELCH FROM THE CHIEF, RECRUITING/REPLACEMENT STAFF,
MAKING CERTAIN SUGGESTIONS IN THE PERSONNEL EVALUATION PLAN WHICH WERE
LATER INCORPORATED IN THE RETENTION FORMULA SET OUT IN THE MARCH 6 MEMO.
(SEE COMPLAINANT'S EXHIBIT 3).
/5/ DAVIS' CONCERN OVER THE STAFFING PROBLEM AT MIRAMAR AND WHAT
MIGHT HAPPEN TO SOME OF THE UNION'S MEMBERS HAD PREVIOUSLY BEEN
EXPRESSED BY DAVIS IN LETTER TO HIS UNION'S HEADQUARTERS, WHICH IN TURN
COMMUNICATED WITH RESPONDENT (SEE COMPLAINANT'S EXHIBITS 4 THROUGH 9).
/6/ BUDGETARY CONSIDERATIONS DELAYED THE IMPLEMENTATION OF THE PLAN
FOR SEVERAL MONTHS, SO CERTAIN CHANGES WERE NECESSARY TO REFLECT THE
CHANGED CONDITIONS. OTHER CHANGES CAME ABOUT THROUGH VOLUNTARY OFFERS
TO TRANSFER. OTHERWISE THE PLAN PUT INTO EFFECT WAS AS ORIGINALLY
PROMULGATED.
/7/ I DO NOT CONSIDER A SECTION 19(A)(2) VIOLATION TO BE IN ISSUE IN
THIS CASE, SINCE IT WAS NOT ALLEGED IN THE COMPLAINT AS AMENDED.
EVIDENCE WAS ALLOWED, HOWEVER, FOR THE LIMITED PURPOSE OF SHOWING
ANTI-UNION ANIMUS OR MOTIVE ON THE PART OF RESPONDENT. WHILE I HAVE NOT
DEEMED IT APPROPRIATE OR NECESSARY TO SET OUT SUCH EVIDENCE IN DETAIL,
SUFFICE IT TO SAY THAT IT CONSISTED, FOR THE MOST PART, OF OPINION
TESTIMONY, AND COMPLAINANT HAS FAILED TO PROVE THAT RESPONDENT WAS
MOTIVATED BY ANTI-UNION CONSIDERATIONS IN ITS SELECTION FOR TRAINING OR
THAT THE STAFFING READJUSTMENT PROGRAM WAS PART OF AN OVER-ALL PLAN BY
RESPONDENT TO RID ITSELF OF THE UNION.
5 A/SLMR 532; P. 442; CASE NO. 32-3793(CA); JUNE 30, 1975.
DEPARTMENT OF THE ARMY,
PICATINNY ARSENAL,
DOVER, NEW JERSEY
A/SLMR NO. 532
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFL-CIO), LOCAL UNION 225,
(COMPLAINANT) ALLEGING ESSENTIALLY THAT THE RESPONDENT VIOLATED SECTION
19(A)(1) AND (4) OF THE ORDER BY THE DISCRIMINATORY CONDUCT OF THE
RESPONDENT'S BRANCH CHIEF IN HANDLING REQUESTS FOR TRAINING FROM THE
COMPLAINANT'S PRESIDENT IN A MANNER DIFFERENT FROM THAT USED BY HIM IN
HANDLING SIMILAR REQUESTS FROM OTHER EMPLOYEES, BECAUSE THE
COMPLAINANT'S PRESIDENT HAD FILED PREVIOUSLY AN UNFAIR LABOR PRACTICE
COMPLAINT AGAINST THE RESPONDENT.
NOTING THAT THE BRANCH CHIEF, WHO WAS CHARGED WITH A PREVIOUS UNFAIR
LABOR PRACTICE BY THE COMPLAINANT, DID NOT APPROVE OR DISAPPROVE THE
REQUESTS FOR TRAINING BUT, RATHER, FORWARDED THE REQUESTS TO HIS
SUPERVISORS WHO SUBSEQUENTLY APPROVED THEM WITHOUT ANY UNUSUAL DELAY,
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT DID NOT
DISCRIMINATE AGAINST THE COMPLAINANT'S PRESIDENT IN VIOLATION OF SECTION
19(A)(1) AND (4) OF THE ORDER.
THE ASSISTANT SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE AND ORDERED THAT THE
COMPLAINT BE DISMISSED IN ITS ENTIRETY.
DEPARTMENT OF THE ARMY,
PICATINNY ARSENAL,
DOVER, NEW JERSEY
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (AFL-CIO),
LOCAL UNION 225
ON APRIL 29, 1975, ADMINISTRATIVE LAW JUDGE RHEA M. BURROW ISSUED HIS
REPORT AND RECOMMENDATIONS 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 EXCEPTIONS
WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS, AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING
THE COMPLAINANT'S EXCEPTIONS, /1/ I HEREBY ADOPT THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS /2/ AND RECOMMENDATIONS.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 32-3793(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 30, 1975
/1/ IN ITS EXCEPTIONS, THE COMPLAINANT ASSERTED THAT ITS RIGHTS TO A
FAIR AND IMPARTIAL HEARING WAS IMPAIRED BY THE ASSIGNMENT IN THIS MATTER
OF THE SAME ADMINISTRATIVE LAW JUDGE WHO HAD HEARD A PREVIOUS CASE
INVOLVING THE SAME PARTIES AT A TIME WHEN EXCEPTIONS TO THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS IN THE PREVIOUS
CASE WERE PENDING BEFORE THE ASSISTANT SECRETARY. NOTING THE
COMPLAINANT'S FAILURE TO RAISE SUCH OBJECTION AT THE HEARING AND, THUS,
AFFORDING THE ADMINISTRATIVE LAW JUDGE THE OPPORTUNITY TO WITHDRAW IF HE
CONSIDERED SUCH ACTION NECESSARY, AND THE LACK OF ANY RECORD EVIDENCE
THAT A FAIR AND IMPARTIAL HEARING WAS NOT CONDUCTED IN THIS MATTER, I
HEREBY REJECT THE COMPLAINANT'S CONTENTION IN THIS REGARD.
/2/ ADDITIONALLY, I DO NOT FIND THAT ANY STATEMENTS MADE BY DIRECTOR
KOCH DURING HIS CONVERSATION OF AUGUST 9, 1974, WITH THE COMPLAINANT'S
VICE PRESIDENT, GEORGE KELLY, CONSTITUTED INTERFERENCE, RESTRAINT, OR
COERCING WITHIN THE MEANING OF SECTION 19(A)(1) OF THE ORDER.
DEPARTMENT OF THE ARMY
PICATINNY ARSENAL
DOVER, NEW JERSEY
AND
LOCAL UNION 225
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
JOHN J. CRAWLEY
CHIEF COUNSEL
DEPARTMENT OF THE ARMY
PICATINNY ARSENAL
DOVER, NEW JERSEY 07801
WILLIAM F. KOCH
WHARTON GARDENS
WHARTON, NEW JERSEY 07885
JOSEPH GIRLANDO
NATIONAL REPRESENTATIVE
300 MAIN STREET (AFGE-- AFL-CIO)
ORANGE, NEW JERSEY 07050
GEORGE A. KELLY
VICE PRESIDENT
AFGE LOCAL UNION 225
PICATINNY ARSENAL, BUILDING 1610
DOVER, NEW JERSEY 07801
BEFORE: RHEA M. BURROW
THIS PROCEEDING AROSE UPON THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT ON OCTOBER 9, 1974 BY GEORGE A. KELLY, VICE PRESIDENT,
CLASSIFICATION ACT EMPLOYEES, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL UNION 225 (HEREINAFTER REFERRED TO AS
COMPLAINANT AND/OR UNION), AGAINST THE PICATINNY ARSENAL, DEPARTMENT OF
THE ARMY, (HEREINAFTER REFERRED TO AS THE RESPONDENT), ALLEGING THAT THE
RESPONDENT ENGAGED IN CERTAIN CONDUCT DURING THE WEEK OF AUGUST 11,
1974, VIOLATIVE OF SECTIONS 19(A)(1) AND (4) OF EXECUTIVE ORDER 11491,
AS AMENDED, (HEREINAFTER REFERRED TO AS THE ORDER). THE COMPLAINT
ALLEGED, IN SUBSTANCE, THAT ALBERT NASH, CHIEF OF FUZE ENGINEERING
BRANCH, ADED DISCRIMINATED AGAINST THE PRESIDENT OF AFGE LOCAL 225, MS.
G. NANCY MCALENEY, BECAUSE OF MS. MCALENEY'S PREVIOUS FILING OF A
FORMAL UNFAIR LABOR PRACTICE CHARGE UNDER THE PROVISIONS OF THE
EXECUTIVE ORDER. THE SPECIFIC DISCRIMINATION INVOLVES MR. NASH'S
HANDLING OF MS. MCALENEY'S APPLICATION OR REQUEST MADE ON AUGUST 8,
1974, FOR TWO COURSES OF TRAINING UNDER THE UPWARD MOBILITY PROGRAM, IN
A MANNER DIFFERENT THAN THAT USED BY HIM IN HANDLING SIMILAR REQUESTS
FROM OTHER EMPLOYEES UNDER HIS SUPERVISION. MR. NASH'S ATTEMPT TO
JUSTIFY HIS ACTION BECAUSE OF HIS INVOLVEMENT IN ANOTHER UNFAIR LABOR
PRACTICE WAS NOT JUSTIFIED AND CONSTITUTED THE LATEST INCIDENT OF
HARASSMENT IN A SERIES OF DISCRIMINATORY ACTIONS TAKEN AGAINST MS.
MCALENEY BY HIM. THE COMPLAINT FURTHER ALLEGED THAT IN A DISCUSSION ON
AUGUST 19, 1974 BETWEEN UNION REPRESENTATIVE GEORGE A. KELLY AND WILLIAM
F. KOCH, (CHIEF OF THE TRAINING BRANCH AT THE ARSENAL) REGARDING MR.
KOCH'S EFFORTS TO SECURE APPROVAL OF THE TRAINING FORMS HE, KELLY, WAS
TOLD THAT MR. NASH REFUSED TO SIGN THE FORMS BECAUSE HE WAS A LITIGANT
IN AN UNFAIR LABOR PRACTICE COMPLAINT THAT HAD BEEN FILED AGAINST AND
WHICH INVOLVED HIM AND MS. MCALENEY. THE SITUATION BECAME FURTHER
INVOLVED WHEN MR. KOCH REVEALED THAT HE HAD SPOKEN TO MR. SAXE AND FOUND
MR. SAXE OF THE OPINION THAT MS. MCALENEY WAS USING HER UNION POSITION
TO "BLACKMAIL" HIS ORGANIZATION OUT OF TRAINING AND HE WOULD NOT SIGN
THE FORMS BUT WOULD SEND THEM ON TO THE AMMUNITION DEVELOPMENT AND
ENGINEERING DIRECTORATE. THE FOLLOWING DAY MR. KOCH INFORMED MR. KELLY
THAT HE HAS SPOKEN TO COLONEL HEIN, DIRECTOR, ADED AND EXPLAINED THE
SITUATION AND THE TRAINING FORMS WOULD BE SIGNED IN THE DIRECTOR'S
OFFICE WHICH WAS PROMPTLY DONE.
A HEARING WAS HELD IN THE ABOVE-ENTITLED MATTER ON MARCH 26, 1975 AT
DOVER, NEW JERSEY. THE PARTIES THROUGH THEIR COUNSEL WERE AFFORDED THE
OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, TO
INTRODUCE EVIDENCE BEARING ON THE ISSUES HEREIN AND TO PRESENT ORAL
ARGUMENT AND FILE BRIEFS IN SUPPORT OF THEIR POSITIONS. THERE WERE NO
BRIEFS FILED BY EITHER PARTY FOR THE UNDERSIGNED TO CONSIDER.
BASED ON THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES
AND THEIR DEMEANOR AND UPON THE RELEVANT EVIDENCE ADDUCED AT THE
HEARING, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW AND
RECOMMENDATION:
AT THE BEGINNING OF THE HEARING COUNSEL FOR THE COMPLAINANT AND
RESPONDENT STIPULATED THE ISSUES TO BE "DID ALBERT NASH (CHIEF, FUZE
ENGINEERING BRANCH) VIOLATE THE EXECUTIVE ORDER (SECTION 19(A)(1) AND
(4)) WHEN HE DID NOT APPROVE OR DISAPPROVE THE TWO TRAINING REQUESTS OF
MRS. MCALENEY, BUT REFERRED SUCH REQUESTS TO HIS HIGHER SUPERVISORS FOR
APPROPRIATE ACTION BECAUSE HE (MR. NASH) WAS AT THAT TIME UNDER A
PREVIOUSLY FILED UNFAIR LABOR PRACTICE CHARGE (SEE CASE NO. 32-3626(CA)
INVOLVING A SIMILAR ISSUE) OF UNFAIR LABOR PRACTICES."
THE FOLLOWING FACT WAS ALSO STIPULATED "MS. MCALENEY DID RECEIVE
TIMELY APPROVAL FOR THE TWO COURSES IN QUESTION. THE APPROVAL WAS
SIGNED BY VICTOR LINDNER, DEPUTY DIRECTOR, AMMUNITION DEVELOPMENT AND
ENGINEERING DIRECTORATE, A HIGHER SUPERVISOR OF MR. NASH."
COMPLAINANTS' COUNSEL EXPRESSED THE OPINION THAT THE FOREGOING
STIPULATION WAS MADE TO PERMIT A DECISION BY THE ASSISTANT SECRETARY
UNDER 29 CFR 203.5(B) WITHOUT A HEARING. /1/ THE MATTER HAD NOT BEEN
REFERRED TO THE AREA ADMINISTRATOR BEFORE THE DATE SET FOR HEARING AND I
DID NOT REGARD THE STIPULATION AND RECORD AS BEING SUFFICIENTLY
COMPREHENSIVE WITHOUT ADDITIONAL FACTS FOR A DECISION BY THE ASSISTANT
SECRETARY OR ME. WHEREUPON, I DIRECTED THAT THE PARTIES PROCEED WITH
FURTHER PROOF IN THE MATTER.
THE MATERIAL FACTS IN THIS PROCEEDING AS PRESENTED BY THE ORAL
TESTIMONY AND INTRODUCTION OF DOCUMENTARY EVIDENCE AT THE HEARING ARE
NOT IN ESSENTIAL DISPUTE AND FOUND TO BE AS FOLLOWS:
(1) AT ALL TIMES MATERIAL HEREIN, COMPLAINANT UNION HAS BEEN THE
EXCLUSIVE BARGAINING REPRESENTATIVE OF RESPONDENTS NONPROFESSIONAL
EMPLOYEES AT PICATINNY ARSENAL.
(2) NANCY MCALENEY IS A CLERK-TYPIST GS-4 IN THE FUZE ENGINEERING
BRANCH OF THE DEPARTMENT OF THE ARMY'S PICATINNY ARSENAL, DOVER, NEW
JERSEY, WHERE SHE HAS BEEN AN EMPLOYEE AND A STUDENT FOR SEVERAL YEARS
UNDER THE UPWARD MOBILITY PROGRAM. SHE IS A MEMBER OF AFGE LOCAL UNION
NO. 225 AND IS CURRENTLY SERVING AS ITS PRESIDENT. BASICALLY, ALL OF
HER TRAINING UNDER THE UPWARD MOBILITY PROGRAM PRIOR TO THE REQUESTS
THAT ARE INVOLVED IN THIS PROCEEDING HAD BEEN APPROVED BY HER SUPERVISOR
ALBERT NASH.
(3) IN A PREVIOUSLY FILED UNFAIR LABOR PRACTICE PROCEEDING /2/
ARISING BETWEEN THE SAME PARTIES, COMPLAINANT ALLEGED DISCRIMINATORY
TREATMENT BY ALBERT NASH AGAINST NANCY MCALENEY IN VIOLATION OF SECTION
19(A)(1) AND (2) OF THE ORDER.
(4) ON AUGUST 8, 1974 MS. MCALENEY SUBMITTED TWO REQUESTS FOR
TRAINING TO TAKE TWO NON-GOVERNMENT FACILITY COURSES COMMENCING ON
SEPTEMBER 10 AND 11, 1974 AT MORRIS COUNTY COLLEGE. /3/ SHE SUBMITTED
THE FORMS TO HER SECTION CHIEF'S SECRETARY AND THEY WERE SUBSEQUENTLY
FORWARDED TO THE OFFICE OF ALBERT NASH WHO HAD APPROVED HER FORMER
REQUESTS FOR TRAINING UNDER THE UPWARD MOBILITY PROGRAM.
(5) ABOUT AUGUST 16, 1974, NANCY MCALENEY MADE INQUIRY AS TO THE
STATUS OF HER TWO REQUESTS FOR TRAINING AND LEARNED THAT THEY HAD BEEN
SENT TO MR. NASH WHO IN TURN HAD FORWARDED THEM TO FREDERICK SAXE /4/
WITHOUT HAVING APPROVED OR DISAPPROVED THEM.
(6) EITHER ON THE DAY OF RECEIPT OF THE TRAINING FORMS OR THE
FOLLOWING DAY ALBERT NASH FORWARDED THE TRAINING REQUESTS TO FREDERICK
SAXE WITH A NOTE STATING IN EFFECT THAT;
I HAVE BEEN UNDER A CHARGE OF HARASSMENT BY MS. MCALENEY AND I FEEL
THAT I SHOULD STAND
ASIDE IN THIS MATTER PERTAINING TO HER AND I WOULD APPRECIATE IT THAT
YOU WOULD ACT IN MY
STEAD. /5/
(7) THERE WERE OTHER EMPLOYEES WHO HAD TRAINING REQUESTS PENDING AT
THE SAME TIME OF NANCY MCALENEY'S THAT WERE SUBSEQUENTLY APPROVED. ONE
WAS MICHAEL DELLATERZA AND ANOTHER WAS ELAINE CASE, BUT ONLY ELAINE WAS
UNDER THE UPWARD MOBILITY PROGRAM. ALBERT NASH HAD APPROVED HER UPWARD
MOBILITY TRAINING BEING AWARE THAT SHE WAS A LOCAL UNION OFFICIAL. /6/
(8) FREDERICK SAXE, AFTER RECEIVING THE FORMS FROM MR. NASH AND
ASCERTAINING FROM THE TRAINING BRANCH THAT RELEVANCY OF THE TWO
REQUESTED COURSES OF TRAINING HAD BEEN ESTABLISHED SENT THEM TO THE
OFFICE OF THE DIRECTOR OF THE AMMUNITION DEVELOPMENT AND ENGINEERING
DIRECTORATE FOR APPROVAL; THEY WERE SIGNED BY VICTOR LINDNER, DEPUTY
DIRECTOR.
(9) MR. SAXE DID NOT SIGN THE APPLICATIONS PRIOR TO REFERRAL BECAUSE
HE ADMITTEDLY DID NOT FEEL THAT HE HAD SUFFICIENT FAMILIARITY WITH THE
UPWARD MOBILITY PROGRAM TO ACT INTELLIGENTLY ON IT; HE KNEW NOTHING OF
THE BACKGROUND AS TO WHAT THE COURSE REQUIREMENTS WERE AND FELT THAT HE
WAS BEING PUT IN AN AWKWARD POSITION TO APPROVE SOMETHING HE KNEW
NOTHING ABOUT. ANOTHER REASON FOR FORWARDING THE REQUEST WAS THAT THIS
WAS A SENSITIVE MATTER SINCE THERE WAS A GRIEVANCE OR UNFAIR LABOR
PRACTICE CHARGE PENDING AT THE TIME ON THE PART OF MS. MCALENEY AGAINST
MR. NASH AND HE, (MR. NASH) WISHED TO DISQUALIFY HIMSELF FROM HAVING ANY
PART IN THE PROCEEDING.
(10) NANCY MCALENEY WAS INFORMED BY WILLIAM F. KOCH, DIRECTOR,
TRAINING BRANCH, WHEN SHE FIRST MADE INQUIRY OF HIM AS TO THE STATUS OF
HER REQUESTS ABOUT AUGUST 16, 1974 TO GO AHEAD WITH HER PLANS AS HER
TRAINING WOULD BE APPROVED AND WHEN HE CONFIRMED THE MATTER WITH COLONEL
HEIN HE NOTIFIED GEORGE KELLY THE DAY FOLLOWING HER INQUIRY.
(11) THE TRAINING REQUESTS FOR THE TWO COURSES WERE APPROVED ABOUT
AUGUST 19 OR 20, 1974 WITHOUT CAUSING ANY UNUSUAL DELAY IN REGISTRATION,
OR ENTRY INTO TRAINING ABOUT SEPTEMBER 10, 1974 AND SHE SUBSEQUENTLY
COMPLETED THE REQUIREMENTS FOR THE TWO COURSES.
THE ISSUE COMPREHENDS AND PRESENTS THE BASIC QUESTION AS TO WHETHER
ALBERT NASH VIOLATED SECTIONS 19(A)(1) AND (4) OF THE ORDER WHEN HE DID
NOT APPROVE OR DISAPPROVE THE TWO REQUESTS FOR TRAINING UNDER THE UPWARD
MOBILITY PROGRAM OF NANCY MCALENEY BUT FORWARDED THEM TO HIGHER
SUPERVISORS FOR APPROPRIATE ACTION BECAUSE AT THAT TIME HE WAS UNDER
ACCUSATION OF HAVING PREVIOUSLY COMMITTED AN UNFAIR LABOR PRACTICE
INVOLVING A SIMILAR ISSUE.
SECTION 19 OF THE ORDER RELATING TO UNFAIR LABOR PRACTICES PROVIDES:
(A) AGENCY MANAGEMENT SHALL NOT -
(1) INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE
OF THE RIGHTS ASSURED
BY THIS ORDER;
(4) DISCIPLINE OR OTHERWISE DISCRIMINATE AGAINST AN EMPLOYEE BECAUSE
HE HAS FILED A
COMPLAINT OR GIVEN TESTIMONY UNDER THE ORDER.
UNDER SECTION 1(A) OF THE ORDER, "EACH EMPLOYEE OF THE EXECUTIVE
BRANCH OF THE FEDERAL GOVERNMENT HAS THE RIGHT, FREELY AND WITHOUT FEAR
OF PENALTY OR REPRISAL, TO FORM, JOIN, AND ASSIST A LABOR ORGANIZATION
OR TO REFRAIN FROM ANY SUCH ACTIVITY, AND EACH EMPLOYEE SHALL BE
PROTECTED IN THE EXERCISE OF THIS RIGHT. EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED IN THIS ORDER, THE RIGHT TO ASSIST A LABOR ORGANIZATION EXTENDS
TO PARTICIPATION IN THE MANAGEMENT OF THE ORGANIZATION AND ACTING FOR
THE ORGANIZATION REPRESENTATIVE INCLUDING PRESENTATION OF ITS VIEWS TO
OFFICIALS OF THE EXECUTIVE BRANCH, THE CONGRESS, OR OTHER APPROPRIATE
AUTHORITY" . . .
ADMITTEDLY IN THIS CASE, ALBERT NASH, A SECOND LINE SUPERVISOR AND
FREDERICK SAXE, THIRD LEVEL OFFICIAL ABOVE NANCY MCALENEY FORWARDED HER
TWO APPLICATION FORMS FOR TRAINING COURSES UNDER THE UPWARD MOBILITY
PROGRAM TO THE OFFICE OF THEIR DIRECTORATE HEAD WITHOUT ANY ACTION OR
RECOMMENDATION FOR APPROVAL OR DISAPPROVAL. BOTH WERE AWARE OF MS.
MCALENEY'S POSITION AS PRESIDENT OF THE LOCAL UNION AND OF THE
PREVIOUSLY FILED AND PENDING UNFAIR LABOR PRACTICE CHARGE OF HARASSMENT
THAT HAD BEEN MADE AGAINST MR. NASH THAT WAS THE SUBJECT OF A PRIOR
COMPLAINT. I HAVE REVIEWED THE ORAL TESTIMONY INTRODUCED AT THE HEARING
AND THE DOCUMENTARY EVIDENCE SUBMITTED. I AM NOT PERSUADED THAT MR.
NASH OR SAXE'S ACTIONS WERE VIOLATIVE OF SECTION 19(A)(1) AND (4) OF THE
ORDER.
IN THE FIRST PLACE IT IS NEITHER ALLEGED, CONTENDED, OR ESTABLISHED
BY THE EVIDENCE THAT NANCY MCALENEY WAS IN ANY MANNER DISCIPLINED BY
REASON OF HAVING FILED THE TWO REQUESTS FOR TRAINING IN ISSUE UNDER THE
UPWARD MOBILITY PROGRAM.
SECOND, MS. MCALENEY'S RIGHT TO HAVE IMPARTIAL AGENCY ACTIONS ON HER
TWO REQUESTS FOR TRAINING IS NOT QUESTIONED. IT WAS PRECISELY TO ASSURE
IMPARTIAL ACTION ON HER REQUESTS THAT ALBERT NASH REFERRED THEM TO A
HIGHER MANAGEMENT LEVEL WITHOUT ANY ACTION OR COMMENT AS TO THE MERIT OF
THE REQUESTS ON HIS PART. THE FACT THAT HE HAD APPROVED HER PRIOR
REQUESTS FOR TRAINING OR APPROVED SIMILAR REQUESTS FROM OTHER UNDER
CIRCUMSTANCES DIFFERENT FROM THOSE INVOLVED HEREIN IS NOT DETERMINATIVE
OF THE CURRENT ISSUE AS TO WHETHER THERE WAS A VIOLATION OF THE ORDER.
UNDER THE CIRCUMSTANCES IN THIS CASE, I FIND NO REASON TO FAULT HIS
REFERRAL OF THE MATTER TO A HIGHER MANAGEMENT LEVEL AND THERE IS NO
DISCRIMINATION AGAINST NANCY MCALENEY SHOWN TO HAVE RESULTED BY REASON
OF SUCH ACTION. IN FACT, WHEN SHE MADE INQUIRY AS TO THE STATUS OF HER
REQUESTS AND CALLED THE MATTER TO THE ATTENTION OF MR. KOCH, HE ASSURED
HER THAT HER TRAINING WAS IN ORDER AND HE EXPEDITED THE PROCESSING AND
APPROVAL OF HER APPLICATION FORMS.
THIRD, IN THE COMPLAINT IT WAS ALLEGED THAT IN A CONVERSATION BETWEEN
GEORGE KELLY AND MR. KOCH, THE LATTER REVEALED THAT HE HAD SPOKEN TO MR.
SAXE AND FOUND HIM OF THE OPINION THAT MS. MCALENEY WAS USING HER UNION
POSITION TO BLACKMAIL HIS ORGANIZATION OUT OF TRAINING AND HE WOULD NOT
SIGN THE FORMS. THE ALLEGATION IS NOT SUPPORTED BY THE EVIDENCE AND
CERTAINLY NOT IN THE CONTEXT STATED. THE ALLEGATION WAS PREDICATED ON A
HEARSAY CONVERSATION; MR. SAXE HAD NOT TALKED TO NANCY MCALENEY OR MR.
KELLY. THE TESTIMONY WAS CONFLICTING AS TO WHETHER THE TERM BLACKMAIL
HAD BEEN USED IN THE CONVERSATION OF MR. SAXE WITH MR. KOCH, BUT EVEN
ASSUMING THAT IT WAS, I FIND IT USED IN THE SENSE THAT HE (SAXE) WAS
UNDER PRESSURE FROM THE TRAINING SECTION OF THE AGENCY TO SIGN THE
APPLICATION FORMS AND NOT BECAUSE OF ANY ACTION ON THE PART OF MS.
MCALENEY. THIS IS SUPPORTED BY THE TESTIMONY OF MR. KOCH ON REDIRECT
EXAMINATION. THE EVIDENCE SHOWS THAT VERY FEW EMPLOYEES HAD APPLIED FOR
UPWARD MOBILITY TRAINING IN MR. SAXE'S DEPARTMENT AND THOSE THAT HE HAD
SIGNED HAD BEEN AFTER THEY HAD BEEN REVIEWED BY THE EMPLOYEE'S IMMEDIATE
SUPERVISOR, AND HE HAD THE BENEFIT OF HIS OPINION AND RECOMMENDATION.
IN VIEW OF THE FOREGOING, I CONCLUDE THAT THE EVIDENCE DOES NOT
ESTABLISH THAT AGENCY MANAGEMENT DISCIPLINED OR OTHERWISE DISCRIMINATED
AGAINST NANCY MCALENEY BECAUSE OF HER HAVING FILED A COMPLAINT OR GIVEN
TESTIMONY UNDER THIS ORDER IN VIOLATION OF SECTION 19(A)(4).
FURTHER, THE RECORD IS DEVOID OF ANY THREATS OR ACTS ON THE PART OF
MANAGEMENT OFFICIALS TO INTERFERE WITH, RESTRAIN OR COERCE NANCY
MCALENEY IN ANY MANNER BECAUSE OF HER UNION ACTIVITIES OR IN THE
EXERCISE OF THE RIGHTS ASSURED TO HER UNDER THE ORDER. FURTHER, SHE WAS
GRANTED ALL OF THE BENEFITS AND THE PARTICULAR TRAINING COURSES THAT SHE
HAD REQUESTED.
BASED ON THE ENTIRE RECORD, I CONCLUDE THAT THE COMPLAINANT HAS NOT
SUSTAINED ITS BURDEN OF PROVING BY A PREPONDERANCE OF THE EVIDENCE THAT
THE RESPONDENT VIOLATED SECTIONS 19(A)(1) AND (4) OF THE ORDER.
UPON THE BASIS OF THE FOREGOING FINDINGS, CONCLUSIONS AND THE ENTIRE
RECORD, I RECOMMEND THAT THE ASSISTANT SECRETARY DISMISS THE COMPLAINT
AGAINST THE RESPONDENT IN ITS ENTIRETY.
DATED: APRIL 29, 1975
WASHINGTON, D.C.
/1/ 29 CFR 203.5(B) PROVIDES THAT: "UPON THE FILING OF A COMPLAINT,
PARTIES MAY SUBMIT TO THE AREA ADMINISTRATOR A STIPULATION OF FACTS AND
THEIR REQUEST FOR A DECISION BY THE ASSISTANT SECRETARY WITHOUT A
HEARING. THE STIPULATION SHALL BE FORWARDED TO THE ASSISTANT REGIONAL
DIRECTOR FOR LABOR-MANAGEMENT SERVICES BY THE AREA ADMINISTRATOR."
/2/ CASE NO. 32-3626(CA). THE CASE IS CURRENTLY BEFORE THE ASSISTANT
SECRETARY FOR LABOR-MANAGEMENT RELATIONS ON APPEAL FOR FINAL
DISPOSITION.
/3/ SEE ASSISTANT SECRETARY'S EXHIBIT 1(D)
/4/ FREDERICK SAXE, CHIEF OF FUZE DEVELOPMENT AND ENGINEERING
DIVISION OF THE AMMUNITION DEVELOPMENT ENGINEERING DIRECTORATE AND AT
THE NEXT HIGHER MANAGEMENT LEVEL TO ALBERT NASH.
/5/ SEE TRANSCRIPT P. 48.
6/ SEE TRANSCRIPT PP. 20 AND 89.
5 A/SLMR 531; P. 440; CASE NO. 60-3747(RO); JUNE 30, 1975.
DEPARTMENT OF THE AIR FORCE,
321ST COMBAT SUPPORT GROUP,
GRAND FORKS AIR FORCE BASE,
NORTH DAKOTA
A/SLMR NO. 531
THE PETITIONER, LOCAL F-181, INTERNATIONAL ASSOCIATION OF
FIREFIGHTERS, AFL-CIO (IAFF), SOUGHT AN ELECTION IN A UNIT OF ALL
NONSUPERVISORY, NONPROFESSIONAL GENERAL SCHEDULE FIREFIGHTERS, CREW
CHIEFS AND FIRE INSPECTORS EMPLOYED AT AND BY GRAND FORKS AIR FORCE BASE
IN NORTH DAKOTA.
THE RECORD EVIDENCE ESTABLISHED THAT, AT THE TIME THE IAFF FILED ITS
PETITION IN THE INSTANT CASE, THE ACTIVITY AND THE INTERVENOR, LOCAL
1347, NATIONAL FEDERATION OF FEDERAL EMPLOYEES (NFFE), WERE PARTIES TO A
NEGOTIATED AGREEMENT ENCOMPASSING "ALL ELIGIBLE AIR FORCE CIVILIAN
EMPLOYEES PAID FROM APPROPRIATED FUNDS EMPLOYED ON GRAND FORKS AIR FORCE
BASE, NORTH DAKOTA, INCLUDING ON-BASE TENANT ORGANIZATIONS . . . " THE
PARTIES STIPULATED THAT FOUR NONSUPERVISORY, CIVILIAN FIREFIGHTER
POSITIONS HAD BEEN OCCUPIED PRIOR TO THE NFFE'S FIRST NEGOTIATED
AGREEMENT WITH THE ACTIVITY AND THIS NUMBER REMAINED RELATIVELY CONSTANT
FROM OCTOBER 1967 UNTIL OCTOBER 1973; THAT, BY THE TIME OF THE HEARING
IN THIS MATTER, THERE WERE 31 POSITIONS ELIGIBLE FOR INCLUSION IN THE
IAFF'S PROPOSED UNIT; AND THAT CIVILIAN FIREFIGHTERS ARE SERVICED BY
THE SAME CENTRAL CIVILIAN PERSONNEL OFFICE AS ARE ALL CIVILIAN GENERAL
SCHEDULE EMPLOYEES AT THE BASE. NO RECORD EVIDENCE WAS PRESENTED THAT
THE ACTIVITY OR THE NFFE SOUGHT OR INTENDED, AT ANY TIME DURING THEIR
BARGAINING HISTORY, TO EXCLUDE THE CIVILIAN FIREFIGHTER CLASSIFICATIONS
FROM THE BASE-WIDE UNIT.
THE ASSISTANT SECRETARY FOUND THAT THE UNIT OF FIREFIGHTERS SOUGHT BY
THE IAFF WAS PART OF THE EXCLUSIVELY RECOGNIZED BASE-WIDE UNIT
REPRESENTED BY THE NFFE AND WAS COVERED BY A CURRENT NEGOTIATED
AGREEMENT. THEREFORE, THE INSTANT PETITION IN THE SUBJECT CASE WAS
FOUND TO HAVE BEEN FILED UNTIMELY. ACCORDINGLY, THE ASSISTANT SECRETARY
ORDERED THAT THE PETITION BE DISMISSED.
DEPARTMENT OF THE AIR FORCE,
321ST COMBAT SUPPORT GROUP,
GRAND FORKS AIR FORCE BASE,
NORTH DAKOTA /1/
AND
LOCAL F-181, INTERNATIONAL ASSOCIATION
OF FIREFIGHTERS (AFL-CIO) /2/
AND
LOCAL 1347, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER MARVIN R. WESLEY.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILED BY ALL OF
THE PARTIES, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE IAFF SEEKS AN ELECTION IN THE FOLLOWING UNIT:
ALL NON-SUPERVISORY, GS FIRE FIGHTERS, CREW CHIEFS, AND FIRE
INSPECTORS EMPLOYED AT AND BY
GRAND FORKS AIR FORCE BASE, NORTH DAKOTA, EXCLUDING ALL SUPERVISORS,
PROFESSIONALS, GUARDS,
MANAGEMENT OFFICIALS, AND EMPLOYEES ENGAGED IN FEDERAL PERSONNEL
WORK, EXCEPT IN A PURELY
CLERICAL CAPACITY WITHIN THE MEANING OF THE ORDER.
THE INTERVENOR, LOCAL 1347, NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
HEREIN CALLED NFFE, WHICH HAD BEEN GRANTED EXCLUSIVE RECOGNITION IN
1968, AND THE ACTIVITY CONTEND THAT AT THE TIME THE IAFF FILED THE
PETITION IN THE INSTANT CASE, THE EMPLOYEES SOUGHT WERE COVERED BY AN
EXISTING NEGOTIATED AGREEMENT WHICH CONSTITUTED A BAR TO THE PETITION.
/3/ THE IAFF ASSERTS, IN SUBSTANCE, THAT THE FIREFIGHTER CLASSIFICATIONS
IS NOT PART OF THE EXISTING UNIT BUT IS, IN EFFECT, A NEW EMPLOYEE
CLASSIFICATION WHICH IS UNREPRESENTED.
THE EMPLOYEES IN THE CLAIMED UNIT ARE IN THE FIRE PROTECTION BRANCH
OF THE 321ST CIVIL ENGINEERING SQUADRON. THE SQUADRON IS ONE OF THE
SUBORDINATE SERVICE ELEMENTS COMPOSING THE 321ST COMBAT SUPPORT GROUP
WHICH IS LOCATED AT GRAND FORKS AIR FORCE BASE. /4/
THE FIRE PROTECTION BRANCH IS DIVIDED INTO THREE COMPONENTS: AN
ADMINISTRATIVE SECTION; THE TECHNICAL SERVICES SECTION; AND THE FIRE
OPERATIONS SECTION. AT THE TIME OF THE HEARING IN THIS MATTER, THE
COMPLEMENT OF THE BRANCH CONSISTED OF 71 TOTAL AUTHORIZED PETITIONS, OF
WHICH 31 POSITIONS WERE STIPULATED BY THE PARTIES TO BE ELIGIBLE FOR
INCLUSION IN THE IAFF'S PROPOSED UNIT.
THE PARTIES STIPULATED TO THE FOLLOWING FACTS: (1) THE FIRE
PROTECTION BRANCH BEGAN TO CONVERT DURING THE FIRST QUARTER OF FISCAL
YEAR 1974 (JULY THROUGH SEPTEMBER 1973) FROM AN ESSENTIALLY MILITARY TO
CIVILIAN OPERATION; AND (2) FOUR NONSUPERVISORY, CIVILIAN FIREFIGHTER
POSITIONS HAD BEEN OCCUPIED PRIOR TO THE NFFE'S FIRST NEGOTIATED
AGREEMENT WITH THE ACTIVITY AND THIS NUMBER REMAINED RELATIVELY CONSTANT
FROM OCTOBER 1967 UNTIL OCTOBER 1973; (3) CIVILIAN FIREFIGHTERS ARE
SERVICED BY THE SAME CENTRAL CIVILIAN PERSONNEL OFFICE AS ARE ALL OTHER
CIVIL SERVICE EMPLOYEES AT THE BASE; (4) APPRAISALS, AWARDS,
CLASSIFICATION APPEALS, EQUAL EMPLOYMENT OPPORTUNITY MATTERS,
GRIEVANCES, INJURY COMPENSATION, SUGGESTION PROCESSING, MERIT PROMOTION,
AND PLACEMENT AFFECT CIVILIAN FIREFIGHTERS IN THE SAME MANNER AS THEY
AFFECT ALL OTHER CIVILIAN GENERAL SCHEDULE EMPLOYEES AT THE BASE; AND
(5) DURING THEIR INITIAL ORIENTATION, NEW CIVILIAN FIREFIGHTERS EMPLOYED
BY THE ACTIVITY ARE ADVISED OF THEIR RIGHT TO JOIN OR TO REFRAIN FROM
JOINING THE NFFE. THERE IS NO RECORD EVIDENCE THAT THE ACTIVITY OR THE
NFFE SOUGHT OR INTENDED, AT ANY TIME DURING THEIR BARGAINING HISTORY, TO
EXCLUDE THE CIVILIAN FIREFIGHTER CLASSIFICATIONS FROM THE BASE-WIDE
UNIT.
BASED ON THE FOREGOING CIRCUMSTANCES, I FIND THAT THE EMPLOYEES
SOUGHT BY THE IAFF ARE PART OF THE EXISTING UNIT AT THE ACTIVITY COVERED
BY A NEGOTIATED AGREEMENT AND THAT THE INSTANT PETITION THEREFORE, WAS
FILED UNTIMELY /5/ UNDER SECTION 202.3(C) OF THE ASSISTANT SECRETARY'S
REGULATIONS. /6/ ACCORDINGLY, I FIND THAT THE DISMISSAL OF THE INSTANT
PETITION IS WARRANTED.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 60-3747(RO) BE,
AND IT HEREBY IS DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 30, 1975
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE NAME OF THE PETITIONER, LOCAL F-181, INTERNATIONAL
ASSOCIATION OF FIREFIGHTERS (AFL-CIO), HEREIN CALLED IAFF, APPEARS AS
AMENDED AT THE HEARING.
/3/ THE IAFF FILED ITS PETITION ON AUGUST 12, 1974. THE PARTIES
STIPULATED THAT THEIR CURRENT NEGOTIATED AGREEMENT IS IDENTICAL TO THE
NEGOTIATED AGREEMENT CITED IN UNITED STATES AIR FORCE, 321ST COMBAT
SUPPORT GROUP, GRAND FORKS AIR FORCE BASE, NORTH DAKOTA, A/SLMR NO. 319,
FLRC NO. 73A-58. IN THAT CASE, THE EVIDENCE ESTABLISHED THAT THE
NEGOTIATED AGREEMENT BETWEEN THE ACTIVITY AND THE NFFE BECAME EFFECTIVE
ON OCTOBER 26, 1972, HAD A DURATION OF THREE YEARS AND WAS RENEWABLE ON
A YEAR TO YEAR BASIS THEREAFTER. IT WAS NOTED, HOWEVER, THAT THE
PARTIES FURTHER STIPULATED THAT ONE OF THE ACTIVITY'S EXHIBITS "IS A
PRESENT" NEGOTIATED AGREEMENT BETWEEN THE ACTIVITY AND THE NFFE. THIS
AGREEMENT WAS APPROVED ON DECEMBER 17, 1973, AND HAS THE SAME DURATION
LANGUAGE AS THE OCTOBER 26, 1972, AGREEMENT. MOREOVER, BOTH AGREEMENTS
HAVE THE SAME UNIT DESCRIPTION: " . . . ALL ELIGIBLE AIR FORCE CIVILIAN
EMPLOYEES PAID FROM APPROPRIATED FUNDS EMPLOYED ON GRAND FORKS AIR FORCE
BASE, NORTH DAKOTA, INCLUDING ON-BASE TENANT ORGANIZATIONS . . . "
/4/ WITH RESPECT TO THE ACTIVITY'S MISSION AND COMMAND STRUCTURE AND
THE JOB FUNCTIONS AND WORKING CONDITIONS OF THE CLAIMED EMPLOYEES, THE
PARTIES STIPULATED THAT THERE ARE NO MATERIAL DIFFERENCES BETWEEN THE
FACTS IN THE PRESENT CASE AND THOSE WHICH ARE PRESENT IN UNITED STATES
DEPARTMENT OF THE AIR FORCE, DAVIS-MONTHAN AIR FORCE BASE, ARIZONA,
A/SLMR NO. 462, FLRC NO. 74A-92.
/5/ SEE UNITED STATES DEPARTMENT OF THE AIR FORCE, DAVIS-MONTHAN AIR
FORCE BASE, ARIZONA, CITED ABOVE. IT WAS NOTED THAT THE PARTIES
STIPULATED THAT "THERE IS NO DISPUTE REGARDING THE QUALITY AND
SUFFICIENCY OF NFFE REPRESENTATION OF EMPLOYEES WITHIN ITS BARGAINING
UNIT, INCLUDING FIRE DEPARTMENT EMPLOYEES."
/6/ SECTION 202.3(C) PROVIDES, IN PERTINENT PART, THAT "WHEN AN
AGREEMENT COVERING A CLAIMED UNIT HAS BEEN SIGNED AND DATED BY AN
ACTIVITY AND THE INCUMBENT EXCLUSIVE REPRESENTATIVE, A PETITION FOR
EXCLUSIVE RECOGNITION OR OTHER ELECTION PETITION WILL BE CONSIDERED
TIMELY FILED AS FOLLOWS: (1) NOT MORE THAN NINETY (90) DAYS AND NOT
LESS THAN SIXTY (60) DAYS PRIOR TO THE TERMINAL DATE OF AN AGREEMENT
HAVING A TERM OF THREE (3) YEARS OR LESS FROM THE DATE IT WAS SIGNED AND
DATED . . . "
5 A/SLMR 530; P. 437; CASE NO. 71-3013(RO); JUNE 30, 1975.
DEPARTMENT OF THE AIR FORCE,
336TH COMBAT SUPPORT GROUP,
MOUNTAIN HOME AIR FORCE BASE,
MOUNTAIN HOME, IDAHO
A/SLMR NO. 530
THE PETITIONER, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL
UNION F-179 (IAFF), SOUGHT AN ELECTION IN A UNIT OF ALL NONSUPERVISORY,
NONPROFESSIONAL GENERAL SCHEDULE FIREFIGHTERS, CREW CHIEFS, AND FIRE
INSPECTORS EMPLOYED AT AND BY MOUNTAIN HOME AIR FORCE BASE IN IDAHO.
SINCE NOVEMBER 1966, THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL UNION 1200 (NFFE), HAS REPRESENTED A UNIT OF ALL ELIGIBLE UNITED
STATES AIR FORCE APPROPRIATED FUND EMPLOYEES SERVICED BY THE CENTRAL
CIVILIAN PERSONNEL OFFICE OF MOUNTAIN HOME AIR FORCE BASE. THE EVIDENCE
ESTABLISHED THAT AT LEAST TWO NONSUPERVISORY, CIVILIAN CREW CHIEF
POSITIONS HAD BEEN OCCUPIED ALMOST CONTINUOUSLY SINCE THE GRANTING OF
EXCLUSIVE RECOGNITION TO THE NFFE IN 1966. BY THE TIME OF THE HEARING
IN THIS MATTER, THERE WERE 37 CIVILIAN AUTHORIZED POSITIONS WITH 36
INCUMBENTS, INCLUDING 7 CIVILIAN SUPERVISORS. FURTHER, THE EVIDENCE
DISCLOSED THAT THE CIVILIAN FIREFIGHTERS ARE SERVICED BY THE SAME
CENTRAL CIVILIAN PERSONNEL OFFICE AS ARE THE OTHER CIVILIAN EMPLOYEES IN
THE BARGAINING UNIT. AT THE TIME THE IAFF FILED ITS PETITION IN THE
INSTANT CASE, THE ACTIVITY AND THE NFFE WERE PARTIES TO A NEGOTIATED
AGREEMENT. FINALLY, NO RECORD EVIDENCE WAS PRESENTED THAT THE PARTIES
SOUGHT OR INTENDED, AT ANY TIME DURING THEIR BARGAINING HISTORY, TO
EXCLUDE THE CIVILIAN FIREFIGHTERS CLASSIFICATIONS FROM THE BASE-WIDE
UNIT.
THE ASSISTANT SECRETARY FOUND THAT THE UNIT OF FIREFIGHTERS SOUGHT BY
THE IAFF WAS PART OF THE EXCLUSIVELY RECOGNIZED, BASE-WIDE UNIT
REPRESENTED BY THE NFFE AND WAS COVERED BY A CURRENT NEGOTIATED
AGREEMENT. THEREFORE, THE INSTANT PETITION IN THE SUBJECT CASE WAS
FOUND TO HAVE BEEN FILED UNTIMELY. ACCORDINGLY, THE ASSISTANT SECRETARY
ORDERED THAT THE PETITION BE DISMISSED.
DEPARTMENT OF THE AIR FORCE,
336TH COMBAT SUPPORT GROUP,
MOUNTAIN HOME AIR FORCE BASE,
MOUNTAIN HOME, IDAHO
AND
INTERNATIONAL ASSOCIATION OF
FIREFIGHTERS, LOCAL UNION F-179
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER DANIEL P. KRAUS.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILED BY THE
PARTIES, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL
UNION F-179, HEREIN CALLED IAFF, SEEKS AN ELECTION IN THE FOLLOWING
UNIT:
ALL NON-SUPERVISORY, GS FIRE FIGHTERS, CREW CHIEFS, AND FIRE
INSPECTORS EMPLOYED AT AND BY
MOUNTAIN HOME AIR FORCE BASE, IDAHO, EXCLUDING ALL SUPERVISORS,
PROFESSIONALS, GUARDS,
MANAGEMENT OFFICIALS, AND EMPLOYEES ENGAGED IN FEDERAL PERSONNEL
WORK, EXCEPT IN A PURELY
CLERICAL CAPACITY WITHIN THE MEANING OF THE ORDER. /1/
THE ACTIVITY CONTENDS THAT AT ALL TIME THE IAFF FILED THE PETITION IN
THE INSTANT CASE, THE EMPLOYEES SOUGHT WERE COVERED BY AN EXISTING
NEGOTIATED AGREEMENT WITH THE NFFE WHICH CONSTITUTED A BAR TO THE
INSTANT PETITION. /2/ THE IAFF ASSERTS, IN SUBSTANCE, THAT THE
FIREFIGHTER CLASSIFICATION IS NOT PART OF THE EXISTING UNIT BUT IS, IN
EFFECT A NEW EMPLOYEE CLASSIFICATION WHICH IS UNREPRESENTED.
THE EMPLOYEES IN THE CLAIMED UNIT ARE IN THE FIRE PROTECTION/CRASH
RESCUE BRANCH -- ONE OF SEVEN BRANCHES OF THE 366TH CIVIL ENGINEERING
SQUADRON. THE SQUADRON PLANS, DIRECTS, SUPERVISES, AND COORDINATES ALL
CIVIL ENGINEERING ACTIVITIES OF THE 366TH COMBAT SUPPORT GROUP WHICH, IN
TURN, IS RESPONSIBLE FOR PROVIDING THE OVERALL COMMAND, DIRECTION,
PLANS, AND STAFF SUPERVISION IN THE FULFILLMENT OF THE MISSION OF THE
366TH TACTICAL FIGHTER WING. THE MISSION OF THE WING IS TO EXECUTE
DIRECTED TACTICAL FIGHTER MISSIONS AND TO PROVIDE REPLACEMENT TRAINING
OF COMBAT AIRCREWS AND TACTICAL MAINTENANCE PERSONNEL. MOUNTAIN HOME
AIR FORCE BASE IS THE HOME BASE OF THE FIGHTER WING AND IS PART OF THE
TACTICAL AIR COMMAND.
THE FIRE PROTECTION/CRASH RESCUE BRANCH IS DIVIDED INTO THREE
COMPONENTS: AN ADMINISTRATIVE SECTION, COMPOSED OF THE FIRE CHIEF,
DEPUTY FIRE CHIEF, FOUR SUPERVISORY FIREFIGHTERS, AND A CLERK-TYPIST;
THE TECHNICAL SERVICES SECTION, WHOSE FUNCTION IS PRIMARILY THAT OF FIRE
PREVENTION AND ORIENTATION; AND THE OPERATIONS SECTION, WHICH INCLUDES
ALL OF THE FIREFIGHTERS AND THEIR FIREFIGHTING EQUIPMENT. AT THE TIME
OF THE HEARING IN THIS MATTER, THE COMPLEMENT OF THE BRANCH INCLUDED 53
AUTHORIZED MILITARY POSITIONS WITH 45 MILITARY INCUMBENTS AND 37
CIVILIAN AUTHORIZED POSITIONS WITH 36 INCUMBENTS, INCLUDING 7 CIVILIAN
SUPERVISORS.
THE RECORD INDICATES THAT THE FIRE PROTECTION/CRASH RESCUE BRANCH
BEGAN TO CONVERT DURING THE FIRST QUARTER OF FISCAL YEAR 1974 (JULY
THROUGH SEPTEMBER 1973) FROM AN ESSENTIALLY MILITARY TO A CIVILIAN
OPERATION. HOWEVER, THE EVIDENCE ESTABLISHES THAT AT LEAST TWO
NON-SUPERVISORY, CIVILIAN CREW CHIEF POSITIONS HAD BEEN OCCUPIED ALMOST
CONTINUOUSLY PRIOR TO THAT TIME SINCE THE GRANTING OF EXCLUSIVE
RECOGNITION TO THE NFFE IN 1966. /3/ FURTHER, THE RECORD SHOWS THAT THE
FIREFIGHTERS ARE SERVICED BY THE SAME CENTRAL CIVILIAN PERSONNEL OFFICE
AS ARE THE OTHER EMPLOYEES IN THE BARGAINING UNIT AND THAT FIREFIGHTERS,
LIKE OTHER ACTIVITY EMPLOYEES, ARE ADVISED DURING THEIR "DESK"
ORIENTATIONS AND PERIODIC GROUP ORIENTATIONS OF THE EXCLUSIVE
REPRESENTATIVES STATUS OF THE NFFE. THERE IS NO RECORD EVIDENCE THAT
THE ACTIVITY OR THE NFFE SOUGHT OR INTENDED, AT ANY TIME DURING THEIR
BARGAINING HISTORY, TO EXCLUDE THE CIVILIAN FIREFIGHTER CLASSIFICATIONS
FROM THE BASE-WIDE UNIT.
BASED ON THE FOREGOING CIRCUMSTANCES, I FIND THAT THE EMPLOYEES
SOUGHT BY THE IAFF ARE PART OF THE EXISTING UNIT AT THE ACTIVITY COVERED
BY A NEGOTIATED AGREEMENT AND THAT THE INSTANT PETITION, THEREFORE, WAS
FILED UNTIMELY /4/ UNDER SECTION 202.3(C) OF THE ASSISTANT SECRETARY'S
REGULATIONS. /5/ THUS, IN MY VIEW, THE JANUARY 22, 1973, NEGOTIATED
AGREEMENT, WHICH COVERED ALL ELIGIBLE UNITED STATES AIR FORCE
APPROPRIATED FUND EMPLOYEES SERVICED BY THE CENTRAL CIVILIAN PERSONNEL
OFFICE, MOUNTAIN HOME AIR FORCE BASE, IDAHO, ENCOMPASSED THE EMPLOYEES
IN THE CLAIMED UNIT AND, THEREFORE, CONSTITUTED A BAR TO THE INSTANT
PETITION. ACCORDINGLY, I FIND THAT THE DISMISSAL OF THE INSTANT
PETITION IS WARRANTED.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 71-3013(RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 30, 1975
/1/ THE INCUMBENT EXCLUSIVE REPRESENTATIVE, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1200, HEREIN CALLED NFFE, DID NOT INTERVENE IN
THE INSTANT CASE. THE RECORD REVEALS THAT THE NFFE HAS BEEN THE
EXCLUSIVE REPRESENTATIVE SINCE NOVEMBER 1966 OF "ALL ELIGIBLE UNITED
STATES AIR FORCE APPROPRIATED FUND EMPLOYEES SERVICED BY THE CENTRAL
CIVILIAN PERSONNEL OFFICE, MOUNTAIN HOME AIR FORCE BASE, IDAHO,
EXCLUDING MANAGEMENT OFFICIALS, SUPERVISORS, AND EMPLOYEES ENGAGED IN
CIVILIAN PERSONNEL WORK, OTHER THAN THOSE IN A PURELY CLERICAL CAPACITY,
AND PROFESSIONAL EMPLOYEES."
/2/ THE IAFF FILED ITS PETITION IN THE INSTANT CASE ON AUGUST 12,
1974. THE ACTIVITY AND THE NFFE WERE PARTIES TO A NEGOTIATED AGREEMENT
WHICH HAD BEEN APPROVED ON JANUARY 22, 1973. THE TERM OF THE AGREEMENT
WAS FOR ONE YEAR WITH AUTOMATIC RENEWAL FOR AN ADDITIONAL YEAR.
/3/ BETWEEN 1966 AND SEPTEMBER 1973, NEITHER NONSUPERVISORY, CIVILIAN
CREW CHIEF POSITION WAS VACANT MORE THAN TWICE AND NEVER SIMULTANEOUSLY.
DURING THIS PERIOD, ONE OF THE POSITIONS WAS VACANT FOR TWO PERIODS OF
APPROXIMATELY 4 1/2 AND 3 MONTHS; THE OTHER POSITION WAS VACANT FOR TWO
PERIODS OF APPROXIMATELY 1 AND 6 MONTHS.
/4/ SEE UNITED STATES DEPARTMENT OF THE AIR FORCE, DAVIS-MONTHAN AIR
FORCE BASE, ARIZONA, A/SLMR NO. 462; FLRC NO. 74A-92. I FIND ALSO THAT
THE EVIDENCE DID NOT ESTABLISH THAT THE EMPLOYEES IN THE CLAIMED UNIT
HAD BEEN DENIED EFFECTIVE AND FAIR REPRESENTATION BY THE NFFE.
/5/ SECTION 202.3(C) PROVIDES, IN PERTINENT PART, THAT "WHEN AN
AGREEMENT COVERING A CLAIMED UNIT HAS BEEN SIGNED AND DATED BY AN
ACTIVITY AND THE INCUMBENT EXCLUSIVE REPRESENTATIVE, A PETITION FOR
EXCLUSIVE RECOGNITION OR OTHER ELECTION PETITION WILL BE CONSIDERED
TIMELY WHEN FILED AS FOLLOWS: (1) NOT MORE THAN NINETY (90) DAYS AND
NOT LESS THAN SIXTY (60) DAYS PRIOR TO THE TERMINAL DATE OF AN AGREEMENT
HAVING A TERM OF THREE (3) YEARS OR LESS FROM THE DATE IT WAS SIGNED AND
DATED . . . "
5 A/SLMR 529; P. 429; CASE NOS. 72-4718, 72-4759; JUNE 30, 1975.
DEPARTMENT OF THE NAVY
AND
U.S. CIVIL SERVICE COMMISSION
A/SLMR NO. 529.
THIS CASE AROSE AS THE RESULT OF COMPLAINTS FILED BY FEDERAL
EMPLOYEES METAL TRADES COUNCIL, LONG BEACH, CALIFORNIA (COMPLAINANT)
AGAINST DEPARTMENT OF THE NAVY (NAVY) AND U.S. CIVIL SERVICE COMMISSION
(CSC) ALLEGING VIOLATION OF SECTION 19(A)(1), (2) AND (6) OF THE ORDER
BASED UPON THE ASSERTED CONDUCT OF A COMPLAINTS EXAMINER APPOINTED BY
THE CSC TO HEAR AN EQUAL EMPLOYMENT OPPORTUNITY (EEO) COMPLAINT FILED BY
AN EMPLOYEE OF THE LONG BEACH NAVAL SHIPYARD (SHIPYARD) IN REFUSING TO
ALLOW A REPRESENTATIVE OF THE COMPLAINANT TO ATTEND THE HEARING AS AN
OBSERVER, IN ALLEGED CONTRAVENTION OF THE COMPLAINANT'S RIGHTS UNDER
SECTION 10(E) OF THE ORDER.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT, WITH RESPECT TO THE NAVY, NO
BARGAINING OBLIGATION WAS OWED TO THE COMPLAINANT INASMUCH AS THE
COMPLAINANT WAS RECOGNIZED AS THE BARGAINING AGENT BY THE SHIPYARD FOR
CERTAIN OF ITS EMPLOYEES. MOREOVER, THERE WAS NO INDEPENDENT 19(A)(1)
VIOLATION BY THE NAVY AS IT HAD TAKEN NO PART IN THE EEO HEARING NOT MET
WITH THE EEO COMPLAINANT OR ANY OTHER SHIPYARD EMPLOYEE CONCERNING THE
EEO MATTER. FURTHER THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE CSC
OWED NO BARGAINING OBLIGATION TO THE COMPLAINANT AND THAT THE CSC DID
NOT ATTEMPT TO DEAL WITH THE COMPLAINANT OR WITH INDIVIDUAL EMPLOYEES AS
AN ALTER EGO OF THE SHIPYARD. IN THIS REGARD, HE VIEWED THE INDEPENDENT
STATUS OF THE COMPLAINTS EXAMINER UNDER THE PROVISIONS OF PART 713 OF
THE FEDERAL PERSONNEL MANUAL, AS DETRACTING FROM ANY ALLEGED NEXUS
BETWEEN THE SHIPYARD AND THE CSC. ON THE BASIS OF THESE FINDINGS, THE
ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE COMPLAINTS BE DISMISSED.
IN ADOPTING THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE
ADMINISTRATIVE LAW JUDGE, THE ASSISTANT SECRETARY NOTED THAT, UNDER THE
PARTICULAR CIRCUMSTANCES OF THIS CASE, THE CSC DID NOT MEET THE
DEFINITION OF "AGENCY MANAGEMENT" SET FORTH IN SECTION 2(F) OF THE
ORDER. IN THIS REGARD, THE ASSISTANT SECRETARY DETERMINED THAT THE CSC
WAS ACTING HEREIN UNDER AUTHORITY GRANTED BY VARIOUS STATUTES AND
EXECUTIVE ORDERS RELATING TO EEO MATTERS AND PURSUANT TO PART 713 OF THE
FEDERAL PERSONNEL MANUAL, WHICH WAS PROMULGATED TO IMPLEMENT AND
EFFECTUATE SUCH STATUTES AND EXECUTIVE ORDERS, AND THAT NEITHER THE CSC
NOR ITS COMPLAINTS EXAMINER WAS SUBJECT TO THE JURSIDICTION OR AUTHORITY
OF THE NAVY OR THE SHIPYARD. ACCORDINGLY, THE ASSISTANT SECRETARY
ORDERED THAT THE COMPLAINTS HEREIN BE DISMISSED.
DEPARTMENT OF THE NAVY
AND
FEDERAL EMPLOYEES METAL TRADES COUNCIL
LONG BEACH, CALIFORNIA
U.S. CIVIL SERVICE COMMISSION
AND
AND
FEDERAL EMPLOYEES METAL TRADES COUNCIL
LONG BEACH, CALIFORNIA
ON JANUARY 30, 1975, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENTS HAD NOT ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINTS, AND RECOMMENDING THAT THE
COMPLAINTS BE DISMISSED IN THEIR ENTIRETY. THEREAFTER, THE COMPLAINANT
FILED EXCEPTIONS AND A SUPPORTING BRIEF WITH RESPECT TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
THE ASSISTANT SECRETARY 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 CASES, INCLUDING THE
COMPLAINANT'S EXCEPTIONS AND SUPPORTING BRIEF, I HEREBY ADOPT THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
/1/
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, I FIND THAT, UNDER
THE PARTICULAR CIRCUMSTANCES OF THIS CASE, THE RESPONDENT CIVIL SERVICE
COMMISSION (CSC) OWED NO OBLIGATION TO MEET AND CONFER WITH THE
COMPLAINANT UNDER SECTION 11(A) OF THE ORDER AND THAT ITS CONDUCT HEREIN
WAS NOT IN DEROGATION OF THE EXCLUSIVE BARGAINING RELATIONSHIP BETWEEN
THE LONG BEACH NAVAL SHIPYARD AND THE COMPLAINANT. IN THIS REGARD, IT
WAS NOTED PARTICULARLY THAT THE CSC WAS ACTING HEREIN UNDER AUTHORITY
GRANTED BY VARIOUS STATUTES AND EXECUTIVE ORDERS RELATING TO EEO MATTERS
/2/ AND PURSUANT TO PART 713 OF THE FEDERAL PERSONNEL MANUAL, WHICH WAS
PROMULGATED BY THE CSC TO IMPLEMENT AND EFFECTUATE SUCH STATUTES AND
EXECUTIVE ORDERS, AND THAT NEITHER THE CSC NOR ITS COMPLAINTS EXAMINER
WAS SUBJECT TO THE JURISDICTION OR AUTHORITY OF EITHER THE DEPARTMENT OF
THE NAVY OR THE LONG BEACH NAVAL SHIPYARD. ACCORDINGLY, I FIND THAT,
UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE, THE CSC DID NOT MEET
THE DEFINITION OF "AGENCY MANAGEMENT " SET FORTH IN SECTION 2(F) OF THE
ORDER. /3/ COMPARE U.S. ARMY CIVILIAN APPELLATE REVIEW AGENCY,
DEPARTMENT OF THE ARMY, SACRAMENTO, CALIFORNIA, A/SLMR NO. 488.
IT IS HEREBY ORDERED THAT THE COMPLAINTS IN CASE NOS. 72-4718 AND
72-4759 BE, AND THEY HEREBY ARE, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 30, 1975
/1/ IN REACHING THE DISPOSITION HEREIN, I FIND IT UNNECESSARY TO PASS
UPON THE CONCLUSION REACHED BY THE ADMINISTRATIVE LAW JUDGE THAT THE
EQUAL EMPLOYMENT OPPORTUNITY (EEO) HEARING HELD ON THIS MATTER WAS NOT A
"FORMAL DISCUSSION" WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER.
/2/ SEE E.G. 86 STAT 111; 5 USC SECTIONS 1301, 3301, 3302,
7151-7154; 7301; EXECUTIVE ORDER 10577, 3 CFR 1954-1958 COMP. P. 218;
EXECUTIVE ORDER 11222, 3 CFR 1964-1965 COMP, P. 306; EXECUTIVE ORDER
11478, 3 CFR 1966-1970 COMP. P. 803.
/3/ SECTION 2(F) PROVIDES: "'AGENCY MANAGEMENT' MEANS THE AGENCY
HEAD AND ALL MANAGEMENT OFFICIALS, SUPERVISORS, AND OTHER
REPRESENTATIVES OF MANAGEMENT HAVING AUTHORITY TO ACT FOR THE AGENCY ON
ANY MATTERS RELATING TO THE IMPLEMENTATION OF THE AGENCY
LABOR-MANAGEMENT RELATIONS PROGRAM ESTABLISHED UNDER THIS ORDER."
IN THE MATTER OF
DEPARTMENT OF THE NAVY
AND
FEDERAL EMPLOYEES METAL TRADES COUNCIL
LONG BEACH, CALIFORNIA
AND
U.S. CIVIL SERVICE COMMISSION
AND
FEDERAL EMPLOYEES METAL TRADES COUNCIL
STUART M. FOSS, ESQ.
LABOR DISPUTES AND APPEAL SECTION
OFFICE OF CIVILIAN MANPOWER MANAGEMENT
DEPARTMENT OF NAVY
1735 N. LYNN STREET
ARLINGTON, VIRGINIA 22209
LOUIS ARONIN, ESQ.
ASSOCIATE DIRECTOR
OFFICE OF LABOR MANAGEMENT RELATIONS
U.S. CIVIL SERVICE COMMISSION
1900 E STREET, N.W.
WASHINGTON, D.C. 20415
THOMAS MARTIN, ESQ.
19626 1/2 SOUTH NORMANDIE
TORRENCE, CALIFORNIA 90502
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
THIS PROCEEDING /1/ ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREIN CALLED THE ORDER) PURSUANT TO A NOTICE OF HEARING ISSUED BY THE
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES ADMINISTRATION
SAN FRANCISCO REGION ON SEPTEMBER 13, 1974. A COMPLAINT WAS FILED BY
FEDERAL EMPLOYEES METAL TRADES COUNCIL (HEREIN CALLED COMPLAINANT) IN
CASE NO. 72-4718 ON APRIL 22, 1974 AGAINST THE DEPARTMENT OF THE NAVY
(HEREIN CALLED RESPONDENT NAVY). A COMPLAINT WAS ALSO FILED BY
COMPLAINANT UNION IN CASE NO. 72-4759 ON MAY 29, 1974 AGAINST THE U.S.
CIVIL SERVICE COMMISSION (HEREIN CALLED RESPONDENT COMMISSION).
BOTH COMPLAINTS ALLEGED VIOLATIONS BY RESPONDENT OF SECTIONS
19(A)(1), (2) AND (6) OF THE ORDER BY REASON OF COMPLAINANT'S OBSERVER
HAVING BEEN EVICTED FROM AN EEO HEARING ON MARCH 25, 1974 BY A HEARING
EXAMINER OF THE RESPONDENT COMMISSION. IT IS ALLEGED, FURTHER, THAT
COMPLAINANT HAD THE RIGHT UNDER SECTION 10(E) OF THE ORDER TO ATTEND THE
HEARING AS THE BARGAINING REPRESENTATIVE OF THE EMPLOYEES OF LONG BEACH
NAVAL SHIPYARD (HEREIN CALLED THE SHIPYARD) WITH WHOM IT HAS A
COLLECTIVE BARGAINING AGREEMENT. COMPLAINANT ALLEGED THAT THE EEO
HEARING WAS BEING CONDUCTED BY THE RESPONDENT NAVY AND THAT THE EEO
EXAMINER ACTED AS ITS AGENT OF THE SHIPYARD; THAT RESPONDENT
COMMISSION, THROUGH THE HEARING EXAMINER WHOM IT EMPLOYED, DENIED
COMPLAINANT THE RIGHT TO ATTEND THE EEO HEARING. DUE TO THE CLOSE NEXUS
BETWEEN RESPONDENT, IT IS AVERRED THAT BOTH PARTIES DENIED COMPLAINANT
ITS RIGHT TO BE PRESENT AT THE HEARING IN CONTRAVENTION OF 19(E) OF THE
ORDER - ALL OF WHICH CONSTITUTED A REFUSAL TO CONSULT, CONFER, OR
NEGOTIATE AND AMOUNTED TO INTERFERENCE AND RESTRAINT OF EMPLOYEES.
RESPONDENT NAVY CONTENDS AS FOLLOWS: (A) IT IS NOT A PROPER PARTY TO
THIS PROCEEDING SINCE IT DID NOT EMPLOY THE EEO HEARING EXAMINER, NOR
DID IT EXERCISE ANY CONTROL OF SUPERVISION OVER HER ACTIONS, AND NO
EXCLUSIVE RECOGNITION WAS ACCORDED COMPLAINANT BY THIS RESPONDENT; (B)
NO JURISDICTION LIES WITH THE ASSISTANT SECRETARY UNDER 19(D) OF THE
ORDER, SINCE COMPLAINANT COULD HAVE APPEALED THE HEARING EXAMINER'S
EXCLUSION OF THE UNION OBSERVER TO THE CIVIL SERVICE COMMISSION AS PART
OF THE DISCRIMINATION MATTER ITSELF; (C) THE CONDUCT OF THE EXAMINER IS
PROPERLY REVIEWABLE BY THE COMMISSION, NOT THE ASSISTANT SECRETARY, AS
AN ABUSE OF DIRECTION.
RESPONDENT COMMISSION JOINS THE NAVY IN CONTENDING THAT NO
JURISDICTION LIES HEREIN BY VIRTUE OF THE APPLICABILITY OF SECTION 19(D)
OF THE ORDER. IT ALSO MAINTAINS THAT 10(E) REQUIRES AN
EMPLOYER-EMPLOYEE RELATIONSHIP TO GIVE RISE TO RIGHTS THEREUNDER, AND NO
SUCH RELATIONSHIP EXISTS BETWEEN COMPLAINANT AND THE COMMISSION SINCE
THE UNION DOES NOT REPRESENT ITS EMPLOYEES. IT IS CONTENDED, MOREOVER,
(A) THAT THE HEARING EXAMINER WAS NOT AN AGENT OF EITHER RESPONDENT, NOR
WAS THE COMMISSION RESPONSIBLE FOR THE EXAMINER'S ACTIONS; (B) THE
RIGHT OF COMPLAINANT UNDER 10(E) TO HAVE AN OBSERVER PRESENT WAS
SATISFIED BY THE EEO EMPLOYEE HAVING SELECTED A UNION OFFICIAL AS HIS
PERSONAL REPRESENTATIVE THEREAT, (C) SINCE THE EEO HEARING DID NOT DEAL
WITH AN IMPLEMENTATION OF PERSONAL POLICIES, NO ABSOLUTE RIGHT, UNTIL
THEN, FLOWED TO COMPLAINANT UNDER 10(E) TO BE PRESENT AT SAID HEARING;
(D) THE ISSUE IS MOOT SINCE A CLARIFYING FPM LETTER WAS SUBSEQUENTLY
ISSUED PERMITTING THE EXCLUSIVE REPRESENTATIVE TO HAVE AN OBSERVER
PRESENT AT EEO HEARINGS, AND IT WOULD NOT EFFECTUATE THE PURPOSES OF THE
ORDER TO REQUIRE A REMEDY HEREIN.
A HEARING WAS HELD BEFORE THE UNDERSIGNED ON NOVEMBER 14, 1974 AT LOS
ANGELES, CALIFORNIA. ALL PARTIES WERE REPRESENTED BY COUNSEL AND WERE
AFFORDED FULL OPPORTUNITY TO BE HEARD TO PRESENT EVIDENCE TO EXAMINE AND
CROSS-EXAMINE WITNESSES, AND TO MAKE ORAL ARGUMENT. THEREAFTER ALL
PARTIES FILED BRIEFS /2/ WITH THE UNDERSIGNED WHICH HAVE BEEN DULY
CONSIDERED.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATIONS OF ALL THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS:
1. AT ALL TIMES MATERIAL HEREIN COMPLAINANT HAS BEEN THE EXCLUSIVE
BARGAINING REPRESENTATIVE OF ALL UNGRADED EMPLOYEES, NUMBERING ABOUT
5,000, EMPLOYED AT THE LONG BEACH NAVAL SHIPYARD, LONG BEACH,
CALIFORNIA.
2. BOTH COMPLAINANT AND THE SHIPYARD ARE PARTIES TO A COLLECTIVE
BARGAINING AGREEMENT /3/ WHICH, BY ITS TERMS, IS EFFECTIVE FROM FEBRUARY
11, 1974, THE DATE OF ITS APPROVAL, THROUGH JUNE 30, 1975.
3. ARTICLE XXVIII OF THE AFORESAID AGREEMENT PROVIDES INTER ALIA,
THAT THE UNION WILL MAINTAIN AN ACTIVE CIVIL RIGHTS COMMITTEE TO AFFORD
EMPLOYEES COUNSELLING AND REPRESENTATION REGARDING THEIR EMPLOYMENT AND
CIVIL RIGHTS MATTERS; THAT THE UNION WILL HAVE REPRESENTATION ON THE
EEO COMMITTEES OF THE SHIPYARD AND ITS DEPARTMENTS; AND THAT EMPLOYEES
WHO HAVE DIFFICULTIES RE EQUAL EMPLOYMENT OPPORTUNITY ON THE BASIS OF
RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN MAY BE REPRESENTED BY THE
UNION IN ATTEMPTING TO RESOLVE THEIR DIFFERENCES.
4. ROBERT WHITE, A BLACK INDIVIDUAL, HAD BEEN EMPLOYED BY THE
SHIPYARD AS A SHEET METAL LIMITED MECHANIC. WHITE WAS A MEMBER OF THE
SHEET METAL UNION, ONE OF TWELVE LABOR UNIONS COMPRISING THE COMPLAINANT
COUNCIL, AND HE WAS INCLUDED IN THE UNIT OF EMPLOYEES REPRESENTED BY
COMPLAINANT.
5. AS A RESULT OF BEING DISCHARGED BY HIS EMPLOYER, WHITE FILED AN
EQUAL EMPLOYMENT OPPORTUNITY (EEO) COMPLAINT AGAINST THE SHIPYARD, /4/
CONTENDING THAT HIS TERMINATION WAS DUE TO RACIAL DISCRIMINATION, AND
THE EMPLOYEE REQUESTED A HEARING PURSUANT TO PART 713 OF THE FEDERAL
PERSONNEL MANUAL (FPM). /5/
6. THE PERTINENT REGULATIONS IN FPM, PART 713, DEALING WITH EEO
COMPLAINTS AND A HEARING THEREON, PROVIDE, IN SUBSTANCE, AS FOLLOWS:
A) THE HEARING IS HELD BY A COMPLAINTS EXAMINER WHO, IN NEARLY ALL
INSTANCES, MUST BE AN EMPLOYEE OF ANOTHER AGENCY;
B) THE AGENCY WHERE THE COMPLAINT AROSE MUST REQUEST THE COMMISSION
TO SUPPLY THE NAME OF AN EXAMINER CERTIFIED BY THE COMMISSION TO CONDUCT
THE HEARING;
C) THE AGENCY REIMBURSES THE COMMISSION FOR ALL EXPENSES RE THE
INVESTIGATION;
D) ATTENDANCE AT THE HEARING IS LIMITED TO PERSONS DETERMINED BY THE
COMPLAINTS EXAMINER TO HAVE A DIRECT CONNECTION WITH THE COMPLAINT.
7. THE EEO COMPLAINT WAS NOT RESOLVED INFORMALLY, AND THUS WHITE
REQUESTED A HEARING THEREON. THE SHIPYARD ASKED THE RESPONDENT
COMMISSION'S SAN FRANCISCO OFFICE TO FURNISH A COMPLAINTS EXAMINER IN
ACCORDANCE WITH FPM PART 713 TO CONDUCT A FORMAL HEARING.
