7 A/SLMR 912; P. 859; CASE NOS. 40-7514(CA) AND 40-7585(CA);
OCTOBER 4, 1977.
OCTOBER 4, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
WARNER ROBINS AIR LOGISTICS CENTER,
ROBINS AIR FORCE BASE, GEORGIA
A/SLMR NO. 912
THESE CASES INVOLVED TWO UNFAIR LABOR PRACTICE COMPLAINTS FILED BY
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987, AFL-CIO
(COMPLAINANT). ONE COMPLAINT ALLEGED THAT THE RESPONDENT VIOLATED
SECTION 19(A)(1), (2) AND (6) OF THE ORDER BY ITS UNILATERAL OF ITS LAST
NEGOTIATION OFFER REGARDING THE AMOUNT OF OFFICIAL TIME AVAILABLE TO
STEWARDS FOR REPRESENTATIONAL PURPOSES WHEN THE ISSUE WAS PENDING BEFORE
THE FEDERAL SERVICE IMPASSES PANEL (FSIP). THE SECOND COMPLAINT ALLEGED
THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY
ITS UNILATERAL IMPLEMENTATION, AFTER THE COMPLAINT'S REQUEST FOR
NEGOTIATIONS, OF A SYSTEM FOR RECORDING STEWARDS' USE OF OFFICIAL TIME
FOR REPRESENTATIONAL ACTIVITIES.
REGARDING THE FIRST COMPLAINT, THE ADMINISTRATIVE LAW JUDGE FOUND
THAT NO OVERRIDING EXIGENCY EXISTED TO PERMIT THE IMPLEMENTATION OF AN
IMPASSED ISSUE WHILE PENDING BEFORE THE FSIP, CITING U.S. ARMY CORPS OF
ENGINEERS, A/SLMR NO. 673, AND HE THEREFORE CONCLUDED THAT THE
RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER. HE
RECOMMENDED DISMISSAL OF THE SECTION 19(A)(2) ALLEGATION.
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED DISMISSAL OF THE SECOND
COMPLAINT CONCLUDING THAT THERE IS AN ARGUABLE BASIS UNDER THE PARTIES'
NEGOTIATED AGREEMENT FOR THE RESPONDENT'S POSITION THAT "CONSULTATION"
(AS DEFINED IN THE AGREEMENT) RATHER THAN NEGOTIATION FULFILLED ITS
OBLIGATIONS BEFORE IMPLEMENTING THE RECORD KEEPING SYSTEM. THEREFORE,
THE ADMINISTRATIVE LAW JUDGE FOUND THE CASE INVOLVED DIFFERING AND
ARGUABLE INTERPRETATIONS OF THE AGREEMENT, RATHER THAN A CLEAR
UNILATERAL BREACH WHICH COULD BE THE BASIS FOR AN UNFAIR LABOR PRACTICE
FINDING.
NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS REGARDING THE SECOND
CASE, THE ASSISTANT SECRETARY ADOPTED THE ADMINISTRATIVE LAW JUDGE'S
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS AND HE ORDERED THAT THE
RESPONDENT CEASE AND DESIST FROM THE CONDUCT FOUND VIOLATIVE OF THE
ORDER IN THE FIRST CASE AND THAT IT TAKE CERTAIN AFFIRMATIVE ACTIONS
WITH RESPECT THERETO.
WARNER ROBINS AIR LOGISTICS CENTER,
ROBINS AIR FORCE BASE, GEORGIA
RESPONDENT
CASE NOS. 40-7514(CA) AND 40-7585(CA)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 987, AFL-CIO
COMPLAINANT
DECISION AND ORDER
ON MAY 4, 1977, 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 CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTION AS SET FORTH IN THE ATTACHED ADMINSTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER. THEREAFTER, THE RESPONDENT
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
RESPONDENT'S EXCEPTIONS AND SUPPORTING BRIEF, AND NOTING PARTICULARLY
THAT NO EXCEPTIONS WERE FILED IN CONNECTION WITH CASE NO. 40-7585(CA),
I HEREBY ADOPT THE FINDINGS, /1/ CONCLUSIONS AND RECOMMENDATIONS OF THE
ADMINISTRATIVE LAW JUDGE.
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 WARNER ROBINS AIR
LOGISTICS CENTER, ROBINS AIR FORCE BASE, GEORGIA SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY IMPLEMENTING MATTERS WHICH HAVE BEEN BARGAINED TO
IMPASSE DURING COLLECTIVE BARGAINING NEGOTIATIONS WITH THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987, AFL-CIO, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE, AND WHICH HAVE BEEN SUBMITTED TO THE FEDERAL
SERVICE IMPASSES PANEL, INCLUDING LIMITATIONS ON THE USE OF OFFICIAL
TIME BY STEWARDS FOR REPRESENTATIONAL PURPOSES, UNTIL THE PROCESSES OF
THE FEDERAL SERVICE IMPASSES PANEL HAVE BEEN ALLOWED TO RUN THEIR
COURSE.
(B) IN ANY LIKE OR RELATED MANNER INTERFERRING WITH, RESTRAINING, OR
COERCING 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 POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
987, AFL-CIO, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, THAT MANAGEMENT
WILL NOT UNILATERALLY IMPLEMENT MATTERS WHICH HAVE BEEN BARGAINED TO
IMPASSE DURING COLLECTIVE BARGAINING NEGOTIATIONS AND WHICH HAVE BEEN
SUBMITTED TO THE FEDERAL SERVICE IMPASSES PANEL, INCLUDING LIMITATIONS
ON THE USE OF OFFICIAL TIME BY STEWARDS FOR REPRESENTATIONAL PURPOSES,
UNTIL THE PROCESSES OF THE FEDERAL SERVICE IMPASSES PANEL HAVE BEEN
ALLOWED TO RUN THEIR COURSE.
(B) POST AT ITS FACILITY AT WARNER ROBINS AIR LOGISTICS CENTER,
ROBINS AIR FORCE BASE, 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 COMMANDING GENERAL, WARNER ROBINS AIR LOGISTICS CENTER,
ROBINS AIR FORCE BASE, GEORGIA, AND SHALL BE POSTED AND MAINTAINED BY
HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING
ALL PLACES WHERE NOTICES OF EMPLOYEES ARE CUSTOMARILY POSTED. THE
COMMANDING GENERAL SHALL TAKE REASONABLE STEPS TO ENSURE 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. 40-7514(CA),
INSOFAR AS IT ALLEGES A VIOLATION OF SECTION 19(A)(2) OF THE ORDER, AND
THE COMPLAINT IN CASE NO. 40-7585(CA) BE, AND THEY HEREBY ARE,
DISMISSED.
DATED, WASHINGTON, D.C.
OCTOBER 4, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ AT PAGE 5 OF HIS RECOMMENDED DECISION AND ORDER, THE
ADMINISTRATIVE LAW JUDGE INADVERTENTLY USED THE WORD "OVERTIME" RATHER
THAN "OFFICIAL TIME." THIS INADVERTENT ERROR IS HEREBY CORRECTED.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS EXECUTIVE ORDER
11491, AS AMENDED LABOR-MANAGEMENT RELATIONS IN THE
FEDERAL SERVICE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT UNILATERALLY IMPLEMENT MATTERS WHICH HAVE BEEN BARGAINED
TO IMPASSE DURING COLLECTIVE BARGAINING NEGOTIATIONS WITH THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987, AFL-CIO, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE, AND WHICH HAVE BEEN SUBMITTED TO THE FEDERAL
SERVICE IMPASSES PANEL, INCLUDING LIMITATIONS ON THE USE OF OFFICIAL
TIME BY STEWARDS FOR REPRESENTATIONAL PURPOSES, UNTIL THE PROCESSES OF
THE FEDERAL SERVICE IMPASSES PANEL HAVE BEEN ALLOWED TO RUN THEIR
COURSE.
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 NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
987, AFL-CIO, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, THAT WE WILL NOT
UNILATERALLY IMPLEMENT MATTERS WHICH HAVE BEEN BARGAINED TO IMPASSE
DURING COLLECTIVE BARGAINING NEGOTIATIONS AND WHICH HAVE BEEN SUBMITTED
TO THE FEDERAL SERVICE IMPASSES PANEL, INCLUDING LIMITATIONS ON THE USE
OF OFFICIAL TIME BY STEWARDS FOR REPRESENTATIONAL PURPOSES, UNTIL THE
PROCESSES OF THE FEDERAL SERVICE IMPASSES PANEL HAVE BEEN ALLOWED TO RUN
THEIR COURSE.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, WHOSE
ADDRESS IS: ROOM 300-- 1371 PEACHTREE STREET, NE, ATLANTA, GEORGIA
30309.
U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
SUITE 700-1111 20TH STREET, N.W.
WASHINGTON, D.C. 20036
IN THE MATTER OF
WARNER ROBINS AIR LOGISTICS
CENTER, ROBINS AIR FORCE BASE,
WARNER ROBINS GEORGIA
RESPONDENT
CASE NOS. 40-7514(CA)
40-7585(CA)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 987, AFL-CIO
COMPLAINANT
MICHAEL DEEP, ESQ., AND
CAPTAIN JERRY BRASEL
WARNER ROBINS, GEORGIA
FOR THE RESPONDENT
MARK ROTH AND LAWRENCE E. FRANKS, ESQS.
WASHINGTON, D.C.
FOR THE COMPLAINANT
BEFORE: GORDON J. MYATT
ADMINSTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO A COMPLAINT FILED IN CASE NO. 40-7514(CA) BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987, AFL-CIO (HEREINAFTER
CALLED THE UNION), AGAINST WARNER ROBINS AIR LOGISTICS CENTER, ROBINS
AIR FORCE BASE (HEREINAFTER CALLED THE ACTIVITY), AND A SUBSEQUENT
COMPLAINT FILED IN CASE NO. 40-7585(CA), THE REGIONAL ADMINISTRATOR FOR
LABOR-MANAGEMENT SERVICES ADMINISTRATION FOR THE ATLANTA REGION ISSUED
NOTICES OF HEARING ON COMPLAINT ON OCTOBER 21, AND OCTOBER 26, 1976,
RESPECTIVELY. THE CASES WERE CONSOLIDATED FOR PURPOSES OF HEARING BY AN
ORDER ISSUED OCTOBER 26, 1976.
THE COMPLAINT IN CASE NO. 40-7514 ALLEGED THAT THE ACTIVITY VIOLATED
SECTION 19(A)(1), (2) AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED. THE
COMPLAINT IN CASE NO. 40-7585 ALLEGED THAT THE ACTIVITY VIOLATED
SECTION 19(A)(1) AND (6) OF THE ORDER.
IN CASE NO. 40-7514 IT IS ALLEGED THAT THE ACTIVITY UNILATERALLY
IMPLEMENTED ITS LAST OFFER ON THE AMOUNT OF OFFICIAL TIME AVAILABLE TO
UNION STEWARDS FOR REPRESENTATIONAL PURPOSES AT A TIME WHEN THE SAME
SUBJECT MATTER HAD BEEN SUBMITTED BY THE PARTIES TO THE FEDERAL SERVICES
IMPASSES PANEL AND THAT FORUM HAD NOT HAD AN OPPORTUNITY TO ACT ON THE
IMPASSED MATTER. THE COMPLAINANT IN CASE NO. 40-7585 ALLEGES THAT THE
ACTIVITY UNILATERALLY IMPLEMENTED A RECORD-KEEPING SYSTEM IN THE
DIRECTORATE OF DISTRIBUTION, WITHOUT NEGOTIATING UPON REQUEST, FOR THE
SOLE PURPOSE OF RECORDING THE USE OF OFFICIAL TIME BY UNION STEWARDS IN
THE PERFORMANCE OF THEIR REPRESENTATIONAL DUTIES. IT IS ASSERTED THAT
THE IMPLEMENTATION WAS EFFECTED IN SPITE OF WRITTEN NOTICE BY THE UNION
THAT THE SUBJECT MATTER WAS NEGOTIABLE.
A HEARING WAS HELD IN WARNER ROBINS, GEORGIA, ON NOVEMBER 30 AND
DECEMBER 1, 1976. ALL PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED
FULL OPPORTUNITY TO BE HEARD AND TO INTRODUCE RELEVANT EVIDENCE AND
TESTIMONY ON THE ISSUES INVOLVED. BRIEFS WERE SUBMITTED BY COUNSEL AND
HAVE BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS MATTER, INCLUDING MY OBSERVATION OF
THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING:
FINDINGS OF FACT /1/
A. BACKGROUND FACTS
THE ACTIVITY HAS WORLD-WIDE RESPONSIBILITY FOR ACTIVITIES ESSENTIAL
TO THE MILITARY MISSION OF THE UNITED STATES AIR FORCE. THE ACTIVITY
HAS THREE BASIC MISSIONS: (1) WORLD-WIDE LOGISTICS MANAGER FOR ASSIGNED
AIRCRAFT AND COMMODITIES; (2) REPAIR CENTER FOR AIRCRAFT AND FIVE
DISTINCT TECHNOLOGIES; (3) STORAGE CENTER AT BOTH OF THE WHOLESALE AND
RETAIL LEVELS FOR AIR FORCE SPARE PARTS AND SYSTEMS. THE ACTIVITY IS
THE EXCLUSIVE TECHNOLOGY REPAIR CENTER FOR AIRBORNE ELECTRONICS FOR THE
ENTIRE AIR FORCE. THIS RESPONSIBILITY REQUIRES SUPPORT FOR MAINTENANCE
SHOP OPERATIONS AS WELL AS FOR RECEIVING, STORING, ISSUING AND
TRANSPORTING ALL ASSIGNED EQUIPMENT AND LOGISTICS FOR WHICH IT IS
RESPONSIBLE.
THE ACTIVITY EMPLOYS APPROXIMATELY 16,500 CIVILIANS AS WELL AS
MILITARY PERSONNEL. THE HIGHEST AUTHORITY AT THE LOGISTICS CENTER IS
THE COMMANDER-- MAJOR GENERAL WILLIAM R. HAYES. ORGANIZATIONALLY THE
ACTIVITY IS STRUCTURED INTO A NUMBER OF OPERATIONAL ELEMENTS. THE
HIGHEST ELEMENTS DIRECTLY SUBORDINATE TO THE COMMANDER ARE DIRECTORATES.
EACH DIRECTORATE IS COMPOSED OF SUBORDINATE ELEMENTS DESIGNATED, IN
DESCENDING ORDER, AS DIVISIONS, BRANCHES, SECTIONS, UNITS, AND LINE
SUPERVISORS. TWO OF THE LARGEST DIRECTORATES ARE THE DIRECTORATE OF
MAINTENANCE AND THE DIRECTORATE OF DISTRIBUTION. THE FORMER IS
CONCERNED WITH AIRCRAFT MAINTENANCE RESPONSIBILITIES WHILE THE LATTER IS
RESPONSIBLE FOR THE RECEIPT, STORAGE, AND ISSUANCE OF LOGISTICS ON A
WORLD-WIDE BASIS. THERE ARE A NUMBER OF HUGE COMPLEX STRUCTURES LOCATED
ON THE BASE, INCLUDING MAINTENANCE HANGERS AND WAREHOUSING FACILITIES.
THE UNION HAS BEEN THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR THE
BARGAINING UNIT EMPLOYEES OF THE ACTIVITY SINCE 1966. THERE HAVE BEEN A
SERIES OF NEGOTIATED AGREEMENTS IN EFFECT BETWEEN THE PARTIES, BUT THE
1973 AGREEMENT PROVIDES THE STARTING POINT FOR CONSIDERATION OF THE
ISSUES PRESENTED HERE. THE UNION STRUCTURED ITSELF ORGANIZATIONALLY TO
CORRESPOND WITH THE ORGANIZATIONAL SET-UP OF THE ACTIVITY. THE
PRESIDENT OF THE UNION IS CONSIDERED THE COUNTERPART TO THE COMMANDER OR
HIS DESIGNEE. IMMEDIATELY SUBORDINATE TO THE UNION PRESIDENT IS THE
EXECUTIVE VICE PRESIDENT, WHO IS ALSO IN CHARGE OF ALL OF THE STEWARDS
THROUGHOUT THE BASE. EACH MAJOR DIRECTORATE HAS A UNION VICE PRESIDENT
ASSIGNED TO IT AS THE COUNTERPART OF THE DIRECTOR OR THE DEPUTY DIRECTOR
OF THAT DIRECTORATE. EACH DIRECTORATE ALSO HAS A CHIEF STEWARD /2/ AND
DIVISIONAL, BRANCH, SECTION, AND UNIT STEWARDS. IN ALL, THERE ARE
APPROXIMATELY 200 STEWARDS AND UNION OFFICIALS SERVICING THE EMPLOYEES
OF THE VARIOUS UNITS.
B. THE 1973 NEGOTIATED AGREEMENT
IN JUNE 1973 THE PARTIES COMPLETED NEGOTIATIONS FOR AND SIGNED AN
AGREEMENT WHICH WAS APPROVED BY A HIGHER MILITARY AUTHORITY, EFFECTIVE
NOVEMBER 16, 1973. (JOINT EXHIBIT NO. 3). THE AGREEMENT CONTAINED THE
FOLLOWING PROVISION RELATING TO UNION REPRESENTATION:
ARTICLE VIII
UNION REPRESENTATION
SECTION A: . . . THE EMPLOYER AGREES TO RECOGNIZE A MAXIMUM OF ONE
STEWARD TO EVERY 50
EMPLOYEES IN THE UNITS. THE UNION AGREES, IN APPLYING THE PROVISIONS
OF THIS SECTION, TO
ASSURE THAT EACH EMPLOYEE IN THE BARGAINING UNITS HAS READY ACCESS TO
A STEWARD IN HIS WORKING
AREA. . . .
SECTION D: THE PRIMARY RESPONSIBILITY OF A STEWARD IS HIS ASSIGNED
DUTY AS A GOVERNMENT
EMPLOYEE. A STEWARD WILL BE ALLOWED A REASONABLE AMOUNT OF TIME TO
CARRY OUT HIS STEWARD
DUTIES COMMENSURATE WITH THE PROVISIONS OF THIS AGREEMENT. THE UNION
AGREES THAT ITS OFFICERS
AND STEWARDS WILL GUARD AGAINST THE USE OF EXCESSIVE TIME IN
PERFORMING DUTIES CONSIDERED
APPROPRIATE BY THIS AGREEMENT. . . .
IN JUNE 1974, THE PARTIES EXECUTED SUPPLEMENT I TO THE MULTI-UNIT
AGREEMENT. HOWEVER, THIS SUPPLEMENT DID NOT TOUCH UPON THE PROVISIONS
RELATING TO UNION REPRESENTATION. (JOINT EXHIBIT NO. 3).
C. THE PROBLEM ON THE USE OF OFFICIAL TIME BY UNION
REPRESENTATIVES
THE RECORD DISCLOSES THAT MANAGEMENT AND UNION REPRESENTATIVES WERE
INVOLVED IN A LONG-STANDING DISPUTE OVER WHAT MANAGEMENT CONSIDERED TO
BE EXCESSIVE USE OF OFFICIAL TIME BY UNION REPRESENTATIVES IN THE
PERFORMANCE OF THEIR REPRESENTATIONAL DUTIES. IN 1973, THE DEPUTY
DIRECTOR OF THE DIRECTORATE OF MAINTENANCE PROPOSED TO REVISE AN
OPERATING INSTRUCTION (MAOI 11-9) OF THAT ORGANIZATION. HE SOUGHT TO
REQUIRE ISSUANCE OF ADMINISTRATIVE PERMITS BY SUPERVISORS TO UNION
REPRESENTATIVES SEEKING TO LEAVE THEIR DUTY STATIONS FOR
REPRESENTATIONAL PURPOSES. (RESPONDENT ACTIVITY EXHIBIT NO. 1). THIS
WAS AN EFFORT TO CONTROL THE AMOUNT OF OFFICIAL TIME USED BY UNION
STEWARDS IN THAT DIRECTORATE. THE UNION VIGOROUSLY OPPOSED THIS AND
INDICATED THAT A SIMILAR ATTEMPT TO ADDRESS THE PROBLEM HAD BEEN
INITIATED BY MANAGEMENT IN 1972. (RESPONDENT ACTIVITY NO. 2).
TESTIMONY BY MANAGEMENT OFFICIALS, RANGING FROM FIRST-LINE
SUPERVISORS TO DIRECTORATE LABOR RELATIONS OFFICERS, /3/ INDICATE THAT
THE PROBLEM WAS A MAJOR CONCERN THROUGHOUT THE ENTIRE ACTIVITY. THE
EVIDENCE SHOWS THAT FROM 1973 THROUGH 1975, BETWEEN 60 AND 70 UNION
STEWARDS AND REPRESENTATIVES WERE AWAY FROM THEIR JOBS AND ENGAGED IN
ACTIVITIES ON BEHALF OF THE UNION FOR PERIODS RANGING FROM 25% TO 100%
OF THEIR JOB TIME. SURVEYS CONDUCTED IN THE DISTRIBUTION AND
MAINTENANCE DIRECTORATES INDICATE THAT SUPERVISORS WERE UNABLE TO
CONTROL THE USE OF OFFICIAL TIME BY THE UNION REPRESENTATIVES BECAUSE
THE NEGOTIATED AGREEMENT REQUIRED A "REASONABLE TIME" FOR THIS PURPOSE.
THERE WERE NO GUIDELINES OR SPECIFIC INSTRUCTIONS FOR THE SUPERVISORS OR
THE UNION REPRESENTATIVES TO FOLLOW IN DETERMINING WHAT AMOUNT OF TIME
WAS NECESSARY IN ANY GIVEN SITUATION. THERE IS UNDISPUTED TESTIMONY IN
THE RECORD THAT WHEN SUPERVISORS SOUGHT TO DENY UNION STEWARDS USE OF
OFFICIAL TIME FOR AN ASSERTED REPRESENTATIONAL PURPOSE, THE STEWARD
WOULD THEN FILE A GRIEVANCE AGAINST THE SUPERVISOR BASED ON A PUTATIVE
CONTRACT VIOLATION. UNDER THE TERMS OF THE NEGOTIATED AGREEMENT, THE
AGGRIEVED STEWARD WAS THEN ENTITLED TO REPRESENTATION BY ANOTHER UNION
STEWARD AND A REASONABLE TIME TO PREPARE THE GRIEVANCE FOR PRESENTATION.
IN ADDITION THE STEWARD WAS ENTITLED TO A MAXIMUM OF EIGHT HOURS TO
PREPARE FOR A HIGHER LEVEL APPEAL, IF IT WERE NOT SATISFACTORILY
RESOLVED BY THE FIRST-LINE SUPERVISOR. (ARTICLE VIII, SECTION D OF THE
1973 AGREEMENT). BY ADOPTING THESE TACTICS, UNION STEWARDS, WHO WERE
DENIED USE OF OVERTIME BY THEIR SUPERVISORS, COULD EFFECTIVELY GET THE
TIME NOT ONLY TO PROCESS THEIR OWN PURPORTED GRIEVANCE, BUT ALSO TO
HANDLE THE MATTER FOR WHICH THEY ORIGINALLY INTENDED TO LEAVE THEIR DUTY
STATION. MOREOVER, THE FILING OF A CONTRACT GRIEVANCE WOULD CAUSE
ANOTHER UNION REPRESENTATIVE TO LEAVE HIS OR HER JOB ASSIGNMENT TO
PERFORM A REPRESENTATIONAL FUNCTION.
THE PROBLEM OF EXCESSIVE USE OF OFFICIAL TIME BY UNION
REPRESENTATIVES CONTINUED TO PLAGUE MANAGEMENT THROUGHOUT THE TERM OF
THE AGREEMENT. THE RECORD SHOWS THAT THE USE OF OFFICIAL TIME BY UNION
REPRESENTATIVES INCREASED DURING 1974 AND 1975. THE OFFICIAL UNION VIEW
WAS THAT ANY AMOUNT OF TIME REQUIRED FOR REPRESENTATIONAL MATTERS WAS
"REASONABLE" UNDER THE TERMS OF THE NEGOTIATED AGREEMENT. ANOTHER
CONTRIBUTING FACTOR IN THE REPRESENTATIONAL DEMANDS ON UNION STEWARDS
WAS THE FACT THAT THE STEWARD POSITIONS WERE UNDER-STAFFED; EVEN THOUGH
THERE WERE APPROXIMATELY 200 STEWARDS ASSIGNED TO THE ACTIVITY. IN SOME
INSTANCES, A SINGLE STEWARD WOULD OCCUPY STEWARD POSITIONS FOR SEVERAL
ORGANIZATIONAL LEVELS; E.G., A DIVISION STEWARD WOULD OCCUPY A NUMBER
OF THE STEWARD POSITIONS WITHIN THAT DIVISION OR A BRANCH STEWARD WOULD
SERVE AS A BRANCH, SECTION, AND/OR UNIT STEWARD WITHIN THAT GIVEN
BRANCH. THIS DRASTICALLY INCREASED THE AMOUNT OF TIME SUCH A STEWARD
WOULD BE REQUIRED TO DEVOTE TO REPRESENTATIONAL MATTERS.
IN ADDITION TO THE COMPLAINTS OF MANAGEMENT THAT STEWARDS WERE
FAILING TO PERFORM THEIR ASSIGNED GOVERNMENT DUTIES, MANAGEMENT WAS
CONFRONTED WITH A DETERIORATION IN THE MORALE OF THE EMPLOYEES WORKING
IN THE UNITS WHERE THE STEWARDS WERE NORMALLY EMPLOYED. THE TESTIMONY
INDICATES THAT BECAUSE OF THE GREAT AMOUNT OF ABSENCES, THE SUPERVISORS
OR OTHER EMPLOYEES HAD TO PERFORM THE JOB DUTIES WHICH WERE ASSIGNED TO
THE STEWARDS. ACCORDINGLY TO THE UNDISPUTED TESTIMONY OF MANAGEMENT
OFFICIALS, THESE EMPLOYEES RESENTED HAVING TO CARRY THIS EXTRA BURDEN TO
ENABLE THE STEWARDS TO PERFORM DUTIES ON BEHALF OF THE UNION.
FURTHERMORE, THE EVIDENCE INDICATES THAT THE LENGTHY ABSENCES FROM THE
DUTY STATIONS CAUSED CONTINUING FRICTION BETWEEN THE SUPERVISORS AND THE
STEWARDS INVOLVED. IN INSTANCES WHERE THE SUPERVISORS QUESTIONED THE
STEWARD TO DETERMINE THE NEED FOR OFFICIAL TIME, THE STEWARD WOULD
REFUSE TO DIVULGE ANY INFORMATION OTHER THAN THAT IT WAS A UNION MATTER.
WHEN THIS OCCURRED, THE SUPERVISOR WAS UNABLE TO MAKE A JUDGMENT AS TO
WHETHER THE USE OF THE TIME WAS JUSTIFIED. IF HE REFUSED THE TIME, HE
WAS SUBJECTED TO A CONTRACT GRIEVANCE FILED BY THE STEWARD. THE RECORD
DISCLOSES THAT AS MANY AS SEVEN GRIEVANCES WERE FILED IN AN EIGHT HOUR
PERIOD AGAINST A SINGLE SUPERVISOR BY THE SAME STEWARD. AS NOTED, THESE
GRIEVANCES WOULD ENTITLE THE STEWARD TO BE REPRESENTED BY ANOTHER
STEWARD, AND THEY WOULD BOTH BE AFFORDED TIME TO PREPARE THE GRIEVANCES
FOR PRESENTATION AT THE FIRST LEVEL AND ADDITIONAL TIME TO PREPARE AN
APPEAL TO A HIGHER AUTHORITY. /4/ UNDER THE TERMS OF THE NEGOTIATED
AGREEMENT THESE GRIEVANCES COULD BE PURSUED UP TO THE LEVEL OF THE
COMMANDER. THE RECORD SHOWS, HOWEVER, THAT IN MOST INSTANCES THE
GRIEVANCES WERE NOT PRESSED BEYOND THE DIRECTORATE LEVEL, AND THE
STEWARDS GAINED SUFFICIENT TIME TO ENGAGE IN REPRESENTATIONAL FUNCTIONS
AS WELL AS TIME TO PURSUE THE CONTRACT GRIEVANCE.
IN AN EFFORT TO CONTROL THE AMOUNT OF TIME EMPLOYEES SPENT ON MATTERS
OTHER THAN OFFICIALLY ASSIGNED DUTIES, THE ACTIVITY ISSUED A REGULATION
ON MARCH 12, 1976, DESIGNATED "EMPLOYEE CONTROL POLICY". INCLUDED IN
THE TYPES OF ABSENCES AUTHORIZED WERE: (A) CONSULTING WITH THE CIVILIAN
PERSONNEL OFFICE, EEO ADVISORS, OR UNION REPRESENTATIVES; (B) GRIEVANCE
OR APPEAL HEARINGS; AND (C) STEWARDS PERFORMING STEWARD DUTY AUTHORIZED
BY THE LABOR AGREEMENT. THIS POLICY PROVIDED FOR THREE METHODS OF
NOTIFICATION REGARDING THE WHEREABOUTS OF EMPLOYEES. THE FIRST WAS AN
INFORMAL METHOD WHEREBY VERBAL PERMISSION WOULD BE OBTAINED FROM A
SUPERVISOR. THE SECOND PROVIDED FOR A "SIGN-OUT BOARD" ON WHICH THE
EMPLOYEE WOULD NOTE THE INFORMATION REGARDING HIS WHEREABOUTS AND OBTAIN
PERMISSION FROM THE SUPERVISOR BEFORE LEAVING. ON RETURN THE EMPLOYEE
WOULD HAVE TO CHECK IN WITH THE SUPERVISOR AND ERASE THE ENTRY ON THE
SIGN-OUT BOARD. THE THIRD PROCEDURE WAS THE USE OF AN "ADMINISTRATIVE
PERMIT". THE EMPLOYEE WOULD HAVE TO REQUEST PERMISSION AND RECEIVE A
PERMIT AUTHORIZING HIS ABSENCE FROM THE AREA. UPON RETURN TO HIS WORK
STATION HE WOULD GIVE THE PERMIT BACK TO THE SUPERVISOR WHO WOULD RETAIN
IT FOR 30 DAYS FOR RECORD PURPOSES. /5/ WHILE THIS POLICY PROVIDED FOR
DOCUMENTATION OF THE ABSENCE OF AN EMPLOYEE FROM THE WORK AREA, IT HAD
VIRTUALLY NO EFFECT ON THE CONTROL ON THE AMOUNT OF TIME SPENT ON
REPRESENTATIONAL ACTIVITIES. THUS, STEWARDS CONTINUED TO INSIST UPON
LEAVING THEIR AREAS TO HANDLE MATTERS IN THEIR STEWARD CAPACITY, AND
WOULD FILE CONTRACT GRIEVANCES IF SUCH PERMISSION WERE DENIED. THE
RECORD DISCLOSES THAT THE VOLUME OF CONTRACT GRIEVANCES STEADILY
INCREASED DURING 1974 AND 1975 AND FURTHER THAT THE UNION FILED NUMEROUS
UNFAIR LABOR PRACTICE CHARGES AGAINST THE ACTIVITY BASED UPON THE
CONTROVERSY OVER THE USE OF OFFICIAL TIME BY STEWARDS.
IN APRIL 1975, A JOINT FACT FINDING TEAM COMPOSED OF A MANAGEMENT AND
A UNION REPRESENTATIVE INVESTIGATED THE AMOUNT OF TIME SPENT BY THREE
INDIVIDUALS IDENTIFIED BY MANAGEMENT AS THE MOST FLAGRANT VIOLATORS OF
EXCESSIVE USE OF OFFICIAL TIME TIME FOR UNION ACTIVITIES. THE RESULTS
OF THIS SURVEY WERE ISSUED ON MAY 5, 1975 (RESPONDENT ACTIVITY EXHIBIT
NO. 10). THE INVESTIGATION INDICATED THAT DURING A SIX MONTH PERIOD,
ONE OF THE STEWARDS WAS ENGAGED IN REPRESENTATIONAL DUTIES FOR PERIODS
RANGING FROM 60 PERCENT OF HIS WORK TIME TO 84 PERCENT. ANOTHER STEWARD
ENGAGED IN REPRESENTATIONAL DUTIES DURING A SIMILAR PERIOD FROM A RANGE
OF 88 PERCENT TO 90 PERCENT OF HIS OFFICIAL WORK TIME. THE THIRD
INDIVIDUAL, DURING THE SAME PERIOD, WAS ON REPRESENTATIONAL DUTIES FROM
A LOW OF 41 PERCENT TO A HIGH OF 72 PERCENT OF HIS WORK TIME.
WHEN THE RESULTS OF THE INVESTIGATION WERE MADE KNOWN TO THE UNION,
THE UNION PRESIDENT REJECTED ITS ACCURACY ON THE GROUND THAT THE
REPRESENTATIONAL DUTIES INCLUDED TIME SPENT ON AGENCY GRIEVANCE
PROCEDURES AND OTHER LEGITIMATE EXCUSALS, WHICH COULD NOT BE ATTRIBUTED
TO THEIR UNION RESPONSIBILITIES. THE UNION REJECTED MANAGEMENT'S CLAIM
THAT THE UNION REPRESENTATIVES WERE USING AN UNREASONABLE AMOUNT OF TIME
CONTRARY TO THE CONTRACT REQUIREMENTS.
AS A COUNTERMEASURE TO THE RISING VOLUME OF CHARGES OF CONTRACT
VIOLATIONS AND UNFAIR LABOR PRACTICE CHARGES FILED BY THE UNION, THE
ACTIVITY FILED CHARGES OF CONTRACT VIOLATIONS AGAINST SEVEN DIFFERENT
STEWARDS IN THREE OF THE DIRECTORATES. (RESPONDENT ACTIVITY NO. 11).
AS NOTED, THE UNION CHARGES OF CONTRACT VIOLATIONS WERE RARELY TAKEN
BEYOND THE DIRECTORATE LEVEL, BUT THEIR ADJUDICATION INVOLVED
CONSIDERABLE AMOUNTS OF WORK TIME ON THE PART OF BOTH MANAGEMENT AND THE
UNION STEWARDS. THE PARTIES FINALLY DECIDED TO ENGAGE IN A TRADE-OFF
WHEREBY MANAGEMENT WITHDREW ITS CHARGES AGAINST THE STEWARDS AND THE
UNION IN TURN WITHDREW A NUMBER OF UNFAIR LABOR PRACTICE CHARGES FILED
AGAINST THE ACTIVITY.
D. THE EFFORTS TO RENEGOTIATE THE BASIC COLLECTIVE
BARGAINING AGREEMENT
ON OCTOBER 1974, THE PARTIES BEGAN NEGOTIATIONS ON SUPPLEMENT II OF
THE 1973 AGREEMENT. AMONG OTHER THINGS, MANAGEMENT SUBMITTED DRASTIC
REVISIONS TO ARTICLE VIII-- THE USE OF OFFICIAL TIME FOR
REPRESENTATIONAL PURPOSES. MANAGEMENT PROPOSED THAT 5 PERCENT OF THE
WORK TIME IN A FOUR WEEK PERIOD FOR REPRESENTATIONAL PURPOSES WOULD NOT
BE CONSIDERED AS INTERFERING WITH FEDERAL EMPLOYMENT. BETWEEN 5 AND 10
PERCENT WOULD REQUIRE ATTENTION OF THE UNION PRESIDENT TO MAKE CERTAIN
THAT THE UNION STEWARD INVOLVED DID NOT NEGLECT WORK DUTIES. MORE THAN
10 PERCENT WOULD NOT BE PERMITTED. THE UNION TOOK THE POSITION THAT THE
ONLY STANDARD TO BE APPLIED FOR USE OF OFFICIAL TIME WAS "REASONABLE
TIME," AS CONTAINED IN THE CURRENT AGREEMENT. THE PARTIES ENGAGED IN
EXTENSIVE NEGOTIATIONS ON VARIOUS PROPOSALS AND COUNTERPROPOSALS, BUT
THE USE OF OFFICIAL TIME WAS CONSIDERED AN IMPASSED ITEM ON JULY 1975.
ALTHOUGH THE PARTIES DID SIGN OFF ON A SUPPLEMENT II IN MAY 1975, THEY
DID NOT INCLUDE THE MODIFICATION ON THE USE OF OFFICIAL TIME.
IN SEPTEMBER 1975, THE PARTIES SERVED NOTICE OF INTENT TO RENEGOTIATE
THE ENTIRE BASIC AGREEMENT. THEY ALSO AGREED THAT ALL IMPASSED MATTERS
FROM THE PRIOR NEGOTIATIONS WOULD BE NEGOTIATED ALONG WITH NEW
PROPOSALS. BOTH MANAGEMENT AND THE LABOR ORGANIZATION SUBMITTED
PROPOSALS ON THE AMOUNT OF OFFICIAL DUTY TIME TO BE ALLOWED FOR
REPRESENTATIONAL ACTIVITIES. MANAGEMENT'S PROPOSALS RANGED FROM NO
OFFICIAL TIME TO A MAXIMUM OF FOUR HOURS PER STEWARD PER PAY PERIOD.
THE FOUR HOURS PER PAY PERIOD WERE TO BE NON-CUMULATIVE AND
NON-TRANSFERABLE. AFTER LENGTHY NEGOTIATIONS ON THE USE OF OFFICIAL
TIME AND MANY OTHER PROPOSALS AND COUNTERPROPOSALS, THE PARTIES AGREED
THAT SEVERAL ISSUES INCLUDING THE USE OF OFFICIAL TIME HAS REACHED
IMPASSE. IN AN ATTEMPT TO RESOLVE THE DISPUTE THEY CALLED ON THE
SERVICES OF MEDIATORS FROM THE FEDERAL MEDIATION AND CONCILIATION
SERVICE. THE EFFORTS OF THE MEDIATORS WERE UNSUCCESSFUL, HOWEVER, AND
THE PARTIES WERE DEADLOCKED ON SEVERAL ISSUES INCLUDING THE MATTER OF
THE USE OF OFFICIAL TIME. THEY AGREED IN A MEMORANDUM OF UNDERSTANDING
DATED APRIL 15, 1976, THAT THEY WERE HOPELESSLY DEADLOCKED AND WOULD
CEASE NEGOTIATIONS IN ORDER TO SEEK THE SERVICES OF THE FEDERAL SERVICES
IMPASSES PANEL. (JOINT EXHIBIT NO. 4).
IT SHOULD BE NOTED THAT DURING THE COURSE OF THE NEGOTIATIONS WHICH
COMMENCED IN THE FALL OF 1975, THE PARTIES MUTUALLY AGREED TO TWO
EXTENSIONS OF THE 1973 BASIC AGREEMENT AND ITS SUPPLEMENTS. THE FINAL
EXTENSION TERMINATED ON APRIL 16, 1976-- THE DAY AFTER THE PARTIES
AGREED TO SUBMIT THE IMPASSED ITEMS TO THE PANEL.
IN A MEMORANDUM OF UNDERSTANDING DATED APRIL 21, 1976, THE PARTIES
AGREED TO REMOVE FROM THE IMPASSED ITEMS THE DURATION ARTICLE, AND TO
NEGOTIATE THAT PROVISION IN ORDER TO ARRIVE AT A NEGOTIATED AGREEMENT.
IT WAS THE INTENT OF THE UNDERSTANDING THAT IF THEY COULD NOT AGREE ON
THE DURATION ARTICLE, IT WOULD ALSO BE SUBMITTED TO THE IMPASSES PANEL
ALONG WITH THE OTHER ITEMS. HOWEVER, THE PARTIES WERE ABLE TO AGREE ON
THIS PROVISION AND A NEW AGREEMENT WAS FORWARDED TO HIGHER AUTHORITY OF
THE ACTIVITY FOR REVIEW AND APPROVAL. THE NEGOTIATED AGREEMENT WAS
APPROVED WITHOUT CHANGE AND BECAME EFFECTIVE AS OF MAY 24, 1976. THE
PROVISION RELATING TO THE USE OF OFFICIAL TIME FOR REPRESENTATIONAL
PURPOSES WAS NOT CONTAINED IN THE NEW AGREEMENT AND REMAINED AT IMPASSE.
ALTHOUGH THE PARTIES HAD A WRITTEN UNDERSTANDING THAT ALL IMPASSED
ITEMS WOULD BE SUBMITTED TO THE PANEL, THE ACTIVITY INFORMED THE UNION
PRESIDENT ON APRIL 30 THAT MANAGEMENT COULD MAKE THE UNILATERAL CHANGES
AFTER HAVING ENGAGED IN GOOD FAITH NEGOTIATIONS WHICH RESULTED IN
IMPASSE, PROVIDED THE UNION WAS GIVEN NOTICE AND AN OPPORTUNITY TO
CONSULT AND CONFER REGARDING THE IMPACT OF THE CHANGES ON THE UNIT
EMPLOYEES. (JOINT EXHIBIT NO. 7). MANAGEMENT INFORMED THE UNION THAT
IT PROPOSED TO UNILATERALLY IMPLEMENT ITS LAST OFFER OF FOUR HOURS
OFFICIAL TIME PER PAY PERIOD FOR EACH STEWARD FOR REPRESENTATIONAL
DUTIES. MANAGEMENT ALSO STATED THAT A "JOINT RECORDKEEPING SYSTEM
BETWEEN SUPERVISORS AND EMPLOYEES WILL BE ESTABLISHED TO INSURE ACCURATE
TIMEKEEPING AND TO PREVENT ABUSE OF THE SYSTEM." /6/
IN A LETTER DATED MAY 7, 1976, THE UNION PRESIDENT TOOK ISSUE WITH
MANAGEMENT'S ASSERTED RIGHT TO UNILATERALLY IMPLEMENT THE LAST PROPOSAL
ON THE USE OF OFFICIAL TIME. HE DECLINED TO MEET WITH MANAGEMENT TO
CONSULT OVER THE IMPLEMENTATION. THE UNION STATED THAT THE PARTIES HAD
AGREED TO SUBMIT THE IMPASSED ITEMS TO THE PANEL, AND REQUESTED THAT
MANAGEMENT NOT IMPLEMENT ITS PROPOSALS UNTIL THE PANEL HAD AN
OPPORTUNITY TO ACT. (JOINT EXHIBIT NO. 8).
ON MAY 12, 1976, THE PARTIES SUBMITTED THEIR POSITIONS TO THE
IMPASSES PANEL. THEIR REQUEST FOR ASSISTANCE WAS ACKNOWLEDGED BY THE
PANEL ON MAY 18, 1976, AND THE PARTIES WERE INFORMED THAT A MEMBER OF
THE PANEL STAFF WOULD BE IN TOUCH WITH THEM "SHORTLY". (JOINT EXHIBIT
NO. 12).
ON MAY 20, 1976, THE COMMANDER OF THE ACTIVITY INFORMED THE UNION IN
WRITING THAT MANAGEMENT INTENDED TO IMPLEMENT ITS LAST PROPOSAL
REGARDING THE USE OF OFFICIAL TIME. MANAGEMENT TOOK THE POSITION THAT
THE UNION HAD BEEN OFFERED AN OPPORTUNITY IN ADVANCE TO CONSULT AND
CONFER REGARDING THE IMPACT OF THE IMPLEMENTATION, "BUT DECLINED TO DO
SO." (JOINT EXHIBIT NO. 14). ON THAT SAME DAY, THE COMMANDER ISSUED A
DIRECTIVE TO ALL SUBORDINATE ELEMENTS ADVISING THEM THAT MANAGEMENT'S
LAST PROPOSAL ON THE USE OF OFFICIAL TIME FOR REPRESENTATIONAL PURPOSES
WAS TO BECOME EFFECTIVE IMMEDIATELY. (JOINT EXHIBIT NO. 13). THE
DIRECTIVE STATED THAT THE IMPLEMENTATION WOULD BE AS FOLLOWS:
A. UP TO FOUR HOURS OF OFFICIAL TIME PER PAY PERIOD MAY BE GRANTED
TO UNION STEWARDS TO
PERFORM AUTHORIZED REPRESENTATIONAL FUNCTIONS. SUCH TIME WILL NOT BE
CUMULATIVE FROM ONE PAY
PERIOD TO ANOTHER AND CANNOT BE TRANSFERRED FROM ONE EMPLOYEE TO
ANOTHER.
B. A JOINT RECORDKEEPING SYSTEM BETWEEN THE SUPERVISOR AND EMPLOYEES
MUST BE ESTABLISHED
TO INSURE ACCURATE ACCOUNTING OF OFFICIAL TIME USED.
C. UNION STEWARDS, INCLUDING CHIEF STEWARDS, MAY REQUEST ANNUAL
LEAVE WITHOUT PAY WHEN THE
FOUR HOUR MAXIMUM HAS BEEN REACHED. SUCH REQUEST WILL BE CONSIDERED
UNDER EXISTING CRITERIA
FOR GRANTING ANNUAL LEAVE OR LWOP.
THE DIRECTIVE ALSO INDICATED THAT EMPLOYEES REPRESENTING OTHER
EMPLOYEES UNDER THE AGENCY GRIEVANCE PROCEDURE WOULD BE AUTHORIZED THE
TIME PRESCRIBED BY THAT REGULATION.
ON JUNE 11, 1976 THE DEPUTY DIRECTOR OF THE DISTRIBUTION DIRECTORATE
SENT A MEMO TO KENDRICKS, UNION VICE PRESIDENT FOR DISTRIBUTION,
INFORMING HIM OF THE METHOD BY WHICH THAT DIRECTORATE PLANNED TO
IMPLEMENT THE COMMANDER'S POLICY ON RECORDKEEPING. (JOINT EXHIBIT NO.
20). SOMETIME PRIOR TO THAT DATE, THE LABOR RELATIONS OFFICER OF THE
DIRECTORATE HAD SEVERAL DISCUSSIONS WITH KENDRICKS ON THE SUBJECT OF THE
RECORDKEEPING PROPOSAL (THESE DISCUSSIONS WERE TERMED "BRIEFINGS" BY
KENDRICKS, BUT WERE CONSIDERED "CONSULTATION" BY MANAGEMENT). /7/ ON
JUNE 28, THE RECORDKEEPING PROPOSAL FOR THE DIRECTORATE OF DISTRIBUTION
WAS OFFICIALLY PUT INTO EFFECT BY WAY OF A MEMORANDUM. (JOINT EXHIBIT
NO. 22). IT WAS STATED THAT A LOG BOOK WOULD BE MAINTAINED BY THE
SUPERVISOR AND HIS COUNTERPART STEWARD. EACH TIME A STEWARD WAS
REQUIRED TO LEAVE HIS WORK AREA FOR REPRESENTATIONAL DUTIES, THE ABSENCE
WOULD BE ENTERED INTO THE LOG AND INITIALED BY BOTH THE STEWARD AND THE
SUPERVISOR. SUPERVISORS WERE CAUTIONED TO INSURE THAT NO MORE THAN FOUR
HOURS OFFICIAL TIME WAS USED BY A STEWARD IN ONE PAY PERIOD. THE
MEMORANDUM NOTED THAT THE PROCEDURE DID NOT "OBVIATE THE REQUIREMENTS OF
THE EMPLOYEE CONTROL POLICY INSTITUTED ON MARCH 12, 1976. THIS DOCUMENT
WAS SUBSEQUENTLY AMENDED ON JULY 2, 1976 TO REFLECT A CHANGE REQUESTED
BY KENDRICKS. THE CHANGE INDICATED THAT A SINGLE LOG BOOK WOULD BE
MAINTAINED BY THE IMMEDIATE SUPERVISOR AND THE STEWARD. (JOINT EXHIBIT
NO. 23).
ALTHOUGH KENDRICKS MADE A RECOMMENDATION REGARDING THE RECORDKEEPING
PROCEDURES WHICH WAS ADOPTED BY MANAGEMENT, THE UNION TOOK THE OFFICIAL
POSITION THAT THE ENTIRE SUBJECT MATTER OF THE RECORDKEEPING WAS
NEGOTIABLE AND SHOULD BE APPLIED ACTIVITY-WIDE. MANAGEMENT DISAGREED
AND TOOK THE POSITION THAT IT COULD ONLY BE NEGOTIATED DURING THE "OPEN
PERIOD" OF THE CONTRACT. SINCE THIS HAD EXPIRED AND A NEW AGREEMENT WAS
IN EFFECT, MANAGEMENT WAS OF THE VIEW THAT THE UNION ONLY HAD THE RIGHT
TO BE "CONSULTED" PRIOR TO THE RECORDKEEPING POLICY BEING IMPLEMENTED.
ALTHOUGH THE IMPASSED ITEMS WERE BEFORE THE FEDERAL SERVICES IMPASSES
PANEL, THE PARTIES DID NOT HAVE A HEARING. A REPRESENTATIVE FROM THE
PANEL CAME TO THE ACTIVITY AND MET WITH THE PARTIES. AFTER INTENSIVE
NEGOTIATIONS UNDER HIS SUPERVISION, THE PARTIES FINALLY ARRIVED AT AN
AGREEMENT ON THE IMPASSED ITEMS. REGARDING THE USE OF OFFICIAL TIME FOR
REPRESENTATIONAL DUTIES, THE PARTIES AGREED THAT A STEWARD WOULD BE
ALLOWED UP TO A MAXIMUM OF FOUR HOURS OF OFFICIAL DUTY TIME PER PAY
PERIOD FOR PERFORMANCE OF REPRESENTATIONAL DUTIES, WITH CERTAIN
EXCEPTIONS FROM THAT FOUR HOUR LIMITATION. AS A RESULT OF THESE
EFFORTS, THE PARTIES JOINTLY WITHDREW THEIR REQUEST FOR ASSISTANCE FROM
THE PANEL ON NOVEMBER 18, 1976. (JOINT EXHIBIT 27).
CONTENTIONS OF THE PARTIES
THE UNION, IN A WELL WRITTEN BRIEF, CONTENDS THAT THE PARTIES HAD
MUTUALLY AGREED TO SUBMIT THE IMPASSED ITEMS TO THE FEDERAL SERVICES
IMPASSES PANEL AND DID SO. IT ASSERTS THAT THE SUBSEQUENT UNILATERAL
ACTION BY THE ACTIVITY REGARDING THE IMPASSED PROVISION ON THE USE OF
OFFICIAL TIME-- TWO WEEKS AFTER THE SUBMISSION TO THE PANEL-- VIOLATED
THE REQUIREMENTS OF THE EXECUTIVE ORDER AS THE ACTIVITY FAILED TO ALLOW
THE PROCESSES OF THE PANEL TO RUN ITS COURSE. CONCERNING THE
IMPLEMENTATION OF THE RECORDKEEPING PROCEDURES IN THE DIRECTORATE OF
DISTRIBUTION, THE UNION CONTENDS THAT THE COMMANDER'S POLICY HAD
BASE-WIDE APPLICATION. THEREFORE, IT WAS SUBJECT TO NEGOTIATION AT THE
COMMAND LEVEL BEFORE IMPLEMENTATION IN ANY FORM BY SUBORDINATE
DIRECTORATES.
THE RESPONDENT ACTIVITY SUBMITTED A LENGTHY BUT WELL RESEARCHED AND
THOROUGH BRIEF. ESSENTIALLY, HOWEVER, THE ACTIVITY ARGUES THAT THE
NEGOTIATED AGREEMENT AND ITS EXTENSIONS HAD EXPIRED, AND THE PARTIES HAD
BARGAINED TO IMPASSE. THEREFORE, MANAGEMENT WAS FREE TO IMPLEMENT ITS
PROPOSAL ON THE LIMITATION OF THE USE OF OFFICIAL TIME; PROVIDED IT DID
NOT EXCEED THE SCOPE OF THE OFFER MADE DURING NEGOTIATIONS, AND PROVIDED
FURTHER THAT THE UNION WAS GIVEN NOTIFICATION IN ADVANCE TO ENABLE IT TO
CONSULT AND CONFER ON THE IMPLEMENTATION. THE ACTIVITY ASSERTS THAT THE
ALLEGED EXCESSIVE USE OF OFFICIAL TIME BY THE UNION REPRESENTATIVES
CONSTITUTED A OVERRIDING EXIGENCY WHICH GAVE IT THE RIGHT TO ACT, EVEN
THOUGH THE MATTER WAS BEFORE THE PANEL. REGARDING THE PROCEDURES ON
RECORDKEEPING IN THE DIRECTORATE OF DISTRIBUTION, THE ACTIVITY CONTENDS
THAT THE TERMS OF THE AGREEMENT MAKE IT A "CLOSED" CONTRACT, I.E., THE
PARTIES CAN ONLY NEGOTIATE DURING THE ANNIVERSARY DATE OF THE AGREEMENT,
AND AT ALL OTHER TIMES ARE ONLY REQUIRED TO ENGAGE IN "CONSULTATION".
ON THIS THEORY, THE ACTIVITY CONTENDS THAT THE ONLY REQUIREMENT ON THE
MATTER OF RECORDKEEPING IS THAT THE UNION REPRESENTATIVES BE INFORMED IN
ADVANCE AND PROVIDED AN OPPORTUNITY TO CONSULT WITH MANAGEMENT ON THE
PROPOSAL. AFTER SUCH CONSULTATION, MANAGEMENT IS FREE TO IMPLEMENT ITS
PROPOSAL WHILE GIVING DUE REGARD TO THE INPUT FROM THE UNION.
CONCLUDING FINDINGS
THE BASIC ISSUE IN CASE NO. 40-7514, IN MY JUDGMENT, IS WHETHER THE
ACTIVITY WAS PRIVILEGED TO UNILATERALLY IMPLEMENT THE LIMITATION ON THE
USE OF OFFICIAL TIME FOR REPRESENTATIONAL PURPOSES AFTER LENGTHY
NEGOTIATIONS ON THE SUBJECT TO THE POINT IMPASSE, AFTER HAVING SUBMITTED
THE ISSUE TO THE FEDERAL SERVICES IMPASSES PANEL, BUT PRIOR TO ALLOWING
THAT FORUM TO ACT ON THE SUBJECT MATTER. THE ACTIVITY CITES A PLETHORA
OF CASES IN THE PRIVATE SECTOR SUPPORTING THE PROPOSITION THAT AN
EMPLOYER MAY UNILATERALLY IMPLEMENT PROPOSALS MADE DURING NEGOTIATIONS
WHEN THE PARTIES HAVE BARGAINED TO A GENUINE IMPASSE, AND THE UNION HAS
BEEN INFORMED OF THE INTENTION TO CARRY OUT SUCH IMPLEMENTATION. WHILE
COURT AND NATIONAL LABOR RELATION BOARD CASES IN THE PRIVATE SECTOR ARE
NOT CONTROLLING, THE ASSISTANT SECRETARY HAS LOOKED UPON SUCH DECISIONS
FOR GUIDANCE IN SIMILAR SITUATIONS IN THE PUBLIC SECTOR. HOWEVER, I AM
NOT PERSUADED THAT THESE CASES HAVE APPLICATION HERE, NOR DO THEY
PROVIDE MEANINGFUL GUIDANCE IN THE INSTANT CASES.
IN NONE OF THE CITED CASES DEALING WITH THE PRIVATE SECTOR IS THERE
ANY INDICATION THAT THE PARTIES AGREED TO INVOKE THIRD-PARTY ASSISTANCE
IN SETTLING THEIR DISPUTES. RATHER, THE PARTIES ENGAGED IN GOOD FAITH
NEGOTIATIONS TO IMPASSE AND THEN RESORTED TO SELF-HELP IN THE FORM OF
UNILATERAL IMPLEMENTATION, LOCKOUT OR STRIKE. THIS IS THE
DISTINGUISHING FEATURE WHICH CAUSES ME TO REJECT THESE CASES AS
MEANINGFUL INDICATORS IN RESOLVING THE ISSUES HERE.
IN THE INSTANT CASE THE PARTIES MUTUALLY AGREED, IN A SIGNED
UNDERSTANDING, TO SUBMIT IMPASSED ISSUES TO THE FEDERAL SERVICES
IMPASSES PANEL FOR APPROPRIATE ACTION; AND DID IN FACT FOLLOW THROUGH
WITH THIS PROCEDURE. ALTHOUGH THERE IS NOTHING IN SECTION 17 OF THE
EXECUTIVE ORDER WHICH MANDATES THAT PARTIES TAKE THEIR IMPASSED DISPUTES
TO THE PANEL, THE ASSISTANT SECRETARY HAS HELD THAT ONCE THE SERVICES OF
THE PANEL ARE REQUESTED, IT EFFECTUATES "THE PURPOSES OF THE ORDER TO
REQUIRE THAT THE PARTIES MUST, IN THE ABSENCE OF AN OVERRIDING EXIGENCY,
MAINTAIN THE STATUS QUO AND PERMIT THE PROCESSES OF THE PANEL TO RUN ITS
COURSE BEFORE A UNILATERAL CHANGE IN TERM OR CONDITIONS OF EMPLOYMENT
CAN BE EFFECTUATED." U.S. ARMY CORPS OF ENGINEERS, PHILADELPHIA
DISTRICT, A/SLMR NO. 673. WHILE THE ACTIVITY ATTEMPTS TO DISTINGUISH
THE CORPS OF ENGINEERS CASE, I FIND IT TO BE COMPLETELY APPOSITE TO THE
FACTS DEVELOPED ON THE RECORD HERE. THEREFORE, IN THE ABSENCE OF A
PERSUASIVE SHOWING THAT THE ACTIVITY WAS CONFRONTED WITH AN "OVERRIDING
EXIGENCY", THE UNILATERAL IMPLEMENTATION OF THE LIMITATION ON THE USE OF
OFFICIAL TIME FOR REPRESENTATIONAL PURPOSES, WHILE THE MATTER WAS BEFORE
THE PANEL, IS A VIOLATION OF THE EXECUTIVE ORDER. TO HOLD OTHERWISE
MEANS THAT THE EXECUTIVE ORDER OFFERS AN EMPTY METHOD OF SETTLING
IMPASSED DISPUTES. PARTIES WOULD BE FREE TO INVOKE THE SERVICES OF THE
PANEL AND THEN BLITHLY ENGAGE IN UNILATERAL CONDUCT BEFORE THE PANEL HAD
AN OPPORTUNITY TO ACT. RATHER THAN STABILIZE LABOR RELATIONS, THIS
WOULD RESULT IN INCREASED DISHARMONY. IN MY OPINION, THIS WAS NOT THE
INTENT OR THE PURPOSE OF THE FRAMERS OF THE ORDER.
THE ONLY JUSTIFICATION FOR THE UNILATERAL CONDUCT BY THE ACTIVITY
HERE, BASED ON THE CORPS OF ENGINEERS CASE, WOULD BE THAT IT WAS
CONFRONTED WITH AN OVERRIDING EXIGENCY WHICH REQUIRED IMMEDIATE ACTION.
IN MY VIEW, THE ACTIVITY HAS NOT ESTABLISHED A CASE OF SUCH AN EMERGENCY
NATURE. THERE CAN BE NO DOUBT THAT THE PROBLEM WAS ONE OF LONG-STANDING
AND MANAGEMENT'S CONCERN WAS GENUINE AND LEGITIMATE. INDEED, SOUND
MANAGEMENT PRACTICES REQUIRED, EVEN MANDATED, THAT CORRECTIVE ACTION BE
TAKEN. BUT THERE WAS NOTHING TO SUGGEST THAT THE SITUATION, WHICH HAD
EXISTED AT LEAST SINCE 1970, REQUIRED IMMEDIATE CHANGES IN PERSONNEL
POLICIES AND PRACTICES. DEPARTMENT OF INTERIOR, BUREAU OF RECLAMATION,
YUMA PROJECTS OFFICE, YUMA, ARIZONA, A/SLMR NO. 401. IN PROPOSING
DEFINED LIMITATIONS DURING THE 1974 AND 1975 NEGOTIATIONS, MANAGEMENT
WAS TAKING POSITIVE AND PERMISSIBLE ACTIONS TO CORRECT THE PROBLEM
WITHIN THE SPIRIT AND INTENT OF THE EXECUTIVE ORDER. THERE HAS BEEN NO
SHOWING ON THIS RECORD OF ANY MAJOR CHANGE IN CIRCUMSTANCES AT THE
ACTIVITY WHICH HAD NOT PREVAILED SINCE THE PROBLEM FIRST AROSE. THE
ONLY THING THAT CAN BE CITED IS ITS CONTINUED EXISTENCE OVER THE PERIOD
OF YEARS. THEREFORE, MANAGEMENT, HAVING PUT INTO MOTION THE PROCESSES
OF THE IMPASSES PANEL, MUST BE CONSIDERED TO HAVE ACTED PRECIPITOUSLY IN
FAILING TO ALLOW THAT FORUM AN OPPORTUNITY TO CARRY OUT ITS FUNCTIONS
UNDER THE EXECUTIVE ORDER.
ACCORDINGLY, I FIND THAT THE ACTIVITY HAS FAILED TO ESTABLISH BY A
PREPONDERANCE OF THE EVIDENCE THAT THE SITUATION REGARDING THE EXCESSIVE
USE OF OFFICIAL TIME WAS OF SUCH AN OVERRIDING AND EMERGENCY NATURE THAT
IT WARRANTED UNILATERAL ACTION, WHILE THE VERY MATTER WAS BEFORE THE
IMPASSES PANEL. I FURTHER FIND THAT THE CONDUCT OF THE ACTIVITY IN THIS
REGARD VIOLATED THE OBLIGATIONS IMPOSED UPON IT BY SECTION 19(A)(6) OF
THE EXECUTIVE ORDER. I ALSO FIND AND CONCLUDE THAT SUCH CONDUCT
VIOLATED SECTION 19(A)(1) OF THE EXECUTIVE ORDER AS IT INTERFERRED WITH,
RESTRAINED, AND COERCED UNIT EMPLOYEES IN THEIR RIGHT TO HAVE THEIR
EXCLUSIVE REPRESENTATIVE ACT FOR AND REPRESENT THEIR INTEREST IN MATTERS
CONCERNING GRIEVANCES, PERSONNEL POLICIES AND PRACTICES AS ASSURED BY
SECTION 10(E) OF THE ORDER. SAN ANTONIO AIR LOGISTICS CENTER, SAN
ANTONIO AIR MATERIAL AREA (AFLC), KELLY AIR FORCE BASE, TEXAS, A/SLMR
NO. 540. HOWEVER, I DO NOT FIND THAT THIS CONDUCT VIOLATES SECTION
19(A)(2) OF THE ORDER. THERE IS NOTHING HERE WHICH SUGGESTS THAT THE
CONDUCT SERVED TO ENCOURAGE OR DISCOURAGE MEMBERSHIP IN THE UNION BY
DISCRIMINATION IN REGARD TO HIRE, TENURE, PROMOTION, OR OTHER CONDITION
OF EMPLOYMENT. ACCORDINGLY, THIS ALLEGATION OF THE COMPLAINT MUST BE
DISMISSED.
MY CONCLUSIONS IN THIS REGARD ARE NOT AFFECTED BY THE ACTIVITY'S
RELIANCE ON THE FACT THAT THE NEGOTIATED AGREEMENT AND ITS EXTENSIONS
HAD EXPIRED. IT HAS BEEN HELD THAT "ONLY THESE RIGHTS AND PRIVILEGES
WHICH ARE BASED SOLELY ON THE EXISTENCE OF A WRITTEN AGREEMENT-- E.G.,
CHECKOFF PRIVILEGES-- " TERMINATE WITH THE EXPIRATION OF A NEGOTIATED
AGREEMENT. INTERNAL REVENUE SERVICES, OGDEN SERVICE CENTER, INTERNAL
REVENUE SERVICES, ET AL, A/SLMR NO. 806. THE ASSISTANT SECRETARY IN
THE INTERNAL REVENUE CASE HELD THAT "OTHER RIGHTS AND PRIVILEGES
ACCORDED TO EXCLUSIVE REPRESENTATIVES CONTINUE IN EFFECT UNTIL SUCH TIME
AS THEY ARE MODIFIED OR ELIMINATED PURSUANT TO NEGOTIATIONS OR CHANGE
AFTER A GOOD FAITH BARGAINING IMPASSE HAS BEEN REACHED." /8/ ALTHOUGH
THE PARTIES HAD REACHED IMPASSE ON THE ISSUES HERE, THEY HAD OBLIGATED
THEMSELVES TO USE THE SERVICES OF THE IMPASSES PANEL. THUS, THEY WERE
NOT FREE TO ENGAGE IN UNILATERAL SELF-HELP ACTION UNTIL THE PANEL'S
PROCESSES HAD BEEN ALLOWED TO RUN ITS COURSE.
TURNING TO THE ALLEGED VIOLATIONS RELATING TO THE RECORDKEEPING
PROCEDURES IMPLEMENTED IN THE DIRECTORATE OF DISTRIBUTION (CASE NO.
40-7585), I FIND THAT THIS CONDUCT DID NOT VIOLATE THE PROVISIONS OF THE
EXECUTIVE ORDER. THE RECORD DISCLOSES THAT THE CHIEF UNION
REPRESENTATIVE FOR THAT DIRECTORATE WAS NOTIFIED OF THE PROPOSED
PROCEDURES BY DIRECTORATE-LEVEL MANAGEMENT PRIOR TO ITS IMPLEMENTATION.
MOREOVER HIS INPUT AND SUGGESTIONS WERE SOUGHT. ALTHOUGH THE UNION TOOK
THE POSITION THAT THESE DISCUSSIONS CONSTITUTED A "BRIEFING" AND
MANAGEMENT CONSIDERED THEM TO BE "CONSULTATION" UNDER THE NEWLY
EFFECTIVE NEGOTIATED AGREEMENT, THE FINAL RECORDKEEPING PROCEDURES
ISSUED BY MANAGEMENT INCORPORATED RECOMMENDATIONS MADE BY THE UNION
REPRESENTATIVE. WHILE THE OFFICIAL UNION POSITION IS THAT THE
RECORDKEEPING PROCEDURES WERE APPLICABLE BASE-WIDE AND REQUIRED
NEGOTIATION AT THE COMMAND LEVEL, IT WAS ONLY DEVISED, DISCUSSED AND
IMPLEMENTED IN THE DIRECTORATE OF DISTRIBUTION.
ARTICLE III OF THE NEGOTIATED AGREEMENT SETS FORTH INSTANCES IN WHICH
THE PARTIES WOULD ENGAGE IN CONSULTATION AND NEGOTIATIONS. SECTION B OF
THAT ARTICLE PROVIDES:
ANY MATTER WHICH AFFECTS THE WORKING CONDITIONS OR PERSONNEL POLICIES
OF THE UNIT(S) WHICH
IS WITHIN THE DISCRETION OF THE EMPLOYER AND NOT INCLUDED AS A PART
OF, OR PRECLUDED BY, THE
AGREEMENT, AND APPROPRIATE FOR CONSULTATION OR NEGOTIATION, WILL NOT
BE CHANGED BY THE
EMPLOYER UNTIL THE UNION HAS BEEN CONSULTED. IF THE PROPOSED CHANGE
IS IN CONFLICT WITH THIS
AGREEMENT, THE EMPLOYER WILL GIVE THE UNION ADEQUATE ADVANCE NOTICE
AND THE OPPORTUNITY TO
NEGOTIATE.
SECTION E OF THAT SAME ARTICLE CONTAINS THE FOLLOWING LANGUAGE:
THE APPROPRIATE REPRESENTATIVE OF THE EMPLOYER SHALL CONSULT WITH THE
APPROPRIATE STEWARD,
CHIEF STEWARD, OR OTHER UNION OFFICIAL ON PROPOSED CHANGES AND
PRACTICES, POLICIES, PROCEDURES
AND WORKING CONDITIONS WITHIN THE DISCRETION OF THE EMPLOYER WHICH
WILL AFFECT EMPLOYEES IN
THE BARGAINING UNITS. IT IS AGREED THAT BOTH THE EMPLOYER AND THE
UNION WILL CONSULT AT THE
APPROPRIATE DECISION-MAKING LEVEL . . . ONCE CONSULTED AT THAT
LEVEL, IT SHALL BE CONSIDERED
THAT THE REQUIREMENT TO CONSULT HAS BEEN COMPLIED WITH . . .
SECTION 48 OF THE NEGOTIATED AGREEMENT DEFINES CERTAIN TERMS USED IN
THE AGREEMENT, AND THE DEFINITION OF CONSULTATION IS AS FOLLOWS:
(2) CONSULTATION: THE INTERCHANGE OF FACTS AND OPINIONS, VERBAL OR
WRITTEN, TO OBTAIN THE
VIEWS OF APPROPRIATE UNION OFFICIALS, PRIOR TO IMPLEMENTATION OF
PROPOSED PERSONNEL POLICIES,
PRACTICES AND PROCEDURES RELATING TO WORKING CONDITIONS WITHIN THE
DISCRETION OF THE COMMANDER
WHICH ARE NOT SPECIFICALLY COVERED BY THE LABOR AGREEMENT. IT IS
UNDERSTOOD THAT AFTER
CONSULTATION AND CONSIDERATION OF THE VIEWS OF THE UNION BY THE
EMPLOYER, THE CONCURRENCE OF
THE UNION IS NOT NECESSARY FOR IMPLEMENTATION BY THE EMPLOYER, UNLESS
OTHERWISE AGREED IN A
PARTICULAR ARTICLE.
WITHOUT PASSING UPON THE QUESTION OF WHETHER THE VICE PRESIDENT OF
THE UNION AND HIS MANAGEMENT COUNTERPART IN THE DIRECTORATE OF
DISTRIBUTION HAD ENGAGED IN CONSULTATION WITHIN THE MEANING OF THE TERMS
OF THE NEGOTIATED AGREEMENT, PRIOR TO THE IMPLEMENTATION OF THE
RECORDKEEPING PROCEDURES, IT IS EVIDENT THAT THERE IS AN ARGUABLE BASIS
FOR MANAGEMENT'S POSITION-- THAT CONSULTATION RATHER THAN NEGOTIATION
WAS ALL THAT WAS REQUIRED IN THIS INSTANCE. AT THE VERY MOST, THE ISSUE
BETWEEN THE PARTIES ON THIS ASPECT OF THE CASE INVOLVES DIFFERING AND
ARGUABLE INTERPRETATIONS OF THE NEGOTIATED AGREEMENT RATHER THAN AN
ACTION WHICH CONSTITUTES A CLEAR UNILATERAL BREECH OF THE AGREEMENT.
/9/ I FIND, THEREFORE, THAT THE ISSUE INVOLVING THE RECORDKEEPING
PROCEDURES AND THEIR IMPLEMENTATION IN THE DIRECTORATE OF DISTRIBUTION
IS ESSENTIALLY ONE OF DIFFERING INTERPRETATIONS OF THE PARTIES RIGHTS
AND OBLIGATIONS UNDER THE NEGOTIATED AGREEMENT AND NOT A CLEAR
UNILATERAL BREECH OF THAT AGREEMENT. /10/ ACCORDINGLY, THE ALLEGATIONS
CONTAINED IN CASE NO. 40-7585 RELATING TO THE IMPLEMENTATION OF THE
RECORDKEEPING PROCEDURES IN THE DIRECTORATE OF DISTRIBUTION SHOULD BE
DISMISSED IN THEIR ENTIRETY.
REMEDY
THE UNION URGES AS PART OF THE APPROPRIATE RELIEF THAT THE PARTIES BE
PLACED IN STATUS QUO ANTE FOR THE PERIOD COMMENCING WITH THE DATE OF THE
UNILATERAL IMPOSITION OF THE FOUR HOUR LIMITATION ON USE OF OFFICIAL
TIME UNTIL THE AGREEMENT WAS REACHED THROUGH THE SERVICES OF THE
IMPASSES PANEL. AS NOTED HEREIN, THE PARTIES FINALLY RESOLVED THEIR
DIFFERENCES WITH THE ASSISTANCE OF THE PANEL, AND EXECUTED AN AGREEMENT
RELATING TO A LIMITATION ON THE AMOUNT OF OFFICIAL TIME FOR
REPRESENTATIONAL PURPOSES. IN VIEW OF THIS DEVELOPMENT, I FIND THAT A
STATUS QUO ANTE REMEDY IS NOT APPROPRIATE FOR THE CIRCUMSTANCES
PRESENTED BY THIS CASE. U.S. ARMY CORPS OF ENGINEERS, PHILADELPHIA
DISTRICT, SUPRA. MOREOVER, THERE IS NO PROBATIVE EVIDENCE IN THE RECORD
WHICH WOULD SUPPORT AN ADJUSTMENT OF ANY TIME LOST BY UNION STEWARDS
DURING THIS PERIOD.
HAVING FOUND THAT THE RESPONDENT ACTIVITY HAS ENGAGED IN CONDUCT
WHICH VIOLATES SECTION 19(A)(1) AND (6), I SHALL RECOMMEND THAT THE
ASSISTANT SECRETARY ADOPT THE FOLLOWING RECOMMENDED ORDER DESIGNED TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED.
RECOMMENDED ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS PROMULGATED THEREUNDER, THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS HEREBY
ORDERS THAT WARNER ROBINS AIR LOGISTICS CENTER, ROBINS AIR FORCE BASE,
WARNER ROBINS, GEORGIA, SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY CHANGING POLICIES OR REGULATIONS ON MATTERS WHICH
HAVE BEEN BARGAINED TO
IMPASSE DURING COLLECTIVE BARGAINING NEGOTIATIONS AND WHICH HAVE BEEN
SUBMITTED TO THE FEDERAL
SERVICES IMPASSES PANEL, INCLUDING LIMITATIONS ON THE USE OF OFFICIAL
TIME FOR
REPRESENTATIONAL PURPOSES, UNTIL THE PROCESSES OF THE IMPASSES PANEL
HAVE BEEN ALLOWED TO RUN
THEIR COURSE.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR 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 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987,
AFL-CIO, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE, THAT MANAGEMENT WILL NOT UNILATERALLY
IMPLEMENT MATTERS WHICH HAVE
BEEN BARGAINED TO IMPASSE DURING COLLECTIVE BARGAINING NEGOTIATIONS
AND WHICH HAVE BEEN
SUBMITTED TO THE FEDERAL SERVICES IMPASSES PANEL, INCLUDING
LIMITATIONS ON THE USE OF OFFICIAL
TIME FOR REPRESENTATIONAL PURPOSES BY UNION REPRESENTATIVES, UNTIL
THE PROCESSES OF THE
IMPASSES PANEL HAVE BEEN ALLOWED TO RUN ITS COURSE.
(B) POST AT ITS FACILITY AT WARNER ROBINS AIR LOGISTIC CENTER, ROBINS
AIR FORCE BASE,
WARNER ROBINS, 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 COMMANDING OFFICER, WARNER
ROBINS AIR LOGISTIC CENTER,
ROBINS AIR FORCE BASE, WARNER ROBINS, GEORGIA, AND SHALL BE POSTED
AND MAINTAINED BY HIM FOR
SIXTY (60) CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES,
INCLUDING ALL PLACES WHERE
NOTICES OF EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDING OFFICER
SHALL TAKE REASONABLE
STEPS TO ENSURE 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 TWENTY (20) DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS
HAVE BEEN TAKEN TO COMPLY
HEREWITH.
GORDON J. MYATT
ADMINISTRATIVE LAW JUDGE
DATED: 4 MAY 1977
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS AND IN ORDER TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
AMENDED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT UNILATERALLY IMPLEMENT MATTERS WHICH HAVE BEEN BARGAINED
TO IMPASSE DURING COLLECTIVE BARGAINING NEGOTIATIONS WITH AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987, AFL-CIO, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE, AND SUBMITTED TO THE FEDERAL SERVICES IMPASSES
PANEL, INCLUDING LIMITATIONS ON THE USE OF OFFICIAL TIME BY UNION
REPRESENTATIVES FOR REPRESENTATIONAL PURPOSES, UNTIL THE PROCESSES OF
THE IMPASSES PANEL HAVE BEEN ALLOWED TO RUN ITS COURSE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
AMENDED.
WE WILL NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
987, AFL-CIO, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, THAT WE WILL NOT
ENGAGE IN THE CONDUCT STATED ABOVE.
(AGENCY OR ACTIVITY)
DATED . . . BY . . .
(SIGNATURE)
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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL ADMINISTRATOR 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 ALLEGED VIOLATIONS ARE BASED ON FACTS COMMON TO BOTH
COMPLAINTS. MANY OF THE ESSENTIAL FACTS HAVE BEEN JOINTLY STIPULATED BY
THE PARTIES AND ARE CONTAINED IN THE RECORD AS JOINT EXHIBIT NO. 1.
/2/ IN SOME INSTANCES THE VICE PRESIDENT OF A MAJOR DIRECTORATE ALSO
FUNCTIONS AS CHIEF STEWARD.
/3/ EACH OF THE MAJOR DIRECTORATES HAS A LABOR RELATIONS OFFICER WHO
PROVIDES GUIDANCE TO THE DIRECTOR OR THE DEPUTY DIRECTOR OF THAT
DIRECTORATE IN LABOR-MANAGEMENT PROBLEMS AND INTERPRETATIONS OF THE
NEGOTIATED AGREEMENT. THE DIRECTORATE LABOR RELATIONS OFFICERS RECEIVE
THEIR GUIDANCE FROM THE LABOR RELATIONS OFFICER OF THE ACTIVITY, WHO IS
THE DESIGNEE OF THE COMMANDER IN LABOR-MANAGEMENT MATTERS.
/4/ SEE RESPONDENT ACTIVITY EXHIBIT NOS. 8(A)-(G) FOR TYPICAL
EXAMPLES OF THIS TYPE OF GRIEVANCE.
/5/ JOINT EXHIBIT NO. 29.
/6/ THE OTHER PROVISION THAT MANAGEMENT INTENDED TO UNILATERALLY
IMPLEMENT RELATED TO THE HOURS OF WORK OF PROFESSIONAL NURSES. AS THIS
IS NOT AN ISSUE IN THESE CONSOLIDATED CASES, THE MATTER WILL NOT BE
DISCUSSED HEREIN.
/7/ JOINT EXHIBIT NOS. 19 AND 21.
/8/ INTERNAL REVENUE SERVICES, OGDEN SERVICE CENTER, SUPRA; U.S.
ARMY CORPS OF ENGINEERS, PHILADELPHIA DISTRICT, SUPRA.
/9/ AEROSPACE GUIDANCE AND METEOROLOGY CENTER, NEWARK AIR FORCE
STATION, NEWARK, OHIO, A/SLMR NO. 677; DEPARTMENT OF ARMY, WATERVLIET
ARSENAL, WATERVLIET, NEW YORK, A/SLMR NO. 624; FEDERAL AVIATION
ADMINISTRATION MUSKEGON AIR TRAFFIC CONTROL TOWER, A/SLMR NO. 534.
/10/ AEROSPACE GUIDANCE AND METEROLOGY CENTER, NEWARD AIR FORCE
STATION, NEWARD, OHIO, SUPRA.
7 A/SLMR 911; P. 856; CASE NO. 40-07852(RO); SEPTEMBER 30, 1977.
SEPTEMBER 30, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND DIRECTION OF ELECTION OF THE
ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
GENERAL SERVICES ADMINISTRATION,
REGION 4
A/SLMR NO. 911
THIS CASE INVOLVED A REPRESENTATION PETITION FILED BY THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1766 (NFFE) SEEKING A UNIT OF ALL
FEDERAL PROTECTIVE OFFICERS AND GUARDS EMPLOYED BY THE GENERAL SERVICES
ADMINISTRATION, REGION 4 (ACTIVITY). THE ACTIVITY TOOK THE POSITION
THAT THE ONLY APPROPRIATE UNIT WOULD CONSIST OF A REGION-WIDE RESIDUAL
UNIT OF ALL GSA EMPLOYEES NOT COVERED BY CURRENT NEGOTIATED AGREEMENTS.
THE ASSISTANT SECRETARY FOUND THAT THE UNIT SOUGHT WAS APPROPRIATE
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. IN THIS REGARD, HE NOTED THAT
THE PETITIONED FOR UNIT WAS A FUNCTIONALLY DISTINCT GROUP OF EMPLOYEES
WHO SHARED A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND
DISTINCT FROM THE OTHER EMPLOYEES OF THE ACTIVITY AS THE EMPLOYEES IN
THE CLAIMED UNIT SHARED A COMMON MISSION, PERFORMED THE SAME JOB
FUNCTIONS, RECEIVED SPECIALIZED TRAINING, WORE UNIFORMS AND, IF
QUALIFIED, CARRIED FIREARMS IN THE PERFORMANCE OF THEIR DUTIES. THE
ASSISTANT SECRETARY FURTHER NOTED THAT THE ESTABLISHMENT OF SUCH A UNIT
WOULD PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS
INASMUCH AS THE UNIT HAD BEEN PREVIOUSLY REPRESENTED BY ANOTHER LABOR
ORGANIZATION, AND THERE WAS NO EVIDENCE THAT THE SCOPE AND CHARACTER OF
THIS PRE-EXISTING UNIT HAD CHANGED SUBSEQUENT TO ITS INITIAL
CERTIFICATION.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED AN ELECTION IN THE UNIT
FOUND APPROPRIATE.
GENERAL SERVICES ADMINISTRATION,
REGION 4
ACTIVITY
CASE NO. 40-07852(RO)
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1766
PETITIONER
DECISION AND DIRECTION OF ELECTION
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER ANNETTE ALLEN.
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, INCLUDING THE BRIEF FILED
BY THE PETITIONER, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
1766, HEREINAFTER CALLED NFFE, SEEKS AN ELECTION IN A UNIT OF ALL
FEDERAL PROTECTIVE OFFICERS (FPOS) AND GUARDS EMPLOYED BY THE GENERAL
SERVICES ADMINISTRATION (GSA), REGION 4, EXCLUDING PROFESSIONAL
EMPLOYEES, MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL
WORK IN OTHER THAN A PURELY CLERICAL CAPACITY AND SUPERVISORS AS DEFINED
IN THE ORDER. /1/ THE ACTIVITY CONTENDS THAT THE PETITIONED FOR UNIT 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 DISTINCT FROM OTHER EMPLOYEES OF REGION 4 OF THE
GSA; SUCH A UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS; AND THE INTENT OF THE FEDERAL LABOR RELATIONS
COUNCIL TO ESTABLISH BROADER AND MORE COMPREHENSIVE UNITS WOULD NOT BE
EFFECTUATED BY ESTABLISHING THE PROPOSED UNIT. IT FURTHER ASSERTS THAT
THE ONLY APPROPRIATE UNIT WOULD CONSIST OF A REGION-WIDE RESIDUAL UNIT
OF ALL GSA REGION 4 EMPLOYEES NOT COVERED BY CURRENT NEGOTIATED
AGREEMENTS. /2/
THE ACTIVITY, HEADQUARTERED IN ATLANTA, GEORGIA, AND COVERING AN
EIGHT STATE AREA, /3/ IS ORGANIZATIONALLY COMPRISED OF FOUR SERVICES:
PUBLIC BUILDINGS SERVICE; AUTOMATED DATA AND TELECOMMUNICATIONS
SERVICE; NATIONAL ARCHIVES AND RECORDS SERVICE; AND FEDERAL SUPPLY
SERVICE. ALL OF THE EMPLOYEES IN THE CLAIMED UNIT ARE EMPLOYED IN THE
FEDERAL PROTECTIVE SERVICE DIVISION OF THE PUBLIC BUILDINGS SERVICE,
WHICH IS RESPONSIBLE FOR THE PROTECTION OF PERSONNEL AND PROPERTY UNDER
THE CONTROL OR JURISDICTION OF GSA. IN THIS CONNECTION, SUCH EMPLOYEES
PERFORM PATROL DUTIES, RESPOND TO EMERGENCY SITUATIONS, AND INVESTIGATE
BOMB THREATS AND OTHER CRIMES OCCURRING IN BUILDINGS UNDER THE CONTROL
OF THE GSA.
FEDERAL PROTECTIVE OFFICERS HAVE AN INTERNAL RANKING STRUCTURE IN
WHICH THE HIGHEST RANKING FPO, A GS-11 CAPTAIN, REPORTS DIRECTLY TO THE
DIRECTOR OF THE FEDERAL PROTECTIVE SERVICE DIVISION. ASSISTING THE
CAPTAIN ARE TWO GS-9 LIEUTENANTS, EACH HAVING JURISDICTION OVER A FOUR
STATE ZONE. RANKING BELOW THE LIEUTENANTS ARE GS-7 SERGEANTS AND GS-6
CORPORALS WITH THE REMAINING FPOS AND GUARDS AT THE GS-4 AND GS-5
LEVELS.
SUCCESSFUL COMPLETION OF AN EIGHT WEEK ACADEMY TRAINING COURSE IS ONE
OF SEVERAL PREREQUISITES APPLICANTS MUST MEET PRIOR TO BECOMING
FULL-FLEDGED FPOS. /4/ APPLICANTS MUST ALSO INITIALLY TAKE A BATTERY OF
TESTS, A PHYSICAL EXAMINATION, AND UNDERGO A BACKGROUND INVESTIGATION.
AFTER MEETING THE ABOVE-NOTED REQUIREMENTS, FPOS ARE ASSIGNED TO ONE OF
MANY DUTY STATIONS LOCATED THROUGHOUT REGION 4. ADDITIONALLY, FPOS MAY
VOLUNTEER FOR A SPECIAL OPERATIONS RESPONSE TEAM WHICH REQUIRES
ADDITIONAL TRAINING AND ENTITLES MEMBERS TO WEAR A SPECIAL ARM PATCH.
FPOS AND GUARDS WEAR SPECIAL UNIFORMS AND, IF QUALIFIED, CARRY FIREARMS
IN THE PERFORMANCE OF THEIR DUTIES.
LABOR RELATIONS MATTERS ARE HANDLED BY THE REGION'S PERSONNEL
DIVISION, WHICH ALSO ADMINISTERS PERSONNEL POLICIES FOR ALL EMPLOYEES
WITHIN REGION 4. IN ADDITION TO AN EMPLOYEE HANDBOOK GOVERNING GSA
EMPLOYEES, THERE EXISTS A SEPARATE HANDBOOK CONTAINING RULES AND
REGULATIONS APPLICABLE ONLY TO FEDERAL PROTECTIVE PERSONNEL, WHOSE TOUR
OF DUTY, UNLIKE OTHER EMPLOYEES, CONSISTS OF THREE EIGHT HOUR SHIFTS
DURING EACH 24 HOUR PERIOD.
UNDER ALL OF THE CIRCUMSTANCES HEREIN, I FIND THE CLAIMED UNIT OF ALL
FPOS AND GUARDS IN REGION 4 IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION. IN MY VIEW, SUCH A REGION-WIDE UNIT CONSTITUTES A
FUNCTIONALLY DISTINCT GROUP OF EMPLOYEES WITHIN THE MEANING OF SECTION
10(B) OF THE ORDER WHO SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST SEPARATE AND DISTINCT FROM OTHER EMPLOYEES OF THE ACTIVITY.
/5/ IN THIS REGARD, THE RECORD REVEALS THAT FPOS AND GUARDS SHARE A
COMMON MISSION, PERFORM THE SAME JOB FUNCTIONS, SHARE COMMON SUPERVISION
AND ARE SUBJECT TO COMMON PERSONNEL POLICIES WHICH ARE ADMINISTERED BY
THE REGION'S PERSONNEL DIVISION. ADDITIONALLY, FPOS RECEIVE SPECIAL
TRAINING AND THEY, ALONG WITH GUARDS, WEAR UNIFORMS AND, IF QUALIFIED,
CARRY FIREARMS IN THE PERFORMANCE OF THEIR DUTIES.
FURTHER, I FIND THAT SUCH A REGION-WIDE UNIT WILL PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. IN THIS CONNECTION, THE
RECORD REVEALS THAT A REGION-WIDE UNIT OF FPOS AND GUARDS WAS PREVIOUSLY
REPRESENTED EXCLUSIVELY BY THE INTERNATIONAL FEDERATION OF FEDERAL
POLICE AND COVERED BY A NEGOTIATED AGREEMENT. IN THE ABSENCE OF
EVIDENCE THAT THE SCOPE AND CHARACTER OF THIS PRE-EXISTING UNIT HAVE
CHANGED BY VIRTUE OF EVENTS SUBSEQUENT TO ITS INITIAL CERTIFICATION, I
REJECT THE ACTIVITY'S CONTENTION THAT THE ONLY APPROPRIATE UNIT IN THESE
CIRCUMSTANCES WOULD CONSIST OF A REGION-WIDE RESIDUAL UNIT OF ALL
CURRENTLY UNREPRESENTED REGION 4 EMPLOYEES. RATHER, I FIND THAT THE
BARGAINING HISTORY IN THIS UNIT DEMONSTRATES THAT IT WILL PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
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 FEDERAL PROTECTIVE OFFICERS AND GUARDS EMPLOYED BY THE GENERAL
SERVICES ADMINISTRATION,
REGION 4, EXCLUDING PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS,
EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND
SUPERVISORS AS DEFINED BY THE
ORDER.
DIRECTION OF ELECTION
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 ADMINISTRATOR 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 NATIONAL FEDERATION
OF FEDERAL EMPLOYEES, LOCAL 1766.
DATED, WASHINGTON, D.C.
SEPTEMBER 30, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ THE INTERNATIONAL FEDERATION OF FEDERAL POLICE WAS PREVIOUSLY
CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF THE CLAIMED EMPLOYEES AND
ENTERED INTO A NEGOTIATED AGREEMENT WITH THE ACTIVITY. HOWEVER,
SUBSEQUENTLY IT DISCLAIMED INTEREST IN SUCH UNIT.
/2/ THE RECORD REVEALS THAT THERE ARE CURRENTLY SOME 17 EXCLUSIVELY
REPRESENTED UNITS IN REGION 4.
/3/ REGION 4 ENCOMPASSES THE STATES OF ALABAMA, FLORIDA, GEORGIA,
KENTUCKY, MISSISSIPPI, NORTH CAROLINA, SOUTH CAROLINA AND TENNESSEE.
/4/ IN THIS CONNECTION, GSA GUARDS, OF WHICH THERE ARE TWO IN REGION
4, ARE THOSE INDIVIDUALS WHO HAVE NOT COMPLETED THIS ACADEMY TRAINING
COURSE, BUT IN OTHER RESPECTS HAVE SIMILAR DUTIES AND RESPONSIBILITIES
AND ARE SUBJECT TO THE SAME SUPERVISION AS FPOS.
/5/ SEE DEPARTMENT OF NAVY, NAVAL SUPPORT ACTIVITY, LONG BEACH,
CALIFORNIA, A/SLMR NO. 629, FLRC NO. 76A-91; DEPARTMENT OF THE
INTERIOR, BUREAU OF RECLAMATION, BOULDER CANYON PROJECT, BOULDER CITY,
NEVADA, A/SLMR NO. 688; AND DEPARTMENT OF THE NAVY, U.S. NAVAL STATION,
SAN DIEGO, CALIFORNIA, A/SLMR NO. 627.
7 A/SLMR 910; P. 854; CASE NOS. 60-4612(DR), 61-3239(DR), AND
63-6532(DR); SEPTEMBER 23, 1977.
SEPTEMBER 23, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
U.S. DEPARTMENT OF COMMERCE,
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION,
NATIONAL WEATHER SERVICE, CENTRAL, WESTERN AND SOUTHERN REGIONS
A/SLMR NO. 910
PETITIONS WERE FILED BY EMPLOYEES OF THE THREE ACTIVITIES INVOLVED
SEEKING TO DECERTIFY THE INCUMBENT-INTERVENOR, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, COUNCILS OF CENTRAL, WESTERN, AND SOUTHERN REGIONS
LOCALS (NAGE), AS THE EXCLUSIVE REPRESENTATIVE IN THREE UNITS CONTAINING
PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES. THE NATIONAL WEATHER
SERVICE EMPLOYEES ORGANIZATION, MEBA, AFL-CIO (NWSEO) WAS GRANTED
INTERVENTION IN EACH CASE. THE NAGE INDICATED ITS OPPOSITION TO ANY
ELECTION CONDUCTED WHICH PROVIDED FOR A SELF-DETERMINATION ELECTION FOR
THE PROFESSIONAL EMPLOYEES, CONTENDING THAT SECTION 10(B)(4) OF THE
ORDER REQUIRES SUCH AN ELECTION ONLY UPON THE ESTABLISHMENT OF A UNIT
AND, THEREFORE, SUCH AN ELECTION IS ONLY REQUIRED WHERE EITHER A NEW
PROFESSIONAL-NONPROFESSIONAL EMPLOYEE UNIT, OR A CHANGE IN THE
ESTABLISHED UNIT, IS PROPOSED. IT REFUSED TO ENTER INTO CONSENT
ELECTION AGREEMENTS PROVIDING FOR SUCH A SELF-DETERMINATION ELECTION.
THIS MATTER WAS BROUGHT BEFORE THE ASSISTANT SECRETARY PURSUANT TO A
REGIONAL ADMINISTRATOR'S ORDER CONSOLIDATING AND TRANSFERRING CASES
PURSUANT TO SECTION 206.5(A) OF THE ASSISTANT SECRETARY'S REGULATIONS
SOLELY FOR THE PURPOSE OF DETERMINING, UNDER THE PARTICULAR
CIRCUMSTANCES INVOLVED HEREIN, WHETHER THE PROFESSIONAL EMPLOYEES SHOULD
BE GRANTED A SELF-DETERMINATION ELECTION.
THE ASSISTANT SECRETARY FOUND THAT, UNDER THE PARTICULAR
CIRCUMSTANCES HEREIN, THE ELECTIONS TO BE CONDUCTED IN THIS MATTER ARE
SUBJECT TO THE REQUIREMENTS OF SECTION 10(B)(4) OF THE ORDER.
ACCORDINGLY, HE ORDERED THE CASES REMANDED TO THE APPROPRIATE REGIONAL
ADMINISTRATOR FOR FURTHER PROCESSING IN ACCORDANCE WITH HIS FINDING THAT
ANY ELECTION CONDUCTED IN THE SUBJECT CASES MUST PROVIDE FOR A
SELF-DETERMINATION ELECTION FOR THE PROFESSIONAL EMPLOYEES.
U.S. DEPARTMENT OF COMMERCE,
NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, NATIONAL WEATHER
SERVICE, CENTRAL REGION
ACTIVITY
CASE NO. 60-4612(DR)
AND
WALTER VAN ETTEN, AN INDIVIDUAL
PETITIONER
AND
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
COUNCIL OF NWS CENTRAL REGION LOCALS
INTERVENOR
AND
NATIONAL WEATHER SERVICE EMPLOYEES
ORGANIZATION, MEBA, AFL-CIO
INTERVENOR
U.S. DEPARTMENT OF COMMERCE,
NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, NATIONAL WEATHER
SERVICE, WESTERN REGION
ACTIVITY
CASE NO. 61-3239(DR)
AND
ELWYN E. ANDERSON, AN INDIVIDUAL
PETITIONER
AND
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
COUNCIL OF WESTERN REGION LOCALS
INTERVENOR
AND
NATIONAL WEATHER SERVICE EMPLOYEES
ORGANIZATION, MEBA, AFL-CIO
INTERVENOR
U.S. DEPARTMENT OF COMMERCE,
NATIONAL WEATHER SERVICE,
SOUTHERN REGION,
FORT WORTH, TEXAS
ACTIVITY
CASE NO. 63-6532(DR)
AND
JOHN FRANCIS MORTON, AN INDIVIDUAL
PETITIONER
AND
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
IND., NAGE COUNCIL OF SOUTHERN REGION LOCALS
INTERVENOR
AND
NATIONAL WEATHER SERVICE EMPLOYEES
ORGANIZATION, MEBA, AFL-CIO
INTERVENOR
DECISION AND ORDER
THIS MATTER IS BEFORE THE ASSISTANT SECRETARY PURSUANT TO REGIONAL
ADMINISTRATOR CULLEN P. KEOUGH'S ORDER CONSOLIDATING AND TRANSFERRING
CASES TO THE ASSISTANT SECRETARY PURSUANT TO SECTION 206.5(A) OF THE
ASSISTANT SECRETARY'S REGULATIONS SOLELY FOR THE PURPOSE OF DETERMINING
WHETHER, UNDER THE PARTICULAR CIRCUMSTANCES INVOLVED HEREIN, THE
PROFESSIONAL EMPLOYEES IN EACH OF THE EXISTING
PROFESSIONAL-NONPROFESSIONAL EMPLOYEE UNITS IN THE ABOVE-NAMED CASES
SHOULD BE GRANTED THE OPTION OF SEPARATELY EXPRESSING THEIR DESIRES
RESPECTING THEIR CONTINUED INCLUSION IN SUCH UNITS. /1/
UPON THE ENTIRE RECORD IN THE SUBJECT CASES, INCLUDING THE BRIEFS
FILED BY THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, COUNCILS OF
CENTRAL, WESTERN, AND SOUTHERN REGIONS LOCALS (NAGE) AND BY THE ACTIVITY
IN CASE NO. 60-4612(DR), THE ASSISTANT SECRETARY FINDS:
THE PETITIONS IN THE ABOVE-NAMED CASES WERE FILED BY INDIVIDUAL
EMPLOYEES SEEKING TO DECERTIFY THE NAGE WHICH CURRENTLY IS THE EXCLUSIVE
BARGAINING REPRESENTATIVE IN THREE UNITS CONTAINING PROFESSIONAL AND
NONPROFESSIONAL EMPLOYEES. THE NAGE AND THE NATIONAL WEATHER SERVICE
EMPLOYEES ORGANIZATION, MEBA, AFL-CIO (NWSEO) WERE GRANTED INTERVENTION
IN EACH OF THE SUBJECT CASES.
THE NAGE INDICATED ITS OPPOSITION TO THE CONSENT ELECTION AGREEMENTS
HEREIN WHICH PROVIDE FOR A SELF-DETERMINATION ELECTION FOR THE
PROFESSIONAL EMPLOYEES. IN THIS REGARD, IT CONTENDS THAT SECTION
10(B)(4) OF THE ORDER /2/ REQUIRES A SELF-DETERMINATION ELECTION ONLY
UPON THE ESTABLISHMENT OF A UNIT, AND THAT A SELF-DETERMINATION
ELECTION, THEREFORE, IS ONLY REQUIRED WHERE EITHER A NEW
PROFESSIONAL-NONPROFESSIONAL EMPLOYEE UNIT, OR A CHANGE IN THE
ESTABLISHED UNIT, IS PROPOSED. IT FURTHER ARGUES THAT A
SELF-DETERMINATION ELECTION FOR THE PROFESSIONAL EMPLOYEES HEREIN COULD
ONLY SERVE TO ENCOURAGE FRAGMENTATION OF EXISTING BARGAINING UNITS. IN
CASE NO. 60-4612(DR), THE ACTIVITY TAKES THE POSITION THAT FRAGMENTATION
WOULD RESULT IF A SELF-DETERMINATION ELECTION FOR THE PROFESSIONAL
EMPLOYEES IS ORDERED, BUT STATES THAT IT WILL COMPLY WITH THE ASSISTANT
SECRETARY'S DETERMINATION.
UNDER THE PARTICULAR CIRCUMSTANCES, I FIND THAT THE ELECTIONS TO BE
CONDUCTED IN THE CASES HEREIN ARE SUBJECT TO THE REQUIREMENTS OF SECTION
10(B)(4) OF THE ORDER. PARTICULARLY NOTED IN THIS CONNECTION WAS THE
ASSISTANT SECRETARY'S HOLDING IN INDIAN HEALTH SERVICE AREA OFFICE,
WINDOW ROCK, ARIZONA, AND PUBLIC HEALTH SERVICE INDIAN HOSPITAL, FORT
DEFIANCE, ARIZONA, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, A/SLMR
NO. 778, WHICH INVOLVED A CHALLENGE TO THE STATUS OF AN INCUMBENT LABOR
ORGANIZATION IN AN EXISTING PROFESSIONAL-NONPROFESSIONAL EMPLOYEE UNIT.
IN THAT CASE, THE ASSISTANT SECRETARY CONCLUDED THAT WHERE AN ELECTION
IS ORDERED IN AN EXISTING MIXED UNIT OF PROFESSIONAL AND NONPROFESSIONAL
EMPLOYEES, THE PROFESSIONAL EMPLOYEES MUST BE GIVEN THE OPTION TO DECIDE
WHETHER THEY WISH TO CONTINUE IN A COMBINED PROFESSIONAL AND
NONPROFESSIONAL EMPLOYEE UNIT, REGARDLESS OF THE FACT THAT THEY HAVE
ALREADY ENJOYED THE OPPORTUNITY OF SUCH SEPARATE EXPRESSION IN A PRIOR
ELECTION FOR A MIXED UNIT OF PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES.
/3/
ACCORDINGLY, I SHALL ORDER THAT THE SUBJECT CASES BE REMANDED TO THE
APPROPRIATE REGIONAL ADMINISTRATOR FOR FURTHER PROCESSING IN ACCORDANCE
WITH MY FINDING THAT ANY ELECTION CONDUCTED IN THE ABOVE-NAMED CASES
MUST PROVIDE FOR A SELF-DETERMINATION ELECTION FOR THE PROFESSIONAL
EMPLOYEES.
ORDER
IT IS HEREBY ORDERED THAT THE SUBJECT CASES BE, AND THEY HEREBY ARE,
REMANDED TO THE APPROPRIATE REGIONAL ADMINISTRATOR.
DATED, WASHINGTON, D.C.
SEPTEMBER 23, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ NOTICE WAS GIVEN BY THE REGIONAL ADMINISTRATOR IN THE ORDER
CONSOLIDATING AND TRANSFERRING CASES OF HIS INTENT TO SEVER THE
ABOVE-CAPTIONED CASES SUBSEQUENT TO THE DECISION OF THE ASSISTANT
SECRETARY.
/2/ SECTION 10(B)(4) PROVIDES THAT A UNIT SHALL NOT BE ESTABLISHED
"IF IT INCLUDES BOTH PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES, UNLESS
A MAJORITY OF THE PROFESSIONAL EMPLOYEES VOTE FOR INCLUSION IN THE
UNIT."
/3/ IN REACHING THIS DISPOSITION, IT WAS NOTED THAT THE CONSOLIDATION
PROCEDURES ESTABLISHED BY THE FEDERAL LABOR RELATIONS COUNCIL PROVIDE
THAT IN EVERY CASE WHERE A CONSOLIDATION OF UNITS WOULD MIX BOTH
PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES, ALL OF THE INVOLVED
PROFESSIONALS, INCLUDING THOSE ALREADY IN MIXED UNITS, SHOULD BE GIVEN A
SEPARATE SELF-DETERMINATION ELECTION ON THE ISSUE OF BEING INCLUDED IN
THE PROPOSED CONSOLIDATED UNIT WITH NONPROFESSIONALS.
7 A/SLMR 909; P. 844; CASE NO. 50-13140(CA); SEPTEMBER 23, 1977.
SEPTEMBER 23, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
INDIANAPOLIS, INDIANA
A/SLMR NO. 909
THIS CASE INVOLVES AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
NATIONAL TREASURY EMPLOYEES UNION AND ITS CHAPTER 49 (NTEU) ALLEGING
THAT THE RESPONDENT VIOLATED SECTION 19(A)(1), (2) AND (6) OF THE ORDER
BY UNFAIRLY AND INACCURATELY EVALUATING THE JOB PERFORMANCE OF THE
PRESIDENT OF THE NTEU CHAPTER, RESTRICTING HER JOB RESPONSIBILITIES, AND
BY REIMPLEMENTING THE SECURITY RESTRICTIONS IN ITS CLASSIFICATION
SECTION, THE PRESIDENT'S WORK AREA, WITHOUT NOTIFYING THE COMPLAINANT.
THE RESPONDENT MAINTAINED THAT THE UNION PRESIDENT'S PERFORMANCE
EVALUATION WAS EQUITABLE, FAIR AND WITHOUT ANY SHOWING OF ANTI-UNION
ANIMUS AND THAT IT WAS NOT OBLIGATED TO BARGAIN WITH THE COMPLAINANT
CONCERNING THE DECISION TO REINSTITUTE THE SECURITY RESTRICTIONS IN THE
CLASSIFICATION AREA AS SUCH DECISION IS NOT NEGOTIABLE UNDER SECTION
11(B) OF THE ORDER. IT CONTENDED, FURTHER, THAT THE COMPLAINANT WAS
MADE AWARE AT MEETINGS IN OCTOBER 1974, AND JUNE 1975, THAT THE
RESTRICTIONS WERE GOING TO BE REINSTITUTED BUT THERE WAS NO REQUEST FOR
BARGAINING.
THE ADMINISTRATIVE LAW JUDGE, NOTING THAT PERFORMANCE EVALUATIONS ARE
SUBJECTIVE EVALUATIONS BY SUPERVISORS, FOUND INSUFFICIENT EVIDENCE TO
ESTABLISH THAT THE UNION PRESIDENT'S PERFORMANCE EVALUATION WAS
DISCRIMINATORY OR MOTIVATED BY ANTI-UNION ANIMUS AND RECOMMENDED THAT
THE COMPLAINT, IN THIS REGARD, BE DISMISSED. WITH REGARD TO THE
ALLEGATION CONCERNING THE RESPONDENT'S REINSTITUTION OF SECURITY
RESTRICTIONS WITHOUT NOTIFYING THE COMPLAINANT, THE ADMINISTRATIVE LAW
JUDGE FOUND THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE
ORDER BY NOT FORMALLY NOTIFYING THE COMPLAINANT AND GIVING IT AN
OPPORTUNITY TO MEET AND CONFER ON THE PROCEDURES TO BE OBSERVED IN
IMPLEMENTING THE REINSTITUTION OF SECURITY MEASURES IN THE
CLASSIFICATION AREA AND ON THE IMPACT OF THE DECISION ON ADVERSELY
AFFECTED EMPLOYEES. IN THIS REGARD, HE NOTED THAT THE COMPLAINANT WAS
NEVER SPECIFICALLY OR SUFFICIENTLY INFORMED WHEN THE SECURITY
RESTRICTIONS WOULD BE REINSTITUTED.
IN ADOPTING THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE
ADMINISTRATIVE LAW JUDGE, THE ASSISTANT SECRETARY NOTED THAT ALTHOUGH
THE RESPONDENT NOTIFIED THE COMPLAINANT IN OCTOBER 1974, OF ITS
INTENTION TO REINSTITUTE SECURITY RESTRICTIONS, IT NEVER SPECIFIED WHEN
IT INTENDED TO TAKE SUCH ACTION. UNDER THESE CIRCUMSTANCES, AND NOTING
THE LENGTH OF TIME BETWEEN THE "NOTICE" AFFORDED THE COMPLAINANT AND THE
ACTION BY RESPONDENT IN NOVEMBER 1975, THE ASSISTANT SECRETARY FOUND
THAT THE RESPONDENT FAILED IN ITS DUTY UNDER THE ORDER TO SPECIFICALLY
NOTIFY THE COMPLAINANT OF ITS DECISION, AND PROVIDE THE COMPLAINANT AN
OPPORTUNITY TO BARGAIN ABOUT THE IMPACT AND IMPLEMENTATION OF THE
DECISION. ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THE RESPONDENT
TO CEASE AND DESIST FROM THE ACTION FOUND VIOLATIVE, AND TO TAKE CERTAIN
AFFIRMATIVE ACTIONS.
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
INDIANAPOLIS, INDIANA
RESPONDENT
CASE NO. 50-13140(CA)
AND
NATIONAL TREASURY EMPLOYEES
UNION AND NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 49
COMPLAINANT
DECISION AND ORDER
ON APRIL 21, 1977, 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 CEASE AND DESIST THEREFROM AND TAKE
CERTAIN AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE
LAW JUDGE'S RECOMMENDED DECISION AND ORDER. THEREAFTER, THE RESPONDENT
FILED EXCEPTIONS AND A SUPPORTING BRIEF WITH RESPECT TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER AND THE
COMPLAINANT FILED AN 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 RECOMMENDED DECISION AND
ORDER AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE
RESPONDENT'S EXCEPTIONS AND SUPPORTING BRIEF AND THE COMPLAINANT'S
ANSWERING BRIEF, I HEREBY ADOPT THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS.
THE ADMINISTRATIVE LAW JUDGE FOUND, AND I CONCUR, THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY REINSTITUTING SECURITY
RESTRICTIONS IN NOVEMBER 1975, WITHOUT FIRST NOTIFYING THE COMPLAINANT
AND AFFORDING IT A REASONABLE OPPORTUNITY TO BARGAIN CONCERNING THE
IMPACT AND IMPLEMENTATION OF THE DECISION. IN THE INSTANT MATTER,
ALTHOUGH THE RESPONDENT APPARENTLY INFORMED THE COMPLAINANT OF ITS
INTENTION TO REINSTITUTE THE SECURITY RESTRICTIONS AT A MEETING HELD ON
OCTOBER 10, 1974, A YEAR BEFORE THE RESUMPTION OF THE SECURITY
RESTRICTIONS, IT NEVER SPECIFIED WHEN SUCH ACTION WOULD TAKE PLACE.
SIMILARLY, AT THE PARTIES' JUNE 1975, MEETING NO INDICATION WAS GIVEN BY
THE RESPONDENT AS TO WHEN THE CLASSIFICATION SECTION WOULD BE MOVED OR
WHEN THE SECURITY RESTRICTIONS WOULD BE ENFORCED. UNDER THESE
PARTICULAR CIRCUMSTANCES, AND NOTING THE LENGTH OF TIME BETWEEN THE
"NOTICE" AFFORDED THE COMPLAINANT AND THE ACTION BY THE RESPONDENT IN
NOVEMBER 1975, I FIND THAT THE RESPONDENT FAILED IN ITS OBLIGATION UNDER
THE ORDER TO AFFORD THE COMPLAINANT SPECIFIC NOTICE OF ITS INTENTIONS,
/1/ AND TO PROVIDE THE COMPLAINANT WITH A REASONABLE OPPORTUNITY TO
BARGAIN OVER THE PROCEDURES TO BE OBSERVED IN IMPLEMENTING ITS DECISION
TO REINSTITUTE THE SECURITY MEASURES, AND ON THE IMPACT OF ITS DECISION
ON ADVERSELY AFFECTED EMPLOYEES.
ORDER /2/
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
TREASURY, INTERNAL REVENUE SERVICE, INDIANAPOLIS, INDIANA, SHALL:
1. CEASE AND DESIST FROM:
(A) REINSTITUTING SECURITY RESTRICTIONS WITHOUT NOTIFYING THE
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 49, THE EXCLUSIVE BARGAINING
REPRESENTATIVE, AND AFFORDING IT A REASONABLE OPPORTUNITY TO MEET AND
CONFER, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE
PROCEDURES TO BE OBSERVED IN IMPLEMENTING SUCH CHANGE, AND ON THE IMPACT
THE CHANGE WILL HAVE ON ADVERSELY AFFECTED EMPLOYEES.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING 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 POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) UPON REQUEST BY THE NATIONAL TREASURY EMPLOYEES UNION, CHAPTER
49, MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS,
CONCERNING THE PROCEDURES USED IN REINSTITUTING THE SECURITY
RESTRICTIONS WHICH BECAME EFFECTIVE IN NOVEMBER 1975, AND ON THE IMPACT
OF THE CHANGE ON ADVERSELY AFFECTED EMPLOYEES.
(B) POST AT THE INTERNAL REVENUE SERVICE, INDIANAPOLIS, INDIANA,
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 DISTRICT
DIRECTOR OF THE INDIANAPOLIS DISTRICT 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 203.27 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. 50-13140(CA),
INSOFAR AS IT ALLEGES VIOLATIONS OF SECTION 19(A)(2) OF THE ORDER, BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 23, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ COMPARE DEPARTMENT OF THE NAVY, MARINE CORPS SUPPLY CENTER,
BARSTOW, CALIFORNIA, A/SLMR NO. 692, AND INTERNAL REVENUE SERVICE,
PHILADELPHIA SERVICE CENTER, PHILADELPHIA, PENNSYLVANIA, A/SLMR NO. 771.
/2/ IN ITS EXCEPTIONS, THE RESPONDENT CONTENDED THAT THE
ADMINISTRATIVE LAW JUDGE'S PROPOSED REMEDY IS, IN EFFECT, A RETURN TO
THE STATUS QUO ANTE AND SHOULD NOT BE REQUIRED AS A PART OF THE REMEDIAL
ORDER HEREIN. IN MY VIEW, WHERE, AS HERE, THERE HAS BEEN AN IMPROPER
FAILURE TO MEET AND CONFER OVER THE IMPACT AND IMPLEMENTATION OF A
MANAGEMENT DECISION WHICH IS NOT WITHIN THE AMBIT OF SECTION 11(A) OF
THE ORDER, GENERALLY IT WILL NOT EFFECTUATE THE PURPOSES AND POLICIES OF
THE ORDER TO REQUIRE A RETURN TO THE STATUS QUO ANTE AS PART OF THE
REMEDIAL ORDER. SEE DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
SERVICE, MANHATTAN DISTRICT, A/SLMR NO. 841.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS AND IN ORDER TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
AMENDED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REINSTITUTE SECURITY RESTRICTIONS WITHOUT NOTIFYING THE
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 49, THE EXCLUSIVE BARGAINING
REPRESENTATIVE, AND AFFORDING IT A REASONABLE OPPORTUNITY TO MEET AND
CONFER, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE
PROCEDURES TO BE OBSERVED IN IMPLEMENTING SUCH CHANGE, AND ON THE IMPACT
THE CHANGE WILL HAVE ON ADVERSELY AFFECTED EMPLOYEES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE ORDER
11491, AS AMENDED.
WE WILL, UPON REQUEST BY THE NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 49, MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, CONCERNING THE PROCEDURES USED IN REINSTITUTING THE
SECURITY RESTRICTIONS WHICH BECAME EFFECTIVE IN NOVEMBER 1975, AND ON
THE IMPACT OF THE CHANGE ON ADVERSELY AFFECTED EMPLOYEES.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR WHOSE ADDRESS
IS: RM. 1060 FEDERAL BLDG., 203 S. DEARBORN ST., CHICAGO, ILL. 60604.
U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
SUITE 700-1111 20TH STREET, N.W.
WASHINGTON, D.C. 20036
IN THE MATTER OF
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
INDIANAPOLIS, INDIANA
RESPONDENT
CASE NO. 50-13140(CA)
AND
NATIONAL TREASURY EMPLOYEES UNION
AND NTEU CHAPTER 49
COMPLAINANT
DAVID J. MARKMAN
COLUMBUS, OHIO
FOR THE RESPONDENT
LESLEY M. GUYTON, ESQ.
WASHINGTON, D.C.
FOR THE COMPLAINANT
BEFORE: GORDON J. MYATT
ADMINSTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO A COMPLAINT FILED APRIL 1, 1976, BY NATIONAL TREASURY
EMPLOYEES UNION AND NTEU CHAPTER 49 (HEREINAFTER CALLED THE UNION)
ALLEGING THAT DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICES,
INDIANAPOLIS, INDIANA (HEREINAFTER CALLED THE ACTIVITY) VIOLATED SECTION
19(1), (2) AND (6) OF THE EXECUTIVE ORDER 11491, AS AMENDED, THE
REGIONAL ADMINISTRATOR OF LABOR-MANAGEMENT SERVICES ADMINISTRATION FOR
THE CHICAGO REGION ISSUED A NOTICE OF HEARING ON COMPLAINT ON SEPTEMBER
16, 1976. THE COMPLAINT ALLEGED THAT THE RESPONDENT ACTIVITY ENGAGED IN
DISCRIMINATORY TREATMENT OF THE PRESIDENT OF THE LOCAL CHAPTER OF THE
UNION IN THE FOLLOWING MANNER:
(A) UNFAIRLY AND INACCURATELY EVALUATING HER JOB PERFORMANCE BECAUSE
OF HER UNION
ACTIVITIES.
(B) RESTRICTING HER JOB RESPONSIBILITIES BY TAKING AWAY WORK SHE
PREVIOUSLY PERFORMED AND
REFUSING TO INFORM HER OF CHANGES IN PROCEDURES AND PROGRAMS.
(C) REFUSING TO ASSIGN HER WORK TO PERFORM.
(D) INTERFERING WITH HER RIGHT AND THE RIGHT OF OTHER EMPLOYEES TO
DISCUSS JOB OR
UNION-RELATED MATTERS BY RESTRICTING HER RIGHT TO MEET AND CONFER
WITH EMPLOYEES.
A HEARING WAS HELD ON THE ISSUES IN THIS CASE ON NOVEMBER 18, 1976,
IN INDIANAPOLIS, INDIANA. ALL PARTIES WERE REPRESENTED BY COUNSEL AND
AFFORDED FULL OPPORTUNITY TO BE HEARD AND TO INTRODUCE RELEVANT EVIDENCE
AND TESTIMONY ON THE ISSUES INVOLVED. BRIEFS WERE SUBMITTED BY COUNSEL
AND HAVE BEEN DULY CONSIDERED IN ARRIVING AT THE DECISION IN THIS CASE.
/1/ THE UNION BRIEF WITHDREW THAT PORTION OF THE ALLEGATIONS RELATING TO
THE RESTRICTION OF JOB RESPONSIBILITIES AND THE REFUSAL TO ASSIGN WORK
TO MS. BRICKENS. ACCORDINGLY, NO FINDINGS WILL BE MADE ON THIS ASPECT
OF THE COMPLAINT.
UPON THE ENTIRE RECORD IN THIS MATTER, INCLUDING MY OBSERVATION OF
THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING:
FINDINGS OF FACT
CHAPTER 49 OF THE UNION IS THE EXCLUSIVE REPRESENTATIVE OF ALL
DISTRICT BARGAINING UNIT EMPLOYEES OF THE RESPONDENT ACTIVITY WITHIN THE
STATE OF INDIANA. IT HAS HELD THIS STATUS SINCE JULY 1971. THE LABOR
ORGANIZATION AND THE ACTIVITY ARE PARTIES TO A MULTI-DISTRICT AGREEMENT
BETWEEN THE NATIONAL TREASURY EMPLOYEES UNION AND THE INTERNAL REVENUE
SERVICE.
MS. JENNY BRICKENS HAS BEEN THE PRESIDENT AND CHIEF STEWARD OF
CHAPTER 49 SINCE IT FIRST ACHIEVED EXCLUSIVE RECOGNITION. SHE IS
EMPLOYED AS A CLERK-STENOGRAPHER FOR THE RETURNS PROGRAM MANAGER IN THE
CLASSIFICATION AREA OF THE AUDIT DIVISION. AMONG OTHER THINGS, HER
DUTIES INITIALLY INCLUDED PREPARING STATISTICAL REPORTS ON AUDIT
PROGRAMS, INITIAL SCREENING OF INFORMANTS' LETTER, MAINTAINING CONTROL
AND RECORDS ON SPECIAL AUDIT PROGRAMS AS WELL AS GENERAL CLERICAL DUTIES
FOR THE RETURNS PROGRAM MANAGER. /2/
MS. BRICKENS FIRST SUPERVISOR AND THE PERSON UNDER WHOM SHE WORKED
THE LONGEST PERIOD OF TIME WAS ROBERT RAWLEY. HE WAS THE RETURNS
PROGRAM MANAGER FROM MID-1968 UNTIL JULY 1974, WHEN HE RETIRED. /3/
RAWLEY WAS SUCCEEDED BY ROBERT PADILLA, FOR A PERIOD OF APPROXIMATELY A
MONTH. ON AUGUST 4, 1974, ROBERT BENNETT BECAME THE RETURNS PROGRAM
MANAGER AND WAS BRICKENS' SUPERVISOR DURING THE TIME THAT THE ISSUES
AROSE IN THIS CASE.
UNDER THE IRS REGULATIONS THE CLASSIFICATION AREA WAS CONSIDERED A
RESTRICTED AREA. (RESPONDENT ACTIVITY EXHIBIT NO. 1). THIS MEANS THAT
ACCESS WAS LIMITED SOLELY TO AUTHORIZED EMPLOYEES. THE REQUIREMENTS SET
FORTH IN THE IRS MANUAL REGARDING "RESTRICTED AREAS" STATES AS FOLLOWS:
241 RESTRICTED AREA
A RESTRICTED AREA IS AN AREA TO WHICH ACCESS IS LIMITED TO AUTHORIZED
EMPLOYEES. RESTRICTED AREAS SHALL BE PROMINENTLY POSTED AS SUCH AND
SHALL BE SEPARATED FROM
NON-RESTRICTED AREAS BY PHYSICAL BARRIERS WHICH WILL ELIMINATE FREE
ACCESS. BANK-TYPE
PARTITIONS, ROWS OF FILE CABINETS OR SIMILAR BARRIERS WILL SUFFICE
FOR THIS PURPOSE. THE
NUMBER OF ENTRANCES TO A RESTRICTED AREA SHOULD BE KEPT TO A MINIMUM
AND EACH ENTRANCE SHOULD
BE CONTROLLED . . .
FROM 1972 TO JULY 1974, THE RETURNS PROGRAM OFFICE WAS LOCATED IN THE
CONSOLIDATED BUILDING. THIS WAS SEVERAL BLOCKS AWAY FROM THE MAIN
OFFICES OF THE ACTIVITY WHICH WERE IN THE OLD FEDERAL BUILDING.
ALTHOUGH MS. BRICKENS' OFFICE WAS A PART OF THE CLASSIFICATION DIVISION,
THE REGULATIONS REQUIRING THE RESTRICTION OF HER AREA WERE NOT ENFORCED
BECAUSE THE ACTUAL CLASSIFICATION OF RETURNS WAS BEING PERFORMED IN THE
OLD FEDERAL BUILDING. THIS WAS THE SAME SITUATION WHICH PREVAILED PRIOR
TO 1972 WHEN THE RETURNS PROGRAM OFFICE WAS LOCATED IN THE CENTURY
BUILDING-- AWAY FROM THE MAIN IRS OFFICES. THE TESTIMONY AND RECORD
EVIDENCE INDICATES THAT WHILE MS. BRICKENS WAS LOCATED IN THE CENTURY
AND CONSOLIDATED BUILDINGS, ALL EMPLOYEES WERE FREE TO COME TO HER DESK
TO DISCUSS JOB-RELATED MATTERS WITH HER IN HER CAPACITY AS UNION
PRESIDENT AND CHIEF STEWARD.
IN JULY 1974, THE RETURNS PROGRAM OFFICE WAS MOVED INTO THE OLD
FEDERAL BUILDING AND PHYSICALLY RELOCATED IN THE CLASSIFICATION SECTION.
HOWEVER, THE EMPLOYEES CONTINUED TO HAVE UNRESTRICTED ACCESS TO MS.
BRICKENS ON UNION MATTERS UNTIL SOMETIME IN 1974. THERE IS DISPUTE IN
THE TESTIMONY AS TO HOW AND TO WHAT EXTENT MANAGEMENT CURTAILED THIS
PRACTICE. MS. BRICKENS TESTIFIED THAT IN OCTOBER THERE WAS PUBLICITY
OVER INFORMATIONAL PICKETING TAKING PLACE OUTSIDE THE BUILDING, AND A
NEWS REPORTER WAS DIRECTED TO HER AS THE CHIEF UNION OFFICIAL.
ACCORDING TO BRICKENS, THIS INCIDENT RESULTED IN VERNON DAWSON, CHIEF OF
THE ADMINISTRATION DIVISION, INFORMING HER THAT UNAUTHORIZED PERSONS
WERE NOT ALLOWED IN THE RESTRICTED AREA. BRICKENS TESTIFIED THAT HE DID
NOT MENTION EMPLOYEES OF THE ACTIVITY, AND SHE INTERPRETED HIS
RESTRICTION TO APPLY TO NON-IRS PERSONNEL. HOWEVER, ON
CROSS-EXAMINATION SHE ACKNOWLEDGED THAT AFTER THE INCIDENT SHE MET WITH
INDIVIDUALS IN DESIGNATED CONFERENCE ROOMS OUTSIDE THE AREA AND THAT SHE
MAY HAVE MET WITH EMPLOYEES IN THESE CONFERENCE ROOMS. DAWSON AND
BENNETT TESTIFIED THAT IN OCTOBER 1974, DAWSON BEGAN TO ENFORCE THE
RESTRICTED AREA REQUIREMENTS AND SO INFORMED BRICKENS. DAWSON STATED
THAT HE PROVIDED SEVERAL CONFERENCE ROOMS OUTSIDE THE AREA TO MS.
BRICKENS TO ALLOW HER TO CONFER WITH EMPLOYEES WHO WERE NOT AUTHORIZED
TO ENTER THE CLASSIFICATION SECTION. HE ALSO INFORMED HER THAT IF THE
CONFERENCE ROOMS WERE OCCUPIED, HE WOULD MAKE OTHER SPACE AVAILABLE TO
HER. IN VIEW OF BRICKENS' ACKNOWLEDGEMENT THAT SHE DID MEET WITH
INDIVIDUALS IN THE CONFERENCE ROOM AND THAT SHE MAY HAVE MET WITH
EMPLOYEES THERE, I CREDIT THE TESTIMONY OF DAWSON AND BENNETT REGARDING
THIS ARRANGEMENT.
IN DECEMBER 1974, THE RESPONDENT ACTIVITY MOVED ITS ENTIRE OPERATION
INTO THE NEW FEDERAL BUILDING. MANAGEMENT HAD BEEN MEETING REGULARLY
WITH THE UNION REPRESENTATIVES FOR MORE THAN A YEAR PRIOR TO DISCUSS THE
DETAILS AND THE IMPACT OF THE MOVE UPON THE EMPLOYEES. BRICKENS DID NOT
RECALL ANY DISCUSSION REGARDING ENFORCEMENT OF THE SECURITY ARRANGEMENTS
FOR THE CLASSIFICATION SECTION, BUT A JOINT SUMMARY OF A MEETING HELD ON
OCTOBER 10, 1974, DISCLOSES THAT THIS SUBJECT WAS CONSIDERED BY THE
PARTIES. (RESPONDENT ACTIVITY EXHIBIT NO. 2). THE MATTER WAS OF
CONCERN TO MANAGEMENT BECAUSE "ANYONE WISHING TO SEE THE UNION
PRESIDENT" (BRICKENS) HAD "TO GO THROUGH THE RETURNS CLASSIFICATION
AREA." DAWSON TESTIFIED THAT HE INFORMED BRICKENS THERE HAD BEEN AN
OVERSIGHT IN THE PLANNING, AND THE CLASSIFICATION AREA WOULD BE OPEN AND
EXPOSED WHEN THEY FIRST MOVED INTO THE NEW BUILDING. HE STATED THIS
COULD NOT BE CORRECTED UNTIL THE BUILDING WAS FULLY OCCUPIED AND THE
CONTRACTOR TURNED CONTROL OVER TO GSA. BECAUSE DAWSON'S TESTIMONY IN
THIS REGARD IS CONSISTENT WITH THE JOINTLY SIGNED SUMMARY, I CREDIT HIS
ACCOUNT OF THIS MEETING.
AFTER THE RESPONDENT ACTIVITY MOVED INTO THE NEW FEDERAL BUILDING,
THE RESTRICTIONS FOR THE CLASSIFICATION AREA WERE NOT ENFORCED BY
MANAGEMENT. THE AREA WAS NOT PARTITIONED OFF DUE TO THE PLANNING
OVERSIGHT, AND EMPLOYEES WERE FREE TO COME TO BRICKENS' DESK TO DISCUSS
MATTERS WITH HER THAT REQUIRED UNION ADVICE OR ASSISTANCE.
BRICKENS' DESK WAS LOCATED NEAR THE ENTRANCE TO BENNETT'S OFFICE.
HER DISCUSSIONS WITH EMPLOYEES, BOTH IN PERSON AND ON THE TELEPHONE,
WERE A CAUSE OF CONCERN AND IRRITATION TO BENNETT. ON ONE OCCASION,
WHEN AN EMPLOYEE FROM ANOTHER SECTION WAS SEATED BESIDE BRICKENS' DESK
DISCUSSING A MATTER INVOLVING AN INVESTIGATION OF HER CONDUCT, BENNETT
CALLED THAT EMPLOYEE'S SUPERVISOR TO ASCERTAIN IF SHE HAD ADVISED HIM
THAT SHE WAS GOING TO SEE THE UNION OFFICIAL. THIS WAS A REQUIREMENT
CONTAINED IN THE NEGOTIATED AGREEMENT. ON ANOTHER OCCASION, ON A
SATURDAY, BENNETT WAS IN THE OFFICE AND DECIDED TO MOVE BRICKENS' DESK
AWAY FROM THE ENTRANCE TO HIS OFFICE TO A POSITION CLOSER TO THE DOORWAY
LEADING TO THE PUBLIC HALLWAY. MATTINGLY, VICE PRESIDENT OF THE UNION
WAS IN THE OFFICE THAT DAY AND OFFERED TO ASSIST BENNETT. MATTINGLY
TESTIFIED THAT BENNETT VOLUNTEERED THAT HE WAS MOVING BRICKENS' DESK TO
GET HER AWAY FROM HIM AS "HE WAS TIRED OF LISTENING TO PEOPLE COME IN
AND TALK TO JENNY", AND "HE DIDN'T KNOW WHAT HE COULD DO, BUT HE WAS
TIRED OF CARRYING ALL OF THAT DEAD TIME IN HIS UNIT." AS A PARTIAL
SOLUTION TO THIS PROBLEM, HE MOVED MS. BRICKENS' DESK FURTHER AWAY SO
HER UNION BUSINESS WOULD BE MORE PRIVATE AND HE WOULD NOT BE DISTURBED
BY HER TELEPHONE CONVERSATIONS. /4/
THE YEAR 1975 WAS AN UNFORTUNATE PERIOD PERSONALLY FOR MS. BRICKENS.
SHE WAS COMPELLED TO TAKE LEAVE FROM HER JOB AT VARIOUS TIMES DUE TO
DEATH IN HER FAMILY, SERIOUS ILLNESS OF HER HUSBAND, AND HER OWN
PERSONAL ILLNESS. IN SEPTEMBER 1975, BENNETT COMPLETED HIS FIRST
SUPERVISOR'S PROMOTION APPRAISAL EVALUATION OF BRICKENS. HE RATED HER
AS A "SATISFACTORY" EMPLOYEE AND ASSIGNED HER A NUMERICAL RATING OF 3 ON
ALL OF THE EVALUATION FACTORS. /5/ IN ALL OF HER PRIOR APPRAISALS BY
RAWLEY, DATING BACK TO 1970, SHE WAS RATED "SATISFACTORY", BUT THE
NUMERICAL RATING ASSIGNED TO THE EVALUATION FACTORS WERE GENERALLY
HIGHER THAN 3. /6/ BRICKENS TOOK ISSUE WITH BENNETT'S APPRAISAL AND
REFUSED TO SIGN IT. SHE TOLD HIM SHE FELT HIS ASSESSMENT OF HER JOB
PERFORMANCE WAS TOO LOW. /7/
SOMETIME IN NOVEMBER 1975, MS. BRICKENS WAS ON EXTENDED LEAVE BECAUSE
HER HUSBAND HAD SUFFERED A STROKE. WHILE SHE WAS OUT, BENNETT AND THE
CHIEF OF THE AUDIT SERVICE BRANCH ISSUED A JOINT MEMORANDUM TO THE AUDIT
MANAGERS REMINDING THEM THAT THE SERVICE BRANCH AND THE CLASSIFICATION
AREA WERE SECURITY AREAS WITH ACCESS LIMITED TO AUTHORIZED PERSONNEL.
THE MEMORANDUM STATED THAT ENFORCEMENT OF THE SECURITY REQUIREMENTS HAD
BEEN "RATHER RELAXED DUE TO OUR PHYSICAL LAYOUT", BUT THAT THE
REGULATIONS WOULD NOW BE ENFORCED AS THE REMODELING HAD BEEN COMPLETED.
THE REMODELING REFERRED TO IN THE MEMORANDUM CONSISTED OF ERECTING
PARTITIONS TO WALL OFF AN AREA ON THE SAME FLOOR, AND MOVING THE RETURNS
CLASSIFICATIONS SECTION AND THE AUDIT SERVICE BRANCH WITHIN THAT SPACE.
/8/ THE FOLLOWING DAY, BENNETT ISSUED A MEMORANDUM TO THE EMPLOYEES
UNDER HIS SUPERVISION (ASSISTANT SECRETARY EXHIBIT 1-C, ATTACHMENT 6)
REMINDING THEM OF THEIR RESPONSIBILITY TO SEE THAT THE SECURITY
REGULATIONS WERE ENFORCED. THE ONLY EXCEPTIONS MADE TO THE RESTRICTIONS
WERE FOR THE SECRETARIES OF THE DIVISION CHIEF AND THE EXAMINATION
BRANCH CHIEFS. THIS WAS TO ALLOW THEM ACCESS TO THE COFFEE MAKER TO GET
COFFEE FOR THEIR RESPECTIVE SUPERVISORS.
IT IS CLEAR THERE WAS NO DISCUSSION BETWEEN MANAGEMENT AND THE UNION
REPRESENTATIVES IN MS. BRICKENS' ABSENCE REGARDING THE REIMPOSED
SECURITY RESTRICTIONS. MANAGEMENT INDICATED THAT IT FELT THERE WAS NO
NEED TO DISCUSS THE MATTER BECAUSE MS. BRICKENS WAS THE ONLY
REPRESENTATIVE OF THE UNION AFFECTED BY THE SECURITY LIMITATIONS.
THEREFORE, A DECISION WAS MADE TO WAIT UNTIL SHE RETURNED TO WORK BEFORE
INFORMING HER OF THE RENEWAL ENFORCEMENT OF THE REGULATIONS.
WHEN MS. BRICKENS RETURNED IN DECEMBER 1975, SHE WAS TOLD BY DAWSON
AND BENNETT THAT THE SECURITY RESTRICTIONS WOULD BE ENFORCED AGAIN. SHE
MENTIONED TO DAWSON THAT IT WOULD IMPEDE HER IN HER REPRESENTATIONAL
DUTIES AS UNION PRESIDENT AND CHIEF STEWARD BECAUSE IT WOULD MAKE IT
DIFFICULT FOR EMPLOYEES TO GET TO HER. SHE ASKED IF THE AREA WHERE HER
DESK WAS LOCATED COULD NOT BE CARVED OUT AS AN EXCEPTION TO THE SECURITY
REQUIREMENTS. DAWSON SAID THIS WAS NOT PERMISSABLE UNDER THE
REGULATIONS, BUT THAT MANAGEMENT WOULD PROVIDE HER WITH THE USE OF THREE
CONFERENCE ROOMS WHICH WERE ADJACENT TO HER OFFICE OFF OF THE PUBLIC
HALLWAY. MANAGEMENT STATED THAT IF THESE ROOMS WERE OCCUPIED AT THE
TIME SHE NEEDED TO CONFER WITH THE EMPLOYEES, ANOTHER ROOM WOULD BE
SECURED FOR HER. MS. BRICKENS CONTINUED TO OBJECT THAT THE SECURITY
REQUIREMENTS WOULD MAKE IT IMPOSSIBLE FOR HER TO CARRY OUT HER DUTIES AS
UNION PRESIDENT.
ON DECEMBER 30, 1975, THE UNION OFFICIALS AND MANAGEMENT MET TO
DISCUSS A NUMBER OF MATTERS. DURING THE COURSE OF DISCUSSION MS.
BRICKENS AGAIN RAISED THE SUBJECT OF THE REIMPOSITION OF THE SECURITY
RESTRICTIONS AND THE LIMITATION IT WOULD PLACE UPON THE EMPLOYEES
SEEKING TO CONFER WITH HER. MANAGEMENT TOOK THE POSITION THAT THE IRS
REGULATIONS COULD NOT BE ALTERED, AND REAFFIRMED THAT ARRANGEMENTS WERE
MADE FOR THE USE OF ONE OF THE THREE AVAILABLE CONFERENCE ROOMS.
MANAGEMENT INDICATED THAT IT WAS AWARE IT WOULD BE AN INCONVENIENCE TO
MS. BRICKENS IN CARRYING OUT HER UNION ACTIVITIES, BUT IT HAD NO CHOICE
OTHER THAN TO PLACE THESE RESTRICTIONS INTO EFFECT. (RESPONDENT
ACTIVITY EXHIBIT NO. 5).
CONTENTION OF THE PARTIES
THE UNION CONTENDS THAT THE PERFORMANCE EVALUATION BY BENNETT ON
SEPTEMBER 15, 1975, WAS BASED ON IMPROPER CONSIDERATIONS RELATING TO HER
POSITION AND INVOLVEMENT AS AN OFFICER OF THE LABOR ORGANIZATION. THE
UNION FURTHER CONTENDS THAT THE RESUMPTION OF THE SECURITY OF
RESTRICTIONS FOR THE CLASSIFICATION AREA IN NOVEMBER 1975, CONSTITUTED A
CHANGE IN EXISTING PRACTICES WHEREBY THE ACTIVITY PERMITTED EMPLOYEES TO
FREELY MEET AND CONFER WITH MS. BRICKENS, AS THE CHIEF REPRESENTATIVE
OF THE LABOR ORGANIZATION. IT IS ARGUED THAT THE ACTIVITY HAD AN
OBLIGATION TO NOTIFY THE UNION PRIOR TO CHANGING THE PRACTICE AND AFFORD
IT AN OPPORTUNITY TO NEGOTIATE ON THE IMPACT THE RESUMED RESTRICTIONS
WOULD HAVE UPON THE EMPLOYEES AND MS. BRICKENS.
THE ACTIVITY ARGUES THAT THE EVALUATION APPRAISAL WAS NOT
DISCRIMINATORY AS THERE WAS NO SHOWING THAT THE RATING WAS MOTIVATED BY
ANTI-UNION ANIMUS ON THE PART OF BENNETT. AS TO THE RENEWED ENFORCEMENT
OF THE SECURITY RESTRICTIONS, THE ACTIVITY TAKES THE POSITION THAT UNDER
SECTION 11(B) OF THE ORDER /9/ THE DUTY TO BARGAIN CONCERNING THE
SECURITY RESTRICTIONS IS SPECIFICALLY EXCLUDED FROM THE NEGOTIATING
PROCESS. WHILE THE ACTIVITY ACKNOWLEDGES THAT THERE IS A DUTY TO
NEGOTIATE ON THE IMPACT OF THE DECISION TO ENFORCE THE SECURITY
REGULATIONS, IT CONTENDS THAT THE UNION OFFICIALS NEVER REQUESTED
NEGOTIATIONS FOR THIS PURPOSE; ALTHOUGH THEY WERE AWARE THAT THE
RESTRICTIONS WERE GOING TO BE RESUMED.
CONCLUDING FINDINGS /10/
CONSIDERING FIRST THE ALLEGATION THAT THE PERFORMANCE APPRAISAL OF
MS. BRICKENS WAS DISCRIMINATORY MOTIVATED, I FIND AND CONCLUDE THAT THE
RECORD EVIDENCE DOES NOT SUPPORT THIS CLAIM. THE TESTIMONY SHOWS THAT
MS. BRICKENS, AS THE SENIOR UNION OFFICIAL RESPONSIBLE FOR REPRESENTING
THE UNIT EMPLOYEES THROUGHOUT THE ENTIRE STATE, RECEIVED NUMEROUS VISITS
AND TELEPHONE CALLS FROM EMPLOYEES ON JOB-RELATED PROBLEMS. THE
AFFIDAVIT OF RAWLEY INDICATES THAT HE DID NOT FIND THIS TO BE AN
IRRITANT, NOR DID HE FEEL THAT IT INTERFERED WITH HER JOB
RESPONSIBILITIES WHILE HE WAS HER SUPERVISOR. IT IS EVIDENT, HOWEVER,
THAT THE CONVERSATIONS, BOTH IN PERSON AND ON THE TELEPHONE, WERE A
SOURCE OF ANNOYANCE AND IRRITATION TO BENNETT. ON ONE OCCASION HE
CALLED THE SUPERVISOR OF A VISITING EMPLOYEE TO ASCERTAIN WHETHER SHE
HAD RECEIVED PERMISSION TO MAKE SUCH A VISIT TO THE UNION OFFICIAL, AS
REQUIRED BY THE NEGOTIATED AGREEMENT. HE ALSO MOVED MS. BRICKENS' DESK
FROM THE CLOSE PROXIMITY TO HIS OFFICE TO A POSITION NEARER TO THE
PUBLIC HALLWAY WHEN THE OFFICES WERE RELOCATED TO THE NEW FEDERAL
BUILDING. HOWEVER, THERE IS A DISTINCTION BETWEEN IRRITATION ON THE
PART OF A SUPERVISOR OVER NUMEROUS VISITS AND CONVERSATIONS RELATING TO
UNION MATTERS AND ACTIONS WHICH MANIFEST ANTI-UNION ANIMUS. AT NO TIME
DID BENNETT INTERFERE WITH MS. BRICKENS PERFORMANCE OF HER
RESPONSIBILITIES AS A UNION OFFICIAL. INDEED, IT MIGHT BE SAID THAT THE
RELOCATION OF HER DESK WAS AS MUCH FOR HER CONVENIENCE AS HIS, SINCE IT
AFFORDED HER MORE PRIVACY IN HER CONVERSATIONS BOTH ON THE TELEPHONE AND
FACE TO FACE WITH EMPLOYEES. NOR CAN IT BE SAID THAT WHEN BENNETT
CONTACTED THE SUPERVISOR OF ONE OF THE EMPLOYEES WHO WAS CONVERSING WITH
MS. BRICKENS, THAT HE WAS DOING ANYTHING OTHER THAN ASCERTAINING WHETHER
THE REQUIREMENTS OF THE NEGOTIATED AGREEMENT WERE BEING FOLLOWED.
IT IS WELL UNDERSTOOD THAT A PERFORMANCE EVALUATION IS A SUBJECTIVE
APPRAISAL BY A SUPERVISOR. DEPARTMENT OF TRANSPORTATION, FEDERAL
AVIATION ADMINISTRATION, HOUSTON AREA OFFICE-SOUTHWEST REGION, A/SLMR
NO. 126 (JANUARY 24, 1972). THE MERE FACT THAT ALL OF MS. BRICKENS'
PRIOR APPRAISALS BY RAWLEY WERE NUMERICALLY HIGHER THAN THE APPRAISAL
GIVEN BY BENNETT ON SEPTEMBER 15, 1975, DOES NOT, IN THE ABSENCE OF
EVIDENCE OF ANTIPATHY TOWARD HER BECAUSE OF HER UNION ACTIVITIES,
INDICATE THAT THE APPRAISAL WAS DISCRIMINATORY MOTIVATED. IT SHOULD BE
NOTED THAT BOTH BENNETT AND RAWLEY CONSIDERED HER TO BE A SATISFACTORY
EMPLOYEE AND THEIR RATINGS REFLECTED THIS JUDGEMENT. ON THE BASIS OF
THE RECORD EVIDENCE, I FIND THAT THE UNION HAS FAILED TO ESTABLISH THAT
BENNETT'S EVALUATION OF MS. BRICKENS WAS ANYTHING OTHER THAN HIS HONEST
ASSESSMENT OF HER PERFORMANCE OF HER JOB DUTIES. /11/
ACCORDINGLY, I FIND AND CONCLUDE THAT THE RECORD DOES NOT SUPPORT A
FINDING THAT THE EVALUATION APPRAISAL OF MS. BRICKENS WAS
DISCRIMINATORY, OR THAT HER RATING WAS LOWERED BECAUSE SHE WAS INVOLVED
IN ACTIVITIES ON BEHALF OF THE LABOR ORGANIZATION. FOR THIS REASON, I
FIND THAT THE UNION HAS FAILED TO SUSTAIN THE BURDEN OF PROOF BY A
PREPONDERANCE OF THE EVIDENCE AS REQUIRED BY SECTION 203.15 OF THE
REGULATIONS, AND THAT THIS ALLEGATION OF THE COMPLAINT MUST BE
DISMISSED.
THE ISSUE REGARDING THE RESUMPTION OF THE SECURITY RESTRICTIONS FOR
THE CLASSIFICATION AREA PRESENTS A CLOSER QUESTION IN MY OPINION. IT IS
CLEAR FROM ALL OF THE TESTIMONY AND THE EVIDENCE IN THIS RECORD THAT
PRIOR TO MOVING INTO THE NEW FEDERAL OFFICE BUILDING, MANAGEMENT
OFFICIALS WERE VERY LAX ABOUT ENFORCING THE LIMITED ACCESS REQUIREMENTS
AS THEY RELATED TO THE RETURNS PROGRAM SECTION. THIS WAS DUE, IN PART,
TO THE PHYSICAL ARRANGEMENTS WHEN THAT SECTION WAS LOCATED IN THE
CENTURY AND CONSOLIDATED BUILDINGS. THE CREDITABLE TESTIMONY OF DAWSON
INDICATES THAT THE ACTUAL CLASSIFICATION OF TAX RETURNS WAS BEING
PERFORMED IN THE OLD FEDERAL BUILDING, AND THERE WAS NO REAL NEED TO
IMPOSE THE RESTRICTIONS ON THE SECTION WHERE MS. BRICKENS WAS EMPLOYED.
ALTHOUGH THE RESTRICTIONS WERE ENFORCED FOR APPROXIMATELY A MONTH WHEN
THE RETURNS PROGRAM UNIT MOVED INTO THE OLD FEDERAL BUILDING, THEY WERE
RELAXED BY NECESSITY WHEN THE ENTIRE OFFICE MOVED INTO THE NEW BUILDING
BECAUSE OF THE FAILURE TO PLAN FOR THE PARTITIONING-OFF OF THE AUDIT
BRANCH AND THE CLASSIFICATION AREA. WHILE IT IS NOT CLEAR THAT
MANAGEMENT SPECIFICALLY INFORMED THE UNION THAT THE SECURITY
REQUIREMENTS WOULD BE REINSTATED ONCE IN THE NEW OFFICE BUILDING, THERE
IS INDICATION-- AT LEAST IN JUNE 1975-- THAT MANAGEMENT DID ADVISE THE
UNION REPRESENTATIVES THAT THE AUDIT BRANCH AND THE CLASSIFICATION AREA
WOULD BE MOVED ONCE PARTITIONS WERE INSTALLED.
HOWEVER, IT IS MANAGEMENT'S CONDUCT AFTER THE JUNE MEETING WHICH
GIVES RISE TO THE CENTRAL ISSUE ON THIS ASPECT OF THE CASE. ONCE THE
REMODELING WAS COMPLETED, MANAGEMENT IMMEDIATELY ISSUED A MEMORANDUM
INDICATING THAT THE RESTRICTIONS WERE REIMPOSED. MS. BRICKENS WAS
ABSENT FROM WORK FOR PERSONAL REASONS AT THE TIME THE MEMORANDA WERE
ISSUED TO AUDIT MANAGERS AND EMPLOYEES IN THE CLASSIFICATION SECTION.
IT IS EVIDENT THAT NONE OF THE UNION OFFICIALS WERE FORMALLY NOTIFIED OF
THE DECISION PRIOR TO ITS IMPLEMENTATION, AND THUS WERE NOT AFFORDED AN
OPPORTUNITY TO CONSULT AND CONFER ON THE IMPACT THE RESTRICTIONS WOULD
HAVE ON UNIT EMPLOYEES WHO HAD ENJOYED UNLIMITED ACCESS TO THE CHIEF
STEWARD. MANAGEMENT'S EXPLANATION FOR THIS ACTION WAS THAT MS. BRICKENS
WAS THE ONLY PERSON AFFECTED AND THERE WAS NO NEED TO DISCUSS THE MATTER
UNTIL SHE RETURNED TO WORK. IN MY OPINION, THIS CONDUCT FALLS SHORT OF
THE OBLIGATIONS IMPOSED UPON MANAGEMENT BY THE EXECUTIVE ORDER. WHEN AN
AGENCY ACTION FALLS WITHIN THE SCOPE OF SECTION 11(B) OF THE ORDER,
THERE IS STILL AN OBLIGATION TO GIVE REASONABLE NOTICE TO THE EXCLUSIVE
REPRESENTATIVE TO AFFORD IT AMPLY OPPORTUNITY TO REQUEST BARGAINING--
NOT ON THE DECISION, BUT ON THE PROCEDURES INVOLVED AND THE IMPACT ON
EMPLOYEES ADVERSELY AFFECTED-- PRIOR TO ITS IMPLEMENTATION. /12/ IN THE
INSTANT CASE THERE WAS NO ADVANCE NOTIFICATION, NOR WAS THIS FAILURE
JUSTIFIED BY THE FACT THAT MS. BRICKENS WAS ON LEAVE AT THE TIME. THERE
WERE OTHER UNION OFFICIALS AVAILABLE, AND THE DECISION AFFECTED
EMPLOYEES GENERALLY AS WELL AS MS. BRICKENS IN HER CAPACITY AS PRESIDENT
AND CHIEF STEWARD. ALTHOUGH THE ACTIVITY ASSERTS THAT THE UNION WAS
NOTIFIED OF THIS ACTION DURING THE MEETING IN JUNE 1975, I DO NOT FIND
THAT THE UNION OFFICIALS WERE SPECIFICALLY INFORMED THAT THE SECURITY
LIMITATIONS WOULD BE RESUMED AT THIS MEETING. THEY WERE ADVISED THAT
THE AUDIT BRANCH AND THE CLASSIFICATION AREA WOULD BE MOVED ONCE THE
PARTITIONS WERE INSTALLED. IF THIS IMPLIED THAT THE SECURITY
ARRANGEMENTS WOULD THEN BE ENFORCED, I FIND THAT IT WAS NOT SPECIFIC OR
SUFFICIENT NOTIFICATION TO SATISFY THE REQUIREMENTS UNDER THE ORDER.
NOR DID THE SUBSEQUENT DISCUSSION WITH MS. BRICKENS CURE THE VIOLATION.
IN EACH OF THESE DISCUSSIONS MANAGEMENT PRESENTED THE UNION WITH A FAIT
ACCOMPLI, AND THERE WAS NO MEANINGFUL BARGAINING ON PROCEDURES OR
IMPACT. I AM NOT UNMINDFUL THAT MANAGEMENT MADE AVAILABLE TO THE UNION
THE CONFERENCE ROOMS OUTSIDE THE RESTRICTED AREA. BUT THIS WAS SOLELY
MANAGEMENT'S DECISION-- MADE WITHOUT CONSULTING OR CONFERRING WITH THE
UNION REPRESENTATIVES. IT IS ENTIRELY POSSIBLE THAT THE PARTIES WOULD
HAVE AGREED TO THE SOLUTION DIRECTED BY MANAGEMENT, OR THEY MAY NOT
HAVE, BUT THAT IS NOT THE ISSUE HERE. IT IS THE OPPORTUNITY TO ENGAGE
IN MEANINGFUL NEGOTIATION IN SITUATIONS AS PRESENTED BY THIS CASE, THAT
THE ORDER PRESERVES IN ORDER TO FOSTER HARMONY IN LABOR-MANAGEMENT
RELATIONS.
ACCORDINGLY, I FIND THAT THE ACTIVITY VIOLATED SECTION 19(A)(6) OF
THE EXECUTIVE ORDER BY RESUMING ENFORCEMENT OF THE SECURITY RESTRICTIONS
IN NOVEMBER 1975, WITHOUT FIRST NOTIFYING THE UNION AND AFFORDING IT A
REASONABLE OPPORTUNITY TO NEGOTIATE ON THE PROCEDURES INVOLVED AND THE
IMPACT ON THE EMPLOYEES ADVERSELY AFFECTED BY THE DECISION. /13/ THIS
CONDUCT ALSO HAS A CONCOMMITANT COERCIVE EFFECT UPON AND INTERFERED WITH
THE RIGHTS ASSURED EMPLOYEES UNDER SECTION 19(A)(1) OF THE ORDER. I DO
NOT FIND, HOWEVER, THAT THE ABOVE CONDUCT VIOLATES SECTION 19(A)(2) OF
THE ORDER. IT IS EVIDENT FROM THE CIRCUMSTANCES OF THIS CASE THAT THE
CONDUCT WAS NOT INTENDED TO DISCOURAGE UNION MEMBERSHIP NOR DID IT HAVE
SUCH AN EFFECT.
HAVING FOUND THAT THE RESPONDENT ACTIVITY HAS ENGAGED IN CONDUCT
WHICH VIOLATES SECTION 19(A)(1) AND (6), I SHALL RECOMMEND THAT THE
ASSISTANT SECRETARY ADOPT THE FOLLOWING RECOMMENDED ORDER DESIGNED TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED.
RECOMMENDED ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED AND
SECTION 203.26(B) OF THE REGULATIONS PROMULGATED THEREUNDER, THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS HEREBY
ORDERS THAT DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
INDIANAPOLIS, INDIANA, SHALL:
1. CEASE AND DESIST FROM:
(A) RESUMING ENFORCEMENT OF SECURITY AREA RESTRICTIONS REQUIRED BY
REGULATIONS WITHOUT
FIRST NOTIFYING NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER
49, AS THE EXCLUSIVE
BARGAINING REPRESENTATIVE, AND AFFORDING IT A REASONABLE OPPORTUNITY
TO CONSULT AND CONFER ON
THE PROCEDURES INVOLVED AND THE IMPACT OF THE SECURITY RESTRICTIONS
ON EMPLOYEES ADVERSELY
AFFECTED BY THEM.
(B) IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN, OR COERCE
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 EXECUTIVE ORDER.
(A) NOTIFY NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 49 OF
ANY INTENDED RESUMPTION
OF ENFORCEMENT OF SECURITY RESTRICTIONS AND, UPON REQUEST, CONSULT
AND CONFER IN GOOD FAITH ON
THE PROCEDURES INVOLVED AND THE IMPACT ON EMPLOYEES ADVERSELY
AFFECTED THEREBY.
(B) POST AT THE INTERNAL REVENUE SERVICE, INDIANAPOLIS, INDIANA,
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 ADMINISTRATION DIVISION AND 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 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 TWENTY (20) DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS
HAVE BEEN TAKEN TO COMPLY
HEREWITH.
GORDON J. MYATT
ADMINISTRATIVE LAW JUDGE
DATED: 21 APR 1977
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS AND IN ORDER TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
AMENDED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT RESUME ENFORCEMENT OF SECURITY AREA RESTRICTIONS WITHOUT
FIRST NOTIFYING NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 49
AND AFFORDING THAT LABOR ORGANIZATION A REASONABLE OPPORTUNITY TO
CONSULT AND CONFER ON THE PROCEDURES INVOLVED AND THE IMPACT OF THE
RESUMPTION ON EMPLOYEES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
AMENDED.
WE WILL NOTIFY THE ABOVE LABOR ORGANIZATION OF ANY RESUMPTION OF
SECURITY AREA RESTRICTIONS AND AFFORD IT A REASONABLE OPPORTUNITY, UPON
REQUEST, TO CONSULT AND CONFER ON THE PROCEDURES INVOLVED AND THE IMPACT
OF THAT DECISION ON EMPLOYEES.
AGENCY OR ACTIVITY
DATED . . . BY . . .
(SIGNATURE)
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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES, LABOR MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, WHOSE
ADDRESS IS: ROOM 1033-- B FEDERAL BUILDING 230 S. DEARBORN STREET,
CHICAGO, ILLINOIS 60604.
/1/ THE TIME FOR FILING BRIEFS WAS ORIGINALLY SET FOR DECEMBER 20,
1976. BECAUSE OF THE FAILURE OF THE OFFICIAL REPORTER TO SUPPLY COPIES
OF THE TRANSCRIPT TO THE PARTIES THE TIME FOR SUBMITTING BRIEFS WAS
EXTENDED ON THREE DIFFERENT OCCASIONS. THE FINAL EXTENSION WAS UNTIL
MARCH 25, 1977.
/2/ THE ABOVE RECITAL OF MS. BRICKENS' DUTIES IS IN GENERAL TERMS AND
DOES NOT PURPORT TO INCLUDE ALL OF HER JOB-RELATED RESPONSIBILITIES.
HER JOB DESCRIPTION IS IN EVIDENCE AS COMPLAINANT UNION'S EXHIBIT NO. 2.
HOWEVER, A NUMBER OF THE DUTIES SET FORTH IN THE JOB DESCRIPTION HAVE
BEEN CHANGED OR REMOVED BECAUSE OF CHANGES IN IRS PROCEDURES OR
CONSOLIDATION OF FUNCTIONS FOR REASONS OF EFFICIENCY.
/3/ RAWLEY RETIRED TO FLORIDA AND AN AFFIDAVIT GIVEN BY HIM WAS
RECEIVED IN EVIDENCE, OVER THE OBJECTION OF THE RESPONDENT ACTIVITY.
(COMPLAINANT UNION EXHIBIT NO. 1). THE AFFIDAVIT IS CONSIDERED HEREIN
ONLY INSOFAR AS IT RELATES TO RAWLEY'S SATISFACTION WITH BRICKENS JOB
PERFORMANCE AND THE FREEDOM OF ACCESS EMPLOYEES HAD TO COME INTO
BRICKENS' AREA TO DISCUSS JOB-RELATED PROBLEMS WITH HER.
/4/ SEE ATTACHMENT TO ASSISTANT SECRETARY EXHIBIT NO. 1-C.
/5/ A RATING OF 3 IS A SATISFACTORY RATING UNDER THE TERMS OF THE
NEGOTIATED AGREEMENT.
/6/ ASSISTANT SECRETARY EXHIBIT 1-C; COMPLAINANT UNION EXHIBIT NOS.
3, 4 AND 5.
/7/ WHEN QUESTIONED AT THE HEARING, BENNETT TESTIFIED THAT AT NO TIME
DID HE TAKE INTO ACCOUNT BRICKENS' ABSENCE FROM THE JOB; WHETHER
UNION-RELATED OR FOR PERSONAL REASONS. HE STATED THAT HIS EVALUATION
WAS BASED ON THE EMPLOYEE'S JOB PERFORMANCE, AND ABSENCES, REGARDLESS OF
REASON, DID NOT EFFECT THE EVALUATION EITHER WAY.
/8/ THIS HAD BEEN THE SUBJECT OF A DISCUSSION AT A LABOR-MANAGEMENT
MEETING IN JUNE 1975. MS. BRICKENS TESTIFIED THAT NOTHING WAS SAID AT
THIS MEETING ABOUT ENFORCING THE ACCESS RESTRICTIONS. HOWEVER, DAWSON
RECALLED THAT IT WAS MENTIONED AND THE NOTES SUMMARIZING THAT MEETING
(ALTHOUGH NOT SIGNED BY BRICKENS) INDICATED THERE WAS DISCUSSION ON
"SHIFTING THE SERVICE (AUDIT) BRANCH AND THE RETURNS CLASSIFICATION"
SECTION. (RESPONDENT ACTIVITY EXHIBIT NO. 3).
/9/ SECTION 11(B) OF THE ORDER STATES IN PERTINENT PART:
IN PRESCRIBING REGULATIONS RELATING TO PERSONNEL POLICIES AND
PRACTICES AND WORKING
CONDITIONS, AN AGENCY SHALL HAVE DUE REGARD FOR THE OBLIGATION
IMPOSED BY PARAGRAPH (A) OF
THIS SECTION. HOWEVER, THE OBLIGATION TO MEET AND CONFER DOES NOT
INCLUDE MATTERS WITH
RESPECT TO . . . ITS INTERNAL SECURITY PRACTICES.
/10/ AS NOTED, NO FINDINGS ARE MADE HEREIN CONCERNING THE WITHDRAWAL
OF DUTIES OR THE FAILURE TO ASSIGN WORK TO MS. BRICKENS.
/11/ VETERANS ADMINISTRATION, VETERANS ADMINISTRATION DATA PROCESSING
CENTER, AUSTIN, TEXAS, A/SLMR NO. 523 (JUNE 24, 1975).
/12/ CF. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
BROOKHAVEN SERVICE CENTER, A/SLMR NO. 814 (MARCH 29, 1977); SOUTHEAST
EXCHANGE REGION OF THE ARMY AND AIR FORCE EXCHANGE SERVICE, ROSEWOOD
WAREHOUSE, COLUMBIA, SOUTH CAROLINA, A/SLMR NO. 656 (MAY 28, 1976).
/13/ I DO NOT FIND THAT THE FACTS OF THIS CASE ARE CONTROLLED BY THE
RECENT DECISION IN INTERNAL REVENUE SERVICE, BROOKHAVEN SERVICE CENTER,
SUPRA. THERE IS NO QUESTION HERE THAT THE ACTIVITY'S ACTION CAUSED A
CHANGE BY RESTRICTING ACCESS WHICH WAS PREVIOUSLY PERMITTED.
7 A/SLMR 908; P. 829; CASE NO. 22-5283(CA); SEPTEMBER 23, 1977.
SEPTEMBER 23, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
DEPARTMENT OF DEFENSE,
U.S. NAVY, NORFOLK NAVAL SHIPYARD
A/SLMR NO. 908
THIS CASE AROSE AS A RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT
FILED BY TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL,
AFL-CIO (COMPLAINANT) ALLEGING THAT THE RESPONDENT VIOLATED SECTION
19(A)(1) AND (6) OF THE ORDER BY DENYING UNION REPRESENTATION TO FOUR
PROBATIONARY EMPLOYEES AT MEETINGS WHERE DISCIPLINARY ACTION WAS
DISCUSSED; THE RESPONDENT VIOLATED SECTION 19(A)(2) OF THE ORDER BY
DISCOURAGING EMPLOYEES FROM JOINING THE COMPLAINANT BY DENYING
REPRESENTATION TO FOUR PROBATIONARY EMPLOYEES AT THE MEETINGS WHERE
CONTEMPLATED DISCIPLINARY ACTION WAS DISCUSSED, WHILE PERMITTING UNION
REPRESENTATION TO CAREER EMPLOYEES IN SIMILAR CIRCUMSTANCES; AND THE
RESPONDENT VIOLATED SECTION 19(A)(6) OF THE ORDER BY UNILATERALLY
ESTABLISHING AND IMPLEMENTING A SYSTEM FOR DISCIPLINING PROBATIONARY
EMPLOYEES DIFFERENT FROM THAT ESTABLISHED BY THE NEGOTIATED AGREEMENT
FOR DISCIPLINING CAREER EMPLOYEES.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT UNDER THE ASSISTANT
SECRETARY'S PRIOR HOLDINGS THE RESPONDENT DID NOT VIOLATE THE ORDER AS
ALLEGED AND RELUCTANTLY RECOMMENDED THAT THE COMPLAINT BE DISMISSED IN
ITS ENTIRETY. IN REACHING THIS DETERMINATION, HE FOUND THAT ALTHOUGH
THE INDIVIDUAL INTERVIEWS INVOLVING THE FOUR PROBATIONARY EMPLOYEES WERE
"FORMAL" IN NATURE, THEY DID NOT PERTAIN TO "GRIEVANCES, PERSONNEL
POLICIES AND PRACTICES OR OTHER MATTERS AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES IN THE UNIT" WITHIN THE MEANING OF SECTION 10(E)
OF THE ORDER. FURTHER, WHILE THE RESPONDENT ACCORDED PROBATIONARY
EMPLOYEES LESS RIGHTS THAN NON-PROBATIONARY EMPLOYEES UPON THE
IMPOSITION OF DISCIPLINE, AND SUCH DISTINCTION MAKES UNION MEMBERSHIP
LESS ATTRACTIVE TO PROBATIONARY EMPLOYEES, THERE WAS NO VIOLATION OF
SECTION 19(A)(2) OF THE ORDER BECAUSE RESPONDENT'S CONDUCT WAS NOT BASED
ON, OR MOTIVATED, AT LEAST IN PART, BY THE UNION MEMBERSHIP OR ACTIVITY
OF THE EMPLOYEES INVOLVED. THE ADMINISTRATIVE LAW JUDGE ALSO FOUND THAT
THE COMPLAINANT'S ALLEGATION THAT THE RESPONDENT VIOLATED SECTION
19(A)(6) OF THE ORDER BY THE UNILATERAL PROMULGATION OF INSTRUCTION
12300.1 WAS NOT PROPERLY BEFORE HIM BECAUSE, ALTHOUGH THE COMPLAINANT
AMENDED THE COMPLAINT TO INCLUDE AN ALLEGATION OF SECTION 19(A)(6) IN
THIS REGARD, IT DID NOT AMEND THE FACTUAL ALLEGATIONS TO INCLUDE THE
BASIS OF THE ALLEGED VIOLATION. FINALLY, THE ADMINISTRATIVE LAW JUDGE
DETERMINED THAT SECTION 19(D) OF THE ORDER AND THE ASSISTANT SECRETARY'S
REPORT NO. 49 DID NOT PRECLUDES HIM FROM DECIDING THE MATTER.
THE ASSISTANT SECRETARY DEFERRED HIS DECISION ON THE SUBJECT CASE
PENDING THE FEDERAL LABOR RELATIONS COUNCIL'S (COUNCIL) STATEMENT ON
MAJOR POLICY ISSUE CONCERNING THE REPRESENTATION RIGHTS OF EMPLOYEES
UNDER THE ORDER. THE COUNCIL'S STATEMENT WAS ISSUED ON DECEMBER 2,
1976.
WHILE AGREEING WITH THE ADMINISTRATIVE LAW JUDGE'S CONCLUSION WITH
RESPECT TO THE SECTION 19(A)(2) ALLEGATION, THE ASSISTANT SECRETARY
FOUND THAT THE MEETINGS CALLED BY MANAGEMENT FOR THE PURPOSE OF
NOTIFYING THE FOUR PROBATIONARY EMPLOYEES IN QUESTION OF THEIR
TERMINATIONS WERE FORMAL DISCUSSIONS WITHIN THE MEANING OF SECTION 10(E)
OF THE ORDER. IN THIS REGARD, HE NOTED PARTICULARLY THAT THE MEETINGS
INVOLVED THE TERMINATION OF PROBATIONARY EMPLOYEES, WHO, EXCEPT IN A
LIMITED NUMBER OF INSTANCES NOT RELEVANT IN THIS CASE, HAVE NO STATUTORY
APPEAL RIGHTS AND, THEREFORE, NO RIGHT OF REPRESENTATION UPON APPEAL
FROM AN AGENCY ACTION. ADDITIONALLY, HE NOTED THAT THE MEETINGS WERE
CALLED SPECIFICALLY FOR THE PURPOSE OF TERMINATING THE EMPLOYEES AND NOT
FOR INVESTIGATORY PURPOSES. UNDER THE CIRCUMSTANCES, HE VIEWED SUCH
MEETINGS AS NOT ONLY SUBSTANTIALLY EFFECTING PERSONNEL POLICIES AND
PRACTICES AS THEY RELATED TO THE SPECIFIC EMPLOYEES' SECURITY, BUT ALSO
SUBSTANTIALLY AFFECTING PERSONNEL POLICIES AND PRACTICES AS THEY
PERTAINED TO OTHER EMPLOYEES IN THE BARGAINING UNIT.
ACCORDINGLY, THE ASSISTANT SECRETARY FOUND THAT THE RESPONDENT'S
REFUSAL TO ALLOW THE COMPLAINANT TO PARTICIPATE IN THE MEETINGS INVOLVED
AND ITS DENIAL OF THE EMPLOYEES' REQUEST FOR REPRESENTATION AT SUCH
MEETINGS WERE VIOLATIVE OF SECTION 19(A)(1) AND (6) OF THE ORDER AND
ISSUED AN APPROPRIATE REMEDIAL ORDER.
DEPARTMENT OF DEFENSE,
U.S. NAVY, NORFOLK NAVAL SHIPYARD
RESPONDENT
CASE NO. 22-5283(CA)
AND
TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO
COMPLAINANT
DECISION AND ORDER
ON MARCH 4, 1975, ADMINISTRATIVE LAW JUDGE MILTON KRAMER ISSUED HIS
RECOMMENDED DECISION 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.
ON JULY 24, 1975, THE ASSISTANT SECRETARY INFORMED THE COMPLAINANT
AND THE RESPONDENT THAT IT WOULD EFFECTUATE THE PURPOSES AND POLICIES OF
THE ORDER TO DEFER HIS DECISION IN THE SUBJECT CASE PENDING THE FEDERAL
LABOR RELATIONS COUNCIL'S (COUNCIL) RESOLUTION OF A MAJOR POLICY ISSUE
WHICH HAS GENERAL APPLICATION TO THE FEDERAL LABOR-MANAGEMENT RELATIONS
PROGRAM.
DOES AN EMPLOYEE IN A UNIT OF EXCLUSIVE RECOGNITION HAVE A PROTECTED
RIGHT UNDER THE ORDER
TO ASSISTANCE (POSSIBLY INCLUDING PERSONAL 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?
ON DECEMBER 2, 1976, THE COUNCIL ISSUED ITS STATEMENT ON MAJOR POLICY
ISSUE, FLRC NO. 75P-2, REPORT NO. 116, FINDING, IN PERTINENT PART, THAT:
1. AN EMPLOYEE IN A UNIT OF EXCLUSIVE RECOGNITION HAS A PROTECTED
RIGHT UNDER THE LAST SENTENCE OF SECTION 10(E) OF THE ORDER TO THE
ASSISTANCE OR REPRESENTATION BY THE EXCLUSIVE REPRESENTATIVE, UPON THE
REQUEST OF THE EMPLOYEE, WHEN HE IS SUMMONED TO A FORMAL DISCUSSION WITH
MANAGEMENT CONCERNING GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR
OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE
UNIT; AND
2. AN EMPLOYEE IN A UNIT OF EXCLUSIVE RECOGNITION DOES NOT HAVE A
PROTECTED RIGHT UNDER THE ORDER TO ASSISTANCE OR REPRESENTATION AT A
NONFORMAL INVESTIGATIVE MEETING OR INTERVIEW TO WHICH HE IS SUMMONED BY
MANAGEMENT; BUT SUCH RIGHT MAY BE ESTABLISHED THROUGH NEGOTIATIONS
CONDUCTED BY THE EXCLUSIVE REPRESENTATIVE AND THE AGENCY IN ACCORDANCE
WITH SECTION 11(A) OF THE 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
THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE COMPLAINANT'S
EXCEPTIONS, I HEREBY ADOPT THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS, TO THE EXTENT CONSISTENT HEREIN.
THE AMENDED COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT VIOLATED
SECTION 19(A)(1), (2), (5) AND (6) OF THE ORDER. IN ESSENCE, THE
COMPLAINANT CONTENDS THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND
(6) OF THE ORDER BY DENYING UNION REPRESENTATION TO FOUR PROBATIONARY
EMPLOYEES AT MEETINGS WHERE DISCIPLINARY ACTION WAS DISCUSSED AND
IMPOSED; THE RESPONDENT VIOLATED SECTION 19(A)(2) OF THE ORDER BY
DISCOURAGING EMPLOYEES FROM JOINING THE UNION BY DENYING REPRESENTATION
TO FOUR PROBATIONARY EMPLOYEES AT MEETINGS WHERE DISCIPLINARY ACTION WAS
DISCUSSED AND IMPOSED, WHILE PERMITTING UNION REPRESENTATION TO CAREER
EMPLOYEES IN SIMILAR CIRCUMSTANCES; AND THE RESPONDENT VIOLATED SECTION
19(A)(6) OF THE ORDER BY UNILATERALLY ESTABLISHING AND IMPLEMENTING A
SYSTEM FOR DISCIPLINING PROBATIONARY EMPLOYEES DISTINCT FROM THAT
ESTABLISHED BY THE NEGOTIATED AGREEMENT FOR DISCIPLINING CAREER
EMPLOYEES.
AS NOTED ABOVE, THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE
INSTANT COMPLAINT BE DISMISSED IN ITS ENTIRETY. IN REACHING THIS
DETERMINATION, HE NOTED THAT WHILE A ROUNDED SYSTEM OF LABOR RELATIONS
WOULD ENTITLE AN EMPLOYEE, IN A SITUATION SUCH AS WAS INVOLVED HEREIN,
TO HAVE HIS UNION REPRESENT HIM AT HIS MEETING WITH MANAGEMENT, HE WAS
BOUND BY PREVIOUS DECISIONS OF THE ASSISTANT SECRETARY. ACCORDINGLY, HE
FOUND THAT ALTHOUGH THE INDIVIDUAL MEETINGS INVOLVING THE FOUR
PROBATIONARY EMPLOYEES WERE "FORMAL" IN NATURE, THEY DID NOT PERTAIN TO
"GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS
AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT" WITHIN
THE MEANING OF SECTION 10(E) OF THE ORDER. FURTHER, WHILE THE
RESPONDENT ACCORDED PROBATIONARY EMPLOYEES LESS RIGHTS THAN
NON-PROBATIONARY EMPLOYEES UPON THE IMPOSITION OF DISCIPLINE, AND SUCH
DISTINCTION MAKES UNION MEMBERSHIP LESS ATTRACTIVE TO PROBATIONARY
EMPLOYEES, IN THE ADMINISTRATIVE LAW JUDGE'S VIEW, THERE WAS NO
VIOLATION OF SECTION 19(A)(2) OF THE ORDER BECAUSE THE RESPONDENT'S
CONDUCT WAS NOT BASED ON, OR MOTIVATED, AT LEAST IN PART, BY THE UNION
MEMBERSHIP OR ACTIVITY OF THE EMPLOYEES INVOLVED. WITH RESPECT TO THE
COMPLAINANT'S ALLEGATION THAT THE RESPONDENT VIOLATED SECTION 19(A)(6)
OF THE ORDER BY THE UNILATERAL PROMULGATION OF INSTRUCTION 12300.1 /1/,
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT SUCH ALLEGATION WAS NOT
PROPERLY BEFORE HIM BECAUSE, ALTHOUGH THE COMPLAINANT AMENDED THE
COMPLAINT TO INCLUDE AN ALLEGATION OF 19(A)(6) IN THIS REGARD, IT DID
NOT AMEND THE FACTUAL ALLEGATIONS TO INCLUDE THE BASIS OF THE ALLEGED
VIOLATION. FURTHER, THE ADMINISTRATIVE LAW JUDGE DETERMINED THAT
SECTION 19(D) OF THE ORDER AND THE ASSISTANT SECRETARY'S REPORT NO. 49
DID NOT PRECLUDE HIM FROM DECIDING THE MATTERS BEFORE HIM.
IN ITS EXCEPTIONS, THE COMPLAINANT ARGUED THAT THE ADMINISTRATIVE LAW
JUDGE ERRED IN FINDING THAT THE INDIVIDUAL MEETINGS WITH EACH OF THE
FOUR EMPLOYEES INVOLVED HEREIN WERE NOT "FORMAL DISCUSSIONS" WITHIN THE
MEANING OF SECTION 10(E) OF THE ORDER; THAT THE EMPLOYEES WERE ENTITLED
TO REPRESENTATION UNDER THE PROVISIONS OF THE PARTIES' NEGOTIATED
AGREEMENT; AND THAT THE ADMINISTRATIVE LAW JUDGE ERRED IN FINDING THAT
THE RESPONDENT'S DENIAL OF A PROBATIONARY EMPLOYEE'S RIGHT TO BE
REPRESENTED DID NOT VIOLATE SECTION 19(A)(2) OF THE ORDER.
THE ESSENTIAL FACTS IN THE CASE, WHICH ARE NOT IN DISPUTE, ARE SET
FORTH, IN DETAIL, IN THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION, AND I SHALL REPEAT THEM ONLY TO THE EXTENT NECESSARY.
EMPLOYEES BANKS, COX, HAROLD AND KNECHT, PROBATIONARY EMPLOYEES IN
THEIR FIRST YEAR OF EMPLOYMENT, WERE EMPLOYED IN THE RESPONDENT'S SHOP
51, WHICH IS PART OF THE BARGAINING UNIT REPRESENTED EXCLUSIVELY BY THE
COMPLAINANT. DURING THE 12 HOUR SHIFT ON MARCH 3 AND 4, 1974, THEY WERE
ASSIGNED CERTAIN DUTIES BY THEIR SUPERVISOR. UPON COMPLETION OF THEIR
ASSIGNMENT, AND WHILE FOLLOWING THE SPECIFIC INSTRUCTIONS OF THEIR
SUPERVISOR TO AWAIT, UPON COMPLETION OF THE ASSIGNED TASK, HIS RETURN,
THEY WERE DISCOVERED SLEEPING BY FOREMAN ELDRIDGE, WHO REPORTED THE
INCIDENT IN WRITING TO SHOP 51 SUPERINTENDENT ROBERT B. MCDONALD. ON
MARCH 5, 1974, PURSUANT TO ARTICLE 31 OF THE PARTIES' NEGOTIATED
AGREEMENT, MCDONALD ORDERED WALTON, THE ADMINISTRATIVE OFFICER OF SHOP
51, TO APPOINT A SUPERVISOR OTHER THAN ELDRIDGE TO CONDUCT A "PRE-ACTION
INVESTIGATION." /2/ WALTON DESIGNATED GAY, A FOREMAN IN SHOP 51, TO
CONDUCT THE "PRE-ACTION INVESTIGATION." GAY HELD A MEETING ON MARCH 5
WITH THE FOUR EMPLOYEES AND THE COMPLAINANT'S CHIEF STEWARD FOR SHOP 51,
WHITE. GAY ASKED EACH MAN IF HE WANTED WHITE TO REPRESENT HIM AND THEY
ALL REPLIED IN THE AFFIRMATIVE. GAY INFORMED THE MEN OF THE CHARGES
AGAINST THEM, AND THE PURPOSE OF THE INVESTIGATION. WHITE ASKED FOR A
COUPLE OF DAYS TO PREPARE TO REPRESENT THE MEN, AND GAY AGREED.
ON MARCH 7, 1974, GAY TOLD WHITE THAT SUPERINTENDENT MCDONALD HAD
TAKEN OVER THE MATTER. MCDONALD HAD DONE SO BECAUSE HE HAD BEEN ADVISED
BY WALTON THAT SINCE THE EMPLOYEES WERE PROBATIONARY, THERE WAS NO
NECESSITY FOR A "PRE-ACTION INVESTIGATION" UNDER THE PROVISIONS OF
NAVSHIPDNOR/SURSHIPFIVE INSTRUCTION 12300.1, WHICH PROVIDED FOR THE
TERMINATION OF PROBATIONARY EMPLOYEES. /3/ THEREAFTER, MCDONALD,
PURSUANT TO NAVSHIPDNOR/SURSHIPFIVE INSTRUCTION 12300.1, SCHEDULED
INDIVIDUAL MEETINGS WITH THE EMPLOYEES INVOLVED ON MARCH 8, 1974, FOR
THE PURPOSE OF TERMINATING THEIR EMPLOYMENT AND GAVE THE COMPLAINANT
ADVANCE NOTICE OF THESE MEETINGS. IN THE ABSENCE OF WHITE, BROCK, A
STEWARD IN SHOP 51, REPRESENTED THE COMPLAINANT. BEFORE THE MEETING,
MCDONALD TOLD BROCK THAT BECAUSE THE MEN WERE PROBATIONARY EMPLOYEES
THEY WERE NOT ENTITLED TO BE REPRESENTED AT THE MEETINGS, BUT THAT HE
COULD REPRESENT THE COMPLAINANT AS AN OBSERVER. MCDONALD MET WITH EACH
EMPLOYEE INDIVIDUALLY AND IN EACH CASE INFORMED THE EMPLOYEE THAT HE WAS
NOT ENTITLED TO REPRESENTATION BUT THAT THE COMPLAINANT WAS ENTITLED TO
AN OBSERVER. DURING THE COURSE OF THE MEETINGS BROCK TRIED TO SPEAK
SEVERAL TIMES, BUT MCDONALD STOPPED HIM EACH TIME AND TOLD HIM THAT HE
WAS ONLY AN OBSERVER AND COULD MAKE A STATEMENT FOR THE COMPLAINANT AT
THE END OF THE MEETING. EACH MEETING TOOK ABOUT FIVE MINUTES AND
RESULTED IN THE TERMINATION OF ALL FOUR EMPLOYEES BECAUSE THEY FAILED TO
MEET THE STANDARDS FOR SATISFACTORY PERFORMANCE. /4/ WHEN BROCK WAS
PERMITTED TO SPEAK, HE STATED THAT THE EMPLOYEES WERE ENTITLED TO BE
REPRESENTED BY THE COMPLAINANT, AND THAT TERMINATION WAS TOO HARSH FOR
THE OFFENSE WITH WHICH THE MEN WERE CHARGED.
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, I FIND THAT
RESPONDENT'S REFUSAL TO AFFORD THE PROBATIONARY EMPLOYEES INVOLVED
HEREIN UNION REPRESENTATION DURING THE MEETINGS IN QUESTION DID NOT,
STANDING ALONE, CONSTITUTE A VIOLATION OF SECTION 19(A)(2) OF THE ORDER.
THUS, WHILE THE RESPONDENT'S DISPARATE TREATMENT OF PROBATIONARY
EMPLOYEES AND CAREER EMPLOYEES MAY HAVE HAD THE EFFECT OF MAKING UNION
MEMBERSHIP LESS ATTRACTIVE TO PROBATIONARY EMPLOYEES, THERE WAS NO
EVIDENCE THAT SUCH CONDUCT WAS BASED ON, OR MOTIVATED, AT LEAST IN PART,
BY UNION MEMBERSHIP CONSIDERATIONS. ACCORDINGLY, I FIND THAT THE
RESPONDENT'S CONDUCT IN THIS MATTER WAS NOT VIOLATIVE OF SECTION
19(A)(2) OF THE ORDER.
HOWEVER, I DISAGREE WITH THE CONCLUSION OF THE ADMINISTRATIVE LAW
JUDGE THAT THE MARCH 8, 1974, MEETINGS CALLED BY MANAGEMENT FOR THE
PURPOSE OF NOTIFYING THE PROBATIONARY EMPLOYEES IN QUESTION OF THEIR
TERMINATION WERE NOT FORMAL DISCUSSIONS WITHIN THE MEANING OF SECTION
10(E) OF THE ORDER. /5/ IN THIS REGARD, I NOTE PARTICULARLY THAT THE
MEETINGS INVOLVED THE TERMINATION OF PROBATIONARY EMPLOYEES WHO, EXCEPT
IN A LIMITED NUMBER OF INSTANCES NOT RELEVANT HERE, HAVE NO STATUTORY
APPEAL RIGHTS AND, THEREFORE, NO RIGHT OF REPRESENTATION UPON APPEAL
FROM AN AGENCY ACTION. /6/ ADDITIONALLY, THE MEETINGS WHICH WERE HELD
HEREIN WERE CALLED SPECIFICALLY FOR THE PURPOSE OF TERMINATING THE
PROBATIONARY EMPLOYEES AND NOT FOR INVESTIGATORY PURPOSES. /7/ SUCH
MEETINGS NOT ONLY SUBSTANTIALLY AFFECTED PERSONNEL POLICIES AND
PRACTICES AS THEY RELATED TO THE SPECIFIC EMPLOYEES' JOB SECURITY, BUT
THEY ALSO SUBSTANTIALLY AFFECT PERSONNEL POLICIES AND PRACTICES AS THEY
PERTAIN TO OTHER EMPLOYEES IN THE BARGAINING UNIT. THUS, THE UNION
REPRESENTATIVE WHOSE REPRESENTATION THE PROBATIONARY EMPLOYEES WERE
SEEKING WOULD, IN EFFECT, BE SAFEGUARDING NOT ONLY INTERESTS OF THE
PARTICULAR EMPLOYEES INVOLVED, BUT ALSO THE INTERESTS OF OTHERS IN THE
BARGAINING UNIT BY EXERCISING VIGILANCE TO MAKE CERTAIN THAT THE AGENCY
DOES NOT INITIATE OR CONTINUE A PRACTICE OF IMPOSING PUNISHMENT
UNJUSTLY. THE REPRESENTATIVE'S PRESENCE IS AN ASSURANCE TO OTHER
PROBATIONARY EMPLOYEES IN THE BARGAINING UNIT THAT THEY TOO CAN OBTAIN
HIS AND AND PROTECTION IF CALLED UPON TO ATTEND A LIKE MEETING WHERE
SUCH DISCIPLINE IS IMPOSED.
FURTHER, IN MY VIEW, SUCH RIGHT OF UNION REPRESENTATION WILL
EFFECTUATE THE PURPOSES AND POLICIES OF THE ORDER BY ALLOWING THE
INDIVIDUAL EMPLOYEE WHO MAY BE TOO FEARFUL OR INARTICULATE TO RELATE
ACCURATELY WHAT OCCURRED, OR TOO IGNORANT OF THE LAW OF THE SHOP TO
RAISE EXTENUATING FACTORS, THE BENEFIT OF A KNOWLEDGEABLE UNION
REPRESENTATIVE. IN VIEW OF THE PROBATIONARY STATUS OF THE EMPLOYEES IN
THIS CASE AND THEIR LACK OF APPEAL RIGHTS, THIS, INDEED, MAY BE THEIR
ONLY OPPORTUNITY FOR KNOWLEDGEABLE UNION REPRESENTATION.
ACCORDINGLY, I FIND THAT THE MEETINGS OF MARCH 8, 1974, CALLED FOR
THE EXPLICIT PURPOSE OF TERMINATING PROBATIONARY EMPLOYEES, WERE FORMAL
DISCUSSIONS WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER.
CONSEQUENTLY, THE RESPONDENT'S REFUSAL TO ALLOW THE COMPLAINANT, THE
EXCLUSIVE REPRESENTATIVE OF THE UNIT EMPLOYEES INVOLVED, THE RIGHT TO
PARTICIPATE IN SUCH DISCUSSIONS WAS VIOLATIVE OF SECTION 19(A)(6) OF THE
ORDER. /8/ FURTHER, NOTING THE VESTED DERIVATIVE RIGHT OF
REPRESENTATION AT FORMAL MEETINGS UNDER SECTION 10(E) WHEN THE EMPLOYEE
DEEMS SUCH REPRESENTATION IMPERATIVE FOR THE PROTECTION OF HIS OWN
EMPLOYMENT INTERESTS, I FIND THAT THE RESPONDENT'S DENIAL OF THE
EMPLOYEES' REQUEST FOR UNION REPRESENTATION AT THE MARCH 8TH MEETINGS
WAS VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER. /9/
ORDER /10/
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
DEFENSE, U.S. NAVY, NORFOLK NAVAL SHIPYARD SHALL:
1. CEASE AND DESIST FROM:
(A) CONDUCTING FORMAL DISCUSSIONS CONCERNING GRIEVANCES, PERSONNEL
POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES IN THE UNIT WITHOUT GIVING THE TIDEWATER
VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, THE EMPLOYEES'
EXCLUSIVE REPRESENTATIVE, THE OPPORTUNITY TO BE REPRESENTED AT SUCH
DISCUSSIONS BY ITS OWN CHOSEN REPRESENTATIVE.
(B) INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY THE ORDER BY FAILING TO GRANT THEIR
REQUEST FOR REPRESENTATION BY THE TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADE COUNCIL, AFL-CIO, AT FORMAL DISCUSSIONS CONCERNING
GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING
GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE EXECUTIVE ORDER:
(A) NOTIFY THE TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES
COUNCIL, AFL-CIO, OF, AND GIVE IT THE OPPORTUNITY TO BE REPRESENTED AT,
FORMAL DISCUSSIONS CONCERNING GRIEVANCES, PERSONNEL POLICIES AND
PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT.
(B) POST AT ITS FACILITY AT THE U.S. NAVY, NORFOLK NAVAL SHIPYARD,
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, U.S. NAVY, NORFOLK NAVAL 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 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 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. 22-5283(CA),
INSOFAR AS IT ALLEGES VIOLATION OF SECTION 19(A)(2) AND (5) OF THE
ORDER, BE AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 23, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ INSTRUCTION 12300.1 DEALT WITH THE PROCEDURE FOR TERMINATING
TEMPORARY AND PROBATIONARY EMPLOYEES.
/2/ ARTICLE 31, DISCIPLINARY AND ADVERSE ACTIONS, READS, IN PERTINENT
PART: SECTION 2
"WHEN IT IS DETERMINED BY THE SUPERVISOR HAVING AUTHORITY THAT FORMAL
DISCIPLINARY OR
ADVERSE ACTION MAY BE NECESSARY, AN INVESTIGATOR WILL NORMALLY BE
APPOINTED WITHIN 5 WORKDAYS
TO CONDUCT A PRE-ACTION INVESTIGATION OF THE INCIDENT OR KNOWLEDGE OF
THE INCIDENT BY THE
SUPERVISOR . . . THE INVESTIGATOR ASSIGNED WILL CONDUCT WHATEVER
INQUIRY IS NECESSARY TO
DETERMINE AND DOCUMENT THE FACTS. IN ALL CASES . . . A DISCUSSION
WILL BE HELD WITH THE
EMPLOYEE AS PART OF THE PRE-ACTION INVESTIGATION. IT IS AGREED THAT
DURING ANY DISCUSSION
HELD WITH THE EMPLOYEE AS PART OF THE PRE-ACTION INVESTIGATION THE
EMPLOYEE SHALL BE ADVISED
OF HIS RIGHT TO BE REPRESENTED BY THE COGNIZANT STEWARD. IF THE
EMPLOYEE DECLINES
REPRESENTATION, THE COGNIZANT STEWARD OR APPROPRIATE CHIEF STEWARD IN
HIS ABSENCE SHALL BE
GIVEN THE OPPORTUNITY TO BE PRESENT TO REPRESENT THE COUNCIL . . .."
/3/ ON AUGUST 16, 1973, RESPONDENT ISSUED NAVSHIPDNOR/SURSHIPFIVE
INSTRUCTION 12300.1, WHICH PROVIDED FOR THE TERMINATION OF PROBATIONARY
EMPLOYEES BY THE BRACH OR SHOP HEAD FOR CONDUCT AFTER APPOINTMENT. THE
INSTRUCTION MADE NO MENTION OF ANY "PRE-ACTION INVESTIGATION" AS
DESCRIBED IN ARTICLE 31, SECTION 2 OF THE PARTIES' NEGOTIATED AGREEMENT.
/4/ SUPERINTENDENT MCDONALD'S TESTIMONY, IN PART, AS TO WHAT OCCURRED
AT EACH MEETING IS AS FOLLOWS:
Q. "WHAT DID YOU SAY?"
A. "WHEN THE EMPLOYEE CAME IN I INFORMED THEM WHY HE WAS THERE, FOR
THE PURPOSE OF REMOVAL ACTION, THAT HE WAS NOT ENTITLED TO UNION
REPRESENTATION, BUT THAT THE UNION REPRESENTATIVE WAS THERE AS AN
OBSERVER ONLY. AND AT THE END OF OUR CONVERSATION HE WOULD BE GIVEN AN
OPPORTUNITY TO MAKE ANY STATEMENT HE WISHED FOR COUNCIL." (TR. PP. 86.)
Q. "DID YOU ASK THE EMPLOYEES ANY QUESTIONS DURING THE COURSE OF
THEIR INTERVIEWS?"
A. "NO. I SIMPLY TOLD THEM THAT I HAD RECEIVED A WRITTEN REPORT
THAT THEY WERE SLEEPING ON THE JOB, AND THAT SINCE THEY WERE ON A
ONE-YEAR PROBATION, I FELT THAT THEIR EMPLOYMENT HAD NOT MET THE
REQUIREMENTS OF SATISFACTORY PERFORMANCE, OR SATISFACTORY CONDUCT, (AND)
AS A RESULT I WAS GOING TO REMOVE THEM." (TR. PP. 86, 87.)
/5/ SECTION 10(E) OF EXECUTIVE ORDER 11491, AS AMENDED, PROVIDES:
"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 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."
/6/ COMPARE THE FEDERAL LABOR RELATIONS COUNCIL'S STATEMENT ON MAJOR
POLICY ISSUE, FLRC NO. 75P-2, REPORT NO. 116, DATED DECEMBER 2, 1976, AT
PAGE 5, WHERE THE COUNCIL, NOTING THAT A DETAILED FRAMEWORK OF STATUTES
AND REGULATIONS ALREADY PROTECT AN EMPLOYEE IN THE FEDERAL PROGRAM
AGAINST ARBITRARY ACTION BY AN AGENCY WHEN SERIOUS MISCONDUCT IS
ALLEGED, HELD THAT AN EMPLOYEE DOES NOT HAVE A PROTECTED RIGHT UNDER THE
ORDER TO REPRESENTATION AT A NONFORMAL INVESTIGATIVE MEETING OR
INTERVIEW TO WHICH HE IS SUMMONED BY MANAGEMENT.
/7/ SEE FOOTNOTE 4 ABOVE.
/8/ IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, I VIEW THE RIGHT
OF AN EXCLUSIVE REPRESENTATIVE TO BE REPRESENTED AT SUCH DISCUSSIONS TO
MEAN THE RIGHT TO BE REPRESENTED AS A PARTICIPANT AND NOT MERELY AS, IN
THIS CASE, AN OBSERVER. BEING PERMITTED TO BE PRESENT ONLY AS AN
OBSERVER WOULD FRUSTRATE NOT ONLY THE LABOR ORGANIZATION'S INTEREST IN
THE DISCUSSIONS BUT COULD ALSO FRUSTRATE THE FULFILLING OF ITS
OBLIGATION IMPOSED BY THE SECOND SENTENCE OF SECTION 10(E), THE
OBLIGATION TO REPRESENT THE INTERESTS OF ALL EMPLOYEES IN THE UNIT.
/9/ SEE THE FEDERAL LABOR RELATIONS COUNCIL'S STATEMENT ON MAJOR
POLICY ISSUE, CITED ABOVE.
/10/ UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE, IN VIEW OF THE
NATURE OF THE VIOLATION HEREIN, I FIND THAT A REMEDIAL ORDER REQUIRING A
RETURN TO A STATUS QUO ANTE IS UNWARRANTED.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS AND IN ORDER TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
AMENDED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT CONDUCT FORMAL DISCUSSIONS CONCERNING GRIEVANCES,
PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL
WORKING CONDITIONS OF EMPLOYEES IN THE UNIT WITHOUT GIVING THE TIDEWATER
VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, THE EMPLOYEES'
EXCLUSIVE REPRESENTATIVE, THE OPPORTUNITY TO BE REPRESENTED AT SUCH
DISCUSSIONS BY ITS OWN CHOSEN REPRESENTATIVE.
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY THE ORDER BY FAILING TO GRANT THEIR
REQUEST FOR REPRESENTATION BY THE TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO, AT FORMAL DISCUSSIONS CONCERNING
GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING
GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT.
WE WILL NOTIFY THE TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES
COUNCIL, AFL-CIO, OF, AND GIVE IT THE OPPORTUNITY TO BE REPRESENTED AT,
FORMAL DISCUSSIONS CONCERNING GRIEVANCES, PERSONNEL POLICIES AND
PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT.
(AGENCY OR ACTIVITY)
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 REGIONAL
ADMINISTRATOR 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.
IN THE MATTER OF
DEPARTMENT OF DEFENSE
U.S. NAVY
NORFOLK NAVAL SHIPYARD
RESPONDENT
CASE NO. 22-5283(CA)
AND
TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO
COMPLAINANT
JAMES R. O'CONNEL
PATRICK C. O'DONOGHUE
ROBERT MATISOFF
O'DONOGHUE AND O'DONOGHUE
1912 SUNDERLAND PLACE, N.W.
WASHINGTON, D.C. 20036
FOR THE COMPLAINANT
STUART M. FOSS
LABOR DISPUTES AND APPEALS SECTION
OFFICE OF CIVILIAN MANPOWER MANAGEMENT
DEPARTMENT OF THE NAVY
WASHINGTON, D.C. 20390
FOR THE RESPONDENT
BEFORE: MILTON KRAMER
ADMINISTRATIVE LAW JUDGE
(TABLE OMITTED)
DECISION
STATEMENT OF THE CASE
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED. IT WAS
INITIATED BY A COMPLAINT DATED APRIL 15, 1974 AND FILED APRIL 17, 1974.
THE COMPLAINT ALLEGED THAT ON MARCH 8, 1974 THE HEAD OF SHOP 51 HELD A
DISCUSSION WITH FOUR SHOP 51 EMPLOYEES; THAT THE DISCUSSION
CONTEMPLATED DISCIPLINARY ACTION; AND THAT THE EMPLOYEES WERE DENIED
REPRESENTATION BY THE UNION. SUCH CONDUCT WAS ALLEGED TO BE IN
VIOLATION OF SECTIONS 19(A)(2) AND (5) OF THE EXECUTIVE ORDER. UNDER
DATE OF MAY 7, 1974 THE RESPONDENT FILED AN ANSWER TO THE COMPLAINT WITH
THE ASSISTANT AREA DIRECTOR.
PURSUANT TO A NOTICE OF HEARING BY THE ASSISTANT REGIONAL DIRECTOR
DATED JUNE 17, 1974 AND ORDER RESCHEDULING HEARING DATED JULY 17, 1974,
HEARINGS WERE COMMENCED AUGUST 22, 1974 IN NORFOLK, VIRGINIA. AT THE
BEGINNING OF THE HEARING, UPON MOTION MADE AND GRANTED, THE COMPLAINT
WAS AMENDED TO ALLEGE THAT THE CONDUCT ALLEGED IN THE COMPLAINT
CONSTITUTED ALSO VIOLATIONS OF SECTIONS 19(A)(1) AND (6). AT THE END OF
THAT DAY THE HEARING WAS RECESSED TO SEPTEMBER 3, 1974 FOR CLOSING
ARGUMENTS WHICH WERE HAD ON THAT DATE IN WASHINGTON, D.C. BOTH SIDES
WERE REPRESENTED BY COUNSEL AT THE HEARINGS BOTH IN NORFOLK AND
WASHINGTON. TIMELY BRIEFS WERE FILED BY THE PARTIES ON OCTOBER 4, 1974.
FACTS
WILLIAM S. BANKS, JR., ALLAN COX, CHARLIE HAROLD, AND GEORGE P.
KNECHT, JR. WERE PROBATIONARY EMPLOYEES OF THE RESPONDENT IN THEIR FIRST
YEAR OF CAREER CONDITIONAL APPOINTMENTS. BANKS WAS EMPLOYED ON NOVEMBER
12, 1973, COX ON JANUARY 14, 1974, HAROLD ON JANUARY 28, 1974, AND
KNECHT ON FEBRUARY 4, 1974. ALL FOUR WERE EMPLOYED IN SHOP 51, THE
ELECTRICAL SHOP. THEY WERE EMPLOYED IN THE UNIT REPRESENTED BY THE
COMPLAINANT.
ON MARCH 3, 1974 THEY BEGAN A 12-HOUR TOUR OF DUTY BEGINNING AT 7:30
P.M. AND ENDING AT 7:30 A.M. ON MARCH 4. ABOUT 8:00 P.M. ON MARCH 3
THEIR FOREMAN, JORDAN, TOLD THEM AND ABOUT FIVE OTHER EMPLOYEES TO GO
WITH HIM TO THE AIRCRAFT CARRIER "FORRESTAL" TO DO SOME WORK ON THAT
SHIP. THEY FINISHED THAT TASK ABOUT 10:30 P.M. JORDAN TOLD THEM TO
WAIT ON THE SHIP UNTIL THEY HEARD FROM HIM, AND JORDAN LEFT. AT 3:00
A.M. ON MARCH 4 THEY HAD NOT YET HEARD FROM JORDAN. ABOUT THAT TIME
HOSEA ELDRIDGE, ANOTHER FOREMAN IN SHOP 51 BUT NOT THE FOREMAN OF THESE
MEN, CAME BY AND LATER REPORTED IN WRITING TO SUPERINTENDENT ROBERT B.
MCDONALD, THE HEAD OF SHOP 51, THAT THESE MEN HAD BEEN ASLEEP AT THAT
TIME. THIS WAS ABOUT FIVE HOURS AFTER THE MEN HAD COMPLETED THEIR TASK
ON THE FORRESTAL AND WERE WAITING ON THE FORRESTAL FOR FURTHER WORD FROM
JORDAN PURSUANT TO JORDAN'S INSTRUCTION. MCDONALD TOLD WALTON, THE
ADMINISTRATIVE OFFICER OF SHOP 51, TO APPOINT A SUPERVISOR OTHER THAN
ELDRIDGE TO CONDUCT A "PRE-ACTION INVESTIGATION" OF ELDRIDGE'S CHARGES.
PURSUANT TO SUCH INSTRUCTION, WALTON DESIGNATED ROBERT GAY, ANOTHER
FOREMAN IN SHOP 51, TO CONDUCT THE "PRE-ACTION INVESTIGATION". SUCH AN
INVESTIGATION, IN ACCORDANCE WITH THE AGREEMENT BETWEEN THE COMPLAINANT
AND THE RESPONDENT, IS HELD WHEN DISCIPLINE IS CONTEMPLATED. /1/ THE
PURPOSE OF SUCH AN INVESTIGATION IS FOR THE INVESTIGATOR TO ASCERTAIN
THE FACTS OF THE INCIDENT AND REPORT THEM TO THE PERSON CONTEMPLATING
THE IMPOSITION OF DISCIPLINE.
GAY ARRANGED A MEETING WITH THE FOUR MEN FOR MARCH 5. PURSUANT TO
ADVICE FROM THE PERSONNEL OFFICE, BERNARD W. WHITE, THE COMPLAINANT'S
CHIEF STEWARD FOR SHOP 51, WAS PRESENT. WHITE HAD NO PREVIOUS KNOWLEDGE
OF THE INCIDENT. GAY ASKED EACH OF THE FOUR MEN WHETHER HE WANTED WHITE
TO REPRESENT HIM AND THEY ALL REPLIED IN THE AFFIRMATIVE. GAY THEN SAID
THAT THE FOUR MEN WERE CHARGED WITH SLEEPING ON THE JOB, AND THAT THE
PURPOSE OF THE MEETING WAS FOR GAY TO DEVELOP THE FACTS AND REPORT THEM
TO MCDONALD. WHITE ASKED FOR A COUPLE OF DAYS POSTPONEMENT OF THE
INVESTIGATION BECAUSE HE KNEW NOTHING OF THE MATTER AND WAS UNPREPARED
TO REPRESENT THE FOUR MEN. GAY ACQUIESCED. TWO DAYS LATER WHITE WAS
TOLD BY GAY THAT MCDONALD HAD TAKEN OVER THE MATTER. MCDONALD HAD DONE
SO BECAUSE ON MARCH 6 WALTON HAD ADVISED HIM THAT THE FOUR MEN WERE ALL
IN THEIR FIRST YEAR OF EMPLOYMENT, WERE THEREFORE PROBATIONARY
EMPLOYEES, AND THAT THE PRE-ACTION INVESTIGATION PROCEDURE WAS NOT
REQUIRED.
THE CURRENT "NEGOTIATED AGREEMENT" 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 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. /2/ 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. ON THE BASIS OF THE ADVICE HE RECEIVED FROM
WALTON AND INSTRUCTION 12300.1, MCDONALD RESCINDED HIS REQUEST FOR A
PRE-ACTION INVESTIGATION.
ON MARCH 8, 1974 MCDONALD HAD INDIVIDUAL MEETINGS WITH EACH OF THE
FOUR MEN. WHITE WAS ADVISED BY MCDONALD OF THE MEETINGS BUT COULD NOT
ATTEND AND SENT H. D. BROCK, A UNION STEWARD IN SHOP 51, TO ATTEND TO
BEHALF OF THE MTC. MCDONALD TOLD BROCK, AS HE HAD TOLD WHITE, THAT
BECAUSE THE MEN WERE PROBATIONARY EMPLOYEES THEY WERE NOT ENTITLED TO BE
REPRESENTED AT THE MEETINGS BUT THAT THE UNION COULD HAVE A
REPRESENTATIVE PRESENT AS AN OBSERVER. THIS WAS BEFORE THE INDIVIDUAL
MEETINGS BEGAN. THE FOUR MEN WERE THEN CALLED IN ONE AT A TIME.
MCDONALD TOLD EACH OF THEM THAT THEY WERE NOT ENTITLED TO REPRESENTATION
BUT THAT MTC COULD HAVE A REPRESENTATIVE PRESENT AS AN OBSERVER.
MCDONALD TOLD EACH OF THEM ALSO THAT THE PURPOSE OF THE MEETING WAS FOR
MCDONALD TO GET THEIR VERSION OF THE FACTS PERTAINING TO THE CHARGES
ELDRIDGE HAD MADE AGAINST THEM. MCDONALD TESTIFIED, AND I FIND, THAT:
"WHEN THE EMPLOYEE COME IN I INFORMED THEM WHY HE WAS THERE, FOR THE
PURPOSE OF REMOVAL
ACTION, THAT HE WAS NOT ENTITLED TO UNION REPRESENTATION, BUT THAT
THE UNION REPRESENTATIVE
WAS THERE AS AN OBSERVER ONLY. AND AT THE END OF OUR CONVERSATION HE
WOULD BE GIVEN AN
OPPORTUNITY TO MAKE ANY STATEMENT HE WISHED FOR THE COUNCIL." /3/
DURING THE DISCUSSIONS BROCK TRIED TO SPEAK SEVERAL TIMES BUT
MCDONALD STOPPED HIM EACH TIME AND TOLD HIM HE WAS THERE ONLY AS AN
OBSERVER FOR THE UNION AND WOULD BE PERMITTED TO MAKE A STATEMENT FOR
THE METAL TRADES COUNCIL AT THE END.
AT THE END OF EACH MEETING MCDONALD TOLD THE EMPLOYEE THAT HE HAD NOT
MET THE STANDARDS FOR SATISFACTORY PERFORMANCE AND THAT MCDONALD WAS
GOING TO REMOVE HIM FROM HIS JOB, THAT THE ACTUAL SEPARATION WOULD BE
SEVERAL DAYS LATER, AND IN THE MEANTIME THE EMPLOYEE WAS TO RETURN TO
HIS JOB. BROCK THEN WAS PERMITTED TO SPEAK AND SAID THAT HE BELIEVED
THE MAN WAS ENTITLED TO BE REPRESENTED BY THE UNION AND THAT TERMINATION
WAS TOO HARSH FOR THE OFFENSE WITH WHICH THE MAN WAS CHARGED. EACH
MEETING LASTED ABOUT FIVE MINUTES.
MCDONALD, AT ALL RELEVANT TIMES, WAS A MEMBER OF LOCAL 734 OF THE
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A CONSTITUENT OF THE
METAL TRADES COUNCIL AND THE REPRESENTATIVE OF THE UNIT WITHIN WHICH THE
FOUR MEN WERE EMPLOYED. THERE IS NO EVIDENCE OF ANY ANTI-UNION ANIMUS
BY MCDONALD OR ANYONE ELSE; INDEED, THERE IS NO EVIDENCE THAT ANY OF
THE FOUR DISCHARGEES WERE UNION MEMBERS OR ACTIVE IN UNION AFFAIRS.
A PERIOD OF SEVERAL DAYS WAS REQUIRED FOR MCDONALD'S DECISION TO HAVE
THE EMPLOYMENT OF THE FOUR MEN TERMINATED CARRIED OUT. THE EMPLOYMENT
OF ALL FOUR WAS TERMINATED EFFECTIVE MARCH 15, 1974 "DUE TO SLEEPING
DURING WORKING HOURS". /4/ EACH OF THE MEN WAS TOLD, AND IN ACCORDANCE
WITH CIVIL SERVICE COMMISSION REGULATIONS, THAT AS A PROBATIONARY
EMPLOYEE HE COULD APPEAL HIS TERMINATION TO THE CIVIL SERVICE COMMISSION
ONLY ON THE GROUNDS THAT HIS TERMINATION WAS BASED ON SUCH GROUNDS AS
RACE, RELIGION, SEX, AND THE LIKE.
ON APRIL 16, 1974, THE DAY BEFORE THE COMPLAINT IN THIS CASE WAS
FILED, THE UNION PRESENTED A GRIEVANCE ON BEHALF OF ONE MONTGOMERY WHO
WAS A CAREER-CONDITIONAL EMPLOYEE IN HIS PROBATIONARY FIRST YEAR OF
EMPLOYMENT, THE SAME STATUS AS THE FOUR MEN HERE INVOLVED. MONTGOMERY
HAD ALSO BEEN REMOVED BY MCDONALD AFTER A DISCUSSION AT WHICH HE WAS NOT
PERMITTED TO HAVE REPRESENTATION BUT AT WHICH A REPRESENTATIVE OF MTC
WAS PERMITTED TO BE PRESENT AS AN OBSERVER. REPRESENTATION WAS DENIED
TO MONTGOMERY, AND THE UNION'S REPRESENTATIVE WAS PERMITTED ONLY
OBSERVER STATUS, ON THE SAME GROUNDS THAT THE RESPONDENT TOOK SUCH
POSITION IN THIS CASE.
THE RESPONDENT DOES PERMIT UNION REPRESENTATION TO NON-PROBATIONARY
EMPLOYEES IN THE UNIT AT A PRE-ACTION INTERVIEW AT WHICH DISCIPLINE IS
CONTEMPLATED.
CONTENTIONS OF THE PARTIES
THE COMPLAINANT CONTENDS:
1. THE DENIAL OF REPRESENTATION TO THE FOUR MEN VIOLATED SECTIONS
19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED, BECAUSE SECTION
10(E) OF THE EXECUTIVE ORDER GIVES THE UNION THE RIGHT TO REPRESENT
EMPLOYEES IN THE UNIT AT MEETINGS THE PURPOSE OF WHICH MAY BE THE
TERMINATION OF EMPLOYMENT OF INDIVIDUAL EMPLOYEES.
2. THE RESPONDENT VIOLATED SECTION 19(A)(2) BY DISCOURAGING
PROBATIONARY EMPLOYEES FROM JOINING THE UNION BY DENYING REPRESENTATION
TO PROBATIONARY EMPLOYEES AT SUCH MEETINGS WHILE PERMITTING
REPRESENTATION TO OTHER EMPLOYEES IN SIMILAR CIRCUMSTANCES.
3. THE RESPONDENT VIOLATED SECTION 19(A)(6) BY UNILATERALLY
ESTABLISHING AND IMPLEMENTING A SYSTEM FOR DISCIPLINING PROBATIONARY
EMPLOYEES DIFFERENT FROM THE SYSTEM FOR DISCIPLINING OTHER EMPLOYEES.
4. THE FACT THAT THE RESPONDENT'S CONDUCT MAY ALSO BE IN VIOLATION
OF THE CONTRACTUAL DISCIPLINE PROCEDURE AND THAT THE UNION HAD COMMENCED
A GRIEVANCE ON BEHALF OF ANOTHER EMPLOYEE IN THE SAME CIRCUMSTANCES THE
DAY BEFORE FILING THE COMPLAINT IN THIS CASE DOES NOT BRING THIS CASE
WITHIN THE PROVISIONS OF THE SECOND SENTENCE OF SECTION 19(D) OF THE
EXECUTIVE ORDER PROHIBITING THE PURSUIT OF THE SAME ISSUE UNDER BOTH THE
GRIEVANCE PROCEDURE AND THE UNFAIR LABOR PRACTICE PROCEDURE OF THE
EXECUTIVE ORDER.
THE RESPONDENT CONTENDS:
1. THE FILING OF THE GRIEVANCE ON BEHALF OF THE FIFTH EMPLOYEE THE
DAY BEFORE FILING THE COMPLAINT IN THIS CASE PRECLUDES THE COMPLAINANT
FROM PURSUING THE UNFAIR LABOR PRACTICE REMEDY ON BEHALF OF THE FOUR
EMPLOYEES HERE INVOLVED.
2. THE POLICY EXPRESSED BY THE ASSISTANT SECRETARY IN REPORT NO.
49, THAT WHERE AN UNFAIR LABOR PRACTICE COMPLAINT IS PREDICATED ON A
DISAGREEMENT OVER THE PROPER INTERPRETATION OF A COLLECTIVE AGREEMENT
WHICH PROVIDES A PROCEDURE FOR RESOLVING THE DISAGREEMENT, THE PARTIES
WILL BE LEFT TO THE CONTRACT REMEDY, CALLS FOR THE DISMISSAL OF THE
COMPLAINT.
3. THE COMPLAINANT HAD NO RIGHT UNDER THE EXECUTIVE ORDER TO
REPRESENT THE FOUR EMPLOYEES, AND THE EMPLOYEES HAD NO RIGHT TO
REPRESENTATION UNDER THE EXECUTIVE ORDER, AT THE PRE-DISCIPLINE
MEETINGS.
4. DENYING REPRESENTATION TO PROBATIONARY EMPLOYEES AT
PRE-DISCIPLINE DISCUSSIONS WHILE PERMITTING REPRESENTATION TO OTHER
EMPLOYEES WAS NOT UNLAWFUL DISCRIMINATION IN VIOLATION OF SECTION
19(A)(2).
5. THE TERMINATION OF THE PROBATIONARY APPOINTMENTS OF THE FOUR
EMPLOYEES WAS NOT THE IMPOSITION OF DISCIPLINE BUT WAS PART OF THE
PROCESS OF CONTINUING EVALUATION OF PROBATIONARY EMPLOYEES.
DISCUSSION AND CONCLUSIONS
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."
THE DAY BEFORE THE COMPLAINT IN THIS CASE WAS FILED, THE COMPLAINANT
FILED A GRIEVANCE UNDER THE CONTRACT GRIEVANCE PROCEDURE. THE GRIEVANCE
AROSE BECAUSE AN EMPLOYEE, MONTGOMERY, A PROBATIONARY EMPLOYEE IN SHOP
51, WAS CALLED IN TO SEE MCDONALD WHO WAS CONTEMPLATING SEPARATING
MONTGOMERY FROM HIS EMPLOYMENT. MONTGOMERY ASKED FOR A UNION
REPRESENTATIVE, AND MCDONALD TOLD BROCK, WHO APPARENTLY WAS PRESENT,
THAT AS A PROBATIONARY EMPLOYEE MONTGOMERY WOULD NOT BE PERMITTED TO
HAVE UNION REPRESENTATION AT THE DISCUSSION. /5/ 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 THE
TERMINATION OF THE FOUR EMPLOYEES HERE INVOLVED.
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 ISSUES ARE RAISED IN THIS PROCEEDING UNDER THE
UNFAIR LABOR PRACTICE PROCEDURE OF THE EXECUTIVE ORDER BY A COMPLAINT
FILED A DAY LATER THAN THE FILING OF THE GRIEVANCE IN THE MONTGOMERY
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 THE FOUR
EMPLOYEES. 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. THE RESPONDENT CANDIDLY CONCEDES
THAT ITS POSITION IS PREDICATED ON SECTION 19(D) BEING "ISSUE ORIENTED"
AND NOT "INCIDENT ORIENTED". /6/
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 IS BOUND, UNTO ETERNITY OR A CHANGE IN THE CONTRACT OR A
CHANGE IN THE REMEDIAL LEGISLATION, WHICHEVER FIRST OCCURS, TO PURSUE
THE SAME REMEDY AGAINST THE SAME WRONGDOER IF THE SAME WRONG SHOULD
AGAIN BE COMMITTED. 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 APPOINTMENTS OF THE FOUR EMPLOYEES. THE RECORD DOES
NOT SHOW WHY MONTGOMERY WAS TERMINATED.
I CONCLUDE THAT THE SECOND SENTENCE OF SECTION 19(D) REFERS NOT TO
ISSUES IN THE ABSTRACT BUT 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 THE
CASES OF THE FOUR EMPLOYEES 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 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) OR 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. FOR THIS REASON, AND BASED ON THE CONCLUSION REACHED UNDER
THE PRECEDING CAPTION, THE RESPONDENT'S MOTION TO DISMISS IS DENIED.
III. THE TERMINATION OF THE EMPLOYMENT OF THE FOUR EMPLOYEES WAS THE
IMPOSITION OF DISCIPLINE
AS AN ORIGINAL PROPOSITION, IT WOULD APPEAR BEYOND CAVIL THAT
TERMINATING A PROBATIONARY EMPLOYEE'S EMPLOYMENT, DURING THE
PROBATIONARY PERIOD, "DUE TO SLEEPING DURING WORKING HOURS", THE REASON
GIVEN FOR "TERMINATION DURING PROBATION" IN THE "NOTIFICATION OF
PERSONNEL ACTION", /7/ WAS THE IMPOSITION OF DISCIPLINE FOR SLEEPING
DURING WORKING HOURS. CERTAINLY THIS IS SO IN ANY ORDINARY USAGE OF
WORDS. BUT THE RESPONDENT ARGUES, AND EVEN INTRODUCED EVIDENCE, THAT
THE TERMINATIONS HERE INVOLVED WERE NOT DISCIPLINARY IN NATURE. THE
ARGUMENT, WHICH HAS SOME SUPPORT IN CIVIL SERVICE COMMISSION
REGULATIONS, /8/ IS THAT A PROBATIONARY EMPLOYEE IS, DURING THE PERIOD
OF PROBATION, UNDER A PROCESS OF CONTINUING EXAMINATION AND EVALUATION,
AND THAT TERMINATION DURING THAT PERIOD IS PART OF THE EXAMINING AND
EVALUATION PROCESS AND NOT THE IMPOSITION OF DISCIPLINE AND NOT
REVIEWABLE. /9/ IT WOULD FOLLOW, IN ACCORDANCE WITH THE RESPONDENT'S
ARGUMENTS, THAT WHATEVER RIGHTS AN EMPLOYEE MAY HAVE TO A UNION
REPRESENTATIVE TO APPEAR ON HIS BEHALF WITH RESPECT TO DISCIPLINE, HE
DOES NOT HAVE THE RIGHT TO HAVE A REPRESENTATIVE APPEAR ON HIS BEHALF ON
HIS EXAMINATION.
WHATEVER LEGALESE OR PERSONNELESE THE COMMISSION OR PERSONNEL
OFFICERS MAY EMPLOY CANNOT CHANGE THE FACT THAT TERMINATING A
PROBATIONARY EMPLOYEE'S EMPLOYMENT PRIOR TO THE END OF THE PROBATIONARY
PERIOD "DUE TO SLEEPING DURING WORKING HOURS" IS IMPOSING DISCIPLINE FOR
SLEEPING DURING WORKING HOURS. INVOLUNTARY TERMINATION OF EMPLOYMENT
FOR MISCONDUCT IS NOT ONLY DISCIPLINE, IT IS THE ULTIMATE DISCIPLINE.
IV. 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 CONCLUSIONS 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 THE IMPOSITION OF DISCIPLINE OR AT A PREDISCIPLINE 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 THE IMPOSITION OF DISCIPLINE AND AT DISCIPLINE INVESTIGATIONS,
EXCEPT EMPLOYEES NAMED SMITH, SUCH DISPARATE PROCEDURE WOULD MAKE UNION
MEMBERSHIP LESS VALUABLE TO EMPLOYEES NAMED SMITH 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 PROVISIONS OF THE EXECUTIVE ORDER. I FIND
THE DISCRIMINATION INVOLVED HERE, AGAINST EMPLOYEES WHOSE STATUS IS THAT
OF PROBATIONARY EMPLOYEE, TO BE OF THAT NATURE.
FURTHERMORE, THE COMPLAINT ALLEGES NO FACTS PERTAINING TO
DISCRIMINATION IN A CONDITION OF EMPLOYMENT BASED ON EMPLOYEE STATUS.
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.
V. THE UNILATERAL ESTABLISHMENT AND IMPLEMENTATION OF A SEPARATE
SYSTEM FOR DISCIPLINING PROBATIONARY EMPLOYEES
ON AUGUST 16, 1973, THE RESPONDENT ISSUED INSTRUCTION 12300.1 /10/
CONCERNING THE TERMINATION OF TEMPORARY EMPLOYEES OR EMPLOYEES IN A
PROBATIONARY PERIOD. IT PROVIDES FOR TERMINATION OF A PROBATIONARY
EMPLOYEE BY THE BRANCH OR SHOP HEAD, FOR CONDUCT AFTER APPOINTMENT,
AFTER DISCUSSION WITH THE EMPLOYEE. IT DOES NOT MENTION ANY PRE-ACTION
INVESTIGATION OR ANY REPRESENTATION OF THE EMPLOYEE AT THE DISCUSSION OR
OTHERWISE. THE INSTRUCTION WAS ISSUED WITHOUT NEGOTIATION OR
CONSULTATION WITH THE COMPLAINANT. THE COMPLAINANT ARGUES THAT SUCH
PROMULGATION WAS OF A "PERSONNEL POLICY OR PRACTICE" THAT WAS NEGOTIABLE
AND THAT ITS UNILATERAL PROMULGATION WITHOUT NEGOTIATION OR CONSULTATION
WAS A VIOLATION OF SECTION 19(A)(6) OF THE EXECUTIVE ORDER.
THE COMPLAINT IN THIS CASE STATES THAT THE "BASIS OF THE COMPLAINT"
IS AS FOLLOWS:
"ON MARCH 8, 1974 MR. MCDONALD SHOP 51 HEAD HELD A DISCUSSION WITH
FOUR (4) SHOP 51
EMPLOYEES. DISCIPLINARY ACTION WAS CONTEMPLATED.
"MR. MCDONALD DENIED THESE PEOPLE REPRESENTATION."
THERE IS NOT A WORD IN THE COMPLAINT TO INDICATE THAT THE RESPONDENT
IMPROPERLY ISSUED THE INSTRUCTION OR FAILED OR REFUSED TO NEGOTIATE OR
CONSULT ABOUT ANYTHING. INDEED, THE COMPLAINT AS FILED DOES NOT EVEN
ALLEGE THAT SECTION 19(A)(6) WAS INVOLVED. AT THE BEGINNING OF THE
HEARING THE COMPLAINT WAS AMENDED TO ALLEGE A VIOLATION OF SECTION
19(A)(6) WITHOUT AMENDMENT OF THE FACTUAL ALLEGATIONS. /11/ INDEED, THE
COMPLAINANT DOES NOT EVEN CONTEND IN ITS BRIEF ON THIS POINT THAT THE
ALLEGED VIOLATION VITIATED THE TERMINATION OF THE FOUR EMPLOYEES; THE
ONLY RELIEF IT SEEKS FOR THIS ALLEGED VIOLATION IS THAT THE SECRETARY
FIND THAT THE ACTIVITY UNLAWFULLY REFUSED TO NEGOTIATE IN UNILATERALLY
PROMULGATING THE INSTRUCTION. /12/
SINCE THE COMPLAINT DOES NOT ALLEGE ANY FACTS PERTAINING TO THE
INSTRUCTION OR ITS PROMULGATION, THE ISSUE IS NOT PROPERLY BEFORE ME AND
IS NOT CONSIDERED.
VI. THE DENIAL OF REPRESENTATION TO THE FOUR EMPLOYEES AND THE
REFUSAL TO PERMIT THE COMPLAINANT TO REPRESENT THEM
MCDONALD DENIED TO THE COMPLAINANT THE RIGHT TO BE REPRESENTED OTHER
THAN AS AN OBSERVER AT HIS DISCUSSION WITH EACH OF THE FOUR EMPLOYEES
AND DENIED TO EACH OF THE FOUR EMPLOYEES THE RIGHT TO BE REPRESENTED BY
THE COMPLAINANT AT HIS DISCUSSION WITH MCDONALD CONCERNING HIS ALLEGED
SLEEPING DURING A TOUR OF DUTY AT THE END OF WHICH DISCUSSION MCDONALD
TOLD HIM HIS EMPLOYMENT WOULD BE TERMINATED. THE COMPLAINANT WAS
PERMITTED TO HAVE A REPRESENTATIVE PRESENT AS AN OBSERVER AND NOT AS A
PARTICIPANT; WHEN THE REPRESENTATIVE, BROCK, TRIED TO SPEAK DURING THE
DISCUSSIONS MCDONALD STOPPED HIM AND TOLD HIM HE COULD ONLY OBSERVE AND
WOULD BE PERMITTED TO MAKE A STATEMENT AT THE END OF THE DISCUSSIONS.
THE LAST SENTENCE OF SECTION 10(E) OF THE ORDER 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 QUESTIONS HERE, THEN, ARE WHETHER THE FOUR DISCUSSIONS BETWEEN
MCDONALD AND THE FOUR EMPLOYEES WERE FORMAL DISCUSSIONS AND IF THEY WERE
WHETHER THEY CONCERNED "GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR
OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE
UNIT".
I CONCLUDE THAT THE DISCUSSIONS WERE "FORMAL" IN NATURE WITHIN THE
MEANING OF SECTION 10(E). EACH DISCUSSION WAS WITH THE HEAD OF SHOP 51,
SEVERAL SUPERVISORY LEVELS ABOVE THE EMPLOYEE. IT WAS HELD PURSUANT TO
A FORMAL INSTRUCTION PROMULGATED BY THE COMMANDER OF THE ACTIVITY, THE
NORFOLK NAVAL SHIPYARD. THE SUBJECT WAS A CHARGE OF SERIOUS MISCONDUCT
BY THE EMPLOYEE, AND, IN ACCORDANCE WITH THE INSTRUCTION, THE EMPLOYEE
WAS TO BE TOLD AT THE DISCUSSION WHETHER HE WAS TO BE RETAINED. /13/ 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.
THE DISCUSSIONS HERE MEET THE TEST OF FORMAL DISCUSSIONS WITHIN THE
MEANING OF SECTION 10(E) OF THE EXECUTIVE ORDER. THERE REMAINS THE
QUESTION OF WHETHER THEY CONCERNED "GRIEVANCES, PERSONNEL POLICIES AND
PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT."
WERE THIS A CASE OF FIRST IMPRESSION, I WOULD CONCLUDE THAT THE
EMPLOYEES WERE ENTITLED TO BE REPRESENTED AT THE DISCUSSIONS BY THE
COMPLAINANT AND THAT THE COMPLAINANT WAS ENTITLED TO BE REPRESENTED AS A
PARTICIPANT. BEFORE THE DECISION IN FEDERAL AVIATION ADMINISTRATION,
NATIONAL AVIATION FACILITIES EXPERIMENTAL CENTER, ATLANTIC CITY, NEW
JERSEY, A/SLMR NO. 438, THERE WERE NUMEROUS DECISIONS ON BOTH SIDES OF
THE LINE SEPARATING DISCUSSIONS BETWEEN AN EMPLOYEE AND HIGHER LEVEL AT
WHICH THE LABOR ORGANIZATION WAS OR WAS NOT ENTITLED TO BE REPRESENTED
AND AT WHICH THE EMPLOYEE WAS ENTITLED TO BE REPRESENTED AND DISCUSSION
AT WHICH HE WAS NOT ENTITLED TO BE REPRESENTED BY THE LABOR
ORGANIZATION. /14/ BUT IN VIEW OF THE DECISION IN THAT CASE, I AM
CONSTRAINED TO CONCLUDE THAT THE DISCUSSIONS HERE INVOLVED, ALTHOUGH
FORMAL IN NATURE, DO NOT FALL WITHIN THE PROVISIONS OF SECTION 10(E) OF
THE EXECUTIVE ORDER.
IN THE NATIONAL AVIATION FACILITIES EXPERIMENTAL CENTER CASE AN
EMPLOYEE WAS CALLED BY THE CHIEF OF THE DIVISION, SEVERAL SUPERVISORY
STEPS ABOVE THE EMPLOYEE, TO A MEETING WITH HIM. WHEN SHE ARRIVED HE
TOLD HER HE WANTED TO DISCUSS THE BASIS ON WHICH HE BELIEVED HE SHOULD
ISSUE A FORMAL LETTER OF REPRIMAND TO HER. THE EMPLOYEE STATED SHE DID
NOT WANT TO DISCUSS THE MATTER WITHOUT HER REPRESENTATIVE. THE CHIEF
DENIED HER REQUEST. AN OFFICIAL REPRIMAND WAS ISSUED THE NEXT DAY. THE
ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE DISCUSSION WAS A FORMAL
DISCUSSION AND GOVERNED BY SECTION 10(E) AND THAT THE FAILURE TO AFFORD
THE UNION AN OPPORTUNITY TO BE REPRESENTED AT THE DISCUSSION VIOLATED
SECTIONS 19(A)(1) AND 19(A)(6) OF THE EXECUTIVE ORDER. THE ASSISTANT
SECRETARY DISAGREED. HE DID NOT, AT LEAST NOT EXPRESSLY, DISAGREE THAT
THE DISCUSSION WAS A FORMAL DISCUSSION; AS IN THIS CASE THE DISCUSSION
WAS REQUIRED BY REGULATION. NOTING THE ABSENCE OF A PENDING GRIEVANCE,
HE HELD THAT THE MEETING PERTAINED MERELY TO THE APPLICATION OF CERTAIN
REGULATIONS TO AN INDIVIDUAL EMPLOYEE AND HAD NO WIDER RAMIFICATIONS AND
HENCE DID NOT INVOLVE MATTERS ENCOMPASSED WITHIN SECTION 10(E).
THE ONLY DIFFERENCE OF SIGNIFICANCE BETWEEN THAT CASE AND THIS CASE
IS THE DEGREE OF DISCIPLINE IMPOSED. IN BOTH CASES THE DISCIPLINE
IMPOSED WAS FORMAL DISCIPLINE. I CAN FIND NO INDICATION ANYWHERE, NOR
CAN I CONCLUDE A PRIORI, THAT THE DEGREE OF FORMAL DISCIPLINE IMPOSED IS
DETERMINATIVE OF WHETHER THE REPRESENTATIVE HAD A RIGHT TO BE PRESENT OR
THE EMPLOYEE HAD A RIGHT TO HAVE THE REPRESENTATIVE REPRESENT HIM AT THE
CRITICAL MEETING.
IT COULD BE ARGUED THAT THE NATIONAL AVIATION FACILITIES EXPERIMENTAL
CENTER CASE IS DISTINGUISHABLE FROM THIS CASE ON THE GROUND THAT IN THAT
CASE THE EMPLOYEE, AFTER THE IMPOSITION OF DISCIPLINE, COULD PRESENT ITS
IMPOSITION AS A GRIEVANCE AND THAT IN THE GRIEVANCE PROCEDURE THE UNION
UNQUESTIONABLY WOULD HAVE THE RIGHT TO BE REPRESENTED AND SHE WOULD HAVE
THE RIGHT TO HAVE THE UNION REPRESENT HER. IN THIS CASE THE EMPLOYEE,
AS A PROBATIONARY EMPLOYEE, COULD NOT HAVE A SECOND BITE. BUT TO
PREDICATE A DIFFERENCE IN RESULT ON SUCH DISTINCTION WOULD IN EFFECT
HOLD THAT PROBATIONARY EMPLOYEES HAVE GREATER RIGHTS TO REPRESENTATION
AT FORMAL MEETINGS AT WHICH DISCIPLINE IS TO BE IMPOSED THAN PERMANENT
EMPLOYEES. SUCH A RESULT IS NOWHERE INDICATED IN THE ORDER, NOR DO I
FIND IT OTHERWISE SUSTAINABLE.
NOR MAY THIS CASE BE DISTINGUISHED ON THE GROUND THAT HERE THERE WERE
FOUR DISCUSSIONS WITH FOUR EMPLOYEES WITH ALL HAVING THE SAME RESULT,
AND THAT TAKEN TOGETHER THEY ESTABLISHED A PERSONNEL POLICY OR PRACTICE
THAT PROBATIONARY EMPLOYEES WHO SLEPT DURING DUTY HOURS WOULD HAVE THEIR
EMPLOYMENT TERMINATED. THAT WAS THE RESULT IN EACH INSTANCE, BUT IT WAS
NOT ESTABLISHED AS A PERSONNEL POLICY OR PRACTICE IN THE UNIT. MCDONALD
WAS NOT A PERSONNEL OFFICER NOR WAS HE SHOWN TO HAVE HAD AUTHORITY TO
ESTABLISH PERSONNEL POLICIES OR PRACTICES. HE WAS THE HEAD OF SHOP 51,
ONLY ONE OF NUMEROUS COMPONENTS OF THE RESPONDENT ACTIVITY. HE DID NOT
ESTABLISH A POLICY OR PRACTICE EVEN FOR SHOP 51. HE SIMPLY REACHED A
CONCLUSION AND ACTED IN EACH CASE. IN ANY FUTURE CASE, EVEN IN SHOP 51,
MCDONALD OR ANY ONE ELSE WOULD NOT BE BOUND TO REACH THE SAME RESULT
BECAUSE OF WHAT WAS DONE IN THIS CASE.
A ROUNDED SYSTEM OF LABOR RELATIONS WOULD ENTITLE THE EMPLOYEE, IN A
SITUATION SUCH AS WAS INVOLVED HERE, TO HAVE HIS UNION REPRESENT HIM AT
HIS MEETING WITH MANAGEMENT. FOR THAT REASON PERHAPS THE EXECUTIVE
ORDER SHOULD, SINCE IT CAN, BE INTERPRETED TO CONFER SUCH RIGHT. BUT I
DO NOT WRITE ON A CLEAN SLATE. SUCH A SUGGESTION WAS MADE BY THE
ADMINISTRATIVE LAW JUDGE IN THE TEXAS AIR NATIONAL GUARD CASE /15/ AND
REJECTED BY THE ASSISTANT SECRETARY. I CONCLUDE FROM THE DECISIONS OF
THE ASSISTANT SECRETARY THAT IT IS HIS POSITION THAT THE MEETINGS
BETWEEN AN EMPLOYEE AND MANAGEMENT AT WHICH THE LABOR ORGANIZATION IS
ENTITLED BY VIRTUE OF THE EXECUTIVE ORDER TO BE REPRESENTED ARE ONLY
THOSE SPELLED OUT, HOWEVER LOOSELY, IN THE EXECUTIVE ORDER. I AM BOUND
BY THOSE DECISIONS, AND CANNOT FIND THE MEETINGS HERE INVOLVED TO FALL
WITHIN THE EXECUTIVE ORDER.
THIS CONCLUSION IS NOT AFFECTED BY THE RECENT DECISIONS OF THE
SUPREME COURT ON FEBRUARY 19, 1975 IN NATIONAL LABOR RELATIONS BOARD V.
J. WEINGARTEN, INC., 43 LAW WEEK 4275, AND INTERNATIONAL LADIES' GARMENT
WORKERS' UNION V. QUALITY MANUFACTURING COMPANY, 43 LAW WEEK 4282. IN
THOSE CASES THE SUPREME COURT UPHELD DECISIONS OF THE NATIONAL LABOR
RELATIONS BOARD WHICH HAD BEEN SET ASIDE BY THE COURTS OF APPEALS FOR
THE FOURTH AND FIFTH CIRCUITS. SO FAR AS RELEVANT HERE, THE FACTS IN
THOSE TWO CASES WERE IDENTICAL. AN EMPLOYEE WAS CALLED IN BY MANAGEMENT
FOR AN INTERVIEW WHICH THE EMPLOYEE REASONABLY FEARED MIGHT RESULT IN
THE IMPOSITION OF DISCIPLINE. THE EMPLOYEE REQUESTED UNION
REPRESENTATION. THE REQUEST WAS DENIED, AND RESULTS UNFORTUNATE FOR THE
EMPLOYEE EVENTUATED AS A PROXIMATE CONSEQUENCE. THE N.L.R.B., DEPARTING
FROM ITS EARLIER PRECEDENTS, HELD THAT THE EMPLOYER VIOLATED SECTION
8(A)(1) OF THE NATIONAL LABOR RELATIONS ACT WHICH DECLARES IT AN UNFAIR
LABOR PRACTICE FOR AN EMPLOYER TO INTERFERE WITH, RESTRAIN, OR COERCE
EMPLOYEES IN THE EXERCISE OF RIGHTS GUARANTEED BY SECTION 7 OF THE ACT.
THE RIGHT GUARANTEED BY SECTION 7 THAT THE N.L.R.B. FOUND HAD BEEN
INTERFERED WITH WAS "THE RIGHT . . . TO ENGAGE IN CONCERTED ACTIVITIES
FOR THE PURPOSE OF . . . MUTUAL AID OR PROTECTION." THE SUPREME COURT
HELD THAT SUCH CONSTRUCTION OF THAT PROVISION OF SECTION 7 WAS A
PERMISSIBLE CONSTRUCTION AND THAT THE COURTS OF APPEAL "IMPERMISSIBLY
ENCROACHED UPON THE BOARD'S FUNCTION," THE "'SPECIAL FUNCTION OF
APPLYING THE GENERAL PROVISIONS OF THE ACT TO THE COMPLEXITIES OF
INDUSTRIAL LIFE'" "IN LIGHT OF CHANGING INDUSTRIAL PRACTICES AND THE
BOARD'S CUMULATIVE EXPERIENCE." 43 LAW WEEK AT 4279.
THOSE DECISIONS ARE NOT PERSUASIVE OF THE RESULT I SHOULD REACH IN
THIS CASE. THERE IS NO PROVISION IN THE EXECUTIVE ORDER LIKE THE
ABOVE-QUOTED EXCERPT FROM SECTION 7 OF THE NATIONAL LABOR RELATIONS ACT.
BUT MORE FUNDAMENTALLY, THE SUPREME COURT HELD IN THOSE DECISIONS THAT
THE BOARD'S "NEWLY ARRIVED AT CONSTRUCTION OF SECTION 7" WAS A
PERMISSIBLE CONSTRUCTION, AS HAD BEEN ITS EARLIER CONTRARY CONSTRUCTION
OVER A PERIOD OF SOME THIRTY YEARS, ARRIVED AT IN THE LIGHT OF ITS
GREATER ACCUMULATION OF EXPERTISE IN CHANGING INDUSTRIAL PRACTICES. I
READ THE DECISIONS OF THE ASSISTANT SECRETARY IN THE CASES CITED ABOVE
IN FOOTNOTE 14 AND IN THE NATIONAL AVIATION FACILITIES EXPERIMENTAL
CENTER CASE AS EXPOUNDING THE APPLICATION OF HIS EXPERTISE IN THIS FIELD
IN THE MANNER DESCRIBED ABOVE IN DISCUSSING THOSE CASES. PERHAPS, IN
THE APPLICATION OF HIS NOW GREATER EXPERTISE, HE WILL REACH A NEW
CONSTRUCTION OF THE EXECUTIVE ORDER. BUT UNTIL THEN I AM BOUND BY HIS
PAST DECISIONS.
ACCORDINGLY, I MUST CONCLUDE THAT THE COMPLAINT SHOULD BE DISMISSED.
RECOMMENDATION
THE COMPLAINT SHOULD BE DISMISSED.
MILTON KRAMER
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 4, 1975
WASHINGTON, D.C.
/1/ EXH. C-1, P. 71.
/2/ SEE, E.G., SECTION 3 AND SECTION 6 OF ARTICLE 31, EXH. C-1.
/3/ TR. 86.
/4/ EXH. C-4.
/5/ EXH. R-1, ATTACHMENT NO. 2. THE GRIEVANCE FORM SHOWED THAT H.
D. BLOCK, AN ELECTRICIAN, WAS THE GRIEVANT AND WAS SIGNED BY HIM AS THE
"EMPLOYEE". IT WAS SIGNED BY HIM ALSO AS THE "CHIEF STEWARD". WHATEVER
NOMENCLATURE MAY HAVE BEEN USED, I HAVE FOUND ABOVE IN THE TEXT THAT THE
GRIEVANCE WAS PRESENTED BY THE COMPLAINANT. THE PARTICULAR APPELLATIONS
USED BY THOSE INTERESTED SHOULD NOT BE GOVERNING.
/6/ BRIEF, P. 30.
/7/ EXH. C-4.
/8/ EXH. R-4, SUBCH. 8, PP. 315-27 FF.
/9/ EXCEPT ON SPECIAL GROUNDS NOT RELEVANT HERE, SUCH AS ALLEGED
TERMINATION BECAUSE OF SEX, RELIGION, RACE AND THE LIKE.
/10/ EXH. R-3.
/11/ TR. 10.
/12/ COMPLAINANT'S BRIEF, PAGE 29.
/13/ EXH. R-3, SEC. 3(B).
/14/ PROBABLY THE MOST SIGNIFICANT FOR PRESENT PURPOSES WERE U.S.
ARMY HEADQUARTERS, U.S. ARMY TRAINING CENTER, INFANTRY, FORT JACKSON
LAUNDRY FACILITY, A/SLMR NO. 242; DEPARTMENT OF THE ARMY,
TRANSPORTATION MOTOR POOL, FORT WAINWRIGHT, ALASKA, A/SLMR NO. 279;
DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU, TEXAS AIR NATIONAL GUARD,
A/SLMR NO. 336; DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL
SECURITY ADMINISTRATION, GREAT LAKES PROGRAM CENTER, A/SLMR NO. 419;
INTERNAL REVENUE SERVICE, MID-ATLANTIC SERVICE CENTER, A/SLMR NO. 421.
/15/ SEE THE ALJ DECISION, P. 12, FN. 23, A/SLMR NO. 336.
7 A/SLMR 907; P. 828; CASE NO. 40-7631(RO); SEPTEMBER 22, 1977.
SEPTEMBER 22, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
U.S. NAVAL STATION,
U.S. NAVAL BASE,
DEPARTMENT OF THE NAVY,
CHARLESTON, SOUTH CAROLINA
A/SLMR NO. 907
THIS CASE INVOLVED A REPRESENTATION PETITION FILED BY THE FEDERAL
EMPLOYEES METAL TRADES COUNCIL OF CHARLESTON, METAL TRADES DEPARTMENT,
AFL-CIO (MTC) FOR A UNIT OF ALL EMPLOYEES OF THE TELEPHONE SERVICES
DIVISION, COMMUNICATIONS DEPARTMENT, U.S. NAVAL STATION, U.S. NAVAL
BASE, CHARLESTON, SOUTH CAROLINA. THE ACTIVITY CONTENDED, AMONG OTHER
THINGS, THAT THE UNIT IS NOT APPROPRIATE AS IT DOES NOT INCLUDE
EMPLOYEES WHO SHARE A COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM
THE REMAINING UNREPRESENTED GENERAL SCHEDULE (GS) EMPLOYEES AT THE
ACTIVITY, AND THAT SUCH FRAGMENTATION WOULD NOT PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. THE MTC, ON THE OTHER
HAND, MAINTAINED, AMONG OTHER THINGS, THAT THE UNIT SOUGHT IS
APPROPRIATE AS THE CLAIMED EMPLOYEES HAVE A COMMUNITY OF INTEREST
SEPARATE AND DISTINCT FROM THE OTHER EMPLOYEES AT THE ACTIVITY.
