8 FLRA 14' FLRA 0-AR-118; FEBRUARY 10, 1982.
CORPS OF ENGINEERS,
KANSAS CITY DISTRICT
ACTIVITY
AND
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 29
UNION
CASE NO. 0-AR-118
DECISION
THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
ARBITRATOR HENRY M. GRETHER FILED BY THE UNION UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
7122(A)).
ACCORDING TO THE ARBITRATOR, THIS MATTER CONCERNS THE REMOVAL OF THE
GRIEVANT FROM HIS POSITION AS A CLERK TYPIST DURING HIS PROBATIONARY
PERIOD FOR UNACCEPTABLE WORK PERFORMANCE. THE GRIEVANT FILED A
GRIEVANCE PROTESTING HIS REMOVAL AND CLAIMING THAT HE WAS NOT GIVEN A
FULL AND FAIR TRIAL PERIOD PRIOR TO HIS SEPARATION AND THAT HE HAD BEEN
GIVEN NO REASON TO BELIEVE THAT HIS WORK PERFORMANCE WAS UNSATISFACTORY.
THE GRIEVANCE WAS ULTIMATELY SUBMITTED TO ARBITRATION WITH THE
ARBITRATOR STATING THE ISSUES AS FOLLOWS:
(1) IS THIS GRIEVANCE GRIEVABLE/ARBITRABLE UNDER THE TERMS OF THE
AGREEMENT AS THOSE TERMS
ARE AFFECTED BY CONTROLLING LAW?
(2) WAS THE GRIEVANT GIVEN A FULL AND FAIR TRAIL PERIOD PRIOR TO HIS
SEPARATION?
THE ARBITRATOR DETERMINED THAT THE FIRST QUESTION TO BE DECIDED WAS
WHETHER THE GRIEVANCE WAS GRIEVABLE AND ARBITRABLE. CONCLUDING THAT
GRIEVANCES OVER MANAGEMENT'S DECISION AS TO WHETHER TO RETAIN A
PROBATIONARY EMPLOYEE HAD BEEN EXCLUDED BY LAW FROM COVERAGE BY A
NEGOTIATED GRIEVANCE PROCEDURE, THE ARBITRATOR RULED THAT THE GRIEVANCE
WAS NOT GRIEVABLE OR ARBITRABLE AND THAT THEREFORE HE LACKED
JURISDICTION TO DECIDE THE MERITS OF THE GRIEVANCE. SPECIFICALLY, THE
ARBITRATOR DETERMINED THAT
THE PROBATIONARY PERIOD, INCLUDING THE DISCRETIONARY DECISION OF
WHETHER TO CONTINUE TO
PROBATIONER'S EMPLOYEMENT BEYOND THAT PERIOD, COMES WITHIN THE
STATUTORY EXCLUSIONARY LANGUAGE
OF 5 U.S.C. SEC 7121(C)(4). /1/ THIS IS SO BECAUSE IT FALLS WITHIN
THE MEANING OF THE
PHRASE, "ANY EXAMINATION, CERTIFICATION, OR APPOINTMENT."
ACCORDINGLY, THE ARBITRATOR'S AWARD WAS AS FOLLOWS:
WITHOUT DECIDING THE MERITS, THIS GRIEVANCE IS DENIED ON THE GROUNDS
THAT IT IS NOT
GRIEVABLE/ARBITRABLE.
THE UNION HAS FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER
SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE /2/ AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5
CFR PART 2425, CONTENDING THAT THE AWARD IS CONTRARY TO SECTION
7121(C)(4) OF THE STATUTE. THE AGENCY FILED AN OPPOSITION. IN
ADDITION, THE OFFICE OF PERSONNEL MANAGEMENT, THE NATIONAL TREASURY
EMPLOYEES UNION, AND THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
EACH FILED AMICUS CURIAE BRIEFS PURSUANT TO SECTION 2429.9 OF THE
AUTHORITY'S RULES AND REGULATIONS.
THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
UNION'S EXCEPTION, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS
CONTRARY TO ANY LAW, RULE, OR REGULATION, OR IS DEFICIENT ON OTHER
GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR
LABOR-MANAGEMENT RELATIONS CASES.
THE UNION'S EXCEPTION THAT THE AWARD IS CONTRARY TO SECTION
7121(C)(4) OF THE STATUTE STATES A GROUND UPON WHICH THE AUTHORITY WILL
FIND AN AWARD DEFICIENT UNDER SECTION 7122(A)(1) OF THE STATUTE. AS WAS
NOTED, THE ARBITRATOR DETERMINED THAT GRIEVANCES OVER MANAGEMENT'S
DECISION AS TO WHETHER TO RETAIN A PROBATIONARY EMPLOYEE HAD BEEN
EXCLUDED FROM THE PERMISSIBLE COVERAGE OF A NEGOTIATED GRIEVANCE
PROCEDURE BY THE LANGUAGE OF SECTION 7121(C)(4) OF THE STATUTE WHICH
EXCLUDES GRIEVANCES CONCERNING "ANY EXAMINATION, CERTIFICATION, OR
APPOINTMENT." ON THIS BASIS ALONE, HE RULED THAT HE HAD NO JURISDICTION
TO HEAR THE MERITS OF THE GRIEVANCE AND ACCORDINGLY DENIED THE GRIEVANCE
AS NOT GRIEVABLE OR ARBITRABLE. THUS, THIS AWARD BEARS NO MATERIAL
DIFFERENCE FROM THE AWARD REVIEWED BY THE AUTHORITY IN NATIONAL COUNCIL
OF FIELD LABOR LOCALS OF THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO AND UNITED STATES DEPARTMENT OF LABOR, 4 FLRA NO.
51(1980). IN THAT CASE THE AUTHORITY FOUND DEFICIENT AS CONTRARY TO
SECTION 7121 OF THE STATUTE THE ARBITRATOR'S AWARD WHICH RULED THAT THE
LANGUAGE OF SECTION 7121(C)(4), EXCLUDING GRIEVANCES CONCERNING "ANY
EXAMINATION, CERTIFICATION, OR APPOINTMENT," PROSCRIBES THE USE OF A
NEGOTIATED GRIEVANCE PROCEDURE AND ARBITRATION TO GRIEVE THE SEPARATION
OF A PROBATIONARY EMPLOYEE. IN SETTING ASIDE THE AWARD IN THAT CASE,
THE AUTHORITY CONSIDERED AND REJECTED ARGUMENTS IDENTICAL TO THOSE MADE
IN THIS CASE BY THE AGENCY AND THE OFFICE OF PERSONNEL MANAGEMENT AND
DETERMINED THAT
NOTHING IN THE LANGUAGE OF SECTION 7121(C)(4), OR IN THE LEGISLATIVE
HISTORY OF THE
STATUTE, (INDICATES) THAT CONGRESS INTENDED TO EXCLUDE GRIEVANCES OR
ARBITRATION OVER THE
TERMINATION OF PROBATIONERS WHEN IT EXCLUDED GRIEVANCES RESPECTING
"ANY EXAMINATION,
CERTIFICATION, OR APPOINTMENT" FROM THE SCOPE OF PERMISSIBLE COVERAGE
BY NEGOTIATED GRIEVANCE
PROCEDURES.
THEREFORE, BASED ON THE REASONS SET FORTH IN GREATER DETAIL IN
NATIONAL COUNCIL OF FIELD LABOR LOCALS, THE AUTHORITY FINDS THAT THE
ARBITRATOR'S AWARD IN THIS CASE DENYING THE GRIEVANCE AS NOT GRIEVABLE
OR ARBITRABLE IS DEFICIENT BECAUSE IT IS CONTRARY TO SECTION 7121 OF THE
STATUTE AND MUST BE SET ASIDE.
ACCORDINGLY, PURSUANT TO SECTION 7122(A) OF THE STATUTE AND SECTION
2425.4 OF THE AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S AWARD
IS SET ASIDE.
ISSUED, WASHINGTON, D.C., FEBRUARY 10, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B.FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ 5 U.S.C. 7121(C)(4) PROVIDES:
SEC 7121. GRIEVANCE PROCEDURES
(C) THE PRECEDING SUBSECTIONS OF THIS SECTION SHALL NOT APPLY WITH
RESPECT TO ANY GRIEVANCE
CONCERNING--
(4) ANY EXAMINATION, CERTIFICATION, OR APPOINTMENT(.)
/2/ 5 U.S.C. 7122(A) PROVIDES:
(A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
AUTHORITY AN EXCEPTION TO ANY ARBITRATOR'S AWARD PURSUANT TO THE
ARBITRATION (OTHER THAN AN AWARD RELATING TO A MATTER DESCRIBED IN
SECTION 7121(F) OF THIS TITLE). IF UPON REVIEW THE AUTHORITY FINDS THAT
THE AWARD IS DEFICIENT--
(1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION; OR
(2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
PRIVATE SECTOR
LABOR-MANAGEMENT RELATIONS:
THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
CONCERNING THE AWARD AS IT CONSIDERS NECESSARY, CONSISTENT WITH
APPLICABLE LAWS, RULES, OR REGULATIONS.
8 FLRA 13; FLRA 1-CA-274; FEBRUARY 8, 1982.
U.S. DEPARTMENT OF THE ARMY
94TH U.S. ARMY RESERVE COMMAND
HANSCOM AIR FORCE BASE
MASSACHUSETTS
RESPONDENT
AND
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1900
CHARGING PARTY
CASE NO. 1-CA-274
DECISION AND ORDER
THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO REGIONAL DIRECTOR
EDWARD S. DAVIDSON'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR
RELATIONS AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2429.1(A)).
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY
FINDS:
THE GENERAL COUNSEL ALLEGED IN THE COMPLAINT THAT THE RESPONDENT
VIOLATED SECTION 7116(A)(1) AND (8) OF THE STATUTE /1/ WHEN IT REFUSED
TO GRANT OFFICIAL TIME TO ONE OF ITS EMPLOYEES WHILE HE REPRESENTED
EMPLOYEES OF ANOTHER COMMAND IN CONTRACT NEGOTIATIONS WITH THE LATTER
COMMAND. THE ALLEGATION IS THAT THE DENIAL OF OFFICIAL TIME UNDER THESE
CIRCUMSTANCES IS CONTRARY TO THE REQUIREMENTS OF SECTION 7131(A) OF THE
STATUTE. /2/ THE RESPONDENT DENIES THAT ITS ACTION AMOUNTED TO AN
UNFAIR LABOR PRACTICE. THE QUESTION, THUS, IS WHETHER THE RESPONDENT IS
REQUIRED BY SECTION 7131(A) TO GRANT OFFICIAL TIME TO ITS EMPLOYEES
WHILE THEY ARE ENGAGED IN NEGOTIATING AN AGREEMENT ON BEHALF OF
EMPLOYEES OF A SEPARATE AND DISTINCT COMMAND.
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1900 (THE
UNION) IS THE EXCLUSIVE REPRESENTATIVE OF A BARGAINING UNIT OF EMPLOYEES
LOCATED AT HANSCOM AIR FORCE BASE, BEDFORD, MASSACHUSETTS WHO ARE
EMPLOYEES OF THE RESPONDENT, DEPARTMENT OF THE ARMY, 94TH U.S. ARMY
RESERVE COMMAND. THE UNION IS ALSO THE EXCLUSIVE REPRESENTATIVE OF
SEVERAL OTHER UNITS, INCLUDING ONE CONSISTING OF EMPLOYEES OF THE
CONCORD DISTRICT RECRUITING COMMAND, CONCORD, NEW HAMPSHIRE, WHICH IS
PART OF THE U.S. ARMY RECRUITING COMMAND.
BOTH THE RESPONDENT AND THE U.S. ARMY RECRUITING COMMAND ARE
SUBORDINATE ELEMENTS OF THE DEPARTMENT OF ARMY. HOWEVER, THE PARTIES
STIPULATED, AND THE AUTHORITY FINDS, THAT THEY ARE SEPARATE
ORGANIZATIONS IN TERMS OF FUNCTION AND MISSION AND ARE NOT INTERRELATED
IN ANY ORGANIZATIONAL MANNER. THE STIPULATION SHOWS THAT THEY HAVE
SEPARATE MISSIONS, ORGANIZATIONS, AND CHAINS OF COMMAND.
JOHN ESPOSITO IS AN EMPLOYEE OF THE RESPONDENT. HE IS THE PRESIDENT
OF LOCAL 1900 AND THE UNION'S CHIEF NEGOTIATOR IN CONTRACT BARGAINING.
ON OR ABOUT FEBRUARY 6, 1980, ESPOSITO REQUESTED THAT THE RESPONDENT
GRANT OFFICIAL TIME TO HIM FOR THE TIME HE WOULD BE ENGAGED IN
NEGOTIATING A COLLECTIVE BARGAINING AGREEMENT ON BEHALF OF THE UNION
WITH THE CONCORD DISTRICT RECRUITING COMMAND. THE RESPONDENT DENIED AND
CONTINUES TO DENY THAT REQUEST ON THE GROUND THAT THERE IS NO
REQUIREMENT UNDER SECTION 7131(A) THAT IT GRANT OFFICIAL TIME TO ITS OWN
EMPLOYEES WHILE THEY REPRESENT EMPLOYEES OF A COMPLETELY SEPARATE
COMMAND IN CONTRACT NEGOTIATIONS WITH THAT COMMAND. THE GENERAL COUNSEL
CONTENDS THAT THE RESPONDENT'S REFUSAL TO GRANT OFFICIAL TIME IS
CONTRARY TO THE REQUIREMENT OF SECTION 7131(A) AND THEREFORE VIOLATED
SECTION 7116(A)(1) AND (8) OF THE STATUTE.
BASED ON ITS DECISION AND RATIONALE IN UNITED STATES AIR FORCE,
2750TH AIR BASE WING HEADQUARTERS, AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AFB, OHIO. 7 FLRA NO. 118(1982), IN WHICH IT WAS HELD
THAT OFFICIAL TIME ENTITLEMENT UNDER SECTION 7131(A) ACCRUES ONLY TO AN
EMPLOYEE, SERVING AS A REPRESENTATIVE OF AN EXCLUSIVE REPRESENTATIVE,
WHO IS A MEMBER OF THE BARGAINING UNIT TO WHICH THE RIGHT TO NEGOTIATE
THE COLLECTIVE BARGAINING AGREEMENT APPLIES, THE AUTHORITY FINDS THAT
THE RESPONDENT DID NOT VIOLATE SECTION 7116(A)(1) AND (8) OF THE STATUTE
AND THAT THE COMPLAINT SHOULD BE DISMISSED.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 1-CA-274 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., FEBRUARY 8, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ SEC. 7116. UNFAIR LABOR PRACTICES
(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY--
(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE BY THE EMPLOYEE OF
ANY RIGHT UNDER THIS CHAPTER;
(8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
CHAPTER.
/2/ SEC. 7131. OFFICIAL TIME
(A) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE
NEGOTIATION OF A
COLLECTIVE BARGAINING AGREEMENT UNDER THIS CHAPTER SHALL BE
AUTHORIZED OFFICIAL TIME FOR SUCH
PURPOSES, INCLUDING ATTENDANCE AT IMPASSE PROCEEDING, DURING THE TIME
THE EMPLOYEE OTHERWISE
WOULD BE IN A DUTY STATUS. THE NUMBER OF EMPLOYEES FOR WHOM OFFICIAL
TIME IS AUTHORIZED UNDER
THIS SUBSECTION SHALL NOT EXCEED THE NUMBER OF INDIVIDUALS DESIGNATED
AT REPRESENTING THE
AGENCY FOR SUCH PROPOSES.
8 FLRA 12; FLRA 8-CO-6; FEBRUARY 4, 1982.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, INTERDEPARTMENTAL
LOCAL 3723, AFL-CIO
RESPONDENT
AND
DEPARTMENT OF THE NAVY
SAN DIEGO, CALIFORNIA
CHARGING PARTY
CASE NO. 8-CO-6
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION AND ORDER
IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD
ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTIONS. EXCEPTIONS TO THE JUDGE'S DECISION AND ORDER WERE
FILED BY THE RESPONDENT.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND ORDER AND THE ENTIRE RECORD, THE AUTHORITY HEREBY
ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS ONLY TO THE
EXTENT CONSISTENT HEREWITH.
THE COMPLAINT HEREIN ALLEGED, IN SUBSTANCE, THAT THE RESPONDENT UNION
VIOLATED SECTION 7116(B)(5) OF THE STATUTE BY REFUSING TO REFER A
GRIEVANCE FILED BY THE ACTIVITY (CHARGING PARTY) TO ARBITRATION ON THE
BASIS OF ITS CONTENTION THAT MANAGEMENT HAD NO RIGHT TO FILE A GRIEVANCE
UNDER THE PARTIES NEGOTIATED AGREEMENT. /1/ THE COMPLAINT FURTHER
ALLEGED THAT RESPONDENT VIOLATED SECTION 7116(B)(8) OF THE STATUTE /2/
BY FAILING TO COMPLY WITH SECTION 7121(A)(1) THEREOF. /3/
THE JUDGE CONCLUDED THAT RESPONDENT'S UNILATERAL REFUSAL TO PROCEED
TO ARBITRATION VIOLATED SECTION 7116(B)(5) OF THE STATUTE. HE FURTHER
CONCLUDED THAT RESPONDENT'S REFUSAL TO SUBMIT THE THRESHOLD ISSUE OF
ARBITRABILITY TO AN ARBITRATOR FOR RESOLUTION CONSTITUTED A FAILURE TO
COMPLY WITH SECTION 7121 OF THE STATUTE AND WAS THEREFORE A VIOLATION OF
SECTION 7116(B)(8). THE AUTHORITY DISAGREES WITH THESE CONCLUSIONS.
IN FEDERAL AVIATION ADMINISTRATION, ALASKAN REGIONAL OFFICE, 7 FLRA
NO. 23 (1981), DECIDED BY THE AUTHORITY AFTER THE JUDGE ISSUED HIS
DECISION IN THIS CASE, THE AUTHORITY HELD THAT, IN THE PARTICULAR
CIRCUMSTANCES OF THAT CASE, MANAGEMENT'S REFUSAL TO PERMIT ITS
SUPERVISORS TO APPEAR AT AN ARBITRATION PROCEEDING AS REQUESTED BY THE
UNION DID NOT VIOLATE SECTION 7116(A)(5) OF THE STATUTE. THE AUTHORITY
ADDITIONALLY CONCLUDED THAT THE REFUSAL BY MANAGEMENT TO PARTICIPATE IN
THE ARBITRATION PROCEEDING DID NOT CONSTITUTE A FAILURE TO COMPLY WITH
THE PROVISIONS OF SECTION 7121 OF THE STATUTE IN VIOLATION OF SECTION
7116(A)(8). IN SO CONCLUDING, THE AUTHORITY STATED:
(S)ECTION 7121(A)(1) REQUIRES THAT 'ANY COLLECTIVE BARGAINING
AGREEMENT SHALL PROVIDE
PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES, INCLUDING QUESTIONS OF
ARBITRABILITY,' AND
SECTION 7121(B)(3)(C) MANDATES THAT UNSETTLED GRIEVANCES SHALL BE
SUBJECT TO BINDING
ARBITRATION 'WHICH MAY BE INVOKED BY EITHER THE EXCLUSIVE
REPRESENTATIVE OR THE
AGENCY.' THEREFORE, EITHER PARTY MAY INVOKE ARBITRATION ON ISSUES
INVOLVING, INTER ALIA,
QUESTIONS OF ARBITRABILITY AND IT FOLLOWS THAT THE OTHER PARTY CANNOT
PREVENT THE ARBITRATION
FROM PROCEEDING BY REFUSING TO PARTICIPATE. THUS, NOTHING IN THE
STATUTE RENDERS THE EX PARTE
PROCEEDING IMPROPER, AND THE RESPONDENT ACTED AT ITS OWN RISK BY NOT
PARTICIPATING.
(W)HERE AS HERE, BINDING ARBITRATION IS INVOKED BY ONE PARTY, THE
OTHER PARTY REFUSES TO
PARTICIPATE AND THE ARBITRATOR DETERMINES TO PROCEED EX PARTE AND
ISSUES AN AWARD, THE REFUSAL
BY THE SECOND PARTY TO PARTICIPATE DOES NOT CONSTITUTE A REJECTION OF
THE COLLECTIVE
BARGAINING AGREEMENT IN VIOLATION OF SECTION 7116(A)(5) AND (1).
(FOOTNOTES OMITTED.)
THUS, FOR THE REASONS MORE FULLY STATED IN FEDERAL AVIATION
ADMINISTRATION, ALASKAN REGIONAL OFFICE, SUPRA, THE AUTHORITY SIMILARLY
CONCLUDES THAT INASMUCH AS THE CHARGING PARTY HEREIN COULD HAVE ITSELF
INVOKED AND PROCEEDED TO ARBITRATION WITH OR WITHOUT THE UNION'S
PARTICIPATION, THE RESPONDENT UNION HEREIN DID NOT VIOLATE SECTION
7116(B)(5) AND (8) OF THE STATUTE, AS ALLEGED, BY REFUSING TO REFER THE
CHARGING PARTY'S GRIEVANCE TO ARBITRATION. /4/ ACCORDINGLY, THE
AUTHORITY SHALL ORDER THAT THE COMPLAINT HEREIN BE DISMISSED IN ITS
ENTIRETY.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 8-CO-6 BE, AND IT
HEREBY IS, DISMISSED IN ITS ENTIRETY.
ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
ANTONIO G. SERRANO
CAROLYN M. BUTTERWORTH
FOR THE RESPONDENT
GERALD M. COLE, ESQUIRE
FOR THE GENERAL COUNSEL
ROBERT F. GRIEM, ESQUIRE
FOR THE CHARGING PARTY
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
PURSUANT TO A COMPLAINT AND NOTICE OF HEARING ISSUED ON FEBRUARY 28,
1980 BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY,
LOS ANGELES, CALIFORNIA REGION, A HEARING WAS HELD BEFORE THE
UNDERSIGNED ON MAY 15, 1980 AT SAN DIEGO, CALIFORNIA.
THIS PROCEEDING AROSE UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ. (HEREIN CALLED
THE ACT). IT IS BASED ON A CHARGE FILED ON JULY 30, 1979 BY DEPARTMENT
OF NAVY, NAVAL EXCHANGE, NAVAL STATION, SAN DIEGO, CALIFORNIA (HEREIN
CALLED THE EMPLOYER OR CHARGING PARTY) AGAINST AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, INTERDEPARTMENTAL LOCAL 3723, AFL-CIO (HEREIN
CALLED THE UNION OR RESPONDENT). THE SAID CHARGE ALLEGED, IN SUBSTANCE,
THAT RESPONDENT UNION VIOLATED SECTIONS 7116(B)(1)(5) AND (8) OF THE ACT
BY: (1) DIRECTING EMPLOYEE ADOR BERNAL NOT TO PROCESS A GRIEVANCE,
WHICH HAD BEEN PREVIOUSLY FILED, BECAUSE OF THE ATTENDANCE BY THE
ACTIVITY'S PERSONNEL OFFICER AT A GRIEVANCE MEETING; (2) REFUSING TO
ACKNOWLEDGE A GRIEVANCE FILED BY THE EMPLOYER AGAINST THE UNION, AND
THEREAFTER FILING AN UNFAIR LABOR PRACTICE CHARGE AGAINST THE EMPLOYER.
THE COMPLAINT AGAINST RESPONDENT HEREIN ALLEGED, IN SUBSTANCE, THAT
SINCE JULY 24, 1979 THE UNION REFUSED TO REFER TO ARBITRATION A
GRIEVANCE WHICH THE EMPLOYER HAD FILED ON JUNE 21, 1979 RE A DISPUTE
OVER THE INTERPRETATION OF A NEGOTIATED GRIEVANCE PROCEDURE BECAUSE IT
CONTENDED THE EMPLOYER HAS NO RIGHT UNDER THE NEGOTIATED AGREEMENT TO
FILE A GRIEVANCE; THAT BY SUCH CONDUCT RESPONDENT HAS REFUSED TO
BARGAIN IN GOOD FAITH IN VIOLATION OF SECTION 7116(B)(5) OF THE ACT. IT
IS FURTHER ALLEGED THAT RESPONDENT VIOLATED SECTION 7116(B)(8) OF THE
ACT BY FAILING TO COMPLY WITH SECTION 7121(A)(1) THEREOF.
A RESPONSE TO THE COMPLAINT WAS SERVED BY RESPONDENT ON MARCH 17,
1980. IN ADDITION TO DENYING THE COMMISSION OF ANY UNFAIR LABOR
PRACTICES, RESPONDENT ASSERTED THEREIN THAT THE EMPLOYER HAD NO RIGHT TO
FILE A GRIEVANCE UNDER THE NEGOTIATED AGREEMENT; THAT IF IT HAS SUCH
RIGHT, THE GRIEVANCE PROCEDURE SHOULD HAVE BEEN EXHAUSTED; AND THAT
SECTION 7121(A) OF THE ACT HAS NO APPLICATION TO THE PRESENT CASE SINCE
THE STATUTE BECAME EFFECTIVE AFTER THE DATE OF THE AGREEMENT.
BOTH PARTIES WERE REPRESENTED AT THE HEARING, EACH WAS 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 THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN THE RESPONDENT HAS BEEN THE
COLLECTIVE BARGAINING REPRESENTATIVE OF THE EMPLOYEES WHO ARE EMPLOYED
AT THE NAVY EXCHANGE, NAVAL STATION AT SAN DIEGO, CALIFORNIA.
2. BOTH THE EMPLOYER AND RESPONDENT HAVE BEEN, AND STILL ARE,
PARTIES TO A COLLECTIVE BARGAINING AGREEMENT COVERING ALL ELIGIBLE
EMPLOYEES OF THE NAVY EXCHANGE, NAVAL STATION, SAN DIEGO, BUT EXCLUDING
MANAGERS, SUPERVISORS, EMPLOYEES IN PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY AND TEMPORARY EMPLOYEES. THE SAID AGREEMENT,
BUT ITS TERMS, IS EFFECTIVE FROM NOVEMBER 30, 1978 FOR A PERIOD OF THREE
YEARS UNTIL NOVEMBER 30, 1981.
3. THE COLLECTIVE BARGAINING AGREEMENT PROVIDES INTER ALIA, AS
FOLLOWS:
ARTICLE VI (UNION REPRESENTATION)
"SECTION 7. THE PARTIES AGREE THAT DISCUSSIONS OR MEETINGS BETWEEN
SHOP STEWARDS IN THE
COURSE OF REPRESENTING AN EMPLOYEE SHALL BE WITH THE FIRST LEVELS OF
SUPERVISION. DISCUSSIONS
WITH DEPARTMENT MANAGERS, IN WHICH THE UNION IS REPRESENTING AN
EMPLOYEE, WILL NORMALLY
INVOLVE AN OFFICER OF THE UNION, WHO MAY BE ACCOMPANIED BY THE
APPROPRIATE SHOP STEWARD."
ARTICLE XXVII (GRIEVANCE PROCEDURE)
"SECTION 2. A GRIEVANCE IS DEFINED TO BE ANY DISPUTE OR COMPLAINT
BETWEEN THE EMPLOYER AND
THE UNION OR AN EMPLOYEE OR EMPLOYEES COVERED BY THIS AGREEMENT, AND
WHICH MAY PERTAIN TO ANY
OF THE FOLLOWING:
(1) ANY MATTER INVOLVING THE INTERPRETATION, APPLICATION, OR
VIOLATION OF THIS AGREEMENT
. . . "
"SECTION 3. QUESTIONS AS TO WHETHER OR NOT A GRIEVANCE IS ON A MATTER
FOR WHICH A STATUTORY
APPEAL PROCEDURE EXISTS, IF NOT RESOLVED BY THE PARTIES, SHALL BE
REFERRED TO THE ASSISTANT
SECRETARY FOR LABOR/MANAGEMENT RELATIONS FOR DECISION . . . ALL OTHER
DISPUTES OF GRIEVABILITY
OR ARBITRABILITY SHALL BE REFERRED TO ARBITRATION AS A THRESHOLD
ISSUE IN RELATED GRIEVANCES."
"SECTION 4. REASONABLE TIME DURING WORKING HOURS WILL BE ALLOWED THE
UNION, EMPLOYEES,
EMPLOYEE REPRESENTATIVES, AND WITNESSES TO DISCUSS, PREPARE FOR AND
PRESENT GRIEVANCES
INCLUDING ATTENDANCE OF MEETINGS WITH MANAGEMENT OFFICIALS AND FORMAL
HEARINGS."
"SECTION 6. EMPLOYEE PROCEDURE. THE FOLLOWING GRIEVANCE PROCEDURE
APPLIES TO THE EMPLOYEES
OF THE UNIT.
A. STEP 1. THE GRIEVANCE SHALL BE FIRST TAKEN UP ORALLY OR IN
WRITING BY THE CONCERNED
EMPLOYEE OR STEWARD WITH THE IMMEDIATE SUPERVISOR . . . "
ARTICLE XXVIII (ARBITRATION)
"SECTION 1. IF THE EMPLOYEE OR THE EMPLOYER AND THE UNION FAIL TO
SETTLE ANY GRIEVANCE
PROCESSED UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, SUCH GRIEVANCE,
UPON WRITTEN REQUEST BY
THE EMPLOYER OR THE UNION WITHIN 45 CALENDAR DAYS AFTER ISSUANCE OF
THE EXCHANGE OFFICER'S
DECISION MAY BE SUBMITTED TO ARBITRATION."
4. BY LETTER DATED JUNE 21, 1979 /5/ THE EMPLOYER INFORMED
RESPONDENT'S PRESIDENT, HILLARY E. HOLT, THAT IT DESIRED TO FILE A
GRIEVANCE "UPON THE INTERDEPARTMENTAL LOCAL 3723;" THAT IT FELT GRIEVED
SINCE THE UNION INTERFERED WITH MANAGEMENT'S RIGHT TO ENSURE IT COMPLIED
WITH THE PROVISIONS OF ARTICLE XXVII OF THE AGREEMENT. THE LETTER
STATED THAT ON JUNE 20, 1979 MANAGEMENT WAS REFUSED THE RIGHT TO HAVE AN
OFFICIAL PRESENT AT A STEP 1 GRIEVANCE MEETING AS PROVIDED BY ARTICLE
XXVII, SECTION 4; THAT ON JUNE 21, THE GRIEVANT AND HER REPRESENTATIVE
MET WITH A SUPERVISOR TO CONDUCT THE FIRST STEP GRIEVANCE PROCEEDING,
AND BOTH THE GRIEVANT AND HER REPRESENTATIVE REFUSED TO PROCEED BECAUSE
OF THE PRESENCE OF PAULA ALDEN, WHO WAS PERSONNEL OFFICER AND A
MANAGEMENT OFFICIAL.
5. IN ANSWER TO THE AFORESAID LETTER RESPONDENT FILED AN UNFAIR
LABOR PRACTICE CHARGE (8-CA-141) AGAINST THE EMPLOYER ALLEGING THAT BY
FILING A GRIEVANCE ON JUNE 21 IT: (A) DELAYED THE PROCESSING OF A
GRIEVANCE BY INSISTING THAT ALDEN BE PRESENT DURING A FIRST STEP
GRIEVANCE; (B) UNILATERALLY CHANGED WORKING CONDITIONS INCONSISTENT
WITH THE WRITTEN AGREEMENT-- ALL ALLEGEDLY VIOLATIVE OF SECTIONS
7116(A)(1) AND (5) OF THE ACT. /6/
6. BY LETTER DATED JULY 16 FROM NAVY EXCHANGE OFFICER R.T. CLEARY,
ADDRESSED TO RESPONDENT, THE EMPLOYER REQUESTED THAT ITS GRIEVANCE OF
JUNE 21 BE SUBMITTED TO ARBITRATION UNDER THE NEGOTIATED AGREEMENT.
7. RESPONDENT REPLIED TO THIS REQUEST BY LETTER DATED JULY 24 IN
WHICH THE UNION STATED THAT SINCE THE MATTER HAD BEEN REFERRED TO THE
FEDERAL LABOR RELATIONS AUTHORITY, NO ACTION COULD BE TAKEN UNTIL THE
LATTER RENDERED A DECISION.
8. ON OCTOBER 30 ARBITRATOR LLOYD H. BAILER RENDERED AN ARBITRATION
OPINION AND AWARD CONCERNING A PREVIOUS GRIEVANCE FILED BY THIS EMPLOYER
CONCERNING LANGUAGE USED BY RESPONDENT IN ITS NEWSLETTER. IN RESPECT TO
THE GRIEVABILITY ISSUE, THE UNION CONTENDED, AS HERE, THAT THE EMPLOYER
WAS NOT PERMITTED TO FILE A GRIEVANCE UNDER THE NEGOTIATED AGREEMENT.
THE ARBITRATOR HELD THAT NEITHER UNDER EXECUTIVE ORDER 11491, NOR THE
AGREEMENT ITSELF, WAS THE EMPLOYER BARRED FROM FILING A GRIEVANCE. HE
CONCLUDED, HOWEVER, THAT WHILE THE LANGUAGE USED BY THE UNION WAS
UNFOUNDED, NO BASIS EXISTED FOR A REMEDY. /7/
CONCLUSIONS
IN ITS OPPOSITION TO THE AVERMENTS IN THE COMPLAINT RESPONDENT UNION
ASSERTS AS FOLLOWS: (1) NO ISSUE WAS RAISED BY THE CHARGING PARTY IN
ITS CHARGE FILED ON JULY 30, 1979 RE A REQUEST FOR ARBITRATION, AND THUS
THE ALLEGED REFUSAL TO REFER THE EMPLOYER'S GRIEVANCE TO ARBITRATION IS
NOT PROPERLY RAISED HEREIN; (2) THE EMPLOYER HAD NO RIGHT UNDER THE
NEGOTIATED AGREEMENT TO FILE A GRIEVANCE, SINCE ARTICLE XXVII, SECTION
6, THEREOF BESPEAKS ONLY OF EMPLOYEE GRIEVANCES IN OUTLINING THE
PROCEDURAL STEPS TO BE FOLLOWED IN FILING GRIEVANCES; AND, FURTHER,
SINCE THE EMPLOYER ELECTED NOT TO NEGOTIATE PROCEDURES FOR THE FILING OF
GRIEVANCES BY MANAGEMENT, IT HAS CLEARLY WAIVED ITS RIGHT TO GRIEVE;
(3) IT HAS NOT REFUSED TO BARGAIN IN GOOD FAITH SINCE THERE HAS BEEN NO
PRESENTATION OF A MANAGEMENT PROPOSAL NOR A DEMAND TO BARGAIN, BUT
CONTRARIWISE, THE EMPLOYER HAS UNILATERALLY CHANGED CONDITIONS OF
EMPLOYMENT BY INSISTING THAT THE PERSONNEL OFFICER BE PRESENT, AS A
REPRESENTATIVE OF THE SUPERVISOR, AT THE FIRST STEP OF THE GRIEVANCE
PROCEDURE; AND, UNDER ARTICLE VI, SECTION 7, OF THE AGREEMENT, NO RIGHT
TO REPRESENTATION IS ACCORDED SUPERVISORS AT A GRIEVANCE MEETING; (4)
SECTION 7121(A) OF THE ACT HAS NO APPLICABILITY HEREIN SINCE THE
AGREEMENT BETWEEN THE PARTIES WAS NEGOTIATED UNDER EXECUTIVE ORDER
11491, AS AMENDED, AND THE EMPLOYER NEVER INSISTED UPON A CLAUSE
PERMITTING IT TO SUBMIT DISPUTES TO ARBITRATION. IT INSISTS THAT THE
SAVINGS PROVISION IN SECTION 7135(A) PRECLUDES RETROACTIVE APPLICABILITY
OF 7121 AND NO BINDING ARBITRATION CLAUSE INVOLVING THE EMPLOYER EXISTS
HEREIN.
(1) IT IS TRUE THAT THE CHARGE HEREIN DOES NOT SPECIFICALLY STATE
THAT RESPONDENT UNION REFUSED TO REFER MANAGEMENT'S GRIEVANCE TO
ARBITRATION. HOWEVER, IT DOES AVER THAT RESPONDENT REFUSED TO
ACKNOWLEDGE THE GRIEVANCE ITSELF. IN THE PRIVATE SECTOR THE SUPREME
COURT TOOK PAINS TO DECLARE THAT A CHARGE FILED WITH THE NATIONAL LABOR
RELATIONS BOARD IS NOT TO BE MEASURED BY THE SAME STANDARDS APPLICABLE
TO A PLEADING IN A PRIVATE LAWSUIT. MOREOVER, IT REFUSED TO CONFINE THE
BOARD TO FRAMING A COMPLAINT TO THE SPECIFIC MATTERS ALLEGED IN THE
CHARGE. NLRB V. FANT MILLING CO., 360 U.S. 301(1959). THUS, THE CHARGE
MERELY SETS IN MOTION THE MACHINERY OF AN INQUIRY. FURTHER, THE REFUSAL
TO REFER TO ARBITRATION, AS ALLEGED IN THE COMPLAINT, IS REASONABLY
RELATED TO THE AVERMENT IN THE CHARGE. SEE DORAL HOTEL AND COUNTRY
CLUB, 240 NLRB NO. 150. ACCORDINGLY, I REJECT THE RESPONDENT'S
CONTENTION THAT THE ISSUE IS NOT PROPERLY RAISED.
(2) IN RESPECT TO THE CONTENTION BY THE UNION THAT THE EMPLOYER HAS
NO RIGHT TO FILE A GRIEVANCE UNDER THE NEGOTIATED AGREEMENT, I AGREE
WITH THE GENERAL COUNSEL THAT THIS IS A THRESHOLD ISSUE TO BE DECIDED BY
THE ARBITRATOR. APART FROM QUESTIONS RE THE AVAILABILITY OF STATUTORY
APPEAL PROCEDURES FOR GRIEVANCES, ALL DISPUTES OF GRIEVABILITY AND
ARBITRABILITY ARE TO BE REFERRED TO ARBITRATION AS A THRESHOLD ISSUE
UNDER ARTICLE XXVII, SECTION 3 OF THE AGREEMENT. THUS THIS DEFENSE HAS
NO APPLICABILITY HEREIN AND IS NOT PROPERLY RAISED BEFORE THE
UNDERSIGNED. /8/
(3) IT HAS BEEN ESTABLISHED IN THE PUBLIC SECTOR THAT A UNILATERAL
REFUSAL, WITHOUT MORE, TO PROCEED TO ARBITRATION OF A GRIEVANCE
CONSTITUTES AN UNFAIR LABOR PRACTICE. WHERE SUCH REFUSAL WAS NOT
GROUNDED IN GOOD FAITH, IT WAS HELD TO BE VIOLATIVE OF SECTION 19(A)(1)
AND (6) OF THE ORDER. /9/ DEPARTMENT OF THE ARMY AND AIR FORCE,
DEPARTMENT OF DEFENSE, DIVISION OF MILITARY AFFAIRS, STATE OF NEW YORK,
1 FLRA NO. 73; INTERNAL REVENUE SERVICE AUSTIN DISTRICT, AUSTIN, TEXAS,
2 FLRA NO. 71; ARMY AND AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE
CONSOLIDATED EXCHANGE, FORT DIX, NJ, A/SLMR NO. 700.
IN THE INSTANT CASE RESPONDENT UNION UNILATERALLY REFUSED TO REFER
THE EMPLOYER'S GRIEVANCE TO ARBITRATION BASED ON ITS CONCLUSION THAT
MANAGEMENT COULD NOT GRIEVE UNDER THE NEGOTIATED AGREEMENT. FURTHER, IT
FILED AN UNFAIR LABOR PRACTICE CHARGE WHICH WAS THEREAFTER DISMISSED.
IT DOES NOT LIE, HOWEVER, WITH EITHER PARTY TO A CONTRACT TO MAKE THE
DETERMINATION RE QUESTIONS OF ARBITRABILITY. APART FROM THE FACT THAT
ARTICLE XXVII, SECTION 2 OF THE AGREEMENT DEFINES A GRIEVANCE AS ANY
DISPUTE BETWEEN THE EMPLOYER AND THE UNION OR AN EMPLOYEE, AN ARBITRATOR
CONCLUDED, IN A PRIOR DISPUTE BETWEEN THE SAME PARTIES HEREIN, THAT THIS
EMPLOYER COULD FILE A GRIEVANCE THEREUNDER. IN THE FACE OF THIS
DETERMINATION, AS WELL AS THE LANGUAGE EMPLOYED IN THE AGREEMENT,
RESPONDENT CAN SCARCELY RELY ON GOOD FAITH IN ITS REFUSAL TO ARBITRATE
THE DISPUTE HEREIN.
NOTE IS TAKEN THAT IN RESPONSE TO THE EMPLOYER'S REQUEST FOR
ARBITRATION RESPONDENT STATED IT COULD NOT COMPLY THEREWITH SINCE THE
MATTER WAS REFERRED TO THE FEDERAL LABOR RELATIONS AUTHORITY. THE UNION
WAS APPARENTLY REFERRED TO THE UNFAIR LABOR PRACTICE CHARGES WHICH IT
HAD FILED AGAINST THE EMPLOYER. BUT NOT ONLY WERE THESE DISMISSED, BUT
THEY INVOLVED COLLATERAL ISSUES NOT NECESSARILY DETERMINATIVE OF
RESPONDENT'S OBLIGATIONS IN RESPECT TO ARBITRATING THE DISPUTE BETWEEN
THE PARTIES. FURTHER, THE AUTHORITY HAS CONCLUDED THAT HOLDING A
CONTRACTUAL GRIEVANCE IN ABEYANCE PENDING THE PROCESSING OF RELATED EEO
MATTERS IN A U.S. DISTRICT COURT CONSTITUTES A VIOLATION OF 19(A)(1)
AND (6) OF THE ORDER. IRS, SUPRA. LIKEWISE, AN EMPLOYER'S REFUSAL TO
PROCEED TO ARBITRATION PENDING A DISTRICT COURT'S DECISION RE A UNION'S
PETITION TO COMPEL ARBITRATION WAS NOT DEEMED GOOD FAITH, AND THE
AUTHORITY HELD SUCH REFUSAL TO BE VIOLATIVE OF THE ORDER. DEPT. OF THE
ARMY AND AIR FORCE, SUPRA.
THUS I CONCLUDE THAT RESPONDENT'S UNILATERAL REFUSAL TO PROCEED TO
ARBITRATION ON JULY 24, 1979 WAS VIOLATIVE OF SECTION 7116(B)(5) OF THE
ACT.
(4) THE GENERAL COUNSEL MAINTAINS THAT RESPONDENT ALSO VIOLATED
SECTION 7116(B)(8) OF THE ACT SINCE IT FAILED TO COMPLY WITH SECTION
7121(A) THEREOF. THE LATTER SECTION PROVIDES AS FOLLOWS:
"SECTION 7121
(A)(1) EXCEPT AS PROVIDED IN PARAGRAPH (2) OF THIS SUBSECTION, ANY
COLLECTIVE BARGAINING
AGREEMENT SHALL PROVIDE PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES,
INCLUDING QUESTIONS OF
ARBITRABILITY. EXCEPT AS PROVIDED IN SUBSECTION (D) AND (E) OF THIS
SECTION, THE PROCEDURES
SHALL BE THE EXCLUSIVE PROCEDURES FOR RESOLVING GRIEVANCES WHICH FALL
WITHIN ITS COVERAGE.
(2) ANY COLLECTIVE BARGAINING AGREEMENT MAY EXCLUDE ANY MATTER FROM
THE APPLICATION OF THE
GRIEVANCE PROCEDURES WHICH ARE PROVIDED FOR IN THE AGREEMENT."
RESPONDENT ARGUES THAT A SAVINGS CLAUSE IS CONTAINED IN SECTION
7135(A) OF THE ACT PROVIDING FOR AN EXTENSION OF PROCEDURES UNDER
EXECUTIVE ORDER 11491, AS AMENDED. IT CONTENDS THAT SINCE THERE WAS NO
PROCEDURE FOR ARBITRATION OF A GRIEVANCE BY MANAGEMENT, THERE CAN BE NO
RETROACTIVE APPLICATION OF A GRIEVANCE SETTLEMENT PROCEDURE.
UNDER SECTION 13 OF THE ORDER IT WAS NOT MANDATORY TO INCLUDE BINDING
ARBITRATION AS PART OF A NEGOTIATED GRIEVANCE PROCEDURE. HOWEVER,
SECTION 7121 OF THE ACT MANDATES THAT NEGOTIATED GRIEVANCE PROCEDURES
SHALL PROVIDE FOR BINDING ARBITRATION OF ANY GRIEVANCE NOT SETTLED UNDER
THOSE PROCEDURES. IN ITS INTERPRETATION AND GUIDANCE REPORT (CASE NO.