8. THE COMMISSION ASSIGNED EDNA FRANCIS, AN EMPLOYEE OF THE
COMMISSION ITSELF, TO CONDUCT THE HEARING WHICH WAS HELD ON MARCH 25,
1974 AT THE SHIPYARD. THE HEARING WAS CONVENED AT THAT DATE BY
COMPLAINTS EXAMINER FRANCIS. IT WAS ATTENDED BY AN UNIDENTIFIED
MANAGEMENT REPRESENTATIVE FOR THE SHIPYARD, AND SEYMOUR BUDER, A UNION
STEWARD, WHO APPEARED AT THE REQUEST OF, AND AS THE PERSONAL
REPRESENTATIVE FOR THE COMPLAINANT ROBERT WHITE.
9. COMPLAINANT UNION WAS DESIROUS OF HAVING A REPRESENTATIVE PRESENT
AT THE EEO HEARING ON MARCH 25, 1974. ACCORDINGLY, RUSSELL HATFIELD,
PRESIDENT OF SAID ORGANIZATION, SENT SAM GALLO, VICE-PRESIDENT OF
COMPLAINANT, TO ATTEND THE HEARING AS ITS OBSERVER. HATFIELD TESTIFIED
THAT GALLO WAS SENT, NOT TO REPRESENT WHITE, BUT ON BEHALF OF THE 5,000
OTHER REPRESENTED UNIT EMPLOYEES; THAT THE UNION CONSIDERED THIS
HEARING A "FORMAL" MEETING BETWEEN MANAGEMENT AND EMPLOYEES AT WHICH THE
BARGAINING REPRESENTATIVE WAS REQUIRED TO ATTEND AND PROTECT THE
INTERESTS OF ALL EMPLOYEES; THAT BUDER WAS PRESENT, NOT AS A DESIGNEE
OR REPRESENTATIVE OF THE UNION, BUT AS WHITE'S PERSONAL REPRESENTATIVE;
THAT THE EEO HEARING, WHILE NOT A UNION MATTER, CONCERNS THE COMPLAINANT
SINCE THE EEO HEARING AND DECISION MIGHT AFFECT THE EMPLOYMENT
CONDITIONS AND INTERESTS OF OTHER UNIT EMPLOYEES.
10. AT THE ONSET OF THE HEARING ON MARCH 25, 1974 EXAMINER FRANCIS
ASKED GALLO WHAT HE WAS DOING THERE, AND THE LATTER REPLIED HE WAS
PRESENT AS A UNION OBSERVER. THE HEARING EXAMINER STATED SHE WOULD NOT
PERMIT A UNION OBSERVER AT THE HEARING AND INSISTED THAT GALLO LEAVE THE
PROCEEDING. WHEREUPON, GALLO LEFT BUT NOTED TO FRANCIS THAT HE WAS
LEAVING UNDER PROTEST.
11. UPON LEARNING WHAT TRANSPIRED, HATFIELD PROTESTED GALLO'S
EVICTION AT THE HEARING TO JAMES HOUSTON, DIRECTOR OF INDUSTRIAL
RELATIONS AT THE SHIPYARD. HE ALSO COMPLAINED TO LMRA AREA
ADMINISTRATOR, THOMAS STOVER, AND TO THE COMMISSION'S CHIEF HEARING
EXAMINER KROUGE IN WASHINGTON, D.C.
12. THE DISCRIMINATION COMPLAINT EXAMINER HANDBOOK AND THE GUIDANCE
DIRECTIVES, IN EFFECT AT THE TIME OF THE EEO HEARING, PROVIDED THAT (A)
THESE HEARINGS WERE NOT OPEN TO THE PUBLIC, (B) APART FROM THE
COMPLAINANT, WITNESSES, AND ATTORNEYS, REPRESENTATIVE OF THE COMPLAINANT
AND AGENCY COULD ATTEND THE EEO HEARING AS WELL AS THOSE BEING TRAINED
TO CONDUCT HEARINGS OR WHO HAVE RESPONSIBILITIES IN THIS FIELD, (C) NO
OBSERVER IS ALLOWED TO PARTICIPATE IN THE HEARING, (D) AN OBSERVER FROM
THE UNION WHICH IS THE EXCLUSIVE BARGAINING REPRESENTATIVE COULD ATTEND
THE HEARING IF THE AGREEMENT BETWEEN THE AGENCY AND THE SAID BARGAINING
REPRESENTATIVE PROVIDES FOR AN OBSERVER'S ATTENDANCE AT DISCRIMINATION
COMPLAINT HEARINGS. IF, HOWEVER, THE COMPLAINANT OBJECTED TO THE
OBSERVER'S ATTENDANCE ON THE GROUND THAT HIS PRIVACY WAS INVOLVED, THE
UNION OBSERVER COULD BE EXCLUDED IF THE EXAMINER FOUND MERIT TO THE
OBJECTION.
13. SUBSEQUENT TO THE EEO HEARING, FPM SYSTEM LETTER NO. 713-29,
DATED SEPTEMBER 12, 1974, WAS ISSUED FOR GUIDANCE OF EEO COMPLAINT
EXAMINERS. /6/ IT PROVIDED, IN SUBSTANCE, THAT AN OBSERVER FROM A LABOR
ORGANIZATION WITH EXCLUSIVE RECOGNITION MAY ATTEND THE HEARING.
FURTHER, IT STATED THAT IF THE EMPLOYEE OBJECTS TO SUCH ATTENDANCE ON
THE GROUNDS OF PRIVACY - AND THE EXAMINER FINDS THE OBJECTION VALID -
THE UNION OBSERVER MAY BE EXCLUDED. MOREOVER, THE EXAMINER MAY EXCLUDE
THE OBSERVER IF HE DETERMINES SUCH ACTION SERVES THE BEST INTERESTS OF
THE COMPLAINANT, A WITNESS, OR THE GOVERNMENT.
BOTH RESPONDENTS INSIST THAT UNDER 19(D) OF THE ORDER THE ASSISTANT
SECRETARY LACKS JURISDICTION HEREIN. RESPONDENT NAVY POSTULATES ITS
ARGUMENT ON THE PREMISE THAT THE CIVIL SERVICE COMMISSION'S PROCEDURE IN
FPM CHAPTER 713SS A STATUTORY APPEALS PROCEDURE CONTEMPLATED ORDER
SECTION 19(D). FURTHER, THE COMPLAINANT COULD HAVE APPEALED THE RULING
OF THE EXAMINER - WHICH EXCLUDED COMPLAINANT FROM THE EEO HEARING - AS
PART OF EMPLOYEE WHITE'S DISCRIMINATION CASE. IT IS ARGUED THAT NO
EVIDENCE EXISTS TO SUPPORT THE CONCLUSION THAT RESPONDENT COMMISSION WAS
PRECLUDED FROM CONSIDERING THAT RESPONDENT COMMISSION WAS PRECLUDED FROM
CONSIDERING THE UNFAIR LABOR PRACTICE ALLEGATION HEREIN, I.E., EXCLUSION
OF THE UNION FROM THE HEARING, AND THIS ISSUE COULD HAVE BEEN CONSIDERED
WHEN THE COMMISSION REVIEWED THE EEO TRANSCRIPT. RESPONDENT NAVY THUS
CONCLUDED THAT SINCE THE ISSUE CONCERNING THE EXCLUSION OF COMPLAINANT
FROM THE HEARING COULD HAVE BEEN RAISED UNDER THE FOREGOING APPEALS
PROCEDURE, IT MAY NOT BE RAISED HEREIN.
RESPONDENT COMMISSION, IN ARGUING THE APPLICABILITY OF 19(D),
CONTENDS THAT THE PRESENT MATTER INVOLVES A REMOVAL OF AN EMPLOYEE AND
IS THUS COVERED UNDER PART 771 OF THE FEDERAL PERSONNEL MANUAL. SINCE
THE ISSUE CONCERNS AN ADVERSE ACTION, IT IS ARGUED, THE EMPLOYEE COULD
HAVE FILED HIS CLAIM UNDER 771 WHERE ALL MATTERS RELATED TO THE REMOVAL,
INCLUDING THE RIGHT OF COMPLAINANT TO BE PRESENT AT THE EEO HEARING,
COULD HAVE BEEN REVIEWED. THUS, THE COMMISSION CLAIMS THE ISSUE RE
COMPLAINANT'S RIGHT TO BE PRESENT AT SAID HEARING WAS COGNIZABLE UNDER
THAT APPEALS PROCEDURE AND 19(D) BARS THE INSTANT CASE.
A SIMILAR ARGUMENT TO THE NAVY'S CONTENTION WAS MADE IN VETERANS
ADMINISTRATION, VETERANS BENEFIT OFFICE A/SLMR NO. 246 WHERE TWO
EMPLOYEES ALLEGED THEY WERE DISCHARGED FOR UNION ACTIVITIES. INASMUCH
AS ONE INDIVIDUAL HAD FILED A COMPLAINT WITH HIS EMPLOYER PURSUANT TO
EXECUTIVE ORDER 11478 - WHICH GOVERNED EQUAL EMPLOYMENT AND A
PROSCRIPTION AGAINST DISCRIMINATION BASED ON SEX, RACE, COLOR, RELIGION
OR NATIONAL ORIGIN - THE EMPLOYER CONTENDED THERE WAS NO JURISDICTION
UNDER 19(D) TO HANDLE THE UNFAIR LABOR PRACTICE COMPLAINT. THE
CONTENTION OF THE RESPONDENT THEREIN WAS REJECTED, AND THE ASSISTANT
SECRETARY AFFIRMED THE ADMINISTRATIVE LAW JUDGE'S HOLDING THAT THE
UNFAIR LABOR PRACTICE ISSUE COULD NOT BE RAISED IN A SECTION 713
PROCEEDING - AND THUS THAT SECTION WAS NOT AN APPEALS PROCEDURE WITHIN
THE MEANING OF 19(D) OF THE ORDER.
RESPONDENT NAVY ATTEMPTS TO DISTINGUISH THE MATTER HEREIN FROM THE
CITED CASE BY ALLUDING TO THE FACT THAT THE QUESTION PRESENTED HEREIN
CONCERNS THE EEO PROCEDURES THEMSELVES. SUCH AN ARGUMENT DOES NOT, IN
MU OPINION, ALTER THE CENTRAL QUESTION AS TO WHETHER THE UNFAIR LABOR
PRACTICE ISSUE IS PROPERLY BEFORE THE COMMISSION ON APPEAL IN THE EEO
PROCEEDING. AN EXAMINATION OF THE APPEAL PROVISION /7/ OF THE EEO
REGULATION REVEALS THAT THE COMPLAINANT, IN THAT PROCEEDING, IS AFFORDED
THE OPPORTUNITY TO APPEAL AFTER A FINAL DECISION IS RENDERED BY THE
AGENCY ON HIS COMPLAINT. I CANNOT CONCLUDE THAT THE UNION HEREIN WOULD
HAVE THE RIGHT TO APPEAL THE AGENCY'S DECISION AND THUS POSE BEFORE THE
COMMISSION THE PROPRIETY OF EXCLUDING THE UNION OBSERVER FROM THE EEO
HEARING. MOREOVER, AND APART FROM THAT CONSIDERATION, THE SOLE ISSUE
INVOLVED IN THE DISCRIMINATION PROCEEDING CONCERNS THE DISCHARGE BY THE
NAVY OF EMPLOYEE WHITE. AS THE APPELLATE PROCEDURE SO PROVIDES, A
REVIEW TO THE COMMISSION WOULD BE LIMITED TO THE MERITS OF THE
COMPLAINANT'S CASE. I AM NOT PERSUADED THAT THE COMMISSION COULD REVIEW
THE QUESTION AS TO WHETHER THE UNION WAS IMPROPERLY EXCLUDED FROM THE
HEARING AS THE BARGAINING REPRESENTATIVE UNDER 10(E) OF THE ORDER. THIS
IS PARTICULARLY TRUE WHERE THE COMPLAINANT WHITE DID NOT RAISE THAT
ISSUE, OR ATTEMPT TO APPEAL THE EXCLUSION TO THE COMMISSION.
IN RESPECT TO THE COMMISSION'S INSISTENCE THAT FPM 771 AFFORDS AN
OPPORTUNITY FOR THE COMMISSION IN VIEW, ON AN APPEAL FROM THE ADVERSE
ACTION WHICH INVOLVED THE DISCHARGE OF WHITE, THE EXCLUSION OF THE UNION
FROM THE HEARING, I REJECT THAT CONTENTION. APPEALS FROM ADVERSE
ACTIONS, UNDER THAT REGULATION AND THE STATUTORY PROVISION PERTAINING
THERETO, WOULD NECESSARILY PERTAIN TO ADVERSE ACTIONS (REMOVAL FROM
JOBS) INVOLVING THE INDIVIDUAL INVOLVED. THE CLAIM BY THE UNION IS A
SEPARATE AND DISTINCT "CAUSE OF ACTION", AND I DO NOT DEEM IT AN
INTEGRAL PART OF THE ADVERSE ACTION DIRECTED TOWARD THE EMPLOYEE. AS I
VIEW IT, THE RIGHT OF APPEAL FLOWS TO THE EMPLOYEE WHO IS THE SUBJECT OF
THE ADVERSE ACTION. MOREOVER, I AM NOT CONVINCED THAT THE UNION'S
UNFAIR LABOR PRACTICE WOULD BE PROPERLY BEFORE THE COMMISSION IN AN
APPEAL BASED ON THE EMPLOYEE'S REMOVAL FROM EMPLOYMENT.
BY REASON OF THE FOREGOING, I CONCLUDE THAT THE ISSUE HEREIN WAS NOT
PROPERLY APPEALABLE TO THE COMMISSION, AND ACCORDINGLY, I FIND THAT
19(D) DOES NOT OUST THE ASSISTANT SECRETARY OF JURISDICTION HEREIN.
COMPLAINANT MAINTAINS THAT UNDER 10(E) OF THE ORDER, AS WELL AS
ARTICLE XXVIII OF THE CONTRACT WITH THE SHIPYARD, IT WAS ENTITLED TO
HAVE A REPRESENTATIVE PRESENT AT THE EEO HEARING ON MARCH 25, 1974.
THIS HEARING, IT IS ARGUED, WAS A FORMAL DISCUSSION UNDER 10(E)
AFFECTING THE WORKING CONDITIONS OF ALL EMPLOYEES. MOREOVER,
COMPLAINANT CONTENDS THAT SINCE THE EEO EXAMINER WAS AN EMPLOYEE OF THE
COMMISSION, THE LATTER ACTS AS AN AGENT OF THE ACTIVITY, THE LONG BEACH
NAVAL SHIPYARD.
BOTH RESPONDENTS TAKE THE POSITION THAT THEY ARE NOT THE PROPER
PARTIES. THE NAVY INSISTS THE UNION'S EXCLUSIVE STATUS WAS CONFERRED BY
THE ACTIVITY (THE SHIPYARD) AND THAT THE AGENCY, (DEPARTMENT OF NAVY),
OWES NO OBLIGATION TO THE COMPLAINANT UNDER 19(A)(6) OF THE ORDER. IT
FURTHER ARGUES THAT THE AGENCY EXERCISED NO CONTROL OVER THE EEO
COMPLAINTS EXAMINER WHO, RESPONDENT CONTENDS, WAS NOT A REPRESENTATIVE
OF MANAGEMENT UNDER SECTION 2(F) OF THE ORDER. THE COMMISSION DENIES
THAT IT WAS EITHER THE EMPLOYER OR THE ALTER EGO OF THE SHIPYARD,
MAINTAINING ALSO THAT THE EXAMINER WAS AN INDEPENDENT ADJUDICATOR FOR
WHOSE ACTIONS THE COMMISSION SHOULD NOT BEAR RESPONSIBILITY. IT ALSO
MAINTAINS THAT THE HEARING WAS A FACT FINDING PROCEEDING, AS
DISTINGUISHED FROM A MEETING TO IMPLEMENT A POST EEO HEARING DECISION;
AND THAT IT WAS THIS MEETING WHICH THE UNION OBSERVER COULD ATTEND UNDER
THE ASSISTANT SECRETARY'S RULING. FINALLY, IT URGES THAT THE EMPLOYEE
SELECTED A UNION REPRESENTATIVE TO ATTEND, AND THEREFORE THE UNION'S
RIGHT TO REPRESENT EMPLOYEES AT THE HEARING HAD BEEN SATISFIED.
IN ADDITION TO THE FOREGOING, RESPONDENT NAVY SUGGESTS THAT THE
ASSISTANT SECRETARY NOT POLICE THE RULES AND REGULATIONS OF THE
COMMISSION, AND THUS POLICY CONSIDERATIONS SHOULD DICTATE A DISMISSAL.
/8/ THE COMMISSION ASSERTS THAT THE MATTER IS MOOT /9/ IN VIEW OF THE
MEMO CLARIFYING ITS DIRECTIVE TO EXPLICITLY PERMIT UNION OBSERVERS TO
ATTEND EEO HEARINGS.
(1) RESPONSIBILITY OF RESPONDENT NAVY
APART FROM ANY OTHER CONCEPTS PERTAINING TO THE OBLIGATIONS OF AN
EMPLOYER FOR ACTS OF ITS BRANCHES, I FEEL CONSTRAINED TO RULE THAT THE
CASE AT BAR, IN RESPECT TO CERTAIN ISSUES, IS GOVERNED BY THE ASSISTANT
SECRETARY'S DECISION IN NATIONAL AERONAUTICS AND SPACE ADMINISTRATION,
WASHINGTON, D.C. (NASA), A/SLMR NO. 457. IN THE CITED CASE THE UNION
WAS ACCORDED EXCLUSIVE RECOGNITION AS THE BARGAINING REPRESENTATIVE OF
THE EMPLOYEES AT LYNDON B. JOHNSON SPACE CENTER, NASA. WHEN A
REPRESENTATIVE FROM NASA, WASHINGTON, D.C. INTERVIEWED OR MET WITH
EMPLOYEES AT THE JOHNSON SPACE CENTER, TO DISCUSS THE EEO PROGRAM, AND
THE UNION WAS REFUSED PERMISSION TO HAVE AN OBSERVER PRESENT, A 19(A)(1)
AND (6) COMPLAINT WAS FILED AGAINST BOTH NASA, WASHINGTON, D.C. AND THE
JOHNSON SPACE CENTER NSAS.
A DISTINCTION WAS DRAWN IN THE CITED CASE BETWEEN AN AGENCY, AS AN
ENTITY, AND ITS ACTIVITY. IT WAS CONCLUDED THAT THE OBLIGATION WAS OWED
TO THE UNION BY THE JOHNSON SPACE CENTER, THE ACTIVITY, TO MEET AND
CONFER WITH IT AS THE BARGAINING REPRESENTATIVE. HOWEVER, NO SUCH
OBLIGATION FLOWED FROM WASHINGTON, D.C. NASA, THE AGENCY, TO THE UNION
SINCE THE LATTER WAS NOT ACCORDED RECOGNITION BY, AND HAD NO BARGAINING
RELATIONSHIP WITH, THE AGENCY. SINCE THE OBLIGATION TO MEET AND CONFER
UNDER SECTION 11(A) OF THE ORDER, ACCORDING TO THE ASSISTANT SECRETARY,
APPLIES ONLY IN THE CONTEXT OF THAT RELATIONSHIP BETWEEN THE EXCLUSIVE
REPRESENTATIVE AND THE AGENCY OR ACTIVITY WHICH ACCORDS RECOGNITION, I
CANNOT FIND THE RESPONDENT NAVY TO BE CHARGED WITH SUCH AN OBLIGATION.
IN THE INSTANT CASE, SIMILARLY AS IN THE NASA MATTER, THE RESPONDENT
AGENCY ACCORDED NO RECOGNITION TO COMPLAINANT UNION. THE CONTRACT WAS
NEGOTIATED WITH THE SHIPYARD (ACTIVITY), AND RECOGNITION WAS ACCORDED BY
IT TO COMPLAINANT AS THE EXCLUSIVE REPRESENTATIVE OF THE UNIT EMPLOYEES.
NEITHER DOES IT APPEAR THAT THE RESPONDENT NAVY EXERCISED ANY CONTROL
OVER, OR DIRECTED THE CONDUCT OF, THE COMPLAINT EXAMINER WHO HELD THE
EEO HEARING. IN THIS POSTURE, I FIND THAT THIS RESPONDENT WAS NOT
OBLIGATED TO MEET AND CONFER WITH THE UNION HEREIN, AND THUS, APART FROM
ANY RIGHTS INURING TO THE BENEFIT OF COMPLAINANT UNDER 19(E) OF THE
ORDER, NO FINDING IS WARRANTED THAT RESPONDENT NAVY VIOLATED 19(A)(6)
THEREOF.
A FINDING WAS MADE, HOWEVER, IN THE NASA CASE, SUPRA, THAT THE
AGENCY, WHILE NOT VIOLATING 19(A)(6), DID COMMIT AN INDEPENDENT
VIOLATION OF 19(A)(1) OF THE ORDER. THIS FINDING WAS PREMISED ON THE
IMPLICIT SUGGESTION MADE BY THE AGENCY'S EEO REPRESENTATIVE TO EMPLOYEES
THAT THEY COULD DEAL DIRECTLY WITH THE AGENCY CONCERNING THEIR
CONDITIONS OF EMPLOYMENT. SUCH UNILATERAL DEALINGS WITH EMPLOYEES WAS
DEEMED INCONSISTENT WITH, AND IN DEROGATION OF, THE EXCLUSIVE BARGAINING
REPRESENTATIVE. IT WAS HELD TO BE INTERFERENCE, RESTRAINT AND COERCION
UNDER 19(A)(1). APART FROM THE FACT THAT IT IS DIFFICULT TO COMPREHEND
HOW THE AGENCY, WHICH WAS UNDER NO OBLIGATION TO BARGAIN WITH THE UNION,
CAN BE CONSIDERED TO HAVE BYPASSED THAT UNION IN VIOLATION OF THE ORDER,
RESPONDENT NAVY DID NOT IN ANY EVENT TAKE ACTION SIMILAR TO THE AGENCY
REPRESENTATIVE IN THE NASA CASE. IT UNDERTOOK NO PARTICIPATION IN THE
GRIEVANCE INQUIRY, NOR MET WITH EMPLOYEE WHITE TO RESOLVE SAME. THUS, I
FIND NO INDEPENDENT VIOLATION BY RESPONDENT NAVY OF 19(A)(1).
(2) RESPONSIBILITY OF RESPONDENT COMMISSION
IN SEEKING TO HOLD THE COMMISSION RESPONSIBLE FOR EVICTING THE
UNION'S OBSERVER FROM THE HEARING, COMPLAINANT HAS INDULGED IN A TYPE OF
SYLLOGISTIC REASONING. IT CONTENDS: (A) THE ASSISTANT SECRETARY HAS,
IN U.S. DEPARTMENT OF ARMY TRANSPORTATION MOTOR POOL, FORT WAINWRIGHT,
ALASKA A/SLMR NO. 278, DETERMINED THE EEO HEARINGS ARE FORMAL
DISCUSSIONS WHICH THE OBSERVER FOR THE BARGAINING REPRESENTATIVE HAS THE
RIGHT TO ATTEND UNDER 10(E), AND TO EXCLUDE IT IS A VIOLATION OF
19(A)(6); (B) RESPONDENT COMMISSION, THROUGH ITS COMPLAINTS EXAMINER
WHO CONDUCTED THE EEO HEARING HEREIN, ACTED AS THE AGENT OF THE
SHIPYARD, (C) THE COMMISSION, BY EXCLUDING THE COMPLAINANT'S OBSERVER,
HAS VIOLATED 19(A)(6) OF THE ORDER.
COMPLAINANT'S ARGUMENT, HOWEVER, FAILS TO BE PERSUASIVE UPON
EXAMINATION OF ITS FIRST PREMISE AND THE FT. WAINWRIGHT CASE, SUPRA.
THE UNION, IN THE CITED CASE, WAS NOT EXCLUDED FROM THE EEO HEARING BUT
AT THE FORMAL DISCUSSION, SUBSEQUENT TO THE HEARING, WHICH WAS HELD TO
IMPLEMENT THE HEARING EXAMINER'S DECISION. THE DENIAL TO THE EMPLOYEE
THEREIN OF HIS REQUEST TO HAVE HIS UNION REPRESENTATIVE PRESENT AT SUCH
A DISCUSSION WAS HELD VIOLATIVE OF 19(A)(1). BUT NO CASE APPEARS WHERE
THE UNION REPRESENTATIVE /10/ HAS BEEN DENIED THE RIGHT TO ATTEND THE
EEO HEARING ITSELF AND THE ASSISTANT SECRETARY HAS RULED ON THE
PROPRIETY THEREOF IN LIGHT OF 19(E) OF THE ORDER.
IT MAY WELL BE THAT THE EEO WAS A "FORMAL" PROCEEDING IN RESPECT TO
THE ALLEGED DISCRIMINATION AGAINST EMPLOYEE WHITE. NEVERTHELESS, I AM
NOT CONVINCED THAT IT IS THE TYPE OF DISCUSSIONS BETWEEN MANAGEMENT AND
EMPLOYEES CONCERNING GRIEVANCES, AND OTHER MATTERS AFFECTING WORKING
CONDITIONS OF EMPLOYEES, WHICH IS ENVISAGED BY 10(E) OF THE ORDER. PART
713, SUBPART B, SECTION 713,218 OF THE EEO REGULATIONS PROVIDES FOR A
HEARING SO THAT THE EXAMINER SHALL . . . "BRING OUT PERTINENT FACTS."
THE HEARING SO CONDUCTED BY THE COMPLAINT EXAMINER IS THUS A LOGICAL
EXTENSION OF THE ORIGINAL INVESTIGATION BY THE AGENCY ITSELF. IT WAS
NOT, IN MY OPINION, A DISCUSSION OR MEETING BETWEEN MANAGEMENT AND THE
EMPLOYEE REGARDING A PROPOSED DECISION IN REGARD TO THE GRIEVANCE, NOR
WAS IT A DISCUSSION WITH RESPECT TO THE IMPLEMENTATION OF A
RECOMMENDATION OR FINDING OF THE HEARING EXAMINER CONCERNING WHITE'S
GRIEVANCE. WHILE, UNDER THE REGULATIONS, THE GRIEVANT IS ENTITLED TO
HAVE HIS REPRESENTATIVE PRESENT, THE EMPLOYEE HEREIN WAS ACCORDED THIS
RIGHT AND WAS SO REPRESENTED BY BUDER THEREAT. ACCORDINGLY, I WOULD
CONCLUDE THAT, INSOFAR AS 10(E) IS CONCERNED, NO RIGHT ATTACHES TO THE
COMPLAINANT UNION TO BE PRESENT AT AN EEO HEARING HELD TO INQUIRE INTO
ALLEGED RACIAL DISCRIMINATION TOWARD AN EMPLOYEE WHEN THE LATTER HAS
CHOSEN HIS PERSONAL REPRESENTATIVE TO ATTEND. /11/
THE RESPONDENT COMMISSION, IT IS TRUE, DID CONDUCT THE HEARING AT THE
REQUEST OF THE SHIPYARD, AND IN ACCORD WITH THE EEO REGULATIONS. BUT I
DO NOT CONSIDER SUCH PARTICIPATION - AS SUFFICIENT TO ENDOW THE
COMMISSION WITH THE STATUS REQUIRED TO IMPOSE UPON IT A BARGAINING
OBLIGATION UNDER 11(A) OF THE ORDER. IF, AS STATED IN THE NASA CASE,
SUPRA, COMPLAINANT'S RIGHTS AS EXCLUSIVE REPRESENTATIVE ARE PREDICATED
ON EXCLUSIVE RECOGNITION ACCORDED IT BY THE ACTIVITY, NO SUCH RIGHT
EXISTS VIS-A-VIS THE COMMISSION. THE LATTER DID NOT ATTEMPT TO STAND IN
THE SHIPYARD'S PLACE AS AN EMPLOYER, NOR TO DEAL WITH THE UNION IN
DEROGATION OF THE ACTIVITY ITSELF. THE STATUS OF THE EXAMINER, AS AN
INDEPENDENT DESIGNEE, DETRACTS FROM THE ALLEGED NEXUS BETWEEN THE
SHIPYARD AND THE COMMISSION. HIS FINDINGS AND RECOMMENDATIONS ARE NOT
MADE AS AN EMPLOYEE OR REPRESENTATIVE OF THE ACTIVITY, AND THUS I DO NOT
ACCEPT THE CONTENTION THAT THE COMMISSION IS THE ALTER EGO OF THE
SHIPYARD.
COMPLAINANT RELIES, IN PART, ON ARTICLE XXVIII OF THE AGREEMENT WITH
THE ACTIVITY, TO SUPPORT ITS RIGHTS TO APPEAR AT THE EEO HEARING.
HOWEVER, THAT PROVISION ENTITLES THE BARGAINING AGENT TO BE REPRESENTED
ON EEO COMMITTEES OF THE SHIPYARD. IT DOES NOT CONFER, AND DOUBTLESS
COULD NOT, A RIGHT UPON THE UNION TO SEND AN OBSERVER TO THE HEARING
SUBJECT TO THE REVIEW OF THE COMMISSION. THE EXAMINER, IN CONDUCTING
THE HEARING, MUST NECESSARILY BE GUIDED BY THE EEO REGULATIONS /12/
PERTAINING TO THE HEARING RATHER THAN THE CONTRACTUAL ARRANGEMENT
BETWEEN THE PARTIES.
ACCORDINGLY, AND IN VIEW OF THE FOREGOING, I CONCLUDE THAT RESPONDENT
COMMISSION OWED NO OBLIGATION, EITHER DIRECTLY OR INDIRECTLY, TO MEET
AND CONFER WITH COMPLAINANT UNDER 11(A) OF THE ORDER; AND, FURTHER,
THAT ITS CONDUCT WAS NOT IN DEROGATION OF THE EXCLUSIVE BARGAINING
RELATIONSHIP BETWEEN THE SHIPYARD AND THE COMPLAINANT. HENCE, I FIND NO
VIOLATION BY THE COMMISSION OF 19(A)(1), (2) OR (6) OF THE ORDER.
UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS THE
UNDERSIGNED RECOMMENDS THAT THE COMPLAINT IN CASE NO. 72-4718 AGAINST
RESPONDENT DEPARTMENT OF NAVY AND THE COMPLAINT IN CASE NO. 72-4759
AGAINST RESPONDENT U.S. CIVIL SERVICE COMMISSION HEREIN BE DISMISSED.
DATED: JAN. 30, 1975
WASHINGTON, D.C.
/1/ BOTH OF THE INSTANT CASES WERE CONSOLIDATED BY AN ORDER ISSUED ON
SEPTEMBER 13, 1974.
/2/ IN ITS POST HEARING BRIEF COMPLAINANT DOES NOT URGE THAT
RESPONDENTS VIOLATED 19(A)(2) OF THE ORDER.
/3/ COMPLAINANT'S EXHIBIT NO. 1.
/4/ NEITHER THE DATE OF WHITE'S DISCHARGE, NOR THE DATE OF FILING
SAID EEO COMPLAINT, APPEARS IN THE RECORD, BUT SUCH DATES ARE NOT
NECESSARY TO A DETERMINATION OF THE ALLEGED UNFAIR LABOR PRACTICE.
/5/ COMMISSION'S EXHIBIT NO. 1.
/6/ RESPONDENT COMMISSION MAINTAINS THIS LETTER MERELY CLARIFIED
EXISTING REGULATIONS AND INSTRUCTIONS AND CONSTITUTED NO CHANGE THEREIN.
/7/ SECTION 731.231.
/8/ THE NAVY CITES OEO, REGION V, CHICAGO, ILL., A/SLMR NO. 334 IN
SUPPORT HEREOF. THAT CASE INVOLVED AN AGENCY GRIEVANCE PROCEDURE WHICH
DID NOT RESULT FROM RIGHTS ACCORDED EMPLOYEES OR UNIONS UNDER THE ORDER.
THUS, A FAILURE TO PROCESS A GRIEVANCE THEREUNDER COULD NOT INTERFERE
WITH RIGHTS ASSURED BY THE ORDER. I DO NOT CONCLUDE THAT THE EEO
PROCEDURE IS AN AGENCY GRIEVANCE PROCEDURE SO AS TO MAKE THE OEO CASE
CONTROLLING.
/9/ IN VIEW OF MY CONCLUSION WITH RESPECT TO THE MERITS OF THE
19(A)(1) AND (6) ALLEGATIONS, I MAKE NO RECOMMENDATION AS TO THE
MOOTNESS OF THE ISSUES HEREIN.
/10/ ALTHOUGH SEYMOUR BUDER WAS THE UNION STEWARD AND ATTENDED THE
EEO HEARING AT WHITE'S REQUEST, I DO NOT FIND, NOR AGREE WITH RESPONDENT
COMMISSION, THAT COMPLAINANT WAS THUS REPRESENTED THEREAT. THE RECORD
REFLECTS BUDER APPEARED AS WHITE'S PERSONAL REPRESENTATIVE AT THE
EMPLOYEE'S REQUEST. MOREOVER, BUDER DID NOT STATE HE APPEARED ON THE
UNION BEHALF, NOR DID COMPLAINANT CONSIDER THAT HE SO APPEARED.
/11/ CF. FEDERAL AVIATION ADMINISTRATION, CLEVELAND ARTC CENTER,
A/SLMR NO. 430; FEDERAL AVIATION ADMINISTRATION, LAS VEGAS AIR TRAFFIC
CONTROL TOWER, A/SLMR NO. 429.
/12/ WHILE RESPONDENT NAVY URGES THAT, AT MOST, THE EXAMINER'S RULING
IS AN ABUSE OF DIRECTION WHICH FORECLOSES A FINDING OF AN UNFAIR LABOR
PRACTICE, I DO NOT AGREE. IF AN OBLIGATION FLOWED TO COMPLAINANT FROM
EITHER RESPONDENT, DISCRETIONARY ABUSE WOULD NOT CONSTITUTE A DEFENSE
HEREIN.
5 A/SLMR 528; P. 424; CASE NO. 50-11103(CA); JUNE 30. 1975.
GENERAL SERVICES ADMINISTRATION,
REGION 5, PUBLIC BUILDINGS SERVICE,
CHICAGO FIELD OFFICE
A/SLMR NO. 528
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY LOCAL
739, NATIONAL FEDERATION OF FEDERAL EMPLOYEES (NFFE) ALLEGING THAT THE
GENERAL SERVICES ADMINISTRATION (GSA), REGION 5, PUBLIC BUILDINGS
SERVICE, CHICAGO FIELD OFFICE (RESPONDENT) VIOLATED SECTION 19(A)(6) OF
THE ORDER BY CONTRACTING OUT WORK AT PARTICULAR LOCATIONS WITHOUT
NOTIFYING THE NFFE AS REQUIRED BY THE NEGOTIATED AGREEMENT. IN THIS
REGARD, THE PARTIES' NEGOTIATED AGREEMENT PROVIDED, IN PART, THAT " . .
. (C)ONTRACTING OUT WILL BE CARRIED OUT IN SUCH A MANNER AS TO MINIMIZE
DISPLACEMENT OF GSA EMPLOYEES. THE UNION REPRESENTATIVE WILL BE
NOTIFIED WHEN WORK NORMALLY PERFORMED BY GSA EMPLOYEES AT A PARTICULAR
LOCATION IS CONTRACTED OUT." THE NFFE ALLEGED THAT AT TWO LOCATIONS
PAINTING WORK WAS CONTRACTED OUT WHILE PAINTING WORK WAS BEING PERFORMED
AT THOSE LOCATIONS BY GSA PAINTERS. THE RESPONDENT MOVED THAT THE
COMPLAINT BE DISMISSED ON THE BASIS THAT THE MATTER INVOLVED A QUESTION
OF CONTRACT INTERPRETATION AND, AS REQUIRED BY SECTION 13(A) OF THE
ORDER, THE NEGOTIATED AGREEMENT PROVIDED A MEANS FOR RESOLVING
GRIEVANCES OVER INTERPRETATIONS OR APPLICATION OF THE AGREEMENT.
IN RECOMMENDING THE DENIAL OF THE MOTION TO DISMISS THE COMPLAINT,
THE ADMINISTRATIVE LAW JUDGE NOTED THAT WHILE NOT EVERY BREACH OF A
CONTRACT MAY BE AN UNFAIR LABOR PRACTICE, AS, FOR EXAMPLE, A FLAGRANT OR
PERSISTENT BREACH OF THE AGREEMENT OR A CLEAR UNILATERAL CHANGE IN THE
CONTRACT AS THE COMPLAINANT ALLEGES WAS THE SITUATION HEREIN. IN SUCH
CIRCUMSTANCES, THE ADMINISTRATIVE LAW JUDGE NOTED THAT SECTION 19(D)
PERMITS A COMPLAINANT TO PURSUE THE MATTER THROUGH EITHER THE GRIEVANCE
OR UNFAIR LABOR PRACTICE ROUTE, BUT THAT IF IT CHOOSES THE UNFAIR LABOR
PRACTICE ROUTE IN A MATTER INVOLVING CONTRACT INTERPRETATION, IT MUST
ESTABLISH THAT THERE WAS A PATENT BREACH OF THE CONTRACT THAT
CONSTITUTED A UNILATERAL CHANGE IN THE CONTRACT.
IN THE INSTANT PROCEEDING, THE ADMINISTRATIVE LAW JUDGE CONCLUDED
THAT THE FACTS DID NOT WARRANT THE CONCLUSION THAT THE RESPONDENT HAD
VIOLATED SECTION 19(A)(6) OF THE ORDER. IN THIS REGARD, HE FOUND THAT
THE CONTRACT AWARDED BY THE RESPONDENT WAS FOR A MAJOR RENOVATION AT ONE
LOCATION ONLY, AND INCLUDED PAINTING, AS WAS CUSTOMARY; THAT THE NFFE
WAS NOT NOTIFIED; THAT THE NFFE HAD NOT BEEN NOTIFIED IN THE PAST WHEN
THAT TYPE OF CONTRACT WAS AWARDED; AND THAT THE NFFE HAD NEVER
COMPLAINED BEFORE ABOUT SUCH CONTRACTING OUT. FURTHER, HE FOUND THAT
THE TWO GSA PAINTING OF THE MAGNITUDE SET FORTH IN THE CONTRACT WHICH
WAS AWARDED, AND, FINALLY, THAT THEY HAD CONTINUED TO PERFORM THEIR
REGULAR WORK ON A FULL-TIME BASIS WHILE THE CONTRACTED OUT WORK WAS
PERFORMED. THE ADMINISTRATIVE LAW JUDGE CONCLUDED THE BASIC ISSUES
INVOLVED THE MEANING OF TWO PHRASES IN THE NEGOTIATED AGREEMENT, I.E.
"MINIMIZE DISPLACEMENT OF GSA EMPLOYEES" AND "WORK NORMALLY PERFORMED BY
GSA EMPLOYEES"; THAT THESE WERE "QUESTIONS ON WHICH REASONABLE PEOPLE
CAN DIFFER"; AND THAT THERE WAS INSUFFICIENT EVIDENCE IN THE RECORD TO
CONCLUDE THAT THE RESPONDENT'S INTERPRETATION AND APPLICATION WERE NOT
IN GOOD FAITH. HE CONCLUDED THAT EVEN IF THERE HAD BEEN A BREACH OF THE
NEGOTIATED AGREEMENT, IT WAS NOT ONE WHICH CLEARLY CONSTITUTED AN
ATTEMPTED UNILATERAL REVISION OF THE AGREEMENT BY THE RESPONDENT BUT,
RATHER, WAS ONE WHICH AROSE OUT OF A SIMPLE AND SINCERE DISAGREEMENT
OVER THE PROPER INTERPRETATION AND APPLICATION OF THE AGREEMENT AND,
THEREFORE, WAS NOT VIOLATIVE OF SECTION 19(A) OF THE ORDER. BASED ON
THE FOREGOING, THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE
COMPLAINT BE DISMISSED IN ITS ENTIRETY.
THE ASSISTANT SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE AND ORDERED THAT THE
COMPLAINT BE DISMISSED.
GENERAL SERVICES ADMINISTRATION,
REGION 5, PUBLIC BUILDING SERVICE,
CHICAGO FIELD OFFICES
AND
LOCAL 739, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
ON APRIL 2, 1975, ADMINISTRATIVE LAW JUDGE MILTON KRAMER ISSUED HIS
RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAD NOT ENGAGED IN THE ALLEGED UNFAIR LABOR
PRACTICES AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS
ENTIRETY. THEREAFTER, THE COMPLAINT FILED EXCEPTIONS WITH RESPECT TO
THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
THE ASSISTANT SECRETARY 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
EXCEPTIONS FILED BY THE COMPLAINANT, I HEREBY ADOPT THE ADMINISTRATIVE
LAW JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATION THAT DISMISSAL OF
THE COMPLAINT IS WARRANTED.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 50-11103(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 30, 1975
IN THE MATTER OF
GENERAL SERVICES ADMINISTRATION
REGION 5, PUBLIC BUILDINGS SERVICE
AND
LOCAL 739, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
ROBERT J. GORMAN
COUNCIL OF NFFE LOCALS, GSA REGION 5
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
8 EAST DELAWARE PLACE
CHICAGO, ILLINOIS 60611
NAPOLEON BONAPARTE
PRESIDENT, LOCAL 739
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1946 WEST WARREN BOULEVARD
CHICAGO ILLINOIS 60612
THOMAS N. GASQUE, ESQ.
ASSISTANT GENERAL COUNSEL
HAYDEN J. PRICE, ESQ.
DEPUTY ASSISTANT GENERAL COUNSEL
GENERAL SERVICES ADMINISTRATION, ROOM 3106
18TH AND F STREETS, N.W.
WASHINGTON, D.C. 20405
BEFORE: MILTON KRAMER
ADMINISTRATIVE LAW JUDGE
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491 AS AMENDED. IT WAS
INITIATED BY A COMPLAINT DATED AND FILED FEBRUARY 27, 1974. THE
COMPLAINANT ALLEGED THAT FROM ABOUT JUNE OR JULY OF 1973 THE RESPONDENT
HAD BEEN CONTRACTING OUT WORK PERFORMED AT PARTICULAR LOCATIONS WITHOUT
FIRST NOTIFYING UNION REPRESENTATIVES AS REQUIRED BY THE COLLECTIVE
BARGAINING AGREEMENT BETWEEN THE RESPONDENT AND THE GSA REGION 5 COUNCIL
OF NFFE LOCALS. THIS CONTINUOUS ALLEGED VIOLATION OF THE AGREEMENT WAS
ALLEGED TO CONSTITUTE A VIOLATION OF SECTION 19(A)(6) OF EXECUTIVE ORDER
11491 AS AMENDED. SPECIFICALLY, THE COMPLAINT ALLEGED THAT AT 536 SOUTH
CLARK STREET AND AT 844 NORTH RUSH STREET PAINTING WORK WAS CONTRACTED
OUT WHILE PAINTING WORK WAS BEING PERFORMED AT THOSE LOCATIONS BY GSA
PAINTERS.
UNDER DATE OF MARCH 19, 1974 THE RESPONDENT FILED A RESPONSE TO THE
COMPLAINT. IT STATED THAT THE COMPLAINT WAS THE FIRST NOTICE TO THE
RESPONDENT OF A CONTENTION THAT THERE HAD BEEN AN UNFAIR LABOR PRACTICE
AT 844 NORTH RUSH STREET AND THE RESPONDENT THEREFORE "MOVES TO DISMISS
THIS LOCATION FROM THE COMPLAINT SO THAT THE ALLEGATIONS MAY BE DEALT
WITH UNDER INFORMAL NEGOTIATIONS PROCEDURES." /1/ THE RESPONSE ALSO
DENIED THAT AN UNFAIR LABOR PRACTICE HAS BEEN COMMITTED OR THAT THE
RESPONDENT HAD VIOLATED THE AGREEMENT BETWEEN THE PARTIES. ON APRIL 1,
1974 THE COMPLAINANT FILED AN ANSWER TO THE RESPONDENT'S RESPONSE TO THE
COMPLAINT.
PURSUANT TO A NOTICE OF HEARING DATED AUGUST 12, 1974 ISSUED BY THE
ASSISTANT REGIONAL DIRECTOR, A HEARING WAS HELD ON OCTOBER 2 AND 3, 1974
IN CHICAGO, ILLINOIS. THE COMPLAINANT WAS REPRESENTED BY THE CHIEF
UNION NEGOTIATOR OF THE GSA REGION 5 COUNCIL OF NFFE LOCALS AND BY THE
PRESIDENT OF LOCAL 739. THE RESPONDENT WAS REPRESENTED BY THE ASSISTANT
GENERAL COUNSEL AND DEPUTY ASSISTANT GENERAL COUNSEL OF GENERAL SERVICES
ADMINISTRATION. TIMELY BRIEFS WERE FILED BY THE PARTIES ON NOVEMBER 4,
1974.
PRIOR TO THE ISSUANCE OF THE NOTICE OF HEARING THE RESPONDENT HAD
SUBMITTED TO THE ASSISTANT REGIONAL DIRECTOR A MOTION TO DISMISS
COMPLAINT. THE ASSISTANT REGIONAL DIRECTOR DENIED THE MOTION. AT THE
BEGINNING OF THE HEARING THE RESPONDENT RENEWED THE MOTION BY FILING IT
WITH ME /2/ TOGETHER WITH A SUPPORTING MEMORANDUM. /3/
THE RESPONDENT'S MOTION IS PREDICATED ON SECTION 13(A) OF THE
EXECUTIVE ORDER AND THE EXISTENCE OF A GRIEVANCE PROCEDURE IN THE
COLLECTIVE AGREEMENT OF THE PARTIES FOR RESOLVING GRIEVANCES OVER THE
INTERPRETATION OR APPLICATION OF THE AGREEMENT. SECTION 13(A) PROVIDES
IN PERTINENT PART:
"(A) AN AGREEMENT BETWEEN AN AGENCY AND A LABOR ORGANIZATION SHALL
PROVIDE A PROCEDURE,
APPLICABLE ONLY TO THE UNIT, FOR THE CONSIDERATION OF GRIEVANCES OVER
THE INTERPRETATION OR
APPLICATION OF THE AGREEMENT. A NEGOTIATED GRIEVANCE PROCEDURE . . .
SHALL BE THE EXCLUSIVE
PROCEDURE AVAILABLE TO THE PARTIES AND THE EMPLOYEES IN THE UNIT FOR
RESOLVING SUCH
GRIEVANCES. . . . "
THE RESPONDENT ARGUES THAT SINCE THE DISPUTE HERE INVOLVED TURNS ON
THE INTERPRETATION OR APPLICATION OF THE AGREEMENT, THE GRIEVANCE
PROCEDURE IS THE "EXCLUSIVE PROCEDURE" AND THE ONLY MEANS AVAILABLE TO
RESOLVE IT AND THE ASSISTANT SECRETARY IS THEREFORE WITHOUT JURISDICTION
TO RESOLVE IT IN AN UNFAIR LABOR PRACTICE PROCEEDING.
WHILE NOT EVERY BREACH OF CONTRACT IS AN UNFAIR LABOR PRACTICE, A
BREACH OF CONTRACT CAN BE AN UNFAIR LABOR PRACTICE. WHEN IT IS, IT MAY
BE PRESENTED EITHER AS A GRIEVANCE UNDER THE GRIEVANCE PROCEDURE OR IT
MAY BE PRESENTED AS AN UNFAIR LABOR PRACTICE UNDER THE EXECUTIVE ORDER.
THAT IS EXACTLY WHAT IS PROVIDED IN SECTION 19(D) OF THE ORDER. THE
SECOND SENTENCE OF THAT SECTION PROVIDES:
"ISSUES WHICH CAN BE RAISED UNDER A GRIEVANCE PROCEDURE MAY, IN THE
DISCRETION OF THE
AGGRIEVED PARTY, BE RAISED UNDER THAT PROCEDURE OR THE COMPLAINT
PROCEDURE UNDER THIS SECTION,
BUT NOT UNDER BOTH PROCEDURES."
UNDER THE RESPONDENT'S INTERPRETATION OF SECTION 13(A) OF THE ORDER,
SECTION 19(D) WOULD BE INAPPLICABLE TO CONDUCT PURSUANT TO AN ATTEMPTED
UNILATERAL CHANGE IN THE AGREEMENT; THE AGGRIEVED PARTY WOULD ALWAYS BE
RELEGATED TO ITS CONTRACT REMEDY.
A BREACH OF CONTRACT CAN BE NOT ONLY A BREACH BUT UNDER CERTAIN
CIRCUMSTANCES CAN BE ALSO AN UNFAIR LABOR PRACTICE. FOR EXAMPLE, IF
SUFFICIENTLY FLAGRANT AND PERSISTENT, A BREACH OF CONTRACT MAY RISE TO
THE SERIOUSNESS OF A UNILATERAL CHANGE IN THE CONTRACT AND HENCE A
VIOLATION OF SECTION 19(A)(6) OF THE EXECUTIVE ORDER. /4/ THE
COMPLAINANT TAKES THE POSITION THAT THAT IS THE SITUATION HERE, AND
THEREFORE PRESENTS THE MATTER AS AN UNFAIR LABOR PRACTICE AS IT IS GIVEN
THE RIGHT TO DO BY SECTION 19(D) OF THE EXECUTIVE ORDER. /5/ THE
COMPLAINANT MAY BE IN ERROR IN SO VIEWING THE SITUATION. IF IT IS IN
ERROR THE COMPLAINT SHOULD BE DISMISSED, NOT FOR LACK OF JURSIDICTION TO
ENTERTAIN IT BUT BECAUSE THE COMPLAINANT HAS FAILED TO ENTERTAIN IT BUT
BECAUSE THE COMPLAINANT HAS FAILED TO ESTABLISH THE CASE IT ASSERTS.
SECTION 19(D) GIVES THE COMPLAINANT THE CHOICE OF FOLLOWING THE
GRIEVANCE ROUTE OR THE UNFAIR LABOR PRACTICE ROUTE, BUT NOT BOTH. IF IT
CHOOSES THE LATTER IT ASSUMES A MORE ONEROUS BURDEN, THAT OF
ESTABLISHING NOT ONLY THAT THERE WAS A BREACH BUT THAT IT WAS SO PATENT
A BREACH AS TO IMPLY THAT THE RESPONDENT COULD NOT REASONABLY HAVE
THOUGHT OTHERWISE AND THUS CONSTITUTED AN ATTEMPTED UNILATERAL CHANGE IN
THE AGREEMENT IN VIOLATION OF SECTION 19(A)(6) OF THE EXECUTIVE ORDER.
THE MOTION TO DISMISS COMPLAINT SHOULD BE DENIED.
THE COMPLAINANT HAS BEEN THE EXCLUSIVE REPRESENTATIVE OF EMPLOYEES OF
RESPONDENT IN SEVERAL CRAFTS, INCLUDING PAINTING, SINCE JANUARY 21,
1966. IT IS A COMPONENT OF GSA REGION 5 COUNCIL OF NFFE LOCALS. AT ALL
TIMES RELEVANT TO THIS CASE THERE WAS A COLLECTIVE BARGAINING AGREEMENT
(THE "GENERAL AGREEMENT") IN EFFECT BETWEEN THE COUNCIL AND THE
RESPONDENT WHICH BECAME EFFECTIVE DECEMBER 24, 1970. SECTION 26.5 OF
THE GENERAL AGREEMENT PROVIDES:
"CONTRACTING OUT WILL BE IN ACCORDANCE WITH THE DIRECTIVES OF THE
CIVIL SERVICE COMMISSION
AND THE GENERAL ACCOUNTING OFFICE. CONTRACTING OUT WILL BE CARRIED
OUT IN SUCH A MANNER AS TO
MINIMIZE DISPLACEMENT OF GSA EMPLOYEES. THE UNION REPRESENTATIVE
WILL BE NOTIFIED WHEN WORK
NORMALLY PERFORMED BY GSA EMPLOYEES AT A PARTICULAR LOCATION IS
CONTRACTED OUT."
THE BUILDING AT 536 SOUTH CLARK STREET IN CHICAGO IS A TEN STORY
BUILDING OCCUPYING A SQUARE BLOCK OCCUPIED BY THE UNITED STATES
GOVERNMENT AND CONTAINING ALMOST A HALF-MILLION SQUARE FEET OF FLOOR
SPACE. IT IS OPERATED BY THE GENERAL SERVICES ADMINISTRATION.
NORMALLY, AND AT ALL TIMES RELEVANT, GSA EMPLOYED TWO PAINTERS FULL TIME
IN THIS BUILDING.
IN 1973 GSA AWARDED A CONTRACT FOR A MAJOR RENOVATION OF THE BUILDING
PURSUANT TO COMPETITIVE BIDS. THE AWARD WAS MADE ON JUNE 29, 1973 TO
DUSHAN VUJOSHEVICH DOING BUSINESS AS DUSHAN ELECTRIC COMPANY IN THE
AMOUNT OF $275,000. OF THAT AMOUNT, $50,000 WAS FOR PAINTING. WORK
UNDER THE CONTRACT COMMENCED AUGUST 1, 1973; THE PAINTING PART OF THE
WORK UNDER THE CONTRACT BEGAN IN OCTOBER 1973. THE UNION REPRESENTATIVE
WAS NOT NOTIFIED THAT THE CONTRACT WAS GOING TO BE AWARDED NOR THAT IT
HAD BEEN AWARDED. THE TWO PAINTERS EMPLOYED BY GSA IN THE BUILDING AT
THE TIME THE CONTRACT WAS AWARDED CONTINUED TO BE EMPLOYED AT THEIR
NORMAL WORK THROUGHOUT THE PERFORMANCE OF THE DUSHAN CONTRACT; THEY
WERE STILL SO EMPLOYED AT THE TIME OF THE HEARING IN THIS CASE.
PAINTING INVOLVED IN CONSTRUCTION WORK UNDER A CONTRACT WAS NORMALLY
INCLUDED IN THE CONSTRUCTION CONTRACT. THE VOLUME OF PAINTING INVOLVED
IN THE DUSHAN CONTRACT WAS FAR BEYOND THE AMOUNT NORMALLY PERFORMED BY
GSA THROUGH "FORCE ACCOUNT", I.E., WORK DONE BY ITS OWN EMPLOYEES;
REGULAR PAINTERS OF THE RESPONDENT WERE NEVER ASSIGNED THAT MUCH WORK
UNDER A SINGLE WORK ORDER. IT WOULD HAVE TAKEN THE TWO REGULAR PAINTERS
EMPLOYED AT 536 SOUTH CLARK AT LEAST SIX MONTHS FULL TIME WORK TO HAVE
PERFORMED THE PAINTING INCLUDED IN THE DUSHAN CONTRACT; WHILE THE
CONTRACTOR WAS PERFORMING IT THE TWO REGULAR PAINTERS IN THE BUILDING
CONTINUED TO WORK FULL TIME IN THE BUILDING PERFORMING THEIR REGULAR
WORK. THE DUSHAN CONTRACT INCLUDED PAINTING FORTY-TWO TOILET ROOMS;
SOME EXTERIOR PAINTING; INTERIOR PAINTING OF THE STAIR WELLS; LOBBIES
ON EACH FLOOR; THE CORRIDORS ON THE FIRST, SECOND, EIGHTH, NINTH, AND
TENTH FLOORS; AND SOME OFFICE AREAS ON THE FIFTH AND SIXTH FLOORS.
THE COMPLAINANT HAD NEVER COMPLAINED BEFORE WHEN IT WAS NOT NOTIFIED
OF PAINTING WORK CONTRACTED OUT. NORMALLY THE RESPONDENT NOTIFIED THE
UNION, PURSUANT TO SECTION 26.5 OF THE GENERAL AGREEMENT, ONLY OF WORK
CONTRACTED OUT FOR LESS THAN $2,000. THE UNION COMPLAINED IN THIS CASE
BECAUSE TWO EMPLOYEES IT REPRESENTED IN THE GOVERNMENT BUILDING AT 844
NORTH RUSH STREET WERE ELIMINATED PURSUANT TO A REDUCTION-IN-FORCE AT
ABOUT THE SAME TIME.
THE TWO EMPLOYEES REFERRED TO WHO WERE ELIMINATED IN A RIF WERE
EMPLOYED AT 844 NORTH RUSH, EMPLOYEES NAMED CURTIN AND PERROW. IN 1972
THE RESPONDENT ABOLISHED OR DOWNGRADED SOME OF ITS SUPERVISORY POSITIONS
BECAUSE THE NUMBER OF EMPLOYEES SUPERVISED DECLINED WHEN THE POSTAL
SERVICE TOOK OVER FROM GSA THE MAINTENANCE AND REPAIR OF POST OFFICES.
SOME SUPERVISORS WHOSE JOBS WERE ELIMINATED OR DOWNGRADED BUMPED
EMPLOYEES IN THE BUILDING CRAFTS. CURTIN WAS AN EMPLOYEE IN A CRAFT, A
PLASTERER. HE WORKED AT A POST OFFICE, AND WHEN POST OFFICE WORK WAS
LOST HE WAS MOVED TO 844 NORTH RUSH TO KEEP HIM WORKING. PLASTERERS DID
SOME PAINTING. ON AUGUST 4, 1973 HIS POSITION WAS ABOLISHED BECAUSE
THERE WAS NOT MUCH NEED FOR A PLASTERER IN THAT BUILDING. HE WAS
OFFERED A LOWER-GRADED JOB, REFUSED IT, AND RECEIVED $3,400 IN SEVERANCE
PAY. PERROW HAD NOT BEEN IN ACTIVE SERVICE SINCE JULY 1973. HE HAD AN
APPLICATION PENDING FOR DISABILITY RETIREMENT. AT THE TIME OF THE RIF
ON AUGUST 4, 1973 HE WAS OFFERED AND ACCEPTED A LABORER'S POSITION BUT
NEVER WORKED IN THAT POSITION BECAUSE OF DISABILITY. IN DECEMBER 1973
HIS APPLICATION FOR A DISABILITY PENSION WAS GRANTED.
BOTH PARTIES ASSUMED, APPARENTLY, THAT THE ONLY CONTRACTING OUT
DIRECTLY INVOLVED IN THIS CASE WAS THE DUSHAN CONTRACT AT 536 SOUTH
CLARK STREET. NO SUBSTANTIAL EVIDENCE WAS INTRODUCED CONCERNING
CONTRACTING OUT AT 814 NORTH RUSH STREET. THAT ASPECT OF THE COMPLAINT
SHOULD THEREFORE BE DISMISSED.
AS EXPLICATED ABOVE UNDER THE CAPTION "THE MOTION TO DISMISS THE
COMPLAINT", THE ISSUE BEFORE US IS NOT WHETHER THERE WAS A BREACH OF
CONTRACT BUT WHETHER THERE WAS A BREACH SO CLEAR THAT IT SHOWS AN
ATTEMPTED UNILATERAL REVISION OF THE CONTRACT BY THE RESPONDENT. I
CANNOT CONCLUDE THAT THERE WAS SUCH A BREACH.
THE RESPONDENT HAD NOT IN THE PAST NOTIFIED THE UNION WHEN IT HAD
CONTRACTED OUT PAINTING WORK INVOLVED IN REMODELING THE BUILDING, AND
THE UNION HAD NEVER BEFORE CLAIMED THAT SUCH ABSENCE OF NOTIFICATION WAS
A VIOLATION OF THE AGREEMENT. THE COMPLAINANT CONTENDS THAT THIS SHOWS
A PATTERN OF PERSISTENT VIOLATIONS. WHILE PLAUSIBLE, IT IS JUST AS
PLAUSIBLE THAT THE RESPONDENT REASONABLY BELIEVED, RIGHTLY OR WRONGLY,
THAT THE UNION AGREED NOTIFICATION WAS NOT REQUIRED IN SUCH CASES.
SIMILARLY, THE RESPONDENT HAD NOT IN THE PAST NOTIFIED THE UNION WHEN IT
CONTRACTED OUT PAINTING OF THE MAGNITUDE INVOLVED IN THE DUSHAN
CONTRACT, AND THE UNION HAD NEVER BEFORE CLAIMED SUCH ABSENCE OF
NOTIFICATION VIOLATED THE AGREEMENT. HERE AGAIN, THE UNION CONTENDS
THIS SHOWS A PATTERN OF PERSISTENT VIOLATIONS AMOUNTING TO A UNILATERAL
CHANGE. IT IS JUST AS PLAUSIBLE TO CONCLUDE THAT THE RESPONDENT
REASONABLY BELIEVED THAT THE UNION AGREED NOTIFICATION WAS NOT REQUIRED
IN SUCH SITUATIONS.
THERE ARE TWO BASIC ISSUES IN THIS DISPUTE. FIRST, WHAT DOES
"MINIMIZE DISPLACEMENT OF GSA EMPLOYEES" MEAN IN THE SECOND SENTENCE OF
SECTION 26.5 OF THE GENERAL AGREEMENT, AND IS IT VIOLATED WHEN ONE
EMPLOYEE, AT ANOTHER LOCATION, WAS DISPLACED? SECOND, WHAT IS "WORK
NORMALLY PERFORMED BY GSA EMPLOYEES" WITHIN THE MEANING OF THE THIRD
SENTENCE OF SECTION 26.5; DOES IT REFER TO THE TYPE OF PAINTING DONE OR
CAN PAINTING BE OUTSIDE THE MEANING OF THAT PHRASE BECAUSE OF THE VOLUME
INVOLVED? THESE ARE QUESTIONS ON WHICH REASONABLE PEOPLE CAN DIFFER.
THERE IS INSUFFICIENT EVIDENCE IN THE RECORD TO CONCLUDE THAT THE
RESPONDENT'S INTERPRETATION OF THE SECOND SENTENCE AND ITS APPLICATION
OF THE THIRD SENTENCE WITH RESPECT TO THE DUSHAN CONTRACT WERE NOT
SINCERE.
I DO NOT CONCLUDE THAT THERE WAS NOT A BREACH OF CONTRACT, BECAUSE
THAT IS NOT THE ISSUE BEFORE ME. I CONCLUDE ONLY THAT IF THERE WAS A
BREACH IT AROSE OUT OF A SIMPLE AND SINCERE DISAGREEMENT OVER THE PROPER
INTERPRETATION OF THE SECOND SENTENCE OF SECTION 26.5 OF THE GENERAL
AGREEMENT AND THE PROPER APPLICATION OF THE THIRD SENTENCE OF SECTION
26.5 TO THE DUSHAN CONTRACT. SUCH A BREACH, IF IT OCCURRED, WAS NOT A
VIOLATION OF SECTION 19(A) OF THE EXECUTIVE ORDER.
THIS MAKES IT UNNECESSARY TO CONSIDER WHETHER THE RESPONDENT'S
CONDUCT WAS PROTECTED, AS CONTENDED BY THE RESPONDENT, BY SECTION
12(B)(5) OF EXECUTIVE ORDER 11491.
I RECOMMEND:
1. THE RESPONDENT'S MOTION TO DISMISS COMPLAINT FOR LACK OF
JURISDICTION TO ENTERTAIN IT BE DENIED.
2. THE COMPLAINT BE DISMISSED BECAUSE THE COMPLAINANT HAS NOT
SUSTAINED THE BURDEN OR PROOF IMPOSED BY SECTION 203.14 OF THE
REGULATIONS.
DATED: APRIL 2, 1975
WASHINGTON, D.C.
/1/ THE RECORD BEFORE ME DOES NOT SHOW THAT THIS MOTION WAS ACTED ON.
/2/ EXHIBIT R1.
/3/ R1-A.
/4/ VETERANS ADMINISTRATION HOSPITAL, CHARLESTON, S. CAROLINA, A/SLMR
NO. 87, AT PAGE 5; NASA, KENNEDY SPACE CENTER, A/SLMR NO. 223; AT PAGE
3; VETERANS ADMINISTRATION CENTER, A/SLMR NO. 335; DEPARTMENT OF THE
AIR FORCE, BASE PROCUREMENT OFFICE, VANDENBERG AIR FORCE BASE, A/SLMR
NO. 485.
/5/ OTHER EXAMPLES WOULD BE A BREACH OF CONTRACT PROMPTED BY
ANTI-UNION MOTIVATION TO DISCOURAGE UNION MEMBERSHIP, OF WHICH THERE IS
NO INDICATION HERE, WHICH WOULD VIOLATE SECTION 19(A)(2); OR A BREACH
OF CONTRACT MOTIVATED BY CONSIDERATIONS IN VIOLATION OF SECTION
19(A)(4), OF WHICH, THERE IS ALSO NO INTIMATION IN THIS RECORD.
5 A/SLMR 527; P. 412; CASE NO. 50-11102(CA); JUNE 30, 1975.
DEPARTMENT OF THE ARMY,
HEADQUARTERS, UNITED STATES ARMY
ARMAMENT COMMAND,
ROCK ISLAND ARSENAL,
ROCK ISLAND, ILLINOIS
A/SLMR NO. 527
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-68 (COMPLAINANT)
ALLEGING THAT THE RESPONDENT ACTIVITY HAD VIOLATED SECTION 19(A)(6) OF
THE EXECUTIVE ORDER BY FAILING TO MEET AND CONFER PRIOR TO IMPLEMENTING
A DIRECTIVE FROM HIGHER AGENCY MANAGEMENT TO REVISE CERTAIN CAREER
APPRAISAL PRACTICES. ON APRIL 10, 1973, THE ARMY MATERIEL COMMAND
DIRECTED THE RESPONDENT, AND A NUMBER OF OTHER ACTIVITIES EMPLOYING
SCIENTISTS AND ENGINEERS, TO REVISE DOWNWARD THE NUMERICAL RATINGS OF
EMPLOYEE PERFORMANCE IN MOST FUTURE CAREER APPRAISALS IN ORDER THAT THE
VARYING CAPABILITIES OF THE EMPLOYEES WOULD BE MORE ACCURATELY
INDICATED. THEREAFTER, THE SCIENTISTS AND THE ENGINEERS OF THE
RESPONDENT RECEIVED NEW CAREER APPRAISALS WHICH REFLECTED THIS DOWNWARD
REVISION IN NUMERICAL RATINGS. ALTHOUGH THE PRESIDENT OF THE
COMPLAINANT READ A MEMORANDUM FROM THE RESPONDENT WHICH CONCERNED THE
REVISION AND WHICH HAD BEEN POSTED ON A BULLETIN BOARD ON AUGUST 20,
1973, THE RESPONDENT'S OFFICIALS DID NOT DISCUSS THE MATTER WITH THE
COMPLAINANT'S OFFICIALS UNTIL DECEMBER 7, 1973.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE DECISION CONCERNING
CAREER APPRAISALS WAS NOT SUBJECT TO BARGAINING UNDER EXECUTIVE ORDER
11491, AS AMENDED, INASMUCH AS THIS DECISION ISSUED BY THE HIGHER LEVEL
AUTHORITY REQUIRED THAT THE POLICY BE IMPLEMENTED BY THE MANAGEMENT OF
SEVERAL SUBORDINATE ELEMENTS, INCLUDING THE RESPONDENT, WHICH WERE
ENGAGED IN SIMILAR ACTIVITIES, AND THAT THE POLICY BE UNIFORMLY APPLIED
THROUGHOUT SUBORDINATE ELEMENTS. HOWEVER, THE ADMINISTRATIVE LAW JUDGE
FOUND THAT WHILE THERE WAS NO DUTY TO MEET AND CONFER REGARDING THE
POLICY SET FORTH IN THE HIGHER LEVEL DIRECTIVES, THE RESPONDENT VIOLATED
SECTION 19(A)(6) OF THE ORDER BY FAILING TO INFORM THE COMPLAINANT OF
THE CHANGE IN POLICY PRIOR TO ITS EFFECTUATION AND, THEREBY, FAILED TO
AFFORD THE COMPLAINANT A REASONABLE OPPORTUNITY TO MEET AND CONFER, TO
THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES TO BE
UTILIZED IN EFFECTUATING THE HIGHER LEVEL DECISION, AND ON THE IMPACT OF
THIS DECISION ON ADVERSELY AFFECTED EMPLOYEES.
ALTHOUGH THE ASSISTANT SECRETARY AGREED WITH THESE CONCLUSIONS, HE
NOTED THAT THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED REMEDY OF
RESCINDING ALL CAREER APPRAISALS ISSUED BY THE RESPONDENT PURSUANT TO
THE HIGHER AGENCY DECISION WAS NOT NECESSARY. IN THIS REGARD, THE
ASSISTANT SECRETARY NOTED THAT REPRESENTATIVES OF THE COMPLAINANT AND
THE RESPONDENT MET ON DECEMBER 7, 1973, CONCERNING THE POLICY ON CAREER
APPRAISALS, AND THAT THE UNFAIR LABOR PRACTICE COMPLAINT IN THIS MATTER
AND THE COMPLAINANT'S BRIEF TO THE ADMINISTRATIVE LAW JUDGE REQUESTED
ONLY THAT ALL CAREER APPRAISALS PREPARED PRIOR TO THIS MEETING BE
RESCINDED.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE RESPONDENT
CEASE AND DESIST FROM THE CONDUCT FOUND VIOLATIVE OF THE ORDER AND THAT
IT TAKE CERTAIN AFFIRMATIVE ACTIONS CONSISTENT WITH HIS DECISION,
INCLUDING THE RESCISSION OF ONLY THOSE CAREER APPRAISALS WHICH WERE
ISSUED BEFORE THE AFOREMENTIONED MEETING IN ACCORDANCE WITH THE HIGHER
AGENCY POLICY DIRECTIVES.
DEPARTMENT OF THE ARMY,
HEADQUARTERS, UNITED STATES ARMY
ARMAMENT COMMAND,
ROCK ISLAND ARSENAL
ROCK ISLAND, ILLINOIS
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R7-68
ON FEBRUARY 10, 1975, ADMINISTRATIVE LAW JUDGE GORDON J. MYATT ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR LABOR
PRACTICES AND RECOMMENDING THAT IT TAKE CERTAIN AFFIRMATIVE ACTION AS
SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER. THEREAFTER, THE RESPONDENT AND THE COMPLAINANT
FILED EXCEPTIONS WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER. /1/
THE ASSISTANT SECRETARY 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
EXCEPTIONS FILED BY THE PARTIES, I HEREBY ADOPT THE FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE, EXCEPT
AS MODIFIED BELOW.
THE ADMINISTRATIVE LAW JUDGE FOUND, AND I CONCUR, THAT THE RESPONDENT
ACTIVITY WAS NOT OBLIGATED TO MEET AND CONFER WITH THE COMPLAINANT IN
REGARD TO THE DECISION OF HIGHER LEVEL AUTHORITY TO REDUCE THE NUMERICAL
CODE LEVELS OF CAREER APPRAISALS, INASMUCH AS THE DIRECTIVES OF THE
HIGHER LEVEL AUTHORITY REQUIRED THAT THE POLICY BE IMPLEMENTED BY THE
MANAGEMENT OF SEVERAL SUBORDINATE ELEMENTS, INCLUDING THE RESPONDENT,
WHICH WERE ENGAGED IN SIMILAR ACTIVITIES, AND THAT THE POLICY BE
UNIFORMLY APPLIED THROUGHOUT THESE SUBORDINATE ELEMENTS. /2/ FURTHER,
THE ADMINISTRATIVE LAW JUDGE FOUND THAT WHILE THERE WAS NO DUTY TO MEET
AND CONFER REGARDING THE POLICY SET FORTH IN THE HIGHER LEVEL
DIRECTIVES, THE RESPONDENT VIOLATED SECTION 19(A)(6) OF THE ORDER BY
FAILING TO INFORM THE COMPLAINANT OF THE CHANGE IN POLICY PRIOR TO ITS
EFFECTUATION AND, THEREBY, FAILED TO AFFORD THE COMPLAINANT A REASONABLE
OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON THE PROCEDURES TO BE UTILIZED IN EFFECTUATING THE HIGHER
LEVEL DECISION, AND ON THE IMPACT OF THIS DECISION ON ADVERSELY AFFECTED
EMPLOYEES.
WHILE I AGREE WITH THE ABOVE FINDINGS OF THE ADMINISTRATIVE LAW
JUDGE, I DISAGREE WITH A PORTION OF HIS RECOMMENDED REMEDIAL ORDER.
THUS, I FIND THAT UNDER THE PARTICULAR CIRCUMSTANCES HEREIN, IT IS NOT
NECESSARY TO ORDER THE RECISSION OF ALL CAREER APPRAISALS ISSUED BY THE
RESPONDENT IN IMPLEMENTATION OF THE POLICY ESTABLISHED BY HIGHER LEVEL
AUTHORITY, AS RECOMMENDED BY THE ADMINISTRATIVE LAW JUDGE. IN THIS
REGARD, IT WAS NOTED THAT THE RECORD INDICATES THAT REPRESENTATIVES OF
THE COMPLAINANT AND THE RESPONDENT MET ON DECEMBER 7, 1973, CONCERNING
THE POLICY ON CAREER APPRAISALS AND THAT, BOTH THE UNFAIR LABOR PRACTICE
COMPLAINT IN THIS MATTER AND THE COMPLAINANT'S BRIEF TO THE
ADMINISTRATIVE LAW JUDGE REQUEST ONLY THAT APPRAISALS ISSUED PRIOR TO
THAT MEETING BE RESCINDED. UNDER THESE CIRCUMSTANCES, I FIND IT
APPROPRIATE TO LIMIT THE REMEDIAL ORDER IN THIS RESPECT TO A RESCISSION
OF THOSE CAREER APPRAISALS WHICH WERE ISSUED PRIOR TO THE PARTIES'
MEETING OF DECEMBER 7, 1973, IN ACCORDANCE WITH THE HIGHER AGENCY POLICY
DIRECTIVES.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE HEADQUARTERS,
UNITED STATES ARMY ARMAMENT COMMAND, ROCK ISLAND ARSENAL, ROCK ISLAND
ILLINOIS, SHALL:
1. CEASE AND DESIST FROM:
UTILIZING OR GIVING EFFECT TO ANY CAREER APPRAISALS OF ENGINEERS AND
SCIENTISTS REPRESENTED EXCLUSIVELY BY THE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R7-68, ISSUED PRIOR TO DECEMBER 7, 1973,
PURSUANT TO THE APRIL 10, 1973, DIRECTIVE OF THE ARMY MATERIEL COMMAND,
AS AUGMENTED BY THE DIRECTIVES ISSUED MAY 4 AND AUGUST 20, 1973, BY THE
U.S. ARMY ARMAMENT COMMAND.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) NOTIFY THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
R7-68, OF ANY DIRECTIVES OR INSTRUCTIONS RECEIVED FROM A HIGHER LEVEL
COMMAND ON THE APPLICATION OF CAREER APPRAISAL CRITERIA FOR ENGINEERS
AND SCIENTISTS AND, UPON REQUEST, MEET AND CONFER IN GOOD FAITH, TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES AND THE
METHODS WHICH MANAGEMENT WILL OBSERVE IN IMPLEMENTING SUCH DIRECTIVES OR
INST AND ON THE IMPACT WHICH SUCH DIRECTIVES OR INSTRUCTIONS WILL HAVE
ON ADVERSELY AFFECTED EMPLOYEES.
(B) RESCIND ALL CAREER APPRAISALS FOR ENGINEERS AND SCIENTISTS WHICH
WERE ISSUED PRIOR TO DECEMBER 7, 1973, PURSUANT TO THE APRIL 10, 1973,
DIRECTIVE OF THE ARMY MATERIEL COMMAND, AS AUGMENTED BY THE DIRECTIVES
ISSUED MAY 4, AND AUGUST 20, 1973, BY THE U.S. ARMY ARMAMENT COMMAND.
(C) POST AT ITS FACILITY AT THE ROCK ISLAND ARSENAL, ROCK ISLAND,
ILLINOIS, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE
FURNISHED BY THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT
RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHOULD BE SIGNED BY THE
COMMANDER OF THE HEADQUARTERS, UNITED STATES ARMY ARMAMENT COMMAND, ROCK
ISLAND ARSENAL, ROCK ISLAND, ILLINOIS, 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. REASONABLE STEPS SHALL BE TAKEN TO
INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(D) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
JUNE 30, 1975
/1/ THE DEPARTMENT OF THE ARMY, OFFICE OF THE DEPUTY CHIEF OF STAFF
FOR PERSONNEL, WASHINGTON, D.C., FILED ADDITIONAL EXCEPTIONS WHICH WERE
UNTIMELY AND, THEREFORE, NOT CONSIDERED.