THE RECORD REVEALED THAT THE EMPLOYEES IN THE PETITIONED FOR UNIT ARE
SERVICED BY THE SAME CONSOLIDATED CIVILIAN PERSONNEL OFFICE AS THE
REMAINING UNREPRESENTED GS EMPLOYEES, AND THAT ALL THE GS EMPLOYEES
ENJOY COMMON PERSONNEL POLICIES AND PRACTICES, INCLUDING THE SAME AREA
OF CONSIDERATION FOR PROMOTIONS AND REDUCTION-IN-FORCE PROCEDURES,
COMMON OVERALL MISSION AND SUPERVISION, AND GENERALLY SIMILAR WORKING
CONDITIONS. UNDER THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND
THAT THE CLAIMED EMPLOYEES DID NOT HAVE A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM THE OTHER GS EMPLOYEES
OF THE ACTIVITY. FURTHER, NOTING THAT LABOR RELATIONS AUTHORITY IS
VESTED IN THE ACTIVITY COMMANDER, THE ASSISTANT SECRETARY CONCLUDED THAT
THE CLAIMED UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS, BUT, RATHER, WOULD RESULT IN FRAGMENTATION OF THE
ACTIVITY'S GS EMPLOYEES. ACCORDINGLY, HE ORDERED THAT THE PETITION BE
DISMISSED.
U.S. NAVAL STATION,
U.S. NAVAL BASE,
DEPARTMENT OF THE NAVY,
CHARLESTON, SOUTH CAROLINA
ACTIVITY
CASE NO. 40-7631(RO)
AND
FEDERAL EMPLOYEES METAL TRADES
COUNCIL OF CHARLESTON, METAL
TRADES DEPARTMENT, AFL-CIO
PETITIONER
DECISION AND ORDER
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:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, FEDERAL EMPLOYEES METAL TRADES COUNCIL OF
CHARLESTON, METAL TRADES DEPARTMENT, AFL-CIO, HEREIN CALLED MTC, SEEKS
AN ELECTION IN A UNIT COMPOSED OF ALL EMPLOYEES OF THE TELEPHONE
SERVICES DIVISION, COMMUNICATIONS DEPARTMENT, U.S. NAVAL STATION, U.S.
NAVAL BASE, CHARLESTON, SOUTH CAROLINA, EXCLUDING MANAGEMENT OFFICIALS,
PROFESSIONAL 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. THE ACTIVITY CONTENDS THAT THE
PROPOSED UNIT IS INAPPROPRIATE AS IT EXCLUDES CERTAIN OTHER EMPLOYEES OF
THE ACTIVITY WHO SHARE A COMMUNITY OF INTEREST WITH THOSE IN THE CLAIMED
UNIT. IT CONTENDS FURTHER THAT THE RESULTING FRAGMENTATION WOULD NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS AND THAT
ONLY AN ACTIVITY-WIDE UNIT OF ALL UNREPRESENTED GENERAL SCHEDULE (GS)
EMPLOYEES WOULD BE APPROPRIATE. THE MTC ASSERTS THAT THE PROPOSED UNIT
IS APPROPRIATE AS THE CLAIMED EMPLOYEES ARE THE ONLY EMPLOYEES AT THE
ACTIVITY PROVIDING TELEPHONE SERVICES. IN THE MTC'S VIEW, AN
ACTIVITY-WIDE UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY
OF AGENCY OPERATIONS AS THE EMPLOYEES' DIVERSE SKILLS, WORKING HOURS,
LOCATIONS AND FUNCTIONS WOULD MAKE IT DIFFICULT TO NEGOTIATE AN
AGREEMENT.
THE MISSION OF THE ACTIVITY IS TO PROVIDE LOGISTICAL SUPPORT FOR ALL
SHORE AND SEA COMMANDS ASSIGNED TO THE CHARLESTON NAVAL BASE. HEADED BY
A COMMANDING OFFICER, IT IS ORGANIZED INTO 11 DEPARTMENTS AND 4 STAFF
OFFICES. THE CLAIMED UNIT IS LOCATED IN THE TELEPHONE SERVICES
DIVISION, ONE OF THREE DIVISIONS OF THE COMMUNICATIONS DEPARTMENT, WHICH
PROVIDES MESSAGE TRAFFIC AND TELEPHONE SERVICES FOR THE ACTIVITY AND THE
ENTIRE CHARLESTON NAVAL COMPLEX. THE ACTIVITY EMPLOYS APPROXIMATELY 338
CIVIL SERVICE EMPLOYEES, 800 NON-APPROPRIATED FUND EMPLOYEES AND 500
MILITARY PERSONNEL. AT THE TIME OF THE HEARING HEREIN, THREE
EXCLUSIVELY RECOGNIZED UNITS WERE IN EXISTENCE AT THE ACTIVITY. THE MTC
REPRESENTS AN ACTIVITY-WIDE UNIT OF ALL WAGE GRADE EMPLOYEES, AND ALSO A
UNIT OF ALL POLICE OFFICERS. IN ADDITION, THE INTERNATIONAL ASSOCIATION
OF FIRE FIGHTERS, LOCAL 56, REPRESENTS A UNIT OF FIREFIGHTERS.
THE RECORD REVEALS THAT THE CLAIMED UNIT, WHICH INCLUDES 14 EMPLOYEES
PHYSICALLY LOCATED IN TWO BUILDINGS APPROXIMATELY TWO MILES APART,
PROVIDES TELEPHONE OPERATOR SERVICE AND COMPILES, REVISES AND PUBLISHES
THE TELEPHONE BOOK FOR THE ENTIRE COMPLEX. IN ADDITION, THERE ARE
APPROXIMATELY 87 OTHER UNREPRESENTED GS EMPLOYEES ASSIGNED TO VARIOUS
DEPARTMENTS THROUGHOUT THE ACTIVITY. ALL GS EMPLOYEES ENJOY GENERALLY
SIMILAR WORKING CONDITIONS AND UNIFORM PERSONNEL POLICIES AND PRACTICES.
IN THIS LATTER REGARD, THE RECORD DISCLOSES THAT ALL GS EMPLOYEES ARE
SERVICED BY THE CONSOLIDATED CIVILIAN PERSONNEL OFFICE (CCPO) OF THE
NAVAL SUPPLY CENTER, CHARLESTON, SOUTH CAROLINA, PURSUANT TO A CROSS
SERVICING AGREEMENT BETWEEN THE ACTIVITY AND THE NAVAL SUPPLY CENTER.
IN ADDITION, ALL GS EMPLOYEES ARE IN THE SAME AREA OF CONSIDERATION FOR
PROMOTION AND REDUCTION-IN-FORCE PROCEDURES, AND THE ACTIVITY'S
COMMANDING OFFICER HAS BEEN DELEGATED FULL LABOR RELATIONS AUTHORITY FOR
EMPLOYEES UNDER HIS COMMAND.
BASED ON ALL OF THE FOREGOING CIRCUMSTANCES, I FIND THAT THE UNIT
SOUGHT HEREIN IS NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER SECTION 10 OF THE ORDER. IN MY VIEW, THE CLAIMED GS
EMPLOYEES DO NOT CONSTITUTE A CLEAR AND IDENTIFIABLE GROUPING OF
EMPLOYEES. IN THIS REGARD, THE EVIDENCE ESTABLISHES THAT ALL OF THE GS
EMPLOYEES AT THE ACTIVITY, INCLUDING THOSE IN THE UNIT SOUGHT, ENJOY
COMMON OVERALL MISSION AND SUPERVISION, GENERALLY SIMILAR WORKING
CONDITIONS, AND UNIFORM PERSONNEL POLICIES AND PRACTICES. ACCORDINGLY,
I FIND THAT THE CLAIMED UNIT DOES NOT INCLUDE ALL EMPLOYEES AT THE
ACTIVITY WHO SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST.
FURTHER, NOTING THE DELEGATION OF LABOR RELATIONS AUTHORITY TO THE
ACTIVITY COMMANDER, I FIND THAT THE SOUGHT UNIT WOULD NOT PROMOTE
EFFECTIVE DEALINGS OR EFFICIENCY OF AGENCY OPERATIONS, BUT, RATHER,
WOULD RESULT IN FRAGMENTATION OF THE ACTIVITY'S GS EMPLOYEES. IN VIEW
OF THE ABOVE, I SHALL DISMISS THE PETITION HEREIN.
ORDER
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 40-7631(RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 22, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
7 A/SLMR 906; P. 823; CASE NO. 72-6537(RO); SEPTEMBER 22, 1977.
SEPTEMBER 22, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND DIRECTION OF ELECTIONS OF THE
ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
BUREAU OF LAND MANAGEMENT,
RIVERSIDE DISTRICT OFFICE AND
DESERT PLAN STAFF,
RIVERSIDE, CALIFORNIA
A/SLMR NO. 906
THIS CASE AROSE AS A RESULT OF A PETITION FILED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1061 (AFGE) SEEKING
AN ELECTION IN A UNIT OF ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES
OF THE RIVERSIDE DISTRICT OFFICE AND THE CALIFORNIA DESERT PLAN STAFF
(DPS) OF THE BUREAU OF LAND MANAGEMENT. THE ACTIVITY CONTENDED THAT THE
PROPOSED UNIT WAS INAPPROPRIATE BECAUSE IT WOULD CONTAIN TWO SEPARATELY
IDENTIFIABLE UNITS OF EMPLOYEES WHO DO NOT SHARE A COMMUNITY OF INTEREST
AND THAT SUCH A UNIT WOULD NOT PROMOTE EFFICIENCY OF AGENCY OPERATIONS
AND EFFECTIVE AGENCY DEALINGS. THE INTERVENOR, THE NATIONAL FEDERATION
OF FEDERAL EMPLOYEES, LOCAL 119 (NFFE) ASSERTED THAT ITS PRESENT UNIT
COMPOSED OF RIVERSIDE DISTRICT NONPROFESSIONAL EMPLOYEES WAS AN
APPROPRIATE BARGAINING UNIT.
THE ASSISTANT SECRETARY FOUND THAT THE UNIT PETITIONED FOR BY THE
AFGE WAS INAPPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. IN
THIS REGARD, HE NOTED THAT WHILE THE RIVERSIDE DISTRICT OFFICE AND THE
DPS ARE BOTH COMPONENTS OF THE CALIFORNIA STATE OFFICE, LOCATED IN
GEOGRAPHIC PROXIMITY TO EACH OTHER, THEY HAVE SEPARATE MISSIONS,
DIFFERENT JOB CLASSIFICATIONS, DO NOT ENJOY INTEGRATED OPERATIONS OR JOB
CONTACTS, AND DO NOT EXPERIENCE SIGNIFICANT TRANSFER OR INTERCHANGE OF
PERSONNEL. UNDER THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND
THAT THE UNIT SOUGHT BY THE AFGE LACKED A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST AND, MOREOVER, NOTING THE AUTHORITY AND AUTONOMY
OF THE RESPECTIVE DIRECTORS OF THE DISTRICT AND THE DPS, FOUND THAT THE
PROPOSED UNIT COULD NOT REASONABLY BE EXPECTED TO PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
HOWEVER, THE ASSISTANT SECRETARY FOUND THAT THE EMPLOYEES OF THE
DISTRICT AND THE EMPLOYEES OF THE DPS, SEPARATELY, WOULD CONSTITUTE
UNITS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. IN THIS
REGARD, THE ASSISTANT SECRETARY FOUND THAT IN EACH ORGANIZATIONAL
COMPONENT THE RESPECTIVE EMPLOYEES ENJOY A COMMON MISSION, COMMON
SUPERVISION, HAVE GENERALLY UNIFORM JOB CLASSIFICATIONS, DUTIES AND
FUNCTIONS, AND ENJOY COMMON PERSONNEL POLICIES AND PRACTICES, AND
ESSENTIALLY SIMILAR WORKING CONDITIONS. UNDER THESE CIRCUMSTANCES, THE
ASSISTANT SECRETARY FOUND THAT THE EMPLOYEES OF THE DISTRICT AND
EMPLOYEES OF THE DPS, SEPARATELY, SHARE A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM EACH OTHER AND OTHER
STATE EMPLOYEES OF THE BUREAU OF LAND MANAGEMENT. MOREOVER, NOTING THE
POSITION OF THE ACTIVITY THAT EACH UNIT SEPARATELY WOULD CONSTITUTE AN
APPROPRIATE UNIT AND THE FACT THAT EACH DIRECTOR HAS SUBSTANTIAL
PERSONNEL AUTHORITY, THE ASSISTANT SECRETARY FOUND THAT SEPARATE UNITS
WOULD PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED ELECTIONS IN THE UNITS
FOUND APPROPRIATE.
BUREAU OF LAND MANAGEMENT,
RIVERSIDE DISTRICT OFFICE AND
DESERT PLAN STAFF,
RIVERSIDE, CALIFORNIA
ACTIVITY
CASE NO. 72-6537(RO)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1061
PETITIONER
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 119
INTERVENOR
DECISION AND DIRECTION OF ELECTIONS
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER THOMAS R. WILSON.
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 THE
ACTIVITY AND THE INTERVENOR, 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,
AFL-CIO, LOCAL 1061, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE RIVERSIDE DISTRICT
OFFICE AND THE CALIFORNIA DESERT PLAN STAFF, EXCLUDING MANAGEMENT
OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, AND SUPERVISORS AS DEFINED IN THE ORDER. THE
ACTIVITY CONTENDS THAT THE PROPOSED UNIT IS INAPPROPRIATE BECAUSE IT IS
COMPOSED OF TWO SEPARATELY IDENTIFIABLE UNITS OF EMPLOYEES WHO DO NOT
SHARE A COMMUNITY OF INTEREST AND THAT SUCH A UNIT WOULD NOT PROMOTE
EFFICIENCY OF AGENCY OPERATIONS AND EFFECTIVE DEALINGS. THE INTERVENOR,
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 119, HEREINAFTER CALLED
NFFE, ASSERTS THAT ITS PRESENT UNIT, COMPOSED OF ALL THE RIVERSIDE
DISTRICT NONPROFESSIONAL EMPLOYEES, IS THE APPROPRIATE BARGAINING UNIT.
/2/
THE BUREAU OF LAND MANAGEMENT MANAGES THE NATIONAL RESOURCE LANDS AND
THEIR RESOURCES. IT ALSO ADMINISTERS THE MINERAL RESOURCES CONNECTED
WITH ACQUIRED LANDS AND THE SUBMERGED LANDS OF THE OUTER CONTINENTAL
SHELF. THE BUREAU ORGANIZATION CONSISTS ESSENTIALLY OF A HEADQUARTERS
IN WASHINGTON, D.C. AND ONE DETACHED HEADQUARTERS OFFICE HAVING
BUREAUWIDE SUPPORT RESPONSIBILITIES FOR STATE, DISTRICT, AND OUTER
CONTINENTAL SHELF OFFICES. THE RIVERSIDE DISTRICT IS ONE OF SIX
OPERATIONAL DISTRICTS WITHIN THE STATE OF CALIFORNIA AND HAS THE
RESPONSIBILITY FOR ADMINISTERING APPROXIMATELY 9.5 MILLION ACRES OF
FEDERAL LAND WITHIN FIVE SOUTHERN CALIFORNIA COUNTIES. DUE TO ITS VAST
AREA, THE RIVERSIDE DISTRICT HAS FOUR AREA OFFICES, TWO OF WHICH ARE
LOCATED WITHIN THE DISTRICT OFFICE BUILDING IN RIVERSIDE, WITH THE OTHER
TWO OFFICES BEING LOCATED AT BARSTOW AND EL CENTRO. /3/ THE DISTRICT
HAS APPROXIMATELY 70 EMPLOYEES IN THE FOLLOWING 33 CLASSIFICATIONS:
MAINTENANCEMAN, SOIL SCIENTIST, BIOLOGICAL TECHNICIAN, CLERK TYPIST,
PUBLIC CONTRACT SPECIALIST, OUTDOOR RECREATION PLANNER, CARTOGRAPHIC
AID, NATURAL RESOURCE SPECIALIST, DISPATCHER, WILDLIFE BIOLOGIST, MINING
ENGINEER, LANDSCAPE ARCHITECT, LABORER, WAREHOUSEMAN, RECORDS MANAGEMENT
SPECIALIST, RANGE CONSERVATIONIST, ACCOUNTS MAINTENANCEMAN, INFORMATION
SPECIALIST, PLAN PHYSIOLOGIST, BOTANIST, ELECTRONIC TECHNICIAN,
TECHNICAL PUBLICATION EDITOR, REALTY SPECIALIST, ARCHAEOLOGIST,
GEOGRAPHER, RANGE TECHNICIAN, CLK-DICT-MACH-TRANSCRIBER, CONTRACT
REPRESENTATIVE, GEOLOGIST, CIVIL ENGINEERING TECHNICIAN, VOUCHER
EXAMINER, METEOROLOGIST, AND RECREATION TECHNICIAN.
THE DISTRICT IS SUPERVISED BY A DISTRICT DIRECTOR WHO IS THE
SELECTING OFFICIAL FOR ALL PERSONNEL HIRED BY THE DISTRICT UP TO GS-9.
THE STATE DIRECTOR IS THE SELECTING OFFICIAL FOR GS-11 AND ABOVE. THE
DISTRICT DIRECTOR ESTABLISHES LOCAL POLICY REGARDING PERSONNEL AND LABOR
RELATIONS FOR HIS DISTRICT, BUT HE HAS NO AUTHORITY OVER DESERT PLAN
STAFF (DES) PERSONNEL.
THE RECORD REVEALS THAT THE DPS IS A SPECIAL STAFF TASK FORCE,
RESPONSIBLE TO THE CALIFORNIA STATE DIRECTOR, WHOSE MISSION IS TO
PREPARE A LONG-RANGE COMPREHENSIVE PLAN FOR THE ALLOCATION OF LAND USES
AND RESOURCES WITHIN THE CALIFORNIA DESERT, AS REQUIRED BY THE FEDERAL
LAND POLICY AND MANAGEMENT ACT OF 1976 (FLPMA). THIS PLAN MUST BE
COMPLETED BY SEPTEMBER 30, 1980. THE DPS FUNCTIONS AS AN INTEGRATED
OPERATIONAL UNIT AND INCLUDES PROFESSIONAL, TECHNICAL, ADMINISTRATIVE
AND MANAGEMENT PERSONNEL. AT THE TIME OF THE HEARING, THE RIVERSIDE
DISTRICT PROVIDED CERTAIN ADMINISTRATIVE SERVICES TO THE DPS; HOWEVER,
IT IS ANTICIPATED THAT SUCH SERVICES WILL BE DISCONTINUED OR
SUBSTANTIALLY MODIFIED WHEN THE DPS MOVES TO SEPARATE QUARTERS. /4/ THE
DPS IS HEADED BY A DESERT PLAN DIRECTOR WHO RECEIVES POLICY DIRECTION
AND GUIDANCE FROM THE STATE DIRECTOR. OPERATIONAL PRACTICES AND
PROCEDURES FOLLOW BUREAU OF LAND MANAGEMENT MANUAL REQUIREMENTS UNLESS
DEVIATIONS THEREFROM ARE APPROVED BY THE STATE DIRECTOR.
THE DPS DIRECTOR IS THE APPROVING OFFICIAL FOR ALL STAFF HIRING
DECISIONS UP TO AND INCLUDING GS-9. THE STATE DIRECTOR HAS APPROVAL
AUTHORITY FOR THE HIRING OF PERSONNEL ABOVE GS-11. THE DPS CONTAINS
APPROXIMATELY 30 EMPLOYEES IN THE FOLLOWING CLASSIFICATIONS: OUTDOOR
RECREATION PLANNER, ZOOLOGIST, ARCHAEOLOGIST, CARTOGRAPHIC AID, WILDLIFE
BIOLOGIST, SOIL SCIENTIST, RANGE CONSERVATIONIST, COMPUTER SPECIALIST,
LANDSCAPE ARCHITECT, COMMUNITY PLANNER, GEOLOGIST, URBAN PLANNER,
CARTOGRAPHIC TECHNICIAN, SECRETARY, CLERK-TYPIST AND CLERK-STENOGRAPHER.
THE DPS FUNCTIONS EXTEND BEYOND THE RIVERSIDE DISTRICT TO INCLUDE A
PORTION OF THE CALIFORNIA DESERT IN THE BAKERSFIELD DISTRICT. PERSONNEL
POSITIONS IN THE DPS ARE FILLED BY THE STATE PERSONNEL OFFICE IN
SACRAMENTO AND DIRECTIVES INVOLVING BOTH THE DPS AND RIVERSIDE DISTRICT
EMPLOYEES ARE SIGNED BY BOTH THE DESERT PLAN MANAGER AND RIVERSIDE
DISTRICT DIRECTOR. WHILE BOTH THE DISTRICT AND THE DPS USE SIMILAR
TECHNIQUES IN THE COLLECTION OF DATA, EACH UTILIZES ITS DATA IN A
DIFFERENT WAY; I.E., INTERIM MANAGEMENT VERSES COMPREHENSIVE LONG-RANGE
PLANNING.
BASED ON ALL THE FOREGOING, I FIND THAT THE UNIT SOUGHT BY THE AFGE,
INCLUDING ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF BOTH THE
RIVERSIDE DISTRICT AND THE DPS, IS NOT APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION UNDER THE ORDER. THUS, AS NOTED ABOVE, WHILE THE
DISTRICT AND THE DPS CONSTITUTE COMPONENTS OF THE CALIFORNIA STATE
OFFICE AND ARE LOCATED IN GEOGRAPHIC PROXIMITY TO EACH OTHER, THEY ARE
ENGAGED IN TOTALLY SEPARATE MISSIONS. AS A CONSEQUENCE, THE EMPLOYEES
IN EACH COMPONENT GENERALLY HAVE DIFFERENT JOB CLASSIFICATIONS AND
FUNCTIONS, DO NOT ENJOY INTEGRATED OPERATIONS OR JOB CONTACTS, AND DO
NOT EXPERIENCE SIGNIFICANT TRANSFER OR INTERCHANGE. UNDER THESE
CIRCUMSTANCES, I FIND THAT THE EMPLOYEES OF THE DISTRICT AND THE DPS DO
NOT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST. MOREOVER,
NOTING THE DELEGATION TO THE RESPECTIVE DIRECTORS OF SIGNIFICANT
AUTHORITY AND AUTONOMY WITH RESPECT TO PERSONNEL AND LABOR RELATIONS
POLICIES, I FIND THAT THE CLAIMED UNIT COULD NOT REASONABLY BE EXPECTED
TO PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
HOWEVER, I FURTHER FIND, UNDER ALL THE ABOVE CIRCUMSTANCES, THAT THE
EMPLOYEES OF THE DISTRICT AND THE EMPLOYEES OF THE DPS, SEPARATELY,
WOULD CONSTITUTE UNITS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER THE ORDER. THUS, IN EACH OF THE ORGANIZATIONAL
COMPONENTS, THE RESPECTIVE EMPLOYEES ENJOY A COMMON MISSION, COMMON
SUPERVISION, HAVE GENERALLY UNIFORM JOB CLASSIFICATIONS, DUTIES AND
FUNCTIONS, AND ENJOY COMMON PERSONNEL POLICIES AND PRACTICES AND
ESSENTIALLY SIMILAR WORKING CONDITIONS. UNDER THESE CIRCUMSTANCES, I
FIND THAT THE EMPLOYEES OF THE DISTRICT AND EMPLOYEES OF THE DPS,
SEPARATELY, SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
SEPARATE AND DISTINCT FROM OTHER EMPLOYEES OF THE BUREAU OF LAND
MANAGEMENT AND FROM EACH OTHER. MOREOVER, NOTING PARTICULARLY THE
POSITION OF THE ACTIVITY WITH RESPECT TO THE APPROPRIATENESS OF THE
UNITS, AND THE FACT THAT THE RESPECTIVE DIRECTORS IN BOTH THE DISTRICT
AND THE DPS APPEAR TO HAVE BEEN DELEGATED SUBSTANTIAL AUTHORITY IN LABOR
RELATIONS MATTERS CONCERNING EMPLOYEES IN THEIR RESPECTIVE
ORGANIZATIONS, I FIND THAT SUCH UNITS WILL PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS.
ACCORDINGLY, I SHALL DIRECT SEPARATE ELECTIONS TO BE CONDUCTED IN THE
FOLLOWING UNITS WHICH I FIND TO BE APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION UNDER THE ORDER: /5/
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE RIVERSIDE
DISTRICT OFFICE OF THE
BUREAU OF LAND MANAGEMENT, EXCLUDING MANAGEMENT OFFICIALS, EMPLOYEES
ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND
SUPERVISORS AS DEFINED IN THE
ORDER.
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE DESERT PLAN
STAFF OF THE BUREAU OF
LAND MANAGEMENT, EXCLUDING MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY CLERICAL CAPACITY, AND SUPERVISORS AS DEFINED
IN THE ORDER.
AS NOTED ABOVE, THE UNITS FOUND APPROPRIATE INCLUDE PROFESSIONAL
EMPLOYEES. HOWEVER, THE ASSISTANT SECRETARY IS PROHIBITED BY SECTION
10(B)(4) OF THE ORDER FROM INCLUDING PROFESSIONAL EMPLOYEES IN ANY UNIT
WITH NONPROFESSIONAL EMPLOYEES UNLESS A MAJORITY OF THE PROFESSIONAL
EMPLOYEES VOTES FOR INCLUSION IN SUCH UNIT. ACCORDINGLY, THE DESIRES OF
THE PROFESSIONAL EMPLOYEES MUST BE ASCERTAINED.
HAVING FOUND THAT THE PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF
THE RIVERSIDE DISTRICT OFFICE AND THE PROFESSIONAL AND NONPROFESSIONAL
EMPLOYEES OF THE DESERT PLAN STAFF MAY CONSTITUTE SEPARATE APPROPRIATE
UNITS, I SHALL NOT MAKE ANY FINAL DETERMINATIONS AT THIS TIME, BUT SHALL
FIRST ASCERTAIN THE DESIRES OF SUCH EMPLOYEES BY DIRECTING ELECTIONS IN
THE FOLLOWING VOTING GROUPS:
(A) ALL PROFESSIONAL EMPLOYEES OF THE RIVERSIDE DISTRICT OFFICE OF
THE BUREAU OF LAND MANAGEMENT, EXCLUDING NONPROFESSIONAL EMPLOYEES,
MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY AND SUPERVISORS AS DEFINED IN THE
ORDER.
(B) ALL EMPLOYEES OF THE RIVERSIDE DISTRICT OFFICE OF THE BUREAU OF
LAND MANAGEMENT, EXCLUDING PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, AND SUPERVISORS AS DEFINED IN THE ORDER.
(C) ALL PROFESSIONAL EMPLOYEES OF THE DESERT PLAN STAFF OF THE BUREAU
OF LAND MANAGEMENT, EXCLUDING NONPROFESSIONAL EMPLOYEES, MANAGEMENT
OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, AND SUPERVISORS AS DEFINED IN THE ORDER.
(D) ALL EMPLOYEES OF THE DESERT PLAN STAFF OF THE BUREAU OF LAND
MANAGEMENT, EXCLUDING PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, AND SUPERVISORS AS DEFINED IN THE ORDER.
THE NONPROFESSIONAL EMPLOYEES IN VOTING GROUP (B) SHALL VOTE WHETHER
THEY DESIRE TO BE REPRESENTED BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1061, THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 119, OR NEITHER. THE EMPLOYEES IN PROFESSIONAL VOTING
GROUP (A) WILL BE ASKED TWO QUESTIONS ON THEIR BALLOTS: (1) WHETHER OR
NOT THEY WISH TO BE INCLUDED WITH 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, AFL-CIO, LOCAL 1061. IN THE EVENT
THAT A MAJORITY OF THE VALID VOTES IN VOTING GROUP (A) ARE CAST IN FAVOR
OF INCLUSION WITH THE NONPROFESSIONAL EMPLOYEES, AND THE MAJORITY OF
VALID VOTES IN VOTING GROUP (B) ARE NOT CAST FOR THE NFFE, /6/ THE VOTES
OF VOTING GROUP (A) SHALL BE COMBINED WITH THE VOTES OF VOTING GROUP
(B).
UNLESS A MAJORITY OF THE VOTES OF VOTING GROUP (A) ARE CAST FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES IN VOTING
GROUP (B), OR IF THE MAJORITY OF VOTES IN VOTING GROUP (B) ARE CAST IN
FAVOR OF THE NFFE, A SEPARATE PROFESSIONAL UNIT WILL BE ESTABLISHED AND
AN APPROPRIATE CERTIFICATION WILL BE ISSUED BY THE AREA ADMINISTRATOR
INDICATING WHETHER OR NOT THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1061 WAS SELECTED BY THE PROFESSIONAL
EMPLOYEES.
THE EMPLOYEES IN THE NONPROFESSIONAL VOTING GROUP (D) WILL BE POLLED
WHETHER OR NOT THEY DESIRE TO BE REPRESENTED BY THE AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1061. THE EMPLOYEES IN THE
PROFESSIONAL VOTING GROUP (C) WILL BE ASKED TWO QUESTIONS ON THEIR
BALLOTS: (1) WHETHER OR NOT THEY WISH TO BE INCLUDED WITH THE
NONPROFESSIONAL EMPLOYEES IN VOTING GROUP (D) 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, AFL-CIO, LOCAL 1061. IN THE EVENT
THAT A MAJORITY OF THE VALID BALLOTS OF VOTING GROUP (C) ARE CAST IN
FAVOR OF INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES IN
VOTING GROUP (D), THE BALLOTS OF VOTING GROUP (C) SHALL BE COMBINED WITH
THOSE OF VOTING GROUP (D).
UNLESS A MAJORITY OF THE VALID VOTES OF VOTING GROUP (C) ARE CAST FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES OF VOTING
GROUP (D), THEY WILL BE TAKEN TO HAVE INDICATED THEIR DESIRE TO
CONSTITUTE A SEPARATE UNIT, AND AN APPROPRIATE CERTIFICATION WILL BE
ISSUED BY THE AREA ADMINISTRATOR INDICATING WHETHER OR NOT THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1061 WAS SELECTED BY
THE PROFESSIONAL EMPLOYEES.
THE UNIT DETERMINATIONS IN THE SUBJECT CASE ARE BASED IN PART, THEN,
UPON THE RESULTS OF THE ELECTIONS AMONG THE PROFESSIONAL EMPLOYEES
AND/OR THE RESULTS OF THE ELECTION AMONG THE NONPROFESSIONAL EMPLOYEES
IN VOTING GROUP (B). HOWEVER, I WILL NOW MAKE THE FOLLOWING FINDINGS IN
REGARD TO THE APPROPRIATE UNITS:
1. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES IN VOTING GROUP (A)
VOTES FOR INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES IN
VOTING GROUP (B), AND/OR A MAJORITY OF THE NONPROFESSIONAL EMPLOYEES IN
VOTING GROUP (B) DOES NOT VOTE FOR THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 119, 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 RIVERSIDE
DISTRICT OFFICE OF THE
BUREAU OF LAND MANAGEMENT, EXCLUDING MANAGEMENT OFFICIALS, EMPLOYEES
ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND
SUPERVISORS AS DEFINED IN THE
ORDER.
2. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES IN VOTING GROUP (A)
DOES NOT VOTE FOR INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL
EMPLOYEES IN VOTING GROUP (B), AND/OR THE MAJORITY OF EMPLOYEES IN
VOTING GROUP (B) VOTES FOR THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 119, 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 PROFESSIONAL EMPLOYEES OF THE RIVERSIDE DISTRICT OFFICE OF
THE BUREAU OF LAND
MANAGEMENT, EXCLUDING NONPROFESSIONAL EMPLOYEES, MANAGEMENT
OFFICIALS, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND
SUPERVISORS AS DEFINED IN
THE ORDER.
(B) ALL EMPLOYEES OF THE RIVERSIDE DISTRICT OFFICE OF THE BUREAU OF
LAND MANAGEMENT,
EXCLUDING PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL
WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND SUPERVISORS AS
DEFINED IN THE ORDER.
3. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES IN VOTING GROUP (C)
VOTES FOR INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES IN
VOTING GROUP (D), 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 DESERT PLAN
STAFF OF THE BUREAU OF
LAND MANAGEMENT, EXCLUDING MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY CLERICAL CAPACITY, AND SUPERVISORS AS DEFINED
IN THE ORDER.
4. IF A MAJORITY OF PROFESSIONAL EMPLOYEES IN VOTING GROUP (C) DOES
NOT VOTE FOR INCLUSION IN THE SAME UNIT WITH THE NONPROFESSIONAL
EMPLOYEES IN VOTING GROUP (D), 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 PROFESSIONAL EMPLOYEES OF THE DESERT PLAN STAFF, EXCLUDING
NONPROFESSIONAL
EMPLOYEES, MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, AND SUPERVISORS AS DEFINED IN THE ORDER.
(B) ALL EMPLOYEES OF THE DESERT PLAN STAFF, EXCLUDING PROFESSIONAL
EMPLOYEES, MANAGEMENT
OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN
A PURELY CLERICAL
CAPACITY, AND SUPERVISORS AS DEFINED IN THE ORDER.
DIRECTION OF ELECTIONS
ELECTIONS BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES IN
THE UNITS FOUND APPROPRIATE, 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 UNITS 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 TO VOTE IN VOTING GROUP (B) SHALL VOTE
WHETHER THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
AFL-CIO, LOCAL 1061, THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
119, OR NEITHER. THOSE ELIGIBLE TO VOTE IN VOTING GROUPS (A), (C) AND
(D) 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 1061.
BECAUSE THE ABOVE DIRECTION OF ELECTIONS INVOLVES UNITS SUBSTANTIALLY
DIFFERENT THAN THAT SOUGHT BY THE AFGE, I SHALL PERMIT IT TO WITHDRAW
ITS PETITION IF IT DOES NOT DESIRE TO PROCEED TO ELECTIONS IN THE UNITS
FOUND APPROPRIATE IN THE SUBJECT CASE UPON NOTICE TO THE APPROPRIATE
AREA ADMINISTRATOR WITHIN 10 DAYS OF THE ISSUANCE OF THIS DECISION. IF
THE AFGE DESIRES TO PROCEED TO ELECTIONS, BECAUSE THE UNITS FOUND
APPROPRIATE ARE SUBSTANTIALLY DIFFERENT THAN IT ORIGINALLY PETITIONED
FOR, I DIRECT THAT THE ACTIVITY, AS SOON AS POSSIBLE, SHALL POST COPIES
OF THE NOTICE OF UNIT DETERMINATION, WHICH SHALL BE FURNISHED BY THE
APPROPRIATE AREA ADMINISTRATOR, IN PLACES WHERE NOTICES ARE NORMALLY
POSTED AFFECTING THE EMPLOYEES IN THE UNITS I HAVE HEREIN FOUND
APPROPRIATE. SUCH NOTICE SHALL CONFORM IN ALL RESPECTS TO THE
REQUIREMENTS OF SECTION 202.4(C) AND (D) 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 IN THE
ELECTIONS AMONG THE EMPLOYEES IN THE UNITS FOUND APPROPRIATE.
DATED, WASHINGTON, D.C.
SEPTEMBER 22, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ AT THE HEARING, THE ACTIVITY REQUESTED A POSTPONEMENT OF ONE WEEK
IN ORDER TO GATHER AND PREPARE EVIDENCE CONCERNING THE PROFESSIONAL
STATUS OF RANGE CONSERVATIONISTS AND OUTDOOR RECREATION PLANNERS OF THE
RIVERSIDE DISTRICT OFFICE. THIS REQUEST WAS DENIED BY THE HEARING
OFFICER. IN VIEW OF THE FACT THAT NO EVIDENCE WAS INTRODUCED AT THE
HEARING WITH REGARD TO THESE CLASSIFICATIONS, I WILL MAKE NO
DETERMINATION WITH REGARD TO THE PROFESSIONAL STATUS OF THE EMPLOYEES
INVOLVED.
/2/ THE NFFE INTERVENED SOLELY ON THE BASIS OF ITS EXCLUSIVELY
RECOGNIZED UNIT, AND DID NOT EXPRESS AN INTEREST IN REPRESENTING THE
PROFESSIONAL EMPLOYEES OF THE RIVERSIDE DISTRICT OR THE PROFESSIONAL AND
NONPROFESSIONAL EMPLOYEES OF THE DESERT PLAN STAFF.
/3/ THE SOUGHT UNIT INCLUDES ALL FOUR AREA OFFICES.
/4/ IT APPEARS FROM THE RECORD THAT THE FUTURE QUARTERS OF THE DPS
WILL BE IN A SEPARATE BUILDING BUT STILL WITHIN RIVERSIDE, CALIFORNIA.
/5/ THE PARTIES STIPULATED THAT TEMPORARY EMPLOYEES OF BOTH THE
DISTRICT AND THE DPS SHARE IN THE COMMUNITY OF INTEREST ENJOYED BY THE
REGULAR FULLTIME EMPLOYEES OF EACH ORGANIZATION. HOWEVER, AS THERE IS
NO EVIDENCE IN THE RECORD WHETHER OR NOT SUCH EMPLOYEES HAVE A
REASONABLE EXPECTANCY OF CONTINUED EMPLOYMENT, I SHALL MAKE NO FINDING
AS TO THEIR ELIGIBILITY.
/6/ THE NFFE INTERVENED IN THE INSTANT PETITION SOLELY ON THE BASIS
OF ITS EXISTING RECOGNITION AS THE EXCLUSIVE REPRESENTATIVE OF THE
NONPROFESSIONAL EMPLOYEES OF THE DISTRICT (VOTING GROUP (B)) AND DOES
NOT SEEK TO REPRESENT ANY OTHER GROUP OF EMPLOYEES INVOLVED HEREIN.
ACCORDINGLY, THE NFFE WILL APPEAR ON THE BALLOT ONLY WITH RESPECT TO
THAT GROUP. IF A MAJORITY OF VALID VOTES IN VOTING GROUP (B) ARE CAST
FOR THE NFFE, THE VOTES IN VOTING GROUP (A) WILL NOT BE COMBINED WITH
THE VOTES OF VOTING GROUP (B).
7 A/SLMR 905; P. 817; CASE NOS. 31-10642(RA) 31-10651(RA);
SEPTEMBER 22, 1977.
SEPTEMBER 22, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION, ORDER AND DIRECTION OF ELECTION OF THE
ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION,
BOSTON, MASSACHUSETTS
A/SLMR NO. 905
THIS CASE INVOLVED TWO RA PETITIONS FILED BY THE DEFENSE CONTRACT
ADMINISTRATION SERVICES REGION, BOSTON, MASSACHUSETTS, (DCASR) WHICH, IN
EFFECT, SOUGHT A DETERMINATION BY THE ASSISTANT SECRETARY AS TO THE
IMPACT OF A REORGANIZATION ON CERTAIN UNITS OF EXCLUSIVE RECOGNITION
REPRESENTED BY THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS
R1-76 AND R1-181 (NAGE).
AS A RESULT OF A REORGANIZATION IN NOVEMBER 1976, THE DEFENSE
CONTRACT SERVICES DISTRICT, HARTFORD, CONNECTICUT, (DCASD) WAS
DISESTABLISHED AND REPLACED BY TWO DEFENSE CONTRACT ADMINISTRATION
SERVICES MANAGEMENT AREAS, (DCASMAS) IN HARTFORD AND IN BRIDGEPORT.
PRIOR TO THE REORGANIZATION, THE DCASD, HARTFORD, WAS COMPRISED OF FOUR
DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICES (DCASOS), INCLUDING AN
AREA OFFICE AT BRIDGEPORT EXCLUSIVELY REPRESENTED, ALONG WITH THE
HARTFORD DISTRICT OFFICE EMPLOYEES, BY THE NAGE LOCAL R1-76, AND THREE
OFFICES AT PLANT SITES, DCASO, AVCO, EXCLUSIVELY REPRESENTED BY THE NAGE
LOCAL R1-181, DCASO, HAMILTON STANDARD, REPRESENTED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1906 (AFGE), AND
DCASO, GENERAL ELECTRIC, BURLINGTON, EXCLUSIVELY REPRESENTED BY THE NAGE
LOCAL R1-170.
THE DCASR TOOK THE POSITION THAT THE 1976 REORGANIZATION CHANGED THE
CHARACTER AND SCOPE OF THE EXCLUSIVELY RECOGNIZED UNITS SO AS TO RENDER
THEM INAPPROPRIATE, AND THAT, AS A RESULT OF THE REORGANIZATION, THERE
NOW EXISTED TWO SEPARATE UNITS, DCASMA, HARTFORD AND DCASMA, BRIDGEPORT.
THE NAGE LOCALS R1-76 AND R1-181, DID NOT OBJECT TO THE UNIT
DESCRIPTIONS AS DEFINED BY THE DCASR. HOWEVER, THEY DISAGREED AS TO
WHETHER LOCAL R1-76 IS THE EXCLUSIVELY RECOGNIZED REPRESENTATIVE IN BOTH
DCAMAS.
IN CASE NO. 31-10642(RA) THE ASSISTANT SECRETARY FOUND THAT THE UNIT
EXCLUSIVELY REPRESENTED BY THE NAGE LOCAL R1-76 AT THE HARTFORD, DCASD,
WHILE DIMINISHED IN PERSONNEL AND GEOGRAPHIC AREA, CONTINUED, AFTER THE
REORGANIZATION, TO REMAIN APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION. HE NOTED THAT THE EMPLOYEES IN THE HARTFORD, DCASMA,
CONTINUED TO SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AND
THAT THE UNIT WILL CONTINUE TO PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY
OF AGENCY OPERATIONS BY ESTABLISHING A UNIT STRUCTURE WHICH COINCIDES
WITH THE ACTIVITY'S COMMAND STRUCTURE AND WHICH CONSTITUTES THE LEVEL AT
WHICH AGREEMENTS MAY BE NEGOTIATED. IN THE ASSISTANT SECRETARY'S VIEW,
THE REORGANIZATION DID NOT ESSENTIALLY ALTER EITHER THE MISSION OR TYPE
OF DUTIES PERFORMED. HE NOTED THAT PERSONNEL POLICIES AND PRACTICES,
INCLUDING PROMOTIONS, CLASSIFICATIONS AND TRAINING, ARE STILL
ESTABLISHED WITHIN REGIONAL HEADQUARTERS. HE ALSO NOTED THAT BARGAINING
UNIT EMPLOYEES CONTINUE TO BE SERVICED BY THE DCASR PERSONNEL OFFICE
CONCERNING PERSONNEL MATTERS AND LABOR RELATIONS GUIDANCE CONTINUES TO
FLOW FROM DCASR HEADQUARTERS. ACCORDINGLY, THE ASSISTANT SECRETARY
ORDERED THAT THE PETITION IN CASE NO. 31-10642(RA) BE DISMISSED.
IN REGARD TO THE PETITION IN CASE NO. 31-10651(RA) COVERING THE NEWLY
ESTABLISHED DCASMA, BRIDGEPORT, THE ASSISTANT SECRETARY NOTED THAT AFTER
THE REORGANIZATION THE DCASO, BRIDGEPORT, PHYSICALLY MOVED TO THE
OFFICES OF THE DCASO, AVCO, WHICH WAS DISESTABLISHED, AND THEY WERE
DESIGNATED AS THE DCASMA, BRIDGEPORT. HE FOUND THAT THE EMPLOYEES OF
THE FORMER DCASO, BRIDGEPORT, EXCLUSIVELY REPRESENTED BY NAGE LOCAL
R1-76, AND THE EMPLOYEES OF THE FORMER DCASO, AVCO, EXCLUSIVELY
REPRESENTED BY NAGE LOCAL R1-181, HAVE BECOME SO INTERMINGLED WITHIN THE
DCASMA, BRIDGEPORT, THAT NEITHER UNIT, DCASO, AVCO, NOR DCASO,
BRIDGEPORT, IS SEPARATELY APPROPRIATE. THE ASSISTANT SECRETARY FOUND
THAT ALL THE EMPLOYEES OF THE DCASMA, BRIDGEPORT, PERFORM THEIR DUTIES
PURSUANT TO POLICIES AND PROCEDURES ESTABLISHED BY THE DCASR, BOSTON,
AND THEY ARE SERVICED BY THE DCASR PERSONNEL OFFICE. HE NOTED THAT THE
EMPLOYEES INVOLVED ENJOY COMMON SUPERVISION, ARE SUBJECT TO THE SAME
PERSONNEL POLICIES AND WORKING CONDITIONS, PERFORM THEIR DUTIES WITHIN
THE SAME GEOGRAPHIC AREA AND SHARE THE SAME AREAS OF CONSIDERATION FOR
PROMOTIONS AND REDUCTION-IN-FORCE PROCEDURES. UNDER THESE CIRCUMSTANCES
HE FOUND THAT THEY SHARED A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
SEPARATE AND DISTINCT FROM OTHER EMPLOYEES OF DCASR, BOSTON. HE ALSO
FOUND THAT THE PETITIONED FOR UNIT OF ALL THE EMPLOYEES OF THE DCASMA,
BRIDGEPORT, WOULD PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS BY REDUCING UNIT FRAGMENTATION AND BY ESTABLISHING A
BARGAINING UNIT WHICH COINCIDES WITH THE ACTIVITY'S ORGANIZATIONAL
STRUCTURE AND WHICH CONSTITUTES THE LEVEL AT WHICH AGREEMENTS MAY BE
NEGOTIATED. ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED AN ELECTION IN
THE UNIT FOUND APPROPRIATE.
DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION,
BOSTON, MASSACHUSETTS
ACTIVITY-PETITIONER
CASE NO. 31-10642(RA)
AND
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, R1-76
LABOR ORGANIZATION
DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION,
BOSTON, MASSACHUSETTS
ACTIVITY-PETITIONER
CASE NO. 31-10651(RA)
AND
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R1-181
LABOR ORGANIZATION
AND
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R1-76
LABOR ORGANIZATION
DECISION, ORDER AND DIRECTION OF ELECTION
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A CONSOLIDATED HEARING /1/ WAS HELD BEFORE HEARING OFFICER
CAROL C. BLACKBURN. 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 DEFENSE CONTRACT ADMINISTRATION SERVICES REGION, BOSTON,
MASSACHUSETTS, HEREINAFTER CALLED DCASR OR ACTIVITY-PETITIONER, FILED RA
PETITIONS SEEKING A DETERMINATION BY THE ASSISTANT SECRETARY WITH
RESPECT TO THE EFFECT OF A REORGANIZATION ON CERTAIN EXISTING
EXCLUSIVELY RECOGNIZED UNITS. IN CASE NO. 31-10642(RA), THE
ACTIVITY-PETITIONER CONTENDS THAT CERTAIN EXCLUSIVELY RECOGNIZED UNITS
ARE NOW INAPPROPRIATE AS A RESULT OF A REORGANIZATION IN WHICH THE
DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT, HARTFORD,
CONNECTICUT, HEREINAFTER CALLED DCASD, HARTFORD, WAS DISESTABLISHED AS A
SEPARATE ADMINISTRATIVE ENTITY, AND WHICH RESULTED IN, AMONG OTHER
THINGS, THE ESTABLISHMENT OF TWO SEPARATE DEFENSE CONTRACT
ADMINISTRATION SERVICES MANAGEMENT AREAS, HEREINAFTER CALLED DCASMA(S),
IN HARTFORD AND BRIDGEPORT, CONNECTICUT. /2/ IN CASE NO. 31-10651(RA),
THE ACTIVITY-PETITIONER CONTENDS THAT AS A RESULT OF THE AFOREMENTIONED
REORGANIZATION, THE EXCLUSIVELY RECOGNIZED UNIT AT THE DEFENSE CONTRACT
ADMINISTRATION SERVICES OFFICE AT THE AVCO CORPORATION FACILITIES,
STRATFORD, CONNECTICUT, HEREINAFTER CALLED DCASO, AVCO, REPRESENTED BY
THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-181,
HEREINAFTER CALLED NAGE LOCAL R1-181, HAS LOST ITS ORGANIZATIONAL
IDENTITY AND IS NO LONGER APPROPRIATE. UNDER THE CURRENT CIRCUMSTANCES,
THE ACTIVITY-PETITIONER CONTENDS THAT THE AVCO UNIT EMPLOYEES SHOULD NOW
BE INCLUDED WITHIN THE DCASMA, BRIDGEPORT, UNIT.
DCASR, BOSTON, IS ONE OF NINE REGIONS OF THE DEFENSE LOGISTICS
AGENCY, FORMERLY THE DEFENSE SUPPLY AGENCY. IT PROVIDES CONTRACT
ADMINISTRATION SERVICES IN SUPPORT OF THE DEPARTMENT OF DEFENSE AND
OTHER FEDERAL AGENCIES, AND ENCOMPASSES A GEOGRAPHIC AREA WHICH INCLUDES
THE STATES OF MAINE, NEW HAMPSHIRE, VERMONT, MASSACHUSETTS, RHODE
ISLAND, CONNECTICUT AND NEW YORK (EXCEPT NEW YORK CITY AND ADJOINING
COUNTIES). THE DCASR IS HEADED BY A REGIONAL COMMANDER, A MILITARY
OFFICER, WHOSE OFFICE IS LOCATED AT THE DCASR HEADQUARTERS IN BOSTON.
REPORTING TO THE COMMANDER AND LOCATED AT HEADQUARTERS ARE SEVERAL
OFFICES AND DIRECTORATES WHICH ARE RESPONSIBLE FOR PLANNING AND
MONITORING ALL REGIONAL OPERATIONS. THE OFFICES ARE CONCERNED PRIMARILY
WITH MATTERS REGARDING PLANNING, ADMINISTRATION, CONTRACT COMPLIANCE AND
SECURITY PROBLEMS AND THE DIRECTORATES OVERSEE MATTERS REGARDING
CONTRACT ADMINISTRATION, PRODUCTION, AND QUALITY ASSURANCE.
PRIOR TO THE REORGANIZATION OF NOVEMBER 1, 1976, THERE WERE TWO
DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICTS (DCASD) WITHIN THE
DCASR, BOSTON. THEY WERE THE DCASD, ROCHESTER, AND THE DCASD, HARTFORD,
/3/ THE SUBJECT OF THE INSTANT PETITIONS. THE DCASD, HARTFORD,
ENCOMPASSED A GEOGRAPHIC AREA WHICH INCLUDED THE STATES OF CONNECTICUT
AND VERMONT, AND AREAS OF WESTERN MASSACHUSETTS AND EASTERN NEW YORK.
WITHIN THE DCASD, HARTFORD, WERE FOUR DEFENSE CONTRACT ADMINISTRATION
SERVICES OFFICES, (DCASO), INCLUDING AN AREA OFFICE AT BRIDGEPORT, WHICH
WAS WITHIN NAGE LOCAL R1-76'S UNIT, AND THREE OFFICES LOCATED AT PLANT
SITES-- DCASO, AVCO, AT STRATFORD CONNECTICUT, /4/ DCASO, HAMILTON
STANDARD, AT WINDSOR LOCKS, CONNECTICUT, /5/ AND DCASO, GENERAL
ELECTRIC, BURLINGTON, AT BURLINGTON, VERMONT.
SUBSEQUENT TO THE REORGANIZATION, THE RECORD REVEALS THAT THE DCASD,
HARTFORD, WAS DISESTABLISHED AND REPLACED BY THE TWO DCASMAS, HARTFORD
AND BRIDGEPORT. IN ADDITION, THE FORMER THREE-TIER CHAIN OF COMMAND--
(1) THE DCASR, (2) THE DCASD, AND (3) THE DCASO-- HAS BECOME A
TWO-TIERED ADMINISTRATIVE STRUCTURE CONSISTING OF THE DCASMA'S IN
HARTFORD AND BRIDGEPORT AND A DEFENSE CONTRACT ADMINISTRATION SERVICES
PLANT REPRESENTATIVE OFFICE (DCASPRO) IN THE GENERAL ELECTRIC PLANT IN
BURLINGTON, VERMONT, WHICH ALL REPORT DIRECTLY TO THE DCASR. /6/ THE
EVIDENCE INDICATES THAT THE DCASMA'S AND DCASPRO ARE, LIKE THE DCASR,
COMMANDED BY MILITARY OFFICERS, AND PERFORM ESSENTIALLY THE DAY-TO-DAY
OPERATIONS OF THE DCASR WITHIN THEIR ASSIGNED GEOGRAPHIC AREAS.
THE ACTIVITY-PETITIONER CONTENDS ESSENTIALLY THAT THE BARGAINING
UNITS SHOULD COINCIDE WITH THE STRUCTURE OF THE SECONDARY FIELD
ACTIVITIES, THE DCASMA, HARTFORD, AND THE DCASMA, BRIDGEPORT. THE NAGE
LOCALS R1-76 AND R1-181 DO NOT OBJECT TO THE UNIT DESCRIPTIONS AS
DEFINED BY THE DCASR. HOWEVER, THEY DISAGREE AS TO WHETHER NAGE LOCAL
R1-76 IS THE EXCLUSIVELY RECOGNIZED REPRESENTATIVE IN BOTH DCASMAS.
NAGE LOCAL R1-76 CONTENDS THAT ITS BARGAINING UNIT IS STILL APPROPRIATE,
THAT IT IS THE EXCLUSIVE REPRESENTATIVE OF BOTH DCASMAS AND THAT NAGE
LOCAL R1-181 HAS LOST ITS SEPARATE IDENTITY AT AVCO. ON THE OTHER HAND,
NAGE LOCAL R1-181 ARGUES THAT IT STILL MAINTAINS THE SUPPORT OF A
MAJORITY OF DCASMA, BRIDGEPORT, EMPLOYEES AND SHOULD CONTINUE TO
REPRESENT THEM.
CASE NO. 31-10642(RA)
THE RECORD REVEALS THAT, AS A RESULT OF THE REORGANIZATION, THERE HAS
BEEN A SUBSTANTIAL DECREASE IN BOTH PERSONNEL AND THE GEOGRAPHIC AREA OF
RESPONSIBILITY FOR THE FORMER DCASD, HARTFORD, NOW DCASMA, HARTFORD,
WITH A CORRESPONDING TRANSFER OF PERSONNEL AND GEOGRAPHIC RESPONSIBILITY
TO THE DCASMA, BRIDGEPORT. PRIOR TO NOVEMBER 1, 1976, DCASD, HARTFORD,
EMPLOYED APPROXIMATELY 690 PERSONS. /7/ SUBSEQUENT TO THE
REORGANIZATION, APPROXIMATELY 384 EMPLOYEES REMAIN AT THE DCASMA,
HARTFORD, AND APPROXIMATELY 201 EMPLOYEES ARE NOW EMPLOYED BY THE
DCASMA, BRIDGEPORT. IN ADDITION, THE RECORD SHOWS THAT THE DCASMA,
BRIDGEPORT, NOW HAS THE RESPONSIBILITY FOR CONTRACT ADMINISTRATION IN
SOUTHERN CONNECTICUT AND ADDED RESPONSIBILITIES IN CONTRACT EMPLOYMENT
COMPLIANCE AND IN INDUSTRIAL SECURITY WHICH THE FORMER BRIDGEPORT AREA
OFFICE DID NOT HAVE.
WITH RESPECT TO THE MISSION AND DUTIES PERFORMED BY THE DCASMA,
HARTFORD, EMPLOYEES, THE RECORD REFLECTS THAT THE REORGANIZATION HAS
NOT, EXCEPT FOR THE CHANGE IN ITS GEOGRAPHIC AREA OF RESPONSIBILITY,
ESSENTIALLY ALTERED EITHER THE MISSION OR TYPE OF DUTIES PERFORMED.
THOSE EMPLOYEES PREVIOUSLY EMPLOYED AT THE HARTFORD OFFICE, FOR THE MOST
PART, REMAIN IN THE SAME LOCATION AND CONTINUE TO PERFORM THE SAME
DUTIES UNDER THE SAME IMMEDIATE SUPERVISORS. FURTHER, THEY ARE SUBJECT
TO THE SAME PERSONNEL POLICIES AND PRACTICES ESTABLISHED BY THE DCASR,
BOSTON, SUCH AS PROMOTIONS, CLASSIFICATIONS AND TRAINING, AND THERE HAVE
NOT BEEN SIGNIFICANT CHANGES IN THE AREA OF CONSIDERATION FOR PROMOTIONS
AND THE COMPETITIVE AREAS FOR REDUCTION-IN-FORCE PROCEDURES. MOREOVER,
THE RECORD INDICATES THAT UNDER DCASMA, HARTFORD, BARGAINING UNIT
EMPLOYEES CONTINUE TO BE SERVICED BY THE DCASR PERSONNEL OFFICE
CONCERNING PERSONNEL MATTERS /8/ AND PRIMARY RESPONSIBILITY AND GUIDANCE
IN LABOR RELATIONS MATTERS CONTINUE TO FLOW FROM THE DCASR HEADQUARTERS.
HOWEVER, THE RECORD REFLECTS THAT WHILE DCASR, BOSTON, PROVIDES
GUIDANCE ON LABOR RELATIONS POLICY AND PROVIDES SECTION 15 APPROVAL OF
ALL NEGOTIATED AGREEMENTS, DCASMA AND DCASPRO COMMANDERS HAVE BEEN
DELEGATED CONSIDERABLE AUTHORITY FOR ADMINISTERING LABOR RELATIONS
POLICIES WITHIN THEIR COMMANDS AND ARE FREE TO NEGOTIATE AGREEMENTS AND
CONSULT WITH THE EXCLUSIVE BARGAINING REPRESENTATIVE.
UNDER ALL OF THE ABOVE CIRCUMSTANCES, I FIND THAT THE RA PETITION IN
CASE NO. 31-10642(RA) WHICH SEEKS AN ELECTION IN THE DCASMA, HARTFORD,
SHOULD BE DISMISSED. SUBSEQUENT TO THE REORGANIZATION, THE DCASMA,
HARTFORD, EMPLOYEES REMAINING FROM THE DCASD, HARTFORD, CONTINUE IN
GENERAL, TO FULFILL THE SAME DUTIES WITH NO SUBSTANTIAL CHANGE IN JOB
FUNCTIONS, IMMEDIATE SUPERVISION, OR TERMS AND CONDITIONS OF EMPLOYMENT
AS THE FORMER DCASD, HARTFORD, EMPLOYEES. THUS, I FIND THAT THE FORMER,
DCASD, HARTFORD, UNIT, EXCLUSIVELY REPRESENTED BY THE NAGE LOCAL R1-76,
ALTHOUGH DIMINISHED, IN PART, BY THE LOSS OF SOME FORMER UNIT EMPLOYEES,
AND GEOGRAPHIC RESPONSIBILITY, CONTINUES AS DCASMA, HARTFORD, TO REMAIN
AN IDENTIFIABLE AND VIABLE BARGAINING UNIT WITH A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST. ADDITIONALLY, I FIND THAT SUCH A UNIT WILL
CONTINUE TO PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS BY ESTABLISHING A UNIT STRUCTURE WHICH COINCIDES WITH THE
ACTIVITY'S COMMAND STRUCTURE AND WHICH CONSTITUTES THE LEVEL AT WHICH
AGREEMENTS MAY BE NEGOTIATED, THUS ESTABLISHING CLEAR PARAMETERS FOR
NEGOTIATIONS. ACCORDINGLY, I FIND THAT THE NAGE LOCAL R1-76'S UNIT
LOCATED IN THE DCASMA, HARTFORD, REMAINS APPROPRIATE, ALBEIT REDUCED,
AND, THEREFORE, I SHALL ORDER THAT THE INSTANT RA PETITION BE DISMISSED.
/9/
CASE NO. 31-10651(RA)
THE EVIDENCE ESTABLISHES THAT, PURSUANT TO THE REORGANIZATION, THE
FORMER DCASO, BRIDGEPORT, WAS ASSIGNED ADDITIONAL PERSONNEL AND
RESPONSIBILITIES AND WAS REDESIGNATED AS THE DCASMA, BRIDGEPORT, UNDER A
COMMANDER REPORTING DIRECTLY TO THE DCASR, BOSTON. THE RECORD FURTHER
REVEALS THAT THE DCASMA, BRIDGEPORT, PHYSICALLY MOVED TO THE OFFICES OF
THE DCASO, AVCO, WHICH WAS DISESTABLISHED. THE RESULT OF THIS CHANGE
WAS THAT THE EMPLOYEES OF DCASO, AVCO, BRIDGEPORT, FORMERLY REPRESENTED
BY NAGE LOCAL R1-76, NOW SHARE COMMON SUPERVISION AND HAVE BECOME SO
PHYSICALLY INTERMINGLED IN THE NEWLY ESTABLISHED DCASMA, BRIDGEPORT,
(NOW LOCATED AT AVCO) THAT NEITHER THE DCASO, AVCO, UNIT NOR THE DCASO,
BRIDGEPORT, UNIT IS SEPARATELY APPROPRIATE.
ALL OF THE EMPLOYEES OF THE DCASMA, BRIDGEPORT, PERFORM THEIR DUTIES
PURSUANT TO POLICIES AND PROCEDURES ESTABLISHED BY THE DCASR, BOSTON,
AND UNDER A COMMANDER WHOSE AUTHORITY IS CO-EQUAL TO THAT OF THE
COMMANDER, DCASMA, HARTFORD. THEY ARE SERVICED BY THE DCASR PERSONNEL
OFFICE AND GUIDANCE IN LABOR RELATIONS MATTERS IS SIMILARLY PROVIDED BY
REGIONAL HEADQUARTERS. THE DCASMA, BRIDGEPORT, COMMANDER HAS, AS DOES
HIS DCASMA, HARTFORD, COUNTERPART, THE AUTHORITY TO NEGOTIATE AGREEMENTS
WITH THE EXCLUSIVE BARGAINING REPRESENTATIVE, SUBJECT TO SECTION 15
APPROVAL AT THE DCASR. THE RECORD REFLECTS THAT THERE IS NO EVIDENCE OF
ANY DEGREE OF INTERCHANGE BETWEEN EMPLOYEES OF THE DCASMA, BRIDGEPORT,
AND OTHER COMMANDS WITHIN THE DCASR AND THAT CERTAIN OF THE EMPLOYEES OF
THE NEWLY ESTABLISHED DCASMA HAVE CHANGED AREAS OF CONSIDERATION FOR
PROMOTION AND REDUCTION-IN-FORCE PROCEDURES COINCIDING WITH THE NEW
ADMINISTRATIVE ORGANIZATION. MOREOVER, THE EVIDENCE ESTABLISHES THAT
THE BRIDGEPORT EMPLOYEES ENJOY COMMON SUPERVISION, ARE SUBJECT TO THE
SAME PERSONNEL POLICIES AND SIMILAR WORKING CONDITIONS, AND PERFORM
THEIR DUTIES WITHIN THE SAME GEOGRAPHIC AREA. UNDER THESE
CIRCUMSTANCES, I FIND THAT THE EMPLOYEES OF DCASMA, BRIDGEPORT, SHARE A
CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM
OTHER EMPLOYEES OF DCASR, BOSTON.
FURTHER, I FIND THAT THE PETITIONED FOR UNIT FOR ALL THE DCASMA,
BRIDGEPORT, EMPLOYEES WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS BY REDUCING UNIT FRAGMENTATION AND BY ESTABLISHING A
BARGAINING UNIT WHICH COINCIDES WITH THE ACTIVITY'S ORGANIZATIONAL
STRUCTURE AND WHICH CONSTITUTES THE LEVEL AT WHICH AGREEMENTS MAY BE
NEGOTIATED. ADDITIONALLY, THE PETITIONED FOR UNIT WOULD FOSTER A BETTER
BARGAINING RELATIONSHIP BY ENABLING THE COMMANDER, DCASMA, BRIDGEPORT,
WHO IS RESPONSIBLE FOR THE NEGOTIATIONS OF AGREEMENTS IN THE DCASMA, TO
ADMINISTER A SINGLE NEGOTIATED AGREEMENT AND TO NEGOTIATE WITH A SINGLE
LABOR ORGANIZATION.
BASED ON THE FOREGOING, I FIND THAT THE FOLLOWING EMPLOYEES OF THE
ACTIVITY-PETITIONER MAY CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION UNDER EXECUTIVE ORDER 11491, AS AMENDED:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES, OF DCASMA,
BRIDGEPORT, EXCLUDING MANAGEMENT
OFFICIALS, CONFIDENTIAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, 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 GROUPS:
VOTING GROUP (1): ALL PROFESSIONAL EMPLOYEES OF THE DCASMA,
BRIDGEPORT, EXCLUDING ALL NONPROFESSIONAL EMPLOYEES, MANAGEMENT
OFFICIALS, CONFIDENTIAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND SUPERVISORS
AS DEFINED IN THE ORDER.
VOTING GROUP (B): ALL NONPROFESSIONAL EMPLOYEES OF THE DCASMA,
BRIDGEPORT, EXCLUDING ALL PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS,
CONFIDENTIAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, AND SUPERVISORS AS DEFINED IN THE
ORDER.
EMPLOYEES IN THE NONPROFESSIONAL VOTING GROUP (B) WILL BE POLLED
WHETHER THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION BY LOCAL R1-76, NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES; BY LOCAL R1-181, NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES; OR BY NEITHER OF THESE LABOR ORGANIZATIONS.
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 THEY WISH TO BE REPRESENTED FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION BY LOCAL R1-76, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES; BY LOCAL R1-181, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES; OR BY NEITHER OF THESE LABOR ORGANIZATIONS. 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 AREA ADMINISTRATOR
INDICATING WHETHER LOCAL R1-76, NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES; LOCAL R1-181, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES;
OR NEITHER OF THESE LABOR ORGANIZATIONS WAS SELECTED BY THE PROFESSIONAL
EMPLOYEE UNIT.
THE UNIT DETERMINATION IN THE SUBJECT CASE IS BASED, IN PART, THEN,
UPON THE RESULTS OF 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 DOES NOT VOTE FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THE
FOLLOWING UNITS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
WITHIN THE MEANING OF SECTION 10 OF THE ORDER:
(A) ALL PROFESSIONAL EMPLOYEES OF THE DCASMA, BRIDGEPORT, EXCLUDING
ALL NONPROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, CONFIDENTIAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, AND SUPERVISORS AS DEFINED IN THE ORDER.
(B) ALL NONPROFESSIONAL EMPLOYEES OF THE DCASMA, BRIDGEPORT,
EXCLUDING ALL PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, CONFIDENTIAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, 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 DCASMA,
BRIDGEPORT, EXCLUDING
MANAGEMENT OFFICIALS, CONFIDENTIAL EMPLOYEES, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, AND SUPERVISORS AS DEFINED IN
THE ORDER.
ORDER
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 31-10642(RA) BE,
AND IT HEREBY IS, DISMISSED.
DIRECTION OF ELECTION
AN ELECTION 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 SHALL VOTE WHETHER THEY DESIRE
TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY LOCAL
R1-76, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES; BY LOCAL R1-181,
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES; OR BY NEITHER OF THESE
LABOR ORGANIZATION.
DATED, WASHINGTON, D.C.
SEPTEMBER 22, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
1906, HEREINAFTER CALLED AFGE LOCAL 1906, PETITIONED FOR AN ELECTION
(CASE NO. 31-10614(RO)) IN A UNIT OF NUCLEAR CORE DIVISION EMPLOYEES OF
THE QUALITY ASSURANCE DIRECTORATE OF THE DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION, BOSTON, MASSACHUSETTS, WHICH CASE WAS ORIGINALLY
CONSOLIDATED FOR HEARING WITH THE ABOVE NUMBERED RA PETITIONS. PRIOR TO
THE HEARING, AFGE LOCAL 1906 AND THE ACTIVITY ENTERED INTO A CONSENT
AGREEMENT FOR AN ELECTION AND THE CASE WAS SEVERED FROM THE HEARING IN
THIS MATTER.
/2/ THE ACTIVITY-PETITIONER CONTENDS THAT THE APPROPRIATE UNITS ARE
AS FOLLOWS:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE DEFENSE
CONTRACT ADMINISTRATION
SERVICES MANAGEMENT AREA (DCASMA), HARTFORD, CONNECTICUT, EXCLUDING
MANAGEMENT OFFICIALS,
CONFIDENTIAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY
CLERICAL CAPACITY AND SUPERVISORS AS DEFINED IN THE ORDER.
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE DEFENSE
CONTRACT ADMINISTRATION
SERVICES MANAGEMENT AREA (DCASMA), BRIDGEPORT, CONNECTICUT, EXCLUDING
MANAGEMENT OFFICIALS,
CONFIDENTIAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY
CLERICAL CAPACITY AND SUPERVISORS AS DEFINED IN THE ORDER.
/3/ THE RECORD REVEALS THAT ON JANUARY 11, 1968, THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-76, HEREINAFTER CALLED
NAGE LOCAL R1-76, WAS RECOGNIZED AS THE EXCLUSIVE REPRESENTATIVE FOR A
UNIT OF ALL ELIGIBLE NONPROFESSIONAL EMPLOYEES UNDER THE JURISDICTION OF
DCASD, HARTFORD, WITH THE EXCEPTION OF DCASO, AVCO, REPRESENTED BY NAGE
LOCAL R1-181, AND A DCASO, AT THE HAMILTON STANDARD FACILITIES
REPRESENTED SINCE OCTOBER 1971, BY AFGE LOCAL 1906. THE RECORD REFLECTS
THAT THE PARTIES HAVE ENTERED INTO NEGOTIATED AGREEMENTS IN THE PAST AND
THAT A NEW AGREEMENT IS AWAITING RENEGOTIATION PENDING THE DISPOSITION
OF THE INSTANT CASE. IN ADDITION, PRIOR TO THE REORGANIZATION, THE
DCASD, HARTFORD, INCLUDED THE DCASO, GENERAL ELECTRIC, BURLINGTON,
REPRESENTED EXCLUSIVELY BY NAGE LOCAL R1-170 SINCE 1969.
/4/ AS INDICATED ABOVE, THE RECORD REFLECTS THAT ON NOVEMBER 5, 1969,
NAGE LOCAL R1-181 WAS GRANTED EXCLUSIVE RECOGNITION FOR A UNIT OF ALL
ELIGIBLE EMPLOYEES OF DCASO, AVCO, AND THAT IT HAS A CURRENTLY EFFECTIVE
NEGOTIATED AGREEMENT WITH THE ACTIVITY COVERING THE UNIT EMPLOYEES.
/5/ THE RECORD INDICATES THAT PURSUANT TO THE REORGANIZATION, THE
DCASO, HAMILTON STANDARD, IS NO LONGER AN INDEPENDENT ENTITY BUT IS NOW
ONLY A RESIDENT BRANCH OF DCASMA, HARTFORD. ALL OF THE EMPLOYEES EXCEPT
THE CHIEF AND HIS SECRETARY, REMAIN AT THE SAME DUTY STATIONS PERFORMING
THE SAME DUTIES; HOWEVER, THE CHIEFS OF EACH OF THE THREE FUNCTIONAL
ENTITIES OF QUALITY ASSURANCE, PRODUCTION SUPPORT AND CONTRACT
ADMINISTRATION NOW REPORT TO THEIR RESPECTIVE DCASMA DIVISION CHIEF IN
HARTFORD. THE DCASR HAD FILED AN RA PETITION FOR THE HAMILTON STANDARD
UNIT IN VIEW OF THE REORGANIZATION; HOWEVER, THE PETITION WAS SEVERED
FROM THE INSTANT PROCEEDING PENDING THE DISPOSITION OF A UNIT
CONSOLIDATION PETITION FILED BY THE AFGE FOR ALL ITS UNITS IN DCASR,
BOSTON.
/6/ AS THE DCASPRO, GENERAL ELECTRIC, BURLINGTON, IS INDEPENDENT OF
THE TWO DCAMAS AND REPORTS DIRECTLY TO THE DCASR, BOSTON, IT WAS NOT
MADE SUBJECT TO THE INSTANT RA PETITIONS.
/7/ PRIOR TO THE REORGANIZATION, DCASD, HARTFORD, WAS COMPRISED OF 11
MILITARY OFFICERS AND SOME 679 CIVILIAN EMPLOYEES WHO WERE EMPLOYED AS
FOLLOWS:
HARTFORD OFFICE - 478 EMPLOYEES
DCASO, BRIDGEPORT - 160 EMPLOYEES
DCASO, AVCO - 46 EMPLOYEES
DCASO, HAMILTON STANDARD - 34 EMPLOYEES
DCASO, G.E. BURLINGTON - 22 EMPLOYEES
/8/ THERE IS AN INDIVIDUAL PERSONNEL SPECIALIST ASSIGNED TO HANDLE
PERSONNEL MATTERS FOR ALL OF THE DCASR SECONDARY FIELD ACTIVITIES BUT NO
ON-SITE PERSONNEL OFFICE EXCEPT AT REGIONAL HEADQUARTERS.
/9/ WHILE IT HAS BEEN FOUND THAT THE EXCLUSIVELY RECOGNIZED UNIT
HEREIN CONTINUED, AFTER THE REORGANIZATION, TO REMAIN APPROPRIATE FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION, IT IS NOTED THAT SUCH A FINDING
WOULD NOT PRECLUDE THE FILING OF AN APPROPRIATE PETITION FOR AMENDMENT
OF RECOGNITION IN ORDER TO CONFORM THE RECOGNITION TO THE EXISTING
CIRCUMSTANCES.
7 A/SLMR 904; P. 815; CASE NO. 31-9957(AC); SEPTEMBER 21, 1977.
SEPTEMBER 21, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER AMENDING CERTIFICATION
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
UNITED STATES DEPARTMENT OF DEFENSE,
3245TH AIRBASE GROUP, UNITED STATES
AIR FORCE
A/SLMR NO. 904
THIS CASE INVOLVED A PETITION FOR AMENDMENT OF CERTIFICATION (AC)
FILED BY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, PROFESSIONAL
LOCAL 1384 (PETITIONER) SEEKING TO AMEND ITS CERTIFICATION TO REFLECT
THE RESULT OF A REORGANIZATION. THE REORGANIZATION, EFFECTED BY THE AIR
FORCE SYSTEMS COMMAND, ESSENTIALLY REMOVED TWO DIVISIONS INTACT FROM THE
AIR FORCE CAMBRIDGE RESEARCH LABORATORY AND CREATED THE DEPUTY FOR
ELECTRONIC TECHNOLOGY, PLACING IT UNDER DIFFERENT FIRST LINE OPERATIONAL
DIRECTION. THE REMAINING DIVISIONS BECAME THE AIR FORCE GEOPHYSICS
LABORATORY. THE PETITIONER CLAIMED THAT THE REORGANIZATION HAD NO MORE
EFFECT ON ITS EXCLUSIVE UNIT OTHER THAN TO REQUIRE A CHANGE IN ITS UNIT
DESIGNATION FROM AIR FORCE CAMBRIDGE RESEARCH LABORATORY TO DEPUTY FOR
ELECTRONIC TECHNOLOGY AND AIR FORCE GEOPHYSICS LABORATORY.
THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-8 (NAGE)
AND THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 975 (NFFE)
INTERVENED IN THE PROCEEDING CONTENDING THAT CERTAIN OF THE EMPLOYEES OF
THE PETITIONER'S UNIT ACCRETED TO THEIR UNITS AS A RESULT OF THE
REORGANIZATION. THE ACTIVITY EXPRESSED NO OBJECTIONS TO THE AMENDMENT
SOUGHT BY THE PETITIONER.
THE ASSISTANT SECRETARY AGREED WITH THE AMENDMENT SOUGHT BY THE
PETITIONER. THUS, HE FOUND THAT THE EMPLOYEES OF THE TWO ORGANIZATIONAL
ENTITIES CONTINUED AFTER THE REORGANIZATION TO SHARE A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM OTHER
EMPLOYEES OF THE ACTIVITY. IN THIS REGARD, HE NOTED THAT SUBSEQUENT TO
THE REORGANIZATION THE EMPLOYEES OF BOTH ORGANIZATIONS CONTINUED TO
PERFORM THE SAME JOB FUNCTIONS, PURSUANT TO THE SAME MISSION, IN THE
SAME LOCATION, WITH NO SUBSTANTIAL CHANGE IN WORKING CONDITIONS,
IMMEDIATE SUPERVISION, JOB CONTACT OR PERSONNEL POLICIES. FURTHER BOTH
ORGANIZATIONS CONTINUED UNDER THE SAME OVERALL OPERATIONAL COMMAND AND
ENJOY A DEGREE OF INTERCHANGE OF EMPLOYEES AS A RESULT OF AN
ADMINISTRATIVE MEMORANDUM PROVIDING FOR THE EXCHANGE OF SERVICES.
MOREOVER, HE FOUND THAT THE EXISTING BARGAINING UNIT CONTINUED TO
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS AS THE
EMPLOYEES CONTINUED TO ENJOY COMMON PERSONNEL POLICIES AND PRACTICES AND
THE SAME AREAS OF CONSIDERATION FOR REDUCTIONS-IN-FORCE AND PROMOTIONS,
AND THE ACTIVITY COMMANDER CONTINUED TO EXERCISE SUBSTANTIAL AUTHORITY
FOR LABOR RELATIONS AND PERSONNEL MATTERS AFFECTING SUCH EMPLOYEES.
ACCORDINGLY, AND NOTING THE LONG HISTORY OF EFFECTIVE LABOR RELATIONS
IN THE UNIT, AS WELL AS THE FACT THE ACTIVITY DID NOT OPPOSE THE
AMENDMENT SOUGHT BY THE PETITIONER, THE ASSISTANT SECRETARY FOUND THAT
THE UNIT CERTIFICATION SHOULD BE AMENDED TO REFLECT THE CHANGE IN
DESIGNATION SOUGHT BY THE PETITIONER.
UNITED STATES DEPARTMENT OF DEFENSE,
3245TH AIRBASE GROUP, UNITED STATES
AIR FORCE /1/
ACTIVITY
CASE NO. 31-9957(AC)
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, PROFESSIONAL LOCAL 1384 /2/
PETITIONER
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 975
INTERVENOR
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R1-8
INTERVENOR
DECISION AND ORDER AMENDING CERTIFICATION
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER WILLIAM KOFFEL.
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
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, PROFESSIONAL LOCAL 1384,
HEREIN CALLED THE PETITIONER, THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 975, HEREIN CALLED NFFE, AND THE NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES, LOCAL R1-8, HEREIN CALLED NAGE, THE ASSISTANT
SECRETARY FINDS:
THE PETITIONER FILED THE SUBJECT PETITION SEEKING TO AMEND ITS
CERTIFICATION TO REFLECT THE RESULT OF A REORGANIZATION AFFECTING ITS
UNIT, WHICH IT MAINTAINED WAS MERELY A CHANGE IN THE UNIT DESIGNATION
FROM "AIR FORCE CAMBRIDGE RESEARCH LABORATORY" TO "AIR FORCE GEOPHYSICS
LABORATORY AND DEPUTY FOR ELECTRONIC TECHNOLOGY." /3/ THE NAGE AND THE
NFFE INTERVENED, CONTENDING THAT CERTAIN OF THE EMPLOYEES IN THE
PETITIONER'S UNIT, AS A CONSEQUENCE OF THE REORGANIZATION, ACCRETED TO
THEIR RESPECTIVE UNITS. /4/ THE ACTIVITY, WHILE REMAINING NEUTRAL AT
THE HEARING, TOOK THE POSITION THAT IT HAD NO OBJECTION TO THE AMENDMENT
SOUGHT BY THE PETITIONER.
THE HANSCOM AIR FORCE BASE COMPLEX (COMPLEX), WHERE THE UNIT IN
QUESTION IS LOCATED, IS UNDER THE ADMINISTRATIVE DIRECTION OF THE
COMMANDING OFFICER OF THE 3245TH AIR BASE GROUP. THE LATTER IS UNDER
THE OPERATIONAL DIRECTION OF THE COMMANDING OFFICER OF THE ELECTRONIC
SYSTEMS DIVISION (ESD), WHICH IS THE MAJOR COMPONENT OF THE COMPLEX.
PRIOR TO JANUARY 1, 1976, THE AIR FORCE CAMBRIDGE RESEARCH LABORATORY
(AFCRL), WHICH WAS UNDER THE OVERALL SUPERVISION OF THE AIR FORCE
SYSTEMS COMMAND, WAS THE OTHER MAJOR COMPONENT OF THE HANSCOM COMPLEX,
EMPLOYING APPROXIMATELY 1000 OF THE 2800 CIVILIAN EMPLOYEES LOCATED AT
THE COMPLEX. WHILE BOTH THE ESD AND THE AFCRL WERE UNDER THE
OPERATIONAL COMMAND OF THE AIR FORCE SYSTEMS COMMAND, THE RECORD
REFLECTS THAT THERE WAS LITTLE OR NO INTERACTION OR JOB CONTACT BETWEEN
EMPLOYEES OF THE ESD AND THE AFCRL WITH RESPECT TO THEIR MISSIONS OR
DAY-TO-DAY ACTIVITIES. IN THIS REGARD, THE PRIMARY MISSION OF THE AFCRL
WAS BASIC RESEARCH, WHILE THE MISSION OF THE ESD IS THE DEVELOPMENT AND
IMPLEMENTATION OF TECHNOLOGICAL SYSTEMS FOR THE AIR FORCE.
EFFECTIVE JANUARY 1, 1976, TWO DIVISIONS OF THE AFCRL, WHICH EMPLOY
APPROXIMATELY 200 EMPLOYEES, WERE REDESIGNATED AS THE DEPUTY FOR
ELECTRONIC TECHNOLOGY (DET) BY THE AIR FORCE SYSTEMS COMMAND, AND WERE
ASSIGNED TO THE OPERATIONAL COMMAND OF THE ROME AIR DEVELOPMENT CENTER
(RADC) LOCATED AT GRIFFISS AIR FORCE BASE, NEW YORK. /5/ THE PURPOSE OF
THE REDESIGNATION WAS TO PLACE THE TWO DIVISIONS OF THE AFCRL INVOLVED
PRIMARILY IN COMMAND CONTROL AND COMMUNICATION DEVELOPMENT AND
APPLICATION RESEARCH UNDER THE DIRECTION OF THE RADC, WHICH HAS THIS
TECHNOLOGICAL AREA AS ITS PRIMARY MISSION. IN ADDITION, EFFECTIVE
JANUARY 15, 1976, THE REMAINING DIVISIONS OF THE AFCRL WERE REDESIGNATED
AS THE AIR FORCE GEOPHYSICS LABORATORY (AFGL), WHICH CONTINUED UNDER THE
SAME OPERATIONAL COMMAND.
THE RECORD REFLECTS THAT THE ONLY CHANGE RESULTING FROM THE JANUARY 1
AND 15 REDESIGNATIONS WAS THAT THE DET AND THE AFGL NOW REPORT TO THE
AIR FORCE SYSTEMS COMMAND THROUGH DIFFERENT OPERATIONAL CHAINS OF
COMMAND, AND THAT THERE WAS LITTLE CHANGE IN THEIR DAY-TO-DAY
ACTIVITIES. THUS, ALL OF THE EMPLOYEES OF BOTH THE DET AND THE AFGL
CONTINUE, AFTER THEIR RESPECTIVE REDESIGNATIONS, TO PERFORM THE SAME
WORK, IN THE SAME LOCATION, UNDER THE SAME SUPERVISION, AND CONTINUE TO
HAVE LITTLE JOB RELATED CONTACT WITH OTHER COMPLEX EMPLOYEES. MOST OF
THE EMPLOYEES OF THE DET AND AFGL WORK IN THE SAME BUILDINGS AND USE THE
SAME LABORATORY FACILITIES, WHICH ARE SEPARATED FROM OTHER FACILITIES OF
THE HANSCOM COMPLEX. MOREOVER, THROUGH A MEMORANDUM SIGNED BY BOTH THE
DET DIRECTOR AND THE AFGL DIRECTOR, AT THE DIRECTION OF THE AIR FORCE
SYSTEMS COMMAND, THE AFGL AGREED TO PROVIDE THE NECESSARY LABORATORY
SUPPORT SERVICES TO THE DET IN RETURN FOR THE DET PROVIDING THE AFGL
WITH CERTAIN MANPOWER.
IN ADDITION, THE RECORD REVEALS THAT, AFTER THE REDESIGNATIONS, THE
COMPLEX COMMANDER CONTINUES TO EXERCISE FULL AUTHORITY FOR PERSONNEL AND
RELATED ADMINISTRATIVE SERVICES PROVIDED TO THE DET AND AFGL THROUGH THE
CENTRAL CIVILIAN PERSONNEL OFFICE LOCATED AT THE COMPLEX, INCLUDING THE
AUTHORITY UNDER AIR FORCE REGULATIONS FOR THE NEGOTIATION OF
LABOR-MANAGEMENT AGREEMENTS, AND ACTING AS THE FINAL STEP IN ANY
NEGOTIATED GRIEVANCE PROCEDURE. FURTHER, THE AREA OF CONSIDERATION FOR
BOTH REDUCTIONS-IN-FORCE AND MERIT PROMOTIONS FOR EMPLOYEES OF BOTH THE
DET AND THE AFGL CONTINUES TO BE BASE-WIDE UNDER CURRENT AIR FORCE
REGULATIONS.
BASED ON ALL THE FOREGOING CIRCUMSTANCES, I FIND THAT THE EMPLOYEES
OF THE DET AND THE AFGL CONTINUE, AFTER THE ADMINISTRATIVE
REORGANIZATION, TO SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
SEPARATE AND DISTINCT FROM OTHER EMPLOYEES OF THE COMPLEX. THUS, THE
EVIDENCE ESTABLISHES THAT SUBSEQUENT TO THE REORGANIZATION THE EMPLOYEES
OF BOTH ORGANIZATIONS CONTINUED TO PERFORM THE SAME JOB FUNCTIONS,
PURSUANT TO THE SAME MISSION, IN THE SAME LOCATION, WITH NO SUBSTANTIAL
CHANGE IN THEIR WORKING CONDITIONS, IMMEDIATE SUPERVISION AND JOB
CONTACTS OR PERSONNEL POLICIES. IN ADDITION, AS A CONSEQUENCE OF THE
MEMORANDUM SIGNED BY BOTH ORGANIZATIONS, THERE IS A DEGREE OF
INTERCHANGE OF PERSONNEL BETWEEN THE DET AND THE AFGL AND BOTH THE DET
AND THE AFGL CONTINUED, SUBSEQUENT TO THE REORGANIZATION, UNDER THE SAME
OVERALL OPERATIONAL COMMAND.
MOREOVER, I FIND THAT THE EXISTING BARGAINING UNIT CONTINUES TO
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. THUS,
ALL UNIT EMPLOYEES CONTINUE TO ENJOY COMMON PERSONNEL POLICIES AND
PRACTICES, THE SAME AREA OF CONSIDERATION FOR BOTH REDUCTIONS-IN-FORCE
AND PROMOTIONS, AND THE COMPLEX COMMANDER CONTINUES TO EXERCISE
SUBSTANTIAL AUTHORITY FOR LABOR RELATIONS AND PERSONNEL MATTERS
AFFECTING SUCH EMPLOYEES.
ACCORDINGLY, AND NOTING ALSO THE LONG HISTORY OF EFFECTIVE LABOR
RELATIONS IN THE UNIT, AS WELL AS THE POSITION OF THE ACTIVITY, WHICH IS
NOT IN OPPOSITION TO THE AMENDMENT SOUGHT HEREIN, I FIND THAT THE
PETITIONER'S EXISTING CERTIFICATION SHOULD BE AMENDED TO INCLUDE ALL
NONSUPERVISORY PROFESSIONAL AND NONPROFESSIONAL GENERAL SCHEDULE
EMPLOYEES OF THE DEPUTY FOR ELECTRONIC TECHNOLOGY AND THE AIR FORCE
GEOPHYSICS LABORATORY SERVICED BY THE CENTRAL CIVILIAN PERSONNEL OFFICE,
HANSCOM AIR FORCE BASE, BEDFORD, MASSACHUSETTS.
ORDER
IT IS HEREBY ORDERED THAT THE UNIT DESCRIPTION SOUGHT TO BE AMENDED
HEREIN FOR WHICH THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
PROFESSIONAL LOCAL 1384 WAS CERTIFIED AS EXCLUSIVE REPRESENTATIVE ON
OCTOBER 8, 1970, BE, AND IT HEREBY IS, AMENDED TO READ: ALL
PROFESSIONAL AND NONPROFESSIONAL GENERAL SCHEDULE EMPLOYEES OF THE
DEPUTY FOR ELECTRONIC TECHNOLOGY AND THE AIR FORCE GEOPHYSICS LABORATORY
SERVICED BY THE CENTRAL CIVILIAN PERSONNEL OFFICE, HANSCOM AIR FORCE
BASE, BEDFORD, MASSACHUSETTS, EXCLUDING MANAGEMENT OFFICIALS, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, SECURITY GUARDS AND SUPERVISORS AS DEFINED IN THE ORDER.
DATED, WASHINGTON, D.C.
SEPTEMBER 21, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE NAME OF THE PETITIONER APPEARS AS AMENDED AT THE HEARING.
/3/ THE UNIT FOR WHICH THE PETITIONER WAS CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE ON OCTOBER 8, 1970, INCLUDED: "ALL NONSUPERVISORY
GENERAL SCHEDULE, AND NONSUPERVISORY PROFESSIONAL EMPLOYEES OF THE AIR
FORCE CAMBRIDGE RESEARCH LABORATORIES SERVICED BY THE CENTRAL CIVILIAN
PERSONNEL OFFICE, L.G. HANSCOM FIELD, BEDFORD, MASS.; EXCLUDING
MANAGEMENT OFFICIALS, SUPERVISORS, SECURITY GUARDS AND FEDERAL PERSONNEL
EMPLOYEES EXCEPT THOSE IN A PURELY CLERICAL CAPACITY."
/4/ THE NAGE IS THE EXCLUSIVE REPRESENTATIVE OF ALL WAGE GRADE
EMPLOYEES SERVICED BY THE CIVILIAN PERSONNEL OFFICE, HANSCOM AIR FORCE
BASE, AND ALL NONPROFESSIONAL GENERAL SCHEDULE EMPLOYEES SERVICED BY THE
CIVILIAN PERSONNEL OFFICE, HANSCOM AIR FORCE BASE, EXCLUDING THOSE
REPRESENTED BY THE PETITIONER. NFFE LOCAL 975 IS THE EXCLUSIVE
REPRESENTATIVE OF ALL PROFESSIONAL GENERAL SCHEDULE EMPLOYEES SERVICED
BY THE CIVILIAN PERSONNEL OFFICE, HANSCOM AIR FORCE BASE, EXCLUDING,
AMONG OTHERS, THOSE EMPLOYEES REPRESENTED BY THE PETITIONER.
/5/ THE RADC IS UNDER THE OPERATIONAL DIRECTION OF THE COMMANDING
OFFICER OF THE ESD AND UNDER THE ADMINISTRATIVE DIRECTION OF THE
COMMANDING OFFICER OF GRIFFISS AIR FORCE BASE.
7 A/SLMR 903; P. 807; CASE NO. 22-6417(CA); SEPTEMBER 21, 1977.
SEPTEMBER 21, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
DEPARTMENT OF DEFENSE
DEPENDENT SCHOOLS, EUROPE
A/SLMR NO. 903
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY DR.
HEIDEMARIE D. SHURTLEFF (COMPLAINANT) ALLEGING THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1) AND (2) OF THE ORDER BY DECLINING TO TRANSFER
THE COMPLAINANT TO A LOCATION COINCIDING WITH THAT OFFERED HER SPOUSE
(AN ADMINISTRATOR OF THE RESPONDENT) IN ORDER TO DISCOURAGE UNION
MEMBERSHIP AND AS A RESULT OF THE COMPLAINANT'S ACTIVITIES AS A UNION
OFFICER.
THE EVIDENCE DISCLOSED THAT AT THE TIME OF THE OFFER TO HER SPOUSE,
NO VACANCIES EXISTED FOR WHICH THE COMPLAINANT WAS QUALIFIED WITHIN
COMMUTING DISTANCE OF THE AREA WHERE HER HUSBAND WOULD HAVE BEEN
EMPLOYED. FURTHER, THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE ACTIVITY
OFFICIAL RESPONSIBLE FOR FINDING A TRANSFER POSITION FOR THE COMPLAINANT
HAD NO KNOWLEDGE OF HER UNION ACTIVITY. HE, THEREFORE, RECOMMENDED THAT
THE COMPLAINT BE DISMISSED.
NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE ASSISTANT
SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE
ADMINISTRATIVE LAW JUDGE AND ORDERED THAT THE COMPLAINT BE DISMISSED.
DEPARTMENT OF DEFENSE
DEPENDENTS SCHOOLS, EUROPE
RESPONDENT
CASE NO. 22-6417(CA)
AND
DR. HEIDEMARIE D. SHURTLEFF
COMPLAINANT
DECISION AND ORDER
ON JUNE 9, 1977, 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. NO EXCEPTIONS WERE FILED 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 THIS CASE, AND NOTING PARTICULARLY THAT
NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE ADMINISTRATIVE LAW JUDGE'S
FINDINGS, /1/ CONCLUSIONS AND RECOMMENDATIONS.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 22-6417(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 21, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ AT FOOTNOTE 2 ON PAGE 2 OF HIS RECOMMENDED DECISION AND ORDER,
THE ADMINISTRATIVE LAW JUDGE INADVERTENTLY REFERRED TO A SECTION 19(A)
ALLEGATION AS AN "8(A)(1)" ALLEGATION. FURTHER, AT PAGE 9, THE
ASSISTANT SECRETARY'S DECISION IN ENVIRONMENTAL PROTECTION AGENCY,
PERRINE PRIMATE LABORATORY, A/SLMR NO. 136, IS ADVERTENTLY CITED AS
A/SLMR NO. 133. SUCH INADVERTENT ERRORS ARE HEREBY CORRECTED.
IN THE MATTER OF
DEPARTMENT OF DEFENSE DEPENDENTS
SCHOOLS, EUROPE /1/
RESPONDENT
CASE NO. 22-6417(CA)
AND
DR. HEIDEMARIE D. SHURTLEFF,
COMPLAINANT
LYLE T. VENABLE
LABOR MANAGEMENT EMPLOYEES RELATIONS SPECIALIST
DEPARTMENT OF DEFENSE DEPENDENT SCHOOLS, EUROPE
DIRECTORATE
APO NEW YORK 09164
FOR THE RESPONDENT
ERNEST J. LEHMANN
OVERSEAS FEDERATION OF TEACHERS
VERONA AMERICAN SCHOOL
APO NEW YORK 09453
FOR THE COMPLAINANT
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON JULY 13, 1976
BY THE REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES
ADMINISTRATION OF THE U.S. DEPARTMENT OF LABOR, PHILADELPHIA REGION, A
HEARING WAS HELD BEFORE THE UNDERSIGNED ON NOVEMBER 8, 1976 AT SEMBACH,
GERMANY.
THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREIN CALLED THE ORDER) BY THE FILING OF A COMPLAINT ON OCTOBER 3,
1975 BY DR. HEIDEMARIE SHURTLEFF (HEREIN CALLED THE COMPLAINANT) AGAINST
DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS, EUROPE (HEREIN CALLED THE
RESPONDENT AND DODDSEUR). IT WAS ALLEGED THEREIN THAT RESPONDENT
DISCRIMINATED AGAINST COMPLAINANT AND VIOLATED SECTION 19(A)(2) OF THE
ORDER /2/ BY DECLINING TO TRANSFER HER TO A POSITION AS COUNSELOR OR
TEACHER TO A LOCATION COINCIDING WITH THAT OFFERED HER SPOUSE (WHO WAS
OFFERED A TRANSFER TO SCHWEINFURT AS AN ADMINISTRATOR WITH RESPONDENT) -
ALL IN ORDER TO DISCOURAGE UNION MEMBERSHIP AND AS A RESULT OF
COMPLAINANT'S ACTIVITIES AS A UNION VICE PRESIDENT.
RESPONDENT DENIES THE COMMISSIONS OF ANY UNFAIR LABOR PRACTICES UNDER
THE ORDER. IT CONTENDS THAT AT THE DATE DR. JOHN C. SHURTLEFF WAS
OFFERED A PROMOTION AND TRANSFER TO SCHWEINFURT, GERMANY, THERE WAS NO
AVAILABLE POSITION NEARBY FOR HIS WIFE, HEIDEMARIE SHURTLEFF.
ALL 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, BRIEFS WERE FILED WITH THE
UNDERSIGNED WHICH HAVE BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD IN THE CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
AT THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS:
FINDINGS OF FACT
1. DODDSEUR, WHICH IS COMPOSED OF FIVE DISTRICTS, IS UNDER THE
SUPERVISION OF A DIRECTORATE. DISTRICTS II, III, AND IV ARE LOCATED IN
GERMANY. THE DIRECTOR OF DODDSEUR AND HIS DEPUTY ARE RESPONSIBLE FOR
SELECTING THE ADMINISTRATION THROUGHOUT ALL DISTRICTS. A SUPERINTENDENT
DIRECTS EACH DISTRICT, AND HE IS RESPONSIBLE FOR THE SELECTION AND
REASSIGNMENT OF NON-ADMINISTRATIVE PERSONNEL, EDUCATORS AND COUNSELORS.
2. VARIOUS ELEMENTARY AND SECONDARY SCHOOLS, JUNIOR AND SENIOR HIGH
SCHOOLS, ARE LOCATED IN EACH DISTRICT, AND ABOUT 5500 TEACHERS ARE
EMPLOYED THROUGHOUT THE SYSTEM IN EUROPE. ABOUT 15% OF THIS GROUP
CONSISTS OF NTE'S - THOSE TEMPORARY EMPLOYEES WHO EMPLOYMENT IS NOT TO
EXCEED ONE YEAR. ABOUT 1100 TEACHERS AT 44 SCHOOLS ARE EMPLOYED IN
DISTRICT IV WHICH INCLUDED, INTER ALIA, THE TOWNS OF SCHWEINFURT, BAD
KISSINGEN, KITZINGEN, NUERNBERG, ANSBACH AND STUTTGART.
3. AT ALL TIMES MATERIAL HEREIN, DR. J. MASON WAS THE DIRECTOR OF
DODDSEUR AND ITS FIVE SCHOOLS DISTRICTS; ROGER PRINCE WAS THE
SUPERINTENDENT OF DISTRICT III, WHICH INCLUDED WEIERHOF, RAMSTEIN,
KAISERSLAUTERN AND SEMBACH; ROBERT BROOKS WAS CHIEF OF EMPLOYMENT AND
SERVICES - HEAD OF RECRUITMENT, REPLACEMENT AND PROMOTION AT THE
DIRECTORATE AND ACTED ON BEHALF OF DR. MASON; FRANCIS J. SCHWERD WAS
CHIEF, RECRUITMENT AND PLACEMENT BRANCH, KAISERSLAUTERN AREA CIVILIAN
PERSONNEL OFFICE, WHO EVALUATED THE QUALIFICATIONS OF EDUCATORS FOR
NON-ADMINISTRATIVE POSITIONS; WALTER INGRAM WAS THE SUPERINTENDENT OF
DISTRICT IV, AND ROBERT TRACY WAS ITS ADMINISTRATIVE OFFICER WHO WAS
RESPONSIBLE FOR KEEPING INFORMATION ON CURRENT VACANCIES IN THAT
DISTRICT; MARTIN FRANTZ WAS A LABOR-MANAGEMENT EMPLOYEE RELATIONS
SPECIALIST FOR RESPONDENT, WHO WAS RESPONSIBLE FOR LABOR RELATIONS AND
CONDUCTED MANAGEMENT TRAINING WORKSHOPS FOR ADMINISTRATORS. /3/
4. AT ALL TIMES MATERIAL HEREIN THE TEACHERS IN DODDSEUR'S SCHOOL
SYSTEM WERE REPRESENTED BY EITHER OVERSEAS EDUCATION ASSOCIATION (OEA)
OR OVERSEAS FEDERATION OF TEACHERS (OFT) AS THE EXCLUSIVE BARGAINING
REPRESENTATIVE AT RESPECTIVE SCHOOLS. OEA ACTED AS THE BARGAINING
REPRESENTATIVE AT THE SEMBACH SCHOOL, WHEREAS OFT REPRESENTED THE
TEACHERS AT KAISERSLAUTERN, RAMSTEIN, MANNHEIM AND OTHER SCHOOLS WITHIN
DISTRICT III.
5. ON JUNE 6, 1975, AT APPROXIMATELY 9:30 A.M. DR. MASON TELEPHONED
TO JOHN C. SHURTLEFF, A CLASS II TEACHER - PRINCIPAL AT WEIERHOF AND
HUSBAND OF THE COMPLAINANT HEREIN AND INFORMED SHURTLEFF THAT HE HAD
BEEN SELECTED FOR A PROMOTION AS A GS-11 ASSISTANT PRINCIPAL AT
SCHWEINFURT ELEMENTARY JUNIOR HIGH SCHOOL. UPON BEING ASKED IF HE WERE
INTERESTED IN THE PROMOTION AND TRANSFER, SHURTLEFF REPLIED IN THE
AFFIRMATIVE AND INQUIRED WHETHER HIS WIFE, COMPLAINANT HEREIN COULD ALSO
BE TRANSFERRED. MASON SAID THAT COULD BE EASILY ARRANGED AND SUGGESTED
SHURTLEFF CONTACT PRINCE IN THAT REGARD. WHEREUPON SHURTLEFF CALLED
PRINCE, RELATED THE OFFER MADE TO HIM, AND INQUIRED IF A POSITION COULD
BE FOUND FOR HIS WIFE AS A COUNSELOR CLASS II OR AN ENGLISH TEACHER.
PRINCE REPLIED HE DID NOT KNOW BUT WOULD CONTACT INGRAM ABOUT IT.
6. LATER IN THE MORNING OF JUNE 6, 1975 PRINCE CALLED INGRAM AND
ASKED IF A VACANCY EXISTED FOR HEIDEMARIE SHURTLEFF IN THE SCHWEINFURT
AREA AS A COUNSELOR CLASS II OR TEACHER OF JUNIOR HIGH SCHOOL ENGLISH.
INGRAM ASKED HIS ADMINISTRATIVE OFFICER, TRACY, WHO SAID THERE WAS NO
SUCH VACANCY IN DISTRICT IV, AND INGRAM INFORMED PRINCE NO OPENING WAS
AVAILABLE WITHIN COMMUTING DISTANCE OF SCHWEINFURT. SEVERAL DAYS LATER
PRINCE SO ADVISED JOHN SHURTLEFF, AND THE LATTER REMARKED HE WOULD NOT
MOVE WITHOUT HIS WIFE. PRINCE SUGGESTED SHURTLEFF TAKE THE JOB
PROMOTION; THAT HE WOULD CONTINUE TO WORK WITH INGRAM FOR A JOB FOR
HEIDEMARIE, AND HE FELT SURE A VACANCY WOULD OCCUR IN THE SUMMER.
SHURTLEFF REPLIED HE COULD NOT TRANSFER WITHOUT A GUARANTEE THAT HIS
WIFE COULD ALSO BE MOVED.
COMPLAINANT SPOKE TO BOTH PRINCE AND MASON ON JUNE 9, 1975 RE HER
REQUEST FOR A TRANSFER, AND SHE MENTIONED SUCH AREAS AS KITZINGEN, BAD
KISSINGEN, BAMBERG, WUERZBURG AND NUERNBERG. BOTH OFFICIALS CONFIRMED
THE FACT THAT NOTHING WAS AVAILABLE /4/, AND MASON STATED HE HAD TO
ABIDE BY THE INFORMATION OBTAINED FROM THE SUPERINTENDENT WITH RESPECT
TO THE EXISTENCE OF JOB VACANCIES.
7. COMPLAINANT HEIDEMARIE SHURTLEFF COMMENCED EMPLOYEMENT WITH
DODDSEUR IN AUGUST 1968. SHE TAUGHT AT THE SECONDARY LEVEL AT RAMSTEIN
JUNIOR HIGH SCHOOL - ENGLISH, GERMAN AND SOCIAL STUDIES IN THE 7TH, 8TH
AND 9TH GRADES. IN 1970 HEIDEMARIE WAS PROMOTED AND TRANSFERRED AS A
CLASS II COUNSELOR TO STUTTGART ELEMENTARY SCHOOL. IN 1971 SHE WAS
REASSIGNED IN THE SAME POSITION TO SEMBACH WHERE SHE CONTINUES TO
COUNSEL CHILDREN, PARENTS, TEACHERS, AND REGULATE THE EDUCATIONAL
PROGRAM FOR SPECIAL EDUCATION CHILDREN. COMPLAINANT TAUGHT FOR TWO
YEARS AT THE UNIVERSITY OF MARYLAND AND SHE TAUGHT SERVICE LEVEL COURSES
IN PSYCHOLOGY, COUNSELING, MENTAL HEALTH AND CURRICULUM.
8. IN 1973 COMPLAINANT BECAME ACTIVE IN OFT. SHE WAS INVOLVED IN
THE ELECTION CAMPAIGN IN THE KAISERSLAUTERN - RAMSTEIN AREA, HELPED TO
CHARTER A LOCAL AT SEMBACH, AND WAS ELECTED VICE-PRESIDENT OF SAID
UNION. IN 1974 SHE BECAME A MEMBER OF THE OFT NEGOTIATING TEAM WHICH
NEGOTIATED AN AGREEMENT WITH RESPONDENT, AND SUBSEQUENTLY HEIDEMARIE
ALONG WITH OTHERS, ENGAGED IN CONSULTATION AT THE DIRECTORATE AND
DISTRICT LEVELS. SHE WAS SELECTED IN 1974 BY THE UNION TO BE A MEMBER
OF THE FEDERAL WOMEN'S PROGRAM COMMITTEE AS ITS REPRESENTATIVE, AND
COMPLAINANT SO SERVED UNTIL THE FALL OF 1975. COMPLAINANT TAKES NO PART
IN THE UNION AFFAIRS AT SEMBACH.
RECORD FACTS SHOW THAT SINCE 1973 THERE HAVE BEEN OTHER TEACHERS
ACTIVE IN OFT, INCLUDING A PRESIDENT, SECRETARY, AND TREASURER.
COMPLAINANT WAS UNAWARE OF ANY DISCRIMINATORY ACTION TAKEN BY MANAGEMENT
AGAINST ANY PERSONNEL WHO WERE ACTIVE IN THE UNION OR WERE UNION
OFFICIALS.
9. FOLLOWING HER ELECTION AS VICE-PRESIDENT OF OFT IN 1973,
COMPLAINANT ATTENDED A PTA CONFERENCE AT CHIEMSEE. DR. OLSON, COMMUNITY
COORDINATOR AT THE DIRECTORATE, KARLSRUHE, SPOKE TO HER THEREAT AND SAID
HE NOTICED HEIDEMARIE JOINED A UNION AND BECAME AN ELECTED OFFICIAL OF A
GROUP THAT VILIFIES THE ADMINISTRATION.
10. IN 1975 TIMOTHY KELLEY, COMPLAINANT'S SUPERINTENDENT, TOLD HER
THAT SHE COULD NO LONGER BE ON THE FEDERAL WOMEN'S PROGRAM COMMITTEE AS
THE UNION REPRESENTATIVE - THAT SHE COULD NOT ATTEND THE WORKSHOP IN
THAT CAPACITY. COMPLAINANT HAD ATTENDED 4 OR 5 MEETINGS PREVIOUSLY AS A
COMMITTEE MEMBER AND PARTICIPATED IN PLANNING FOR SCHOOLS, CURRICULUM,
ETC. THERE WERE REPRESENTATIVES FROM 7-8 SCHOOLS WITH THE DISTRICT
SERVING ON SAID COMMITTEE.
PRINCE, WHO HAD WELCOMED HEIDEMARIE TO THE COMMITTEE WHEN SHE WAS
APPOINTED THERETO, TESTIFIED, AND I FIND, THAT A NEW COMMITTEE WAS
FORMED AND COMPLAINANT WAS NOT APPOINTED BY OFT TO SERVE THEREON; THAT
THE FWPC IS AWAITING THE SELECTION OF THE UNION REPRESENTATIVE; AND
THAT IF HEIDEMARIE IS DESIGNATED BY OFT AS ITS REPRESENTATIVE, SHE WOULD
BE ENTITLED TO SERVE AS A MEMBER THEREOF.
11. A JOINT LABOR-MANAGEMENT COMMITTEE MONTHLY MEETING WAS HELD AT
KARLSRUHE IN THE SPRING OF 1975. AT THIS MEETING PETER J. MIGLIACCIO
/5/, WHO IS AN ADMINISTRATOR, TEACHER - ASSISTANT PRINCIPAL, NAPLES
ELEMENTARY SCHOOL, NAPLES, ITALY, DISCUSSED WITH FRANTZ WHAT THE LATTER
CONSIDERED TO BE EXCESSIVE GRIEVANCES AND UNFAIR LABOR PRACTICES IN THE
NAPLES AREA. MIGLIACCIO SAID HE DIDN'T CONSIDER THEM EXCESSIVE; THAT
THEY WERE JUST DISSATISFIED EMPLOYEES EXPRESSING THEIR FEELINGS, AND
THAT NAPLES ISN'T THE ONLY PLACE WHERE THERE ARE DISSATISFIED EMPLOYEES.
FRANTZ REPLIED THERE ARE A LOT OF DISSATISFIED EMPLOYEES WHEREVER YOU
FIND A UNION INVESTIGATOR - "FOR INSTANCE, LIKE HEIDEMARIE SHURTLEFF".
HE ALSO INQUIRED WHY THEY COULDN'T CONTROL HER, STATING HEIDEMARIE WAS
RUINING THE CREDIBILITY OF THE UNION. MIGLIACCIO REPLIED SHE IS NOT
RUINING IT FROM "OUR POINT OF VIEW", AND ADDED THAT IF SHE'S THE
VICE-PRESIDENT, PEOPLE NATURALLY GO TO AN OFFICER TO SEEK ADVICE. /6/
12. A WORKSHOP MEETING OF PRINCIPALS AND ADMINISTRATORS WAS HELD ON
JULY 7, 1975. ITS PURPOSE WAS TO DISCUSS THE ORDER, UNIONS, AND HOW TO
HANDLE UNION REPRESENTATIVES WHO MAY BE BOTHERING PRINCIPALS. AN
UNIDENTIFIED INDIVIDUAL SETTING BEHIND JOHN SHURTLEFF STATED TO FRANTZ,
WHO PRESIDED OVER THE WORKSHOP, THEY WOULD BE GLAD TO STICK THE KNIFE IN
THE BACK OF THE UNION IF HE WOULD BACK THEM UP. FRANTZ TESTIFIED, AND I
FIND, HE DID NOT HEAR THAT STATEMENT, AND THE RECORD REFLECTS HE MADE NO
RETORT THERETO. SHURTLEFF FURTHER TESTIFIED SOMEONE SAID THAT THE
PRINCIPALS SHOULD REMEMBER THEY EVALUATE THE UNION PERSON COMING TO A
PARTICULAR SCHOOL. THERE IS NO SHOWING THAT FRANTZ OR A MANAGEMENT
REPRESENTATIVE MADE THIS STATEMENT OR THAT IT WAS ACKNOWLEDGED BY
RESPONDENT, AND I DO NOT IMPUTE IT TO THE LATTER.
13. IN RESPECT TO TRANSFER OF PERSONNEL, DODDSEUR HAS ADHERED TO THE
PRACTICE AND POLICY OF TRYING TO FIND A VACANCY FOR THE SPOUSE OF THE
ADMINISTRATOR WHO MAY BE OFFERED A POSITION AT A DIFFERENT LOCATION.
ABOUT 50% OF THE TIME NO POSITION IS AVAILABLE FOR THE SPOUSE AT THE
TIME AN OFFER IS MADE TO THE PRIMARY ADMINISTRATOR, BUT NEARLY ALL ARE
PLACED AT A LATER DATE. /7/ THE RECORD REFLECTS THAT RESPONDENT CANNOT
ACCEPT AN ARRANGEMENT WHEN THE ADMINISTRATOR OFFERED A TRANSFER INSISTS
IT BE MADE DEPENDENT UPON A GUARANTEE OF A JOB MOVE FOR HIS SPOUSE.
THIS IS DUE TO THE FACT THAT THE TRANSFER AFFECTS OTHER MOVES AND
SCHOOLS HAVE TO BE STAFFED WITHIN A SHORT PERIOD OF TIME.
14. RESPONDENT'S RECORDS INDICATE THAT IN JUNE 1975 COMPLAINANT WAS
ELIGIBLE FOR THE POSITION OF ENGLISH TEACHER, SECONDARY AND JUNIOR HIGH
SCHOOL LEVEL. SCHWERD TESTIFIED THAT A DETERMINATION WAS MADE THAT
COMPLAINANT DID NOT QUALIFY TO TEACH SOCIAL STUDIES - THAT SHE DID NOT
HAVE THE NECESSARY CREDENTIALS SINCE A MINIMUM OF 20 HOURS WAS REQUIRED
IN THIS AREA, WHEREAS HEIDEMARIE HAD BUT 9 HOURS IN HISTORY. /8/
15. THE RECORD REFLECTS THAT IN JUNE 1975 THERE WERE SEVERAL JOB
OPENINGS AT VARIOUS LOCATIONS FOR TEACHERS IN THE SCHOOL SYSTEM OF
DODDSEUR. THUS, A COUNSELOR POSITION WAS VACANT AT NUERNBERG, AS WELL
AS A DORM COUNSELOR THEREAT DUE TO THE TRANSFER OF SUCH OCCUPANT TO THE
DAYTIME STAFF. ANOTHER OPENING OCCURRED AT NUERNBERG HIGH SCHOOL WHEN
JANET RUSSELL, A TEACHER OF SPANISH AND SOCIAL STUDIES, WAS REPLACED BY
CAROLYN DUCK WHO RETURNED AFTER ONE YEAR'S LEAVE OF ABSENCE.
16. FEDERAL PERSONNEL MANUAL CHAPTER 3-51, SUBCHAPTER 4, SECTION 4.4
DEFINES A LOCAL COMMUTING AREA AS INCLUDING A POPULATION CENTER AND
SURROUNDING LOCALITIES IN WHICH PEOPLE LIVE AND REASONABLY CAN BE
EXPECTED TO TRAVEL BACK AND FORTH DAILY FROM HOME TO WORK. NO RULE
PREVAILS WHICH WOULD BE ARBITRARILY APPLIED TO THE MAXIMUM LIMIT OF THE
COMMUTING AREA. THE DETERMINATION OF SUCH AREA IS GOVERNED BY COMMON
PRACTICE, WHAT CAN BE REASONABLE EXPECTED BASED ON AVAILABILITY AND COST
OF PUBLIC TRANSPORTATION, CONVENIENCE OR ADEQUACY OF HIGHWAYS, AND
TRAVEL TIME TO AND FROM WORK.
17. TESTIMONY BY INGRAM REVEALS THAT HE DID NOT CONSIDER COMPLAINANT
FOR JOB OPENINGS AT NUERNBERG BECAUSE OF THE COMMUTING TIME INVOLVED.
THE SCHOOLS IN NUERNBERG ARE LOCATED IN FURTH AND THE DISTANCE BETWEEN
SCHWEINFURT AND NUERNBERG IS 115 KILOMETERS - 71 MILES OVER SECONDARY
ROADS. INGRAM DID NOT VIEW COMPLAINANT, IN ANY EVENT, AS QUALIFIED FOR
DORM COUNSELOR AT NUERNBERG SINCE PARTICULAR HOURS IN PSYCHOLOGY WERE
REQUIRED, NOR DID HE DEEM HER QUALIFIED TO REPLACE JANET RUSSELL SINCE
SHE DID NOT HAVE THE LANGUAGE BACKGROUND. THE DISTRICT III
SUPERINTENDENT CONSIDERED, AS REASONABLY WITHIN THE SCHWEINFURT AREA,
TEACHING POSSIBILITIES FOR HEIDEMARIE AS FOLLOWS: JUNIOR HIGH, GRADES 1
THROUGH 9, AND KINDERGARTEN AT BAMBERG; HIGH SCHOOL, GRADES 7 THROUGH
12, AT WUERZBURG; AND ELEMENTARY SCHOOL, KINDERGARTEN THROUGH 8TH
GRADE, AT KITZINGEN. THE RECORD REFLECTS, BASE ON THIS SUPERINTENDENT'S
TESTIMONY, THERE WERE NO VACANCIES IN JUNE 1975 AT THESE THREE SCHOOLS.
18. IN RESPECT TO BAD KISSINGEN, INGRAM DID NOT CONSIDER COMPLAINANT
FOR THAT AREA SINCE IT IS A SCHOOL OF KINDERGARTEN THROUGH GRADE 6.
SINCE HE WAS TOLD BY PRINCE THAT HEIDEMARIE WAS A COUNSELOR AND TEACHER
OF ENGLISH, SOCIAL STUDIES, THIS SIGNIFIED SHE SHOULD BE PLACED
SOMEWHERE BETWEEN 7TH AND 12TH GRADES.
19. NO OFT SCHOOLS ARE LOCATED IN INGRAM'S DISTRICT IV, AND THE
SUPERINTENDENT NEITHER HAD CONTACT WITH THAT UNION NOR ENGAGED IN ANY
CONSULTATION WITH THEM. INGRAM TESTIFIED, AND I FIND, HE WAS UNAWARE OF
THE FACT THAT COMPLAINANT HAD BEEN INVOLVED IN THE UNION ELECTION AT
ANSBACH HIGH SCHOOL SEVERAL YEARS EARLIER, NOR DID HE KNOW OF HER UNION
ACTIVITIES. /9/
CONCLUSIONS
IT IS CONTENDED BY COMPLAINANT THAT SHE WAS DISCRIMINATORILY DENIED A
TRANSFER FROM SEMBACH IN DISTRICT III TO A DISTRICT IV SCHOOL, AS A
TEACHER OR COUNSELOR, ON JUNE 9, 1975 WHEN HER HUSBAND WAS OFFERED A
PROMOTION AND TRANSFER FROM WEIERHOF (III) TO SCHWEINFURT (IV) AS AN
ASSISTANT PRINCIPAL. COMPLAINANT ASSERTS THE DENIAL WAS DUE TO HER
ACTIVITIES AS VICE-PRESIDENT OF OFT, AS WELL AS HER PARTICIPATION ON
BEHALF OF THE UNION IN CONSULTATIONS OR NEGOTIATIONS WITH MANAGEMENT.
SHE ADVERTS TO VARIOUS STATEMENTS MADE BY A DODDSEUR OFFICIAL EVINCING
ANTI-UNION ANIMUS, AND FURTHER INSISTS THERE WERE VACANCIES WHICH SHE
COULD HAVE FILLED AT OTHER SCHOOLS WITHIN THE AREA TO WHICH JOHN
SHURTLEFF WOULD HAVE BEEN ASSIGNED. THEREFORE, IT IS ARGUED, THE
FAILURE TO EFFECT A TRANSFER FOR COMPLAINANT IN JUNE 1975 CONSTITUTED
DISCRIMINATION UNDER THE ORDER IN VIOLATION OF 19(A)(1) AND (2) THEREOF.
SECTION 19(A)(2) OF THE ORDER PROTECTS AN EMPLOYEE FROM
DISCRIMINATORY TREATMENT AT THE HANDS OF AN EMPLOYER WHERE IT OCCURS AS
A RESULT OF THE INDIVIDUAL'S UNION ACTIVITIES. THUS, A FAILURE TO
PROMOTE AN EMPLOYEE WAS HELD VIOLATIVE OF THE AFORESAID SECTION OF THE
ORDER WHEN THE EMPLOYER PERMITTED AN EMPLOYEE'S ACTIVITIES AS UNION
STEWARD TO PLAY A ROLE IN DETERMINING HER FITNESS FOR SUCH PROMOTION.
DEPARTMENT OF THE ARMY, U.S. ARMY INFANTRY CENTER, CPO, FORT BENNING,
GEORGIA, A/SLMR NO. 515. IN EACH INSTANCE, AS IN THE CASE AT BAR, THE
ISSUE AS TO WHETHER UNIONISM PLAYED A PART IN MANAGEMENT'S CONDUCT
TOWARD AN EMPLOYEE IS LARGELY FACTUAL IN NATURE. THUS, A RESOLUTION OF
SUCH ISSUE REQUIRES A CAREFUL EXAMINATION OF THE FACTS AT HAND AND A
WEIGHING OF THE RELEVANT EVIDENCE IN REGARD THERETO.
IN SUPPORT OF HIS CONTENTION, COMPLAINANT'S REPRESENTATIVE CITES TWO
CASES IN WHICH, IT IS AVERRED, THE ASSISTANT SECRETARY FOUND A VIOLATION
OF SECTION 19(A)(2) OF THE ORDER BASED ON ALLEGEDLY PARALLEL SITUATIONS:
DEPARTMENT OF DEFENSE, NATIONAL GUARD, TEXAS AIR NATIONAL GUARD, A/SLMR
NO. 336; ENVIRONMENTAL PROTECTION AGENCY, PERRINE PRIMATE LAB, A/SLMR
NO. 133. IN THE FORMER CASE THE ASSISTANT SECRETARY FOUND HE HAD NO
JURISDICTION TO DECIDE WHETHER AN EMPLOYEE WAS DENIED REENLISTMENT FOR
DISCRIMINATORY REASONS. HE CONCLUDED THAT SINCE THE INDIVIDUAL FOLLOWED
AN APPEALS PROCEDURE, THE ISSUE COULD HAVE BEEN RAISED THEREIN - AND
HENCE THE MATTER WAS BARRED BY SECTION 19(D) OF THE ORDER. THE
ENVIRONMENTAL PROTECTION CASE, SUPRA, INVOLVED ACTS OF HARASSMENT AND
INTIMIDATION DIRECTED TOWARD THE PRESIDENT OF THE UNION AS A REPRISAL
FOR INTERVENING IN AN ADMINISTRATIVE LEAVE PROBLEM OF ANOTHER
INDIVIDUAL. THE DISCRIMINATEE'S UNION ACTIVITIES WERE RESTRICTED, AND
SHE RECEIVED DISPARATE TREATMENT AT THE HANDS OF MANAGEMENT.
AN ANALYSIS OF THE RECORD HEREIN CONVINCES ME THAT THE INSTANT CASE
IS DISTINGUISHABLE FROM THE ENVIRONMENTAL PROTECTION CASE, AND THAT
THERE IS A SUBSTANTIAL DIFFERENCE BETWEEN THE TWO FACTUAL PRESENTATIONS.
IN THE CITED CASE THE INDIVIDUAL'S UNION ACTIVITIES WERE A FOCAL POINT
OF CONCERN TO THE EMPLOYER, AND RESULTED IN HER RECEIVING WARNINGS ABOUT
THEM. THERE IS NO SHOWING HEREIN THAT COMPLAINANT'S ACTIVITIES AS
VICE-PRESIDENT OF THE OFT LOCAL WERE EVER RESTRICTED, CURTAILED, OR
HAMPERED IN ANY WAY. MOREOVER, OTHER TEACHERS HELD OFFICIAL POSITIONS
IN THAT UNION AND WERE AS ACTIVE AS HEIDEMARIE SHURTLEFF. NEVERTHELESS,
IT DOES NOT APPEAR THAT RESPONDENT REPRIMANDED OR INTIMIDATED THOSE
INDIVIDUALS, OR DISCRIMINATED AGAINST THEM IN ANY MANNER. NO EVIDENCE
EXISTS TO SHOW THAT COMPLAINANT WAS TREATED DISPARATELY OR SINGLED OUT
BY DODDSEUR FOR REPRIMANDS, WARNINGS, OR CENSURE, DUE TO HER POSITION
WITH OFT AS ITS REPRESENTATIVE.
REFERENCE IS MADE IN THE RECORD TO COMMENTS BY UNIDENTIFIED
INDIVIDUALS AT WORKSHOP MEETING ON JULY 7, 1975 OF PRINCIPALS AND
ADMINISTRATORS HELD FOR THE PURPOSE OF DEALING WITH THE UNION
REPRESENTATIVES. THERE WERE CERTAIN VOLUNTARY STATEMENTS MADE BY
SEVERAL OF THOSE IN ATTENDANCE, I.E. THAT THEY WOULD BE GLAD TO STICK
THE KNIFE IN THE BACK OF THE UNION IF MANAGEMENT WOULD SUPPORT THEM.
RECORD FACTS DO NOT REVEAL THAT FRANTZ, WHO CONDUCTED THE MEETING, HEARD
THE REMARK OR THAT HE IN ANY WAY EITHER ADOPTED OR CONCURRED IN THE
STATEMENT. ACCORDINGLY, I DO NOT HOLD RESPONDENT RESPONSIBLE FOR THAT
UTTERANCE OR SIMILAR COMMENTS, MADE BY OTHER INDIVIDUALS IN ATTENDANCE.
COMPLAINANT TESTIFIED SHE WAS NOT ALLOWED TO CONTINUE AS A MEMBER OF
THE FEDERAL WOMEN'S PROGRAM COMMITTEE IN 1975 AS A RESULT OF HER
PRINCIPAL, TIMOTHY KELLEY, TELLING HER SHE COULD NOT ATTEND AS A UNION
REPRESENTATIVE. WHILE SUCH A RESTRICTION BY MANAGEMENT MIGHT TEND
GENERALLY TO SUPPORT A DISCRIMINATORY MOTIVE TOWARD THIS EMPLOYEE, THE
RECORD DISCLOSES THAT A NEW COMMITTEE HAD BEEN FORMED AND OFT HAD NOT
YET SELECTED ITS DESIGNEE. THUS, I AM PERSUADED THAT ANY INFERENCE OF
DISCRIMINATION IN THIS REGARD IS REBUTTED BY THE UNREFUTED EXPLANATION
GIVEN BY PRINCE AS TO WHY HEIDEMARIE WAS TOLD NOT TO ATTEND AS THE UNION
REPRESENTATIVE.
CERTAIN STATEMENTS WERE ALSO MADE BY FRANTZ IN THE SPRING OF 1975, AT
A JOINT LABOR-MANAGEMENT MEETING, RE THE EXISTENCE OF DISSATISFIED
EMPLOYEES IN VIEW OF COMPLAINANT'S BEING A UNION INSTIGATOR. AT THIS
MEETING FRANTZ ALSO ASKED UNION REPRESENTATIVE MIGLIACCIO WHY THEY
COULDN'T CONTROL HEIDEMARIE, AND REMARKED SHE WAS RUINING THE UNION.
UNDER CERTAIN CIRCUMSTANCES REFERENCE BY MANAGEMENT TO AN EMPLOYEE AS A
"UNION INSTIGATOR" COULD WELL GIVE RISE TO A CONCLUSION THAT SUCH
REMARKS MANIFESTED AN ILLEGAL MOTIVE FOR ANY SUBSEQUENT ACTION TAKEN
TOWARD SUCH EMPLOYEE. IN THE INSTANT MATTER, HOWEVER, HEIDEMARIE HAD
BEEN ACTIVE FOR SEVERAL YEARS AND DEALT WITH MANAGEMENT IN NEGOTIATIONS.
NEVERTHELESS, THERE IS NO EVIDENCE OF ANY RETALIATION DIRECTED TOWARD
HER BECAUSE OF HER UNION ACTIVITIES. MOREOVER, THESE REMARKS WERE NOT
MADE BY THE DISTRICT IV SUPERINTENDENT WHO, AS THE RECORD REVEALS, HAD
NO KNOWLEDGE OF COMPLAINANT'S UNIONISM. ACCORDINGLY, AND THOUGH SUCH A
STATEMENT IS NOT TO BE CONDONED, I DO NOT FIND IT TO BE SUFFICIENTLY
PROBATIVE OF DISCRIMINATORY MOTIVATION, ESPECIALLY IN VIEW OF THE
EXPLANATIONS RECITED FOR THE FAILURE TO OFFER HEIDEMARIE A TRANSFER TO
ACCOMPANY HER HUSBAND IN JUNE 1975. /10/
PAST PRACTICE AND EXPERIENCE SHOWS THAT IN 50% OF THE INSTANCES WHERE
A JOB OFFER IS MADE TO THE PRIMARY ADMINISTRATOR, NO VACANCY EXISTS AT
THE TIME FOR THE SPOUSE SO THAT BOTH CAN BE TRANSFERRED TOGETHER. THUS,
THE ABSENCE OF A JOB OPENING FOR COMPLAINANT IN DISTRICT IV, AT THE TIME
HER HUSBAND WAS SELECTED FOR A PROMOTION AND TRANSFER TO SCHWEINFURT, IS
NOT DEEMED UNUSUAL OR INDICATIVE OF ANY DISPARATE TREATMENT TOWARD
HEIDEMARIE SHURTLEFF. HOWEVER, IT IS ARGUED THAT THERE WERE VACANCIES
/11/ IN DISTRICT IV WHICH COMPLAINANT WAS QUALIFIED TO FILL, AND THE
FAILURE TO APPOINT HER WAS TRACEABLE TO A DISCRIMINATORY MOTIVE.
RECORD TESTIMONY ESTABLISHES THAT THERE WERE SOME VACANCIES AT
NUERNBERG IN JUNE 1975. THE SUPERINTENDENT OF DISTRICT IV TESTIFIED
THAT HE DID NOT CONSIDER THAT A SUITABLE LOCATION FOR COMPLAINANT SINCE
IT WAS 70 MILES DISTANT FROM SCHWEINFURT - THE AREA TO WHICH
HEIDEMARIE'S HUSBAND WOULD BE REASSIGNED. WHILE COMPLAINANT MAY WELL
HAVE THOUGHT OTHERWISE, I CANNOT DEEM INGRAM'S CONCLUSION SO
UNREASONABLE AS TO BE LABELED "PRETEXTUOUS" UNDER THE CIRCUMSTANCES. A
DISTANCE OF THIS NATURE MAY WELL BE EXCLUDED FROM CONSIDERATION IN
EFFECTING A TRANSFER OF HUSBAND AND WIFE. MOREOVER, THE JOB OPENING FOR
DORM COUNSELOR AT NUERNBERG REQUIRED A PARTICULAR NUMBER OF HOURS IN
PSYCHOLOGY AS A PREREQUISITE. THUS, THIS JOB OPENING WAS, IN THE MIND
OF INGRAM, NOT SUITABLE FOR COMPLAINANT IN VIEW OF HER QUALIFICATION AS
A COUNSELOR.
THE RECORD IS NOT SUPPORTIVE OF AN INTENT BY THE DISTRICT IV
SUPERINTENDENT TO FORECLOSE COMPLAINANT FROM BEING CONSIDERED, IN ANY
EVENT, FOR A TRANSFER TO HIS DISTRICT. CONSIDERATION WAS GIVEN TO
POSSIBILITIES IN THIS REGARD FOR OPENINGS IN BAMBERG JUNIOR HIGH,
WUERZBURG HIGH, AND KITZINGEN ELEMENTARY SCHOOLS. NO EVIDENCE
CONTROVERTS THE LACK IF ANY VACANCIES THEREAT AS TESTIFIED TO BY INGRAM.
IN RESPECT TO BAD KISSINGEN, THE SUPERINTENDENT DETERMINED THAT SINCE
IT WAS A SCHOOL OF KINDERGARTEN THROUGH GRADE 6, IT LAY OUT SIDE THE
SCOPE OF COMPLAINANT'S INTEREST AND BACKGROUND - JUNIOR HIGH OR
SECONDARY SCHOOLS.
THE FOREGOING CONSTRAINS ME TO CONCLUDE THAT, CONTRARY TO THE
CONTENTION THAT HEIDEMARIE WAS NOT CONSIDERED FOR ANY TRANSFER FROM
SEMBACH, ATTEMPTS WERE MADE TO LOCATE AN OPENING FOR HER IN JUNE 1975 TO
ACCOMPANY HER HUSBAND; THAT DODDSEUR DID NOT HERMETICALLY SEAL ITS MIND
TO THE GRANTING OF A TRANSFER TO COMPLAINANT IN RETRIBUTION FOR ANY OF
HER ACTIONS AS A UNION ADHERENT ON BEHALF OF OFT. HAD THERE BEEN
CONTINUAL DENIALS OR REFUSALS BY RESPONDENT TO EFFECT A TRANSFER FOR
THIS TEACHER, ONE MIGHT BE MORE THAN SUSPICIOUS - AND, ALONG WITH
ANTI-UNION UTTERANCE, SUCH CONDUCT COULD WELL GIVE RISE TO AN INFERENCE
OF DISCRIMINATION. IN THE CASE AT BAR, THE RECORD REFLECTS THAT IN
NEARLY ALL INSTANCES OF THIS NATURE OPENINGS DO ULTIMATELY OCCUR FOR THE
SPOUSE. HOWEVER, DR. JOHN SHURTLEFF DID NOT SEE FIT TO ACCEPT THE JOB
PROMOTION AND AWAIT THE OUTCOME OF THIS LIKELIHOOD. WHILE HIS REFUSAL
TO TRANSFER WITHOUT HIS WIFE MAY BE UNDERSTANDABLE, IT DOES NOT LIE WITH
COMPLAINANT TO CHARACTERIZE DODDSEUR'S INABILITY TO FIND A VACANCY FOR
HER AT THAT PRECISE TIME PERIOD AS DISCRIMINATORY UNDER THE ORDER.
CONTRARIWISE, I AM PERSUADED, ON THE BASIS OF THE FOREGOING, THAT THERE
WERE NO VACANCIES ON JUNE 5, 1975 FOR WHICH COMPLAINANT WAS QUALIFIED IN
DISTRICT IV THAT WOULD HAVE BEEN WITHIN REASONABLE COMMUTING DISTANCE
FROM SCHWEINFURT. IN ANY EVENT, AND QUITE APART FROM THE CONCLUSIONS IN
THIS REGARD, I WOULD BE RELUCTANT TO SUBSTITUTE MY JUDGMENT FOR THAT OF
THE SUPERVISORS IN DISTRICT IV CONCERNING THE FOREGOING. ACCORDINGLY,
AND IN LIGHT OF MY DETERMINATION THAT NO ILLEGAL MOTIVE WAS RESPONSIBLE
FOR A FAILURE TO TRANSFER COMPLAINANT WITH HER HUSBAND, I CONCLUDE THAT
RESPONDENT DID NOT VIOLATE SECTION 19(A)(1) AND (2) OF THE ORDER.
RECOMMENDATION
UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS IT IS HEREBY
RECOMMENDED THAT THE COMPLAINT HEREIN BE DISMISSED IN ITS ENTIRETY.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: 9 JUN 1977
WASHINGTON, D.C.
/1/ THE NAME OF THE EMPLOYER APPEARS AS AMENDED AT THE HEARING.
/2/ AT THE HEARING THE COMPLAINT WAS AMENDED, WITHOUT OBJECTION, TO
INCLUDE 8(A)(1) BASED ON THE SAME ALLEGATIONS IN THE COMPLAINT.
/3/ THIS TERM INCLUDED TEACHER-PRINCIPALS OF SCHOOLS, SUCH AS DR.
JOHN C. SHURTLEFF, HUSBAND OF COMPLAINANT.
/4/ COMPLAINANT'S TESTIMONY THAT PRINCE REMARKED NOTHING WOULD BE
AVAILABLE FOR HER IS REFUTED BY THE SUPERINTENDENT. I AM PERSUADED THAT
PRINCE DID NOT MAKE SUCH A DECLARATION AND THUS FORECLOSE ALL FUTURE
POSSIBLE JOB OPENINGS FOR HEIDEMARIE.
/5/ THE COMPLAINT HEREIN WAS FILED BY MIGLIACCIO, ON BEHALF OF
HEIDEMARIE SHURTLEFF, AN OFT, EEO REPRESENTATIVE AND DISTRICT UNION
REPRESENTATIVE.
/6/ FRANTZ TESTIFIED HE HAD A CONVERSATION WITH MIGLIACCIO AT THIS
MEETING RE THE CHANGES AND GRIEVANCES FILED AGAINST RESPONDENT, AND THAT
HE WAS SEEKING TO GAIN INFORMATION TO HELP RESOLVE THE PROBLEMS. THERE
WAS, HOWEVER, NO DENIAL BY FRANTZ OF THE STATEMENTS ATTRIBUTED TO HIM BY
MIGLIACCIO. ACCORDINGLY, I CREDIT THE LATTER'S VERSION OF THIS
CONVERSATION.
/7/ SUBSEQUENT TO THE CHARGE HEREIN, OR THE COMPLAINT BEING FILED,
COMPLAINANT AND HER HUSBAND, JOHN C. SHURTLEFF, WERE OFFERED TRANSFERS
TO FRANKFURT JUNIOR HIGH AND HANAU HIGH RESPECTIVELY IN AUGUST 1975, AND
TO BAHRAIN, AN ISLAND IN THE PERSIAN GULF, IN JUNE 1976. SINCE BOTH
OFFERS WERE MADE AFTER THE INSTANT CHARGE AND COMPLAINT, CIRCUMSTANCES
SURROUNDING THE PROPOSED TRANSFERS AS WELL AS REFUSAL BY THE SHURTLEFFS
ARE DEEMED IMMATERIAL AND NOT DETERMATIVE. ACCORDINGLY, NO FURTHER
FINDINGS ARE MADE WITH RESPECT THERETO.
/8/ STANDARDS FOR THE EVALUATION WERE BASED ON DODDSEUR'S
REQUIREMENTS.
/9/ THE MAY-JUNE ISSUE OF "THE OVERSEAS SCHOOLS NEWSPAPER" CONTAINS A
FRONT PAGE ARTICLE OF DODDSEUR-OFT NEGOTIATIONS WITH PRACTICES OF
SEVERAL UNION NEGOTIATORS, INCLUDING COMPLAINANT. INGRAM TESTIFIED HE
WAS NOT SURE WHETHER HE, READ THAT ISSUE. ON THE BASIS OF THE
FOREGOING, I DO NOT IMPUTE TO INGRAM KNOWLEDGE OF COMPLAINANT'S UNION
ACTIVITIES ON BEHALF OF OFT.
/10/ SEE DEPARTMENT OF THE AIR FORCE, 439 2D AEROSPACE SUPPORT GROUP,
VANDENBERG AIR FORCE BASE, CALIFORNIA, A/SLMR NO. 537. IN THE CITED
CASE IT WAS HELD THAT COMMENTS RE FILING OF CHARGES BY THE UNION
PRESIDENT, AND QUERY AS TO WHAT COULD BE DONE TO STOP IT, WERE NOT
COERCIVE OR VIOLATIVE OF 19(A)(1).
/11/ THE RECORD REVEALS THAT, AT TIMES, SOME TEACHERS MAY LEARN OF
IMPENDING MOVES BY OTHER TEACHERS WHICH COULD CREATE VACANCIES IN
PARTICULAR AREAS. SINCE THESE ARE NOT OFFICIALLY COMMUNICATED TO
MANAGEMENT AND NOT LISTED AS VACANCIES, I DO NOT CONSIDER SUCH
"POTENTIAL" OPENINGS AS DEFINITE AND AVAILABLE VACANCIES FOR COMPLAINANT
OR ANY OTHER TEACHER IN THE EMPLOYER'S SCHOOL SYSTEM.
7 A/SLMR 902; P. 799; CASE NO. 22-6276(CA); SEPTEMBER 21, 1977.
SEPTEMBER 21, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
DEPARTMENT OF JUSTICE,
IMMIGRATION AND NATURALIZATION SERVICE
A/SLMR NO. 902
THIS CASE AROSE AS A RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT
FILED BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
(COMPLAINANT) ALLEGING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND
(6) OF THE ORDER BY REFUSING TO PROVIDE DOCUMENTS WHICH WERE NECESSARY
AND RELEVANT FOR THE COMPLAINANT TO ENGAGE IN MEANINGFUL NEGOTIATIONS ON
CHANGES IN A MERIT PROMOTION PLAN.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT'S REFUSAL
TO SUPPLY THE REQUESTED DOCUMENTS DID NOT VIOLATE THE ORDER. HE BASED
HIS CONCLUSION ON, AMONG OTHER THINGS, THE FACT THAT THE SURVEY ON WHICH
THE DOCUMENTS WERE BASED WAS INSTITUTED BY THE CIVIL SERVICE COMMISSION
UNDER STATUTES AND EXECUTIVE ORDERS. FURTHER, HE DETERMINED THAT THE
DOCUMENTS SOUGHT WERE NOT NECESSARY AND RELEVANT TO ENABLE THE
COMPLAINANT TO INTELLIGENTLY PERFORM ITS BARGAINING FUNCTIONS BECAUSE
MANAGEMENT'S PROPOSALS WERE NOT THE SOLE RESULT OF THE DOCUMENTS, AND
SUCH PROPOSALS REMAINED OPEN TO NEGOTIATION.
THE ASSISTANT SECRETARY AGREED WITH THE ADMINISTRATIVE LAW JUDGE'S
ULTIMATE CONCLUSION THAT DISMISSAL OF THE COMPLAINT IS WARRANTED.
HOWEVER, HE DID NOT ADOPT THE ADMINISTRATIVE LAW JUDGE'S CONCLUSION OR
RATIONALE FOR DETERMINING THAT THE DOCUMENTS, FORMULATED FOLLOWING A
SURVEY BY A "TRI-PARTITE" TEAM INCLUDING REPRESENTATIVES OF THE AGENCY
AND ACTIVITY AS WELL AS THE CIVIL SERVICE COMMISSION, CONTAINED
INFORMATION NOT NECESSARY AND RELEVANT FOR THE COMPLAINANT TO ENABLE IT
TO INTELLIGENTLY FULFILL ITS COLLECTIVE BARGAINING OBLIGATION. FURTHER,
HE NOTED THAT IT IS NOT REQUIRED THAT THE DOCUMENTS SOUGHT TO BE THE
SOLE BASIS FOR NEGOTIATING PROPOSALS, OR THAT THEY FORM THE BASIS FOR
FIXED, FINAL PROPOSALS BEFORE THEY BECOME NECESSARY AND RELEVANT FOR
NEGOTIATING PURPOSES.
BECAUSE HE FOUND, CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THAT THE
DOCUMENTS CONTAINED INFORMATION WHICH WAS NECESSARY AND RELEVANT, THE
ASSISTANT SECRETARY INSPECTED THE DOCUMENTS IN CAMERA AND COMPARED THEM
WITH A SUMMARY OF THE DOCUMENTS WHICH WAS OFFERED TO THE COMPLAINANT
DURING THE NEGOTIATIONS. THE ASSISTANT SECRETARY FOUND THAT THE SUMMARY
ADEQUATELY REFLECTED THE NECESSARY AND RELEVANT INFORMATION CONTAINED IN
THE DOCUMENTS TO WHICH THE COMPLAINANT WAS ENTITLED. HE, THEREFORE,
FOUND THAT THE RESPONDENT HAD FULFILLED ITS OBLIGATION AND THAT NO
VIOLATION OF SECTION 19(A)(1) AND (6) OCCURRED.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE COMPLAINT BE
DISMISSED.
DEPARTMENT OF JUSTICE,
IMMIGRATION AND NATURALIZATION
SERVICE
RESPONDENT
CASE NO. 22-6276(CA)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
COMPLAINANT
DECISION AND ORDER
ON MARCH 16, 1977, ADMINISTRATIVE LAW JUDGE GORDON J. MYATT 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 THIS CASE, INCLUDING THE EXCEPTIONS AND
SUPPORTING BRIEF FILED BY THE COMPLAINANT, I HEREBY ADOPT THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, TO
THE EXTENT CONSISTENT HEREIN.
THE COMPLAINANT ALLEGED THAT THE RESPONDENT VIOLATED SECTION 19(A)(1)
AND (6) OF THE ORDER BY REFUSING TO PROVIDE IT WITH DOCUMENTS WHICH WERE
NECESSARY AND RELEVANT FOR THE COMPLAINANT TO ENGAGE IN MEANINGFUL
NEGOTIATIONS ON A MERIT PROMOTION PLAN.
AS DETAILED MORE FULLY BY THE ADMINISTRATIVE LAW JUDGE, THE PARTIES
IN MAY 1975, BEGAN NEGOTIATIONS REGARDING CHANGES IN A MERIT PROMOTION
PLAN WHICH HAD BEEN IN EXISTENCE FOR SOME TIME. DURING NEGOTIATIONS,
THE COMPLAINANT'S NEGOTIATOR ASKED WHETHER THE RESPONDENT HAD USED
CERTAIN DOCUMENTS IN PREPARING ITS NEGOTIATING PROPOSALS. THE
RESPONDENT'S CHIEF NEGOTIATOR ANSWERED THAT THE DOCUMENTS REFERRED TO BY
THE COMPLAINANT WERE "INPUT" DOCUMENTS AND THAT SOME OF ITS PROPOSALS
"FLOWED" FROM THEM. THE COMPLAINANT SOUGHT THE DOCUMENTS AS NECESSARY
AND RELEVANT TO CARRYING OUT ITS REPRESENTATIONAL FUNCTIONS, AND THE
RESPONDENT DECLINED CONTENDING THE DOCUMENTS WERE INTRA-MANAGERIAL
COMMUNICATIONS, PRIVILEGED COMMUNICATIONS, AND EXEMPTED UNDER THE
FREEDOM OF INFORMATION ACT.
THE DOCUMENTS INVOLVED CONSIST OF A PERSONNEL MANAGEMENT EVALUATION
REPORT, REFERRED TO HEREAFTER AS THE "REPORT," AND A PERSONNEL
MANAGEMENT ACTION PLAN, REFERRED TO HEREAFTER AS THE "PLAN." THE REPORT
WAS PUBLISHED IN 1973 AFTER A SURVEY OF THE RESPONDENT'S ENTIRE
PERSONNEL STRUCTURE INITIATED BY THE CIVIL SERVICE COMMISSION PURSUANT
TO LAW AND VARIOUS EXECUTIVE ORDERS. AT THE REQUEST OF THE DEPARTMENT
OF JUSTICE, EMPLOYEES OF THE DEPARTMENT OF JUSTICE, THE IMMIGRATION AND
NATURALIZATION SERVICE, AND OF THE CIVIL SERVICE COMMISSION PARTICIPATED
EQUALLY IN THE SURVEY RENDERING THE SURVEY TEAM "TRI-PARTITE." TOPICS
COVERED IN THE REPORT INCLUDED THOSE UNDER CONSIDERATION IN THE
NEGOTIATIONS HEREIN. THE PLAN, PUBLISHED IN JANUARY 1975, WAS THE
RESPONDENT'S RESPONSE TO THE REPORT AND INCLUDED ITS REACTIONS TO THE
SUGGESTIONS MADE IN THE REPORT.
THE COMPLAINANT FILED A PRE-COMPLAINT CHARGED ON MAY 17, 1975,
ALLEGING THAT THE RESPONDENT'S FAILURE TO PROVIDE THE DISPUTED DOCUMENTS
WAS VIOLATIVE OF THE ORDER. ON JUNE 20, 1975, WHILE THE NEGOTIATIONS
WERE IN PROGRESS, THE DEPARTMENT OF JUSTICE OFFERED TO GIVE THE
COMPLAINANT A SUMMARY OF THE REPORT. NEVERTHELESS, ON JULY 15, 1975,
THE INSTANT COMPLAINT WAS FILED. ON SEPTEMBER 23, 1975, THE DEPARTMENT
OF JUSTICE SUBMITTED A SUMMARY OF BOTH DOCUMENTS TO THE COMPLAINANT.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT HAD NOT
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY REFUSING TO SUPPLY THE
COMPLAINANT WITH THE REQUESTED DOCUMENTS. HE BASED HIS CONCLUSION,
AMONG OTHER THINGS, ON THE FACT THAT THE SURVEY WAS INITIATED BY THE
CIVIL SERVICE COMMISSION PURSUANT TO STATUTES AND EXECUTIVE ORDERS.
FURTHER, HE DETERMINED THAT THE FINDINGS AND RECOMMENDATIONS OF THE
DOCUMENTS WERE NOT NECESSARY AND RELEVANT TO ENABLE THE COMPLAINANT TO
INTELLIGENTLY PERFORM ITS BARGAINING FUNCTIONS BECAUSE MANAGEMENT'S
PROPOSALS WERE NOT THE SOLE RESULT OF THE DOCUMENTS AND, FURTHER, THOSE
PROPOSALS REMAINED OPEN TO NEGOTIATION.
WHILE I AGREE WITH THE ADMINISTRATIVE LAW JUDGE'S ULTIMATE CONCLUSION
THAT DISMISSAL OF THE INSTANT COMPLAINT IS WARRANTED, I DO NOT ADOPT HIS
CONCLUSION OR RATIONALE FOR DETERMINING THAT THE DISPUTED DOCUMENTS
HEREIN WERE NOT NECESSARY AND RELEVANT. IN MY VIEW, TO ENABLE A LABOR
ORGANIZATION TO INTELLIGENTLY PERFORM ITS BARGAINING DUTIES, IT IS NOT
REQUIRED THAT THE DOCUMENTS SOUGHT BE THE SOLE BASIS FOR PROPOSALS, OR
THAT THEY FORM THE BASIS FOR FIXED, FINAL PROPOSALS, BEFORE THEY BECOME
NECESSARY AND RELEVANT TO THE EXCLUSIVE REPRESENTATIVE FOR NEGOTIATING
PURPOSES. UNDER THE CIRCUMSTANCES OF THIS CASE, I FIND THAT THE
DOCUMENTS FORMULATED FOLLOWING A SURVEY BY A "TRI-PARTITE" TEAM WHICH
INCLUDED REPRESENTATIVES FROM THE AGENCY AND THE ACTIVITY CONTAINED
INFORMATION WHICH WAS NECESSARY AND RELEVANT FOR THE COMPLAINANT TO
ENABLE IT TO INTELLIGENTLY FULFILL ITS COLLECTIVE BARGAINING OBLIGATION.
IN VIEW OF THIS DETERMINATION, I HAVE UNDERTAKEN AN IN CAMERA
INSPECTION OF THE DOCUMENTS HEREIN AND COMPARED THEM WITH THE SUMMARY
OFFERED BY THE RESPONDENT TO THE COMPLAINANT. UPON CAREFUL EXAMINATION,
I FIND THAT THE SUMMARY ADEQUATELY REFLECTS THE NECESSARY AND RELEVANT
INFORMATION TO WHICH THE COMPLAINANT IS ENTITLED THAT IS CONTAINED IN
THE DISPUTED DOCUMENTS.
IN VIEW OF THE FACT THAT THE SUMMARY WAS OFFERED TO THE COMPLAINANT
DURING THE COURSE OF NEGOTIATIONS, AND THAT AN ADEQUATE SUMMARY WAS, IN
FACT, PRESENTED TO THE COMPLAINANT, I FIND THAT THE RESPONDENT FULFILLED
ITS OBLIGATION IN THIS REGARD AND THAT NO VIOLATION OF SECTION 19(A)(1)
AND (6) OCCURRED AS, IN FACT, THE REQUESTED INFORMATION WAS NOT
ULTIMATELY WITHHELD FROM THE RESPONDENT.
ACCORDINGLY, I SHALL ORDER THAT THE COMPLAINT IN THIS CASE, ALLEGING
VIOLATIONS OF SECTION 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS
AMENDED, BE DISMISSED.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 22-6276(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 21, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
IN THE MATTER OF
DEPARTMENT OF JUSTICE,
IMMIGRATION AND NATURALIZATION
SERVICE
RESPONDENT
CASE NO. 22-6276(CA)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
COMPLAINANT
WALTER K. HILL, ESQ.
WASHINGTON, D.C.
FOR THE RESPONDENT
JAMES R. ROSA, ESQ.
WASHINGTON, D.C.
FOR THE COMPLAINANT
BEFORE: GORDON J. MYATT
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO A COMPLAINT FILED ON JULY 17, 1975 BY AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO (HEREINAFTER CALLED COMPLAINANT UNION)
ALLEGING THAT DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION
SERVICE (HEREINAFTER CALLED RESPONDENT ACTIVITY) VIOLATED SECTION
19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED, THE ACTING
REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES ISSUED A NOTICE OF
HEARING ON COMPLAINT ON MARCH 25, 1976. THE GRAVAMAN OF THE COMPLAINANT
WAS THAT THE RESPONDENT ACTIVITY FAILED TO NEGOTIATE IN GOOD FAITH, AS
REQUIRED BY THE EXECUTIVE ORDER, BY REFUSING TO PROVIDE THE COMPLAINANT
UNION WITH CERTAIN DOCUMENTS ON WHICH PROPOSALS WERE BASED FOR CHANGES
IN A NEGOTIATED MERIT PROMOTION AND REASSIGNMENT PLAN. THE COMPLAINT
ASSERTS THAT THE REFUSAL OF THE REQUESTED DOCUMENTS CONSTITUTED AN
UNLAWFUL DENIAL OF INFORMATION NECESSARY AND RELEVANT FOR THE
COMPLAINANT UNION TO ENGAGE IN MEANINGFUL CONTRACT NEGOTIATIONS.
A HEARING WAS HELD ON JUNE 22, 1976, IN WASHINGTON, D.C. ON THIS
MATTER. ALL PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED FULL
OPPORTUNITY TO BE HEARD AND TO INTRODUCE RELEVANT EVIDENCE AND TESTIMONY
ON THE ISSUES INVOLVED. BRIEFS WERE SUBMITTED BY COUNSEL AND HAVE BEEN
DULY CONSIDERED IN ARRIVING AT THE DECISION IN THIS CASE. UPON THE
ENTIRE RECORD IN THIS MATTER, /1/ INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING:
FINDINGS OF FACT
A. BACKGROUND FACTS
THE COMPLAINANT UNION HOLDS NATIONAL EXCLUSIVE RECOGNITION AS THE
REPRESENTATIVE OF THE EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION
SERVICE, WHICH IN TURN IS A NATIONAL PRIMARY SUBDIVISION OF THE
DEPARTMENT OF JUSTICE. SINCE APPROXIMATELY 1969, THE PARTIES HAVE HAD
NEGOTIATED AGREEMENTS ON A NATIONWIDE BASIS FOR TWO SEPARATE CATEGORIES
OF EMPLOYEES OF THE RESPONDENT ACTIVITY. ONE AGREEMENT COVERED THE
BORDER PATROL EMPLOYEES AND THE OTHER RELATED TO ALL OTHER BARGAINING
UNIT EMPLOYEES OF THE RESPONDENT ACTIVITY. IN ADDITION, THE PARTIES
NEGOTIATED A SEPARATE MERIT PROMOTION AND REASSIGNMENT PLAN IN 1969
APPLICABLE TO BOTH CATEGORIES OF EMPLOYEES. BECAUSE OF CERTAIN
DEFICIENCIES IN THIS NEGOTIATED MERIT PROMOTION PLAN A NUMBER OF
GRIEVANCES WERE GENERATED SHORTLY AFTER ITS IMPLEMENTATION, AND THE
PARTIES RENEGOTIATED THE AGREEMENT IN OCTOBER 1970. THE RENEGOTIATED
PLAN WAS ISSUED BY THE RESPONDENT ACTIVITY IN NOVEMBER 1970, AS
ADMINISTRATIVE MANUAL SECTION 2265. /2/ THIS PLAN WAS IN EFFECT AT THE
TIME OF THE DISPUTE GIVING RISE TO THIS CASE.
BY ITS TERMS, THE MERIT PROMOTION AND REASSIGNMENT PLAN APPLIED TO
EMPLOYEES SERVING IN THE "OFFICER CORP" AND BARGAINING UNIT EMPLOYEES
WHO WERE CONSIDERED PART OF THE "NON-OFFICER CORP". THESE TWO
CATEGORIES OF EMPLOYEES WERE DEFINED IN THE ADMINISTRATIVE MANUAL AS
FOLLOWS:
ALL POSITIONS ABOVE THE TRAINING LEVEL IN THE CLASSIFICATION SERIES
ENTITLED "BORDER PATROL
AGENTS", "CRIMINAL INVESTIGATOR," "DEPORTATION OFFICER," "IMMIGRATION
INSPECTOR," AND
"IMMIGRATION EXAMINER" AND ALL GRADE BS-10 POSITIONS ENTITLED
"IMMIGRATION OFFICER" COMPRISE
THE "OFFICER CORP".
ALL POSITIONS IN OTHER CLASSIFICATION SERIES AND ALL OTHER
IMMIGRATION OFFICER POSITIONS
COMPRISE THE "NON-OFFICER CORP".
B. THE EVALUATION SURVEY AND ACTION REPORT
SOMETIME IN 1973, THE CIVIL SERVICE COMMISSION (CSC) COMMENCED A
NATION-WIDE REVIEW OF THE EFFECTIVENESS OF THE PERSONNEL PROGRAM OF THE
RESPONDENT ACTIVITY. THIS REVIEW WAS INITIATED BY CSC UNDER ITS
AUTHORITY CONFERRED BY TITLE 5 OF THE UNITED STATES CODE AND VARIOUS
EXECUTIVE ORDERS. THE DEPARTMENT OF JUSTICE, HOWEVER, INSISTED THAT
OFFICIALS FROM ITS PERSONNEL OFFICE AND FROM THE RESPONDENT ACTIVITY BE
INCLUDED AS "FULLY PARTICIPATING MEMBERS" OF THE REVIEW TEAMS. CSC
AGREED TO THESE ARRANGEMENTS.
THE PERSONNEL MANAGEMENT REVIEW WAS COMPLETED AND PRESENTED TO THE
RESPONDENT ACTIVITY ADN JUSTICE IN SEPTEMBER 1973, IN A DOCUMENT
ENTITLED "PERSONNEL MANAGEMENT EVALUATION REPORT." THE REPORT CONTAINED
THE ANALYSES AND FINDINGS OF THE REVIEWING GROUP AND RECOMMENDATIONS FOR
CHANGES OR IMPROVEMENTS IN SPECIFIC PERSONNEL POLICIES AND PRACTICES.
THE RESPONDENT ACTIVITY REVIEWED THE REPORT AND REGARDING THOSE
RECOMMENDATIONS WHICH IT ACCEPTED, ISSUED A "PERSONNEL MANAGEMENT ACTION
PLAN" IN JANUARY 1975. THE ACTION PLAN IDENTIFIED THE ACCEPTED
RECOMMENDATIONS, SET FORTH THE SPECIFIC ACTION INTENDED TO BE TAKEN,
ESTABLISHED TIME TARGETS FOR THE PROPOSED ACTION AND ASSIGNED OFFICIAL
RESPONSIBILITY FOR ITS ACCOMPLISHMENT. /3/
C. THE 1975 NEGOTIATIONS ON THE MERIT PROMOTION AND
REASSIGNMENT PLAN
IN MAY 1975, THE PARTIES MET FOR NEGOTIATIONS ON THE EXISTING MERIT
PROMOTION AND REASSIGNMENT PLAN (ADMINISTRATIVE MANUAL 2265). JOHN
MULHOLLAND, DIRECTOR OF THE CONTRACT NEGOTIATIONS DEPARTMENT OF THE
COMPLAINANT UNION, WAS THE CHIEF NEGOTIATOR ON BEHALF OF THE LABOR
ORGANIZATION. DENNIS EKBERG, LABOR-MANAGEMENT RELATIONS SPECIALIST, WAS
THE CHIEF NEGOTIATOR FOR THE RESPONDENT ACTIVITY. DURING THE COURSE OF
NEGOTIATIONS, EKBERG PROPOSED CHANGES IN THE EXISTING PROMOTION AND
REASSIGNMENT AGREEMENT. MANAGEMENT PROPOSED THAT: (A) THE AREA OF
CONSIDERATION FOR PROMOTION AND REASSIGNMENT BE RESTRICTED TO REGIONS
RATHER THAN ACTIVITY-WIDE AS THE CURRENT AGREEMENT REQUIRED; (B) THE
METHODOLOGY EMPLOYED IN EVALUATING CANDIDATES BE CHANGED; AND (C)
SENIORITY BE ELIMINATED IN THE EVALUATION AND RANKING OF EMPLOYEES WHO
WERE CANDIDATES FOR PROMOTION OR REASSIGNMENT. MULHOLLAND QUESTIONED
MANAGEMENT CONCERNING THE NEED FOR THE CHANGES CONTEMPLATED BY THE
PROPOSALS, THE EKBERG REPLIED THAT THERE WERE NUMEROUS COMPLAINTS ABOUT
THE CURRENT PLAN AND EMPLOYEES WERE UNHAPPY WITH IT. ACCORDING TO
MULHOLLAND, HE ASKED EKBERG HOW MANAGEMENT BECAME AWARE OF THIS AND WAS
INFORMED THAT IT "FLOWED" FROM THE EVALUATION REPORT. AFTER A CAUCUS
WITH HIS FELLOW UNION REPRESENTATIVES, MULHOLLAND RETURNED TO THE
BARGAINING TABLE AND SPECIFICALLY ASKED MANAGEMENT IF THEIR PROPOSALS
WERE BASED ON THE EVALUATION REPORT. /4/ EKBERG REPLIED THAT THE
EVALUATION REPORT WAS USED AS "AN INPUT DOCUMENT." HE TESTIFIED AT THE
HEARING THAT MANAGEMENT ALSO RELIED ON THE RECOMMENDATIONS OF 20 FIELD
MANAGERS WHO WERE BROUGHT TO THE HELP FORMULATE THE PROPOSALS ON THE
BASIS OF THEIR FIELD EXPERIENCE. IN ADDITION, MANAGEMENT WAS ASSISTED
BY RESPONSES TO QUESTIONNAIRES SUBMITTED TO REGIONAL FIELD OFFICES.
WHEN EKBERG STATED THAT MANAGEMENT HAD USED THE EVALUATION REPORT AS AN
"INPUT DOCUMENT", THE UNION REPRESENTATIVE ASKED FOR BOTH THE EVALUATION
REPORT AND THE ACTION PLAN IN ORDER TO ANALYZE MANAGEMENT'S PROPOSALS.
EKBERG REFUSED TO SUPPLY THE DOCUMENTS ON THE GROUNDS THAT THEY WERE (1)
INTRA-MANAGEMENT COMMUNICATIONS, (2) PRIVILEGED COMMUNICATIONS AND (3)
EXEMPTED UNDER THE FREEDOM OF INFORMATION ACT. WHEN QUESTIONED AT THE
HEARING, EKBERG STATED THAT MANAGEMENT TOOK THE POSITION DURING THE
NEGOTIATIONS THAT THE PROPOSALS WERE NEGOTIABLE ITEMS, AND THAT
MANAGEMENT WAS NOT COMPELLED TO INSIST UPON THE PROPOSALS BECAUSE OF
ANYTHING CONTAINED IN THE EVALUATION REPORT. WHEN ASKED IF THE
EVALUATION REPORT AND THE ACTION PLAN CONTRIBUTED, AT LEAST PARTIALLY,
TO THE FORMULATION OF MANAGEMENT'S PROPOSALS, EKBERG REPLIED AS FOLLOWS:
"WE HAD KNOWLEDGE OF THEM. THEY WERE USED IN COMING UP WITH THE
PROPOSALS. WE DIDN'T --
YOU KNOW, LOOK AT IT AND SAY THIS IS THE LAW THAT HAS COME DOWN FROM
THE CIVIL SERVICE
COMMISSION AND THE PROPOSALS MUST BE THIS WAY."
THE UNION REPRESENTATIVES CONTINUED TO INSIST ON PRODUCTION OF THE
DOCUMENTS AND MANAGEMENT CONTINUED TO RESIST THIS REQUEST. AS A RESULT
OF THE REFUSAL OF MANAGEMENT TO SUPPLY THE EVALUATION REPORT AND THE
ACTION PLAN, THE UNION FILED AN UNFAIR LABOR PRACTICE CHARGE WITH THE
RESPONDENT ACTIVITY ON MAY 16, 1975; CITING A VIOLATION OF 19(A)(1) AND
(6) OF THE EXECUTIVE ORDER. ON JULY 15, 1975, THE COMPLAINANT UNION
FILED AN UNFAIR LABOR PRACTICE COMPLAINT WITH THE LABOR-MANAGEMENT
SERVICES ADMINISTRATION. ON SEPTEMBER 23, 1975, THE DEPARTMENT OF
JUSTICE ON BEHALF OF THE RESPONDENT ACTIVITY SUBMITTED A "SANITIZED
SUMMARY" OF THE EVALUATION REPORT AND ACTION PLAN TO THE UNION. THE
SUMMARY WAS REJECTED BY THE UNION REPRESENTATIVES AS BEING COMPLETELY
UNSATISFACTORY IN ASSISTING IT TO ANALYZE MANAGEMENT'S PROPOSALS. THE
COMPLAINANT UNION RENEWED ITS REQUEST FOR THE ORIGINAL DOCUMENTS, WHILE
CONCEDING THAT NAMES AND IDENTIFICATION OF INDIVIDUALS COULD BE DELETED
TO PROTECT THEIR PRIVACY. MANAGEMENT REFUSED TO COMPLY WITH THIS
REQUEST ON THE SAME GROUNDS STATED DURING THE NEGOTIATIONS.
CONTENTIONS OF THE PARTIES
IN SUPPORT OF ITS CLAIM TO ACCESS TO THE EVALUATION REPORT AND ACTION
PLAN, THE COMPLAINANT UNION ARGUES IN VERY SWEEPING TERMS THAT THE ONLY
STANDARD TO BE APPLIED IN DETERMINING WHETHER PRODUCTION OF THE
DOCUMENTS IS REQUIRED IS ONE OF "NECESSITY AND RELEVANCE", I.E., WHETHER
THE DOCUMENTS WERE NECESSARY AND RELEVANT TO THE UNION TO ENABLE IT TO
REPRESENT ITS MEMBERS DURING NEGOTIATIONS AS REQUIRED BY SECTION 10(E)
OF THE EXECUTIVE ORDER. /5/ THIS ARGUMENT SPECIFICALLY RULES OUT ANY
CONSIDERATION OF WHETHER MANAGEMENT CHOSE TO RELY UPON THE DOCUMENTS
DURING NEGOTIATIONS. (COMPLAINANT UNION'S BRIEF, PAGE 3). IN
DETERMINING "NECESSITY AND RELEVANCY" THE COMPLAINANT UNION RELIES
HEAVILY UPON CASES DEALING WITH THE PRIVATE SECTOR, AND ASSERTS THERE
NEED ONLY BE A SHOWING THAT THE REQUESTED MATERIAL IS "REASONABLY
APPROPRIATE" OR "NECESSARY" TO ENABLE THE UNION TO CARRY OUT ITS
NEGOTIATION FUNCTION BY CHECKING THE ACCURACY OF THE MATERIAL
UNDERGIRDING MANAGEMENT'S PROPOSALS. /6/ TRANSFERRING THIS RATIONALE TO
THE PUBLIC SECTOR, THE COMPLAINANT UNION CONTENDS THAT "NECESSITY AND
RELEVANCY" ARE LIKEWISE CONTROLLING CRITERIA UNDER THE ASSISTANT
SECRETARY /7/ AND COUNCIL /8/ DECISIONS AND SUPPORT ITS CLAIM FOR THE
PRODUCTION OF DOCUMENTS.
THE RESPONDENT ACTIVITY, HOWEVER, RESISTS ON SEVERAL GROUNDS. FIRST,
IT ASSERTS COMPLIANCE WITH THE EXECUTIVE ORDER AND THE COUNCIL
REQUIREMENTS UPON SUBMISSION OF THE "SANITIZED SUMMARY" TO THE
COMPLAINANT UNION. IT ALSO ARGUES THAT THE ORIGINAL DOCUMENTS ARE
INTRA-MANAGEMENT COMMUNICATIONS PRIVILEGED FROM DISCLOSURE, AND EXEMPTED
BY VIRTUE OF THE FREEDOM OF INFORMATION ACT (FIOA). 5 U.S.C. 552(B), ET
SEQ., FINALLY, THE RESPONDENT ACTIVITY ASSERTS THAT THE EVALUATION
REPORT AND ACTION PLAN ARE THE RESULT OF AN EVALUATION PROCESS INITIATED
BY THE CIVIL SERVICE COMMISSION PURSUANT TO STATUTE AND IS NOT THE
PRODUCT OF AGENCY MANAGEMENT. THEREFORE, UNDER THE ASSISTANT
SECRETARY'S DECISION IN U.S. CIVIL SERVICE COMMISSION, WASHINGTON, D.C.,
A/SLMR NO. 640, THE DOCUMENTS NEED NOT BE GIVEN TO THE EXCLUSIVE
REPRESENTATIVE.
CONCLUDING FINDINGS
IN MY JUDGMENT, THE EXECUTIVE ORDER AND THE CASE LAW DO NOT REQUIRE
AS MUCH AS CLAIMED BY THE COMPLAINANT UNION, NOR DO THEY PROHIBIT
DISCLOSURE FOR THE REASONS ASSERTED BY THE RESPONDENT ACTIVITY IN THIS
CASE.
THE SWEEP OF THE ARGUMENT ADVANCED BY THE COMPLAINANT UNION CLOSELY
APPROXIMATES A REQUEST FOR AN AUTOMATIC DETERMINATION THAT DOCUMENTS
BECOME RELEVANT AND NECESSARY, AND SHOULD BE MADE AVAILABLE TO THE
EXCLUSIVE REPRESENTATIVE, ONCE IT IS ESTABLISHED THAT THEY HAVE PLAYED
SOME ROLE IN THE FORMULATION OF PROPOSALS SUBMITTED BY MANAGEMENT FOR
NEGOTIATION. I DO NOT PERCEIVE THIS TO BE THE LAW IN EITHER THE PRIVATE
OR THE PUBLIC SECTOR. AN EXAMINATION OF THE LABOR BOARD CASES REVEALED
THAT THE BOARD IN THE EXERCISE OF ITS DISCRETION DETERMINES WHETHER
DOCUMENTS AND RECORDS SHOULD BE PRODUCED UPON REQUEST FOR NEGOTIATIONS
AND GRIEVANCES. THE BOARD DOES SO UNDER STANDARDS SET BY IT IN ORDER TO
MAKE SUCH A DETERMINATION.
LIKEWISE, THE ASSISTANT SECRETARY, IN THE EXERCISE OF HIS DISCRETION,
HAS ESTABLISHED CRITERIA AGAINST WHICH CLAIMS FOR ACCESS OR PRODUCTION
OF DOCUMENTS MUST BE MEASURED IN ORDER TO DETERMINE WHETHER THE REFUSAL
TO DO SO IS A VIOLATION OF THE EXECUTIVE ORDER. IN SOCIAL SECURITY
ADMINISTRATION, KANSAS CITY PAYMENT CENTER /9/ THE ASSISTANT SECRETARY
STATED THAT IT MUST BE SHOWN, ". . . THAT THE INFORMATION REQUESTED IS
NECESSARY FOR INTELLIGENT BARGAINING, IS NOT READILY AVAILABLE FROM SOME
OTHER SOURCE, AND THAT WITHOUT WHICH THE UNION WILL BE IMPEDED IN
CARRYING OUT THE RESPONSIBILITIES IMPOSED UPON IT BY THE ORDER." WHILE
IT IS TRUE THAT THE SOCIAL SECURITY CASE INVOLVED PRODUCTION OF
INFORMATION NECESSARY TO ENABLE THE UNION TO MAKE A DECISION ON WHETHER
TO PROCESS A POTENTIAL GRIEVANCE, THE SAME CRITERIA MUST BE APPLIED TO
DOCUMENTS REQUESTED DURING NEGOTIATIONS. ACCORDINGLY, I FIND THAT THE
STANDARDS SET FORTH IN THE SOCIAL SECURITY CASE CONTROL ANALYSIS OF THE
FACTS CONTAINED IN THE INSTANT CASE.
ON THIS BASIS, I FIND AND CONCLUDE THAT THE COMPLAINANT UNION WAS NOT
ENTITLED TO HAVE ACCESS TO OR TO INSPECT THE EVALUATION REPORT AND
ACTION PLAN. WHILE IT IS EVIDENT THAT MANAGEMENT'S PROPOSALS WOULD HAVE
CAUSED SUBSTANTIAL CHANGES IN THE NEGOTIATED MERIT PROMOTION AND
REASSIGNMENT PLAN, THERE IS NOTHING IN THE RECORD TO INDICATE THAT
MANAGEMENT CONSIDERED ITS PROPOSALS TO BE FIXED AND SET BY THE
RECOMMENDATIONS OF THE EVALUATION REPORT OR THE GOALS OF THE ACTION
PLAN. ON THE CONTRARY, IT IS APPARENT THAT DURING THE COURSE OF THE
DISCUSSIONS, MANAGEMENT CONSISTENTLY STATED THAT THE PROPOSED CHANGES
WERE NEGOTIABLE. THE MERE FACT THAT MANAGEMENT INDICATED THAT ITS
PROPOSALS WERE FORMULATED IN PART BY THE RESULTS OF THE EVALUATION
REPORT AND ACTION PLAN IN NO WAY PLACED ANY LIMITATIONS ON ITS
WILLINGNESS TO NEGOTIATE THESE MATTERS. MANAGEMENT NEVER TOOK THE
POSITION THAT IT COULD NOT NEGOTIATE OR VARY ITS PROPOSALS BECAUSE THEY
WERE FIXED BY THE EVALUATION REPORT AND ACTION PLAN. IN THESE
CIRCUMSTANCES, IT CANNOT BE SAID THAT THE FAILURE TO PRODUCE THOSE
DOCUMENTS PREVENTED THE UNION FROM BARGAINING INTELLIGENTLY OR IMPEDED
IT IN PERFORMING ITS REPRESENTATIONAL DUTIES IMPOSED BY THE EXECUTIVE
ORDER. IN MY JUDGMENT, IT WAS INCUMBENT UPON THE UNION AT THIS POSTURE
OF THE NEGOTIATIONS TO ADVANCE COUNTERPROPOSALS AND ENGAGE IN THE NORMAL
"GIVE AND TAKE" ASSOCIATED WITH THE COLLECTIVE BARGAINING PROCESS.
THE COMPLAINANT UNION PLACES GREAT EMPHASIS ON THE LANGUAGE CONTAINED
IN THE NASA CASE DECIDED BY THE COUNCIL. /10/ IN THAT CASE AGENCY
HEADQUARTERS-LEVEL REPRESENTATIVES CONDUCTED MEETINGS AND INTERVIEWS
WITH ACTIVITY-LEVEL EMPLOYEES IN ORDER TO GET OPINIONS REGARDING THE
OPERATION OF THE EEO PROGRAM OF THE AGENCY. THE UNION, WHICH WAS THE
EXCLUSIVE REPRESENTATIVE, WAS NOT ALLOWED TO HAVE OBSERVERS PRESENT NOR
WERE THEY NOTIFIED OF THE MEETINGS BETWEEN AGENCY MANAGEMENT AND
ACTIVITY EMPLOYEES. THE ASSISTANT SECRETARY FOUND THAT THERE WAS NO
OBLIGATION ON THE PART OF AGENCY OFFICIALS TO ALLOW UNION
REPRESENTATIVES TO BE PRESENT BECAUSE NO BARGAINING RELATIONSHIP EXISTED
BETWEEN THE AGENCY AND THE UNION; RATHER IT EXISTED BETWEEN THE
ACTIVITY AND THE UNION. SINCE THE OFFICIALS OF THE ACTIVITY HAD NO
CONTROL OVER AGENCY HEADQUARTERS-LEVEL REPRESENTATIVES, HE FOUND THAT
THE BARGAINING OBLIGATION UNDER THE EXECUTIVE ORDER HAD NOT BEEN
VIOLATED. HE DID CONCLUDE, HOWEVER, THAT A VIOLATION OF SECTION
19(A)(1) HAD BEEN COMMITTED IN THAT THE AGENCY REPRESENTATIVES DISCUSSED
"TERMS AND CONDITIONS OF EMPLOYMENT" WITH THE ACTIVITY EMPLOYEES WITHOUT
HAVING THE EXCLUSIVE REPRESENTATIVE PRESENT. THIS WAS HELD TO BE
COUNTER TO THE "PURPOSES AND POLICIES" OF THE ORDER, AND THE VIOLATION
WAS NOT BASED ON THE EXISTENCE OF A BARGAINING RELATIONSHIP.
ON APPEAL THE COUNCIL HELD THAT NO VIOLATION HAD OCCURRED. IN SO
DOING, THE COUNCIL STATED THAT THE DISCUSSIONS "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. THE COUNCIL WENT ON TO STATE
THAT "WITHOUT THE BENEFIT OF SUCH INFORMATION-GATHERING MECHANISMS,
AGENCY MANAGEMENT WOULD BE SERIOUSLY IMPEDED IN EFFECTIVELY CARRYING OUT
ITS RESPONSIBILITY -- OFTEN MANDATED BY STATUTE . . . TO CONDUCT
PERIODIC EVALUATIONS OF THE EFFECTIVENESS OF SUCH AGENCYWIDE PROGRAMS."
THE COUNCIL MADE IT CLEAR, HOWEVER, THAT SUCH INFORMATION-GATHERING
TECHNIQUES CAN BE EMPLOYED ONLY IN CERTAIN CIRCUMSTANCES. THOSE
CIRCUMSTANCES WHICH WOULD APPLY TO THE ISSUES PRESENTED HERE WERE SET
FORTH AS INSTANCES WERE MANAGEMENT DOES NOT:
". . . 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."
IT IS THIS LANGUAGE WHICH THE COMPLAINANT UNION RELIES UPON TO
BUTTRESS ITS CLAIM TO THE REQUESTED DOCUMENTS IN THE EXISTENT CASE. IT
POINTS OUT, AND CORRECTLY SO, THAT THE EVALUATION REPORT AND ACTION PLAN
CONTAINED SPECIFIC MATTERS WHICH WERE SUBJECT TO THE NEGOTIATION PROCESS
AND THAT THE INFORMATION GATHERED BY THE REPORT WAS SUBSEQUENTLY USED,
IN PART, TO HELP FORMULATE MANAGEMENT'S PROPOSALS FOR REVISING THE
NEGOTIATED MERIT PROMOTION AND REASSIGNMENT PLAN.
WHILE IT PRESENTS A CLOSE QUESTION, I AM NOT PERSUADED THAT THE
PERSONNEL MANAGEMENT SURVEY, INITIATED BY THE CIVIL SERVICE COMMISSION
PURSUANT TO STATUTE AND EXECUTIVE ORDERS, IS THE TYPE OF
INFORMATION-GATHERING MECHANISM THE COUNCIL HAD IN MIND IN NASA WHEN IT
SET FORTH THE CIRCUMSTANCES THAT WOULD PERMIT THE PRESENCE OF UNION
REPRESENTATIVES -- AND BY EXTENSION, WHICH WOULD PERMIT THE UNION TO
HAVE ACCESS TO THE RESULTS. MY CONCLUSIONS IN THIS REGARD WOULD NOT BE
THE SAME IF THE SURVEY HAD BEEN UNDERTAKEN BY THE RESPONDENT ACTIVITY OR
BY ITS PARENT AGENCY, AS IN THE NASA CASE. HERE, HOWEVER, THE SURVEY
WAS INITIATED BY AN AUTHORITY OUTSIDE OF THE AGENCY/ACTIVITY, UNDER
MANDATE OF STATUTE, TO EVALUATE ON AN ACTIVITY-WIDE BASIS THE
EFFECTIVENESS OF THE PERSONNEL MANAGEMENT PROGRAM OF THE RESPONDENT
ACTIVITY. IT WAS NOT INITIATED BY THE ACTIVITY FOR THE PURPOSE OF
UNDERMINING ANY GAINS OR BENEFITS THE UNION HAD ACHIEVED THROUGH THE
BARGAINING PROCESS. THAT THE FINDINGS AND RECOMMENDATIONS OF THE SURVEY
AND THE ACTIVITY'S ACTION PLAN WERE AMONG SEVERAL FACTORS CONSIDERED BY
MANAGEMENT IN FORMULATING ITS PROPOSALS FOR SUBSEQUENT NEGOTIATIONS DID
NOT CAUSE THE DOCUMENTS, AT THAT POINT, TO BECOME NECESSARY AND RELEVANT
TO ENABLE THE COMPLAINANT UNION TO INTELLIGENTLY PERFORM ITS BARGAINING
RESPONSIBILITIES. MANAGEMENT DID NOT INDICATE THAT ITS PROPOSALS WERE
THE SOLE RESULT OF THE SURVEY OR THAT IT WAS REQUIRED TO INSIST UPON THE
PROPOSED CHANGES IN THE EXISTING PROGRAM AS A RESULT OF THE EVALUATION
FINDINGS AND RECOMMENDATIONS. RATHER, THE RESPONDENT ACTIVITY
CONSISTENTLY TOOK THE POSITION THE MATTERS WERE NEGOTIABLE. THUS,
MAKING IT EVIDENT THAT THE NEGOTIATIONS WERE NOT CIRCUMSCRIBED BY THE
EVALUATION REPORT OR ACTION PLAN.
IN THESE CIRCUMSTANCES, I FIND THAT THE EVALUATION REPORT AND ACTION
PLAN ARE NOT NECESSARY OR RELEVANT TO ALLOW THE COMPLAINANT UNION TO
ENGAGE IN INTELLIGENT BARGAINING, AND THAT THE REFUSAL TO PRODUCE THE
DOCUMENTS DID NOT IMPEDE THE UNION FROM DISCHARGING ITS REPRESENTATIONAL
FUNCTION IMPOSED BY THE EXECUTIVE ORDER.
IN ARRIVING AT THE ABOVE, I DO NOT CONSIDER IT NECESSARY TO CONSIDER
THE CLAIM OF EXEMPTION BASED ON THE FREEDOM OF INFORMATION ACT ASSERTED
BY THE RESPONDENT ACTIVITY. THIS DEFENSE DOES NOT PROPERLY BELONG IN
THIS FORUM. IT CAN ONLY ARISE IN THE FEDERAL DISTRICT COURT IN AN
ACTION BROUGHT UNDER THAT PARTICULAR STATUTE. THE EXEMPTIONS WRITTEN
INTO THE STATUTE HAVE NO RELEVANCY OR MATERIALITY IN DETERMINING
ENTITLEMENT TO THE PRODUCTION OF DOCUMENTS UNDER THE EXECUTIVE ORDER.
FOR THIS REASON, I ALSO FIND IT UNNECESSARY TO DETERMINE WHETHER THE
REQUESTED DOCUMENTS ARE INTRA-MANAGEMENT COMMUNICATIONS AND THEREFORE
PRIVILEGED FROM DISCLOSURE. THIS CLAIM ALSO ARISES UNDER THE FREEDOM OF
INFORMATION ACT AND CANNOT BE ASSERTED HERE.
FINALLY, THERE IS ONE OTHER CLAIM ASSERTED BY THE RESPONDENT ACTIVITY
WHICH MERITS COMMENT HERE. IT IS URGED THAT SINCE THE EVALUATION SURVEY
WAS INITIATED BY THE CIVIL SERVICE COMMISSION, AND UNDER THE DECISION OF
THE ASSISTANT SECRETARY IN THE CIVIL SERVICE CASE /11/, THE SURVEY TEAMS
WERE NOT A PART OF AND DID NOT REPRESENT AGENCY MANAGEMENT. I FIND THAT
CASE, HOWEVER, TO BE INAPPOSITE TO THE FACTS OF THE INSTANT CASE. THERE
THE SURVEY OR EVALUATION REVIEW WAS INITIATED AND CONDUCTED SOLELY BY
THE CIVIL SERVICE COMMISSION. THE FACTS HERE DISCLOSE THAT ALTHOUGH THE
EVALUATION REVIEW WAS INITIATED BY THE CIVIL SERVICE COMMISSION, THE
SURVEY GROUPS WERE TRIPARTITE IN COMPOSITION, I.E., THEY WERE COMPOSED
OF REPRESENTATIVES OF THE COMMISSION, THE DEPARTMENT OF JUSTICE AND THE
RESPONDENT ACTIVITY ACTING AS FULL PARTICIPATING MEMBERS. ACCORDINGLY,
I CONSIDER THAT CASE TO BE DISTINGUISHABLE ON ITS FACTS AND ITS HOLDING
IS NOT CONTROLLING HERE.
BASED ON THE FINDING THAT THE REQUESTED DOCUMENTS ARE NOT RELEVANT
AND NECESSARY TO ENABLE THE COMPLAINANT UNION TO CARRY OUT ITS
BARGAINING RESPONSIBILITIES UNDER THE EXECUTIVE ORDER, I FIND AND
CONCLUDE THAT THE RESPONDENT ACTIVITY HAS NOT VIOLATED SECTION 19(A)(1)
AND (6) OF THE ORDER.
RECOMMENDED ORDER
ON THE BASIS OF THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF
LAW, I FIND THAT DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION
SERVICE HAS NOT ENGAGED IN CONDUCT WHICH VIOLATES SECTION 19(A)(1) AND
(6) OF EXECUTIVE ORDER 11491, AS AMENDED. ACCORDINGLY, I RECOMMEND THAT
THE COMPLAINT IN THIS CASE BE DISMISSED IN ITS ENTIRETY.
GORDON J. MYATT
ADMINISTRATIVE LAW JUDGE
DATED: 16 MAR 1977
WASHINGTON, D.C.
/1/ THE OFFICIAL TRANSCRIPT HEREIN CONTAINS NUMEROUS ERRORS, A NUMBER
OF WHICH ARE REPETITIVE. FOR EXAMPLE, THE PHRASE "MERIT PROMOTION AND
REASSIGNMENT PLAN" IS RECORDED THROUGHOUT THE TRANSCRIPT AS "AMERICAN
MOTION REASSIGNMENT PLAN". SIMILARLY THE SECTIONS OF THE EXECUTIVE
ORDER ALLEGED TO HAVE BEEN VIOLATED ARE RECORDED THROUGHOUT THE OFFICIAL
TRANSCRIPT AS 19A1 AND 19A6 INSTEAD OF 19(A)(1) AND 19(A)(6).
ACCORDINGLY, THE TRANSCRIPT IS HEREBY CORRECTED TO SUBSTITUTE "MERIT
PROMOTION AND REASSIGNMENT PLAN" IN EVERY INSTANCE WHERE IT IS RECORDED
AS "AMERICAN MOTION REASSIGNMENT PLAN". LIKEWISE, THE TRANSCRIPT IS
HEREBY CORRECTED TO READ "19(A)(1)" AND "19(A)(6)" IN EVERY INSTANCE
THAT 19A1 AND 19A6 IS CITED. IN ADDITION, THE FOLLOWING CORRECTIONS ARE
HEREBY MADE TO THE TRANSCRIPT:
PAGE 66, LINE 24 - "REACCESS" CORRECTED TO READ "REASSESS"
PAGE 79, LINE 13 - "226504" IS CORRECTED TO READ "2265.04"
PAGE 97, LINE 8 - "IS A FACT THAT WAS SUED" IS CORRECTED TO READ "IS
A FACTOR THAT WAS
USED"
PAGE 99, LINE 21 - "E OR C GUIDELINES" IS CORRECTED TO READ "EEOC
GUIDELINES"
/2/ COMPLAINANT UNION EXHIBIT NO. 1.
/3/ ONE OF THE AREAS CONSIDERED BY THE EVALUATION REPORT AND
ADDRESSED BY THE ACTION PLAN WAS THE EFFECTIVENESS OF THE CURRENT
NEGOTIATED MERIT PROMOTION AND REASSIGNMENT PLAN.
/4/ THE UNION REPRESENTATIVES WERE AWARE THAT MANAGEMENT AND THE
CIVIL SERVICE COMMISSION WERE CONDUCTING THE EVALUATION REVIEW IN 1973,
AND THEY WERE ALSO AWARE THAT MANAGEMENT HAD ISSUED ITS ACTION PLAN IN
1975. HOWEVER, THEY HAD NEVER SEEN EITHER DOCUMENT.
/5/ SECTION 10(E) PROVIDES, IN PART:
(E) 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 . . . 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.
/6/ NLRB V. TRUITT MANUFACTURING CO., 351 U.S. 149; GENERAL ELECTRIC
CO. V. NLRB, 466 F.2D 1177; J.I. CASE CO. V. NLRB, 253 F.2D 149; NLRB
V. ITEM CO., 220 F.2D 956.
/7/ DEPARTMENT OF DEFENSE, STATE OF NEW JERSEY, A/SLMR NO. 323;
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, KANSAS CITY PAYMENT CENTER BUREAU OF RETIREMENT AND
SURVIVORS INSURANCE, A/SLMR NO. 411; UNITED STATES DEPARTMENT OF
AGRICULTURE, FOREST SERVICE, PACIFIC SOUTHWEST AND RANGE EXPERIMENT
STATION, BERKLEY, CALIFORNIA, A/SLMR NO. 573; SOCIAL SECURITY
ADMINISTRATION, MID-AMERICA PROGRAM CENTER, BRSI, KANSAS CITY, MISSOURI,
A/SLMR NO. 619.
/8/ DEPARTMENT OF DEFENSE, STATE OF NEW JERSEY, FLRC NO. 73A-59,
REPORT NO. 71 (JUNE 11, 1975).
/9/ DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, KANSAS CITY PAYMENT CENTER, BUREAU OF RETIREMENT AND
SURVIVORS INSURANCE, SUPRA.
/10/ NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA),
WASHINGTON, D.C. AND LYNDON B. JOHNSON SPACE CENTER (NASA) HOUSTON,
TEXAS, FLRC NO. 74-A-95, REPORT NO. 84 (OCTOBER 24, 1975).
/11/ UNITED STATES CIVIL SERVICE COMMISSION, WASHINGTON, D.C., SUPRA.
7 A/SLMR 901; P. 796; CASE NO. 60-4995(RA); SEPTEMBER 21, 1977.
SEPTEMBER 21, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
DEPARTMENT OF THE ARMY,
89TH ARMY RESERVE COMMAND,
WICHITA, KANSAS
A/SLMR NO. 901
THIS CASE INVOLVED AN RA PETITION FILED BY THE 89TH ARMY RESERVE
COMMAND (89TH ARCOM), WHICH, IN EFFECT, SOUGHT A DETERMINATION BY THE
ASSISTANT SECRETARY AS TO THE IMPACT OF A REORGANIZATION AND TRANSFER OF
PERSONNEL AND ADMINISTRATIVE FUNCTIONS ON A UNIT OF EXCLUSIVE
RECOGNITION OF CERTAIN ARMY RESERVE ELEMENTS REPRESENTED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3330 (AFGE) AND
LOCATED IN THE STATES OF NEBRASKA, MINNESOTA AND IOWA.
AS A RESULT OF A REORGANIZATION IN OCTOBER 1973, NEBRASKA EMPLOYEES
EXCLUSIVELY REPRESENTED BY THE AFGE WERE TRANSFERRED INTO A NEWLY
ESTABLISHED MILITARY COMMAND, THE 89TH ARCOM AND WERE TRANSFERRED FROM
THE ADMINISTRATIVE AUTHORITY OF THE FIFTH U.S. ARMY, TO THE CONTROL AND
AUTHORITY OF THE SIXTH U.S. ARMY. THE 89TH ARCOM ENCOMPASSED ARMY
RESERVE UNITS IN NEBRASKA, KANSAS, NORTH DAKOTA AND SOUTH DAKOTA. IN
OCTOBER 1976, THE CIVILIAN PERSONNEL OFFICE (CPO) SERVICING 89TH ARCOM
EMPLOYEES WAS CHANGED FROM THE FIFTH ARMY'S FORT MCCOY, WISCONSIN, TO
THE COP OF THE SIXTH ARMY AT FORT RILEY, KANSAS.
THE 89TH ARCOM CONTENDED THAT, AS A RESULT OF THE 1973
REORGANIZATION, THE SUBSEQUENT TRANSFER OF PERSONNEL AND ADMINISTRATIVE
FUNCTIONS, AND THE EXECUTION OF A NEGOTIATED AGREEMENT WHICH COVERED
ONLY BARGAINING UNIT EMPLOYEES IN MINNESOTA AND IOWA, THE CERTIFIED UNIT
IS NO LONGER APPROPRIATE AND THE UNIT CRITERIA CONTAINED IN SECTION
10(B) OF THE ORDER COULD ONLY BE FULFILLED BY SEVERANCE OF THE NEBRASKA
EMPLOYEES FROM THE EXISTING UNIT AND THEIR INCLUSION IN A UNIT WHICH
WOULD COMPRISE ONLY 89TH ARCOM EMPLOYEES. THE AFGE, ON THE OTHER HAND,
CONTENDED THAT THE REORGANIZATION WAS ONLY A PAPER EXERCISE AND THAT IT
HAS, AND CAN IN THE FUTURE, ADEQUATELY REPRESENT THE NEEDS OF NEBRASKA
UNIT EMPLOYEES, AS WELL AS THE EMPLOYEES REMAINING WITHIN THE
JURISDICTION OF THE FIFTH ARMY, BY NEGOTIATING A SEPARATE CONTRACT WITH
THE SIXTH ARMY FOR NEBRASKA EMPLOYEES WHO HAVE, IN EFFECT, BEEN
"SEVERED" FROM THE EXCLUSIVELY RECOGNIZED UNIT.
THE ASSISTANT SECRETARY FOUND THAT THE NEBRASKA EMPLOYEES NO LONGER
SHARE AN IDENTIFIABLE OR VIABLE COMMUNITY OF INTEREST WITH UNIT
EMPLOYEES IN MINNESOTA AND IOWA WHO REMAIN IN THE FIFTH ARMY AND WHO ARE
SERVICED BY THE CPO, FORT MCCOY. IN THIS REGARD, HE FOUND THAT NEBRASKA
EMPLOYEES ARE SUBJECT TO A DIFFERENT SET OF POLICIES, DIRECTIVES, AND
REGULATIONS PROMULGATED BY THE SIXTH ARMY AND ADMINISTERED BY FORT
RILEY, THAT THEY NO LONGER SHARE THE SAME COMPETITIVE AREAS OF
CONSIDERATION FOR PROMOTIONS AND REDUCTION-IN-FORCE PROCEDURES, AND THAT
THERE IS NO SIGNIFICANT DEGREE OF INTERCHANGE BETWEEN 89TH ARCOM
EMPLOYEES AND THE EMPLOYEES LOCATED IN MINNESOTA AND IOWA AND
REPRESENTED BY THE AFGE. THE ASSISTANT SECRETARY FOUND ALSO THAT THE
CONTINUED INCLUSION OF THE NEBRASKA EMPLOYEES IN THE CERTIFIED UNIT
WOULD ADVERSELY IMPAIR BOTH EFFECTIVENESS OF DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS. IN THIS CONNECTION, HE NOTED THAT THE AFGE'S
NEGOTIATED AGREEMENT COVERED ONLY IOWA AND MINNESOTA EMPLOYEES, THAT THE
PARTIES CONSIDER THE NEBRASKA EMPLOYEES "SEVERED" FROM THE EXCLUSIVELY
RECOGNIZED UNIT, AND THAT EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS WOULD BE PROMOTED BY INCLUDING NEBRASKA EMPLOYEES IN A UNIT
WHICH WOULD COINCIDE WITH THE APPROPRIATE COMMAND STRUCTURE.
UNDER THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY ORDERED THAT THE
RA PETITION BE DISMISSED. IN THIS REGARD, HE NOTED THAT ALTHOUGH AN RA
PETITION IS AN APPROPRIATE VEHICLE FOR AN ACTIVITY (OR AGENCY) TO SEEK A
DETERMINATION OF REPRESENTATIONAL STATUS OF EMPLOYEES IN A SUBSTANTIALLY
CHANGED UNIT, IT DOES NOT FOLLOW THAT AN ELECTION WILL BE APPROPRIATE IN
EACH INSTANCE WHERE SOME OF AN ACTIVITY'S EMPLOYEES HAD BEEN PREVIOUSLY
EMPLOYED BY ANOTHER ACTIVITY AND WERE INCLUDED IN AN EXCLUSIVELY
RECOGNIZED UNIT. THUS, IN THE ASSISTANT SECRETARY'S VIEW, ELECTIONS IN
NEWLY ESTABLISHED UNITS WHICH ARE NOT SUBSTANTIALLY IDENTIFIABLE WITH
ANY PREEXISTING UNITS BUT, RATHER, ESSENTIALLY INCLUDED EMPLOYEES WHO
HAVE BEEN UNREPRESENTED, SHOULD RESULT ONLY FROM PETITIONS FILED BY
LABOR ORGANIZATIONS SEEKING EXCLUSIVE RECOGNITIONS IN SUCH UNITS.
ACCORDINGLY, WHILE THE ASSISTANT SECRETARY, IN THE INSTANT CASE, HAD
DETERMINED THE IMPACT OF THE REORGANIZATION AND TRANSFER OF PERSONNEL
AND ADMINISTRATIVE FUNCTIONS ON THE UNIT REPRESENTED BY THE AFGE, THE
PARTICULAR CIRCUMSTANCES WERE NOT FOUND TO WARRANT THE ELECTION SOUGHT
BY THE 89TH ARCOM'S RA PETITION.
DEPARTMENT OF THE ARMY,
89TH ARMY RESERVE COMMAND,
WICHITA, KANSAS
ACTIVITY-PETITIONER
CASE NO. 60-4995(RA)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO,
LOCAL 3330
LABOR ORGANIZATION
AND
CIVILIAN PERSONNEL OFFICE,
FORT MCCOY, SPARTA, WISCONSIN
INTERESTED PARTY
DECISION AND ORDER
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER MAJORIE THOMPSON.
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, INCLUDING A BRIEF FILED
BY THE ACTIVITY-PETITIONER, THE ASSISTANT SECRETARY FINDS:
ON SEPTEMBER 14, 1971, THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, HEREINAFTER CALLED AFGE, /1/ WAS CERTIFIED AS THE
EXCLUSIVE REPRESENTATIVE OF ALL WAGE GRADE AND GENERAL SCHEDULE
NONSUPERVISORY AND NONPROFESSIONAL EMPLOYEES OF THE 88TH ARMY RESERVE
COMMAND, 416TH ENGINEER COMMAND, 300TH MILITARY POLICE COMMAND, 425TH
TRANSPORTATION COMMAND, 89TH DIVISION (TRAINING) AND THE 205TH INFANTRY
BRIGADE LOCATED WITHIN THE STATES OF MINNESOTA, IOWA AND NEBRASKA. /2/
A NEGOTIATED AGREEMENT WHICH COVERED ONLY BARGAINING UNIT EMPLOYEES IN
MINNESOTA AND IOWA WAS EXECUTED BY THE PARTIES IN MARCH 1977.
ON OCTOBER 1, 1973, PURSUANT TO AN ARMY-WIDE REORGANIZATION, A NEW
MILITARY ORGANIZATION, THE 89TH ARMY RESERVE COMMAND, HEREINAFTER CALLED
THE 89TH ARCOM OR ACTIVITY-PETITIONER, WAS ESTABLISHED. ITS MISSION IS
TO SUPERVISE AND CONTROL ALL ARMY RESERVE ELEMENTS IN THE STATES OF
KANSAS, NEBRASKA, NORTH DAKOTA AND SOUTH DAKOTA.
THE REORGANIZATION RESULTED IN THE TRANSFER OF THE NEBRASKA EMPLOYEES
EXCLUSIVELY REPRESENTED BY THE AFGE TO THE NEW COMMAND. /3/ ALSO, ON
OCTOBER 1, 1973, THE STATES OF KANSAS AND NEBRASKA WERE TRANSFERRED FROM
THE ADMINISTRATIVE AUTHORITY OF THE COMMANDER, FIFTH U.S. ARMY,
HEADQUARTERED AT FORT SAM HOUSTON, TEXAS, TO THE AUTHORITY AND CONTROL
OF THE COMMANDER, SIXTH U.S. ARMY, WITH HEADQUARTERS AT THE PRESIDIO,
SAN FRANCISCO, CALIFORNIA. THE RECORD DISCLOSES THAT AT THE REQUEST OF
THE COMMANDER, SIXTH ARMY, AND IN ORDER TO PROMOTE EFFICIENCY OF
OPERATIONS, THE CIVILIAN PERSONNEL OFFICE, HEREINAFTER CALLED CPO,
SERVICING 89TH ARCOM EMPLOYEES WAS CHANGED FROM THE FIFTH ARMY'S CPO AT
FORT MCCOY, WISCONSIN, TO THE CPO OF THE SIXTH ARMY AT FORT RILEY,
KANSAS. THE EFFECTIVE DATE OF THIS TRANSFER WAS OCTOBER 1, 1976.
THEREAFTER, THE 89TH ARCOM FILED THE SUBJECT RA PETITION, WHICH, IN
EFFECT, SEEKS A DETERMINATION BY THE ASSISTANT SECRETARY AS TO THE
IMPACT OF THE AFOREMENTIONED REORGANIZATION AND TRANSFER OF CPO
FUNCTIONS ON THE UNIT EXCLUSIVELY REPRESENTED BY THE AFGE.
THE ACTIVITY-PETITIONER CONTENDS THAT, AS A RESULT OF THE
REORGANIZATION AND TRANSFER OF CPO FUNCTIONS, THE CERTIFIED UNIT IS NOW
INAPPROPRIATE AND THE UNIT CRITERIA CONTAINED IN SECTION 10(B) OF THE
ORDER CAN ONLY BE FULFILLED BY SEVERANCE OF THE NEBRASKA EMPLOYEES FROM
THE EXISTING UNIT AND THEIR INCLUSION IN A UNIT WHICH WOULD COMPRISE
ONLY 89TH ARCOM EMPLOYEES. THE AFGE, ON THE OTHER HAND, CONTENDS THAT
THE REORGANIZATION WAS ONLY A PAPER EXERCISE WITH NO ACTUAL CHANGES IN
EMPLOYEE DUTIES, IMMEDIATE SUPERVISION OR WORK SITES, AND THAT IT HAS,
AND CAN IN THE FUTURE, ADEQUATELY REPRESENT THE NEEDS OF NEBRASKA UNIT
EMPLOYEES, AS WELL AS THE EMPLOYEES REMAINING UNDER THE FIFTH ARMY, BY
NEGOTIATING A SEPARATE AGREEMENT WITH THE SIXTH ARMY FOR THE NEBRASKA
EMPLOYEES WHO HAVE BEEN, IN EFFECT, "SEVERED" FROM THE EXCLUSIVELY
RECOGNIZED UNIT.
THE EVIDENCE ESTABLISHES THAT, PURSUANT TO THE 1973 REORGANIZATION,
THE NEBRASKA EMPLOYEES ARE NOW SOLELY WITHIN THE ADMINISTRATIVE
AUTHORITY OF THE COMMANDER, 89TH ARCOM, AND ARE SUBJECT TO THE POLICIES,
DIRECTIVES, AND REGULATIONS, INCLUDING LABOR RELATIONS POLICY, ISSUED BY
THE SIXTH ARMY, WHICH ARE INTERPRETED AND ADMINISTERED ON BEHALF OF THE
89TH ARCOM AND THE SIXTH ARMY BY THE CPO, FORT RILEY, KANSAS. IOWA AND
MINNESOTA BARGAINING UNIT EMPLOYEES, ON THE OTHER HAND, REMAIN DIVIDED
AMONG SEVERAL INDEPENDENT COMMANDS, AND ARE SUBJECT TO A DIFFERENT SET
OF POLICIES, DIRECTIVES, AND REGULATIONS PROMULGATED BY THE FIFTH ARMY
AND INTERPRETED AND ADMINISTERED BY THE CPO, FORT MCCOY, WHICH ALSO
PROVIDES LABOR RELATIONS GUIDANCE FOR THE FIFTH ARMY COMMANDER AND ALL
ITS SERVICED COMMANDS.
THE RECORD INDICATES THAT ALTHOUGH THE NEBRASKA EMPLOYEES, NOW WITHIN
THE 89TH ARCOM, FOR THE MOST PART REMAIN IN THE SAME LOCATION AND
CONTINUE TO PERFORM THE SAME DUTIES UNDER THE SAME IMMEDIATE SUPERVISION
AS PRIOR TO THE REORGANIZATION, THEY NO LONGER SHARE WITH THE IOWA AND
MINNESOTA EMPLOYEES THE SAME COMPETITIVE AREA OF CONSIDERATION FOR
PROMOTIONS OR THE SAME COMPETITIVE AREAS FOR REDUCTION-IN-FORCE
PROCEDURES. NOR DOES THE RECORD SHOW ANY SIGNIFICANT DEGREE OF
INTERCHANGE BETWEEN 89TH ARCOM EMPLOYEES AND THE EMPLOYEES LOCATED IN
MINNESOTA AND IOWA REPRESENTED BY THE AFGE.
BASED ON THE FOREGOING, I FIND THAT, SUBSEQUENT TO THE 1973
REORGANIZATION AND THE TRANSFER OF ADMINISTRATIVE AND PERSONNEL
FUNCTIONS FOR THE NEBRASKA EMPLOYEES FROM THE FIFTH TO THE SIXTH ARMY,
THE LATTER EMPLOYEES NO LONGER SHARE A CLEAR AND IDENTIFIABLE COMMUNITY
OF INTEREST WITH THE UNIT EMPLOYEES IN MINNESOTA AND IOWA WHO REMAINED
IN THE FIFTH ARMY AND WHO ARE SERVICED BY THE CPO AT FORT MCCOY. I FIND
ALSO THAT THE CONTINUED INCLUSION OF THE NEBRASKA EMPLOYEES IN THE
CERTIFIED UNIT WOULD ADVERSELY IMPAIR BOTH EFFECTIVENESS OF DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. IN THIS REGARD, IT IS NOTED THAT THE
AFGE'S NEGOTIATED AGREEMENT COVERS ONLY THE IOWA AND MINNESOTA
EMPLOYEES, THAT THE PARTIES CONSIDER THE NEBRASKA EMPLOYEES AS "SEVERED"
FROM THE EXCLUSIVELY RECOGNIZED UNIT, AND THAT EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS WOULD BE PROMOTED BY INCLUDING NEBRASKA
EMPLOYEES IN A UNIT WHICH WOULD COINCIDE WITH AN APPROPRIATE COMMAND
STRUCTURE WITHIN THE SIXTH ARMY.
UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE, HOWEVER, I SHALL
DISMISS THE SUBJECT RA PETITION. ALTHOUGH AN ELECTION PURSUANT TO AN RA
PETITION MAY BE DEEMED APPROPRIATE WHERE ONE OR MORE EXCLUSIVELY
RECOGNIZED UNITS HAVE BEEN COMBINED TO FORM A NEW UNIT CONTAINING
ESSENTIALLY ALL OF THE COMPONENTS OF THE PREVIOUSLY RECOGNIZED UNITS,
/4/ IN MY VIEW, SUCH AN ELECTION IN THE 89TH ARCOM, SIXTH ARMY, WOULD
NOT BE APPROPRIATE IN THE CIRCUMSTANCES HEREIN. WHILE 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 AND WERE
INCLUDED 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 INCLUDE EMPLOYEES WHO
HAVE BEEN UNREPRESENTED, SHOULD RESULT ONLY FROM PETITIONS FILED BY
LABOR ORGANIZATIONS SEEKING EXCLUSIVE RECOGNITION IN SUCH UNITS. /5/
ACCORDINGLY, WHILE PURSUANT TO THE 89TH ARCOM'S RA PETITION HEREIN, I
HAVE DETERMINED THE IMPACT OF THE INSTANT REORGANIZATION AND TRANSFER OF
PERSONNEL AND ADMINISTRATIVE FUNCTIONS ON THE UNIT REPRESENTED BY THE
AFGE, I FIND THAT THE PARTICULAR CIRCUMSTANCES HEREIN DO NOT WARRANT AN
ELECTION. THEREFORE, I SHALL DISMISS THE INSTANT RA PETITION.
ORDER
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 60-4995(RA) BE,
AND IT HEREBY IS, DISMISSED. /6/
DATED, WASHINGTON, D.C.
SEPTEMBER 21, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ ON MAY 10, 1972, PURSUANT TO A PETITION FOR AMENDMENT OF
CERTIFICATION, THE NAME OF THE EXCLUSIVE REPRESENTATIVE WAS AMENDED TO:
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3330.
/2/ THE 205TH INFANTRY BRIGADE SUBSEQUENTLY BECAME PART OF THE 88TH
ARMY RESERVE COMMAND AND THE 89TH DIVISION (TRAINING WAS DEACTIVATED IN
1975.
/3/ THE RECORD REFLECTS THAT OF THE APPROXIMATELY 293 CIVILIAN
EMPLOYEES EMPLOYED BY THE 89TH ARCOM, SOME 63 ARE LOCATED IN NEBRASKA
AND HAD BEEN INCLUDED IN THE AFGE'S BARGAINING UNIT.
/4/ CF. NAVY PUBLIC WORKS CENTER, SAN FRANCISCO BAY, A/SLMR NO.
628, AND IDAHO PANHANDLE NATIONAL FOREST, UNITED STATES DEPARTMENT OF
AGRICULTURE, A/SLMR NO. 394.
/5/ CF. UNITED STATES COAST GUARD AIR STATION, ETC., A/SLMR NO. 561.
AS NOTED AT FOOTNOTE 3, ABOVE, THE 89TH ARCOM EMPLOYS SOME 293 CIVILIAN
EMPLOYEES OF WHOM ONLY 63 WERE PREVIOUSLY WITHIN THE AFGE UNIT.
/6/ WHILE I HAVE DISMISSED THE RA PETITION IN THE SUBJECT CASE, IT IS
NOTED THAT SUCH FINDING DOES NOT PRECLUDE THE FILING OF AN APPROPRIATE
PETITION FOR AMENDMENT OF CERTIFICATION FOR THE UNIT IN WHICH THE AFGE
CONTINUES TO BE THE EXCLUSIVE REPRESENTATIVE, IN ORDER TO CONFORM THE
CERTIFICATION TO THE EXISTING CIRCUMSTANCES.
7 A/SLMR 900; P. 792; CASE NO. 22-6691(CA); SEPTEMBER 21, 1977.
SEPTEMBER 21, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
UNITED STATES EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
A/SLMR NO. 900
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2667 (COMPLAINANT)
ALLEGING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE
ORDER BY REFUSING TO BARGAIN WITH THE COMPLAINANT CONCERNING THE IMPACT
OF A REORGANIZATION ANNOUNCED ON SEPTEMBER 25, 1975.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT HAD NOT
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER. THE RESPONDENT
ANNOUNCED TENTATIVE REORGANIZATION PLANS IN NOVEMBER 1974, AND SOON
THEREAFTER PROVIDED THE COMPLAINANT WITH INFORMATION CONCERNING ITS
PLANS. SUBSEQUENT TO THE SEPTEMBER 25, 1975, ANNOUNCEMENT CONCERNING
THE REORGANIZATION OF THE RESPONDENT'S HEADQUARTERS ORGANIZATION AND
PRIOR TO ITS EFFECTIVE DATE, THE RESPONDENT, PURSUANT TO THE
COMPLAINANT'S REQUEST, SET UP SEVERAL MEETINGS WITH THE COMPLAINANT TO
DISCUSS THE IMPACT OF THE REORGANIZATION. THE COMPLAINANT WAS UNABLE TO
ATTEND THESE MEETINGS BECAUSE OF PRIOR COMMITMENTS. AFTER THE ANNOUNCED
EFFECTIVE DATE OF THE REORGANIZATION A MEETING WAS SCHEDULED FOR
NOVEMBER 4, 1975. AFTER A FURTHER REQUEST FROM THE COMPLAINANT ON
DECEMBER 16, 1975, THE RESPONDENT WROTE THE COMPLAINANT THREE TIMES -
DECEMBER 19, 1975, AND JANUARY 5 AND JANUARY 26, 1976 - REQUESTING
MEETINGS TO DISCUSS MATTERS CONCERNING THE REORGANIZATION. HOWEVER, ON
FEBRUARY 12, 1976, THE COMPLAINANT RESPONDED THAT IT WAS SUSPENDING
ATTEMPTS TO MEET AND CONFER WHILE THE RESPONDENT IMPLEMENTED CHANGES
"WITHOUT PRIOR CONSULTATION."
UNDER THESE CIRCUMSTANCES, THE ADMINISTRATIVE LAW JUDGE FOUND THAT
THE COMPLAINANT HAD NOT ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE
THAT THE RESPONDENT HAD FAILED TO FULFILL ITS OBLIGATION TO BARGAIN
ABOUT THE IMPLEMENTATION OF ITS PLANS AND WAS UNABLE TO DEMONSTRATE THAT
ANY IMPACT OCCURRED WITHOUT PRIOR BARGAINING BECAUSE IT IGNORED THE
RESPONDENT'S INVITATIONS TO DISCUSS THE MATTER ON DECEMBER 19, 1975, AND
JANUARY 5 AND JANUARY 26, 1976. ACCORDINGLY, HE FOUND THAT THE
RESPONDENT DID NOT VIOLATE SECTION 19(A)(1) AND (6) OF THE ORDER.
NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE ASSISTANT
SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
ADMINISTRATIVE LAW JUDGE, AND ORDERED THAT THE COMPLAINT BE DISMISSED IN
ITS ENTIRETY.
UNITED STATES EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
RESPONDENT
CASE NO. 22-6691(CA)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2667
COMPLAINANT
DECISION AND ORDER
ON JUNE 22, 1977, 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 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 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, AND NOTING PARTICULARLY
THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATION.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 22-6691(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 21, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
UNITED STATES EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
RESPONDENT
CASE NO. 22-6691(CA)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES LOCAL 2667
COMPLAINANT
LEROY B. CURTIS
CHIEF LABOR MANAGEMENT RELATIONS BRANCH
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
2401 E STREET, N.W.
WASHINGTON, D.C. 20506
FOR THE RESPONDENT
DAVID J. BUTLER
2401 E STREET, N.W.
WASHINGTON, D.C. 20506
FOR THE COMPLAINANT
BEFORE: JOHN H. FENTON
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO A COMPLAINT FILED BY COMPLAINANT ON FEBRUARY 19, 1976,
UNDER EXECUTIVE ORDER 11491, A NOTICE OF HEARING ON COMPLAINT WAS ISSUED
BY THE ACTING REGIONAL ADMINISTRATOR FOR THE PHILADELPHIA REGION ON
AUGUST 19, 1976. THE COMPLAINT ALLEGED THAT RESPONDENT VIOLATED
SECTIONS 19(A)(1) AND (6) OF THE ORDER BY REFUSING TO BARGAIN WITH
COMPLAINANT CONCERNING THE IMPACT OF A REORGANIZATION ANNOUNCED ON
SEPTEMBER 25, 1975.
A HEARING WAS HELD ON SEPTEMBER 27, 28 AND 29, 1976 IN WASHINGTON,
D.C. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE
AND CROSS-EXAMINE WITNESSES, TO INTRODUCE EVIDENCE BEARING UPON THE
ISSUES AND TO SUBMIT BRIEFS. ON THE BASIS OF THE ENTIRE RECORD, I MAKE
THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATIONS.
FINDINGS OF FACT
SINCE JULY 6, 1971, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, HAS BEEN THE CERTIFIED COLLECTIVE BARGAINING REPRESENTATIVE OF
A NATIONWIDE UNIT OF EEOCS EMPLOYEES. PURSUANT TO A MEMORANDUM OF
UNDERSTANDING SIGNED ON APRIL 28, 1975, HEADQUARTERS LOCAL 2667 WAS
RECOGNIZED AS THE REPRESENTATIVE OF ALL EMPLOYEES UNTIL SUCH TIME AS
OTHER LOCALS WERE "CHARTERED WITHIN EACH EEOC REGION". THAT MEMORANDUM
ALSO PROVIDED THAT LOCAL 3555 (NEW YORK) AND LOCAL 3599 (ATLANTA) "WILL
REPRESENT ALL OF THE UNIT EMPLOYEES LOCATED WITHIN THEIR RESPECTIVE
REGIONS". BY LETTER OF SEPTEMBER 18, 1975 FROM AFGES NATIONAL PRESIDENT
TO EEOC'S CHAIRMAN, AFGE OUTLINED ITS DELEGATION OF AUTHORITY TO
ADMINISTER ITS NATIONAL EXCLUSIVE RECOGNITION. PENDING THE CHARTERING
OF A COUNCIL, AUTHORITY TO DEAL WITH THE CHAIRMAN ON ALL MATTERS
NATIONAL IN SCOPE WAS TO RESIDE IN LOCAL 2667.
ALTHOUGH THERE IS MUCH BACKGROUND TO BE SET FORTH LATER, IT MAY BE
SAID THAT THE SERIES OF EVENTS WHICH LED TO THE COMPLAINT BEGAN WITH AN
ANNOUNCEMENT BY CHAIRMAN LOWELL W. PERRY ON SEPTEMBER 25, 1975. IN A
MEMO TO ALL EMPLOYEES HE SAID THAT CHANGES IN THE EXECUTIVE DIRECTOR'S
ORGANIZATIONAL STRUCTURE WERE BEING FORMULATED, THAT THE REORGANIZATION
WAS INTENDED TO ACHIEVE A REALIGNMENT OF THE HEADQUARTERS ORGANIZATION,
AND THAT THE DETAILS OF REORGANIZATION WOULD BE PUBLISHED UPON ITS
IMPLEMENTATION. FOUR DAYS LATER DORIS X. (MCGRUDER), PRESIDENT OF LOCAL
2667, WROTE LEROY B. CURTIS, CHIEF, LABOR MANAGEMENT RELATIONS BRANCH,
REQUESTING AS SOON AS POSSIBLE AND WELL IN ADVANCE OF IMPLEMENTATION, A
MEETING ABOUT THE PLANNED REORGANIZATION. ON OCTOBER 7 CURTIS
RESPONDED, SUGGESTING A MEETING ON OCTOBER 8, AT 10:00 A.M., IN THE
OFFICE OF PERSONNEL DIRECTOR BEVERLY GARY, "TO DISCUSS THE IMPACT OF THE
PENDING REORGANIZATION IN VARIOUS COMPONENTS OF HEADQUARTERS". MS. X.
(MCGRUDER) RESPONDED ON THE SAME DAY, NOTING A CONFLICT WITH A PRIOR
COMMITMENT AND REQUESTING ANOTHER DATE AS SOON AS POSSIBLE. ON OCTOBER
8, EXECUTIVE DIRECTOR B. G. MATHIS ISSUED EEOC NOTICE N-110, ANNOUNCING
THE REORGANIZATION OF HIS OFFICE. /1/ ALSO, APPARENTLY ON OCTOBER 7 OR
8, THE AGENCY RESCHEDULED THE MEETING WITH THE UNION TO OCTOBER 9 AT
2:00 P.M. ON THAT DAY PRESIDENT DORIS X. (MCGRUDER) INFORMED CURTIS BY
MEMO THAT SHE WOULD BE UNABLE TO ATTEND DUE TO A PREVIOUSLY SCHEDULED
MEETING "OF WHICH HE WAS AWARE". FINALLY, ON OCTOBER 30, THE UNION
CONFIRMED A MEETING FOR NOVEMBER 4.
THE EVIDENCE AS TO WHAT TRANSPIRED AT THE NOVEMBER 4 MEETING WAS
PRESENTED IN DOCUMENTS. A LETTER FROM UNION PRESIDENT DAVID BUTLER TO
CHAIRMAN LOWELL PERRY, DATED DECEMBER 16, RECITES THAT THE UNION AGAIN
COMPLAINED THAT IT HAD BEEN DENIED AN OPPORTUNITY, PRIOR TO THE OCTOBER
14 IMPLEMENTATION OF THE REORGANIZATION PLAN, TO MEET WITH MANAGEMENT
AND DISCUSS "THE METHODS TO BE ADOPTED OR THE IMPACT OF THE DECISION
UPON EMPLOYEES". (COMPLAINANT'S EXH. NO. 5). THE LETTER FURTHER STATES
THAT THE UNION UNSUCCESSFULLY REQUESTED INFORMATION WHICH IT NEEDED IN
ORDER TO ASSESS "THE POTENTIAL IMPACT THE REORGANIZATION MIGHT HAVE ON
EMPLOYEES". THE LETTER THEN WENT ON TO REQUEST THAT EEOC FREEZE
IMPLEMENTATION PENDING NEGOTIATION, DELIVER VOLUMINOUS INFORMATION, AND
IMMEDIATELY PLEDGE IN WRITING ITS COMMITMENT TO GOOD FAITH BARGAINING.
IN A MEMO "FOR THE RECORD" FROM LEROY CURTIS (AGENCY EXH. NO. 25), HE
INDICATED THAT THE RATIONALE FOR REORGANIZATION WAS EXPLAINED TO THE
UNION, THAT IT WAS INFORMED THAT IMPLEMENTATION HAD NOT TAKEN PLACE AND
COULD TAKE UP TO FIVE MONTHS TO COMPLETE. HE ALSO INDICATED THAT THE
UNION WAS CONCERNED WITH THE DIFFICULTY OF DEALING WITH THE NEW
STRUCTURE AND WITH THE QUESTION OF STEWARD ALIGNMENT AND GRIEVANCE
PROCESSING.
ON DECEMBER 19, MR. CURTIS REPLIED TO THE UNION'S LETTER, ADVISING
THAT A MEETING COULD BE ARRANGED TO DISCUSS THE MATTERS RAISED BY THE
UNION, AND STATING THAT HE AWAITED CONTACT BY THE UNION REGARDING THE
SCHEDULING OF SUCH A MEETING.
ON JANUARY 5, 1976, CURTIS WROTE BUTLER WITH RESPECT TO THE
ORGANIZATION OF THE OFFICE OF COMPLIANCE, TRANSMITTING CERTAIN DOCUMENTS
AND REQUESTING A MEETING TO DISCUSS IMPACT. ON JANUARY 26, CURTIS AGAIN
WROTE BUTLER ASKING THAT HE MEET ON THE FOLLOWING DAY TO DISCUSS THE
IMPACT OF THE REORGANIZATION. THE UNION FINALLY RESPONDED, SO FAR AS
THIS RECORD S4OWS, ON FEBRUARY 12, ANNOUNCING ITS DECISION TO "SUSPEND
ANY FURTHER ATTEMPT TO MEET IN GOOD FAITH AND NEGOTIATE AS REQUIRED
WHILE THE AGENCY CONTINUES TO IMPLEMENT CHANGES WITHOUT PRIOR
CONSULTATION", ON THE GROUND THAT IT HAD BEEN UNSUCCESSFUL IN ARRANGING
MEETINGS WITH MANAGEMENT CONCERNING THE REORGANIZATION. SEVEN DAYS
LATER IT FILED ITS COMPLAINT. THIS RECORD DISCLOSES NO REASON FOR THE
FAILURE OF THE PARTIES TO MEET AFTER NOVEMBER 4, 1975, NOTWITHSTANDING
SEVERAL INVITATIONS FROM THE AGENCY. /2/
RESPONDENTS' DEFENSE, IN ESSENCE, IS THAT IT HAD PROLONGED
DISCUSSION, BEGINNING AS EARLY AS DECEMBER 12, 1974, CONCERNING THE
PLANNED REORGANIZATION, THAT MUCH INFORMATION WAS MADE AVAILABLE OVER
THE MONTHS, THAT A FAILURE OF COMMUNICATION BETWEEN THE THREE SUCCESSIVE
PRESIDENTS OF LOCAL 2667 DURING MATERIAL TIMES LEFT THE LAST AND
PRESENTLY COMPLAINING ONE, BUTLER, WITH THE ERRONEOUS IMPRESSION THAT
CONSULTATION HAD NOT OCCURED, AND THAT BUTLER THEREFORE PRECIPITOUSLY
FILED A COMPLAINT RATHER THAN ACCEPTING RESPONDENT'S REPEATED OFFERS TO
CONSULT.
I CONCLUDE THAT RESPONDENTS' DEFENSE IS WELL TAKEN. LONG BEFORE ANY
DUTY TO BARGAIN CONCERNING IMPACT AROSE, IN FACT BEGINNING WITH THE
ANNOUNCEMENT OF RESPONDENT'S TENTATIVE REORGANIZATIONS PLANS IN 1974,
RESPONDENT VOLUNTARILY SHARED WITH THE UNION MUCH INFORMATION CONCERNING
ITS PLANS. ITS FIRST ANNOUNCEMENT IN 1974 PRECIPITATED THE FILING OF AN
UNFAIR LABOR PRACTICE CHARGE BY THEN PRESIDENT ALICIA COLUMNA, AND THERE
FOLLOWED CONSIDERABLE DISCUSSION AND EXCHANGE OF INFORMATION BEFORE THAT
CHARGE WAS WITHDRAWN IN JULY, 1975. IT IS PERHAPS SIGNIFICANT, AT LEAST
IN TERMS OF THE SPIRIT OF SUCH EXCHANGES, THAT COLUMNA, UPON LEAVING
OFFICE AS PRESIDENT OF LOCAL 2667 ON AUGUST 4, 1975, WROTE CURTIS
EXPRESSING HER "APPRECIATION FOR THE MANNER IN WHICH YOU AND YOUR OFFICE
HAS CONDUCTED LABOR-MANAGEMENT RELATIONS DURING . . . MY TENURE AS
PRESIDENT . . ." (AGENCY EXHIBIT 22). EXAMINATION OF THE VOLUMINOUS
DOCUMENTARY RECORD INTRODUCED BY THE AGENCY REVEALS THAT IT SUPPLIED
ENORMOUS QUANTITIES OF INFORMATION RELEVANT TO ITS PLANS TO REORGANIZE
AND TO CONVERT FROM EEO SPECIALIST TO GENERALIST IN THE ABSENCE OF ANY
LEGAL REQUIREMENT THAT IT DO SO AT THAT POINT IN TIME. I TAKE THIS AS
STRONG BACKGROUND EVIDENCE OF ITS DESIRE TO DEAL CONSTRUCTIVELY WITH
LOCAL 2667. /3/
CONCLUSIONS
I AM TROUBLED BY THE FACT THAT NO DISCUSSIONS ENSUED BETWEEN THE
SEPTEMBER 25, 1975 ANNOUNCEMENT OF REORGANIZATION AND ITS "EFFECTIVE
DATE" OF OCTOBER 14. HOWEVER, I FIND NO PERSUASIVE EVIDENCE THAT ANY
IMPLEMENTATION AFFECTING THE TERMS AND CONDITIONS OF EMPLOYMENT FOR
THOSE IN THE BARGAINING UNIT IN FACT OCCURRED. /4/ WHILE THE RECORD IS
A CONFUSING ONE, IT IS CLEAR THAT THE UNION THREE TIMES FILED CHARGES
ADDRESSED TO THE SAME ESSENTIAL REORGANIZATION PLAN. TWO WERE RESOLVED
AFTER EXTENSIVE CONSULTATION.
COMPLAINANT, OF COURSE, BEARS THE BURDEN OF PROOF. IT HAS IN MY
JUDGMENT NOT ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT THE
AGENCY FAILED TO FULFILL ITS OBLIGATION TO BARGAIN ABOUT THE
IMPLEMENTATION OF ITS PLANS AS THEY AFFECTED COMPLAINANT'S CONSTITUENCY.
COMPLAINANT WAS UNABLE TO DEMONSTRATE THAT ANY IMPACT OCCURRED WITHOUT
PRIOR BARGAINING BECAUSE IT IGNORED THE AGENCY'S INVITATIONS TO DISCUSS
THE MATTER IN MR. CURTIS' LETTERS OF DECEMBER 19, 1975, JANUARY 5, AND
JANUARY 26, 1976. INSTEAD OF RESPONDING AND ATTEMPTING TO SORT OUT
WHAT, IF ANY, BARGAINABLE IMPLEMENTATION WAS IN FACT TAKING PLACE, THE
UNION ON FEBRUARY 12 ABRUPTLY ANNOUNCED ITS DECISION TO SUSPEND ANY
FURTHER ATTEMPTS TO BARGAIN DURING WHAT IT ASSUMED TO BE THE AGENCY'S
ONGOING IMPLEMENTATION EFFORT. THE PROPOSED CHANGES WERE DESIGNED TO
AFFECT HIGHER MANAGEMENT LEVELS. THERE HAS BEEN NO SHOWING THAT THE
AGENCY EFFECTED CHANGES IN THE TERMS AND CONDITIONS OF RANK AND FILE
EMPLOYEES WITHOUT FIRST DISCUSSING SUCH IMPACT. THE CHANGE FROM EEO
SPECIALIST TO GENERALIST IS NOT EMBRACED IN THE COMPLAINT AND, IN ANY
EVENT, THE DECISION WAS MADE TO REWRITE THAT JOB DESCRIPTION AFTER THE
UNION WAS FULLY INFORMED AND FAILED TO DELIVER ANY INPUT FOR
MANAGEMENT'S CONSIDERATION. AS THE COMPLAINT WAS NEVER AMENDED IN THIS
RESPECT, AND THE SUBJECT WAS NOT ADEQUATELY LITIGATED, I DO NOT PASS ON
THE UNION'S CONTENTION THAT SUCH CHANGES HAVE TAKEN PLACE WITHOUT THE
REQUIRED CONSULTATION. WHILE A CENTRAL CONCERN OF THE UNION WAS WHAT IT
PERCEIVED AS A FORCED REALIGNMENT OF STEWARDS, OR THE CONFUSION WITH
RESPECT TO WHAT STEWARDS WERE TO DEAL WITH WHAT MANAGEMENT OFFICIALS IN
THE NEW CHAIN OF COMMAND THAT WAS VERY SLOWLY EVOLVING, I CANNOT FIND ON
THIS RECORD THAT THE AGENCY WAS UNWILLING TO DEAL CONSTRUCTIVELY WITH
SUCH PROBLEMS. THE DECISIVE FACT IS THAT COMPLAINANT NEVER PUT THE
AGENCY TO THE TEST IN THIS RESPECT; INSTEAD IT CALLED OFF BARGAINING.
THE CONSEQUENCE OF SUCH ACTION WAS THAT IT COULD NOT ESTABLISH THAT THE
AGENCY FAILED TO BARGAIN IN GOOD FAITH CONCERNING THE IMPLEMENTATION OF
ITS SCHEME, AS IT MIGHT AFFECT THOSE IN THE BARGAINING UNIT.
RECOMMENDATION
HAVING FOUND THAT RESPONDENT DID NOT FAIL TO MEET AND CONFER WITH
COMPLAINANT ON THE IMPACT AND IMPLEMENTATION OF ITS REORGANIZATION PLAN
IN VIOLATION OF SECTIONS 19(A)(1) AND (6) OF THE ORDER, I RECOMMEND THAT
THE ASSISTANT SECRETARY DISMISS THE COMPLAINT.
JOHN H. FENTON
ADMINISTRATIVE LAW JUDGE
DATED: JUNE 22, 1977
WASHINGTON, D.C.
/1/ NOTICE 110 (JT. EXH. NO. 2) ASSIGNED MISSIONS, DESIGNATED
ORGANIZATION AND POSITION TITLES AND OFFICE CODES, IDENTIFIED KEY
INCUMBENT OFFICIALS, AND CALLED FOR THE PREPARATION OF DETAILED
FUNCTIONAL STATEMENTS. ITS "EFFECTIVE DATE" WAS OCTOBER 14. ON OCTOBER
29, MR. MATHIS ISSUED A MEMORANDUM TO ALL REGIONAL DIRECTORS
ESTABLISHING GUIDELINES FOR THE CONVERSION OF EEO SPECIALIST
(INVESTIGATOR) POSITIONS TO GENERALIST POSITIONS (COMPLAINANT'S EXH.
NO. 14).
/2/ ONE MAY SURMISE THAT THE REASSIGNMENT OF PRESIDENT DORIS X.
(MCGRUDER), AND THE UNFAIR LABOR PRACTICE CHARGE ADDRESSED TO IT, SO
CHARGED THE ATMOSPHERE AS TO GRAVELY UNDERMINE ANY PROSPECT FOR FRIENDLY
AND THEREFORE USEFUL DISCUSSION. SEE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, A/SLMR NO. 707.
/3/ IN THIS RESPECT, THE RECORD INDICATES THAT LOCAL 2667 WAS
FURNISHED WITH A COPY OF THE PROPOSED GUIDELINES FOR CONVERSION TO THE
GENERALIST POSITION, WAS GIVEN UNTIL 5/30/75 TO COMMENT, AND FAILED EVER
TO DO SO.
/4/ I SHOULD GO FURTHER AND SAY THAT NO IMPLEMENTATION OF ANY KIND,
EVEN AS TO MATTERS WHICH WOULD NOT GIVE RISE TO A BARGAINING OBLIGATION,
OCCURRED PRIOR TO THE BREAK-OFF OF NEGOTIATIONS.
7 A/SLMR 899; P. 790; CASE NO. 40-7841(RO); SEPTEMBER 21, 1977.
SEPTEMBER 21, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND DIRECTION OF ELECTION OF THE
ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
NON-APPROPRIATED FUND ACTIVITY,
HEADQUARTERS, 24TH INFANTRY DIVISION,
FORT STEWART, GEORGIA
A/SLMR NO. 899
THIS CASE INVOLVED A REPRESENTATION PETITION FILED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1922, AFL-CIO (AFGE) SEEKING A
UNIT OF ALL NONPROFESSIONAL NON-APPROPRIATED FUND (NAF) ACTIVITY
EMPLOYEES AT THE HEADQUARTERS, 24TH INFANTRY DIVISION, FORT STEWART AND
HUNTER ARMY AIR FIELD, GEORGIA. THE PARTIES WERE IN AGREEMENT GENERALLY
AS TO THE SCOPE AND COMPOSITION OF THE CLAIMED UNIT BUT THE ACTIVITY
OPPOSED THE INCLUSION IN THE CLAIMED UNIT OF "INTERMITTENT" EMPLOYEES ON
THE BASIS THEY DO NOT SHARE A COMMUNITY OF INTEREST WITH REGULARLY
SCHEDULED EMPLOYEES AND THAT THEIR INCLUSION WOULD HAMPER EFFECTIVE
DEALINGS AND BE INIMICAL TO THE EFFICIENCY OF THE AGENCY'S OPERATIONS.
THE ASSISTANT SECRETARY, NOTING PARTICULARLY THE AGREEMENT OF THE
PARTIES AS TO THE SCOPE OF THE UNIT SOUGHT, FOUND THE CLAIMED UNIT TO BE
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION AS THE EMPLOYEES
INVOLVED SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AND THE
PROPOSED UNIT WOULD PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS.
THE ASSISTANT SECRETARY FOUND ALSO THAT THE "INTERMITTENT" EMPLOYEES
SHOULD BE INCLUDED IN THE UNIT FOUND APPROPRIATE. HE NOTED THAT THE
EMPLOYEES IN THIS CLASSIFICATION HAVE A REASONABLE EXPECTATION OF FUTURE
EMPLOYMENT; THAT A LARGE NUMBER OF THE "INTERMITTENT" EMPLOYEES WORK
FOR A SUBSTANTIAL PERIOD OF TIME DURING THE YEAR; AND THAT THE
"INTERMITTENT" EMPLOYEES SHARE WITH REGULAR FULL-TIME AND PART-TIME
EMPLOYEES COMMON SUPERVISION, PAY SCALES, JOB SUPERVISION, JOB
ASSIGNMENTS, WORKING CONDITIONS AND LABOR RELATIONS POLICIES.
THEREFORE, THE ASSISTANT SECRETARY CONCLUDED THAT THEY SHARE A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST WITH THE REGULAR FULL-TIME AND
REGULAR PART-TIME EMPLOYEES AND THEIR INCLUSION IN THE CLAIMED UNIT WITH
ALL OTHER NAF EMPLOYEES SUBJECT TO THE SAME LABOR RELATIONS AND
PERSONNEL POLICIES ADMINISTERED BY FORT STEWART'S CIVILIAN PERSONNEL
OFFICE WOULD PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS.
ACCORDINGLY, THE ASSISTANT SECRETARY DIRECTED THAT AN ELECTION BE
CONDUCTED IN THE UNIT FOUND APPROPRIATE.
NON-APPROPRIATED FUND ACTIVITY,
HEADQUARTERS, 24TH INFANTRY DIVISION,
FORT STEWART, GEORGIA /1/
ACTIVITY
CASE NO. 40-7841(RO)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1922, AFL-CIO
PETITION
DECISION AND DIRECTION OF ELECTION
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER ADAM J. CONTI.
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:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1922, AFL-CIO, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF
ALL NON-APPROPRIATED FUND (NAF) ACTIVITY EMPLOYEES EMPLOYED AT
HEADQUARTERS, 24TH INFANTRY DIVISION, FORT STEWART, AND HUNTER ARMY AIR
FIELD, GEORGIA, EXCLUDING PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY AND SUPERVISORS AS DEFINED IN THE ORDER. THE PARTIES
WERE IN AGREEMENT GENERALLY AS TO THE SCOPE AND COMPOSITION OF THE
CLAIMED UNIT. HOWEVER, THE ACTIVITY OPPOSED THE INCLUSION WITHIN THE
CLAIMED UNIT OF "INTERMITTENT" EMPLOYEES ON THE BASIS THAT THEY DO NOT
SHARE A COMMUNITY OF INTEREST WITH REGULARLY SCHEDULED EMPLOYEES AND
THAT THEIR INCLUSION WOULD HAMPER EFFECTIVE DEALINGS AND BE INIMICAL TO
THE EFFICIENCY OF THE AGENCY'S OPERATIONS.
THE RECORD INDICATES THAT FORT STEWART, HEREIN CALLED THE FORT, IS
THE HOME BASE OF THE 24TH INFANTRY DIVISION, AND THAT ITS PRIMARY
FUNCTION IS TO TRAIN AND HOUSE INFANTRY SOLDIERS. THE FORT ALSO SERVES
AS A TRAINING BASE FOR NATIONAL GUARD AND ARMY RESERVE FORCES. IN
ADDITION TO THE NAF EMPLOYEES LOCATED AT THE FORT, THE CLAIMED UNIT
INCLUDES EMPLOYEES OF THE NAF ACTIVITY AT ITS FACILITIES AT HUNTER ARMY
AIR FIELD, WHICH IS LOCATED SOME 35 MILES FROM THE FORT, AND WHICH
PROVIDES AIRBORNE SUPPORT FOR THE FORT. THE NAF ACTIVITY CONSISTS OF
FACILITIES WHOSE PURPOSE IS TO CONTRIBUTE TO THE MORALE, WELFARE AND
RECREATION OF THE MILITARY PERSONNEL OF THE UNITED STATES ARMY. AMONG
THE NAF ACTIVITY FACILITIES AVAILABLE AT THE FORT THERE IS AN OFFICERS
CLUB, A NON-COMMISSIONED OFFICERS CLUB (NCO), A TOP FIVE CLUB, A MORALE
SUPPORT FUND, AND A NURSERY.
THE PERSONNEL POLICIES AND PROCEDURES OF THE NAF ACTIVITY ARE
ESTABLISHED BY REGULATIONS AND DIRECTIVES OF THE UNITED STATES ARMY.
THE CIVILIAN PERSONNEL OFFICE (COP) OF THE FORT, WHICH HANDLES ALL
PERSONNEL MATTERS FOR THE NAF ACTIVITY, HAS THE AUTHORITY AND
RESPONSIBILITY FOR IMPLEMENTING THESE POLICIES AND PROCEDURES AND HAS
FINAL RESPONSIBILITY FOR ACTION WITH REGARD TO HIRING, FIRING, AND
PROMOTIONS. THE EMPLOYEES OF THE VARIOUS NAF ACTIVITIES NUMBER
APPROXIMATELY 340 AND INCLUDE SUCH JOB CLASSIFICATIONS AS WAITERS,
WAITRESSES, FOOD SERVICE WORKERS, AND BARTENDERS.
UNDER ALL OF THE CIRCUMSTANCES, AND NOTING PARTICULARLY THE AGREEMENT
OF THE PARTIES AS TO THE SCOPE OF THE UNIT SOUGHT, I FIND THAT THE
CLAIMED UNIT OF ALL NAF ACTIVITY EMPLOYEES EMPLOYED AT HEADQUARTERS,
24TH INFANTRY DIVISION, FORT STEWART AND HUNTER ARMY AIR FIELD, GEORGIA,
IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION AS THE EMPLOYEES
INVOLVED SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AND SUCH A
UNIT WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS.
INTERMITTENT EMPLOYEES
THE RECORD REVEALS THAT THE NAF ACTIVITY EMPLOYS APPROXIMATELY 193
EMPLOYEES IN POSITIONS WHICH ARE CLASSIFIED AS "INTERMITTENT." THE
DEPARTMENT OF ARMY'S REGULATIONS WITH RESPECT TO NAF CIVILIAN EMPLOYEES
DEFINE "INTERMITTENT" EMPLOYEES AS THOSE HAVING NO REGULARLY SCHEDULED
WORKWEEK OR A REGULARLY SCHEDULED WORKWEEK OF LESS THAN 20 HOURS A WEEK.