0-PS-2), ISSUED ON DECEMBER 19, 1979, THE AUTHORITY DISCUSSED THE
IMPACT, IF ANY, OF SECTION 7135(A)(1) ON REQUIREMENT UNDER THE ORDER.
THE AUTHORITY RECOGNIZED THAT WHERE THE PARTIES ENTERED INTO AN
AGREEMENT BEFORE THE EFFECTIVE DATE OF THE STATUTE WITH NO PROVISION FOR
BINDING ARBITRATION AS PART OF THE GRIEVANCE PROCEDURE, THEY MIGHT AGREE
TO CONTINUE THE TERMS THEREOF UNDER SECTION 7135(A)(1) OF THE STATUTE.
IT CONCLUDED THAT SECTION 13 OF THE ORDER, HOWEVER, HAS BEEN SUPERSEDED
BY SECTION 7121 OF THE STATUTE; THAT PROVISIONS IN AGREEMENTS
CONFERRING JURISDICTION UPON THE ASSISTANT SECRETARY TO RESOLVE
ARBITRABILITY QUESTIONS ARE RENDERED VOID BY THE STATUTE; AND THAT,
UNLESS OTHERWISE AGREED, PROCEDURES IN AGREEMENTS FOR SETTLING
GRIEVANCES MUST BE READ AS PROVIDING THAT QUESTIONS OF ARBITRABILITY
SHALL BE SUBMITTED TO ARBITRATION.
THE NEGOTIATED AGREEMENT HEREIN DOES, IN FACT, PROVIDE THAT DISPUTES
OF GRIEVABILITY OR ARBITRABILITY SHALL BE REFERRED TO ARBITRATION.
UNDER THE AUTHORITY'S INTERPRETATION OF THE APPLICABLE STATUTORY
PROVISION, THIS BINDING ARBITRATION PROVISION MUST BE UTILIZED.
RESPONDENT MAY NOT INSIST INSTEAD UPON HAVING QUESTIONS OF THIS NATURE
RESOLVED BY THE ASSISTANT SECRETARY. FURTHER, SECTION 7135(A) DOES NOT
AFFORD RELIEF TO THE UNION SINCE THE STATUTE REQUIRES THAT, UNLESS
OTHERWISE AGREED UPON, ALL GRIEVANCE PROCEDURES MUST BE READ AS
PROVIDING FOR THE SUBMISSION TO ARBITRATION OF ALL ISSUES OF
ARBITRABILITY. ACCORDINGLY, AND SINCE THE ISSUE RAISED BY RESPONDENT
MUST, IN THE FINAL ANALYSIS BE DETERMINED BY THE ARBITRATOR AFTER
SUBMISSION, I CONCLUDE THE UNION HAS FAILED TO COMPLY WITH SECTION 7121
OF THE ACT. BY REASON OF ITS FAILURE, RESPONDENT HAS VIOLATED SECTIONS
7116(B)(8) THEREOF.
HAVING FOUND THAT RESPONDENT VIOLATED SECTIONS 7116(B)(5) AND (8) OF
THE ACT BY REASON OF ITS REFUSAL TO PROCEED TO ARBITRATION OF THE
GRIEVANCE FILED BY THE EMPLOYER HEREIN ON JUNE 21, 1979, I RECOMMEND
THAT AUTHORITY ISSUE THE FOLLOWING ORDER:
ORDER
PURSUANT TO SECTION 7118(A)(7) OF THE FEDERAL LABOR-MANAGEMENT
RELATIONS STATUTE AND SECTION 2423.29 OF THE RULES AND REGULATIONS, IT
IS HEREBY ORDERED THAT THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
INTERDEPARTMENTAL LOCAL 3723, AFL-CIO, SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY REFUSING TO PROCEED TO ARBITRATION REGARDING A
GRIEVANCE FILED BY THE DEPARTMENT OF THE NAVY, NAVY EXCHANGE, NAVAL
STATION, SAN DIEGO, CALIFORNIA ON JUNE 21, 1979, ALLEGING A VIOLATION OF
ARTICLE XXVII, SECTION 4 OF THE NOVEMBER 30, 1978 NEGOTIATED AGREEMENT
WITH SAID EMPLOYER AFTER RECEIVING TIMELY NOTICE OF THE EMPLOYER'S
DESIRE TO INVOKE ARBITRATION.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE ACT:
(A) UPON REQUEST, PROCEED TO ARBITRATION REGARDING A GRIEVANCE FILED
BY THE DEPARTMENT OF THE NAVY, NAVY EXCHANGE, NAVAL STATION, SAN DIEGO,
CALIFORNIA, ALLEGING A VIOLATION OF ARTICLE XXVII, SECTION 4 OF THE
NOVEMBER 30, 1978 NEGOTIATED AGREEMENT WITH SAID EMPLOYER.
(B) POST AT THE BULLETIN BOARDS PROVIDED FOR THE POSTING OF UNION
MATERIAL BY THE DEPARTMENT OF NAVY, NAVY EXCHANGE, NAVAL STATION, SAN
DIEGO, CALIFORNIA, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON
FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON
RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE PRESIDENT OF AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, INTERDEPARTMENTAL LOCAL 3723,
AFL-CIO, AND THEY WITH THE CONSENT AND APPROVAL OF DEPARTMENT OF NAVY,
NAVY EXCHANGE, NAVAL STATION, SAN DIEGO, CALIFORNIA, SHALL BE POSTED FOR
60 CONSECUTIVE DAYS THEREAFTER. REASONABLE STEPS SHALL BE TAKEN TO
ENSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED OR COVERED BY ANY
OTHER MATERIAL.
(C) NOTIFY THE REGIONAL DIRECTOR OF REGION 8, 350 SOUTH FIGUEROA
STREET, LOS ANGELES, CALIFORNIA IN WRITING WITHIN 30 DAYS FROM THE DATE
OF THIS ORDER WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: AUGUST 20, 1980
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF THE FEDERAL LABOR-MANAGEMENT
RELATIONS STATUTE LABOR-MANAGEMENT RELATIONS IN THE
FEDERAL SECTOR
WE HEREBY NOTIFY OUR MEMBERS THAT:
WE WILL NOT UNILATERALLY REFUSE TO PROCEED TO ARBITRATION REGARDING A
GRIEVANCE FILED BY THE DEPARTMENT OF THE NAVY, NAVY EXCHANGE, NAVAL
STATION, SAN DIEGO, CALIFORNIA, ON JUNE 21, 1979, ALLEGING A VIOLATION
OF ARTICLE XXVII, SECTION 4 OF THE NOVEMBER 30, 1978 NEGOTIATED
AGREEMENT WITH SAID EMPLOYER AFTER RECEIVING TIMELY NOTICE OF ITS DESIRE
TO INVOKE ARBITRATION.
WE WILL, UPON REQUEST, PROCEED TO ARBITRATION REGARDING THE GRIEVANCE
FILED ON JUNE 21, 1979 BY THE DEPARTMENT OF THE NAVY, NAVY EXCHANGE,
NAVAL STATION, SAN DIEGO, CALIFORNIA ALLEGING A VIOLATION OF ARTICLE
XXVII, SECTION 4 OF THE NOVEMBER 30, 1978 NEGOTIATED AGREEMENT WITH SAID
EMPLOYER.
UNION OR LABOR ORGANIZATION
DATED: BY:
THIS NOTICE MUST REMAIN POSTED FOR SIXTY (60) CONSECUTIVE DAYS FROM
THE DATE OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: 350
SOUTH FIGUEROA STREET, 10TH FLOOR, WORLD TRADE CENTER, LOS ANGELES, CA
90071 AND WHOSE TELEPHONE NUMBER IS: (213) 688-3805.
/1/ SECTION 7116(B)(5) OF THE STATUTE READS AS FOLLOWS:
SEC. 7116. UNFAIR LABOR PRACTICES
(B) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR A LABOR
ORGANIZATION--
(5) TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH AN AGENCY AS
REQUIRED BY THIS
CHAPTER(.)
/2/ SECTION 7116(B)(8) OF THE STATUTE STATES THAT IT SHALL BE AN
UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION "TO OTHERWISE FAIL OR
REFUSE TO COMPLY WITH ANY PROVISION OF THIS CHAPTER."
/3/ SECTION 7121 PROVIDES, IN PERTINENT PART, AS FOLLOWS:
(A)(1) EXCEPT AS PROVIDED IN PARAGRAPH (2) OF THIS SUBSECTION ANY
COLLECTIVE BARGAINING
AGREEMENT SHALL PROVIDE PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES,
INCLUDING QUESTIONS OF
ARBITRABILITY . . .
(B) ANY NEGOTIATED GRIEVANCE PROCEDURE REFERRED TO IN SUBSECTION (A)
OF THIS SECTION
SHALL--
(3) INCLUDE PROCEDURES THAT--
(C) PROVIDE THAT ANY GRIEVANCE NOT SATISFACTORILY SETTLED UNDER THE
NEGOTIATED GRIEVANCE
PROCEDURE SHALL BE SUBJECT TO BINDING ARBITRATION WHICH MAY BE
INVOKED BY EITHER THE EXCLUSIVE
REPRESENTATIVE OR THE AGENCY.
/4/ IN THIS REGARD, IT IS NOTED THAT, ACCORDING TO THE JUDGE, THE
PARTIES' COLLECTIVE BARGAINING AGREEMENT PROVIDED THAT "GRIEVANCE(S),
UPON WRITTEN REQUEST BY THE EMPLOYER OF THE UNION . . . MAY BE SUBMITTED
TO ARBITRATION."
/5/ ALL DATED HEREINAFTER MENTIONED OCCUR IN 1979 UNLESS OTHERWISE
SPECIFIED.
/6/ RESPONDENT ALSO FILED A CHARGE (8-CA-140) AGAINST THE NAVY
EXCHANGE ALLEGING IT INTERFERED AND PREVENTED THE PRESENTATION AND
PROSECUTION OF THE GRIEVANCE IN VIOLATION OF ARTICLE XXVII, SECTION 6
AND ARTICLE VI, SECTION 7 OF THE AGREEMENT. BOTH CHARGES WERE DISMISSED
AND THE DISMISSALS SUSTAINED ON THE GROUND THAT THE PRESENCE OF THE
PERSONNEL OFFICER WITH THE IMMEDIATE SUPERVISOR WAS NOT A CLEAR OR
PATENT BREACH OF THE AGREEMENT, BUT INVOLVED A MATTER OF CONTRACT
INTERPRETATION.
/7/ THIS OPINION AND AWARD IS PRESENTLY BEFORE THE AUTHORITY ON
APPEAL.
/8/ NOTE IS TAKEN THAT ARBITRATOR BAILER HAS HELD THAT THIS EMPLOYER
IS NOT PRECLUDED, UNDER THE AGREEMENT, FROM FILING A GRIEVANCE AGAINST
THE UNION HEREIN.
/9/ CF. DEPT. OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, DISABILITY INSURANCE PROGRAM STAFF, CHICAGO, ILLINOIS,
A/SLMR NO. 1128 WHERE RESPONDENT REFUSED TO PROCESS A GRIEVANCE PENDING
AN EEO PROCEEDING, BUT AGREED TO PROCESS IT AFTER THE EEO MATTER WAS
RESOLVED. IN THIS INSTANCE NO VIOLATION WAS FOUND.
8 FLRA 11; FLRA 9-CA-44, 9-CA-95; FEBRUARY 4, 1982.
STATE OF CALIFORNIA NATIONAL GUARD
RESPONDENT
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCALS R12-125, R12-132,
R12-146, R12-150 AND R12-105
CHARGING PARTY
CASE NO(S). 9-CA-44, 9-CA-95
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION AND ORDER IN THE
ABOVE-ENTITLED PROCEEDING FINDING THAT RESPONDENT HAD ENGAGED IN THE
UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINTS, AND RECOMMENDING THAT
IT BE ORDERED TO CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE
ACTION. THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S
DECISION AND ORDER AND A BRIEF IN SUPPORT THEREOF, AND THE GENERAL
COUNSEL FILED AN OPPOSITION THERETO.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. /1/ UPON CONSIDERATION OF
THE JUDGE'S DECISION AND ORDER, AND THE ENTIRE RECORD IN THE SUBJECT
CASES, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S RECOMMENDATIONS AS
MODIFIED HEREIN. BASED ON THE AUTHORITY'S DECISION IN STATE OF NEVADA
NATIONAL GUARD, 7 FLRA NO. 37(1981), AND THE RATIONALE THEREIN, THE
AUTHORITY AGREES WITH THE JUDGE THAT THE RESPONDENT VIOLATED SECTION
7116(A)(1) AND (6) OF THE STATUTE. IN VIEW OF THAT FINDING, THE
AUTHORITY FINDS IT UNNECESSARY TO PASS UPON WHETHER THE RESPONDENT'S
CONDUCT ALSO VIOLATED SECTION 7116(A)(5) OR (8).
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS
HEREBY ORDERED THAT THE STATE OF CALIFORNIA NATIONAL GUARD SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO COMPLY AND COOPERATE WITH DECISIONS AND
ORDERS OF THE FEDERAL SERVICE IMPASSES PANEL ISSUED OCTOBER 13, 1978,
AND APRIL 13, 1979.
(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, AND THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO CARRY OUT THE
PURPOSES AND POLICIES IN EXECUTIVE ORDER 11491, AS AMENDED, AND THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE:
(A) COMPLY AND COOPERATE FORTHWITH WITH DECISIONS AND ORDERS OF THE
FEDERAL SERVICE IMPASSES PANEL ISSUED OCTOBER 13, 1978, AND APRIL 13,
1979.
(B) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE ON FORMS TO
BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL
BE SIGNED BY THE COMMANDING GENERAL, CALIFORNIA NATIONAL GUARD, 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 GENERAL SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION 9, FEDERAL LABOR
RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT FAIL AND REFUSE TO COMPLY WITH DECISIONS AND ORDERS OF
THE FEDERAL SERVICE IMPASSES PANEL ISSUED OCTOBER 13, 1978, AND APRIL
13, 1979.
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, AND THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL COMPLY AND COOPERATE FORTHWITH WITH DECISIONS AND ORDERS OF
THE FEDERAL SERVICE IMPASSES PANEL ISSUED OCTOBER 13, 1978, AND APRIL
13, 1979, AND WILL OTHERWISE COOPERATE IN IMPASSES PROCEDURES AND
DECISIONS AS REQUIRED BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE.
(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 DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: 540 BUSH STREET, SUITE 500, SAN FRANCISCO, CALIFORNIA
94102, AND WHOSE TELEPHONE NUMBER IS (415)556-8105.
THOMAS ANGELO, ESQUIRE
REGIONAL ATTORNEY
JOSANNA BERKOW, ESQUIRE
OFFICE OF THE GENERAL COUNSEL
FEDERAL LABOR RELATIONS AUTHORITY
REGION 9,
450 GOLDEN GATE AVENUE
ROOM 11409, P.O.BOX 36016
SAN FRANCISCO, CALIFORNIA 94102
FOR THE GENERAL COUNSEL
STEPHAN J. EGAN, ESQUIRE
DEPUTY ATTORNEY GENERAL
STATE OF CALIFORNIA
DEPARTMENT OF JUSTICE
555 CAPITOL MALL, SUITE 350
SACRAMENTO, CALIFORNIA 95814
FOR THE RESPONDENT
BEFORE: GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THESE CASES AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C 7101 ET. SEQ., AS A RESULT OF
A CONSOLIDATED UNFAIR LABOR PRACTICE COMPLAINT DATED OCTOBER 31, 1979
FILED BY THE REGIONAL DIRECTOR, REGION 9, FEDERAL LABOR RELATIONS
AUTHORITY, SAN FRANCISCO, CALIFORNIA AGAINST THE STATE OF CALIFORNIA
NATIONAL GUARD (RESPONDENT).
THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED
SECTIONS 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED, AND 5
U.S.C. 7116(1)(1), (5), (6), AND (8) IN THAT SINCE ON OR ABOUT NOVEMBER
12, 1978 RESPONDENT HAS FAILED AND REFUSED TO ADOPT CONTRACT LANGUAGE
AND TAKE OTHER AFFIRMATIVE ACTION DIRECTED BY FINAL DECISIONS AND ORDERS
OF THE FEDERAL SERVICES IMPASSES PANEL AND HAS FAILED AND REFUSED TO
MEET AND NEGOTIATE IN GOOD FAITH WITH THE CHARGING PARTY OR UNION TO
DISCUSS MATTERS PERTAINING TO THE IMPLEMENTATION OF THESE FINAL
DECISIONS AND ORDERS.
RESPONDENT'S ANSWER DENIED THESE ALLEGATIONS AND SET UP AFFIRMATIVE
DEFENSES.
A HEARING WAS SET IN THIS MATTER FOR JANUARY 8, 1980. HOWEVER, UPON
A REPRESENTATION BY COUNSEL FOR THE GENERAL COUNSEL DURING A CONFERENCE
CALL THAT A MOTION FOR SUMMARY JUDGMENT WOULD BE FILED, THE CHIEF JUDGE
POSTPONED THE HEARING, AND THE UNDERSIGNED SUBSEQUENTLY ISSUED THE
FOLLOWING ORDER:
THE FOLLOWING BRIEFING SCHEDULE IS ESTABLISHED IN ORDER TO RULE UPON
THE MOTION OR
OTHERWISE ASCERTAIN WHAT MATERIAL FACTS EXIST WITHOUT SUBSTANTIAL
CONTROVERSY AND WHAT
MATERIAL FACTS ARE ACTUALLY AND IN GOOD FAITH CONTROVERTED:
1. THE GENERAL COUNSEL'S MOTION FOR SUMMARY JUDGMENT SHALL BE SERVED
ON RESPONDENT ON OR
BEFORE JANUARY 10, 1980. THE BASIC MOTION SHALL INCLUDE A SEPARATELY
NUMBERED AND
NON-ARGUMENTATIVE STATEMENT OF ALL ALLEGED UNCONTESTED MATERIAL FACTS
WHICH PROVIDE THE BASIS
FOR THE MOTION, REFERENCED TO THE PARTS OF THE RECORD RELIED UPON OR
TO SUPPORTING EXHIBITS
AND AFFIDAVITS.
2. RESPONDENT SHALL SERVE ON OR BEFORE JANUARY 28, 1980 A CONCISE
STATEMENT OF GENUINE
ISSUES WHICH SHALL INCLUDE A STATEMENT OF DISPUTED FACTS,
CORRESPONDINGLY NUMBERED TO THE
GENERAL COUNSEL'S, AS TO WHICH IT IS CONTENDED THERE EXISTS A GENUINE
ISSUE NECESSARY TO BE
LITIGATED AS WELL AS A STATEMENT OF ANY ADDITIONAL CONTESTED OR
UNCONTESTED MATERIAL FACTS,
WITH BOTH STATEMENTS REFERENCED TO THE PARTS OF THE RECORD OR
SUPPORTING EXHIBITS AND
AFFIDAVITS RELIED UPON. RESPONDENT MAY, IF IT DESIRES, CROSS MOVE
FOR SUMMARY JUDGMENT AT
THIS TIME.
3. THE PARTIES SHALL SERVE ANY ADDITIONAL REPLY STATEMENTS WITH
REGARD TO THE FACTS AND
ISSUES TOGETHER WITH MEMORANDA OF LAW IN SUPPORT OF OR OPPOSITION TO
THE MOTION(S) ON OR
BEFORE FEBRUARY 13, 1980.
4. IN DETERMINING THE MOTION(S) FOR SUMMARY JUDGMENT AND/OR WHAT
FURTHER PROCEEDINGS, IF
ANY, ARE NECESSARY, FACTS AS CLAIMED BY A PARTY IN THE PARTY'S
STATEMENT OF MATERIAL FACTS
WILL BE DEEMED ADMITTED TO EXIST EXCEPT AS AND TO THE EXTENT SUCH
FACTS ARE CONTROVERTED AS
PRESCRIBED HEREIN. AS INDICATED ABOVE, STATEMENTS OF MATERIAL FACTS
MUST BE SEPARATELY
NUMBERED AND STATED IN AN OBJECTIVE, AND NON-ARGUMENTATIVE FASHION.
THE GENERAL COUNSEL FILED A MOTION FOR SUMMARY JUDGMENT, STATEMENT OF
MATERIAL FACTS, AND MEMORANDUM OF LAW IN ACCORDANCE WITH THE ORDER. THE
RESPONDENT FILED A RESPONSE TO THE MOTION WHICH MERELY REQUESTED THAT
THE MOTION BE DENIED AND THAT A HEARING BE HELD PURSUANT TO 5 U.S.C.
7118(A)(6). RESPONDENT FAILED TO RAISE A SINGLE AREA OF FACTUAL
DISPUTE. RESPONDENT DID NOT FILE A MEMORANDUM OF LAW IN OPPOSITION TO
THE MOTION OR IN SUPPORT OF ITS AFFIRMATIVE DEFENSE.
IT HAS LONG BEEN ESTABLISHED THAT THE PURPOSE OF SUMMARY JUDGMENT IS
TO AVOID USELESS, EXPENSIVE, AND TIME-CONSUMING TRIALS WHERE THERE ARE
NO GENUINE ISSUES OF MATERIAL FACT TO BE TRIED. /2/ FEDERAL LABOR
RELATIONS AUTHORITY REGULATIONS, 5 C.F.R. 2423.19(K)(1980),
SPECIFICALLY AUTHORIZE THE USE OF MOTIONS FOR SUMMARY JUDGMENT IN THE
LITIGATION OF UNFAIR LABOR PRACTICE CHARGES UNDER THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE. SUCH PRACTICE IS CONSISTENT WITH
THE ADMINISTRATIVE PROCEDURE ACT /3/ AND WELL-ESTABLISHED PRINCIPLES OF
DUE PROCESS AND ADMINISTRATIVE LAW. /4/
UPON EXAMINATION OF THE GENERAL COUNSEL'S MOTION FOR SUMMARY JUDGMENT
AND THE RESPONDENT'S REPLY, IT APPEARS THAT THERE ARE NO GENUINE ISSUES
OF MATERIAL FACT AND THAT ONLY LEGAL ISSUES ARE INVOLVED. IN SUCH
CIRCUMSTANCES, THE REQUIRED HEARING UNDER THE STATUTE MAY CONSIST WHOLLY
OF AN OPPORTUNITY TO PRESENT WRITTEN ARGUMENT. /5/ THE PARTIES HAVE
BEEN AFFORDED THAT OPPORTUNITY.
UPON CONSIDERATION OF THE GENERAL COUNSEL'S MOTION FOR SUMMARY
JUDGMENT, RESPONDENT'S REPLY THERETO, AND ALL THE PLEADINGS AND
EXHIBITS, IT APPEARS THAT THERE IS NO GENUINE ISSUE OF MATERIAL FACT AND
THAT THE GENERAL COUNSEL IS ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF
LAW. ACCORDINGLY, THE GENERAL COUNSEL'S MOTION IS GRANTED, AND I MAKE
THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
FOR CONVENIENCE, THE FINDINGS OF FACT ARE IN ESSENTIALLY THE SAME FORM
AS PROPOSED BY THE GENERAL COUNSEL AND UNDISPUTED BY RESPONDENT.
FINDINGS OF FACT
1. THE RESPONDENT NATIONAL GUARD IS AN AGENCY WITHIN THE MEANING OF 5
U.S.C 7103(A)(3).
2. THE CHARGING PARTIES, NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES LOCAL R12-125, R12-132, R12-146, R12-150 AND R12-105,
HEREINAFTER UNIONS, ARE LABOR ORGANIZATIONS WITHIN THE MEANING OF 5
U.S.C. 7103(A)(4).
3. AT ALL TIMES MATERIAL HEREIN, THE UNIONS HAVE BEEN RECOGNIZED BY
RESPONDENT AS EXCLUSIVE REPRESENTATIVES FOR APPROPRIATE UNITS OF
CIVILIAN NATIONAL GUARD EMPLOYEES.
4. THE CHARGE WAS FILED BY THE UNION, LOCALS R12-125, R12-132,
R12-146, AND R12-150, IN FEDERAL LABOR RELATIONS AUTHORITY CASE NO.
9-CA-44 ON OR ABOUT MAY 7, 1979, AND SERVED UPON RESPONDENT BY THE UNION
ON OR ABOUT MAY 4, 1979. (EXHIBIT 1(A)).
THE CHARGE WAS FILED BY THE UNION, LOCAL R12-105 IN FEDERAL LABOR
RELATIONS AUTHORITY CASE NO. 9-CA-95 ON OR ABOUT JUNE 22, 1979, AND
SERVED UPON RESPONDENT BY THE UNION ON OR ABOUT JUNE 30, 1979. (EXHIBIT
1(B)).
THE FIRST AMENDED CHARGE WAS FILED BY THE UNION IN FEDERAL LABOR
RELATIONS AUTHORITY CASE NO. 9-CA-44 ON OR ABOUT OCTOBER 5, 1979, AND
SERVED UPON RESPONDENT BY BY THE UNION ON OR ABOUT OCTOBER 3, 1979.
(EXHIBIT 1(C)).
THE FIRST AMENDED CHARGE WAS FILED BY THE UNION IN FEDERAL LABOR
RELATIONS AUTHORITY CASE NO. 9-CA-95 ON OR ABOUT OCTOBER 5, 1979, AND
SERVED UPON RESPONDENT BY THE UNION ON OR ABOUT OCTOBER 3, 1979.
(EXHIBIT 1(D)).
5. THE RESPONDENT FILED A RESPONSE DATED MAY 21, 1979, TO THE CHARGE
IN 9-CA-44 ON MAY 23, 1979 (EXHIBIT 1(E) TOGETHER WITH ATTACHMENTS
(EXHIBITS 2-10).
6. THE RESPONDENT FILED A RESPONSE DATED JULY 25, 1979, TO THE
CHARGE IN 9-CA-95 ON JULY 30, 1979 (EXHIBIT 1(F)) TOGETHER WITH
ATTACHMENTS (EXHIBITS 2-10).
7. ON OCTOBER 31, 1979 AN ORDER CONSOLIDATING CASES, COMPLAINT AND
NOTICE OF HEARING WAS ISSUED IN CASE NOS. 9-CA-44 AND 9-CA-95 (EXHIBIT
1(G).
8. RESPONDENT'S ANSWER TO THE COMPLAINT WAS FILED WITH THE REGIONAL
DIRECTOR ON NOVEMBER 19, 1979. (EXHIBIT 1(H)). AN ORDER EXTENDING TIME
FOR ANSWER WAS ENTERED ON NOVEMBER 16, 1979. (EXHIBIT 1(I)).
9. IN 1977 AND 1978, AFTER EXTENSIVE NEGOTIATIONS AND THE ASSISTANCE
OF THE FEDERAL MEDIATION AND CONCILIATION SERVICE, THE UNION FILED
REQUESTS FOR ASSISTANCE WITH THE FEDERAL SERVICE IMPASSES PANEL,
HEREINAFTER, FSIP OR PANEL, TO CONSIDER A NEGOTIATION IMPASSE WHICH THE
PARTIES HAD FAILED TO RESOLVE BY VOLUNTARY ARRANGEMENTS, CONCERNING THE
ISSUE OF MILITARY ATTIRE FOR CIVILIAN EMPLOYEES. (EXHIBITS 2A-2E).
10. UPON RECEIPT OF THE UNIONS' REQUEST, THE FSIP, IN ACCORDANCE
WITH APPLICABLE LAW AND REGULATION, CONDUCTED AN INFORMATION INQUIRY.
THEREAFTER, ON JUNE 30, 1978 THE FSIP ISSUED ORDERS OF SHOW CAUSE UPON
RESPONDENT. (EXHIBITS 3A-3E).
11. ON JULY 18, 1978, THE NATIONAL GUARD FILED ITS COLLECTIVE
RESPONSE TO THE ORDERS TO SHOW CAUSE IN CASE NOS. 77 FSIP 70, 78 FSIP
42, 77 FSIP 77, 78 FSIP 44 AND 78 FSIP 49, SETTING FORTH BOTH ITS
ARGUMENTS AND EVIDENCE IN SUPPORT OF ITS POSITION IN OPPOSITION TO THE
ORDER TO SHOW CAUSE. THE RESPONDENT ALSO INFORMED THE PANEL AT THIS
TIME THAT A DECERTIFICATION PETITION HAS BEEN FILED WITH THE DEPARTMENT
OF LABOR FOR UNION LOCAL R12-105. (EXHIBIT 4).
12. ON OCTOBER 13, 1978, THE FSIP ISSUED ITS DECISIONS AND ORDERS IN
CASE NOS. 77 FSIP 77, 78 FSIP 42, 78 FSIP 44 AND 78 FSIP 49 AND ON APRIL
13, 1979 IN CASE NO. 77 FSIP 70, ORDERING THAT:
1. THE PARTIES ADOPT THE FOLLOWING LANGUAGE IN THEIR AGREEMENT:
EMPLOYEES, WHILE PERFORMING THEIR DAY-TO-DAY TECHNICIAN DUTIES, SHALL
HAVE THE OPTION OF
WEARING EITHER (A) THE MILITARY UNIFORM OR (B) AN AGREED-UPON
STANDARD CIVILIAN ATTIRE WITHOUT
DISPLAY OF MILITARY RANK, SUCH CLOTHING TO BE PURCHASED BY EMPLOYEES
WHO CHOOSE TO WEAR IT.
2. CIRCUMSTANCES AND OCCASIONS FOR WHICH THE WEARING OF THE MILITARY
UNIFORM MAY BE
REQUIRED SHALL BE AGREED UPON BY THE PARTIES AND INCORPORATED IN
THEIR AGREEMENT.
THE FSIP FURTHER DIRECTED THE PARTIES TO SEND EVIDENCE OF COMPLIANCE
WITH ITS ORDERS WITHIN 30 DAYS OF RECEIPT THEREOF. (EXHIBITS 5 AND 6).
13. ON NOVEMBER 17, 1978, THE NATIONAL GUARD FILED A MOTION FOR
RECONSIDERATION OF THE DECISION AND ORDER OF OCTOBER 13, 1978 IN CASE
NOS. 77 FSIP 77, 78 FSIP 42, 78 FSIP 44, 78 FSIP 49 WITH FSIP. (EXHIBIT
7).
14. ON JANUARY 18, 1979, FSIP DENIED RESPONDENT'S MOTION FOR
RECONSIDERATION OF ITS OCTOBER 13, 1978 DECISION AND ORDER. (EXHIBIT
8).
15. ON MARCH 12, 1979, THE NATIONAL GUARD FILED A REQUEST FOR
CONSIDERATION WITH THE FEDERAL LABOR RELATIONS AUTHORITY HEREINAFTER,
FLRA, OF CASE NOS. 77 FSIP 77, 78 FSIP 42, 78 FSIP 44, AND 78 FSIP 49.
ON MAY 2, 1979 RESPONDENT WROTE FLRA REQUESTING THAT 77 FSIP 70 BE ADDED
TO THE ABOVE CONSOLIDATED CASES SUBMITTED PER THE REQUEST FOR
CONSIDERATION. (EXHIBIT 9 AND 10).
16. ON DECEMBER 5, 1979, FLRA DENIED RESPONDENT'S REQUEST FOR
CONSIDERATION OF 77 FSIP 77, 78 FSIP 42, 78 FSIP 44 AND 78 FSIP 49. ON
DECEMBER 5, 1979 FLRA DENIED RESPONDENT'S REQUEST FOR CONSIDERATION OF
77 FSIP 70. (EXHIBITS 11 AND 12).
17. RESPONDENT HAS FAILED AND REFUSED TO ADOPT THE CONTRACT LANGUAGE
SET OUT IN PARAGRAPH 12, ABOVE, INTO ITS COLLECTIVE BARGAINING AGREEMENT
WITH THE UNION AS DIRECTED BY FSIP AS ITS FINAL RESOLUTION OF THE
IMPASSE BETWEEN RESPONDENT AND THE UNION.
18. RESPONDENT HAS FAILED AND REFUSED TO MEET AND NEGOTIATE WITH THE
UNION TO DISCUSS THE IMPLEMENTATION OF FSIP'S FINAL DECISIONS AND ORDER
TO THE EXTENT REQUIRED BY THE DECISIONS AND ORDERS.
19. RESPONDENT HAS FAILED AND REFUSED TO FOLLOW FSIP'S DIRECTION TO
SEND THE PANEL EVIDENCE OF COMPLIANCE WITH THE FINAL DECISIONS AND
ORDERS WITHIN 30 DAYS OF RESPONDENT'S RECEIPT THEREOF.
DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
THE UNDISPUTED FACTS REFLECT THAT SINCE THE PANEL ISSUED ITS
DECISIONS AND ORDERS DATED OCTOBER 13, 1978 AND APRIL 13, 1979,
RESOLVING THE NEGOTIATION IMPASSE, RESPONDENT HAS FAILED AND REFUSED TO
COMPLY WITH THE DECISIONS AND ORDERS. RESPONDENT HAS FAILED AND REFUSED
TO MEET WITH THE UNIONS; HAS NOT AGREED TO ADOPT THE MANDATED LANGUAGE
IN THE AGREEMENT; AND HAS PRESENTED NO EVIDENCE OF COMPLIANCE WITHIN
THE 30 DAY PERIOD ORDERED BY THE PANEL.
ALTHOUGH RESPONDENT DID NOT SUBMIT A MEMORANDUM OF LAW IN SUPPORT OF
ITS POSITION IN THIS CASE, ITS AFFIRMATIVE DEFENSES SET FORTH IN THE
ANSWER HAVE, NEVERTHELESS, BEEN CONSIDERED IN LIGHT OF THE GENERAL
COUNSEL'S POSITION ON THESE DEFENSES AND THE RECORD AS A WHOLE.
RESPONDENT ASSERTS THAT THE FEDERAL LABOR RELATIONS AUTHORITY LACKS
JURISDICTION TO ENTERTAIN THE CHARGES IN THE COMPLAINT INASMUCH AS SUCH
CHARGES ARE PREMATURE WHILE A PETITION FOR RECONSIDERATION OF THE ORDERS
OF THE FEDERAL SERVICES IMPASSES PANEL IS PENDING BEFORE THE AUTHORITY.
RESPONDENT ALSO CLAIMS THAT CONSIDERATION OF THE CHARGES AT THIS TIME
WOULD CONSTITUTE A DENIAL OF DUE PROCESS AND EQUAL PROTECTION OF THE
LAW. RESPONDENT'S DEFENSES IN THIS REGARD HAVE BEEN RENDERED MOOT BY
THE DECISIONS OF THE AUTHORITY, DATED DECEMBER 5, 1979, DENYING THE
PETITIONS. (EXHIBITS 11 AND 12). SEE ALSO STATE OF NEW YORK, DIVISION
OF MILITARY AND NAVAL AFFAIRS AND NEW YORK COUNCIL, ASSOCIATION OF
CIVILIAN TECHNICIANS, INC., 78 FSIP 32, FLRA NO. 0-MC-2, 2 FLRA 20
(DEC. 5, 1979).
RESPONDENT'S THIRD AFFIRMATIVE DEFENSE ALLEGES THAT THE IMPASSE PANEL
DECISIONS AND ORDERS ARE INVALID BECAUSE THEY:
(A) ARE BASED ON A REQUIREMENT FOR THE CALIFORNIA NATIONAL GUARD TO
JUSTIFY VIA A STANDARD
OF "COMPELLING NEED" A DEFENSE DEPARTMENT AND CALIFORNIA REGULATIONS
WHICH RESPONDENT DEEMS TO
BE NON-NEGOTIABLE,
(B) IMPROPERLY BY AGENCY REGULATION ATTEMPT TO ABROGATE THE AUTHORITY
OF THE COMMANDING
GENERAL - STATE MILITARY FORCES GRANTED HIM BY FEDERAL STATUTE, TO
WIT, TITLE 32, UNITED
STATES CODE, SECTION 709(C),
(C) IMPROPERLY ATTEMPT TO VITIATE A MILITARY REGULATION, A MATTER
OVER WHICH FLRA HAS NO
AUTHORITY, SINCE IN THIS INSTANCE FLRA POWERS DERIVE FROM AN
EXECUTIVE ORDER WHILE THE
MILITARY AUTHORITY STEMS FROM ACTS OF CONGRESS,
(D) ARE BASED ON CRITERIA DEVELOPED OUTSIDE OF THE THEN FEDERAL LABOR
RELATIONS COUNCIL'S
GRANT OF AUTHORITY BY CONGRESS,
(E) ARE BASED ON RULES WHICH VIOLATE BASIC PRINCIPLES OF EQUITY AND
ADMINISTRATIVE LAW.
RESPONDENT'S DEFENSES (A) THROUGH (D), WHILE COUCHED IN TERMS OF
OBJECTIONS TO THE IMPASSES PANEL DECISIONS APPEAR FROM THE RECORD TO
ACTUALLY CONCERN THE NEGOTIABILITY OF THE MATTER AT IMPASSE, I.E., THE
SUBJECT OF CIVILIAN GUARD TECHNICIAN ATTIRE, AND, IN SHORT, CONSTITUTE
AN ATTEMPT TO COLLATERALLY ATTACK THE DECISION OF THE FEDERAL RELATIONS
COUNCIL IN WHICH THE COUNCIL DETERMINED THAT THE PROPOSALS BEFORE IT
CONCERNING TECHNICIAN ATTIRE WERE PROPERLY SUBJECT TO NEGOTIATION UNDER
SECTION 11(A) OF THE EXECUTIVE ORDER. /6/
THE IMPASSES PANEL DOES NOT DETERMINE WHETHER OR NOT AN ISSUE IS
NEGOTIABLE, /7/ AND, THUS, ITS DECISION IS NOT SUBJECT TO A COLLATERAL
ATTACK. MOREOVER, RESPONDENT COULD HAVE OBTAINED REVIEW OF THE
COUNCIL'S DECISION IN DISTRICT COURT UNDER THE JUDICIAL REVIEW
PROVISIONS OF THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. 701 ET. SEQ.
NATIONAL BROILER COUNCIL INC. V. FLRA, 382 F.SUPP. 322, 86 LRRM 2113
(E.D. VA. 1974). IN THAT CASE, AFTER DETERMINING THAT A COUNCIL
NEGOTIABILITY DECISION WAS A "FINAL AGENCY ACTION" FOR PURPOSES OF
JUDICIAL REVIEW UNDER 5 U.S.C. 701 ET, SEQ., THE COURT REVIEWED
OBJECTIONS TO THE COUNCIL'S DECISION ANALOGOUS TO THOSE RAISED BY
RESPONDENT HEREIN; INCLUDING A DETERMINATION THAT THE PETITIONER
BROILER COUNCIL, WHILE NOT A PARTICIPANT IN THE PROCEEDINGS BEFORE THE
COUNCIL, WAS AN INTERESTED PARTY WITH STANDING TO SEEK JUDICIAL REVIEW.
RESPONDENT'S DEFENSE (E), THAT THE PANEL'S DECISION IS BASED ON RULES
WHICH VIOLATE BASIC PRINCIPLES OF EQUITY AND ADMINISTRATIVE LAW, APPEARS
TO RELATE TO RESPONDENT'S ARGUMENT THAT THE PANEL WAS REQUIRED TO HOLD A
FACT-FINDING HEARING IN THE CASE.
IN ITS DECISION AND ORDER DATED OCTOBER 13, 1978, (EXHIBIT 5), THE
PANEL STATED THAT NEITHER EXECUTIVE ORDER 11491 NOR THE PANEL'S OWN
RULES REQUIRED IT TO HOLD A HEARING IN EACH AND EVERY CASE. THE PANEL
NOTED:
IN THE RESPONSE ITSELF THE EMPLOYER ARGUES THAT THE ORDERS TO SHOW
CAUSE DEPRIVE THE
EMPLOYER OF ITS RIGHTS UNDER EXECUTIVE ORDER 11491 AND THE PANEL'S
RULES OF
PROCEDURE. EXECUTIVE ORDER 11491 AND THE PANEL'S RULES, HOWEVER
CONTAIN NO REQUIREMENT THAT A
HEARING BE HELD IN EACH AND EVERY CASE. RATHER, SECTIONS 4 AND 17 OF
EXECUTIVE ORDER 11491
PROVIDE THAT THE PANEL "MAY TAKE ANY ACTION IT CONSIDERS NECESSARY TO
SETTLE AN IMPASSE" AND
"MAY SETTLE THE IMPASSE BY APPROPRIATE ACTION." THIS BROAD AUTHORITY
TO RESOLVE NEGOTIATION
IMPASSES HAS BEEN INCORPORATED IN SECTIONS 2471.6(A)(6),
2471.13(D)(2), AND 2471.15 OF THE
PANEL'S RULES. THUS, UNDER THE CIRCUMSTANCES OF THESE CASES, WHERE
THE PANEL HAS (1)
PREVIOUSLY CONSIDERED THE ISSUE AT IMPASSE ON SEVERAL OCCASIONS, (2)
DETERMINE THAT THESE
CASES APPEAR ESSENTIALLY SIMILAR TO THOSE EARLIER CASES, AND (3)
DETERMINED THAT IT IS
NECESSARY TO SETTLE PROMPTLY THESE PROTRACTED IMPASSES, THE PANEL'S
ACTION-AFFORDING THE
PARTIES AN OPPORTUNITY TO STATE IN WRITING WHAT MATERIAL FACTS THEY
BELIEVE ARE SIGNIFICANTLY
DIFFERENT FROM OTHER NATIONAL GUARD UNIFORM CASES-IS CONSISTENT WITH
ITS AUTHORITY UNDER
EXECUTIVE ORDER 11491 AND ITS RULES. (FOOTNOTE OMITTED.)
IN ITS SHOW CAUSE ORDERS DATED JUNE 30, 1978 (EXHIBITS 3(A)-(E)) THE
PANEL AFFORDED RESPONDENT AN OPPORTUNITY TO SHOW CAUSE, IN WRITING, WHY
CONTRACT LANGUAGE ORDERED BY THE PANEL IN ELEVEN PRIOR CASES CONCERNING
THE UNIFORM ISSUE SHOULD NOT ALSO BE ADOPTED IN THESE CASES. RESPONDENT
WAS ORDERED TO SPECIFY WHAT MATERIAL FACTS WERE SIGNIFICANTLY DIFFERENT
FROM THE PREVIOUS CASES. RESPONDENT CHOSE TO RELY ON ITS RESPONSE TO
THE SHOW CAUSE ORDER (EXHIBIT 4) TO SUPPORT ITS POSITION. AFTER
CONSIDERING THE RESPONSE, THE PANEL HELD THAT THE RESPONSE DID NOT SHOW
MATERIAL FACTS SIGNIFICANTLY DIFFERENT FROM THOSE CONSIDERED IN PREVIOUS
CASES; DETERMINED THAT THE HOLDING OF A FACTFINDING HEARING WAS NOT
WARRANTED; AND, ACCORDINGLY, IT ISSUED ITS DECISION AND ORDER.
(EXHIBIT 5 AND 6).
THE DECISIONS OF THE PANEL THOROUGHLY DISCUSSED AND REJECTED EACH
ARGUMENT RAISED BY THE RESPONSE. RESPONDENT THEN FILED A MOTION FOR
RECONSIDERATION OF THE PANEL'S DECISION AND ORDER. (EXHIBIT 7). AGAIN
THE PANEL ADDRESSED EACH ARGUMENT RAISED BY RESPONDENT IN A DETAILED
ANALYSIS EMBODIED IN ITS DENIAL AND RESPONDENT'S MOTION FOR
RECONSIDERATION DATED JANUARY 9, 1979. (EXHIBIT 8).
IT IS CONCLUDED THAT THE PANEL AFFORDED RESPONDENT AMPLE OPPORTUNITY
TO PRESENT EVIDENCE AND ARGUMENT CONSISTENT WITH ITS BROAD AUTHORITY
UNDER SECTIONS 5 AND 17 OF EXECUTIVE ORDER 11941, AS AMENDED, TO RESOLVE
NEGOTIATION IMPASSES IN THE FEDERAL SECTOR; THAT RESPONDENT WAS
AFFORDED PROCEDURAL DUE PROCESS, THAT THERE IS A RATIONAL BASIS FOR THE
PANEL'S DECISIONS; AND THAT THE PANEL'S DECISIONS AND ORDER IN THESE
CASES WERE NEITHER ARBITRARY NOR CAPRICIOUS, BUT ARE LEGAL AND VALID.