/2/ CF. UNITED FEDERATION OF COLLEGE TEACHERS, LOCAL 1460 AND
MERCHANT MARINE ACADEMY, FLRC NO. 71A-15.
WE WILL NOT UTILIZE OR GIVE EFFECT TO ANY CAREER APPRAISALS OF
ENGINEER AND SCIENTIST EMPLOYEES REPRESENTED EXCLUSIVELY BY THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-68, ISSUED PRIOR TO
DECEMBER 7, 1973, PURSUANT TO THE APRIL 10, 1973, DIRECTIVE OF THE ARMY
MATERIEL COMMAND, AS AUGMENTED BY THE DIRECTIVES ISSUED MAY 4 AND AUGUST
20, 1973, BY THE U.S. ARMY ARMAMENT COMMAND.
WE WILL NOTIFY THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
LOCAL R7-68, OF ANY DIRECTIVES OR INSTRUCTIONS RECEIVED FROM A HIGHER
LEVEL COMMAND ON THE APPLICATION OF CAREER APPRAISAL CRITERIA FOR
ENGINEERS AND SCIENTISTS AND, UPON REQUEST, MEET AND CONFER IN GOOD
FAITH, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE
PROCEDURES AND METHODS WHICH MANAGEMENT WILL OBSERVE IN IMPLEMENTING
SUCH DIRECTIVES OR INSTRUCTIONS AND ON THE IMPACT SUCH DIRECTIVES OR
INSTRUCTIONS WILL HAVE ON ADVERSELY AFFECTED EMPLOYEES.
WE WILL RESCIND ALL CAREER APPRAISALS FOR ENGINEERS AND SCIENTISTS
WHICH WERE ISSUED PRIOR TO DECEMBER 7, 1973, PURSUANT TO THE APRIL 10,
1973, DIRECTIVE OF THE ARMY MATERIEL COMMAND AS AUGMENTED BY THE
DIRECTIVES ISSUED MAY 4 AND AUGUST 20, 1973, BY THE U.S. ARMY ARMAMENT
COMMAND.
DATED . . . BY . . .
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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR WHOSE ADDRESS IS: ROOM 1033B, FEDERAL OFFICE BUILDING, 230 SOUTH
DEARBORN STREET, CHICAGO, ILLINOIS 60604.
IN THE MATTER OF:
DEPARTMENT OF THE ARMY,
UNITED STATES ARMY ARMAMENT COMMAND,
ROCK ISLAND ARSENAL,
ROCK ISLAND, ILLINOIS
AND
LOCAL R7-68, NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
APPEARANCES:
JOHN A. ROCK
MOLINE, ILLINOIS
PAUL J. HAYES
BELLVILLE, ILLINOIS
BEFORE: GORDON J. MYATT
ADMINISTRATIVE LAW JUDGE
PURSUANT TO A COMPLAINT FILED ON FEBRUARY 21, 1974, UNDER EXECUTIVE
ORDER 11491, AS AMENDED, BY LOCAL R7-68, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES (HEREINAFTER CALLED THE UNION) AGAINST DEPARTMENT
OF THE ARMY, U.S. ARMAMENT COMMAND, ROCK ISLAND ARSENAL, (HEREINAFTER
CALLED THE RESPONDENT ACTIVITY), A NOTICE OF HEARING ON COMPLAINT WAS
ISSUED ON MAY 9, 1974. THE COMPLAINT ALLEGED, AMONG OTHER THINGS, THAT
THE RESPONDENT ACTIVITY VIOLATED SECTION 19(A)(6) OF THE EXECUTIVE ORDER
A HEARING WAS HELD IN THIS MATTER ON JULY 18, 1974, IN MOLINE,
ILLINOIS. ALL PARTIES WERE REPRESENTED AND AFFORDED FULL OPPORTUNITY TO
BE HEARD AND TO INTRODUCE RELEVANT EVIDENCE AND TESTIMONY OF THE ISSUES
INVOLVED. ORAL ARGUMENT WAS MADE AT THE CONCLUSION OF THE HEARING ON
BEHALF OF THE RESPONDENT ACTIVITY AND A SUBSEQUENT BRIEF WAS FILED BY
THE COMPLAINANT.
ON THE ENTIRE RECORD HEARING, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND UPON THE RELEVANT EVIDENCE ADDUCED AT
THE HEARING, I MAKE THE FOLLOWING:
THE RESPONDENT ACTIVITY IS A SUBORDINATE ELEMENT OF THE U.S.
ARMAMENT COMMAND (ARMCOM) WHICH IN TURN IS A SUBORDINATE COMMAND OF THE
U.S. ARMY MATERIEL COMMAND (AMC). THE ARMY MATERIEL COMMAND HAS THE
RESPONSIBILITY FOR ACQUISITION AND SUPPORT OF ALL ARMY MATERIEL. THE
RESPONDENT ACTIVITY IS DIVIDED INTO FOUR OPERATING ELEMENTS, ONE OF
WHICH IS THE RODMAN LABORATORY WHERE THE ENGINEERS AND SCIENTISTS
INVOLVED IN THIS MATTER ARE EMPLOYED. RODMAN LABORATORY HAS
APPROXIMATELY 750 EMPLOYEES, 50 PERCENT OF WHICH ARE CLASSIFIED AS
ENGINEERS AND SCIENTISTS. THE RESPONDENT ACTIVITY PARALLELS FOUR OTHER
SIMILAR ACTIVITIES UNDER ARMCOM. /1/ RODMAN LABORATORY ITSELF IS
SUBDIVIDED INTO FIVE OPERATING DIRECTORATES AND A PLANNING AND CONTROL
OFFICE.
THE UNION HEREIN WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF THE
EMPLOYEES IN THE FOLLOWING UNIT ON APRIL 28, 1972:
ALL NON-SUPERVISORY, PROFESSIONAL EMPLOYEES, LOCATED AT THE
HEADQUARTERS, U.S. ARMY WEAPONS
COMMAND, ROCK ISLAND, ILLINOIS (EXCLUDING) MANAGEMENT OFFICIALS,
EMPLOYEES ENGAGED IN FEDERAL
WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, SUPERVISORS, GUARDS,
NON-PROFESSIONAL GS
EMPLOYEES AND NG EMPLOYEES.
THERE IS NO EVIDENCE ON THIS RECORD THAT AT THE TIME OF THE ALLEGED
UNLAWFUL CONDUCT, THE UNION AND THE RESPONDENT ACTIVITY HAD NEGOTIATED A
COLLECTIVE-BARGAINING AGREEMENT.
ON APRIL 10, 1973, DR. R. B. DILLAWAY, FUNCTIONAL CHIEF'S
REPRESENTATIVE FOR ENGINEERS AND SCIENTISTS, ISSUED A MEMORANDUM
REGARDING CAREER APPRAISALS. /2/ THE MEMO EXPRESSED THE CONCERN OF THE
ENGINEER AND SCIENTIST CAREER PLANNING BOARD (DEPARTMENT OF THE ARMY)
OVER THE FAILURE OF THE CURRENT CAREER APPRAISAL SYSTEM TO PROVIDE AN
EFFECTIVE MEANS FOR IDENTIFYING POTENTIAL CANDIDATES, AND TO
DIFFERENTIATE BETWEEN THEIR CAPABILITIES FOR OPENINGS IN THE E&S CAREER
FIELD. ACCORDING TO THE MEMO, THE PRESENT RATING SYSTEM (EMPLOYEE
CAREER APPRAISAL, DD FORM 1559) HAD DETERIORATED TO THE POINT WHERE THE
AVERAGE OF THE RATINGS ASSIGNED TO THE SEVEN ELEMENTS EVALUATED WAS VERY
CLOSE TO THE NUMERICAL RATING OF FOUR; WHICH WAS THE HIGHEST RATING AN
EMPLOYEE COULD RECEIVE. /3/ THE MEMO DIRECTED THAT EFFECTIVE MAY 1,
1973-- THE PERIOD WHEN THE RATINGS OF EMPLOYEES AT THE GS-15 LEVEL WOULD
COMMENCE-- ALL SUPERVISORS RATING AND REVIEWING ENGINEERS AND SCIENTISTS
WOULD UNDERTAKE TO RATE THEIR PERSONNEL IN A REALISTIC FASHION BASED ON
THE GUIDANCE SET OUT IN CIVILIAN PERSONNEL REGULATION (CPR) 950-1. THIS
REGULATION RELATED TO "CAREER MANAGEMENT BASIC POLICIES AND
REQUIREMENTS." ATTENTION WAS DRAWN TO THE PORTION OF CPR 950-1 WHICH
STATED THAT "AVERAGE, NUMERICAL CODE 2, IS USED WHEN THE EMPLOYEE
POTENTIAL IS EQUAL TO THAT NORMALLY EXPECTED FOR A PERSON AT HIS GRADE."
THE MEMO FURTHER DIRECTED THE RATING SUPERVISORS TO ENFORCE THE
REGULATION IMMEDIATELY, AND THAT IT WAS EXPECTED THAT THE AVERAGE FOR
THE RATED EMPLOYEES WOULD MOVE "RECOGNIZABLY CLOSER TO THE STATED
AVERAGE BY THE NEXT REPORTING PERIOD."
IN A RECOGNITION OF ANTICIPATED CONCERN AMONG EMPLOYEES BECAUSE OF
THE DIRECTED CHANGE IN THE APPRAISAL APPLICATION, THE DILLAWAY MEMO
CONTAINED THE FOLLOWING PARAGRAPH:
WHILE I RECOGNIZE THAT THIS MAY CREATE CONCERN AMONG EMPLOYEES THAT
THEY WILL BE ADVERSELY
AFFECTED BY THIS CHANGE WHEN IT IS NOT CARRIED OUT AT THE SAME TIME
IN OTHER DEPARTMENT OF THE
ARMY CAREER FIELDS, I HAVE SATISFIED MYSELF THAT AS LONG AS THIS
POLICY IS IMPLEMENTED
THROUGHOUT OUR CAREER FIELD THAT IT SHOULD NOT ADVERSELY AFFECT ANY
EMPLOYEE AND IT WILL
CERTAINLY AID IN RECOGNIZING THOSE EMPLOYEES WHO ARE TRULY
OUTSTANDING, CAPABLE PERSONNEL.
ON MAY 4, 1973, J. A. BRINKMAN, DEPUTY DIRECTOR FOR RESEARCH AND
DEVELOPMENT OF ARMCOM AND THE CAREER PROGRAM MANAGER FOR ENGINEERS AND
SCIENTISTS OF ARMCOM, ISSUED A MEMO ENCLOSING AND REFERRING TO THE
DILLWAY MEMO. THIS MEMO WAS DISTRIBUTED TO ALL SUBORDINATE ELEMENTS
UNDER ARMCOM EMPLOYING ENGINEERS AND SCIENTISTS. THE BRINKMAN MEMO
RESTATED THE DIRECTIVES CONTAINED IN THE DILLAWAY MEMO, AND EMPHASIZED
THAT THE PURPOSE OF CAREER APPRAISAL WERE "TO PROVIDE AN EVALUATION OF
AN EMPLOYEES POTENTIAL FOR FUTURE DEVELOPMENT AND PROGRESSION." THE
BRINKMAN MEMO DIRECTED THAT THE STATISTICS OF THE RATING LEVEL
DISTRIBUTION BE PROVIDED ON A QUARTERLY BASIS, AND THAT IT WAS EXPECTED
THAT "THE AVERAGE FOR ENGINEERS/SCIENTISTS, NOT ONLY WITHIN WECOM
(WEAPONS COMMAND) BUT THROUGHOUT ARMY, WILL NOT MOVE RECOGNIZABLY CLOSER
TO THE STATED AVERAGE."
THE MEMOS WERE RECEIVED BY THE RESPONDENT ACTIVITY APPROXIMATELY ON
MAY 10, 1973. DR. ROYCE BECKETT, DIRECTOR OF RODMAN LABORATORY AND
CAREER MANAGER OF ENGINEER AND SCIENTIST PERSONNEL FOR THE RESPONDENT
ACTIVITY TESTIFIED THAT WHEN HE RECEIVED THE DILLAWAY AND BRINKMAN
MEMOS, HE DISCUSSED THEIR CONTENTS WITH HIS SUBORDINATE DIRECTORATE
CHIEFS AT THEIR WEEKLY STAFF MEETING. ACCORDING TO BECKETT, HE
INSTRUCTED THE DIRECTORATE CHIEFS TO ADVISE THEIR SUPERVISORS OF THE
MEMOS AND THEY IN TURN WERE TO INFORM THE EMPLOYEES INVOLVED. BECKETT
ALSO INSTRUCTED HIS SECRETARY TO POST COPIES OF THE MEMOS ON THE
BULLETIN BOARD LOCATED IMMEDIATELY OUTSIDE HIS OFFICE NEAR THE MAIN
ENTRANCE TO THE BUILDING. /4/ THE UNDISPUTED TESTIMONY INDICATES THAT
THE MEMOS WERE POSTED AT LEAST BY THE 30TH OF MAY AND THAT THEY REMAINED
POSTED FOR SEVERAL DAYS. /5/ BECKETT ACKNOWLEDGED, HOWEVER, THAT IT
NEVER OCCURRED TO HIM TO ADVISE OR MEET WITH THE OFFICIALS OF THE UNION
REGARDING THE DIRECTIVES CONTAINED IN THE MEMORANDUM. BECKETT STATED
THAT HE FELT HE HAD NO DISCRETION IN IMPLEMENTING THE POLICY OF THE
DIRECTIVES.
ON AUGUST 20, 1973, BECKMAN ISSUED ANOTHER MEMORANDUM REFERRING TO
THE PRIOR MEMORANDA CITED HEREIN, AND SETTING FORTH THE RESULTS OF THE
QUARTERLY REPORT ON THE RATING REDUCTIONS FOR THE EMPLOYEES AT THE GS-15
GRADE LEVELS. THE SECOND BECKMAN MEMORANDUM ON THIS TOPIC CONTAINED THE
FOLLOWING STATEMENT:
BASED ON THE INITIAL REPORT, ONLY A TOKEN EFFORT HAS BEEN MADE IN THE
DOWNWARD REVISION OF
EMPLOYEE NUMERICAL CODE RATINGS. EVERY EFFORT WILL BE MADE BY ALL
RATING SUPERVISORS TO APPLY
REGULATORY NUMERICAL CODE VALUES IN EVALUATING THEIR EMPLOYEES'
CAREER
POTENTIAL. FURTHERMORE, THE GOAL WILL BE FOR AVERAGES OF ALL GRADES
TO BE WITHIN THE
REALISTIC RATING AVERAGE OF 2.0-3.0 DURING THE PRESENT FISCAL YEAR.
THIS DOCUMENT REMINDED THE RATING OFFICIALS THAT THE NEXT REPORT WAS
DUE OCTOBER 1, 1973, AND WOULD INCLUDE RATINGS OF GRADES GS-10 AND
BELOW, AND GRADE GS-11.
THIS MEMO WAS ALSO POSTED ON THE BULLETIN BOARD BY MANAGEMENT
OFFICIALS AND WAS SUBSEQUENTLY SEEN BY JOHN FURMAN, PRESIDENT OF THE
UNION. FURMAN TESTIFIED THAT UNTIL HE SAW THE AUGUST 20 MEMO, HE HAD
NOT BEEN MADE AWARE OF THE INITIAL DILLAWAY AND BECKMAN MEMOS REGARDING
CAREER APPRAISALS; EITHER IN AN OFFICIAL OR UNOFFICIAL CAPACITY.
HAVING SEEN THE DOCUMENT OF AUGUST 20, FURMAN MADE NO EFFORT TO CONTACT
THE MANAGEMENT OFFICIALS REGARDING THE REDUCTION IN THE RATINGS OF THE
CAREER APPRAISALS. HE TESTIFIED THAT HE WAITED TO SEE IF MANAGEMENT
WOULD CONTACT HIM, AS THE CHIEF REPRESENTATIVE OF THE UNION.
IN THE INTERIM, ONGOING APPRAISALS OF THE ENGINEER AND SCIENTIST
EMPLOYEES WERE BEING EFFECTUATED BY THE OFFICIALS OF THE RESPONDENT
ACTIVITY. IT WAS THE PRACTICE TO RATE THE EMPLOYEES IN GROUPINGS BY
GRADE LEVELS. THEREFORE, THE INITIAL APPRAISALS IMMEDIATELY AFTER THE
ISSUANCE OF THE DILLAWAY AND BRINKMAN MEMORANDA ONLY INVOLVED EMPLOYEES
AT GRADE LEVEL GS-15. APPRAISALS OF OTHER EMPLOYEES AT LOWER GRADE
LEVELS WERE MADE AT DIFFERENT PERIODS OF TIME PRESCRIBED BY INTERNAL
REGULATIONS.
ON NOVEMBER 20, 1973, THE UNION FILED CHARGES WITH THE RESPONDENT
ACTIVITY ALLEGING VIOLATION OF SECTION 19 OF THE EXECUTIVE ORDER
REGARDING THE DOWNWARD REVISION OF THE CAREER APPRAISALS. BECKETT
TESTIFIED THAT RECEIPT OF THE CHARGES WAS THE FIRST KNOWLEDGE HE HAD OF
ANY DISSATISFACTION ON THE PART OF THE UNION WITH THE IMPLEMENTATION OF
THE DIRECTIVES REGARDING THE APPRAISAL RATINGS. REPRESENTATIVES OF THE
UNION AND THE RESPONDENT ACTIVITY MET ON DECEMBER 7, 1973, AND AS A
RESULT, BECKETT MET WITH EMPLOYEES OF EACH SUBORDINATE DIRECTORATE OF
THE LABORATORY TO EXPLAIN THE DILLAWAY-BECKMAN DIRECTIVES, AND HOW
MANAGEMENT WAS SEEKING TO IMPLEMENT IT. THESE MEETINGS TOOK PLACE
BETWEEN DECEMBER 7, 1973 AND JANUARY 10 OF THE FOLLOWING YEAR. IN
ADDITION, MANAGEMENT OFFICIALS REVIEWED AND RECALLED ALL OF THE GS-12
APPRAISALS FOR RECONSIDERATION. BECKETT TESTIFIED THIS WAS DONE TO
INSURE THAT ALL FIVE OPERATING DIRECTORATES WERE IMPLEMENTING THE
DILLAWAY-BECKMAN DIRECTIVES IN AN EQUITABLE MANNER THROUGHOUT THE
LABORATORY. THE MANAGEMENT OFFICIALS WERE OF THE OPINION, FOLLOWING A
MEETING WITH THE UNION OFFICIALS, THAT NO INEQUITIES EXISTED IN THE
APPRAISALS OF EMPLOYEES BELOW THE LEVEL OF GS-12. ACCORDINGLY, THESE
APPRAISALS WERE NOT RECALLED. THE UNION, HOWEVER, INSISTED THAT ALL
APPRAISALS ISSUED UNDER THE GUIDANCE OF THE DILLAWAY-BECKMAN DIRECTIVES
BE RESCINDED, AND ALL APPRAISALS IN PROCESS BE HELD IN ABEYANCE. THE
UNION ALSO INSISTED THAT MANAGEMENT MEET AND CONFER REGARDING THE
DOWNWARD REVISION OF THE NUMERICAL CODE LEVELS APPLIED TO THE
APPRAISALS.
SEVERAL EMPLOYEES TESTIFIED AS TO HOW THEY WERE PERSONALLY AFFECTED
BY THE EMPHASIS ON THE DOWNWARD REVISION OF THE NUMERICAL CODE RATINGS
IN THEIR CAREER APPRAISALS. THOMAS FRANDSEN, A GS-11 ENGINEER ASSIGNED
TO THE AIRCRAFT AND AIR DEFENSE WEAPONS SYSTEMS DIRECTORATE, STATED HE
RECEIVED HIS APPRAISAL ON OCTOBER 26, 1973. SUBSEQUENTLY, ON JANUARY
10, 1974, HE RECEIVED ANOTHER APPRAISAL FOR THE SAME PERIOD, BUT THE
NUMERICAL RATING WAS HIGHER. FRANDSEN HAD NO KNOWLEDGE OF THE REASON
WHY HIS RATING HAD BEEN INCREASED.
JACK MANATA, A GS-12 ENGINEER IN THE RESEARCH DIRECTORATE, TESTIFIED
HE RECEIVED HIS RATING ON NOVEMBER 19, 1973. /6/ MANATA'S RATING SHOWED
A DECREASE IN HIS NUMERICAL AVERAGE FROM 3.2 TO A RATING OF 2.4. WHEN
MANATA QUESTIONED HIS SUPERVISOR ABOUT THE DECREASE, HE WAS INFORMED
THAT IT WAS A RESULT OF THE DILLAWAY DIRECTIVE TO REDUCE ALL NUMERICAL
CODE RATINGS OF THE CAREER APPRAISALS. MANATA FILED A FORMAL GRIEVANCE
REGARDING THIS MATTER, AND ON DECEMBER 20, 1973, WAS GIVEN A NEW
APPRAISAL COVERING THE SAME PERIOD. HIS RATING WAS INCREASED TO 2.85.
CHARLES SCHERTZ, A CO-WORKER OF MANATA, ALSO RECEIVED HIS APPRAISAL
AT APPROXIMATELY THE SAME TIME. SCHERTZ'S APPRAISAL INDICATED A
REDUCTION FROM 3.7 TO 2.4. MANATA REPRESENTED SCHERTZ IN FORMAL
GRIEVANCE, AND THIS EMPLOYEE'S APPRAISAL WAS SUBSEQUENTLY REEVALUATED
AND RAISED TO THE NUMERICAL RATING OF 2.71.
EMPLOYEE DENNIS BEUG, A GS-12 ENGINEER IN THE AIRCRAFT AND AIR
DEFENSE SYSTEMS DIRECTORATE, TESTIFIED THAT HE RECEIVED HIS APPRAISAL AS
GS-11 IN SEPTEMBER 1973. WHEN HE QUESTIONED THAT HIS NUMERICAL RATING
WAS BELOW THAT OF THE PRIOR YEAR, HE WAS INFORMED BY HIS SUPERVISOR OF
THE REQUIREMENTS OF THE DILLAWAY DIRECTIVE. BEUG REFUSED TO SIGN HIS
APPRAISAL UNTIL HIS SUPERVISOR SHOWED HIM A COPY OF THE DIRECTIVE. HE
SUBSEQUENTLY SIGNED THE DOCUMENT, BUT ONLY AFTER A NOTATION WAS PUT ON
THE APPRAISAL FORM STATING IT DID NOT INDICATE A "DEGRADATION OF THE
QUALITY OF THE EMPLOYEE'S WORK, BUT WAS TO COMPLY WITH THE DIRECTIVE TO
MAINTAIN AN AVERAGE OF 2 AS AN ESTABLISHED AVERAGE IN THE APPRAISALS."
BEUG WAS SUBSEQUENTLY PROMOTED TO A GS-12 ON JUNE 30, 1973.
RICHARD MAGUIRE, DEPUTY DIRECTOR OF THE APPLICATION ENGINEERING
DIRECTORATE, TESTIFIED HE HAD SERVED ON RATING PANELS AND ALSO AS A
SINGLE RATER OR EMPLOYEE CANDIDATES FOR PROMOTION ACTIONS. ACCORDING TO
MAGUIRE, ONE OF THE FACTORS CONSIDERED IN SCREENING OUT CANDIDATES IS
THE NUMERICAL CODE LEVEL RATING ON THEIR CAREER APPRAISALS FOR THE
LATEST RATING PERIOD. WHILE MAGUIRE INDICATED IT WAS NOT THE ONLY
FACTOR TO BE CONSIDERED, THE NUMERICAL RATING WAS PUT ON THE RATING
SHEET IN ORDER TO ASSIST IN REFINING THE LIST OF THE CANDIDATES FOR
PROMOTION.
THE UNION CONTENDS THE DILLAWAY-BECKMAN DIRECTIVES CONSTITUTED A NEW
GUIDANCE, WHICH HAD A DEFINITE IMPACT ON THE PROMOTION POTENTIAL AND
OVERALL FUTURE OF THE ENGINEER AND SCIENTIST EMPLOYEES IN THE BARGAINING
UNIT. BECAUSE THE MATTER AFFECTED PERSONNEL POLICY AND PRACTICE AS WELL
AS WORKING CONDITIONS OF THE EMPLOYEES, THE UNION CONTENDS THE
RESPONDENT ACTIVITY WAS PLACED UNDER A DUTY BY SECTION 11(A) OF THE
EXECUTIVE ORDER TO MEET AND CONFER WITH IT AS THE EXCLUSIVE
REPRESENTATIVE PRIOR TO THE IMPLEMENTATION OF THE DIRECTIVES. IT
FOLLOWS FROM THIS PREMISE THAT THE FAILURE TO DO SO IS CONTENDED TO BE A
VIOLATION OF SECTION 19(A)(6) OF THE ORDER.
THE RESPONDENT ACTIVITY ACKNOWLEDGED THAT IT DID NOT CONTACT THE
REPRESENTATIVES OF THE UNION REGARDING THE DIRECTIVES, BUT STATED THAT
IT NEVER REFUSED TO CONSULT AND CONFER WITH THE UNION ONCE A DEMAND WAS
MADE. IT IS THE CONTENTION OF THE RESPONDENT ACTIVITY THAT THE UNION
HAD KNOWLEDGE OF THE DIRECTIVES, AT LEAST BY AUGUST 20, 1973, BUT NEVER
REQUESTED A MEETING WITH MANAGEMENT UNTIL CHARGES WERE FILED ON NOVEMBER
20, 1973. THEREFORE, THE RESPONDENT ACTIVITY ARGUES THE BURDEN WAS ON
THE UNION, ONCE IT ACQUIRED KNOWLEDGE TO REQUEST A MEETING WITH
MANAGEMENT, AND THE FAILURE TO DO SO PRECLUDES THE FINDING OF A
VIOLATION OF SECTION 19(A)(6)
SECTION 11(A) OF THE EXECUTIVE ORDER PROVIDES, IN PERTINENT PART:
AN AGENCY AND A LABOR ORGANIZATION THAT HAS BEEN ACCORDED EXCLUSIVE
RECOGNITION, THROUGH
APPROPRIATE REPRESENTATIVES, SHALL MEET AT REASONABLE TIMES AND
CONFER IN GOOD FAITH WITH
RESPECT TO PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING
WORKING CONDITIONS, SO FAR
AS MAY BE APPROPRIATE UNDER APPLICABLE LAWS AND REGULATIONS,
INCLUDING POLICIES SET FORTH IN
THE FEDERAL PERSONNEL MANUAL, PUBLISHED AGENCY POLICIES AND
REGULATIONS, A NATIONAL OR OTHER
CONTROLLING AGREEMENT AT A HIGHER LEVEL IN THE AGENCY, AND THIS
ORDER. . . .
THE INITIAL QUESTION TO BE ADDRESSED HERE IS WHETHER THE DILLAWAY
DIRECTIVE ITSELF, ISSUED BY A HIGHER ECHELON IN THE AGENCY, PROPERLY
FALLS WITHIN THE SCOPE OF BARGAINING AT THE LOCAL LEVEL. THE DECISION
PRECEDENTS CLEARLY INDICATE, IN THE CIRCUMSTANCES PRESENTED HERE, THE
RESPONDENT ACTIVITY HAD NO OBLIGATION UNDER THE EXECUTIVE ORDER TO
BARGAIN WITH THE UNION REGARDING THE POLICY DECISION CONTAINED IN THE
DIRECTIVE; I.E., THAT THE NUMERICAL GRADE LEVELS OF THE CAREER
APPRAISALS MUST BE REDUCED IN ORDER TO ACHIEVE A MORE REALISTIC AVERAGE
OF "2." /7/ THE POLICY ESTABLISHED BY THE DILLAWAY MEMORANDUM, AS
AUGMENTED BY THE BECKMAN MEMORANDUM, WAS DIRECTED TO THE MANAGEMENT OF
THE SEVERAL SUBORDINATE ELEMENTS OF THE COMMAND ENGAGED IN SIMILAR
ACTIVITIES AND EMPLOYING THE CLASSES OF EMPLOYEES-- ENGINEERS AND
SCIENTISTS-- AFFECTED THEREBY. IT CLEARLY DEALT WITH THE ADMINISTRATION
OF A SUBJECT MATTER COMMON TO THE SUBORDINATE ACTIVITIES AND WAS TO BE
UNIFORMLY APPLIED THROUGHOUT EACH SUBORDINATE LEVEL.
ON THIS BASIS, I FIND AND CONCLUDE THAT THE RESPONDENT ACTIVITY WAS
UNDER NO DUTY TO MEET AND CONFER WITH THE UNION REGARDING THE DECISION
OF THE HIGHER LEVEL AUTHORITY TO REDUCE THE NUMERICAL CODE LEVELS OF THE
CAREER APPRAISALS FOR THE EMPLOYEES IN THE BARGAINING UNIT. IN SO
FINDING I AM NOT UNMINDFUL OF THE DECISION OF THE ASSISTANT SECRETARY IN
DEPARTMENT OF NAVY SUPERVISOR OF SHIPBUILDING, CONVERSION AND REPAIR,
PASCAGOULA, MISSISSIPPI, A/SLMR NO. 390 (MAY 15, 1974). THERE A HIGHER
LEVEL ECHELON, NAVY SHIP SYSTEMS COMMAND (NAVSHIPS) ISSUED INSTRUCTIONS
REGARDING MOBILITY REQUIREMENTS OF ALL OF THE SUBORDINATE ACTIVITIES OF
NAVSHIPS WITH RESPECT TO NEW AND VACANT POSITIONS AND POSITIONS IN WHICH
INCUMBENT EMPLOYEES HAD VOLUNTEERED. THE SUPERVISOR OF SHIPBUILDING,
CONVERSION AND REPAIR (SUPSHIPS), PASCAGOULA, ISSUED AN INSTRUCTION AT
THE LOCAL LEVEL PATTERNED AFTER THE NAVSHIP INSTRUCTION. THE
SUBORDINATE ACTIVITY AND THE UNION HAD A NEGOTIATED AGREEMENT WHICH
CONTAINED A PROVISION RELATING TO THE SUBJECT MATTER OF THE NAVSHIPS
INSTRUCTION. THE ASSISTANT SECRETARY DETERMINED THAT THE NAVSHIPS
INSTRUCTION WAS A REGULATION OF A HIGHER ECHELON IN THE SAME AGENCY, AND
AS SUCH, IT WAS NOT THE REGULATION OF AN "APPROPRIATE AUTHORITY" WITHIN
THE MEANING OF THE EXECUTIVE ORDER. THUS, THE ASSISTANT SECRETARY HELD
THAT AN INSTRUCTION FROM A HIGHER ECHELON WITHIN THE SAME AGENCY COULD
NOT SERVE AS A VALID BASIS FOR UNILATERAL MODIFICATION OF A NEGOTIATED
AGREEMENT IN EXISTENCE, AND HENCE, THERE CAN BE NO UNILATERAL
MODIFICATION OF A CURRENT CONTRACT PROVISION. THEREFORE, SUPSHIPS,
PASCAGOULA, IS DISTINGUISHABLE ON ITS FACTS, AND THE HOLDING IS
INAPPOSITE HERE.
BY CONCLUDING THAT THE EXECUTIVE ORDER DID NOT PLACE THE RESPONDENT
ACTIVITY UNDER AN OBLIGATION TO BARGAIN ABOUT THE DECISION TO REVISE THE
NUMERICAL CODE LEVELS DOWNWARD DOES NOT IMPLY, NOR DO I FIND, THAT THE
RESPONDENT ACTIVITY WAS RELIEVED OF ALL OBLIGATION TO MEET AND CONFER
WITH THE UNION REGARDING THE SUBJECT MATTER. THE CAREER APPRAISALS
INVOLVED PERSONNEL POLICIES AND PRACTICES AND WERE DIRECTLY RELATED TO
WORKING CONDITIONS IN THAT EMPLOYEE CAREER ADVANCEMENT WAS INEXTRICABLY
INVOLVED. THE UNION, AS THE EXCLUSIVE REPRESENTATIVE, HAD A LIGITIMATE
INTEREST IN THE MANNER AND THE METHODS BY WHICH MANAGEMENT WAS GOING TO
PROCEED TO IMPLEMENT THE DILLAWAY DIRECTIVE. THE UNION ALSO HAD AN
EQUALLY STRONG INTEREST IN THE EFFECT THAT THE DOWNWARD REVISION OF THE
APPRAISALS WOULD HAVE ON THE PROMOTION AND CAREER ADVANCEMENT POTENTIAL
OF THE EMPLOYEES. FOR THIS REASON, I FIND THAT WHILE THERE WAS NO DUTY
TO MEET AND CONFER REGARDING THE DECISION TO REDUCE THE GRADE LEVELS OF
THE CAREER APPRAISALS, THERE WAS A DUTY IMPOSED UNDER THE EXECUTIVE
ORDER TO MEET WITH THE UNION AND CONSULT REGARDING THE MEANS BY WHICH
THE POLICY OF THE DIRECTIVE WOULD BE IMPLEMENTED AND THE RESULTANT
IMPACT UPON THE EMPLOYEES AFFECTED. UNITED STATES DEPARTMENT OF NAVY,
BUREAU OF MEDICINE AND SURGERY, GREAT LAKES NAVAL HOSPITAL ILLINOIS,
A/SLMR NO. 289 (JULY 25, 1973). /8/
THE ARGUMENT OF THE RESPONDENT ACTIVITY THAT IT WAS RELIEVED OF ANY
OBLIGATION TO MEET AND CONFER WITH THE UNION BECAUSE THERE WAS NEVER
SUCH A REQUEST AFTER IT ACQUIRED KNOWLEDGE OF THE DIRECTIVE IS, IN MY
JUDGMENT, WITHOUT MERIT. THE FACTS OF THIS CASE SHOW THAT THE
RESPONDENT ACTIVITY WAS MADE AWARE OF THE DIRECTIVE BY AT LEAST MAY 10,
1973. THERE WAS NEVER AN ATTEMPT TO DISCUSS THE MATTER WITH THE UNION,
NOR TO INFORM THE UNION REPRESENTATIVES OF THE DIRECTIVE. THE BRIEF
POSTING OF THE DILLAWAY AND BECKMAN MEMORANDA ON THE BULLETIN BOARD
OUTSIDE OF THE DIRECTOR'S OFFICE DOES NOT, IN MY OPINION, SERVE AS
PROPER NOTIFICATION TO THE UNION OFFICIALS. BY BECKETT'S OWN ACCOUNT,
THE POSTING PERIOD COULD NOT HAVE BEEN MORE THAN THREE DAYS. THE TERMS
OF THE DIRECTIVE REQUIRED THE RESPONDENT ACTIVITY TO INITIATE THE
DOWNWARD REVISION OF THE CAREER APPRAISALS EFFECTIVE MAY 1, COMMENCING
WITH THE GS-15 EMPLOYEES. THIS MEANT THAT THE CAREER APPRAISALS WERE IN
THE PROCESS OF BEING CONDUCTED AND THE POLICY OF THE DIRECTIVE WAS BEING
IMPLEMENTED BY THE RESPONDENT ACTIVITY LONG BEFORE THE UNION
REPRESENTATIVES ACQUIRED KNOWLEDGE OF ITS EXISTENCE. CREDITING THE
TESTIMONY OF THE UNION PRESIDENT, THE EARLIEST POINT IN TIME THE UNION
BECAME AWARE OF THE DIRECTIVE WAS AUGUST 20, 1973. AT WHICH TIME THE
IMPLEMENTATION OF THE DIRECTIVE WAS FAIT ACCOMPLI-- AT LEAST WITH
RESPECT TO A SUBSTANTIAL NUMBER OF EMPLOYEES. THEREFORE, RELIANCE UPON
THE RATIONALE IN NORTON AIR FORCE BASE /9/ AND GREAT LAKES NAVAL
HOSPITAL CENTER /10/ ON THIS POINT BY THE RESPONDENT ACTIVITY IS
MISPLACED.
IN BOTH OF THOSE CASES THE COMPLAINING UNION WAS MADE AWARE OF THE
PENDING ACTION TO BE TAKEN BY THE AGENCY PRIOR TO ITS IMPLEMENTATION,
AND NEVER MADE A TIMELY REQUEST TO MEET AND CONSULT. THE FACTS OF THE
INSTANT CASE, HOWEVER, SHOW OTHERWISE. THIS IS NOT TO SUGGEST THAT THE
UNION PRESIDENT ACTED WISELY IN WAITING TO SEE IF MANAGEMENT WOULD
CONTACT HIM, BUT RATHER THAT THE RESPONDENT ACTIVITY CANNOT RELY ON THE
FAILURE, AT THIS JUNCTURE, TO RELIEVE IT OF THE OBLIGATION IMPOSED BY
THE EXECUTIVE ORDER. THIS IS ESPECIALLY TRUE SINCE THE RESPONDENT
ACTIVITY HAD IN FACT IMPLEMENTED THE NEW POLICY AT LEAST TWO AND A HALF
MONTHS PRIOR TO THE UNION ACQUIRING KNOWLEDGE OF ITS EXISTENCE.
IN VIEW OF THE ABOVE, AND CONSIDERING THE TOTALITY OF THE
CIRCUMSTANCES IN THIS CASE, I FIND AND CONCLUDE THAT THE RESPONDENT
ACTIVITY VIOLATED SECTION 19(A)(6) OF THE EXECUTIVE ORDER BY FAILING TO
INFORM THE UNION OF THE CHANGE IN POLICY MANDATED BY THE DILLAWAY
DIRECTIVE AND THEREBY AFFORDING THE UNION A REASONABLE OPPORTUNITY TO
MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON
THE PROCEDURES TO BE UTILIZED IN EFFECTUATING THE DIRECTIVE AND ON THE
IMPACT OF SUCH NEW POLICY ON ADVERSELY AFFECTED EMPLOYEES PRIOR TO THE
IMPLEMENTATION OF THAT POLICY. NEW MEXICO AIR NATIONAL GUARD,
DEPARTMENT OF MILITARY AFFAIRS, OFFICE OF THE ADJUTANT GENERAL, SANTA
FE, NEW MEXICO, A/SLMR NO. 362 (FEBRUARY 28, 19741; GREAT LAKES NAVAL
HOSPITAL, ILLINOIS, SUPRA; FEDERAL AVIATION ADMINISTRATION, NATIONAL
AVIATION FACILITIES EXPERIMENTAL CENTER, ATLANTIC, CITY, NEW JERSEY,
A/SLMR NO. 329 (NOVEMBER 28, 1973).
HAVING FOUND THAT THE RESPONDENT ACTIVITY VIOLATED SECTION 19(A)(6)
OF THE EXECUTIVE ORDER AND CONSIDERING THE CIRCUMSTANCES OF THIS CASE,
THE ONLY MEANINGFUL REMEDY THAT CAN BE AFFORDED HERE IS TO RESCIND ALL
CAREER APPRAISALS ISSUED AS A RESULT OF THE IMPLEMENTATION OF THE NEW
POLICY. TO HOLD OTHERWISE WOULD MEAN THAT THE UNION'S STATUS AS THE
EXCLUSIVE REPRESENTATIVE WOULD BE RELEGATED TO NOTHING MORE THAN AN
EMPTY FACADE AND THE BARGAINING OBLIGATION UNDER THE EXECUTIVE ORDER
WOULD IN FACT BE MEANINGLESS.
ON THE BASIS OF THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND UPON THE ENTIRE RECORD HEREIN, I RECOMMEND THAT THE ASSISTANT
SECRETARY ADOPT THE FOLLOWING RECOMMENDED ORDER DESIGNED TO EFFECTUATE
THE POLICY OF EXECUTIVE ORDER 11491, AS AMENDED.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY FOR
LABOR-MANAGEMENT RELATIONS, HEREBY ORDERS THAT THE DEPARTMENT OF THE
ARMY, UNITED STATES ARMY ARMAMENT COMMAND, ROCK ISLAND ARSENAL, ROCK
ISLAND, ILLINOIS, SHALL:
1. CEASE AND DESIST FROM:
(A) EFFECTUATING A DOWNWARD REVISION OF THE NUMERICAL CODE LEVELS OF
THE CAREER APPRAISALS
OF ENGINEER AND SCIENTIST EMPLOYEES REPRESENTED EXCLUSIVELY BY LOCAL
R7-68, NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE, AND AFFORDING SUCH
REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT
CONSONANT WITH LAW AND
REGULATIONS, ON THE PROCEDURES OR METHODS WHICH MANAGEMENT WILL
OBSERVE IN IMPLEMENTING THE
DIRECTIVE REQUIRING THE DOWNWARD REVISION OF CAREER APPRAISALS, AND
ON THE IMPACT OF THE
DOWNWARD REVISION ON THE EMPLOYEES ADVERSELY EFFECTED BY SUCH ACTION.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) NOTIFY LOCAL R7-68, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
OR ANY OTHER
EXCLUSIVE REPRESENTATIVE, OF ANY DIRECTIVES OR INSTRUCTIONS RECEIVED
FROM A HIGHER COMMAND TO
REVISE DOWNWARD THE NUMERICAL CODE LEVELS OF EMPLOYEES' CAREER
APPRAISALS AND, UPON REQUEST,
MEET AND CONFER IN GOOD FAITH, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON THE
PROCEDURES AND THE METHODS WHICH MANAGEMENT WILL OBSERVE IN
IMPLEMENTING THE DIRECTIVES, AND
ON THE IMPACT THE NEW CAREER APPRAISAL POLICY WILL HAVE ON THE
EMPLOYEES ADVERSELY AFFECTED BY
SUCH ACTION.
(B) POST AT ITS FACILITY AT THE ROCK ISLAND ARSENAL, COPIES OF THE
ATTACHED NOTICE MARKED
"APPENDIX", ON FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY FOR
LABOR-MANAGEMENT
RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
DIRECTOR AND SHALL BE
POSTED AND MAINTAINED BY HIM FOR SIXTY (60) CONSECUTIVE DAYS
THEREAFTER IN CONSPICUOUS PLACES,
INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY
POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SUCH NOTICES
ARE NOT ALTERED, DEFACED,
OR COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.26 OF THE REGULATIONS NOTIFY THE
ASSISTANT SECRETARY, IN
WRITING, WITHIN TWENTY DAYS (20) FROM THE DATE OF THIS ORDER, AS TO
WHAT STEPS HAVE BEEN TAKEN
TO COMPLY HEREWITH.
DATED: FEBRUARY 10, 1975
WASHINGTON, D.C.
WE WILL NOT CONTINUE TO IMPLEMENT THE APRIL 10, 1973, DIRECTIVE FROM
THE ARMY MATERIEL COMMAND (AMC), AS AUGMENTED BY THE DIRECTIVES ISSUED
MAY 4 AND AUGUST 20, 1973, BY THE ARMY ARMAMENT COMMAND (ARMCOM),
REQUIRING THE DOWNWARD REVISION OF THE NUMERICAL CODE LEVELS OF THE
CAREER APPRAISALS OF OUR ENGINEER AND SCIENTIST EMPLOYEES EXCLUSIVELY
REPRESENTED BY LOCAL R7-68, NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, WITHOUT AFFORDING SUCH
REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES AND METHODS
MANAGEMENT WILL FOLLOW IN EFFECTUATING THE MANDATE OF THE DIRECTIVES,
AND ON THE IMPACT OF THE DOWNWARD REVISION OF THE NUMERICAL CODE LEVELS
ON THE EMPLOYEES ADVERSELY AFFECTED BY SUCH ACTION.
WE WILL RESCIND ALL EMPLOYEE CAREER APPRAISALS ISSUED IN
IMPLEMENTATION OF THE APRIL 10, MAY 4 AND AUGUST 20, 1973, DIRECTIVES
AND WILL NOTIFY LOCAL R7-68, NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, OF THE POLICY
REQUIREMENT MANDATING THE DOWNWARD REVISION OF THE NUMERICAL CODE LEVELS
OF THE CAREER APPRAISALS OF OUR ENGINEER AND SCIENTIST EMPLOYEES.
WE WILL, UPON REQUEST, MEET AND CONFER IN GOOD FAITH WITH LOCAL
R7-68, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON THE PROCEDURES AND METHODS MANAGEMENT WILL FOLLOW IN
EFFECTUATING THE POLICY REQUIREMENT REGARDING THE DOWNWARD REVISION OF
THE NUMERICAL CODE LEVELS ASSIGNED TO ENGINEER AND SCIENTIST CAREER
APPRAISALS, AND ON THE IMPACT OF SUCH POLICY ON THE EMPLOYEES ADVERSELY
AFFECTED BY SUCH ACTION.
WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR CAUSE OUR EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED THEM BY
EXECUTIVE ORDER 11491, AS AMENDED.
DATED . . . BY . . .
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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE ASSISTANT
REGIONAL DIRECTOR, FOR LABOR-MANAGEMENT SERVICES, U.S. DEPARTMENT OF
LABOR, WHOSE ADDRESS IS 712 EVERETT MCKINLEY DIRKSEN BUILDING, 219 S.
DEARBORN STREET, CHICAGO, ILLINOIS 60604.
/1/ THE OTHER ARSENALS ENGAGED IN SIMILAR ACTIVITIES ARE (1) EDGEWOOD
ARSENAL, ABERDEEN PROVING GROUND, MD.; (2) FRANKFORD ARSENAL,
PHILADELPHIA, PA.; (3) WATERVLIET ARSENAL, WATERVLIET, NY.; AND (4)
PICATINNY ARSENAL, DOVER, N.J.
/2/ DILLAWAY WAS ATTACHED TO THE HEADQUARTERS OF THE ARMY MATERIEL
COMMAND (AMC) AS DEPUTY FOR LABORATORIES. HE WAS ALSO THE CAREER
MANAGER FOR ENGINEERS AND SCIENTISTS ARMY-WIDE.
/3/ THE NUMERICAL CODE LEVELS ASSIGNED TO THE CAREER APPRAISALS WERE
AS FOLLOWS:
0-UNSATISFACTORY
1-MARGINAL
2-AVERAGE
3-ABOVE AVERAGE
4-OUTSTANDING
/4/ THE RECORD TESTIMONY INDICATES THAT THE BUILDING IN WHICH
BECKETT'S OFFICE WAS LOCATED WAS NOT THE ONLY BUILDING OCCUPIED BY THE
LABORATORY. APPARENTLY THE LABORATORY CONSISTED OF A SERIES OF
BUILDINGS LOCATED IN A COMPLEX.
/5/ THERE IS SOME CONTENTION ON THE RECORD THAT A LARGE NUMBER OF THE
EMPLOYEES DID NOT USE THIS ENTRANCE WHEN ENTERING THE BUILDING.
HOWEVER, THERE IS UNDISPUTED TESTIMONY THAT AT THE TIME OF THE POSTING,
THE RESPONDENT CUSTOMARILY POSTED MATTERS WHICH CONCERN EMPLOYEES ON THE
BULLETIN BOARD OUTSIDE OF BECKETT'S OFFICE. THERE IS ALSO UNDISPUTED
TESTIMONY THAT ITEMS POSTED ONLY WERE ALLOWED REMAIN TWO OR THREE DAYS.
THE MANNER AND PLACE OF POSTING, HOWEVER, IS NOT IMPORTANT TO THE
ULTIMATE DECISION IN THIS CASE BEYOND RECOGNITION OF THE FACT THAT THERE
WAS A BRIEF POSTING OF THE MEMORANDA.
/6/ MANATA WAS ALSO THE VICE PRESIDENT OF THE UNION.
/7/ UNITED FEDERATION OF COLLEGE TEACHERS, LOCAL 1460 AND MERCHANT
MARINE ACADEMY, FLRC NO. 71A-15, REPORT NO. 30 (NOVEMBER 20, 1972);
DEPARTMENT OF DEFENSE, AIR FORCE DEFENSE LANGUAGE INSTITUTE, ENGLISH
LANGUAGE BRANCH, LACKLAND AIR FORCE BASE, TEXAS, FLRC NO. 73A-64, REPORT
NO. 58 (NOVEMBER 20, 1974).
/8/ CF. VETERANS ADMINISTRATION RESEARCH HOSPITAL, CHICAGO, ILLINOIS,
FLRC NO. 71A-31, REPORT NO. 31 (NOVEMBER 27, 1972), AND NAVAL PUBLIC
WORKS CENTER, NORFOLK, VIRGINIA, FLRC NO. 71A-56, REPORT NO. 41 (JUNE
29, 1973)
/9/ US DEPARTMENT OF AIR FORCE, NORTON AIR FORCE BASE, A/SLMR NO.
261 (APRIL 30, 1973).
/10/ UNITED STATES DEPARTMENT OF NAVY, BUREAU OF MEDICINE AND
SURGERY, GREAT LAKES NAVAL HOSPITAL, ILLINOIS, SUPRA.
5 A/SLMR 526; P. 410; CASE NO. 52-5716(RO); JUNE 30, 1975.
GENERAL SERVICES ADMINISTRATION,
REGION 5, QUALITY CONTROL DIVISION,
FEDERAL SUPPLY SERVICE
A/SLMR NO. 526
THIS CASE INVOLVES A SEVERANCE REQUEST BY THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1300 (NFFE) FOR A UNIT OF FIVE QUALITY
ASSURANCE SPECIALISTS IN THE GEOGRAPHICAL AREA OF THE LOWER PENINSULA OF
THE STATE OF MICHIGAN CURRENTLY REPRESENTED IN A BROADER UNIT BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2075 (AFGE).
THE ACTIVITY CONTENDED THAT THE PETITIONED FOR UNIT IS INAPPROPRIATE
BECAUSE IT WOULD FRAGMENT AN EXISTING UNIT AND WOULD NOT PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. FURTHER, IT
ASSERTED THAT THE AFGE HAS FAIRLY AND EFFECTIVELY REPRESENTED THE
EMPLOYEES IN THE UNIT FOR WHICH IT IS THE EXCLUSIVE REPRESENTATIVE.
APPLYING THE POLICY ENUNCIATED IN UNITED STATES NAVAL CONSTRUCTION
BATTALION CENTER, A/SLMR NO. 8, THE ASSISTANT SECRETARY DENIED THE
SEVERANCE REQUEST AND DISMISSED THE NFFE'S PETITION. IN THIS REGARD, HE
NOTED THE ABSENCE OF ANY EVIDENCE THAT THE AFGE HAD FAILED OR REFUSED TO
REPRESENT ANY UNIT EMPLOYEES, INCLUDING THOSE IN THE CLAIMED UNIT.
GENERAL SERVICES ADMINISTRATION,
REGION 5, QUALITY CONTROL DIVISION,
FEDERAL SUPPLY SERVICE
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1300
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2075
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER GREGORY A. MIKSA.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILED BY THE
PARTIES, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
1300, HEREIN CALLED NFFE, SEEKS AN ELECTION IN A UNIT OF ALL EMPLOYEES
OF THE QUALITY CONTROL DIVISION (QCD), FEDERAL SUPPLY SERVICE (FSS),
GENERAL SERVICES ADMINISTRATION (GSA), REGION 5, IN THE GEOGRAPHICAL
AREA OF THE LOWER PENINSULA OF THE STATE OF MICHIGAN, EXCLUDING
PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, GUARDS
AND SUPERVISORS. BY ITS PETITION HEREIN, THE NFFE SEEKS TO SEVER A UNIT
OF FIVE QUALITY ASSURANCE SPECIALISTS FROM A BROADER UNIT CURRENTLY
REPRESENTED ON AN EXCLUSIVE BASIS BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2075, HEREIN CALLED AFGE.
THE ACTIVITY CONTENDS THAT THE PETITIONED FOR UNIT IS INAPPROPRIATE
BECAUSE IT WOULD FRAGMENT AN EXISTING UNIT AND WOULD NOT PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. FURTHER, IT
ASSERTS THAT THE AFGE HAS FAIRLY AND EFFECTIVELY REPRESENTED THE
EMPLOYEES IN THE EXISTING UNIT.
REGION 5 OF GSA IS HEADQUARTERED IN CHICAGO, ILLINOIS, AND
ENCOMPASSES THE STATES OF ILLINOIS, MICHIGAN, MINNESOTA, OHIO, AND
WISCONSIN. ORGANIZATIONALLY, THE FSS IS ONE OF FOUR GSA SERVICES, /1/
EACH OF WHICH REPORTS TO THE REGIONAL ADMINISTRATOR. IT IS COMPOSED OF
8 DIVISIONS AND 17 BRANCHES. THE QUALITY ASSURANCE SPECIALISTS IN THE
CLAIMED UNIT ARE EMPLOYED IN THE QCD WHICH REPORTS TO A REGIONAL
COMMISSIONER WHO, IN TURN, REPORTS TO THE REGIONAL ADMINISTRATOR. THE
QCD IS CONCERNED WITH THE ADMINISTRATION OF GSA CONTRACTS AWARDED TO
MANUFACTURERS AND, IN THIS REGARD, ENSURES THAT CONTRACT REQUIREMENTS
ARE MET WITH RESPECT TO TIMELINESS AND QUALITY.
QUALITY ASSURANCE SPECIALISTS ARE RESPONSIBLE FOR THE FIELD
ADMINISTRATION OF GSA AWARDED CONTRACTS AND, AT TIMES, ARE THE ONLY
INDIVIDUALS ON BEHALF OF THE GSA WHO HAVE DIRECT CONTACT WITH THE
CONTRACTORS. THE RECORD REVEALS THAT THE SPECIALISTS HAVE DISTINCTIVE
JOB RESPONSIBILITIES, KNOWLEDGE AND SKILLS WHICH REQUIRE SPECIFIC
TRAINING. THE EVIDENCE ESTABLISHES THAT THE AFGE HAS BEEN THE EXCLUSIVE
REPRESENTATIVE FOR ALL NONPROFESSIONAL AND NONSUPERVISORY GSA EMPLOYEES
IN THE AREA OF THE LOWER PENINSULA OF THE STATE OF MICHIGAN, INCLUDING
THE EMPLOYEES IN THE CLAIMED UNIT (WITH THE EXCEPTION OF UNITS OF GSA
EMPLOYEES IN KALAMAZOO AND BATTLE CREEK, MICHIGAN REPRESENTED BY ANOTHER
AFGE LOCAL), SINCE 1973. WITH RESPECT TO THE TYPE OF REPRESENTATION IT
HAS OFFERED TO UNIT EMPLOYEES, THE RECORD INDICATES THAT THE AFGE HOLDS
MONTHLY MEMBERSHIP MEETINGS, PUBLISHES A NEWSPAPER, AND ISSUES A MONTHLY
NEWSLETTER. FURTHER, THE PRESIDENT OF THE AFGE IS IN FREQUENT CONTACT
WITH THE ACTIVITY'S CHIEF OF EMPLOYEE RELATIONS WITH REGARD TO ALL
MATTERS AFFECTING THE UNIT EMPLOYEES. WHILE, AT PRESENT, THE QUALITY
ASSURANCE SPECIALISTS DO NOT HAVE THEIR OWN STEWARD, THE RECORD REFLECTS
THAT THERE HAS BEEN A QUALITY ASSURANCE SPECIALIST STEWARD IN THE PAST.
IT APPEARS FROM THE RECORD THAT THE MAJORITY OF GRIEVANCES ARE HANDLED
INFORMALLY WITH IMMEDIATE SUPERVISORS AND HAVE NOT REACHED THE FORMAL
STAGE. THERE IS NO EVIDENCE THAT THE AFGE EVER HAS REFUSED TO HANDLE A
GRIEVANCE OF ANY UNIT EMPLOYEE, NOR IS THERE ANY EVIDENCE THAT IT HAS
REFUSED TO REPRESENT THE CLAIMED EMPLOYEES OR HAS TREATED THEM IN A
DISPARATE MANNER.
I FIND THAT THE PETITIONED FOR UNIT OF ALL QUALITY ASSURANCE
SPECIALISTS IN THE GEOGRAPHICAL AREA OF THE LOWER PENINSULA OF THE STATE
OF MICHIGAN IS NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION.
THUS, IT HAS BEEN HELD PREVIOUSLY THAT A SEPARATE UNIT CARVED OUT OF AN
EXISTING UNIT WILL NOT BE FOUND APPROPRIATE EXCEPT IN CIRCUMSTANCES
WHERE THE EVIDENCE ESTABLISHES THAT THE EMPLOYEES SOUGHT HAVE NOT BEEN
REPRESENTED FAIRLY AND EFFECTIVELY. /2/ I FIND NO SUCH CIRCUMSTANCES IN
THE INSTANT CASE. THUS, THERE IS NO EVIDENCE THAT THE AFGE HAS FAILED
OR REFUSED TO REPRESENT ANY UNIT EMPLOYEES, AND THE RECORD REVEALS THAT
A HARMONIOUS BARGAINING RELATIONSHIP HAS BEEN MAINTAINED SINCE 1973
BETWEEN THE ACTIVITY AND THE AFGE COVERING THE UNIT EMPLOYEES IN THE
LOWER PENINSULA OF THE STATE OF MICHIGAN, INCLUDING THOSE PETITIONED FOR
HEREIN. ACCORDINGLY, I FIND THE UNIT SOUGHT BY THE NFFE IS
INAPPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION, AND I SHALL,
THEREFORE, DISMISS ITS PETITION.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 52-5716(RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 30, 1975
/1/ THE OTHER THREE SERVICES ARE THE PUBLIC BUILDINGS SERVICE, THE
AUTOMATED DATA AND TELECOMMUNICATIONS SERVICE, AND THE OFFICE OF
ADMINISTRATION.
/2/ SEE UNITED STATES NAVAL CONSTRUCTION BATTALION CENTER, A/SLMR NO.
8 AND DEPARTMENT OF THE NAVY, NAVAL AIR STATION, CORPUS CHRISTI, TEXAS,
A/SLMR NO. 150, FLRC NO. 72A-24.
5 A/SLMR 525; P. 406; CASE NO. 71-2572; JUNE 30, 1975.
PUGET SOUND NAVAL SHIPYARD,
DEPARTMENT OF THE NAVY,
BREMERTON, WASHINGTON
A/SLMR NO. 525
IN HIS DECISION AND REMAND IN A/SLMR NO. 425, THE ASSISTANT SECRETARY
FOUND THAT THE ADMINISTRATIVE LAW JUDGE HAD RELIED ON CERTAIN WRITTEN
AND ORAL EVIDENCE RELATED TO DOCUMENTS ENCOMPASSED BY HIS REQUEST FOR
PRODUCTION OF DOCUMENTS WHICH THE RESPONDENT HAD REFUSED TO HONOR.
ACCORDINGLY, HE REMANDED THE CASE TO THE ADMINISTRATIVE LAW JUDGE FOR
THE PURPOSE OF ISSUING A SUPPLEMENTAL REPORT AND RECOMMENDATION WITHOUT
CONSIDERING SUCH RELATED EVIDENCE. THE CASE INVOLVED AN UNFAIR LABOR
PRACTICE COMPLAINT FILED BY THE BREMERTON METAL TRADES COUNCIL ON BEHALF
OF ITS AFFILIATE MEMBER AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 48, AFL-CIO (COMPLAINANT) AGAINST PUGET SOUND NAVAL SHIPYARD,
DEPARTMENT OF THE NAVY, BREMERTON, WASHINGTON (RESPONDENT), ALLEGING
THAT THE LATTER VIOLATED SECTION 19(A)(1) AND (2) OF THE ORDER BY
DENYING A PROMOTION TO ONE OF ITS EMPLOYEES BECAUSE OF HIS UNION
ACTIVITIES.
PURSUANT TO THE DECISION AND REMAND, THE ADMINISTRATIVE LAW JUDGE
EXCLUDED FROM EVIDENCE ALL OF THE DOCUMENTS RELATING TO THE PROMOTION OF
THE EMPLOYEE WHICH THE RESPONDENT HAD SOUGHT TO INTRODUCE AND WHICH WERE
COVERED BY THE REQUESTS FOR PRODUCTION OF DOCUMENTS, TOGETHER WITH ALL
WRITTEN AND ORAL EVIDENCE RELATED TO THE DOCUMENTS. UPON FINDING NO
EVIDENCE OF ANTI-UNION ANIMUS ON THE PART OF THE RESPONDENT OR ITS
AGENTS TO WARRANT A CONCLUSION THAT THE EMPLOYEE WAS NOT PROMOTED
BECAUSE OF HIS UNION ACTIVITIES, THE ADMINISTRATIVE LAW JUDGE
RECOMMENDED DISMISSAL OF THE COMPLAINT. IN THIS REGARD, THE
ADMINISTRATIVE LAW JUDGE CREDITED THE TESTIMONY OF THE RESPONDENT'S
SUPERVISOR.
THE ASSISTANT SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE AND ORDERED THAT THE
COMPLAINT BE DISMISSED IN ITS ENTIRETY.
PUGET SOUND NAVAL SHIPYARD,
DEPARTMENT OF THE NAVY,
BREMERTON, WASHINGTON
AND
BREMERTON METAL TRADES COUNCIL
ON BEHALF OF ITS AFFILIATE MEMBER
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 48, AFL-CIO
ON APRIL 29, 1974, ADMINISTRATIVE LAW JUDGE MILTON KRAMER ISSUED HIS
ORIGINAL REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD NOT VIOLATED SECTION 19(A)(1) AND (2) OF
THE ORDER BY ITS FAILURE TO PROMOTE JAMES M. BYRD TO THE POSITION OF
METAL INSPECTOR "A" AS ALLEGED IN THE COMPLAINT. HOWEVER, BASED ON,
AMONG OTHER THINGS, THE RESPONDENT'S "PATENTLY UNJUSTIFIED" REFUSAL TO
HONOR REQUESTS FOR PRODUCTION OF DOCUMENTS ISSUED BY THE ADMINISTRATIVE
LAW JUDGE, THE LATTER RECOMMENDED THAT THE RESPONDENT BE REQUIRED TO
PROMOTE BYRD TO THE ABOVE-NOTED POSITION.
IN A DECISION AND REMAND DATED AUGUST 28, 1974, /1/ I FOUND, IN
AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THAT THE RESPONDENT'S
REFUSAL TO COMPLY WITH THE ADMINISTRATIVE LAW JUDGE'S REQUESTS TO
PRODUCE DOCUMENTS WAS UNJUSTIFIED. IN THIS CONNECTION, I CONCLUDED THAT
ALL WRITTEN AND ORAL EVIDENCE RELATED TO THOSE DOCUMENTS COVERED BY SUCH
REQUESTS SHOULD HAVE BEEN EXCLUDED FROM THE RECORD BY THE ADMINISTRATIVE
LAW JUDGE AND NOT CONSIDERED IN THE DETERMINATION OF THE MATTER.
REGARDING THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDATION THAT THE
RESPONDENT BE REQUIRED TO PROMOTE EMPLOYEE BYRD BECAUSE OF ITS FAILURE
TO COMPLY WITH THE REQUESTS TO PRODUCE DOCUMENTS, I FOUND THAT SUCH A
REMEDY BASED SOLELY ON A FAILURE TO COMPLY WITH THE ASSISTANT
SECRETARY'S REGULATIONS WAS PUNITIVE IN NATURE AND WOULD NOT EFFECTUATE
THE PURPOSE AND POLICIES OF THE ORDER. NOTING THAT IN HIS REPORT AND
RECOMMENDATIONS THE ADMINISTRATIVE LAW JUDGE HAD RELIED ON CERTAIN
WRITTEN AND ORAL EVIDENCE WHICH WAS RELATED TO THE DOCUMENTS WHICH THE
RESPONDENT REFUSED TO PRODUCE, THE CASE WAS REMANDED TO THE
ADMINISTRATIVE LAW JUDGE FOR THE PURPOSE OF ISSUING A SUPPLEMENTAL
REPORT AND RECOMMENDATION WITHOUT CONSIDERING SUCH RELATED EVIDENCE.
ON MARCH 7, 1975, THE ADMINISTRATIVE LAW JUDGE ISSUED HIS
SUPPLEMENTAL REPORT AND RECOMMENDATION 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 EXCEPTIONS WITH RESPECT TO THE
ADMINISTRATIVE LAW JUDGE'S SUPPLEMENTAL REPORT AND RECOMMENDATION.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE
ADMINISTRATIVE LAW JUDGE MADE IN HIS SUPPLEMENTAL REPORT AND
RECOMMENDATION. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF
THE ADMINISTRATIVE LAW JUDGE'S SUPPLEMENTAL REPORT AND RECOMMENDATION
AND THE ENTIRE RECORD IN THIS CASE, INCLUDING THE COMPLAINANT'S
EXCEPTIONS, I HEREBY ADOPT THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, /2/
CONCLUSIONS, /3/ AND RECOMMENDATIONS.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 71-2572 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 30, 1975
/1/ A/SLMR NO. 425.
/2/ WITH RESPECT TO THE ADOPTION OF THE ADMINISTRATIVE LAW JUDGE'S
CREDIBILITY FINDINGS, SEE NAVY EXCHANGE, U.S. NAVAL AIR STATION, QUONSET
POINT, RHODE ISLAND, A/SLMR NO. 180.
ON PAGE 6 OF HIS SUPPLEMENTAL REPORT AND RECOMMENDATION, THE
ADMINISTRATIVE LAW JUDGE INADVERTENTLY REFERRED TO BYRD RATHER THAN
LEWIS IN HIS FINDING THAT LEWIS DID NOT, IN FACT, SAY OR MEAN TO IMPLY
THAT BYRD REQUIRED MORE THAN NORMAL SUPERVISION BECAUSE OF HIS UNION
ACTIVITIES. THIS INADVERTENT ERROR IS HEREBY CORRECTED.
/3/ ALTHOUGH NOT SPECIFICALLY EXCLUDED BY THE ADMINISTRATIVE LAW
JUDGE, I FIND THAT EXHIBIT R4, ENTITLED "WORK PERFORMANCE APPRAISAL",
WAS RELATED TO THE REQUESTS FOR PRODUCTION OF DOCUMENTS. AS THIS
EXHIBIT WAS NOT RELIED UPON BY THE ADMINISTRATIVE LAW JUDGE IN REACHING
HIS DETERMINATION HEREIN, I FIND THAT HIS FAILURE SPECIFICALLY TO
EXCLUDE SUCH EXHIBIT DID NOT CONSTITUTE PREJUDICIAL ERROR.
IN THE MATTER OF
PUGET SOUND NAVAL SHIPYARD
DEPARTMENT OF THE NAVY
BREMERTON, WASHINGTON
AND
BREMERTON METAL TRADES COUNCIL
ON BEHALF OF ITS AFFILIATE MEMBER
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 48, AFL-CIO
H. TIM HOFFMAN, ESQ.
AVERBUCK & HOFFMAN
1300 TRIBUNE TOWER
OAKLAND, CALIFORNIA 94612
STUART M. FOSS, ESQ.
LABOR RELATIONS ADVISOR
OFFICE OF CIVILIAN MANPOWER MANAGEMENT
DEPARTMENT OF THE NAVY
WASHINGTON, D.C. 20390
BEFORE: MILTON KRAMER
ADMINISTRATIVE LAW JUDGE
THE ORIGINAL REPORT AND RECOMMENDATIONS IN THIS CASE WAS ISSUED APRIL
29, 1974. IT HELD THAT ON THE BASIS OF THE RECORD BEFORE ME THE
COMPLAINANT HAD NOT SUSTAINED ITS BURDEN OF SHOWING THAT JAMES A. BYRD
HAD NOT BEEN GIVEN A PROMOTION TO METALS INSPECTOR "A" FROM METALS
INSPECTOR "B" BECAUSE OF HIS UNION ACTIVITIES. IN REACHING THAT
CONCLUSION I EXCLUDED FROM CONSIDERATION CERTAIN EXHIBITS /1/ INTRODUCED
BY THE RESPONDENT BECAUSE OF THE RESPONDENT'S REFUSAL TO COMPLY WITH MY
REQUESTS THAT IT PRODUCE THOSE DOCUMENTS BEFORE THE HEARING ON THE
MERITS BEGAN FOR USE BY THE COMPLAINANT. THE RESPONDENT'S REFUSAL WAS
BASED ON ITS CONTENTION THAT MY REQUESTS WERE INVALID, BUT IT PRODUCED
SOME OF THOSE DOCUMENTS DURING THE TRAIL AS PART OF ITS OWN CASE ON THE
MERITS. THE DETAILS ARE SET FORTH IN MY ORIGINAL REPORT AND
RECOMMENDATIONS UNDER THE CAPTION "REQUESTS FOR PRODUCTION OF WITNESSES
AND DOCUMENTS", PAGES 2-7. HOWEVER, I DID CONSIDER EVIDENCE RELATED TO
THOSE EXHIBITS ON THE GROUND THAT TO DISREGARD ALL RELATED EVIDENCE AS
WELL AS THE EXHIBITS WOULD RESULT IN A DECISION CONTRARY TO WHAT WE KNEW
WERE THE FACTS, AND THAT THE RESPONDENT'S RECALCITRANCE WAS SINCERE
ALTHOUGH SORELY MISTAKEN.
ALTHOUGH I CONCLUDED THAT THE COMPLAINANT HAD NOT PROVEN ITS CASE ON
THE MERITS, I NEVERTHELESS RECOMMENDED THAT THE RESPONDENT PROMOTE BYRD.
THIS RECOMMENDATION I ATTEMPTED TO JUSTIFY ON THE THEORY THAT: TO
DISMISS THE COMPLAINT FOR FAILURE OF PROOF WOULD PERMIT UNJUSTIFIED
RECALCITRANCE TO PASS WITHOUT MEANINGFUL SANCTION; TO REQUIRE THE
RESPONDENT TO PROMOTE BYRD WOULD NOT REQUIRE IT TO PROMOTE A PERSON
UNQUALIFIED FOR PROMOTION BECAUSE BYRD WAS CONCEDEDLY HIGHLY QUALIFIED
FOR THE HIGHER POSITION; THE NORMAL RATIO OF METALS INSPECTOR "A" TO
OTHER METALS INSPECTORS WAS ABOUT ONE TO THREE BUT FLUCTUATED ABOVE OR
BELOW THAT RATIO BECAUSE OF TURNOVER; AND TO REQUIRE THE RESPONDENT TO
PROMOTE BYRD WOULD THEREFORE NOT SIGNIFICANTLY PREJUDICE THE PUBLIC
INTEREST AND WOULD REQUIRE THE RESPONDENT TO DO SOMETHING SIGNIFICANT IT
DID NOT WANT TO DO AND THUS WOULD BE A MEANINGFUL SANCTION FOR ITS
RECALCITRANCE.
THE ASSISTANT SECRETARY HELD IN THIS CASE, IN A/SLMR NO. 425, THAT TO
ORDER THE RESPONDENT TO PROMOTE BYRD, SOLELY ON THE BASIS OF FAILURE TO
COMPLY WITH THE REGULATIONS, WOULD BE PUNITIVE IN NATURE AND WOULD NOT
EFFECTUATE THE PURPOSE AND POLICIES OF EXECUTIVE ORDER 11491 AS AMENDED.
HE HELD FURTHER THAT WHILE IT WAS PROPER TO EXCLUDE FROM CONSIDERATION
THE DOCUMENTS SOUGHT BY THE ADMINISTRATIVE LAW JUDGE WHICH THE
RESPONDENT REFUSED TO PRODUCE PURSUANT TO THE REQUESTS BUT OFFERED AS
PART OF ITS OWN CASE, NOT ONLY THOSE DOCUMENTS OFFERED AS PART OF ITS
OWN CASE, NOT ONLY THOSE DOCUMENTS BUT ALL EVIDENCE RELATED TO THOSE
DOCUMENTS SHOULD HAVE BEEN EXCLUDED FROM CONSIDERATION,-- NOT AS A
PUNITIVE MEASURE BUT TO EFFECTUATE THE PURPOSE AND POLICIES OF THE
EXECUTIVE ORDER.
ACCORDINGLY, THE ASSISTANT SECRETARY REMANDED THE CASE TO THE
ADMINISTRATIVE LAW JUDGE TO ISSUE A SUPPLEMENTAL REPORT AND
RECOMMENDATION WITHOUT CONSIDERING NOT ONLY THE DOCUMENTS IN QUESTION
BUT WITHOUT CONSIDERING RELATED EVIDENCE. HE STATED THAT THE PARTIES
SHOULD BE AFFORDED AN OPPORTUNITY TO SUBMIT BRIEFS ON THE QUESTION OF
WHICH EVIDENCE WAS RELATED TO THE SUBJECT DOCUMENTS AND THE EFFECT THE
EXCLUSION OF SUCH EVIDENCE WOULD HAVE ON THE MERITS OF THE CASE.
OPPORTUNITY WAS GIVEN TO THE PARTIES TO FILE SUPPLEMENTAL BRIEFS. IN
ACCORDANCE WITH EXTENSIONS OF TIME GRANTED PURSUANT TO JOINT REQUESTS,
THE PARTIES FILED SUPPLEMENTAL BRIEFS ON NOVEMBER 11, 1974.
THE COMPLAINANT TAKES THE POSITION THAT PURSUANT TO THE ASSISTANT
SECRETARY'S ORDER OF REMAND ALL THE EVIDENCE PRESENTED BY THE RESPONDENT
MUST BE EXCLUDED FROM CONSIDERATION. THIS IS SO, ARGUES THE RESPONDENT,
BECAUSE IT IS FAIR TO ASSUME THAT THE DOCUMENTS NOT PRODUCED CONTAIN
INFORMATION FATALLY DAMAGING TO THE RESPONDENT'S CASE AND BECAUSE IT IS
ALSO FAIR TO ASSUME THAT THE RESPONDENT'S ORAL EVIDENCE "WAS OR MAY HAVE
BEEN RELATED TO THOSE DOCUMENTS NOT PRODUCED." AT THE CLOSE OF THE
COMPLAINANT'S EVIDENCE IN CHIEF THE RESPONDENT MOVED THAT THE COMPLAINT
BE DISMISSED FOR HAVING FAILED TO HAVE PROVEN A CAUSE OF ACTION. THE
MOTION WAS DENIED. IT FOLLOWS, ARGUES THE COMPLAINANT, THAT SUCH RULING
HELD THAT A PRIMA FACIE CASE HAD BEEN PROVEN, AND THAT SINCE ALL OF
RESPONDENT'S EVIDENCE MUST BE DISREGARDED UNDER THE ASSISTANT
SECRETARY'S ORDER OF REMAND, A PRIMA FACIE CASE HAS BEEN ESTABLISHED AND
IS UNREFUTED.
WITH RESPECT TO THE SPECIFIC TESTIMONY OF RESPONDENT WITNESSES WHICH
SHOULD BE EXCLUDED, THE COMPLAINANT GOES TO SIMILAR EXTREMES. FOR
EXAMPLE, THE COMPLAINANT WOULD HAVE US EXCLUDE ALL THE TESTIMONY OF THE
MEMBERS OF THE RATING PANEL BECAUSE EXHIBIT R3, ONE OF THE TAINTED
EXHIBITS, SHOWS WHO WERE THE MEMBERS OF THE PANEL AND THEREFORE, ARGUES
THE COMPLAINANT, THEIR TESTIMONY IS RELATED TO THAT EXHIBIT. SIMILARLY,
THE RESPONDENT WOULD HAVE US EXCLUDE ALL TESTIMONY CONCERNING THE
PROCEDURES USED IN EVALUATING CANDIDATES BECAUSE SUCH TESTIMONY
ALLEGEDLY "DIRECTLY RELATES" TO EXHIBIT R9, ANOTHER OF THE TAINTED
DOCUMENTS, WHICH SETS FORTH THE VACANCY ANNOUNCEMENT INCLUDING THE
STATEMENT OF REQUIRED QUALIFICATIONS WHICH STANDARDS WERE SUPPOSED TO
HAVE BEEN APPLIED.
I BELIEVE SUCH "RELATIONSHIP" TO BE TOO DISTANT TO BE INCLUDED WITHIN
THE ASSISTANT SECRETARY'S PROSCRIPTION OF THE EVIDENCE TO BE CONSIDERED.