/2/ THE "INTERMITTENT" EMPLOYEES WITH NO REGULARLY SCHEDULED WORKWEEK
ARE ESSENTIALLY "ON CALL" EMPLOYEES, WHOSE EMPLOYMENT PATTERN WILL VARY
ACCORDING TO THE VAGARIES OF THE OPERATIONS SPONSORED BY THE NAF
ACTIVITY. THE RECORD REVEALS THAT WHEN THESE "ON-CALL" EMPLOYEES
DEVELOP A REGULAR WORK PATTERN, THEY ARE CONVERTED TO REGULAR FULL-TIME
OR PART-TIME STATUS, AS HAD HAPPENED IN FIVE INSTANCES IN THE SIX-MONTH
PERIOD PRIOR TO THE HEARING IN THIS MATTER. ALTHOUGH NOT ELIGIBLE FOR
ALL THE BENEFITS AVAILABLE TO REGULAR EMPLOYEES, ALL THE "INTERMITTENT"
EMPLOYEES RECEIVE THE SAME WORKMEN'S COMPENSATION, SOCIAL SECURITY, AND
SHIFT DIFFERENTIAL BENEFITS AS THE REGULAR FULL-TIME AND PART-TIME
EMPLOYEES RECEIVE, THEY SHARE THE SAME SUPERVISION, ARE ELIGIBLE FOR
SIMILAR PROMOTIONS, ARE ELIGIBLE FOR SIMILAR STEP INCREASES AND ARE
SUBJECT TO THE SAME LABOR RELATIONS POLICIES ADMINISTERED BY THE FORT'S
CPO.
UNDER ALL OF THE CIRCUMSTANCES, I FIND THAT THE "INTERMITTENT"
EMPLOYEES INVOLVED HEREIN SHOULD BE INCLUDED IN THE UNIT FOUND
APPROPRIATE. THUS, THE RECORD REFLECTS THAT EMPLOYEES IN THIS
CLASSIFICATION HAVE A REASONABLE EXPECTATION OF CONTINUED EMPLOYMENT;
THAT A LARGE NUMBER OF THE "INTERMITTENT" EMPLOYEES WORK FOR A
SUBSTANTIAL PERIOD OF TIME DURING THE YEAR; /3/ AND THAT THEY SHARE
WITH REGULAR FULL-TIME AND PART-TIME EMPLOYEES COMMON SUPERVISION, PAY
SCALES, JOB SUPERVISION, JOB ASSIGNMENTS, WORKING CONDITIONS AND LABOR
RELATIONS POLICIES. IN MY VIEW, THEREFORE, THEY SHARE A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST WITH THE REGULAR FULL-TIME AND
REGULAR PART-TIME EMPLOYEES AND THEIR INCLUSION IN THE CLAIMED UNIT WITH
ALL OTHER NAF EMPLOYEES SUBJECT TO THE SAME LABOR RELATIONS AND
PERSONNEL POLICIES ADMINISTERED BY THE FORT'S CPO WILL PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. /4/
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 NON-APPROPRIATED FUND ACTIVITY EMPLOYEES, INCLUDING INTERMITTENT
EMPLOYEES, EMPLOYED AT
HEADQUARTERS, 24TH INFANTRY DIVISION, FORT STEWART AND HUNTER ARMY
AIR FIELD, GEORGIA,
EXCLUDING PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL
WORK IN OTHER THAN A PURELY CLERICAL CAPACITY AND SUPERVISORS AS
DEFINED IN THE EXECUTIVE
ORDER.
DIRECTION OF ELECTION
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG EMPLOYEES IN
THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN 60
DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR 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 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 SHALL VOTE WHETHER OR NOT THEY
DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1922, AFL-CIO.
DATED, WASHINGTON, D.C.
SEPTEMBER 21, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THERE ARE ONLY TWO EMPLOYEES WITH REGULARLY SCHEDULED WORKWEEKS
OF LESS THAN 20 HOURS. AT THE HEARING, THE AFGE SOUGHT TO EXCLUDE FROM
THE CLAIMED UNIT THESE TWO "INTERMITTENT" EMPLOYEES. AS THEIR
EMPLOYMENT STATUS MEETS ALL OF THE INDICIA BY WHICH I HAVE INCLUDED ALL
OTHER "INTERMITTENT" EMPLOYEES IN THE UNIT FOUND APPROPRIATE, AND AS NO
ARGUMENT FOR THEIR EXCLUSION WAS PRESENTED, I WILL INCLUDE THEM IN THE
UNIT FOUND APPROPRIATE HEREIN.
/3/ THE RECORD REVEALS THAT IN A SIX MONTH PERIOD PRIOR TO THE
HEARING SOME 79 "INTERMITTENT" EMPLOYEES AVERAGED 15 HOURS OR MORE OF
WORK A WEEK AND SOME 71 "INTERMITTENT" EMPLOYEES AVERAGED BETWEEN 7 1/2
AND 15 HOURS OF WORK A WEEK.
/4/ SEE UNITED STATES ARMY INFANTRY CENTER, NON-APPROPRIATED FUND
ACTIVITY, FORT BENNING, GEORGIA, A/SLMR NO. 188.
7 A/SLMR 898; P. 788; CASE NO. 63-6552(CU); SEPTEMBER 20, 1977.
SEPTEMBER 20, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER CLARIFYING UNIT OF THE
ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
U.S. DEPARTMENT OF COMMERCE,
ECONOMIC DEVELOPMENT ADMINISTRATION,
AUSTIN, TEXAS
A/SLMR NO. 898
THIS CASE INVOLVED A UNIT CLARIFICATION PETITION FILED BY THE AUSTIN,
TEXAS, SOUTHWESTERN REGIONAL OFFICE OF THE ECONOMIC DEVELOPMENT
ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE. THE ACTIVITY/PETITIONER
SOUGHT CLARIFICATION OF THE STATUS OF SEVEN OF ITS EMPLOYEES CLASSIFIED
AS ECONOMIC DEVELOPMENT REPRESENTATIVES. IN THIS REGARD, IT CONTENDED
THAT THESE EMPLOYEES HAVE RECENTLY BEEN ASSIGNED ADDITIONAL DUTIES AS
SUPERVISORS WHICH WARRANT THEIR EXCLUSION FROM THE UNIT. THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3225, AFL-CIO, (AFGE)
CONTENDED THAT THE DISPUTED EMPLOYEES ARE NOT SUPERVISORS AND SHOULD
CONTINUE TO REMAIN IN THE UNIT.
THE ASSISTANT SECRETARY NOTED T4AT EACH ECONOMIC DEVELOPMENT
REPRESENTATIVE (EDR) HEADS A TWO PERSON AREA OFFICE, AND THAT THE EDRS'
DUTIES INCLUDE THE ANALYSIS, ASSIGNMENT, DIRECTION AND REVIEW OF WORK
PERFORMED BY THEIR SUBORDINATE EMPLOYEE, AN ECONOMIC DEVELOPMENT
ASSISTANT. HE ALSO NOTED THAT THE EDRS APPROVE THE LEAVE AND VACATIONS
OF THEIR ASSISTANTS, MAKE EFFECTIVE PERFORMANCE EVALUATIONS, ACT AS
FIRST LEVEL SUPERVISORS IN RESOLVING GRIEVANCES SUBJECT TO THEIR
AUTHORITY AND MAKE EFFECTIVE RECOMMENDATIONS AS TO THE HIRING OF THEIR
ASSISTANTS.
UNDER THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT
EMPLOYEES CLASSIFIED AS ECONOMIC DEVELOPMENT REPRESENTATIVE,
GS-301/12-13, ARE SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE
ORDER, AND SHOULD BE EXCLUDED FROM THE EXCLUSIVELY RECOGNIZED UNIT.
U.S. DEPARTMENT OF COMMERCE,
ECONOMIC DEVELOPMENT ADMINISTRATION,
AUSTIN, TEXAS
ACTIVITY/PETITIONER
CASE NO. 63-6552(CU)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3225, AFL-CIO
LABOR ORGANIZATION
DECISION AND ORDER CLARIFYING UNIT
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER WILLIAM J. AUTRY.
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 SUBMITTED BY
THE PARTIES, THE ASSISTANT SECRETARY FINDS:
THE ACTIVITY/PETITIONER, HEREINAFTER CALLED THE ACTIVITY SEEKS TO
CLARIFY THE STATUS OF SEVEN OF ITS EMPLOYEES CLASSIFIED AS ECONOMIC
DEVELOPMENT REPRESENTATIVES (EDRS). IN THIS REGARD, THE ACTIVITY
CONTENDS THAT THESE EMPLOYEES HAVE RECENTLY BEEN ASSIGNED ADDITIONAL
DUTIES AS SUPERVISORS WHICH WARRANT THEIR EXCLUSION FROM THE EXCLUSIVELY
RECOGNIZED UNIT. THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
3225, AFL-CIO, HEREINAFTER CALLED AFGE, CONTENDS THAT THE DISPUTED
EMPLOYEES ARE NOT SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE
ORDER AND SHOULD CONTINUE TO REMAIN IN THE UNIT. /2/
THE ECONOMIC DEVELOPMENT ADMINISTRATION (EDA) WAS ESTABLISHED IN 1965
BY THE SECRETARY OF COMMERCE TO CARRY OUT CERTAIN PROVISIONS OF THE
PUBLIC WORKS AND ECONOMIC DEVELOPMENT ACT OF 1965. THE PRIMARY FUNCTION
OF THE EDA IS THE LONG-RANGE ECONOMIC DEVELOPMENT OF AREAS WITH SEVERE
UNEMPLOYMENT AND LOW FAMILY INCOME PROBLEMS. THE EDA HAS SIX REGIONAL
OFFICES, ONE OF WHICH IS THE ACTIVITY HEREIN.
THE ACTIVITY IS RESPONSIBLE FOR OVERSEEING THE PERFORMANCE OF THE EDA
MISSION IN THE STATES OF ARKANSAS, LOUISIANA, NEW MEXICO, AND TEXAS.
WITHIN THE ACTIVITY, EACH OF SEVEN EDRS IS RESPONSIBLE FOR A PARTICULAR
GEOGRAPHIC AREA, WITH THE MISSION OF PROVIDING ASSISTANCE AND ACTING AS
A LIAISON BETWEEN THE ACTIVITY AND GRANT APPLICANTS, LOCAL GOVERNMENT
OFFICIALS, PLANNING ORGANIZATIONS AND STATE AGENCIES. THE EDRS ARE
STATIONED IN THE FOLLOWING AREA OFFICES: LUBBOCK, TEXAS; AUSTIN,
TEXAS; LAREDO, TEXAS; BATON ROUGE, LOUISIANA: SANTA FE, NEW MEXICO;
LITTLE ROCK, ARKANSAS; AND OKLAHOMA CITY, OKLAHOMA.
THE RECORD REVEALS THAT WHILE ALL EDRS REPORT TO THE ACTIVITY'S
DEPUTY DIRECTOR IN AUSTIN, TEXAS, EACH EDR GENERATES HIS OWN WORK AND
RESPONDS TO LOCAL REQUESTS FOR ASSISTANCE WITHOUT DETAILED SUPERVISION
FROM THE REGIONAL OFFICE; THAT ALL SEVEN EDRS WORK IN AREA OFFICES WITH
JUST ONE OTHER PERSON, THEIR ECONOMIC DEVELOPMENT ASSISTANT; AND THAT
THESE OFFICES, WITH ONE EXCEPTION, ARE ALL LOCATED SIGNIFICANT DISTANCES
FROM THE REGIONAL OFFICE WITH TELEPHONE COMMUNICATION BEING THE ONLY
REGULAR FORM OF CONTACT. THE ECONOMIC DEVELOPMENT ASSISTANTS WERE ALL
HIRED BETWEEN JANUARY 1976, AND JANUARY 1977, TO ASSIST THE EDR IN
FULFILLING THE MISSION OF THE AREA OFFICE. THEY PERFORM A VARIETY OF
PROGRAMMATIC, ADMINISTRATIVE AND CLERICAL TASKS.
AS INDICATED ABOVE, EACH OF THE SEVEN EDRS HEADS A TWO PERSON AREA
OFFICE WHICH CONSTITUTES AN OPERATIONAL UNIT FOR ADMINISTERING THE
PROGRAMS OF THE REGIONAL OFFICE WITHIN THEIR SPECIFIC GEOGRAPHIC AREAS.
THE RECORD REVEALS THAT THE EDRS' DUTIES INCLUDE THE ANALYSIS,
ASSIGNMENT, DIRECTION AND REVIEW OF WORK PERFORMED BY THE ECONOMIC
DEVELOPMENT ASSISTANT THROUGH THE EXERCISE OF INDEPENDENT JUDGMENT. THE
EDRS APPROVE THE LEAVE AND VACATIONS OF THEIR ASSISTANTS, MAKE EFFECTIVE
PERFORMANCE EVALUATIONS, AND ACT AS FIRST LEVEL SUPERVISORS IN RESOLVING
GRIEVANCES SUBJECT TO THEIR AUTHORITY. THE RECORD FURTHER REVEALS THAT
THE EDRS HAVE EFFECTIVELY RECOMMENDED THE HIRING OF THEIR ASSISTANTS.
UNDER THESE CIRCUMSTANCES, I FIND THAT EMPLOYEES CLASSIFIED AS
ECONOMIC DEVELOPMENT REPRESENTATIVE, GS-301/12-13, ARE SUPERVISORS
WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER AS THEY PERFORM
SUPERVISORY FUNCTIONS REQUIRING THE EXERCISE OF INDEPENDENT JUDGMENT
WITH REGARD TO THEIR ECONOMIC DEVELOPMENT ASSISTANTS. ACCORDINGLY, I
SHALL EXCLUDE THEM FROM THE EXCLUSIVELY RECOGNIZED UNIT.
ORDER
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, FOR
WHICH THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3225,
AFL-CIO, WAS CERTIFIED ON JULY 31, 1973, BE, AND HEREBY IS, CLARIFIED BY
EXCLUDING FROM SAID UNIT EMPLOYEES CLASSIFIED AS ECONOMIC DEVELOPMENT
REPRESENTATIVE, GS-301/12-13.
DATED, WASHINGTON, D.C.
SEPTEMBER 20, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ THE PETITION HEREIN LISTED ONLY SIX INDIVIDUALS IN THE
CLASSIFICATION SOUGHT TO BE CLARIFIED, WHILE AT THE HEARING TESTIMONY
WAS OFFERED AS TO SEVEN. IN THE ABSENCE OF OBJECTION OR CLAIM OF
PREJUDICE BY EITHER PARTY, I FIND THAT NO PREJUDICIAL ERROR WAS
COMMITTED IN ALLOWING TESTIMONY AS TO THE SEVENTH INDIVIDUAL.
/2/ IN JULY 1973, THE AFGE WAS CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE OF A UNIT OF THE ACTIVITY'S EMPLOYEES DESCRIBED AS: "ALL
NONSUPERVISORY PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES IN THE
SOUTHWESTERN REGIONAL OFFICE OF THE ECONOMIC DEVELOPMENT ADMINISTRATION"
WITH THE NORMAL EXCLUSIONS. THERE IS NO NEGOTIATED AGREEMENT BETWEEN
THE PARTIES.
7 A/SLMR 897; P. 782; CASE NO. 22-6504(CA); SEPTEMBER 19, 1977.
SEPTEMBER 19, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
INTERNAL REVENUE SERVICE
A/SLMR NO. 897
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 DENYING EMPLOYEES'
REQUESTS FOR UNION REPRESENTATION AT INTERVIEWS CONDUCTED BY INTERNAL
REVENUE SERVICE (IRS) INSPECTORS. A HEARING WAS SCHEDULED ON THIS
MATTER BUT WAS SUBSEQUENTLY POSTPONED PENDING ISSUANCE OF THE FEDERAL
LABOR RELATIONS COUNCIL'S (FLRC) MAJOR POLICY STATEMENT CONCERNING THE
REPRESENTATIONAL RIGHTS OF EMPLOYEES UNDER THE ORDER. UPON ISSUANCE OF
THE FLRC'S MAJOR POLICY STATEMENT, THE RESPONDENT FILED A MOTION TO
DISMISS ON THE BASIS THAT THE FLRC'S STATEMENT WAS DISPOSITIVE OF THE
ALLEGATIONS RAISED IN THE COMPLAINT. THE COMPLAINANT SUBSEQUENTLY
WITHDREW ALL THE ALLEGATIONS OF THE COMPLAINT WITH ONE EXCEPTION
INVOLVING AN EMPLOYEE WHO WAS INTERVIEWED AT ONE OF THE IRS DISTRICT
OFFICES.
THE ADMINISTRATIVE LAW JUDGE INITIALLY DETERMINED THAT, AS THERE WAS
NO FACTUAL DISPUTE INVOLVED HEREIN WHICH REQUIRED AN EVIDENTIARY
HEARING, A DETERMINATION OF THE ALLEGED UNFAIR LABOR PRACTICE COULD BE
MADE ON THE BASIS OF THE MAJOR POLICY STATEMENT, THE RESPONDENT'S MOTION
TO DISMISS, THE COMPLAINANT'S RESPONSE TO THE MOTION AND THE
RESPONDENT'S REPLY. THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE
INTERVIEW TO WHICH THE EMPLOYEE INVOLVED WAS CALLED WAS A NONFORMAL
INVESTIGATIVE INTERVIEW AND, AS SUCH, THE EMPLOYEE DID NOT HAVE THE
RIGHT UNDER SECTION 10(E) OF THE ORDER TO REPRESENTATION BY HIS
EXCLUSIVE REPRESENTATIVE. ACCORDINGLY, THE ADMINISTRATIVE LAW JUDGE
FOUND THAT THE RESPONDENT HAD NOT VIOLATED SECTION 19(A)(1) AND (6) OF
THE ORDER AND RECOMMENDED THAT THE COMPLAINT BE DISMISSED.
NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE ASSISTANT
SECRETARY ADOPTED THE FINDINGS AND RECOMMENDATION OF THE ADMINISTRATIVE
LAW JUDGE AND ORDERED THAT THE COMPLAINT BE DISMISSED.
INTERNAL REVENUE SERVICE
RESPONDENT
CASE NO. 22-6504(CA)
AND
NATIONAL TREASURY EMPLOYEES UNION
COMPLAINANT
DECISION AND ORDER
ON APRIL 13, 1977, ADMINISTRATIVE LAW JUDGE WILLIAM B. DEVANEY ISSUED
HIS REPORT AND RECOMMENDATION 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. NO EXCEPTIONS WERE FILED TO THE ADMINISTRATIVE LAW JUDGE'S
REPORT AND RECOMMENDATION. /1/
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE
ADMINISTRATIVE LAW JUDGE 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, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE
FILED, I HEREBY ADOPT THE ADMINISTRATIVE LAW JUDGE'S FINDINGS AND
RECOMMENDATION.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 22-6504(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 19, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ PURSUANT TO SECTION 203.23(B) OF THE ASSISTANT SECRETARY'S
REGULATIONS, THE ADMINISTRATIVE LAW JUDGE TRANSFERRED THIS CASE TO THE
ASSISTANT SECRETARY, ALONG WITH HIS REPORT AND RECOMMENDATION, WHICH WAS
BASED ON THE RESPONDENT'S MOTION TO DISMISS, THE COMPLAINANT'S RESPONSE
TO THE MOTION AND THE RESPONDENT'S REPLY. THE ADMINISTRATIVE LAW JUDGE
DETERMINED THAT AS THERE WAS NO FACTUAL DISPUTE INVOLVED HEREIN, AN
EVIDENTIARY HEARING WAS NOT REQUIRED.
IN THE MATTER OF
INTERNAL REVENUE SERVICE
RESPONDENT
CASE NO. 22-6504(CA)
AND
NATIONAL TREASURY EMPLOYEES UNION
COMPLAINANT
LINDA LIPSETT, ESQUIRE
ASSISTANT COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W.
SUITE 1101
WASHINGTON, D.C. 20006
FOR THE COMPLAINANT
MICHAEL SUSSMAN, ESQUIRE
ATTORNEY, OFFICE OF CHIEF COUNSEL
GENERAL LEGAL SERVICES DIVISION
BRANCH NO. 1 - ROOM 4568
INTERNAL REVENUE SERVICE
1111 CONSTITUTION AVENUE, N.W.
WASHINGTON, D.C. 20224
FOR THE RESPONDENT
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
REPORT AND RECOMMENDATION THAT MOTION TO DISMISS BE GRANTED
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED (HEREINAFTER
ALSO REFERRED TO AS THE "ORDER") AND WAS INITIATED BY A COMPLAINT DATED
OCTOBER 28, 1975, AND FILED NOVEMBER 3, 1975, WHICH ALLEGED VIOLATIONS
OF SECTIONS 19(A)(1) AND (6) OF THE ORDER BY VIRTUE OF RESPONDENT'S
DENIAL OF EMPLOYEE REQUESTS FOR THE PRESENCE OF UNION REPRESENTATION AT
INVESTIGATIVE INTERVIEWS. THE COMPLAINT ALLEGED SEPARATE, BUT SIMILAR,
VIOLATIONS AT THE CHICAGO DISTRICT OFFICE, AT THE BROOKHAVEN SERVICE
CENTER, HOLTSVILLE, NEW YORK, AND AT THE CHAMBLEE SERVICE CENTER,
CHAMBLEE, GEORGIA. ON OCTOBER 21, 1976, THE ACTING REGIONAL
ADMINISTRATOR ISSUED A NOTICE OF HEARING FOR A HEARING ON DECEMBER 8,
1976, IN WASHINGTON, D.C.; HOWEVER, ON NOVEMBER 3, 1976, THE HEARING WAS
POSTPONED AT THE REQUEST OF BOTH PARTIES AND ON NOVEMBER 12, 1976, CHIEF
ADMINISTRATIVE LAW JUDGE H. STEPHAN GORDON ENTERED AN ORDER, AT THE
REQUEST OF BOTH PARTIES, INDEFINITELY POSTPONING HEARING IN THIS MATTER
PENDING DECISION OF THE FEDERAL LABOR RELATIONS COUNCIL (HEREINAFTER
ALSO REFERRED TO AS THE "COUNCIL") ON MAJOR POLICY ISSUE.
THE COUNCIL ISSUED ITS STATEMENT ON MAJOR POLICY ISSUE, FLRC NO. 75
P-2, ON DECEMBER 2, 1976 (REPORT NO. 116, DEC. 2, 1976) AND ON FEBRUARY
4, 1977, A FURTHER NOTICE OF HEARING ISSUED FOR A HEARING ON APRIL 19,
1977, AT 10:00 A.M., ROOM 700, VANGUARD BUILDING, WASHINGTON, D.C. AND
THE UNDERSIGNED WAS DULY DESIGNATED TO HEAR AND DETERMINE THIS MATTER.
BY COVERING LETTER DATED FEBRUARY 10, 1977, RESPONDENT, PURSUANT TO
SECTION 203.19 OF THE REGULATIONS, FILED WITH THE ASSISTANT REGIONAL
ADMINISTRATOR A MOTION TO DISMISS. ON FEBRUARY 22, 1977, THE ACTING
REGIONAL ADMINISTRATOR ENTERED AN ORDER APPROVING COMPLAINANT'S REQUEST
FOR EXTENSION OF TIME TO FILE RESPONSE TO MOTION TO DISMISS AND EXTENDED
THE TIME FOR FILING SUCH RESPONSE TO FEBRUARY 28, 1977. COMPLAINANT
TIMELY FILED ITS RESPONSE, ENTITLED "UNION'S RESPONSE TO AGENCY'S MOTION
TO DISMISS", AND ON MARCH 7, 1977, RESPONDENT SUBMITTED TO THE ASSISTANT
REGIONAL ADMINISTRATOR ITS REPLY, ENTITLED "ACTIVITY'S REPLY TO UNION'S
RESPONSE TO MOTION TO DISMISS."
IN THE MEANTIME, COMPLAINANT'S NATIONAL PRESIDENT, MR. VINCENT L.
CONNERY, BY LETTER DATED MARCH 4, 1977, ADDRESSED TO THE ASSISTANT
SECRETARY FOR LABOR-MANAGEMENT RELATIONS, REQUESTED THE WITHDRAWAL OF
THE COMPLAINT AS TO THE ALLEGATIONS AGAINST THE BROOKHAVEN AND CHAMBLEE
SERVICE CENTERS, BUT NOT THE REMAINING ALLEGATION AGAINST RESPONDENT'S
CHICAGO DISTRICT OFFICE. BY LETTER DATED MARCH 28, 1977, ADDRESSED TO
CHIEF JUDGE GORDON, THE ACTING REGIONAL ADMINISTRATOR: A) APPROVED THE
WITHDRAWAL OF THE ALLEGATIONS WITH REGARD TO THE BROOKHAVEN AND CHAMBLEE
SERVICE CENTERS AND STATED THAT THE ONLY MATTER REMAINING FOR HEARING,
AS SCHEDULED FOR APRIL 19, 1977, INVOLVES THE CHICAGO DISTRICT OFFICE;
AND B) REFERRED, WITHOUT DECISION, RESPONDENT'S MOTION TO DISMISS,
COMPLAINANT'S RESPONSE, AND RESPONDENT'S REPLY TO UNION'S RESPONSE,
RECEIVED AFTER ISSUANCE OF THE FEBRUARY 4, 1977, NOTICE OF HEARING, FOR
DISPOSITION BY THIS OFFICE.
ALLEGATION OF THE COMPLAINT
ATTACHMENT 1 TO THE COMPLAINT, AS MATERIAL TO THE REMAINING
ALLEGATION, CONCERNING RESPONDENT'S CHICAGO DISTRICT OFFICE, READS, IN
PART, AS FOLLOWS:
"THE SUBSTANCE OF THIS COMPLAINT CONCERNS SEVERAL SITUATIONS (NOW
ONE) WHERE INTERNAL
REVENUE SERVICE EMPLOYEES WERE INTERROGATED BY IRS INSPECTORS.
INSPECTORS ARE EMPLOYED BY THE
IRS TO INVESTIGATE THE ACTIONS OF OTHER IRS EMPLOYEES. THE EMPLOYEES
(NOW ONE) INTERROGATED
BY THE INSPECTORS REASONABLY BELIEVED THAT THEY WOULD BE THE SUBJECT
OF DISCIPLINARY ACTION,
REQUESTED THE PRESENCE OF A REPRESENTATIVE AT THE INTERROGATION AND
THE REQUEST WAS DENIED
"CHARGE I: ON MARCH 14, 1975, MR. DONALD L. DISIER, AN IRS EMPLOYEE
IN THE CHICAGO
DISTRICT, WAS DIRECTED TO REPORT TO INSPECTION. MR. DISIER WAS
INTERROGATED BY INSPECTORS
SCHWEBBER AND SOMMERS ON MARCH 18, 19, AND 20, 1975.
"UPON ARRIVING AT THE PLACE OF INTERROGATION, MR. DISIER REQUESTED A
REPRESENTATIVE. HIS
REQUEST WAS DENIED. HE WAS TOLD HE WOULD HAVE A RIGHT TO A
REPRESENTATIVE ONLY IF A MIRANDA
WARNING WAS GIVEN /1/ . . . SINCE NO SUCH WARNING WAS GIVEN, MR.
DISIER HAD NO REPRESENTATIVE.
"MR. DISIER WAS SO UPSET AT THE INTERROGATION AND THE MANNER OF THE
INTERROGATION, THAT HE
RESIGNED . . . UPON SUBSEQUENT RECONSIDERATION, MR. DISIER WITHDREW
HIS RESIGNATION AND
PRESENTLY REMAINS AN IRS EMPLOYEE.
"WHEN MR. DISIER WAS SUMMONED TO INSPECTION, HE REASONABLY BELIEVED
HE MAY BE THE SUBJECT
OF DISCIPLINARY ACTION, HE REQUESTED A REPRESENTATIVE, AND THE
REQUEST WAS DENIED. SUCH AN
ACTION VIOLATED EXECUTIVE ORDER 11491, AS AMENDED."
MOTION TO DISMISS
THE SOLE BASIS ALLEGED IN THE COMPLAINT FOR AN UNFAIR LABOR PRACTICE
IS THAT "MR. DISIER WAS SUMMONED TO INSPECTION, HE REASONABLY BELIEVED
HE MAY BE THE SUBJECT OF DISCIPLINARY ACTION, HE REQUESTED A
REPRESENTATIVE, AND THE REQUEST WAS DENIED. SUCH ACTION VIOLATED
EXECUTIVE ORDER 11491, AS AMENDED." THIS IS FULLY CONFIRMED BY
COMPLAINANT'S RESPONSE TO RESPONDENT'S MOTIONS TO DISMISS. /2/ THE
ISSUE, ABOUT WHICH THERE IS NO FACTUAL DISPUTE REQUIRING RESOLUTION IN
AN EVIDENTIARY HEARING, IS WHETHER RESPONDENT VIOLATED SECTION 19(A)(1)
AND (6) OF THE ORDER BY ITS DENIAL OF MR. DISIER'S REQUEST FOR
REPRESENTATION AT AN INVESTIGATIVE INTERVIEW. RESPONDENT'S MOTION TO
DISMISS IS BASED, FOURSQUARE, ON THE COUNCIL'S STATEMENT ON MAJOR POLICY
ISSUE, FLRC NO. 75 P-2. COMPLAINANT HAS HAD FULL OPPORTUNITY TO RESPOND
TO RESPONDENT'S MOTION TO DISMISS AND HAS DONE SO. ACCORDINGLY, AS THE
SOLE QUESTION FOR DETERMINATION IS A QUESTION OF LAW, AS TO WHICH
PARTIES HAVE FULLY STATED THEIR RESPECTIVE VIEWS AND ARGUMENTS, AND AS
THERE IS NO DISPUTED QUESTION OF FACT REQUIRING AN EVIDENTIARY HEARING,
IT IS APPROPRIATE TO DETERMINE THE DISPUTE ON THE BASIS OF THE
COMPLAINT, RESPONDENT'S MOTION, COMPLAINANT'S RESPONSE AND RESPONDENT'S
REPLY. FOR REASONS SET FORTH HEREINAFTER, THE COUNCIL'S STATEMENT ON
MAJOR POLICY ISSUE, FLRC NO. 75 P-2, IS DISPOSITIVE AND THE DENIAL OF
MR. DISIER'S REQUEST FOR REPRESENTATION AT HIS INVESTIGATIVE INTERVIEW
DID NOT CONSTITUTE A VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER.
COMPLAINANT STATES, IN ITS RESPONSE TO RESPONDENT'S MOTION TO
DISMISS, THAT THE COUNCIL DECIDED THAT AN EMPLOYEE DOES NOT HAVE A
PROTECTED RIGHT UNDER EXECUTIVE ORDER 11491, AS AMENDED, TO ASSISTANCE
BY THE EXCLUSIVE REPRESENTATIVE WHEN HE IS SUMMONED TO AN INTERVIEW WITH
AGENCY MANAGEMENT; BUT ASSERTS THAT THE COUNCIL RESTED ITS DECISION ON
AN INTERPRETATION OF THE LAST SENTENCE OF SECTION 10(E) AND THAT THE
COUNCIL "DID NOT CONSIDER THE FACT THAT, READ TOGETHER, SECTION 1(A) AND
THE FIRST TWO SENTENCES IN SECTION 10(E) ESTABLISH A RIGHT OF AN
EMPLOYEE TO UNION REPRESENTATION IN INVESTIGATIVE INTERVIEWS WHOLLY
SEPARABLE FROM AN EMPLOYEE'S RIGHTS DERIVED FROM THOSE SITUATIONS
ENUMERATED IN THE LAST SENTENCE OF SECTION 10(E)." COMPLAINANT'S
ARGUMENT PROCEEDED:
"THE FIRST SENTENCE OF SECTION 10(E) PROVIDES THAT A LABOR
ORGANIZATION . . . IS ENTITLED
TO ACT FOR AND NEGOTIATE AGREEMENTS FOR EMPLOYEES IN THE UNIT. THESE
RIGHTS TO REPRESENT
EMPLOYEES ARE IN ADDITION TO THE RIGHT ALSO PROVIDED IN SECTION 10(E)
TO REPRESENT EMPLOYEES
IN FORMAL DISCUSSIONS.
"MOREOVER, THE SECOND SENTENCE OF SECTION 10(E) STATES THAT A UNION .
. . MUST REPRESENT
THE INTEREST OF ALL EMPLOYEES 'WITHOUT DISCRIMINATION AND WITHOUT
REGARD TO LABOR ORGANIZATION
MEMBERSHIP.'
"IN FORT WAINWRIGHT, SUPRA, THE ASSISTANT SECRETARY STATED THAT THIS
DUTY NOT ONLY REQUIRES
REPRESENTATION OF EMPLOYEES IN FORMAL DISCUSSIONS, BUT ALSO VESTS A
CORRESPONDING RIGHT IN AN
EMPLOYEE TO REQUEST UNION REPRESENTATION IN THOSE DISCUSSIONS.
"THEREFORE, SINCE AN EMPLOYEE HAS A VESTED RIGHT TO REQUEST UNION
REPRESENTATION AT FORMAL
MEETINGS AS A RESULT OF THE UNION'S DUTY TO REPRESENT ALL EMPLOYEES,
AN EMPLOYEE ALSO HAS A
RIGHT TO REQUEST A UNION TO 'ACT FOR' THIS EMPLOYEE AS STATED IN THE
FIRST SENTENCE OF SECTION
10(E)
". . . BASED ON THE RIGHTS VESTED IN AN EMPLOYEE BY BOTH SECTION 1(A)
AND SECTION 10(E), AN
EMPLOYEE CAN REQUEST THAT A UNION 'ACT FOR' OR REPRESENT HIM IN A
SITUATION WHERE DISCIPLINE
MAY BE IMPOSED. A DENIAL OF THAT RIGHT WOULD, THEREFORE, CLEARLY BE
A VIOLATION OF SECTION
19(A)(1) OF THE EXECUTIVE ORDER.
"THIS INTERPRETATION . . . IS NOT PRECLUDED BY THE COUNCIL'S
STATEMENT ON MAJOR POLICY
ISSUE SINCE THE COUNCIL EXPLICITLY CONSIDERED THE RIGHTS VESTED BY
SECTION 10(E) OF THE ORDER
AS DIVISIBLE FROM THOSE RIGHTS VESTED BY SECTION 1(A) OF THE ORDER .
. . THEREFORE THE INSTANT
CASE IS NOT WITHIN THE SCOPE OF THE COUNCIL'S DECISION."
COMPLAINANT'S SYLLOGISTIC ARGUMENT MUST BE REJECTED. WHILE ONLY THE
COUNCIL COULD SAY WHAT IT DID, OR DID NOT, CONSIDER IN REACHING ITS
STATEMENT ON MAJOR POLICY ISSUE, FLRC NO. 75 P-2, THE COUNCIL'S
STATEMENT MAKES IT ABUNDANTLY CLEAR THAT IT CONSIDERED TOGETHER THE
PROVISIONS OF SECTION 1(A) AND 10(E) OF THE ORDER, AS WELL AS OTHER
PORTIONS OF THE ORDER, INCLUDING THE PREAMBLE AND SECTION 7(D)(1).
INDEED, THE ISSUE BEFORE THE COUNCIL WAS:
"DOES AN EMPLOYEE IN A UNIT OF EXCLUSIVE RECOGNITION HAVE A PROTECTED
RIGHT UNDER THE ORDER
TO ASSISTANCE (POSSIBLY INCLUDING PERSONAL 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?"
THE FIRST TWO SENTENCES OF SECTION 10(E) DO, INDEED, TREAT THE RIGHTS
AND OBLIGATIONS OF THE EXCLUSIVE REPRESENTATIVE, BUT, AS THE COUNCIL
STATED,
"UNLIKE THE EXPRESS PROVISIONS RELATING TO FORMAL DISCUSSIONS,
SECTION 10(E) PROVIDES NO
RIGHT OF A UNION TO REPRESENTATION AT NONFORMAL MEETINGS OR
INTERVIEWS HELD BY MANAGEMENT WITH
AN EMPLOYEE (ABSENT AGREEMENT OF THE PARTIES (FOOTNOTE 4. OMITTED)
AND THEREFORE NO DERIVATION
OR COMPANION RIGHT OF AN EMPLOYEE TO SUCH ASSISTANCE OR
REPRESENTATION MAY BE PREDICATED ON
THAT SECTION OF THE ORDER. HOWEVER, THE QUESTION REMAINS WHETHER
SECTION 1(A) OF THE ORDER
MAY BE DEEMED TO GRANT AN EMPLOYEE ANY SUCH RIGHT TO REPRESENTATION
AT NONFORMAL MEETINGS OR
INTERVIEWS HELD BY MANAGEMENT WITH AN EMPLOYEE PARTICULARLY AT
NONFORMAL INVESTIGATIVE
INTERVIEWS CALLED BY MANAGEMENT WITH THE EMPLOYEE.
". . . IN OUR OPINION, THESE PROVISIONS (SECTION 1(A)) FAIL TO
ESTABLISH ANY RIGHT OF AN
EMPLOYEE TO UNION ASSISTANCE OR REPRESENTATION AT A NONFORMAL
INVESTIGATIVE INTERVIEW OR
MEETING CONDUCTED BY MANAGEMENT ON MATTERS OF INDIVIDUAL CONCERN TO
THAT PARTICULAR EMPLOYEE.
"CLEARLY, NOTHING IN THE LITERAL WORDING OF SECTION 1(A) REFERS
EITHER TO UNION ATTENDANCE
AT A MEETING OR INTERVIEW BETWEEN EMPLOYEES AND MANAGEMENT OR TO ANY
EMPLOYEE RIGHT TO REQUEST
SUCH UNION ATTENDANCE WHEN SUMMONED TO A MEETING OR INTERVIEW BY
MANAGEMENT. RATHER, THE
SUBJECT PROVISIONS ARE EXPRESSLY CONFINED TO THE EMPLOYEE'S RIGHT TO
ORGANIZE, BECOME A MEMBER
OF, AND SUPPORT, THAT ORGANIZATION, OR TO REFRAIN FROM ANY SUCH
ACTIVITY.
"MOREOVER, THE STATED PURPOSES OF THE ORDER WOULD NOT BE EFFECTUATED
BY AN INTERPRETATION
OF SECTION 1(A) TO AFFORD SUCH RIGHT OF AN EMPLOYEE TO UNION
ASSISTANCE OR REPRESENTATION AT A
NONFORMAL INVESTIGATIVE INTERVIEW MEETING REGARDING HIS OWN POSSIBLE
MISCONDUCT AND WITHOUT
IMMEDIATE SIGNIFICANCE TO THE EMPLOYMENT INTERESTS OF OTHER PERSONNEL
IN THE BARGAINING UNIT.
. . .
"FURTHERMORE, . . . A DETAILED FRAMEWORK OF STATUTES AND REGULATIONS
ALREADY PROTECT AN
EMPLOYEE IN THE FEDERAL PROGRAM AGAINST ARBITRARY ACTION BY AN AGENCY
WHEN SERIOUS MISCONDUCT
IS ALLEGED . . . CONSEQUENTLY, NO SUBSTANTIAL PURPOSE OF THE ORDER
WOULD BE SERVED BY AN
INTERPRETATION OF SECTION 1(A) TO INCLUDE THE RIGHT OF AN EMPLOYEE TO
UNION REPRESENTATION OR
ASSISTANCE AT A NONFORMAL INVESTIGATIVE INTERVIEW OR MEETING TO WHICH
HE IS CALLED BY
MANAGEMENT.
. . . .
"CONCLUSION
"ACCORDINGLY, AS SET FORTH ABOVE, WE FIND THAT:
"1. AN EMPLOYEE IN A UNIT OF EXCLUSIVE RECOGNITION HAS A PROTECTED
RIGHT UNDER THE LAST
SENTENCE OF SECTION 10(E) OF THE ORDER TO THE ASSISTANCE OR
REPRESENTATION BY THE EXCLUSIVE
REPRESENTATIVE, UPON THE REQUEST OF THE EMPLOYEE, WHEN HE IS SUMMONED
TO A FORMAL DISCUSSION
WITH MANAGEMENT CONCERNING GRIEVANCES, PERSONNEL POLICIES AND
PRACTICES, OR OTHER MATTERS
AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT; AND
"2. AN EMPLOYEE IN A UNIT OF EXCLUSIVE RECOGNITION DOES NOT HAVE A
PROTECTED RIGHT UNDER
THE ORDER TO ASSISTANCE OR REPRESENTATION AT A NONFORMAL
INVESTIGATIVE MEETING OR INTERVIEW TO
WHICH HE IS SUMMONED BY MANAGEMENT; BUT SUCH RIGHT MAY BE
ESTABLISHED THROUGH NEGOTIATIONS
CONDUCTED BY THE EXCLUSIVE REPRESENTATIVE AND THE AGENCY IN
ACCORDANCE WITH SECTION 11(A) OF
THE ORDER."
MR. DISIER WAS SUMMONED BY RESPONDENT TO A NONFORMAL INVESTIGATIVE
INTERVIEW, OR MEETING, REGARDING MR. DISIER'S OWN POSSIBLE MISCONDUCT,
I. E., HIS DEVIATE CONDUCT, WHICH WAS WITHOUT IMMEDIATE SIGNIFICANCE TO
THE EMPLOYMENT INTERESTS OF OTHER PERSONNEL IN THE BARGAINING UNIT, DID
NOT CONCERN A GRIEVANCE, PERSONNEL POLICIES OR PRACTICES, OR OTHER
MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT;
AND, AS THE COUNCIL HAS DETERMINED, MR. DISIER HAD NO PROTECTED RIGHT
UNDER THE ORDER TO ASSISTANCE OR REPRESENTATION AT SUCH INVESTIGATIVE
MEETING OR INTERVIEW AND THE DENIAL OF HIS REQUEST TO REPRESENTATION WAS
NOT A VIOLATION OF SECTION 19(A)(1) OR (6) OF THE ORDER.
COMPLAINANT NEXT ARGUES THAT THE NATURE OF THE INVESTIGATIVE MEETING,
OR INTERVIEW, CREATED A RIGHT TO REPRESENTATION. IT MAY BE ASSUMED THAT
MR. DISIER WAS DISTRAUGHT BY THE INVESTIGATION OF HIS DEVIATE CONDUCT;
BUT COMPLAINANT'S ARGUMENT BEGS THE QUESTION. EITHER HE HAD A RIGHT
UNDER THE ORDER TO REPRESENTATION AT THE INVESTIGATIVE INTERVIEW OR HE
DID NOT, AND THE COUNCIL HAS FIRMLY HELD THAT AN EMPLOYEE DOES NOT HAVE
A PROTECTED RIGHT UNDER THE ORDER TO ASSISTANCE OR REPRESENTATION AT A
NONFORMAL INVESTIGATIVE MEETING OR INTERVIEW TO WHICH HE IS SUMMONED BY
MANAGEMENT. IT NECESSARILY FOLLOWS THAT, AS MR. DISIER HAD NO PROTECTED
RIGHT UNDER THE ORDER TO REPRESENTATION, THE MANNER IN WHICH THE
INVESTIGATIVE INTERVIEW WAS CONDUCTED CREATED NO SUCH PROTECTED RIGHT
UNDER THE ORDER TO REPRESENTATION OR ASSISTANCE.
AS HAS BEEN STATED MANY TIMES, THE ORDER IS VERY LIMITED; IT DOES
NOT SEEK TO RIGHT ALL WRONGS; AND CONDUCT MAY BE HIGHLY OBJECTIONABLE
AND STILL NOT VIOLATE IN ANY MANNER THE PROVISIONS OF THE ORDER. AS THE
COUNCIL STATED IN FLRC NO. 75 P-2, "A DETAILED FRAMEWORK OF STATUTES AND
REGULATIONS ALREADY PROTECTS AN EMPLOYEE IN THE FEDERAL PROGRAM AGAINST
ARBITRARY ACTION BY AN AGENCY WHEN SERIOUS MISCONDUCT IS ALLEGED."
FOR THE FOREGOING REASONS, AS THE EMPLOYEE, MR. DISIER, HAD NO
PROTECTED RIGHT UNDER THE ORDER TO ASSISTANCE OR REPRESENTATION AT THE
NONFORMAL INVESTIGATIVE MEETING OR INTERVIEW TO WHICH HE WAS SUMMONED BY
RESPONDENT, RESPONDENT'S DENIAL OF HIS REQUEST FOR SUCH REPRESENTATION
DID NOT VIOLATED SECTION 19(A)(1) OR (6) OF THE ORDER. STATEMENT ON
MAJOR POLICY ISSUE, FLRC NO. 75 P-2 (REPORT NO. 116, DECEMBER 2, 1976);
DEPARTMENT OF THE NAVY, NAVAL AIR REWORK FACILITY, ALAMEDA, CALIFORNIA,
A/SLMR NO. 781 (1977); UNITED STATES ARMY TRAINING CENTER ENGINEER AND
FORT LEONARD WOOD, A/SLMR NO. 787 (1977); SOCIAL SECURITY
ADMINISTRATION, GREAT LAKES PROGRAM CENTER, CHICAGO, ILLINOIS, A/SLMR
NO. 804 (1977).
ACCORDINGLY, IT WILL BE RECOMMENDED THAT RESPONDENT'S MOTION TO
DISMISS BE GRANTED. IN VIEW OF THE RECOMMENDED DISPOSITION OF THIS
MATTER, THE HEARING, NOW SET FOR APRIL 19, 1977, HAS, BY SEPARATE ORDER
ISSUED THIS DAY, BEEN CANCELLED.
RECOMMENDATION
HAVING FOUND THAT RESPONDENT'S DENIAL OF THE REQUEST OF AN EMPLOYEE,
MR. DISIER, FOR REPRESENTATION OR ASSISTANCE AT A NONFORMAL
INVESTIGATIVE MEETING OR INTERVIEW TO WHICH THE EMPLOYEE, MR. DISIER,
WAS SUMMONED BY RESPONDENT DID NOT VIOLATE SECTION 19(A)(1) OR (6) OF
EXECUTIVE ORDER 11491, AS AMENDED, FOR THE REASON, AS DETERMINED BY THE
COUNCIL IN STATEMENT ON MAJOR POLICY ISSUE, FLRC NO. 75 P-2, THAT AN
EMPLOYEE IN A UNIT OF EXCLUSIVE RECOGNITION DOES NOT HAVE A PROTECTED
RIGHT UNDER THE ORDER TO ASSISTANCE OR REPRESENTATION AT A NONFORMAL
INVESTIGATIVE MEETING OR INTERVIEW, IT IS RECOMMENDED THAT THE COMPLAINT
HEREIN BE DISMISSED IN ITS ENTIRETY.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: APRIL 13, 1977
WASHINGTON, D.C.
/1/ MR. DISIER'S STATEMENT, EXHIBIT 2, STATED, IN PART,
"I WAS TOLD BY INSPECTOR SCHWEBBER THAT I WAS NOT ENTITLED TO ANY
REPRESENTATION AS WE WERE
NOT DISCUSSING ANY CRIMINAL MATERIAL AND THAT THE ONLY WAY I WOULD BE
ENTITLED TO AN ATTORNEY
WOULD BE THAT IF AT ANY TIME I WAS ADVISED BY INSPECTORS OF MY RIGHTS
UNDER THE MIRANDA
WARNING."
/2/ IN ITS RESPONSE, COMPLAINANT STATED, IN PART, AS FOLLOWS:
"THE CHARGE WAS BASED ON THE FACT THAT DURING MARCH, 1975 INDIVIDUAL
EMPLOYEES IN THOSE
ACTIVITIES HAD BEEN SIMILARLY INTERROGATED BY IRS INSPECTORS AND,
REASONA4LY BELIEVING THEY
WOULD BE THE SUBJECT OF DISCIPLINARY ACTION, HAD REQUESTED AND BEEN
DENIED THE PRESENCE OF A
REPRESENTATIVE AT THEIR INTERROGATION." (RESPONSE, P. 1)
COMPLAINANT THEN ARGUES: A) 75 P-2 IS DISTINGUISHABLE BECAUSE THE
COUNCIL DID NOT CONSIDER TOGETHER SECTION 1(A) AND THE FIRST TWO
SENTENCES IN SECTION 10(E); AND B) THE COUNCIL DID NOT CONSIDER THE
TYPE OF INVESTIGATIVE INTERVIEWS INVOLVING MR. DISIER, WHICH COMPLAINT
ASSERTS WAS OUTRAGEOUS. NEVERTHELESS, COMPLAINANT AFFIRMS THAT THE SOLE
BASIS FOR THE ALLEGED VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER
WAS THE DENIAL OF MR. DISIER'S REQUEST FOR REPRESENTATION AT THE
INVESTIGATIVE INTERVIEW CONCERNING MR. DISIER'S DEVIATE CONDUCT.
7 A/SLMR 896; P. 775; CASE NO. 50-13162(CO); SEPTEMBER 19, 1977.
SEPTEMBER 19, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
LOCAL R7-51, NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES (NAGE)
A/SLMR NO. 896
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY AN
INDIVIDUAL AGAINST THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
LOCAL R7-51 (RESPONDENT). ESSENTIALLY, THE COMPLAINANT ALLEGED THAT THE
RESPONDENT VIOLATED SECTION 19(B)(1) OF THE ORDER BASED ON THE CONDUCT
OF THE RESPONDENT'S PRESIDENT IN REFUSING TO PROCESS HIS GRIEVANCES AND
BY DENYING HIM REPRESENTATION OF HIS CHOICE.
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE COMPLAINT BE
DISMISSED. IN REACHING THIS CONCLUSION, HE FOUND, AMONG OTHER THINGS,
THAT THERE WAS INSUFFICIENT EVIDENCE TO ESTABLISH THAT THE RESPONDENT
FAILED TO PROCESS THE COMPLAINANT'S GRIEVANCES CONSISTENTLY WITH THE
TERMS OF THE NEGOTIATED GRIEVANCE PROCEDURE.
THE ASSISTANT SECRETARY ADOPTED THE ADMINISTRATIVE LAW JUDGE'S
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS. HE NOTED THAT AN EXCLUSIVE
REPRESENTATIVE'S RESPONSIBILITY TO FAIRLY REPRESENT UNIT EMPLOYEES IN
THE PROCESSING OF GRIEVANCES UNDER A NEGOTIATED PROCEDURE DOES NOT
PROVIDE SUCH EMPLOYEES WITH AN ABSOLUTE RIGHT TO HAVE EACH AND EVERY
GRIEVANCE PROCESSED ON THEIR BEHALF BY THE LABOR ORGANIZATION. RATHER,
THE EXCLUSIVE REPRESENTATIVE MUST BE ALLOWED FULL PLAY TO EXERCISE ITS
OWN DISCRETION AND JUDGMENT TO, AMONG OTHER THINGS, PREVENT FRIVOLOUS
GRIEVANCES, PROTECT THE INTEGRITY OF THE UNION, AND PROVIDE CONSISTENCY
IN THE TREATMENT OF GRIEVANCES. THE ASSISTANT SECRETARY FURTHER NOTED
THAT THE DUTY OF FAIR REPRESENTATION IS BREACHED ONLY WHEN THE EXCLUSIVE
REPRESENTATIVE'S CONDUCT IS ARBITRARY, DISCRIMINATORY, OR IN BAD FAITH.
AS THE COMPLAINANT FAILED TO ESTABLISH BY A PREPONDERANCE OF THE
EVIDENCE THAT THE RESPONDENT HEREIN WAS ARBITRARY, DISCRIMINATORY OR
ACTING IN BAD FAITH IN ITS DECISION NOT TO PROCESS HIS GRIEVANCES AS A
UNION MATTER, AND AS THE RESPONDENT THEREAFTER PROVIDED REPRESENTATION
CONSISTENT WITH ITS CONTRACTUAL OBLIGATIONS AND DID NOT PREVENT THE
COMPLAINANT FROM PROCESSING HIS GRIEVANCES IN HIS OWN BEHALF, THE
ASSISTANT SECRETARY CONCLUDED THAT THE RESPONDENT'S CONDUCT WAS NOT
VIOLATIVE OF SECTION 19(B)(1) OF THE ORDER. ACCORDINGLY, HE ORDERED
THAT THE COMPLAINT BE DISMISSED.
LOCAL R7-51, NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES (NAGE)
RESPONDENT
CASE NO. 50-13162(CO)
AND
CHARLES A. QUILICO (AN INDIVIDUAL)
COMPLAINANT
DECISION AND ORDER
ON APRIL 7, 1977, ADMINISTRATIVE LAW JUDGE LOUIS SCALZO ISSUED HIS
RECOMMENDATION 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 RECOMMENDATION 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 RECOMMENDATION AND
ORDER, AND THE ENTIRE RECORD IN THE SUBJECT CASE, /1/ INCLUDING THE
COMPLAINANT'S EXCEPTIONS AND SUPPORTING BRIEF, I HEREBY ADOPT THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, AS
INDICATED HEREIN.
UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE, I AGREE WITH THE
ADMINISTRATIVE LAW JUDGE THAT THE RESPONDENT DID NOT REFUSE TO PROCESS
THE COMPLAINANT'S GRIEVANCES OR DENY REPRESENTATION TO THE COMPLAINANT
IN VIOLATION OF SECTION 19(B)(1) OF THE ORDER.
THE RECORD INDICATES THAT ON MARCH 17, 1976, WHEN THE RESPONDENT'S
PRESIDENT "REJECTED" THE COMPLAINANT'S GRIEVANCES AND RELIEVED HIM OF
HIS STEWARD'S DUTIES, SUCH ACTION REFLECTED MERELY A DECISION BY THE
RESPONDENT NOT TO PROCESS THE GRIEVANCES INVOLVED HEREIN AND WAS NOT
INTENDED TO PRECLUDE SUCH REPRESENTATION AS THE COMPLAINANT WAS
OTHERWISE ENTITLED TO UNDER THE NEGOTIATED AGREEMENT OR TO PREVENT HIM
FROM PROCESSING THE GRIEVANCES ON HIS OWN BEHALF IF HE SO DESIRED. /2/
MOREOVER, SUBSEQUENT TO MARCH 17, THE RESPONDENT, WHILE NOT APPROVING
USE OF A PRIVATE ATTORNEY ON THE COMPLAINANT'S BEHALF, PARTICIPATED IN
AND APPROVED OF ARRANGEMENTS TO HAVE ITS NATIONAL VICE PRESIDENT
REPRESENT THE COMPLAINANT. THEREAFTER, WHEN THE COMPLAINANT DECIDED
AGAINST HAVING THE NATIONAL VICE PRESIDENT REPRESENT HIM AND PROCEEDED
TO REPRESENT HIMSELF AT THE SECOND STEP CONSIDERATION OF HIS GRIEVANCES
ON JULY 15, 1976, THE RESPONDENT INTERPOSED NO OBSTACLE.
AN EXCLUSIVE REPRESENTATIVE'S RESPONSIBILITY TO FAIRLY REPRESENT UNIT
EMPLOYEES IN THE PROCESSING OF GRIEVANCES UNDER A NEGOTIATED PROCEDURE
DOES NOT PROVIDE SUCH EMPLOYEES WITH AN ABSOLUTE RIGHT TO HAVE EACH AND
EVERY GRIEVANCE PROCESSED ON THEIR BEHALF BY THE LABOR ORGANIZATION.
/3/ RATHER, THE DISCRETION AND JUDGMENT OF THE EXCLUSIVE REPRESENTATIVE
MUST BE ALLOWED FULL PLAY TO, AMONG OTHER THINGS, PREVENT FRIVOLOUS
GRIEVANCES, PROTECT THE INTEGRITY OF THE UNION, AND PROVIDE CONSISTENCY
IN THE TREATMENT OF GRIEVANCES. THIS DUTY OF FAIR REPRESENTATION IS
BREACHED ONLY WHEN THE EXCLUSIVE REPRESENTATIVE'S CONDUCT IS ARBITRARY,
DISCRIMINATORY, OR IN BAD FAITH. AS THE COMPLAINANT IN THE INSTANT CASE
HAS FAILED TO ESTABLISH BY A PREPONDERANCE OF THE EVIDENCE THAT THE
RESPONDENT WAS ARBITRARY, DISCRIMINATORY OR ACTING IN BAD FAITH IN ITS
DECISION NOT TO PROCESS HIS GRIEVANCES AS A UNION MATTER, AND AS THE
RESPONDENT THEREAFTER PROVIDED HIM WITH SUCH REPRESENTATION AS WAS
CONSISTENT WITH ITS CONTRACTUAL OBLIGATIONS AND DID NOT PREVENT HIM FROM
PROCESSING HIS GRIEVANCES ON HIS OWN BEHALF, I FIND THAT THE
RESPONDENT'S CONDUCT HEREIN WAS NOT VIOLATIVE OF SECTION 19(B)(1) OF THE
ORDER AND I SHALL DISMISS THE COMPLAINT HEREIN.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 50-13162(CO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 19, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ THE ADMINISTRATIVE LAW JUDGE INADVERTANTLY FAILED TO FORMALLY
INTRODUCE THE COMPLAINT IN THIS MATTER INTO THE RECORD. SUCH
INADVERTANCE IS HEREBY CORRECTED.
/2/ SECTION 3, ARTICLE XXXIII OF THE NEGOTIATED AGREEMENT PROVIDES:
EMPLOYEES USING THIS PROCEDURE WILL BE REPRESENTED BY THE UNION OR AN
INDIVIDUAL APPROVED
BY THE UNION EXCEPT IN SITUATIONS WHERE THE EMPLOYEE DESIRES TO SEEK
AN ADJUSTMENT OF HIS
GRIEVANCE WITHOUT THE INTERVENTION OF THE UNION.
SEE ALSO THE FEDERAL LABOR RELATIONS COUNCIL'S REPORT AND
RECOMMENDATIONS (1971), PART B, AND THE FEDERAL LABOR RELATIONS
COUNCIL'S INFORMATION ANNOUNCEMENT, MARCH 22, 1972, QUESTION AND ANSWER
NO. 8, 1 FLRC 669, AT 671.
/3/ SEE UNITED STATES DEPARTMENT OF THE NAVY, NAVAL ORDINANCE
STATION, LOUISVILLE, KENTUCKY, A/SLMR NO. 400 AT FOOTNOTE 5, FLRC NO.
74A-54.
IN THE MATTER OF
LOCAL R7-51, NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES (NAGE)
RESPONDENT
CASE NO. 50-13162(CO)
AND
CHARLES A. QUILICO (AN INDIVIDUAL)
COMPLAINANT
JAMES WILBANKS, PRESIDENT
LOCAL R7-51, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
BUILDING 106, GREAT LAKES NAVAL BASE
GREAT LAKES, ILLINOIS 60088
FOR THE RESPONDENT
WILLIAM STABEN
3006 PADDOCK STREET
WAUKEGAN, ILLINOIS 60085
FOR THE COMPLAINANT
BEFORE: LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
RECOMMENDATION AND ORDER
STATEMENT OF THE CASE
THIS PROCEEDING WAS INITIATED UPON THE FILING OF A COMPLAINT ON JUNE
24, 1976, ALLEGING A VIOLATION OF SECTION 19(B)(1)(2) AND (3) OF
EXECUTIVE ORDER 11491, AS AMENDED, (HEREINAFTER REFERRED TO AS THE
ORDER), BY CHARLES A. QUILICO, (HEREINAFTER REFERRED TO AS THE
COMPLAINANT) AGAINST LOCAL R7-51, NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES (HEREINAFTER REFERRED TO AS THE RESPONDENT OR UNION), A LABOR
ORGANIZATION REPRESENTING PUBLIC WORKS CENTER (NPWC), GREAT LAKES NAVAL
BASE, GREAT LAKES, ILLINOIS.
ON DECEMBER 9, 1976, THE REGIONAL ADMINISTRATOR, LABOR MANAGEMENT
SERVICES ADMINISTRATION, CHICAGO REGION ISSUED A DECISION DISMISSING THE
PORTION OF THE COMPLAINT WHICH ALLEGED VIOLATION OF SECTIONS 19(B)(2)
AND (3) OF THE ORDER, AND ON DECEMBER 27, 1976, THE PERIOD FOR FILING A
REQUEST FOR REVIEW WITH THE ASSISTANT SECRETARY EXPIRED WITH NO SUCH
REQUEST BEING FILED. ON JANUARY 11, 1977, A NOTICE OF HEARING BASED ON
THE ALLEGED VIOLATION OF SECTION 19(B)(1) OF THE ORDER, WAS ISSUED BY
THE REGIONAL ADMINISTRATOR. PURSUANT THERETO, A HEARING WAS HELD IN
CHICAGO, ILLINOIS ON MARCH 3, 1977. BOTH PARTIES WERE PRESENT AT THE
HEARING AND WERE AFFORDED FULL OPPORTUNITY TO CALL AND EXAMINE
WITNESSES, ADDUCE RELEVANT EVIDENCE, AND FILE BRIEFS.
WITH RESPECT TO THE ALLEGED VIOLATION OF SECTION 19(B)(1), THE
COMPLAINANT, AN ELECTRICIAN EMPLOYED BY NPWC, CHARGED THAT THE BEHAVIOR
OF JAMES WILBANKS, PRESIDENT OF THE RESPONDENT UNION, TOWARD THE
COMPLAINANT AND COMPLAINANT'S ACTIVITIES AS A UNION STEWARD HAD THE
EFFECT OF INTERFERING, RESTRAINING, OR COERCING COMPLAINANT IN THE
EXERCISE OF HIS RIGHTS ASSURED BY THE ORDER.
IT WAS ALLEGED THAT A SERIES OF GRIEVANCES INITIATED BY THE
COMPLAINANT AGAINST NPWC WERE NOT PROCESSED BY THE UNION IN ACCORDANCE
WITH A NEGOTIATED AGREEMENT ENTERED INTO BY THE NPWC AND THE RESPONDENT
UNION, AND FURTHER THAT THE COMPLAINANT WAS DENIED REPRESENTATION BY THE
RESPONDENT UNION AS PROVIDED BY SECTION 10(E) OF THE ORDER. THESE
ALLEGATIONS WERE DENIED BY THE RESPONDENT.
UPON THE ENTIRE RECORD AND MY OBSERVATION OF THE WITNESSES AND THEIR
DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS
TO THE ASSISTANT SECRETARY.
FINDINGS OF FACT
GRIEVANCE PROCEDURE OUTLINED
THE NEGOTIATED AGREEMENT HEREIN INVOLVED PROVIDES A FOUR-STEP
GRIEVANCE PROCEDURE. (COMPLAINANT'S EXHIBIT 3). THE FIRST STEP
CONTEMPLATES THAT AN AGGRIEVED EMPLOYEE WILL DISCUSS GRIEVANCES AT THE
LOWEST APPROPRIATE SUPERVISORY LEVEL. THE EMPLOYEE MAY BE REPRESENTED
OR ACCOMPANIED BY HIS SHOP STEWARD OR IN HIS ABSENCE, ANOTHER STEWARD
DESIGNATED BY THE UNION.
IF NOT SATISFACTORY SETTLEMENT IS REACHED DURING STEP ONE, THE
EMPLOYEE MUST REDUCE THE GRIEVANCE TO WRITING, AND INDICATE IN HIS
WRITTEN REFERRAL WHETHER HE DESIRED TO BE REPRESENTED BY THE UNION, OR
WHETHER HE WISHES TO PURSUE THE GRIEVANCE WITHOUT UNION REPRESENTATION.
IF THE EMPLOYEE ELECTS TO HAVE UNION REPRESENTATION, THE WRITTEN
GRIEVANCE MUST BE IN COMPLIANCE WITH A FORMAT MUTUALLY ACCEPTABLE TO
NPWC AND THE UNION. IT MUST BE SUBMITTED TO THE EMPLOYEE'S DEPARTMENT
HEAD WITHIN TEN CALENDAR DAYS AFTER RECEIPT OF THE IMMEDIATE
SUPERVISOR'S DECISION. THE DEPARTMENT HEAD OR HIS REPRESENTATIVE MUST
THEN MEET WITH THE EMPLOYEE TO DISCUSS THE GRIEVANCE WITHIN THREE
WORKING DAYS AFTER RECEIVING WRITTEN NOTICE. EMPLOYEES WHO HAVE ELECTED
TO BE REPRESENTED BY THE UNION "WILL BE ACCOMPANIED AND REPRESENTED" AT
THIS SECOND STEP DISCUSSION BY THE EMPLOYEE'S SHOP STEWARD AND/OR THE
VICE PRESIDENT OF THE UNION. THEREAFTER A WRITTEN DECISION MUST BE
RENDERED BY THE DEPARTMENT HEAD WITHIN TEN WORKING DAYS OF THE
DISCUSSION.
IF THE EMPLOYEE IS DISSATISFIED WITH A STEP TWO DECISION, HE MAY,
WITH THE CONCURRENCE OF THE UNION, REFER THE GRIEVANCE IN WRITING TO THE
COMMANDING OFFICER OF THE NPWC WITHIN FIFTEEN CALENDAR DAYS OF THE STEP
TWO DECISION. THE UNION MUST INDICATE IN THE REFERRAL WHETHER THE UNION
WISHES TO SUBMIT THE GRIEVANCE TO ARBITRATION IF DISSATISFIED WITH THE
COMMANDING OFFICER'S DECISION. PROCEDURES ARE PROVIDED FOR THE
COMMANDING OFFICER TO MEET WITH THE PRESIDENT AND VICE PRESIDENT OF THE
UNION OR THE STEWARD INVOLVED, THE AGGRIEVED EMPLOYEE AND ANY MANAGEMENT
OFFICIALS INVOLVED IN THE CASE, AND THEREAFTER RENDER A DECISION. STEP
FOUR PROVIDES FOR ARBITRATION IN APPROPRIATE CASES.
UNDER THE PROVISIONS OF THE NEGOTIATED GRIEVANCE PROCEDURE THE UNION
AGREES TO AVOID SUPPORTING FRIVOLOUS, VAGUE OR UNTIMELY COMPLAINTS, TO
INVESTIGATE GRIEVANCES TO ASSURE THAT A REASONABLY VALID BASIS EXISTS
BEFORE PROCEEDING, AND TO SUPPORT ONLY REASONABLE REMEDIES FOR
GRIEVANCES. EMPLOYEES USING THE NEGOTIATED PROCEDURE MUST BE
REPRESENTED BY THE UNION OR AN INDIVIDUAL APPROVED BY THE UNION, EXCEPT
IN SITUATIONS WHERE THE EMPLOYEE SEEKS AN ADJUSTMENT WITHOUT UNION
INTERVENTION, IN ACCORDANCE WITH SECTION 13(A) OF THE ORDER. IN SUCH
CASES THE UNION IS AFFORDED THE RIGHT TO BE PRESENT AT MEETINGS RELATING
TO THE ADJUSTMENT SOUGHT. HOWEVER, IN SUCH CASES THE EMPLOYEE IS NOT
ENTITLED TO ARBITRATION. THE DECISION RENDERED AT STEP THREE OF THE
GRIEVANCE PROCEDURE IS FINAL AND NOT SUBJECT TO FURTHER APPEAL IF THE
EMPLOYEE PROCEEDS UNDER SECTION 13(A)
COMPLAINANT ACKNOWLEDGED THAT THE UNION HAD THE OBLIGATION OF
REFUSING TO SUPPORT FRIVOLOUS GRIEVANCES, AND FURTHER THAT THE UNION
MUST FIRST APPROVE ANY REPRESENTATIVE APPEARING ON BEHALF OF ANY
EMPLOYEE UTILIZING THE UNION TO ASSERT A GRIEVANCE UNDER THE NEGOTIATED
GRIEVANCE PROCEDURE. THE RECORD DISCLOSED THAT IT WAS A REGULAR
PRACTICE TO INVOLVE THE PRESIDENT OR THE CHIEF STEWARD AT THE SECOND
STEP OF THE GRIEVANCE PROCEDURE, A MORE FORMAL PROCEEDING REQUIRING THE
GRIEVANCE TO BE MADE IN WRITING TO A DEPARTMENT HEAD. IN THIS REGARD
THE EVIDENCE REVEALED THAT IT WAS A REGULAR UNION PRACTICE FOR THE CHIEF
STEWARD OF THE UNION TO REPRESENT STEWARDS WHO HAVE MADE GRIEVANCES ON
THEIR OWN BEHALF, INASMUCH AS IT WAS CONSIDERED INADVISABLE FOR THE
EMPLOYEE TO REPRESENT HIMSELF DURING THE COURSE OF THE GRIEVANCE
PROCEDURE. /1/
GRIEVANCES SUBMITTED BY COMPLAINANT
THE COMPLAINANT WAS APPOINTED AS A STEWARD OF THE UNION IN APRIL OF
1974 BY MR. WILBANKS, THE UNION PRESIDENT. HE CONTINUED UNTIL THE FALL
OF 1975, WHEN A TEMPORARY REPLACEMENT WAS APPOINTED DUE TO THE
COMPLAINT'S INABILITY TO WORK FOLLOWING AN INJURY. HE RESUMED HIS
STEWARD ROLE SOMETIME IN FEBRUARY 1976, AND WAS REMOVED FOR CAUSE BY MR.
WILBANKS ON MARCH 17, 1976. /2/
THE UNFAIR LABOR PRACTICE ALLEGED IS TIED TO THREE GRIEVANCES BROUGHT
TO THE ATTENTION OF COMPLAINANT'S SUPERVISOR ON MARCH 16, 1976.
(COMPLAINANT EXHIBITS 4, 5, AND 6). THESE GRIEVANCES ALL RELATED TO THE
COMPLAINANT PERSONALLY, AND INVOLVED (1) ALLEGED STATEMENTS MADE BY A
SUPERVISOR REGARDING ABUSE OF BENEFITS PROVIDED UNDER THE FEDERAL
EMPLOYEES' COMPENSATION ACT (COMPLAINANT EXHIBIT 4); (2) ALLEGED
FAILURE TO PAY THE COMPLAINANT FOR TIME SPENT IN VISITING A DOCTOR TO
OBTAIN A LETTER ALLEGEDLY REQUIRED BY COMPLAINANT'S SUPERVISOR
(COMPLAINANT EXHIBIT 5); AND (3) ALLEGED UNFAIRNESS IN ALLOCATING
OVERTIME (COMPLAINANT EXHIBIT 6).
THE FIRST STEP OF THE GRIEVANCE PROCEDURE, INITIATED ON MARCH 16,
1976 BY THE COMPLAINANT WITH RESPECT TO THE THREE GRIEVANCES MENTIONED,
INVOLVED A DISCUSSION WITH COMPLAINANT'S SUPERVISOR. THE COMPLAINANT
WAS ACCOMPANIED TO THE MEETING BY MR. WILLIAM STABEN. MR. STABEN HAD
BEEN SELECTED BY THE COMPLAINANT AS HIS REPRESENTATIVE. THE MEETING WAS
PRECEDED BY AN EFFORT ON BEHALF OF THE COMPLAINANT TO HAVE THE CHIEF
STEWARD REPRESENT THE COMPLAINANT AT THE MARCH 16, 1976 MEETING WITH MR.
NADER. THE CHIEF STEWARD ADVISED THAT HE THOUGHT THE GRIEVANCES WERE
FRIVOLOUS. /3/ NEVERTHELESS, THE CHIEF STEWARD APPEARED AT THE MEETING,
BUT DID NOT PARTICIPATE. /4/
A MANAGEMENT OFFICIAL PHONED MR. WILBANKS TO APPRISE THE UNION OF MR.
STABEN'S REPRESENTATION SINCE UNION APPROVAL WAS REQUIRED AS THE
COMPLAINANT HAD NOT ELECTED TO PROCEED WITH HIS GRIEVANCES WITHOUT THE
INTERVENTION OF THE UNION. AT THIS JUNCTURE MR. WILBANKS TOOK THE
POSITION THAT THE COMPLAINANT HAD ACTED UNILATERALLY WITHOUT UNION
APPROVAL IN UTILIZING MR. STABEN'S SERVICES. /5/
THE RECORD DISCLOSED THAT MR. STABEN WAS ASKED BY MANAGEMENT TO PLAY
A PASSIVE LISTENING ROLE AT THE MARCH 16, 1976 MEETING. HOWEVER, HE DID
ANSWER QUESTIONS POSED BY THE COMPLAINANT'S SUPERVISOR.
THE EVIDENCE FAILS TO ESTABLISH THAT THE COMPLAINANT EVER OBTAINED
UNION APPROVAL FOR MR. STABEN'S REPRESENTATION OF THE COMPLAINANT IN
CONNECTION WITH THE GRIEVANCES MADE THE SUBJECT OF THE MARCH 16, 1976
MEETING. INSTEAD IT APPEARED THAT MR. STABEN HAD, IN FEBRUARY OF 1976,
APPEARED AS AN UNAUTHORIZED UNION REPRESENTATIVE IN CONNECTION WITH
ANOTHER UNRELATED NPWC MANAGEMENT OFFICIALS; THAT THE UNION THEN BECAME
AWARE OF SUCH REPRESENTATION, AND THAT THE UNION APPROVED MR. STABEN'S
LIMITED INVOLVEMENT IN FEBRUARY 1976 WITH THE CAVEAT THAT FUTURE
REPRESENTATION OF THE UNION BY NON-UNION OFFICIALS WOULD HAVE TO BE
APPROVED.
IN THIS REGARD IT IS NOTED THAT MR. STABEN ERRONEOUSLY STATED THAT
THE EARLIER FEBRUARY 1976 MEETING ACTUALLY INVOLVED THE THREE GRIEVANCES
DISCUSSED AT THE MARCH 16, 1976 STEP ONE GRIEVANCE MEETING; HOWEVER,
THIS NOTION WAS REPUDIATED BY THE COMPLAINANT. IN FACT, THESE THREE
GRIEVANCES WERE NOT EVEN DISCLOSED PRIOR TO THE MARCH 16, 1976 MEETING;
AND FURTHERMORE, THE EARLIER DISCUSSION IN FEBRUARY COULD NOT HAVE
INVOLVED GRIEVANCES WHICH ON THEIR FACE OCCURRED AFTER THE FEBRUARY 1976
REPRESENTATION OF THE COMPLAINANT. /6/ THERE IS NO EVIDENTIARY BASIS
FOR A FINDING THAT MR. STABEN WAS AUTHORIZED TO ACT FOR THE UNION IN
CONNECTION WITH GRIEVANCES MADE THE SUBJECT OF DISCUSSION ON MARCH 16,
1976.
IT WAS ALSO BROUGHT OUT THAT MUCH HOSTILITY AND MISUNDERSTANDING
BETWEEN THE PARTIES EMANATED FROM THE EARLIER FEBRUARY 1976 INCIDENT.
COMPLAINANT'S STEWARD DUTIES TERMINATED
MR. STABEN'S UNAUTHORIZED REPRESENTATION OF THE UNION IN CONNECTION
WITH THE COMPLAINANT'S GRIEVANCES ON MARCH 16, 1976, WAS FOLLOWED BY THE
UNION'S CLEAR REFUSAL TO RECOGNIZE MR. STABEN AS A UNION REPRESENTATIVE
ON BEHALF OF THE COMPLAINANT. IN ADDITION, MR. WILBANKS, ACTING AS
PRESIDENT OF THE UNION, DECIDED TO TERMINATE THE COMPLAINANT'S POSITION
AS STEWARD. MR. WILBANKS MADE ARRANGEMENTS FOR A MARCH 17, 1976 MEETING
COMPRISED OF COMPLAINANT, MR. WILBANKS AND MANAGEMENT OFFICIALS INVOLVED
IN THE PROCESSING OF COMPLAINANT'S GRIEVANCES. INCLUDED WERE MR. GEORGE
YOUNG, DIRECTOR OF NPWC, MR. BUD YOUNG, AN ASSISTANT OF MR. YOUNG'S, AND
MR. NADER, THE COMPLAINANT'S IMMEDIATE SUPERVISOR.
AT THE MEETING MR. WILBANKS, ACTING FOR WHAT HE DEEMED THE GOOD OF
THE UNION, MADE IT CLEAR THAT THE COMPLAINANT NO LONGER HAD AUTHORITY TO
ACT AS A UNION SPOKESMAN, AND FURTHER THAT THE COMPLAINANT DID NOT HAVE
AUTHORITY TO APPROVE GRIEVANCES WHICH WOULD RECEIVE THE SUPPORT OF THE
UNION. DURING THE COURSE OF THE EMOTIONALLY CHARGED MEETING, MR.
WILBANKS FIRST LEARNED THAT THE COMPLAINANT HAD, EARLIER THAT DAY,
(MARCH 17, 1976) SUBMITTED TO MR. YOUNG, THE THREE GRIEVANCES DISCUSSED
WITH MR. NADER THE DAY PREVIOUSLY. THE COMPLAINANT DEEMED THE
SUBMISSION AS THE SECOND STEP OF THE GRIEVANCE PROCEDURE. WHEN SHOWN
THESE GRIEVANCES, MR. WILBANKS, ON BEHALF OF THE UNION, REJECTED THEM
BECAUSE HE DEEMED THEM FRIVOLOUS, AND BECAUSE THE COMPLAINANT HAD FAILED
TO FOLLOW GRIEVANCE PROCEDURE WITH RESPECT TO APPROVAL OF A UNION
REPRESENTATIVE TO HANDLE THE PROCESSING OF THE GRIEVANCES. HE WANTED IT
UNDERSTOOD THAT THE UNION DID NOT SUPPORT THEM, THOUGH THEY HAD
OSTENSIBLY BEEN CARRIED THROUGH THE FIRST STEP OF THE GRIEVANCE
PROCEDURE WITH APPARENT UNION SUPPORT, AND FILED WITH MR. YOUNG WITH A
REQUEST FOR SECOND STEP PROCESSING. IT WAS CLEAR FROM THE RECORD THAT
MR. WILBANKS WANTED TO MAKE IT CLEAR TO ALL CONCERNED THAT THE
COMPLAINANT NO LONGER HAD ANY OFFICIAL CONNECTION WITH THE UNION AS A
STEWARD.
THE MARCH 17, 1976 MEETING WAS NOT ARRANGED TO PROCESS THE
COMPLAINANT'S THREE GRIEVANCES, ALTHOUGH IT APPEARED FROM THE RECORD
THAT THE COMPLAINANT MISTAKENLY CONSTRUED THE EVENT AS BEING SECOND STEP
CONSIDERATION OF THE GRIEVANCES REJECTED BY MANAGEMENT THE PREVIOUS DAY,
AND UNILATERALLY SUBMITTED TO MR. YOUNG EARLY ON MARCH 17, 1976 BY THE
COMPLAINANT IN HIS OFFICIAL CAPACITY AS A UNION STEWARD.
ALTHOUGH THE PRIMARY REASON FOR THE COMPLAINANT'S REMOVAL WAS HIS
ARRANGING FOR AN UNAUTHORIZED PERSON TO REPRESENT THE UNION IN
CONNECTION WITH THE PROCESSING OF GRIEVANCES ON FEBRUARY 1976, AND ON
MARCH 16, 1976, ADDITIONAL FACTORS UNDERLYING THE TERMINATION INVOLVED
ALLEGED UNAUTHORIZED USE OF THE UNION TELEPHONE TO MAKE LONG DISTANCE
CALLS, FAILURE TO REPRESENT EMPLOYEES, THE MAKING OF DEROGATORY REMARKS
AND UNSUBSTANTIATED CHARGES AGAINST UNION OFFICERS AND OTHER UNION
MEMBERS, FAILURE TO PURSUE EACH STEP OF THE GRIEVANCE PROCEDURE BEFORE
ADVANCING GRIEVANCES TO THE NEXT HIGHER STEP, FILING AN EXCESSIVE NUMBER
OF GRIEVANCES ON HIS OWN BEHALF TO THE DETRIMENT OF EMPLOYEES HE WAS
ASSIGNED TO REPRESENT, ABORTING GRIEVANCE HEARINGS BY INSISTING ON THE
USE OF A TAPE RECORDER DURING DISCUSSIONS OF GRIEVANCES WITH MANAGEMENT
OFFICIALS, AND LASTLY FOR CONDUCT UNBECOMING A UNION STEWARD. THERE IS
NO EVIDENCE IN THE RECORD THAT THESE UNDERLYING CHARGES WERE DISCUSSED
AT THE MEETING ON MARCH 17, 1976.
ALTHOUGH THE UNION WAS NOT INCLINED TO SUPPORT THE GRIEVANCES
INITIATED ON MARCH 16, 1976, THERE IS NO EVIDENCE WHATSOEVER THAT THE
UNION ENDEAVORED TO DENY THE COMPLAINANT THE RIGHT TO PROCEED WITH
GRIEVANCES ON HIS OWN BEHALF. IN THIS REGARD MANAGEMENT OFFICIALS MADE
NUMEROUS UNSUCCESSFUL EFFORTS TO PROCESS THE GRIEVANCES.
ON MARCH 24, 1976, JUST EIGHT DAYS AFTER INITIAL DISCUSSION OF THE
GRIEVANCES, THE COMPLAINANT WAS INVOLVED IN A DISCUSSION CONCERNING THE
PROPER FORMAT REQUIRED IN CONNECTION WITH HIS GRIEVANCES. ALTHOUGH THE
COMPLAINANT ALLEGED THAT MANAGEMENT WAS HARASSING THE COMPLAINANT
REGARDING THE NEED FOR FOLLOWING A REQUIRED FORMAT, COMPLAINANT
INTRODUCED NO EVIDENCE TO SHOW THAT THE RESPONDENT WAS INVOLVED IN THIS
REGARD, NOR WAS ANY PROOF ADDUCED TO ESTABLISH THAT FORMAT REQUIREMENTS
WERE IN FACT UNREASONABLE.
REPRESENTATION OF COMPLAINANT BY NATIONAL VICE PRESIDENT
AS LATE AS THE END OF MARCH THE COMPLAINANT WAS ENDEAVORING TO OBTAIN
UNION SUPPORT FOR HIS GRIEVANCES. IN THIS REGARD HE STATED THAT HE
WANTED TO WORK WITHIN THE FRAMEWORK OF THE UNION. TO THIS END THE
COMPLAINANT INSISTED UNSUCCESSFULLY ON HAVING A PRIVATE ATTORNEY
APPOINTED BY THE UNION TO REPRESENT THE COMPLAINANT AND THE UNION IN
PROCESSING THE COMPLAINANT'S GRIEVANCES. HE ALSO CONTACTED THE NATIONAL
OFFICE OF THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES AND
COMPLAINED OF THE UNION'S FAILURE TO TAKE A STRONG STAND ON HIS
GRIEVANCES. MR. PAUL HAYES, A NATIONAL VICE-PRESIDENT VISITED THE
RESPONDENT'S OFFICE ON APRIL 7, 1976, AND ARRANGEMENTS WERE MADE FOR MR.
HAYES TO REPRESENT THE COMPLAINANT. AT THE MEETING EFFORTS WERE MADE TO
EXPLAIN THE RESPONDENT'S POSITION REGARDING THE GRIEVANCES. ALTHOUGH
THE UNION HAD THE OPPORTUNITY TO DISAPPROVE REPRESENTATION BY MR. HAYES,
MR. WILBANKS ACQUIESCED AND APPROVAL WAS GRANTED AS OF APRIL 7, 1976.
/7/
JUST PRIOR TO THE MEETING MR. WILBANKS EXHIBITED VERBAL HOSTILITY
TOWARD THE COMPLAINANT. THIS EMANATED FROM THE STRAINED RELATIONSHIP
BETWEEN MR. WILBANKS AND COMPLAINANT OVER THE COMPLAINANT'S ATTITUDE
TOWARD THE UNION. HOWEVER, IT CLEARLY APPEARED THAT THE UNION WAS
ENDEAVORING TO MEET THE COMPLAINANT'S DEMAND FOR REPRESENTATION INSOFAR
AS IT WAS POSSIBLE TO DO SO UNDER THE CIRCUMSTANCES. NO EFFORTS WERE
MADE AT ANY POINT TO COERCE THE COMPLAINANT INTO A WITHDRAWAL OF HIS
GRIEVANCES. IN FACT, MR. HAYES AND MR. WILBANKS VISITED MR. YOUNG ON
APRIL 7, 1976 TO ADVISE MR. YOUNG THAT THE COMPLAINANT WOULD THEREAFTER
BE REPRESENTED BY MR. HAYES. THE GRIEVANCES WERE NOT OTHERWISE
DISCUSSED WITH MR. YOUNG.
MR. HAYES WAS SUBSEQUENTLY DISCHARGED BY THE COMPLAINANT BECAUSE OF
WHAT THE COMPLAINANT CONSTRUED AS A CONFLICT OF INTEREST. THERE IS NO
EVIDENCE OF SUCH CONFLICT IN THE RECORD, AND MR. HAYES WAS NEVER
INFORMED THAT HE HAD BEEN RELIEVED OF HIS DUTY TO REPRESENT THE
COMPLAINANT.
COMPLAINANT'S INSISTENCE ON USE OF TAPE RECORDER
AT A JULY 15, 1976 MEETING CALLED TO PROVIDE THE COMPLAINANT WITH
SECOND STEP CONSIDERATION OF THE COMPLAINANT'S THREE GRIEVANCES, HIS USE
OF A TAPE RECORDER WAS OBSERVED BY MANAGEMENT. THE COMPLAINANT INSISTED
UPON THE RIGHT TO USE THE TAPE RECORDER, AND THE MEETING WAS CANCELED AT
THE OUTSET BY MR. YOUNG ON BEHALF OF NPWC. THE NEGOTIATED AGREEMENT DID
NOT PROVIDE FOR THE RECORDATION OF GRIEVANCE PROCEEDINGS, AND IT WAS NOT
THE PRACTICE TO USE TAPE RECORDERS AT SUCH MEETINGS. THERE IS NO
EVIDENCE THAT THE RESPONDENT INTERPOSED OBJECTIONS TO RECORDATION. THE
JULY 15, 1976 MEETING WAS ATTENDED BY MR. YOUNG, MR. JOHN ALHOUSE, VICE
PRESIDENT OF THE UNION, A NPWC LABOR CONSULTANT AND THE COMPLAINANT.
/8/ AT THIS MEETING THE COMPLAINANT MADE IT CLEAR THAT HE WOULD
THEREAFTER REPRESENT HIMSELF.
IT MUST BE NOTED THAT THE COMPLAINANT CANNOT BE CONSIDERED AS BEING
ENTIRELY CREDIBLE. THE RECORD DISCLOSES THAT HE HAS AN EXPLOSIVE
TEMPER, AND THAT HE FREQUENTLY MISUNDERSTANDS AND IMPUGNS INNOCENT
MOTIVES. HE EXHIBITED A TENDENCY TO EXAGGERATE AND MISREPRESENT THE
FACTS. MEDICAL EVIDENCE INTRODUCED INTO THE RECORD REFLECTS THAT HE
SUFFERS FROM RECURRENT SEVERE HEADACHES, DIZZINESS, BLURRED VISION,
GRAND MAL SEIZURES, SYNCOPE AND A GENERAL NERVOUS CONDITION. AT THE
HEARING HIS REPRESENTATIVE CHARACTERIZED HIM AS BEING AN "EXCITABLE
PERSON," AND INDICATED THAT HE WAS THEN UNDER SLIGHT SEDATION. THE
COMPLAINANT HAS BEEN ENDEAVORING TO OBTAIN BENEFITS UNDER THE FEDERAL
EMPLOYEES COMPENSATION ACT BASED UPON AN ALLEGED JOB-RELATED AGGRAVATION
OF HIS NERVOUS CONDITION. SPECIFIC REFERENCE WAS MADE TO THE PROCESSING
OF THIS UNFAIR LABOR PRACTICE COMPLAINT AS BEING A PARTIAL CAUSE OF
DISABILITY.
DISCUSSION AND CONCLUSIONS
CHARGES TO THE EFFECT THAT THE COMPLAINANT HAS BEEN DENIED RIGHTS DUE
HIM UNDER THE ORDER HAVE NOT BEEN ESTABLISHED. SECTION 203.15 OF THE
REGULATIONS, 29 C.F.R. 203.15 PROVIDES THAT A COMPLAINANT IN ASSERTING
A VIOLATION OF THE ORDER HAS THE BURDEN OF PROVING THE ALLEGATIONS OF
THE COMPLAINT BY A PREPONDERANCE OF THE EVIDENCE. THIS BURDEN HAS NOT
BEEN SET.
A LABOR ORGANIZATION IS ENTITLED TO PROTECT ITSELF FROM THOSE ACTS OF
ITS MEMBERS WHICH THREATEN ITS CONTINUED EXISTENCE. /9/ HERE, THERE IS
STRONG EVIDENCE THAT MR. WILBANKS WAS ACTING TO PROTECT THE UNION.
MOREOVER, THE STRONG STATEMENTS OF MR. WILBANKS, IF MADE AS ALLEGED,
WOULD NOT, IN THE CONTEXT OF THE EVIDENCE DEVELOPED IN THIS CASE LEAD TO
A CONCLUSION THAT MR. WILBANKS ENGAGED IN AN UNFAIR LABOR PRACTICE.
THEY MERELY CONSTITUTED A PATTERN OF STRONG INSISTENCE UPON COMPLIANCE
WITH THE PROVISIONS OF THE NEGOTIATED AGREEMENT.
THE DECISION TO TERMINATE THE COMPLAINANT'S ROLE AS A STEWARD IN THE
MANNER DESCRIBED HEREIN WAS UNDERSTANDABLY DIFFICULT FOR THE
COMPLAINANT; HOWEVER, THERE IS NO EVIDENCE THAT IT WAS IMPROPER OR
OTHERWISE DESIGNED TO INTERFERE WITH, RESTRAIN, OR COERCE THE
COMPLAINANT IN THE EXERCISE OF HIS RIGHTS ASSURED BY THE ORDER. THOUGH
MR. WILBANKS APPARENTLY UTILIZED "WORDS OF THE STREET" ON OCCASION IN
HIS DEALINGS WITH COMPLAINANT, THE RECORD DISCLOSED A STRONG PERSONALITY
CONFLICT BETWEEN THESE TWO INDIVIDUALS, AND A DEFINITE DIFFERENCE OF
OPINION AS TO HOW BEST TO UTILIZE THE RESOURCES OF THE UNION'S
BARGAINING POWER. IT WOULD NOT BE POSSIBLE TO FIND THE BASIS OF AN
UNFAIR LABOR PRACTICE UPON THE PART OF THE RESPONDENT IN SUCH A FACTUAL
SETTING.
IT IS NOTED THAT MR. WILBANKS, ACTING AS PRESIDENT OF THE UNION HAD
AN OBLIGATION TO REFRAIN FROM SUPPORTING FRIVOLOUS COMPLAINTS. THERE
HAS BEEN NO SHOWING HERE THAT HIS ACT OF NOTING THE ABSENCE OF OFFICIAL
UNION SUPPORT FOR THE COMPLAINANT'S THREE GRIEVANCES, AND HIS
TERMINATION OF UNAUTHORIZED AND UNDESIRABLE REPRESENTATION OF THE UNION
WAS ANYTHING OTHER THAN LEGITIMATE.
THERE IS NO INDICATION OF BAD FAITH OR ULTERIOR MOTIVE. CERTAINLY
THE PROVISIONS OF SEC. 10(E) RELATIVE TO THE DUTY OF A LABOR
ORGANIZATION TO REPRESENT THE INTERESTS OF ALL EMPLOYEES IN A UNIT MAY
NOT BE CONSTRUED SO AS TO REQUIRE A LABOR ORGANIZATION TO BLINDLY
REPRESENT THE CAUSES OF ITS STEWARDS AND MEMBERS. HERE, SINCERE EFFORTS
WERE MADE TO WORK WITH THE COMPLAINANT CONCERNING THE PROCESSING OF HIS
GRIEVANCES WHEN COMPLAINANT INSISTED UPON UNION REPRESENTATION.
THEREAFTER, ON JULY 15, 1976, WHEN THE COMPLAINANT ELECTED TO PROCEED
INDEPENDENTLY OF THE UNION, THE COMPLAINANT ALONE WAS RESPONSIBLE FOR
THE CESSATION OF NEGOTIATIONS, BY INSISTING, OVER MANAGEMENT OBJECTIONS,
UPON A RECORDED STEP TWO GRIEVANCE PROCEEDING. NEITHER THE EXECUTIVE
ORDER NOR THE NEGOTIATED AGREEMENT PROVIDE A BASIS FOR SUCH A RIGHT AND
THE RESPONDENT WOULD NOT, IN LIGHT OF EVIDENCE ADDUCED HERE, HAVE BEEN
RESPONSIBLE FOR SUCH DENIAL EVEN IF THEY DID.
RECOMMENDATION
BASED UPON THE FOREGOING FINDINGS AND CONCLUSIONS, I RECOMMEND THAT
THE COMPLAINT HEREIN BE DISMISSED.
LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
DATED: APRIL 7, 1977
WASHINGTON, D.C.
/1/ ARTICLE VII, SECTION 2 OF THE NEGOTIATED AGREEMENT PROVIDES THAT
THE "APPROPRIATE UNION OFFICERS SHALL REPRESENT THE UNIT IN MEETING WITH
OFFICIALS OF THE EMPLOYER TO DISCUSS MATTERS OF MUTUAL INTEREST."
/2/ IT WAS THE PRACTICE FOR STEWARDS TO BE APPOINTED BY THE CHIEF
STEWARD WITH THE APPROVAL OF THE PRESIDENT, AND FOR THE PRESIDENT TO
TERMINATE STEWARDS FOR CONDUCT DEEMED IMPROPER.
/3/ TESTIMONY REGARDING THIS ASPECT OF THE CASE ENTERED THE RECORD AS
HERESAY. ALTHOUGH QUESTIONED AT THE HEARING, IT IS FOUND TO BE
ADMISSIBLE UNDER THE AUTHORITY OF SECTION 203.14 OF THE REGULATIONS. 29
C.F.R. 203.14.
/4/ THE ROLE PLAYED BY THE CHIEF STEWARD AT THE MEETING IS NOT CLEAR.
THERE IS INDICATION THAT BOTH THE CHIEF STEWARD AND MR. STABEN WERE
THERE TO REPRESENT THE COMPLAINANT, AND THAT THE COMPLAINANT PREFERRED
MR. STABEN.
/5/ ALTHOUGH COMPLAINANT'S EXHIBIT 4 TENDS TO INDICATE CONTINGENTLY
THAT THE COMPLAINANT WISHED TO PROCEED UNILATERALLY WITHOUT THE
INTERVENTION OF THE UNION, EVIDENCE INTRODUCED BY THE COMPLAINANT
CLEARLY REFLECTS AS INTENT TO PROCEED AS A UNION STEWARD AIDED BY MR.
STABEN AS AN AUTHORIZED UNION REPRESENTATIVE.
/6/ ALTHOUGH THE GRIEVANCE IDENTIFIED AS COMPLAINANT'S EXHIBIT 4, IS
DATED FEBRUARY 6, 1976, THE RECORD INDICATES THAT THIS GRIEVANCE WAS NOT
BROUGHT UP UNTIL MARCH 16, 1976.
/7/ THE RECORD REFLECTS THAT COMPLAINANT WAS NOT WORKING ON APRIL 7,
1976, AND THAT HE WAS NOT WORKING AT SUBSEQUENT TIMES THEREAFTER WHEN
EFFORTS WERE MADE TO PROCESS HIS GRIEVANCES.
/8/ THE RECORD DISCLOSED THAT THE COMPLAINANT HAD MADE A SIMILAR
EFFORT TO TAPE A GRIEVANCE MEETING IN FEBRUARY OF 1976. MR. YOUNG WAS
ALSO PRESENT AT THAT MEETING AND INSISTED THAT THE COMPLAINANT NOT USE
THE TAPE RECORDER. ON THIS OCCASION THE COMPLAINANT AGREED TO THE
REQUEST.
/9/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987, A/SLMR
NO. 420.
7 A/SLMR 895; P. 767; CASE NO. 40-7578(CA); SEPTEMBER 16, 1977.
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
ALABAMA NATIONAL GUARD,
MONTGOMERY, ALABAMA
A/SLMR NO. 895
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY LOCAL
1445, NATIONAL FEDERATION OF FEDERAL EMPLOYEES (COMPLAINANT) ALLEGING
THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY
EMBARKING ON A PROGRAM OF MORE STRICT ENFORCEMENT OF GROOMING STANDARDS
WITHOUT PROVIDING THE COMPLAINANT WITH PROPER NOTIFICATION AND
OPPORTUNITY TO DISCUSS THE MATTER.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE BASE COMMANDER'S
MEMORANDUM OF MAY 25, 1976, TO THE FOUR BRANCH CHIEFS, REFLECTED A
DISTINCT CHANGE IN ITS POLICY OF ENFORCING THE GROOMING AND UNIFORM
STANDARDS OF AIR FORCE REGULATION 35-10 (AFR 35-10), IN THAT IT CHANGED
A PREVIOUSLY EXISTING PERMISSIVE POLICY TO A POLICY OF VIGOROUS
ENFORCEMENT OF SUCH REGULATION AND THAT THE COMPLAINANT WAS NOT AFFORDED
A REASONABLE OPPORTUNITY TO MEET AND CONFER ON PROCEDURES THE RESPONDENT
INTENDED TO USE IN IMPLEMENTING THE CHANGE AND ON THE IMPACT OF SUCH
CHANGE ON ADVERSELY AFFECTED EMPLOYEES, THEREBY VIOLATING SECTION
19(A)(1) AND (6) OF THE ORDER.
CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THE ASSISTANT SECRETARY
CONCLUDED THAT THE RESPONDENT'S CONDUCT WAS NOT VIOLATIVE OF THE
EXECUTIVE ORDER. IN THIS REGARD, HE FOUND THAT THE RESPONDENT HAD,
PRIOR TO THE BASE COMMANDER'S MEMORANDUM OF MAY 25, 1976, ON VARIOUS
OCCASIONS CALLED TO THE ATTENTION OF THE TECHNICIANS THEIR OBLIGATIONS
WITH REGARD TO GROOMING AND DRESS STANDARDS; HAD EMPHASIZED THE NEED
FOR THE TECHNICIANS TO CONFORM TO THE GROOMING AND DRESS REGULATIONS;
AND THAT THE PARTIES' NEGOTIATED AGREEMENT, DATED MARCH 15, 1976, HAD
ADDRESSED ITSELF TO THE TECHNICIANS' OBLIGATIONS TO CONFORM TO SUCH
GROOMING AND DRESS REGULATIONS. HE FURTHER FOUND THAT THE EVIDENCE
ESTABLISHED THAT THE TECHNICIANS HAD BEEN COUNSELLED AND REPRIMANDED FOR
VIOLATIONS OF AFR 35-10 PRIOR TO THE BASE COMMANDER'S MEMORANDUM OF MAY
25, 1976, AND THAT THE COMPLAINANT WAS AWARE OF THE PROBLEMS WHICH AROSE
FROM NONCONFORMANCE WITH THE GROOMING STANDARDS AND DISCIPLINE IN
CONNECTION THEREWITH.
UNDER THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT THE
BASE COMMANDER'S MEMORANDUM OF MAY 25, 1976, TO THE FOUR BRANCH CHIEFS,
WHICH REITERATED THE STATEMENTS CONCERNING VIOLATIONS OF THE AFR 35-10
REGULATION IN HIS PREVIOUS MEMORANDA, DID NOT CONSTITUTE A CHANGE IN THE
RESPONDENT'S POLICY WITH RESPECT TO ENFORCEMENT OF THE GROOMING
STANDARDS, BUT RATHER WAS A REAFFIRMATION OF THE EXISTING STANDARDS AND
WAS INTENDED TO ENSURE UNIFORMITY OF ENFORCEMENT OF THE EXISTING POLICY
AMONG SUBORDINATE SUPERVISORS. HE FOUND, THEREFORE, THAT THE
RESPONDENT'S CONDUCT WAS NOT INCONSISTENT WITH ITS BARGAINING
OBLIGATIONS UNDER THE ORDER.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE COMPLAINT BE
DISMISSED.
ALABAMA NATIONAL GUARD,
MONTGOMERY, ALABAMA
RESPONDENT
AND
CASE NO. 40-7578(CA)
LOCAL 1445, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES
COMPLAINANT
DECISION AND ORDER
ON MAY 23, 1977, 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 CEASE AND DESIST THEREFROM AND TAKE
CERTAIN AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE
LAW JUDGE'S RECOMMENDED DECISION AND ORDER. NO EXCEPTIONS WERE FILED 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, I HEREBY ADOPT THE
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW
JUDGE, ONLY TO THE EXTENT CONSISTENT HEREWITH.
THE COMPLAINT IN THE INSTANT CASE ALLEGES THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY EMBARKING ON A PROGRAM
OF MORE STRICT ENFORCEMENT OF GROOMING STANDARDS WITHOUT PROVIDING THE
COMPLAINANT WITH PROPER NOTIFICATION AND OPPORTUNITY TO DISCUSS THE
MATTER. IN HIS RECOMMENDED DECISION AND ORDER, THE ADMINISTRATIVE LAW
JUDGE FOUND THAT THE BASE COMMANDER'S MEMORANDUM, DATED MAY 25, 1976, TO
THE FOUR BRANCH CHIEFS, REFLECTED A DISTINCT CHANGE IN THE RESPONDENT'S
POLICY OF ENFORCING THE GROOMING AND UNIFORM STANDARDS OF THE AIR FORCE
REGULATION 35-10 (AFR 35-10), IN THAT IT CHANGED A PREVIOUSLY EXISTING
PERMISSIVE POLICY TO A POLICY OF VIGOROUS ENFORCEMENT OF THE REGULATION
IN ORDER TO CORRECT CERTAIN PROBLEMS WITH REGARD TO THE APPEARANCE OF
TECHNICIANS. ACCORDINGLY, HE CONCLUDED THAT THE RESPONDENT'S ACTION
CONSTITUTED A UNILATERAL CHANGE IN ITS POLICY OF ENFORCEMENT OF AFR
35-10, AND THEREBY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY NOT
AFFORDING THE COMPLAINANT A REASONABLE OPPORTUNITY TO MEET AND CONFER ON
THE PROCEDURES RESPONDENT INTENDED TO USE IN IMPLEMENTING THE CHANGE AND
ON THE IMPACT OF SUCH CHANGE ON ADVERSELY AFFECTED EMPLOYEES.
UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE, I DO NOT AGREE WITH
THE FINDINGS AND CONCLUSIONS OF THE ADMINISTRATIVE LAW JUDGE. THE 1973,
REGULATIONS HAVE BEEN IN EXISTENCE WHICH REQUIRE TECHNICIANS, WHILE IN
UNIFORM AND IN DUTY STATUS, TO CONFORM TO CERTAIN DRESS AND APPEARANCE
STANDARDS WITH REGARD TO SUCH MATTERS AS THE WEARING OF HAIR, SIDEBURNS
AND MUSTACHES, AND THE USE OF WIGS. THE OBLIGATION TO COMPLY WITH
EXISTING STANDARDS WAS BROUGHT TO THE TECHNICIANS' ATTENTION BY THE
RESPONDENT AS A RESULT OF THE CIRCULATION OF TECHNICAL INFORMATION
LETTERS ON MARCH 15 AND NOVEMBER 13, 1974, AND MAY 6, 1976, AND ALSO BY
MEMORANDA DISTRIBUTED TO ALL TECHNICIANS, DATED SEPTEMBER 14, 1973, AND
FEBRUARY 12, 1975, WHICH EMPHASIZED THE NEED FOR PERSONNEL TO CONFORM TO
THE GROOMING AND DRESS REGULATIONS. /1/ IN ADDITION, THE RECORD
INDICATES THAT THE PARTIES' NEGOTIATED AGREEMENT, DATED MARCH 15, 1976,
ADDRESSED ITSELF TO THE TECHNICIANS' OBLIGATIONS TO CONFORM TO THE
GROOMING AND DRESS REGULATIONS. /2/
THE EVIDENCE ESTABLISHES THAT ALTHOUGH AFR 35-10 /3/ WAS NOT
UNIFORMLY ENFORCED BY ALL THE SUBORDINATE SUPERVISORS, PRIOR TO THE BASE
COMMANDER'S MEMORANDUM OF MAY 25, 1976, EMPLOYEES HAD, IN FACT, BEEN
COUNSELLED AND REPRIMANDED WITH REGARD TO VIOLATIONS OF THIS REGULATION.
MOREOVER, THE PROBLEMS WHICH AROSE FROM NONCONFORMANCE BY THE
TECHNICIANS WITH GROOMING STANDARDS AND DISCIPLINE IN CONNECTION
THEREWITH WERE KNOWN TO THE COMPLAINANT AND, IN FACT, ON MARCH 4, 1974,
IT REQUESTED A MEETING WITH THE ADJUTANT GENERAL TO DISCUSS HAIRCUTS AND
THE ALLEGED HARASSMENT OF THE TECHNICIANS BY THREATENING THEM WITH LOSS
OF EMPLOYMENT AND DENIAL OF PROMOTIONS BECAUSE OF PERSONAL APPEARANCE.
IN MY VIEW, THE BASE COMMANDER'S MEMORANDUM OF MAY 25, 1976, SENT TO
EACH OF HIS FOUR DIVISION CHIEFS, IN WHICH HE STATES THAT THE BASE HAS
BEEN "PLAGUED FOR TOO LONG NOW BY A PERMISSIVENESS WHICH HAS CONDONED
GROSS VIOLATIONS" AND THAT HE WAS DETERMINED TO CORRECT THE PROBLEM BY
HOLDING THE DIVISION CHIEFS PERSONALLY RESPONSIBLE FOR ANY VIOLATIONS
COMMITTED BY "HIS ASSIGNED AIR TECHNICIAN PERSONNEL," DID NOT CONSTITUTE
A CHANGE IN THE RESPONDENT'S PRIOR POLICY WITH RESPECT TO ENFORCEMENT OF
THE GROOMING STANDARDS. RATHER IT WAS A REAFFIRMATION OF THE
RESPONDENT'S EXISTING POLICY AND WAS INTENDED TO ENSURE UNIFORMITY OF
ENFORCEMENT OF THE EXISTING POLICY AMONG SUBORDINATE SUPERVISORS. /4/
UNDER THESE CIRCUMSTANCES, I CONCLUDE THAT THE RESPONDENT'S CONDUCT
HEREIN WAS NOT INCONSISTENT WITH ITS BARGAINING OBLIGATIONS UNDER THE
ORDER AND, THEREFORE, I SHALL ORDER THAT THE INSTANT COMPLAINT BE
DISMISSED.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 40-7578(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 16, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ THE SEPTEMBER 14, 1973, MEMORANDUM REFERRED TO "MILITARY BEARING"
WITH SPECIAL EMPHASIS ON PERSONAL APPEARANCE. THE FEBRUARY 12, 1975,
MEMORANDUM WAS MORE EMPHATIC AND POINTED OUT THAT GROOMING STANDARDS,
WHICH WERE A "FIRMLY ESTABLISHED LEGAL CONDITION OF OUR EMPLOYMENT
HERE," MUST BE ADHERED TO, AND SUGGESTED THAT, IF ANY TECHNICIAN WAS NOT
FULLY AWARE OF SUCH GROOMING STANDARDS AND MILITARY BEARING AND
APPEARANCE REQUIREMENTS, HE STUDY AFM 35-10. IT CONCLUDED WITH THE
ORDER THAT WITHOUT "EQUIVOCATION" THE RESPONDENT EXPECTED FULL
COMPLIANCE BY EACH OF THE TECHNICIANS "IMMEDIATELY AND INTO THE FUTURE
SO LONG AS THE REQUIREMENT STILL EXISTS."
/2/ THE AGREEMENT WAS SUBJECT TO EXISTING PUBLISHED AGENCY POLICIES
AND REGULATIONS. IN ADDITION, SECTION 3 OF ARTICLE II (OBLIGATIONS OF
TECHNICIANS) OF THE AGREEMENT STATED, IN PERTINENT PART:
TECHNICIANS SHOULD MAINTAIN A GOOD STANDARD OF NEATNESS AND
APPEARANCE. THE STANDARD IS
COMPRISED OF NEAT HAIRCUTS, NEAT SHOE SHINE, PROPER DRESS OF UNIFORMS
AND SAFETY.
/3/ ALTHOUGH AFR 35-10, WAS DATED FEBRUARY 25, 1975, AND WAS MADE
APPLICABLE OCTOBER 30, 1975, IT CONTAINED APPEARANCE STANDARDS WHICH
WERE IN EFFECT SINCE JANUARY 1973.
/4/ COMPARE NEW MEXICO NATIONAL GUARD, DEPARTMENT OF MILITARY
AFFAIRS, OFFICE OF THE ADJUTANT GENERAL, SANTA FE, NEW MEXICO, A/SLMR
NO. 362, WHICH INVOLVED A NEW POLICY OF ENFORCEMENT, AND DEPARTMENT OF
THE NAVY, MARE ISLAND NAVAL SHIPYARD, VALLEJO, CALIFORNIA, A/SLMR NO.
736.
IN THE MATTER OF
ALABAMA NATIONAL GUARD,
RESPONDENT
CASE NO. 40-7578(CA)
AND
LOCAL 1445, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES,
COMPLAINANT
RAY ACTON, ESQ.
AND
J. B. BRACKIN, ESQ.
OFFICE OF THE ATTORNEY GENERAL
669 S. LAWRENCE STREET
MONTGOMERY, ALABAMA
FOR THE RESPONDENT
GEORGE TILTON, ESQ.
ASSOCIATE GENERAL COUNSEL
LOCAL 1445, NFFE
1016 16TH STREET, N.W.
WASHINGTON, D.C. 20036
FOR THE COMPLAINANT
BEFORE: SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
PRELIMINARY STATEMENT
THIS PROCEEDING ARISES UNDER THE PROVISIONS OF EXECUTIVE ORDER 11491,
AS AMENDED (HEREAFTER REFERRED TO AS THE ORDER). PURSUANT TO THE
REGULATIONS OF THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT
RELATIONS (HEREAFTER REFERRED TO AS THE ASSISTANT SECRETARY), A NOTICE
OF HEARING ON COMPLAINT ISSUED ON DECEMBER 21, 1976 WITH REFERENCE TO
ALLEGED VIOLATIONS OF SECTIONS 19(A)(1) AND (6) OF THE ORDER. THE
COMPLAINT, FILED BY LOCAL 1445, NATIONAL FEDERATION OF FEDERAL EMPLOYEES
(HEREAFTER REFERRED TO AS COMPLAINANT OR THE UNION ALLEGED THAT ALABAMA
NATIONAL GUARD (HEREAFTER REFERRED TO AS RESPONDENT OR THE ACTIVITY)
VIOLATED THE ORDER BY EMBARKING ON A PROGRAM OF MORE STRICT ENFORCEMENT
OF GROOMING STANDARDS WITHOUT PROVIDING THE UNION WITH PROPER
NOTIFICATION AND OPPORTUNITY TO DISCUSS THE MATTER.
AT THE HEARING HELD ON FEBRUARY 17, 1977 THE PARTIES WERE REPRESENTED
BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO ADDUCE EVIDENCE, CALL,
EXAMINE AND CROSS-EXAMINE WITNESSES AND ARGUE ORALLY. BRIEFS WERE
RECEIVED FROM BOTH PARTIES AND CAREFULLY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS MATTER AND FROM MY EVALUATION OF THE
EVIDENCE AND OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE
FOLLOWING:
FINDINGS AND CONCLUSIONS
SINCE 1971 THE UNION HAS BEEN THE EXCLUSIVE COLLECTIVE BARGAINING
REPRESENTATIVE OF VARIOUS OF THE ACTIVITY'S EMPLOYEES IN THE STATE OF
ALABAMA INCLUDING NON-SUPERVISORY TECHNICIANS WORKING AT DANNELLY AIR
FIELD, BIRMINGHAM, ALABAMA. AT ALL TIMES SINCE JANUARY 1973 ACTIVITY
REGULATIONS WERE IN EFFECT WHICH REQUIRED TECHNICIANS, WHILE IN UNIFORM
AND IN DUTY STATUS, TO CONFORM WITH CERTAIN DRESS AND APPEARANCE
STANDARDS. /1/ THE REGULATIONS ARE ADDRESSED TO SUCH MATTERS AS THE
WEARING OF UNIFORMS, THE LENGTH AND CONDITION OF HAIR, SIDEBURNS AND
MUSTACHES AND THE USE OF WIGS.
THE REGULATIONS WERE GENERALLY NOT STRICTLY ENFORCED BY SOME
SUPERVISORS WHEN THE TECHNICIANS WERE PERFORMING THEIR WEEK-DAY
EMPLOYMENT ACTIVITIES. NEVERTHELESS, THE EXISTENCE OF THESE REGULATIONS
AND/OR TECHNICIANS' GENERAL OBLIGATION TO COMPLY THEREWITH WAS BROUGHT
TO THE TECHNICIANS' ATTENTION BY THE ACTIVITY'S CIRCULATING TECHNICAL
INFORMATION LETTERS ON MARCH 15, 1974, NOVEMBER 13, 1974 AND MAY 6,
1976. IN ADDITION, BY MEMORANDA DISTRIBUTED TO ALL TECHNICIANS AT
DANNELLY FIELD DATED SEPTEMBER 14, 1973 AND FEBRUARY 12, 1975, THE
ACTIVITY EMPHASIZED THE NEED FOR PERSONNEL TO CONFORM TO THE GROOMING
AND DRESS REGULATIONS.
THE UNION WAS, FROM TIME TO TIME, KEPT ADVISED OF ANY CHANGES IN
THESE AND OTHER REGULATIONS OR WHEN PUBLICATIONS WERE ISSUED WITH REGARD
THERETO. THE LAST SUCH NOTIFICATION RELEVANT TO THE COMPLAINT WAS GIVEN
TO THE UNION ON MARCH 11, 1976. THE FORM NOTIFICATION READ "ATTACHED
FOR YOUR INFORMATION AND GUIDANCE ARE THE FOLLOWING PUBLICATIONS THAT
PERTAIN TO THE ALABAMA NATIONAL GUARD TECHNICIAN PROGRAM . . .."
ATTACHED WAS A NATIONAL GUARD BUREAU TECHNICIANS PERSONNEL SUPPLEMENT
FOR FILING WITH THE APPROPRIATE FEDERAL PERSONNEL MANUAL CHAPTER WHICH
REFERRED, INTER ALIA, TO AFR 35-10, RESTATED THE REQUIREMENT THAT
TECHNICIANS COMPLY WITH GROOMING AND UNIFORM STANDARDS AND SET OUT
VARIOUS SITUATIONS DURING WHICH THE WEARING OF UNIFORMS WOULD BE
INAPPROPRIATE.
SOMETIME AFTER MAY 17, 1976, SGT. SCHYLER UBANKS, A NON-SUPERVISORY
TECHNICIAN, MET WITH COLONEL JAMES E. HARDWICK, AIR COMMANDER AT
DANNELLY FIELD, AND EXPRESSED HIS CONCERN WITH THE LACK OF TECHNICIAN
COMPLIANCE WITH AFR 35-10 GROOMING AND DRESS STANDARDS AT DANNELLY
FIELD. COLONEL HARDWICK SHARED SGT. UBANKS' CONCERN. INDEED, IN
COLONEL HARDWICK'S VIEW NONCOMPLIANCE WITH AFR 35-10 BEGAN TO GET "OUT
OF HAND" IN 1973 AND PERSISTED TO THAT DAY. ACCORDINGLY, COLONEL
HARDWICK SOLICITED SGT. UBANKS' ASSISTANCE TO RECTIFY THE SITUATION AND
ON MAY 21, 1976, AT COLONEL HARDWICK'S REQUEST, UBANKS MADE A
CONFIDENTIAL INSPECTION OF TECHNICIANS' COMPLIANCE WITH THE REGULATIONS
AND REPORTED NUMEROUS INFRACTIONS OF THE REGULATIONS TO COLONEL
HARDWICK. /2/ PURSUANT THERETO, COLONEL HARDWICK, ON MAY 25, 1976, SENT
A MEMORANDUM TO EACH OF HIS FOUR DIVISION CHIEFS. THE MEMO STATED,
INTER ALIA:
"1. ALABAMA AIR NATIONAL GUARD UNITS, INCLUDING THOSE BASED AT
DANNELLY FIELD (ANG), HAVE
BEEN PLAGUED FOR TOO LONG NOW BY A PERMISSIVENESS WHICH HAS CONDONED
GROSS VIOLATIONS OF AFR
35-10 BY AIR GUARDSMEN, INCLUDING MANY AIR TECHNICIANS. THE
SITUATION CAN BE CORRECTED, AS IT
HAS BEEN IN SEVERAL ANG UNITS, BUT ONLY IF OUR OFFICERS,
NON-COMMISSIONED OFFICERS, AND
TECHNICIAN SUPERVISORS DO THEIR DUTY. MAKE NO MISTAKE ABOUT IT --
RESPONSIBILITY RESTS
HEAVILY AND EQUALLY UPON EACH MANAGER AND SUPERVISOR DOWN TO THE
FIRST LEVEL."
THE MEMO WENT ON TO EMPHASIZE COLONEL HARDWICK'S DETERMINATION TO
"CORRECT THE PROBLEM" IN THE ACTIVITY'S MILITARY UNITS STARTING FIRST
WITH THE AIR TECHNICIAN DETACHMENT. DIVISION CHIEFS WERE INFORMED THAT
THEY WERE PERSONALLY RESPONSIBLE TO ASSURE COMPLIANCE WITH THE
REGULATIONS AND THAT THEIR ACTIVE INVOLVEMENT IN THE ENDEAVOR WAS
REQUIRED. IN ADDITION, THE MEMO LISTED THE NAME AND VARIOUS UNIFORM,
MUSTACHE, HAIR AND WIG VIOLATIONS WHICH UBANKS' INVESTIGATION OF MAY 21
HAD DISCLOSED.
AT NO TIME PRIOR TO MAY 25, 1976 WAS THE UNION ADVISED OR MADE AWARE
OF SGT. UBANKS' ACTIVITIES OR COLONEL HARDWICK'S INCLINATION AS SET
FORTH IN HIS MAY 25 MEMO TO THE ACTIVITY'S DIVISION CHIEFS.
THEREAFTER, THE REQUIREMENTS OF AFR 35-10 WERE GENERALLY MORE
VIGOROUSLY ENFORCED BY SOME OF THE ACTIVITY'S SUPERVISORS. FROM JANUARY
1, 1973 TO MAY 24, 1975, ACCORDING TO DOCUMENTARY EVIDENCE SUBMITTED AT
THE HEARING, A TOTAL OF THIRTEEN ACTIONS (COUNSELLING, REPRIMANDS,
SUSPENSIONS) WERE TAKEN AGAINST TECHNICIANS FOR VIOLATIONS OF AFR 35-10
AS OPPOSED TO TWENTY-NINE SUCH ACTIONS TAKEN ON MAY 25 TO LATE JANUARY
1977. /3/ THESE ACTIONS INVOLVED SEVEN TECHNICIANS PRIOR TO MAY 25 AND
SEVENTEEN TECHNICIANS ON MAY 25 OR THEREAFTER. HOWEVER, ALL THE
TECHNICIANS AGAINST WHOM ACTIONS WERE TAKEN PRIOR TO MAY 25 WORKED IN
THE SUPPORT SERVICES DIVISION UNDER THE AUTHORITY OF LT. COLONEL LONNIE
SLAUSON. THUS, IN THE SUPPORT SERVICES DIVISION SEVEN TECHNICIANS
RECEIVED THIRTEEN ACTIONS PRIOR TO MAY 25 AND EIGHT TECHNICIANS RECEIVED
NINE ACTIONS AFTER MAY 25. HOWEVER, IT IS APPARENT FROM LT. COL.
SLAUSON'S TESTIMONY GIVEN AT THE HEARING THAT PRIOR TO MAY 25, 1976 HE
WAS AWARE OF COLONEL HARDWICK'S INTENT TO MORE VIGOROUSLY ENFORCE AFR
35-10 AND INDEED CONTACTED THE BRANCH CHIEFS UNDER HIS COMMAND FOR THE
PURPOSE OF HAVING THE IMMEDIATE SUPERVISORS "TALK TO" THOSE TECHNICIANS
NAMED. THE RECORD REVEALS THAT IN LT. COL. SLAUSON'S DIVISION NINE
EMPLOYEES REVEALS THAT IN LT. COL. SLAUSON'S DIVISION NINE EMPLOYEES
WERE NAMED IN COLONEL HARDWICK'S MAY 25 MEMO OF WHICH THREE WERE
COUNSELLED ON MAY 25, TWO WERE COUNSELLED ON MAY 24, /4/ AND ONE
TECHNICIAN WHO RECEIVED NUMEROUS COUNSELLINGS AND A LETTER OF REPRIMAND
ON PREVIOUS OCCASIONS WAS SUSPENDED FOR FIVE DAYS AS OF JUNE 29, 1976.
IN ADDITION, TWO TECHNICIANS, NOT NAMED IN COLONEL HARDWICK'S MEMO, WERE
COUNSELLED ON MAY 25 AND ANOTHER WAS COUNSELLED ON MAY 27. TWO OTHER
TECHNICIANS WERE COUNSELLED FOR GROOMING VIOLATIONS AFTER MAY 25 - ONE
ON OCTOBER 6, 1976 AND THE OTHER ON NOVEMBER 22, 1976.
WITH REGARD TO THE THREE TECHNICIANS IN THE SUPPLY MANAGEMENT
DIVISION AGAINST WHOM ACTIONS WERE TAKEN, ALL RECEIVED COUNSELLINGS
WITHIN THE FIRST TWO DAYS OF JUNE 1976, ONE TECHNICIAN HAVING BEEN NAMED
IN COLONEL HARDWICK'S MAY 25 MEMO.
AS TO THE AIRCRAFT MAINTENANCE DIVISION, NONE OF THE SEVENTEEN
ACTIONS TAKEN AGAINST THE SIX TECHNICIANS INVOLVED PREDATED MAY 26, 1976
ON WHICH DATE ACTION AGAINST TECHNICIANS BEGAN TO BE TAKEN AND CONTINUED
THROUGH NOVEMBER 1976.
THE UNION ESSENTIALLY CONTENDS THAT COLONEL HARDWICK CHANGED THE
ACTIVITY'S PERMISSIVE POLICY IN ENFORCEMENT POLICY OF AFR 35-10 TO A
MORE RIGID ENFORCEMENT POLICY WITHOUT GIVING THE UNION PROPER
NOTIFICATION AND AN OPPORTUNITY TO BARGAIN ON THE MATTER. THE ACTIVITY
TAKES THE POSITION THAT THERE WAS NO CHANGE IN ITS POLICY OF ENFORCING
AFR 35-10. RATHER, RESPONDENT CONTENDS THAT COLONEL HARDWICK'S MEMO OF
MAY 25, 1976 MERELY REPRESENTED AN EXAMPLE OF THE ACTIVITY'S CONTINUING
EFFORT TO OBTAIN COMPLIANCE WITH ITS GROOMING AND PERSONAL APPEARANCE
STANDARDS. FURTHER, THE ACTIVITY CONTENDS THAT, IN ANY EVENT, THE UNION
WAS TIMELY NOTIFIED OF ANY CHANGE IN ENFORCEMENT THROUGH THE TRANSMITTAL
THE UNION RECEIVED ON MARCH 11, 1976 OF THE NATIONAL GUARD BUREAU
TECHNICIAN PERSONNEL SUPPLEMENT, SUPRA.
I FIND AND CONCLUDE THAT COLONEL HARDWICK'S MEMO DATED MAY 25, 1976
REFLECTS A DISTINCT CHANGE IN THE ACTIVITY'S POLICY OF ENFORCING THE
GROOMING AND UNIFORM STANDARDS OF AFR 35-10. THE DECISION TO CHANGE
FROM A PERMISSIVE POLICY, WHICH, IN COLONEL HARDWICK'S OWN WORDS,
"CONDONED GROSS VIOLATIONS OF AFR 35-10" TO A POLICY OF VIGOROUS
ENFORCEMENT OF THE REGULATIONS IN ORDER TO "CORRECT THE PROBLEM" WAS
FIRST EFFECTUATED BY COLONEL HARDWICK'S ENLISTING SGT. UBANKS TO MAKE
AN INSPECTION. CLEARLY, COLONEL HARDWICK'S DECISION AS REFLECTED IN HIS
MEMO DATED MAY 25 GENERALLY RESULTED IN SUBSTANTIALLY MORE ACTIONS BEING
TAKEN AGAINST TECHNICIANS FOR VIOLATIONS OF AFR 35-10 IN THE FOLLOWING
NINE MONTH PERIOD THAN IN THE PRIOR FORTY-ONE MONTH PERIOD. INDEED,
COLONEL HARDWICK ACKNOWLEDGED THAT TECHNICIAN COMPLIANCE WITH AFR 35-10
IMPROVED "DRASTICALLY" AFTER ISSUANCE OF THE MAY 25 MEMO.
I FURTHER CONCLUDE THAT THE MAY 25 MEMO CANNOT BE EQUATED WITH THE
ACTIVITY'S PRIOR EFFORTS TO OBTAIN COMPLIANCE WITH THE REGULATIONS.
NONE OF THE FEW PRIOR, SPORADICALLY ISSUED COMMUNICATIONS ON THIS
SUBJECT WERE COMPARABLE IN TONE, URGENCY, RESOLVE OR RESULTS. THIS IS
EVIDENT FROM THE GENERAL LACK OF DILIGENT ENFORCEMENT FOLLOWING ISSUANCE
OF THOSE DOCUMENTS. THUS, IN TWO OF THE THREE DIVISION IN WHICH
EVIDENCE WAS SUBMITTED, NO TECHNICIAN WAS CITED FOR VIOLATION OF AFR
35-10 DURING THE PRE MAY 25, 1976 PERIOD.
IN ADDITION, I REJECT RESPONDENT'S CONTENTION THAT ITS MARCH 11, 1976
TRANSMITTAL TO THE UNION PROVIDED COMPLAINANT WITH ADEQUATE NOTICE OF
CHANGE IN THE ACTIVITY'S POLICY IN ENFORCING AFR 35-10. THE COVER MEMO
WAS A ROUTINE FORM NOTICE. THE DOCUMENT CLAIMED TO BE SIGNIFICANT WAS A
MANUAL 35-10 AND SPECIFICALLY RECITED SOME SITUATIONS IN WHICH IT HAD
BEEN DETERMINED THAT THE WEARING OF THE UNIFORMS WOULD BE INAPPROPRIATE.
I SEE NOTHING IN THE DOCUMENT WHICH RAISES EVEN A SUSPICION THAT
SOMEHOW THE UNION SHOULD HAVE RECOGNIZED THEY WERE RECEIVING NOTICE THAT
TEN WEEKS HENCE AFR 35-10 WOULD BE STRICTLY ENFORCED WHEN PRIOR THERETO,
A "PERMISSIVE" ATTITUDE PREVAILED.
ACCORDINGLY, IN ALL THE CIRCUMSTANCES I CONCLUDE THAT RESPONDENT'S
UNILATERAL CHANGE IN ITS POLICY OF ENFORCEMENT OF AFR 35-10 VIOLATED
SECTIONS 19(A)(1) AND (6) OF THE ORDER BY NOT AFFORDING THE UNION A
REASONABLE OPPORTUNITY TO MEET AND CONFER ON THE PROCEDURES MANAGEMENT
INTENDED TO USE IN IMPLEMENTING THE CHANGE AND ON THE IMPACT OF SUCH
CHANGE ON ADVERSELY AFFECTED EMPLOYEES. /5/
IN THE SUPPLY MANAGEMENT DIVISION AND THE AIRCRAFT MAINTENANCE
DIVISION NO TECHNICIANS WERE CITED FOR VIOLATIONS OF THE REGULATIONS
AFTER JANUARY 1973 AND PRIOR TO MAY 25, 1976. THEREFORE, I CONCLUDE
THAT ALL OF THE ACTIONS TAKEN AGAINST TECHNICIANS AFTER MAY 25 WERE THE
RESULT OF THE ACTIVITY'S CHANGE IN POLICY OF ENFORCING THE REGULATIONS.
HOWEVER, IN THE SUPPORT SERVICES DIVISION A POLICY OF ENFORCEMENT OF
THE REGULATIONS EXISTED BEFORE MAY 25, 1976 AS DEMONSTRATED BY THIRTEEN
ACTIONS TAKEN AGAINST SEVEN TECHNICIANS DURING THAT FORTY-ONE MONTH
PERIOD. NEVERTHELESS, SINCE THE ACTIONS TAKEN BY THE ACTIVITY FOR
VIOLATIONS ON MAY 24 THROUGH JUNE 29 OCCURRED AS A DIRECT RESULT OF
COLONEL HARDWICK'S DECISION TO HAVE AFR 35-10 MORE VIGOROUSLY ENFORCED,
I CONCLUDE THAT THESE ACTIONS WOULD NOT HAVE BEEN TAKEN AT THAT TIME BUT
FOR THE ACTIVITY'S DECISION.
THEREFORE, I SHALL RECOMMEND AS A REMEDY FOR THE VIOLATIONS OF THE
ORDER FOUND HEREIN THAT:
1. THE ACTIONS TAKEN AGAINST TECHNICIANS IN THE AIRCRAFT MAINTENANCE
DIVISION AND SUPPLY MANAGEMENT DIVISION ON MAY 25 OR THEREAFTER DUE TO
VIOLATIONS OF AFR 35-10 BE WITHDRAWN AND EXPUNGED FROM THEIR RECORDS.
FURTHER, I RECOMMEND THAT JOHN H. PHILLIPS, WHO WAS SUSPENDED ON
NOVEMBER 16, 1976 FOR VIOLATION OF AFR 35-10 BE MADE WHOLE FOR ANY LOSS
SUFFERED AS A RESULT OF SUCH SUSPENSION.
2. THE ACTIONS TAKEN AGAINST TECHNICIANS IN THE SUPPORT SERVICES
DIVISION FROM MAY 24, 1976 TO JUNE 29, 1976 DUE TO VIOLATIONS OF AFR
35-10 BE WITHDRAWN AND EXPUNGED FROM THEIR RECORDS AND ROBERT D. BOYLES
BE MADE WHOLE FOR ANY LOSS SUFFERED AS A RESULT OF THE FIVE DAY
SUSPENSION HE RECEIVED ON JUNE 29, 1976.
RECOMMENDATION
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTIONS 19(A)(1) AND (6) OF THE ORDER, I RECOMMEND THAT
THE ASSISTANT SECRETARY ADOPT THE ORDER AS HEREINAFTER SET FORTH WHICH
IS DESIGNED TO EFFECTUATE THE POLICIES OF THE ORDER.
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 ALABAMA NATIONAL GUARD
SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY EMBARKING ON A PROGRAM OF MORE STRICT ENFORCEMENT OF
UNIFORM AND APPEARANCE STANDARDS TO BE OBSERVED BY EMPLOYEES REPRESENTED
EXCLUSIVELY BY LOCAL 1445, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, OR
ANY OTHER EXCLUSIVE REPRESENTATIVE, WITHOUT NOTIFYING LOCAL 1445,
NATIONAL FEDERATION OF FEDERAL 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 WHICH MANAGEMENT WILL OBSERVE IN EFFECTUATING ITS NEW
POLICY WITH RESPECT TO THE ENFORCEMENT OF UNIFORM AND APPEARANCE
STANDARDS AND ON THE IMPACT SUCH POLICY WILL HAVE ON THE EMPLOYEES
ADVERSELY AFFECTED BY SUCH ACTION.
(B) COUNSELLING, REPRIMANDING, SUSPENDING OR TAKING SUCH OTHER ACTION
AGAINST EMPLOYEES REPRESENTED EXCLUSIVELY BY LOCAL 1445, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE
IN FURTHERANCE OF ITS POLICY ANNOUNCED ON MAY 25, 1976 OF MORE STRICT
ENFORCEMENT OF UNIFORM AND APPEARANCE STANDARDS.
(C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING 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) RESCIND COLONEL HARDWICK'S MEMORANDA OF MAY 25, 1976 RELATIVE TO
THE STRICT ENFORCEMENT OF UNIFORM AND APPEARANCE STANDARDS AS APPLIED TO
EMPLOYEES REPRESENTED BY LOCAL 1445, NATIONAL FEDERATION OF FEDERAL
EMPLOYEES.
(B) WITHDRAW ANY COUNSELLINGS, REPRIMANDS, OR SUSPENSIONS FOR
VIOLATIONS OF UNIFORM AND APPEARANCE STANDARDS GIVEN ON MAY 25, 1976 OR
THEREAFTER TO ANY EMPLOYEE REPRESENTED BY LOCAL 1445, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES EMPLOYED IN THE AIRCRAFT MAINTENANCE
DIVISION AND THE SUPPLY MANAGEMENT DIVISION AND EXPUNGE FROM SAID
EMPLOYEES' RECORDS ANY REFERENCE WITH REGARD THERETO.
(C) WITHDRAW ANY COUNSELLING, REPRIMAND, OR SUSPENSION FOR VIOLATIONS
OF UNIFORM AND APPEARANCE STANDARDS GIVEN FROM MAY 24, 1976 TO JUNE 29,
1976 TO ANY EMPLOYEE REPRESENTED BY LOCAL 1445, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES IN THE SUPPORT SERVICES DIVISION AND EXPUNGE FROM SAID
EMPLOYEES' RECORDS ANY REFERENCE WITH REGARD THERETO.
(D) MAKE WHOLE JOHN H. PHILLIPS AND ROBERT D. BOYLES FOR ANY LOSS OF
PAY OR OTHER BENEFIT OF EMPLOYMENT THEY MAY HAVE SUFFERED BY REASON OF
THE SUSPENSION RECEIVED ON NOVEMBER 16, 1976 AND JUNE 29, 1976
RESPECTIVELY FOR VIOLATIONS OF UNIFORM AND APPEARANCE STANDARDS.
(E) NOTIFY LOCAL 1445, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, OR
ANY OTHER EXCLUSIVE REPRESENTATIVE, OF ANY INTENDED CHANGE IN POLICY
WITH RESPECT TO THE ENFORCEMENT OF UNIFORM AND APPEARANCE STANDARDS AND,
UPON REQUEST, MEET AND CONFER IN GOOD FAITH, TO THE EXTENT CONSONANT
WITH LAW AND REGULATIONS, ON THE PROCEDURES WHICH MANAGEMENT WILL
OBSERVE IN EFFECTUATING ITS NEW POLICY WITH RESPECT TO THE ENFORCEMENT
OF UNIFORM AND APPEARANCE STANDARDS AND ON THE IMPACT SUCH POLICY WILL
HAVE ON THE EMPLOYEES ADVERSELY AFFECTED BY SUCH ACTION.
(F) POST AT ITS FACILITY AT DANNELLY AIR FIELD, BIRMINGHAM, ALABAMA,
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 AIR COMMANDER
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
AIR COMMANDER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES
ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(G) 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.
SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
DATED: 23 MAY 1977
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS AND IN ORDER TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
AMENDED, LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT UNILATERALLY EMBARK ON A PROGRAM OF MORE STRICT
ENFORCEMENT OF UNIFORM AND APPEARANCE STANDARDS TO BE OBSERVED BY
EMPLOYEES REPRESENTED EXCLUSIVELY BY LOCAL 1445, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, WITHOUT
NOTIFYING LOCAL 1445, NATIONAL FEDERATION OF FEDERAL 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 WHICH MANAGEMENT WILL OBSERVE IN
EFFECTUATING ITS NEW POLICY WITH RESPECT TO THE ENFORCEMENT OF UNIFORM
AND APPEARANCE STANDARDS AND ON THE IMPACT SUCH POLICY WILL HAVE ON THE
EMPLOYEES ADVERSELY AFFECTED BY SUCH ACTION.
WE WILL NOT COUNSEL, REPRIMAND, SUSPEND OR TAKE SUCH OTHER ACTION
AGAINST EMPLOYEES REPRESENTED EXCLUSIVELY BY LOCAL 1445, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE
IN FURTHERANCE OF OUR POLICY ANNOUNCED ON MAY 25, 1976 OF MORE STRICT
ENFORCEMENT OF UNIFORM AND APPEARANCE STANDARDS.
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 RESCIND THE MEMORANDA OF MAY 25, 1976 RELATIVE TO THE STRICT
ENFORCEMENT OF UNIFORM AND APPEARANCE STANDARDS AS APPLIED TO EMPLOYEES
REPRESENTED BY LOCAL 1445, NATIONAL FEDERATION OF FEDERAL EMPLOYEES.
WE WILL WITHDRAW ANY COUNSELLINGS, REPRIMANDS, OR SUSPENSIONS FOR
VIOLATIONS OF UNIFORM AND APPEARANCE STANDARDS ON MAY 25, 1976 OR
THEREAFTER TO ANY EMPLOYEE REPRESENTED BY LOCAL 1445, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES EMPLOYED IN THE AIRCRAFT MAINTENANCE
DIVISION AND THE SUPPLY MANAGEMENT DIVISION AND EXPUNGE FROM SAID
EMPLOYEES RECORDS ANY REFERENCE WITH REGARD THERETO.
WE WILL WITHDRAW ANY COUNSELLINGS, REPRIMANDS, OR SUSPENSIONS FOR
VIOLATIONS OF UNIFORM AND APPEARANCE STANDARDS GIVEN FROM MAY 24, 1976
TO JUNE 29, 1976 TO ANY EMPLOYEE REPRESENTED BY LOCAL 1445, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES IN THE SUPPORT SERVICES DIVISION AND
EXPUNGE FROM SAID EMPLOYEES' RECORDS ANY REFERENCE WITH REGARD THERETO.
WE WILL MAKE WHOLE JOHN H. PHILLIPS AND ROBERT D. BOYLES FOR ANY LOSS
OF PAY OR OTHER BENEFIT OF EMPLOYMENT THEY MAY HAVE SUFFERED BY REASON
OF THE SUSPENSION RECEIVED ON NOVEMBER 16, 1976 AND JUNE 29, 1976
RESPECTIVELY FOR VIOLATIONS OF UNIFORM AND APPEARANCE STANDARDS.
WE WILL NOTIFY LOCAL 1445, NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
OR ANY OTHER EXCLUSIVE REPRESENTATIVE, OF ANY INTENDED CHANGE IN POLICY
WITH RESPECT TO THE ENFORCEMENT OF UNIFORM AND APPEARANCE STANDARDS AND,
UPON REQUEST, MEET AND CONFER IN GOOD FAITH, TO THE EXTENT CONSONANT
WITH LAW AND REGULATIONS, ON THE PROCEDURES WHICH MANAGEMENT WILL
OBSERVE IN EFFECTUATING ITS NEW POLICY WITH RESPECT TO THE ENFORCEMENT
OF UNIFORM AND APPEARANCE STANDARDS AND ON THE IMPACT SUCH POLICY WILL
HAVE ON THE EMPLOYEES ADVERSELY AFFECTED BY SUCH ACTION.
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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE ASSISTANT
REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, ROOM 300 - 1371 PEACHTREE STREET, N.E.,
ATLANTA, GEORGIA 30309
/1/ AIR FORCE REGULATION AFR 35-10, DATED FEBRUARY 25, 1975 AND MADE
APPLICABLE TO AIR NATIONAL GUARD PERSONNEL ON OCTOBER 30, 1975 CONTAINS
THE APPEARANCE STANDARDS WHICH, IN SUBSTANCE, WERE IN EFFECT SINCE
JANUARY 1973.
/2/ UBANKS MADE APPROXIMATELY THREE SIMILAR INSPECTIONS DURING A FOUR
OR FIVE WEEK PERIOD AFTER WHICH COLONEL HARDWICK HAD HIM CEASE SUCH
ACTIVITIES.
/3/ THE EVIDENCE INCLUDED RESUMES OF ACTIONS TAKEN IN THREE OF THE
FOUR DIVISIONS IN COLONEL HARDWICK'S COMMAND - SUPPORT SERVICES,
AIRCRAFT MAINTENANCE AND SUPPLY MANAGEMENT. THE RECORD IS SILENT AS TO
WHETHER ANY VIOLATIONS WERE FOUND OR ACTIONS TAKEN IN THE ACTIVITY' AIR
OPERATIONS DIVISION.
/4/ ALTHOUGH THE ACTIVITY'S SUMMARY OF ACTIONS TAKEN AGAINST
TECHNICIANS FOR VIOLATIONS OF AFR 35-10 INDICATED THAT THE TWO EMPLOYEES
WERE COUNSELLED ON MAY 24, IT IS CLEAR FROM LT. COL. SLAUSON'S TESTIMONY
THAT THESE COUNSELLINGS OCCURRED AS A RESULT OF SGT. UBANKS'
INVESTIGATION FOR COLONEL HARDWICK AND IN FURTHERANCE OF COLONEL
HARDWICK'S POLICY AS STATED IN HIS MAY 25 MEMO.
/5/ NEW MEXICO AIR NATIONAL GUARD, DEPARTMENT OF MILITARY AFFAIRS,
OFFICE OF THE ADJUTANT GENERAL, SANTE FE, NEW MEXICO, A/SLMR NO. 362.
7 A/SLMR 894; P. 765; CASE NO. 70-5517(CU); SEPTEMBER 16, 1977.
SEPTEMBER 16, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER CLARIFYING UNITS OF THE
ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
PUBLIC HEALTH SERVICE HOSPITAL,
SAN FRANCISCO, CALIFORNIA
A/SLMR NO. 894
THIS CASE INVOLVED A PETITION FOR CLARIFICATION OF UNIT (CU) FILED BY
THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, PUBLIC HEALTH SERVICE
HOSPITAL, SAN FRANCISCO, CALIFORNIA (ACTIVITY) SEEKING TO CLARIFY THE
STATUS OF HEAD NURSES, WHOM IT CLAIMED WERE SUPERVISORS AND SHOULD,
THEREFORE, BE EXCLUDED FROM THE EXISTING EXCLUSIVELY RECOGNIZED UNIT.
THE CALIFORNIA NURSES ASSOCIATION, ON THE OTHER HAND, CONTENDED THAT THE
HEAD NURSES WERE NOT SUPERVISORS AND SHOULD REMAIN IN THE UNIT FOR WHICH
IT WAS GRANTED RECOGNITION IN 1967.
THE ASSISTANT SECRETARY FOUND THAT THE HEAD NURSES ARE SUPERVISORS
WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER. IN THIS CONNECTION,
THE RECORD REVEALED THAT HEAD NURSES ASSIGN WORK TO SUBORDINATE
EMPLOYEES UTILIZING INDEPENDENT JUDGMENT; DESIGNATE TEAM LEADERS AND
THOSE PATIENTS REQUIRING TEAM CARE, OFTEN ACTING AS TEAM LEADERS
THEMSELVES; EVALUATE EMPLOYEE PERFORMANCE, WHICH EVALUATIONS REQUIRE
THE USE OF INDEPENDENT JUDGMENT; MAKE EFFECTIVE RECOMMENDATIONS
REGARDING THE RETENTION OF PROBATIONARY EMPLOYEES; PROVIDE INPUT INTO
THE HIRING PROCESS; AND ARE DESIGNATED AS THE FIRST STEP MANAGEMENT
OFFICIAL UNDER THE AGENCY GRIEVANCE PROCEDURE AND UNDER A GRIEVANCE
PROCEDURE NEGOTIATED BY THE ACTIVITY AND ANOTHER LABOR ORGANIZATION
COVERING CERTAIN EMPLOYEES UNDER THE SUPERVISION OF THE HEAD NURSES.
UNDER THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT EMPLOYEES
ASSIGNED TO THE POSITION OF HEAD NURSE ARE SUPERVISORS WITHIN THE
MEANING OF THE ORDER, AND CLARIFIED THE EXISTING EXCLUSIVELY RECOGNIZED
UNIT CONSISTENT WITH HIS FINDINGS.
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
PUBLIC HEALTH SERVICE HOSPITAL,
SAN FRANCISCO, CALIFORNIA
ACTIVITY/PETITIONER
AND
CASE NO. 70-5517(CU)
CALIFORNIA NURSES ASSOCIATION
LABOR ORGANIZATION
DECISION AND ORDER CLARIFYING UNIT
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:
THE ACTIVITY/PETITIONER, HEREINAFTER CALLED THE ACTIVITY, FILED THE
INSTANT PETITION SEEKING TO CLARIFY THE STATUS OF HEAD NURSES, WHOM IT
CLAIMS ARE SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER
AND SHOULD, THEREFORE, BE EXCLUDED FROM THE EXISTING EXCLUSIVELY
RECOGNIZED UNIT. THE CALIFORNIA NURSES ASSOCIATION, HEREINAFTER CALLED
CNA, CONTENDS THAT THE HEAD NURSES ARE NOT SUPERVISORS AND SHOULD BE
INCLUDED IN ITS UNIT WHICH IT DESCRIBED AS: "ALL STAFF NURSES AND HEAD
NURSES, AND OTHER REGISTERED NURSES NOT DESIGNATED SUPERVISORS UNDER
EXECUTIVE ORDER 10988 WHO ARE OFFICIALLY ASSIGNED TO HOSPITAL POSITIONS
AND WHO ARE CARRIED ON THE OFFICIAL HOSPITAL PAYROLL." /1/
THE ACTIVITY PROVIDES MEDICAL AND SURGICAL CARE FOR ELIGIBLE
INDIVIDUALS, AND SERVES ALSO AS A TEACHING INSTITUTION AND RESEARCH
FACILITY. THE CNA AND THE ACTIVITY ENTERED INTO A NEGOTIATED AGREEMENT
IN 1969, WHICH TERMINATED IN 1972. ALTHOUGH THE PARTIES ARE NOT NOW
UNDER A NEGOTIATED AGREEMENT, A DUES CHECK-OFF AGREEMENT IS PRESENTLY IN
EFFECT.
THE HEAD NURSES INVOLVED HEREIN ARE ALL EMPLOYED IN THE ACTIVITY'S
NURSING DEPARTMENT, WHICH IS COMPRISED OF SEVEN UNITS:
MEDICAL-SURGICAL; INTENSIVE CARE; PRIMARY CARE (FORMERLY CALLED
GENERAL OUTPATIENT); METABOLIC; RENAL DIALYSIS; PSYCHIATRIC
OUTPATIENT; AND OPERATING ROOM. STAFF NURSES, NURSING ASSISTANTS AND
WARD CLERKS STAFF THESE UNITS UNDER THE GENERAL DIRECTION OF THE HEAD
NURSES. /2/ THE RESPONSIBILITY FOR THE ADMINISTRATION OF THE NURSING
DEPARTMENT IS IN THE OFFICE OF DIRECTOR OF NURSING. ASSIGNED TO THE
OFFICE OF DIRECTOR OF NURSING IS A DEPUTY DIRECTOR; AN ASSOCIATE
DIRECTOR OF NURSING, EDUCATION; TWO CLINICAL SUPERVISORS,
MEDICAL-SURGICAL; TWO ASSISTANT DIRECTORS OF NURSING, ONE EACH FOR THE
EVENING AND NIGHT SHIFTS; TWO NURSE SUPERVISORS, ONE EACH FOR THE
EVENING AND NIGHT SHIFTS; AND AN OPERATING ROOM SUPERVISOR.
THE RECORD REVEALS THAT HEAD NURSES ARE RESPONSIBLE FOR THEIR
RESPECTIVE UNITS ON A 24-HOUR 7-DAY WEEK BASIS, ALTHOUGH, TYPICALLY, THE
TOUR OF DUTY FOR THE HEAD NURSES IS THE DAY SHIFT. IN THE EXERCISE OF
THEIR ADMINISTRATIVE DUTIES, HEAD NURSES DRAW UP WORK SCHEDULES WHICH
ARE SUBMITTED TO THE DIRECTOR OR DEPUTY DIRECTOR OF NURSING FOR REVIEW.
THE HEAD NURSES ALSO DESIGNATE TEAM LEADERS AND DETERMINE WHICH PATIENTS
NEED TEAM CARE. WORK ASSIGNMENTS ON THE TEAM ARE MADE BY THE TEAM
LEADER AND, IN THIS CONNECTION, THE RECORD REVEALS THAT HEAD NURSES
OFTEN ACT AS TEAM LEADERS. WHEN A HEAD NURSE FINDS A PARTICULAR UNIT
SHORT-STAFFED, THE DEPUTY DIRECTOR OR CLINICAL SUPERVISOR IS NOTIFIED,
WHO, IN TURN, CALLS IN AN OFF-DUTY STAFF NURSE OR TRANSFERS PERSONNEL
FROM ONE UNIT TO ANOTHER. EMPLOYEES TAKING SICK LEAVE CALL THE NURSING
OFFICE WHICH FOLLOWS THE SAME PROCEDURE AS NOTED ABOVE TO COVER STAFFING
DEFICIENCIES. REQUESTS FOR ANNUAL LEAVE ARE SUBMITTED TO THE HEAD
NURSES WHO COMPLETE MASTER LEAVE SCHEDULES WHICH ARE SENT TO THE NURSING
OFFICE FOR APPROVAL. CONFLICTS IN LEAVE ARE RESOLVED BY THE HEAD NURSE
WITH THE AFFECTED EMPLOYEES. THOSE CONFLICTS THAT ARE NOT RESOLVED AT
THIS LEVEL ARE REFERRED TO HIGHER LEVEL SUPERVISION.
THE RECORD REVEALS THAT HEAD NURSES MAKE RECOMMENDATIONS FOR
WITHIN-GRADE INCREASES AND COMPLETE PERFORMANCE EVALUATIONS FOR
EMPLOYEES ON THEIR STAFFS. IN THE CASE OF PROBATIONARY EMPLOYEES, HEAD
NURSES RECOMMEND THEIR RETENTION OR DISCHARGE AND THE EVIDENCE INDICATES
THAT THE RECOMMENDATIONS OF THE HEAD NURSES IN THIS REGARD ARE FOLLOWED.
PERFORMANCE EVALUATIONS FOR OTHER EMPLOYEES ARE REVIEWED BY THE
CLINICAL SUPERVISOR WHO MAY COMMENT ON THE EVALUATION BUT MAY NOT CHANGE
IT. IN CASES OF UNSATISFACTORY PERFORMANCE, HEAD NURSES COUNSEL THE
EMPLOYEE INVOLVED INDIVIDUALLY AND THEN MAY COUNSEL THE EMPLOYEE AGAIN
WITH THE CLINICAL SUPERVISOR PRESENT. THE HEAD NURSES REPORT
INFRACTIONS OF THE RULES TO HIGHER SUPERVISION PUT HAVE THEMSELVES
EXCUSED SHORT PERIODS OF TARDINESS. THE RECORD INDICATES THAT HEAD
NURSES ARE DESIGNATED AS THE FIRST STEP MANAGEMENT OFFICIAL IN BOTH THE
AGENCY GRIEVANCE PROCEDURE AND THE NEGOTIATED GRIEVANCE PROCEDURE
COVERING NURSING ASSISTANTS AND WARD CLERKS, ALTHOUGH THERE IS NO
EVIDENCE THAT HEAD NURSES HAVE BEEN INVOLVED IN GRIEVANCE HANDLING UNDER
EITHER PROCEDURE.
APPLICANTS SEEKING POSITIONS WITHIN THE NURSING DEPARTMENT ARE
SCREENED BY THE DEPUTY DIRECTOR BEFORE BEING REFERRED TO A HEAD NURSE
WHO DETERMINES WHETHER OR NOT THE APPLICANT WILL BE ABLE TO WORK WITH
THE OTHER EMPLOYEES WITHIN A GIVEN UNIT AND, IN GENERAL, ACQUAINTS THE
APPLICANT WITH THE TYPE OF WORK PERFORMED IN THE UNIT. THE RECORD
REVEALS THAT HEAD NURSES ATTEND PERIODIC MEETINGS WITH PERSONNEL FROM
THE OFFICE OF DIRECTOR OF NURSING; SERVE AS MEMBERS OF HOSPITAL
COMMITTEES; AND HAVE RECEIVED LIMITED SUPERVISORY TRAINING.
BASED ON ALL THE FOREGOING CIRCUMSTANCES, I FIND THAT HEAD NURSES ARE
SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER INASMUCH AS
THEY ASSIGN WORK TO SUBORDINATE EMPLOYEES UTILIZING INDEPENDENT
JUDGMENT; EVALUATE THE WORK PERFORMANCE OF SUBORDINATE EMPLOYEES; MAKE
EFFECTIVE RECOMMENDATIONS REGARDING RETENTION OF EMPLOYEES; AND ARE
DESIGNATED THE FIRST LINE AUTHORITY UNDER ESTABLISHED GRIEVANCE
PROCEDURES. /3/ ACCORDINGLY, I FIND THAT THE EMPLOYEES ASSIGNED TO THE
POSITION OF HEAD NURSE ARE SUPERVISORS WITHIN THE MEANING OF SECTION
2(C) OF THE ORDER, AND SHOULD, THEREFORE, BE EXCLUDED FROM THE UNIT.
ORDER
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, FOR
WHICH THE CALIFORNIA NURSES ASSOCIATION WAS GRANTED RECOGNITION ON
NOVEMBER 17, 1967, BE, AND HEREBY IS, CLARIFIED BY EXCLUDING FROM SAID
UNIT EMPLOYEES CLASSIFIED AS HEAD NURSES.
DATED, WASHINGTON, D.C.
SEPTEMBER 16, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ THE CNA WAS GRANTED EXCLUSIVE RECOGNITION IN 1967.
/2/ THE RECORD INDICATES THAT NURSING ASSISTANTS AND WARD CLERKS ARE
INCLUDED IN A UNIT EXCLUSIVELY REPRESENTED BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO.
/3/ CF. THE VETERANS ADMINISTRATION HOSPITAL, AUGUSTA, A/SLMR NO.
3; U.S. SOLDIERS' HOME, WASHINGTON, D.C., A/SLMR NO. 13; VETERANS
ADMINISTRATION, VETERANS ADMINISTRATION HOSPITAL, LEXINGTON, KENTUCKY,
A/SLMR NO. 22; VETERANS ADMINISTRATION HOSPITAL, BUFFALO, NEW YORK,
A/SLMR NO. 96; AND INDIAN HEALTH SERVICE AREA OFFICE, WINDOW ROCK,
ARIZONA, AND PUBLIC HEALTH SERVICE INDIAN HOSPITAL, FORT DEFIANCE,
ARIZONA, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, A/SLMR NO. 778,
WHERE, BASED ON SIMILAR FACTS, HEAD NURSES WERE FOUND TO BE SUPERVISORS
WITHIN THE MEANING OF THE ORDER.
7 A/SLMR 893; P 758; CASE NO. 42-3334(CA); SEPTEMBER 7, 1977.
SEPTEMBER 7, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
JACKSONVILLE DISTRICT,
INTERNAL REVENUE SERVICE,
JACKSONVILLE, FLORIDA
A/SLMR NO. 893
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
NATIONAL TREASURY EMPLOYEES UNION (NTEU) ALLEGING ESSENTIALLY THAT THE
RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY CHANGING A
TESTING PROCEDURE FOR CERTAIN IRS EMPLOYEES WITHOUT NOTIFYING THE NTEU
AND AFFORDING IT AN OPPORTUNITY TO REQUEST BARGAINING ON THE IMPACT AND
IMPLEMENTATION OF THE CHANGE.
ON OCTOBER 10, 1975, REPRESENTATIVES OF BOTH PARTIES MET TO DISCUSS
THE TAXPAYER SERVICE PROGRAM FOR THE UPCOMING TAX FILING SEASON. THE
NTEU CONTENDED THAT AT THE MEETING PASSING REFERENCE WAS MADE TO TESTING
OF CERTAIN EMPLOYEES BUT AS TESTING HAD OCCURRED IN PREVIOUS YEARS IT
RAISED NO QUESTIONS AT THE TIME. THE RESPONDENT, ON THE OTHER HAND,
ARGUED THAT A CHANGE IN THE TESTING PROCEDURE WAS DISCUSSED IN THE
CONTEXT OF ITS OVERALL QUALITY CONTROL PROGRAM. THE RECORD REVEALED
THAT TESTING COMMENCED IN THE JACKSONVILLE DISTRICT DURING THE WEEK OF
NOVEMBER 17, 1975. THEREAFTER, ON NOVEMBER 25, 1975, THE PARTIES HELD A
TELEPHONE DISCUSSION CONCERNING THE USE TO WHICH THE TEST RESULTS WOULD
BE PUT AFTER SEVERAL UNIT MEMBERS HAD EXPRESSED THEIR CONCERN IN THIS
CONNECTION, AND ON DECEMBER 4, 1975, THE NTEU SUBMITTED A SET OF
PROPOSALS REGARDING MATTERS DISCUSSED AT THE MEETING OF OCTOBER 10.
THE ADMINISTRATIVE LAW JUDGE MADE NO FACTUAL FINDINGS OR CONCLUSIONS
OF LAW WITH RESPECT TO THE OCTOBER 10TH MEETING. HOWEVER, HE CONCLUDED,
BASED UPON THE TELEPHONE CONVERSATION OF NOVEMBER 25 AND THE NTEU'S
PROPOSALS OF DECEMBER 4 THAT THE LATTER HAD KNOWLEDGE OF THE CHANGE IN
THE TESTING PROGRAM AND THAT THE RESPONDENT, THEREFORE, HAD TIMELY
FULFILLED ITS OBLIGATION OF NOTIFYING THE NTEU AND AFFORDING IT AN
OPPORTUNITY TO REQUEST BARGAINING ON THE IMPACT AND IMPLEMENTATION OF
THE CHANGE.
CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THE ASSISTANT SECRETARY
FOUND THAT THE COMPLAINANT WAS NOT FURNISHED SUFFICIENT NOTICE OF THE
CHANGE IN THE TESTING PROGRAM PRIOR TO ITS IMPLEMENTATION IN THE
JACKSONVILLE DISTRICT. HE NOTED THAT THE NOVEMBER 25TH TELEPHONE
CONVERSATION AND THE DECEMBER 4TH PROPOSALS, UPON WHICH THE
ADMINISTRATIVE LAW JUDGE BASED HIS DETERMINATION THAT THE COMPLAINANT
HAD NOTICE OF THE CHANGE IN THE TESTING PROGRAM, OCCURRED AFTER THE
TESTING HAD ALREADY COMMENCED IN THE JACKSONVILLE DISTRICT. IN DECIDING
WHETHER THE COMPLAINANT WAS AFFORDED TIMELY NOTICE OF THE CHANGE, THE
ASSISTANT SECRETARY NOTED, THEREFORE, THAT IT WAS CRITICAL TO DETERMINE
WHETHER THE RESPONDENT PROVIDED APPROPRIATE NOTICE TO THE COMPLAINANT AT
THE OCTOBER 10TH MEETING. ASSUMING ARGUENDO THAT SOME REFERENCE WAS, IN
FACT, MADE TO TESTING AT THE OCTOBER 10TH MEETING THE EVIDENCE DID NOT
ESTABLISH THAT A PROPOSED CHANGE IN THE TESTING PROGRAM WAS A SPECIFIC
SUBJECT OF THE MEETING OR THAT AT THE MEETING THE RESPONDENT SO CLEARLY
INFORMED THE COMPLAINANT OF A CONTEMPLATED CHANGE IN THE ESTABLISHED
TESTING PROGRAM AS TO CONSTITUTE THE TYPE OF PRECISE AND TIMELY
NOTIFICATION ENVISAGED BY THE ORDER WHICH WOULD HAVE ENABLED THE
COMPLAINANT TO BARGAIN IN A MEANINGFUL MANNER, PRIOR TO THE CHANGE,
CONCERNING THE IMPACT AND IMPLEMENTATION OF THE MANAGEMENT DECISION.
UNDER THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT THE
RESPONDENT FAILED TO MEET ITS BARGAINING OBLIGATION IN VIOLATION OF
SECTION 19(A)(1) AND (6), AND ISSUED AN APPROPRIATE REMEDIAL ORDER.
JACKSONVILLE DISTRICT,
INTERNAL REVENUE SERVICE,
JACKSONVILLE, FLORIDA
RESPONDENT
CASE NO. 42-3334(CA)
AND
NATIONAL TREASURY EMPLOYEES UNION
COMPLAINANT
DECISION AND ORDER
ON MARCH 23, 1977, ADMINISTRATIVE LAW JUDGE PETER MCC. GIESEY 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 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 AND THE RESPONDENT FILED AN ANSWERING BRIEF TO THE COMPLAINANT'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 RECOMMENDED DECISION AND
ORDER AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE
EXCEPTIONS FILED BY THE COMPLAINANT AND THE RESPONDENT'S ANSWERING BRIEF
TO THE COMPLAINANT'S EXCEPTIONS, I HEREBY ADOPT THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, ONLY TO THE EXTENT
CONSISTENT HEREWITH.
THE COMPLAINT HEREIN ALLEGED ESSENTIALLY THAT A TESTING PROGRAM,
DIFFERENT FROM THAT WHICH HAD BEEN UTILIZED IN PREVIOUS YEARS, WAS
CONDUCTED BY THE RESPONDENT FOR CERTAIN INTERNAL REVENUE SERVICE (IRS)
EMPLOYEES IN THE JACKSONVILLE DISTRICT OF THE IRS WITHOUT PRIOR
NOTIFICATION TO THE COMPLAINANT AND WITHOUT THEREBY AFFORDING THE
COMPLAINANT AN OPPORTUNITY TO REQUEST AND ENGAGE IN BARGAINING ON THE
IMPACT AND IMPLEMENTATION OF THE TESTING PROGRAM, IN VIOLATION OF
SECTION 19(A)(1) AND (6) OF THE ORDER.
THE RECORD REVEALS THAT ON OCTOBER 10, 1975, A MEETING WAS HELD IN
WASHINGTON, D.C. BETWEEN REPRESENTATIVES OF THE IRS AND THE COMPLAINANT,
THE NATIONAL TREASURY EMPLOYEES UNION (NTEU). /1/ THE MEETING WAS
CALLED BY THE IRS FOR THE PURPOSE OF DISCUSSING THE TAXPAYER SERVICE
PROGRAM FOR THE FISCAL YEAR 1976. THE COMPLAINANT ASSERTS THAT TWO
TOPICS WERE DISCUSSED AT THE MEETING - THE DETAILING OF IRS EMPLOYEES
INTO THE TAXPAYERS' SERVICE FUNCTION AND THE HIRING OF "WHEN ACTUALLY
EMPLOYED" (WAE) EMPLOYEES FOR THE TAXPAYER SERVICE PROGRAM. THE
COMPLAINANT FURTHER CONTENDS THAT ONLY "A PASSING REFERENCE" WAS MADE TO
THE TESTING OF TAXPAYERS' SERVICE REPRESENTATIVES (TSRS) AND THAT IT
RAISED NO QUESTION AT THE TIME BECAUSE TESTING OF TSRS HAD BEEN
CONDUCTED IN THE PAST AND IT WAS NOT UNTIL SOME TIME LATER THAT THE NTEU
LEARNED THAT, IN FACT, THERE HAD BEEN A CHANGE IN THE TESTING PROCEDURE.
/2/ THE RESPONDENT ASSERTS THAT IN ADDITION TO DISCUSSING DETAILS AND
THE HIRING OF WAE EMPLOYEES AT THE MEETING, IT RAISED THE ISSUE OF
"QUALITY CONTROL" WHICH WAS TO BE ACCOMPLISHED, IN PART, BY A SERIES OF
PRE-TESTS AND POST-TESTS OF THE TSRS. AT THE CONCLUSION OF THE MEETING,
THE COMPLAINANT INDICATED THAT IT WOULD BE SUBMITTING PROPOSALS ON THE
MATTERS DISCUSSED.
IT IS UNDISPUTED THAT TESTING OF TSRS BEGAN IN THE JACKSONVILLE
DISTRICT DURING THE WEEK OF NOVEMBER 17, 1975. ON OR ABOUT NOVEMBER 25,
1975, THE COMPLAINANT'S NATIONAL PRESIDENT AND THE CHIEF OF THE
RESPONDENT'S RESULTS WOULD BE PUT AFTER SEVERAL NTEU MEMBERS HAD
EXPRESSED THEIR CONCERN IN THIS CONNECTION TO NTEU OFFICIALS. ON
DECEMBER 4, 1975, THE COMPLAINANT SUBMITTED A SET OF PROPOSALS
CONCERNING THE DETAILING OF EMPLOYEES INTO THE TAXPAYERS' SERVICE
FUNCTION AND THE HIRING OF WAE PERSONNEL.
IN HIS RECOMMENDED DECISION AND ORDER, THE ADMINISTRATIVE LAW JUDGE
MADE NO FACTUAL FINDINGS OR CONCLUSIONS OF LAW WITH RESPECT TO THE
OCTOBER 10TH MEETING. HE CONCLUDED, HOWEVER, THAT THE COMPLAINANT HAD
KNOWLEDGE OF THE TESTING PROGRAM AS EVIDENCED BOTH BY THE TELEPHONE
CONVERSATION OF NOVEMBER 25 BETWEEN THE COMPLAINANT'S NATIONAL PRESIDENT
AND A REPRESENTATIVE OF THE RESPONDENT AND THE COMPLAINANT'S PROPOSALS
OF DECEMBER 4, ONE OF WHICH MADE REFERENCE TO "MONITORING QUALITY." /3/
WITH REGARD TO THE COMPLAINANT'S PROPOSALS OF DECEMBER 4, THE
ADMINISTRATIVE LAW JUDGE FOUND IT UNLIKELY THAT THE COMPLAINANT "WOULD
HAVE BEEN ACQUAINTED WITH THE 'MONITORING' PORTION OF THE PROGRAM AND
IGNORANT OF THE TESTING PROGRAM." /4/ ACCORDINGLY, THE ADMINISTRATIVE
LAW JUDGE CONCLUDED THAT THE RESPONDENT HAD TIMELY FULFILLED ITS
OBLIGATION OF NOTIFYING THE COMPLAINANT REGARDING THE CHANGE IN THE
TESTING PROGRAM THEREBY AFFORDING IT AN OPPORTUNITY TO REQUEST
BARGAINING ON IMPACT AND IMPLEMENTATION. ON THAT BASIS, HE RECOMMENDED
DISMISSAL OF THE COMPLAINT.
CONTRARY TO THE ADMINISTRATIVE LAW JUDGE'S CONCLUSION, I FIND THAT
THE COMPLAINANT WAS NOT FURNISHED SUFFICIENT NOTICE OF THE CHANGE IN THE
TESTING PROGRAM FOR THE TSRS, PRIOR TO ITS IMPLEMENTATION IN THE
JACKSONVILLE DISTRICT, TO ENABLE IT TO CONSIDER WHAT BARGAINING
REQUESTS, IF ANY, IT WOULD WISH TO MAKE WITH RESPECT TO IMPLEMENTATION
AND IMPACT OF THE CHANGE ON UNIT EMPLOYEES. THE NOVEMBER 25TH TELEPHONE
CONVERSATION AND THE DECEMBER 4TH PROPOSALS, UPON WHICH THE
ADMINISTRATIVE LAW JUDGE BASED HIS DETERMINATION THAT THE COMPLAINANT
HAD NOTICE OF THE CHANGE IN THE TESTING PROGRAM, OCCURRED AFTER THE
TESTING HAD ALREADY COMMENCED IN THE JACKSONVILLE DISTRICT DURING THE
WEEK OF NOVEMBER 17, 1975. UNDER THESE CIRCUMSTANCES, IN DECIDING
WHETHER THE COMPLAINANT WAS AFFORDED TIMELY NOTICE OF THE CHANGE IT IS
CRITICAL TO DETERMINE WHETHER THE RESPONDENT PROVIDED APPROPRIATE NOTICE
TO THE COMPLAINANT AT THE OCTOBER 10TH MEETING WHICH WAS PRIOR TO THE
COMMENCEMENT OF THE TESTING PROGRAM. /5/ AS NOTED ABOVE, THE
COMPLAINANT CONTENDED THAT THE OCTOBER 10TH MEETING WAS CALLED FOR THE
PURPOSE OF DISCUSSING TWO MAJOR TOPICS - THE DETAILING OF EMPLOYEES INTO
THE TAXPAYERS' SERVICE FUNCTION AND THE HIRING OF WAE EMPLOYEES - AND
THAT ONLY PASSING REFERENCE WAS MADE TO TESTING. THE RESPONDENT
ASSERTED THAT WHILE THE NEW TAXPAYERS' SERVICE PROGRAM WAS DISCUSSED IN
GENERAL, SPECIFIC MATTERS WERE TALKED ABOUT ALSO, INCLUDING THE MATTER
OF QUALITY CONTROL WHICH WAS TO BE ACHIEVED, IN PART, THROUGH A SERIES
OF PRE-TESTS AND POST-TESTS.
IN MY VIEW, EVEN ASSUMING ARGUENDO THAT SOME REFERENCE WAS, IN FACT,
MADE TO TESTING AT THE OCTOBER 10TH MEETING, THE EVIDENCE DOES NOT
ESTABLISH THAT A PROPOSED CHANGE IN THE TESTING PROGRAM WAS A SPECIFIC
SUBJECT OF THE MEETING, OR THAT AT THE MEETING THE RESPONDENT SO CLEARLY
INFORMED THE COMPLAINANT OF A CONTEMPLATED CHANGE IN THE ESTABLISHED
PRACTICES WITH RESPECT TO TESTING AS TO CONSTITUTE THE TYPE OF PRECISE
AND TIMELY NOTIFICATION ENVISAGED BY THE ORDER WHICH WOULD HAVE ENABLED
THE COMPLAINANT TO BARGAIN IN A MEANINGFUL MANNER, PRIOR TO THE CHANGE,
CONCERNING THE IMPACT AND IMPLEMENTATION OF THE MANAGEMENT DECISION.
ACCORDINGLY, AS, IN MY VIEW, THE RESPONDENT FAILED TO GIVE ADEQUATE
NOTICE TO THE COMPLAINANT OF THE CHANGE IN THE TESTING PROGRAM PRIOR TO
ITS INSTITUTION IN THE JACKSONVILLE DISTRICT OF THE IRS, AND THEREBY
FAILED TO AFFORD IT AN OPPORTUNITY TO REQUEST TIMELY BARGAINING ON THE
IMPACT AND IMPLEMENTATION OF SUCH A CHANGE, I FIND THAT THE RESPONDENT
FAILED TO MEET ITS BARGAINING OBLIGATION IN VIOLATION OF SECTION
19(A)(1) AND (6) OF THE ORDER.
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 INTERNAL REVENUE
SERVICE, JACKSONVILLE DISTRICT, JACKSONVILLE, FLORIDA SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING A CHANGE IN THE TESTING PROGRAM FOR INTERNAL REVENUE
SERVICE EMPLOYEES IN THE TAXPAYERS' SERVICE FUNCTION, REPRESENTED
EXCLUSIVELY BY THE NATIONAL TREASURY EMPLOYEES UNION, WITHOUT NOTIFYING
THE NATIONAL TREASURY EMPLOYEES UNION AND AFFORDING SUCH REPRESENTATIVE
THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN
EFFECTUATING SUCH CHANGE AND ON THE IMPACT OF SUCH CHANGE ON ADVERSELY
AFFECTED EMPLOYEES.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING 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 POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) UPON REQUEST, MEET AND CONFER WITH THE NATIONAL TREASURY
EMPLOYEES UNION, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS,
CONCERNING THE IMPACT ON ADVERSELY AFFECTED EMPLOYEES OF A CHANGE IN THE
TESTING PROGRAM IN THE TAXPAYERS' SERVICE FUNCTION WHICH CHANGE WAS
IMPLEMENTED DURING THE WEEK OF NOVEMBER 17, 1975.
(B) POST AT ALL INTERNAL REVENUE SERVICE, JACKSONVILLE DISTRICT,
FACILITIES AND INSTALLATIONS 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 JACKSONVILLE DISTRICT 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 203.27 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.
SEPTEMBER 7, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ AT THE HEARING, THE PARTIES STIPULATED THAT THE IRS OFFICIALS
PRESENT AT THE MEETING WERE ACTING AS AGENTS OF THE 57 IRS DISTRICT
OFFICES, INCLUDING THE JACKSONVILLE DISTRICT, AND THE NTEU OFFICIALS WHO
ATTENDED THE MEETING WERE ACTING AS AGENTS OF VARIOUS LOCAL NTEU
CHAPTERS WHICH HELD EXCLUSIVE RECOGNITIONS IN THE IRS, INCLUDING THE
NTEU'S FLORIDA JOINT COUNCIL, WHICH WAS THE EXCLUSIVELY RECOGNIZED
REPRESENTATIVE OF EMPLOYEES IN THE JACKSONVILLE DISTRICT.
/2/ THE RECORD REVEALS THAT IN PREVIOUS YEARS TSRS HAD RECEIVED
TRAINING TO ACQUAINT THEM WITH NEW DEVELOPMENTS IN THE TAX FILING
PROCEDURE IN PREPARATION FOR THE TAX FILING SEASON AND WERE TESTED TO
DETERMINE WHETHER THE TRAINING HAD BEEN EFFECTIVE. IN THE FALL OF 1975,
THE TESTING PROGRAM WAS CHANGED BY INSTITUTING A "PRE-TEST," DESIGNED TO
MEASURE THE LEVEL OF KNOWLEDGE PRIOR TO THE TRAINING PROGRAM, WHICH WAS
IN ADDITION TO, AND DIFFERENT FROM, THE "POST-TESTING" CONDUCTED
PREVIOUSLY.
/3/ THE ADMINISTRATIVE LAW JUDGE ALSO TOOK NOTE OF BUT MADE NO
FINDINGS WITH RESPECT TO A LETTER PURPORTEDLY SENT TO THE COMPLAINANT ON
SEPTEMBER 26, 1975, IN WHICH THE RESPONDENT INDICATED THAT A
REPRESENTATIVE SAMPLE OF TSRS IN FOUR IRS DISTRICT OFFICES (JACKSONVILLE
NOT AMONG THEM) WOULD BE USED TO PRELIMINARILY VALIDATE A SERIES OF
TESTS. I FIND THAT THIS LETTER DID NOT CONSTITUTE NOTICE TO THE NTEU OF
CHANGES IN THE TESTING PROGRAM INASMUCH AS IT DID NOT CONTAIN
INFORMATION RELATIVE TO THE TESTING PROGRAM IN THE JACKSONVILLE
DISTRICT, AND IT DID NOT CLEARLY INDICATE THAT THE TESTING PROGRAM WOULD
INCLUDE PRE-TESTING. FURTHER, THE PARTIES STIPULATED AT THE HEARING IN
THIS MATTER THAT THE RESPONDENT GAVE THE COMPLAINANT NO NOTICE OF ITS
INTENTION TO TEST TAXPAYERS' SERVICE EMPLOYEES IN NOVEMBER AND DECEMBER
OF 1975 OTHER THAN THAT WHICH IT CLAIMS TO HAVE GIVEN THROUGH ITS
REPRESENTATIVES AT THE OCTOBER 10TH MEETING.
/4/ IN VIEW OF THE DISPOSITION HEREIN, I FIND IT UNNECESSARY TO
DETERMINE WHETHER THIS PROPOSAL REFLECTED THE COMPLAINANT'S KNOWLEDGE OF
THE TESTING PROGRAM.
/5/ SEE FEDERAL RAILROAD ADMINISTRATION, A/SLMR NO. 418, WHERE THE
ASSISTANT SECRETARY STATED THAT, "THE RIGHT TO ENGAGE IN A DIALOGUE WITH
RESPECT TO MATTERS FOR WHICH THERE IS AN OBLIGATION TO MEET AND CONFER
BECOMES MEANINGFUL ONLY WHEN AGENCY MANAGEMENT HAS AFFORDED THE
EXCLUSIVE REPRESENTATIVE REASONABLE NOTIFICATION AND AN AMPLE
OPPORTUNITY TO EXPLORE FULLY THE MATTERS INVOLVED PRIOR TO TAKING
ACTION."
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS AND IN ORDER TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
AMENDED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INSTITUTE A CHANGE IN THE TESTING PROGRAM FOR INTERNAL
REVENUE SERVICE EMPLOYEES IN THE TAXPAYERS' SERVICE FUNCTION,
REPRESENTED EXCLUSIVELY BY THE NATIONAL TREASURY EMPLOYEES UNION,
WITHOUT NOTIFYING THE NATIONAL TREASURY EMPLOYEES UNION AND AFFORDING
SUCH REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES WHICH MANAGEMENT
WILL OBSERVE IN IMPLEMENTING SUCH CHANGE AND ON THE IMPACT THE CHANGE
WILL HAVE ON THE EMPLOYEES ADVERSELY AFFECTED BY SUCH ACTION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
EXECUTIVE ORDER.
WE WILL, UPON REQUEST, MEET AND CONFER WITH THE NATIONAL TREASURY
EMPLOYEES UNION, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS,
CONCERNING THE IMPACT ON ADVERSELY AFFECTED EMPLOYEES OF A CHANGE IN THE
TESTING PROGRAM IN THE TAXPAYERS' SERVICE FUNCTION WHICH CHANGE WAS
IMPLEMENTED DURING THE WEEK OF NOVEMBER 17, 1975.
(AGENCY OR ACTIVITY)
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 REGIONAL ADMINISTRATOR, LABOR-MANAGEMENT SERVICES
ADMINISTRATION, PEACHTREE STREET, N.E., ATLANTA, GEORGIA 30309.
IN THE MATTER OF:
JACKSONVILLE DISTRICT
INTERNAL REVENUE SERVICE
JACKSONVILLE, FLORIDA,
RESPONDENT,
CASE NO. 43-3334(CA)
AND
NATIONAL TREASURY EMPLOYEES
UNION,
COMPLAINANT.
HARRY G. MASON, ESQUIRE
REGIONAL OFFICE, INTERNAL REVENUE SERVICE,
SOUTHEAST REGION
POST OFFICE BOX 1074
ATLANTA, GEORGIA 30301,
FOR THE RESPONDENT
DIANE S. GREENBERG, ESQUIRE
ASSISTANT COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W.
WASHINGTON, D.C. 20005,
FOR THE COMPLAINANT.
BEFORE: PETER MCC. GIESEY
ADMINISTRATIVE LAW JUDGE
THIS IS A PROCEEDING BROUGHT UNDER THE TERMS OF EXECUTIVE ORDER
11491, AMENDED, (HEREAFTER, "THE ORDER") BY NATIONAL TREASURY EMPLOYEES
UNION (HEREAFTER, "THE UNION") AGAINST JACKSONVILLE DISTRICT, INTERNAL
REVENUE SERVICE (HEREAFTER, "JACKSONVILLE IRS"). THE UNION ASSERTS THAT
JACKSONVILLE IRS VIOLATED SECTIONS 19(A), (1) AND 19(A), (6) OF THE
ORDER BY IMPLEMENTING CERTAIN TESTING REQUIREMENTS FOR PERSONNEL ENGAGED
IN TAXPAYER ASSISTANCE DURING THE 1975 FILING SEASON WITHOUT INFORMING
THE UNION AND THEREBY PERMITTING THE UNION TIMELY TO REQUEST AND ENGAGE
IN NEGOTIATIONS ON IMPLEMENTATION AND IMPACT OF THE ASSERTEDLY NEW
POLICY OR PROCEDURE.
A HEARING WAS HELD IN JACKSONVILLE, FLORIDA ON NOVEMBER 29, 1976.
BRIEFLY, THE RECORD SHOWS THE FOLLOWING CIRCUMSTANCES.
STATEMENT OF THE CASE
THE FOLLOWING IS UNDISPUTED.
THE FLORIDA JOINT COUNCIL OF THE UNION IS THE EXCLUSIVE BARGAINING
AGENT OF EMPLOYEES IN A APPROPRIATE UNIT OF THE JACKSONVILLE IRS.
BY MUTUAL AGREEMENT, REPRESENTATIVES OF THE IRS MEET FROM TIME TO
TIME WITH REPRESENTATIVES OF THE UNION TO DISCUSS AND NEGOTIATE MATTERS
WHICH HAVE AGENCY WIDE APPLICATION.
SUCH A MEETING WAS HELD ON OCTOBER 10, 1975.
THE GENERAL COUNSEL OF THE UNION, WHO ATTENDED THE OCTOBER, 1975
MEETING, TESTIFIED THAT TWO "MAJOR TOPICS" WERE DISCUSSED, THE DETAILING
OF INCUMBENT EMPLOYEES TO TAXPAYER'S SERVICE (TAXPAYER SERVICE
REPRESENTATIVES, "TSRS") AND THE HIRING OF EXTRA PERSONNEL ON "WHEN
ACTUALLY EMPLOYED" ("WAE") STATUS FOR THE TSR FUNCTION. ACCORDING TO
THIS WITNESS "A PASSING REFERENCE TO TESTING OF TSRS" WAS MADE DURING
THE MEETING BY AN "OPERATING OFFICIAL" OF THE IRS. THE WITNESS STATED
THAT HE ASKED NO QUESTIONS CONCERNING THIS MATTER BECAUSE TESTING OF
TSRS WAS ACCOMPLISHED EACH YEAR. HE ASSERTED THAT HE "ONLY LEARNED MUCH
LATER THAT THE TESTING THAT WAS CONTEMPLATED IN THE LATE FALL OF '75 WAS
SIGNIFICANTLY DIFFERENT IN CONTENT AND THRUST THAN WAS THE TESTING THAT
HAD BEEN DONE IN PRIOR YEARS," THAT, WHEREAS TESTING HAD BEEN
ACCOMPLISHED FOLLOWING TRAINING IN YEARS BEFORE 1975, DURING THAT YEAR
TESTS WERE ADMINISTERED" AT THE BEGINNING OF THE PROGRAMS TO FIND OUT
THE LEVEL OF EXPERIENCE, THE LEVEL OF COMPETENCE" IN ORDER TO OFFER
TRAINING IN AREAS OF WEAKNESS. HE DENIED RECEIVING ANY WRITTEN NOTICE
OF THE NEW TESTING PROGRAM.
THIS UNION OFFICIAL TESTIFIED THAT "AS SOON AS WE LEARNED,
PARTICULARLY IN JACKSONVILLE, THAT THE (IRS) WAS INSTALLING A BRAND-NEW
TESTING PROGRAM (,W)E ALERTED ALL OF OUR CHAPTERS . . . AND DID REQUEST
NEGOTIATIONS . . .." HE STATED THAT BECAUSE "THE PROGRAM HAD BEGUN HERE
(IN JACKSONVILLE), THERE WAS NO WAY OF REACHING AGREEMENT ON ANY MATTER
BECAUSE THEY PUT IT IN PLACE WITHOUT (NOTICE) . . .."
ON CROSS EXAMINATION, THE GENERAL COUNSEL DEFINED THE DIFFERENCE IN
PROGRAMS AS HAVING "CREATED A TREMENDOUS NUMBER OF QUESTIONS (,W)HAT
HAPPENS TO ME IF I FAIL (,I)S THAT GOING TO REFLECT ON MY EVALUATION
(,A)M I GOING TO BE FIRED BECAUSE I FAILED THE TEST?" HE ALSO STATED
THAT "WE LEARNED LATER THAT THE WHOLE IDEA . . . WAS SO THAT PEOPLE
WOULD . . . BE MORE RECEPTIVE TO THE TRAINING."
RESPONDENT'S WITNESS, THE CHIEF OF ITS LABOR RELATIONS BRANCH, WHO
HAD ATTENDED THE OCTOBER, 1975 MEETING, TESTIFIED THAT THE MEETING WAS
HELD "TO MAKE SURE THAT (THE UNION) WAS AWARE OF WHAT THIS NEW
(TAXPAYERS' SERVICE) PROGRAM WOULD BE." HE STATED THAT THE PROGRAM WAS
DESCRIBED IN GENERAL BUT THAT "WE TALKED ABOUT SPECIFICS, ALSO." AMONG
THE LATTER, ACCORDING TO THE WITNESS, WAS AN EFFORT TO "BUILD GREATER
QUALITY CONTROL . . . (WHICH) GOING TO TAKE THE FORM OF TESTING
EMPLOYEES, PRETESTS AND POST TESTS . . . THERE WAS A PRE-TEST TO SEE
WHAT THEY KNEW AND THERE WERE POST TESTS TO SEE HOW SUCCESSFUL THE
TRAINING WAS IN PROVIDING THE INDIVIDUAL EMPLOYEE WITH THE TOOLS
NECESSARY TO PROVIDE A QUALITY JOB." ANOTHER PART OF THE "QUALITY
CONTROL" WAS TO CONSIST OF TELEPHONE MONITORING. HE TESTIFIED THAT,
"SOMEWHAT TO MY SURPRISE," THE UNION REPRESENTATIVES MADE NO COMMENT ON
THE "QUALITY CONTROL" PROGRAM BUT RESTRICTED THE DISCUSSION TO FURLOUGH
AND RECALL OF WAES AND DETAILING OF REGULAR EMPLOYEES TO THE TSR
FUNCTION.
HE ALSO TESTIFIED THAT, IN SEPTEMBER, 1975, A LETTER HAD BEEN SENT TO
THE UNION SETTING FORTH THE NEW TESTING PROGRAM. /1/ IN NOVEMBER, HE
RECEIVED A TELEPHONE CALL FROM THE NATIONAL PRESIDENT INFORMING HIM THAT
SOME OF THE EMPLOYEES WERE "CONCERNED ABOUT HOW THESE TEST RESULTS -
BOTH PRE-TEST AND POST TEST - WERE GOING TO BE USED." HE TESTIFIED THAT
HE STATED HE WOULD RETURN THE CALL ON THAT DAY, THAT HE DID;
AND READ HIM PORTIONS OF A TELEGRAM THAT WAS SENT WITHIN THE NEXT
COUPLE OF WEEKS TO ALL
REGIONAL COMMISSIONERS ACROSS THE COUNTRY WHICH INDICATED THAT THE
RESULTS OF THE PRETESTS AND
THE POST TESTS WERE NOT TO BE GIVEN TO -- PARTICULARLY IN THE CASE OF
PEOPLE THAT WERE BEING
DETAILED INTO TAXPAYERS' SERVICE -- WERE NOT TO BE GIVEN TO THEIR
SUPERVISORS AND WERE UNDER
NO CIRCUMSTANCES TO BE USED FOR EVALUATION PURPOSES, THAT THIS WAS
PART OF AN OVERALL QUALITY
CONTROL PROGRAM AND NOT TO GET AT INDIVIDUAL EMPLOYEES.
EARLY IN DECEMBER, THE UNION SUBMITTED PROPOSALS "IN RESPONSE TO THE
IRS ANNOUNCEMENT THAT IT INTENDS TO SUPPLEMENT THE TSR FUNCTION WITH WAE
EMPLOYEES." INTER ALIA, THE SIX PAGE PROPOSAL CONTAINS THE FOLLOWING
PARAGRAPH;
ANY RECORDATION MADE BY A SUPERVISOR AS A RESULT OF 'MONITORING
QUALITY' MUST BE SHOWN TO
THE EMPLOYEE AND THE EMPLOYEE MUST BE PROVIDED WITH AN OPPORTUNITY TO
RESPOND AS REQUIRED IN
ARTICLE 9, SECTION 2 OF THE NTEU-IRS MULTI-DISTRICT AGREEMENT.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
ALL WITNESSES WERE CREDIBLE. IT IS UNREMARKABLE THAT SOME WITNESSES
MEMORIES WERE MORE PRECISE THAN OTHERS. IT IS EQUALLY UNREMARKABLE THAT
RESPONDENT'S REPRESENTATIVE SHOULD TESTIFY TO HAVING PARTICIPATED IN
COMMUNICATING WITH THE UNION'S PRESIDENT AND THAT THE UNION'S GENERAL
COUNSEL SHOULD TESTIFY THAT HE DID NOT RECEIVE THE COMMUNICATION. IT IS
OF NO CONSEQUENCE THAT THIS UNION OFFICIAL ALSO TESTIFIED THAT HE COULD
"RECALL RECEIVING NO SUCH LETTER." THE LETTER WAS NOT ADDRESSED TO HIM
AND HIS TESTIMONY INDICATES THAT IT WAS NOT ROUTED TO HIM - REGARDLESS
OF THE FACT THAT SUCH MAIL "IS ROUTINELY ROUTED TO ME FOR PROCESSING" OR
THAT SUCH IS "A GENERAL PRACTICE." THE UNION OFFICIAL TO WHOM THE
SEPTEMBER, 1975, LETTER WAS ADDRESSED DID NOT TESTIFY. IN ANY CASE, I
CREDIT THE AGENCY OFFICIAL'S TESTIMONY THAT IN NOVEMBER HE PERSONALLY
INFORMED THE UNION'S PRESIDENT OF THE TESTING PROGRAM, PURPOSE AND THE
RESTRICTED USE OF TEST RESULTS. MOREOVER, THE UNION'S KNOWLEDGE OF THE
DETAILS OF THE "QUALITY CONTROL" PROGRAM IS ATTESTED TO BY ITS PROPOSALS
OF DECEMBER 4, 1975. I REGARD IT AS UNLIKELY IN THE EXTREME THAT UNION
WOULD HAVE BEEN ACQUAINTED WITH THE "MONITORING" PORTION OF THE PROGRAM
AND IGNORANT OF THE TESTING PROGRAM. THAT IS NOT TO SAY THAT THE SINGLE
OFFICIAL OF THE UNION WHO TESTIFIED TO HIS LACK OF KNOWLEDGE WAS IN ANY
WAY INCORRECT. IT IS SUFFICIENT THAT SOMEONE, IN THIS CASE THE NATIONAL
PRESIDENT, HAD SUCH KNOWLEDGE FAR ENOUGH IN ADVANCE TO ALLOW TIME FOR A
REQUEST AND FOR NEGOTIATION PURSUANT TO THAT REQUEST.
ACCORDINGLY, I FIND THAT RESPONDENT TIMELY FULFILLED ITS OBLIGATION
TO INFORM THE UNION OF THE CHANGE IN TERMS AND CONDITIONS OF EMPLOYMENT
OF CERTAIN OF THE EMPLOYEES REPRESENTED BY IT AND THUS AFFORDED THE
UNION REASONABLE OPPORTUNITY TO REQUEST TO MEET AND DISCUSS THE
IMPLEMENTATION AND IMPACT OF SUCH CHANGES.
RECOMMENDED ORDER
IT IS RECOMMENDED THAT THE ASSISTANT SECRETARY DISMISS THE COMPLAINT.
PETER MCC. GIESEY
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 23, 1977
WASHINGTON, D.C.
/1/ THE LETTER, ADDRESSED TO THE UNION'S NATIONAL PRESIDENT, STATES:
THIS IS TO INFORM YOU THAT THE IRS WILL BE UTILIZING A REPRESENTATIVE
SAMPLE OF 50-55
INCUMBENT TSR'S TO PRELIMINARILY VALIDATE A SERIES OF TESTS DESIGNED
TO MEASURE THE LEVEL OF
KNOWLEDGE ACHIEVED DURING THE SIX WEEK TRAINING COURSE FOR NEW TSR'S.
THESE EMPLOYEES WILL BE
TESTED OVER A FOUR-DAY PERIOD (9/30 - 10/3). WE PLAN TO CONDUCT THE
TESTS IN CHICAGO,
MANHATTAN, LOS ANGELES, AND PHILADELPHIA DISTRICTS. THE TESTS WILL
BE ADMINISTERED BY MEMBERS
OF THE NATIONAL OFFICE TAXPAYER SERVICE DIVISION AND TRAINING
DIVISION, AND RESULTS WILL BE
COMPLETELY CONFIDENTIAL, HAVING NO IMPACT ON THE SAMPLE GROUP. THE
TEST PARTICIPANTS' NAMES
WILL NOT APPEAR ON THE EXAMINATION.
7 A/SLMR 892; P. 753; CASE NO. 50-13196(CA); SEPTEMBER 1, 1977.
SEPTEMBER 1, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
U.S. AIR FORCE,
SCOTT AIR FORCE BASE
A/SLMR NO. 892
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY LOCAL
R7-23, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (COMPLAINANT)
ALLEGING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE
ORDER BY UNILATERALLY ALTERING THE WORDING OF A PROVISION OF A
NEGOTIATED AGREEMENT AFTER THE PARTIES PURPORTEDLY HAD REACHED AGREEMENT
ON SAID PROVISION.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT HAD NOT
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER. DURING A NEGOTIATION
SESSION ON MAY 10, 1976, THE PARTIES INITIALED EACH OTHER'S COPY OF A
SECTION OF A DRAFT NEGOTIATED AGREEMENT BELIEVING THEY HAD AGREED TO THE
SAME LANGUAGE IN THE SECTION. HOWEVER, THE COMPLAINANT'S COPY READ
"'EVERY' EFFORT HAS BEEN MADE" WHILE THE RESPONDENT'S COPY READ
"'NORMAL' EFFORTS . . . " THE RESPONDENT HAD A CLEAN COPY OF THE DRAFT
AGREEMENT TYPED FROM ITS COPY, INCORPORATING THE PHRASE "NORMAL EFFORTS"
IN THE DRAFT AGREEMENT. THE DRAFT AGREEMENT WAS SIGNED AT A CEREMONIAL
SIGNING ON JUNE 10, 1976, BY TWO OF THE THREE SIGNATORIES AND AFTER
REVIEW BY A HIGHER HEADQUARTERS IT WAS RETURNED TO THE RESPONDENT FOR
RE-NEGOTIATION OF SEVERAL PROVISIONS. THE COMPLAINANT THEN DISCOVERED
THE DISPARITY IN THE DRAFT AGREEMENT FROM ITS INITIALED COPY AND
PROTESTED THE USE OF THE WORDING "NORMAL EFFORTS." THE NEGOTIATED
AGREEMENT WHICH WAS ULTIMATELY SIGNED ON SEPTEMBER 3, 1976, OMITTED THE
SECTION OF THE AGREEMENT WHICH WOULD HAVE INCLUDED THE DISPUTED
PHRASING. THE COMPLAINANT SIGNED THE FINAL AGREEMENT UNDER PROTEST
BECAUSE OF THE OMISSION OF ITS VERSION OF THIS SECTION OF THE NEGOTIATED
AGREEMENT, WHICH IT ALLEGED WAS AGREED TO BY ALL PARTIES ON MAY 10,
1976.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE PARTIES DID NOT REACH AN
ACCORD CONCERNING THE CONTENTS OF THE DISPUTED SECTION OF THE AGREEMENT,
PARTICULARLY WITH RESPECT TO THE USE OF THE PHRASE "EVERY EFFORT" AS
OPPOSED TO "NORMAL EFFORTS." ACCORDINGLY, HE FOUND THAT THE RESPONDENT
DID NOT VIOLATE SECTION 19(A)(1) AND (6) OF THE ORDER BY UNILATERALLY
ALTERING ANY AGREED UPON PROVISION OR BY ULTIMATELY OMITTING THAT
SECTION FROM THE FINAL VERSION OF THE AGREEMENT.
NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE ASSISTANT
SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
ADMINISTRATIVE LAW JUDGE, AND ORDERED THAT THE COMPLAINT BE DISMISSED IN
ITS ENTIRETY.
U.S. AIR FORCE,
SCOTT AIR FORCE BASE
RESPONDENT
CASE NO. 50-13196(CA)
AND
LOCAL R7-23, NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES /1/
COMPLAINANT
DECISION AND ORDER
ON JUNE 3, 1977, ADMINISTRATIVE LAW JUDGE ROBERT J. FELDMAN ISSUED
HIS RECOMMENDED DECISION 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
RECOMMENDED DECISION.
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
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.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 50-13196(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 1, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ THE DESIGNATION OF THE COMPLAINANT ON THE TITLE SHEET OF THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION WAS INADVERTENTLY SET
FORTH AS "LOCAL R7-23, NATIONAL ASSOCIATION OF ENVIRONMENT EMPLOYEES,"
INSTEAD OF "LOCAL R7-23, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES."
SUCH INADVERTANCE IS HEREBY CORRECTED.
IN THE MATTER OF
U.S. AIR FORCE, SCOTT AIR
FORCE BASE
RESPONDENT
CASE NO. 50-13196(CA)
AND
LOCAL R7-23, NATIONAL ASSOCIATION
OF ENVIRONMENT EMPLOYEES
COMPLAINANT
TIMOTHY J. DAKIN, MAJOR, USAF
OFFICE OF THE STAFF JUDGE ADVOCATE
MILITARY AIRLIFT COMMAND
SCOTT AIR FORCE BASE, ILLINOIS 62225
FOR THE COMPLAINANT
BEFORE: ROBERT J. FELDMAN
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION
THIS IS AN UNFAIR LABOR PRACTICE PROCEEDING IN WHICH A FORMAL HEARING
OF RECORD WAS HELD PURSUANT TO EXECUTIVE ORDER 11491 AS AMENDED
(HEREINAFTER REFERRED TO AS THE ORDER). RESPONDENT WAS CHARGED WITH
VIOLATING SECTIONS 19(A)(1) AND 19(A)(6) BY UNILATERALLY ALTERING THE
WORDING OF A PROVISION OF A COLLECTIVE BARGAINING AGREEMENT AFTER A
FINAL ACCORD WAS PURPORTEDLY REACHED UPON SUCH PROVISION. UPON ALL THE
EVIDENCE ADDUCED, MY OBSERVATION OF THE WITNESSES, AND MY JUDGEMENT OF
THEIR CREDIBILITY, I MAKE THE FINDINGS OF FACT AND REACH THE CONCLUSIONS
OF LAW SET FORTH BELOW.
FINDINGS OF FACT
1. COMPLAINANT IS THE AUTHORIZED REPRESENTATIVE OF COLLECTIVE
BARGAINING UNITS COMPOSED OF CERTAIN NON-SUPERVISORY AIR FORCE GENERAL
SCHEDULE EMPLOYEES ASSIGNED TO SCOTT AIR FORCE BASE AND ALL
NON-SUPERVISORY PROFESSIONAL AND NON-PROFESSIONAL GENERAL SCHEDULE
EMPLOYEES OF DECCO, DEFENSE COMMUNICATIONS AGENCY (DCA), SCOTT AIR FORCE
BASE.
2. FROM THE FALL OF 1975 THROUGH THE SPRING OF 1976 THE PARTIES WERE
ENGAGED FROM TIME-TO-TIME IN NEGOTIATING A NEW COLLECTIVE BARGAINING
AGREEMENT.
3. UNDER DATE OF FEBRUARY 3, 1976, THE CIVILIAN PERSONNEL OFFICER ON
BEHALF OF THE BASE COMMANDER ADDRESSED A LETTER TO THE PRESIDENT OF THE
UNION LISTING CERTAIN ARTICLES PROPOSED BY THE UNION WHICH MANAGEMENT
CONSIDERED TO BE NON-NEGOTIABLE IN THAT THEY VIOLATED SPECIFIC SECTIONS
OF ORDER OR OF IDENTIFIED REGULATIONS. AMONG THEM WAS THE FOLLOWING,
WITHOUT SPECIFICATION OF THE SECTION OF THE ORDER OR THE REGULATION
WHICH IT PURPORTED TO VIOLATE:
F. ARTICLE XVII, SECTION 6.
"THE GEOGRAPHICAL AREA OF CONSIDERATION WILL BE EXPANDED BEYOND SCOTT
AFB ONLY AFTER EVERY
EFFORT HAS BEEN MADE TO ATTRACT QUALIFIED APPLICANTS LOCALLY. A COPY
OF RATIONALE AND
JUSTIFICATION OF EXPANDING THE GEOGRAPHICAL AREA WILL BE FURNISHED
THE UNION."
4. ON MAY 10, 1976, THE PARTIES MET AND ENGAGED IN WHAT WAS THOUGHT
TO BE THEIR FINAL NEGOTIATION OF CERTAIN DISPUTED PROVISIONS OF ARTICLE
XVII ENTITLED "PROMOTIONS AND HIRING", AMONG WHICH WAS THE ABOVE-QUOTED
SECTION. THE CHIEF NEGOTIATOR FOR THE UNION, ONE HAYES, WAS ACCOMPANIED
BY THE PRESIDENT OF THE UNION AND TWO OTHER REPRESENTATIVES, ONE OF WHOM
ATTENDED ONLY PART OF THE SESSION. THE CHIEF NEGOTIATOR FOR MANAGEMENT,
ONE ARTMAN, WAS ACCOMPANIED BY A CIVILIAN ATTORNEY EMPLOYED IN THE
OFFICE OF THE BASE JUDGE ADVOCATE AND BY A REPRESENTATIVE OF DECCO.
5. AT THIS SESSION, THE ABOVE-QUOTED SECTION 6 WAS RENUMBERED
SECTION 7; FOLLOWING THE SUGGESTION OF HAYES TO THE EFFECT THAT THE
LANGUAGE OUGHT TO BE CHANGED TO CONFORM WITH PERTINENT PROVISIONS OF THE
FEDERAL PERSONNEL MANUAL, SO MUCH OF THE FIRST SENTENCE OF RENUMBERED
SECTION 7 FOLLOWING THE WORD "ATTRACT" WAS CHANGED TO READ: "AT LEAST
THREE HIGHLY QUALIFIED EMPLOYEES, EXCEPT FOR POSITIONS INCLUDED IN AN
AIR FORCE-WIDE CAREER PROGRAM (GS-13 AND ABOVE)"; AND THE SECOND
SENTENCE OF THAT SECTION WAS DELETED AND REPLACED BY THE FOLLOWING:
"THIS SECTION DOES NOT RESTRICT CONSIDERATION OF VOLUNTARY OR CONCURRENT
APPLICATIONS ON FILE AT THE TIME THE SF-52 IS EXECUTED BY THE
SUPERVISOR."
6. IN ADDITION TO THE ABOVE MODIFICATIONS, AS TO WHICH THERE IS NO
DISPUTE, THERE WAS DISCUSSION AS TO WHETHER THE WORDS "EVERY EFFORT"
SHOULD BE CHANGED TO "NORMAL", BUT HAYES DID NOT EXPRESS HIS ASSENT TO
SUCH CHANGE.
7. THE REVISED SECTIONS OF ARTICLE XVII WERE THEN SIGNED-OFF, WITH
THE MODIFICATIONS STATED IN FINDING NO. 5 ABOVE INTERLINEATED BY HAND IN
THE RESPECTIVE TYPEWRITTEN COPIES OF THE ORIGINAL PROPOSAL USED BY THE
PARTIES AS WORKING DRAFTS IN THE NEGOTIATIONS. EACH OF SUCH WORKING
DRAFTS WAS SIGNED BY THE PRESIDENT OF THE UNION AND WAS INITIALED BY
ARTMAN ON BEHALF OF MANAGEMENT.
8. THE WORKING DRAFT RETAINED BY THE UNION AND BEARING ARTMAN'S
INITIALS CONTAINS NO CHANGE IN THE PHRASE "EVERY EFFORT".
9. THE WORKING DRAFT RETAINED BY MANAGEMENT AND BEARING THE
SIGNATURE OF THE UNION PRESIDENT CONTAINS THE FOLLOWING CHANGE: THE
WORD "EVERY: IS CROSSED OUT AND ABOVE IT IS THE HANDWRITTEN WORD
"NORMAL".
10. ON OR ABOUT MAY 11, 1976, A CLERK-STENO EMPLOYED IN THE CIVILIAN
PERSONNEL OFFICE AT SCOTT AFB TYPED OUT A CLEAN DRAFT OF THE SECTIONS OF
ARTICLE XVII WHICH HAD BEEN SIGNED-OFF BY THE PARTIES AT THE MAY 10
SESSION. ARTMAN'S VERSION OF THE RENUMBERED SECTION 7, CONTAINING THE
WORD "NORMAL" IN LIEU OF THE WORD "EVERY" (SEE RESPONDENT'S EXHIBIT A),
WAS GIVEN TO HER TO COPY. SHE WAS NOT INSTRUCTED THAT AN EXACT,
FAITHFUL COPY WAS REQUIRED, SO ON HER OWN INITIATIVE, AND WITH NO REGARD
FOR THE SANCTITY OF A SIGNED DOCUMENT, SHE MADE A FURTHER CHANGE IN THE
WORDING, SUBSTITUTING FOR THE PHRASE "AFTER EVERY EFFORT HAS BEEN MADE"
IN THE ORIGINAL PROPOSAL (COMPLAINANT'S EXHIBIT 1) THE PHRASE "AFTER
NORMAL EFFORTS HAVE BEEN MADE".
11. ON JUNE 9, 1976, ARTMAN DELIVERED TO THE SECRETARY OF THE DECCO
REPRESENTATIVE A DOCUMENT PURPORTING TO BE A COMPLETED FINAL DRAFT OF
THE COLLECTIVE BARGAINING AGREEMENT, CONSISTING OF A PREAMBLE AND 34
ENUMERATED ARTICLES. THE SECRETARY MADE FOUR OR FIVE XEROXED COPIES OF
THAT DOCUMENT, RETAINED ONE STAPLED COPY IN THE DECCO LABOR/MANAGEMENT
FILES, AND TURNED OVER THE REMAINING COPIES TO ARTMAN.
12. THE COMPLETED FINAL DRAFT OF THE AGREEMENT CONTAINED THE
FOLLOWING SECTION:
SECTION 7: THE GEOGRAPHICAL AREA OF CONSIDERATION WILL BE EXPANDED
BEYOND SCOTT AFB ONLY
AFTER NORMAL EFFORTS HAVE BEEN MADE TO ATTRACT AT LEAST THREE HIGHLY
QUALIFIED EMPLOYEES,
EXCEPT FOR POSITIONS INCLUDED IN AN AIR FORCE-WIDE CAREER PROGRAM
(GS-13 AND ABOVE). THIS
SECTION DOES NOT RESTRICT CONSIDERATION OF VOLUNTARY OR CONCURRENT
APPLICATIONS ON FILE AT THE
TIME THE SF-52 IS EXECUTED BY THE SUPERVISOR. (RESPONDENT'S EXHIBIT
E)
13. A CEREMONIAL SIGNING OF THE COMPLETED FINAL DRAFT WAS HELD ON
JUNE 10, 1976. THE ACTUAL PARTICIPANTS WERE THE PRESIDENT OF THE UNION
AND THE BASE COMMANDER; THE THIRD SIGNATORY, THE DECCO COMMANDER, WAS
NOT PRESENT.
14. UPON ARTMAN'S REPRESENTATION THAT THE AGREEMENT COULD NOT BECOME
EFFECTIVE UNTIL APPROVED BY HEADQUARTERS, MILITARY AIRLIFT COMMAND
(MAC), AND WITH THE UNDERSTANDING THAT FINAL PROOF READING AND EDITING
OF THE AGREEMENT WAS TO BE DEFERRED UNTIL SUCH TIME AS IT WAS READY FOR
REPRODUCTION ON THE 20% REDUCTION SHEETS AFTER SUCH MAC APPROVAL, THE
UNION PRESIDENT SIGNED THE SIGNATURE PAGE OF THE COMPLETED FINAL DRAFT.
THE SIGNATURE PAGE WAS ALSO SIGNED BY THE BASE COMMANDER AT THE SAME
TIME.
15. SOME TIME DURING THE MONTH OF AUGUST, 1976, THE UNION PRESIDENT
PROOF-READ THE ENTIRE AGREEMENT AS PREPARED ON THE 20% REDUCTION SHEETS
USED FOR REPRODUCTION PURPOSES AT THE BASE PRINTING PLANT; AND IN THE
PROCESS OF SUCH PROOF-READING DISCOVERED THE DISCREPANCY BETWEEN ARTICLE
XVII, SECTION 7 AS RECORDED IN THE COMPLETED FINAL DRAFT AND SUCH
SECTION AS IT APPEARED IN THE SIGNED-OFF COPY RETAINED BY THE UNION
(COMPLAINANT'S EXHIBIT 1).
16. THE UNION PRESIDENT THEREUPON REQUESTED ARTMAN AND THE CIVILIAN
PERSONNEL OFFICER TO CHANGE THE WORD "NORMAL" BACK TO "EVERY", BUT HER
REQUEST WAS REFUSED.
17. ON SEPTEMBER 3, 1976, THE LABOR/MANAGEMENT AGREEMENT WAS DULY
EXECUTED IN FINAL FORM BY ALL THREE SIGNATORIES WITH SECTION 7 OF
ARTICLE XVII OMITTED.
18. BY LETTER TO THE BASE COMMANDER DATED SEPTEMBER 3, 1976, THE
UNION PRESIDENT STATED THAT SHE WAS SIGNING SUCH LABOR/MANAGEMENT
AGREEMENT UNDER PROTEST WITH THE UNDERSTANDING THAT IT IS PRINTED WITH
SECTION 7, ARTICLE XVII OMITTED.
CONCLUSIONS OF LAW
THE ISSUES HEREIN WERE FRAMED BY THE ACTING REGIONAL ADMINISTRATOR
AND ACCEPTED BY THE PARTIES' REPRESENTATIVES AS FOLLOWS: (1) WHETHER OR
NOT THE PARTIES WITHIN THE CONTEXT OF A COLLECTIVE BARGAINING SESSION
HELD ON MAY 10, 1976, REACHED AN ACCORD CONCERNING THE CONTENTS OF
ARTICLE XVII, SECTION 7 OF THEIR AGREEMENT; (2) IF A FINAL ACCORD WAS
REACHED, WHETHER OR NOT THE WORDING OF THE AFOREMENTIONED PROVISIONS OF
THE AGREEMENT WAS SUBSEQUENTLY UNILATERALLY ALTERED BY RESPONDENT IN
VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER.
WITH REFERENCE TO THE EXTENT OF THE EFFORT TO BE MADE TO ATTRACT THE
QUALIFIED EMPLOYEES MENTIONED IN SECTION 7, COMPLAINANT'S REPRESENTATIVE
ACKNOWLEDGES THAT IT DOES NOT MAKE ANY MATERIAL DIFFERENCE WHETHER IT'S
"NORMAL" OR WHETHER IT'S "EVERY" (TR. 1-81). RATHER, HE CONTENDS, THE
ISSUE IS ONE OF PRINCIPLE. NO QUESTION OF PRINCIPLE ARISES, HOWEVER,
UNLESS AND UNTIL IT IS ESTABLISHED THAT THERE WAS A MEETING OF THE MINDS
ON THE WORDING ALLEGED TO HAVE BEEN CHANGED.
IT IS CLEAR FROM THE EVIDENCE THAT PREVIOUS TO THE SIGNING-OFF OF
SECTION 7, THERE WAS SOME DISCUSSION AS TO WHETHER OR NOT THE PHRASE
"EVERY EFFORT" SHOULD BE MODIFIED TO "NORMAL EFFORT", CONCERN BEING
EXPRESSED ON THE MANAGEMENT TEAM THAT THE FORMER MIGHT IMPOSE AN UNDUE
BURDEN ON THE PERSONNEL STAFF AND MIGHT IMPEDE THE HIRING PROCESS. IT
IS ALSO CLEAR THAT HAYES, AS CHIEF NEGOTIATOR FOR THE UNION, DID NOT
VERBALIZE OR OTHERWISE EXPRESS HIS ASSENT TO SUCH CHANGE. IT IS EQUALLY
APPARENT THAT ARTMAN, AS CHIEF NEGOTIATOR FOR THE AGENCY, DID NOT
VERBALIZE OR OTHERWISE EXPRESS HIS ASSENT TO THE USE OF THE PHRASE
"EVERY EFFORT" IN THE UNION PROPOSAL, NOR CAN ANY SUCH ASSENT BE IMPLIED
IN VIEW OF THE FACT THAT THE RESPONDENT HAD DECLARED THE ENTIRE SECTION
AS NON-NEGOTIABLE AND THE ENTIRE SECTION WAS TREATED BY BOTH PARTIES AS
OPEN.
IT MUST BE REMEMBERED THAT A SIGNED-OFF PORTION OF A PROSPECTIVE
COLLECTIVE BARGAINING AGREEMENT IS NOT A CONTRACT PER SE. IT IS ONLY
DOCUMENTARY EVIDENCE THAT THE PARTIES HAVE REACHED A MUTUAL
UNDERSTANDING WITH RESPECT TO THAT PARTICULAR SECTION OR ARTICLE, AS THE
CASE MAY BE, DURING THE COURSE OF NEGOTIATING THE ENTIRE AGREEMENT.
CONSEQUENTLY, INSTEAD OF PROOF THAT THE PARTIES WERE IN AGREEMENT ON THE
EXACT LANGUAGE TO BE EMPLOYED, WE HAVE ON THE ONE HAND, DOCUMENTARY
EVIDENCE THAT THEY AGREED TO USE THE WORD "EVERY"; AND ON THE OTHER
HAND, DOCUMENTARY EVIDENCE THAT THEY AGREED TO USE THE WORD "NORMAL".
IN THE ABSENCE OF OTHER CREDIBLE EVIDENCE OF MUTUAL CONSENT, THE
REASONABLE INFERENCE TO BE DRAWN IS THAT THE PARTIES DID NOT IN FACT
REACH AN AGREEMENT ON THE USE OF EITHER WORD.
COMPLAINANT IN EFFECT ACCUSES ARTMAN OF A SPECIES OF FORGERY,
CLAIMING THAT HE CROSSED OUT THE WORD "EVERY" AND INSERTED THE WORD
"NORMAL" ON HIS COPY OF THE REVISED SECTION 7 (RESPONDENT'S EXHIBIT A)
AFTER IT HAD BEEN SIGNED-OFF BY THE UNION PRESIDENT. TO SUPPORT THIS
ALLEGATION, THE UNION PRESIDENT TESTIFIED THAT WHEN SHE SIGNED-OFF
ARTMAN'S COPY OF THE REVISED SECTION, THE WORD "EVERY" WAS NOT CROSSED
OUT AND THE WORD "NORMAL" WAS NOT INSERTED. IT IS APPARENT FROM HER
ENTIRE TESTIMONY, HOWEVER, THAT HER STATEMENT TO THAT EFFECT WAS NOT
BASED UPON ACTUAL, VISUAL RECOLLECTION, BUT WAS FOUNDED UPON AN IMPLICIT
FAITH IN HER OWN INFALLIBILITY WITH RESPECT TO HER INVARIABLE PRACTICE
OF NOT SIGNING-OFF ON MANAGEMENT'S COPY OF ANY SECTION WITHOUT COMPARING
IT WITH HER OWN COPY. IT IS NOT A NECESSARY INFERENCE FROM HER
TESTIMONY THAT THE ALTERATION MUST HAVE TAKEN PLACE AFTER SHE
SIGNED-OFF. IT IS NOT UNREASONABLE TO INFER INSTEAD THAT AMONG ALL THE
OTHER INTERLINEATIONS APPEARING ON ARTMAN'S COPY, THE UNION PRESIDENT
SIMPLY DID NOT NOTICE THAT THE WORD "EVERY" HAD BEEN CHANGED TO
"NORMAL". COMPLAINANT HAS NOT ESTABLISHED BY A FAIR PREPONDERANCE OF
THE CREDIBLE EVIDENCE THAT ANY POST-SIGNING-OFF ALTERATION WAS MADE.
UPON ALL THE EVIDENCE ADDUCED, I CONCLUDE THAT THE PARTIES DID NOT
REACH AN ACCORD CONCERNING THE CONTENTS OF ARTICLE XVII, SECTION 7,
PARTICULARLY WITH RESPECT TO USE OF THE PHRASE "EVERY EFFORT" AS OPPOSED
TO "NORMAL EFFORTS". CONSEQUENTLY I MUST CONCLUDE THAT RESPONDENT DID
NOT VIOLATE SECTION 19(A)(1) OR (6) OF THE ORDER BY UNILATERALLY
ALTERING ANY AGREED PROVISION OR BY OMITTING THAT SECTION FROM THE FINAL
VERSION OF THE CONTRACT.
RECOMMENDATION
ON THE BASIS OF THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF
LAW, I HEREBY RECOMMEND TO THE ASSISTANT SECRETARY THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY.
ROBERT J. FELDMAN
ADMINISTRATIVE LAW JUDGE
DATED: JUNE 3, 1977
WASHINGTON, D. C.
/1/ THE DESIGNATION OF THE COMPLAINANT ON THE TITLE SHEET OF THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION WAS INADVERTENTLY SET
FORTH AS "LOCAL R7-23, NATIONAL ASSOCIATION OF ENVIRONMENT EMPLOYEES,"
INSTEAD OF "LOCAL R7-23, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES."
SUCH INADVERTANCE IS HEREBY CORRECTED.
7 A/SLMR 891; P. 744; CASE NO. 72-6132(CA); SEPTEMBER 1, 1977.
SEPTEMBER 1, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
U.S. DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT, LOS ANGELES
AREA OFFICE
A/SLMR NO. 891
THIS CASE INVOLVED AN AMENDED UNFAIR LABOR PRACTICE COMPLAINT FILED
BY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 477 (NFFE)
ALLEGING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE
ORDER BY: (1) NOT PROVIDING A SUBSTANTIVE RESPONSE TO THE NFFE'S
REQUEST FOR INFORMATION CONCERNING A CONTEMPLATED ADVERSE ACTION AGAINST
EMPLOYEE RUSSELL EATON, A MEMBER OF THE BARGAINING UNIT; (2) FAILING TO
INFORM EATON OF HIS RIGHT TO UNION REPRESENTATION AT A MEETING
CONCERNING A PROPOSED ADVERSE ACTION, ON NOVEMBER 10, 1975, AS REQUIRED
BY ARTICLE 12.2 OF THE PARTIES' NEGOTIATED AGREEMENT; AND (3)
DISCRIMINATING AGAINST EATON BY ASSIGNING HIM TO CLERICAL DUTIES AFTER
HE WAS INFORMED OF HIS IMMINENT TERMINATION.
IN HER RECOMMENDED DECISION AND ORDER, THE ADMINISTRATIVE LAW JUDGE
CONCLUDED THAT THE RESPONDENT HAD NOT VIOLATED SECTION 19(A)(1) AND (6)
OF THE ORDER. IN THIS REGARD, SHE CONCLUDED THAT: (1) THE RESPONDENT'S
ACTION IN FAILING TO RESPOND SUBSTANTIVELY TO THE NFFE'S REQUEST FOR
INFORMATION WAS BASED UPON THE FAILURE OF THE NFFE TO INDICATE THAT
EATON HAD DESIGNATED THE NFFE AS HIS REPRESENTATIVE, AND DID NOT REFLECT
UNION ANIMUS; (2) ARTICLE 12.2 OF THE PARTIES' NEGOTIATED AGREEMENT
PROVIDES THAT EMPLOYEES UNDER INVESTIGATION MUST BE NOTIFIED OF THEIR
RIGHT TO REPRESENTATION, AND THE RESPONDENT COMPLIED THEREWITH AT THE
INITIAL STAGE OF THE CONTINUING INVESTIGATION. ARTICLE 13 OF THE
AGREEMENT PROVIDES THAT EMPLOYEES ARE ENTITLED TO REPRESENTATION AT
MEETINGS CONCERNING PROPOSED ADVERSE ACTIONS, BUT DOES NOT SPECIFY THAT
THE EMPLOYEE MUST BE SO ADVISED, AND EATON DID NOT ASK FOR ANY SUCH
REPRESENTATION AT THE NOVEMBER 10, 1975, MEETING. FURTHER, THE
RESPONDENT WAS NOT OBLIGATED TO AFFORD THE NFFE AN OPPORTUNITY TO BE
PRESENT AT THE NOVEMBER 10, 1975, MEETING AS SUCH MEETING WAS NOT A
FORMAL DISCUSSION WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER. (3)
THE ASSIGNMENT OF EATON TO CLERICAL DUTIES WAS NOT HARASSMENT OR
COERCION UNDER THE ORDER SINCE THERE WAS NO EVIDENCE OF UNION ANIMUS ON
THE PART OF THE RESPONDENT. ACCORDINGLY, THE ADMINISTRATIVE LAW JUDGE
RECOMMENDED THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE ASSISTANT
SECRETARY ADOPTED THE FINDINGS AND RECOMMENDATIONS OF THE ADMINISTRATIVE
LAW JUDGE, AND HE ORDERED THAT THE COMPLAINT BE DISMISSED IN ITS
ENTIRETY.
U.S. DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT, LOS ANGELES
AREA OFFICE
RESPONDENT
CASE NO. 72-6132(CA)
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 477
COMPLAINANT
DECISION AND ORDER
ON APRIL 13, 1977, ADMINISTRATIVE LAW JUDGE JOAN WIEDER ISSUED HER
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. NO EXCEPTIONS WERE FILED 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, AND NOTING PARTICULARLY
THE ABSENCE OF EXCEPTIONS, I HEREBY ADOPT THE ADMINISTRATIVE LAW JUDGE'S
FINDINGS AND RECOMMENDATIONS.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 72-6132(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 1, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
SUITE 700-1111 20TH STREET, N.W.
WASHINGTON, D.C. 20036
211 MAIN STREET, SUITE 528
SAN FRANCISCO, CALIFORNIA 94105
IN THE MATTER OF
UNITED STATES DEPARTMENT OF
HOUSING AND URBAN DEVELOPMENT
LOS ANGELES AREA OFFICE,
RESPONDENT
CASE NO. 72-6132 (CA)
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 477,
COMPLAINANT
IRWIN B. ROSENSTEIN, ESQUIRE
AREA COUNSEL
2500 WILSHIRE BOULEVARD
LOS ANGELES, CALIFORNIA 90057
FOR THE RESPONDENT
BRUCE M. STARK, ESQUIRE
10203 SANTA MONICA BOULEVARD, SUITE 301
LOS ANGELES, CALIFORNIA 90067
FOR THE COMPLAINANT
BEFORE: JOAN WIEDER
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
THIS PROCEEDING AROSE UPON THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT, ON JUNE 23, 1975, WHICH WAS AMENDED OCTOBER 20, 1975, BY W.
PEDRO NEWBERN II, FIRST VICE-PRESIDENT, LOCAL 477 OF THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES AGAINST THE LOS ANGELES OFFICE OF THE
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HEREINAFTER REFERRED TO AS
RESPONDENT). AS AMENDED, THE COMPLAINT ALLEGED THAT THE RESPONDENT
ENGAGED IN CERTAIN CONDUCT DURING A MEETING WITH AN EMPLOYEE ON NOVEMBER
10, 1975, AND CERTAIN ACTIVITIES RELATIVE THERETO WHICH ARE VIOLATIVE OF
SECTIONS 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED
(HEREINAFTER REFERRED TO AS THE ORDER).
THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT MESSRS. DONALD PHILLIPS AND
GEORGE TOUSIGNANT MET WITH MR. RUSSELL EATON, A MEMBER OF LOCAL 477,
REGARDING THE POTENTIAL IMPLEMENTATION OF ADVERSE ACTION AGAINST MR.
EATON WITHOUT INFORMING MR. EATON OF HIS RIGHT TO UNION REPRESENTATION
OR HIS RIGHT TO APPEAL AND THAT THESE ACTIONS FAILED TO ACCORD LOCAL 477
PROPER RECOGNITION CONSONANT WITH THE TERMS OF ARTICLE 3.1 OF THE
AGREEMENT. IT IS FURTHER ALLEGED THAT CORRESPONDENCE REGARDING
MANAGEMENT'S ACTION TOWARD MR. EATON WAS NOT SUBSTANTIVELY RESPONDED TO,
WHICH FURTHER FAILED TO ACCORD PROPER RECOGNITION TO LOCAL 477. AND
FINALLY, THE ASSIGNMENT OF MR. EATON TO CLERICAL DUTIES WITHOUT A FORMAL
DETAIL WAS DEMEANING AND HUMILIATING AND, THEREFORE, CONSTITUTED
HARASSMENT AND COERCION OF A UNION MEMBER.
A HEARING WAS HELD ON THIS CASE ON JANUARY 6, 1977, AS LOS ANGELES,
CALIFORNIA. THE PARTIES THROUGH THEIR COUNSEL WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, TO
INTRODUCE EVIDENCE AND FILE BRIEFS IN SUPPORT OF THEIR POSITIONS.
PRELIMINARY MOTION
ON FEBRUARY 14, 1977, THE ATTORNEY FOR COMPLAINANT MOVED FOR LEAVE TO
FILE A LATE BRIEF ON THE GROUND THAT A COPY OF THE TRANSCRIPT HAD NOT
BEEN RECEIVED. BRIEFS WERE DUE NO LATER THAN FEBRUARY 7, 1977.
RESPONDENT'S ATTORNEY HAS FILED A STATEMENT IN OPPOSITION TO THE MOTION
FOR CONTINUANCE. ALTHOUGH THE REQUEST FOR AN EXTENSION OF TIME WAS NOT
TIMELY FILED UNDER SECTION 203.22 OF THE RULES AND REGULATIONS, THE
MOTION CAN BE CONSIDERED UNDER SECTION 203.19 AND OTHER PERTINENT
SECTIONS OF THE RULES AND REGULATIONS. THE CLAIMANT'S BRIEF CLEARLY IS
NOT A REPLY BRIEF. COUNSEL FOR CLAIMANT WAS DILATORY IN HIS REQUEST.
HOWEVER, THE FACT THAT THE TRANSCRIPTS HAD NOT BEEN RECEIVED COULD HAVE
CAUSED HIS CONFUSION SINCE THE BRIEF DATE WAS SET SEVEN DAYS AFTER THE
DATE TRANSCRIPTS SHOULD HAVE BEEN RECEIVED. ADDITIONALLY, IT IS
PATENTLY CLEAR THAT RESPONDENT, WHO WAS TIMELY IN ITS FILING, WILL NOT
BE HARMED SINCE THE CONTENTS OF COMPLAINANT'S BRIEF CLEARLY DOES NOT
REPLY TO RESPONDENT'S BRIEF. ACCORDINGLY, COMPLAINANT'S MOTION WILL BE
GRANTED, AND HIS REPLY BRIEF DATED FEBRUARY 16, 1977, CONSIDERED.
COMPLAINANT ALSO SEEKS TO HAVE RESPONDENT'S BRIEF DISREGARDED. THIS
REQUEST IS DENIED. THE DECISION REACHED HEREIN IS PREDICATED SOLELY
UPON THE EVIDENCE OF RECORD AND THE APPLICABLE LAW.
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:
ISSUES
1. DID THE COLLECTIVE BARGAINING AGREEMENT IMPOSE UPON RESPONDENT AN
AFFIRMATIVE DUTY TO INFORM MR. EATON OF HIS RIGHT TO BE REPRESENTED AT
THE MEETING OF NOVEMBER 10, 1975, AND IF SO, WAS SUCH FAILURE A
UNILATERAL CHANGE IN THE NEGOTIATED AGREEMENT.
2. DID THE TEMPORARY ASSIGNMENT OF MR. EATON TO ANOTHER OFFICE WHERE
HE WAS GIVEN CLERICAL DUTIES CONSTITUTE HARASSMENT AND COERCION.
3. DID RESPONDENT FAIL TO SUBSTANTIVELY REPLY TO CLAIMANT'S
INQUIRIES, AND IF SO, CAN SUCH BEHAVIOR BE DEEMED A FAILURE TO ACCORD
LOCAL 477 PROPER RECOGNITION.
FINDINGS OF FACT
MR. RUSSELL EATON WAS THE SUBJECT OF AN OFFICIAL INVESTIGATION OF THE
RESPONDENT'S REGIONAL OFFICE. THE SUBJECT MATTER OF THE INVESTIGATION
CONCERNED SEVERAL COUNTS OF SEVERE MISCONDUCT IN HIS CAPACITY AS AN
APPRAISER. AT THE TIME THE INVESTIGATION WAS BEING CONDUCTED, IT WAS
NORMAL AGENCY PRACTICE TO HAVE PERSONNEL IN THE SAN FRANCISCO REGIONAL
OFFICE ACTUALLY PERFORM THE INVESTIGATION. AFTER COMPLETING THE
INVESTIGATION, THE REGIONAL OFFICE TELEPHONICALLY NOTIFIED THE LOS
ANGELES AREA DIRECTOR THAT THE RESULTS WERE SO INCRIMINATING AS TO
JUSTIFY IMMEDIATE REMOVAL. THE REGIONAL PERSONNEL OFFICE STATED THAT IT
WAS GOING TO PREPARE THE REMOVAL PAPERS FOR THE LOS ANGELES AREA OFFICE.
THE AREA DIRECTOR RETAINED THE OBLIGATION TO EVALUATE THE INVESTIGATIVE
REPORT TO DETERMINE WHETHER THE RESULTS SUPPORT THE PROPOSED ACTION.
PRIOR TO RECEIVING THE ACTUAL INVESTIGATION REPORT, BUT IN RESPONSE
TO THE REPRESENTATION OF REGIONAL COUNSEL THAT REMOVAL WAS WARRANTED,
THE AREA DIRECTOR MET WITH MR. EATON'S SUPERVISORS, MESSRS. PHILLIPS AND
TOUSIGNANT, TO DETERMINE THE BEST COURSE OF ACTION IN DEALING WITH THE
MATTER. BASED ON THE ASSUMPTION THAT CERTAIN REMOVAL WAS FORTHCOMING,
IT WAS DECIDED AT THIS MEETING TO OFFER MR. EATON THE OPPORTUNITY TO
RESIGN, THEREBY AVOIDING BESMIRCHMENT OF HIS PERSONNEL RECORD. THIS
DECISION TO HOLD THE MEETING IS CONSONANT WITH THE PROVISIONS OF THE
FEDERAL PERSONNEL MANUAL SECTION S1-1(B)(3) WHICH STATES:
"IT IS PROPER FOR AN AGENCY TO INITIATE A DISCUSSION WITH AN EMPLOYEE
IN WHICH HE IS GIVEN
AN ELECTION BETWEEN LEAVING HIS POSITION VOLUNTARILY (BY RESIGNATION,
OPTIONAL RETIREMENT, OR
REQUESTING A REDUCTION IN RANK OR PAY) OR HAVING THE AGENCY INITIATE
FORMAL ACTION AGAINST
HIM. IT IS ALSO PROPER FOR THE AGENCY, IN THE COURSE OF THE
DISCUSSION, TO ADVISE THE
EMPLOYEE WHICH OF THE POSSIBLE ALTERNATIVES WILL BE IN HIS BEST
INTEREST. THE FACT THAT THE
EMPLOYEE MAY BE FACED WITH AN INHERENTLY UNPLEASANT SITUATION, OR
THAT HIS CHOICE MAY BE
LIMITED TO TWO UNPLEASANT ALTERNATIVES, DOES NOT MAKE THE RESULTING
ACTION AN INVOLUNTARY
ACTION. HOWEVER, IF THE AGENCY USES DECEPTION, DURESS, TIME
PRESSURE, OR INTIMIDATION TO
FORCE HIM TO CHOOSE A PARTICULAR COURSE OF ACTION, THE ACTION IS
INVOLUNTARY."
PURSUANT TO THE DECISION TO OFFER MR. EATON AN OPPORTUNITY TO RESIGN,
HE WAS CALLED TO A MEETING WITH HIS IMMEDIATE SUPERVISORS ON NOVEMBER
10, 1975, INFORMED OF THE CHARGES AGAINST HIM AND OFFERED THE
OPPORTUNITY TO RESIGN PRIOR TO THE ARRIVAL OF THE OFFICIAL REMOVAL
PAPERS. MR. EATON WAS NOT ADVISED THAT HE HAD A RIGHT TO REPRESENTATION
AT THE MEETING NOR DID HE REQUEST REPRESENTATION. MR. EATON CHOSE NOT
TO RESIGN. HOWEVER, DURING THE COURSE OF THE INVESTIGATION HE WAS
INFORMED THAT HE HAD THE RIGHT TO COUNSEL BUT KNOWLEDGEABLY REFUSED
REPRESENTATION AS DEMONSTRATED IN HIS STATEMENT DATED JULY 15, 1975.
THE JULY 15, 1975, STATEMENT CLEARLY STATES THAT MR. EATON HAD BEEN
ADVISED THAT THE PURPOSE OF HIS INTERVIEW WAS TO OBTAIN HIS RESPONSES TO
QUESTIONS CONCERNING HIS ALLEGED VIOLATION OF THE RESPONDENT ACTIVITY'S
STANDARDS OF CONDUCT BY ENGAGING IN OUTSIDE EMPLOYMENT AS A FEE
APPRAISER, THE USE OF DEPARTMENT MAIL FRANKING PREVILEGES FOR PERSONAL
BUSINESS, THE USE OF GOVERNMENT TIME AND PHOTOGRAPH EQUIPMENT IN
CONNECTION WITH HIS PERSONAL BUSINESS, AND THE FALSIFICATION OF MONTHLY
TRAVEL VOUCHERS SUBMITTED TO HUD. HE ALSO INITIALED THAT SECTION WHICH
INDICATED THAT HE HAD BEEN ADVISED OF HIS RIGHT TO LEGAL COUNSEL AND HIS
FURTHER RIGHT TO TERMINATE ANY INTERVIEW REGARDING THE MATTER AT ANY
TIME HE SO DESIRED.
UPON THE TERMINATION OF THE NOVEMBER 10, 1975, MEETING, HIS
SUPERVISORS TEMPORARILY ASSIGNED HIM TO THE OFFICE OF MR. LEE THOMPSON.
MR. THOMPSON WAS NOT INSTRUCTED AS TO WHAT DUTIES MR. EATON WAS TO BE
ASSIGNED, AND MR. THOMPSON TOOK IT UPON HIMSELF TO HAVE MR. EATON
ENGAGE IN WHAT IS CHARACTERIZED AS CLERICAL DUTIES. THE DECISION TO
REMOVE MR. EATON FROM HIS DUTIES AS A FIELD APPRAISER WAS BASED UPON THE
BELIEF THAT HIS CONTINUED ACTIVITIES IN THE FIELD WOULD CONSTITUTE A
SERIOUS SECURITY PROBLEM. THE RECORD CLEARLY SHOWS THAT THE ASSIGNMENT
WAS NOT INTENDED AS PUNISHMENT BUT, RATHER, WAS MADE UPON THE BELIEF
THAT REMOVAL WAS IMMINENT AND THAT THERE WAS A NEED FOR PROTECTING THE
REPUTATION OF HUD BY KEEPING HIM OUT OF THE FIELD. THE OFFICE HEADED BY
MR. THOMPSON WAS THE LOW RENT SECTION, WHICH IS COMPRISED PRIMARILY OF
NON-CLERICAL STAFF. SECURITY PROBLEMS WERE CONSIDERED TO EXIST BECAUSE
OF THE ALLEGATION THAT HIS OUTSIDE APPRAISALS CONFLICTED WITH HUD
APPRAISALS. AT THE TIME ALL DECISIONS WERE MADE REGARDING MR. EATON,
NEITHER THE AREA DIRECTOR NOR MESSRS. PHILLIPS OR TOUSIGNANT KNEW THAT
MR. EATON WAS A MEMBER OF LOCAL 477 OR HAD ANY UNION AFFILIATION.
ON NOVEMBER 21, 1975, MR. EATON DELIVERED A LETTER TO HIS
SUPERVISORS, WITH A COPY TO LOCAL 477, ASKING QUESTIONS ABOUT THE STATUS
OF HIS REMOVAL PAPERS. NO RESPONSE WAS RECEIVED. ON DECEMBER 4, 1977,
LOCAL 477 SENT A LETTER TO THE AREA DIRECTOR CHARACTERIZING MR. EATON'S
NOVEMBER 21, 1975, LETTER AS A GRIEVANCE AND SEEKING RESPONSES TO
QUESTIONS "FOR INFORMATIONAL PURPOSES ONLY" PURSUANT TO THE PROVISIONS
OF ARTICLES 3, 9 AND 13 OF THE COLLECTIVE BARGAINING AGREEMENT. IT
SHOULD BE NOTED THAT MR. EATON TESTIFIED THAT HE DID NOT CONSIDER HIS
LETTER A GRIEVANCE. THE AREA DIRECTOR RESPONDED TO COMPLAINANT'S LETTER
ON DECEMBER 10, 1975, ADVISING THAT MR. EATON'S CASE WAS STILL UNDER
REVIEW.
IT APPEARS THAT MANAGEMENT WAS RETICENT TO FULLY DISCUSS THE DETAILS
OF THE INVESTIGATION WITH THIRD PARTIES DUE TO THE RECENT ENACTMENT OF
THE PRIVACY ACT OF 1974, WHICH CONTAINS PENALTIES FOR DISCLOSURES OF
CERTAIN INFORMATION. THE RECENT ENACTMENT OF THE PRIVACY ACT RELATIVE
TO THE REQUEST OF LOCAL 477 ENGENDERED DIFFICULTIES IN HUD'S DETERMINING
WHAT SHOULD AND SHOULD NOT BE DISCLOSED. THE EXECUTIVE BOARD OF THE
NFFE MET WITH THE AREA DIRECTOR TWENTY-NINE DAYS LATER TO DISCUSS THE
EATON CASE. FURTHERMORE, ON SEVERAL OCCASIONS AREA COUNSEL DISCUSSED
MR. EATON'S CASE WITH UNION REPRESENTATIVES, INFORMING THEM THAT PENDING
RE-EVALUATION OF THE FACTS, WHICH HE CHARACTERIZED AS UNSATISFACTORY IN
THE INVESTIGATIVE REPORT, COUNSEL WAS HESITANT TO ANSWER THE LETTER OF
NOVEMBER 21, 1975. THE RECORD IS NOT CLEAR AS TO WHETHER THE UNION
AGREED TO THIS COURSE OF ACTION. THE RECORD DOES CLEARLY INDICATE THAT
THE EMPLOYER UNDERSTOOD THAT THE UNION WOULD AWAIT THE RE-EVALUATION.
RESPONDENT DID RE-OPEN THE INVESTIGATION TO RESOLVE WHETHER THE
SUGGESTED REMOVAL ACTION WAS WARRANTED, A FACT COVERED IN THE DECEMBER
10, 1974, LETTER. FURTHERMORE, THE AREA DIRECTOR BELIEVED THAT THE
INVESTIGATIVE FILE WAS THE PROPERTY OF THE INSPECTOR-GENERAL AND THAT HE
LACKED THE AUTHORITY TO RELEASE IT TO COMPLAINANT. IT IS NOTED THAT ON
JANUARY 6, 1976, MR. EATON DID RECEIVE A NOTICE OF PROPOSED REMOVAL
UNDER SECTION 752.2 OF THE HUD HANDBOOK.
DISCUSSION AND CONCLUSIONS
THE INITIAL ISSUE FOR CONSIDERATION IS WHETHER THE ACTIVITY HAD AN
OBLIGATION TO INFORM MR. EATON OF HIS RIGHT TO COUNSEL AT THE NOVEMBER
10, 1975, MEETING. WAS THE MEETING WITHIN THE SCOPE OF SECTION 10(E) OF
EXECUTIVE ORDER 11491, AS AMENDED? SECTION 10(E) PROVIDES:
"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 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."
WAS THE MEETING OF NOVEMBER 10, 1975, A FORMAL DISCUSSION WITHIN THE
MEANING OF THE EXECUTIVE ORDER? THE RECORD DEMONSTRATES MR. EATON DID
NOT REQUEST REPRESENTATION EVEN THOUGH DURING THE INVESTIGATION HE WAS
INFORMED OF HIS RIGHT TO COUNSEL. THEREFORE ANY FINDING OF AN UNFAIR
LABOR PRACTICE OCCURRING AT THE NOVEMBER 10 MEETING MUST BE PREDICATED
ON THE AFFIRMATIVE FINDING THAT MANAGEMENT HAD AN OBLIGATION UNDER
SECTION 10(E) OF THE EXECUTIVE ORDER OR THE NEGOTIATED AGREEMENT TO
INFORM MR. EATON OF HIS RIGHT TO COUNSEL. THE RECORD ALSO CLEARLY
DEMONSTRATES THAT THE PROPOSED ADVERSE ACTION HAD NOT YET BEEN
INSTITUTED AGAINST MR. EATON AT THE TIME OF THE NOVEMBER 10 MEETING
SINCE NO THIRTY-DAY LETTER HAD BEEN ISSUED.
ON NOVEMBER 10, THERE WAS NO GRIEVANCE FILED AND NO GENERAL PERSONNEL
POLICIES AND PRACTICES OR OTHER MATTERS AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES IN THE UNIT DISCUSSED. THERE WAS NO RECORD
FORMALLY MADE OF THE MEETING AND ONLY THE EMPLOYEE AND HIS TWO
SUPERVISORS WERE PRESENT. ALTHOUGH HIS IMMEDIATE SUPERVISOR WAS NOT
PRESENT, MR. EATON'S SECOND TIER AND THIRD TIER SUPERVISORS DID ATTEND
AND CONDUCT THE MEETING. AT THE MOST, THE MEETING WAS A COUNSELING
SESSION. INASMUCH AS THE COUNSELING SESSION PREDATED THE FILING OF ANY
PAPER THAT COULD BE CHARACTERIZED AS A GRIEVANCE, IT CANNOT BE FOUND
THAT THE SESSIONS INVOLVED A GRIEVANCE. MOREOVER, THE MATTERS DISCUSSED
AT THE MEETING DID NOT INVOLVE GENERAL WORKING CONDITIONS AND WORK
PERFORMANCE, RATHER THEY WERE RELATED SOLELY TO AN INDIVIDUAL EMPLOYEE'S
ALLEGED SHORTCOMINGS WITH RESPECT TO SUBSTANTIAL ALLEGATIONS OF WRONG
DOING. ACCORDINGLY, THE MEETING DID NOT CONSTITUTE "FORMAL DISCUSSIONS"
IN WHICH THE EXCLUSIVE REPRESENTATIVE WAS ENTITLED TO COUNSEL THE
EMPLOYEE BY VIRTUE OF THE PROVISIONS OF SECTION 10(E) OF THE ORDER. IT
FOLLOWS THAT THE FAILURE TO AFFIRMATIVELY INFORM MR. EATON OF HIS RIGHT
TO REPRESENTATION AT THE NOVEMBER 10 MEETING DID NOT CONSTITUTE A
VIOLATION OF SECTION 19(A)(6) OF THE ORDER. SEE DEPARTMENT OF DEFENSE,
NATIONAL GUARD BUREAU, TEXAS INTERNATIONAL GUARD, A/SLMR NO. 336.