THE RECORD DEMONSTRATES THAT RESPONDENT HAS FAILED AND REFUSED TO
COMPLY AND COOPERATE WITH FINAL DECISIONS AND ORDERS OF THE FEDERAL
SERVICES IMPASSES PANEL, IN VIOLATION OF 5 U.S.C. 7116(A)(6) AND (8),
HAS FAILED AND REFUSED TO CONSULT AND NEGOTIATE WITH THE UNION
CONCERNING THE IMPLEMENTATION OF THE PANEL'S FINAL DECISIONS AND ORDERS,
IN VIOLATION OF SECTION 19(A)(6) OF EXECUTIVE ORDER 11491, AS AMENDED,
AND 5 U.S.C. 7116(A)(5), AND, BY SUCH ACTION, HAS INTERFERED WITH AND
RESTRAINED THE EXERCISE BY EMPLOYEES OF THEIR RIGHTS IN VIOLATION OF
SECTION 19(A)(1) OF EXECUTIVE ORDER 11491, AS AMENDED, AND 5 U.S.C.
7116(A)(1). ACCORDINGLY, I RECOMMEND THAT THE AUTHORITY ISSUE THE
FOLLOWING ORDER:
ORDER
PURSUANT TO 5 U.S.C.SECTION 7118(A)(7)(A) AND SECTION 7135 AND 5
C.F.R.SECTION 2423.29(B)(1), THE AUTHORITY HEREBY ORDERS THAT THE STATE
OF CALIFORNIA NATIONAL GUARD SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING THE COMPLY AND COOPERATE WITH DECISIONS AND
ORDERS OF THE FEDERAL SERVICES IMPASSES PANEL ISSUED OCTOBER 13, 1978
AND APRIL 13, 1979.
(B) FAILING AND REFUSING TO MEET AND NEGOTIATE IN GOOD FAITH WITH THE
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R12-105, R12-125,
R12-132, R12-146, AND R12-150 CONCERNING MATTERS PERTAINING TO THE
IMPLEMENTATION OF DECISIONS AND ORDERS OF THE FEDERAL SERVICES IMPASSES
PANEL ISSUED OCTOBER 13, 1978 AND APRIL 13, 1979 TO THE EXTENT REQUIRED
BY SUCH DECISIONS AND ORDERS.
(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, AND THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO CARRY OUT THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED, AND THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE:
(A) COMPLY AND COOPERATE FORTHWITH WITH DECISIONS AND ORDER OF THE
FEDERAL SERVICES IMPASSES PANEL ISSUED OCTOBER 13, 1978 AND APRIL 13,
1979.
(B) MEET WITH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
12-105, R12-125, R12-132, R12-146, AND R12-150 AND NEGOTIATE IN GOOD
FAITH CONCERNING MATTERS PERTAINING TO THE IMPLEMENTATION OF DECISIONS
AND ORDERS OF THE FEDERAL SERVICES IMPASSES PANEL ISSUED OCTOBER 13,
1978 AND APRIL 13, 1979 TO THE EXTENT REQUIRED BY SUCH DECISIONS AND
ORDERS.
(C) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF
SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDING GENERAL, CALIFORNIA
NATIONAL GUARD, 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 GENERAL SHALL TAKE REASONABLE STEPS
TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(D) PURSUANT TO 5 C.F.R. SECTION 2423.30 NOTIFY THE REGIONAL
DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 9, 450 GOLDEN GATE
AVENUE, ROOM 11409, P. O. BOX 36016, SAN FRANCISCO, CALIFORNIA 94102, IN
WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS
HAVE BEEN TAKEN TO COMPLY HEREWITH.
GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 21, 1980
WASHINGTON, D.C.
APPENDIX
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT FAIL AND REFUSE TO COMPLY WITH DECISIONS AND ORDERS OF
THE FEDERAL SERVICES IMPASSES PANEL ISSUED OCTOBER 13, 1978 AND APRIL
13, 1979.
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, AND THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL COMPLY AND COOPERATE FORTHWITH WITH DECISIONS AND ORDERS OF
THE FEDERAL SERVICES IMPASSES PANEL ISSUED OCTOBER 13, 1978 AND APRIL
13, 1979 AND WILL OTHERWISE COOPERATE IN IMPASSE PROCEDURES AND
DECISIONS AS REQUIRED BY THE FEDERAL SERVICES LABOR-MANAGEMENT RELATIONS
STATUTE.
WE WILL MEET WITH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
LOCALS R12-105, R12-125, R12-132, R12-146, AND R12-150, AND NEGOTIATE IN
GOOD FAITH CONCERNING MATTERS PERTAINING TO THE IMPLEMENTATION OF
DECISIONS AND ORDERS OF THE FEDERAL SERVICES IMPASSES PANEL ISSUED
OCTOBER 13, 1978 AND APRIL 13, 1979 TO THE EXTENT REQUIRED BY SUCH
DECISIONS AND ORDERS.
(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 DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 9, 450
GOLDEN GATE AVENUE, ROOM 11409, P. O. BOX 36016, SAN FRANCISCO,
CALIFORNIA 94102.
/1/ IN ITS EXCEPTIONS, THE RESPONDENT CONTENDS THAT IT WAS NOT
AFFORDED OPPORTUNITY TO PRESENT LEGAL ARGUMENTS PURSUANT TO THE
ADMINISTRATIVE LAW JUDGE'S GRANTING OF A SUMMARY JUDGMENT. IN THIS
REGARD, RESPONDENT CONTENDS IT ONLY HAD AN OPPORTUNITY TO RESPOND TO
GENERAL COUNSEL'S INITIAL MOTION FOR PARTIAL SUMMARY JUDGMENT. IT
APPEARS THAT THE RESPONDENT WAS FULLY AWARE OF THE SCHEDULE, NATURE AND
EXTENT OF RESPONSE REQUIRED TO PRESERVE ITS RIGHTS, AND WAS NOT
PREJUDICED BY THE CAPTIONING OF GENERAL COUNSEL'S PLEADING AS "PARTIAL"
WHICH WAS PREDICATED UPON THE BRIEFING SCHEDULE AGREED TO BY THE
PARTIES.
/2/ CF. FED. R. CIV. P. 56; LYONS V. BD. OF ED. CHARLESTON
REORGANIZED SCHOOL DISTRICT NO. 1 OF MISS. CTY., MO., 523 F.2D 340, 347
(8TH CIR., 1975).
/3/ THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE REQUIRES
THAT HEARINGS BE CONDUCTED IN ACCORDANCE WITH THE ADMINISTRATIVE
PROCEDURE ACT, 5 U.S.C. 551 ET. SEQ., TO THE EXTENT PRACTICABLE. 5
U.S.C. 7118(A)(6). MOTIONS IN THE NATURE OF MOTIONS FOR SUMMARY
JUDGMENT ARE DEEMED APPROPRIATE UNDER THE ADMINISTRATIVE PROCEDURE ACT.
SEE, E.G., MUNICIPAL LIGHT BOARDS OF READING AND WAKEFIELD, MASS V.
FEDERAL POWER COMMISSION, 450 F.2D 1341, 1345-1346 (D.C. CIR., 1971),
CERT. DENIED, 405 U.S. 989(1972).
/4/ DAVIS, ADMINISTRATIVE LAW TREATISE, SECOND EDITION, SECS. 12.1,
12.10(1979).
/5/ CF. DAVIS, SUPRA, SEC. 12.1, AT P. 406. THE PRACTICE UNDER
EXECUTIVE ORDER 11491, AS AMENDED, WAS SUBSTANTIALLY THE SAME. SEE
INTERNAL REVENUE SERVICE, A/SLMR NO. 897, 7 A/SLMR 782(1977).
/6/ NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-87 AND
KANSAS NATIONAL GUARD, 5 FLRC 124, 336 (FLRC NO. 76A-16 (AND OTHER CASES
CONSOLIDATED THEREWITH) (JANUARY 19, 1977), REPORT NO. 120); AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1636 AND STATE OF NEW
MEXICO NATIONAL GUARD, 5 FLRC 146, 336 (FLRC NO. 76A-75 (AND OTHER CASES
CONSOLIDATED THEREWITH) (JANUARY 19, 1977), REPORT NO. 120);
RECONSIDERATION DENIED, 5 FLRC 336 (MAY 18, 1977), REPORT NO. 125.
/7/ 5 U.S.C. 7119; 5 U.S.C. 7117; SECTION 11 OF EXECUTIVE ORDER
11491, AS AMENDED. SEE ALSO THE PANEL'S COMMENTS ON THIS QUESTION IN
ITS DECISION AND ORDER IN THE INSTANT CASE. (EXHIBIT 5, P. 3).
8 FLRA 10; FLRA 4-CU-22; FEBRUARY 4, 1982.
USA DARCOM
MATERIEL READINESS SUPPORT
ACTIVITY (MRSA)
LEXINGTON, KENTUCKY
AND
U.S. ARMY CENTRAL TEST
MEASUREMENT DIAGNOSTIC
EQUIPMENT ACTIVITY
LEXINGTON, KENTUCKY
ACTIVITY-PETITIONERS /1/
AND
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 894, AFL-CIO
LABOR ORGANIZATION
CASE NO. 4-CU-22
DECISION AND ORDER CLARIFYING UNIT
UPON A PETITION DULY FILED UNDER SECTION 7111(B)(1) OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), A HEARING WAS
HELD BEFORE A HEARING OFFICER OF THE AUTHORITY. 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-PETITIONERS' BRIEF AND POST-HEARING MOTION FOR AMENDMENT OF THE
PETITION, /2/ THE AUTHORITY FINDS: THE PETITIONERS SEEK TO CLARIFY THE
EXISTING EXCLUSIVELY RECOGNIZED UNIT TO EXCLUDE FROM THE BARGAINING UNIT
15 INCUMBENTS IN TEAM LEADER POSITIONS AS EITHER SUPERVISORS OR
MANAGEMENT OFFICIALS. /3/ THE PETITIONERS FILED THE INSTANT PETITION
WITH THE AUTHORITY SEEKING A DETERMINATION AS TO WHETHER THE INCUMBENTS
AT ISSUE SHOULD BE EXCLUDED FROM THE BARGAINING UNIT. THE EXCLUSIVE
REPRESENTATIVE, AFGE LOCAL 894, AFL-CIO, ASSERTS THE EMPLOYEES ARE NOT
SUPERVISORS OR MANAGEMENT OFFICIALS AS DEFINED IN SECTION 7103 OF THE
STATUTE /4/ AND SHOULD REMAIN INCLUDED IN THE BARGAINING UNIT.
THE BASIC MISSION OF THE USA DARCOM MATERIAL READINESS SUPPORT
ACTIVITY (MRSA) IS TO EVALUATE THE READINESS AND MAINTENANCE OF FIELD
AND DEVELOPMENTAL EQUIPMENT AND THE LOGISTICAL SUPPORT OF THE TROOPS IN
THE FIELD. THERE ARE FIVE DIVISIONS WITHIN MRSA, EACH BROKEN DOWN INTO
SEVERAL BRANCHES. GENERALLY, THE BRANCHES ARE DIVIDED INTO CELLS OR
TEAMS WITH ONE OF THE INCUMBENTS AT ISSUE HEADING UP EACH CELL OR TEAM
GROUP. THE MISSION OF THE U.S. ARMY CENTRAL TEST MEASUREMENT
DIAGNOSTIC EQUIPMENT ACTIVITY (CTA) IS TO MANAGE THE TEST MEASUREMENT
DIAGNOSTIC EQUIPMENT (TMDE) PROGRAM BY EVALUATING TMDE READINESS
MATTERS, PROVIDING READINESS SUPPORT TO SYSTEMS AND EQUIPMENT
DEVELOPERS, AND CONTROLLING THE ACQUISITION OF TEST EQUIPMENT. LIKE
MRSA, CTA IS BROKEN DOWN INTO DIVISIONS. HOWEVER, THE DIVISIONS ARE NOT
DIVIDED INTO BRANCHES, BUT ONLY INTO TEAMS. THE TEAM LEADERS IN
QUESTION HEAD UP THESE TEAMS. THE INDIVIDUALS IN MRSA AND CTA ARE
ENGAGED IN WORK WHICH CONSISTS OF SYSTEMS ANALYSIS, REPORT WRITING,
CORRESPONDENCE WITH OTHER ARMY AND DOD COMPONENTS AND CONTRACTORS,
REGULATION UPDATING AND, IN SOME CASES, FIELD INSPECTIONS. BOTH
ACTIVITIES HAVE BEEN CONTINUOUSLY GOING THROUGH REORGANIZATIONS AND JOB
RESTRUCTURING; THUS THE FOLLOWING DETERMINATIONS ARE BASED UPON THE
DUTIES AND RESPONSIBILITIES PERFORMED BY THE INCUMBENTS AT THE TIME OF
THE HEARING.
READINESS ANALYSIS AND EQUIPMENT IMPROVEMENT BRANCH,
READINESS DIVISION, MRSA
DONALD D. PAOLINI, MAINTENANCE MANAGEMENT OFFICER, GS-301-13, JOB
NUMBER M-224E.
JEREMIAH C. DAY, OPERATIONS RESEARCH ANALYST, GS-1515-13, JOB NUMBER
M-418E.
WILLIAM D. STEVENS, MAINTENANCE MANAGEMENT SPECIALIST, GS-301-13, JOB
NUMBER M-546E.
THE AUTHORITY FINDS THAT INCUMBENT DONALD D. PAOLINI IS NEITHER A
SUPERVISOR NOR MANAGEMENT OFFICIAL WITHIN THE MEANING OF SECTION
7103(A)(10) AND (11) OF THE STATUTE. THUS, IN REGARD TO SUPERVISORY
STATUS, ALTHOUGH THE INCUMBENT ASSIGNS WORK TO TEAM MEMBERS AND REVIEWS
THEIR WORK PRODUCT FROM A TECHNICAL STANDPOINT, SUCH DUTIES ARE ROUTINE
IN NATURE. IN ADDITION, HIS RECOMMENDATIONS REGARDING LEAVE REQUESTS
AND PERFORMANCE EVALUATION ARE MERELY ROUTINE OR CLERICAL IN NATURE AND
DO NOT REQUIRE THE CONSISTENT EXERCISE OF INDEPENDENT JUDGMENT. IN
DETERMINING PAOLINI IS NOT A MANAGEMENT OFFICIAL, IT IS NOTED THAT HIS
RECOMMENDATIONS CONCERNING TECHNICAL MATTERS APPEAR TO BE BASED UPON
STUDIES AND ANALYSES ASSIGNED TO HIM BY OUTSIDE AUTHORITIES AND THERE IS
NO EVIDENCE THAT HE FORMULATES, DETERMINES, OR INFLUENCES AGENCY POLICY.
RATHER, HE FUNCTIONS AS AN EXPERT OR PROFESSIONAL RENDERING ADVICE ON
THE PROCEDURES TO EFFECTUATE OR DETERMINE SUCH POLICY. /5/ THEREFORE,
IT IS CONCLUDED THAT DONALD D. PAOLINI SHOULD REMAIN INCLUDED IN THE
EXCLUSIVELY RECOGNIZED UNIT.
THE AUTHORITY FINDS THAT INCUMBENT JEREMIAH C. DAY IS NEITHER A
SUPERVISOR NOR MANAGEMENT OFFICIAL WITHIN THE MEANING OF SECTION 7103 OF
THE STATUTE. THUS, IN REGARD TO HIS SUPERVISORY STATUS, THE INCUMBENT
IS A SENIOR-LEVEL EXPERT WHO PERFORMS THE TEAM LEADER FUNCTIONS OF
ASSIGNING WORK TO TEAM MEMBERS AND REVIEWING THEIR WORK PRODUCT FROM A
TECHNICAL STANDPOINT. ALTHOUGH DAY MAKES EFFECTIVE RECOMMENDATIONS WITH
REGARD TO AWARDS, REWARDS AND LETTERS OF COMMENDATION, SUCH
RECOMMENDATIONS ARE ROUTINE IN NATURE AND DO NOT REQUIRE THE EXERCISE OF
INDEPENDENT JUDGMENT. IN DETERMINING WHETHER DAY IS A MANAGEMENT
OFFICIAL, IT IS NOTED HE PERFORMS STUDIES WHICH RESULT IN TECHNICAL
INFORMATION WHICH BECOMES PART OF LARGER PROJECTS STAFFED BY SEVERAL
ORGANIZATIONS. SUCH INPUT IS THAT OF AN EXPERT OR PROFESSIONAL
RENDERING ADVICE OR EXPERTISE RATHER THAN OF A MANAGEMENT OFFICIAL
FORMULATING, DETERMINING, OR INFLUENCING AGENCY POLICY. /6/ THEREFORE,
THE AUTHORITY FINDS THAT JEREMIAH C. DAY SHOULD REMAIN INCLUDED IN THE
EXCLUSIVELY RECOGNIZED UNIT.
THE AUTHORITY FINDS THAT INCUMBENT WILLIAM D. STEVENS IS NEITHER A
SUPERVISOR NOR MANAGEMENT OFFICIAL WITHIN THE MEANING OF SECTION 7103 OF
THE STATUTE. HIS DUTIES AND RESPONSIBILITIES ARE BASICALLY SIMILAR TO
THOSE OF HIS TWO COUNTERPARTS IN THE BRANCH, EXCEPT THAT HIS FUNCTIONAL
AREA IS DIFFERENT. THE DUTIES AND RESPONSIBILITIES OF THE INCUMBENT ARE
SUCH THAT HE DOES NOT EXERCISE ANY OF THE REQUISITE INDICIA OF
SUPERVISORY AUTHORITY, AND RECOMMENDATIONS HE HAS MADE HAVE BEEN ROUTINE
IN NATURE AND DO NOT REQUIRE THE EXERCISE OF INDEPENDENT JUDGMENT. IN
ITS PETITION HEREIN THE ACTIVITY-PETITIONER SOUGHT TO EXCLUDE THE
INCUMBENT SOLELY ON THE BASIS OF SUPERVISORY INDICIA. HOWEVER, IN ITS
POST-HEARING MOTION IT SOUGHT ALSO TO EXCLUDE HIM ON THE BASIS OF BEING
A MANAGEMENT OFFICIAL. THERE IS INSUFFICIENT EVIDENCE IN THE RECORD TO
DETERMINE WHETHER THE INCUMBENT SHOULD BE EXCLUDED ON THAT BASIS.
ACCORDINGLY, THE AUTHORITY FINDS THAT WILLIAM D. STEVENS SHOULD REMAIN
INCLUDED IN THE EXCLUSIVELY RECOGNIZED UNIT.
INTEGRATED LOGISTIC SUPPORT BRANCH, READINESS DIVISION, MRSA
JAMES J. CONFIDES, MAINTENANCE MANAGEMENT SPECIALIST, GS-301-13, JOB
NUMBER M-546E.
JOHN G.WILSON, MAINTENANCE MANAGEMENT SPECIALIST, GS-301-13, JOB
NUMBER M-346E.
WILLIAM C.DATES, MAINTENANCE MANAGEMENT SPECIALIST, GS-301-13, JOB
NUMBER M-364-E.
THE AUTHORITY FINDS THAT INCUMBENT JAMES J. CONFIDES IS NEITHER A
SUPERVISOR NOR MANAGEMENT OFFICIAL WITHIN THE MEANING OF SECTION 7103 OF
THE STATUTE. THUS, IN REGARD TO SUPERVISORY STATUS, THE RECORD SHOWS
THAT THE INCUMBENT'S MAIN FUNCTION AS A TEAM LEADER IS AS A SENIOR LEVEL
ACTION OFFICER WHO COORDINATES AND REVIEWS THE TEAM'S PRODUCT. HE DOES
NOT EXERCISE ANY OF THE INDICIA OF SUPERVISORY AUTHORITY. A MAJORITY OF
THE ASSIGNMENTS OF THE TEAM ARE ROUTINE AND REPETITIVE IN NATURE AND ARE
DICTATED BY REGULATION. ALTHOUGH THE ACTIVITY-PETITIONER ORIGINALLY
SOUGHT IN ITS PETITION TO EXCLUDE THE INCUMBENT SOLELY ON THE BASIS OF
BEING A SUPERVISOR, IN ITS POST-HEARING MOTION IT SOUGHT ALSO TO EXCLUDE
HIM ON THE BASIS OF BEING A MANAGEMENT OFFICIAL. HOWEVER, THERE IS
INSUFFICIENT EVIDENCE IN THE RECORD TO DETERMINE WHETHER THE INCUMBENT
SHOULD BE EXCLUDED AS A MANAGEMENT OFFICIAL. ACCORDINGLY, THE AUTHORITY
FINDS THAT JAMES J. CONFIDES SHOULD REMAIN INCLUDED IN THE EXCLUSIVELY
RECOGNIZED UNIT.
THE AUTHORITY FINDS THAT INCUMBENT JOHN G. WILSON IS NEITHER A
SUPERVISOR NOR MANAGEMENT OFFICIAL WITHIN THE MEANING OF SECTION 7103 OF
THE STATUTE. THUS, THE DUTIES AND RESPONSIBILITIES OF THE INCUMBENT ARE
SUCH THAT HE DOES NOT EXERCISE ANY OF THE REQUISITE INDICIA OF
SUPERVISORY AUTHORITY, AND HIS RECOMMENDATIONS ARE MERELY ROUTINE OR
CLERICAL IN NATURE AND REQUIRE NO CONSISTENT EXERCISE OF INDEPENDENT
JUDGEMENT. AS NOTED EARLIER, THE ACTIVITY-PETITIONER ORIGINALLY SOUGHT
ONLY TO EXCLUDE THE INCUMBENT FROM THE UNIT ON THE BASIS OF BEING A
SUPERVISOR. SUBSEQUENTLY, IN ITS POST-HEARING MOTION IT ALSO SOUGHT TO
EXCLUDE THE INCUMBENT ON THE BASIS OF BEING A MANAGEMENT OFFICIAL.
HOWEVER, THERE IS INSUFFICIENT EVIDENCE IN THE RECORD TO DETERMINE
WHETHER HE SHOULD BE EXCLUDED AS A MANAGEMENT OFFICIAL. ACCORDINGLY, IT
IS CONCLUDED THAT JOHN G. WILSON SHOULD REMAIN INCLUDED IN THE
EXCLUSIVELY RECOGNIZED UNIT.
THE AUTHORITY FINDS THAT INCUMBENT WILLIAM C. DATES WHO LEADS THE
TEAM RESPONSIBLE FOR THE LOGISTICS SUPPORT ANALYSIS (LSA) AND LOGISTICS
SUPPORT ANALYSIS RECORDS (LSAR) AREA IS A SUPERVISOR WITHIN THE MEANING
OF SECTION 7103 OF THE STATUTE, AS HE EFFECTIVELY RECOMMENDS HIRING AND
HIS SUPERVISOR ALMOST ALWAYS ACCEPTS HIS RECOMMENDATIONS WITH REGARD TO
PROMOTION, WORK ASSIGNMENTS AND REWARDS. ACCORDINGLY, THE AUTHORITY
CONCLUDES THAT WILLIAM C. DATES SHOULD BE EXCLUDED FROM THE EXCLUSIVELY
RECOGNIZED UNIT BECAUSE HE IS A SUPERVISOR, AND FINDS IT UNNECESSARY TO
DETERMINE THE INCUMBENT'S MANAGEMENT OFFICIAL STATUS.
SUPPLY EVALUATION BRANCH, SUPPLY DIVISION, MRSA
DON M. HINDS, SUPPLY SYSTEMS ANALYST, GS-2003-13, JOB NUMBER 382.
ANDY DALLAK, SUPPLY SYSTEMS ANALYST, GS-2003-13, JOB NUMBER 382.
THE AUTHORITY FINDS THAT INCUMBENTS DON M. HINDS AND ANDY DALLAK ARE
NEITHER SUPERVISORS NOR MANAGEMENT OFFICIALS WITHIN THE MEANING OF
SECTION 7103 OF THE STATUTE. THUS, IN TERMS OF SUPERVISORY STATUS,
ALTHOUGH THE INCUMBENTS ASSIGN SOME WORK TO TEAM MEMBERS AND REVIEW
THEIR WORK PRODUCT FROM A TECHNICAL STANDPOINT, SUCH DUTIES ARE ROUTINE
IN NATURE. WITH RESPECT TO MANAGEMENT OFFICIAL STATUS, ANY
RECOMMENDATION THEY MAKE WITH RESPECT TO TECHNICAL CHANGES IN AGENCY
POLICIES ARE BASED ON PROJECTS ASSIGNED TO THEM BY HIGHER AUTHORITIES
AND ARE REVIEWED, CHANGED OR MODIFIED THROUGH MANY LEVELS OF THE AGENCY.
IN THIS REGARD, ANY RECOMMENDATIONS THEY MAKE CONCERNING TECHNICAL
MATTERS ARE THOSE OF EXPERTS OR PROFESSIONALS RENDERING ADVICE OR
EXPERTISE RATHER THAN OF MANAGEMENT OFFICIALS FORMULATING, DETERMINING,
OR INFLUENCING AGENCY POLICY. /7/ ACCORDINGLY, THE AUTHORITY CONCLUDES
THAT DON M. HINDS AND ANY DALLAK SHOULD REMAIN IN THE EXCLUSIVELY
RECOGNIZED UNIT.
SUPPLY SYSTEMS BRANCH, SUPPLY DIVISION, MRSA
EDWIN W. LOY, JR., SUPPLY SYSTEMS ANALYST, GS-2003-13, JOB NUMBER
383-E.
CLARENCE F. ELKINS, SUPPLY SYSTEMS ANALYST, GS-2003-13, JOB NUMBER
383-E.
IRA E. MEADOWS, JR., SUPPLY SYSTEMS ANALYST, GS-2003-13, JOB NUMBER
382-E.
THE AUTHORITY FINDS THAT INCUMBENT EDWIN W. LOY, JR. IS NEITHER A
SUPERVISOR NOR A MANAGEMENT OFFICIAL WITHIN THE MEANING OF SECTION 7103
OF THE STATUTE. IN TERMS OF SUPERVISORY STATUS, LOY ACTS AS A SENIOR
LEVEL ANALYST WHO USUALLY WORKS ALONE "STAFFING" OR PROVIDING EXPERT
ANALYSIS IN HIS ASSIGNED FUNCTIONAL AREA. IN HIS CAPACITY AS TEAM
LEADER, THE INCUMBENT TO DATE HAS NOT EFFECTIVELY EXERCISED ANY OF THE
REQUISITE INDICIA OF A SUPERVISOR AS CONTAINED IN SECTION 7103(A)(10).
AS NOTED ABOVE, THE ACTIVITY-PETITIONER SOUGHT IN ITS POST-HEARING
MOTION TO EXCLUDE THE INCUMBENT AS A MANAGEMENT OFFICIAL AS WELL AS A
SUPERVISOR. HOWEVER, THERE IS INSUFFICIENT EVIDENCE TO DETERMINE
WHETHER THE INCUMBENT SHOULD BE SO EXCLUDED FROM THE UNIT. ACCORDINGLY,
THE AUTHORITY CONCLUDES THAT EDWIN W. LOY, JR. SHOULD REMAIN INCLUDED IN
THE EXCLUSIVELY RECOGNIZED UNIT.
THE PARTIES STIPULATED THAT THE TESTIMONY OF LOY WITH REGARD TO HIS
RESPONSIBILITIES IS REPRESENTATIVE OF THE DUTIES AND RESPONSIBILITIES OF
INCUMBENT CLARENCE F. ELKINS. THE AUTHORITY FINDS, BASED ON THE
PARTIES' STIPULATION AND THE LACK OF EVIDENCE TO THE CONTRARY, THAT
INCUMBENT CLARENCE F. ELKINS IS NEITHER A SUPERVISOR NOR MANAGEMENT
OFFICIAL WITHIN THE MEANING OF SECTION 7103 OF THE STATUTE.
ACCORDINGLY, THE AUTHORITY CONCLUDES THAT CLARENCE F. ELKINS SHOULD
REMAIN IN THE EXCLUSIVELY RECOGNIZED UNIT.
THE PARTIES ALSO STIPULATED THAT THE TESTIMONY OF INCUMBENTS DON M.
HINDS AND ANY DALLAK OF THE SUPPLY EVALUATION BRANCH APPLY TO INCUMBENT
IRA E. MEADOWS, JR. OF THE SUPPLY SYSTEMS BRANCH. ALL THREE INDIVIDUALS
ARE CLASSIFIED AS SUPPLY SYSTEMS ANALYST, GS-2003-13, JOB NUMBER 382.
THUS, AS IT HAS ALREADY BEEN DETERMINED THAT BOTH HINDS AND DALLAK ARE
NEITHER SUPERVISORS NOR MANAGEMENT OFFICIALS WITHIN THE MEANING OF
SECTION 7103 OF THE STATUTE, IT IS CONCLUDED THAT INCUMBENT IRA E.
MEADOWS, JR. IS NEITHER A SUPERVISOR NOR MANAGEMENT OFFICIAL WITHIN THE
MEANING OF SECTION 7103 OF THE STATUTE. ACCORDINGLY, IRA W. MEADOWS,
JR. SHOULD REMAIN INCLUDED IN THE EXCLUSIVELY RECOGNIZED UNIT.
ACQUISITION AND FIELD REQUIREMENTS DIVISION, CTA
VICTOR J. COLLETTA, GENERAL ENGINEER, GS-801-13, JOB NUMBER T-12,
637E.
THE AUTHORITY FINDS THAT INCUMBENT VICTOR J. COLLETTA IS NEITHER A
SUPERVISOR NOR A MANAGEMENT OFFICIAL WITHIN THE MEANING OF SECTION 7103
OF THE STATUTE. IN THIS REGARD, THE EVIDENCE SHOWS COLLETTA IS A SENIOR
ACTION OFFICER WHO SPENDS A MINIMAL AMOUNT OF HIS TIME PROVIDING
TECHNICAL REVIEW AND ASSISTANCE TO A LESS SENIOR ACTION OFFICER. HE
DOES NOT EXERCISE ANY INDICIA OF SUPERVISORY STATUS. FURTHER, ALTHOUGH
THE ACTIVITY-PETITIONER SOUGHT TO EXCLUDE THE INCUMBENT AS A MANAGEMENT
OFFICIAL IN ITS POST-HEARING MOTION, THERE IS INSUFFICIENT EVIDENCE TO
DETERMINE WHETHER HE SHOULD BE EXCLUDED ON THAT BASIS. ACCORDINGLY, THE
AUTHORITY FINDS THAT VICTOR J. COLLETTA SHOULD REMAIN IN THE EXCLUSIVELY
RECOGNIZED UNIT.
SYSTEMS EVALUATION DIVISION, CTA
PHILLIP T. SMITH, GENERAL ENGINEER, GS-801-13, JOB NUMBER T-12,
633-E.
LESLIE H. ADKINS, GENERAL ENGINEER, GS-801-13, JOB NUMBER T-12,
633-E.
THE AUTHORITY FINDS THAT INCUMBENTS PHILLIP T. SMITH AND LESLIE H.
ADKINS ARE NEITHER SUPERVISORS NOR MANAGEMENT OFFICIALS WITHIN THE
MEANING OF SECTION 7103 OF THE STATUTE. THEY DO NOT EXERCISE ANY OF THE
REQUISITE INDICIA OF SUPERVISORY AUTHORITY, BUT RATHER FUNCTION AS
SENIOR ENGINEERS. ANY ADVICE THEY PROVIDE ON TECHNICAL MATTERS IS MERELY
THAT OF EXPERTS OR PROFESSIONALS RENDERING RESOURCE INFORMATION OR
RECOMMENDATIONS AND NOT THAT OF MANAGEMENT OFFICIALS FORMULATING,
DETERMINING, OR INFLUENCING THE POLICIES OF THE AGENCY. /8/
ACCORDINGLY, THE AUTHORITY CONCLUDES THAT PHILLIP T. SMITH AND LESLIE
H. ADKINS SHOULD REMAIN INCLUDED WITHIN THE EXCLUSIVELY RECOGNIZED UNIT.
PLANNING AND RESOURCES DIVISION, CTA
GAYLE H. REES, GENERAL ENGINEER, GS-801-13, JOB NUMBER T-12, 641-E.
THE AUTHORITY FINDS INCUMBENT GAYLE H. REES WHO SERVES AS THE
DIVISION CHIEF OF THE PLANNING AND RESOURCES DIVISION AS WELL AS THE
ADMINISTRATIVE OFFICER FOR THE COMMANDER IS A SUPERVISOR WITHIN THE
MEANING OF SECTION 7103 OF THE STATUTE. AS THE RECORD SHOWS HE
EFFECTIVELY RECOMMENDS THE HIRING, DIRECTING, ASSIGNING, PROMOTING AND
REWARDING OF EMPLOYEES. ACCORDINGLY, THE AUTHORITY CONCLUDES THAT GAYLE
H. REES SHOULD BE EXCLUDED FROM THE EXCLUSIVELY RECOGNIZED UNIT, AND
FINDS IT IS UNNECESSARY TO DETERMINE THE INCUMBENT'S MANAGEMENT OFFICIAL
STATUS.
ORDER
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, FOR
WHICH THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 894,
AFL-CIO WAS CERTIFIED ON SEPTEMBER 11, 1975, AND SUBSEQUENTLY CLARIFIED
AND AMENDED ON JUNE 11, 1979, BE AND HEREBY IS, CLARIFIED BY DELETING
FROM SAID UNIT WILLIAM C. DATES, MAINTENANCE MANAGEMENT SPECIALIST,
GS-301-13, JOB NUMBER M-364-E AND GAYLE H. REES, GENERAL ENGINEER,
GS-801-13, JOB NUMBER T-12, 641-E.
DATED, WASHINGTON, D.C., FEBRUARY 4, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ SEE, USA DARCOM MATERIEL READINESS SUPPORT ACTIVITY (MRSA),
LEXINGTON, KENTUCKY, 1 FLRA 430(1979), WHEREIN THE AUTHORITY ORDERED
THAT THE UNIT REPRESENTED BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 894, AFL-CIO, CERTIFIED ON SEPTEMBER 11, 1975, BE
CLARIFIED TO INCLUDE THE EMPLOYEES OF THE U.S. ARMY TEST MEASUREMENT
DIAGNOSTIC EQUIPMENT ACTIVITY (USA CTA), LEXINGTON, KENTUCKY, AND
AMENDED BY CHANGING THE DESIGNATION OF THE UNIT FROM "EMPLOYEES OF THE
U.S. ARMY MAINTENANCE MANAGEMENT CENTER, LEXINGTON, KENTUCKY" TO
"EMPLOYEES OF THE U.S. ARMY DARCOM MATERIEL READINESS SUPPORT ACTIVITY
AND THE U.S. ARMY CENTRAL TEST MEASUREMENT DIAGNOSTIC EQUIPMENT
ACTIVITY, LEXINGTON, KENTUCKY."
/2/ THE LABOR ORGANIZATION FILED NO OPPOSITION TO THE
ACTIVITY-PETITIONERS' POST-HEARING MOTION FOR AMENDMENT OF THE PETITION
SEEKING TO EXCLUDE ALL POSITIONS AT ISSUE AS SUPERVISORY AND/OR
MANAGEMENT OFFICIALS.
/3/ THE PARTIES AGREED TO WITHDRAW FROM AUTHORITY CONSIDERATION THREE
INDIVIDUALS: RAYMOND W. BEATTYS, MAINTENANCE MANAGEMENT SPECIALIST,
GS-301-13, JOB NUMBER M-410E; REINHARDT W. BAGER, MAINTENANCE
MANAGEMENT SPECIALIST, GS-301-13, JOB NUMBER M-364E; AND CYRIL M.
BROWN, CHEMIST, GS-1320-13, JOB NUMBER M-404E, DUE TO NEW SUPERVISORY
JOB DESCRIPTIONS ASSIGNED TO THESE INDIVIDUALS.
/4/ SECTION 7103. DEFINITIONS; APPLICATION
(A) FOR THE PURPOSE OF THIS CHAPTER--
(10) "SUPERVISOR" MEANS AN INDIVIDUAL EMPLOYED BY AN AGENCY HAVING
AUTHORITY IN THE
INTEREST OF THE AGENCY TO HIRE, DIRECT, ASSIGN, PROMOTE, REWARD,
TRANSFER, FURLOUGH, LAYOFF,
RECALL, SUSPEND, DISCIPLINE, OR REMOVE EMPLOYEES, TO ADJUST THEIR
GRIEVANCES, OR TO
EFFECTIVELY RECOMMEND SUCH ACTION, IF THE EXERCISE OF THE AUTHORITY
IS NOT MERELY ROUTINE OR
CLERICAL IN NATURE BUT REQUIRES THE CONSISTENT EXERCISE OF
INDEPENDENT JUDGMENT, EXCEPT THAT,
WITH RESPECT TO ANY UNIT WHICH INCLUDES FIREFIGHTERS OR NURSES, THE
TERM "SUPERVISOR" INCLUDES
ONLY THOSE INDIVIDUALS WHO DEVOTE A PREPONDERANCE OF THEIR EMPLOYMENT
TIME TO EXERCISING SUCH
AUTHORITY;
(11) "MANAGEMENT OFFICIAL" MEANS AN INDIVIDUAL EMPLOYED BY AN AGENCY
IN A POSITION THE
DUTIES AND RESPONSIBILITIES OF WHICH REQUIRE OR AUTHORIZE THE
INDIVIDUAL TO FORMULATE,
DETERMINE, OR INFLUENCE THE POLICIES OF THE AGENCY(.)
/5/ SEE DEPARTMENT OF THE NAVY, AUTOMATIC DATA PROCESSING SELECTION
OFFICE, 7 FLRA NO. 24(1981), IN WHICH THE AUTHORITY INTERPRETED THE
DEFINITION OF MANAGEMENT OFFICIAL UNDER SECTION 7103(A)(11) OF THE
STATUTE AND CONCLUDED THAT IT INCLUDES THOSE INDIVIDUALS WHO: (1)
CREATE, ESTABLISH OR PRESCRIBE GENERAL PRINCIPLES, PLANS OR COURSES OF
ACTION FOR AN AGENCY; (2) DECIDE UPON OR SETTLE UPON GENERAL
PRINCIPLES, PLANS OR COURSES OF ACTION FOR AN AGENCY; OR (3) BRING
ABOUT OR OBTAIN A RESULT AS TO THE ADOPTION OF GENERAL PRINCIPLES, PLANS
OR COURSES OF ACTION FOR AN AGENCY.
/6/ ID.
/7/ ID.
/8/ ID.
8 FLRA 9; FLRA 7-CA-118; FEBRUARY 4, 1982.
HARRY S. TRUMAN MEMORIAL VETERANS HOSPITAL,
COLUMBIA, MISSOURI
RESPONDENT
AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3399
CHARGING PARTY
CASE NO. 7-CA-118
DECISION AND ORDER
THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO A REGIONAL DIRECTOR'S
"ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS AUTHORITY" IN
ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES AND
REGULATIONS.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND BRIEFS SUBMITTED BY THE
PARTIES, THE AUTHORITY FINDS:
AT ALL TIMES RELEVANT HEREIN, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3399 (THE UNION) WAS THE CERTIFIED EXCLUSIVE
REPRESENTATIVE OF A UNIT OF THE RESPONDENT'S EMPLOYEES. MS. MARY
RATLIFF, A UNIT EMPLOYEE, WAS APPOINTED AS A PART-TIME EEO COUNSELOR IN
1973 AND HAS SERVED IN THAT ROLE TO THE PRESENT TIME. ADDITIONALLY, SHE
WAS ELECTED VICE-PRESIDENT OF THE UNION IN MAY 1979, AND HAS ALSO SERVED
IN THAT ROLE TO THE PRESENT TIME.
ON MARY 17, 1979, IN A WRITTEN MEMORANDUM TO RATLIFF, THE RESPONDENT
STATED THAT IT APPEARED THAT A POTENTIAL CONFLICT OF INTEREST MIGHT
EXIST BETWEEN RATLIFF'S ROLE AS THE UNION VICE-PRESIDENT AND HER ROLE AS
AN EEO COUNSELOR. RESPONDENT REQUESTED RATLIFF'S RESPONSES TO CERTAIN
QUESTIONS IN ORDER TO ENABLE MANAGEMENT TO DETERMINE WHETHER A CONFLICT
OF INTEREST EXISTED IN HER CASE. THESE QUESTIONS WERE WHETHER, IN HER
ROLE AS UNION VICE-PRESIDENT, RATLIFF WOULD: (A) REPRESENT EMPLOYEES IN
APPEALS OF ADVERSE ACTIONS ON EEO HEARINGS OR APPEALS; (B) REPRESENT
EMPLOYEES IN GRIEVANCE PROCEDURES; AND (C) REPRESENT THE UNION IN
CONTRACT NEGOTIATIONS WITH MANAGEMENT.
RATLIFF REPLIED AS FOLLOWS:
(A) MY ROLE AS VICE-PRESIDENT IN ITSELF DOES NOT REQUIRE ME TO
REPRESENT EMPLOYEES IN GRIEVANCE(S), THIS IS A (STEWARD'S) FUNCTION.
(B) (ADVISE) EMPLOYEES ON PROCEDURES WHEN REQUIRED BUT WOULD AGAIN
NOT BE THE REPRESENTATIVE.
(C) I WILL POSSIBLY BE INVOLVED WITH CONTRACT NEGOTIATIONS.
ON JUNE 5, 1979, AFTER RECEIVING RATLIFF'S RESPONSES, RESPONDENT
ISSUED A WRITTEN MEMORANDUM TO RATLIFF STATING THAT RESPONDENT WAS STILL
CONCERNED THAT A POTENTIAL CONFLICT OF INTEREST MAY EXIST AND NOTIFYING
HER THAT RESPONDENT WOULD ASK FOR HER RESIGNATION AS EEO COUNSELOR IF,
IN THE FUTURE, IN THE EXERCISE OF HER DUTIES AS UNION VICE-PRESIDENT,
SHE: (A) REPRESENTED EMPLOYEES IN APPEALS OF ADVERSE ACTIONS ON EEO
HEARINGS OR APPEALS; (B) REPRESENTED EMPLOYEES IN GRIEVANCE PROCEDURES;
OR (C) REPRESENTED THE UNION IN CONTRACT NEGOTIATIONS WITH MANAGEMENT.
IT WAS STIPULATED THAT THE MEMORANDA OF MAY 17 AND JUNE 5 WERE ISSUED BY
RESPONDENT IN GOOD FAITH, BASED ON ITS CONCERN THAT A CONFLICT OF
INTEREST EXISTED, WITHIN THE MEANING OF SECTION 7120(E) OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, /1/ BY VIRTUE OF RATLIFF'S
SIMULTANEOUSLY SERVING IN BOTH THE POSITIONS OF UNION VICE-PRESIDENT AND
PART-TIME EEO COUNSELOR. /2/
THE UNION FILED AND SERVED ON RESPONDENT AN UNFAIR LABOR PRACTICE
CHARGE ON JUNE 18, 1979, ALLEGING THAT THE RESPONDENT VIOLATED SECTIONS
7116(A)(1) AND (2) OF THE STATUTE. THE BASIS FOR THE CHARGE WAS THAT
THE RESPONDENT ATTEMPTED TO COERCE RATLIFF BY THREATENING THE LOSS OF
HER POSITION AS PART-TIME EEO COUNSELOR UNLESS SHE RESIGNED HER POSITION
AS UNION VICE-PRESIDENT. THE FIRST AMENDED CHARGE WAS FILED BY THE
UNION ON FEBRUARY 11, 1980, DROPPING THE SECTION 7116(A)(2) ALLEGATION,
AND A COPY THEREOF WAS SERVED UPON RESPONDENT ON FEBRUARY 29, 1980,
SIMULTANEOUSLY WITH THE COMPLAINT AND NOTICE OF HEARING. THE COMPLAINT
ALLEGES THAT RESPONDENT VIOLATED SECTION 7116(A)(1) OF THE STATUTE BY
THE ISSUANCE OF THE JUNE 5, 1979, MEMORANDUM TO RATLIFF.