AND THE COMPLAINANT ATTRIBUTES TOO MUCH SIGNIFICANCE TO AN
ADMINISTRATIVE LAW JUDGE DENYING A MOTION TO DISMISS AT THE CLOSE OF THE
COMPLAINANT'S EVIDENCE IN CHIEF. AN ADMINISTRATIVE LAW JUDGE DOES NOT
HAVE AUTHORITY TO GRANT SUCH A MOTION; HE CAN ONLY DENY IT OR RECOMMEND
THAT IT BE GRANTED. TO FOLLOW THE LATTER COURSE WOULD MEAN CLOSING THE
HEARING WITH A SUBSTANTIAL LIKELIHOOD IT WOULD HAVE TO BE REOPENED WITH
A CONCOMITANT SUBSTANTIAL DELAY. TO BE SURE, A RESPONDENT MAY STAND ON
ITS MOTION TO DISMISS AT THE CLOSE OF A COMPLAINANT'S CASE IN CHIEF, AS
WAS DONE IN INTERNAL REVENUE SERVICE, FRESNO SERVICE CENTER, A/SLMR NO.
489. A DENIAL OF A MOTION TO DISMISS AT THE CLOSE OF THE COMPLAINANT'S
CASE IN CHIEF, AND THE AFFIRMANCE OF SUCH RULING BY THE ASSISTANT
SECRETARY IN A BLANKET PROCEDURAL RULING, ARE NOT AN ADJUDICATION THAT
THE COMPLAINANT'S CASE IN CHIEF ESTABLISHED A PRIMA FACIE CASE. BUT
EVEN IF IT WERE, I CANNOT CONCLUDE THAT UNDER THE ORDER OF REMAND I MUST
DISREGARD ALL THE TESTIMONY AND OTHER EVIDENCE "RELATED" TO EXHIBITS R3,
R5, AND R9 THROUGH R16 OR RELATED TO OTHER DOCUMENTS INCLUDED IN MY
REQUESTS TO PRODUCE AND NOT PRODUCED.
EXHIBIT R3 CONSISTS OF THREE PARTS. THE FIRST PART IS THE "ELEMENT
RATING SHEET" ON WHICH TWO RATERS APPRAISED BYRD'S ABILITIES IN SEVEN
CATEGORIES. THE SECOND AND THIRD PARTS ARE TWO "APPRAISAL OF POTENTIAL"
OF BYRD BY TWO OTHER SUPERVISORS IN TEN ASPECTS.
UNDER THE ORDER OF REMAND, ALL EVIDENCE PRESENTED BY THE RESPONDENT
CONCERNING BYRD'S RATINGS ON HIS ABILITIES AND POTENTIAL SHOULD BE
DISREGARDED. BUT IT SHOULD BE REMEMBERED THAT BYRD'S ABILITIES AND
POTENTIAL SHOULD BE DISREGARDED. BUT IT SHOULD BE REMEMBERED THAT
BYRD'S ABILITIES AND POTENTIAL ARE NOT ISSUES IN THIS CASE. WE DO NOT
SIT IN REVIEW OF THE RESPONDENT'S EXERCISE OF JUDGMENT IN SELECTING
CANDIDATES IN MAKING ITS PROMOTIONS. OUR TASK IS TO DETERMINE WHETHER
BYRD'S NON-PROMOTION WAS MOTIVATED, IN WHOLE OR IN PART, BY HIS UNION
ACTIVITIES. SEE PAGES 10-11 OF MY ORIGINAL REPORT AND RECOMMENDATIONS.
EXHIBIT R5 IS A PRINTED QUALITY ASSURANCE OFFICE INSTRUCTION ON
"CAREER DEVELOPMENT POLICY AND PROCEDURES FOR UNGRADED NONDESTRUCTIVE
TEST PERSONNEL (NON-NUCLEAR)." IT IS DATED MAY 26, 1972, BEFORE THE
PROMOTIONS HERE INVOLVED. NO EVIDENCE RELATED TO THIS EXHIBIT WAS GIVEN
CONSIDERATION IN REACHING ANY SIGNIFICANT FINDING OR CONCLUSION.
EXHIBIT R9 IS SIMPLY THE VACANCY ANNOUNCEMENT INCLUDING THE
QUALIFICATIONS REQUIRED. ANY EVIDENCE RELATED TO THIS EXHIBIT WOULD
PERTAIN, IF RELEVANT AT ALL, TO THE MERITS OF THE RESPONDENT'S SELECTION
OF THE SIX TO BE PROMOTED, NOT TO ITS MOTIVATION. AGAIN, THE MERITS OF
THE RESPONDENT'S SELECTION OF WHICH CANDIDATES SHOULD BE PROMOTED,-- THE
SOUNDNESS OF ITS EXERCISE OF JUDGMENT,-- ARE NOT BEFORE US.
EXHIBIT R10 IS A LISTING OF THOSE CANDIDATES FOUND "QUALIFIED" (24 OF
THEM, INCLUDING BYRD), FOUR WHO WERE FOUND "INELIGIBLE", AND ONE WHOSE
APPLICATION WAS HELD IN SUSPENSE. NO EVIDENCE RELATED TO THIS EXHIBIT
HAD ANY BEARING ON THE CONCLUSIONS I REACHED IN MY ORIGINAL REPORT AND
RECOMMENDATIONS EXCEPT MY FINDING THAT BYRD WAS FOUND QUALIFIED FOR
PROMOTION, A FINDING THAT DID NOT PREJUDICE COMPLAINANT'S CASE.
EXHIBITS R11 THROUGH R16 ARE THE SIX TABULATIONS ON EACH OF THE
ELEMENT RATING SHEETS PERTAINING TO THE SIX CANDIDATES WHO WERE SELECTED
FOR PROMOTION TO THE SIX VACANCIES. UNDER THE ORDER REMANDING THIS CASE
TO ME, I DISREGARD THE EVIDENCE OF THE RESPONDENT THAT THE SIX WHO WERE
SELECTED WERE RATED HIGHER THAN BYRD WAS RATED.
THE OTHER DOCUMENTS NOT PRODUCED PURSUANT TO THE REQUESTS ARE ONLY
DESCRIBED IN THE COMPLAINANT'S MOTION; WE KNOW NOTHING ELSE ABOUT THEM
OR EVEN WHICH OF THEM EXIST.
I HAVE EXAMINED MY ORIGINAL REPORT AND RECOMMENDATIONS IN THE LIGHT
OF THE ORDER REMANDING THE CASE TO ME, AND HAVE CONSIDERED WHAT EVIDENCE
OF RESPONDENT IS RELATED TO EXHIBITS R3, R5, AND R9 THROUGH R16 OR
RELATED TO OTHER DOCUMENTS NOT PRODUCED. BY DISREGARDING ALL SUCH
EVIDENCE, I CHANGE ONLY ONE CONCLUSION THAT MAY BE CONSIDERED
SIGNIFICANT. IN MY ORIGINAL DECISION I FOUND THAT LEWIS HAD NOTHING TO
DO WITH THE PROMOTIONS TO METALS INSPECTOR "A". I NOW FIND AND CONCLUDE
THAT HE WAS THE "SUBJECT-MATTER EXPERT" IN THOSE PROMOTIONS, I.E., HE
RATED THE VALUE OF PRIOR EXPERIENCE.
STRIPPED TO ITS BAREST ESSENTIALS, THE CASE COMES DOWN TO A
RELATIVELY SIMPLE SITUATION:
ON FEBRUARY 4, 1971, REYNOLD E. LEWIS, A SENIOR SUPERVISOR AND BYRD'S
THIRD TIER SUPERVISOR, SAID TO BYRD AFTER BYRD HAD GONE TO HIS
SUPERVISOR OVER A MATTER LEWIS THOUGHT BYRD SHOULD HAVE HANDLED WITHOUT
THE AID OF A SUPERVISOR, THAT WHEN THE TIME CAME FOR RATING METALS
INSPECTORS "B" FOR PROMOTION TO METALS INSPECTORS "A" BYRD COULD NOT BE
WELL RATED BECAUSE HE REQUIRED MORE THAN NORMAL SUPERVISION. LEWIS HAD
BEEN TOLD PRIOR TO THIS INCIDENT BY BYRD'S SUPERVISORS THAT BYRD
REQUIRED MORE THAN NORMAL SUPERVISION. BYRD AND ALFRED D. MALLOY, A
UNION STEWARD WHO WAS PRESENT, UNDERSTOOD LEWIS TO HAVE SAID BYRD
REQUIRED MORE THAN NORMAL SUPERVISION BECAUSE OF HIS UNION ACTIVITIES.
BYRD DID NOT IN FACT SAY OR MEAN TO IMPLY THAT BYRD REQUIRED MORE THAN
NORMAL SUPERVISION BECAUSE OF HIS UNION ACTIVITIES. BYRD AT THE TIME
WAS CHIEF STEWARD OF HIS UNION LOCAL. THERE IS NO OTHER INDICATION OF
ANTI-UNION ANIMUS ON THE PART OF LEWIS OR ANYONE ELSE.
NINETEEN MONTHS LATER, IN SEPTEMBER 1972, THERE WERE PROMOTIONS TO
METALS INSPECTOR "A". LEWIS WAS THE SUBJECT-MATTER EXPERT; HE
APPRAISED THE VALUE OF PRIOR EXPERIENCE. THERE WERE 24 APPLICANTS FOR
THE PROMOTION, INCLUDING BYRD. SEVENTEEN OF THE 24 WERE RATED HIGHLY
QUALIFIED, AND BYRD WAS RATED FIFTEENTH OF THE SEVENTEEN. /2/ BYRD WAS
NOT ONE OF THE SIX SELECTED BY THE SHIPYARD COMMANDER FOR PROMOTION.
THERE IS NO PERSUASIVE EVIDENCE THAT BYRD'S POSITION ON THE LIST, OR
THAT THE COMMANDER'S SELECTION OF THE SIX TO BE PROMOTED, WAS INFLUENCED
BY CONSIDERATION OF BYRD'S UNION ACTIVITIES.
THE FOREGOING CONSTITUTES AN INSUFFICIENT BASIS ON WHICH TO PREDICATE
A CONCLUSION THAT BYRD WAS NOT GIVEN A PROMOTION BECAUSE OF HIS UNION
ACTIVITIES.
THE COMPLAINT SHOULD BE DISMISSED.
DATED: MARCH 7, 1975
WASHINGTON, D.C.
/1/ EXHIBITS R3, R5, AND R9 THROUGH R16.
/2/ THIS IS ESTABLISHED BY BYRD'S OWN TESTIMONY. TR. 200.
5 A/SLMR 524; P. 403; CASE NO. 63-5261(CU); JUNE 30, 1975.
DEPARTMENT OF DEFENSE,
NATIONAL GUARD BUREAU,
TEXAS ADJUTANT GENERAL'S
DEPARTMENT,
AUSTIN, TEXAS
A/SLMR NO. 524
THIS CASE INVOLVED A PETITION FOR CLARIFICATION OF UNIT (CU) FILED BY
THE DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU, TEXAS ADJUTANT
GENERAL'S DEPARTMENT, AUSTIN, TEXAS (ACTIVITY-PETITIONER), SEEKING TO
EXCLUDE CERTAIN EMPLOYEE JOB CLASSIFICATIONS FROM THE EXISTING UNIT ON
THE GROUNDS THAT, DUE TO REORGANIZATIONS AND CHANGES SINCE THE
CERTIFICATION OF THE UNIT ON JUNE 1, 1971, THE EMPLOYEES IN THOSE JOB
CLASSIFICATIONS IN ISSUE HAVE BECOME SUPERVISORS. CONTRARY TO THE
ACTIVITY-PETITIONER, THE INCUMBENT EXCLUSIVE REPRESENTATIVE, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, TEXAS AIR NATIONAL GUARD COUNCIL OF
LOCALS, AFL-CIO, GRAND PRAIRIE, TEXAS (AFGE), CONTENDED THAT AT THE TIME
OF THE CERTIFICATION THE ACTIVITY-PETITIONER HAD NOT CHALLENGED THE
INCLUSION OF THE DISPUTED JOB CLASSIFICATIONS WHICH ENCOMPASS EMPLOYEES
WHO HAVE BEEN INCLUDED IN THE UNIT AND THAT, ALTHOUGH SEVERAL OF THE JOB
CLASSIFICATIONS HAD UNDERGONE CHANGES IN TITLE, THERE HAD BEEN NO CHANGE
IN THE DUTIES PERFORMED BY THE EMPLOYEES IN SUCH JOB CLASSIFICATIONS.
NOTING THE DUTIES AND RESPONSIBILITIES RELATED TO THE EMPLOYEE JOB
CLASSIFICATIONS IN CONTENTION WHICH INCLUDED THE EFFECTIVE
RECOMMENDATION OF THE HIRING OF EMPLOYEES, THE EFFECTIVE RECOMMENDATION
OF SUBORDINATES FOR AWARDS AND THE EFFECTIVE ADJUSTMENT OF GRIEVANCES,
THE ASSISTANT SECRETARY FOUND THAT THE EMPLOYEES IN 7 OF THE 8 JOB
CLASSIFICATIONS IN CONTENTION HAD THE INDICIA OF SUPERVISORY AUTHORITY
WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER AND, THEREFORE,
CONCLUDED THAT SUCH JOB CLASSIFICATIONS SHOULD BE EXCLUDED FROM THE
EXISTING UNIT.
WITH RESPECT TO THE JOB CLASSIFICATION OF PRODUCTION COMPTROLLER, THE
ASSISTANT SECRETARY FOUND THAT THE EMPLOYEES IN THAT JOB CLASSIFICATION
DID NOT PERFORM ANY SUPERVISORY FUNCTIONS WITHIN THE MEANING OF SECTION
SHOULD BE INCLUDED IN THE EXCLUSIVELY RECOGNIZED UNIT.
DEPARTMENT OF DEFENSE,
NATIONAL GUARD BUREAU,
TEXAS ADJUTANT GENERAL'S
DEPARTMENT,
AUSTIN, TEXAS
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, TEXAS AIR NATIONAL
GUARD COUNCIL OF LOCALS, AFL-CIO,
GRAND PRAIRIE, TEXAS
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER LLOYD F. DINSMORE.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
THE ACTIVITY-PETITIONER FILED A PETITION FOR CLARIFICATION OF UNIT
(CU) SEEKING TO EXCLUDE CERTAIN EMPLOYEE JOB CLASSIFICATIONS FROM THE
EXISTING EXCLUSIVELY RECOGNIZED UNIT ON THE GROUNDS THAT, DUE TO
REORGANIZATIONS AND CHANGES SINCE THE CERTIFICATION OF REPRESENTATIVE
WAS ISSUED ON JUNE 1, 1971, THE EMPLOYEES IN THESE JOB CLASSIFICATIONS
HAD BECOME SUPERVISORS. /1/ THE INCUMBENT EXCLUSIVE REPRESENTATIVE,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, TEXAS AIR NATIONAL GUARD
COUNCIL OF LOCALS, AFL-CIO, GRAND PRAIRIE, TEXAS, HEREIN CALLED AFGE,
CONTENDS THAT AT THE TIME OF THE CERTIFICATION, THE ACTIVITY-PETITIONER
DID NOT CHALLENGE THE INCLUSION OF THE DISPUTED JOB CLASSIFICATIONS
WHICH ENCOMPASS EMPLOYEES WHO HAVE BEEN INCLUDED IN THE UNIT AND THAT,
ALTHOUGH SEVERAL OF THE JOB CLASSIFICATIONS HAVE UNDERGONE CHANGES IN
TITLE, THERE HAS BEEN NO CHANGE IN THE DUTIES PERFORMED BY THE EMPLOYEES
IN SUCH JOB CLASSIFICATIONS. /2/
THE ACTIVITY-PETITIONER SEEKS TO EXCLUDE THE FOLLOWING EIGHT JOB
CLASSIFICATIONS FROM THE EXISTING UNIT: SUPERVISORY MANAGEMENT
ASSISTANT, GS-8; GENERAL SUPPLY ASSISTANT, GS-7 (MATERIAL CONTROL
SUPERVISOR); PRODUCTION CONTROLLER, GS-9; SUPPLY TECHNICIAN, GS-6;
GENERAL SUPPLY ASSISTANT, GS-7 (ITEM ACCOUNTING SUPERVISOR); PURCHASING
AGENT, GS-8; TRAINING TECHNICIAN, GS-8; AND HEALTH TECHNICIAN, GS-9.
THE EMPLOYEES IN THESE JOB CLASSIFICATIONS ARE STATIONED AT ONE OF THE
FOLLOWING THREE BASES OPERATED BY THE ACTIVITY: ELLINGTON AIR FORCE
BASE, HOUSTON, TEXAS; HENSLEY FIELD, DALLAS, TEXAS; OR KELLEY AIR
FORCE BASE, SAN ANTONIO, TEXAS.
SUPERVISORY MANAGEMENT ASSISTANT
THE INCUMBENT IS RESPONSIBLE FOR PLANNING, ORGANIZING, DIRECTING, AND
CONTROLLING THE MAINTENANCE ANALYSIS ACTIVITY AT THE ELLINGTON AIR FORCE
BASE AND HAS TWO SUBORDINATES WITH WHOM HE WORKS CLOSELY. THE RECORD
INDICATES THAT HIS JOB DESCRIPTION GIVES THE INCUMBENT THE AUTHORITY TO,
AND HE HAS IN FACT, INTERVIEWED AND EFFECTIVELY RECOMMENDED THE HIRING
OF EMPLOYEES. HE ALSO HAS THE AUTHORITY TO RECOMMEND EMPLOYEES FOR
AWARDS AND, IN THIS REGARD, THE RECORD INDICATES THAT HE HAS EFFECTIVELY
RECOMMENDED HIS SUBORDINATES FOR AWARDS.
UNDER THESE CIRCUMSTANCES, I FIND THAT THE EMPLOYEE IN THIS JOB
CLASSIFICATION IS A SUPERVISOR WITHIN THE MEANING OF SECTION 2(C) OF THE
EXECUTIVE ORDER AND, THEREFORE, SHOULD BE EXCLUDED FROM THE EXCLUSIVELY
RECOGNIZED UNIT.
GENERAL SUPPLY ASSISTANT (MATERIAL CONTROL SUPERVISOR)
THE INCUMBENTS ARE RESPONSIBLE FOR OVERSEEING THE OVERALL SUPPLY
OPERATION RELATIVE TO EQUIPMENT, PARTS AND SPACE AS IT AFFECTS
MAINTENANCE. THERE ARE TWO EMPLOYEES IN THIS JOB CLASSIFICATION - ONE
LOCATED AT THE ELLINGTON AIR FORCE BASE AND THE OTHER AT HENSLEY FIELD.
EACH INCUMBENT HAS TWO SUBORDINATES WITH WHOM HE WORKS CLOSELY. THE
RECORD INDICATES THAT IN THEIR JOB DESCRIPTION THE INCUMBENTS ARE GIVEN
THE AUTHORITY TO INTERVIEW AND RECOMMEND HIRING OF EMPLOYEES. IN THIS
REGARD, THE EVIDENCE ESTABLISHES THAT THE INCUMBENTS HAVE EFFECTIVELY
RECOMMENDED THAT SPECIFIC EMPLOYEES BE HIRED.
UNDER THESE CIRCUMSTANCES, I FIND THAT THE EMPLOYEES IN THE ABOVE JOB
CLASSIFICATION PERFORM SUPERVISORY FUNCTIONS WITHIN THE MEANING OF
SECTION 2(C) OF THE EXECUTIVE ORDER AND, THEREFORE, SHOULD BE EXCLUDED
FROM THE EXCLUSIVELY RECOGNIZED UNIT.
PRODUCTION CONTROLLER.
THE INCUMBENT IS RESPONSIBLE FOR, AMONG OTHER THINGS, SCHEDULING FOR
INSPECTION, FLYING SCHEDULES, AND DEBRIEFINGS. THERE IS ONE EMPLOYEE IN
THIS JOB CLASSIFICATION LOCATED AT THE ELLINGTON AIR FORCE BASE. THE
INCUMBENT HAS FIVE SUBORDINATES ASSIGNED TO HIM BUT, BECAUSE OF THE
MANNER IN WHICH HIS OPERATION FUNCTIONS, HE IS INVOLVED DIRECTLY WITH
ONLY TWO SUBORDINATES. THE EVIDENCE ESTABLISHES THAT THE INCUMBENT HAS
NEVER INTERVIEWED A JOB APPLICANT NOR RECOMMENDED THAT AN APPLICANT BE
HIRED. FURTHER, HE HAS NEVER RECOMMENDED AN EMPLOYEE FOR AN AWARD NOR
ADJUSTED EMPLOYEE GRIEVANCES. THE INCUMBENT WORKS CLOSELY WITH HIS
SUBORDINATES AND, ALTHOUGH HE ASSIGNS THEM WORK, THE RECORD REVEALS THAT
SUCH ASSIGNMENTS ARE ROUTINE IN NATURE.
UNDER THESE CIRCUMSTANCES, AND NOTING THAT THE RECORD REFLECTS THAT
THE EMPLOYEE IN THE ABOVE JOB CLASSIFICATION DOES NOT PERFORM ANY
SUPERVISORY FUNCTIONS WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER, I
FIND THAT THE EMPLOYEE IN THIS JOB CLASSIFICATION IS NOT A SUPERVISOR
WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER AND, THEREFORE, SHOULD
BE INCLUDED IN THE EXCLUSIVELY RECOGNIZED UNIT.
SUPPLY TECHNICIAN
THE INCUMBENT IS CONCERNED PRIMARILY WITH THE ACCOUNTING, ISSUANCE
AND RECEIPT OF FUEL, AND THE COORDINATION OF LOADING OF AIRCRAFT AT
HENSLEY FIELD. THERE IS ONE EMPLOYEE IN THIS JOB CLASSIFICATION WHO HAS
TWO SUBORDINATES WITH WHOM HE WORKS CLOSELY. THE EVIDENCE ESTABLISHES
THAT THE INCUMBENT HANDLES EMPLOYEES' GRIEVANCES AND, THROUGH HIS
EFFORTS, GRIEVANCES HAVE BEEN ADJUSTED AT HIS LEVEL.
UNDER THESE CIRCUMSTANCES, AND NOTING THAT THE RECORD REFLECTS THAT
THE INCUMBENT HAS EFFECTIVELY ADJUSTED GRIEVANCES, I FIND THAT THE
EMPLOYEE IN THE ABOVE JOB CLASSIFICATION IS A SUPERVISOR WITHIN THE
MEANING OF SECTION 2(C) OF THE EXECUTIVE ORDER AND, THEREFORE, SHOULD BE
EXCLUDED FROM THE EXCLUSIVELY RECOGNIZED UNIT.
GENERAL SUPPLY ASSISTANT (UNIT ACCOUNTING SUPERVISOR)
THE INCUMBENT IS RESPONSIBLE FOR MAINTAINING THE SUPPLY PUBLICATIONS
FOR THE SUPPLY COMPLEX AND FOR IDENTIFYING PARTS SO THAT THEY CAN BE
PROCURED. THERE ARE THREE EMPLOYEES IN THIS JOB CLASSIFICATION - ONE
LOCATED AT THE ELLINGTON AIR FORCE BASE; ONE AT HENSLEY FIELD; AND ONE
AT THE KELLY AIR FORCE BASE. EACH INCUMBENT HAS TWO SUBORDINATES WHO
HAVE BEEN ADVISED BY THE HEAD OF MAINTENANCE THAT THE INCUMBENT IS THEIR
SUPERVISOR. THE EVIDENCE ESTABLISHES THAT THE INCUMBENTS HAVE
EFFECTIVELY RECOMMENDED SUBORDINATES FOR AWARDS.
UNDER THESE CIRCUMSTANCES, I FIND THAT THE EMPLOYEES IN THE ABOVE JOB
CLASSIFICATION ARE SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE
EXECUTIVE ORDER AND, THEREFORE, SHOULD BE EXCLUDED FROM THE EXCLUSIVELY
RECOGNIZED UNIT.
PURCHASING AGENT
THE INCUMBENT IS RESPONSIBLE FOR PURCHASING REQUIRED ITEMS WHICH ARE
NOT LISTED IN THE REGULAR FEDERAL SUPPLY SYSTEM AND FOR ENGAGING
SERVICES AND ISSUING CONTRACTS FOR SUCH ITEMS. THERE ARE THREE
EMPLOYEES IN THIS JOB CLASSIFICATION - ONE LOCATED AT THE ELLINGTON AIR
FORCE BASE; ONE AT HENSLEY FIELD; AND ONE AT THE KELLY AIR FORCE BASE.
EACH INCUMBENT HAS ONE SUBORDINATE. THE RECORD INDICATES THAT THE
INCUMBENTS HAVE EFFECTIVELY RECOMMENDED THE HIRING OF EMPLOYEES, HAVE
EFFECTIVELY RECOMMENDED SUBORDINATES FOR AWARDS, AND HAVE EFFECTIVELY
ADJUSTED GRIEVANCES INSTITUTED BY THEIR SUBORDINATES.
UNDER THESE CIRCUMSTANCES, I FIND THAT THE EMPLOYEES IN THE ABOVE JOB
CLASSIFICATION ARE SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE
EXECUTIVE ORDER AND, THEREFORE, SHOULD BE EXCLUDED FROM THE EXCLUSIVELY
RECOGNIZED UNIT.
TRAINING TECHNICIAN
THE INCUMBENT ADMINISTERS A TRAINING AND EDUCATION PROGRAM, HANDLES
CLASSIFICATION UPGRADING AND ASSIGNMENT ACTIONS, AND MAINTAINS HUMAN
RELIABILITY PROGRAMS. THERE ARE THREE EMPLOYEES IN THIS JOB
CLASSIFICATION - ONE LOCATED AT THE ELLINGTON AIR FORCE BASE; ONE AT
HENSLEY FIELD; AND ONE AT THE KELLY AIR FORCE BASE. EACH INCUMBENT HAS
ONE SUBORDINATE. THE RECORD INDICATES THAT THE TRAINING TECHNICIANS'
JOB CLASSIFICATION GIVES AN INCUMBENT THE AUTHORITY TO INITIATE ANY
PERSONNEL ACTION REQUIRED. IN THIS REGARD, THE EVIDENCE ESTABLISHES
THAT THE INCUMBENTS HAVE EFFECTIVELY RECOMMENDED THEIR SUBORDINATES FOR
INCENTIVE AWARDS.
UNDER THESE CIRCUMSTANCES, I FIND THAT THE EMPLOYEES IN THE ABOVE JOB
CLASSIFICATION ARE SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE
EXECUTIVE ORDER AND, THEREFORE, SHOULD BE EXCLUDED FROM THE EXCLUSIVELY
RECOGNIZED UNIT.
HEALTH TECHNICIAN
THE INCUMBENT IS RESPONSIBLE FOR OPERATING A HEALTH MAINTENANCE UNIT
TO PROVIDE DAILY MEDICAL SERVICE FOR THE PERMANENT TECHNICIAN WORK
FORCE. THERE ARE THREE EMPLOYEES IN THIS JOB CLASSIFICATION - ONE
LOCATED AT THE ELLINGTON AIR FORCE BASE; ONE AT HENSLEY FIELD; AND ONE
AT THE KELLY AIR FORCE BASE. EACH INCUMBENT HAS ONE SUBORDINATE. THE
RECORD INDICATES THAT THE INCUMBENTS IN THIS JOB CLASSIFICATION HAVE THE
AUTHORITY TO RECOMMEND EFFECTIVELY THE HIRING OF EMPLOYEES AND TO
RECOMMEND EFFECTIVELY THEIR SUBORDINATES FOR INCENTIVE AWARDS.
UNDER THESE CIRCUMSTANCES, I FIND THAT THE EMPLOYEES IN THE ABOVE JOB
CLASSIFICATION ARE SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE
EXECUTIVE ORDER AND, THEREFORE, SHOULD BE EXCLUDED FROM THE EXCLUSIVELY
RECOGNIZED UNIT.
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, FOR
WHICH AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, TEXAS AIR NATIONAL
GUARD COUNCIL OF LOCALS, AFL-CIO, GRAND PRAIRIE, TEXAS, WAS CERTIFIED ON
JUNE 1, 1971, BE, AND HEREIN IS, CLARIFIED BY INCLUDING IN SAID UNIT THE
POSITION CLASSIFIED AS PRODUCTION CONTROLLER AND BY EXCLUDING FROM SAID
UNIT THE POSITIONS CLASSIFIED AS SUPERVISORY MANAGEMENT ASSISTANT, GS-8;
GENERAL SUPPLY ASSISTANT (MATERIAL CONTROL SUPERVISOR) GS-7; SUPPLY
TECHNICIAN, GS-6; GENERAL SUPPLY ASSISTANT (ITEM ACCOUNTING
SUPERVISOR), GS-7; PURCHASING AGENT, GS-8; TRAINING TECHNICIAN, GS-8;
AND HEALTH TECHNICIAN, GS-9.
DATED, WASHINGTON, D.C.
JUNE 30, 1975
/1/ AT THE HEARING, THE ACTIVITY-PETITIONER AMENDED ITS PETITION
LIMITING TO EIGHT THE NUMBER OF JOB CLASSIFICATIONS IT SEEKS TO EXCLUDE
FROM THE UNIT.
/2/ THE AFGE WAS CERTIFIED ON JUNE 1, 1971, AS THE EXCLUSIVE
REPRESENTATIVE OF A UNIT OF ALL TEXAS AIR NATIONAL GUARD TECHNICIANS.
5 A/SLMR 523; P. 377; CASE NOS. 63-4716(CA), 63-4717(CA),
63-4718(CA), 63-4719(CA), 63-4720(CA), 63-4815(CA), 63-4722(CA) AND
63-4760(CA); JUNE 24, 1975.
VETERANS ADMINISTRATION,
VETERANS ADMINISTRATION DATA PROCESSING CENTER,
AUSTIN, TEXAS
AND
VETERANS ADMINISTRATION,
DEPARTMENT OF DATA MANAGEMENT,
WASHINGTON, D.C.
A/SLMR NO. 523
THIS MATTER AROSE UPON THE FILING OF EIGHT UNFAIR LABOR PRACTICE
COMPLAINTS BY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, IND., LOCAL
1745 (NFFE).
ONE COMPLAINT INVOLVED THREE SEPARATE ALLEGATIONS THAT THE RESPONDENT
VETERANS ADMINISTRATION DATA PROCESSING CENTER (DPC) VIOLATED SECTION
19(A)(1) AND (2) OF THE ORDER. IN ITS FIRST ALLEGATION, THE NFFE
ALLEGED THAT A SUPERVISOR HAD PLACED A DISCRIMINATORY REQUIREMENT ON A
NFFE STEWARD, THAT SHE CONTACT HIM WHENEVER SHE LEFT THE PROJECT, EVEN
WHEN THE REASON FOR HER ABSENCE WAS WORK-RELATED. THE DPC ARGUED THAT
AS THE MATTER WAS RESOLVED WITHIN A FEW DAYS THERE SHOULD BE NO
VIOLATION FOUND, OR, IF A VIOLATION WERE FOUND, THERE SHOULD BE NO
REMEDY REQUIRED. THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE DPC'S
CONDUCT CONSTITUTED ADVERSE DISPARATE TREATMENT TOWARD THE STEWARD IN
VIOLATION OF SECTION 19(A)(1) OF THE ORDER. HE ALSO FOUND THAT THE
REQUIREMENT CONSTITUTED DISCRIMINATION REGARDING A WORKING CONDITION
AND, THUS, VIOLATED SECTION 19(A)(2). MOREOVER, HE CONCLUDED THAT THE
DPC'S CONDUCT WAS NOT ISOLATED, DE MINIMUS OR FULLY REMEDIED AND, THUS,
A REMEDIAL ORDER WAS REQUIRED. THE ASSISTANT SECRETARY ADOPTED THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDATION THAT THE DPC'S CONDUCT WAS
VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER. HOWEVER, CONTRARY TO THE
ADMINISTRATIVE LAW JUDGE, THE ASSISTANT SECRETARY FOUND THAT THE
REQUIREMENT DID NOT CONSTITUTE A VIOLATION OF SECTION 19(A)(2) OF THE
ORDER AS THERE WAS NO EVIDENCE ADDUCED THAT THE STEWARD WAS, IN FACT,
REQUIRED TO COMPLY WITH THE REPORTING REQUIREMENT. IN ITS SECOND
ALLEGATION, THE NFFE CONTENDED THAT WHEN THE SUPERVISOR READ A
MEMORANDUM TO EMPLOYEES REGARDING AN EQUAL EMPLOYMENT OPPORTUNITY (EEO)
COMPLAINT FILED BY THE NFFE, HE WAS ATTEMPTING TO DISCREDIT THE NFFE BY
BREAKING THE CONFIDENTIALITY OF THE MEMORANDUM. IN THIS REGARD, THE
SUPERVISOR ADMITTED READING THE MEMORANDUM TO EMPLOYEES BECAUSE HIS
SECRETARY, WHO WAS MENTIONED IN THE MEMORANDUM, HAD TOLD HIM THAT THE
NFFE HAD NOT ASKED HER PERMISSION BEFORE USING HER NAME IN THE EEO
COMPLAINT. THE ASSISTANT SECRETARY ADOPTED THE ADMINISTRATIVE LAW
JUDGE'S FINDING OF VIOLATION OF SECTION 19(A)(1) ON THE BASIS THAT THE
READING OF THE MEMORANDUM TO THE EMPLOYEES CONVEYED TO THEM THAT A LOW
PROMOTIONAL APPRAISAL GIVEN THE NFFE STEWARD BY HER SUPERVISOR AND THE
SUPERVISOR'S REQUIREMENT THAT SHE TAKE A JOB-RELATED EXAMINATION AGAINST
HER WISHES WERE BOTH RELATED TO HER UNION ACTIVITIES. IN THIS REGARD,
THE ASSISTANT SECRETARY AGREED WITH THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDATION THAT THIS ALLEGATION SHOULD BE DISMISSED BASED ON THE
NFEE'S FAILURE TO MEET ITS BURDEN OF PROOF.
A SECOND COMPLAINT CHARGED THE DPC WITH A SECTION 19(A)(1) AND (2)
VIOLATION BASED ON MANAGEMENT'S ALLEGED PROMOTION OF A DECERTIFICATION
PETITION BY ALLOWING THE USE OF ITS MAIL ROUTING SYSTEM FOR DISTRIBUTION
OF THE PETITION. SPECIFICALLY, THE NFFE CHARGED THAT AN ALLEGED
SUPERVISOR SPONSORED THE DECERTIFICATION PETITION AND THAT OTHER DPC
SUPERVISORS FAILED TO PREVENT USE OF THE MAIL SYSTEM AND FAILED TO
PREVENT THEIR EMPLOYEES FROM ENGAGING IN DECERTIFICATION ACTIVITIES ON
DUTY TIME. THE ADMINISTRATIVE LAW JUDGE FOUND FIRST THAT THE ALLEGED
SUPERVISOR INVOLVED WAS, IN FACT, A SUPERVISOR WITHIN THE MEANING OF
SECTION 2(C) OF THE ORDER. THEREFORE, HE FOUND THAT THE SUPERVISOR'S
ADMITTED PARTICIPATION AS A SPONSOR IN THE DECERTIFICATION EFFORT
CONSTITUTED A VIOLATION OF SECTION 19(A)(1) OF THE ORDER. WITH REGARD
TO THE ALLEGATIONS THAT OTHER SUPERVISORS FAILED BOTH TO PREVENT USE OF
THE INTERNAL MAIL SYSTEM FOR THE DISTRIBUTION OF DECERTIFICATION
LITERATURE AND DUTY TIME DECERTIFICATION ACTIVITY BY EMPLOYEES, THE
ADMINISTRATIVE LAW JUDGE RECOMMENDED DISMISSAL OF THESE ALLEGATIONS OF
THE COMPLAINT AS, IN HIS VIEW, THE COMPLAINANT DID NOT MEET ITS BURDEN
OF PROOF. HOWEVER, NOTING THE FACT THAT AT LEAST SOME PETITIONS WERE
RETURNED THROUGH THE INTERNAL MAIL SYSTEM AND THE FACT THAT THE NFFE WAS
NOT AT THAT TIME PERMITTED THE USE OF SUCH INTERNAL MAIL SYSTEM, THE
ADMINISTRATIVE LAW JUDGE FOUND THAT THE DPC VIOLATED SECTION 19(A)(1) BY
NOT TAKING ADEQUATE MEASURES TO DISASSOCIATE ITSELF FROM THE IMPLICATION
THAT IT WAS LENDING SUPPORT TO THE DECERTIFICATION EFFORT THROUGH THE
USE OF ITS MAIL SERVICE TO RETURN THE SIGNED DECERTIFICATION PETITIONS.
WITH RESPECT TO THE ALLEGED SECTION 19(A)(2) VIOLATION, THE
ADMINISTRATIVE LAW JUDGE CONCLUDED THAT DISCRIMINATION WITH REGARD TO A
CONDITION OF EMPLOYMENT HAD NOT BEEN SHOWN, AND HE, THEREFORE,
RECOMMENDED THAT THE ALLEGATION BE DISMISSED. THE ASSISTANT SECRETARY
ADOPTED THE FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE
ADMINISTRATIVE LAW JUDGE WITH REGARD TO THESE UNFAIR LABOR PRACTICE
COMPLAINTS.
THE ADMINISTRATIVE LAW JUDGE CONSIDERED TWO ADDITIONAL COMPLAINTS
TOGETHER AS THEY INVOLVED THE SAME ISSUE. IN BOTH CASES- THE NFFE
CONTENDED THAT EMPLOYEES IT ALLEGED TO BE SUPERVISORS WERE ENGAGED IN
DECERTIFICATION ACTIVITIES IN VIOLATION OF SECTION 19(A)(1) OF THE
ORDER. THE ADMINISTRATIVE LAW JUDGE FOUND THAT NEITHER OF THE EMPLOYEES
MET THE SECTION 2(C) DEFINITION OF A SUPERVISOR AND, THEREFORE, HE
RECOMMENDED DISMISSAL OF THESE UNFAIR LABOR PRACTICE COMPLAINTS. THE
ASSISTANT SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS AND RECOMMENDATION
OF THE ADMINISTRATIVE LAW JUDGE WITH RESPECT TO THESE TWO UNFAIR LABOR
PRACTICE COMPLAINTS.
IN ANOTHER UNFAIR LABOR PRACTICE COMPLAINT, THE NFFE ALLEGED THAT THE
DPC VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER WHEN ITS SUPERVISOR
CAUSED TO BE CIRCULATED AMONG THE EMPLOYEES A MEMORANDUM ENTITLED
"STATUS OF AGREEMENT WITH NFFE LOCAL 1745." CITING DEPARTMENT OF THE
NAVY, NAVAL AIR STATION, FALLON, NEVADA, A/SLMR NO. 432, THE
ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE ACTIVITY'S DIRECT
COMMUNICATION WITH UNIT EMPLOYEES RELATING TO THE PARTIES' POSITIONS ON
THE STATUS OF NEGOTIATIONS WAS VIOLATIVE OF SECTION 19(A)(1) AND (6) OF
THE ORDER. HE NOTED, IN THIS REGARD, THAT THERE WAS NO MUTUAL AGREEMENT
BETWEEN THE PARTIES CONCERNING THE DPC'S RIGHT TO COMMUNICATE DIRECTLY
WITH UNIT EMPLOYEES OVER THIS MATTER, AND NO EVIDENCE WAS PRESENTED THAT
THERE WAS IN EXISTENCE A PAST PRACTICE OF SUCH DIRECT COMMUNICATION WITH
UNIT EMPLOYEES. THE ASSISTANT SECRETARY ADOPTED THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION IN THIS REGARD.
THE ADMINISTRATIVE LAW JUDGE CONSIDERED THE FINAL TWO UNFAIR LABOR
PRACTICE COMPLAINTS TOGETHER AS THEY BOTH WERE RELATED TO THE STATUS OF
AN AUDITOR EMPLOYED BY THE RESPONDENT, VETERANS ADMINISTRATION,
DEPARTMENT OF DATA MANAGEMENT, WASHINGTON, D.C. (DMD), BUT WHO WORKED IN
HIS CAPACITY AS AN AUDITOR AT THE AUSTIN DATA PROCESSING CENTER. IN THE
FIRST CASE, THE NFFE CONTENDED THAT THE DMD VIOLATED SECTION 19(A)(1) OF
THE ORDER BY CERTAIN ALLEGED DECERTIFICATION ACTIVITY BY THE AUDITOR WHO
THE NFFE CONTENDED HAD A SPECIAL STATUS BY VIRTUE OF HIS AUDITOR DUTIES.
IN THE SECOND CASE, THE NFFE ASSERTED THAT THE DMD VIOLATED SECTION
19(A)(1) AND (2) BASED ON ALLEGED STATEMENTS BY THE AUDITOR WHICH WERE
CALCULATED TO DISCREDIT THE NFFE'S PRESIDENT. THE ASSISTANT SECRETARY
ADOPTED THE ADMINISTRATIVE LAW JUDGE'S FINDING THAT, BASED ON THE
EVIDENCE ADDUCED AT THE HEARING, THE AUDITOR DID NOT POSSESS ANY INDICIA
OF SUPERVISORY OR MANAGERIAL AUTHORITY WITHIN THE MEANING OF THE ORDER,
AND THAT IT WAS NOT ESTABLISHED THAT, BY VIRTUE OF HIS DUTIES AND
RESPONSIBILITIES HE POSSESSED ANY SPECIAL STATUS WHICH WOULD PRECLUDE
HIM FROM PARTAKING IN ANY OF THE ALLEGED CONDUCT SET FORTH IN THE UNFAIR
LABOR PRACTICE COMPLAINTS. ACCORDINGLY, THE ASSISTANT SECRETARY AGREED
WITH THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DISMISSAL OF THESE
COMPLAINTS.
VETERANS ADMINISTRATION,
VETERANS ADMINISTRATION DATA PROCESSING CENTER,
AUSTIN, TEXAS
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, IND., LOCAL 1745
VETERANS ADMINISTRATION,
DEPARTMENT OF DATA MANAGEMENT,
WASHINGTON, D.C.
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, IND., LOCAL 1745
ON FEBRUARY 7, 1975, ADMINISTRATIVE LAW JUDGE SALVATORE J. ARRIGO
ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
PROCEEDING, FINDING THAT THE RESPONDENT, VETERANS ADMINISTRATION DATA
PROCESSING CENTER, AUSTIN, TEXAS, HAD ENGAGED IN CERTAIN UNFAIR LABOR
PRACTICES AND RECOMMENDING THAT IT TAKE CERTAIN AFFIRMATIVE ACTIONS AS
SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER. THE ADMINISTRATIVE LAW JUDGE FOUND OTHER ALLEGED
CONDUCT OF THE RESPONDENT DATA PROCESSING CENTER NOT TO BE VIOLATIVE OF
THE ORDER AND THAT THE RESPONDENT, VETERANS ADMINISTRATION, DEPARTMENT
OF DATA MANAGEMENT, WASHINGTON, D.C., HAD NOT ENGAGED IN ANY OF THE
ALLEGED UNFAIR LABOR PRACTICES. THEREAFTER, THE PARTIES FILED
EXCEPTIONS AND SUPPORTING BRIEFS WITH RESPECT TO THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER.
THE ASSISTANT SECRETARY 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 CASES, INCLUDING THE PARTIES'
EXCEPTIONS AND SUPPORTING BRIEFS, I HEREBY ADOPT THE FINDINGS /1/ ,
CONCLUSIONS /2/ AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE,
ONLY TO THE EXTENT CONSISTENT HEREWITH.
THE ADMINISTRATIVE LAW JUDGE FOUND, AMONG OTHER THINGS, THAT THE
RESPONDENT DATA PROCESSING CENTER VIOLATED SECTION 19(A)(1) AND (2) OF
THE ORDER WHEN ITS SUPERVISOR CHARLES WILSON TOLD UNION STEWARD MARTHA
BOEHM THAT SHE WOULD BE REQUIRED TO INFORM HIM WHENEVER SHE WAS TO LEAVE
THE PAID PROJECT. WHILE I AGREE THAT, UNDER THE PARTICULAR
CIRCUMSTANCES HEREIN, SUCH CONDUCT WAS VIOLATIVE OF SECTION 19(A)(1), I
FIND THAT FURTHER PROCEEDINGS UNDER SECTION 19(A)(2) ARE UNWARRANTED.
THUS, NO EVIDENCE WAS ADDUCED THAT UNION STEWARD BOEHM WAS, IN FACT,
REQUIRED TO COMPLY WITH THIS REPORTING REQUIREMENT. /3/ ACCORDINGLY, I
SHALL DISMISS THE SECTION 19(A)(2) ASPECT OF THE COMPLAINT IN CASE NO.
63-4716(CA).
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE VETERANS
ADMINISTRATION, VETERANS ADMINISTRATION DATA PROCESSING CENTER, AUSTIN,
TEXAS, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING, OR COERCING UNION STEWARD MARTHA
BOEHM, OR ANY OTHER UNION STEWARD, IN THE EXERCISE OF THEIR RIGHT TO
ASSIST A LABOR ORGANIZATION.
(B) REVEALING TO UNIT EMPLOYEES CONFIDENTIAL OR PERSONAL INFORMATION
RECEIVED IN THE COURSE OF LABOR-MANAGEMENT DEALINGS WITH THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, IND., LOCAL 1745, THE EMPLOYEES'
EXCLUSIVE REPRESENTATIVE, WHERE THE EFFECT IS TO DISSUADE EMPLOYEES FROM
CONSULTING WITH THE UNION OR SEEKING THE UNION'S ASSISTANCE.
(C) READING TO EMPLOYEES, OR CIRCULATING AMONG EMPLOYEES FOR THEIR
READING, COMMUNICATIONS PERTAINING TO THE COLLECTIVE BARGAINING
RELATIONSHIP BETWEEN THE VETERANS ADMINISTRATION, VETERANS
ADMINISTRATION DATA PROCESSING CENTER, AUSTIN, TEXAS, AND THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, IND., LOCAL 1745, THE EMPLOYEES'
EXCLUSIVE REPRESENTATIVE, UNLESS THERE EXISTS A MUTUAL AGREEMENT TO
PERMIT SUCH ACTION.
(D) PARTAKING IN, OR LEADING SUPPORT TO, AN EFFORT TO DECERTIFY THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, IND., LOCAL 1745, THE
EMPLOYEES' EXCLUSIVE REPRESENTATIVE.
(E) FAILING TO TAKE TIMELY AND ADEQUATE MEASURES TO DISASSOCIATE THE
VETERANS ADMINISTRATION, VETERANS ADMINISTRATION DATA PROCESSING CENTER,
AUSTIN, TEXAS, FROM THE IMPLICATION THAT IT SUPPORTS THE DECERTIFICATION
OF THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, IND., LOCAL 1745, THE
EMPLOYEES' EXCLUSIVE REPRESENTATIVE, BY ALLOWING THE USE OF ITS INTERNAL
MAIL DISTRIBUTION SERVICE IN FURTHERANCE OF A DECERTIFICATION EFFORT.
(F) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) POST AT ITS FACILITY AT VETERANS ADMINISTRATION DATA PROCESSING
CENTER, AUSTIN, TEXAS, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX"
ON FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE
SIGNED BY THE DIRECTOR, VETERANS ADMINISTRATION, VETERANS ADMINISTRATION
DATA PROCESSING CENTER, AUSTIN, TEXAS, AND THEY 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 DIRECTOR SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE COMPLAINTS IN CASE NOS. 63-4718(CA),
63-4719(CA), 63-4720(CA), 63-4722(CA) AND 63-4760(CA) BE, AND THEY
HEREBY ARE, DISMISSED IN THEIR ENTIRETY, AND THAT THE COMPLAINT IN CASE
NO. 63-4716(CA), INSOFAR AS IT ALLEGES A VIOLATION OF SECTION 19(A)(2)
OF THE ORDER, BE, AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 24, 1975
/1/ WITH RESPECT TO THE ADOPTION OF THE ADMINISTRATIVE LAW JUDGE'S
CREDIBILITY FINDINGS, SEE NAVY EXCHANGE, U.S. NAVAL AIR STATION, QUONSET
POINT, RHODE ISLAND, A/SLMR NO. 180.
/2/ ON PAGE 27 OF HIS RECOMMENDED DECISION AND ORDER AT FOOTNOTE 44,
THE ADMINISTRATIVE LAW JUDGE INADVERTENTLY OMITTED THE CITATION A/SLMR
NO. 100 IN CITING THE DECISION OF THE ASSISTANT SECRETARY IN GENERAL
SERVICES ADMINISTRATION, MEMPHIS, TENNESSEE. THIS INADVERTENCE IS
HEREBY CORRECTED.
/3/ CF. ARMY AND AIR FORCE EXCHANGE SERVICE, VANDENBERG AIR FORCE
BASE, CALIFORNIA, A/SLMR NO. 437, AT FOOTNOTE 3.
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE UNION STEWARD MARTHA
BOEHM, OR ANY OTHER UNION STEWARD, IN THE EXERCISE OF THEIR RIGHT TO
ASSIST A LABOR ORGANIZATION.
WE WILL NOT REVEAL TO UNIT EMPLOYEES CONFIDENTIAL OR PERSONAL
INFORMATION RECEIVED IN THE COURSE OF LABOR-MANAGEMENT DEALINGS WITH THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, IND., LOCAL 1745, THE
EMPLOYEES' EXCLUSIVE REPRESENTATIVE, WHERE THE EFFECT IS TO DISSUADE
EMPLOYEES FROM CONSULTING WITH THE UNION OR SEEKING THE UNION'S
ASSISTANCE.
WE WILL NOT READ TO EMPLOYEES, OR CIRCULATE AMONG EMPLOYEES FOR THEIR
READING, COMMUNICATIONS PERTAINING TO THE COLLECTIVE BARGAINING
RELATIONSHIP BETWEEN THE VETERANS ADMINISTRATION, VETERANS
ADMINISTRATION DATA PROCESSING CENTER, AUSTIN, TEXAS, AND THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, IND., LOCAL 1745, THE EMPLOYEES'
EXCLUSIVE REPRESENTATIVE, UNLESS THERE EXISTS A MUTUAL AGREEMENT TO
PERMIT SUCH ACTION.
WE WILL NOT PARTAKE IN, OR LEND SUPPORT TO, AN EFFORT TO DECERTIFY
THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, IND., LOCAL 1745, THE
EMPLOYEES' EXCLUSIVE REPRESENTATIVE.
WE WILL NOT FAIL TO TAKE TIMELY AND ADEQUATE MEASURES TO DISASSOCIATE
THE VETERANS ADMINISTRATION, VETERANS ADMINISTRATION DATA PROCESSING
CENTER, AUSTIN, TEXAS, FROM THE IMPLICATION THAT IT SUPPORTS THE
DECERTIFICATION OF THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, IND.,
LOCAL 1745, THE EMPLOYEE'S EXCLUSIVE REPRESENTATIVE, BY ALLOWING THE USE
OF ITS INTERNAL MAIL DISTRIBUTION SERVICE IN FURTHERANCE OF A
DECERTIFICATION EFFORT.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
DATED
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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR, WHOSE ADDRESS IS: 2200 FEDERAL OFFICE BUILDING, 911 WALNUT
STREET, KANSAS CITY, MISSOURI 64106.
IN THE MATTER OF
VETERANS ADMINISTRATION
VETERANS ADMINISTRATION DATA PROCESSING CENTER
AUSTIN, TEXAS
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, IND.
LOCAL 1745
AND
VETERANS ADMINISTRATION
DEPARTMENT OF DATA MANAGEMENT
WASHINGTON, D.C.
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, IND.
LOCAL 1745
STEPHEN L. SCHOCHET, ESQUIRE
OFFICE OF THE GENERAL COUNSEL
VETERANS ADMINISTRATION
810 VERMONT AVENUE, N.W.
WASHINGTON, D.C. 20420
NORMAN E. JACOBS, ESQUIRE
LABOR RELATIONS SPECIALIST
OFFICE OF PERSONNEL
VETERANS ADMINISTRATION
810 VERMONT AVENUE, N.W.
WASHINGTON, D.C. 20420
TED MYATT, ESQUIRE
CHIEF ATTORNEY
WACO VETERANS ADMINISTRATION
REGIONAL OFFICE
1400 NORTH VALLEY MILLS
WACO, TEXAS, 76710
JANET COOPER, ESQUIRE
STAFF ATTORNEY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, IND.
1737 H STREET, N.W.
WASHINGTON, D.C. 20006
BEFORE: SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
THESE PROCEEDINGS, HEARD IN AUSTIN, TEXAS ON MAY 13, 14, 15, AND 16,
1974, ARISE UNDER EXECUTIVE ORDER 11491, AS AMENDED (HEREAFTER CALLED
THE ORDER). PURSUANT TO THE REGULATIONS OF THE ASSISTANT SECRETARY FOR
LABOR-MANAGEMENT RELATIONS (HEREAFTER CALLED THE ASSISTANT SECRETARY),
AN AMENDED NOTICE OF HEARING ON COMPLAINT AND AN AMENDED ORDER
CONSOLIDATING CASES ISSUED ON APRIL 26, 1974, WITH REFERENCE TO ALLEGED
VIOLATIONS OF SECTION 19(A)(1), (2) AND (6) OF THE ORDER AS SET FORTH IN
THE ABOVE-CAPTIONED COMPLAINTS FILED BY NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, IND., LOCAL 1745 (HEREAFTER CALLED THE UNION OR COMPLAINANT)
AGAINST THE ABOVE-CAPTIONED RESPONDENTS.
AT THE HEARING ALL PARTIES WERE REPRESENTED BY COUNSEL AND WERE
AFFORDED FULL OPPORTUNITY TO ADDUCE EVIDENCE, CALL, EXAMINE AND
CROSS-EXAMINE WITNESSES, AND ARGUE ORALLY. ORAL ARGUMENT WAS WAIVED AND
BRIEFS WERE FILED BY THE PARTIES.
UPON THE ENTIRE RECORD IN THIS MATTER, /1/ FROM MY READING OF THE
BRIEFS /2/ AND MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I
MAKE THE FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:
SINCE OCTOBER 2, 1970, AND AT ALL TIMES MATERIAL HERETO, THE UNION
HAS BEEN THE EXCLUSIVE CERTIFIED COLLECTIVE BARGAINING REPRESENTATIVE
FOR ALL NON-SUPERVISORY AND NON-PROFESSIONAL EMPLOYEES OF THE VETERANS
ADMINISTRATION DATA PROCESSING CENTER, AUSTIN, TEXAS. THE PARTIES ARE
SIGNATORS TO A COLLECTIVE BARGAINING AGREEMENT EFFECTIVE FOR TWO YEARS
COMMENCING NOVEMBER 22, 1971. AT THE TIME OF THE HEARING THE COLLECTIVE
BARGAINING UNIT NUMBERED 550 TO 590 EMPLOYEES.
I. CASE NO. 63-4716(CA)
THE COMPLAINT HEREIN FILED BY THE UNION ON OCTOBER 1, 1973, ALLEGES
THAT VETERANS ADMINISTRATION, VETERANS ADMINISTRATION DATA PROCESSING
CENTER, AUSTIN, TEXAS (HEREAFTER CALLED THE ACTIVITY OR RESPONDENT DPC),
VIOLATED SECTION 19(A)(1) AND (2) OF THE ORDER BY: (1) STATEMENTS MADE
TO UNION STEWARD MRS. MARTHA BOEHM AND ATTEMPTING TO TAPE RECORD A
MEETING WITH UNION REPRESENTATIVES; (2) ATTEMPTING TO DISCREDIT THE
UNION BY MAKING PUBLIC A CONFIDENTIAL MEMO RELATIVE TO THE UNION FILING
AN EEO COMPLAINT; AND (3) GIVING MRS. BOEHM A LOW PROMOTIONAL APPRAISAL
AND ENROLLING HER FOR A JOB RELATED EXAMINATION WITHOUT HER CONSENT.
1. THE ALLEGED ILLEGAL STATEMENTS AND TAPE RECORDING ATTEMPT.
ON MARCH 27, 1973, MRS. MARTHA BOEHM WAS TRANSFERRED TO THE
ACTIVITY'S PAID PROJECT AS A COMPUTER PROGRAMMER UNDER THE SUPERVISION
OF CHARLES A. WILSON. /3/ SHORTLY AFTER BEGINNING IN THE PAID PROJECT,
MRS. BOEHM, A UNIT EMPLOYEE, WAS DESIGNATED STEWARD OF THAT GROUP, A
FACT THEN KNOWN TO MR. WILSON. /4/ WITHIN THE FIRST TWO WEEKS OF HER
ASSIGNMENT TO THE PAID PROJECT BOEHM HAD OCCASION TO LEAVE THE PROJECT
AREA FOR APPROXIMATELY ONE HOUR. UPON HER RETURN WILSON CALLED BOEHM
INTO HIS OFFICE. WILSON INFORMED BOEHM THAT HE HAD RECEIVED SOME
COMPLAINTS ABOUT HER BEING OUT OF THE PROJECT THAT MORNING. HE THEN
TOLD BOEHM THAT HE HAD AN ANTI-UNION CLIMATE IN THE PAID PROJECT AND
BECAUSE OF THIS HE WAS GOING TO REQUIRE HER IN THE FUTURE TO INFORM HIM
WHERE SHE WAS GOING, WHO SHE WAS GOING TO SEE AND THE NATURE OF HER
BUSINESS IF SHE WAS GOING TO BE ABSENT FROM THE PROJECT FOR MORE THAN 10
MINUTES AT A TIME. /5/ BOEHM RETURNED TO HER DESK AND THEN CAME BACK TO
WILSON'S OFFICE AND SHOWED HIM, FROM A LOG SHE KEPT, THAT HER ABSENCES
FROM THE SHOP HAD BEEN ON PROJECT BUSINESS. SHE EXPLAINED TO WILSON
THAT SHE HAD BEEN STOPPED BY OTHER PEOPLE WITH WHOM SHE EXCHANGED
PLEASANTRIES BUT DURING HER ABSENCES FROM THE PROJECT THAT DAY SHE HAD
NOT BEEN ENGAGED IN UNION BUSINESS. SHE FURTHER EXPLAINED THAT HER
PERSONNEL FOLDER WOULD REVEAL A LETTER OF RECOMMENDATION FROM ALMOST
EVERYONE SHE HAD EVER WORKED FOR AND SHE HAD NEVER BEEN CHALLENGED WITH
REGARD TO THE QUALITY OR QUANTITY OF HER WORK OR HER INTEGRITY. THAT
SAME DAY BOEHM RELATED HER CONVERSATION WITH WILSON TO MRS. DELMA
THAMES, THE UNION'S ACTING PRESIDENT.
LATER THAT AFTERNOON, OR PERHAPS THE FOLLOWING DAY, MRS. BOEHM AND
MRS. THAMES MET WITH WILSON IN HIS OFFICE TO DISCUSS THE MATTER. WILSON
ASKED IF THERE WOULD BY ANY OBJECTION TO HIS TAPE RECORDING THE MEETING.
MRS. THAMES OBJECTED, CONTENDING THAT THE MEETING WAS AN INFORMAL ONE
AND IT WAS NOT THE UNION'S PRACTICE IN THE INFORMAL STAGE OF ANY
PROCEEDING TO USE A TAPE RECORDER. WILSON AGREED NOT TO TAPE THE
MEETING. DURING THE DISCUSSION WILSON ACKNOWLEDGED THAT HE DID NOT
REQUIRE OTHER PAID PROJECT EMPLOYEES TO INFORM HIM OF THEIR ABSENCES
FROM THE PROJECT. HE ALSO ADMITTED THAT HE TOLD BOEHM HE HAD AN
ANTI-UNION ATMOSPHERE IN HIS SHOP AND SINCE BOEHM WAS A UNION STEWARD,
SHE WOULD NOT RECEIVE THE SAME TREATMENT OTHER EMPLOYEES RECEIVED AND
WOULD BE REQUIRED TO INFORM HIM OF HER ABSENCES FROM THE PROJECT.
THAMES MAINTAINED THAT A UNION STEWARD WAS TO BE CONSIDERED AS PART OF
THE WORK UNIT AND WAS TO BE TREATED IN THE EXACT SAME MANNER AS OTHER
PEOPLE IN THAT UNIT. HERETOFORE, NO OTHER PROJECT EMPLOYEE HAD BEEN
REQUIRED TO INFORM WILSON WHEN LEAVING THE WORK AREA AND SUCH ABSENCES
FOR BUSINESS REASONS WERE FREQUENT. ON SOME OCCASIONS EMPLOYEES ALSO
LEFT THE PROJECT AREA FOR PERSONAL REASONS WITHOUT INFORMING WILSON.
DURING THE MEETING THE PARTICIPANTS DISCUSSED THEIR DESIRE TO SETTLE
THE MATTER AT AN INFORMAL LEVEL AND ULTIMATELY WILSON AGREED THAT BOEHM
WOULD NOT BE REQUIRED TO REPORT HER ABSENCES FROM THE PROJECT IF SHE WAS
GOING TO LEAVE ON BUSINESS RELATED MATTERS.
SHORTLY THEREAFTER, MRS. THAMES MET WITH FRANK BURKETT, CHIEF OF THE
SYSTEMS DIVISION AND WILSON'S IMMEDIATE SUPERIOR. THAMES DISCUSSED
WILSON'S COMMENTS TO BOEHM WITH REGARD TO BEING MORE STRICT WITH BOEHM
BECAUSE OF HER BEING A UNION STEWARD. BURKETT INFORMED THAMES THAT HE
WOULD TAKE CARE OF THE MATTER. ON THE FOLLOWING DAY BURKETT TOLD THAMES
THAT THE MATTER WAS "RESOLVED" WITHOUT FURTHER EXPLANATION. WITHIN A
FEW DAYS AFTER HIS INITIAL MEETING WITH BOEHM DESCRIBED ABOVE, WILSON
MET WITH THE EMPLOYEES IN THE PAID PROJECT AND EXPLAINED TO THEM THAT
"DELMA" (THAMES) HAD SOME MISUNDERSTANDING WITH REGARD TO ABSENCES FROM
THE PROJECT AREA. WILSON INFORMED THE EMPLOYEES THAT ABSENCES WHICH
WERE NOT CONNECTED WITH PROJECT WORK HAD TO BE "CLEARED THROUGH
CHANNELS" BEFORE THE PERSON LEFT THE WORK AREA. ACCORDINGLY, BOEHM WAS
SATISFIED WITH THE OUTCOME OF THE SITUATION, DECIDED NOT TO FILE A
FORMAL GRIEVANCE AND NO REOCCURRENCE OF ANY SPECIAL REPORTING
REQUIREMENT FOR A UNION STEWARD WAS IMPOSED THEREAFTER.
UNDER THE CIRCUMSTANCES HEREIN, I FIND THAT WILSON'S REQUIREMENT THAT
BOHEM CONTACT HIM WHENEVER SHE WAS TO LEAVE THE PAID PROJECT WAS
VIOLATIVE OF SECTION 19(A)(1) AND (2) OF THE ORDER. WILSON ADOPTED THE
NEW APPROACH VIS-A-VIS OEHM BECAUSE OF THE ANTI-UNION SENTIMENT OF
EMPLOYEES IN THE PAID PROJECT. THE REQUIREMENT CONSTITUTED ADVERSE
DISPARATE TREATMENT TO BOEHM, THE PROJECT STEWARD, SINCE OTHER UNIT
EMPLOYEES COULD AT THAT TIME MOVE FREELY IN AND OUT OF THE PROJECT FOR
WORK RELATED OR PERSONAL REASONS WITHOUT REPORTING THEIR ACTIVITIES.
SUCH CONDUCT COERCED EMPLOYEES IN VIOLATION OF SECTION 19(A)(1) OF THE
ORDER. THE DISCRIMINATION VISITED UPON BOEHM BECAUSE OF HER STATUS AS
UNION STEWARD RELATIVE TO HER FREE MOVEMENT IN AND OUT OF THE PROJECT
FOR WORK RELATED OR PERSONAL REASONS, A CONDITION OF EMPLOYMENT, ALSO
VIOLATED SECTION 19(A)(1) OF THE ORDER.
RESPONDENT CONTENDS THAT THIS ALLEGATION OF THE COMPLAINT SHOULD BE
DISMISSED SINCE THE "MISUNDERSTANDING" WAS "CLEARED UP WITHIN THE NEXT
FEW DAYS AND NEVER REPEATED." WHILE THE ASSISTANT SECRETARY HAS NOT
REQUIRED A REMEDIAL ORDER IN ALL CASES, /6/ I FIND THAT RESPONDENT'S
OVERALL CONDUCT IN THE MATTERS LITIGATED BEFORE ME WERE NOT ISOLATED,
DEMINIMUS OR FULLY REMEDIED AND ACCORDINGLY THE VIOLATION FOUND HEREIN
REQUIRES A REMEDIAL ORDER.
2. THE UNION'S EEO LETTER TO THE ACTIVITY.
BY LETTER DATED JUNE 27, 1973, THE UNION, AS A THIRD PARTY
COMPLAINANT, NOTIFIED THE ACTIVITY'S DIRECTOR THAT IT WAS CHARGING THE
ACTIVITY WITH VIOLATING THE EQUAL EMPLOYMENT OPPORTUNITY (EEO) ACT. THE
LETTER CHARGED CERTAIN OF THE ACTIVITY'S REPRESENTATIVES WITH SEX
DISCRIMINATION RELATIVE TO CARRYING OUT THE ACTIVITY'S POLICY ON THE USE
OF SICK AND ANNUAL LEAVE AS APPLIED TO WOMEN EMPLOYEES. SPECIFICALLY
THE LETTER, INTER ALIA, ALLEGES DISCRIMINATION WITH REGARD TO THE
ACTIVITY'S WITHHOLDING A PROMOTION OF ONE NAMED EMPLOYEE AND COUNSELING
FIVE NAMED EMPLOYEES ON ALLEGED ABUSE OF SICK AND ANNUAL LEAVE.
ON JUNE 27, 1973, MR. WILSON RECEIVED A COPY OF THE UNION'S LETTER
FROM THE ACTIVITY'S DIRECTOR. ONE OF THE WOMEN NAMED IN THE LETTER,
MRS. JOYCE CROWSON WAS A CLERK-TYPIST IN THE PAID PROJECT. SHE ALSO
ACTED AS WILSON'S SECRETARY. /7/ WILSON RECALLED HAVING PREVIOUSLY
DISCUSSED LEAVE USAGE WITH CROWSON AND ASSUMED THE MATTER WAS SETTLED.
THEREFORE, ACCORDING TO WILSON, HE SHOWED THE UNION'S LETTER TO CROWSON
TO FIND OUT IF CROWSON HAD FILED A DISCRIMINATION CHARGE. CROWSON
DENIED FILING SUCH A CHARGE AND ACCORDING TO WILSON, UPON READING THE
UNION'S LETTER CROWSON BECAME "UPSET BECAUSE SHE WAS NOT AWARE THAT THEY
WERE GOING TO USE HER NAME." WILSON TESTIFIED THAT CROWSON WANTED THE
EMPLOYEES IN THE PROJECT /8/ TO "BE AWARE THAT SHE HAD NOTHING TO DO
WITH THE LETTER OF THIS TYPE OF THING." ACCORDING TO WILSON /9/ , HE
READ THE ENTIRE LETTER TO ALL PROJECT EMPLOYEES AT A GROUP MEETING WHICH
WAS SCHEDULED FOR THAT SAME DAY IN ORDER TO LET THE PROJECT EMPLOYEES
KNOW THAT CROWSON "HAD NO HAND IN COMPLAINING ABOUT THE COUNSELING ON
HER LEAVE." HOWEVER, WILSON COULD NOT RECALL THE REASON HE WAS READING
THE LETTER TO THE EMPLOYEES.
IN THE CIRCUMSTANCES HEREIN, I FIND THAT WILSON'S READING THE UNION'S
LETTER OF JUNE 27 CONVEYED TO PAID PROJECT UNIT EMPLOYEES THAT GOING TO
THE UNION WITH PROBLEMS RELATIVE TO THEIR EMPLOYMENT RELATIONSHIP WITH
THE ACTIVITY COULD LEAD TO PUBLICATION OF MATTERS THAT THEY PERHAPS
WOULD PREFER DID NOT BECOME KNOWN TO OTHER EMPLOYEES OR REPRESENTATIVES
OF THE ACTIVITY. THUS, THE LETTER REVEALED BY IMPLICATION THAT THE FIVE
NAMED EMPLOYEES HAD CONFERRED WITH THE UNION ON HAVING BEEN COUNSELED BY
THE ACTIVITY FOR ALLEGED ABUSE OF LEAVE AND ONE EMPLOYEE COMPLAINED OF A
WITHHELD PROMOTION. WILSON HIMSELF CONSIDERED COUNSELING AN EMPLOYEE ON
ABUSE OF SUCH LEAVE TO BE CONFIDENTIAL INFORMATION. SOME EMPLOYEES
MIGHT WELL CONSIDER THAT THE UNION'S USE IN ANY MANNER WITHOUT EXPRESS
PERMISSION OF INFORMATION GIVEN TO THE UNION TO BE A BREACH OF TRUST
THEREBY ADVERSELY REFLECTING UPON THE UNION. IN MY VIEW WILSON'S
READING THE ENTIRE LETTER RATHER THAN SERVING THE AVOWED PURPOSE OF
INFORMING THE PROJECT EMPLOYEES THAT CROWSON WANTED THEM TO KNOW "SHE
HAD NOTHING TO DO WITH THE LETTER OF THIS TYPE OF THING" /10/ IN THESE
CIRCUMSTANCES INHERENTLY TENDED TO ENGENDER APPREHENSION AND INDEED
HOSTILITY TO THE UNION /11/ AS WELL AS DISSUADE EMPLOYEES FROM SEEKING
UNION ASSISTANCE OR CONSULTING WITH THE UNION WITH REGARD TO EMPLOYMENT
RELATED MATTERS IN FEAR THAT THE MATTER WOULD BECOME PUBLIC OR FALL INTO
THE ACTIVITY'S HANDS WITHOUT THEIR CONSENT. SUCH CONDUCT IMPEDES
EMPLOYEES' FREE AND FULL ACCESS TO UNION REPRESENTATION AND ASSISTANCE
/12/ AND THUS RUNS COUNTER TO THE VERY PRACTICE AND PHILOSOPHY OF
EXCLUSIVE RECOGNITION. /13/ FURTHER, IN DEPARTMENT OF THE NAVY, NAVAL
AIR STATION, FALLON, NEVADA, A/SLMR NO. 432, A CASE INVOLVING INTER
ALIA, THE POSTING OF CONTENTS OF AN ACTIVITY'S LETTER TO A UNION
REFLECTING EVENTS WHICH OCCURRED AT A MEETING HELD TO RESOLVE A
NEGOTIATING PROBLEM AND AN UNFAIR LABOR PRACTICE CHARGE, THE ASSISTANT
SECRETARY FOUND THAT "IT IS IMPROPER FOR AGENCIES OR ACTIVITIES TO
COMMUNICATE DIRECTLY WITH UNIT EMPLOYEES WITH RESPECT TO MATTERS
RELATING TO THE COLLECTIVE BARGAINING RELATIONSHIP." THE ASSISTANT
SECRETARY WENT ON TO STATE THAT "THE NEED FOR SUCH A POLICY IS CLEARLY
DEMONSTRATED IN THIS INSTANCE WHERE RESPONDENT'S COMMUNICATIONS TO UNIT
EMPLOYEES CREATED AN UNFAVORABLE IMPRESSION WITH RESPECT TO THE ACTIONS
OF THE COMPLAINANT'S PRESIDENT AND, IN MY VIEW, NECESSARILY TENDED TO
UNDERMINE THE COMPLAINANT'S EXCLUSIVE BARGAINING STATUS." (SEE
ADDITIONAL DISCUSSION OF THIS CASE, INFRA, CASE NO. 63-4815).
ACCORDINGLY, I CONCLUDE THAT RESPONDENT DPC, THROUGH WILSON'S READING
OF THE UNION'S LETTER OF JUNE 27, 1973, HAS INTERFERED WITH, RESTRAINED
AND COERCED EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE ORDER IN
VIOLATION OF SECTION 19(A)(1) OF THE ORDER.
3. MRS. BOEHM'S PROMOTIONAL APPRAISAL AND THE JOB RELATED
EXAMINATION.
(A) THE PROMOTIONAL APPRAISAL
ON JULY 12, 1973, MRS. BOEHM, A GS-11 COMPUTER PROGRAMMER, RECEIVED
AN EMPLOYEE APPRAISAL
GIVEN BY MR. WILSON AND REVIEWED BY MR. BURKETT (COMPLAINANT EXHIBIT
NO. 8). /14/ THE
APPRAISAL, THE FIRST PROMOTION APPRAISAL BOEHM RECEIVED, WAS GIVEN AS
PART OF AN EVALUATION OF
CANDIDATES WHO WISHED TO BE CONSIDERED FOR PROMOTION TO A GS-12
PROGRAMMER IN ANOTHER
PROJECT. THE ULTIMATE SELECTION FOR THE PROMOTION WAS MADE FROM
THOSE EMPLOYEES WHO WERE
RATED "HIGHLY QUALIFIED." IN EVALUATING CANDIDATES FOR THE "HIGHLY
QUALIFIED" CATEGORY, 40
PERCENT OF THE RATING WAS BASED UPON THE INDIVIDUAL'S APPRAISAL AND
60 PERCENT OF THE RATING
WAS BASED UPON A RATING PANEL'S EVALUATION OF THE INDIVIDUAL'S
EXPERIENCE AND PRIOR
AWARDS. /15/ WILSON'S APPRAISAL OF BOEHM REVEALS THAT OUT OF 15
RATING FACTORS, BOEHM
RECEIVED THE HIGHEST RATING IN 4 CATEGORIES, THE SECOND HIGHEST
RATING IN 10 CATEGORIES AND
THE MIDDLE RATING IN ONE CATEGORY. /16/ SUBSEQUENTLY, BOEHM WAS NOT
RANKED "HIGHLY
QUALIFIED" AND ACCORDINGLY WAS NOT ULTIMATELY CONSIDERED FOR THE
PROMOTION. /17/
IT IS ALLEGED THAT BOEHM'S MEMBERSHIP AND ACTIVE UNION PARTICIPATION
ADVERSELY INFLUENCED
WILSON'S PERFORMANCE APPRAISAL OF HER. HOWEVER, THERE WAS NO
PROBATIVE EVIDENCE OFFERED WHICH
WOULD ESTABLISHED THAT THE APPRAISAL DID NOT ACCURATELY REFLECT
BOEHM'S PERFORMANCE. BOEHM
TESTIFIED IN SUMMARY FASHION THAT AT SOME UNDISCLOSED TIME IN THE
PAST WHEN SHE WORKED IN
ANOTHER PROJECT SHE RECEIVED A SUSTAINED SUPERIOR PERFORMANCE AWARD
AND ALSO WAS SHOWN BY A
"MISS MCBRIDE" AN APPRAISAL FOR THE "MANAGEMENT PERSONNEL INVENTORY
(MPI)" WHICH WAS,
ACCORDING TO BOEHM, "COMPLETELY OUT IN THE LETTER BLOCKS OF THAT
INVENTORY APPRAISAL FORM
WHICH IS SIMILAR TO (THE ) APPRAISAL FORM" BEING CONSIDERED HEREIN.
HOWEVER, THERE IS NO
EVIDENCE THAT THE PRIOR AWARD OR MPI APPRAISAL WAS BASED UPON THE
SAME FACTORS WHICH WERE
CONSIDERED IN THE PROMOTIONAL APPRAISAL NOR IS THERE ANY WAY OF
DISCERNING THE MEANING OF THE
MPI APPRAISAL BEING "COMPLETELY OUT IN THE LETTER BLOCKS" OF THAT
APPRAISAL FORM. NOR IS
THERE ANY EVIDENCE AS TO WHEN AND AT WHAT GRADE LEVEL BOEHM RECEIVED
THE AWARD OR MPI
APPRAISAL. ACCORDINGLY, I FIND THAT SUCH CONCLUSIONARY AND VAGUE
TESTIMONY, ABSENT OTHER
RELEVANT EVIDENCE ON THIS MATTER, DOES NOT SUPPORT A CONCLUSION THAT
WILSON'S APPRAISAL OF
BOEHM WAS NOT ACCURATE AND JUSTIFIED. I SHALL THEREFORE RECOMMEND
THAT THIS ALLEGATION BE
DISMISSED. /18/
(B) THE JOB RELATED EXAMINATION
IN THIS PORTION OF THE COMPLAINT, THE UNION ALLEGES THAT AFTER MRS.