ADDITIONALLY, THE DISCUSSIONS DID NOT INVOLVE GENERAL WORKING
CONDITIONS BUT AGAIN MERELY INFORMED THE EMPLOYEE OF A PENDING PROPOSED
ADVERSE ACTION AND OFFERED THAT EMPLOYEE THE OPPORTUNITY TO RESIGN PRIOR
TO THE INSTITUTION OF A PROPOSED ADVERSE ACTION. THESE DISCUSSIONS
WOULD HAVE NO WIDER RAMIFICATIONS THAN UPON ANY INDIVIDUAL EMPLOYEE AT
ANY PARTICULAR TIME WITH RESPECT TO INCIDENTS RELATED TO THAT INDIVIDUAL
EMPLOYEE'S WORK. ALTHOUGH IT IS RECOGNIZED THAT THE COUNSELING SESSION
OR ANY OTHER LABEL FOR PRE-MEETING IS NOT DISPOSITIVE OF ITS INCLUSION
OR EXCLUSION FROM THE REQUIREMENTS OF SECTION 10(E). THE NATURE AND
SIGNIFICANCE OF THE DISCUSSIONS ARE DETERMINATIVE. EVEN THOUGH TWO
MANAGEMENT REPRESENTATIVES WERE PRESENT, ONLY THE INDIVIDUAL EMPLOYEE
WAS OR COULD BE & AFFECTED, NOT THE MEMBERS OF THE UNIT.
THIS CONCLUSION IS SUPPORTED BY THE STATEMENT ON MAJOR POLICY ISSUE,
FLRC NO. 75 P-2, WHICH STATES:
"1. AN EMPLOYEE IN A UNIT OF EXCLUSIVE RECOGNITION HAS A PROTECTED
RIGHT UNDER THE LAST
SENTENCE OF SECTION 10(E) OF THE ORDER TO THE ASSISTANCE OR
REPRESENTATION BY THE EXCLUSIVE
REPRESENTATIVE, UPON THE REQUEST OF THE EMPLOYEE, WHEN HE IS SUMMONED
TO A FORMAL DISCUSSION
WITH MANAGEMENT CONCERNING GRIEVANCES, PERSONNEL POLICIES AND
PRACTICES, OR OTHER MATTERS
AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT; AND
"2. AN EMPLOYEE IN A UNIT OF EXCLUSIVE RECOGNITION DOES NOT HAVE A
PROTECTED RIGHT UNDER
THE ORDER TO ASSISTANCE OR REPRESENTATION AT A NONFORMAL
INVESTIGATIVE MEETING OR INTERVIEW TO
WHICH HE IS SUMMONED BY MANAGEMENT; BUT SUCH RIGHT MAY BE
ESTABLISHED THROUGH NEGOTIATIONS
CONDUCTED BY THE EXCLUSIVE REPRESENTATIVE AND THE AGENCY IN
ACCORDANCE WITH SECTION 11(A) OF
THE ORDER."
CONSEQUENTLY, ASSUMING ARGUENDO THAT THE MEETING WAS FORMAL, UNDER
THE FEDERAL LABOR RELATION COUNCIL'S POLICY STATEMENT THE EMPLOYEE MUST
REQUEST REPRESENTATION, WHICH MR. EATON DID NOT DO IN THIS CASE.
INASMUCH AS THE ORDER DOES NOT REQUIRE THAT PRIOR TO THE OPENING OF A
DIALOGUE WITH MR. EATON, MANAGEMENT INFORM HIM OF HIS RIGHT TO COUNSEL,
THE QUESTION DOES REMAIN WHETHER THE AGREEMENT BETWEEN THE ACTIVITY AND
LOCAL 477 INCLUDES A NEGOTIATED RIGHT TO BE ADVISED OF THE RIGHT TO
REPRESENTATION. SECTION 12, TITLED DISCIPLINARY ACTIONS, OF THE
NEGOTIATED AGREEMENT PROVIDES:
"12.1 DEFINITION: FOR PURPOSES OF THIS ARTICLE, A DISCIPLINARY
ACTION IS A WRITTEN
REPRIMAND OR A SUSPENSION OF THIRTY-DAYS OR LESS.
"12.2 RIGHT TO REPRESENTATION: DURING THE CONDUCT OF AN
INVESTIGATION RELATIVE TO
DISCIPLINARY PROCEEDINGS, NO EMPLOYEE SHALL BE SUBJECTED TO
QUESTIONING OR INQUIRY WITHOUT
FIRST BEING ADVISED OF HIS RIGHTS TO REPRESENTATION.
"PRIOR TO INITIATING DISCIPLINARY ACTIONS AGAINST AN EMPLOYEE, A
PRELIMINARY INVESTIGATION
WILL BE MADE TO DETERMINE THE FACTS IN THE CASE.
"12.3 RIGHT OF APPEAL: EACH EMPLOYEE SHALL HAVE THE RIGHT OF APPEAL
AS CONTAINED IN FMP
SUPP. 752-1 AND HUD HANDBOOK 771.2.
ARTICLE 13-- ADVERSE ACTION
"13.1 REPRESENTATION: EMPLOYEES OF THE UNIT ARE ENTITLED TO
REPRESENTATION OF THEIR CHOICE
AT ALL DISCUSSIONS BETWEEN EMPLOYEES AND THE EMPLOYER CONCERNING
PROPOSED ADVERSE ACTIONS OR
AT ANY HEARING WITH THE EMPLOYER FOLLOWING A LETTER OF PROPOSAL
AND/OR A LETTER OF FINAL
DECISION ON SUCH ADVERSE ACTIONS. THIS REPRESENTATION INCLUDES
ASSISTANCE AND PREPARATION OF
REPLIES TO PROPOSED ADVERSE ACTIONS. FOR THE PURPOSE OF THIS
ARTICLE, ADVERSE ACTIONS ARE
DEFINED AS THOSE COVERED BY SUB-PART B IN FPM SUPP. 752.1."
UNDER THE INVESTIGATION THE EMPLOYEE WAS CLEARLY INFORMED OF HIS
RIGHT TO COUNSEL AND ACKNOWLEDGED THAT FACT. THEREFORE, EVEN IF THE
ACTION WERE DEFINED AS A DISCIPLINARY ACTION, THE REQUIREMENTS OF
ARTICLE 12 OF THE NEGOTIATED AGREEMENT HAD BEEN MET BY THE ACTIVITY.
HOWEVER, ARTICLE 12.1 OF THE AGREEMENT DEFINES DISCIPLINARY ACTIONS AS A
WRITTEN REPRIMAND OR SUSPENSION OF 30 DAYS OR LESS, NEITHER OF WHICH
OCCURRED.
ARTICLE 13 OF THE NEGOTIATED AGREEMENT ENTITLES THE EMPLOYEE TO
REPRESENTATION WHEN THERE IS A PROPOSED ADVERSE ACTION. ASSUMING THAT
THE MEETING CONCERNED A PROPOSED ADVERSE ACTION, NO BEHAVIOR ON THE PART
OF MANAGEMENT DENIED THE EMPLOYEE HIS RIGHT TO REPRESENTATION. THE
FAILURE TO INFORM THE EMPLOYEE OF HIS RIGHT TO REPRESENTATION IS NOT A
DENIAL OF REPRESENTATION. THE LANGUAGE OF SECTION 13.1 OF THE
NEGOTIATED AGREEMENT DOES NOT MAKE IT A MANDATORY OBLIGATION OF
MANAGEMENT TO NOTIFY AN EMPLOYEE OF HIS RIGHT TO REPRESENTATION. EACH
EMPLOYEE HAD A COPY OF THE NEGOTIATED AGREEMENT, WHICH COULD BE
CONSTRUED AS INFORMING SUCH EMPLOYEE OF THEIR RIGHTS. HOWEVER, THE
VESTING OF A RIGHT IN ONE PARTY DOES NOT AUTOMATICALLY, IN THE ABSENCE
OF SPECIFIC LANGUAGE IN THE NEGOTIATED AGREEMENT, IMPOSE AN AFFIRMATIVE
DUTY ON THE OTHER PARTIES TO THE SAID AGREEMENT. FURTHERMORE, THE
MEETING COULD NOT BE FOUND TO HAVE CLEARLY CONCERNED A PROPOSED ADVERSE
ACTION, SINCE THE FEDERAL PERSONNEL MANUAL, MADE THE OPERATIVE DOCUMENT
FOR THE PURPOSES OF THE NEGOTIATED AGREEMENT, REQUIRES THAT SUCH
PROPOSED ADVERSE ACTION BE IN WRITING. THERE HAD BEEN NO WRITTEN NOTICE
OF PROPOSED ADVERSE ACTION AS OF NOVEMBER 10, 1975, AND, IN FACT, SUCH
NOTICE WAS NOT ISSUED UNTIL JANUARY OF 1976.
THE FEDERAL LABOR RELATIONS COUNCIL IN FLRC NO. 75 P-2 IN A STATEMENT
ON MAJOR POLICY ISSUES ISSUED PURSUANT TO SECTION 4(B) OF THE ORDER AND
SECTION 2410.3 OF THE COUNCIL'S RULES OF PROCEDURE (5 C.F.R. 2410.3)
CONCLUDED:
"1. AN EMPLOYEE IN A UNIT OF EXCLUSIVE RECOGNITION HAS A PROTECTED
RIGHT UNDER THE LAST
SENTENCE OF SECTION 10(E) OF THE ORDER TO THE ASSISTANCE OR
REPRESENTATION BY THE EXCLUSIVE
REPRESENTATIVE, UPON THE REQUEST OF THE EMPLOYEE, WHEN HE IS SUMMONED
TO A FORMAL DISCUSSION
WITH MANAGEMENT CONCERNING GRIEVANCES, PERSONNEL POLICIES AND
PRACTICES, OR OTHER MATTERS
AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT; AND
"2. AN EMPLOYEE IN A UNIT OF EXCLUSIVE RECOGNITION DOES NOT HAVE A
PROTECTED RIGHT UNDER
THE ORDER TO ASSISTANCE OR REPRESENTATION AT A NON-FORMAL
INVESTIGATIVE MEETING OR INTERVIEW
TO WHICH IS IS SUMMONED BY MANAGEMENT; BUT SUCH RIGHT MAY BE
ESTABLISHED THROUGH NEGOTIATIONS
CONDUCTED BY THE EXCLUSIVE REPRESENTATIVE AND THE AGENCY IN
ACCORDANCE WITH SECTION 11(A) OF
THE ORDER."
AS CAN BE SEEN FROM THE FLRC POLICY STATEMENT, EVEN IF THE MEETING
WAS DESIGNATED AS FORMAL, CONTRARY TO THE FINDINGS HEREIN, THE EMPLOYEE
STILL MUST REQUEST SUCH REPRESENTATION IN ORDER TO INVOKE SECTION 10(E)
OF THE ORDER. IN ORDER FOR A NON-FORMAL INVESTIGATIVE MEETING OR
INTERVIEW TO REQUIRE REPRESENTATION FOR THE EMPLOYEE, THE NEGOTIATED
AGREEMENT BETWEEN THE EXCLUSIVE REPRESENTATIVE AND THE AGENCY MUST SO
PROVIDE, IN ACCORDANCE WITH SECTION 11(A) OF THE ORDER. AS INDICATED
ABOVE, THE NEGOTIATED AGREEMENT DOES NOT PROVIDE FOR REPRESENTATION AT A
NON-FORMAL INTERVIEW WITHOUT A PROPOSED ADVERSE ACTION.
FURTHERMORE, THE RIGHT OF THE REPRESENTATIVE TO ATTENDANCE AT ANY
FORMAL DISCUSSION BETWEEN MANAGEMENT AND AN EMPLOYEE IS PREDICATED ON
THE REQUIREMENT THAT THE DISCUSSION CONCERN GRIEVANCES, PERSONNEL
POLICIES AND PRACTICES OR OTHER MATTERS AFFECTING GENERAL WORKING
CONDITIONS OF THE EMPLOYEES IN THE UNIT. THE MEETING OF NOVEMBER 10
DEALT SOLELY WITH ALLEGED VIOLATIONS OF AN EMPLOYEE WHICH POTENTIALLY
COULD HAVE LED TO A PROPOSED ADVERSE ACTION AND CONSONANT WITH THE
FEDERAL PERSONNEL MANUAL AN OPPORTUNITY WAS BEING AFFORDED THAT EMPLOYEE
TO RESIGN TO AVOID POTENTIAL BESMIRCHMENT OF HIS RECORD.
ACCORDINGLY, I HOLD THAT THE EMPLOYEE DOES NOT HAVE A PROTECTED RIGHT
UNDER THE LAST SENTENCE OF SECTION 10(E) OF THE ORDER TO THE ASSISTANCE
OR REPRESENTATION BY THE EXCLUSIVE REPRESENTATIVE. I FURTHER FIND THAT
IF SUCH RIGHT EXISTED, THE EMPLOYEE WOULD HAVE HAD TO REQUEST IT TO
INVOKE THE PROVISIONS OF THE ORDER. INASMUCH AS THE NEGOTIATED
AGREEMENT DOES NOT PROVIDE FOR REPRESENTATION AT NON-FORMAL MEETINGS
THAT DO NOT INVOLVE PROPOSED ADVERSE ACTIONS, THERE IS NO DERIVATIVE OR
COMPANION RIGHT OF AN EMPLOYEE TO REPRESENTATION UNDER SECTION 10(E) OF
THE ORDER.
HOWEVER, IT COULD BE ARGUED THAT SECTION 1(A) OF THE ORDER GRANTS THE
EMPLOYEE THE RIGHT TO REPRESENTATION AT NON-FORMAL MEETINGS OR
INTERVIEWS HELD BY MANAGEMENT, PARTICULARLY IF THE NON-FORMAL
INVESTIGATIVE INTERVIEW IS CALLED BY MANAGEMENT. SECTION 1(A) OF THE
ORDER PROVIDES:
"A. 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 . . . 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, AND
THAT NO INTERFERENCE,
RESTRAINT, COERCION, OR DISCRIMINATION IS PRACTICED WITHIN HIS AGENCY
TO ENCOURAGE OR
DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION."
THE RECORD CLEARLY DEMONSTRATES THAT AT THE TIME OF THE NOVEMBER 10
MEETING, MANAGEMENT WAS NOT COGNIZANT THAT MR. EATON WAS A MEMBER OF THE
UNION, THEREFORE, ANY ACTIONS TAKEN BY MANAGEMENT ON THAT DATE ARE
COMPLETELY FREE OF ANY UNION ANIMUS AND COULD NOT BE CONSTRUED AS
CONSTITUTING ACTIONS DESIGNED TO INDUCE FEAR OF PENALTY OR REPRISAL IN
THE FORMING, JOINING OR ASSISTING A LABOR ORGANIZATION.
AS THE FEDERAL LABOR RELATIONS COUNCIL FOUND IN FLRC NO. 75 P-2, THE
PROVISIONS OF SECTION 1(A) " . . . ARE EXPRESSLY CONFINED TO THE
EMPLOYEE'S RIGHT TO ORGANIZE, BECOME A MEMBER OF, AND TO SUPPORT, THAT
ORGANIZATION, OR TO REFRAIN FROM ANY SUCH ACTIVITY." THE COUNCIL FURTHER
FINDS, " . . . NO INTENT IS REFLECTED TO AFFORD UNION REPRESENTATION AT
A NON-FORMAL INVESTIGATIVE INTERVIEW OR MEETING WHERE SUCH RIGHT OF THE
EMPLOYEE HAS NOT BEEN ESTABLISHED AS A PERSONNEL POLICY OR PRACTICE OF
THE AGENCY INVOLVED." COMPLAINANT HAS NOT INTRODUCED ANY EVIDENCE OF
RECORD THAT THE AGENCY HAS ESTABLISHED AS A PERSONNEL POLICY OR PRACTICE
THE RIGHT TO REPRESENTATION AT NON-FORMAL INVESTIGATIVE INTERVIEWS.
THE PREDICATE FOR THE FEDERAL LABOR RELATIONS COUNCIL'S POLICY IN
FLRC NO. 75 P-2 IS THAT:
"(A) DETAILED FRAMEWORK OF STATUTES AND REGULATIONS ALREADY PROTECTS
AN EMPLOYEE IN THE
FEDERAL PROGRAM AGAINST ARBITRARY ACTION BY AN AGENCY WHEN SERIOUS
MISCONDUCT IS
ALLEGED. THUS, FOR EXAMPLE, ADVERSE ACTION SOUGHT TO BE TAKEN BY
AGENCIES AGAINST EMPLOYEES
(I.E., REMOVALS, SUSPENSIONS FOR MORE THAN 30 DAYS, FURLOUGHS WITHOUT
PAY, OR REDUCTIONS IN
RANK OR PAY) ARE SUBJECT TO THE RIGID REQUIREMENTS OF 5
U.S.C.CHAPTERS 75 AND 77, AND OF FPM
SUPPLEMENT 990-1, PARTS 752 AND 772, THE LATTER SPECIFICALLY
INCLUDING THE RIGHT OF
REPRESENTATION UPON APPEAL TO THE COMMISSION FROM AGENCY ACTIONS.
AND IN MATTERS NOT COVERED
BY STATUTORY APPEALS PROCEDURES, AND NOT OTHERWISE IN CONFLICT WITH
STATUTES OR THE ORDER,
NEGOTIATED GRIEVANCE PROCEDURES, INCLUDING BINDING ARBITRATION, ARE
SANCTIONED FOR EMPLOYEE
PROTECTION UNDER SECTION 13 OF THE ORDER. CONSEQUENTLY, NO
SUBSTANTIAL PURPOSE OF THE ORDER
WOULD BE SERVED BY AN INTERPRETATION OF SECTION 1(A) TO INCLUDE THE
RIGHT OF AN EMPLOYEE TO
UNION REPRESENTATION OR ASSISTANCE AT A NON-FORMAL INVESTIGATIVE
INTERVIEW OR MEETING TO WHICH
IS CALLED BY MANAGEMENT.
INASMUCH AS THE NOVEMBER 10 DISCUSSION WAS NOT A FORMAL DISCUSSION
WITHIN THE MEANING OF THE LAST SENTENCE OF SECTION 10(E), FAILURE TO
AFFIRMATIVELY INFORM MR. EATON OF HIS RIGHT TO UNION REPRESENTATION AT
THAT MEETING WAS NOT A DENIAL OF A RIGHT CONFERRED BY THAT PROVISION ON
THE UNION NOR A DENIAL OF A CONCOMITANT RIGHT OF THE EMPLOYEES THAT THE
UNION BE GIVEN AN OPPORTUNITY TO BE PRESENT. THEREFORE, THE FAILURE TO
INFORM MR. EATON OF HIS RIGHT TO UNION REPRESENTATION WAS NOT A
VIOLATION OF EITHER SECTION 19(A)(1) OR SECTION 19(A)(6) OF THE
EXECUTIVE ORDER OR THE NEGOTIATED AGREEMENT. THE FINDING THAT THERE WAS
NO DUTY TO INFORM MR. EATON OF A RIGHT TO REPRESENTATION WAS NOT IN
CONTRAVENTION OF THE ORDER OR THE NEGOTIATED AGREEMENT REQUIRES A
FURTHER FINDING THAT THIS FAILURE COULD NOT CONSTITUTE A UNILATERAL
CHANGE IN THE NEGOTIATED AGREEMENT.
UNDER THE EXECUTIVE ORDER, AS DISTINGUISHED FROM THE NATIONAL LABOR
RELATIONS ACT, AN EMPLOYEE DOES NOT HAVE A RIGHT TO BE REPRESENTED AT A
PRE-ACTION INVESTIGATION, NOR DOES THE UNION HAVE A RIGHT TO BE
REPRESENTED AT SUCH A MEETING. SEE DEPARTMENT OF DEFENSE, U.S. NAVY
NORFOLK NAVAL SHIPYARD, CASE NO. 22-5283, MARCH 4, 1975; U.S. AIR
FORCE, HEADQUARTERS AIR FORCE MILITARY TRAINING CENTER (ATC), CASE NO.
63-5430(CA), FEBRUARY 4, 1976.
MR. EATON'S LETTER OF NOVEMBER 10, 1975, WAS NOT CONSIDERED BY MR.
EATON TO BE A COMPLAINT. CONSEQUENTLY, ANY FAILURE TO RESPOND IN A
TIMELY MANNER COULD NOT BE CONSIDERED AN UNFAIR LABOR PRACTICE. THE
RECORD CLEARLY SHOWS THAT THERE WERE COMMUNICATIONS BETWEEN MANAGEMENT
AND THE UNION. HOWEVER, THE UNION CHARACTERIZES THE RESPONSES AS
UNINFORMATIVE AND NOT THE RESPONSES REQUESTED IN THEIR COMMUNICATIONS.
THE UNION'S LETTERS OF NOVEMBER 12 AND DECEMBER 4, 1975, DO NOT INDICATE
THAT THE UNION HAD BEEN DESIGNATED AS MR. EATON'S PERSONAL
REPRESENTATIVE. IT COULD BE ARGUED THAT MR. EATON'S LETTER TO THE UNION
DATED NOVEMBER 10, 1975, REQUESTING ASSISTANCE WAS A DELEGATION OF
REPRESENTATION. HOWEVER, THE ADVERSE ACTION WAS NOT PROPOSED UNTIL
JANUARY 1976 AND THE UNION WAS INFORMED THAT THE MATTER WAS BEING
STUDIED. THERE ARE NO FACTS OF RECORD THAT INDICATE THAT MANAGEMENT'S
RESPONSES TO THE UNION'S INQUIRIES REFLECTED ANIMUS, BUT RATHER
INDICATED AN ABUNDANCE OF CAUTION TO INSURE THAT THE INVESTIGATIVE FILE
CONTAINED SUFFICIENT EVIDENCE TO WARRANT THE INSTITUTION OF A PROPOSED
ADVERSE ACTION. THE RECORD CLEARLY DEMONSTRATES THAT MANAGEMENT'S
ACTIONS WERE DIRECTED SOLELY TO INSURE THAT THE ALLEGED WRONG-DOINGS
WERE CLEARLY SUBSTANTIATED IN THE INVESTIGATIVE REPORT FOR THE
PROTECTION OF MR. EATON.
THE FINAL ISSUE FOR CONSIDERATION IS WHETHER MR. EATON'S REASSIGNMENT
WAS HARASSMENT OR COERCION. THE FACT THAT MR. EATON WAS ASSIGNED TO
DUTIES WHICH HE CONSIDERED CLERICAL IN NATURE DOES NOT, IN ITSELF,
CONSTITUTE AN UNFAIR LABOR PRACTICE OR HARASSMENT. THE REASSIGNMENT WAS
A MANAGEMENT DECISION BASED ON THE FACT THAT THERE WERE VERY SERIOUS
QUESTIONS REGARDING MR. EATON'S CONDUCT IN HIS POSITION AND WITHOUT ANY
KNOWLEDGE THAT HE WAS A MEMBER OF A UNION. THE COMPLETE LACK OF
EVIDENCE PROBATIVE OF UNION ANIMUS PRECLUDES THE FINDING OF AN UNFAIR
LABOR PRACTICE OR VIOLATION OF THE ORDER. THE RECORD IS DEVOID OF ANY
EVIDENCE THAT THE REASSIGNMENT WAS BASED ON THE POTENTIAL OF UNION
ASSISTANCE OR REPRESENTATION IN THE INVESTIGATIVE PROCESS OR IN THE
PROPOSED ADVERSE ACTION WHICH WAS INSTITUTED ON JANUARY 6, 1976, WELL
AFTER ALL THE ACTIVITIES COMPLAINED OF OCCURRED.
THE REASSIGNMENT OF MR. EATON CANNOT BE VIEWED AS COERCIVE OR
INTIMIDATING BY AGENCY MANAGEMENT FOR THE PURPOSE OF DISSUADING THE
EMPLOYEE FROM SEEKING OR ACCEPTING UNION ASSISTANCE AND REPRESENTATION
WITH REGARD TO SUCH MATTERS AS THE PROCESSING OF GRIEVANCES AND,
THEREFORE, THERE HAS BEEN NO VIOLATION OF SECTIONS 19(A)(1) OR 19(A)(6)
OF THE ORDER.
NEITHER THE ORDER NOR THE NEGOTIATED AGREEMENT CIRCUMSCRIBE
MANAGEMENT'S PREROGATIVES IN DETAILING EMPLOYEES TO LOWER GRADED
POSITIONS. THE METHOD OF DETAILING MR. EATON HAD NOT BEEN SHOWN TO BE
IN CONTRAVENTION OF ANY CIVIL SERVICE REGULATIONS, THE ORDER OR THE
NEGOTIATED AGREEMENT. IN FACT, COMPLAINANT NEVER RAISED THE ALLEGATION
THAT THE DETAIL WAS IN VIOLATION OF THE AGREEMENT.
THE RECORD DOES NOT SUPPORT A FINDING THAT THE ACTIVITY IN ANY WAY
TRIED TO UNILATERALLY LIMIT THE SCOPE OF THE AGREEMENT NOR ITS
BARGAINING OBLIGATIONS WITH THE COMPLAINANT. EVEN IF RESPONDENT
ERRONEOUSLY INTERPRETED SECTION 13.1 OF THE NEGOTIATED AGREEMENT, IT
WOULD BE AS A SIMPLE BREACH OF CONTRACT AND NOT A UNILATERAL CHANGE IN
THE AGREEMENT.
THE DISPUTE AS TO THE MEANING OF SECTION 13.1 OF THE NEGOTIATED
AGREEMENT DEALS WITH THE MEANING OF ELASTIC WORDS. IT IS NOT CLEAR ON
THE FACE OF THE AGREEMENT THAT MANAGEMENT'S INTERPRETATION IS CLEARLY
AND OBVIOUSLY A BREACH OF THE CONTRACT AND CONSTITUTES A DELIBERATE
ATTEMPT TO UNILATERALLY CHANGE THAT CONTRACT. SINCE THE MANAGEMENT'S
INTERPRETATION OF SECTION 13.1 HAD NEVER PREVIOUSLY BEEN BROUGHT IN
QUESTION, ACCORDING TO THE RECORD IN THIS CASE, THERE APPEARS TO BE AT
MOST AN OBLIGATION TO BARGAIN REGARDING THE IMPACT AND IMPLEMENTATION OF
THE TERMS OF THAT SECTION IN THE NEGOTIATED AGREEMENT. THE DISPUTE SO
OBVIOUSLY INVOLVES SEMANTICAL INTERPRETATION AS TO REQUIRE RESOLUTION IN
ACCORDANCE WITH ESTABLISHED GRIEVANCE PROCEDURES. THE RECORD DOES
INDICATE THAT ONE OF THE MEMBERS OF THE UNION'S NEGOTIATING TEAM
UNDERSTOOD THE SECTION TO AFFORD AN OPPORTUNITY FOR REPRESENTATION WHEN
REQUESTED BY THE EMPLOYEE, CONSONANT WITH THE CLEAR LANGUAGE OF SECTION
10(E) OF THE ORDER AND FURTHER UNDERSTOOD THAT EACH MEMBER OF THE UNION
WOULD RECEIVE A COPY OF THE NEGOTIATED AGREEMENT AND WOULD BE THEREFORE
FAMILIAR WITH ENTITLEMENT TO REPRESENTATION UPON THEIR OWN REQUEST.
FILING A GRIEVANCE UNDER A NEGOTIATED GRIEVANCE PROCEDURE IS A RIGHT
PROTECTED BY SECTION 19(A)(1) OF THE ORDER. THE DEPARTMENT OF DEFENSE,
ARKANSAS NATIONAL GUARD, A/SLMR NO. 53; NATIONAL RELATIONS LABOR BOARD,
REGION 7, A/SLMR NO. 295; CALIFORNIA NATIONAL GUARD, A/SLMR NO. 348.
SINCE THERE WAS NO GRIEVANCE FILED AT THE TIME OF THE MEETING OR OTHER
ACTIONS TAKEN IN REGARD TO MR. EATON, IT CANNOT BE FOUND THAT RESPONDENT
INTERFERED WITH, RESTRAINED, OR COERCED MR. EATON IN THE INVESTIGATIVE
PROCEEDINGS OR BY DETAILING HIM TO ANOTHER SECTION. THE TIMING OF THE
REASSIGNMENT WAS SUCH THAT IT PRECLUDES ANY SUSPICION THAT THE DETAILING
WAS MOTIVATED BY A GRIEVANCE OR BY MR. EATON'S UNION ACTIVITIES OR
MEMBERSHIP. IF THE DETAILING HAD FOLLOWED THE FILING OF A GRIEVANCE OR
SOME STATEMENT BY MR. EATON RELATIVE TO HIS UNION MEMBERSHIP OR HIS
DESIRE TO HAVE UNION REPRESENTATION, THERE WOULD BECOME CORROBORATIVE
FACT OF UNION ANIMUS OR COERCION.
SINCE COMPLAINANT HAS NOT SUSTAINED ITS BURDEN OF PROOF OF VIOLATION
OF THE ORDER, THE COMPLAINT SHOULD BE DISMISSED.
RECOMMENDATION
THE COMPLAINT SHOULD BE DISMISSED.
JOAN WIEDER
ADMINISTRATIVE LAW JUDGE
7 A/SLMR 890; P. 740; CASE NO. 41-5131(RO); AUGUST 31, 1977.
AUGUST 31, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND DIRECTION OF ELECTION
OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
USDA FOREST SERVICE,
CHEROKEE NATIONAL FOREST,
JACOBS CREEK CIVILIAN CONSERVATION CENTER
A/SLMR NO. 890
THIS CASE AROSE AS A RESULT OF A PETITION FILED BY THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES SEEKING AN ELECTION IN A UNIT OF ALL
PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE JACOBS CREEK CIVILIAN
CONSERVATION CENTER (CENTER) LOCATED ON THE ACTIVITY, THE CHEROKEE
NATIONAL FOREST (FOREST). THE ACTIVITY MAINTAINED THAT ONLY A UNIT
COMPRISED OF ALL FOREST EMPLOYEES IS APPROPRIATE. IT CONTENDED THAT
EMPLOYEES OF THE CENTER SHARE A COMMUNITY OF INTEREST WITH OTHER FOREST
EMPLOYEES AND THAT A SEPARATE UNIT OF EXCLUSIVE RECOGNITION AT THE
CENTER WOULD HAVE AN ADVERSE EFFECT ON THE EFFICIENCY OF THE FOREST'S
OPERATIONS AND ON THE FOREST'S ABILITY TO ENGAGE IN EFFECTIVE
LABOR-MANAGEMENT RELATIONS DEALINGS.
THE ASSISTANT SECRETARY FOUND THAT THE UNIT SOUGHT WAS APPROPRIATE
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. HE FOUND THAT THE CENTER
CONSTITUTED A FUNCTIONALLY DISTINCT GROUP OF EMPLOYEES WHO SHARE A
COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM THE OTHER EMPLOYEES OF
THE FOREST. ADDITIONALLY, HE FOUND THAT THE CLAIMED FUNCTIONAL UNIT
WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
THE ASSISTANT SECRETARY NOTED THAT THE CENTER WAS IN EXISTENCE IN 1973
WHEN THE ACTIVITY CONSENTED TO AN ELECTION IN A FOREST-WIDE UNIT WHICH
SPECIFICALLY EXCLUDED THE CENTER'S EMPLOYEES. HE NOTED FURTHER THAT IN
THE REGION INVOLVED, EMPLOYEES OF FIVE OF THE REMAINING SIX CIVILIAN
CONSERVATION CENTERS ARE IN EXCLUSIVELY RECOGNIZED UNITS SEPARATE FROM
THE NATIONAL FORESTS IN WHICH THEY ARE LOCATED AND ALL OF THESE UNITS
ARE COVERED BY NEGOTIATED AGREEMENTS. IN THESE CIRCUMSTANCES, AND IN
THE ABSENCE OF ANY EVIDENCE THAT THE SCOPE AND CHARACTER OF THE
ACTIVITY'S EXISTING UNIT HAVE CHANGED BY VIRTUE OF EVENTS SUBSEQUENT TO
ITS CERTIFICATION, THE ASSISTANT SECRETARY REJECTED THE ACTIVITY'S
POSITION THAT ONLY A FOREST-WIDE UNIT WHICH INCLUDES THE CENTER'S
EMPLOYEES IS APPROPRIATE. MOREOVER, HE FOUND THAT, UNDER THE PARTICULAR
CIRCUMSTANCES OF THIS CASE, WHERE THE CLAIMED EMPLOYEES CONSTITUTED A
FUNCTIONAL UNIT OF ALL UNREPRESENTED EMPLOYEES IN THE FOREST WHO HAVE
NOT HAD AN OPPORTUNITY TO VOTE ON THE QUESTION OF EXCLUSIVE RECOGNITION,
THE ESTABLISHMENT OF THE PETITIONED FOR UNIT WILL MINIMIZE FRAGMENTATION
OF THE REMAINING UNREPRESENTED EMPLOYEES OF THE ACTIVITY. ALSO, THE
ASSISTANT SECRETARY FOUND, CONTRARY TO THE POSITION TAKEN BY THE
ACTIVITY, THAT FOUR GS-186-7 GROUP LEADERS ARE NOT SUPERVISORS AND ARE
ELIGIBLE TO BE INCLUDED IN THE UNIT FOUND APPROPRIATE.
THUS, IN ACCORDANCE WITH SECTION 10(B)(4) OF THE ORDER, THE ASSISTANT
SECRETARY ORDERED AN ELECTION AMONG THE PROFESSIONAL AND NONPROFESSIONAL
EMPLOYEES IN THE UNIT FOUND APPROPRIATE.
USDA FOREST SERVICE, CHEROKEE
NATIONAL FOREST, JACOBS CREEK
CIVILIAN CONSERVATION CENTER /1/
ACTIVITY
CASE NO. 41-5131(RO)
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES
PETITIONER
DECISION AND DIRECTION OF ELECTION
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER ANN H. WOODWARD.
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, NATIONAL FEDERATION OF FEDERAL EMPLOYEES SEEKS AN
ELECTION IN A UNIT OF ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF
THE JACOBS CREEK CIVILIAN CONSERVATION CENTER (CENTER) LOCATED IN THE
CHEROKEE NATIONAL FOREST (FOREST), EXCLUDING ALL MANAGEMENT OFFICIALS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, SUPERVISORS AS DEFINED BY EXECUTIVE ORDER 11491, AS
AMENDED, AND ALL OTHER EMPLOYEES OF THE FOREST. /2/ AT THE HEARING, THE
PETITIONER STATED THAT IT WAS NOT WILLING TO PROCEED TO AN ELECTION IN
ANY ALTERNATIVE UNIT.
THE ACTIVITY TAKES THE POSITION THAT THE PETITIONED FOR UNIT IS NOT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER.
/3/ THE ACTIVITY MAINTAINS THAT ONLY A UNIT COMPRISED OF ALL FOREST
EMPLOYEES IS APPROPRIATE. IT CONTENDS THAT EMPLOYEES OF THE CENTER
SHARE A COMMUNITY OF INTEREST WITH OTHER FOREST EMPLOYEES AND THAT A
SEPARATE UNIT AT THE CENTER WOULD HAVE AN ADVERSE EFFECT ON THE
EFFICIENCY OF THE FOREST'S OPERATIONS AND ON THE FOREST'S ABILITY TO
ENGAGE IN EFFECTIVE LABOR-MANAGEMENT RELATIONS DEALINGS. THE ACTIVITY
ALSO ASSERTS THAT THE SUBSTANTIAL AMOUNT OF EFFORT THAT HAS GONE INTO
CREATION OF A "NATIONAL FOREST CONCEPT" WOULD BE DISRUPTED BY THE
PSYCHOLOGICAL BARRIERS IMPOSED BY HAVING TWO SEPARATE UNITS IN ONE
NATIONAL FOREST SYSTEM.
IN SUPPORT OF THE CLAIMED UNIT, THE PETITIONER CONTENDS THAT NOT OVER
TEN PERCENT OF THE JOB CLASSIFICATIONS WITHIN THE CENTER ARE COMPATIBLE
WITH THOSE IN THE FOREST. ALSO, IT ASSERTS THAT OTHER SEPARATE FOREST
AND CENTER UNITS WITHIN THE REGION INVOLVED HAVE WORKED EFFICIENTLY.
ACCORDINGLY, THE PETITIONER TAKES THE POSITION THAT THE PETITIONED FOR
UNIT IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE
ORDER.
THE MISSION OF THE FOREST SERVICE, AN AGENCY OF THE U.S. DEPARTMENT
OF AGRICULTURE, IS ACCOMPLISHED THROUGH FOUR MAIN ACTIVITIES: (1)
PROTECTION AND MANAGEMENT OF NATURAL RESOURCES ON NATIONAL FOREST LANDS;
(2) COOPERATION WITH STATE AND LOCAL GOVERNMENTS, FOREST INDUSTRIES AND
PRIVATE LANDOWNERS TO HELP PROTECT AND MANAGE NON-FEDERAL FOREST AND
ASSOCIATED RANGE AND WATERSHED LAND; (3) RESEARCH IN VARIOUS ASPECTS OF
FORESTRY; AND (4) PARTICIPATION WITH OTHER AGENCIES IN HUMAN RESOURCE
AND COMMUNITY ASSISTANCE PROGRAMS. THE MISSION OF THE CHEROKEE NATIONAL
FOREST INVOLVES PRIMARILY THE FIRST AND FOURTH OF THESE FOREST SERVICE
ACTIVITIES. WITH RESPECT TO THE LATTER ACTIVITY, THE FOREST SERVICE
COOPERATES WITH THE DEPARTMENTS OF LABOR, COMMERCE, AND HEALTH,
EDUCATION AND WELFARE IN A NUMBER OF HUMAN RESOURCE PROGRAMS WHICH
PROVIDE EMPLOYMENT, JOB TRAINING AND EDUCATION FOR OLDER AMERICANS,
YOUTH AND OTHER INDIVIDUALS. IN THIS CONNECTION, ONE COOPERATIVE
PROGRAM WITH THE DEPARTMENT OF LABOR, THE JOB CORPS, IS UNIQUE IN THAT
IT UTILIZES 17 SEPARATE ADMINISTRATIVE ENTITIES-- CIVILIAN CONSERVATION
CENTERS (JOB CORPS CENTERS)-- LOCATED IN VARIOUS NATIONAL FORESTS
NATIONWIDE TO ACCOMPLISH THE JOB CORPS' MISSION.
THE MISSION OF THE JACOBS CREEK CENTER LOCATED IN THE CHEROKEE
NATIONAL FOREST IS TO PROVIDE YOUTHS WITH ROOM AND BOARD, BASIC
EDUCATION AND THE OPPORTUNITY TO OBTAIN TRAINING IN SUCH VOCATIONS AS
CARPENTRY, PAINTING, BRICKLAYING, COOKING, AND THE OPERATION OF
EARTHMOVING EQUIPMENT IN ORDER THAT THEY CAN BECOME EMPLOYABLE IN THE
JOB MARKET. TOGETHER, THE CENTER AND THE FOREST PROVIDE THE ENVIRONMENT
FOR TRAINING OF JOB CORPS ENROLLEES. AS PART OF THEIR TRAINING, THE JOB
CORPS ENROLLEES FROM THE CENTER CONSTRUCT ROADS, TRAILS, RECREATION
AREAS, AND BUILDINGS AND DO OTHER NEEDED CONSTRUCTION AND ENVIRONMENTAL
WORK ON FOREST ACREAGE.
THE FOREST IS ONE OF 15 NATIONAL FORESTS WITHIN REGION NO. 8 OF THE
FOREST SERVICE. IT IS ADMINISTRATIVELY DIVIDED INTO A FOREST
SUPERVISOR'S OFFICE, THE JACOBS CREEK CENTER, AND SIX RANGER DISTRICTS.
THE ADMINISTRATIVE HEAD OF THE FOREST IS THE FOREST SUPERVISOR.
REPORTING DIRECTLY TO THE FOREST SUPERVISOR ARE SEVEN LINE OFFICIALS:
THE CENTER DIRECTOR AND THE SIX DISTRICT RANGERS.
THE FOREST IS AUTHORIZED 232 PERMANENT EMPLOYEES: 50 IN THE CENTER,
55 IN THE FOREST SUPERVISOR'S OFFICE, AND THE REMAINING 127 DIVIDED
AMONG THE RANGER DISTRICTS. THE ELIGIBLE NONPROFESSIONAL EMPLOYEES OF
THE FOREST SUPERVISOR'S OFFICE AND THE RANGER DISTRICTS ARE INCLUDED
CURRENTLY IN AN EXCLUSIVELY RECOGNIZED UNIT REPRESENTED BY THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 913. /4/ THERE HAS NEVER BEEN AN
ELECTION OR OTHER EVIDENCE OF BARGAINING HISTORY AT THE CENTER. THE
RECORD REVEALS THAT THE CENTER WAS IN EXISTENCE IN 1973 WHEN THE
ACTIVITY CONSENTED TO AN ELECTION IN THE FOREST-WIDE UNIT WHICH
SPECIFICALLY EXCLUDED THE CENTER'S EMPLOYEES.
IN MY VIEW, THE CENTER CONSTITUTES A FUNCTIONALLY DISTINCT GROUP OF
EMPLOYEES WHO SHARE A COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM
THE OTHER EMPLOYEES OF THE FOREST. THE EVIDENCE SHOWS IN THIS REGARD
THAT OF THE APPROXIMATELY 29 EMPLOYEES IN THE PETITIONED FOR UNIT ONLY
THREE EMPLOYEES HAVE ESSENTIALLY THE SAME DUTIES, SKILLS, EDUCATION,
EXPERIENCE, AND JOB CLASSIFICATIONS AS CERTAIN OTHER EMPLOYEES IN THE
EXISTING FOREST-WIDE UNIT. /5/ THE CENTER'S EMPLOYEES HAVE LITTLE
CONTACT, AND EXCEPT FOR THE THREE EMPLOYEES MENTIONED ABOVE, DO NOT
INTERCHANGE OR TRANSFER WITH EMPLOYEES OF THE EXISTING FOREST-WIDE UNIT.
/6/
FURTHER, I FIND THAT THE CLAIMED FUNCTIONAL UNIT WILL PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. THE RECORD
REVEALS THAT THE CENTER WAS IN EXISTENCE IN 1973 WHEN THE ACTIVITY
CONSENTED TO AN ELECTION IN THE FOREST-WIDE UNIT WHICH SPECIFICALLY
EXCLUDED THE CENTER'S EMPLOYEES. ALSO, IT APPEARS THAT IN THE REGION
INVOLVED HEREIN-- REGION NO. 8 OF THE FOREST SERVICE-- EMPLOYEES OF FIVE
OF THE REMAINING SIX CIVILIAN CONSERVATIONS CENTERS ARE IN EXCLUSIVELY
RECOGNIZED UNITS SEPARATE FROM THE NATIONAL FORESTS IN WHICH THEY ARE
LOCATED AND ALL OF THESE UNITS ARE COVERED BY NEGOTIATED AGREEMENTS.
/7/ IN THESE CIRCUMSTANCES, AND IN THE ABSENCE OF ANY EVIDENCE THAT THE
SCOPE AND CHARACTER OF THE ACTIVITY'S EXISTING UNIT HAVE CHANGED BY
VIRTUE OF EVENTS SUBSEQUENT TO ITS CERTIFICATION, I REJECT THE
ACTIVITY'S POSITION THAT ONLY A FOREST-WIDE UNIT WHICH INCLUDES THE
CENTER'S EMPLOYEES IS APPROPRIATE. /8/ MOREOVER, UNDER THE PARTICULAR
CIRCUMSTANCES OF THIS CASE, WHERE THE CLAIMED EMPLOYEES CONSTITUTE A
FUNCTIONAL UNIT OF ALL UNREPRESENTED EMPLOYEES IN THE FOREST WHO HAVE
NOT HAD THE OPPORTUNITY TO VOTE ON THE QUESTION OF EXCLUSIVE
RECOGNITION, I FIND THAT THE ESTABLISHMENT OF THE PETITIONED FOR UNIT
WILL MINIMIZE FRAGMENTATION OF THE REMAINING UNREPRESENTED EMPLOYEES OF
THE ACTIVITY. /9/
AS NOTED ABOVE, THE ACTIVITY TAKES THE POSITION THAT THE FOUR
GS-186-7 GROUP LEADERS WHO WORK AT THE CENTER ARE NOT ELIGIBLE TO BE
INCLUDED IN ANY UNIT FOUND APPROPRIATE BECAUSE THEY ARE SUPERVISORS
WITHIN THE MEANING OF THE ORDER. ON THE OTHER HAND, THE PETITIONER
CONTENDS THAT THESE EMPLOYEES ARE NOT SUPERVISORS AND SHOULD BE INCLUDED
IN THE CLAIMED UNIT.
THE RECORD REVEALS THAT THREE OF THE FOUR GS-7 GROUP LEADERS ARE DORM
MANAGERS WHO ARE RESPONSIBLE FOR THE JOB CORPS ENROLLEES DURING THEIR
DORMITORY HOURS. EACH DORM MANAGER HAS AN ASSISTANT DORM MANAGER-- GS-5
GROUP LEADER-- WORKING UNDER HIM. THE REMAINING GS-7 GROUP LEADER IS
RESPONSIBLE FOR THE ENROLLEES' LEISURE TIME ACTIVITIES AT THE CENTER.
HE HAS TWO GS-5 GROUP LEADERS WORKING UNDER HIM. ALL FOUR GS-7 GROUP
LEADERS REPORT TO A GS-9 GROUP LEADER WHO, IN TURN, REPORTS TO A GS-11
SUPERVISORY GROUP LEADER WHO, IN TURN, REPORTS TO THE CENTER DIRECTOR, A
GS-13.
AS A RESULT OF AN EXPANSION OF THE CENTER, A REORGANIZATION OF THE
CENTER BEGAN APPROXIMATELY THREE MONTHS PRIOR TO THE HEARING IN THIS
MATTER AND HAD NOT YET BEEN COMPLETED. /10/ THE EVIDENCE ESTABLISHES,
HOWEVER, THAT AT THE TIME OF THE HEARING THE FOUR GS-7 GROUP LEADERS
INVOLVED COULD NOT HIRE, TRANSFER, SUSPEND, LAY OFF, RECALL OR DISCHARGE
THE GS-5 GROUP LEADERS WORKING UNDER THEM OR EFFECTIVELY RECOMMEND SUCH
ACTION. WHILE A RECOMMENDATION REGARDING DISCIPLINE HAD BEEN MADE BY AN
EMPLOYEE IN QUESTION, THERE WAS NO EVIDENCE THAT SUCH RECOMMENDATION WAS
EFFECTIVE. FURTHER, ALTHOUGH THESE EMPLOYEES CAN ASSIGN WORK AND DIRECT
THE WORK OF THEIR SUBORDINATES, IT APPEARS FROM THE RECORD THAT THEIR
AUTHORITY IS NO MORE THAN ROUTINE IN NATURE. /11/ ACCORDINGLY, I FIND
THAT, UNDER THE CIRCUMSTANCES, THE FOUR GS-7 GROUP LEADERS INVOLVED
HEREIN DO NOT POSSESS THE SUPERVISORY INDICIA SET FORTH IN SECTION 2(C)
OF THE ORDER AND, THEREFORE, I SHALL INCLUDE THEM IN THE UNIT FOUND
APPROPRIATE.
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 OF THE JACOBS CREEK
CIVILIAN CONSERVATION
CENTER LOCATED ON THE CHEROKEE NATIONAL FOREST, EXCLUDING ALL
MANAGEMENT OFFICIALS, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, SUPERVISORS AS
DEFINED BY THE ORDER, AND ALL OTHER EMPLOYEES OF THE CHEROKEE
NATIONAL FOREST.
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 /12/ 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 JACOBS CREEK
CIVILIAN CONSERVATION
CENTER LOCATED ON THE CHEROKEE NATIONAL FOREST EXCLUDING ALL
NONPROFESSIONAL EMPLOYEES,
MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY
CLERICAL CAPACITY, SUPERVISORS AS DEFINED BY THE ORDER, AND ALL OTHER
EMPLOYEES OF THE
CHEROKEE NATIONAL FOREST.
VOTING GROUP (B): ALL NONPROFESSIONAL EMPLOYEES OF THE JACOBS CREEK
CIVILIAN CONSERVATION
CENTER LOCATED ON THE CHEROKEE NATIONAL FOREST EXCLUDING ALL
PROFESSIONAL EMPLOYEES,
MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY
CLERICAL CAPACITY, SUPERVISORS AS DEFINED BY THE ORDER, AND ALL OTHER
EMPLOYEES OF THE
CHEROKEE NATIONAL FOREST.
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.
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. 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 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 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 JACOBS CREEK
CIVILIAN CONSERVATION
CENTER LOCATED ON THE CHEROKEE NATIONAL FOREST, EXCLUDING ALL
MANAGEMENT OFFICIALS, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, SUPERVISORS AS
DEFINED BY THE ORDER, AND ALL OTHER EMPLOYEES OF THE CHEROKEE
NATIONAL FOREST.
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 OF THE JACOBS CREEK CIVILIAN
CONSERVATION CENTER LOCATED ON
THE CHEROKEE NATIONAL FOREST, EXCLUDING ALL NONPROFESSIONAL
EMPLOYEES, MANAGEMENT OFFICIALS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY,
SUPERVISORS AS DEFINED BY THE ORDER, AND ALL OTHER EMPLOYEES OF THE
CHEROKEE NATIONAL FOREST.
(B) ALL NONPROFESSIONAL EMPLOYEES OF THE JACOBS CREEK CIVILIAN
CONSERVATION CENTER LOCATED
ON THE CHEROKEE NATIONAL FOREST, EXCLUDING ALL PROFESSIONAL
EMPLOYEES, MANAGEMENT OFFICIALS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY,
SUPERVISORS AS DEFINED BY THE ORDER, AND ALL OTHER EMPLOYEES OF THE
CHEROKEE NATIONAL FOREST.
DIRECTION OF ELECTION
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 ADMINISTRATOR 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 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.
DATED, WASHINGTON, D.C.
AUGUST 31, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE CLAIMED UNIT APPEARS ESSENTIALLY AS AMENDED AT THE HEARING.
/3/ THE ACTIVITY ALSO CONTENDS THAT FOUR GS-7 GROUP LEADERS ARE NOT
ELIGIBLE TO BE INCLUDED IN THE CLAIMED UNIT BECAUSE THEY ARE SUPERVISORS
AS DEFINED BY THE ORDER. THE PETITIONER DISPUTES THIS CONTENTION.
/4/ THE UNIT OF EXCLUSIVE RECOGNITION WAS CERTIFIED ON AUGUST 9,
1973. THE PROFESSIONAL EMPLOYEES VOTED TO REMAIN UNREPRESENTED. THE
CURRENT NEGOTIATED AGREEMENT BETWEEN THE PARTIES WAS EXECUTED APRIL 26,
1976, AND BECAME EFFECTIVE MAY 14, 1976, FOR A THREE YEAR DURATION WITH
AUTOMATIC ANNUAL RENEWAL THEREAFTER NOT TO EXCEED THREE ADDITIONAL
YEARS.
/5/ THE THREE EMPLOYEES ARE: ONE GS-322-2 CLERK-TYPIST, ONE GS-322-4
CLERK-TYPIST, AND ONE GS-1105-4 PURCHASING AGENT. THE RECORD
ESTABLISHES THAT THE FOLLOWING EMPLOYEES IN THE PETITIONED FOR UNIT HAVE
DUTIES, SKILLS, EDUCATION, EXPERIENCE, AND JOB CLASSIFICATIONS WHICH ARE
ESSENTIALLY UNIQUE TO THE JOB CORPS CENTER RELATIVE TO THE EMPLOYEES IN
THE EXISTING FOREST-WIDE UNIT: TWO GS-1710-5 TEACHERS (PROFESSIONAL
EMPLOYEES), THREE GS-1710-9 TEACHERS (PROFESSIONAL EMPLOYEES), ONE
GS-1712-5 TRAINING INSTRUCTOR, FOUR GS-1712-7 TRAINING INSTRUCTORS, FOUR
GS-186-4 GROUP AIDES, THREE GS-186-5 GROUP LEADERS, FOUR GS-186-7 GROUP
LEADERS, AND TWO GS-7404-8 COOKS. NO EVIDENCE WAS PRESENTED AT THE
HEARING REGARDING THE REMAINING EMPLOYEES INCLUDED IN THE UNIT: ONE
GS-699-5 HEALTH TECHNICIAN, ONE WG-7305-3 LAUNDRY MACHINE OPERATOR, AND
ONE WG-6907-4 WAREHOUSEMAN.
/6/ SEE UNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE,
SCHENCK CIVILIAN CONSERVATION CENTER, NORTH CAROLINA AND FOREST SERVICE,
NATIONAL FORESTS OF NORTH CAROLINA, A/SLMR NO. 116, AND UNITED STATES
DEPARTMENT OF AGRICULTURE, BLACK HILLS NATIONAL FOREST, A/SLMR NO. 58.
COMPARE UNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE, WOLFE
CREEK JOB CORPS CIVILIAN CONSERVATION CENTER AND UNITED STATES
DEPARTMENT OF AGRICULTURE FOREST SERVICE, UMPQUA NATIONAL FOREST,
ROSEBURG, OREGON, A/SLMR NO. 567.
/7/ SEE, IN THIS REGARD, THE U.S. CIVIL SERVICE COMMISSION'S
PUBLICATION, UNION RECOGNITION IN THE FEDERAL GOVERNMENT (NOVEMBER
1976).
/8/ IT WAS NOTED FURTHER THAT THE FUNDING AND POLICY FORMULATION FOR
ALL 17 JOB CORPS CENTERS WITHIN THE FOREST SERVICE ORIGINATES WITH THE
DEPARTMENT OF LABOR AND IS CHANNELED THROUGH THE FOREST SERVICE FOR
ADMINISTRATIVE EFFICIENCY ONLY.
/9/ SEE DEPARTMENT OF THE NAVY, NAVAL SUPPORT ACTIVITY, LONG BEACH,
CALIFORNIA, A/SLMR NO. 629, FLRC NO. 76A-91.
/10/ WHEN THE REORGANIZATION IS COMPLETED, IT APPEARS THAT THE
GS-186-4 GROUP AIDES NOTED ABOVE AT FOOTNOTE 5 WILL BE CONVERTED TO
GS-186-5 GROUP LEADERS. ACCORDING TO THE RECORD, THERE IS NO DIFFERENCE
BETWEEN THE DUTIES PERFORMED BY EMPLOYEES IN THE TWO CLASSIFICATIONS.
/11/ SEE DEPARTMENT OF INTERIOR, BUREAU OF INDIAN AFFAIRS, NAVAJO
AREA, GALLUP, NEW MEXICO, A/SLMR NO. 99.
/12/ AS NOTED ABOVE AT FOOTNOTE 5, THERE ARE 5 PROFESSIONAL EMPLOYEES
ELIGIBLE TO BE INCLUDED IN THE UNIT: TWO GS-1710-5 TEACHERS AND THREE
GS-1710-9 TEACHERS.
7 A/SLMR 889; P. 730; CASE NO. 20-5510(CA); AUGUST 31, 1977.
AUGUST 31, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
SOCIAL SECURITY ADMINISTRATION,
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
WILKES-BARRE OPERATIONS BRANCH,
WILKES-BARRE, PENNSYLVANIA
A/SLMR NO. 889
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2809, AFL-CIO (AFGE)
ALLEGING THAT THE RESPONDENT VIOLATED SECTION 19(A)(6) OF THE ORDER BY
FAILING TO BARGAIN ON THE METHOD OF SELECTION OF EQUAL EMPLOYMENT
OPPORTUNITY (EEO) COUNSELORS IN ACCORDANCE WITH A WRITTEN ACCORD OF MAY
20, 1975, ENTERED INTO BY THE PARTIES WHEREIN THEY AGREED THAT THE
METHOD OF SELECTION WOULD BE BY "JOINT UNION/MANAGEMENT AGREEMENT."
THE ADMINISTRATIVE LAW JUDGE FOUND THAT UNDER THE TERMS OF THE
PARTIES' NEGOTIATED AGREEMENT AND THE MAY 20 ACCORD, THE RESPONDENT HAD
AN OBLIGATION TO BARGAIN ON THE METHOD OF SELECTION OF EEO COUNSELORS
AND THAT ITS FAILURE TO DO SO CONSTITUTED A VIOLATION OF SECTION
19(A)(6) OF THE ORDER.
THE ASSISTANT SECRETARY CONCURRED IN THE CONCLUSION OF THE
ADMINISTRATIVE LAW JUDGE THAT THE METHOD OF SELECTION OF EEO COUNSELORS
WAS A NEGOTIABLE MATTER WITHIN THE MEANING OF SECTION 11(A) OF THE
ORDER, ABSENT A STATUTORY OR OTHER APPROPRIATE LIMITATION, OR ABSENT A
CLEAR AND UNMISTAKABLE WAIVER OF THE RIGHT TO NEGOTIATE ON SUCH A
MATTER. AS NO SUCH LIMITATION OR WAIVER WAS FOUND TO EXIST, THE
RESPONDENT WAS FOUND TO BE OBLIGATED TO NEGOTIATE ON THE METHOD OF
SELECTION AND ITS FAILURE TO DO SO WAS DEEMED VIOLATIVE OF SECTION
19(A)(6) OF THE ORDER.
TO REMEDY THE RESPONDENT'S IMPROPER CONDUCT, THE ASSISTANT SECRETARY
ORDERED THAT THE RESPONDENT BARGAIN WITH THE AFGE ON THE METHOD OF
SELECTION, AND RE-EVALUATE ALL THE APPLICANTS FOR THE EEO COUNSELOR
POSITIONS IN ACCORDANCE WITH ANY AGREED UPON METHOD OF SELECTION.
SOCIAL SECURITY ADMINISTRATION,
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
WILKES-BARRE OPERATIONS BRANCH,
WILKES-BARRE, PENNSYLVANIA
RESPONDENT
CASE NO. 20-5510(CA)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2809, AFL-CIO
COMPLAINANT
DECISION AND ORDER
ON MARCH 8, 1977, ADMINISTRATIVE LAW JUDGE GEORGE FATH 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 CEASE AND DESIST THEREFROM AND 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.
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, AS MODIFIED HEREIN.
THE RESPONDENT, THE WILKES-BARRE OPERATIONS BRANCH OF THE SOCIAL
SECURITY ADMINISTRATION, AND THE COMPLAINANT, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2809, AFL-CIO, ARE PARTIES TO A NEGOTIATED
AGREEMENT WHICH WAS IN EFFECT AT ALL TIMES MATERIAL HEREIN. THE
AGREEMENT CONTAINS NO SPECIFIC REFERENCE TO THE SELECTION OR APPOINTMENT
OF EQUAL EMPLOYMENT OPPORTUNITY (EEO) COUNSELORS. /1/ A SOCIAL SECURITY
ADMINISTRATION INSTRUCTION PRESCRIBES THAT EITHER THE EEO OR DEPUTY EEO
OFFICER BE THE APPOINTING AUTHORITY FOR EEO COUNSELORS AND OUTLINES THE
DUTIES AND RESPONSIBILITIES OF THE COUNSELORS, BUT DOES NOT PRESCRIBE
THE METHOD FOR SELECTING SUCH COUNSELORS.
THE RECORD REVEALS THAT ON MAY 8, 1975, AFTER DISCOVERING THAT THE
THEN CURRENT EEO COUNSELOR WAS NO LONGER ELIGIBLE FOR THAT POSITION, THE
COMPLAINANT'S PRESIDENT, JOAN PARSONS, CONTACTED THE RESPONDENT'S BRANCH
CHIEF, JOSEPH ROARTY, AND SUGGESTED THAT THE PARTIES MEET TO DISCUSS THE
MATTER. ROARTY AND PARSONS MET AND SIGNED A WRITTEN ACCORD ON MAY 20,
1975, WHEREBY THEY AGREED THAT APPLICATIONS FOR THE VACANT EEO COUNSELOR
POSITIONS WOULD BE BY SELF-NOMINATION AND THAT THE METHOD OF SELECTION
WOULD BE BY "JOINT UNION/MANAGEMENT AGREEMENT". /2/ THEREAFTER, IN JUNE
OR JULY 1975, ROARTY WAS ADVISED BY HIGHER AGENCY MANAGEMENT THAT HE HAD
LACKED THE AUTHORITY TO ENTER THE MAY 20 ACCORD BECAUSE THE SELECTION OF
COUNSELORS IS A RETAINED RIGHT UNDER THE SOCIAL SECURITY ADMINISTRATION
REGULATION WHICH PROVIDES FOR THE EEO OR DEPUTY EEO OFFICER TO ACT AS
THE SELECTING OFFICER. ROARTY SO ADVISED THE COMPLAINANT. THE
RESPONDENT FURTHER CONTENDED THAT UNDER ARTICLE II, SECTION 3 OF THE
PARTIES' NEGOTIATED AGREEMENT, THE COMPLAINANT HAD WAIVED ITS RIGHT TO
BARGAIN OVER MATTERS WHICH ARE SUBJECT TO AGENCY REGULATIONS. /3/
ON AUGUST 13, 1975, A MEETING WAS HELD BETWEEN ALONZO ROGERS, EEO
OFFICER FOR THE SOCIAL SECURITY ADMINISTRATION'S BUREAU OF DATA
PROCESSING, BRANCH CHIEF ROARTY, AND THE COMPLAINANT'S VICE PRESIDENT
AND CHIEF STEWARD IN WHICH ROARTY REITERATED THAT APPLICANTS FOR THE
COUNSELOR POSITIONS WOULD BE BY SELF-NOMINATION. ROGERS THEN
DISTRIBUTED A PROPOSED DRAFT OF THE AGENCY'S AFFIRMATIVE ACTION PLAN AND
REQUESTED THE UNION'S INPUT ON IT. ON THAT SAME DATE, A MEMORANDUM WAS
SENT TO THE RESPONDENT'S EMPLOYEES BY ROARTY INDICATING, IN PART, THAT
ROGERS WOULD BE CONDUCTING THE SELECTION PROCESS FOR THE EEO COUNSELORS
AND ALSO THAT HE WOULD BE "CONSULTING AND CONFERRING WITH THE UNION
OFFICIALS FOR THEIR INPUT." SOME 37 APPLICANTS WERE INTERVIEWED BY
ROGERS IN SEPTEMBER WITH A REPRESENTATIVE OF THE COMPLAINANT PRESENT AS
AN OBSERVER. BY LETTER OF OCTOBER 29, ROGERS INFORMED ROARTY OF THE
FIVE CANDIDATES WHO HAD BEEN SELECTED. THEREAFTER, THE COMPLAINANT'S
PRESIDENT MET WITH THE RESPONDENT AND INDICATED THAT THE LATTER HAD
FAILED TO COMPLY WITH THE TERMS OF THE MAY 20 ACCORD IN WHICH THE
PARTIES AGREED THAT THE METHOD OF SELECTION WOULD BE BY "JOINT
UNION/MANAGEMENT AGREEMENT." THE INSTANT UNFAIR LABOR PRACTICE COMPLAINT
SUBSEQUENTLY WAS FILED ALLEGING A VIOLATION OF SECTION 19(A)(6) OF THE
ORDER ON THE BASIS THAT THE RESPONDENT HAD UNILATERALLY CHANGED THE
TERMS OF THE MAY 20 ACCORD BY FAILING TO NEGOTIATE OVER THE METHOD OF
SELECTION OF THE EEO COUNSELORS.
THE ADMINISTRATION LAW JUDGE FOUND THAT THE RESPONDENT VIOLATED
SECTION 19(A)(6) OF THE ORDER BY FAILING TO NEGOTIATE OVER THE METHOD OF
SELECTION OF EEO COUNSELORS AND BY UNILATERALLY ALTERING THE TERMS OF
THE PARTIES' NEGOTIATED AGREEMENT AND THE MAY 20 ACCORD. HE CONCLUDED,
AMONG OTHER THINGS, THAT UNDER ARTICLE II, SECTION 1 OF THE NEGOTIATED
AGREEMENT AND UNDER THE TERMS OF THE MAY 20 ACCORD, THE RESPONDENT HAD
AN OBLIGATION TO BARGAIN OVER THE METHOD OF SELECTION. AS THE
RESPONDENT HAD FAILED TO MEET ITS BARGAINING OBLIGATION IN THIS MATTER,
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED, AMONG OTHER THINGS, THAT THE
RESPONDENT NEGOTIATE WITH THE COMPLAINANT OVER THE METHOD OF SELECTION
AND RERUN THE SELECTION PROCESS.
I CONCUR IN THE CONCLUSION OF THE ADMINISTRATIVE LAW JUDGE THAT THE
RESPONDENT'S CONDUCT HEREIN VIOLATED SECTION 19(A)(6) OF THE ORDER. IN
THIS REGARD, I VIEW THE PROCEDURES AND FACTORS INVOLVED IN THE METHOD OF
SELECTION OF EEO COUNSELORS TO BE A NEGOTIABLE MATTER UNDER SECTION
11(A) OF THE ORDER, /4/ ABSENT STATUTORY OR OTHER APPROPRIATE
LIMITATION, OR ABSENT A CLEAR AND UNMISTAKABLE CONTRACTUAL WAIVER OF THE
RIGHT TO NEGOTIATE ON SUCH A MATTER. /5/ NO SUCH LIMITATION OR WAIVER
EXISTED IN THE INSTANT CASE. THUS, THE SOCIAL SECURITY ADMINISTRATION
REGULATION INVOLVED HEREIN DID NOT PROSCRIBE NEGOTIATIONS CONCERNING
PROCEDURES OR METHODS OF SELECTING EEO COUNSELORS AND THE MATTER WAS NOT
SPECIFICALLY COVERED BY THE PARTIES' NEGOTIATED AGREEMENT. /6/ FURTHER,
THE RECORD DOES NOT REFLECT THAT THE COMPLAINANT CLEARLY AND
UNEQUIVOCALLY WAIVED ITS RIGHT TO NEGOTIATE ON THIS MATTER. /7/
ACCORDINGLY, I FIND THAT THE RESPONDENT WAS OBLIGATED TO NEGOTIATE ON
THE METHOD OF SELECTION OF THE EEO COUNSELORS AND, AS IT FAILED TO
FULFILL SUCH OBLIGATION, PARTICULARLY AFTER HAVING AGREED TO DO SO IN
THE MAY 20 ACCORD, IT VIOLATED SECTION 19(A)(6) OF THE ORDER.
ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY FOR
LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE SOCIAL SECURITY
ADMINISTRATION, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
WILKES-BARRE OPERATIONS BRANCH, WILKES-BARRE, PENNSYLVANIA, SHALL:
1. CEASE AND DESIST FROM:
FAILING TO MEET AND CONFER WITH THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2809, AFL-CIO, ON THE METHOD FOR SELECTION OF EQUAL
EMPLOYMENT OPPORTUNITY COUNSELORS AT THE WILKES-BARRE OPERATIONS BRANCH.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE ORDER:
(A) MEET AND CONFER ON THE METHOD OF SELECTION OF EQUAL EMPLOYMENT
OPPORTUNITY COUNSELORS FOR THE WILKES-BARRE OPERATIONS BRANCH WITH THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2809, AFL-CIO.
(B) RE-EVALUATE ALL APPLICANTS FOR THE EQUAL EMPLOYMENT OPPORTUNITY
COUNSELOR POSITIONS AT THE WILKES-BARRE OPERATIONS BRANCH AND FILL THOSE
POSITIONS IN ACCORDANCE WITH ANY AGREED UPON METHOD OF SELECTION.
(C) POST AT THE WILKES-BARRE OPERATIONS BRANCH, WILKES-BARRE,
PENNSYLVANIA, 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
BRANCH CHIEF, 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 BRANCH CHIEF 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 30 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
AUGUST 31, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ THE ONLY REFERENCE TO EEO MATTERS CONTAINED IN THE NEGOTIATED
AGREEMENT ARE SET FORTH AS FOLLOWS:
ARTICLE II, SECTION 1 PROVIDES:
THE BRANCH AND THE LABOR ORGANIZATION AGREE TO ESTABLISH APPROPRIATE
MACHINERY, . . . , FOR JOINT CONSULTATION AND/OR NEGOTIATION, ON
PERSONNEL POLICIES, PRACTICES, AND PROCEDURES RELATING TO WORKING
CONDITIONS WHICH ARE WITHIN THE AUTHORITY OF THE BRANCH, . . . ,
INCLUDING, . . . EQUAL EMPLOYMENT OPPORTUNITIES, . . .
ARTICLE X, SECTION 9 PROVIDES:
LABOR AND MANAGEMENT AGREE TO COOPERATE IN PROVIDING EQUAL
OPPORTUNITY FOR ALL QUALIFIED PERSONS, . . . , AND TO PROMOTE THE FULL
REALIZATION OF EQUAL EMPLOYMENT OPPORTUNITY THROUGH A POSITIVE AND
CONTINUING EFFORT.
/2/ THIS WRITTEN ACCORD CONTAINED OTHER PROVISIONS WHICH HAVE NO
RELEVANCE TO THE INSTANT PROCEEDING.
/3/ ARTICLE II, SECTION 3 PROVIDES IN PART:
THE BRANCH AND THE LABOR ORGANIZATION AGREE THAT PERSONNEL POLICIES
AND PROCEDURES AND WORKING CONDITIONS THAT ARE SPECIFICALLY ESTABLISHED
BY FEDERAL STATUTES, EXECUTIVE ORDERS, OR RULES OR REGULATIONS ISSUED BY
THE CIVIL SERVICE COMMISSION, DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE, OR SOCIAL SECURITY ADMINISTRATION CANNOT BE THE SUBJECT OF
NEGOTIATION.
/4/ SEE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 997 AND
VETERANS ADMINISTRATION HOSPITAL, MONTGOMERY, ALABAMA, 2 FLRC 65, IN
WHICH THE FEDERAL LABOR RELATIONS COUNCIL HELD NEGOTIABLE PROPOSALS
WHICH CONCERNED PROCEDURES WITH RESPECT TO PROMOTION OF UNIT EMPLOYEES
THAT WOULD ASSURE THE LABOR ORGANIZATION INVOLVED AN ESSENTIALLY
NONCONTROLLING, PARTICIPATORY ROLE.
/5/ SEE, NASA, KENNEDY SPACE CENTER, KENNEDY SPACE CENTER, FLORIDA,
A/SLMR NO. 223.
/6/ AS THE MATTER WAS NOT COVERED BY THE NEGOTIATED AGREEMENT, THE
PARTIES COULD NOT HAVE UTILIZED THEIR CONTRACTUAL GRIEVANCE PROCEDURE TO
RESOLVE THE DISPUTE HEREIN.
/7/ CONTRARY TO THE CONTENTION OF THE RESPONDENT, ARTICLE II, SECTION
3 OF THE PARTIES' NEGOTIATED AGREEMENT, SET FORTH AT FOOTNOTE 3 ABOVE,
WAS NOT CONSIDERED TO CONSTITUTE A WAIVER OF THE COMPLAINANT'S RIGHT TO
NEGOTIATE IN THIS REGARD SINCE, AS INDICATED ABOVE, THE SOCIAL SECURITY
REGULATION INVOLVED HEREIN DID NOT PROSCRIBE NEGOTIATIONS WITH RESPECT
TO PROCEDURES OR METHODS FOR SELECTING EEO COUNSELORS.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS AND IN ORDER TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
AMENDED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REFUSE TO MEET AND CONFER WITH THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2809, AFL-CIO, ON THE METHOD OF SELECTION OF
EQUAL EMPLOYMENT OPPORTUNITY COUNSELORS AT THE WILKES-BARRE OPERATIONS
BRANCH.
WE WILL MEET AND CONFER ON THE METHOD OF SELECTION OF EQUAL
EMPLOYMENT OPPORTUNITY COUNSELORS WITH THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2809, AFL-CIO.
WE WILL RE-EVALUATE ALL APPLICANTS FOR THE EQUAL EMPLOYMENT
OPPORTUNITY COUNSELOR POSITIONS AT THE WILKES-BARRE OPERATIONS BRANCH
AND FILL THOSE POSITIONS IN ACCORDANCE WITH ANY AGREED UPON METHOD OF
SELECTION.
(AGENCY OR ACTIVITY
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 PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
SERVICES ADMINSTRATION, UNITED STATES DEPARTMENT OF LABOR, WHOSE ADDRESS
IS: ROOM 14120, GATEWAY BUILDING, 3535 MARKET STREET, PHILADELPHIA,
PENNSYLVANIA 19104.
U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
SUITE 700-1111 20TH STREET, N.W.
WASHINGTON, D.C. 20036
IN THE MATTER OF
SOCIAL SECURITY ADMINISTRATION
DEPARTMENT OF HEALTH, EDUCATION
AND WELFARE
WILKES-BARRE OPERATIONS BRANCH
RESPONDENT
CASE NO. 20-5510 (CA)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2809
COMPLAINANT
FRANCIS X. DIPPEL
MANAGEMENT REPRESENTATIVE
BUREAU OF DATA PROCESSING
516 ALTMEYER BUILDING
6401 SECURITY BOULEVARD
BALTIMORE, MARYLAND 21235
FOR THE RESPONDENT
JAMES FARRAR
NATIONAL REPRESENTATIVE, AFGE
ROCKLAND BUILDING, SUITE 201
4847 NORTH BROAD STREET
PHILADELPHIA, PENNSYLVANIA 19141
FOR THE COMPLAINANT
BEFORE: GEORGE A. FATH
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED (HEREINAFTER
CALLED THE ORDER). A NOTICE OF HEARING ON COMPLAINT WAS ISSUED BY THE
ACTING REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES,
PHILADELPHIA REGION, ON MAY 28, 1976, BASED ON A COMPLAINT FILED ON
FEBRUARY 17, 1976 BY LOCAL 2809, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (HEREINAFTER CALLED THE UNION) AGAINST SOCIAL SECURITY
ADMINISTRATION, DEPARTMENT OF HEALTH, EDUCATION & WELFARE, WILKES-BARRE
OPERATIONS BRANCH (HEREINAFTER CALLED RESPONDENT AND BRANCH). THE
NOTICE OF HEARING ON COMPLAINT WAS ISSUED WITH RESPECT TO THE ALLEGED
VIOLATIONS OF SECTION 19(A)(6) OF THE ORDER AS SET FORTH IN THE
COMPLAINT. BRIEFLY STATED, THE UNION COMPLAINTS: THE RESPONDENT
VIOLATED UNION-MANAGEMENT AGREEMENT IN THAT IT FAILED TO NEGOTIATE IN
GOOD FAITH THE METHOD OF SELECTION OF EQUAL EMPLOYMENT OPPORTUNITY
COUNSELORS FOR THE WILKES-BARRE OPERATIONS BRANCH OF THE AGENCY.
A HEARING WAS HELD ON SEPTEMBER 15, 1976, AT SCRANTON, PENNSYLVANIA.
ALL PARTIES WERE REPRESENTED AND WERE GIVEN FULL OPPORTUNITY TO PRESENT
EVIDENCE, EXAMINE AND CROSS EXAMINE WITNESSES, ARGUE AND FILE BRIEFS.
THE FOLLOWING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS ARE BASED
UPON THE ENTIRE RECORD INCLUDING OBSERVATION OF THE WITNESSES, THEIR
DEMEANOR, AND EVALUATION OF THEIR TESTIMONY.
FINDINGS OF FACT
AT ALL TIMES PERTINENT, THE UNION WAS THE EXCLUSIVE BARGAINING
REPRESENTATIVE OF THE NONSUPERVISORY EMPLOYEES OF THE WILKES-BARRE
OPERATIONS BRANCH OF THE AGENCY. AT THE TIME OF THE INCIDENTS GIVING
RISE TO THIS COMPLAINT THERE WAS A COLLECTIVE BARGAINING AGREEMENT
BETWEEN THE PARTIES EFFECTIVE AUGUST 16, 1972.
ON MAY 8, 1975, MS. JOAN C. PARSONS ADDRESSED A LETTER TO MR. JOSEPH
N. ROARTY, BRANCH CHIEF OF THE BRANCH TO POINT OUT THAT MS. THERESA
CHUPKA, THE EEO OFFICER (SIC) HAD BECOME AN EMPLOYEE OF THE PERSONNEL
OFFICE UNDER THE OFFICE OF ADMINISTRATION. THE LETTER IMPLIES THAT SHE
THEREBY BECAME INELIGIBLE TO CONTINUE AS AN OFFICER. SHE EXPRESSED THE
BELIEF THAT IT WOULD BE APPROPRIATE AT THIS TIME FOR A UNION/MANAGEMENT
MEETING TO DISCUSS THE MATTER. (EXHIBIT C-1).
A MEMORANDUM, OF A MEETING BETWEEN ROARTY AND PARSONS, EXHIBIT C-3,
DATED MAY 20, 1975, SIGNED BY BOTH IN PERTINENT PART, STATED AS FOLLOWS:
MR. ROARTY STATED HE RECEIVED A CALL FROM MR. JOSEPH BRACEY,
BALTIMORE, IN REGARDS TO THE
EEO OFFICER. MR. ROARTY RECEIVED AN "OK" TO SELECT 3 PEOPLE TO HOLD
THIS OFFICE. THE
VACANCIES WILL BE BY SELF-NOMINATION. MR. ROARTY FURTHER STATED THAT
THE METHOD OF SELECTION
WILL BE BY JOINT UNION/MANAGEMENT AGREEMENT.
IN JUNE OR JULY OF 1975, ROARTY TELEPHONED BRACEY ON SEVERAL THINGS
CONNECTED WITH THE SELECTION OF COUNSELORS AND TOLD HIM OF THE
UNION-MANAGEMENT AGREEMENT. ROARTY TESTIFIED THAT BRACEY TOLD HIM THE
AGREEMENT WAS OUTSIDE THE SCOPE OF HIS RESPONSIBILITY AND THAT HE COULD
HAVE NO INPUT INTO THIS PARTICULAR AREA-- IT WAS STRICTLY THE
RESPONSIBILITY OF THE BALTIMORE OFFICE (TR. 101, 102). ROARTY
INTERPRETED THIS AS A PROHIBITION OF NEGOTIATION EXTENDING TO THE ENTIRE
METHOD OF SELECTION OF EEO COUNSELORS FROM BEGINNING TO END, EXCEPT
INSOFAR AS THE UNION WISHED TO SUBMIT NOMINEES UNDER THE SELF-NOMINATING
PROCESS.
MR. ALONZO ROGERS, EEO OFFICER FOR THE BALTIMORE FOR THE BUREAU OF
DATA PROCESSING, WAS ASSIGNED TO WILKES-BARRE TO CONDUCT THE SELECTION
PROCESS. ON AUGUST 13, 1975, HE HELD A MEETING ATTENDED BY MANAGEMENT
AND UNION OFFICERS. A DOCUMENT DESCRIBED AS A PROPOSED PLAN OF THE
RESPONDENTS EEO PROGRAM WAS HANDED TO THE UNION PEOPLE WITH THE
SUGGESTION THAT IF THEY HAD ANY INPUT THEY COULD SUBMIT IT. ROGERS
TALKED ABOUT WHY HE WAS SENT TO WILKES-BARRE. THE METHOD OF SELECTING
THE COUNSELORS WAS NOT DISCUSSED (TR. 78). ON THE SAME DAY, A
MEMORANDUM WAS ADDRESSED TO ALL EMPLOYEES OF THE BRANCH INFORMING THEM
THAT ROBERS WOULD BE CONDUCTING THE SELECTION FOR THREE TO FOUR
COUNSELORS AND WILL BE CONSULTING WITH THE UNION OFFICIALS FOR THEIR
INPUT.
ON SEPTEMBER 15, 1975, THE INTERVIEWS WERE BEGUN. ROGERS PERMITTED
THE UNION TO HAVE A REPRESENTATIVE PRESENT DURING THE SCREENING. (HE
WANTED TO HAVE THE UNION PRESENT TO SHOW THAT THERE WAS NOTHING TO
HIDE). ALTHOUGH THE UNION WAS PRESENT, IT WAS NOT PERMITTED TO
PARTICIPATE IN THE INTERVIEWS. ABOUT 37 PEOPLE, SELF NOMINEES, WERE
INTERVIEWED. FIVE OR SIX PEOPLE, WHO OBJECTED TO THE PRESENCE OF THE
UNION DURING THEIR INTERVIEWS, WERE EXCLUDED AND REFUSED CONSIDERATION.
ROGERS TESTIFIED, "I SAID THAT ANY CANDIDATE IN THE SELF-NOMINATING
PROCESS THAT DID NOT COME IN TO BE INTERVIEWED BECAUSE THE UNION WOULD
BE PRESENT NEED NOT COME IN TO BE INTERVIEWED BECAUSE THE UNION WOULD BE
PRESENT (TR. 98, 99).
THE INTERVIEWS WERE CALCULATED TO ELICIT FROM THE NOMINEES THEIR
KNOWLEDGE OF THE CIVIL RIGHTS MOVEMENT, THE EQUAL EMPLOYMENT OPPORTUNITY
ACT OF 1964, THE MEANING OF DISCRIMINATION, AND WHETHER THEY HAD
EXPERIENCED OR SEEN DISCRIMINATION IN THE WILKES-BARRE BRANCH.
PARSONS TESTIFIED TO A MEETING SHE HAD WITH MANAGEMENT AFTER THE
INTERVIEWS. SHE BROUGHT UP THE AGREEMENT OF MAY 20, 1975. SHE
TESTIFIED THAT ROGERS TOLD HER IT WAS INVALID AND NOT WORTH ANYTHING.
BY LETTER DATED OCTOBER 29, 1975, ROGERS INFORMED ROARTY OF THE
SELECTION OF FIVE EEO COUNSELORS FOR THE BRANCH.
ON OR ABOUT NOVEMBER 20, 1975, THE UNION FILED A MEMORANDUM WITH THE
BRANCH CHIEF CHARGING THE SOCIAL SECURITY ADMINISTRATION WITH A
VIOLATION OF SECTION 19(A)(6) OF THE EXECUTIVE ORDER FOR REFUSING TO
NEGOTIATE IN GOOD FAITH ON THE METHOD OF THE SELECTION OF EEO
COUNSELORS. A COMPLAINT ALLEGING VIOLATION OF SECTION 19(A)(6) OF THE
ORDER WAS FILED WITH THE REGIONAL ADMINISTRATOR ON FEBRUARY 17, 1976.
APPLICABLE PROVISIONS OF EXECUTIVE ORDER AND COLLECTIVE
BARGAINING
EXECUTIVE ORDER, AS AMENDED:
SECTION 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, 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 FOR
WHICH A COMPELLING NEED EXISTS UNDER CRITERIA ESTABLISHED BY THE FEDERAL
LABOR RELATIONS COUNCIL AND WHICH ARE ISSUED AT THE AGENCY HEADQUARTERS
LEVEL OR AT THE LEVEL OF A PRIMARY NATIONAL SUBDIVISION; A NATIONAL OR
OTHER CONTROLLING AGREEMENT AT A HIGHER LEVEL IN THE AGENCY; AND THIS
ORDER. THEY MAY NEGOTIATE AN AGREEMENT, OR ANY QUESTION ARISING
THEREUNDER; DETERMINE APPROPRIATE TECHNIQUES, CONSISTENT WITH SECTION
17 OF THIS ORDER, TO ASSIST IN SUCH NEGOTIATION; AND EXECUTE A WRITTEN
AGREEMENT OR MEMORANDUM OF UNDERSTANDING.
SECTION 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.
GENERAL AGREEMENT BETWEEN SOCIAL SECURITY ADMINISTRATION,
WILKES-BARRE OPERATIONS BRANCH AND SSA LOCAL 2809,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
EFFECTIVE AUGUST 16, 1972.
ARTICLE II
SECTION 1. THE BRANCH AND THE LABOR ORGANIZATION AGREE TO ESTABLISH
APPROPRIATE MACHINERY, AS HEREINAFTER PROVIDED, FOR JOINT CONSULTATION
AND/OR NEGOTIATION, ON PERSONNEL POLICIES, PRACTICES, AND PROCEDURES
RELATING TO WORKING CONDITIONS WITHIN THE LIMITATIONS SET FORTH IN
SECTION 2 BELOW, INCLUDING, BUT NOT LIMITED TO SUCH MATTERS AS SAFETY,
TRAINING, LABOR-MANAGEMENT COOPERATION, EMPLOYEE SERVICES, METHODS OF
ADJUSTING GRIEVANCES, APPEALS, OVERTIME, LEAVE, PROMOTION PLANS,
DEMOTION PRACTICES, EQUAL EMPLOYMENT OPPORTUNITIES, REDUCTION IN FORCE
PRACTICES, AND HOURS OF WORK.
SECTION 2. IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THE
AGREEMENT, OFFICIALS AND EMPLOYEES ARE GOVERNED BY EXISTING OR FUTURE
LAW- 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 SUBSEQUENTLY 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.
SECTION 3. THE BRANCH AND THE LABOR ORGANIZATION AGREE THAT
PERSONNEL POLICIES AND PROCEDURES AND WORKING CONDITIONS THAT ARE
SPECIFICALLY ESTABLISHED BY FEDERAL STATUTES, EXECUTIVE ORDERS, OR RULES
OR REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION, DEPARTMENT OF
HEALTH, EDUCATION, AND WELFARE, OR SOCIAL SECURITY ADMINISTRATION CANNOT
BE THE SUBJECT OF NEGOTIATION. IT IS FURTHER UNDERSTOOD AND AGREED THAT
THE AREAS OF CONSULTATION OR NEGOTIATION SHALL NOT EXTEND TO SUCH AREAS
OF DISCRETION AND POLICY AS THE MISSION OF THE BRANCH, ITS BUDGET,
ORGANIZATION AND ASSIGNMENT OF PERSONNEL, OR THE TECHNOLOGY OF
PERFORMING WORK.
GENERAL AGREEMENT BETWEEN SOCIAL SECURITY ADMINISTRATION
HEADQUARTERS BUREAUS AND OFFICES IN BALTIMORE AND SSA
LOCAL 1923, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, EFFECTIVE SEPTEMBER 24, 1974
ARTICLE 5
SECTION C. THE PARTIES MUTUALLY AGREE THAT THE UNION MAY NOMINATE
INDIVIDUALS TO SERVE AS EQUAL OPPORTUNITY COUNSELORS. NO EMPLOYEE MAY
SERVE AS BOTH AN EQUAL OPPORTUNITY COUNSELOR AND A UNION OFFICIAL OR
SUPERVISOR. THE UNION WILL BE NOTIFIED AS TO THE SPECIFIC REASON FOR
THE NONSELECTION OF ANY OF ITS NOMINEES. THE PARTIES WILL MEET AND
CONFER ON THE FACTORS TO BE USED FOR THE SELECTION OF THESE COUNSELORS.
CONCLUSIONS OF LAW
THE RESPONDENT DENIES THAT IT REFUSED TO CONSULT, CONFER OR NEGOTIATE
WITH AFGE LOCAL 2809 IN VIOLATION OF SECTION 19(A)(6) OF THE EXECUTIVE
ORDER.
IT CONTENDS THAT SECTION 11(A) OF THE ORDER LIMITS AND RESTRICTS ITS
OBLIGATION TO NEGOTIATE ONLY ON THOSE MATTERS WHICH MAY BE APPROPRIATE
UNDER APPLICABLE LAWS AND REGULATIONS, AND, HENCE IT IS OBLIGATED TO
NEGOTIATE ON ONLY THOSE MATTERS CONTAINED IN THE GENERAL AGREEMENT
BETWEEN THE PARTIES. WITHIN THE LIMITS IMPOSED BY THIS VIEW OF THE
SECTION, IT POINTS TO ARTICLE II, SECTION 3 OF THE GENERAL AGREEMENT,
AND SAYS THAT THE UNION CLEARLY AND UNMISTAKABLY WAIVED ITS RIGHT TO
NEGOTIATE THE MATTER OF THE METHOD AND SELECTION OF EEO COUNSELORS. ON
THE FOREGOING PREMISES IT REACHES THE FOLLOWING CONCLUSION:
THUS, BECAUSE THE SELECTION AND APPOINTMENT OF EEO COUNSELORS LIES
SOLELY WITH THE EEO
OFFICER OF THE SOCIAL SECURITY ADMINISTRATION, IN THE PERSON OF MR.
FRANK DEGEORGE, WHO IS THE
ASSOCIATE COMMISSIONER FOR MANAGEMENT AND ADMINISTRATION, MR.
ROARTY, THE BRANCH CHIEF, DOES
NOT AND DID NOT HAVE THE AUTHORITY TO NEGOTIATE THE METHODS OF AND
THE SELECTION OF EEO
COUNSELORS. FURTHER, IN ARGUMENTO, (SIC), EVEN IF SUCH AUTHORITY TO
NEGOTIATE HAD EXISTED
WITH MR. ROARTY, HE HAD NO OBLIGATION TO NEGOTIATE THE METHODS OF AND
SELECTION SINCE THE
ENTIRE EEO PROGRAM IS GOVERNED BY THE CIVIL SERVICE COMMISSION
REGULATIONS, DEPARTMENT OF
HEALTH, EDUCATION AND WELFARE, AND THE REGULATIONS OF SOCIAL SECURITY
ADMINISTRATION, AND
HENCE, THE COMPLAINANT HAS WAIVED THE RIGHTS TO NEGOTIATE THESE
MATTERS BY THE PROVISIONS OF
THE GENERAL AGREEMENT BETWEEN THE PARTIES.
THE RESPONDENT FURTHER ARGUES THAT ROARTY MISUNDERSTOOD HIS ROLE IN
THE MATTER OF EEO AND MADE A MISTAKE IN HIS DEALINGS WITH THE UNION
RELATIVE TO NEGOTIATION ON THE MATTER OF SELECTION OF COUNSELORS. IT
CONCLUDES THAT SINCE IT WAS A MISTAKE, A HONEST ONE, THE RESPONDENT
CANNOT BE GUILTY OF VIOLATING SECTION 19(A)(6).
FINALLY, IT ARGUES THAT THE PARTIES ON THE LOCAL LEVEL DID NOT
UNDERSTAND AND COMPREHEND THE RESTRICTIONS ON THEM. AS EVIDENCE OF THE
LACK OF UNDERSTANDING OF THE PARTIES, IT SHOWS THAT ROARTY AND PARSONS
REFERRED TO THE SELECTION OF EEO OFFICERS RATHER THAN EEO COUNSELORS IN
THEIR EARLY DISCUSSIONS. IT CONCLUDES THAT THE PARTIES DID NOT FULL
UNDERSTAND OR COMPREHEND THE PROBLEMS AT HAND UNTIL THEIR MEETING WITH
ROGERS ON AUGUST 13, 1975.
THESE ARGUMENTS ARE REJECTED.
IN FASHIONING ITS DEFENSE, THE RESPONDENT INTRODUCED A NEW TERM INTO
THIS CASE THAT WAS NOT AN ISSUE BETWEEN THE PARTIES. IN ISSUE WAS THE
QUESTION AS TO WHETHER OR NOT THE RESPONDENT HAD AN OBLIGATION TO CONFER
WITH THE UNION IN THE MATTER OF THE METHOD OF SELECTION OF THE EEO
COUNSELORS. THE QUESTION RAISED BY THE DEFENSE IS WHETHER THE
RESPONDENT HAD AN OBLIGATION TO NEGOTIATE THE METHOD AND SELECTION OF
EEO COUNSELORS. AS PROPOSED BY THE UNION, IT WAS SIMPLY A MATTER OF
DISCUSSING WITH MANAGEMENT THE NOMINATING PROCESS, QUALIFICATIONS OF
NOMINEES, AND THE APPOINTMENT MACHINERY. AS POSED BY THE RESPONDENT,
THE UNION WAS ASKING NOT ONLY FOR A VOICE IN THE METHOD OF SELECTION OF
COUNSELORS, BUT IT WAS ASKING TO BE ALLOWED TO NEGOTIATE THE SELECTION
AS WELL. IT IS TO THE ALTERED PROPOSITION THAT RESPONDENT MAKES ITS
ARGUMENT, AND ATTEMPTS TO SHOW THAT IT DID NOT HAVE THE AUTHORITY TO
NEGOTIATE THE SELECTION OF COUNSELORS-- A MANAGEMENT PREROGATIVE.
OBVIOUSLY, THE ARGUMENT IS BESIDE THE POINT.
IN BALTIMORE, THE RESPONDENT RECOGNIZES THE NEGOTIABILITY OF THE
METHOD OF SELECTING COUNSELORS. UNDER THE TERMS OF AN AGREEMENT BETWEEN
THE HEADQUARTERS BUREAUS AND THE LOCAL UNION AT BALTIMORE EFFECTIVE
SEPTEMBER 24, 1974, RECEIVED INTO EVIDENCE OVER AN OBJECTION ON
RELEVANCE, THE RESPONDENT IS BOUND NOT ONLY TO MEET AND CONFER ON ALL
PHASES OF THE DEVELOPMENT AND IMPLEMENTATION OF THE AFFIRMATIVE ACTION
PLAN (EEO), BUT, IN ADDITION, IT IS REQUIRED TO NOTIFY THE UNION AS TO
THE SPECIFIC REASON FOR THE NONSELECTION OF A UNION NOMINEE. WHILE THE
BROAD TERMS OF THIS AGREEMENT CANNOT BE ENGRAFTED ON THE GENERAL
AGREEMENT BETWEEN THE RESPONDENT AND THE BRANCH, THIS AGREEMENT IS
EVIDENCE THAT THE RESPONDENT DOES HAVE AUTHORITY TO NEGOTIATE THE METHOD
OF THE SELECTION OF COUNSELORS. PRESUMABLY, THE RULES, REGULATIONS, AND
POLICY UNDER WHICH RESPONDENT OPERATES IN BALTIMORE ARE EQUALLY
APPLICABLE AT ITS BRANCH IN WILKES-BARRE.
ARTICLE II SECTION 3 OF THE GENERAL AGREEMENT BETWEEN THE PARTIES,
SAID BY THE RESPONDENT TO BE A WAIVER BY THE UNION OF THE RIGHT TO
NEGOTIATE THE METHOD OF THE SELECTION OF COUNSELORS, CONTAINS EXPRESS
RECOGNITION OF CERTAIN MATTERS, CONSISTENT WITH THE ORDER, WHICH ARE
NONNEGOTIABLE. THE PROSCRIPTIONS OF THE ORDER ARE A PART OF EVERY
GENERAL AGREEMENT-- EXPRESSED OR IMPLIED. THIS SECTION OF THE GENERAL
AGREEMENT IS PRECATORY. UNDER NO CIRCUMSTANCES CAN IT BE CONSIDERED A
WAIVER FOR THE SIMPLE REASON THAT THERE ARE NO RIGHTS TO BE WAIVED WHERE
NONE EXIST. IF, INDEED, THIS SECTION WERE TO BE CONSTRUED A WAIVER,
UNDER THE CIRCUMSTANCES IN THIS CASE, IT COULD BE EXTENDED TO LOGICALLY
INCLUDE EVERY TERM OF THE AGREEMENT BETWEEN THESE PARTIES TO PREVENT
NEGOTIATION. SUCH AN ABSURD CONCLUSION IS PROHIBITED BY THE PLAIN
MEANING OF THE ORDER WHICH WAS PROMULGATED TO PROMOTE DISCOURSE BETWEEN
LABOR AND MANAGEMENT THROUGH NEGOTIATION. THIS ARGUMENT IS UNSOUND.
ARTICLE II, SECTION 1 OF THE GENERAL AGREEMENT BETWEEN THE RESPONDENT
AND THE BRANCH CONTAINS AN AGREEMENT TO ESTABLISH APPROPRIATE MACHINERY
FOR JOINT CONSULTATION AND/OR NEGOTIATION ON PERSONNEL POLICIES AND
PROCEDURES RELATING TO WORKING CONDITIONS OF THE BRANCH; INCLUDING, BUT
NOT LIMITED TO EQUAL OPPORTUNITIES. THERE IS NO EVIDENCE, AND THE POINT
IS NOT MADE BY THE RESPONDENT, THAT THIS PROVISION DOES NOT EXTEND TO
NEGOTIATION OF THE METHOD OF SELECTING EEO COUNSELORS. THERE IS AN
OBLIGATION TO NEGOTIATE EQUAL EMPLOYMENT OPPORTUNITIES UNDER THE GENERAL
AGREEMENT, AND THE SPECIAL AGREEMENT BETWEEN ROARTY AND PARSONS OF MAY
20, 1975, SERVES AS A REITERATION AND CONFIRMATION OF THAT OBLIGATION.
WHERE, AS IN THIS CASE, AN AGENCY, THROUGH ITS LOCAL BARGAINING
REPRESENTATIVE, NEGOTIATED AND REACHED AGREEMENT ON A PROPOSAL IN
DISPUTE AS PERMITTED BY THE ORDER, THE AGENCY CANNOT, AFTER THAT FACT,
CHANGE ITS POSITION. SEE AFGE COUNCIL OF LOCALS 1497 AND 2165 AND
REGION 3, GENERAL SERVICES ADMINISTRATION, BALTIMORE, MARYLAND, FLRC NO.
74A-48 (JUNE 26, 1975), REPORT NO. 75.
THE RESPONDENT CANNOT RELIEVE ITSELF OF THE RESPONSIBILITIES CREATED
BY THE AGREEMENTS BY CLAIMING HONEST MISTAKE AND MISUNDERSTANDING. AS
DEFENSES, THESE PLEAS LACK LEGAL EFFICACY AND THEY DO NOT PREVAIL
AGAINST THE COMPLAINT.
THE RESPONDENT CONSCIOUSLY DISREGARDED ITS OBLIGATION TO NEGOTIATE ON
THE MATTER OF THE METHOD OF THE SELECTION OF COUNSELORS IN VIOLATION OF
SECTION 19(A)(6) OF THE EXECUTIVE ORDER. IT ACTED UNILATERALLY IN
ALTERING THE TERMS OF THE GENERAL AND SPECIAL AGREEMENTS BETWEEN IT AND
THE BRANCH. IT ACTED UNILATERALLY IN DICTATING THE TERMS AND CONDITIONS
FOR THE SELECTION OF COUNSELORS WITHOUT REGARD TO THE DESIRES, NEEDS,
AND PECULIAR PROBLEMS OF THE EMPLOYEES OF THE BRANCH. THE TOKEN
PARTICIPATION PERMITTED THE UNION WAS NOT NEGOTIATION REGARDLESS OF HOW
THAT TERM IS DEFINED, AND WAS CALCULATED TO GIVE THE APPEARANCE "THAT
THERE WAS NOTHING TO HIDE".
IN DETERMINING THE REMEDY TO BE APPLIED IN THIS CASE, CONSIDERATION
SHOULD BE GIVEN TO THE EFFECTS OF THE RESPONDENT'S CONDUCT IN THIS CASE.
IN CONTRAST TO ITS POLICY IN BALTIMORE, THE RESPONDENT SINGLED OUT THE
WILKES-BARRE BRANCH FOR UNEQUAL TREATMENT IN THE MATTER OF EEO. IT
UNDERMINED THE AUTHORITY AND EFFECTIVENESS OF THE BRANCH CHIEF IN
WORKING TOWARD HARMONIOUS LABOR-MANAGEMENT RELATIONS BY ABRUPTLY
RESCINDING AN AGREEMENT HE HAD MADE TO NEGOTIATE. THE REJECTION OF THE
UNION IN THIS MATTER TENDED TO DENIGRATE THE UNION IN THE EYES OF THE
EMPLOYEES OF THE BRANCH. THE EXCLUSION OF EMPLOYEES WHO OBJECTED TO THE
UNION BEING PRESENT AT THEIR INTERVIEWS DISCRIMINATED AGAINST THOSE
EMPLOYEES FOR THEIR NONUNION STATUS. FINALLY, THE CRITERIA USED FOR
SCREENING NOMINEES WAS RESTRICTED IN PERSPECTIVE AND, AS A MEASUREMENT
OF QUALIFICATIONS, CAPABLE OF PRODUCING COUNSELORS LACKING IN THE
UNDERSTANDING NECESSARY TO SOLVE PROBLEMS IN WILKES-BARRE, PENNSYLVANIA.
ALL THINGS CONSIDERED, THE PURPOSE OF THE ORDER AND THE EEO PROGRAM
WILL BE BEST SERVED BY DISCHARGING ALL OF THE COUNSELORS APPOINTED IN
THE ABOVE DESCRIBED PROCESS. THE PARTIES SHOULD BEGIN ANEW IN THE
SELECTION PROCESS WITH CAREFUL ATTENTION GIVEN TO THEIR OBLIGATIONS
UNDER THE ORDER AND THEIR AGREEMENTS.
RECOMMENDATIONS
THE RESPONDENT IS FOUND TO HAVE ENGAGED IN CONDUCT VIOLATIVE OF
EXECUTIVE ORDER 11491, AS AMENDED, AND, THEREFORE, IT IS RECOMMENDED
THAT THE ASSISTANT SECRETARY ADOPT THE FOLLOWING ORDER WHICH IS DESIGNED
TO EFFECTUATE THE POLICIES OF THE ORDER.
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 SOCIAL SECURITY
ADMINISTRATION, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
WILKES-BARRE, PENNSYLVANIA, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO CONSULT, CONFER AND NEGOTIATE WITH LOCAL 2809,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, IN THE MATTER OF THE METHOD
OF SECTION OF EQUAL EMPLOYMENT OPPORTUNITY COUNSELORS AT THE
WILKES-BARRE OPERATIONS BRANCH OF THE SOCIAL SECURITY ADMINISTRATION.
(B) UNILATERALLY CHANGING THE TERMS AND CONDITIONS OF THE COLLECTIVE
BARGAINING AGREEMENT BETWEEN WILKES-BARRE OPERATIONS BRANCH AND LOCAL
2809.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE EXECUTIVE ORDER, AS AMENDED:
(A) DISCHARGE ALL EEO COUNSELORS APPOINTED BY SOCIAL SECURITY
ADMINISTRATION AS THE RESULT OF THE SELECTION PROCESS BEGUN ON OR ABOUT
AUGUST 13, 1975.
(B) INSTITUTE AND COMPLETE WITHIN A REASONABLE TIME A SELECTION
PROCESS FOR THE APPOINTMENT OF EEO COUNSELORS WHICH INCLUDES NEGOTIATION
WITH THE UNION ON THE MATTER OF THE METHOD OF THE SELECTION OF
COUNSELORS.
(C) PROVIDE FOR PARTICIPATION OF NONUNION EMPLOYEES IN THE SELECTION
PROCESS FOR THE APPOINTMENT OF EEO COUNSELORS.
(D) POST AT ITS FACILITY AT WILKES-BARRE OPERATIONS BRANCH,
WILKES-BARRE, PENNSYLVANIA, 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 BRANCH CHIEF 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 BRANCH CHIEF SHALL TAKE REASONABLE STEPS TO
INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(E) 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.
GEORGE A. FATH
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 8, 1977
WASHINGTON, D.C.
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE ASSISTANT SECRETARY
OF LABOR ?OR LABOR-MANAGEMENT RELATIONS AND IN ORDER TO
EFFECTUATE THE POLICIES O? EXECUTIVE ORDER 11491, AS
AMENDED LABOR RELATIONS IN THE FEDERAL SERVICE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REFUSE TO MEET AND CONFER IN GOOD FAITH IN THE MATTER OF
THE METHOD OF SELECTING EEO COUNSELORS FOR THE WILKES-BARRE OPERATIONS
BRANCH OF THE SOCIAL SECURITY ADMINISTRATION.
WE WILL NOT UNILATERALLY CHANGE THE TERMS AND CONDITIONS OF THE
COLLECTIVE BARGAINING AGREEMENT BETWEEN THE WILKES-BARRE OPERATIONS
BRANCH AND LOCAL 2809 OF THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
7 A/SLMR 888; P. 728; CASE NO. 42-3588(CU); AUGUST 31, 1977.
AUGUST 31, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER CLARIFYING UNIT
OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
FLORIDA AIR NATIONAL GUARD,
ST. AUGUSTINE, FLORIDA
A/SLMR NO. 888
THIS CASE INVOLVED A PETITION FOR CLARIFICATION OF UNIT (CU) FILED BY
THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-91 (NAGE)
SEEKING TO CLARIFY THE STATUS OF THREE JOB DESCRIPTIONS: AIRCRAFT
ARMAMENT SYSTEMS MECHANIC, WG 6652-13; HYDROMECHANICAL FUEL CONTROL
REPAIRER, WG 8255-12; AND TURBINE POWERED SYSTEMS REPAIRER (FOREMAN),
WG 8274-12. WHILE THE NAGE CONTENDED THAT ALL THREE CLASSIFICATIONS
SHOULD BE INCLUDED IN THE EXISTING UNIT, THE ACTIVITY ARGUED THAT ALL
THREE POSITIONS WERE SUPERVISORY AND SHOULD BE EXCLUDED FROM EXCLUSIVELY
RECOGNIZED UNIT.
THE ASSISTANT SECRETARY CONCLUDED THAT TWO OF THE THREE EMPLOYEES IN
QUESTION, THE HYDROMECHANICAL FUEL CONTROL REPAIRER AND THE TURBINE
POWERED SYSTEMS REPAIRER (FOREMAN), WERE SUPERVISORS AND THAT THE OTHER
EMPLOYEE, AN AIRCRAFT ARMAMENT SYSTEMS MECHANIC, WAS NOT A SUPERVISOR
WITHIN THE MEANING OF THE ORDER. ACCORDINGLY, THE ASSISTANT SECRETARY
CLARIFIED THE UNIT CONSISTENT WITH HIS FINDINGS.
FLORIDA AIR NATIONAL GUARD,
ST. AUGUSTINE, FLORIDA
ACTIVITY
CASE NO. 42-3588(CU)
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-91
PETITIONER
DECISION AND ORDER CLARIFYING UNIT
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 THE SUBJECT CASE, THE ASSISTANT SECRETARY
FINDS:
THE PETITIONER, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
R5-91, HEREIN CALLED NAGE, SEEKS TO CLARIFY AN EXISTING EXCLUSIVELY
RECOGNIZED UNIT OF ALL FLORIDA AIR NATIONAL GUARD TECHNICIANS /1/ TO
INCLUDE TWO EMPLOYEES IN THE CLASSIFICATION "PNEUDRAULIC SYSTEMS
MECHANIC, WG-12, JOB NUMBERS 45-48 AND 45-35," AND ONE EMPLOYEE IN THE
CLASSIFICATION "AIRCRAFT ORDNANCE MECHANIC, WG-13, JOB NUMBER 45-79."
/2/ THE NAGE CONTENDS THAT THE THREE EMPLOYEES ARE NOT SUPERVISORS
WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER AND, THEREFORE, SHOULD
BE INCLUDED IN THE UNIT. THE ACTIVITY TAKES THE POSITION THAT THESE
EMPLOYEES ARE SUPERVISORS AND SHOULD BE EXCLUDED FROM THE UNIT.
THE MISSION OF THE ACTIVITY IS TO TRAIN PERSONNEL, CARE FOR MILITARY
EQUIPMENT AND MAINTAIN READINESS IN CASE OF ALERT. THE ACTIVITY IS
DIVIDED INTO SPECIALIZED BRANCHES EACH OF WHICH HAS ITS PARTICULAR
MISSION. THE TWO BRANCHES INVOLVED HEREIN ARE THE MUNITIONS BRANCH AND
THE FIELD MAINTENANCE BRANCH.
AIRCRAFT ARMAMENT SYSTEMS MECHANIC, WG 6652-13, JOB NUMBER
45-79
THIS TECHNICIAN POSITION, ALSO KNOWN AS THE EXPLOSIBLE ORDNANCE
DISPOSAL SHOP SUPERVISOR, IS LOCATED IN A SUBDIVISION OF THE MUNITIONS
MAINTENANCE BRANCH OF THE AIRCRAFT MAINTENANCE DIVISION. AT THE TIME OF
THE HEARING, THIS POSITION WAS FILLED BY MR. WILLIAM L. CROUSE. THE
EVIDENCE SHOWS THAT CROUSE HAS ONE SUBORDINATE EMPLOYEE, AN EXPLOSIVE
ORDNANCE TECHNICIAN, WAGE GRADE 11.
THE RECORD REVEALS THAT COURSE DOES NOT POSSESS THE AUTHORITY TO
HIRE, TRANSFER, SUSPEND, LAY OFF, RECALL, PROMOTE, DISCHARGE, ASSIGN,
REWARD OR DISCIPLINE THIS EMPLOYEE. ALTHOUGH IT APPEARS THAT HE MAY
RECOMMEND SUCH ACTIONS, THE EVIDENCE ESTABLISHES THAT HIS
RECOMMENDATIONS ARE NOT NECESSARILY EFFECTIVE IN THAT HIS IMMEDIATE
SUPERVISOR EVALUATES AND RECONSIDERS CROUSE'S RECOMMENDATIONS AND ON
OCCASION REVERSES THEM. IT FURTHER APPEARS THAT WHILE CROUSE SCHEDULES
WORK FOR HIS SUBORDINATE EMPLOYEE, THIS DUTY IS SUFFICIENTLY ROUTINE AND
CLERICAL IN NATURE AS TO MAKE CROUSE MORE IN THE NATURE OF A WORK LEADER
THAN A SUPERVISOR.
UNDER THESE CIRCUMSTANCES, I FIND THAT THE EVIDENCE DOES NOT
ESTABLISH THAT CROUSE IS A SUPERVISOR WITHIN THE MEANING OF SECTION 2(C)
OF THE ORDER, AND I SHALL THEREFORE ORDER THAT HE BE INCLUDED WITHIN THE
EXCLUSIVELY RECOGNIZED UNIT.
HYDROMECHANICAL FUEL CONTROL REPAIRER, WG 8255-12, JOB
NUMBER 45-35 AND TURBINE POWERED SYSTEMS REPAIRER
(FOREMAN), WG 8274-12, JOB NUMBER 45-48 /3/
THE TECHNICIAN FILLING THE HYDROMECHANICAL FUEL CONTROL REPAIRER
POSITION FIELD MAINTENANCE BRANCH. IS ALSO KNOWN AS THE FUEL SYSTEMS
SHOP SUPERVISOR. THE TECHNICIAN FILLING THE TURBINE POWERED SYSTEMS
REPAIRER POSITION IS ALSO KNOWN AS THE ENVIRONMENTAL SHOP SUPERVISOR.
THE RECORD REVEALS THAT, AMONG THEIR DUTIES AND RESPONSIBILITIES, EACH
TECHNICIAN HAS ONE SUBORDINATE EMPLOYEE AND THAT THESE TECHNICIANS HAVE
EFFECTIVELY RECOMMENDED THEIR HIRING.
ON THIS BASIS, I FIND THAT EMPLOYEES IN THESE CLASSIFICATIONS ARE
SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER AND SHOULD
BE EXCLUDED FROM THE UNIT HEREIN.
ORDER
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, IN
WHICH EXCLUSIVE RECOGNITION WAS GRANTED TO THE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R5-91, ON AUGUST 16, 1971, BE, AND IT HEREBY
IS, CLARIFIED BY INCLUDING IN SUCH UNIT THE POSITION OF AIRCRAFT
ARMAMENT SYSTEMS MECHANIC, WG 6652-13, JOB NUMBER 45-79; AND BY
EXCLUDING FROM SUCH UNIT THE POSITIONS OF HYDROMECHANICAL FUEL CONTROL
REPAIRER, WG 8255-12, JOB NUMBER 45-35 AND TURBINE POWERED SYSTEMS
REPAIRER (FOREMAN), WG 8274-12, JOB NUMBER 45-48.
DATED, WASHINGTON, D.C.
AUGUST 31, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ ON AUGUST 16, 1971, THE NAGE WAS CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE IN A UNIT OF ALL "WAGE BOARD AND GENERAL SCHEDULE FLORIDA
AIR NATIONAL GUARD TECHNICIANS, EXCLUDING ARMY AVIATION TECHNICIANS AT
CRAIG FIELD, JACKSONVILLE, FLORIDA, FLORIDA ARMY NATIONAL GUARD
TECHNICIANS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS,
AND SUPERVISORS AND GUARDS AS DEFINED BY EXECUTIVE ORDER 11491."
/2/ THE JOB TITLES OF THESE THREE EMPLOYEES, AS SET FORTH IN THEIR
JOB DESCRIPTIONS, ARE: AIRCRAFT ARMAMENT SYSTEMS MECHANIC WG 6652-13,
JOB NO. 45-79; HYDROMECHANICAL FUEL CONTROL REPAIRER, WG 8255-12, JOB
NO. 45-35; AND TURBINE POWERED SYSTEMS REPAIRER (FOREMAN), WG 8274-12,
JOB NO. 45-48. THESE JOB TITLES WILL BE USED HEREAFTER TO IDENTIFY
THESE POSITIONS.
/3/ THESE EMPLOYEES WORK FOR THE AEROSPACE SYSTEM SECTION OF THE
7 A/SLMR 887; P. 715; CASE NO. 71-3140(RO); AUGUST 30, 1977.
AUGUST 30, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF SUPPLEMENTAL DECISION AND ORDER
OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION (DCASR),
SAN FRANCISCO, CALIFORNIA,
DEFENSE CONTRACT ADMINISTRATION
SERVICES DISTRICT (DCASD),
SEATTLE, WASHINGTON
A/SLMR NO. 887
ON SEPTEMBER 30, 1975, THE ASSISTANT SECRETARY ISSUED HIS DECISION
AND DIRECTION OF ELECTION IN A/SLMR NO. 564, FINDING THAT THE PETITIONED
FOR UNIT IN THE SUBJECT CASE WAS APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION UNDER THE ORDER.
ON DECEMBER 30, 1976, THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL)
ISSUED ITS DECISION ON APPEAL IN FLRC NO. 76A-4, IN WHICH IT FOUND THAT
THE PETITIONED FOR UNIT IS NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER THE ORDER.
BASED ON THE COUNCIL'S HOLDING IN FLRC NO. 76A-4 AND THE RATIONALE
CONTAINED THEREIN, THE ASSISTANT SECRETARY ORDERED THAT THE
CERTIFICATION OF REPRESENTATIVE PREVIOUSLY ISSUED TO THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3204, AFL-CIO, BE REVOKED, AND
THAT THE PETITION IN THE SUBJECT CASE BE DISMISSED.
DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION (DCASR),
SAN FRANCISCO, CALIFORNIA,
DEFENSE CONTRACT ADMINISTRATION
SERVICES DISTRICT (DCASD),
SEATTLE, WASHINGTON /1/
ACTIVITY
CASE NO. 71-3140(RO),
A/SLMR NO. 564,
FLRC NO. 76A-4
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3204, AFL-CIO
PETITIONER
SUPPLEMENTAL DECISION AND ORDER
ON SEPTEMBER 30, 1975, THE ASSISTANT SECRETARY ISSUED HIS DECISION
AND DIRECTION OF ELECTION IN A/SLMR NO. 564, FINDING THAT THE PETITIONED
FOR UNIT WAS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER
THE ORDER. /2/ THEREAFTER, ON DECEMBER 30, 1976, THE FEDERAL LABOR
RELATIONS COUNCIL (COUNCIL) ISSUED ITS CONSOLIDATED DECISION ON APPEALS
INVOLVING, AMONG OTHERS, THE SUBJECT CASE. THE COUNCIL CONCLUDED, IN
ESSENCE, THAT THE PETITIONED FOR UNIT IN THE SUBJECT CASE WAS NOT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER.
/3/
BASED ON THE COUNCIL'S HOLDING IN THE INSTANT CASE AND THE RATIONALE
CONTAINED THEREIN, I SHALL ORDER THAT THE CERTIFICATION OF
REPRESENTATIVE PREVIOUSLY ISSUED TO THE PETITIONER BE REVOKED, AND THAT
THE SUBJECT PETITION BE DISMISSED.
ORDER
IT IS HEREBY ORDERED THAT THE CERTIFICATIONS OF REPRESENTATIVE ISSUED
IN CASE NO. 71-3140(RO) BE, AND THEY HEREBY ARE, REVOKED, AND THAT THE
PETITION IN CASE NO. 71-3140(RO) BE, AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
AUGUST 30, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ SUBSEQUENT TO THE ISSUANCE OF THE DECISION ON APPEAL IN FLRC NO.
76A-4, THE NAME OF THE AGENCY INVOLVED WAS CHANGED TO DEFENSE LOGISTICS
AGENCY.
/2/ I HAVE BEEN ADMINISTRATIVELY ADVISED THAT PURSUANT TO THE
DECISION AND DIRECTION OF ELECTION IN A/SLMR NO. 564, CERTIFICATIONS OF
REPRESENTATIVE WERE ISSUED TO THE PETITIONER INVOLVED HEREIN
ENCOMPASSING SEPARATE UNITS OF PROFESSIONAL AND NONPROFESSIONAL
EMPLOYEES.
/3/ FURTHER PROCESSING OF THE SUBJECT CASE WAS HELD IN ABEYANCE
PENDING THE COUNCIL'S DISPOSITION OF AN APPEAL IN DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR), CLEVELAND,
OHIO, ETC., FLRC NO. 76A-97 (JULY 20, 1977).
UNITED STATES FEDERAL LABOR RELATIONS COUNCIL WASHINGTON,
D.C. 20415
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
FLRC NO. 75A-14
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3540, AFL-CIO
DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT
ADMINISTRATION SERVICES REGION,
SAN FRANCISCO
A/SLMR NO. 559
FLRC NO. 75A-128
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2723, AFL-CIO
DEFENSE SUPPLY AGENCY, DEFENSE
CONTRACT ADMINISTRATION SERVICES
REGION (DCASR), SAN FRANCISCO,
DEFENSE CONTRACT ADMINISTRATION
SERVICES DISTRICT (DCASD), SEATTLE,
WASHINGTON
A/SLMR NO. 564
FLRC NO. 76A-4
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3204, AFL-CIO
DECISION ON APPEALS FROM ASSISTANT SECRETARY DECISIONS
BACKGROUND OF CASES
THESE APPEALS AROSE FROM THREE SEPARATE DECISIONS OF THE ASSISTANT
SECRETARY IN WHICH HE FOUND THAT THREE PROPOSED BARGAINING UNITS IN THE
DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION SERVICES REGION
(DCASR), SAN FRANCISCO, CALIFORNIA, WERE APPROPRIATE AND DIRECTED AN
ELECTION IN EACH. INASMUCH AS THE THREE APPEALS ARISE OUT OF THE SAME
BASIC CIRCUMSTANCES AND FACTUAL BACKGROUND, INVOLVE THE SAME AGENCY AND
NATIONAL LABOR ORGANIZATION, AND PRESENT THE SAME MAJOR POLICY ISSUE,
THE COUNCIL HERE CONSOLIDATED THEM FOR DECISION ON THE MERITS.
ALL THREE OF THE DECISIONS OF THE ASSISTANT SECRETARY GREW OUT OF
PETITIONS FILED BY LOCALS OF THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (AFGE) SEEKING TO REPRESENT UNITS OF EMPLOYEES OF THE SAN
FRANCISCO DCASR. THE SAN FRANCISCO DCASR IS ONE OF 11 REGIONS OF THE
DEFENSE SUPPLY AGENCY (DSA), ALL OF WHICH PROVIDE CONTRACT
ADMINISTRATION SERVICES AND SUPPORT FOR THE DEPARTMENT OF DEFENSE, AS
WELL AS OTHER FEDERAL AGENCIES. THE SAN FRANCISCO DCASR COVERS THE
STATES OF UTAH, MONTANA, IDAHO, WASHINGTON, OREGON, ALASKA, HAWAII;
MOST OF NEVADA; NORTHERN CALIFORNIA; AND THE MARIANA ISLANDS. IT
CONSISTS OF A HEADQUARTERS ORGANIZATION AND FIELD ACTIVITIES WHICH ARE
DIVIDED INTO TWO DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICTS
(DCASD'S), SEATTLE AND SALT LAKE CITY, AS WELL AS SIX DEFENSE CONTRACT
ADMINISTRATION SERVICES OFFICES (DCASO'S) LOCATED IN PORTLAND, OREGON,
AND AT FIVE CONTRACTORS' OFFICES IN THE SAN FRANCISCO BAY AREA AND A
HAWAII RESIDENCY OFFICE. THE FIELD ACTIVITIES PERFORM BASIC MISSION
FUNCTIONS OF THE REGION IN THEIR RESPECTIVE GEOGRAPHIC AREAS. WITH THE
EXCEPTION OF THE DCASO IN PORTLAND, OREGON, WHICH REPORTS THROUGH THE
DCASD IN SEATTLE, ALL DCASO'S AND DCASD'S WITHIN THE REGION REPORT
DIRECTLY TO DCASR HEADQUARTERS IN SAN FRANCISCO. APPROXIMATELY 1,250
CIVILIAN EMPLOYEES ARE EMPLOYED THROUGHOUT THE DCASR, SAN FRANCISCO,
WITH MOST EMPLOYEES LOCATED IN NORTHERN CALIFORNIA. ALL OF THE
EMPLOYEES OF THE REGION ARE SUBJECT TO UNIFORM PERSONNEL POLICIES AND
PRACTICES ESTABLISHED AT REGIONAL HEADQUARTERS. PRIOR TO THE FILING OF
THE SUBJECT REPRESENTATION PETITIONS, NONE OF THE EMPLOYEES OF THE DCASR
WERE IN UNITS OF EXCLUSIVE RECOGNITION.
FLRC NO. 75A-14 (A/SLMR NO. 461)
IN JUNE 1974, AFGE LOCAL 3540 SOUGHT AN ELECTION IN A DISTRICTWIDE
UNIT COMPOSED OF THE 77 ELIGIBLE PROFESSIONAL AND NONPROFESSIONAL
EMPLOYEES OF THE SALT LAKE CITY DCASD. THE SAN FRANCISCO DCASR
CONTENDED THAT THE CLAIMED UNIT WAS NOT APPROPRIATE BECAUSE IT EXCLUDED
EMPLOYEES WHO SHARE A COMMUNITY OF INTEREST WITH THE EMPLOYEES IN THE
UNIT SOUGHT AND, FURTHER, THAT THE UNIT SOUGHT WOULD NOT PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. THE DCASR
CONTENDED THAT THE ONLY APPROPRIATE UNIT WAS ONE COMPOSED OF ALL
ELIGIBLE EMPLOYEES OF THE DCASR, SAN FRANCISCO.
THE ASSISTANT SECRETARY, IN A DECISION DATED NOVEMBER 27, 1974,
DETERMINED THAT THE SALT LAKE CITY DCASD UNIT WAS APPROPRIATE FOR THE
PURPOSES OF EXCLUSIVE RECOGNITION UNDER THE ORDER. AFTER NOTING
PARTICULARLY THAT THE PETITIONED-FOR EMPLOYEES SHARE COMMON DISTRICTWIDE
SUPERVISION, PERFORM THEIR DUTIES WITHIN THE ASSIGNED GEOGRAPHICAL
LOCALITY OF THE DCASD, AND DO NOT INTERCHANGE OR HAVE JOB CONTACT WITH
OTHER EMPLOYEES OF THE REGION, AND THAT GENERALLY TRANSFERS TO OR FROM
THE DISTRICT OFFICE OCCUR ONLY IN SITUATIONS INVOLVING PROMOTIONS OR
REDUCTION-IN-FORCE PROCEDURES, 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
SAN FRANCISCO BAY REGION. THE ASSISTANT SECRETARY WENT ON TO ADD:
"FURTHER, BASED ON THE FOREGOING CONSIDERATIONS, I FIND THAT SUCH A UNIT
WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS." IN
MAKING THIS FINDING WITH RESPECT TO EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS, THE ASSISTANT SECRETARY REJECTED THE AGENCY'S
CONTENTIONS THAT CERTIFICATION OF A LESS THAN REGIONWIDE UNIT WOULD
LIMIT THE SCOPE OF NEGOTIATIONS SOLELY TO THOSE MATTERS WITHIN THE
DELEGATED DISCRETIONARY AUTHORITY OF THE COMMANDER OF THE DISTRICT
OFFICE, AND THUS WOULD NOT RESULT IN EFFECTIVE DEALINGS BETWEEN THE
PARTIES OR PROMOTE THE EFFICIENCY OF AGENCY OPERATIONS.
FLRC NO. 75A-128 (A/SLMR NO. 559)
IN NOVEMBER 1974, AFGE LOCAL 2723 SOUGHT AN ELECTION IN A UNIT
COMPOSED OF ALL ELIGIBLE NONPROFESSIONAL EMPLOYEES IN DCASR
HEADQUARTERS. DCASR OFFICIALS CONTENDED THAT THE CLAIMED UNIT WAS NOT
APPROPRIATE BECAUSE IT WOULD RESULT IN UNIT FRAGMENTATION AND WOULD NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. THEY
MAINTAINED THAT ONLY A SINGLE REGIONWIDE UNIT WOULD BE APPROPRIATE. AT
THE HEARING, THE UNION INDICATED A WILLINGNESS TO INCLUDE THE FIVE
DCASO'S, ALL OF WHICH ARE LOCATED IN THE SAN FRANCISCO BAY AREA, AND THE
HAWAII RESIDENCY OFFICE IN THE UNIT. THE ASSISTANT SECRETARY, ON
SEPTEMBER 16, 1975, FOUND THAT A UNIT ENCOMPASSING THE EMPLOYEES IN
DCASR HEADQUARTERS, THE FIVE DCASO'S IN THE SAN FRANCISCO BAY AREA, AND
THE HAWAII RESIDENCY OFFICE WAS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION IN THAT THE EMPLOYEES IN SUCH UNIT SHARED A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST WITH EACH OTHER, THAT SUCH A UNIT
WOULD PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS,
AND THAT THE AGENCY CONTENTIONS TO THE CONTRARY WERE "AT BEST,
SPECULATIVE AND CONJECTURAL."
MORE PARTICULARLY, WITH REGARD TO EFFICIENCY OF AGENCY OPERATIONS,
THE ASSISTANT SECRETARY OBSERVED THAT MORE THAN COST FACTORS SHOULD BE
INVOLVED IN MAKING SUCH A DETERMINATION, CITING AND QUOTING EXTENSIVELY
FROM THE COUNCIL'S NEGOTIABILITY DETERMINATION IN THE LITTLE ROCK CASE.
/1/ THE ASSISTANT SECRETARY FOUND IT:
(E)VIDENT THAT A DETERMINATION OF EFFICIENCY OF AGENCY OPERATIONS IS
DEPENDENT UPON A
COMPLEX OF FACTORS AND THAT . . . TANGIBLE AND INTANGIBLE BENEFITS TO
EMPLOYEES AND ACTIVITIES
RESULTING FROM EMPLOYEE REPRESENTATION BY A LABOR ORGANIZATION CAN
RESULT IN IMPROVED
EFFICIENCY OF OPERATIONS DESPITE INCREASED COST FACTORS. (FOOTNOTE
OMITTED.)
HE NOTED:
. . . THAT IN UNIT DETERMINATION PROCEEDINGS THE PARTIES ARE
OBLIGATED TO COME FORWARD, FOR
THE USE OF THE ASSISTANT SECRETARY, WILL 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.
HE FOUND THAT THE UNIT "COULD RESULT IN ACTUAL ECONOMIC SAVINGS AND
INCREASED PRODUCTIVITY DUE TO THE HOMOGENEITY OF ITS COMPOSITION."
NOTING 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," THE ASSISTANT
SECRETARY FOUND THAT "STANDING ALONE, SUCH SPECULATION AS TO WHAT MIGHT
BE HELPFUL OR DESIRABLE (WAS) INSUFFICIENT TO ESTABLISH THAT THE
PROPOSED UNIT IS INAPPROPRIATE WITHIN THE MEANING OF SECTION 10(B) OF
THE ORDER."
WITH REGARD TO EFFECTIVE DEALINGS, THE ASSISTANT SECRETARY, OBSERVING
THAT THE PRINCIPAL OR ULTIMATE AUTHORITY WITHIN THE REGION INVOLVED IN
THE NEGOTIATION AND APPROVAL OF NEGOTIATED AGREEMENTS AND IN THE
RESOLUTION OF GRIEVANCES AND OTHER PERSONNEL MATTERS IS LOCATED IN THE
DCASR HEADQUARTERS, CONCLUDED THAT THE UNIT FOUND APPROPRIATE WOULD
PROMOTE EFFECTIVE DEALINGS TO THE EXTENT THAT THE INDIVIDUALS MOST
CONCERNED WITH LABOR-MANAGEMENT RELATIONS, FISCAL MATTERS AND THE
DIRECTION OF OPERATIONS "ARE LOCATED ORGANIZATIONALLY WITH THE UNIT
FOUND APPROPRIATE." THE ASSISTANT SECRETARY WENT ON TO STATE, HOWEVER,
THAT, IN HIS 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." RELYING ON THE AMENDMENTS TO SECTION 11(A) OF THE ORDER IN
E.O. 11838, /2/ THE ASSISTANT SECRETARY STATED THAT "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." FURTHER, HE WENT ON TO SAY 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.
THE ASSISTANT SECRETARY CONCLUDED:
THUS, IN MY VIEW, THE ORDER, WHILE RECOGNIZING THE APPROPRIATENESS OF
BROADLY BASED UNITS
UNDER CERTAIN CIRCUMSTANCES, 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. (FOOTNOTE OMITTED.)
FLRC NO. 76A-4 (A/SLMR NO. 564)
IN OCTOBER 1974, AFGE LOCAL 3204 SOUGHT AN ELECTION IN A DISTRICTWIDE
UNIT OF ALL ELIGIBLE GENERAL SCHEDULE AND PROFESSIONAL EMPLOYEES IN THE
SEATTLE, WASHINGTON DCASD. THE PROPOSED UNIT INCLUDED, IN ADDITION TO
THE EMPLOYEES OF THE SEATTLE DISTRICT, EMPLOYEES OF THE PORTLAND, OREGON
DCASO WHICH, ORGANIZATIONALLY, REPORTS TO REGIONAL HEADQUARTERS THROUGH
SEATTLE. THE REGION CONTENDED THAT THE UNIT SOUGHT WAS NOT APPROPRIATE
BECAUSE, AMONG OTHER THINGS, IT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. IN THE ACTIVITY'S VIEW, ONLY A SINGLE
DCASR-WIDE UNIT WOULD BE APPROPRIATE.
THE ASSISTANT SECRETARY FOUND THE PETITIONED-FOR UNIT APPROPRIATE IN
SEPTEMBER 1975. IN DOING SO, HE DETERMINED THAT THE APPROXIMATELY 180
EMPLOYEES SOUGHT TO BE INCLUDED WITHIN THE PROPOSED UNIT OF THE SEATTLE
DCASD AND THE PORTLAND DCASO SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST SEPARATE AND DISTINCT FROM OTHER EMPLOYEES OF THE REGION. IN
DISAGREEMENT WITH THE CLAIMS OF REGIONAL OFFICIALS, THE ASSISTANT
SECRETARY DETERMINED THAT THE PROPOSED UNIT WOULD PROMOTE EFFECTIVE
DEALINGS AND THE EFFICIENCY OF AGENCY OPERATIONS. IN THIS REGARD, HE
AGAIN NOTED, AS IN HIS DECISION IN A/SLMR NO. 559 SUPRA, THAT A
DETERMINATION OF 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 WHICH CAN RESULT IN IMPROVED
EFFICIENCY OF AGENCY OPERATIONS DESPITE INCREASED COST FACTORS AND THAT
A CLAIMED UNIT MAY PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
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. HE WAS NOT PERSUADED BY THE REGION'S ARGUMENTS THAT THE
NEGOTIATING AUTHORITY OF THE DISTRICT COMMANDER WOULD BE EXTREMELY
LIMITED, NOTING CERTAIN AREAS OF RESPONSIBILITY THAT THE DISTRICT
COMMANDER DOES HAVE. THE ASSISTANT SECRETARY CONCLUDED:
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 WHERE LESS THAN
REGION-WIDE UNITS HAVE
BEEN RECOGNIZED OR CERTIFIED AND WHERE THERE CURRENTLY EXIST
NEGOTIATED AGREEMENTS, I FIND
THAT THE PETITIONED FOR DISTRICT-WIDE UNIT WILL PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS. (FOOTNOTE OMITTED.)
FOLLOWING EACH OF THE ASSISTANT SECRETARY'S DECISIONS IN THESE CASES,
SEPARATE ELECTIONS WERE CONDUCTED IN EACH OF THE THREE SEPARATE UNITS
WHICH HAD BEEN FOUND APPROPRIATE AND AFGE WAS CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE IN EACH UNIT. THEREAFTER, IN EACH CASE, DSA APPEALED THE
ASSISTANT SECRETARY'S DECISION TO THE COUNCIL. UPON CONSIDERATION OF
THE PETITIONS FOR REVIEW, THE COUNCIL DETERMINED THAT THE SAME MAJOR
POLICY ISSUE IS PRESENTED BY EACH OF THE DECISIONS OF THE ASSISTANT
SECRETARY, NAMELY: WHETHER THE ASSISTANT SECRETARY'S DECISION IS
CONSISTENT WITH AND PROMOTES THE PURPOSES AND POLICIES OF THE ORDER,
ESPECIALLY THOSE REFLECTED IN SECTION 10(B). NEITHER PARTY FILED A
BRIEF ON THE MERITS.
OPINION
SECTION 6(A)(1) OF THE ORDER ASSIGNS TO THE ASSISTANT SECRETARY THE
RESPONSIBILITY FOR DECIDING QUESTIONS AS TO UNITS APPROPRIATE FOR THE
PURPOSES OF EXCLUSIVE RECOGNITION. THE COUNCIL, PURSUANT TO SECTION
2411.18(A) OF ITS REGULATIONS, WILL SUSTAIN SUCH DECISIONS UNLESS THEY
ARE ARBITRARY AND CAPRICIOUS OR INCONSISTENT WITH THE PURPOSES OF THE
ORDER. IN THE OPINION OF THE COUNCIL, THE DECISION OF THE ASSISTANT
SECRETARY IN EACH OF THESE CASES IS INCONSISTENT WITH THE PURPOSES OF
THE ORDER, SPECIFICALLY THE LANGUAGE AND INTENT OF SECTION 10(B).
SECTION 10(B) PROVIDES, IN PERTINENT PART, THAT:
A UNIT MAY BE ESTABLISHED ON A PLANT OR INSTALLATION, CRAFT,
FUNCTIONAL, OR OTHER BASIS
WHICH WILL ENSURE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
AMONG THE EMPLOYEES CONCERNED
AND WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS.
THE COUNCIL ON SEVERAL OCCASIONS HAS CONSIDERED THE MEANING AND
APPLICATION OF SECTION 10(B) IN THE ESTABLISHMENT OF APPROPRIATE UNITS
FOR THE PURPOSES OF EXCLUSIVE RECOGNITION. IN PARTICULAR, THE COUNCIL
HAS ADDRESSED THE REQUIREMENT THAT ANY PROPOSED UNIT OF EXCLUSIVE
RECOGNITION MUST MEET ALL THREE APPROPRIATE UNIT CRITERIA PRESCRIBED IN
SECTION 10(B), THAT IS, A UNIT MUST (1) ENSURE A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST AMONG THE EMPLOYEES CONCERNED, (2) PROMOTE
EFFECTIVE DEALINGS, AND (3) PROMOTE EFFICIENCY OF AGENCY OPERATIONS.
IN THE REPORT ACCOMPANYING E.O. 11838, THE COUNCIL, IN DISCUSSING ITS
BELIEF "THAT THE POLICY OF PROMOTING MORE COMPREHENSIVE BARGAINING UNITS
AND HENCE OF REDUCING FRAGMENTATION IN THE BARGAINING UNIT STRUCTURE
WILL FOSTER THE DEVELOPMENT OF A SOUND FEDERAL LABOR-MANAGEMENT
RELATIONS PROGRAM," STATED:
WE FURTHER FEEL THAT THE ASSISTANT SECRETARY CAN DO MUCH TO FOSTER
THIS POLICY IN CARRYING
OUT HIS FUNCTIONS OF DECIDING OTHER REPRESENTATION QUESTIONS
INCLUDING THE APPROPRIATENESS OF
NEWLY SOUGHT UNITS. ACCORDINGLY, IN ALL REPRESENTATION QUESTIONS,
EQUAL WEIGHT MUST BE GIVEN
TO EACH OF THE THREE CRITERIA IN SECTION 10(B) OF THE ORDER. BY
DOING SO, THE RESULT SHOULD
BE BROADER, MORE COMPREHENSIVE BARGAINING UNITS. /3/
THUS, THE COUNCIL CONCLUDED THAT THE APPROPRIATE APPLICATION OF THE
THREE CRITERIA WILL FACILITATE THE REDUCTION OF FRAGMENTATION IN
BARGAINING UNIT STRUCTURE IN THE FEDERAL LABOR-MANAGEMENT RELATIONS
PROGRAM AND THEREBY PROMOTE THE POLICY OF CREATING MORE COMPREHENSIVE
UNITS.
IN ITS DECISION IN TULSA AFS, THE COUNCIL DISCUSSED AT LENGTH THE
OBLIGATIONS OF THE ASSISTANT SECRETARY IN APPLYING THE THREE 10(B)
CRITERIA. /4/ THE COUNCIL REVIEWED THE HISTORY OF THE DEVELOPMENT OF
EXCLUSIVE RECOGNITION OF APPROPRIATE UNITS IN THE FEDERAL
LABOR-MANAGEMENT RELATIONS PROGRAM AND CONCLUDED:
IT IS CLEAR THAT THE EXPRESS LANGUAGE OF SECTION 10(B) REQUIRES THAT
ANY PROPOSED UNIT OF
EXCLUSIVE RECOGNITION MUST SATISFY EACH OF THE THREE CRITERIA SET
FORTH THEREIN, AND THAT THE
ASSISTANT SECRETARY MUST AFFIRMATIVELY SO DETERMINE, BEFORE THAT UNIT
PROPERLY CAN BE FOUND TO
BE APPROPRIATE. THIS CONCLUSION IS AMPLY SUPPORTED BY THE PURPOSE OF
THE PROVISION, AS
EVIDENCED BY ITS "LEGISLATIVE HISTORY" . . . ESPECIALLY WHEREIN THE
CRITERION OF COMMUNITY OF
INTEREST OF THE EMPLOYEES INVOLVED WAS EXPLICITLY BALANCED WITH OTHER
CONSIDERATIONS IMPORTANT
TO MANAGEMENT AND PROTECTION OF THE PUBLIC INTEREST IN THE
PROMULGATION OF E.O. 11491 IN 1969,
I.E., THAT UNITS FOUND APPROPRIATE MUST ALSO PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS.
FURTHER, AFTER QUOTING THOSE PASSAGES OF THE COUNCIL'S REPORT TO THE
PRESIDENT WHICH LED TO THE ISSUANCE OF EXECUTIVE ORDER 11838 WHEREIN THE
THREE CRITERIA WERE DISCUSSED, THE COUNCIL STATED AS TO THE REQUIRED
FINDINGS UNDER SECTION 10(B) OF THE ORDER:
THUS, THE ASSISTANT SECRETARY MUST NOT ONLY AFFIRMATIVELY DETERMINE
THAT A UNIT WILL ENSURE
A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AMONG THE EMPLOYEES
CONCERNED AND WILL PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS, BUT MUST GIVE
EQUAL WEIGHT TO EACH OF
THE THREE CRITERIA BEFORE THE PARTICULAR UNIT CAN BE FOUND TO BE
APPROPRIATE.
IN TULSA AFS, THE COUNCIL ALSO DISCUSSED THE RESPONSIBILITY OF THE
ASSISTANT SECRETARY IN UNIT DETERMINATION PROCEEDINGS TO DEVELOP AND
CONSIDER EVIDENCE CONCERNING THE APPROPRIATE UNIT CRITERIA IN SECTION
10(B) OF THE ORDER. THE COUNCIL STRESSED THAT IT IS THE OBLIGATION OF
THE ASSISTANT SECRETARY TO "DEVELOP AS COMPLETE A RECORD AS POSSIBLE
WITH REGARD TO EACH OF THE THREE CRITERIA . . . AND . . . GIVE FULL AND
CAREFUL CONSIDERATION OF ALL RELEVANT EVIDENCE IN THE RECORD IN REACHING
HIS DECISION." IN THIS REGARD, THE COUNCIL NOTED THAT PARTIES TO A
REPRESENTATION PROCEEDING ARE RESPONSIBLE FOR PROVIDING THE ASSISTANT
SECRETARY WITH ALL INFORMATION RELEVANT TO THE APPROPRIATE UNIT CRITERIA
THAT IS WITHIN THEIR KNOWLEDGE AND POSSESSION, BUT EMPHASIZED THAT THE
ASSISTANT SECRETARY MUST ACTIVELY SOLICIT SUCH EVIDENCE AS NECESSARY TO
ENABLE HIM TO MAKE A FULLY-INFORMED JUDGMENT AS TO WHETHER A PARTICULAR
UNIT WILL SATISFY EACH OF THE THREE 10(B) CRITERIA. IN THIS REGARD, THE
COUNCIL STATED:
(T)HERE IS A NEED FOR A SHARPER DEGREE OF DEFINITION OF THE CRITERIA
OF EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS TO FACILITATE BOTH THE
DEVELOPMENT AND PRESENTATION OF
EVIDENCE PERTAINING TO THOSE CRITERIA BY AGENCIES AND LABOR
ORGANIZATIONS, AND THE QUALITATIVE
APPRAISAL OF SUCH EVIDENCE BY THE ASSISTANT SECRETARY IN APPROPRIATE
UNIT DETERMINATIONS. AS
HE HAS DONE WITH THE COMMUNITY OF INTEREST CRITERION, THEREFORE, THE
ASSISTANT SECRETARY
SHOULD DEVELOP SUBSIDIARY FACTORS OR INDICATORS WHICH WILL SERVE AS
GUIDELINES IN DETERMINING
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. IN THIS WAY,
EACH OF THE POLICY GOALS
TO BE ACHIEVED IN UNIT DETERMINATION WILL HAVE AN EQUAL DEGREE OF
PRECISION AND, HOPEFULLY,
WILL RECEIVE THE NECESSARY AND DESIRABLE EQUALITY OF EMPHASIS IN
REPRESENTATION PROCEEDINGS.
SUMMARIZING THE RESPONSIBILITIES OF THE ASSISTANT SECRETARY WHICH
FLOW FROM SECTION 10(B) OF THE ORDER: BEFORE THE ASSISTANT SECRETARY
MAY FIND THAT A PROPOSED UNIT IS APPROPRIATE FOR PURPOSES OF EXCLUSIVE
RECOGNITION UNDER THE ORDER, HE MUST MAKE AN AFFIRMATIVE DETERMINATION
THAT THE PROPOSED UNIT SATISFIES EQUALLY EACH OF THE THREE CRITERIA
CONTAINED IN SECTION 10(B). THAT IS, HE MUST CONSIDER EQUALLY THE
EVIDENCE GOING TO EACH OF THE THREE CRITERIA AND, AS REQUIRED BY SECTION
10(B), FIND APPROPRIATE ONLY UNITS WHICH NOT ONLY ENSURE A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST BUT ALSO PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS. IN MAKING THE AFFIRMATIVE
DETERMINATION THAT A PROPOSED BARGAINING UNIT SATISFIES EACH OF THE
THREE CRITERIA, THE ASSISTANT SECRETARY MUST FIRST DEVELOP AS COMPLETE A
RECORD AS POSSIBLE, SOLICITING EVIDENCE FROM THE PARTIES AS NECESSARY,
AND THEN GROUND HIS DECISION UPON A CAREFUL, THOROUGH ANALYSIS OF
SUBSIDIARY FACTORS OR EVIDENTIARY CONSIDERATIONS WHICH PROVIDE A SHARP
DEGREE OF DEFINITION AND PRECISION TO EACH OF THE THREE CRITERIA.
FINALLY, AND MOST IMPORTANTLY, THE ASSISTANT SECRETARY MUST MAKE THE
NECESSARY AFFIRMATIVE DETERMINATIONS THAT A UNIT CLEARLY, CONVINCINGLY
AND EQUALLY SATISFIES EACH OF THE 10(B) CRITERIA IN RECOGNITION OF AND
IN A MANNER FULLY CONSISTENT WITH THE PURPOSES OF THE ORDER, INCLUDING
THE DUAL OBJECTIVE OF PREVENTING FURTHER FRAGMENTATION OF BARGAINING
UNITS AS WELL AS REDUCING EXISTING FRAGMENTATION, THEREBY PROMOTING A
MORE COMPREHENSIVE BARGAINING UNIT STRUCTURE. WE TURN NOW TO THE
APPLICATION OF THESE PRINCIPLES TO THE THREE CASES BEFORE THE COUNCIL.
THEY WILL BE TREATED SERIATIM.
A/SLMR NO. 461
AS OUTLINED ABOVE, IN THIS CASE THE ASSISTANT SECRETARY FOUND THAT A
UNIT OF ONE GEOGRAPHIC ELEMENT OF THE SAN FRANCISCO DCASR, NAMELY THE
SALT LAKE CITY DCASD, WAS AN APPROPRIATE UNIT FOR PURPOSES OF EXCLUSIVE
RECOGNITION UNDER THE ORDER. IN SO FINDING, HE REVIEWED THE EVIDENCE
RELATING TO CERTAIN SUBSIDIARY FACTORS OR INDICATORS OF COMMUNITY OF
INTEREST AND BASED UPON THESE EVIDENTIARY CONSIDERATIONS FOUND THAT THE
EMPLOYEES IN THE PETITIONED-FOR UNIT SHARED A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM OTHER EMPLOYEES OF THE
SAN FRANCISCO REGION. ADDITIONALLY, AS REQUIRED, THE ASSISTANT
SECRETARY FOUND THAT SUCH A UNIT WILL PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. HOWEVER, THIS LATTER CONCLUSION WAS
"BASED ON THE FOREGOING CONSIDERATIONS," THAT IS, THE EVIDENTIARY
CONSIDERATIONS WHICH SUPPORTED A FINDING THAT THE EMPLOYEES HAD
COMMUNITY OF INTEREST, RATHER THAN ON ANY EVIDENCE DIRECTLY BEARING ON
THE PROMOTION OF EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
WHILE THE ASSISTANT SECRETARY MADE AN AFFIRMATIVE FINDING THAT THE
PROPOSED UNIT MET ALL OF THE APPROPRIATE UNIT CRITERIA OF SECTION 10(B),
WE MUST CONCLUDE THAT IN MAKING THAT FINDING HE DID NOT FULLY MEET HIS
OBLIGATIONS UNDER THE ORDER. IN THIS REGARD, AS WE HAVE INDICATED, IT
IS THE RESPONSIBILITY OF THE ASSISTANT SECRETARY TO DEVELOP AS COMPLETE
A RECORD AS POSSIBLE WITH REGARD TO EACH OF THE THREE CRITERIA,
SOLICITING EVIDENCE FROM THE PARTIES AS NECESSARY; TO GIVE FULL AND
CAREFUL CONSIDERATION TO ALL RELEVANT EVIDENCE IN THE RECORD; AND THEN
TO GROUND HIS DECISION UPON A CAREFUL, THOROUGH ANALYSIS OF EVIDENTIARY
CONSIDERATIONS OR FACTORS WHICH PROVIDE A SHARP DEGREE OF DEFINITION AND
PRECISION TO EACH OF THE THREE CRITERIA. WHERE THE ASSISTANT SECRETARY
FINDS A UNIT TO BE APPROPRIATE FOR PURPOSES OF EXCLUSIVE RECOGNITION, HE
MUST MAKE AN AFFIRMATIVE DETERMINATION THAT A UNIT EQUALLY SATISFIES
EACH OF THE 10(B) CRITERIA. FINALLY, AND MOST IMPORTANTLY, THE
ASSISTANT SECRETARY MUST DECIDE APPROPRIATE UNIT QUESTIONS CONSISTENT
WITH THE PURPOSES OF THE ORDER, INCLUDING THE POLICY OF PREVENTING AND
REDUCING FRAGMENTATION, THEREBY PROMOTING A MORE COMPREHENSIVE
BARGAINING UNIT STRUCTURE.
IN THIS CASE, WHILE THE ASSISTANT SECRETARY CLEARLY MET HIS
RESPONSIBILITIES IN DEVELOPMENT AND ANALYZING EVIDENCE PERTAINING TO THE
"COMMUNITY OF INTEREST" CRITERION AND IN MAKING AN AFFIRMATIVE FINDING
WITH RESPECT TO THAT CRITERION, WE CONCLUDE THAT HE FAILED TO MEET THESE
RESPONSIBILITIES WITH RESPECT TO THE CRITERIA OF "EFFECTIVE DEALINGS"
AND "EFFICIENCY OF AGENCY OPERATIONS." FIRST, A REVIEW OF THE RECORD
REVEALS THAT THE ASSISTANT SECRETARY FAILED TO MAKE AN INTENSIVE EFFORT
TO DEVELOP AS COMPLETE A RECORD AS POSSIBLE WITH REGARD TO THE CRITERIA
OF "EFFECTIVE DEALINGS" AND "EFFICIENCY OF AGENCY OPERATIONS,"
SOLICITING EVIDENCE FROM THE PARTIES AS NECESSARY. /5/ WHILE THE
TESTIMONY AND ARGUMENTS ADVANCED BY THE ACTIVITY AS TO WHY THE PROPOSED
DCASD UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS MAY NOT, IN THE ASSISTANT SECRETARY'S VIEW, HAVE PROVIDED HIM
WITH A SUFFICIENT BASIS ON WHICH TO MAKE A DETERMINATION, /6/ THE
DEVELOPMENT OF SUCH EVIDENCE DOES NOT STOP WITH THE PRESENTATION BY THE
PARTIES. ALTHOUGH, AS WE STATED IN TULSA AFS, THE PARTIES ARE
RESPONSIBLE FOR PROVIDING THE ASSISTANT SECRETARY WITH ALL RELEVANT
INFORMATION WITHIN THEIR KNOWLEDGE AND POSSESSION, WE EMPHASIZED IN THAT
DECISION THAT THE ASSISTANT SECRETARY, IN CARRYING OUT HIS
RESPONSIBILITY TO DECIDE APPROPRIATE UNIT QUESTIONS, MUST ACTIVELY
SOLICIT SUCH INFORMATION AND DEVELOP THE EVIDENCE NECESSARY TO ENABLE
HIM TO MAKE A FULLY-INFORMED JUDGMENT AS TO WHETHER THE PROPOSED UNIT
WILL SATISFY EACH OF THE THREE 10(B) CRITERIA. WE CONCLUDE THAT THE
ASSISTANT SECRETARY DID NOT MEET THAT RESPONSIBILITY IN A/SLMR NO. 461.
FURTHERMORE, AS TO THE CONTENTIONS AND SUPPORTING EVIDENCE WHICH WERE
PUT FORWARD BY THE ACTIVITY REGARDING THESE TWO CRITERIA, THE ASSISTANT
SECRETARY FAILED TO GIVE SUCH CONTENTIONS AND EVIDENCE FULL AND CAREFUL
CONSIDERATION. INDEED, HIS ONLY CONSIDERATION WAS IN A FOOTNOTE WHEREIN
HE REJECTED THE ACTIVITY'S CONTENTION THAT A LESS THAN REGIONWIDE UNIT
WOULD LIMIT THE SCOPE OF NEGOTIATIONS SOLELY TO THOSE MATTERS WITHIN THE
DELEGATED AUTHORITY OF THE COMMANDER OF THE DISTRICT OFFICE. /7/
SECOND, THE ASSISTANT SECRETARY'S DECISION WAS NOT BASED UPON A
CAREFUL, THOROUGH ANALYSIS OF EVIDENTIARY CONSIDERATIONS OR FACTORS
WHICH PROVIDE A SHARP DEGREE OF DEFINITION AND PRECISION TO THE
"EFFECTIVE DEALINGS" AND "EFFICIENCY OF AGENCY OPERATIONS" CRITERIA.
INDEED, THERE WAS NO DISCUSSION OF SUCH EVIDENTIARY CONSIDERATIONS OR
FACTORS. INSTEAD, THE TREATMENT OF THESE TWO CRITERIA AMOUNTED TO
LITTLE MORE THAN A CONCLUSIONARY STATEMENT BASED SOLELY UPON EVIDENTIARY
CONSIDERATIONS WHICH HAD BEEN RELIED UPON TO SUPPORT THE FINDING OF A
COMMUNITY OF INTEREST.
WHILE WE REALIZE THAT CERTAIN CONSIDERATIONS TRADITIONALLY DISCUSSED
IN THE CONTEXT OF COMMUNITY OF INTEREST CAN ALSO BE RELEVANT IN
ASCERTAINING WHETHER A PROPOSED UNIT WOULD PROMOTE EFFECTIVE DEALINGS OR
EFFICIENCY OF AGENCY OPERATIONS (E.G., SUPERVISORY HIERARCHY AND
UNIFORMITY OF PERSONNEL POLICIES), OTHER, QUITE DIFFERENT CONSIDERATIONS
ALSO APPLY. AS WE STATED IN TULSA AFS, /8/ THERE IS A NEED FOR A
SHARPER DEGREE OF DEFINITION TO THE CRITERIA OF EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS AND THE ASSISTANT SECRETARY SHOULD
DEVELOP SUBSIDIARY FACTORS OR INDICATORS WHICH WILL SERVE AS GUIDELINES
IN DETERMINING EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
RATHER THAN RELYING SOLELY ON THE "FOREGOING CONSIDERATIONS," THE
ASSISTANT SECRETARY WAS REQUIRED TO EXAMINE THE VERY KIND OF TESTIMONY
AND CONTENTIONS PUT FORWARD BY THE AGENCY (E.G., MORE EFFICIENT USE OF
NEGOTIATION RESOURCES DERIVED FROM SINGLE REGIONWIDE NEGOTIATIONS RATHER
THAN A MULTIPLICITY OF NEGOTIATIONS IN SEGMENTS OF THE REGION), AS WELL
AS THE WIDE RANGE OF OTHER CONSIDERATIONS RAISED BY THE FACTS OF THE
CASE. IN DEVELOPING SUCH SUBSIDIARY FACTORS OR EVIDENTIARY
CONSIDERATIONS, WHICH MORE PRECISELY DEFINE WHAT IS MEANT BY PROMOTING
EFFECTIVE DEALINGS, THE ASSISTANT SECRETARY MIGHT WELL CONSIDER IN THE
CIRCUMSTANCES OF THIS CASE SUCH MATTERS AS THE LOCUS AND SCOPE OF
AUTHORITY OF THE RESPONSIBLE PERSONNEL OFFICE; THE LIMITATIONS ON THE
NEGOTIATION OF MATTERS OF CRITICAL CONCERN TO EMPLOYEES BECAUSE THE
CONCERNS OF SALT LAKE CITY DCASO EMPLOYEES MAY BE INSEPARABLE FROM THOSE
OF OTHER EMPLOYEES IN THE REGION; THE LIKELIHOOD THAT PEOPLE WITH
GREATER EXPERTISE IN NEGOTIATIONS WILL BE AVAILABLE IN A LARGER UNIT;
THE ACTUAL EXPERIENCE OF THIS AGENCY IN OTHER BARGAINING UNITS; AND THE
LEVEL AT WHICH LABOR RELATIONS POLICY IS SET IN THE AGENCY AND THE
EFFECTUATION OF AGENCY TRAINING IN THE IMPLEMENTATION OF A NUMBER OF
NEGOTIATED AGREEMENTS AND GRIEVANCE PROCEDURES COVERING EMPLOYEES
PERFORMING ESSENTIALLY THE SAME DUTIES. AS TO "EFFICIENCY OF AGENCY
OPERATIONS" AMONG THOSE FACTORS WHICH SHOULD BE CONSIDERED WOULD BE THE
BENEFITS TO BE DERIVED FROM A UNIT STRUCTURE WHICH BEARS SOME RATIONAL
RELATIONSHIP TO THE OPERATIONAL AND ORGANIZATIONAL STRUCTURE OF THE
AGENCY. THIS IS CERTAINLY NOT TO SAY THAT SECTION 10(B) REQUIRES THAT
EACH BARGAINING UNIT ALWAYS BE COEXTENSIVE WITH THE AGENCY'S VIEW OF HOW
IT CAN BEST ORGANIZE TO CARRY OUT ITS MISSION, BUT THE RELATIONSHIP
BETWEEN THE PROPOSED BARGAINING UNIT AND THE OPERATIONAL AND
ORGANIZATIONAL STRUCTURE OF THE AGENCY SHOULD BE GIVEN SUBSTANTIAL
WEIGHT IN ASCERTAINING WHETHER THE UNIT WILL PROMOTE EFFICIENCY OF
AGENCY OPERATIONS. IN THE INSTANT CASE, FOR EXAMPLE, WHILE THE
ASSISTANT SECRETARY RELIED IN PART ON THE FACT THAT THE SALT LAKE CITY
DCASD EMPLOYEES SHARE DISTRICTWIDE SUPERVISION, HE APPEARS TO HAVE GIVEN
NO WEIGHT TO THE FACT THAT THOSE EMPLOYEES SHARE A COMMON SUPERVISORY
STRUCTURE WITH ALL EMPLOYEES IN THE REGION AND ENJOY A COMMONALITY OF
MISSION, PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING
CONDITIONS WITH ALL EMPLOYEES OF THE REGION.
THIRD, IN SIMPLY CONCLUDING THAT THE PROPOSED UNIT WILL PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF OPERATIONS BASED SOLELY UPON
EVIDENTIARY CONSIDERATIONS WHICH HAD BEEN RELIED UPON TO SUPPORT THE
FINDING OF A COMMUNITY OF INTEREST, THE ASSISTANT SECRETARY FAILED TO
GIVE EQUAL WEIGHT TO ALL THREE CRITERIA.
FINALLY, THERE IS THE REQUIREMENT THAT THE ASSISTANT SECRETARY DECIDE
APPROPRIATE UNIT QUESTIONS CONSISTENT WITH THE POLICY OF THE ORDER OF
PREVENTING AND REDUCING FRAGMENTATION IN THE BARGAINING UNIT STRUCTURE
OF THE FEDERAL LABOR-MANAGEMENT RELATIONS PROGRAM. THE ASSISTANT
SECRETARY'S DECISION FINDING APPROPRIATE A UNIT LIMITED TO THE SALT LAKE
CITY DCASD IS CLEARLY CONTRARY TO THAT POLICY IN THAT HIS DECISION TENDS
TO FOSTER AND PROMOTE FRAGMENTATION. THE SAN FRANCISCO DCASR IS A
SINGLE ORGANIZATIONAL ELEMENT OF THE AGENCY WITH A CHAIN OF COMMAND
HEADED BY THE REGIONAL COMMANDER, RUNNING DOWN THROUGH ALL OF THE
COMPONENT ELEMENTS. WITH THE EXCEPTION OF THE DCASO IN PORTLAND WHICH
REPORTS THROUGH THE DCASD IN SEATTLE, ALL ELEMENTS OF THE REGION REPORT
DIRECTLY TO DCASR HEADQUARTERS. ALL EMPLOYEES OF THE REGION PERFORM
THEIR DUTIES PURSUANT TO POLICIES AND PROCEDURES ESTABLISHED BY THE
REGIONAL HEADQUARTERS STAFF, AND THE EMPLOYEES WITHIN THE REGION ARE
SUBJECT TO UNIFORM PERSONNEL POLICIES AND JOB BENEFITS. THE DCASR'S
CIVILIAN PERSONNEL OFFICE, LOCATED AT HEADQUARTERS, HAS THE
RESPONSIBILITY FOR SERVICING ALL COMPONENTS WITHIN THE REGION. THE
REGION ENCOMPASSES AN ORGANIZATIONAL STRUCTURE OF AN AGENCY WHICH IS
FUNCTIONALLY INTEGRATED. IT HAS BEEN ESTABLISHED IN THIS MANNER TO
ACCOMPLISH ITS MISSION. ITS EMPLOYEES THUS SHARE A COMMONALITY OF
MISSION, ORGANIZATION AND PERSONNEL POLICIES AND PRACTICES AND MATTERS
AFFECTING WORKING CONDITIONS.
THERE IS NO QUESTION THAT IF THE UNION SOUGHT RECOGNITION IN A
REGIONWIDE UNIT, IT WOULD MEET ALL OF THE SECTION 10(B) CRITERIA AND,
MORE IMPORTANTLY, WOULD BE CONSISTENT WITH THE ORDER'S POLICY OF
PROMOTING A MORE COMPREHENSIVE BARGAINING UNIT STRUCTURE. AGAINST THIS
BACKDROP, THE AFGE PETITIONED FOR A SINGLE PORTION OF THE ORGANIZATIONAL
AND FUNCTIONAL WHOLE, THE SALT LAKE CITY DCASD, A UNIT OF APPROXIMATELY
77 EMPLOYEES OUT OF A TOTAL OF APPROXIMATELY 1,250 ELIGIBLE EMPLOYEES IN
THE REGION. IN CONCLUDING THAT THESE EMPLOYEES SHARED A COMMUNITY OF
INTEREST WITH EACH OTHER, THE ASSISTANT SECRETARY RELIED UPON THOSE
FACTORS WHICH, IN HIS VIEW, REFLECTED SOME DEGREE OF SEPARATION BETWEEN
THESE EMPLOYEES AND THE REMAINING EMPLOYEES IN THE DCASR. IN DOING SO,
HE FAILED TO GIVE PROPER RECOGNITION TO THE THE SINGLE ORGANIZATIONAL
STRUCTURE OF THE REGION, ITS CHAIN OF COMMAND AND AUTHORITY, THE UNIFORM
PERSONNEL POLICIES AND PRACTICES WITHIN THE DCASR, AND THE EXISTENCE OF
A SINGLE CIVILIAN PERSONNEL OFFICE WITHIN THE DCASR. AS A RESULT, THE
UNIT STRUCTURE WHICH HIS DECISION PROMOTES WITHIN THE SAN FRANCISCO
DCASR RESULTS IN ARTIFICIAL DISTINCTIONS BETWEEN GROUPS OF EMPLOYEES
WHOSE MISSION AND FUNCTIONS, SUPERVISORY STRUCTURE AND CONDITIONS OF
EMPLOYMENT ARE IDENTICAL. MOREOVER, FINDING SUCH A UNIT APPROPRIATE
LEFT THE REMAINDER OF THE REGION FOR FURTHER PIECEMEAL ORGANIZING
EFFORTS, THEREBY RESULTING IN A FRAGMENTED BARGAINING UNIT STRUCTURE, AS
ACTUALLY SUBSEQUENTLY OCCURRED HEREIN.
IN SUMMARY, IN THE CIRCUMSTANCES OF THIS CASE AS REFLECTED IN THE
RECORD BEFORE US, EQUAL APPLICATION OF THE THREE CRITERIA IN SECTION
10(B) AND THE RESULTING CONSISTENCY WITH THE PURPOSES OF THE ORDER WOULD
DICTATE A FINDING THAT A UNIT LIMITED TO THE SALT LAKE CITY DCASD IS NOT
AN APPROPRIATE UNIT FOR PURPOSES OF EXCLUSIVE RECOGNITION UNDER THE
ORDER. /9/
A/SLMR NO. 559
THE ASSISTANT SECRETARY, AS OUTLINED ABOVE, IN THIS CASE FOUND
APPROPRIATE A UNIT COMPOSED OF THE EMPLOYEES IN DCASR HEADQUARTERS AND
THE FIVE DCASO'S, ALL IN THE SAN FRANCISCO BAY AREA, ALONG WITH THE
HAWAII RESIDENCY OFFICE. AFTER REVIEWING AT LENGTH THE ORGANIZATIONAL
AND WORK ENVIRONMENT OF THE REGION AND ITS COMPONENT PARTS, HE FOUND
THAT THERE WAS A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AMONG THE
EMPLOYEES IN THE UNIT FOUND APPROPRIATE, NOTING SPECIFICALLY THAT SUCH
EMPLOYEES SHARE A COMMON MISSION AND ARE COVERED BY THE SAME PERSONNEL
AND LABOR RELATIONS POLICIES; THAT THERE ARE SIMILAR JOB
CLASSIFICATIONS IN EACH OF THE COMPONENTS WITHIN THE HEADQUARTERS, THE
FIVE DCASO'S AND THE HAWAII RESIDENCY OFFICE; THAT THERE HAVE BEEN
REASSIGNMENTS TO AND FROM THE REGIONAL HEADQUARTERS AND THE DCASO'S;
AND THAT THERE IS EMPLOYEE CONTACT BETWEEN HEADQUARTERS AND THE DCASO'S.
WHILE THE ASSISTANT SECRETARY AGAIN MADE NO AFFIRMATIVE FINDING THAT
THE PROPOSED UNIT MET ALL OF THE APPROPRIATE UNIT CRITERIA OF SECTION
10(B), WE MUST CONCLUDE THAT IN MAKING THAT FINDING HE DID NOT FULLY
MEET THOSE OBLIGATIONS, OUTLINED PREVIOUSLY HEREIN, WHICH THE ORDER
IMPOSES UPON HIM. IN THIS CASE, WHILE THE ASSISTANT SECRETARY MET HIS
RESPONSIBILITIES IN DEVELOPING AND ANALYZING EVIDENCE PERTAINING TO THE
"COMMUNITY OF INTEREST" CRITERIA AND IN MAKING AN AFFIRMATIVE FINDING
WITH RESPECT TO THAT CRITERION, /10/ WE CONCLUDE THAT HE FAILED TO MEET
THOSE RESPONSIBILITIES WITH RESPECT TO THE CRITERIA OF "EFFECTIVE
DEALINGS" AND EFFICIENCY OF AGENCY OPERATIONS." FIRST, A REVIEW OF
THE RECORD REVEALS THAT THE ASSISTANT SECRETARY FAILED TO MAKE AN
AFFIRMATIVE EFFORT TO DEVELOP AS COMPLETE A RECORD AS POSSIBLE WITH
REGARD TO THE CRITERIA OF "EFFECTIVE DEALINGS" AND "EFFICIENCY OF AGENCY
OPERATIONS." /11/ FURTHERMORE, AS TO THE CONTENTIONS AND SUPPORTING
EVIDENCE WHICH WERE PUT FORWARD BY THE ACTIVITY REGARDING THESE TWO
CRITERIA, THE ASSISTANT SECRETARY FAILED TO GIVE SUCH TESTIMONY
APPROPRIATE AND ADEQUATE CONSIDERATION.
AS TO WHETHER THE UNIT SOUGHT IN A/SLMR NO. 559 WOULD PROMOTE
EFFICIENCY OF AGENCY OPERATIONS, THE ASSISTANT SECRETARY, RELYING ON
COUNCIL NEGOTIABILITY DECISIONS /12/ ON THE MEANING OF SECTION 12(B)(4),
/13/ CONCLUDED THAT MORE THAN COST FACTORS SHOULD BE INVOLVED IN MAKING
SUCH DETERMINATIONS. AS PREVIOUSLY INDICATED, HE STATED:
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. (FOOTNOTE OMITTED.)
BASED ON THESE CONSIDERATIONS, THE ASSISTANT SECRETARY CONCLUDED THAT
THE PROPOSED UNIT WOULD PROMOTE EFFICIENCY OF AGENCY OPERATIONS,
STRESSING THAT THE UNIT WOULD ENCOMPASS THE EMPLOYEES WITHIN THE SAME
COMMUTING AREA AND WOULD INCLUDE THE HAWAII RESIDENCY OFFICE WHICH
OTHERWISE MIGHT BE FRAGMENTED. /14/ THE ASSISTANT SECRETARY CONCLUDED
THAT THE ESTABLISHMENT OF SUCH A UNIT "COULD RESULT" IN ACTUAL ECONOMIC
SAVINGS AND INCREASED PRODUCTIVITY DUE TO THE HOMOGENEITY OF ITS
COMPOSITION.
WHILE THE ASSISTANT SECRETARY REACHED A CONCLUSION AS TO WHETHER THE
PROPOSED UNIT WOULD PROMOTE THE EFFICIENCY OF AGENCY OPERATIONS, IN OUR
VIEW, HE FAILED PROPERLY TO CONSIDER THE RELEVANT TESTIMONY AND
ARGUMENTS ADVANCED BY THE AGENCY AND, IN EFFECT, THEREBY FAILED TO GIVE
THE REQUIRED EQUAL WEIGHT TO THIS CRITERION. AT THE OUTSET, THE
ASSISTANT SECRETARY FOUND THAT THE AGENCY'S VIEWS AS TO BOTH THIS
CRITERION AND THE CRITERION OF PROMOTING EFFECTIVE DEALINGS TO BE "AT
MOST, SPECULATIVE AND CONJECTURAL." SUCH A REJECTION OF THE AGENCY'S
VIEWS WAS INAPPROPRIATE AND A MISCONCEPTION OF THE NATURE OF THESE
CRITERIA. WE BELIEVE THAT INHERENT IN DETERMINING WHETHER OR NOT A
PROPOSED UNIT WILL PROMOTE THE EFFICIENCY OF AGENCY OPERATIONS IS THE
NEED TO ANTICIPATE THE IMPACT OF A GIVEN UNIT STRUCTURE ON THE AGENCY'S
OPERATIONS. JUST AS THE ASSISTANT SECRETARY CONSIDERED ECONOMIC SAVINGS
AND INCREASED PRODUCTIVITY WHICH "COULD RESULT," THE ASSISTANT SECRETARY
MUST ALSO CONSIDER THE COSTS AND INEFFICIENT USE OF RESOURCES THAT, IN
MANAGEMENT'S OPINION, "COULD RESULT" FROM SUCH A UNIT STRUCTURE. THE
SPECULATIVE AND CONJECTURAL NATURE OF A CONTENTION, IN THESE
CIRCUMSTANCES, DOES NOT IN AND OF ITSELF RENDER THE CONTENTION WITHOUT
MERIT.
AS TO THE SPECIFICS OF THE AGENCY'S CONTENTIONS, THE ASSISTANT
SECRETARY STATED:
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 . . . 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, 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. (FOOTNOTE OMITTED.)
IN OUR VIEW, RATHER THAN BEING REJECTED, IN PART, AS "SPECULATIVE,"
THE CONTENTIONS OF THE AGENCY WERE VALID CONSIDERATIONS TO BE WEIGHED IN
DETERMINING WHETHER THE PROPOSED UNIT WOULD PROMOTE EFFICIENCY OF AGENCY
OPERATIONS. AS WE HAVE INDICATED, A POLICY OF THE ORDER IS THE
PROMOTION OF MORE COMPREHENSIVE BARGAINING UNITS. HENCE, THE ACTIVITY'S
CONTENTION THAT A REGIONWIDE UNIT OF EMPLOYEES PERFORMING THE SAME JOBS
IN AN ORGANIZATION WITH THE SAME MISSION AND SUBJECT TO THE SAME
PERSONNEL POLICIES AND SUPERVISION WOULD DO MORE TO PROMOTE EFFICIENCY
OF AGENCY OPERATIONS WAS CONSISTENT WITH THE PURPOSES OF THE ORDER.
SIMILARLY, WHILE NOT DISPOSITIVE, THE EFFICIENT USE OF AGENCY
LABOR-MANAGEMENT RELATIONS AND FINANCIAL RESOURCES IS A VALID FACTOR IN
DETERMINING EFFICIENCY OF AGENCY OPERATIONS.
WE DO NOT DISAGREE WITH EITHER THE ASSISTANT SECRETARY'S CONCLUSION
THAT MORE THAN COST FACTORS ARE INVOLVED IN A DETERMINATION OF THE
PROMOTION OF EFFICIENCY OF AGENCY OPERATIONS, OR HIS CONCLUSION THAT THE
BENEFITS RESULTING FROM EMPLOYEE REPRESENTATION BY A LABOR ORGANIZATION
CAN RESULT IN IMPROVED EFFICIENCY OF AGENCY OPERATIONS. HOWEVER, THE
ACCORDING OF EQUAL WEIGHT TO THE EFFICIENCY OF AGENCY OPERATIONS
CRITERIA REQUIRES CAREFUL CONSIDERATION OF THE AGENCY'S REASONED VIEW OF
THE IMPACT OF THE PROPOSED UNIT ON THE EFFICIENCY OF ITS OPERATIONS.
/15/
IN FINDING THAT THE ALTERNATIVE UNIT SOUGHT WOULD PROMOTE EFFECTIVE
DEALINGS, THE ASSISTANT SECRETARY NOTED THAT THE UNIT WOULD PROMOTE
EFFECTIVE DEALINGS TO THE EXTENT THAT THE INDIVIDUALS MOST CONCERNED
WITH LABOR-MANAGEMENT RELATIONS, FISCAL MATTERS AND THE DIRECTION OF
OPERATIONS ARE LOCATED ORGANIZATIONALLY WITHIN THE UNIT FOUND
APPROPRIATE. THEREAFTER, RELYING ON THE AMENDMENTS TO SECTION 11(A) OF
THE ORDER IN E.O. 11838, /16/ THE ASSISTANT SECRETARY STATED:
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 OF 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.
THE ASSISTANT SECRETARY'S RELIANCE ON THE RECENT AMENDMENTS TO
SECTION 11(A) TO SUPPORT HIS FINDING THAT THE UNIT WOULD PROMOTE
EFFECTIVE DEALINGS IS IN ERROR. AS STATED ABOVE IN FOOTNOTE 7, THE
COUNCIL, IN ITS DECISION IN DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT
ADMINISTRATION SERVICES REGION (DCASR), CLEVELAND, OHIO, DEFENSE
CONTRACT ADMINISTRATION SERVICES OFFICES (DCASO'S), AKRON, OHIO, A/SLMR
NO. 372, FLRC NO. 74A-41 (AUG. 13, 1975), REPORT NO. 80, EMPHASIZED:
(A)S INDICATED IN SECTION V.1. OF THE REPORT ACCOMPANYING E.O. 11838,
THE CHANGES IN
SECTION 11(A) OF THE ORDER WERE INTENDED TO "COMPLEMENT" THE
RECOMMENDATIONS OF THE COUNCIL
RELATING TO THE CONSOLIDATION OF BARGAINING UNITS. THE PURPOSE OF
THOSE RECOMMENDATIONS
(WHICH WERE ADOPTED BY THE PRESIDENT) WAS PRINCIPALLY TO REDUCE THE
UNIT FRAGMENTATION THAT
HAD PREVIOUSLY DEVELOPED AND TO ENCOURAGE THE CREATION OF MORE
COMPREHENSIVE BARGAINING UNITS
IN THE INTEREST OF THE ENTIRE PROGRAM. (FOOTNOTE OMITTED.) /17/
WHILE THE CHANGES IN SECTION 11(A) WERE INTENDED TO EXPAND THE SCOPE
OF BARGAINING BY ELIMINATING UNNECESSARY CONSTRUCTIONS ON MEANINGFUL
NEGOTIATIONS WHICH HAD BEEN IMPOSED BY HIGHER LEVEL AGENCY REGULATIONS
NOT CRITICAL TO EFFECTIVE AGENCY MANAGEMENT OR THE PUBLIC INTEREST, THE
CHANGES IN SECTION 11(A) WERE ALSO INTENDED, AS STATED IN FLRC NO.
74A-41, TO COMPLEMENT THE RECOMMENDATIONS OF THE COUNCIL RELATING TO
REDUCTION OF UNIT FRAGMENTATION, WHICH REDUCTION WOULD ALSO SERVE TO
EXPAND THE SCOPE OF BARGAINING. THE ASSISTANT SECRETARY'S RELIANCE ON
THE 11(A) CHANGES TO SUPPORT A FINDING OF A LESS COMPREHENSIVE UNIT IS
THEREFORE TOTALLY INAPPROPRIATE. WHILE THE CHANGES TO SECTION 11(A)
WERE INTENDED TO LESSEN THE IMPACT OF CERTAIN AGENCY REGULATIONS UPON
THE SCOPE OF BARGAINING, CONTRARY TO THE CONCLUSIONS OF THE ASSISTANT
SECRETARY, THEY WERE NOT INTENDED TO REFLECT A POLICY OF ENCOURAGING THE
ESTABLISHMENT OF BARGAINING UNITS AT LOWER ORGANIZATIONAL LEVELS WITHIN
AN AGENCY.
WHILE IT IS TRUE THAT UNITS MAY PROMOTE EFFECTIVE DEALINGS AND BE
APPROPRIATE UNDER SECTION 10(B) EVEN IF ESTABLISHED AT LOWER AGENCY
ORGANIZATIONAL LEVELS, IN OUR VIEW IT IS CLEAR THAT, GENERALLY,
EFFECTIVE DEALINGS CAN BE BETTER ACHIEVED IN MORE COMPREHENSIVE UNITS.
AS WE HAVE INDICATED, NEGOTIATIONS COVERING MORE COMPREHENSIVE UNITS
PERMIT THE PARTIES TO ADDRESS A WIDER RANGE OF MATTERS OF CRITICAL
CONCERN TO GREATER NUMBERS OF EMPLOYEES. FOR EXAMPLE, EMPLOYEES OF THE
ENTIRE REGION HEREIN WOULD HAVE IDENTICAL CONCERNS AS TO SUCH MATTERS AS
MERIT STAFFING PROCEDURES, AREAS OF CONSIDERATION, REDUCTION-IN-FORCE
PROCEDURES, AND COMPETITIVE AREAS. MOREOVER, NEGOTIATIONS IN LESS
FRAGMENTED BARGAINING UNIT STRUCTURES ESTABLISHED AT HIGHER
ORGANIZATIONAL LEVELS PERMIT UNIONS AND AGENCIES TO ALLOCATE THEIR
MANPOWER RESOURCES AND SEND TO THE BARGAINING TABLE MORE EXPERIENCED AND
SKILLED NEGOTIATORS WHO SHOULD DO A MORE EFFICIENT JOB OF REACHING A
SATISFACTORY AGREEMENT.
THE INSTANT DECISION OF THE ASSISTANT SECRETARY CLEARLY REFLECTS A
DESIRE THAT NEGOTIATIONS BE CONDUCTED AT THE LOWEST ORGANIZATIONAL
LEVELS POSSIBLE AND, HENCE, AS CLOSE AS POSSIBLE TO THE PARTICULAR
EMPLOYEES WHO WILL BE AFFECTED BY THE OUTCOME OF THE NEGOTIATIONS;
HOWEVER, SUCH A DESIRE CANNOT BE USED AS A RATIONALE FOR CREATING UNITS
IN A MANNER INCONSISTENT WITH THE PURPOSES OF THE ORDER. SUCH
REASONING, CARRIED TO AN EXTREME AS HERE, RESULTS IN THE FRAGMENTATION
OF UNITS CONTRARY TO THE POLICIES SOUGHT TO BE SERVED BY THE ORDER.
MOREOVER, WE DO NOT AGREE THAT THE RESOLUTION OF LOCAL CONCERNS IS
SACRIFICED BY THE CREATION OF MORE COMPREHENSIVE UNITS. TO THE EXTENT
THAT THERE MAY BE CONCERNS UNIQUE TO SOME EMPLOYEES WHICH ARE NOT SHARED
BY AN ENTIRE BROADER UNIT, THERE ARE OBVIOUS, WELL-RECOGNIZED WAYS THAT
THESE CONCERNS MAY BE ADDRESSED WITHIN THE PARAMETERS OF THE BARGAINING
RELATIONSHIP. AND WHILE A UNIT AT A LOWER ORGANIZATIONAL LEVEL MAY
PROVIDE A TEMPORARY VEHICLE TO ADDRESS CERTAIN LOCALIZED PROBLEMS, IN
THE LONG RUN, UNITS BROADER IN SCOPE WILL FACILITATE CONSIDERATIONS AND
RESOLUTION OF A GREATER RANGE OF CONCERNS COMMON TO EMPLOYEES AND WILL
BETTER SERVE THE INTERESTS OF BOTH THE EMPLOYEES AND THE AGENCIES. IT
WAS TO ACHIEVE THIS END THAT THE POLICIES OF THE ORDER WERE ADOPTED.
THUS, THE ASSISTANT SECRETARY'S CONTRARY UNIT DETERMINATION WAS
INCONSISTENT WITH THESE PURPOSES OF THE ORDER.
AS PREVIOUSLY STATED WITH RESPECT TO A/SLMR NO. 461, THE ASSISTANT
SECRETARY MUST DECIDE APPROPRIATE UNIT QUESTIONS CONSONANT WITH THE
POLICY OF THE ORDER OF PREVENTING AND REDUCING FRAGMENTATION IN THE
BARGAINING UNIT STRUCTURE OF THE FEDERAL LABOR-MANAGEMENT RELATIONS
PROGRAM. IN FINDING APPROPRIATE THE ALTERNATIVE UNIT SOUGHT IN THIS
CASE, THE ASSISTANT SECRETARY'S DECISION PLAINLY CONTRAVENES THAT POLICY
SINCE HIS DECISION TENDS TO FOSTER AND PROMOTE FRAGMENTATION. ON THE
OTHER HAND, FOR THE REASONS PREVIOUSLY DETAILED ON PAGE 14 ABOVE, THERE
IS NO QUESTION THAT A REGIONWIDE UNIT, IF ALONE SOUGHT, WOULD MEET ALL
OF THE SECTION 10(B) CRITERIA.
WHILE THE EMPLOYEES IN THE SAN FRANCISCO BAY AREA MAY HAVE, AS
DISCUSSED BY THE ASSISTANT SECRETARY, A COMMUNITY OF INTEREST WITH EACH
OTHER AND POSSIBLE SOME DEGREE OF SEPARATION FROM OTHER ELEMENTS BECAUSE
OF SEPARATE LOCAL SUPERVISION AND GEOGRAPHIC DISPERSION, THE
PETITIONED-FOR UNIT WOULD BE INCONSISTENT WITH THE SINGLE ORGANIZATIONAL
STRUCTURE OF THE REGION, ITS CHAIN OF COMMAND AND AUTHORITY, THE UNIFORM
PERSONNEL POLICIES AND PRACTICES WITHIN THE DCASR, AND THE EXISTENCE OF
A SINGLE CIVILIAN PERSONNEL OFFICE. THE UNIT STRUCTURE, WHICH HIS
DECISION PROMOTES WITHIN THE SAN FRANCISCO DCASR, RESULTS IN ARTIFICIAL
DISTINCTIONS BETWEEN EMPLOYEES WHOSE MISSION AND FUNCTIONS, SUPERVISORY
STRUCTURE AND CONDITIONS OF EMPLOYMENT ARE IDENTICAL. FURTHER, AS NOTED
WITH REGARD TO A/SLMR NO. 461, THERE IS NO QUESTION THAT IF THE UNION
SOUGHT RECOGNITION IN A REGIONWIDE UNIT, IT WOULD MEET ALL OF THE
SECTION 10(B) CRITERIA AND, MORE IMPORTANTLY, WOULD BE CONSISTENT WITH
THE ORDER'S POLICY OF PROMOTING A MORE COMPREHENSIVE BARGAINING UNIT
STRUCTURE. MOREOVER, FINDING SUCH A UNIT APPROPRIATE LEFT THE REMAINDER
OF THE REGION FOR FURTHER PIECEMEAL ORGANIZING EFFORTS, THEREBY
RESULTING IN A FRAGMENTED BARGAINING UNIT STRUCTURE, AS ACTUALLY
SUBSEQUENTLY OCCURRED HEREIN.
IN CONCLUSION, THE ASSISTANT SECRETARY'S FINDING THAT THE ALTERNATIVE
UNIT SOUGHT WOULD PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS WAS BASED UPON CONSIDERATIONS WHICH DID NOT PROPERLY PROVIDE
A SHARP DEGREE OF DEFINITION AND PRECISION TO THESE TWO CRITERIA.
INDEED, THE CONSIDERATIONS UPON WHICH THE ASSISTANT SECRETARY RELIED
WERE NOT IMPLEMENTATIVE OF AND WERE NOT CONSISTENT WITH THOSE CRITERIA.
AS A RESULT, THE ASSISTANT SECRETARY FAILED PROPERLY TO GIVE EQUAL
WEIGHT TO THESE CRITERIA IN HIS DECISION.
IN SUMMARY, IN THE CIRCUMSTANCES OF THIS CASE AS REFLECTED IN THE
RECORD BEFORE US, EQUAL APPLICATION OF THE THREE CRITERIA IN SECTION
10(B) AND THE RESULTING CONSISTENCY WITH THE PURPOSES OF THE ORDER,
WOULD DICTATE A FINDING THAT THE ALTERNATIVE UNIT SOUGHT HEREIN IS NOT
AN APPROPRIATE UNIT FOR THE PURPOSES OF EXCLUSIVE RECOGNITION UNDER THE
ORDER.
A/SLMR NO. 564
IN THIS CASE, THE ASSISTANT SECRETARY FOUND THAT THE EMPLOYEES IN THE
PETITIONED-FOR UNIT, THE SEATTLE DCASD, INCLUDING THE PORTLAND DCASO,
SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND
DISTINCT FROM OTHER EMPLOYEES OF THE REGION. IN RESPONSE TO THE
ACTIVITY'S CLAIM THAT SUCH A UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS
OR EFFICIENCY OF AGENCY OPERATIONS, THE ASSISTANT SECRETARY FOUND THAT
THE ACTIVITY TOOK THE IDENTICAL POSITION THAT IT TOOK IN A/SLMR NO. 461;
HE REJECTED THE ACTIVITY'S POSITION PARTLY ON THE BASIS OF THE
CIRCUMSTANCES RECITED IN A/SLMR NO. 559 AND HIS REASONING THEREIN. THE
ASSISTANT SECRETARY CONCLUDED:
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 WHERE LESS THAN
REGION-WIDE UNITS HAVE
BEEN RECOGNIZED OR CERTIFIED AND WHERE THERE CURRENTLY EXIST
NEGOTIATED AGREEMENTS, I FIND
THAT THE PETITIONED-FOR DISTRICT-WIDE UNIT WILL PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS. (FOOTNOTE OMITTED).
WHILE THE ASSISTANT SECRETARY MADE AN AFFIRMATIVE FINDING THAT THE
PROPOSED UNIT MET ALL OF THE APPROPRIATE UNIT CRITERIA OF SECTION 10(B),
WE MUST AGAIN CONCLUDE THAT IN DOING SO HE DID NOT FULLY MEET THOSE
OBLIGATIONS, OUTLINED PREVIOUSLY HEREIN, WHICH THE ORDER IMPOSES UPON
HIM. SPECIFICALLY, A REVIEW OF THE RECORD REVEALS THAT THE ASSISTANT
SECRETARY FAILED TO MAKE AN AFFIRMATIVE EFFORT TO DEVELOP AS COMPLETE A
RECORD AS POSSIBLE WITH REGARD TO THE CRITERIA OF "EFFECTIVE DEALINGS"
AND "EFFICIENCY OF AGENCY OPERATIONS." /18/ WHILE THE TESTIMONY AND
ARGUMENTS ADVANCED BY THE ACTIVITY AS TO WHY THE PROPOSED UNIT WOULD NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS MAY NOT
HAVE PROVIDED THE ASSISTANT SECRETARY WITH A SUFFICIENT BASIS ON WHICH
TO MAKE A DETERMINATION, AS WE HAVE INDICATED, THE DEVELOPMENT OF SUCH
EVIDENCE DOES NOT STOP WITH THE PARTIES. IT IS THE RESPONSIBILITY OF
THE ASSISTANT SECRETARY TO DEVELOP AS COMPLETE A RECORD AS POSSIBLE WITH
REGARD TO EACH OF THE THREE CRITERIA, SOLICITING EVIDENCE FROM THE
PARTIES AS NECESSARY; HE DID NOT DO SO HERE.
WITH REGARD TO THE CIRCUMSTANCES WHICH HE PARTICULARLY NOTED IN
FINDING THAT THE UNIT SOUGHT WOULD PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS, THE ASSISTANT SECRETARY PLAINLY FAILED
TO MAKE AN AFFIRMATIVE DETERMINATION THAT THE UNIT EQUALLY SATISFIED
EACH OF THE 10(B) CRITERIA. AS WE INDICATED PREVIOUSLY, THE EXPERIENCE
OF AN AGENCY AND LABOR ORGANIZATION UNDER A GIVEN UNIT STRUCTURE MAY BE
CONSIDERED IN DETERMINING WHETHER A PETITIONED-FOR UNIT SATISFIES THE
THREE CRITERIA SET FORTH IN SECTION 10(B) OF THE ORDER. HOWEVER, THE
ASSISTANT SECRETARY MAY NOT RELY UPON "THE ABSENCE OF ANY SPECIFIC
COUNTERVAILING EVIDENCE . . . AS TO A LACK OF EFFECTIVE DEALINGS AND
EFFICIENCY OF OPERATIONS" IN OTHER EXISTING BARGAINING UNITS TO MAKE AN
AFFIRMATIVE FINDING REGARDING THESE CRITERIA IN A PROPOSED UNIT.
RATHER, AS WE HAVE PREVIOUSLY EMPHASIZED, IT IS THE RESPONSIBILITY OF
THE ASSISTANT SECRETARY TO DEVELOP AS COMPLETE A RECORD AS POSSIBLE WITH
REGARD TO EACH OF THE THREE CRITERIA, SOLICITING EVIDENCE FROM THE
PARTIES AS NECESSARY; TO GIVE FULL AND CAREFUL CONSIDERATION TO ALL
RELEVANT EVIDENCE IN THE RECORD; AND THEN TO GROUND HIS DECISION UPON A
CAREFUL, THOROUGH ANALYSIS OF EVIDENTIARY CONSIDERATIONS OR FACTORS
WHICH PROVIDE A SHARP DEGREE OF DEFINITION AND PRECISION TO EACH OF THE
THREE CRITERIA. WHERE THE ASSISTANT SECRETARY FINDS A UNIT TO BE
APPROPRIATE FOR PURPOSES OF EXCLUSIVE RECOGNITION, HE MUST MAKE AN
AFFIRMATIVE DETERMINATION THAT A UNIT EQUALLY SATISFIES EACH OF THE
10(B) CRITERIA. RELIANCE UPON A LACK OF EVIDENCE FAILS TO SATISFY THE
REQUIREMENT IN THE ORDER THAT THE ASSISTANT SECRETARY MAKE SUCH AN
AFFIRMATIVE DETERMINATION.
ACCORDINGLY, FOR THE REASONS FULLY DISCUSSED ABOVE IN REGARD TO THE
ASSISTANT SECRETARY'S DECISION IN A/SLMR NO. 559, WE MUST LIKEWISE
REJECT THE ASSISTANT SECRETARY'S RELIANCE UPON THAT DECISION IN REACHING
HIS DECISION IN A/SLMR NO. 564. IN SUMMARY, IN THE CIRCUMSTANCES OF
THIS CASE AS REFLECTED IN THE RECORD BEFORE US, EQUAL APPLICATION OF THE
THREE CRITERIA IN SECTION 10(B) AND THE RESULTING CONSISTENCY WITH THE
PURPOSES OF THE ORDER, WOULD DICTATE A FINDING THAT THE UNIT SOUGHT
HEREIN IS NOT AN APPROPRIATE UNIT FOR PURPOSES OF EXCLUSIVE RECOGNITION
UNDER THE ORDER. HOWEVER, AS NOTED WITH REGARD TO BOTH A/SLMR NO. 461
AND A/SLMR NO. 559, THERE IS NO QUESTION THAT IF THE UNION SOUGHT
RECOGNITION IN A REGIONWIDE UNIT, IT WOULD MEET ALL OF THE SECTION 10(B)
CRITERIA AND, MORE IMPORTANTLY, WOULD BE CONSISTENT WITH THE ORDER'S
POLICY OF PROMOTING A MORE COMPREHENSIVE UNIT STRUCTURE.
CONCLUSION
FOR THE FOREGOING REASONS, WE FIND THAT THE ASSISTANT SECRETARY'S
DECISION AND DIRECTION OF ELECTION IN EACH OF THE ABOVE-ENTITLED CASES
IS INCONSISTENT WITH THE PURPOSES OF THE ORDER. ACCORDINGLY, PURSUANT
TO SECTION 2411.18(B) OF THE COUNCIL'S RULES OF PROCEDURE, WE SET ASIDE
THE ASSISTANT SECRETARY'S DECISIONS AND REMAND THE CASES TO HIM FOR
ACTION CONSISTENT WITH OUR DECISION HEREIN.
IN THIS REGARD, WE HAVE BEEN ADMINISTRATIVELY ADVISED THAT THE
ASSISTANT SECRETARY CURRENTLY HAS UNDER CONSIDERATION A PETITION FOR
CONSOLIDATION OF UNITS REPRESENTED BY AFGE WITHIN THE DEFENSE SUPPLY
AGENCY, INCLUDING THE UNITS INVOLVED HEREIN. (ASSISTANT SECRETARY CASE
NO. 22-07578-UC). SHOULD THE ASSISTANT SECRETARY DETERMINE THAT A
CONSOLIDATED UNIT IS APPROPRIATE, IT WOULD NOT BE INCONSISTENT WITH THIS
DECISION TO INCLUDE THE UNITS INVOLVED HEREIN IN SUCH A CONSOLIDATED
UNIT BY REASON OF THE SPECIAL CIRCUMSTANCES HERE INVOLVED, INCLUDING THE
FACT THAT THE EMPLOYEES IN THESE UNITS HAVE PREVIOUSLY INDICATED THROUGH
THE ELECTION PROCESS THAT THEY WISH AFGE TO SERVE AS THEIR EXCLUSIVE
REPRESENTATIVE AND THE LENGTH OF TIME WHICH HAS ELAPSED SINCE THE
ELECTIONS. OF COURSE, IF A CONSOLIDATION ELECTION SHOULD BE HELD TO
DETERMINE WHETHER THE EMPLOYEES IN THE PROPOSED CONSOLIDATED UNIT WISH
TO BE REPRESENTED IN THAT UNIT, THE EMPLOYEES IN THE THREE UNITS
INVOLVED HEREIN WOULD HAVE THE OPTION ONLY OF BEING REPRESENTED IN THE
CONSOLIDATED UNIT OR BEING UNREPRESENTED-- UNLESS, OF COURSE, AFGE FILES
A SEPARATE PETITION SEEKING TO REPRESENT THE EMPLOYEES INVOLVED HEREIN
IN A REGIONWIDE UNIT WHICH, AS ALREADY INDICATED, WOULD BE APPROPRIATE.
BY THE COUNCIL.
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
ISSUED: DECEMBER 30, 1976
/1/ 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., 1 FLRC 219 (FLRC NO. 71A-46 (NOV. 20,
1972), REPORT NO. 30).
/2/ SECTION 11(A) 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 O 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
FOR WHICH A COMPELLING
NEED EXISTS UNDER CRITERIA ESTABLISHED BY THE FEDERAL LABOR RELATIONS
COUNCIL AND WHICH ARE
ISSUED AT THE AGENCY HEADQUARTERS LEVEL OR AT THE LEVEL OF A PRIMARY
NATIONAL SUBDIVISION; A
NATIONAL OR OTHER CONTROLLING AGREEMENT AT A HIGHER LEVEL IN THE
AGENCY; AND THIS ORDER . . .
/3/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975), AT 37.
/4/ DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION,
SOUTHWEST REGION, TULSA AIRWAY FACILITIES SECTOR, FLRC NO. 74A-28 (MAY
9, 1975), REPORT NO. 69.
/5/ A REVIEW OF THE RECORD INDICATES THAT, AS TO EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS, THE HEARING OFFICER ASKED A FEW
QUESTIONS CONCERNING THE DELEGATED AUTHORITY OF CERTAIN MANAGEMENT
OFFICIALS TO NEGOTIATE AND SIGN A COLLECTIVE BARGAINING AGREEMENT AND
ASKED AN AGENCY WITNESS ONLY THREE INSUBSTANTIAL QUESTIONS CONCERNING
WHETHER THE PROPOSED UNIT WOULD IMPAIR EFFICIENCY OF AGENCY OPERATIONS.
/6/ IN TESTIMONY BEFORE THE ASSISTANT SECRETARY'S HEARING OFFICER AND
IN ITS POSTHEARING BRIEF TO THE ASSISTANT SECRETARY, THE AGENCY
PRESENTED EVIDENCE REGARDING EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS AS WELL AS EVIDENCE REGARDING COMMUNITY OF INTEREST OF THE
EMPLOYEES INVOLVED. THE SAN FRANCISCO REGION CIVILIAN PERSONNEL OFFICER
TESTIFIED AT THE HEARING, AMONG OTHER THINGS, IN EFFECT, THAT IT WOULD
BE EFFICIENT FOR THE REGION TO NEGOTIATE AND DEAL WITH THE EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES IN A SINGLE REGIONWIDE UNIT RATHER THAN WITH
REPRESENTATIVES OF EMPLOYEES IN A MULTIPLICITY OF UNITS WITHIN THE
REGION. IN THIS REGARD, HE TESTIFIED IN EFFECT THAT THE SMALLER SALT
LAKE CITY UNIT WOULD, BY CREATING THE POSSIBILITY OF MULTIPLE UNITS IN
THE REGION, IMPAIR EFFICIENCY BY EXCEEDING THE CAPACITIES OF THE
AGENCY'S LIMITED LABOR-MANAGEMENT RELATIONS STAFF. IN ITS POSTHEARING
BRIEF TO THE ASSISTANT SECRETARY, THE AGENCY ARGUED, AMONG OTHER THINGS,
THAT THE SIZE AND COMPOSITION OF THE PROPOSED UNIT, THE POTENTIAL FOR
MEANINGFUL NEGOTIATIONS, AND THE AVAILABILITY OF PERSONNEL MANAGEMENT
RESOURCES ALL DEMONSTRATE THAT ONE REGIONWIDE UNIT WOULD MORE LIKELY
PROMOTE EFFICIENCY OF AGENCY OPERATIONS AND EFFECTIVE DEALINGS.
/7/ IN REJECTING THE AGENCY'S CONTENTION THAT THE CERTIFICATION OF A
LESS-THAN-REGIONWIDE UNIT WOULD LIMIT THE SCOPE OF NEGOTIATIONS SOLELY
TO THOSE MATTERS WITHIN THE DELEGATED DISCRETIONARY AUTHORITY OF THE
COMMANDER OF THE DISTRICT OFFICE, THE ASSISTANT SECRETARY RELIED ON HIS
DECISION IN A/SLMR NO. 372 WHEREIN HE HAD, IN TURN, RELIED ON THE
COUNCIL'S DECISION IN UNITED FEDERATION OF COLLEGE TEACHERS, LOCAL 1460
AND U.S. MERCHANT MARINE ACADEMY, 1 FLRC 211 (FLRC NO. 71A-15 (NOV. 20,
1972), REPORT NO. 30). HOWEVER, A/SLMR NO. 372 WAS SUBSEQUENTLY
REVIEWED BY THE COUNCIL IN DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT
ADMINISTRATION SERVICES REGION (DCASR), CLEVELAND, OHIO, DEFENSE
CONTRACT ADMINISTRATION SERVICES OFFICES (DCASO'S), AKRON, OHIO AND
COLUMBUS, OHIO, A/SLMR NO. 372, FLRC NO. 74A-41 (AUG. 13, 1975), REPORT
NO. 80. THE COUNCIL SET ASIDE THE ASSISTANT SECRETARY'S DECISION
THEREIN AND REMANDED THE CASE TO HIM. IN DOING SO, THE COUNCIL STATED,
AS TO THE ASSISTANT SECRETARY'S RELIANCE UPON MERCHANT MARINE AND AS TO
THE RELATIONSHIP OF THE AMENDMENTS TO SECTION 11(A) OF THE ORDER TO THE
PRINCIPLES ENUNCIATED IN MERCHANT MARINE:
TURNING TO THE INSTANT CASE (DSA, CLEVELAND), IT IS CLEAR THAT THE
ASSISTANT SECRETARY HAS
MISINTERPRETED AND MISAPPLIED THE MERCHANT MARINE DECISION. FOR
UNDER THE ORDER, AS PRESENTLY
EFFECTIVE, LABOR RELATIONS AND PERSONNEL POLICIES AS ESTABLISHED
(AND, OF COURSE, PUBLISHED)
BY THE DCASR HEADQUARTERS MAY PROPERLY SERVE TO BAR THE MATTER
CONCERNED FROM THE SCOPE OF
BARGAINING UNDER SECTION 11(A) OF THE ORDER. SINCE THESE MATTERS
WOULD THUS BE OUTSIDE THE
SCOPE OF BARGAINING AT THE DCASO LEVEL, DCASR, UNDER THE MERCHANT
MARINE DECISION, WOULD BE
UNDER NO OBLIGATION TO PROVIDE REPRESENTATIVES TO NEGOTIATE AND ENTER
INTO AGREEMENT ON SUCH
MATTERS AT THE DCASO LEVEL.
THUS, AS THE ASSISTANT SECRETARY, IN FINDING THE SEPARATE DCASO UNITS
APPROPRIATE IN THE
PRESENT CASE, RELIED IN PART ON AN ERRONEOUS INTERPRETATION AND
APPLICATION OF THE MERCHANT
MARINE DECISION, WE SHALL REMAND THE CASE TO HIM FOR RECONSIDERATION
AND DISPOSITION
CONSISTENT WITH OUR OPINION.
WE ARE MINDFUL IN THE ABOVE REGARD THAT UNDER THE AMENDMENTS TO
SECTION 11(A), ADOPTED IN
E.O. 11838 AND TO BECOME EFFECTIVE 90 DAYS AFTER THE COUNCIL ISSUES
THE CRITERIA FOR
DETERMINING "COMPELLING NEED," DCASR DIRECTIVES AS SUCH WOULD NOT
THEREAFTER SERVE TO LIMIT
THE SCOPE OF BARGAINING AT THE DCASO LEVEL-- BECAUSE DCASR APPEARS TO
BE A SUBDIVISION BELOW
THE LEVEL OF "AGENCY HEADQUARTERS" OR "THE LEVEL OF A PRIMARY
NATIONAL SUBDIVISION." HOWEVER,
THE ASSISTANT SECRETARY SHOULD CAREFULLY EXAMINE THE REGULATORY
FRAMEWORK OF DSA, INCLUDING
THE DCASR'S, WHICH PREVAILS AT THE TIME OF HIS RECONSIDERATION AND
THEN WEIGH THE IMPACT OF
MERCHANT MARINE AS PROPERLY INTERPRETED AND APPLIED TO THE EXISTING
CIRCUMSTANCES IN ORDER
THAT THE THREE CRITERIA IN SECTION 10(B) CAN BE PROPERLY APPLIED.
MOREOVER, IN SO APPLYING
MERCHANT MARINE, THE ASSISTANT SECRETARY SHOULD CAREFULLY CONSIDER
THAT THE AMENDMENTS TO
SECTION 11(A) AS ADOPTED IN E.O. 11838 WERE NOT DESIGNED TO RENDER
FRAGMENTED UNITS
APPROPRIATE.
IN THE ABOVE REGARD, AS INDICATED IN SECTION V.1. OF THE REPORT
ACCOMPANYING E.O. 11838,
THE CHANGES IN SECTION 11(A) OF THE ORDER WERE INTENDED TO
"COMPLEMENT" THE RECOMMENDATIONS OF
THE COUNCIL RELATING TO THE CONSOLIDATION OF BARGAINING UNITS. THE
PURPOSE OF THOSE
RECOMMENDATIONS (WHICH WERE ADOPTED BY THE PRESIDENT) WAS PRINCIPALLY
TO REDUCE THE UNIT
FRAGMENTATION THAT HAD PREVIOUSLY DEVELOPED AND TO ENCOURAGE THE
CREATION OF MORE
COMPREHENSIVE BARGAINING UNITS IN THE INTEREST OF THE ENTIRE PROGRAM.
(FOOTNOTES OMITTED.)
/8/ SEE PAGE 7 SUPRA.
/9/ IN THIS REGARD, WE NOTE, AS DID THE AGENCY IN TESTIMONY AND BRIEF
BEFORE THE ASSISTANT SECRETARY, THAT THE ASSISTANT SECRETARY EARLIER
CONSIDERED AND REJECTED AS INAPPROPRIATE VARIOUS LESS-THAN-REGIONWIDE
UNITS IN THE SAN FRANCISCO DCASR RANGING IN SIZE FROM 18 TO 686
EMPLOYEES. HE FOUND SUCH UNITS "WOULD ARTIFICALLY (SIC) DIVIDE AND
FRAGMENT . . . OPERATIONS, AND CANNOT BE REASONABLY EXPECTED TO PROMOTE
EFFECTIVE DEALINGS OR EFFICIENCY OF OPERATIONS." DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR), SAN FRANCISCO,
A/SLMR NO. 112 (NOV. 30, 1971), DECISION BY THE THE ASSISTANT SECRETARY.
THIS PRECEDENTIAL DECISION WAS NEITHER DISCUSSED NOR EVEN ADVERTED TO
IN THE INSTANT CASE.
/10/ WE DO NOT HERE DECIDE THAT THE FACTORS RELIED UPON BY THE
ASSISTANT SECRETARY ESTABLISH A SEPARATE COMMUNITY OF INTEREST FOR THE
EMPLOYEES IN THE UNIT FOUND APPROPRIATE. INDEED, MANY OF THE FACTORS
RELIED UPON BY THE ASSISTANT SECRETARY INDICATE A COMMUNITY OF INTEREST
THAT IS REGIONWIDE IN SCOPE RATHER THAN LIMITED TO THE EMPLOYEES IN THE
UNIT SOUGHT BY THE UNION.
/11/ A REVIEW OF THE RECORD DISCLOSES THAT THE HEARING OFFICER DID
NOT AT ANY TIME SOLICIT TESTIMONY CONCERNING THE CRITERIA OF EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS, LIMITING DIRECT
QUESTIONING SOLELY TO INDICIA OF COMMUNITY OF INTEREST AMONG EMPLOYEES
WITHIN THE UNIT SOUGHT.
/12/ 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., 1 FLRC 219 (FLRC NO. 71A-46 (NOV. 20,
1972), REPORT NO. 30); 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 (JUNE 10, 1975), REPORT NO.
73 (AFF'D NATIONAL BROILER COUNCIL, INC. V. FEDERAL LABOR RELATIONS
COUNCIL, CIVIL ACTION NO. 147-47-A (E.D. VA., SEPT. 5, 1975)).
/13/ SECTION 12(B)(4) PROVIDES IN PERTINENT PART:
SEC. 12. BASIC PROVISIONS OF AGREEMENTS. EACH AGREEMENT BETWEEN AN
AGENCY AND A LABOR
ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
ACCORDANCE WITH APPLICABLE LAWS
AND REGULATIONS--
(4) TO MAINTAIN THE EFFICIENCY OF THE GOVERNMENT OPERATIONS ENTRUSTED
TO THEM.
/14/ IN THIS REGARD, THE SAME CONCERN ABOUT FRAGMENTATION MIGHT HAVE
BEEN EXPRESSED ABOUT ANY UNREPRESENTED PORTION OF THE REGION, FOR
EXAMPLE, THE SEATTLE DCASD, WHICH IN ALL SIGNIFICANT RESPECTS HAD THE
SAME RELATIONSHIP WITH THE DCASR HEADQUARTERS AS THE HAWAII RESIDENCY
OFFICE.
/15/ IN THIS REGARD, AGENCY TESTIMONY CONCERNING THE EFFICIENCIES IN
AGENCY OPERATIONS EXPERIENCED IN OTHER UNITS WOULD BE RELEVANT, AS WOULD
TESTIMONY CONCERNING THE EFFECTIVENESS OF DEALINGS IN SUCH UNITS.
/16/ NOTE 2 SUPRA.
/17/ IN THE SUBJECT DECISION, A/SLMR NO. 559, THE ASSISTANT SECRETARY
TOOK NOTE OF THIS LANGUAGE IN FLRC NO. 74A-41, BUT CONCLUDED THAT HE DID
NOT FIND THIS CONCEPT TO BE INCONSISTENT WITH THE CONTINUED EXISTENCE OR
ESTABLISHMENT OF UNITS LESS COMPREHENSIVE THAN REGION OR DISTRICTWIDE,
WHICH OTHERWISE MEET THE TESTS OF APPROPRIATENESS UNDER THE ORDER.
/18/ A REVIEW OF THE RECORD DISCLOSES THAT THE HEARING OFFICER DID
NOT AT ANY TIME SOLICIT TESTIMONY CONCERNING THE CRITERIA OF EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS, LIMITING DIRECT
QUESTIONING SOLELY TO INDICIA OF COMMUNITY OF INTEREST AMONG EMPLOYEES
WITHIN THE UNIT SOUGHT.
7 A/SLMR 886; P. 702; CASE NO. 61-2341(RO); AUGUST 30, 1977.
AUGUST 30, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF SUPPLEMENTAL DECISION AND ORDER
OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
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. 886
ON NOVEMBER 27, 1974, THE ASSISTANT SECRETARY ISSUED HIS DECISION AND
DIRECTION OF ELECTION IN A/SLMR NO. 461, FINDING THAT THE PETITIONED FOR
UNIT IN THE SUBJECT CASE WAS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER SECTION 10 OF THE ORDER.
ON DECEMBER 30, 1976, THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL)
ISSUED ITS DECISION ON APPEAL IN FLRC NO. 75A-14, IN WHICH IT FOUND THAT
THE PETITIONED FOR UNIT IS NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER THE ORDER.
BASED ON THE COUNCIL'S HOLDING IN FLRC NO. 75A-14 AND THE RATIONALE
CONTAINED THEREIN, THE ASSISTANT SECRETARY ORDERED THAT THE
CERTIFICATION OF REPRESENTATIVE PREVIOUSLY ISSUED TO THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3540, AFL-CIO, BE REVOKED, AND
THAT THE PETITION IN THE SUBJECT CASE BE DISMISSED.
DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION (DCASR),
SAN FRANCISCO, CALIFORNIA,
DEFENSE CONTRACT ADMINISTRATION
SERVICES DISTRICT (DCASD),
SALT LAKE CITY, UTAH /1/
ACTIVITY
CASE NO. 61-2341(RO),
A/SLMR NO. 461,
FLRC NO. 75A-14
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3540, AFL-CIO
PETITIONER
SUPPLEMENTAL DECISION AND ORDER
ON NOVEMBER 27, 1974, THE ASSISTANT SECRETARY ISSUED HIS DECISION AND
DIRECTION FOR ELECTION IN A/SLMR NO. 461, FINDING THAT THE PETITIONED
FOR UNIT WAS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER
THE ORDER. /2/ THEREAFTER, ON DECEMBER 30, 1976, THE FEDERAL LABOR
RELATIONS COUNCIL (COUNCIL) ISSUED ITS CONSOLIDATED DECISION ON APPEALS
INVOLVING, AMONG OTHERS, THE SUBJECT CASE. THE COUNCIL CONCLUDED, IN
ESSENCE, THAT THE PETITIONED FOR UNIT IN THE SUBJECT CASE WAS NOT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER.
/3/
BASED ON THE COUNCIL'S HOLDING IN THE INSTANT CASE AND THE RATIONALE
CONTAINED THEREIN, I SHALL ORDER THAT THE CERTIFICATION OF
REPRESENTATIVE PREVIOUSLY ISSUED TO THE PETITIONER BE REVOKED AND THAT
THE SUBJECT PETITION BE DISMISSED.
ORDER
IT IS HEREBY ORDERED THAT THE CERTIFICATION OF REPRESENTATIVE ISSUED
IN CASE NO. 61-2341(RO) BE, AND IT HEREBY IS, REVOKED, AND THAT THE
PETITION IN CASE NO. 61-2341(RO) BE, AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
AUGUST 30, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ SUBSEQUENT TO THE ISSUANCE OF THE DECISION ON APPEAL IN FLRC NO.
75A-14, THE NAME OF THE AGENCY INVOLVED WAS CHANGED TO DEFENSE LOGISTICS
AGENCY.
/2/ I HAVE BEEN ADMINISTRATIVELY ADVISED THAT PURSUANT TO THE
DECISION AND DIRECTION OF ELECTION IN A/SLMR NO. 461, A CERTIFICATION OF
REPRESENTATIVE WAS ISSUED TO THE PETITIONER INVOLVED HERE.
/3/ FURTHER PROCESSING OF THE SUBJECT CASE WAS HELD IN ABEYANCE
PENDING THE COUNCIL'S DISPOSITION OF AN APPEAL IN DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR), CLEVELAND,
OHIO, ETC., FLRC NO. 76A-97 (JULY 20, 1977).
UNITED STATES
FEDERAL LABOR RELATIONS COUNCIL
WASHINGTON, D.C. 20415
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
FLRC NO. 75A-14
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3540, AFL-CIO
DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT
ADMINISTRATION SERVICES REGION,
SAN FRANCISCO
A/SLMR NO. 559
FLRC NO. 75A-128
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2723, AFL-CIO
DEFENSE SUPPLY AGENCY, DEFENSE
CONTRACT ADMINISTRATION SERVICES
REGION (DCASR), SAN FRANCISCO,
DEFENSE CONTRACT ADMINISTRATION
SERVICES DISTRICT (DCASD), SEATTLE,
WASHINGTON
A/SLMR NO. 564
FLRC NO. 76A-4
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3204, AFL-CIO
DECISION ON APPEALS FROM ASSISTANT SECRETARY DECISIONS
BACKGROUND OF CASES
THESE APPEALS AROSE FROM THREE SEPARATE DECISIONS OF THE ASSISTANT
SECRETARY IN WHICH HE FOUND THAT THREE PROPOSED BARGAINING UNITS IN THE
DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION SERVICES REGION
(DCASR), SAN FRANCISCO, CALIFORNIA, WERE APPROPRIATE AND DIRECTED AN
ELECTION IN EACH. INASMUCH AS THE THREE APPEALS ARISE OUT OF THE SAME
BASIC CIRCUMSTANCES AND FACTUAL BACKGROUND, INVOLVE THE SAME AGENCY AND
NATIONAL LABOR ORGANIZATION, AND PRESENT THE SAME MAJOR POLICY ISSUE,
THE COUNCIL HERE CONSOLIDATED THEM FOR DECISION ON THE MERITS.
ALL THREE OF THE DECISIONS OF THE ASSISTANT SECRETARY GREW OUT OF
PETITIONS FILED BY LOCALS OF THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (AFGE) SEEKING TO REPRESENT UNITS OF EMPLOYEES OF THE SAN
FRANCISCO DCASR. THE SAN FRANCISCO DCASR IS ONE OF 11 REGIONS OF THE
DEFENSE SUPPLY AGENCY (DSA), ALL OF WHICH PROVIDE CONTRACT
ADMINISTRATION SERVICES AND SUPPORT FOR THE DEPARTMENT OF DEFENSE, AS
WELL AS OTHER FEDERAL AGENCIES. THE SAN FRANCISCO DCASR COVERS THE
STATES OF UTAH, MONTANA, IDAHO, WASHINGTON, OREGON, ALASKA, HAWAII;
MOST OF NEVADA; NORTHERN CALIFORNIA; AND THE MARIANA ISLANDS. IT
CONSISTS OF A HEADQUARTERS ORGANIZATION AND FIELD ACTIVITIES WHICH ARE
DIVIDED INTO TWO DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICTS
(DCASD'S), SEATTLE AND SALT LAKE CITY, AS WELL AS SIX DEFENSE CONTRACT
ADMINISTRATION SERVICES OFFICES (DCASO'S) LOCATED IN PORTLAND, OREGON,
AND AT FIVE CONTRACTORS' OFFICES IN THE SAN FRANCISCO BAY AREA AND A
HAWAII RESIDENCY OFFICE. THE FIELD ACTIVITIES PERFORM BASIC MISSION
FUNCTIONS OF THE REGION IN THEIR RESPECTIVE GEOGRAPHIC AREAS. WITH THE
EXCEPTION OF THE DCASO IN PORTLAND, OREGON, WHICH REPORTS THROUGH THE
DCASD IN SEATTLE, ALL DCASO'S AND DCASD'S WITHIN THE REGION REPORT
DIRECTLY TO DCASR HEADQUARTERS IN SAN FRANCISCO. APPROXIMATELY 1,250
CIVILIAN EMPLOYEES ARE EMPLOYED THROUGHOUT THE DCASR, SAN FRANCISCO,
WITH MOST EMPLOYEES LOCATED IN NORTHERN CALIFORNIA. ALL OF THE
EMPLOYEES OF THE REGION ARE SUBJECT TO UNIFORM PERSONNEL POLICIES AND
PRACTICES ESTABLISHED AT REGIONAL HEADQUARTERS. PRIOR TO THE FILING OF
THE SUBJECT REPRESENTATION PETITIONS, NONE OF THE EMPLOYEES OF THE DCASR
WERE IN UNITS OF EXCLUSIVE RECOGNITION.
FLRC NO. 75A-14 (A/SLMR NO. 461)
IN JUNE 1974, AFGE LOCAL 3540 SOUGHT AN ELECTION IN A DISTRICTWIDE
UNIT COMPOSED OF THE 77 ELIGIBLE PROFESSIONAL AND NONPROFESSIONAL
EMPLOYEES OF THE SALT LAKE CITY DCASD. THE SAN FRANCISCO DCASR
CONTENDED THAT THE CLAIMED UNIT WAS NOT APPROPRIATE BECAUSE IT EXCLUDED
EMPLOYEES WHO SHARE A COMMUNITY OF INTEREST WITH THE EMPLOYEES IN THE
UNIT SOUGHT AND, FURTHER, THAT THE UNIT SOUGHT WOULD NOT PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. THE DCASR
CONTENDED THAT THE ONLY APPROPRIATE UNIT WAS ONE COMPOSED OF ALL
ELIGIBLE EMPLOYEES OF THE DCASR, SAN FRANCISCO.
THE ASSISTANT SECRETARY, IN A DECISION DATED NOVEMBER 27, 1974,
DETERMINED THAT THE SALT LAKE CITY DCASD UNIT WAS APPROPRIATE FOR THE
PURPOSES OF EXCLUSIVE RECOGNITION UNDER THE ORDER. AFTER NOTING
PARTICULARLY THAT THE PETITIONED-FOR EMPLOYEES SHARE COMMON DISTRICTWIDE
SUPERVISION, PERFORM THEIR DUTIES WITHIN THE ASSIGNED GEOGRAPHICAL
LOCALITY OF THE DCASD, AND DO NOT INTERCHANGE OR HAVE JOB CONTACT WITH
OTHER EMPLOYEES OF THE REGION, AND THAT GENERALLY TRANSFERS TO OR FROM
THE DISTRICT OFFICE OCCUR ONLY IN SITUATIONS INVOLVING PROMOTIONS OR
REDUCTION-IN-FORCE PROCEDURES, 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
SAN FRANCISCO REGION. THE ASSISTANT SECRETARY WENT ON TO ADD:
"FURTHER, BASED ON THE FOREGOING CONSIDERATIONS, I FIND THAT SUCH A UNIT
WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS." IN
MAKING THIS FINDING WITH RESPECT TO EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS, THE ASSISTANT SECRETARY REJECTED THE AGENCY'S
CONTENTIONS THAT CERTIFICATION OF A LESS THAN REGIONWIDE UNIT WOULD
LIMIT THE SCOPE OF NEGOTIATIONS SOLELY TO THOSE MATTERS WITHIN THE
DELEGATED DISCRETIONARY AUTHORITY OF THE COMMANDER OF THE DISTRICT
OFFICE, AND THUS WOULD NOT RESULT IN EFFECTIVE DEALINGS BETWEEN THE
PARTIES OR PROMOTE THE EFFICIENCY OF AGENCY OPERATIONS.
FLRC NO. 75A-128 (A/SLMR NO. 559)
IN NOVEMBER 1974, AFGE LOCAL 2723 SOUGHT AN ELECTION IN A UNIT
COMPOSED OF ALL ELIGIBLE NONPROFESSIONAL EMPLOYEES IN DCASR
HEADQUARTERS. DCASR OFFICIALS CONTENDED THAT THE CLAIMED UNIT WAS NOT
APPROPRIATE BECAUSE IT WOULD RESULT IN UNIT FRAGMENTATION AND WOULD NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. THEY
MAINTAINED THAT ONLY A SINGLE REGIONWIDE UNIT WOULD BE APPROPRIATE. AT
THE HEARING, THE UNION INDICATED A WILLINGNESS TO INCLUDE THE FIVE
DCASO'S, ALL OF WHICH ARE LOCATED IN THE SAN FRANCISCO BAY AREA, AND THE
HAWAII RESIDENCY OFFICE IN THE UNIT. THE ASSISTANT SECRETARY, ON
SEPTEMBER 16, 1975, FOUND THAT A UNIT ENCOMPASSING THE EMPLOYEES OF
DCASR HEADQUARTERS, THE FIVE DCASO'S IN THE SAN FRANCISCO BAY AREA, AND
THE HAWAII RESIDENCY OFFICE WAS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION IN THAT THE EMPLOYEES IN SUCH UNIT SHARED A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST WITH EACH OTHER, THAT SUCH A UNIT
WOULD PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS,
AND THAT THE AGENCY CONTENTIONS TO THE CONTRARY WERE "AT BEST,
SPECULATIVE AND CONJECTURAL."
MORE PARTICULARLY, WITH REGARD TO EFFICIENCY OF AGENCY OPERATIONS,
THE ASSISTANT SECRETARY OBSERVED THAT MORE THAN COST FACTORS SHOULD BE
INVOLVED IN MAKING SUCH A DETERMINATION, CITING AND QUOTING EXTENSIVELY
FROM THE COUNCIL'S NEGOTIABILITY DETERMINATION IN THE LITTLE ROCK CASE.
/1/ THE ASSISTANT SECRETARY FOUND IT:
(E)VIDENT THAT A DETERMINATION OF EFFICIENCY OF AGENCY OPERATIONS IS
DEPENDENT UPON A
COMPLEX OF FACTORS AND THAT . . . TANGIBLE AND INTANGIBLE BENEFITS TO
EMPLOYEES AND ACTIVITIES
RESULTING FROM EMPLOYEE REPRESENTATION BY A LABOR ORGANIZATION CAN
RESULT IN IMPROVED
EFFICIENCY OF OPERATIONS DESPITE INCREASED COST FACTORS. (FOOTNOTE
OMITTED.)
HE NOTED:
. . . 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.
HE FOUND THAT THE UNIT "COULD RESULT IN ACTUAL ECONOMIC SAVINGS AND
INCREASED PRODUCTIVITY DUE TO THE HOMOGENEITY OF ITS COMPOSITION."
NOTING 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," THE ASSISTANT
SECRETARY FOUND THAT "STANDING ALONE, SUCH SPECULATION AS TO WHAT MIGHT
BE HELPFUL OR DESIRABLE (WAS) INSUFFICIENT TO ESTABLISH THAT THE
PROPOSED UNIT IS INAPPROPRIATE WITHIN THE MEANING OF SECTION 10(B) OF
THE ORDER."
WITH REGARD TO EFFECTIVE DEALINGS, THE ASSISTANT SECRETARY, OBSERVING
THAT THE PRINCIPAL OR ULTIMATE AUTHORITY WITHIN THE REGION INVOLVED IN
THE NEGOTIATION AND APPROVAL OF NEGOTIATED AGREEMENTS AND IN THE
RESOLUTION OF GRIEVANCES AND OTHER PERSONNEL MATTERS IS LOCATED IN THE
DCASR HEADQUARTERS, CONCLUDED THAT THE UNIT FOUND APPROPRIATE WOULD
PROMOTE EFFECTIVE DEALINGS TO THE EXTENT THAT THE INDIVIDUALS MOST
CONCERNED WITH LABOR-MANAGEMENT RELATIONS, FISCAL MATTERS AND THE
DIRECTION OF OPERATIONS "ARE LOCATED ORGANIZATIONALLY WITH THE UNIT
FOUND APPROPRIATE." THE ASSISTANT SECRETARY WENT ON TO STATE, HOWEVER,
THAT, IN HIS 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 O PERSONNEL, FISCAL AND PROGRAMMATIC
MATTERS." RELYING ON THE AMENDMENTS TO SECTION 11(A) OF THE ORDER IN
E.O. 11838, /2/ THE ASSISTANT SECRETARY STATED THAT "IT IS CLEARLY
CONTEMPLATED BY THE EXECUTIVE ORDER THAT LABOR-MANAGEMENT NEGOTIATIONS
COULD PROPERLY BE CONDUCTED AT LOWER AGENCY, REGIONAL, OR DISTRICT
LEVELS, AND THAT, THEREFORE, UNITS OF LESS BROAD PROPORTIONS COULD BE
APPROPRIATE." FURTHER, HE WENT ON TO SAY 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.
THE ASSISTANT SECRETARY CONCLUDED:
THUS, IN MY VIEW, THE ORDER, WHILE RECOGNIZING THE APPROPRIATENESS OF
BROADLY BASED UNITS
UNDER CERTAIN CIRCUMSTANCES, 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. (FOOTNOTE OMITTED.)
FLRC NO. 76A-4 (A/SLMR NO. 564)
IN OCTOBER 1974, AFGE LOCAL 3204 SOUGHT AN ELECTION INA DISTRICTWIDE
UNIT OF ALL ELIGIBLE GENERAL SCHEDULE AND PROFESSIONAL EMPLOYEES IN THE
SEATTLE, WASHINGTON, DCASD. THE PROPOSED UNIT INCLUDED, IN ADDITION TO
THE EMPLOYEES OF THE SEATTLE DISTRICT, EMPLOYEES OF THE PORTLAND, OREGON
DCASO WHICH, ORGANIZATIONALLY, REPORTS TO REGIONAL HEADQUARTERS THROUGH
SEATTLE. THE REGION CONTENDED THAT THE UNIT SOUGHT WAS NOT APPROPRIATE
BECAUSE, AMONG OTHER THINGS, IT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. IN THE ACTIVITY'S VIEW, ONLY A SINGLE
DCASR-WIDE UNIT WOULD BE APPROPRIATE.
THE ASSISTANT SECRETARY FOUND THE PETITIONED-FOR UNIT APPROPRIATE IN
SEPTEMBER 1975. IN DOING SO, HE DETERMINED THAT THE APPROXIMATELY 180
EMPLOYEES SOUGHT TO BE INCLUDED WITHIN THE PROPOSED UNIT OF THE SEATTLE
DCASD AND THE PORTLAND DCASO SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST SEPARATE AND DISTINCT FROM OTHER EMPLOYEES OF THE REGION. IN
DISAGREEMENT WITH THE CLAIMS OF REGIONAL OFFICIALS, THE ASSISTANT
SECRETARY DETERMINED THAT THE PROPOSED UNIT WOULD PROMOTE EFFECTIVE
DEALINGS AND THE EFFICIENCY OF AGENCY OPERATIONS. IN THIS REGARD, HE
AGAIN NOTED, AS IN HIS DECISION IN A/SLMR NO. 559 SUPRA, THAT A
DETERMINATION OF 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 WHICH CAN RESULT IN IMPROVED
EFFICIENCY OF AGENCY OPERATIONS DESPITE INCREASED COST FACTORS AND THAT
A CLAIMED UNIT MAY PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
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. HE WAS NOT PERSUADED BY THE REGION'S ARGUMENT THAT THE
NEGOTIATING AUTHORITY OF THE DISTRICT COMMANDER WOULD BE EXTREMELY
LIMITED, NOTING CERTAIN AREAS OF RESPONSIBILITY THAT THE DISTRICT
COMMANDER DOES HAVE. THE ASSISTANT SECRETARY CONCLUDED:
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 LESS THAN
REGION-WIDE UNITS HAVE BEEN
RECOGNIZED OR CERTIFIED AND WHERE THERE CURRENTLY EXIST NEGOTIATED
AGREEMENTS, I FIND THAT THE
PETITIONED FOR DISTRICT-WIDE UNIT WILL PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY
OPERATIONS. (FOOTNOTE OMITTED.)
FOLLOWING EACH OF THE ASSISTANT SECRETARY'S DECISIONS IN THESE CASES,
SEPARATE ELECTIONS WERE CONDUCTED IN EACH OF THE THREE SEPARATE UNITS
WHICH HAS BEEN FOUND APPROPRIATE AND AFGE WAS CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE IN EACH UNIT. THEREAFTER, IN EACH CASE, DSA APPEALED THE
ASSISTANT SECRETARY'S DECISION TO THE COUNCIL. UPON CONSIDERATION OF
THE PETITIONS FOR REVIEW, THE COUNCIL DETERMINED THAT THE SAME MAJOR
POLICY ISSUE IS PRESENTED BY EACH OF THE DECISIONS OF THE ASSISTANT
SECRETARY, NAMELY: WHETHER THE ASSISTANT SECRETARY'S DECISION IS
CONSISTENT WITH AND PROMOTES THE PURPOSES AND POLICIES OF THE ORDER,
ESPECIALLY THOSE REFLECTED IN SECTION 10(B). NEITHER PARTY FILED A
BRIEF ON THE MERITS.
OPINION
SECTION 6(A)(1) OF THE ORDER ASSIGNED TO THE ASSISTANT SECRETARY THE
RESPONSIBILITY FOR DECIDING QUESTIONS AS TO UNITS APPROPRIATE FOR THE
PURPOSES OF EXCLUSIVE RECOGNITION. THE COUNCIL, PURSUANT TO SECTION
2411.18(A) OF ITS REGULATIONS, WILL SUSTAIN SUCH DECISIONS UNLESS THEY
ARE ARBITRARY AND CAPRICIOUS OR INCONSISTENT WITH THE PURPOSES OF THE
ORDER. IN THE OPINION OF THE COUNCIL, THE DECISION OF THE ASSISTANT
SECRETARY IN EACH OF THESE CASES IS INCONSISTENT WITH THE PURPOSES OF
THE ORDER, SPECIFICALLY THE LANGUAGE AND INTENT OF SECTION 10(B).
SECTION 10(B) PROVIDES, IN PERTINENT PART, THAT:
A UNIT MAY BE ESTABLISHED ON A PLANT OR INSTALLATION, CRAFT,
FUNCTIONAL, OR OTHER BASIS
WHICH WILL ENSURE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
AMONG THE EMPLOYEES CONCERNED
AND WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS.
THE COUNCIL ON SEVERAL OCCASIONS HAS CONSIDERED THE MEANING AND
APPLICATION OF SECTION 10(B) IN THE ESTABLISHMENT OF APPROPRIATE UNITS
FOR THE PURPOSES OF EXCLUSIVE RECOGNITION. IN PARTICULAR, THE COUNCIL
HAS ADDRESSED THE REQUIREMENT THAT ANY PROPOSED UNIT OF EXCLUSIVE
RECOGNITION MUST MEET ALL THREE APPROPRIATE UNIT CRITERIA PRESCRIBED IN
SECTION 10(B), THAT IS, A UNIT MUST (1) ENSURE A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST AMONG THE EMPLOYEES CONCERNED, (2) PROMOTE
EFFECTIVE DEALINGS, AND (3) PROMOTE EFFICIENCY OF AGENCY OPERATIONS.
IN THE REPORT ACCOMPANYING E.O. 11838, THE COUNCIL, IN DISCUSSING ITS
BELIEF "THAT THE POLICY OF PROMOTING MORE COMPREHENSIVE BARGAINING UNITS
AND HENCE OF REDUCING FRAGMENTATION IN THE BARGAINING UNIT STRUCTURE
WILL FOSTER THE DEVELOPMENT OF A SOUND FEDERAL LABOR-MANAGEMENT
RELATIONS PROGRAM," STATED:
WE FURTHER FEEL THAT THE ASSISTANT SECRETARY CAN DO MUCH TO FOSTER
THIS POLICY IN CARRYING
OUT HIS FUNCTIONS OF DECIDING OTHER REPRESENTATION QUESTIONS
INCLUDING THE APPROPRIATENESS OF
NEWLY SOUGHT UNITS. ACCORDINGLY, IN ALL REPRESENTATION QUESTIONS,
EQUAL WEIGHT MUST BE GIVEN
TO EACH OF THE THREE CRITERIA IN SECTION 10(B) OF THE ORDER. BY
DOING SO, THE RESULT SHOULD
BE BROADER, MORE COMPREHENSIVE BARGAINING UNITS. /3/
THUS THE COUNCIL CONCLUDED THAT THE APPROPRIATE APPLICATION OF THE
THREE CRITERIA WILL FACILITATE THE REDUCTION OF FRAGMENTATION IN
BARGAINING UNIT STRUCTURE IN THE FEDERAL LABOR-MANAGEMENT RELATIONS
PROGRAM AND THEREBY PROMOTE THE POLICY OF CREATING MORE COMPREHENSIVE
UNITS.
IN ITS DECISION IN TULSA AFS, THE COUNCIL DISCUSSED AT LENGTH THE
OBLIGATIONS OF THE ASSISTANT SECRETARY IN APPLYING THE THREE 10(B)
CRITERIA. /4/ THE COUNCIL REVIEWED THE HISTORY OF THE DEVELOPMENT OF
EXCLUSIVE RECOGNITION OF APPROPRIATE UNITS IN THE FEDERAL
LABOR-MANAGEMENT RELATIONS PROGRAM AND CONCLUDED:
IT IS CLEAR THAT THE EXPRESS LANGUAGE OF SECTION 10(B) REQUIRES THAT
ANY PROPOSED UNIT OF
EXCLUSIVE RECOGNITION MUST SATISFY EACH OF THE THREE CRITERIA SET
FORTH THEREIN, AND THAT THE
ASSISTANT SECRETARY MUST AFFIRMATIVELY SO DETERMINE, BEFORE THAT UNIT
PROPERLY CAN BE FOUND TO
BE APPROPRIATE. THIS CONCLUSION IS AMPLY SUPPORTED BY THE PURPOSE OF
THE PROVISION, AS
EVIDENCED BY ITS "LEGISLATIVE HISTORY" . . . ESPECIALLY WHEREIN THE
CRITERION OF COMMUNITY OF
INTEREST OF THE EMPLOYEES INVOLVED WAS EXPLICITLY BALANCED WITH OTHER
CONSIDERATIONS IMPORTANT
TO MANAGEMENT AND PROTECTION OF THE PUBLIC INTEREST IN THE
PROMULGATION OF E.O. 11491 IN 1969,
I.E., THAT UNITS FOUND APPROPRIATE MUST ALSO PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS.
FURTHER, AFTER QUOTING THOSE PASSAGES OF THE COUNCIL'S REPORT TO THE
PRESIDENT WHICH LED TO THE ISSUANCE OF EXECUTIVE ORDER 11838 WHEREIN THE
THREE CRITERIA WERE DISCUSSED, THE COUNCIL STATED AS TO THE REQUIRED
FINDINGS UNDER SECTION 10(B) OF THE ORDER:
THUS, THE ASSISTANT SECRETARY MUST NOT ONLY AFFIRMATIVELY DETERMINE
THAT A UNIT WILL ENSURE
A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AMONG THE EMPLOYEES
CONCERNED AND WILL PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS, BUT MUST GIVE
WEIGHT TO EACH OF THE
THREE CRITERIA BEFORE THE PARTICULAR UNIT CAN BE FOUND TO BE
APPROPRIATE.
IN TULSA AFS, THE COUNCIL ALSO DISCUSSED THE RESPONSIBILITY OF THE
ASSISTANT SECRETARY IN UNIT DETERMINATION PROCEEDINGS TO DEVELOP AND
CONSIDER EVIDENCE CONCERNING THE APPROPRIATE UNIT CRITERIA IN SECTION
10(B) OF THE ORDER. THE COUNCIL STRESSED THAT IT IS THE OBLIGATION OF
THE ASSISTANT SECRETARY TO "DEVELOP AS COMPLETE A RECORD AS POSSIBLE
WITH REGARD TO EACH OF THE THREE CRITERIA . . . AND . . . GIVE FULL AND
CAREFUL CONSIDERATION TO ALL RELEVANT EVIDENCE IN THE RECORD IN REACHING
HIS DECISION." IN THIS REGARD, THE COUNCIL NOTED THAT PARTIES TO A
REPRESENTATION PROCEEDING ARE RESPONSIBLE FOR PROVIDING THE ASSISTANT
SECRETARY WITH ALL INFORMATION RELEVANT TO THE APPROPRIATE UNIT CRITERIA
THAT IS WITHIN THEIR KNOWLEDGE AND POSSESSION, BUT EMPHASIZED THAT THE
ASSISTANT SECRETARY MUST ACTIVELY SOLICIT SUCH EVIDENCE AS NECESSARY TO
ENABLE HIM TO MAKE A FULLY-INFORMED JUDGMENT AS TO WHETHER A PARTICULAR
UNIT WILL SATISFY EACH OF THE THREE 10(B) CRITERIA. IN THIS REGARD, THE
COUNCIL STATED:
(T)HERE IS A NEED FOR A SHARPER DEGREE OF DEFINITION OF THE CRITERIA
OF EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS TO FACILITATE BOTH THE
DEVELOPMENT AND PRESENTATION OF
EVIDENCE PERTAINING TO THOSE CRITERIA BY AGENCIES AND LABOR
ORGANIZATIONS, AND THE QUALITATIVE
APPRAISAL OF SUCH EVIDENCE BY THE ASSISTANT SECRETARY IN APPROPRIATE
UNIT DETERMINATIONS. AS
HE HAS DONE WITH THE COMMUNITY OF INTEREST CRITERION, THEREFORE, THE
ASSISTANT SECRETARY
SHOULD DEVELOP SUBSIDIARY FACTORS OR INDICATORS WHICH WILL SERVE AS
GUIDELINES IN DETERMINING
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. IN THIS WAY,
EACH OF THE POLICY GOALS
TO BE ACHIEVED IN UNIT DETERMINATIONS WILL HAVE AN EQUAL DEGREE OF
PRECISION AND, HOPEFULLY,
WILL RECEIVE THE NECESSARY AND DESIRABLE EQUALITY OF EMPHASIS IN
REPRESENTATION PROCEEDINGS.
SUMMARIZING THE RESPONSIBILITIES OF THE ASSISTANT SECRETARY WHICH
FLOW FROM SECTION 10(B) OF THE ORDER: BEFORE THE ASSISTANT SECRETARY
MAY FIND THAT A PROPOSED UNIT IS APPROPRIATE FOR PURPOSES OF EXCLUSIVE
RECOGNITION UNDER THE ORDER, HE MUST MAKE AN AFFIRMATIVE DETERMINATION
THAT THE PROPOSED UNIT SATISFIES EQUALLY EACH OF THE THREE CRITERIA
CONTAINED IN SECTION 10(B). THAT IS, HE MUST CONSIDER EQUALLY THE
EVIDENCE GOING TO EACH OF THE THREE CRITERIA AND, AS REQUIRED BY SECTION
10(B), FIND APPROPRIATE ONLY UNITS WHICH NOT ONLY ENSURE A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST BUT ALSO PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS. IN MAKING THE AFFIRMATIVE
DETERMINATION THAT A PROPOSED BARGAINING UNIT SATISFIES EACH OF THE
THREE CRITERIA, THE ASSISTANT SECRETARY MUST FIRST DEVELOP AS COMPLETE A
RECORD AS POSSIBLE SOLICITING EVIDENCE FROM THE PARTIES AS NECESSARY,
AND THEN GROUND HIS DECISION UPON A CAREFUL, THOROUGH ANALYSIS OF
SUBSIDIARY FACTORS OR EVIDENTIARY CONSIDERATIONS WHICH PROVIDE A SHARP
DEGREE OF DEFINITION AND PRECISION TO EACH OF THE THREE CRITERIA.
FINALLY, AND MOST IMPORTANTLY, THE ASSISTANT SECRETARY MUST MAKE THE
NECESSARY AFFIRMATIVE DETERMINATIONS THAT A UNIT CLEARLY, CONVINCINGLY
AND EQUALLY SATISFIES EACH OF THE 10(B) CRITERIA IN RECOGNITION OF AND
IN A MANNER FULLY CONSISTENT WITH THE PURPOSES OF THE ORDER, INCLUDING
THE DUAL OBJECTIVES OF PREVENTING FURTHER FRAGMENTATION OF BARGAINING
UNITS AS WELL AS REDUCING EXISTING FRAGMENTATION, THEREBY PROMOTING A
MORE COMPREHENSIVE BARGAINING UNIT STRUCTURE. WE TURN NOW TO THE
APPLICATION OF THESE PRINCIPLES TO THE THREE CASES BEFORE THE COUNCIL.
THEY WILL BE TREATED SERIATIM.