IN THE COMPLAINT AND THEIR SUBMITTED BRIEFS BOTH THE GENERAL COUNSEL
AND THE UNION TAKE THE POSITION THAT THE CONDUCT BY THE RESPONDENT
INTERFERED WITH AND RESTRAINED MS. RATLIFF IN EXERCISING HER RIGHT TO
ACT AS A REPRESENTATIVE OF A LABOR ORGANIZATION. THE RESPONDENT, ON THE
OTHER HAND, ARGUES THAT BY ISSUANCE OF THE JUNE 5, 1979, MEMORANDUM, IT
DID NOT VIOLATE SECTION 7116(A)(1) AND FURTHER TAKES THE POSITION THAT
RATLIFF'S SIMULTANEOUSLY SERVING DUAL ROLES OF EEO COUNSELOR AND UNION
VICE-PRESIDENT NECESSARILY CREATES A CONFLICT OR APPARENT CONFLICT OF
INTEREST PROSCRIBED BY SECTION 7120(E) OF THE STATUTE.
IN A PREVIOUS CASE, NOTING THAT THERE WAS NO EVIDENCE OF ANTI-UNION
MOTIVATION AND NOTHING IN THE RECORD OTHERWISE CAST DOUBT UPON THE
LEGITIMACY OF THE STATED REASONS GIVEN FOR AN AGENCY'S TERMINATION OF AN
EMPLOYEE AS AN EEO COUNSELOR, THE AUTHORITY FOUND THAT AN AGENCY DID NOT
COMMIT AN UNFAIR LABOR PRACTICE WHEN IT ATTEMPTED TO ACT CONSONANT WITH
THE "CONFLICT OF INTEREST" PROVISION OF SECTION 7120(E). DEPARTMENT OF
HEALTH, EDUCATION AND WELFARE, REGION VIII, DENVER, COLORADO, SOCIAL
SECURITY ADMINISTRATION, REGION VIII, DENVER, COLORADO, AND SOCIAL
SECURITY ADMINISTRATION, DENVER DISTRICT, DENVER, COLORADO, 6 FLRA NO.
110(1981). IN THE SUBJECT CASE, THE AUTHORITY FINDS THAT THE
RESPONDENT'S ISSUANCE OF THE JUNE 5, 1979, MEMORANDUM TO RATLIFF,
INFORMING HER THAT THE RESPONDENT WOULD ASK FOR HER RESIGNATION AS EEO
COUNSELOR SHOULD SHE PERFORM CERTAIN DUTIES AS UNION VICE-PRESIDENT, WAS
MERELY AN ADMONISHMENT TO RATLIFF NOT TO ENGAGE IN SPECIFIED FUTURE
CONDUCT WHICH WOULD CONSTITUTE A CONFLICT OR APPARENT CONFLICT OF
INTEREST UNDER SECTION 7120(E) OF THE STATUTE. THEREFORE, NOTING THE
ABSENCE OF EVIDENCE OF ANTI-UNION MOTIVATION AND THE FACT THAT
RESPONDENT DID NOT REQUEST OR REQUIRE RATLIFF TO RESIGN EITHER OF HER
POSITIONS, THE RESPONDENT BY ITS ACTIONS DID NOT INTERFERE WITH,
RESTRAIN OR COERCE RATLIFF IN THE EXERCISE OF HER RIGHTS AS ASSURED BY
SECTION 7102 OF THE STATUTE. ACCORDINGLY, THE AUTHORITY SHALL DISMISS
THE COMPLAINT. 3/3
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 7-CA-118 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ SECTION 7120(E) PROVIDES:
(E) THIS CHAPTER DOES NOT AUTHORIZE PARTICIPATION IN THE MANAGEMENT
OF A LABOR ORGANIZATION
OR ACTING AS A REPRESENTATIVE OF A LABOR ORGANIZATION . . . BY AN
EMPLOYEE IF THE
PARTICIPATION OR ACTIVITY WOULD RESULT IN A CONFLICT OR APPARENT
CONFLICT OF INTEREST OR WOULD
OTHERWISE BE INCOMPATIBLE WITH LAW OR WITH THE OFFICIAL DUTIES OF THE
EMPLOYEE.
/2/ IT WAS FURTHER STIPULATED THAT RESPONDENT NEVER REQUESTED OR
REQUIRED RATLIFF TO RESIGN EITHER HER POSITION AS EEO COUNSELOR OR HER
POSITION AS UNION VICE-PRESIDENT.
/3/ IN VIEW OF THIS DISPOSITION, THE AUTHORITY FINDS IT UNNECESSARY
TO RULE ON THE RESPONDENT'S MOTION TO DISMISS THE COMPLAINT, BASED ON
PROCEDURAL GROUNDS.
8 FLRA 8; FLRA 0-NG-354; FEBRUARY 4, 1982.
NATIONAL TREASURY EMPLOYEES UNION
AND NTEU CHAPTER 70
UNION
AND
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
ATLANTA SERVICE CENTER, GEORGIA
AGENCY
CASE NO. 0-NG-354
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE),
AND RAISES THE QUESTION OF THE NEGOTIABILITY OF FIVE UNION PROPOSALS
DEALING WITH THE AGENCY'S DECISION TO INSTITUTE A CARPOOL PROJECT.
UNION PROPOSAL 1
IF A SITUATION DEVELOPS AMONG CARPOOLERS IN WHICH CERTAIN MEMBERS OF
THE POOL ARE ADVISED
THAT DUE TO A LACK OF WORK ON A PARTICULAR DAY THEY MUST LEAVE WORK,
THE EMPLOYER WILL MAKE A
GOOD FAITH EFFORT TO FIND THE EMPLOYEE(S) ALTERNATIVE WORK TO PERFORM
FOR THE REMAINDER OF
THEIR SHIFT. IF ALTERNATIVE WORK CANNOT BE FOUND, MANAGEMENT WILL
PROVIDE THAT EMPLOYEE(S)
ALTERNATIVE TRANSPORTATION HOME.
UNION PROPOSAL 2
ACTUAL MILEAGE PER GALLON OF THE CAR UTILIZED SHOULD BE CONSIDERED IN
DETERMINING WHO
RECEIVES A RESERVED PARKING SPACE. PEOPLE WHO DRIVE CARS WITH EPA
MILEAGE RATINGS OF 25 MILES
PER GALLON OR MORE WILL BE ENTITLED TO A RESERVED PARKING SPACE
REGARDLESS OF WHETHER THEY
CARPOOL. HOWEVER, THESE INDIVIDUALS WILL ALSO BE ENCOURAGED TO
CARPOOL.
UNION PROPOSAL 3
PRIORITIES FOR RESERVED PARKING SPACES WILL BE ASSIGNED ACCORDING TO
THE FOLLOWING:
1. ACTUAL MILEAGE PER GALLON OF THE CAR UTILIZED SHOULD BE
CONSIDERED IN DETERMINING WHO
RECEIVES A RESERVED PARKING SPACE. PEOPLE WHO DRIVE CARS WITH EPA
MILEAGE RATINGS OF 25 MILES
PER GALLON OR MORE WILL BE ENTITLED TO A RESERVED PARKING SPACE
REGARDLESS OF WHETHER THEY
CARPOOL. HOWEVER, THESE INDIVIDUALS WILL ALSO BE ENCOURAGED TO
CARPOOL.
2. PRIORITY WILL BE GIVEN BASED ON THE NUMBER OF PEOPLE IN THE CAR
AND THE EPA MILEAGE PER
GALLON. THIS WILL BE DETERMINED BY CONSIDERING THE NUMBER OF
EMPLOYEES IN THE CARPOOL AND
DIVIDING THAT NUMBER BY THE EPA MILEAGE PER GALLON, TO DETERMINE THE
MILEAGE PER GALLON PER
INDIVIDUAL IN A CARPOOL. CARPOOLS WITH HIGHER MILEAGE PER GALLON PER
INDIVIDUAL WILL RECEIVE
PRIORITY OVER THOSE CARPOOLS WITH LESS MILEAGE PER INDIVIDUAL PER
GALLON. PRIORITY IS DEFINED
BY USING DISTANCE FROM THE BUILDING TO THE PARKING SPACE.
UNION PROPOSAL 4
IE: CARS GETTING EPA MILEAGE OF 25 MILES A GALLON OR MORE WILL BE
ASSIGNED TO RESERVED
SPACES CLOSEST TO BUILDING, THEN EPA MILEAGE AND NUMBER OF EMPLOYEES
IN CARPOOL WILL BE
ASSIGNED SPACES AFTER EPA MILEAGE OF 25 MILES OR MORE HAVE BEEN
ASSIGNED.
UNION PROPOSAL 5
PENALTIES IMPOSED BY THE CARPOOLING COMMITTEE REGARDING SUSPENSION OF
PARKING PRIVILEGES
WILL FIRST BE DISCUSSED WITH THE UNION.
UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
WITH RESPECT TO UNION PROPOSAL 1, A DISPUTE BETWEEN THE PARTIES EXISTS
AS A RESULT OF THE AGENCY'S CONTENTION THAT THE PROPOSAL DOES NOT DEAL
WITH MATTERS IMPACTED BY THE CARPOOL PROJECT. THUS, THE AUTHORITY FINDS
THAT THE DISPUTE WITH REGARD TO THIS PROPOSAL IS IMPROPERLY BEFORE US AS
A NEGOTIABILITY ISSUE TO BE RESOLVED PURSUANT TO SECTION 7117 OF THE
STATUTE. RATHER, IT SHOULD HAVE BEEN PROCESSED THROUGH THE UNFAIR LABOR
PRACTICE PROCEDURES OF THE STATUTE, SEE, E.G., AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1931 AND DEPARTMENT OF THE NAVY,
NAVAL WEAPONS STATION, CONCORD, CALIFORNIA, 2 FLRA 181(1979); NATIONAL
TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY, U.S. CUSTOMS
SERVICE, WASHINGTON, D.C., 3 FLRA 330(1980).
UNION PROPOSALS 2, 3 AND 4 PROVIDE THAT RESERVED PARKING WILL BE
ALLOCATED ON THE BASIS OF ONE CRITERION, THAT IS, THE EPA MILEAGE RATING
OF THE AUTOMOBILE INVOLVED. IN CONTRAST, GOVERNMENT-WIDE REGULATIONS,
NAMELY, OMB CIRCULAR A-118 AND FPMR TEMPORARY REGULATION D-65 /1/
ESTABLISH THAT PARKING WILL BE ASSIGNED IN PRIORITY ORDER TO HANDICAPPED
EMPLOYEES, TO EXECUTIVE PERSONNEL AND OTHER INDIVIDUALS ASSIGNED UNUSUAL
HOURS, TO VANPOOLS AND TO CARPOOLS BASED SOLELY ON THE NUMBER OF CARPOOL
MEMBERS. THUS, CONTRARY TO THE UNION'S CONTENTION THAT THE PROPOSALS
ONLY WOULD AUGMENT GOVERNMENT-WIDE REGULATIONS, PROPOSALS 2, 3 AND 4, AS
DRAFTED, CONFLICT WITH THE AFOREMENTIONED GOVERNMENT-WIDE REGULATIONS
AND, THEREFORE, ARE NOT WITHIN THE DUTY TO BARGAIN UNDER SECTION
7117(A)(1) OF THE STATUTE. /2/ SEE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2151 AND GENERAL SERVICES ADMINISTRATION,
NATIONAL CAPITAL REGION, WASHINGTON, D.C., 7 FLRA NO. 79(1982).
FINALLY, WITH REGARD TO UNION PROPOSAL 5, THE UNION SEEKS ONLY TO
NEGOTIATE THE RIGHT TO DISCUSS THE PENALTIES TO BE IMPOSED PRIOR TO THE
IMPOSITION OF SUCH PENALTIES. CONSEQUENTLY, THE PROPOSAL IS A
NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2) OF THE STATUTE /3/ WHICH
DOES NOT PREVENT THE AGENCY FROM ACTING AT ALL WITH RESPECT TO
DISCIPLINING EMPLOYEES /4/ OR LIMITING THE PENALITIES THE AGENCY MAY
IMPOSE UNDER APPLICABLE RULES AND REGULATIONS. NOR DOES THE PROPOSAL
REQUIRE THE AGENCY TO TAKE ANY ACTION INCONSISTENT WITH THE PRIVACY ACT,
5 U.S.C. 552A(1976), SINCE IT DOES NOT REQUIRE THE RELEASE OF NAMES OF
INVOLVED EMPLOYEES. THUS, CONTRARY TO THE AGENCY'S ASSERTIONS, THIS
PROPOSAL IS WITHIN THE DUTY TO BARGAIN.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE UNION'S
PETITION FOR REVIEW RELATING TO UNION PROPOSALS 1 THROUGH 4 BE, AND IT
HEREBY IS, DISMISSED. IT IS FURTHER ORDERED THAT THE AGENCY SHALL UPON
REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING
UNION PROPOSAL 5. /5/
ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1982
RONALD W.HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ PARAGRAPH 8 OF OMB CIRCULAR A-118 ADDRESSES THE ALLOCATION AND
ASSIGNMENT OF PARKING FACILITIES, AND STATES IN PART, THAT "(TO)
MAXIMIZE THE EFFICIENT UTILIZATION OF AVAILABLE PARKING SPACES,
ASSIGNMENTS OF SPACES TO FEDERAL EMPLOYEES SHALL BE ON THE BASIS OF THE
REGULATIONS PROMULGATED BY GSA (FPMR 101-20.111 AND 101-20.117), AS
AMENDED TO COMPLY WITH THIS CIRCULAR."
PARAGRAPH 8 OF GSA'S IMPLEMENTING REGULATION, FPMR TEMPORARY
REGULATION D-65, AS AMENDED, SETS FORTH CERTAIN PRIORITIES FOR THE
ASSIGNMENT OF PARKING SPACES TO EMPLOYEES. PARAGRAPH 8 STATES AS
FOLLOWS:
8. PRIORITIES FOR EMPLOYEE PARKING. AGENCIES SHALL ENCOURAGE THE
CONSERVATION OF ENERGY
BY TAKING POSITIVE ACTION TO INCREASE CARPOOLING.
A. ASSIGNMENT OF SPACES. IN MEETING THEIR RESPONSIBILITIES TO
PROMOTE CARPOOLING,
AGENCIES SHALL ASSIGN EMPLOYEE PARKING AS FOLLOWS:
(1) HANDICAPPED EMPLOYEES . . .
(2) A GOAL OF NOT MORE THAN 10 PERCENT OF THE TOTAL SPACES AVAILABLE
ON AN AGENCYWIDE BASIS
(EXCLUDING THE SPACES ASSIGNED TO SEVERELY HANDICAPPED EMPLOYEES) TO
EXECUTIVE PERSONNEL
AND/OR PERSONS WHO ARE ASSIGNED UNUSUAL HOURS. EXECUTIVE PERSONNEL
SHOULD MAKE EVERY EFFORT
TO CARPOOL.
(3) VANPOOLS.
(4) CARPOOLS BASED ON THE NUMBER OF MEMBERS.
/2/ SECTION 7117(A)(1) OF THE STATUTE PROVIDES AS FOLLOWS:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
(A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
BARGAIN IN GOOD FAITH
SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
GOVERNMENT-WIDE RULE OR
REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
REGULATION ONLY IF THE RULE
OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
/3/ SECTION 7106(B) PROVIDES, IN PERTINENT PART, AS FOLLOWS:
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM NEGOTIATING--
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION(.)
/4/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
1999 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT
DIX, NEW JERSEY, 2 FLRA 152(1979), ENFORCED SUB NOM. DEPARTMENT OF
DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, 659 F.2D 1140 (D.C. CIR.
1981).
/5/ IN FINDING UNION PROPOSAL 5 NEGOTIABLE, THE AUTHORITY MAKES NO
JUDGMENT AS TO ITS MERITS.
8 FLRA 7; FLRA 0-NG-298; FEBRUARY 4, 1982.
INTERNATIONAL ASSOCIATION
OF FIRE FIGHTERS, LOCAL F-109,
AFL-CIO
UNION
AND
DEPARTMENT OF THE ARMY,
HEADQUARTERS, CARLISLE BARRACKS,
CARLISLE, PENNSYLVANIA
AGENCY
CASE NO. 0-NG-298
DECISION AND ORDER ON NEGOTIABILITY ISSUE
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE),
AND RAISES THE QUESTION OF THE NEGOTIABILITY OF THE FOLLOWING UNION
PROPOSAL:
ARTICLE XIX WORK ASSIGNMENTS
SECTION 1 - THE EMPLOYER RECOGNIZING THE PRIMARY FUNCTIONS OF THE
FIRE DEPARTMENT WHICH ARE
FIRE PREVENTION, FIRE PROTECTION AND LIFE SAFETY.
SECTION 2 - THE EMPLOYER DETERMINING WORK SCHEDULES AND ASSIGNMENTS
WHEN REASONABLY USED
WITHIN POSITION AND CLASSIFICATION STANDARDS FOR FIRE FIGHTERS,
GS-081 SERIES, APRIL, 1976.
SECTION 3 - TEMPORARY DUTY ASSIGNMENTS NOT TO EXCEED 30 DAYS SUCH AS
ACTING DRIVER AND LEAD
FIRE FIGHTER-- SUCH ASSIGNMENTS WILL BE MADE ON A ROTATING BASIS
AMONG AVAILABLE CANDIDATES.
SECTION 4 - REPAIR, MAINTENANCE, REHABILITATION AND UPKEEP OF FIRE
PROTECTION QUARTERS AND
RELATED EQUIPMENT SHALL NOT BE THE DUTY OF UNIT EMPLOYEES. ALSO, THE
REMOVAL OF SNOW, EXCEPT
AROUND THE FIRE STATION, SHALL NOT BE THE DUTY OF UNIT EMPLOYEES.
UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
IN ACCORDANCE WITH THE LANGUAGE USED IN THE PROPOSAL ITSELF, /1/ THE
AUTHORITY CONCLUDES THAT THE ENTIRE PROPOSAL WOULD DIRECTLY INTERFERE
WITH MANAGEMENT'S RIGHT TO ASSIGN WORK BY REQUIRING THAT "WORK
ASSIGNMENTS" BE CONSISTENT WITH THE PRIMARY FUNCTIONS OF THE FIRE
DEPARTMENT AND/OR POSITION CLASSIFICATION STANDARDS FOR FIRE FIGHTERS;
REQUIRING ASSIGNMENT OF DUTIES ON A ROTATIONAL BASIS TO EMPLOYEES
AVAILABLE FOR THE ASSIGNMENT; AND PROHIBITING THE ASSIGNMENT OF
SPECIFIED DUTIES TO FIRE FIGHTERS. FOR THE REASONS STATED FULLY IN
INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-61 AND PHILADELPHIA
NAVAL SHIPYARD, 3 FLRA 438(1980); AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 695 AND DEPARTMENT OF THE TREASURY, U.S. MINT,
DENVER, COLORADO, 3 FLRA 43(1980); AND ASSOCIATION OF CIVILIAN
TECHNICIANS AND STATE OF GEORGIA NATIONAL GUARD, 2 FLRA 604(1980) THE
PROPOSAL IN THIS CASE MUST BE HELD TO BE INCONSISTENT WITH THE AGENCY'S
RIGHT "TO ASSIGN WORK" PURSUANT TO SECTION 7106(A)(2)(B) OF THE STATUTE
AND, THEREFORE, OUTSIDE THE AGENCY'S DUTY TO BARGAIN.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE UNION'S
PETITION FOR REVIEW BE, AND IT HEREBY IS, DISMISSED IN ITS ENTIRETY.
ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ THE UNION IN THIS CASE PROVIDED NO EXPLANATION OF THE INTENT OF
ITS PROPOSAL. IN THIS REGARD, UNIONS ARE REMINDED THAT PURSUANT TO
SECTION 2424.4(A)(2) OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
2424.4(A)(2)(1981)), WHICH SECTION BECAME EFFECTIVE SUBSEQUENT TO THE
FILING OF THE UNION'S PETITION IN THIS CASE, A PETITION FOR REVIEW OF A
NEGOTIABILITY ISSUE MUST CONTAIN "AN EXPLICIT STATEMENT OF THE MEANING
OF THE PROPOSAL BY THE EXCLUSIVE REPRESENTATIVE."
8 FLRA 6; FLRA 0-NG-263; FEBRUARY 4, 1982.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1533
UNION
AND
NAVAL SUPPLY CENTER
OAKLAND, CALIFORNIA
AGENCY
CASE NO. 0-NG-263
DECISION AND ORDER ON NEGOTIABILITY APPEAL
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE),
AND RAISES THE QUESTION OF THE NEGOTIABILITY OF A UNION PROPOSAL. UPON
CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES'
CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
UNION PROPOSAL
EMPLOYEE REPROMOTION AFTER REDUCTION-IN-FORCE. REPROMOTION WILL BE
IN RETENTION ORDER AND
WILL BE APPLIED AS VACANCIES OCCUR.
IN AGREEMENT WITH THE AGENCY, THE AUTHORITY CONCLUDES THAT THE
PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN BECAUSE IT WOULD DIRECTLY
INTERFERE WITH MANAGEMENT'S RIGHTS UNDER SECTION 7106(A)(2)(C) /1/ OF
THE STATUTE BY REQUIRING THE AGENCY TO SELECT REPROMOTION ELIGIBLE
EMPLOYEES IN RETENTION ORDER AFTER A REDUCTION-IN-FORCE AS VACANCIES
OCCUR. IN THIS REGARD, THE PROPOSAL BEARS NO MATERIAL DIFFERENCE FROM
THE PROPOSAL FOUND NONNEGOTIABLE PURSUANT TO SECTION 7106(A)(2)(C) IN
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2782 AND
DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS, WASHINGTON, D.C., 7 FLRA
NO. 13(1981), APPEAL DOCKETED, NO. 81-2386 (D.C. CIR. DEC. 29, 1981).
FOR THE REASONS FULLY SET FORTH THEREIN, THE PROPOSAL HERE IN DISPUTE
MUST LIKEWISE BE FOUND NONNEGOTIABLE. /2/
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE PETITION FOR
REVIEW BE, AND IT HEREBY IS, DISMISSED. /3/
ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ SECTION 7106(A)(2)(C) PROVIDES, IN RELEVANT PART, AS FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE
AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
(2) IN ACCORDANCE WITH APPLICABLE LAWS--
(C) WITH RESPECT TO FILLING POSITIONS, TO MAKE SELECTIONS FOR
APPOINTMENTS FROM--
(I) AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR PROMOTION; OR
(II) ANY OTHER APPROPRIATE SOURCE(.)
/2/ THE UNION CONTENDS, IN ESSENCE, THAT THE PROPOSAL WOULD NOT
RESTRICT MANAGEMENT'S RIGHT TO SELECT EMPLOYEES OR REQUIRE MANAGEMENT TO
FILL VACANCIES. THIS CONTENTION IS INCONSISTENT WITH THE EXPRESS
LANGUAGE OF THE PROPOSAL AND THEREFORE IS REJECTED. IN THIS REGARD, IT
IS NOTED THAT IF THE PROPOSAL WERE REVISED TO PERMIT MANAGEMENT TO
EXERCISE ITS RIGHTS UNDER SECTION 7106 AND TO SET FORTH A PROCEDURE
WHICH MANAGEMENT WOULD FOLLOW IN THE EXERCISE OF SUCH RIGHTS, SUCH A
PROPOSAL WOULD BE NEGOTIABLE UNDER SECTION 7106(B)(2) OF THE STATUTE.
SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999 AND
ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW
JERSEY, 2 FLRA 152(1979), ENFORCED SUB NOM. DEPARTMENT OF DEFENSE V.
FEDERAL LABOR RELATIONS AUTHORITY, 659 F.2D 1140 (D.C. CIR. 1981).
/3/ IN REACHING THE MERITS HEREIN, THE AUTHORITY CONCLUDES, CONTRARY
TO THE AGENCY'S CONTENTION, THAT THE AGENCY'S UNREQUESTED ALLEGATION
DOES NOT MAKE THIS PETITION FOR REVIEW UNTIMELY. SEE SECTION 2424.3 OF
THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.3). RATHER, THE
PETITION WAS TIMELY FILED, FOLLOWING THE UNION'S REQUEST FOR AN
ALLEGATION AND THE AGENCY'S RESPONSE THERETO. SEE AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3385 AND FEDERAL HOME LOAN BANK
BOARD, DISTRICT 7, CHICAGO, ILLINOIS, 7 FLRA NO. 58(1981).
8 FLRA 5; FLRA 0-NG-331; FEBRUARY 4, 1982.
NATIONAL TREASURY EMPLOYEES UNION
UNION
AND
INTERNAL REVENUE SERVICE
AGENCY
CASE NO. 0-NG-331
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE),
AND RAISES ISSUES CONCERNING THE NEGOTIABILITY OF THE FOLLOWING TWO
UNION PROPOSALS:
1. EVALUATIVE CONCLUSIONS BASED ON THE STATISTICAL DATA GENERATED BY
THE ROCKWELL-COLLINS
ACD-V SYSTEM MUST BE ACCOMPANIED BY EVIDENCE GATHERED BY OTHER
EVALUATIVE TECHNIQUES
I.E. OBSERVATION OF EMPLOYEE BEHAVIOR. THIS EVIDENCE MUST BE
SUFFICIENT TO LEAVE NO
REASONABLE DOUBT THAT THE STATISTICAL DATA DOES INDEED REPRESENT
INEFFICIENT OR IMPROPER
ACTIVITY BY THE EMPLOYEE.
2. EVALUATIVE CONCLUSIONS BASED ON THE STATISTICAL DATA GENERATED BY
THE DORMS SYSTEM MUST
BE ACCOMPANIED BY EVIDENCE GATHERED BY OTHER EVALUATIVE TECHNIQUES
I.E. OBSERVATION OF
EMPLOYEE BEHAVIOR. THIS OTHER EVIDENCE MUST BE SUFFICIENT TO LEAVE
NO REASONABLE DOUBT THAT
THE STATISTICAL DATA DOES INDEED REPRESENT INEFFICIENT OR IMPROPER
ACTIVITY BY THE EMPLOYEE.
UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
PARTIES' CONTENTIONS, /1/ THE AUTHORITY MAKES THE FOLLOWING
DETERMINATIONS.
THE RECORD INDICATES THAT THE DISPUTED PROPOSALS WERE SUBMITTED BY
THE UNION IN RESPONSE TO THE AGENCY'S NOTICE OF INTENT TO INITIATE A
TWO-YEAR TEST OF A WORK MEASUREMENT SYSTEM (DORMS) UNDER WHICH EMPLOYEES
ARE REQUIRED TO RECORD THE NUMBER OF HOURS DEVOTED TO A SPECIFIC
PROJECT; AND TO INSTALL A NEW SOFTWARE SYSTEM (ROCKWELL-COLLINS) WHICH
IS CAPABLE OF GATHERING CERTAIN DATA WITH RESPECT TO THE EMPLOYEES'
PERFORMANCE OF WORK-RELATED TELEPHONE COMMUNICATIONS.
IN NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY,
BUREAU OF THE PUBLIC DEBT, 3 FLRA 768(1980), APPEAL DOCKETED, NO.
80-1895 (D.C. CIR. AUG. 4, 1980), THE AUTHORITY FOUND THAT THE RIGHTS TO
DIRECT EMPLOYEES AND ASSIGN WORK UNDER SECTION 7106(A) OF THE STATUTE
INCLUDE THE AUTHORITY TO ESTABLISH CRITICAL ELEMENTS AND PERFORMANCE
STANDARDS. HOWEVER, AS THE AUTHORITY HAS CONSISTENTLY EMPHASIZED, AN
AGENCY HAS A DUTY TO BARGAIN UNDER SECTION 7106(B)(2) ON THE
"PROCEDURES" WHICH MANAGEMENT OFFICIALS WILL OBSERVE IN EXERCISING
SECTION 7106(A) RIGHTS EXCEPT TO THE EXTENT THAT THE AGENCY WOULD BE
PREVENTED FROM ACTING AT ALL. SEE, E.G., AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE
SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW JERSEY, 2 FLRA 152(1979),
ENFORCED SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS
AUTHORITY, 659 F.2D 1140 (D.C. CIR. 1981). ACCORDINGLY, TO THE EXTENT
CONSISTENT WITH LAW AND REGULATION, THE PROCEDURAL CONTEXT OF
PERFORMANCE EVALUATION IS SUBJECT TO BARGAINING. BUREAU OF THE PUBLIC
DEBT, SUPRA, AT 12 OF DECISION. SEE ALSO NATIONAL TREASURY EMPLOYEES
UNION AND DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, 7 FLRA
NO. 35(1981).
IN THE INSTANT CASE, THE AUTHORITY CONCLUDES THAT THE DISPUTED
PROPOSALS CONSTITUTE NEGOTIABLE PROCEDURES RELATED TO PERFORMANCE
EVALUATION. THUS, CONTRARY TO THE AGENCY'S CONTENTIONS, THE LANGUAGE OF
THE UNION'S PROPOSALS WOULD NEITHER PRECLUDE MANAGEMENT FROM USING THE
STATISTICAL DATA COLLECTED BY THE DORMS AND ROCKWELL-COLLINS SYSTEM NOR
INTERFERE WITH MANAGEMENT'S RIGHT TO TAKE PERSONNEL ACTIONS BASED ON
SUCH STATISTICAL DATA NOR INTERFERE IN ANY OTHER MANNER WITH
MANAGEMENT'S RIGHTS UNDER THE STATUTE. RATHER, CONSISTENT WITH THE
UNION'S DECLARED INTENT, THE DISPUTED PROPOSALS WOULD MERELY REQUIRE THE
AGENCY TO CONFIRM BY PERSONAL OBSERVATION THE VALIDITY OF THE
STATISTICAL DATA TO BE USED IN EVALUATING THE PERFORMANCE OF UNIT
EMPLOYEES ACCORDING TO THE CRITICAL ELEMENTS AND PERFORMANCE STANDARDS
PREVIOUSLY ESTABLISHED BY THE AGENCY. IN THIS REGARD, THE UNION STATES
AND THE AUTHORITY FINDS THAT THE PROPOSAL "DOES NOT SEEK TO MODIFY OR
CLARIFY THE QUANTUM OF PROOF THAT IS REQUIRED IN ADVERSE ACTIONS,
UNACCEPTABLE PERFORMANCE ACTIONS (5 U.S.C. 7701(C)) OR ANY OTHER
PERSONNEL ACTION." THEREFORE, THE PROPOSALS ARE WITHIN THE DUTY TO
BARGAIN.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE AGENCY SHALL
UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN
CONCERNING THE UNION PROPOSALS. /2/
ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ THE AGENCY'S REQUEST TO FILE A SUPPLEMENT TO ITS STATEMENT OF
POSITION IS DENIED PURSUANT TO SECTION 2424.8 OF THE AUTHORITY'S RULES
AND REGULATIONS (5 CFR 2424.8). THEREFORE, THE AUTHORITY HAS NOT
CONSIDERED SUCH SUPPLEMENT.
/2/ IN DECIDING THAT THE SUBJECT PROPOSALS ARE WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THEIR MERITS.
8 FLRA 4; FLRA 3-UC-10; FEBRUARY 4, 1982.
DEPARTMENT OF THE NAVY
U.S. MARINE CORPS
AGENCY
AND
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
PETITIONER
CASE NO. 3-UC-10
DECISION AND DIRECTION OF ELECTION
UPON A PETITION DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
UNDER SECTION 7112(D) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE, (THE STATUTE), A HEARING WAS HELD BEFORE A HEARING OFFICER OF
THE AUTHORITY. THE AUTHORITY HAS REVIEWED THE HEARING OFFICER'S RULINGS
MADE AT THE HEARING AND FINDS THAT THEY ARE FREE FROM PREJUDICIAL ERROR.
THE RULINGS ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING A BRIEF FILED BY THE
AGENCY, THE AUTHORITY FINDS:
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (PETITIONER) FILED
THE INSTANT PETITION SEEKING TO CONSOLIDATE 22 UNITS WITHIN THE U.S.
MARINE CORPS (AGENCY) FOR WHICH IT IS THE EXCLUSIVE REPRESENTATIVE.
(THE UNITS ARE SET FORTH IN APPENDIX A.)
THE AGENCY CONTENDS THAT THE PROPOSED CONSOLIDATION, WHICH WOULD
AFFECT 16 OF ITS FIELD ACTIVITIES, IS NOT APPROPRIATE FOR PURPOSES OF
RECOGNITION BECAUSE IT DOES NOT MEET THE CRITERIA FOR APPROPRIATENESS OF
UNIT SET FORTH IN SECTION 7112(A)(1) OF THE STATUTE. /1/ SPECIFICALLY,
THE AGENCY ARGUES THAT THE MISSIONS AND FUNCTIONS OF THE VARIOUS FIELD
ACTIVITIES INVOLVED ARE SUFFICIENTLY DIFFERENT AS TO WORK AGAINST A
FINDING OF COMMONALITY. IN THIS REGARD, THE AGENCY FURTHER ARGUES THAT
GIVEN DIFFERENCES IN FUNCTIONS AND DIFFERENCES IN STAFFING PATTERNS AT
THE VARIOUS FIELD ACTIVITIES A CONCLUSION MUST BE DRAWN THAT THE ACTUAL
DUTIES OF EMPLOYEES AT THE VARIOUS FACILITIES DIFFER MATERIALLY. /2/ AS
TO WORKING CONDITIONS, THE AGENCY ARGUES THAT GIVEN THE WIDE VARIANCE IN
THE LOCATIONS AND CIRCUMSTANCES SURROUNDING THE FIELD ACTIVITIES,
SIMILARITIES ARE MINIMIZED AND DO NOT SUPPORT A CONCLUSION THAT
COMMONALITY EXISTS. WITH RESPECT TO PROMOTION OF EFFECTIVE DEALINGS,
THE AGENCY CONTENDS THAT THE PROPOSED CONSOLIDATION WOULD NOT SERVE SUCH
A PURPOSE IN THAT IT WOULD NOT BROADEN THE SCOPE OF BARGAINING AND, IN
THE ABSENCE OF AN EXISTING CENTRAL LABOR RELATIONS STAFF AT THE MARINE
CORPS HEADQUARTERS, NO FOCUS EXISTS FOR ADMINISTRATION OF SUCH A
RELATIONSHIP. THE AGENCY CITES THIS LATTER FACTOR IN CONJUNCTION WITH A
DECENTRALIZATION POLICY INVOLVING BROAD DELEGATION OF AUTHORITY AND
RESPONSIBILITY TO THE FIELD ACTIVITY COMMANDERS AS SUPPORTING A
CONCLUSION THAT THE PROPOSED CONSOLIDATION WOULD BEAR NO RATIONAL
RELATIONSHIP TO THE ORGANIZATIONAL AND OPERATIONAL STRUCTURE OF THE
MARINE CORPS AND CONTENDS THAT THE PROPOSED CONSOLIDATION WOULD NOT
PROMOTE EFFICIENCY OF OPERATIONS ON THE PART OF THE MARINE CORPS.
ALTHOUGH IT FILED NO BRIEF, THE PETITIONER TOOK THE POSITION AT THE
HEARING THAT THE PROPOSED CONSOLIDATED UNIT WAS AN APPROPRIATE ONE IN
THAT IT MET THE CRITERIA SET FORTH IN SECTION 7112(A)(1) OF THE STATUTE.
(SEE NOTE 1, SUPRA.)
FACTS
THE MISSION AND FUNCTION OF THE MARINE CORPS RELATE TO THE
DEVELOPMENT AND MAINTENANCE OF A FORCE-IN-READINESS FOR THE CONDUCT OF
AMPHIBIOUS MILITARY OPERATIONS. MORE SPECIFICALLY, THE PRIMARY MISSION
OF THE MARINE CORPS IS TO PROVIDE FLEET MARINE FORCES OF COMBINED ARMS,
TOGETHER WITH SUPPORTING AIR COMPONENTS, FOR THE SEIZURE OR DEFENSE OF
ADVANCE NAVAL BASES AND THE CONDUCT OF LAND OPERATIONS ESSENTIAL TO A
NAVAL CAMPAIGN. COLLATERAL MISSIONS ARE TO PROVIDE DETACHMENTS AND
ORGANIZATIONS FOR SERVICE ON ARMED VESSELS OF THE NAVY AND TO PROVIDE
SECURITY DETACHMENTS FOR THE PROTECTION OF NAVAL PROPERTY AT NAVAL
STATIONS AND BASES. THE MARINE CORPS IS ALSO RESPONSIBLE FOR
DEVELOPING, IN COORDINATION WITH THE OTHER SERVICES, THE TACTICS,
TECHNIQUES, AND EQUIPMENT FOR LANDING FORCES IN AMPHIBIOUS OPERATIONS.
ANOTHER MISSION IS TO PREPARE FOR WARTIME EXPANSION, IN ACCORDANCE WITH
JOINT MOBILIZATION PLANS, WHICH MAY REQUIRE ACTIVATION OF RESERVE FORCES
WHEN NECESSARY.
THE MARINE CORPS IS A SEPARATE SERVICE WITHIN THE DEPARTMENT OF THE
NAVY. IT IS HEADED BY THE COMMANDANT OF THE MARINE CORPS WHO IS A
MEMBER OF THE JOINT CHIEFS OF STAFF. THE AUTHORITY OF THE COMMANDANT
FLOWS FROM THE REASSIGNMENT AND DELEGATION OF AUTHORITY VESTED IN THE
SECRETARY OF THE NAVY TO WHOM THE COMMANDANT REPORTS DIRECTLY. THE
RECORD INDICATES THAT THE MARINE CORPS HAS FOUR PRINCIPAL COMPONENTS:
HEADQUARTERS, OPERATING FORCES, SUPPORTING ESTABLISHMENT AND MARINE
CORPS RESERVES. THE MISSION AND FUNCTIONS OF THE OPERATING FORCES
RELATE DIRECTLY TO THE MILITARY MISSION OF THE MARINE CORPS. THE OTHER
COMPONENTS EXIST TO SUPPORT THAT ELEMENT. IN THIS REGARD, HEADQUARTERS
CONSISTS OF THE COMMANDANT AND THOSE STAFF AGENCIES WHICH ADVISE AND
ASSIST HIM IN THE DISCHARGE OF HIS RESPONSIBILITY FOR THE TOTAL
PERFORMANCE OF THE MARINE CORPS. THE MARINE CORPS RESERVE IS
RESPONSIBLE FOR PROVIDING TRAINED AND QUALIFIED UNITS AND INDIVIDUALS TO
BE AVAILABLE FOR ACTIVE DUTY AS MAY BE REQUIRED. THE SUPPORTING
ESTABLISHMENT, WHICH IS COMPOSED OF MILITARY AND CIVILIAN PERSONNEL,
PROVIDES THE DEVELOPMENT, PROCUREMENT, TRAINING, ADMINISTRATION, AND
LOGISTICAL SUPPORT REQUIRED TO PERFORM THE MISSION OF THE MARINE CORPS.
THE UNITS WHICH THE PETITIONER SEEKS TO CONSOLIDATE CONSIST OF
APPROPRIATED FUND EMPLOYEES ASSIGNED TO THE SUPPORTING ESTABLISHMENT.
THAT ORGANIZATIONAL ELEMENT INCLUDES THE FOLLOWING:
1. MARINE CORPS BASES, CAMPS AND UNIT TRAINING CENTERS.
2. MARINE CORPS AVIATION INSTALLATIONS.
3. MARINE CORPS LOGISTICS INSTALLATIONS.
4. MARINE CORPS INDIVIDUAL TRAINING INSTALLATIONS.
5. MARINE CORPS RECRUITING ACTIVITIES.
6. MARINE CORPS RESERVE SUPPORT ACTIVITIES.
7. SPECIAL SUPPORTING ACTIVITIES.
MARINE CORPS BASES, CAMPS AND UNIT TRAINING CENTERS ARE ORGANIZED TO
SUPPORT AND CONTRIBUTE TO THE READINESS OF THE FLEET MARINE FORCES UNITS
OR OTHER UNITS BASED THEREON. THEY PROVIDE HOUSING, TRAINING
FACILITIES, LOGISTICAL SUPPORT, ADMINISTRATIVE SUPPORT, RESEARCH AND
DEVELOPMENT SUPPORT AND OTHER SUPPORT AS DIRECTED BY THEIR INDIVIDUAL
MISSION ASSIGNMENTS. INVOLVED IN THE INSTANT PETITION ARE EMPLOYEES AT
THE MARINE CORPS BASE, CAMP LEJEUNE (NORTH CAROLINA); THE MARINE CORPS
AIR GROUND COMBAT CENTER (FORMERLY THE MARINE CORPS BASE), TWENTY-NINE
PALMS (CALIFORNIA); AND THE MARINE CORPS BASE, CAMP SMEDLEY D. BUTLER
(OKINAWA, JAPAN).
MARINE CORPS AVIATION INSTALLATIONS SUPPORT AND CONTRIBUTE TO THE
READINESS OF FLEET MARINE FORCE UNITS OR OTHER UNITS, INCLUDING NAVY
AVIATION UNITS, BASED THEREON. COVERED UNDER THE INSTANT PETITION ARE
EMPLOYEES AT THE MARINE CORPS AIR STATION, BEAUFORT (SOUTH CAROLINA);
THE MARINE CORPS AIR STATION, CHERRY POINT (NORTH CAROLINA); THE MARINE
CORPS AIR STATION, EL TORO (CALIFORNIA); THE MARINE CORPS AIR STATION,
KANEOHE BAY (HAWAII); THE MARINE CORPS AIR STATION (HELICOPTER), NEW
RIVER (NORTH CAROLINA); AND THE MARINE CORPS AIR STATION (HELICOPTER),
TUSTIN, ALSO REFERRED TO AS SANTA ANA (CALIFORNIA). THE FIRST FOUR
ACTIVITIES ARE ALSO SPECIFICALLY ASSIGNED RESPONSIBILITY FOR THE
MAINTENANCE AND OPERATION OF THE FACILITIES INVOLVED. NEW RIVER IS
SUPPORTED, IN THIS RESPECT, BY CAMP LEJEUNE AND TUSTIN IS SUPPORTED BY
EL TORO.
MARINE CORPS LOGISTICS BASES HAVE AS THEIR PRIMARY RESPONSIBILITY THE
ACQUISITION, STORAGE, MAINTENANCE, DISTRIBUTION AND DISPOSAL OF
MATERIEL. INVOLVED IN THE INSTANT PETITION ARE EMPLOYEES AT THE MARINE
CORPS LOGISTICS BASE, ALBANY (GEORGIA) AND THE MARINE CORPS LOGISTICS
BASE, BARSTOW (CALIFORNIA).
THE MARINE CORPS INDIVIDUAL TRAINING INSTALLATIONS ARE RESPONSIBLE
FOR TRAINING MARINE CORPS PERSONNEL. INCLUDED IN THE PROPOSED
CONSOLIDATED UNIT ARE EMPLOYEES AT THE MARINE CORPS DEVELOPMENT AND
EDUCATION COMMAND, QUANTICO (VIRGINIA); THE MARINE CORPS RECRUIT DEPOT,
PARRIS ISLAND (SOUTH CAROLINA); AND THE MARINE CORPS RECRUIT DEPOT, SAN
DIEGO (CALIFORNIA). QUANTICO ALSO HAS A RESEARCH AND DEVELOPMENT
FUNCTION AND, IN ADDITION, HAS AN AIR FACILITY UNDER ITS COMMAND.
THE MARINE CORPS RECRUITING ACTIVITIES ARE OVERSEEN BY THE RECRUIT
DEPOTS AND ARE INVOLVED WITH THE PROCUREMENT OF MILITARY PERSONNEL FOR
THE REGULAR AND RESERVE COMPONENTS OF THE MARINE CORPS. COVERED BY THE
INSTANT PETITION ARE EMPLOYEES OF THE 4TH MARINE CORPS DISTRICT,
PHILADELPHIA (PENNSYLVANIA), WHICH IS ONE OF SIX SUCH DISTRICTS.
THE MARINE CORPS RESERVE SUPPORT ACTIVITIES ARE RESPONSIBLE FOR
ADMINISTERING, TRAINING, AND OTHERWISE SUPPORTING THE MARINE CORPS
RESERVE. NONE OF THE PETITIONED FOR ACTIVITIES AND INSTALLATIONS FALL
DIRECTLY INTO THIS CATEGORY. /3/ NOTWITHSTANDING THE FACT THAT NO
ACTIVITY IN THE PETITIONED FOR UNIT FALLS DIRECTLY INTO THIS CATEGORY,
SOME OF THE ACTIVITIES INVOLVED IN THE PETITIONED FOR UNIT (E.G., THE
MARINE DISTRICTS AND MARINE CORPS FINANCE CENTER) HAVE, AS COLLATERAL
FUNCTIONS, RESPONSIBILITY FOR PROVIDING SUPPORT TO THE MARINE CORPS
RESERVE.