BOEHM HAD DECLINED
TAKING A VOLUNTARY EXAMINATION IN ANS COBOL, /19/ WILSON INFORMED
BOEHM THAT IT WAS UNCERTAIN
AS TO WHAT TRAINING WOULD BE OFFERED IN ANS COBOL AND THAT HE HAD
SIGNED MRS. BOEHM'S NAME TO
THE LIST OF EMPLOYEES SCHEDULED TO TAKE THE EXAMINATION SCHEDULED FOR
AUGUST 15, 1973.
ACCORDING TO THE TESTIMONY OF BOEHM, THE ONLY WITNESS CALLED TO
TESTIFY ON THIS MATTER,
BOEHM WAS INFORMED BY THE ACTIVITY'S SYSTEMS DIVISION OFFICE THAT ANS
COBOL EXAMINATION WOULD
BE GIVEN TO THOSE WHO VOLUNTARILY WISHED TO PARTICIPATE. BOEHM
NOTIFIED THE SYSTEMS DIVISION
OFFICE THAT SHE DID NOT WISH TO TAKE THE EXAMINATION. SUBSEQUENTLY,
WILSON HAD A CONVERSATION
WITH BOEHM AT WHICH TIME HE MENTIONED THAT HE NOTICED BOEHM WAS NOT
SCHEDULED TO TAKE THE
EXAMINATION AND INFORMED BOEHM THAT HE WAS NOT SURE IF A COURSE IN
ANS COBOL WOULD BE GIVEN AT
THE ACTIVITY. WILSON TOLD BOEHM THAT HE WOULD GET SOME ADDITIONAL
INFORMATION ON THE
SUBJECT. SOMETIME THEREAFTER BOEHM WAS INFORMED THAT SINCE IT WAS
UNCERTAIN WHETHER A COURSE
IN ANS COBOL WOULD BE GIVEN, WILSON ENTERED HER NAME TO TAKE THE
EXAMINATION. /20/ BOEHM
THEN WENT WITH MRS. THAMES TO MR. BURKETT, CHIEF OF THE SYSTEMS
DIVISION TO DISCUSS THE MATTER
AND WAS TOLD THAT TAKING THE EXAMINATION WAS VOLUNTARY. BOEHM DID
NOT TAKE THE EXAMINATION
AND THE RECORD DOES NOT DISCLOSE THAT THERE WAS ANY FURTHER MENTION
OF THE MATTER.
AT THE TIME THE ANS COBOL EXAMINATION WAS GIVEN BOEHM HAD BEEN
PROGRAMMING USING ANS COBOL
LANGUAGE. THE EXAMINATION WAS OF THE PASS-FAIL VARIETY AND BOEHM DID
NOT TAKE THE EXAMINATION
BECAUSE, IN HER OPINION, TAKING AN ANS COBOL COURSE WOULD HAVE BEEN
"MORE HELPFUL" TO HER
SINCE AT THE CONCLUSION OF THE COURSE SHE WOULD HAVE RECEIVED A
NUMERICAL GRADE. HOWEVER,
BOEHM DID NOT KNOW WHETHER SHE WOULD STILL BE ELIGIBLE TO TAKE THE
ANS COBOL COURSE IF SHE HAD
ALREADY TAKEN AND PASSED THE EXAMINATION. THERE IS NO EVIDENCE AS TO
WHAT ADVERSE EFFECT, IF
ANY, FAILING THE EXAMINATION WOULD HAVE HAD ON BOEHM'S YEARLY WORK
EVALUATION, HER FUTURE
PROMOTION OPPORTUNITIES, OR OTHERWISE.
IN THE CIRCUMSTANCES HERE, I FIND THAT COMPLAINANT HAS NOT MET ITS
BURDEN OF ESTABLISHING A
VIOLATION OF THE ORDER BY WILSON'S ACT OF SCHEDULING MRS. BOEHM TO
TAKE THE
EXAMINATION. ACCORDINGLY, I SHALL RECOMMEND THAT THIS ALLEGATION OF
THE COMPLAINT BE
DISMISSED. /21/
II. CASE NOS. 63-4717(CA) AND 63-4720 (CA)
THE COMPLAINT IN CASE NO. 63-4717, ORIGINALLY FILED BY THE UNION ON
SEPTEMBER 28, 1973, /22/ AND SUBSEQUENTLY AMENDED, ALLEGES THAT VETERANS
ADMINISTRATION, VETERANS ADMINISTRATION DATA PROCESSING CENTER, AUSTIN,
TEXAS, (HEREAFTER CALLED THE ACTIVITY OR RESPONDENT DPC) VIOLATED
SECTION 19(A)(1) OF THE ORDER BY "MANAGEMENT'S ACTIVE AND OPEN PROMOTION
OF A PETITION FOR DECERTIFICATION OF THE UNION HOLDING EXCLUSIVE
REPRESENTATION AT VADPC" ON JULY 25, 1973, AND BY ALLOWING "THE USE OF
THE AGENCY MAIL ROUTING SYSTEM AND ITS SYMBOLS TO DISTRIBUTE THE
PETITION." MORE SPECIFICALLY, THE UNION ALLEGES: (1) LAMAR GORDON, AN
ALLEGED SUPERVISOR PARTICIPATED IN THE DECERTIFICATION DRIVE AND ALLOWED
HIS NAME TO BE USED AS A SPONSOR OF THE DECERTIFICATION PETITION; (2)
THE ACTIVITY'S SUPERVISORS CHARLES WILSON AND CARL YOCUM FAILED TO
PREVENT THE USE OF THE ACTIVITY'S INTERNAL MAIL SYSTEM FOR COLLECTION OF
THE DECERTIFICATION PETITIONS AND; (3) CHARLES WILSON AND CARL YOCUM
FAILED TO PREVENT THEIR EMPLOYEES FROM ENGAGING IN DECERTIFICATION
ACTIVITIES ON DUTY TIME.
THE COMPLAINT IN CASE NO. 63-4720, FILED ON OCTOBER 1, 1973, ALLEGES
THAT SIMILAR CONDUCT ON THE PART OF WILSON AND YOCUM OCCURRED ON JULY
26, 1973, AND VIOLATED SECTION 19(A)(2) OF THE ORDER. /23/
RESPONDENT DENIES THE ALLEGATIONS OF BOTH COMPLAINTS.
1. THE DECERTIFICATION EFFORT
SOMETIME IN JULY 1973, RUMORS BEGAN TO FLOURISH AT THE ACTIVITY THAT
SOME EMPLOYEES WERE SEEKING TO HAVE THE UNION DECERTIFIED AS COLLECTIVE
BARGAINING REPRESENTATIVE AT THE ACTIVITY. ON JULY 25, 1073, PRIOR TO
THE 8:00 A.M. CHANGE IN SHIFT /24/ VARIOUS EMPLOYEES BEGAN DISTRIBUTING
A LEAFLET WHICH SOLICITED SIGNATURES TO SUPPORT A PETITION TO THE U.S.
DEPARTMENT OF LABOR REQUESTING A DECERTIFICATION ELECTION. THE LEAFLET
STATED AS FOLLOWS:
"AN EFFORT IS BEING MADE TO PRESENT A PETITION TO THE U.S. DEPT OF
LABOR REQUESTING THAT AN
ELECTION BE HELD TO DETERMINE IF THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL #1745,
SHOULD CEASE TO BE THE EXCLUSIVE REPRESENTATIVE FOR ELIGIBLE
EMPLOYEES OF THE DPC.
WE DO NOT BELIEVE THE NFFE REPRESENTS A MAJORITY, NEITHER IN THINKING
NOR IN NUMBERS, OF
THE ELIGIBLE EMPLOYEES AT THIS DPC.
IF YOU WOULD LIKE TO HELP, PLEASE SIGN THE ATTACHED FOR AND FORWARD
IT TO ONE OF THE
REPRESENTATIVES LISTED BELOW. PLEASE DO NOT DETACH THE FORM.
PLEASE BE ASSURED THAT BY SIGNING THIS YOU ARE IN NO WAY JEOPARDIZING
YOUR PRESENT POSITION
OR ADVANCEMENT.
JOYCE CROWSON (327)
LAMAR GORDON (341)
JIM HOWELL (326)
JOYCE LAFLEUR (326)
BOB MCDOWELL (345)
JAMES MOYA (327)
HENRY RODGERS (327)
BARBARA WOOD (327)
I NO LONGER DESIRE TO BE REPRESENTED FOR THE PURPOSES OF EXCLUSIVE
RECOGNITION BY THE
CURRENTLY RECOGNIZED LABOR ORGANIZATION; THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL
#1745. I REQUEST THAT AN ELECTION BE HELD TO DETERMINE IF THE NFFE
SHALL CEASE TO BE THE
EXCLUSIVE REPRESENTATIVE OF EMPLOYEES OF THE VETERANS ADMINISTRATION
DATA PROCESSING CENTER,
AUSTIN, TEXAS."
THE NUMBERS OPPOSITE THE EMPLOYEE'S NAMES IN THE LEAFLET INDICATE
SPECIFIC PROJECTS WITHIN THE ACTIVITY AND ARE USED FOR INTRA-ACTIVITY
MAIL ROUTING PURPOSES. MESSENGERS TRANSMIT MAIL FROM THE VARIOUS
ACTIVITY LOCATIONS TO THOSE DESIGNATED BY THE NUMERICAL SYMBOL. THE
MAIL STOP SYMBOLS WERE PLACED ON THE LEAFLET SO THAT EMPLOYEES WOULD
RETURN THE SIGNED LEAFLETS THROUGH THE INTERNAL MAIL DISTRIBUTION
SYSTEM.
LEAFLETING AT THE ACTIVITY OCCURRED WHEN EMPLOYEES WERE ARRIVING FOR
WORK AT THE TWO EMPLOYEE ENTRANCES AND THE PARKING LOT AND CONTINUED
FROM JULY 25 THROUGH JULY 27. HUNDREDS OF THESE LEAFLETS WERE PASSED
OUT TO EMPLOYEES. AT LEAST 25 TO 30 OF THE SIGNED LEAFLETS WERE
RETURNED ON JULY 25 THROUGH THE INTERNAL MAIL SYSTEM TO EMPLOYEES WOOD
AND LAFLEUR. OTHERS WERE HAND-CARRIED AND PERSONALLY DELIVERED OR
PLACED ON A DESIGNATED REPRESENTATIVE'S DESK. STILL OTHERS WERE
COLLECTED AT THE ACTIVITY'S ENTRANCES AT THE CLOSE OF THE WORK DAY.
A SECOND LEAFLETING TO GATHER SIGNATURES TO SUPPORT THE
DECERTIFICATION EFFORT OCCURRED SOMETIME DURING EARLY AUGUST 1973.
SUBSEQUENTLY, A PETITION FOR DECERTIFICATION WAS FILED WITH THE U.S.
DEPARTMENT OF LABOR. THE PETITION /25/ WAS SIGNED BY JAMES HOWELL AND
DATED SEPTEMBER 14, 1973. /26/
2. LAMAR GORDON'S INVOLVEMENT
THE UNION ALLEGES AND THE ACTIVITY DENIES THAT LAMAR GORDON IS A
SUPERVISOR WITHIN THE MEANING OF THE ORDER. GORDON'S NAME APPEARS AS A
"REPRESENTATIVE" IN THE DECERTIFICATION LEAFLET REPRODUCED ABOVE.
AT ALL TIMES RELEVANT HERETO, P. LAMAR GORDON HAS BEEN A GS-11,
DIGITAL COMPUTER SYSTEMS ADMINISTRATION SPECIALIST IN THE SUPPLY/LOG 1
SECTION OF THE ACTIVITY'S ANALYSIS AND CONTROL DIVISION. GORDON HAS
HELD THIS POSITION SINCE FEBRUARY 1970. IN ADDITION TO GORDON, THE
SUPPLY/LOG 1 SECTION IS STAFFED BY A GS-12 CHIEF, MR. WILLIS HAVENS,
WHOM THE PARTIES ACKNOWLEDGE TO BE A SUPERVISOR WITHIN THE MEANING OF
THE ORDER, AND EIGHT GS-7 COMPUTER AIDS.
THE SUPPLY/LOG 1 SECTION PERFORMS COMPUTERIZED ACCOUNTING SERVICES
FOR V.A. FACILITIES LOCATED THROUGHOUT THE UNITED STATES. THE SECTION
IS ESSENTIALLY A MAIL ORDER OPERATION WHEREIN INFORMATION IS SUPPLIED
FROM THE AGENCY'S APPROXIMATELY 227 FIELD STATIONS IN THE FORM OF IBM
CARDS AND ACCOUNTING REPORTS ARE PRODUCED THEREFROM. THE REPORTS ARE
THEN ANALYZED BY MEMBERS OF THE SECTION FOR ACCURACY IN RELATION TO THE
INPUT AND THEREAFTER RELEASED TO THE FIELD STATIONS.
THE SECTION'S CHIEF, WILLIS HAVENS, SPENDS A SUBSTANTIAL PORTION OF
HIS WORKDAY IN TELEPHONE COMMUNICATION WITH THE AGENCY'S VARIOUS FIELD
STATIONS. /27/ TELEPHONE CALLS FROM FIELD STATIONS AVERAGE BETWEEN
SEVENTY-FIVE AND ONE HUNDRED A DAY. HAVENS ALSO SPENDS MANY HOURS
PERFORMING RESEARCH AND ENGAGING IN ADMINISTRATIVE DUTIES SUCH AS
ATTENDING MEETINGS AT THE FACILITY. WHEN HAVENS IS ABSENT FROM THE
FACILITY ON OFFICIAL BUSINESS OR FOR PERSONAL REASONS FOR TWO DAYS OR
MORE, HAVENS ISSUES A MEMO ENTITLED "DELEGATION OF AUTHORITY" WHICH
STATES THAT DURING HIS ABSENCE GORDON WILL BE ACTING CHIEF OF THE
SECTION. THE MEMO IS CIRCULATED AMONG THE SECTION EMPLOYEES FOR
INITIALLING. DURING THE TWELVE-MONTH PERIOD PRIOR TO JULY 1973, EIGHT
TO TEN SUCH DELEGATIONS ISSUED APPOINTING GORDON ACTING CHIEF FOR
PERIODS OF TWO DAYS TO TWO WEEKS DURATION. /28/ THE MAJORITY OF THESE
DELEGATIONS LASTED TWO TO THREE DAYS AND APPROXIMATELY TWO LASTED MORE
THAN A WEEK. WHILE SERVING AS ACTING CHIEF, GORDON ASSUMES THE DUTIES
OF THAT POSITION AND IS "IN CHARGE." DURING THIS PERIOD GORDON
ADMITTEDLY CAN INDEPENDENTLY GRANT SICK OR ANNUAL LEAVE.
GORDON'S NORMAL DUTIES, IN PART, CONSIST OF PREPARING WORK SCHEDULES
FOR THE SECTION'S DAILY, WEEKLY, BIWEEKLY, MONTHLY, QUARTERLY AND
SEMI-ANNUAL WORK REQUIREMENTS. GORDON MAKES WORK ASSIGNMENTS TO
EMPLOYEES ON A DAILY BASIS. THE RELATIVE SKILLS OF EMPLOYEES IN THE
SECTION ARE CONSIDERED IN MAKING ASSIGNMENTS AND GORDON ROTATES
EMPLOYEES ON THE VARIOUS WORK PROJECTS IN AN EFFORT TO SEE THAT ALL
EMPLOYEES ARE FAMILIAR WITH AND CAN ACCOMPLISH ALL WORK PERFORMED BY THE
SECTION. IF AN EMPLOYEE OBJECTS TO A PARTICULAR ASSIGNMENT GORDON
INFORMS THE EMPLOYEE OF THE NECESSITY OF LEARNING ALL JOBS WHICH THE
SECTION IS CALLED UPON TO PERFORM. WHEN A NEW EMPLOYEE IS BEING HIRED
FOR THE SECTION GORDON IS USUALLY CALLED UPON TO EXPLAIN TO HIM THE
FUNCTION AND OPERATION OF THE SECTION AND THEREAFTER HAS THE
RESPONSIBILITY FOR THE PROPER TRAINING OF THE INDIVIDUAL. /29/ IF
"HORSEPLAY" ON THE JOB OCCURRED, GORDON WOULD REMIND THE PARTIES THAT A
SCHEDULE HAD TO BE MET AND THE EMPLOYEES WOULD HAVE TO "KNUCKLE DOWN AND
GET WITH IT." OCCASIONALLY, GORDON PERSONALLY WORKS ON A PARTICULAR
ACCOUNTING PROJECT.
GORDON TESTIFIED THAT WHEN CHIEF HAVENS IS ABSENT FROM THE SECTION
FOR SEVERAL HOURS DURING THE COURSE OF A WORKDAY A REQUEST FOR ANNUAL
LEAVE OR SICK LEAVE MADE TO GORDON WOULD BE RELATED TO HAVENS UPON HIS
RETURN TO THE SECTION. IF THE EMPLOYEE WAS SICK AND NEEDED TO LEAVE
IMMEDIATELY IN AN EMERGENCY, GORDON WOULD RELEASE THE EMPLOYEE AND LATER
EXPLAIN THE INCIDENT TO HAVENS WHO WOULD GENERALLY "APPROVE." HOWEVER,
EMPLOYEES SYBORA AND CHAMBERS, WHOSE TESTIMONY I CREDIT, TESTIFIED THAT
GORDON, WHEN HAVENS WAS PRESENT IN THE SECTION APPROVED ANNUAL OR SICK
LEAVE FOR THEM. EMPLOYEE GUADALUPE GOMEZ, WHOSE TESTIMONY I FOUND TO BE
PARTICULARLY IMPRESSIVE, CLEARLY AND DIRECTLY TESTIFIED THAT HIS
REQUESTS FOR ANNUAL OR SICK LEAVE WERE TO GORDON AND GORDON RESPONDED TO
HIS REQUESTS WITHOUT EVER CONSULTING HAVENS. INDEED GOMEZ TESTIFIED
THAT DURING HIS TWO AND ONE-HALF YEARS EMPLOYMENT WITH THE SUPPLY/LOG 1
SECTION HE NEVER ASKED HAVENS FOR ANNUAL LEAVE.
I FIND THAT GORDON, IN THE COURSE OF FULFILLING HIS NORMAL DUTIES,
/30/ RESPONSIBLY DIRECTS EMPLOYEES USING INDEPENDENT JUDGMENT BOTH AS TO
THE REGULAR ASSIGNMENT OF WORK IN THE SUPPLY/LOG 1 SECTION AND GRANTING
LEAVE TIME TO SECTION EMPLOYEES. ACCORDINGLY, I FIND P. LAMAR GORDON TO
BE A SUPERVISOR WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER.
WITH HIS KNOWLEDGE AND CONSENT, GORDON'S NAME APPEARED AS A
"REPRESENTATIVE" ON THE DECERTIFICATION LEAFLET, (REPRODUCED SUPRA),
DISTRIBUTED IN LARGE NUMBERS AT THE FACILITY ON JULY 25, THROUGH JULY
27. ACCORDING TO GORDON, THE SIGNED LEAFLETS WHICH HE RECEIVED WERE
RETURNED TO HIS DESK, SOME OF WHICH WERE RETURNED PERSONALLY AND SOME HE
SIMPLY FOUND ON HIS DESK. ON JULY 26, GORDON LEARNED THAT HE WAS GOING
TO BE DELEGATED ACTING CHIEF OF HIS SECTION DURING HAVEN'S ABSENCE FROM
JULY 27 THROUGH AUGUST 17, 1973. GORDON THEREUPON TOLD HAVENS THAT HE
WOULD WITHDRAW FROM PARTICIPATION IN THE DECERTIFICATION MOVEMENT UNTIL
HAVEN'S RETURN. AFTER THE EVENING OF JULY 26, GORDON NO LONGER
COLLECTED THE SIGNED DECERTIFICATION LEAFLETS. ON JULY 27, GORDON
INFORMED EMPLOYEES HOWELL AND MAXON /31/ THAT HE WAS NO LONGER
"CONNECTED" WITH THE DECERTIFICATION EFFORT. HOWEVER, NO OTHER
EMPLOYEES WERE INFORMED OF GORDON'S TERMINATION FROM DECERTIFICATION
ACTIVITIES OR INVOLVEMENT.
HAVING FOUND THAT GORDON IS A SUPERVISOR WITHIN THE MEANING OF THE
ORDER, I FURTHER FIND THAT HIS ACTIVITIES FOR AND ON BEHALF OF THE
DECERTIFICATION EFFORT, INCLUDING ALLOWING HIS NAME TO BE USED AS A
"REPRESENTATIVE" FOR DECERTIFICATION, CONSTITUTED INTERFERENCE,
RESTRAINT AND COERCION VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER. WHEN
A SUPERVISORY EMPLOYEE PARTAKES IN A DECERTIFICATION DRIVE, SUCH CONDUCT
CONVEYS TO EMPLOYEES THAT THE AGENCY SUPPORTS AND ENCOURAGES THOSE WHO
SEEK DECERTIFICATION AND THEREBY BREACHES THE NEUTRALITY AND APPEARANCE
OF NEUTRALITY EXPECTED OF AN AGENCY. /32/ THOSE WHO SEEK TO CURRY FAVOR
WITH THE AGENCY OR AVOID SUPERVISORY ENMITY ARE THUS SUBTLY PERSUADED TO
SUPPORT THE AGENCY'S VIEWPOINT. THE ORDER DICTATES THAT THE EMPLOYEES
SHOULD BE FREE OF SUCH INTERFERENCE, RESTRAINT AND COERCION IN THE
EXERCISE OF THEIR RIGHTS TO DECIDE IF THEY WANT OR WISH TO RETAIN UNION
REPRESENTATION.
3. THE USE OF THE ACTIVITY'S INTERNAL MAIL SERVICE
AS STATED ABOVE, THE DECERTIFICATION LEAFLETS CONTAINING MAIL ROUTING
SYMBOLS FOR RETURN WERE DISTRIBUTED IN SUBSTANTIAL NUMBERS AT ACTIVITY
ENTRANCES FROM JULY 25 THROUGH JULY 27. THE TESTIMONY ESTABLISH THAT
SOME SIGNED LEAFLETS WERE SENT THROUGH THE ACTIVITY'S MAIL DISTRIBUTION
SYSTEM. ALTHOUGH SUPERVISOR YOCUM TESTIFIED HE DID NOT SEE A COPY OF
THIS LITERATURE, ON JULY 25 OR JULY 26 YOCUM WAS TOLD BY THE SYSTEMS
DIVISION CHIEF THAT THE ACTIVITY'S MESSENGERS HAD BEEN ORDERED NOT TO
PICK UP OR DELIVER ANYTHING THAT LOOKED LIKE A DECERTIFICATION FORM. ON
JULY 25 OR 26 IT CAME TO YOCUM'S ATTENTION THAT TWO OF THE EMPLOYEES IN
HIS PROJECT, MR. HOWELL AND JOYCE LAFLEUR, (NAMED IN THE LEAFLET), WERE
INVOLVED IN THE DECERTIFICATION ACTIVITY. ON JULY 27, YOCUM,
"COUNSELED" HOWELL AND LAFLEUR ABOUT THE MATTER. A MEMORANDUM OF THE
CONVERSATION, PREPARED BY YOCUM, STATES THAT "(T)HEY WERE INSTRUCTED NOT
TO USE THE VA MESSENGER SERVICE FOR (DECERTIFICATION) ACTIVITY AND THAT
DISTRIBUTION OR COLLECTION OF FORMS OR ANY OTHER ACTIVITY IN THIS MATTER
DURING DUTY HOURS WOULD NOT BE TOLERATED."
SUPERVISOR WILSON TESTIFIED THAT HE FIRST SAW A COPY OF THE
DECERTIFICATION LEAFLET ON JULY 25 OR 26. IN THE MORNING OF JULY 27
WILSON RECEIVED WORD FROM HIS SUPERVISOR THAT MAIL STOP NUMBERS WERE
INCORPORATED IN THE DECERTIFICATION HANDBILL AND THE ACTIVITY'S MAIL
SERVICE WAS BEING USED TO TRANSMIT THE SIGNED COPIES. ALTHOUGH HE
PERSONALLY DID NOT SEE ANY LEAFLETS IN THE MAIL, WILSON "COUNSELED"
EMPLOYEES WOOD, CROWSON, ROGERS AND MOYA ABOUT THE MATTER. /33/ A
MEMORANDUM OF THE MEETING, PREPARED BY WILSON, STATES INTER ALIA:
"THIS MEETING WAS FOR THE PURPOSE OF REITERATING THE FACT THAT THE VA
MAIL SYSTEM COULD NOT
BE USED FOR NON-GOVERNMENT BUSINESS. IT WAS POINTED OUT THAT THE
DECERTIFICATION PAPERS THAT
WERE DISTRIBUTED TO EMPLOYEES ON WEDNESDAY AND THURSDAY COULD NOT BE
RETURNED TO THE
RECIPIENTS LISTED ON THE PAPERS VIA VA MESSENGER SERVICE. IT WAS
ALSO DISCUSSED THAT THE
DISTRIBUTION AND COLLECTION OF THE FORM COULD NOT BE ON DUTY HOURS."
IN THE CIRCUMSTANCES HEREIN, I FIND THAT THE ACTIVITY WAS AWARE, ON
JULY 25, THAT THE DECERTIFICATION LEAFLET CONTAINING MAIL ROUTING
SYMBOLS WAS DISTRIBUTED TO EMPLOYEES AND IT WAS REASONABLY ANTICIPATED
THAT THE ACTIVITY'S MAIL DISTRIBUTION SERVICE WOULD BE USED TO RETURN
THE LEAFLETS TO THE DECERTIFICATION REPRESENTATIVES. STARTING ON THE
MORNING OF JULY 25 AND CONTINUING THROUGH JULY 27, THE LEAFLET WAS
WIDELY DISTRIBUTED AT BOTH OF THE FACILITY'S EMPLOYEE ENTRANCES. I FIND
THAT SUPERVISORS GORDON AND WILSON POSSESSED DIRECT KNOWLEDGE OF THE
LEAFLET'S LANGUAGE ON JULY 25, WHICH KNOWLEDGE IS IMPUTED TO THE
ACTIVITY. MOREOVER, I INFER THAT MANAGEMENT, HAVING A LEGITIMATE
INTEREST IN THE SUBSTANTIAL DISTRIBUTION OF LITERATURE AT ALL THE
FACILITY'S EMPLOYEE ENTRANCES, PURSUED THAT INTEREST AT LEAST TO THE
POINT OF PROMPTLY READING THE LITERATURE BEING DISTRIBUTED AT ITS DOORS.
THIS IS ESPECIALLY TRUE WHERE A WIDESPREAD RUMOR OF A DECERTIFICATION
EFFORT HAD EXISTED IMMEDIATELY PRIOR THERETO.
I DO NOT FIND THAT THE ACTIVITY'S FAILURE TO IMMEDIATELY AND TOTALLY
PREVENT THE USE OF ITS MAIL SERVICE ON THE FIRST DAY OF THE LEAFLETING
WAS DELIBERATE OR AVOIDABLE. IT IS REASONABLE TO ASSUME THAT IN THESE
CIRCUMSTANCES SOME TIME WAS NECESSARY FOR THE ACTIVITY TO EVALUATE THE
MATTER, DECIDE ON AN APPROPRIATE COURSE OF ACTION, AND HAVE THAT
DECISION FULLY EXECUTED. MOREOVER, WHILE SOME OF THE SIGNED LEAFLETS
WERE RETURNED THROUGH THE MAIL DELIVERY SERVICE ON JULY 25, THERE WAS NO
SHOWING THAT THE SERVICE WAS USED THEREAFTER FOR SUCH PURPOSE. IT IS
NOT CLEAR WHETHER MANAGEMENT ACTION OR THE EMPLOYEES PERSONAL PREFERENCE
WAS THE REASON FOR AVOIDING USE OF THE MAIL SYSTEM TO RETURN THE SIGNED
LEAFLETS AFTER JULY 25. IN ANY EVENT, SINCE THE ACTIVITY COULD NOT
REASONABLY PREVENT THE JULY 25 USE OF ITS MAIL DELIVERY SYSTEM BY
PROPONENTS OF DECERTIFICATION AND THERE IS NO EVIDENCE OF ACTUAL USE OF
THE INTERNAL MAIL DISTRIBUTION SERVICE IN FURTHERANCE OF DECERTIFICATION
AFTER JULY 25, I DO NOT FIND THAT COMPLAINANT HAS MET ITS BURDEN OF
PROOF THAT THE ORDER WAS VIOLATED WITH REGARD TO THE USE OF THE
ACTIVITY'S MAIL SERVICE IN RETURNING THE SIGNED DECERTIFICATION
LEAFLETS.
NEVERTHELESS, I DO FIND THAT RESPONDENT DPC VIOLATED SECTION 19(A)(1)
OF THE ORDER BY NOT TAKING ADEQUATE MEASURES TO DISASSOCIATE ITSELF FROM
THE IMPLICATION THAT IT WAS LENDING SUPPORT TO THE DECERTIFICATION
EFFORT THROUGH THE USE OF ITS MAIL SERVICE TO RETURN THE SIGNED
DOCUMENTS. /34/ THE ACTIVITY'S ONLY ACTIONS TO CONVEY TO ITS EMPLOYEES
ITS DISAPPROVAL OF SUCH IMPLICATION WAS TO "COUNCIL" SIX OF THE EIGHT
EMPLOYEES NAMED IN THE LEAFLET ON THE THIRD DAY OF THE LEAFLETING. /35/
THOSE WHO USED THE MAIL SERVICE TO RETURN THE LEAFLET RECEIVED NO
SIMILAR ADMONISHMENT. WHILE THE ACTIVITY COULD DO NOTHING TO PREVENT
THE DISTRIBUTION OF THE LEAFLET, IT COULD HAVE TIMELY INFORMED ITS
EMPLOYEES, IN A MANNER REASONABLY CALCULATED TO FULLY NOTIFY THEM, THAT
IT DID NOT AUTHORIZE THE DECERTIFICATION PROPONENTS TO USE THE INTERNAL
MAIL SERVICE AND THEREBY DISPEL THE IMPLICATION OF ACTIVITY SUPPORT FOR
THE DECERTIFICATION EFFORT. ACCORDINGLY, I FIND THAT THE ACTIVITY'S
FAILURE TO ADEQUATELY PROMULGATE SUCH A DISAVOWAL TO ERASE THE
IMPRESSION OF MORE FAVORABLE TREATMENT GIVEN TO THE DECERTIFICATION
SUPPORTERS OVER THAT ACCORDED THE UNION VIOLATED SECTION 19(A)(1) OF THE
ORDER. /36/
HOWEVER, I DO NOT FIND SUCH CONDUCT VIOLATED SECTION 19(A)(2) OF THE
ORDER. SECTION 19(A)(2) PROVIDES THAT AGENCY MANAGEMENT SHALL NOT
"ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION OR OTHER
CONDITIONS OF EMPLOYMENT." DISCRIMINATION WITH REGARD TO A CONDITION OF
EMPLOYMENT, A NECESSARY PREREQUISITE TO ESTABLISHING A VIOLATION OF
SECTION 19(A)(2) OF THE ORDER HAS NOT BEEN SHOWN TO HAVE OCCURRED.
THEREFORE, I SHALL RECOMMEND THAT THIS ALLEGATION BE DISMISSED.
4. THE ALLEGED FAILURE OF WILSON AND YOCUM TO PREVENT DUTY-TIME
DECERTIFICATION ACTIVITY.
THE UNION ALSO CONTENDS THAT SUPERVISORS WILSON AND YOCUM LENT
SUPPORT TO THE DECERTIFICATION EFFORT BY FAILURE TO PREVENT EMPLOYEES
FROM ENGAGING IN DUTY-TIME PRO-DECERTIFICATION CONVERSATIONS AND
MEETINGS ON JULY 25 AND 26, 1973. /37/ I FIND THIS CONTENTION TO BE
UNSUPPORTED BY THE EVIDENCE ADDUCED AT THE HEARING. THUS THE EVIDENCE
MERELY ESTABLISHES THAT SOME PRO-DECERTIFICATION ACTIVITIES /38/ AND
CONVERSATIONS /39/ OCCURRED ON DUTY-TIME AND SOME EMPLOYEES WERE
OBSERVED BY NONSUPERVISORY EMPLOYEES CONVERSING IN GROUPS MORE
FREQUENTLY THAN USUAL. HOWEVER, THE EVIDENCE DOES NOT ESTABLISH THAT
DECERTIFICATION WAS DISCUSSED IN MOST OF THE INCIDENCES WHERE EMPLOYEES
WERE SEEN GATHERED IN CONVERSATION. MOREOVER, THERE IS NO SHOWING THAT
WILSON AND YOCUM OVERHEARD, WERE PRESENT AT, OR HAD KNOWLEDGE OF ANY
ACTIVITIES, MEETINGS, OR CONVERSATIONS WHERE DECERTIFICATION WAS
DISCUSSED. /40/ ACCORDINGLY, I SHALL RECOMMEND THAT THIS ALLEGATION BE
DISMISSED.
III. CASE NOS. 63-4718(CA) AND 63-4719(CA)
IN THESE CASES, COMPLAINANT CONTENDS THAT TWO COMPUTER PROGRAMMER
TEAM LEADERS, GAYLYN MAXSON AND ROBERT BECK, EMPLOYED BY VETERANS
ADMINISTRATION DATA PROCESSING CENTER, AUSTIN, TEXAS (HEREAFTER CALLED
THE ACTIVITY OR RESPONDENT DPC) WERE SUPERVISORS WITHIN THE MEANING OF
THE ORDER AND ACCORDINGLY THEIR PARTICIPATION IN THE DECERTIFICATION
EFFORT DESCRIBED SUPRA, VIOLATED SECTION 19(A)(2) OF THE ORDER. BOTH
MAXSON AND BECK ADMITTED DISTRIBUTING PRO-DECERTIFICATION LEAFLETS
SOMETIME IN AUGUST 1973. MAXSON ALSO ADMITTED ALLOWING HIS POST OFFICE
BOX TO BE USED IN FURTHERANCE OF THE DECERTIFICATION EFFORT.
(A) CASE NO. 63-4718(CA)
FOR THREE TO FOUR YEARS PRIOR TO THE HEARING HEREIN, GAYLYN MAXSON
WAS COMPUTER PROGRAMMER
TEAM LEADER IN THE ACTIVITY'S LOG 1 PROJECT. LOG 1 IS COMPRISED OF
APPROXIMATELY THIRTEEN
EMPLOYEES INCLUDING AN ACKNOWLEDGED SUPERVISOR, CARL YOCUM, GRADE
GS-13 AND TWO GS-12 COMPUTER
PROGRAMMER TEAM LEADERS - MAXSON AND RYAN. THE REMAINING EMPLOYEES
ARE GS-11 COMPUTER
PROGRAMMERS APPROXIMATELY HALF OF WHOM WORK IN THE AREA FOR WHICH
MAXSON IS TEAM LEADER.
A TEAM LEADER'S POSITION DESCRIPTION PROVIDES, INTER ALIA:
"THE INCUMBENT IS DIRECTLY RESPONSIBLE FOR THE DEVELOPMENT OR
MAINTENANCE OF THE PROGRAMS
IN THE PROJECT TO WHICH HE IS ASSIGNED. SERVES AS A TEAM LEADER OR
HAS PROGRAMMING
RESPONSIBILITY FOR EXTREMELY COMPLEX PROGRAMS. AS A TEAM LEADER, IS
DESIGNATED TO ASSIST
SUBORDINATE PROGRAMMERS AND TO COORDINATE AND INCORPORATE THEIR
PROGRAMS INTO A FUNCTIONING
SYSTEM. PLANS WORK TO BE ACCOMPLISHED BY SUBORDINATES, SETS
PRIORITIES AND ESTABLISHES
SCHEDULES FOR COMPLETION OF WORK. ASSIGNS WORK TO SUBORDINATES BASED
ON PRIORITIES, GIVING
CAREFUL CONSIDERATION TO THE DIFFICULTY AND REQUIREMENTS OF THE
ASSIGNMENTS AND CAPABILITIES
OF EMPLOYEES. EVALUATES PERFORMANCE OF SUBORDINATES."
PROJECT ASSIGNMENTS WHICH COME TO THE ACTIVITY ARE RECEIVED BY YOCUM.
THEREAFTER TEAM
LEADER RYAN DISTRIBUTES THE PARTICULAR WORK ASSIGNMENTS TO PROJECT
EMPLOYEES, SOMETIMES AFTER
DISCUSSION WITH MAXSON. RYAN'S CONSULTATION WITH MAXSON ARISES WHEN
QUESTIONS ARISE OF A
TECHNICAL NATURE RELATIVE TO THE ASSIGNMENT TO BE MADE.
THE MAJORITY OF MAXSON'S TIME IS SPENT IN PROGRAMING, SYSTEMS DESIGN
AND ANALYZING
TECHNICAL ASPECTS OF PROGRAMS WITHIN HIS AREA OF RESPONSIBILITY.
SINCE MAXSON IS HIGHLY
KNOWLEDGEABLE IN THE TECHNICAL ASPECTS OF LOG 1 WORK, PROGRAMMERS
EXPERIENCING DIFFICULTY WITH
THEIR ASSIGNMENTS FREQUENTLY SEEK HIS ASSISTANCE WITH PROBLEMS THEY
MAY HAVE
ENCOUNTERED. /41/ ALTHOUGH HIS POSITION DESCRIPTION INDICATES THAT
HE IS RESPONSIBLE FOR THE
EVALUATION OF SUBORDINATE'S PERFORMANCE, MAXSON HAS NEVER EVALUATED
THE PERFORMANCE OF AN
EMPLOYEE. YOCUM EVALUATES ALL EMPLOYEES IN THE PROJECT. ON OCCASION
MAXSON HAS BEEN CALLED
UPON TO RESPOND TO QUESTIONS YOCUM MAY HAVE RELATIVE TO AN EMPLOYEE'S
PERFORMANCE, BUT HIS
ADVICE IN THIS REGARD IS SOUGHT INFREQUENTLY.
WHENEVER YOCUM IS ABSENT FROM THE LOG 1 PROJECT AREA RYAN IS USUALLY
DESIGNATED ACTING
SUPERVISOR OF THE PROJECT. IN THE EVENT YOCUM AND RYAN ARE
SIMULTANEOUSLY ABSENT FROM THE
PROJECT AREA FOR SHORT PERIODS, MAXSON THEN ACTS AS PROJECT
SUPERVISOR. /42/ THIS OCCURS
APPROXIMATELY TWO TO THREE HOUR DURATION EACH TIME. ON ONE OCCASION
IN 1972 WHEN YOCUM AND
RYAN WERE BOTH ABSENT FOR A ONE TO TWO WEEK PERIOD, MAXSON WAS MADE
ACTING SUPERVISOR BY
WRITTEN DESIGNATION.
ON MARCH 30, 1973, MAXSON WAS DESIGNATED TEMPORARY SUPERVISOR OF THE
AMIS PROJECT. THE
ASSIGNMENT WHILE INITIALLY NOT TO EXCEED SIXTY DAYS, WAS NOT
COMPLETED UNTIL APPROXIMATELY
JUNE 22, 1973. THE PARTIES AGREED THAT DURING THIS PERIOD MAXSON WAS
A SUPERVISOR WITHIN THE
MEANING OF SECTION 2(C) OF THE ORDER.
I FIND THAT THE EVIDENCE FAILS TO SUPPORT COMPLAINANT'S CONTENTION
THAT AS A COMPUTER
PROGRAMMER TEAM LEADER MAXSON HAS GRANTED LEAVE TO EMPLOYEES, MADE
OTHER THAN ROUTINE
ASSIGNMENTS OF WORK, DISCIPLINED EMPLOYEES OR ADJUSTED THEIR
GRIEVANCES, OR THAT MAXSON
POSSESSES ANY OF THE OTHER INDICIA OF SUPERVISORY AUTHORITY WITHIN
THE MEANING OF SECTION 2(C)
OF THE ORDER. /43/
RATHER, I FIND THAT MAXSON'S ROLE WITH OTHER EMPLOYEES IN THE LOG 1
PROJECT, WHEN HE IS NOT
AN "ACTING" SUPERVISOR, IS THAT OF A MORE KNOWLEDGEABLE EMPLOYEE
PROVIDING TECHNICAL ADVICE
AND GUIDANCE TO LESSER SKILLED EMPLOYEES IN HIS PROJECT. /44/
ACCORDINGLY, SINCE THERE IS NO
EVIDENCE THAT MAXSON'S DECERTIFICATION ACTIVITIES OCCURRED DURING
PERIODS WHEN HE WAS AN
"ACTING" OR TEMPORARY SUPERVISOR AND SUCH PERIODS WERE INFREQUENT, I
SHALL RECOMMEND THAT THE
COMPLAINT HEREIN BE DISMISSED.
(B) CASE NO. 63-4719(CA)
DURING THE PERIOD OF THE DECERTIFICATION EFFORT DESCRIBED SUPRA, AND
FOR APPROXIMATELY ONE
YEAR PRIOR THERETO, ROBERT BECK WAS A COMPUTER PROGRAMMER TEAM LEADER
IN THE ACTIVITY'S PAID
PROJECT. /45/ THE PAID PROJECT CONSISTS OF APPROXIMATELY 19
EMPLOYEES INCLUDING THE
PROJECT'S ACKNOWLEDGED SUPERVISOR CHARLES WILSON, GRADE GS-13 AND TWO
GS-12 TEAM LEADERS, BECK
AND LAVERNE MCELRATH. BECK HAD SIX GS-11 EMPLOYEES AND ONE GS-9
EMPLOYEE ON HIS TEAM. THE
REMAINDER OF THE PROJECT EMPLOYEES WERE ON MCELRATH'S TEAM.
AT ALL TIMES MATERIAL HEREIN, BECK HAD THE SAME JOB DESCRIPTION AS
THAT OF GAYLYN MAXSON,
SET FORTH ABOVE. WHEN WORK WAS RECEIVED IN THE PROJECT, PRIORITIES
AND TARGET DATES FOR
COMPLETION HAD ALREADY BEEN SET BY THE AGENCY'S CENTRAL OFFICE IN
WASHINGTON, D.C. MCELRATH
WOULD TAKE OUT THOSE JOBS OVER WHICH SHE HAD RESPONSIBILITY AND GIVE
TO BECK THOSE WHICH WERE
IN HIS TECHNICAL AREA OF RESPONSIBILITY. THEREAFTER BECK PASSED OUT
WORK TO THOSE ON HIS
TEAM. /46/ ALL THE PROGRAMMERS ON BECK'S TEAM WERE TECHNICALLY
COMPETENT AND ACCORDINGLY,
SMALLER JOBS COULD BE GIVEN BY BECK TO ANY OF THE PROGRAMMERS.
LARGER PROJECTS WERE GIVEN TO
THOSE PROGRAMMERS WHO HAD PRIOR EXPERIENCE WORKING ON THAT TYPE OF
JOB. WHEN BECK ASSIGNED A
JOB, THE PROGRAMMER INFORMED HIM OF THE AMOUNT OF TIME IT WOULD TAKE
HIM TO COMPLETE THE
ASSIGNMENT, TAKING INTO CONSIDERATION THE AMOUNT OF WORK WHICH WAS
STILL TO BE COMPLETED. IF
THE PROGRAMMER ESTIMATED THAT HE WOULD NOT BE ABLE TO FINISH THE JOB
BY THE ASSIGNED TARGET
DATE, BECK WOULD GIVE THE TASK TO ANOTHER PROGRAMMER WHO COULD MEET
THE TARGET DATE. BEFORE
ASSIGNING VERY LARGE JOBS, BECK SOUGHT WILSON'S ADVICE AND TOGETHER
THEY DECIDED WHO WOULD
RECEIVE THAT PARTICULAR JOB. BECK KEPT WILSON CONTINUALLY ADVISED OF
ALL ASSIGNMENTS
INCLUDING WHO WAS ASSIGNED A PARTICULAR JOB AND WHY. WILSON
PERSONALLY ASSIGNED JOBS AND
ROTATED PROJECT PROGRAMMERS FOR TRAINING PURPOSES.
THE VAST MAJORITY OF BECK'S WORK DAY WAS SPENT PROGRAMMING, GIVING
TECHNICAL ASSISTANCE TO
OTHER PROGRAMMERS WHO WERE HAVING DIFFICULTY WITH A PARTICULAR
ASSIGNMENT AND MAINTAINING
PRODUCTION RECORDS. BECK'S DUTIES ALSO INCLUDED COORDINATING THE
WORK OF SEVERAL PROGRAMMERS
WHO WERE WORKING ON SEPARATE "MODULES" OF A JOB AND JOINING THE
"MODULES" INTO AN OVERALL
COMPUTERIZED PRODUCT. ONE EMPLOYEE TESTIFIED THAT BECK WAS A MUCH
MORE PROFICIENT PROGRAMMER
THAN THOSE ON HIS TEAM AND WAS REGARDED AS THE TEAM'S "ENCYCLOPEDIA".
PART OF BECK'S DUTIES INCLUDED KEEPING WILSON INFORMED ON AN ALMOST
DAILY BASIS WITH REGARD
TO THE PROGRESS OF WORK WITHIN HIS AREA OF RESPONSIBILITY. BECK
ADVISED WILSON OF ANY JOB
THAT WAS HAVING TROUBLE WHICH MIGHT DELAY ITS COMPLETION, INFORMING
WILSON WHETHER HE THOUGHT
THE DIFFICULTY MIGHT BE THE FAULT OF THE PROGRAMMER. IN SUCH A CASE,
WILSON WOULD PERSONALLY
CHECK WITH THE PROGRAMMER, ASCERTAIN THE NATURE OF THE PROBLEM AND
DECIDE WHETHER ANY
ADJUSTMENTS WERE REQUIRED.
ALTHOUGH THE TEAM LEADER POSITION DESCRIPTION STATES "EVALUATES
PERFORMANCES OF
SUBORDINATES", BECK, AS A TEAM LEADER, HAS NEVER PERFORMED THIS DUTY.
ALTHOUGH BECK HAS KEPT
WILSON ADVISED AS TO THE JOB PERFORMANCE OF HIS TEAM MEMBERS, THE
PREPARATION OF EMPLOYEE
PERFORMANCE RATINGS AND EVALUATIONS ARE WILSON'S RESPONSIBILITY.
BECK HAS NEVER FILLED OUT
ANY EVALUATION OR RATING FORMS NOR HAS WILSON EVER SOUGHT BECK'S
ADVICE AS TO WHAT RATING AN
EMPLOYEE SHOULD RECEIVE.
WHEN WILSON WAS ABSENT FROM THE OFFICE, MCELRATH WAS APPOINTED ACTING
SUPERVISOR BY EITHER
WRITTEN OR ORAL DESIGNATION. ON OCCASION, WHEN MCELRATH WAS ACTING
SUPERVISOR AND LEFT THE
WORK AREA DURING THE COURSE OF THE WORKDAY, BECK "BEING THIRD IN
LINE" BECAME PROJECT
SUPERVISOR DURING THAT PERIOD. BECK WAS NEVER APPOINTED ACTING
SUPERVISOR BY WRITTEN
DESIGNATION.
ALTHOUGH BECK AS ACTING SUPERVISOR IN THE ABSENCE OF BOTH WILSON AND
MCELRATH COULD GRANT
EMERGENCY LEAVE TO A PROJECT EMPLOYEE IF THE SITUATION AROSE, HE DID
NOT POSSESS INDEPENDENT
AUTHORITY TO GRANT LEAVE TO EMPLOYEES ON HIS TEAM. HOWEVER, IF AN
EMPLOYEE DESIRED LEAVE HE
WOULD INFORM WILSON AND EITHER PRIOR OR SUBSEQUENT THERETO "CLEARED"
THE MATTER WITH BECK
SINCE BECK WAS MORE AWARE OF THE INDIVIDUAL EMPLOYEES' WORKLOAD
SITUATION THAN WILSON.
I FIND THAT THE EVIDENCE FAILS TO SUPPORT COMPLAINANT'S CONTENTION
THAT AS A COMPUTER
PROGRAMMER TEAM LEADER BECK POSSESSED ANY INDICIA OF SUPERVISORY
AUTHORITY WITHIN THE MEANING
OF SECTION 2(C) OF THE ORDER. /47/ RATHER, LIKE TEAM LEADER MAXSON,
SUPRA, BECK'S DUTIES AND
RESPONSIBILITIES WERE THOSE OF A MORE KNOWLEDGEABLE EMPLOYEE
PROVIDING TECHNICAL ADVICE AND
GUIDANCE TO LESSER SKILLED EMPLOYEES IN HIS PROJECT. /48/
ACCORDINGLY, I SHALL RECOMMEND
THAT THE COMPLAINT HEREIN BE DISMISSED.
IV. CASE NO. 63-4815(CA)
ON JANUARY 17, 1974, THE UNION FILED THE COMPLAINT HEREIN ALLEGING
THAT VETERANS ADMINISTRATION, VETERANS ADMINISTRATION DATA PROCESSING
CENTER, AUSTIN, TEXAS, (HEREINAFTER CALLED THE ACTIVITY OR RESPONDENT
DPC) VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER WHEN, ON NOVEMBER
29, 1973, CHARLES WILSON, PAID PROJECT SUPERVISOR AT THE ACTIVITY,
CAUSED TO BE CIRCULATED TO ALL PAID PROJECT EMPLOYEES AN ACTIVITY MEMO
ENTITLED "STATUS OF AGREEMENT WITH NFFE LOCAL 1745."
AS STATED ABOVE, THE UNION AND THE ACTIVITY WERE PARTIES TO A TWO
YEAR COLLECTIVE BARGAINING AGREEMENT WHICH BECAME EFFECTIVE ON NOVEMBER
22, 1971. ON NOVEMBER 15, 1973, MARTHA BOEHM, THE UNION'S ACTING
PRESIDENT MET WITH ROBERT BOULDIN, THE ACTIVITY'S PERSONNEL DIVISION
CHIEF, AT WHICH TIME THE PARTIES CONVERSED WITH REGARD TO THE STATUS OF
THE NEGOTIATED AGREEMENT. THE PARTIES DISCUSSED HAVING AN INFORMAL
AGREEMENT TO CONTINUE THE TERMS OF THE EXPIRING AGREEMENT. NO AGREEMENT
WAS REACHED SINCE BOEHM DID NOT WANT TO COMMIT THE UNION UNTIL SHE COULD
CONFER WITH OTHER UNION OFFICIALS. THE DISCUSSION DID NOT TOUCH OF THE
SUBJECT OF PUBLICIZING ANY AGREEMENT WHICH THE PARTIES MIGHT REACH ON
THE MATTER.
ON NOVEMBER 16, 1973, MRS. BOEHM WROTE MR. BOULDIN THE FOLLOWING
LETTER:
"THIS IS IN REPLY TO YOUR MEMORANDUM OF NOVEMBER 12, 1973, CONCERNING
THE RELATIONSHIP
BETWEEN MANAGEMENT AND LOCAL 1745 SUBSEQUENT TO NOVEMBER 22, 1973.
DURING OUR CONSULTATION DISCUSSION ON NOVEMBER 15, 1973, YOU STATED
THAT IT WAS DESIRABLE
THAT MANAGEMENT AND LOCAL 1745 HAVE A VERBAL AGREEMENT THAT OUR
RELATIONSHIP CONTINUE TO BE
BOUND BY THE TERMS OF OUR CONTRACT UNTIL SUCH TIME AS THE
REPRESENTATION ISSUE RAISED BY THE
DECERTIFICATION PETITION IS RESOLVED.
THIS MATTER HAS BEEN DISCUSSED WITH THE NATIONAL OFFICE OF N.F.F.E.
AND BROUGHT BEFORE
LOCAL 1745'S EXECUTIVE COUNCIL. SINCE WE CONSIDER THAT THE AGREEMENT
SIGNED NOVEMBER 22,
1971, IS STILL A BINDING CONTRACT, BY VOTE OF THE EXECUTIVE COUNCIL
AT ITS MEETING NOVEMBER
15, 1973, WE ARE AGREEABLE TO CONTINUING UNDER THE TERMS OF THIS
CONTRACT UNTIL THE
REPRESENTATION ISSUE IS RESOLVED."
THEREAFTER ON NOVEMBER 27, 1973, THE ACTIVITY CIRCULATED TO ITS
DIVISION CHIEFS A MEMORANDUM ENTITLED "STATUS OF AGREEMENT WITH NFFE
LOCAL 1745." PAID PROJECT SUPERVISOR WILSON RECEIVED A COPY OF THE
MEMORANDUM WHICH HE, IN TURN, ROUTED TO THE EMPLOYEES IN HIS PROJECT FOR
THEM TO READ. /49/ THE BODY OF THE MEMORANDUM STATES AS FOLLOWS:
"1. THE PURPOSE OF THIS MEMORANDUM IS TO INFORM YOU OF THE CURRENT
POSITIONS OF THE
PARTIES TO THE AGREEMENT WITH REGARD TO ITS TERMINATION.
A. MANAGEMENT POSITION: BECAUSE OF PENDING REPRESENTATION ISSUE
(DECERTIFICATION
PETITION) PRECLUDES NEGOTIATIONS, THE AGREEMENT TERMINATED UNDER THE
TWO-YEAR DURATION
PROVISION CONTAINED IN IT. IN THE INTEREST OF ORDERLY RELATIONS
BETWEEN THE PARTIES, HOWEVER,
MANAGEMENT INFORMALLY AGREES TO FOLLOW THE PROCEDURES CONTAINED IN
THE TERMINATED AGREEMENT
UNTIL SUCH TIME AS THE REPRESENTATION ISSUED IS RESOLVED. THIS COULD
MEAN THE INITIATED
NEGOTIATIONS MAY NOT BE RESUMED, DEPENDING ON THE FINAL RESOLUTION.
B. UNION POSITION: BECAUSE THE NEGOTIATIONS WERE INITIATED AND NOT
CONCLUDED, THE
AGREEMENT REMAINS IN EFFECT UNTIL SUCH TIME AS THE REPRESENTATION
ISSUE IS RESOLVED.
2. PLEASE SEE THAT ALL OF YOUR SUPERVISORS ARE INFORMED OF THE
RESPECTIVE POSITIONS OF THE
PARTIES CONCERNED. THE MANAGEMENT POSITION IS TO BE STRICTLY ADHERED
TO IN ALL RELATIONS WITH
THE LOCAL."
THE COMPLAINT ALLEGES THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) AND
(6) OF THE ORDER SINCE THE ACTIVITY HAD A DUTY TO CONSULT WITH IT
CONCERNING BOTH THE CONTENT OF THE MEMORANDUM CIRCULATED BY WILSON AND
THE EXTENT OF ITS DISTRIBUTION PRIOR TO ITS FORMULATION AND
DISTRIBUTION. THE UNION CONTENDS THAT THE STATUS OF AN AGREEMENT
BETWEEN AN EXCLUSIVE REPRESENTATIVE AND AN ACTIVITY AND THE MANNER IN
WHICH EMPLOYEES ARE INFORMED ABOUT THE STATUS OF THE AGREEMENT ARE
MATTERS AFFECTING WORKING CONDITIONS. COMPLAINANT IS OF THE VIEW THAT
THE MEMORANDUM WAS WRITTEN IN SUCH A WAY AS TO MAKE THE UNION LOOK
POWERLESS AND THE DISTRIBUTION OF THE DOCUMENT WAS DESIGNED TO
DISCOURAGE MEMBERSHIP IN LOCAL 1745. /50/ HOWEVER, BOEHM ADMITTED, AND
I FIND, THAT THE MEMORANDUM ACCURATELY REFLECTS THE UNION'S POSITION ON
THE MATTER.
THE ACTIVITY DENIES ANY OBLIGATION TO CONSULT WITH THE UNION RELATIVE
TO CIRCULATING THE MEMORANDUM /51/ CONTENDING THAT THE CIRCULATION OF
SUCH A MEMORANDUM IS NOT A PERSONNEL POLICY, PRACTICE, OR MATTER
AFFECTING WORKING CONDITIONS. THE ACTIVITY ALSO CONTENDS THAT IT WAS
THE PAST PRACTICE IN THE PAID PROJECT TO CIRCULATE SUCH MEMORANDA.
IN DEPARTMENT OF THE NAVY, NAVAL AIR STATION, FALLON, NEVADA, A/SLMR
NO. 432, CITED ABOVE, (CASE NO. 63-4716, PART I, SECTION 2), THE UNION
THEREIN FILED AN UNFAIR LABOR PRACTICE COMPLAINT CONCERNING, INTER ALIA,
THE ACTIVITY'S POSTING ON BULLETIN BOARDS MINUTES OF A MONTHLY
LABOR-MANAGEMENT MEETING AND A LETTER FROM THE ACTIVITY TO THE UNION'S
PRESIDENT, BOTH OF WHICH WERE ALSO SENT TO THE UNION. WITH REGARD TO
THE MINUTES OF THE MEETING, IT WAS FOUND THAT SUCH MINUTES, AS RECORDED
BY THE ACTIVITY, CONSISTED OF SIX PAGES AND ACCURATELY REFLECTED WHAT
OCCURRED AT THE MEETING. THE ASSISTANT SECRETARY HELD THAT, ABSENT
MUTUAL AGREEMENT BETWEEN AN AGENCY OR AN ACTIVITY AND AN EXCLUSIVE
BARGAINING REPRESENTATIVE CONCERNING THE FORMER'S RIGHT TO COMMUNICATE
DIRECTLY WITH UNIT EMPLOYEES OVER MATTERS RELATING TO THE COLLECTIVE
BARGAINING RELATIONSHIP: " . . . BY DIRECTLY REPORTING TO UNIT
EMPLOYEES MATTERS WHICH HAVE ARISEN IN THE CONTEXT OF THE COLLECTIVE
BARGAINING RELATIONSHIP, AN AGENCY OR ACTIVITY NECESSARILY UNDERMINES AN
EXCLUSIVE REPRESENTATIVE'S RIGHTS SET FORTH IN SECTION 10(E) TO BE DEALT
WITH EXCLUSIVELY IN MATTERS AFFECTING THE TERMS AND CONDITIONS OF
EMPLOYMENT OF THE UNIT EMPLOYEES IT REPRESENTS. ANY LESSER STANDARD
CLEARLY WOULD BE IN DEROGATION OF THE COLLECTIVE BARGAINING
RELATIONSHIP."
HOWEVER, THE ASSISTANT SECRETARY WENT ON TO FIND THAT THE UNION WAS
ESTOPPED IN THAT CASE FROM CONTENDING THAT THE POSTING OF THE MINUTES
VIOLATED THE ORDER SINCE THROUGH MUTUAL AGREEMENT AND PAST PRACTICE THE
PARTIES HAD ESTABLISHED A PROCEDURE FOR POSTING ON BULLETIN BOARDS THE
MINUTES OF THE PARTIES' MONTHLY LABOR-MANAGEMENT MEETINGS.
AS TO THE LETTER FROM THE ACTIVITY TO THE UNION'S PRESIDENT, THE
ASSISTANT SECRETARY FOUND IN THE DEPARTMENT OF THE NAVY, NAVAL AIR
STATION, FALLON, NEVADA CASE, THAT THE ACTIVITY'S POSTING OF THE LETTER
VIOLATED THE ORDER SINCE THERE WAS NO AGREEMENT BY THE EXCLUSIVE
REPRESENTATIVE RELATIVE TO THE POSTING OF SUCH LETTERS. THE CONTENTS OF
THE LETTER TO THE UNION'S PRESIDENT REFLECTED EVENTS WHICH OCCURRED AT A
SPECIAL MEETING BETWEEN THE ACTIVITY AND THE PRESIDENT HELD TO RESOLVE A
NEGOTIATING PROBLEM AND AN UNFAIR LABOR PRACTICE CHARGE. ALTHOUGH THE
LETTER ACCURATELY REFLECTED WHAT TRANSPIRED AT THE MEETING, THE LETTER
CONTAINED STATEMENTS WHICH WERE OFFENSIVE TO THE UNION. /52/ THE
ASSISTANT SECRETARY HELD APPLICABLE TO THE LETTER THE RATIONALE HE
EXPRESSED WITH REGARD TO POSTING THE MINUTES OF THE MEETING STATING:
"AS DISCUSSED ABOVE, ABSENT AGREEMENT BY AN EXCLUSIVE REPRESENTATIVE,
I FIND THAT IT IS
IMPROPER FOR AGENCIES OR ACTIVITIES TO COMMUNICATE DIRECTLY WITH UNIT
EMPLOYEES WITH RESPECT
TO MATTERS RELATING TO THE COLLECTIVE BARGAINING RELATIONSHIP. THE
NEED FOR SUCH A POLICY IS
CLEARLY DEMONSTRATED IN THIS INSTANCE WHERE THE RESPONDENT'S
COMMUNICATION TO UNIT EMPLOYEES
CREATED AN UNFAVORABLE IMPRESSION WITH RESPECT TO THE ACTIONS OF THE
COMPLAINANT'S PRESIDENT
AND, IN MY VIEW, NECESSARILY TENDED TO UNDERMINE THE COMPLAINANT'S
EXCLUSIVE BARGAINING
STATUS."
BASED UPON THE ASSISTANT SECRETARY'S DECISION IN THE DEPARTMENT OF
THE NAVY, NAVAL AIR STATION, FALLON NEVADA CASE, I FIND THAT THE
ACTIVITY'S DIRECT COMMUNICATION TO THE EMPLOYEES HEREIN RELATING TO THE
PARTIES' POSITIONS ON THE STATUS OF NEGOTIATIONS AND THE BINDING EFFECT
OF THE AGREEMENT WAS VIOLATIVE OF SECTION 19(A)(1) AND (6) OF THE ORDER.
WHILE THE FACTS OF THE CASE HEREIN ARE SOMEWHAT DIFFERENT FROM THOSE IN
THE NAVAL AIR STATION CASE, AS THEY VIRTUALLY ALWAYS ARE IN LITIGATED
CASES, THEY ARE SUFFICIENTLY ANALOGOUS FOR THE PRINCIPLE OF NAVAL AIR
STATION TO APPLY. WHILE THE AMOUNT OF INFORMATION CONVEYED IN THE
COMMUNICATION HEREIN IS SUBSTANTIALLY LESS THAN THAT CONTAINED IN THE
MINUTES OF THE NAVAL AIR STATION MEETING, BOTH ARE REPORTS OF WHAT
TRANSPIRED AT A MEETING AND REVEALED THE STATUS OF MATTERS AND THE
PARTIES' POSITIONS RELATING TO THE COLLECTING BARGAINING RELATIONSHIP.
THE ASSISTANT SECRETARY'S PROHIBITION IN THE NAVAL AIR STATION CASE IS
BROAD AND NOT RESTRICTED TO SITUATIONS WHERE THE COMMUNICATION INVOLVED
MIGHT REFLECT UNFAVORABLY UPON THE EXCLUSIVE COLLECTIVE BARGAINING
REPRESENTATIVE. NOR IS THERE ANY INDICATION THAT THE QUANTUM OF MATTERS
RELATING TO THE COLLECTIVE BARGAINING RELATIONSHIP DISCUSSED AND
REPORTED BY AN ACTIVITY DIRECTLY TO EMPLOYEES IS A DETERMINING FACTOR.
IN SUCH CIRCUMSTANCES, I AM CONSTRAINED TO FIND THAT WILSON'S
REPUBLICATION OF THE MEMORANDUM HEREIN TO PAID PROJECT EMPLOYEES
CONSTITUTED A VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER.
RESPONDENT DPC CONTENDS THAT IT WAS THE PAST PRACTICE IN THE PAID
PROJECT TO CIRCULATE SUCH MEMORANDA TO THE EMPLOYEES. RESPONDENT DPC
ATTEMPTS TO SUPPORT THIS CONTENTION BASED UPON THE TESTIMONY OF WILSON
GIVEN IN RESPONSE TO CROSS-EXAMINATION AS FOLLOWS:
"Q. (BY MISS COOPER) MR. WILSON, DID YOU GENERALLY RECEIVE
MANAGEMENT MEMORANDUMS OF THIS SORT? HAD YOU RECEIVED OTHER
MEMORANDUMS"
A. YES, MA'AM.
Q. WAS IT GENERALLY YOUR POLICY TO SEND THESE MEMORANDUMS AROUND?
A. I FELT IF THEY HAVE GENERAL INTEREST TO THE EMPLOYEES, YES MA'AM,
I ROUTE THEM AROUND FOR THEM TO READ."
HOWEVER, ACCORDING TO THE TESTIMONY OF MARTHA BOEHM, /53/ THE PARTIES
HAD NOT AGREED TO PUBLISH THE MATTER OF THE STATUS OF THE AGREEMENT.
MOREOVER, BOEHM CREDIBLY TESTIFIED THAT WHILE THERE HAD BEEN PRIOR
DISCUSSIONS WITH THE ACTIVITY'S MANAGEMENT WITH REGARD TO JOINTLY
PUBLISHING THE SUBJECT MATTER OF CONSULTATIONS, SHE DID NOT RECALL
HAVING EVER SEEN ANY OTHER ACTIVITY DISTRIBUTION OF MEMORANDA CONCERNING
SUBJECT MATTERS DISCUSSED IN A CONSULTATION SESSION.
UNDER ALL THE CIRCUMSTANCES, I FIND THAT THERE WAS NO MUTUAL
AGREEMENT BETWEEN THE PARTIES CONCERNING THE ACTIVITY'S RIGHT TO
DIRECTLY COMMUNICATE WITH UNIT EMPLOYEES OVER MATTERS RELATING TO THE
COLLECTIVE BARGAINING RELATIONSHIP. I FURTHER FIND THAT THE EVIDENCE
DOES NOT ESTABLISH THE EXISTENCE OF A PAST PRACTICE WITH REGARD TO THE
DIRECT COMMUNICATION OF SUCH MATTERS IN THE PAID PROJECT.
V. CASE NOS. 63-4722(CA) AND 63-4760(CA)
THE CASES HEREIN WERE FILED BY THE UNION AGAINST VETERANS
ADMINISTRATION, DEPARTMENT OF DATA MANAGEMENT, WASHINGTON, D.C.,
HEREAFTER CALLED RESPONDENT DMD. /54/
(A) CASE NO. 63-4722(CA)
THE COMPLAINT IN CASE NO. 63-4722(CA) ALLEGES THAT RESPONDENT DMD
VIOLATED SECTION 19(A)(1)
OF THE ORDER BY CERTAIN ALLEGED DECERTIFICATION ACTIVITY /55/ OF
LARRY DEINLEIN, AN AUDITOR
EMPLOYED BY RESPONDENT DMD. COMPLAINANT ALLEGES THAT DEINLEIN IS A
MANAGEMENT OFFICIAL OR, BY
VIRTUE OF HIS PARTICULAR DUTIES, HAS A SPECIAL STATUS WHICH PRECLUDES
HIM FROM PARTAKING IN
THE DECERTIFICATION EFFORT OR MAKING KNOWN HIS PREFERENCES CONCERNING
A LABOR ORGANIZATION OR
ITS DECERTIFICATION. /56/ THE COMPLAINT SPECIFICALLY ALLEGES THAT
DEINLEIN: (1)
PARTICIPATED IN SOLICITING SIGNATURES FOR DECERTIFICATION ON JULY 25,
1973; (2) DISCUSSED THE
PETITION FOR DECERTIFICATION WITH EMPLOYEES ON JULY 25, DURING DUTY
HOURS, (3) MET WITH
SEVERAL EMPLOYEES WHO SPONSORED THE PETITION DURING DUTY HOURS ON
JULY 25 AND 26 IN THE AUSTIN
CENTER'S SECOND FLOOR LOBBY; AND, (4) ON JULY 27 MET FOR THIRTY
MINUTES DURING DUTY HOURS WITH
EMPLOYEES, OSTENSIBLY TO DISCUSS MATTERS PERTAINING TO THE
DECERTIFICATION EFFORT.
SINCE AUGUST 1968, LARRY DEINLEIN HAS BEEN A GS-12 SYSTEMS AUDITOR
EMPLOYED BY THE ADP
SYSTEMS AUDIT DIVISION /57/ OF RESPONDENT DMD, PERFORMING HIS
AUDITING DUTIES AT THE AUSTIN
CENTER. DEINLEIN IS RESPONSIBLE TO SUPERVISORY SYSTEMS AUDITOR,
HAROLD HART WHO IN TURN IS
RESPONSIBLE TO THE AUDIT DIVISION'S CENTRAL OFFICE WHICH IS LOCATED
IN WASHINGTON, D.C. AUDIT
DIVISION EMPLOYEES ARE NOT UNDER THE SUPERVISION OF AUSTIN CENTER
PERSONNEL. DEINLEIN, AT ALL
TIMES MATERIAL HERETO, WAS IN CHARGE OF AUDITING PROGRAMS IN THE LOG
1 PROJECT AND A NUMBER OF
OTHER PROJECTS AT AUSTIN CENTER. HIS DUTIES CONSIST OF TESTING
COMPUTER PROJECTS PROCESSED IN
HIS ASSIGNED AREAS AND SEEING TO IT THAT THE PARTICULAR PROJECTS
MEETS SPECIFICATIONS AND IS
FREE OF ERROR. DEINLEIN'S CHIEF CONCERN IS THAT THE COMPUTER PROGRAM
BEING TESTED CORRECTLY
PRODUCES WHAT IT WAS DESIGNED TO PRODUCE. ACCORDING TO HIS JOB
DESCRIPTION, DEINLEIN, AS AN
AUDITOR, INTER ALIA, "(D)ETERMINES THAT ALL OUTPUT IS CORRECT AND
PROPER. . . . " AND
"(E)VALUATES EXCEPTIONS DISCOVERED IN THE AUDIT AS TO WHETHER THE
DISCREPANCIES WERE CAUSED BY
IMPROPER OR INADEQUATE PROGRAMMING OR BY CLERICAL MAINTENANCE
OPERATIONS." DEINLEIN'S JOB
DESCRIPTION ALSO PROVIDES THAT HE "(R)EVIEWS THE SYSTEM TO DETERMINE
THAT THE PROCEDURES
PROVIDE ADEQUATE EXTERNAL AND INTERNAL CONTROLS, AND AUDIT TRIALS."
THE JOB DESCRIPTION
FURTHER STATES: "THE SCOPE, TECHNIQUES AND METHODS FOR THIS WORK,
WHICH COVERS THE AUDITING
OF ALL PHASES OF INTEGRATED AND AUTOMATIC DATA PROCESSING, CANNOT BE
PRESCRIBED EXCEPT IN A
GENERAL WAY; THEREFORE, THE PROBLEMS ENCOUNTERED ARE TO BE RESOLVED
ON THE BASIS OF JUDGMENT
AND EXPERIENCE. THE INCUMBENT WILL BE GUIDED BY POLICIES,
PROCEDURES, INSTRUCTIONS AND
ACCEPTED AUDITING TECHNIQUES AND METHODS."
IF DEINLEIN DISCOVERS AN ERROR IN THE PROGRAM IT IS RETURNED TO THE
RESPONSIBLE PROGRAMMER
WITH A WRITTEN AND/OR ORAL EXPLANATION OF THE DEFICIENCIES. IF A
WRITTEN REPORT IS MADE, A
COPY WOULD GO TO THE PROJECT SUPERVISOR. AT TIMES, THE SUPERVISOR IS
ALSO ADVISED OF ANY ORAL
REPORT GIVEN TO THE PROGRAMMER. HOWEVER, DEINLEIN IS NEVER ASKED HOW
WELL A PROGRAMMER
PERFORMS HIS DUTIES AND THE EVIDENCE DOES NOT ESTABLISH THAT
DEINLEIN'S REPORTS PLAY ANY PART
IN THE EVALUATION OF PROGRAMMERS.
THE EVIDENCE ADDUCED AT THE HEARING ESTABLISHED THAT DEINLEIN DOES
NOT POSSESS ANY INDICIA
OF SUPERVISORY OR MANAGERIAL AUTHORITY WITHIN THE MEANING OF THE
ORDER. I FURTHER FIND THAT
IT HAS NOT BEEN ESTABLISHED THAT DEINLEIN, BY VIRTUE OF HIS DUTIES
AND RESPONSIBILITIES
POSSESSES ANY "SPECIAL STATUS" WHICH WOULD PRECLUDE HIM FROM
PARTAKING IN THE ACTIVITY HE
ALLEGEDLY ENGAGED IN AS SET FORTH IN THE COMPLAINT. /58/ ACCORDINGLY,
I SHALL RECOMMEND THAT
THE COMPLAINT HEREIN BE DISMISSED. /59/
(B) CASE NO. 63-4760(CA)
THE COMPLAINT HEREIN ALLEGES THAT ON TWO OCCASIONS, LARRY DEINLEIN,
AS CREDIT UNION
TREASURER, LOUDLY DISCUSSED THE UNION PRESIDENT'S FINANCIAL
DIFFICULTIES AND POSSIBILITY OF
AUTOMOBILE REPOSSESSION WITH THE PRESIDENT'S OFFICIAL REPRESENTATIVE
AND THE UNION'S ACTING
PRESIDENT. IT IS ALLEGED THAT THESE CONVERSATIONS INVOLVING
PERSONAL, CONFIDENTIAL MATTERS
OCCURRED IN AREAS WHERE THEY COULD BE OVERHEARD BY OTHERS AND WERE
DELIBERATELY CALCULATED TO
DISCREDIT THE UNION PRESIDENT AND PUT THE UNION IN A "BAD LIGHT",
THEREBY ALLEGEDLY VIOLATING
SECTION 19(A)(1) AND (2) OF THE ORDER.
FOR THE REASONS SET FORTH ABOVE WITH REGARD TO DEINLEIN'S STATUS, I
SIMILARLY RECOMMEND
THAT THE COMPLAINT IN THIS CASE BE DISMISSED. /60/
IN ITS PRAYER FOR RELIEF COMPLAINANT SUGGESTS THAT AN APPROPRIATE
REMEDY TO VIOLATIONS OF THE ORDER RELATED TO RESPONDENT'S ASSISTANCE IN
THE DECERTIFICATION EFFORT SHOULD INCLUDE A DISMISSAL OF THE
DECERTIFICATION PETITION CURRENTLY PENDING WITH THE U.S. DEPARTMENT OF
LABOR (CASE NO. 63-4708(DR)).
AS I INTERPRET THE REGULATIONS OF THE ASSISTANT SECRETARY, UNDER
SECTION 202.2(F), MATTERS CONCERNING THE ADEQUACY AND VALIDITY OF THE
SHOWING OF INTEREST TO SUPPORT A PETITION ARE INITIALLY UNDER THE SOLE
JURISDICTION OF THE AREA ADMINISTRATOR. ACCORDING TO SECTION
202.2(F)(2), AFTER THE AREA ADMINISTRATOR INVESTIGATES A PETITION WHICH
HAS BEEN CHALLENGED, THE REGIONAL ADMINISTRATOR "SHALL TAKE SUCH ACTION
AS HE DEEMS APPROPRIATE. . . . " HOWEVER, IN SETTING THE CASES BEFORE
ME FOR HEARING, THE REGIONAL ADMINISTRATOR OBVIOUSLY DID NOT DEEM IT
APPROPRIATE TO SET FOR HEARING THE MATTER OF THE VALIDITY OF THE
DECERTIFICATION PETITION SINCE THE NOTICE OF HEARING CONTAINS NO MENTION
OF THE PETITION. ACCORDINGLY, I CONCLUDE THAT UNDER THE SCHEME OF THE
REGULATIONS I AM WITHOUT AUTHORITY TO MAKE A RECOMMENDATION IN THESE
UNFAIR LABOR PRACTICE PROCEEDINGS WITH REGARD TO THE DISMISSAL OF THE
DECERTIFICATION PETITION.