A/SLMR NO. 461
AS OUTLINED ABOVE, IN THIS CASE THE ASSISTANT SECRETARY FOUND THAT A
UNIT OF ONE GEOGRAPHIC ELEMENT OF THE SAN FRANCISCO DCASR, NAMELY THE
SALT LAKE CITY DCASD, WAS AN APPROPRIATE UNIT FOR PURPOSES OF EXCLUSIVE
RECOGNITION UNDER THE ORDER. IN SO FINDING, HE REVIEWED THE EVIDENCE
RELATING TO CERTAIN SUBSIDIARY FACTORS OR INDICATORS OF COMMUNITY OF
INTEREST AND BASED UPON THESE EVIDENTIARY CONSIDERATIONS FOUND THAT THE
EMPLOYEES IN THE PETITIONED-FOR UNIT SHARED A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM OTHER EMPLOYEES OF THE
SAN FRANCISCO REGION. ADDITIONALLY, AS REQUIRED, THE ASSISTANT
SECRETARY FOUND THAT SUCH A UNIT WILL PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. HOWEVER, THIS LATTER CONCLUSION WAS
"BASED ON THE FOREGOING CONSIDERATIONS," THAT IS, THE EVIDENTIARY
CONSIDERATIONS WHICH SUPPORTED A FINDING THAT THE EMPLOYEES HAD
COMMUNITY OF INTEREST, RATHER THAN ON ANY EVIDENCE DIRECTLY BEARING ON
THE PROMOTION OF EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
WHILE THE ASSISTANT SECRETARY MADE AN AFFIRMATIVE FINDING THAT THE
PROPOSED UNIT MET ALL OF THE APPROPRIATE UNIT CRITERIA OF SECTION 10(B),
WE MUST CONCLUDE THAT IN MAKING THAT FINDING HE DID NOT FULLY MEET HIS
OBLIGATIONS UNDER THE ORDER. IN THIS REGARD, AS WE HAVE INDICATED, IT
IS THE RESPONSIBILITY OF THE ASSISTANT SECRETARY TO DEVELOP AS COMPLETE
A RECORD AS POSSIBLE WITH REGARD TO EACH OF THE THREE CRITERIA,
SOLICITING EVIDENCE FROM THE PARTIES AS NECESSARY; TO GIVE FULL AND
CAREFUL CONSIDERATION TO ALL RELEVANT EVIDENCE IN THE RECORD; AND THEN
TO GROUND HIS DECISION UPON A CAREFUL, THOROUGH ANALYSIS OF EVIDENTIARY
CONSIDERATIONS OR FACTORS WHICH PROVIDE A SHARP DEGREE OF DEFINITION AND
PRECISION TO EACH OF THE THREE CRITERIA. WHERE THE ASSISTANT SECRETARY
FINDS A UNIT TO BE APPROPRIATE FOR PURPOSES OF EXCLUSIVE RECOGNITION, HE
MUST MAKE AN AFFIRMATIVE DETERMINATION THAT A UNIT EQUALLY SATISFIES
EACH OF THE 10(B) CRITERIA. FINALLY, AND MOST IMPORTANTLY, THE
ASSISTANT SECRETARY MUST DECIDE APPROPRIATE UNIT QUESTIONS CONSISTENT
WITH THE PURPOSES OF THE ORDER, INCLUDING THE POLICY OF PREVENTING AND
REDUCING FRAGMENTATION, THEREBY PROMOTING A MORE COMPREHENSIVE UNIT
STRUCTURE.
IN THIS CASE, WHILE THE ASSISTANT SECRETARY CLEARLY MET HIS
RESPONSIBILITIES IN DEVELOPING AND ANALYZING EVIDENCE PERTAINING TO THE
"COMMUNITY OF INTEREST" CRITERION AND IN MAKING AN AFFIRMATIVE FINDING
WITH RESPECT TO THAT CRITERION, WE CONCLUDE THAT HE FAILED TO MEET THESE
RESPONSIBILITIES WITH RESPECT TO THE CRITERIA OF "EFFECTIVE DEALINGS"
AND "EFFICIENCY OF AGENCY OPERATIONS." FIRST, A REVIEW OF THE RECORD
REVEALS THAT THE ASSISTANT SECRETARY FAILED TO MAKE AN INTENSIVE EFFORT
TO DEVELOP AS COMPLETE A RECORD AS POSSIBLE WITH REGARD TO THE CRITERIA
OF "EFFECTIVE DEALINGS" AND "EFFICIENCY OF AGENCY OPERATIONS,"
SOLICITING EVIDENCE FROM THE PARTIES AS NECESSARY. /5/ WHILE THE
TESTIMONY AND ARGUMENTS ADVANCED BY THE ACTIVITY AS TO WHY THE PROPOSED
DCASD UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS MAY NOT, IN THE ASSISTANT SECRETARY'S VIEW, HAVE PROVIDED HIM
WITH A SUFFICIENT BASIS ON WHICH TO MAKE A DETERMINATION, /6/ THE
DEVELOPMENT OF SUCH EVIDENCE DOES NOT STOP WITH THE PRESENTATION BY THE
PARTIES. ALTHOUGH, AS WE STATED IN TULSA AFS, THE PARTIES ARE
RESPONSIBLE FOR PROVIDING THE ASSISTANT SECRETARY WITH ALL RELEVANT
INFORMATION WITHIN THEIR KNOWLEDGE AND POSSESSION, WE EMPHASIZED IN THAT
DECISION THAT THE ASSISTANT SECRETARY, IN CARRYING OUT HIS
RESPONSIBILITY TO DECIDE APPROPRIATE UNIT QUESTIONS, MUST ACTIVELY
SOLICIT SUCH INFORMATION AND DEVELOP THE EVIDENCE NECESSARY TO ENABLE
HIM TO MAKE A FULLY-INFORMED JUDGMENT AS TO WHETHER THE PROPOSED UNIT
WILL SATISFY EACH OF THE THREE 10(B) CRITERIA. WE CONCLUDE THAT THE
ASSISTANT SECRETARY DID NOT MEET THAT RESPONSIBILITY IN A/SLMR NO. 461.
FURTHERMORE, AS TO THE CONTENTIONS AND SUPPORTING EVIDENCE WHICH WERE
PUT FORWARD BY THE ACTIVITY REGARDING THESE TWO CRITERIA, THE ASSISTANT
SECRETARY FAILED TO GIVE SUCH CONTENTIONS AND EVIDENCE FULL AND CAREFUL
CONSIDERATION. INDEED, HIS ONLY CONSIDERATION WAS IN A FOOTNOTE WHEREIN
HE REJECTED THE ACTIVITY'S CONTENTION THAT A LESS THAN REGIONWIDE UNIT
WOULD LIMIT THE SCOPE OF NEGOTIATIONS SOLELY TO THOSE MATTERS WITHIN THE
DELEGATED AUTHORITY OF THE COMMANDER OF THE DISTRICT OFFICE. /7/
SECOND, THE ASSISTANT SECRETARY'S DECISION WAS NOT BASED UPON A
CAREFUL, THOROUGH ANALYSIS OF EVIDENTIARY CONSIDERATIONS OR FACTORS
WHICH PROVIDE A SHARP DEGREE OF DEFINITION AND PRECISION TO THE
"EFFECTIVE DEALINGS" AND "EFFICIENCY OF AGENCY OPERATIONS" CRITERIA.
INDEED, THERE WAS NO DISCUSSION OF SUCH EVIDENTIARY CONSIDERATIONS OR
FACTORS. INSTEAD, THE TREATMENT OF THESE TWO CRITERIA AMOUNTED TO
LITTLE MORE THAN A CONCLUSIONARY STATEMENT BASED SOLELY UPON EVIDENTIARY
CONSIDERATIONS WHICH HAS BEEN RELIED UPON TO SUPPORT THE FINDINGS OF A
COMMUNITY OF INTEREST.
WHILE WE REALIZE THAT CERTAIN CONSIDERATIONS TRADITIONALLY DISCUSSED
IN THE CONTEXT OF COMMUNITY OF INTEREST CAN ALSO BE RELEVANT IN
ASCERTAINING WHETHER A PROPOSED UNIT WOULD PROMOTE EFFECTIVE DEALINGS OR
EFFICIENCY OF AGENCY OPERATIONS (E.G., SUPERVISORY HIERARCHY AND
UNIFORMITY OF PERSONNEL POLICIES), OTHER, QUITE DIFFERENT CONSIDERATIONS
ALSO APPLY. AS WE STATED IN TULSA AFS, /8/ THERE IS A NEED FOR A
SHARPER DEGREE OF DEFINITION TO THE CRITERIA OF EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS AND THE ASSISTANT SECRETARY SHOULD
DEVELOP SUBSIDIARY FACTORS OR INDICATORS WHICH WILL SERVE AS GUIDELINES
IN DETERMINING EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
RATHER THAN RELYING SOLELY ON THE "FOREGOING CONSIDERATIONS," THE
ASSISTANT SECRETARY WAS REQUIRED TO EXAMINE THE VERY KIND OF TESTIMONY
AND CONTENTIONS PUT FORWARD BY THE AGENCY (E.G., MORE EFFICIENT USE OF
NEGOTIATION RESOURCES DERIVED FROM SINGLE REGIONWIDE NEGOTIATIONS RATHER
THAN A MULTIPLICITY OF NEGOTIATIONS IN SEGMENTS OF THE REGION), AS WELL
AS THE WIDE RANGE OF OTHER CONSIDERATIONS RAISED BY THE FACTS OF THE
CASE. IN DEVELOPING SUCH SUBSIDIARY FACTORS OR EVIDENTIARY
CONSIDERATIONS, WHICH MORE PRECISELY DEFINE WHAT IS MEANT BY PROMOTING
EFFECTIVE DEALINGS, THE ASSISTANT SECRETARY MIGHT WELL CONSIDER IN THE
CIRCUMSTANCES OF THIS CASE SUCH MATTERS AS THE LOCUS AND SCOPE OF
AUTHORITY OF THE RESPONSIBLE PERSONNEL OFFICE; THE LIMITATIONS ON THE
NEGOTIATION OF MATTERS OF CRITICAL CONCERN TO EMPLOYEES BECAUSE THE
CONCERNS OF SALT LAKE CITY DCASO EMPLOYEES MAY BE INSEPARABLE FROM THOSE
OF OTHER EMPLOYEES IN THE REGION; THE LIKELIHOOD THAT PEOPLE WITH
GREATER EXPERTISE IN NEGOTIATIONS WILL BE AVAILABLE IN A LARGER UNIT;
THE ACTUAL EXPERIENCE OF THIS AGENCY IN OTHER BARGAINING UNITS; AND THE
LEVEL AT WHICH LABOR RELATIONS POLICY IS SET IN THE AGENCY AND THE
EFFECTUATION OF AGENCY TRAINING IN THE IMPLEMENTATION OF A NUMBER OF
NEGOTIATED AGREEMENTS AND GRIEVANCE PROCEDURES COVERING EMPLOYEES
PERFORMING ESSENTIALLY THE SAME DUTIES. AS TO "EFFICIENCY OF AGENCY
OPERATIONS" AMONG THOSE FACTORS WHICH SHOULD BE CONSIDERED WOULD BE THE
BENEFITS TO BE DERIVED FROM A UNIT STRUCTURE WHICH BEARS SOME RATIONAL
RELATIONSHIP TO THE OPERATIONAL AND ORGANIZATIONAL STRUCTURE OF THE
AGENCY. THIS IS CERTAINLY NOT TO SAY THAT SECTION 10(B) REQUIRES THAT
EACH BARGAINING UNIT ALWAYS BE COEXTENSIVE WITH THE AGENCY'S VIEW OF HOW
IT CAN BEST ORGANIZE TO CARRY OUT ITS MISSION, BUT THE RELATIONSHIP
BETWEEN THE PROPOSED BARGAINING UNIT AND THE OPERATIONAL AND
ORGANIZATIONAL STRUCTURE OF THE AGENCY SHOULD BE GIVEN SUBSTANTIAL
WEIGHT IN ASCERTAINING WHETHER THE UNIT WILL PROMOTE EFFICIENCY OF
AGENCY OPERATIONS. IN THE INSTANT CASE, FOR EXAMPLE, WHILE THE
ASSISTANT SECRETARY RELIED IN PART ON THE FACT THAT THE SALT LAKE CITY
DCASD EMPLOYEES SHARE DISTRICTWIDE SUPERVISION, HE APPEARS TO HAVE GIVEN
NO WEIGHT TO THE FACT THAT THOSE EMPLOYEES SHARE A COMMON SUPERVISORY
STRUCTURE WITH ALL EMPLOYEES IN THE REGION AND ENJOY A COMMONALITY OF
MISSION, PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING
CONDITIONS WITH ALL EMPLOYEES OF THE REGION.
THIRD, IN SIMPLY CONCLUDING THAT THE PROPOSED UNIT WILL PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF OPERATIONS BASED SOLELY UPON
EVIDENTIARY CONSIDERATIONS WHICH HAD BEEN RELIED UPON TO SUPPORT THE
FINDING OF A COMMUNITY OF INTEREST, THE ASSISTANT SECRETARY FAILED TO
GIVE EQUAL WEIGHT TO ALL THREE CRITERIA.
FINALLY, THERE IS THE REQUIREMENT THAT THE ASSISTANT SECRETARY DECIDE
APPROPRIATE UNIT QUESTIONS CONSISTENT WITH THE POLICY OF THE ORDER OF
PREVENTING AND REDUCING FRAGMENTATION IN THE BARGAINING UNIT STRUCTURE
OF THE FEDERAL LABOR-MANAGEMENT RELATIONS PROGRAM. THE ASSISTANT
SECRETARY'S DECISION FINDING APPROPRIATE A UNIT LIMITED TO THE SALT LAKE
CITY DCASD IS CLEARLY CONTRARY TO THAT POLICY IN THAT HIS DECISION TENDS
TO FOSTER AND PROMOTE FRAGMENTATION. THE SAN FRANCISCO DCASR IS A
SINGLE ORGANIZATIONAL ELEMENT OF THE AGENCY WITH A CHAIN OF COMMAND
HEADED BY THE REGIONAL COMMANDER, RUNNING DOWN THROUGH ALL OF THE
COMPONENT ELEMENTS. WITH THE EXCEPTION OF THE DCASO IN PORTLAND WHICH
REPORTS THROUGH THE DCASD IN SEATTLE, ALL ELEMENTS OF THE REGION REPORT
DIRECTLY TO DCASD HEADQUARTERS. ALL EMPLOYEES OF THE REGION PERFORM
THEIR DUTIES PURSUANT TO POLICIES AND PROCEDURES ESTABLISHED BY THE
REGIONAL HEADQUARTERS STAFF, AND THE EMPLOYEES WITHIN THE REGION ARE
SUBJECT TO UNIFORM PERSONNEL POLICIES AND JOB BENEFITS. THE DCASR'S
CIVILIAN PERSONNEL OFFICE, LOCATED AT HEADQUARTERS, HAS THE
RESPONSIBILITY FOR SERVICING ALL COMPONENTS WITHIN THE REGION. THE
REGION ENCOMPASSES AN ORGANIZATIONAL STRUCTURE OF AN AGENCY WHICH IS
FUNCTIONALLY INTEGRATED. IT HAS BEEN ESTABLISHED IN THIS MANNER TO
ACCOMPLISH ITS MISSION. ITS EMPLOYEES THUS SHARE A COMMONALITY OF
MISSION, ORGANIZATION AND PERSONNEL POLICIES AND PRACTICES AND MATTERS
AFFECTING WORKING CONDITIONS.
THERE IS NO QUESTION THAT IF THE UNION SOUGHT RECOGNITION IN A
REGIONWIDE UNIT, IT WOULD MEET ALL OF THE SECTION 10(B) CRITERIA AND,
MORE IMPORTANTLY, WOULD BE CONSISTENT WITH THE ORDER'S POLICY OF
PROMOTING A MORE COMPREHENSIVE BARGAINING UNIT STRUCTURE. AGAINST THIS
BACKDROP, THE AFGE PETITIONED FOR A SINGLE PORTION OF THE ORGANIZATIONAL
AND FUNCTIONAL WHOLE, THE SALT LAKE CITY DCASD, A UNIT OF APPROXIMATELY
77 EMPLOYEES OUT OF A TOTLE OF APPROXIMATELY 1,250 ELIGIBLE EMPLOYEES IN
THE REGION. IN CONCLUDING THAT THESE EMPLOYEES SHARED A COMMUNITY OF
INTEREST WITH EACH OTHER, THE ASSISTANT SECRETARY RELIED UPON THOSE
FACTORS WHICH, IN HIS VIEW, REFLECTED SOME DEGREE OF SEPARATION BETWEEN
THESE EMPLOYEES AND THE REMAINING EMPLOYEES IN THE DCASR. IN DOING SO,
HE FAILED TO GIVE PROPER RECOGNITION TO THE SINGLE ORGANIZATIONAL
STRUCTURE OF THE REGION, ITS CHAIN OF COMMAND AND AUTHORITY, THE UNIFORM
PERSONNEL POLICIES AND PRACTICES WITHIN THE DCASR, AND THE EXISTENCE OF
A SINGLE CIVILIAN PERSONNEL OFFICE WITHIN THE DCASR. AS A RESULT, THE
UNIT STRUCTURE WHICH HIS DECISION PROMOTES WITHIN THE SAN FRANCISCO
DCASR RESULTS IN ARTIFICIAL DISTINCTIONS BETWEEN GROUPS OF EMPLOYEES
WHOSE MISSION AND FUNCTIONS, SUPERVISORY STRUCTURE AND CONDITIONS OF
EMPLOYMENT ARE IDENTICAL. MOREOVER, FINDING SUCH A UNIT APPROPRIATE
LEFT THE REMAINDER OF THE REGION FOR FURTHER PIECEMEAL ORGANIZING
EFFORTS, THEREBY RESULTING IN A FRAGMENTED BARGAINING UNIT STRUCTURE, AS
ACTUALLY SUBSEQUENTLY OCCURRED HEREIN.
IN SUMMARY, IN THE CIRCUMSTANCES OF THIS CASE AS REFLECTED IN THE
RECORD BEFORE US, EQUAL APPLICATION OF THE THREE CRITERIA IN SECTION
10(B) AND THE RESULTING CONSISTENCY WITH THE PURPOSE OF THE ORDER WOULD
DICTATE A FINDING THAT A UNIT LIMITED TO THE SALT LAKE CITY DCASD IS NOT
AN APPROPRIATE UNIT FOR PURPOSES OF EXCLUSIVE RECOGNITION UNDER THE
ORDER. /9/
A/SLMR NO. 559
THE ASSISTANT SECRETARY, AS OUTLINED ABOVE, IN THIS CASE FOUND
APPROPRIATE A UNIT COMPOSED OF THE EMPLOYEES IN DCASR HEADQUARTERS AND
THE FIVE DCASO'S, ALL IN THE SAN FRANCISCO BAY AREA, ALONG WITH THE
HAWAII RESIDENCY OFFICE. AFTER REVIEWING AT LENGTH THE ORGANIZATIONAL
AND WORK ENVIRONMENT OF THE REGION AND ITS COMPONENT PARTS, HE FOUND
THAT THERE WAS A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AMONG THE
EMPLOYEES IN THE UNIT FOUND APPROPRIATE, NOTING SPECIFICALLY THAT SUCH
EMPLOYEES SHARE A COMMON MISSION AND ARE COVERED BY THE SAME PERSONNEL
AND LABOR RELATIONS POLICIES; THAT THERE ARE SIMILAR JOB
CLASSIFICATIONS IN EACH OF THE COMPONENTS WITHIN THE HEADQUARTERS, THE
FIVE DCASO'S AND THE HAWAII RESIDENCY OFFICE; THAT THERE HAVE BEEN
REASSIGNMENTS TO AND FROM THE REGIONAL HEADQUARTERS AND THE DCASO'S;
AND THAT THERE IS EMPLOYEE CONTACT BETWEEN HEADQUARTERS AND THE DCASO'S.
WHILE THE ASSISTANT SECRETARY AGAIN MADE AN AFFIRMATIVE FINDING THAT
THE PROPOSED UNIT MET ALL OF THE APPROPRIATE UNIT CRITERIA OF SECTION
10(B), WE MUST CONCLUDE THAT IN MAKING THAT FINDING HE DID NOT FULLY
MEET THOSE OBLIGATIONS, OUTLINED PREVIOUSLY HEREIN, WHICH THE ORDER
IMPOSES UPON HIM. IN THIS CASE, WHILE THE ASSISTANT SECRETARY MET HIS
RESPONSIBILITIES IN DEVELOPING AND ANALYZING EVIDENCE PERTAINING TO THE
"COMMUNITY OF INTEREST" CRITERION AND IN MAKING AN AFFIRMATIVE FINDING
WITH RESPECT TO THAT CRITERION, /10/ WE CONCLUDE THAT HE FAILED TO MEET
THOSE RESPONSIBILITIES WITH RESPECT TO THE CRITERIA OF "EFFECTIVE
DEALINGS" AND "EFFICIENCY OF AGENCY OPERATIONS." FIRST, A REVIEW OF THE
RECORD REVEALS THAT THE ASSISTANT SECRETARY FAILED TO MAKE AN
AFFIRMATIVE EFFORT TO DEVELOP AS COMPLETE A RECORD AS POSSIBLE WITH
REGARD TO THE CRITERIA OF "EFFECTIVE DEALINGS" AND "EFFICIENCY OF AGENCY
OPERATIONS. /11/ FURTHERMORE, AS TO THE CONTENTIONS AND SUPPORTING
EVIDENCE WHICH WERE PUT FORWARD BY THE ACTIVITY REGARDING THESE TWO
CRITERIA, THE ASSISTANT SECRETARY FAILED TO GIVE SUCH TESTIMONY
APPROPRIATE AND ADEQUATE CONSIDERATION.
AS TO WHETHER THE UNIT SOUGHT IN A/SLMR NO. 559 WOULD PROMOTE
EFFICIENCY OF AGENCY OPERATIONS, THE ASSISTANT SECRETARY, RELYING ON
COUNCIL NEGOTIABILITY DECISIONS /12/ ON THE MEANING OF SECTION 12(B)(4),
/13/ CONCLUDED THAT MORE THAN COST FACTORS SHOULD BE INVOLVED IN MAKING
SUCH DETERMINATIONS. AS PREVIOUSLY INDICATED, HE STATED:
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 ORAGNIZATION CAN RESULT IN IMPROVED EFFICIENCY OF AGENCY
OPERATIONS DESPITE INCREASED
COST FACTORS. (FOOTNOTE OMITTED.)
BASED ON THESE CONSIDERATIONS, THE ASSISTANT SECRETARY CONCLUDED THAT
THE PROPOSED UNIT WOULD PROMOTE EFFICIENCY OF AGENCY OPERATIONS,
STRESSING THAT THE UNIT WOULD ENCOMPASS THE EMPLOYEES WITHIN THE SAME
COMMUTING AREA AND WOULD INCLUDE THE HAWAII RESIDENCY OFFICE WHICH
OTHERWISE MIGHT BE FRAGMENTED. /14/ THE ASSISTANT SECRETARY CONCLUDED
THAT THE ESTABLISHMENT OF SUCH A UNIT "COULD RESULT" IN ACTUAL ECONOMIC
SAVINGS AND INCREASED PRODUCTIVITY DUE TO THE HOMOGENEITY OF ITS
COMPOSITION.
WHILE THE ASSISTANT SECRETARY REACHED A CONCLUSION AS TO WHETHER THE
PROPOSED UNIT WOULD PROMOTE THE EFFICIENCY OF AGENCY OPERATIONS, IN OUR
VIEW, HE FAILED PROPERLY TO CONSIDER THE RELEVANT TESTIMONY AND
ARGUMENTS ADVANCED BY THE AGENCY AND, IN EFFECT, THEREBY FAILED TO GIVE
THE REQUIRED EQUAL WEIGHT TO THIS CRITERION. AT THE OUTSET, THE
ASSISTANT SECRETARY FOUND THAT THE AGENCY'S VIEWS AS TO BOTH THIS
CRITERION AND THE CRITERION OF PROMOTING EFFECTIVE DEALINGS TO BE "AT
MOST, SPECULATIVE AND CONJECTURAL." SUCH A REJECTION OF THE AGENCY'S
VIEWS WAS INAPPROPRIATE AND A MISCONCEPTION OF THE NATURE OF THESE
CRITERIA. WE BELIEVE THAT INHERENT IN DETERMINING WHETHER OR NOT A
PROPOSED UNIT WILL PROMOTE THE EFFICIENCY OF AGENCY OPERATIONS IS THE
NEED TO ANTICIPATE THE IMPACT OF A GIVEN UNIT STRUCTURE ON THE AGENCY'S
OPERATIONS. JUST AS THE ASSISTANT SECRETARY CONSIDERED ECONOMIC SAVINGS
AND INCREASED PRODUCTIVITY WHICH "COULD RESULT," THE ASSISTANT SECRETARY
MUST ALSO CONSIDER THE COSTS AND INEFFICIENT USE OF RESOURCES THAT, IN
MANAGEMENT'S OPINION, "COULD RESULT" FROM SUCH A UNIT STRUCTURE. THE
SPECULATIVE AND CONJECTURAL NATURE OF A CONTENTION, IN THESE
CIRCUMSTANCES, DOES NOT IN AND OF ITSELF RENDER THE CONTENTION WITHOUT
MERIT.
AS TO THE SPECIFICS OF THE AGENCY'S CONTENTIONS, THE ASSISTANT
SECRETARY STATED:
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 . . . 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, AND THAT IT WOULD BE A HARDSHIP ON HIS OFFICE IF SEVERAL
AGREEMENTS WERE REQUIRED
BECAUSE THIS WOULD REQUIRE EXPENDITURES 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. (FOOTNOTE OMITTED.)
IN OUR VIEW, RATHER THAN BEING REJECTED, IN PART, AS "SPECULATIVE,"
THE CONTENTIONS OF THE AGENCY WERE VALID CONSIDERATIONS TO BE WEIGHED IN
DETERMINING WHETHER THE PROPOSED UNIT WOULD PROMOTE EFFICIENCY OF AGENCY
OPERATIONS. AS WE HAVE INDICATED, A POLICY OF THE ORDER IS THE
PROMOTION OF MORE COMPREHENSIVE BARGAINING UNITS. HENCE, THE ACTIVITY'S
CONTENTION THAT A REGIONWIDE UNIT OF EMPLOYEES PERFORMING THE SAME JOBS
IN AN ORGANIZATION WITH THE SAME MISSION AND SUBJECT TO THE SAME
PERSONNEL POLICIES AND SUPERVISION WOULD DO MORE TO PROMOTE EFFICIENCY
OF AGENCY OPERATIONS WAS CONSISTENT WITH THE PURPOSES OF THE ORDER.
SIMILARLY, WHILE NOT DISPOSITIVE, THE EFFICIENT USE OF AGENCY
LABOR-MANAGEMENT RELATIONS AND FINANCIAL RESOURCES IS A VALID FACTOR IN
DETERMINING EFFICIENCY OF AGENCY OPERATIONS.
WE DO NOT AGREE WITH EITHER THE ASSISTANT SECRETARY'S CONCLUSION THAT
MORE THAN COST FACTORS ARE INVOLVED IN A DETERMINATION OF THE PROMOTION
OF EFFICIENCY OF AGENCY OPERATIONS, OR HIS CONCLUSION THAT THE BENEFITS
RESULTING FROM EMPLOYEE REPRESENTATION BY A LABOR ORGANIZATION CAN
RESULT IN IMPROVED EFFICIENCY OF AGENCY OPERATIONS. HOWEVER, THE
ACCORDING OF EQUAL WEIGHT TO THE EFFICIENCY OF AGENCY OPERATIONS
CRITERIA REQUIRES CAREFUL CONSIDERATION OF THE AGENCY'S REASONED VIEW OF
THE IMPACT OF THE PROPOSED UNIT ON THE EFFICIENCY OF ITS OPERATIONS.
/15/
IN FINDING THAT THE ALTERNATIVE UNIT SOUGHT WOULD PROMOTE EFFECTIVE
DEALINGS, THE ASSISTANT SECRETARY NOTED THAT THE UNIT WOULD PROMOTE
EFFECTIVE DEALINGS TO THE EXTENT THAT THE INDIVIDUALS MOST CONCERNED
WITH LABOR-MANAGEMENT RELATIONS, FISCAL MATTERS AND THE DIRECTION OF
OPERATIONS ARE LOCATED ORGANIZATIONALLY WITHIN THE UNIT FOUND
APPROPRIATE. THEREAFTER, RELYING ON THE AMENDMENTS TO SECTION 11(A) OF
THE ORDER IN E.O. 11838, /16/ THE ASSISTANT SECRETARY STATED:
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.
THE ASSISTANT SECRETARY'S RELIANCE ON THE RECENT AMENDMENTS TO
SECTION 11(A) TO SUPPORT HIS FINDING THAT THE UNIT WOULD PROMOTE
EFFECTIVE DEALINGS IS IN ERROR. AS STATED ABOVE IN FOOTNOTE 7, THE
COUNCIL, IN ITS DECISION IN DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT
ADMINISTRATION SERVICES REGION (DCASR), CLEVELAND, OHIO, DEFENSE
CONTRACT ADMINISTRATION SERVICES OFFICES (DCASO'S), AKRON, OHIO AND
COLUMBUS, OHIO, A/SLMR NO. 372, FLRC NO. 74A-41 (AUG. 13, 1975), REPORT
NO. 80, EMPHASIZED:
(A)S INDICATED IN SECTION V.1. OF THE REPORT ACCOMPANYING E.O. 11838,
THE CHANGES IN
SECTION 11(A) OF THE ORDER WERE INTENDED TO "COMPLEMENT" THE
RECOMMENDATIONS OF THE COUNCIL
RELATING TO THE CONSOLIDATION OF BARGAINING UNITS. THE PURPOSE OF
THOSE RECOMMENDATIONS
(WHICH WERE ADOPTED BY THE PRESIDENT) WAS PRINCIPALLY TO REDUCE THE
UNIT FRAGMENTATION THAT
HAD PREVIOUSLY DEVELOPED AND TO ENCOURAGE THE CREATION OF MORE
COMPREHENSIVE BARGAINING UNITS
IN THE INTEREST OF THE ENTIRE PROGRAM. (FOOTNOTE OMITTED.) /17/
WHILE THE CHANGES IN SECTION 11(A) WERE INTENDED TO EXPAND THE SCOPE
OF BARGAINING BY ELIMINATING UNNECESSARY CONSTRUCTIONS ON MEANINGFUL
NEGOTIATIONS WHICH HAD BEEN IMPOSED BY HIGHER LEVEL AGENCY REGULATIONS
NOT CRITICAL TO EFFECTIVE AGENCY MANAGEMENT OR THE PUBLIC INTEREST, THE
CHANGES IN SECTION 11(A) WERE ALSO INTENDED, AS STATED IN FLRC NO.
74A-41, TO COMPLEMENT THE RECOMMENDATIONS OF THE COUNCIL RELATING TO
REDUCTION OF UNIT FRAGMENTATION, WHICH REDUCTION WOULD ALSO SERVE TO
EXPAND THE SCOPE OF BARGAINING. THE ASSISTANT SECRETARY'S RELIANCE ON
THE 11(A) CHANGES TO SUPPORT A FINDING OF A LESS COMPREHENSIVE UNIT IS
THEREFORE TOTALLY INAPPROPRIATE. WHILE THE CHANGES TO SECTION 11(A)
WERE INTENDED TO LESSEN THE IMPACT OF CERTAIN AGENCY REGULATIONS UPON
THE SCOPE OF BARGAINING, CONTRARY TO THE CONCLUSIONS OF THE ASSISTANT
SECRETARY, THEY WERE NOT INTENDED TO REFLECT A POLICY OF ENCOURAGING THE
ESTABLISHMENT OF BARGAINING UNITS AT LOWER ORGANIZATIONAL LEVELS WITHIN
AN AGENCY.
WHILE IT IS TRUE THAT UNITS MAY PROMOTE EFFECTIVE DEALINGS AND BE
APPROPRIATE UNDER SECTION 10(B) EVEN IF ESTABLISHED AT LOWER AGENCY
ORGANIZATIONAL LEVELS, IN OUR VIEW IT IS CLEAR THAT, GENERALLY,
EFFECTIVE DEALINGS CAN BE BETTER ACHIEVED IN MORE COMPREHENSIVE UNITS.
AS WE HAVE INDICATED, NEGOTIATIONS COVERING MORE COMPREHENSIVE UNITS
PERMIT THE PARTIES TO ADDRESS A WIDER RANGE OF MATTERS OF CRITICAL
CONCERN TO GREATER NUMBERS OF EMPLOYEES. FOR EXAMPLE, EMPLOYEES OF THE
ENTIRE REGION HEREIN WOULD HAVE IDENTICAL CONCERNS AS TO SUCH MATTERS AS
MERIT STAFFING PROCEDURES, AREAS OF CONSIDERATION, REDUCTION-IN-FORCE
PROCEDURES, AND COMPETITIVE AREAS. MOREOVER, NEGOTIATIONS IN LESS
FRAGMENTED BARGAINING UNIT STRUCTURES ESTABLISHED AT HIGHER
ORGANIZATIONAL LEVELS PERMIT UNIONS AND AGENCIES TO ALLOCATE THEIR
MANPOWER RESOURCES AND SEND TO THE BARGAINING TABLE MORE EXPERIENCED AND
SKILLED NEGOTIATORS WHO SHOULD DO A MORE EFFICIENT JOB OF REACHING A
SATISFACTORY AGREEMENT.
THE INSTANT DECISION OF THE ASSISTANT SECRETARY CLEARLY REFLECTS A
DESIRE THAT NEGOTIATIONS BE CONDUCTED AT THE LOWEST ORGANIZATIONAL
LEVELS POSSIBLE AND, HENCE, AS CLOSE AS POSSIBLE TO THE PARTICULAR
EMPLOYEES WHO WILL BE AFFECTED BY THE OUTCOME OF THE NEGOTIATIONS;
HOWEVER, SUCH A DESIRE CANNOT BE USED AS A RATIONALE FOR CREATING UNITS
IN A MANNER INCONSISTENT WITH THE PURPOSES OF THE ORDER. SUCH
REASONING, CARRIED TO AN EXTREME AS HERE, RESULTS IN THE FRAGMENTATION
OF UNITS CONTRARY TO THE POLICIES SOUGHT TO BE SERVED BY THE ORDER.
MOREOVER, WE DO NOT AGREE THAT THE RESOLUTION OF LOCAL CONCERNS IS
SACRIFICED BY THE CREATION OF MORE COMPREHENSIVE UNITS. TO THE EXTENT
THAT THERE MAY BE CONCERNS UNIQUE TO SOME EMPLOYEES WHICH ARE NOT SHARED
BY AN ENTIRE BROADER UNIT, THERE ARE OBVIOUS, WELL-RECOGNIZED WAYS THAT
THESE CONCERNS MAY BE ADDRESSED WITHIN THE PARAMETERS OF THE BARGAINING
RELATIONSHIP. AND WHILE A UNIT AT A LOWER ORGANIZATIONAL LEVEL MAY
PROVIDE A TEMPORARY VEHICLE TO ADDRESS LOCALIZED PROBLEMS, IN THE LONG
RUN, UNITS BROADER IN SCOPE WILL FACILITATE CONSIDERATION AND RESOLUTION
OF A GREATER RANGE OF CONCERNS COMMON TO EMPLOYEES AND WILL BETTER SERVE
THE INTERESTS OF BOTH THE EMPLOYEES AND THE AGENCIES. IT WAS TO ACHIEVE
THIS END THAT THE POLICIES OF THE ORDER WERE ADOPTED. THUS, THE
ASSISTANT SECRETARY'S CONTRARY UNIT DETERMINATION WAS INCONSISTENT WITH
THESE PURPOSES OF THE ORDER.
AS PREVIOUSLY STATED WITH RESPECT TO A/SLMR NO. 461, THE ASSISTANT
SECRETARY MUST DECIDE APPROPRIATE UNIT QUESTIONS CONSONANT WITH THE
POLICY OF THE ORDER OF PREVENTING AND REDUCING FRAGMENTATION IN THE
BARGAINING UNIT STRUCTURE OF THE FEDERAL LABOR-MANAGEMENT RELATIONS
PROGRAM. IN FINDING APPROPRIATE THE ALTERNATIVE UNIT SOUGHT IN THIS
CASE, THE ASSISTANT SECRETARY'S DECISION PLAINLY CONTRAVENES THAT POLICY
SINCE HIS DECISION TENDS TO FOSTER AND PROMOTE FRAGMENTATION. ON THE
OTHER HAND, FOR THE REASONS PREVIOUSLY DETAILED AT PAGE 14 ABOVE, THERE
IS NO QUESTION THAT A REGIONWIDE UNIT, IF ALONE SOUGHT, WOULD MEET ALL
OF THE SECTION 10(B) CRITERIA.
WHILE THE EMPLOYEES IN THE SAN FRANCISCO BAY AREA MAY HAVE, AS
DISCUSSED BY THE ASSISTANT SECRETARY, A COMMUNITY OF INTEREST WITH EACH
OTHER AND POSSIBLY SOME DEGREE OF SEPARATION FROM OTHER ELEMENTS BECAUSE
OF SEPARATE LOCAL SUPERVISION AND GEOGRAPHIC DISPERSION, THE
PETITIONED-FOR UNIT WOULD BE INCONSISTENT WITH THE SINGLE ORGANIZATIONAL
STRUCTURE OF THE REGION, ITS CHAIN OF COMMAND AND AUTHORITY, THE UNIFORM
PERSONNEL POLICIES AND PRACTICES WITHIN THE DCASR, AND THE EXISTENCE OF
A SINGLE CIVILIAN PERSONNEL OFFICE. THE UNIT STRUCTURE, WHICH HIS
DECISION PROMOTES WITHIN THE SAN FRANCISCO DCASR, RESULTS IN ARTIFICIAL
DISTINCTIONS BETWEEN EMPLOYEES WHOSE MISSION AND FUNCTIONS, SUPERVISORY
STRUCTURE AND CONDITIONS OF EMPLOYEES ARE IDENTICAL. FURTHER, AS NOTED
WITH REGARD TO A/SLMR NO. 461, THERE IS NO QUESTION THAT IF THE UNION
SOUGHT RECOGNITION IN A REGIONWIDE UNIT, IT WOULD MEET ALL OF THE
SECTION 10(B) CRITERIA AND, MORE IMPORTANTLY, WOULD BE CONSISTENT WITH
THE ORDER'S POLICY OF PROMOTING A MORE COMPREHENSIVE BARGAINING UNIT
STRUCTURE. MOREOVER, FINDING SUCH A UNIT APPROPRIATE LEFT THE REMAINDER
OF THE REGION FOR FURTHER PIECEMEAL ORGANIZING EFFORTS, THEREBY
RESULTING IN A FRAGMENTED BARGAINING UNIT STRUCTURE, AS ACTUALLY
SUBSEQUENTLY OCCURRED HEREIN.
IN CONCLUSION, THE ASSISTANT SECRETARY'S FINDING THAT THE ALTERNATIVE
UNIT SOUGHT WOULD PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS WAS BASED UPON CONSIDERATIONS WHICH DID NOT PROPERLY PROVIDE
A SHARP DEGREE OF DEFINITION AND PRECISION TO THESE TWO CRITERIA.
INDEED, THE CONSIDERATIONS UPON WHICH THE ASSISTANT SECRETARY RELIED
WERE NOT IMPLEMENTIVE OF AND WERE NOT CONSISTENT WITH THOSE CRITERIA.
AS A RESULT, THE ASSISTANT SECRETARY FAILED PROPERLY TO GIVE EQUAL
WEIGHT TO THESE CRITERIA IN HIS DECISION.
IN SUMMARY, IN THE CIRCUMSTANCES OF THIS CASE AS REFLECTED IN THE
RECORD BEFORE US, EQUAL APPLICATION OF THE THREE CRITERIA IN SECTION
10(B) AND THE RESULTING CONSISTENCY WITH THE PURPOSES OF THE ORDER,
WOULD DICTATE A FINDING THAT THE ALTERNATIVE UNIT SOUGHT HEREIN IS NOT
AN APPROPRIATE UNIT FOR THE PURPOSES OF EXCLUSIVE RECOGNITION UNDER THE
ORDER.
A/SLMR NO. 564
IN THIS CASE, THE ASSISTANT SECRETARY FOUND THAT THE EMPLOYEES IN THE
PETITIONED-FOR UNIT, THE SEATTLE DCASD, INCLUDING THE PORTLAND DCASO,
SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND
DISTINCT FROM OTHER EMPLOYEES OF THE REGION. IN RESPONSE TO THE
ACTIVITY'S CLAIM THAT SUCH A UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS
OR EFFICIENCY OF AGENCY OPERATIONS, THE ASSISTANT SECRETARY FOUND THAT
THE ACTIVITY TOOK THE IDENTICAL POSITION THAT IT TOOK IN A/SLMR NO. 461;
HE REJECTED THE ACTIVITY'S POSITION PARTLY ON THE BASIS OF THE
CIRCUMSTANCES RECITED IN A/SLMR NO. 559 AND HIS REASONING THEREIN. THE
ASSISTANT SECRETARY CONCLUDED:
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 WHERE LESS THAN
REGION-WIDE UNITS HAVE
BEEN RECOGNIZED OR CERTIFIED AND WHERE THERE CURRENTLY EXIST
NEGOTIATED AGREEMENTS, I FIND
THAT THE PETITIONED-FOR DISTRICT-WIDE UNIT WILL PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS. (FOOTNOTE OMITTED.)
WHILE THE ASSISTANT SECRETARY MADE AN AFFIRMATIVE FINDING THAT THE
PROPOSED UNIT MET ALL OF THE APPROPRIATE UNIT CRITERIA OF SECTION 10(B),
WE MUST AGAIN CONCLUDE THAT IN DOING SO HE DID NOT FULLY MEET THOSE
OBLIGATIONS, OUTLINED PREVIOUSLY HEREIN, WHICH THE ORDER IMPOSES UPON
HIM. SPECIFICALLY, A REVIEW OF THE RECORD REVEALS THAT THE ASSISTANT
SECRETARY FAILED TO MAKE AN AFFIRMATIVE EFFORT TO DEVELOP AS COMPLETE A
RECORD AS POSSIBLE WITH REGARD TO THE CRITERIA OF "EFFECTIVE DEALINGS"
AND "EFFICIENCY OF AGENCY OPERATIONS." /18/ WHILE THE TESTIMONY AND
ARGUMENTS ADVANCED BY THE ACTIVITY AS TO WHY THE PROPOSED UNIT WOULD NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS MAY NOT
HAVE PROVIDED THE ASSISTANT SECRETARY WITH A SUFFICIENT BASIS ON WHICH
TO MAKE A DETERMINATION, AS WE HAVE INDICATED, THE DEVELOPMENT OF SUCH
EVIDENCE DOES NOT STOP WITH THE PARTIES. IT IS THE RESPONSIBILITY OF
THE ASSISTANT SECRETARY TO DEVELOP AS COMPLETE A RECORD AS POSSIBLE WITH
REGARD TO EACH OF THE THREE CRITERIA, SOLICITING EVIDENCE FROM THE
PARTIES AS NECESSARY; HE DID NOT DO SO HERE.
WITH REGARD TO THE CIRCUMSTANCES WHICH HE PARTICULARLY NOTED IN
FINDING THAT THE UNIT SOUGHT WOULD PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS, THE ASSISTANT SECRETARY PLAINLY FAILED
TO MAKE AN AFFIRMATIVE DETERMINATION THAT THE UNIT EQUALLY SATISFIED
EACH OF THE 10(B) CRITERIA. AS WE INDICATED PREVIOUSLY, THE EXPERIENCE
OF AN AGENCY AND LABOR ORGANIZATION UNDER A GIVEN UNIT STRUCTURE MAY BE
CONSIDERED IN DETERMINING WHETHER A PETITIONED-FOR UNIT SATISFIES THE
THREE CRITERIA SET FORTH IN SECTION 10(B) OF THE ORDER. HOWEVER, THE
ASSISTANT SECRETARY MAY NOT RELY UPON "THE ABSENCE OF ANY SPECIFIC
COUNTERVAILING EVIDENCE . . . AS TO A LACK OF EFFECTIVE DEALINGS AND
EFFICIENCY OF OPERATIONS" IN OTHER EXISTING BARGAINING UNITS TO MAKE AN
AFFIRMATIVE FINDING REGARDING THESE CRITERIA IN A PROPOSED UNIT.
RATHER, AS WE HAVE PREVIOUSLY EMPHASIZED, IT IS THE RESPONSIBILITY OF
THE ASSISTANT SECRETARY TO DEVELOP AS COMPLETE A RECORD AS POSSIBLE WITH
REGARD TO EACH OF THE THREE CRITERIA, SOLICITING EVIDENCE FROM THE
PARTIES AS NECESSARY; TO GIVE FULL AND CAREFUL CONSIDERATION TO ALL
RELEVANT EVIDENCE IN THE RECORD; AND THEN TO GROUND HIS DECISION UPON A
CAREFUL, THOROUGH ANALYSIS OF EVIDENTIARY CONSIDERATIONS OR FACTORS
WHICH PROVIDE A SHARP DEGREE OF DEFINITION AND PRECISION TO EACH OF THE
CRITERIA. WHERE THE ASSISTANT SECRETARY FINDS A UNIT TO BE APPROPRIATE
FOR PURPOSES OF EXCLUSIVE RECOGNITION, HE MUST MAKE AN AFFIRMATIVE
DETERMINATION THAT A UNIT EQUALLY SATISFIES EACH OF THE 10(B) CRITERIA.
RELIANCE UPON A LACK OF EVIDENCE FAILS TO SATISFY THE REQUIREMENT IN THE
ORDER THAT THE ASSISTANT SECRETARY MAKE SUCH AN AFFIRMATIVE
DETERMINATION.
ACCORDINGLY, FOR THE REASONS FULLY DISCUSSED ABOVE IN REGARD TO THE
ASSISTANT SECRETARY'S DECISION IN A/SLMR NO. 559, WE MUST LIKEWISE
REJECT THE ASSISTANT SECRETARY'S RELIANCE UPON THAT DECISION IN REACHING
HIS DECISION IN A/SLMR NO. 564. IN SUMMARY, IN THE CIRCUMSTANCES OF
THIS CASE AS REFLECTED IN THE RECORD BEFORE US, EQUAL APPLICATION OF THE
THREE CRITERIA IN SECTION 10(B) AND THE RESULTING CONSISTENCY WITH THE
PURPOSE OF THE ORDER, WOULD DICTATE A FINDING THAT THE UNIT SOUGHT
HEREIN IS NOT AN APPROPRIATE UNIT FOR PURPOSES OF EXCLUSIVE RECOGNITION
UNDER THE ORDER. HOWEVER, AS NOTED WITH REGARD TO BOTH A/SLMR NO. 461
AND A/SLMR NO. 559, THERE IS NO QUESTION THAT IF THE UNION SOUGHT
RECOGNITION IN A REGIONWIDE UNIT, IT WOULD MEET ALL OF THE SECTION 10(B)
CRITERIA AND, MORE IMPORTANTLY, WOULD BE CONSISTENT WITH THE ORDER'S
POLICY OF PROMOTING A MORE COMPREHENSIVE UNIT STRUCTURE.
CONCLUSION
FOR THE FOREGOING REASONS, WE FIND THAT ASSISTANT SECRETARY'S
DECISION AND DIRECTION OF ELECTION IN EACH OF THE ABOVE-ENTITLED CASES
IS INCONSISTENT WITH THE PURPOSES OF THE ORDER. ACCORDINGLY, PURSUANT
TO SECTION 2411.18(B) OF THE COUNCIL'S RULES OF PROCEDURE, WE SET ASIDE
THE ASSISTANT SECRETARY'S DECISIONS AND REMAND THE CASES TO HIM FOR
ACTION CONSISTENT WITH OUR DECISION HEREIN.
IN THIS REGARD, WE HAVE BEEN ADMINISTRATIVELY ADVISED THAT THE
ASSISTANT SECRETARY CURRENTLY HAS UNDER CONSIDERATION A PETITION FOR
CONSOLIDATION OF UNITS REPRESENTED BY AFGE WITHIN THE DEFENSE SUPPLY
AGENCY, INCLUDING THE UNITS INVOLVED HEREIN. (ASSISTANT SECRETARY CASE
NO. 22-07578-UC). SHOULD THE ASSISTANT SECRETARY DETERMINE THAT A
CONSOLIDATED UNIT IS APPROPRIATE, IT WOULD NOT BE INCONSISTENT WITH THIS
DECISION TO INCLUDE THE UNITS INVOLVED HEREIN SUCH A CONSOLIDATED UNIT
BY REASON OF THE SPECIAL CIRCUMSTANCES HERE INVOLVED, INCLUDING THE FACT
THAT THE EMPLOYEES IN THESE UNITS HAVE PREVIOUSLY INDICATED THROUGH THE
ELECTION PROCESS THAT THEY WISH AFGE TO SERVE AS THEIR EXCLUSIVE
REPRESENTATIVE AND THE LENGTH OF TIME WHICH HAS ELAPSED SINCE THE
ELECTIONS. OF COURSE, IF A CONSOLIDATION ELECTION SHOULD BE HELD TO
DETERMINE WHETHER THE EMPLOYEES IN THE PROPOSED CONSOLIDATED UNIT WISH
TO BE REPRESENTED IN THAT UNIT, THE EMPLOYEES IN THE THREE UNITS
INVOLVED HEREIN WOULD HAVE THE OPTIONS ONLY OF BEING REPRESENTED IN THE
CONSOLIDATED UNIT OR BEING UNREPRESENTED-- UNLESS, OF COURSE, AFGE FILES
A SEPARATE PETITION SEEKING TO REPRESENT THE EMPLOYEES INVOLVED HEREIN
IN A REGIONWIDE UNIT WHICH, AS ALREADY INDICATED, WOULD BE APPROPRIATE.
BY THE COUNCIL.
HENRY B. FRAZIER, III
EXECUTIVE DIRECTOR
ISSUED: DECEMBER 30, 1976
/1/ 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., 1 FLRC 219 (FLRC NO. 71A-46 (NOV. 20,
1972), REPORT NO. 30).
/2/ SECTION 11(A) 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 GOOF 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 FOR WHICH A COMPELLING
NEED EXISTS UNDER CRITERIA ESTABLISHED BY THE FEDERAL LABOR RELATIONS
COUNCIL AND WHICH ARE
ISSUED AT THE AGENCY HEADQUARTERS LEVEL OR AT THE LEVEL OF A PRIMARY
NATIONAL SUBDIVISION; A
NATIONAL OR OTHER CONTROLLING AGREEMENT AT A HIGHER LEVEL IN THE
AGENCY; AND THIS ORDER . . .
/3/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975), AT 37.
/4/ DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION,
SOUTHWEST REGION, TULSA AIRWAY FACILITIES SECTOR, FLRC NO. 74A-28 (MAY
9, 1975), REPORT NO. 69.
/5/ A REVIEW OF THE RECORD INDICATES THAT, AS TO EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS, THE HEARING OFFICER ASKED A FEW
QUESTIONS CONCERNING THE DELEGATED AUTHORITY OF CERTAIN MANAGEMENT
OFFICIALS TO NEGOTIATE AND SIGN A COLLECTIVE BARGAINING AGREEMENT AND
ASKED AN AGENCY WITNESS ONLY THREE INSUBSTANTIAL QUESTIONS CONCERNING
WHETHER THE PROPOSED UNIT WOULD IMPAIR EFFICIENCY OF AGENCY OPERATIONS.
/6/ IN TESTIMONY BEFORE THE ASSISTANT SECRETARY'S HEARING OFFICER AND
IN ITS POSTHEARING BRIEF TO THE ASSISTANT SECRETARY, THE AGENCY
PRESENTED EVIDENCE REGARDING EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS AS WELL AS EVIDENCE REGARDING COMMUNITY OF INTEREST OF THE
EMPLOYEES INVOLVED. THE SAN FRANCISCO REGION CIVILIAN PERSONNEL OFFICER
TESTIFIED AT THE HEARING, AMONG OTHER THINGS, IN EFFECT, THAT IT WOULD
BE MORE EFFICIENT FOR THE REGION TO NEGOTIATE AND DEAL WITH THE
EXCLUSIVE REPRESENTATIVE OF EMPLOYEES IN A SINGLE REGIONWIDE UNIT RATHER
THAN WITH REPRESENTATIVES OF EMPLOYEES IN A MULTIPLICITY OF UNITS WITHIN
THE REGION. IN THIS REGARD, HE TESTIFIED IN EFFECT THAT THE SMALLER
SALT LAKE CITY UNIT WOULD, BY CREATING THE POSSIBILITY OF MULTIPLE UNITS
IN THE REGION, IMPAIR EFFICIENCY BY EXCEEDING THE CAPACITIES OF THE
AGENCY'S LIMITED LABOR-MANAGEMENT RELATIONS STAFF. IN ITS POSTHEARING
BRIEF TO THE ASSISTANT SECRETARY, THE AGENCY ARGUED, AMONG OTHER THINGS,
THAT THE SIZE AND COMPOSITION OF THE PROPOSED UNIT, THE POTENTIAL FOR
MEANINGFUL NEGOTIATIONS, AND THE AVAILABILITY OF PERSONNEL MANAGEMENT
RESOURCES ALL DEMONSTRATE THAT ONE REGIONWIDE UNIT WOULD MORE LIKELY
PROMOTE EFFICIENCY OF AGENCY OPERATIONS AND EFFECTIVE DEALINGS.
/7/ IN REJECTING THE AGENCY'S CONTENTION THAT THE CERTIFICATION OF A
LESS-THAN-REGIONWIDE UNIT WOULD LIMIT THE SCOPE OF NEGOTIATIONS SOLELY
TO THOSE MATTERS WITHIN THE DELEGATED DISCRETIONARY AUTHORITY OF THE
COMMANDER OF THE DISTRICT OFFICE, THE ASSISTANT SECRETARY RELIED ON HIS
DECISION IN A/SLMR NO. 372 WHEREIN HE HAD, IN TURN, RELIED ON THE
COUNCIL'S DECISION IN UNITED FEDERATION OF COLLEGE TEACHERS, LOCAL 1460
AND U.S. MERCHANT MARINE ACADEMY, 1 FLRC 211 (FLRC NO. 71A-15 (NOV. 20,
1972), REPORT NO. 30). HOWEVER, A/SLMR NO. 372 WAS SUBSEQUENTLY
REVIEWED BY THE COUNCIL IN DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT
ADMINISTRATION SERVICES REGION (DCASR), CLEVELAND, OHIO, DEFENSE
CONTRACT ADMINISTRATION SERVICES OFFICES (DCASO'S), AKRON, OHIO AND
COLUMBUS, OHIO, A/SLMR NO. 372, FLRC NO. 74A-41 (AUG. 13, 1975), REPORT
NO. 80. THE COUNCIL SET ASIDE THE ASSISTANT SECRETARY'S DECISION
THEREIN AND REMANDED THE CASE TO HIM. IN DOING SO, THE COUNCIL STATED,
AS TO THE ASSISTANT SECRETARY'S RELIANCE UPON MERCHANT MARINE AND AS TO
THE RELATIONSHIP OF THE AMENDMENTS TO SECTION 11(A) OF THE ORDER TO THE
PRINCIPLES ENUNCIATED IN MERCHANT MARINE:
TURNING TO THE INSTANT CASE (DSA, CLEVELAND), IT IS CLEAR THAT THE
ASSISTANT SECRETARY HAS
MISINTERPRETED AND MISAPPLIED THE MERCHANT MARINE DECISION. FOR
UNDER THE ORDER, AS PRESENTLY
EFFECTIVE, LABOR RELATIONS AND PERSONNEL POLICIES AS ESTABLISHED
(AND, OF COURSE, PUBLISHED)
BY THE DCASR HEADQUARTERS MAY PROPERLY SERVE TO BAR THE MATTER
CONCERNED FROM THE SCOPE OF
BARGAINING UNDER SECTION 11(A) OF THE ORDER. SINCE THESE MATTERS
WOULD THUS BE OUTSIDE THE
SCOPE OF BARGAINING AT THE DCASO LEVEL, DCASR, UNDER THE MERCHANT
MARINE DECISION, WOULD BE
UNDER NO OBLIGATION TO PROVIDE REPRESENTATIVES TO NEGOTIATE AND ENTER
INTO AGREEMENT ON SUCH
MATTERS AT THE DCASO LEVEL.
THUS, AS THE ASSISTANT SECRETARY, IN FINDING THE SEPARATE DCASO UNITS
APPROPRIATE IN THE
PRESENT CASE, RELIED IN PART ON AN ERRONEOUS INTERPRETATION AND
APPLICATION OF THE MERCHANT
MARINE DECISION, WE SHALL REMAND THE CASE TO HIM FOR RECONSIDERATION
AND DISPOSITION
CONSISTENT WITH OUR OPINION.
WE ARE MINDFUL IN THE ABOVE REGARD THAT UNDER THE AMENDMENTS TO
SECTION 11(A), ADOPTED IN
E.O. 11838 AND TO BECOME EFFECTIVE 90 DAYS AFTER THE COUNCIL ISSUES
THE CRITERIA FOR
DETERMINING "COMPELLING NEED," DCASR DIRECTIVES AS SUCH WOULD NOT
THEREAFTER SERVE TO LIMIT
THE SCOPE OF BARGAINING AT THE DCASO LEVEL-- BECAUSE DCASR APPEARS TO
BE A SUBDIVISION BELOW
THE LEVEL OF "AGENCY HEADQUARTERS" OR "THE LEVEL OF A PRIMARY
NATIONAL SUBDIVISION." HOWEVER,
THE ASSISTANT SECRETARY SHOULD CAREFULLY EXAMINE THE REGULATORY
FRAMEWORK OF DSA, INCLUDING
THE DCASR'S, WHICH PREVAILS AT THE TIME OF HIS RECONSIDERATION AND
THEN WEIGH THE IMPACT
THEREON OF MERCHANT MARINE AS PROPERLY INTERPRETED AND APPLIED TO THE
EXISTING CIRCUMSTANCES
IN ORDER THAT THE THREE CRITERIA IN SECTION 10(B) CAN BE PROPERLY
APPLIED. MOREOVER, IN SO
APPLYING MERCHANT MARINE, THE ASSISTANT SECRETARY SHOULD CAREFULLY
CONSIDER THAT THE
AMENDMENTS TO SECTION 11(A) AS ADOPTED IN E.O. 11838 WERE NOT
DESIGNED TO RENDER FRAGMENTED
UNITS APPROPRIATE.
IN THE ABOVE REGARD, AS INDICATED IN SECTION V.1. OF THE REPORT
ACCOMPANYING E.O. 11838,
THE CHANGES IN SECTION 11(A) OF THE ORDER WERE INTENDED TO
"COMPLEMENT" THE RECOMMENDATIONS OF
THE COUNCIL RELATING TO THE CONSOLIDATION OF BARGAINING UNITS. THE
PURPOSE OF THOSE
RECOMMENDATIONS (WHICH WERE ADOPTED BY THE PRESIDENT) WAS PRINCIPALLY
TO REDUCE THE UNIT
FRAGMENTATION THAT HAD PREVIOUSLY DEVELOPED AND TO ENCOURAGE THE
CREATION OF MORE
COMPREHENSIVE BARGAINING UNITS IN THE INTEREST OF THE ENTIRE PROGRAM.
(FOOTNOTE OMITTED.)
/8/ SEE PAGE 7 SUPRA.
/9/ IN THIS REGARD, WE NOTE, AS DID THE AGENCY IN TESTIMONY AND BRIEF
BEFORE THE ASSISTANT SECRETARY, THAT THE ASSISTANT SECRETARY EARLIER
CONSIDERED AND REJECTED AS INAPPROPRIATE VARIOUS LESS-THAN-REGIONWIDE
UNITS IN THE SAN FRANCISCO DCASR RANGING IN SIZE FROM 18 TO 686
EMPLOYEES. HE FOUND SUCH UNITS "WOULD ARTIFICALLY (SIC) DIVIDE AND
FRAGMENT . . . OPERATIONS, AND CANNOT BE REASONABLY EXPECTED TO PROMOTE
EFFECTIVE DEALINGS OR EFFICIENCY OF OPERATION." DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR), SAN FRANCISCO,
A/SLMR NO. 112 (NOV. 30, 1971), DECISION BY THE THEN ASSISTANT
SECRETARY. THIS PRECEDENTIAL DECISION WAS NEITHER DISCUSSED NOR EVEN
ADVERTED TO IN THE INSTANT CASE.
/10/ WE DO NOT HERE DECIDE THAT THE FACTORS RELIED UPON BY THE
ASSISTANT SECRETARY ESTABLISH A SEPARATE COMMUNITY OF INTEREST FOR THE
EMPLOYEES IN THE UNIT FOUND APPROPRIATE. INDEED, MANY OF THE FACTORS
RELIED UPON BY THE ASSISTANT SECRETARY INDICATE A COMMUNITY OF INTEREST
THAT IS REGIONWIDE IN SCOPE RATHER THAN LIMITED TO THE EMPLOYEES IN THE
UNIT SOUGHT BY THE UNION.
/11/ A REVIEW OF THE RECORD DISCLOSES THAT THE HEARING OFFICER DID
NOT AT ANY TIME SOLICIT TESTIMONY CONCERNING THE CRITERIA OF EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS, LIMITING DIRECT
QUESTIONING SOLELY TO INDICIA OF COMMUNITY OF INTEREST AMONG EMPLOYEES
WITHIN THE UNIT SOUGHT.
/12/ LOCAL UNIT NO. 2219, INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO, AND DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, LITTLE
ROCK DISTRICT, LITTLE ROCK, ARK., 1 FLRC 219 (FLRC NO. 71A-46 (NOV. 20,
1972), REPORT NO. 30); 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 (JUNE 10, 1975), REPORT NO.
73 (AFF'D NATIONAL BROILER COUNCIL, INC. V. FEDERAL RELATIONS COUNCIL,
CIVIL ACTION NO. 147-47-A (E.D. VA., SEPT. 5, 1975)).
/13/ SECTION 12(B)(4) PROVIDES IN PERTINENT PART:
SEC. 12. BASIC PROVISIONS OF AGREEMENTS. EACH AGREEMENT BETWEEN AN
AGENCY AND A LABOR
ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
ACCORDANCE WITH APPLICABLE LAWS
AND REGULATIONS--
(4) TO MAINTAIN THE EFFICIENCY OF THE GOVERNMENT OPERATIONS ENTRUSTED
TO THEM.
/14/ IN THIS REGARD, THE SAME CONCERN ABOUT FRAGMENTATION MIGHT HAVE
BEEN EXPRESSED ABOUT ANY UNREPRESENTED PORTION OF THE REGION, FOR
EXAMPLE, THE SEATTLE DCASD, WHICH IN ALL SIGNIFICANT RESPECTS HAD THE
SAME RELATIONSHIP WITH THE DCASR HEADQUARTERS AS THE HAWAII RESIDENCY
OFFICE.
/15/ IN THIS REGARD, AGENCY TESTIMONY CONCERNING THE EFFICIENCIES IN
AGENCY OPERATIONS EXPERIENCED IN OTHER UNITS WOULD BE RELEVANT, AS WOULD
TESTIMONY CONCERNING THE EFFECTIVENESS OF DEALINGS IN SUCH UNITS.
/16/ NOTE 2 SUPRA.
/17/ IN THE SUBJECT DECISION, A/SLMR NO. 559, THE ASSISTANT SECRETARY
TOOK NOTE OF THIS LANGUAGE IN FLRC NO. 74A-41, BUT CONCLUDED THAT HE DID
NOT FIND THIS CONCEPT TO BE INCONSISTENT WITH THE CONTINUED EXISTENCE OR
ESTABLISHMENT OF UNITS LESS COMPREHENSIVE THAN REGION OR DISTRICTWIDE,
WHICH OTHERWISE MEET THE TESTS OF APPROPRIATENESS UNDER THE ORDER.
/18/ A REVIEW OF THE RECORD DISCLOSES THAT THE HEARING OFFICER DID
NOT AT ANY TIME SOLICIT TESTIMONY CONCERNING THE CRITERIA OF EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS, LIMITING DIRECT
QUESTIONING SOLELY TO INDICIA OF COMMUNITY OF INTEREST AMONG EMPLOYEES
WITHIN THE UNIT SOUGHT.
7 A/SLMR 885; P. 689; CASE NO. 70-4524(RO); AUGUST 29, 1977.
AUGUST 29, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF SUPPLEMENTAL DECISION AND ORDER
OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION, SAN FRANCISCO
A/SLMR NO. 885
ON SEPTEMBER 16, 1975, THE ASSISTANT SECRETARY ISSUED HIS DECISION
AND DIRECTION OF ELECTION IN A/SLMR NO. 559, FINDING THAT THE PETITIONED
FOR UNIT IN THE SUBJECT CASE WAS APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION UNDER SECTION 10 OF THE ORDER.
ON DECEMBER 30, 1976, THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL)
ISSUED ITS DECISION ON APPEAL IN FLRC NO. 75A-128, IN WHICH IT FOUND
THAT THE PETITIONED FOR UNIT IS NOT APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION UNDER THE ORDER.
BASED ON THE COUNCIL'S HOLDING IN FLRC NO. 75A-128 AND THE RATIONALE
CONTAINED THEREIN, THE ASSISTANT SECRETARY ORDERED THAT THE
CERTIFICATION OF REPRESENTATIVE PREVIOUSLY ISSUED TO THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2723, AFL-CIO, BE REVOKED AND
THAT THE PETITION IN THE SUBJECT CASE BE DISMISSED.
DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION, SAN FRANCISCO /1/
ACTIVITY
CASE NO. 70-4524(RO),
A/SLMR NO. 559,
FLRC NO. 75A-128
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2723, AFL-CIO
PETITIONER
SUPPLEMENTAL DECISION AND ORDER
ON SEPTEMBER 16, 1975, THE ASSISTANT SECRETARY ISSUED HIS DECISION
AND DIRECTION OF ELECTION IN A/SLMR NO. 559, FINDING THAT THE PETITIONED
FOR UNIT WAS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER
THE ORDER. /2/ THEREAFTER, ON DECEMBER 30, 1976, THE FEDERAL LABOR
RELATIONS COUNCIL (COUNCIL) ISSUED ITS CONSOLIDATED DECISION ON APPEALS
INVOLVING, AMONG OTHERS, THE SUBJECT CASE. THE COUNCIL CONCLUDED, IN
ESSENCE, THAT THE PETITIONED FOR UNIT IN THE SUBJECT CASE WAS NOT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER.
/3/
BASED ON THE COUNCIL'S HOLDING IN THE INSTANT CASE AND THE RATIONALE
CONTAINED THEREIN, I SHALL ORDER THAT THE CERTIFICATION OF
REPRESENTATIVE PREVIOUSLY ISSUED TO THE PETITIONER INVOLVED HEREIN, BE
REVOKED AND THAT THE SUBJECT PETITION BE DISMISSED.
ORDER
IT IS HEREBY ORDERED THAT THE CERTIFICATION OF REPRESENTATIVE ISSUED
IN CASE NO. 70-4524(RO) BE, AND IT HEREBY IS, REVOKED, AND THAT THE
PETITION IN CASE NO. 70-4524(RO) BE, AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
AUGUST 29, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ SUBSEQUENT TO THE ISSUANCE OF THE DECISION ON APPEALS IN FLRC NO.
75A-128, THE NAME OF THE AGENCY INVOLVED WAS CHANGED TO DEFENSE
LOGISTICS AGENCY.
/2/ I HAVE BEEN ADMINISTRATIVELY ADVISED THAT PURSUANT TO THE
DECISION AND DIRECTION OF ELECTION IN A/SLMR NO. 559, A CERTIFICATION OF
REPRESENTATIVE WAS ISSUED TO THE PETITIONER INVOLVED HEREIN.
/3/ FURTHER PROCESSING OF THE SUBJECT CASE WAS HELD IN ABEYANCE
PENDING THE COUNCIL'S DISPOSITION OF AN APPEAL IN DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR), CLEVELAND,
OHIO, ETC., FLRC NO. 76A-97 (JULY 20, 1977).
UNITED STATES
FEDERAL LABOR RELATIONS COUNCIL
WASHINGTON, D.C. 20415
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
FLRC NO. 75A-14
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3540, AFL-CIO
DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT
ADMINISTRATION SERVICES REGION,
SAN FRANCISCO
A/SLMR NO. 559
FLRC NO. 75A-128
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2723, AFL-CIO
DEFENSE SUPPLY AGENCY, DEFENSE
CONTRACT ADMINISTRATION SERVICES
REGION (DCASR), SAN FRANCISCO,
DEFENSE CONTRACT ADMINISTRATION
SERVICES DISTRICT (DCASD), SEATTLE,
WASHINGTON
A/SLMR NO. 564
FLRC NO. 76A-
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3204, AFL-CIO
DECISION ON APPEALS FROM ASSISTANT SECRETARY DECISIONS
BACKGROUND OF CASES
THESE APPEALS AROSE FROM THREE SEPARATE DECISIONS OF THE ASSISTANT
SECRETARY IN WHICH HE FOUND THAT THREE PROPOSED BARGAINING UNITS IN THE
DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION SERVICES REGION
(DCASR), SAN FRANCISCO, CALIFORNIA, WERE APPROPRIATE AND DIRECTED AN
ELECTION IN EACH. INASMUCH AS THE THREE APPEALS ARISE OUT OF THE SAME
BASIC CIRCUMSTANCES AND FACTUAL BACKGROUND, INVOLVE THE SAME AGENCY AND
NATIONAL LABOR ORGANIZATION, AND PRESENT THE SAME MAJOR POLICY ISSUE,
THE COUNCIL HERE CONSOLIDATED THEM FOR DECISION ON THE MERITS.
ALL THREE OF THE DECISIONS OF THE ASSISTANT SECRETARY GREW OUT OF
PETITIONS FILED BY LOCALS OF THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (AFGE) SEEKING TO REPRESENT UNITS OF EMPLOYEES OF THE SAN
FRANCISCO DCASR. THE SAN FRANCISCO DCASR IS ONE OF 11 REGIONS OF THE
DEFENSE SUPPLY AGENCY (DSA), ALL OF WHICH PROVIDE CONTRACT
ADMINISTRATION SERVICES AND SUPPORT FOR THE DEPARTMENT OF DEFENSE, AS
WELL AS OTHER FEDERAL AGENCIES. THE SAN FRANCISCO DCASR COVERS THE
STATES OF UTAH, MONTANA, IDAHO, WASHINGTON, OREGON, ALASKA, HAWAII;
MOST OF NEVADA; NORTHERN CALIFORNIA; AND THE MARIANA ISLANDS. IT
CONSISTS OF A HEADQUARTERS ORGANIZATION AND FIELD ACTIVITIES WHICH ARE
DIVIDED INTO TWO DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICTS
(DCASD'S), SEATTLE AND SALT LAKE CITY, AS WELL AS SIX DEFENSE CONTRACT
ADMINISTRATION SERVICES OFFICES (DCASO'S) LOCATED IN PORTLAND, OREGON,
AND AT FIVE CONTRACTORS' OFFICES IN THE SAN FRANCISCO BAY AREA AND A
HAWAII RESIDENCY OFFICE. THE FIELD ACTIVITIES PERFORM BASIC MISSION
FUNCTIONS OF THE REGION IN THEIR RESPECTIVE GEOGRAPHIC AREAS. WITH THE
EXCEPTION OF THE DCASO IN PORTLAND, OREGON, WHICH REPORTS THROUGH THE
DCASD IN SEATTLE, ALL DCASO'S AND DCASD'S WITHIN THE REGION REPORT
DIRECTLY TO DCASR HEADQUARTERS IN SAN FRANCISCO. APPROXIMATELY 1,250
CIVILIAN EMPLOYEES ARE EMPLOYED THROUGHOUT THE DCASR, SAN FRANCISCO,
WITH MOST EMPLOYEES LOCATED IN NORTHERN CALIFORNIA. ALL OF THE
EMPLOYEES OF THE REGION ARE SUBJECT TO UNIFORM PERSONNEL POLICIES AND
PRACTICES ESTABLISHED AT REGIONAL HEADQUARTERS. PRIOR TO THE FILING OF
THE SUBJECT REPRESENTATION PETITIONS, NONE OF THE EMPLOYEES OF THE DCASR
WERE IN UNITS OF EXCLUSIVE RECOGNITION.
FLRC NO. 75A-14 (A/SLMR NO. 461)
IN JUNE 1974, AFGE LOCAL 3540 SOUGHT AN ELECTION IN A DISTRICTWIDE
UNIT COMPOSED OF THE 77 ELIGIBLE PROFESSIONAL AND NONPROFESSIONAL
EMPLOYEES OF THE SALT LAKE CITY DCASD. THE SAN FRANCISCO DCASR
CONTENDED THAT THE CLAIMED UNIT WAS NOT APPROPRIATE BECAUSE IT EXCLUDED
EMPLOYEES WHO SHARE A COMMUNITY OF INTEREST WITH THE EMPLOYEES IN THE
UNIT SOUGHT AND, FURTHER, THAT THE UNIT SOUGHT WOULD NOT PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. THE DCASR
CONTENDED THAT THE ONLY APPROPRIATE UNIT WAS ONE COMPOSED OF ALL
ELIGIBLE EMPLOYEES OF THE DCASR, SAN FRANCISCO.
THE ASSISTANT SECRETARY, IN A DECISION DATED NOVEMBER 27, 1974,
DETERMINED THAT THE SALT LAKE CITY DCASD UNIT WAS APPROPRIATE FOR THE
PURPOSES OF EXCLUSIVE RECOGNITION UNDER THE ORDER. AFTER NOTING
PARTICULARLY THAT THE PETITIONED-FOR EMPLOYEES SHARE COMMON DISTRICTWIDE
SUPERVISION, PERFORM THEIR DUTIES WITHIN THE ASSIGNED GEOGRAPHICAL
LOCALITY OF THE DCASD, AND DO NOT INTERCHANGE OR HAVE JOB CONTACT WITH
OTHER EMPLOYEES OF THE REGION, AND THAT GENERALLY TRANSFERS TO OR FROM
THE DISTRICT OFFICE OCCUR ONLY IN SITUATIONS INVOLVING PROMOTIONS OR
REDUCTION-IN-FORCE PROCEDURES, 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
SAN FRANCISCO REGION. THE ASSISTANT SECRETARY WENT ON TO ADD:
"FURTHER, BASED ON THE FOREGOING CONSIDERATIONS, I FIND THAT SUCH A UNIT
WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS." IN
MAKING THIS FINDING WITH RESPECT TO EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS, THE ASSISTANT SECRETARY REJECTED THE AGENCY'S
CONTENTIONS THAT CERTIFICATION OF A LESS THAN REGIONWIDE UNIT WOULD
LIMIT THE SCOPE OF NEGOTIATIONS SOLELY TO THOSE MATTERS WITHIN THE
DELEGATED DISCRETIONARY AUTHORITY OF THE COMMANDER OF THE DISTRICT
OFFICE, AND THUS WOULD NOT RESULT IN EFFECTIVE DEALINGS BETWEEN THE
PARTIES OR PROMOTE THE EFFICIENCY OF AGENCY OPERATIONS.
FLRC NO. 75A-128 (A/SLMR NO. 559)
IN NOVEMBER 1974, AFGE LOCAL 2723 SOUGHT AN ELECTION IN A UNIT
COMPOSED OF ALL ELIGIBLE NONPROFESSIONAL EMPLOYEES IN DCASR
HEADQUARTERS. DCASR OFFICIALS CONTENDED THAT THE CLAIMED UNIT WAS NOT
APPROPRIATE BECAUSE IT WOULD RESULT IN UNIT FRAGMENTATION AND WOULD NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. THEY
MAINTAINED THAT ONLY A SINGLE REGIONWIDE UNIT WOULD BE APPROPRIATE. AT
THE HEARING, THE UNION INDICATED A WILLINGNESS TO INCLUDE THE FIVE
DCASO'S, ALL OF WHICH ARE LOCATED IN THE SAN FRANCISCO BAY AREA, AND THE
HAWAII RESIDENCY OFFICE IN THE UNIT. THE ASSISTANT SECRETARY, ON
SEPTEMBER 16, 1975, FOUND THAT A UNIT ENCOMPASSING THE EMPLOYEES IN
DCASR HEADQUARTERS, THE FIVE DCASO'S IN THE SAN FRANCISCO BAY AREA, AND
THE HAWAII RESIDENCY OFFICE WAS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION IN THAT THE EMPLOYEES IN SUCH UNIT SHARED A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST WITH EACH OTHER, THAT SUCH A UNIT
WOULD PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS,
AND THAT THE AGENCY CONTENTIONS TO THE CONTRARY WERE "AT BEST,
SPECULATIVE AND CONJECTURAL."
MORE PARTICULARLY, WITH REGARD TO EFFICIENCY OF AGENCY OPERATIONS,
THE ASSISTANT SECRETARY OBSERVED THAT MORE THAN COST FACTORS SHOULD BE
INVOLVED IN MAKING SUCH A DETERMINATION, CITING AND QUOTING EXTENSIVELY
FROM THE COUNCIL'S NEGOTIABILITY DETERMINATION IN THE LITTLE ROCK CASE.
/1/ THE ASSISTANT SECRETARY FOUND IT:
(E)VIDENT THAT A DETERMINATION OF EFFICIENCY OF AGENCY OPERATIONS IS
DEPENDENT UPON A
COMPLEX OF FACTORS AND THAT . . . TANGIBLE AND INTANGIBLE BENEFITS TO
EMPLOYEES AND ACTIVITIES
RESULTING FROM EMPLOYEE REPRESENTATION BY A LABOR ORGANIZATION CAN
RESULT IN IMPROVED
EFFICIENCY OF OPERATIONS DESPITE INCREASED COST FACTORS. (FOOTNOTE
OMITTED.)
HE NOTED:
. . . THAT IN UNIT DETERMINATION PROCEEDINGS THE PARTIES ARE
OBLIGATED TO COME FORWARD, FOR
THE USE OF THE ASSISTANT SECRETARY, WILL 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.
HE FOUND THAT THE UNIT "COULD RESULT IN ACTUAL ECONOMIC SAVINGS AND
INCREASED PRODUCTIVITY DUE TO THE HOMOGENEITY OF ITS COMPOSITION."
NOTING 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," THE ASSISTANT
SECRETARY FOUND THAT "STANDING ALONE, SUCH SPECULATION AS TO WHAT MIGHT
BE HELPFUL OR DESIRABLE (WAS) INSUFFICIENT TO ESTABLISH THAT THE
PROPOSED UNIT IS INAPPROPRIATE WITHIN THE MEANING OF SECTION 10(B) OF
THE ORDER."
WITH REGARD TO EFFECTIVE DEALINGS, THE ASSISTANT SECRETARY, OBSERVING
THAT THE PRINCIPAL OR ULTIMATE AUTHORITY WITHIN THE REGION INVOLVED IN
THE NEGOTIATION AND APPROVAL OF NEGOTIATED AGREEMENTS AND IN THE
RESOLUTION OF GRIEVANCES AND OTHER PERSONNEL MATTERS IS LOCATED IN THE
DCASR HEADQUARTERS, CONCLUDED THAT THE UNIT FOUND APPROPRIATE WOULD
PROMOTE EFFECTIVE DEALINGS TO THE EXTENT THAT THE INDIVIDUALS MOST
CONCERNED WITH LABOR-MANAGEMENT RELATIONS, FISCAL MATTERS AND THE
DIRECTION OF OPERATIONS "ARE LOCATED ORGANIZATIONALLY WITH THE UNIT
FOUND APPROPRIATE." THE ASSISTANT SECRETARY WENT ON TO STATE, HOWEVER,
THAT, IN HIS 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." RELYING ON THE AMENDMENTS TO SECTION 11(A) OF THE ORDER IN
E.O. 11838, /2/ THE ASSISTANT SECRETARY STATED THAT "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." FURTHER, HE WENT ON TO SAY 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.
THE ASSISTANT SECRETARY CONCLUDED:
THUS, IN MY VIEW, THE ORDER, WHILE RECOGNIZING THE APPROPRIATENESS OF
BROADLY BASED UNITS
UNDER CERTAIN CIRCUMSTANCES, 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. (FOOTNOTE OMITTED.)
FLRC NO. 76A-4 (A/SLMR NO. 564)
IN OCTOBER 1974, AFGE LOCAL 3204 SOUGHT AN ELECTION IN A DISTRICTWIDE
UNIT OF ALL ELIGIBLE GENERAL SCHEDULE AND PROFESSIONAL EMPLOYEES IN THE
SEATTLE, WASHINGTON DCASD. THE PROPOSED UNIT INCLUDED, IN ADDITION TO
THE EMPLOYEES OF THE SEATTLE DISTRICT, EMPLOYEES OF THE PORTLAND, OREGON
DCASO WHICH, ORGANIZATIONALLY, REPORTS TO REGIONAL HEADQUARTERS THROUGH
SEATTLE. THE REGION CONTENDED THAT THE UNIT SOUGHT WAS NOT APPROPRIATE
BECAUSE, AMONG OTHER THINGS, IT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. IN THE ACTIVITY'S VIEW, ONLY A SINGLE
DCASR-WIDE UNIT WOULD BE APPROPRIATE.
THE ASSISTANT SECRETARY FOUND THE PETITIONED-FOR UNIT APPROPRIATE IN
SEPTEMBER 1975. IN DOING SO, HE DETERMINED THAT THE APPROXIMATELY 180
EMPLOYEES SOUGHT TO BE INCLUDED WITHIN THE PROPOSED UNIT OF THE SEATTLE
DCASD AND THE PORTLAND DCASO SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST SEPARATE AND DISTINCT FROM OTHER EMPLOYEES OF THE REGION. IN
DISAGREEMENT WITH THE CLAIMS OF REGIONAL OFFICIALS, THE ASSISTANT
SECRETARY DETERMINED THAT THE PROPOSED UNIT WOULD PROMOTE EFFECTIVE
DEALINGS AND THE EFFICIENCY OF AGENCY OPERATIONS. IN THIS REGARD, HE
AGAIN NOTED, AS IN HIS DECISION IN A/SLMR NO. 559 SUPRA, THAT A
DETERMINATION OF 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 WHICH CAN RESULT IN IMPROVED
EFFICIENCY OF AGENCY OPERATIONS DESPITE INCREASED COST FACTORS AND THAT
A CLAIMED UNIT MAY PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
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. HE WAS NOT PERSUADED BY THE REGION'S ARGUMENT THAT THE
NEGOTIATION AUTHORITY OF THE DISTRICT COMMANDER WOULD BE EXTREMELY
LIMITED, NOTING CERTAIN AREAS OF RESPONSIBILITY THAT THE DISTRICT
COMMANDER DOES HAVE. THE ASSISTANT SECRETARY CONCLUDED:
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 WHERE LESS THAT
REGION-WIDE UNITS HAVE
BEEN RECOGNIZED OR CERTIFIED AND WHERE THERE CURRENTLY EXIST
NEGOTIATED AGREEMENTS, I FIND
THAT THE PETITIONED FOR DISTRICT-WIDE UNIT WILL PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS. (FOOTNOTE OMITTED.)
FOLLOWING EACH OF THE ASSISTANT SECRETARY'S DECISIONS IN THESE CASES,
SEPARATE ELECTIONS WERE CONDUCTED IN EACH OF THE THREE SEPARATE UNITS
WHICH HAD BEEN FOUND APPROPRIATE AND AFGE WAS CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE IN EACH UNIT. THEREAFTER, IN EACH CASE, DSA APPEALED THE
ASSISTANT SECRETARY'S DECISION TO THE COUNCIL. UPON CONSIDERATION OF
THE PETITIONS FOR REVIEW, THE COUNCIL DETERMINED THAT THE SAME MAJOR
POLICY ISSUE IS PRESENTED BY EACH OF THE DECISIONS OF THE ASSISTANT
SECRETARY, NAMELY: WHETHER THE ASSISTANT SECRETARY'S DECISION IS
CONSISTENT WITH AND PROMOTES THE PURPOSES AND POLICIES OF THE ORDER,
ESPECIALLY THOSE REFLECTED IN SECTION 10(B). NEITHER PARTY FILED A
BRIEF ON THE MERITS.
OPINION
SECTION 6(A)(1) OF THE ORDER ASSIGNS TO THE ASSISTANT SECRETARY THE
RESPONSIBILITY FOR DECIDING QUESTIONS AS TO UNITS APPROPRIATE FOR THE
PURPOSES OF EXCLUSIVE RECOGNITION. THE COUNCIL, PURSUANT TO SECTION
2411.18(A) OF ITS REGULATIONS, WILL SUSTAIN SUCH DECISIONS UNLESS THEY
ARE ARBITRARY AND CAPRICIOUS OR INCONSISTENT WITH THE PURPOSES OF THE
ORDER. IN THE OPINION OF THE COUNCIL, THE DECISION OF THE ASSISTANT
SECRETARY IN EACH OF THESE CASES IS INCONSISTENT WITH THE PURPOSES OF
THE ORDER, SPECIFICALLY THE LANGUAGE AND INTENT OF SECTION 10(B).
SECTION 10(B) PROVIDES, IN PERTINENT PART, THAT:
A UNIT MAY BE ESTABLISHED ON A PLANT OR INSTALLATION, CRAFT,
FUNCTIONAL, OR OTHER BASIS
WHICH WILL ENSURE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
AMONG THE EMPLOYEES CONCERNED
AND WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS.
THE COUNCIL ON SEVERAL OCCASIONS HAS CONSIDERED THE MEANING AND
APPLICATION OF SECTION 10(B) IN THE ESTABLISHMENT OF APPROPRIATE UNITS
FOR THE PURPOSES OF EXCLUSIVE RECOGNITION. IN PARTICULAR, THE COUNCIL
HAS ADDRESSED THE REQUIREMENT THAT ANY PROPOSED UNIT OF EXCLUSIVE
RECOGNITION MUST MEET ALL THREE APPROPRIATE UNIT CRITERIA PRESCRIBED IN
SECTION 10(B), THAT IS, A UNIT MUST (1) ENSURE A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST AMONG THE EMPLOYEES CONCERNED, (2) PROMOTE
EFFECTIVE DEALINGS, AND (3) PROMOTE EFFICIENCY OF AGENCY OPERATIONS.
IN THE REPORT ACCOMPANYING E.O. 11838, THE COUNCIL, IN DISCUSSING ITS
BELIEF "THAT THE POLICY OF PROMOTING MORE COMPREHENSIVE BARGAINING UNITS
AND HENCE OF REDUCING FRAGMENTATION IN THE BARGAINING UNIT STRUCTURE
WILL FOSTER THE & DEVELOPMENT OF A SOUND FEDERAL LABOR-MANAGEMENT
RELATIONS PROGRAM," STATED:
WE FURTHER FEEL THAT THE ASSISTANT SECRETARY CAN DO MUCH TO FOSTER
THIS POLICY IN CARRYING
OUT HIS FUNCTIONS OF DECIDING OTHER REPRESENTATION QUESTIONS
INCLUDING THE APPROPRIATENESS OF
NEWLY SOUGHT UNITS. ACCORDINGLY, IN ALL REPRESENTATION QUESTIONS,
EQUAL WEIGHT MUST BE GIVEN
TO EACH OF THE THREE CRITERIA IN SECTION 10(B) OF THE ORDER. BY
DOING SO, THE RESULT SHOULD
BE BROADER, MORE COMPREHENSIVE BARGAINING UNITS. /3/
THUS, THE COUNCIL CONCLUDED THAT THE APPROPRIATE APPLICATION OF THE
THREE CRITERIA WILL FACILITATE THE REDUCTION OF FRAGMENTATION IN
BARGAINING UNIT STRUCTURE IN THE FEDERAL LABOR-MANAGEMENT RELATIONS
PROGRAM AND THEREBY PROMOTE THE POLICY OF CREATING MORE COMPREHENSIVE
UNITS.
IN ITS DECISION IN TULSA AFS, THE COUNCIL DISCUSSED AT LENGTH THE
OBLIGATIONS OF THE ASSISTANT SECRETARY IN APPLYING THE THREE 10(B)
CRITERIA. /4/ THE COUNCIL REVIEWED THE HISTORY OF THE DEVELOPMENT OF
EXCLUSIVE RECOGNITION OF APPROPRIATE UNITS IN THE FEDERAL
LABOR-MANAGEMENT RELATIONS PROGRAM AND CONCLUDED:
IT IS CLEAR THAT THE EXPRESS LANGUAGE OF SECTION 10(B) REQUIRES THAT
ANY PROPOSED UNIT OF
EXCLUSIVE RECOGNITION MUST SATISFY EACH OF THE THREE CRITERIA SET
FORTH THEREIN, AND THAT THE
ASSISTANT SECRETARY MUST AFFIRMATIVELY SO DETERMINE, BEFORE THAT UNIT
PROPERLY CAN BE FOUND TO
BE APPROPRIATE. THIS CONCLUSION IS AMPLY SUPPORTED BY THE PURPOSE OF
THE PROVISION, AS
EVIDENCED BY ITS "LEGISLATIVE HISTORY" . . . EXPECIALLY WHEREIN THE
CRITERION OF COMMUNITY OF
INTEREST OF THE EMPLOYEES INVOLVED WAS EXPLICITLY BALANCED WITH OTHER
CONSIDERATIONS IMPORTANT
TO MANAGEMENT AND PROTECTION OF THE PUBLIC INTEREST IN THE
PROMULGATION OF E.O. 11491 IN 1969,
I.E., THAT UNITS FOUND APPROPRIATE MUST ALSO PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS.
FURTHER, AFTER QUOTING THOSE PASSAGES OF THE COUNCIL'S REPORT TO THE
PRESIDENT WHICH LED TO THE ISSUANCE OF EXECUTIVE ORDER 11838 WHEREIN THE
THREE CRITERIA WERE DISCUSSED, THE COUNCIL STATED AS TO THE REQUIRED
FINDINGS UNDER SECTION 10(B) OF THE ORDER:
THUS, THE ASSISTANT SECRETARY MUST NOT ONLY AFFIRMATIVELY DETERMINE
THAT A UNIT WILL ENSURE
A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AMONG THE EMPLOYEES
CONCERNED AND WILL PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS, BUT MUST GIVE
EQUAL WEIGHT TO EACH OF
THE THREE CRITERIA BEFORE THE PARTICULAR UNIT CAN BE FOUND TO BE
APPROPRIATE.
IN TULSA AFS, THE COUNCIL ALSO DISCUSSED THE RESPONSIBILITY OF THE
ASSISTANT SECRETARY IN UNIT DETERMINATION PROCEEDINGS TO DEVELOP AND
CONSIDER EVIDENCE CONCERNING THE APPROPRIATE UNIT CRITERIA IN SECTION
10(B) OF THE ORDER. THE COUNCIL STRESSED THAT IT IS THE OBLIGATION OF
THE ASSISTANT SECRETARY TO "DEVELOP AS COMPLETE A RECORD AS POSSIBLE
WITH REGARD TO EACH OF THE THREE CRITERIA . . . AND . . . GIVE FULL AND
CAREFUL CONSIDERATION TO ALL REVELANT EVIDENCE IN THE RECORD IN REACHING
HIS DECISION." IN THIS REGARD, THE COUNCIL NOTED THAT PARTIES TO A
REPRESENTATION PROCEEDING ARE RESPONSIBLE FOR PROVIDING THE ASSISTANT
SECRETARY WITH ALL INFORMATION RELEVANT TO THE APPROPRIATE UNIT CRITERIA
THAT IS WITHIN THEIR KNOWLEDGE AND POSSESSION, BUT EMPHASIZED THAT THE
ASSISTANT SECRETARY MUST ACTIVELY SOLICIT SUCH EVIDENCE AS NECESSARY TO
ENABLE HIM TO MAKE A FULLY-INFORMED JUDGMENT AS TO WHETHER A PARTICULAR
UNIT WILL SATISFY EACH OF THE THREE 10(B) CRITERIA. IN THIS REGARD, THE
COUNCIL STATED:
(T)HERE IS A NEED FOR A SHARPER DEGREE OF DEFINITION OF THE CRITERIA
OF EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS TO FACILITATE BOTH THE
DEVELOPMENT AND PRESENTATION OF
EVIDENCE PERTAINING TO THOSE CRITERIA BY AGENCIES AND LABOR
ORGANIZATIONS, AND THE QUALITATIVE
APPRAISAL OF SUCH EVIDENCE BY THE ASSISTANT SECRETARY IN APPROPRIATE
UNIT DETERMINATIONS. AS
HE HAS DONE WITH THE COMMUNITY OF INTEREST CRITERION, THEREFORE, THE
ASSISTANT SECRETARY
SHOULD DEVELOP SUBSIDIARY FACTORS OR INDICATORS WHICH WILL SERVE AS
GUIDELINES IN DETERMINING
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. IN THIS WAY,
EACH OF THE POLICY GOALS
TO BE ACHIEVED IN UNIT DETERMINATION WILL HAVE AN EQUAL DEGREE OF
PRECISION AND, HOPEFULLY,
WILL RECEIVE THE NECESSARY AND DESIRABLE EQUALITY OF EMPHASIS IN
REPRESENTATION PROCEEDINGS.
SUMMARIZING THE RESPONSIBILITIES OF THE ASSISTANT SECRETARY WHICH
FLOW FROM SECTION 10(B) OF THE ORDER: BEFORE THE ASSISTANT SECRETARY
MAY FIND THAT A PROPOSED UNIT IS APPROPRIATE FOR PURPOSES OF EXCLUSIVE
RECOGNITION UNDER THE ORDER, HE MUST MAKE AN AFFIRMATIVE DETERMINATION
THAT THE PROPOSED UNIT SATISFIES EQUALLY EACH OF THE THREE CRITERIA
CONTAINED IN SECTION 10(B). THAT IS, HE MUST CONSIDER EQUALLY THE
EVIDENCE GOING TO EACH OF THE THREE CRITERIA AND, AS REQUIRED BY SECTION
10(B), FIND APPROPRIATE ONLY UNITS WHICH NOT ONLY ENSURE A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST BUT ALSO PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS. IN MAKING THE AFFIRMATIVE
DETERMINATION THAT A PROPOSED BARGAINING UNIT SATISFIES EACH OF THE
THREE CRITERIA, THE ASSISTANT SECRETARY MUST FIRST DEVELOP AS COMPLETE A
RECORD AS POSSIBLE, SOLICITING EVIDENCE FROM THE PARTIES AS NECESSARY,
AND THEN GROUND HIS DECISION UPON A CAREFUL, THOROUGH ANALYSIS OF
SUBSIDIARY FACTORS OR EVIDENTIARY CONSIDERATIONS WHICH PROVIDE A SHARP
DEGREE OF DEFINITION AND PRECISION TO EACH OF THE THREE CRITERIA.
FINALLY, AND MOST IMPORTANTLY, THE ASSISTANT SECRETARY MUST MAKE THE
NECESSARY AFFIRMATIVE DETERMINATIONS THAT A UNIT CLEARLY, CONVINCINGLY
AND EQUALLY SATISFIES EACH OF THE 10(B) CRITERIA IN RECOGNITION OF AND
IN A MANNER FULLY CONSISTENT WITH THE PURPOSES OF THE ORDER, INCLUDING
THE DUAL OBJECTIVES OF PREVENTING FURTHER FRAGMENTATION OF BARGAINING
UNITS AS WELL AS REDUCING EXISTING FRAGMENTATION, THEREBY PROMOTING A
MORE COMPREHENSIVE BARGAINING UNIT STRUCTURE. WE TURN NOW TO THE
APPLICATION OF THESE PRINCIPLES TO THE THREE CASES BEFORE THE COUNCIL.
THEY WILL BE TREATED SERIATIM.
A/SLMR NO. 461
AS OUTLINED ABOVE, IN THIS CASE THE ASSISTANT SECRETARY FOUND THAT A
UNIT OF ONE GEOGRAPHIC ELEMENT OF THE SAN FRANCISCO DCASR, NAMELY THE
SALT LAKE CITY DCASD, WAS AN APPROPRIATE UNIT FOR PURPOSES OF EXCLUSIVE
RECOGNITION UNDER THE ORDER. IN SO FINDING, HE REVIEWED THE EVIDENCE
RELATING TO CERTAIN SUBSIDIARY FACTORS OR INDICATORS OF COMMUNITY OF
INTEREST AND BASED UPON THESE EVIDENTIARY CONSIDERATIONS FOUND THAT THE
EMPLOYEES IN THE PETITIONED-FOR UNIT SHARED A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM OTHER EMPLOYEES OF THE
SAN FRANCISCO REGION. ADDITIONALLY, AS REQUIRED, THE ASSISTANT
SECRETARY FOUND THAT SUCH A UNIT WILL PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. HOWEVER, THIS LATTER CONCLUSION WAS
"BASED ON THE FOREGOING CONSIDERATIONS," THAT IS, THE EVIDENTIARY
CONSIDERATIONS WHICH SUPPORTED A FINDING THAT THE EMPLOYEES HAD
COMMUNITY OF INTEREST, RATHER THAN ON ANY EVIDENCE DIRECTLY BEARING ON
THE PROMOTION OF EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
WHILE THE ASSISTANT SECRETARY MADE AN AFFIRMATIVE FINDING THAT THE
PROPOSED UNIT MET ALL THE APPROPRIATE UNIT CRITERIA OF SECTION 10(B), WE
MUST CONCLUDE THAT IN MAKING THAT FINDING HE DID NOT FULLY MEET HIS
OBLIGATIONS UNDER THE ORDER. IN THIS REGARD, AS WE HAVE INDICATED, IT
IS THE RESPONSIBILITY OF THE ASSISTANT SECRETARY TO DEVELOP AS COMPLETE
A RECORD AS POSSIBLE WITH REGARD TO EACH OF THE THREE CRITERIA,
SOLICITING EVIDENCE FROM THE PARTIES AS NECESSARY; TO GIVE FULL AND
CAREFUL CONSIDERATION TO ALL RELEVANT EVIDENCE IN THE RECORD; AND THEN
TO GROUND HIS DECISION UPON A CAREFUL, THOROUGH ANALYSIS OF EVIDENTIARY
CONSIDERATIONS OR FACTORS WHICH PROVIDE A SHARP DEGREE OF DEFINITION AND
PRECISION TO EACH OF THE THREE CRITERIA. WHERE THE ASSISTANT SECRETARY
FINDS A UNIT TO BE APPROPRIATE FOR PURPOSES OF EXCLUSIVE RECOGNITION, HE
MUST MAKE AN AFFIRMATIVE DETERMINATION THAT A UNIT EQUALLY SATISFIES
EACH OF THE 10(B) CRITERIA. FINALLY, AND MOST IMPORTANTLY, THE
ASSISTANT SECRETARY MUST DECIDE APPROPRIATE UNIT QUESTIONS CONSISTENT
WITH THE PURPOSES OF THE ORDER, INCLUDING THE POLICY OF PREVENTING AND
REDUCING FRAGMENTATION, THEREBY PROMOTING A MORE COMPREHENSIVE
BARGAINING UNIT STRUCTURE.
IN THIS CASE, WHILE THE ASSISTANT SECRETARY CLEARLY MET HIS
RESPONSIBILITIES IN DEVELOPING AND ANALYZING EVIDENCE PERTAINING TO THE
"COMMUNITY OF INTEREST" CRITERION AND IN MAKING AN AFFIRMATIVE FINDING
WITH RESPECT TO THAT CRITERION, WE CONCLUDE THAT HE FAILED TO MEET THESE
RESPONSIBILITIES WITH RESPECT TO THE CRITERIA OF "EFFECTIVE DEALINGS"
AND "EFFICIENCY OF AGENCY OPERATIONS." FIRST, A REVIEW OF THE RECORD
REVEALS THAT THE ASSISTANT SECRETARY FAILED TO MAKE AN INTENSIVE EFFORT
TO DEVELOP AS COMPLETE A RECORD AS POSSIBLE WITH REGARD TO THE CRITERIA
OF "EFFECTIVE DEALINGS" AND "EFFICIENCY OF AGENCY OPERATIONS,"
SOLICITING EVIDENCE FROM THE PARTIES AS NECESSARY. /5/ WHILE THE
TESTIMONY AND ARGUMENTS ADVANCED BY THE ACTIVITY AS TO WHY THE PROPOSED
DCASD UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS MAY NOT, IN THE ASSISTANT SECRETARY'S VIEW, HAVE PROVIDED HIM
WITH A SUFFICIENT BASIS ON WHICH TO MAKE A DETERMINATION, /6/ THE
DEVELOPMENT OF SUCH EVIDENCE DOES NOT STOP WITH THE PRESENTATION BY THE
PARTIES. ALTHOUGH, AS WE STATED IN TULSA AFS, THE PARTIES ARE
RESPONSIBLE FOR PROVIDING THE ASSISTANT SECRETARY WITH ALL RELEVANT
INFORMATION WITHIN THEIR KNOWLEDGE AND POSSESSION, WE EMPHASIZED IN THAT
DECISION THAT THE ASSISTANT SECRETARY, IN CARRYING OUT HIS
RESPONSIBILITIES TO DECIDE APPROPRIATE UNIT QUESTIONS, MUST ACTIVELY
SOLICIT SUCH INFORMATION AND DEVELOP THE EVIDENCE NECESSARY TO ENABLE
HIM TO MAKE A FULLY-INFORMED JUDGMENT AS TO WHETHER THE PROPOSED UNIT
WILL SATISFY EACH OF THE THREE 10(B) CRITERIA. WE CONCLUDE THAT THE
ASSISTANT SECRETARY DID NOT MEET THAT RESPONSIBILITY IN A/SLMR NO. 461.
FURTHERMORE, AS TO THE CONTENTIONS AND SUPPORTING EVIDENCE WHICH WERE
PUT FORWARD BY THE ACTIVITY REGARDING THESE TWO CRITERIA, THE ASSISTANT
SECRETARY FAILED TO GIVE SUCH CONTENTIONS AND EVIDENCE FULL AND CAREFUL
CONSIDERATION. INDEED, HIS ONLY CONSIDERATION WAS IN A FOOTNOTE WHEREIN
HE REJECTED THE ACTIVITY'S CONTENTION THAT A LESS THAN REGIONWIDE UNIT
WOULD LIMIT THE SCOPE OF NEGOTIATIONS SOLELY TO THOSE MATTERS WITHIN THE
DELEGATED AUTHORITY OF THE COMMANDER OF THE DISTRICT OFFICE. /7/
SECOND, THE ASSISTANT SECRETARY'S DECISION WAS NOT BASED UPON A
CAREFUL, THOROUGH ANALYSIS OF EVIDENTIARY CONSIDERATIONS OR FACTORS
WHICH PROVIDE A SHARP DEGREE OF DEFINITION AND PRECISION TO THE
"EFFECTIVE DEALINGS" AND "EFFICIENCY OF AGENCY OPERATIONS" CRITERIA.
INDEED, THERE WAS NO DISCUSSION OF SUCH EVIDENTIARY CONSIDERATIONS OR
FACTORS. INSTEAD, THE TREATMENT OF THESE TWO CRITERIA AMOUNTED TO
LITTLE MORE THAN A CONCLUSIONARY STATEMENT BASED SOLELY UPON EVIDENTIARY
CONSIDERATIONS WHICH HAD BEEN RELIED UPON TO SUPPORT THE FINDING OF A
COMMUNITY OF INTEREST.
WHILE WE REALIZE THAT CERTAIN CONSIDERATIONS TRADITIONALLY DISCUSSED
IN THE CONTEXT OF COMMUNITY OF INTEREST CAN ALSO BE RELEVANT IN
ASCERTAINING WHETHER A PROPOSED UNIT WOULD PROMOTE EFFECTIVE DEALINGS OR
EFFICIENCY OF OPERATIONS (E.G., SUPERVISORY HIERARCHY AND UNIFORMITY OF
PERSONNEL POLICIES), OTHER, QUITE DIFFERENT CONSIDERATIONS ALSO APPLY.
AS WE STATED IN TULSA AFS, /8/ THERE IS NEED FOR A SHARPER DEGREE OF
DEFINITION TO THE CRITERIA OF EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS AND THE ASSISTANT SECRETARY SHOULD DEVELOP SUBSIDIARY
FACTORS OR INDICATORS WHICH WILL SERVE AS GUIDELINES IN DETERMINING
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. RATHER THAN
RELYING SOLELY ON THE "FOREGOING CONSIDERATIONS," THE ASSISTANT
SECRETARY WAS REQUIRED TO EXAMINE THE VERY KIND OF TESTIMONY AND
CONTENTIONS PUT FORWARD BY THE AGENCY (E.G., MORE EFFICIENT USE OF
NEGOTIATION RESOURCES DERIVED FROM SINGLE REGIONWIDE NEGOTIATIONS RATHER
THAN A MULTIPLICITY OF NEGOTIATIONS IN SEGMENTS OF THE REGION), AS WELL
AS THE WIDE RANGE OF OTHER CONSIDERATIONS RAISED BY THE FACTS OF THE
CASE. IN DEVELOPING SUCH SUBSIDIARY FACTORS OR EVIDENTIARY
CONSIDERATIONS, WHICH MORE PRECISELY DEFINE WHAT IS MEANT BY PROMOTING
EFFECTIVE DEALINGS, THE ASSISTANT SECRETARY MIGHT WELL CONSIDER IN THE
CIRCUMSTANCES OF THIS CASE SUCH MATTERS AS THE LOCUS AND SCOPE OF
AUTHORITY OF THE RESPONSIBLE PERSONNEL OFFICE; THE LIMITATIONS ON THE
NEGOTIATION OF MATTERS OF CRITICAL CONCERN TO EMPLOYEES BECAUSE THE
CONCERNS OF SALT LAKE CITY DCASO EMPLOYEES MAY BE INSEPARABLE FROM THOSE
OF OTHER EMPLOYEES IN THE REGION; THE LIKELIHOOD THAT PEOPLE WITH
GREATER EXPERTISE IN NEGOTIATIONS WILL BE AVAILABLE IN A LARGER UNIT;
THE ACTUAL EXPERIENCE OF THIS AGENCY IN OTHER BARGAINING UNITS; AND THE
LEVEL AT WHICH LABOR RELATIONS POLICY IS SET IN THE AGENCY AND THE
EFFECTUATION OF AGENCY TRAINING IN THE IMPLEMENTATION OF A NUMBER OF
NEGOTIATED AGREEMENTS AND GRIEVANCE PROCEDURES COVERING EMPLOYEES
PERFORMING ESSENTIALLY THE SAME DUTIES. AS TO "EFFICIENCY OF AGENCY
OPERATIONS" AMONG THOSE FACTORS WHICH SHOULD BE CONSIDERED WOULD BE THE
BENEFITS TO BE DERIVED FROM A UNIT STRUCTURE WHICH BEARS SOME RATIONAL
RELATIONSHIP TO THE OPERATIONAL AND ORGANIZATIONAL STRUCTURE OF THE
AGENCY. THIS IS CERTAINLY NOT TO SAY THAT SECTION 10(B) REQUIRES THAT
EACH BARGAINING UNIT ALWAYS BE COEXTENSIVE WITH THE AGENCY'S VIEW OF HOW
IT CAN BEST ORGANIZE TO CARRY OUT ITS MISSION, BUT THE RELATIONSHIP
BETWEEN THE PROPOSED BARGAINING UNIT AND THE OPERATIONAL AND
ORGANIZATIONAL STRUCTURE OF THE AGENCY SHOULD BE GIVEN SUBSTANTIAL
WEIGHT IN ASCERTAINING WHETHER THE UNIT WILL PROMOTE EFFICIENCY OF
AGENCY OPERATIONS. IN THE INSTANT CASE, FOR EXAMPLE, WHILE THE
ASSISTANT SECRETARY RELIED IN PART ON THE FACT THAT THE SALT LAKE CITY
DCASD EMPLOYEES SHARE DISTRICTWIDE SUPERVISION, HE APPEARS TO HAVE GIVEN
NO WEIGHT TO THE FACT THAT THOSE EMPLOYEES SHARE A COMMON SUPERVISORY
STRUCTURE WITH ALL EMPLOYEES IN THE REGION AND ENJOY A COMMONALITY OF
MISSION, PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING
CONDITIONS WITH ALL EMPLOYEES OF THE REGION.
THIRD, IN SIMPLY CONCLUDING THAT THE PROPOSED UNIT WILL PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF OPERATIONS BASED SOLELY UPON
EVIDENTIARY CONSIDERATIONS WHICH HAD BEEN RELIED UPON TO SUPPORT THE
FINDING OF A COMMUNITY OF INTEREST, THE ASSISTANT SECRETARY FAILED TO
GIVE EQUAL WEIGHT TO ALL THREE CRITERIA.
FINALLY, THERE IS THE REQUIREMENT THAT THE ASSISTANT SECRETARY DECIDE
APPROPRIATE UNIT QUESTIONS CONSISTENT WITH THE POLICY OF THE ORDER OF
PREVENTING AND REDUCING FRAGMENTATION IN THE BARGAINING UNIT STRUCTURE
OF THE FEDERAL LABOR-MANAGEMENT RELATIONS PROGRAM. THE ASSISTANT
SECRETARY'S DECISION FINDING APPROPRIATE A UNIT LIMITED TO THE SALT LAKE
CITY DCASD IS CLEARLY CONTRARY TO THAT POLICY IN THAT HIS DECISION TENDS
TO FOSTER AND PROMOTE FRAGMENTATION. THE SAN FRANCISCO DCASR IS A
SINGLE ORGANIZATIONAL ELEMENT OF THE AGENCY WITH A CHAIN OF COMMAND
HEADED BY THE REGIONAL COMMANDER, RUNNING DOWN THROUGH ALL OF THE
COMPONENT ELEMENTS. WITH THE EXCEPTION OF THE DCASO IN PORTLAND WHICH
REPORTS THROUGH THE DCASD IN SEATTLE, ALL ELEMENTS OF THE REGION REPORT
DIRECTLY TO DCASR HEADQUARTERS. ALL EMPLOYEES OF THE REGION PERFORM
THEIR DUTIES PURSUANT TO POLICIES AND PROCEDURES ESTABLISHED BY THE
REGIONAL HEADQUARTERS STAFF, AND THE EMPLOYEES WITHIN THE REGION ARE
SUBJECT TO UNIFORM PERSONNEL POLICIES AND JOB BENEFITS. THE DCASR'S
CIVILIAN PERSONNEL OFFICE, LOCATED AT HEADQUARTERS, HAS THE
RESPONSIBILITY FOR SERVICING ALL COMPONENTS WITHIN THE REGION. THE
REGION ENCOMPASSES AN ORGANIZATIONAL STRUCTURE OF AN AGENCY WHICH IS
FUNCTIONALLY INTEGRATED. IT HAS BEEN ESTABLISHED IN THIS MANNER TO
ACCOMPLISH ITS MISSION. ITS EMPLOYEES THUS SHARE A COMMONALITY OF
MISSION, ORGANIZATION AND PERSONNEL POLICIES AND PRACTICES AND MATTERS
AFFECTING WORKING CONDITIONS.
THERE IS NO QUESTION THAT IF THE UNION SOUGHT RECOGNITION IN A
REGIONWIDE UNIT, IT WOULD MEET ALL OF THE SECTION 10(B) CRITERIA AND,
MORE IMPORTANTLY, WOULD BE CONSISTENT WITH THE ORDER'S POLICY OF
PROMOTING A MORE COMPREHENSIVE BARGAINING UNIT STRUCTURE. AGAINST THIS
BACKDROP, THE AFGE PETITIONED FOR A SINGLE PORTION OF THE ORGANIZATIONAL
AND FUNCTIONAL WHOLE, THE SALT LAKE CITY DCASD, A UNIT OF APPROXIMATELY
77 EMPLOYEES OUT OF A TOTAL OF APPROXIMATELY 1,250 ELIGIBLE EMPLOYEES IN
THE REGION. IN CONCLUDING THAT THESE EMPLOYEES SHARED A COMMUNITY OF
INTEREST WITH EACH OTHER, THE ASSISTANT SECRETARY RELIED UPON THOSE
FACTORS WHICH, IN HIS VIEW, REFLECTED SOME DEGREE OF SEPARATION BETWEEN
THESE EMPLOYEES AND THE REMAINING EMPLOYEES IN THE DCASR. IN DOING SO,
HE FAILED TO GIVE PROPER RECOGNITION TO THE SINGLE ORGANIZATIONAL
STRUCTURE OF THE REGION, ITS CHAIN OF COMMAND AND AUTHORITY, THE UNIFORM
PERSONNEL POLICIES AND PRACTICES WITHIN THE DCASR, AND THE EXISTENCE OF
A SINGLE CIVILIAN PERSONNEL OFFICE WITHIN THE DCASR. AS A RESULT, THE
UNIT STRUCTURE WHICH HIS DECISION PROMOTES WITHIN THE SAN FRANCISCO
DCASR RESULTS IN ARTIFICIAL DISTINCTIONS BETWEEN GROUPS OF EMPLOYEES
WHOSE MISSION AND FUNCTIONS, SUPERVISORY STRUCTURE AND CONDITIONS OF
EMPLOYMENT ARE IDENTICAL. MOREOVER, FINDING SUCH A UNIT APPROPRIATE
LEFT THE REMAINDER OF THE REGION FOR FURTHER PIECEMEAL ORGANIZING
EFFORTS, THEREBY RESULTING IN A FRAGMENTED BARGAINING UNIT STRUCTURE, AS
ACTUALLY SUBSEQUENTLY OCCURRED HEREIN.
IN SUMMARY, IN THE CIRCUMSTANCES OF THIS CASE AS REFLECTED IN THE
RECORD BEFORE US, EQUAL APPLICATION OF THE THREE CRITERIA IN SECTION
10(B) AND THE RESULTING CONSISTENCY WITH THE PURPOSES OF THE ORDER WOULD
DICTATE A FINDING THAT A UNIT LIMITED TO THE SALT LAKE CITY DCASD IS NOT
AN APPROPRIATE UNIT FOR PURPOSES OF EXCLUSIVE RECOGNITION UNDER THE
ORDER. /9/
A/SLMR NO. 559
THE ASSISTANT SECRETARY, AS OUTLINED ABOVE, IN THIS CASE FOUND
APPROPRIATE A UNIT COMPOSED OF THE EMPLOYEES IN DCASR HEADQUARTERS AND
THE FIVE DCASO'S, ALL IN THE SAN FRANCISCO BAY AREA, ALONG WITH THE
HAWAII RESIDENCY OFFICE. AFTER REVIEWING AT LENGTH THE ORGANIZATIONAL
AND WORK ENVIRONMENT OF THE REGION AND ITS COMPONENT PARTS, HE FOUND
THAT THERE WAS A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AMONG THE
EMPLOYEES IN THE UNIT FOUND APPROPRIATE, NOTING SPECIFICALLY THAT SUCH
EMPLOYEES SHARE A COMMON MISSION AND ARE COVERED BY THE SAME PERSONNEL
AND LABOR RELATIONS POLICIES; THAT THERE ARE SIMILAR JOB
CLASSIFICATIONS IN EACH OF THE COMPONENTS WITHIN THE HEADQUARTERS, THE
FIVE DCASO'S AND THE HAWAII RESIDENCY OFFICE; THAT THERE HAVE BEEN
REASSIGNMENTS TO AND FROM THE REGIONAL HEADQUARTERS AND THE DCASO'S;
AND THAT THERE IS EMPLOYEE CONTACT BETWEEN HEADQUARTERS AND THE DCASO'S.
WHILE THE ASSISTANT SECRETARY AGAIN MADE AN AFFIRMATIVE FINDING THAT
THE PROPOSED UNIT MET ALL OF THE APPROPRIATE UNIT CRITERIA OF SECTION
10(B), BE MUST CONCLUDE THAT IN MAKING THAT FINDING HE DID NOT FULLY
MEET THOSE OBLIGATIONS, OUTLINED PREVIOUSLY HEREIN, WHICH THE ORDER
IMPOSES UPON HIM. IN THIS CASE, WHILE THE ASSISTANT SECRETARY MET HIS
RESPONSIBILITIES IN DEVELOPING AND ANALYZING EVIDENCE PERTAINING TO THE
"COMMUNITY OF INTEREST" CRITERION AND IN MAKING AN AFFIRMATIVE FINDING
WITH RESPECT TO THAT CRITERION, /10/ WE CONCLUDE THAT HE FAILED TO MEET
THOSE RESPONSIBILITIES WITH RESPECT TO THE CRITERIA OF "EFFECTIVE
DEALINGS" AND "EFFICIENCY OF AGENCY OPERATIONS." FIRST, A REVIEW OF THE
RECORD REVEALS THAT THE ASSISTANT SECRETARY FAILED TO MAKE AN
AFFIRMATIVE EFFORT TO DEVELOP AS COMPLETE A RECORD AS POSSIBLE WITH
REGARD TO THE CRITERIA OF "EFFECTIVE DEALINGS" AND "EFFICIENCY OF AGENCY
OPERATIONS." /11/ FURTHERMORE, AS TO THE CONTENTIONS AND SUPPORTING
EVIDENCE WHICH WERE PUT FORWARD BY THE ACTIVITY REGARDING THESE TWO
CRITERIA, THE ASSISTANT SECRETARY FAILED TO GIVE SUCH TESTIMONY
APPROPRIATE AND ADEQUATE CONSIDERATION.
AS TO WHETHER THE UNIT SOUGHT IN A/SLMR NO. 559 WOULD PROMOTE
EFFICIENCY OF AGENCY OPERATIONS, THE ASSISTANT SECRETARY, RELYING ON
COUNCIL NEGOTIABILITY DECISIONS /12/ ON THE MEANING OF SECTION 12(B)(4),
/13/ CONCLUDED THAT MORE THAN COST FACTORS SHOULD BE INVOLVED IN MAKING
SUCH DETERMINATIONS. AS PREVIOUSLY INDICATED, HE STATED:
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. (FOOTNOTE OMITTED.)
BASED ON THESE CONSIDERATIONS, THE ASSISTANT SECRETARY CONCLUDED THAT
THE PROPOSED UNIT WOULD PROMOTE EFFICIENCY OF AGENCY OPERATIONS,
STRESSING THAT THE UNIT WOULD ENCOMPASS THE EMPLOYEES WITHIN THE SAME
COMMUTING AREA AND WOULD INCLUDE THE HAWAII RESIDENCY OFFICE WHICH
OTHERWISE MIGHT BE FRAGMENTED. /14/ THE ASSISTANT SECRETARY CONCLUDED
THAT THE ESTABLISHMENT OF SUCH A UNIT "COULD RESULT" IN ACTUAL ECONOMIC
SAVINGS AND INCREASED PRODUCTIVITY DUE TO THE HOMOGENEITY OF ITS
COMPOSITION.
WHILE THE ASSISTANT SECRETARY REACHED A CONCLUSION AS TO WHETHER THE
PROPOSED UNIT WOULD PROMOTE THE EFFICIENCY OF AGENCY OPERATIONS, IN OUR
VIEW, HE FAILED PROPERLY TO CONSIDER THE RELEVANT TESTIMONY AND
ARGUMENTS ADVANCED BY THE AGENCY AND, IN EFFECT, THEREBY FAILED TO GIVE
THE REQUIRED EQUAL WEIGHT TO THIS CRITERION. AT THE OUTSET, THE
ASSISTANT SECRETARY FOUND THAT THE AGENCY'S VIEWS AS TO BOTH THIS
CRITERION AND THE CRITERION OF PROMOTING EFFECTIVE DEALINGS TO BE "AT
MOST, SPECULATIVE AND CONJECTURAL." SUCH A REJECTION OF THE AGENCY'S
VIEWS WAS INAPPROPRIATE AND A MISCONCEPTION OF THE NATURE OF THESE
CRITERIA. WE BELIEVE THAT INHERENT IN DETERMINING WHETHER OR NOT A
PROPOSED UNIT WILL PROMOTE THE EFFICIENCY OF AGENCY OPERATIONS IS THE
NEED TO ANTICIPATE THE IMPACT OF A GIVEN UNIT STRUCTURE ON THE AGENCY'S
OPERATIONS. JUST AS THE ASSISTANT SECRETARY CONSIDERED ECONOMIC SAVINGS
AND INCREASED PRODUCTIVITY WHICH "COULD RESULT," THE ASSISTANT SECRETARY
MUST ALSO CONSIDER THE COSTS AND INEFFICIENT USE OF RESOURCES THAT, IN
MANAGEMENT'S OPINION, "COULD RESULT" FROM SUCH A UNIT STRUCTURE. THE
SPECULATIVE AND CONJECTURAL NATURE OF A CONTENTION, IN THESE
CIRCUMSTANCES, DOES NOT IN AND OF ITSELF RENDER THE CONTENTION WITHOUT
MERIT.
AS TO THE SPECIFICS OF THE AGENCY'S CONTENTIONS, THE ASSISTANT
SECRETARY STATED:
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 . . . 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, AND THAT IT WOULD BE A HARDSHIP ON HIS OFFICE IF SEVERAL
AGREEMENTS WERE REQUIRED
BECAUSE THIS WOULD REQUIRE EXPENDITURES 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. (FOOTNOTE OMITTED.)
IN OUR VIEW, RATHER THAN BEING REJECTED, IN PART, AS "SPECULATIVE,"
THE CONTENTIONS OF THE AGENCY WERE VALID CONSIDERATIONS TO BE WEIGHED IN
DETERMINING WHETHER THE PROPOSED UNIT WOULD PROMOTE EFFICIENCY OF AGENCY
OPERATIONS. AS WE HAVE INDICATED, A POLICY OF THE ORDER IS THE
PROMOTION OF MORE COMPREHENSIVE BARGAINING UNITS. HENCE, THE ACTIVITY'S
CONTENTION THAT A REGIONWIDE UNIT OF EMPLOYEES PERFORMING THE SAME JOBS
IN AN ORGANIZATION WITH THE SAME MISSION AND SUBJECT TO THE SAME
PERSONNEL POLICIES AND SUPERVISION WOULD DO MORE TO PROMOTE EFFICIENCY
OF AGENCY OPERATIONS WAS CONSISTENT WITH THE PURPOSES OF THE ORDER.
SIMILARLY, WHILE NOT DISPOSITIVE, THE EFFICIENT USE OF AGENCY
LABOR-MANAGEMENT RELATIONS AND FINANCIAL RESOURCES IS A VALID FACTOR IN
DETERMINING EFFICIENCY OF AGENCY OPERATIONS.
WE DO NOT DISAGREE WITH EITHER THE ASSISTANT SECRETARY'S CONCLUSION
THAT MORE THAN COST FACTORS ARE INVOLVED IN A DETERMINATION OF THE
PROMOTION OF EFFICIENCY OF AGENCY OPERATIONS, OR HIS CONCLUSION THAT THE
BENEFITS RESULTING FROM EMPLOYEE REPRESENTATION BY A LABOR ORGANIZATION
CAN RESULT IN IMPROVED EFFICIENCY OF AGENCY OPERATIONS. HOWEVER, THE
ACCORDING OF EQUAL WEIGHT TO THE EFFICIENCY OF AGENCY OPERATIONS
CRITERIA REQUIRES CAREFUL CONSIDERATION OF THE AGENCY'S REASONED VIEW OF
THE IMPACT OF THE PROPOSED UNIT ON THE EFFICIENCY OF ITS OPERATIONS.
/15/
IN FINDING THAT THE ALTERNATIVE UNIT SOUGHT WOULD PROMOTE EFFECTIVE
DEALINGS, THE ASSISTANT SECRETARY NOTED THAT THE UNIT WOULD PROMOTE
EFFECTIVE DEALINGS TO THE EXTENT THAT THE INDIVIDUALS MOST CONCERNED
WITH LABOR-MANAGEMENT RELATIONS, FISCAL MATTERS AND THE DIRECTION OF
OPERATIONS ARE LOCATED ORGANIZATIONALLY WITHIN THE UNIT FOUND
APPROPRIATE. THEREAFTER, RELYING ON THE AMENDMENTS TO SECTION 11(A) OF
THE ORDER IN E.O. 11383, /16/ THE ASSISTANT SECRETARY STATED:
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 OF 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, OF DISTRICT LEVELS,
AND THAT, THEREFORE, UNITS OF LESS BROAD PROPORTIONS COULD BE
APPROPRIATE.
THE ASSISTANT SECRETARY'S RELIANCE ON THE RECENT AMENDMENTS TO
SECTION 11(A) TO SUPPORT HIS FINDING THAT THE UNIT WOULD PROMOTE
EFFECTIVE DEALINGS IS IN ERROR. AS STATED ABOVE IN FOOTNOTE 7, THE
COUNCIL, IN ITS DECISION IN DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT
ADMINISTRATION SERVICES REGION (DCASR), CLEVELAND, OHIO, DEFENSE
CONTRACT ADMINISTRATION SERVICES OFFICES (DCASO'S), AKRON, OHIO AND
COLUMBUS, OHIO, A/SLMR NO. 372, FLRC NO. 74A-41 (AUG. 13, 1975), REPORT
NO. 80, EMPHASIZED:
(A)S INDICATED IN SECTION V.1. OF THE REPORT ACCOMPANYING E.O. 11838,
THE CHANGES IN
SECTION 11(A) OF THE ORDER WERE INTENDED TO "COMPLEMENT" THE
RECOMMENDATIONS OF THE COUNCIL
RELATING TO THE CONSOLIDATION OF BARGAINING UNITS. THE PURPOSE OF
THOSE RECOMMENDATIONS
(WHICH WERE ADOPTED BY THE PRESIDENT) WAS PRINCIPALLY TO REDUCE THE
UNIT FRAGMENTATION THAT
HAD PREVIOUSLY DEVELOPED AND TO ENCOURAGE THE CREATION OF MORE
COMPREHENSIVE BARGAINING UNITS
IN THE INTEREST OF THE ENTIRE PROGRAM. (FOOTNOTE OMITTED.) /17/
WHILE THE CHANGES IN SECTION 11(A) WERE INTENDED TO EXPAND THE SCOPE
OF BARGAINING BY ELIMINATING UNNECESSARY CONSTRICTIONS ON MEANINGFUL
NEGOTIATIONS WHICH HAD BEEN IMPOSED BY HIGHER LEVEL AGENCY REGULATIONS
NOT CRITICAL TO EFFECTIVE AGENCY MANAGEMENT OR THE PUBLIC INTEREST, THE
CHANGES IN SECTION 11(A) WERE ALSO INTENDED, AS STATED IN FLRC NO.
74A-41, TO COMPLEMENT THE RECOMMENDATIONS OF THE COUNCIL RELATING TO
REDUCTION OF UNIT FRAGMENTATION, WHICH REDUCTION WOULD ALSO SERVE TO
EXPAND THE SCOPE OF BARGAINING. THE ASSISTANT SECRETARY'S RELIANCE ON
THE 11(A) CHANGES TO SUPPORT A FINDING OF A LESS COMPREHENSIVE UNIT IS
THEREFORE TOTALLY INAPPROPRIATE. WHILE THE CHANGES TO SECTION 11(A)
WERE INTENDED TO LESSEN THE IMPACT OF CERTAIN AGENCY REGULATIONS UPON
THE SCOPE OF BARGAINING, CONTRARY TO THE CONCLUSIONS OF THE ASSISTANT
SECRETARY, THEY WERE NOT INTENDED TO REFLECT A POLICY OF ENCOURAGING THE
ESTABLISHMENT OF BARGAINING UNITS A LOWER ORGANIZATIONAL LEVELS WITHIN
AN AGENCY.
WHILE IT IS TRUE THAT UNITS MAY PROMOTE EFFECTIVE DEALINGS AND BE
APPROPRIATE UNDER SECTION 10(B) EVEN IF ESTABLISHED AT LOWER AGENCY
ORGANIZATIONAL LEVELS, IN OUR VIEW IT IS CLEAR THAT, GENERALLY,
EFFECTIVE DEALINGS CAN BE BETTER ACHIEVED IN MORE COMPREHENSIVE UNITS.
AS WE HAVE INDICATED, NEGOTIATIONS COVERING MORE COMPREHENSIVE UNITS
PERMIT THE PARTIES TO ADDRESS A WIDER RANGE OF MATTERS OF CRITICAL
CONCERN TO GREATER NUMBERS OF EMPLOYEES. FOR EXAMPLE, EMPLOYEES OF THE
ENTIRE REGION HEREIN WOULD HAVE IDENTICAL CONCERNS AS TO SUCH MATTERS AS
MERIT STAFFING PROCEDURES, AREAS OF CONSIDERATION, REDUCTION-IN-FORCE
PROCEDURES, AND COMPETITIVE AREAS. MOREOVER, NEGOTIATIONS IN LESS
FRAGMENTED BARGAINING UNIT STRUCTURES ESTABLISHED AT HIGHER
ORGANIZATIONAL LEVELS PERMIT UNIONS AND AGENCIES TO ALLOCATE THEIR
MANPOWER RESOURCES AND SEND TO THE BARGAINING TABLE MORE EXPERIENCED AND
SKILLED NEGOTIATORS WHO SHOULD DO A MORE EFFICIENT JOB OF REACHING A
SATISFACTORY AGREEMENT.
THE INSTANT DECISION OF THE ASSISTANT SECRETARY CLEARLY REFLECTS A
DESIRE THAT NEGOTIATIONS BE CONDUCTED AT THE LOWEST ORGANIZATIONAL
LEVELS POSSIBLE AND, HENCE, AS CLOSE AS POSSIBLE TO THE PARTICULAR
EMPLOYEES WHO WILL BE AFFECTED BY THE OUTCOME OF THE NEGOTIATIONS;
HOWEVER, SUCH A DESIRE CANNOT BE USED AS A RATIONALE FOR CREATING UNITS
IN A MANNER INCONSISTENT WITH THE PURPOSES OF THE ORDER. SUCH
REASONING, CARRIED TO AN EXTREME AS HERE, RESULTS IN THE FRAGMENTATION
OF UNITS CONTRARY TO THE POLICIES SOUGHT TO BE SERVED BY THE ORDER.
MOREOVER, WE DO NOT AGREE THAT THE RESOLUTION OF LOCAL CONCERNS IS
SACRIFICED BY THE CREATION OF MORE COMPREHENSIVE UNITS. TO THE EXTENT
THAT THERE MAY BE CONCERNS UNIQUE TO SOME EMPLOYEES WHICH ARE NOT SHARED
BY AN ENTIRE BROADER UNIT, THERE ARE OBVIOUS, WELL-RECOGNIZED WAYS THAT
THESE CONCERNS MAY BE ADDRESSED WITHIN THE PARAMETERS OF THE BARGAINING
RELATIONSHIP. AND WHILE A UNIT AT A LOWER ORGANIZATIONAL LEVEL MAY
PROVIDE A TEMPORARY VEHICLE TO ADDRESS CERTAIN LOCALIZED PROBLEMS, IN
THE LONG RUN UNITS BROADER IN SCOPE WILL FACILITATE CONSIDERATION AND
RESOLUTION OF A GREATER RANGE OF CONCERNS COMMON TO EMPLOYEES AND WILL
BETTER SERVE THE INTERESTS OF BOTH THE EMPLOYEES AND THE AGENCIES. IT
WAS TO ACHIEVE THIS END THAT THE POLICIES OF THE ORDER WERE ADOPTED.
THUS, THE ASSISTANT SECRETARY'S CONTRARY UNIT DETERMINATION WAS
INCONSISTENT WITH THESE PURPOSES OF THE ORDER.
AS PREVIOUSLY STATED WITH RESPECT TO A/SLMR NO. 461, THE ASSISTANT
SECRETARY MUST DECIDE APPROPRIATE UNIT QUESTIONS CONSONANT WITH THE
POLICY OF THE ORDER OF PREVENTING AND REDUCING FRAGMENTATION IN THE
BARGAINING UNIT STRUCTURE OF THE FEDERAL LABOR-MANAGEMENT RELATIONS
PROGRAM. IN FINDING APPROPRIATE THE ALTERNATIVE UNIT SOUGHT IN THIS
CASE, THE ASSISTANT SECRETARY'S DECISION PLAINLY CONTRAVENES THAT POLICY
SINCE HIS DECISION TENDS TO FOSTER AND PROMOTE FRAGMENTATION. ON THE
OTHER HAND, FOR THE REASONS PREVIOUSLY DETAILED AT PAGE 14 ABOVE, THERE
IS NO QUESTION THAT A REGION-WIDE UNIT, IF ALONE SOUGHT, WOULD MEET ALL
OF THE SECTION 10(B) CRITERIA.
WHILE THE EMPLOYEES IN THE SAN FRANCISCO BAY AREA MAY HAVE, AS
DISCUSSED BY THE ASSISTANT SECRETARY, A COMMUNITY OF INTEREST WITH EACH
OTHER AND POSSIBLY SOME DEGREE OF SEPARATION FROM OTHER ELEMENTS BECAUSE
OF SEPARATE LOCAL SUPERVISION AND GEOGRAPHIC DISPERSION, THE
PETITIONED-FOR UNIT WOULD BE INCONSISTENT WITH THE SINGLE ORGANIZATIONAL
STRUCTURE OF THE REGION, ITS CHAIN OF COMMAND AND AUTHORITY, THE UNIFORM
PERSONNEL POLICIES AND PRACTICES WITHIN THE DCASR, AND THE EXISTENCE OF
A SINGLE CIVILIAN PERSONNEL OFFICE. THE UNIT STRUCTURE, WHICH HIS
DECISION PROMOTES WITHIN THE SAN FRANCISCO DCASR, RESULTS IN ARTIFICIAL
DISTINCTIONS BETWEEN EMPLOYEES WHOSE MISSION AND FUNCTIONS, SUPERVISORY
STRUCTURE AND CONDITIONS OF EMPLOYMENT ARE IDENTICAL. FURTHER, AS NOTED
WITH REGARD TO A/SLMR NO. 461, THERE IS NO QUESTION THAT IF THE UNION
SOUGHT RECOGNITION IN A REGIONWIDE UNIT, IT WOULD MEET ALL OF THE
SECTION 10(B) CRITERIA AND, MORE IMPORTANTLY, WOULD BE CONSISTENT WITH
THE ORDER'S POLICY OF PROMOTING A MORE COMPREHENSIVE BARGAINING UNIT
STRUCTURE. MOREOVER, FINDING SUCH A UNIT APPROPRIATE LEFT THE REMAINDER
OF THE REGION FOR FURTHER PIECEMEAL ORGANIZING EFFORTS, THEREBY
RESULTING IN A FRAGMENTED BARGAINING UNIT STRUCTURE, AS ACTUALLY
SUBSEQUENTLY OCCURRED HEREIN.
IN CONCLUSION, THE ASSISTANT SECRETARY'S FINDING THAT THE ALTERNATIVE
UNIT SOUGHT WOULD PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS WAS BASED UPON CONSIDERATIONS WHICH DID NOT PROPERLY PROVIDE
A SHARP DEGREE OF DEFINITION AND PRECISION TO THESE TWO CRITERIA.
INDEED, THE CONSIDERATIONS UPON WHICH THE ASSISTANT SECRETARY RELIED
WERE NOT IMPLEMENTIVE OF AND WERE NOT CONSISTENT WITH THOSE CRITERIA.
AS A RESULT, THE ASSISTANT SECRETARY FAILED PROPERLY TO GIVE EQUAL
WEIGHT TO THESE CRITERIA IN HIS DECISION.
IN SUMMARY, IN THE CIRCUMSTANCES OF THIS CASE AS REFLECTED IN THE
RECORD BEFORE US, EQUAL APPLICATION OF THE THREE CRITERIA IN SECTION
10(B) AND THE RESULTING CONSISTENCY WITH THE PURPOSES OF THE ORDER,
WOULD DICTATE A FINDING THAT THE ALTERNATIVE UNIT SOUGHT HEREIN IS NOT
AN APPROPRIATE UNIT FOR THE PURPOSES OF EXCLUSIVE RECOGNITION UNDER THE
ORDER.
A/SLMR NO. 564
IN THIS CASE, THE ASSISTANT SECRETARY FOUND THAT THE EMPLOYEES IN THE
PETITIONED-FOR UNIT, THE SEATTLE DCASD, INCLUDING THE PORTLAND DCASO,
SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND
DISTINCT FROM OTHER EMPLOYEES OF THE REGION. IN RESPONSE TO THE
ACTIVITY'S CLAIM THAT SUCH A UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS
OR EFFICIENCY OF AGENCY OPERATIONS, THE ASSISTANT SECRETARY FOUND THAT
THE ACTIVITY TOOK THE IDENTICAL POSITION THAT IT TOOK IN A/SLMR NO. 461;
HE REJECTED THE ACTIVITY'S POSITION PARTLY ON THE BASIS OF THE
CIRCUMSTANCES RECITED IN A/SLMR NO. 559 AND HIS REASONING THEREIN. THE
ASSISTANT SECRETARY CONCLUDED:
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 WHERE LESS THAN
REGION-WIDE UNITS HAVE
BEEN RECOGNIZED OR CERTIFIED AND WHERE THERE CURRENTLY EXIST
NEGOTIATED AGREEMENTS, I FIND
THAT THE PETITIONED-FOR DISTRICT-WIDE UNIT WILL PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS. (FOOTNOTE OMITTED.)
WHILE THE ASSISTANT SECRETARY MADE AN AFFIRMATIVE FINDING THAT THE
PROPOSED UNIT MET ALL OF THE APPROPRIATE UNIT CRITERIA OF SECTION 10(B),
WE MUST AGAIN CONCLUDE THAT IN DOING SO HE DID NOT FULLY MEET THOSE
OBLIGATIONS, OUTLINED PREVIOUSLY HEREIN, WHICH THE ORDER IMPOSES UPON
HIM. SPECIFICALLY, A REVIEW OF THE RECORD REVEALS THAT THE ASSISTANT
SECRETARY FAILED TO MAKE AN AFFIRMATIVE EFFORT TO DEVELOP AS COMPLETE A
RECORD AS POSSIBLE WITH REGARD TO THE CRITERIA OF "EFFECTIVE DEALINGS"
AND "EFFICIENCY OF AGENCY OPERATIONS." /18/ WHILE THE TESTIMONY AND
ARGUMENTS ADVANCED BY THE ACTIVITY AS TO WHY THE PROPOSED UNIT WOULD NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS MAY NOT
HAVE PROVIDED THE ASSISTANT SECRETARY WITH A SUFFICIENT BASIS ON WHICH
TO MAKE A DETERMINATION, AS WE HAVE INDICATED, THE DEVELOPMENT OF SUCH
EVIDENCE DOES NOT STOP WITH THE PARTIES. IT IS THE RESPONSIBILITY OF
THE ASSISTANT SECRETARY TO DEVELOP AS COMPLETE A RECORD AS POSSIBLE WITH
REGARD TO EACH OF THE THREE CRITERIA, SOLICITING EVIDENCE FROM THE
PARTIES AS NECESSARY; HE DID NOT DO SO HERE.
WITH REGARD TO THE CIRCUMSTANCES WHICH HE PARTICULARLY NOTED IN
FINDING THAT THE UNIT SOUGHT WOULD PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS, THE ASSISTANT SECRETARY PLAINLY FAILED
TO MAKE AN AFFIRMATIVE DETERMINATION THAT THE UNIT EQUALLY SATISFIED
EACH OF THE 10(B) CRITERIA. AS WE INDICATED PREVIOUSLY, THE EXPERIENCE
OF AN AGENCY AND LABOR ORGANIZATION UNDER A GIVEN UNIT STRUCTURE MAY BE
CONSIDERED IN DETERMINING WHETHER A PETITIONED-FOR UNIT SATISFIES THE
THREE CRITERIA SET FORTH IN SECTION 10(B) OF THE ORDER. HOWEVER, THE
ASSISTANT SECRETARY MAY NOT RELY UPON "THE ABSENCE OF ANY SPECIFIC
COUNTERVAILING EVIDENCE . . . AS TO A LACK OF EFFECTIVE DEALINGS AND
EFFICIENCY OF OPERATIONS" IN OTHER EXISTING BARGAINING UNITS TO MAKE AN
AFFIRMATIVE FINDING REGARDING THESE CRITERIA IN A PROPOSED UNIT.
RATHER, AS WE HAVE PREVIOUSLY EMPHASIZED, IT IS THE RESPONSIBILITY OF
THE ASSISTANT SECRETARY TO DEVELOP AS COMPLETE A RECORD AS POSSIBLE WITH
REGARD TO EACH OF THE THREE CRITERIA, SOLICITING EVIDENCE FROM THE
PARTIES AS NECESSARY; TO GIVE FULL AND CAREFUL CONSIDERATION TO ALL
RELEVANT EVIDENCE IN THE RECORD; AND THEN TO GROUND HIS DECISION UPON A
CAREFUL, THOROUGH ANALYSIS OF EVIDENTIARY CONSIDERATIONS OR FACTORS
WHICH PROVIDE A SHARP DEGREE OF DEFINITION AND PRECISION TO EACH OF THE
THREE CRITERIA. WHERE THE ASSISTANT SECRETARY FINDS A UNIT TO BE
APPROPRIATE FOR PURPOSES OF EXCLUSIVE RECOGNITION, HE MUST MAKE AN
AFFIRMATIVE DETERMINATION THAT A UNIT EQUALLY SATISFIES EACH OF THE
10(B) CRITERIA. RELIANCE UPON A LACK OF EVIDENCE FAILS TO SATISFY THE
REQUIREMENT IN THE ORDER THAT THE ASSISTANT SECRETARY MAKE SUCH AN
AFFIRMATIVE DETERMINATION.
ACCORDINGLY, FOR THE REASONS FULLY DISCUSSED ABOVE IN REGARD TO THE
ASSISTANT SECRETARY'S DECISION IN A/SLMR NO. 559, WE MUST LIKEWISE
REJECT THE ASSISTANT SECRETARY'S RELIANCE UPON THAT DECISION IN REACHING
HIS DECISION IN A/SLMR NO. 564. IN SUMMARY, IN THE CIRCUMSTANCES OF
THIS CASE AS REFLECTED IN THE RECORD BEFORE US, EQUAL APPLICATION OF THE
THREE CRITERIA IN SECTION 10(B) AND THE RESULTING CONSISTENCY WITH THE
PURPOSES OF THE ORDER, WOULD DICTATE A FINDING THAT THE UNIT SOUGHT
HEREIN IS NOT AN APPROPRIATE UNIT FOR PURPOSES OF EXCLUSIVE RECOGNITION
UNDER THE ORDER. HOWEVER, AS NOTED WITH REGARD TO BOTH A/SLMR NO. 461
AND A/SLMR NO. 559, THERE IS NO QUESTION THAT IF THE UNION SOUGHT
RECOGNITION IN A REGIONWIDE UNIT, IT WOULD MEET ALL OF THE SECTION 10(B)
CRITERIA AND, MORE IMPORTANTLY, WOULD BE CONSISTENT WITH THE ORDER'S
POLICY OF PROMOTING A MORE COMPREHENSIVE UNIT STRUCTURE.
CONCLUSION
FOR THE FOREGOING REASONS, WE FIND THAT THE ASSISTANT SECRETARY'S
DECISION AND DIRECTION OF ELECTION IN EACH OF THE ABOVE-ENTITLED CASES
IS INCONSISTENT WITH THE PURPOSES OF THE ORDER. ACCORDINGLY, PURSUANT
TO SECTION 2411.18(B) OF THE COUNCIL'S RULES OF PROCEDURE, WE SET ASIDE
THE ASSISTANT SECRETARY'S DECISIONS AND REMAND THE CASES TO HIM FOR
ACTION CONSISTENT WITH OUR DECISION HEREIN.
IN THIS REGARD, WE HAVE BEEN ADMINISTRATIVELY ADVISED THAT THE
ASSISTANT SECRETARY CURRENTLY HAS UNDER CONSIDERATION A PETITION FOR
CONSOLIDATION OF UNITS REPRESENTED BY AFGE WITHIN THE DEFENSE SUPPLY
AGENCY, INCLUDING THE UNITS INVOLVED HEREIN. (ASSISTANT SECRETARY CASE
NO. 22-07578-UC). SHOULD THE ASSISTANT SECRETARY DETERMINE THAT A
CONSOLIDATED UNIT IS APPROPRIATE, IT WOULD NOT BE INCONSISTENT WITH THIS
DECISION TO INCLUDE THE UNITS INVOLVED HEREIN IN SUCH A CONSOLIDATED
UNIT BY REASON OF THE SPECIAL CIRCUMSTANCES HERE INVOLVED, INCLUDING THE
FACT THAT THE EMPLOYEES IN THESE UNITS HAVE PREVIOUSLY INDICATED THROUGH
THE ELECTION PROCESS THAT THEY WISH AFGE TO SERVE AS THEIR EXCLUSIVE
REPRESENTATIVE AND THE LENGTH OF TIME WHICH HAS ELAPSED SINCE THE
ELECTIONS. OF COURSE, IF A CONSOLIDATION ELECTION SHOULD BE HELD TO
DETERMINE WHETHER THE EMPLOYEES IN THE PROPOSED CONSOLIDATED UNIT WISH
TO BE REPRESENTED IN THAT UNIT, THE EMPLOYEES IN THE THREE UNITS
INVOLVED HEREIN WOULD HAVE THE OPTIONS ONLY OF BEING REPRESENTED IN THE
CONSOLIDATED UNIT OR BEING UNREPRESENTED-- UNLESS, OF COURSE, AFGE FILES
A SEPARATE PETITION SEEKING TO REPRESENT THE EMPLOYEES INVOLVED HEREIN
IN A REGIONWIDE UNIT WHICH, AS ALREADY INDICATED, WOULD BE APPROPRIATE.
BY THE COUNCIL.
HENRY B. FRAZIER, III
EXECUTIVE DIRECTOR
ISSUED: DECEMBER 30, 1976
/1/ 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., 1 FLRC 219 (FLRC NO. 71A-46 (NOV. 20,
1972), REPORT NO. 30).
/2/ SECTION 11(A) 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 FOR WHICH A COMPELLING
NEED EXISTS UNDER CRITERIA ESTABLISHED BY THE FEDERAL LABOR RELATIONS
COUNCIL AND WHICH ARE
ISSUED AT THE AGENCY HEADQUARTERS LEVEL OR AT THE LEVEL OF A PRIMARY
NATIONAL SUBDIVISION; A
NATIONAL OR OTHER CONTROLLING AGREEMENT AT A HIGHER
LEVEL IN THE AGENCY; AND THIS ORDER . . .
/3/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975), AT 37.
/4/ DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION,
SOUTHWEST REGION, TULSA AIRWAY FACILITIES SECTOR, FLRC NO. 74A-28 (MAY
9, 1975), REPORT NO. 69.
/5/ A REVIEW OF THE RECORD INDICATES THAT, AS TO EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS, THE HEARING OFFICER ASKED A FEW
QUESTIONS CONCERNING THE DELEGATED AUTHORITY OF CERTAIN MANAGEMENT
OFFICIALS TO NEGOTIATE AND SIGN A COLLECTIVE BARGAINING AGREEMENT AND
ASKED AN AGENCY WITNESS ONLY THREE INSUBSTANTIAL QUESTIONS CONCERNING
WHETHER THE PROPOSED UNIT WOULD IMPAIR EFFICIENCY OF AGENCY OPERATIONS.
/6/ IN TESTIMONY BEFORE THE ASSISTANT SECRETARY'S HEARING OFFICER AND
IN ITS POSTHEARING BRIEF TO THE ASSISTANT SECRETARY, THE AGENCY
PRESENTED EVIDENCE REGARDING EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS AS WELL AS EVIDENCE REGARDING COMMUNITY OF INTEREST OF THE
EMPLOYEES INVOLVED. THE SAN FRANCISCO REGION CIVILIAN PERSONNEL OFFICER
TESTIFIED AT THE HEARING, AMONG OTHER THINGS, IN EFFECT, THAT IT WOULD
BE MORE EFFICIENT FOR THE REGION TO NEGOTIATE AND DEAL WITH THE
EXCLUSIVE REPRESENTATIVE OF EMPLOYEES IN A SINGLE REGIONWIDE UNIT RATHER
THAN WITH REPRESENTATIVES OF EMPLOYEES IN A MULTIPLICITY OF UNITS WITHIN
THE REGION. IN THIS REGARD, HE TESTIFIED IN EFFECT THAT THE SMALLER
SALT LAKE CITY UNIT WOULD, BY CREATING THE POSSIBILITY OF MULTIPLE UNITS
IN THE REGION, IMPAIR EFFICIENCY BY EXCEEDING THE CAPACITIES OF THE
AGENCY'S LIMITED LABOR-MANAGEMENT RELATIONS STAFF. IN ITS POSTHEARING
BRIEF TO THE ASSISTANT SECRETARY, THE AGENCY ARGUED, AMONG OTHER THINGS,
THAT THE SIZE AND COMPOSITION OF THE PROPOSED UNIT, THE POTENTIAL FOR
MEANINGFUL NEGOTIATIONS, AND THE AVAILABILITY OF PERSONNEL MANAGEMENT
RESOURCES ALL DEMONSTRATE THAT ONE REGIONWIDE UNIT WOULD MORE LIKELY
PROMOTE EFFICIENCY OF AGENCY OPERATIONS AND EFFECTIVE DEALINGS
/7/ IN REJECTING THE AGENCY'S CONTENTION THAT THE CERTIFICATION OF A
LESS-THAN-REGIONWIDE UNIT WOULD LIMIT THE SCOPE OF NEGOTIATIONS SOLELY
TO THOSE MATTERS WITHIN THE DELEGATED DISCRETIONARY AUTHORITY OF THE
COMMANDER OF THE DISTRICT OFFICE, THE ASSISTANT SECRETARY RELIED ON HIS
DECISION IN A/SLMR NO. 372 WHEREIN HE HAD, IN TURN, RELIED ON THE
COUNCIL'S DECISION IN UNITED FEDERATION OF COLLEGE TEACHERS, LOCAL 1460
AND U.S. MERCHANT MARINE ACADEMY, 1 FLRC 211 (FLRC NO. 71A-15 (NOV. 20,
1972), REPORT NO. 30). HOWEVER, A/SLMR NO. 372 WAS SUBSEQUENTLY
REVIEWED BY THE COUNCIL IN DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT
ADMINISTRATION SERVICES REGION (DCASR), CLEVELAND, OHIO, DEFENSE
CONTRACT ADMINISTRATION SERVICES OFFICES (DCASO'S), AKRON, OHIO AND
COLUMBUS, OHIO, A/SLMR NO. 372, FLRC NO. 74A-41 (AUG. 13, 1975), REPORT
NO. 80. THE COUNCIL SET ASIDE THE ASSISTANT SECRETARY'S DECISION
THEREIN AND REMANDED THE CASE TO HIM. IN DOING SO, THE COUNCIL STATED,
AS TO THE ASSISTANT SECRETARY'S RELIANCE UPON MERCHANT MARINE AND AS TO
THE RELATIONSHIP OF THE AMENDMENTS TO SECTION 11(A) OF THE ORDER TO THE
PRINCIPLES ENUNCIATED IN MERCHANT MARINE:
TURNING TO THE INSTANT CASE (DSA, CLEVELAND), IT IS CLEAR THAT THE
ASSISTANT SECRETARY HAS
MISINTERPRETED AND MISAPPLIED THE MERCHANT MARINE DECISION. FOR
UNDER THE ORDER, AS PRESENTLY
EFFECTIVE, LABOR RELATIONS AND PERSONNEL POLICIES AS ESTABLISHED
(AND, OF COURSE, PUBLISHED)
BY THE DCASR HEADQUARTERS MAY PROPERLY SERVE TO BAR THE MATTER
CONCERNED FROM THE SCOPE OF
BARGAINING UNDER SECTION 11(A) OF THE ORDER. SINCE THESE MATTERS
WOULD THUS BE OUTSIDE THE
SCOPE OF BARGAINING AT THE DCASO LEVEL, DCASR, UNDER THE MERCHANT
MARINE DECISION, WOULD BE
UNDER NO OBLIGATION TO PROVIDE REPRESENTATIVES TO NEGOTIATE AND ENTER
INTO AGREEMENT ON SUCH
MATTERS AT THE DCASO LEVEL.
THUS, AS THE ASSISTANT SECRETARY, IN FINDING THE SEPARATE DCASO UNITS
APPROPRIATE IN THE
PRESENT CASE, RELIED IN PART ON AN ERRONEOUS INTERPRETATION AND
APPLICATION OF THE MERCHANT
MARINE DECISION, WE SHALL REMAND THE CASE TO HIM FOR RECONSIDERATION
AND DISPOSITION
CONSISTENT WITH OUR OPINION.
WE ARE MINDFUL IN THE ABOVE REGARD THAT UNDER THE AMENDMENTS TO
SECTION 11(A), ADOPTED IN
E.O. 11838 AND TO BECOME EFFECTIVE 90 DAYS AFTER THE COUNCIL ISSUES
THE CRITERIA FOR
DETERMINING "COMPELLING NEED," DCASR DIRECTIVES AS SUCH WOULD NOT
THEREAFTER SERVE TO LIMIT
THE SCOPE OF BARGAINING AT THE DCASO LEVEL-- BECAUSE DCASR APPEARS TO
BE A SUBDIVISION BELOW
THE LEVEL OF "AGENCY HEADQUARTERS" OR "THE LEVEL OF A PRIMARY
NATIONAL SUBDIVISION." HOWEVER,
THE ASSISTANT SECRETARY SHOULD CAREFULLY EXAMINE THE REGULATORY
FRAMEWORK OF DSA, INCLUDING
THE DCASR'S, WHICH PREVAILS AT THE TIME OF HIS RECONSIDERATION AND
THEN WEIGHT THE IMPACT
THEREON OF MERCHANT MARINE AS PROPERLY INTERPRETED AND APPLIED TO THE
EXISTING CIRCUMSTANCES
IN ORDER THAT THE THREE CRITERIA IN SECTION 10(B) CAN BE PROPERLY
APPLIED. MOREOVER, IN SO
APPLYING MERCHANT MARINE, THE ASSISTANT SECRETARY SHOULD CAREFULLY
CONSIDER THAT THE
AMENDMENTS TO SECTION 11(A) AS ADOPTED IN E.O. 11838 WERE NOT
DESIGNED TO RENDER FRAGMENTED
UNITS APPROPRIATE.
IN THE ABOVE REGARD, AS INDICATED IN SECTION V.1. OF THE REPORT
ACCOMPANYING E.O. 11838,
THE CHANGES IN SECTION 11(A) OF THE ORDER WERE INTENDED TO
"COMPLEMENT" THE RECOMMENDATIONS OF
THE COUNCIL RELATING TO THE CONSOLIDATION OF BARGAINING UNITS. THE
PURPOSE OF THOSE
RECOMMENDATIONS (WHICH WERE ADOPTED BY THE PRESIDENT) WAS PRINCIPALLY
TO REDUCE THE UNIT
FRAGMENTATION THAT HAD PREVIOUSLY DEVELOPED AND TO ENCOURAGE THE
CREATION OF MORE
COMPREHENSIVE BARGAINING UNITS IN THE INTEREST OF THE ENTIRE PROGRAM.
(FOOTNOTES OMITTED.)
/8/ SEE PAGE 7 SUPRA.
/9/ IN THIS REGARD, WE NOTE, AS DID THE AGENCY IN TESTIMONY AND BRIEF
BEFORE THE ASSISTANT SECRETARY, THAT THE ASSISTANT SECRETARY EARLIER
CONSIDERED AND REJECTED AS INAPPROPRIATE VARIOUS LESS-THAN-REGIONWIDE
UNITS IN THE SAN FRANCISCO DCASR RANGING IN SIZE FROM 18 TO 686
EMPLOYEES. HE FOUND SUCH UNITS "WOULD ARTIFICALLY (SIC) DIVIDE AND
FRAGMENT . . . OPERATIONS, AND CANNOT BE REASONABLY EXPECTED TO PROMOTE
EFFECTIVE DEALINGS OR EFFICIENCY OF OPERATIONS." DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR), SAN FRANCISCO,
A/SLMR NO. 112 (NOV. 30, 1971), DECISION BY THE THEN ASSISTANT
SECRETARY. THIS PRECEDENTIAL DECISION WAS NEITHER DISCUSSED NOR EVEN
ADVERTED TO IN THE INSTANT CASE.
/10/ WE DO NOT HERE DECIDE THAT THE FACTORS RELIED UPON BY THE
ASSISTANT SECRETARY ESTABLISH A SEPARATE COMMUNITY OF INTEREST FOR THE
EMPLOYEES IN THE UNIT FOUND APPROPRIATE. INDEED, MANY OF THE FACTORS
RELIED UPON BY THE ASSISTANT SECRETARY INDICATE A COMMUNITY OF INTEREST
THAT IS REGIONWIDE IN SCOPE RATHER THAN LIMITED TO THE EMPLOYEES IN THE
UNIT SOUGHT BY THE UNION.
/11/ A REVIEW OF THE RECORD DISCLOSES THAT THE HEARING OFFICER DID
NOT AT ANY TIME SOLICIT TESTIMONY CONCERNING THE CRITERIA OF EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS, LIMITING DIRECT
QUESTIONING SOLELY TO INDICIA OF COMMUNITY OF INTEREST AMONG EMPLOYEES
WITHIN THE UNIT SOUGHT.
/12/ 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., 1 FLRC 219 (FLRC NO. 71A-46 (NOV. 20,
1972), REPORT NO. 30); 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 (JUNE 10, 1975), REPORT NO.
73 (AFF'D NATIONAL BROILER COUNCIL, INC. V. FEDERAL LABOR RELATIONS
COUNCIL, CIVIL ACTION NO. 147-47-A (E.D. VA., SEPT. 5, 1975)).
/13/ SECTION 12(B)(4) PROVIDES IN PERTINENT PART:
SEC. 12. BASIS PROVISIONS OF AGREEMENTS. EACH AGREEMENT BETWEEN AN
AGENCY AND A LABOR
ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
ACCORDANCE WITH APPLICABLE LAWS
AND REGULATIONS--
(4) TO MAINTAIN THE EFFICIENCY OF THE GOVERNMENT OPERATIONS ENTRUSTED
TO THEM.
/14/ IN THIS REGARD, THE SAME CONCERN ABOUT FRAGMENTATION MIGHT HAVE
BEEN EXPRESSED ABOUT ANY UNREPRESENTED PORTION OF THE REGION, FOR
EXAMPLE, THE SEATTLE DCASD, WHICH IN ALL SIGNIFICANT RESPECTS HAD THE
SAME RELATIONSHIP WITH THE DCASR HEADQUARTERS AS THE HAWAII RESIDENCY
OFFICE.
/15/ IN THIS REGARD, AGENCY TESTIMONY CONCERNING THE EFFICIENCIES IN
AGENCY OPERATIONS EXPERIENCED IN OTHER UNITS WOULD BE RELEVANT, AS WOULD
TESTIMONY CONCERNING THE EFFECTIVENESS OF DEALINGS IN SUCH UNITS.
/16/ NOTE 2 SUPRA.
/17/ IN THE SUBJECT DECISION, A/SLMR NO. 559, THE ASSISTANT SECRETARY
TOOK NOTE OF THIS LANGUAGE IN FLRC NO. 74A-41, BUT CONCLUDED THAT HE DID
NOT FIND THIS CONCEPT TO BE INCONSISTENT WITH THE CONTINUED EXISTENCE OR
ESTABLISHMENT OF UNITS LESS COMPREHENSIVE THAN REGION OR DISTRICTWIDE,
WHICH OTHERWISE MEET THE TESTS OF APPROPRIATENESS UNDER THE ORDER.
/18/ A REVIEW OF THE RECORD DISCLOSES THAT THE HEARING OFFICER DID
NOT AT ANY TIME SOLICIT TESTIMONY CONCERNING THE CRITERIA OF EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS, LIMITING DIRECT
QUESTIONING SOLELY TO INDICIA OF COMMUNITY OF INTEREST AMONG EMPLOYEES
WITHIN THE UNIT SOUGHT.
7 A/SLMR 884; P. 681; CASE NOS. 53-6652(RO), 53-6733(RO); AUGUST
29, 1977.
AUGUST 29, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF SECOND SUPPLEMENTAL DECISION AND ORDER
OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
DEFENSE SUPPLY AGENCY, DEFENSE
CONTRACT ADMINISTRATION SERVICES
REGION (DCASR), CLEVELAND, OHIO,
DEFENSE CONTRACT ADMINISTRATION
SERVICES OFFICE (DCASO), COLUMBUS, OHIO
DEFENSE SUPPLY AGENCY, DEFENSE
CONTRACT ADMINISTRATION SERVICES
REGION (DCASR), CLEVELAND, OHIO,
DEFENSE CONTRACT ADMINISTRATION
SERVICES OFFICE (DCASO), AKRON, OHIO
A/SLMR NO. 884
ON JULY 29, 1976, THE ASSISTANT SECRETARY ISSUED A SUPPLEMENTAL
DECISION IN A/SLMR NO. 687, PURSUANT TO THE FEDERAL LABOR RELATIONS
COUNCIL'S (COUNCIL) DECISION ON APPEAL IN FLRC NO. 74A-41, FINDING, IN
ESSENCE, THAT THE SEPARATELY PETITIONED FOR UNITS WERE APPROPRIATE FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER.
ON JULY 20, 1977, THE COUNCIL ISSUED ITS DECISION ON APPEAL OF THE
ASSISTANT SECRETARY'S SUPPLEMENTAL DECISION IN FLRC NO. 76A-97, FINDING,
IN ESSENCE, THAT NEITHER OF THE PETITIONED FOR UNITS ARE APPROPRIATE FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER.
BASED ON THE COUNCIL'S HOLDING IN FLRC NO. 76A-97 AND THE RATIONALE
CONTAINED THEREIN, THE ASSISTANT SECRETARY ORDERED THAT THE
CERTIFICATION OF REPRESENTATIVE PREVIOUSLY ISSUED TO LOCAL 73, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, AND LOCAL 3426, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, BE REVOKED, AND THAT THE PETITIONS BE
DISMISSED.
DEFENSE SUPPLY AGENCY, DEFENSE
CONTRACT ADMINISTRATION SERVICES
REGION (DCASR), CLEVELAND, OHIO,
DEFENSE CONTRACT ADMINISTRATION
SERVICES OFFICE (DCASO), COLUMBUS,
OHIO /1/
ACTIVITY
CASE NO. 53-6652(RO),
A/SLMR NOS. 372 AND 687,
FLRC NOS. 74A-41 AND 76A-97
AND
LOCAL 73, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
PETITIONER
DEFENSE SUPPLY AGENCY, DEFENSE
CONTRACT ADMINISTRATION SERVICES
REGION (DCASR), CLEVELAND, OHIO,
DEFENSE CONTRACT ADMINISTRATION
SERVICES OFFICE (DCASO), AKRON, OHIO
ACTIVITY
CASE NO. 53-6733(RO),
A/SLMR NOS. 372 AND 687,
FLRC NOS. 74A-41 AND 76A-97
AND
LOCAL 3426, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
PETITIONER
SECOND SUPPLEMENTAL DECISION AND ORDER
ON JULY 29, 1976, THE ASSISTANT SECRETARY ISSUED A SUPPLEMENTAL
DECISION IN THE ABOVE-CAPTIONED CASES IN A/SLMR NO. 687, PURSUANT TO THE
FEDERAL LABOR RELATIONS COUNCIL'S (COUNCIL) DECISION ON APPEAL OF THE
SUBJECT CASES IN FLRC NO. 74A-41. IN HIS SUPPLEMENTAL DECISION, THE
ASSISTANT SECRETARY FOUND, IN ESSENCE, THAT THE SEPARATELY PETITIONED
FOR UNITS WERE APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
UNDER THE ORDER. /2/
THEREAFTER, ON JULY 20, 1977, THE COUNCIL ISSUED ITS DECISION ON
APPEAL OF THE ASSISTANT SECRETARY'S SUPPLEMENTAL DECISION IN THE SUBJECT
CASES IN FLRC NO. 76A-97. IN ESSENCE, THE COUNCIL CONCLUDED THAT
NEITHER OF THE PETITIONER FOR UNITS INVOLVED HEREIN ARE APPROPRIATE FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER, AND IT REMANDED
THE CASES TO THE ASSISTANT SECRETARY FOR 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 CERTIFICATION OF
REPRESENTATIVE PREVIOUSLY ISSUED TO THE PETITIONERS INVOLVED HEREIN BE
REVOKED, AND THAT THE PETITIONS HEREIN BE DISMISSED.
ORDER
IT IS HEREBY ORDERED THAT THE CERTIFICATIONS OF REPRESENTATIVE ISSUED
IN CASE NOS. 53-6652(RO) AND 53-6733(RO) BE, AND THEY HEREBY ARE,
REVOKED, AND THAT THE PETITIONS IN CASE NOS. 53-6652(RO) AND 53-6733(RO)
BE, AND THEY HEREBY ARE, DISMISSED.
DATED, WASHINGTON, D.C.
AUGUST 29, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ SUBSEQUENT TO THE FILING OF THE APPEAL IN FLRC NO. 76A-97, THE
NAME OF THE AGENCY INVOLVED WAS CHANGED TO DEFENSE LOGISTICS AGENCY.
/2/ PURSUANT TO THE DECISION AND DIRECTION OF ELECTIONS IN A/SLMR NO.
372, I HAVE BEEN ADMINISTRATIVELY ADVISED THAT CERTIFICATIONS OF
REPRESENTATIVE WERE ISSUED BY THE AREA ADMINISTRATOR TO THE PETITIONERS
INVOLVED HEREIN.
UNITED STATES
FEDERAL LABOR RELATIONS COUNCIL
WASHINGTON, D.C. 20415
DEFENSE SUPPLY AGENCY, DEFENSE
CONTRACT ADMINISTRATION SERVICES
REGION (DCASR), CLEVELAND, OHIO,
DEFENSE CONTRACT ADMINISTRATION
SERVICES OFFICES (DCASO'S), AKRON,
OHIO, AND COLUMBUS, OHIO
AND
LOCAL 3426, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
A/SLMR NO. 687
FLRC NO. 76A-97
AND
LOCAL 73, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
DECISION ON APPEAL FROM ASSISTANT SECRETARY SUPPLEMENTAL
DECISION
BACKGROUND OF CASE
THIS APPEAL AROSE FROM A SUPPLEMENTAL DECISION OF THE ASSISTANT
SECRETARY IN WHICH HE FOUND THAT TWO PROPOSED BARGAINING UNITS IN THE
DEFENSE SUPPLY AGENCY, /1/ DEFENSE CONTRACT ADMINISTRATION SERVICES
REGION (DCASR), CLEVELAND, OHIO, WERE APPROPRIATE AND LEFT UNDISTURBED
CERTIFICATIONS PREVIOUSLY ISSUED TO LOCAL 3426, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES (AFGE) AND LOCAL 73, NATIONAL FEDERATION OF FEDERAL
EMPLOYEES (NFFE), RESPECTIVELY.
THE ASSISTANT SECRETARY'S DECISION AND SUPPLEMENTAL DECISION HEREIN
GREW OUT OF SEPARATE PETITIONS FILED BY AFGE AND NFFE SEEKING TO
REPRESENT UNITS OF CERTAIN EMPLOYEES OF FIELD ACTIVITIES OF THE
CLEVELAND DCASR LOCATED IN AKRON AND COLUMBUS, RESPECTIVELY. THE
CLEVELAND DCASR IS ONE OF NINE REGIONS OF THE DEFENSE SUPPLY AGENCY (DSA
OR THE AGENCY), ALL OF WHICH PROVIDE CONTRACT ADMINISTRATION SERVICES
AND SUPPORT FOR THE DEPARTMENT OF DEFENSE, AS WELL AS OTHER FEDERAL
AGENCIES. THE CLEVELAND DCASR COVERS OHIO, KENTUCKY, MICHIGAN, WESTERN
PENNSYLVANIA, AND CANADA. IT CONSISTS OF A HEADQUARTERS ORGANIZATION
AND FIELD ACTIVITIES WHICH ARE DIVIDED INTO FIVE DEFENSE CONTRACT
ADMINISTRATION SERVICES DISTRICTS (DCASD'S)-- DETROIT, CINCINNATI, GRAND
RAPIDS, DAYTON, AND CLEVELAND-- AND NINE DEFENSE CONTRACT ADMINISTRATION
SERVICES OFFICES (DCASO'S) LOCATED IN TOLEDO, AKRON, COLUMBUS, OTTAWA
AND AT FIVE PRIVATELY OWNED MANUFACTURING PLANTS. THE FIELD ACTIVITIES
PERFORM BASIC MISSION FUNCTIONS OF THE REGION IN THEIR RESPECTIVE
GEOGRAPHIC AREAS. GENERALLY, THE DCASD'S HAVE ADMINISTRATIVE
RESPONSIBILITY FOR THE ACTIVITIES OF THE DCASO'S. APPROXIMATELY 2,000
CIVILIAN EMPLOYEES ARE EMPLOYED THROUGHOUT THE CLEVELAND DCASR. ALL OF
THE EMPLOYEES OF THE REGION ARE SUBJECT TO UNIFORM PERSONNEL POLICIES
AND PRACTICES ESTABLISHED AT REGIONAL HEADQUARTERS. IN ADDITION TO
UNITS OF 69 AND 65 NONPROFESSIONALS RESPECTIVELY IN THE AKRON AND
COLUMBUS DCASO'S, WHICH ARE THE SUBJECT OF THE INSTANT CASE, THERE WERE,
AT THE TIME OF THE ASSISTANT SECRETARY'S SUPPLEMENTAL DECISION, FIVE
OTHER EXCLUSIVE BARGAINING UNITS WITHIN THE REGION: A UNIT COMPOSED OF
NONPROFESSIONAL EMPLOYEES IN HEADQUARTERS AND A PLANT DCASO IN
CLEVELAND; A UNIT OF DCASR EMPLOYEES IN THREE COUNTIES IN THE STATES OF
OHIO AND PENNSYLVANIA; A UNIT OF EMPLOYEES IN THE CINCINNATI DCASD; A
UNIT IN THE TOLEDO DCASO; AND A UNIT COMPOSED OF EMPLOYEES ASSIGNED TO
THE DETROIT DCASD, THE GRAND RAPIDS DCASD, AND THE OTTAWA DCASO.
IN MARCH 1974, THE ASSISTANT SECRETARY FOUND APPROPRIATE THE SEPARATE
UNITS IN THE AKRON, OHIO DCASO AND IN THE COLUMBUS, OHIO DCASO SOUGHT BY
AFGE AND NFFE, RESPECTIVELY. /2/ (ELECTIONS WERE THEREAFTER CONDUCTED
IN THE UNITS INVOLVED AND CERTIFICATIONS OF REPRESENTATIVE WERE ISSUED
TO AFGE AND NFFE.) THE COUNCIL SUBSEQUENTLY SET ASIDE THAT DECISION,
CONCLUDING THAT IN REACHING HIS DECISION THE ASSISTANT SECRETARY HAD
RELIED ON AN ERRONEOUS INTERPRETATION AND APPLICATION OF MERCHANT
MARINE, /3/ AND REMANDED THE CASE TO HIM FOR RECONSIDERATION AND
DISPOSITION CONSISTENT WITH ITS DECISION. DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR), CLEVELAND,
OHIO, DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICES (DCASO'S), AKRON,
OHIO AND COLUMBUS, OHIO, A/SLMR NO. 372, FLRC NO. 74A-41 (AUG. 13,
1975), REPORT NO. 80. IN THAT DECISION, THE COUNCIL FURTHER STATED THAT
THE ASSISTANT SECRETARY, UPON RECONSIDERATION, SHOULD CAREFULLY EXAMINE
THE EXISTING REGULATORY FRAMEWORK OF DSA, INCLUDING THE DCASR'S, AND
THEN WEIGH THE IMPACT THEREON OF MERCHANT MARINE AS PROPERLY INTERPRETED
AND APPLIED TO THE EXISTING CIRCUMSTANCES IN ORDER THAT THE THREE
CRITERIA IN SECTION 10(B) OF THE ORDER /4/ COULD BE PROPERLY APPLIED.
MOREOVER, THE COUNCIL STATED THAT IN SO APPLYING MERCHANT MARINE, THE
ASSISTANT SECRETARY SHOULD CAREFULLY CONSIDER THAT THE AMENDMENTS TO
SECTION 11(A) AS ADOPTED IN E.O. 11838 /5/ "WERE NOT DESIGNED TO RENDER
FRAGMENTED UNITS APPROPRIATE."
IN THIS REGARD, THE COUNCIL REFERRED TO SECTION V.1. OF THE REPORT
ACCOMPANYING E.O. 11838 FOR THE PROPOSITION THAT THE CHANGES IN SECTION
11(A) OF THE ORDER WERE INTENDED TO "COMPLEMENT" THE RECOMMENDATIONS OF
THE COUNCIL RELATING TO THE CONSOLIDATION OF BARGAINING UNITS. /6/ THE
COUNCIL STATED THAT THOSE RECOMMENDATIONS (WHERE WERE ADOPTED BY THE
PRESIDENT) HAD AS THEIR PRINCIPAL PURPOSE "TO REDUCE THE UNIT
FRAGMENTATION THAT HAD PREVIOUSLY DEVELOPED AND TO ENCOURAGE THE
CREATION OF MORE COMPREHENSIVE BARGAINING UNITS IN THE INTEREST OF THE
ENTIRE PROGRAM." THE COUNCIL QUOTED FROM SECTION IV OF THE REPORT
ACCOMPANYING E.O. 11838 WHICH CONCLUDED: /7/
WE FURTHER FEEL THAT THE ASSISTANT SECRETARY CAN DO MUCH TO FOSTER
THIS POLICY IN CARRYING
OUT HIS FUNCTIONS OF DECIDING OTHER REPRESENTATION QUESTIONS
INCLUDING THE APPROPRIATENESS OF
NEWLY SOUGHT UNITS. ACCORDINGLY, IN ALL REPRESENTATION QUESTIONS,
EQUAL WEIGHT MUST BE GIVEN
TO EACH OF THE THREE CRITERIA IN SECTION 10(B) OF THE ORDER. BY
DOING SO, THE RESULT SHOULD
BE BROADER, MORE COMPREHENSIVE BARGAINING UNITS.
UPON RECONSIDERATION, THE ASSISTANT SECRETARY FOUND, BASED ON THE
ENTIRE RECORD, "CONSISTENT WITH THE EARLIER DETERMINATION HEREIN, THAT
THE UNITS SOUGHT ARE APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER THE ORDER." IN SO RULING, THE ASSISTANT SECRETARY
DETERMINED THAT THE EMPLOYEES IN EACH OF THE CLAIMED UNITS SHARE A CLEAR
AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM OTHER
EMPLOYEES OF DCASR CLEVELAND. FURTHER, NOTING THE COUNCIL'S PREVIOUS
DECISION IN THESE CASES (FLRC NO. 74A-41, SUPRA) AS WELL AS THE
COUNCIL'S TULSA AFS DECISION, /8/ THE ASSISTANT SECRETARY FOUND THAT THE
CLAIMED UNITS WOULD PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS, AND THAT AGENCY MANAGEMENT'S CONTENTIONS TO THE CONTRARY
WERE "AT BEST, CONJECTURAL AND SPECULATIVE AND . . . NOT SUPPORTED BY
THE RECORD HEREIN."
IN FINDING THAT THE UNITS SOUGHT WOULD PROMOTE EFFICIENCY OF AGENCY
OPERATIONS, THE ASSISTANT SECRETARY, CITING HIS DECISION IN DEFENSE
SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION SERVICES REGION, SAN
FRANCISCO, A/SLMR NO. 559 (SEPT. 16, 1975), REJECTED THE AGENCY'S
ARGUMENT THAT SUCH UNITS WOULD RESULT IN FRAGMENTATION OF THE REGION AND
INCREASED COSTS AND INCONVENIENCE BECAUSE THE ADMINISTRATION OF
PERSONNEL AND LABOR RELATIONS POLICIES WAS CENTRALIZED AT REGION
HEADQUARTERS. IN SO RULING, HE STATED THAT THE AGENCY'S ARGUMENT
"RELATED MORE TO THE APPROPRIATENESS OF THE BROADER UNIT, RATHER THAN TO
THE POTENTIAL ADVERSE IMPACT RESULTING FROM THE ESTABLISHMENT OF THE
CLAIMED UNITS UPON THE EFFICIENCY OF AGENCY OPERATIONS," AND NOTED
FURTHER THE ABSENCE OF ANY COUNTERVAILING EVIDENCE THAT THE
ALREADY-EXISTING LESS THAN REGIONWIDE UNITS IN THE CLEVELAND DCASR HAVE
FAILED TO PROMOTE THE EFFICIENCY OF THE AGENCY'S OPERATIONS. SIMILARLY,
IN FINDING THAT THE CLAIMED UNITS WOULD PROMOTE EFFECTIVE DEALINGS, THE
ASSISTANT SECRETARY AGAIN CITED THE ABSENCE OF COUNTERVAILING EVIDENCE
REGARDING ANY LACK OF EFFECTIVE DEALINGS EXPERIENCED IN THE OTHER, LESS
THAN REGIONWIDE UNITS ALREADY IN EXISTENCE IN THE CLEVELAND DCASR, AND
NOTED FURTHER THAT, SUBSEQUENT TO THE ASSISTANT SECRETARY'S INITIAL
DECISION HEREIN (A/SLMR NO. 372), THE CHIEF OF THE AKRON DCASO
NEGOTIATED A COMPLETE AGREEMENT WHICH WAS APPROVED BY THE REGIONAL
COMMANDER, AND THAT THE CHIEF OF THE COLUMBUS DCASO WAS IN THE PROCESS
OF NEGOTIATING A COMPLETE AGREEMENT.
IN CONCLUSION, THE ASSISTANT SECRETARY, AGAIN CITING AND RELYING UPON
HIS DECISION IN DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION, SAN FRANCISCO, A/SLMR NO. 559, SUPRA, STATED THAT, IN
HIS VIEW, THE FOREGOING DETERMINATION WAS NOT INCONSISTENT WITH THE
EXPRESSED POLICY OF THE REPORT ACCOMPANYING EXECUTIVE ORDER 11838:
WHEN SECTION 11(A) OF THE ORDER IS CONSIDERED IN CONJUNCTION WITH THE
PRINCIPLE SET FORTH
. . . 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 THESE MATTERS, 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.
ACCORDINGLY, THE ASSISTANT SECRETARY LEFT UNDISTURBED THE
CERTIFICATIONS PREVIOUSLY ISSUED TO AFGE LOCAL 3426 IN AKRON AND TO NFFE
LOCAL 73 IN COLUMBUS.
THE DEFENSE SUPPLY AGENCY APPEALED THIS DECISION TO THE COUNCIL.
UPON CONSIDERATION OF THE AGENCY'S PETITION FOR REVIEW, THE COUNCIL
DETERMINED THAT A MAJOR POLICY ISSUE IS PRESENTED BY THE SUPPLEMENTAL
DECISION OF THE ASSISTANT SECRETARY, NAMELY: WHETHER THE ASSISTANT
SECRETARY'S DECISION IS CONSISTENT WITH AND PROMOTES THE PURPOSES AND
POLICIES OF THE ORDER, ESPECIALLY THOSE REFLECTED IN SECTION 10(B).
NONE OF THE PARTIES FILED A BRIEF ON THE MERITS. PURSUANT TO SECTION
2411.16(B) OF THE COUNCIL'S RULES, THE ASSISTANT SECRETARY INTERVENED IN
THE CASE, BECOMING A PARTY TO THE PROCEEDINGS, AND FILED A BRIEF. THE
COUNCIL, PURSUANT TO SECTION 2411.52 OF ITS RULES, GRANTED THE AGENCY
AND UNIONS LEAVE TO FILE SUPPLEMENTAL ARGUMENTS IN RESPONSE TO THE BRIEF
OF THE ASSISTANT SECRETARY. THE AGENCY FILED SUPPLEMENTAL ARGUMENTS.
OPINION
AS PREVIOUSLY DESCRIBED, THE ASSISTANT SECRETARY FOUND IN HIS
SUPPLEMENTAL DECISION THAT SEPARATE UNITS OF 69 AND 65 NONPROFESSIONAL
EMPLOYEES AT TWO DCASO'S WITHIN THE CLEVELAND DCASR WERE APPROPRIATE FOR
THE PURPOSE EXCLUSIVE RECOGNITION, RELYING SUBSTANTIALLY UPON HIS
REASONING AND CONCLUSION IN DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT
ADMINISTRATION SERVICES REGION, SAN FRANCISCO, A/SLMR NO. 559. THE
MAJOR POLICY ISSUE RAISED HEREIN IS WHETHER THE INSTANT DECISION IS
CONSISTENT WITH AND PROMOTES THE PURPOSES AND POLICIES OF THE ORDER,
ESPECIALLY THOSE REFLECTED IN SECTION 10(B).
ON DECEMBER 30, 1976, THE COUNCIL ISSUED ITS CONSOLIDATED DECISION 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, FLRC
NO. 75A-14; DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION, SAN FRANCISCO, A/SLMR NO. 559, FLRC NO. 75A-128;
DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION SERVICES REGION
(DCASR), SAN FRANCISCO, DEFENSE CONTRACT ADMINISTRATION SERVICES
DISTRICT (DCASD), SEATTLE, WASHINGTON, A/SLMR NO. 564, FLRC NO. 76A-4
(DEC. 30, 1976). REPORT NO. 119, WHICH PRESENTED, IN A SIMILAR FACTUAL
SETTING, THE IDENTICAL MAJOR POLICY ISSUE INVOLVED IN THE INSTANT CASE.
IN ITS CONSOLIDATED DECISION, HEREIN REFERRED TO AS THE CONSOLIDATED
DCASR DECISION OR CASES, THE COUNCIL SET ASIDE AND REMANDED THE
DECISIONS OF THE ASSISTANT SECRETARY. THE COUNCIL CONCLUDED THAT THE
ASSISTANT SECRETARY'S DECISIONS THEREIN FINDING APPROPRIATE AND
DIRECTING AN ELECTION IN EACH OF THREE SEPARATE UNITS IN THE SAN
FRANCISCO DCASR WERE INCONSISTENT WITH THE PURPOSES OF THE ORDER AND,
FURTHER, THAT EQUAL APPLICATION OF THE THREE CRITERIA IN SECTION 10(B)
AND THE RESULTING CONSISTENCY WITH THE PURPOSES OF THE ORDER WOULD
DICTATE A FINDING THAT NONE OF THE UNITS SOUGHT CONSTITUTED A UNIT
APPROPRIATE FOR PURPOSES OF EXCLUSIVE RECOGNITION UNDER THE ORDER.
THE ASSISTANT SECRETARY, AS INTERVENOR IN THE INSTANT CASE, REQUESTS
THAT THE COUNCIL RECONSIDER ITS DECISION IN THE CONSOLIDATED DCASR
DECISION AND URGES THAT THE COUNCIL LET STAND THE TWO DISPUTED UNIT
CERTIFICATIONS PREVIOUSLY ISSUED IN THE CLEVELAND DCASR. THE COUNCIL
HAS CAREFULLY CONSIDERED THE ENTIRE RECORD IN THE CASE, INCLUDING THE
BRIEF OF THE ASSISTANT SECRETARY AND THE VIEWS OF THE AGENCY IN RESPONSE
THERETO. THE COUNCIL HEREBY REAFFIRMS THE PRINCIPLES ENUNCIATED IN THE
CONSOLIDATED DCASR DECISON AND, FOR THE REASONS FULLY EXPLICATED BY THE
COUNCIL IN THAT DECISION, WHICH ARE EQUALLY APPLICABLE HEREIN, FINDS
THAT THE ASSISTANT SECRETARY'S SUPPLEMENTAL DECISION IN THE INSTANT CASE
IS INCONSISTENT WITH AND FAILS TO PROMOTE THE PURPOSES AND POLICIES OF
THE ORDER, ESPECIALLY THOSE REFLECTED IN SECTION 10(B) AND, FURTHER,
THAT NEITHER OF THE UNITS SOUGHT BY THE UNIONS IS APPROPRIATE FOR
PURPOSES OF EXCLUSIVE RECOGNITION UNDER THE ORDER. /9/
THE COUNCIL, IN RESPONSE TO MATTERS DISCUSSED BY THE ASSISTANT
SECRETARY IN HIS BRIEF, WISHES TO AMPLIFY IN A NUMBER OF RESPECTS THE
POLICIES AND PRINCIPLES ENUNCIATED IN THE CONSOLIDATED DCASR DECISION
AND APPLIED IN THE PRESENT CASE:
1. RESPONSIBILITY OF THE ASSISTANT SECRETARY TO DEVELOP A
COMPLETE EVIDENTIARY RECORD.
IN TULSA AFS, THE COUNCIL STATED (AT 7-8):
THE APPROPRIATE UNIT DETERMINATION PROCESS IS NON-ADVERSARY IN
NATURE. IT IS DESIGNED TO
ENSURE THAT ANY UNIT FOUND APPROPRIATE WILL PROVIDE A CLEAR AND
IDENTIFIABLE COMMUNITY OF
INTEREST AMONG THE EMPLOYEES INVOLVED, AND WILL PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS. BEFORE MAKING A FINAL DECISION CONCERNING THE
APPROPRIATENESS OF A
PARTICULAR CASE, THEREFORE, THE ASSISTANT SECRETARY MUST DEVELOP AS
COMPLETE AN EVIDENTIARY
RECORD AS POSSIBLE REGARDING EACH OF THE THREE CRITERIA AND MUST
CAREFULLY CONSIDER AND
EVALUATE THAT EVIDENCE. THE INTEGRITY AND FAIRNESS OF THE PROCESS
UNDER THE ORDER DEMANDS NO
LESS.
WHERE THE ASSISTANT SECRETARY BELIEVES THAT THE EVIDENCE FURNISHED BY
THE PARTIES IS NOT
SUFFICIENT TO ENABLE HIM TO AFFIRMATIVELY DETERMINE THAT A PARTICULAR
UNIT WILL SATISFY THE
THREE APPROPRIATE UNIT CRITERIA OF SECTION 10(B), THE ASSISTANT
SECRETARY MUST ACTIVELY
SOLICIT SUCH EVIDENCE FROM THE PARTIES IN ORDER TO DEVELOP THE
REQUISITE RECORD. WHERE THE
PARTIES FAIL OR ARE UNABLE TO RESPOND TO THE ASSISTANT SECRETARY'S
SOLICITATION, THE ASSISTANT
SECRETARY WILL HAVE TO BASE HIS DECISION ON THE INFORMATION AVAILABLE
TO HIM, MAKING THE
BEST-INFORMED JUDGMENT HE CAN UNDER THE CIRCUMSTANCES, KEEPING IN
MIND, OF COURSE, THE
REQUIREMENT THAT ANY UNIT FOUND APPROPRIATE MUST MEET THE TESTS OF
SECTION 10(B) OF THE ORDER.
THUS, THE COUNCIL NOTED THAT PARTIES TO A REPRESENTATION PROCEEDING
ARE RESPONSIBLE FOR PROVIDING THE ASSISTANT SECRETARY WITH ALL
INFORMATION RELEVANT TO THE APPROPRIATE UNIT CRITERIA THAT IS WITHIN
THEIR KNOWLEDGE AND POSSESSION, BUT EMPHASIZED THAT THE ASSISTANT
SECRETARY MUST ACTIVELY SOLICIT SUCH EVIDENCE AS NECESSARY TO ENABLE HIM
TO MAKE A FULLY-INFORMED JUDGMENT AS TO WHETHER A PARTICULAR UNIT WILL
SATISFY EACH OF THE THREE 10(B) CRITERIA. IN THIS REGARD, THE COUNCIL
FURTHER STATED IN TULSA AFS (AT 10 N. 8):
(T)HERE IS A NEED FOR A SHARPER DEGREE OF DEFINITION OF THE CRITERIA
OF EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS TO FACILITATE BOTH THE
DEVELOPMENT AND PRESENTATION OF
EVIDENCE PERTAINING TO THOSE CRITERIA BY AGENCIES AND LABOR
ORGANIZATIONS, AND THE QUALITATIVE
APPRAISAL OF SUCH EVIDENCE BY THE ASSISTANT SECRETARY IN APPROPRIATE
UNIT DETERMINATIONS. AS
HE HAS DONE WITH THE COMMUNITY OF INTEREST CRITERION, THEREFORE, THE
ASSISTANT SECRETARY
SHOULD DEVELOP SUBSIDIARY FACTORS OR INDICATORS WHICH WILL SERVE AS
GUIDELINES IN DETERMINING
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. IN THIS WAY,
EACH OF THE POLICY GOALS
TO BE ACHIEVED IN UNIT DETERMINATIONS WILL HAVE AN EQUAL DEGREE OF
PRECISION AND, HOPEFULLY,
WILL RECEIVE THE NECESSARY AND DESIRABLE EQUALITY OF EMPHASIS IN
REPRESENTATION PROCEEDINGS.
THE ASSISTANT SECRETARY, IN FINDING APPROPRIATE ONE OF THE UNITS
SOUGHT IN THE CONSOLIDATED DCASR CASES, HAD PARTICULARLY NOTED:
. . . 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 WHERE LESS
THAN REGION-WIDE UNITS HAVE BEEN RECOGNIZED OR CERTIFIED AND WHERE
THERE CURRENTLY EXIST
NEGOTIATED AGREEMENTS . . .
IN ITS CONSOLIDATED DCASR DECISON, THE COUNCIL DEALT WITH THIS
STATEMENT BY RELYING ON THE REQUIREMENTS ARTICULATED IN TULSA AFS AND
FOUND (AT 22-23) THAT:
(A) REVIEW OF THE RECORD REVEALS THAT THE ASSISTANT SECRETARY FAILED
TO MAKE AN AFFIRMATIVE
EFFORT TO DEVELOP AS COMPLETE A RECORD AS POSSIBLE WITH REGARD TO THE
CRITERIA OF "EFFECTIVE
DEALINGS" AND "EFFICIENCY OF AGENCY OPERATIONS." WHILE THE TESTIMONY
AND ARGUMENTS ADVANCED
BY THE ACTIVITY AS TO WHY THE PROPOSED UNIT WOULD NOT PROMOTE
EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS MAY NOT HAVE PROVIDED THE ASSISTANT
SECRETARY WITH A
SUFFICIENT BASIS ON WHICH TO MAKE A DETERMINATION, AS WE HAVE
INDICATED, THE DEVELOPMENT OF
SUCH EVIDENCE DOES NOT STOP WITH THE PARTIES. IT IS THE
RESPONSIBILITY OF THE ASSISTANT
SECRETARY TO DEVELOP AS COMPLETE A RECORD AS POSSIBLE WITH REGARD TO
EACH OF THE THREE
CRITERIA, SOLICITING EVIDENCE FROM THE PARTIES AS NECESSARY; HE DID
NOT DO SO HERE.
(T)HE ASSISTANT SECRETARY MAY NOT RELY UPON "THE ABSENCE OF ANY
SPECIFIC COUNTERVAILING
EVIDENCE . . . AS TO A LACK OF EFFECTIVE DEALINGS AND EFFICIENCY OF
OPERATIONS" IN OTHER
EXISTING BARGAINING UNITS TO MAKE AN AFFIRMATIVE FINDING REGARDING
THESE CRITERIA IN A
PROPOSED UNIT. RATHER, AS WE HAVE PREVIOUSLY EMPHASIZED, IT IS THE
RESPONSIBILITY OF THE
ASSISTANT SECRETARY TO DEVELOP AS COMPLETE A RECORD AS POSSIBLE WITH
REGARD TO EACH OF THE
THREE CRITERIA, SOLICITING EVIDENCE FROM THE PARTIES AS NECESSARY;
TO GIVE FULL AND CAREFUL
CONSIDERATION TO ALL RELEVANT EVIDENCE IN THE RECORD; AND THEN TO
GROUND HIS DECISION UPON A
CAREFUL, THOROUGH ANALYSIS OF EVIDENTIARY CONSIDERATIONS OR FACTORS
WHICH PROVIDE A SHARP
DEGREE OF DEFINITION AND PRECISION TO EACH OF THE THREE CRITERIA.
WHERE THE ASSISTANT
SECRETARY FINDS A UNIT TO BE APPROPRIATE FOR PURPOSES OF EXCLUSIVE
RECOGNITION, HE MUST MAKE
AN AFFIRMATIVE DETERMINATION THAT A UNIT EQUALLY SATISFIES EACH OF
THE 10(B)
CRITERIA. RELIANCE UPON A LACK OF EVIDENCE FAILS TO SATISFY THE
REQUIREMENT IN THE ORDER THAT
THE ASSISTANT SECRETARY MAKE SUCH AN AFFIRMATIVE DETERMINATION. /10/
(FOOTNOTE OMITTED AND
FOOTNOTE ADDED.)
ACCORDINGLY, IN MAKING AN APPROPRIATE UNIT DETERMINATION, THE
ASSISTANT SECRETARY IS NOT REQUIRED TO DEVELOP EVIDENCE ON BEHALF OF
EITHER PARTY. RATHER, THE DECISIONS OF THE COUNCIL, INCLUDING THE
CONSOLIDATED DCASR DECISION, EMPHASIZE THE NONADVERSARY NATURE OF THE
ASSISTANT SECRETARY'S PROCEEDINGS TO DETERMINE THE APPROPRIATENESS OF
UNITS AND STRESS THE AFFIRMATIVE ROLE OF THE ASSISTANT SECRETARY TO
DEVELOP AS COMPLETE A RECORD AS POSSIBLE IN ORDER TO RENDER AND INFORMED
JUDGMENT WITH REGARD TO EACH OF THE THREE SECTION 10(B) CRITERIA. /11/
2. RESPONSIBILITY OF THE ASSISTANT SECRETARY TO GIVE EQUAL
WEIGHT TO EACH CRITERION OF SECTION 10(B).
THE COUNCIL HAS CLEARLY STATED THAT, IN MAKING AN APPROPRIATE UNIT
DETERMINATION, THE ASSISTANT SECRETARY MUST GIVE EQUAL WEIGHT TO EACH
CRITERION OF SECTION 10(B). /12/ THEREFORE, A UNIT, IN ORDER TO BE
APPROPRIATE UNDER THE ORDER, MUST CLEARLY, CONVINCINGLY AND EQUALLY
SATISFY EACH OF THE 10(B) CRITERIA; THAT IS, ONLY UNITS WHICH NOT ONLY
ENSURE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AMONG THE
EMPLOYEES CONCERNED BUT ALSO PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY
OF AGENCY OPERATIONS ARE APPROPRIATE UNDER THE ORDER. EXPRESSED ANOTHER
WAY: NO GREATER RELIANCE MAY BE PLACED ON ONE CRITERION, E.G.,
COMMUNITY OF INTEREST, THAN ANOTHER, E.G., EFFICIENCY OF AGENCY
OPERATIONS. FURTHER, WHERE A PROPOSED UNIT SATISFIES TWO OF THE
CRITERIA, E.G., COMMUNITY OF INTEREST AND EFFECTIVE DEALINGS, BUT DOES
NOT SATISFY THE THIRD CRITERION, NAMELY, EFFICIENCY OF AGENCY
OPERATIONS, THAT UNIT MAY NOT BE FOUND APPROPRIATE. THUS, "EQUAL
WEIGHT" DOES NOT MEAN THAT EVIDENCE GOING TO EACH CRITERION MUST BE
EQUAL IN AMOUNT AND QUALITY; IT DOES MEAN THAT NO ONE CRITERION OR TWO
CRITERIA MAY BE ACCORDED GREATER WEIGHT, I.E., IMPORTANCE, THAN THE
OTHER(S) IN THE APPROPRIATE UNIT DETERMINATION.
MOREOVER, THE REQUIREMENT THAT THE ASSISTANT SECRETARY GIVE EQUAL
WEIGHT TO EACH CRITERION IN SECTION 10(B) DOES NOT COMPEL THE ASSISTANT
SECRETARY, AS HE PUT IT, "TO SEARCH FOR THE MOST PERFECT CONCEIVABLE
BARGAINING UNIT." THE COUNCIL'S CONSOLIDATED DCASR DECISION DOES NOT
SUGGEST THAT THE ASSISTANT SECRETARY IS REQUIRED TO DO SO. IN THE
CONSOLIDATED DCASR DECISION, THE COUNCIL FOUND, AMONG OTHER THINGS, THAT
EQUAL APPLICATION OF THE THREE SECTION 10(B) CRITERIA WOULD DICTATE A
FINDING THAT THE UNITS SOUGHT WERE NOT APPROPRIATE FOR PURPOSES OF
EXCLUSIVE RECOGNITION UNDER THE ORDER. FURTHERMORE, THE COUNCIL STATED
THAT A REGIONWIDE UNIT WOULD MEET ALL OF THE SECTION 10(B) CRITERIA AND
WOULD ALSO BE CONSISTENT WITH THE ORDER'S POLICY OF PROMOTING A MORE
COMPREHENSIVE BARGAINING UNIT STRUCTURE. THE COUNCIL DID NOT HOLD THAT,
OF SEVERAL APPROPRIATE UNITS, THE REGIONWIDE ONE WOULD BE "MOST" OR
"MORE" APPROPRIATE. THE COUNCIL'S CONSOLIDATED DCASR DECISION REFLECTS
THE BASIC POLICY THAT AN APPROPRIATE UNIT MUST MEET THE THREE CRITERIA
OF SECTION 10(B) AND THAT, IN APPLYING THE THREE CRITERIA, DUE
CONSIDERATION MUST BE GIVEN TO THE PURPOSES OF THE ORDER, INCLUDING THE
DUAL OBJECTIVES OF PREVENTING FURTHER FRAGMENTATION OF BARGAINING UNITS
AS WELL AS REDUCING EXISTING FRAGMENTATION, THEREBY PROMOTING A MORE
COMPREHENSIVE BARGAINING UNIT STRUCTURE. CLEARLY, THE PROPER
APPLICATION OF THE THREE CRITERIA REQUIRES THE ASSISTANT SECRETARY TO
EXERCISE CONSIDERABLE JUDGMENT, BUT IT DOES NOT REQUIRE HIM TO FIND "THE
MOST PERFECT CONCEIVABLE BARGAINING UNIT."
3. RESPONSIBILITY OF THE ASSISTANT SECRETARY REGARDING THE
ORDER'S POLICY OF REDUCING FRAGMENTATION IN THE
BARGAINING UNIT STRUCTURE.
IN ITS CONSOLIDATED DCASR DECISION, THE COUNCIL SPECIFICALLY REJECTED
THE ASSISTANT SECRETARY'S INTERPRETATION OF THE ORDER TO THE EFFECT THAT
NEGOTIATIONS AT THE LOCAL LEVEL ARE TO BE ENCOURAGED TO THE MAXIMUM
EXTENT POSSIBLE. THE ASSISTANT SECRETARY HAD RELIED UPON LANGUAGE IN
THE PREAMBLE /13/ AND IN THE REVISED SECTION 11(A). /14/
IT IS BEYOND QUESTION THAT THE ORDER, AS EVIDENCED BY THIS PREAMBLE
LANGUAGE, ENCOURAGES THE PARTICIPATION OF EMPLOYEES IN THE FORMULATION
AND IMPLEMENTATION OF PERSONNEL POLICIES AND PRACTICES AFFECTING
CONDITIONS OF THEIR EMPLOYMENT; HOWEVER, THE ORDER PROVIDES FOR THIS
PARTICIPATION THROUGH EXCLUSIVE RECOGNITION IN AN "APPROPRIATE" UNIT
UNDER SECTION 10. MOREOVER, THE REPORT ACCOMPANYING E.O. 11838 CLEARLY
STATES THAT THE CHANGES IN SECTION 11(A) OF THE ORDER WERE INTENDED TO
"COMPLEMENT" THE RECOMMENDATIONS OF THE COUNCIL RELATING TO THE
CONSOLIDATION OF EXISTING UNITS WHICH WOULD THEREBY REDUCE UNIT
FRAGMENTATION. /15/
FURTHER IN THE ABOVE REGARD, IT IS IMPORTANT TO REMEMBER THAT THE
ORDER REFLECTS A DUAL POLICY: NOT ONLY TO REDUCE EXISTING FRAGMENTATION
THROUGH UNIT CONSOLIDATION BUT ALSO TO PREVENT FURTHER FRAGMENTATION
THROUGH NEW APPROPRIATE UNIT DETERMINATIONS, THEREBY PROMOTING A MORE
COMPREHENSIVE BARGAINING UNIT STRUCTURE. THE COUNCIL ACKNOWLEDGES THAT
THIS DUAL POLICY MAY HAVE THE EFFECT IN SOME SITUATIONS OF FORESTALLING
THE REPRESENTATION OF SOME EMPLOYEES; HOWEVER, THESE EMPLOYEES NEED NOT
BE DENIED THE OPPORTUNITY FOR REPRESENTATION ALTOGETHER. RATHER, AS IS
CUSTOMARY IN CASES SUCH AS HERE INVOLVED, REPRESENTATION CAN BE ACHIEVED
BY EXPANDING ORGANIZATIONAL EFFORTS TO INCLUDE THOSE EMPLOYEES WHO WOULD
CONSTITUTE AN APPROPRIATE UNIT. /16/ AS THE COUNCIL SAID IN THE
CONSOLIDATED DCASR DECISION (AT 20):
(W)HILE A UNIT AT A LOWER ORGANIZATIONAL LEVEL MAY PROVIDE A
TEMPORARY VEHICLE TO ADDRESS
CERTAIN LOCALIZED PROBLEMS, IN THE LONG RUN, UNITS BROADER IN SCOPE
WILL FACILITATE
CONSIDERATION AND RESOLUTION OF A GREATER RANGE OF CONCERNS COMMON TO
EMPLOYEES AND WILL
BETTER SERVE THE INTERESTS OF BOTH THE EMPLOYEES AND THE AGENCIES.
IT WAS TO ACHIEVE THIS END
THAT THE POLICIES OF THE ORDER WERE ADOPTED.
4. COUNCIL REVIEW OF ASSISTANT SECRETARY DECISIONS.
DECISIONS OF THE ASSISTANT SECRETARY ARE SUBJECT TO A LIMITED RIGHT
OF APPEAL TO THE COUNCIL. /17/ IN ACCORDANCE WITH ITS RULES, THE
COUNCIL REVIEWS ONLY THOSE ASSISTANT SECRETARY DECISIONS IN WHICH MAJOR
POLICY ISSUES ARE PRESENT OR WHERE IT APPEARS THAT THE DECISION WAS
ARBITRARY AND CAPRICIOUS. /18/ FURTHER, THE COUNCIL WILL SUSTAIN A
DECISION OF THE ASSISTANT SECRETARY ON REVIEW UNLESS IT IS ARBITRARY AND
CAPRICIOUS OR INCONSISTENT WITH THE PURPOSES OF THE ORDER. /19/ WHERE
THE COUNCIL FINDS THAT A DECISION OF THE ASSISTANT SECRETARY IS
INCONSISTENT WITH THE PURPOSES AND POLICIES OF THE ORDER, IT CUSTOMARILY
HAS SET ASIDE AND REMANDED THE DECISION. /20/ ONLY IN THE MOST
EXCEPTIONAL CIRCUMSTANCES WILL THE COUNCIL SUBSTITUTE ITS JUDGMENT FOR
THAT OF THE ASSISTANT SECRETARY IN APPLYING POLICY TO THE FACTS OF A
PARTICULAR CASE. THE CONSOLIDATED DCASR CASES PRESENTED SUCH
CIRCUMSTANCES. IN THOSE CASES, THE COUNCIL WAS OF THE OPINION THAT
EXTRAORDINARY MEASURES, BEYOND SETTING ASIDE AND REMANDING THE DECISIONS
OF THE ASSISTANT SECRETARY, WERE REQUIRED IN ORDER TO INSURE THE
EFFECTUATION OF THE ORDER'S UNIT STRUCTURE POLICY. THEREFORE, THE
COUNCIL, IN ADDITION TO SETTING ASIDE THE ASSISTANT SECRETARY'S
DECISIONS, DETERMINED THAT NONE OF THE UNITS SOUGHT WAS APPROPRIATE FOR
PURPOSES OF EXCLUSIVE RECOGNITION UNDER THE ORDER.
THE COUNCIL IS LIKEWISE OF THE OPINION THAT THE INSTANT CASE PRESENTS
EXCEPTIONAL CIRCUMSTANCES AND WARRANTS EXTRAORDINARY ACTION BY THE
COUNCIL-- BECAUSE OF ITS HISTORY OF HAVING ONCE BEEN REMANDED, BECAUSE
OF THE REASONING RELIED UPON BY THE ASSISTANT SECRETARY, AND BECAUSE OF
THE CLOSE FACTUAL SIMILARITY OF THIS CASE TO THE CONSOLIDATED DCASR
CASES. THEREFORE, AS CONCLUDED ABOVE AT PAGE 6, THE COUNCIL HERE NOT
ONLY HAS SET ASIDE THE ASSISTANT SECRETARY'S DECISION BUT ALSO HAS
DETERMINED THAT THE UNITS SOUGHT ARE NOT APPROPRIATE UNDER THE ORDER FOR
PURPOSES OF EXCLUSIVE RECOGNITION.
CONCLUSION
FOR THE REASONS SET FORTH ABOVE, AND PURSUANT TO SECTION 2411.18(B)
OF THE COUNCIL'S RULES OF PROCEDURE, WE SET ASIDE THE ASSISTANT
SECRETARY'S SUPPLEMENTAL DECISION AND REMAND THE CASE TO HIM FOR ACTION
CONSISTENT WITH OUR DECISION HEREIN. /21/
BY THE COUNCIL.
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
ISSUED: JULY 20, 1977
/1/ SUBSEQUENT TO THE FILING OF THIS APPEAL, THE NAME OF THE AGENCY
WAS CHANGED TO DEFENSE LOGISTICS AGENCY.
/2/ DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION SERVICES
REGION (DCASR), CLEVELAND, OHIO, DEFENSE CONTRACT ADMINISTRATION
SERVICES OFFICES (DCASO'S), COLUMBUS, OHIO, AND AKRON, OHIO, A/SLMR NO.
372 (MAR. 25, 1974).
/3/ UNITED FEDERATION OF COLLEGE TEACHERS, LOCAL 1460 AND U.S.
MERCHANT MARINE ACADEMY, 1 FLRC 210 (FLRC NO. 71A-15 (NOV. 20, 1972),
REPORT NO. 30).
/4/ SECTION 10(B) PROVIDES, IN PERTINENT PART, THAT:
A UNIT MAY BE ESTABLISHED ON A PLANT OR INSTALLATION, CRAFT,
FUNCTIONAL, OR OTHER BASIS
WHICH WILL ENSURE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
AMONG THE EMPLOYEES CONCERNED
AND WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS.
/5/ 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, 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 FOR WHICH A COMPELLING NEED EXISTS UNDER
CRITERIA ESTABLISHED BY THE
FEDERAL LABOR RELATIONS COUNCIL AND WHICH ARE ISSUED AT THE AGENCY
HEADQUARTERS LEVEL OR AT
THE LEVEL OF A PRIMARY NATIONAL SUBDIVISION; A NATIONAL OR OTHER
CONTROLLING AGREEMENT AT A
HIGHER LEVEL IN THE AGENCY; AND THIS ORDER.
/6/ LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975), AT 38.
/7/ ID. AT 37.
/8/ DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION,
SOUTHWEST REGION, TULSA AIRWAY FACILITIES SECTOR, A/SLMR NO. 364, FLRC
NO. 74A-28 (MAY 9, 1975), REPORT NO. 69.
/9/ IN SO CONCLUDING, THE COUNCIL MUST DISAGREE WITH THE ASSISTANT
SECRETARY'S RELIANCE IN HIS SUPPLEMENTAL DECISION UPON THE COURSE OF THE
PARTIES' NEGOTIATIONS SINCE HIS ORIGINAL DECISION AND DIRECTION OF
ELECTIONS IN A/SLMR NO. 372 AS A FACTOR TO SUPPORT HIS FINDING THAT THE
CLAIMED UNITS WILL PROMOTE EFFECTIVE DEALINGS. APART FROM OTHER
CONSIDERATIONS, IT IS CONTRARY TO THE PURPOSES OF THE ORDER, IN THE
COUNCIL'S OPINION, TO REQUIRE AGENCY MANAGEMENT TO MEET AND CONFER IN
GOOD FAITH WITH THE UNIONS CERTIFIED AS A RESULT OF THE ASSISTANT
SECRETARY'S DECISION AND DIRECTION OF ELECTIONS AND THEN TO USE THE
PRODUCT OF SUCH NEGOTIATIONS TO SUPPORT THE ORIGINAL APPROPRIATE UNIT
DETERMINATION, PARTICULARLY WHERE AGENCY MANAGEMENT'S ONLY RECOURSE
WOULD BE TO REFUSE TO MEET AND CONFER WITH THE UNIONS IN GOOD FAITH AND
THEREBY RISK AN UNFAIR LABOR PRACTICE FINDING. SEE HEADQUARTERS, UNITED
STATES ARMY AVIATION SYSTEMS COMMAND, A/SLMR NO. 168, 1 FLRC 473 (FLRC
NO. 72A-30 (JULY 25, 1973), REPORT NO. 42).
/10/ THE COUNCIL'S DECISION IN DEPARTMENT OF COMMERCE, NATIONAL
OCEANIC AND ATMOSPHERIC ADMINISTRATION, NATIONAL WEATHER SERVICE,
CENTRAL REGION AND WEATHER SERVICE OFFICES (BISMARCK, NORTH DAKOTA;
FARGO, NORTH DAKOTA; ST. CLOUD, MINNESOTA; AND INTERNATIONAL FALLS,
MINNESOTA), A/SLMR NO. 331, FLRC NO. 74A-16 (JULY 21, 1975), REPORT NO.
77 (HEREINAFTER REFERRED TO AS NATIONAL WEATHER SERVICE) IS NOT TO THE
CONTRARY. IN NATIONAL WEATHER SERVICE, THE ASSISTANT SECRETARY FOUND
FOUR SEPARATE UNITS WITHIN A SINGLE REGION OF THE AGENCY APPROPRIATE,
RELYING IN PART ON A LACK OF ANY SPECIFIC COUNTERVAILING EVIDENCE AS TO
WHETHER THE PROPOSED UNIT WOULD PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. UPON REVIEW, THE COUNCIL APPLIED THE
PRINCIPLES ENUNCIATED IN TULSA AFS AND DETERMINED, IN CONTRAST WITH ITS
DECISION IN THE CONSOLIDATED DCASR CASES, THAT THE ASSISTANT SECRETARY'S
DECISION MET THE ESSENTIAL REQUIREMENTS OF SECTION 10(B). THE
DIFFERENCE IN RESULT IS BASED ON AT LEAST ONE SIGNIFICANT FACTUAL
DISTINCTION: UNLIKE IN THE CONSOLIDATED DCASR CASES, THE UNION
REPRESENTATIVE IN NATIONAL WEATHER SERVICE, AS NOTED BY THE COUNCIL,
TESTIFIED THAT THE SEPARATE UNITS WOULD, IF THE UNION WERE CERTIFIED,
FALL UNDER AN EXISTING MULTI-UNIT AGREEMENT. THUS, VIEWING THE SMALL
UNITS AS A PART OF A MULTI-UNIT BARGAINING STRUCTURE, THE COUNCIL WAS OF
THE OPINION IN NATIONAL WEATHER SERVICE THAT THE DECISION OF THE
ASSISTANT SECRETARY DID NOT CONFLICT WITH THE REQUIREMENTS OF SECTION
10(B) OF THE ORDER. (SEE NATIONAL WEATHER SERVICE N. 7 AND ACCOMPANYING
TEXT.)
/11/ IT SHOULD BE NOTED THAT IN THE CONSOLIDATED DCASR DECISION, THE
COUNCIL DID NOT REACH THE QUESTION AS TO RESPONSIBILITY OF THE ASSISTANT
SECRETARY IN THE EVENT THAT, AFTER ACTIVE SOLICITATION BY HIM, THERE IS
STILL INSUFFICIENT EVIDENCE UPON WHICH HE MIGHT MAKE AN AFFIRMATIVE
DETERMINATION AS TO EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS. IN THE CONSOLIDATED DCASR DECISION THE COUNCIL FOUND THAT
THE ASSISTANT SECRETARY HAD FAILED TO ACTIVELY SOLICIT SUCH EVIDENCE.
MOREOVER, A SITUATION IN WHICH THE ASSISTANT SECRETARY'S ACTIVE
SOLICITATION OF EVIDENCE WOULD FAIL TO PRODUCE SUFFICIENT RESULTS SHOULD
BE RARE INDEED, SINCE THE COUNCIL'S CONSOLIDATED DCASR DECISION PROVIDED
THE ASSISTANT SECRETARY WITH GUIDANCE WITH REGARD TO SUBSIDIARY FACTORS
OR INDICATORS OF EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
SEE CONSOLIDATED DCASR DECISION AT 13.
/12/ E.G., LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE (1975),
AT 29; TULSA AFS AT 6.
/13/ "(T)HE 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 . . . ."
/14/ SEE NOTE 5 SUPRA AND ACCOMPANYING TEXT.
/15/ SEE NOTE 6 SUPRA AND ACCOMPANYING TEXT.
/16/ IT SHOULD BE NOTED IN THIS REGARD THAT SECTION 10(B) PROVIDES IN
PERTINENT PART: "A UNIT SHALL NOT BE ESTABLISHED SOLELY ON THE BASIS OF
THE EXTENT TO WHICH EMPLOYEES IN THE PROPOSED UNIT HAVE ORGANIZED . . .
."
/17/ THE STUDY COMMITTEE REPORT AND RECOMMENDATIONS, AUGUST 1969,
WHICH LED TO THE ISSUANCE OF EXECUTIVE ORDER 11491, STATED:
THE ASSISTANT SECRETARY SHOULD BE AUTHORIZED TO ISSUE DECISIONS TO
AGENCIES AND LABOR
ORGANIZATIONS IN ALL CASES, SUBJECT TO A LIMITED RIGHT OF APPEAL ON
MAJOR POLICY ISSUES BY
EITHER PARTY TO THE FEDERAL LABOR RELATIONS COUNCIL . . .
LABOR-MANAGEMENT RELATIONS IN THE
FEDERAL SERVICE (1975), AT 69.
/18/ 5 CFR 2411.12.
/19/ 5 CFR 2411.18(A).
/20/ SEE E.G., TULSA AFS; DEFENSE SUPPLY AGENCY, DEFENSE PROPERTY
DISPOSAL OFFICE, ABERDEEN PROVING GROUND, ABERDEEN, MARYLAND, A/SLMR NO.
360, FLRC NO. 74A-22 (DEC. 9, 1975), REPORT NO. 88.
/21/ IN THIS REGARD, WE HAVE BEEN ADMINISTRATIVELY ADVISED THAT THE
ASSISTANT SECRETARY CURRENTLY HAS UNDER CONSIDERATION A PETITION FOR
CONSOLIDATION OF UNITS REPRESENTED BY AFGE WITHIN THE DEFENSE LOGISTICS
AGENCY, INCLUDING THE AKRON DCASO UNIT INVOLVED HEREIN. SHOULD THE
ASSISTANT SECRETARY DETERMINE THAT A CONSOLIDATED UNIT IS APPROPRIATE,
IT WOULD NOT BE INCONSISTENT WITH THIS DECISION TO INCLUDE THIS UNIT
INVOLVED HEREIN IN SUCH A CONSOLIDATED UNIT BY REASON OF THE SPECIAL
CIRCUMSTANCES HERE INVOLVED, INCLUDING THE FACT THAT THE EMPLOYEES IN
THIS UNIT HAVE PREVIOUSLY INDICATED THROUGH THE ELECTION PROCESS THAT
THEY WISH AFGE TO SERVE AS THEIR EXCLUSIVE REPRESENTATIVE AND THE LENGTH
OF TIME WHICH HAS ELAPSED SINCE THE ELECTION. OF COURSE, IF A
CONSOLIDATION ELECTION SHOULD BE HELD TO DETERMINE WHETHER THE EMPLOYEES
IN THE PROPOSED CONSOLIDATED UNIT WISH TO BE REPRESENTED IN THAT UNIT,
THE EMPLOYEES IN THE AKRON DCASO UNIT INVOLVED HEREIN WOULD HAVE THE
OPTIONS ONLY OF BEING REPRESENTED IN THE CONSOLIDATED UNIT OR BEING
UNREPRESENTED-- UNLESS, OF COURSE, AFGE FILES A SEPARATE PETITION
SEEKING TO REPRESENT THE EMPLOYEES INVOLVED HEREIN IN A UNIT DETERMINED
TO BE APPROPRIATE. SEE CONSOLIDATED DCASR DECISION AT 23.
7 A/SLMR 883; P. 674; CASE NO. 72-6081(CA); AUGUST 26, 1977.
AUGUST 26, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
VETERANS ADMINISTRATION,
CANTEEN SERVICE, VA HOSPITAL,
PHOENIX, ARIZONA
A/SLMR NO. 883
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY LOCAL
2382, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, (AFGE)
ALLEGING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (2) OF THE
ORDER BY DISCRIMINATION AND HARASSMENT OF MARIE WHITECOTTON BECAUSE OF
HER UNION ACTIVITIES AND PARTICIPATION IN THE BARGAINING UNIT AS STEWARD
AND WOMEN'S COORDINATOR FOR THE AFGE.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT HAD NOT
VIOLATED SECTION 19(A)(1) AND (2) OF THE ORDER. IN THIS REGARD, THE
ADMINISTRATIVE LAW JUDGE FOUND, BASED ON THE RECORD AND PURSUANT TO HIS
CREDIBILITY RESOLUTIONS, THAT THERE WAS NO EVIDENCE OF ANTI-UNION ANIMUS
BY MANAGEMENT AND THAT, ALTHOUGH WHITECOTTON'S DISCHARGE DID NOT APPEAR
TO BE FREE FROM UNFAIRNESS, HER UNION ACTIVITIES DID NOT APPEAR TO HAVE
HAD A PART IN THE RESPONDENT'S ACTIONS TOWARD HER.
THE ASSISTANT SECRETARY, CITING HIS POLICY OF NOT DISTURBING
CREDIBILITY RESOLUTIONS OF ADMINISTRATION LAW JUDGES UNLESS THE
PREPONDERANCE OF ALL THE RELEVANT EVIDENCE ESTABLISHED THAT SUCH
RESOLUTION CLEARLY ARE INCORRECT, ADOPTED THE FINDINGS, CONCLUSIONS AND
RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE, AND ORDERED THAT THE
COMPLAINT BE DISMISSED.
VETERANS ADMINISTRATION,
CANTEEN SERVICE, VA HOSPITAL,
PHOENIX, ARIZONA
RESPONDENT
CASE NO. 72-6081(CA)
AND
LOCAL 2382, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
COMPLAINANT
DECISION AND ORDER
ON APRIL 4, 1977, 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 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
EXCEPTIONS AND SUPPORTING BRIEF FILED BY THE COMPLAINANT, I HEREBY ADOPT
THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, /1/ CONCLUSIONS AND
RECOMMENDATION.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 72-6081(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
AUGUST 26, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ THE RESPONDENT EXCEPTED TO CERTAIN CREDIBILITY FINDINGS MADE BY
THE ADMINISTRATIVE LAW JUDGE. IN NAVY EXCHANGE, U.S. NAVAL AIR STATION,
QUONSET POINT, RHODE ISLAND, A/SLMR NO. 180, THE ASSISTANT SECRETARY
HELD THAT AS A MATTER OF POLICY HE WOULD NOT OVERRULE AN ADMINISTRATIVE
LAW JUDGE'S RESOLUTION WITH RESPECT TO CREDIBILITY UNLESS THE
PREPONDERANCE OF ALL THE RELEVANT EVIDENCE ESTABLISHED THAT SUCH
RESOLUTION CLEARLY WAS INCORRECT. BASED ON A REVIEW OF THE RECORD IN
THIS CASE, I FIND NO BASIS FOR REVERSING THE ADMINISTRATIVE LAW JUDGE'S
CREDIBILITY FINDINGS.
U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
SUITE 700-1111 20TH STREET, N.W.
WASHINGTON, D.C. 20036
IN THE MATTER OF
VETERANS ADMINISTRATION
CANTEEN SERVICE, VA HOSPITAL,
PHOENIX, ARIZONA
RESPONDENT
CASE NO. 72-6081
AND
LOCAL 2382, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
COMPLAINANT
STANLEY LUBIN, ESQ.
MCKENDREE AND LUBIN
3443 N. CENTRAL AVE., SUITE 1210
PHOENIX, ARIZONA 85012
RICHARD WEBSTER
INTERNATIONAL REPRESENTATIVE, AFGE
P.O. BOX 14385
PHOENIX, ARIZONA 85063
FOR THE COMPLAINANT
DANIEL T. MCCARTHY, ESQ.
VETERANS ADMINISTRATION
OFFICE OF THE GENERAL COUNSEL
810 VERMONT AVENUE, N.W.
WASHINGTON, D.C. 20420
EDGAR M. DELANEY, ESQ.
VETERANS ADMINISTRATION REGIONAL OFFICE
OFFICE OF THE DISTRICT COUNSEL
3225 N. CENTRAL AVENUE
PHOENIX, ARIZONA 85025
FOR THE RESPONDENT
BEFORE: MILTON KRAMER
ADMINISTRATION LAW JUDGE
RECOMMENDED DECISION AND ORDER
PRELIMINARY STATEMENT
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491 AS AMENDED. IT WAS
INITIATED BY A COMPLAINT DATED MAY 5, 1976 AND FILED MAY 10, 1976. THE
COMPLAINT ALLEGED THAT THE RESPONDENT VIOLATED SECTIONS 19(A)(1) AND (2)
OF THE EXECUTIVE ORDER BY DISCRIMINATION AND HARASSMENT OF MARIE
WHITECOTTON "BECAUSE OF HER UNION ACTIVITIES AND PARTICIPATION IN THE
BARGAINING UNIT AS STEWARD AND WOMEN'S COORDINATOR FOR AFGE LOCAL 2382--
BUT NOT LIMITED THERETO." ON JUNE 2, 1975 THE RESPONDENT RESPONDED TO
THE COMPLAINT. IT DENIED ANY VIOLATIONS, MADE A NUMBER OF AFFIRMATIVE
ALLEGATIONS, AND ASSERTED THAT THE COMPLAINT SHOULD BE DISMISSED FOR
LACK OF SUFFICIENCY.
ON SEPTEMBER 22, 1976 THE REGIONAL ADMINISTRATOR ISSUED A NOTICE OF
HEARING TO BE HELD NOVEMBER 18, 1976 IN PHOENIX, ARIZONA. NO ACTION WAS
TAKEN ON THE MOTION TO DISMISS. HEARINGS WERE HELD IN PHOENIX ON
NOVEMBER 18 AND 19, 1976. BOTH PARTIES WERE REPRESENTED BY COUNSEL WHO
EXAMINED AND CROSS-EXAMINED WITNESSES AND INTRODUCED EXHIBITS. BOTH
PARTIES MADE CLOSING ARGUMENTS AND FILED TIMELY BRIEFS.
PRELIMINARY MATTER
ACCOMPANYING THE REGIONAL ADMINISTRATOR'S NOTICE OF HEARING AS HIS
"SCOPE LETTER", SETTING FORTH TO THE PARTIES HIS PERSONAL ADVICE AND
SUGGESTIONS ON THE ISSUES TO WHICH HE SUGGESTED THE PARTIES SHOULD
ADDUCE EVIDENCE. THE "SCOPE LETTER" IN THIS CASE IS NOT IN THE RECORD
BUT THE TYPICAL SUCH LETTER, PROBABLY ALL SUCH LETTERS, CONCLUDE WITH
THE STATEMENT THAT HIS ADVICE WAS NOT MEANT TO BE ALL INCLUSIVE OF THE
EVIDENCE THAT MIGHT BE INTRODUCED AND THAT THE PARTIES COULD DEVELOP
OTHER RELEVANT EVIDENCE.
ON SEPTEMBER 29, 1976 THE RESPONDENT WROTE TO THE REGIONAL
ADMINISTRATOR. IT STATED THAT WHILE IT UNDERSTOOD THE SCOPE LETTER WAS
NOT DETERMINATIVE OF WHAT THE ISSUES WERE, IT WAS DISTURBED BY THE
REGIONAL ADMINISTRATOR INCLUDING TWO ISSUES IN THE SCOPE LETTER BECAUSE
THEY WERE NOT RAISED BY THE COMPLAINT, AND TO PREPARE TO DEFEND ON THOSE
ISSUES WOULD GENERATE ADDITIONAL COSTS IN TIME AND MONEY. IT THEREFORE
MOVED THAT THE REGIONAL ADMINISTRATOR RECONSIDER HIS LETTER AND DELETE
HIS REFERENCE TO THE TWO ISSUES MENTIONED IN HIS LETTER THAT WERE NOT
WITHIN THE AMBIT OF THE COMPLAINT.
ON OCTOBER 15, 1976 THE REGIONAL ADMINISTRATOR REFERRED THAT MOTION
TO THE ADMINISTRATIVE LAW JUDGE. /1/
AT THE HEARING THE RESPONDENT AGAIN URGED ITS MOTION. I DENIED THE
MOTION ON THE GROUND THAT THE REGIONAL ADMINISTRATOR'S SCOPE LETTER SET
FORTH HIS PERSONAL VIEWS AND I COULD NOT BY MY FIAT DECLARE THAT THE
REGIONAL ADMINISTRATOR'S VIEWS WERE CHANGED. /2/
FACTS /3/
THE COMPLAINANT, LOCAL 2382, HAS BEEN SINCE 1964 THE CERTIFIED
EXCLUSIVE REPRESENTATIVE OF TWO UNITS OF THE V.A. HOSPITAL IN PHOENIX.
ONE OF THE UNITS CONSISTS OF THE PROFESSIONAL EMPLOYEES OF THAT HOSPITAL
AND THE OTHER CONSISTS OF THE NON-PROFESSIONAL EMPLOYEES; BOTH UNITS
HAVE THE USUAL EXCLUSIONS. THE CANTEEN SERVICE IS A FACILITY OF THE
HOSPITAL. THERE ARE ABOUT 500 EMPLOYEES IN THE NON-PROFESSIONAL UNIT.
ABOUT 14 OF THEM ARE EMPLOYED IN THE FACILITY.
ON SEPTEMBER 14, 1975 MARIE WHITECOTTON BEGAN EMPLOYMENT AS A
PROBATIONARY EMPLOYEE AS A SALES CLERK IN THE CANTEEN SERVICE, AND
REMAINED A PROBATIONARY EMPLOYEE THROUGHOUT HER EMPLOYMENT TO APRIL 9,
1976. HER PRINCIPAL DUTY WAS TO OPERATE A CASH REGISTER BUT SHE ALSO
HAD OTHER DUTIES. /4/ THERE WERE TWO CASH REGISTERS IN THE CANTEEN, ONE
MECHANICAL AND THE OTHER MANUAL. THE MANUAL REGISTER DID NOT ADD THE
PRICES; THE DRAWER OPENED WHEN A SINGLE ITEM WAS REGISTERED AND THE
HIGHEST PRICE IT COULD REGISTER WAS $5.99; IF MORE THAN ONE ITEM WAS
PURCHASED THROUGH THAT COUNTER THE VARIOUS PRICES WERE ADDED WITH PENCIL
AND PAPER AND ONLY THE TOTAL REGISTERED. MRS. WHITECOTTON PREFERRED
WORKING ON THE MANUAL REGISTER EVEN THOUGH THE CASH DRAWER FREQUENTLY
STUCK AND THE REGISTER SOMETIMES HAD TO BE BANGED FOR THE DRAWER TO OPEN
AND THERE WAS SOMETIMES DIFFICULTY IN CLOSING THE DRAWER. BECAUSE SHE
PREFERRED WORKING ON IT, SHE WAS USUALLY ASSIGNED TO THAT REGISTER.
MRS. WHITECOTTON NEVER COMPLAINED THAT THE REGISTER MALFUNCTIONED
ALTHOUGH SHE WAS SUPPOSED TO REPORT ANY DEFECTIVE EQUIPMENT.
AFTER WORKING IN THE CANTEEN A WHILE WHITECOTTON ASKED CAROL
SCHIEFELBEIN, A CLERK IN THE OFFICE OF THE CANTEEN OFFICER, BY TELEPHONE
FROM HER HOME, ABOUT THE UNION AND SCHIEFELBEIN ADVISED HER TO STAY AWAY
FROM IT BECAUSE IT WAS TROUBLE. NEVERTHELESS, IN NOVEMBER 1975,
WHITECOTTON BECAME A MEMBER OF THE COMPLAINANT. LATER, ON DECEMBER 10,
1975, SCHIEFELBEIN WAS PROMOTED TO THE POSITION OF ADMINISTRATIVE
ASSISTANT TO THE CANTEEN OFFICER, A SUPERVISORY POSITION. IN DECEMBER
1975 WHITECOTTON BECAME THE COMPLAINANT'S WOMEN'S EDUCATIONAL DIRECTOR.
HER ACTIVITIES AS SUCH WERE ENTIRELY INTRA-UNION AND DID NOT INVOLVE ANY
CONTACTS WITH THE RESPONDENT.
ON DECEMBER 18, 1975 WHITECOTTON ATTENDED A ONE-DAY CONFERENCE OF
UNION WOMEN'S EDUCATIONAL DIRECTORS IN SCOTTSDALE, ARIZONA, A SUBURB OF
PHOENIX. ON HER RETURN SHE PLANNED TO ATTEND A SIMILAR CONFERENCE
SCHEDULED TO BE HELD FEBRUARY 13-15, 1976 IN TUCSON AND ASKED FOR ANNUAL
LEAVE FOR THAT PERIOD. SHE WAS TOLD SHE COULD HAVE SUCH LEAVE IF
NOTHING INTERVENED TO PREVENT IT. (SHE DID NOT ATTEND THAT CONFERENCE
BECAUSE OF A DISABLING INJURY SUSTAINED IN JANUARY 1976.)
LATE IN DECEMBER, 1975 WHITECOTTON WAS MADE THE UNION STEWARD FOR THE
CANTEEN SERVICE. SHE DID NOT IN THAT CAPACITY HAVE ANY DEALINGS WITH
THE RESPONDENT; NOTHING AROSE FROM THEN UNTIL HER TERMINATION THAT
CALLED FOR HER TO TAKE UP ANYTHING WITH MANAGEMENT NOR DOES THE RECORD
INDICATE SHE DID ANYTHING ELSE IN THAT CAPACITY. ALTHOUGH THE
COLLECTIVE AGREEMENT OF THE PARTIES CALLED FOR THE COMPLAINANT FORMALLY
TO NOTIFY THE RESPONDENT OF THE APPOINTMENT OF A STEWARD WITHIN THREE
DAYS OF THE APPOINTMENT, THE COMPLAINANT DID NOT GIVE SUCH NOTIFICATION
WITH RESPECT TO WHITECOTTON UNTIL APRIL 5, 1976, MORE THAN THREE MONTHS
LATER, AFTER SHE HAD BEEN GIVEN NOTICE THAT HER EMPLOYMENT WAS
TERMINATED EFFECTIVE APRIL 9, 1976. IN FEBRUARY, 1976 THE PRESIDENT OF
THE COMPLAINANT TOLD AN EMPLOYMENT-RELATIONS SPECIALIST IN THE PERSONNEL
OFFICE THAT WHITECOTTON HAD BECOME A STEWARD. THERE IS NO EVIDENCE, AND
I DO NOT FIND, THAT SUCH INFORMATION WAS COMMUNICATED BY THE SPECIALIST
TO THE PERSONNEL OFFICER OR TO THE CANTEEN OFFICER OR TO ANYONE ELSE.
MICHAEL LEMEIRE WAS THE RESPONDENT'S CANTEEN OFFICER FROM JUNE, 1974,
TO JULY, 1976 WHEN HE WAS TRANSFERRED TO A SIMILAR POSITION IN THE LOS
ANGELES V.A. HOSPITAL. HE WAS ABSENT ON EXTENDED SICK LEAVE FROM
FEBRUARY 1, 1975 TO ABOUT SEPTEMBER 9, 1975. DURING THAT PERIOD HE WAS
A PATIENT IN THE HOSPITAL AND MAINTAINED SOME INTERMITTENT CONTACT WITH
THE CANTEEN SERVICE. ON HIS RETURN HE EMPLOYED WHITECOTTON AS A SALES
CLERK. A COUPLE OF DAYS AFTER WHITECOTTON BEGAN HER EMPLOYMENT ON
SEPTEMBER 14, 1975, LE MEIRE CALLED A MEETING OF ALL EMPLOYEES IN THE
SERVICE SO THAT HE COULD MEET THE NEW EMPLOYEES AND TRY TO EXPLAIN HOW
THE OPERATION WAS RUN. WHITECOTTON TESTIFIED THAT AT THAT MEETING
LEMEIRE SUGGESTED THAT IF ANY EMPLOYEE HAD A LABOR RELATIONS PROBLEM HE
WOULD APPRECIATE IT IF THE EMPLOYEE CAME TO HIM BEFORE GOING TO "THE
LITTLE RED BUILDING" WHICH SUGGESTION, WHITECOTTON UNDERSTOOD TO MEAN,
BEFORE GOING TO THE UNION WITH IT. THE PRESIDENT OF LOCAL 2382, BASIL
REYNOLDS, WORKED IN RESEARCH IN A ONE-STORY RED BRICK BUILDING; THE
HOSPITAL BUILDING IS WHITE. LEMEIRE DENIED HAVING MADE SUCH STATEMENT.
NONE OF THE OTHER WITNESSES, REGARDLESS OF WHETHER THEY TESTIFIED ON
BEHALF OF THE COMPLAINANT OR THE RESPONDENT, HAD EVER HEARD, PRIOR TO
THE HEARING IN THIS CASE, THE EXPRESSION "THE LITTLE RED BUILDING" AS A
REFERENCE TO THE UNION PRESIDENT OR THE PLACE HE WORKED. I DO NOT FIND
THAT LEMEIRE MADE THAT STATEMENT.
WHEN WHITECOTTON BEGAN HER EMPLOYMENT SHE FIRST RECEIVED ON-THE-JOB
TRAINING IN OPERATION OF THE CASH REGISTERS, WITH AN EXPERIENCED
EMPLOYEE RUNNING THE REGISTER WITH WHITECOTTON OBSERVING AND THEN
WHITECOTTON PERFORMING THE SALES CLERK'S DUTIES WITH THE EXPERIENCED
EMPLOYEE OBSERVING. THIS WAS DONE FOR SEVERAL DAYS A FEW HOURS EACH
DAY. ON OCTOBER 2, 1975 A FORMAL TRAINING SESSION WAS HELD ON THE
FUNCTIONS AND DUTIES OF A SALES CLERK, AND TRAINING SESSIONS WERE HELD
THEREAFTER FROM TIME TO TIME, GENERALLY WEEKLY.
THE ACCEPTED, TOLERABLE RANGE OF INACCURACY IN OPERATING THE CASH
REGISTER WAS TO HAVE A DISCREPANCY IN THE AMOUNT RUNG ON A REGISTER AND
THE CASH RECEIVED OF $3.00 PER WEEK, EITHER UNDER OR OVER. THE
PROCEDURE FOR DETERMINING ERRORS IN CASH-REGISTER OPERATION, AND FOR
ATTRIBUTING DISCREPANCIES TO A PARTICULAR EMPLOYEE, WAS SUBSTANTIALLY
LESS THAN NECESSARY TO ASSURE THAT BLAME FOR DISCREPANCIES WAS PROPERLY
PLACED. FOR EXAMPLE, THE OPERATION OF A REGISTER MIGHT CHANGE HANDS
DURING THE DAY, AS ON LUNCH BREAKS AND OTHER BREAKS, BUT NO CHECK WAS
MADE AT SUCH TIMES AND THE EMPLOYEE PRIMARILY RESPONSIBLE FOR OPERATION
DURING A PARTICULAR PERIOD WAS CONSIDERED SOLELY RESPONSIBLE FOR
DISCREPANCIES DURING THAT PERIOD. THUS AN EMPLOYEE MIGHT HAVE OPERATED
A REGISTER ONLY 70% OR 80% OF THE OF THE TIME DURING A PERIOD YET WAS
CONSIDERED RESPONSIBLE FOR ALL THE DISCREPANCY DURING THAT PERIOD.
ALSO, THE METHOD OF CHECKING ON THE ACCURACY OF THE CHECKER WAS NOT
ALWAYS RELIABLE. DURING LEMEIRE'S LONG ABSENCE ON SICK LEAVE THE
PERSONNEL DEPARTMENT HAD MADE A STUDY OF THE OPERATION OF THE CANTEEN
BECAUSE OF COMPLAINTS BY EMPLOYEES AND THE UNION AND HAD FOUND THAT
IMPROVEMENT SHOULD BE MADE IN INDIVIDUAL ACCOUNTABILITY, BUT ON
LEMEIRE'S RETURN HE MADE NO CHANGE IN PROCEDURE. HE SAW NO NEED FOR
CHANGE.
ALMOST FROM THE BEGINNING OF WHITECOTTON'S EMPLOYMENT LEMEIRE,
APPLYING THE METHOD OF DETERMINING ACCURACY AND RELIABILITY DESCRIBED
ABOVE, WAS DISSATISFIED WITH WHITECOTTON'S PERFORMANCE. ON OCTOBER 16,
1975 HE FOUND HER TO HAVE BEEN IN ERROR BY $11.82, FAR BEYOND TOLERABLE
LIMITS, AND COUNSELED HER ON CASH-REGISTER OPERATION. ON DECEMBER 17 HE
FOUND A SHORTAGE OF $19.10. THERE WERE OTHER DISCREPANCIES OF MORE THAN
$3.00 IN A WEEK, EITHER OVER OR UNDER THE CORRECT AMOUNTS.
IN NOVEMBER 1975 WHITECOTTON WAS INJURED ON THE JOB BUT MANAGED TO
KEEP WORKING WITH THE HELP OF MEDICATION. IN JANUARY 1976 SHE WAS AGAIN
INJURED BY STRAINING HER BACK WHILE PERFORMING NON-REGISTER DUTIES AND
WAS DISABLED AND WENT ON LEAVE.
IN FEBRUARY 1976 WHITECOTTON RETURNED BUT WORKED ONLY FOUR AND A HALF
HOURS AND WENT BACK ON SICK LEAVE. SINCE HER JANUARY DISABILITY SHE HAD
CONTRACTED A BLADDER INFECTION AND HAD NEED TO GO TO THE RESTROOM MORE
OFTEN THAN WAS NORMALLY NECESSARY. SHE TOLD SCHIEFELBEIN HER PROBLEM.
SHE TESTIFIED THAT SCHIEFELBEIN TOLD HER SHE COULD GO TO THE RESTROOM
ONLY DURING HER TWO COFFEE BREAKS AND HER LUNCH BREAK. I FIND THAT
WHITECOTTON BELIEVED THAT THAT WAS SCHIEFELBEIN'S INSTRUCTION BUT THAT
SHE MISUNDERSTOOD SCHIEFELBEIN. SCHIEFELBEIN DENIED HAVING GIVEN SUCH
INSTRUCTIONS. THERE HAD BEEN A PROBLEM OF OPERATORS OF CASH REGISTERS
LEAVING THE REGISTER UNATTENDED WITHOUT TELLING ANYONE WHERE THEY WERE
GOING. SCHIEFELBEIN TESTIFIED THAT UPON WHITECOTTON'S TELLING HER OF
HER NEED FOR FREQUENT USE OF THE RESTROOM SHE TOLD HER THAT APART FROM
HER REGULAR BREAKS SHE SHOULD NOT LEAVE THE REGISTER UNATTENDED WITHOUT
TELLING SOMEONE WHERE SHE WAS GOING. ALTHOUGH SCHIEFELBEIN WAS NOT
ENTIRELY CREDIBLE ON SOME OTHER MATTERS, WITH RESPECT TO THIS MATTER I
CREDIT SCHIEFELBEIN'S TESTIMONY.
WHITECOTTON RETURNED TO WORK ON MARCH 15, 1976. SHE WAS TOLD BY
LEMEIRE AND SCHIEFELBEIN NOT TO DO ANY HEAVY LIFTING BECAUSE OF HER
PREVIOUS BACK INJURY BUT JUST TO WORK AT THE CHECK-OUT COUNTER. ON
MARCH 16 HER REGISTER WAS CHECKED AND A DISCREPANCY OF $10.22 WAS FOUND.
THE NEXT DAY A DISCREPANCY OF $2.00 WAS FOUND. ON MARCH 17 LEMEIRE
ISSUED A MEMORANDUM TO WHITECOTTON ADVISING HER OF THE FOREGOING WITH
RESPECT TO THE CASH REGISTER FOR WHICH SHE WAS "PRIMARILY RESPONSIBLE",
THAT SUCH OPERATION "WILL NOT BE TOLERATED", AND THAT IF WHITECOTTON
NEEDED ASSISTANCE IN IMPROVING HER CASH REGISTER OPERATION SHE SHOULD
COME TO LEMEIRE FOR HELP. THE MEMORANDUM ADVISED WHITECOTTON ALSO THAT
SHE DID NOT COOPERATE SUFFICIENTLY WITH THE OTHER EMPLOYEES OF THE
SECTION AND WAS NOT A MEMBER OF THE TEAM; THAT SUCH HAD BEEN THE
SITUATION BEFORE HER EXTENDED SICK LEAVE BUT IT HAD BECOME WORSE UPON
HER RETURN. /5/ WHITECOTTON SPOKE TO LEMEIRE ABOUT THE MEMORANDUM AND
ASKED HIM WHO HAD COMPLAINED ABOUT HER LACK OF COOPERATION, BUT HE DID
NOT TELL HER.
THE NEXT DAY, MARCH 18, LEMEIRE ISSUED ANOTHER MEMORANDUM TO
WHITECOTTON. IT RECOUNTED THE PREVIOUS DAY'S MEMORANDUM. IT STATED
ALSO THAT AT THE BEGINNING OF THE DAY ON MARCH 18 HER CASH REGISTER WAS
$4.10 OVER, AT CLOSEOUT AT NOON IT WAS $7.99 OVER, THAT A DISCREPANCY OF
$3.00 IN A WEEK WAS THE LIMIT OF TOLERANCE, THAT A DISCREPANCY OF $3.89
IN THREE HOURS WAS "UNIMAGINABLE", AND THAT IF HER CASH REGISTER
OPERATION DID NOT "DRASTICALLY IMPROVE IMMEDIATELY" HE WOULD BE FORCED
TO TERMINATE HER GOVERNMENT SERVICE. /6/ THE MEMORANDUM STATED ALSO
THAT ANOTHER EMPLOYEE HAD COMPLAINED ABOUT HER ATTITUDE AND THAT HER
ATTITUDE "WILL BE TOLERATED NO LONGER", AND THAT IF IT DID NOT IMPROVE
SHE WOULD BE REMOVED FROM GOVERNMENT SERVICE.