SPECIAL SUPPORTING ACTIVITIES, AS THE CATEGORY IMPLIES, ARE CERTAIN
ACTIVITIES NOT TYPICAL OF THE TYPE FOUND IN THE SUPPORTING
ESTABLISHMENT, BUT NEVERTHELESS ARE ORGANIZATIONALLY A PART OF THE
ESTABLISHMENT. THE MARINE CORPS FINANCE CENTER, KANSAS CITY (MISSOURI),
DESCRIBED AS THE CENTRAL PAY OFFICE FOR THE MARINE CORPS AND THE MARINE
CORPS RESERVE, IS RESPONSIBLE FOR COMMANDING, COORDINATING AND
SUPERVISING THE DISBURSEMENT OF FUNDS IN PAYMENT OF ALL MILITARY
ALLOTMENTS, ANNUITIES AND PAYROLLS, AND PAYMENT OF PUBLIC BILLS AND
CIVILIAN PAYROLLS IN ASSIGNED AREAS. THE MARINE CORPS AUTOMATED
SERVICES CENTER, KANSAS CITY, IS RESPONSIBLE FOR PERFORMING DATA
PROCESSING IN SUPPORT OF MARINE CORPS CENTRALLY CONTROLLED AUTOMATED
DATA SYSTEMS. AS A SECONDARY FUNCTION IT PROVIDES DATA PROCESSING
SUPPORT TO THE OPERATING FORCES AND THE SUPPORTING ESTABLISHMENT.
THE COMMANDERS OF THE MAJOR FIELD ACTIVITIES, WHICH CONSTITUTE THE
SUPPORTING ESTABLISHMENT, REPORT DIRECTLY TO THE COMMANDANT WITH NO
INTERVENING LEVEL OF AUTHORITY. OF THE APPROXIMATELY 16,000 CIVILIAN
EMPLOYEES ASSIGNED TO THE SUPPORTING ESTABLISHMENT WHO ARE PAID FROM
APPROPRIATED FUNDS, APPROXIMATELY 12,000 ARE INCLUDED IN UNITS OF
RECOGNITION. OF THESE, 9,000 TO 10,000 ARE INCLUDED IN THE PROPOSED
CONSOLIDATED UNIT. THE CIVILIANS FALL INTO A VARIETY OF POSITIONS IN
THE CLERICAL, ADMINISTRATIVE, TECHNICAL, CRAFT AND LABORER CATEGORIES.
THE DEGREE OF SIMILARITY AMONG THE EMPLOYMENT COMPLEMENTS ASSIGNED TO
THE VARIOUS INSTALLATIONS IS, TO SOME EXTENT, DEPENDENT UPON THE
SPECIFIC NATURE OF THE INSTALLATIONS (I.E., AIR STATION, BASE, TRAINING
CENTER, ETC.) AND WHETHER THE PARTICULAR ACTIVITY HAS ACTUAL
RESPONSIBILITY FOR THE MAINTENANCE AND OPERATION OF THE PHYSICAL AREA
AND FACILITIES WHICH CONSTITUTE THE PARTICULAR INSTALLATION. IN THIS
REGARD THE STAFFING PATTERNS OF THOSE ACTIVITIES WHICH ARE MOST ALIKE IN
TERMS OF SPECIFIC FUNCTIONS ARE THE MOST SIMILAR. THERE IS A
SIGNIFICANT DEGREE OF COMMONALITY WITH RESPECT TO THE PARTICULAR TYPES
OF EMPLOYEES FOUND THROUGHOUT THE PROPOSED UNIT, AND THERE IS SOME
TRANSFER (NOT SIGNIFICANT) OF EMPLOYEES BETWEEN MARINE CORPS ACTIVITIES.
THE ACTIVITIES WHICH CONSTITUTE THE SUPPORTING ESTABLISHMENT ARE
GENERALLY LOCATED IN THE SOUTHERN HALF OF THE CONTINENTAL UNITED STATES
AND THE PACIFIC. THOSE ON THE CONTINENTAL U.S. TEND TO BE CONCENTRATED
IN OR NEAR THE COASTAL AREAS. THEIR LOCATIONS RANGE FROM LARGE URBAN
AREAS TO REMOTE AND/OR RURAL AREAS. THEIR PHYSICAL ENVIRONMENT RANGES
FROM SPACE LEASED FROM THE GENERAL SERVICES ADMINISTRATION (GSA) TO A
BASE APPROACHING 100,000 ACRES IN SIZE. SOME ARE SUBJECT TO RELATIVELY
MODERATE CLIMATIC CONDITIONS AND OTHERS MUST CONTEND WITH SEVERE DESERT
HEAT IN THE SUMMER. THE SAME CHARACTERISTICS APPLY TO THE ACTIVITIES
INVOLVED IN THE PROPOSED CONSOLIDATED UNIT.
THE CIVILIAN PERSONNEL PROGRAM OF THE MARINE CORPS IS GOVERNED BY THE
POLICIES, RULES AND REGULATIONS ESTABLISHED BY THE OFFICE OF PERSONNEL
MANAGEMENT, DEPARTMENT OF DEFENSE AND DEPARTMENT OF THE NAVY. THE
COMMANDANT'S ROLE WITH RESPECT TO PERSONNEL IS TO OVERSEE THE
IMPLEMENTATION OF CIVILIAN PERSONNEL POLICIES ESTABLISHED BY THE
DEPARTMENT OF THE NAVY AND HIGHER LEVELS. ALL PERSONNEL POLICIES UNDER
WHICH THE MARINE CORPS OPERATES ARE INITIATED AT A HIGHER LEVEL THAN THE
MARINE CORPS. THE CIVILIAN PERSONNEL PROGRAM SECTION AT HEADQUARTERS,
MARINE CORPS, IS RESPONSIBLE FOR PROVIDING STAFF ASSISTANCE TO THE
COMMANDANT IN HIS ROLE OF IMPLEMENTING PERSONNEL POLICIES. IT PROVIDES
ADVISORY SERVICE TO AND PARTICIPATES IN REVIEW OF THE FIELD ACTIVITIES
BUT HAS NO LINE AUTHORITY OVER THE ACTIVITY CIVILIAN PERSONNEL OFFICES
WHICH, INSTEAD, REPORT TO THE ACTIVITY COMMANDING OFFICER.
WITH RESPECT TO LABOR RELATIONS, THE RECORD REVEALS THAT, WHILE THERE
ARE LABOR RELATIONS STAFFS AT SOME FIELD ACTIVITIES, THERE IS NONE AT
MARINE CORPS HEADQUARTERS. RATHER, THE MARINE CORPS COMMANDANT RELIES
ON THE DEPARTMENT OF THE NAVY'S OFFICE OF ASSISTANT DEPUTY OF NAVAL
OPERATIONS FOR CIVILIAN PERSONNEL AND EEO (OP-14) FOR LABOR RELATIONS
ADVICE AND CENTRALIZED FUNCTIONS AND MARINE CORPS FIELD ACTIVITIES
GENERALLY DEAL DIRECTLY WITH OP-14 IN LABOR RELATIONS MATTERS. OP-14
PROVIDES REPRESENTATION IN ALL THIRD PARTY PROCEEDINGS THROUGHOUT THE
DEPARTMENT OF THE NAVY (INCLUDING THE MARINE CORPS); IT IS RESPONSIBLE
FOR REVIEWING ALL NEGOTIATED AGREEMENTS AND IS RESPONSIBLE FOR PROVIDING
TRAINING, ADVICE AND ASSISTANCE IN THE LABOR RELATIONS AREA.
INSOFAR AS BARGAINING HISTORY IS CONCERNED, CONTRACTS HAVE BEEN
NEGOTIATED AT THE LOCAL LEVEL. MANAGEMENT BARGAINING TEAMS IN THE PAST
HAVE CONSISTED OF LOCAL ACTIVITY REPRESENTATIVES AND UNION TEAMS HAVE
BEEN SIMILARLY COMPOSED, ALTHOUGH IN A NUMBER OF INSTANCES A NATIONAL
REPRESENTATIVE FROM THE UNION HAS PARTICIPATED. HOWEVER, PURSUANT TO A
DEPARTMENT OF THE NAVY REQUIREMENT, ACTIVITY CHIEF NEGOTIATORS MUST HAVE
HAD TRAINING IN CONTRACT NEGOTIATIONS (OP-14 OFFERS 4 SUCH COURSES PER
YEAR) AND OP-14 MUST BE NOTIFIED AND CONSULTED ON ANY POTENTIAL
DECLARATIONS OF NONNEGOTIABILITY. MOREOVER, OP-14 REVIEWS AND APPROVES
ALL CONTRACTS ON BEHALF OF THE COMMANDANT AND THE SECRETARY OF THE NAVY.
DURING THE CONDUCT OF BARGAINING RELATIONSHIPS, OP-14 MUST APPROVE ANY
APPEALS UNDERTAKEN TO ARBITRATORS' AWARDS AND IT MUST BE NOTIFIED OF ANY
UNFAIR LABOR PRACTICE CHARGES FILED, AND, UPON NOTIFICATION, REPRESENTS
THE ACTIVITY INVOLVED. ALSO, THE RECORD REVEALS THAT THE LOCAL
ACTIVITIES HAVE SOUGHT ADVICE AND ASSISTANCE FROM OP-14 ON VARIOUS
MATTERS RELATING TO THE BARGAINING RELATIONSHIP (FOR EXAMPLE, ONE
ACTIVITY - QUANTICO - RELIED UPON OP-14 FOR ASSISTANCE IN RESEARCHING
AND ANALYZING CONTRACT PROPOSALS IN PREPARATION FOR NEGOTIATIONS).
DISCUSSION
IN DEPARTMENT OF TRANSPORTATION, 5 FLRA NO. 89(1981), THE AUTHORITY
NOTED THAT SECTION 7112(A)(1) OF THE STATUTE REQUIRES THAT ANY UNIT
FOUND APPROPRIATE MUST CONFORM TO THE THREE CRITERIA ESTABLISHED BY THAT
SECTION-- A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AMONG THE
EMPLOYEES IN THE UNIT, THE PROMOTION OF EFFECTIVE DEALINGS WITH, AND THE
EFFICIENCY OF THE OPERATIONS OF, THE AGENCY INVOLVED. THE AUTHORITY
FURTHER NOTED THAT SECTION 7112(D), /4/ WHICH PROVIDES FOR THE
CONSOLIDATION OF EXISTING UNITS INTO A SINGLE MORE COMPREHENSIVE UNIT,
REQUIRES THAT SUCH CONSOLIDATED UNIT MUST MEET THE SAME THREE CRITERIA
REQUIRED OF ANY UNIT FOUND APPROPRIATE.
IN ADDITION TO DEPARTMENT OF TRANSPORTATION, THE AUTHORITY HAS ISSUED
TWO OTHER DECISIONS INVOLVING THE CONSOLIDATION OF UNITS UNDER THE
STATUTE. IN ONE THE AUTHORITY FOUND THE PROPOSED UNIT APPROPRIATE FOR
CONSOLIDATION (ARMY AND AIR FORCE EXCHANGE SERVICE, DALLAS, TEXAS, 5
FLRA NO. 90(1981)), AND IN THE OTHER IT FOUND THE PROPOSED UNIT
INAPPROPRIATE (DEPARTMENT OF DEFENSE, U.S. ARMY CORPS OF ENGINEERS, 5
FLRA NO. 91(1981)). IN MAKING ITS DETERMINATIONS ON THE APPROPRIATENESS
OF THE PROPOSED CONSOLIDATED UNITS, THE AUTHORITY CONSIDERED SEVERAL
FACTORS. PRIMARY AMONG THEM WERE: THE DEGREE OF COMMONALITY AND
INTEGRATION OF THE MISSION AND FUNCTION OF THE COMPONENTS INVOLVED; THE
DISTRIBUTION OF THE EMPLOYEES INVOLVED THROUGHOUT THE ORGANIZATIONAL AND
GEOGRAPHICAL COMPONENTS OF THE AGENCY; THE DEGREE OF SIMILARITY IN THE
OCCUPATIONAL UNDERTAKINGS OF THE EMPLOYEES IN THE PROPOSED UNIT; AND
THE LOCUS AND SCOPE OF PERSONNEL AND LABOR RELATIONS AUTHORITY AND
FUNCTIONS.
THE AUTHORITY FINDS THAT THE EMPLOYEES IN THE PROPOSED CONSOLIDATED
UNIT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST. THE MISSION
OF THE MARINE CORPS IS OF A UNIFIED, INTEGRATED NATURE IN THAT IT IS
ESSENTIALLY THE DEVELOPMENT AND MAINTENANCE OF MILITARY FORCES FOR THE
PURPOSES OF SECURITY AND THE CONDUCT OF AMPHIBIOUS MILITARY OPERATIONS.
THE SUPPORTING ESTABLISHMENT IS CHARGED WITH PROVIDING SUPPORT FOR THE
ACCOMPLISHMENT OF THAT MISSION. HENCE, THE EMPLOYEES IN THE PROPOSED
CONSOLIDATED UNIT ARE INVOLVED IN A COMMON MISSION. MOREOVER, IN THE
PURSUIT OF THIS MISSION THE VARIOUS ACTIVITIES INVOLVED IN THE PROPOSED
CONSOLIDATED UNIT BEAR A RELATIONSHIP IN THAT THEY PERFORM SIMILAR OR
SUPPORTIVE FUNCTIONS. FOR EXAMPLE, THE MARINE CORPS FINANCE CENTER
PERFORMS A PAYROLL FUNCTION WHICH WOULD BENEFIT MARINE CORPS PERSONNEL
STATIONED THROUGHOUT THE ACTIVITIES IN THE PROPOSED UNITS AND THE
DOCTRINE, TACTICS, TECHNIQUES AND EQUIPMENT DEVELOPED AT QUANTICO ARE
UTILIZED BY OTHER ACTIVITIES IN THE PROPOSED UNIT. THUS, IN ADDITION TO
EXISTENCE OF A COMMON MISSION THERE EXISTS A SUBSTANTIAL DEGREE OF
FUNCTIONAL INTEGRATION THROUGHOUT THE SUPPORTING ESTABLISHMENT.
(COMPARE ARMY CORPS OF ENGINEERS, SUPRA, WHEREIN THE AUTHORITY FOUND
THAT THE ACTIVITIES INVOLVED IN THE PROPOSED CONSOLIDATED UNIT POSSESSED
A WIDE DIVERSION OF DISPARATE MISSIONS.)
MOREOVER, THE AUTHORITY FINDS THAT THE EMPLOYEES IN THE PROPOSED UNIT
ARE SUFFICIENTLY WELL DISTRIBUTED THROUGHOUT THE ORGANIZATIONAL ELEMENTS
WHICH MAKE UP THE SUPPORTING ESTABLISHMENT AND THAT THEIR GEOGRAPHIC
DISTRIBUTION SUFFICIENTLY REFLECTS THAT OF THE SUPPORTING ESTABLISHMENT
SO AS TO CONSTITUTE A MEANINGFUL CONSOLIDATED UNIT OF ALL MARINE CORPS
EMPLOYEES WHO ARE REPRESENTED BY THE PETITIONER. IN THIS REGARD,
EMPLOYEES FROM EACH OF THE MAJOR TYPES OF INSTALLATIONS WHICH MAKE UP
THE SUPPORTING ESTABLISHMENT (I.E., BASES, AVIATION INSTALLATIONS,
LOGISTICS BASES, TRAINING CENTERS, RECRUITING ACTIVITIES AND
MISCELLANEOUS ACTIVITIES) ARE INCLUDED AND THEY ARE DISTRIBUTED THROUGH
THE SAME GEOGRAPHICAL AREAS (I.E., SOUTHEASTERN AND SOUTHWESTERN UNITED
STATES AND PACIFIC AREA), AND IN A SIMILAR FASHION, AS THE SUPPORTING
ESTABLISHMENT IN TOTO. (COMPARE ARMY CORPS OF ENGINEERS, ID., WHEREIN
THE AUTHORITY FOUND THAT THE EMPLOYEES IN THE PROPOSED CONSOLIDATED UNIT
WERE NOT SUFFICIENTLY WELL DISTRIBUTED THROUGHOUT THE ADMINISTRATIVE AND
GEOGRAPHICAL STRUCTURE OF THE AGENCY SO AS TO CONSTITUTE A MEANINGFUL
CONSOLIDATED UNIT.) THEY ARE IN JOB CLASSIFICATIONS WHICH REFLECT THOSE
OF THE ORGANIZATION AS A WHOLE AND, TO A SIGNIFICANT DEGREE, ARE ENGAGED
IN SIMILAR OCCUPATIONAL UNDERTAKINGS. (COMPARE ARMY CORPS OF ENGINEERS,
ID., WHEREIN THE AUTHORITY FOUND A COMPLETE LACK OF COMMONALITY OF JOB
CLASSIFICATIONS.) THEY ARE UNDER THE COMMON, OVERALL SUPERVISION OF THE
COMMANDANT OF THE MARINE CORPS AND ARE SUBJECT TO SIMILAR PERSONNEL
POLICIES AS PROMULGATED BY THE DEPARTMENT OF THE NAVY AND IMPLEMENTED BY
THE COMMANDANT. BASED ON THE FOREGOING THE AUTHORITY CONCLUDES THAT THE
PROPOSED CONSOLIDATED UNIT WILL ENSURE A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST AMONG THE EMPLOYEES WHO WILL BE INCLUDED IN THE
PROPOSED CONSOLIDATED UNIT.
IN REGARD TO WHETHER THE PETITIONED FOR CONSOLIDATED UNIT WOULD
PROMOTE EFFECTIVE DEALINGS WITH, AND EFFICIENCY OF OPERATIONS OF, THE
AGENCY, THE AUTHORITY NOTES THAT WHILE PERSONNEL AND LABOR RELATIONS
ACTIVITES HAVE, FOR THE MOST PART, BEEN CONDUCTED AT THE LOCAL LEVEL,
THE COMMANDANT RETAINS ULTIMATE AUTHORITY AND RESPONSIBILITY. MOREOVER,
DESPITE THE FACT THAT CONTRACTS HAVE BEEN NEGOTIATED AT THE LOCAL LEVEL,
THE COMMANDANT HAS RETAINED AND EXERCISED APPROVAL AUTHORITY OVER THEM.
ALTHOUGH THE COMMANDANT DOES NOT HAVE ON HIS IMMEDIATE STAFF ANYONE WITH
LABOR RELATIONS EXPERTISE, HE HAS ACCESS TO A STAFF WITHIN THE
DEPARTMENT OF THE NAVY WHICH IS CHARGED WITH PROVIDING GUIDANCE AND
ASSISTANCE IN SUCH MATTERS TO THE MARINE CORPS. BASED ON THE EXISTENCE
OF COMMON OVERALL SUPERVISION WHICH ENCOMPASSES OVERALL PERSONNEL AND
LABOR RELATIONS AUTHORITY AND RESPONSIBILITY, THE AUTHORITY FINDS THAT
THE PROPOSED CONSOLIDATED UNIT WILL PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF THE AGENCY'S OPERATIONS. FURTHER, THE AUTHORITY CONCLUDES
THAT EFFECTIVE DEALINGS AND EFFICIENCY OF THE AGENCY'S OPERATIONS WILL
BE ENHANCED BY THE PROPOSED CONSOLIDATED UNIT, WHICH COVERS ALL OF THE
EMPLOYEES PAID FROM APPROPRIATED FUNDS REPRESENTED BY THE AFGE WITHIN
THE MARINE CORPS, AS IT WILL PROVIDE FOR BARGAINING BY THE AFGE WITHIN
THE MARINE CORPS, AS IT WILL PROVIDE FOR BARGAINING IN A SINGLE UNIT
RATHER THAN IN THE EXISTING 22 BARGAINING UNITS, THEREBY REDUCING
FRAGMENTATION AND PROMOTING A MORE EFFECTIVE, COMPREHENSIVE BARGAINING
UNIT STRUCTURE TO EFFECTUATE THE PURPOSES OF THE STATUTE. /5/
ACCORDINGLY, THE AUTHORITY FINDS, CONDITIONED ON THE FOLLOWING, THAT
THE PETITIONED FOR CONSOLIDATED UNIT, CONSISTING OF THE EMPLOYEES AS SET
FORTH IN APPENDIX A, IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER THE STATUTE.
PURSUANT TO THE REQUEST OF THE MARINE CORPS, AS THE PROPOSED
CONSOLIDATED UNIT IS FOUND TO BE APPROPRIATE, AN ELECTION WILL BE
DIRECTED TO DETERMINE WHETHER OR NOT THE EMPLOYEES INVOLVED DESIRE TO BE
REPRESENTED IN THE PROPOSED CONSOLIDATED UNIT BY THE AFGE. THE UNIT
FOUND APPROPRIATE INCLUDES PROFESSIONAL EMPLOYEES. HOWEVER, THE
AUTHORITY IS PROHIBITED BY SECTION 7112 OF THE STATUTE 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
THEIR INCLUSION IN A UNIT WITH NONPROFESSIONAL EMPLOYEES MUST BE
ASCERTAINED, AND THE AUTHORITY WILL DIRECT THAT SEPARATE ELECTIONS BE
CONDUCTED IN THE FOLLOWING VOTING GROUPS:
VOTING GROUP (A): ALL THE ELIGIBLE PROFESSIONAL EMPLOYEES IN THE
UNITS SET FORTH IN APPENDIX A.
VOTING GROUP (B): ALL THE ELIGIBLE NONPROFESSIONAL EMPLOYEES IN THE
UNITS SET FORTH IN APPENDIX A.
EMPLOYEES IN THE NONPROFESSIONAL VOTING GROUP (B) WILL BE POLLED
WHETHER THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION IN THE PROPOSED CONSOLIDATED UNIT BY THE AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES.
EMPLOYEES IN THE PROFESSIONAL VOTING GROUP (A) WILL BE ASKED TWO
QUESTIONS ON THEIR BALLOTS: (1) WHETHER THEY DESIRE TO BE REPRESENTED
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION IN THE PROPOSED CONSOLIDATED
UNIT BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AND (2) WHETHER
THEY DESIRE TO BE REPRESENTED IN A SEPARATE CONSOLIDATED PROFESSIONAL
UNIT IF THE PROPOSED CONSOLIDATED UNIT IS APPROVED BY A MAJORITY OF ALL
THE EMPLOYEES VOTING.
THE VALID VOTES CAST BY ALL THE ELIGIBLE EMPLOYEES WILL BE TALLIED TO
DETERMINE IF A MAJORITY OF THE VALID VOTES HAS BEEN CAST IN FAVOR OF THE
PROPOSED CONSOLIDATED UNIT. IF A MAJORITY OF THE VALID VOTES HAS NOT
BEEN CAST IN FAVOR OF THE PROPOSED CONSOLIDATED UNIT, THE EMPLOYEES WILL
BE TAKEN TO HAVE INDICATED THEIR DESIRE TO CONTINUE TO BE REPRESENTED IN
THEIR CURRENT UNITS OF EXCLUSIVE RECOGNITION. IF A MAJORITY OF THE
VALID VOTES IS CAST IN FAVOR OF THE PROPOSED CONSOLIDATED UNIT, THE
BALLOTS OF THE PROFESSIONAL EMPLOYEES IN VOTING GROUP (A) WILL THEN BE
TALLIED TO DETERMINE WHETHER THEY WISH TO BE INCLUDED IN THE SAME
CONSOLIDATED UNIT WITH THE NONPROFESSIONAL EMPLOYEES. UNLESS A MAJORITY
OF THE VALID VOTES OF VOTING GROUP (A) IS CAST FOR INCLUSION IN THE SAME
CONSOLIDATED UNIT AS THE NONPROFESSIONAL EMPLOYEES, THE PROFESSIONAL
EMPLOYEES WILL BE TAKEN TO HAVE INDICATED THEIR DESIRE TO CONSTITUTE A
SEPARATE CONSOLIDATED PROFESSIONAL UNIT, AND AN APPROPRIATE
CERTIFICATION WILL BE ISSUED BY THE REGIONAL DIRECTOR.
THE UNIT DETERMINATION IN THE SUBJECT CASE THUS IS BASED IN PART UPON
THE RESULTS OF THE ELECTION AMONG THE PROFESSIONAL EMPLOYEES. HOWEVER,
THE AUTHORITY MAKES THE FOLLOWING FINDINGS IN REGARD TO THE APPROPRIATE
UNIT OR UNITS:
1. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES DOES NOT VOTE FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, THE
AUTHORITY FINDS THE FOLLOWING UNITS APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION WITHIN THE MEANING OF SECTION 7112 OF THE STATUTE:
(A) ALL ELIGIBLE PROFESSIONAL EMPLOYEES IN THE UNITS SET FORTH IN
APPENDIX A.
(B) ALL ELIGIBLE NONPROFESSIONAL EMPLOYEES IN THE UNITS SET FORTH IN
APPENDIX A.
IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES VOTES FOR INCLUSION IN
THE SAME CONSOLIDATED UNIT AS THE NONPROFESSIONAL EMPLOYEES, THE
AUTHORITY FINDS THE FOLLOWING UNIT APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION WITHIN THE MEANING OF SECTION 7112 OF THE STATUTE:
ALL ELIGIBLE PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES IN THE UNITS
SET FORTH IN APPENDIX A.
DIRECTION OF ELECTION
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE AS SOON AS FEASIBLE. THE APPROPRIATE
REGIONAL DIRECTOR SHALL SUPERVISE OR CONDUCT, AS APPROPRIATE, THE
ELECTION SUBJECT TO THE AUTHORITY'S RULES AND 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 BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE.
ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX A
EXISTING UNITS
INCLUDED: ALL ELIGIBLE EMPLOYEES AT THE MARINE CORPS SUPPLY CENTER,
BARSTOW, CALIFORNIA.
EXCLUDED: ALL SUPERVISORS, MANAGEMENT OFFICIALS AND EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY.
INCLUDED: ALL NONPROFESSIONAL GENERAL SCHEDULE EMPLOYEES EMPLOYED BY
THE MARINE CORPS AIR STATION, EL TORO, CALIFORNIA.
EXCLUDED: PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS,
FIREFIGHTERS, 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.
INCLUDED: ALL CIVIL SERVICE GENERAL SCHEDULE AND WAGE BOARD CIVILIAN
EMPLOYEES OF THE MARINE CORPS RECRUIT DEPOT, SAN DIEGO, CALIFORNIA.
EXCLUDED: MANAGERS, SUPERVISORS, PROFESSIONAL EMPLOYEES, PERSONS
PERFORMING FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, ALL FIRE PROTECTION PERSONNEL, GUARDS AND TEMPORARY (LIMITED
TIME) EMPLOYEES.
INCLUDED: ALL NONSUPERVISORY FIREFIGHTERS AT THE MARINE CORPS AIR
STATION - EL TORO, SANTA ANA, CALIFORNIA.
EXCLUDED: ALL SUPERVISORS, MANAGEMENT OFFICIALS AND PERSONNEL
ENGAGED IN PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY.
INCLUDED: ALL NONSUPERVISORY WAGE GRADE EMPLOYEES AT THE MARINE
CORPS AIR STATION - EL TORO, SANTA ANA, CALIFORNIA.
EXCLUDED: ALL SUPERVISORS, MANAGEMENT OFFICIALS, GS EMPLOYEES AND
PERSONNEL ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY.
INCLUDED: ALL NONSUPERVISORY WAGE GRADE AND GENERAL SCHEDULE
EMPLOYEES AT THE MARINE CORPS AIR STATION - HELICOPTER - EL TORO, SANTA
ANA, CALIFORNIA.
EXCLUDED: ALL SUPERVISORS, MANAGEMENT OFFICIALS AND PERSONNEL
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY.
INCLUDED: ALL CIVIL SERVICE EMPLOYEES OF THE MARINE CORPS BASE,
TWENTY-NINE PALMS, CALIFORNIA.
EXCLUDED: MANAGEMENT OFFICIALS, SUPERVISORS, EMPLOYEES ENGAGED IN
PERSONNEL WORK OTHER THAN PURELY CLERICAL WORK AND PROFESSIONAL
EMPLOYEES.
INCLUDED: ALL APPROPRIATED FUND EMPLOYEES EMPLOYED BY THE MARINE
CORPS LOGISTICS BASE, ALBANY, GEORGIA.
EXCLUDED: ALL PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS,
SUPERVISORS AND EMPLOYEES DESCRIBED IN 5 USC 7112(B)(2), (3), (4), (6),
AND (7).
INCLUDED: ALL ELIGIBLE EMPLOYEES, INCLUDING PROFESSIONALS, AT THE
U.S. MARINE CORPS AIR STATION, KANEOHE BAY, HAWAII.
EXCLUDED: ALL SUPERVISORS, MANAGEMENT OFFICIALS AND PERSONNEL
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY.
INCLUDED: ALL GENERAL SCHEDULE EMPLOYEES OF THE MARINE CORPS FINANCE
CENTER.
EXCLUDED: (1) MANAGEMENT OFFICIALS OR SUPERVISORS, (2) EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK (WITHIN THE MEANING OF SECTION 10 OF
EXECUTIVE ORDER 11491), (3) GUARDS AND (4) PROFESSIONAL EMPLOYEES.
INCLUDED: ALL GENERAL SCHEDULE EMPLOYEES OF THE MARINE CORPS
AUTOMATED SERVICES CENTER, KANSAS CITY, MISSOURI.
EXCLUDED: ALL EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER
THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, CONFIDENTIAL
EMPLOYEES AND SUPERVISORS AS DEFINED IN THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
INCLUDED: ALL ELIGIBLE EMPLOYEES AT THE U.S. MARINE CORPS BASE, CAMP
LEJEUNE, NORTH CAROLINA.
EXCLUDED: ALL SUPERVISORS, MANAGEMENT OFFICIALS, PROFESSIONALS AND
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY.
INCLUDED: ALL CIVIL SERVICE EMPLOYEES OF THE FIRE DIVISION, SECURITY
DEPARTMENT, MARINE CORPS AIR STATION, CHERRY POINT, NORTH CAROLINA.
EXCLUDED: ALL SUPERVISORS, MANAGEMENT OFFICIALS AND PERSONNEL
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY.
INCLUDED: ALL CIVIL SERVICE EMPLOYEES OF THE TELEPHONE BRANCH,
PUBLIC WORKS DEPARTMENT, MARINE CORPS AIR STATION, CHERRY POINT, NORTH
CAROLINA.
EXCLUDED: ALL SUPERVISORS, MANAGEMENT OFFICIALS, AND PERSONNEL
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY.
INCLUDED: ALL NONSUPERVISORY EMPLOYEES AT THE MARINE CORPS AIR
STATION - HELICOPTER - NEW RIVER - JACKSONVILLE, NORTH CAROLINA.
EXCLUDED: ALL SUPERVISORS, MANAGEMENT OFFICIALS AND PERSONNEL
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY.
INCLUDED: ALL GRADED AND UNGRADED APPROPRIATED FUND EMPLOYEES AT THE
MARINE CORPS AIR STATION, BEAUFORT, SOUTH CAROLINA.
EXCLUDED: TEACHERS, SUPERVISORS, MANAGEMENT PERSONNEL, PROFESSIONAL
PERSONNEL AND EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN
A PURELY CLERICAL CAPACITY.
INCLUDED: ALL CIVIL SERVICE NONSUPERVISORY, NONPROFESSIONAL
EMPLOYEES OF THE MARINE CORPS RECRUIT DEPOT, PARRIS ISLAND, SOUTH
CAROLINA.
EXCLUDED: ANY MANAGEMENT OFFICIAL AND ANY EMPLOYEE ENGAGED IN
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY WHO ARE EXCLUDED
BY EXECUTIVE ORDER 10988.
INCLUDED: ALL NONSUPERVISORY, NONPROFESSIONAL GENERAL SCHEDULE (GS)
AND WAGE GRADE (WG) EMPLOYEES IN THE COMMISSARY STORE, MARINE CORPS
BASE, QUANTICO, VIRGINIA.
EXCLUDED: PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT
OFFICIALS AND GUARDS.
INCLUDED: ALL ELIGIBLE EMPLOYEES OF THE MARINE CORPS AIR STATION,
QUANTICO, VIRGINIA.
EXCLUDED: ALL MANAGEMENT OFFICIALS, SUPERVISORS, GUARDS,
PROFESSIONALS AND EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER
THAN A PURELY CLERICAL CAPACITY.
INCLUDED: ALL GOVERNMENT EMPLOYEES OF MARINE CORPS SCHOOLS LESS THE
EMPLOYEES OF THE SALES COMMISSARY, GRADED EMPLOYEES IN GRADES OF GS-9
AND ABOVE AND LEADINGMEN (FOREMEN) AND THOSE IN THE UNGRADED SERVICE.
INCLUDED: ALL NONSUPERVISORY, NONPROFESSIONAL GENERAL SCHEDULE
EMPLOYEES AT THE MARINE CORPS DISTRICT, PHILADELPHIA, PENNSYLVANIA.
EXCLUDED: ALL SUPERVISORS, PROFESSIONALS, MANAGEMENT OFFICIALS AND
PERSONNEL ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY.
INCLUDED: ALL GENERAL SCHEDULE AND FEDERAL WAGE SCHEDULE EMPLOYEES
OF THE U.S. MARINE CORPS, CAMP SMEDLEY D. BUTLER, OKINAWA.
EXCLUDED: PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, CONFIDENTIAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, SUPERVISORS AND EMPLOYEES EXCLUDED FROM
EXECUTIVE ORDER 11491, AS AMENDED, UNDER THE TERMS OF DOD INSTRUCTION
1426.1.
/1/ SEC. 7112. DETERMINATION OF APPROPRIATE UNITS FOR LABOR
ORGANIZATION REPRESENTATION
(A)(1) THE AUTHORITY SHALL DETERMINE THE APPROPRIATENESS OF ANY UNIT.
THE AUTHORITY SHALL
DETERMINE IN EACH CASE WHETHER, IN ORDER TO ENSURE EMPLOYEES THE
FULLEST FREEDOM IN EXERCISING
THE RIGHTS GUARANTEED UNDER THIS CHAPTER, THE APPROPRIATE UNIT SHOULD
BE ESTABLISHED ON AN
AGENCY, PLANT, INSTALLATION, FUNCTIONAL, OR OTHER BASIS AND SHALL
DETERMINE ANY UNIT TO BE AN
APPROPRIATE UNIT ONLY IF THE DETERMINATION WILL ENSURE A CLEAR AND
IDENTIFIABLE COMMUNITY OF
INTEREST AMONG THE EMPLOYEES IN THE UNIT AND WILL PROMOTE EFFECTIVE
DEALINGS WITH, AND
EFFICIENCY OF THE OPERATIONS OF, THE AGENCY INVOLVED.
/2/ ADDITIONALLY, THE AGENCY CONTENDS THAT ALTHOUGH MANY POSITIONS IN
THE PROPOSED UNIT HAVE THE SAME CLASSIFICATION TITLES AND REQUIRE THE
SAME SKILLS AND PERFORMANCE OF ESSENTIALLY THE SAME DUTIES, THE
UNIVERSALITY OF THE CLASSIFICATION SYSTEM IN THE FEDERAL SECTOR
MILITATES AGAINST UTILIZATION OF THESE CIRCUMSTANCES TO BOLSTER A
FINDING THAT ANY COMMONALITY EXISTS WHICH IS PECULIAR TO THE PROPOSED
UNIT.
/3/ THE RECORD INDICATES THAT THE ACTIVITIES WHICH FALL DIRECTLY INTO
THIS CATEGORY BUT ARE NOT INVOLVED IN THE PETITION HEREIN ARE AS
FOLLOWS: THE MARINE CORPS RESERVE FORCES ADMINISTRATIVE CENTER, KANSAS
CITY (109 CIVILIANS), THE 4TH MARINE AIRCRAFT WING LOCATED AT NEW
ORLEANS, LOUISIANA (2 CIVILIANS), AND THE 4TH MARINE DIVISION LOCATED AT
NEW ORLEANS, LOUISIANA (24 CIVILIANS).
/4/ SECTION 7112(D) PROVIDES AS FOLLOWS:
(D) TWO OR MORE UNITS WHICH ARE IN AN AGENCY AND FOR WHICH A LABOR
ORGANIZATION IS THE
EXCLUSIVE REPRESENTATIVE MAY, UPON PETITION BY THE AGENCY OR LABOR
ORGANIZATION, BE
CONSOLIDATED WITH OR WITHOUT AN ELECTION INTO A SINGLE LARGER UNIT IF
THE AUTHORITY CONSIDERS
THE LARGER UNIT TO BE APPROPRIATE. THE AUTHORITY SHALL CERTIFY THE
LABOR ORGANIZATION AS THE
EXCLUSIVE REPRESENTATIVE OF THE NEW LARGER UNIT.
/5/ SEE AAFES, SUPRA, WHEREIN THE AUTHORITY, IN FINDING THE UNIT
APPROPRIATE, NOTED PARTICULARLY THE CENTRALIZATION OF PERSONNEL AND
LABOR RELATIONS FUNCTIONS, THE ESTABLISHMENT OF BROAD OPERATING POLICIES
AT THE HEADQUARTERS LEVEL, THE FACT THAT THE EMPLOYEES SOUGHT WERE
SUFFICIENTLY WELL DISTRIBUTED THROUGHOUT THE ORGANIZATIONAL AND
GEOGRAPHIC ELEMENTS OF AAFES SO AS TO CONSTITUTE A MEANINGFUL
CONSOLIDATION OF ALL AGENCY EMPLOYEES REPRESENTED BY THE PETITION, AND
THAT CONSOLIDATION WOULD RESULT IN BARGAINING IN A SINGLE UNIT RATHER
THAN IN THE PREVIOUSLY EXISTING 69 UNITS, THUS REDUCING FRAGMENTATION
AND PROMOTING MORE EFFECTIVE, COMPREHENSIVE BARGAINING UNIT STRUCTURE TO
EFFECTUATE THE PURPOSES OF THE STATUTE.
8 FLRA 3; FLRA 9-RO-56; FEBRUARY 4, 1982.
DEPARTMENT OF THE NAVY
NAVAL AIR STATION
MOFFETT FIELD, CALIFORNIA
ACTIVITY
AND
INTERNATIONAL ASSOCIATION OF
FIRE FIGHTERS, LOCAL F-205,
AFL-CIO
LABOR ORGANIZATION/PETITIONER
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 759
INCUMBENT LABOR ORGANIZATION
CASE NO. 9-RO-56
DECISION AND ORDER
UPON A PETITION DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
UNDER SECTION 7111 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE), A HEARING WAS HELD BEFORE A HEARING OFFICER OF
THE AUTHORITY. THE AUTHORITY HAS REVIEWED THE HEARING OFFICER'S RULINGS
MADE AT THE HEARING AND FINDS THAT THEY ARE FREE FROM PREJUDICIAL ERROR.
THEY ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD, INCLUDING BRIEFS TIMELY FILED BY THE
INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-205, AFL-CIO (IAFF)
AND THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 759 (NFFE), THE
AUTHORITY FINDS AS FOLLOWS: /1/
THE PETITIONER, THE IAFF, SEEKS TO SEVER ALL FIRE FIGHTER PERSONNEL
EMPLOYED AT THE ACTIVITY FROM THE ACTIVITY-WIDE UNIT CURRENTLY
REPRESENTED ON AN EXCLUSIVE BASIS BY THE NFFE. /2/ BOTH THE ACTIVITY
AND THE NFFE TAKE THE POSITION THAT SEVERANCE SHOULD NOT BE PERMITTED
WHERE AN ESTABLISHED AND FAIR BARGAINING RELATIONSHIP IS IN EXISTENCE.
/3/
THE NFFE WAS GRANTED FORMAL RECOGNITION ON JUNE 20, 1962, AND
EXCLUSIVE RECOGNITION ON NOVEMBER 13, 1967, BY THE ACTIVITY, UNDER
EXECUTIVE ORDER 10988. THE NFFE AND THE ACTIVITY ARE PARTIES TO A
NEGOTIATED AGREEMENT WITH A STATED EXPIRATION DATE OF MARCH 3, 1981.
THE EXCLUSIVE BARGAINING UNIT AS DESCRIBED IN THE NEGOTIATED AGREEMENT
READS AS FOLLOWS:
THE UNIT IS COMPOSED OF ALL CIVIL SERVICE EMPLOYEES OF NAVAL AIR
STATION, MOFFETT FIELD AS
ESTABLISHED BY THE COMMANDING OFFICER'S LETTER OF 12 NOVEMBER 1967,
WHICH GRANTED EXCLUSIVE
RECOGNITION TO THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
NO. 759. THOSE EMPLOYEES
SPECIFICALLY EXCLUDED BY EXECUTIVE ORDER 10988 AND EMPLOYEES OF
TENANT ACTIVITIES ARE EXCLUDED
FROM THE UNIT TO WHICH THIS AGREEMENT IS APPLICABLE. TENANT
ACTIVITIES INCLUDE THE COMMISSARY
STORE, FLEET UNITS, AND ACTIVITIES OF THE NAVY AND OTHER FEDERAL
AGENCIES BASED ON THE AIR
STATION BUT NOT A PART OF THE NAVAL AIR STATION ORGANIZATION.
THE MISSION OF THE ACTIVITY IS TO MAINTAIN AND OPERATE FACILITIES AND
PROVIDE SERVICES AND MATERIAL TO SUPPORT OPERATIONS OF AVIATION
ACTIVITIES AND UNITS AS DESIGNATED BY THE CHIEF OF NAVAL OPERATIONS.
THUS, IT IS PRIMARILY RESPONSIBLE FOR PROVIDING SUPPORT TO THE NAVAL AIR
UNITS AND OTHER TENANT ACTIVITIES LOCATED AT MOFFETT FIELD.
THE FIRE DEPARTMENT, AS IT WAS REFERRED TO IN THE RECORD, IS
DESIGNATED ORGANIZATIONALLY AS THE AIRCRAFT/STRUCTURAL FIRE
FIGHTING/FIRE AND RESCUE DIVISION OF THE ACTIVITY'S AIR OPERATIONS
DEPARTMENT. IT IS HEADED BY A FIRE CHIEF WHO REPORTS TO THE BASE
COMMANDING OFFICER THROUGH THE AIR OPERATIONS DEPARTMENT HEAD. THE FIRE
CHIEF IS RESPONSIBLE FOR PROVIDING FIRE FIGHTING SERVICES BOTH TO THE
NAVAL AIR UNITS AND TO THE BASE COMPLEX. IN ADDITION, CERTAIN FIRE
FIGHTING SERVICES ARE PROVIDED TO LOCAL COMMUNITIES THROUGH A MUTUAL
ASSISTANCE PACT. THE FIRE DEPARTMENT'S MISSION IS ACCOMPLISHED THROUGH
TWO SEPARATE BRANCHES: ONE RESPONSIBLE FOR STRUCTURAL FIRE FIGHTING AND
THE OTHER HAVING RESPONSIBILITY FOR AIRCRAFT FIRE AND RESCUE. EACH
BRANCH OPERATES OUT OF A SEPARATE STATION.
THE 46 FIRE DEPARTMENT EMPLOYEES REPRESENT APPROXIMATELY ELEVEN PER
CENT OF THE 419 ACTIVITY EMPLOYEES. ALL OF THE ACTIVITY'S EMPLOYEES,
INCLUDING THE FIRE DEPARTMENT EMPLOYEES, ARE SUBJECT TO THE SAME MERIT
PROMOTION AND LABOR RELATIONS POLICIES AS ADMINISTERED BY THE ACTIVITY'S
CIVILIAN PERSONNEL OFFICE. ALSO, ALL ARE SUBJECT TO THE SAME
COMPETITIVE AREAS FOR BOTH MERIT PROMOTIONS AND REDUCTIONS-IN-GRADE.
HOWEVER, THE FIRE DEPARTMENT PERSONNEL ARE SUBJECT TO DIFFERENT PAY AND
RETIREMENT THAN OTHER ACTIVITY EMPLOYEES, /4/ AND FIRE FIGHTERS
GENERALLY WORK DIFFERENT HOURS AND ARE SUBJECT TO CERTAIN SPECIAL
CONDITIONS OF EMPLOYMENT NOT ENJOYED BY OTHER ACTIVITY EMPLOYEES.
MOREOVER, THE RECORD REFLECTS THAT OTHER UNIT EMPLOYEES ALSO ARE SUBJECT
TO SPECIAL WORKING CONDITIONS, UNIQUE TO THEIR BRANCH OR CLASSIFICATION.