IN VIEW OF THE ENTIRE FOREGOING, I MAKE THE FOLLOWING RECOMMENDATIONS
TO THE ASSISTANT SECRETARY:
1. THAT RESPONDENT DPC BE FOUND TO HAVE ENGAGED IN CONDUCT VIOLATIVE
OF SECTION
19(A)(1)(2) AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED, AS SET
FORTH ABOVE.
2. THAT AN ORDER WHICH IS DESIGNED TO EFFECTUATE THE POLICIES OF THE
ORDER, AS HEREINAFTER
SET FORTH, BE ADOPTED.
3. THAT ANY ALLEGED VIOLATIONS OF THE ORDER NOT SPECIFICALLY FOUND
HEREIN BE DISMISSED.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE VETERANS
ADMINISTRATION, VETERANS ADMINISTRATION DATA PROCESSING CENTER, AUSTIN,
TEXAS SHALL:
1. CEASE AND DESIST FROM:
(A) CURTAILING THE MOVEMENT OF UNION STEWARD MARTHA BOEHM, OR ANY
OTHER UNION STEWARD, IN ORDER TO APPEASE ANTI-UNION SENTIMENTS OF
EMPLOYEES;
(B) REVEALING CONFIDENTIAL OR PERSONAL INFORMATION RECEIVED IN THE
COURSE OF LABOR-MANAGEMENT DEALINGS WITH NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, IND., LOCAL 1745, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE,
WHERE THE EFFECT IS TO DISSUADE EMPLOYEES FROM CONSULTING WITH THE UNION
OR SEEKING THE UNION'S ASSISTANCE ON MATTERS CONCERNING GRIEVANCES,
PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING WORKING
CONDITIONS;
(C) READING OR CIRCULATING AMONG EMPLOYEES FOR THEIR READING
COMMUNICATIONS PERTAINING TO THE COLLECTIVE BARGAINING RELATIONSHIP
BETWEEN VETERANS ADMINISTRATION, VETERANS ADMINISTRATION DATA PROCESSING
CENTER, AUSTIN, TEXAS, AND NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
IND., LOCAL 1745, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, UNLESS THERE
EXISTS A MUTUAL AGREEMENT TO PERMIT SUCH ACTION;
(D) PARTAKING IN OR LENDING SUPPORT TO AN EFFORT TO DECERTIFY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, IND., LOCAL 1745, THE
EMPLOYEES' EXCLUSIVE REPRESENTATIVE;
(E) FAILING TO TAKE TIMELY AND ADEQUATE MEASURES TO DISASSOCIATE
VETERANS ADMINISTRATION, VETERANS ADMINISTRATION DATA PROCESSING CENTER,
AUSTIN, TEXAS, FROM THE IMPLICATION THAT IT SUPPORTS DECERTIFICATION OF
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, IND., LOCAL 1745, THE
EMPLOYEES' EXCLUSIVE REPRESENTATIVE, BY ALLOWING THE USE OF ITS INTERNAL
MAIL DISTRIBUTION SERVICE IN FURTHERANCE OF DECERTIFICATION.
(F) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) POST AT ITS FACILITY AT VETERANS ADMINISTRATION DATA PROCESSING
CENTER, AUSTIN, TEXAS, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX"
ON FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE
SIGNED BY THE DIRECTOR, VETERANS ADMINISTRATION, VETERANS ADMINISTRATION
DATA PROCESSING CENTER, AUSTIN, TEXAS, AND THEY SHALL BE POSTED AND
MAINTAINED BY HIM FOR SIXTY (60) CONSECUTIVE DAYS THEREAFTER, IN
CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE
NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE DIRECTOR SHALL TAKE
REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
OR COVERED BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED: FEBRUARY 7, 1975
WASHINGTON, D.C.
WE WILL NOT CURTAIL THE MOVEMENT OF UNION STEWARD MARTHA BOEHM, OR
ANY OTHER UNION STEWARD, IN ORDER TO APPEASE ANTI-UNION SENTIMENTS OF
EMPLOYEES.
WE WILL NOT REVEAL CONFIDENTIAL OR PERSONAL INFORMATION RECEIVED IN
THE COURSE OF LABOR-MANAGEMENT DEALINGS WITH NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, IND., LOCAL 1745, THE EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, WHERE THE EFFECT IS TO DISSUADE EMPLOYEES FROM
CONSULTING WITH THE UNION OR SEEKING THE UNION'S ASSISTANCE ON MATTERS
CONCERNING GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER
MATTERS AFFECTING WORKING CONDITIONS.
WE WILL NOT READ OR CIRCULATE AMONG EMPLOYEES FOR THEIR READING
COMMUNICATIONS PERTAINING TO THE COLLECTIVE BARGAINING RELATIONSHIP
BETWEEN VETERANS ADMINISTRATION, VETERANS ADMINISTRATION DATA PROCESSING
CENTER, AUSTIN, TEXAS, AND NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
IND., LOCAL 1745, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, UNLESS THERE
EXIST A MUTUAL AGREEMENT TO PERMIT SUCH ACTION.
WE WILL NOT PARTAKE IN OR LEND SUPPORT TO AN EFFORT TO DECERTIFY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, IND., LOCAL 1745, THE
EMPLOYEES' EXCLUSIVE REPRESENTATIVE.
WE WILL NOT FAIL TO TAKE TIMELY AND ADEQUATE MEASURES TO DISASSOCIATE
VETERANS ADMINISTRATION, VETERANS ADMINISTRATION DATA PROCESSING CENTER,
AUSTIN, TEXAS, FROM THE IMPLICATION THAT IT SUPPORTS DECERTIFICATION OF
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, IND., LOCAL 1745, THE
EMPLOYEES' EXCLUSIVE REPRESENTATIVE, BY ALLOWING THE USE OF ITS INTERNAL
MAIL DISTRIBUTION SERVICE IN FURTHERANCE OF DECERTIFICATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
DATED . . . BY . . .
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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR, WHOSE ADDRESS IS: ROOM 2511, 911 WALNUT STREET, KANSAS CITY,
MISSOURI 64106.
/1/ SUBSEQUENT TO THE CLOSE OF HEARING COMPLAINANT'S COUNSEL FILED A
MOTION FOR THE CORRECTION OF THE TRANSCRIPT. THERE BEING NO OBJECTION
TO SAID PROPOSED CORRECTIONS, THE MOTION IS HEREBY GRANTED.
/2/ BY LETTER DATED JULY 8, 1974, COMPLAINANT'S COUNSEL MOVED TO
STRIKE A PORTION OF RESPONDENT COUNSEL'S BRIEF. THE MATTER IN QUESTION
CONCERNS IDENTIFYING WHAT DOCUMENT A WITNESS WAS REFERRING TO DURING HIS
TESTIMONY.
MY FINDINGS MUST BE BASED UPON WHAT EVIDENCE THE RECORD DISCLOSES AND
NOT HOW A BRIEF MIGHT CHARACTERIZE THAT EVIDENCE. WHAT IS STATED IN A
BRIEF CANNOT ADD NOR TAKE AWAY WHAT THE TRANSCRIPT ITSELF DISCLOSES AND
ALL ARE BOUND BY THE CLARITY OR LACK OF THE TRANSCRIPT. HOWEVER,
STRIKING A PORTION OF COUNSEL'S BRIEF IN THIS MATTER IS NOT NECESSARY.
THE MOTION TO STRIKE IS DENIED.
/3/ THE PARTIES STIPULATED THAT MR. WILSON IS A SUPERVISOR WITHIN THE
MEANING OF THE ORDER.
/4/ THE PAID PROJECT HAD NO UNION STEWARD PRIOR TO MRS. BOEHM'S
APPOINTMENT. MRS. BOEHM HAD NO PREVIOUS EXPERIENCE AS A STEWARD BUT, AT
THE TIME, WAS SERVING AS AN ADMINISTRATIVE ASSISTANT TO THE UNION'S
PRESIDENT. IN SEPTEMBER 1973, MRS. BOEHM BECAME THE UNION'S FIRST
VICE-PRESIDENT.
/5/ UNDER THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT A STEWARD
IS REQUIRED TO INFORM THE SUPERVISOR WHEN LEAVING THE WORK AREA ON UNION
BUSINESS. ARTICLE V SECTION 4 OF THE AGREEMENT PROVIDES:
"SECTION 4. REASONABLE TIME OFF DURING WORKING HOURS WILL BE GRANTED
TO UNION OFFICIALS
FOR ATTENDANCE AT MEETINGS WITH MANAGEMENT OFFICIALS CONCERNING
MATTERS OF MUTUAL CONCERN. IF
IT BECOMES NECESSARY FOR THE UNION OFFICIAL TO LEAVE HIS WORK AREA,
HE SHALL OBTAIN PERMISSION
FROM HIS IMMEDIATE SUPERVISOR. PERMISSION WILL BE GRANTED IN THE
ABSENCE OF COMPELLING
CIRCUMSTANCES. THE OFFICIAL WILL INFORM HIS SUPERVISOR OF THE
GENERAL NATURE OF THE BUSINESS
TO BE CONDUCTED, AND THE APPROXIMATE AMOUNT OF TIME HE EXPECTS TO BE
ABSENT FROM HIS WORK
AREA. IF THE UNION OFFICIAL IS TO MEET WITH ANOTHER EMPLOYEE, HE
WILL FIRST ASCERTAIN THAT
THE EMPLOYEE IS PRESENT AND THAT THE EMPLOYEE HAS OBTAINED PERMISSION
FROM HIS SUPERVISOR TO
MEET WITH THE OFFICIAL. UPON RETURN, HE WILL ADVISE HIS SUPERVISOR
OF HIS RETURN. BOTH THE
EMPLOYER AND THE UNION WILL STRIVE TO ACCOMPLISH ALL SUCH DUTIES WITH
AS MUCH SPEED AS
POSSIBLE."
/6/ SEE U.S. ARMY, NATICK LABORATORIES, NATICK MASSACHUSETTS, A/SLMR
NO. 381 AND CF. DIRECTORATE OF MAINTENANCE, PRODUCTION BRANCH, WARNER
ROBINS AIR MATERIAL AREA, ROBINS AIR FORCE BASE, A/SLMR NO. 374, REPORT
AND RECOMMENDATIONS, FN. 18, WHERE THE ASSISTANT SECRETARY ADOPTED THE
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW
JUDGES WITHOUT COMMENT. BUT SEE VANDENBERG, AFB,
/13/ CF. UNITED STATES ARMY SCHOOL/TRAINING CENTER FORT NO. 435.
/7/ THE ACTIVITY CONTENDS MRS. CROWSON WAS, AT THE TIME, A
CONFIDENTIAL EMPLOYEE AND THE UNION CONTENDS SHE WAS A UNIT EMPLOYEE.
HOWEVER, WHETHER OR NOT MRS. CROWSON WAS A MEMBER OF THE COLLECTIVE
BARGAINING UNIT IS IMMATERIAL TO A RESOLUTION OF THE COMPLAINT HEREIN.
/8/ APPROXIMATELY 19 UNIT EMPLOYEES WORKED IN THE PAID PROJECT.
/9/ NO OTHER WITNESS TESTIFIED WITH REGARD TO THIS MEETING.
/10/ WILSON ACKNOWLEDGED HE COULD HAVE ACHIEVED THE INTENDED RESULT
WITHOUT READING THE ENTIRE LETTER.
/11/ I ALSO NOTE THAT AS FOUND ABOVE, WILSON WAS SENSITIVE AND
RESPONSIVE TO THE ANTI-UNION SENTIMENT IN HIS PROJECT.
/12/ SEE VETERANS ADMINISTRATION CENTER, BATH, NEW YORK, A/SLMR NO.
433.
/13/ CF. UNITED STATES ARMY SCHOOL/TRAINING CENTER FORT MCCLELLAN,
ALABAMA, A/SLMR NO. 42.
/14/ WILSON INFORMED BOEHM THAT HE ASKED BURKETT TO ASSIST HIM WITH
THE APPRAISAL BECAUSE OF THE SHORT PERIOD BOEHM HAD BEEN UNDER WILSON'S
SUPERVISION. HOWEVER, WILSON TESTIFIED THAT THE RATING WAS HIS OWN
PRODUCT.
/15/ THERE IS NO EVIDENCE THAT WILSON WAS A MEMBER OF THE RATING
PANEL OR PARTICIPATED IN THAT PORTION OF THE EVALUATION.
/16/ EXCEPT FOR ONE RATING FACTOR, THE APPRAISER EVALUATES THE
EMPLOYEE'S PERFORMANCE FROM 5 LEVELS OF PROFICIENCY.
/17/ BOEHM TESTIFIED THAT SHE THOUGH SHE MISSED BEING RANKED "HIGHLY
QUALIFIED" BY TWO POINT.
/18/ CF. U.S. DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL SHIPYARD,
A/SLMR NO. 445 AND U.S. DEPARTMENT OF THE INTERIOR, NATIONAL PARK
SERVICE, JEFFERSON NATIONAL EXPANSION MEMORIAL, ST. LOUIS, MISSOURI,
A/SLMR NO. 402.
/19/ ANS COBOL IS AN ABBREVIATION FOR AMERICAN NATIONAL STANDARD
COMMON BUSINESS ORIENTED LANGUAGE. IT IS A TYPE OF TECHNICAL "LANGUAGE"
USED IN COMPUTER OPERATIONS.
/20/ MRS. BOEHM KNEW OF NO OTHER PAID PROJECT EMPLOYEE TREATED
SIMILARLY.
/21/ CF. DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL SHIPYARD, SUPRA AND
U.S. DEPARTMENT OF THE INTERIOR (NATIONAL PARK SERVICE) SUPRA.
/22/ THE WRITTEN CHARGE WAS FILED WITH THE ACTIVITY ON JULY 26, 1973.
/23/ FOR CONVENIENCE, I SHALL CONSIDER THE ALLEGATIONS OF BOTH
COMPLAINTS UNDER ONE HEADING.
/24/ AT LEAST 75 PERCENT OF THE UNIT EMPLOYEES WORK ON THE 8:00 A.M.
TO 4:30 P.M. SHIFT.
/25/ FORM LMSA 60(10/72), CASE NO. 63-4708(DR).
/26/ JAMES HOWELL WAS A UNIT EMPLOYEE WHEN THE DECERTIFICATION EFFORT
WAS IN PROGRESS BUT WAS NOT EMPLOYED BY RESPONDENT DPC AT THE TIME OF
THE HEARING HEREIN.
/27/ HAVENS WAS NOT CALLED TO TESTIFY AT THE HEARING. HIS DUTIES
WERE ASCERTAINED PRIMARILY THROUGH THE TESTIMONY OF GORDON.
/28/ FROM JULY 73 TO MAY 74, TEN TO TWELVE SUCH DELEGATIONS WERE
ISSUED RANGING FROM TWO DAYS TO THREE WEEKS IN DURATION.
/29/ GORDON'S POSITION DESCRIPTION READS, IN PART:
"PLANS, DEVELOPS, AND PREPARES INTERNAL PROCEDURES FOR INPUT AND
OUTPUT
PROCESSING. MODIFIES SUCH PROCEDURES, AS REQUIRED, CAUSED BY
EQUIPMENT CHANGES, PROGRAM
EMPHASIS, OR OTHER CHANGES. PLANS OPERATION TO MEET CHANGES IN
WORKLOAD RESULTING FROM NEW OR
REVISED PROCEDURES AND KEEPS EMPLOYEES INFORMED OF PENDING CHANGE.
RECOMMENDS SCHEDULE
CHANGES TO ASSURE ACCURATE AND TIMELY WORK FLOW IN ORDER TO MEET
REQUIRED DEADLINES AND
EMERGENCY CONDITIONS. ORIENTS NEW EMPLOYEES ASSIGNED TO THE SECTION
AND CONDUCTS REQUIRED
TRAINING, PREPARES SCHEDULES AND DISTRIBUTES WORK TO MAINTAIN PROPER
BALANCE ON QUALITY AND
QUANTITY AS NEEDED."
/30/ I HAVE TAKEN PARTICULAR NOTE OF THE SUBSTANTIAL AMOUNT OF TIME
HAVENS IS AWAY FROM THE SECTION AND ACCORDINGLY COULD NOT BE PERSONALLY
INVOLVED IN THE DAY TO DAY ASSIGNMENT AND WORK STATION SUPERVISION OF
SECTION EMPLOYEES.
/31/ BOTH HOWELL AND MAXON WERE ACTIVE IN THE DECERTIFICATION
MOVEMENT.
/32/ SEE ANTILLES CONSOLIDATED SCHOOLS, ROOSEVELT ROADS, CEIBA,
PUERTO RICO, A/SLMR NO. 349, AND CHARLESTON NAVAL SHIPYARD, A/SLMR NO.
1, FN. 17.
/33/ WOOD, CROWSON, ROGERS AND MOYA WERE NAMED IN THE LEAFLET AND
WERE ASSIGNED TO WILSON'S PROJECT.
/34/ USE OF THE INTERNAL MAIL SERVICE WAS NOT AVAILABLE TO THE UNION.
/35/ ALTHOUGH THERE WAS TESTIMONY THAT THE ACTIVITY'S MESSENGERS
WERE, AT SOME UNDISCLOSED TIME ON JULY 25 OR JULY 26, TOLD NOT TO PICK
UP OR DELIVER THE DECERTIFICATION LEAFLETS, THE EVIDENCE DOES NOT
ESTABLISH THAT THIS INFORMATION OR THE REASONS THEREFORE WAS WIDELY
CONVEYED TO UNIT EMPLOYEES.
/36/ SEE ANTILLES CONSOLIDATED SCHOOLS (SUPRA) AND CHARLESTON NAVAL
SHIPYARD (SUPRA).
/37/ COMPLAINANT ARGUES THAT THE PARTIES' COLLECTIVE BARGAINING
AGREEMENT DOES NOT PERMIT SIMILAR DUTY-TIME UNION ACTIVITY AND
ACCORDINGLY THE ACTIVITY MAY NOT ALLOW DECERTIFICATION ACTIVITY ON
DUTY-TIME.
/38/ SOME DECERTIFICATION LEAFLETS WERE TRANSFERRED BETWEEN
PRO-DECERTIFICATION EMPLOYEES DURING DUTY-TIME.
/39/ TESTIMONY OFFERED RELATIVE TO THE PRECISE NATURE OF THESE
DISCUSSIONS WAS SPARSE AND CONCLUSIONARY. ONE WITNESS UPON WHOSE
TESTIMONY THE UNION PLACES SUBSTANTIAL RELIANCE TESTIFIED THAT THE
DECERTIFICATION LEAFLET "WAS TALKED ABOUT BY ALMOST EVERYBODY." THAT
WITNESS ACKNOWLEDGED THAT HE HEARD ONLY BITS AND PIECES OF CONVERSATIONS
AND COULD ONLY RECALL SPECIFICALLY THAT ON ONE OCCASION THE PARTICIPANTS
IN THE DECERTIFICATION DISCUSSION "WERE INTERESTED IN THE COUNT OF THE
VOTES."
/40/ I FIND NO MERIT TO THE COMPLAINANT'S ARGUMENT THAT THE FACTS
HEREIN ARE SUFFICIENT TO CIRCUMSTANTIALLY PROVE THAT WILSON AND YOCUM
HAD KNOWLEDGE OF DUTY-TIME DECERTIFICATION ACTIVITY.
/41/ WHILE MAXSON HAS "CRITICIZED" EMPLOYEES FOR MISTAKES MADE ON
PROJECT WORK, THE EVIDENCE FAILS TO ESTABLISH THAT THIS CRITICISM
CONSTITUTES "DISCIPLINE" WITHIN THE MEANING OF SECTION 2(C) OF THE
ORDER.
/42/ ONLY AS AN "ACTING" SUPERVISOR DOES MAXSON HAVE AUTHORITY TO
GRANT LEAVE TO EMPLOYEES.
/43/ I DO NOT CONSIDER MAXSON'S ATTENDANCE AT MONTHLY SYSTEMS
DIVISION GROUP LEADERS MEETINGS TO REQUIRE A DIFFERENT CONCLUSION.
THUS, THE PRIMARY PURPOSE OF THESE MEETINGS IS DISSEMINATION AND
DISCUSSION OF TECHNICAL INFORMATION. THE MEETINGS ARE OPEN TO ANY
SUPERVISORY OR OTHER EMPLOYEE WHO WISHES TO ATTEND. AS A RESULT OF
THESE DISCUSSIONS, RECOMMENDATIONS RELATIVE TO VARIOUS ASPECTS OF THE
ACTIVITY'S WORK MAY BE MADE TO MANAGEMENT. SUGGESTIONS WHICH
ENCOMPASSED A SUBSTANTIAL MODIFICATION IN WORK PROCEDURES WOULD HAVE TO
BE APPROVED BY MANAGEMENT BEFORE BEING PUT INTO EFFECT WHILE MINOR
CHANGES IN COMPUTER TECHNIQUES MIGHT MERELY BE EFFECTUATED WITHOUT
FURTHER CLEARANCE. THE ONLY EXAMPLE GIVEN AT THE HEARING OF A CHANGE IN
PROCEDURES WAS INCREASING FROM TEN TO FIFTEEN THE MAXIMUM NUMBER OF
CARDS WHICH COULD BE BROUGHT TO AN EXPRESS KEYPUNCH OPERATOR AT ANY ONE
TIME. THIS CHANGE WAS EFFECTUATED BY MANAGEMENT ISSUING A MEMORANDUM TO
EMPLOYEES. ACCORDINGLY, IN THESE CIRCUMSTANCES, I FIND THAT THE RECORD
EVIDENCE WITH REGARD TO ATTENDANCE AT THESE MEETINGS AND ACTIONS TAKEN
AS A RESULT THEREOF IS INSUFFICIENT TO CONSTITUTE INDICIA OF SUPERVISORY
OR MANAGERIAL AUTHORITY.
/44/ SEE TREASURY DEPARTMENT, BUREAU OF CUSTOMS, REGION IV, A/SLMR
NO. 152; ARMY AND AIR FORCE EXCHANGE SERVICE, ETC., RICHARDS-GEBAUR AIR
FORCE BASE, MISSOURI, A/SLMR NO. 219: AND GENERAL SERVICES
ADMINISTRATION, MEMPHIS, TENNESSEE,
/45/ SINCE DECEMBER 1973, BECK HAS BEEN A SUPERVISOR COMPUTER
PROGRAMMER IN THE ACTIVITY'S FACILITIES PLANNING AND CONSTRUCTION
SECTION.
/46/ JOB ASSIGNMENT ACCOUNTED FOR APPROXIMATELY FIVE PERCENT OF
BECK'S WORK TIME.
/47/ WITH REGARD TO BECK'S ATTENDANCE AT SYSTEMS DIVISION GROUP
LEADERS MEETINGS, SEE DISCUSSION RELATIVE TO THESE MEETINGS, FN. 43,
PART III, SECTION (A) ABOVE.
/48/ SEE TREASURY DEPARTMENT, BUREAU OF CUSTOMS, SUPRA; ARMY AND AIR
FORCE EXCHANGE SERVICE, ETC., SUPRA; AND GENERAL SERVICES
ADMINISTRATION, SUPRA.
/49/ THE UNION IN ITS BRIEF SUGGESTS THAT THE MEMORANDUM WAS PASSED
AROUND BY WILSON "TO ALL EMPLOYEES IN HIS PROJECT WITH INSTRUCTIONS TO
READ THE DOCUMENT, INITIAL THE ATTACHED ROUTING SLIP, AND PASS (IT) ON."
WHILE WILSON ACKNOWLEDGED THAT HE CIRCULATED THE MEMORANDUM TO EMPLOYEES
"TO READ", HE DID NOT TESTIFY THAT EMPLOYEES WERE REQUIRED TO "INITIAL"
THE ROUTING SLIP. HOWEVER, BOEHM, A PAID PROJECT EMPLOYEE TESTIFIED
THAT THE MEMORANDUM AND "BUCK SLIP" WAS BROUGHT TO HER BY ANOTHER
EMPLOYEE "WHO WAS AHEAD OF (HER) ON THE INITIALLING." IN ALL THE
CIRCUMSTANCES, I FIND THAT THE PROCEDURE USED TO CIRCULATE THE
MEMORANDUM ALSO INCLUDED INITIALLING.
/50/ CONTRARY TO COMPLAINANT'S CONTENTION, I FIND THAT THE MEMORANDUM
WAS NOT WRITTEN IN SUCH A WAY AS TO MAKE THE UNION LOOK POWERLESS.
/51/ RESPONDENT DPC TAKES THE POSITION THAT THE COMPLAINT DOES NOT
ALLEGE A FAILURE TO CONSULT ABOUT DISTRIBUTION OF THE MEMORANDUM BUT
MERELY ALLEGES A FAILURE TO CONSULT WITH REGARD TO THE CONTENT OF THE
MEMO. THE COMPLAINT SPECIFICALLY MENTIONS THAT WILSON "CAUSED A MEMO TO
BE CIRCULATED TO ALL EMPLOYEES IN HIS PROJECT" AND ALSO SPECIFICALLY
ALLEGES THAT "THE VERY WRITING AND EVEN LIMITED DISTRIBUTION" VIOLATED
THE ORDER. ACCORDINGLY, I FIND, AS I DID AT THE HEARING, THAT THE
LANGUAGE OF THE COMPLAINT ENCOMPASSES THE DISTRIBUTION OF THE
MEMORANDUM.
/52/ THE ACTIVITY CHARACTERIZED AS "BLACKMAIL" THE UNION'S OFFER TO
WITHDRAW AN UNFAIR LABOR PRACTICE CHARGE IF THE ACTIVITY WOULD AGREE TO
THE UNION'S CONTRACT PROPOSALS WITH SOME MODIFICATION.
/53/ AS HEREINABOVE STATED, (CASE NO. 63-4716), SINCE MARCH 27, 1973,
MRS. BOEHM WAS AN EMPLOYEE AND UNION STEWARD IN THE PAID PROJECT AND
ADMINISTRATIVE ASSISTANT TO THE UNION'S PRESIDENT. IN SEPTEMBER 1973,
BOEHM BECAME THE UNION'S VICE PRESIDENT.
/54/ THE NAME OF RESPONDENT DMD APPEARS AS AMENDED AT THE HEARING.
/55/ AS DISCUSSED ABOVE, THE DECERTIFICATION ACTIVITY, OCCURRED AT
THE VETERANS ADMINISTRATION DATA PROCESSING CENTER, AUSTIN, TEXAS
(HEREINAFTER CALLED THE AUSTIN CENTER).
/56/ COMPLAINANT RELIES, IN PART, ON THE PROVISIONS OF SECTIONS 1(B)
AND 3(B)(4) OF THE ORDER TO SUPPORT ITS CONTENTION. I FIND THESE
PROVISIONS ARE INAPPOSITE TO THE ISSUE HEREIN AND ACCORDINGLY THE
CONTENTION BASED UPON THESE PROVISIONS OF THE ORDER IS REJECTED.
/57/ HEREAFTER CALLED THE AUDIT DIVISION.
/58/ CF. U.S. GEOLOGICAL SURVEY, DEPARTMENT OF THE INTERIOR, ROLLA,
MISSOURI, A/SLMR NO. 460; FEDERAL DEPOSIT INSURANCE CORPORATION, A/SLMR
NO. 459; AND DEPARTMENT OF TRANSPORTATION, NATIONAL HIGHWAY TRAFFIC
SAFETY ADMINISTRATION, A/SLMR NO. 193.
/59/ IN ANY EVENT, I FIND THAT THE ALLEGATIONS CONTAINED IN THE
COMPLAINT THAT DEINLEIN PARTICIPATED IN SOLICITING SIGNATURES FOR
DECERTIFICATION IS TOTALLY UNSUPPORTED BY THE EVIDENCE. FURTHER, THE
ALLEGATIONS THAT DEINLEIN MET WITH PRO-DECERTIFICATION EMPLOYEES ON DUTY
TIME, PRESUMABLY FOR PRO-DECERTIFICATION REASONS IS ALSO UNSUPPORTED BY
THE EVIDENCE. NOT ONLY DO I FIND THAT COMPLAINANT HAS NOT PROVEN THE
CONFERENCE ROOM AND LOBBY AS ALLEGED, BUT THE TESTIMONY WITH REGARD TO
THE NATURE AND SUBSTANCE OF ANY DECERTIFICATION DISCUSSION BY DEINLEIN
IS INSUFFICIENT TO ESTABLISH THAT SUCH CONVERSATIONS WERE IN FURTHERANCE
OF THE DECERTIFICATION EFFORT. I AM UNWILLING TO ASSUME THAT EVERY
CONVERSATION HAD BY EMPLOYEES DURING THE PERIOD OF SUBSTANTIAL
LEAFLETING IN SUPPORT OF THE DECERTIFICATION DRIVE WAS OF SUCH A NATURE
AS TO CONSTITUTE ANTI-UNION ACTIVITY ON DUTY TIME.
HOWEVER, I DO FIND THAT ON JULY 25, 1973, DEINLEIN ENTERED THE LOG 1
PROJECT, WAIVED ABOUT A COPY OF A PRO-DECERTIFICATION LEAFLET AND LOUDLY
ANNOUNCED THAT IF AUDITORS COULD VOTE IN THE ELECTION, ALL THE AUDITORS
WOULD PROBABLY VOTE "YES". NEVERTHELESS, IN VIEW OF MY FINDING ABOVE AS
TO THE STATUS OF DEINLEIN, I MAKE NO FINDING WHETHER, UNDER THE
CIRCUMSTANCES HEREIN, SUCH A STATEMENT MADE BY AN APPROPRIATELY
RESPONSIBLE PARTY WOULD BE A VIOLATION OF THE ORDER.
/60/ MOREOVER, I WOULD NOT FIND THAT THE UNION HAS PROVEN BY A
PREPONDERANCE OF THE EVIDENCE THAT DEINLEIN'S CONVERSATIONS WITH REGARD
TO THE HOSPITALIZED UNION PRESIDENT'S FINANCIAL ARRANGEMENTS WITH THE
CREDIT UNION (AN ENTITY TOTALLY INDEPENDENT FROM THE VETERANS
ADMINISTRATION) VIOLATED THE ORDER, DEINLEIN'S USE OF A LOUDER THAN
NORMAL VOICE NOTWITHSTANDING. THE SUBJECT MATTER WAS APPROPRIATE FOR
DISCUSSION BY DEINLEIN WITH PERSONS WHO HAD A SIGNIFICANT RELATIONSHIP
WITH THE UNION PRESIDENT. FURTHER, IT WAS REASONABLE FOR DEINLEIN TO
ENGAGE THESE INDIVIDUALS IN A DISCUSSION IN AN EFFORT TO AVOID HAVING
THE HOSPITALIZED PRESIDENT'S CARS REPOSSESSED THROUGH DEFAULT ON
REPAYMENT OF A CREDIT UNION LOAN. WHILE DEINLEIN TESTIFIED THAT HE
NEVER DISCUSSED AN EMPLOYEE'S FINANCIAL AFFAIRS WITH OTHER EMPLOYEES, HE
ALSO TESTIFIED, WITHOUT CONTRADICTION, THAT OTHER CARS HAD BEEN
REPOSSESSED BY THE CREDIT UNION. MOREOVER, DEINLEIN FURTHER TESTIFIED
THAT HE NEVER HAD A PRIOR SITUATION ARISE WHERE, AS HERE, THE PERSON
HOLDING THE LOAN WAS IN A MENTAL HOSPITAL AT THE TIME OF THE DEFAULT AND
THE INDIVIDUALS WIFE WAS UNABLE TO BE REACHED.
AS TO THE LOUDNESS OF DEINLEIN'S VOICE DURING THESE DISCUSSIONS, SUCH
LOUDNESS IS INSUFFICIENT, STANDING ALONE, TO PROVE THAT IN THE
CIRCUMSTANCES HEREIN, DEINLEIN ATTEMPTED TO BROADCAST THE UNION
PRESIDENT'S PLIGHT AND DISCREDIT THE UNION ON THE CHANGE THAT SUCH
CONVERSATIONS, OF BRIEF DURATION, WOULD BE OVERHEARD BY OTHER UNIT
EMPLOYEES.
5 A/SLMR 522; P. 375; CASE NO. 72-4880; JUNE 23, 1975.
DEPARTMENT OF THE NAVY,
NAVY COMMISSARY COMPLEX OFFICE,
LONG BEACH, CALIFORNIA
A/SLMR NO. 522
THIS CASE INVOLVED A PETITION FOR CLARIFICATION OF UNIT FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2631, AFL-CIO (AFGE)
SEEKING A DETERMINATION THAT THE EMPLOYEES OF THE NAVY COMMISSARY
COMPLEX OFFICE, LONG BEACH, CALIFORNIA (COMPLEX OFFICE) BE INCLUDED IN
ITS EXCLUSIVELY RECOGNIZED UNIT OF NONSUPERVISORY EMPLOYEES OF THE LONG
BEACH NAVY COMMISSARY STORE, LONG BEACH, CALIFORNIA.
THE AFGE WAS GRANTED EXCLUSIVE RECOGNITION IN 1966 FOR A UNIT OF ALL
NONSUPERVISORY EMPLOYEES OF THE LONG BEACH NAVY COMMISSARY STORE. IN
1970 THE COMPLEX OFFICE WAS ESTABLISHED AT LONG BEACH TO PERFORM AT ONE
LOCATION CERTAIN ADMINISTRATIVE FUNCTIONS PREVIOUSLY PERFORMED BY THE
LONG BEACH NAVY COMMISSARY STORE AND THREE OTHER NAVY COMMISSARY STORES.
THE RECORD REVEALED THAT THE COMPLEX OFFICE, WHICH IS LOCATED IN A
DIFFERENT BUILDING SOME DISTANCE FROM THE LONG BEACH NAVY COMMISSARY
STORE, WAS INITIALLY STAFFED WITH EMPLOYEES TRANSFERRED FROM THE LONG
BEACH NAVY COMMISSARY STORE. HOWEVER, EMPLOYEES HIRED SUBSEQUENTLY WERE
RECRUITED FROM A NUMBER OF OTHER SOURCES.
THE ASSISTANT SECRETARY CONCLUDED THAT THE EMPLOYEES OF THE COMPLEX
OFFICE WERE NOT A PART OF THE EXCLUSIVELY RECOGNIZED UNIT OF EMPLOYEES
OF THE LONG BEACH NAVY COMMISSARY STORE. IN THIS REGARD, HE NOTED THAT
THE COMPLEX OFFICE AND THE LONG BEACH NAVY COMMISSARY STORE PERFORM
DIFFERENT FUNCTIONS; THE EMPLOYEES OF THE COMPLEX OFFICE PERFORM THE
SAME SERVICES FOR ALL FOUR STORES OF THE COMPLEX ON AN EQUAL BASIS; THE
EMPLOYEES OF THE COMPLEX OFFICE AND THE LONG BEACH NAVY COMMISSARY ARE
LOCATED IN DIFFERENT BUILDINGS AND HAVE DIFFERENT DUTIES AND
RESPONSIBILITIES; MOST OF THE FORMER EMPLOYEES OF THE LONG BEACH NAVY
COMMISSARY STORE WHO BECAME EMPLOYEES OF THE COMPLEX OFFICE PERFORM
DIFFERENT JOB FUNCTIONS FROM THOSE WHICH THEY PERFORMED PREVIOUSLY; AND
THERE WAS NO EVIDENCE THAT THE EXCLUSIVE REPRESENTATIVE OF THE LONG
BEACH NAVY COMMISSARY STORE HAD REPRESENTED, OR HAD SOUGHT TO REPRESENT
ANY EMPLOYEE OF THE COMPLEX OFFICE IN A GRIEVANCE OR APPEAL ACTION.
ACCORDINGLY, HE ORDERED THAT THE PETITION BE DISMISSED.
DEPARTMENT OF THE NAVY,
NAVY COMMISSARY COMPLEX OFFICE,
LONG BEACH, CALIFORNIA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2631, AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER LINDA WITTLIN.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING A BRIEF FILED BY THE
ACTIVITY, THE ASSISTANT SECRETARY FINDS:
THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
2631, AFL-CIO, HEREIN CALLED AFGE, FILED A PETITION FOR CLARIFICATION OF
UNIT (CU) SEEKING TO CLARIFY ITS CURRENT EXCLUSIVELY RECOGNIZED UNIT,
CONSISTING OF ALL NONSUPERVISORY EMPLOYEES OF THE LONG BEACH NAVY
COMMISSARY STORE, TO INCLUDE THE EMPLOYEES OF THE NAVY COMMISSARY
COMPLEX OFFICE, LONG BEACH, CALIFORNIA (COMPLEX OFFICE). THE ACTIVITY
TOOK THE POSITION THAT THE UNIT CURRENTLY REPRESENTED BY THE AFGE IS
LIMITED TO THE EMPLOYEES OF THE LONG BEACH NAVY COMMISSARY STORE AND
DOES NOT ENCOMPASS THE EMPLOYEES OF THE COMPLEX OFFICE.
THE RECORD REVEALS THAT PRIOR TO 1970 THERE WERE THREE NAVY
COMMISSARY STORES AND ONE BRANCH COMMISSARY STORE OPERATING ON AN
INDEPENDENT, AUTONOMOUS BASIS IN THE NORTHERN HALF OF THE ELEVENTH NAVAL
DISTRICT. THUS, IN ADDITION TO THE LONG BEACH NAVY COMMISSARY STORE,
THERE WERE COMMISSARY STORES LOCATED AT CHINA LAKE AND PORT HUENEME AND
A STORE AT POINT MUGU WHICH WAS OPERATED AS A BRANCH OF THE PORT HUENEME
NAVY COMMISSARY STORE. THESE STORES PERFORMED THE FUNCTION OF RETAILING
FOODSTUFFS TO ACTIVE DUTY AND RETIRED MILITARY PERSONNEL AND THEIR
DEPENDENTS.
THE AFGE WAS GRANTED EXCLUSIVE RECOGNITION IN 1966 FOR A UNIT
CONSISTING OF ALL NONSUPERVISORY EMPLOYEES OF THE NAVY COMMISSARY STORE
AT LONG BEACH. FURTHER, THE RECORD REVEALS THAT THE EMPLOYEES OF THE
NAVY COMMISSARY STORE AT PORT HUENEME ARE REPRESENTED BY THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-29, AND THAT THE
EMPLOYEES OF THE POINT MUGU AND CHINA LAKE STORES ARE NOT REPRESENTED
EXCLUSIVELY BY ANY LABOR ORGANIZATION.
ON APRIL 1, 1970, THE COMPLEX OFFICE WAS ESTABLISHED AT LONG BEACH TO
CONSOLIDATE AT ONE LOCATION CERTAIN ADMINISTRATIVE, INVENTORY, DATA
PROCESSING, STOCK CONTROL, PRICING, PROCUREMENT AND ACCOUNTING FUNCTIONS
WHICH HAD THERETOFORE BEEN PERFORMED BY THE INDIVIDUAL STORES. THE
RECORD REVEALS THAT THE COMPLEX OFFICE PROVIDES THESE SERVICES ON AN
EQUAL BASIS TO EACH OF THE FOUR STORES UNDER ITS JURISDICTION. IN THIS
REGARD, THE EVIDENCE ESTABLISHES THAT THE PRIMARY FUNCTIONS PERFORMED BY
COMPLEX OFFICE EMPLOYEES ARE DISSIMILAR TO THOSE PERFORMED CURRENTLY BY
ANY EMPLOYEES OF THE LONG BEACH NAVY COMMISSARY STORE AS WELL AS THOSE
PERFORMED BY EMPLOYEES OF THE OTHER THREE STORES.
THE COMPLEX OFFICE, WHICH IS LOCATED IN AN OFFICE BUILDING SOME
DISTANCE FROM THE LONG BEACH NAVY COMMISSARY STORE, INITIALLY WAS
STAFFED WITH SIX PERSONS TRANSFERRED FROM THE LONG BEACH NAVY COMMISSARY
STORE. HOWEVER, EMPLOYEES HIRED SUBSEQUENT TO THE ESTABLISHMENT OF THE
COMPLEX OFFICE WERE RECRUITED FROM A NUMBER OF OTHER SOURCES. /1/
MOREOVER, THE RECORD REVEALS THAT NOT ONLY DO THE EMPLOYEES AT THE
COMPLEX OFFICE PROVIDE SERVICES WHICH ARE NOT NOW PERFORMED AT THE FOUR
STORES, BUT THAT, IN ALMOST ALL INSTANCES, THE FORMER EMPLOYEES OF THE
LONG BEACH NAVY COMMISSARY STORE, WHO BECAME EMPLOYEES OF THE COMPLEX
OFFICE, PERFORM DIFFERENT DUTIES FROM THOSE WHICH THEY PERFORMED PRIOR
TO THEIR TRANSFER.
ALTHOUGH THE AFGE CONTENDS THAT IT HISTORICALLY AND TRADITIONALLY HAS
REPRESENTED THE EMPLOYEES OF THE COMPLEX OFFICE, AS WELL AS THOSE OF THE
LONG BEACH NAVY COMMISSARY STORE, THE RECORD FAILS TO ESTABLISH ANY
INSTANCE WHERE THE AFGE HAS REPRESENTED, OR HAS SOUGHT TO REPRESENT, ANY
COMPLEX OFFICE EMPLOYEE IN A GRIEVANCE OR APPEAL ACTION. MOREOVER, THE
UNIT DESCRIPTION CONTAINED IN THE NEGOTIATED AGREEMENTS BETWEEN THE
PARTIES WHICH WERE ENTERED INTO AFTER THE ESTABLISHMENT OF THE COMPLEX
OFFICE MAKES NO REFERENCE TO EMPLOYEES OF THE COMPLEX OFFICE. NOR DO
SUCH NEGOTIATED AGREEMENTS CONTAIN ANY SPECIAL REFERENCE OR PROVISION
WITH RESPECT TO COMPLEX OFFICE EMPLOYEES.
UNDER THESE CIRCUMSTANCES, I FIND THAT THE EMPLOYEES OF THE COMPLEX
OFFICE ARE NOT PART OF THE EXCLUSIVELY RECOGNIZED UNIT OF EMPLOYEES OF
THE LONG BEACH NAVY COMMISSARY STORE. THUS, AS NOTED ABOVE, THE LONG
BEACH NAVY COMMISSARY STORE AND THE COMPLEX OFFICE PERFORM DIFFERENT
FUNCTIONS; THE EMPLOYEES OF THE COMPLEX OFFICE PERFORM THE SAME
SERVICES FOR ALL FOUR STORES OF THE COMPLEX ON AN EQUAL BASIS; THE
EMPLOYEES OF THE COMPLEX OFFICE AND LONG BEACH NAVY COMMISSARY STORE ARE
LOCATED IN DIFFERENT BUILDINGS AND HAVE DIFFERENT DUTIES AND
RESPONSIBILITIES; MOST OF THE FORMER EMPLOYEES OF THE LONG BEACH NAVY
COMMISSARY STORE WHO BECAME EMPLOYEES OF THE COMPLEX OFFICE PERFORM
DIFFERENT JOB FUNCTIONS FROM THOSE WHICH THEY PERFORMED PREVIOUSLY; AND
THERE IS NO EVIDENCE THAT THE EXCLUSIVE REPRESENTATIVE OF THE LONG BEACH
NAVY COMMISSARY STORE HAS REPRESENTED, OR HAS SOUGHT TO REPRESENT, ANY
EMPLOYEE OF THE COMPLEX OFFICE IN A GRIEVANCE OR APPEAL ACTION.
ACCORDINGLY, I SHALL ORDER THAT THE PETITION HEREIN BE DISMISSED.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 72-4880 BE, AND IT
HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 23, 1975
/1/ ALTHOUGH CERTAIN OF THE EMPLOYEES AT THE COMPLEX OFFICE CONTINUED
TO HAVE UNION DUES DEDUCTED AFTER THEIR TRANSFER FROM THE LONG BEACH
NAVY COMMISSARY STORE, THE RECORD INDICATES THAT THIS OCCURRED WITHOUT
THE KNOWLEDGE OR ACQUIESCENCE OF THE COMMANDING OFFICER OF THE COMPLEX
OFFICE AND RESULTED FROM THE FAILURE TO CANCEL THE DUES DEDUCTIONS BY
THE REGIONAL FINANCE CENTER, WHICH HANDLES THE PAYROLL FOR THE STORES
INVOLVED.
5 A/SLMR 521; P. 372; CASE NO. 22-5782(RO); JUNE 23, 1975.
U.S. ARMY CLUB MANAGEMENT DIRECTORATE, TAGCEN,
FORT MEADE, MARYLAND
A/SLMR NO. 521
THIS CASE AROSE WHEN THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1622 (AFGE), FILED A PETITION SEEKING AN ELECTION IN A
UNIT OF NONAPPROPRIATED FUND EMPLOYEES OF THE ACTIVITY. THE PARTIES
WERE IN ESSENTIAL AGREEMENT AS TO THE SCOPE AND COMPOSITION OF THE
APPROPRIATE UNIT; HOWEVER, THE ISSUE WAS RAISED WHETHER OR NOT A NUMBER
OF EMPLOYEES SOUGHT TO BE EXCLUDED WERE MANAGEMENT OFFICIALS WITHIN THE
MEANING OF THE ORDER.
THE ASSISTANT SECRETARY FOUND THAT THE UNIT SOUGHT BY THE AFGE WAS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION AND DIRECTED AN
ELECTION IN THAT UNIT. HE ALSO MADE A NUMBER OF ELIGIBILITY FINDINGS.
THUS, BASED ON THE PARTIES' STIPULATIONS AND RECORD EVIDENCE, THE
ASSISTANT SECRETARY CONCLUDED THAT A CLUB MANAGEMENT SPECIALIST SHOULD
BE EXCLUDED FROM THE UNIT AS A SUPERVISOR AND THAT A PROCUREMENT ANALYST
WAS NOT A MANAGEMENT OFFICIAL AND, THEREFORE, SHOULD BE INCLUDED IN THE
UNIT. NOTING THE DEFINITION OF MANAGEMENT OFFICIAL SET FORTH IN
DEPARTMENT OF THE AIR FORCE, ARNOLD ENGINEERING DEVELOPMENT CENTER, AIR
FORCE SYSTEMS COMMAND, ARNOLD AIR FORCE STATION, TENNESSEE, A/SLMR NO.
135, HE FOUND ALSO THAT TWO BUSINESS MANAGEMENT ANALYSTS, TWO LOAN
SPECIALISTS AND EIGHT CLUB MANAGEMENT SPECIALISTS, ALLEGED TO BE
MANAGEMENT OFFICIALS, WERE NOT MANAGEMENT OFFICIALS WITHIN THE MEANING
OF THE ORDER. BASED ON A LACK OF RECORD EVIDENCE, HE MADE NO
ELIGIBILITY FINDING WITH RESPECT TO ONE CLUB MANAGEMENT SPECIALIST. THE
ASSISTANT SECRETARY FURTHER FOUND THAT TWO CLUB MANAGEMENT SPECIALISTS
WERE NEITHER MANAGEMENT OFFICIALS NOR SUPERVISORS AND THAT ONE OF THE
ACTIVITY'S CLUB MANAGEMENT SPECIALISTS WAS NEITHER A MANAGEMENT OFFICIAL
NOR AN EMPLOYEE ENGAGED IN FEDERAL PERSONNEL WORK WITHIN THE
CONTEMPLATION OF SECTION 10(B)(2) OF THE ORDER.
U.S. ARMY CLUB MANAGEMENT DIRECTORATE, TAGCEN,
FORT MEADE, MARYLAND /1/
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1622
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER EARL T. CLARK.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE /2/ , THE ASSISTANT SECRETARY
FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1622, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF
ALL FULL-TIME AND PART-TIME NONAPPROPRIATED FUND EMPLOYEES OF THE U.S.
ARMY CLUB MANAGEMENT DIRECTORATE, TAGCEN, LOCATED AT FORT MEADE,
MARYLAND, EXCLUDING MANAGEMENT OFFICIALS, PROFESSIONAL EMPLOYEES,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY. SUPERVISORS AND GUARDS. THE PARTIES GENERALLY WERE
IN AGREEMENT AS TO THE SCOPE AND COMPOSITION OF THE CLAIMED UNIT.
HOWEVER, THE ACTING ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT
SERVICES ISSUED A NOTICE OF HEARING FOR THE PURPOSE OF ELICITING
EVIDENCE ON THE STATUS OF CERTAIN EMPLOYEES WHO THE PARTIES HAD AGREED
TO EXCLUDE FROM THE CLAIMED UNIT ON THE BASIS THAT THEY ARE MANAGEMENT
OFFICIALS. /3/
THE RECORD REVEALS THAT THE MISSION OF THE ACTIVITY IS TO EXERCISE
CENTRAL DIRECTION AND TECHNICAL SUPERVISION FOR ARMY OFFICERS CLUBS,
NON-COMMISSIONED OFFICERS CLUBS AND ENLISTED MENS' CLUBS WORLDWIDE. THE
CLAIMED UNIT IS LIMITED TO THOSE EMPLOYEES OF THE ACTIVITY LOCATED AT
FORT MEADE. WHILE THE ACTIVITY ALSO HAS UNDER ITS JURISDICTION TWO
REGIONAL OFFICES IN HAWAII AND GERMANY AND TWO FIELD OFFICES IN TEXAS
AND CALIFORNIA, THE RECORD REVEALS THAT THE EMPLOYEES OF THE REGIONAL
OFFICES AND FIELD OFFICES ARE SERVICED BY DIFFERENT PERSONNEL OFFICES
THAN THE EMPLOYEES IN THE CLAIMED UNIT. /4/ UNDER THE CIRCUMSTANCES, I
CONCLUDE THAT THE EVIDENCE IS INSUFFICIENT TO ESTABLISH THAT THE CLAIMED
EMPLOYEES AT FORT MEADE AND THOSE OF THE REGIONAL AND FIELD OFFICES
SHARE A COMMUNITY OF INTEREST WHICH COULD WARRANT THE LATTERS' INCLUSION
IN THE PETITIONED FOR UNIT. ACCORDINGLY, I FIND THAT THE PETITIONED FOR
UNIT OF EMPLOYEES LOCATED AT FORT MEADE IS APPROPRIATE FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION, AS SUCH EMPLOYEES SHARE A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST AND SUCH A UNIT WILL PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
ELIGIBILITY ISSUES /5/
THE RECORD DISCLOSES THAT ELIGIBILITY ISSUES WERE RAISED WITH RESPECT
TO THE FOLLOWING EMPLOYEE CLASSIFICATIONS:
BUSINESS MANAGEMENT ANALYSTS
IT IS CONTENDED THAT TWO BUSINESS MANAGEMENT ANALYSTS- JOHN J. ONTKO
AND LOUIS M. FRIEDMAN, ARE MANAGEMENT OFFICIALS. THE RECORD REVEALS
THAT ONTKO SERVES AS A MEMBER OF A TEAM OF SPECIALISTS WHICH VISITS THE
VARIOUS ARMY CLUB INSTALLATIONS AND ANALYZES THEIR OPERATIONS IN ORDER
TO SUGGEST CHANGES WHICH COULD LEAD TO IMPROVED OPERATING EFFICIENCY.
IN THE PERFORMANCE OF HIS DUTIES, ONTKO SERVES AS AN EXPERT OR
PROFESSIONAL RENDERING RESOURCE INFORMATION TO HIS SUPERVISORS RATHER
THAN AS AN INDIVIDUAL WHO ACTIVELY PARTICIPATES IN THE ULTIMATE
DETERMINATION AS TO WHAT A PARTICULAR ACTIVITY POLICY WILL BE. /6/
ACCORDINGLY, I FIND THAT ONTKO IS NOT A MANAGEMENT OFFICIAL WITHIN THE
MEANING OF THE ORDER AND SHOULD BE INCLUDED IN THE UNIT FOUND
APPROPRIATE.
BUSINESS MANAGEMENT ANALYST LOUIS M. FRIEDMAN WORKS IN STAFF CAPACITY
UNDER THE SUPERVISION OF A BRANCH CHIEF AND IS INVOLVED IN PREPARING
REGULATIONS AND DIRECTIVES CONCERNING MANAGEMENT OF THE ACTIVITY. THE
EVIDENCE IS INSUFFICIENT TO ESTABLISH THAT FRIEDMAN'S PARTICIPATION IN
POLICY DETERMINATION EXTENDS BEYOND THAT OF AN EXPERT OR PROFESSIONAL
PROVIDING RESOURCE INFORMATION AND RECOMMENDATIONS. THEREFORE, I FIND
THAT FRIEDMAN IS NOT A MANAGEMENT OFFICIAL WITHIN THE MEANING OF THE
ORDER AND SHOULD BE INCLUDED IN THE UNIT FOUND APPROPRIATE.
LOAN SPECIALISTS
IT IS ASSERTED THAT TWO LOAN SPECIALISTS, MARY E. RUSSO AND WILSON R.
RUSSELL, ARE MANAGEMENT OFFICIALS. THE RECORD REVEALS THAT BOTH LOAN
SPECIALISTS PERFORM SIMILAR DUTIES, WHICH INVOLVE EVALUATING
APPLICATIONS FROM ARMY CLUBS FOR LOANS AND MONITORING LOAN REPAYMENTS.
THE EVIDENCE INDICATES THAT THE JOB FUNCTIONS OF THESE EMPLOYEES ARE
PERFORMED WITHIN ESTABLISHED GUIDELINES AND DO NOT INVOLVE THE
FORMULATION OF POLICY. ACCORDINGLY, I FIND THAT RUSSO AND RUSSELL ARE
NOT MANAGEMENT OFFICIALS WITHIN THE MEANING OF THE ORDER AND SHOULD BE
INCLUDED IN THE UNIT FOUND APPROPRIATE.
CLUB MANAGEMENT SPECIALISTS
IT IS CONTENDED THAT TWELVE EMPLOYEES CLASSIFIED AS CLUB MANAGEMENT
SPECIALISTS, WHO WORK IN VARIOUS CAPACITIES IN SEVERAL BRANCHES OF THE
ACTIVITY, ARE MANAGEMENT OFFICIALS AND SHOULD BE EXCLUDED FROM THE UNIT.
RICHARD D. BELGRANO, CLAUDE L. HATECKE, FREDERICK J. PAZZANO AND
BENEDICT A. YANKOLONIS ARE CLUB MANAGEMENT SPECIALISTS ASSIGNED TO THE
ACTIVITY'S FRANCHISE OPERATIONS BRANCH. /7/ THE RECORD INDICATES THAT
BELGRANO IS INVOLVED IN PERFORMING MARKETING SURVEYS AND PROVIDING
MARKETING INFORMATION; HATECKE COORDINATES THE DESIGN OF CLUB
FACILITIES; AND YANKOLONIS PERFORMS A LIAISON FUNCTION BETWEEN THE
ACTIVITY AND THE CLUBS AND DISSEMINATES POLICIES AND INSTRUCTIONS
REGARDING THE MANAGEMENT OF THE CLUBS. THE EVIDENCE DOES NOT ESTABLISH
THAT THE JOB FUNCTIONS PERFORMED BY THESE THREE EMPLOYEES ARE OTHER THAN
THOSE OF EXPERTS PREPARING OR IMPARTING RESOURCE INFORMATION TO ACTIVITY
MANAGEMENT. ACCORDINGLY, I FIND THAT BELGRANO, HATECKE, AND YANKOLONIS
ARE NOT MANAGEMENT OFFICIALS WITHIN THE MEANING OF THE ORDER AND SHOULD
BE INCLUDED IN THE UNIT FOUND APPROPRIATE.
STANLEY P. DAY, JOHN O. LAMPHIER, JR., AND AMY M. WU ARE CLUB
MANAGEMENT SPECIALISTS EMPLOYED IN THE ACTIVITY'S FRANCHISE ANALYSIS
BRANCH. DAY AND LAMPHIER REVIEW AND ANALYZE THE FINANCIAL STATEMENTS
AND AUDIT REPORTS OF ARMY CLUB OPERATIONS AND WU COMPILES STATISTICAL
FINANCIAL DATA. THE EVIDENCE ESTABLISHES THAT THEIR DUTIES INVOLVE THE
COMPILATION OF RESOURCE INFORMATION RATHER THAN THE PARTICIPATION IN
POLICY FORMULATION. ACCORDINGLY, I FIND THAT DAY, LAMPHIER AND WU ARE
NOT MANAGEMENT OFFICIALS WITHIN THE MEANING OF THE ORDER AND SHOULD BE
INCLUDED IN THE UNIT FOUND APPROPRIATE. /8/
PETER D. LUCEY AND ROBERT M. MONETTA ARE CLUB MANAGEMENT SPECIALISTS
SPECIALIZING IN THE AREA OF FOOD AND BEVERAGE OPERATIONS. IN THE
PERFORMANCE OF THEIR DUTIES, LUCEY AND MONETTA VISIT THE ARMY CLUBS AND
MAKE RECOMMENDATIONS WITH RESPECT TO IMPROVING THE EFFICIENCY OF FOOD
AND BEVERAGE OPERATIONS. EDWARD C. BURGNON AND WILLIAM R. GREGG ARE
CLUB MANAGEMENT SPECIALISTS PERFORMING DUTIES INVOLVING THE
ESTABLISHMENT AND OPERATION OF TRAINING PROGRAMS FOR ARMY CLUB
MANAGEMENT AND PERSONNEL. THE EVIDENCE ESTABLISHES THAT LUCEY, MONETTA,
BURGNON AND GREGG DO NOT PARTICIPATE IN THE DETERMINATION OF WHAT
OPERATING POLICIES WILL BE BUT, RATHER, ACT IN THE CAPACITY OF EXPERTS
CONVEYING INTERPRETATIONS OF POLICIES AND OPERATING PROCEDURES TO THE
MANAGEMENT AND PERSONNEL OF THE VARIOUS ARMY CLUBS. UNDER THESE
CIRCUMSTANCES, I FIND THAT LUCEY, MONETTA, BURGNON AND GREGG ARE NOT
MANAGEMENT OFFICIALS WITHIN THE MEANING OF THE ORDER AND SHOULD BE
INCLUDED IN THE UNIT FOUND APPROPRIATE.
IT ALSO IS MAINTAINED THAT KENNETH P. FISHER, A CLUB MANAGEMENT
SPECIALIST INVOLVED IN PERSONNEL WORK, IS A MANAGEMENT OFFICIAL. THE
RECORD DISCLOSES FURTHER THAT FISHER DOES NOT, AT PRESENT, PERFORM HIS
ABOVE NOTED JOB FUNCTIONS WITH RESPECT TO CIVILIAN EMPLOYEES OR
NONMILITARY JOB APPLICANTS. UNDER THE CIRCUMSTANCES, I FIND THAT FISHER
IS NOT A MANAGEMENT OFFICIAL WITHIN THE MEANING OF THE ORDER, INASMUCH
AS HE DOES NOT PARTICIPATE IN THE DETERMINATION OF POLICY BUT, RATHER,
RENDERS RECOMMENDATIONS BASED ON EXISTING POLICY BUT, RATHER, RENDERS
RECOMMENDATIONS BASED ON EXISTING POLICIES AND CRITERIA. MOREOVER, I
FIND THAT FISHER IS NOT AN EMPLOYEE ENGAGED IN FEDERAL PERSONNEL WORK
WITHIN THE CONTEMPLATION OF SECTION 10(B)(2) OF THE ORDER IN VIEW OF THE
FACT THAT SUCH PERSONNEL WORK AS HE PERFORMS IS IN CONNECTION WITH
INDIVIDUALS WHO ARE IN A MILITARY CAPACITY AND COULD NOT BE INCLUDED
WITHIN THE CLAIMED UNIT. /9/ ACCORDINGLY, I FIND THAT FISHER IS
ELIGIBLE FOR INCLUSION IN THE UNIT FOUND APPROPRIATE.
BASED ON THE FOREGOING, I FIND THAT THE FOLLOWING EMPLOYEES
CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
UNDER EXECUTIVE ORDER 11491, AS AMENDED:
ALL NONAPPROPRIATED FUND EMPLOYEES OF THE U.S. ARMY CLUB MANAGEMENT
DIRECTORATE, TAGCEN,
LOCATED AT FORT MEADE, MARYLAND, EXCLUDING PROFESSIONAL EMPLOYEES,
EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, GUARDS,
AND SUPERVISORS AS DEFINED IN THE ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED, AS EARLY AS
POSSIBLE, BUT NOT LATER THAN 60 DAYS FROM THE DATE BELOW. THE
APPROPRIATE AREA DIRECTOR SHALL SUPERVISE THE ELECTION, SUBJECT TO THE
ASSISTANT SECRETARY'S REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE
UNIT WHO WERE EMPLOYED DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING
THE DATE BELOW, INCLUDING EMPLOYEES WHO DID NOT WORK DURING THE PERIOD
BECAUSE THEY WERE OUT ILL, OR ON VACATION OR ON FURLOUGH, INCLUDING
THOSE IN THE MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS.
INELIGIBLE TO VOTE ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE
SINCE THE DESIGNATED PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR
REINSTATED BEFORE THE ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER
OR NOT THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1622.
DATE: WASHINGTON, D.C.
JUNE 23, 1975
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE ACTIVITY FILED AN UNTIMELY BRIEF WHICH WAS NOT CONSIDERED.
/3/ AN INDICATED ABOVE, THE UNIT SOUGHT BY THE AFGE WOULD EXCLUDE
PROFESSIONAL EMPLOYEES. IN VIEW OF THE FACT THAT NO EVIDENCE WAS
ADDUCED AT THE HEARING WITH RESPECT TO THE PROFESSIONAL STATUS OF ANY
EMPLOYEES SOUGHT TO BE EXCLUDED, I SHALL MAKE NO FINDINGS IN THIS
REGARD.
/4/ ALTHOUGH THE PARTIES WERE IN AGREEMENT AS TO THE APPROPRIATENESS
OF THE CLAIMED UNIT OF EMPLOYEES LOCATED AT FORT MEADE AS WELL AS THE
CATEGORIES OF EMPLOYEES TO BE INCLUDED IN, AND EXCLUDED FROM, SUCH UNIT.
EVIDENCE ADDUCED AT THE HEARING IN THIS MATTER INDICATED THAT THE
ACTIVITY HAD THE ABOVE NOTED REGIONAL AND FIELD OFFICES. UNDER THESE
CIRCUMSTANCES, THE HEARING OFFICER PROPERLY SOUGHT TO ELICIT EVIDENCE
CONCERNING THESE OFFICES.
/5/ AT THE HEARING, THE PARTIES STIPULATED THAT ONE CLUB MANAGEMENT
SPECIALIST POSITION OCCUPIED BY FREDERICK S. NEWMAN, JR. WAS SUPERVISORY
IN NATURE, AND THAT ANOTHER POSITION, THAT OF PROCUREMENT ANALYST,
OCCUPIED BY HELEN C. THOMAS, WAS NOT A MANAGERIAL POSITION. AS THERE
WAS NO CONTRARY EVIDENCE IN THE RECORD IN THIS REGARD, I FIND THAT THE
CLUB MANAGEMENT SPECIALIST POSITION OCCUPIED BY NEWMAN SHOULD BE
EXCLUDED FROM THE UNIT FOUND APPROPRIATE AND THE PROCUREMENT ANALYST
POSITION OCCUPIED BY THOMAS SHOULD BE INCLUDED IN THE UNIT.
/6/ SEE DEPARTMENT OF THE AIR FORCE, ARNOLD ENGINEERING DEVELOPMENT
CENTER, AIR FORCE SYSTEMS COMMAND, ARNOLD AIR FORCE STATION, TENNESSEE,
A/SLMR NO. 135.
/7/ THE RECORD DOES NOT INDICATE PAZZANO'S DUTIES AND
RESPONSIBILITIES. ACCORDINGLY, I SHALL MAKE NO FINDING WITH RESPECT TO
WHETHER HE IS A MANAGEMENT OFFICIAL WITHIN THE MEANING OF THE ORDER.
/8/ EVIDENCE ADDUCED AT THE HEARING INDICATED THAT DAY AND LAMPHIER
EACH DIRECT THE ACTIVITIES OF TWO CLERKS. HOWEVER, I FIND THAT DAY AND
LAMPHIER ARE NOT SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE
ORDER INASMUCH AS THE RECORD REVEALS THAT ANY DIRECTION BY DAY AND
LAMPHIER WITH RESPECT TO THE CLERKS IS OF A ROUTINE NATURE, IS DICTATED
BY THE NATURE OF THE WORK INVOLVED, AND DOES NOT REQUIRE THE USE OF
INDEPENDENT JUDGMENT.
/9/ CF. ST. LOUIS REGION, UNITED STATES CIVIL SERVICE COMMISSION, ST.
LOUIS, MISSOURI, A/SLMR NO. 162.
5 A/SLMR 520; P. 370; CASE NO. 64-2561(DR); MAY 30, 1975.
U.S. NAVAL AIR STATION
NEW ORLEANS,
BELLE CHASSE, LOUISIANA
A/SLMR NO. 520
THE SUBJECT CASE AROSE AS THE RESULT OF A DECERTIFICATION PETITION
FILED BY AN INDIVIDUAL SEEKING TO DECERTIFY LOCAL R5-126, NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE) AS THE EXCLUSIVE
REPRESENTATIVE OF A UNIT OF GENERAL SCHEDULE FIREFIGHTERS AT THE
ACTIVITY. THE ACTIVITY TAKES THE POSITION THAT A THREE YEAR AGREEMENT
NEGOTIATED BETWEEN IT AND THE NAGE BARRED THE INSTANT DECERTIFICATION
PETITION. THE PETITIONER AND THE INTERVENOR, INTERNATIONAL ASSOCIATION
OF FIRE FIGHTERS, AFL-CIO, LOCAL F-189 (IAFF) CLAIM THAT THE PETITION
SHOULD BE CONSIDERED AS TIMELY FILED BECAUSE THE NAGE LOCAL IS DEFUNCT
AND, THEREFORE, UNDER SECTION 202.3(C)(3) OF THE REGULATIONS OF THE
ASSISTANT SECRETARY, UNUSUAL CIRCUMSTANCES EXIST WHICH SUBSTANTIALLY
AFFECT THE UNIT OR THE MAJORITY REPRESENTATION.
UNDER ALL OF THE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THE
NAGE LOCAL TO BE DEFUNCT AS THE EVIDENCE ESTABLISHED THAT IT WAS
UNWILLING OR UNABLE TO REPRESENT THE EMPLOYEES IN THE UNIT INVOLVED. IN
THIS REGARD, THE ASSISTANT SECRETARY NOTED PARTICULARLY THAT NAGE LOCAL
R5-126 HAD NO DUES PAYING MEMBERS; THAT IT HAD NO OFFICES; THAT THE
LOCAL FUNDS HAD BEEN DISBURSED AMONG THE MEMBERSHIP; AND THAT NEITHER
THE NAGE LOCAL NOR THE NAGE NATIONAL OFFICE, EVEN THOUGH NOTIFIED,
SOUGHT TO INTERVENE IN THE PROCEEDING OR TOOK ANY AFFIRMATIVE ACTION TO
REPRESENT THE EMPLOYEES IN THE UNIT.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE DECERTIFICATION
PETITION BE DISMISSED. HE NOTED, IN THIS REGARD, THAT IN VIEW OF HIS
FINDING OF DEFUNCTNESS, A DECERTIFICATION ELECTION WAS RENDERED
UNNECESSARY AS THERE IS NOT NOW ANY EXCLUSIVELY RECOGNIZED LABOR
ORGANIZATION REPRESENTING THE UNIT EMPLOYEES.
U.S. NAVAL AIR STATION
NEW ORLEANS,
BELLE CHASSE, LOUISIANA
AND
ROBERT E. HIRSTIUS
AND
INTERNATIONAL ASSOCIATION OF
FIRE FIGHTERS, AFL-CIO, LOCAL F-189
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER LOUIS O. EAVES.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
THE PETITIONER, ROBERT E. HIRSTIUS, SEEKS DECERTIFICATION OF LOCAL
R5-126, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, HEREIN CALLED
NAGE, THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF GENERAL SCHEDULE FIRE
FIGHTERS EMPLOYED BY THE ACTIVITY. THE ACTIVITY TAKES THE POSITION THAT
A THREE YEAR AGREEMENT NEGOTIATED BETWEEN IT AND THE NAGE, WHICH WAS
EFFECTIVE APRIL 17, 1973, BARS THE INSTANT DECERTIFICATION PETITION. ON
THE OTHER HAND, THE INTERVENOR, THE INTERNATIONAL ASSOCIATION OF FIRE
FIGHTERS, AFL-CIO, LOCAL F-189, HEREIN CALLED IAFF, CONTENDS THAT THE
INSTANT PETITION SHOULD BE CONSIDERED AS HAVING BEEN TIMELY FILED IN
THAT THE NAGE LOCAL INVOLVED IS DEFUNCT AND, THEREFORE, UNDER SECTION
202.3(C)(3) OF THE ASSISTANT SECRETARY'S REGULATIONS, UNUSUAL
CIRCUMSTANCES EXIST WHICH SUBSTANTIALLY AFFECT THE UNIT OR THE MAJORITY
REPRESENTATION. NEITHER THE NAGE LOCAL INVOLVED NOR ITS NATIONAL OFFICE
SOUGHT TO INTERVENE IN THIS PROCEEDING. FURTHER, NEITHER SOUGHT TO
APPEAR AT THE HEARING ALTHOUGH THEY WERE SERVED WITH A COPY OF THE
NOTICE OF HEARING BY THE ASSISTANT REGIONAL DIRECTOR.
THE RECORD REVEALS THAT NAGE LOCAL R5-126 WAS CERTIFIED AS THE
EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES IN THE UNIT ON NOVEMBER 10,
1970. /1/ THEREAFTER, THE PARTIES NEGOTIATED A TWO YEAR AGREEMENT,
DATED FEBRUARY 24, 1971, AND, UPON ITS EXPIRATION, NEGOTIATED A THREE
YEAR AGREEMENT DATED APRIL 17, 1973.
THE EVIDENCE ESTABLISHES THAT THE PETITIONER WAS THE PRESIDENT OF
NAGE LOCAL R5-126 FROM ITS INCEPTION UNTIL HIS FORMAL RESIGNATION
EFFECTIVE SEPTEMBER 10, 1974. IN THIS CONNECTION, THE RECORD INDICATES
THAT THERE WERE TEN DUES PAYING MEMBERS OF THE NAGE IN THE UNIT THROUGH
THE END OF AUGUST 1974; /2/ THAT THESE MEMBERS HAD EXPRESSED
DISSATISFACTION WITH THE NAGE NATIONAL OFFICE; THAT ALL OF THE
REMAINING DUES PAYING MEMBERS REVOKED THEIR DUES AUTHORIZATIONS IN
AUGUST 1974: /3/ AND THAT IN AUGUST 1974 THE REMAINING UNION FUNDS WERE
DISBURSED AMONG THE RESIGNING MEMBERS.
THE RECORD REFLECTS THAT, WHILE HISTORICALLY THE PETITIONER HIMSELF
CONDUCTED MOST OF THE UNION BUSINESS WITH RESPECT TO THE UNIT INVOLVED
HEREIN, THE NAGE NATIONAL OFFICE ASSISTED HIM IN NEGOTIATING THE FIRST
AGREEMENT AND GAVE SOME ASSISTANCE REGARDING TWO GRIEVANCES. HOWEVER,
THERE WAS NO EVIDENCE THAT THE NAGE NATIONAL OFFICE HAS TAKEN ANY
AFFIRMATIVE ACTION TO ADMINISTER THE CURRENT NEGOTIATED AGREEMENT OR TO
REPRESENT ANY OF THE UNIT EMPLOYEES SINCE RECEIVING NOTIFICATION OF THE
INSTANT DECERTIFICATION PETITION AND THE PETITIONER'S RESIGNATION.
UNDER ALL OF THE ABOVE CIRCUMSTANCES, I FIND THAT NAGE LOCAL R5-126
IS DEFUNCT IN THAT THE EVIDENCE ESTABLISHES THAT IT IS UNWILLING OR
UNABLE TO REPRESENT THE EMPLOYEES IN THE UNIT INVOLVED. /4/ IN THIS
REGARD, IT WAS NOTED PARTICULARLY THAT NAGE LOCAL R5-126 HAS NO DUES
PAYING MEMBERS; THAT IT HAS NO OFFICERS; THAT THE LOCAL FUNDS HAVE
BEEN DISBURSED AMONG THE MEMBERSHIP; AND THAT THE NAGE DID NOT SEEK TO
INTERVENE IN THIS PROCEEDING. MOREOVER, THE NATIONAL OFFICE OF THE
NAGE, ALTHOUGH NOTIFIED OF THE DECERTIFICATION PETITION AND THE
PETITIONER'S RESIGNATION, HAS TAKEN NO AFFIRMATIVE ACTION TOWARD
REPRESENTING THE EMPLOYEES IN THE UNIT INVOLVED. ACCORDINGLY, I FIND
THAT NAGE LOCAL R5-126 IS DEFUNCT AND THAT THE ACTIVITY HAS NO REMAINING
OBLIGATION TO HONOR THE CURRENT AGREEMENT NEGOTIATED BETWEEN IT AND THE
NAGE OR TO RECOGNIZE THE NAGE AS THE EXCLUSIVE REPRESENTATIVE OF THE
FIREFIGHTERS IN QUESTION.
BECAUSE I HAVE FOUND THE EXCLUSIVELY RECOGNIZED REPRESENTATIVE, NAGE
LOCAL R5-126, TO BE DEFUNCT, A DECERTIFICATION ELECTION IS RENDERED
UNNECESSARY AS THERE IS NOT NOW ANY EXCLUSIVELY RECOGNIZED LABOR
ORGANIZATION REPRESENTING THE UNIT EMPLOYEES. THEREFORE, I SHALL ORDER
THAT THE SUBJECT DECERTIFICATION PETITION BE DISMISSED. /5/
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 64-2561(DR) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
MAY 30, 1975
/1/ THE PARTIES PRESENT AT THE HEARING STIPULATED AS TO THE UNIT'S
APPROPRIATENESS.
/2/ THE EVIDENCE ESTABLISHES THAT THERE WERE 34 EMPLOYEES IN THE UNIT
INVOLVED.
/3/ IT WAS STIPULATED THAT AS OF SEPTEMBER 1, 1974, THERE WERE NO
DUES PAYING MEMBERS OF NAGE LOCAL R5-126.
/4/ SEE FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION, A/SLMR NO. 173, IN WHICH THE ASSISTANT SECRETARY FOUND A
LABOR ORGANIZATION TO BE DEFUNCT "WHEN IT IS UNWILLING OR UNABLE TO
REPRESENT THE EMPLOYEES IN ITS EXCLUSIVELY RECOGNIZED OR CERTIFIED
UNIT." THE ASSISTANT SECRETARY FURTHER NOTED THAT THE "TEMPORARY
INABILITY TO FUNCTION DOES NOT CONSTITUTE DEFUNCTNESS." THERE IS NO
EVIDENCE IN THE INSTANT CASE THAT THERE WAS MERELY A TEMPORARY INABILITY
TO FUNCTION.
/5/ INASMUCH AS THE IAFF DID NOT INTERVENE IN THIS CASE ON THE BASIS
OF A CROSS-PETITION, ITS POSITION IS DEPENDENT ON THE STATUS OF THE
SUBJECT DECERTIFICATION PETITION. AS THE DECERTIFICATION PETITION
HEREIN HAS BEEN DISMISSED, THE INTERVENTION ALSO MUST NECESSARILY FALL.
IT SHOULD BE NOTED, HOWEVER, THAT THE DISMISSAL OF THE INSTANT
DECERTIFICATION PETITION DOES NOT, IN ANY WAY, PRECLUDE THE FILING OF AN
APPROPRIATE REPRESENTATION PETITION FOR THE EMPLOYEES IN THE UNIT
INVOLVED BY THE IAFF OR BY ANY OTHER LABOR ORGANIZATION.