WHEN WHITECOTTON WAS APPOINTED A STEWARD IN DECEMBER SHE WAS GIVEN A
STEWARD'S BADGE SHOWING THAT SHE WAS A STEWARD, BUT SHE DID NOT WEAR IT
UNTIL MARCH 19, AFTER SHE HAD BEEN ISSUED THE TWO WARNINGS.
ON MARCH 23, 1976, AFTER SEVERAL MORE SPOT CHECKOUTS OF HER CASH
REGISTER, WHITECOTTON WAS GIVEN A MEMORANDUM RECOUNTING HER PRIOR CASH
REGISTER PERFORMANCE, AND REMINDING HER THAT TO BE RETAINED AS A
PROBATIONARY EMPLOYEE HER JOB PERFORMANCE MUST BE SATISFACTORY. IT
STATED THAT SUBSEQUENT CHECKOUTS HAD SHOWN ADDITIONAL LARGE
DISCREPANCIES, THAT HER PERFORMANCE WAS UNSATISFACTORY, AND THAT BECAUSE
OF HER INABILITY TO OPERATE A CASH REGISTER SATISFACTORILY HER
APPOINTMENT WOULD BE TERMINATED APRIL 9, 1976. /7/ NO MENTION WAS
CONTAINED IN THIS MEMORANDUM OF WHITECOTTON'S LACK OF COOPERATION WITH
HER FELLOW EMPLOYEES.
ON MARCH 26, AFTER THE LETTER OF TERMINATION AND BEFORE ITS EFFECTIVE
DATE, THE COMPLAINANT, IN ACCORDANCE WITH SECTION 203.2(A)(1) OF THE
REGULATIONS, SERVED AN UNFAIR-LABOR-PRACTICE CHARGE ON THE RESPONDENT.
TWO CONFERENCES WERE HELD ON THE CHARGE. AT BOTH OF THEM THE
COMPLAINANT ASKED LEMEIRE FOR THE NAMES OF THE EMPLOYEES WHO COMPLAINED
OF WHITECOTTON'S LACK OF COOPERATION BUT LEMEIRE DID NOT RESPOND.
DISCUSSION AND CONCLUSIONS
THE ULTIMATE QUESTION IN THIS CASE IS NOT WHETHER WHITECOTTON'S
PERFORMANCE ON THE JOB MERITED OR DID NOT MERIT THE TERMINATION OF HER
PROBATIONARY APPOINTMENT. THE CRITICAL QUESTION IS WHETHER SHE WAS
DISCRIMINATED AGAINST, AS ALLEGED, BECAUSE OF HER UNION ACTIVITIES.
THE COMPLAINANT CORRECTLY STATES THAT TO FIND A VIOLATION OF SECTIONS
19(A)(1) AND (2) IN THIS CASE IT MUST BE FOUND THAT (1) WHITECOTTON WAS
ENGAGING IN UNION ACTIVITY, (2) THE RESPONDENT HAD KNOWLEDGE OF HER
UNION ACTIVITY, (3) THE RESPONDENT SHOWED ANIMUS AGAINST HER UNION
ACTIVITY OR AGAINST UNION ACTIVITY IN GENERAL, AND (4) THE RESPONDENT
TOOK ACTION AGAINST HER BECAUSE OF HER UNION ACTIVITY. /8/ THERE CAN BE
LITTLE DOUBT THAT THE RESPONDENT'S METHOD OF CHECKING THE CASH REGISTER
AND ATTRIBUTING RESPONSIBILITY FOR DISCREPANCIES TO INDIVIDUAL EMPLOYEES
LEFT MUCH TO BE DESIRED AND COULD UNFAIRLY ATTRIBUTE RESPONSIBILITY TO
THE WRONG EMPLOYEE, AND THAT THE RESPONDENT'S PERSONNEL OFFICE WAS AWARE
OF THIS DEFICIENCY, BUT ANY SUCH UNFAIRNESS IS UNRELATED TO UNION
ACTIVITIES. LET US TAKE UP THE FOUR ELEMENTS OF THE VIOLATION ALLEGED
IN THIS CASE AS THE COMPLAINANT SETS THEM FORTH.
1. THERE IS NO DOUBT THAT WHITECOTTON ENGAGED IN UNION ACTIVITIES.
AT THE VERY LEAST SHE WAS A MEMBER. LATER SHE ALSO BECAME WOMEN'S
EDUCATIONAL DIRECTOR. HER ONLY ACTIVITY IN THAT CAPACITY SHOWN BY THE
RECORD IS ATTENDANCE AT A ONE-DAY CONFERENCE ON A SATURDAY IN
SCOTTSDALE, ARIZONA, A SUBURB OF PHOENIX. EVEN IF SHE ENGAGED IN OTHER
ACTIVITIES IN THAT CAPACITY THE PARTIES AGREE THAT IT WAS ENTIRELY
INTRA-UNION AND INVOLVED NO CONTACTS WITH MANAGEMENT. STILL LATER SHE
BECAME A STEWARD. THE RECORD DOES NOT INDICATE ANY ACTIVITY AT ALL IN
THAT CAPACITY; AT LEAST IT IS AGREED BY THE PARTIES THAT IN THAT
CAPACITY SHE HAD NO DEALINGS OR CONTACTS WITH MANAGEMENT. SUCH
"ACTIVITIES" ARE NOT LIKELY TO INCUR THE DISPLEASURE OF MANAGEMENT
ALTHOUGH IT IS CONCEIVABLE THAT THEY MIGHT.
2. I CONCLUDE, ALTHOUGH THE EVIDENCE IS CONFLICTING, THAT
SCHIEFELBEIN KNEW THAT WHITECOTTON HAD BECOME A MEMBER OF THE UNION. I
CONCLUDE ALSO THAT SCHIEFELBEIN KNEW THAT WHITECOTTON WAS GOING TO
ATTEND THE SCOTTSDALE CONFERENCE. IT IS MORE DOUBTFUL THAT LEMEIRE
KNEW, AT ANY TIME PRIOR TO MARCH 19, 1976, THAT WHITECOTTON ENGAGED IN
HER UNION "ACTIVITIES" BUT I CONCLUDE, ON THE BASIS OF TENUOUS AND
CONTRADICTORY EVIDENCE, THAT HE DID. I DO NOT MEAN THAT HE GAVE FALSE
TESTIMONY. SOME OF HIS ANSWERS WERE CAREFULLY COUCHED TO CONFORM TO
LITERAL TRUTH IN RESPONSE TO THE LITERAL QUESTION, ONE OF THE FACTORS
THAT LEADS ME TO THE CONCLUSION THAT HE KNEW BEFORE MARCH 19 THAT
WHITECOTTON WAS A UNION STEWARD AND HENCE A UNION MEMBER. NO ONE ELSE
IN MANAGEMENT WAS SHOWN TO HAVE KNOWN OF WHITECOTTON'S UNION
"ACTIVITIES" EXCEPT THAT, AS I HAVE FOUND ABOVE, IN FEBRUARY 1976 AN
EMPLOYMENT-RELATIONS SPECIALIST IN THE PERSONNEL OFFICE WAS TOLD IN THE
COURSE OF A CONVERSATION THAT WHITECOTTON HAD BECOME A STEWARD.
HOWEVER, I EXPRESSLY DID NOT FIND THAT THE SPECIALIST COMMUNICATED THAT
INFORMATION TO ANYBODY.
3. WITH RESPECT TO ANTI-UNION ANIMUS BY MANAGEMENT, THE EVIDENCE IS
QUITE SKIMPY. BEFORE SCHIEFELBEIN BECAME PART OF MANAGEMENT AS
ADMINISTRATIVE ASSISTANT TO LEMEIRE, WHEN SHE WAS ONLY A CLERK IN
LEMEIRE'S OFFICE, ON TWO SEPARATE OCCASIONS, WHEN ASKED BY ANOTHER
EMPLOYEE IN THE CANTEEN WHETHER THE UNION WAS WORTH JOINING, SHE ADVISED
THE FELLOW EMPLOYEE WHO MADE THE INQUIRY TO STAY AWAY FROM THE UNION,
THAT IT WAS TROUBLE. THERE IS NO EVIDENCE THAT HER ATTITUDE CONTINUED
AFTER SHE BECAME ADMINISTRATIVE ASSISTANT AND NO EVIDENCE THAT IT
CHANGED. IN THE ABSENCE OF EVIDENCE THAT IT CHANGED, I CONCLUDE THAT IT
CONTINUED.
WITH RESPECT TO LEMEIRE, THE EVIDENCE CONCERNING ANY UNION ANIMUS IS
NOT ONLY CONTRADICTORY BUT EVEN IF THE UNION'S EVIDENCE IS BELIEVED IS
TOO TENUOUS TO FIND ANIMUS ON HIS PART. WHITECOTTON TESTIFIED, AND
LEMEIRE DENIED, THAT WHEN WHITECOTTON, IN DECEMBER 1975 ASKED LEMEIRE
FOR LEAVE IN FEBRUARY 1976, LEMEIRE ASKED WHAT IT WAS FOR, SHE TOLD HIM
IT WAS BECAUSE OF A MEETING OF EDUCATIONAL DIRECTORS, AND HE ASKED WHAT
KIND OF EDUCATION SHE WAS TEACHING. WHEN HER COUNSEL ASKED HER WHAT WAS
DEROGATORY TO THE UNION IN SUCH A REMARK SHE TESTIFIED IT WAS BECAUSE HE
HAD A SMIRK ON HIS FACE WHEN HE SAID IT. /9/ LEMEIRE DENIED HAVING HAD
THAT EXCHANGE. BUT EVEN IF WE ACCEPT WHITECOTTON'S VERSION, A
CONCLUSION OF UNION ANIMUS ON THE PART OF LEMEIRE CAN HARDLY BE
PREDICATED ON WHITECOTTON'S INTERPRETATION OF AN EXPRESSION ON LEMEIRE'S
FACE WHEN HE UTTERED WORDS OTHERWISE INNOCUOUS, ESPECIALLY WHEN THAT IS
THE ONLY INCIDENT THAT COULD EVEN BE CONSTRUED TO SHOW ANIMUS ON THE
PART OF LEMEIRE. EVEN IF HE IN FACT SMIRKED IT COULD HAVE BEEN FOR
INNUMERABLE REASONS OTHER THAN HARBORING ANTI-UNION ANIMUS.
4. I DO NOT CONCLUDE THAT THE TERMINATION OF WHITECOTTON'S
EMPLOYMENT WAS MOTIVATED BY HER UNION ACTIVITY OR THAT SHE WAS HARASSED
BECAUSE OF HER UNION ACTIVITY.
THE ONLY PERSON IN MANAGEMENT SHOWN TO HAVE UNION ANIMUS WAS
SCHIEFELBEIN, BUT SHE WAS SHOWN ONLY TO HAVE HAD IT BEFORE SHE BECAME
PART OF MANAGEMENT AND SHE DID NOT HAVE FIRING AUTHORITY. WHITECOTTON'S
"UNION ACTIVITY", SO FAR AS MANAGEMENT WAS CONCERNED, WAS MINIMAL.
THERE IS NOTHING TO INDICATE SHE WAS A MILITANT MEMBER OR THAT IF SHE
WAS THAT MANAGEMENT KNEW IT. AS WOMEN'S EDUCATIONAL DIRECTOR HER
ACTIVITIES DID NOT BRING HER IN CONFLICT OR EVEN IN CONTACT WITH
MANAGEMENT; IT WAS A PURELY INTRA-UNION ACTIVITY. THERE WAS NO
EVIDENCE OF ANY ACTIVITY AT ALL BY WHITECOTTON AS A UNION STEWARD AFTER
SHE ACCEPTED HER APPOINTMENT AS SUCH IN DECEMBER 1975; THE WITNESSES ON
BOTH SIDES TESTIFIED THAT SHE HAD NO DEALINGS OR CONTACT WITH MANAGEMENT
AS A UNION STEWARD, AND THERE WAS NO CONTRADICTORY EVIDENCE. I
NECESSARILY CONCLUDE THAT THERE WERE NO SUCH DEALINGS OR CONTACT.
RATHER THAN TERMINATING HER EMPLOYMENT BECAUSE OF SUCH ACTIVITY ONE
WOULD SUPPOSE MANAGEMENT, EVEN A MANAGEMENT HOSTILE TO UNIONISM, WOULD
WELCOME SUCH A QUIESCENT UNION STEWARD. IN ANY EVENT, IT CERTAINLY DOES
NOT INDICATE THAT HER UNION ACTIVITY PLAYED ANY PART IN THE DECISION TO
TERMINATE HER EMPLOYMENT.
FURTHERMORE, THERE IS NO EVIDENCE THAT ANY OTHER MEMBERS OF THE UNION
WERE DISCRIMINATED AGAINST. THERE WERE OTHER MEMBERS, AT LEAST ONE IN
THE CANTEEN, AND SHE DID NOT EVEN ALLEGEDLY SUFFER DISCRIMINATION. THAT
OTHER EMPLOYEE IN THE CANTEEN WHO WAS A UNION MEMBER HAD HER DUES
CHECKED OFF; WHITECOTTON DID NOT.
IN SUM, ALTHOUGH WHITECOTTON'S DISCHARGE DOES NOT APPEAR TO BE FREE
FROM UNFAIRNESS, HER UNION ACTIVITIES DO NOT APPEAR TO HAVE HAD A PART
IN SUCH UNFAIRNESS OR HER SUBSEQUENT TERMINATION. I REACH THIS
CONCLUSION FOR THE REASONS STATED ABOVE BUT PRIMARILY BECAUSE HER
ACTIVITIES FOR THE UNION DID NOT CAUSE HER TO HAVE ANY DEALINGS OR
CONTACT WITH MANAGEMENT AND SO FAR AS THE RECORD SHOWS CONSISTED
EXCLUSIVELY OF ATTENDING A ONE-DAY CONFERENCE ON A WEEKEND IN A SUBURB
OF THE CITY IN WHICH SHE WAS EMPLOYED. THE UNFAIR TREATMENT OF AN
EMPLOYEE WHO IS A UNION ADHERENT AND STEWARD GIVES RISE TO SUSPICION,
BUT SUSPICION IS NOT ENOUGH TO SUPPORT A VIOLATION OF THE EXECUTIVE
ORDER. /10/ HERE THE UNFAIRNESS SEEMS TO HAVE BEEN UNIFORMLY IMPOSED
AND TO HAVE HAD NO RELATIONSHIP TO UNION ACTIVITY. THE COMPLAINT SHOULD
BE DISMISSED.
RECOMMENDATION
THE COMPLAINT SHOULD BE DISMISSED.
MILTON KRAMER
ADMINISTRATIVE LAW JUDGE
DATED: APRIL 4, 1977
WASHINGTON, D.C.
/1/ EXHIBIT ALJ-1.
/2/ TR. 13, 15, 16.
/3/ AN UNUSUALLY LARGE PROPORTION OF THE FACTUAL MATTERS IN THIS CASE
WAS SHARPLY CONTROVERTED. IN ADDITION, ABOUT THREE OF THE NUMEROUS
WITNESSES WERE NOT ENTIRELY CREDIBLE, AND ABOUT AN EQUAL NUMBER WERE
SOMEWHAT CONFUSED.
/4/ EXH. C-1B.
/5/ EXH. C-2
/6/ EXH. C-3
/7/ EXH. C-4
/8/ COMPLAINANT'S BRIEF, P. 1.
/9/ TR. 40
/10/ INTERSTATE COMMERCE COMMISSION, A/SLMR NO. 773, PP. 16-17 OF ALJ
DECISION.
7 A/SLMR 882; P. 672; CASE NO. 40-07640(CU); AUGUST 26, 1977.
AUGUST 26, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER CLARIFYING UNIT
OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE, SOCIAL SECURITY ADMINISTRATION,
BUREAU OF HEARINGS AND APPEALS, REGION IV
A/SLMR NO. 882
THIS CASE INVOLVED A PETITION FOR CLARIFICATION OF UNIT (CU) FILED BY
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3627,
(AFGE) SEEKING TO CLARIFY THE STATUS OF EMPLOYEES DESIGNATED AS THE
SECRETARY TO THE ADMINISTRATIVE LAW JUDGE IN CHARGE (ALJIC) LOCATED IN
EACH OF THE ACTIVITY'S 28 FIELD OFFICES. THE ACTIVITY CONTENDED THAT
EMPLOYEES IN SAID POSITION WERE CONFIDENTIAL EMPLOYEES AND SHOULD BE
EXCLUDED FROM THE AFGE'S EXCLUSIVELY RECOGNIZED UNIT. THE AFGE
CONTENDED THAT THE POSITION IN QUESTION SHOULD REMAIN IN THE UNIT.
THE ASSISTANT SECRETARY FOUND THAT THE SECRETARY TO THE ALJIC WAS A
CONFIDENTIAL EMPLOYEE AND SHOULD BE EXCLUDED FROM THE UNIT. IN THIS
REGARD, THE EVIDENCE ESTABLISHED THAT THE ALJICS WERE INVOLVED IN THE
EFFECTUATION OF THE ACTIVITY'S LABOR RELATIONS POLICIES AND THAT THE
SECRETARIES TO THE ALJICS ACTED AS THEIR PRINCIPAL SECRETARY AND, IN
THIS CAPACITY, HAD CUSTODIAL RESPONSIBILITY FOR LABOR RELATIONS FILES
CONTAINING UNION-MANAGEMENT CORRESPONDENCE; TYPED CONFIDENTIAL
MEMORANDA FROM THE ALJICS TO THE ACTIVITY CONCERNING LABOR RELATIONS
MATTERS; AND WOULD BE REQUIRED TO PREPARE MATERIAL IN CONNECTION WITH
GRIEVANCES AND OTHER LABOR RELATIONS MATTERS IN ACCORDANCE WITH THE
DIRECTIONS OF THE ALJICS.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE UNIT BE
CLARIFIED CONSISTENT WITH HIS FINDINGS.
DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE, SOCIAL SECURITY ADMINISTRATION,
BUREAU OF HEARINGS AND APPEALS, REGION IV
ACTIVITY
CASE NO. 40-07640(CU)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3627
LABOR ORGANIZATION-PETITIONER
DECISION AND ORDER CLARIFYING UNIT
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER ROBERT F.
WOODLAND, JR. 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 3627, HEREIN CALLED AFGE, SEEKS TO CLARIFY THE STATUS OF EMPLOYEES
DESIGNATED AS THE SECRETARY TO THE ADMINISTRATIVE LAW JUDGE IN CHARGE
(ALJIC) AT 28 FIELD OFFICES LOCATED WITHIN THE ACTIVITY. THE AFGE
CONTENDS THAT THE EMPLOYEES INVOLVED ARE NOT CONFIDENTIAL EMPLOYEES AND
SHOULD BE INCLUDED WITHIN ITS EXCLUSIVELY RECOGNIZED UNIT. THE ACTIVITY
CONTENDS, ON THE OTHER HAND, THAT EMPLOYEES IN THE DISPUTED POSITION
ASSIST AND ACT IN A CONFIDENTIAL CAPACITY TO THE ALJIC WHO FORMULATES
AND EFFECTUATES MANAGEMENT POLICIES IN THE FIELD OF LABOR RELATIONS AND,
THEREFORE, THEY SHOULD BE EXCLUDED FROM THE EXCLUSIVELY RECOGNIZED UNIT
AS CONFIDENTIAL EMPLOYEES.
THE RECORD REVEALS THAT THE AFGE WAS CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE FOR ALL NONPROFESSIONAL EMPLOYEES OF THE ACTIVITY'S FIELD
OFFICES ON MAY 26, 1976. /1/ THE MISSION OF THE ACTIVITY IS TO CONDUCT
HEARINGS AND TO RENDER APPEALS DECISIONS FOR THE SOCIAL SECURITY
ADMINISTRATION PURSUANT TO TITLE II OF THE SOCIAL SECURITY ACT. THE
BUREAU OF HEARINGS AND APPEALS (BUREAU) IS A COMPONENT OF THE SOCIAL
SECURITY ADMINISTRATION, WHICH IS, IN TURN, A COMPONENT OF THE
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE. THE BUREAU IS HEADED BY A
DIRECTOR, AND IS ORGANIZED INTO TEN REGIONS, INCLUDING THE ACTIVITY,
EACH HEADED BY A REGIONAL ADMINISTRATOR. THE ACTIVITY, HEADQUARTERED IN
ATLANTA, GEORGIA, ENCOMPASSES EIGHT STATES AND HAS 28 FIELD OFFICES.
EACH OF THE FIELD OFFICES IS HEADED BY AN ALJIC, AND HAS ONE EMPLOYEE
DESIGNATED AS THE SECRETARY TO THE ALJIC. THE FIELD OFFICES VARY IN
SIZE FROM NINE ADMINISTRATIVE LAW JUDGES AND 30 STAFF PERSONNEL, TO TWO
ADMINISTRATIVE LAW JUDGES AND SIX STAFF PERSONNEL.
THE EVIDENCE ESTABLISHES TH-T THE ALJICS EFFECTUATE MANAGEMENT
POLICIES IN THE FIELD OF LABOR RELATIONS. THUS, THEY ARE AUTHORIZED TO
ADJUST GRIEVANCES AT THE SECOND STEP; THEY HAVE OVERALL PERSONNEL AND
ADMINISTRATIVE RESPONSIBILITIES FOR THEIR FIELD OFFICES; THEY HAVE BEEN
CONSULTED BY THE ACTIVITY ON COLLECTIVE BARGAINING AGREEMENT PROVISIONS
PROPOSED BY THE AFGE; THEY ARE THE REVIEWING OFFICIALS IN THE FIELD
OFFICES FOR PERFORMANCE APPRAISALS; AND THEY ESTABLISH CERTAIN WORKING
CONDITIONS FOR THEIR RESPECTIVE FIELD OFFICES.
THE RECORD REVEALS THAT THE SECRETARIES TO THE ALJICS PERFORM A
VARIETY OF ADMINISTRATIVE AND CLERICAL DUTIES FOR THE ALJICS INCLUDING
ACTING AS THEIR PRINCIPAL SECRETARY. IN THIS REGARD, AMONG OTHER
THINGS, THE RECORD REVEALS THAT THE SECRETARIES HAVE CUSTODIAL
RESPONSIBILITY FOR LABOR RELATIONS FILES CONTAINING UNION-MANAGEMENT
CORRESPONDENCE; THEY TYPE CONFIDENTIAL MEMORANDA FROM THE ALJICS TO THE
ACTIVITY CONCERNING LABOR RELATIONS MATTERS; THEY PREPARE
CORRESPONDENCE CONCERNING EMPLOYEE PERFORMANCE AND DISCIPLINE; AND THEY
WOULD BE REQUIRED TO PREPARE MATERIAL IN CONNECTION WITH GRIEVANCES AND
OTHER LABOR RELATIONS MATTERS IN ACCORDANCE WITH THE DIRECTIONS OF THE
ALJICS.
UNDER THESE CIRCUMSTANCES, I FIND THAT EMPLOYEES DESIGNATED AS THE
SECRETARY TO THE ALJIC AT EACH OF THE 28 FIELD OFFICES HEREIN ARE
CONFIDENTIAL EMPLOYEES INASMUCH AS THEY ASSIST AND ACT IN A CONFIDENTIAL
CAPACITY TO OFFICIALS WHO ARE INVOLVED IN EFFECTUATING MANAGEMENT
POLICIES IN THE FIELD OF LABOR RELATIONS. /2/ THUS, AS NOTED ABOVE,
EMPLOYEES IN THIS CLASSIFICATION TYPE CONFIDENTIAL MEMORANDA CONCERNING
LABOR RELATIONS MATTERS FOR THE ALJICS AND WOULD BE REQUIRED TO PREPARE
MATERIAL IN CONNECTION WITH THE ALJICS' HANDLING OF EMPLOYEE GRIEVANCES
AND OTHER LABOR RELATIONS MATTERS. IT HAS BEEN HELD PREVIOUSLY THAT AN
EMPLOYEE WHO IS THE PRINCIPAL SECRETARY AND ACTS IN A CONFIDENTIAL
CAPACITY TO A PERSON WHO IS INVOLVED IN THE FORMULATION AND/OR
EFFECTUATION OF MANAGEMENT POLICIES IN THE FIELD OF LABOR-MANAGEMENT
RELATIONS IS A CONFIDENTIAL EMPLOYEE. /3/ IN THE INSTANT CASE, THE
EVIDENCE ESTABLISHES THAT THE ALJICS ARE INVOLVED IN THE EFFECTUATION OF
THE ACTIVITY'S LABOR-MANAGEMENT RELATIONS POLICIES, AND THAT THE
SECRETARIES TO THE ALJICS ACT AS THEIR PRINCIPAL SECRETARY AND PERFORM
CONFIDENTIAL DUTIES FOR THEM WITH RESPECT TO LABOR RELATIONS MATTERS.
ACCORDINGLY, I SHALL EXCLUDE THE SECRETARY TO THE ALJIC IN EACH OF THE
ACTIVITY'S 28 FIELD OFFICES FROM THE EXCLUSIVELY RECOGNIZED UNIT.
ORDER
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, FOR
WHICH THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
3627, WAS CERTIFIED ON MAY 26, 1976, BE, AND IT HEREBY IS, CLARIFIED BY
EXCLUDING FROM SAID UNIT THE EMPLOYEES DESIGNATED AS THE SECRETARY TO
THE ADMINISTRATIVE LAW JUDGE IN CHARGE IN EACH FIELD OFFICE OF REGION IV
OF THE BUREAU OF HEARINGS AND APPEALS.
DATED, WASHINGTON, D.C.
AUGUST 26, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ THE CERTIFIED UNIT IS DESCRIBED AS: "ALL NONPROFESSIONAL
EMPLOYEES EMPLOYED AT FIELD OFFICES OF REGION IV, BUREAU OF HEARINGS AND
APPEALS EXCLUDING PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A CLERICAL CAPACITY, CONFIDENTIAL
EMPLOYEES, MANAGEMENT OFFICIALS, AND SUPERVISORS AS DEFINED IN THE
ORDER."
/2/ CF. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, FEDERAL HOUSING
ADMINISTRATION, FARGO INSURING OFFICE, FARGO, NORTH DAKOTA, A/SLMR NO.
645, AND VIRGINIA NATIONAL GUARD HEADQUARTERS, 4TH BATTALION, 111TH
ARTILLERY, A/SLMR NO. 69.
/3/ SEE FEDERAL AVIATION ADMINISTRATION, AIRWAY FACILITIES SECTOR 37,
TAMPA, FLORICA, A/SLMR NO. 647; DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE, SOCIAL SECURITY ADMINISTRATION, BUREAU OF FIELD OPERATIONS,
BOSTON REGION, DISTRICT AND BRANCH OFFICES, A/SLMR NO. 562; AND
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, BUREAU OF HEARINGS AND APPEALS, PUERTO RICO, A/SLMR NO.
625.
7 A/SLMR 881; P. 667; CASE NO. 62-5131(CA); AUGUST 26, 1977.
AUGUST 26, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
GENERAL SERVICES ADMINISTRATION,
NATIONAL PERSONNEL RECORDS CENTER,
ST. LOUIS, MISSOURI
A/SLMR NO. 881
THIS CASE INVOLVED AN AMENDED UNFAIR LABOR PRACTICE COMPLAINT FILED
BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 900
(COMPLAINANT) ALLEGING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND
(6) OF THE ORDER BY NOT INFORMING THE COMPLAINANT OF ITS DECISION TO
DISESTABLISH THE CONGRESSIONAL CORRESPONDENCE OFFICE UNTIL AFTER WRITTEN
INSTRUCTIONS WERE SENT TO THE SUPERVISORS AND BY APPROVING THE CHANGES
BEFORE ANY NOTICE WAS SENT TO THE COMPLAINANT. THE RESPONDENT TOOK THE
POSITION THAT THE COMPLAINANT WAS GIVEN REASONABLE NOTIFICATION AND
AMPLE OPPORTUNITY TO COMMENT ON THE IMPACT OF THE DECISION PRIOR TO ITS
EFFECTIVE DATE AND THAT IT WAS WILLING TO DELAY IMPLEMENTING THE
DECISION IF THE COMPLAINANT HAD PRESENTED ANY ALTERNATIVE PROPOSALS.
THE COMPLAINANT, ON THE OTHER HAND, MAINTAINED THAT BARGAINING OVER
IMPACT AND IMPLEMENTATION DID NOT OCCUR.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT HAD NOT
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER. IN THIS REGARD, HE
FOUND THAT THERE WAS OPPORTUNITY FOR THE COMPLAINANT TO REQUEST
BARGAINING CONCERNING THE IMPACT OF THE DECISION PRIOR TO ITS
IMPLEMENTATION; THAT THE RESPONDENT MET WITH THE COMPLAINANT AND
EXPLAINED ITS PLAN, BUT THE COMPLAINANT OFFERED NO ADVERSE CRITICISM OR
ALTERNATIVE SUGGESTIONS; AND THAT THE RESPONDENT DID NOT REFUSE TO
NEGOTIATE WITH RESPECT TO THE IMPACT OF ITS DECISION. NOR DID THE
RESPONDENT'S ACTIONS CONSTITUTE AN IMPROPER BYPASS OR UNDERMINE THE
COMPLAINANT'S STATUS AS THE EMPLOYEES' COLLECTIVE BARGAINING
REPRESENTATIVE.
NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE ASSISTANT
SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE
ADMINISTRATIVE LAW JUDGE AND ORDERED THAT THE COMPLAINT BE DISMISSED.
GENERAL SERVICES ADMINISTRATION,
NATIONAL PERSONNEL RECORDS CENTER,
ST. LOUIS, MISSOURI
RESPONDENT
CASE NO. 62-5131(CA)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 900
COMPLAINANT
DECISION AND ORDER
ON MAY 4, 1977, ADMINISTRATIVE LAW JUDGE RHEA M. BURROW 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 COMPLAINT AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS
ENTIRETY. NO EXCEPTIONS WERE FILED 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, AND NOTING PARTICULARLY
THE ABSENCE OF EXCEPTIONS, I HEREBY ADOPT THE ADMINISTRATIVE LAW JUDGE'S
FINDINGS, CONCLUSIONS, AND RECOMMENDATION. /1/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 62-5131(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
AUGUST 26, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ AT FOOTNOTE 4 ON PAGE 6 OF HIS RECOMMENDED DECISION AND ORDER THE
ADMINISTRATIVE LAW JUDGE INADVERTENTLY CITED U.S. DEPARTMENT OF
INTERIOR, BUREAU OF INDIAN AFFAIRS, A/SLMR NO. 341 AS A/SLMR NO. 34.
THIS INADVERTENCE IS HEREBY CORRECTED.
U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
SUITE 700-1111 20TH STREET, N.W.
WASHINGTON, D.C. 20036
IN THE MATTER OF
GENERAL SERVICES ADMINISTRATION
NATIONAL PERSONNEL RECORDS CENTER,
ST. LOUIS, MISSOURI
RESPONDENT
CASE NO. 62-5131(CA)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL UNION 900
COMPLAINANT
JAMES L. KEALING, ESQ.
REGIONAL COUNSEL
G.S.A., REGION 6
1500 EAST BANNISTER ROAD
KANSAS CITY, MISSOURI 64131
FOR THE RESPONDENT
WILLIAM MARTIN, JR.
NATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
4030 CUPPLES PLACE
ST. LOUIS, MISSOURI 64113
FOR THE COMPLAINANT
BEFORE: RHEA M. BURROW
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO A COMPLAINT AND AMENDMENTS FILED ON AUGUST 11, 23, AND
NOVEMBER 9, 1976, RESPECTIVELY, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL UNION
900, (HEREINAFTER CALLED THE UNION AND/OR COMPLAINANT), AGAINST THE
GENERAL SERVICES ADMINISTRATION NATIONAL PERSONNEL RECORDS CENTER, ST.
LOUIS, MISSOURI, (HEREINAFTER CALLED THE RESPONDENT AND/OR ACTIVITY), A
NOTICE OF HEARING TO BE HELD ON JANUARY 18, 1977 WAS ISSUED BY THE
ASSISTANT REGIONAL DIRECTOR FOR THE KANSAS CITY REGION ON NOVEMBER 12,
1976.
THE COMPLAINT, AS AMENDED, ALLEGES THAT THE RESPONDENT VIOLATED
SECTION 19(A)(1) AND (6) OF THE EXECUTIVE ORDER 11491 (HEREIN CALLED THE
ORDER) BY REASON OF THE FOLLOWING: "ON MAY 25, 1976, MR. J. D. KILGORE,
ASSISTANT DIRECTOR FOR MILITARY RECORDS, AND THEN ACTING DIRECTOR,
NATIONAL PERSONNEL RECORDS CENTER, PROVIDED THE UNION WITH A COPY OF A
MEMORANDUM SUBJECT: DISESTABLISHMENT OF CONGRESSIONAL CORRESPONDENCE
OFFICE DATED MAY 25, 1976. THE UNION WAS NEVER OFFICIALLY INFORMED OF
THE CHANGE UNTIL WRITTEN INSTRUCTIONS WERE SENT TO ALL SUPERVISORS.
FURTHER, THE CHANGES WERE APPROVED BY MR. KILGORE BEFORE ANY NOTICE WAS
SENT TO THE UNION."
A HEARING WAS HELD ON JANUARY 18, 1977 ON THE CAPTIONED MATTER IN ST.
LOUIS, MISSOURI. 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 AND MEMORANDA AND/OR BRIEFS SUBMITTED BY
COUNSEL OR REPRESENTATIVE FOR THE RESPECTIVE PARTIES, I MAKE THE
FOLLOWING FINDINGS, CONCLUSIONS AND RECOMMENDATION:
BACKGROUND INFORMATION
AT THE GENERAL SERVICES RECORDS CENTER IN ST. LOUIS, MISSOURI ON JULY
12, 1973 THERE WAS A DISASTROUS FIRE THAT DESTROYED SOME 17 TO 18
MILLION MILITARY PERSONNEL RECORDS. BEFORE THE FIRE, CONGRESSIONAL
INQUIRIES AND CORRESPONDENCE WERE HANDLED IN THE VARIOUS RECORD CENTER
BRANCHES BY EMPLOYEES AT THE GS-6 LEVEL BASED ON THE LEVEL OF DIFFICULTY
THAT HAD BEEN ESTABLISHED FOR THIS TYPE OF WORK. /1/
BECAUSE OF THE VOLUMINOUS INCREASE OF CONGRESSIONAL INQUIRIES AND
CORRESPONDENCE FOLLOWING THE FIRE A CONGRESSIONAL LIAISON STAFF OFFICE
WAS ESTABLISHED ON APRIL 15, 1974. CONGRESSIONAL INQUIRIES AND
CORRESPONDENCE PREVIOUSLY HANDLED BY THE VARIOUS BRANCHES WAS DONE IN
THE CONGRESSIONAL CORRESPONDENCE OFFICE AT THE NATIONAL PERSONNEL
RECORDS CENTER. EMPLOYEES AT THE GS-6 LEVEL OR ABOVE INCLUDING THOSE
WHO HAD PREVIOUSLY HANDLED CONGRESSIONAL INQUIRIES AND CORRESPONDENCE
WERE TRANSFERRED INTO THE NEW CONGRESSIONAL CORRESPONDENCE OFFICE TO
HANDLE THE WORK LOAD. WHEN THE EMERGENCY SITUATION WHICH PROMPTED THE
ESTABLISHMENT OF THE CORRESPONDENCE OFFICE AS A PART OF NCPM CEASED
THERE WAS A DECISION MADE ON MAY 10, 1976, TO DISESTABLISH IT EFFECTIVE
JUNE 7, 1976. ALL PERSONNEL HANDLING THE INQUIRIES WERE TRANSFERRED TO
THE RESPECTIVE BRANCHES THAT HAD HANDLED THE WORK BEFORE THE EMERGENCY
CONGRESSIONAL CORRESPONDENCE OFFICE WAS ESTABLISHED. IT IS THE
CIRCUMSTANCES LEADING TO AND SURROUNDING THE DECISION TO DISESTABLISH
THE CONGRESSIONAL CORRESPONDENCE OFFICE THAT LEAD TO THE UNFAIR LABOR
PRACTICE COMPLAINT.
FINDINGS OF FACT
1. THE COMPLAINANT LOCAL UNION AFGE NO. 900, IS AND WAS AT ALL TIMES
MATERIAL HEREIN, THE EXCLUSIVE REPRESENTATIVE FOR THE UNIT COMPRISED OF
ALL NON-SUPERVISORY EMPLOYEES WORKING AT THE NATIONAL RECORDS CENTER,
GSA, 9700 PAGE BOULEVARD, ST. LOUIS, MISSOURI. /2/
2. ON MAY 10, 1976, A DECISION TO DISESTABLISH THE CONGRESSIONAL
CORRESPONDENCE OFFICE WAS MADE BY WARREN B. GRIFFIN, DIRECTOR, NATIONAL
PERSONNEL CENTER AFTER DISCUSSING THE MATTER WITH THE ASSISTANT DIRECTOR
AND OTHER MEMBERS OF THE STAFF.
3. A DRAFT COPY OF A PROPOSED DIRECTIVE TO THE STAFF ANNOUNCING THAT
THE EMERGENCY SITUATION WHICH PROMPTED ESTABLISHMENT OF THE
CORRESPONDENCE OFFICE AS A PART OF NCPM NO LONGER EXISTED AND THE
CONGRESSIONAL CORRESPONDENCE OFFICE WOULD BE DISESTABLISHED EFFECTIVE
JUNE 7, 1976 WAS FORWARDED TO THE COMPLAINANT UNION WITH A COVERING
MEMORANDUM ON MAY 25, 1976. THE MEMORANDUM STATED IN PART:
"REQUEST YOUR COMMENTS, TOGETHER WITH ANY SUGGESTIONS YOU MAY CARE TO
OFFER BY CLOSE OF
BUSINESS JUNE 4, 1976."
4. THE COMPLAINANT UNION PRESIDENT IN A LETTER DATED MAY 26, 1976
SUBJECT: DISESTABLISHMENT OF CONGRESSIONAL CORRESPONDENCE OFFICE, NCPM
AND NPRG MAIL ROUTING GUIDE (MPR AND CPR) BOTH DATED MAY 25, 1976
REQUESTED "THAT THE EFFECTIVE DATE FOR IMPLEMENTATION BE DEFERRED," AND
SUGGESTED JUNE 7, 1976 AS AN APPROPRIATE DATE FOR A MEETING AND
DISCUSSION.
5. THE RESPONDENT'S ACTING DIRECTOR ON MAY 27, 1976 REPLIED THAT:
"THE DISESTABLISHMENT OF THE CONGRESSIONAL CORRESPONDENCE OFFICE IS A
MATTER THAT WE MUST PROCEED WITH IMMEDIATELY." HE SUGGESTED JUNE 1 OR 2
AS OPTIONAL DATES TO "DISCUSS PROCEDURES TO BE FOLLOWED IN REASSIGNMENT
OF EMPLOYEES CURRENTLY IN THE CONGRESSIONAL CORRESPONDENCE OFFICE." HE
FURTHER STATED THAT AS TO THE CASE WORKING LEVEL IN THE PROPOSED CHANGE
TO THE NPRC MAIL ROUTING GUIDE, THE DISCUSSION OF THAT MATTER CAN BE
DEFERRED AS REQUESTED. JUNE 8, 1976 WAS SUGGESTED AS AN APPROPRIATE
MEETING DATE REGARDING THIS SUBJECT. THE LATTER CHANGE IS AN ISSUE
SEPARATE AND APART FROM THE DISESTABLISHMENT OF THE CONGRESSIONAL
CORRESPONDENCE OFFICE INVOLVED IN THIS PROCEEDING.
6. THE CONSULTATION MEETING AS TO THE DISESTABLISHMENT OF THE
CONGRESSIONAL CORRESPONDENCE OFFICE WAS ARRANGED AND HELD BETWEEN
COMPLAINANT AND RESPONDENT REPRESENTATIVES ON JUNE 4, 1976.
7. THE PROCEDURES TO BE FOLLOWED IN REASSIGNMENT OF EMPLOYEES IN THE
CONGRESSIONAL CORRESPONDENCE OFFICE WERE DISCUSSED AT THE JUNE 4, 1976
CONSULTATION MEETING AS WELL AS MATTERS OF ANTICIPATED IMPACT. /3/ IT
WAS ANNOUNCED AT THE MEETING THAT ALL EMPLOYEES IN THE CONGRESSIONAL
CORRESPONDENCE OFFICE WOULD BE TRANSFERRED TO OTHER UNITS AT THEIR
CURRENT GRADE.
8. AT THE HEARING, ORAL AND DOCUMENTARY EVIDENCE WAS PRESENTED THAT
EMPLOYEES IN THE CONGRESSIONAL CORRESPONDENCE OFFICE HAD BEEN
TRANSFERRED TO OTHER BRANCHES IN GRADE, AND HAD CONTINUED TO WORK IN THE
SAME BUILDING AND DURING THE SAME HOURS AS THEY PREVIOUSLY WORKED. THEY
CONTINUED TO HANDLE CONGRESSIONAL CORRESPONDENCE ON THEIR NEW
ASSIGNMENT, ALTHOUGH THEY SERVED IN VARIOUS BRANCHES. NO ADVERSE
ACTIONS AS TO ANY OF THE EMPLOYEES WHO HAD PREVIOUSLY WORKED IN THE
CONGRESSIONAL CORRESPONDENCE OFFICE WAS CLAIMED OR SHOWN.
9. THE RECORD ESTABLISHES THAT THE COMPLAINANT WAS AFFORDED A
REASONABLE OPPORTUNITY AT THE JUNE 4, 1976 MEETING WITH RESPONDENT TO
MAKE MEANINGFUL INPUT AS TO IMPACT OF THE DECISION TO DISESTABLISH THE
CONGRESSIONAL CORRESPONDENCE OFFICE. FURTHER, THE RECORD ESTABLISHES
THAT THE COMPLAINANT DID IN FACT DISCUSS IMPACT AS TO THE AFFECTED
EMPLOYEES BUT AFTER HEARING THE PLAN OFFERED NO COMMENT OR ANY
ALTERNATIVE TO MANAGEMENT FOR CONSIDERATION.
10. INITIALLY, DISESTABLISHMENT OF THE CONGRESSIONAL CORRESPONDENCE
OFFICE WAS CONTEMPLATED TO OCCUR ON MAY 31, 1976, BUT WAS POSTPONED TO
JUNE 7, 1976 TO ALLOW TIME FOR COMPLAINANT TO DISCUSS IMPLEMENTATION
PLANS AND IMPACT AFFECTING THE EMPLOYEES.
11. THE PLAN OF IMPLEMENTATION DISCUSSED BETWEEN RESPONDENT AND
COMPLAINANT AT THE JUNE 4, 1976 MEETING WAS SUFFICIENTLY FLEXIBLE TO
ACCOMMODATE REASONABLE CHANGE HAD SUCH BEEN REQUESTED.
DISCUSSION AND EVALUATION
THE COMPLAINANT CHARGES THAT THE RESPONDENT VIOLATED SECTIONS
19(A)(1) AND (6) OF THE ORDER BY ITS ACTION IN DISESTABLISHING THE
CONGRESSIONAL CORRESPONDENCE UNIT OFFICE WITHOUT NOTIFYING THE UNION AND
NOT AFFORDING THE UNION AN OPPORTUNITY TO MAKE ITS INPUT BEFORE WRITTEN
INSTRUCTIONS WERE SENT TO RESPONDENT'S SUPERVISORS.
SECTION 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491 PROVIDES THAT
"AGENCY MANAGEMENT SHALL NOT (1) INTERFERE WITH, RESTRAIN OR COERCE AN
EMPLOYEE IN THE EXERCISE OF RIGHTS ASSURED BY THIS ORDER; AND (6)
REFUSE TO CONSULT, CONFER OR NEGOTIATE WITH A LABOR ORGANIZATION AS
REQUIRED BY THIS ORDER.
SECTION 11(A) OF THE ORDER, AS AMENDED IMPOSED UPON ANY 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 THE AGENCY; ITS BUDGET;
ITS ORGANIZATION; THE NUMBER OF EMPLOYEES; AND THE NUMBERS, TYPES, AND
GRADES OF POSITIONS OF EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL UNIT,
WORK PROJECT OR TOUR OF DUTY; THE TECHNOLOGY OF PERFORMING ITS WORK;
OR ITS INTERNAL SECURITY PRACTICES.
THE ABOVE EXCEPTION CONTAINED IN SECTION 11(B) WITH RESPECT TO THOSE
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. /4/
THE RESPONDENT HAD THE RIGHT UNDER SECTION 11(B) OF THE EXECUTIVE
ORDER UNILATERALLY TO CLOSE THE CONGRESSIONAL CORRESPONDENCE OFFICE UNIT
IN FURTHERANCE OF PERFORMING ITS WORK PROJECTS AND THE TECHNOLOGY
UTILIZED IN PERFORMING SUCH WORK. NEVERTHELESS, AN AGENCY OR ACTIVITY
IS OBLIGATED TO AFFORD THE EXCLUSIVE REPRESENTATIVE 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 EXECUTIVE ORDER. UNITED STATES AIR FORCE ELECTRONICS
SYSTEM DIVISION (AFSC) HANSON AIR FORCE BASE AND LOCAL 975, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, A/SLMR NO. 571 (1975). THE COVERING
MEMORANDUM TO THE UNION ATTACHED TO THE MAY 25, 1976 ANNOUNCEMENT OF THE
DISESTABLISHMENT OF THE CONGRESSIONAL CORRESPONDENCE OFFICE REQUESTED
COMMENTS AND SUGGESTIONS BY THE CLOSE OF BUSINESS ON JUNE 4, 1976.
THERE WAS OPPORTUNITY FOR THE COMPLAINANT TO REQUEST BARGAINING OR
CONSULTATION CONCERNING THE IMPACT OF THE DECISION PRIOR TO
IMPLEMENTATION. THE COMPLAINANT DID IN FACT MEET WITH THE RESPONDENT ON
JUNE 4, 1976, BUT AFTER RESPONDENTS PLAN WAS EXPLAINED CONCERNING THE
AFFECTED EMPLOYEES PROSPECTIVE ASSIGNMENTS IT OFFERED NO ADVERSE
CRITICISM OR ALTERNATIVE SUGGESTIONS. THEREFORE, RESPONDENT DID NOT
REFUSE TO CONSULT, CONFER OR NEGOTIATE WITH RESPECT TO IMPACT OF ITS
DECISION IN VIOLATION OF SECTION 19(A)(6) OF THE EXECUTIVE ORDER NOR DID
THE RESPONDENTS ACTION CONSTITUTE AN IMPROPER BYPASS OR UNDERMINING OF
THE STATUS OF ITS EMPLOYEE'S COLLECTIVE BARGAINING REPRESENTATIVE IN
VIOLATION OF SECTIONS 19(A)(1) AND (6) OF THE ORDER. INTERNAL REVENUE
SERVICE, PHILADELPHIA SERVICE CENTER, A/SLMR NO. 771.
DESPITE THE RETENTION RIGHTS PROVIDED BY SECTION 12(B) OF THE ORDER,
/5/ MANAGEMENT CANNOT ESCAPE AN OBLIGATION TO BARGAIN WITH A UNION AS TO
PROCEDURES TO BE FOLLOWED IN DISESTABLISHING A CONGRESSIONAL
CORRESPONDENCE OFFICE UNIT WHEN EMPLOYEES ARE ADVERSELY AFFECTED OR
THEIR WORKING CONDITIONS CHANGED OR IMPAIRED. THE FEDERAL LABOR COUNCIL
STATED IN VETERANS ADMINISTRATION RESEARCH HOSPITAL, CHICAGO ILLINOIS,
74-A-31 THAT THE RESERVATION OF DECISION MAKING AND AGENCY AUTHORITY IS
NOT INTENDED TO BAR NEGOTIATIONS OF PROCEDURES TO THE EXTENT CONSONANT
WITH LAW AND REGULATIONS. /6/ THE ASSISTANT SECRETARY FOLLOWED AND
APPLIED THIS PRINCIPLE IN DEPARTMENT OF THE NAVY, BUREAU OF MEDICINE AND
SURGERY, GREAT LAKES NAVAL HOSPITAL, ILLINOIS, A/SLMR NO. 289. /7/ IN
THE LATTER CASE REDUCTION IN FORCE NOTICES HAD BEEN ISSUED BY THE AGENCY
WITHOUT NOTIFICATION TO THE UNION. WHILE CONCEDING THAT THE EMPLOYER
WAS NOT OBLIGED TO CONSULT ON THE RIF DECISION, IT WAS HELD THAT
CONSULTATION WAS MANDATORY AS TO THE PROCEDURES MANAGEMENT INTENDED TO
OBSERVE IN CHOOSING WHICH EMPLOYEES WERE TO BE SUBJECT TO THE RIF
ACTION.
IN THIS CASE, THE ANNOUNCEMENT OF THE DISESTABLISHMENT OF THE
CONGRESSIONAL CORRESPONDENCE OFFICE UNIT WAS GIVEN TO THE UNION AT ABOUT
THE SAME TIME AS ACTIVITY STAFF OFFICIALS WERE INFORMED; THE UNION WAS
ASKED FOR ITS COMMENTS AND SUGGESTIONS AND MET WITH THE RESPONDENT ON
JUNE 4, 1976, WHEN PROCEDURES AND IMPACT AS TO THE DECISION WERE
OUTLINED AND DISCUSSED. THE CONGRESSIONAL CORRESPONDENCE OFFICE WHICH
HAD BEEN ESTABLISHED IN APRIL 1974 TO HANDLE AN EMERGENCY SITUATION HAD
SERVED ITS PURPOSE AND ITS FUNCTIONS WERE TRANSFERRED BACK TO THE BRANCH
OFFICES THAT HAD HANDLED SUCH BEFORE THE DISASTROUS FIRE. ALL EMPLOYEES
IN THE UNIT WERE TRANSFERRED IN GRADE AND CONTINUE TO HANDLE
CONGRESSIONAL CORRESPONDENCE AS A PART OF THEIR CURRENT DUTIES. THEY
CONTINUE TO WORK THE SAME HOURS AND IN THE SAME BUILDING.
THE EVIDENCE ADDUCED AT THE HEARING AND THE DOCUMENTARY EXHIBITS
SUBMITTED, IN MY OPINION SUPPORT THE POSITION OF THE RESPONDENT THAT IT
AFFORDED THE COMPLAINANT THE OPPORTUNITY FOR MEANINGFUL EXPLORATION
REGARDING IMPACT AS TO DISESTABLISHMENT OF THE CONGRESSIONAL
CORRESPONDENCE OFFICE AND PROCEDURES THAT WERE TO BE FOLLOWED AS A
RESULT OF THE DECISION.
CONCLUSION
IN VIEW OF THE FOREGOING, I CONCLUDE THAT THE COMPLAINANT HAS NOT MET
ITS BURDEN OF PROVING BY A PREPONDERANCE OF THE EVIDENCE THAT THE
RESPONDENT VIOLATED SECTIONS 19(A)(1) AND (6) OF THE ORDER, AS ALLEGED.
RECOMMENDATION
UPON THE BASIS OF THE ABOVE FINDINGS AND CONCLUSIONS, I RECOMMEND
THAT THE COMPLAINT HEREIN AGAINST THE RESPONDENT BE DISMISSED.
RHEA M. BURROW
ADMINISTRATIVE LAW JUDGE
DATED: MAY 4, 1977
WASHINGTON, D.C.
/1/ THE VARIOUS BRANCHES INCLUDED THE AIR FORCE REFERENCE BRANCH,
ARMY REFERENCE BRANCH, NAVY REFERENCE BRANCH AND MILITARY OPERATIONS
BRANCH.
/2/ CERTAIN EXCEPTIONS INDICATED NOT RELEVANT TO THIS DECISION.
/3/ SEE RESPONDENT'S EXHIBIT 8 RELATING TO MEMORANDUM OF THE
CONSULTATION MEETING HELD ON JUNE 4, 1975. THE MEMORANDUM WAS NOT
REFERRED TO THE UNION BUT DETAIL OF EVENTS WERE BROUGHT OUT AT THE
HEARING. IN THIS CONNECTION SEE TRANSCRIPT PAGES 32, 33, 93, AND 95.
/4/ IMMIGRATION AND NATURALIZATION SERVICE, FLRC NO. 70-A-10 (APRIL
15, 1971); PLUM ISLAND ANIMAL DISEASE LABORATORY, FLRC NO. 71-A-11.
(JULY 9, 1971); GRIFFIS AIR FORCE BASE, FLRC NO. 71-A-30 (APRIL 19,
1973); NORTON AIR BASE A/SLMR 261 (APRIL 30, 1973); U.S. DEPARTMENT OF
INTERIOR, BUREAU OF INDIAN AFFAIRS, A/SLMR NO. 34 (JANUARY 9, 1974);
NEW MEXICO AIR NATIONAL GUARD, A/SLMR NO. 362 (FEBRUARY 28, 1974); ARMY
AIR FORCE EXCHANGE SERVICE, A/SLMR NO. 451 (OCTOBER 31, 1974); FEDERAL
RAILROAD ADMINISTRATION, A/SLMR NO. 418 (JULY 31, 1974).
/5/ SECTION 12(B) OF THE ORDER PROVIDES THAT:
MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN ACCORDANCE
WITH APPLICABLE LAWS AND
REGULATIONS (1) TO DIRECT EMPLOYEES OF THE AGENCY; (2) TO HIRE,
PROMOTE, TRANSFER, ASSIGN, AND
RETAIN EMPLOYEES IN POSITIONS WITHIN THE AGENCY, AND TO SUSPEND,
DEMOTE, DISCHARGE, OR TAKE
OTHER DISCIPLINARY ACTION AGAINST EMPLOYEES; (3) TO RELIEVE
EMPLOYEES FROM DUTIES BECAUSE OF
LACK OF WORK OR OTHER LEGITIMATE REASONS; (4) TO MAINTAIN THE
EFFICIENCY OF GOVERNMENT
OPERATIONS ENTRUSTED TO THEM; (5) TO DETERMINE THE METHODS, MEANS
AND PERSONNEL BY WHICH SUCH
OPERATIONS ARE TO BE CONDUCTED; AND (6) TO TAKE WHATEVER ACTION MAY
BE NECESSARY TO CARRY OUT
THE MISSION OF THE AGENCY IN SITUATIONS OF EMERGENCY.
/6/ SEE NAVAL PUBLIC WORKS CENTER, FLRC, 71-A-56.
/7/ ALSO SEE FEDERAL AVIATION ADMINISTRATION, NATIONAL AVIATION
FACILITIES, EXPERIMENTAL CENTER, ATLANTIC CITY, NEW JERSEY A/SLMR NO.
329.
7 A/SLMR 880; P. 663; CASE NO. 71-3800(CU); AUGUST 15, 1977.
AUGUST 15, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER CLARIFYING UNIT
OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
PUGET SOUND NAVAL SHIPYARD,
U.S. DEPARTMENT OF THE NAVY,
BREMERTON, WASHINGTON
A/SLMR NO. 880
THIS CASE INVOLVED A PETITION FOR CLARIFICATION OF UNIT (CU) FILED BY
THE INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS,
LOCAL 12, AFL-CIO SEEKING TO INCLUDE APPROXIMATELY 70 GS-12 PROJECT
ENGINEERS EMPLOYED IN THE ACTIVITY'S COMBAT SYSTEMS OFFICE, PLANNING
DEPARTMENT AND PRODUCTION DEPARTMENT IN ITS EXCLUSIVELY RECOGNIZED UNIT
OF PROFESSIONAL EMPLOYEES. THE ACTIVITY CONTENDED THAT THESE EMPLOYEES
ARE INELIGIBLE FOR INCLUSION IN THE UNIT INASMUCH AS THEY ARE
SUPERVISORS AND, IN ONE CASE, A MANAGEMENT OFFICIAL.
BASED ON THE RECORD DEVELOPED AT THE HEARING, THE ASSISTANT SECRETARY
CONCLUDED THAT CERTAIN OF THE DISPUTED EMPLOYEES ARE SUPERVISORS WITHIN
THE MEANING OF THE EXECUTIVE ORDER AND SHOULD BE EXCLUDED FROM THE
EXCLUSIVELY RECOGNIZED UNIT, AND CERTAIN OTHERS ARE NOT SUPERVISORS
WITHIN THE MEANING OF THE EXECUTIVE ORDER, AND SHOULD BE INCLUDED IN THE
UNIT. AS TO THE ONE EMPLOYEE ALLEGED TO BE A MANAGEMENT OFFICIAL, THE
ASSISTANT SECRETARY FOUND THE EVIDENCE INSUFFICIENT TO SUPPORT THIS
CONTENTION, AND CONCLUDED THAT THIS EMPLOYEE SHOULD ALSO BE INCLUDED IN
THE UNIT. ACCORDINGLY, THE ASSISTANT SECRETARY CLARIFIED THE UNIT
CONSISTENT WITH HIS FINDINGS.
PUGET SOUND NAVAL SHIPYARD,
U.S. DEPARTMENT OF THE NAVY,
BREMERTON, WASHINGTON
ACTIVITY
CASE NO. 71-3800(CU)
AND
INTERNATIONAL FEDERATION OF PROFESSIONAL
AND TECHNICAL ENGINEERS, LOCAL 12, AFL-CIO
PETITIONER
DECISION AND ORDER CLARIFYING UNIT
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER JOHN SCANLON. 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, INTERNATIONAL FEDERATION OF PROFESSIONAL AND
TECHNICAL ENGINEERS, LOCAL 12, AFL-CIO, HEREINAFTER REFERRED TO AS THE
UNION, IS THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF ALL GRADED
PROFESSIONAL EMPLOYEES IN THE FIELD OF ENGINEERING AND RELATED PHYSICAL
SCIENCES AT THE PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON. IN
THIS PROCEEDING THE UNION SEEKS TO CLARIFY THE STATUS OF APPROXIMATELY
70 GS-12 PROJECT ENGINEERS WHO WORK IN THE ACTIVITY'S COMBAT SYSTEMS
OFFICE, PRODUCTION DEPARTMENT AND DESIGN DIVISION OF THE PLANNING
DEPARTMENT. THE UNION CONTENDS THAT THE DISPUTED EMPLOYEES SHOULD BE
INCLUDED IN ITS EXCLUSIVELY RECOGNIZED UNIT, WHILE THE ACTIVITY TAKES
THE POSITION THAT THE DISPUTED PROJECT ENGINEERS ARE SUPERVISORS AND, IN
ONE CASE, A MANAGEMENT OFFICIAL AND, THUS, SHOULD BE EXCLUDED FROM THE
UNIT.
THE MISSION OF THE ACTIVITY IS TO PROVIDE LOGISTIC SUPPORT FOR
ASSIGNED SHIPS AND SERVICE CRAFT; TO PERFORM AUTHORIZED CONSTRUCTION,
CONVERSION, OVERHAUL, REPAIR, ALTERATIONS, DRYDOCKING, AND OUTFITTING OF
SURFACE SHIPS AND SUBMARINES; AND OTHER DUTIES AS ASSIGNED.
SUPERVISORY GENERAL ENGINEER, GS-801-12, TECHNICAL
PUBLICATIONS UNIT, CODE 244.82; SUPERVISORY PHYSICIST
(SOUND), GS-1310-12, ACOUSTIC RANGE BRANCH, CODE 246.1,
246.2, AND 246.3; SUPERVISORY GENERAL ENGINEER,
GS-801-12, ACOUSTIC RANGE BRANCH, CODE 246.4;
SUPERVISORY NAVAL ARCHITECT, GS-871-12, STABILITY AND
PRESERVATION BRANCH, CODE 250.1; SUPERVISORY NAVAL
ARCHITECT (ARRANGEMENTS), GS-871-12, ARRANGEMENT AND
ACCESS BRANCH, CODE 250.2; SUPERVISORY NAVAL ARCHITECT,
GS-871-12, STOWAGE AND FITTINGS BRANCH, CODE 250.3;
SUPERVISORY NAVAL ARCHITECT (STRUCTURES), GS-871-12,
STRUCTURAL (HULL) BRANCH, CODE 250.4; SUPERVISORY NAVAL
ARCHITECT (STRUCTURES), GS-871-12, STRUCTURAL (FDNS)
BRANCH, CODE 250.5
IT WAS STIPULATED BY BOTH PARTIES THAT GEORGE R. WING, A SUPERVISORY
NAVAL ARCHITECT, WAS SUFFICIENTLY SIMILARLY SITUATED TO OTHER GS-12
PROJECT ENGINEERS IN THE ABOVE CODES AND JOB TITLES AS TO MAKE ANY
DECISION MADE AS TO MR. WING'S SUPERVISORY STATUS APPLICABLE TO ALL THE
ABOVE LISTED GS-12 PROJECT ENGINEERS.
IN HIS CAPACITY AS A SUPERVISORY NAVAL ARCHITECT, MR. WING IS
RESPONSIBLE, AMONG OTHER THINGS, FOR THE PERFORMANCE OF HIS SECTION,
INCLUDING THE SUPERVISION OF HIS CREW. IN THIS REGARD, THE EVIDENCE
ESTABLISHES THAT WING ASSIGNS AND DIRECTS THE WORK OF HIS CREW UTILIZING
INDEPENDENT JUDGMENT AND THAT HE EFFECTIVELY RECOMMENDS QUALITY STEP
INCREASES FOR THE EMPLOYEES OF HIS SECTION.
UNDER THESE CIRCUMSTANCES, I FIND THAT WING, AND ALL THE OTHER GS-12
PROJECT ENGINEERS IN THE SUBJECT CLASSIFICATION, ARE SUPERVISORS AS
DEFINED IN SECTION 2(C) OF THE ORDER AND SHOULD BE EXCLUDED FROM THE
EXCLUSIVELY RECOGNIZED UNIT.
SUPERVISORY GENERAL ENGINEER, GS-801-12, MAIN PROPULSION
MACHINERY (PROPULSION MACHINERY AND FUELS) BRANCH, CODE
260.1; SUPERVISORY MECHANICAL ENGINEER, GS-830-12, MAIN
PROPULSION MACHINERY (PROPULSION MACHINERY AND FUELS)
BRANCH, CODE 260.1; SUPERVISORY MECHANICAL ENGINEER,
GS-830-12, MAIN PROPULSION MACHINERY (STEAM GENERATION)
BRANCH, CODE 260.2; SUPERVISORY MECHANICAL ENGINEER,
GS-830-12, AUXILIARY MACHINERY (HULL MACHINERY) BRANCH,
CODE 260.3; SUPERVISORY MECHANICAL ENGINEER, GS-830-12,
AUXILIARY MACHINERY (CATAPULT AND COMPRESSED GAS)
BRANCH, CODE 260.4; SUPERVISORY MECHANICAL ENGINEER,
GS-830-12, AUXILIARY MACHINERY (FLUID POWER) BRANCH,
CODE 260.5; SUPERVISORY MECHANICAL ENGINEER, GS-830-12,
SERVICE PIPING BRANCH, CODE 260.6; SUPERVISORY
MECHANICAL ENGINEER, GS-830-12, ENVIRONMENTAL SERVICE
BRANCH, CODE 260.7
IT WAS STIPULATED BY BOTH PARTIES THAT JAMES JOLIN, A SUPERVISORY
MECHANICAL ENGINEER, WAS SUFFICIENTLY SIMILARLY SITUATED TO OTHER GS-12
PROJECT ENGINEERS IN THE ABOVE CODES AND JOB TITLES AS TO MAKE ANY
DECISION AS TO MR. JOLIN'S SUPERVISORY STATUS APPLICABLE TO ALL THE
ABOVE LISTED GS-12 PROJECT ENGINEERS.
THE RECORD REVEALS THAT MR. JOLIN'S DUTIES INCLUDE, AMONG OTHER
THINGS, THE ANALYSIS AND ASSIGNMENT OF ENGINEERING WORK TO INDIVIDUAL
MEMBERS OF HIS CREW. IN THIS REGARD, THE EVIDENCE ESTABLISHES THAT
JOLIN ASSIGNS AND DIRECTS THE WORK OF HIS CREW UTILIZING INDEPENDENT
JUDGMENT.
UNDER THESE CIRCUMSTANCES, I FIND THAT JOLIN, AND ALL THE OTHER GS-12
PROJECT ENGINEERS IN THE SUBJECT CLASSIFICATIONS, ARE SUPERVISORS AS
DEFINED BY SECTION 2(C) OF THE ORDER AND SHOULD BE EXCLUDED FROM THE
EXCLUSIVELY RECOGNIZED UNIT.
SUPERVISORY ELECTRICAL ENGINEER, GS-850-12, ELECTRICAL
CONTROL SYSTEMS BRANCH, CODE 270.1; SUPERVISORY
ELECTRICAL ENGINEER, GS-850-12, ELECTRICAL APPLICATION
BRANCH, CODE 270.2; SUPERVISORY ELECTRONICS ENGINEER,
GS-855-12, ELECTRONICS APPLICATION BRANCH, CODE 270.3;
SUPERVISORY ELECTRICAL ENGINEER, GS-850-12, ELECTRICAL
INSTALLATION AND SPECIAL PROJECT BRANCH, CODE 270.4
IT WAS STIPULATED BY BOTH PARTIES THAT FRANK MAPES, A SUPERVISORY
ELECTRICAL ENGINEER, WAS SUFFICIENTLY SIMILARLY SITUATED TO OTHER GS-12
PROJECT ENGINEERS IN THE ABOVE CODES AND JOB TITLES SO AS TO MAKE ANY
DECISION MADE AS TO MR. MAPES' SUPERVISORY STATUS APPLICABLE TO ALL THE
ABOVE LISTED GS-12 PROJECT ENGINEERS.
IN THIS REGARD THE RECORD REVEALS THAT MR. MAPES ASSIGNS AND DIRECTS
THE WORK OF HIS CREW UTILIZING INDEPENDENT JUDGMENT AND THAT HE
EFFECTIVELY RECOMMENDS INCENTIVE AWARDS FOR HIS CREW.
UNDER THESE CIRCUMSTANCES, I FIND THAT MAPES, AND THE GS-12 PROJECT
ENGINEERS STIPULATED TO BE SIMILARLY SITUATED, ARE SUPERVISORS AS
DEFINED BY THE ORDER AND SHOULD BE EXCLUDED FROM THE EXCLUSIVELY
RECOGNIZED UNIT.
SUPERVISORY ELECTRICAL ENGINEER, GS-830-12, NEW SYSTEM
DEVELOPMENT DESIGN, ELECTRICAL DESIGN AND DOCUMENTATION
BRANCH, CODE 280.1 AND SUPERVISORY MECHANICAL ENGINEER,
GS-830-12, MECHANICAL DESIGN, PRODUCTION ENGINEERING AND
SYSTEM ANALYSIS BRANCH, CODE 280.2
IT WAS STIPULATED BY BOTH PARTIES THAT MICHAEL A. HATTAMER, A
SUPERVISORY MECHANICAL ENGINEER, GS-12, WAS SUFFICIENTLY SIMILARLY
SITUATED TO ALL OTHER PROJECT ENGINEERS IN THE AFOREMENTIONED JOB TITLES
AND CODES AS TO MAKE ANY DECISION MADE AS TO MR. HATTAMER'S SUPERVISORY
STATUS APPLICABLE TO ALL THE ABOVE-LISTED GS-12 PROJECT ENGINEERS. /1/
THE RECORD DOES NOT CONTAIN SUFFICIENT EVIDENCE TO ESTABLISH THAT MR.
HATTAMER, IN HIS ROLE AS A GS-12 PROJECT ENGINEER, HAD BEEN VESTED WITH
SUPERVISORY AUTHORITY. PARTICULARLY NOTED WAS THE FACT THAT MR.
HATTAMER DOES NOT POSSESS THE AUTHORITY TO HIRE, TRANSFER, SUSPEND,
LAYOFF, RECALL, DISCHARGE, PROMOTE, ADJUST GRIEVANCES OR EFFECTIVELY
DISCIPLINE EMPLOYEES. WHILE THE RECORD REVEALS THAT HE CAN RECOMMEND
SUCH ACTIONS, IT DOES NOT CLEARLY SHOW THAT SUCH RECOMMENDATIONS ARE
EFFECTIVE. FURTHER, THE RECORD REVEALS THAT MR. HATTAMER IS MONITORED
AND DIRECTED BY HIS IMMEDIATE SUPERVISOR IN HIS ASSIGNMENT AND DIRECTION
OF WORK TO HIS CREW, AND THAT SUCH DIRECTION AS HE DOES GIVE IS ROUTINE
IN NATURE, WITHIN ESTABLISHED GUIDELINES AND DICTATED BY ESTABLISHED
PROCEDURES.
UNDER THESE CIRCUMSTANCES, I FIND THAT MR. HATTAMER, AND ALL THE
OTHER GS-12 PROJECT ENGINEERS IN THE ABOVE SUBJECT CLASSIFICATIONS, ARE
NOT SUPERVISORS AS DEFINED BY SECTION 2(C) OF THE ORDER AND SHOULD BE
INCLUDED IN THE EXCLUSIVELY RECOGNIZED UNIT.
ELECTRONICS ENGINEER, GS-855-12, FBM FIRE CONTROL BRANCH,
CODE 191.21; SUPERVISORY ELECTRONICS ENGINEER,
GS-850-12, NAVIGATION NTD/COMM BRANCH, CODE 191.31;
SUPERVISORY ELECTRONICS ENGINEER, GS-855-12, ECM/COMM
BRANCH, CODE 191.33; SUPERVISORY ELECTRONICS ENGINEER,
GS-855-12, DIGITAL SYSTEMS BRANCH, CODE 191.51;
SUPERVISORY ELECTRONICS ENGINEER, GS-855-12, FIRE
CONTROL SYSTEMS BRANCH, CODE 191.52; SUPERVISORY GENERAL
ENGINEER, GS-801-12, SHIPS PLANNING AND COORDINATION
BRANCH, CODE 191.53
IT WAS STIPULATED BY BOTH PARTIES THAT HENRY HORN, ELECTRONICS
ENGINEER, GS-12, CODE 191.21, WAS SUFFICIENTLY SIMILARLY SITUATED TO
OTHER PROJECT ENGINEERS IN THE SUBJECT CLASSIFICATIONS SO THAT ANY
DECISION MADE AS TO MR. HORN'S SUPERVISORY STATUS WOULD BE APPLICABLE TO
ALL OF THEM.
THE RECORD REVEALS THAT MR. HORN'S DUTIES INCLUDE THE ANALYSIS AND
ASSIGNMENT OF ENGINEERING WORK TO INDIVIDUAL MEMBERS OF HIS CREW. THE
EVIDENCE ESTABLISHES THAT THESE ASSIGNMENTS AND THE CONCURRENT DIRECTION
OF CREW MEMBERS' PERFORMANCE REQUIRE THE USE OF INDEPENDENT JUDGMENT.
UNDER THESE CIRCUMSTANCES I FIND THAT MR. HORN, AND THE OTHER GS-12
PROJECT ENGINEERS IN THE SUBJECT CLASSIFICATION, ARE SUPERVISORS AS
DEFINED BY SECTION 2(C) OF THE ORDER AND SHOULD BE EXCLUDED FROM THE
EXCLUSIVELY RECOGNIZED UNIT.
SUPERVISORY INDUSTRIAL ENGINEER, GS-896-12, REFUELING
FACILITIES SECTION, CODE 381.1; SUPERVISORY INDUSTRIAL
ENGINEER, GS-896-12, SUPPORT SERVICES SECTION A, SUPPORT
SERVICES SECTION B, SUPPORT SERVICES SECTION C, CODES
381.2A, 381.2B, 381.2C; SUPERVISORY INDUSTRIAL ENGINEER,
GS-896-12, ADVANCE PLANNING AND ARRANGEMENTS SECTION,
CODE 381.3; SUPERVISORY INDUSTRIAL ENGINEER, GS-896-12,
METHODS AND PREVENTIVE MAINTENANCE SECTION, CODE 385.2;
SUPERVISORY INDUSTRIAL ENGINEER, GS-896-12, PRODUCTION
FACILITIES ENGINEERING SECTION, CODE 385.3; SUPERVISORY
INDUSTRIAL ENGINEER, GS-896-12, FACILITIES PROGRAM
MANAGEMENT SECTION, CODE 385.4; SUPERVISORY INDUSTRIAL
ENGINEER, GS-896-12, WATERFRONT SUPPORT ENGINEERING
SECTION, CODE 385.5; SUPERVISORY INDUSTRIAL ENGINEER,
GS-896-12, TRIDENT SUPPORT SECTION, CODE 386.1
IT WAS STIPULATED BY BOTH PARTIES THAT DAVID W. CURLEY, SUPERVISORY
INDUSTRIAL ENGINEER, GS-12, CODE 385.2, WAS SUFFICIENTLY SIMILARLY
SITUATED TO OTHER PROJECT ENGINEERS IN CODES 381.1-- 386.1 LISTED ABOVE
SO AS TO MAKE ANY DETERMINATION AS TO MR. CURLEY'S SUPERVISORY STATUS
APPLICABLE TO ALL.
THE RECORD REVEALS THAT MR. CURLEY'S DUTIES INCLUDE THE ANALYSIS AND
ASSIGNMENT OF ENGINEERING WORK TO INDIVIDUAL MEMBERS OF HIS CREW THROUGH
THE USE OF INDEPENDENT JUDGMENT AND THAT, IN ADDITION, HE IS THE FIRST
STEP SUPERVISORY AUTHORIZED TO RESOLVE GRIEVANCES UNDER THE PARTIES'
NEGOTIATED AGREEMENT.
UNDER THESE CIRCUMSTANCES, I SHALL EXCLUDE MR. CURLEY, AND THE OTHER
GS-12 PROJECT ENGINEERS STIPULATED TO BE SIMILARLY SITUATED, FROM THE
EXCLUSIVELY RECOGNIZED UNIT AS SUPERVISORS.
SUPERVISORY GENERAL ENGINEER, GS-801-12, TEST COORDINATION
DIVISION, CODE 365
TWO PERSONS TESTIFIED CONCERNING THIS POSITION: GEORGE HUTCHISON,
BRANCH HEAD (GS-13 OF THE SUBMARINE TEST PLANNING BRANCH, CODE 365.2,
AND MERLIN EMBREE, A GS-12 PROJECT ENGINEER WITHIN CODE 365.2. BOTH
PARTIES STIPULATED THAT MR. EMBREE WAS SUFFICIENTLY SIMILARLY SITUATED
TO OTHER PROJECT ENGINEERS IN CODE 365 SO THAT ANY DETERMINATION MADE AS
TO MR. EMBREE'S SUPERVISORY STATUS WOULD BE APPLICABLE TO ALL. IT WAS
FURTHER STIPULATED THAT THE TESTIMONY OF MR. EMBREE AND MR. HUTCHISON
WAS REPRESENTATIVE OF CODE 365.
UPON REVIEW OF THE RECORD WITH RESPECT TO THE ABOVE NOTED
CLASSIFICATION, WITH PARTICULAR EMPHASIS ON THE EVIDENCE DEVELOPED
CONCERNING THE ALLEGED SUPERVISORY STATUS OF MR. EMBREE, I FIND
INSUFFICIENT BASIS UPON WHICH TO MAKE A DETERMINATION OF THE ELIGIBILITY
OF EMPLOYEES CLASSIFIED AS SUPERVISORY GENERAL ENGINEERS, GS-12, TEST
COORDINATION DIVISION, CODE 365. UNDER THESE CIRCUMSTANCES, I MAKE NO
FINDING AS TO THE ELIGIBILITY OF THESE EMPLOYEES.
GENERAL ENGINEER, GS-801-12, QUALITY CONTROL PROGRAM
MANAGER, CODE 191.54
THE QUALITY CONTROL PROGRAM MANAGER, CODE 191.54 IS A POSITION
PRESENTLY FILLED BY ALVIN V. JENSEN. THE RECORD DISCLOSES THAT MR.
JENSEN'S ASSIGNMENTS COME DIRECTLY FROM THE COMBAT SYSTEMS
SUPERINTENDENT, A NAVAL OFFICER. AMONG OTHERS, MR. JENSEN'S FUNCTIONS
INCLUDE INSURING THE ACCURACY OF DATA COLLECTIONS, AND THE MONITORING OF
PROJECTS TO INSURE THE USE OF PROPER PROCEDURES AND SCHEDULED
COMPLETION. MR. JENSEN ALSO REPRESENTS THE COMBAT SYSTEMS OFFICE IN
MANAGERIAL MEETINGS AND FURNISHES THE COMBAT SYSTEM OFFICER'S
INTERPRETATION OF NEW NAVY REGULATIONS AND SUGGESTIONS AS TO THE BEST
AND MOST COST EFFECTIVE METHOD FOR THEIR IMPLEMENTATION. MR. JENSEN'S
DUTIES FURTHER ENTAIL THE PREPARATION OF THE COMBAT SYSTEMS PROCEDURES
MANUAL. THE RECORD DISCLOSES THAT JENSEN'S PROPOSALS AND
RECOMMENDATIONS REQUIRE THE INDEPENDENT EVALUATION AND APPROVAL OF HIS
COMBAT SYSTEMS OFFICER, AND THERE IS NO EVIDENCE TO ESTABLISH THAT
JENSEN'S RECOMMENDATIONS ARE EFFECTIVE IN THE FORMULATION OF THE COMBAT
SYSTEMS OFFICE'S POLICIES.
UNDER THESE CIRCUMSTANCES, I FIND THAT MR. JENSEN IS NOT A MANAGEMENT
OFFICIAL WITHIN THE MEANING OF THE ORDER. THE RECORD REVEALS THAT
JENSEN IS A HIGHLY TRAINED EMPLOYEE PROVIDING EXPERT RESOURCE
INFORMATION OR RECOMMENDATIONS WITH RESPECT TO POLICY, RATHER THAN AN
ACTIVE PARTICIPANT IN THE ULTIMATE DETERMINATION AS TO WHAT POLICY IN
FACT WILL BE. /2/ ACCORDINGLY, I FIND THAT THE EMPLOYEE IN THE SUBJECT
CLASSIFICATION SHOULD BE INCLUDED IN THE EXCLUSIVELY RECOGNIZED UNIT.
ORDER
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, IN
WHICH EXCLUSIVE RECOGNITION WAS GRANTED TO THE INTERNATIONAL FEDERATION
OF PROFESSIONAL AND TECHNICAL ENGINEERS, LOCAL 12, AFL-CIO, ON SEPTEMBER
18, 1974, BE, AND IT HEREBY IS, CLARIFIED BY INCLUDING IN SUCH UNIT
EMPLOYEES IN THE FOLLOWING CLASSIFICATIONS AND CODES:
SUPERVISORY ELECTRICAL ENGINEER, GS-830-12, NEW SYSTEM DEVELOPMENT
DESIGN ELECTRICAL DESIGN
AND DOCUMENTATION BRANCH, CODE 290.1; SUPERVISORY MECHANICAL
ENGINEER, GS-830-12, MECHANICAL
DESIGN, PRODUCTION ENGINEERING AND SYSTEM ANALYSIS BRANCH, CODE
280.2; AND GENERAL ENGINEER,
GS-801-12, QUALITY CONTROL PROGRAM MANAGER, CODE 191.54; AND BY
EXCLUDING FROM SUCH UNIT EMPLOYEES IN THE FOLLOWING CLASSIFICATIONS AND
CODES:
SUPERVISORY GENERAL ENGINEER, GS-801-12, TECHNICAL PUBLICATIONS UNIT,
CODE
244.82; SUPERVISORY PHYSICIST (SOUND), GS-1310-12, ACOUSTIC RANGE
BRANCH, CODES 246.1, 246.2,
AND 246.3; SUPERVISORY GENERAL ENGINEER, GS-801-12, ACOUSTIC RANGE
BRANCH, CODE
246.4; SUPERVISORY NAVAL ARCHITECT, GS-871-12, STABILITY AND
PRESERVATION BRANCH, CODE
250.1; SUPERVISORY NAVAL ARCHITECT (ARRANGEMENTS), GS-8T1-12,
ARRANGEMENTS AND ACCESS BRANCH,
CODE 250.2; SUPERVISORY NAVAL ARCHITECT, GS-871-12, STOWAGE AND
FITTING BRANCH, CODE
250.3; SUPERVISORY NAVAL ARCHITECT (STRUCTURES), GS-871-12,
STRUCTURAL (HULL) BRANCH, CODE
250.4; SUPERVISORY NAVAL ARCHITECT (STRUCTURES), GS-871-12,
STRUCTURAL (FDNS) BRANCH, CODE
250.5; SUPERVISORY GENERAL ENGINEER, GS-801-12, MAIN PROPULSION
MACHINERY (PROPULSION
MACHINERY AND FUELS) BRANCH, CODE 260.1; SUPERVISORY MECHANICAL
ENGINEER, GS-830-12, MAIN
PROPULSION MACHINERY (PROPULSION MACHINERY AND FUELS) BRANCH, CODE
260.1; SUPERVISORY
MECHANICAL ENGINEER, GS-830-12, MAIN PROPULSION MACHINERY (STEAM
GENERATION) BRANCH, CODE
260.2; SUPERVISORY MECHANICAL ENGINEER, GS-830-12, AUXILIARY
MACHINERY (HULL MACHINERY)
BRANCH, CODE 260.3; SUPERVISORY MECHANICAL ENGINEER, GS-830-12,
AUXILIARY MACHINERY (CATAPULT
AND COMPRESSED GAS) BRANCH, CODE 260.4; SUPERVISORY MECHANICAL
ENGINEER, GS-830-12, AUXILIARY
MACHINERY (FLUID POWER) BRANCH, CODE 260.5.; SUPERVISORY MECHANICAL
ENGINEER, GS-830-12,
SERVICE PIPING BRANCH CODE 260.6; SUPERVISORY MECHANICAL ENGINEER,
GS-830-12, ENVIRONMENTAL
SERVICES BRANCH, CODE 260.7; SUPERVISORY ELECTRICAL ENGINEER,
GS-850-12, ELECTRICAL CONTROL
SYSTEMS BRANCH, CODE 270.1; SUPERVISORY ELECTRICAL ENGINEER,
GS-850-12, ELECTRICAL APPLICATION
BRANCH, CODE 270.2; SUPERVISORY ELECTRONICS ENGINEER, GS-855-12,
ELECTRONICS APPLICATION
BRANCH, CODE 270.3; SUPERVISORY ELECTRICAL ENGINEER, GS-850-12,
ELECTRICAL INSTALLATION AND
SPECIAL PROJECT BRANCH, CODE 270.4; ELECTRONICS ENGINEER, GS-855-12,
FBM FIRE CONTROL BRANCH,
CODE 191.21, SUPERVISORY ELECTRONICS ENGINEER, GS-850-12, NAVIGATION
NTDS/COMM BRANCH, CODE
191.31; SUPERVISORY ELECTRONICS ENGINEER, GS-855-12, ECM/COMM
BRANCH, CODE 191.33; SUPERVISORY
ELECTRONICS ENGINEER, GS-855-12, DIGITAL SYSTEMS BRANCH, CODE 191.51;
SUPERVISORY ELECTRONICS
ENGINEER, GS-855-12, FIRE CONTROL SYSTEMS BRANCH, CODE 191.52;
SUPERVISORY GENERAL ENGINEER,
GS-801-12, SHIPS PLANNING AND COORDINATION BRANCH, CODE 191.53,
SUPERVISORY INDUSTRIAL
ENGINEER, GS-896-12, REFUELING FACILITIES SECTION, CODE 381.1;
SUPERVISORY INDUSTRIAL
ENGINEER, GS-896-12, SUPPORT SERVICES SECTION A, SUPPORT SERVICES
SECTION B, SUPPORT SERVICES
SECTION C, CODES 381.2A, 381.2B, 381.2C; SUPERVISORY INDUSTRIAL
ENGINEER, GS-896-12, ADVANCE
PLANNING AND ARRANGEMENTS SECTION, CODE 381.3; SUPERVISORY
INDUSTRIAL ENGINEER, GS-896-12,
METHODS AND PREVENTIVE MAINTENANCE SECTION, CODE 385.2; SUPERVISORY
INDUSTRIAL ENGINEER,
GS-896-12, PRODUCTION FACILITIES ENGINEERING SECTION, CODE 385.3;
SUPERVISORY INDUSTRIAL
ENGINEER, GS-896-12, FACILITIES PROGRAM MANAGEMENT SECTION, CODE
385.4; SUPERVISORY INDUSTRIAL
ENGINEER, GS-896-12, WATERFRONT SUPPORT ENGINEERING SECTION, CODE
385.5; SUPERVISORY
INDUSTRIAL ENGINEER, GS-896-12, TRIDENT SUPPORT SECTION, CODE 386.1.
DATED, WASHINGTON, D.C.
AUGUST 15, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ TESTIMONY REGARDING MR. HATTAMER'S DUTIES RELATED TO HIS DETAIL
TO A GS-13 PROJECT ENGINEER'S POSITION, AN ACKNOWLEDGED SUPERVISORY
POSITION, WAS NOT CONSIDERED IN THE EVALUATION OF HIS SUPERVISORY STATUS
AS A GS-12
/2/ CF. DEPARTMENT OF THE AIR FORCE, ARNOLD ENGINEERING CENTER, AIR
FORCE SYSTEMS COMMAND, ARNOLD AIR FORCE STATION, TENNESSEE, A/SLMR NO.
135.
7 A/SLMR 879; P. 658; CASE NO. 64-2988(CU); AUGUST 10, 1977.
AUGUST 10, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER CLARIFYING UNIT
OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
U.S. DEPARTMENT OF AGRICULTURE
FOREST SERVICE, OUACHITA NATIONAL
FOREST, HOT SPRINGS, ARKANSAS
A/SLMR NO. 879
THIS CASE INVOLVED A PETITION FOR CLARIFICATION OF UNIT (CU) FILED
JOINTLY BY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 796
(NFFE) AND THE ACTIVITY SEEKING TO CLARIFY THE STATUS OF VARIOUS JOB
CLASSIFICATIONS LOCATED IN AN EXCLUSIVE BARGAINING UNIT AT THE OUACHITA
NATIONAL FOREST. THE ACTIVITY TOOK THE POSITION THAT EMPLOYEES IN THE
VARIOUS CLASSIFICATIONS WERE EITHER SUPERVISORS, CONFIDENTIAL EMPLOYEES,
OR ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN PURELY CLERICAL
CAPACITY. THE NFFE CONTENDED, ON THE OTHER HAND, THAT ALL OF THE
CLASSIFICATIONS SHOULD BE INCLUDED IN THE UNIT.
THE ASSISTANT SECRETARY FOUND THAT EMPLOYEES IN THE FOLLOWING
CLASSIFICATIONS WERE SUPERVISORS WITHIN THE MEANING OF THE ORDER AND
SHOULD BE EXCLUDED FROM THE UNIT: CLERK (TYPING), GS-4 (TECHNICAL
SERVICES); COMPUTER OPERATOR, GS-6; CRIMINAL INVESTIGATOR, GS-11;
SUPERVISORY FORESTRY TECHNICIAN, GS-11 (TREE IMPROVEMENT); AND
SUPERVISORY SURVEYING TECHNICIAN GS-9. IN THIS REGARD, HE NOTED THAT
SAID EMPLOYEES EITHER HAD THE AUTHORITY TO HIRE, PROMOTE, DISCIPLINE
AND/OR REWARD SUBORDINATE EMPLOYEES, OR TO EFFECTIVELY RECOMMEND SUCH
ACTION. HE ALSO FOUND THAT EMPLOYEES IN THE CLERK (TYPING), GS-5
(DISTRICT CLERK) AND THE CLERK-TYPIST), GS-2 (MANAGEMENT SERVICES)
CLASSIFICATION SHOULD BE EXCLUDED FROM THE EXCLUSIVELY RECOGNIZED UNIT
AS CONFIDENTIAL EMPLOYEES BASED ON THEIR RELATIONSHIP WITH THE DISTRICT
RANGER OR THE DIRECTOR OF MANAGEMENT SERVICES WHO ARE RESPONSIBLE FOR
EITHER FORMULATING OR EFFECTUATING MANAGEMENT POLICIES IN THE FIELD OF
LABOR RELATIONS.
AS TO EMPLOYEES IN THE REMAINING DISPUTED CLASSIFICATIONS, THE
ASSISTANT SECRETARY FOUND THE EVIDENCE INSUFFICIENT TO ESTABLISH THAT
THEY WERE EITHER SUPERVISORY OR CONFIDENTIAL EMPLOYEES. ACCORDINGLY, HE
ORDERED THAT THE UNIT BE CLARIFIED CONSISTENT WITH HIS FINDINGS.
U.S. DEPARTMENT OF AGRICULTURE,
FOREST SERVICE, OUACHITA NATIONAL
FOREST, HOT SPRINGS, ARKANSAS
ACTIVITY-PETITIONER
CASE NO. 64-2988(CU)
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 796
LABOR ORGANIZATION-PETITIONER
DECISION AND ORDER CLARIFYING UNIT
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 A BRIEF FILED BY THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 796, HEREIN CALLED NFFE,
/1/ THE ASSISTANT SECRETARY FINDS:
IN THE INSTANT JOINT-PETITION THE ACTIVITY AND THE NFFE SEEK TO
CLARIFY THE STATUS OF EMPLOYEES IN 18 JOB CLASSIFICATIONS. THE ACTIVITY
TAKES THE POSITION THAT EMPLOYEES IN THE DISPUTED JOB CLASSIFICATIONS
ARE CONFIDENTIAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY CLERICAL CAPACITY, OR SUPERVISORS WITHIN THE
MEANING OF SECTION 2(C) OF THE ORDER AND, THEREFORE, SHOULD BE EXCLUDED
FROM THE EXCLUSIVELY RECOGNIZED UNIT. THE NFFE, ON THE OTHER HAND,
CONTENDS THAT THERE IS NO BASIS FOR EXCLUDING THE EMPLOYEES IN THE
CLASSIFICATIONS IN QUESTION FROM ITS EXCLUSIVELY RECOGNIZED UNIT. /2/
THE RECORD REVEALS THAT THE NFFE WAS CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE FOR NONPROFESSIONAL EMPLOYEES OF THE OUACHITA NATIONAL
FOREST ON OCTOBER 31, 1974. /3/ THE MISSION OF THE FOREST SERVICE IS TO
STIMULATE THE EFFECTIVE MANAGEMENT OF FORESTED LAND OF STATE AND PUBLIC
OWNERSHIP. THE NATIONAL FOREST SYSTEM IS HEADED BY THE CHIEF OF THE
FOREST SERVICE AND IS ORGANIZED INTO VARIOUS REGIONS EACH HEADED BY A
REGIONAL FORESTER. THE SOUTHEAST REGION (REGION 8), HEADQUARTERED IN
ATLANTA, GEORGIA, ENCOMPASSES 15 NATIONAL FORESTS, AMONG WHICH IS THE
ACTIVITY, WHICH HAS APPROXIMATELY 500 PERMANENT AND TEMPORARY EMPLOYEES
AND IS HEADED BY A FOREST SUPERVISOR WHO IS DIRECTLY RESPONSIBLE TO THE
REGIONAL FORESTER. UNDER THE FOREST SUPERVISOR IS A HEADQUARTERS STAFF
AND 12 RANGER DISTRICTS, EACH OF WHICH IS HEADED BY A FOREST RANGER.
THE HEADQUARTERS STAFF IS ORGANIZED INTO MANAGEMENT SERVICES AND
TECHNICAL SERVICES.
THE RECORD REVEALS THAT THE FOREST SUPERVISOR HAS RETAINED HIRING
AUTHORITY FOR PERMANENT EMPLOYEES, AND THE DISTRICT RANGERS HAVE BEEN
DELEGATED HIRING AUTHORITY FOR TEMPORARY AND SEASONAL EMPLOYEES. /4/
THE PERSONNEL RECORDS FOR ALL PERSONNEL ARE MAINTAINED IN THE
HEADQUARTERS OF THE HIRING AUTHORITY INVOLVED. WITH REGARD TO LABOR
RELATIONS AUTHORITY, STEP 2 OF THE PARTIES' NEGOTIATED GRIEVANCE
PROCEDURE IS THE DISTRICT RANGER LEVEL, AND STEP 3 OF THE NEGOTIATED
GRIEVANCE PROCEDURE IS THE FOREST SUPERVISOR LEVEL.
CLERK (TYPING), GS-4 (TECHNICAL SERVICES); COMPUTER
OPERATOR, GS-6; CRIMINAL INVESTIGATOR, GS-11;
SUPERVISORY FORESTRY TECHNICIAN, GS-11 (TREE
IMPROVEMENT); SUPERVISORY SURVEYING TECHNICIAN, GS-9
THE ACTIVITY CONTENDS THAT EMPLOYEES IN THESE CLASSIFICATIONS SHOULD
BE EXCLUDED FROM THE BARGAINING UNIT AS SUPERVISORS WITHIN THE MEANING
OF SECTION 2(C) OF THE ORDER.
CLERK (TYPING), GS-4. THIS POSITION, CURRENTLY OCCUPIED BY CAROL
ENNIS, IS LOCATED IN THE DIVISION OF TECHNICAL SERVICES. THE RECORD
REVEALS THAT ENNIS IS RESPONSIBLE FOR PROVIDING CLERICAL AND
ADMINISTRATIVE SUPPORT TO THE DIRECTOR OF TECHNICAL SERVICES AND HAS ONE
PERMANENT EMPLOYEE UNDER HER DIRECTION. THE EVIDENCE ESTABLISHES THAT
ENNIS EFFECTIVELY RECOMMENDED THE HIRING OF HER SUBORDINATE AND THAT THE
EXERCISE OF SUCH AUTHORITY REQUIRED THE USE OF INDEPENDENT JUDGMENT.
COMPUTER OPERATOR, GS-6. THIS POSITION, CURRENTLY OCCUPIED BY BESSIE
REARDON, IS LOCATED IN THE DIVISION OF MANAGEMENT SERVICES. THE RECORD
REVEALS THAT REARDON IS RESPONSIBLE FOR OPERATING THE ACTIVITY'S
COMPUTER TERMINAL AND RELATED PERIPHERAL EQUIPMENT, COORDINATING THE USE
OF THE TERMINAL, AND HAS TWO PERMANENT EMPLOYEES UNDER HER DIRECTION.
THE RECORD ALSO REVEALS THAT THE AUTHORITY EXERCISED BY REARDON IN
EFFECTIVELY RECOMMENDING THE HIRING AND SUBSEQUENT PROMOTION OF HER
SUBORDINATES REQUIRED THE USE OF INDEPENDENT JUDGMENT.
CRIMINAL INVESTIGATOR, GS-11. THIS POSITION, CURRENTLY OCCUPIED BY
EDWIN OUTLAW, IS LOCATED IN THE DIVISION OF MANAGEMENT SERVICES. THE
RECORD REVEALS THAT OUTLAW SERVES AS THE PRIMARY INVESTIGATOR FOR THE
OUACHITA AND THE OZARK-ST. FRANCIS NATIONAL FORESTS IN CRIMINAL CASES
INVOLVING THE APPLICATION OF FIRE, TIMBER, RANGE AND OTHER RESOURCES USE
REGULATIONS AND LAWS. FURTHER, HE OCCASIONALLY CONDUCTS INVESTIGATIONS
OF CIVIL CLAIMS AND HAS ONE PERMANENT EMPLOYEE UNDER HIS DIRECTION. THE
EVIDENCE ESTABLISHES THAT HE EFFECTIVELY RECOMMENDED THAT HIS
SUBORDINATE BE RETAINED AT THE END OF HER PROBATIONARY PERIOD AND,
SUBSEQUENTLY, EFFECTIVELY RECOMMENDED THAT SHE BE PROMOTED TO A HIGHER
GRADE.
SUPERVISORY FORESTRY TECHNICIAN, GS-11 (TREE IMPROVEMENT). THIS
POSITION, CURRENTLY OCCUPIED BY JAMES MCMAHEN, IS LOCATED IN THE WOMBLE
RANGER DISTRICT. THE RECORD REVEALS THAT MCMAHEN SERVES AS THE SEED
ORCHARD MANAGER AND IS RESPONSIBLE FOR PLANNING THE COLLECTION AND
GRAFTING OF SUPERIOR TREE SCIONS, OUTPLANTING, SPRAYING AND WEEDING OF
RAMETS, MAINTAINING COVER TO PREVENT EROSION, CONDUCTING CONTROLLED
POLLINATION, AND COLLECTING CONES. HE HAS THREE PERMANENT EMPLOYEES
WORKING UNDER HIS DIRECTION, AND THE EVIDENCE ESTABLISHES THAT HE
EFFECTIVELY RECOMMENDS THE HIRING AND PROMOTION OF HIS SUBORDINATES.
SUPERVISORY SURVEYING TECHNICIAN, GS-9. THESE POSITIONS ARE LOCATED
IN THE FOURCHE AND JESSIEVILLE RANGER DISTRICTS. THE INCUMBENTS ARE
PRIMARILY RESPONSIBLE FOR PROVIDING TECHNICAL GUIDANCE FOR LOCATING,
MONUMENTING, RECORDING, AND MAINTAINING PROPERTY BOUNDARIES. EACH HAS
EITHER THREE OR FOUR PERMANENT EMPLOYEES UNDER HIS DIRECTION. THE
RECORD REVEALS THAT THE INCUMBENTS IN THIS CLASSIFICATION POSSESS THE
AUTHORITY TO HIRE OR TO EFFECTIVELY RECOMMEND HIRING, DISCIPLINING AND
REWARDING OF SUBORDINATES AND THAT THE EXERCISE OF SUCH AUTHORITY
REQUIRES THE USE OF INDEPENDENT JUDGMENT.
BASED ON ALL THE ABOVE CIRCUMSTANCES, I FIND THAT EMPLOYEES IN THE
ABOVE-NOTED CLASSIFICATIONS ARE SUPERVISORS WITHIN THE MEANING OF
SECTION 2(C) OF THE ORDER. THUS, THE EVIDENCE ESTABLISHES THAT THEY
POSSESS THE AUTHORITY TO HIRE, PROMOTE, DISCIPLINE AND/OR REWARD
SUBORDINATE EMPLOYEES, OR TO EFFECTIVELY RECOMMEND SUCH ACTION.
ACCORDINGLY, I FIND THAT EMPLOYEES CLASSIFIED AS CLERK (TYPIST), GS-4
(TECHNICAL SERVICES); COMPUTER OPERATOR, GS-6; CRIMINAL INVESTIGATOR,
GS-11; SUPERVISORY FORESTRY TECHNICIAN, GS-11 (TREE IMPROVEMENT); AND
SUPERVISORY SURVEYING TECHNICIAN, GS-9, SHOULD BE EXCLUDED FROM THE
EXCLUSIVELY RECOGNIZED UNIT.
CIVIL ENGINEERING TECHNICIAN, GS-7; FORESTRY TECHNICIAN,
GS-5 (TIMBER STAND IMPROVEMENT); FORESTRY TECHNICIAN,
GS-6 (TIMBER MARKING); FORESTRY TECHNICIAN, GS-7 (TIMBER
MARKING AND SALES ADMINISTRATION); FORESTRY TECHNICIAN,
GS-7 (RECREATION AREA MAINTENANCE); FORESTRY TECHNICIAN,
GS-9 (TIMBER SALES ADMINISTRATION); SUPERVISORY FORESTRY
TECHNICIAN, GS-5 (SALE AREA BETTERMENT); SUPERVISORY
FORESTRY TECHNICIAN, GS-6 (SALE AREA BETTERMENT);
SUPERVISORY FORESTRY TECHNICIAN, GS-11 (FIRE
MANAGEMENT); SURVEYING TECHNICIAN, GS-7
THE ACTIVITY CONTENDS THAT EMPLOYEES IN THESE CLASSIFICATIONS SHOULD
BE EXCLUDED FROM THE BARGAINING UNIT ON THE BASIS THAT THEY ARE
SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER.
CIVIL ENGINEERING TECHNICIAN, GS-7. /5/ THESE POSITIONS ARE LOCATED
IN 6 OF THE 12 RANGER DISTRICTS, AND THE INCUMBENTS ARE PRIMARILY
RESPONSIBLE FOR PROVIDING TECHNICAL ENGINEERING ASSISTANCE FOR ALL
ASPECTS OF SURVEYING, CONSTRUCTION, AND MAINTENANCE OF IMPROVEMENTS,
INCLUDING BUILDINGS, ROADS, AND SIGNS. THEY EACH HAVE THREE PERMANENT
EMPLOYEES AND OCCASIONAL TEMPORARY EMPLOYEES WORKING UNDER THEIR
DIRECTION. WHILE EMPLOYEES IN THIS CLASSIFICATION HAVE AUTHORITY TO
RECOMMEND HIRING SUBORDINATE EMPLOYEES, THERE IS NO EVIDENCE THAT SUCH
RECOMMENDATIONS ARE EFFECTIVE. THE RECORD REVEALS THAT EMPLOYEES IN
THIS CLASSIFICATION ROUTINELY APPROVE ANNUAL LEAVE AND TRAINING AND MAKE
ROUTINE PERFORMANCE EVALUATIONS OF EMPLOYEES UNDER THEIR DIRECTION. THE
RECORD ALSO DISCLOSES THAT SUCH DIRECTION AS MAY BE GIVEN BY THE
INCUMBENTS TO OTHER EMPLOYEES DOES NOT REQUIRE THE USE OF INDEPENDENT
JUDGMENT.
FORESTRY TECHNICIAN, GS-5 (TIMBER STAND IMPROVEMENT). /6/ THIS
POSITION, OCCUPIED BY GUY MEEK, IS LOCATED IN THE TIAK RANGER DISTRICT.
MEEK'S DUTIES PRIMARILY INVOLVE TREE PLANTING, PEST CONTROL, CONE
COLLECTION AND MAKING REGENERATION CHECKS OF AREAS PREVIOUSLY PLANTED.
THE TIAK DISTRICT ORGANIZATION CHART INDICATES THAT MEEK HAS ONE
PERMANENT SUBORDINATE. THE POSITION DESCRIPTION DISCLOSES NO
SUPERVISORY AUTHORITY AS SET FORTH IN SECTION 2(C) OF THE ORDER.
FORESTRY TECHNICIAN, GS-6 (TIMBER MARKING). /7/ THESE POSITIONS ARE
LOCATED IN 7 OF THE 12 RANGER DISTRICTS, AND THE INCUMBENTS ARE
PRIMARILY RESPONSIBLE FOR SELECTING AND MARKING TIMBER FOR CUTTING.
EMPLOYEES IN THIS CLASSIFICATION EACH DIRECT FOUR PERMANENT EMPLOYEES IN
ADDITION TO OCCASIONAL SEASONAL AND TEMPORARY EMPLOYEES. ALTHOUGH THE
INCUMBENTS IN THIS CLASSIFICATION MAKE RECOMMENDATIONS CONCERNING THE
HIRING OF TEMPORARY AND SEASONAL PERSONNEL, THE EVIDENCE ESTABLISHES
THAT SUCH RECOMMENDATIONS ARE NOT EFFECTIVE. THE RECORD REVEALS THAT
THE INCUMBENTS ARE AUTHORIZED TO ROUTINELY APPROVE ANNUAL LEAVE AND
TRAINING AND MAKE ROUTINE PERFORMANCE EVALUATIONS OF EMPLOYEES UNDER
THEIR DIRECTION. HOWEVER, THE RECORD FURTHER REVEALS THAT SUCH
DIRECTION AS MAY BE GIVEN TO OTHER EMPLOYEES DOES NOT REQUIRE THE USE OF
INDEPENDENT JUDGMENT.
FORESTRY TECHNICIAN, GS-7 (TIMBER MARKING AND SALES ADMINISTRATION.
/8/ THESE POSITIONS ARE LOCATED IN 4 OF THE 12 RANGER DISTRICTS. THE
INCUMBENTS' TIMBER MARKING RESPONSIBILITIES ARE THE SAME AS THOSE OF THE
FORESTRY TECHNICIAN, GS-6 (TIMBER MARKING) NOTED ABOVE. IN ADDITION,
THEY ASSIST IN ADMINISTERING THE TIMBER SALES PROGRAM. THE RECORD
REVEALS THAT THE INCUMBENTS EACH DIRECT THREE PERMANENT EMPLOYEES.
ALTHOUGH THE INCUMBENTS ARE AUTHORIZED TO RECOMMEND REWARDS FOR
EMPLOYEES UNDER THEIR DIRECTION, THERE IS NO EVIDENCE THAT SUCH
RECOMMENDATIONS ARE EFFECTIVE, OR THAT SUCH DIRECTION AS MAY BE GIVEN TO
OTHER EMPLOYEES REQUIRES THE USE OF INDEPENDENT JUDGMENT.
FORESTRY TECHNICIAN, GS-7 (RECREATION AREA MAINTENANCE). THIS
POSITION, OCCUPIED BY CLOVIS PRICE, IS LOCATED IN THE WOMBLE RANGER
DISTRICT. PRICE'S DUTIES FROM JUNE THROUGH AUGUST INVOLVE INSPECTING
AND MAINTAINING THE RECREATION AREAS OF THE DISTRICT. DURING THE WINTER
MONTHS, HE IS ASSIGNED TO TIMBER MARKING OR TREE PLANTING ACTIVITIES.
HE HAS TWO PERMANENT EMPLOYEES UNDER HIS DIRECTION ONLY FOR THE SUMMER
MONTHS. THE RECORD REVEALS THAT, ALTHOUGH PRICE MAY ROUTINELY DIRECT
OTHER EMPLOYEES, SUCH DIRECTION AS MAY BE GIVEN DOES NOT REQUIRE THE USE
OF INDEPENDENT JUDGMENT.
FORESTRY TECHNICIAN, GS-9 (TIMBER SALES ADMINISTRATIVE). THIS
POSITION, OCCUPIED BY JEAN HAWKINS, IS LOCATED IN THE FOURCHE RANGER
DISTRICT. THE RECORD REVEALS THAT HAWKINS IS PRIMARILY RESPONSIBLE FOR
ADMINISTERING THE TIMBER SALES PROGRAM AND THAT HE DIRECTS ONE PERMANENT
EMPLOYEE. HAWKINS IS AUTHORIZED TO ROUTINELY APPROVE ANNUAL LEAVE AND
TRAINING AND TO MAKE ROUTINE PERFORMANCE EVALUATIONS OF THE SUBORDINATE
EMPLOYEE. HOWEVER, THE EVIDENCE ESTABLISHES THAT SUCH DIRECTION AS MAY
BE GIVEN TO HIS SUBORDINATE EMPLOYEE DOES NOT REQUIRE THE USE OF
INDEPENDENT JUDGMENT.
SUPERVISORY FORESTRY TECHNICIAN, GS-5 (SALES AREA BETTERMENT). /9/
THESE POSITIONS ARE LOCATED IN 5 OF 12 RANGER DISTRICTS, AND THE
INCUMBENTS ARE PRIMARILY RESPONSIBLE FOR THE RELEASE OF DESIRABLE
REPRODUCTION, REGENERATION RELEASE, PRUNING OF CROP TREES, SITE
PREPARATION, PRESCRIBED BURNING, PRECOMMERCIAL THINNING, PLANTING, AND
SEEDING OF THE FOREST. EMPLOYEES IN THIS CLASSIFICATION EACH DIRECT
EITHER 4 OR 5 PERMANENT EMPLOYEES IN ADDITION TO OCCASIONAL SEASONAL
EMPLOYEES. WHILE EMPLOYEES IN THIS CLASSIFICATION HAVE AUTHORITY TO
RECOMMEND HIRING CERTAIN EMPLOYEES, THERE IS NO EVIDENCE THAT SUCH
RECOMMENDATIONS ARE EFFECTIVE. THE RECORD DISCLOSES THAT THE INCUMBENTS
ARE AUTHORIZED TO ROUTINELY APPROVE LEAVE AND TRAINING AND MAKE ROUTINE
PERFORMANCE EVALUATIONS OF EMPLOYEES UNDER THEIR DIRECTION. HOWEVER,
THE RECORD FURTHER DISCLOSES THAT SUCH DIRECTION AS MAY BE GIVEN TO
OTHER EMPLOYEES DOES NOT REQUIRE THE USE OF INDEPENDENT JUDGMENT.
SUPERVISORY FORESTRY TECHNICIAN, GS-6 (SALE AREA BETTERMENT). /10/
THESE POSITIONS ARE LOCATED IN 3 OF THE 12 RANGER DISTRICTS, AND THE
INCUMBENTS' RESPONSIBILITIES ARE ESSENTIALLY THE SAME AS THOSE OF THE
SUPERVISORY FORESTRY TECHNICIAN, GS-5 (SALE AREA BETTERMENT) NOTED
ABOVE. THE INCUMBENTS EACH DIRECT THREE PERMANENT EMPLOYEES IN ADDITION
TO SEVERAL TEMPORARY EMPLOYEES. WHILE THE INCUMBENTS IN THIS
CLASSIFICATION MAKE WORK PRIORITY RECOMMENDATIONS, THERE IS NO EVIDENCE
THAT SUCH RECOMMENDATIONS ARE EFFECTIVE. THE RECORD REVEALS THAT THE
INCUMBENTS ARE AUTHORIZED TO ROUTINELY APPROVE ANNUAL LEAVE AND TRAINING
AND MAKE ROUTINE PERFORMANCE EVALUATIONS OF EMPLOYEES UNDER THEIR
DIRECTION. HOWEVER, THE RECORD FURTHER REVEALS THAT SUCH DIRECTION AS
MAY BE GIVEN TO OTHER EMPLOYEES DOES NOT REQUIRE THE USE OF INDEPENDENT
JUDGMENT.
SUPERVISORY FORESTRY TECHNICIAN, GS-11 (FIRE MANAGEMENT). THIS
POSITION, OCUPIED BY BOBBY MCLANE, IS LOCATED IN THE DIVISION OF
TECHNICAL SERVICES. MCLANE SERVES AS A TECHNICAL ASSISTANT TO THE FIRE
MANAGEMENT STAFF OFFICER AND PERFORMS OPERATIONAL DUTIES ASSOCIATED WITH
THE EXECUTION OF THE ACTIVITY'S FIRE MANAGEMENT PROGRAM. THE THREE
PERMANENT EMPLOYEES WHO WORK UNDER MCLANE ARE NOT PHYSICALLY LOCATED IN
THE SAME OFFICE AS MCLANE. THE RECORD REVEALS THAT MCLANE IS AUTHORIZED
TO ROUTINELY APPROVE ANNUAL LEAVE AND TRAINING IN THE COURSE OF
DIRECTING OTHER EMPLOYEES. HOWEVER, THE RECORD ALSO REVEALS THAT SUCH
DIRECTION AS MAY BE GIVEN BY THE INCUMBENT TO OTHER EMPLOYEES DOES NOT
REQUIRE THE USE OF INDEPENDENT JUDGMENT.
SURVEYING TECHNICIAN, GS-7. THIS POSITION, OCCUPIED BY HENRY BROWN,
IS LOCATED IN THE MENA RANGER DISTRICT. FOR EIGHT MONTHS OF THE YEAR,
BROWN'S DUTIES PRIMARILY INVOLVE LOCATING AND ESTABLISHING PROPERTY
BOUNDARIES AND MAINTAINING A LAND CORNER CARD FILE. FROM MAY THROUGH
AUGUST, BROWN IS RESPONSIBLE FOR THE MANAGEMENT OF THE DISTRICT'S
RECREATION AREA. WHILE ENGAGED IN SURVEYING, HE DIRECTS THREE PERMANENT
EMPLOYEES, WHO ARE BORROWED FROM THE TIMBER STAND IMPROVEMENT SECTION.
DURING THE SUMMER MONTHS, BROWN DIRECTS TWO LIFEGUARDS. THE EVIDENCE
DOES NOT ESTABLISH THAT BROWN EXERCISES EFFECTIVE AUTHORITY TO RECOMMEND
THE PROMOTION OR DISCHARGE OF EMPLOYEES UNDER HIS DIRECTION. WHILE
BROWN DIRECTS OTHER EMPLOYEES, THE RECORD DOES NOT REVEAL THAT SUCH
DIRECTION, AS MAY BE GIVEN, REQUIRES THE USE OF INDEPENDENT JUDGMENT.
BASED ON ALL OF THE FOREGOING CIRCUMSTANCES, I CONCLUDE THAT
EMPLOYEES IN THE ABOVE NOTED CLASSIFICATIONS ARE NOT SUPERVISORS WITHIN
THE MEANING OF SECTION 2(C) OF THE ORDER. THUS, THE EVIDENCE
ESTABLISHES THAT SUCH EMPLOYEES DO NOT POSSESS, OR EXERCISE THE
AUTHORITY TO HIRE, TRANSFER, SUSPEND, LAY OFF, RECALL, PROMOTE,
DISCHARGE, ASSIGN, REWARD, OR DISCIPLINE OTHER EMPLOYEES, OR TO ADJUST
THEIR GRIEVANCES, OR TO EFFECTIVELY RECOMMEND SUCH ACTIONS. MOREOVER,
THE AUTHORITY EXERCISED BY THESE EMPLOYEES IN DIRECTING SUBORDINATES IS
OF A ROUTINE NATURE AND DOES NOT REQUIRE THE USE OF INDEPENDENT
JUDGMENT. ACCORDINGLY, I FIND THAT EMPLOYEES CLASSIFIED AS CIVIL
ENGINEERING TECHNICIAN, GS-7; FORESTRY TECHNICIAN, GS-5 (TIMBER STAND
IMPROVEMENT); FORESTRY TECHNICIAN, GS-6 (TIMBER MARKING); FORESTRY
TECHNICIAN, GS-7 (TIMBER MARKING AND SALES ADMINISTRATION); FORESTRY
TECHNICIAN, GS-7 (RECREATION AREA MANAGEMENT); FORESTRY TECHNICIAN,
GS-9 (TIMBER SALES ADMINISTRATION); SUPERVISORY FORESTRY TECHNICIAN,
GS-5 (SALE AREA BETTERMENT); SUPERVISORY FORESTRY TECHNICIAN, GS-6
(SALE AREA BETTERMENT); SUPERVISORY FORESTRY TECHNICIAN, GS-11 (FIRE
MANAGEMENT); SURVEYING TECHNICIAN, GS-7, /11/ SHOULD BE INCLUDED IN THE
UNIT.
CLERK (TYPING), GS-5 (DISTRICT CLERK); CLERK-TYPIST, GS-2
(MANAGEMENT SERVICES)
THE ACTIVITY CONTENDS THAT EMPLOYEES IN THESE CLASSIFICATIONS SHOULD
BE EXCLUDED FROM THE BARGAINING UNIT AS EITHER SUPERVISORY EMPLOYEES,
CONFIDENTIAL EMPLOYEES OR EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY.
CLERK (TYPING), GS-5 (DISTRICT CLERK). /12/ THIS POSITION IS LOCATED
IN EACH OF THE 12 DISTRICT OFFICES. THE INCUMBENT, THE CHIEF CLERICAL
IN EACH DISTRICT OFFICE, IS RESPONSIBLE FOR PROVIDING CLERICAL AND
ADMINISTRATIVE ASSISTANCE TO THE DISTRICT RANGER AND FOR COORDINATING
AND DIRECTING THE BUSINESS MANAGEMENT ACTIVITIES OF THE DISTRICT. THE
DISTRICT RANGER IS RESPONSIBLE FOR ALL LABOR RELATIONS MATTERS WITHIN
HIS DISTRICT. THE RECORD REVEALS THAT THE INCUMBENTS ATTEND STAFF
MEETINGS WHERE PERSONNEL AND LABOR RELATIONS MATTERS ARE DISCUSSED, AND
TYPE AND HANDLE CONFIDENTIAL MATERIAL PERTAINING TO PROMOTIONS,
REDUCTIONS-IN-FORCE, GRIEVANCES, AND EMPLOYEE DISCIPLINE.
CLERK-TYPIST, GS-2 (MANAGEMENT SERVICES). THIS POSITION, OCCUPIED BY
BARBARA JEFFERS, IS LOCATED IN THE DIVISION OF MANAGEMENT SERVICES.
JEFFERS IS A TELEPHONE OPERATOR-RECEPTIONIST AND SERVES AS THE PERSONAL
SECRETARY FOR THE DIRECTOR OF MANAGEMENT SERVICES, WHO HAS BEEN
DESIGNATED THE ACTIVITY'S CHIEF LABOR RELATIONS REPRESENTATIVE. THE
RECORD DISCLOSES THAT SHE TYPES CONFIDENTIAL LABOR RELATIONS
CORRESPONDENCE BETWEEN THE ACTIVITY AND THE NFFE, MANAGEMENT POSITIONS
ON EMPLOYMENT AND LABOR RELATIONS MATTERS, AND MEMORANDA OF LABOR
RELATIONS MEETINGS. FURTHER, SHE ALSO HAS ACCESS TO LABOR RELATIONS
FILES AND MATERIALS PERTAINING TO REORGANIZATIONAL PLANS.
BECAUSE THE EMPLOYEES IN THESE CLASSIFICATIONS ASSIST AND ACT IN
CONFIDENTIAL CAPACITY TO INDIVIDUALS WHO FORMULATE OR EFFECTUATE
MANAGEMENT POLICIES IN THE FIELD OF LABOR RELATIONS, I FIND THAT THEY
ARE CONFIDENTIAL EMPLOYEES. /13/ ACCORDINGLY, I FIND THAT EMPLOYEES
CLASSIFIED AS CLERK (TYPING), GS-5 (DISTRICT CLERK) /14/ AND
CLERK-TYPIST, GS-2 (MANAGEMENT SERVICES) SHOULD BE EXCLUDED FROM THE
UNIT.
CLERK-TYPIST, GS-4 (SECONDARY CLERK)
THE ACTIVITY CONTENDS THAT EMPLOYEES IN THIS CLASSIFICATION SHOULD BE
EXCLUDED FROM THE BARGAINING UNIT AS CONFIDENTIAL EMPLOYEES.
THE POSITION OF CLERK-TYPIST, GS-4 (SECONDARY CLERK) /15/ IS LOCATED
IN 5 OF THE 12 RANGER DISTRICTS. THE INCUMBENTS PERFORM A VARIETY OF
CLERICAL, TYPING AND RECEPTIONIST DUTIES UNDER THE DIRECTION OF THE
CLERK (TYPING), GS-5 (DISTRICT CLERK). THE RECORD REVEALS THAT,
OCCASIONALLY, THEY TYPE GRIEVANCES, MINUTES OF LABOR RELATIONS MEETINGS,
AND CORRESPONDENCE BETWEEN THE NFFE AND THE ACTIVITY.
I CONCLUDE THAT THE EVIDENCE DOES NOT ESTABLISH THAT EMPLOYEES IN
THIS CLASSIFICATION SERVE IN A CONFIDENTIAL CAPACITY TO AN INDIVIDUAL
WHO FORMULATES OR EFFECTUATES MANAGEMENT POLICIES IN THE FIELD OF LABOR
RELATIONS. /16/ THUS, EVEN THOUGH THE INCUMBENTS TYPE LABOR RELATIONS
MATERIALS, IN MY JUDGMENT, STANDING ALONE, THE TYPING OF SUCH MATERIALS
DOES NOT WARRANT THE EXCLUSION OF AN EMPLOYEE FROM A BARGAINING UNIT.
/17/ ACCORDINGLY, I FIND THAT EMPLOYEES CLASSIFIED AS CLERK-TYPIST, GS-4
(SECONDARY CLERK) ARE NOT CONFIDENTIAL EMPLOYEES AND, THEREFORE, SHOULD
BE INCLUDED IN THE UNIT.
ORDER
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, FOR
WHICH THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 796, WAS
CERTIFIED ON OCTOBER 31, 1974, BE, AND IT HEREBY IS, CLARIFIED BY
EXCLUDING FROM THE SAID UNIT THOSE JOB CLASSIFICATIONS SET FORTH IN
GROUP A, AND BY INCLUDING IN SAID UNIT THOSE JOB CLASSIFICATIONS SET
FORTH IN GROUP B.
GROUP A
CLERK (TYPING), GS-4 (TECHNICAL SERVICES)
COMPUTER OPERATOR, GS-6
CRIMINAL INVESTIGATOR, GS-11
SUPERVISORY FORESTRY TECHNICIAN, GS-11 (TREE IMPROVEMENT)
SUPERVISORY SURVEYING TECHNICIAN, GS-9
CLERK (TYPING), GS-5 (DISTRICT CLERK)
CLERK-TYPIST, GS-2 (MANAGEMENT SERVICES)
GROUP B
CIVIL ENGINEERING TECHNICIAN, GS-7
FORESTRY TECHNICIAN, GS-5 (TIMBER STAND IMPROVEMENT
FORESTRY TECHNICIAN, GS-6 (TIMBER MARKING)
FORESTRY TECHNICIAN, GS-7 (TIMBER MARKING AND SALES ADMINISTRATION)
FORESTRY TECHNICIAN, GS-7 (RECREATION AREA MAINTENANCE)
FORESTRY TECHNICIAN, GS-9 (TIMBER SALES ADMINISTRATION)
SUPERVISORY FORESTRY TECHNICIAN, GS-5 (SALE AREA BETTERMENT)
SUPERVISORY FORESTRY TECHNICIAN, GS-6 (SALE AREA BETTERMENT)
SUPERVISORY FORESTRY TECHNICIAN, GS-11 (FIRE MANAGEMENT)
SURVEYING TECHNICIAN, GS-7
CLERK-TYPIST, GS-4 (SECONDARY CLERK)
DATED, WASHINGTON, D.C.
AUGUST 10, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ THE ACTIVITY SUBMITTED AN UNTIMELY BRIEF WHICH HAS NOT BEEN
CONSIDERED.
/2/ THE PARTIES STIPULATED THAT CERTAIN NAMED INDIVIDUALS IN VARIOUS
JOB CLASSIFICATIONS EITHER WERE OR WERE NOT SUPERVISORS WITHIN THE
MEANING OF SECTION 2(C) OF THE ORDER; WERE CONFIDENTIAL EMPLOYEES; OR
PERFORMED FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY AND ON THESE BASES SHOULD BE EXCLUDED FROM OR 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. CF. NEW JERSEY
DEPARTMENT OF DEFENSE, A/SLMR NO. 121.
/3/ THE CERTIFIED UNIT IS DESCRIBED AS: "ALL NONPROFESSIONAL
EMPLOYEES OF THE OUACHITA NATIONAL FOREST, U.S. DEPARTMENT OF
AGRICULTURE, FOREST SERVICE, EXCLUDING MANAGEMENT OFFICIALS,
PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL IN OTHER
THAN A PURELY CLERICAL CAPACITY, CONFIDENTIAL EMPLOYEES, TEMPORARY
EMPLOYEES WITH APPOINTMENTS NOT TO EXCEED 90 DAYS, EMPLOYEES OF THE
OUACHITA CIVILIAN CONSERVATION CENTER, AND SUPERVISORS AND GUARDS AS
DEFINED IN EXECUTIVE ORDER 11491, AS AMENDED."
/4/ THE FOREST SUPERVISOR HAS DELEGATED HIRING AUTHORITY FOR
PERMANENT EMPLOYEES TO THE DIRECTOR OF MANAGEMENT SERVICES AND THE
PERSONNEL OFFICER. ELEVEN OF THE 12 DISTRICT CLERKS SHARE HIRING
AUTHORITY FOR TEMPORARY AND SEASONAL EMPLOYEES WITH THEIR RESPECTIVE
DISTRICT RANGERS.
/5/ THE PARTIES STIPULATED THAT THE TESTIMONY OF JAMES CHAMBLISS
SHOULD BE CONSIDERED APPLICABLE TO FIVE OTHER EMPLOYEES OF THE ACTIVITY
IN THIS CLASSIFICATION.
/6/ THE PARTIES STIPULATED THAT THE DETERMINATION OF THE SUPERVISORY
STATUS OF GUY MEEK SHOULD BE BASED SOLELY ON POSITION DESCRIPTION NO.
8U1431, DATED MARCH 17, 1975.
/7/ THE PARTIES STIPULATED THAT THE TESTIMONY OF OSCAR BRIGGS SHOULD
BE CONSIDERED APPLICABLE TO SIX OTHER EMPLOYEES OF THE ACTIVITY IN THIS
CLASSIFICATION.
/8/ THE PARTIES STIPULATED THAT THE TESTIMONY OF FLOYD IRONS SHOULD
BE CONSIDERED APPLICABLE TO THREE OTHER EMPLOYEES OF THE ACTIVITY IN
THIS CLASSIFICATION.
/9/ THE PARTIES STIPULATED THAT THE TESTIMONY OF RAYMOND HEAD SHOULD
BE CONSIDERED APPLICABLE TO FIVE OTHER EMPLOYEES OF THE ACTIVITY IN THIS
CLASSIFICATION.
/10/ THE PARTIES STIPULATED THAT THE TESTIMONY OF L. D. RYAN SHOULD
BE CONSIDERED APPLICABLE TO TWO OTHER EMPLOYEES OF THE ACTIVITY IN THIS
CLASSIFICATION.
/11/ IN REGARD TO THE SURVEYING TECHNICIAN, GS-7 CLASSIFICATION, SEE
U.S. DEPARTMENT OF AGRICULTURE, FOREST SERVICE, FRANCIS MARION AND
SUMTER NATIONAL FOREST, A/SLMR NO. 227.
/12/ THE PARTIES STIPULATED THAT THE TESTIMONY OF BERNICE KEENER AND
PATSY WHITE SHOULD BE CONSIDERED APPLICABLE TO THE TEN OTHER EMPLOYEES
OF THE ACTIVITY IN THIS CLASSIFICATION.
/13/ CF. VIRGINIA NATIONAL GUARD HEADQUARTERS, 4TH BATTALION, 111TH
ARTILLERY, A/SLMR NO. 69. WITH REGARD TO THE CLERK (TYPING), GS-5
(DISTRICT CLERK) CLASSIFICATION, ALSO SEE U.S. DEPARTMENT OF
AGRICULTURE, FOREST SERVICE, MARK TWAIN NATIONAL FOREST, SPRINGFIELD,
MISSOURI, A/SLMR NO. 303; U.S. DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, FRANCIS MARION AND SUMTER NATIONAL FOREST, A/SLMR NO. 227.
/14/ IN VIEW OF THE FOREGOING, IT IS CONSIDERED UNNECESSARY TO DECIDE
WHETHER EMPLOYEES IN THE CLERK (TYPING), GS-5 (DISTRICT CLERK)
CLASSIFICATION SHOULD BE EXCLUDED FROM THE UNIT ON ANY OTHER BASIS.
/15/ THE PARTIES STIPULATED THAT THE TESTIMONY OF GRETTA BRUNT SHOULD
BE CONSIDERED APPLICABLE TO TWO OTHER EMPLOYEES OF THE ACTIVITY IN THIS
CLASSIFICATION.
/16/ CF. VIRGINIA NATIONAL GUARD HEADQUARTERS, CITED ABOVE.
/17/ SEE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, U.S. OFFICE OF
EDUCATION, HEADQUARTERS, A/SLMR NO. 803.
7 A/SLMR 878; P. 639; CASE NO. 62-4631(CO); AUGUST 10, 1977.
AUGUST 10, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, MEBA, AFL-CIO
A/SLMR NO. 878
THIS CASE INVOLVES AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY TASO
PETER ANTHAN (COMPLAINANT) ALLEGING THAT THE PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION, MEBA, AFL-CIO, (RESPONDENT) VIOLATED SECTION
19(B)(1) AND (3) OF THE ORDER BY CERTAIN COERCIVE ACTS TAKEN BY AGENTS
OF THE RESPONDENT AGAINST THE COMPLAINANT WHILE HE WAS ENGAGED IN HIS
AIR TRAFFIC CONTROL DUTIES AND WAS EXERCISING HIS RIGHTS ASSURED BY
SECTION 1(A) OF THE ORDER. SPECIFICALLY, THE COMPLAINANT CONTENDED THAT
ON JUNE 25, 1975, AGENTS OF THE RESPONDENT FAILED TO COOPERATE WITH HIM
IN CARRYING OUT HIS AIR TRAFFIC CONTROL DUTIES AND TOOK SPECIFIC ACTION
WHICH IMPEDED HIS WORK PERFORMANCE. FURTHER, THE COMPLAINANT CONTENDED
THAT ON JUNE 29, 1975, HE WAS IMPROPERLY THREATENED BY THE RESPONDENT'S
FACILITY REPRESENTATIVE.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT BOTH THE RESPONDENT AND
ITS LOCAL 352 HAD VIOLATED SECTION 19(B)(1) AND (3) OF THE ORDER. IN
REACHING THIS DETERMINATION, THE ADMINISTRATIVE LAW JUDGE FOUND, AMONG
OTHER THINGS, THAT: (1) ALTHOUGH LOCAL 352 WAS NOT SPECIFICALLY NAMED
AS A CO-RESPONDENT IN THE COMPLAINT, THE ALLEGATIONS OF THE COMPLAINT
WERE SUFFICIENTLY BROAD SO AS TO ENCOMPASS LOCAL 352 AS A RESPONDENT;
(2) THE RESPONDENT AND ITS LOCAL 352, BY AND THROUGH THE ACTIONS OF
THEIR AGENTS, ENGAGED IN A PERVASIVE PATTERN OF CONDUCT DESIGNED TO
RESTRAIN AND COERCE THE COMPLAINANT, AND OTHER UNSPECIFIED EMPLOYEES, IN
THE EXERCISE OF THEIR SECTION 1(A) RIGHT UNDER THE ORDER TO REFRAIN FROM
ASSISTING A LABOR ORGANIZATION IN VIOLATION OF SECTION 19(B)(1) OF THE
ORDER; AND (3) THE PATTERN OF CONDUCT ENGAGED IN BY THE AGENTS OF OF
BOTH THE RESPONDENT AND ITS LOCAL 352 AGAINST THE COMPLAINANT, AND OTHER
MEMBERS OF THE ORGANIZATION, HAD THE EFFECT OF HINDERING OR IMPEDING
THEIR WORK PERFORMANCE, PRODUCTIVITY OR DISCHARGE OF THEIR DUTIES OWED
AS EMPLOYEES OF THE UNITED STATES IN VIOLATION OF SECTION 19(B)(3) OF
THE ORDER.
THE ASSISTANT SECRETARY FOUND, IN AGREEMENT WITH THE ADMINISTRATIVE
LAW JUDGE, THAT THE RESPONDENT PATCO VIOLATED SECTION 19(B)(1) AND (3)
OF THE ORDER BY THE ACTIONS OF ITS AGENTS WITH RESPECT TO THE
COMPLAINANT. HOWEVER, WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S
FINDING THAT THE RESPONDENT'S LOCAL 352 ALSO VIOLATED SECTION 19(B)(1)
AND (3) OF THE ORDER, THE ASSISTANT SECRETARY CONCLUDED THAT PROCEDURE
DUE PROCESS PRECLUDED CONSTRUING A COMPLAINT SO BROADLY AS TO INCLUDE AS
PARTY RESPONDENTS COMPONENTS OF NATIONAL LABOR ORGANIZATIONS NOT NAMED
IN THE COMPLAINT. THE ASSISTANT SECRETARY ALSO DISAGREED WITH THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS OF VIOLATIONS OF THE ORDER WITH
RESPECT TO EVENTS NOT SET FORTH IN THE COMPLAINT. IN THIS REGARD, HE
CONCLUDED THAT THE COMPLAINT WAS QUITE SPECIFIC AS TO THE INCIDENTS
WHICH FORM THE BASIS OF THE COMPLAINT.
HOWEVER, THE ASSISTANT SECRETARY NOTED THAT INCIDENTS AND EVENTS NOT
SPECIFIED IN THE COMPLAINT MAY BE USED AS BACKGROUND EVIDENCE TO EXPLAIN
AND ILLUMINATE THE NATURE AND CHARACTER OF THE EVENTS SPECIFIED AS THE
ACTUAL BASIS OF THE COMPLAINT. IN THIS REGARD, THE ASSISTANT SECRETARY
FOUND THAT A PATTERN OF CONDUCT WAS ENGAGED IN BY THE RESPONDENT'S
AGENTS WHICH WAS DESIGNED TO "PERSUADE" THE COMPLAINANT TO COOPERATE
WITH THE RESPONDENT AND WHICH CULMINATED IN THE INCIDENTS SPECIFIED IN
THE COMPLAINT. THE ASSISTANT SECRETARY CONCLUDED, IN THIS REGARD, THAT
THE PURPOSE AND INTENT OF THE SPECIFIED INCIDENTS WAS MADE CLEAR WHEN
VIEWED IN THE CONTEXT OF THE SURROUNDING EVENTS. THUS, THE ASSISTANT
SECRETARY NOTED THAT SUBSEQUENT TO THE OCCURRENCE OF THE SPECIFIED
INCIDENTS AGENTS OF THE RESPONDENT WERE INVOLVED IN INCIDENTS, WHICH
WHEN CONSIDERED TOGETHER, MAY BE REASONABLY CONSTRUED AS ATTEMPTS TO
CARRY OUT THE THREAT ALLEGED AS ONE ASPECT OF THE UNFAIR LABOR PRACTICE
COMPLAINT. THEREFORE, THE ASSISTANT SECRETARY CONCLUDED THAT THE
RESPONDENT, BY THE ACTIONS OF ITS AGENTS ON JUNE 25 AND JUNE 29, 1975,
COERCED, OR ATTEMPTED TO COERCE, THE COMPLAINANT, A MEMBER OF ITS
ORGANIZATION, FOR THE PURPOSE OF HINDERING OR IMPEDING HIS WORK
PERFORMANCE, HIS PRODUCTIVITY, OR THE DISCHARGE OF HIS DUTIES OWED AS AN
EMPLOYEE OF THE UNITED STATES IN VIOLATION OF SECTION 19(B)(3) OF THE
ORDER. ADDITIONALLY, THE ASSISTANT SECRETARY VIEWED SUCH CONDUCT, ALONG
WITH THE THREAT MADE TO THE COMPLAINANT BY RESPONDENT'S FACILITY
REPRESENTATIVE, AS HAVING THE EFFECT OF INTERFERING WITH, RESTRAINING,
OR COERCING THE COMPLAINANT IN THE EXERCISE OF HIS SECTION 1(A) RIGHT TO
REFRAIN FROM ASSISTING A LABOR ORGANIZATION IN VIOLATION OF SECTION
19(B)(1) 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.
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, MEBA, AFL-CIO
RESPONDENT
CASE NO. 6204631(CO)
AND
TASO PETER ANTHAN, AIR TRAFFIC
CONTROLLER, FLORISSANT, MISSOURI
COMPLAINANT
DECISION AND ORDER
ON SEPTEMBER 29, 1976, ADMINISTRATIVE LAW JUDGE WILLIAM B. DEVANEY
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 CEASE AND DESIST THEREFROM AND
TAKE CERTAIN AFFIRMATIVE ACTIONS, AS SET FORTH IN THE ATTACHED
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER. THEREAFTER,
THE RESPONDENT 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. /1/ 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
EXCEPTIONS AND SUPPORTING BRIEF FILED BY THE RESPONDENT, I HEREBY ADOPT
THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS, ONLY TO THE EXTENT CONSISTENT HEREWITH.
THE COMPLAINT HEREIN ALLEGES, IN SUBSTANCE, THAT THE RESPONDENT LABOR
ORGANIZATION VIOLATED SECTION 19(B)(1) AND (3) OF EXECUTIVE ORDER 11491,
AS AMENDED, BY CERTAIN COERCIVE ACTS TAKEN BY ITS AGENTS AGAINST THE
COMPLAINANT WHILE THE LATTER WAS ENGAGED IN HIS AIR TRAFFIC CONTROL
DUTIES AND WAS EXERCISING HIS RIGHTS ASSURED BY SECTION 1(A) OF THE
ORDER. SPECIFICALLY, THE COMPLAINANT ALLEGES THAT ON JUNE 25, 1975,
AGENTS OF THE RESPONDENT FAILED TO COOPERATE WITH HIM IN CARRYING OUT
HIS AIR TRAFFIC CONTROL DUTIES AND TOOK SPECIFIC ACTION WHICH IMPEDED
HIS WORK PERFORMANCE. ADDITIONALLY, THE COMPLAINANT ALLEGES THAT ON
JUNE 29, 1975, HE WAS IMPROPERLY THREATENED BY THE RESPONDENT'S FACILITY
REPRESENTATIVE.
THE ESSENTIAL FACTS OF THE CASE, ARE SET FORTH, IN DETAIL, IN THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER, AND I SHALL
REPEAT THEM ONLY TO THE EXTENT NECESSARY AS INDICATED BELOW.
THE COMPLAINANT, FORMERLY AN AIR TRAFFIC CONTROLLER AT THE KANSAS
CITY MUNICIPAL AIRPORT, TRANSFERRED TO THE ST. LOUIS, MISSOURI, AIR
TRAFFIC CONTROL FACILITY ON JUNE 10, 1974. AS A RESULT OF HIS TRANSFER,
HE WAS REQUIRED TO UNDERGO TRAINING AND CERTIFICATION AT EACH AIR
TRAFFIC POSITION AT THE FACILITY FOR APPROXIMATELY ONE YEAR. THE RECORD
REFLECTS THAT, AT THE COMPLAINANT'S REQUEST, EMPLOYEE DENNIS REARDON
ASSISTED IN MUCH OF THIS TRAINING. /2/ HOWEVER, SOME TIME IN THE LATE
FALL OF 1974, RELATIONS BETWEEN THE COMPLAINANT AND REARDON, WHICH HAD
BEEN AMICABLE, CHANGED ABRUPTLY. THE RECORD REFLECTS THAT THE
COMPLAINANT, WHO WAS AN ACTIVE MEMBER OF THE PROFESSIONAL AIR TRAFFIC
COMPTROLLERS ORGANIZATION, MEBA, AFL-CIO, HEREIN ALSO REFERRED TO AS
PATCO, DISAGREED WITH REARDON OVER CERTAIN METHODS ADVOCATED BY REARDON
TO CARRY OUT THE PATCO'S GOALS. SUBSEQUENTLY, AS DISCLOSED BY THE
UNREFUTED TESTIMONY OF THE COMPLAINANT AND OTHER WITNESSES, REARDON AND
OTHER EMPLOYEES IDENTIFIED AMONG THE LEADERSHIP OF RESPONDENT'S LOCAL
352, ATTEMPTED, THROUGH VARIOUS ACTS, TO "PERSUADE" THE COMPLAINANT TO
AGREE WITH THEIR APPROACH TO LABOR-MANAGEMENT RELATIONS. ALTHOUGH THIS
"PERSUASION" INCLUDED SUCH CONDUCT AS MERELY "SHUNNING" THE COMPLAINANT,
A PATTERN OF REFUSING TO COOPERATE WITH HIM WHILE HE WAS CARRYING OUT
HIS AIR TRAFFIC CONTROL DUTIES ALSO DEVELOPED.
PRIOR TO JUNE 25, 1975, THIS LACK OF COOPERATION GENERALLY WAS
LIMITED TO NOT RESPONDING IMMEDIATELY WHEN HE REQUESTED ASSISTANCE IN
CARRYING OUT HIS AIR TRAFFIC CONTROL RESPONSIBILITIES. HOWEVER, AS
FOUND BY THE ADMINISTRATIVE LAW JUDGE, ON JUNE 25, 1975, REGENHOLD, A
CONTROLLER AT THE FACILITY, WHO WAS IDENTIFIED AS A PATCO CREW OR TEAM
REPRESENTATIVE, MADE AN APPARENT DELIBERATE ATTEMPT TO CAUSE A "SYSTEMS
ERROR" BY THE COMPLAINANT. WHILE THE EVIDENCE DOES NOT ESTABLISH THAT
REARDON WAS DIRECTLY INVOLVED IN THIS INCIDENT, IT DOES ESTABLISH THAT
REARDON WAS IN THE VICINITY AT THE TIME IT HAPPENED. MOREOVER, WHEN
CONFRONTED BY THE COMPLAINANT ON JUNE 29, 1975, ABOUT THE INCIDENT,
WHICH THE RECORD DISCLOSES WAS CLEARLY THE FAULT OF REGENHOLD, REARDON
TOLD THE COMPLAINANT THAT HE DID NOT SEE ANYTHING WRONG WITH IT, THAT HE
HAD HEARD THAT THE COMPLAINANT WAS A DANGEROUS CONTROLLER, AND, FINALLY,
ALLUDING TO THE FACT THAT COMPLAINANT HAD USED REARDON AND OTHER
CONTROLLERS TO CHECK OUT AT THE FACILITY, REARDON THREATENED THE
COMPLAINANT TO THE EFFECT THAT THE COMPLAINANT WOULD GET HIS IN THE END.
SHORTLY AFTER THE INCIDENTS OF JUNE 25 AND JUNE 29, 1975, ALLEGED IN
THE COMPLAINT, BUT PRIOR TO THE FILING OF THE COMPLAINT, SEVERAL OTHER
INCIDENTS FOLLOWED WHICH, WHEN CONSIDERED TOGETHER, MAY BE REASONABLY
CONSTRUED AS ATTEMPTS BY THE RESPONDENT AND ITS AGENTS TO CARRY OUT
REARDON'S THREAT. ON JULY 7, 1975, REARDON INTIMATED TO THE FACILITY
CHIEF THAT THE COMPLAINANT HAD CAUSED A "SYSTEMS ERROR" AND STATED THAT
IT HAD BEEN A BAD OPERATION. /3/ DURING THE SAME TIME PERIOD, REARDON
AND OTHER CONTROLLERS, IDENTIFIED AS AMONG THE LEADERSHIP OF LOCAL 352,
PROTESTED WORKING WITH THE COMPLAINANT TO THE FACILITY CHIEF. /4/
FINALLY, THE RECORD REVEALS THAT SHORTLY AFTER HIS JULY 7, 1975,
DISCUSSION WITH REARDON, THE FACILITY CHIEF WAS INFORMED BY HIS REGIONAL
OFFICE THAT THE REGIONAL VICE PRESIDENT OF THE PATCO HAD CHARGED THAT
THE FACILITY CHIEF WAS COVERING UP A "SYSTEMS ERROR" INVOLVING THE
COMPLAINANT.
IN HIS RECOMMENDED DECISION AND ORDER, THE ADMINISTRATIVE LAW JUDGE
CONCLUDED THAT BOTH THE RESPONDENT AND ITS LOCAL 352 HAD VIOLATED
SECTION 19(B)(1) AND (3) OF THE ORDER. IN REACHING THIS CONCLUSION, THE
ADMINISTRATIVE LAW JUDGE FOUND, AMONG OTHER THINGS, THAT: (1) ALTHOUGH
LOCAL 352 WAS NOT SPECIFICALLY NAMED AS A CO-RESPONDENT IN THE
COMPLAINT, THE ALLEGATIONS OF THE COMPLAINT WERE SUFFICIENTLY BROAD SO
AS TO ENCOMPASS LOCAL 352 AS A RESPONDENT IN THE INSTANT COMPLAINT; (2)
THE RESPONDENT AND ITS LOCAL 352, BY AND THROUGH THE ACTIONS OF THEIR
AGENTS, ENGAGED IN A PERVASIVE PATTERN OF CONDUCT DESIGNED TO RESTRAIN
AND COERCE THE COMPLAINANT, AND OTHER UNSPECIFIED EMPLOYEES, IN THE
EXERCISE OF THEIR SECTION 1(A) RIGHT UNDER THE ORDER TO REFRAIN FROM
ASSISTING A LABOR ORGANIZATION, IN VIOLATION OF SECTION 19(B)(1) OF THE
ORDER; AND (3) THE PATTERN OF CONDUCT ENGAGED IN BY THE AGENTS OF BOTH
THE RESPONDENT AND ITS LOCAL 352 AGAINST THE COMPLAINANT, AND OTHER
MEMBERS OF THE ORGANIZATION, HAD THE EFFECT, AMONG OTHER THINGS, OF
HINDERING OR IMPEDING THEIR WORK PERFORMANCE, PRODUCTIVITY, OR DISCHARGE
OF THEIR DUTIES OWED AS EMPLOYEES OF THE UNITED STATES IN VIOLATION OF
SECTION 19(B)(3) OF THE ORDER.
BASED ON THE FOREGOING, AND IN AGREEMENT WITH THE ADMINISTRATIVE LAW
JUDGE, I FIND THAT THE RESPONDENT NAMED IN THE COMPLAINT, THE PATCO,
VIOLATED SECTION 19(B)(1) AND (3) OF THE EXECUTIVE ORDER BY THE
ABOVE-NOTED CONDUCT OF ITS AGENTS WITH RESPECT TO THE COMPLAINANT.
HOWEVER, WITH REGARD TO THE ADMINISTRATIVE LAW JUDGE'S FINDING THAT
PATCO LOCAL 352 ALSO VIOLATED THE ORDER, IN MY VIEW, PROCEDURAL DUE
PROCESS PRECLUDES CONSTRUING A COMPLAINT SO BROADLY AS TO INCLUDE AS
PARTY RESPONDENTS COMPONENTS OF NATIONAL LABOR ORGANIZATIONS NOT NAMED
IN THE COMPLAINT. IN MY VIEL, TO ALLOW OTHERWISE WOULD IMPEDE THE
ORDERLY PROCESSING OF UNFAIR LABOR PRACTICE COMPLAINTS AND DEPRIVE
CONSTITUENT LOCAL UNIONS OF THE KNOWLEDGE OF THE NATURE AND EXTENT OF
THE ALLEGATIONS CONFRONTING THEM AS WELL AS INHIBIT THEIR RIGHT TO
DEFEND AGAINST SUCH ALLEGATIONS. MOREOVER, IT IS NOTED THAT THE PATCO,
AND NOT LOCAL 352, IS THE EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES IN
QUESTION.
AS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDATION THAT VIOLATIONS
SHOULD BE FOUND WITH RESPECT TO EVENTS NOT SET FORTH IN THE COMPLAINT, I
DISAGREE. THUS, THE COMPLAINT IS QUITE SPECIFIC AS TO THE INCIDENTS
WHICH FORM THE BASIS OF THE ALLEGATIONS THEREIN. IT SETS FORTH THE
INCIDENTS WHICH OCCURRED ON JUNE 25 AND JUNE 29, 1975, AS THE BASIS OF
THE COMPLAINT. UNDER THESE CIRCUMSTANCES, I DO NOT ADOPT THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS OF VIOLATION OF THE ORDER BASED UPON
INCIDENTS OR EVENTS NOT SET FORTH IN THE COMPLAINT.
HOWEVER, ALTHOUGH INCIDENTS AND EVENTS NOT SPECIFIED IN THE COMPLAINT
MAY NOT THEMSELVES BE INDEPENDENTLY ADJUDICATED UNDER THE ORDER, THEY
MAY, IN MY VIEW, SERVE AS BACKGROUND EVIDENCE TO EXPLAIN AND ILLUMINATE
THE NATURE AND CHARACTER OF THE EVENTS SPECIFIED AS THE ACTUAL BASIS FOR
THE COMPLAINT. AS NOTED MORE FULLY IN THE ATTACHED ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER, THE RESPONDENT ENGAGED IN A
PATTERN OF CONDUCT DESIGNED TO "PERSUADE" THE COMPLAINANT TO COOPERATE
WITH THE RESPONDENT, CULMINATING IN THE JUNE 25 INCIDENT, WHICH, ALONG
WITH THE RELATED JUNE 29 CONVERSATION BETWEEN THE COMPLAINANT AND
REARDON, CONSTITUTE THE GRAVAMEN OF THE INSTANT COMPLAINT.
THE PURPOSE AND INTENT OF THE JUNE 25 INCIDENT, AS WELL AS ITS
ORIGIN, BECOMES CLEAR WHEN VIEWED IN THE CONTEXT OF THE SURROUNDING
EVENTS. THUS, SHORTLY AFTER THE JUNE 25 INCIDENT, ON JUNE 29, DURING A
CONVERSATION INITIATED BY THE COMPLAINANT CONCERNING THE INCIDENT,
REARDON FIRST ATTEMPTED TO DEFEND REGENHOLD, WHO WAS DIRECTLY INVOLVED
IN THE INCIDENT, BY SAYING THAT HE SAW NOTHING WRONG IN THE INCIDENT;
THEN HE VERBALLY ATTACKED THE COMPLAINANT BY ASSERTING THAT HE HAD HEARD
THAT THE COMPLAINANT WAS A DANGEROUS CONTROLLER; AND, FINALLY, ALLUDING
TO THE COMPLAINANT'S FAILURE TO SUPPORT THE RESPONDENT AFTER HAVING USED
REARDON AND OTHER CONTROLLERS TO CHECK OUT AT THE FACILITY, REARDON
THREATENED THE COMPLAINANT THAT HE WOULD GET HIS IN THE END. SHORTLY
THEREAFTER, IN A CONVERSATION WITH THE FACILITY CHIEF CONCERNING THE
JUNE 25 INCIDENT, REARDON IMPLIED THAT THE COMPLAINANT WAS INVOLVED IN A
"SYSTEMS ERROR"; BUT, WHEN QUESTIONED CLOSELY BY THE FACILITY CHIEF,
REARDON RETREATED FROM THAT IMPLICATION BY ASSERTING THAT IT WAS A BAD
OPERATION. SHORTLY THEREAFTER, A VICE PRESIDENT OF THE RESPONDENT
COMMUNICATED WITH THE REGIONAL OFFICE OF FEDERAL AVIATION
ADMINISTRATION, ASSERTING THAT THE COMPLAINANT WAS INVOLVED IN A
"SYSTEMS ERROR" ON JUNE 25. FINALLY, WITHIN THIS SAME TIME FRAME,
REARDON, REGENHOLD, AND OTHER CONTROLLERS IDENTIFIED AS COOPERATING WITH
REARDON, PROTESTED WORKING WITH THE COMPLAINANT TO THE FACILITY CHIEF.
IN MY JUDGMENT, THESE INCIDENTS, WHEN VIEWED IN THEIR TOTALITY,
PROVIDE SUBSTANTIAL AND PERSUASIVE BASIS FOR FINDING THAT THE
RESPONDENT, BY AND THROUGH THE ACTIONS OF ITS AGENT, REARDON, ENGAGED IN
A PATTERN OF CONDUCT, CULMINATING IN THE JUNE 25 INCIDENT AND THE
CONVERSATION OF ITS AGENT WITH THE COMPLAINANT ON JUNE 29, DESIGNED TO
COERCE THE COMPLAINANT TO COOPERATE WITH THE RESPONDENT OR BE PUNISHED
FOR HIS REFUSAL TO DO SO. /5/
AS INDICATED ABOVE, I FIND, IN AGREEMENT WITH THE ADMINISTRATIVE LAW
JUDGE, THAT BY ITS ACTIONS ON JUNE 25 AND JUNE 29, 1975, THE RESPONDENT
VIOLATED SECTION 19(B)(3) OF THE ORDER. /6/ THE EVIDENCE CLEARLY
ESTABLISHES THAT, AT ALL TIME MATERIAL HEREIN, THE COMPLAINANT WAS A
MEMBER OF THE RESPONDENT, /7/ AND THAT THE RESPONDENT COERCED, OR
ATTEMPTED TO COERCE, THE COMPLAINANT FOR THE PURPOSE OF HINDERING OR
IMPEDING HIS WORK PERFORMANCE, PRODUCTIVITY, OR THE DISCHARGE OF HIS
DUTIES OWED AS AN EMPLOYEE OF THE UNITED STATES. /8/ FURTHER, I VIEW
THE RESPONDENT'S CONDUCT ON BOTH OF THE ABOVE-NOTED DATES AS HAVING THE
EFFECT OF INTERFERING WITH, RESTRAINING, OR COERCING THE COMPLAINANT IN
THE EXERCISE OF HIS SECTION 1(A) RIGHT TO REFRAIN FROM ASSISTING A LABOR
ORGANIZATION, IN VIOLATION OF SECTION 19(B)(1) OF THE ORDER.
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 PROFESSIONAL AIR
TRAFFIC CONTROLLERS ORGANIZATION, MEBA, AFL-CIO, SHALL:
1. CEASE AND DESIST FROM:
(A) COERCING, OR ATTEMPTING TO COERCE, TASO PETER ANTHAN, OR ANY
OTHER MEMBER OF ITS ORGANIZATION, FOR THE PURPOSE OF HINDERING OR
IMPEDING HIS WORK PERFORMANCE, HIS PRODUCTIVITY, OR THE DISCHARGE OF HIS
DUTIES OWED AS AN EMPLOYEE OF THE UNITED STATES.
(B) INTERFERING WITH, RESTRAINING, OR COERCING TASO PETER ANTHAN, AN
EMPLOYEE OF THE DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION, AIR TRAFFIC CONTROL TOWER, ST. LOUIS, MISSOURI, IN THE
EXERCISE OF HIS RIGHTS ASSURED BY THE ORDER, BY ENGAGING IN CONDUCT
WHICH HAS THE EFFECT OF HINDERING EMPLOYEE ANTHAN IN THE DISCHARGE OF
HIS AIR TRAFFIC CONTROL DUTIES OR BY THREATENING ANTHAN REGARDING
EMPLOYMENT RELATED MATTERS.
(C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHT ASSURED BY THE ORDER
TO REFRAIN FROM ASSISTING A LABOR ORGANIZATION.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE EXECUTIVE ORDER.
(A) POST AT PATCO LOCAL 352'S OFFICE AT THE DEPARTMENT OF
TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, AIR TRAFFIC CONTROL
TOWER, ST. LOUIS, MISSOURI; AT THE PATCO'S REGIONAL OFFICE WHICH
ENCOMPASSES ST. LOUIS, MISSOURI; AND AT THE PATCO'S NATIONAL 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 PRESIDENT OF THE
PATCO 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 MEMBERS ARE CUSTOMARILY POSTED. THE
PRESIDENT SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE
NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) SUBMIT SIGNED COPIES OF SAID NOTICE TO THE CHIEF OF THE AIR
TRAFFIC CONTROL TOWER, ST. LOUIS, MISSOURI, FOR POSTING IN CONSPICUOUS
PLACES, WHERE UNIT EMPLOYEES ARE LOCATED, WHERE THEY SHALL BE MAINTAINED
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 OF LABOR FOR LABOR-MANAGEMENT RELATIONS, 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.
AUGUST 10, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ IN ITS EXCEPTIONS, THE RESPONDENT CONTENDED THAT CERTAIN RULINGS
MADE BY THE ADMINISTRATIVE LAW JUDGE AT THE HEARING WERE CONTRADICTORY.
BASED UPON AN EXAMINATION OF THE RECORD, I FIND NO BASIS FOR THE
RESPONDENT'S CONTENTION THAT THE RULINGS IN QUESTION WERE EITHER
CONTRADICTORY OR PREJUDICIAL.
/2/ THE RECORD ALSO DISCLOSES THAT REARDON, IN ADDITION TO BEING AN
EXPERIENCED CONTROLLER, HELD THE DUAL POSITIONS OF PRESIDENT OF
RESPONDENT'S LOCAL 352 AND FACILITY REPRESENTATIVE OF THE RESPONDENT AT
ST. LOUIS DURING THE CRITICAL TIME PERIOD HEREIN.
/3/ IF, IN FACT, THE COMPLAINANT HAD BEEN RESPONSIBLE FOR A "SYSTEMS
ERROR" HE WOULD HAVE BEEN SUBJECT TO DISCIPLINE UP TO, AND INCLUDING,
DISMISSAL.
/4/ THE RECORD REFLECTS THAT NONE OF THESE CONTROLLERS ACTUALLY
REFUSED TO WORK WITH THE COMPLAINANT.
/5/ THE RECORD REFLECTS THAT NONE OF THE ABOVE-NOTED INCIDENTS
OCCURRED AFTER THE COMPLAINT IN THIS MATTER WAS FILED.
/6/ SECTION 19(B)(3) PROVIDES: "A LABOR ORGANIZATION SHALL NOT-- (3)
COERCE, ATTEMPT TO COERCE, OR DISCIPLINE, FINE, OR TAKE OTHER ECONOMIC
SANCTION AGAINST A MEMBER OF THE ORGANIZATION AS PUNISHMENT OR REPRISAL
FOR, OR FOR THE PURPOSE OF HINDERING OR IMPEDING HIS WORK PERFORMANCE,
HIS PRODUCTIVITY, OR THE DISCHARGE OF HIS DUTIES OWED AS AN OFFICER OR
EMPLOYEE OF THE UNITED STATES."
/7/ THE UNREFUTED TESTIMONY OF THE COMPLAINANT ESTABLISHES THAT HE
RESIGNED FROM THE RESPONDENT APPROXIMATELY TWO WEEKS AFTER THE EVENTS
WHICH CONSTITUTE THE BASIS OF THE INSTANT COMPLAINT.
/8/ CONTRARY TO THE CONTENTIONS OF THE RESPONDENT IN ITS BRIEF IN
SUPPORT OF ITS EXCEPTIONS, I DO NOT VIEW THE PROSCRIPTION OF SECTION
19(B)(3) AS BEING LIMITED STRICTLY TO SITUATIONS INVOLVING INTERNAL
UNION DISCIPLINE. RATHER, I VIEW THIS SECTION OF THE ORDER AS
EXPRESSING A SPECIFIC CONCERN TO PROTECT MEMBERS OF A LABOR ORGANIZATION
FROM ANY TYPE OF COERCION BY THE ORGANIZATION AS PUNISHMENT FOR, OR FOR
THE PURPOSE OF HINDERING OR IMPEDING THEIR WORK PERFORMANCE,
PRODUCTIVITY, OR THE DISCHARGE OF THEIR DUTIES. ALTHOUGH THIS SECTION
OF THE ORDER PROSCRIBES ACTIONS TRADITIONALLY ASSOCIATED WITH INTERNAL
UNION RECOURSES AGAINST MEMBERS, SUCH AS FINES OR OTHER ECONOMIC
SANCTIONS, IT ALSO PROSCRIBES COERCION OR ATTEMPTS TO COERCE, AND
QUALIFIES SUCH PROSCRIBED ACTS WITH THE CLAUSE " . . . AS PUNISHMENT OR
REPRISAL FOR, OR FOR THE PURPOSE OF HINDERING OR IMPEDING HIS WORK
PERFORMANCE, HIS PRODUCTIVITY, OR THE DISCHARGE OF HIS DUTIES OWED AS AN
OFFICER OR EMPLOYEE OF THE UNITED STATES." IN MY VIEW, THE ABOVE-NOTED
LANGUAGE CONTAINED IN SECTION 19(B)(3) INDICATES THAT THE EXECUTIVE
ORDER WAS INTENDED TO PROTECT UNION MEMBERS FROM ANY ACT BY A LABOR
ORGANIZATION WHICH IN ANY WAY INTERFERES WITH THE PERFORMANCE OF THEIR
DUTIES AS EMPLOYEES.
APPENDIX
NOTICE TO ALL MEMBERS AND EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS AND IN ORDER TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
AMENDED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE
WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES AT THE
ST. LOUIS, MISSOURI, AIR TRAFFIC CONTROL TOWER THAT:
WE WILL NOT COERCE, OR ATTEMPT TO COERCE, A MEMBER OF THE
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, MEBA, AFL-CIO, FOR
THE PURPOSE OF HINDERING OR IMPEDING HIS WORK PERFORMANCE, HIS
PRODUCTIVITY, OR THE DISCHARGE OF HIS DUTIES OWED AS AN EMPLOYEE OF THE
UNITED STATES.
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE TASO PETER ANTHAN, AN
EMPLOYEE OF THE DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION, AIR TRAFFIC CONTROL TOWER, ST. LOUIS, MISSOURI, IN THE
EXERCISE OF RIGHTS ASSURED BY THE ORDER, BY ENGAGING IN CONDUCT WHICH
HAS THE EFFECT OF HINDERING EMPLOYEE ANTHAN IN THE DISCHARGE OF HIS AIR
TRAFFIC CONTROL DUTIES OR BY THREATENING ANTHAN REGARDING EMPLOYMENT
RELATED MATTERS.
WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THE RIGHT ASSURED BY THE ORDER TO
REFRAIN FROM ASSISTING A LABOR ORGANIZATION.
PATCO/MEBA, AFL-CIO
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 QUESTION CONCERNING THIS NOTICE OR
COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
WITH THE REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR, WHOSE ADDRESS IS: 2200 FEDERAL OFFICE BLDG., 911 WALNUT STREET,
KANSAS CITY, MISSOURI 64106.
U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
SUITE 700-1111 20TH STREET, N.W.
WASHINGTON, D.C. 20036
IN THE MATTER OF
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, MEBA, AFL-CIO,
ST. LOUIS, MISSOURI
RESPONDENT
CASE NO. 62-4631(CO)
AND
TASO PETER ANTHAN, AIR TRAFFIC
CONTROLLER, FLORISSANT, MISSOURI
COMPLAINANT
CHARLES P. OLDHAM, ESQUIRE
ROOM 326
706 CHESTNUT STREET
ST. LOUIS, MISSOURI 63101
FOR THE COMPLAINANT
WILLIAM B. PEER, ESQUIRE
GENERAL COUNSEL, PROFESSIONAL
AIR TRAFFIC CONTROLLERS ORGANIZATION
BARR AND PEER
SUITE 1002
11101 17TH STREET, N.W.
WASHINGTON, D.C. 20036
FOR THE RESPONDENT
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
RECOMMEND DECISION AND ORDER
STATEMENT OF THE CASE
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED (HEREINAFTER
ALSO REFERRED TO AS "ORDER"). IT WAS INITIATED BY A WRITTEN CHARGE
FILED WITH THE LABOR ORGANIZATION OR ITS AGENTS ON, OR ABOUT, JULY 7,
1975, AND A COMPLAINT AGAINST LABOR ORGANIZATION OR ITS AGENTS FILED
AUGUST 20, 1975, ALLEGING VIOLATIONS OF SECTION 19(B)(1) AND (3) OF THE
ORDER. NOTICE OF HEARING ISSUED MARCH 8, 1976, SCHEDULING A HEARING ON
MAY 6, 1976, AND ON MAY 3, 1976, AT THE REQUEST OF THE PARTIES, AN ORDER
RESCHEDULING HEARING TO JULY 14, 1976, ISSUED, PURSUANT TO WHICH A
HEARING WAS DULY HELD BEFORE THE UNDERSIGNED ON JULY 14 AND 15, 1976, IN
ST. LOUIS, MISSOURI. THE COMPLAINT NAMES PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION AFFILIATED WITH M.E.B.A. (AFL-CIO)
(HEREINAFTER PATCO) AND CHARGES PATCO AND ITS REPRESENTATIVE, MR. DENNIS
M. REARDON, LOCAL REPRESENTATIVE OF PATCO, WITH VIOLATION OF SECTIONS
19(B)(1) AND (3) OF THE ORDER.
A MOTION TO DISMISS WAS MADE AT THE HEARING BY COUNSEL FOR
RESPONDENT, WAS CARRIED WITH THE CASE AND WILL BE DECIDED HEREIN.
ALL PARTIES WERE REPRESENTED BY ABLE COUNSEL, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES AND TO
INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED AND BRIEFS WERE TIMELY
FILED BY THE PARTIES WHICH HAVE BEEN CAREFULLY CONSIDERED. UPON THE
BASIS OF THE ENTIRE RECORD, /1/ INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATIONS:
FINDINGS OF FACT
RESPONDENT CALLED NO WITNESSES AND PRESENTED NO TESTIMONY.
ACCORDINGLY, THE FOLLOWING FINDINGS REPRESENT, IN ESSENCE, A BRIEF
SUMMARY OF THE TESTIMONY AND EVIDENCE PRESENTED BY COMPLAINANT. /2/
1. COMPLAINANT, TASO PETER ANTHAN, WAS AN AIR TRAFFIC CONTROLLER IN
THE NAVY, IS A LICENSED COMMERCIAL PILOT, HOLDS AN INSTRUMENT RATING,
MULTI-ENGINE RATING, FLIGHT INSTRUCTOR RATING AND AN ADVANCE GROUND
INSTRUCTOR RATING. COMPLAINANT STARTED WORK FOR FAA IN 1966 IN KANSAS
CITY, INITIALLY AS A WEATHER BRIEFER AND COMMUNICATIONS SPECIALIST WITH
THE FLIGHT SERVICE STATION AT THE KANSAS CITY MUNICIPAL AIRPORT, AND IN
1968 WAS ACCEPTED AT THE KANSAS CITY MUNICIPAL AIR TRAFFIC CONTROL TOWER
WHERE HE TRAINED FOR APPROXIMATELY ONE YEAR PRIOR TO BECOMING A FULL
PERFORMANCE CONTROLLER IN THE APPROACH CONTROL RADAR AND TOWER. KANSAS
CITY IS NOW A LEVEL 2 AIRPORT (ST. LOUIS IS A LEVEL 4 AIRPORT-300,000
OPERATIONS PER YEAR-AS ARE SUCH AIRPORTS AS LAGUARDIA, O'HARE, MIAMI,
ATLANTA, LOS ANGELES AND DENVER).
2. UPON TRANSFER FROM ONE FACILITY TO ANOTHER, CONTROLLERS, EVEN
THOSE IN SUPERVISORY JOBS, MUST UNDERGO TRAINING AND CERTIFICATION AT
EACH POSITION IN THE FACILITY. ON JUNE 10, 1974, COMPLAINANT
TRANSFERRED TO ST. LOUIS AND, AS HE HAD KNOWN MR. DENNIS REARDON IN
KANSAS CITY, ASKED TO BE ASSIGNED TO MR. REARDON AS HIS TRAINEE. MR.
REARDON THEREAFTER ACTED AS COMPLAINANT'S INSTRUCTOR UNTIL ABOUT JANUARY
OR FEBRUARY, 1975.
3. COMPLAINANT INITIALLY BECAME A MEMBER OF PATCO IN KANSAS CITY IN
LATE 1969 OR EARLY IN 1970; RESIGNED IN MARCH, 1970; REJOINED IN 1973,
ABOUT A YEAR BEFORE COMING TO ST. LOUIS; AND REMAINED A MEMBER OF PATCO
UNTIL HE RESIGNED A COUPLE OF WEEKS AFTER THE JUNE 25, 1975, INCIDENT,
INFRA.
4. COMPLAINANT'S RELATIONS WITH MESSRS. REARDON AND REGENHOLD WERE
CLOSE AND AMICABLE FOR SOME TIME AFTER JUNE 10, 1974, AND COMPLAINANT
DISCUSSED UNION AFFAIRS WITH BOTH FROM TIME TO TIME. MR. REARDON WAS
PRESIDENT OF PATCO LOCAL 352 FROM JULY 1, 1974 TO JUNE 30, 1975, A
MEMBER OF PATCO'S REGIONAL CONSTITUTION COMMITTEE, A MEMBER OF PATCO'S
REGIONAL NEGOTIATING COMMITTEE, AND PATCO'S FACILITY REPRESENTATIVE AT
THE ST. LOUIS TOWER. MR. REGENHOLD WAS IDENTIFIED AS A PATCO TEAM, OR
CREW, REPRESENTATIVE. DURING THE FALL OF 1974, AND CONTINUING
THEREAFTER THROUGH THE SPRING AND SUMMER OF 1975, CONSIDERABLE
DISAGREEMENT AROSE BETWEEN PATCO AND MANAGEMENT CONCERNING VARIOUS
MATTERS, INCLUDING SEPARATION OF AIRCRAFT, COMBINING OF POSITIONS,
AVOIDANCE OF OVERTIME BY USING TRAINEES, REQUEST FOR EARLY DESCENT, ETC.
COMPLAINANT TESTIFIED THAT IN THE FALL OF 1974, MR. REARDON DISCUSSED
WITH HIM ONE UNION TECHNIQUE WHICH WAS TO SLOW DOWN AIRCRAFT BY
REQUIRING BIGGER AND BIGGER SLOTS ON FINAL APPROACH AND COMPLAINANT
FURTHER TESTIFIED THAT HE HAD WORKED OPPOSITE CONTROLLERS WHO RAN SLOTS
(SEPARATIONS) FROM 8 TO 17 MILES AS COMPARED TO THE REQUIRED SEPARATION
OF 3 MILES OR 1,000 FEET OF ALTITUDE. COMPLAINANT STATED THAT MR.
REARDON ADVISED HIM THAT IT WOULD BE BETTER IF HE DIDN'T PARTICIPATE IN
SOME OF THE SLOWING DOWN TECHNIQUES BECAUSE HE WAS STILL IN A TRAINING
STATUS; HOWEVER, COMPLAINANT DID TAKE SICK LEAVE ON OCCASIONS TO
SUPPORT PATCO'S STANCE. ON ONE OCCASION, ASSISTANT FACILITY CHIEF HARDY
HAD CALLED COMPLAINANT TO COME IN ON THE MIDNIGHT (MID-WATCH) SHIFT AND
HE HAD AGREED TO DO SO; BUT MR. REARDON CALLED COMPLAINANT AND TOLD
HIM THAT MANAGEMENT WAS TRYING TO AVOID OVERTIME BY USING A TRAINEE, SO
COMPLAINANT CALLED MR. HARDY BACK AND TOLD HIM HE COULD NOT ACCEPT THE
MID-WATCH ASSIGNMENT.
5. ANOTHER PROCEDURE URGED BY MR. REARDON WAS THAT EACH CONTROLLER
INVOKE ARTICLE 55 /3/ OF THE PATCO-FAA AGREEMENT WHENEVER A CONTROLLER
HAD SOME PROFESSIONAL DISAGREEMENT WITH SUPERVISORS' INSTRUCTIONS. MR.
IRVING R. BURNHART TESTIFIED THAT IN 1975, WHILE HE, BURNHART, WAS STILL
A CONTROLLER (MR. BURNHART BECAME AN EVALUATION PROFICIENCY DEVELOPMENT
SPECIALIST IN SEPTEMBER 1975) IN THE LOCKER ROOM AT SHIFT CHANGE, AT
ABOUT 3:30 P.M., MR. REARDON, SPEAKING TO THE SIX OR EIGHT CONTROLLERS
ASKED THAT ALL MEMBERS OF THE BARGAINING UNIT INVOKE ARTICLE 55 AT ANY
TIME THEY WERE TOLD TO COMBINE POSITIONS; THAT COMPLAINANT ASKED WHAT
WOULD BE THE RESULT IF HE DID NOT WISH TO DO THAT AND MR. REARDON
REPLIED THAT "HE FELT THAT THE UNION'S POSITION WOULD NOT BE AS STRONG
IN THE EVENT IT WOULD BECOME NECESSARY TO DEFEND ONE OF THE MEMBERS OF
THE BARGAINING UNIT IF THEY DID NOT, IN FACT, INVOKE ARTICLE 55." MR.
BURNHART FURTHER TESTIFIED THAT HE DISCUSSED THE INVOKING OF ARTICLE 55
WITH MR. REARDON LATER AND MR. REARDON AGAIN SAID HE WAS REQUESTING
EVERYONE IN THE BARGAINING UNIT TO INVOKE ARTICLE 55.
6. COMPLAINANT DISAGREED WITH MR. REARDON ON HIS APPROACH TO
LABOR-MANAGEMENT RELATIONS AND THE RELATIONSHIP WITH MR. REARDON
ABRUPTLY CHANGED AS DID THE ATTITUDE OF CERTAIN OTHER CONTROLLERS.
COMPLAINANT WAS SHUNNED AND MR. DON EARLY, FACILITY CHIEF, TESTIFIED
THAT HE HAD OBSERVED IN THE LUNCHROOM IN THE READY ROOM AREA THAT WHEN
COMPLAINANT WAS PRESENT HE WAS "ALONE IN A CROWD"; THAT ON ONE OCCASION
HE HAD SEEN COMPLAINANT SIT DOWN AND ANOTHER CONTROLLER HAD GOT UP AND
MOVED TO ANOTHER TABLE. FROM THE TIME THAT COMPLAINANT EXPRESSED
DISAGREEMENT WITH MR. REARDON ON LABOR-MANAGEMENT POLICIES, A MARKED
LACK OF COORDINATION AND COOPERATION DEVELOPED ON THE PART OF VARIOUS
CONTROLLERS, IDENTIFIED BY COMPLAINANT AS JOHN CHANDLER,
SECRETARY-TREASURER OF PATCO LOCAL 352; TOM FERRING, VICE PRESIDENT OF
PATCO LOCAL 352 (NOW PRESIDENT OF LOCAL 352); JIM STACK; RICK RAUGH;
RICK REGENHOLD; AND DENNIS REARDON, THEN PRESIDENT OF PATCO LOCAL 352.
MESSRS. STACK AND RAUGH WERE NOT OFFICERS OF LOCAL 352 BUT WERE MEMBERS
OF PATCO. TWO OR MORE WITNESSES TESTIFIED THAT THEY BELIEVED MR.
REGENHOLD WAS THE TEAM, OR CREW, PATCO REPRESENTATIVE.
THE LACK OF COORDINATION AND COOPERATION IN AIR TRAFFIC CONTROL WAS
THROUGH DELAY IN RESPONDING TO COMPLAINANT'S REQUESTS, REPEATED REQUESTS
TO "SAY AGAIN", DENIAL OF COMPLAINANT'S REQUESTS FOR ENTRY OF AIRCRAFT
INTO THEIR CONTROLLED AIR SPACE, DENIAL OF COMPLAINANT'S REQUESTS FOR
EARLY DESCENT, ETC., WHICH AFFECTED COMPLAINANT'S ABILITY TO MOVE AIR
TRAFFIC AND GREATLY INTENSIFIED THE PRESSURE ON COMPLAINANT AS AN AIR
TRAFFIC CONTROLLER. MICHAEL LABATY, A CONTROLLER AND MEMBER OF PATCO,
TESTIFIED THAT ON ONE OCCASION WHEN HE WAS SITTING NEXT TO COMPLAINANT,
COMPLAINANT ASKED FOR A DESCENT AND IT WAS DENIED AND COMPLAINANT "JUST
KIND OF THREW UP HIS HANDS IN FRUSTRATION". MR. LYLE BJERKESTRAND, WHO
BECAME TEAM SUPERVISOR OF THE TEAM ON WHICH COMPLAINANT WORKED ON
FEBRUARY 2, 1975, TESTIFIED THAT ON ONE OCCASION WHEN MR. REARDON WAS
WORKING DEPARTURE 2 HANDOFF AND COMPLAINANT WAS WORKING ARRIVAL,
COMPLAINANT REQUESTED AN EARLY DESCENT AND MR. REARDON CALLED OVER TO
MR. BJERKESTRAND THAT HE DIDN'T GO ALONG WITH THIS AND IF BJERKESTRAND
DIDN'T TAKE ACTION TO STOP REQUESTS FOR EARLY DESCENT HE, REARDON, WAS
GOING TO MAKE AN ISSUE OF THE POINT. MR. BJERKESTRAND STATED THAT IT
WAS PERFECTLY PROPER TO REQUEST EARLY DESCENT BECAUSE, IF AIR SPACE IS
AVAILABLE, EARLY DESCENT GOES TO EXPEDITE THE FLOW OF TRAFFIC. /4/ MR.
BJERKESTRAND WAS CRITICAL OF MR. REARDON'S COMPLAINANTS ABOUT EARLY
DESCENT IN THE TRACON ROOM IN THE MIDDLE OF TRAFFIC.
7. THE RECORD IS CLEAR THAT DELAYS IN RESPONSE BY A CONTROLLER, IN
VIEW OF THE SPEED OF AIRCRAFT, MAY BE TANTAMOUNT TO DENIAL AND THAT A
DELAY OF EVEN SEVEN TO TEN SECONDS MAY READILY AMOUNT TO A DENIAL.
8. ON JUNE 25, 1975, AN INCIDENT OCCURRED WHICH DRAMATICALLY
ILLUSTRATED THE SERIOUS EXTENT OF THE DETERIORATION OF COORDINATION BY
OTHER CONTROLLERS WITH COMPLAINANT, THE RESULTING EFFECT ON AIR SAFETY,
AND AN APPARENT DELIBERATE ATTEMPT BY CONTROLLER REGENHOLD TO CAUSE A
SYSTEMS ERROR. COMPLAINANT WAS WORKING ARRIVAL 2 (AR-2); REGENHOLD WAS
WORKING DEPARTURE 2 (DR-2). /5/ THERE WAS A THUNDERSTORM TO THE
NORTHWEST OF THE AIRPORT, ALONG THE FINAL APPROACH COURSE FOR RUNWAY
12-RIGHT INSIDE THE FINAL APPROACH FIX, WHICH ALSO AFFECTED THE I.L.S.
FOR 12-RIGHT, AND ARRIVING AIRCRAFT, INCLUDING TWA 876, WERE URGENTLY
REQUESTING DEVIATIONS TO AVOID HAVING TO PENETRATE INTO THE THUNDERSTORM
AND LOWER ALTITUDES. /6/ COMPLAINANT SOUGHT PERMISSION TO ENTER AIR
SPACE CONTROLLED BY OTHER CONTROLLERS AND, BECAUSE HE COULD NOT EFFECT
THE COORDINATION, HAD TO PENETRATE SOME OF HIS AIRCRAFT INTO
THUNDERSTORMS. SPECIFICALLY AS TO TWA 876, COMPLAINANT AT 1756:55Z,
REQUESTED 4,000 FIVE WEST OF MARYLAND HEIGHTS. MR. REGENHOLD ON DR-2,
AT 1757Z, RESPONDED "SAY AGAIN", COMPLAINANT REPEATED THE REQUEST; AND,
AT 1757:05Z, MR. REGENHOLD ON DR-2 APPROVED (COMP. EXH. 4). COMPLAINANT
INSTRUCTED TWA 867 TO DESCEND AND MAINTAIN 4,000 REDUCE TO 180. TWA 876
ACKNOWLEDGED AT 1757:00Z. IN THE MEANTIME, MR. REGENHOLD, CONTROLLING
THE DEPARTURE OF FRONTIER 23, HAD PLACED FL 23 AT 5,000 FEET AND HAD
VECTORED FL 23 INTO THE AREA NEEDED, AND APPROVED BY HIM, FOR THE
DESCENT OF TWA 867. COMPLAINANT SAW THE POSITION OF FL 23 ON HIS RADAR
CONSOLE AND, AT 1757:20Z, ORDERED TWA 876 TO MAINTAIN 6,000 FEET. MR.
THOMAS JONES, THEN TEAM SUPERVISOR, TESTIFIED THAT HE SAW COMPLAINANT
STAND UP AND SAY SOMETHING ACROSS THE ROOM AND THEN COMPLAINANT SAID TO
MR. JONES "TELL THOSE GUYS TO KEEP THEIR AIRPLANES AWAY FROM ME"; THAT
HE, JONES, THEN WENT OVER TO DEPARTURE 2 AND TCA-2 AND TOLD THEM THAT
COMPLAINANT WAS USING THE AREA IN THE VICINITY OF LAKE WITH HIS ARRIVALS
AND TO KEEP THEIR AIRPLANES AWAY FROM THERE. MR. JONES RECEIVED AN
ACKNOWLEDGEMENT FROM MR. REGENHOLD. MR. JONES DID NOT RECALL WHETHER
MR. REARDON WAS THEN WORKING TCA-2.
9. SEVERAL DAYS AFTER JUNE 25, 1975, COMPLAINANT HAD A CONVERSATION
WITH MR. REARDON, IN AN OFFICE AT THE FACILITY, ABOUT THE JUNE 25
SITUATION. COMPLAINANT ASKED MR. REARDON WHAT HE THOUGHT ABOUT THE
OPERATION AND MR. REARDON SAID HE DIDN'T THINK THERE WAS ANYTHING WRONG
WITH IT; STATED THAT HE HAD HEARD REPORTS THAT COMPLAINANT WAS A
DANGEROUS CONTROLLER; THAT COMPLAINANT HAD USED PEOPLE TO CHECK OUT IN
THE FACILITY AND SAID THAT " . . . I WOULD GET MINE IN THE END."
10. MR. BJERKESTRAND HAD BECOME TEAM SUPERVISOR OF THE TEAM ON WHICH
COMPLAINANT WORKED ON FEBRUARY 2, 1975, AND ON FEBRUARY 9, 1975, BECAUSE
COMPLAINANT WAS ENCOUNTERING SOME DIFFICULTY IN CERTIFYING ON ARRIVAL
RADAR, EXTENDED COMPLAINANT'S TRAINING TIME AND ASSIGNED HIM TO MESSRS.
RAYFIELD AND KELKER FOR TRAINING. COMPLAINANT BECAME FULLY CERTIFIED IN
EARLY MAY OF 1975.
11. ON JUNE 20, 1975, COMPLAINANT BROUGHT TO THE ATTENTION OF THE
CHIEF, ST. LOUIS TOWER, MR. DON D. EARLY, THE EVENTS OF JUNE 25, 1975.
MR. EARLY MET WITH MR. REARDON ON JULY 7, 1975, AT WHICH TIME MR.
REARDON WAS ACCOMPANIED BY MR. GLENN CHANCE. AT THAT TIME MR. REARDON
IMPLIED THAT LESS THAN STANDARD SEPARATIONS HAD EXISTED ON JUNE 25
(I.E., A SYSTEMS ERROR) BUT WHEN ASKED SPECIFICALLY TOLD MR. EARLY HE
WAS NOT STATING THAT THERE HAD BEEN LESS THAN STANDARD SEPARATIONS OF
AIRCRAFT; THAT IT WAS JUST A BAD OPERATION.
12. WHILE THE MATTERS BROUGHT TO THE ATTENTION OF MR. EARLY BY
COMPLAINANT WERE BEING INVESTIGATED BY MR. EARLY, MR. EARLY RECEIVED A
CALL FROM MR. CHARLES BUMSTEAD, IN THE FAA REGIONAL OFFICE, WHO ADVISED
HIM THAT MR. MAX WINTER, REGIONAL VICE PRESIDENT OF PATCO HAD ASSERTED
THAT THERE WAS A SYSTEMS ERROR ON JUNE 25, 1975, INVOLVING COMPLAINANT
AND THAT FACILITY MANAGEMENT WAS COVERING UP THAT SYSTEMS ERROR. UPON
NOTIFICATION OF MR. WINTER'S CHARGE, MR. EARLY BROADENED THE
INVESTIGATION ALREADY UNDERWAY AND DIRECTED IVAN F. HUNT, OPERATIONS
OFFICER, ST. LOUIS TOWER, TO INVESTIGATE THE CHARGE THAT A SYSTEMS ERROR
INVOLVING COMPLAINANT HAD OCCURRED ON JUNE 25, 1975. MR. HUNT CONDUCTED
AN INVESTIGATION. THE PRECISE DATE THAT MR. HUNT BEGAN THE
INVESTIGATION WAS NOT FIXED BEYOND THE DATE OF HIS CONVERSATION WITH MR.
REGENHOLD WHICH HE STATED WAS "WITHIN A FEW DAYS EITHER SIDE OF 7/9/75".
MR. HUNT STATED THAT HE CONCLUDED THAT THERE WAS NO SYSTEMS ERROR. THE
CONCLUSION FROM HIS REPORT, WHICH WAS NOT INTRODUCED AS AN EXHIBIT, WAS:
"CONCLUSION, MINIMUM HORIZONTAL DISTANCE BETWEEN TWA 876 AND FRONTIER
(23) . . . WAS IN
EXCESS OF WHAT IS REQUIRED."
WHEN PRESSED BY COUNSEL FOR RESPONDENT, MR. HUNT STATED IT WAS HIS
OPINION,
"THAT THERE WAS NO BASIS FOR A RECOMMENDATION THAT WE HAD, IN FACT,
HAD A SYSTEMS ERROR."
MR. HUNT TESTIFIED THAT, ALTHOUGH THE FACILITY TOOK NO ACTION AGAINST
MR. REGENHOLD, THERE WERE ALTERNATIVES AVAILABLE TO HIM BASED ON THE
TRAFFIC SITUATION AT THAT TIME THAT WERE MUCH PREFERABLE TO WHAT HE HAD
DONE. MR. HUNT FURTHER TESTIFIED THAT THE FACT THAT MR. REGENHOLD PUT
HIS AIRCRAFT IN CLOSE PROXIMITY TO THE AREA THAT IS KNOWN AS THE 12
RIGHT DESCENT APPROACH QUADRANT DID ADD COMPLEXITY TO THE SYSTEM AND HE
DIDN'T BELIEVE THAT AIRPLANE NEEDED TO BE THERE AND THAT MR. REGENHOLD
DID IT DELIBERATELY. INDEED, WHEN PRESSED BY COUNSEL FOR RESPONDENT, AS
TO WHETHER MR. REGENHOLD "SET THIS WHOLE THING UP IN ORDER TO PUT THE
SQUEEZE OR IN ORDER TO PRESSURE OR TO IN ANY WAY AFFECT HIS JOB
PERFORMANCE; THAT IS, THE JOB PERFORMANCE OF MR. ANTHAN", MR. HUNT
STATED THAT IN HIS OPINION MR. REGENHOLD DID.
TEAM SUPERVISOR JONES TESTIFIED THAT DEPARTURE 2 AND TCA-2 ARE
PHYSICALLY SIDE BY SIDE AND TRY TO KEEP TRACK OF WHAT EACH OTHER IS
DOING; THAT IT SEEMED STRANGE TO HIM AT THE TIME (JUNE 25, 1975) THAT
ANY CONTROLLER WOULD TURN AN AIRCRAFT GOING OUT THE ST. PAUL GATE TO A
WEST TO NORTHWEST HEADING AND HEAD THE AIRCRAFT DIRECTLY AT NOT ONLY THE
APPROACH QUADRANT BUT DIRECTLY AT WHAT HE HAD TO KNOW WAS A SEVERE
THUNDERSTORM; THAT HE DID NOT PURSUE THE MATTER FURTHER AT THE TIME
BECAUSE HE HAD CONFIDENCE IN MR. REGENHOLD AS A CONTROLLER; BUT THAT HE
FELT MR. REGENHOLD HAD USED VERY POOR JUDGMENT.
MR. ENRIQUE HERMSILLO, A CONTROLLER ON DUTY AT THE TIME OF THE JUNE
25, 1975 INCIDENT, AND WHO SAT NEXT TO MR. REGENHOLD, TESTIFIED THAT
COMPLAINANT NEEDED AIR SPACE, NEEDED TO DEVIATE FROM, AROUND WEATHER AND
HE WAS NOT GIVEN THE FULL COOPERATION WHICH ONES REQUIRES UNDER THOSE
CONDITIONS; THAT HE WAS AWARE OF CONFLICT BETWEEN CERTAIN CONTROLLERS
AS THE RESULT, IN PART, OF ARTICLE 55 WHICH SOME PEOPLE DO NOT CARE TO
USE, AND THAT MR. REGENHOLD WAS GUILTY OF A LACK OF COOPERATION ON JUNE
25, 1975.
13. BY LETTER DATED AUGUST 6, 1975, MR. EARLY ADVISED COMPLAINANT,
IN PART, AS FOLLOWS:
"THIS LETTER RESPONDS TO THE PROBLEM AREAS YOU CALLED TO MY ATTENTION
ON JUNE 30, 1975. AS
A RESULT OF INVESTIGATORY PROCEEDINGS, IT HAS BEEN DETERMINED THAT
THERE IS NO TANGIBLE
EVIDENCE TO CHALLENGE THE PROPRIETY OF CONTROLLER TO CONTROLLER
COOPERATION DEMONSTRATED ON
JUNE 25, 1975. THE VOICE RECORDINGS AND CONTROLLER STATEMENTS
REVIEWED IN THE CONTROLLER
STATEMENTS REVIEWED IN THE PROCESS OF INVESTIGATION CONFIRM THAT
THERE WERE NO SITUATIONS OF
LESS THAN STANDARD SEPARATION. . . .
"TO MY KNOWLEDGE, THE OTHER PROBLEM AREAS THAT YOU BROUGHT TO
MANAGEMENT'S ATTENTION ARE
NOW, IN PART, THE SUBJECT OF A ULP PROCEEDING. IN CONSONANCE WITH
THIS FACT, WE DO NOT
CONSIDER IT APPROPRIATE THAT MANAGEMENT TAKE OFFICIAL ACTION ON
PROBLEM AREAS THAT POSSIBLY
COULD OVERLAP THE SUBJECT OF A ULP PROCEEDING.
" (RES. EXH. 1)
NEVERTHELESS, MR. EARLY TESTIFIED THAT,
"BASED ON THE FACTS THAT WERE PRESENTED TO ME BY THOSE WHO HAVE
TECHNICAL EXPERTISE IN THAT
AREA, I WOULD HAVE TO QUESTION WHY MR. REGENHOLD HANDLED THAT
AIRCRAFT IN THE PARTICULAR
MANNER HE DID, WHETHER IT WAS A CASE OF HIS OWN JUDGMENT OR WHAT I
CANNOT SAY. BUT IT IS NOT
THE NORMAL THING THAT WOULD BE DONE IN A SITUATION LIKE THAT."
15. MR. EARLY TESTIFIED THAT VERBAL COMPLAINTS HAD BEEN MADE TO HIM
BY OTHER CONTROLLERS OF THE LACK OF COOPERATION BECAUSE THEY DID NOT GO
ALONG WITH CERTAIN VIEWS OF THE UNION. MR. MICHAEL LABATY, A CONTROLLER
WITH FAA SINCE 1969 AND AT ST. LOUIS SINCE NOVEMBER, 1974, IS A MEMBER
OF PATCO AND TESTIFIED THAT MEMBERS OF THE UNION, INCLUDING MESSRS.
FERRING AND REARDON, HAD TRIED TO INFLUENCE HIM TO GO ALONG WITH THEIR
LINE OF THINKING; THAT HE HAD SAID, IN A VERY FRIENDLY MANNER, "NO"
BECAUSE HE DIDN'T BELIEVE THEY WERE DOING THE RIGHT THING; AND THAT AS
A RESULT SOME CONTROLLERS TALKED ABOUT HIM IN A VERY DEROGATORY MANNER,
LAUGHED AT HIM, AND REFUSED TO COOPERATE IN AIR TRAFFIC CONTROL BY
DENYING REQUESTS ARBITRARILY. MR. LABATY TESTIFIED THAT TWO CONTROLLERS
WHO HAD DENIED COOPERATION WITH HIM IN AIR TRAFFIC CONTROL WERE DENNIS
SHEERN AND JIM STACK; AND THAT THERE HAD BEEN SEVERAL OTHERS. MR.
LABATY STATED THAT HE HAD BROUGHT THE LACK OF COOPERATION TO THE
ATTENTION OF VARIOUS SUPERVISORS; HAD TALKED TO MR. REARDON; AND IN
THE WINTER OF 1974 WHEN MR. WINTER WAS IN ST. LOUIS, HE CALLED MR.
ROBERT POLI, EXECUTIVE VICE PRESIDENT OF PATCO, TO TALK TO HIM ABOUT
THESE PROBLEMS. MR. LABATY STATED THAT MR. POLI CUT HIM OFF WITH THE
STATEMENT THAT HE, LABATY, WOULD HAVE TO TALK TO MR. REARDON AND WHEN
MR. LABATY TOLD MR. POLI THAT HE HAD ALREADY DISCUSSED THE MATTERS WITH
MR. REARDON, MR. POLI AGAIN REFUSED TO DISCUSS THE MATTER AND SAID HE
WOULD HAVE MR. REARDON SPEAK TO HIM. MR. LABATY STATED THAT HE HAD
NEVER HEARD FROM MR. REARDON. MR. LABATY STATED THAT THE LACK OF
COORDINATION BY OTHER CONTROLLERS DID AFFECT HIS JOB PERFORMANCE AND HIS
ABILITY TO MOVE TRAFFIC; AND THAT HIS CONCERN OVER THIS PROBLEM HAD
RESULTED IN HIS REQUEST FOR RELIEF FROM DUTY ON NUMEROUS OCCASIONS.
MR. WILLIE MOORE, WHO HAS BEEN A CONTROLLER AT ST. LOUIS FOR MORE
THAN 5-1/2 YEARS, TESTIFIED THAT HE WAS AWARE OF THE CONFLICT OVER THE
USE OF ARTICLE 55; THAT HE HAD DISAGREED WITH CERTAIN MEMBERS OF PATCO
AND THEY CHOSE NOT TO SPEAK TO HIM FOR A CERTAIN PERIOD.
16. THE RECORD ALSO SHOWS THAT SUPERVISOR THOMAS JONES EXPERIENCED
SEVERE LACK OF COORDINATION AND COOPERATION BY OTHER CONTROLLERS DURING
HIS TRAINING AND, AS A RESULT, HE VOLUNTARILY WITHDREW FROM THE TRAINING
PROGRAM AT THE ST. LOUIS TOWER AND TRANSFERRED TO ANOTHER FACILITY.
17. AFTER COMPLAINANT FILED HIS CHARGE IN THIS MATTER, HE TESTIFIED
THAT LACK OF COOPERATION BY SOME OTHER CONTROLLERS INTENSIFIED; THAT HE
DIDN'T BELIEVE HE HAD WORKED A SINGLE SHIFT DURING WHICH SOME CONTROLLER
HAD NOT REFUSED COOPERATION AS MANIFESTED BY NOT APPROVING REQUESTS FOR
EARLY DESCENTS OR USING OTHER PEOPLE'S AIR SPACE OR DELAY ON
COORDINATION LINES. MESSRS. REARDON, CHANDLER, FERRING, STACK,
REGENHOLD, BAUER AND RAUGH FORMALLY ADVISED MANAGEMENT THAT THEY WOULD
WORK WITH COMPLAINANT ONLY UNDER PROTEST. MR. REARDON INFORMED MR.
JONES THAT HE WOULD WORK WITH COMPLAINANT ONLY UNDER PROTEST BUT SAID HE
WAS NOT INVOKING ARTICLE 55. MR. CHANDLER'S RESPONSE TO MR. EARLY WAS
THAT COMPLAINANT DID NOT GO ALONG WITH HIS OTHER CONTROLLERS-STABBED HIS
FELLOW CONTROLLERS IN THE BACK. MR. BAUER TOLD MR. EARLY HE PROTESTED
THE UNDESIRABILITY OF HAVING COMPLAINANT AND MR. REARDON WORKING IN THE
OPERATION QUARTERS AT THE SAME TIME; THAT IT PUT A STRAIN ON THE
FACILITY. MR. RAUGH SIMPLY TOLD MR. EARLY HE PROTESTED HAVING TO WORK
IN THE QUARTERS WHEN COMPLAINANT WAS ON DUTY. IN DECEMBER, 1974, OR
JANUARY, 1975, MR. LABATY TALKED TO MR. HUNT ABOUT THE DIFFICULTY OF
WORKING WITH COMPLAINANT WHEN MESSRS. FERRING AND REARDON WERE ON THE
SAME SHIFT.
18. COMPLAINANT, AT THE TIME OF THE HEARING, HAD BEEN SELECTED FOR A
SUPERVISORY POSITION OUTSIDE THE ST. LOUIS FACILITY; MR. REARDON IS NOW
MEDICALLY DISQUALIFIED AND CAN NO LONGER CONTROL TRAFFIC; MR. RAUGH IS
INVOLVED IN THE SECOND CAREER PROGRAM (I.E., NO LONGER A CONTROLLER);
AND MR. REGENHOLD IS A CONTROLLER IN A LEVEL 2 VFR TOWER AT ORLANDO,
FLORIDA.
CONCLUSIONS
1. SECTION 19(B)(1) ALLEGATIONS.
SECTION 19(B)(1) OF THE ORDER IS IDENTICAL TO SECTION 19(A)(1),
EXCEPT, OF COURSE, THAT 19(B)(1) APPLIES TO "A LABOR ORGANIZATION" WHILE
19(A)(1) APPLIES TO "AGENCY MANAGEMENT" AND PROVIDES AS FOLLOWS:
"(B) A LABOR ORGANIZATION SHALL NOT-
"(1) INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE
OF HIS RIGHTS ASSURED
BY THIS ORDER;"
THE RIGHTS ASSURED BY THIS ORDER INCLUDE THE RIGHTS SET FORTH IN
SECTION 1(A), IN PART, AS FOLLOWS"
"SECTION 1. POLICY (A) 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. . . . "
THE RECORD SHOWS A PATTERN OF CONDUCT BY INDIVIDUAL CONTROLLERS,
INCLUDING THE OFFICERS OF LOCAL 352 AND PATCO FACILITY REPRESENTATIVES.
THE NATURE OF THE CONDUCT IS DISCUSSED HEREINAFTER. A LABOR
ORGANIZATION, LIKE AN AGENCY, AN ACTIVITY, OR A CORPORATION, ACTS ONLY
THROUGH ITS AGENTS AND A PRINCIPAL MAY BE RESPONSIBLE FOR THE ACTS OF
HIS AGENT WITHIN THE SCOPE OF THE AGENT'S AUTHORITY, EVEN THOUGH THE
PRINCIPAL HAS NOT SPECIFICALLY AUTHORIZED OR, INDEED, MAY HAVE
SPECIFICALLY FORBIDDEN THE ACT IN QUESTION. UNITED FURNITURE WORKERS OF
AMERICA, ET AL., 81 NLRB 886, 23 LRRM 1424(1949). PATCO AND/OR ITS
LOCAL 352 MAY BE LIABLE AS A PRINCIPAL; IN ADDITION, PATCO, AS THE
EXCLUSIVE BARGAINING REPRESENTATIVE, MAY BE LIABLE FOR VIOLATION OF ITS
OBLIGATION TO SERVE THE INTEREST OF ALL MEMBERS OF A DESIGNATED
BARGAINING UNIT WITHOUT HOSTILITY OR DISCRIMINATION, WITH COMPLETE GOOD
FAITH AND WITHOUT ARBITRARY CONDUCT.
A) DUTY OF FAIR REPRESENTATION
AS SPECIFICALLY NOTED ON REPEATED OCCASIONS, THE ORDER DIFFERS IN
MANY ESSENTIAL RESPECTS FROM THE NATIONAL LABOR RELATIONS ACT (HEREAFTER
"ACT"); NEVERTHELESS, IN MANY AREAS THE ORDER REFLECTS THE SAME BASIC
LABOR POLICY. SECTION 1(A) OF THE ORDER, FOR EXAMPLE, LIKE SECTION 7 OF
THE ACT, INSURES EMPLOYEES THE RIGHT TO SELF-ORGANIZATION, TO FORM, JOIN
OR ASSIST LABOR ORGANIZATIONS, AS WELL AS THE RIGHT TO REFRAIN FROM ANY
SUCH ACTIVITY; THE PROSCRIPTION OF 19(B)(1) OF THE ORDER IS
SUBSTANTIALLY IDENTICAL IN EFFECT TO SECTION 8(B)(1)(A) OF THE ACT; AND
THE ORDER, LIKE THE ACT, PROVIDES FOR EXCLUSIVE REPRESENTATION IN
DESIGNATED BARGAINING UNITS. IT HAS LONG BEEN RECOGNIZED THAT THE GRANT
OF EXCLUSIVE REPRESENTATION TO A UNION IMPOSES QUITE DIFFERENT
OBLIGATIONS ON THE UNION THAN WOULD ATTACH IN A SIMPLE AGENCY
RELATIONSHIP. THIS WAS SUCCINCTLY STATED BY THE SUPREME COURT, IN VACA
V. SIPES, 386 U.S. 171(1967) AS FOLLOWS:
"UNDER THIS DOCTRINE (OF FAIR REPRESENTATION), THE EXCLUSIVE AGENT'S
STATUTORY AUTHORITY TO
REPRESENT ALL MEMBERS OF A DESIGNATED UNIT INCLUDES A STATUTORY
OBLIGATION TO SERVE THE
INTERESTS OF ALL MEMBERS WITHOUT HOSTILITY OR DISCRIMINATION TOWARD
ANY, TO EXERCISE ITS
DISCRETION WITH COMPLETE GOOD FAITH AND HONESTY, AND TO AVOID
ARBITRARY CONDUCT. HUMPHREY
V. MOORE, 375 U.S.AT 342, 84 S.CT. AT 367." (386 U.S.AT 177).
ALTHOUGH THE SUPREME COURT SPOKE IN TERMS OF AN AGENT'S STATUTORY
REPRESENTATION AUTHORITY UNDER THE ACT, THE DOCTRINE APPLIES WITH EQUAL
FORCE TO THE EXCLUSIVE AGENT'S AUTHORITY UNDER THE ORDER.
UNTIL ITS DECISION IN MIRANDA FUEL COMPANY, INC., 140 NLRB 181(1962),
THE BOARD HAD NOT VIEWED A VIOLATION BY A UNION OF ITS DUTY OF FAIR
REPRESENTATION AS AN UNFAIR LABOR PRACTICE IN THE ABSENCE OF A SHOWING
THAT THE BREACH OF DUTY ENCOURAGED OR DISCOURAGED UNION MEMBERSHIP. IN
ITS MIRANDA FUEL DECISION, SUPRA, THE BOARD MAJORITY HELD THAT IT WAS AN
UNFAIR LABOR PRACTICE FOR A BARGAINING REPRESENTATIVE TO ACT IN AN
UNREASONABLE, ARBITRARY, OR INVIDIOUS MANNER IN REGARD TO AN EMPLOYEE.
ALTHOUGH ENFORCEMENT WAS DENIED BY THE SECOND CIRCUIT, NLRB V. MIRANDA
FUEL CO., 326 F.2D 172(1963), IT APPEARS, NOW, TO HAVE WON THE DAY.
SEE, KAJ KLING V. NLRB, 503 F.2D 1044 (9TH CIR. 1085); VACA V. SIPES,
SUPRA. INDEED, THE SECOND CIRCUIT, IN NLRB V. LOCAL 485, ELECTRICAL,
RADIO & MACHINE WORKERS, 454 F.2D 17(1972), ALTHOUGH IT NOTED THAT,
" . . . WE ARE NOT FORCED TO RECONSIDER THIS COURT'S CONTROVERSIAL
DISPOSITION OF THE
BOARD'S BROADER THEORY IN MIRANDA FUEL CO., 140 NLRB 181(1962),
ENFORCEMENT DENIED, 326 F.2D
172 (2ND CIR. 1963), THAT ANY ARBITRARY OR INVIDIOUS ACTION WHICH
VIOLATES A UNION'S DUTY OF
FAIR REPRESENTATION IS PROHIBITED BY SECTION 8(B)(1)(A)." (454 F.2D
AT 21, N. 6) THE COURT HELD THAT WHERE A UNION'S ACTION IS CALCULATED
RETALIATION AGAINST AN EMPLOYEE FOR THE EXERCISE OF A RIGHT CLEARLY
PROTECTED BY THE ACT, THE UNION IS GUILTY OF AN UNFAIR LABOR PRACTICE
FOR ITS BREACH OF ITS DUTY OF FAIR REPRESENTATION. THE COURT STATED, IN
PART, AS FOLLOWS:
"THE BOARD FOUND THAT BARCLAY'S CRITICISM OF THE LOCAL'S POSITION ON
THE OVERTIME ISSUE WAS
PROTECTED ACTIVITY UNDER SECTION 7, 29 U.S.C. 157, AND THAT THE
LOCAL'S REFUSAL TO PROCESS HIS
WRONGFUL DISCHARGE GRIEVANCE BECAUSE OF THE CRITICISM WAS AN ATTEMPT
TO 'RESTRAIN OR COERCE
. . . EMPLOYEES IN THE EXERCISE OF RIGHTS GUARANTEED IN SECTION (7) .
. . ' 29
U.S.C. 158(B)(1)(A). WE AGREE WITH THE BOARD'S CONCLUSION THAT THIS
WAS AN UNFAIR LABOR
PRACTICE. . . . " (454 F.2D AT 21).
WHETHER ANY ARBITRARY OR INVIDIOUS ACTION IN VIOLATION OF A UNION'S
DUTY OF FAIR REPRESENTATION IS AN UNFAIR LABOR PRACTICE IN VIOLATION OF
SECTION 8(B)(1)(A) OF THE ACT, AT LEAST THE VIOLATION OF FAIR
REPRESENTATION CONSTITUTES A VIOLATION OF 8(B)(1)(A) OF THE ACT WHEN THE
UNION'S ACTION IS CALCULATED RETALIATION AGAINST AN EMPLOYEE FOR THE
EXERCISE OF A RIGHT CLEARLY PROTECTED BY THE ACT. FOR THE PURPOSE OF
THE PRESENT CASE, IT IS UNNECESSARY TO GO FURTHER. BECAUSE THE RIGHTS
AND OBLIGATIONS UNDER THE ORDER ARE THE SAME IN THIS RESPECT AS THE
CORRESPONDING RIGHTS AND OBLIGATIONS UNDER THE ACT, A VIOLATION OF A
UNION'S DUTY OF FAIR REPRESENTATION AS CALCULATED RETALIATION AGAINST AN
EMPLOYEE FOR THE EXERCISE OF A RIGHT CLEARLY PROTECTED BY THE ORDER IS
AN UNFAIR LABOR PRACTICE IN VIOLATION OF SECTION 19(B)(1) OF THE ORDER.
IN A SENSE, THE SAME CONDUCT MAY BE DIRECTLY REMEDIED UNDER SECTION
19(B)(1); BUT RECOGNITION OF THE DUTY OF FAIR REPRESENTATION ADDS THE
SIGNIFICANT ASPECT THAT THE EXCLUSIVE AGENT'S AUTHORITY UNDER THE ORDER
TO REPRESENT ALL MEMBERS OF A DESIGNATED BARGAINING UNIT CARRIES WITH IT
THE OBLIGATION TO ABSTAIN FROM HOSTILITY OR DISCRIMINATION TOWARD ANY,
AND REACHES THE REFUSAL OF A UNION TO ACT, AT LEAST WHERE THE VIOLATION
OF THE DUTY OF FAIR REPRESENTATION IS AN ATTEMPT TO RESTRAIN OR COERCE
EMPLOYEES IN THE EXERCISE OF RIGHTS GUARANTEED BY THE ORDER, AND NOT
MERELY OVERT ACTS OF THE UNION. IT FURTHER IS SIGNIFICANT IN
ESTABLISHING UNION RESPONSIBILITY, IN THAT A UNION'S LIABILITY MAY FLOW,
NOT MERELY, OR EVEN PRIMARILY, FROM RATIFICATION OF CONDUCT OF ITS
AGENTS, BUT DIRECTLY FROM THE UNION'S OWN VIOLATION OF ITS DUTY OF FAIR
REPRESENTATION.
B) PARTIES.
THE COMPLAINT NAMED "PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION AFFILIATED WITH M.E.B.A. (AFL-CIO)." IN ADDITION, THE
COMPLAINT CHARGED PATCO AND ITS REPRESENTATIVE, MR. DENNIS M. REARDON,
LOCAL REPRESENTATIVE OF PATCO, WITH VIOLATIONS OF SECTIONS 19(B)(1) AND
(3) OF THE ORDER. THE COMPLAINT ALSO IDENTIFIED MR. REARDON AS
PRESIDENT OF LOCAL PATCO. AT THE COMMENCEMENT OF THE HEARING, COUNSEL
FOR RESPONDENT INQUIRED WHO WERE THE CHARGED PARTIES AND COUNSEL FOR
COMPLAINANT RESPONDED THAT THE CHARGED PARTIES WERE: "MR. REARDON, IN
HIS CAPACITY AS PRESIDENT OF THE LOCAL PATCO ORGANIZATION AGAINST THE
LOCAL PATCO AND AGAINST THE INTERNATIONAL". /7/
THE THRESHOLD QUESTION IS WHETHER A COMPLAINT WHICH NAMES ONLY PATCO
IS SUFFICIENT IN ORDER TO REMEDY AN ALLEGED UNFAIR LABOR PRACTICE
COMMITTED BY AN UNNAMED LOCAL UNION. NO CASE INVOLVING THE SUFFICIENCY
OF A COMPLAINT AGAINST A LABOR ORGANIZATION HAS BEEN CALLED TO MY
ATTENTION NOR HAVE I FOUND ANY AUTHORITY DIRECTLY IN POINT; HOWEVER,
THE MATTER HAS ARISEN IN CONNECTION WITH COMPLAINTS AGAINST AGENCIES
AND, AS THE BASIC PRINCIPLES ARE THE SAME, THE SAME RESULT SHOULD
PERTAIN. IN ESSENCE, THE QUESTION IS WHETHER YOU CAN GO TOO HIGH. ON
THE ONE HAND, IF A COMPLAINT NAMES ONLY A SUBORDINATE ACTIVITY, NEITHER
THE ACTIVITY NOR THE AGENCY IS A PARTY. IOWA STATE AGRICULTURAL
STABILIZATION AND CONSERVATION OFFICE, DEPARTMENT OF AGRICULTURE, A/SLMR
NO. 453 (1974). ON THE OTHER HAND, IF THE COMPLAINT NAMES ONLY THE
AGENCY BUT CLEARLY AND CONCISELY SETS FORTH THE ALLEGATION ASSERTED TO
HAVE CONSTITUTED THE VIOLATION AT AN ACTIVITY AND RESPONDENT, BY ITS
RESPONSE TO THE COMPLAINT DEMONSTRATES THAT IT WAS FULLY ADVISED OF THE
VIOLATION ALLEGED, THEN THE UNFAIR LABOR PRACTICE AGAINST THE ACTIVITY
MAY BE REMEDIED EVEN THOUGH THE ACTIVITY WAS NOT NAMED IN THE COMPLAINT.
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, BROOKHAVEN
SERVICE CENTER AND NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER
099, CASE NO. 30-6126(CA) (1976).
THERE IS NO QUESTION, OF COURSE, THAT THE COMPLAINT HEREIN IS
SUFFICIENT AS TO PATCO WHICH IS THE NAMED LABOR ORGANIZATION. PATCO IS
THE CERTIFIED BARGAINING REPRESENTATIVE OF AIR TRAFFIC CONTROLLERS
EMPLOYED BY THE FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION (HEREINAFTER FAA) IN A NATIONWIDE UNIT, WITH CERTAIN
EXCEPTIONS NOT RELEVANT (SEE, FEDERAL AVIATION NO. 173 (1972), AND HAS
ENTERED INTO A COLLECTIVE BARGAINING AGREEMENT WITH FAA WHICH IS
NATIONWIDE IN SCOPE (SEE, 2 GOV. EMPLOYEE REL. REPORT 81: 6501). WHEN
VIEWED IN PERSPECTIVE, THE COMPLAINT AS FILED, AGAINST PATCO AND DENNIS
M. REARDON, LOCAL REPRESENTATIVE OF PATCO, BECOMES QUITE LOGICAL. PATCO
IS THE CERTIFIED BARGAINING REPRESENTATIVE FOR THE ST. LOUIS TOWER,
PATCO ENTERED INTO THE COLLECTIVE BARGAINING AGREEMENT, AND MR. REARDON
WAS THE DESIGNATED PRINCIPAL REPRESENTATIVE OF PATCO AT THE ST. LOUIS
TOWER. IN ADDITION, MR. REARDON WAS, INTER ALIA, ALSO PRESIDENT OF
PATCO LOCAL 352. THE COMPLAINT SET FORTH THE ALLEGATION ASSERTED TO
HAVE CONSTITUTED THE VIOLATION, CHARGED DENNIS M. REARDON, LOCAL
REPRESENTATIVE OF PATCO, AS WELL AS PATCO, WITH VIOLATIONS OF SECTIONS
19(B)(1) AND (3) OF THE ORDER. RESPONDENT DEMONSTRATED THAT IT WAS
FULLY ADVISED OF THE VIOLATION ALLEGED AND OF THE RELATIONSHIP OF ITS
LOCAL UNION 352 TO THE VIOLATIONS ALLEGED. ACCORDINGLY, BY ANALOGY TO
DEPARTMENT OF THE TREASURY, SUPRA, I CONCLUDE THAT THE COMPLAINT AGAINST
PATCO IS SUFFICIENT TO REACH, AND TO PERMIT THE REMEDY OF, ALLEGED
UNFAIR LABOR PRACTICES BY A CONSTITUENT LOCAL UNION. ACCORDINGLY,
RESPONDENT'S MOTION TO DISMISS IS DENIED.
C) INTERFERENCE, RESTRAINT OR COERCION
RESPONDENTS IN THEIR BRIEF DO NOT DISCUSS THE 19(B)(1) ALLEGATION;
RATHER, THEIR BRIEF IS DIRECTED WHOLLY TOWARD THE 19(B)(3) ALLEGATION.
SIGNIFICANTLY, HOWEVER, RESPONDENTS' BRIEF STATES,
"RESPONDENTS MAY WELL HAVE IMPEDED HIS WORK PERFORMANCE BY NOT GIVING
HIM EARLY DESCENTS,
FOR EXAMPLE, AS HE REQUESTED; MAY WELL HAVE IMPEDED HIS PRODUCTIVITY
BY DELAYING COORDINATION
WITH HIM; MAY WELL HAVE HINDERED THE DISCHARGE OF HIS DUTIES OWED AS
A CONTROLLER BY CALLING
HIM A 'DANGEROUS CONTROLLER,' BY NOT TALKING WITH HIM, BY LEAVING HIM
'ALONE IN THE
CROWD.'" (RESPONDENTS' BRIEF PP. 4-5)
WHETHER RESPONDENTS' FAILURE TO CONTROVERT THE 19(B)(1) ALLEGATION
IMPLIES CONCESSION OF A 19(B)(1) VIOLATION OR WHETHER RESPONDENTS'
CONCESSIONS AS SET FORTH ABOVE CONSTITUTE AN ADMISSION, THE RECORD
SHOWS, IN ANY EVENT, A PERVASIVE PATTERN OF CONDUCT BY A NUMBER OF NAMED
AND IDENTIFIED INDIVIDUALS DIRECTED AGAINST COMPLAINANT, AND OTHER
CONTROLLERS, WHICH WAS INTENDED TO BRING PRESSURE ON COMPLAINANT, AND
OTHER CONTROLLERS, TO FORCE THEM TO SUPPORT CERTAIN UNION OBJECTIVES.
THE CONCERTED SHUNNING OF COMPLAINANT, AND OTHER CONTROLLERS, WAS,
ITSELF, A FORM OF RESTRAINT OR COERCION. SUCH CONCERTED ACTIVITY
PERHAPS HAS REACHED ITS ZENITH IN MITING, SEE, GENERICH V.
SWARTZENTRUBER, 22 OHIO N.P.N.S. 1, 3, 13, AND THE FACT THAT MR. MOORE
STATED THAT HE DID NOT LET THE SAME THINGS "PHASE ME TOO MUCH" DOES NOT
ALTER IN THE SLIGHTEST THE CONCLUSION THAT SUCH CONDUCT CONSTITUTED
RESTRAINT AND COERCION WITHIN THE MEANING OF THE ORDER. THE CONCERTED
HINDERANCE OF THE DISCHARGE OF THE DAY OF CONTROLLERS BY DELAYING OR
DENYING COORDINATION WAS INTENDED TO RESTRAIN OR COERCE COMPLAINANT, AND
OTHER CONTROLLERS, IN THE EXERCISE OF THEIR RIGHT UNDER THE ORDER TO
REFRAIN FROM ASSISTING A LABOR ORGANIZATION. DELIBERATE ACTION INTENDED
TO IMPEDE WORK PERFORMANCE IS A FORM OF INTERFERENCE, RESTRAINT OR
COERCION WITHIN THE MEANING OF SECTION 19(B)(1).
D) RESPONSIBILITY OF LOCAL 352
THE RECORD SHOWS THAT MR. REARDON ADVOCATED, BOTH AS PRESIDENT OF
LOCAL 352 AND AS PRINCIPAL REPRESENTATIVE OF PATCO, CERTAIN POSITIONS,
INCLUDING THE INVOCATION OF ARTICLE 55 OF THE PATCO AGREEMENT;
OPPOSITION TO THE COMBINING OF POSITIONS, PRINCIPALLY THROUGH THE
INVOCATION OF ARTICLE 55; GREATER SEPARATION OF AIRCRAFT; LIMITATION
ON EARLY DESCENT; ETC., AND THAT WHEN COMPLAINANT, AND OTHER
CONTROLLERS, DECLINED TO SUPPORT THESE UNION POSITIONS THE VARIOUS
INDIVIDUAL ACTS OF INTERFERENCE, RESTRAINT OR COERCION IMMEDIATELY
FOLLOWED. MR. REARDON, PRESIDENT OF LOCAL 352 JOINED IN THESE ACTS.
THE VICE PRESIDENT OF LOCAL 352 DURING MR. REARDON'S TERM AS PRESIDENT
AND MR. REARDON'S SUCCESSOR AS PRESIDENT OF LOCAL 352, MR. FERRING, THE
SECRETARY-TREASURER OF LOCAL 352, MR. CHANDLER, AND A TEAM, OR CREW,
REPRESENTATIVE, MR. REGENHOLD, ALL JOINED IN THESE ACTS AS DID VARIOUS
OTHER NAMED CONTROLLERS. THE IMMEDIATE APPLICATION OF THESE TACTICS BY
THE OFFICERS OF LOCAL 352 AND BY OTHER MEMBERS WHO FOLLOWED THEIR LEAD
CLEARLY DEMONSTRATED CONCERT OF ACTION AND THE RECORD SHOWS THAT THE
INDIVIDUALS, NAMELY MESSRS. REARDON, FERRING, AND CHANDLER, WERE ACTING
WITHIN THE SCOPE OF THEIR AUTHORITY AS OFFICERS OF LOCAL 352, AND,
ACCORDINGLY, THE ACTS OF INTERFERENCE, RESTRAINT OR COERCION WHICH THEY
COMMITTED, DIRECTED, OR INCITED BECAME THE ACTS OF THEIR PRINCIPAL,
LOCAL 352, AND LOCAL 352 THEREBY VIOLATED SECTION 19(B)(1) OF THE ORDER.
MESSRS. REARDON, CHANDLER, FERRING, STACK, REGENHOLD, BAUER AND RAUGH
PROMPTLY, AFTER COMPLAINANT FILED HIS CHARGE IN THIS PROCEEDING FORMALLY
PROTESTED TO FAA WORKING WITH COMPLAINANT FOR THE STATED REASON THAT
COMPLAINANT DID NOT GO ALONG WITH HIS FELLOW CONTROLLERS AND HAD FILED A
CHARGE UNDER THE ORDER. SUCH ACTION INTERFERRED WITH COMPLAINANT'S
RIGHT TO THE ASSURED AND UNIMPAIRED ACCESS TO THE COMPLAINT PROCEDURE OF
THE ORDER. ALTHOUGH THESE ACTS OCCURRED AFTER THE CHARGE HEREIN WAS
FILED AND, APPARENTLY, AFTER THE COMPLAINT HEREIN WAS FILED, BECAUSE
THIS CONDUCT WAS PART OF THE CONTINUING ACTS OF INTERFERENCE, RESTRAINT
AND COERCION ALLEGED IN THE COMPLAINT, THESE MATTERS WERE FULLY
LITIGATED, AND COMPLAINANT'S MOTION AT THE CLOSE OF THE HEARING TO AMEND
THE COMPLAINT TO CONFORM TO THE PROOF WAS GRANTED, I DEEM IT PROPER TO
CONSIDER THESE CONTINUING VIOLATIONS OF SECTION 19(B)(1) OF THE ORDER.
MR. FERRING WAS THEN PRESIDENT OF LOCAL 352 AND ACTED WITHIN THE SCOPE
OF HIS AUTHORITY AS PRESIDENT OF LOCAL 352. THE ACTION OF THE PRESIDENT
OF LOCAL 352 AND THE CONCERTED PARTICIPATION THEREIN BY MESSRS. REARDON,
CHANDLER, STACK, REGENHOLD, BAUER AND RAUGH, ALONE, MAKES LOCAL 352
RESPONSIBLE FOR THE ACTS OF ITS AGENTS AND LOCAL 352 THEREBY INTERFERRED
WITH, RESTRAINED AND COERCED UNIMPAIRED ACCESS TO THE COMPLAINT
PROCEDURES OF THE ORDER IN VIOLATION OF SECTION 19(B)(1) OF THE ORDER.
CF. NATIONAL LABOR RELATIONS BOARD, REGION 17 AND NATIONAL LABOR
RELATIONS BOARD, A/SLMR NO. 671 (1976). INTERFERENCE WITH COMPLAINANT'S
RIGHT TO THE ASSURED AND UNIMPAIRED ACCESS TO THE COMPLAINT PROCEDURES
OF THE ORDER WAS, MOREOVER, A PART OF THE CONTINUING PATTERN OF
INTERFERENCE, RESTRAINT OR COERCION BY THE OFFICERS OF LOCAL 352, AND
OTHER IDENTIFIED CONTROLLERS WHO JOINED WITH THEM IN CONCERTED ACTION,
TO INTERFERE WITH THE RIGHTS OF COMPLAINANT, AND OTHER CONTROLLERS, IN
VIOLATION OF SECTION 19(B)(1) OF THE ORDER.
E) RESPONSIBILITY OF PATCO
AS NOTED ABOVE, MR. REARDON OCCUPIED A DUAL POSITION. HE WAS BOTH
PRESIDENT OF LOCAL 352 AND THE FACILITY REPRESENTATIVE OF PATCO. MR.
FERRING SUCCEEDED MR. REARDON BOTH AS PRESIDENT OF LOCAL 352 AND AS
FACILITY REPRESENTATIVE OF PATCO, ALTHOUGH THE RECORD DOES NOT INDICATE
WHEN MR. REARDON CEASED TO BE FACILITY REPRESENTATIVE OF PATCO AND/OR
THE DATE MR. FERRING BECAME FACILITY REPRESENTATIVE OF PATCO. /8/
MR. REARDON ACTED IN HIS CAPACITY AS FACILITY REPRESENTATIVE IN
ADVOCATING THE UNION OBJECTIVES OR POSITIONS INCLUDING INVOCATION OF
ARTICLE 55 OF THE PATCO AGREEMENT, SEPARATIONS, EARLY DESCENT, COMBINING
OF POSITIONS, ETC., AND HE ACTED WITHIN THE SCOPE OF HIS AUTHORITY AS
FACILITY REPRESENTATIVE WHEN HE COMMITTED, DIRECTED, OR INCITED THE ACTS
OF INTERFERENCE, RESTRAINT OR COERCION, AS SET FORTH ABOVE IN HIS
CAPACITY AS PRESIDENT OF LOCAL 352. THE SAME WAS TRUE, OF COURSE, OF
MR. FERRING WHEN HE BECAME FACILITY REPRESENTATIVE OF PATCO. AS AGENTS
OF PATCO ACTING WITHIN THE SCOPE OF THEIR AUTHORITY THEIR ACTS BECAME
THE ACTS OF THEIR PRINCIPAL, PATCO, AND THE SAME ACTS WHICH CONSTITUTE
INTERFERENCE, RESTRAINT AND COERCION BY VIRTUE OF THEIR CAPACITY AS
AGENTS OF LOCAL 352 ALSO CONSTITUTE INTERFERENCE, RESTRAINT AND
COERCION, WITHIN THE SCOPE OF THEIR AUTHORITY AS AGENTS FOR PATCO, FOR
WHICH THEIR PRINCIPAL, PATCO, IS LIABLE.
MR. REGENHOLD'S ACTION ON JUNE 25, 1975, STANDING ALONE, MIGHT NOT
MAKE PATCO LIABLE FOR HIS ACTION; BUT HIS ACTION CANNOT BE VIEWED IN
VACUO. FIRST, IT WAS PART AND PARCEL OF THE CONCERTED ACTS OF
INTERFERENCE, RESTRAINT AND COERCION DIRECTED AGAINST COMPLAINANT.
SECOND, WHEN COMPLAINANT DISCUSSED THE INCIDENT WITH MR. REARDON, AS
PRESIDENT OF LOCAL 352 AND AS PATCO FACILITY REPRESENTATIVE, MR. REARDON
WHO HAD BEEN PRESENT IN THE TRACON ROOM ON JUNE 25, 1975, STATED THAT HE
SAW NOTHING WRONG WITH THE OPERATION; TOLD COMPLAINANT HE HAD HEARD
OTHER CONTROLLERS STATE THAT HE (COMPLAINANT) WAS A DANGEROUS
CONTROLLER; AND CONCLUDED WITH THE THREAT THAT COMPLAINANT WOULD GET
HIS IN THE END. THIRD, IN A DISCUSSION WITH FACILITY CHIEF EARLY ON
JULY 7, MR. REARDON /9/ INTIMATED THAT A SYSTEMS ERROR INVOLVING
COMPLAINANT HAD OCCURRED ON JUNE 25, 1975, ALTHOUGH HE TOLD MR. EARLY,
WHEN ASKED IF HE WERE CHARGING A SYSTEMS ERROR, THAT HE WAS NOT
ASSERTING THAT AN IMPROPER SEPARATION HAD OCCURRED. FOURTH, MR.
REARDON, NEVERTHELESS, CHARACTERIZED THE JUNE 25 OPERATION AS A BAD
OPERATION. FIFTH, MR. WINTER, REGIONAL VICE PRESIDENT OF PATCO DID
CHARGE THAT HE WAS IN POSSESSION OF INFORMATION THAT A SYSTEMS ERROR
INVOLVING COMPLAINANT HAD OCCURRED ON JUNE 25, AND THAT FACILITY
MANAGEMENT WAS ATTEMPTING TO COVER IT UP.
IT IS APPARENT THAT MR. WINTER, ON BEHALF OF PATCO, RELIED UPON
INFORMATION FURNISHED BY ITS AGENTS AND I HAVE DRAWN THE INFERENCE, FROM
ALL THE TESTIMONY AND EVIDENCE, THAT THE SOURCE RELIED UPON WAS MR.
REARDON. THE RECORD SHOWS THAT THE INCIDENT OF JUNE 25 WAS A DELIBERATE
ACT BY MR. REGENHOLD DESIGNED TO GREATLY COMPLICATE COMPLAINANT'S
PERFORMANCE OF HIS DUTY AS A CONTROLLER, IF NOT, INDEED, A DELIBERATE
ATTEMPT TO CAUSE A SYSTEMS ERROR, WAS PART OF THE CONCERTED ACTIVITY BY
THE OFFICERS OF LOCAL 352 AND THE FACILITY REPRESENTATIVES OF PATCO TO
INTERFERE WITH, RESTRAIN AND COERCE COMPLAINANT IN THE EXERCISE OF HIS
RIGHTS UNDER THE ORDER; THAT PATCO, THROUGH MR. WINTER, ITS EXECUTIVE
VICE PRESIDENT, TOOK ACTION WHICH RESULTED IN A CHARGE THAT COMPLAINANT
HAD BEEN INVOLVED IN A SYSTEMS ERROR, WHICH FURTHER INTERFERRED WITH,
RESTRAINED, AND COERCED COMPLAINANT, AS SUCH CHARGE WAS WITHOUT
JUSTIFICATION AND WAS IN BAD FAITH /10/ AS PART OF THE PLAN AND DESIGN
TO INTERFERE WITH, RESTRAIN AND COERCE COMPLAINANT. ACCORDINGLY, THE
ACTS OF INTERFERENCE, RESTRAINT OR COERCION WHICH MESSRS. REARDON,
REGENHOLD, FERRING AND WINTER COMMITTED, DIRECTED, OR INCITED WITHIN THE
SCOPE OF THEIR AUTHORITY AS AGENTS OF PATCO BECAME THE ACTS OF THEIR
PRINCIPAL, PATCO, AND PATCO THEREBY VIOLATED SECTION 19(B)(1) OF THE
ORDER.
WHOLLY APART FROM ITS RESPONSIBILITY AS A PRINCIPAL, PATCO, AS THE
EXCLUSIVE BARGAINING REPRESENTATIVE, HAD A DUTY TO REPRESENT ALL MEMBERS
OF THE BARGAINING UNIT WITHOUT HOSTILITY OR DISCRIMINATION AND TO AVOID
ARBITRARY CONDUCT. THE RECORD SHOWS THAT PATCO HAD KNOWLEDGE, BOTH
THROUGH ITS FACILITY REPRESENTATIVE AND THROUGH ITS EXECUTIVE VICE
PRESIDENT, MR. POLI, OF THE ACTS OF IMPEDING WORK PERFORMANCE OF
CONTROLLERS TO FORCE OR COMPEL CONTROLLERS TO SUPPORT POSITIONS OF THE
UNION. THE RECORD SHOWS THAT MR. POLI CUT MR. LABATY OFF AND INSISTED
HE DISCUSS THE MATTER WITH MR. REARDON EVEN AFTER MR. LABATY TOLD MR.
POLI THAT HE HAD ALREADY DISCUSSED THE MATTER WITH MR. REARDON.
ALTHOUGH MR. POLI STATED THAT HE WOULD HAVE MR. REARDON, CONTACT MR.
LABATY FURTHER, MR. REARDON NEVER DID SO. BECAUSE PATCO, THROUGH ITS
FACILITY REPRESENTATIVES AND THROUGH MR. WINTER, TOOK ACTION IN
VIOLATION OF ITS DUTY OF FAIR REPRESENTATION AS CALCULATED RETALIATION
AGAINST COMPLAINANT FOR THE EXERCISE OF A RIGHT CLEARLY PROTECTED BY THE
ORDER, PATCO THEREBY VIOLATED SECTION 19(B)(1) OF THE ORDER.
2. SECTION 19(B)(3) ALLEGATION
SECTION 19(B)(3) PROVIDES:
"A LABOR ORGANIZATION SHALL NOT-
"(3) COERCE, ATTEMPT TO COERCE, OR DISCIPLINE, FINE, OR TAKE OTHER
ECONOMIC SANCTION
AGAINST A MEMBER OF THE ORGANIZATION AS PUNISHMENT OR REPRISAL FOR,
OR FOR THE PURPOSE OF
HINDERING OR IMPEDING HIS WORK PERFORMANCE, HIS PRODUCTIVITY, OR THE
DISCHARGE OF HIS DUTIES
OWED AS AN OFFICER OR EMPLOYEE OF THE UNITED STATES."
THE ONE CONCLUSION ON WHICH THERE IS LIKELY TO BE UNANIMOUS AGREEMENT
IS THAT THIS PROVISION WILL NEVER BE CONSIDERED FOR ANY AWARD FOR
CLARITY OF DRAFTSMANSHIP. IT WOULD APPEAR THAT THERE ARE TWO RELATED
BUT SOMEWHAT DIFFERENT PROSCRIPTIONS WHICH MAY BE PARAPHRASED AS
FOLLOWS:
A) A LABOR ORGANIZATION SHALL NOT- COERCE, ATTEMPT TO COERCE, OR
DISCIPLINE . . . A MEMBER
OF THE ORGANIZATION AS PUNISHMENT OR REPRISAL FOR . . . HIS
PRODUCTIVITY, OR THE DISCHARGE OF
HIS DUTIES . . . "
B) A LABOR ORGANIZATION SHALL NOT- COERCE, ATTEMPT TO COERCE, OR
DISCIPLINE . . . A MEMBER
OF THE ORGANIZATION . . . FOR THE PURPOSE OF HINDERING OR IMPEDING
HIS WORK PERFORMANCE, HIS
PRODUCTIVITY, OR THE DISCHARGE OF HIS DUTIES . . .
THE FIRST PROSCRIPTION, A) ABOVE, GOES TO COERCION, ETC., BECAUSE OF
PRODUCTIVITY OR DISCHARGE OF DUTY. THIS WOULD REACH, FOR EXAMPLE,
DISCIPLINE BECAUSE OF PRODUCTION OR WORK QUOTAS (SEE JUDGE DOWD'S
COMMENTS IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987 AND
JERRY L. NORRIS, CASE NO. 40-4790(CO) (1974) N. 7, AFF'D IN PART AND
REV'D IN PART, A/SLMR NO. 420 (1974)). IN ADDITION, IT WOULD APPEAR TO
REACH INTER ALIA, COERCION, ETC. FOR THE DISCHARGE OF DUTIES, I.E., FOR
WORKING AT ALL.
THE SECOND PROSCRIPTION, B) ABOVE GOES TO COERCION, ETC., FOR THE
PURPOSE OF HINDERING OR IMPEDING WORK PERFORMANCE, PRODUCTIVITY, OR THE
DISCHARGE OF DUTIES.
THIS ANALYSIS IS NOT INTENDED TO BE ALL ENCOMPASSING. IT IS
RECOGNIZED THAT OTHER CONSTRUCTIONS MAY BE EQUALLY VALID. WHILE "MEMBER
OF THE ORGANIZATION" MEANS TO ME, MEMBER OF THE LABOR ORGANIZATION
SUBJECT TO THE PROSCRIPTION OF 19(B)(3), IT IS CONCEIVABLE THAT "MEMBER
OF THE ORGANIZATION" COULD BE GIVEN A MUCH BROADER MEANING TO DENOTE
MEMBER OF ACTIVITY OR MEMBER OF THE BARGAINING UNIT. NEVERTHELESS, AS I
CONSTRUE 19(B)(3) IT MEANS THAT UNION X SHALL NOT COERCE A MEMBER OF
UNION X. AS SO CONSTRUED SECTION 19(B)(3) MAKES IT AN UNFAIR LABOR
PRACTICE FOR A UNION TO COERCE ITS OWN MEMBERS; IT DOES NOT REACH THE
SAME CONDUCT DIRECTED AGAINST A NON-MEMBER, EVEN IF SUCH PERSON WERE A
MEMBER OF ANOTHER LABOR ORGANIZATION. AS COUNSEL FOR RESPONDENTS
STATED, "THE 'LEGISLATIVE HISTORY' OF SECTION 19(B)(3) REVEALS LITTLE OR
NOTHING. THE SUBSTANTIVE PROVISIONS OF SECTION 19(B) WERE ORIGINALLY
PROMULGATED AS A PART OF THE CODE OF FAIR LABOR PRACTICES, BY THE CIVIL
SERVICE COMMISSION, UNDER EXECUTIVE ORDER 10988 . . . COUNSEL FOR
RESPONDENTS HAS CONTACTED THE CIVIL SERVICE COMMISSION AND THE OFFICE OF
THE ASSISTANT SECRETARY AND IS ADVISED THAT NO EXPLANATION EXISTS ON THE
SCOPE OF THE CODE PROVISIONS, AND NOTHING EXISTS ON THE INTERPRETATION
OF SECTION 19(B)(3) WHEN IT WAS INCORPORATED INTO THE EXECUTIVE ORDER."
(RESPONDENTS' BRIEF P. 5 FOOTNOTE).
IT IS THE SECOND PROSCRIPTION, B) ABOVE, WHICH MORE DIRECTLY APPLIES
TO THIS CASE AND, FOR THE PURPOSE OF THIS DECISION, THE FIRST
PROSCRIPTION, A) ABOVE, WILL BE ASSUMED, BUT WITHOUT DECIDING, TO BE
INAPPLICABLE. THE SECOND PROSCRIPTION, B) ABOVE, ALTHOUGH, AS JUDGE
DOWD NOTED, FOR A VIOLATION OF THIS SECTION TO BE FOUND SOME NEXUS
BETWEEN THE OFFENSIVE UNION CONDUCT AND THE EMPLOYEE'S JOB PERFORMANCE
MUST BE SHOWN, APPLIES TO ANY COERCION AGAINST A MEMBER OF THE UNION
WHICH HAS AS ITS PURPOSE THE HINDERING OR IMPEDING OF HIS JOB
PERFORMANCE, HIS PRODUCTIVITY, OR THE DISCHARGE OF HIS DUTIES. THAT IS,
19(B)(3) IS VIOLATED WHENEVER A UNION COERCES A MEMBER FOR THE PURPOSE
OF HINDERING OR IMPEDING HIS WORK PERFORMANCE, ETC., WITHOUT REGARD TO
THE REASON FOR THE COERCION. IN SO CONCLUDING I HAVE GIVEN CAREFUL
CONSIDERATION TO THE ASSISTANT SECRETARY'S STATEMENT IN AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987, SUPRA, THAT,
"IN MY VIEW, A LABOR ORGANIZATION MAY, PURSUANT TO SECTION 19(C) OF
THE ORDER, SUBJECT ITS
MEMBERS TO DISCIPLINE, INCLUDING, IN APPROPRIATE CASES, EXPULSION, TO
PROTECT ITS CONTINUED
EXISTENCE, IF SUCH DISCIPLINE IS METED OUT IN ACCORDANCE WITH
PROCEDURES UNDER THE LABOR
ORGANIZATION'S CONSTITUTION OR BY-LAWS WHICH CONFORM TO THE
REQUIREMENTS OF THE
ORDER." (A/SLMR NO. 420 N. 5) /11/
THE PERMISSIBLE LIMITS OF DISCIPLINE ARE SET FORTH IN SECTION 19(C)
OF THE ORDER WHILE SECTION 19(B)(3) OF THE ORDER PROSCRIBES COERCION,
UNDER ANY GUISE, FOR THE PURPOSE OF HINDERING OR IMPEDING A MEMBER'S
WORK PERFORMANCE, PRODUCTIVITY OR DISCHARGE OF HIS DUTIES OWED AS AN
OFFICER OR EMPLOYEE OF THE UNITED STATES.
RESPONDENTS' CONTENTION THAT SECTION 19(B)(3) APPLIES ONLY TO
INTERFERENCE WITH RIGHTS AS A MEMBER OF A LABOR ORGANIZATION IS
UNTENABLE. THE RECORD SHOWS, AND RESPONDENTS' CONCEDE THAT ACTION WAS
TAKEN AGAINST COMPLAINANT, AND OTHER CONTROLLERS, WHICH IMPEDED THEIR
PRODUCTIVITY AND HINDERED THEIR DISCHARGE OF DUTY OWED AS CONTROLLERS.
THAT LOCAL 352 AND PATCO WERE RESPONSIBLE HAS BEEN DISCUSSED HEREINABOVE
WITH RESPECT TO THE 19(B)(1) ALLEGATIONS. THE FURTHER ISSUE WITH REGARD
TO SECTION 19(B)(3) IS WHETHER SUCH ACTS OF COERCION WERE DIRECTED
AGAINST A MEMBER OF PATCO.
COMPLAINANT WAS A MEMBER OF PATCO UNTIL SOMETIME AFTER JUNE 25, 1975.
THE RECORD SHOWS ONLY THAT COMPLAINANT SUBMITTED HIS RESIGNATION A
COUPLE OF WEEKS AFTER JUNE 25, 1975, WHICH WOULD INDICATE THAT HIS
RESIGNATION WAS SUBMITTED ON OR ABOUT JULY 9, 1975, AND THAT HE REVOKED
HIS DUES PAYMENT AUTHORIZATION. RESPONDENTS DID NOT REFUTE OR CHALLENGE
THIS TESTIMONY AND RESPONDENTS DID NOT OFFER ANY EVIDENCE AS TO WHEN
COMPLAINANT'S RESIGNATION BECAME EFFECTIVE. /12/ FROM ALL TESTIMONY AND
CIRCUMSTANCES, I DRAW THE INFERENCE AND, THEREFORE, CONCLUDE, THAT
COMPLAINANT WAS A MEMBER OF PATCO AT THE TIME MR. WINTER, PATCO REGIONAL
VICE PRESIDENT, MADE THE CHARGE ON OR ABOUT JULY 7, 1975, THAT
COMPLAINANT HAD BEEN INVOLVED IN A SYSTEMS ERROR ON JUNE 25, 1975, AND
FOR THE REASONS SET FORTH HEREINABOVE WITH REGARD TO THE SECTION
19(B)(1) ALLEGATIONS, THAT LOCAL 352 AND PATCO WERE RESPONSIBLE FOR THE
COERCION DIRECTED AGAINST COMPLAINANT, A MEMBER OF PATCO, FOR THE
PURPOSE OF HINDERING OR IMPEDING HIS WORK PERFORMANCE, HIS PRODUCTIVITY,
OR THE DISCHARGE OF HIS DUTIES OWED AS AN OFFICER OR EMPLOYEE OF THE
UNITED STATES IN VIOLATION OF SECTION 19(B)(3) OF THE ORDER. LIKE ACTS
OF COERCION, OR ATTEMPTED COERCION, WERE DIRECTED BY AGENTS OF LOCAL 352
IN THE SCOPE OF THEIR AUTHORITY AGAINST OTHER MEMBERS OF PATCO FOR THE
PURPOSE OF HINDERING OR IMPEDING THEIR WORK PERFORMANCE, THEIR
PRODUCTIVITY, OR THE DISCHARGE OF THEIR DUTIES AS CONTROLLERS WHICH WAS
ALSO IN VIOLATION OF SECTION 19(B)(3) OF THE ORDER. PATCO, BY THE ACTS
OF ITS DESIGNATED REPRESENTATIVES, WAS RESPONSIBLE FOR THE CONDUCT OF
ITS DESIGNATED AGENTS AND THEREBY VIOLATED SECTION 19(B)(3) OF THE ORDER
AS TO MEMBERS OTHER THAN COMPLAINANT.
IN ADDITION, PATCO, WITH KNOWLEDGE OF CONDUCT WHICH HINDERED OR
IMPEDED THE WORK PERFORMANCE, PRODUCTIVITY, OR DISCHARGE OF DUTIES OF
MEMBERS OF PATCO, IN VIOLATION OF ITS DUTY OF FAIR REPRESENTATION,
JOINED IN ACTION WHICH HINDERED OR IMPEDED COMPLAINANT'S WORK
PERFORMANCE, PRODUCTIVITY, OR THE DISCHARGE OF COMPLAINANT'S DUTIES AS A
CONTROLLER BY CHARGING COMPLAINANT WITH INVOLVEMENT IN A SYSTEMS ERROR
ON JUNE 25, 1975, WHICH CHARGE WAS ARBITRARY AND BECAUSE OF THE BAD
FAITH OF ITS AGENTS, WAS MADE IN BAD FAITH BY PATCO. ACCORDINGLY, FOR
THIS FURTHER REASON PATCO ALSO VIOLATED SECTION 19(B)(3) OF THE ORDER.