FOR EXAMPLE, OTHER EMPLOYEES PERFORM SHIFT WORK, RECEIVE SHIFT
PREMIUMS, AND RECEIVE TRAINING UNIQUE TO THEIR CLASSIFICATION.
THE IAFF ALLEGES THAT THE EXCLUSIVE REPRESENTATIVE HAS NOT PROVIDED
FAIR REPRESENTATION TO THE FIRE DEPARTMENT EMPLOYEES. IT ARGUES FURTHER
THAT IT CAN PROVIDE SPECIALIZED REPRESENTATION TO THE PETITIONED FOR
EMPLOYEES BECAUSE IT REPRESENTS ONLY FIRE FIGHTERS AND, THEREFORE, HAS
KNOWLEDGE OF FIRE FIGHTERS' SPECIAL NEEDS AND CONDITIONS OF EMPLOYMENT.
IN THIS REGARD, HOWEVER, THE RECORD HEREIN SHOWS THAT FIRE FIGHTERS HAVE
SERVED AS OFFICERS OF THE EXCLUSIVE REPRESENTATIVE UNTIL RECENTLY AND
THAT SOME WERE MEMBERS AT THE TIME OF THE HEARING. MOREOVER, THE RECORD
REFLECTS THAT THE NFFE HAS REPRESENTED FIRE FIGHTERS IN THEIR
GRIEVANCES. FURTHER, THE ALLEGATIONS RAISED BY THE IAFF AS TO NFFE'S
REPRESENTATION OF THE FIRE FIGHTERS ARE NOT SUBSTANTIATED BY RECORD
TESTIMONY. WHILE THE NFFE HAS NOT NEGOTIATED ANY SPECIAL PROVISIONS FOR
FIRE FIGHTERS, THERE IS NO EVIDENCE TO SUGGEST THAT INTERESTS OF THE
FIRE FIGHTERS HAVE NOT BEEN ATTENDED TO IN NEGOTIATIONS. WITH RESPECT
TO IAFF'S CLAIMS REGARDING PENDING LEGISLATION IT HAS SUPPORTED FOR FIRE
FIGHTERS, THE RECORD ESTABLISHES THAT NFFE HAS ALSO SUPPORTED SUCH
LEGISLATION. /5/
THE AUTHORITY ESTABLISHED AS A GENERAL STANDARD IN SEVERANCE ISSUES
THAT IT "IS BOUND BY THE THREE CRITERIA FOR DETERMINING THE
APPROPRIATENESS OF ANY UNIT . . . " /6/ SUCH A STANDARD IS MANDATED BY
SECTION 7112(A)(1) OF THE STATUTE. /7/
IN APPLYING THE THREE CRITERIA TO THE CIRCUMSTANCES OF THIS CASE, THE
AUTHORITY CONCLUDES THAT SEVERANCE SHOULD BE DENIED. THE RECORD
ESTABLISHES THAT THE ACTIVITY-WIDE UNIT CURRENTLY REPRESENTED BY THE
NFFE IS APPROPRIATE, AS ALL OF THE ACTIVITY'S EMPLOYEES, INCLUDING THE
FIRE FIGHTERS SOUGHT TO BE SEVERED HEREIN, SHARE A COMMUNITY OF INTEREST
AT THE ACTIVITY LEVEL THAT WILL PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. THUS, ALL OF THE ACTIVITY'S EMPLOYEES
SHARE A COMMON MISSION, ARE SUBJECT TO THE SAME MERIT PROMOTION POLICIES
AND COMPETITIVE AREAS AND HAVE BEEN PART OF A LONG-STANDING, ESTABLISHED
BARGAINING UNIT. /8/ AS TO PROMOTING EFFECTIVE DEALINGS, THE COLLECTIVE
BARGAINING HISTORY SHOWS THAT FIRE FIGHTERS HAVE BEEN REPRESENTED
FAIRLY, AND THERE IS INSUFFICIENT EVIDENCE TO DEMONSTRATE THAT THIS
ESTABLISHED BARGAINING RELATIONSHIP IS NOT EFFECTIVE. NOR HAS THE IAFF
DEMONSTRATED THE EXISTENCE OF UNUSUAL CIRCUMSTANCES WHICH WOULD JUSTIFY
SEVERANCE. /9/ FINALLY, IT IS CONCLUDED THAT DENIAL OF SEVERANCE WILL
REDUCE THE POTENTIAL FOR UNIT FRAGMENTATION THEREBY PROMOTING EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, THE
AUTHORITY SHALL ORDER THAT THE IAFF'S PETITION FOR EXCLUSIVE
REPRESENTATION BE DISMISSED.
ORDER
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 9-RO-56 BE, AND IT
HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ THE ACTIVITY FILED AN UNTIMELY BRIEF WHICH HAS NOT BEEN
CONSIDERED PURSUANT TO SECTION 2422.14 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 C.F.R. 2422.14(1981)).
/2/ THE UNIT DESCRIBED IN THE PETITION, AS AMENDED AT THE HEARING,
READS AS FOLLOWS:
INCLUDED, ALL GS FIRE FIGHTER PERSONNEL EMPLOYED AT THE NAVAL AIR
STATION, MOFFETT FIELD,
CALIFORNIA; EXCLUDING THE FIRE CHIEF, ASSISTANT FIRE CHIEF,
BATTALION CHIEFS AND EMPLOYEES
UNDER SECTION 7112(B)(2), (3), (4), (5), (6) AND (7) OF THE FEDERAL
SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE.
/3/ THE NFFE ALSO ARGUED THAT THE PETITION SHOULD BE DISMISSED AS
UNTIMELY FILED BASED ON THE DATE IT RECEIVED SERVICE OF THE PETITION.
HOWEVER, THE RECORD REFLECTS THAT THE PETITION WAS FILED IN THE REGIONAL
OFFICE WITHIN THE REQUIREMENTS OF SECTION 7111(F)(3) OF THE STATUTE AND
SECTION 2422.3 OF THE AUTHORITY'S RULES AND REGULATIONS (5 C.F.R.
2422.3(1981)). THEREFORE, THE PETITION WAS TIMELY FILED.
/4/ FPM SUPPLEMENT 831.1, SECTION F-9-3 ENTITLED SPECIAL ELIGIBILITY
FOR LAW ENFORCEMENT AND FIRE FIGHTERS RETIREMENT; FPM 831-5A ENTITLED
FIRE FIGHTER RETIREMENT, BREAK-IN SERVICE, PER PUBLIC LAW 93-350; AND,
FPM LETTER NO. 551-5 REGARDING APPLICATION OF THE FAIR LABOR STANDARDS
ACT TO FEDERAL EMPLOYEES ENGAGED IN FIRE PROTECTION ACTIVITIES OR LAW
ENFORCEMENT ACTIVITIES.
/5/ THE NFFE AND THE IAFF, AS WELL AS OTHER FEDERAL UNIONS, HAVE
SUPPORTED LEGISLATION TO PROVIDE SPECIAL DEATH BENEFITS AND A REDUCED
WORK WEEK TO FIRE FIGHTERS AND LAW ENFORCEMENT OFFICERS.
/6/ INTERNATIONAL COMMUNICATION AGENCY, 5 FLRA NO. 19(1981).
/7/ SECTION 7112(A)(1) PROVIDES:
SEC. 7112. DETERMINATION OF APPROPRIATE UNITS FOR LABOR ORGANIZATION
REPRESENTATION.
(A)(1) THE AUTHORITY SHALL DETERMINE THE APPROPRIATENESS OF ANY UNIT.
THE AUTHORITY SHALL
DETERMINE IN EACH CASE WHETHER, IN ORDER TO ENSURE EMPLOYEES THE
FULLEST FREEDOM IN EXERCISING
THE RIGHTS GUARANTEED UNDER THIS CHAPTER, THE APPROPRIATE UNIT SHOULD
BE ESTABLISHED ON AN
AGENCY, PLANT INSTALLATION, FUNCTIONAL, OR OTHER BASIS AND SHALL
DETERMINE ANY UNIT TO BE AN
APPROPRIATE UNIT ONLY IF THE DETERMINATION WILL ENSURE A CLEAR AND
IDENTIFIABLE COMMUNITY OF
INTEREST AMONG THE EMPLOYEES IN THE UNIT AND WILL PROMOTE EFFECTIVE
DEALINGS WITH, AND
EFFICIENCY OF THE OPERATIONS OF, THE AGENCY INVOLVED.
/8/ THIS IS NOT TO SAY THAT A UNIT OF FIRE FIGHTER PERSONNEL WOULD BE
INAPPROPRIATE IF SUCH UNIT WERE NOT ALREADY PART OF AN ESTABLISHED
LARGER UNIT.
/9/ COMPARE, INTERNATIONAL COMMUNICATION AGENCY, SUPRA, WHERE SUCH
UNUSUAL CIRCUMSTANCES WERE PRESENT, INCLUDING AGREEMENT OF THE ACTIVITY
AND BOTH UNIONS TO THE SEVERANCE SOUGHT THEREIN.
8 FLRA 2; FLRA 0-NG-301; FEBRUARY 4, 1982.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3098
UNION
AND
INDIANA AIR NATIONAL GUARD
AGENCY
CASE NO. 0-NG-301
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE),
AND RAISES AN ISSUE AS TO THE NEGOTIABILITY OF THE FOLLOWING TWO UNION
PROPOSALS:
SECTION 4: APPEALS AND GRIEVANCE OPTIONS
AN AGGRIEVED EMPLOYEE AFFECTED BY DISCRIMINATION, A REMOVAL OR
REDUCTION IN GRADE BASED ON
UNACCEPTABLE PERFORMANCE, OR ADVERSE ACTION MAY AT HIS/HER OPTION
RAISE THE MATTER UNDER A
STATUTORY APPELLATE PROCEDURE OR THE NEGOTIATED GRIEVANCE PROCEDURE,
BUT NOT BOTH (EXCEPT FOR
DISCRIMINATION COMPLAINTS). FOR THE PURPOSES OF THIS SECTION AND
PURSUANT TO SECTION
7121(E)(1) OF THE ACT, AN EMPLOYEE SHALL BE DEEMED TO HAVE EXERCISED
HIS OPTION UNDER THIS
SECTION ONLY WHEN THE EMPLOYEE FILES A TIMELY GRIEVANCE IN WRITING
UNDER THE APPELLATE
PROCEDURE OR FILES A TIMELY GRIEVANCE IN WRITING UNDER THE NEGOTIATED
GRIEVANCE PROCEDURE.
SECTION 11: STAYS OF PERSONNEL ACTION
A PENDING OR PROPOSED PERSONNEL ACTION WHICH HAS BEEN MADE THE
SUBJECT OF A GRIEVANCE OR
ARBITRATION WILL BE STAYED PENDING THE FINAL DECISION OF THE MATTER.
UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
INSOFAR AS SECTION 4 WOULD INCLUDE WITHIN THE SCOPE AND COVERAGE OF
THE NEGOTIATED GRIEVANCE PROCEDURE MATTERS RELATING TO APPEALS OF
ADVERSE ACTIONS INVOLVING NATIONAL GUARD TECHNICIANS AS WELL AS PROVIDE
THE EMPLOYEE AN OPTION TO APPEAL AN ADVERSE ACTION THROUGH THE STATUTORY
OR NEGOTIATED PROCEDURE, IT BEARS NO MATERIAL DIFFERENCE FROM THE
DISPUTED PROPOSAL WHICH WAS HELD NEGOTIABLE IN NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R12-132 AND CALIFORNIA NATIONAL GUARD, 5
FLRA NO. 25(1981), APPEAL DOCKETED, NO. 81-7231 (9TH CIR.APR. 17,
1981). HOWEVER, INSOFAR AS SECTION 4 WOULD PERMIT THE FILING OF A
DISCRIMINATION COMPLAINT UNDER BOTH A STATUTORY APPEAL PROCEDURE AND THE
NEGOTIATED GRIEVANCE PROCEDURE, IT BEARS NO MATERIAL DIFFERENCE FROM
THAT PORTION OF THE "GRIEVANCE PROCEDURE" PROPOSAL FOUND NON-NEGOTIABLE
IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3486 AND
NEW JERSEY AIR NATIONAL GUARD, 177TH FIGHTER INTERCEPTOR GROUP, POMONA,
NEW JERSEY, 5 FLRA NO. 26(1981), APPEAL DOCKETED, NO. 81-1592 (3RD
CIR.APR. 17, 1981). THEREFORE, BASED ON THE REASONS SET FORTH IN DETAIL
IN THE AFOREMENTIONED DECISIONS, THE PRESENT PROPOSAL MUST ALSO BE HELD
TO BE WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE EXCEPT TO THE EXTENT
NOTED.
INSOFAR AS SECTION 11 IS CONCERNED, IT IS IDENTICAL TO PROPOSAL 3
WHICH WAS HELD NEGOTIABLE IN AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 547, AFL-CIO AND VETERANS ADMINISTRATION MEDICAL
CENTER, TAMPA, FLORIDA, 4 FLRA NO. 50(1981), APPEAL DOCKETED, NO.
80-5938 (5TH CIR. NOV. 25, 1981). CONSEQUENTLY, FOR THE REASONS STATED
IN THAT CASE, SECTION 11 MUST ALSO BE HELD TO BE A NEGOTIABLE PROCEDURE
UNDER SECTION 7106(B)(2) OF THE STATUTE. /1/
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE AGENCY SHALL
UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN ON
SECTION 4 OF THE PROPOSAL EXCEPT TO THE EXTENT INDICATED HEREIN AND ON
SECTION 11 OF THE PROPOSAL IN ITS ENTIRETY. /2/
ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ IN SO CONCLUDING, THE AUTHORITY REJECTS AS UNSUPPORTED THE
AGENCY'S CONTENTIONS THAT THE PROPOSAL WOULD PREVENT THE AGENCY FROM
ACTING AT ALL TO EXERCISE ITS RIGHTS. FURTHER, IN THIS REGARD, THE FACT
THAT THIS PROPOSAL CONCERNS NATIONAL GUARD TECHNICIANS PROVIDES NO BASIS
FOR REACHING A DIFFERENT RESULT FROM THAT CONCERNING PROPOSAL 3 IN
VETERANS ADMINISTRATION MEDICAL CENTER, SUPRA. SEE DEPARTMENT OF THE
AIR FORCE, U.S. AIR FORCE ACADEMY, 6 FLRA NO. 100(1981).
/2/ IN FINDING THE UNION PROPOSALS NEGOTIABLE TO THE EXTENT INDICATED
ABOVE, THE AUTHORITY MAKES NO JUDGMENT AS TO THEIR MERITS.
8 FLRA 1; FLRA 0-NG-281; FEBRUARY 4, 1982.
NATIONAL TREASURY EMPLOYEES UNION
UNION
AND
U.S. CUSTOMS SERVICE,
WASHINGTON, D.C.
AGENCY
CASE NO. 0-NG-281
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5
U.S.C. 7101 ET SEQ.), AND RAISES THE QUESTION OF THE NEGOTIABILITY OF
THREE UNION PROPOSALS. UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD,
INCLUDING THE PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING
DETERMINATIONS.
UNION PROPOSAL I
HATS MAY ONLY BE REQUIRED WHEN WORKING OUT OF DOORS, OR WHERE
HEADGEAR IS REQUIRED FOR
SAFETY, EXCLUDING UNIFORMED PERSONNEL PERFORMING VEHICLE INSPECTION.
(ONLY THE UNDERLINED
PORTION IS IN DISPUTE.) /1/
THE AUTHORITY AGREES WITH THE AGENCY THAT THE UNDERLINED PORTION OF
THIS PROPOSAL IS NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY PURSUANT
TO SECTION 7106(B)(1) OF THE STATUTE. /2/ SINCE THE AGENCY HAS ELECTED
NOT TO NEGOTIATE, THE PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN. MORE
SPECIFICALLY, THE AUTHORITY CONCLUDES THE THE UNDERLINED PORTION OF
UNION PROPOSAL I CONCERNS "THE MEANS OF PERFORMING WORK" WITHIN THE
MEANING OF THAT PHRASE IN SECTION 7106(B)(1). THE RECORD IN THIS CASE
SHOWS THAT THE PRINCIPAL PURPOSE OF THE CUSTOMS SERVICE'S LAW
ENFORCEMENT UNIFORM IS TO ENABLE THE PUBLIC TO READILY IDENTIFY THE
WEARER AS A REPRESENTATIVE OF GOVERNMENT AND THAT THE WEARING OF A HAT
PROMOTES THIS PURPOSE. FURTHER, LAW ENFORCEMENT IS ENHANCED. SEE
NATIONAL TREASURY EMPLOYEES UNION AND U.S. CUSTOMS SERVICE, REGION VIII,
SAN FRANCISCO, CALIFORNIA, 2 FLRA 255(1979). ACCORDINGLY, PURSUANT TO
SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
2424.10(1981)), IT IS ORDERED THAT THE PORTION OF THE UNION'S PETITION
FOR REVIEW RELATING TO UNION PROPOSAL I BE, AND IT HEREBY IS, DISMISSED.
UNION PROPOSAL II
IF A MEMBER OF THE PUBLIC COMPLAINS ABOUT THE ACTIONS OF ANY
EMPLOYEE, THE AFFECTED
EMPLOYEE WILL ONLY BE REQUIRED TO PROVIDE THE COMPLAINANT WITH HIS OR
HER BADGE NUMBER. AN
EMPLOYEE WHO DOES NOT HAVE A BADGE NUMBER WILL REFER THE COMPLAINANT
TO HIS SUPERVISOR. IF
THE COMPLAINING PARTY PERSISTS IN ATTEMPTS TO OBTAIN THE AFFECTED
EMPLOYEE'S NAME, THE
EMPLOYER WILL NOT DISCLOSE THE EMPLOYEE'S IDENTITY WITHOUT HIS
CONSENT. THE SUPERVISOR WILL
PROVIDE THE COMPLAINING PARTY WITH THE EMPLOYEE'S BADGE NUMBER AND
THE APPROPRIATE
DISTRICT/AREA DIRECTOR'S NAME AND ADDRESS AND OFFICE TELEPHONE
NUMBER. (ONLY THE UNDERLINED
PORTION IS IN DISPUTE.)
IN AGREEMENT WITH THE AGENCY, THE AUTHORITY CONCLUDES THAT THE
UNDERLINED PORTION OF THE PROPOSAL IS NEGOTIABLE ONLY AT THE ELECTION OF
THE AGENCY UNDER SECTION 7106(B)(1) OF THE STATUTE, AND THE AGENCY HAS
ELECTED NOT TO NEGOTIATE. THE RECORD SHOWS THAT THE AGENCY'S COMMITMENT
TO COURTEOUS TREATMENT OF THE TRAVELING PUBLIC IS CENTRAL TO EFFECTIVELY
ACCOMPLISHING ITS LAW ENFORCEMENT FUNCTION. BY VIRTUE OF THE PUBLIC
BEING ABLE TO IDENTIFY WITH WHOM THEY ARE DEALING, I.E., BY REQUESTING
THEIR NAMES, COURTEOUS TREATMENT IS FURTHERED. THUS, THE DISCLOSURE OF
AN EMPLOYEE'S NAME, UPON REQUEST, IS A "MEANS" OF FURTHERING THE
PERFORMANCE OF THE AGENCY'S WORK. SEE U.S. CUSTOMS SERVICE, REGION
VIII, SAN FRANCISCO, CALIFORNIA, SUPRA. ACCORDINGLY, PURSUANT TO
SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
2424.10(1981)), IT IS ORDERED THAT THE PORTION OF THE UNION'S PETITION
FOR REVIEW RELATING TO UNION PROPOSAL II BE, AND IT HEREBY IS,
DISMISSED. /3/
UNION PROPOSAL III
(B) THE FOLLOWING MATTERS ARE ALSO SPECIFICALLY EXCLUDED FROM THE
COVERAGE OF THIS ARTICLE
WHEN AN AFFECTED EMPLOYEE AT HIS OPTION, ELECTS TO APPEAL A STATUTORY
APPEAL PROCEDURE:
(3) ALL OTHER STATUTORY APPEALS PROCEDURES INCLUDING APPEALS TO THE
SPECIAL COUNSEL
CONTESTING ANY PROHIBITED PERSONNEL PRACTICE. (ONLY THE UNDERLINED
PORTION IS IN DISPUTE.)
IN AGREEMENT WITH THE AGENCY, THE AUTHORITY CONCLUDES THAT THE
UNDERLINED PORTION OF UNION PROPOSAL III IS INCONSISTENT WITH LAW, I.E.,
SECTION 7121(A)(1) OF THE STATUTE. /4/ THE UNDERLINED PORTION OF THIS
PROPOSAL BEARS NO MATERIAL DIFFERENCE FROM THE PROVISION FOUND TO BE
OUTSIDE THE DUTY TO BARGAIN IN AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2955 AND NATIONAL GUARD BUREAU, OFFICE OF THE
ADJUTANT GENERAL, DES MOINES, IOWA, 5 FLRA NO.86(1981). IN THAT CASE,
THE AUTHORITY FOUND THAT A PROVISION WHICH PURPORTED TO GRANT TO
BARGAINING UNIT EMPLOYEES THE OPTION TO CHOOSE EITHER THE NEGOTIATED
GRIEVANCE PROCEDURE OR A STATUTORY PROCEDURE WITH RESPECT TO ANY MATTER
COVERED BY THE GRIEVANCE PROCEDURE WAS OUTSIDE THE DUTY TO BARGAIN
BECAUSE IT WAS INCONSISTENT WITH SECTION 7121(A)(1) OF THE STATUTE.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5CFR 2424.10(1981)), IT IS ORDERED THAT THE PORTION OF THE
UNION'S PETITION FOR REVIEW RELATING TO UNION PROPOSAL III BE, AND IT
HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ THE AGENCY TAKES THE POSITION THAT UNION PROPOSAL I IN ITS
ENTIRETY IS BEFORE THE AUTHORITY FOR A NEGOTIABILITY DECISION. HOWEVER,
THE RECORD DISCLOSES THAT THE PARTIES ENTERED INTO AN AGREEMENT COVERING
THE FIRST PORTION (THE NONUNDERLINED PART) OF UNION PROPOSAL I; THUS,
THE DISPUTE AS TO THAT PORTION OF THE PROPOSAL HAS BEEN RENDERED MOOT.
/2/ SECTION 7106(B)(1) PROVIDES, IN RELEVANT PART, AS FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
(1) AT THE ELECTION OF THE AGENCY, ON THE . . . MEANS OF PERFORMING
WORK(.)
/3/ IN LIGHT OF THIS CONCLUSION, THE AUTHORITY FINDS IT UNNECESSARY
TO ADDRESS THE AGENCY'S CONTENTION THAT THE DISPUTED LANGUAGE IN THE
PROPOSAL VIOLATES THE FREEDOM OF INFORMATION ACT, 5 U.S.C. 552.
/4/ SECTION 7121(A)(1) PROVIDES:
SEC. 7121. GRIEVANCE PROCEDURES
(A)(1) EXCEPT AS PROVIDED IN PARAGRAPH (2) OF THIS SUBSECTION, ANY
COLLECTIVE BARGAINING
AGREEMENT SHALL PROVIDE PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES,
INCLUDING QUESTIONS OF
ARBITRABILITY. EXCEPT AS PROVIDED IN SUBSECTIONS (D) AND (E) OF THIS
SECTION, THE PROCEDURES
SHALL BE THE EXCLUSIVE PROCEDURES FOR RESOLVING GRIEVANCES WHICH FALL
WITHIN ITS COVERAGE.
9 FLRA 70; FLRA O-NG-293; AUGUST 31, 1982.
NATIONAL TREASURY EMPLOYEES UNION
(UNION)
AND
DEPARTMENT OF THE TREASURY,
U.S. CUSTOMS SERVICE
(ACTIVITY)
CASE NO. O-NG-293
(9 FLRA NO. 70)
ORDER DENYING MOTION FOR RECONSIDERATION
THIS CASE IS BEFORE THE AUTHORITY AT THIS TIME ON A MOTION FILED BY
THE ACTIVITY ON AUGUST 23, 1982, SEEKING RECONSIDERATION OF THE
AUTHORITY'S DECISION AND ORDER OF JULY 21, 1982. FOR THE REASON SET
FORTH BELOW, THE MOTION MUST BE DENIED.
SECTION 2429.17 OF THE AUTHORITY'S RULES AND REGULATIONS, EFFECTIVE
SEPTEMBER 10, 1981, PROVIDES, IN PERTINENT PART:
SEC. 2429.17 RECONSIDERATION.
AFTER A FINAL DECISION OR ORDER OF THE AUTHORITY HAS BEEN ISSUED, A
PARTY TO THE PROCEEDING
BEFORE THE AUTHORITY WHO CAN ESTABLISH IN ITS MOVING PAPERS
EXTRAORDINARY CIRCUMSTANCES FOR SO
DOING, MAY MOVE FOR RECONSIDERATION OF SUCH FINAL DECISION OR ORDER.
THE MOTION SHALL BE
FILED WITHIN 10 DAYS AFTER SERVICE OF THE AUTHORITY'S DECISION OR
ORDER . . . .
THE AUTHORITY'S -DECISION AND ORDER WAS DATED AND SERVED ON THE UNION
BY MAIL ON JULY 21, 1982. THEREFORE, UNDER SECTION 2429.17 OF THE
AUTHORITY'S RULES AND REGULATIONS, AND SECTIONS 2429.17 OF THE
AUTHORITY'S RULES AND REGULATIONS, AND SECTIONS 2429.21 AND 2429.22,
WHICH ARE ALSO APPLICABLE TO THE COMPUTATION OF THE TIME LIMIT HERE
INVOLVED, THE ACTIVITY'S MOTION FOR RECONSIDERATION WAS DUE IN THE
NATIONAL OFFICE OF THE AUTHORITY BEFORE THE CLOSE OF BUSINESS ON AUGUST
9, 1982. SINCE, AS INDICATED ABOVE, THE ACTIVITY'S MOTION WAS NOT FILED
UNTIL AUGUST 23, 1982, IT IS CLEARLY UNTIMELY AND MUST BE DENIED.
ACCORDINGLY, FOR THE REASON SET FORTH ABOVE,
IT IS ORDERED THAT THE ACTIVITY'S MOTION FOR RECONSIDERATION IN THIS
CASE BE, AND IT HEREBY IS, DENIED.
FOR THE AUTHORITY.
ISSUED, WASHINGTON, D.C., AUGUST 31, 1982
JAMES J. SHEPARD, EXECUTIVE DIRECTOR
9 FLRA 157; FLRA O-NG-659; AUGUST 31, 1982.
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1430
(UNION)
AND
DEPARTMENT OF THE NAVY, NORTHERN
DIVISION, U.S. NAVAL BASE,
PHILADELPHIA, PENNSYLVANIA
(AGENCY)
CASE NO. O-NG-659
ORDER DISMISSING PETITION FOR REVIEW
THIS CASE IS BEFORE THE AUTHORITY PURSUANT TO SECTION 7105(A)(2)(E)
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE AND SECTION
2424.1 OF THE AUTHORITY'S RULES AND REGULATIONS ON A PETITION FOR REVIEW
OF NEGOTIABILITY ISSUES FILED BY THE UNION. FOR THE REASONS INDICATED
BELOW, IT HAS BEEN DETERMINED THAT THE UNION'S PETITION MUST BE
DISMISSED.
FROM THE SUBMISSION OF THE PARTIES IN THE RECORD BEFORE THE
AUTHORITY, IT APPEARS THAT DURING THE TERM OF THE PARTIES' NEGOTIATED
AGREEMENT, THE AGENCY AND THE UNION AGREED TO INSTITUTE A NEW APPROVAL
PROCEDURE FOR INCENTIVE AWARDS, WHICH WOULD SERVE TEMPORARILY, ON A
TRIAL BASIS, AS A SUBSTITUTE FOR THE APPROVAL PROCEDURE FOR INCENTIVE
AWARDS, WHICH WOULD SERVE TEMPORARILY, ON A TRIAL BASIS, AS A SUBSTITUTE
FOR THE APPROVAL PROCEDURE SET FORTH IN THEIR CONTRACT. AFTER THE TRIAL
PERIOD WAS COMPLETED, THE AGENCY PROPOSED THAT THE SUBSTITUTE PROCEDURE
CONTINUE IN EFFECT FOR ANOTHER YEAR. THE UNION DID NOT AGREE AND THE
INSTANT DISPUTE BETWEEN THE PARTIES AROSE.
AFTER EFFORTS OF THE FEDERAL MEDIATION AND CONCILIATION SERVICE TO
RESOLVE THE DISPUTE PROVED UNSUCCESSFUL, THE UNION FILED A REQUEST FOR
ASSISTANCE WITH THE FEDERAL SERVICE IMPASSES PANEL. IN RESPONSE TO A
REQUEST FROM THE PANEL, THE AGENCY SET FORTH PROPOSALS TO BE SUBSTITUTED
FOR THE PERTINENT CONTRACT PROVISION. THE AGENCY INDICATED THAT THE
REASON FOR WANTING TO MAKE THE CHANGE WAS THE ASSERTED OVERALL SUCCESS
OF THE TRIAL PROGRAM. THE UNION, ON THE OTHER HAND, CONTENDED THAT IT
HAD NO DUTY TO BARGAIN WITH THE AGENCY ON THE MATTER, AS THE PROVISION
IN THE PARTIES' CONTRACT GOVERNING INCENTIVE AWARD PROCEDURES WAS STILL
IN EFFECT, AND THE CONTRACT COULD NOT BE REOPENED FOR NEGOTIATIONS
EXCEPT BY MUTUAL CONSENT OF THE PARTIES OR BY REASON OF A CHANGE IN LAW
OR REGULATION SUBSTANTIALLY AFFECTING THE CONTRACT. THE PANEL DECLINED
TO ASSERT JURISDICTION OVER THE MATTER IN VIEW OF THE THRESHOLD QUESTION
CONCERNING THE UNION'S OBLIGATION TO BARGAIN. THE UNION THEN FILED THE
INSTANT PETITION FOR REVIEW WITH THE AUTHORITY.
IT APPEARS THAT THE ESSENCE OF THE DISPUTE BETWEEN THE PARTIES IN
THIS CASE IS NOT A QUESTION OF NEGOTIABILITY BUT, RATHER, A QUESTION OF
THE UNION'S OBLIGATION TO BARGAIN ON THE SUBSTITUTE INCENTIVE AWARDS
PROCEDURE IN THE CIRCUMSTANCES DESCRIBED, OR A QUESTION OF THE
INTERPRETATION AND APPLICATION OF THE RELEVANT PROVISIONS IN THE
PARTIES' AGREEMENTS. TO THE EXTENT THAT THE DISPUTE INVOLVES A QUESTION
OF THE UNION'S OBLIGATION TO BARGAIN ON THE AGENCY'S PROPOSAL, THE
PROPER FORUM IN WHICH TO RESOLVE SUCH A QUESTION IS THROUGH UNFAIR LABOR
PRACTICE PROCEDURES AND NOT NEGOTIABILITY CASE PROCEDURES. (SEE, E.G.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND
OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 7 FLRA NO. 91(1982)).
TO THE EXTENT THAT THE CASE INVOLVES A QUESTION OF THE INTERPRETATION
AND APPLICATION OF THE PARTIES' AGREEMENTS, HERE AGAIN A NEGOTIABILITY
APPEAL IS NOT THE PROPER FORUM TO RESOLVE SUCH QUESTIONS. RATHER, THE
PARTIES MIGHT WISH TO UTILIZE THE PROCEDURES THEY MAY HAVE ADOPTED IN
THEIR AGREEMENTS FOR RESOLVING SUCH ISSUES. (SEE. E.G., AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1931 AND DEPARTMENT
OF THE NAVY, NAVAL WEAPONS STATION, CONCORD, CALIFORNIA, 2 FLRA
182(1979)).
BASED ON THE FOREGOING, THE UNION'S PETITION FOR REVIEW DOES NOT
PRESENT ISSUES WHICH THE AUTHORITY CAN APPROPRIATELY RESOLVE AT THIS
TIME UNDER SECTION 7117 OF THE STATUTE AND PART 2424 OF THE RULES AND
REGULATIONS. ACCORDINGLY, WITHOUT PASSING ON THE MERITS OF THE DISPUTE
AND APART FROM OTHER CONSIDERATIONS,
IT IS HEREBY ORDERED THAT THE UNION'S PETITION FOR REVIEW BE, AND IT
HEREBY IS, DISMISSED.
FOR THE AUTHORITY.
ISSUED, WASHINGTON, D.C., AUGUST 31, 1982
JAMES J. SHEPARD, EXECUTIVE DIRECTOR
9 FLRA 156; FLRA O-AR-429; AUGUST 31, 1982.
DEPARTMENT OF THE NAVY,
CHARLESTON NAVAL SHIPYARD
(ACTIVITY)
AND
PLANNERS, ESTIMATORS AND
PROGRESSMEN'S ASSOCIATION,
LOCAL NO. 8
(UNION)
CASE NO. O-AR-429
ORDER DISMISSING EXCEPTIONS
THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR JAMES J. SHERMAN FILED BY THE UNION PURSUANT TO SECTION
7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE AND
SECTION 2425.1 OF THE AUTHORITY'S RULES AND REGULATIONS. FOR THE
REASONS STATED BELOW, THE UNION'S EXCEPTIONS MUST BE DISMISSED AS
UNTIMELY.
UNDER SECTION 7122(B) OF THE STATUTE AND SECTION 2425.1(B) OF THE
AUTHORITY'S RULES AND REGULATIONS, THE TIME LIMIT FOR FILING AN
EXCEPTION TO AN ARBITRATION AWARD IS THIRTY DAYS BEGINNING ON AND
INCLUDING THE DATE ON THE AWARD. ADDITIONALLY, UNDER SECTION 2429.21 OF
THE RULES AND REGULATIONS, WHENEVER THE REGULATIONS REQUIRE THE FILING
OF A DOCUMENT, SUCH DOCUMENT MUST BE RECEIVED BY THE AUTHORITY BEFORE
THE CLOSE OF BUSINESS ON THE LAST DAY OF THE TIME LIMIT.
THE ARBITRATOR'S AWARD IN THIS CASE, AS INCLUDED IN THE UNION'S
SUBMISSION, IS DATED JULY 19, 1982. THEREFORE, UNDER THE ABOVE-CITED
PROVISIONS, THE UNION'S EXCEPTIONS WERE DUE IN THE NATIONAL OFFICE OF
THE AUTHORITY BEFORE THE CLOSE OF BUSINESS ON AUGUST 17, 1982. HOWEVER,
THE UNION'S EXCEPTIONS WERE NOT FILED WITH THE AUTHORITY UNTIL AUGUST
18, 1982. IN THAT REGARD, THE AUTHORITY IS NOT EMPOWERED TO WAIVE OR
EXTEND THE TIME LIMIT FOR FILING EXCEPTIONS TO ARBITRATION AWARDS.
ACCORDINGLY, AS THE UNION'S EXCEPTIONS WERE UNTIMELY FILED, THE
EXCEPTIONS ARE HEREBY DISMISSED.
FOR THE AUTHORITY.
ISSUED, WASHINGTON, D.C., AUGUST 31, 1982
JAMES J. SHEPARD, EXECUTIVE DIRECTOR
9 FLRA 155; FLRA 0-AR-407; AUGUST 31, 1982.
SAN ANTONIO AIR LOGISTICS CENTER,
KELLY AIR FORCE BASE, TEXAS
ACTIVITY
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1617, AFL-CIO
UNION
CASE NO. O-AR-407
ORDER DISMISSING EXCEPTIONS
THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
ARBITRATOR BERNARD MARCUS FILED BY THE AGENCY UNDER SECTION 712,(-) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND
PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS. THE UNION DID NOT
FILE AN OPPOSITION.
THE DISPUTE IN THIS MATTER CONCERNS THE PAY OF A GROUP OF EMPLOYEES
WHO WERE SELECTED FOR AN UPWARD MOBILITY TRAINING PROGRAM. THE
EMPLOYEES VOLUNTARILY ACCEPTED A REDUCTION IN GRADE FROM HIGHER LEVEL
WAGE GRADE POSITIONS AND WERE GRANTED PAY RETENTION BENEFITS PURSUANT TO
5 U.S.C. 5363. IN ACCORDANCE WITH THAT SECTION THE ACTIVITY ONLY
GRANTED THE EMPLOYEES A PARTIAL AMOUNT OF THE 1981 COMPARABILITY
INCREASE IN SCHEDULED PAY RATES. A GRIEVANCE WAS FILED PROTESTING THIS
ACTION AND WAS ULTIMATELY SUBMITTED TO ARBITRATION.
THE ACTIVITY CONTENDED BEFORE THE ARBITRATOR THAT THE MATTER WAS NOT
ARBITRABLE BECAUSE THE IDENTICAL ISSUE HAD BEEN RAISED IN ANOTHER
ARBITRATION AND THAT THE AWARD IN THAT CASE WAS CURRENTLY PENDING ON
APPEAL BEFORE THE AUTHORITY. THE ACTIVITY ALSO CONTENDED, AS IT HAD IN
THE PREVIOUS CASE, THAT THE MATTER WAS EXCLUDED FROM GRIEVANCE AND
ARBITRATION PROCEDURES BY 5 U.S.C. 5366(B)(1). /1/
THE ARBITRATOR ACKNOWLEDGED THAT THE PARTIES HAD A VIRTUALLY
IDENTICAL CASE PENDING BEFORE THE AUTHORITY (CASE NO. O-AR-186) IN WHICH
THE AGENCY SIMILARLY CLAIMED THAT THE ARBITRATOR'S AWARD WAS DEFICIENT
BECAUSE THE GRIEVANCE PERTAINED TO AN ACTION BARRED FROM GRIEVANCE
ARBITRATION BY 5366(B)(1). NOTING THAT THE AUTHORITY'S RESOLUTION OF
THIS ISSUE WOULD BE BINDING AND DISPOSITIVE, THE ARBITRATOR DETERMINED
THAT RETENTION OF JURISDICTION AND RESERVATION OF DECISION WAS THE MOST
PRUDENT COURSE OF ACTION. ACCORDINGLY, AS HIS AWARD THE ARBITRATOR
RULED THAT THE FACT THAT AN IDENTICAL CASE WAS PENDING BEFORE THE
AUTHORITY DID NOT PRECLUDE ARBITRATION OF THE ONE BEFORE HIM, BUT HE
RESERVED RULING ON THE MERITS PENDING THE DECISION OF THE AUTHORITY IN
CASE NO. O-AR-186.
IN ITS EXCEPTION, THE AGENCY CONTENDS, AS IT HAS ESSENTIALLY
CONTENDED IN ITS EXCEPTIONS IN CASE NO. O-AR-186 CURRENTLY PENDING
BEFORE THE AUTHORITY, THAT THE AWARD FINDING THE GRIEVANCE ARBITRABLE IS
CONTRARY TO SECTION 5366(B)(1).
SECTION 2429.11 OF THE AUTHORITY'S RULES AND REGULATIONS PROVIDES:
"THE AUTHORITY AND THE GENERAL COUNSEL ORDINARILY WILL NOT CONSIDER
INTERLOCUTORY APPEALS." IN THIS CASE THE AGENCY'S APPEAL CONTENDING THE
AWARD IS CONTRARY TO 5 U.S.C. 5366(B)(1) IS CLEARLY INTERLOCUTORY. THE
ARBITRATOR SPECIFICALLY REFUSED TO ADDRESS THE QUESTION OF THE
APPLICABILITY OF SECTION 5366(B)(1) AND RESERVED RULING ON THE MERITS OF
THE CASE UNTIL AFTER THE AUTHORITY REVIEW.
ACCORDINGLY, THE AGENCY'S EXCEPTIONS ARE HEREBY DISMISSED AS
INTERLOCUTORY. HOWEVER, THE DISMISSAL IS WITHOUT PREJUDICE TO THE
RENEWAL OF THE AGENCY'S CONTENTIONS IN EXCEPTIONS DULY FILED WITH THE
ARBITRATOR.
FOR THE AUTHORITY.
ISSUED, WASHINGTON, D.C., AUGUST 31, 1982
JAMES J. SHEPARD, EXECUTIVE DIRECTOR
/1/ 5 U.S.C. 5366(B)(1) PROVIDES THAT "ANY ACTION WHICH IS THE BASIS
OF AN INDIVIDUAL'S ENTITLEMENT TO BENEFITS UNDER (5 U.S.C. 5362-5363)"
IS NOT GRIEVABLE UNDER A GRIEVANCE PROCEDURE NEGOTIATED UNDER THE
STATUTE.
9 FLRA 154; FLRA O-AR-127; AUGUST 31, 1982.
VETERANS ADMINISTRATION
HOSPITAL
ACTIVITY
AND
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL NO. 2281
UNION
CASE NO. O-AR-127
DECISION
THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR PRESTON J. MOORE FILED BY THE UNION UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND
PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS. THE AGENCY DID NOT
FILE AN OPPOSITION.
ACCORDING TO THE ARBITRATOR'S AWARD, THE GRIEVANCE IN THIS MATTER
AROSE WHEN THE GRIEVANT WAS TERMINATED FROM EMPLOYMENT DURING HER
PROBATIONARY PERIOD FOR TAKING EXCESSIVE LEAVE. THE GRIEVANCE WAS
ULTIMATELY SUBMITTED TO ARBITRATION.
THE ARBITRATOR STATED THE ISSUES AS FOLLOWS:
NO. 1. IS THE MATTER ARBITRABLE?
NO. 2. IF SO, DID THE HOSPITAL VIOLATE THE AGREEMENT BY TERMINATING
A PROBATIONARY EMPLOYEE WITHOUT ESTABLISHING JUST CAUSE? IF SO, WHAT IS
THE PROPER REMEDY?
IN HIS AWARD, THE ARBITRATOR FIRST RULED THAT THE MATTER WAS
ARBITRABLE ON THE BASIS THAT CERTAIN PROCEDURAL RIGHTS WITH RESPECT TO
REMOVALS ARE GRANTED PROBATIONERS BY THE FEDERAL PERSONNEL MANUAL AND
THAT "SUCH RIGHTS ARE ARBITRABLE." HOWEVER, WITH RESPECT TO THE MERITS
OF THE GRIEVANCE, AND RESPONDING TO THE UNION'S ARGUMENT THAT THE
DISCHARGE HAD NOT BEEN FOR "JUST CAUSE" AS REQUIRED BY THE PARTIES'
COLLECTIVE BARGAINING AGREEMENT, THE ARBITRATOR FOUND THAT "BEING A
PROBATIONARY EMPLOYEE, THE GRIEVANT DOES NOT HAVE THE RIGHT TO THE
GRIEVANCE PROCEDURE" AND THUS DOES NOT HAVE THE RIGHT TO HAVE HER
REMOVAL ADJUDICATED UNDER THE JUST CAUSE PROVISIONS OF THE AGREEMENT.
HE BASED THIS FINDING ON SECTION 7121(C)(4) OF THE STATUTE WHICH STATES:
(C) THE PRECEDING SUBSECTIONS OF THIS SECTION SHALL NOT APPLY WITH
RESPECT TO ANY GRIEVANCE CONCERNING --
(4) ANY EXAMINATION, CERTIFICATION, OR APPOINTMENT(.)
NOTING THAT THE PROBATIONARY PERIOD IS CONSIDERED TO BE A PART OF THE
EXAMINING PROCESS UNDER PROVISIONS OF THE FEDERAL PERSONNEL MANUAL, /1/
THE ARBITRATOR FOUND THAT THE ACTIVITY HAD THE RIGHT TO TERMINATE A
PROBATIONARY EMPLOYEE SUCH AS THE GRIEVANT "WITHOUT BEING REQUIRED TO
ESTABLISH JUST CAUSE UNDER THE GRIEVANCE PROCEDURE." HE ALSO FOUND THAT
"ALTHOUGH A PROBATIONARY EMPLOYEE NEED NOT BE TERMINATED FOR JUST CAUSE,
THE EMPLOYER MUST ESTABLISH COMPLIANCE WITH THE FEDERAL PERSONNEL MANUAL
AND THE DIRECTIVES OF THE OFFICE OF PERSONNEL MANAGEMENT." THE
ARBITRATOR CONCLUDED THAT THE PROCEDURAL ASPECTS OF THE GRIEVANT'S
TERMINATION WERE IN COMPLIANCE WITH THOSE AUTHORITIES AND THAT THERE WAS
SUFFICIENT REASON TO FIND THAT HER TAKING OF EXCESSIVE LEAVE MADE HER
NOT QUALIFIED FOR CONTINUED SERVICE. HE THEREFORE DENIED THE GRIEVANCE.