5 A/SLMR 519; P. 357; CASE NO. 22-5144(CA); MAY 30, 1975.
UNITED STATES DEPARTMENT OF AGRICULTURE
AND AGRICULTURAL RESEARCH SERVICE
A/SLMR NO. 519
THIS PROCEEDING AROSE UPON THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT BY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1552
(COMPLAINANT) AGAINST THE UNITED STATES DEPARTMENT OF AGRICULTURE
(DEPARTMENT) AND THE AGRICULTURAL RESEARCH SERVICE (ARS). THE AMENDED
COMPLAINT ALLEGED ESSENTIALLY THAT THE DEPARTMENT AND THE ARS VIOLATED
SECTION 19(A)(6) OF THE ORDER BY DELAY AND SUBSEQUENT "EROSION" OF A
BASIC AGREEMENT NEGOTIATED AT A LOCAL LEVEL, WHICH CONSTITUTED BAD FAITH
BARGAINING.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE ARS VIOLATED SECTION
19(A)(6) OF THE ORDER BY VIRTUE OF THE CONDUCT OF THE DIRECTOR OF
PERSONNEL OF THE ARS IN REJECTING THE PARTIES' AGREEMENT OF OCTOBER 13,
1972. IN THE ADMINISTRATIVE LAW JUDGE'S VIEW, SUCH CONDUCT, IN THE
CIRCUMSTANCES OF THIS CASE, IMPROPERLY NEGATED THE AUTHORITY OF THE
ACTIVITY'S CHIEF NEGOTIATOR. MOREOVER, HE FOUND THAT THE ARS' FAILURE
TO SUBMIT THE LOCALLY NEGOTIATED AGREEMENT TO THE DEPARTMENT WITHIN 30
DAYS AFTER ITS EXECUTION, AS REQUIRED BY DEPARTMENT REGULATIONS,
VIOLATED SECTION 19(A)(6) OF THE ORDER.
THE ARS ARGUED THAT SECTION 15 OF THE ORDER PERMITS THE "HEAD OF THE
AGENCY" TO DELEGATE APPROVAL AUTHORITY TO MORE THAN ONE "DESIGNATED
OFFICIAL" AND THAT THE DEPARTMENT, UNDER THE REGULATIONS (DPM SECTION
4-5H), HAD DELEGATED APPROVAL AUTHORITY TO THE DEPARTMENT'S DIRECTOR OF
PERSONNEL AND TO "AGENCY HEADS." THEREFORE, IT CONTENDED THAT THE ARS
DIRECTOR OF PERSONNEL PROPERLY EXERCISED THAT PART OF SECTION 15
AUTHORITY GRANTED HIM UNDER THE DEPARTMENT'S REGULATIONS AND, THUS, HIS
FINDING THAT CERTAIN PROVISIONS OF THE AGREEMENT WERE CONTRARY TO
PUBLISHED POLICY AND REGULATIONS DID NOT NEGATE THE DELEGATED AUTHORITY
OF THE ACTIVITY'S CHIEF NEGOTIATOR.
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THE ASSISTANT
SECRETARY FOUND THAT THE ARS VIOLATED SECTION 19(A)(6) OF THE ORDER. IN
REACHING THIS CONCLUSION, THE ASSISTANT SECRETARY REJECTED THE ARS'
CONTENTION THAT THE DIRECTOR OF PERSONNEL OF THE ARS WAS AN APPROPRIATE
APPROVAL AUTHORITY UNDER SECTION 15 OF THE ORDER WHEN HE RETURNED THE
LOCALLY SIGNED AGREEMENT TO THE PARTIES AND FOUND THAT THE
INTERPRETATION OF DPM SECTION 4-5H BY THE ARS TO ESTABLISH A DUAL LEVEL
OF APPROVAL FOR EXECUTED NEGOTIATED AGREEMENTS AND ITS SUBSEQUENT
APPLICATION OF SUCH APPROVAL AUTHORITY WAS INCONSISTENT WITH THE INTENT
OF SECTION 15 AND WITH THE ARS' OBLIGATION UNDER SECTION 11(A) OF THE
ORDER TO MEET AT REASONABLE TIMES AND CONFER IN GOOD FAITH.
HOWEVER, THE ASSISTANT SECRETARY FOUND, CONTRARY TO THE
ADMINISTRATIVE LAW JUDGE, THAT THE ARS DID NOT VIOLATE SECTION 19(A)(6)
BY ITS REFUSAL TO SUBMIT THE SIGNED AGREEMENT TO THE DIRECTOR OF
PERSONNEL OF THE DEPARTMENT WITHIN 30 DAYS FROM THE EXECUTION BY THE
PARTIES AS REQUIRED BY AGENCY REGULATIONS. IN THIS REGARD, HE NOTED
THAT THE FAILURE OF AN AGENCY TO FOLLOW ITS OWN REGULATIONS OR
PROCEDURES IS NOT NECESSARILY AN UNFAIR LABOR PRACTICE UNDER THE ORDER.
THUS, ABSENT EVIDENCE OF ANTI-UNION MOTIVATION, WHICH WAS NOT PRESENT IN
THE INSTANT CASE, HE FOUND THAT ANY VIOLATION OF AGENCY REGULATIONS
WHICH OCCURRED HEREIN WAS NOT VIOLATIVE OF SECTION 19(A) OF THE ORDER.
FURTHER, IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THE
ASSISTANT SECRETARY FOUND THAT THE DEPARTMENT PROPERLY EXERCISED ITS
SECTION 15 APPROVAL AUTHORITY AND, THEREFORE, ITS CONDUCT WAS NOT VIEWED
AS BEING VIOLATIVE OF THE ORDER.
BASED ON HIS DECISION, THE ASSISTANT SECRETARY ORDERED THE ARS TO
CEASE AND DESIST FROM ITS CONDUCT FOUND VIOLATIVE OF THE ORDER AND TO
TAKE CERTAIN AFFIRMATIVE ACTIONS.
UNITED STATES DEPARTMENT
OF AGRICULTURE
AND
AGRICULTURAL RESEARCH SERVICE
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1552
ON NOVEMBER 21, 1974, ADMINISTRATIVE LAW JUDGE WILLIAM B. DEVANEY
ISSUED HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT AGRICULTURAL RESEARCH SERVICE, HEREINAFTER
RECOMMENDING THAT IT TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN THE
ATTACHED ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATION. THE
ADMINISTRATIVE LAW JUDGE ALSO FOUND THAT FURTHER PROCEEDINGS AGAINST THE
RESPONDENT UNITED STATES DEPARTMENT OF AGRICULTURE, HEREINAFTER REFERRED
TO AS THE DEPARTMENT, WERE UNWARRANTED. THEREAFTER, THE ARS FILED
EXCEPTIONS AND A SUPPORTING BRIEF WITH RESPECT TO THE ADMINISTRATIVE LAW
JUDGE'S REPORT AND RECOMMENDATION.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE
ARS' EXCEPTIONS AND SUPPORTING BRIEF, I HEREBY ADOPT THE FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE, EXCEPT
AS MODIFIED BELOW.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE REJECTION OF THE OCTOBER
13, 1972, NEGOTIATED AGREEMENT BY THE DIRECTOR OF PERSONNEL OF THE ARS,
TO WHOM NO SECTION 15 APPROVAL AUTHORITY WAS DELEGATED, NEGATED THE
AUTHORITY OF THE ACTIVITY'S CHIEF NEGOTIATOR, CONTRARY TO THE
REQUIREMENT OF SECTION 11(A) OF THE ORDER AND THE DEPARTMENT PERSONNEL
MANUAL (DPM) CHAPTER 711, SUBSECTION 4-3, AND, THUS, VIOLATED SECTION
19(A)(6) OF THE ORDER. HE ALSO FOUND THAT THE FAILURE OF THE ARS TO
SUBMIT THE LOCALLY NEGOTIATED AGREEMENT OF OCTOBER 13, 1972, TO THE
DEPARTMENT'S DIRECTOR OF PERSONNEL WITHIN 30 DAYS AFTER ITS EXECUTION AS
REQUIRED BY DPM SUBCHAPTER 711, SECTION 4-5H, /1/ TO BE AN UNREASONABLE
DELAY IN BARGAINING IN VIOLATION OF SECTION 19(A)(6) OF THE ORDER. AS
TO THE DEPARTMENT'S REJECTION THROUGH ITS DIRECTOR OF PERSONNEL OF FOUR
PROVISIONS OF THE NEGOTIATED AGREEMENT WHICH WERE FOUND TO BE CONTRARY
TO APPLICABLE LAWS AND REGULATIONS, THE ADMINISTRATIVE LAW JUDGE FOUND
NO VIOLATION OF THE ORDER AS SUCH CONDUCT, IN HIS VIEW, WAS CONSISTENT
WITH THE PURPOSES OF SECTION 15 OF THE ORDER.
THE GRAVAMEN OF THE ARS' EXCEPTIONS IN THIS MATTER IS THAT SECTION 15
OF THE ORDER PERMITS THE "HEAD OF THE AGENCY" TO DELEGATE APPROVAL
AUTHORITY TO MORE THAN ONE DESIGNATED OFFICIAL AND THAT THE DEPARTMENT,
UNDER DPM SECTION 4-5H, HAD DELEGATED APPROVAL AUTHORITY TO THE DIRECTOR
OF PERSONNEL AND TO "AGENCY HEADS." /2/ THEREFORE, IT CONTENDS THAT THE
ARS DIRECTOR OF PERSONNEL PROPERLY EXERCISED THAT PART OF SECTION 15
AUTHORITY GRANTED TO HIM UNDER THE DEPARTMENT'S REGULATIONS AND, THUS,
HIS FINDING THAT CERTAIN PROVISIONS OF THE AGREEMENT WERE CONTRARY TO
PUBLISHED POLICY AND REGULATIONS DID NOT NEGATE THE DELEGATED AUTHORITY
OF THE ACTIVITY'S CHIEF NEGOTIATOR. I CANNOT AGREE WITH RESPONDENT ARS'
INTERPRETATION OF SECTION 15 OF EXECUTIVE ORDER 11491, AS AMENDED.
THE STUDY COMMITTEE REPORT AND RECOMMENDATIONS (AUGUST 1969) POINTED
OUT SOME OF THE DIFFICULTIES THAT HAD BEEN ENCOUNTERED WITH REGARD TO
THE APPROVAL OF AGREEMENTS IN THE FEDERAL SECTOR. IN THIS REGARD, IT
WAS NOTED THAT WHERE THE APPROVAL PROCESS RESULTED IN UNWARRANTED DELAY,
OR IN UNNECESSARY OR ARBITRARY REVISION OF LOCALLY NEGOTIATED AGREEMENTS
ON THE BASIS OF DISAGREEMENT WITH THE LANGUAGE OR SUBSTANCE OF WHAT HAD
BEEN NEGOTIATED, UNION COMPLAINTS CONCERNING THE FACT THAT A NEGOTIATED
AGREEMENT MUST BE APPROVED BY THE AGENCY HEAD OR HIS DESIGNATED
REPRESENTATIVE SEEMED JUSTIFIED. ALTHOUGH THE 1969 REPORT AND
RECOMMENDATIONS CONCLUDED THAT THE REQUIREMENT FOR AGENCY APPROVAL WAS
NECESSARY AND SHOULD BE CONTINUED, IT RECOGNIZED THAT SOME LIMITATION
SHOULD BE INCORPORATED INTO THE APPROVAL PROCESS AND RECOMMENDED THAT
"APPROVAL OR DISAPPROVAL" BE BASED SOLELY UPON THE AGREEMENT'S
CONFORMITY WITH LAWS, EXISTING PUBLISHED AGENCY POLICIES AND REGULATIONS
AND WITH THE REGULATIONS OF OTHER APPROPRIATE AUTHORITIES. IN ADDITION,
THE REPORT AND RECOMMENDATIONS OF THE FEDERAL LABOR RELATIONS COUNCIL
(1975) RECOGNIZED THAT ELIMINATION OF THE PROBLEM OF UNWARRANTED DELAYS
IN THE REVIEW OF NEGOTIATED AGREEMENTS BY AGENCY AUTHORITIES HAD NOT
BEEN "TOTALLY REALIZED." IN ITS ATTEMPT TO ASSURE THAT THE APPROVAL
PROCESS WAS ACCELERATED TO THE MAXIMUM EXTENT POSSIBLE IT ENCOURAGED
AGENCIES TO EXPEDITE THEIR APPROVAL PROCESS BY SUCH MEANS AS ELIMINATING
INTERMEDIATE LEVELS OF REVIEW, DELEGATING APPROVAL AUTHORITY AS CLOSE AS
POSSIBLE TO THE LEVEL OF NEGOTIATIONS, EXERCISING REVIEW ON A POST-AUDIT
BASIS, AND STREAMLINING INTERNAL PROCEDURES. IN THE COUNCIL'S VIEW,
"THE GOAL OF THE NEGOTIATING PARTIES AND REVIEWING OFFICIALS SHOULD BE
TO SEE THAT NEGOTIATED AGREEMENTS ARE PUT INTO EFFECT AS SOON AS
REASONABLY POSSIBLE AFTER EXECUTION. THAT IS THE POLICY GOAL OF THE
COUNCIL." FURTHER, IN CONNECTION WITH ACHIEVING THE FOREGOING GOALS OF
ACCELERATING THE APPROVAL PROCESS, THE COUNCIL RECOMMENDED THAT SECTION
15 OF THE ORDER BE MODIFIED TO INCLUDE A REQUIREMENT THAT ACTION MUST BE
TAKEN BY AN AGENCY HEAD OR HIS DESIGNATED REPRESENTATIVE TO APPROVE OR
DISAPPROVE A NEGOTIATED AGREEMENT WITHIN 45 DAYS FROM THE DATE OF ITS
EXECUTION BY THE PARTIES. /3/
BASED ON THE CLEAR INTENT EXPRESSED BY THE STUDY COMMITTEE'S REPORT
AND RECOMMENDATIONS OF 1969, THE COUNCIL'S REPORT AND RECOMMENDATIONS OF
1975 CONCERNING THE DESIRE FOR ACCELERATION OF THE APPROVAL PROCESS AND
NOTING THE REQUIREMENT OF SECTION 11(A) IMPOSED ON AGENCIES AND
EXCLUSIVE REPRESENTATIVES "TO MEET AT REASONABLE TIMES AND CONFER IN
GOOD FAITH", I FIND THAT THE GRANTING OF APPROVAL AUTHORITY TO MORE THAN
ONE LEVEL FOR REVIEW IS INCONSISTENT WITH THE PURPOSES AND POLICIES OF
THE ORDER. THUS, TO SUBJECT LOCALLY NEGOTIATED AGREEMENTS TO
INTERMEDIATE LEVELS OF APPROVAL WOULD, IN MY JUDGMENT, RESULT IN AN
UNSETTLING EFFECT ON LABOR RELATIONS IN THE FEDERAL SECTOR BY IMPAIRING
AND SUBSTANTIALLY DELAYING THE COLLECTIVE BARGAINING PROCESS. WHILE
CLEARLY AN AGENCY MAY CHOOSE TO DELEGATE ITS SECTION 15 APPROVAL
AUTHORITY TO AN INTERMEDIATE LEVEL OR, IN THE ALTERNATIVE, PROVIDE THAT
AN INTERMEDIATE OFFICIAL REVIEW THE EXECUTED AGREEMENT AND FORWARD THAT
AGREEMENT, WITH ANY COMMENTS, TO THE "APPROVAL" AUTHORITY, I DO NOT
BELIEVE THAT THE ESTABLISHMENT OF INTERMEDIATE, INDEPENDENT APPROVAL
AUTHORITIES IS CONSISTENT WITH THE INTENT AND PURPOSES OF SECTION 15.
AS DEMONSTRATED BY THE CIRCUMSTANCES HEREIN, WHERE AN AGENCY SEEKS TO
DELEGATE A PORTION OF ITS APPROVAL AUTHORITY TO AN INTERMEDIATE LEVEL
AND STILL RETAINS A PORTION OF THAT AUTHORITY IN THE AGENCY HEAD, AN
ADDITIONAL LEVEL OF REVIEW AND APPROVAL IS CREATED WHICH IS TIME
CONSUMING, LACKS FINALITY, AND, IN EFFECT, CREATES UNREASONABLE DELAYS
IN THE CONSUMMATING OF NEGOTIATED AGREEMENTS. CLEARLY, THE PURPOSES OF
THE ORDER ARE NOT BEST SERVED WHERE, AS HERE, AN AGENCY HEAD OR HIS
REPRESENTATIVE WHO HAS BEEN DESIGNATED TO HAVE SECTION 15 APPROVAL UNTIL
NEARLY NINE MONTHS AFTER ITS ORIGINAL SIGNING BECAUSE OF THE
INTERMEDIATE APPROVAL LEVEL'S PRIOR INCOMPLETE REVIEW AND SUBSEQUENT
RETURN OF THAT AGREEMENT TO THE LOCAL LEVEL FOR MODIFICATION. /4/
UNDER THESE CIRCUMSTANCES, I REJECT THE ARS' CONTENTION THAT THE
DIRECTOR OF PERSONNEL OF THE ARS WAS AN APPROPRIATE APPROVAL AUTHORITY
UNDER SECTION 15 OF THE ORDER WHEN HE RETURNED THE LOCALLY SIGNED
AGREEMENT OF OCTOBER 13, 1972, TO THE PARTIES. THUS, BASED ON THE
FOREGOING CONSIDERATIONS, I FIND THAT THE INTERPRETATION AND APPLICATION
OF DPM SECTION 4-5H BY THE ARS TO ESTABLISH A DUAL LEVEL OF APPROVAL FOR
EXECUTED NEGOTIATED AGREEMENTS AND ITS RETURNING OF THE AGREEMENT TO THE
PARTIES WAS INCONSISTENT WITH THE INTENT OF SECTION 15 AND WITH THE ARS'
OBLIGATION UNDER SECTION 11(A) OF THE ORDER TO MEET AT REASONABLE TIMES
AND CONFER IN GOOD FAITH. ACCORDINGLY, I CONCLUDE THAT THE ARS' CONDUCT
IN INTERPRETING DPM SECTION 4-5H TO ESTABLISH A DUAL LEVEL OF APPROVAL
AND ITS SUBSEQUENT APPLICATION OF SUCH APPROVAL AUTHORITY WAS VIOLATIVE
OF SECTION 19(A)(6) OF THE ORDER.
HOWEVER, CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, I FIND THAT THE
ARS DID NOT VIOLATE SECTION 19(A)(6) BY ITS REFUSAL TO SUBMIT THE SIGNED
AGREEMENT TO THE DIRECTOR OF PERSONNEL OF THE DEPARTMENT WITHIN 30 DAYS
FROM THE EXECUTION BY THE PARTIES AS REQUIRED BY DEPARTMENT REGULATIONS.
AS NOTED IN THE EXCEPTIONS HEREIN, THE FAILURE OF AN AGENCY TO FOLLOW
ITS OWN REGULATIONS OR PROCEDURES IS NOT NECESSARILY AN UNFAIR LABOR
PRACTICE UNDER THE ORDER. /5/ THUS, ABSENT EVIDENCE OF ANTI-UNION
MOTIVATION, WHICH WAS NOT PRESENT IN THE INSTANT CASE, I FIND THAT ANY
VIOLATION OF DEPARTMENT REGULATIONS WHICH OCCURRED HEREIN WAS NOT
VIOLATIVE OF SECTION 19(A) OF THE ORDER. ACCORDINGLY, I CONCLUDE THAT
THIS ASPECT OF THE COMPLAINT SHOULD BE DISMISSED.
FINALLY, WHILE THE ARS' CONDUCT AS AN INTERMEDIATE APPROVING
AUTHORITY WAS VIEWED AS BEING VIOLATIVE OF SECTION 19(A)(6), I FIND, IN
AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THAT THE DEPARTMENT
PROPERLY EXERCISED ITS SECTION 15 APPROVAL AUTHORITY ON MAY 25, 1973,
AND, THEREFORE, ITS CONDUCT WAS NOT VIEWED AS BEING VIOLATIVE OF THE
ORDER.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE UNITED STATES
DEPARTMENT OF AGRICULTURE, AGRICULTURAL RESEARCH SERVICE, BELTSVILLE,
MARYLAND, SHALL:
1. CEASE AND DESIST FROM:
APPLYING DPM SUBCHAPTER 711, SECTION 4-5H TO REQUIRE TWO LEVELS OF
APPROVAL OF NEGOTIATED AGREEMENTS WITH EACH LEVEL HAVING THE AUTHORITY
TO RETURN SUCH AGREEMENTS FOR CONFORMANCE WITH APPLICABLE LAWS, THE
ORDER, EXISTING PUBLISHED AGENCY POLICIES AND REGULATIONS AND
REGULATIONS OF OTHER APPROPRIATE AUTHORITIES.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSE AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
A. POST AT ITS NORTHERN REGIONAL RESEARCH CENTER FACILITY, PEORIA,
ILLINOIS, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE
FURNISHED BY THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT
RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
DIRECTOR OF THE AGRICULTURAL RESEARCH SERVICE AND SHALL BE POSTED AND
MAINTAINED BY THE DIRECTOR OF THE NORTHERN REGIONAL RESEARCH CENTER FOR
SIXTY (60) CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING
ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE DIRECTOR OR THE NORTHERN REGIONAL RESEARCH
CENTER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
B. PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE COMPLAINT, INSOFAR AS IT ALLEGES
ADDITIONAL VIOLATIONS OF SECTION 19(A)(6), BE, AND IT HEREBY IS,
DISMISSED.
DATED, WASHINGTON, D.C.
MAY 30, 1975
/1/ DPM SUBCHAPTER 711, SECTION 4-5H PROVIDES THAT:
ALL BASIC AGREEMENTS, ANY SUPPLEMENTS AND AMENDMENTS THERETO OR ANY
EXTENSIONS OR RENEWALS
OF AGREEMENTS SHALL BE SUBMITTED, FOR REVIEW AND APPROVAL BY THE
DIRECTOR OF PERSONNEL OR HIS
DESIGNEE NO LATER THAN THIRTY (30) CALENDAR DAYS AFTER THE DATE OF
EXECUTION BY THE
PARTIES. SUCH AGREEMENTS MUST HAVE BEEN APPROVED BY THE AGENCY AND
RATIFIED BY THE LABOR
ORGANIZATION, IF NECESSARY. REVIEW BY THE DIRECTOR OF PERSONNEL
SHALL BE FOR THE PURPOSE OF
SCREENING FOR CONFLICTS WITH APPLICABLE LAWS, REGULATIONS AND
PUBLISHED DEPARTMENT POLICIES
AND REGULATIONS. AGENCY HEADS SHALL ASSURE THAT THE NEGOTIATED
AGREEMENT IS IN COMPLIANCE
WITH PUBLISHED POLICIES AND REGULATIONS OF THE AGENCY AND APPROPRIATE
SUBORDINATE LEVELS
BEFORE FORWARDING THE AGREEMENT TO THE DIRECTOR OF PERSONNEL.
/2/ IT WAS NOTED THAT THE ARS' USE OF THE TERM "AGENCY" IN ITS
EXCEPTIONS IS INCONSISTENT WITH THE DEFINITION CONTAINED IN SECTION 2(A)
OF THE ORDER WHICH PROVIDES:
"AGENCY" MEANS AN EXECUTIVE DEPARTMENT, A GOVERNMENT CORPORATION, AND
AN INDEPENDENT
ESTABLISHMENT AS DEFINED IN SECTION 104 OF TITLE 5, UNITED STATES
CODE, EXCEPT THE GENERAL
ACCOUNTING OFFICE;"
CLEARLY, THE DEPARTMENT HEREIN IS AN "AGENCY" WITHIN THE MEANING OF
THE ORDER AND THE ARS IS A COMPONENT ACTIVITY OF THAT AGENCY.
/3/ AS A RESULT, SECTION 15 NOW REQUIRES THAT:
AN AGREEMENT WITH A LABOR ORGANIZATION AS THE EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES IN A
UNIT IS SUBJECT TO THE APPROVAL OF THE HEAD OF THE AGENCY OR AN
OFFICIAL DESIGNATED BY
HIM. AN AGREEMENT SHALL BE APPROVED WITHIN FORTY-FIVE DAYS FROM THE
DATE OF ITS EXECUTION IF
IT CONFORMS TO APPLICABLE LAWS, THE ORDER, EXISTING PUBLISHED AGENCY
POLICY AND REGULATIONS
(UNLESS THE AGENCY HAS GRANTED AN EXCEPTION TO A POLICY OR
REGULATION) AND REGULATIONS OF
OTHER APPROPRIATE AUTHORITIES. AN AGREEMENT WHICH HAS NOT BEEN
APPROVED OR DISAPPROVED WITHIN
FORTY-FIVE DAYS FROM THE DATE OF ITS EXECUTION SHALL GO INTO EFFECT
WITHOUT THE REQUIRED
APPROVAL OF THE AGENCY HEAD AND SHALL BE BINDING ON THE PARTIES
SUBJECT TO THE PROVISIONS OF
LAW, THE ORDER AND THE REGULATIONS OF APPROPRIATE AUTHORITIES OUTSIDE
THE AGENCY. A LOCAL
AGREEMENT SUBJECT TO A NATIONAL OR OTHER CONTROLLING AGREEMENT AT A
HIGHER LEVEL SHALL BE
APPROVED UNDER THE PROCEDURES OF THE CONTROLLING AGREEMENT, OR, IF
NONE, UNDER AGENCY
REGULATIONS.
/4/ THE SUBJECT CASE AROSE AND WAS LITIGATED PRIOR TO THE RECENT
AMENDMENTS TO EXECUTIVE ORDER 11491. HOWEVER, IT APPEARS THAT THE NEW
45 DAY REQUIREMENT WOULD NOT NECESSARILY REMEDY THE TYPE OF IMPROPER
CONDUCT WHICH I FIND WAS INVOLVED HEREIN. THUS, EVEN UNDER THE CURRENT
ORDER, AN INTERMEDIATE LEVEL OF REVIEW AND APPROVAL COULD DISAPPROVE AN
AGREEMENT WITHIN THE PRESCRIBED 45 DAY PERIOD AND THE PARTIES AT THE
LOCAL LEVEL COULD NOT BE ASSURED, AS DEMONSTRATED BY THE FACTS IN THE
INSTANT CASE, THAT CONFORMING THE AGREEMENT IN ACCORDANCE WITH THE
RECOMMENDATION OF THE INTERMEDIATE LEVEL WOULD SUBSEQUENTLY RESULT IN AN
APPROVED AGREEMENT SINCE THE AGENCY HEAD OR HIS DESIGNATED
REPRESENTATIVE HAD NOT YET RECEIVED SUCH AGREEMENT TO ASCERTAIN WHETHER
IT CONFORMS TO APPLICABLE LAWS, THE ORDER, EXISTING AGENCY POLICIES AND
REGULATIONS, AND REGULATIONS OF OTHER APPROPRIATE AUTHORITIES.
/5/ CF. OFFICE OF ECONOMIC OPPORTUNITY, REGION V, CHICAGO, ILLINOIS,
A/SLMR NO. 334.
IN THE MATTER OF:
DEPARTMENT OF AGRICULTURE
AGRICULTURAL RESEARCH SERVICE,
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES LOCAL 1552,
JANET COOPER, ESQUIRE
STAFF ATTORNEY
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1552
1737 "H" STREET, N.W.
WASHINGTON, D.C. 20006
CHARLES H. COOK
LABOR RELATIONS OFFICER
RICHARD FINNEGAN
CHIEF,
LABOR RELATIONS BRANCH
PERSONNEL DIVISION
AGRICULTURAL RESEARCH SERVICE
UNITED STATES DEPARTMENT OF AGRICULTURE
HYATTSVILLE, MARYLAND 20782
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED. IT WAS
INITIATED BY A COMPLAINT DATED NOVEMBER 26, 1973, AND FILED NOVEMBER 28,
1973 (ASS'T. SEC. EXH. LA), AND AN AMENDED COMPLAINT DATED DECEMBER 6,
1973 (ASS'T. SEC. EXH. LC). BOTH THE ORIGINAL COMPLAINT AND AMENDED
COMPLAINT ALLEGED A VIOLATION OF SECTION 19(A)(6) OF THE EXECUTIVE
ORDER, AS THE RESULT, INTER ALIA, OF THE DIRECTOR, PERSONNEL DIVISION,
ARS (HEREINAFTER, AGRICULTURAL RESEARCH SERVICE IS ALSO REFERRED TO AS
"ARS AND THE DEPARTMENT OF AGRICULTURE AS "DEPARTMENT"), TO WHOM NO
SECTION 15 AUTHORITY HAD BEEN DELEGATED, DISAPPROVING AN AGREEMENT
ENTERED INTO BY THE AGENCY'S CHIEF NEGOTIATOR; FAILING AND REFUSING TO
SUBMIT THE SIGNED AGREEMENT TO THE DEPARTMENT'S DIRECTOR OF PERSONNEL
WITHIN THE TIME REQUIRED BY THE DEPARTMENT'S REGULATIONS, AND THE
DEPARTMENT DECLARING PROVISIONS OF AN AGREEMENT INOPERATIVE, AS CONTRARY
TO LAW, AFTER THE AGREEMENT HAD BEEN PERMITTED TO BECOME EFFECTIVE.
A HEARING WAS DULY HELD IN WASHINGTON, D.C., BEFORE THE UNDERSIGNED
/1/ AND BRIEFS WERE TIMELY FILED AND HAVE BEEN CAREFULLY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS CASE, I MAKE THE FOLLOWING FINDINGS,
CONCLUSIONS AND ORDER.
THE FACTS ARE NOT IN DISPUTE AND EITHER HAVE BEEN STIPULATED (JOINT
EXH. 1) OR CLARIFIED AND EXPANDED UPON BY FURTHER JOINT EXHIBITS AND
TESTIMONY AND MAY BE BRIEFLY STATED AS FOLLOWS:
1. LOCAL 1552 HAS BEEN RECOGNIZED AS THE EXCLUSIVE REPRESENTATIVE
FOR ALL NON-SUPERVISORY WAGE GRADE EMPLOYEES AT ARS' NORTHERN REGIONAL
RESEARCH CENTER, PEORIA, ILLINOIS, SINCE 1968. /2/ THE FIRST AGREEMENT
WAS NEGOTIATED IN 1968 FOR A TERM OF TWO YEARS; AND WAS AUTOMATICALLY
RENEWED FOR A FURTHER TERM OF TWO YEARS WITH A TERMINATION DATE OF
DECEMBER 18, 1972.
2. ON MARCH 9, 1972, LOCAL 1552 REQUESTED RENEGOTIATION; AND ON MAY
24, 1972, A DOCUMENT ENTITLED "MEMORANDUM OF UNDERSTANDING, RULES AND
PROCEDURES FOR NEGOTIATION SESSIONS" WAS SIGNED BY THE PARTIES (JOINT
EXH. 5), WHICH PROVIDED, IN PART, AS FOLLOWS:
"II. NEGOTIATORS
A. BOTH EMPLOYER (PREVIOUSLY DEFINED AS THE 'NMN DIVISION USDA,
ARS') AND UNION
REPRESENTATIVES WILL BE PREPARED AND AUTHORIZED TO NEGOTIATE ON ANY
NEGOTIABLE ITEM CONTAINED
WITHIN ORIGINAL PROPOSAL(S).
"V. AUTHORITY IN NEGOTIATIONS
THE CHIEF NEGOTIATOR FOR THE EMPLOYER IS AUTHORIZED BY THE DIRECTOR
OF NMN TO NEGOTIATE ON
ALL MATTERS WITHIN HIS DELEGATED AUTHORITY AND DISCRETION AND WHICH
ARE WITHIN THE PURVIEW OF
EXECUTIVE ORDER 11491, AS AMENDED. IT IS LIKEWISE UNDERSTOOD THAT
THE CHIEF NEGOTIATOR FOR
THE UNION SHALL HAVE IDENTICAL AUTHORITY AND RESPONSIBILITY FOR THE
UNION." (JOINT EXH. 5).
3. NEGOTIATIONS BEGAN JULY 5, 1972, AND AN AGREEMENT WAS SIGNED BY
THE LOCAL PARTIES OCTOBER 13, 1972 (JOINT EXH. 6), AND TRANSMITTED TO
ARS HEADQUARTERS IN WASHINGTON.
4. BY LETTER DATED NOVEMBER 10, 1972 (JOINT EXH. 8), THE DIRECTOR,
PERSONNEL DIVISION, ARS, MR. GLAVIS B. EDWARDS, ADVISED THE PERSONNEL
OFFICER IN PEORIA, MR. MEYNERS, THAT THE AGREEMENT WAS RETURNED WITH
SOME NINETEEN REQUIRED CHANGES. MR. EDWARDS, STATED, IN PART AS
FOLLOWS:
" . . . APPROVAL CANNOT BE GRANTED UNTIL THE AGREEMENT IS BROUGHT
INTO CONFORMANCE WITH
APPROPRIATE RULES AND REGULATIONS . . . " (JOINT EXH. 8).
AFTER RECEIPT OF THE LETTER, THE LOCAL PARTIES SUBMITTED THE MATTER
TO THEIR RESPECTIVE NATIONAL HEADQUARTERS FOR SETTLEMENT. BY LETTER
DATED APRIL 10, 1973, MR. EDWARDS ADVISED THE PERSONNEL OFFICER IN
PEORIA, MR. MEYNERS, OF THE CHANGES WORKED OUT BY HIS OFFICE AND NFFE
NATIONAL HEADQUARTERS AND BY LETTER DATED APRIL 13, 1973, THE PRESIDENT
OF NFFE, MR. N. T. WOLKOMIR, WROTE MR. DONALD D. HENDRICK, PRESIDENT OF
LOCAL 1552, URGING ADOPTION OF THE CHANGES AGREED UPON AND SET FORTH IN
MR. EDWARDS' LETTER OF APRIL 10, 1973 (JOINT EXH. 10). ON MAY 25, 1973,
A REVISED AGREEMENT INCORPORATING THE CHANGES WAS SIGNED BY THE LOCAL
PARTIES (JOINT EXH. 11) AND WAS TRANSMITTED TO ARS HEADQUARTERS IN
WASHINGTON. BY LETTER DATED JUNE 11, 1973, THE DIRECTOR, PERSONNEL
DIVISION, ARS, MR. EDWARDS, TRANSMITTED THE AGREEMENT TO THE DEPARTMENT
(JOINT EXH. 12).
5. THE DEPARTMENT'S PERSONNEL MANUAL PROVIDES, IN PART, AS FOLLOWS:
"4-5. NEGOTIATION OF AGREEMENTS
"H. ALL BASIC AGREEMENTS, ANY SUPPLEMENTS AND AMENDMENTS THERETO OR
ANY EXTENSIONS OR
RENEWALS OF AGREEMENTS SHALL BE SUBMITTED, FOR REVIEW AND APPROVAL BY
THE DIRECTOR OF
PERSONNEL OR HIS DESIGNEE NO LATER THAN THIRTY (30) CALENDAR DAYS
AFTER THE DATE OF EXECUTION
BY THE PARTIES. SUCH AGREEMENTS MUST HAVE BEEN APPROVED BY THE LABOR
ORGANIZATION, IF
NECESSARY. REVIEW BY THE DIRECTOR OF PERSONNEL SHALL BE FOR THE
PURPOSE OF SCREENING FOR
CONFLICTS WITH APPLICABLE LAWS, REGULATIONS AND PUBLISHED DEPARTMENT
POLICIES AND
REGULATIONS. AGENCY HEADS SHALL ASSURE THAT THE NEGOTIATED AGREEMENT
IS IN COMPLIANCE WITH
PUBLISHED POLICIES AND REGULATIONS OF THE AGENCY AND APPROPRIATE
SUBORDINATE LEVELS BEFORE
FORWARDING THE AGREEMENT TO THE DIRECTOR OF PERSONNEL.
"I. THE EFFECTIVE DATE OF AN AGREEMENT . . . WILL BE THE DATE OF ITS
APPROVAL BY THE
DIRECTOR OF PERSONNEL. HOWEVER, ANY AGREEMENT NOT APPROVED OR
REFERRED TO THE PARTIES FOR
FURTHER NEGOTIATION BY THE 45TH DAY AFTER EXECUTION BY THE PARTIES
SHALL BECOME EFFECTIVE ON
THE 46TH DAY SUBJECT TO POST AUDIT BY THE DIRECTOR OF PERSONNEL."
(JOINT EXH. 7, DPM-711,
SUBCHAPTER 4).
6. THE AGREEMENT HAVING BEEN APPROVED BY ARS AND THE DEPARTMENT
HAVING FAILED TO ACT BY THE 45TH DAY AFTER THE MAY 25, 1973, EXECUTION
BY THE PARTIES, THE AGREEMENT BECAME EFFECTIVE JULY 10, 1973. BY LETTER
DATED JULY 23, 1973, THE ASSISTANT DIRECTOR OF PERSONNEL OF THE
DEPARTMENT, MR. AUGUST M. SEEGER, ADVISED THE DIRECTOR, PERSONNEL
DIVISION, ARS, MR. EDWARDS, THAT THE AGREEMENT HAD BEEN FOUND TO COMPLY
WITH APPLICABLE LAWS AND DEPARTMENT REGULATIONS EXCEPT IN FOUR
PROVISIONS: SECTION 4.2-SCOPE; SECTION 4.5-MEETING PLACE; SECTION
6.2-PROCEDURE FOR ALL CONTRACT GRIEVANCES, STEP 2 (JOINT EXH. 13). BY
LETTER DATED AUGUST 3, 1973 (JOINT EXH. 14), THE DIRECTOR, PERSONNEL
DIVISION, ARS, TRANSMITTED MR. SEEGER'S LETTER OF JULY 23, 1973, TO THE
PERSONNEL OFFICER, MR. MEYNERS, IN PEORIA, WITH A COPY TO NFFE.
7. BY LETTER DATED AUGUST 13, 1973 (JOINT EXH. 15), THE PRESIDENT OF
NFFE, MR. WOLKOMIR, ADVISED MR. SEEGER THAT NFFE COULD NOT ACCEPT HIS
COMMENTS WITH REGARD TO SECTION 4.2 AND 6.2, STEP 2 AND THAT HE WAS
ADVISING LOCAL 1552 TO REFUSE TO ALTER THOSE PROVISIONS.
8. BY LETTER DATED AUGUST 22, 1973 (JOINT EXH. 16) MR. SEEGER
RESPONDED TO MR. WOLKOMIR'S LETTER OF AUGUST 13, 1973, AND STATED, IN
PART, THAT,
"SINCE YOU RAISE OBJECTIONS ONLY TO OUR COMMENTS IN RESPECT TO
SECTIONS 4.2 AND 6.2, STEP
2, OF THE AGREEMENT, WE ASSUME THAT THE OTHER ACTIONS WE SUGGEST ARE
ACCEPTABLE AND WILL BE
INCORPORATED INTO THE AGREEMENT." (JOINT EXH. 16)
9. BY LETTER DATED AUGUST 30, 1973 (JOINT EXH. 17), MR. WOLKOMIR
RESPONDED TO MR. SEEGER'S LETTER OF AUGUST 22, 1973, AND STATED, IN
PART, AS FOLLOWS:
"WE ARE PREPARED TO ARGUE OUR CASE BEFORE THE FEDERAL LABOR RELATIONS
COUNCIL. WE
THEREFORE REQUEST AN AGENCY HEAD DETERMINATION ON NEGOTIABILITY SO
THAT WE MAY PROCEED WITH
OUR APPEAL." (JOINT EXH. 17)
10. BY LETTER DATED SEPTEMBER 14, 1973 (JOINT EXH. 18) ADDRESSED TO
MR. WOLKOMIR THE DIRECTOR OF PERSONNEL, OF THE DEPARTMENT, MR. S. B.
PRANGER, SET FORTH THE DEPARTMENT'S DETERMINATION ON NEGOTIABILITY.
11. BY LETTER DATED OCTOBER 15, 1973, MR. WOLKMOIR ADVISED MR.
SEEGER THAT HE WAS THEREBY CHARGED WITH VIOLATING SECTION 19(A)(6) OF
THE EXECUTIVE ORDER (JOINT EXH. 19) AND MR. SEEGER RESPONDED BY LETTER
DATED OCTOBER 19, 1973 (JOINT EXH. 20) IN WHICH HE REFERRED TO THE
AGENCY HEAD DETERMINATION ON NEGOTIABILITY WHICH HAD BEEN REQUESTED AND
FURNISHED, " . . . SO YOU COULD APPEAL TO THE FEDERAL LABOR RELATIONS
COUNCIL."
12. AT THE HEARING NFFE STATED THAT THE COMMENTS OF THE DEPARTMENT
OF JULY 23, 1973 (JOINT EXH. 14) WITH REGARD TO SECTIONS 4.5 AND 6.2,
STEP 1 HAD BEEN "AGREED TO BY THE PARTIES, AS PROPER CHANGES" (TR. 19);
THAT THESE SECTIONS HAD BEEN "SETTLED" - "WE CHANGED IT" (TR. 20).
13. THE CURRENT PRESIDENT OF LOCAL 1552, MR. JOHN W. SMITH, JR.,
TESTIFIED THAT THE JOINT HEARING COMMITTEE, WHICH IS ONE OF THE
PROVISIONS IN DISPUTE (SECTION 6.2, STEP 2), HAS BEEN USED (TR. 29, 36);
BUT THE REGIONAL PERSONNEL OFFICER OF ARS, MR. HERMAN H. MEYNERS,
TESTIFIED THAT, TO HIS KNOWLEDGE, THERE HAD BEEN NO GRIEVANCE AND,
ACCORDINGLY, NO OCCASION TO USE THE NEGOTIATED GRIEVANCE PROCEDURES AND
THAT THE JOINT HEARING COMMITTEE HAD NOT BEEN USED. MR. MEYNERS STATED
THAT THERE HAD BEEN CONSULTATIONS BETWEEN LOCAL MANAGERS AND LOCAL 1551.
SINCE THERE CLEARLY APPEARS TO HAVE BEEN A MISUNDERSTANDING AS TO
TERMS, I FIND THAT, IN VIEW OF THE FACT THAT THERE HAVE BEEN NO
GRIEVANCES DESIGNATED AS SUCH, AS MR. SMITH STATED (TR. 28), THE
CONSULTATIONS HAD WERE NOT PURSUANT TO SECTION 6.2, STEP 2, BUT WERE
CONSULTATIONS PURSUANT TO OTHER PROVISIONS OF THE AGREEMENT.
14. THE DESIGNATED OFFICER FOR SECTION 15 REVIEW OF AGREEMENTS IS
THE DIRECTOR OF PERSONNEL OF THE DEPARTMENT (TR. 87). ARS HAS NOT BEEN
DELEGATED ANY AUTHORITY TO APPROVE AGREEMENTS UNDER SECTION 15 OF THE
EXECUTIVE ORDER. WHEN THE ADMINISTRATOR OF ARS FORWARDS AN AGREEMENT TO
THE DEPARTMENT HIS OBLIGATION IS TO ASSURE THAT THE AGREEMENT, AS IT IS
SUBMITTED FOR APPROVAL, CONFORMS WITH ARS POLICY, ALTHOUGH IF OBVIOUS
OMISSIONS OR VIOLATIONS OF FPM OR DPM REQUIREMENTS ARE NOTED BY ARS THEY
WOULD SEEK CORRECTION BEFORE SUBMISSION TO THE DEPARTMENT FOR APPROVAL.
THE CLASH OF PROTECTED RIGHTS MAKES THIS A MOST TROUBLESOME CASE. ON
THE ONE HAND, SECTION 15 OF THE EXECUTIVE ORDER MANDATES THAT AGREEMENTS
BE SUBJECT TO THE APPROVAL OF THE AGENCY HEAD (OR HIS DESIGNEE) AND THIS
AUTHORITY IS NOT AFFECTED BY THE FACT THAT AN AGREEMENT HAS BEEN
NEGOTIATED AND SIGNED. LOCAL 174, AMERICAN FEDERATION OF TECHNICAL
ENGINEERS, AFL-CIO AND SUPSHIP, USN, 11TH NAVAL DISTRICT, FLRC NO.
71A-49 (1973). IT IS ALSO CLEAR THAT CONFORMITY TO THE EXECUTIVE ORDER
IS INCLUDED WITHIN THE TERM "APPLICABLE LAWS" OF SECTION 15. LOCAL 174,
SUPRA.
ON THE OTHER HAND, SECTION 11 OF THE EXECUTIVE ORDER REQUIRES GOOD
FAITH WITH A LABOR ORGANIZATION AS REQUIRED BY THE ORDER, ARMY AND AIR
FORCE EXCHANGE SERVICE, KEESLER CONSOLIDATED EXCHANGE, A/SLMR NO. 144
(1972); AND DILATORY TACTICS WHICH DELAY NEGOTIATIONS MAY VIOLATE
SECTION 19(A)(6).
1. PROCEDURES CAUSED UNREASONABLE DELAY.
IN RECOGNITION OF THE MUTUAL OBLIGATION OF AGENCY MANAGEMENT AND THE
UNION TO DELEGATE MEANINGFUL AUTHORITY TO THEIR RESPECTIVE NEGOTIATORS,
A MEMORANDUM OF UNDERSTANDING WAS SIGNED MAY 24, 1972. THEREAFTER, ON
OCTOBER 13, 1972, THE LOCAL PARTIES SIGNED A NEW AGREEMENT. CONTRARY TO
THE REQUIREMENT OF THE DEPARTMENT'S PERSONNEL MANUAL, THE AGREEMENT WAS
NOT SUBMITTED TO THE DIRECTOR OF PERSONNEL OF THE DEPARTMENT WITHIN 30
CALENDAR DAYS AFTER THE DATE OF EXECUTION BY THE PARTIES. INSTEAD, THE
DIRECTOR, PERSONNEL DIVISION, ARS, BY LETTER DATED NOVEMBER 10, 1972,
RETURNED THE AGREEMENT WITH SOME NINETEEN CHANGES AND INFORMED THE
PARTIES THAT "APPROVAL CANNOT BE GRANTED UNTIL THE AGREEMENT IS BROUGHT
INTO CONFORMANCE WITH APPROPRIATE RULES AND REGULATIONS". A REVISED
AGREEMENT WAS SIGNED MAY 25, 1973, AND THE DIRECTOR, PERSONNEL DIVISION,
ARS, TRANSMITTED THE AGREEMENT TO THE DEPARTMENT FOR APPROVAL ON JUNE
11, 1973, WITH THE NOTATION THAT THE SUBMITTED AGREEMENT COMPLIED WITH
DEPARTMENT REQUIREMENTS UNDER 711-4-5D. ON JULY 23, 1973, THE
DEPARTMENT ADVISED THE DIRECTOR, PERSONNEL DIVISION ARS, THAT FOUR
PROVISIONS OF THE AGREEMENT WERE CONTRARY TO APPLICABLE LAWS, AND THE
DIRECTOR, PERSONNEL DIVISION, ARS, TRANSMITTED THE ADVISE TO COMPLAINANT
ON AUGUST 3, 1973.
THE DEPARTMENT'S PERSONNEL MANUAL GOVERNS CONSULTATIONS AND
NEGOTIATION OF AGREEMENTS. ARS HAS NO SEPARATE PERSONNEL MANUAL,
ALTHOUGH IT IMPLEMENTS THE DPM BY ADMINISTRATIVE MEMORANDA (AM).
RESPONDENT STATED THAT REVIEW BY ARS IS GOVERNED BY DPM CHAPTER 11 (SEE,
JOINT EXH. 7). IN ACCORDANCE WITH SECTION 23 OF THE EXECUTIVE ORDER AND
FULLY CONSISTENT WITH THE OBLIGATIONS OF SECTION 11(A) OF THE EXECUTIVE
ORDER, UNITED FEDERATION OF COLLEGE TEACHERS, LOCAL 1460 AND U.S.
MERCHANT MARINE ACADEMY, FLRC NO. 71A-15 (1972), THE DEPARTMENT ISSUED
APPROPRIATE REGULATION WHICH EMPOWERED ITS REPRESENTATIVES TO NEGOTIATE
AND ENTER INTO AGREEMENT ON ALL MATTERS WITHIN THE SCOPE OF NEGOTIATIONS
IN THE BARGAINING UNIT. THUS, DPM, CHAPTER 711, SECTION 4-3, PROVIDES,
IN PART, THAT, "OFFICIALS DESIGNATED TO REPRESENT MANAGEMENT IN
NEGOTIATIONS . . . SHALL BE DELEGATED AUTHORITY TO REACH AGREEMENT ON
ALL MATTERS APPROPRIATE FOR NEGOTIATION AT THAT LEVEL." IN TURN, THE
MEMORANDUM OF UNDERSTANDING CONFIRMED THE DELEGATION OF THIS AUTHORITY
TO THE ACTIVITY'S CHIEF NEGOTIATOR (JOINT EXH. 5).
REJECTION OF THE OCTOBER 13, 1972, AGREEMENT BY THE DIRECTOR,
PERSONNEL DIVISION OF ARS, TO WHOM SECTION 15 APPROVAL AUTHORITY WAS
DELEGATED, NEGATED THE AUTHORITY OF THE CHIEF NEGOTIATOR, CONTRARY TO
THE REQUIREMENT OF SECTION 11(A) OF THE EXECUTIVE ORDER AND DPM SECTION
4-3, AND VIOLATED SECTION 19(A)(6) OF THE EXECUTIVE ORDER. JOINT
TACTICAL COMMUNICATIONS OFFICE (TRI-TAC), DEPARTMENT OF DEFENSE, FORT
MONMOUTH, NEW JERSEY, A/SLMR NO. 396 (1974), WHICH ADOPTED THE FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE IN CASE
NO. 32-3462(CA) (1974).
RESPONDENT'S ASSERTION THAT THE DIRECTOR, PERSONNEL DIVISION, ARS,
PROPERLY DISAPPROVED THE AGREEMENT OF OCTOBER 13, 1972, PURSUANT TO THE
PORTIONS OF DPM 4-5H WHICH PROVIDE THAT,
SUCH AGREEMENTS MUST HAVE BEEN APPROVED BY THE AGENCY . . . " AND
THAT,
"AGENCY HEADS SHALL ASSURE THAT THE NEGOTIATED AGREEMENT IS IN
COMPLIANCE WITH PUBLISHED
POLICIES AND REGULATIONS OF THE AGENCY AND APPROPRIATE SUBORDINATE
LEVELS BEFORE FORWARDING
THE AGREEMENT TO THE DIRECTOR OF PERSONNEL."
MUST BE REJECTED. THE MEMORANDUM OF UNDERSTANDING REQUIRED THAT
LOCAL 1551'S PROPOSALS BE SUBMITTED PRIOR TO THE COMMENCEMENT OF
NEGOTIATIONS; NEGOTIATIONS BEGAN JULY 5, 1972, AND THE AGREEMENT WAS
NOT SIGNED UNTIL OCTOBER 13, 1972. NOT ONLY WAS THE CHIEF NEGOTIATOR'S
AUTHORITY TO REACH AGREEMENT, REQUIRED BY SECTION 11(A) OF THE ORDER AND
IMPLEMENTED DPM 4-3, CONFIRMED BY THE MEMORANDUM OF UNDERSTANDING, BUT
DELEGATION OF SUCH AUTHORITY IMPOSED ON THE AGENCY'S CHIEF NEGOTIATOR
THE OBLIGATION TO ASSURE, ON BEHALF OF THE AGENCY HEAD, THAT THE
NEGOTIATED AGREEMENT WAS IN COMPLIANCE WITH PUBLISHED ARS POLICIES AND
REGULATIONS. IN AGREEMENT WITH THE DECISION IN TRI-TAC, SUPRA, APPROVAL
BY THE DIRECTOR OF ARS MUST BE, IN EFFECT, A MINISTERIAL ACT, SINCE
SECTION 15 APPROVAL HAS, SPECIFICALLY, BEEN DELEGATED TO THE
DEPARTMENT'S DIRECTOR OF PERSONNEL. SUCH RESULT IS REQUIRED BY SECTION
11(A) OF THE EXECUTIVE ORDER AND BY DPM SECTION 4-3. AS THE COUNCIL
STATED IN THE MERCHANT MARINE ACADEMY CASE, SUPRA,
"CLEARLY, THE ORDER REQUIRES THE PARTIES TO PROVIDE REPRESENTATIVES
WHO ARE EMPOWERED TO
NEGOTIATE AND ENTER INTO AGREEMENTS ON ALL MATTERS WITHIN THE SCOPE
OF NEGOTIATIONS IN THE
BARGAINING UNIT."
TO PERMIT THE DIRECTOR, PERSONNEL DIVISION, ARS, TO DISAPPROVE AN
AGREEMENT ENTERED INTO BY THE DULY AUTHORIZED CHIEF NEGOTIATOR OF THE
ACTIVITY WOULD MAKE A MOCKERY OF THE OBLIGATION. INDEED, THE
FRUSTRATION OF THE BARGAINING PROCESS WAS FURTHER CLEARLY DEMONSTRATED
BY THE FACTS THAT: A) RESOLUTION OF THE MATTERS RAISED BY THE DIRECTOR,
PERSONNEL DIVISION, ARS, IN HIS LETTER OF NOVEMBER 10, 1972, MOVED FROM
THE LOCAL LEVEL TO THE NATIONAL HEADQUARTER LEVELS OF ARS AND NFFE AND,
EVENTUALLY, BACK TO THE LOCAL PARTIES FOR ADOPTION IN APRIL, 1973; B)
NOT UNTIL AUGUST 3, 1973, WAS NFFE ADVISED BY THE DEPARTMENT THAT FOUR
PROVISIONS, EACH OF WHICH WAS PART OF THE INITIAL AGREEMENT OF OCTOBER
13, 1972, AND THE REVISED AGREEMENT OF MAY 25, 1972, WERE CONTRARY TO
APPLICABLE PROVISIONS OF LAW.
NOT ONLY DID THE DISAPPROVAL OF THE AGREEMENT BY THE DIRECTOR,
PERSONNEL DIVISION, ARS, DIRECTLY FRUSTRATE THE BARGAINING PROCESS, BUT
THE FAILURE OF ARS TO SUBMIT THE AGREEMENT OF OCTOBER 13, 1972, TO THE
DIRECTOR OF PERSONNEL WITHIN THIRTY DAYS AFTER THE DATE OF EXECUTION BY
THE PARTIES, AS REQUIRED BY DPM 4-5H, UNREASONABLY DELAYED BARGAINING
AND, ITSELF, CONSTITUTED A VIOLATION OF SECTION 19(A)(6) OF THE
EXECUTIVE ORDER.
2. SECTION 15 APPROVAL.
PURSUANT TO SECTION 2 OF THE EXECUTIVE ORDER, THE DEPARTMENT IS THE
AGENCY FOR THE PURPOSES OF SECTION 15 APPROVAL; AND DPM SECTION 4-5H
EXPRESSLY PROVIDES THAT THE DIRECTOR OF PERSONNEL, OR HIS DESIGNEE,
SHALL REVIEW AND APPROVE AGREEMENTS IN ACCORDANCE WITH SECTION 15 OF THE
EXECUTIVE ORDER. AN AGREEMENT WITH A LABOR ORGANIZATION IS SUBJECT TO
THE APPROVAL OF THE HEAD OF THE AGENCY, OR BY HIS DESIGNEE,
NOTWITHSTANDING THE DELAY IN SUBMISSION, WHICH HAS BEEN FOUND TO HAVE
BEEN IN VIOLATION OF 19(A)(6) OF THE EXECUTIVE ORDER; AND
NOTWITHSTANDING EXECUTION OF THE AGREEMENT. LOCAL 1741, AMERICAN
FEDERATION OF TECHNICAL ENGINEERS, AFL-CIO AND SUPSHIPS, USN, 11TH NAVAL
DISTRICT, SAN DIEGO, CALIFORNIA, FLRC NO. 71A-49 (1973).
THE DEPARTMENT APPROVED THE REVISED AGREEMENT ON MAY 25, 1973 EXCEPT
FOR THE FOUR PROVISIONS IT FOUND CONTRARY TO "APPLICABLE LAWS". AS TO
TWO OF THE PROVISIONS NFFE HAS ACCEPTED THE DEPARTMENT'S DETERMINATION
AND HAS CHANGED, OR AGREED TO CHANGE, THE PROVISIONS AS INDICATED BY THE
DEPARTMENT. AS TO THE REMAINING TWO PROVISIONS (SECTIONS 4.2 AND 5.2,
STEP 2) THE DEPARTMENT HAS DETERMINED THAT SAID PROVISIONS ARE CONTRARY
TO LAW AND THEREFORE, NOT NEGOTIABLE. SECTION 15 SPECIFICALLY
AUTHORIZES DISAPPROVAL OF AGREEMENTS CONTRARY TO "APPLICABLE LAWS",
INCLUDING THE EXECUTIVE ORDER, LOCAL 174, AFTE, SUPRA, AND SECTION 11(C)
PROVIDES THAT,
"(C) IF, IN CONNECTION WITH NEGOTIATION, AN ISSUE DEVELOPES AS TO
WHETHER A PROPOSAL IS
CONTRARY TO LAW . . . OR THIS ORDER AND THEREFORE NOT NEGOTIABLE, IT
SHALL BE RESOLVED AS
FOLLOW:;
"(4) A LABOR ORGANIZATION MAY APPEAL TO THE COUNCIL FOR A DECISION
WHEN -
"(I) IT DISAGREES WITH AN AGENCY HEAD'S DETERMINATION . . . "
(EXECUTIVE ORDER 11491, AS AMENDED)
THE PRESIDENT OF NFFE REQUESTED THE DEPARTMENT'S DETERMINATION ON
NEGOTIABILITY AND THE DETERMINATION WAS ISSUED BY THE DEPARTMENT
SEPTEMBER 14, 1973. WHETHER OR NOT NFFE APPEALED THE DEPARTMENT'S
DETERMINATION TO THE COUNCIL, SECTION 11(C) OF THE EXECUTIVE ORDER
LODGES EXCLUSIVE JURISDICTION IN THE COUNCIL TO DETERMINE DISPUTES
CONCERNING NEGOTIABILITY, AT LEAST IN THE ABSENCE OF A BASELESS CLAIM
INTERPOSED SOLELY FOR DELAY WHICH I EXPRESSLY FIND NOT TO BE TRUE HERE,
OR WHEN OTHER SUITABLE ADJUDICATORY PROCEDURES ARE PROVIDED UNDER THE
ORDER FOR RESOLUTION OF THE MATTER, FLRC NO. 71P-4 (1971), WHICH IS ALSO
NOT TRUE IN THIS CASE. ACCORDINGLY, AS THE COUNCIL HAS EXCLUSIVE
JURISDICTION TO DETERMINE DISPUTES INVOLVING AN AGENCY HEAD'S
DETERMINATION AS TO NEGOTIABILITY, THE ISSUE MAY NOT PROPERLY BE
DETERMINED UNDER THE COMPLAINT PROCEDURES OF THE ORDER.
IT MAY BE ARGUED THAT "NEGOTIABILITY" PERTAINS ONLY TO THE POINT THAT
AN AGREEMENT BECOMES EFFECTIVE; THAT WHEN THE AGREEMENT OF MAY 25,
1973, BECAME EFFECTIVE ON JULY 10, 1973 (PURSUANT TO DPM 4-5H, AND THE
FAILURE OF THE DIRECTOR OF PERSONNEL TO ACT WITHIN 45 DAYS AFTER
EXECUTION OF THE AGREEMENT BY THE PARTIES), THE ONLY BASIS ON WHICH ANY
PORTION OF THE FULLY EFFECTIVE CONTRACT COULD BE RENDERED INOPERATIVE
WOULD BE THAT SUCH PROVISION IS CONTRARY TO LAW; AND THAT JURISDICTION
EXISTS UNDER THE COMPLAINT PROCEDURES TO DETERMINE WHETHER THE
PROVISIONS IN QUESTION ARE CONTRARY TO LAW. SUCH ARGUMENT IGNORES,
HOWEVER, THE RESERVATION OF JURISDICTION TO THE COUNCIL TO DETERMINE
APPEALS ON NEGOTIABILITY ISSUES IN SECTIONS 4(C) AND 11(C) OF THE ORDER;
THE RETENTION IN THE AMENDED ORDER OF AGENCY APPROVAL AS A NECESSARY
REQUIREMENT; AND THE LIMITATION INCORPORATED INTO SECTION 15 THAT
DISAPPROVAL BE BASED SOLELY ON CONFORMITY WITH LAWS, EXISTING PUBLISHED
AGENCY POLICIES AND REGULATIONS AND WITH REGULATIONS OF OTHER
APPROPRIATE AUTHORITIES. THE PROVISION OF DPM 4-5H IS INTENDED TO
INSURE THAT ANY EXECUTED AGREEMENT BE FULLY EFFECTIVE ON THE 46TH DAY
FOLLOWING EXECUTION BY THE PARTIES SUBJECT ONLY TO POST AUDIT IN THE
EVENT ANY PORTION SHOULD BE FOUND CONTRARY TO LAW, ETC. TO CONCLUDE
THAT DPM 4-5H WITHDRAWS THE RIGHT OF AGENCY REVIEW UNDER SECTION 15 WHEN
AN AGREEMENT HAS BECOME EFFECTIVE WOULD NOT ONLY BE CONTRARY TO THE
INTENT AND PURPOSE OF AMENDED SECTION 15 AND CREATE JURISDICTION TO
DETERMINE NEGOTIABILITY DISPUTES UNDER THE COMPLAINT PROCEDURES WHICH
THE EXECUTIVE ORDER CAREFULLY AND EXPRESSLY RESERVED TO THE COUNCIL, BUT
WOULD COMPEL THE ABANDONMENT OF PROVISIONS AS CONTAINED IN DPM 4-5H.
REQUIRED DEFERRAL OF AN OPERATIVE AGREEMENT PENDING AGENCY HEAD APPROVAL
WOULD BE INIMICAL TO THE INTENT AND PURPOSE OF THE ORDER AND CONTRARY TO
THE INTERESTS OF EMPLOYEES AND LABOR ORGANIZATIONS IS REJECTED UNDER THE
CIRCUMSTANCES OF THIS CASE, INCLUDING THE FOLLOWING: A) THE DEPARTMENT
ACTED WITH REASONABLE PROMPTITUDE; B) THERE IS NO INDICATION THAT THE
PROVISIONS, FOUND TO BE CONTRARY TO LAW, DURING THE SHORT PERIOD FROM
JULY 10, 1973 TO JULY 23, 1973, WHEN, AS PART OF THE AGREEMENT THEY WERE
TECHNICALLY IN EFFECT, HAD BEEN EMPLOYED OR RELIED UPON IN ANY MANNER TO
THE POSSIBLE PREJUDICE OF ANY EMPLOYEE; AND C) THE DETERMINATION OF
NEGOTIABILITY, WHETHER CORRECT OR INCORRECT, WAS NOT WHOLLY WITHOUT
MERIT AND WAS NOT INTERPOSED FOR DELAY OR TO THWART THE COLLECTIVE
BARGAINING PROCESS.
ACCORDINGLY, THE DEPARTMENT PROPERLY EXERCISED SECTION 15 REVIEW OF
THE AGREEMENT OF MAY 25, 1973, AND ITS DETERMINATION ON NEGOTIABILITY IS
NOT SUBJECT TO REVIEW UNDER THE COMPLAINT PROCEDURES OF THE ORDER.
3. TIMELINESS
SECTION 203.2(2) OF THE REGULATIONS PROVIDES THAT THE CHARGE MUST BE
FILED WITHIN SIX MONTHS OF THE ALLEGED UNFAIR LABOR PRACTICE. THE
INITIAL UNFAIR LABOR PRACTICE, I.E., THE ACTION OF DIRECTOR, PERSONNEL
DIVISION, ARS, IN VIOLATION OF 19(A)(6), OCCURRED IN NOVEMBER, 1972, AND
THE CHARGE WAS NOT FILED UNTIL OCTOBER 15, 1973; HOWEVER, THE VIOLATION
WAS A CONTINUING VIOLATION; THE DIRECTOR, PERSONNEL DIVISION, ARS,
CONTINUED TO ASSERT THE AUTHORITY TO REVIEW SIGNED AGREEMENTS AT ALL
TIMES, INCLUDING JULY, 1973; AND NO EXECUTED AGREEMENT WAS SUBMITTED TO
THE DIRECTOR OF PERSONNEL UNTIL JUNE 11, 1973. ACCORDINGLY, THE CHARGE
WAS TIMELY FILED.
HAVING FOUND THAT RESPONDENT ACTIVITY, AGRICULTURAL RESEARCH SERVICE,
ENGAGED IN CONDUCT WHICH WAS IN VIOLATION OF SECTION 19(A)(6) OF THE
EXECUTIVE ORDER BY DISAPPROVING AN AGREEMENT ENTERED INTO BY ITS DULY
AUTHORIZED CHIEF NEGOTIATOR AND BY FAILING AND REFUSING TO SUBMIT SIGNED
AGREEMENTS TO THE DIRECTOR OF PERSONNEL OF THE DEPARTMENT OF AGRICULTURE
FOR SECTION 15 APPROVAL WITHIN 30 DAYS FROM THE DATE OF EXECUTION BY THE
PARTIES AS REQUIRED BY DEPARTMENT REGULATION, I RECOMMEND THAT THE
ASSISTANT SECRETARY ADOPT THE FOLLOWING ORDER.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25 OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT, RELATIONS HEREBY ORDERS THAT AGRICULTURAL RESEARCH
SERVICE, UNITED STATES DEPARTMENT OF AGRICULTURE, SHALL:
(1) CEASE AND DESIST FROM:
(A) WITHHOLDING APPROVAL OF AGREEMENTS ENTERED INTO BY ITS DULY
AUTHORIZED NEGOTIATORS;
(B) FAILING AND REFUSING TO SUBMIT AGREEMENTS TO THE DIRECTOR OF
PERSONNEL, OR HIS
DESIGNEE, WITHIN 30 DAYS AFTER THE DATE OF EXECUTION BY THE PARTIES
AS REQUIRED BY DEPARTMENT
REGULATIONS; AND
(C) IN ANY LIKE OR RELATED MANNER REFUSING TO CONSULT, CONFER, OR
NEGOTIATE WITH LOCAL
1551, NFFE, OR OTHER DULY CERTIFIED OR RECOGNIZED LABOR ORGANIZATION
AS REQUIRED BY EXECUTIVE
ORDER 11491, AS AMENDED.
(2) TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSE AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) POST AT ITS NORTHERN RESEARCH CENTER, FACILITY, PEORIA, ILLINOIS,
COPIES OF THE
ATTACHED NOTICE MARKED "APPENDIX B" ON FORMS TO BE FURNISHED BY THE
ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH FORMS,
THEY SHALL BE SIGNED BY THE
DIRECTOR OF THE NORTHERN RESEARCH CENTER AND SHALL BE POSTED AND
MAINTAINED BY HIM FOR SIXTY
(60) CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING
ALL BULLETIN BOARDS AND
OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
DIRECTOR SHALL TAKE
REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
(B) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN
WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS
HAVE BEEN TAKEN TO COMPLY
HEREIN.
DATED: NOVEMBER 21, 1974
WASHINGTON, D.C.
THE TRANSCRIPT OF HEARING IN CASE NO. 22-5144(CA) IS HEREBY CORRECTED
AS FOLLOWS:
1. THE NAME OF THE ADMINISTRATIVE LAW JUDGE, WHICH APPEARS
THROUGHOUT THE TRANSCRIPT AS: "WILLIAM B. DEVANEY; IS HEREBY CORRECTED
TO READ "WILLIAM B. DEVANEY".
2. THE FOLLOWING CORRECTIONS, AS NOTED BY THE PARTIES IN THEIR
RESPECTIVE MOTIONS, ARE HEREBY MADE ON THE PAGES AND LINES SHOWN BELOW:
PAGE . . . LINE . . . CORRECTED WORDING, SPELLING, ETC.
5 . . . 7 . . . A DEPARTMENT REGULATION NUMBER 711-4, 5(I) IS WORDED
IN SUCH
12 . . . 22 . . . AND IT DOES REFER TO THE JOINT EXHIBITS WHICH I
WILL INTRODUCE
14 . . . 9 . . . JOINT EXHIBIT NO. 2, THIS LETTER OF EXCLUSIVE
RECOGNITION
25 . . . 5 . . . Q DID YOU HAVE, AS FIRST VICE-PRESIDENT, KNOWLEDGE
OF ALL
36 . . . 15 . . . MR. COOK: FIRST, THE GRIEVANCE IS TAKEN UP
. . . 20 . . . MR. COOK: I AM TRYING TO SAY THEY CAN'T
44 . . . 17 . . . IF I WAIT UNTIL THE NOON RECESS IT MIGHT, IF THERE
IS ANY
46 . . . 10 . . . MR. FINNEGAN: CHIEF, LABOR RELATIONS AND SAFETY
85 . . . 9 . . . AGENCY, IN THIS PARTICULAR CASE REFERRING TO THE
SUBORDINATE
. . . 17 . . . IS RESPONSIBLE FOR ASSURING THAT THE AGREEMENT
CONFORMS TO
86 . . . 9 . . . IN OTHER WORDS, THE EXECUTIVE ORDER REQUIRES
92 . . . 5 . . . Q ISN'T IT, IN FACT, THE CASE THAT THERE ARE 19
SEPARATE
93 . . . 10 . . . FEDERAL SECTOR. THE FPM, IN THIS PARTICULAR CASE,
IN THE
. . . 18 . . . TIONS, SO, FOR EXAMPLE, IF THERE WERE NO REVIEW AT THE
95 . . . 24 . . . AND AMENDMENTS OF AGREEMENTS SHALL BE EFFECTIVE ON
THE DATE OF APPROVAL
106 . . . 22 . . . Q OKAY, TO BE MORE SPECIFIC, IF A CONFLICT
OCCURRED
121 . . . 4 . . . MR. EDMINSTER, THE ADMINISTRATOR.
. . . 10 . . . HAD APPROVED; IS THAT CORRECT?
128 . . . 21 . . . THE EXECUTIVE ORDER, DEPARTMENT REGULATIONS, FPM,
COMPTROLLER GENERAL
133 . . . 1 . . . IN AN UNFAIR LABOR PRACTICE HEARING.
134 . . . 22 . . . BASED ON THAT LANGUAGE ALONE, IT DOESN'T FIT IN
WITH THE
135 . . . 14 . . . THIRD SENTENCE. "(QUOTE) HOWEVER, ANY EMPLOYEE OR
GROUP OF EMPLOYEES
. . . 20 . . . THE ADJUSTMENT." (UNQUOTE) INTERPRET THE WORD "JOINT"
BECAUSE IT IS
137 . . . 11 . . . WAS IN ALL 26 AGENCY'S REGULATIONS, ABOVE AND
BEYOND THE
AGRICULTURAL RESEARCH SERVICE WILL NOT WITHHOLD APPROVAL OF
AGREEMENTS EXECUTED BY ITS DULY AUTHORIZED NEGOTIATORS.
AGRICULTURAL RESEARCH SERVICE WILL SUBMIT AGREEMENTS TO THE DIRECTOR
OF PERSONNEL, OR HIS DESIGNEE, WITHIN 30 DAYS AFTER THE DATE OF
EXECUTION BY THE PARTIES, AS REQUIRED BY DEPARTMENT REGULATIONS.
AGRICULTURAL RESEARCH SERVICE WILL NOT REFUSE TO CONSULT, CONFER, OR
NEGOTIATE WITH LOCAL 1551, NFFE, OR OTHER DULY CERTIFIED OR RECOGNIZED
LABOR ORGANIZATION AS REQUIRED BY EXECUTIVE ORDER 11491, AS AMENDED.
AGRICULTURE
DATED: . . . BY: . . .
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 ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, ROOM 14120, GATEWAY BUILDING, 3535 MARKET
STREET, PHILADELPHIA, PENNSYLVANIA 19104.
/1/ THE PARTIES HAVE FILED WITH THEIR BRIEFS, MOTIONS FOR CORRECTION
OF TRANSCRIPT. SAID MOTIONS ARE HEREBY GRANTED AND THE REQUESTED
CORRECTIONS ARE SET FORTH IN APPENDIX A HERETO. IN ADDITION, THE
SPELLING OF THE NAME OF THE UNDERSIGNED IS ALSO HEREBY CORRECTED AS SET
FORTH IN APPENDIX A.
/2/ THE ARS ACTIVITY HAS HAD A VARIETY OF NAMES, I.E. NORTHERN
UTILIZATION RESEARCH AND DEVELOPMENT DIVISION; NORTHERN MARKETING
NUTRITION RESEARCH DIVISION; NORTHERN REGIONAL RESEARCH LABORATORY;
NORTHERN RESEARCH LABORATORY AND NORTHERN REGIONAL RESEARCH CENTER. IT
WAS AGREED THAT, NOTWITHSTANDING THE CHANGE IN NAME, THE ORGANIZATION AS
MATERIAL HEREIN HAS REMAINED THE SAME. (TR. 52).
5 A/SLMR 518; P. 349; CASE NO. 22-5129(CA); MAY 30, 1975.
DEPARTMENT OF THE ARMY,
ABERDEEN PROVING GROUND
A/SLMR NO. 518
ON JULY 11, 1974, THE ASSISTANT SECRETARY ISSUED AN ORDER REFERRING
MAJOR POLICY ISSUES TO THE FEDERAL LABOR RELATIONS COUNCIL IN A/SLMR NO.
412 IN WHICH HE DETERMINED THAT A REFUSAL TO COMPLY WITH AN AWARD ISSUED
BY AN ARBITRATOR UNDER CONDITIONS AGREED TO BY THE PARTIES WOULD
CONSTITUTE A UNILATERAL ACTION WITH RESPECT TO NEGOTIATED TERMS AND
CONDITIONS OF EMPLOYMENT, WOULD THWART THE ARBITRATION PROCESS, WOULD BE
INCONSISTENT WITH THE PURPOSES AND POLICIES OF THE ORDER AND, THEREFORE,
WOULD BE VIOLATIVE OF SECTION 19(A)(1) AND (6). HOWEVER, IT WAS NOTED
THAT THE RESPONDENT'S DEFENSE IN THE MATTER - I.E., THAT IT WAS UNABLE
TO MAKE PAYMENT OF THE AMOUNT INVOLVED BECAUSE NO APPROPRIATION EXISTED
FOR PAYMENT AND A SPECIAL AUTHORIZATION FROM THE COMPTROLLER GENERAL OF
THE UNITED STATES WAS NEEDED IN ORDER TO IMPLEMENT THE AWARD - RAISED
MAJOR POLICY ISSUES WHICH REQUIRED REFERRAL TO THE FEDERAL LABOR
RELATIONS COUNCIL.
SUBSEQUENTLY, THE RESPONDENT SOUGHT AN ADVANCE DECISION FROM THE
COMPTROLLER GENERAL AS TO THE APPROPRIATE FUND CITATION, IF ANY, FROM
WHICH TO MAKE PAYMENT TO THE COMPLAINANT. ON OCTOBER 1, 1974, THE
COMPTROLLER GENERAL ISSUED A DECISION HOLDING THAT THERE WAS NO
AUTHORITY TO IMPLEMENT THE ARBITRATION AWARD INVOLVED WHICH ORDERED THE
RESPONDENT TO PAY THE SUM OF $80.33. THEREAFTER, THE COMPTROLLER
GENERAL REAFFIRMED HIS DECISION ON APRIL 30, 1975, BY DENYING THE
COMPLAINANT'S REQUEST FOR RECONSIDERATION.
ON MARCH 20, 1975, THE COUNCIL ISSUED ITS DECISION FINDING THAT:
. . . THE ASSISTANT SECRETARY DOES HAVE THE AUTHORITY UNDER SECTIONS
6(A)(4) AND 19 OF THE
ORDER . . . TO DECIDE UNFAIR LABOR PRACTICE COMPLAINTS WHICH ALLEGE
THAT A PARTY HAS REFUSED
TO COMPLY WITH AN ARBITRATION AWARD ISSUED UNDER A GRIEVANCE
PROCEDURE CONTAINED IN AN
AGREEMENT NEGOTIATED UNDER THE ORDER. AS TO WHETHER A PARTY MAY RELY
UPON A DEFENSE THAT IT
CANNOT COMPLY WITH AN ARBITRATION AWARD UNTIL IT MAY BE ASSURED OF
THE LEGALITY OF THE AWARD
(E.G., UNTIL IT RECEIVES APPROPRIATE AUTHORIZATION FROM THE
COMPTROLLER GENERAL), SUCH A
DEFENSE MAY NOT LIE TO THE UNFAIR LABOR PRACTICE PROCEEDING . . .