RECOMMENDATION
HAVING FOUND THAT RESPONDENT PATCO, ITS LOCAL NO. 352, AND DENNIS M.
REARDON, PRESIDENT OF LOCAL 352 AND FACILITY REPRESENTATIVE OF PATCO,
ENGAGED IN CONDUCT WHICH WAS IN VIOLATION OF SECTIONS 19(B)(1) AND (3)
OF THE EXECUTIVE ORDER, I RECOMMEND THAT THE ASSISTANT SECRETARY ADOPT
THE FOLLOWING ORDER:
RECOMMENDED 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 PROFESSIONAL AIR
TRAFFIC CONTROLLERS ORGANIZATION, MEBA, AFL-CIO, ITS LOCAL UNION 352,
AND THEIR OFFICERS, REPRESENTATIVES, AND AGENTS, INCLUDING DENNIS M.
REARDON, SHALL:
1. CEASE AND DESIST FROM:
A) INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES OF THE
DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, AIR
TRAFFIC CONTROL TOWER, ST. LOUIS, MISSOURI, IN THE EXERCISE OF THEIR
RIGHT, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL, TO FORM, JOIN,
AND ASSIST A LABOR ORGANIZATION OR TO REFRAIN FROM ANY SUCH ACTIVITY, AS
GUARANTEED TO THEM BY SECTION 1 OF THE EXECUTIVE ORDER, BY DELAY IN
COORDINATION IN AIR TRAFFIC CONTROL; BY REFUSAL TO APPROVE REQUESTS FOR
EARLY DESCENT OF AIRCRAFT; BY ANY THREAT DIRECTED AT ANY EMPLOYEE
BECAUSE AN EMPLOYEE HAS DECLINED TO INVOKE ARTICLE 55 OF THE PATCO-FAA
COLLECTIVE BARGAINING AGREEMENT; BY THE LODGING IN BAD FAITH OF CHARGES
AGAINST AN EMPLOYEE OF INVOLVEMENT IN A SYSTEMS ERROR; BY ANY ARBITRARY
CONDUCT AS CALCULATED RETALIATION AGAINST ANY EMPLOYEE FOR THE EXERCISE
OF A RIGHT PROTECTED UNDER THE EXECUTIVE ORDER; BY INTERFERING WITH,
RESTRAINING, OR IMPEDING IN ANY MANNER, THE RIGHT OF ALL EMPLOYEES TO
THE FREE AND UNIMPEDED ACCESS TO THE COMPLAINT PROCEDURES OF THE
EXECUTIVE ORDER; OR IN ANY LIKE OR RELATED MANNER INTERFERING WITH,
RESTRAINING, OR COERCING EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
B) COERCING, OR ATTEMPTING TO COERCE A MEMBER OF THE PROFESSIONAL AIR
TRAFFIC CONTROLLERS ORGANIZATION FOR THE PURPOSE OF HINDERING OR
IMPEDING HIS WORK PERFORMANCE, HIS PRODUCTIVITY, OR THE DISCHARGE OF HIS
DUTIES OWED AS AN OFFICER OR EMPLOYEE OF THE UNITED STATES, BY DELAY IN
COORDINATION IN AIR TRAFFIC CONTROL; BY REFUSAL TO APPROVE REQUESTS FOR
EARLY DESCENT OF AIRCRAFT; BY ANY THREAT DIRECTED AT ANY MEMBER OF
PATCO BECAUSE THE MEMBER OF PATCO HAS DECLINED TO INVOKE ARTICLE 55 OF
THE PATCO-FAA COLLECTIVE BARGAINING AGREEMENT; BY THE LODGING IN BAD
FAITH OF CHARGES AGAINST ANY MEMBER OF PATCO OF INVOLVEMENT IN A SYSTEMS
ERROR; BY ANY ARBITRARY CONDUCT AGAINST ANY MEMBER OF PATCO AS
CALCULATED RETALIATION AGAINST SUCH MEMBER OF PATCO FOR THE EXERCISE OF
A RIGHT PROTECTED UNDER THE EXECUTIVE ORDER; OR IN ANY LIKE OR RELATED
MANNER COERCING, OR ATTEMPTING TO COERCE, ANY MEMBER OF PATCO FOR THE
PURPOSE OF HINDERING OR IMPEDING HIS WORK PERFORMANCE, HIS PRODUCTIVITY,
OR THE DISCHARGE OF HIS DUTIES OWED AS AN OFFICER OR EMPLOYEE OF THE
UNITED STATES.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE THE PURPOSES
AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
A) POST IN CONSPICUOUS PLACES IN THE BUSINESS OFFICE OF LOCAL 352, AT
THE NATIONAL BUSINESS OFFICE OF PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, MEBA, AFL-CIO, AND AT THE REGIONAL OFFICE OF PROFESSIONAL
AIR TRAFFIC CONTROLLERS ORGANIZATION, MEBA, AFL-CIO WHICH ENCOMPASSES
ST. LOUIS, MISSOURI, WHERE NOTICES TO MEMBERS ARE CUSTOMARILY POSTED,
COPIES OF THE ATTACHED NOTICE SIGNED BY THE NATIONAL PRESIDENT OF
PATCO-MEBA, BY THE REGIONAL VICE PRESIDENT OF PATCO-MEBA, FOR THE
REGIONS ENCOMPASSING ST. LOUIS, MISSOURI, AND BY THE CURRENT ST. LOUIS
TOWER FACILITY REPRESENTATIVE OF PATCO-MEBA, WHICH IS MARKED "APPENDIX
B". SAID COPIES OF THE NOTICES SHALL BE POSTED FOR A PERIOD OF 60
CONSECUTIVE DAYS IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE
NOTICES TO MEMBERS ARE CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE
TAKEN BY PATCO-MEBA AND BY LOCAL 352 TO INSURE THAT SAID NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY OTHER MATERIAL.
B) MAIL A COPY OF SAID NOTICE TO EACH MEMBER OF PATCO NOW EMPLOYED AT
THE ST. LOUIS, MISSOURI, AIR TRAFFIC CONTROL TOWER AND TO EACH MEMBER OF
PATCO EMPLOYED AT THE ST. LOUIS, MISSOURI, AIR TRAFFIC CONTROL TOWER ON
JUNE 25, 1975, BUT WHO ARE NOT NOW EMPLOYED AT THE ST. LOUIS, MISSOURI
FACILITY.
C) FURNISH SUFFICIENT COPIES OF SAID NOTICE TO THE FEDERAL AVIATION
ADMINISTRATION FOR POSTING, IF THE AGENCY AND FACILITY AGREE TO DO SO,
AT PLACES AT THE ST. LOUIS, MISSOURI, AIR TRAFFIC CONTROL TOWER WHERE IT
CUSTOMARILY POSTS INFORMATION TO ITS CONTROLLERS. NOTICES SHOULD BE
FURNISHED TO FAA WITHIN 14 DAYS OF THE DATE OF THIS DECISION AND ORDER.
D) 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.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: SEPTEMBER 29, 1976
WASHINGTON, D.C.
/1/ THE PARTIES HAVE NOT MADE ANY MOTION OR REQUEST TO CORRECT THE
TRANSCRIPT; NEVERTHELESS, I HAVE NOTED SOME OBVIOUS ERRORS WHICH I
HEREBY CORRECT ON MY OWN MOTION AS SET FORTH IN APPENDIX "A: HERETO.
/2/ RESPONDENT INTRODUCED, IN THE CROSS-EXAMINATION OF MR. EARLY, ONE
EXHIBIT, RES. EXH. 1, A LETTER DATED AUGUST 6, 1975, FROM MR. EARLY TO
COMPLAINANT, TASO P. ANTHAN.
/3/ ART. 55. "IN THE EVENT OF DIFFERENCE IN PROFESSIONAL OPINION
BETWEEN THE EMPLOYEE AND THE SUPERVISOR, THE EMPLOYEE SHALL COMPLY WITH
THE INSTRUCTIONS OF THE SUPERVISOR AND THE SUPERVISOR SHALL ASSUME
RESPONSIBILITY FOR HIS OWN DECISIONS.
/4/ FOR A SHORT PERIOD OF TIME, DURING THE LATE SUMMER OF 1975, THE
ST. LOUIS TOWER HAD PUBLISHED A FACILITY ORDER WHICH PLACED CERTAIN
RESTRICTIONS ON AREAS WHERE EARLY DESCENTS COULD BE REQUESTED. THIS
FACILITY ORDER HAD BEEN RECOMMENDED BY THE FACILITY AIR TRAFFIC
TECHNICAL ADVISORY COMMITTEE (FATTAC). THE ORDER WAS NOT THEN IN EFFECT
(IT WAS ISSUED LATER) AND THE FACILITY ORDER WAS SUBSEQUENTLY CANCELLED
AFTER A BRIEF TRIAL PERIOD.
/5/ MEL WISE WAS SHOWN BY THE OPERATIONAL LOG AS WORKING THE TCA-2
POSITION AT 1757:00Z TO 1757:05Z. THE OPERATIONAL LOG FURTHER SHOWED
THAT MR. WISE WORKED THIS POSITION FROM 1649Z TO 1758Z. MR. REARDON
RELIEVED MR. WISE AT TCA-2 AT 1758Z.
/6/ THE ARRIVAL CONTROLLER IS ASSIGNED THE AIR SPACE AT 6,000, 7,000
AND 8,000 FEET; DEPARTURES ARE RESTRICTED TO 5,000 FEET, TO AVOID
CLIMBING THROUGH AN ARRIVAL TRACK, UNTIL THE DEPARTURE CONTROLLER
ESTABLISHES COMMUNICATIONS AND HE CAN CLIMB THEM ABOVE THE APPROACH
TRACKS OR AROUND AIRCRAFT ON APPROACH TRACKS.
/7/ AT THE CLOSE OF THE HEARING COMPLAINANT'S MOTION TO AMEND THE
COMPLAINT TO CONFORM TO THE PROOF WAS GRANTED AND THE COMPLAINT, AS
AMENDED, IS DIRECTED AGAINST PATCO, LOCAL UNION 352, AND MR. DENNIS M.
REARDON, LOCAL REPRESENTATIVE OF PATCO.
/8/ ARTICLE 2, SECTION 3 OF THE FAA-PATCO AGREEMENT PROVIDES, IN
PART, AS FOLLOWS:
"SECTION 3. THE UNION (PATCO) MAY DESIGNATE FACILITY REPRESENTATIVES
AT EACH
FACILITY. THE UNION (PATCO) MAY DESIGNATE ONE REPRESENTATIVE AND ONE
DESIGNEE FOR EACH TEAM,
CREW, OR GROUP AS APPROPRIATE, IN EACH FACILITY. . . . IN ADDITION,
THE UNION (PATCO) SHALL
DESIGNATE IN WRITING THE PRINCIPAL REPRESENTATIVE AND ONE DESIGNEE.
ONLY THE PRINCIPAL
REPRESENTATIVE AND/OR HIS DESIGNEE MAY DEAL WITH THE FACILITY CHIEF."
/9/ AS NOTES IN N. 8, ARTICLE 2, SECTION 3 OF THE PATCO AGREEMENT
PROVIDES,
"ONLY THE PRINCIPAL REPRESENTATIVE AND/OR HIS DESIGNEE MAY DEAL WITH
THE FACILITY CHIEF."
THE RECORD SHOWS THAT MR. EARLY CALLED MR. FERRING, WHEN MR. REARDON
WAS NOT AVAILABLE, AND LATER MET WITH MR. REARDON. IN THE ABSENCE OF
ANY EVIDENCE OR TESTIMONY TO THE CONTRARY, I DRAW THE INFERENCE THAT MR.
REARDON WAS PATCO FACILITY REPRESENTATIVE ON JULY 7, 1975,
NOTWITHSTANDING MR. FERRING'S ELECTION AS PRESIDENT OF LOCAL 352,
EFFECTIVE JULY 1, 1975.
/10/ I DO NOT QUESTION MR. WINTER'S GOOD FAITH, NOR THAT HE WAS DUPED
BY PATCO'S FACILITY REPRESENTATIVES; BUT HIS ACTION BECOMES TAINTED BY
THE BAD FAITH OF PATCO'S FACILITY REPRESENTATIVES. THAT IS, PATCO,
ALTHOUGH IT ACTED UPON INFORMATION FURNISHED BY ITS FACILITY
REPRESENTATIVES, IS RESPONSIBLE FOR THE ACTS OF ITS AGENTS AND BECAUSE
ITS AGENTS ACTED IN BAD FAITH, PATCO, BY ITS ACTION, IN RELIANCE
THEREON, BECAME A PARTICIPANT TO SUCH BAD FAITH.
/11/ TO LIKE EFFECT, SEE LOCAL 1858, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES (REDSTONE ARSENAL, ALABAMA) AND ROBERT L. MURPHY,
A/SLMR NO. 275 (1973); SEE ALSO, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1650 (BEEVILLE, TEXAS), ET AL., A/SLMR 294 (1973).
/12/ ARTICLE 4, SECTION 5 OF THE FAA-PATCO AGREEMENT PROVIDES, IN
PART, AS FOLLOWS:
" . . . UPON RECEIPT OF A REVOCATION FORM . . . THE PAYROLL OFFICE
SHALL DISCONTINUE THE
WITHHOLDING OF DUES FROM THE EMPLOYEE'S PAY EFFECTIVE THE FIRST PAY
PERIOD FOR WHICH A
DEDUCTION WOULD OTHERWISE BE MADE BEGINNING AFTER MARCH 1, OR
SEPTEMBER 1, WHICHEVER COMES
SOONER. . . . " 2 GOV. EMPLOYEE REL. REPORT 81: 6503
THIS PROVISION APPEARS TO PROVIDE SEMI-ANNUAL "ESCAPE" PERIODS. IF
SO, COMPLAINANT MAY HAVE REMAINED A MEMBER OF PATCO UNTIL ON OR AFTER
SEPTEMBER 1, 1975.
APPENDIX B
NOTICE TO ALL MEMBERS AND EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS AND IN ORDER TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
AMENDED
LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE
WE HEREBY NOTIFY YOU THAT:
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES OF THE
DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, AIR
TRAFFIC CONTROL TOWER, ST. LOUIS, MISSOURI, IN THE EXERCISE OF THEIR
RIGHT, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL, TO
SELF-ORGANIZATION, TO FORM, JOIN, OR ASSIST LABOR ORGANIZATIONS OR TO
REFRAIN FROM ANY SUCH ACTIVITY.
WE WILL NOT COERCE, OR ATTEMPT TO COERCE, ANY MEMBER OF PATCO FOR THE
PURPOSE OF HINDERING OR IMPEDING HIS WORK PERFORMANCE, HIS PRODUCTIVITY,
OR THE DISCHARGE OF HIS DUTIES OWED AS AN OFFICER OR EMPLOYEE OF THE
UNITED STATES.
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE OR
MEMBER OF PATCO, AFORESAID, BY DELAY IN COORDINATION IN AIR TRAFFIC
CONTROL; BY REFUSAL TO APPROVE REQUESTS FOR EARLY DESCENT OF AIRCRAFT;
BY ANY THREAT BECAUSE AN EMPLOYEE OR MEMBER OF PATCO HAS DECLINED TO
INVOKE ARTICLE 55 OF THE PATCO-FAA COLLECTIVE BARGAINING AGREEMENT; BY
THE LODGING IN BAD FAITH OF CHARGES OF INVOLVEMENT IN A SYSTEMS ERROR;
BY ANY ARBITRARY CONDUCT AS CALCULATED RETALIATION FOR THE EXERCISE OF A
RIGHT PROTECTED UNDER THE EXECUTIVE ORDER; BY INTERFERING WITH,
RESTRAINING, OR IMPEDING IN ANY MANNER THE RIGHT OF ALL EMPLOYEES TO THE
FREE AND UNIMPEDED ACCESS TO THE COMPLAINT PROCEDURES OF THE EXECUTIVE
ORDER; OR IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE ANY EMPLOYEE OR MEMBER OF PATCO IN THE EXERCISE OF RIGHTS ASSURED
BY EXECUTIVE ORDER 11491, AS AMENDED.
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, AFFILIATED WITH
NATIONAL MARINE ENGINEERS
BENEFICIAL ASSOCIATION, AFL-CIO
DATED: . . . BY . . .
PRESIDENT
DATED: . . . BY . . .
REGIONAL VICE PRESIDENT
DATED: . . . BY . . .
PATCO FACILITY REPRESENTATIVE
ST. LOUIS, MISSOURI
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 OR MEMBERS OF PATCO 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 220, 911
WALNUT STREET, KANSAS CITY, MISSOURI 64106.
7 A/SLMR 877; P. 636; CASE NO. 40-7639(CU); AUGUST 9, 1977.
AUGUST 9, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER CLARIFYING UNIT
OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
DEPARTMENT OF THE ARMY,
MILITARY TRAFFIC MANAGEMENT COMMAND,
MILITARY OCEAN TERMINAL, SUNNY POINT
A/SLMR NO. 877
THIS CASE INVOLVED A PETITION FOR CLARIFICATION OF UNIT (CU) FILED BY
THE ACTIVITY-PETITIONER (ACTIVITY) SEEKING TO CLARIFY WHETHER OR NOT
AFTER A 1968 REORGANIZATION AT THE ACTIVITY, EMPLOYEES IN THE ACTIVITY'S
COMMUNICATIONS DIVISION, WHO WERE ADMINISTRATIVELY TRANSFERRED INTACT TO
THE U.S. ARMY COMMUNICATIONS COMMAND (USACC, SUNNY POINT), ARE STILL
INCLUDED WITHIN THE EXCLUSIVELY RECOGNIZED UNIT REPRESENTED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1708, AFL-CIO (AFGE).
IN THIS REGARD, THE ACTIVITY CONTENDED, AND ALL OF THE PARTIES
CONCURRED, THAT SOME 15 USACC, SUNNY POINT, EMPLOYEES ARE INCLUDED IN
THE AFGE'S EXCLUSIVELY RECOGNIZED UNIT AND THAT THE USACC, SUNNY POINT,
THE GAINING EMPLOYER ENTITY, IS A SUCCESSOR EMPLOYER AND JOINT EMPLOYER
OF SAID UNIT WHICH THE PARTIES ASSERTED IS APPROPRIATE UNDER SECTION
10(B) OF THE ORDER.
THE ASSISTANT SECRETARY CONCLUDED THAT AS THE 1968 REORGANIZATION
INVOLVED THE ADMINISTRATIVE TRANSFER TO THE GAINING EMPLOYER, THE USACC,
SUNNY POINT, OF ONLY A PORTION OF THE EMPLOYEES IN THE EXISTING
EXCLUSIVELY RECOGNIZED UNIT, NO "SUCCESSORSHIP" RELATIONSHIP HAD BEEN
ESTABLISHED BY THE REORGANIZATION. RATHER, THE ASSISTANT SECRETARY
FOUND THAT THE USACC SUNNY POINT, EMPLOYEES REMAINED WITHIN THE AFGE'S
EXISTING EXCLUSIVELY RECOGNIZED UNIT SUBSEQUENT TO THE ADMINISTRATIVE
TRANSFER TO THE COMMUNICATIONS DIVISION OF THE ACTIVITY TO THE USACC,
SUNNY POINT. IN THIS REGARD, IT WAS NOTED THAT, SUBSEQUENT TO THE
REORGANIZATION, THE EMPLOYEES OF THE USACC, SUNNY POINT, CONTINUED TO
SHARE A COMMUNITY OF INTEREST WITH OTHER EMPLOYEES LOCATED AT THE
ACTIVITY IN THAT THEY CONTINUED TO PERFORM THE SAME JOB FUNCTIONS IN THE
SAME LOCATION WITH NO SUBSTANTIAL CHANGE IN THEIR WORKING CONDITIONS,
IMMEDIATE SUPERVISION AND JOB CONTACTS OR PERSONNEL POLICIES.
THE ASSISTANT SECRETARY FOUND FURTHER THAT THE RETENTION OF THE
USACC, SUNNY POINT, EMPLOYEES IN THE AFGE'S EXCLUSIVELY RECOGNIZED UNIT
WOULD PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
WITH REGARD TO EFFECTIVE DEALINGS, HE FOUND THAT THE ACTIVITY'S CIVILIAN
PERSONNEL OFFICE (CPO) ALSO SERVICES THE USACC, SUNNY POINT, EMPLOYEES
AND IS RESPONSIBLE FOR THE LABOR RELATIONS PROGRAM OF ALL CIVILIAN
EMPLOYEES IT SERVICES, INCLUDING THE NEGOTIATION OF AGREEMENTS WITH ALL
RECOGNIZED LABOR ORGANIZATIONS PHYSICALLY LOCATED AT THE ACTIVITY AND
THAT, SUBSEQUENT TO THE REORGANIZATION, THERE CONTINUED TO BE STABLE
LABOR-MANAGEMENT RELATIONS BETWEEN THE ACTIVITY AND THE AFGE, WITH THE
AFGE BEING TREATED AS THE EXCLUSIVE REPRESENTATIVE OF THE USACC, SUNNY
POINT, EMPLOYEES. WITH RESPECT TO EFFICIENCY OF AGENCY OPERATIONS, THE
ASSISTANT SECRETARY NOTED THAT THE CONTINUED INCLUSION OF THE USACC,
SUNNY POINT, EMPLOYEES IN THE AFGE'S EXCLUSIVELY RECOGNIZED UNIT WOULD
PREVENT FRAGMENTATION OF THE EXISTING UNIT, ALL OF WHOSE EMPLOYEES ARE
SERVICED BY THE SAME CPO.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE UNIT
REPRESENTED EXCLUSIVELY BY THE AFGE BE CLARIFIED CONSISTENT WITH HIS
FINDINGS.
DEPARTMENT OF THE ARMY,
MILITARY TRAFFIC MANAGEMENT COMMAND,
MILITARY OCEAN TERMINAL, SUNNY POINT /1/
ACTIVITY-PETITIONER
CASE NO. 40-7639(CU)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1708, AFL-CIO
LABOR ORGANIZATION
AND
U.S. ARMY COMMUNICATIONS COMMAND
AGENCY-SUNNY POINT
PARTY-IN-INTEREST
DECISION AND ORDER CLARIFYING UNIT
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, THE ASSISTANT SECRETARY FINDS:
THE ACTIVITY-PETITIONER, WHICH IS LOCATED AT SOUTHPORT, NORTH
CAROLINA, AND WHICH HEREINAFTER IS CALLED THE ACTIVITY, FILED A PETITION
FOR CLARIFICATION OF UNIT (CU) SEEKING TO CLARIFY WHETHER OR NOT AFTER A
1968 REORGANIZATION AT THE ACTIVITY, EMPLOYEES IN THE ACTIVITY'S
COMMUNICATIONS DIVISION, WHO WERE ADMINISTRATIVELY TRANSFERRED INTACT TO
THE U.S. ARMY COMMUNICATIONS COMMAND, HEREINAFTER CALLED THE USACC,
SUNNY POINT, ARE STILL INCLUDED WITHIN THE EXCLUSIVELY RECOGNIZED UNIT
REPRESENTED BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
1708, AFL-CIO, HEREINAFTER CALLED AFGE. /2/ IN THIS REGARD, THE
ACTIVITY CONTENDS THAT SOME 15 USACC, SUNNY POINT (COMMUNICATIONS
DIVISION) EMPLOYEES ARE INCLUDED IN THE EXCLUSIVELY RECOGNIZED UNIT
REPRESENTED BY THE AFGE AND THAT THE USACC, SUNNY POINT, THE GAINING
EMPLOYER ENTITY, IS A SUCCESSOR EMPLOYER AND JOINT EMPLOYER OF SAID
UNIT, WHICH UNIT, IT IS ASSERTED, IS APPROPRIATE UNDER SECTION 10(B) OF
THE ORDER. ALL OF THE PARTIES CONCUR IN THE POSITION OF THE ACTIVITY
AND DESIRE TO AMEND THE RECOGNITION OF SAID UNIT TO REFLECT A
MULTI-EMPLOYER UNIT CONSISTING OF EMPLOYEES OF THE ACTIVITY AND THE
USACC, SUNNY POINT.
THE MISSION OF THE ACTIVITY IS TO PLAN, COORDINATE AND ACCOMPLISH THE
TRANSHIPMENT OF AMMUNITION AND OTHER DANGEROUS CARGOES TO AND FROM
OVERSEAS AREAS. /3/ PRIOR TO THE 1968 REORGANIZATION, COMMUNICATIONS
SERVICES WERE PROVIDED FOR THE ACTIVITY THROUGH AN INTERNAL SUBORDINATE
ORGANIZATION UNDER THE ACTIVITY'S DIRECTOR OF SERVICES. THIS
SUBORDINATE ORGANIZATION, THE COMMUNICATIONS DIVISION, PROVIDED
COMMUNICATIONS, ELECTRONICS AND PHOTOGRAPHIC SERVICES FOR THE ACTIVITY.
THE COMMUNICATIONS DIVISION WAS COMPOSED OF SOME 9 WAGE GRADE AND
GENERAL SCHEDULE EMPLOYEES IN THE POSITIONS OF TELEPHONE OPERATORS,
COMMUNICATIONS SPECIALISTS AND A PHOTOGRAPHER. ON OCTOBER 9, 1968,
PURSUANT TO A REORGANIZATION, THE EMPLOYEES ASSIGNED TO THE ACTIVITY'S
COMMUNICATIONS DIVISION WERE TRANSFERRED INTACT TO THE USACC, SUNNY
POINT, A NEW ORGANIZATION, WHICH USED THE SAME GROUNDS AND FACILITIES AS
WERE USED BEFORE THE REORGANIZATION. THE EFFECT OF THE REORGANIZATION
WAS THAT THE COMMUNICATIONS DIVISION BECAME A TENANT ORGANIZATION
LOCATED AT THE ACTIVITY.
THE RECORD REVEALS THAT WHILE MOST CONDITIONS OF EMPLOYMENT REMAINED
THE SAME FOR THE USACC, SUNNY POINT, EMPLOYEES SUBSEQUENT TO THE
REORGANIZATION, CERTAIN CHANGES WERE EFFECTED. THUS, PERSONNEL ACTIONS
CONCERNING PAY AND PROMOTIONS WERE TRANSFERRED TO THE USACC, FORT
RITCHIE, MARYLAND; CRITERIA AND GUIDELINES FOR RATING AND RANKING
EMPLOYEES WERE DEVELOPED AND PROCESSED BY THE USACC, FORT HUACHUCA,
ARIZONA; AGENCY GRIEVANCES WERE HANDLED THROUGH THE USACC CHANNELS
INSTEAD OF THOSE OF THE ACTIVITY; AND A SEPARATE REDUCTION IN FORCE
AREA WAS ESTABLISHED FOR THE USACC, SUNNY POINT, EMPLOYEES. HOWEVER,
THE RECORD ALSO REVEALS THAT AFTER THE REORGANIZATION THE COMMUNICATIONS
EMPLOYEES CONTINUED TO PERFORM THE SAME JOB FUNCTIONS IN THE SAME
LOCATION WITH NO SUBSTANTIAL CHANGE IN THEIR WORKING CONDITIONS,
IMMEDIATE SUPERVISION AND JOB CONTACTS OR PERSONNEL POLICIES. FURTHER,
THE USACC, SUNNY POINT, AS A TENANT ORGANIZATION, IS SERVICED BY THE
ACTIVITY'S CIVILIAN PERSONNEL OFFICE (CPO) /4/ WHICH IS RESPONSIBLE FOR
LABOR RELATIONS FOR ALL OF THE CIVILIANS LOCATED AT THE ACTIVITY. THUS,
THE RECORD REFLECTS THAT THE CPO'S RESPONSIBILITIES" . . . WOULD INCLUDE
ALL DEALINGS WITH WHATEVER UNIONS ARE RECOGNIZED, NEGOTIATION OF
CONTRACTS, RESPONSIBILITY FOR NEGOTIATING, CONSULTING AND CONFERRING
WITH THE PROPER PEOPLE ON ANY PERSONNEL MATTER THAT AFFECTS WORKING
CONDITIONS OF EMPLOYEES." /5/ IN THIS REGARD, IT WAS NOTED THAT THE CPO
IS RESPONSIBLE FOR EMPLOYEE RECRUITING FOR THE USACC, SUNNY POINT,
VACANCIES, CLASSIFYING THE USACC, SUNNY POINT, POSITIONS UP TO GENERAL
SCHEDULE 12 AND COUNSELLING THE USACC, SUNNY POINT, EMPLOYEES ON SUCH
MATTERS AS SICK LEAVE AND ADVERSE ACTIONS. IT WAS NOTED ALSO THAT THE
USACC, SUNNY POINT, EMPLOYEES ARE COVERED UNDER THE SAME MERIT PROMOTION
PLAN AS THE EMPLOYEES OF THE ACTIVITY AND ARE CONSIDERED FOR JOB
VACANCIES AT THE ACTIVITY, THAT THE USACC, SUNNY POINT, EMPLOYEES HAVE
THE SAME LEAVE AND ADVERSE ACTION POLICIES AS ACTIVITY EMPLOYEES; AND
THAT THE USACC, SUNNY POINT, EMPLOYEES HAVE TAKEN POSITIONS AT THE
ACTIVITY AND VICE VERSA.
THE RECORD REFLECTS THAT THE ACTIVITY HAS CONTINUED TO RECOGNIZE THE
AFGE AS REPRESENTING THE USACC, SUNNY POINT, EMPLOYEES. IN THIS REGARD,
THE ACTIVITY'S CPO HAS PERMITTED A USACC, SUNNY POINT, EMPLOYEE TO BE
REPRESENTED BY THE AFGE REGARDING A DOWNGRADE PROCEDURE, AND DUES
WITHHOLDINGS FOR THE AFGE MEMBERS OF THE USACC, SUNNY POINT, HAVE
CONTINUED UP TO THE PRESENT TIME. IN ADDITION, AN AFGE STEWARD HAS BEEN
APPOINTED FOR THE USACC, SUNNY POINT, EMPLOYEES AND HAS BEEN RECOGNIZED
BY THE ACTIVITY.
UNDER THE CIRCUMSTANCES HEREIN, AND NOTING PARTICULARLY THAT THE
EVIDENCE ESTABLISHES THAT THE 1968 REORGANIZATION INVOLVED THE
ADMINISTRATIVE TRANSFER TO THE GAINING EMPLOYER, THE USACC, SUNNY POINT,
OF ONLY A PORTION OF THE EMPLOYEES IN THE EXISTING EXCLUSIVELY
RECOGNIZED UNIT, I FIND THAT NO "SUCCESSORSHIP" RELATIONSHIP HAS BEEN
ESTABLISHED BY THE REORGANIZATION. /6/ RATHER, I FIND THAT, BASED ON
THE CIRCUMSTANCES HEREIN, THE USACC, SUNNY POINT, EMPLOYEES HAVE
REMAINED WITHIN THE AFGE'S EXISTING EXCLUSIVELY RECOGNIZED UNIT AFTER
THE ADMINISTRATION TRANSFER OF THE COMMUNICATIONS DIVISION OF THE
ACTIVITY TO THE USACC, SUNNY POINT. THUS, THE EVIDENCE ESTABLISHES THAT
AFTER THE REORGANIZATION THE COMMUNICATIONS EMPLOYEES CONTINUED TO
PERFORM THE SAME JOB FUNCTIONS IN THE SAME LOCATION WITH NO SUBSTANTIAL
CHANGE IN THEIR WORKING CONDITIONS, IMMEDIATE SUPERVISION AND JOB
CONTACTS OR PERSONNEL POLICIES AS BEFORE THE REORGANIZATION. NOR DO I
CONSIDER THE FACT THAT THE USACC, SUNNY POINT, EMPLOYEES ARE COVERED BY
DIFFERENT PAYROLL AND AGENCY GRIEVANCE PROCEDURES OR EXPERIENCED MINOR
CHANGES INVOLVING PERSONNEL POLICIES AS A CONSEQUENCE OF THE
REORGANIZATION AS MATERIALLY AFFECTING THE EMPLOYEES CONTINUED COMMUNITY
OF INTEREST WITH OTHER EMPLOYEES LOCATED AT THE ACTIVITY, IN VIEW OF THE
CONTINUITY OF MOST OF THE EMPLOYMENT CONDITIONS APPLICABLE TO THESE
EMPLOYEES AND THEIR CONTINUED CLOSE WORKING RELATIONSHIP WITH THE
ACTIVITY'S EMPLOYEES. UNDER THESE CIRCUMSTANCES, I FIND THAT THE
COMMUNICATIONS EMPLOYEES CONTINUE, SUBSEQUENT TO THE REORGANIZATION, TO
SHARE A COMMUNITY OF INTEREST WITH OTHER EMPLOYEES LOCATED AT THE
ACTIVITY, WHO ARE REPRESENTED BY THE AFGE.
MOREOVER, I FIND THAT THE RETENTION OF THE COMMUNICATIONS EMPLOYEES
IN THE AFGE'S EXCLUSIVELY RECOGNIZED UNIT WILL PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. WITH REGARD TO EFFECTIVE
DEALINGS, THE EVIDENCE ESTABLISHES THAT THE ACTIVITY'S CPO OFFICE ALSO
SERVICES THE USACC, SUNNY POINT, EMPLOYEES AND IS RESPONSIBLE FOR THE
LABOR RELATIONS PROGRAM AS IT APPLIES TO ALL CIVILIAN EMPLOYEES IT
SERVICES, INCLUDING THE NEGOTIATION OF AGREEMENTS WITH ALL RECOGNIZED
LABOR ORGANIZATIONS PHYSICALLY LOCATED AT THE ACTIVITY. IN THIS
CONNECTION, THE RECORD REFLECTS THAT SUBSEQUENT TO THE REORGANIZATION
THERE CONTINUED TO BE STABLE LABOR-MANAGEMENT RELATIONS BETWEEN THE
ACTIVITY AND THE AFGE, WITH THE AFGE BEING TREATED AS THE EXCLUSIVE
REPRESENTATIVE OF THE USACC, SUNNY POINT, EMPLOYEES. WITH RESPECT TO
EFFICIENCY OF AGENCY OPERATIONS, IT IS NOTED THAT THE CONTINUED
INCLUSION OF THE USACC, SUNNY POINT, EMPLOYEES IN THE AFGE'S EXCLUSIVELY
RECOGNIZED UNIT WILL PREVENT FRAGMENTATION OF THE EXISTING UNIT, ALL OF
WHOSE EMPLOYEES ARE SERVICED BY THE SAME CPO. ACCORDINGLY, I FIND THAT
THE COMMUNICATIONS EMPLOYEES OF THE USACC, SUNNY POINT, HAVE REMAINED
WITHIN THE AFGE'S EXISTING EXCLUSIVELY RECOGNIZED UNIT SUBSEQUENT TO THE
1968 REORGANIZATION. /7/
ORDER
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN FOR
WHICH THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1708,
AFL-CIO, WAS ACCORDED RECOGNITION AS THE EXCLUSIVE BARGAINING
REPRESENTATIVE IN 1962 BE, AND IT HEREBY IS, CLARIFIED TO INCLUDE IN
SAID UNIT THE UNITED STATES ARMY COMMUNICATIONS COMMAND EMPLOYEES
LOCATED AT THE MILITARY OCEAN TERMINAL, SUNNY POINT, SOUTHPORT, NORTH
CAROLINA.
DATED, WASHINGTON, D.C.
AUGUST 9, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ THE NAME OF THE ACTIVITY-PETITIONER APPEARS AS AMENDED AT THE
HEARING.
/2/ THE AFGE WAS GRANTED EXCLUSIVE RECOGNITION IN 1962. THE ACTIVITY
AND THE AFGE AGREE THAT THE 1964 NEGOTIATED AGREEMENT DESCRIPTION OF THE
UNIT WHICH WAS "ALL EMPLOYEES IN THE RECOGNIZED TERMINAL-WIDE UNIT,
EXCEPT THOSE POSITIONS SPECIFICALLY EXCLUDED BY THE INELIGIBLE LIST,"
ACCURATE REFLECTS THE EXCLUSIVELY RECOGNIZED UNIT. THE AFGE'S CURRENT
NEGOTIATED AGREEMENT WITH THE ACTIVITY DESCRIBES THE UNIT AS "ALL
EMPLOYEES OF MILITARY OCEAN TERMINAL, SUNNY POINT, EXCLUDING MANAGEMENT
OFFICIALS, SUPERVISORS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY AND GUARDS".
/3/ THE ACTIVITY EMPLOYS 89 WAGE GRADE AND 144 GENERAL SCHEDULE
EMPLOYEES, (42 OF WHOM ARE GUARDS AND ARE REPRESENTED BY THE
INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS). THE USACC, SUNNY POINT,
EMPLOYS 2 WAGE GRADE AND 17 GENERAL SCHEDULE EMPLOYEES.
/4/ THE CIVILIAN PERSONNEL OFFICE WAS CREATED AS A STAFF SECTION OF
THE ACTIVITY IN 1971.
/5/ TR., PGS. 46 AND 47.
/6/ SEE DEFENSE SUPPLY AGENCY, DEFENSE PROPERTY DISPOSAL OFFICE,
ABERDEEN PROVING GROUND, ABERDEEN, MARYLAND, A/SLMR NO. 615, FLRC NO.
74A-22.
/7/ CF. ARMY AND AIR FORCE EXCHANGE SERVICE, MACDILL AIR FORCE BASE
EXCHANGE, MACDILL AIR FORCE BASE, FLORIDA, A/SLMR NO. 514, FLRC NO.
75A-61, AND ARMY AND AIR FORCE EXCHANGE SERVICE, SOUTH TEXAS AREA
EXCHANGE, LACKLAND AIR FORCE BASE, TEXAS, A/SLMR NO. 669, FLRC NO.
75A-93.
7 A/SLMR 876; P. 633; CASE NO. 50-13073(UC); AUGUST 9, 1977.
AUGUST 9, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND DIRECTION OF ELECTION OF THE
ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
BUREAU OF FIELD OPERATIONS,
OFFICE OF PROGRAM OPERATIONS,
SOCIAL SECURITY ADMINISTRATION,
DEPARTMENT OF HEALTH, EDUCATION,
AND WELFARE, CHICAGO REGION V-A
A/SLMR NO. 876
THIS CASE INVOLVED A PETITION FOR CONSOLIDATION OF UNITS FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1395, AFL-CIO (AFGE)
SEEKING TO CONSOLIDATE TWO UNITS FOR WHICH IT IS THE CURRENT EXCLUSIVE
REPRESENTATIVE-- THE EMPLOYEES OF THE BUREAU OF FIELD OPERATIONS, SOCIAL
SECURITY ADMINISTRATION REGION V-A, ASSIGNED TO THE CHAMPAIGN, ILLINOIS,
SOCIAL SECURITY DISTRICT OFFICE AND THE EMPLOYEES OF THE BUREAU OF FIELD
OPERATIONS, SOCIAL SECURITY ADMINISTRATION, REGION V-A, ASSIGNED TO ALL
DISTRICT OFFICES, BRANCH OFFICES, TELESERVICE CENTERS AND THE
RECONCILIATION AND ANALYSIS UNIT, COOK COUNTY, ILLINOIS. THE ACTIVITY
CONTENDS THAT THE CONSOLIDATED UNIT REQUESTED BY THE AFGE WOULD NOT BE
APPROPRIATE BECAUSE THE EMPLOYEES IN THE EXISTING TWO UNITS DO NOT SHARE
A COMMUNITY OF INTEREST AND, BECAUSE OF THE GEOGRAPHICAL SEPARATION OF
THE EMPLOYEES, THE CONSOLIDATED UNIT WOULD NOT PROMOTE EFFICIENCY OF
OPERATIONS AND EFFECTIVE LABOR-MANAGEMENT RELATIONS DEALINGS.
THE ASSISTANT SECRETARY NOTED THAT IN VIEW OF THE CLEAR POLICY
GUIDELINES IN THE CONSOLIDATION OF UNITS AREA FORMULATED BY THE FEDERAL
LABOR RELATIONS COUNCIL (COUNCIL), THERE HAS BEEN ESTABLISHED, IN
EFFECT, A PRESUMPTION FAVORING THE APPROPRIATENESS OF PROPOSED
CONSOLIDATED UNITS. IN THE CONTEXT OF THESE POLICY CONSIDERATIONS, THE
ASSISTANT SECRETARY FOUND THAT THE PETITIONED FOR UNIT IS APPROPRIATE
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER. HE NOTED THAT
ALL EMPLOYEES IN THE UNIT SOUGHT SHARE A COMMON MISSION, COMMON OVERALL
SUPERVISION, UNIFORM JOB CLASSIFICATIONS, ESSENTIALLY COMMON WORKING
CONDITIONS AND UNIFORM PERSONNEL AND LABOR RELATIONS PRACTICES. UNDER
THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT THE EMPLOYEES IN
THE PROPOSED CONSOLIDATED UNIT SHARED A CLEAR AND IDENTIFIABLE COMMUNITY
OF INTEREST. FURTHERMORE, HE FOUND THAT AS ALL EMPLOYEES OF THE REGION
WERE SERVICED BY THE SAME PERSONNEL OFFICE, AND THAT THE REGIONAL
REPRESENTATIVE HAS BEEN DELEGATED THE ULTIMATE AUTHORITY FOR LABOR
RELATIONS MATTERS, THE PROPOSED CONSOLIDATED UNIT WOULD PROMOTE
EFFECTIVE DEALINGS. MOREOVER, NOTING THAT THE REGIONAL REPRESENTATIVE
COORDINATES THE OPERATION OF THE COMPONENTS WITHIN THE PROPOSED
CONSOLIDATED UNIT, AS WELL AS LABOR RELATIONS, GRIEVANCE AND PERSONNEL
MATTERS, THE ASSISTANT SECRETARY FOUND THAT THE PROPOSED CONSOLIDATED
UNIT WOULD PROMOTE THE EFFICIENCY OF THE AGENCY'S OPERATIONS. FINALLY,
THE ASSISTANT SECRETARY FOUND THAT THE PETITIONED FOR CONSOLIDATED UNIT,
WHICH PROVIDED FOR BARGAINING IN A SINGLE, RATHER THAN IN THE EXISTING
TWO BARGAINING UNITS, WOULD PROMOTE A MORE COMPREHENSIVE BARGAINING UNIT
STRUCTURE AND REDUCE FRAGMENTATION.
BUREAU OF FIELD OPERATIONS,
OFFICE OF PROGRAM OPERATIONS,
SOCIAL SECURITY ADMINISTRATION,
DEPARTMENT OF HEALTH, EDUCATION,
AND WELFARE, CHICAGO REGION V-A /1/
ACTIVITY
CASE NO. 50-13073(UC)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1395, AFL-CIO
PETITIONER
DECISION AND DIRECTION OF ELECTION
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER JAMES J. ZOUVAS.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
1395, AFL-CIO, HEREIN CALLED AFGE, SEEKS TO CONSOLIDATE TWO UNITS FOR
WHICH IT IS THE CURRENT EXCLUSIVE REPRESENTATIVE /2/ INTO A CONSOLIDATED
UNIT CONSISTING OF ALL EMPLOYEES IN THE CHAMPAIGN, ILLINOIS, SOCIAL
SECURITY DISTRICT OFFICE, AND ALL DISTRICT OFFICE AND BRANCH OFFICE
EMPLOYEES, TELESERVICE CENTER EMPLOYEES, AND RECONCILIATION AND ANALYSIS
UNIT EMPLOYEES OF THE BUREAU OF FIELD OPERATIONS, SOCIAL SECURITY
ADMINISTRATION REGION V-A, WHOSE OFFICE OR PARENT OFFICE IS LOCATED IN
COOK COUNTY, ILLINOIS, EXCLUDING ALL MANAGEMENT OFFICIALS, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, CONFIDENTIAL EMPLOYEES AND SUPERVISORS AS DEFINED IN EXECUTIVE
ORDER 11491, AS AMENDED. THE ACTIVITY CONTENDS THAT THE CONSOLIDATED
UNIT REQUESTED BY THE AFGE WOULD NOT BE APPROPRIATE BECAUSE THE
EMPLOYEES IN THE EXISTING TWO UNITS DO NOT SHARE A COMMUNITY OF INTEREST
AND, BECAUSE OF THE GEOGRAPHICAL SEPARATION OF THE EMPLOYEES, THE
CONSOLIDATED UNIT WOULD NOT PROMOTE EFFICIENCY OF AGENCY OPERATIONS AND
EFFECTIVE DEALINGS.
THE RECORD DISCLOSES THAT REGION V-A OF THE BUREAU OF FIELD
OPERATIONS IS UNDER THE DIRECTION OF A REGIONAL REPRESENTATIVE. /3/
WITHIN ITS CHICAGO, ILLINOIS, REGIONAL OFFICE THERE ARE THREE BRANCHES:
ANALYSIS AND APPRAISAL, MANAGEMENT, AND OPERATIONS. EACH BRANCH IS
HEADED BY A STAFF OFFICER, WHO REPORTS TO THE REGIONAL REPRESENTATIVE.
REGION V-A IS FURTHER DIVIDED INTO AREA OFFICES IN MINNESOTA, WISCONSIN,
INDIANA, AND THREE IN ILLINOIS, EACH HEADED BY AN AREA DIRECTOR, WHO
REPORTS DIRECTLY TO THE REGIONAL REPRESENTATIVE. THE AREA OFFICES ARE
FURTHER DIVIDED INTO DISTRICT OFFICES, BRANCH OFFICES, AND TELESERVICE
CENTERS. THE MANAGERS OF THESE OFFICES REPORT TO THEIR RESPECTIVE AREA
DIRECTOR. HOWEVER, THE RECORD REVEALS THAT DISTRICT OFFICE MANAGERS
HAVE SOME DEGREE OF AUTONOMY IN OPERATING THEIR OFFICES CONSISTENT WITH
THE GUIDELINES ESTABLISHED BY THE ACTIVITY'S NATIONAL OFFICE. ALTHOUGH
THE DISTRICT MANAGERS HAVE BEEN DELEGATED THE AUTHORITY TO BARGAIN WITH
LABOR ORGANIZATIONS AND HANDLE GRIEVANCES, THEY ARE RESPONSIBLE DIRECTLY
TO THE REGIONAL REPRESENTATIVE, WHO HAS THE ULTIMATE AUTHORITY IN THESE
MATTERS. THE AFGE, ON THE OTHER HAND, PROVIDES A STEWARD OR AN
INDIVIDUAL WITH SIMILAR AUTHORITY IN EACH DISTRICT OFFICE THROUGHOUT THE
REGION WHO REPRESENTS THE AFGE IN CONTRACT NEGOTIATIONS AND GRIEVANCES,
AND WHO MEETS ON A MONTHLY BASIS WITH HIS RESPECTIVE DISTRICT MANAGER TO
DISCUSS PROBLEMS. THE STEWARDS ARE UNDER THE SUPERVISION OF THE AFGE'S
VICE PRESIDENT, WHO MAY BE CALLED IN TO HANDLE ANY PROBLEM AREAS.
THE COOK COUNTY UNIT CONSISTS OF 9 DISTRICT OFFICES AND 2 TELESERVICE
CENTERS IN CHICAGO WITHIN AREA FOUR, AND 4 DISTRICT OFFICES IN COOK
COUNTY WITHIN AREA FIVE. THE CHAMPAIGN UNIT IS A SINGLE DISTRICT OFFICE
WITHIN AREA SIX.
THE MISSION OF THE ACTIVITY IS TO ACCEPT AND PROCESS APPLICATIONS FOR
BENEFITS UNDER THE RETIREMENT AND SURVIVORS INSURANCE PROGRAM, THE
DISABILITY PROGRAM, THE HEALTH INSURANCE PROGRAM AND THE SUPPLEMENTAL
SECURITY INCOME PROGRAM.
THE RECORD REVEALS THAT ALL DISTRICT OFFICES, BRANCH OFFICES AND
TELESERVICE CENTERS CONTAIN EMPLOYEES WITH SIMILAR JOB CLASSIFICATIONS,
PERFORMING SIMILAR WORK, AND THAT ALL EMPLOYEES THROUGHOUT THE REGION
ENJOY COMMON OVERALL SUPERVISION, UNIFORM PERSONNEL POLICIES AND
PRACTICES AND ESSENTIALLY SIMILAR WORKING CONDITIONS, WHICH MAY VARY
FROM AREA TO AREA DEPENDING UPON THE CASE LOAD AND THE CLIENTS SERVICED.
IN A RECENT DECISION, I FOUND THAT IN VIEW OF THE CLEAR POLICY
GUIDELINES IN THE CONSOLIDATION OF UNITS AREA FORMULATED BY THE FEDERAL
LABOR RELATIONS COUNCIL, THERE HAS BEEN ESTABLISHED, IN EFFECT, A
PRESUMPTION FAVORING THE APPROPRIATENESS OF PROPOSED CONSOLIDATED UNITS.
/4/ GIVEN THESE CIRCUMSTANCES, I FIND THAT THE PROPOSED CONSOLIDATED
UNIT IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER
EXECUTIVE ORDER 11491, AS AMENDED. THUS, AS NOTED ABOVE, ALL THE
EMPLOYEES IN THE PROPOSED CONSOLIDATED UNIT SHARE A COMMON MISSION,
COMMON OVERALL SUPERVISION, UNIFORM JOB CLASSIFICATIONS, ESSENTIALLY
COMMON WORKING CONDITIONS AND UNIFORM PERSONNEL AND LABOR RELATIONS
PRACTICES. BASED ON THESE CONSIDERATIONS, I FIND THAT THE EMPLOYEES IN
THE PROPOSED CONSOLIDATED UNIT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY
OF INTEREST. FURTHER, AS ALL EMPLOYEES OF THE REGION ARE SERVICED BY
THE SAME PERSONNEL OFFICE, AND THE REGIONAL REPRESENTATIVE HAS BEEN
DELEGATED THE ULTIMATE AUTHORITY FOR LABOR RELATIONS MATTERS, I FIND
THAT THE PROPOSED CONSOLIDATED UNIT WILL PROMOTE EFFECTIVE DEALINGS.
MOREOVER, NOTING THAT THE REGIONAL REPRESENTATIVE COORDINATES THE
OPERATIONS OF THE COMPONENTS WITHIN THE PROPOSED CONSOLIDATED UNIT, AS
WELL AS LABOR RELATIONS, GRIEVANCE AND PERSONNEL MATTERS, I FIND THAT
THE PROPOSED CONSOLIDATED UNIT WILL PROMOTE THE EFFICIENCY OF THE
AGENCY'S OPERATIONS. FINALLY, I FIND THAT THE PROPOSED CONSOLIDATED
UNIT, WHICH PROVIDES FOR BARGAINING IN A SINGLE UNIT, RATHER THAN IN THE
EXISTING TWO BARGAINING UNITS, WILL PROMOTE MORE COMPREHENSIVE
BARGAINING AND REDUCE FRAGMENTATION.
ACCORDINGLY, I FIND THAT THE FOLLOWING EMPLOYEES CONSTITUTE A UNIT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE
ORDER 11491, AS AMENDED:
ALL EMPLOYEES OF THE BUREAU OF FIELD OPERATIONS, SOCIAL SECURITY
ADMINISTRATION, REGION
V-A, ASSIGNED TO THE CHAMPAIGN, ILLINOIS, SOCIAL SECURITY DISTRICT
OFFICE, AND ALL EMPLOYEES
ASSIGNED TO DISTRICT OFFICES, BRANCH OFFICES, TELESERVICE CENTERS,
AND THE RECONCILIATION AND
ANALYSIS UNIT, COOK COUNTY, ILLINOIS, EXCLUDING ALL MANAGEMENT
OFFICIALS, PROFESSIONAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN
A PURELY CLERICAL
CAPACITY, CONFIDENTIAL EMPLOYEES AND SUPERVISORS AS DEFINED IN
EXECUTIVE ORDER 11491, AS
AMENDED. /5/
UNDER THE ORDER, ABSENT THE EXPRESSION OF THE AFFECTED EMPLOYEES'
DESIRE FOR AN ELECTION, AN AGENCY MAY ACCORD EXCLUSIVE RECOGNITION TO A
LABOR ORGANIZATION WITHOUT AN ELECTION WHERE THE APPROPRIATE UNIT, AS
ABOVE, HAS BEEN ESTABLISHED THROUGH THE CONSOLIDATION OF EXISTING
EXCLUSIVELY RECOGNIZED UNITS REPRESENTED BY THAT ORGANIZATION AND THE
PARTIES HAVE BILATERALLY AGREED TO CONSOLIDATION WITHOUT AN ELECTION.
IN THE INSTANT CASE, NEITHER PARTY REQUESTED AN ELECTION TO DETERMINE
WHETHER OR NOT THE EMPLOYEES DESIRE TO BE REPRESENTED IN THE PROPOSED
CONSOLIDATED UNIT BY THE AFGE. THEREFORE, I SHALL ORDER THAT THE
APPROPRIATE AREA ADMINISTRATOR REQUEST THAT THE ACTIVITY POST COPIES OF
A NOTICE TO EMPLOYEES, IN PLACES WHERE NOTICES ARE NORMALLY POSTED
AFFECTING EMPLOYEES IN THE PROPOSED CONSOLIDATED UNIT, WHICH STATES THAT
IF, WITHIN TEN DAYS FROM THE DATE OF POSTING OF SUCH NOTICE, 30 PERCENT
OR MORE OF THE EMPLOYEES IN THE PROPOSED CONSOLIDATED UNIT HAVE NOTIFIED
THE AREA ADMINISTRATOR IN WRITING THAT THEY DESIRE THE ASSISTANT
SECRETARY TO HOLD AN ELECTION ON THE ISSUE OF THE PROPOSED
CONSOLIDATION, SUCH AN ELECTION WILL BE SUPERVISED BY THE AREA
ADMINISTRATOR.
IF 30 PERCENT OR MORE OF THE EMPLOYEES IN THE PROPOSED CONSOLIDATED
UNIT DO NOT SEEK AN ELECTION, A CERTIFICATION WILL BE ISSUED BY THE AREA
ADMINISTRATOR TO THE AFGE FOR THE CONSOLIDATED UNIT WHICH I FIND TO BE
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION.
DIRECTION OF ELECTION
THE ACTIVITY SHALL POST, AS SOON AS POSSIBLE, COPIES OF A NOTICE TO
EMPLOYEES, WHICH SHALL BE FURNISHED BY THE APPROPRIATE AREA
ADMINISTRATOR, IN PLACES WHERE NOTICES ARE NORMALLY POSTED AFFECTING THE
EMPLOYEES IN THE CONSOLIDATED UNIT FOUND APPROPRIATE. SUCH NOTICE SHALL
CONFORM IN ALL RESPECTS TO THE REQUIREMENTS OF SECTION 202.2(H)(4) OF
THE ASSISTANT SECRETARY'S REGULATIONS. IF, WITHIN TEN DAYS FROM THE
DATE OF POSTING OF SUCH NOTICE, 30 PERCENT OR MORE OF THE EMPLOYEES IN
THE CONSOLIDATED UNIT FOUND APPROPRIATE ABOVE HAVE NOTIFIED THE AREA
ADMINISTRATOR IN WRITING THAT THEY DESIRE TO HOLD AN ELECTION ON THE
ISSUE OF THE PROPOSED CONSOLIDATION, 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 THE POSTING PERIOD
FOR THE NOTICE TO EMPLOYEES IS COMPLETED. THE APPROPRIATE AREA
ADMINISTRATOR 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 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 SHALL VOTE WHETHER THEY DESIRE
TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION IN THE
PROPOSED CONSOLIDATED UNIT BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1395, AFL-CIO, OR REMAIN IN THEIR EXISTING RECOGNIZED
UNITS REPRESENTED BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1395, AFL-CIO.
DATED, WASHINGTON, D.C.
AUGUST 9, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE AFGE WAS RECOGNIZED ON DECEMBER 30, 1969, AS THE EXCLUSIVE
BARGAINING REPRESENTATIVE IN A UNIT OF ALL DISTRICT OFFICE AND BRANCH
OFFICE EMPLOYEES, TELESERVICE CENTER EMPLOYEES AND RECONCILIATION AND
ANALYSIS UNIT EMPLOYEES OF THE BUREAU OF FIELD OPERATIONS, SOCIAL
SECURITY ADMINISTRATION, REGION V-A, WHOSE OFFICE OR PARENT OFFICE IS
LOCATED IN COOK COUNTY, ILLINOIS, AND WAS CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE IN A UNIT OF ALL NONSUPERVISORY EMPLOYEES IN THE
CHAMPAIGN, ILLINOIS SOCIAL SECURITY DISTRICT OFFICE ON SEPTEMBER 9,
1971.
/3/ THE REGIONAL REPRESENTATIVE IS ALSO KNOWN AS THE ASSISTANT
REGIONAL COMMISSIONER FOR FIELD OPERATIONS.
/4/ EDUCATION DIVISION, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
WASHINGTON, D.C., A/SLMR NO. 822.
/5/ AT THE HEARING, THE PARTIES STIPULATED THAT THERE ARE NO
PROFESSIONAL EMPLOYEES IN THE CURRENTLY EXISTING BARGAINING UNITS SOUGHT
TO BE CONSOLIDATED HEREIN.
7 A/SLMR 875; P. 631; CASE NO. 22-7727(CU); AUGUST 5, 1977.
AUGUST 5, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER CLARIFYING UNIT
OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
ENVIRONMENTAL PROTECTION AGENCY
A/SLMR NO. 875
THIS CASE INVOLVED A PETITION FOR CLARIFICATION OF UNIT (CU) FILED BY
THE ACTIVITY SEEKING CLARIFICATION OF THE STATUS OF ONE EMPLOYEE, AN
ENVIRONMENTAL PROTECTION SPECIALIST, GS-14, WHO SERVES AS A PROGRAM
MANAGER IN THE TECHNICAL ASSISTANCE BRANCH OF THE ACTIVITY'S OFFICE OF
SOLID WASTE MANAGEMENT PROGRAMS. THE ACTIVITY TOOK THE POSITION THAT
THE INCUMBENT WAS A SUPERVISOR AND, THEREFORE, SHOULD BE EXCLUDED FROM
THE EXISTING UNIT. THE EXCLUSIVE REPRESENTATIVE, THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3331, CONTENDED THAT
THE INCUMBENT WAS NOT A SUPERVISOR WITHIN THE MEANING OF SECTION 2(C) OF
THE ORDER.
THE ASSISTANT SECRETARY FOUND THAT THE EMPLOYEE IN THE DISPUTED
CLASSIFICATION WAS NOT A SUPERVISOR WITHIN THE MEANING OF THE ORDER. IN
THIS CONNECTION, THE RECORD REVEALED THAT WORK ASSIGNMENTS MADE BY THE
PROGRAM MANAGER TO THE UPWARD MOBILITY EMPLOYEE ASSIGNED TO HIS PROGRAM
WERE TRANSMITTED FROM HIGHER AUTHORITY THROUGH THE PROGRAM MANAGER, WERE
ROUTINE IN NATURE AND DID NOT REQUIRE THE USE OF INDEPENDENT JUDGEMENT.
MOREOVER, WHILE THE ACTIVITY CONTENDED THAT THE PROGRAM MANAGER HAD THE
AUTHORITY TO APPROVE LEAVE AND TRAVEL REQUESTS, MAKE RECOMMENDATIONS FOR
AWARDS AND RESOLVE MINOR EMPLOYEE COMPLAINTS, THERE WAS NO EVIDENCE THAT
THE PROGRAM MANAGER HAD EVER EXERCISED THIS AUTHORITY. NOR WAS THERE
EVIDENCE THAT HE HAD EXERCISED INDEPENDENT JUDGMENT ON THE ONE OCCASION
HE WAS INSTRUCTED TO COMPLETE A PERFORMANCE EVALUATION, OR THAT HIS
RECOMMENDATION WITH REGARD TO HIRING WAS EFFECTIVE. UNDER THESE
CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT THE INCUMBENT WAS NOT
A SUPERVISOR WITHIN THE MEANING OF THE ORDER AND CLARIFIED THE EXISTING
EXCLUSIVELY RECOGNIZED UNIT CONSISTENT WITH HIS FINDINGS.
ENVIRONMENTAL PROTECTION AGENCY
ACTIVITY-PETITIONER
CASE NO. 22-7727(CU)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3331
LABOR ORGANIZATION
DECISION AND ORDER CLARIFYING UNIT
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER C. DUFFY RAAP.
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
LABOR ORGANIZATION, THE ASSISTANT SECRETARY FINDS: /1/
THE ACTIVITY-PETITIONER, THE ENVIRONMENTAL PROTECTION AGENCY (EPA),
SEEKS TO CLARIFY THE STATUS OF AN ENVIRONMENTAL PROTECTION SPECIALIST,
GS-028-14, WHO IS EMPLOYED IN THE TECHNICAL ASSISTANCE BRANCH OF THE
OFFICE OF SOLID WASTE MANAGEMENT PROGRAMS. THE EPA CONTENDS THAT THE
ENVIRONMENTAL PROTECTION SPECIALIST IS A SUPERVISOR WITHIN THE MEANING
OF SECTION 2(C) OF THE ORDER. THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3331, WHICH IS THE EXCLUSIVE REPRESENTATIVE OF
CERTAIN EPA HEADQUARTERS EMPLOYEES, CONTENDS THAT THE EMPLOYEE IN
QUESTION IS NOT A SUPERVISOR AND IS, THEREFORE, ELIGIBLE FOR INCLUSION
WITHIN ITS EXCLUSIVELY RECOGNIZED UNIT.
THE OFFICE OF SOLID WASTE MANAGEMENT PROGRAMS, A COMPONENT OF THE
EPA, CONSISTS OF SEVERAL DIVISIONS INCLUDING THE RESOURCE RECOVERY
DIVISION WHICH IS RESPONSIBLE FOR IMPLEMENTING A NATIONAL PROGRAM TO
RECOVER ENERGY AND MATERIALS FROM SOLID WASTE STREAMS AND TO REDUCE THE
GENERATION OF SOLID WASTES. WITHIN THIS DIVISION IS THE TECHNICAL
ASSISTANCE BRANCH WHICH PROVIDES TECHNICAL ASSISTANCE, CONSULTATION,
ADVICE, STUDIES, ANALYSES AND INFORMATION TO PUBLIC AND PRIVATE
ORGANIZATIONS, AND TO AGENCIES AND INDIVIDUALS, REGARDING THE
IMPLEMENTATION OF RESOURCE RECOVERY SYSTEMS. THE TECHNICAL ASSISTANCE
BRANCH IS HEADED BY A BRANCH CHIEF WHO SUPERVISES THE LOCAL GOVERNMENT
ASSISTANCE PROGRAM AS WELL AS THE STATE AND FEDERAL GOVERNMENT
ASSISTANCE PROGRAM, EACH OF WHICH IS HEADED BY A PROGRAM MANAGER. THE
POSITION IN QUESTION, THE ENVIRONMENTAL PROTECTION SPECIALIST,
GS-028-14, IS THE PROGRAM MANAGER FOR THE STATE AND FEDERAL GOVERNMENT
ASSISTANCE PROGRAM.
THE PROGRAM MANAGER ADVISES STATE AND FEDERAL GOVERNMENTS ABOUT THEIR
RESOURCE RECOVERY PROGRAMS, FULFILLS THE RESPONSIBILITIES OF THE OFFICE
OF SOLID WASTE MANAGEMENT PROGRAMS RELATIVE TO THE IMPLEMENTATION OF THE
RESOURCE RECOVERY FACILITIES GUIDELINE IN ACCORDANCE WITH EXECUTIVE
ORDER 11752, AND PROVIDES GUIDANCE TO EPA REGIONAL OFFICES ON RESOURCE
RECOVERY ISSUES. WORKING WITH THE PROGRAM MANAGER IS AN ENVIRONMENTAL
PROTECTION SPECIALIST, GS-301-5, WHO IS IN AN UPWARD MOBILITY TRAINING
PROGRAM. /2/ THIS LATTER EMPLOYEE HAS SEVERAL ONGOING PROJECTS IN OTHER
BRANCHES OF THE ACTIVITY AND, IN THIS CONNECTION, MAY CONSULT WITH THE
OTHER BRANCH CHIEFS. HOWEVER, THE MAJORITY OF HER WORK IS CENTERED IN
THE STATE AND FEDERAL GOVERNMENT ASSISTANCE PROGRAM. WORK ASSIGNMENTS
TO THIS EMPLOYEE ARE CHANNELED FROM THE BRANCH CHIEF THROUGH THE PROGRAM
MANAGER WHO GENERALLY REVIEWS THE WORK BEFORE SUBMITTING IT TO THE
BRANCH CHIEF.
THE RECORD REVEALS THAT ON ONE OCCASION THE PROGRAM MANAGER WAS GIVEN
A CERTIFICATE OF ELIGIBLES BY THE BRANCH CHIEF AND WAS INSTRUCTED TO
INTERVIEW THOSE APPLICANTS HE FELT WERE QUALIFIED FOR A VACANT POSITION
IN THE STATE AND FEDERAL GOVERNMENT ASSISTANCE PROGRAM. ALTHOUGH THE
PROGRAM MANAGER RECOMMENDED ONE APPLICANT, THE BRANCH CHIEF SUBSEQUENTLY
INTERVIEWED THAT APPLICANT AND ANOTHER, NEITHER OF WHOM WAS HIRED. THE
RECORD REVEALS ALSO THAT THE ONE TIME, DURING THE BRANCH CHIEF'S
ABSENCE, THAT THE PROGRAM MANAGER WAS INSTRUCTED BY THE DEPUTY DIVISION
DIRECTOR TO COMPLETE A QUARTERLY PERFORMANCE EVALUATION FOR THE UPWARD
MOBILITY EMPLOYEE IN ACCORDANCE WITH HER TRAINING PROGRAM REQUIREMENTS,
HE MERELY COPIED FROM THE QUARTERLY EVALUATION WHICH HAD BEEN FILLED OUT
PREVIOUSLY BY THE BRANCH CHIEF. FURTHER, ALTHOUGH THE ACTIVITY CONTENDS
THAT THE PROGRAM MANAGER HAS THE AUTHORITY TO APPROVE LEAVE AND TRAVEL
REQUESTS, MAKE RECOMMENDATIONS FOR AWARDS AND RESOLVE MINOR EMPLOYEE
COMPLAINTS, THE RECORD CONTAINS NO EVIDENCE THAT HE HAS EVER EXERCISED
SUCH AUTHORITY.
BASED ON THE FOREGOING, I FIND THAT THE PROGRAM MANAGER IN THE
TECHNICAL ASSISTANCE BRANCH WHO IS CLASSIFIED AS AN ENVIRONMENTAL
PROTECTION SPECIALIST, GS-028-14, IS NOT A SUPERVISOR WITHIN THE MEANING
OF THE ORDER. THUS, THE EVIDENCE ESTABLISHES WITH RESPECT TO ASSIGNING
WORK THAT SUCH WORK ASSIGNMENTS AS ARE MADE BY THE PROGRAM MANAGER TO
THE EMPLOYEE IN THE UPWARD MOBILITY PROGRAM ARE TRANSMITTED BY THE
BRANCH CHIEF THROUGH THE PROGRAM MANAGER, AND THAT THE ASSIGNMENT OF
WORK IS ROUTINE IN NATURE AND DOES NOT REQUIRE THE EXERCISE OF
INDEPENDENT JUDGEMENT. MOREOVER, THE PROGRAM MANAGER DOES NOT REGULARLY
EVALUATE EMPLOYEES AND DID NOT EXERCISE INDEPENDENT JUDGEMENT ON THE ONE
OCCASION HE COMPLETED A PERFORMANCE EVALUATION. FURTHER, THE RECORD
REVEALS HE DOES NOT HAVE THE AUTHORITY TO HIRE, PROMOTE, TRANSFER,
SUSPEND, LAY OFF OR RECALL OR DISCIPLINE EMPLOYEES. NOR IS THERE
EVIDENCE THAT HIS RECOMMENDATIONS WITH RESPECT TO SUCH MATTERS AS HIRING
ARE EFFECTIVE OR THAT HE APPROVES LEAVE OR TRAVEL REQUESTS, MAKES
RECOMMENDATIONS FOR AWARDS OR RESOLVES GRIEVANCES OR MINOR EMPLOYEE
COMPLAINTS. UNDER ALL OF THESE CIRCUMSTANCES, I FIND THAT THE
ENVIRONMENTAL PROTECTION SPECIALIST, GS-028-14, IS NOT A SUPERVISOR
WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER, AND THAT THE EMPLOYEE
IN THIS CLASSIFICATION SHOULD BE INCLUDED IN THE EXISTING EXCLUSIVELY
RECOGNIZED UNIT.
ORDER
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, FOR
WHICH THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
3331, WAS CERTIFIED AS EXCLUSIVE REPRESENTATIVE ON OCTOBER 27, 1972, BE,
AND IT HEREBY IS, CLARIFIED BY INCLUDING IN SAID UNIT THE POSITION OF
ENVIRONMENTAL PROTECTION SPECIALIST, GS-028-14, THE PROGRAM MANAGER FOR
THE STATE AND FEDERAL GOVERNMENT ASSISTANCE PROGRAM.
DATED, WASHINGTON, D.C.
AUGUST 5, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ A REQUEST BY THE ACTIVITY-PETITIONER FOR AN EXTENSION OF TIME IN
WHICH TO FILE A POST-HEARING BRIEF WAS UNTIMELY FILED.
/2/ A GS-9 ENVIRONMENTAL PROTECTION SPECIALIST POSITION IN THE STATE
AND FEDERAL GOVERNMENT ASSISTANCE PROGRAM HAS BEEN UNOCCUPIED SINCE
SHORTLY AFTER THE PROGRAM MANAGER ASSUMED HIS POSITION IN AUGUST 1976.
7 A/SLMR 874; P. 626; CASE NO. 40-6685(GA); AUGUST 4, 1977.
AUGUST 4, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION ON ARBITRABILITY OF THE ASSISTANT
SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
INTERNAL REVENUE SERVICE,
GREENSBORO, NORTH CAROLINA
A/SLMR NO. 874
THIS CASE INVOLVED AN APPLICATION FOR DECISION ON GRIEVABILITY OR
ARBITRABILITY FILED BY THE NATIONAL TREASURY EMPLOYEES UNION (NTEU).
THE NTEU CONTENDED THAT ITS REQUEST FOR ADVISORY ARBITRATION PURSUANT TO
ARTICLE 34 OF THE MULTI-DISTRICT AGREEMENT BETWEEN THE INTERNAL REVENUE
SERVICE (IRS) AND THE NTEU WAS TIMELY SUBMITTED. THE IRS TOOK THE
POSITION THAT THE MULTI-DISTRICT AGREEMENT, WHICH STATED THAT, "THE
UNION HAS TWENTY-ONE (21) DAYS TO INVOKE ADVISORY ARBITRATION ON BEHALF
OF AN EMPLOYEE," REQUIRED THAT SUCH A REQUEST BE RECEIVED IN THE OFFICE
OF THE APPROPRIATE DISTRICT DIRECTOR OF THE IRS WITHIN 21 DAYS FROM THE
DATE THE EMPLOYEE WAS GIVEN NOTICE OF THE DECISION TO TAKE AN ADVERSE
ACTION, WHILE THE NTEU CLAIMED THAT THE AGREEMENT LANGUAGE ONLY REQUIRED
THAT THE REQUEST FOR ADVISORY ARBITRATION BE POSTMARKED WITHIN 21 DAYS
OF THE EFFECTIVE DATE OF THE ADVERSE ACTION.
THE ADMINISTRATIVE LAW JUDGE, AFTER NOTING THAT THE AGREEMENT WAS NOT
SPECIFIC AS TO WHEN THE 21-DAY PERIOD SHOULD BEGIN TO RUN, FOUND THAT
THE MOST REASONABLE INTERPRETATION OF THE AGREEMENT LANGUAGE SUGGESTED
THAT THE DATE OF DECISION (AND NOTIFICATION), RATHER THAN THE EFFECTIVE
DATE OF THE PROPOSED ACTION, WAS CONTROLLING. THUS, HE FOUND THAT THE
RELEVANT CONTRACTUAL LANGUAGE SPOKE IN TERMS OF A DECISION WITHOUT
MENTIONING THE EFFECTIVE DATE OF THE ACTION. MOREOVER, HE FOUND THAT
THERE IS NO LANGUAGE IN THE AGREEMENT WHICH SUPPORTED THE NTEU'S
CONTENTION, NOR WAS THERE ANY EVIDENCE TO SUPPORT A POLICY OR PRACTICE
OF GIVING THE NTEU 21 DAYS FROM THE EFFECTIVE DATE OF THE ADVERSE ACTION
TO INVOKE ADVISORY ARBITRATION. HE NOTED ALSO THAT, WHILE THE PARTIES
AGREED THAT THE ADVISORY ARBITRATION OF ADVERSE ACTIONS WAS AN
ALTERNATIVE TO THE CIVIL SERVICE COMMISSION'S ADVERSE ACTION APPEALS
PROCEDURES THERE WAS SUFFICIENT EVIDENCE TO ESTABLISH THAT THE PARTIES
AGREED THAT THE CONTRACTUAL PROCEDURE WOULD FOLLOW THE COMMISSION'S
PROCEDURE OF HAVING THE APPEAL PERIOD RUN FROM THE EFFECTIVE DATE OF AN
ADVERSE ACTION. THE ADMINISTRATIVE LAW JUDGE THEREFORE CONCLUDED THAT
THE NTEU'S REQUEST FOR ADVISORY ARBITRATION IN THE INSTANT MATTER HAD
BEEN UNTIMELY SUBMITTED TO THE ACTIVITY.
THE ASSISTANT SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS AND
RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE.
INTERNAL REVENUE SERVICE,
GREENSBORO, NORTH CAROLINA
ACTIVITY
CASE NO. 40-6685(GA)
AND
NATIONAL TREASURY EMPLOYEES
UNION
APPLICANT
DECISION ON ARBITRABILITY
ON APRIL 29, 1977, ADMINISTRATIVE LAW JUDGE SALVATORE J. ARRIGO
ISSUED HIS RECOMMENDED DECISION TO THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE APPLICANT'S REQUEST TO THE ACTIVITY FOR ADVISORY
ARBITRATION PURSUANT TO THE PARTIES' NEGOTIATED AGREEMENT HAD BEEN
UNTIMELY SUBMITTED. THEREAFTER, THE APPLICANT FILED EXCEPTIONS AND A
SUPPORTING BRIEF WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND THE ACTIVITY FILED AN ANSWERING BRIEF TO THE
APPLICANT'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 RECOMMENDED DECISION AND
THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE APPLICANT'S
EXCEPTIONS AND SUPPORTING BRIEF, AND THE ACTIVITY'S ANSWERING BRIEF, I
HEREBY ADOPT THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATION. /1/
FINDING
IT IS HEREBY FOUND THAT THE APPLICANT'S REQUEST TO THE ACTIVITY FOR
ADVISORY ARBITRATION PURSUANT TO THE PARTIES' NEGOTIATED ADVISORY
ARBITRATION PROCEDURE WAS NOT TIMELY SUBMITTED, AND, THEREFORE, THE
MATTER IS NOT SUBJECT TO ADVISORY ARBITRATION.
DATED, WASHINGTON, D.C.
AUGUST 4, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ ALTHOUGH THE ADMINISTRATIVE LAW JUDGE INADVERTENTLY FAILED TO
MAKE A RECOMMENDATION WITH RESPECT TO THE DISPOSITION OF THE APPLICATION
IN THE INSTANT PROCEEDING, IT IS CLEAR IN VIEW OF HIS FINDINGS AND
CONCLUSIONS THAT HE RECOMMENDS THAT THE MATTER BE FOUND NOT SUBJECT TO
THE ADVISORY ARBITRATION PROCEDURES OF THE NEGOTIATED AGREEMENT AS THE
APPLICANT'S REQUEST FOR ADVISORY ARBITRATION WAS UNTIMELY FILED.
U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
SUITE 700-1111 20TH STREET, N.W.
WASHINGTON, D.C. 20036
IN THE MATTER OF
INTERNAL REVENUE SERVICE
GREENSBORO, NORTH CAROLINA
ACTIVITY
CASE NO. 40-6685(GA)
AND
NATIONAL TREASURY EMPLOYEES UNION
APPLICANT
HARRY G. MASON, ESQUIRE
REGIONAL COUNSEL
DEPARTMENT OF THE TREASURY
P.O. BOX 1074
ATLANTA, GEORGIA 30301
FOR THE ACTIVITY
MICHAEL BRANDOW
NATIONAL FIELD REPRESENTATIVE
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W.
SUITE 1101
WASHINGTON, D.C. 20006
AND
ROBERT TOBIAS, ESQUIRE
GENERAL COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W.
SUITE 1101
WASHINGTON, D.C. 20006
FOR THE APPLICANT
BEFORE: SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION
PRELIMINARY STATEMENT
THIS MATTER ARISES FROM AN APPLICATION FOR DECISION ON GRIEVABILITY
OR ARBITRABILITY UNDER SECTION 13 OF EXECUTIVE ORDER 11491, AS AMENDED
(HEREINAFTER REFERRED TO AS THE ORDER). THE APPLICATION WAS FILED BY
NATIONAL TREASURY EMPLOYEES UNION (HEREINAFTER REFERRED TO AS THE UNION
OR THE APPLICANT) CHALLENGING A DETERMINATION BY INTERNAL REVENUE
SERVICE, GREENSBORO, NORTH CAROLINA (HEREINAFTER REFERRED TO AS THE
ACTIVITY) THAT A REQUEST BY THE UNION TO INVOKE ARBITRATION WAS UNTIMELY
UNDER THE TERMS OF THE PARTIES EXISTING COLLECTIVE BARGAINING AGREEMENT.
PURSUANT TO A NOTICE OF HEARING ISSUED BY THE LABOR-MANAGEMENT
SERVICES ADMINISTRATION ON NOVEMBER 30, 1976, A HEARING ON THE
APPLICATION WAS HELD IN GREENSBORO, NORTH CAROLINA ON FEBRUARY 2, 1977.
AT THE HEARING THE PARTIES WERE REPRESENTED AND AFFORDED FULL
OPPORTUNITY TO ADDUCE EVIDENCE, CALL, EXAMINE AND CROSS-EXAMINE
WITNESSES AND ARGUE ORALLY. THEREAFTER, BRIEFS WERE FILED BY BOTH
PARTIES.
UPON THE ENTIRE RECORD IN THIS MATTER AND FROM MY EVALUATION OF THE
EVIDENCE AND OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE
FOLLOWING:
FINDINGS AND CONCLUSIONS
ON FEBRUARY 19, 1975 ROBERT E. LEBAUBE, THE ACTIVITY'S DISTRICT
DIRECTOR, NOTIFIED EMPLOYEE HATTIE ANGEL BY LETTER THAT SHE WAS TO BE
REMOVED FROM EMPLOYMENT EFFECTIVE CLOSE OF BUSINESS FEBRUARY 28, 1975.
PURSUANT TO APPROPRIATE CIVIL SERVICE REGULATIONS THE LETTER, INTER
ALIA, INFORMED MRS. ANGEL THAT AN APPEAL OF THIS ADVERSE ACTION COULD BE
MADE TO THE CIVIL SERVICE COMMISSION AT ANY TIME BUT NOT LATER THAN
FIFTEEN DAYS FROM THE EFFECTIVE DATE OF HER REMOVAL. BY LETTER DATED
MARCH 18, 1975, WHICH WAS POSTMARKED MARCH 20 AND RECEIVED BY THE
ACTIVITY ON MARCH 24, THE UNION NOTIFIED THE ACTIVITY THAT IT WAS
INVOKING ADVISORY ARBITRATION OF THE MATTER AS PROVIDED BY THE PARTIES
AGREEMENT. IN A LETTER DATED MARCH 26, 1975 DISTRICT DIRECTOR LEBAUBE
REJECTED AS UNTIMELY THE REQUEST FOR ARBITRATION. /1/ LEBAUBE BASED THE
REJECTION ON ARTICLE 33, SECTION 4 OF THE PARTIES MULTI-DISTRICT
COLLECTIVE BARGAINING AGREEMENT (HEREIN SOMETIMES REFERRED TO AS
MDA-II). ARTICLE 33, SECTION 4 OF MDA-II WHICH WAS IN EFFECT AT ALL
TIMES RELEVANT HERETO PROVIDES, IN PERTINENT PART:
"A. AN OFFICIAL WHO SUSTAINS THE PROPOSED CHARGES AGAINST AN
EMPLOYEE IN AN ADVERSE ACTION
WILL SET FORTH HIS FINDINGS WITH RESPECT TO EACH CHARGE AND
SPECIFICATION AGAINST THE EMPLOYEE
IN HIS NOTICE OF DECISION.
"B. 1. AN EMPLOYEE AGAINST WHOM CHARGES ARE SUSTAINED MAY APPEAL THE
DECISION ON ANY BASIS
ALLOWED BY APPLICABLE LAWS AND REGULATIONS.
2. THE UNION HAS TWENTY-ONE (21) DAYS TO INVOKE ADVISORY ARBITRATION
ON BEHALF OF AN
EMPLOYEE.
"C. AN EMPLOYEE DISSATISFIED WITH THE DECISION MAY, WITH THE
CONCURRENCE OF THE UNION,
APPEAL PURSUANT TO ARTICLE 34, EXCEPT THAT THE FOLLOWING MATTERS WILL
NOT BE SUBJECT TO
ARBITRATION. . . . " /2/
THUS, THE ACTIVITY TAKES THE POSITION THAT THE TERMS OF THE AGREEMENT
REQUIRE THAT A REQUEST FOR ADVISORY ARBITRATION MUST BE RECEIVED BY THE
ACTIVITY WITHIN TWENTY-ONE DAYS FROM THE TIME THE EMPLOYEE WAS GIVEN
NOTICE OF THE DECISION TO TAKE AN ADVERSE ARBITRATION WAS TIMELY FILED
SINCE THE REQUEST WAS POSTMARKED WITHIN 21 DAYS FROM THE EFFECTIVE DATE
OF THE ADVERSE ACTION. /3/ ACCORDING TO THE APPLICANT, THE PROVISION
FOR ADVISORY ARBITRATION WAS MEANT TO BE A SUBSTITUTE FOR AN APPEAL TO
THE CIVIL SERVICE COMMISSION WHICH COULD BE FILED WITHIN FIFTEEN DAYS
FROM THE EFFECTIVE DATE OF THE ADVERSE ACTION.
MDA-II, SIGNED IN MAY 1974, SETS FORTH IN SEPARATE ARTICLES, TWO
DISTINCT PROCEDURES TO DEAL WITH DISCIPLINARY AND ADVERSE ACTIONS.
DISCIPLINARY ACTIONS-ORAL ADMONISHMENTS CONFIRMED IN WRITING, A WRITTEN
REPRIMAND, OR A SUSPENSION OF 30 DAYS OR LESS-ARE TREATED IN ARTICLE 32
OF THE AGREEMENT. UNDER THAT ARTICLE AN ACTIVITY'S FINAL DECISION TO
IMPOSE A DISCIPLINARY ACTION MAY GENERALLY BE CHALLENGED BY RECOURSE TO
THE PARTIES NEGOTIATED FOUR STEP GRIEVANCE PROCEDURE. THE ACTIVITY'S
ADVERSE DECISION AT STEP FOUR IS THEN GENERALLY APPEALABLE TO BINDING
ARBITRATION IF THE UNION, WITHIN TWENTY-ONE DAYS OF THE DECISION,
NOTIFIES THE ACTIVITY OF ITS DESIRE TO APPEAL. /4/
ADVERSE ACTION APPEAL PROCEDURES ARE CONTAINED IN ARTICLE 34 OF THE
AGREEMENT, THE RELEVANT PORTION OF WHICH IS CONTAINED IN SECTION 4, AS
SET FORTH ABOVE. /5/ WHILE SECTION 4.B.2. OF THAT ARTICLE INDICATES THE
UNION HAS TWENTY-ONE DAYS TO INVOKE ADVISORY ARBITRATION, IT DOES NOT
SPECIFY WHETHER THE TIME BEGINS TO RUN FROM THE DATE OF THE AGENCY'S
DECISION OR THE EFFECTIVE DATE OF THE ACTION. INDEED, PARTIES AGREE
THAT DURING THE NEGOTIATIONS WHICH CULMINATED IN MDA-II, SIGNED MAY
1974, THERE WERE NO DISCUSSIONS PERTAINING TO THE LANGUAGE IN QUESTION.
RATHER, THE BARGAINING HISTORY FOR THAT SECTION OF THE AGREEMENT HAD IS
ORIGINAL IN THE NEGOTIATIONS FOR MDA-I WHICH BECAME EFFECTIVE IN JUNE
1972. /6/
MDA-I PLACED BOTH DISCIPLINARY AND ADVERSE ACTIONS UNDER THE SAME
ARTICLE. THUS, WITH REGARD TO ADVERSE ACTION SITUATIONS, SECTION 4 OF
ARTICLE 31 PROVIDES AS FOLLOWS:
"A. AN OFFICIAL WHO SUSTAINS THE PROPOSED CHARGES AGAINST AN
EMPLOYEE IN AN ADVERSE ACTION
WILL SET FORTH HIS FINDINGS WITH RESPECT TO EACH CHARGE AND
SPECIFICATION AGAINST THE EMPLOYEE
IN HIS NOTICE OF DECISION.
"B. AN EMPLOYEE AGAINST WHOM CHARGES ARE SUSTAINED MAY APPEAL THE
DECISION ON ANY BASIS
ALLOWED BY APPLICABLE LAWS AND REGULATIONS.
"C. AN EMPLOYEE DISSATISFIED WITH THE DECISION MAY WITH THE
CONCURRENCE OF THE UNION,
APPEAL PURSUANT TO ARTICLE 32, EXCEPT THAT THE FOLLOWING MATTERS WILL
NOT BE SUBJECT TO
ARBITRATION. . . . " /7/
SECTION 6 OF ARTICLE 31 SETS FORTH THE PROCEDURE TO CHALLENGE AN
UNFAVORABLE ACTIVITY DECISION IN A DISCIPLINARY ACTION SITUATION AND
PROVIDES:
"A. AN EMPLOYEE DISSATISFIED WITH THE EMPLOYER'S DECISION ON A
DISCIPLINARY MATTER AS
DEFINED IN SECTION 1 OF THIS ARTICLE MAY FILE A GRIEVANCE PURSUANT TO
ARTICLE 33 OF THIS
AGREEMENT.
"B. ADVERSE DECISION RENDERED IN STEP 4 OF THE GRIEVANCE PROCEDURE
MAY BE APPEALED TO
ARBITRATION AS PROVIDED IN ARTICLE 34 UNDER THE FOLLOWING CONDITIONS;
1. THE UNION NOTIFIES THE OFFICE OF THE DISTRICT DIRECTOR BY
CERTIFIED MAIL WITH
TWENTY-ONE (21) DAYS OF THE DECISION OF ITS DESIRE TO APPEAL. . . .
"
WHILE NO SPECIFIC TIME IN WHICH TO APPEAL AN ADVERSE ACTION IS
MENTIONED IN MDA-I, THE PARTIES ACKNOWLEDGE THAT THE TWENTY-ONE DAYS SET
OUT IN ARTICLE 31 SECTION 6 ABOVE WAS APPLICABLE TO SUCH SITUATIONS.
HOWEVER, NOWHERE DOES THE AGREEMENT EXPRESSLY STATE WHETHER THE
TWENTY-ONE DAYS WILL BEGIN TO RUN FROM THE DATE OF DECISION OR EFFECTIVE
DATE OF THE ACTION.
DURING THE NEGOTIATIONS FOR MDA-I THE PARTIES REALIZED THAT THE
ADVISORY ARBITRATION OF ADVERSE ACTIONS WOULD BE A SUBSTITUTE FOR AN
APPEAL TO THE CIVIL SERVICE COMMISSION. SINCE THE APPEAL RIGHT TO THE
COMMISSION VESTS IN THE INDIVIDUAL THROUGH STATUTE AND MAY NOT BE
BARGAINED AWAY BY THE UNION, ONLY THE UNION WAS GIVEN THE RIGHT TO
INVOKE ADVISORY ARBITRATION. IN RETURN, THE UNION GAVE THE ACTIVITY ITS
ASSURANCE THAT IT WOULD REPRESENT THE INDIVIDUAL EMPLOYEE IN EITHER AN
APPEAL TO THE COMMISSION OR IN ADVISORY ARBITRATION, BUT NOT BOTH.
SINCE THE UNION'S NATIONAL HEADQUARTERS IN WASHINGTON WOULD IN EACH CASE
DETERMINE WHETHER ADVISORY ARBITRATION WOULD BE INVOKED, THE UNION
DESIRED AND WAS GIVEN SIX DAYS FOR MAILING PURPOSES BEYOND THE FIFTEEN
DAYS FOR APPEAL PROVIDED IN THE FEDERAL PERSONNEL MANUAL FOR ADVERSE
ACTION APPEALS. ACCORDINGLY, THE PARTIES AGREED THAT, WHEN AN EMPLOYEE
RECEIVED THE ACTIVITY'S FINAL DECISION TO IMPOSE AN ADVERSE ACTION, THE
EMPLOYEE RECEIVED TWO COPIES OF THE DECISION, THE SECOND CONTAINING THE
NOTATION "YOU MAY AT YOUR OPTION GIVE THIS COPY TO THE UNION." FURTHER,
THE ACTIVITY WISHED TO HAVE A CONSISTENT TWENTY-ONE DAY APPEAL PERIOD IN
THE AGREEMENT FOR EASE OF ADMINISTRATION. THUS, UNDER THE AGREEMENT
THERE WOULD BE A TWENTY-ONE DAYS TO REQUEST ARBITRATION IN DISCIPLINARY
ACTION SITUATIONS, GRIEVANCE MATTERS AND ADVERSE ACTIONS. HOWEVER, NO
SPECIFIC MENTION WAS MADE AS TO WHETHER THE TIMES BEING CONSIDERED IN
ADVERSE ACTIONS WERE TO BE FROM DATE OF ADVERSE DECISION OR EFFECTIVE
DATE OF ACTION.
ALTHOUGH THE AGREEMENTS DO NOT SPECIFICALLY STATE WHETHER THE
TWENTY-ONE DAYS WILL BEGIN TO RUN FROM THE DATE OF THE DECISION OR THE
EFFECTIVE DATE OF THE ADVERSE ACTION, I FIND THAT THE MOST REASONABLE
INTERPRETATION OF THE CONTRACT LANGUAGE SUGGESTS THAT THE DATE OF
DECISION (AND NOTIFICATION) IS CONTROLLING. THE RELEVANT CONTRACT
LANGUAGE CONTAINS NO MENTION OF THE EFFECTIVE DATE OF THE ACTION.
HOWEVER, ARTICLE 33, SECTION 4 OF MDA-II, ABOVE, CONSISTENTLY REFERS TO
THE "DECISION" AS BEING THE CRITICAL ACT AGAINST WHICH THE EMPLOYEE MAY
APPEAL. WHILE ONLY THE UNION MAY INVOKE BINDING ARBITRATION OF THE
ACTIVITY'S STEP 4 DECISION. THUS, THE AGREEMENT CONSISTENTLY REFLECTS
THAT TWENTY-ONE DAYS FROM THE ACTIVITY'S DECISION WHICH IS UNFAVORABLE
TO THE EMPLOYEE IS THE TIME WITHIN WHICH ACTION MUST BE TAKEN.
MOREOVER, THERE IS NO LANGUAGE IN THE AGREEMENT WHICH SUPPORTS THE
UNION'S CONTENTION NOR IS THERE ANY EVIDENCE TO SUPPORT A POLICY OR
PRACTICE OF GIVING THE UNION TWENTY-ONE DAYS FROM THE EFFECTIVE DATE OF
THE ADVERSE ACTION TO INVOKE ADVISORY ARBITRATION.
FURTHER, WHILE A "SUBSTITUTE" FOR THE CIVIL SERVICE COMMISSION'S
ADVERSE ACTION APPEALS PROCEDURE WAS PROVIDED BY THE AGREEMENT, THE
EVIDENCE IS INSUFFICIENT TO ESTABLISH THAT THE PARTIES AGREED THAT THE
ADVISORY ARBITRATION PROCEDURE WOULD EXACTLY DUPLICATE THE TIME ALLOWED
TO PURSUE AN APPEAL UNDER THE COMMISSION'S PROCEDURES (PLUS SIX DAYS).
RATHER, ALTHOUGH FIFTEEN DAYS WAS A POINT OF REFERENCE IN ESTABLISHING
THE TIME ALLOWED THE UNION TO INVOKE ADVISORY ARBITRATION, THE LANGUAGE
ULTIMATELY DECIDED ON BY THE PARTIES INDICATES THAT, CONSISTENT WITH
OTHER APPEALS PROCEDURES IN THE AGREEMENT, TWENTY-ONE DAYS FROM THE
ACTIVITY'S DECISION TO IMPOSE AN ADVERSE ACTION WAS THE CONTROLLING
PERIOD.
ACCORDINGLY, IN ALL THE CIRCUMSTANCES HEREIN I FIND AND CONCLUDE THAT
UNDER THE TERMS OF THE PARTIES AGREEMENT, THE UNION'S REQUEST TO
ARBITRATE THE ADVERSE ACTION WAS UNTIMELY.
SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
DATED: 29 APR 1977
WASHINGTON, D.C.
/1/ SUBSEQUENT TO LEBAUBE'S ISSUING HIS DECISION ON MARCH 26, 1977
THE UNION BROUGHT THE MATTER TO THE ATTENTION OF ROBERT HASTINGS, THE
ACTIVITY'S CHIEF OF UNION RELATIONS BRANCH, WASHINGTON, D.C., AND SOUGHT
TO HAVE LEBAUBE'S DECISION REVERSED. HASTINGS INFORMED THE UNION THAT
HE WOULD "SEE WHAT HE COULD DO" IN THE MATTER. HOWEVER, LEBAUBE'S
DECISION WAS NEVER CHANGED. IN THESE CIRCUMSTANCES I FIND THAT
HASTINGS' COMMENTS HAD NO EFFECT UPON LEBAUBE'S MARCH 26 DECISION ON
BEHALF OF THE ACTIVITY.
/2/ ARTICLE 34 OF THE AGREEMENT PROVIDES FOR ADVISORY ARBITRATION OF
ADVERSE ACTIONS.
/3/ THE PARTIES ALSO DISAGREE AS TO WHETHER THE DATE OF RECEIPT OR
POSTMARK CONTROLS WHEN COMPUTING THE NUMBER OF DAYS UNDER THIS
PROVISION. HOWEVER, I FIND IT UNNECESSARY TO REACH THIS ISSUE.
/4/ UNDER THIS GRIEVANCE PROCEDURE ALL UNFAVORABLE DECISIONS RENDERED
AT STEP FOUR MAY BE APPEALED TO ARBITRATION IF THE APPEAL IS MADE WITHIN
TWENTY-ONE DAYS OF THE ACTIVITY'S DECISION.
/5/ ADVERSE ACTIONS ARE DEFINED IN THE AGREEMENT AND INCLUDE
REDUCTIONS IN GRADE OR PAY, REMOVALS AND SUSPENSION FOR MORE THAN THIRTY
DAYS.
/6/ THE PARTIES ALSO AGREE THAT THE RELEVANT PORTIONS OF MDA-II
CONTAIN NO CHANGE IN MEANING FROM THAT FOUND IN MDA-I AND MERELY
REFLECTS AN ATTEMPT TO PRESENT THE SUBJECT MATTER IN A MORE COGENT
MANNER.
/7/ ARTICLE 32 OF MDA-I CONTAINS THE ADVISORY ARBITRATION PROCEDURES
FOR ADVERSE ACTIONS.
7 A/SLMR 873; P. 617; CASE NO. 42-2529(CA); AUGUST 4, 1977.
AUGUST 4, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF SUPPLEMENTAL DECISION AND ORDER
OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
NAVAL AIR REWORK FACILITY, PENSACOLA, FLORIDA,
AND SECRETARY OF THE NAVY, WASHINGTON, D.C.
A/SLMR NO. 873
ON JANUARY 26, 1976, THE ASSISTANT SECRETARY ISSUED HIS DECISION AND
ORDER IN A/SLMR NO. 608, IN WHICH HE FOUND THAT THE RESPONDENT SECRETARY
OF THE NAVY, DEPARTMENT OF THE NAVY, WASHINGTON, D.C. (AGENCY) HAD
VIOLATED SECTION 19(A)(1) OF THE ORDER BY DIRECTING THE RESPONDENT NAVAL
AIR REWORK FACILITY, PENSACOLA, FLORIDA (ACTIVITY) TO TERMINATE
ENVIRONMENTAL DIFFERENTIAL PAY PAID PURSUANT TO CERTAIN ARBITRATION
AWARDS PROCESSED UNDER THE ACTIVITY'S NEGOTIATED AGREEMENT WITH THE
COMPLAINANT. HE FOUND ALSO THAT THE ACTIVITY VIOLATED SECTION 19(A)(1)
AND (6) OF THE ORDER BY UNILATERALLY TERMINATING SUCH PAYMENTS.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED, AMONG OTHER THINGS, THAT
THE ACTIVITY AND AGENCY CEASE AND DESIST FROM THE CONDUCT FOUND
VIOLATIVE OF THE ORDER, AND THAT THE ACTIVITY REIMBURSE EACH OF THE
AFFECTED EMPLOYEES ALL MONIES DEDUCTED OR WITHHELD FROM THEM BY REASON
OF THE TERMINATION OF THE ENVIRONMENTAL DIFFERENTIAL PAY.
ON MAY 4, 1977, THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL) ISSUED
ITS DECISION ON APPEAL IN FLRC NO. 76A-37, SUSTAINING IN PART AND
SETTING ASIDE IN PART THE ASSISTANT SECRETARY'S DECISION IN A/SLMR NO.
608, AND REMANDING THE CASE TO THE ASSISTANT SECRETARY FOR APPROPRIATE
ACTION CONSISTENT WITH ITS DECISION. IN REMANDING THE CASE TO THE
ASSISTANT SECRETARY FOR APPROPRIATE ACTION CONSISTENT WITH ITS DECISION.
IN REMANDING THE CASE TO THE ASSISTANT SECRETARY, THE COUNCIL, AMONG
OTHER THINGS, ENUNCIATED CERTAIN PRINCIPLES WHICH IT BELIEVED PROPERLY
CONTROLLED IN THE SUBJECT CASE. THUS, IN THE COUNCIL'S VIEW, WHEN THE
ASSISTANT SECRETARY FINDS ACTS OR PRACTICES WHICH CONSTITUTE UNFAIR
LABOR PRACTICES BY "AGENCY MANAGEMENT," AS DEFINED IN SECTION 2(F) OF
THE ORDER, THE ORDER PROVIDES NO BASIS FOR DRAWING ARTIFICIAL
DISTINCTION BETWEEN ORGANIZATIONAL LEVELS OF SUCH AGENCY MANAGEMENT SO
AS TO RELIEVE THEM OF THE RESPONSIBILITY FOR THEIR ACTS, WHICH WOULD
OTHERWISE BE VIOLATIVE OF THE ORDER. THE COUNCIL FOUND THAT NO
DISTINCTION EXISTS BETWEEN ALLEGED VIOLATIONS OF 19(A)(6), ON THE ONE
HAND, AND ALLEGED VIOLATIONS OF THE REMAINDER OF 19(A) ON THE OTHER
HAND, WHEN THE ACTS AND CONDUCT ARE ATTRIBUTED TO AGENCY MANAGEMENT AT A
HIGHER ORGANIZATIONAL LEVEL WITHIN THE AGENCY THAN THE LEVEL OF
EXCLUSIVE RECOGNITION. FURTHER, THE COUNCIL CONCLUDED THAT ALTHOUGH 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 ANY PART
OF SECTION 19(A) OF THE ORDER BY AGENCY MANAGEMENT, SUCH CONDUCT MAY
NOT, STANDING ALONE, PROVIDE THE BASIS FOR FINDING A SEPARATE VIOLATION
OF THE ORDER BY "AGENCY MANAGEMENT" AT A LOWER ORGANIZATIONAL LEVEL OF
THE AGENCY WHERE THE UNIT OF EXCLUSIVE RECOGNITION EXISTS. ACCORDINGLY,
THE COUNCIL CONCLUDED THAT WHERE, AS IN THE INSTANT CASE, AGENCY
MANAGEMENT AT THE DEPARTMENTAL LEVEL DIRECTED THE TERMINATION OF
ENVIRONMENTAL DIFFERENTIAL PAY BY THE ACTIVITY, AND THE PAY WAS
TERMINATED AS A RESULT OF SUCH DIRECTION, THE CONDUCT OF THE AGENCY
COULD BE CONSIDERED VIOLATIVE OF SECTION 19(A)(6) OF THE ORDER, BUT A
SEPARATE FINDING OF VIOLATION WOULD NOT LIE AGAINST THE ACTIVITY BASED
SOLELY ON ITS MINISTERIAL ACTIONS IN IMPLEMENTING THE HIGHER AGENCY
DIRECTION, AS THE ACTIVITY HAD NO CHOICE BUT TO SO COMPLY.
THE ASSISTANT SECRETARY, CONSISTENT WITH THE GUIDELINES ESTABLISHED
BY THE COUNCIL IN ITS DECISION, MODIFIED THE ORDER IN A/SLMR NO. 608 TO
REQUIRE THE AGENCY TO CEASE AND DESIST FROM THE CONDUCT FOUND VIOLATIVE
OF THE ORDER AND TO TAKE CERTAIN AFFIRMATIVE ACTIONS, AND HE DISMISSED
THOSE PORTIONS OF THE COMPLAINT ALLEGING VIOLATIONS OF SECTION 19(A)(1)
AND (6) OF THE ORDER BY THE ACTIVITY.
NAVAL AIR REWORK FACILITY,
PENSACOLA, FLORIDA
RESPONDENT
CASE NO. 42-2529(CA), A/SLMR NO. 608, FLRC NO. 76A-37
AND
SECRETARY OF THE NAVY,
DEPARTMENT OF THE NAVY,
WASHINGTON, D.C.
RESPONDENT
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1960
COMPLAINANT
SUPPLEMENTAL DECISION AND ORDER
ON APRIL 17, 1975, ADMINISTRATIVE LAW JUDGE RHEA M. BURROW ISSUED HIS
REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES. IN
ESSENCE, THE COMPLAINT IN THE INSTANT CASE ALLEGED THAT THE RESPONDENT
NAVAL AIR REWORK FACILITY, PENSACOLA, FLORIDA (ACTIVITY) AND THE
RESPONDENT SECRETARY OF THE NAVY, DEPARTMENT OF THE NAVY, WASHINGTON,
D.C. (AGENCY) HAD VIOLATED SECTION 19(A)(1) AND (6) AND SECTION 19(A)(1)
OF THE EXECUTIVE ORDER, RESPECTIVELY, BASED ON THE AGENCY'S DIRECTING
THE ACTIVITY TO TERMINATE ENVIRONMENTAL DIFFERENTIAL PAY FOR TWO CLASSES
OF THE LATTER'S EMPLOYEES, WHICH DIFFERENTIAL PAY HAD BEEN AWARDED IN
TWO SEPARATE ARBITRATION CASES PROCESSED UNDER THE NEGOTIATED AGREEMENT
BETWEEN THE COMPLAINANT AND THE ACTIVITY, AND ON THE LATTER'S
TERMINATION OF SUCH PAY.
ON JANUARY 26, 1976, IN A/SLMR NO. 608, THE ASSISTANT SECRETARY FOUND
THAT THE AGENCY HAD VIOLATED SECTION 19(A)(1) OF THE ORDER BY DIRECTING
THE ACTIVITY TO TERMINATE DIFFERENTIAL PAY PAID PURSUANT TO THE
ARBITRATION AWARDS. HE FOUND ALSO THAT THE ACTIVITY VIOLATED SECTION
19(A)(1) AND (6) OF THE ORDER BY UNILATERALLY TERMINATING SUCH PAYMENTS.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED, AMONG OTHER THINGS, THAT
THE ACTIVITY AND AGENCY CEASE AND DESIST FROM THE CONDUCT FOUND
VIOLATIVE OF THE ORDER, AND THAT THE ACTIVITY REIMBURSE EACH OF THE
AFFECTED EMPLOYEES ALL MONIES DEDUCTED OR WITHHELD FROM THEM BY REASON
OF THE TERMINATION OF THE ARBITRATION AWARDS.
ON JULY 16, 1976, THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL)
ACCEPTED THE AGENCY'S PETITION FOR REVIEW (FLRC NO. 76A-37) AND GRANTED
ITS REQUEST FOR A STAY OF THE ASSISTANT SECRETARY'S DECISION AND ORDER.
ON OCTOBER 7, 1976, THE COMPTROLLER GENERAL, PURSUANT TO A REQUEST OF
THE AGENCY, RULED THAT THE ENVIRONMENTAL DIFFERENTIAL PAY AWARDS
INVOLVED HEREIN WERE LEGAL AND MIGHT BE REINSTATED, AND "(E)MPLOYEES WHO
LOST THE ENVIRONMENTAL DIFFERENTIAL AFTER THE AWARDS WERE TERMINATED . .
. ARE ENTITLED TO BACK PAY . . . AS ORDERED BY THE ASSISTANT SECRETARY
OF LABOR." (56 COMPTROLLER GENERAL 8(1976)). THEREAFTER, ON OCTOBER 14,
1976, THE COMPLAINANT FILED A MOTION WITH THE COUNCIL SEEKING TO
DISSOLVE THE STAY OF THE ASSISTANT SECRETARY'S REMEDIAL ORDER INSOFAR AS
IT RELATED TO THAT PART OF THE ORDER WHICH PROVIDED FOR THE PAYMENT OF
MONIES TO THE EMPLOYEES INVOLVED. IN VIEW OF THE COMPTROLLER GENERAL'S
DECISION, AND WITHOUT OBJECTION BY THE AGENCY, ON OCTOBER 27, 1976, THE
COUNCIL GRANTED THE COMPLAINANT'S REQUEST, BUT CONTINUED THE STAY WITH
RESPECT TO THE REMAINDER OF THE ASSISTANT SECRETARY'S DECISION AND
ORDER. ON NOVEMBER 22, 1976, THE AGENCY NOTIFIED THE ASSISTANT
SECRETARY THAT IT WAS DIRECTING THE COMMANDING OFFICER OF THE ACTIVITY
TO REINSTATE RETROACTIVELY THE ARBITRATION AWARDS.
ON MAY 4, 1977, THE COUNCIL ISSUED ITS DECISION ON APPEAL IN FLRC NO.
76A-37, SUSTAINING IN PART AND SETTING ASIDE IN PART THE ASSISTANT
SECRETARY'S DECISION IN A/SLMR NO. 608, AND REMANDING THE CASE TO THE
ASSISTANT SECRETARY FOR APPROPRIATE ACTION CONSISTENT WITH ITS DECISION.
IN ITS DECISION, THE COUNCIL ENUNCIATED CERTAIN PRINCIPLES WHICH IT
DEEMED WERE APPLICABLE TO THE SUBJECT CASE. AMONG OTHER THINGS, THE
COUNCIL STATED THAT WHEN THE ASSISTANT SECRETARY FINDS ACTS OR PRACTICES
WHICH CONSTITUTE UNFAIR LABOR PRACTICES BY "AGENCY MANAGEMENT," AS
DEFINED IN SECTION 2(F) OF THE ORDER, THE ORDER PROVIDES NO BASIS FOR
DRAWING ARTIFICIAL DISTINCTIONS BETWEEN ORGANIZATIONAL LEVELS OF SUCH
AGENCY MANAGEMENT SO AS TO RELIEVE THEM OF THE RESPONSIBILITY FOR THEIR
ACTS WHICH WOULD OTHERWISE BE VIOLATIVE OF THE ORDER. THE COUNCIL FOUND
THAT NO DISTINCTION EXISTS BETWEEN ALLEGED VIOLATIONS OF 19(A)(6), ON
THE ONE HAND, AND ALLEGED VIOLATIONS OF THE REMAINDER OF 19(A) ON THE
OTHER HAND, WHEN THE ACTS AND CONDUCT ARE ATTRIBUTED TO AGENCY
MANAGEMENT AT A HIGHER ORGANIZATIONAL LEVEL WITHIN THE AGENCY THAN THE
LEVEL OF EXCLUSIVE RECOGNITION. THAT IS, WHEN ACTS AND CONDUCT
CONSTITUTE A REFUSAL TO CONFER, CONSULT, OR NEGOTIATE AS REQUIRED BY THE
ORDER, SUCH ACTS AND CONDUCT MAY PROPERLY BE FOUND VIOLATIVE OF SECTION
19(A)(6) REGARDLESS OF THE ORGANIZATIONAL LEVEL OF THE AGENCY MANAGEMENT
WHICH COMMITTED THE VIOLATIVE CONDUCT. FURTHER, THE COUNCIL CONCLUDED
THAT ALTHOUGH 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 ANY PART OF SECTION 19(A) OF THE ORDER BY AGENCY
MANAGEMENT, SUCH CONDUCT MAY NOT, STANDING ALONE, PROVIDE THE BASIS FOR
FINDING A SEPARATE VIOLATION OF THE ORDER BY "AGENCY MANAGEMENT" AT A
LOWER ORGANIZATIONAL LEVEL OF THE AGENCY WHERE THE UNIT OF EXCLUSIVE
RECOGNITION EXISTS.
IN THE INSTANT CASE, THE COUNCIL CONCLUDED THAT WHERE AGENCY
MANAGEMENT AT THE DEPARTMENTAL LEVEL DIRECTED THE TERMINATION OF
ENVIRONMENTAL DIFFERENTIAL PAY BY THE ACTIVITY, AND THE PAY WAS
TERMINATED AS A RESULT OF SUCH DIRECTION, THE CONDUCT OF THE AGENCY
COULD BE CONSIDERED VIOLATIVE OF SECTION 19(A)(6) OF THE ORDER, BUT A
SEPARATE FINDING OF VIOLATION WOULD NOT LIE AGAINST THE ACTIVITY BASED
SOLELY ON ITS MINISTERIAL ACTIONS IN IMPLEMENTING THE HIGHER AGENCY
DIRECTIONS, AS THE ACTIVITY HAD NO CHOICE BUT TO SO COMPLY.
BASED UPON THE DECISION ON APPEAL OF THE COUNCIL IN FLRC NO. 76A-37,
REMANDING THE CASE TO THE ASSISTANT SECRETARY FOR APPROPRIATE ACTION,
AND THE FINDINGS CONTAINED THEREIN, THE ORDER ISSUED IN A/SLMR NO. 608
IS MODIFIED CONSONANT THEREWITH.
REMEDY
HAVING FOUND THAT THE RESPONDENT AGENCY HAD ENGAGED IN CERTAIN
CONDUCT PROHIBITED IN SECTION 19(A)OF EXECUTIVE ORDER 11491, AS AMENDED,
I SHALL ORDER THAT THE RESPONDENT AGENCY CEASE AND DESIST THEREFROM AND
TAKE CERTAIN SPECIFIC AFFIRMATIVE ACTIONS, AS SET FORTH BELOW, DESIGNED
TO EFFECTUATE THE PURPOSES AND POLICIES OF THE ORDER.
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 OFFICE OF CIVILIAN
MANPOWER MANAGEMENT, DEPARTMENT OF THE NAVY, WASHINGTON, D.C. SHALL:
1. CEASE AND DESIST FROM:
(A) CHANGING TERMS AND CONDITIONS OF EMPLOYMENT AT THE NAVAL AIR
REWORK FACILITY, PENSACOLA, FLORIDA, BY DIRECTING THE NAVAL AIR REWORK
FACILITY, PENSACOLA, FLORIDA, TO DISCONTINUE PAYMENT OF ENVIRONMENTAL
DIFFERENTIAL PAY MADE PURSUANT TO THE ARBITRATION AWARDS OF OCTOBER 4,
1972, AND OCTOBER 25, 1972, RENDERED UNDER THE NEGOTIATED AGREEMENT
BETWEEN THE NAVAL AIR REWORK FACILITY, PENSACOLA, FLORIDA, AND THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1960.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES REPRESENTED BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1960, IN THE EXERCISE OF THEIR RIGHTS ASSURED
BY THE EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED. /1/
(A) POST AT ITS WASHINGTON, D.C. FACILITY, AND AT THE NAVAL AIR
REWORK FACILITY, PENSACOLA, FLORIDA, 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, OFFICE OF CIVILIAN MANPOWER MANAGEMENT,
DEPARTMENT OF THE NAVY, WASHINGTON, D.C., 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 OF THE OFFICE OF CIVILIAN MANPOWER MANAGEMENT, WASHINGTON,
D.C. AND THE NAVAL AIR REWORK FACILITY, PENSACOLA, FLORIDA, ARE
CUSTOMARILY POSTED. THE DIRECTOR, OFFICE OF CIVILIAN MANPOWER
MANAGEMENT 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.
IT IS FURTHER ORDERED THAT THOSE PORTIONS OF THE COMPLAINT IN CASE
NO. 42-2529(CA) ALLEGING VIOLATIONS OF SECTION 19(A)(1) AND (6) OF THE
ORDER BY THE NAVAL AIR REWORK FACILITY, PENSACOLA, FLORIDA, BE, AND THEY
HEREBY ARE, DISMISSED.
DATED, WASHINGTON, D.C.
AUGUST 4, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT
/1/ AS NOTED ABOVE, PURSUANT TO THE COMPTROLLER GENERAL'S RULING AND
THE VACATING OF THE COUNCIL'S STAY WITH RESPECT TO THE ASSISTANT
SECRETARY'S ORDER IN A/SLMR NO. 608 IN THIS REGARD, THE PAYMENT OF THE
ENVIRONMENTAL DIFFERENTIAL PAY IN QUESTION HAS BEEN REINSTATED
RETROACTIVELY. ACCORDINGLY, I FIND IT UNNECESSARY TO ISSUE SUCH AN
ORDER IN THE INSTANT PROCEEDING.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A SUPPLEMENTAL DECISION AND ORDER OF THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT
RELATIONS AND IN ORDER TO EFFECTUATE THE POLICIES OF
EXECUTIVE ORDER 11491, AS AMENDED LABOR-MANAGEMENT
RELATIONS IN THE FEDERAL SERVICE
WE HEREBY NOTIFY THE EMPLOYEES OF
THE NAVAL AIR REWORK FACILITY, PENSACOLA, FLORIDA, THAT:
WE WILL NOT CHANGE TERMS AND CONDITIONS OF EMPLOYMENT AT THE NAVAL
AIR REWORK FACILITY, PENSACOLA, FLORIDA, BY DIRECTING THE NAVAL AIR
REWORK FACILITY, PENSACOLA, FLORIDA, TO DISCONTINUE PAYMENT OF
ENVIRONMENTAL DIFFERENTIAL PAY MADE PURSUANT TO THE ARBITRATION AWARDS
OF OCTOBER 4, 1972, AND OCTOBER 25, 1972, RENDERED UNDER THE NEGOTIATED
AGREEMENT BETWEEN THE NAVAL AIR REWORK FACILITY, PENSACOLA, FLORIDA, AND
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1960.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES REPRESENTED BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1960, IN THE EXERCISE OF THEIR RIGHTS ASSURED
BY EXECUTIVE ORDER 11491, AS AMENDED.
WE HAVE CAUSED TO BE MADE WHOLE ALL EMPLOYEES OF THE NAVAL AIR REWORK
FACILITY, PENSACOLA, FLORIDA, WHO WERE IMPROPERLY DENIED ENVIRONMENTAL
DIFFERENTIAL PAY AWARDED PURSUANT TO THE ARBITRATION AWARDS OF OCTOBER
4, 1972, AND OCTOBER 25, 1972, RENDERED UNDER THE NEGOTIATED AGREEMENT
BETWEEN THE NAVAL AIR REWORK FACILITY, PENSACOLA, FLORIDA, AND THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1960.
(AGENCY)
DATED: . . . BY: . . .
DIRECTOR, OFFICE OF CIVILIAN MANPOWER
MANAGEMENT, DEPARTMENT OF THE NAVY,
WASHINGTON, D.C.
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
REGIONAL ADMINISTRATOR 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.
UNITED STATES
FEDERAL LABOR RELATIONS COUNCIL
WASHINGTON, D.C. 20415
NAVAL AIR REWORK FACILITY
PENSACOLA, FLORIDA
A/SLMR NO. 608
FLRC NO. 76A-37
AND
SECRETARY OF THE NAVY,
DEPARTMENT OF THE NAVY,
WASHINGTON, D.C.
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1960
DECISION ON APPEAL FROM
ASSISTANT SECRETARY DECISION
BACKGROUND OF CASE
THIS CASE AROSE WHEN THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1960 (THE UNION), FILED AN UNFAIR LABOR PRACTICE
COMPLAINT AGAINST THE DEPARTMENT OF THE NAVY (THE DEPARTMENT) AND THE
NAVAL AIR REWORK FACILITY, PENSACOLA, FLORIDA (THE ACTIVITY). THE
COMPLAINT ALLEGED THAT THE DEPARTMENT AND THE ACTIVITY HAD VIOLATED
SECTION 19(A)(1) AND (6) OF THE ORDER /1/ WHEN THE DEPARTMENT DIRECTED
THE ACTIVITY TO TERMINATE ENVIRONMENTAL DIFFERENTIAL PAY FOR CERTAIN
EMPLOYEES AT THE ACTIVITY AND THE ACTIVITY COMPLIED WITH THAT DIRECTION
AND TERMINATED SUCH PAY. (THE ENVIRONMENTAL DIFFERENTIAL PAY HAD BEEN
AWARDED THE EMPLOYEES IN ARBITRATION PROCEEDINGS PROCESSED UNDER THE
NEGOTIATED AGREEMENT BETWEEN THE UNION AND THE ACTIVITY.) THE ASSISTANT
SECRETARY FOUND THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) OF
THE ORDER BY ITS TERMINATION OF THE ENVIRONMENTAL DIFFERENTIAL PAY AND
THAT THE DEPARTMENT VIOLATED SECTION 19(A)(1) BY ORDERING THE ACTIVITY
TO DO SO. THE DEPARTMENT APPEALED THE ASSISTANT SECRETARY'S DECISION TO
THE COUNCIL. THE PERTINENT FACTUAL BACKGROUND OF THIS CASE, AS FOUND BY
THE ASSISTANT SECRETARY, IS AS FOLLOWS: THE ACTIVITY AND THE UNION HAD
BEEN PARTIES TO TWO NEGOTIATED AGREEMENTS CONTAINING CERTAIN PROVISIONS
AUTHORIZING ADDITIONAL PAY FOR EMPLOYEES ENGAGED IN HAZARDOUS OR "DIRTY"
WORK AT THE ACTIVITY'S FACILITY. PURSUANT TO THE PARTIES' AGREEMENT,
TWO ARBITRATORS ISSUED AWARDS DIRECTING THE ACTIVITY TO PAY
ENVIRONMENTAL DIFFERENTIAL PAY TO TWO CATEGORIES OF ITS EMPLOYEES. THE
ACTIVITY DID NOT FILE EXCEPTIONS TO THESE AWARDS WITH THE COUNCIL BUT,
AFTER ACCEPTING BOTH AWARDS BY LETTER, BEGAN PAYING THE DIFFERENTIALS TO
THE AFFECTED EMPLOYEES-- WHICH PAYMENT CONTINUED FOR OVER A YEAR.
DURING AN ENSUING REVIEW OF THE DEPARTMENT'S ADHERENCE TO, AND PROPER
ADMINISTRATION OF, APPLICABLE PAY LAWS, THE DEPARTMENT'S OFFICE OF
CIVILIAN MANPOWER MANAGEMENT (OCMM) QUESTIONED THE PROPERTY OF THESE
DIFFERENTIAL PAYMENTS MADE BY THE ACTIVITY PURSUANT TO THE TWO
ARBITRATION AWARDS. BECAUSE IT BELIEVED THAT THE PAYMENTS WERE IMPROPER
UNDER APPLICABLE LAWS AND THE FEDERAL PERSONNEL MANUAL (FPM), OCMM WROTE
TO THE CIVIL SERVICE COMMISSION (CSC) EXPRESSING ITS CONCERN; NOTING
(WITHOUT SPECIFYING) THAT THERE WERE ARBITRATION AWARDS WITH RESPECT TO
THESE MATTERS; AND SETTING FORTH ITS VIEWS AS TO WHY THE EMPLOYEES
SHOULD NOT BE CONSIDERED ELIGIBLE FOR DIFFERENTIAL PAY. IN RESPONSE TO
THE DEPARTMENT'S LETTER, THE CSC ADVISED OCMM THAT THE LATTER'S
INTERPRETATION OF THE FPM WITH RESPECT TO THE PROPRIETY OF SUCH
DIFFERENTIAL PAY WAS IN ACCORD WITH THE INTENT AND THE REQUIREMENTS AS
DELINEATED IN THE FPM SUPPLEMENT CONCERNING THE PAYMENT OF ENVIRONMENTAL
DIFFERENTIALS. /2/
THEREAFTER, THE OCMM DIRECTOR NOTIFIED THE ACTIVITY THAT OCMM COULD
NO LONGER CONDONE THE PAYMENT OF THESE DIFFERENTIALS FOR EMPLOYEES OF
THE ACTIVITY AND DIRECTED THE DISCONTINUANCE OF THE DIFFERENTIAL
PAYMENTS AS SOON AS POSSIBLE. ALTHOUGH THE ACTIVITY'S COMMANDING
OFFICER DISAGREED WITH THIS CONCLUSION, HE WAS INFORMED THAT HE HAD NO
LEEWAY IN THIS MATTER. SUBSEQUENTLY, HE PROVIDED THE UNION WITH A COPY
OF OCMM'S CORRESPONDENCE, REQUESTED THAT THE UNION STUDY AND EVALUATE
THE IMPACT OF THE ACTION ON UNIT EMPLOYEES, AND INVITED IT TO MEET AND
CONFER ON THE MATTER PRIOR TO THE ACTIVITY'S TAKING ANY ACTION.
APPROXIMATELY 2 WEEKS LATER, HAVING RECEIVED NO RESPONSE FROM THE UNION,
THE COMMANDING OFFICER OF THE ACTIVITY WROTE TO THE UNION'S LOCAL
PRESIDENT, CITING THE UNION'S FAILURE TO FORWARD THE MATTER TO ITS
NATIONAL OFFICE, AND INFORMING THE UNION OF THE ACTIVITY'S INTENT TO
COMPLY WITH OCMM'S INSTRUCTIONS BY TERMINATING THE ENVIRONMENTAL
DIFFERENTIALS IN QUESTION ABOUT 2 1/2 WEEKS LATER. THE UNION DID NOT
RESPOND TO THIS LETTER AND MADE NO REQUEST OR DEMAND TO MEET AND CONFER
CONCERNING THIS ACTION. THEREAFTER THE PAYMENT OF ENVIRONMENTAL
DIFFERENTIALS, PURSUANT TO THE TWO ARBITRATION AWARDS, WAS TERMINATED.
THE UNION THEN FILED THE COMPLAINT ALLEGING THAT THE DEPARTMENT AND THE
ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER. THE CASE WAS
HEARD BEFORE AN ADMINISTRATIVE LAW JUDGE (ALJ) WHO ISSUED A REPORT AND
RECOMMENDATIONS FINDING THAT THE ACTIVITY AND DEPARTMENT HAD ENGAGED IN
CERTAIN UNFAIR LABOR PRACTICE CONDUCT. THE DEPARTMENT FILED EXCEPTIONS
TO THESE FINDINGS. /3/
THE ASSISTANT SECRETARY FOUND, IN PERTINENT PART, THAT THE DEPARTMENT
VIOLATED SECTION 19(A)(1) OF THE ORDER BY DIRECTING THE ACTIVITY TO
TERMINATE THE ENVIRONMENTAL DIFFERENTIAL PAY. HE FOUND FURTHER THAT THE
ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) BY UNILATERALLY TERMINATING
SUCH PAYMENTS. /4/ AS A REMEDY, THE ASSISTANT SECRETARY ORDERED THAT
THE ACTIVITY AND DEPARTMENT CEASE AND DESIST FROM THE UNFAIR LABOR
PRACTICE CONDUCT, THAT THE ACTIVITY REIMBURSE TO EACH OF THE AFFECTED
EMPLOYEES ALL MONIES DEDUCTED OR WITHHELD FROM THEM BY REASON OF THE
TERMINATION OF THE ENVIRONMENTAL DIFFERENTIAL PAY, AND THAT THE USUAL
NOTICE BE POSTED AT THE ACTIVITY.
THE DEPARTMENT APPEALED THE ASSISTANT SECRETARY'S DECISION TO THE
COUNCIL, ALLEGING THAT THE DECISION PRESENTED MAJOR POLICY ISSUES. THE
COUNCIL ACCEPTED THE DEPARTMENT'S PETITION FOR REVIEW, CONCLUDING THAT
THE DECISION OF THE ASSISTANT SECRETARY RAISES CERTAIN MAJOR POLICY
ISSUES, NAMELY:
(1) 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
SUCH AGENCY MANAGEMENT AT THAT LEVEL OF THE AGENCY AND/OR BY OTHER
AGENCY MANAGEMENT AT A
LOWER ORGANIZATIONAL LEVEL OF THE AGENCY WHERE A UNIT OF EXCLUSIVE
RECOGNITION EXISTS; AND
(2) WHETHER IT IS CONSISTENT WITH THE PURPOSES OF THE ORDER FOR THE
ASSISTANT SECRETARY,
AFTER FINDING THAT AN UNFAIR LABOR PRACTICE WAS COMMITTED, TO FASHION
A REMEDIAL ORDER WHICH
INCLUDES AS PART OF A REMEDY A REQUIREMENT FOR THE PAYMENT OF MONIES
TO EMPLOYEES, WHEN THE
LEGALITY OF SUCH PAYMENT IS IN REASONABLE DOUBT.
THE COUNCIL ALSO GRANTED THE DEPARTMENT'S REQUEST FOR A STAY, HAVING
DETERMINED THAT THE REQUEST MET THE CRITERIA SET FORTH IN SECTION
2411.47(E)(2) OF ITS RULES (5 CRF 1411.47(E)(2)). THE UNION FILED A
BRIEF WITH THE COUNCIL AS PROVIDED IN SECTION 2411.16 OF THE COUNCIL'S
RULES (5 CFR 2411.16). THE DEPARTMENT DID NOT FILE A BRIEF.
SUBSEQUENT TO COUNCIL ACCEPTANCE, THE COMPTROLLER GENERAL RULED, IN
EFFECT, THAT THE ENVIRONMENTAL DIFFERENTIAL PAY INVOLVED HEREIN WAS
LEGAL AND MAY BE REINSTATED AND, FURTHER, THAT EMPLOYEES WHO LOST THE
ENVIRONMENTAL DIFFERENTIAL AFTER SUCH PAY WAS TERMINATED, WERE ENTITLED
TO BACKPAY FOR THE PERIOD OF TERMINATION (56 COMP.GEN. 8(1976)). THE
UNION THEN REQUESTED THAT THE COUNCIL VACATE THE STAY INSOFAR AS IT
RELATES TO THAT PART OF THE ASSISTANT SECRETARY'S REMEDIAL ORDER WHICH
PROVIDES FOR THE PAYMENT OF MONIES TO THE EMPLOYEES INVOLVED. THE
COUNCIL THEREAFTER GRANTED THE UNION'S REQUEST. WITH RESPECT TO THE
REMAINDER OF THE ASSISTANT SECRETARY'S DECISION AND ORDER, THE SUBJECT
STAY CONTINUED IN EFFECT.
OPINION
1. THE FIRST MAJOR POLICY ISSUE IS:
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
SUCH AGENCY MANAGEMENT AT THE LEVEL OF THE AGENCY AND/OR BY OTHER
AGENCY MANAGEMENT AT A LOWER
ORGANIZATIONAL LEVEL OF THE AGENCY WHERE A UNIT OF EXCLUSIVE
RECOGNITION EXISTS.
AS NOTED ABOVE, THE ASSISTANT SECRETARY FOUND THAT THE DEPARTMENT
VIOLATED SECTION 19(A)(1) OF THE ORDER BY DIRECTING THE ACTIVITY TO
TERMINATE THE ENVIRONMENTAL DIFFERENTIAL PAY, AND THAT THE ACTIVITY
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY UNILATERALLY
TERMINATING SUCH PAYMENTS. AS NOTED PREVIOUSLY, THE ASSISTANT SECRETARY
SUSTAINED THE DISMISSAL OF THE 19(A)(6) COMPLAINT AGAINST THE DEPARTMENT
BECAUSE, IN HIS VIEW, THE OBLIGATION TO MEET AND CONFER UNDER SECTION
11(A) OF 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 (SEE NOTE
4). FURTHER, THE ASSISTANT SECRETARY FOUND THAT THE ACTIVITY HAD
VIOLATED SECTION 19(A)(6) BY TERMINATING THE PAYMENTS, NOTWITHSTANDING
THE FACT THAT THE ACTIVITY DID SO UNDER DIRECTION BY HIGHER LEVEL
MANAGEMENT WITHIN THE DEPARTMENT AND DID SO ONLY AFTER THE ACTIVITY'S
COMMANDING OFFICER EXPRESSED DISAGREEMENT WITH THIS HIGHER LEVEL
DIRECTION. IN OUR VIEW, THESE FINDINGS AND CONCLUSIONS BY THE ASSISTANT
SECRETARY ARE INCONSISTENT WITH THE PURPOSES OF THE ORDER.
SECTION 19(A) OF THE ORDER PROVIDES A LIST OF SPECIFIED UNFAIR LABOR
PRACTICES IN WHICH "AGENCY MANAGEMENT" MAY NOT ENGAGE, INCLUDING
19(A)(6) WHICH PROHIBITS "AGENCY MANAGEMENT" FROM REFUSING TO CONSULT,
CONFER, OR NEGOTIATE WITH A LABOR ORGANIZATION AS REQUIRED BY THE ORDER.
THE PHRASE "AGENCY MANAGEMENT" IS SPECIFICALLY DEFINED IN SECTION 2(F)
OF THE ORDER:
"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 THE ORDER(.)
ACCORDINGLY, IT IS CLEAR THAT THE ACTS AND CONDUCT OF ANY INDIVIDUAL
FOUND TO BE AGENCY MANAGEMENT, AS DEFINED IN SECTION 2(F), MAY PROVIDE
THE BASIS FOR A SECTION 19(A) VIOLATION. OF COURSE, PURSUANT TO SECTION
6(A)(4) OF THE ORDER, IT IS THE RESPONSIBILITY OF THE ASSISTANT
SECRETARY TO DECIDE WHETHER SPECIFIC ACTS AND CONDUCT CONSTITUTE AN
UNFAIR LABOR PRACTICE. WHERE HE FINDS THAT AN ACT OR CONDUCT
CONSTITUTES AN UNFAIR LABOR PRACTICE AND THAT THE INDIVIDUALS WHO
COMMITTED THE ACT ARE AGENCY MANAGEMENT, THERE IS NO BASIS IN THE ORDER
TO DRAW ARTIFICIAL DISTINCTIONS BETWEEN ORGANIZATIONAL LEVELS OF SUCH
AGENCY MANAGEMENT SO AS TO RELIEVE THEM OF THE RESPONSIBILITY FOR THEIR
ACTS WHICH WOULD OTHERWISE BE VIOLATIVE OF THE ORDER.
WE TURN NOW TO THE QUESTION OF WHETHER A DIFFERENCE EXISTS BETWEEN
ALLEGED VIOLATIONS OF 19(A)(6), ON THE ONE HAND, AND ALLEGED VIOLATIONS
OF THE REMAINDER OF 19(A) ON THE OTHER, WHEN THE ACTS AND CONDUCT ARE
ATTRIBUTED TO AGENCY MANAGEMENT AT A HIGHER ORGANIZATIONAL LEVEL WITHIN
THE AGENCY THAN THE LEVEL OF EXCLUSIVE RECOGNITION. WE SEE NO
DISTINCTION. THAT IS, WHEN ACTS AND CONDUCT CONSTITUTE A REFUSAL TO
CONFER, CONSULT, OR NEGOTIATE AS REQUIRED BY THE ORDER, SUCH ACTS AND
CONDUCT MAY PROPERLY BE FOUND VIOLATIVE OF SECTION 19(A)(6) REGARDLESS
OF THE ORGANIZATIONAL LEVEL OF THE MEMBER OF AGENCY MANAGEMENT WHO
COMMITTED THE VIOLATIVE CONDUCT.
WHILE IT IS TRUE, AS THE ASSISTANT SECRETARY NOTED, THAT THE
OBLIGATION TO MEET AND CONFER UNDER SECTION 11(A) APPLIES ONLY IN THE
CONTEXT OF THE EXCLUSIVE BARGAINING RELATIONSHIP BETWEEN THE EXCLUSIVE
REPRESENTATIVE AND THE ACTIVITY OR AGENCY WHICH HAS ACCORDED EXCLUSIVE
RECOGNITION, CONTRARY TO THE ASSISTANT SECRETARY'S CONCLUSION, THIS DOES
NOT MEAN THAT THE ACTS AND CONDUCT OF AGENCY MANAGEMENT FROM A HIGHER
LEVEL MAY NOT PROVIDE THE BASIS OF A 19(A)(6) FINDING WHEN SUCH ACTS AND
CONDUCT CONSTITUTE A VIOLATION OF THAT SECTION. THE EXTENT OF THE
OBLIGATION TO NEGOTIATE COINCIDES WITH THE UNIT OF EXCLUSIVE
RECOGNITION. HOWEVER, AGENCY MANAGEMENT ABOVE THE LEVEL OF EXCLUSIVE
RECOGNITION MAY ENGAGE IN ACTS AND CONDUCT WHICH ARE VIOLATIVE OF THAT
OBLIGATION WHERE, FOR EXAMPLE, SUCH MANAGEMENT, AS HERE, INITIATED THE
UNLAWFUL CONDUCT INVOLVED. IN OTHER WORDS, WHEN THE OBLIGATION TO
NEGOTIATE IS BREACHED BY THE ACTS AND CONDUCT OF AGENCY MANAGEMENT, SUCH
A BREACH MAY PROPERLY PROVIDE THE BASIS FOR A 19(A)(6) FINDING
REGARDLESS OF THE LOCATION OF THAT AGENCY MANAGEMENT IN THE AGENCY CHAIN
OF COMMAND. /5/
HENCE, IN THE FACTS OF THE INSTANT CASE WHERE AGENCY MANAGEMENT AT
THE DEPARTMENTAL LEVEL DIRECTED THE TERMINATION OF THE ENVIRONMENTAL
DIFFERENTIAL PAY AND SUCH PAY WAS TERMINATED AS A RESULT OF SUCH
DIRECTION, SUCH ACTS AND CONDUCT COULD BE FOUND TO BE A VIOLATION OF
SECTION 19(A)(6) OF THE ORDER. FURTHER, WHERE, AS FOUND BY THE
ASSISTANT SECRETARY IN THE FACTS OF THIS CASE, AGENCY MANAGEMENT AT THE
ACTIVITY LEVEL COMPLIED WITH SUCH DIRECTION FROM AGENCY MANAGEMENT AT A
HIGHER LEVEL BECAUSE THE ACTIVITY HAD NO CHOICE BUT TO DO SO, A SEPARATE
FINDING OF A VIOLATION WOULD NOT LIE AGAINST THE ACTIVITY AS SUCH,
SOLELY ON THE BASIS OF ITS MINISTERIAL ACTIONS IN IMPLEMENTING THE
DIRECTION FROM HIGHER AGENCY AUTHORITY.
ACCORDINGLY, WITH REFERENCE TO THE FIRST MAJOR POLICY ISSUE, WE
CONCLUDE THAT 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 ANY PART OF SECTION 19(A) OF THE ORDER BY "AGENCY
MANAGEMENT," BUT MAY NOT, STANDING ALONE, PROVIDE THE BASIS FOR FINDING
A SEPARATE VIOLATION BY "AGENCY MANAGEMENT" AT A LOWER ORGANIZATIONAL
LEVEL OF THE AGENCY WHERE A UNIT OF EXCLUSIVE RECOGNITION EXISTS.
APPLYING THE FOREGOING PRINCIPLES TO THE FACTS AND CIRCUMSTANCES OF
THIS CASE, WE CONCLUDE THAT "AGENCY MANAGEMENT" VIOLATED SECTIONS
19(A)(6) AND 19(A)(1) OF THE ORDER. THIS CONCLUSION IS PREDICATED
SOLELY UPON THE ACTIONS OF THE DEPARTMENT IN INITIATING THE CONDUCT
WHICH THE ASSISTANT SECRETARY FOUND VIOLATIVE OF THESE SECTIONS OF THE
ORDER, RATHER THAN UPON THE MINISTERIAL CONDUCT OF THE ACTIVITY IN THE
CIRCUMSTANCES OF THIS CASE.
2. THE SECOND MAJOR POLICY ISSUE IS:
WHETHER IT IS CONSISTENT WITH THE PURPOSES OF THE ORDER FOR THE
ASSISTANT SECRETARY, AFTER
FINDING THAT AN UNFAIR LABOR PRACTICE WAS COMMITTED, TO FASHION A
REMEDIAL ORDER WHICH
INCLUDES AS PART OF A REMEDY A REQUIREMENT FOR THE PAYMENT OF MONIES
TO EMPLOYEES, WHEN THE
LEGALITY OF SUCH PAYMENT IS IN REASONABLE DOUBT.
THE ASSISTANT SECRETARY'S AUTHORITY TO PRESCRIBE REMEDIAL ORDERS IS
SET FORTH IN SECTION 6(B) OF THE ORDER:
SEC. 6. ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS.
. . . .
(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.
AS THE COUNCIL HAS PREVIOUSLY STATE, SECTION 6(B) CONFERS
CONSIDERABLE DISCRETION ON THE ASSISTANT SECRETARY TO FASHION SUCH
REMEDIAL ACTION AS HE CONSIDERS APPROPRIATE TO EFFECTUATE THE POLICIES
OF THE ORDER. /6/ HOWEVER, SUCH DISCRETION IS NOT WITHOUT LIMITATION.
FOR EXAMPLE, AS THE COUNCIL STATED IN DEPARTMENT OF THE ARMY, ABERDEEN
PROVING GROUND, A/SLMR NO. 412, FLRC NO. 74A-46 (MAR. 20, 1975), REPORT
NO. 67, AT 7 OF ITS DECISION:
(T)HE 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 TO REQUIRE A
PARTY TO VIOLATE
APPLICABLE LAW, APPROPRIATE REGULATION OR THE ORDER. (FOOTNOTE
OMITTED.)
WHEN A REMEDY INVOLVES THE POSSIBLE PAYMENT OF MONIES BY AN AGENCY,
THE ASSISTANT SECRETARY, CONSISTENT WITH HIS RESPONSIBILITIES UNDER THE
ORDER, MUST BE REASONABLY ASSURED THAT SUCH PAYMENT IS PROPER PURSUANT
TO LAW AND DECISIONS OF THE COMPTROLLER GENERAL. IN MOST SITUATIONS,
ESTABLISHED PRECEDENT WILL PROVIDE THE ASSISTANT SECRETARY WITH
REASONABLE ASSURANCE AS TO THE PROPRIETY OF A MONETARY REMEDY AND THE
ASSISTANT SECRETARY CAN ISSUE SUCH A REMEDY WITHOUT PRIOR AUTHORIZATION.
/7/ WHERE THE ASSISTANT SECRETARY LACKS REASONABLE ASSURANCE AS TO THE
PROPRIETY OF A MONETARY PAYMENT REMEDY, HE SHOULD, AS THE COUNCIL DOES,
/8/ OBTAIN AN ADVANCE DECISION FROM THE COMPTROLLER GENERAL AS TO THE
LEGALITY OF SUCH A PAYMENT. /9/ IN THIS WAY, THE ASSISTANT SECRETARY
CAN ELIMINATE THE POSSIBILITY OF ORDERING A PARTY TO VIOLATE LAW OR
DECISION OF THE COMPTROLLER GENERAL.
IN THIS LATTER REGARD, IF THE LEGALITY OF A MONETARY PAYMENT HAS
ALREADY BEEN REFERRED TO THE COMPTROLLER GENERAL, THE ASSISTANT
SECRETARY MUST AWAIT THE COMPTROLLER GENERAL'S RULING AS TO THE LEGALITY
OF SUCH PAYMENT BEFORE REQUIRING A PARTY TO MAKE THE PAYMENT. HE MAY DO
THIS EITHER BY AWAITING THE RULING OF THE COMPTROLLER GENERAL BEFORE
FASHIONING A REMEDIAL ORDER DIRECTING SUCH PAYMENT, OR BY MAKING SUCH
REQUIREMENT IN A REMEDIAL ORDER CONTINGENT UPON THE COMPTROLLER
GENERAL'S SUBSEQUENT RULING. /10/ OF COURSE, SHOULD THE COMPTROLLER
GENERAL RULE THAT THE PAYMENT OF MONIES AT ISSUE IS NOT PROPER, THE
ASSISTANT SECRETARY MAY NOT REQUIRE SUCH PAYMENT. /11/
IN OUR VIEW, THE FOREGOING APPROACH IS CONSISTENT WITH THE PURPOSES
OF THE ORDER, PROPERLY ACKNOWLEDGES THE RESPECTIVE JURISDICTIONS OF THE
GENERAL ACCOUNTING OFFICE AND THE ASSISTANT SECRETARY IN SUCH
CIRCUMSTANCES, AND AVOIDS THE ENFORCEMENT DIFFICULTIES WHICH WOULD
OTHERWISE ARISE IF THE ASSISTANT SECRETARY'S REMEDIAL ORDER REQUIRING
THE PAYMENT OF MONIES WERE TO BECOME EFFECTIVE PRIOR TO THE COMPTROLLER
GENERAL'S RESOLUTION OF THE REASONABLE DOUBT CONCERNING THE LEGALITY OF
SUCH PAYMENTS.
IN THE INSTANT CASE, WHILE THE DEPARTMENT HAD REQUESTED IN DECISION
FROM THE COMPTROLLER GENERAL AS TO THE LEGALITY OF THE PAYMENT OF MONIES
PRIOR TO THE ASSISTANT SECRETARY'S ISSUANCE OF HIS DECISION AND ORDER,
IT IS UNCLEAR FROM THE RECORD WHETHER THE DEPARTMENT APPRISED THE
ASSISTANT SECRETARY THAT IT HAD, IN FACT, REQUESTED A RULING FROM THE
COMPTROLLER GENERAL. /12/ IN ANY EVENT, SUBSEQUENT TO THE ISSUANCE OF
THE ASSISTANT SECRETARY'S DECISION, THE COMPTROLLER GENERAL RULED THAT
THE PAYMENT OF MONIES DIRECTED BY THE ASSISTANT SECRETARY'S REMEDIAL
ORDER WAS LEGAL. ACCORDINGLY, AS THERE NO LONGER EXISTS A DISPUTE
CONCERNING THE LEGALITY OF THE PAYMENT OF MONIES IN THIS CASE, THE
ASSISTANT SECRETARY'S REMEDIAL ORDER IN THIS REGARD IS HEREBY SUSTAINED.
/13/ HOWEVER, IN ALL FUTURE CASES WHEREIN THE ASSISTANT SECRETARY,
AFTER FINDING THAT AN UNFAIR LABOR PRACTICE WAS COMMITTED, FASHIONS A
REMEDIAL ORDER WHICH INCLUDES AS PART OF A REMEDY A REQUIREMENT FOR THE
PAYMENT OF MONIES TO EMPLOYEES, HE MUST DO SO IN A MANNER CONSISTENT
WITH THE PURPOSES OF THE ORDER AS SET FORTH ABOVE.
CONCLUSION
IN SUMMARY, WITH REGARD TO THE MAJOR POLICY ISSUES PRESENTED HEREIN,
WE CONCLUDE THAT:
(1) 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
ANY PART OF SECTION 19(A) OF THE ORDER BY "AGENCY MANAGEMENT," BUT MAY
NOT, STANDING ALONE, PROVIDE THE BASIS FOR FINDING A SEPARATE VIOLATION
BY "AGENCY MANAGEMENT" AT A LOWER ORGANIZATIONAL LEVEL OF THE AGENCY
WHERE A UNIT OF EXCLUSIVE RECOGNITION EXISTS.
APPLYING THE FOREGOING PRINCIPLES TO THE FACTS AND CIRCUMSTANCES OF
THIS CASE, WE CONCLUDE THAT "AGENCY MANAGEMENT" VIOLATE SECTIONS
19(A)(6) AND 19(A)(1) OF THE ORDER. THIS CONCLUSION IS PREDICATED
SOLELY UPON THE ACTIONS OF THE DEPARTMENT IN INITIATING THE CONDUCT
WHICH THE ASSISTANT SECRETARY FOUND VIOLATIVE OF THESE SECTIONS OF THE
ORDER, RATHER THAN UPON THE MINISTERIAL CONDUCT OF THE ACTIVITY IN THE
CIRCUMSTANCES OF THIS CASE.
(2) IT IS INCONSISTENT WITH THE PURPOSES OF THE ORDER FOR THE
ASSISTANT SECRETARY, AFTER FINDING THAT AN UNFAIR LABOR PRACTICE WAS
COMMITTED, TO FASHION A REMEDIAL ORDER WHICH INCLUDES AS PART OF A
REMEDY A REQUIREMENT FOR THE PAYMENT OF MONIES TO EMPLOYEES, WHEN THE
LEGALITY OF SUCH PAYMENT IS IN REASONABLE DOUBT. RATHER, SUCH A
REMEDIAL ORDER EITHER MUST AWAIT OR BE MADE CONTINGENT UPON THE
COMPTROLLER GENERAL'S RULING AS TO THE LEGALITY OF THE PAYMENT. IN THE
INSTANT CASE, AS THE COMPTROLLER GENERAL HAS UPHELD THE LEGALITY OF THE
PAYMENTS DIRECTED BY THE ASSISTANT SECRETARY, THE REMEDIAL ORDER IN THIS
REGARD IS THEREFORE SUSTAINED.
ACCORDINGLY, PURSUANT TO SECTION 2411.18(B) OF THE COUNCIL'S RULES OF
PROCEDURE, WE SUSTAIN IN PART AND SET ASIDE IN PART THE ASSISTANT
SECRETARY'S DECISION AND ORDER AND REMAND THE CASE TO HIM FOR
APPROPRIATE ACTION CONSISTENT WITH OUR DECISION HEREIN.
BY THE COUNCIL.
HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
ISSUED: MAY 4, 1977
/1/ SECTION 19(A) OF THE ORDER PROVIDES IN PERTINENT PART:
SEC. 19. UNFAIR LABOR PRACTICES. (A) AGENCY MANAGEMENT SHALL NOT--
(1) INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE
OF THE RIGHTS ASSURED BY THIS ORDER:
. . . .
(6) REFUSE TO CONSULT, CONFER, OR NEGOTIATE WITH A LABOR ORGANIZATION
AS REQUIRED BY THIS ORDER.
/2/ WITH RESPECT TO THE CSC ADVICE TO OCMM, IN REACHING HIS DECISION
IN THE INSTANT CASE THE ASSISTANT SECRETARY CONCLUDED THAT THE
DEPARTMENT'S LETTER CONSTITUTED MERELY A REQUEST FOR CLARIFYING
INFORMATION REGARDING THE CSC'S INTERPRETATION OF THE FPM PROVISIONS
CONCERNING ENVIRONMENTAL DIFFERENTIALS. HE FURTHER CONCLUDED THAT THE
CSC RESPONSE DID NOT, AND WAS NOT INTENDED TO, REFLECT A CSC POLICY
INTERPRETATION THAT ANY PARTICULAR ARBITRATION AWARD, BASED ON THE
PERTINENT FACTS DEVELOPED DURING A SPECIFIC ARBITRATION PROCEEDING, WAS
INVALID UNDER THE PERTINENT PROVISIONS OF THE FPM. IN THIS REGARD, THE
ASSISTANT SECRETARY QUOTED FROM A SUBSEQUENT LETTER FROM CSC TO THE
UNION SETTING OUT THE FPM PROCEDURES ON ENVIRONMENTAL DIFFERENTIALS AND
CONCLUDING, "WE HAVE MADE NO DETERMINATIONS REGARDING A SPECIFIC CASE
NOR DO WE CONTEMPLATE DOING SO."
/3/ IN A FOOTNOTE IN ITS BRIEF BEFORE THE ASSISTANT SECRETARY, THE
DEPARTMENT NOTED THAT IT WAS CONSIDERING, AND HAD TAKEN THE PRELIMINARY
STEPS TO EFFECTUATE, AN APPEAL TO THE COMPTROLLER GENERAL WITH RESPECT
TO THE PAY QUESTIONS RAISED BY THE ARBITRATION AWARDS INVOLVED IN THE
PROCEEDINGS.
/4/ THE UNION'S SECTION 19(A)(6) COMPLAINT AGAINST THE DEPARTMENT WAS
DISMISSED BY THE ASSISTANT REGIONAL DIRECTOR, AND SUCH DISMISSAL WAS
SUSTAINED BY THE ASSISTANT SECRETARY, WHO FOUND THAT:
(T)HE OBLIGATION TO MEET AND CONFER UNDER SECTION 11(A) OF 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. IN THIS
REGARD, . . . THE
(A)CTIVITY HEREIN AND NOT THE (DEPARTMENT) ACCORDED RECOGNITION TO
THE EXCLUSIVE
REPRESENTATIVE AND IS A PARTY TO THE NEGOTIATED AGREEMENT THAT WAS IN
EFFECT AT ALL TIMES
MATERIAL HEREIN.
/5/ SEE UNITED STATES DEPARTMENT OF AGRICULTURE AND AGRICULTURAL
RESEARCH SERVICE, A/SLMR NO. 519, FLRC NO. 751-65 (DEC. 24, 1975),
REPORT NO. 94.
/6/ SEE U.S. ARMY CORPS OF ENGINEERS, PHILADELPHIA DISTRICT, A/SLMR
NO. 673, FLRC NO. 76A-94 (FEB. 25, 1977), REPORT NO. 122, AND CASES
CITED THEREIN.
/7/ IN THIS REGARD, SUCH DECISION AND REMEDY ARE SUBJECT TO APPEAL TO
THE COUNCIL, CONSISTENT WITH ITS REQUIREMENTS FOR REVIEW AS SET FORTH IN
SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE. HEADQUARTERS,
UNITED STATES ARMY AVIATION SYSTEMS COMMAND, A/SLMR NO. 168, 1 FLRC 472
(FLRC NO. 72A-30 (JULY 25, 1973), REPORT NO. 42).
/8/ SEE, E.G., PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION AND
FEDERAL AVIATION ADMINISTRATION, EASTERN REGION (WOLF, ARBITRATOR), FLRC
NO. 76A-10 (JAN. 18, 1977), REPORT NO. 121; DEPARTMENT OF
TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, MONTGOMERY
RAPCON/TOWER, MONTGOMERY, ALABAME AND PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION (AMIS, ARBITRATOR), FLRC NO. 75A-32 (DEC. 20,
1976), REPORT NO. 119; AND NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY
AND LOCAL LODGE NO. 830, INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS (THOMSON, ARBITRATOR), FLRC NO. 75A-91 (JUNE 14,
1976), REPORT NO. 106.
/9/ THE ASSISTANT SECRETARY HAS PREVIOUSLY SOUGHT ADVANCE DECISIONS
FROM THE COMPTROLLER GENERAL WITH RESPECT TO SUCH PAYMENT QUESTIONS.
FOR EXAMPLE, THE ASSISTANT SECRETARY REQUESTED A DECISION FROM THE
COMPTROLLER GENERAL AS TO WHETHER HE HAS THE AUTHORITY TO EMPLOY
MAKE-WHOLE REMEDIES UNDER THE BACK PAY ACT (5 U.S.C. 5596(1970)) OR ANY
OTHER RELEVANT STATUTE WHEN HE FINDS VIOLATIONS OF THE ORDER INVOLVING
THE DISCRIMINATORY FAILURE TO PROMOTE, TO HIRE AND/OR TO PAY OVERTIME.
IN RESPONSE, THE COMPTROLLER GENERAL RULED THAT THE ASSISTANT SECRETARY
DOES HAVE SUCH AUTHORITY. 54 COMP.GEN. 760(1975), AT 762.
/10/ IN AFFIRMING THE AUTHORITY OF THE ASSISTANT SECRETARY TO EMPLOY
MAKE-WHOLE REMEDIES, THE COMPTROLLER GENERAL HAS STATED:
WE ALSO POINT OUT THAT ALTHOUGH THE A/SLMR MAY ORDER AN AGENCY HEAD
TO TAKE REMEDIAL ACTION
WITH RESPECT TO AN EMPLOYEE, INCLUDING THE PAYMENT OF BACKPAY,
ALLOWANCES AND DIFFERENTIALS
AND OTHER SUBSTANTIAL EMPLOYMENT BENEFITS, HIS ORDER DOES NOT
PRECLUDE THE AGENCY HEAD OR THE
AUTHORIZED CERTIFYING OFFICER OF THE AGENCY FROM EXERCISING THEIR
STATUTORY RIGHTS UNDER
PROVISIONS OF 31 U.S.C. 74 AND 31 U.S.C. 82D IN REQUESTING AN ADVANCE
DECISION FROM THIS
OFFICE AS TO THE PROPRIETY OF SUCH PAYMENTS. ACCORDINGLY, AN AGENCY
MAY PROPERLY DELAY THE
IMPLEMENTATION OF AN ORDER ISSUED BY THE A/SLMR INVOLVING THE
EXPENDITURE OF FUNDS UNTIL IT
HAS OBTAINED AN ADVANCE DECISION FROM THIS OFFICE. (54 COMP.GEN.
760(1975), AT 764.)
/11/ IN SUCH SITUATIONS, THE ASSISTANT SECRETARY MAY, PURSUANT TO HIS
SECTION 6(B) AUTHORITY, FASHION ALTERNATIVE REMEDIES-- CONSISTENT WITH
APPLICABLE LAW, APPROPRIATE REGULATION AND THE ORDER-- AS HE DEEMS
APPROPRIATE.
/12/ AS PREVIOUSLY INDICATED, SUPRA NOTE 3, IN A FOOTNOTE IN ITS
BRIEF BEFORE THE ASSISTANT SECRETARY, THE DEPARTMENT STATED ONLY THAT IT
"IS CONSIDERING, AND HAS TAKEN THE PRELIMINARY STEPS REQUIRED BY THE
DEPARTMENT OF DEFENSE TO EFFECTUATE, AN APPEAL TO THE COMPTROLLER
GENERAL" WITH RESPECT TO THE PAY QUESTION.
/13/ THE COMPTROLLER GENERAL'S RULING, FOLLOWING THE ASSISTANT
SECRETARY'S ISSUANCE OF HIS REMEDIAL ORDER HEREIN, THAT BOTH ARBITRATION
AWARDS ARE LEGAL AND MAY BE REINSTATED, AND THAT EMPLOYEES WHO LOST THE
ENVIRONMENTAL DIFFERENTIAL AFTER THE AWARDS WERE TERMINATED ARE ENTITLED
TO BACKPAY AS ORDERED BY THE ASSISTANT SECRETARY, DOES NOT RESOLVE THE
MAJOR POLICY ISSUE AS TO THE NATURE OF THE ASSISTANT SECRETARY'S
RESPONSIBILITIES IN FASHIONING REMEDIAL ORDERS WHICH ARE CONSISTENT WITH
THE PURPOSES OF THE ORDER IN CIRCUMSTANCES SUCH AS THOSE IN THE INSTANT
CASE. ACCORDINGLY, THE FOREGOING RULING BY THE COMPTROLLER GENERAL DOES
NOT RENDER THIS MAJOR POLICY ISSUE MOOT, AND THE UNION'S MOTION TO
DISMISS THE ISSUE ON THAT BASIS (DATED FEB. 9, 1977) IS THEREFORE
DENIED.
7 A/SLMR 872; P. 614; CASE NO. 30-7202(RO); JULY 28, 1977.
JULY 28, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
VETERANS ADMINISTRATION
HOSPITAL, MONTROSE, N.Y.
A/SLMR NO. 872
THIS CASE AROSE AS THE RESULT OF A PETITION FILED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2440, AFL-CIO (AFGE) SEEKING
AN ELECTION IN A UNIT OF ALL HOSPITAL POLICE OFFICERS OF THE ACTIVITY.
THE AFGE CONTENDED THAT BY VIRTUE OF THE ASSISTANT SECRETARY'S DECISION
IN VETERANS ADMINISTRATION HOSPITAL, MONTROSE, NEW YORK, A/SLMR NO. 484,
IN WHICH A UNIT OF NON-GUARD EMPLOYEES WAS "SEVERED" FROM A MIXED UNIT
OF GUARD AND NON-GUARD EMPLOYEES, THE HOSPITAL POLICE OFFICERS
(OFFICERS) ARE CURRENTLY UNREPRESENTED. THE INTERVENOR, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1119 (NFFE) CONTENDED THAT, AS A
RESULT OF ITS VICTORY IN THE ELECTION DIRECTED BY THE ASSISTANT
SECRETARY IN A/SLMR NO. 484, THE OFFICERS CONTINUED TO BE PART OF THE
MIXED UNIT, AND THAT THE AFGE'S PETITION WHICH SEEKS TO SEVER THE
OFFICERS FROM THE MIXED UNIT SHOULD BE DISMISSED BASED ON THE CRITERIA
ESTABLISHED IN UNITED STATES NAVAL CONSTRUCTION BATTALION CENTER, A/SLMR
NO. 8. THE ACTIVITY CONTENDED THAT THE OFFICERS DO NOT SHARE A
COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM OTHER GENERAL SCHEDULE
EMPLOYEES IN THE ACTIVITY, AND THAT SUCH A UNIT WOULD NOT PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. IT ALSO
CONTENDED THAT THE OFFICERS HAVE BEEN, AND CONTINUE TO BE, EFFECTIVELY
REPRESENTED BY THE NFFE.
UNDER ALL THE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT
SUBSEQUENT TO THE ELECTION CONDUCTED PURSUANT TO THE DECISION AND
DIRECTION OF ELECTION IN A/SLMR NO. 484, THE OFFICERS CONTINUED TO BE
REPRESENTED BY THE NFFE AS PART OF THE EXISTING MIXED UNIT OF EMPLOYEES.
IN THIS REGARD, THE ASSISTANT SECRETARY NOTED THAT THE OFFICERS WERE
EXCLUDED FROM THE UNIT FOUND APPROPRIATE IN THAT CASE ONLY BY REASON OF
THE THEN PROHIBITION IN THE ORDER PRECLUDING THE ESTABLISHMENT OF MIXED
UNITS CONTAINING GUARD AND NON-GUARD EMPLOYEES. HE FURTHER NOTED THAT
SUCH PROHIBITION DID NOT AFFECT EXISTING MIXED UNITS AND THAT, STANDING
ALONE, THE FILING OF A PETITION, OR THE DETERMINATION BY THE ASSISTANT
SECRETARY THAT A SEGMENT OF AN EXISTING UNIT IS APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER, DO NOT CONSTITUTE
EVENTS WHICH WOULD TERMINATE AN EXISTING MIXED UNIT. UNDER THESE
CIRCUMSTANCES, IN VIEW OF THE MAJORITY VOTE OF EMPLOYEES IN FAVOR OF THE
NFFE, WHICH, IN THE ASSISTANT SECRETARY'S JUDGMENT, CONSTITUTED AN
INDICATION OF THE DESIRE OF THE EMPLOYEES TO REMAIN IN THE EXISTING
MIXED UNIT, HE FOUND THAT THE EXISTING MIXED UNIT CONTINUED IN EXISTENCE
AS CONSTITUTED.
HAVING FOUND THAT THE OFFICERS CONTINUED TO BE PART OF THE EXISTING
MIXED UNIT, THE ASSISTANT SECRETARY FOUND THAT THE AFGE'S PETITION WAS,
IN EFFECT, AN ATTEMPT TO SEVER A PORTION OF AN EXISTING UNIT. IN THESE
CIRCUMSTANCES, HE FOUND THAT THE PETITIONED FOR UNIT WAS NOT APPROPRIATE
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION AS THERE WAS NO EVIDENCE THAT
NFFE HAD FAILED OR IMPROPERLY REFUSED TO REPRESENT ANY EMPLOYEE IN THE
EXISTING BARGAINING UNIT AND THERE HAS BEEN A HARMONIOUS AND EFFECTIVE
BARGAINING RELATIONSHIP BETWEEN THE ACTIVITY AND NFFE SINCE 1965.
ACCORDINGLY, IN THE ABSENCE OF EVIDENCE OF UNUSUAL CIRCUMSTANCES, THE
ASSISTANT SECRETARY DISMISSED THE PETITION.
VETERANS ADMINISTRATION HOSPITAL,
MONTROSE, N.Y.
ACTIVITY
CASE NO. 30-7202(RO)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2440, AFL-CIO
PETITIONER
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1119
INTERVENOR
DECISION AND ORDER
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER RAYMOND A. WREN.
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 ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 2440, AFL-CIO, HEREIN CALLED THE AFGE, SEEKS AN ELECTION IN A UNIT
OF ALL HOSPITAL POLICE OFFICERS OF THE ACTIVITY, EXCLUDING ALL OTHER
GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES, MANAGEMENT OFFICIALS,
SUPERVISORS, AND EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER
THAN A PURELY CLERICAL CAPACITY. /1/ IN SUPPORT OF ITS PETITION, THE
AFGE ARGUES THAT, BY VIRTUE OF THE ASSISTANT SECRETARY'S DECISION IN
VETERANS ADMINISTRATION HOSPITAL, MONTROSE, NEW YORK, A/SLMR NO. 484, IN
WHICH A UNIT OF NON-GUARD EMPLOYEES WAS "SEVERED" FROM A MIXED UNIT OF
GUARD AND NON-GUARD EMPLOYEES, THE CLAIMED HOSPITAL POLICE OFFICERS
(OFFICERS) ARE, AT PRESENT, UNREPRESENTED. AS AN ALTERNATIVE ARGUMENT,
THE AFGE CONTENDS THAT, EVEN IF THE OFFICERS ARE CONSIDERED TO BE PART
OF A MIXED UNIT, THEY CONSTITUTE A SEPARATE, APPROPRIATE UNIT WHICH CAN
BE SEVERED FROM THE MIXED UNIT.
THE INTERVENOR, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1119,
HEREIN CALLED THE NFFE, CONTENDS THAT THE OFFICERS WERE SEVERED FROM THE
MIXED UNIT IN A/SLMR NO. 484, SOLELY FOR THE PURPOSE OF CONDUCTING AN
ELECTION, AND THE RESULTS OF THE ELECTION, WHICH DEMONSTRATED REJECTION
OF THE AFGE AND SUPPORT FOR THE NFFE, SHOULD BE VIEWED AS HAVING
INDICATED THE EMPLOYEES' DESIRE TO REMAIN IN THE EXISTING MIXED UNIT
REPRESENTED BY THE NFFE. THE NFFE FURTHER CONTENDS THAT AS THE OFFICERS
ARE STILL PART OF THE EXISTING UNIT, THE AFGE'S PETITION SHOULD BE
DISMISSED BASED ON THE CRITERIA SET FORTH IN UNITED STATES NAVAL
CONSTRUCTION BATTALION CENTER, A/SLMR NO. 8.
THE ACTIVITY TAKES THE POSITION THAT THE CLAIMED EMPLOYEES DO NOT
SHARE A COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM THE OTHER
GENERAL SCHEDULE EMPLOYEES OF THE ACTIVITY AND THAT SUCH UNIT WOULD NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. THE
ACTIVITY ALSO ASSERTS THAT THE RECORD HEREIN ESTABLISHES THAT THE
OFFICERS HAVE BEEN, AND CURRENTLY ARE, EFFECTIVELY REPRESENTED BY THE
NFFE. /2/
THE RECORD REVEALS THAT THE ACTIVITY IS A GENERAL MEDICAL AND
SURGICAL HOSPITAL AND A DOMICILIARY. THE OFFICERS, THE EMPLOYEES SOUGHT
HEREIN, ARE ATTACHED TO THE POLICE SECTION OF THE ENGINEERING SERVICE OF
THE ACTIVITY. THE POLICE SECTION CONSISTS OF A SUPERVISORY POLICE
OFFICER CHIEF, AND APPROXIMATELY 12 POLICE OFFICERS. THE OFFICERS ARE
RESPONSIBLE FOR THE PROTECTION OF PROPERTY AND PERSONNEL OF THE
ACTIVITY, INCLUDING INVESTIGATIONS CONCERNING THEFTS AND OTHER CRIMES,
DAMAGE, AND INJURIES, AS WELL AS CONTROLLING AUTO TRAFFIC ON THE
ACTIVITY'S GROUNDS. THE OFFICERS ARE GENERAL SCHEDULE EMPLOYEES AND ARE
SUBJECT TO THE SAME PERSONNEL PRACTICES AND POLICIES AND WORKING
CONDITIONS AS ALL GENERAL SCHEDULE EMPLOYEES OF THE ACTIVITY. THEY ALSO
ARE INCLUDED IN THE SAME AREAS OF CONSIDERATION FOR MERIT PROMOTIONS AND
REDUCTIONS-IN-FORCE AS OTHER GENERAL SCHEDULE EMPLOYEES OF THE ACTIVITY.
ON SEPTEMBER 29, 1965, THE NFFE WAS GRANTED EXCLUSIVE RECOGNITION FOR
A UNIT OF ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE
ACTIVITY, INCLUDING POLICE OFFICERS. ON SEPTEMBER 12, 1972, THE NFFE
AND THE ACTIVITY EXECUTED A NEGOTIATED AGREEMENT, EFFECTIVE FOR A PERIOD
OF TWO YEARS AND AUTOMATICALLY RENEWABLE FOR ADDITIONAL TWO YEAR TERMS.
/3/ PURSUANT TO A PETITION FILED BY THE AFGE ON FEBRUARY 4, 1975, THE
ASSISTANT SECRETARY ISSUED A DECISION AND DIRECTION OF ELECTION IN
VETERANS ADMINISTRATION HOSPITAL, MONTROSE, NEW YORK, A/SLMR NO. 484, IN
WHICH HE DIRECTED AN ELECTION IN A UNIT OF ALL PROFESSIONAL AND
NONPROFESSIONAL GENERAL SCHEDULE EMPLOYEES, EXCLUDING GUARDS. /4/ THE
ELECTION, WHICH WAS HELD ON APRIL 1 AND 3, 1975, WAS WON BY THE NFFE.
ON APRIL 7, 1975, THE NFFE WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE
OF THE EMPLOYEES IN THE UNIT. FOR THE REASON BELOW, THE NFFE CONTENDS,
AND I AGREE, THAT THE AREA ADMINISTRATOR, IN ISSUING THE CERTIFICATION
OF REPRESENTATIVE, INADVERTENTLY EXCLUDED GUARDS. THEREAFTER, ON MAY
15, 1975, THE AFGE FILED A PETITION IN CASE NO. 30-6183(RO) SEEKING A
UNIT CONSISTING OF HOSPITAL POLICE OFFICERS AND STRUCTURAL FIREFIGHTERS
WHO PERFORM GUARD DUTIES AT THE ACTIVITY. ON OCTOBER 3, 1975, THE
REGIONAL ADMINISTRATOR DISMISSED THE PETITION AS UNTIMELY, CITING THE
FACT THAT THE NEGOTIATED AGREEMENT COVERING THE ABOVE EMPLOYEES WAS IN
EFFECT AND THAT THE OPEN PERIOD WOULD NOT BE IN EFFECT UNTIL JUNE OF
1976. ON DECEMBER 23, 1975, THE ASSISTANT SECRETARY DENIED THE AFGE'S
REQUEST FOR REVIEW OF THE REGIONAL ADMINISTRATOR'S DECISION.
THE RECORD INDICATES THAT THE NFFE HAS REPRESENTED THE OFFICERS OVER
THE YEARS, INCLUDING PARTICULARLY PROTECTING THEIR INTERESTS WHEN THERE
WAS A REORGANIZATION OF THE ACTIVITY AND THE STATUS OF THESE EMPLOYEES
WAS UNCERTAIN. MOREOVER, THE NFFE HAS REPRESENTED THE OFFICERS IN
NUMEROUS GRIEVANCES AND THERE ARE SEVERAL OFFICERS WHO ARE ON AUTHORIZED
DUES DEDUCTIONS.
UNDER ALL THE FOREGOING CIRCUMSTANCES, I FIND THAT, SUBSEQUENT TO THE
ELECTION HELD PURSUANT TO THE DIRECTION OF ELECTION IN A/SLMR NO. 484,
THE OFFICERS CONTINUED TO BE INCLUDED IN A UNIT REPRESENTED BY THE NFFE
BY VIRTUE OF ITS VICTORY IN THAT ELECTION. THUS, AS NOTED ABOVE, THE
ONLY REASON FOR THE EXCLUSION IN THE DIRECTION OF ELECTION OF THE
OFFICERS FROM THE UNIT FOUND APPROPRIATE IN A/SLMR NO. 484 WAS THE THEN
EXISTING PROHIBITION CONTAINED IN THE ORDER AGAINST THE ESTABLISHMENT OF
THE "LEGISLATIVE HISTORY" OF THE ORDER, AS SET FORTH IN THE STUDY
COMMITTEE'S REPORT AND RECOMMENDATIONS (1969), CLEARLY ESTABLISHED THAT
SUCH PROHIBITION DID NOT AFFECT EXISTING UNITS. IN APPLYING THESE
PRINCIPLES UNDER SLIGHTLY DIFFERENT CIRCUMSTANCES, IT WAS EARLIER HELD
THAT THE PROHIBITION REGARDING MIXED UNITS OF GUARD AND NON-GUARD
EMPLOYEES RELATED ONLY TO THE ESTABLISHMENT OF NEW UNITS, AND THAT UNTIL
SOME EVENT OCCURRED WHICH COULD BE SAID TO HAVE TERMINATED AND EXISTING
MIXED UNIT, SUCH MIXED UNIT WAS FREE TO CONTINUE IN EXISTENCE AS
CONSTITUTED. /6/ IT WAS FURTHER HELD THAT NEITHER THE FILING OF A
PETITION, NOR A DETERMINATION BY THE ASSISTANT SECRETARY THAT A SEGMENT
OF AN EXISTING UNIT IS AN APPROPRIATE UNIT FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION, STANDING ALONE, CONSTITUTED EVENTS WHICH WOULD TERMINATE AN
EXISTING UNIT. ALTHOUGH THE PETITION FILED BY THE AFGE, WHICH RESULTED
IN THE DECISION AND DIRECTION OF ELECTION IN A/SLMR NO. 484, SOUGHT TO
SEVER A UNIT OF NON-GUARDS FROM THE EXISTING MIXED UNIT, IN MY VIEW, THE
PRINCIPLES SET FORTH IN THE EARLIER CASES NOTED ABOVE ARE APPLICABLE.
THUS, IN MY OPINION, THE VOTE OF THE MAJORITY OF THE EMPLOYEES IN FAVOR
OF THE NFFE, THE INCUMBENT LABOR ORGANIZATION WHICH HAD BEEN
REPRESENTING THE MIXED UNIT, CONSTITUTED, IN EFFECT, AN INDICATION OF
THE DESIRE OF THE EMPLOYEES TO REMAIN IN THE EXISTING MIXED UNIT. UNDER
THESE CIRCUMSTANCES, I FIND THAT THE EXISTING MIXED UNIT CONTINUED IN
EXISTENCE AS CONSTITUTED SUBSEQUENT TO THE ELECTION.
HAVING FOUND THAT THE OFFICERS CONTINUED TO BE REPRESENTED BY THE
NFFE AS PART OF THE MIXED UNIT, I FIND THAT THE AFGE'S PETITION IS, IN
EFFECT, AN ATTEMPT TO SEVER A PORTION OF THE EXISTING EXCLUSIVELY
RECOGNIZED UNIT. IT HAS BEEN HELD PREVIOUSLY THAT THE PURPOSES AND
POLICIES OF THE ORDER WILL BEST BE EFFECTUATED BY FINDING INAPPROPRIATE
A SEPARATE UNIT SEVERED OUT OF AN EXISTING UNIT WHERE THE EVIDENCE SHOWS
THAT AN ESTABLISHED, EFFECTIVE AND FAIR COLLECTIVE BARGAINING
RELATIONSHIP IS IN EXISTENCE, ABSENT UNUSUAL CIRCUMSTANCES. /7/ AS
NOTED ABOVE, THERE IS NO EVIDENCE THAT THE NFFE HAS FAILED OR IMPROPERLY
REFUSED TO REPRESENT ANY EMPLOYEE, INCLUDING THE OFFICERS, IN THE
EXISTING BARGAINING UNIT. FURTHER, THE RECORD REVEALS THAT A HARMONIOUS
AND EFFECTIVE BARGAINING RELATIONSHIP HAS BEEN MAINTAINED SINCE 1965
BETWEEN THE ACTIVITY AND THE NFFE. ACCORDINGLY, IN THE ABSENCE OF ANY
UNUSUAL CIRCUMSTANCES WHICH WOULD WARRANT SEVERANCE OF CERTAIN EMPLOYEES
FROM THE EXISTING EXCLUSIVELY RECOGNIZED UNIT, I FIND THAT THE UNIT
SOUGHT BY THE AFGE HEREIN IS INAPPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION AND, ACCORDINGLY, I SHALL DISMISS THE PETITION. /8/
ORDER
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 30-7202(RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JULY 28, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ THE CLAIMED UNIT APPEARS AS AMENDED AT THE HEARING.
/2/ THE ACTIVITY ALSO ARGUES THAT ITS POSITION HEREIN IS SUPPORTED BY
THE REGIONAL ADMINISTRATOR'S DECISION OF OCTOBER 3, 1975, IN CASE NO.
30-6183(RO), IN WHICH HE DISMISSED AN AFGE PETITION SEEKING THE SAME
UNIT AS THE INSTANT PETITION AS UNTIMELY, BASED UPON THE TERMINATION
DATE OF THE NFFE'S NEGOTIATED AGREEMENT.
/3/ DURING ALL TIMES RELEVANT HEREIN THE AGREEMENT WAS IN EFFECT,
HAVING BEEN AUTOMATICALLY RENEWED SINCE THE ORIGINAL AGREEMENT WAS
SIGNED. THERE IS NO CONTENTION THAT THE PETITION HEREIN IS UNTIMELY.
/4/ THE OFFICERS WERE EXCLUDED FROM THE UNIT FOUND APPROPRIATE BY
REASON OF THE THEN EXISTING PROHIBITION CONTAINED IN THE ORDER.
/5/ SEE SECTION 10(B)(3) OF THE ORDER AS IT EXISTED PRIOR TO FEBRUARY
6, 1975. EXECUTIVE ORDER 11838, SIGNED BY THE PRESIDENT ON FEBRUARY 6,
1975, AMENDING EXECUTIVE ORDER 11491, AS AMENDED, REVOKED SECTION
10(B)(3). IN THIS REGARD, SEE ALSO THE REPORT AND RECOMMENDATIONS OF
THE FEDERAL LABOR RELATIONS COUNCIL, (1975) SECTION I(3).
/6/ SEE UNITED STATES DEPARTMENT OF THE ARMY, ROCKY MOUNTAIN ARSENAL,
DENVER, COLORADO, A/SLMR NO. 325, AND GENERAL SERVICES ADMINISTRATION,
REGION 9, SAN FRANCISCO, CALIFORNIA, A/SLMR NO. 333, WHERE THE PETITIONS
INVOLVED SOUGHT UNITS OF GUARDS TO BE SEVERED FROM EXISTING MIXED UNITS.
/7/ SEE HEADQUARTERS, UNITED STATES ARMY FIELD ARTILLERY CENTER,
DIRECTORATE OF FACILITIES ENGINEERS, FT. SILL, OKLAHOMA, A/SLMR NO. 696;
GENERAL SERVICES ADMINISTRATION, REGION NO. 5, QUALITY CONTROL
DIVISION, FEDERAL SUPPLY SERVICE, A/SLMR NO. 526; DEPARTMENT OF THE
NAVY, NAVAL AIR STATION, CORPUS CHRISTI, TEXAS, A/SLMR NO. 150, FLRC NO.
72A-24; AND UNITED STATES NAVAL CONSTRUCTION BATTALION CENTER, A/SLMR
NO. 8.
/8/ IN VIEW OF MY DISPOSITION HEREIN, I FIND IT UNNECESSARY TO
DETERMINE THE ELIGIBILITY OF EMPLOYEES CLASSIFIED AS POLICE OFFICER,
GS-083-6.
7 A/SLMR 871; P. 610; CASE NO. 20-5862(CA); JULY 28, 1977.
JULY 28, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
PENNSYLVANIA ARMY AND
AIR NATIONAL GUARD
A/SLMR NO. 871
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
ASSOCIATION OF CIVILIAN TECHNICIANS (ACT) ALLEGING THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1), (2), (5), AND (6) OF THE ORDER BY REFUSING TO
ALLOW AN EMPLOYEE TO HAVE A REPRESENTATIVE OF THE ACT PRESENT AT A
MEETING BETWEEN THE EMPLOYEE AND HIS FIRST AND SECOND LEVEL SUPERVISORS.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT HAD NOT
VIOLATED SECTION 19(A)(1), (2), (5) AND (6) OF THE ORDER. IN THIS
REGARD, THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE APRIL 23, 1976,
MEETING BETWEEN THE EMPLOYEE AND HIS FIRST AND SECOND LEVEL SUPERVISORS
DID NOT CONSTITUTE A "FORMAL DISCUSSION" WITHIN THE MEANING OF SECTION
10(E) OF THE ORDER AS THE MEETING WAS, IN EFFECT, A "COUNSELLING
SESSION" BETWEEN SUPERVISORS AND A SUBORDINATE AND HAD NO WIDER
RAMIFICATION THAN BEING A LIMITED DISCUSSION WITH AN INDIVIDUAL EMPLOYEE
CONCERNING PARTICULAR INCIDENTS AS TO HIM. IN REACHING THIS CONCLUSION,
THE ADMINISTRATIVE LAW JUDGE REJECTED THE ARGUMENT OF THE ACT THAT THE
RESPONDENT'S REGULATIONS, WHICH DISTINGUISH BETWEEN INFORMAL AND FORMAL
DISCIPLINARY ACTIONS SHOULD BE DISPOSITIVE OF THE ISSUE OF THE SECTION
10(E) CHARACTER OF THE MEETING. FURTHER, THE ADMINISTRATIVE LAW JUDGE
FOUND THAT THE NEGOTIATED AGREEMENT EXECUTED BY THE PARTIES ON MARCH 24,
1976, WHICH PROVIDED FOR, AMONG OTHER THINGS, UNION REPRESENTATION OF
EMPLOYEES AT DISCIPLINARY MEETINGS, WAS NOT EFFECTIVE UNTIL THE MAY 7,
1976, APPROVAL OF THE RESPONDENT, AND WAS NOT IN EFFECT DURING THE
CRITICAL TIMES HEREIN.
THE ASSISTANT SECRETARY, CITING THE FEDERAL LABOR RELATIONS COUNCIL'S
STATEMENT ON MAJOR POLICY ISSUE, FLRC NO. 75P-2, REPORT NO. 116, ADOPTED
THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW
JUDGE, AND ORDERED THAT THE COMPLAINT BE DISMISSED.
PENNSYLVANIA ARMY AND
AIR NATIONAL GUARD
RESPONDENT
CASE NO. 20-5862(CA)
AND
ASSOCIATION OF CIVILIAN TECHNICIANS
COMPLAINANT
DECISION AND ORDER
ON MARCH 18, 1977, ADMINISTRATIVE LAW JUDGE SALVATORE J. ARRIGO
ISSUED HIS RECOMMENDED DECISION 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.
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
THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE EXCEPTIONS AND
SUPPORTING BRIEF FILED BY THE COMPLAINANT, I HEREBY ADOPT THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
/1/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 20-5862(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JULY 28, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ SEE THE FEDERAL LABOR RELATIONS COUNCIL'S STATEMENT ON MAJOR
POLICY ISSUE, FLRC NO. 75P-2, REPORT NO. 116.
U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
SUITE 700-1111 20TH STREET, N.W.
WASHINGTON, D.C. 20036
IN THE MATTER OF
PENNSYLVANIA ARMY AND AIR NATIONAL
GUARD
RESPONDENT
CASE NO. 20-5862(CA)
AND
ASSOCIATION OF CIVILIAN TECHNICIANS
COMPLAINANT
MAJOR GEORGE M. ORNDOFF
PENNSYLVANIA ARMY AND AIR NATIONAL GUARD
ADJUTANT GENERAL'S OFFICE, COMMONWEALTH
OF PENNSYLVANIA, ANNVILLE, PENNSYLVANIA
FOR THE RESPONDENT
LEONARD SPEAR, ESQ.,
MERANZE, KATZ, SPEAR & WILDERMAN
12TH FLOOR, LEWIS TOWER BUILDING
15TH & LOCUST STS.
PHILADELPHIA, PENNSYLVANIA 19102
FOR THE COMPLAINANT
BEFORE: SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION
PRELIMINARY STATEMENT
THIS PROCEEDING ARISES UNDER THE PROVISIONS OF EXECUTIVE ORDER 11491,
AS AMENDED (HEREAFTER REFERRED TO AS THE ORDER). PURSUANT TO THE
REGULATIONS OF THE ASSISTANT SECRETARY OF LABOR FOR LABOR MANAGEMENT
RELATIONS (HEREAFTER REFERRED TO AS THE ASSISTANT SECRETARY), A NOTICE
OF HEARING ON COMPLAINT ISSUED ON NOVEMBER 12, 1976 WITH REFERENCE TO
ALLEGED VIOLATIONS OF SECTIONS 19(A)(1)(2)(5) AND (6) OF THE ORDER. THE
COMPLAINT, FILED BY ASSOCIATION OF CIVILIAN TECHNICIANS (HEREAFTER
REFERRED TO AS THE UNION OR COMPLAINANT) ALLEGED THAT PENNSYLVANIA ARMY
AND AIR NATIONAL GUARD (HEREAFTER REFERRED TO AS THE ACTIVITY OR
RESPONDENT) VIOLATED THE ORDER BY REFUSING TO ALLOW RICHARD TWOREK TO
HAVE A UNION REPRESENTATIVE PRESENT AT A MEETING BETWEEN TWOREK AND HIS
FIRST AND SECOND LEVEL SUPERVISORS.
AT THE HEARING HELD ON JANUARY 5, 1977 THE PARTIES WERE REPRESENTED
BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO ADDUCE EVIDENCE, CALL,
EXAMINE AND CROSS-EXAMINE WITNESSES AND ARGUE ORALLY. BRIEFS WERE
RECEIVED FROM BOTH PARTIES AND HAVE BEEN CAREFULLY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS MATTER AND FROM MY EVALUATION OF THE
EVIDENCE AND OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR I MAKE THE
FOLLOWING:
FINDINGS OF FACT
AT ALL TIMES SINCE 1974 THE UNION'S PENNSYLVANIA STATE COUNCIL HAS
BEEN THE EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE FOR ALL ARMY AND
AIR NATIONAL GUARD TECHNICIANS WITHIN THE COMMONWEALTH OF PENNSYLVANIA.
SOMETIME AFTER THE UNION OBTAINED REPRESENTATIVE STATUS THE PARTIES
ENTERED NEGOTIATIONS FOR AN AGREEMENT AND BY JANUARY 1975 REACHED
AGREEMENT ON BASICALLY ALL CONTRACT MATTERS EXCEPT THE SUBJECTS OF
REDUCTION IN FORCE AND WEARING OF MILITARY UNIFORMS. THESE TWO ISSUES
WERE REFERRED TO THE FEDERAL SERVICE IMPASSES PANEL WHICH, IN NOVEMBER
1975, RECOMMENDED THAT THE AGREEMENT BE PUT INTO EFFECT LESS THE TWO
DISPUTED ITEMS. IT WAS FURTHER RECOMMENDED THAT BARGAINING ON THE
REMAINING QUESTIONS COULD RESUME 180 DAYS AFTER THE BASIC AGREEMENT HAD
BEEN SIGNED. THE ACTIVITY REFUSED TO ACCEPT THE PANEL'S RECOMMENDATIONS
AND THEREAFTER, FORMAL HEARINGS WERE HELD BEFORE THE PANEL. PURSUANT
THERETO, THE PANEL, ON FEBRUARY 24, 1976, DIRECTED THAT THE PARTIES SIGN
THE AGREEMENT LESS THE TWO DISPUTED ITEMS AND ACCORDINGLY THE AGREEMENT
WAS SIGNED BY THE PARTIES ON MARCH 24, 1976. SECTION 20.1 OF THE
AGREEMENT PROVIDES THAT IT " . . . SHALL BECOME EFFECTIVE AND REMAIN IN
EFFECT FOR TWO (2) YEARS FROM THE DATE APPROVED BY THE NATIONAL GUARD
BUREAU." THE AGREEMENT WAS APPROVED BY THE NATIONAL GUARD BUREAU ON MAY
7, 1976.
ON APRIL 23, 1976, RICHARD TWOREK, WHO WAS AT THAT TIME AN EMPLOYEE
OF THE ACTIVITY, /1/ WAS INFORMED BY HIS IMMEDIATE SUPERVISOR JOSEPH
HOOD, THAT BOTH WERE WANTED IN THE OFFICE OF FRANK CATRAIN. CATRAIN WAS
HOOD'S SUPERVISOR AND TWOREK'S NEXT LEVEL SUPERVISOR. AFTER TWOREK AND
HOOD ENTERED CATRAIN'S OFFICE CATRAIN PRESENTED TWOREK WITH THE
FOLLOWING LETTER:
"SUBJECT: INFORMAL DISCIPLINARY ACTION
"TO: SSGT RICHARD TWOREK
"1. DURING NORMAL SCHEDULED WORKING HOURS AT APPROXIMATELY 1215
HOURS, 21 APRIL 1976
WITHIN THE CONFINES OF HANGER #1, BUILDING #302, YOU WERE OBSERVED AS
BEING IN VIOLATION OF
BASE REGULATIONS 35-1, "DRESS AND PERSONAL APPEARANCE OF ANG
PERSONNEL", AND AFR 35-10, DRESS
AND PERSONAL APPEARANCE OF A.F. PERSONNEL. THIS SITUATION WAS VERY
EMBARRASSING TO ME AS YOUR
SUPERVISOR. YOU WERE APPROACHED BY NONE OTHER THAN THE AIR
COMMANDER, BRIG GENERAL PHILLIPY
IN REGARD TO YOUR PERSONAL APPEARANCE.
"2. REPEATED PAST BRIEFINGS, LETTERS AND WARNINGS AS TO THE
REQUIREMENTS OF AFR 35-10, TPP
907 PAGE 13, AND BASE REGULATION 35-1, YOU WERE OBSERVED WITH YOUR
SHIRTTAIL OUT OF YOUR
TROUSERS (SIC).
"3. THIS IS AN INFORMAL DISCIPLINARY ACTION BUT WILL NOT BE PLACED
IN YOUR PERSONNEL
FILE. IT WILL BE MAINTAINED BY ME FOR FUTURE REFERENCE."
CATRAIN ASKED TWOREK TO READ THE LETTER AND ENDORSE IT. TWOREK ASKED
TO HAVE A UNION REPRESENTATIVE PRESENT AND CATRAIN REFUSED. /2/ CATRAIN
AGAIN ASKED THAT IT BE SIGNED AND TWOREK AGAIN REQUESTED AND WAS REFUSED
UNION REPRESENTATION. CATRAIN GAVE THE LETTER TO HOOD AND ASKED HIM TO
SIGN AND DATE THE LETTER, WHICH HE DID. AFTER TWOREK CONTINUED TO
REFUSE TO SIGN THE LETTER CATRAIN TOLD TWOREK IT WAS AN INFORMAL ACTION
AND WOULD BE PUT INTO THE "FILE". /3/ CATRAIN THEN BROUGHT OUT OF HIS
DESK A LETTER OF REPRIMAND DEALING WITH A PRIOR COMPLAINT OF ALLEGED
ABUSE OF SICK LEAVE ON TWOREK'S PART AND ASKED HIM TO SIGN IT. /4/
TWOREK REFUSED TO SIGN WITHOUT HAVING UNION REPRESENTATION AND
COUNSELLING. CATRAIN AGAIN REFUSED TO ALLOW UNION REPRESENTATION AND
NEITHER LETTER WAS SIGNED BY TWOREK.
THEREAFTER, THE UNFAIR LABOR PRACTICE CHARGES GIVING RISE TO THESE
PROCEEDINGS WAS FILED CONCERNING CATRAIN'S REFUSAL TO PERMIT TWOREK
REPRESENTATION AT THE APRIL 23 MEETING.
DISCUSSION AND CONCLUSIONS
COMPLAINANT CONTENDS THAT CATRAIN'S MEETING WITH TWOREK WAS A FORMAL
MEETING WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER AND
ACCORDINGLY, THE ACTIVITY VIOLATED THE ORDER WHEN CATRAIN REFUSED TO
PERMIT TWOREK UNION REPRESENTATION. /5/ COMPLAINANT ARGUES THAT THE
FORMALITY OF THE MEETING IS SHOWN BY REFERENCE TO THE ACTIVITY'S OWN
REGULATIONS WHICH APPEAR TO EQUATE INFORMAL DISCIPLINARY ACTIONS WITH
ORAL ADMONISHMENTS AND FORMAL DISCIPLINARY ACTIONS WITH WRITTEN
ADMONISHMENTS /6/ AND BY THE MANNER IN WHICH THE LETTER WAS SUBSEQUENTLY
USED. /7/ COMPLAINANT FURTHER CONTENDS THAT ON APRIL 23, 1976 WHEN THE
CATRAIN - TWOREK INCIDENT OCCURRED THE PARTIES WERE BOUND BY THE TERMS
OF THE COLLECTIVE BARGAINING AGREEMENT EXECUTED ON MARCH 24 WHICH,
ACCORDING TO THE UNION, GAVE TWOREK THE RIGHT TO REPRESENTATION UPON
DEMAND. /8/
THE ASSISTANT SECRETARY HAS HELD, IN SIMILAR CIRCUMSTANCES, THAT
"COUNSELLING SESSIONS" BETWEEN SUPERVISORS AND SUBORDINATES WHICH RELATE
ONLY TO AN INDIVIDUAL EMPLOYEE'S ALLEGED SHORTCOMINGS ARE NOT FORMAL
DISCUSSIONS UNDER SECTION 10(E) OF THE ORDER. ACCORDING TO THE
SECRETARY, SUCH MEETINGS HAVE " . . . NO WIDER RAMIFICATIONS THAN BEING
LIMITED DISCUSSIONS AT A PARTICULAR TIME WITH AN INDIVIDUAL EMPLOYEE . .
. CONCERNING PARTICULAR INCIDENTS AS TO HIM." /9/ IN MY VIEW THE MEETING
BETWEEN CATRAIN AND TWOREK ON APRIL 23 WAS TANTAMOUNT TO A "COUNSELLING
SESSION" AND DID NOT INVOLVE GENERAL WORKING CONDITIONS. ACCORDINGLY, I
CONCLUDE THE MEETING DID NOT CONSTITUTE A "FORMAL DISCUSSION" WITHIN THE
MEANING OF SECTION 10(E) OF THE ORDER AND, IN THESE CIRCUMSTANCES,
TWOREK DID NOT HAVE A PROTECTED RIGHT UNDER THE ORDER TO ASSISTANCE OR
REPRESENTATION BY THE EXCLUSIVE REPRESENTATIVE. /10/
WITH REGARD TO COMPLAINANT'S RELIANCE ON THE ACTIVITY'S REGULATIONS
WHICH DISTINGUISH BETWEEN INFORMAL AND FORMAL DISCIPLINARY ACTIONS, I DO
NOT FIND THE REGULATIONS TO BE DISPOSITIVE OF THE CASE HEREIN. WHAT IS
AT ISSUE BEFORE ME IS WHETHER THE APRIL 23 MEETING CONSTITUTED A "FORMAL
DISCUSSION" WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER AND NOT
WITHIN THE MEANING OF THE ACTIVITY'S REGULATIONS. HAVING FOUND NO
FORMAL DISCUSSION OCCURRED ON APRIL 23 AS ALLEGED, I NEED NOT DECIDE
WHETHER A FORMAL DISCUSSION AS ENVISIONED IN THE REGULATIONS TOOK PLACE.
IN ANY EVENT, AN AGENCY'S FAILURE TO ABIDE BY ITS OWN REGULATIONS DOES
NOT, WITHOUT MORE, CONSTITUTE A VIOLATION OF THE ORDER. /11/
AS TO THE SUBSEQUENT USE OF THE LETTER, I AM UNPERSUADED THAT THE
INTRODUCTION OF THE LETTER INTO FEDERAL COURT LITIGATION ESTABLISHES THE
APRIL 23 MEETING TO BE A "FORMAL DISCUSSION." EITHER A "FORMAL
DISCUSSION" OCCURRED ON APRIL 23 OR IT DID NOT. I HAVE FOUND THE
LATTER. IN MY VIEW THE SUBMISSION OF TESTIMONY, LETTERS, RECORDS OR
VARIOUS OTHER EVIDENCE AT A FORMAL PROCEEDING SUCH AS A COURT SUIT
CANNOT RELATE BACK AND ELEVATE OTHERWISE NON-FORMAL ACTIONS TO FORMAL
ACTS OR CONDUCT WITHIN THE MEANING OF THE ORDER.
FINALLY, I REJECT COMPLAINAN'TS CONTENTION THAT THE PARTIES WERE
BOUND ON APRIL 23, 1976 BY THE TERMS OF THE COLLECTIVE BARGAINING
AGREEMENT EXECUTED ON MARCH 24, 1976 BUT NOT APPROVED UNTIL MAY 7. AS
STATED PREVIOUSLY, THE AGREEMENT PROVIDES THAT IT " . . . SHALL BECOME
EFFECTIVE AND REMAIN IN EFFECT FOR TWO (2) YEARS FROM THE DATE APPROVED
BY THE NATIONAL GUARD BUREAU." THUS, THE EXPRESS LANGUAGE USED BY THE
PARTIES MADE THE TERMS OF THE AGREEMENT APPLICABLE FOR A TWO YEAR PERIOD
COMMENCING WITH BUREAU APPROVAL. I MUST ASSUME THE PARTIES MEANT WHAT
THEY CONTRACTUALLY SAID. ACCORDINGLY, I CONCLUDE THAT ON APRIL 23, 1976
THE TERMS OF THE AGREEMENT WERE NOT IN EFFECT AND THE ACTIVITY WAS NOT
OBLIGATED TO ACCEDE TO TWOREK'S REQUEST FOR REPRESENTATION AT HIS
MEETING WITH CATRAIN AND HOOD. /12/
RECOMMENDATION
IN ALL THE CIRCUMSTANCES HEREIN I RECOMMEND THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY.
SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 18, 1977
WASHINGTON, D.C.
/1/ ON SEPTEMBER 11, 1976, TWOREK WAS TERMINATED FROM EMPLOYMENT BY
VIRTUE OF HIS LOSS OF MILITARY MEMBERSHIP, A PREREQUISITE TO TO
RETAINING EMPLOYMENT AS A CIVILIAN TECHNICIAN.
/2/ WHILE SOME SUPERVISORS AT THAT TIME FOLLOWED THE PRACTICE OF
PERMITTING A UNION REPRESENTATIVES TO BE PRESENT WHEN A WRITTEN
REPRIMAND OR ADMONISHMENT WAS GIVEN TO AN EMPLOYEE, CATRAIN, AMONG
OTHERS, DID NOT PERMIT SUCH REPRESENTATION.
/3/ NO EXPLANATION WAS GIVEN AS TO WHAT SPECIFIC "FILE" THE LETTER
WOULD BE DEPOSITED. HOWEVER, THE LETTER DID NOT GO TO TWOREK OFFICIAL
PERSONNEL FILE.
/4/ TWOREK HAD ORIGINALLY BEEN GIVEN A LETTER OF REPRIMAND AS TO
EXCESSIVE ABSENTEEISM WHICH WAS SUBSEQUENTLY REVISED TO ABUSE OF SICK
LEAVE.
/5/ SECTION 10(E) PROVIDES, IN RELEVANT PART: "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.
/6/ T P PAM 904 OF THE ACTIVITY'S REGULATIONS PROVIDES, IN RELEVANT
PART:
"A. INFORMAL DISCIPLINARY ACTIONS. ORAL ADMONITIONS AND WARNINGS
ARE THE FIRST STEP IN CONSTRUCTIVE DISCIPLINE. AS A GENERAL RULE, SUCH
ACTIONS ARE TAKEN BY THE SUPERVISOR ON HIS OWN INITIATIVE IN SITUATIONS
OF A MINOR NATURE INVOLVING VIOLATIONS OF A RULE, STANDARD OF CONDUCT,
SAFETY PRACTICE, OR AUTHORITATIVE INSTRUCTIONS. THE TECHNICIAN SHOULD
BE ADVISED OF THE SPECIFIC INFRACTION OR BREACH OF CONDUCT AND EXACTLY
WHEN IT OCCURRED (DATE OF INCIDENT), AND HE SHOULD BE PERMITTED TO
EXPLAIN HIS CONDUCT OR ACT OF COMMISSION OR OMMISSION.
"B. FORMAL DISCIPLINARY ACTIONS. FORMAL DISCIPLINARY ACTIONS
CONSIST OF WRITTEN ADMONITIONS OR REPRIMANDS, SUSPENSIONS AND REMOVALS.
WRITTEN NOTICES WILL BE AS OUTLINED IN PARAGRAPH 7-42 THIS PAMPHLET. A
COPY OF THESE NOTICES WILL BE SENT TO THE TECHNICIAN PERSONNEL OFFICE,
SINCE SUCH ACTIONS MAY NOT BE ACCOMPLISHED WITHOUT ACTION ON THE PART OF
THE TECHNICIAN PERSONNEL OFFICE. A DISCIPLINARY MEASURE SHOULD NOT
INVOLVE A REDUCTION IN RANK OR COMPENSATION."
/7/ AFTER HIS TERMINATION, TWOREK BROUGHT SUIT IN FEDERAL COURT
AGAINST THE ACTIVITY. DURING THE LITIGATION IN THAT FORUM RESPONDENT
HEREIN OFFERED IN EVIDENCE THE APRIL 22 DOCUMENT, SUPRA.
/8/ SECTION 12.1 OF THE AGREEMENT PROVIDES, INTER ALIA:
"IF AT ANY TIME A TECHNICIAN IS BEING QUESTIONED BY A SUPERVISOR OR
MANAGEMENT OFFICIAL AND/OR HE BELIEVES THAT HIS RIGHTS ARE BEING
THREATENED, HE HAS A RIGHT TO REQUEST THAT HIS ASSOCIATION
REPRESENTATIVE BE PRESENT. SHOULD HE ELECT TO HAVE AN ASSOCIATION
REPRESENTATIVE PRESENT, NO FURTHER QUESTIONING OR ACTION WILL TAKE PLACE
UNTIL THE TECHNICIAN'S REPRESENTATIVE IS PRESENT."
/9/ DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU, TEXAS AIR NATIONAL
GUARD, A/SLMR NO. 336.
/10/ ACCORD, FEDERAL AVIATION ADMINISTRATION, NATIONAL AVIATION
FACILITIES EXPERIMENTAL CENTER, ATLANTIC CITY, NEW JERSEY, A/SLMR NO.
438, CASE NO. 32-3297(CA).
/11/ CF. OFFICE OF ECONOMIC OPPORTUNITY, REGION V. CHICAGO, ILLINOIS,
A/SLMR NO. 344.
/12/ CF. VETERANS ADMINISTRATION HOSPITAL, MONTROSE, NEW YORK, A/SLMR
NO. 484 AND UNITED STATES DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION, NATIONAL WEATHER SERVICE, WESTERN REGION,
A/SLMR NO. 794.
7 A/SLMR 870; P. 606; CASE NO. 40-07487(RO); JULY 22, 1977.
JULY 22, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND DIRECTION OF ELECTION
OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
INTERNAL REVENUE SERVICE,
OFFICE OF THE 9REGIONAL COMMISSIONER,
SOUTHEAST REGION
A/SLMR NO. 870
THIS CASE AROSE AS A RESULT OF A REPRESENTATION PETITION FILED BY THE
NATIONAL TREASURY EMPLOYEES UNION (NTEU) SEEKING AN ELECTION IN A UNIT
OF ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE INTERNAL
REVENUE SERVICE, OFFICE OF THE REGIONAL COMMISSIONER, SOUTHEAST REGION
(ACTIVITY). THE NTEU PREVIOUSLY PETITIONED FOR THE SAME UNIT WHICH WAS
FOUND APPROPRIATE IN INTERNAL REVENUE SERVICE, OFFICE OF THE REGIONAL
COMMISSIONER, SOUTHEAST REGION, A/SLMR NO. 565. IN THAT CASE A QUESTION
WAS RAISED AS TO THE ADEQUACY OF THE NTEU'S SHOWING OF INTEREST BASED ON
THE ELIGIBILITY FINDINGS CONTAINED IN THE DECISION. THE PETITION WAS
SUBSEQUENTLY DISMISSED BASED UPON THE RESULTS OF A REVALUATION OF THE
SHOWING OF INTEREST. THE PARTIES AGREED THAT THE UNIT FOUND APPROPRIATE
IN THE PREVIOUS CASE AND PETITIONED FOR IN THE INSTANT MATTER CONTINUES
TO BE APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. A NOTICE OF
HEARING WAS ISSUED IN THE INSTANT MATTER IN ORDER TO ADDUCE EVIDENCE ON
THE ELIGIBILITY OF EMPLOYEES IN CERTAIN JOB CLASSIFICATIONS.
SPECIFICALLY THE ACTIVITY CONTENDS, AND THE NTEU CONCURS, THAT THE
EMPLOYEES IN CERTAIN JOB CLASSIFICATIONS SHOULD BE EXCLUDED FROM THE
UNIT BECAUSE SUCH EMPLOYEES ARE MANAGEMENT OFFICIALS AND/OR CONFIDENTIAL
EMPLOYEES. IN ADDITION, THE ACTIVITY CONTENDS THAT EMPLOYEES IN THE
CLASSIFICATION OF BUDGET ANALYST, GS-560-12, ARE SUPERVISORS AND THAT
THE EMPLOYEE CLASSIFIED AS APPOINTMENT CLERK, GS-203-5, IS ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND
THAT THEY, THEREFORE, SHOULD BE EXCLUDED FROM THE BARGAINING UNIT.
THE ASSISTANT SECRETARY NOTED THAT WITH THE EXCEPTION OF THE
APPOINTMENT CLERK, GS-203-5, THE ELIGIBILITY OF ALL THE EMPLOYEES IN THE
SUBJECT CLASSIFICATIONS WAS FULLY LITIGATED AND DETERMINED IN THE
EARLIER CASE TO BE INCLUDED WITHIN THE UNIT FOUND APPROPRIATE. IN THE
ASSISTANT SECRETARY'S VIEW, IT WOULD NOT EFFECTUATE THE PURPOSES AND
POLICIES OF THE ORDER TO PERMIT THE SAME PARTIES TO RELITIGATE THE SAME
ISSUES INCLUDING THE SAME CLASSIFICATIONS RAISED IN A PRIOR HEARING, IN
THE ABSENCE OF EVIDENCE OF SOME CHANGE IN CIRCUMSTANCES. ACCORDINGLY,
THE ASSISTANT SECRETARY FOUND, BASED ON THE DETERMINATION IN THE EARLIER
CASE, THAT EMPLOYEES IN THE DISPUTED CLASSIFICATIONS SHOULD BE INCLUDED
IN THE UNIT FOUND APPROPRIATE. HOWEVER, WITH REGARD TO EMPLOYEES
CLASSIFIED AS BUDGET ANALYST, GS-560-12, THE RECORD DISCLOSED THAT SINCE
THE HEARING IN THE PREVIOUS CASE ADDITIONAL DUTIES HAD BEEN ASSIGNED TO
SUCH EMPLOYEES. BASED UPON THE RECORD, THE ASSISTANT SECRETARY FOUND
INSUFFICIENT EVIDENCE TO ESTABLISH THAT EMPLOYEES IN THIS CLASSIFICATION
ARE SUPERVISORS WITHIN THE MEANING OF THE ORDER. ACCORDINGLY, HE FOUND
THAT EMPLOYEES IN THIS JOB CLASSIFICATION SHOULD BE INCLUDED IN THE
UNIT. FINALLY, BASED ON THE PARTIES' STIPULATION, THE ASSISTANT
SECRETARY FOUND THAT THE EMPLOYEE CLASSIFIED AS APPOINTMENT CLERK,
GS-203-5, TO BE ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY AND, THEREFORE, SHOULD BE EXCLUDED FROM THE UNIT FOUND
APPROPRIATE.
BASED ON THE FOREGOING, THE ASSISTANT SECRETARY FOUND THE UNIT SOUGHT
TO BE APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION, AND ORDERED
THAT AN ELECTION BE CONDUCTED.
INTERNAL REVENUE SERVICE,
OFFICE OF THE REGIONAL COMMISSIONER,
SOUTHEAST REGION
ACTIVITY
CASE NO. 40-07487(RO)
AND
NATIONAL TREASURY EMPLOYEES
UNION
PETITIONER
DECISION AND DIRECTION OF ELECTION
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER ANNETTE ALLEN.
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/
A NOTICE OF HEARING WAS ISSUED IN THE INSTANT MATTER IN ORDER TO
ADDUCE EVIDENCE ON THE ELIGIBILITY OF EMPLOYEES IN CERTAIN JOB
CLASSIFICATIONS. SPECIFICALLY, THE ACTIVITY CONTENDS, AND THE NTEU
CONCURS, THAT THE EMPLOYEES IN THE FOLLOWING JOB CLASSIFICATIONS ARE
MANAGEMENT OFFICIALS AND/OR CONFIDENTIAL EMPLOYEES, AND ON THESE BASES
SHOULD BE EXCLUDED FROM THE BARGAINING UNIT: FISCAL ANALYST, GS-501-7,
9; BUDGET ANALYST, GS-650-9, 11, 12; MANAGEMENT ANALYST, GS-343-1112;
SENIOR MANAGEMENT ANALYST, GS-343-12; REGIONAL ANALYST AUDIT,
GS-512-12, 13; SENIOR REGIONAL ANALYST AUDIT, GS-512-14; INDUSTRIAL
ENGINEER, GS-896-12, 13. IN ADDITION, THE ACTIVITY CONTENDS THAT
EMPLOYEES IN THE CLASSIFICATION OF BUDGET ANALYST, GS-560-12, ARE
SUPERVISORS, AND THE EMPLOYEE CLASSIFIED AS APPOINTMENT CLERK, GS-203-5,
IS ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, AND THAT THEY, THEREFORE, SHOULD BE EXCLUDED FROM THE
BARGAINING UNIT. /2/
FISCAL ANALYST, GS-507-7, 9; BUDGET ANALYST, GS-650-9, 11, 12;
MANAGEMENT ANALYST, GS-343-11, 12; SENIOR MANAGEMENT ANALYST,
GS-343-12; REGIONAL ANALYST AUDIT, GS-512-12; SENIOR REGIONAL ANALYST
AUDIT, GS-512-14; INDUSTRIAL ENGINEER, GS-896-12, 13.
IN THE PRIOR CASE, THE ELIGIBILITY OF THE EMPLOYEES IN THE ABOVE
CLASSIFICATIONS WAS FULLY LITIGATED AND THEY WERE DETERMINED BY THE
ASSISTANT SECRETARY TO BE INCLUDED WITHIN THE UNIT FOUND APPROPRIATE.
THE RECORD REVEALS THAT SINCE THE EARLIER HEARING THERE HAS BEEN NO
CHANGE IN THE DUTIES OR RESPONSIBILITIES OF THE EMPLOYEES IN THE SUBJECT
CLASSIFICATIONS. IN MY VIEW, IT WOULD NOT EFFECTUATE THE PURPOSES AND
POLICIES OF THE ORDER TO PERMIT THE SAME PARTIES TO RELITIGATE THE SAME
ISSUES INVOLVING THE SAME CLASSIFICATIONS RAISED IN A PRIOR HEARING, IN
THE ABSENCE OF EVIDENCE OF SOME CHANGE IN CIRCUMSTANCES. ACCORDINGLY,
IN THE ABSENCE OF SUCH EVIDENCE, I FIND, BASED ON THE ASSISTANT
SECRETARY'S DETERMINATION IN INTERNAL REVENUE SERVICE, OFFICE OF THE
REGIONAL COMMISSIONER, SOUTHEAST REGION, CITED ABOVE, THAT THE EMPLOYEES
IN THE ABOVE CLASSIFICATIONS SHOULD BE INCLUDED IN THE UNIT FOUND
APPROPRIATE.
BUDGET ANALYST, GS-560-12
THE ELIGIBILITY OF EMPLOYEES IN THE SUBJECT CLASSIFICATION WAS
LITIGATED AND DETERMINED IN THE EARLIER CASE. HOWEVER, THE RECORD
REVEALS THAT SINCE THE HEARING IN THE PREVIOUS CASE ADDITIONAL DUTIES
HAVE BEEN ASSIGNED TO SUCH EMPLOYEES. IN THIS REGARD, THE RECORD
REVEALS THAT EMPLOYEES IN THIS CLASSIFICATION HAVE BEEN DESIGNATED "TEAM
LEADERS" OF A TEAM WHICH CONSISTS OF A LOWER GRADED BUDGET ANALYST, A
BUDGET TECHNICIAN AND/OR A BUDGET CLERK. EMPLOYEES IN THE SUBJECT
CLASSIFICATION REPORT DIRECTLY TO THE BUDGET OFFICER, AND, AMONG THEIR
ADDITIONAL DUTIES, THEY ARE RESPONSIBLE FOR COORDINATING AND ROUTINELY
ASSIGNING WORK TO THE MEMBERS OF THEIR TEAM, AND MAKING RECOMMENDED
EVALUATIONS OF THEIR TEAM MEMBERS TO ASSIST THE BUDGE OFFICER IN MAKING
PERFORMANCE EVALUATIONS.
I FIND THAT THE EVIDENCE DOES NOT ESTABLISH THAT EMPLOYEES IN THE
CLASSIFICATION OF BUDGET ANALYST, GS-560-12, ARE SUPERVISORS WITHIN THE
MEANING OF SECTION 2(C) OF THE EXECUTIVE ORDER. IN THIS REGARD, IT WAS
NOTED THAT THE EVIDENCE DOES NOT ESTABLISH THAT THE EMPLOYEES IN THE
SUBJECT JOB CLASSIFICATION HAVE THE AUTHORITY TO HIRE, DISCHARGE,
PROMOTE, APPROVE LEAVE, ADJUST GRIEVANCES, OR EFFECTIVELY RECOMMEND SUCH
ACTIONS. FURTHER THE RECORD DOES NOT REVEAL THAT THEY UTILIZE
INDEPENDENT JUDGMENT OR EXERCISE AUTHORITY IN OTHER THAN A ROUTINE
MANNER WITH RESPECT TO OTHER EMPLOYEES. ACCORDINGLY, I FIND THAT
EMPLOYEES IN THE JOB CLASSIFICATION OF BUDGET ANALYST, GS-560-12, SHOULD
BE INCLUDED IN THE UNIT FOUND APPROPRIATE.
APPOINTMENT CLERK, GS-203-5
THE PARTIES STIPULATED THAT THE INCUMBENT IN THE SUBJECT
CLASSIFICATION SPENDS A MAJORITY OF TIME ENGAGED IN THE PREPARATION AND
PROCESSING OF PERSONNEL ACTIONS, SUCH AS PROMOTIONS, REASSIGNMENTS, PAY
INCREASES, TRANSFERS, ADVERSE ACTION, ETC., AND IS PRIMARILY ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY.
BASED ON THE FOREGOING STIPULATION, AND IN THE ABSENCE OF EVIDENCE TO
THE CONTRARY, I FIND THAT THE EMPLOYEE CLASSIFIED AS APPOINTMENT CLERK,
GS-203-5, IS ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY AND, ACCORDINGLY, SHOULD BE EXCLUDED FROM THE UNIT.
BASED UPON THE RECORD DEVELOPED IN THE EARLIER CASE, AND NOTING THE
AGREEMENT OF THE PARTIES HEREIN, I FIND THE FOLLOWING DESCRIBED UNIT OF
EMPLOYEES TO BE APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
UNDER THE PROVISIONS 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.
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 (B): 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.
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.
DIRECTION OF ELECTION
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 ADMINISTRATOR 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.
DATED, WASHINGTON, D.C.
JULY 22, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ THE NTEU PREVIOUSLY PETITIONED FOR THE SAME UNIT WHICH WAS FOUND
APPROPRIATE IN INTERNAL REVENUE SERVICE, OFFICE OF THE REGIONAL
COMMISSIONER, SOUTHEAST REGION, A/SLMR NO. 565. IN THAT CASE A QUESTION
WAS RAISED AS TO THE ADEQUACY OF THE NTEU'S SHOWING OF INTEREST BASED ON
THE ELIGIBILITY FINDINGS CONTAINED IN THE DECISION. THEREFORE, THE
ASSISTANT SECRETARY DIRECTED THE AREA ADMINISTRATOR TO REVALUATE THE
SHOWING OF INTEREST PRIOR TO PROCEEDING FURTHER IN THE MATTER. THE
PETITION WAS SUBSEQUENTLY DISMISSED BASED UPON THE RESULTS OF THE
REVALUATION. THE PARTIES AGREE THAT THE UNIT FOUND APPROPRIATE IN THAT
CASE, AND PETITIONED FOR IN THE INSTANT MATTER, CONTINUES TO BE
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION, AND, PURSUANT TO
THE PARTIES' REQUEST, I HEREBY TAKE ADMINISTRATIVE NOTICE OF THE RECORD
IN THE EARLIER CASE.
/2/ AT THE HEARING, THE PARTIES STIPULATED THAT EMPLOYEES IN ALL OF
THE CLASSIFICATIONS AT ISSUE HEREIN, WITH THE EXCEPTION OF THE EMPLOYEE
CLASSIFIED AS APPOINTMENT CLERK, GS-203-5, ARE PROFESSIONAL EMPLOYEES
WITHIN THE MEANING OF THE ORDER. THERE WAS NO CONTRARY EVIDENCE TO
INDICATE THAT THE PARTIES' STIPULATION WAS IMPROPER.
7 A/SLMR 869; P. 604; CASE NO. 22-7432(CU); JULY 22, 1977.
JULY 22, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER CLARIFYING UNIT
OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
U.S. COMMISSION ON CIVIL RIGHTS,
WASHINGTON, D.C.
A/SLMR NO. 869
THIS CASE INVOLVED A PETITION FOR CLARIFICATION OF UNIT (CU) FILED BY
THE ACTIVITY SEEKING TO EXCLUDE THE POSITIONS OF FEDERAL WOMEN'S PROGRAM
COORDINATOR (FWPC) AND SPANISH SPEAKING PROGRAM COORDINATOR (SSPC) FROM
THE EXCLUSIVELY RECOGNIZED UNIT. IN THIS REGARD, THE ACTIVITY CONTENDED
THAT THE EMPLOYEES IN SAID POSITIONS WERE MANAGEMENT OFFICIALS WITHIN
THE MEANING OF THE ORDER. CONTRARY TO THE ACTIVITY, THE AMERICAN
FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, AFL-CIO, LOCAL
2478 (AFSCME) CONTENDED THAT BOTH POSITIONS SHOULD REMAIN IN THE UNIT.
THE ASSISTANT SECRETARY FOUND THAT THE FWPC AND THE SSPC WERE NOT
MANAGEMENT OFFICIALS WITHIN THE MEANING OF THE ORDER, AS THE EVIDENCE
DID NOT ESTABLISH THAT EMPLOYEES IN SUCH POSITIONS HAD AUTHORITY TO MAKE
OR TO INFLUENCE EFFECTIVELY ACTIVITY POLICIES WITH RESPECT TO PERSONNEL,
PROCEDURES, OR PROGRAMS. IN THIS REGARD, THE RECORD REVEALED THAT THEY
SERVED AS RESOURCE PERSONS, RENDERING RESOURCE INFORMATION AND
RECOMMENDATIONS WITH RESPECT TO THE POLICY IN QUESTION. MOREOVER, IT
WAS NOTED THAT THE DUTIES OF SAID POSITIONS WERE NOT THE OFFICIAL DUTIES
OF THE INCUMBENTS AND THEIR INVOLVEMENT WAS RESTRICTED TO 20 PERCENT OF
THEIR WORK TIME. ACCORDINGLY, THE ASSISTANT SECRETARY CLARIFIED THE
EXCLUSIVELY RECOGNIZED UNIT BY INCLUDING IN THE UNIT THE POSITIONS OF
FEDERAL WOMEN'S PROGRAM COORDINATOR AND SPANISH SPEAKING PROGRAM
COORDINATOR.
U.S. COMMISSION ON CIVIL RIGHTS,
WASHINGTON, D.C.
ACTIVITY-PETITIONER
CASE NO. 22-7432(CU)
AND
AMERICAN FEDERATION OF STATE, COUNTY,
AND MUNICIPAL EMPLOYEES, AFL-CIO,
LOCAL 2478
LABOR ORGANIZATION
DECISION AND ORDER CLARIFYING UNIT
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER DANIEL F. SUTTON.
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, THE ASSISTANT SECRETARY FINDS:
BY ITS PETITION HEREIN, THE ACTIVITY-PETITIONER, ALSO CALLED THE
ACTIVITY, SEEKS TO EXCLUDE THE POSITIONS OF FEDERAL WOMEN'S PROGRAM
COORDINATOR (FWPC) AND SPANISH SPEAKING PROGRAM COORDINATOR (SSPC) FROM
THE EXCLUSIVELY RECOGNIZED UNIT. IN THIS REGARD, THE ACTIVITY CONTENDS
THAT THE EMPLOYEES IN SAID POSITIONS ARE MANAGEMENT OFFICIALS WITHIN THE
MEANING OF THE ORDER. THE AMERICAN FEDERATION OF STATE, COUNTY, AND
MUNICIPAL EMPLOYEES, AFL-CIO, LOCAL 2478, HEREIN CALLED AFSCME,
CONTENDS, ON THE OTHER HAND, THAT THERE IS NO BASIS FOR EXCLUDING
EMPLOYEES IN SAID POSITIONS FROM ITS EXCLUSIVELY RECOGNIZED UNIT. /1/
THE RECORD REVEALS THAT THE AFSCME WAS CERTIFIED AS EXCLUSIVE
REPRESENTATIVE FOR A NATIONWIDE UNIT CONSISTING OF ALL PROFESSIONAL AND
NONPROFESSIONAL EMPLOYEES OF THE ACTIVITY ON FEBRUARY 26, 1973. /2/ THE
ACTIVITY IS HEADED BY SEVERAL COMMISSIONERS AND IS ORGANIZED INTO A
HEADQUARTERS AND EIGHT REGIONS. THE HEADQUARTERS UNIT IS HEADED BY A
STAFF DIRECTOR UNDER WHOM IS THE DEPUTY STAFF DIRECTOR. REPORTING TO
THE DEPUTY STAFF DIRECTOR IS THE DIRECTOR OF EQUAL EMPLOYMENT
OPPORTUNITY (EEO), WHO IS RESPONSIBLE FOR IMPLEMENTING EQUAL EMPLOYMENT
OPPORTUNITY PROGRAMS WITHIN THE ACTIVITY. UNDER THE DIRECTOR OF EEO IS
AN EEO COMMITTEE COMPRISED OF THE FWPC, THE SSPC, THE HEADQUARTERS EEO
COUNSELORS, AND THE MID-ATLANTIC REGIONAL OFFICE EEO COUNSELOR. THE
FWPC AND THE SSPC ARE PART-TIME POSITIONS AND ARE APPOINTED BY THE
DEPUTY STAFF DIRECTOR FOR A TWO YEAR TERM. PERSONS APPOINTED TO THESE
POSITIONS SPEND APPROXIMATELY 20 PERCENT OF THEIR TIME PERFORMING THIS
WORK AND THE REMAINING TIME IN THEIR OFFICIAL JOBS AT THE HEADQUARTERS.
THE RECORD REVEALS THAT THE FWPC AND THE SSPC ADVISE THE DIRECTOR OF
EEO ON MATTERS AFFECTING THE EMPLOYMENT AND ADVANCEMENT OF WOMEN AND
EMPLOYEES OF SPANISH SPEAKING BACKGROUND. RECOMMENDATIONS FOR CHANGES
IN THE ACTIVITY'S POLICIES AFFECTING THESE GROUPS ARE NORMALLY PROCESSED
THROUGH THE DIRECTOR OF EEO. IN THE PAST, RECOMMENDATIONS HAVE INCLUDED
SUCH ITEMS AS UPWARD MOBILITY AND PARAPROFESSIONAL TRAINING, ORIENTATION
PROGRAMS, UTILIZING BILINGUAL AND BICULTURAL ABILITIES, AND DETERMINING
TITLES FOR OCCUPATIONAL AND STATISTICAL CATEGORIES. THE EVIDENCE ALSO
INDICATES THAT DECISION MAKING AUTHORITY OVER RECOMMENDED POLICY CHANGES
IS RESTRICTED TO THE STAFF DIRECTOR AND THE COMMISSIONERS.
WITH RESPECT TO THE RECOMMENDATIONS SUBMITTED BY THE FWPC AND THE
SSPC, THE RECORD REVEALS THAT THE DIRECTOR OF EEO DECIDES WHETHER TO
FORWARD THEM TO THE DEPUTY STAFF DIRECTOR AND MY ATTACH HIS
RECOMMENDATIONS. THE RECORD ALSO REVEALS THAT THE FWPC AND THE SSPC ARE
NOT NORMALLY PRESENT AT THE DECISION MAKING POLICY DISCUSSIONS HELD
CONCERNING THEIR RECOMMENDATIONS.
BASED ON THE FOREGOING CIRCUMSTANCES, I FIND THAT THE FWPC AND THE
SSPC ARE NOT MANAGEMENT OFFICIALS WITHIN THE MEANING OF THE ORDER.
THUS, IN MY VIEW, THE EVIDENCE ESTABLISHES THAT SUCH EMPLOYEES DO NOT
HAVE AUTHORITY TO MAKE OR TO INFLUENCE EFFECTIVELY ACTIVITY POLICIES
WITH RESPECT TO PERSONNEL, PROCEDURES, OR PROGRAMS. RATHER, I FIND THAT
THEY SERVE AS RESOURCE PERSONS RENDERING RESOURCE INFORMATION AND
RECOMMENDATIONS WITH RESPECT TO THE POLICY IN QUESTION. /3/ MOREOVER,
IT WAS NOTED THAT THE DUTIES OF SAID POSITIONS ARE NOT THE OFFICIAL
DUTIES OF THE APPOINTED EMPLOYEES, AND THEIR INVOLVEMENT IS RESTRICTED
TO 20 PERCENT OF THEIR WORK TIME. ACCORDINGLY, I FIND THAT THE
POSITIONS OF FEDERAL WOMEN'S PROGRAM COORDINATOR AND SPANISH SPEAKING
PROGRAM COORDINATOR SHOULD BE INCLUDED IN THE UNIT.
ORDER
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, FOR
WHICH THE AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES,
AFL-CIO, LOCAL 2478 WAS CERTIFIED ON FEBRUARY 26, 1973, BE, AND HEREBY
IS, CLARIFIED BY INCLUDING IN SAID UNIT THE POSITIONS OF FEDERAL WOMEN'S
PROGRAM COORDINATOR AND SPANISH SPEAKING PROGRAM COORDINATOR.
DATED, WASHINGTON, D.C.
JULY 22, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ THE ACTIVITY, IN THE INSTANT PETITION AND AT THE HEARING IN THIS
MATTER, ALLEGED THAT ALLOWING THE FWPC AND THE SSPC POSITIONS TO REMAIN
IN THE BARGAINING UNIT COULD RESULT IN A "CONFLICT OF INTEREST" AS
DEFINED IN SECTION 1(B) OF THE ORDER. IN THIS REGARD, IT SPECULATED
THAT IT COULD BE NEGOTIATING WITH THE AFSCME ON ISSUES RAISED BY A
COORDINATOR WHO MIGHT ALSO BE A REPRESENTATIVE OF AFSCME, AND THAT A
VIOLATION OF SECTION 19 COULD RESULT. IT HAS BEEN HELD PREVIOUSLY THAT
UNFAIR LABOR PRACTICE ISSUES SUCH AS THIS MAY NOT BE RESOLVED
APPROPRIATELY IN THE CONTEXT OF A REPRESENTATION PROCEEDING. CF.
VETERANS ADMINISTRATION CENTER, TOGUS, MAINE, A/SLMR NO. 317, AT
FOOTNOTE 1.
/2/ THE CERTIFIED UNIT IS DESCRIBED AS: "ALL GENERAL SCHEDULE AND
WAGE GRADE PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE U.S.
COMMISSION ON CIVIL RIGHTS NATIONWIDE EXCLUDING SUPERVISORS, MANAGEMENT
OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, TEMPORARY APPOINTMENTS NOT TO EXCEED 90 DAYS,
CONFIDENTIAL EMPLOYEES AND GUARDS AS DEFINED IN EXECUTIVE ORDER 11491."
/3/ CF. DEPARTMENT OF THE AIR FORCE, ARNOLD ENGINEERING DEVELOPMENT
CENTER, AIR FORCE SYSTEMS COMMAND, ARNOLD AIR FORCE STATION, TENNESSEE,
A/SLMR NO. 135.
7 A/SLMR 868; P. 600; CASE NO. 40-6975(CA); JULY 21, 1977.
JULY 21, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
NAVAL AIR REWORK FACILITY,
MARINE CORPS AIR STATION,
CHERRY POINT, NORTH CAROLINA
A/SLMR NO. 868
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY LOCAL
LODGE 2297, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO, (IAM) ALLEGING THAT THE RESPONDENT VIOLATED SECTION
19(A)(1) AND (2) OF THE ORDER BY THE ACTION OF ITS SUPERVISOR WHO
ALLEGEDLY MADE DEROGATORY REMARKS ABOUT UNIONS IN GENERAL AND THE IAM IN
PARTICULAR, AND TOLD AN EMPLOYEE THAT HIS PROMOTIONAL OPPORTUNITIES WERE
LIMITED BY HIS UNION MEMBERSHIP. THE IAM FURTHER ALLEGED THAT SUCH
ACTIVITIES WERE THE BASIS FOR THE EMPLOYEE BEING DENIED A PROMOTION.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE ALLEGEDLY COERCIVE
STATEMENTS THE EMPLOYEE ATTRIBUTED TO THE SUPERVISOR WERE NOT, IN FACT,
MADE. HE FURTHER FOUND THAT THE IAM HAD NOT ESTABLISHED THAT THE
SELECTION OF ANOTHER EMPLOYEE FOR THE PROMOTION SOUGHT BY THE EMPLOYEE
INVOLVED WAS TAINTED BY CONSIDERATIONS OF THE EMPLOYEE'S UNION
SYMPATHIES AND ACTIVITIES. THE ADMINISTRATIVE LAW JUDGE THEREFORE
RECOMMENDED THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE ASSISTANT
SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE
ADMINISTRATIVE LAW JUDGE. ACCORDINGLY, HE ORDERED THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY.
NAVAL AIR REWORK FACILITY,
MARINE CORPS AIR STATION,
CHERRY POINT, NORTH CAROLINA
RESPONDENT
CASE NO. 40-6975(CA)
AND
LOCAL LODGE 2297,
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO
COMPLAINANT
DECISION AND ORDER
ON APRIL 7, 1977, 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 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 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 THIS CASE, AND NOTING PARTICULARLY THAT
NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE ADMINISTRATIVE LAW JUDGE'S
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 40-6975(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JULY 21, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
SUITE 700-1111 20TH STREET, N.W.
WASHINGTON, D.C. 20036
NAVAL AIR REWORK FACILITY
MARINE CORPS AIR STATION
CHERRY POINT, NORTH CAROLINA
RESPONDENT
CASE NO. 40-6975(CA)
AND
LOCAL LODGE 2297
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, AFL-CIO
COMPLAINANT
JOHN J. CONNERTON
LABOR RELATIONS ADVISOR
OFFICE OF CIVILIAN MANPOWER
MANAGEMENT
DEPARTMENT OF THE NAVY
1735 NORTH LYNN STREET
ROSSLYN, VIRGINIA 22209
FOR THE RESPONDENT
HAL BARRETT
1300 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20036
AND
TERRY A. WETHINGTON
POST OFFICE BOX 716
HAVELOCK, NORTH CAROLINA 28532
FOR THE COMPLAINANT
BEFORE: JOHN H. FENTON
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491. THE COMPLAINT AS
AMENDED ON MAY 12, 1976, ALLEGED THAT THE ACTIVITY VIOLATED SECTIONS
19(A)(1) OF THE ORDER BY DISPARAGING LOCAL LODGE 2297, BY INFORMING
EMPLOYEE JOHN A. MCFAYDEN THAT HIS PROSPECTS FOR A PROMOTION WERE
ADVERSELY AFFECTED BY HIS UNION MEMBERSHIP AND ACTIVITIES AND BY
PROMISING HIM A PROMOTION IF HE REFRAINED FROM SUCH ACTIVITIES. IT
FURTHER ALLEGED THAT THE ACTIVITY DENIED MR. MCFAYDEN A PROMOTION TO
METALS INSPECTOR WG-10 BECAUSE OF SUCH ACTIVITIES.
A HEARING WAS HELD AT NEW BERN, NORTH CAROLINA ON JULY 14, 1976. ALL
PARTIES WERE AFFORDED THE OPPORTUNITY TO BE HEARD, TO EXAMINE AND
CROSS-EXAMINE WITNESSES, TO INTRODUCE EVIDENCE AND TO FILE BRIEFS. UPON
THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS AND
RECOMMENDATIONS.
FINDINGS OF FACT
COMPLAINANT'S ENTIRE CASE RESTS ON THE TESTIMONY OF MR. MCFAYDEN, WHO
WAS AT MATERIAL TIMES A WG-8 METALS INSPECTOR B. HE ATTRIBUTED A NUMBER
OF COERCIVE AND ANTI-UNION REMARKS TO HIS IMMEDIATE SUPERVISOR, MR. FRED
PRICE, AS FOLLOWS:
MCFAYDEN ASSERTED THAT IN JANUARY OF 1975, DURING A HOT ARGUMENT OVER
WHETHER THE UNION DESERVED CREDIT FOR A COST-OF-LIVING INCREASE, PRICE
IN THE PRESENCE OF FOUR OTHER EMPLOYEES, SAID THAT THE UNION WAS "NOT
WORTH A DAMN." PRICE DENIED MAKING ANY SUCH STATEMENT. ANOTHER METALS
INSPECTOR, JACK O'ROURKE, TESTIFIED THAT HE, IN FACT, MADE THAT
STATEMENT, INTENDING TO CONTRAST THE IAM UNFAVORABLY TO THE AFGE. BOTH
HE AND METALS INSPECTOR JAMES DAUGHERTY TESTIFIED CREDIBLY THAT THEY
NEVER HEARD PRICE MAKE REMARKS DISPARAGING OF THE UNION. I FIND THAT
THE STATEMENT WAS MADE BY O'ROURKE.
MCFAYDEN SAID THAT ON OCTOBER 14, 1975, PRICE GAVE HIM TWO COPIES OF
THE READER'S DIGEST AND TOLD HIM TO READ AN ARTICLE IN EACH ONE ABOUT
UNIONS, SAYING THAT HE WOULD LEARN THAT UNION LEADERS WERE OFTEN
COMMUNISTS OR MAFIA MEMBERS. MCFAYDEN CLAIMED THAT PRICE'S
PROSELYTIZING EFFORT CONSUMED ABOUT ONE HOUR. ONE ARTICLE WAS ADMITTED
INTO EVIDENCE, AND HARDLY SUPPORTS MCFAYDEN'S VIEW. IT IS CRITICAL OF
AFL-CIO PRESIDENT GEORGE MEANY'S ALLEGED FAILURE TO SUCCESSFULLY COMBAT
THE SOVIET UNION'S EFFORT TO CAPTURE FREE TRADE UNIONS, BUT IN NO SENSE
DOES IT PORTRAY HIM AS SYMPATHETIC TO SUCH A DESIGN. PRICE DENIED
DISCUSSING THE MATTER. I AM PERSUADED THAT ANY DISCUSSION WHICH MAY
HAVE TAKEN PLACE DID NOT RISE TO THE LEVEL OF BEING COERCIVE OR DISCLOSE
AN ACTIVE UNION-ANIMUS ON PRICE'S PART. HIS RECOLLECTION OF THE ARTICLE
ABOUT GEORGE MEANY'S REACTION TO THE SOVIET DESIGN ON FREE TRADE UNIONS
WAS RATHER ACCURATE. THE VERY LACK OF HARMONY BETWEEN THE ARTICLE IN
EVIDENCE, AND THE DISCUSSION WHICH ALLEGEDLY ATTENDED THE READING OF IT,
SUGGESTS TO ME THAT MCFAYDEN'S TESTIMONY IS NOT FULLY TO BE BELIEVED.
CURIOUSLY, MCFAYDEN, IN AN APPARENT EFFORT TO EXPLAIN HIS LACK OF
SPECIFICITY, TESTIFIED THAT HE "JUST DID NOT PAY MUCH ATTENTION TO
(PRICE) . . . WHEN HE STARTED TALKING LIKE THAT".
IN ORDER TO PUT THE NEXT TWO INCIDENT OF ALLEGED SECTION 19(A)(1)
VIOLATIONS IN PERSPECTIVE, IT IS NECESSARY TO DISCUSS AT THIS POINT
OTHER MATTERS RELEVANT TO THE 19(A)(2) ALLEGATION. THUS, MCFAYDEN
ASSERTED THAT, ON OCTOBER 10, 1975 PRICE TOLD HIM THAT HE WAS ON THE
SELECTION BOARD WHICH WOULD CHOOSE BETWEEN THOMAS MANN AND MCFAYDEN, THE
TWO APPLICANTS FOR THE WG-10 POSITION OF METALS INSPECTOR A, AND THAT
MCFAYDEN NEED NOT WORRY, HE HAD THE POSITION. HE FURTHER ASSERTS THAT
ON NOVEMBER 7, WHEN MANN WAS SELECTED, HE ASKED PRICE WHY HE HAD LIED TO
HIM, AND THAT PRICE EXPLAINED THAT HE INTENDED TO CHOOSE HIM, BUT
CHANGED HIS MIND AFTER AN INCIDENT ON OCTOBER 17, WHEN HE USED THE UNION
CONTRACT, AFTER THREATENING TO GO TO THE UNION, TO VINDICATE HIS RIGHT
TO GIVE BLOOD AT THE ACTIVITY. PRICE ALLEGEDLY SAID THAT NOBODY WAS
GOING TO MAKE HIM DO WHAT HE DID NOT WANT TO TO DO, ESPECIALLY BY GOING
TO THE UNION. LATER IN THE SAME DAY PRICE ALLEGEDLY TOLD HIM THAT, IF
HE WOULD CHANGE HIS ATTITUDE AND FORGET THE UNION, PRICE WOULD SEE THAT
HE GOT HIS RATING IN SIX MONTHS. FINALLY, EVEN LATER THAT DAY, MCFAYDEN
AND HIS STEWARD DISCUSSED WITH PRICE HIS APPLICATION FOR A TRANSFER INTO
THE SHOP FROM WHICH THOMAS MANN WAS PROMOTED. AGAIN, PRICE ALLEGEDLY
TOLD HIM THAT SUCH A TRANSFER WOULD PRECLUDE PROMOTION TO WG-10, BECAUSE
THE VACANCY WAS AT WG-8. THIS, SAID MCFAYDEN, DID NOT MAKE SENSE
BECAUSE MANN HAD JUST BEEN PROMOTED FROM THAT POSITION.
PRICE, OF COURSE, HAD A VERY DIFFERENT RECOLLECTION OF THESE EVENTS.
HE DENIED EVER ASSURING MCFAYDEN THAT HE WOULD RECEIVE THE PROMOTION.
HE DENIED TELLING HIM THAT THE BLOOD DONOR PROGRAM INCIDENT HAD CHANGED
HIS MIND. HE ACKNOWLEDGED THAT SUCH AN INCIDENT DID OCCUR ON A FRIDAY
OF A FOUR-DAY WEEK AT THE BEGINNING OF HUNTING SEASON WHEN MUCH LEAVE
HAD BEEN GRANTED AND MCFAYDEN HAD ASKED FOR ANNUAL LEAVE ON TUESDAY AND
WEDNESDAY, HAD IT APPROVED FOR TUESDAY ONLY AND THEN CALLED IN SICK ON
WEDNESDAY. /1/ ON FRIDAY, ACCORDING TO PRICE, HE WAS ACTING BRANCH
MANAGER, AND THE ACTING SUPERVISOR WHO WAS SUBSTITUTING FOR HIM CAME TO
HIM FOR HELP BECAUSE MCFAYDEN HAD REQUESTED FOUR HOURS OF
(ADMINISTRATIVE) LEAVE FOR A BLOOD DONATION, AND HE WAS NEEDED BECAUSE
THE SHOP'S WORK WAS FALLING BEHIND. PRICE SAID HE TOLD THE SUPERVISOR
TO SUGGEST THAT MCFAYDEN WORK AND GIVE BLOOD IN HIS NEIGHBORHOOD OR AT
SOME OTHER TIME, BUT APPROVED THE LEAVE WHEN MCFAYDEN PRESENTED A COPY
OF THE COLLECTIVE BARGAINING AGREEMENT AS PROOF OF HIS RIGHT TO
PARTICIPATE IN THE BLOOD DONOR PROGRAM. (THIS RIGHT EXISTED APART FROM
THE CONTRACT, IN AGENCY REGULATIONS). PRICE DENIED THAT HE WAS
IRRITATED BY THIS PERSISTENCE ON MCFAYDEN'S PART IN EXERCISING HIS
CONTRACT RIGHTS, BUT ADMITS HE FELT "BAD" ABOUT HAVING EMPLOYEES WHO
WERE NOT MORE INTERESTED IN THE JOB THAN THAT.
I CONCLUDE, IN ALL THE CIRCUMSTANCES, THAT THE VERY SERIOUSLY
COERCIVE STATEMENTS MCFAYDEN ATTRIBUTES TO PRICE WERE NOT IN FACT MADE.
IN TERMS OF PERSONAL DEMEANOR I FOUND NO BASIS FOR CREDITING ONE OVER
THE OTHER. I AM PERSUADED, HOWEVER, FROM THE CASE VIEWED IN ITS
ENTIRETY, THAT MCFAYDEN'S ACCOUNT IS, AT A MINIMUM, VERY LARGELY
OVERSTATED. I HAVE NOTED ALREADY THAT HIS RENDITION OF THE CONVERSATION
ATTENDING THE READER'S DIGEST BEARS LITTLE RELATIONSHIP TO THE CONTENT
OF THE ARTICLE. BECAUSE OF THE LACK OF CORROBORATION FOR HIS VERSION OF
THE JANUARY 1975 STATEMENT, AND THE CREDIBLE TESTIMONY OF O'ROURKE, I
FOUND THAT PRICE DID NOT MAKE THE STATEMENT ATTRIBUTED TO HIM. HAD
PRICE TOLD HIM ON NOVEMBER 7 THAT HE WOULD HAVE CHOSEN HIM FOR THE
PROMOTION HAD HE NOT "GONE OVER HIS HEAD" TO THE UNION ABOUT THE BLOOD
INCIDENT, AND LATER THAT DAY PROMISED HIM A PROMOTION IF HE WOULD FORGET
THE UNION, IT STRIKES ME AS STRANGE, INDEED, THAT NOTHING WAS SAID ABOUT
IT AT THE MEETING WITH PRICE LATER THAT DAY. MCFAYDEN WAS CLEARLY
ANGERED BY THE PROMOTION OF MANN. I BELIEVE HE THOUGHT HE WOULD GET IT,
AND THOUGHT PRICE HAD INDICATED HE WOULD. HE THEN BROUGHT HIS STEWARD
TO THE MEETING TO DISCUSS HIS REQUEST FOR A TRANSFER. PRICE CLAIMS THAT
HE TRIED TO DISSUADE HIM, POINTING OUT THAT THE OTHER SHOP OFFERED LESS
PROMOTIONAL OPPORTUNITY. MCFAYDEN'S TESTIMONY INDICATES THAT HE HAD THE
COURAGE TO CALL PRICE A LIAR, AND TO DEMAND A TRANSFER, BUT NOT TO
CONFRONT PRICE WITH THESE STRONGLY ANTI-UNION STATEMENTS IN THE PRESENCE
OF HIS UNION STEWARD. I FIND IT DIFFICULT TO BELIEVE THAT HE WOULD NOT
HAVE MADE AN ISSUE OF SUCH ALLEGED ANTI-UNION SENTIMENT IN ANY
DISCUSSION OF HIS DESIRE FOR A TRANSFER. IN REACHING THIS CONCLUSION, I
ALSO CONSIDERED THE FACT THAT MCFAYDEN WAS VERY SURE OF THE ACCURACY OF
HIS RECOLLECTION, EVEN WHEN DEMONSTRABLY IN ERROR. THUS, HE EXECUTED A
STATEMENT ON NOVEMBER 10, 1975, DESCRIBING HIS CONVERSATIONS WITH PRICE
ON OCTOBER 10 AND 14. HE WAS SURE OF THE ACCURACY OF THOSE DATES, WHICH
HE HAD ENTERED INTO A DIARY, EVEN THOUGH OFFICIAL LEAVE RECORDS SHOW
THAT HE AND PRICE COULD NOT HAVE HAD SUCH CONVERSATIONS ON THOSE DATES.