THE UNION, IN ITS EXCEPTION, CONTENDS, INTER ALIA, THAT THE AWARD IS
DEFICIENT BECAUSE IT IS CONTRARY TO SECTION 7121(C)(4) OF THE STATUTE.
THE AUTHORITY AGREES THAT THE AWARD IN THIS CASE IS DEFICIENT. THE
ARBITRATOR DETERMINED THAT THE GRIEVANT WAS PRECLUDED FROM GRIEVING THE
"JUST CAUSE" OF HER TERMINATION UNDER THE NEGOTIATED GRIEVANCE PROCEDURE
SOLELY BY THE LANGUAGE IN SECTION 7121(C)(4) OF THE STATUTE WHICH
EXCLUDES GRIEVANCES CONCERNING "ANY EXAMINATION, CERTIFICATION, OR
APPOINTMENT." IN THIS RESPECT, THE AWARD IS SIMILAR TO THE AWARD
REVIEWED BY THE AUTHORITY IN NATIONAL COUNCIL OF FIELD LABOR LOCALS OF
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND UNITED
STATES DEPARTMENT OF LABOR, 4 FLRA NO. 51(1980). IN THAT CASE THE
ARBITRATOR'S AWARD WHICH HELD THAT THE LANGUAGE OF SECTION 7121(C)(4),
EXCLUDING GRIEVANCES CONCERNING "ANY EXAMINATION, CERTIFICATION, OR
APPOINTMENT," PROSCRIBES THE USE OF A NEGOTIATED GRIEVANCE PROCEDURE AND
ARBITRATION TO GRIEVE THE SEPARATION OF A PROBATIONARY EMPLOYEE. THE
AUTHORITY DETERMINED THAT
NOTHING IN THE LANGUAGE OF SECTION 7121(C)(4), OR IN THE LEGISLATIVE
HISTORY OF THE
STATUTE, (INDICATES) THAT CONGRESS INTENDED TO EXCLUDE GRIEVANCES OR
ARBITRATION OVER THE
TERMINATION OF PROBATIONERS WHEN IT EXCLUDED GRIEVANCES RESPECTING
ANY EXAMINATION,
CERTIFICATION, OR APPOINTMENT FROM THE SCOPE OF PERMISSIBLE COVERAGE
BY NEGOTIATED GRIEVANCE
PROCEDURES. TO THE CONTRARY, THE STATUTE IN NO WAY MANDATES LESSER
TREATMENT FOR PROBATIONERS
THAN FOR OTHER EMPLOYEES.
THUS, WHILE THE PARTIES MAY MUTUALLY AGREE TO LIMIT THE SCOPE OF
THEIR NEGOTIATED GRIEVANCE PROCEDURE OR OTHER PROVISIONS OF THEIR
AGREEMENT AS THEY MAY APPLY TO PROBATIONERS, SUCH LIMITATIONS ARE NOT
IMPOSED STATUTORILY BY SECTION 7121(C)(4) OF THE STATUTE. SEE NATIONAL
COUNCIL OF FIELD LABOR LOCALS AT 7. /2/ THEREFORE, TO THE EXTENT THAT
IT DENIES THE GRIEVANCE ON THE BASIS THAT SECTION 7121(C)(4) OF THE
STATUTE PRECLUDES PROBATIONERS FROM GRIEVING THE JUST CAUSE OF A REMOVAL
THROUGH A NEGOTIATED GRIEVANCE PROCEDURE, THE AWARD IS DEFICIENT AS
CONTRARY TO SECTION 7121.
ACCORDINGLY, PURSUANT TO SECTION 7122(A) OF THE STATUTE AND SECTION
2425.4 OF THE AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S AWARD,
TO THE EXTENT INDICATED ABOVE, IS SET ASIDE. /3/
ISSUED, WASHINGTON, D.C., AUGUST 31, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
LEON B. APPLEWHAITE, MEMBER, DISSENTING:
I RESPECTFULLY DISSENT IN THE ULTIMATE DECISION REACHED BY MY FELLOW
MEMBERS IN THIS CASE. NOTHING IN THE LANGUAGE OF SECTION 7121(C)(4) OR
IN THE LEGISLATIVE HISTORY OF THE STATUTE INDICATES THAT CONGRESS
INTENDED TO INCLUDE ANY GRIEVANCE RELATING TO THE MERITS OF THE
TERMINATION OF PROBATIONARY EMPLOYEES, EITHER THROUGH THE NEGOTIATED
GRIEVANCE PROCEDURE OR ARBITRATION. THE STATUTE SPECIFICALLY EXCLUDES
GRIEVANCES RESPECTING "ANY EXAMINATION, CERTIFICATION, OR APPOINTMENT"
FROM THE SCOPE OF PERMISSIBLE COVERAGE BY NEGOTIATED GRIEVANCE
PROCEDURES. THE ARBITRATOR, IN CONSIDERING THE GRIEVANCE OF A
PROBATIONARY EMPLOYEE, MUST BE LIMITED TO PROCEDURAL ISSUES AND NOT THE
SUBSTANTIVE MERITS OF THE GRIEVANCE.
ARBITRATION OF GRIEVANCES INVOLVING PROBATIONARY EMPLOYEES ON
SUBSTANTIVE ISSUES APPEARS TO BE CLEARLY INCONSISTENT WITH THE INTENT OF
CONGRESS AS REFLECTED IN THE STATUTORY SCHEME. TENURED EMPLOYEES ARE
PERMITTED THE OPTION, UNDER SECTION 7121 OF THE STATUTE, TO ACHIEVE,
THROUGH A NEGOTIATED GRIEVANCE PROCEDURE, AN EQUIVALENT MEASURE OF
PROTECTION AS THAT WHICH CONGRESS HAS GRANTED THEM IN A STATUTORY
APPEALS PROCEDURE OR UNDER TITLE VII OF THE CIVIL SERVICE REFORM ACT
(CSRA).
IN THE MAJORITY DECISION, MY FELLOW MEMBERS ARE, IN FACT, PROVIDING
PROBATIONARY EMPLOYEES WITH NEGOTIATED AND STATUTORY PROTECTION OF THE
SCOPE EQUIVALENT TO THAT WHICH CONGRESS DELIBERATELY DENIED THEM UNDER
THE CSRA. SUCH PROTECTION WAS GRANTED TO TENURED COMPETITIVE /4/
EMPLOYEES BY CONGRESSIONAL AFFIRMATION OF THE PRESIDENTIAL INTENT.
MANAGERS ARE WEAKENED IN THEIR ABILITY TO REWARD THE BEST AND MOST
TALENTED PEOPLE -- AND
TO FIRE THOSE FEW WHO ARE UNWILLING TO WORK.
THE SAD FACT IS THAT IT IS EASIER TO PROMOTE AND TRANSFER INCOMPETENT
EMPLOYEES THAN TO GET
RID OF THEM. A SPEEDIER AND FAIRER DISCIPLINARY SYSTEM WILL CREATE A
CLIMATE IN WHICH
MANAGERS MAY DISCHARGE NON-PERFORMING EMPLOYEES-- USING DUE PROCESS .
. . .
THE LEGISLATION I AM PROPOSING TODAY WOULD GIVE ALL COMPETITIVE
EMPLOYEES A STATUTORY RIGHT
OF APPEAL.
PRESIDENT CARTER IN HIS SUBMISSION OF THE CSRA TO CONGRESS CLEARLY
STATED THAT THE PURPOSES OF THE ACT WERE TO ATTAIN MORE EFFECTIVE
GOVERNMENT OPERATIONS, EFFICIENCY OF GOVERNMENT, AND LESS CUMBERSOME AND
BURDENSOME PROCEDURES FOR THE REMOVAL OF UNSATISFACTORY EMPLOYEES.
(T)HE SYSTEM HAS SERIOUS DIFFICULTIES. IT HAS BECOME A BUREAUCRATIC
MAZE WHICH NEGLECTS
MERIT, TOLERATES POOR PERFORMANCE, PERMITS ABUSE OF LEGITIMATE
EMPLOYEE RIGHTS, AND MIRES
EVERY PERSONNEL ACTION IN RED TAPE, DELAY AND CONFUSION.
IT IS APPARENT THAT IN THE ENACTMENT OF THE CSRA CONGRESS INTENDED
MANAGEMENT TO RETAIN THE FLEXIBILITY TO EXPEDITIOUSLY TERMINATE
EMPLOYEES WHOSE PERFORMANCE OR CONDUCT WAS NOT ACCEPTABLE. IN THIS
REGARD, CONGRESS EXPRESSLY DENIED PROBATIONARY EMPLOYEES SIGNIFICANT
PROTECTIONS WHICH ARE GRANTED TO NON-PROBATIONARY EMPLOYEES, I.E.,
TENURED EMPLOYEES. THIS WAS DONE IN COMPARABLE PROVISIONS FOR OTHER
AGENCIES CREATED WITHIN THE SAME SPECTRUM OF THE CSRA, THAT IS, FOR THE
MERIT SYSTEMS PROTECTION BOARD (MSPB) AND EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION (EEOC). UNDER THOSE PROVISIONS PROBATIONARY EMPLOYEES ARE
EXCLUDED FROM THE COVERAGE OF STATUTORY APPEAL PROCEDURES THROUGH WHICH
NON-PROBATIONERS MAY APPEAL REMOVALS OR REDUCTIONS IN GRADE FOR
UNACCEPTABLE PERFORMANCE, /5/ AND SERIOUS ADVERSE ACTIONS /6/ TO THE
MSPB.
IN SECTIONS 4303 AND 7513 OF THE CSRA, CONGRESS SPECIFICALLY
ESTABLISHED STATUTORY PROCEDURES FOR TENURED EMPLOYEES TO APPEAL VARIOUS
ACTIONS TO THE MSPB INCLUDING, AS HERE RELEVANT, TERMINATIONS BASED ON
EITHER UNACCEPTABLE PERFORMANCE OR CONDUCT. FURTHER, CONGRESS PROVIDED
IN SECTION 7121 OF THE STATUTE, THAT SUCH TENURED EMPLOYEES, WHO ARE
COVERED BY SECTIONS 4303 AND 7511, AT THEIR OPTION CAN PURSUE AND APPEAL
THE ADVERSE ACTION THROUGH A NEGOTIATED GRIEVANCE PROCEDURE IF ONE IS
AVAILABLE. CONGRESS EXPRESSLY PROVIDED THAT IF AN EMPLOYEE OPTED FOR
THE NEGOTIATED GRIEVANCE , PROCEDURE, /7/ THE ARBITRATOR MUST APPLY THE
SAME BURDEN OF PROOF AND STANDARD OF REVIEW AS REQUIRED OF THE MSPB.
THE STATUTORY APPEAL PROCEDURES ARE ONLY AVAILABLE TO TENURED EMPLOYEES
AND, THEREFORE, THE AFOREMENTIONED STANDARDS WOULD ONLY APPLY TO TENURED
EMPLOYEES. CONSEQUENTLY, PROBATIONARY EMPLOYEES DO NOT FALL WITHIN THE
COVERAGE OF SECTION 7121(E). THE INTENDED EFFECT OF THIS LIMITATION IS
TO PROMOTE CONSISTENCY, I.E., TO PRECLUDE EMPLOYEES FROM ACHIEVING A
GREATER MEASURE OF PROTECTION UNDER ONE PROCEDURE THAN THE OTHER. /8/
THIS STATUTORY SCHEME FURTHERS A MAJOR PURPOSE OF THE CSRA: TO EASE THE
PROCESS FOR MANAGEMENT TO REMOVE UNFIT EMPLOYEES. /9/ THAT IS, CONGRESS
ESTABLISHED FOR TENURED EMPLOYEES THE PARTICULAR DEGREE OF PROTECTION IT
CONSIDERED APPROPRIATE, UNDER APPLICABLE STATUTORY PROCEDURES, AND
CORRELATIVELY PROHIBITED NEGOTIATED PROCEDURES FROM AFFORDING SUCH
EMPLOYEES ANY GREATER PROTECTION. IT IS CLEAR, OF COURSE, THAT CONGRESS
INTENDED THE CSRA TO ESTABLISH A BALANCE BETWEEN NECESSARY PROTECTION
FOR EMPLOYEES AND NECESSARY AUTHORITY FOR MANAGEMENT. /10/ IT IS
EQUALLY APPARENT THAT BE MEANS OF THE STATUTORY SCHEME JUST DISCUSSED
CONGRESS AIMED TO ASSURE THAT, IN STRIKING THIS BALANCE, THE PROTECTION
FOR TENURED EMPLOYEES BEING TERMINATED FOR UNACCEPTABLE PERFORMANCE OR
CONDUCT AVAILABLE THROUGH NEGOTIATED PROCEDURES WOULD NOT HAVE THE
POTENTIAL TO SUBORDINATE THE POWER AND FLEXIBILITY PROVIDED TO
MANAGEMENT UNDER THE CSRA.
CONGRESS WAS MINDFUL OF THE STATUS OF EXISTING LAW AND REGULATION
CONCERNING EMPLOYEES SERVING A PROBATIONARY OR TRIAL PERIOD UNDER AN
INITIAL APPOINTMENT. THE AUTHORIZATION FOR A PROBATIONARY PERIOD IS
CONTAINED IN 5 U.S.C. SEC. 3321, WHICH PROVIDES IN RELEVANT PART:
(A) THE PRESIDENT MAY TAKE SUCH ACTION, . . . AS SHALL PROVIDE . . .
FOR A PERIOD OF
PROBATION--
(1) BEFORE AN APPOINTMENT IN THE COMPETITIVE SERVICE BECOMES FINAL(.)
THE GOVERNMENT-WIDE REGULATIONS WHICH PROVIDE FOR IMPLEMENTATION OF
SUCH A PROBATIONARY PERIOD, 5 CFR PART 315, MANDATE, IN PART, THAT ALL
NEW APPOINTEES TO CAREER POSITIONS IN THE FEDERAL SERVICE MUST SERVE A
PROBATIONARY PERIOD OF ONE YEAR.
IN THE CASE OF NATIONAL COUNCIL OF FIELD LABOR LOCALS OF THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND THE UNITED STATES
DEPARTMENT OF LABOR, 4 FLRA NO. 51 (1980), THE UNION FILED AN EXCEPTION
TO AN ARBITRATION AWARD WHICH INVOLVED A GRIEVANCE CONCERNING THE
TERMINATION OF A PROBATIONARY EMPLOYEE. THE ARBITRATOR DISMISSED THE
GRIEVANCE IN ITS ENTIRETY HOLDING THAT THE GRIEVANCE HAD BEEN RENDERED
NON-GRIEVABLE AND NON-ARBITRABLE, AS A MATTER OF LAW AFTER THE EFFECTIVE
DATE OF THE STATUTE, BY SECTION 7121(C)(4). THE AUTHORITY SET ASIDE THE
AWARD ON THE SOLE GROUND THAT THE ARBITRATOR'S INTERPRETATION OF SECTION
7121(C)(4) WAS IN ERROR. THE AUTHORITY CAREFULLY ANALYZED THE RELEVANT
LEGISLATIVE HISTORY OF THE EXCLUSION AND FOUND NO INDICATION THAT
CONGRESS INTENDED SECTION 7121(C)(4) TO PRECLUDE ALL GRIEVANCES
INVOLVING THE SEPARATION OF A PROBATIONARY EMPLOYEE FROM COVERAGE BY A
NEGOTIATED GRIEVANCE PROCEDURE.
NATIONAL COUNCIL, HOWEVER, IS NOT DISPOSITIVE OF THE PRESENT CASE.
THAT DECISION STANDS FOR THE PRINCIPLE THAT GRIEVANCES AND ARBITRATION,
WITH RESPECT TO THE PROCEDURAL ASPECTS OF THE TERMINATION OF A
PROBATIONARY EMPLOYEE, ARE NOT, AS A MATTER OF LAW, EXCLUDED FROM
NEGOTIATED PROCEDURES BY SECTION 7121(C)(4) OF THE STATUTE. THE ISSUE
IN THE PRESENT CASE, MORE SPECIFICALLY, IS WHETHER THE APPLICATION OF A
JUST CAUSE STANDARD BY WHICH AN ARBITRATOR COULD REVIEW THE MERITS OF
AGENCY ACTION WITH RESPECT TO SUCH GRIEVANCES IS INCONSISTENT WITH LAW.
EXAMINATION OF SECTION 7121 OF THE STATUTE IN ITS SCHEMATIC RELATIONSHIP
TO THE CSRA LEADS TO THE CONCLUSION THAT A JUST CAUSE STANDARD CANNOT BE
APPLIED TO THE TERMINATION OF PROBATIONARY EMPLOYEES AND, THEREFORE,
WOULD BE INCONSISTENT WITH LAW.
CONSEQUENTLY, GRIEVANCES CONCERNING THE TERMINATION OF PROBATIONARY
EMPLOYEES FOR UNACCEPTABLE PERFORMANCE OR CONDUCT WHICH DO NOT CHALLENGE
MANAGEMENT'S QUALITATIVE DECISION WOULD NOT BE EXCLUDED UNDER LAW AND,
THEREFORE, WOULD BE COVERED BY NEGOTIATED GRIEVANCE PROCEDURES UNLESS
THE PARTIES SPECIFICALLY NEGOTIATED THEIR EXCLUSION. /11/ THE
ARBITRATION OF ISSUES WHICH PERMITS IN REGARD TO THE TERMINATION OF
PROBATIONARY EMPLOYEES IS BEYOND THE SCOPE OF SECTION 7121. THIS TYPE
OF EXAMINATION WOULD AFFORD THE PROBATIONARY EMPLOYEE GREATER PROTECTION
UNDER THE NEGOTIATED GRIEVANCE PROCEDURE THAN INTENDED BY CONGRESS.
THE ARBITRATOR, IN THIS CASE, SPECIFICALLY REFUSED TO APPLY A JUST
CAUSE STANDARD IN DISMISSING THE GRIEVANCE OVER THE TERMINATION OF THE
PROBATIONARY EMPLOYEE. THE ARBITRATOR FOUND THAT "A PROBATIONARY
EMPLOYEE NEED NOT BE TERMINATED FOR JUST CAUSE(.)" THUS, THE
ARBITRATOR'S AWARD IS CONSISTENT WITH THE STATUTE AND CONSISTENT WITH
THE INTENT AND PURPOSE OF CONGRESS IN THE ENACTMENT OF SECTION 7121 OF
THE STATUTE AND TITLE VII OF THE CSRA AS REFLECTED IN THE RELEVANT
LEGISLATIVE HISTORY. INSOFAR AS THE ARBITRATOR, IN HIS DECISION,
REFUSED TO APPLY THE JUST CAUSE STANDARD TO THE REVIEW OF THE
SUBSTANTIVE ASPECTS OF MANAGEMENT'S QUALITATIVE ACTIONS, THE AWARD
SHOULD BE SUSTAINED.
ISSUED, WASHINGTON, D.C., AUGUST 31, 1982
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ FPM CHAPTER 315, SUBCHAPTER 8-1(A) STATES IN PERTINENT PART:
THE (OFFICE OF PERSONNEL MANAGEMENT) REGARDS THE PROBATIONARY PERIOD
DESCRIBED IN THIS SUBCHAPTER AS A FINAL AND HIGHLY SIGNIFICANT STEP IN
THE EXAMINING PROCESS.
/2/ FOR A FURTHER DETAILED EXPLICATION OF NATIONAL COUNCIL OF FIELD
LABOR LOCALS AND THE PERTINENT LEGISLATIVE HISTORY REFLECTING
CONGRESSIONAL INTENT IN THIS REGARD, SEE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL IMMIGRATION AND NATURALIZATION
SERVICE COUNCIL AND U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND
NATURALIZATION SERVICE, 8 FLRA NO. 75(1982) AT 20. SEE ALSO AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF
PERSONNEL MANAGEMENT, WASHINGTON, D.C., 9 FLRA NO. 78(1982).
/3/ IN VIEW OF THIS DECISION, IT IS NOT NECESSARY TO ADDRESS THE
UNION'S OTHER EXCEPTIONS TO THE AWARD.
/4/ FPM CHAPTER 315, SUBCHAPTER 3-3 PROVIDES: "THE EMPLOYEE ACQUIRES
COMPETITIVE STATUS UPON COMPLETION OF A PROBATIONARY PERIOD."
/5/ 5 U.S.C. 4303(F)(2).
/6/ 5 U.S.C. 7511(A)(1)(A).
/7/ 5 U.S.C. 7121(E) PROVIDES IN RELEVANT PART:
(E)(1) MATTERS COVERED UNDER SECTION 4303 AND 7512 OF THIS TITLE
WHICH ALSO FALL WITHIN THE
COVERAGE OF THE NEGOTIATED GRIEVANCE PROCEDURE MAY, IN THE DISCRETION
OF THE AGGRIEVED
EMPLOYEE, BE RAISED EITHER UNDER THE APPELLATE PROCEDURES OF SECTION
7701 OF THIS TITLE OR
UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, BUT NOT BOTH . . . .
(2) IN MATTERS COVERED UNDER SECTIONS 4303 AND 7512 OF THIS TITLE
WHICH HAVE BEEN RAISED
UNDER THE NEGOTIATED GRIEVANCE PROCEDURE IN ACCORDANCE WITH THIS
SECTION, AN ARBITRATOR SHALL
BE GOVERNED 9Y SECTION 7701(C)(1) OF THIS TITLE, AS APPLICABLE.
/8/ CIVIL SERVICE REFORM ACT OF 1978: CONFERENCE REPORT, H. REP.
NO. 95-1717, 95TH CONG., 2D SESS. 157(1978).
/9/ SEE E.G., 124 CONG. REC. H.9372 (DAILY ED. SEPT. 11, 1967)
(REMARKS OF REP. UDALL).
/10/ SEE, E.G., 124 CONG. REC. H. 9633 (DAILY ED. SEPT. 13, 1978)
(REMARKS OF REP. UDALL).
/11/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3669
AND VETERANS ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS, MINNESOTA, 3
FLRA 310(1980).
9 FLRA 153; FLRA O-NG-707; AUGUST 27, 1982.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2069
(UNION)
AND
DEPARTMENT OF THE AIR FORCE,
DOBBINS AIR FORCE BASE, GEORGIA
(ACTIVITY)
CASE NO. O-NG-707
ORDER DISMISSING PETITION FOR REVIEW
THIS CASE IS BEFORE THE AUTHORITY PURSUANT TO SECTION 7105(A)(2)(E)
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE AND SECTION
2424.1 OF THE AUTHORITY'S RULES AND REGULATIONS ON A PETITION FOR REVIEW
OF NEGOTIABILITY ISSUES FILED BY THE UNION.
FROM THE RECORD BEFORE THE AUTHORITY IT APPEARS THAT DURING THE
COURSE OF REVIEWING THE LOCAL PARTIES' AGREEMENT PURSUANT TO SECTION
7114(C) OF THE STATUTE, THE AGENCY ALLEGED CERTAIN PROVISIONS OF THE
AGREEMENT TO BE NONNEGOTIABLE BECAUSE THEY VIOLATED LAW, RULE OR
REGULATION. THE UNION THEN FILED THE INSTANT PETITION FOR REVIEW WITH
THE AUTHORITY SEEKING A DETERMINATION, PURSUANT TO SECTION 7117(C) OF
THE STATUTE, AS TO THE NEGOTIABILITY OF THE MATTER. SUBSEQUENTLY, THE
PARTIES REACHED AGREEMENT ON CERTAIN OF THE DISPUTED PROVISIONS AND IN A
LETTER DATED AUGUST 11, 1982, THE AGENCY WITHDREW THE ALLEGATION OF
NONNEGOTIABILITY AS TO THE REMAINDER.
BASED ON THE AGREEMENT REACHED BY THE PARTIES AND THE AGENCY'S
WITHDRAWAL OF THE ALLEGATION CONCERNING THE UNION'S PROPOSALS, THERE IS
NO LONGER AN ISSUE AS TO WHETHER THE PROPOSALS IN THIS CASE ARE WITHIN
THE DUTY TO BARGAIN UNDER THE STATUTE. THE DISPUTE INVOLVED IN THE
UNION'S APPEAL THEREFORE HAS BEEN RENDERED MOOT.
ACCORDINGLY, FOR THE REASONS STATED HEREIN, AND APART FROM OTHER
CONSIDERATIONS,
IT IS HEREBY ORDERED THAT THE UNION'S PETITION FOR REVIEW BE, AND IT
HEREBY IS, DISMISSED.
FOR THE AUTHORITY.
ISSUED, WASHINGTON, D.C., AUGUST 27, 1982
JAMES J. SHEPARD, EXECUTIVE DIRECTOR
9 FLRA 152; FLRA O-AR-416; AUGUST 27, 1982.
VETERANS ADMINISTRATION REGIONAL OFFICE,
DENVER, COLORADO
(ACTIVITY)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1557
(UNION)
CASE NO. O-AR-416
ORDER DISMISSING EXCEPTIONS
THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR PATRICIA L. WIGGLESWORTH FILED BY THE ACTIVITY PURSUANT TO
SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE AND SECTION 2425.1 OF THE AUTHORITY'S RULES AND REGULATIONS.
FOR THE REASONS STATED BELOW, THE ACTIVITY'S EXCEPTIONS MUST BE
DISMISSED AS UNTIMELY.
UNDER SECTION 7122(B) OF THE STATUTE AND SECTION 2425.1(B) OF THE
RULES AND REGULATIONS, THE TIME LIMIT FOR FILING AN EXCEPTION TO AN
ARBITRATION AWARD IS THIRTY DAYS BEGINNING ON AND INCLUDING THE DATE ON
THE AWARD. ADDITIONALLY, UNDER SECTION 2429.21 OF THE RULES AND
REGULATIONS, WHENEVER THE REGULATIONS REQUIRE THE FILING OF A DOCUMENT,
SUCH DOCUMENT MUST BE RECEIVED BY THE AUTHORITY BEFORE THE CLOSE OF
BUSINESS ON THE LAST DAY OF THE TIME LIMIT.
THE ARBITRATOR'S AWARD IN THIS CASE, AS INCLUDED IN THE ACTIVITY'S
SUBMISSION, IS DATED JUNE 29, 1982. THEREFORE, UNDER THE ABOVE-CITED
PROVISIONS, THE ACTIVITY'S EXCEPTIONS WERE DUE IN THE NATIONAL OFFICE OF
THE AUTHORITY BEFORE THE CLOSE OF BUSINESS ON JULY 28, 1982. HOWEVER,
THE ACTIVITY'S EXCEPTIONS WERE NOT FILED WITH THE AUTHORITY UNTIL JULY
30, 1982.
IN THAT REGARD, THE AUTHORITY IS NOT EMPOWERED TO WAIVE OR EXTEND THE
TIME LIMIT FOR FILING EXCEPTIONS TO ARBITRATION AWARDS.
ACCORDINGLY, AS THE ACTIVITY'S EXCEPTIONS WERE UNTIMELY FILED, THE
EXCEPTIONS ARE HEREBY DISMISSED.
FOR THE AUTHORITY.
ISSUED, WASHINGTON, D.C., AUGUST 27, 1982
JAMES J. SHEPARD, EXECUTIVE DIRECTOR
9 FLRA 151; FLRA O-AR-252; AUGUST 27, 1982.
NAVY PUBLIC WORKS CENTER
(ACTIVITY)
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, LOCAL LODGE 192
(UNION)
CASE NO. O-AR-252
ORDER DISMISSING EXCEPTIONS
THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR MITCHELL M. SHIPMAN FILED BY THE UNION PURSUANT TO SECTION
7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE AND
SECTION 2425.1 OF THE AUTHORITY'S RULES AND REGULATIONS. FOR THE
REASONS STATED BELOW, THE UNION'S EXCEPTIONS MUST BE DISMISSED AS
UNTIMELY.
UNDER SECTION 7122(B) OF THE STATUTE AND SECTION 2425.1(B) OF THE
AUTHORITY'S RULES AND REGULATIONS, THE TIME LIMIT FOR FILING AN
EXCEPTION TO AN ARBITRATION AWARD IS THIRTY DAYS BEGINNING ON AND
INCLUDING THE DATE ON THE AWARD. ADDITIONALLY, UNDER SECTION 2429.21 OF
THE RULES AND REGULATIONS, WHENEVER THE REGULATIONS REQUIRE THE FILING
OF A DOCUMENT, SUCH DOCUMENT MUST BE RECEIVED BY THE AUTHORITY BEFORE
THE CLOSE OF BUSINESS ON THE LAST DAY OF THE TIME LIMIT.
THE ARBITRATOR'S AWARD IN THIS CASE, AS INCLUDED IN THE UNION'S
SUBMISSION, IS DATED MAY 20, 1981. THEREFORE, UNDER THE ABOVE-CITED
PROVISIONS, THE UNION'S EXCEPTIONS WERE DUE IN THE NATIONAL OFFICE OF
THE AUTHORITY BEFORE THE CLOSE OF BUSINESS ON JUNE 18, 1981. HOWEVER
THE UNION'S EXCEPTIONS, POSTMARKED JUNE 18, 1981, WERE NOT FILED WITH
THE AUTHORITY UNTIL JUNE 22, 1981. IN THAT REGARD, THE AUTHORITY IS NOT
EMPOWERED TO WAIVE OR EXTEND THE TIME LIMIT FOR FILING EXCEPTIONS TO
ARBITRATION AWARDS.
ACCORDINGLY, AS THE UNION'S EXCEPTIONS WERE UNTIMELY FILED, THE
EXCEPTIONS ARE HEREBY DISMISSED.
FOR THE AUTHORITY.
ISSUED, WASHINGTON, D.C., AUGUST 27, 1982
JAMES J. SHEPARD, EXECUTIVE DIRECTOR
9 FLRA 150; FLRA 4-CA-871; AUGUST 20, 1982.
DEPARTMENT OF HEALTH AND HUMAN SERVICES
REGION IV, ATLANTA, GEORGIA
RESPONDENT
AND
NATIONAL TREASURY EMPLOYEES UNION
CHARGING PARTY
CASE NO. 4-CA-871
DECISION AND ORDER
THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1 OF THE AUTHORITY'S RULES
AND REGULATIONS.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
PARTIES' STIPULATION OF FACTS, THE AUTHORITY FINDS:
THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1)
AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE
STATUTE) WHEN IT FAILED AND REFUSED TO COMPLY WITH SECTION 7131(A) OF
THE STATUTE BY ITS REFUSAL TO REIMBURSE EMPLOYEE IRS COLTON FOR HIS
TRAVEL AND PER DIEM EXPENSES INCURRED WHILE PARTICIPATING AS THE
DESIGNATED UNION REPRESENTATIVE IN THE NEGOTIATION OF A COLLECTIVE
BARGAINING AGREEMENT ON APRIL 7, 1981.
THE FACTS HEREIN ARE SUBSTANTIALLY IDENTICAL TO THOSE FOUND IN BUREAU
OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION, DEPARTMENT OF THE
TREASURY, SAN FRANCISCO, CALIFORNIA, 4 FLRA NO. 40 (1980), ENFORCED SUB
NOM. BUREAU OF ALCOHOL, TOBACCO AND FIREARMS V. FEDERAL LABOR
RELATIONS AUTHORITY, NO. 80-7673 (9TH CIR. MAR. 22, 1982). FOR THE
REASONS MORE FULLY STATED IN BUREAU OF ALCOHOL, TOBACCO AND FIREARMS,
THE AUTHORITY FINDS THAT THE RESPONDENT HEREIN HAS FAILED AND REFUSED TO
COMPLY WITH SECTION 7131(A) OF THE STATUTE AND THEREFORE HAS VIOLATED
SECTION 7116(A)(1) AND (8) OF THE STATUTE. WITH RESPECT TO RESPONDENT'S
ARGUMENTS BASED ON THE ALLEGED SPECIAL CIRCUMSTANCES IT VIEWS TO BE
PRESENT, /1/ THE AUTHORITY CONCLUDES THAT SUCH ARGUMENTS HAVE NO MERIT.
THUS, A UNION CLEARLY HAS THE STATUTORY PREROGATIVE TO DESIGNATE ITS OWN
REPRESENTATIVES IN NEGOTIATIONS, AND THE RESPONDENT HAS NOT ESTABLISHED
THAT THE UNION HAS CLEARLY AND UNMISTAKABLY WAIVED SUCH PREROGATIVE.
SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 4 FLRA NO. 39(1980).
/2/
ORDER
PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
AUTHORITY AND SECTION 7118 OF THE STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGION IV, ATLANTA,
GEORGIA SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO PROVIDE PAYMENT OF PROPERLY DOCUMENTED
TRAVEL AND PER DIEM EXPENSES TO EMPLOYEE IRS COLTON, OR ANY OTHER
EMPLOYEE, AS A RESULT OF PARTICIPATION PURSUANT TO SECTION 7131(A) OF
THE STATUTE AS THE DULY DESIGNATED REPRESENTATIVE OF THE NATIONAL
TREASURY EMPLOYEES UNION, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE,
DURING THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) REIMBURSE EMPLOYEE IRS COLTON FOR HIS TRAVEL AND PER DIEM
EXPENSES INCURRED AS A RESULT OF HIS PARTICIPATION, PURSUANT TO SECTION
7131(A) OF THE STATUTE, AS THE DULY DESIGNATED REPRESENTATIVE OF THE
NATIONAL TREASURY EMPLOYEES UNION DURING THE NEGOTIATION OF A COLLECTIVE
BARGAINING AGREEMENT.
(B) POST AT ITS FACILITIES IN REGION IV COPIES OF THE ATTACHED NOTICE
ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS,
THEY SHALL BE SIGNED BY THE AUTHORIZED REPRESENTATIVE OF REGION IV AND
SHALL BE POSTED AND MAINTAINED BY THIS OFFICIAL FOR 60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
OTHER PLACES WHERE NOTICES ARE CUSTOMARILY POSTED. THE AUTHORIZED
REPRESENTATIVE SHALL TAKE REASONABLE STEPS TO ENSURE THAT SUCH NOTICES
ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION IV, FEDERAL LABOR
RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., AUGUST 20, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR MANAGEMENT
RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT FAIL OR REFUSE TO PROVIDE PAYMENT OF PROPERLY DOCUMENTED
TRAVEL AND PER DIEM EXPENSES TO EMPLOYEE IRA COLTON, OR ANY OTHER
EMPLOYEE, AS A RESULT OF PARTICIPATION, PURSUANT TO SECTION 7131(A) OF
THE STATUTE AS THE DULY DESIGNATED REPRESENTATIVE OF THE NATIONAL
TREASURY EMPLOYEES UNION, OUR EMPLOYEES' EXCLUSIVE REPRESENTATIVE,
DURING THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
WE WILL REIMBURSE EMPLOYEE IRA COLTON FOR HIS TRAVEL AND PER DIEM
EXPENSES INCURRED AS A RESULT OF HIS PARTICIPATION, PURSUANT TO SECTION
7131(A) OF THE STATUTE AS THE DULY DESIGNATED REPRESENTATIVE OF THE
NATIONAL TREASURY EMPLOYEES UNION DURING THE NEGOTIATION OF A COLLECTIVE
BARGAINING AGREEMENT.
(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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, REGION IV, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS
SUITE 501 NORTH WING, 1776 PEACHTREE STREET, NW. ATLANTA, GEORGIA 30309
AND WHOSE TELEPHONE NUMBER IS (404) 881-2324.
/1/ IN THIS REGARD, RESPONDENT ALLEGED THAT NO PREVIOUS UNION
NEGOTIATOR HAD BEEN SELECTED FROM AN OUT-OF-TOWN LOCATION, THE
PARTICULAR DESIGNEE HAD NEVER SERVED IN AN OFFICIAL UNION CAPACITY
BEFORE, THE PARTIES HAD NOT DEMONSTRATED AN INTENT TO HAVE OUT-OF-TOWN
NEGOTIATORS DURING THE PRIOR GROUND RULE NEGOTIATIONS, AND THE
MANAGEMENT TEAM HAD NO ONE ON TRAVEL STATUS.
/2/ THIS IS NOT TO SAY MANAGEMENT MAY NOT BY APPROPRIATE ACTIONS
ATTEMPT TO CONTROL ITS EXPENSES INCURRED IN NEGOTIATIONS AS, FOR
EXAMPLE, THROUGH THE ESTABLISHMENT OF MUTUALLY AGREEABLE NEGOTIATION
PROCEDURES OR GROUND RULES WHICH COULD INCLUDE PROVISION FOR PRE-MEETING
EXCHANGE OF WRITTEN POSITION STATEMENTS. MOREOVER, SECTION 7131(A) OF
THE STATUTE PROVIDES THAT "(T)HE NUMBER OF EMPLOYEES FOR WHOM OFFICIAL
TIME IS AUTHORIZED UNDER THIS SUBSECTION SHALL NOT EXCEED THE NUMBER OF
INDIVIDUALS DESIGNATED AS REPRESENTING THE AGENCY FOR SUCH PURPOSES."
THIS LANGUAGE LIMITS THE NUMBER OF UNION REPRESENTATIVES WHO MUST BE
PAID FOR THEIR REPRESENTATION TIME BY PEGGING THEIR NUMBER TO THE NUMBER
OF AGENCY REPRESENTATIVES, A NUMBER WHICH THE AGENCY WOULD DESIGNATE.
SEE NATIONAL FEDERATION OF FEDERAL EMPLOYEES V. FEDERAL LABOR RELATIONS
AUTHORITY, 652 F. 2D 191(D.C. CIR. 1981).
9 FLRA 149; FLRA 8-CA-891, 8-CA-1048, 8-RO-35; AUGUST 20, 1982.
MARINE CORPS LOGISTICS BASE,
BARSTOW, CALIFORNIA
RESPONDENT
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1482, AFL-CIO
CHARGING PARTY/PETITIONER
CASE NOS. 8-CA-0891, 8-CA-1048, 8-RO-35
DECISION AND ORDER AND DIRECTION OF SECOND ELECTION
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE ABOVE
ENTITLED PROCEEDING ON MARCH 12, 1982, FINDING THAT, IN CASE NOS.
8-CA0891 AND 8-CA-1048, THE RESPONDENT HAD ENGAGED IN THE ALLEGED UNFAIR
LABOR PRACTICES AND RECOMMENDING THAT THE RESPONDENT CEASE AND DESIST
THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION. IN ADDITION, THE JUDGE
FOUND THAT AN OBJECTION TO THE ELECTION IN CASE NO. 8-RO-35 SHOULD BE
SUSTAINED.
SINCE NO TIMELY EXCEPTIONS TO THE JUDGE'S DECISION WERE FILED, AND IN
ACCORDANCE WITH SECTION 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS, AS AMENDED, THE JUDGE'S FINDINGS, CONCLUSIONS, AND
RECOMMENDED ORDER IN CASE NOS. 8-CA-891 AND 8-CA-1048 CONSTITUTE,
WITHOUT PRECEDENTIAL SIGNIFICANCE, THE FINDINGS, CONCLUSIONS, DECISION
AND ORDER OF THE AUTHORITY, AND ALL OBJECTIONS THERETO ARE DEEMED WAIVED
FOR ALL PURPOSES. ACCORDINGLY, THE RESPONDENT SHALL CEASE AND DESIST
FROM THE VIOLATIONS FOUND BY THE JUDGE AND TAKE THE AFFIRMATIVE ACTIONS
SET FORTH IN THE ORDER.
WITH RESPECT TO CASE NO. 8-RO-35, PURSUANT TO SECTION 2422.20 OF THE
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7111 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE JUDGE MADE AT THE HEARING AND FINDS THAT
NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY AFFIRMED.
UPON CONSIDERATION OF THE ENTIRE RECORD, AND NOTING PARTICULARLY THE
ABSENCE OF EXCEPTIONS TO THE JUDGE'S DECISION, THE AUTHORITY HEREBY
ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS, AS
MODIFIED HEREIN. /1/
AS FOUND BY THE JUDGE, THE REPRESENTATION ELECTION IN CASE NO.
8-RO-35 WAS HELD ON FEBRUARY 19, 1981, AND RESULTED IN 8 VOTES BEING
CAST FOR THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1482, AFL-CIO (THE UNION) AND 11 VOTES BEING CAST AGAINST
EXCLUSIVE REPRESENTATION. THE UNION FILED FOUR OBJECTIONS TO CONDUCT
ALLEGED TO HAVE AFFECTED THE RESULTS OF THE ELECTION. ON MAY 4, 1981,
THE REGIONAL DIRECTOR ISSUED HIS REPORT AND FINDINGS WHEREIN HE
OVERRULED THREE OF THE OBJECTIONS AS BEING WITHOUT MERIT. WITH RESPECT
TO THE FOURTH OBJECTION, HE CONCLUDED THAT THE ALLEGATIONS RAISED
THEREIN WERE IDENTICAL TO THOSE ALLEGED IN CASE NO. 8-CA-891 TO
CONSTITUTE UNFAIR LABOR PRACTICES. ACCORDINGLY, HE ORDERED A
CONSOLIDATED HEARING.
WITH REGARD TO CASE NO. 8-RO-35, THE JUDGE FOUND THAT THE
RESPONDENT'S UNFAIR LABOR PRACTICE CONDUCT WHICH OCCURRED AFTER THE
UNION FILED ITS REPRESENTATION PETITION BUT BEFORE THE ELECTION WAS HELD
CONSTITUTED IMPROPER CONDUCT WHICH COULD REASONABLY BE EXPECTED TO HAVE
AFFECTED THE RESULTS OF THE ELECTION. IN ACCORDANCE" WITH SECTION
2422.20(G)(1) OF THE AUTHORITY'S RULES AND REGULATIONS, HOWEVER, THE
JUDGE MADE NO RECOMMENDATION WITH REGARD TO ANY REMEDIAL ACTION.
AS THE AUTHORITY HAS PREVIOUSLY RECOGNIZED, WHILE IT IS OFTEN
DIFFICULT TO ASSESS HOW PERVASIVE THE IMPACT OF AN AGENCY'S IMPROPER
ACTIONS MIGHT BE ON VOTERS, THE STANDARD FOR DETERMINING WHETHER CONDUCT
IS OF AN OBJECTIONA4LE NATURE SO AS TO REQUIRE THAT AN ELECTION BE SET
ASIDE IS ITS POTENTIAL FOR INTERFERING WITH THE FREE CHOICE OF THE
VOTERS. UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES IMMIGRATION
AND NATURALIZATION SERVICE, 9 FLRA NO. 36(1982). ACCORDINGLY,
MANAGEMENT'S CONDUCT WHICH INTERFERES WITH THE EMPLOYEES' FREEDOM OF
CHOICE IN THE ELECTION REQUIRES THAT THE ELECTION BE SET ASIDE. ID.
SEE ALSO DEPARTMENT OF THE AIR FORCE, AIR FORCE PLANT REPRESENTATIVE
OFFICE, DETACHMENT 27, FORT WORTH, TEXAS, 5 FLRA NO. 62(1981).
THE AUTHORITY CONCLUDES THAT THE RESPONDENT'S CONDUCT IN THIS CASE
INTERFERED WITH THE EMPLOYEES' FREEDOM OF CHOICE IN THE ELECTION AND
THEREFORE REQUIRES THAT THE ELECTION BE SET ASIDE. THUS, THE RECORD
INDICATES THAT THE RESPONDENT, DURING THE PRE-ELECTION PERIOD,
IMPROPERLY CHANGED THE STATUS, REDUCED THE HOURS OF WORK, REPRIMANDED,
AND REVOKED THE "EXCELLENT" PERFORMANCE RATING OF AN EMPLOYEE, SUSAN
MCGINNIS, WHO HAD BEEN EXTREMELY OPEN AND ACTIVE IN SUPPORTING THE UNION
AND IN SOLICITING OTHER EMPLOYEES TO JOIN THE UNION. THE RECORD FURTHER
INDICATES THAT MCGINNIS, WHO WORKED CLOSELY WITH THE UNION PRESIDENT,
NOTIFIED THE LATTER OF THESE OCCURRENCES DURING THE PRE-ELECTION PERIOD.