THE COUNCIL FURTHER STATED THAT:
A PARTY'S REFUSAL TO COMPLY WITH AN ARBITRATION AWARD ISSUED UNDER A
NEGOTIATED GRIEVANCE
PROCEDURE WHERE THE PARTY HAS FAILED TO FILE EXCEPTIONS WITH THE
COUNCIL IS A FAILURE TO
COMPLY WITH ITS OBLIGATIONS UNDER THE ORDER AND MAY BE DEEMED AN
UNFAIR LABOR PRACTICE. AND
SUCH PARTY MAY NOT RELIEVE HIMSELF OF SUCH OBLIGATIONS UNDER THE
ORDER BY REQUESTING AN
OPINION FROM ANOTHER AGENCY SUCH AS THE UNITED STATES GENERAL
ACCOUNTING OFFICE. HENCE, SUCH
ACTION IS NOT A DEFENSE TO AN UNFAIR LABOR PRACTICE CHARGED FOR
FAILURE TO IMPLEMENT AN
ARBITRATION AWARD ISSUED UNDER THE NEGOTIATED GRIEVANCE PROCEDURE IN
AN AGREEMENT, SUCH AS
THAT IN THIS CASE.
BASED ON THE RATIONALE CONTAINED IN THE COUNCIL'S DECISION, AS WELL
AS IN A/SLMR NO. 412, THE ASSISTANT SECRETARY FOUND THAT THE
RESPONDENT'S FAILURE TO ABIDE BY AN ARBITRATION AWARD, ISSUED UNDER A
NEGOTIATED GRIEVANCE PROCEDURE, TO WHICH NO EXCEPTIONS WERE FILED WITH
THE COUNCIL, VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER. UNDER
THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY ORDERED THAT THE RESPONDENT
CEASE AND DESIST FROM THE CONDUCT FOUND VIOLATIVE OF THE ORDER AND THAT
IT TAKE CERTAIN AFFIRMATIVE ACTIONS CONSISTENT WITH HIS DECISION. IN
VIEW OF THE DECISION OF THE COMPTROLLER GENERAL, THE ASSISTANT SECRETARY
DID NOT REQUIRE THE RESPONDENT TO IMPLEMENT THE ARBITRATION AWARD
INVOLVED BY MAKING THE PAYMENT TO THE COMPLAINANT ORDERED BY THE
ARBITRATOR.
DEPARTMENT OF THE ARMY,
ABERDEEN PROVING GROUND
AND
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, LOCAL LODGE 2424
ON JULY 11, 1974, I ISSUED AN ORDER REFERRING MAJOR POLICY ISSUES TO
THE FEDERAL LABOR RELATIONS COUNCIL. /1/ IN CONNECTION WITH THAT
DETERMINATION, I CONCLUDED THAT A REFUSAL TO COMPLY WITH AN AWARD ISSUED
BY AN ARBITRATOR UNDER CONDITIONS AGREED TO BY THE PARTIES WOULD
CONSTITUTE A UNILATERAL ACTION WITH RESPECT TO NEGOTIATED TERMS AND
CONDITIONS OF EMPLOYMENT, WOULD THWART THE ARBITRATION PROCESS, WOULD BE
INCONSISTENT WITH THE PURPOSES AND POLICIES OF THE ORDER, AND,
THEREFORE, WOULD BE VIOLATIVE OF SECTION 19(A)(1) AND (6). HOWEVER, IT
WAS NOTED THAT THE RESPONDENT'S DEFENSE IN THIS MATTER - I.E., THAT IT
WAS UNABLE TO MAKE PAYMENT OF THE AMOUNT INVOLVED BECAUSE NO
APPROPRIATION EXISTED FOR PAYMENT AND A SPECIAL AUTHORIZATION FROM THE
COMPTROLLER GENERAL OF THE UNITED STATES WAS NEEDED IN ORDER TO
IMPLEMENT THE AWARD - RAISED THE FOLLOWING MAJOR POLICY ISSUES WHICH
REQUIRED REFERRAL TO THE FEDERAL LABOR RELATIONS COUNCIL: (1) WHETHER
THE ASSISTANT SECRETARY HAS JURISDICTION TO ENFORCE UNDER SECTION 19 OF
THE ORDER A BINDING ARBITRATION AWARD IN WHICH NO EXCEPTIONS WERE FILED
WITH THE FEDERAL LABOR RELATIONS COUNCIL, AND (2) IF THE ASSISTANT
SECRETARY HAS JURISDICTION TO ENFORCE A BINDING ARBITRATION AWARD, IS A
DEFENSE THAT A PARTY CANNOT COMPLY WITH AN ARBITRATION AWARD UNTIL IT
RECEIVES AUTHORIZATION FROM THE COMPTROLLER GENERAL TO MAKE PAYMENT
DISPOSITIVE OF THE MATTER?
ON AUGUST 17, 1973, THE RESPONDENT SOUGHT AN ADVANCE DECISION FROM
THE COMPTROLLER GENERAL AS TO THE APPROPRIATE FUND CITATION, IF ANY,
FROM WHICH TO MAKE PAYMENT TO THE COMPLAINANT. THE SUBSEQUENT DECISION
OF THE COMPTROLLER GENERAL, ISSUED ON OCTOBER 1, 1974, HELD THAT THERE
WAS NO AUTHORITY TO IMPLEMENT THE ARBITRATION AWARD INVOLVED WHICH
ORDERED THE RESPONDENT TO PAY THE SUM OF $80.33 TO THE COMPLAINANT. /2/
THEREAFTER, THE COMPLAINANT REQUESTED RECONSIDERATION OF THE DECISION OF
THE COMPTROLLER GENERAL. ON APRIL 30, 1975, THE COMPTROLLER GENERAL
REAFFIRMED HIS PRIOR DECISION.
ON MARCH 20, 1975, THE FEDERAL LABOR RELATIONS COUNCIL ISSUED ITS
DECISION ON REFERRAL OF MAJOR POLICY ISSUES FROM ASSISTANT SECRETARY
WHEREIN IT FOUND, IN PERTINENT PART, THAT:
. . . THE ASSISTANT SECRETARY DOES HAVE THE AUTHORITY UNDER SECTIONS
6(A)(4) AND 19 OF THE
ORDER . . . TO DECIDE UNFAIR LABOR PRACTICE COMPLAINTS WHICH ALLEGE
THAT A PARTY HAS REFUSED
TO COMPLY WITH AN ARBITRATION AWARD ISSUED UNDER A GRIEVANCE
PROCEDURE CONTAINED IN AN
AGREEMENT NEGOTIATED UNDER THE ORDER. AS TO WHETHER A PARTY MAY RELY
UPON A DEFENSE THAT IT
CANNOT COMPLY WITH AN ARBITRATION AWARD UNTIL IT MAY BE ASSURED OF
THE LEGALITY OF THE AWARD
(E.G., UNTIL IT RECEIVES APPROPRIATE AUTHORIZATION FROM THE
COMPTROLLER GENERAL), SUCH A
DEFENSE MAY NOT LIE TO THE UNFAIR LABOR PRACTICE PROCEEDING . . .
THE COUNCIL FURTHER STATED THAT:
A PARTY'S REFUSAL TO COMPLY WITH AN ARBITRATION AWARD ISSUED UNDER A
NEGOTIATED GRIEVANCE
PROCEDURE WHERE THE PARTY HAS FAILED TO FILE EXCEPTIONS WITH THE
COUNCIL IS A FAILURE TO
COMPLY WITH ITS OBLIGATIONS UNDER THE ORDER AND MAY BE DEEMED AN
UNFAIR LABOR PRACTICE. AND
SUCH PARTY MAY NOT RELIEVE HIMSELF OF SUCH OBLIGATIONS UNDER THE
ORDER BY REQUESTING AN
OPINION FROM ANOTHER AGENCY SUCH AS THE UNITED STATES GENERAL
ACCOUNTING OFFICE. HENCE, SUCH
ACTION IS NOT A DEFENSE TO AN UNFAIR LABOR PRACTICE CHARGED FOR
FAILURE TO IMPLEMENT AN
ARBITRATION AWARD ISSUED UNDER THE NEGOTIATED GRIEVANCE PROCEDURE IN
AN AGREEMENT, SUCH AS
THAT IN THIS CASE. /3/
BASED ON THE RATIONAL CONTAINED IN THE COUNCIL'S DECISION, AS WELL AS
IN A/SLMR NO. 412, I FIND THAT THE RESPONDENT'S FAILURE TO ABIDE BY THE
ARBITRATION AWARD INVOLVED HEREIN, ISSUED UNDER A NEGOTIATED GRIEVANCE
PROCEDURE, TO WHICH NO EXCEPTIONS WERE FILED WITH THE COUNCIL, VIOLATED
SECTION 19(A)(1) AND (6) OF THE ORDER.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE DEPARTMENT OF THE
ARMY, ABERDEEN PROVING GROUND, ABERDEEN, MARYLAND, SHALL:
1. CEASE AND DESIST FROM:
(A) FAILURE TO ABIDE BY ARBITRATION AWARDS ISSUED UNDER A NEGOTIATED
GRIEVANCE PROCEDURE CONTAINED IN AN AGREEMENT WITH THE INTERNATIONAL
ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL LODGE 2424, OR IN
AN AGREEMENT WITH ANY OTHER EXCLUSIVE REPRESENTATIVE, WHEN IT HAS FAILED
TO FILE EXCEPTIONS WITH THE FEDERAL LABOR RELATIONS COUNCIL.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) IN THE FUTURE, EITHER FILE EXCEPTIONS WITH THE FEDERAL LABOR
RELATIONS COUNCIL OR ABIDE BY ARBITRATION AWARDS ISSUED UNDER A
NEGOTIATED GRIEVANCE PROCEDURE CONTAINED IN AN AGREEMENT WITH THE
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL
LODGE 2424, OR IN AN AGREEMENT WITH ANY OTHER EXCLUSIVE REPRESENTATIVE.
(B) POST AT ITS FACILITY AT THE DEPARTMENT OF THE ARMY, ABERDEEN
PROVING GROUND, ABERDEEN, MARYLAND, COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL
BE SIGNED BY THE COMMANDING OFFICER OF THE ABERDEEN PROVING GROUND 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.
(C) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THE
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
MAY 30, 1975
/1/ SEE A/SLMR NO. 412
/2/ DECISION OF THE COMPTROLLER OF THE UNITED STATES, FILE NO.
B-180095.
/3/ THE COUNCIL NOTED, HOWEVER, THAT WHEN THE ASSISTANT SECRETARY
FINDS THAT AN AGENCY HAS COMMITTED AN UNFAIR LABOR PRACTICE BY ITS
FAILURE TO ABIDE BY AN ARBITRATION AWARD TO WHICH NO EXCEPTIONS WERE
FILED WITH THE COUNCIL, THE ASSISTANT SECRETARY MAY NOT, AS PART OF HIS
REMEDIAL ORDER, DIRECT AN AGENCY TO COMPLY WITH AN AWARD WHICH THE
COMPTROLLER GENERAL HAS DETERMINED TO BE CONTRARY TO LAW.
WE WILL EITHER FILE EXCEPTIONS WITH THE FEDERAL LABOR RELATIONS
COUNCIL OR ABIDE BY ARBITRATION AWARDS ISSUED UNDER A NEGOTIATED
GRIEVANCE PROCEDURE CONTAINED IN AN AGREEMENT WITH THE INTERNATIONAL
ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL LODGE 2424, OR IN
AN AGREEMENT WITH ANY OTHER EXCLUSIVE REPRESENTATIVE.
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
EXECUTIVE ORDER.
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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR, WHOSE ADDRESS IS: ROOM 14120 GATEWAY BUILDING, 3535 MARKET
STREET, PHILADELPHIA, PENNSYLVANIA 19104.
DEPARTMENT OF THE ARMY,
ABERDEEN PROVING GROUND
AND
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, LOCAL LODGE 2424
IN HIS CONSIDERATION OF THIS CASE THE ASSISTANT SECRETARY FOUND THAT
THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL
LODGE 2424 (THE UNION) FILED AN UNFAIR LABOR PRACTICE COMPLAINT CHARGING
THE DEPARTMENT OF THE ARMY, ABERDEEN PROVING GROUND (THE AGENCY) WITH A
VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER BY REFUSING TO SEEK
REVIEW BY THE FEDERAL LABOR RELATIONS COUNCIL OR TO COMPLY WITH A
BINDING ARBITRATION AWARD ISSUED PURSUANT TO THE TERMS OF THE PARTIES'
NEGOTIATED AGREEMENT. THE ASSISTANT SECRETARY FOUND, BASED UPON THE
UNDISPUTED FACTS AS STIPULATED BY THE PARTIES, THAT THE COLLECTIVE
BARGAINING AGREEMENT BETWEEN THE UNION AND THE AGENCY PROVIDED FOR THE
DEDUCTION BY THE AGENCY OF UNION DUES FROM THE PAY OF ELIGIBLE EMPLOYEES
WITHIN THE UNIT WHO VOLUNTARILY AUTHORIZED SUCH DEDUCTIONS, AND THE
TRANSMITTAL TO THE UNION OF AN AMOUNT EQUAL TO THE TOTAL OF ALL SUCH
DEDUCTIONS (LESS 2 CENTS FOR EACH INDIVIDUAL DEDUCTION) NOT LATER THAN 3
WORKDAYS AFTER EACH PAYDAY. WHEN A UNIT EMPLOYEE WHO HAD FILED SUCH A
DUES WITHHOLDING AUTHORIZATION WAS PROMOTED TO A JOB OUTSIDE THE UNIT,
THE AGENCY, CONTRARY TO THE TERMS OF THE AGREEMENT, FAILED TO TERMINATE
THE AUTHORIZATION. INSTEAD THE AGENCY CONTINUED TO DEDUCT AND REMIT
SUCH DUES TO THE UNION UNTIL OVER A YEAR LATER WHEN THE AGENCY
DISCOVERED ITS MISTAKE AND CEASED SUCH DEDUCTIONS. THE AGENCY
REIMBURSED THE EMPLOYEE FOR $80.33 (THE AMOUNT OF DUES ERRONEOUSLY)
DEDUCTED FROM HIS PAY). WHEN THE AGENCY NEXT TRANSMITTED TO THE UNION
DUES WHICH HAD BEEN DEDUCTED FROM EMPLOYEE PAY, THE AGENCY DEDUCTED THE
AMOUNT OF $80.33. THE UNION FILED A GRIEVANCE UNDER THE NEGOTIATED
GRIEVANCE PROCEDURE REQUESTING PAYMENT OF THE WITHHELD AMOUNT OF $80.33.
THE GRIEVANCE PROCEEDED TO ARBITRATION AND THE ARBITRATOR FOUND THAT
THE AGENCY HAD VIOLATED THE AGREEMENT BY WITHHOLDING FROM A PAYMENT OF
DEDUCTED UNION DUES AN AMOUNT PREVIOUSLY PAID TO THE UNION BY MISTAKE.
FINDING THAT "THE PARTICULAR METHOD USED IN THE INSTANT CASE VIOLATED
THE PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT," THE ARBITRATOR
ORDERED THE AGENCY TO REIMBURSE THE UNION IN THE AMOUNT OF $80.33 WHICH
HAD BEEN IMPROPERLY WITHHELD.
THE AGENCY HAS NOT COMPLIED WITH THE ARBITRATOR'S AWARD NOR HAS THE
AGENCY FILED A PETITION FOR REVIEW OF THE AWARD WITH THE COUNCIL.
INSTEAD THE AGENCY SOUGHT AN ADVANCE DECISION FROM THE COMPTROLLER
GENERAL OF THE UNITED STATES REQUESTING ANSWERS TO THE FOLLOWING
QUESTIONS:
(1) WAS THE ACTION TO DEDUCT THE $80.33 FOR THE ERRONEOUS PAYMENTS TO
THE UNION CORRECT?
(2) IF THE DEDUCTION FOR THE ERRONEOUS PAYMENTS WERE CORRECT, WHAT
ACTION THEN SHOULD BE
TAKEN IN REPLY TO THE AWARD OF ARBITRATION?
(3) IF IT IS HELD THAT THE ARBITRATOR WAS CORRECT, WHAT IS THE
APPROPRIATE FUND CITATION
FROM WHICH TO MAKE PAYMENTS?
IN DEFENSE OF THE UNFAIR LABOR PRACTICE CHARGE, THE AGENCY STATED
THAT IT IS UNABLE TO MAKE PAYMENT OF THE AMOUNT INVOLVED BECAUSE NO
APPROPRIATION EXISTS FOR PAYMENT AND A SPECIAL AUTHORIZATION FROM THE
COMPTROLLER GENERAL OF THE UNITED STATES IS NEEDED IN ORDER TO IMPLEMENT
THE AWARD.
UNDER THESE CIRCUMSTANCES THE ASSISTANT SECRETARY CONCLUDED THAT
CERTAIN MAJOR POLICY ISSUES HAD BEEN RAISED WHICH, PURSUANT TO SECTION
2411.4 OF THE COUNCIL'S RULES OF PROCEDURE /1/ AND SECTION 203.25(D) OF
THE ASSISTANT SECRETARY'S REGULATIONS, HE REFERRED TO THE COUNCIL FOR
DECISION:
(1) WHETHER THE ASSISTANT SECRETARY HAS THE AUTHORITY TO ENFORCE
UNDER SECTION 19 OF THE
ORDER A BINDING ARBITRATION AWARD IN WHICH NO EXCEPTIONS WERE FILED
WITH THE COUNCIL; AND
(2) IF THE ASSISTANT SECRETARY HAS THE AUTHORITY TO ENFORCE A BINDING
ARBITRATION AWARD, IS
A DEFENSE THAT A PARTY CANNOT COMPLY WITH AN ARBITRATION AWARD UNTIL
IT RECEIVES AUTHORIZATION
FROM THE COMPTROLLER GENERAL TO MAKE PAYMENT DISPOSITIVE OF THE
MATTER?
THE ISSUES REFERRED TO THE COUNCIL RAISE QUESTIONS ABOUT THE
ENFORCEMENT OR ARBITRATION AWARDS WHICH ARE OF SUBSTANTIAL IMPORTANCE TO
THE LABOR-MANAGEMENT RELATIONS PROGRAM UNDER THE ORDER.
1. AUTHORITY OF THE ASSISTANT SECRETARY TO ENFORCE ARBITRATION
AWARDS.
AS THE ASSISTANT SECRETARY POINTED OUT IN HIS REFERRAL, WHILE "THE
ORDER PROVIDES SPECIFICALLY THAT PARTIES MAY FILE EXCEPTIONS TO
ARBITRATION AWARDS WITH THE FEDERAL LABOR RELATIONS COUNCIL UNDER
REGULATIONS PRESCRIBED BY THE COUNCIL, THE ORDER AND THE RULES AND
REGULATIONS OF THE FEDERAL LABOR RELATIONS COUNCIL ARE SILENT WITH
RESPECT TO THE PROCEDURE TO FOLLOW IN ORDER TO OBTAIN ENFORCEMENT OF
ARBITRATION AWARDS."
EXECUTIVE ORDER 11491, AS AMENDED, PROVIDES IN SECTION 4(A) THAT:
(C) THE COUNCIL MAY CONSIDER, SUBJECT TO ITS REGULATIONS--
(1) APPEALS FROM DECISIONS OF THE ASSISTANT SECRETARY ISSUED PURSUANT
TO SECTION 6 OF THIS
ORDER;
(2) APPEALS NO NEGOTIABILITY ISSUES AS PROVIDED IN SECTION 11(C) OF
THIS ORDER;
(3) EXCEPTIONS TO ARBITRATION AWARDS; AND (4) OTHER MATTERS IT DEEMS
APPROPRIATE TO ASSURE
THE EFFECTUATION OF THE PURPOSES OF THIS ORDER /2/
SECTION 13(B) OF THE ORDER PROVIDES, IN RELEVANT PART, THAT "EITHER
PARTY MAY FILE EXCEPTIONS TO AN ARBITRATOR'S AWARD WITH THE COUNCIL,
UNDER REGULATIONS PRESCRIBED BY THE COUNCIL." /3/ IN DISCUSSING
EXCEPTIONS TO ARBITRATION AWARDS, THE STUDY COMMITTEE REPORT AND
RECOMMENDATIONS WHICH LED TO THE ISSUANCE OF E.O. 11491 STATED THAT
"(C)HALLENGES TO SUCH AWARDS SHOULD BE SUSTAINED ONLY ON GROUNDS SIMILAR
TO THOSE APPLIED BY THE COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
RELATIONS, AND PROCEDURES FOR THE CONSIDERATION OF EXCEPTIONS ON SUCH
GROUNDS SHOULD BE DEVELOPED BY THE COUNCIL." /4/ THERE WAS NO MENTION OF
ENFORCEMENT OF ARBITRATION AWARDS IN THE STUDY COMMITTEE REPORT.
WHEN THE COUNCIL FIRST ISSUED PART 2411 OF ITS RULES AND REGULATIONS
ON SEPTEMBER 29, 1970, SUBPART B OF PART 2411 ESTABLISHED A SINGLE SET
OF PROCEDURES UNDER WHICH THE COUNCIL WOULD REVIEW: (1) AWARDS OF
ARBITRATORS UNDER THE ORDER; (2) DECISIONS OF THE ASSISTANT SECRETARY
UNDER SECTION 6 OF THE ORDER; AND (3) DECISIONS OF AGENCY HEADS ON
NEGOTIABILITY ISSUES PROVIDED UNDER SECTION 11(C)(4) OF THE ORDER. THE
ALTERNATIVE ACTIONS AVAILABLE TO THE COUNCIL IN ISSUING ITS DECISIONS ON
THE MERITS IN ALL THREE TYPES OF CASES WERE DESCRIBED IN ONE SECTION
(SEC. 2411.20(A)) WHICH PROVIDED, IN RELEVANT PART:
SEC. 2411.20 COUNCIL DECISION; COMPLIANCE ACTIONS.
(A) THE COUNCIL SHALL ISSUE ITS DECISION SUSTAINING, ENFORCING,
MODIFYING, AND ENFORCING AS
SO MODIFIED, SETTING ASIDE IN WHOLE OR IN PART, OR REMANDING THE
DECISION OR AWARD . . .
THESE RULES WERE IN EFFECT FROM SEPTEMBER 29, 1070, UNTIL OCTOBER 3,
1972.
IN 1972 THE COUNCIL ASSESSED ITS EXPERIENCE UNDER ITS INITIAL RULES
OR PROCEDURE AND CONCLUDED THAT SOME CHANGES IN PART 2411 WOULD BETTER
ASSURE THE EFFECTUATION OF THE PURPOSES OF THE ORDER. THE COUNCIL
PUBLISHED A PROPOSED REVISION OF PART 2411 IN THE FEDERAL REGISTER (37
F.R. 9138), AND INVITED COMMENTS AND SUGGESTIONS FROM INTERESTED
PERSONS. ONE OF THE CHANGES PROPOSED AND EVENTUALLY ADOPTED WAS A
REARRANGEMENT OF THE FORMAT OF PART 2411 TO ESTABLISH THREE SEPARATE
SUBPARTS, EACH OF WHICH WAS LIMITED TO RULES OF PROCEDURE GOVERNING ONE
PARTICULAR TYPE OF REVIEW CASE. ANOTHER PROPOSED CHANGE WAS THE
DELETION FROM THE RULES OF THE ALTERNATIVE OF A COUNCIL DECISION
"ENFORCING" AN ARBITRATION AWARD. IN EXPLANATION OF THE LATTER PROPOSED
CHANGE, THE COUNCIL STATED THAT: /5/
THE EXISTING PROVISION (SEC. 2411.20(A)) DESCRIBES THE ALTERNATIVES
OPEN TO THE COUNCIL IN
ALL THREE TYPES OF REVIEW CASES. THE MODIFICATIONS ARE NECESSARY TO
ACCURATELY DESCRIBE THE
COUNCIL'S FUNCTION IN DECIDING ARBITRATION AWARD CASES SINCE THIS
SUBPART IS LIMITED TO THOSE
CASES. THE ALTERNATIVE OF "ENFORCING" WOULD NOT APPEAR TO BE
INVOLVED IN THIS FUNCTION.
IN RESPONSE, ONLY ONE OBJECTION TO THE CHANGE WAS RECEIVED. THE
AFL-CIO, SPEAKING FOR THE INTERNATIONAL UNIONS AFFILIATED WITH THAT
ORGANIZATION, OBJECTED TO THE DELETION OF "ENFORCING" FROM THE LIST OF
POSSIBLE ACTIONS WHICH THE COUNCIL MIGHT TAKE IN ARBITRATION CASES.
THE COUNCIL CONSIDERED THE COMMENTS THAT WERE RECEIVED (37 F.R.
20668) AND CONCLUDED THAT SECTION 2411.37(B) SHOULD BE ADOPTED AND
ISSUED AS PROPOSED, NAMELY:
SEC. 2411.37 COUNCIL DECISION.
(B) THE COUNCIL SHALL ISSUE ITS DECISION SUSTAINING, MODIFYING,
SETTING ASIDE IN WHOLE OR
IN PART, OR REMANDING THE AWARD.
THUS, IT IS CLEAR THAT THE COUNCIL THEN CONCLUDED, AND WE AGREE, THAT
THE ENFORCEMENT OF ARBITRATION AWARDS WAS NOT A ROLE CONTEMPLATED FOR
THE COUNCIL IN CARRYING OUT ITS FUNCTION OF CONSIDERING "EXCEPTIONS TO
ARBITRATION AWARDS" UNDER SECTION 4(C)(3) OF THE ORDER AND AS AMPLIFIED
IN THE STUDY COMMITTEE REPORT WHICH LED TO THE ISSUANCE OF THE ORDER
(QUOTED ABOVE). INSTEAD, THE RESOLUTION OF ENFORCEMENT QUESTIONS UNDER
THE UNFAIR LABOR PRACTICE PROCEDURES OF THE ASSISTANT SECRETARY IS
REQUIRED TO ASSURE THE EFFECTUATION OF THE PURPOSES OF THE ORDER.
SIGNIFICANTLY IN THIS REGARD, WHERE DISPUTES ARISE CONCERNING THE
ALLEGED FAILURE OF A PARTY TO ABIDE BY AN ARBITRATION AWARD, SUCH
DISPUTES MAY INVOLVE FACTUAL QUESTIONS WHICH MUST BE RESOLVED IN ORDER
TO DETERMINE WHETHER OR NOT AN AWARD HAS BEEN IMPLEMENTED. SUCH
DISPUTED ISSUES OF FACT, FREQUENTLY ENTAILING CREDIBILITY
DETERMINATIONS, ARE BEST RESOLVED THROUGH A HEARING AS PROVIDED UNDER
THE UNFAIR LABOR PRACTICE PROCEDURES OF THE ASSISTANT SECRETARY. FOR
THIS REASON COMPLAINTS CONCERNING THE ALLEGED FAILURE OF A PARTY TO
ABIDE BY AN ARBITRATION AWARD, WHERE THAT PARTY HAS NOT FILED WITH THE
COUNCIL A PETITION FOR REVIEW OF THE AWARD UNDER THE COUNCIL'S RULES OF
PROCEDURE, CAN AND SHOULD BE RESOLVED BY THE ASSISTANT SECRETARY UNDER
HIS AUTHORITY IN SECTION 6(A)(4) /6/ TO DECIDE THE UNFAIR LABOR PRACTICE
COMPLAINTS SPECIFIED IN SECTION 19 OF THE ORDER. THE COUNCIL IS OF THE
OPINION THAT THESE PROCEDURES, AS REFLECTED IN THE RULES, ARE CONSISTENT
WITH AND IMPLEMENTIVE OF THE LANGUAGE AND PURPOSES OF THE ORDER.
THEREFORE, THE COUNCIL HOLDS THAT THE ASSISTANT SECRETARY OF LABOR
HAS THE AUTHORITY UNDER SECTIONS 6(A)(4) AND 19 OF THE ORDER TO DECIDE
UNFAIR LABOR PRACTICE COMPLAINTS WHICH ALLEGE THAT A PARTY HAS REFUSED
TO COMPLY WITH AN ARBITRATION AWARD ISSUED UNDER A GRIEVANCE PROCEDURE
CONTAINED IN AN AGREEMENT IT NEGOTIATED UNDER THE ORDER. SUCH AUTHORITY
OBTAINS: (1) IF THE PARTY HAS FAILED TO FILE WITH THE COUNCIL A
PETITION FOR REVIEW OF THE AWARD UNDER THE COUNCIL'S RULES OF PROCEDURE,
OR (2) IF SUCH APPEAL WAS FILED BUT THE COUNCIL REJECTED ACCEPTANCE OF
THE APPEAL OR ISSUED A DECISION UPHOLDING THE AWARD. THE COUNCIL
RECOGNIZES THAT THIS METHOD FOR SEEKING ENFORCEMENT OF ARBITRATION
AWARDS MAY REQUIRE THE INITIATION OF SEPARATE PROCEEDINGS UNDER THE
ORDER. THEREFORE, THE COUNCIL BELIEVES IT WOULD BE APPROPRIATE FOR THE
ASSISTANT SECRETARY TO EXPEDITE THE PROCESSING OF UNFAIR LABOR PRACTICE
CASES WHICH PERTAIN TO THE ENFORCEMENT OF ARBITRATION AWARDS.
FURTHERMORE, THE COUNCIL ITSELF WILL EXPEDITE THE PROCESSING OF ANY
APPEALS WHICH IT MIGHT RECEIVE FROM DECISIONS OF THE ASSISTANT SECRETARY
IN SUCH CASES.
2. DEFENSES TO UNFAIR LABOR PRACTICE COMPLAINTS ALLEGING REFUSAL TO
COMPLY WITH ARBITRATION AWARDS.
WE TURN NEXT TO THE QUESTION OF WHETHER, IF THE ASSISTANT SECRETARY
HAS THE AUTHORITY TO ENFORCE A BINDING ARBITRATION AWARD, IS A DEFENSE
THAT A PARTY CANNOT COMPLY WITH AN ARBITRATION AWARD UNTIL IT RECEIVES
AUTHORIZATION FROM THE COMPTROLLER GENERAL TO MAKE PAYMENT DISPOSITIVE
OF THE MATTER? AS WE HAVE ALREADY DETERMINED, THE ASSISTANT SECRETARY
DOES HAVE THE AUTHORITY UNDER SECTIONS 6(A)(4) AND 19 OR THE ORDER, AND
UNDER THE CIRCUMSTANCES DESCRIBED ABOVE, TO DECIDE UNFAIR LABOR PRACTICE
COMPLAINTS WHICH ALLEGE THAT A PARTY HAS REFUSED TO COMPLY WITH AN
ARBITRATION AWARD ISSUED UNDER A GRIEVANCE PROCEDURE CONTAINED IN AN
AGREEMENT NEGOTIATED UNDER THE ORDER. AS TO WHETHER A PARTY MAY RELY
UPON A DEFENSE THAT IT CANNOT COMPLY WITH AN ARBITRATION AWARD UNTIL IT
MAY BE ASSURED OF THE LEGALITY OF THE AWARD (E.G., UNTIL IT RECEIVES
APPROPRIATE AUTHORIZATION FROM THE COMPTROLLER GENERAL), SUCH A DEFENSE
MAY NOT LIE TO THE UNFAIR LABOR PRACTICE PROCEEDING. IN THIS
CONNECTION, THE PARTY HAS AMPLE OPPORTUNITY TO RAISE SUCH QUESTIONS
CONCERNING THE LEGALITY OF THE AWARD IN EXCEPTIONS FILED WITH THE
COUNCIL. A PARTY'S REFUSAL TO COMPLY WITH AN ARBITRATION AWARD ISSUED
UNDER A NEGOTIATED GRIEVANCE PROCEDURE WHERE THE PARTY HAS FAILED TO
FILE EXCEPTIONS WITH THE COUNCIL IS A FAILURE TO COMPLY WITH ITS
OBLIGATIONS UNDER THE ORDER AND MAY BE DEEMED AN UNFAIR LABOR PRACTICE.
AND SUCH A PARTY MAY NOT RELIEVE HIMSELF OF SUCH OBLIGATIONS UNDER THE
ORDER BY REQUESTING AN OPINION FROM ANOTHER AGENCY SUCH AS THE UNITED
STATES GENERAL ACCOUNTING OFFICE. HENCE, SUCH ACTION IS NOT A DEFENSE
TO AN UNFAIR LABOR PRACTICE CHARGED FOR FAILURE TO IMPLEMENT AN
ARBITRATION AWARD ISSUED UNDER THE NEGOTIATED GRIEVANCE PROCEDURE IN AN
AGREEMENT, SUCH AS THAT IN THIS CASE. /7/
HOWEVER, THE ASSISTANT SECRETARY, IN FASHIONING A REMEDIAL ORDER IN
UNFAIR LABOR PRACTICE CASES, MAY NOT REQUIRE A PARTY TO ENGAGE IN AN
ILLEGAL ACTION. IN THIS CONNECTION, THE ASSISTANT SECRETARY'S REMEDIAL
ORDER MUST "EFFECTUATE THE PURPOSES OF THE ORDER." /8/ OBVIOUSLY, IT
WOULD BE INCONSISTENT WITH SUCH PURPOSES TO REQUIRE A PARTY TO VIOLATE
APPLICABLE LAW, APPROPRIATE REGULATION OR THE ORDER. /9/ THUS, WHERE
THE ASSISTANT SECRETARY FINDS THAT AN AGENCY HAS COMMITTED AN UNFAIR
LABOR PRACTICE UNDER EXECUTIVE ORDER 11491, AS AMENDED, BY ITS FAILURE
TO ABIDE BY AN ARBITRATION AWARD TO WHICH NO EXCEPTIONS WERE FILED WITH
THE COUNCIL, THE ASSISTANT SECRETARY MAY NOT, AS PART OF HIS REMEDIAL
ORDER, DIRECT THE AGENCY TO COMPLY WITH AN AWARD WHICH THE COMPTROLLER
GENERAL HAS DETERMINED, UNDER 31 U.S.C. 74, TO CALL FOR AN IMPROPER
PAYMENT AND, HENCE, TO BE CONTRARY TO LAW.
IN THE PRESENT CASE, SUBSEQUENT TO THE REFERRAL OF THE CASE TO THE
COUNCIL BY THE ASSISTANT SECRETARY, THE COMPTROLLER GENERAL HAS ISSUED
AN ADVANCE DECISION IN RESPONSE TO THE AGENCY'S QUESTIONS REGARDING THE
ARBITRATION AWARD. THE COMPTROLLER GENERAL CONCLUDED THAT THE ACTION TO
DEDUCT THE $80.33 FOR THE ERRONEOUS PAYMENTS TO THE UNION WAS CORRECT,
STATING THAT "NO AUTHORITY EXISTS TO PAY AN ADDITIONAL AMOUNT,
NOTWITHSTANDING THE ARBITRATION AWARD. /10/ THEREFORE, IN THIS
PARTICULAR CASE, SHOULD THE ASSISTANT SECRETARY FIND THAT THE AGENCY DID
COMMIT AN UNFAIR LABOR PRACTICE IN FAILING TO ABIDE BY AN AWARD TO WHICH
NO EXCEPTIONS WERE FILED WITH THE COUNCIL, HE MAY NOT, AS A PART OF HIS
REMEDIAL ORDER, DIRECT THE AGENCY TO COMPLY WITH THE ARBITRATION AWARD.
IN SUMMARY, IN AN UNFAIR LABOR PRACTICE COMPLAINT CASE, WHERE IT IS
ALLEGED THAT THE RESPONDENT HAS FAILED TO COMPLY WITH AN ARBITRATION
AWARD ISSUED UNDER A NEGOTIATED GRIEVANCE PROCEDURE AND THE RESPONDENT
HAS FAILED TO FILE WITH THE COUNCIL A PETITION FOR REVIEW OF THE AWARD
UNDER THE COUNCIL'S RULES OF PROCEDURE, NEITHER A DEFENSE THAT THE AWARD
VIOLATES APPLICABLE LAW, APPROPRIATE REGULATION OR THE ORDER, NOR A
DEFENSE THAT THE RESPONDENT HAS REFERRED THE QUESTION OF THE LEGALITY OF
THE AWARD OR ITS IMPLEMENTATION TO ANOTHER AGENCY, INCLUDING THE GENERAL
ACCOUNTING OFFICE, IS DISPOSITIVE OF THE UNFAIR LABOR PRACTICE
COMPLAINT. WHILE THE ASSISTANT SECRETARY, AFTER APPROPRIATE
CONSIDERATION, WHICH MAY INCLUDE REFERRAL TO PROPER AUTHORITIES FOR
LEGAL INTERPRETATIONS, MAY ULTIMATELY CONCLUDE THAT THE ARBITRATOR'S
AWARD IS CONTRARY TO APPLICABLE LAW, APPROPRIATE REGULATION OR THE
ORDER, THE ASSISTANT SECRETARY MAY NEVERTHELESS FIND THAT THE RESPONDENT
HAS COMMITTED AN UNFAIR LABOR PRACTICE BY FAILURE TO MEET ITS
OBLIGATIONS UNDER THE ORDER. SHOULD THE ASSISTANT SECRETARY SO FIND
THAT AN UNFAIR LABOR PRACTICE HAS BEEN COMMITTED, HE MAY NOT INCLUDE IN
HIS REMEDY A REQUIREMENT THAT THE COMPLAINANT COMPLY WITH AN AWARD THAT
IS CONTRARY TO APPLICABLE LAW, APPROPRIATE REGULATION OR THE ORDER.
THEREFORE, IN RESPONSE TO THE ASSISTANT SECRETARY'S QUESTIONS:
(1) THE ASSISTANT SECRETARY HAS THE AUTHORITY UNDER SECTION 6(A)(4)
AND (B) OF THE ORDER TO FIND THAT A PARTY HAS COMMITTED AN UNFAIR LABOR
PRACTICE BY ITS FAILURE TO COMPLY WITH AN ARBITRATION AWARD UNDER A
NEGOTIATED GRIEVANCE PROCEDURE TO WHICH NO EXCEPTIONS WERE FILED WITH
THE COUNCIL (JUST AS HE MAY IN A CASE IN WHICH A PARTY FAILS TO COMPLY
WITH AN AWARD AFTER EXCEPTIONS WERE FILED WITH THE COUNCIL AND THE
COUNCIL HAS EITHER REJECTED THE APPEAL OR ISSUED A DECISION UPHOLDING
THE AWARD.)
(2) IN AN UNFAIR LABOR PRACTICE COMPLAINT CASE ALLEGING REFUSAL TO
COMPLY WITH AN ARBITRATION AWARD, A DEFENSE THAT A PARTY CANNOT COMPLY
WITH THE AWARD UNTIL IT RECEIVES AUTHORIZATION FROM THE COMPTROLLER
GENERAL TO MAKE PAYMENT IS NOT DISPOSITIVE OF THE UNFAIR LABOR PRACTICE
COMPLAINT. HOWEVER, IN FASHIONING A REMEDY IN SUCH CASES, THE ASSISTANT
SECRETARY MAY NOT REQUIRE A PARTY TO COMPLY WITH AN AWARD THAT VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION OR THE ORDER. WHILE THE
ASSISTANT SECRETARY, AFTER APPROPRIATE CONSIDERATION, WHICH MAY INCLUDE
REFERRAL TO PROPER AUTHORITIES FOR LEGAL INTERPRETATIONS, MAY ULTIMATELY
CONCLUDE THAT THE ARBITRATOR'S AWARD IS CONTRARY TO APPLICABLE LAW,
APPROPRIATE REGULATION OR THE ORDER, THE ASSISTANT SECRETARY MAY
NEVERTHELESS FIND THAT THE RESPONDENT HAS COMMITTED AN UNFAIR LABOR
PRACTICE BY FAILURE TO MEET ITS OBLIGATIONS UNDER THE ORDER.
BY THE COUNCIL
ISSUED: MARCH 20, 1975
/1/ SECTION 2411.4 OF THE COUNCIL'S RULES OF PROCEDURE PROVIDES:
NOTWITHSTANDING THE PROCEDURES SET FORTH IN THIS PART, THE ASSISTANT
SECRETARY OR THE PANEL
MAY REFER FOR REVIEW AND DECISION OF GENERAL RULING BY THE COUNCIL
ANY CASE INVOLVING A MAJOR
POLICY ISSUE THAT ARISES IN A PROCEEDING BEFORE EITHER OF THEM. ANY
SUCH REFERRAL SHALL BE IN
WRITING AND A COPY OF SUCH REFERRAL SHALL BE SERVED ON ALL PARTIES TO
THE PROCEEDING. BEFORE
DECISION OF GENERAL RULING, THE COUNCIL SHALL OBTAIN THE VIEWS OF THE
PARTIES AND OTHER
INTERESTED PERSONS, ORALLY OR IN WRITING, AS IT DEEMS NECESSARY AND
APPROPRIATE.
/2/ IT SHOULD BE NOTED THAT THE COUNCIL'S AUTHORITY UNDER SECTION
4(C) IS CAST IN DISCRETIONARY TERMS-- THE "COUNCIL MAY CONSIDER, SUBJECT
TO ITS REGULATIONS."
/3/ THIS SENTENCE ORIGINALLY CONSTITUTED SECTION 14(B) OF THE ORDER;
WHEN THE ORDER WAS AMENDED BY E.O. 11616 IN 1971, SECTION 14(B) WAS
REVOKED AND THE SENTENCE WAS INCORPORATED IN SECTION 13(B).
/4/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICES (1969), P.
42.
/5/ FLRC INFORMATION ANNOUNCEMENT OF MAY 3, 1972, "REQUESTS FOR
COMMENTS ON PROPOSED REVISION OF COUNCIL RULES," COMPARATIVE ANALYSIS,
SUBPART D, SEC. 2411.32.
/6/ SECTION 6(A)(4) OF THE ORDER PROVIDES, IN RELEVANT PART:
(A) THE ASSISTANT SECRETARY SHALL--
(4) DECIDE UNFAIR LABOR PRACTICE COMPLAINTS . . .
/7/ WE RECOGNIZE THAT DISBURSING OFFICERS AND AGENCY HEADS HAVE A
STATUTORY RIGHT UNDER 31 U.S.C. 74 TO SEEK RULINGS FROM THE COMPTROLLER
GENERAL ON QUESTIONS INVOLVING PAYMENTS TO BE MADE BY OR UNDER THEM. WE
BELIEVE THE VIEW TAKEN HEREIN REGARDING THE RESPECTIVE JURISDICTIONS OF
THE GENERAL ACCOUNTING OFFICE AND THE COUNCIL TO BE CONSISTENT WITH THE
POSITION TAKEN BY THE COMPTROLLER GENERAL IN HIS RECENT DECISION IN
B-180010, OCTOBER 31, 1974, 54 COMP.GEN. . . . , WHEREIN HE STATED IN
PERTINENT PART:
(S)ECTION 13(B) OF EXECUTIVE ORDER NO. 11491 PROVIDES THAT EITHER AN
AGENCY OR AN EXCLUSIVE
REPRESENTATIVE MAY FILE AN EXCEPTION TO AN ARBITRATOR'S AWARD WITH
THE FEDERAL LABOR RELATIONS
COUNCIL . . . WHEN AN AGENCY DOES CHOOSE TO FIRST FILE AN EXCEPTION
WITH THE COUNCIL, IF THE
COUNCIL IS UNSURE AS TO WHETHER THE ARBITRATION AWARD MAY PROPERLY BE
IMPLEMENTED IN
ACCORDANCE WITH THE DECISIONS OF THIS OFFICE, IT SHOULD EITHER SUBMIT
THE MATTER DIRECTLY TO
THIS OFFICE FOR DECISION OR, AFTER RULING ON ANY OTHER ISSUES
INVOLVED IN THE EXCEPTION WHICH
INVOLVED MATTERS NOT WITHIN THE JURISDICTION OF THIS OFFICE, IT
SHOULD INSTRUCT THE AGENCY
INVOLVED TO REQUEST A RULING FROM THIS OFFICE AS TO THE LEGALITY OF
IMPLEMENTATION OF THE
AWARD.
WHILE THE DECISION HEREIN RECOGNIZED THE OBLIGATION OF AGENCIES UNDER
THE ORDER TO FILE EXCEPTIONS TO ARBITRATION AWARDS WITH THE COUNCIL
WHERE AGENCIES HAVE QUESTIONS AS TO THE LEGALITY OF SUCH AWARDS, AT THE
SAME TIME IT DOES NOT PREVENT AGENCIES FROM EXERCISING THEIR STATUTORY
RIGHTS TO SEEK RULINGS DIRECTLY FROM THE COMPTROLLER GENERAL. HOWEVER,
THE FACT THAT AN AGENCY HAS SOUGHT A RULING DIRECTLY FROM THE
COMPTROLLER GENERAL DOES NOT RELIEVE THE AGENCY OF ITS OBLIGATIONS UNDER
THE ORDER AND, HENCE, IS NOT A DEFENSE TO AN UNFAIR LABOR PRACTICE
COMPLAINT.
/8/ SECTION 6(B) OF THE ORDER STATES:
IN ANY MATTERS ARISING UNDER PARAGRAPH (A) OF THIS SECTION, THE
ASSISTANT SECRETARY MAY
REQUIRE AN AGENCY OR A LABOR ORGANIZATION TO CEASE AND DESIST FROM
VIOLATIONS OF THIS ORDER
AND REQUIRE IT TO TAKE SUCH AFFIRMATIVE ACTION AS HE CONSIDERS
APPROPRIATE TO EFFECTUATE THE
POLICIES OF THIS ORDER.
/9/ IN THIS REGARD, IT SHOULD BE NOTED THAT SECTION 2411.37(A) OF THE
COUNCIL'S RULES PROVIDES, IN PERTINENT PART, THAT "(A)N AWARD OF AN
ARBITRATOR SHALL BE MODIFIED, SET ASIDE IN WHOLE OR IN PART, OR REMANDED
ONLY ON GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW, APPROPRIATE
REGULATION, OR THE ORDER . . . " THUS, FOR EXAMPLE, IF THE COUNCIL FINDS
THAT AN AWARD VIOLATES THE PROVISIONS OF TITLE 5, UNITED STATES CODE, OR
THAT AN AWARD VIOLATES THE REGULATIONS OF THE CIVIL SERVICE COMMISSION,
OR THAT AN AWARD VIOLATES SECTION 12(B) OF THE ORDER, THE COUNCIL WILL
NULLIFY OR SET ASIDE THAT AWARD.
/10/ DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES,
B-180095, OCTOBER 1, 1974.
5 A/SLMR 517; P. 344; CASE NO. 22-5558(CA); MAY 30, 1975.
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
A/SLMR NO. 517
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY
NATIONAL ASSOCIATION OF AIR TRAVEL SPECIALISTS (NAATS) (COMPLAINANT)
AGAINST DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION
(RESPONDENT) ALLEGING VIOLATIONS OF SECTION 19(A)(1) AND (6) OF THE
ORDER. THE CASE WAS TRANSFERRED TO THE ASSISTANT SECRETARY PURSUANT TO
SECTION 206.5(B) OF THE ASSISTANT SECRETARY'S REGULATIONS AFTER THE
PARTIES SUBMITTED A STIPULATION OF FACTS AND EXHIBITS TO THE ASSISTANT
REGIONAL DIRECTOR. THE COMPLAINT ALLEGED THAT THE RESPONDENT VIOLATED
THE ORDER BY FAILING AND REFUSING TO COMPLY WITH AN ARBITRATION AWARD
DIRECTING IT TO PROVIDE NAATS MEMBERS EMPLOYED AT THE RESPONDENT'S
FLIGHT SERVICE STATION, DES MOINES, IOWA, MUNICIPAL AIRPORT WITH
ADEQUATE PARKING ACCOMODATIONS. THE COMPLAINANT CONTENDED THAT THE
ARBITRATION AWARD BECAME FINAL AND BINDING AND THAT THE RESPONDENT WAS
OBLIGED TO IMPLEMENT THE AWARD AFTER ITS PETITION FOR REVIEW WAS DENIED
BY THE FEDERAL LABOR RELATIONS COUNCIL. THE RESPONDENT ARGUED THAT
QUESTIONS ARISING FROM AN ARBITRATOR'S AWARD ARE NOT APPROPRIATE MATTERS
FOR CONSIDERATION UNDER SECTION 19 OF THE ORDER AND, THEREFORE, ARE NOT
MATTERS FOR ENFORCEMENT BY THE ASSISTANT SECRETARY WITHIN THE FRAMEWORK
OF THE UNFAIR LABOR PRACTICE PROCEDURES. MOREOVER, THE RESPONDENT
CONTENDED THAT, EVEN ASSUMING SECTION 19 OF THE ORDER WAS APPLICABLE,
ITS DECISION NOT TO IMPLEMENT THE ARBITRATOR'S AWARD WAS NOT VIOLATIVE
OF THE ORDER AS SUCH AWARD WAS RENDERED MOOT BY VIRTUE OF THE
RENEGOTIATION OF THE PARTIES' AGREEMENT.
IN FINDING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6), THE
ASSISTANT SECRETARY, CITING DEPARTMENT OF THE ARMY, ABERDEEN PROVING
GROUND, A/SLMR NO. 412, FLRC 74A-46, NOTED THAT THE FEDERAL LABOR
RELATIONS COUNCIL RECENTLY HELD THAT "THE RESOLUTION OF ENFORCEMENT
QUESTIONS UNDER THE UNFAIR LABOR PRACTICE PROCEDURES OF THE ASSISTANT
SECRETARY IS REQUIRED TO ASSURE THE EFFECTUATION OF THE PURPOSES OF THE
ORDER" AND THAT, THEREFORE, "THE ASSISTANT SECRETARY HAD THE AUTHORITY
UNDER SECTIONS 6(A)(4) AND 19 OF THE ORDER TO DECIDE UNFAIR LABOR
PRACTICE COMPLAINTS WHICH ALLEGE THAT A PARTY HAS REFUSED TO COMPLY WITH
AN ARBITRATION AWARD ISSUED UNDER A GRIEVANCE PROCEDURE CONTAINED IN AN
AGREEMENT NEGOTIATED UNDER THE ORDER." THE ASSISTANT SECRETARY FURTHER
NOTED THAT WHILE THE ABERDEEN CASE INVOLVED THE ISSUE WHETHER THE
ASSISTANT SECRETARY HAD THE AUTHORITY TO ENFORCE UNDER SECTION 19 OF THE
ORDER A BINDING ARBITRATION AWARD IN WHICH NO EXCEPTIONS WERE FILED WITH
THE COUNCIL, THE COUNCIL ADDITIONALLY FOUND THAT THERE WAS NO
DISTINCTION TO BE DRAWN WITH RESPECT TO THOSE CASES IN WHICH EXCEPTIONS
HAD BEEN FILED.
BASED ON THE FOREGOING RATIONALE OF THE COUNCIL, THE ASSISTANT
SECRETARY REJECTED THE RESPONDENT'S CONTENTION THAT QUESTIONS ARISING
FROM AN ARBITRATION AWARD ARE NOT APPROPRIATE MATTERS FOR ENFORCEMENT BY
THE ASSISTANT SECRETARY WITHIN THE FRAMEWORK OF THE UNFAIR LABOR
PRACTICE PROCEDURES.
WITH RESPECT TO THE QUESTION OF "MOOTNESS" RAISED BY THE RESPONDENT,
THE ASSISTANT SECRETARY FOUND THAT THE EVIDENCE WAS INSUFFICIENT TO
ESTABLISH THAT THE COMPLAINANT WAIVED A PREVIOUSLY EXISTING TERM AND
CONDITION OF EMPLOYMENT AS A RESULT OF THE EXECUTION OF THE PARTIES'
MOST RECENT NEGOTIATED AGREEMENT.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE RESPONDENT
CEASE AND DESIST FROM THE CONDUCT FOUND VIOLATIVE OF THE ORDER AND TAKE
CERTAIN AFFIRMATIVE ACTIONS.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION
AND
NATIONAL ASSOCIATION OF AIR TRAFFIC
SPECIALISTS (NAATS)
THIS MATTER IS BEFORE THE ASSISTANT SECRETARY PURSUANT TO ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES KENNETH L. EVANS' ORDER
TRANSFERRING CASE TO THE ASSISTANT SECRETARY PURSUANT TO SECTION
205.5(B) OF THE ASSISTANT SECRETARY'S REGULATIONS.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THE SUBJECT CASE,
INCLUDING THE PARTIES' STIPULATION, ACCOMPANYING EXHIBITS AND BRIEFS,
THE ASSISTANT SECRETARY FINDS:
THE COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT VIOLATED SECTION
19(A)(1) AND (6) OF THE ORDER BY FAILING AND REFUSING TO COMPLY WITH AN
ARBITRATION AWARD DIRECTING IT TO PROVIDE NAATS MEMBERS EMPLOYED AT THE
FEDERAL AVIATION ADMINISTRATION (FAA) FLIGHT SERVICE STATION, DES
MOINES, IOWA, MUNICIPAL AIRPORT, WITH ADEQUATE PARKING ACCOMMODATIONS.
IN THIS REGARD, THE COMPLAINANT CONTENDS THAT THE ARBITRATION AWARD
INVOLVED HEREIN BECAME FINAL AND BINDING AND THAT THE RESPONDENT WAS
OBLIGED TO IMPLEMENT THAT AWARD AFTER THE LATTER'S PETITION FOR REVIEW
WAS DENIED BY THE FEDERAL LABOR RELATIONS COUNCIL ON MARCH 29, 1974.
/1/ THE RESPONDENT, ON THE OTHER HAND, ARGUES THAT QUESTIONS ARISING
FROM AN ARBITRATOR'S AWARD ARE NOT APPROPRIATE MATTERS FOR CONSIDERATION
UNDER SECTION 19 OF THE EXECUTIVE ORDER AND, THEREFORE, ARE NOT MATTERS
FOR ENFORCEMENT BY THE ASSISTANT SECRETARY WITHIN THE FRAMEWORK OF THE
UNFAIR LABOR PRACTICE PROCEDURES. MOREOVER, THE RESPONDENT CONTENDS
THAT, EVEN ASSUMING SECTION 19 OF THE ORDER WAS APPLICABLE IN THIS
MATTER, ITS DECISION NOT TO IMPLEMENT THE ARBITRATOR'S AWARD WAS NOT
VIOLATIVE OF SECTION 19(A)(1) AND (6) OF THE ORDER AS SUCH AWARD WAS
RENDERED MOOT BY VIRTUE OF THE RENEGOTIATION OF THE PARTIES' AGREEMENT.
THE UNDISPUTED FACTS, AS STIPULATED BY THE PARTIES, ARE AS FOLLOWS:
ON SEPTEMBER 14, 1971, THE RESPONDENT ISSUED ORDER 4665.3A WHICH
ANNOUNCED THE FAA'S POLICY "ON PROVIDING ACCOMMODATIONS FOR OFFICIAL AND
EMPLOYEE PARKING IN FAA OCCUPIED BUILDINGS AND FACILITIES. THE ORDER
REQUIRED THE RESPONDENT TO PROVIDE "ADEQUATE PARKING ACCOMMODATIONS" FOR
ITS EMPLOYEES ENGAGED IN MAINTENANCE AND OPERATION OF AGENCY TECHNICAL
FACILITIES. /2/
SHORTLY THEREAFTER, EFFECTIVE JUNE 1, 1972, THE COMPLAINANT AND THE
RESPONDENT ENTERED INTO A NATIONAL AGREEMENT WHICH WAS TO BE IN EFFECT
FOR ONE YEAR, WHICH AGREEMENT SUBSEQUENTLY WAS EXTENDED TO OCTOBER 1,
1973. ARTICLE VIII, SECTION 1, OF THE AGREEMENT, DEALING WITH "PARKING
FACILITIES", PROVIDED, IN PART, THAT "(TO) THE EXTENT THAT FAA HAS
CONTROL OVER PARKING, ADEQUATE PARKING ACCOMMODATIONS SHALL BE PROVIDED
FOR THE PRIVATELY OWNED VEHICLES OF ON-DUTY FLIGHT SERVICE EMPLOYEES . .
. REGIONAL OFFICIALS AND FACILITY CHIEFS SHALL ASSURE THAT THE FAA
POLICY ON PARKING ACCOMMODATIONS AT FAA FACILITIES IS COMPLIED WITH."
/3/
THE NEGOTIATED AGREEMENT CONTAINED A GRIEVANCE PROCEDURE WHICH
PROVIDED FOR THE SUBMISSION OF UNRESOLVED GRIEVANCES TO ARBITRATION.
DURING THE PERIOD OF THE AGREEMENT, UNIT EMPLOYEES ENGAGED IN
MAINTENANCE AND OPERATION OF THE RESPONDENT'S TECHNICAL FACILITIES
OPERATION AT THE FAA DES MOINES, IOWA, MUNICIPAL AIRPORT FILED A
GRIEVANCE REQUESTING THAT THE RESPONDENT FURNISH "ADEQUATE" PARKING AS
REQUIRED BY ARTICLE VIII OF THE AGREEMENT AND ORDER 4665.3A. THIS
GRIEVANCE SUBSEQUENTLY WAS SUBMITTED TO ARBITRATION PURSUANT TO THE
TERMS OF THE AGREEMENT.
ON AUGUST 20, 1973, ARBITRATOR C. WAYNE HATCHER ISSUED HIS AWARD AND
CONCLUDED AS FOLLOWS:
"THE GRIEVANCE HEREIN IS RESOLVED IN FAVOR OF THE ASSOCIATION AND ITS
MEMBERS. THE
EMPLOYER HAS FAILED TO PROVIDE ADEQUATE PARKING ACCOMMODATIONS, FOR
THE PRIVATELY OWNED
VEHICLES OF THE ASSOCIATION'S MEMBERS OF THE FAA FACILITY IN QUESTION
AT THE ADMINISTRATION
BUILDING OF THE DES MOINES, IOWA, MUNICIPAL AIRPORT, IN COMPLIANCE
WITH ARTICLE VIII OF THE
ASSOCIATION-EMPLOYER AGREEMENT AND THE PROVISIONS OF FAA ORDER
4665.3A.
"THE EMPLOYER, BY USE OF FAA FUNDS, SHALL IMMEDIATELY PROVIDE
TEMPORARY PARKING
ACCOMMODATIONS THAT ARE LOCATED APART FROM THE PARKING AREA AS
PRESENTLY ASSIGNED TO THE
ASSOCIATION'S MEMBERS, AND SUCH TEMPORARY PARKING ACCOMMODATIONS SO
TO BE PROVIDED SHALL AS
CLOSELY AS POSSIBLE COMPLY WITH ARTICLE VIII OF THE PARTIES'
AGREEMENT AND FAA ORDER
4665.3A. SUCH TEMPORARY PARKING ACCOMMODATIONS SHALL BE AFFORDED TO
THE ASSOCIATION'S MEMBERS
RENT FREE, UNLESS THE REGIONAL DIRECTOR DETERMINES A REASONABLE COST
IS APPROPRIATE, UNTIL
SUCH TIME AS THE EMPLOYER CAN PROVIDE SAID ASSOCIATION MEMBERS WITH
OTHER PARKING
ACCOMMODATIONS AT AN AREA WHICH FULLY COMPLIES WITH RESPECT TO THE
ADEQUACY REQUIREMENTS
CONCERNING WEATHER CONDITIONS, PERSONNEL SAFETY, RENTAL COST AND THE
REASONABLE DISTANCE THAT
THE AREA MAY BE SITUATED AWAY FROM THE FAA FACILITY AS SET FORTH IN
SAID ARTICLE VIII OF THEIR
AGREEMENT AND FAA ORDER 4665.3A."
ON SEPTEMBER 11, 1973, THE PARTIES CONCLUDED A NEW AGREEMENT WHICH
REPLACED THE AGREEMENT DUE TO EXPIRE ON OCTOBER 1, 1973. THIS NEW
AGREEMENT DID NOT INCLUDE THE PREVIOUS ARTICLE CONCERNING "PARKING
FACILITIES." THEREAFTER, ON SEPTEMBER 12, 1973, THE RESPONDENT FILED A
PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH THE FEDERAL LABOR
RELATIONS COUNCIL. ON MARCH 29, 1974, THE COUNCIL REJECTED THE
RESPONDENT'S CONTENTION THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY
STATING, IN PART:
"IT IS UNCONTROVERTED THAT THE ARBITRATOR WAS AUTHORIZED BY THE
PARTIES TO DETERMINE
WHETHER THE FAA 'HAS PROVIDED ADEQUATE PARKING ACCOMMODATIONS AT FAA
FACILITIES . . . AT DES
MOINES, IOWA . . . IN COMPLIANCE WITH ARTICLE VIII OF THE
ASSOCIATION-EMPLOYER AGREEMENT AND
FEDERAL AVIATION ADMINISTRATION'S ORDER 4665.3A.' MOREOVER, AS NOTED
PREVIOUSLY, ARTICLE VIII
SPECIFICALLY INCORPORATES THE 'FAA POLICY ON PARKING ACCOMMODATIONS
AT FAA FACILITIES.' IN
THE OPINION OF THE COUNCIL, THE AGENCY HAS MISINTERPRETED THE
ARBITRATOR'S AWARD IN WHICH THE
ARBITRATOR MERELY MADE AN APPLICATION OF THE PROVISIONS OF FAA ORDER
4665.3A TO THE PARTICULAR
FACTS OF THE GRIEVANCE AND, IN SO DOING, MADE ESSENTIALLY THE SAME
DETERMINATION AS HAD THE
AGENCY'S REGIONAL DIRECTOR, NAMELY, THAT THE PARKING AFFORDED THE
AGENCY'S EMPLOYEES WAS NOT
'ADEQUATE,' AS REQUIRED BY FAA ORDER 4665.3A."
SUBSEQUENTLY, THE RESPONDENT TOOK THE POSITION "THAT, SINCE THE
CURRENT NAATS AGREEMENT ELIMINATED PARKING PROVISIONS FROM THE
BARGAINING AGREEMENT, THE DES MOINES GRIEVANCE WAS RENDERED MOOT AND ALL
CONTRACTUAL OBLIGATIONS TO EFFECT THIS AWARD WERE LIKEWISE NULLIFIED."
TO DATE, THE RESPONDENT HAS CONTINUED IN ITS REFUSAL TO COMPLY WITH THE
AWARD ON THE FOREGOING BASIS.
ALL OF THE FACTS AND POSITIONS SET FORTH ABOVE ARE DERIVED FROM THE
PARTIES' STIPULATION, ACCOMPANYING EXHIBITS AND BRIEFS.
WITH RESPECT TO THE RESPONDENT'S CONTENTION THAT QUESTIONS ARISING
FROM ARBITRATION AWARDS ARE NOT APPROPRIATE MATTERS FOR CONSIDERATION
UNDER SECTION 19 OF THE EXECUTIVE ORDER AND, THEREFORE, ARE NOT MATTERS
FOR ENFORCEMENT BY THE ASSISTANT SECRETARY, IT WAS NOTED THAT IN
DEPARTMENT OF THE ARMY, ABERDEEN PROVING GROUND, A/SLMR NO. 412, FLRC
74A-46, THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL) RECENTLY HELD
THAT, "THE RESOLUTION OF ENFORCEMENT QUESTIONS UNDER THE UNFAIR LABOR
PRACTICE PROCEDURES OF THE ASSISTANT SECRETARY IS REQUIRED TO ASSURE THE
EFFECTUATION OF THE PURPOSES OF THE ORDER" AND THAT, THEREFORE, "THE
ASSISTANT SECRETARY HAS THE AUTHORITY UNDER SECTIONS 6(A)(4) AND 19 OR
THE ORDER TO DECIDE UNFAIR LABOR PRACTICE COMPLAINTS WHICH ALLEGE THAT A
PARTY HAS REFUSED TO COMPLY WITH AN ARBITRATION AWARD ISSUED UNDER A
GRIEVANCE PROCEDURE CONTAINED IN AN AGREEMENT NEGOTIATED UNDER THE
ORDER." /4/ WHILE THE ABERDEEN CASE INVOLVED THE ISSUE WHETHER THE
ASSISTANT SECRETARY HAD THE AUTHORITY TO ENFORCE UNDER SECTION 19 OF THE
ORDER A BINDING ARBITRATION AWARD IN WHICH NO EXCEPTIONS WERE FILED WITH
THE COUNCIL, IT WAS ADDITIONALLY FOUND BY THE COUNCIL THAT THERE WAS NO
DISTINCTION TO BE DRAWN WITH RESPECT TO THOSE CASES IN WHICH EXCEPTIONS
HAD BEEN FILED. THUS, THE COUNCIL STATED THAT, "SUCH AUTHORITY OBTAINS:
(1) IF THE PARTY HAS FAILED TO FILE WITH THE COUNCIL A PETITION FOR
REVIEW OF THE AWARD UNDER THE COUNCIL'S RULES OF PROCEDURE, OR (2) IF
SUCH APPEAL WAS FILED BUT THE COUNCIL REJECTED ACCEPTANCE OF THE APPEAL
OR ISSUED A DECISION UPHOLDING THE AWARD."
BASED ON THE FOREGOING RATIONALE OF THE COUNCIL, I REJECT THE
RESPONDENT'S CONTENTION THAT QUESTIONS ARISING FROM AN ARBITRATION AWARD
ARE NOT APPROPRIATE MATTERS FOR ENFORCEMENT BY THE ASSISTANT SECRETARY
WITHIN THE FRAMEWORK OF THE UNFAIR LABOR PRACTICE PROCEDURES.
AS NOTED ABOVE, THE RESPONDENT FURTHER CONTENDED THAT BECAUSE THE
PARTIES' SEPTEMBER 11, 1973, AGREEMENT WAS SILENT ON THE SUBJECT OF
PARKING, THE INSTANT "GRIEVANCE WAS RENDERED MOOT AND ALL CONTRACTUAL
OBLIGATIONS TO EFFECT THIS AWARD WERE LIKEWISE NULLIFIED." WHILE IT IS
CLEAR THAT THE PARTIES' NEW NEGOTIATED AGREEMENT DID NOT CONTAIN THE
PREVIOUS PARKING PROVISIONS, IT IS FAR FROM CLEAR, AS THE RESPONDENT NOW
ARGUES, THAT THERE WAS A WAIVER INTENDED BY THE PARTIES OF THE PREVIOUS
TERMS AND CONDITIONS REGARDING PARKING AND THAT A NEW AGREEMENT WOULD
NOT HAVE BEEN EXECUTED HAD THE PREVIOUS TERMS AND CONDITIONS RELATING TO
PARKING NOT BEEN WAIVED. /5/ WHAT IS CLEAR, HOWEVER, IS THAT AT THE
TIME THE INSTANT GRIEVANCE WAS SUBMITTED FOR ARBITRATION, THE
APPLICATION OF FAA ORDER 4665.3A WAS SUBJECT TO THE GRIEVANCE PROCEDURE
ESTABLISHED UNDER THE THEN EXISTING NEGOTIATED AGREEMENT. IN MY VIEW,
WHEN THE QUESTION OF THE APPLICATION OF FAA ORDER 4665.3A WAS SUBMITTED
TO AN ARBITRATOR FOR DECISION PURSUANT TO THE TERMS OF THE PARTIES'
AGREEMENT, BOTH PARTIES, IN EFFECT, AGREED TO BE BOUND BY THE
ARBITRATOR'S AWARD, ABSENT SUCH AWARD BEING OVERTURNED BY THE COUNCIL ON
EXCEPTIONS OR THE PARTIES' MUTUAL AGREEMENT NOT TO BE BOUND BY SUCH
AWARD. IN THE INSTANT CASE, AS NOTED ABOVE, THE COUNCIL DENIED THE
RESPONDENT'S PETITION FOR REVIEW AND THERE IS NO AFFIRMATIVE EVIDENCE
THAT THE PARTIES MUTUALLY AGREED NOT TO BE BOUND BY THE ARBITRATION
AWARD. UNDER THESE CIRCUMSTANCES, THE ARBITRATOR'S AWARD, IN EFFECT,
ESTABLISHED A TERM AND CONDITION OF EMPLOYMENT FOR UNIT EMPLOYEES AT THE
RESPONDENT'S DES MOINES FACILITY. SUCH A TERM AND CONDITION OF
EMPLOYMENT, ALTHOUGH NOT TREATED EXPRESSLY IN THE PARTIES' MOST RECENT
NEGOTIATED BARGAINING AGREEMENT, BECAME AND REMAINED A MATTER UPON WHICH
BOTH THE COMPLAINANT AND THE RESPONDENT WERE OBLIGATED TO MEET AND
CONFER IF EITHER DESIRED A MODIFICATION. SINCE THE MOST RECENT
NEGOTIATED AGREEMENT CONTAINS NO SPECIFIC REFERENCE TO THE ABOVE-NOTED
PREVIOUSLY ESTABLISHED TERM AND CONDITION OF EMPLOYMENT AND NO
AFFIRMATIVE EVIDENCE WAS SUBMITTED TO INDICATE THAT THE PARTIES MUTUALLY
AGREED TO A RESCISSION OF SAME, /6/ I FIND THAT THE EVIDENCE IS
INSUFFICIENT TO ESTABLISH THAT THE COMPLAINANT WAIVED THE PREVIOUSLY
EXISTING TERM AND CONDITION OF EMPLOYMENT AS A RESULT OF THE EXECUTION
OF THE PARTIES' MOST RECENT NEGOTIATED AGREEMENT. NOR, UNDER THE
CIRCUMSTANCES HEREIN, DO I BELIEVE THAT THE RESPONDENT CAN NOW ACHIEVE,
BY MERELY DECLARING THAT THE ISSUE IS MOOT AS A RESULT OF A NEW
NEGOTIATED BARGAINING AGREEMENT, WHICH IS SILENT ON THE SUBJECT OF
PARKING, WHAT IT FAILED TO ACHIEVE THROUGH THE GRIEVANCE-ARBITRATION
MACHINERY AND REVIEW BY THE COUNCIL.
ACCORDINGLY, I FIND THAT THE RESPONDENT'S REFUSAL TO COMPLY WITH THE
ARBITRATION AWARD HEREIN VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE DEPARTMENT OF
TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO COMPLY WITH AN ARBITRATION AWARD DIRECTING THE FAA
FLIGHT SERVICE STATION, DES MOINES, IOWA, MUNICIPAL AIRPORT TO AFFORD
ADEQUATE PARKING ACCOMMODATIONS FOR THE AGENCY'S EMPLOYEES AS WAS
REQUIRED BY FAA ORDER 4665.3A.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE EXECUTIVE ORDER.
(A) UPON REQUEST, COMPLY WITH THE ARBITRATION AWARD DIRECTING THE FAA
FLIGHT SERVICE STATION, DES MOINES, IOWA, MUNICIPAL AIRPORT TO AFFORD
ADEQUATE PARKING ACCOMMODATIONS FOR THE AGENCY'S EMPLOYEES AS WAS
REQUIRED BY FAA ORDER 4665.3A.
(B) POST AT ITS FACILITY AT THE FAA FLIGHT SERVICE STATION, DES
MOINES, IOWA, MUNICIPAL AIRPORT, COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL
BE SIGNED BY THE ADMINISTRATOR OF THE FEDERAL AVIATION ADMINISTRATION
AND SHALL BE POSTED AND MAINTAINED BY THE REGIONAL DIRECTOR, FAA FLIGHT
SERVICE CENTER, DES MOINES, IOWA, MUNICIPAL AIRPORT FOR 60 CONSECUTIVE
DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE
NOTICES TO EMPLOYEES AT THE FAA FLIGHT SERVICE CENTER, DES MOINES, IOWA,
ARE CUSTOMARILY POSTED. THE REGIONAL DIRECTOR SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
MAY 30, 1975
/1/ SEE FEDERAL AVIATION ADMINISTRATION,U.S. DEPARTMENT OF
TRANSPORTATION, AND NATIONAL ASSOCIATION OF AIR TRAFFIC SPECIALISTS, DES
MOINES, IOWA, FLIGHT SERVICE STATION, FLRC NO. 73A-50.
/2/ SECTION 4A(2) OF FAA ORDER 4665.3A PROVIDED, IN RELEVANT PART:
"(A) ON AIRPORTS. ADEQUATE PARKING ACCOMMODATIONS FOR FAA EMPLOYEES
IN CLOSE PROXIMITY TO
FAA TECHNICAL FACILITIES IS CONSIDERED TO BE AN INTEGRAL PART OF EACH
FACILITY . . .
NO NEW LEASES, PERMITS OR OTHER INSTRUMENTS ARE TO BE EXECUTED OR
EXISTING ONES MODIFIED
WITHOUT THE INCLUSION OF SPECIFIC STATEMENTS ASSURING ADEQUATE
EMPLOYEE PARKING ACCOMMODATIONS
AT ALL TECHNICAL FACILITIES LOCATED ON THE AIRPORT . . . "
/3/ ARTICLE V OF THE AGREEMENT, ENTITLED, "MANAGEMENT RIGHTS",
SPECIFIED THAT:
"IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THIS AGREEMENT,
OFFICIALS AND EMPLOYEES
ARE GOVERNED BY EXISTING OR FUTURE LAWS AND THE REGULATIONS OF
APPROPRIATE AUTHORITIES,
. . . BY PUBLISHED DEPARTMENT OF TRANSPORTATION AND FEDERAL AVIATION
ADMINISTRATION POLICIES
AND REGULATIONS IN EXISTENCE AT THE TIME THE AGREEMENT WAS APPROVED,
AND BY SUBSEQUENTLY
PUBLISHED AGENCY POLICIES AND REGULATIONS . . . "
/4/ SECTION 6(A)(4) PROVIDES, IN RELEVANT PART: "(A) THE ASSISTANT
SECRETARY SHALL -- (4) DECIDE UNFAIR LABOR PRACTICE COMPLAINTS . . . AND
ALLEGED VIOLATIONS OF THE STANDARD OF CONDUCT FOR LABOR ORGANIZATIONS."
/5/ INTERESTINGLY, ON SEPTEMBER 12, 1973, ONE DAY AFTER THE NEW
NEGOTIATED AGREEMENT WAS EXECUTED, THE RESPONDENT FILED ITS PETITION FOR
REVIEW OF THE ARBITRATOR'S AWARD WITH THE COUNCIL. FURTHERMORE, THERE
IS NO EVIDENCE THAT THE RESPONDENT AT ANY TIME ADVISED THE COUNCIL THAT
THE ENTIRE MATTER ALLEGEDLY HAD BEEN RENDERED MOOT BY VIRTUE OF THE
PARTIES' NEW NEGOTIATED AGREEMENT. THUS, THE MATTER OF MOOTNESS WAS
RAISED BY THE RESPONDENT ONLY AFTER THE COUNCIL'S DECISION ISSUED
DENYING THE RESPONDENT'S PETITION FOR REVIEW.
/6/ IN THIS REGARD, WHILE THE RESPONDENT'S LETTER TO THE
COMPLAINANT'S GENERAL COUNSEL, DATED JUNE 26, 1974, INDICATED THAT THERE
WAS AGREEMENT "TO FOREGO ANY PROVISIONS ON PARKING IN OUR CURRENT
AGREEMENT," THERE IS NO CONTENTION THAT THE PARTIES AGREED THAT THE
ESTABLISHED TERM AND CONDITION OF EMPLOYMENT AFFECTED BY THE ARBITRATION
AWARD WAS, THEREFORE, NULLIFIED.
WE WILL NOT REFUSE TO COMPLY WITH AN ARBITRATION AWARD DIRECTING THE
FAA FLIGHT SERVICE STATION, DES MOINES, IOWA, MUNICIPAL AIRPORT TO
AFFORD ADEQUATE PARKING ACCOMMODATIONS FOR THE AGENCY'S EMPLOYEES AS WAS
REQUIRED BY FAA ORDER 4665.3A.
WE WILL, UPON REQUEST, COMPLY WITH THE ARBITRATION AWARD DIRECTING
THE FAA FLIGHT SERVICE STATION, DES MOINES, IOWA, MUNICIPAL AIRPORT TO
AFFORD ADEQUATE PARKING ACCOMMODATIONS FOR THE AGENCY'S EMPLOYEES AS WAS
REQUIRED BY FAA ORDER 4665.3A.
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
EXECUTIVE ORDER.
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 QEUSTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR, WHOSE ADDRESS IS" ROOM 14120, GATEWAY BUILDING, 3535 MARKET
STREET, PHILADELPHIA, PENNSYLVANIA 19104.