/2/ IN SHORT, I FIND MCFAYDEN WAS AN UNRELIABLE WITNESS, AND I DO NOT
CREDIT HIS STATEMENT THAT PRICE SAID HE WOULD HAVE BEEN SELECTED FOR
PROMOTION HAD HE NOT "GONE OVER HIS HEAD", NOR DO I CREDIT HIS STATEMENT
THAT PRICE ASSURED HIM ON AN EARLIER OCCASION THAT HE WOULD BE PROMOTED.
HAVING FOUND NO EVIDENCE IN SUPPORT OF THE SECTION 19(A)(1)
VIOLATIONS ALLEGED, AND NO EVIDENCE OF UNION ANIMUS, IT FOLLOWS THAT
COMPLAINANT HAS NOT ESTABLISHED THAT THE SELECTION OF MANN FOR PROMOTION
WAS TAINTED BY CONSIDERATIONS OF MCFAYDEN'S UNION SYMPATHIES AND
ACTIVITIES. MCFAYDEN AND MANN WERE THE TWO HIGHLY QUALIFIED NAMES ON
THE REGISTER, WITH SCORES OF 90 AND 88 RESPECTIVELY. ALL MEMBERS OF THE
SELECTION PANEL (WHICH INCLUDED PRICE) TESTIFIED THAT THEY UNANIMOUSLY
DECIDED THAT MANN WAS THE BETTER QUALIFIED CANDIDATE, AND THAT THEIR
DECISION WAS NOT INFLUENCED BY UNION CONSIDERATIONS. THE OTHER TWO
PANELISTS FURTHER TESTIFIED THAT PRICE MADE NO EFFORT TO INFLUENCE THEM.
MANN HAD MORE EXPERIENCE, AND, IN MCFAYDEN'S JUDGMENT, WAS "JUST AS
GOOD A MAN." ON SUCH A RECORD I MUST CONCLUDE THAT COMPLAINANT CLEARLY
HAS NOT CARRIED THE BURDEN OF ESTABLISHING, BY A PREPONDERANCE OF
EVIDENCE, THAT HE WAS NOT SELECTED FROM PROMOTION FOR DISCRIMINATORY
REASONS.
CONCLUSIONS OF LAW AND RECOMMENDATION
HAVING FOUND NO PERSUASIVE EVIDENCE THAT THE ALLEGED SECTION 19(A)(1)
VIOLATIONS OCCURRED, OR THAT THE NONSELECTION OF MCFAYDEN WAS INFLUENCED
BY THE FACT OF HIS UNION MEMBERSHIP, ATTITUDE, OR ACTIVITIES, I HEREBY
RECOMMEND TO THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT
RELATIONS THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
JOHN H. FENTON
ADMINISTRATIVE LAW JUDGE
DATED: APRIL 7, 1977
WASHINGTON, D.C.
/1/ PRICE'S TESTIMONY THAT HE HAD COUNSELLED MCFAYDEN ON FIVE OR SIX
OCCASIONS BECAUSE OF TARDINESS AND USE OF UNSCHEDULED LEAVE WAS DENIED.
/2/ HE WAS UNABLE TO PRODUCE THE DIARY, ALTHOUGH ARRANGEMENTS WERE
AGREED UPON TO PERMIT HIM TO MAKE A SEARCH AND TO SUBMIT IT.
7 A/SLMR 867; P. 595; CASE NO. 22-07591(CO); JULY 21, 1977.
JULY 21, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO
A/SLMR NO. 867
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
DEPARTMENT OF THE NAVY, NORFOLK NAVAL SHIPYARD ALLEGING THAT THE
RESPONDENT, TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL,
AFL-CIO, VIOLATED SECTION 19(B)(4) OF THE ORDER BY PICKETING THE NORFOLK
NAVAL SHIPYARD ON NOVEMBER 8 AND NOVEMBER 9, 1976. THE RESPONDENT
ADMITTED THAT IT HAD ENGAGED IN THE PICKETING AS ALLEGED, BUT CONTENDED
THAT THE PICKETING WAS INFORMATIONAL IN NATURE AND, AS SUCH, WAS NOT
PROSCRIBED BY SECTION 19(B)(4) OF THE ORDER. IT ALSO CONTENDED THAT THE
EVIDENCE AS TO THE CRUCIAL AND SENSITIVE NATURE OF THE NORFOLK NAVAL
SHIPYARD WAS SPECULATIVE AND DID NOT SUPPORT A BAN ON ALL PEACEFUL
INFORMATIONAL PICKETING.
IN HIS RECOMMENDED DECISION AND ORDER, THE ADMINISTRATIVE LAW JUDGE
FOUND THAT THE PICKETING ENGAGED IN BY THE RESPONDENT WAS INFORMATIONAL
AND PEACEFUL AND DID NOT INTERFERE WITH THE OPERATION OF THE NORFOLK
NAVAL SHIPYARD. HE ALSO FOUND THAT THE RECORD CONTAINED INSUFFICIENT
EVIDENCE TO SUPPORT A FINDING THAT THE PICKETING REASONABLY THREATENED
TO INTERFERE WITH THE OPERATION OF THE NORFOLK NAVAL SHIPYARD. THUS, HE
CONCLUDED THAT THE RECORD FAILED TO ESTABLISH THAT THE RESPONDENT'S
PICKETING OF THE NORFOLK NAVAL SHIPYARD VIOLATED SECTION 19(B)(4) OF THE
ORDER.
UNDER THE PARTICULAR CIRCUMSTANCES OF THE INSTANT CASE, THE ASSISTANT
SECRETARY CONCURRED IN THE FINDINGS OF THE ADMINISTRATIVE LAW JUDGE WITH
RESPECT TO THE NATURE AND EFFECT OF THE PICKETING ON THE COMPLAINANT'S
OPERATION. WITH REGARD TO THE ADMINISTRATIVE LAW JUDGE'S FINDING THAT
THE PICKETING WAS INFORMATIONAL, THE ASSISTANT SECRETARY STATED THAT, IN
HIS VIEW, PERMISSIBLE INFORMATIONAL PICKETING IN FEDERAL SECTOR
LABOR-MANAGEMENT DISPUTES IS THAT WHICH IS DIRECTED AT THE GENERAL
PUBLIC, INCLUDING ORGANIZED LABOR GROUPS, AND WHICH DOES NOT INTERFERE
OR REASONABLY THREATEN TO INTERFERE WITH THE OPERATION OF THE AFFECTED
GOVERNMENT AGENCY. HE ALSO FOUND THAT THE EVIDENCE FAILED TO ESTABLISH
THAT THE COMPLAINANT'S FUNCTIONS WERE SO CRUCIAL AND SENSITIVE TO
JUSTIFY AN ABSOLUTE BAN AGAINST ALL LABOR-MANAGEMENT DISPUTE PICKETING
AT THE NORFOLK NAVAL SHIPYARD. THUS, IN ACCORDANCE WITH THE GUIDELINES
SET FORTH BY THE FEDERAL LABOR RELATIONS COUNCIL IN FLRC NO. 76P-4, THE
ASSISTANT SECRETARY CONCLUDED THAT THE RESPONDENT'S PICKETING FELL
WITHIN THE PERMISSIBLE LIMITS UNDER SECTION 19(B)(4) OF THE ORDER.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY.
TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO
RESPONDENT
CASE NO. 22-07591(CO)
AND
DEPARTMENT OF THE NAVY,
NORFOLK NAVAL SHIPYARD
COMPLAINANT
DECISION AND ORDER
ON JANUARY 12, 1977, ADMINISTRATIVE LAW JUDGE SAMUEL A. CHAITOVITZ
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 AND
THE PETITIONER /1/ FILED EXCEPTIONS AND SUPPORTING BRIEFS WITH RESPECT
TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER, AND
THE RESPONDENT FILED AN ANSWERING BRIEF IN RESPONSE TO SAID EXCEPTIONS
AND SUPPORTING BRIEFS.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE
ADMINISTRATIVE LAW JUDGE 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 AND SUPPORTING
BRIEFS FILED BY THE COMPLAINANT AND THE PETITIONER AND THE ANSWERING
BRIEF FILED BY THE RESPONDENT, I HEREBY ADOPT THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATION, EXCEPT AS MODIFIED
HEREIN.
THE INSTANT COMPLAINT, FILED BY THE DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD (COMPLAINANT) ALLEGED THAT THE TIDEWATER VIRGINIA FEDERAL
EMPLOYEES METAL TRADES COUNCIL, AFL-CIO (RESPONDENT) VIOLATED SECTION
19(B)(4) OF EXECUTIVE ORDER 11491, AS AMENDED, BY IMPROPERLY SPONSORING
AND DIRECTING PICKETING OF THE COMPLAINANT AT ACCESS GATES TO THE
NORFOLK NAVAL SHIPYARD.
THE FACTS OF THE INSTANT CASE, WHICH ARE NOT IN DISPUTE, ARE SET
FORTH IN DETAIL IN THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION
AND ORDER, AND I SHALL REPEAT THEM ONLY TO THE EXTENT NECESSARY.
THE RECORD REVEALS THAT THE RESPONDENT PEACEFULLY PICKETED THE
COMPLAINANT /2/ ON NOVEMBER 8, 1976, FROM APPROXIMATELY 3:30 P.M. TO
APPROXIMATELY 4:30 P.M. AT EIGHT ACCESS GATES, AND ON NOVEMBER 9, 1976,
FROM APPROXIMATELY 6:45 A.M. TO APPROXIMATELY 7:35 A.M. AT FOUR ACCESS
GATES /3/ FOR THE PURPOSE OF INFORMING ITS MEMBERS OF THE PROBLEMS IT
WAS HAVING WITH NEGOTIATIONS FOR A NEW COLLECTIVE BARGAINING AGREEMENT.
THE RECORD ALSO REVEALS THAT THE PICKETING AT EACH GATE VARIED AT TIME
FROM 2 TO 18 PICKETS, AND THAT THE PICKET SIGNS RELATED TO THE EXISTING
LABOR-MANAGEMENT DISPUTE. /4/ THE RECORD EVIDENCE ESTABLISHES THAT THE
PICKETING WAS PEACEFUL AND CAUSED NO INTERFERENCE WITH THE OPERATION OF
THE COMPLAINANT OR DELIVERIES.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE RECORD CLEARLY
ESTABLISHED THAT THE PICKETING CONDUCTED BY THE RESPONDENT WAS
"INFORMATIONAL" AND DID NOT INTERFERE WITH THE OPERATION OF THE
SHIPYARD. FURTHER, HE FOUND THAT THE RECORD CONTAINED INSUFFICIENT
EVIDENCE TO SUPPORT A FINDING THAT THE PICKETING REASONABLY THREATENED
TO INTERFERE WITH THE OPERATION OF THE SHIPYARD. THUS, APPLYING THE
STANDARDS AND CRITERIA AS SET FORTH BY THE FEDERAL LABOR RELATIONS
COUNCIL (COUNCIL) IN ITS STATEMENT ON MAJOR POLICY ISSUE, FLRC NO.
76P-4, HE CONCLUDED THAT THE RESPONDENT'S PICKETING WAS NOT VIOLATIVE OF
SECTION 19(B)(4) OF THE ORDER.
AT THE HEARING, THE RESPONDENT ADMITTED THAT ITS OFFICERS AND AGENTS
HAD ENGAGED IN SAID PICKETING, AND THAT IT WAS RESPONSIBLE FOR SUCH
PICKETING. IN THIS REGARD, THE COMPLAINANT CONTENDS IN ITS EXCEPTIONS
THAT SUCH PICKETING WAS NOT THE CONSTITUTIONALLY PERMISSIBLE TYPE OF
PICKETING KNOWN AS "INFORMATIONAL" PICKETING AS THAT TERM IS CUSTOMARILY
DEFINED IN RELEVANT DECISIONS OF THE COURTS AND THE NATIONAL LABOR
RELATIONS BOARD. IN ADDITION, THE COMPLAINANT AND THE PETITIONER, IN
THEIR EXCEPTIONS, CONTEND THAT THE ADMINISTRATIVE LAW JUDGE FAILED TO
CONSIDER, IN HIS RECOMMENDED DECISION AND ORDER, THE ISSUE OF WHETHER AN
ABSOLUTE BAN ON ALL LABOR-MANAGEMENT DISPUTE PICKETING AT THE NORFOLK
NAVAL SHIPYARD IS WARRANTED BASED ON THE CRUCIAL AND SENSITIVE NATURE OF
THE COMPLAINANT'S OPERATION AND MISSION.
WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S FINDING THAT THE
PICKETING IN QUESTION WAS "INFORMATIONAL," IN MY VIEW, PERMISSIBLE
INFORMATIONAL PICKETING IN FEDERAL SECTOR LABOR-MANAGEMENT DISPUTES IS
THAT WHICH IS DIRECTED AT THE GENERAL PUBLIC, INCLUDING MEMBERS OF
ORGANIZED LABOR GROUPS, AND WHICH DOES NOT INTERFERE OR REASONABLY
THREATEN TO INTERFERE WITH THE OPERATION OF THE AFFECTED GOVERNMENT
AGENCY. UNDER THE PARTICULAR CIRCUMSTANCES OF THE INSTANT CASE AND IN
ACCORDANCE WITH THE GUIDELINES SET FORTH IN THE COUNCIL'S STATEMENT ON
MAJOR POLICY ISSUE, FLRC NO. 76P-4, I FIND THAT THE RESPONDENT'S
INFORMATIONAL PICKETING FALLS WITHIN THE COUNCIL'S DEFINITION OF
"PERMISSIBLE PICKETING" UNDER SECTION 19(B)(4) OF THE ORDER. THUS, THE
EVIDENCE ESTABLISHES THAT THE NUMBER OF PICKETS WAS NOT EXCESSIVE; THE
PICKETING WAS FOR THE PURPOSE OF INFORMING THE RESPONDENT'S MEMBERS OF
ITS LABOR-MANAGEMENT DISPUTE WITH THE COMPLAINANT; THE CONDUCT OF THE
PICKETS WAS PEACEFUL; AND THE PICKETING WAS LIMITED TO RELATIVELY SHORT
PERIODS ON EACH DAY IT OCCURRED AND DID NOT INTERFERE WITH THE OPERATION
OF THE COMPLAINANT OR DELIVERIES. NOR DO I FIND IN THE RECORD
SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT THE PICKETING REASONABLY
THREATENED TO INTERFERE WITH THE OPERATION OF THE COMPLAINANT OR
DELIVERIES. FURTHER, I FIND THAT THE EVIDENCE FAILS TO ESTABLISH THAT
THE COMPLAINANT'S FUNCTIONS ARE SO CRUCIAL AND SENSITIVE THAT PICKETING
WOULD PER SE BE SO INJURIOUS AND DISRUPTIVE AS TO JUSTIFY AN ABSOLUTE
BAN AGAINST ALL LABOR-MANAGEMENT DISPUTE PICKETING AT THE NORFOLK NAVAL
SHIPYARD.
ACCORDINGLY, I SHALL ORDER THAT THE COMPLAINT HEREIN BE DISMISSED IN
ITS ENTIRETY.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 22-07591(CO) BE,
AND HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JULY 21, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR.
/2/ THE EVIDENCE ESTABLISHES THAT THE MISSION OF THE COMPLAINANT IS
TO PROVIDE LOGISTIC SUPPORT FOR ASSIGNED SHIPS AND SERVICE CRAFT; TO
PERFORM AUTHORIZED WORK IN CONNECTION WITH CONSTRUCTION, CONVERSION,
OVERHAUL, REPAIR, ALTERATION, DRYDOCKING, AND OUTFITTING OF SHIPS AND
CRAFT, AS ASSIGNED; TO PERFORM MANUFACTURING RESEARCH, DEVELOPMENT, AND
TEST WORK, AS ASSIGNED; AND TO PROVIDE SERVICES AND MATERIAL TO OTHER
ACTIVITIES AND UNITS, AS DIRECTED.
/3/ THE EVIDENCE ESTABLISHES THAT GATE 15 (GREEN STREET), WHICH WAS
PICKETED BOTH DAYS, IS DESIGNATED AS A "PASS GATE" WHERE NONEMPLOYEES
AND COMMERCIAL TRAFFIC OBTAIN PASSES TO ENTER THE SHIPYARD. THE
COMPLAINANT'S EMPLOYEES ALSO USE GATE 15 AND THE SEVEN OTHER GATES
INVOLVED HEREIN TO ENTER AND EXIT THE SHIPYARD.
/4/ THE 12 LEGENDS WHICH WERE DISPLAYED ON THE PICKET SIGNS ARE SET
FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION
AND ORDER.
U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGE
SUITE 700-1111 20TH STREET, N.W.
WASHINGTON, D.C. 20036
IN THE MATTER OF
TIDEWATER VIRGINIA
FEDERAL EMPLOYEES METAL
TRADES COUNCIL, AFL-CIO
RESPONDENT
CASE NO. 22-07591(CO)
AND
DEPARTMENT OF THE NAVY
NORFOLK NAVAL SHIPYARD
COMPLAINANT
AND
ASSISTANT REGIONAL ADMINISTRATOR
LABOR MANAGEMENT SERVICES ADMINISTRATION
PHILADELPHIA REGION
U.S. DEPARTMENT OF LABOR
PETITIONER
ROBERT F. HALEY, III, ESQUIRE
JOANNOU AND HALEY
SUITE 506
PROFESSIONAL BUILDING
PORTSMOUTH, VIRGINIA 23704
FOR RESPONDENT
STUART M. FOSS, ESQUIRE
DEPARTMENT OF NAVY
1735 N. LYNN STREET
ARLINGTON, VIRGINIA 22209
FOR COMPLAINANT
MARSHALL H. HARRIS, REGIONAL SOLICITOR
MICHAEL F. DAUGHERTY, ESQUIRE
REGION III
3535 MARKET STREET, ROOM 14480
GATEWAY BUILDING
PHILADELPHIA, PENNSYLVANIA 19104
FOR PETITIONER
BEFORE: SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
THIS MATTER COMES BEFORE ME UPON A NOTICE OF HEARING ON COMPLAINT
ISSUED ON NOVEMBER 17, 1976 BY THE REGIONAL ADMINISTRATOR FOR THE
LABOR-MANAGEMENT SERVICES ADMINISTRATION. THE COMPLAINT FILED BY THE
DEPARTMENT OF THE NAVY, NORFOLK NAVAL SHIPYARD, HEREINAFTER CALLED THE
ACTIVITY, ON NOVEMBER 10, 1976 ALLEGES THAT THE TIDEWATER VIRGINIA
FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, (HEREINAFTER CALLED THE
RESPONDENT OR THE UNION) ILLEGALLY PICKETED THE AVTIVITY'S SHIPYARD IN
NORFOLK VIRGINIA IN VIOLATION OF SECTION 19(B)(4) OF EXECUTIVE ORDER
11491, AS AMENDED, HEREINAFTER CALLED THE ORDER.
A HEARING WAS HELD BEFORE THE UNDERSIGNED IN NORFOLK VIRGINIA. 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. ALL PARTIES HAD AN
OPPORTUNITY TO ARGUE ORALLY AND SUBMIT BRIEFS. THE BRIEFS HAVE BEEN
DULY CONSIDERED.
UPON THE BASIS OF THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION
OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF
FACT, CONCLUSION OF LAW AND RECOMMENDATION.
FINDINGS OF FACT
1. THE ACTIVITY IS THE LARGEST OF EIGHT SHIPYARDS OPERATED BY THE
NAVAL SEA SYSTEM COMMAND AND HAS AS ITS PRINCIPAL MISSION THE
OVERHAULING, REPAIRING, ALTERING AND OUTFITTING NUCLEAR AND NON-NUCLEAR
VESSELS OF THE NAVY'S ATLANTIC FLEET, INCLUDING AIRCRAFT CARRIERS,
MISSILE CRUISERS, DESTROYERS AND SUBMARINES. IN PERFORMING ITS DUTIES
THE ACTIVITY EMPLOYEES ABOUT 10,000 CIVILIAN WORKERS IN VARIOUS TRADES,
SKILLS AND CRAFTS AND ALSO UTILIZES PRIVATE SECTOR CONTRACTORS AND
EMPLOYEES BORROWED FROM OTHER NAVAL SHIPYARDS. GOODS AND MATERIALS ARE
DELIVERED TO THE ACTIVITY BY BOTH ITS OWN EQUIPMENT AND BY PRIVATE
TRUCKING FIRMS. /1/
2. THE VAST MAJORITY OF THE ACTIVITY'S CIVILIAN EMPLOYEES HAVE BEEN
ORGANIZED FOR COLLECTIVE BARGAINING PURPOSES INTO A NUMBER OF SEPARATE
UNITS REPRESENTED BY ABOUT SIX DIFFERENT LABOR ORGANIZATIONS.
3. THE RESPONDENT IS A LABOR ORGANIZATION RECOGNIZED BY THE NORFOLK
NAVAL SHIPYARD, PORTSMOUTH, VIRGINIA, AS THE EXCLUSIVE COLLECTIVE
BARGAINING REPRESENTATIVE FOR THE WAGE GRADE EMPLOYEES IN A PRODUCTION
UNIT AND FOR THE PLANNERS, ESTIMATORS, PROGRESSMEN AND SCHEDULERS (PEPS)
UNIT.
4. IN AUGUST OF 1975 THE ACTIVITY AND UNION STARTED NEGOTIATIONS FOR
A NEW COLLECTIVE BARGAINING AGREEMENT AMONG THE WAGE GRADE PRODUCTION
UNIT. /2/
5. NEGOTIATIONS OVER THE PRODUCTION UNIT COLLECTIVE BARGAINING
AGREEMENT CONTINUED FOR ABOUT 15 MONTHS. /3/
6. THE UNION SPONSORED PARTICIPATION IN AND WAS RESPONSIBLE FOR
PICKETING AT OR NEAR THE NORFOLK NAVAL SHIPYARD, PORTSMOUTH, VIRGINIA,
ON NOVEMBER 8, 1976, AND ON NOVEMBER 9, 1976.
7. THE PICKETING OCCURRED IN THE CONTEXT OF A LABOR-MANAGEMENT
DISPUTE, CONCERNING THE NEGOTIATION OF THE COLLECTIVE BARGAINING
AGREEMENT.
8. FROM APPROXIMATELY 3:30 P.M. UNTIL APPROXIMATELY 4:30 P.M. ON
NOVEMBER 8, 1976, PICKETS APPEARED OUTSIDE THE NORFOLK NAVAL SHIPYARD,
PORTSMOUTH, VIRGINIA, AT SOME EIGHT GATES.
9. FROM APPROXIMATELY 6:45 A.M. UNTIL APPROXIMATELY 7:35 A.M. ON
NOVEMBER 9, 1976, PICKETS APPEARED OUTSIDE THE NORFOLK NAVAL SHIPYARD,
PORTSMOUTH, VIRGINIA, AT SOME FOUR GATES.
10. THE PICKET SIGNS RELATED TO THE LABOR-MANAGEMENT DISPUTE AND WAS
FOR THE PURPOSE OF INFORMING THE PUBLIC AND UNION MEMBERS OF THE
PROBLEMS THAT THE UNION CONTENDED IT WAS HAVING WITH THE NEGOTIATIONS
FOR A NEW CONTRACT.
11. THE PICKETING AT EACH OF THE GATES WAS COMPOSED VARIOUSLY OF
ABOUT 4 TO 15 PICKETS.
12. THE PICKET SIGNS BORE THE FOLLOWING LEGENDS:
"SHIPYARD UNFAIR, METAL TRADES"
"WE WANT A CONTRACT, NOT A BUNCH OF BULL S . . . . . MTC, AFL-CIO"
"17 LOCAL UNIONS WANT A CONTRACT, METAL TRADES"
"NNSY NOT BARGAINING IN GOOD FAITH, MTC, AFL-CIO"
"97 MEETINGS, STILL NO CONTRACT, METAL TRADES COUNCIL, AFL-CIO"
"12 MONTHS, NO CONTRACT, METAL TRADES COUNCIL, AFL-CIO"
"TEN THOUSAND DOLLARS AND STILL NO. . . CONTRACT, MTC, AFL-CIO"
"WE WANT A CONTRACT, P.E.P.S. UNIT, METAL TRADES"
"M.T.C. WANTS A CONTRACT"
"WE WANT A CONTRACT, NOT CHEAP TALK. . . , MTC, AFL-CIO"
"WE WANT FAIR NEGOTIATIONS, MTC"
"SHIPYARD NEED'S NEW CHIEF SPOKESPERSON"
13. THE PICKETING WAS PEACEFUL AT ALL TIMES AND CAUSED NO
INTERFERENCE WITH OR DISRUPTION OF THE OPERATIONS AND WORK GOING ON AT
THE NORFOLK NAVAL SHIPYARD. IN ADDITION, THE PICKETING BLOCKED NONE OF
THE ENTRANCE/EXIT GATES AND CAUSED NO DISRUPTION OF INGRESS AND EGRESS
OF FEDERAL WORKERS, PRIVATE COMMERCIAL CONTRACT WORKERS OR TRUCK DRIVERS
OR THEIR VEHICLES.
14. ALL PICKETING WAS CONDUCTED OFF OF GOVERNMENT PROPERTY AND BY
PICKETS WHO ENGAGED IN THE PICKETING ON THEIR OWN TIME.
15. THE PRIVATE SECTOR CONTRACTORS ROUTINELY COME AND GO EVERY DAY
AT THIS SHIPYARD.
16. THE PRIVATE SECTOR TRUCKING FIRMS AND THEIR EMPLOYEES HAVE
TRUCKS AND WORKERS COMING AND GOING EVERY DAY INTO AND OUT OF THE
NORFOLK NAVAL SHIPYARD.
CONCLUSIONS OF LAW
SECTION 19(B)(4) OF THE ORDER WAS RATHER FULLY DISCUSSED AND ANALYZED
IN THE RESPECTIVE DECISIONS ISSUED IN INTERNAL REVENUE SERVICE V.
NATIONAL TREASURY EMPLOYEES UNION, CASE NO. 22-5976(CO), JULY 7, 1975;
A/SLMR NO. 536, JULY 29, 1975; FLRC NO. 75A-96, MARCH 3, 1976.
DESPITE QUESTIONS RAISED AS TO HOW BROADLY SECTION 19(B)(4) OF THE
ORDER SHOULD BE INTERPRETED AND AS TO ITS CONSTITUTIONALITY, THE
ASSISTANT SECRETARY AND THE FEDERAL LABOR RELATIONS COUNCIL WERE QUITE
CLEAR AND EXPLICIT THAT THE PROHIBITIONS CONTAINED IN SECTION 19(B)(4)
OF THE ORDER ARE ABSOLUTE AND PROHIBIT ALL PICKETING BY A LABOR
ORGANIZATION IN A LABOR-MANAGEMENT DISPUTE.
ON SEPTEMBER 22, 1976 JUDGE GEARHARD GESELL OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ISSUED A DECISION IN THE IRS
CASE, SUPRA WHEREIN HE VACATED THE ORDER OF THE ASSISTANT SECRETARY AND
ON PRECISE FACTS OF THAT CASE WAS TOO BROAD AND VIOLATIVE OF THE FIRST
AMENDMENTS. JUDGE GESELL DECLINED TO DECLARE SECTION 19(B)(4) OF THE
ORDER UNCONSTITUTIONAL POINTING OUT, INTER ALIA, THAT EVEN SOME PEACEFUL
INFORMATIONAL PICKETING COULD BE APPROPRIATELY TOTALLY BANNED WHERE THE
GOVERNMENTAL FUNCTION INVOLVED WAS SO SENSITIVE THAT ANY PICKETING WOULD
BE SO INJURIOUS AND DISRUPTIVE AS TO JUSTIFY SUCH AN ABSOLUTE BAN.
NATIONAL TREASURY EMPLOYEES UNION V. PAUL J. FASSER, JR., ET AL, CIVIL
ACTION NO. 76-408 (D.D.C. 1976). JUDGE GESELL WENT FURTHER AND
SUGGESTED THAT THE FEDERAL LABOR RELATIONS COUNCIL DEVELOP FACTS AS TO
THE PRECISE GOVERNMENT INTEREST TO BE PROTECTED AND AS TO THE POSSIBLE
DIFFERENTIATION BETWEEN DIFFERENT TYPES OF PICKETING.
THE FEDERAL LABOR RELATIONS COUNCIL (HEREINAFTER CALLED THE COUNCIL)
IN ACCORDANCE WITH THE SUGGESTION OF JUDGE GESELL, ISSUED A STATEMENT ON
MAJOR POLICY ISSUE, FLRC NO. 76P-4, (JANUARY 5, 1977) WHEREIN IT SET
FORTH ITS POSITION WITH RESPECT TO THE INTERPRETATION AND APPLICATION OF
SECTION 19(B)(4) OF THE ORDER. THE COUNCIL DECIDED NOT TO USE RULE
MAKING BUT TO "ACCOMPLISH THE DELINEATION OF PICKETING WHICH IS
PERMISSIBLE OR NONPERMISSIBLE UNDER SECTION 19(B)(4) ON A CASE-BY-CASE
BASIS, UTILIZING THE ADJUDICATORY PROCEDURES ESTABLISHED IN SECTIONS
4(C)(1) AND (6) OF THE ORDER." THE COUNCIL CONCLUDED THAT "IF PICKETING
OF AN AGENCY BY A LABOR ORGANIZATION IN A LABOR-MANAGEMENT DISPUTE DOES
NOT ACTUALLY INTERFERE OR REASONABLY THREATEN TO INTERFERE WITH THE
OPERATION OF THE AFFECTED GOVERNMENT AGENCY THAT PICKETING WILL BE FOUND
PERMISSIBLE UNDER SECTION 19(B)(4) OF THE ORDER." THE COUNCIL STATED
FURTHER THAT ITS STANDARDS IN REVIEWING DECISIONS OF THE ASSISTANT
SECRETARY, AS TO WHETHER SECTION 19(B)(4) HAD BEEN VIOLATED IN SPECIFIC
CASES, IS "WHETHER, UNDER THE PARTICULAR CIRCUMSTANCES OF THE CASE, THE
PICKETING INTERFERED WITH OR REASONABLY THREATENED TO INTERFERE WITH THE
OPERATION OF THE GOVERNMENT AGENCY INVOLVED, IN VIOLATION OF SECTION
19(B)(4) OF THE ORDER."
THE RECORD IN THE INSTANT CASE CLEARLY ESTABLISHES THAT THE PICKETING
IN QUESTION WAS INFORMATIONAL AND PEACEFUL AND DID NOT IN ANY WAY
INTERFERE WITH THE OPERATIONS OF THE NORFOLK NAVAL SHIPYARD. THE RECORD
CONTAINS INSUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT THE PICKETING
"REASONABLY THREATENED TO INTERFERE WITH THE OPERATION" OF THE NORFOLK
NAVAL SHIPYARD.
THUS, APPLYING THE STANDARDS AND CRITERIA AS SET FORTH BY THE
COUNCIL, IN ITS RECENT STATEMENT ON MAJOR POLICY ISSUE, FLRC NO. 76P-4,
I AM CONSTRAINED TO CONCLUDE THAT THE RECORD IN THE SUBJECT CASE FAILS
TO ESTABLISH THAT THE UNION'S PICKETING OF THE NORFOLK NAVAL SHIPYARD ON
NOVEMBER 8 AND 9, 1976 VIOLATED SECTION 19(B)(4) OF THE ORDER.
RECOMMENDED ORDER
IT IS RECOMMENDED THAT THE ASSISTANT SECRETARY DISMISS THE SUBJECT
COMPLAINT.
SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
DATED: JANUARY 12, 1977
WASHINGTON, D.C.
/1/ MANY OF THE PRIVATE SECTOR CONTRACTORS AND TRUCKING FIRMS ARE
UNIONIZED.
/2/ AS PART OF THE BARGAINING GROUND RULES THE PARTIES AGREED THAT
THE ONLY RELEASE OF OFFICIAL INFORMATION REGARDING THE PROGRESS OF
NEGOTIATIONS WOULD BE THROUGH RESPONDENT'S NEWSLETTER.
/3/ APPARENTLY THERE WERE ABOUT 97 NEGOTIATION MEETINGS PRIOR TO
NOVEMBER 8, 1976.
7 A/SLMR 866; P. 582; CASE NO. 20-5582(CA); JULY 21, 1977.
JULY 21, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
PENNSYLVANIA AIR NATIONAL GUARD
A/SLMR NO. 866
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
ASSOCIATION OF CIVILIAN TECHNICIANS (COMPLAINANT) ALLEGING THAT THE
RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER. IN THIS
REGARD, THE COMPLAINANT ALLEGED THAT BY THE ISSUANCE ON FEBRUARY 15,
1976, OF BASE REGULATION 35-1, ENTITLED "DRESS AND PERSONAL APPEARANCE
OF ANG PERSONNEL," AND A DIRECTIVE ENTITLED "TECHNICIAN WORK DAY," THE
RESPONDENT UNILATERALLY CHANGED WORKING TERMS AND CONDITIONS IN
DEROGATION OF ITS OBLIGATION UNDER SECTION 11(A) OF THE ORDER TO MEET
AND CONFER IN GOOD FAITH WITH THE COMPLAINANT. THE RESPONDENT CONTENDED
THAT THE DIRECTIVES IN QUESTION WERE MERELY A REAFFIRMATION OF EXISTING
POLICIES. THE COMPLAINANT DISPUTED THE RESPONDENT'S CONTENTIONS, BUT
ARGUED IN THE ALTERNATIVE THAT, EVEN IF THE DIRECTIVES CONSTITUTED A
REAFFIRMATION OF EXISTING POLICY, SUCH ACTION, CONCERNING SUBJECTS WHICH
WERE AT THAT TIME SUBJECTS OF BARGAINING NEGOTIATIONS AND/OR SUBJECTS
BEFORE THE FEDERAL SERVICE IMPASSES PANEL, CONSTITUTED VIOLATIONS OF
SECTION 19(A)(1) AND (6) OF THE ORDER.
IN HIS RECOMMENDED DECISION AND ORDER, THE ADMINISTRATIVE LAW JUDGE
FOUND THAT BASE REGULATION 35-1 PROVIDED, AMONG OTHER THINGS, FOR A
CHANGE IN THE MANNER OF WEARING THE UTILITY UNIFORM FROM THE PREVIOUS
BASE POLICY, AND THAT SUCH PROVISION IS A SUBJECT FOR BARGAINING
PURSUANT TO THE PROVISIONS OF SECTION 11(A) OF THE ORDER. UNDER THESE
CIRCUMSTANCES, THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER WHEN IT ISSUED BASE
REGULATION 35-1 WITHOUT FIRST NOTIFYING THE COMPLAINANT, AND BARGAINING
IN GOOD FAITH CONCERNING THIS PROVISION. HOWEVER, WITH REGARD TO THE
OTHER MATTERS CONTAINED IN BASE REGULATION 35-1, AND THE DIRECTIVE
ENTITLED "TECHNICIAN WORK DAY," THE ADMINISTRATIVE LAW JUDGE FOUND THAT
THEY CONSTITUTED A RESTATEMENT OF ALREADY EXISTING POLICIES, AND THAT
SUCH RESTATEMENT DID NOT EVIDENCE A REFUSAL TO BARGAIN ON SUCH SUBJECTS.
THE ASSISTANT SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE AND ORDERED THAT THE
RESPONDENT CEASE AND DESIST FROM THE CONDUCT FOUND VIOLATIVE AND THAT IT
TAKE CERTAIN AFFIRMATIVE ACTIONS. THE ASSISTANT SECRETARY ALSO ORDERED
THAT THE COMPLAINT, INSOFAR AS IT ALLEGED ADDITIONAL VIOLATIONS OF
SECTION 19(A)(1) AND (6) OF THE ORDER FOUND NOT TO BE VIOLATIVE, BE
DISMISSED.
PENNSYLVANIA AIR NATIONAL GUARD
RESPONDENT
CASE NO. 20-5582(CA)
AND
ASSOCIATION OF CIVILIAN TECHNICIANS (ACT)
COMPLAINANT
DECISION AND ORDER
ON FEBRUARY 7, 1977, ADMINISTRATIVE LAW JUDGE WILLIAM B. DEVANEY
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 CEASE AND DESIST THEREFROM AND
TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN THE ATTACHED
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER. THEREAFTER,
THE RESPONDENT 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
EXCEPTIONS AND SUPPORTING BRIEF FILED BY THE RESPONDENT, I HEREBY ADOPT
THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS.
THUS, IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, I FIND THAT THE
RESPONDENT'S ISSUANCE OF BASE REGULATION 35-1 ON FEBRUARY 15, 1976,
WHICH, AMONG OTHER THINGS, CHANGED THE MANNER OF WEARING THE UTILITY
UNIFORM BY UNIT EMPLOYEES, A SUBJECT MATTER FOR BARGAINING UNDER THE
PROVISIONS OF SECTION 11(A) OF THE ORDER, CONSTITUTED A UNILATERAL
CHANGE IN WORKING CONDITIONS IN VIOLATION OF SECTION 19(A)(1) AND (6) OF
THE ORDER. /1/
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 PENNSYLVANIA AIR
NATIONAL GUARD SHOULD:
1. CEASE AND DESIST FROM:
(A) INSTITUTING A CHANGE IN POLICY WITH RESPECT TO THE MANNER OF
WEARING THE UTILITY UNIFORM BY EMPLOYEES OF THE PENNSYLVANIA AIR
NATIONAL GUARD WITHOUT NOTIFYING THE ASSOCIATION OF CIVILIAN
TECHNICIANS, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, AND
AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER ON THE
DECISION TO EFFECTUATE SUCH A CHANGE.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING 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 POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) NOTIFY THE ASSOCIATION OF CIVILIAN TECHNICIANS OF ANY INTENDED
CHANGE IN POLICY WITH RESPECT TO THE MANNER OF WEARING THE UTILITY
UNIFORM BY UNIT EMPLOYEES OF THE PENNSYLVANIA AIR NATIONAL GUARD AND,
UPON REQUEST, MEET AND CONFER IN GOOD FAITH ON SUCH INTENDED CHANGE.
(B) POST AT THE FACILITY OF THE PENNSYLVANIA AIR NATIONAL GUARD AT
THE GREATER PITTSBURGH AIRPORT, CARAOPOLIS, PENNSYLVANIA, 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
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 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, INSOFAR AS IT ALLEGES
ADDITIONAL VIOLATIONS OF SECTION 19(A)(1) AND (6) OF THE ORDER BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JULY 21, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ CF. AFGE, NATIONAL IMMIGRATION AND NATURALIZATION SERVICES
COUNCIL, FLRC NO. 76A-26.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS AND IN ORDER TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
AMENDED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INSTITUTE A CHANGE IN POLICY WITH RESPECT TO THE MANNER
OF WEARING THE UTILITY UNIFORM BY EMPLOYEES OF THE PENNSYLVANIA AIR
NATIONAL GUARD WITHOUT NOTIFYING THE ASSOCIATION OF CIVILIAN
TECHNICIANS, THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, AND
AFFORDING THE ASSOCIATION OF CIVILIAN TECHNICIANS THE OPPORTUNITY TO
MEET AND CONFER ON THE DECISION TO EFFECTUATE SUCH A CHANGE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL NOTIFY THE ASSOCIATION OF CIVILIAN TECHNICIANS OF ANY
INTENDED CHANGE IN POLICY WITH RESPECT TO THE MANNER OF WEARING THE
UTILITY UNIFORM BY UNIT EMPLOYEES OF THE PENNSYLVANIA AIR NATIONAL GUARD
AND, UPON REQUEST, MEET AND CONFER IN GOOD FAITH ON SUCH INTENDED
CHANGE.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
COMMANDING OFFICER
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 FOR LABOR MANAGEMENT SERVICES, LABOR-MANAGEMENT SERVICES
ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, WHOSE ADDRESS IS:
RM. 14120 GATEWAY BLDG., 3535 MARKET STREET, PHILADELPHIA, PENNSYLVANIA
19104.
U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
SUITE 700-1111 20TH STREET, N.W.
WASHINGTON, D.C. 20036
IN THE MATTER OF
PENNSYLVANIA AIR NATIONAL GUARD
RESPONDENT
CASE NO. 20-5582(CA)
AND
ASSOCIATION OF CIVILIAN TECHNICIANS
COMPLAINANT
LEONARD SPEAR, ESQUIRE
MERANZE, KATZ, SPEAR & WILDERMAN
TWELFTH FLOOR
LEWIS TOWER BUILDING
N.E. CORNER 15TH & LOCUST STREETS
PHILADELPHIA, PENNSYLVANIA 19102
FOR THE COMPLAINANT
MAJOR GEORGE M. ORNDOFF
PENNSYLVANIA NATIONAL GUARD
DEPARTMENT OF MILITARY AFFAIRS
ANNVILLE, PENNSYLVANIA 17003
TRIAL COUNSEL
COLONEL HUGH S. NILES
PERSONNEL OFFICER
DEPARTMENT OF MILITARY AFFAIRS
ADJUTANT GENERAL'S OFFICE
COMMONWEALTH OF PENNSYLVANIA
ANNVILLE, PENNSYLVANIA 17003
ON BRIEF FOR RESPONDENT
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED (HEREINAFTER
ALSO REFERRED TO AS THE "ORDER"). IT WAS INITIATED BY A CHARGE FILED
ON, OR ABOUT, MARCH 2, 1976, AND A COMPLAINT FILED ON APRIL 22, 1976.
THE COMPLAINT ALLEGED A VIOLATION OF SECTIONS 19(A)(1), (2), (5) AND (6)
OF THE ORDER; HOWEVER, BY LETTER DATED SEPTEMBER 7, 1976, COMPLAINANT
REQUESTED WITHDRAWAL OF THE ALLEGATIONS CONCERNING SECTIONS 19(A)(2) AND
(5) OF THE ORDER; THE REGIONAL ADMINISTRATOR BY LETTER DATED SEPTEMBER
9, 1976, GRANTED THE REQUEST TO WITHDRAW THE SECTION 19(A)(2) AND (5)
ALLEGATIONS; AND ON SEPTEMBER 20, 1976, A NOTICE OF HEARING ISSUED ON
THE 19(A)(1) AND (6) ALLEGATIONS; AND, PURSUANT THERETO, A HEARING WAS
DULY HELD BEFORE THE UNDERSIGNED IN PITTSBURGH, PENNSYLVANIA ON NOVEMBER
9, 1976.
THE TWO PRINCIPAL AREAS OF DISPUTE ARE: FIRST, WHETHER THERE WAS A
POLICY CHANGE WITH RESPECT TO THE MANNER OF WEARING THE UTILITY UNIFORM
(FATIGUES); AND, SECOND, WHETHER, IN ANY EVENT, EVEN THE REAFFIRMATION
OF EXISTING POLICY CONCERNING THE MANNER OF WEARING THE UTILITY UNIFORM
AND NON-ALLOWANCE OF OFFICIAL TIME FOR CHANGING FROM AND TO CIVILIAN
ATTIRE IS AN UNFAIR LABOR PRACTICE WHEN THE SAME SUBJECT MATTERS WERE
BEFORE THE FEDERAL SERVICE IMPASSES PANEL AND/OR WERE IN NEGOTIATION.
/1/
THE GENESIS OF THE PRESENT CASE WAS A DRAFT BASE REGULATION DATED
JANUARY 12, 1976, ENTITLED "DRESS AND PERSONAL APPEARANCE OF ANG
PERSONNEL" AND A DRAFT MEMORANDUM, ALSO DATED JANUARY 13, 1976, ENTITLED
"TECHNICIAN WORK DAY" BOTH OF WHICH WERE TRANSMITTED TO THE CHIEF
STEWARD, PITTSBURGH CHAPTER, ASSOCIATION OF CIVILIAN TECHNICIANS (ACT)
BY MEMORANDUM DATED JANUARY 16, 1976, FOR COMMENT AND/OR CONCURRENCE
(COMP. EXH. 1). CHIEF STEWARD KREPITCH RESPONDED BY MEMORANDUM DATED
JANUARY 22, 1976, IN WHICH HE STATED, IN ESSENCE, THAT:
1. WE CANNOT CONCUR WITH THE ISSUANCE OF SUCH DIRECTIVES.
2. ALL MATTERS OF POLICY AND DIRECTIVES MUST BE ESTABLISHED THROUGH
THE STATE COUNCIL OF ACT AND WITH THE ADJUTANT GENERAL OF PENNSYLVANIA.
3. AS THE MATTERS INVOLVED ARE BEFORE THE IMPASS PANEL, ISSUANCE OF
A DIRECTIVE WOULD BE IMPROPER.
4. ACT IS STRONGLY OPPOSED TO NO ALLOWABLE TIME DURING WORK HOURS
FOR CHANGING INTO CIVILIAN ATTIRE.
BASE REGULATION 35-1, ENTITLED "DRESS AND PERSONAL APPEARANCE OF ANG
PERSONNEL", ISSUED FEBRUARY 15, 1976 (COMP. EXH. 1) AND THE MEMORANDUM
RE "TECHNICIAN WORK DAY" ISSUED FEBRUARY 15, 1976 (COMP. EXH. 3).
ALL PARTIES WERE REPRESENTED BY COUNSEL, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES /2/ AND
TO INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED AND BRIEFS WERE
TIMELY FILED BY THE PARTIES WHICH HAVE BEEN CAREFULLY CONSIDERED. UPON
THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT AND
CONCLUSIONS AND RECOMMENDATION:
PRELIMINARY STATEMENT
THIS CASE DOES NOT INVOLVE NEGOTIATIONS OF THE GUARD AND ACT AND, OF
COURSE, DOES NOT INVOLVE NEGOTIABILITY IN ANY RESPECT. THE GUARD'S
POSITION CONCERNING NEGOTIABILITY, OR MORE CORRECTLY THE
NON-NEGOTIABILITY, OF CERTAIN DEMANDS OF THE STATE COUNCIL IS FULLY
UNDERSTOOD. WHETHER THE GUARD'S POSITION IS CORRECT OR INCORRECT MUST
BE RESERVED FOR DETERMINATION AT AN APPROPRIATE TIME AND IN AN
APPROPRIATE PROCEEDING AND CANNOT, AND WILL NOT, BE CONSIDERED IN THIS
PROCEEDING.
FINDINGS OF FACT
1. ON JANUARY 16, 1976, MR. GEORGE OLECK, AIR NATIONAL GUARD AERO
SPACE GROUND EQUIPMENT MECHANIC AT GREATER PITTSBURGH AIRPORT, WHO AS
THEN STATE CHAIRMAN OF ACT, IN THE ABSENCE OF MICHAEL KREPITCH, THEN
PRESIDENT AND CHIEF STEWARD OF THE LOCAL CHAPTER OF ACT, WAS CALLED TO
THE OFFICE OF BRIGADIER GENERAL PHILLIPY, AIR COMMANDER OF THE AIR
TECHNICIAN DETACHMENT AT GREATER PITTSBURGH AIRPORT, AND WAS GIVEN THE
DRAFT BASE REGULATIONS RE "DRESS AND PERSONAL APPEARANCE OF ANG
PERSONNEL" AND THE DRAFT MEMORANDUM RE "TECHNICIAN WORK DAY" EACH OF
WHICH WAS DATED JANUARY 12, 1976, AND WHICH WAS ATTACHED TO A LETTER
DATED JANUARY 16, 1976, ADDRESSED TO T SGT. MICHAEL KREPITCH, CHIEF
STEWARD, PGH CHAPTER ACT (COMP. EXH. 1). MR. OLECK DELIVERED THE
MATERIAL TO MR. KREPITCH THE FOLLOWING DAY WHEN MR. KREPITCH CAME TO
WORK.
2. GENERAL PHILLIPY STATED IN HIS LETTER TO SGT. KREPITCH, IN PART,
AS FOLLOWS:
"1. ATTACHED FOR YOUR COMMENTS AND/OR CONCURRENCE ARE DRAFTS OF THE
FOLLOWING PROPOSED DIRECTIVES.
"A. LETTER, HG. BASE DET/BCC, 12 JAN. 76, SUBJECT: TECHNICIAN
WORKDAY
"B. BASE REGULATIONS 35-1 DRESS AND PERSONAL APPEARANCE
"2. YOUR COMMENTS WILL BE GIVEN FULL CONSIDERATION, HOWEVER IT IS
ESSENTIAL THAT YOU UNDERSTAND THAT NO NEW POLICIES ARE BEING
ESTABLISHED. THESE ARE BEING ISSUED TO SUPPLEMENT AND CLARIFY
PROCEDURES THAT ARE PRESENTLY IN BEING IN VARIOUS DIRECTIVES OF HIGHER
HEADQUARTERS AND COMPLIANCE IS MANDATORY FOR ALL PERSONNEL.
"3. I AM EARNESTLY (SIC) REQUESTING THE FULL SUPPORT OF YOU AS THE
CHIEF STEWARD IN THESE MATTERS AS WELL AS ALL MEMBERS OF THE UNIT. AN
UNSATISFACTORY CONDITION PRESENTLY EXISTS IN WORK HABITS AND DRESS AND
PERSONAL APPEARANCE. THE RECENT 9TH AIR FORCE I.G. REPORT EXPANDS ON
THE LATTER SUBJECT INDICATING THE UNSATISFACTORY STATUS . . .
"4. YOUR REPLY WOULD BE APPRECIATED BY NOT LATER THAN 23 JANUARY
1976. NON RECEIPT OF ANY REPLY WILL INDICATE COMPLETE CONCURRENCE AND
DIRECTIVES WILL BE ISSUED AS WRITTEN." (COMP. EXH. 1).
3. DRAFT BASE REGULATION 35-1 STATED THAT "THIS REGULATION
IMPLEMENTS THE PROVISIONS OF AFR 35-10 AND IS PUBLISHED TO INSURE
UNIFORMITY IN THE WEARING OF THE MILITARY UNIFORM BY ALL AIR NATIONAL
GUARD PERSONNEL INCLUDING TECHNICIANS WHILE PERFORMING DUTY IN THEIR
TECHNICIAN STATUS." THE DRAFT REGULATIONS FURTHER PROVIDED:
"1. POLICY: THE DRESS AND PERSONAL APPEARANCE OF ANG PERSONNEL
ASSIGNED TO UNITS OF THIS BASE WILL COMPLY WITH AFR 35-10 AS IMPLEMENTED
AND/OR REITERATED BY THIS DIRECTIVE.
"2. TECHNICIAN PERSONNEL: TECHNICIANS IN THE EXCEPTED SERVICE . .
. WILL WEAR THE MILITARY UNIFORM APPROPRIATE TO THEIR MILITARY GRADE
(CHAPTER 2, TPP 904). SUCH PERSONNEL WILL COMPLY WITH AFR 35-10 WHILE
WEARING THE UNIFORM IN THEIR TECHNICIAN STATUS (CHAPTER 7, AFR 35-10).
"3. UNIFORM COMBINATIONS:
"A. MALE SERVICE UNIFORM: . . . (1. THROUGH 4 AND "NOTE" RE
HEADGEAR)
"B. WEAR OF UNIFORMS BY FEMALE PERSONNEL: BECAUSE OF THE RELATIVELY
SMALL NUMBER OF ASSIGNED FEMALE PERSONNEL, IT IS NOT DEEMED NECESSARY TO
DISCUSS THE VARIOUS UNIFORM COMBINATIONS WHICH THEY MAY WEAR. THEY
SHOULD CONSULT CHAPTER 4, AFR 35-10 FOR FULL PARTICULARS.
"C. UTILITY UNIFORM: THE UTILITY UNIFORM (FATIGUES) MAY BE WORN AT
ALL TIMES BY THOSE PERSONNEL WHOSE ASSIGNED DUTIES REQUIRE SUCH WEAR.
THIS INCLUDES ROLL CALLS EXCEPT WHEN ANOTHER SPECIFIC UNIFORM IS
DESIGNATED. WHEN WEARING THE UTILITY UNIFORM, THE SHIRT WILL ALWAYS BE
WORN TUCKED INSIDE THE TROUSERS. WHEN THE WEATHER SO DICTATES THE SHIRT
MAY BE REMOVED AND THE T-SHIRT WORN AS AN OUTER GARMENT IN WORK AREAS.
EXCEPT WHEN SAFETY WOULD BE COMPROMISED, THE UTILITY CAP WILL BE WORN
WHENEVER AN INDIVIDUAL IS OUTDOORS.
"4. DRESS AND APPEARANCE. EACH AIR NATIONAL GUARDSMAN, WHETHER IN A
MILITARY OR TECHNICIAN STATUS MUST MAINTAIN A HIGH STANDARD OF DRESS AND
PERSONAL APPEARANCE. THE STANDARD, WHICH IS EXPLAINED FULLY IN AFR
35-10, IS COMPRISED OF FOUR ELEMENTS-NEATNESS, CLEANLINESS, SAFETY, AND
MILITARY IMAGE.
"5. UNIFORM VIOLATIONS. EXPERIENCE OVER PAST YEARS HAS INDICATED A
TENDENCY FOR VARIOUS VIOLATIONS OF UNIFORM REGULATIONS. THIS MUST BE
GUARDED AGAINST AND CORRECTED WHERE REQUIRED. IN THIS CATEGORY ARE SUCH
INSTANCES AS:
A. IMPROPER AND MIXED COMBINATIONS.
B. ILL-FITTING UNIFORMS.
C. SLEEVES ROLLED UP ON FATIGUE BLOUSES.
D. COLORED T-SHIRTS.
E. LONG SLEEVE UNDERWEAR SHOWING WITH SHORT SLEEVE SHIRTS OR UTILITY
BLOUSES.
F. UNIFORMS NOT BUTTONED.
G. NAME TAGS, NAME TAPES, INSIGNIA AND/OR CHEVRONS NOT WORN.
H. HATS NOT WORN OUTDOORS.
I. WEARING INNER GARMENT LINERS AS OUTER GARMENTS.
. . . . " (COMP. EXH. 1)
5. DRAFT MEMORANDUM RE "TECHNICIAN WORK DAY", RECITED THAT THE
TENDENCY OF AIR TECHNICIAN PERSONNEL TO ARRIVE LATE HAS BEEN INCREASING
AND, IF ALLOWED TO GO UNCHECKED, COULD INCREASE EVEN MORE IN THE COLD
WINTER DAYS AHEAD AND STATED, IN PART,
"1. . . . EXCEPT FOR THE MOST EXTENUATING CIRCUMSTANCES IT IS EACH
INDIVIDUAL'S
RESPONSIBILITY TO BE IN HIS SECTION, IN PROPER UNIFORM, AT THE TIME
HIS DUTY SCHEDULE
BEGINS. IF HE IS ON A 0730 TO 1600 SCHEDULE THIS MEANS 0730 NOT 0731
OR LATER. SIMILARLY IF
HIS SCHEDULE ENDS AT 1600 HE WILL BE IN HIS WORK AREA AT 1600 AND NOT
IN HIS PRIVATELY OWNED
VEHICLE OR AT AN EXIT DOOR. AS PREVIOUSLY POINTED OUT PERSONNEL MAY
BE EXCUSED AT A
REASONABLE TIME TO WASH UP. HOWEVER THERE CAN BE NO ALLOWABLE TIME
DURING WORKING HOURS FOR
CHANGING FROM CIVILIAN ATTIRE INTO AND OUT OF MILITARY UNIFORM.
SUPERVISORS AT ALL LEVELS
WILL BE HELD RESPONSIBLE FOR ENFORCEMENT OF THESE NORMAL AND PROPER
WORKING PROCEDURES."
"2. IT IS RECOGNIZED THERE ARE OCCASIONAL EXTENUATING CIRCUMSTANCES
. . . THAT MAY CAUSE
LATE ARRIVALS. THEREFORE, EXCEPT FOR THESE OCCASIONAL EXTENUATING
PERIODS, AN INDIVIDUAL WHO
IS MORE THAN 10 MINUTES LATE IN ARRIVING FOR DUTY WILL BE CHARGED 1
HOUR LEAVE. HOWEVER IF AN
INDIVIDUAL IS FREQUENTLY OR HABITUALLY LATE FOR WORK, HE WILL BE
CHARGED 1 HOURS LEAVE FOR
PERIODS OF LESS THAN 10 MINUTES.
"3. THIS IS NOT A NEW POLICY BUT IS MERELY A RESTATEMENT OF STANDARD
OPERATING
PROCEDURES. IN CONSONANCE WITH THIS PARA 3-6N, ANGM 177-204 IS
QUOTED FOR YOUR INFORMATION
AND GUIDANCE.
'TARDINESS. THE TECHNICIAN'S SUPERVISOR MAY EXCUSE TARDINESS OR
UNAVOIDABLE ABSENCES FROM
DUTY PERIODS OF LESS THAN 1 HOUR IF THE TECHNICIAN HAS ADEQUATE
REASONS. WHEN ABSENCES OR
TARDINESS ARE CHRONIC OR NOT EXCUSED, SUCH ABSENCES WILL BE CHARGED
TO ANNUAL LEAVE OR LEAVE
WITHOUT PAY IN MULTIPLES OF 1 HOUR."
. . . . " (COMP. EXH. 1).
6. MR. OLECK TESTIFIED THAT ON JANUARY 16, 1976, HE INFORMED GENERAL
PHILLIPY THAT THERE WERE NUMEROUS CHANGES MADE BY THE TWO DRAFT
DOCUMENTS, ONE OF THE BIGGEST BEING "CHANGING UNIFORMS AFTER QUITTING
TIME." HE FURTHER STATED THAT AS LONG AS HE HAD BEEN A TECHNICIAN AT
PITTSBURGH, OVER 35 YEARS, "WE ALWAYS HAD TIME TO CLEAN UP, CHANGE
UNIFORMS, AND LEAVE AT QUITTING TIME"; ALTHOUGH IT DOES NOT APPEAR THAT
MR. OLECK PERSONALLY CHANGED UNIFORMS ON DUTY TIME. INDEED, MR. OLECK
TESTIFIED THAT THE REGULATIONS, WHEN ISSUED ON FEBRUARY 15, 1976,
DIRECTLY AFFECTED HIM BY REQUIRING THAT HE WEAR HIS FATIGUE SHIRT TUCKED
INSIDE THE TROUSERS. MR. OLECK STATED THAT HE ALSO HAD A DISCUSSION
WITH GENERAL PHILLIPY ON JANUARY 2, 1976, ABOUT PEOPLE LEAVING THE WORK
AREA BEFORE QUITTING TIME AND THAT HE HAD TOLD GENERAL PHILLIPY AT THAT
TIME,
"I AGREED THIS WAS A PROBLEM AND IT WAS A MANAGEMENT PROBLEM AND I
DEFINITELY FELT THAT
THEY HAD A LEGITIMATE COMPLAINT BUT IT WAS A SUPERVISORY
RESPONSIBILITY TO CONTROL THOSE
PEOPLE." (TR. 19).
MR. OLECK ADMITTED THAT THERE WERE PRIOR REGULATIONS BUT ASSERTED
THAT THEY HAD NOT BEEN STRICTLY ENFORCED. IN ESSENCE, HE SUMMED UP HIS
POSITION AS "WE ARE SLOWLY BEING MORE AND MORE ORIENTED TOWARDS COMPLETE
MILITARY AND NOT A CIVILIAN STATUS WHICH WE ARE"; THAT "THE WHOLE
UNIFORM ISSUE, AS FOR AS OTHER THINGS, IS AT AN IMPASS WITH OUR
NEGOTIATORS."; AND THAT HE RECOMMENDED TO GENERAL PHILLIPY THAT "WE
LEAVE EVERYTHING AS IS . . . UNTIL WE WORK IT OUT AT THE NEGOTIATING
TABLE."
7. CHIEF STEWARD KREPTICH RESPONDED IN WRITING ON BEHALF OF ACT, BY
LETTER DATED JANUARY 22, 1976 (COMP. EXH. 4) AND, IN SUBSTANCE, STATED:
1. WE MAINTAIN THAT THESE ARE CHANGES IN WORK CONDITIONS AND CANNOT
CONCUR WITH THE ISSUANCE OF SUCH DIRECTIVES.
2. THE SUBJECT MATTER COVERED BY THE DIRECTIVES IS AN ISSUE IN
NEGOTIATION BEFORE THE IMPASS PANEL.
3. WE SEE NO REFERENCE IN TPP 904 OR 907 TO AFR 35-10 AND THEREFORE
OBJECT TO ANY REFERENCE TO AFR 35-10.
4. WE ARE STRONGLY OPPOSED TO NO ALLOWABLE TIME DURING WORK HOURS TO
CHANGE INTO CIVILIAN ATTIRE AND "WE WOULD LIKE TO SEE AN APPROPRIATE
AMOUNT OF TIME FOR EMPLOYEES TO CHANGE INTO THEIR CLEAN CLOTHES."
ALL STEWARDS HAVE BEEN BRIEFED AS TO THE SERIOUSNESS OF LATE ARRIVALS
AND EARLY DEPARTURES. "THEY ALSO HAVE BEEN INSTRUCTED, IN NO UNCERTAIN
TERMS, THAT THEY ARE RESPONSIBLE TO ADJUST THE SITUATION, SINCE
SUPERVISORY CONTROL IS LACKING." (COMP. EXH. 4).
SGT. KREPITCH TESTIFIED THAT HE REPORTED TO WORK IN UNIFORM AND LEFT
WORK IN HIS UNIFORM; BUT THAT IT HAD ALWAYS BEEN OPTIONAL TO WEAR THE
SHIRT TAIL IN OR OUT. SGT. KREPITCH FURTHER TESTIFIED THAT PRIOR TO
FEBRUARY 15, 1976, WHEN THERE WAS ANYTHING OUT OF LINE ABOUT THE UNIFORM
(E.G., MISSING BUTTON OR NOT BUTTONED) WE WERE TOLD TO CORRECT THE
SITUATION AND IT WAS DROPPED; BUT THAT AFTER THE BASE REGULATION BECAME
EFFECTIVE ON FEBRUARY 15, 1976, THERE WAS AN IMMEDIATE LETTER OF
DISCIPLINARY ACTION SUBMITTED ON AN INDIVIDUAL.
7. GENERAL PHILLIPY TESTIFIED THAT HE NEITHER MET WITH THE CHIEF
STEWARD NOR RESPONDED TO HIS LETTER OF JANUARY 22, 1976, BECAUSE "I
DIDN'T THINK IT REQUIRED A RESPONSE." SGT. KREPITCH STATED THAT ALTHOUGH
HE EXPECTED SOME KIND OF RESPONSE, HE DID NOT ASK FOR A MEETING; AND
THAT, INDEED, HE HAD PASSED THE PROPOSED DIRECTIVES UP TO THE STATE
COUNCIL AND "IT WAS COMPLETELY OUT OF MY HANDS. . . . IT'S AT THE
FEDERAL IMPASSES PANEL. I HAVE NO RIGHT TO SIT DOWN AND DISCUSS THESE
MATTERS."
8. MESSRS. MCMULLEN AND MCCANCE TESTIFIED THAT FOR 15 AND 10 YEARS
RESPECTIVELY PRIOR TO FEBRUARY 15, 1976, THEY HAD BEEN PERMITTED TO
CHANGE ATTIRE ON DUTY TIME AS PART OF THEIR CLEAN UP BUT THAT AFTER
FEBRUARY 15, WHILE ALLOWED TIME FOR CLEAN UP, THEY WERE NO LONGER
PERMITTED TO CHANGE CLOTHES. MESSRS. OLECK, KREPTICH, COMBS, AND HOYLE
TESTIFIED THAT AFTER FEBRUARY 15, 1976, THEIR PRIOR PRACTICES WERE
ALTERED IN VARIOUS WAYS, PRINCIPALLY AS RELATED TO HAVING TO WEAR THEIR
SHIRT TAILS TUCKED IN, HAVING TO WEAR A CAP WHEN OUTDOORS, ETC., ABOUT
WHICH MESSRS. MCMULLEN AND MCCANCE ALSO COMPLAINED, BUT THEY DID NOT
ASSERT ANY CHANGE AS TO THEMSELVES WITH RESPECT TO CHANGING UNIFORMS.
ACTUALLY THE RESTRICTIONS VIS-A-VIS THE WEARING OF THE UNIFORM
COMPLAINED OF BY THE TECHNICIANS ENCOMPASSED MOST, IF NOT ALL, OF THE
EXAMPLES OF UNIFORM VIOLATIONS SET FORTH IN PARAGRAPH 5 OF BASE
REGULATION 35-1. MR. COMBS ALSO TESTIFIED THAT IN PREVIOUS WINTERS HE
HAD BEEN GIVEN PERMISSION TO WEAR CIVILIAN-TYPE GLOVES AND INSULATED
SHOES AND HAD BEEN DENIED SUCH PERMISSION AFTER FEBRUARY 15, 1976. MR.
HOYLE TESTIFIED THAT HE HAD BEEN FORMALLY REPRIMANDED FOR A UNIFORM
VIOLATION (SLEEVES ROLLED UP) AFTER FEBRUARY 15, 1976, AND THAT HE WAS
TOLD THAT IF HE DID NOT FOLLOW ALL THE PROVISIONS OF BASE REGULATIONS
35-1 HE WOULD NOT BE RE-ENLISTED.
9. FOLLOWING RECEIPT OF CHIEF STEWARD KREPITCH'S REPLY DATED JANUARY
22, 1976, IN WHICH ACT ASSERTED THAT BOTH PROPOSED DIRECTIVES
CONSTITUTED A CHANGE IN WORK CONDITIONS, GENERAL PHILLIPY ON JANUARY 31,
1976, REQUESTED THE ADVICE OF THE TECHNICIAN PERSONNEL OFFICER, COLONEL
HUGH S. NILES, AS TO WHETHER EITHER PROPOSED DIRECTIVE CONSTITUTED ANY
"CHANGE IN WORKING CONDITIONS" (RES. EXH. 11) AND COLONEL NILES REPLIED
BY INDORSEMENT DATED FEBRUARY 3, 1976. AS TO PROPOSED BASE REGULATION
35-1, COLONEL NILES NOTED THAT AFM 35-10 WAS NOW AFR 35-10 AND CONCLUDED
THAT THE PROPOSED IMPLEMENTING INSTRUCTION WOULD NOT CONSTITUTE A CHANGE
IN WORKING CONDITIONS "PROVIDING IT DOES NOT GO BEYOND THE GUIDELINES OF
THE REGULATION." (RES. EXH. 11). AS TO THE PROPOSED "TECHNICIAN WORK
DAY" DIRECTIVE, COLONEL NILES STATED THAT THE STATE COUNCIL HAD
SUBMITTED A PROPOSAL FOR OFFICIAL (DUTY) TIME AT THE BEGINNING AND CLOSE
OF WORK DAY FOR THE PURPOSE OF CHANGING INTO AND OUT OF UNIFORM; THAT
THE NATIONAL GUARD BUREAU HAD ADVISED THAT A SIMILAR PROPOSAL FROM
ANOTHER STATE HAD BEEN DETERMINED NON-NEGOTIABLE; THAT NATIONAL GUARD
BUREAU REGULATIONS MANDATE THE WEARING OF THE MILITARY UNIFORM BY
TECHNICIANS DURING DUTY HOURS AND, CONSEQUENTLY, THERE CAN BE NO
ALLOWABLE TIME DURING WORKING HOURS FOR CHANGING FROM CIVILIAN ATTIRE;
AND THAT A COPY OF THIS DETERMINATION HAD BEEN FURNISHED TO THE UNION
NEGOTIATORS. ACCORDINGLY, COLONEL NILES CONCLUDED THAT " . . . YOUR
PROPOSED BASE POLICY IS CONSISTENT WITH NGB REGULATIONS. ANY CHANGE OF
WORKING CONDITIONS WHICH YOUR TECHNICIAN WORKDAY LETTER MAKES, WOULD BE
TO BRING YOUR BASE POLICY INTO COMPLIANCE WITH NATIONAL GUARD BUREAU
REGULATIONS." (RES. EXH. 11).
ACCORDINGLY, THE DIRECTIVES AS SUBMITTED ON JANUARY 16, 1976, WERE
ISSUED ON FEBRUARY 15, 1976, WITHOUT CHANGE, EXCEPT AS TO DATE AND BASE
REGULATION 35-1 DELETED THE REFERENCE IN PAR. 2 TO ("CHAPTER 2, TPP
904)" AND THE WORD "SHOULD" IN PAR. 3B. LINE 3 WAS CHANGED TO "WILL".
10. EXCEPT FOR THE SENTENCE, "HOWEVER THERE CAN BE NO ALLOWABLE TIME
DURING WORKING HOURS FOR CHANGING FROM CIVILIAN ATTIRE INTO AND OUT OF
MILITARY UNIFORM" IN THE "TECHNICIAN WORK DAY" DIRECTIVE, IT IS
PERFECTLY CLEAR THAT THE REMAINDER REPRESENTED NO CHANGE OF POLICY OR
PRACTICE WHATEVER. INDEED, PARAGRAPH 2 OF THE JANUARY 12, 1976, DRAFT
AND DIRECTIVE OF FEBRUARY 15, 1976, APPEARED, VERBATIM, AS PARAGRAPH 6C.
OF THE LIKE DIRECTIVE OF GENERAL PHILLIPY DATED FEBRUARY 3, 1971 (RES.
EXH. 10) WHICH THE RECORD SHOWS WAS THE CONSISTENT BASE POLICY. THE
1971 DIRECTIVE STATED IN PART:
"6. IN THE INTEREST OF STANDARDIZATION AND CLARIFICATION FOR ALL
PERSONNEL, THE BASE
POLICY FOR OBSERVING SCHEDULED WORKING HOURS IS REITERATED AS
FOLLOWS:
"A. SINCE WE ARE BEING PAID FOR EIGHT HOURS OF WORK IT IS EXPECTED
THAT WE AS INDIVIDUALS
ARE AVAILABLE FOR DUTY AS SCHEDULED BY THE SUPERVISORS FOR THE ENTIRE
EIGHT HOUR PERIOD LESS
THOSE TIMES DESIGNATED AS AUTHORIZED BREAK PERIODS.
"B. EACH SECTION WILL BE OPERATIONAL FOR THE ENTIRE PERIOD AS
SCHEDULED. IF THE SECTION
IS SCHEDULED FOR THE 0730-1600 WORK PERIOD, ALL ITS PERSONNEL WILL BE
AVAILABLE FOR DUTY
THROUGHOUT THE PERIOD LESS THOSE PERIODS OF PROPERLY AUTHORIZED
ABSENCES BY THE
SUPERVISORS. TO BE MORE SPECIFIC, AT 1559 THE SECTION WILL STILL BE
FULLY OPERATIONAL AND ALL
PERSONNEL AVAILABLE IN THE SECTION AT THAT TIME." (RES. EXH. 10).
THE "TECHNICIAN WORK DAY" DIRECTIVE STATED THAT, "AS PREVIOUSLY
POINTED OUT PERSONNEL MAY BE EXCUSED AT A REASONABLE TIME TO WASH UP"
WHICH, ALTHOUGH NOT STATED IN THE 1971 DIRECTIVE, WAS CONSISTENT WITH
THE QUALIFICATION "LESS THOSE PERIODS OF PROPERLY AUTHORIZED ABSENCES BY
THE SUPERVISORS" OF THE 1971 DIRECTIVE. GENERAL PHILLIPY AND COLONELS
ROSENBERG AND GLAS EACH TESTIFIED THAT THERE HAD NEVER BEEN ANY
AUTHORIZATION PERMITTING THE CHANGING OF ATTIRE ON DUTY TIME.
REASONABLE TIME FOR WASH-UP WAS ALLOWABLE BY SUPERVISORS BOTH BEFORE AND
AFTER FEBRUARY 15, 1976, AND FROM ALL THE TESTIMONY AND EVIDENCE I FIND
THAT THE CONSISTENT POLICY OF THE BASE HAD BEEN TO PERMIT SUPERVISORS TO
AUTHORIZE TECHNICIANS REASONABLE TIME FOR WASH-UP ON DUTY TIME AND THAT
THERE WAS NEVER ANY POLICY PERMITTING THE CHANGING OF ATTIRE ON DUTY
TIME. THE RECORD SHOWS WITHOUT CONTRADICTION THAT DUTY TIME FOR WASH-UP
WAS WHOLLY LIMITED TO TECHNICIANS INVOLVED IN DIRTY WORK.
TECHNICIANS, SUCH AS MESSRS. MCMULLEN AND MCCANCE, WHEN ALLOWED TIME
TO WASH-UP, OBVIOUSLY USED A PORTION OF THE TIME ALLOWED TO CHANGE
CLOTHES PRIOR TO FEBRUARY 15, 1976, NOTWITHSTANDING THAT NO TIME HAD
BEEN ALLOWED FOR CHANGING CLOTHES; AND AFTER FEBRUARY 15, 1976, WERE
NOT ALLOWED TO CHANGE CLOTHES ON DUTY TIME WHETHER OR NOT THEY COULD DO
SO IN THE TIME ALLOWED FOR WASH-UP. USE OF TIME ALLOWED FOR WASH-UP TO
CHANGE CLOTHES WAS NEVER AUTHORIZED, SUCH PRACTICE WAS AN ABUSE OF THE
AUTHORIZATION GRANTED, AND THE REFUSAL TO PERMIT THE CHANGING OF
CLOTHING DURING TIME ALLOWED FOR WASH-UP WAS NOT A CHANGE OF POLICY.
11. SINCE AT LEAST 1964, REGULATIONS HAVE REQUIRED THAT TECHNICIANS
WEAR THE APPROPRIATE UNIFORM IN THE PERFORMANCE OF THEIR NORMAL
TECHNICIAN DUTIES (ANGR 40-01, AGOPA SUP 1, SEPTEMBER 21, 1964, RES.
EXH. 2). SEE, ALSO, TECHNICIAN INFORMATION LETTER 5-69, DECEMBER 4,
1969 (RES. EXH. 3); TECHNICIAN PERSONNEL PAMPHLET 904, MAY 25, 1972,
SECTION 2-4 (RES. EXH. 4) TPP 904 SUPPLEMENT 1, APRIL 1, 1973 (RES. EXH.
5). REFERENCE WAS MADE IN ANGR 40-01, AGOPA SUPP 1 AND IN TECHNICIAN
INFORMATION LETTER 5-69 TO AFM 35-10 AND THE LATTER ALSO REFERRED TO AR
670-5. TPP 904 AND SUPPLEMENT 1 THERETO REFERRED TO NGR 690-2/ANGR
40-01. WING REGULATION 35-2, DECEMBER 13, 1972, SIGNED BY GENERAL
PHILLIPY. (RES. EXH. 1) ALSO SPECIFICALLY PROVIDED THAT, "AIR NATIONAL
GUARD TECHNICIANS IN THE EXCEPTED SERVICE WILL WEAR THE MILITARY UNIFORM
APPROPRIATE TO THEIR FEDERALLY RECOGNIZED GRADE WHEN PERFORMING
TECHNICIAN DUTIES.", REFERRED TO AFM 35-10, AND FURTHER STATED, IN PART,
THAT:
"4. DRESS AND APPEARANCE. EACH MEMBER OF THE AIR NATIONAL GUARD
MUST BE WELL GROOMED AND
INSURE THAT HIS PERSONAL APPEARANCE REFLECTS CREDIT UPON HIMSELF AND
THE AIR NATIONAL GUARD AT
ALL TIMES. EACH WILL MEET THE FOLLOWING REQUIREMENTS:
"A. APPEARANCE OF UNIFORMS. WHEN THE UNIFORM IS WORN, IT WILL BE
CLEAN, NEAT, CORRECT IN
DESIGN AND SPECIFICATIONS AND IN GOOD CONDITION. UNIFORMS WILL BE
KEPT BUTTONED AND SHOES
MUST BE SHINED AND IN GOOD REPAIR.
"B. PERSONAL APPEARANCE . . . MEN, SEE PARAGRAPH 1-12 AND ATTACHMENT
2, AFM 35-10.
"C. PERSONAL APPEARANCE . . . WOMEN, SEE PARAGRAPH 1-13, AFM 35-10.
"5. UNIFORM DISCIPLINE
"A. . . . THE STANDARDS OF UNIFORM AND PERSONAL APPEARANCE CONTAINED
IN AFM 35-10 WILL BE
STRICTLY OBSERVED.
"(RES. EXH. 1).
NEITHER PARTY OFFERED AFM 35-10 (NOW AFR 35-10). THE VARIOUS
REGULATIONS, ETC., SET FORTH ABOVE LEAVE NO DOUBT THAT BASE REGULATION
35-1 WAS, FOR THE MOST PART, A RESTATEMENT OF EXISTING POLICY. THE ONE
POINT OF DIFFERENCE WAS THE REQUIREMENT IN BASE REGULATION 35-1 THAT THE
SHIRT OF THE UTILITY UNIFORM BE WORN TUCKED INSIDE THE TROUSERS. THE
TESTIMONY SHOWS WITHOUT CONTRADICTION THAT PRIOR TO FORMULATION OF BASE
REGULATION 35-1 TECHNICIANS HAD BEEN FREE TO WEAR THE FATIGUE SHIRT
LOOSE, I.E., NOT TUCKED INSIDE THE TROUSERS; AND COMPLAINANT ASSERTED,
WHICH ASSERTION WAS NOT DENIED OR CHALLENGED BY RESPONDENT, THAT AIR
FORCE REGULATIONS MAKE THE MANNER OF WEARING OF THE UTILITY SHIRT (LOOSE
OR TUCKED IN THE TROUSERS) OPTIONAL WITH EACH BASE COMMANDER.
ACCORDINGLY, I FIND THAT BASE REGULATION 35-1 DID CHANGE THE LONG
ESTABLISHED BASE POLICY WITH RESPECT TO THE MANNER OF WEARING THE
UTILITY UNIFORM. DESPITE TESTIMONY THAT BASE REGULATION 35-1 CHANGED
PRIOR POLICY WITH RESPECT TO THE WEARING OF THE UTILITY CAP, BASE
REGULATION 35-1 EXPRESSLY CONDITIONED THIS REQUIREMENT ON "EXCEPT WHEN
SAFETY WOULD BE COMPROMISED" AND I FIND NO BASIS WHATEVER TO BELIEVE
THAT ANY CHANGE IN POLICY WAS REPRESENTED BY THE REQUIREMENT THAT THE
UTILITY CAP BE WORN OUTDOORS, EXCEPT WHEN SAFETY WOULD BE COMPROMISED,
AS SUCH REQUIREMENT WAS NO MORE THAN A RESTATEMENT OF THE LONG
ESTABLISHED REQUIREMENT THAT THE APPROPRIATE MILITARY UNIFORM BE WORN
WHEN PERFORMING TECHNICIAN DUTIES.
12. COLONEL ROSENBERG, CHIEF OF SUPPORT SERVICES AND MANAGEMENT
ADVISOR ON LABOR MANAGEMENT RELATIONS, TESTIFIED THAT THERE HAD BEEN A
NUMBER OF ADVERSE ACTIONS PERTAINING TO UNIFORMS AND RELATED MATTERS
PRIOR TO ISSUANCE OF THE FEBRUARY 15, 1976, DIRECTIVES AND THAT THERE
HAD BEEN NONE SINCE ISSUANCE OF THE FEBRUARY 15, 1976, DIRECTIVES. IN
1972, A TECHNICIAN HAD BEEN TERMINATED BECAUSE OF UNIFORM (HAIR CUT)
VIOLATION AND IN 1971, TWO TECHNICIANS HAD BEEN GIVEN LEAVE WITHOUT PAY
FOR UNIFORM (HAIR CUT) VIOLATIONS. THE FEBRUARY 15, 1976, DIRECTIVES
MADE NO CHANGE IN THE ENFORCEMENT OF EXISTING BASE POLICY WITH RESPECT
TO UNIFORM VIOLATIONS OR VIOLATIONS OF THE WORK DAY.
13. THERE ARE REFERENCES IN BASE REGULATION 35-1 TO GROOMING
STANDARDS AND COMPLAINANT OBJECTED TO THE FAILURE TO SPELL OUT, RATHER
THAN BY REFERENCE TO AF REGULATIONS, STANDARDS FOR WEAR OF UNIFORMS BY
FEMALES; BUT, AS THESE MATTERS WERE NOT LITIGATED, NO FURTHER
CONSIDERATION TO THEM WILL BE GIVEN.
CONCLUSIONS
1. CHANGE IN MANNER OF WEARING UTILITY UNIFORM. PRIOR TO THE
ISSUANCE OF BASE REGULATION 35-1, THE BASE POLICY AT PITTSBURGH HAD BEEN
TO PERMIT THE SHIRT OF THE UTILITY UNIFORM TO BE WORN LOOSE. THE DRAFT
REGULATION PLAINLY ANNOUNCED THAT, "WHEN WEARING THE UTILITY UNIFORM,
THE SHIRT WILL ALWAYS BE WORN TUCKED INSIDE THE TROUSERS" AND THE
PHRASE, AS SHOWN, WAS UNDERSCORED FOR EMPHASIS. RESPONDENT ASSERTED
THAT BASE REGULATION 35-1 CONSTITUTED NO CHANGE IN EXISTING POLICY BUT,
IF IT DID, DECLINED TO SAY WHETHER IT ASSERTED THAT SUCH CHANGE WAS
PURSUANT TO THE RESERVED RIGHTS OF MANAGEMENT. NO PROVISION OF SECTION
11(B) OR 12(A) OF THE ORDER REMOVED THE CHANGE IN BASE POLICY WITH
RESPECT TO THE MANNER OF WEARING THE UTILITY UNIFORM FROM THE OBLIGATION
TO NEGOTIATE PURSUANT TO SECTION 11(A) OF THE ORDER. RESPONDENT GAVE
NOTICE OF THE PROPOSED REGULATION TO THE STATE CHAIRMAN OF THE STATE
COUNCIL AND CHIEF STEWARD KREPITCH TESTIFIED THAT HE PASSED THE DRAFT
REGULATION UP TO THE STATE COUNCIL /3/ AND THE CHIEF NEGOTIATOR FOR
STATE COUNCIL, MR. OWSINSKI, TESTIFIED THAT HE ADVISED MESSRS. OLECK AND
KREPITCH TO DRAFT AND FORWARD IMMEDIATELY A LETTER TO GENERAL PHILLIPY
INDICATING THAT THIS MATTER WAS NEGOTIABLE AT THE STATE LEVEL AND NOT AT
THE LOCAL LEVEL. SGT. KREPITCH DID SO BY HIS LETTER DATED JANUARY 22,
1976, IN WHICH HE STATED, IN PART, AS FOLLOWS:
" . . . ANY DIRECTIVE . . . BY ANY BASE COMMANDER, AT THIS TIME IS
APPROXIMATELY FOUR YEARS
TOO LATE. AS ESTABLISHED BY THE STATE COUNCIL OF ACT AND WITH THE
ADJUTANT GENERAL OF
PENNSYLVANIA, ALL MATTERS OF POLICY AND DIRECTIVES ARE PROPOSED,
NEGOTIATED AND PROMULGATED AT
THAT LEVEL. FURTHERMORE, AS BEING ONE OF THE ISSUES THAT HAS SENT
THE PROPOSED CONTRACT BACK
TO THE IMPASS PANEL, DEPARTMENT OF LABOR, TWICE, WE FEEL AT THIS
TIME, THAT NO ONE SHORT OF
THE FEDERAL LABOR DEPARTMENT HAS THE POWER AND/OR AUTHORITY TO PASS
JUDGMENT ON THIS
ISSUE." (COMP. EXH. 4).
WHILE "MILITARY UNIFORMS", I.E., THE UNIONS' DEMAND THAT NO
BARGAINING UNIT TECHNICIANS BE REQUIRED TO WEAR THE MILITARY UNIFORM
WHILE PERFORMING CIVILIAN TECHNICIAN DUTIES, UNQUESTIONABLY HAD BEEN A
DEMAND IN CONTRACT NEGOTIATIONS AT THE STATE LEVEL, IT IS EQUALLY
CERTAIN THAT THE PROPOSED CHANGE IN BASE POLICY AT PITTSBURGH HAD NOT
BEEN AN ISSUE EITHER IN NEGOTIATION OR BEFORE THE FEDERAL SERVICE
IMPASSES PANEL. /4/ DESPITE NOTICE OF THE PROPOSED BASE REGULATION,
COMPLAINANT NEVER REQUESTED BARGAINING ON THE PROPOSED BASE REGULATION.
INDEED, WHILE ASSERTING THAT "THESE ARE CHANGES IN WORK CONDITIONS",
COMPLAINANT DID NOT SPECIFY ANY PORTION OF PROPOSED BASE REGULATION 35-1
WHICH CONSTITUTED A CHANGE IN EXISTING BASE POLICY; NEVERTHELESS, I
HAVE FOUND THAT BASE REGULATION 35-1 DID CONSTITUTE A CHANGE IN BASE
POLICY WITH RESPECT TO THE MANNER OF WEARING THE UTILITY SHIRT "TUCKED
INSIDE THE TROUSERS". AS THIS REPRESENTED A CHANGE IN BASE POLICY AND
SUCH PROPOSED REQUIREMENT WAS A NEGOTIABLE ITEM WITHIN THE MEANING OF
SECTION 11(A) OF THE ORDER, RESPONDENT WAS OBLIGATED TO NOTIFY
COMPLAINANT PRIOR TO MAKING ITS FINAL DETERMINATION OR DECISION TO MAKE
THIS CHANGE IN POLICY AND, UPON REQUEST, TO MEET AND CONFER IN GOOD
FAITH WITH COMPLAINANT. SOUTHEAST EXCHANGE REGION OF THE ARMY AND AIR
FORCE EXCHANGE SERVICE, ROSEWOOD WAREHOUSE, COLUMBIA, SOUTH CAROLINA,
A/SLMR NO. 656 (1976). IN HIS LETTER OF JANUARY 16, 1976, TO CHIEF
STEWARD KREPITCH, GENERAL PHILLIPY STATED, IN PART:
"1. ATTACHED FOR YOUR COMMENTS . . . ARE DRAFTS OF . . . PROPOSED
DIRECTIVES . . .
"2. YOUR COMMENTS WILL BE GIVEN FULL CONSIDERATION . . . "
. . . .
"4. YOUR REPLY WOULD BE APPRECIATED BY NOT LATER THAN 23 JANUARY
1976. NON RECEIPT OF ANY
REPLY WILL INDICATE COMPLETE CONCURRENCE AND DIRECTIVES WILL BE
ISSUED AS
WRITTEN." (COMP. EXH. 1).
CHIEF STEWARD KREPITCH DID REPLY BY LETTER DATED JANUARY 22, 1976;
GENERAL PHILLIPY MADE NO REPLY AND GAVE COMPLAINANT NO NOTICE OF HIS
FINAL DECISION TO CHANGE THE MANNER OF WEARING THE UTILITY UNIFORM, BUT
ISSUED BASE REGULATION 35-1 ON FEBRUARY 15, 1976. SGT. OLECK, THEN
STATE CHAIRMAN OF ACT, TESTIFIED THAT HE FIRST RECEIVED BASE REGULATION
35-1, AS ISSUED, ON FEBRUARY 25, 1976, FROM HIS SUPERVISOR, ALTHOUGH
TECHNICIANS HAD BEEN INFORMED IN A SUPERVISORS' MEETING A FEW DAYS
EARLIER THAT NEW POLICIES WERE COMING OUT. BECAUSE RESPONDENT HAD
SOLICITED THE COMMENTS OF COMPLAINANT; HAD STATED THAT SUCH COMMENTS,
IF ANY, WOULD BE GIVEN FULL CONSIDERATION; AND HAD FURTHER STATED, BY
CLEAR IMPLICATION, THAT "DIRECTIVES WILL BE ISSUED AS WRITTEN" ONLY IN
THE ABSENCE OF REPLY, RESPONDENT WAS OBLIGATED TO NOTIFY COMPLAINANT
PRIOR TO MAKING ITS FINAL DECISION AND, UPON REQUEST, TO MEET AND CONFER
IN GOOD FAITH WITH COMPLAINANT. RESPONDENT'S ISSUANCE OF BASE
REGULATION 35-1 ON FEBRUARY 15, 1976, DEPRIVED COMPLAINANT OF ANY
OPPORTUNITY TO REQUEST NEGOTIATIONS AFTER RESPONDENT'S FINAL DECISION TO
CHANGE THE MANNER OF WEARING THE UTILITY UNIFORM AND PRIOR TO SUCH
CHANGE IN POLICY BEING PLACED IN EFFECT. DELIVERY OF A COPY OF BASE
REGULATION 35-1 AFTER IT HAD BEEN ISSUED AND MADE EFFECTIVE WAS
NOTIFICATION OF A FAIT ACCOMPLI AND DID NOT PROVIDE COMPLAINANT WITH ANY
OPPORTUNITY TO ENGAGE IN MEANINGFUL NEGOTIATIONS PRIOR TO A CHANGE IN
BASE POLICY WITH RESPECT TO THE WEARING OF WEARING THE UTILITY UNIFORM.
ACCORDINGLY, RESPONDENT'S UNILATERAL CONDUCT IN THIS REGARD WAS IN
DEROGATION OF ITS OBLIGATION TO MEET AND CONFER IN GOOD FAITH AND SUCH
CONDUCT THEREBY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER.
SOUTHEAST EXCHANGE REGION OF THE ARMY AND AIR FORCE EXCHANGE SERVICE,
ROSEWOOD WAREHOUSE, COLUMBIA, SOUTH CAROLINA, SUPRA.
COMPLAINANT HAD NOTICE ON JANUARY 16, 1976, OF THE PROPOSED CHANGE IN
BASE POLICY WITH REGARD TO THE MANNER OF WEARING THE UTILITY UNIFORM,
HAD AMPLE OPPORTUNITY TO REQUEST THAT RESPONDENT MEET AND CONFER PRIOR
TO THE CHANGE IN POLICY BEING MADE EFFECTIVE ON FEBRUARY 15, 1976, BUT
DESPITE SUCH NOTICE COMPLAINANT DID NOT AT ANY TIME AFTER JANUARY 16,
1976, SEEK TO MEET AND CONFER WITH RESPECT THERETO. CERTAINLY, THE
RECORD DOES NOT INDICATE ANY UNWILLINGNESS ON THE PART OF RESPONDENT TO
MEET AND CONFER HAD COMPLAINANT INDICATED A DESIRE TO DO SO. TO THE
CONTRARY, THE RECORD SHOWS AN AFFIRMATIVE POLICY ON THE PART OF GENERAL
PHILLIPY TO MEET AND CONFER, AS HE DID ON JANUARY 16, 1976, WHEN HE
DELIVERED THE PROPOSED DRAFT DOCUMENTS TO MR. OLECK. NOTWITHSTANDING
THE VIOLATION OF SECTION 19(A)(1) AND (6) ABOVE, I AM CONSTRAINED TO
CONCLUDE, PURSUANT TO THE DECISIONS OF THE ASSISTANT SECRETARY IN
SOUTHEAST EXCHANGE REGION OF THE ARMY AND AIR FORCE EXCHANGE SERVICE,
ROSEWOOD WAREHOUSE, COLUMBIA, SOUTH CAROLINA, SUPRA,; INTERNAL REVENUE
SERVICE, PHILADELPHIA SERVICE CENTER, PHILADELPHIA, PENNSYLVANIA, A/SLMR
NO. 771 (1976), EVEN THOUGH THESE DECISIONS INVOLVED IMPACT BARGAINING,
THAT RESPONDENT'S IMPLEMENTATION OF BASE REGULATION 35-1 ON FEBRUARY 15,
1976, DID NOT VIOLATE SECTION 19(A)(1) AND (6) OF THE ORDER. IN THE
CIRCUMSTANCES OF THIS CASE, SUCH RESULT MAY BE PARTICULARLY APT INASMUCH
AS, ABSENT NOTICE PRIOR TO ITS FINAL DECISION, AS MANDATED BY SOUTHEAST
EXCHANGE REGION OF THE ARMY AND AIR FORCE EXCHANGE SERVICE, ROSEWOOD
WAREHOUSE, COLUMBIA, SOUTH CAROLINA, SUPRA, IMPLEMENTATION OF BASE
REGULATION 35-1 WOULD NOT HAVE VIOLATED SECTION 19(A)(1) OR (6) BECAUSE
OF COMPLAINANT'S FAILURE TO REQUEST TO NEGOTIATE WITH REGARD THERETO
AFTER AMPLE NOTICE OF THE PROPOSED CHANGE IN POLICY. U.S. DEPARTMENT OF
AIR FORCE, NORTON AIR FORCE BASE, A/SLMR NO. 261 (1973); U.S.
DEPARTMENT OF TRANSPORTATION, FEDERAL HIGHWAY ADMINISTRATION, OFFICE OF
FEDERAL HIGHWAY PROJECTS, VANCOUVER, WASHINGTON, A/SLMR NO. 612 (1976);
ALABAMA NATIONAL GUARD, A/SLMR NO. 660 (1976).
2. TECHNICIAN WORK DAY. THIS PROPOSED DIRECTIVE, GIVEN TO
COMPLAINANT IN DRAFT ON JANUARY 16, 1976, WITH PROPOSED BASE REGULATION
35-1, WAS A RESTATEMENT AND REAFFIRMATION OF EXISTING BASE POLICY AND
PRACTICE. PRIOR POLICY HAD AUTHORIZED THE GRANTING OF REASONABLE TIME,
WHERE APPROPRIATE, TO WASH-UP. NO AUTHORIZATION HAD EVER BEEN GIVEN TO
CHANGE CLOTHING ON DUTY TIME AND THE REFUSAL, IN THIS PROPOSED
DIRECTIVE, TO ALLOW TIME DURING WORKING HOURS FOR CHANGING FROM CIVILIAN
ATTIRE INTO AND OUT OF MILITARY UNIFORM WAS NOT A CHANGE OF EXISTING
POLICY. NOR CAN ABUSE OF THE AUTHORIZATION GRANTED, NAMELY TO WASH-UP,
BY ISOLATED INDIVIDUALS CONSTITUTE AN EXCEPTION TO A LONG ESTABLISHED
POLICY WHICH WOULD REQUIRE RESPONDENT TO MEET AND CONFER INASMUCH AS THE
PROPOSED DIRECTIVE WAS MERELY A RESTATEMENT OF EXISTING BASE POLICY.
ACCORDINGLY, AS THE "TECHNICIAN WORK DAY" DIRECTIVE WAS A REAFFIRMATION
OF AN EXISTING POLICY AND PRACTICE, RESPONDENT WAS UNDER NO DUTY TO
BARGAIN WITH RESPECT THERETO PRIOR TO ITS IMPLEMENTATION. DEPARTMENT OF
THE NAVY, MARE ISLAND NAVAL SHIPYARD, VALLEJO, CALIFORNIA, A/SLMR NO.
736 (1976).
3. REAFFIRMATION OF BASE POLICY DURING NEGOTIATIONS. THE TWO
ACTIONS COMPLAINED OF CONCERNED THE AIR NATIONAL GUARD AT PITTSBURGH.
IN ISSUING BASE REGULATION 35-1 AND THE "TECHNICIAN WORK DAY" DIRECTIVE,
GENERAL PHILLIPY DID NOT ACT FOR, NOR PURPORT TO ACT FOR, THE ADJUTANT
GENERAL OR FOR THE PENNSYLVANIA NATIONAL GUARD. EXCEPT IN THE MANNER OF
WEARING THE UTILITY SHIRT, EACH WAS A RESTATEMENT AND REAFFIRMATION OF
EXISTING BASE POLICY AND PRACTICE. COMPLAINANT ASSERTS THAT THE
ISSUANCE OF SUCH DOCUMENTS, /5/ WHICH CONCERN ISSUES INVOLVED IN
STATEWIDE NEGOTIATIONS, IS A VIOLATION OF 19(A)(6) OF THE ORDER. IT WAS
CONCEDED BY SGT. KREPITCH THAT BASE REGULATION 35-1 AND THE "TECHNICIAN
WORK DAY" DIRECTIVE APPLIED ONLY TO THE PITTSBURGH OPERATION. UNDER THE
CIRCUMSTANCES, ISSUANCE OF A PROPOSED POLICY BY A BASE COMMANDER IS NOT,
IN AND OF ITSELF, A VIOLATION OF THE ORDER. IT IS CONCEIVABLE THAT SUCH
ACTION COULD CONSTITUTE A REFUSAL TO BARGAIN AT THE STATE LEVEL IF SUCH
ACTION DEMONSTRATED AN INTENT TO REFUSE TO BARGAIN AT THE STATE LEVEL;
BUT THERE WAS NOTHING CONTAINED IN GENERAL PHILLIPY'S LETTER OF JANUARY
16, 1976, IN HIS PROPOSED DRAFTS, OR IN THE TESTIMONY WHICH INFERRED
THAT HE WAS ACTING OTHER THAN IN HIS CAPACITY AS BASE COMMANDER, NOR WAS
THERE ANY BASIS ON WHICH, OR FROM WHICH, IT CAN POSSIBLY BE INFERRED
THAT ISSUANCE OF BASE REGULATION 35-1 OR THE "TECHNICIAN WORK DAY"
DIRECTIVE AT PITTSBURGH DEMONSTRATED AN INTENT BY THE ADJUTANT GENERAL
TO REFUSE TO BARGAIN.
AS TO THE CHANGE IN POLICY RESPECTING THE MANNER OF WEARING THE
UTILITY UNIFORM, COMPLAINANT HAD A RIGHT TO BARGAIN, UPON REQUEST, WHICH
IT DID NOT EXERCISE. IN ALL OTHER RESPECTS, THE PROPOSALS IN QUESTION
WERE MERELY A REAFFIRMATION OF EXISTING BASE POLICY AND PRACTICE AS TO
WHICH RESPONDENT WAS UNDER NO DUTY TO BARGAIN. EXISTING POLICY AND
PRACTICE ARE NOT AFFECTED BY THE PENDENCY OF NEGOTIATIONS,
NOTWITHSTANDING THAT DEMANDS TO CHANGE SUCH POLICY AND PRACTICE ARE
INVOLVED IN THOSE NEGOTIATIONS. UNLESS AND UNTIL CHANGED, EXISTING
POLICY AND PRACTICE REMAIN FULLY EFFECTIVE.
COLONEL NILES, AT GENERAL PHILLIPY'S REQUEST, STATED AS TO PROPOSED
BASE REGULATION 35-1, THAT IT WOULD NOT CONSTITUTE A CHANGE IN WORKING
CONDITIONS, "PROVIDED IT DOES NOT GO BEYOND THE GUIDELINES OF THE
REGULATION"; AND AS TO THE TECHNICIAN WORK DAY" DIRECTIVE, THAT IT WAS
"CONSISTENT WITH NGB REGULATIONS" AND THAT "ANY CHANGE OF WORKING
CONDITIONS WHICH YOUR TECHNICIAN WORKDAY LETTER MAKES, WOULD BE TO BRING
YOUR BASE POLICY INTO COMPLIANCE WITH NATIONAL GUARD BUREAU
REGULATIONS." NOTHING CONTAINED IN HIS INDORSEMENT COULD POSSIBLY
SUPPORT AN INFERENCE THAT THE ADJUTANT GENERAL WOULD REFUSE TO BARGAIN
IN GOOD FAITH PURSUANT TO THE DECISION AND ORDER OF THE FEDERAL SERVICE
IMPASSES PANEL SUBSEQUENTLY ISSUED ON FEBRUARY 27, 1976. AS COMPLAINANT
RECOGNIZED, COLONEL NILES' POSITION HAD BEEN CONSISTENT, NAMELY, THAT
THE MATTER OF UNIFORMS, ETC., WAS CONTROLLED BY REGULATIONS OF HIGHER
AUTHORITY AND HAD PREVIOUSLY BEEN DETERMINED TO BE "NON-NEGOTIABLE".
THE FEDERAL SERVICE IMPASSES PANEL RECOGNIZED THIS POSITION BUT POINTED
OUT THAT THE COUNCIL RENDERS DECISIONS ON THE NEGOTIABILITY OF SPECIFIC
PROPOSALS AND THAT NOTHING FORECLOSES THE PENNSYLVANIA NATIONAL GUARD
FROM QUESTIONING THE NEGOTIABILITY OF ANY SPECIFIC PROPOSAL SUBMITTED IN
THE COURSE OF NEGOTIATIONS.
ACCORDINGLY, NEITHER THE PROPOSAL NOR THE IMPLEMENTATION OF THE BASE
REGULATION AND DIRECTIVE WAS PRECLUDED BY THE PENDENCY OF CONTRACT
NEGOTIATIONS.
RECOMMENDATION
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CERTAIN 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 EXECUTIVE ORDER 11491. IN
ALL OTHER RESPECTS, I RECOMMEND THE ALLEGATIONS OF THE COMPLAINT BE
DISMISSED.
RECOMMENDED ORDER
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 PENNSYLVANIA AIR NATIONAL
GUARD SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING A CHANGE IN POLICY WITH RESPECT TO THE MANNER OF
WEARING THE UTILITY UNIFORM OF CIVILIAN TECHNICIANS REPRESENTED BY THE
ASSOCIATION OF CIVILIAN TECHNICIANS AND EMPLOYED BY THE PENNSYLVANIA AIR
NATIONAL GUARD, WITHOUT NOTIFYING THE ASSOCIATION OF CIVILIAN
TECHNICIANS AND AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO MEET
AND CONFER ON THE DECISION TO EFFECTUATE SUCH A CHANGE.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) NOTIFY ASSOCIATION OF CIVILIAN TECHNICIANS OF ANY INTENDED CHANGE
IN POLICY WITH RESPECT TO THE MANNER OF WEARING THE UTILITY UNIFORM BY
UNIT EMPLOYEES OF THE PENNSYLVANIA AIR NATIONAL GUARD AND, UPON REQUEST,
MEET AND CONFER IN GOOD FAITH ON SUCH INTENDED CHANGE.
(B) POST AT THE FACILITY OF THE PENNSYLVANIA AIR NATIONAL GUARD AT
THE GREATER PITTSBURGH AIRPORT, CARAOPOLIS PENNSYLVANIA, 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
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 30 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: FEBRUARY 7, 1977
WASHINGTON, D.C.
/1/ PENNSYLVANIA STATE COUNCIL, ASSOCIATION OF CIVILIAN TECHNICIANS,
INC. (STATE COUNCIL), REPRESENTS WAGE GRADE AND GENERAL SCHEDULE
EMPLOYEES IN A STATEWIDE BARGAINING UNIT INCORPORATING BOTH ARMY AND AIR
COMPONENTS OF THE PENNSYLVANIA NATIONAL GUARD (GUARD). NEGOTIATIONS FOR
AN INITIAL AGREEMENT BEGAN ON FEBRUARY 1, 1974, BETWEEN THE GUARD AND
THE STATE COUNCIL; SUBSTANTIAL PROGRESS WAS MADE BY THE PARTIES IN
NEGOTIATIONS, BUT AN IMPASSE WAS REACHED AND THE STATE COUNCIL FILED A
REQUEST WITH THE FEDERAL SERVICE IMPASSES PANEL WHICH RESULTED IN A
PANEL REPORT AND RECOMMENDATION FOR SETTLEMENT, DATED NOVEMBER 6, 1975
(CASE NO. 75 FSIP 7); AND, PURSUANT TO NOTICE OF HEARING, ORAL ARGUMENT
ON JANUARY 26, 1976; AND ON FEBRUARY 27, 1976, A DECISION AND ORDER
THAT, INTER ALIA,
"THE PARTIES SHALL INCLUDE IN THEIR AGREEMENT A PROVISION TO THE
EFFECT THAT THE UNION
(STATE COUNCIL) MAY AT ANY TIME WITHIN 180 DAYS FROM THE EFFECTIVE
DATE OF THE AGREEMENT
NOTIFY THE EMPLOYER (GUARD) OF ITS DESIRE TO ENGAGE IN NEGOTIATIONS
ON THE SUBJECTS OF
. . . (2) MILITARY UNIFORMS; (WHICH INCLUDED THE STATE COUNCIL'S
DEMAND FOR OFFICIAL TIME FOR
CHANGING FROM AND TO CIVILIAN ATTIRE) AND THAT THE PARTIES WILL
COMMENCE NEGOTIATION WITHIN A
REASONABLE PERIOD OF TIME AFTER RECEIPT OF SUCH NOTICE. . . . "
(COMP. EXH. 5).
/2/ THE ACTING REGIONAL ADMINISTRATOR, MR. JOSEPH T. SENGE, PURSUANT
TO SECTION 206.7 OF THE REGULATIONS, APPROVED COMPLAINANT'S REQUEST OF
OCTOBER 18, 1976, FOR THE APPEARANCE OF ONLY SEVEN WITNESSES. HE
STATED.
"I AM DENYING YOUR REQUEST FOR THE APPEARANCE OF THOMAS J. OWSINKI,
INASMUCH AS HE IS THE
CURRENT STATE CHAIRMAN OF THE UNION, AND THUS WOULD BE IN A
REPRESENTATIVE CAPACITY AT THE
HEARING".
"YOU MAY, OF COURSE, RENEW YOUR REQUESTS FOR THESE WITNESSES BEFORE
THE ADMINISTRATIVE LAW
JUDGE."
STATE CHAIRMAN OWSINSKI APPEARED VOLUNTARILY; HOWEVER, COMPLAINANT
RENEWED ITS REQUEST AS TO MR. OWSINSKI. COMPLAINANT, IN AN EFFORT TO
AVOID THE ACTING REGIONAL ADMINISTRATOR'S STATEMENT CONCERNING MR.
OWSINSKI'S "REPRESENTATIVE CAPACITY" HAD MR. OWSINSKI SIT IN THE
AUDIENCE UNTIL CALLED AS A WITNESS.
THE ASSISTANT SECRETARY, IN BELLINGHAM FLIGHT SERVICE STATION,
FEDERAL AVIATION ADMINISTRATION, N.W. REGION DEPARTMENT OF
TRANSPORTATION, BELLINGHAM, WASHINGTON, A/SLMR NO. 597 (1975), HAS
STATED:
" . . . 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 REGULATIONS THAT PRIOR
APPROVAL OF A 'REQUEST FOR
APPEARANCE OF WITNESSES' BE OBTAINED BEFORE ANY EMPLOYEES IS GRANTED
SUCH OFFICIAL TIME AND
EXPENSES AS ARE DESCRIBED IN SECTION 206.7(G) OF THE ASSISTANT
SECRETARY'S REGULATIONS."
UNDER THE CIRCUMSTANCES, AS MR. OWSINSKI APPEARED AT THE HEARING
VOLUNTARILY AND TESTIFIED VOLUNTARILY, IT WOULD BE INAPPROPRIATE TO
ENTERTAIN COMPLAINANT'S REQUEST AND, ACCORDINGLY COMPLAINANT'S MOTION IS
DENIED.
/3/ MR. KREPITCH STATED TO THE "STATE COUNCIL CHAIRMAN" BUT THIS WAS
THEN MR. OLECK. IT IS APPARENT THAT HE REFERRED TO MR. THOMAS J.
OWSINSKI, THEN CHIEF NEGOTIATOR FOR THE STATE COUNCIL; LATER, ALSO,
STATE CHAIRMAN.
/4/ THE PANEL REPORT AND RECOMMENDATIONS FOR SETTLEMENT, CASE NO. 75
FSIP 7, WAS ISSUED NOVEMBER 6, 1975. THE DECISION AND ORDER IN CASE NO.
75 FSIP 7 STATES THAT THE PANEL WAS ADVISED ON DECEMBER 1, 1975, THAT
DESPITE FURTHER SETTLEMENT EFFORTS, THE DISPUTE REMAINED UNRESOLVED AND
PURSUANT TO NOTICE ORAL ARGUMENT WAS HELD ON JANUARY 26, 1976.
/5/ AGAIN, IT MUST BE EMPHASIZED THAT THE ISSUE, AND ONLY ISSUE,
BEFORE ME (ASS'T. SEC. EXH. 1) IS THE ACTION BY GENERAL PHILLIPY ON, OR
ABOUT FEBRUARY 15, 1976. ISSUANCE OF THE MARCH 22, 1976, SUPPLEMENT TO
NATIONAL GUARD BUREAU TECHNICIAN PERSONNEL MANUAL (RESPONDENT'S EXHIBIT
7 FOR IDENTIFICATION) WAS NOT AN ISSUE IN THIS PROCEEDING AND THE
PROFFERED EXHIBIT WAS REJECTED.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS AND IN ORDER TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
AMENDED
LABOR RELATIONS IN THE FEDERAL SERVICE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REFUSE TO MEET AND CONFER IN GOOD FAITH BY INSTITUTING A
CHANGE IN POLICY WITH RESPECT TO THE MANNER OF WEARING THE UTILITY
UNIFORM BY EMPLOYEES OF THE PENNSYLVANIA AIR NATIONAL GUARD EXCLUSIVELY
REPRESENTED BY THE ASSOCIATION OF CIVILIAN TECHNICIANS AND AFFORDING THE
ASSOCIATION OF CIVILIAN TECHNICIANS THE OPPORTUNITY TO MEET AND CONFER
ON THE DECISION TO EFFECTUATE SUCH CHANGE.
WE WILL NOTIFY THE ASSOCIATION OF CIVILIAN TECHNICIANS OF ANY
INTENDED CHANGE IN POLICY WITH RESPECT TO THE MANNER FOR WEARING THE
UTILITY UNIFORM BY UNIT EMPLOYEES OF THE PENNSYLVANIA AIR NATIONAL GUARD
AND, UPON REQUEST, MEET AND CONFER IN GOOD FAITH ON SUCH INTENDED
CHANGE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
(AGENCY OR ACTIVITY)
DATED: . . . BY . . .
COMMANDING OFFICER
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
REGIONAL ADMINISTRATOR, LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED
STATES DEPARTMENT OF LABOR, WHOSE ADDRESS IS: ROOM 14120 GATEWAY
BUILDING, 3535 MARKET STREET, PHILADELPHIA, PENNSYLVANIA 19104.
7 A/SLMR 865; P. 576; CASE NO. 72-6060; JULY 20, 1977.
JULY 20, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
MARINE CORPS EXCHANGE 8-2,
MARINE CORPS AIR STATION,
EL TORO, CALIFORNIA,
A/SLMR NO. 865
THIS CASE AROSE AS A RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT
FILED BY THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R-12185
(NAGE) ALLEGING, IN SUBSTANCE, THAT THE RESPONDENT VIOLATED SECTION
19(A)(1) AND (2) OF THE ORDER BY ITS ACTIONS AGAINST AN EMPLOYEE,
INCLUDING INTERFERENCE WITH HER RIGHT TO JOIN A LABOR ORGANIZATION AND
TERMINATION OF HER EMPLOYMENT BECAUSE OF HER UNION MEMBERSHIP.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE TERMINATION OF THE
EMPLOYEE'S EMPLOYMENT WAS NOT IN VIOLATION OF SECTION 19(A)(2) OF THE
ORDER AS IT WAS NOT RELATED TO HER UNION ACTIVITIES. HOWEVER, THE
ADMINISTRATIVE LAW JUDGE FOUND THAT THE MANAGER OF SNACK BARS 2 AND 3,
WHOM HE FOUND TO BE A SUPERVISOR, VIOLATED SECTION 19(A)(1) BY STATING
TO THE EMPLOYEE INVOLVED NOT ONLY HER OWN HOSTILE VIEWS OF UNIONISM BUT
ALSO BY ALLEGING THAT THE FOOD SERVICE MANAGER WOULD NOT LIKE THE
EMPLOYEE JOINING THE UNION AND FIND A WAY TO GET RID OF THE EMPLOYEE IF
SHE DID GO AHEAD AND JOIN THE UNION.
NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE ASSISTANT
SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
ADMINISTRATIVE LAW JUDGE AND HE ORDERED THAT THE RESPONDENT CEASE AND
DESIST FROM THE CONDUCT AND VIOLATIVE AND THAT IT TAKE CERTAIN
AFFIRMATIVE ACTIONS.
MARINE CORPS EXCHANGE 8-2,
MARINE CORPS AIR STATION,
EL TORO, CALIFORNIA
RESPONDENT
CASE NO. 72-6060
AND
COMPLAINANT
DECISION AND ORDER
ON APRIL 18, 1977, ADMINISTRATIVE LAW JUDGE MILTON KRAMER 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 CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER. NO EXCEPTIONS WERE FILED 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, AND NOTING PARTICULARLY
THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE ADMINISTRATIVE LAW
JUDGE' FINDINGS, CONCLUSIONS AND RECOMMENDATIONS. /1/
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 MARINE CORPS
EXCHANGE 8-2, MARINE CORPS AIR STATION, EL TORO, CALIFORNIA, SHALL:
1. CEASE AND DESIST FROM:
INTERFERING WITH, RESTRAINING, OR COERCING ANY EMPLOYEE IN THE
EXERCISE OF HIS RIGHT TO JOIN A LABOR ORGANIZATION.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) POST AT ITS 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 EXCHANGE OFFICER 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
EXCHANGE 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.
IT IS FURTHER ORDERED THAT THE COMPLAINT INSOFAR AS IT ALLEGES A
VIOLATION OF SECTION 19(A)(2) OF THE ORDER BE, AND IT HEREBY IS,
DISMISSED.
DATED, WASHINGTON, D.C.
JULY 20, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ WITH REGARD TO THE REMEDY, IN MY VIEW, IT WOULD NOT EFFECTUATE
THE PURPOSES OF THE ORDER IN THE CIRCUMSTANCES OF THIS CASE TO LIMIT THE
POSTING OF THE REMEDIAL NOTICE AS RECOMMENDED BY THE ADMINISTRATIVE LAW
JUDGE.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS AND IN ORDER TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
AMENDED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE OF HIS RIGHT TO JOIN A LABOR ORGANIZATION.
MARINE CORPS EXCHANGE 8-2
DATED:
BY:
EXCHANGE OFFICER
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
REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, WHOSE
ADDRESS IS: ROOM 9061, FEDERAL BUILDING, 450 GOLDEN GATE AVENUE, SAN
FRANCISCO, CALIFORNIA 94102.
U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
SUITE 700-1111 20TH STREET, N.W.
WASHINGTON, D.C. 20036
IN THE MATTER OF
MARINE CORPS EXCHANGE 8-2
MARINE CORPS AIR STATION
EL TORO, CALIFORNIA
RESPONDENT
CASE NO. 72-6060
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES LOCAL R 12-185
COMPLAINANT
ANTHONY SERRITELLO, ESQ.
ROBERT F. GRIEM, ESQ.
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES
3300 WEST OLIVE AVENUE, SUITE A
BURBANK, CALIFORNIA 91505
FOR THE COMPLAINANT
JAMES C. CAUSEY, ESQ.
DEPARTMENT OF THE NAVY
880 FRONT STREET, ROOM 4-S-21
SAN DIEGO, CALIFORNIA 92188
BEFORE: MILTON KRAMER
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491 AS AMENDED, ALLEGING
VIOLATIONS OF SECTIONS 19(A)(1) AND (2) OF THE EXECUTIVE ORDER. THE
VIOLATIONS WERE ALLEGED TO CONSIST OF DISCRIMINATING AGAINST AND
TERMINATING THE EMPLOYMENT OF OLGA HAYES BECAUSE OF HER UNION MEMBERSHIP
AND WITH HER RIGHT, FREELY AND WITHOUT FEAR OF REPRISAL, TO JOIN A LABOR
ORGANIZATION.
FACTS
THE COMPLAINANT IS THE CERTIFIED EXCLUSIVE REPRESENTATIVE OF A UNIT
OF ABOUT 400 OF THE RESPONDENT'S EMPLOYEES. IT WAS CERTIFIED JULY 31,
1975 AFTER AN ELECTION EARLIER THAT MONTH. THE RESPONDENT CONDUCTS 17
OPERATIONS INCLUDING THREE SNACK BARS ONE OF WHICH IS ON THE GOLF COURSE
AND ANOTHER AT THE AIR TOWER. LEO M. MCCRARY IS THE FOOD SERVICE
MANAGER WITH OVER 100 EMPLOYEES UNDER HIM. THE SNACK BARS EMPLOY ABOUT
FOUR EMPLOYEES EACH SOME OF THEM PART-TIME. HELEN M. WARREN IS THE
MANAGER OF THE SNACK BARS AT THE GOLF COURSE AND AIR TOWER. AS SUCH SHE
WORKS AT BOTH SNACK BARS FURNISHING FOOD SERVICE AND DIRECTING THE OTHER
EMPLOYEES AT THOSE SNACK BARS. SHE KEEPS THEIR TIME CARDS AND PREPARES
BI-WEEKLY WORK SCHEDULES FOR THE OTHER EMPLOYEES. THE WORK SCHEDULE SHE
PREPARES ARE GENERALLY APPROVED BY MCCRARY OR HIS ASSISTANT MANAGER OF
FOOD SERVICE, LILLY C. LITTLE. WARREN IS A SALARIED EMPLOYEE WHO WORKS
SUCH HOURS AS SHE FINDS NECESSARY. SHE WORKS FIVE, SIX, AND RECENTLY
SOMETIMES SEVEN DAYS PER WEEKS AS THE SITUATION PERMITS. SHE DOES NOT
HAVE AUTHORITY TO HIRE, SUSPEND, DISCHARGE, PROMOTE, REWARD, OR
DISCIPLINE THE EMPLOYEES SHE DIRECTS.
SNACK BAR 2, THE ONE ON THE GOLF COURSE, GENERALLY HAS ABOUT FOUR OR
FIVE EMPLOYEES, SOME FULL-TIME AND SOME PART-TIME, IN ADDITION TO
WARREN. IN DECEMBER 1973 OLGA HAYES WAS EMPLOYED BY THE RESPONDENT TO
WORK PART-TIME AT THE SNACK BAR AS A "BUSBOY". LATER THAT CATEGORY OF
EMPLOYEE WAS ELIMINATED AND ALL EMPLOYEES AT THE SNACK BARS WERE
CLASSIFIED AS FOOD SERVICE WORKERS. THEY WERE HOURLY EMPLOYEES AND EACH
PERFORMED ALL ASPECTS OF THE OPERATION.
WHEN FIRST EMPLOYED HAYES WORKED SIX DAYS PER WEEK FOR ABOUT 38
HOURS. THE GOLF COURSE WAS OPEN SIX DAYS PER WEEK AND WAS CLOSED ON
MONDAYS. THE EMPLOYEES AT THE SNACK BARS WORKED FIVE, SIX, OR SEVEN
DAYS AS THE NEEDS CALLED FOR.
IN JUNE 1974 HAYES WAS ABSENT FROM WORK FOR THREE WEEKS BECAUSE OF
SICKNESS. ON HER RETURN SHE SAID SHE COULD NOT WORK SIX DAYS AND ASKED
TO BE PUT ON A FULL-TIME FIVE-DAY WEEK, AND HER REQUEST WAS GRANTED.
IN SEPTEMBER OR OCTOBER 1975 HAYES BECAME A MEMBER OF THE
COMPLAINANT. SHE EXECUTED A DUES-DEDUCTION AUTHORIZATION EFFECTIVE WITH
HER WAGES FOR THE PAY PERIOD ENDING OCTOBER 11, 1975. WARREN IS AN
OUTSPOKEN PERSON GIVEN TO STRONG LANGUAGE AND, AT TIMES, SPEAKING IN A
LOUD VOICE. HAYES WAS FAMILIAR WITH THESE CHARACTERISTICS OF WARREN.
WHEN WARREN LEARNED OF HAYES HAVING EXECUTED A DUES-DEDUCTION
AUTHORIZATION SHE ATTEMPTED TO PERSUADE HAYES NOT TO JOINT THE UNION IN
A LOUD VOICE AND HER CUSTOMARY STRONG LANGUAGE. THE EVIDENCE IS IN
SHARP CONFLICT ON THIS POINT. HAYES TESTIFIED THAT WARREN MADE SUCH
ATTEMPT, AND WARREN DENIED IT. ENGLISH IS NOT HAYES' NATIVE TONGUE AND
SHE HAS DIFFICULTY COMMUNICATING IN THAT LANGUAGE. IN ADDITION SHE WAS
NOT ENTIRELY CREDIBLE ON ALL POINTS. BUT ON THIS POINT I CREDIT HER
TESTIMONY FOR TWO REASONS: FIRST, BECAUSE THE PARTICULAR CONVERSATION
WAS CORROBORATED BY HER HUSBAND, WHO WAS PRESENT AND HAS NO DIFFICULTY
WITH THE ENGLISH LANGUAGE AND SECOND, BECAUSE A FORMER EMPLOYEE
TESTIFIED THAT DURING THE UNION ELECTION CAMPAIGN WARREN ENGAGED IN
ANTI-UNION CONDUCT. WARREN ALSO SAID THAT MCCRARY WOULD NOT LIKE HAYES'
JOINING THE UNION. /1/
IN OCTOBER OF 1975 IT WAS DECIDED TO HAVE THE GOLF COURSE OPEN SEVEN
DAYS PER WEEK AND MAJOR VAN HOOSE, THE EXCHANGE OFFICER, DIRECTED
MCCRARY TO MAKE ARRANGEMENTS FOR THE SNACK BAR TO BE OPEN SEVEN DAYS.
MCCRARY ASKED WARREN TO ARRANGE SUCH A SCHEDULE. WHEN WARREN REPORTED
BACK THAT SHE COULD DO IT WITH TWO ADDITIONAL EMPLOYEES ON A FIVE-DAY
WEEK FOR ALL, MCCRARY INSTRUCTED HER TO WORK OUT A SEVEN DAY SCHEDULE
UTILIZING ONLY THE PRESENT EMPLOYEES. WARREN DID SO BY SCHEDULING ALL
EMPLOYEES IN THAT SNACK BAR TO WORK SIX DAYS PER WEEK. HAYES REFUSED TO
WORK ON THAT SCHEDULE AND SHE AND WARREN WENT TO SEE MCCRARY. HAYES
ASKED FOR A UNION REPRESENTATIVE TO BE PRESENT BUT NONE WAS AVAILABLE.
IT WAS A SATURDAY AND THE PARTIES AGREED TO MEET AGAIN ON MONDAY WITH A
UNION STEWARD PRESENT.
THE FOLLOWING MONDAY HAYES AND WARREN WENT TO MR. MCCRARY'S OFFICE TO
MEET WITH HIM AND THE UNION STEWARD BUT THE STEWARD HAD ALREADY BEEN
THERE, HAD SEEN THE SCHEDULE, HAD TOLD MCCRARY HE THOUGHT THE SCHEDULE
WAS APPROPRIATE, AND THAT HE WOULD SO ADVISE HAYES. HAYES THEN WENT TO
SEE VAN HOOSE, THE EXCHANGE OFFICER. HE TOLD HAYES HE WOULD TRY TO WORK
OUT SOMETHING, BUT HE NEVER DID.
HAYES BECAME ILL IN NOVEMBER AND WENT ON SICK LEAVE. WHEN HER SICK
LEAVE WAS USED UP SHE WAS ASKED WHEN SHE WOULD RETURN. SHE WAS UNABLE
TO DO SO AND SAID SHE WOULD RETURN WHEN HER DOCTOR PERMITTED IT. ON
DECEMBER 17, 1975 VAN HOOSE ADDRESSED A MEMORANDUM TO HAYES. BECAUSE
SHE HAD USED ALL HER SICK LEAVE AND WAS UNABLE TO GIVE A DATE FOR HER
RETURN, HER EMPLOYMENT WAS TERMINATED FOR DISABILITY EFFECTIVE DECEMBER
30, 1975 IN ACCORDANCE WITH MARINE CORPS REGULATIONS. THE MEMORANDUM
STATED THAT AT SUCH TIME AS SHE SHOULD BE RELEASED BY HER DOCTOR THE
EXCHANGE WOULD CONSIDER HER RE-EMPLOYMENT CONSISTENT WITH HER PHYSICAL
CAPACITY AND THE STAFFING REQUIREMENTS OF THE EXCHANGE. IN JANUARY SHE
REPORTED SHE WAS READY TO RETURN. SEVERAL PART-TIME JOBS WERE OFFERED
TO HER BUT SHE REJECTED THEM.
MCCRARY DOES NOT HAVE THE AUTHORITY TO TERMINATE ANY EMPLOYEES'
EMPLOYMENT; ONLY VAN HOOSE HAS THAT AUTHORITY. THERE WAS NO PROBATIVE
EVIDENCE THAT MCCRARY HARBORS AN ANTI-UNION ANIMUS, AND NO EVIDENCE AT
ALL THAT VAN HOOSE BEARS SUCH AN ANIMUS.
DISCUSSION AND CONCLUSION
THE TERMINATION OF HAYES' EMPLOYMENT WAS NOT IN VIOLATION OF SECTION
19(A)(2) OF THE EXECUTIVE ORDER BECAUSE IT WAS NOT DISCRIMINATORY OR
RELATED TO HER UNION ACTIVITIES. SO FAR AS THE RECORD SHOWS HAYES'
UNION "ACTIVITIES" CONSISTED SOLELY OF BECOMING A MEMBER. THE
TERMINATION WAS MADE BY VAN HOOSE AND THE RECORD DOES NOT INDICATE THAT
HE EVEN KNEW SHE WAS A MEMBER OR THAT HE HAD ANY UNION ANIMUS. HE SAID
HE WAS TERMINATING HER EMPLOYMENT FOR DISABILITY IN ACCORDANCE WITH
MARINE REGULATIONS BECAUSE SHE WAS DISABLED, HAD USED UP HER SICK LEAVE,
AND WAS UNABLE TO GIVE A DATE FOR HER RETURN TO WORK. THERE IS NO
EVIDENCE OR EVEN CONTENTION THAT THE REGULATIONS DID NOT SO PROVIDE. HE
SAID ALSO THAT WHEN SHE SHOULD BE RELEASED BY HER DOCTOR FOR WORK THE
EXCHANGE WOULD BE GLAD TO CONSIDER HER RE-EMPLOYMENT CONSISTENT WITH HER
PHYSICAL ABILITY AND STAFFING REQUIREMENTS. SHE WAS IN FACT OFFERED
SEVERAL JOBS BUT REJECTED THEM BECAUSE THEY WERE PART-TIME. THERE WAS
NO EVIDENCE FULL-TIME JOBS WERE AVAILABLE. THE RECORD CANNOT SUPPORT A
CONCLUSION THAT HAYES' EMPLOYMENT WAS TERMINATED BECAUSE OF HER UNION
MEMBERSHIP OR WAS OTHERWISE DISCRIMINATORY.
THAT LEAVES THE ALLEGED VIOLATION OF SECTION 19(A)(1) IN WARREN
TRYING TO PERSUADE HAYES NOT TO BECOME A MEMBER OF THE COMPLAINANT IN
LATE SEPTEMBER OR EARLY OCTOBER 1975.
WARREN WAS A SUPERVISOR, ALTHOUGH A MINOR ONE. THAT CONCLUSION IS
NOT PREVENTED BY THE FACT THAT IN JULY 1975, FOR THE PURPOSES OF THE
ELECTION THAT RESULTED IN THE COMPLAINANT'S CERTIFICATION, THE PARTIES
AGREED THAT WARREN WAS A MEMBER OF THE UNIT AS A "FOOD SERVICE WORKER"
/2/ AND THEREFORE NOT A SUPERVISOR. THE EVIDENCE SHOWS THAT SHE MET ONE
OF THE CRITERIA OF BEING A SUPERVISOR SPECIFIED IN SECTION 2(C) OF THE
EXECUTIVE ORDER IN THAT SHE HAD THE AUTHORITY RESPONSIBILITY TO DIRECT
THE OTHER EMPLOYEES IN THE SNACK BAR. THE CRITERIA OF DETERMINING
SUPERVISORY STATUS ARE SPECIFIED IN SECTION 2(A) IN THE DISJUNCTIVE, AND
THE FACT THAT WARREN DID NOT MEET ANY OF THE OTHER CRITERIA OF
SUPERVISORY STATUS IS IRRELEVANT; AN INDIVIDUAL WHO POSSESSES THE
AUTHORITY TO PERFORM A SINGLE FUNCTION DESCRIBED IN SECTION 2(D) IS A
SUPERVISOR. UNITED STATES NAVAL WEAPONS CENTER, CHINA LAKE, CALIFORNIA
AND LOCAL NO. F-32, I.A.F.F., FLRC NO. 72A-11(1973).
THE FOREGOING CONCLUSION IS NOT FREE FROM DOUBT. WARREN, INSTEAD OF
BEING CLASSIFIED AS A SUPERVISOR, COULD ALMOST AS EQUALLY PERSUASIVELY
BE CONSIDERED NON-SUPERVISORY "LEAD MAN". BUT THE FACT THAT SHE WAS NOT
ONLY AT LEAST A "LEAD MAN" BUT ALSO PREPARED THE BI-WEEKLY WORK SCHEDULE
WHICH WERE ALMOST ALWAYS ROUTINELY APPROVED DECIDEDLY TIPS THE SCALES.
WHILE A SIMPLE ATTEMPT BY A SUPERVISOR TO PERSUADE AN EMPLOYEE HE
SUPERVISES NOT TO BECOME A MEMBER OF THE CERTIFIED UNION MIGHT NOT OF
ITSELF CONSTITUTE INTERFERENCE WITH THE EMPLOYEE'S RIGHT TO JOIN A LABOR
ORGANIZATION IN VIOLATION OF SECTION 19(A)(1), /3/ HERE WE HAVE MORE.
IN ADDITION TO STATING HER OWN HOSTILE VIEWS OF UNIONISM, WARREN SAID
THAT MCCRARY, THE FOOD SERVICE MANAGER, WOULD NOT LIKE HAYES' JOINING
THE UNION. THIS CROSSED THE LINE OF WARREN'S POSSIBLY PERMISSIBLE
EXPRESSION OF HER OWN VIEWS, AND IMPLIED A POSSIBLE REPRISAL BY HIGHER
AUTHORITY AND HAD A TENDENCY TO CONSTITUTE INTERFERENCE WITH HAYES'
RIGHT, ASSURED BY SECTION 1(A) OF THE EXECUTIVE ORDER, FREELY AND
WITHOUT FEAR OF PENALTY OR REPRISAL, TO JOIN A LABOR ORGANIZATION OR TO
REFRAIN FROM SUCH ACTIVITY. THE FACT THAT HAYES WAS NOT IN FACT
INTIMIDATED IS IRRELEVANT.
THE REMEDY
AN AGENCY OR ACTIVITY OR FACILITY, WHICHEVER IS THE AREA OF THE
RECOGNIZED UNIT, IF IS OF COURSE RESPONSIBLE FOR THE IMPROPER CONDUCT OF
ITS SUPERVISORS. NORMALLY, WHEN AN EMPLOYER COMMITS AN UNFAIR LABOR
PRACTICE, IT IS ORDERED TO CEASE AND DESIST FROM SUCH ACTIVITY AND TO
POST NOTICES THAT IT WILL NOT DO SO AGAIN.
BUT HERE THE VIOLATION WAS ONLY MARGINALLY A VIOLATION, AND WAS
COMMITTED BY ONE ONLY MARGINALLY A SUPERVISOR OF ABOUT EIGHT EMPLOYEES
SOME OF WHOM WERE PART-TIME, AND WAS COMMITTED AGAINST ONLY ONE SUCH
PERSON WHO IS NO LONGER, FOR UNRELATED REASONS, AN EMPLOYEE. TO REQUIRE
THE RESPONDENT TO ANNOUNCE THROUGHOUT ITS NUMEROUS FACILITIES TO ITS 400
CIVILIAN EMPLOYEES IN THE UNIT REPRESENTED BY COMPLAINANT THAT IT HAS
SINNED AND WILL SIN NO MORE WOULD BE OVERKILL. A REMEDY MORE SUITABLY
TAILORED TO THE FACTS OF THIS CASE WOULD REQUIRE THE POSTING TO BE DONE
ONLY IN SNACK BARS 2 AND 3, THE ONLY PLACES WHERE WARREN HAD ANY
AUTHORITY AT ALL. /4/ ACCORDINGLY, I WILL RECOMMEND THAT THE ASSISTANT
SECRETARY ISSUE THE ORDER ATTACHED HERETO AS APPENDIX A.
RECOMMENDATION
INSOFAR AS THE COMPLAINT ALLEGES A VIOLATION OF SECTION 19(A)(2) OF
EXECUTIVE ORDER 11491, AS AMENDED, IT SHOULD BE DISMISSED. WITH RESPECT
TO ITS ALLEGED VIOLATION OF SECTION 19(A)(1), I RECOMMEND THAT THE
ASSISTANT SECRETARY ISSUE THE ORDER ATTACHED HERETO AS APPENDIX A.
MILTON KRAMER
ADMINISTRATIVE LAW JUDGE
DATED: APRIL 18, 1977
WASHINGTON, D.C.
APPENDIX A
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 MARINE CORPS
EXCHANGE 8-2, MARINE CORPS AIR STATION, EL TORO, CALIFORNIA, SHALL:
1. CEASE AND DESIST FROM INTERFERING WITH, RESTRAINING, OR COERCING
ANY EMPLOYEE IN THE EXERCISE OF HIS RIGHT, FREELY AND WITHOUT FEAR OF
REPRISAL, EXPRESS OR IMPLIED, TO JOIN A LABOR ORGANIZATION.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE EXECUTIVE ORDER:
(A) POST IN SNACK BARS 2 AND 3 COPIES OF THE ATTACHED NOTICE MARKED
"ATTACHMENT" 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 EXCHANGE OFFICER
AND SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN PLACES WHERE
NOTICES TO EMPLOYEES IN
SNACK BARS 2 AND 3 ARE CUSTOMARILY POSTED. THE EXCHANGE OFFICER
SHALL TAKE REASONABLE STEPS
TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY
OTHER MATERIAL.
(B) PURSUANT TO SECTION 203.27 OF THE REGULATIONS NOTIFY THE
ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS, IN WRITING, WITHIN 30 DAYS FROM THE
DATE OF THIS ORDER WHAT
STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE COMPLAINT, INSOFAR AS IT ALLEGES A
VIOLATION OF SECTION 19(A)(2) OF THE ORDER, IS DISMISSED.
ATTACHMENT
NOTICE TO EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS AND IN ORDER TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
AMENDED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE OF HIS RIGHT, FREELY AND WITHOUT FEAR OF REPRISAL, TO JOIN A
LABOR ORGANIZATION.
MARINE CORPS EXCH ANGE 8-2
BY
EXCHANGE OFFICER
DATE:
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
REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR WHOSE ADDRESS
IS: ROOM 9061, FEDERAL BUILDING, 450 GOLDEN GATE AVENUE, SAN FRANCISCO,
CALIFORNIA 94102.
/1/ I DO NOT CREDIT THE TESTIMONY THAT WARREN URGED THE EMPLOYEES SHE
MANAGED NOT TO JOIN THE UNION BECAUSE OF ITS INFERIOR INSURANCE PROGRAM.
ON THIS POINT I FIND WARREN URGED ONLY THAT IF THEY JOINED THE UNION
THEY CONTINUE TO CARRY THE EXCHANGE INSURANCE. THE EXCHANGE INSURANCE
HAD COMPREHENSIVE COST OF THE VOLUNTARY INSURANCE, WHILE THE INSURANCE
FURNISHED BY THE UNION WAS PAID FOR ENTIRELY BY THE UNION BUT INSURED
AGAINST ONLY ACCIDENTAL DEATH OR DISMEMBERMENT.
/2/ EXH. R.1.
/3/ SEE SOCIAL SECURITY ADMINISTRATION, WILKES-BARRE OPERATIONS
BRANCH, HEW, A/SLMR NO. 729 (1976).
/4/ SEE DIRECTOR, OFFICE OF LABOR-MANAGEMENT STANDARDS ENFORCEMENT,
U.S. DEPARTMENT OF LABOR AND LOCAL 1841, A.F.G.E. AFL-CIO, A/SLMR NO.
686.
7 A/SLMR 864; P. 568; CASE NO. 32-4694(CO); JULY 19, 1977.
JULY 19, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3486, AFL-CIO
A/SLMR NO. 864
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
177TH FIGHTER INTERCEPTOR GROUP, AIR NATIONAL GUARD, NEW JERSEY,
DEPARTMENT OF DEFENSE (COMPLAINANT) ALLEGING THAT THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3486, AFL-CIO (RESPONDENT)
VIOLATED SECTION 19(B)(4) OF THE ORDER BY ACTIVELY ENCOURAGING AND
CONDONING A WORK STOPPAGE AND BY FAILING TO TAKE AFFIRMATIVE STEPS TO
PREVENT OR STOP THE PROHIBITED ACTIVITY.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT BAD WEATHER CONDITIONS FORCED
THE RESCHEDULING OF A SEGMENT OF AN OPERATIONAL READINESS INSPECTION
(ORI) FROM SUNDAY AFTERNOON TO THE FOLLOWING MONDAY, WHICH WAS NORMALLY
A DAY OFF FOR UNIT EMPLOYEES. IN REACTION TO THAT CHANGE, THE PRESIDENT
OF THE RESPONDENT ADVISED THE VICE-PRESIDENT AND A STEWARD THAT THEY
SHOULD PRESENT UNIT EMPLOYEES WITH SEVERAL OPTIONS. HE STATED THAT THEY
COULD TAKE EMERGENCY ANNUAL LEAVE, EMERGENCY SICK LEAVE, OR THEY COULD
SIMPLY STAY OFF FROM WORK WITHOUT REPORTING IN. HE ALSO STATED THAT
THEY SHOULD "DO THE GOVERNMENT A FAVOR AND COME TO WORK," BUT WHATEVER
THEY DID, THE UNION WOULD SUPPORT THEM. THE STEWARD WAS ADVISED TO HOLD
A MEETING WITH UNIT EMPLOYEES AND RELAY TO THEM THE OPTIONS OUTLINED BY
THE RESPONDENT'S PRESIDENT. AT THE MEETING, THE STEWARD RELATED THE
OPTIONS AND INFORMED UNIT EMPLOYEES THAT WHATEVER OPTION THEY SELECTED,
THE UNION WOULD BACK THEM UP. THE NEXT DAY, MONDAY, THE UNION
VICE-PRESIDENT, THE STEWARD, AND ANOTHER EMPLOYEE DID NOT REPORT TO WORK
OR CALL IN. WHEN THEY RETURNED ON TUESDAY, THEY INFORMED THEIR
SUPERVISOR THAT THEY HAD NOT REPORTED IN OR CALLED IN BECAUSE THEY DID
NOT RECOGNIZE THE CHANGE IN THE WORKWEEK.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED, THAT THE RESPONDENT'S CONDUCT
VIOLATED SECTION 19(B)(4) OF THE ORDER IN THAT IT CONDONED AND
ENCOURAGED EMPLOYEES TO WITHHOLD THEIR SERVICES AND FAILED TO FULFILL
ITS AFFIRMATIVE DUTY TO PREVENT SUCH CONDUCT.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER AND THE ENTIRE RECORD IN THE MATTER, INCLUDING THE
RESPONDENT'S EXCEPTIONS, THE ASSISTANT SECRETARY ADOPTED THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS,
AND ISSUED AN APPROPRIATE REMEDIAL ORDER.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3486, AFL-CIO
RESPONDENT
CASE NO. 32-4694(CO)
AND
177TH FIGHTER INTERCEPTOR GROUP,
AIR NATIONAL GUARD,
NEW JERSEY DEPARTMENT OF DEFENSE
COMPLAINANT
DECISION AND ORDER
ON MARCH 31, 1977, 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 CEASE AND DESIST THEREFROM, AND TAKE
CERTAIN AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE
LAW JUDGE'S RECOMMENDED DECISION AND ORDER. THEREAFTER, THE RESPONDENT
FILED EXCEPTIONS 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.
ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS PROMULGATED THEREUNDER, THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS HEREBY
ORDERS THAT THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3486,
AFL-CIO, SHALL:
1. CEASE AND DESIST FROM:
(A) ENCOURAGING OR ENGAGING IN A WORK STOPPAGE AGAINST THE 177TH
FIGHTER INTERCEPTOR GROUP, AIR NATIONAL GUARD, NEW JERSEY DEPARTMENT OF
DEFENSE, OR ANY OTHER AGENCY OF THE GOVERNMENT OF THE UNITED STATES, OR
ASSISTING OR PARTICIPATING IN SUCH ACTIVITY.
(B) CONDONING ANY SUCH ACTIVITY BY THE FAILURE TO TAKE AFFIRMATIVE
ACTION TO PREVENT OR STOP IT.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE EXECUTIVE ORDER:
(A) POST AT ITS LOCAL BUSINESS OFFICE, AT ITS NORMAL MEETING PLACES,
AND AT ALL OTHER PLACES WHERE NOTICES TO MEMBERS AND TO EMPLOYEES OF THE
177TH FIGHTER INTERCEPTOR GROUP, AIR NATIONAL GUARD, NEW JERSEY
DEPARTMENT OF DEFENSE ARE CUSTOMARILY POSTED, INCLUDING SPACE ON
BULLETIN BOARDS MADE AVAILABLE TO THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3486, AFL-CIO, BY AGREEMENT OR OTHERWISE BY THE 177TH
INTERCEPTOR GROUP, AIR NATIONAL GUARD, NEW JERSEY DEPARTMENT OF DEFENSE,
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 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
3486, AFL-CIO, AND SHALL BE POSTED FOR A PERIOD OF 60 CONSECUTIVE DAYS
IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES AS TO ITS
MEMBERS AND TO EMPLOYEES OF THE 177TH INTERCEPTOR GROUP, AIR NATIONAL
GUARD, NEW JERSEY DEPARTMENT OF DEFENSE ARE CUSTOMARILY POSTED.
REASONABLE STEPS SHALL BE TAKEN BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3486, AFL-CIO, TO ENSURE THAT SAID NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) MAIL A COPY OF SAID NOTICE TO EACH OF ITS MEMBERS OF HIS LAST
KNOWN HOME ADDRESS.
(C) FURNISH SUFFICIENT COPIES OF SAID NOT2CE WITHIN 14 DAYS OF THE
DATE OF THIS DECISION TO THE 177TH FIGHTER INTERCEPTOR GROUP, AIR
NATIONAL GUARD, NEW JERSEY DEPARTMENT OF DEFENSE FOR POSTING IN
CONSPICUOUS PLACES WHERE IT CUSTOMARILY POSTS INFORMATION TO ITS
EMPLOYEES. THE 177TH FIGHTER INTERCEPTOR GROUP, AIR NATIONAL GUARD, NEW
JERSEY DEPARTMENT OF DEFENSE SHALL MAINTAIN SUCH NOTICES FOR A PERIOD OF
60 CONSECUTIVE DAYS FROM THE DATE OF POSTING.
(D) PURSUANT TO SECTION 203.27 OF THE REGULATIONS NOTIFY THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS 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.
JULY 19, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
APPENDIX
NOTICE TO ALL MEMBERS AND TO ALL EMPLOYEES OF THE 177TH
FIGHTER INTERCEPTOR GROUP, AIR NATIONAL GUARD NEW JERSEY
DEPARTMENT OF DEFENSE
PURSUANT TO A DECISION AND ORDER OF THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS AND IN ORDER TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
AMENDED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE
WE HEREBY NOTIFY OUR MEMBERS AND ALL EMPLOYEES OF THE 177TH
FIGHTER INTERCEPTOR GROUP, AIR NATIONAL GUARD NEW JERSEY
DEPARTMENT OF DEFENSE THAT:
WE WILL NOT ENCOURAGE OR ENGAGE IN A WORK STOPPAGE AGAINST THE 177TH
FIGHTER INTERCEPTOR GROUP, AIR NATIONAL GUARD, NEW JERSEY DEPARTMENT OF
DEFENSE, OR ANY OTHER AGENCY OF THE GOVERNMENT OF THE UNITED STATES, OR
ASSIST OR PARTICIPATE IN SUCH ACTIVITY.
WE WILL NOT CONDONE ANY OF THE ABOVE-MENTIONED CONDUCT AND WE WILL
TAKE AFFIRMATIVE ACTION TO PREVENT OR STOP IT, IN THE EVENT IT REOCCURS.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3486, AFL-CIO
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
REGIONAL ADMINISTRATOR, UNITED STATES DEPARTMENT OF LABOR, WHOSE ADDRESS
IS: ROOM 3515 - 1515 BROADWAY, NEW YORK, NEW YORK 10036.
U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
SUITE 700-1111 20TH STREET, N.W.
WASHINGTON, D.C. 20036
IN THE MATTER OF
177TH FIGHTER INTERCEPTOR GROUP,
AIR NATIONAL GUARD, NEW JERSEY
DEPARTMENT OF DEFENSE
COMPLAINANT
CASE NO. 32-4694(CO)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3486, AFL-CIO
RESPONDENT
AND
REGIONAL ADMINISTRATOR, LABOR
MANAGEMENT SERVICES ADMINISTRATION,
UNITED STATES DEPARTMENT OF LABOR
PARTY
COLONEL JOHN G. JOHNSON
TRENTON, NEW JERSEY
FOR THE COMPLAINANT
JOSEPH F. GIRLANDO, NATIONAL REPRESENTATIVE,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
ORANGE, NEW JERSEY
FOR THE RESPONDENT
FRANCIS V. LARUFFA
REGIONAL SOLICITOR OF LABOR BY
JAY S. BERKE, ESQ.
NEW YORK, NEW YORK
FOR THE REGIONAL ADMINISTRATOR
BEFORE: GORDON J. MYATT
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO A COMPLAINT FILED JULY 1, 1976, AND AN AMENDED COMPLAINT
FILED JULY 8, 1976, BY 1977TH FIGHTER INTERCEPTOR GROUP, AIR NATIONAL
GUARD, NEW JERSEY DEPARTMENT OF DEFENSE (HEREINAFTER CALLED COMPLAINANT)
THE REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES FOR THE NEW
YORK REGION ISSUED A NOTICE OF HEARING ON COMPLAINT ON AUGUST 26, 1976.
THE COMPLAINT ALLEGED THAT AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 3486, AFL-CIO, (HEREINAFTER CALLED RESPONDENT UNION) VIOLATED
SECTION 19(B)(4) OF EXECUTIVE ORDER 11491, AS AMENDED, IN THAT THE LABOR
ORGANIZATION CALLED OR ENGAGED IN A WORK STOPPAGE, OR CONDONED SUCH
ACTIVITY BY FAILING TO TAKE AFFIRMATIVE ACTION TO PREVENT OR STOP THE
PROHIBITED ACTIVITY. THE ALLEGED UNLAWFUL CONDUCT IS ASSERTED TO HAVE
OCCURRED ON APRIL 12, 1976, AT THE NATIONAL AVIATION FACILITY
EXPERIMENTAL CENTER (NAFEC) IN POMONA, NEW JERSEY, WHERE THE COMPLAINANT
OPERATED A BASE AS A PART OF THE AEROSPACE DEFENSE COMMAND.
A HEARING WAS HELD IN THIS MATTER ON OCTOBER 27, 1976, IN POMONA, NEW
JERSEY. /1/ ALL PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED FULL
OPPORTUNITY TO BE HEARD AND TO INTRODUCE RELEVANT EVIDENCE AND TESTIMONY
ON THE ISSUES INVOLVED. AS A PARTY-IN-INTEREST, THE REGIONAL
ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES WAS REPRESENTED BY THE
OFFICE OF THE REGIONAL SOLICITOR OF LABOR. BRIEFS WERE SUBMITTED BY
COUNSEL AND HAVE BEEN DULY CONSIDERED IN ARRIVING AT THE DECISION IN
THIS CASE. /2/
FINDINGS OF FACT
A. BACKGROUND FACTS
THE COMPLAINANT ACTIVITY IS A MILITARY UNIT IN THE AIR NATIONAL
GUARD, WHOSE MISSION IS TO TRAIN AND EQUIP PERSONNEL TO IDENTIFY,
INTERCEPT, AND DESTROY (IF ORDERED) AIRCRAFT OR MISSILES COMING INTO THE
UNITED STATES. AS SUCH, THE COMPLAINANT ACTIVITY IS AN OPERATIONAL UNIT
OF THE AEROSPACE DEFENSE COMMAND (ADCOM). THE UNIT IS STAFFED BY BOTH
MILITARY PERSONNEL AND CIVILIAN EMPLOYEES; THE LATTER ARE CLASSIFIED AS
AIR TECHNICIANS AND ARE REPRESENTED BY THE RESPONDENT UNION.
ALTHOUGH THE AIR TECHNICIANS HAVE WAGE GRADE OR GENERAL SCHEDULE (GS)
STATUS AS CIVILIANS, THEY ALSO MUST BE MEMBERS OF THE AIR NATIONAL GUARD
AND HOLD MILITARY RANK. THEY ARE REQUIRED TO PERFORM MILITARY DUTIES
ONE WEEKEND (SATURDAY AND SUNDAY) PER MONTH, OR AT LEAST 15 (ACTIVE DUTY
DAYS IN THE COURSE OF A YEAR. WHEN THE CIVILIAN EMPLOYEES ARE IN
MILITARY STATUS IT IS DESCRIBED AS UNIT TRADING ASSEMBLY (UTA). THE
WORK THEY PERFORM, HOWEVER, IS NORMALLY THE SAME WORK THEY PERFORM AS
CIVILIAN EMPLOYEES.
THE NORMAL WORKWEEK AT THE COMPLAINANT ACTIVITY IS TUESDAY THROUGH
SATURDAY FROM 8:30 A.M. TO 5:00 P.M. THIS DOES NOT APPLY WHEN THE
EMPLOYEES ARE IN UTA STATUS; THEY THEN WORK AS CIVILIANS FROM MONDAY
THROUGH FRIDAY AND PERFORM THEIR MILITARY OBLIGATION ON THE WEEKEND.
B. THE ALLEGED UNLAWFUL CONDUCT
THE UNIT WORKED MONDAY THROUGH FRIDAY THE WEEK OF APRIL 5, 1976, AS
IT WAS SCHEDULED FOR UTA STATUS THE FOLLOWING WEEKEND. ON APRIL 6,
1976, COLONEL HANNON, THE BASE COMMANDER, RECEIVED A NOTIFICATION THERE
WOULD BE AN OPERATIONAL READINESS INSPECTION (ORI) THE LATTER PART OF
THAT WEEK. THIS WAS AN INSPECTION CONDUCTED BY THE INSPECTOR GENERAL'S
OFFICE OF ADCOM TO TEST ALL CAPABILITIES OF THE UNIT TO PERFORM ITS
MISSION SATISFACTORILY. THIS TYPE OF INSPECTION WAS A "NO NOTICE"
INSPECTION, WHICH MEANT THAT THE UNIT RECEIVED NOTIFICATION 72 HOURS IN
ADVANCE OF THE ARRIVAL OF THE INSPECTION TEAM. THE PROCEDURES REQUIRED
THE INSPECTED UNIT TO BE PUT THROUGH VARIOUS STAGES OF ALERT, CALLED
DEFCOF, /3/ AND TO PERFORM CERTAIN EXERCISES TO TEST ITS READINESS AND
PERFORMANCE.
THE ADVANCE UNIT OF THE INSPECTION TEAM ARRIVED AT THE INSTALLATION
ON THURSDAY, APRIL 8. THE MAIN CONTINGENT LANDED THE FOLLOWING DAY, AND
THE UNIT WAS PUT THROUGH A NUMBER OF EXERCISES IN DIFFERENT DEFCOF
STAGES. ON SUNDAY, APRIL 11, THE UNIT WAS REQUIRED TO ENGAGE IN A
"FLUSH" EXERCISE THAT HAD A STATUS OF DEFCOF-1 TO DETERMINE THE
SURVIVABILITY OF THE UNIT'S AIRCRAFT IN WARTIME CONDITIONS. THIS
PARTICULAR EXERCISE INVOLVED ALL OF THE AIRCRAFT OF THE COMPLAINANT
ACTIVITY, INCLUDING SUPPORT AIRCRAFT. DUE TO A RESTRICTION IMPOSED BY
NAFEC AUTHORITIES WHO OPERATED THE INSTALLATION WHERE THE UNIT WAS
BASED, NO FLYING IS PERMITTED ON SUNDAY MORNINGS. THIS WAS TO AVOID
DISTURBING CHURCH SERVICES CONDUCTED IN THE NEARBY COMMUNITIES. WHEN
INFORMED OF THE RESTRICTION, THE HEAD OF THE INSPECTION TEAM SCHEDULED
THE "FLUSH" EXERCISE FOR EARLY SUNDAY AFTERNOON.
AT THE TIME THE AIRCRAFT WERE BEING READIED FOR LAUNCH, THE WEATHER
CONDITIONS CHANGED AND CROSSWINDS EXCEEDING 20 KNOTS PER HOUR WERE
SWEEPING ACROSS THE RUNWAY. THE INSPECTION TEAM COMMANDER RECEIVED
INFORMATION THAT THE WEATHER FRONT WOULD PREVAIL FOR THE BALANCE OF THE
DAY AND PASS THROUGH THE AREA THAT EVENING. HE THEN RESCHEDULED THE
"FLUSH" EXERCISE FOR THE FOLLOWING DAY, WHICH NORMALLY WOULD HAVE BEEN A
NON-WORK DAY FOR THE UNIT.
WHEN THE DECISION WAS MADE TO RESCHEDULE THE EXERCISE, THE BASE
COMMANDER ATTEMPTED TO CONTACT DONALD AUER, VICE PRESIDENT OF THE UNION
AND A TECHNICIAN ATTACHED TO THE AEROSPACE GROUP EQUIPMENT SHOP. /4/ HE
WAS UNABLE TO REACH AUER WHO WAS PERFORMING DUTIES ON THE FLIGHT LINE.
HE THEN ATTEMPTED TO CONTACT SERGEANT PASCALE, SECRETARY OF THE UNION,
BUT HE WAS ALSO OUT ON THE FLIGHT LINE. THE BASE COMMANDER FINALLY
CONTACTED A UNION STEWARD FROM THE AVIONICS SHOP AND NOTIFIED HIM OF THE
CHANGE IN THE WORKWEEK AND THE REASON FOR IT. HE INSTRUCTED THIS
INDIVIDUAL TO INFORM THE OTHER UNION OFFICIALS. BECAUSE OF THE
INSPECTION, THE EMPLOYEES HAD STARTED AN EARLY SHIFT THAT MORNING AND
WERE SCHEDULED TO LEAVE EARLY IN THE AFTERNOON. FEARING THEY WOULD
LEAVE BEFORE BEING NOTIFIED OF RESCHEDULED WORKWEEK, HANNON HAD THE
CHANGE ANNOUNCED ON THE PUBLIC ADDRESS SYSTEM. HE ALSO NOTIFIED HIS
SUPERVISORS AND INSTRUCTED THEM TO RELAY THE MESSAGE VERBALLY TO THE
EMPLOYEES.
SERGEANT RUTHERFORD, A SECTION CHIEF IN THE AGE SHOP WENT TO THE
FLIGHT LINE IN A VEHICLE TO FIND THE UNION OFFICIALS TO PERSONALLY
NOTIFY THEM OF THE CHANGE. HE SPOKE WITH AUER WHO WAS SITTING IN A
PARKED VEHICLE ALONG SIDE A VEHICLE IN WHICH LOUIS CASCIONE, STEWARD FOR
THE AGE SHOP AND ANOTHER EMPLOYEE, SCHINESTUHL, WERE SITTING. HE
INFORMED ALL OF THEM OF THE CHANGE IN THE WORK SCHEDULE.
WHEN AUER AND CASCIONE RETURNED TO THE AGE SHOP, THEY EACH CONTACTED
RICHARD APOTHAKER, THE PRESIDENT OF THE UNION, AT HIS HOME. /5/ IN HIS
CONVERSATIONS WITH AUER AND CASCIONE, APOTHAKER ADVISED THAT THE
EMPLOYEES HAD SEVERAL OPTIONS AVAILABLE TO THEM. HE STATED THEY COULD
TAKE EMERGENCY ANNUAL LEAVE, EMERGENCY SICK LEAVE OR THEY COULD SIMPLY
STAY OFF FROM WORK WITHOUT REPORTING IN. HE ALSO STATED THAT THE
EMPLOYEE SHOULD "DO THE GOVERNMENT A FAVOR AND COME TO WORK", BUT
WHATEVER DECISION THEY MADE, THE UNION WOULD SUPPORT THEM.
AUER AND CASCIONE DISCUSSED THE MATTER AMONG THEMSELVES AND DECIDED
THAT CASCIONE, AS SHOP STEWARD, SHOULD HOLD A MEETING WITH THE
EMPLOYEES, IN THE SHOP AFTER WORK AND RELAY TO THEM THE POSITIONS
OUTLINED BY APOTHAKER. AFTER THE WORKDAY THE AEG TECHNICIANS MET WITH
CASCIONE IN THE SHOP AND SOUGHT TO GET FROM HIM THE UNION'S OFFICIAL
POSITION ON THE CHANGE IN THE WORKWEEK. CASCIONE REPEATED THE OPTIONS
OUTLINED BY APOTHAKER AND TOLD THE EMPLOYEES "THAT THEY SHOULD DO THE
GOVERNMENT A FAVOR" BUT WHATEVER THEY DID, THE UNION WOULD BACK THEM UP.
/6/
THE FOLLOWING DAY WHEN THE "FLUSH" EXERCISE WAS HELD, AUER, CASCIONE
AND SCHINESTUHL DID NOT REPORT TO WORK NOR DID THEY CALL IN. IN
ADDITION TO THESE THREE EMPLOYEES, TWO OTHER AIR TECHNICIANS, CONTI AND
LAURIA, WERE ALSO ABSENT FROM WORK. THE LATTER TWO EMPLOYEES, HOWEVER,
HAD BEEN GIVEN PERMISSION BY RUTHERFORD TO GO ON ANNUAL LEAVE WHEN IT
WAS RUMORED THE UNIT MIGHT HAVE TO WORK ON MONDAY. ON TUESDAY, APRIL
13, WHEN AUER, CASCIONE AND SCHNESTUHL RETURNED TO WORK, THEY INFORMED
RUTHERFORD THAT THEY HAD NOT CALLED IN BECAUSE THEY DID NOT RECOGNIZE
THE CHANGE IN THE WORKWEEK. EACH INDICATED THAT IF THEY HAD CALLED IN
REQUESTING SOME TYPE OF EMERGENCY LEAVE, IT WOULD HAVE BEEN TACIT
RECOGNITION THAT THERE HAD BEEN AN OFFICIAL CHANGE IN THE WORKWEEK
SCHEDULE. AS A RESULT OF THE FAILURE TO REPORT TO WORK ON APRIL 12, THE
THREE MEN WERE MARKED ABSENT WITHOUT LEAVE (AWOL).
CONCLUDING FINDINGS
THE RESPONDENT UNION ARGUES THAT THE COMPLAINANT ACTIVITY AND THE
REGIONAL ADMINISTRATOR HAVE FAILED TO ESTABLISH THAT A WORK STOPPAGE
OCCURRED OR THAT THE RESPONDENT UNION CONDONED SUCH UNLAWFUL ACTIVITY,
IF IT DID IN FACT HAPPEN. IN MY JUDGMENT, THE RECORD DOES NOT SUPPORT
THE RESPONDENT UNION'S ARGUMENT, AND I FIND THAT A VIOLATION OF SECTION
19(B)(4) HAS INDEED BEEN COMMITTED.
THERE IS NO NEED TO DWELL HERE ON THE RIGHT, OR THE ABSENCE OF THE
RIGHT, OF MANAGEMENT TO RESCHEDULE THE WORKWEEK IN ORDER TO COMPLETE THE
EXERCISES REQUIRED BY THE ORI. THE REGULATIONS OF THE AIR NATIONAL
GUARD DELEGATE TO THE BASE COMMANDER THE AUTHORITY TO CHANGE THE BASIC
WORKWEEK IF THE UNIT'S MISSION REQUIREMENTS MAKE SUCH A CHANGE
NECESSARY. THE CIRCUMSTANCES HERE CLEARLY ESTABLISH THAT THE ORI WAS
NOT COMPLETED, AND A RESCHEDULING OF THE COMING WORKWEEK WAS AN ABSOLUTE
NECESSITY. BUT EVEN IF THIS AUTHORITY HAD NOT BEEN DELEGATED, A CHANGE
IN THE WORKWEEK WOULD HAVE BEEN MANDATED BECAUSE OF THE INTERVENTION OF
THE ADVERSE WEATHER CONDITIONS ON SUNDAY. IF THE OFFICIALS OF THE
RESPONDENT UNION FELT THAT THE RESCHEDULING VIOLATED THE TERMS OF ANY
LABOR AGREEMENT IN FORCE OR PROVISIONS OF THE EXECUTIVE ORDER, THEY
SHOULD HAVE FOLLOWED THE PROCEDURES AVAILABLE TO THEM UNDER THE
EXECUTIVE ORDER RATHER THAN RESORTING TO SELF-HELP.
THE ABOVE IS PREMISED ON MY FINDING THAT THE RESPONDENT UNION DID
CONDONE A WITHHOLDING OF SERVICES BY MEMBERS OF THE UNIT AND FAILED TO
TAKE ANY AFFIRMATIVE STEPS TO PREVENT THIS CONDUCT; WHICH IS THE BASIC
ISSUE HERE. WHEN AUER AND CASCIONE CONTACTED THE UNION PRESIDENT BY
TELEPHONE IT WAS EVIDENT THAT THE UNION OFFICIALS WERE ATTEMPTING TO
ADOPT A "NEUTRAL POSITION" WHILE AT THE SAME TIME SHIFTING THE BURDEN OF
THE BASIC DECISION TO THE EMPLOYEES, I.E., WHETHER TO REPORT OR NOT
REPORT TO WORK THE FOLLOWING DAY. IN OUTLINING THE VARIOUS OPTIONS THEY
THOUGHT WERE AVAILABLE TO THE EMPLOYEES, THE UNION OFFICIALS CONDONED,
AND INDEED ENCOURAGED, UNLAWFUL EMPLOYEE CONDUCT BY INFORMING THE
EMPLOYEES THAT WHATEVER ACTION THEY DECIDED TO TAKE, THE UNION WOULD
SUPPORT THEM. THE MERE FACT THAT THE UNION OFFICIALS STATED THAT THE
EMPLOYEES "SHOULD DO THE GOVERNMENT A FAVOR AND COME TO WORK" DOES NOT
VITIATE WHAT I FIND TO BE UNLAWFUL ENCOURAGEMENT TO ENGAGE IN A WORK
STOPPAGE.
THE LANGUAGE OF SECTION 19(B)(4) IS CLEAR AND UNAMBIGUOUS. IT
PROVIDES THAT A LABOR ORGANIZATION SHALL NOT:
(4) CALL OR ENGAGE IN A STRIKE, WORK STOPPAGE, OR SLOW DOWN; PICKET
AN AGENCY IN A
LABOR-MANAGEMENT DISPUTE; OR CONDONE IN SUCH ACTIVITY BY FAILING TO
TAKE AFFIRMATIVE ACTION TO
PREVENT OR STOP IT.
THE REPORT AND RECOMMENDATIONS OF THE STUDY COMMITTEE, ON THIS POINT,
WHICH WERE ADOPTED IN TOTO WHEN THE EXECUTIVE ORDER WAS ISSUED IN 1969
AND HAVE NOT BEEN CHANGED BY SUBSEQUENT AMENDMENTS, CONTAIN THE
FOLLOWING LANGUAGE WHICH SETS FORTH THE PURPOSE OF THIS PROVISION OF THE
ORDER:
"THE SECTION SHOULD MAKE CLEAR THAT A RECOGNIZED LABOR ORGANIZATION
MAY NOT CONDONE A
STRIKE OR PROHIBIT PICKETING BY ANY MEMBER OR GROUP OR OF MEMBERS
WITHIN ITS ORGANIZATION
WHICH IT REPRESENTS UNDER THE ORDER. OFFICIALS OF THE ORGANIZATION
HAVE A DUTY, IN VIEW OF
THE PROCEDURES PROVIDED FOR PEACEFUL AND ORDERLY RESOLUTIONS OF
DISPUTES AND DIFFERENCES
BETWEEN EMPLOYEES AND MANAGEMENT, TO EXERCISE ALL ORGANIZATIONAL
AUTHORITY AVAILABLE TO THEM
TO PREVENT OR STOP ANY SUCH ACTION BY THE ORGANIZATION OR ANY OF ITS
LOCALS, AFFILIATES, OR
MEMBERS."
WHILE THE REPORT DEALS WITH PICKETING AND STRIKES, THE LANGUAGE OF
THAT SECTION IN THE EXECUTIVE ORDER CLEARLY INCLUDES WORK STOPPAGES AS
PART OF THE CLASS OF PROSCRIBED ACTIVITY.
ACCORDINGLY, I FIND THAT THE RESPONDENT UNION WAS UNDER AN
AFFIRMATIVE DUTY TO ADVISE ITS MEMBERS THAT THEY SHOULD REPORT TO WORK
THE FOLLOWING DAY, EVEN IF THE RESPONDENT UNION INTENDED SUBSEQUENTLY TO
CONTEST THE RESCHEDULING UNDER THE PROCEDURES PROVIDED BY THE EXECUTIVE
ORDER. BY FAILING TO DO SO, AND BY PROVIDING THE EMPLOYEES WITH THE
OPTION OF REMAINING AWAY FROM WORK WITH UNION SANCTION AND SUPPORT, I
FIND THAT THE RESPONDENT UNION CONDONED A WITHHOLDING OF SERVICES AND
FAILED TO MEET THE OBLIGATIONS IMPOSED BY SECTION 19(B)(4). BECAUSE OF
THE LIMITED DURATION OF THE WORK STOPPAGE OR WITHHOLDING OF SERVICES,
AND BECAUSE OF THE MINUSCULE NUMBER OF EMPLOYEES INVOLVED, I DO NOT
BELIEVE THAT IT WOULD SERVE THE INTEREST OF JUSTICE TO INVOKE FURTHER
SANCTIONS UNDER SECTION 2(E)(2) OF THE EXECUTIVE ORDER AGAINST THE
RESPONDENT UNION. /7/
HAVING FOUND THAT THE RESPONDENT UNION ENGAGED IN ACTIVITY WHICH
VIOLATED SECTION 19(B)(4), I SHALL RECOMMEND THAT THE ASSISTANT
SECRETARY ADOPT THE FOLLOWING RECOMMENDED ORDER DESIGNED TO EFFECTUATE
THE POLICIES OF THE EXECUTIVE ORDER 11491, AS AMENDED.
RECOMMENDED ORDER
PURSUANT TO SECTION 6(B) OF THE EXECUTIVE ORDER 11491, AS AMENDED AND
SECTION 203.26(B) OF THE REGULATIONS PROMULGATED THEREUNDER, THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS HEREBY
ORDERS THAT AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3486,
AFL-CIO, SHALL:
1. CEASE AND DESIST FROM:
(A) ENCOURAGING OR ENGAGING IN A WORK STOPPAGE AGAINST 177TH FIGHTER
INTERCEPTOR GROUP, AIR NATIONAL GUARD, NEW JERSEY DEPARTMENT OF DEFENSE,
OR ANY OTHER AGENCY OF THE GOVERNMENT OF THE UNITED STATES, IN A
LABOR-MANAGEMENT DISPUTE, OR ASSISTING OR PARTICIPATING IN SUCH
ACTIVITY.
(B) CONDONING SUCH ACTIVITY BY THE FAILURE TO TAKE AFFIRMATIVE ACTION
TO PREVENT OR STOP IT.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE EXECUTIVE ORDER:
(A) POST AT ALL ITS LOCAL BUSINESS OFFICE AND IN NORMAL PLACES WHERE
MEETINGS WITH MEMBERS OCCUR COPIES OF THE ATTACHED NOTICE, MARKED
"APPENDIX", SIGNED BY THE PRESIDENT OF AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3486, AFL-CIO. SAID COPIES OF THE NOTICES SHALL BE
POSTED FOR A PERIOD OF 60 CONSECUTIVE DAYS IN CONSPICUOUS PLACES,
INCLUDING ALL PLACES WHERE NOTICES TO MEMBERS ARE CUSTOMARILY POSTED.
REASONABLE STEPS SHALL BE TAKEN BY THE RESPONDENT UNION TO ENSURE THAT
SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY OTHER MATERIALS.
(B) MAIL A COPY OF SAID NOTICE TO EACH OF ITS MEMBERS AT HIS LAST
KNOWN ADDRESS.
(C) FURNISH SUFFICIENT COPIES OF NOTICE TO 177TH FIGHTER INTERCEPTOR
GROUP, AIR NATIONAL GUARD, NEW JERSEY DEPARTMENT OF DEFENSE FOR POSTING
BY IT, IF WILLING, AT PLACES WHERE IT CUSTOMARILY POSTS INFORMATION FOR
MEMBERS OF THE FIGHTER GROUP UNIT.
(D) PURSUANT TO SECTION 203.27 OF THE REGULATIONS NOTIFY THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS IN WRITING
WITHIN TWENTY (20) DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS
HAVE BEEN TAKEN TO COMPLY HEREWITH.
GORDON J. MYATT
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 31, 1977
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL MEMBERS AND TO ALL EMPLOYEES PURSUANT TO A
DECISION AND ORDER OF THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS AND IN ORDER TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
AMENDED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE
WE HEREBY NOTIFY OUR MEMBERS AND ALL EMPLOYEES THAT:
WE WILL NOT ENCOURAGE OR ENGAGE IN A WORK STOPPAGE AGAINST THE 177TH
FIGHTER INTERCEPTOR GROUP, AIR NATIONAL GUARD, NEW JERSEY DEPARTMENT OF
DEFENSE, OR ANY OTHER AGENCY OF THE GOVERNMENT OF THE UNITED STATES, IN
A LABOR-MANAGEMENT DISPUTE, OR ASSIST OR PARTICIPATE IN SUCH ACTIVITY.
WE WILL NOT CONDONE ANY OF THE ABOVE-MENTIONED CONDUCT AND WE WILL
TAKE AFFIRMATIVE ACTION TO PREVENT OR STOP IT, IN THE EVENT IT REOCCURS.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3486, AFL-CIO
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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL ADMINISTRATOR 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
/1/ ALTHOUGH THE RULES REQUIRE AN EXPEDITED PROCEDURE FOR ALLEGED
VIOLATIONS OF SECTION 19(B)(4) BECAUSE OF THE GRAVITY OF THE ASSERTED
UNLAWFUL CONDUCT, THIS PROCEDURE DOES NOT APPLY IN THE INSTANT CASE AS
THE ALLEGED UNLAWFUL CONDUCT HAD CEASED. (TITLE 29, C.F.R. 203.7).
/2/ THE TIME FOR FILING BRIEFS WAS SET FOR NOVEMBER 30, 1976, AND WAS
EXTENDED UNTIL DECEMBER 15, 1976, BECAUSE OF THE FAILURE OF THE OFFICIAL
REPORTER TO PROVIDE COPIES OF THE TRANSCRIPT TO THE PARTIES. THE TIME
WAS FURTHER EXTENDED UNTIL JANUARY 31, 1977, FOR THE SAME REASON.
/3/ DEFCOF CONSISTS OF SEVERAL GRADATIONS OF ALERTNESS GOVERNING THE
STAGES OF READINESS AND THE TYPES OF RESPONSE THE UNIT MUST UNDERTAKE.
FOR EXAMPLE, CEFCOF-3 THROUGH 5 IS A WARNING THAT SOME EVENT MIGHT
OCCUR, BUT THE UNIT IS NOT REQUIRED TO ACT. DEFCOF-2 REQUIRES THE UNIT
TO SECURE AND GUARD ITS BASE. DEFCOF-1 PLACES THE UNIT ON A WAR FOOTING
AND IN COMBAT STATUS.
/4/ AUER WAS A POWERED SUPPORT SYSTEMS MECHANIC AND HELD THE MILITARY
RANK OF SERGEANT.
/5/ APOTHAKER WAS FORMERLY A CIVILIAN TECHNICIAN ATTACHED TO THE
UNIT. HE WAS NO LONGER EMPLOYED IN THIS CAPACITY AND WAS NOT ON THE
BASE.
/6/ AUER WAS NOT PRESENT AT THE SHOP MEETING. HE LEFT THE BASE
EARLY, BUT SUGGESTED TO CASCIONE THAT HE CONDUCT THE MEETING IN RESPONSE
TO QUESTIONS FROM THE SHOP EMPLOYEES.
/7/ CF. PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, INC.,
A/SLMR NO. 10.
7 A/SLMR 863; P. 561; CASE NO. 30-06932(CA); JULY 19, 1977.
JULY 19, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
DIVISION OF MILITARY AND NAVAL
AFFAIRS, STATE OF NEW YORK.
NEW YORK AIR NATIONAL GUARD
A/SLMR NO. 863
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE H.
E. BROOKS MEMORIAL CHAPTER, ASSOCIATION OF CIVILIAN TECHNICIANS, (ACT)
(6) OF THE ORDER BY REFUSING TO BARGAIN IN GOOD FAITH CONCERNING A PLAN
FOR IMPLEMENTING A REDUCTION-IN-FORCE (RIF) AT THE SUFFOLK COUNTY AIR
NATIONAL GUARD BASE, WESTHAMPTON BEACH, LONG ISLAND, NEW YORK.
THE CIVILIAN TECHNICIAN EMPLOYEES AT THE SUFFOLK BASE WERE
REPRESENTED BY THE ACT AS A PART OF THE STATE-WIDE UNIT FOR WHICH IT
HELD EXCLUSIVE RECOGNITION. THE NEW YORK STATE COUNCIL OF THE ACT AND
THE RESPONDENT APPROVED BY THE NATIONAL GUARD BUREAU (NGB) ON OCTOBER 3,
1975. THE NEGOTIATED AGREEMENT, WHICH NOTED THAT IT WAS SUBJECT TO
CURRENTLY APPLICABLE STATUTES AND REGULATIONS ISSUED BY THE NGB,
CONTAINED A PROVISION ON RIFS WHICH STATED THAT "FACTORS (NOT TO BE
CONSTRUED AS ALL INCLUSIVE) TO BE CONSIDERED DEVELOPING
REDUCTION-IN-FORCE PLANS ARE: (A) TECHNICIAN SERVICE; (B)
QUALIFICATIONS, TO INCLUDE EXPERIENCE AND SKILL; (C) PERFORMANCE
RATINGS; AND (D) FILLING VACANCIES PRIOR TO REDUCTION-IN-FORCE." AFTER
BEING INFORMED BY THE RESPONDENT IN JANUARY 1976, OF THE NECESSITY FOR
RIFS, AGREEMENTS BETWEEN THE ACT AND THE RESPONDENT CONCERNING RIF
PROCEDURES AT BASES AT NIAGARA FALLS AND SYRACUSE, NEW YORK, WERE
CONCLUDED. AT SUFFOLK, THE PARTIES WERE ABLE TO AGREE WITH RESPECT TO
ALL THE ELEMENTS OF THE RIF PROCEDURE EXCEPT FOR THE ACT'S PROPOSALS
WHICH WOULD HAVE HAD THE EFFECT OF MAKING SENIORITY THE PRIMARY
CRITERION FOR RANKING EMPLOYEES AND WHICH, AMONG OTHER THINGS, WOULD
HAVE NEGATED THE NGB'S REGULATORY REQUIREMENT THAT MILITARY EVALUATIONS
BE GIVEN EQUAL WEIGHT WITH CIVILIAN EVALUATIONS IN RANKING EMPLOYEES.
THE RESPONDENT TOOK THE POSITION THAT THE IMPLEMENTATION OF THE RIF
PURSUANT TO NGB'S REGULATORY REQUIREMENTS CONCERNING RIFS WAS NOT
INCONSISTENT WITH THE LANGUAGE OF THE NEGOTIATED AGREEMENT.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE NGB'S REGULATORY
REQUIREMENTS CONCERNING RIFS WERE NOT INCONSISTENT WITH THE SPECIFIC
PROVISIONS OF THE PARTIES' NEGOTIATED AGREEMENT AND THAT, AS THE
NEGOTIATED AGREEMENT PROVIDED THAT IT WAS SUBJECT TO REGULATIONS OF THE
NGB AT THE TIME IT WAS ENTERED INTO AND THE NGB'S REGULATIONS CONCERNING
RIFS WERE IN EFFECT AT THE TIME OF THE SIGNING OF THE AGREEMENT AND HAD
NOT BEEN WAIVED BY THE TERMS OF THE NEGOTIATED AGREEMENT, THE RESPONDENT
DID NOT VIOLATE SECTION 19(A)(1) AND (6) OF THE ORDER BY REFUSING TO
NEGOTIATE CONCERNING THE APPLICATION OF THE NGB'S REGULATIONS CONCERNING
RIFS UNDER THE CIRCUMSTANCES HEREIN. THE ADMINISTRATIVE LAW JUDGE
DISTINGUISHED THIS CASE FROM THE DECISION IN COLORADO AIR NATIONAL
GUARD, BUCKLEY AIR NATIONAL GUARD BASE, AURORA, COLORADO, A/SLMR NO. 758
AS IN THAT CASE THE ACTIVITY ATTEMPTED TO IMPOSE UNILATERALLY THE NGB'S
REGULATIONS CONCERNING RIFS DESPITE THE FACT THAT THE PARTIES'
NEGOTIATED AGREEMENT THEREIN CONTAINED SPECIFIC RIF PROCEDURES WHICH
WERE DIFFERENT FROM THE NGB'S REGULATIONS AND THE NGB HAD APPROVED SUCH
AN AGREEMENT IN EFFECT WAIVING THE ACTIVITY'S RIGHT TO RELY ON THE
AGENCY REGULATIONS.
THE ASSISTANT SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS AND
RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE AND HE ORDERED THAT THE
COMPLAINT BE DISMISSED IN ITS ENTIRETY.
DIVISION OF MILITARY AND NAVAL
AFFAIRS, STATE OF NEW YORK,
NEW YORK AIR NATIONAL GUARD
RESPONDENT
CASE NO. 30-06932(CA)
AND
H. E. BROOKS MEMORIAL CHAPTER,
ASSOCIATION OF CIVILIAN TECHNICIANS
COMPLAINANT
DECISION AND ORDER
ON APRIL 1, 1977, ADMINISTRATIVE LAW JUDGE SAMUEL A. CHAITOVITZ
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 HAD 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 COMPLAINANT'S
EXCEPTIONS AND SUPPORTING BRIEF, I HEREBY ADOPT THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS /1/ CONCLUSIONS AND RECOMMENDATION.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 30-06932(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JULY 19, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ IN FOOTNOTE 3 ON PAGE 8 OF THE RECOMMENDED DECISION AND ORDER,
THE CASE CITED THEREIN IS REFERRED TO AS "A/SLMR NO. 756," INSTEAD OF
"A/SLMR NO. 758." THIS INADVERTANCE IS HEREBY CORRECTED.
U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
SUITE 700-1111 20TH STREET, N.W.
WASHINGTON, D.C. 20036
IN THE MATTER OF
DIVISION OF MILITARY AND
NAVAL AFFAIRS
STATE OF NEW YORK
NEW YORK AIR NATIONAL GUARD
RESPONDENT
CASE NO. 30-06932(CA)
AND
H. E. BROOKS MEMORIAL CHAPTER
ASSOCIATION OF CIVILIAN TECHNICIANS
COMPLAINANT
NOEL J. CIPRIANO, ESQUIRE
DIVISION OF MILITARY AND NAVAL AFFAIRS
PUBLIC SECURITY BUILDING
STATE OFFICE CAMPUS
ALBANY, NEW YORK 12226
ON BEHALF OF RESPONDENT
JOHN T. HUNTER
EXECUTIVE VICE-PRESIDENT
ASSOCIATION OF CIVILIAN TECHNICIANS
150 WEST 14TH STREET
DEER PARK, NEW YORK 11729
ON BEHALF OF COMPLAINANT
BEFORE: SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
THIS CASE ARISES UNDER THE PROVISIONS OF EXECUTIVE ORDER 11491, AS
AMENDED (HEREINAFTER CALLED THE ORDER). ON MAY 18, 1976 H. E. BROOKS
MEMORIAL CHAPTER, ASSOCIATION OF CIVILIAN TECHNICIAN, HEREIN CALLED H.
E. BROOKS CHAPTER OF A.C.T., FILED A COMPLAINT ALLEGING THAT DIVISION OF
MILITARY AND NAVAL AFFAIRS, STATE OF NEW YORK (HEREINAFTER CALLED THE
RESPONDENT AND THE ACTIVITY) VIOLATED SECTIONS 19(A)(1) AND (6) BY
FAILING TO NEGOTIATE AND BARGAIN IN GOOD FAITH CONCERNING A PLAN FOR
IMPLEMENTING A REDUCTION IN FORCE WITH RESPECT TO THE SUFFOLK COUNTY AIR
NATIONAL GUARD BASE LOCATED IN WESTHAMPTON BEACH, LONG ISLAND.
PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON DECEMBER 1,
1976 BY DEPARTMENT OF LABOR NEW YORK REGIONAL ADMINISTRATOR A HEARING IN
THE SUBJECT MATTER WAS HELD BEFORE THE UNDERSIGNED IN WESTHAMPTON, NEW
YORK. BOTH PARTIES WERE REPRESENTED AT THE HEARING AND WERE AFFORDED
FULL OPPORTUNITY TO BE HEARD; TO CALL, EXAMINE AND CROSS-EXAMINE
WITNESSES; AND TO INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED
HEREIN. BOTH PARTIES WERE ADVISED OF THEIR RIGHTS TO ARGUE ORALLY AND
BOTH FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATIONS 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:
FINDINGS OF FACT
1. THE NEW YORK STATE COUNSEL OF THE ASSOCIATION OF CIVILIAN
TECHNICIANS (HEREINAFTER CALLED THE UNION AND ACT) HAS AT ALL TIMES
MATERIAL BEEN THE COLLECTIVE BARGAINING REPRESENTATIVE FOR A UNIT
COMPOSED OF ALL NEW YORK ARMY AND AIR NATIONAL GUARD TECHNICIANS.
2. A COLLECTIVE BARGAINING AGREEMENT BETWEEN THE CHIEF OF STAFF OF
THE ACTIVITY AND ACT (HEREINAFTER CALLED THE AGREEMENT) WAS ENTERED INTO
ON SEPTEMBER 15, 1975. THE AGREEMENT WAS APPROVED BY THE NATIONAL GUARD
BUREAU (HEREINAFTER CALLED NGB) ON OCTOBER 3, 1975.
3. THE PREAMBLE TO THE AGREEMENT STATES THAT IT IS "SUBJECT TO
CURRENTLY APPLICABLE STATUTES AND REGULATIONS ISSUED BY THE NATIONAL
GUARD BUREAU. . . . " ARTICLE 13 OF THE AGREEMENT IS ENTITLED
"REDUCTION-IN-FORCE" AND SECTION 5 OF THIS ARTICLE PROVIDES:
"FACTORS (NOT TO BE CONSTRUED AS ALL INCLUSIVE) TO BE CONSIDERED IN
DEVELOPING REDUCTION-IN-FORCE PLANS ARE:
A. TECHNICIAN SERVICE.
B. QUALIFICATIONS, TO INCLUDE EXPERIENCE AND SKILL.
C. PERFORMANCE RATINGS.
D. FILLING VACANCIES PRIOR TO REDUCTION-IN-FORCE."
4. THE NATIONAL GUARD BUREAU (NGB) ADMINISTRATERS THE NATIONAL GUARD
OF THE UNITED STATES BY VIRTUE OF DELEGATED AUTHORITY FROM THE
DEPARTMENT OF DEFENSE AND BY STATUTE AND DEPARTMENT OF DEFENSE
REGULATION. THE NGB ISSUED TECHNICIAN PERSONNEL PAMPHLET 910 (TPP 910)
ON MARCH 1, 1973, WHICH SETS FORTH A "PROGRAM DESIGNED TO ASSIST THE
STATE IN THE PROPER AND ORDERLY TRANSITION OF TECHNICIANS IN THE EVENT
OF A REDUCTION-IN-FORCE (RIF). . . . " TPP 910 (CHAPTER 5-11) PROVIDES
FOR THE ESTABLISHMENT OF A RETENTION REGISTER IN RIF SITUATIONS AND THE
CRITERIA TO BE USED IN PLACEMENT ON THE REGISTER. A FORMAT FOR SUCH A
RETENTION REGISTER IS ALSO INCLUDED IN TPP 910.
5. THE ACTIVITY WAS ADVISED OF A POSSIBLE RIF IN OCTOBER 1975 AND
TRIED TO AVOID SUCH AN OCCURRENCE. APPARENTLY IN JANUARY 1976 THE
ACTIVITY RECOGNIZED THAT A RIF COULD NOT BE AVOIDED AND BY LETTER DATED
JANUARY 29, 1976 NOTIFIED THE STAT. CHAIRMAN OF ACT OF THE IMPENDING RIF
AND ITS IMPLEMENTATION AT THREE AFFECTED MILITARY BASES. THE LETTER
STATED, IN PART,:
"3. THE AGREEMENT BETWEEN DMNA AND ACT, INC. REQUIRES CONSULTATION
IN RIF PROCEDURES. SUCH CONSULTATION WOULD NORMALLY BE WITH THE STATE
CHAIRMAN. HOWEVER, IN VIEW OF THE GEOGRAPHIC LOCATIONS OF THE BASES
INVOLVED AND THE COMPLEXITIES OF EACH CASE, IT IS SUGGESTED THAT SUCH
CONSULTATION BE WITH AN ACT REPRESENTATIVE AT EACH BASE RATHER THAN WITH
THE STATE CHAIRMAN. IF YOU CONCUR, THE REPRESENTATIVES DESIGNATED BY
YOU WOULD HAVE FULL AUTHORITY FOR THE EMPLOYEE ORGANIZATION AND SUCH
ACTION WOULD BE CONSIDERED AS MEETING THE REQUIREMENTS OF THE
AGREEMENT."
6. ACT NAMED BASICALLY DIFFERENT REPRESENTATIVES FOR THE THREE
MEETINGS CONCERNING THE PROPOSED RIF AT THE THREE DIFFERENT
INSTALLATIONS. MEETINGS WERE HELD BETWEEN THE ACT REPRESENTATIVES AND
THE ACTIVITY CONCERNING FIRST THE NIAGARA FALLS INSTALLATION AND THEN
THE SYRACUSE INSTALLATION. AGREEMENTS WERE REACH WITH RESPECT TO THE
IMPLEMENTATION OF THE RIF AT EACH OF THESE INSTALLATIONS AND IN EACH
CASE TPP 910 WAS TO BE APPLIED.
7. THE REPRESENTATIVES OF ACT AND THE ACTIVITY MET ON FEBRUARY 25,
1976 TO DISCUSS THE RIF AT THE SUFFOLK INSTALLATION. THE UNION AND
ACTIVITY REPRESENTATIVES SUBMITTED A NUMBER OF PROPOSALS AND THEN
BARGAINED FOR THE ENTIRE DAY. THE PARTIES REACHED TENTATIVE AGREEMENT
AND BASICALLY ALL OF THE UNION'S PROPOSALS WERE ADOPTED EXCEPT ONE. THE
ONE THAT WAS NOT AGREED UPON WAS THE UNION'S PROPOSAL NUMBER 6 WHICH
PROVIDED:
"6. ESTABLISH A RETENTION REGISTER BY TENURE GROUP, COMPILED AS
FOLLOWS:
A. TECHNICIAN SERVICE (SENIORITY) . . . . LENGTH OF TIME EMPLOYEE
HAS BEEN EMPLOYED BY THE NYANG FOR EXCEPTED EMPLOYEES AND ADJUSTED AND
ACCREDITED SERVICE FOR COMPETITIVE EMPLOYEES.
B. QUALIFICATIONS, TO INCLUDE EXPERIENCE AND SKILL. (SCORE 1 TO 5
YEARS ADDED).
C. PERFORMANCE RATING . . . . AN EMPLOYEE'S CURRENT OFFICIAL
PERFORMANCE RATING ON THE DATE OF ISSUANCE OF A GENERAL RIF NOTICE.
(SCORE 5 YRS OUTSTANDING 3 YRS EXCELLENT 1 YR SATISFACTORY."
THE ACTIVITY REPRESENTATIVES REFUSED TO ACCEPT UNION PROPOSAL NO. 6
BECAUSE THEY CONTENDED THEY HAD TO APPLY TPP 910 IN SETTING UP THE
RETENTION REGISTER. THE UNION IN URGING PROPOSAL NO. 6 CONTENDED THAT
THEY WANTED SENIORITY TO BE THE MAIN CRITERIA IN SETTING UP A RETENTION
REGISTER. THE UNION APPARENTLY TIED THIS TO ARTICLE 13 SECTION 5 OF THE
CONTRACT. THE ACTIVITY TOOK THE POSITION THAT IT HAD TO APPLY THE
CRITERIA SET FORTH IN TPP 910 AND POINTED OUT THAT THAT ALL FOUR
CRITERIA SET OUT IN ARTICLE 13 SECTION 5 WERE INCLUDED IN THE
SUPERVISOR'S REPORT REQUIRED BY TPP 910 IN SETTING UP THE RETENTION
REGISTER. THE PARTIES THEN SIGNED A DOCUMENT WHICH WAS ENTITLED
"PROPOSED REDUCTION-IN-FORCE PLAN" WHICH SET FORTH THOSE TERMS AGREED
UPON AND SPECIFICALLY SET FORTH ACT PROPOSAL NUMBER 6 WHICH HAD NOT BEEN
AGREED UPON. THE ACTIVITY AGREED IT WOULD SEEK FURTHER GUIDANCE AND
CONSULTATION FROM ITS HEADQUARTERS IN ALBANY AND WOULD "GET BACK" TO THE
UNION REPRESENTATIVES. /1/
8. BY MAILGRAMS OF FEBRUARY 28, 1976 AND UNION AND ITS SUFFOLK
REPRESENTATIVE CONTENDED THAT THE ACTIVITY, BY REFUSING TO AGREE TO
PROPOSAL NUMBER 6, WAS VIOLATING ARTICLE 13 SECTION 5 OF THE CONTRACT.
ACT DEMANDED THAT THE ACTIVITY RECTIFY THIS SITUATION.
9. ON OR ABOUT MARCH 1, 1976 IN THE MORNING, AN ACTIVITY
REPRESENTATIVE TELEPHONED UNION REPRESENTATIVE WATERS TO SEE IF THE
UNION HAD CHANGED ITS POSITION WITH RESPECT TO PROPOSAL NUMBER 6.
APPARENTLY THE UNION ADVISED THE ACTIVITY THAT IT HAD NOT CHANGED ITS
POSITION.
10. ON OR ABOUT MARCH 1, 1976 THE ACTIVITY ISSUED ITS GENERAL RIF
NOTICE LETTERS WITH RESPECT TO THE SUFFOLK INSTALLATION.
11. ON MARCH 4, 1976 THE ACTIVITY SENT A LETTER TO THE UNION
ADVISING IT THAT THE RIF WOULD BE INSTITUTED AT THE SUFFOLK BASE AND
THAT THE AGREED "PROPOSED REDUCTION-IN-FORCE PLAN" THAT HAD BEEN SIGNED
ON FEBRUARY 25 WOULD BE IMPLEMENTED ALONG WITH THE REPRESENTATIVE OF TPP
910.
12. ON MARCH 6 UNION REPRESENTATIVE WATERS SENT THE ACTIVITY A
MAILGRAM REQUESTING THAT THEY GO BACK TO THE NEGOTIATING TABLE "FOR
UNRESOLVED ITEMS BASED ON THE WAY WE PROPOSED IT."
13. BY LETTER DATED MARCH 12, 1976 THE ACTIVITY REPLIED TO THE
UNION'S FEBRUARY 28, 1976 MAILGRAM IN WHICH IT ADVISED THE UNION THAT
THE USE OF TPP 910 IS MANDATORY AND THAT WITHIN THE FRAMEWORK SECTION 5
ARTICLE 11 IS BEING OBSERVED IN THE RIF AT THE SUFFOLK INSTALLATION.
14. THE UNION SENT A LETTER DATED MARCH 16, 1976 TO THE NGB
REQUESTING THAT, WITH RESPECT TO THE SUFFOLK INSTALLATION RIF, AN
EXCEPTION BE GRANTED FROM THE RETENTION REGISTER PROVISIONS OF TPP 910.
BY LETTER DATED APRIL 30, 1976 THE NGB ADVISED THE UNION THAT IT WOULD
NOT GRANT AN EXCEPTION TO THE TPP 910 RETENTION REGISTER PROVISIONS IN
ORDER TO PERMIT IT TO BARGAIN ABOUT THEM ON A LOCAL LEVEL.
15. ON MARCH 23, 1976 THE ACTIVITY ISSUED THE SPECIFIC RIF NOTICES
TO THOSE SPECIFIC EMPLOYEES AFFECTED BY THE RIF AT THE SUFFOLK
INSTALLATION.
16. BY LETTER OF MAY 29, 1975 THE NGB TURNED DOWN A REQUEST BY THE
ACTIVITY, MADE AT THE URGING OF ACT, THAT THEY BE GRANTED AN EXCEPTION
TO CERTAIN ASPECTS OF THE TPP 910 REQUIREMENTS PERTAINING TO THE
RETENTION REGISTER. THE UNION HAD RECEIVED A COPY OF THIS
COMMUNICATION.
CONCLUSIONS OF LAW
THE UNION CONTENDS FIRST THAT BECAUSE THE ACTIVITY FIRST LEARNED OF
THE POSSIBLE RIF IN OCTOBER 1975 IT DID NOT TIMELY NOTIFY THE UNION.
HOWEVER, THIS CONTENTION MUST BE REJECTED. THE RECORD ESTABLISHES THAT
ALTHOUGH THE ACTIVITY FIRST LEARNED OF THE POSSIBILITY OF A RIF IN
OCTOBER 1975, IT THEN TRIED TO TAKE ACTION TO SEE IF SUCH A RIF COULD BE
AVOIDED. WHEN IN JANUARY 1976 THE ACTIVITY LEARNED THAT A RIF WAS
INEVITABLE IT PROMPTLY NOTIFIED ACT BY LETTER DATED JANUARY 29, 1976 AND
SET IN MOTION PROCEDURES TO BARGAIN ABOUT THE PROCEDURES FOR
IMPLEMENTING THE RIF AND ITS IMPACT. SUCH NOTIFICATION WAS SUFFICIENTLY
PROMPT TO GIVE THE UNION SUFFICIENT TIME TO MEET AND CONFER WITH THE
ACTIVITY AND THEREFORE SATISFIED THE ACTIVITY'S OBLIGATION.
THE UNION CONTENDS THAT THE ACTIVITY VIOLATED SECTIONS 19(A)(1) AND
(6) OF THE ORDER DURING THE FEBRUARY 25 MEETING AND THEREAFTER BY
REFUSING TO NEGOTIATE CONCERNING ACT'S PROPOSAL NUMBER 6 BECAUSE THE
ACTIVITY CONTENDED IT HAD TO APPLY TPP 910'S PROVISIONS WITH RESPECT TO
THE RETENTION REGISTER. IN EFFECT THE ACTIVITY WAS STATING THAT THE
APPLICATIONAL TPP 910 WAS NON-NEGOTIABLE AS WAS UNION PROPOSAL NUMBER 6,
WHICH WAS INCONSISTENT WITH TPP 910. /2/
THE AGREEMENT OF SEPTEMBER 15, 1975 PROVIDED THAT IT WAS, INTER ALIA
"SUBJECT TO CURRENTLY APPLICABLE. . . . REGULATIONS" ISSUED BY THE NGB.
AT THAT TIME TPP 910 HAD ALREADY BEEN ISSUED BY NGB. NGB THEN APPROVED
THE AGREEMENT, WITH NO NOTATION THAT IT ANY WAY WAS INCONSISTENT WITH
TPP 910. IT IS CONCLUDED THAT ARTICLE 13 SECTION 5, WHICH SETS FORTH
CRITERIA WHICH ARE NOT ALL INCLUSIVE NOR GIVEN SPECIFIC WEIGHTS FOR USE
IN DEVELOPING A REDUCTION-IN-FORCE PLAN, IS NOT NECESSARILY INCONSISTENT
WITH TPP 910. THE CRITERIA SET FORTH IN THE AGREEMENT, AS WELL AS
OTHERS, COULD BE TAKEN INTO ACCOUNT IN THE VARIOUS PROVISIONS FOR
SETTING UP THE RETENTION REGISTER IN CONFORMITY WITH TPP 910. THE UNION
CONTENDS THAT ITS PROPOSAL NUMBER 6 WHICH WAS PRESENTED AT THE FEBRUARY
25 MEETING WAS MERELY A RESTATEMENT OF ARTICLE 13 SECTION 5 OF THE
AGREEMENT. THIS CONTENTION IS REJECTED. PROPOSAL NUMBER 6 SETS FORTH
ALL THE CRITERIA THAT WILL BE USED IN SETTING A RETENTION REGISTER WITH
VERY SPECIFIC WEIGHTS AND PROCEDURES FOR EVALUATING EMPLOYEES. PROPOSAL
NUMBER 6 IS QUITE DIFFERENT FROM ARTICLE 13 SECTION 5 WHICH DEALS WITH
SOME GENERAL CRITERIA, WHICH ARE NOT WEIGHTED NOR ALL INCLUSIVE.
PROPOSAL NUMBER 6 IS INCONSISTENT WITH TPP 910. FOR EXAMPLE ALTHOUGH
WITHIN THE TPP 910 PROCEDURES FOR SETTING UP A RETENTION REGISTER SOME
WEIGHT COULD BE GIVEN TO SENIORITY IT COULD NOT BE GIVEN THE
OVERWHELMING WEIGHT GIVEN IT IN PROPOSAL NUMBER 6.
DURING THE FEBRUARY 25 MEETING THE ACTIVITY ADVISED ACT THAT FOR
THESE VERY REASONS IT COULD NOT ACCEPT PROPOSAL NUMBER 6 AND HAD TO
FOLLOW NGB RULES AND APPLY TPP 910. THUS THE ACTIVITY WAS, IN EFFECT,
DECIDING THAT THE APPLICATION OF THE TPP 910 RETENTION REGISTER
PROCEDURES WERE NON-NEGOTIABLE.
IN THE CIRCUMSTANCES OF THIS CASE IT IS CONCLUDED THAT I CANNOT FIND
THAT THE ACTIVITY VIOLATED SECTIONS 19(A)(1) AND (6) BASED ON ITS
REFUSAL TO NEGOTIATE CONCERNING THE APPLICATION OF TPP 910 IN RIF
SITUATIONS.
IT IS CLEAR THAT NGB IS IN EFFECT THE "AGENCY HEADQUARTERS" FOR THE
STATE NATIONAL GUARDS AND IT IS THE ORGANIZATION THAT IN THIS VERY CASE
APPROVED THE AGREEMENT IN OCTOBER 1975. THIS AGREEMENT STATED THAT IT
WAS SUBJECT TO THE REGULATIONS OF NGB AND, IN FACT, ACT HAD SOUGHT
UNSUCCESSFULLY IN A DIFFERENT RIF SITUATION IN MAY 1975, BEFORE THE
AGREEMENT HAD BEEN ENTERED INTO, TO HAVE NGB WAIVE THE TPP 910
REQUIREMENTS. THUS IT IS CONCLUDED THAT NGB IS "AGENCY HEADQUARTERS"
WITHIN THE MEANING SECTIONS 11 AND 15 OF THE ORDER. /3/
THE SUBJECT CASE IS DISTINGUISHABLE FROM THE COLORADO AIR NATIONAL
GUARD CASE, SUPRA, BECAUSE IN THAT CASE THE COLORADO AIR NATIONAL GUARD
HAD ENTERED INTO A COLLECTIVE BARGAINING AGREEMENT WITH ACT WHICH
SPECIFICALLY PROVIDED FOR THE APPLICATION OF CERTAIN RIF PROCEDURES AND
REGULATIONS THAT WERE CLEARLY DIFFERENT FROM TPP 910. THUS IT WAS HELD
THAT WHEN, DURING A RIF, THE COLORADO AIR NATIONAL GUARD UNILATERALLY
APPLIED THE TPP 910 PROCEDURES RATHER THAN THE COLLECTIVE BARGAINING
AGREEMENT PROCEDURES, THE COLORADO AIR NATIONAL GUARD VIOLATED SECTIONS
19(A)(1) AND (6) OF THE ORDER. /4/ IT SHOULD BE NOTED THAT THE
ASSISTANT SECRETARY IN THE COLORADO AIR NATIONAL GUARD CASE, SUPRA,
SPECIFICALLY DISCUSSED TPP 910 AS AN "AGENCY" POLICY OR REGULATION.
IN THE INSTANT CASE THE AGREEMENT BETWEEN THE PARTIES SPECIFICALLY
RECOGNIZED THAT IT WAS SUBJECT TO REGULATIONS ISSUED BY THE NGB AND TPP
910 HAD, AT THAT TIME ALREADY BEEN ISSUED. SINCE TPP 910 AND ARTICLE 13
OF THE AGREEMENT WERE NOT NECESSARILY INCONSISTENT, IT IS CONCLUDED THAT
BY APPROVING THE AGREEMENT NGB WAS NOT WAIVING THE APPLICATION OF TPP
910 IN RIF SITUATIONS. THUS THE INSTANT CASE RAISES A DIFFERENT PROBLEM
THAN THE COLORADO AIR NATIONAL GUARD CASE, SUPRA. IN THAT CASE THE
ISSUE RAISED IS WHETHER SECTIONS 19(A)(1) AND (6) OF THE ORDER WAS
VIOLATED BY THE UNILATERAL IMPOSITION OF TPP 910, AN AGENCY REGULATION,
WHEN THE PARTIES HAD AGREED, AS PART OF THEIR COLLECTIVE BARGAINING
AGREEMENT, UPON WAIVING TPP 910 AND UPON NEW AND DIFFERENT RIF
PROCEDURES.
IN THE SUBJECT CASE THE ISSUE PRESENTED IS WHETHER THE ACTIVITY
VIOLATED SECTIONS 19(A)(1) AND (6) OF THE ORDER WHEN THERE HAD NOT BEEN
A WAIVER OF THE APPLICATION OF THE AGENCY REGULATION, TPP 910, AND THE
ACTIVITY REFUSED TO NEGOTIATE ABOUT THE APPLICATION OF THE TPP 910 RIF
PROCEDURES IN ANTICIPATION OF AN IMMINENT RIF.
SECTION 11(A) OF THE ORDER PROVIDES THAT THE PARTIES MUST MEET AND
CONFER WITH RESPECT TO PERSONNEL POLICIES AND PRACTICES AND MATTERS
AFFECTING WORKING CONDITIONS SO FAR AS THEY MAY BE APPROPRIATE UNDER
"PUBLISHED AGENCY POLICIES AND REGULATIONS FOR WHICH A COMPELLING NEED
EXISTS. . . . AND WHICH ARE ISSUED AT THE AGENCY HEADQUARTERS LEVEL.
WHEN AN ACTIVITY REFUSES TO NEGOTIATE ON A CERTAIN SUBJECT BECAUSE
THE ACTIVITY DEEMS IN NON-NEGOTIABLE BECAUSE OF AN EXISTING REGULATION
THERE ARE PROCEDURES SET FORTH IN SECTION 11(C) OF THE ORDER FOR SEEKING
A DETERMINATION WHETHER THE MATTER IS NEGOTIABLE WHICH THE LABOR
ORGANIZATION MUST PURSUE. HOWEVER, SECTION 11(D) OF THE ORDER PROVIDES
THAT WHEN THERE IS AN UNFAIR LABOR PRACTICE CASE BASED ON "AN ALLEGED
UNILATERAL CHANGE" THE NEGOTIABILITY ISSUE CAN BE DECIDED AS PART OF THE
UNFAIR LABOR PRACTICE PROCEDURE.
IT IS CONCLUDED HOWEVER THAT SECTION 11(D) OF THE ORDER IS NOT
APPLICABLE TO THE INSTANT CASE AND THEREFORE I CONCLUDE THAT I AM
WITHOUT AUTHORITY, UNDER THE ORDER, TO MAKE A FINDING WITH RESPECT TO
THE QUESTION OF WHETHER THE ACTIVITY HAD TO BARGAIN ABOUT THE
APPLICATION OF THE TPP 910 PROCEDURES. IT IS CONCLUDED THAT THERE WAS
NO "ALLEGED UNILATERAL CHANGE" IN THE INSTANT CASE; RATHER TPP 910 HAD
BEEN IN EXISTENCE SINCE 1973, HAD BEEN APPLIED BY THE PARTIES IN THE
PAST, /5/ AND WAS IMPLIEDLY RECOGNIZED BY THE PARTIES IN THE PREAMBLE TO
THE AGREEMENT. THUS THIS IS NOT A SITUATION WHERE THE ACTIVITY IS
UNILATERALLY APPLYING A NEW REGULATION, BUT RATHER ONE IN WHICH IT IS
REFUSING TO NEGOTIATE ABOUT CHANGING AN EXISTING REGULATION. THIS IS
NOT THE SITUATION CONTEMPLATED BY SECTION 11(D) OF THE ORDER. RATHER
SECTION 11(D) OF THE ORDER GIVES THE PARTIES A METHOD FOR CHALLENGING A
UNILATERAL CHANGE WITHOUT HAVING TO GO THROUGH TWO PROCEDURES. IN THE
INSTANT CASE ACT HAD AMPLE TIME AND OPPORTUNITY BEFORE THE SUBJECT RIF
TO SEEK TO BARGAIN ABOUT THE APPLICATION OF TPP 910 AND, IF THE ACTIVITY
REFUSED TO BARGAIN, TO UTILIZE THE PROCEDURES PROVIDED IN SECTION 11(C)
OF THE ORDER. THIS WOULD HAVE BEEN THE MORE ORDERLY WAY OF HANDLING
THIS MATTER RATHER THAN WAITING FOR A RIF TO BE IMMINENT AND THEN TO
SEEK TO BARGAIN ABOUT THE APPLICATION OF AN EXISTING AGENCY REGULATION
AND TO HAVE NEGOTIABILITY QUESTIONS DETERMINED IN AN UNFAIR PRACTICE
PROCEEDING. /6/
THUS I CONCLUDE THAT I MUST DISMISS THE ALLEGATION THAT THE ACTIVITY
VIOLATED SECTIONS 19(A)(1) AND (6) OF THE ORDER BASED ON ITS REFUSAL TO
NEGOTIATE CONCERNING THE APPLICATION OF TPP 910 BECAUSE I AM WITHOUT
JURISDICTION TO MAKE A DETERMINATION WHETHER THE APPLICATION OF TPP 910
WAS NEGOTIABLE AND WHERE THERE WAS ANY "COMPELLING NEED" WITHIN THE
MEANING OF SECTION 11(A) OF THE ORDER TO PRIVILEGE THE REMOVAL OF THIS
SUBJECT MATTER FROM COLLECTIVE BARGAINING. /7/
FINALLY THE ACTIVITY HAD ADVISED ACT, AT THE CLOSE OF THE FEBRUARY 25
MEETING, THAT IT WOULD CHECK AND GET BACK TO THE UNION CONCERNING
WHETHER IT COULD WAIVE THE TPP 910 REQUIREMENTS. THE ACTIVITY DID
NOTIFY THE UNION IN ITS LETTERS OF MARCH 4, 1976 AND MARCH 12, 1976 THAT
IT WAS BOUND TO USE THE TPP 910 PROCEDURES. /8/ THUS IT IS CONCLUDED
THAT THE ACTIVITY DID ADVISE THE UNION OF ITS FINAL POSITION.
THE UNION BY ITS MAILGRAM DATED MARCH 6, 1976 RENEWED ITS REQUEST TO
NEGOTIATE BUT DID SO "ON THE WAY WE PROPOSED," PRESUMABLY STILL
INSISTING ON ITS PROPOSAL NUMBER 6. THE ACTIVITY HAD ALREADY MADE IT
QUITE CLEAR THAT IT COULD NOT NEGOTIATE CONCERNING PROPOSAL NUMBER 6.
THUS IT IS CONCLUDED THE ACTIVITY'S FAILURE TO MEET AND FURTHER DISCUSS
THE UNION PROPOSAL DID NOT VIOLATE THE ORDER. FINALLY AFTER THE MARCH
12 LETTER FROM THE ACTIVITY IN WHICH IT WAS MADE QUITE CLEAR THAT TPP
910 WOULD BE APPLIED THE UNION REQUESTED NO FURTHER MEETING TO DISCUSS
ANY OTHER ASPECTS OF THE RIF.
IN LIGHT OF ALL OF THE FOREGOING IT IS CONCLUDED THAT HE RECORD IN
THE SUBJECT CASE DOES NOT ESTABLISH THAT THE RESPONDENT ENGAGED IN ANY
CONDUCT WHICH CONSTITUTED A VIOLATION OF SECTIONS 19(A)(1) AND (6) OF
THE ORDER.
RECOMMENDATION
ON THE BASIS OF THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF
LAW, I HEREBY RECOMMEND TO THE ASSISTANT SECRETARY THAT THE SUBJECT
COMPLAINT BE DISMISSED IN ITS ENTIRETY.
SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
DATED: APRIL 1, 1977
WASHINGTON, D.C.
/1/ ALTHOUGH THERE IS SOME CONFUSION AS TO WHAT WAS PRECISELY SAID IT
IS CLEAR THAT THE ACTIVITY REPRESENTATIVES WERE GOING TO SEEK GUIDANCE
ON THE ENTIRE RIF AGREEMENT AND UNION'S PROPOSAL NUMBER 6 AND WAS GOING
TO COMMUNICATE WITH THE UNION FURTHER ONCE SUCH GUIDANCE HAD BEEN
SECURED.
/2/ THERE IS NO DISPUTE THAT TPP 910 AND PROPOSAL NO. 6 ARE
INCONSISTENT.
/3/ IN THIS REGARD "AGENCY HEADQUARTERS," "AGENCY POLICIES AND
REGULATIONS" ARE DISTINGUISHED FROM "APPROPRIATE AUTHORITIES" WITHIN THE
MEANING OF SECTION 12(A) OF THE ORDER. SEE COLORADO AIR NATIONAL GUARD,
BUCKLEY AIR NATIONAL GUARD BASE, A/SLMR NO. 756 (HEREINAFTER REFERRED TO
AS THE COLORADO AIR NATIONAL GUARD CASE).
/4/ IN THESE CIRCUMSTANCES IT WAS CONCLUDED THAT WHEN NGB APPROVED
THE COLLECTIVE BARGAINING AGREEMENT IT WAIVED "ITS POLICY OR REGULATION"
SET FORTH IN TPP 910 AND THAT IT WAS NOT OUTSIDE "APPROPRIATE AUTHORITY"
TO JUSTIFY CHANGING AN EXISTING CONTRACT.
/5/ NOTE THAT ACT SOUGHT WAIVER OF THE TPP 910 PROCEDURES IN MAY
1975.
/6/ IF THIS WERE PERMITTED PARTIES MIGHT NEVER UTILIZE THE MORE
ORDERLY PROCEDURES FOR TESTING NEGOTIABILITY WHERE AN AGENCY'S
REGULATIONS ARE INVOLVED.
/7/ IF IT WERE CONCLUDED THAT SECTION 11(D) OF THE ORDER EMPOWERED ME
TO RULE ON THE NEGOTIABILITY ISSUE IN THE INSTANT UNFAIR LABOR PRACTICE
CASE, I WOULD CONCLUDE THAT THE ACTIVITY VIOLATED SECTIONS 19(A)(1) AND
(6) OF THE ORDER BY REFUSING TO NEGOTIATE CONCERNING THE RIF PROCEDURE.
THE ACTIVITY DID NOT ESTABLISH AT THE HEARING THAT SUCH A REFUSAL WAS
PRIVILEGED BECAUSE OF ANY "COMPELLING NEED" FOR UNIFORM APPLICATION OF
TPP 910 NATIONWIDE WITHIN THE REQUIREMENTS OF SECTION 11(A) OF THE
ORDER. THE ACTIVITY PUT IN NO EVIDENCE TO ESTABLISH SUCH "COMPELLING
NEED." IN THESE CIRCUMSTANCES I WOULD NECESSARILY HAVE TO CONCLUDE THAT
THERE WAS NO JUSTIFICATION FOR THE ACTIVITY'S REFUSAL TO NEGOTIATE
CONCERNING THE UNION'S PROPOSAL NUMBER 6.
/8/ THE FACT THAT THIS NOTIFICATION WAS SENT AFTER THE GENERAL RIF
NOTIFICATION WAS SENT TO EMPLOYEES, ALTHOUGH PERHAPS UNFORTUNATE, DOES
NOT CONSTITUTE A VIOLATION OF THE ORDER SINCE ACT STILL HAD AMPLE TIME
TO REQUEST ANY FURTHER NEGOTIATION BEFORE THE SPECIFIC RIF NOTIFICATIONS
WERE SENT.
7 A/SLMR 862; P. 553; CASE NO. 52-06798(CA); JUNE 18, 1977.
JUNE 18, 1977
UNITED STATES DEPARTMENT OF LABOR
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
SUMMARY OF DECISION AND ORDER OF THE ASSISTANT SECRETARY
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, AS AMENDED
UNITED STATES DEPARTMENT OF
THE TREASURY, INTERNAL REVENUE
SERVICE, DETROIT DATA CENTER,
DETROIT, MICHIGAN
A/SLMR NO. 862
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) OF THE ORDER BY INTERROGATING MS. CAROLINE
GOLDEN, A STEWARD AND EXECUTIVE VICE PRESIDENT OF CHAPTER 78, NTEU,
DURING THE COURSE OF A PROMOTIONAL INTERVIEW WHEN SHE WAS ASKED WHETHER
HER UNION BUSINESS TOOK HER AWAY FROM HER WORK.
BASED ON CREDITED TESTIMONY, THE ADMINISTRATIVE LAW JUDGE FOUND THAT
THE RESPONDENT'S CONDUCT WAS VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER,
AS UNDER THE PARTICULAR CIRCUMSTANCES, THE INQUIRY WAS COERCIVE IN
NATURE. IN THIS REGARD, HE NOTED THAT THE SUBJECT OF HER UNION
ACTIVITIES WAS FIRST RAISED BY MS. GOLDEN DURING THE INITIAL PHASE OF
THE PROMOTIONAL INTERVIEW AS AN EXAMPLE OF HER INTEREST IN WORKING WITH
PEOPLE, THEN DROPPED AND WAS NOT AGAIN RAISED UNTIL THE CHAIRMAN OF THE
INTERVIEW PANEL ASKED HER WHETHER HER UNION BUSINESS TOOK HER AWAY FROM
HER WORK. HE CONCLUDED THAT, IN THIS CONTEXT, THE INQUIRY WAS COERCIVE
IN NATURE AS IT LOGICALLY LED MS. GOLDEN TO CONCLUDE THAT HER UNION
REPRESENTATIONAL DUTIES WOULD TEND TO UNDERMINE HER PROSPECTS FOR
PROMOTION. THEREFORE, HE CONCLUDED THAT THE INQUIRY OPERATED TO
INTERFERE WITH HER RIGHT TO BE A UNION MEMBER, THE RIGHT TO PARTICIPATE
IN THE MANAGEMENT OF A LABOR ORGANIZATION, AND THE RIGHT TO ACT AS A
LABOR ORGANIZATION REPRESENTATIVE AND WAS THUS VIOLATIVE OF SECTION
19(A)(1) OF THE ORDER.
THE ASSISTANT SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE AND ORDERED THAT THE
RESPONDENT CEASE AND DESIST FROM THE CONDUCT FOUND VIOLATIVE OF THE
ORDER AND THAT IT TAKE CERTAIN AFFIRMATIVE ACTIONS.
UNITED STATES DEPARTMENT OF
THE TREASURY, INTERNAL REVENUE
SERVICE, DETROIT DATA CENTER,
DETROIT, MICHIGAN
RESPONDENT
CASE NO. 52-06798(CA)
AND
NATIONAL TREASURY EMPLOYEES UNION,
WASHINGTON, D.C.
COMPLAINANT
ERRATA
THE DATE OF THE ABOVE ENTITLED DECISION AND ORDER AND ATTACHED
SUMMARY WAS INADVERTENTLY SET FORTH ON YOUR COPY AS JUNE 18, 1977,
INSTEAD OF JULY 18, 1977. SUCH INADVERTANCE IS HEREBY CORRECTED AND ALL
APPEAL AND REVIEW RIGHTS SHALL RUN FROM JULY 18, 1977.
UNITED STATES DEPARTMENT OF
THE TREASURY, INTERNAL REVENUE
SERVICE, DETROIT DATA CENTER,
DETROIT, MICHIGAN
RESPONDENT
CASE NO. 52-06798(CA)
AND
NATIONAL TREASURY EMPLOYEES UNION,
WASHINGTON, D.C.
COMPLAINANT
DECISION AND ORDER
ON APRIL 23, 1977, ADMINISTRATIVE LAW JUDGE LOUIS SCALZO 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 CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW
JUDGE'S REPORT AND RECOMMENDATION. THEREAFTER, THE RESPONDENT FILED
EXCEPTIONS 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 FILED BY THE RESPONDENT AND THE ANSWERING BRIEF TO THE
RESPONDENT'S EXCEPTIONS FILED BY THE COMPLAINANT, I HEREBY ADOPT THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
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 THE TREASURY, INTERNAL REVENUE SERVICE, DETROIT DATA
CENTER, DETROIT, MICHIGAN, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERROGATING ITS EMPLOYEES AS TO THE RELATIONSHIP BETWEEN THEIR
WORK PERFORMANCE AND THEIR ACTIVITIES ON BEHALF OF, OR THEIR AFFILIATION
WITH, CHAPTER 78, NATIONAL TREASURY EMPLOYEES UNION, OR ANY OTHER LABOR
ORGANIZATION.
(B) IN ANY LIKE OR RELATED MATTER 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 FACILITIES AT THE UNITED STATES DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE, DETROIT DATA CENTER, DETROIT,
MICHIGAN, 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, DETROIT DATA CENTER 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 SAID 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.
JULY 18, 1977
FRANCIS X. BURKHARDT, ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS AND IN ORDER TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
AMENDED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INTERROGATE OUR EMPLOYEES AS TO THE RELATIONSHIP BETWEEN
THEIR WORK PERFORMANCE AND THEIR ACTIVITIES ON BEHALF OF, OR THEIR
AFFILIATION WITH, CHAPTER 78, NATIONAL TREASURY EMPLOYEES UNION, OR ANY
OTHER LABOR ORGANIZATION.
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.
(AGENCY OR ACTIVITY)
DATED:
BY:
(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR WHOSE ADDRESS
IS: FEDERAL BUILDING, ROOM 1060, 230 SOUTH DEARBORN STREET, CHICAGO,
ILLINOIS 60604.
U.S. DEPARTMENT OF LABOR
OFFICES OF ADMINISTRATIVE LAW JUDGES
SUITE 700-1111 20TH STREET, N.W.
WASHINGTON, D.C. 20036
IN THE MATTER OF
UNITED STATES DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
DETROIT DATA CENTER
DETROIT, MICHIGAN
RESPONDENT
CASE NO. 52-06798(CA)
AND
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W., SUITE 1101
WASHINGTON, D.C. 20006
COMPLAINANT
ERRATA SHEET RELATING TO
RECOMMENDED DECISION AND ORDER
DATED APRIL 13, 1977
CORRECTION: PAGE 5
ADD THE PHRASE, "HER REACTION LED HER TO CONFER WITH OFFICIALS"
FOLLOWING THE SECOND PARAGRAPH.
LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
DATED: APRIL 15, 1977
WASHINGTON, D.C.
U.S. DEPARTMENT OF LABOR
OFFICES OF ADMINISTRATIVE LAW JUDGES
SUITE 700-1111 20TH STREET, N.W.
WASHINGTON, D.C. 20036
IN THE MATTER OF
UNITED STATES DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
DETROIT DATA CENTER
DETROIT, MICHIGAN
RESPONDENT
CASE NO. 52-06798(CA)
AND
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W. SUITE 1101
WASHINGTON, D.C. 20006
COMPLAINANT
DAVID E. MILLS, REGIONAL COUNSEL,
DAVID J. MARKSMAN, STAFF ASSISTANT,
AND KENNETH DALE, ATTORNEY, OFFICE
OF THE REGIONAL COUNSEL, INTERNAL
REVENUE SERVICE (CENTRAL REGION)
P.O. BOX 2059
CINCINNATI, OHIO 45201
FOR THE RESPONDENT
HAYWARD C. REED, ESQ.
NATIONAL TREASURY EMPLOYEES UNION
SUITE 1101, 1730 K STREET, N.W.
WASHINGTON, D.C. 20006
FOR THE COMPLAINANT
BEFORE: LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
REPORT AND RECOMMENDATIONS
STATEMENT OF THE CASE
THIS PROCEEDING WAS INITIATED UPON THE FILING OF AN UNFAIR LABOR
PRACTICE COMPLAINT ON AUGUST 12, 1976, BY THE NATIONAL TREASURY
EMPLOYEES UNION (HEREINAFTER REFERRED TO AS THE COMPLAINANT) AGAINST THE
DETROIT DATA CENTER, INTERNAL REVENUE SERVICE, UNITED STATES DEPARTMENT
OF THE TREASURY (HEREINAFTER REFERRED TO AS THE RESPONDENT). THE
COMPLAINT ALLEGED THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (2)
OF THE EXECUTIVE ORDER 11491, AS AMENDED, (HEREINAFTER REFERRED TO AS
THE ORDER), AS A RESULT OF THE INTERROGATION OF MS. CAROLINE GOLDEN, A
STEWARD AND EXECUTIVE VICE PRESIDENT OF CHAPTER 78, NATIONAL TREASURY
EMPLOYEES UNION, AND AN EMPLOYEE OF THE RESPONDENT. IT WAS ALLEGED THAT
ON FEBRUARY 4, 1976, DURING THE COURSE OF A PROMOTIONAL INTERVIEW FOR A
COMPUTER PROGRAMMER TRAINEE POSITION, SHE WAS ASKED WHETHER HER UNION
BUSINESS TOOK HER AWAY FROM HER WORK.
ON DECEMBER 3, 1976, R. C. DEMARCO, REGIONAL ADMINISTRATOR,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, CHICAGO REGION, APPROVED THE
COMPLAINANT'S WITHDRAWAL OF THE SECTION 19(A)(2) ALLEGATION AND ISSUED A
NOTICE OF HEARING BASED ON THE ALLEGED VIOLATION OF SECTION 19(A)(1) OF
THE ORDER. PURSUANT THERETO, A HEARING WAS HELD IN DETROIT, MICHIGAN ON
MARCH 1, 1977. BOTH PARTIES WERE REPRESENTED BY COUNSEL AT THE HEARING,
AND WERE AFFORDED FULL OPPORTUNITY TO CALL AND EXAMINE WITNESSES, ADDUCE
EVIDENCE, AND FILE BRIEFS.
THE RESPONDENT DENIES THAT THE INTERROGATION OCCURRED, AND ARGUES
THAT THE COMPLAINANT HAS NOT MET ITS BURDEN OF PROOF. RESPONDENT ALSO
ASSERTS THAT THE QUESTION, EVEN IF ASKED, WOULD NOT CONSTITUTE A
VIOLATION OF SECTION 19(A)(1). UPON THE ENTIRE RECORD AND MY
OBSERVATION OF WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS TO THE ASSISTANT SECRETARY.
FINDINGS OF FACT
DURING A PERIOD BEGINNING IN THE LATTER PART OF JANUARY 1976, AND
LASTING ABOUT A MONTH, APPROXIMATELY TWO HUNDRED APPLICANTS WERE
INTERVIEWED AT THE DETROIT DATA CENTER FOR THE PURPOSE OF FILLING
EIGHTEEN TO TWENTY COMPUTER PROGRAMMER TRAINEE POSITIONS. THESE
INTERVIEWS, ABOUT FIFTEEN TO THIRTY MINUTES IN LENGTH, WERE CONDUCTED BY
A SERIES OF THREE PANELS, EACH OF WHICH WAS STAFFED BY THREE
SUPERVISORS. MS. GOLDEN'S INTERVIEW WAS ONE OF EIGHT OR NINE CONDUCTED
BY SUCH A PANEL ON FEBRUARY 4, 1976. SHE WAS NOT SELECTED FOR THE
POSITION. THE PANEL WHICH INTERVIEWED HER INCLUDED GROVER PINKERTON,
EDWARD BUGGEL AND ALAN SCHREIER. MS. GOLDEN TESTIFIED THAT GROVER
PINKERTON POSED THE QUESTION INDICATIVE OF A POSSIBLE CONFLICT BETWEEN
WORK ASSIGNMENTS AND UNION ACTIVITY DURING THE LATTER PORTION OF THE
INTERVIEW.
THE TESTIMONY OF THE THREE PANEL MEMBERS WAS INCONCLUSIVE WITH
RESPECT TO THE QUESTION OF WHETHER OR NOT THE INQUIRY WAS POSED, AS EACH
COULD NOT RECALL THE SPECIFIC QUESTIONS ASKED MS. GOLDEN, AND EACH
ACKNOWLEDGED THAT THE OBJECTIONABLE QUESTION COULD HAVE BEEN ASKED.
SINCE THE PANEL INTERVIEWED ABOUT SEVENTY APPLICANTS, IT WAS NOT
POSSIBLE FOR THE PANEL MEMBERS TO RECALL WITH PARTICULARITY, DETAILS
RELATING TO EACH INTERVIEW. HOWEVER, MS. GOLDEN APPEARED TO BE A
CREDIBLE WITNESS IN ALL RESPECTS AND I FIND NO REASON TO DOUBT HER
TESTIMONY.
IT CLEARLY APPEARED THAT THE SUBJECT OF UNION ACTIVITY WAS INTRODUCED
IN THE FIRST INSTANCE BY MS. GOLDEN WHEN THE PANEL INQUIRED GENERALLY
ABOUT HER INTERESTS, AND HER ABILITY TO RELATE TO PEOPLE. /1/ IN
RESPONSE SHE VOLUNTEERED THAT SHE WAS A UNION STEWARD, AND THAT SHE
LIKED DEALING WITH PEOPLE AND THEIR PROBLEMS. BOTH MR. BUGGELL AND MR.
SCHREIER CORROBORATED MS. GOLDEN IN THIS REGARD, AS THEY RECALLED THE
SUBJECT MAY HAVE BEEN BROACHED BY MS. GOLDEN IN RESPONSE TO A GENERAL
INQUIRY ENTIRELY UNRELATED TO MS. GOLDEN'S UNION ACTIVITY.
AS NOTED ALL THREE PANEL MEMBERS HAD NO RECOLLECTION OF THE QUESTION
OBJECTED TO HEREIN, AND JUDGING THEIR DEMEANOR AND RESPONSE TO
INTERROGATION, I HAVE NO REASON TO DOUBT THEIR TESTIMONY. IT MUST BE
CONSIDERED THAT THEY ATTACHED NO SIGNIFICANCE TO THE INQUIRY FROM THE
STANDPOINT OF EVALUATING MS. GOLDEN'S SUITABILITY FOR THE COMPUTER
PROGRAMMER TRAINEE POSITION.
NEITHER MR. PINKERTON, NOR MR. BUGGELL WERE AWARE OF MS. GOLDEN'S
UNION ACTIVITY PRIOR TO THE INTERVIEW. MR. SCHREIER ACKNOWLEDGED THAT
HE WAS AWARE OF HER UNION AFFILIATION PRIOR TO THE INTERVIEW, HOWEVER,
NO SPECIAL SIGNIFICANCE CAN BE ATTACHED TO MR. SCHREIER'S KNOWLEDGE.
THERE WAS NO DISCUSSION OF HER UNION AFFILIATION BY THE PANEL DURING THE
INTERVIEW OR IN THE RATING PROCESS CONDUCTED BY THE PANEL. NONE OF THE
PANEL MEMBERS WERE INVOLVED IN THE SELECTIONS MADE TO FILL THE POSITIONS
AND THE RECORD REFLECTS NO EVIDENCE THAT MEMBERS OF THE PANEL DISCUSSED
MS. GOLDEN WITH THE OFFICIAL CHARGED WITH THE RESPONSIBILITY OF
DETERMINING THE SUCCESSFUL APPLICANTS FOLLOWING A TWO-STEP RATING
PROCESS.
EACH APPLICANT WAS RATED ON THE BASIS OF A COMPOSITE SCORE OBTAINED
FROM PERFORMANCE EVALUATIONS, AWARDS, EXPERIENCE, TRAINING RECEIVED, AND
THE ORAL INTERVIEW. MS. GOLDEN'S FINAL RATING IS NOT REFLECTED IN THE
RECORD, NOR WERE THOSE RECEIVED BY OTHERS INTERVIEWED.
THE RESULTS OF PANEL INTERVIEWS WERE TURNED OVER TO THE PERSONNEL
DEPARTMENT FOR FURTHER RATING OF FACTORS REFLECTED IN PERSONNEL FOLDERS.
ALTHOUGH IT APPEARED THAT MR. PINKERTON ALONG WITH TWO OTHERS
PARTICIPATED IN THIS SECOND STEP OF THE RATING PROCESS, THERE IS NO
EVIDENCE THAT HE ACTUALLY RATED MS. GOLDEN'S PERSONNEL FILE FOLDER AFTER
THE INTERVIEW. /2/ THERE WAS NO EVIDENCE OF ANY DISCUSSION OF MS.
GOLDEN'S UNION STATUS DURING THE FINAL RATING ASSIGNED TO FACTORS
REFLECTED IN PERSONNEL FOLDERS, AND MR. PINKERTON DENIED THAT THE TOPIC
WAS EVER RAISED.
FURTHER SUPPORT FOR THE FINDING THAT MS. GOLDEN'S UNION STATUS PLAYED
NO ROLE IN THE RATING PROCESS IS REFLECTED BY THE FACT THAT SHE WAS
ASSIGNED ABOVE AVERAGE RATINGS OF "4" BY ALL PANEL MEMBERS IN CATEGORIES
OF -NTEREST RELATING TO COMMUNICATION SKILLS AND INTER-PERSONAL SKILLS.
/3/ THE EVIDENCE DISCLOSES THAT MS. GOLDEN'S DISCUSSION OF UNION
ACTIVITY AROSE IN CONNECTION WITH THESE ELEMENTS OF THE INTERVIEW.
(JOINT EXHIBITS 1-3). MOREOVER, THE PANEL'S EVALUATION OF MS. GOLDEN
CHARACTERIZED HER AS BEING VERY SENSITIVE TO OTHERS AND VERY INTERESTED
IN CREATING A HARMONIOUS WORK ENVIRONMENT. (ASSISTANT SECRETARY EXHIBIT
5). THESE EVALUATIVE FACTORS COUPLED WITH WHAT APPEARED TO BE A CLEAR
SHOWING THAT NO SIGNIFICANCE COULD HAVE BEEN ATTRIBUTED TO THE QUESTION
BY THE PANEL, AND THE FACT THAT MS. GOLDEN FIRST BROACHED THE SUBJECT ON
HER OWN BEHALF AS A TOPIC OF DISCUSSION, LEADS TO THE INESCAPABLE
CONCLUSION THAT THE INTERROGATION DID NOT PREJUDICE THE PROMOTIONAL
INTERVIEW. THAT IS, THERE HAS BEEN NO SHOWING THAT THE INQUIRY DEPRIVED
HER OF A FAIR OPPORTUNITY TO COMPETE FOR PROMOTION. /4/
IT IS CLEAR FROM THE RECORD DEVELOPED THAT, ALTHOUGH INNOCUOUS FROM
THE STANDPOINT OF THE RATING PROCESS UTILIZED TO DETERMINE SUCCESSFUL
APPLICANTS, THE INQUIRY DID GIVE HER THE IMPRESSION THAT MANAGEMENT MAY
HAVE FELT SHE WAS SPENDING TOO MUCH OF HER TIME ON UNION BUSINESS, AND
THAT HER UNION ACTIVITIES WOULD TEND TO INTERFERE WITH HER PROSPECTS FOR
PROMOTION. SHE WAS UPSET BY THE QUESTION AND FELT SHE WOULD NOT BE
SELECTED BECAUSE OF HER UNION AFFILIATION. OF THE COMPLAINANT UNION
IMMEDIATELY AFTER THE FEBRUARY 4, 1976 INTERVIEW. THIS IN TURN LED TO
THE FILING OF A FORMAL CHARGE ON APRIL 7, 1976. IN THIS REGARD THE
RECORD REFLECTED THAT RESPONSIBILITY FOR THE PREPARATION OF UNFAIR LABOR
PRACTICE CHARGES RESTED WITH THE NATIONAL OFFICE OF THE NATIONAL
TREASURY EMPLOYEES UNION.
DISCUSSION AND CONCLUSIONS
THE LANGUAGE OF SECTION 19(A)(1) OF THE ORDER IS DESIGNED TO PREVENT
EMPLOYERS FROM INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES IN
THE EXERCISE OF RIGHTS GUARANTEED TO THEM. SECTION 1(A) OF THE ORDER
PROVIDES:
SECTION 1. POLICY. (A) 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 IN THE CAPACITY OF AN
ORGANIZATION
REPRESENTATIVE, INCLUDING PRESENTATION OF ITS VIEWS TO OFFICIALS OF
THE EXECUTIVE BRANCH, THE
CONGRESS, OR OTHER APPROPRIATE AUTHORITY. 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, AND THAT NO INTERFERENCE, RESTRAINT, COERCION, OR
DISCRIMINATION IS PRACTICED WITHIN
HIS AGENCY TO ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR
ORGANIZATION.
IT IS CLEAR THAT THE RIGHT TO ENGAGE IN UNION ACTIVITIES, WOULD BE
SERIOUSLY JEOPARDIZED IF EMPLOYEES ARE INTERROGATED ABOUT THE
RELATIONSHIP BETWEEN UNION ACTIVITY AND WORK PERFORMANCE. THE DOCTRINE
HAS BECOME WELL ENTRENCHED IN THE PRIVATE SECTOR, THAT, ABSENT SOME
LEGITIMATE PURPOSE, AN EMPLOYER MUST NOT INTERROGATE HIS EMPLOYEES
REGARDING THEIR UNION ACTIVITIES.
IN SUCH INSTANCES, INTERROGATION CONSTITUTES INTERFERENCE WITH THE
RIGHTS OF EMPLOYEES TO FEEL FREE IN JOINING AND ASSISTING LABOR
ORGANIZATIONS. THE ASSISTANT SECRETARY HAS, IN VANDENBERG AIR FORCE
BADE, 4329 AEROSPACE SUPPORT GROUP, A/SLMR NO. 383, CONCLUDED THAT
LIKEWISE IN THE FEDERAL SECTOR A SUPERVISOR'S INTERROGATION OF EMPLOYEES
WITH RESPECT TO THEIR UNION ACTIVITIES MAY BE VIOLATIVE OF SECTION
19(A)(1) OF THE ORDER. SEE ALSO OFFICE OF ECONOMIC OPPORTUNITY, REGION
V, CHICAGO, ILLINOIS, A/SLMR NO. 477; INTERNAL REVENUE SERVICE,
WILMINGTON, DELAWARE DISTRICT, A/SLMR NO. 516; FEDERAL ENERGY
ADMINISTRATION, REGION IV, ATLANTA, GEORGIA, A/SLMR NO. 541; DEPARTMENT
OF THE ARMY, UNITED STATES ARMY TRANSPORTATION CENTER AND FORT EUSTIS,
VIRGINIA, A/SLMR NO. 681 (DICTUM); AND DEPARTMENT OF THE NAVY, MARE
ISLAND NAVAL SHIPYARD, A/SLMR NO. 775.
IN THIS CASE THE SUBJECT WAS FIRST RAISED BY THE EMPLOYEE INVOLVED
DURING THE INITIAL PHASE OF THE PROMOTIONAL INTERVIEW. THE TOPIC WAS
THEN DROPPED ENTIRELY, AND NOT RAISED AGAIN UNTIL MR. PINKERTON INQUIRED
WHETHER MS. GOLDEN'S UNION BUSINESS TOOK HER AWAY FROM HER WORK. IN
THIS CONTEXT THE COERCIVE NATURE OF THE INQUIRY BECOMES APPARENT. IT
WAS LOGICAL FOR MS. GOLDEN TO CONCLUDE THAT THE PURSUIT OF UNION
REPRESENTATIONAL WORK WOULD TEND TO UNDERMINE HER PROSPECTS FOR
PROMOTION. THIS LEADS TO THE CONCLUSION THAT THE INQUIRY OPERATED TO
INTERFERE WITH HER RIGHT TO BE A UNION MEMBER, THE RIGHT TO PARTICIPATE
IN THE MANAGEMENT OF A LABOR ORGANIZATION, AND THE RIGHT TO ACT AS A
LABOR ORGANIZATION REPRESENTATIVE. I THEREFORE FIND AND CONCLUDE THAT
THE INQUIRY CONSTITUTED INTERFERENCE, RESTRAINT OR COERCION UNDER
SECTION 19(A)(1) OF THE ORDER.
COUNSEL FOR THE COMPLAINANT ARGUES THAT THE RESPONDENT SHOULD BE
ORDERED TO RERUN THE PROMOTIONAL INTERVIEW BECAUSE THE TAINT OF THE
SECTION 19(A)(1) VIOLATION WAS SO SEVERE AS TO MAKE THIS REMEDY
NECESSARY. DEPARTMENT OF THE NAVY, MARE ISLAND NAVAL SHIPYARD, A/SLMR
NO. 775 IS CITED AS AUTHORITY FOR THIS REMEDY. IN THE CITED CASE THE
COMPLAINANT ALLEGED THAT THE RESPONDENT ACTIVITY HAD VIOLATED SECTIONS
19(A)(1) AND (2) OF THE ORDER BY INTERROGATING AN EMPLOYEE ABOUT HIS
ACTIVITIES AS A UNION STEWARD DURING A JOB PROMOTION INTERVIEW AND BY
FAILING TO PROMOTE HIM BECAUSE OF HIS UNION ACTIVITIES. HOWEVER, IN
A/SLMR NO. 775 THE PATTERN OF QUESTIONING CONCERNING UNION ACTIVITY
DURING THE PROMOTIONAL INTERVIEW WAS EXTENSIVE, AND BECAME THE DOMINANT
THEME OF THE INTERVIEW. ALTHOUGH NO EVIDENCE OF DISCRIMINATION WITHIN
THE MEANING OF SECTION 19(A)(2) WAS FOUND, THE ADMINISTRATIVE LAW JUDGE
HELD THAT THE CONDUCT VIOLATED THE SELECTION PROCESS AS A MEANS OF MERIT
PROMOTION. BECAUSE OF THIS FACTOR HE RECOMMENDED THAT CANDIDATES FOR
THE PROMOTION BE INTERVIEWED AGAIN IN AN ATMOSPHERE FREE OF ANY
REFERENCE TO UNION MEMBERSHIP OR ACTIVITIES. IT IS CLEAR FROM THE FACTS
ADDUCED IN THIS CASE THAT THE INTERVIEW WAS NOT SO TAINTED. THERE IS NO
INDICATION OF PREJUDICE HERE, AND I FIND NO BASIS FOR RECOMMENDING SUCH
A REMEDY.
RECOMMENDATION
HAVING FOUND THAT THE RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT WHICH
IS VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER, I RECOMMEND THAT THE
ASSISTANT SECRETARY ADOPT THE FOLLOWING ORDER DESIGNED TO EFFECTUATE THE
PURPOSE OF EXECUTIVE ORDER 11491.
RECOMMENDED ORDER
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 UNITED STATES DEPARTMENT OF
THE TREASURY, INTERNAL REVENUE SERVICE, DETROIT DATA CENTER, DETROIT,
MICHIGAN, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERROGATING ITS EMPLOYEES AS TO THE RELATIONSHIP BETWEEN THEIR
UNION ACTIVITIES AND THEIR WORK PERFORMANCE.
(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 AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) POST AT ITS FACILITY AT THE UNITED STATES DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE, DETROIT DATA CENTER, DETROIT,
MICHIGAN, 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 AN
APPROPRIATE MANAGEMENT OFFICIAL 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. SAID OFFICIAL SHALL TAKE REASONABLE
STEPS TO INSURE THAT SAID 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 TWENTY DAYS FROM THE DATE OF
THIS ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
DATED: APRIL 13, 1977
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT
RELATIONS AND IN ORDER TO EFFECTUATE THE POLICIES OF
EXECUTIVE ORDER 11491, AS AMENDED LABOR-MANAGEMENT
RELATIONS IN THE FEDERAL SERVICE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INTERROGATE OUR EMPLOYEES AS TO THE RELATIONSHIP BETWEEN
THEIR WORK PERFORMANCE AND THEIR ACTIVITIES OR AFFILIATION WITH THE
NATIONAL TREASURY EMPLOYEES UNION, OR ANY OTHER LABOR ORGANIZATION.
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.
(AGENCY OR ACTIVITY)
DATED:
BY:
(SIGNATURE)