GIVEN THE RELATIVELY SMALL SIZE OF THE UNIT (65 EMPLOYEES), THE
CENTRALIZED WORK LOCATIONS OF THE UNIT EMPLOYEES, THE HIGH VISIBILITY OF
MCGINNIS AS AN ACTIVE AND VOCAL SUPPORTER OF THE UNION, THE AUTHORITY
CONCLUDES THAT THE RESPONDENT'S IMPROPER CONDUCT HAD A REASONABLY
FORESEEABLE NEGATIVE EFFECT ON THE VOTERS' ATTITUDE TOWARD THE UNION AND
THUS INTERFERED WITH THE EMPLOYEES' FREEDOM OF CHOICE IN THE ELECTION.
ACCORDINGLY, THE ELECTION MUST BE SET ASIDE AND THE EMPLOYEES GIVEN A
SECOND OPPORTUNITY TO EXERCISE THEIR PROTECTED RIGHTS.
ORDER
PURSUANT TO SECTIONS 2422.20(I) AND 2429.16 OF THE AUTHORITY'S RULES
AND REGULATIONS AND SECTION 7105 OF THE STATUTE, IT IS HEREBY ORDERED
THAT THE ELECTION CONDUCTED IN CASE NO. 8-RO-35 BE, AND IT HEREBY IS,
SET ASIDE, AND THAT A SECOND ELECTION BE CONDUCTED PURSUANT TO THE
DIRECTION OF SECOND ELECTION SET FORTH BELOW.
DIRECTION OF SECOND ELECTION
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED IN CASE NO. 8-RO-35
IN THE UNIT SET FORTH IN THE AGREEMENT FOR CONSENT OR DIRECTED ELECTION
ALREADY EXECUTED BY THE PARTIES IN CONNECTION WITH THE ELECTION
CONDUCTED ON FEBRUARY 19, 1981, AS SOON AS FEASIBLE, BUT NOT EARLIER
THAN SIXTY (60) DAYS FROM THE DATE OF POSTING OF THE NOTICE TO ALL
EMPLOYEES IN CASE NOS. 8-CA-891 AND 8-CA-1048. THE REGIONAL DIRECTOR
SHALL SUPERVISE OR CONDUCT THE ELECTION, AS APPROPRIATE, SUBJECT TO THE
AUTHORITY'S RULES AND 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, 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 SHALL VOTE WHETHER OR
NOT THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
1482, AFL-CIO.
ISSUED, WASHINGTON, D.C., AUGUST 20, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
MITCHELL ARKIN, ESQUIRE
MS. HELEN LEACH
FOR THE RESPONDENT
E. A. JONES, ESQUIRE
DEBORAH S. WAGNER, ESQUIRE
FOR THE GENERAL COUNSEL
MR. CHARLIE WARE
FOR THE CHARGING PARTY
AND PETITIONER
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DECISION
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C.
SECTION 7101, ET SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER,
FED. REG., VOL. 45, NO. 12, JANUARY 17, 1980 AND VOL. 46, NO. 154,
AUGUST 11, 1981, 5 C.F.R. CHAPTER XIV, PART 2411, ET SEQ.
PURSUANT TO CHARGES FIRST FILED ON JANUARY 28, 1981 IN CASE NO.
8-CA-891, AND APRIL 23, 1981, IN CASE NO. 8-CA-1048, AND OBJECTIONS TO
ELECTION FILED ON FEBRUARY 23, 1981 IN CASE NO. 8-RO-35, BY LOCAL 1482,
AMERICAN FEDERATION OF LABOR, AFL-CIO (HEREINAFTER CALLED THE AFGE OR
THE UNION), AN "ORDER CONSOLIDATING CASES, CONSOLIDATED AMENDED
COMPLAINT, AND AMENDED NOTICE OF HEARING WITH OUTSTANDING REPRESENTATION
HEARING" WAS ISSUED ON JUNE 11, 1981, BY THE REGIONAL DIRECTOR FOR
REGION VIII, FEDERAL LABOR RELATIONS AUTHORITY, LOS ANGELES, CALIFORNIA.
THE CONSOLIDATED COMPLAINT ALLEGES THAT THE MARINE CORPS LOGISTICS
BASE, BARSTOW, CALIFORNIA (HEREINAFTER CALLED THE RESPONDENT OR MARINE
CORPS), VIOLATED SECTIONS 7116(A)(1), (2) AND (4) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (HEREINAFTER CALLED THE STATUTE), BY
VIRTUE OF ITS ACTIONS IN (1) REPRIMANDING EMPLOYEE SUSAN MCGINNIS
BECAUSE OF HER UNION ACTIVITY, (2) REDUCING MS. MCGINNIS HOURS OF WORK
BECAUSE OF HER UNION ACTIVITY, (3) REVOKING MS. MCGINNIS' EXCELLENT
PERFORMANCE RATING BECAUSE OF HER UNION ACTIVITY AND INFORMING HER OF
SAME, AND (4) FORCING MS. MCGINNIS AS A CONDITION PRECEDENT TO
OBTAINING WORK TO SIGN A STATEMENT IN WHICH SHE DENIED BOTH
PARTICIPATING IN CERTAIN UNION ACTIVITY OR HAVING ANY KNOWLEDGE OF THE
BASIS OF THE OUTSTANDING OBJECTIONS TO AN ELECTION.
IN CONNECTION WITH THE OBJECTION TO THE ELECTION, THE RECORD
INDICATES THAT AN ELECTION WAS HELD IN CASE NO. 8-RO-35 ON FEBRUARY 19,
1981, WHICH RESULTED IN 8 VOTES BEING CASE FOR LOCAL 1482 AND 11 VOTES
BEING CASE AGAINST EXCLUSIVE REPRESENTATION BY LOCAL 1482, AFGE.
SUBSEQUENTLY, LOCAL 1482, AFGE, FILED FOUR TIMELY OBJECTIONS TO CONDUCT
AFFECTING RESULTS OF ELECTION. ON MAY 4, 1981, THE REGIONAL DIRECTOR
FOR REGION VIII ISSUED HIS "REPORT AND FINDINGS" ON THE OBJECTIONS
WHEREIN HE CONCLUDED THAT THREE OF THE FOUR OBJECTIONS WERE WITHOUT
MERIT AND OVERRULED SAME. WITH RESPECT TO THE FOURTH OBJECTION, HE
CONCLUDED THAT SUCH OBJECTION RAISED ISSUES AND/OR ALLEGATIONS IDENTICAL
TO THOSE SET FORTH IN CASE NO. 8-CA-891 AS UNFAIR LABOR PRACTICES. /2/
ACCORDINGLY, THE REGIONAL DIRECTOR ISSUED AN "ORDER DIRECTING HEARING ON
OBJECTION" AND LATER CONSOLIDATED THE MATTER WITH THE HEARING SET ON THE
COMPLAINTS IN CASE NOS. 8-CA-891 AND 8-CA-1048.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON OCTOBER 14, 1981, IN
BARSTOW, CALIFORNIA. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES INVOLVED HEREIN. THE GENERAL COUNSEL AND THE
RESPONDENT SUBMITTED POST HEARING BRIEFS WHICH HAVE BEEN DULY
CONSIDERED.
UPON THE BASIS OF THE ENTIRE RECORD, /3/ INCLUDING MY OBSERVATION OF
THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATIONS.
FINDINGS OF FACT
RESPONDENT OPERATES A COMBINED CLUB SYSTEM (COMMAND CLUBS MANAGEMENT
SYSTEMS, CCMS) AT BARSTOW, CALIFORNIA, WHICH CONSISTS OF AN OFFICER'S
CLUB (THE "O" CLUB), AND ENLISTED MEN'S CLUB (THE "E" CLUB) AND A
NON-COMMISSIONED OFFICER'S CLUB (THE "NCO" CLUB). THE MANAGER OF THE
CCMS REPORTS TO LT. COL. SPEVETZ, DIRECTOR, PERSONNEL AND ADMINISTRATIVE
DIVISION. BENEATH THE CCMS MANAGER ARE THE SUB-MANAGERS OF THE THREE
CLUBS.
SUSAN MCGINNIS, THE ALLEGED DISCRIMINATEE HEREIN, BEGAN WORKING IN
THE CLUB SYSTEM IN 1975. MS. MCGINNIS, AT LEAST UP TO EARLY 1980,
WORKED IN THE CLUB SYSTEM AS A PERMANENT PART-TIME BARTENDER. IN SUCH
CAPACITY SHE WAS ENTITLED TO A MINIMUM OF 20 HOURS OF WORK PER WEEK IN
ADDITION TO PRORATED SICK AND ANNUAL LEAVE ACCRUAL. THE CLUB SYSTEM
ALSO EMPLOYS INTERMITTENT EMPLOYEES WHO WORK AS BARTENDERS AND
WAITRESSES. SUCH INTERMITTENT EMPLOYEES, HOWEVER, WERE NOT GUARANTEED
ANY MINIMUM HOURS OF WORK AND DID NOT ACCRUE SICK AND ANNUAL LEAVE.
IN EARLY 1980, MS. MCGINNIS WAS WORKING IN THE "E" CLUB AS A
BARTENDER. AFTER TAKING TWO MONTHS' LEAVE WITHOUT PAY, SHE TRANSFERRED
TO THE "O" CLUB UNDER THE IMMEDIATE SUPERVISION OF SERGEANT EVANS. AT
THE TIME OF HER TRANSFER TO THE "O" CLUB, MS. MCGINNIS' STATUS,
UNBEKNOWNST TO HER, WAS CHANGED FROM PERMANENT PART-TIME TO
INTERMITTENT. ACCORDING TO MS. MCGINNIS, SHE WAS UNDER THE IMPRESSION
THAT SHE HAD AN UNDERSTANDING WITH SERGEANT EVANS, THE "O" CLUB MANAGER,
THAT SHE WOULD BE WORKING AT LEAST 20 HOURS PER WEEK. MR. BRYANT, WHO,
AT THE TIME OF MS. MCGINNIS' RETURN, WAS ACTING AS BOTH THE "O" CLUB
MANAGER AND CCMS MANAGER, TESTIFIED THAT SERGEANT EVANS WAS SUPPOSED TO
HAVE EXPLAINED TO MS. MCGINNIS HER CHANGE IN STATUS.
IN LATE AUGUST AND EARLY SEPTEMBER 1980, MS. MCGINNIS BEGAN
EXPERIENCING PROBLEMS IN OBTAINING HER GUARANTEED 20 HOURS OF WORK PER
WEEK TO WHICH SHE BELIEVED SHE WAS ENTITLED AS A PERMANENT PART-TIME
EMPLOYEE. MS. MCGINNIS THEN WROTE A GRIEVANCE WHICH WAS DIRECTED TO
COLONEL SPEVETZ THROUGH CCMS MANAGER BRYANT, WHO IN HIS CAPACITY AS
ACTING MANAGER OF THE "O" CLUB ALLOCATED THE THE BARTENDER ASSIGNMENTS.
MS. MCGINNIS' GRIEVANCE REQUESTED REINSTATEMENT OF HER PERMANENT
PART-TIME STATUS AND A TRANSFER TO ONE OF THE OTHER CLUBS ON THE BASE.
ON SEPTEMBER 9, 1980, MS. MCGINNIS WENT TO THE UNION HALL FOR
PURPOSES OF MAKING A COPY OF HER GRIEVANCE ON THE UNION'S DUPLICATING
MACHINE. WHILE AT THE UNION HALL MS. MCGINNIS SPOKE TO CHARLIE WARE,
THE UNION PRESIDENT, AND RECEIVED PERMISSION TO USE THE UNION'S
DUPLICATING EQUIPMENT. DURING AN ENSUING DISCUSSION MS. MCGINNIS
EXPLAINED HER PROBLEM TO MR. WARE, AGREED TO JOIN THE UNION AND WENT SO
FAR AS TO SIGN A UNION DUES DEDUCTION FORM. THEY ALSO DISCUSSED THE
PROCEDURE FOR ESTABLISHING THE UNION AS THE EXCLUSIVE REPRESENTATIVE OF
RESPONDENT'S NON-APPROPRIATED FUND EMPLOYEES AND THE ORGANIZING CAMPAIGN
WHICH WOULD BE NEEDED. MS. MCGINNIS VOLUNTEERED TO HELP IN THE
ORGANIZING CAMPAIGN AND MR. WARE ARRANGED FOR MS. MCGINNIS TO ATTEND THE
UNION'S WEEKLY STEWARD TRAINING CLASSES WHICH WERE HELD ON WEDNESDAY
EVENINGS. ACCORDING TO THE UNCONTESTED TESTIMONY OF MS. MCGINNIS SHE
ANNOUNCED HER MEMBERSHIP IN THE STEWARD TRAINING CLASSES TO CLUB
MANAGERS TOP LEWIS AND CHARLIE WATKINS.
ON OR AFTER SEPTEMBER 9, 1981, MS. MCGINNIS' GRIEVANCE WAS FORWARDED
THROUGH MR. BRYANT TO COL. SPEVETZ. THE SIGNATURE PAGE OF THE GRIEVANCE
CONTAINED THE NOTATION "CC AFGE". SUBSEQUENTLY, FAILING TO RECEIVE A
RESPONSE TO THE GRIEVANCE, MR. OSCAR CARR, A STEWARD AND ORGANIZER FOR
THE UNION, MADE AN APPOINTMENT WITH COL. SPEVETZ TO DISCUSS THE
GRIEVANCE. DURING THE MEETING, MR. CARR, WHO WAS ACTING IN THE CAPACITY
OF MS. MCGINNIS' PERSONAL REPRESENTATIVE, INFORMED COL. SPEVETZ OF THE
AGREEMENT MS. MCGINNIS HAD MADE WITH "O" CLUB MANAGER SERGEANT EVANS
BEFORE SERGEANT EVANS HAD RETIRED, NAMELY THAT MS. MCGINNIS WOULD BE
RECEIVING AT LEAST 20 HOURS WORK PER WEEK AT THE "O" CLUB. THE MEETING
ENDED WITH COLONEL SPEVETZ AGREEING TO CONTACT SERGEANT EVANS AND CHECK
OUT THE MATTER.
ON SEPTEMBER 18, 1981, UNION PRESIDENT WARE SENT A LETTER TO COLONEL
SPEVETZ WHEREIN HE REQUESTED A LIST OF "ALL EMPLOYEES EMPLOYED BY YOUR
FACILITY WHO ARE ELIGIBLE FOR REPRESENTATION BY AN EXCLUSIVE
REPRESENTATIVE AND WHO ARE NOT NOW BEING REPRESENTED BY A LABOR
ORGANIZATION WITH EXCLUSIVE REPRESENTATION RIGHTS". BY LETTER DATED
OCTOBER 8, 1980, COLONEL SPEVETZ FORWARDED THE ROSTERS OF EMPLOYEES
EMPLOYED IN THE VARIOUS FACILITIES UNDER HIS COMMAND. THEREAFTER, MS.
MCGINNIS, UNDER THE GUIDANCE OF MR. CARR, DISTRIBUTED UNION LITERATURE
AND SPOKE TO A NUMBER OF NAMED EMPLOYEES IN THE CLUB SYSTEM ABOUT THE
MERITS OF THE UNION. OF THE 65 NON-APPROPRIATED FUND EMPLOYEES EMPLOYED
BY RESPONDENT, 30 WORKED IN THE CLUB SYSTEM. THE REMAINING 35 EMPLOYEES
WHO WORKED IN SUCH PLACES AS THE COMMISSARY STORE AND DAY-CARE CENTER,
WERE CONTACTED BY MR. CARR.
ACCORDING TO MR. CARR, WHOSE TESTIMONY IN THIS RESPECT IS
UNCONTESTED, DURING THE PERIOD SEPTEMBER THROUGH NOVEMBER 1980 WHEN HE
AND MS. MCGINNIS WERE CONDUCTING THEIR ORGANIZING CAMPAIGN, HE SPOKE TO
COLONEL SPEVETZ SOME SIX TIMES ABOUT MS. MCGINNIS' GRIEVANCE AND ALSO
INFORMED HIM OF MS. MCGINNIS' INVOLVEMENT IN THE UNION ORGANIZING
CAMPAIGN. IN THIS LATTER REGARD, COLONEL SPEVETZ ACKNOWLEDGED THAT HE
WAS AWARE THAT MS. MCGINNIS WAS A UNION ADVOCATE BUT STATED THAT HE DID
NOT CONSIDER HER UNION ADVOCACY TO BE UNION ACTIVITY.
ON NOVEMBER 26, 1980, COLONEL SPEVETZ MET WITH MS. MCGINNIS AND MR.
CARR AND GAVE MS. MCGINNIS A LETTER WHICH STATED, IN PERTINENT PART AS
FOLLOWS:
IT IS MY DETERMINATION THAT THE PROPER STEPS WERE NOT FOLLOWED AND
THAT YOUR CHANGE OF
STATUS IS, IN FACT, INVALID. THE REFERENCE SETS FORTH THE
REQUIREMENTS BEFORE AN ADVERSE
ACTION MAY BE TAKEN.
ACCORDINGLY, THE TREASURER/MANAGER, COMMAND CLUB MANAGEMENT SYSTEM,
BARSTOW, IS DIRECTED TO
REINSTATE YOU TO PERMANENT PART-TIME STATUS AND CREDIT YOUR SICK AND
ANNUAL LEAVE ACCOUNT FOR
THE HOURS WORKED SINCE YOUR INVALIDATED CHANGE WAS EFFECTED. /4/
ON DECEMBER 5, 1980, MS. MCGINNIS WORKED A CHRISTMAS PARTY AT THE "O"
CLUB. /5/ DURING THE COURSE OF THE EVENING, ACCORDING TO HER
UNCONTROVERTED TESTIMONY, SHE CIRCULATED AN ELECTION PETITION FOR THE
UNION AND SOLICITED SIGNATURES THEREON FROM THE EMPLOYEES WORKING THE
PARTY. AT THE END OF THE EVENING, WHILE SHE WAS IN MR. WATKINS' OFFICE
COUNTING HER CASH DRAWER, SHE ASKED MR. WATKINS TO SIGN THE PETITION.
MR. WATKINS INFORMED HER THAT HE WAS AWARE OF HER SOLICITATION
ACTIVITIES BUT THAT HE COULD NOT SIGN THE PETITION BECAUSE HE WAS A
MEMBER OF MANAGEMENT.
DURING THE COURSE OF THE PARTY ON DECEMBER 5, 1980, MR. BRYANT GAVE
MS. MCGINNIS A WARNING LETTER DATED NOVEMBER 26, 1980, FROM COLONEL
SPEVETZ. COLONEL SPEVETZ' LETTER INFORMED MS. MCGINNIS THAT DURING HIS
INVESTIGATION OF THE CIRCUMSTANCES CONCERNING HER CHANGE IN STATUS FROM
PERMANENT TO INTERMITTENT, HE BECAME AWARE OF SEVERAL INCIDENTS
CONCERNING HER INABILITY TO KEEP AN ACCURATE CASH DRAW AND DRINKING
WHILE ON THE JOB. COLONEL SPEVETZ FURTHER INFORMED MS. MCGINNIS THAT
INASMUCH AS SHE HAD NOT HAD ANY PRIOR COUNSELING CONCERNING SUCH
INDISCRETIONS NO ACTION WOULD BE TAKEN AT THE PRESENT TIME, BUT THAT THE
LETTER WOULD REMAIN IN HER PERSONNEL FILE FOR SIX MONTHS. IF NO OTHER
SIMILAR INDISCRETIONS OCCURRED WITHIN THE 6-MONTH PERIOD, THE LETTER
WOULD BE DESTROYED. /6/ THE RECORD CONTAINS NO EXPLANATION FOR THE
DELAY IN PRESENTING THE NOVEMBER 26TH LETTER TO MS. MCGINNIS.
ON DECEMBER 15, 1980, UNION PRESIDENT WARE FILED A RO PETITION
SEEKING A REPRESENTATION ELECTION FOR A UNIT OF RESPONDENT'S
NON-APPROPRIATED FUND EMPLOYEES.
ON OR ABOUT JANUARY 7, 1981, MR. BRYANT GAVE MS. MCGINNIS TWO
DOCUMENTS, A "LETTER OF REPRIMAND" DATED JANUARY 5, 1981, AND A "CHANGE
IN EMPLOYMENT STATUS" FROM PERMANENT PART-TIME TO INTERMITTENT ON CALL.
THE CHANGE IN STATUS WAS PREDICATED ON THE LACK OF PARTIES AND FUNCTIONS
DURING THE UPCOMING MONTHS AND THE REDUCTION IN HOURS THAT THE VARIOUS
CLUBS WOULD BE IN OPERATION. IN THIS LATTER CONNECTION, MS. MCGINNIS
TESTIFIED, AGAIN WITHOUT CONTRADICTION, THAT THERE WERE PARTIES
SCHEDULED IN JANUARY AND FEBRUARY AND THAT NEW EMPLOYEES WERE BEING
HIRED AS INTERMITTENTS TO WORK IN THE VARIOUS CLUBS. MS. MCGINNIS
FURTHER TESTIFIED THAT OTHER PERMANENT PART-TIME EMPLOYEES WITH LESS
SENIORITY THAN HER WERE RETAINED BY THE RESPONDENT DESPITE A POLICY OF
LAYING OFF BY SENIORITY. ADDITIONALLY, MS. MCGINNIS TESTIFIED, WITHOUT
CONTRADICTION, THAT WHILE SHE WAS BEING DEMOTED TO INTERMITTENT ANOTHER
EMPLOYEE WITH LESS SENIORITY WAS PROMOTED FROM INTERMITTENT TO PERMANENT
PART-TIME STATUS.
MR. BRYANT ACKNOWLEDGES BOTH THE EXISTENCE OF SUCH SENIORITY POLICY
AND THE RETENTION OF LESS SENIOR PERMANENT PART-TIME EMPLOYEES, BUT
JUSTIFIES HIS ACTION IN SELECTING MS. MCGINNIS FOR DEMOTION ON THE
GROUND THAT THE CLUB MANAGERS HAD INDICATED DISSATISFACTION WITH MS.
MCGINNIS' WORK AND HABITS, A REASON NOT SPELLED OUT OR RELIED UPON ON
THE DATE NOTICE OF REDUCTION OF STATUS WAS PRESENTED TO MS. MCGINNIS.
THE "LETTER OF REPRIMAND" WAS PREDICATED ON MS. MCGINNIS' ACTION IN
(1) CHARGING DIFFERENT PRICES FOR THE SAME DRINK AND HAVING CASH DRAWER
OVERAGE OF $1.75 ON DECEMBER 5; (2) HAVING A CASH DRAWER SHORTAGE OF
$1.10 ON DECEMBER 6, 1980; (3) HAVING ARRIVED ONE HOUR LATE FOR WORK ON
DECEMBER 7; AND HAVING ARRIVED SOME THREE AND ONE-HALF HOURS LATE ON
DECEMBER 12, 1980.
WITH RESPECT TO THE CASH SHORTAGES, MS. MCGINNIS, WHOSE TESTIMONY IN
THIS REGARD IS SUPPORTED BY THE CLUB MANAGER SERGEANT JUNE, TESTIFIED
THAT CASH SHORTAGES OR OVERAGES ARE NOT UNCOMMON AND THAT OTHER
EMPLOYEES ALSO EXPERIENCED CASH SHORTAGES AND OVERAGES. MR. BRYANT
CONCEDED IN HIS TESTIMONY THAT SHORTAGES AND OVERAGES WERE NOT UNCOMMON
BUT CLAIMED THAT MS. MCGINNIS EXPERIENCED MORE OF THE SHORTAGES AND
OVERAGES THAN OTHER EMPLOYEES. MR. BRYANT FURTHER CONCEDED THAT IN AN
EARLIER AFFIDAVIT OR STATEMENT GIVEN TO THE GENERAL COUNSEL HE HAD
STATED THAT HE COULD NOT REMEMBER WHETHER MS. MCGINNIS HAD MORE OR LESS
SHORTAGES THAN OTHER EMPLOYEES. WITH RESPECT TO CHARGING DIFFERENT
PRICES FOR THE SAME DRINK, MS. MCGINNIS TESTIFIED THAT SHE HAD BEEN
CHARGING A DIFFERENT PRICE FOR A GIN FIZZ ON THE NIGHT OF DECEMBER 5,
THAN THAT CHARGED BY ANOTHER BARTENDER. ACCORDING TO MS. MCGINNIS THE
DIFFERENCE IN PRICE WAS DUE TO THE METHOD OF PREPARATION AND THAT SHE
HAD BROUGHT THE MATTER TO THE ATTENTION OF MR. WATKINS, THE CLUB
MANAGER. ACCORDING TO MR. BRYANT, WHILE HE WAS INFORMED OF THE PRICING
PROBLEM, HE NEVER MADE AN INVESTIGATION OF THE MATTER. WITH RESPECT TO
BEING LATE ONE AND THREE AND ONE-HALF HOURS, RESPECTIVELY, ON TWO
OCCASIONS, MS. MCGINNIS ADMITS THE ALLEGATIONS. HOWEVER, SHE ATTRIBUTES
THE THREE AND ONE-HALF HOUR OCCASION TO CAR TROUBLE AND POINTS OUT THAT
SHE CALLED IN. MR. BRYANT ANT ACKNOWLEDGES THAT SHE DID CALL IN AND
ATTRIBUTED HER TARDINESS TO CAR TROUBLE. WITH RESPECT TO THE OCCASION
WHEN SHE WAS ONE HOUR LATE, MS. MCGINNIS TESTIFIED THAT WHILE SHE HAD
BEEN LATE, SHE HAD AMPLE TIME TO SET UP HER BAR IN PREPARATION FOR THE
EVENING'S SCHEDULED FESTIVITIES.
MR. BRYANT FURTHER TESTIFIED THAT HE WAS AWARE AS OF JANUARY 5, 1981,
THAT MS. MCGINNIS HAD GONE TO THE UNION FOR HELP WITH HER GRIEVANCE.
/7/ ALTHOUGH MR. BRYANT TESTIFIED THAT HE HAD GIVEN AT LEAST ONE OTHER
EMPLOYEE A REPRIMAND DURING HIS TENURE AS CCMS MANAGER, HE ACKNOWLEDGED
THAT IN AN EARLIER STATEMENT GIVEN TO THE GENERAL COUNSEL HE HAD DENIED
EVER GIVING A REPRIMAND.
AROUND JANUARY 10, 1981, MS. MCGINNIS WAS EVALUATED BY SERGEANT HENRY
JUNE, THE NEW MANAGER OF THE "O" CLUB. SERGEANT JUNE GAVE MS. MCGINNIS
AN EXCELLENT PERFORMANCE RATING IN ALL CATEGORIES.
ON JUNE 13, 1981, MS. MCGINNIS, USING UNION LETTERHEAD STATIONERY,
FILED GRIEVANCES WITH COLONEL SPEVETZ CONCERNING HER CHANGE IN STATUS
AND HER LETTER OF REPRIMAND. COLONEL SPEVETZ TOOK NO IMMEDIATE ACTION
ON THE GRIEVANCE BECAUSE HE DID NOT WANT TO "INFLUENCE IN ANY WAY" THE
IMPENDING ELECTION. COLONEL SPEVETZ DID NOT INFORM MS. MCGINNIS THAT HE
WAS INTENTIONALLY WITHHOLDING ANY ACTION ON HER GRIEVANCES.
ON JUNE 16, 1981, SERGEANT JUNE INFORMED MS. MCGINNIS THAT HER
EVALUATION HAD BEEN REJECTED BY HIS SUPERIORS AND THAT HE WAS UNDER
ORDERS TO RATE HER NON-OBSERVED. ACCORDING TO MS. MCGINNIS, SERGEANT
JUNE TOLD HER THAT HE HAD BEEN TOLD BY OTHER MANAGERS THAT IF HE GAVE
MS. MCGINNIS AN EXCELLENT EVALUATION IT WOULD MAKE MANAGEMENT LOOK BACK
IN LIGHT OF "MCGINNIS' GRIEVANCES, APPEALS AND UNION ACTIVITY." SERGEANT
JUNE TESTIFIED THAT HE DID NOT ATTRIBUTE THE CHANGE TO MS. MCGINNIS'
UNION ACTIVITY. ACCORDING TO SERGEANT JUNE HE CHANGED THE EVALUATION
AFTER TALKING TO MR. BRYANT AND BEING INFORMED THAT INASMUCH AS HE HAD
ONLY OBSERVED HER FOR SHORT PERIOD OF TIME HE WAS NOT QUALIFIED TO GIVE
MS. MCGINNIS A YEARLY EVALUATION. HE WAS ALLOWED, HOWEVER, TO GIVE
EVALUATIONS TO PROBATIONARY EMPLOYEES, I.E. THOSE EMPLOYED UNDER 90
DAYS.
ON JANUARY 28, 1981, UNION PRESIDENT WARE FILED AN UNFAIR LABOR
PRACTICE AGAINST THE RESPONDENT ALLEGING DISCRIMINATION AGAINST MS.
MCGINNIS BECAUSE OF HER PARTICIPATION IN THE CIRCULATION OF THE RO
PETITION.
ON FEBRUARY 19, 1981, A REPRESENTATION ELECTION WAS HELD. MS.
MCGINNIS ACTED AS THE UNION'S OBSERVER AT THE ELECTION WHICH RESULTED IN
A VOTE OF 11 TO 8 AGAINST UNION REPRESENTATION.
ON FEBRUARY 23, 1981, UNION PRESIDENT WARE SUBMITTED TO COLONEL
SPEVETZ A LETTER ADDRESSED TO COLONEL SPEVETZ WHEREIN MS. MCGINNIS
REQUESTED A LEAVE OF ABSENCE. COLONEL SPEVETZ GRANTED MS. MCGINNIS THE
LEAVE OF ABSENCE ON FEBRUARY 26, 1981.
AROUND THE BEGINNING OF APRIL 1981, SERGEANT JUNE CALLED MS.
MCGINNIS WITH RESPECT TO A CHECK SHE HAD NOT PICKED UP. ACCORDING TO
THE UNCONTESTED TESTIMONY OF MS. MCGINNIS, WHEN SHE SUBSEQUENTLY PICKED
UP HER CHECK, SERGEANT JUNE INQUIRED AS TO WHEN SHE PLANNED TO RETURN TO
WORK. UPON BEING INFORMED BY MS. MCGINNIS THAT SHE HAD NO INTENTION OF
RETURNING BECAUSE IT WAS NOT IN HER BEST INTERESTS TO WORK AN INDEFINITE
AMOUNT OF HOURS, SERGEANT JUNE SUGGESTED THAT SHE CALL COLONEL SPEVETZ
SINCE HE WAS SURE THAT IF MS. MCGINNIS INDICATED TO THE COLONEL THAT SHE
WANTED TO "DROP ALL OF THIS UNION BUSINESS AND CHARGES AND ALL THAT,
HE'LL BE SURE TO GIVE YOU YOURS HOURS BACK". /8/ WHEN MS. MCGINNIS
ASKED HIM WHY HE WAS SO SURE AND POINTED OUT THAT DESPITE THE OUTCOME OF
HER ORIGINAL GRIEVANCE SHE HAD NOT RECEIVED THE PROMISED HOURS OF WORK,
SERGEANT JUNE TOLD HER THE MANAGERS WERE JUST WAITING THE WORD TO HIRE
HER.
FOLLOWING SERGEANT JUNE'S SUGGESTION, MS. MCGINNIS CONTACTED COLONEL
SPEVETZ, WHO INVITED MS. MCGINNIS OUT TO LUNCH. DURING THE COURSE OF
THE LUNCH DATE, MS. MCGINNIS INFORMED THE COLONEL AND MS. HELEN LEACH,
RESPONDENT'S EMPLOYEE-MANAGEMENT RELATIONS OFFICER, WHO WAS ALSO IN
ATTENDANCE AT THE LUNCHEON THAT, AMONG OTHER THINGS, SHE WAS PLANNING TO
MOVE TO LOS ANGELES AND WOULD "LIKE TO DROP EVERYTHING BECAUSE SHE WAS
VERY TIRED OF IT". WHEN MS. MCGINNIS INDICATED THAT MOVING TO LOS
ANGELES WAS NOT HER FIRST PREFERENCE, COLONEL SPEVETZ ASKED HER WHETHER
SHE WOULD LIKE HER JOB BACK. IN ANSWER TO MS. MCGINNIS' INQUIRY
CONCERNING WHAT SHE WOULD HAVE TO DO TO GET HER JOB BACK, COLONEL
SPEVETZ REPLIED THAT SHE WOULD NOT HAVE TO DO ANYTHING BUT GIVE HIM A
CALL.
SUBSEQUENT TO THE LUNCHEON MEETING, MS. MCGINNIS, AFTER CONSIDERING
THE MATTER, TELEPHONED COLONEL SPEVETZ AND INFORMED HIM THAT SHE WANTED
TO COME BACK TO WORK. ACCORDING TO MS. MCGINNIS, COLONEL SPEVETZ TOLD
HER TO CONTACT MR. VERN HUBBARD WHO HAD SUCCEEDED MR. BRYANT AS CCMS
MANAGER. UPON CONTACTING MR. HUBBARD, SHE WAS INFORMED THAT HE COULD
NOT GIVE HER ANY HOURS UNTIL SUCH TIME AS SHE SIGNED SOME DOCUMENTS IN
COLONEL SPEVETZ POSSESSION. SUBSEQUENTLY, MS. MCGINNIS WENT TO SEE
COLONEL SPEVETZ AND SIGNED TWO DOCUMENTS. UPON LEAVING THE COLONEL'S
OFFICE SHE WENT TO MR. HUBBARD AND SHOWED HIM THE SIGNED DOCUMENTS. MR.
HUBBARD INFORMED MS. MCGINNIS THAT HE WOULD BE IN TOUCH WITH HER IN A
FEW DAYS. TRUE TO HIS WORD MR. HUBBARD SUBSEQUENTLY CONTACTED MS.
MCGINNIS AND ASSIGNED HER AT LEAST 20 PER WEEK OF WORK. /9/
ACCORDING TO THE RECORD, MS. MCGINNIS CONTINUED WORKING AT THE
LOGISTICS BASE UNTIL JULY 6, 1981, WHEN SHE LEFT TOWN.
ONE OF THE DOCUMENTS, ADDRESSED "TO WHOM IT MAY CONCERN" AND SIGNED
BY MS. MCGINNIS ON APRIL 8, 1981, READ AS FOLLOWS:
ANY DISAGREEMENT THAT MAY HAVE EXISTED BETWEEN THE UNDERSIGNED AND
MR. BRYANT AND OTHERS
WAS BASED UPON PERSONAL DISAGREEMENTS, MISUNDERSTANDINGS OR
PERSONALITY CONFLICTS UNRELATED TO
ANY UNION ACTIVITIES.
ANYTHING AND EVERYTHING THAT HAPPENED SUCH AS THE REDUCTION IN MY
HOURS AND OTHER PROBLEMS
I HAD WERE NOT AS THE RESULT OF MY UNION ACTIVITIES. I WAS NOT A
UNION ORGANIZER IN THE CLUBS
SYSTEM.
I AM NOT AWARE OF THE BASIS FOR THE OBJECTIONS TO THE ELECTION
RECENTLY HELD FOR THE
NONAPPROPRIATED FUND EMPLOYEES.
THE SECOND DOCUMENT, A MEMO FROM BOTH COL. SPEVETZ AND MS. MCGINNIS
ENTITLED "LETTER OF UNDERSTANDING" AND SIGNED APRIL 8, 1981, READ AS
FOLLOWS:
1. IT IS THE INTENT OF THE PARTIES TO DROP ALL MATTERS ONE AGAINST
THE OTHER AND TO START
AGAIN AN EMPLOYER-EMPLOYEE RELATIONSHIP FREE FROM ANY PREJUDICE
RESULTING FORM THE PAST
ACTIONS OF EITHER PARTY.
2. TOWARD THE ACCOMPLISHMENT OF THE ABOVE INTENT, THE BASE AGREES TO
CANCEL THE LETTER OF
REPRIMAND DATED 5 JANUARY 1981; CANCEL THE CHANGE IN EMPLOYMENT
STATUS LETTER DATED 7 JANUARY
1981; TERMINATE ALL ACTION ON THE SUSPECTED MARIJUANA POSSESSION
INCIDENT OF 15 FEBRUARY
1981; AND ANY OTHER MATTER INVOLVING SUSAN E. MCGINNIS. AS A
PERMANENT PART-TIME EMPLOYEE,
SUSAN E. MCGINNIS WILL RECEIVE A MINIMUM OF 20 HOURS PER WEEK.
3. TOWARD THE ACCOMPLISHMENT OF THE ABOVE INTENT, SUSAN E. MCGINNIS
AGREES TO WITHDRAW ALL
APPEALS AND GRIEVANCES.
COLONEL SPEVETZ AUTHORED THE ABOVE TWO DOCUMENTS. SOME OF THE
LANGUAGE WAS RECOMMENDED TO HIM BY RESPONDENT'S REPRESENTATIVE GRIEM AS
RELAYED BY LEACH FROM THE CIVILIAN PERSONNEL OFFICE.
A COUPLE OF DAYS AFTER MS. MCGINNIS SIGNED THE ABOVE TWO DOCUMENTS,
SHE CONTACTED THE UNION AND IN A VERY DISTRAUGHT MANNER TOLD THE UNION
OFFICIAL ABOUT HER ACTIONS IN SIGNING THE TWO DOCUMENTS.
DISCUSSION AND CONCLUSIONS
THERE IS NO DISPUTE AS TO THE BASIC FACTS OF THE CASE, I.E. THAT MS.
MCGINNIS RECEIVED A REPRIMAND, HAD HER HOURS OF WORK REDUCED BY HAVING
HER STATUS CHANGED FROM PERMANENT PART-TIME TO INTERMITTENT, HAD HER
"EXCELLENT" EVALUATION CHANGED TO "NON-OBSERVED", AND THAT MS. MCGINNIS
EXECUTED A WRITTEN DISAVOWAL OF ALL HER ALLEGATIONS CONCERNING THE
OUTSTANDING ALLEGED UNFAIR LABOR PRACTICES AND OBJECTIONS TO THE
ELECTION. HOWEVER, THERE IS A DISPUTE AS TO THE MOTIVATION FOR SUCH
ACTIONS AND THE CIRCUMSTANCES SURROUNDING HER EXECUTION OF THE
DISAVOWAL.
THUS, THE GENERAL COUNSEL CONTENDS THAT THE CHANGES, REPRIMAND, ETC.,
WERE ALL MOTIVATED BY MS. MCGINNIS' UNION ACTIVITY AND THAT SUCH CHANGES
AND/OR ACTIONS WOULD NOT HAVE OCCURRED BUT FOR HER UNION ACTIVITY. WITH
RESPECT TO THE DISAVOWAL OF ANY KNOWLEDGE OF FACTS UNDERLYING THE UNFAIR
LABOR PRACTICES AND THE OBJECTIONS TO THE ELECTION, THE GENERAL COUNSEL
CONTENDS THAT SUCH ACTION WAS A CONDITION PRECEDENT TO MS. MCGINNIS
OBTAINING FURTHER WORK IN THE CLUB SYSTEM.
THE RESPONDENT, ON THE OTHER HAND, TAKES THE POSITION THAT MS.
MCGINNIS' UNION ACTIVITY AND/OR AFFILIATION DID NOT ENTER INTO ITS
DECISION WITH RESPECT TO THE REPRIMAND, CHANGE IN EMPLOYMENT STATUS AND
CHANGE IN EVALUATION. WITH RESPECT TO THE DISAVOWAL, RESPONDENT TAKES
THE POSITION THAT SUCH ACT WAS NOT THE RESULT OF ANY COERCION, BUT
RATHER WAS THE PRODUCT OF THE PARTIES MUTUAL DESIRES TO WIPE THE SLATE
CLEAN AND IMPROVE MS. MCGINNIS' EMPLOYMENT RELATIONSHIP.
IN VIEW OF THE FOREGOING, IT IS OBVIOUS THAT RESOLUTION OF THE
INSTANT CONTROVERSY TURNS ON CREDIBILITY. IF MS. MCGINNIS' TESTIMONY IS
DISCREDITED THEN DISMISSAL OF THE COMPLAINTS WOULD BE IN ORDER SINCE
WITHOUT HER TESTIMONY, THE GENERAL COUNSEL WILL NOT HAVE ESTABLISHED HIS
CASE BY A PREPONDERANCE OF THE EVIDENCE. HOWEVER, SUCH IS NOT THE CASE.
BASED PARTICULARLY ON HER DEMEANOR WHICH, AMONG OTHER THINGS, WAS
MARKED BY DIRECT ANSWERS AND EXCELLENT RECALL, I FIND MS. MCGINNIS TO BE
A HIGHLY CREDIBLE WITNESS AND TO THE EXTENT THAT THERE IS A VARIANCE
BETWEEN HER TESTIMONY AND THAT OF WITNESSES TESTIFYING IN BEHALF OF THE
RESPONDENT, I CREDIT MS. MCGINNIS. IN THIS LATTER CONNECTION, NOTE IS
TAKEN OF THE CONFLICTS BETWEEN MR. BRYANT'S TESTIMONY AT THE HEARING AND
HIS PRETRIAL SWORN STATEMENT ATTRIBUTED TO HIM DURING THE APRIL AND HIS
PRE-TRIAL SWORN STATEMENT, THE ABSENCE OF ANY DENIAL FROM SERGEANT JUNE
CONCERNING VARIOUS STATEMENTS ATTRIBUTED TO HIM DURING THE APRIL 1981
CONVERSATION WITH MS. MCGINNIS ABOUT POSSIBILITY OF MS. 1981
CONVERSATION WITH MS.MCGINNIS' RETURN TO WORK, AND THE MCGINNIS'
CONTRADICTION APPEARING IN COLONEL SPEVETZ' TESTIMONY WITH RESPECT TO
WHETHER OR NOT MS. MCGINNIS APPROACHED HIM ONLY AFTER BEING INFORMED BY
MR. HUBBARD THAT SIGNING CERTAIN DOCUMENTS IN COLONEL SPEVETZ'
POSSESSION WAS A CONDITION PRECEDENT TO BEING ASSIGNED WORK.
HAVING CREDITED MS. MCGINNIS, I FIND, BASED UPON THE RECORD AS A
WHOLE, THAT RESPONDENT'S ACTIONS IN GIVING MS. MCGINNIS ON OR ABOUT
JANUARY 7, 1981, A NOTICE OF CHANGE IN STATUS FROM PERMANENT PART-TIME
TO INTERMITTENT AND A REPRIMAND VIOLATED SECTIONS 7116(A)(1) AND (2) OF
THE STATUTE SINCE SUCH ACTIONS WERE PREDICATED ON MS. MCGINNIS' OPEN AND
KNOWN UNION ACTIVITY, NAMELY SOLICITING MEMBERSHIP IN, OR SUPPORT FOR,
THE UNION. IN REACHING THIS CONCLUSION, I FIND THE REASONS OFFERED BY
RESPONDENT IN DEFENSE OF ITS ACTIONS TO BE A PRETEXT. WITH RESPECT TO
THE REPRIMAND, THE RECORD INDICATES THAT CASH DRAWER SHORTAGES AND
OVERAGES WERE A COMMON OCCURRENCE AMONG ALL BARTENDERS AND THAT MS.
MCGINNIS' MISTAKES IN HANDLING CASH RECEIPTS WERE NO MORE PRONOUNCED
THAN THOSE OF HER FELLOW BARTENDERS; THAT THE DIFFERENT PRICE CHARGED
FOR A GIN FIZZ ON THE NIGHT IN QUESTION WAS DUE TO THE METHOD OF
PREPARATION, I.E. BLENDER MACHINE RATHER THAN HAND STIRRED, A FACT THAT
MR. BRYANT NEVER SAW FIT TO INVESTIGATE. WHILE IT IS TRUE THAT MS.
MCGINNIS WAS LATE ON TWO OCCASIONS, I FIND, CONSIDERING THE
CIRCUMSTANCES SURROUNDING SUCH INCIDENTS OF TARDINESS, A WRITTEN
REPRIMAND TO BE A PUNISHMENT FAR EXCEEDING THE SERIOUSNESS OF THE CRIME.
THIS IS PARTICULARLY TRUE IN VIEW OF THE RECORD EVIDENCE INDICATING
THAT MR. BRYANT SELDOM, IF EVER, UTILIZED A WRITTEN REPRIMAND AS A
DISCIPLINARY TOOL.
WITH RESPECT TO THE REDUCTION IN STATUS, I FIND SUCH ACTION TO BE
CONTRARY TO RESPONDENT'S ESTABLISHED POLICY OF REDUCING EMPLOYEE STATUS
ON THE BASIS OF SENIORITY. HOWEVER, IN THIS REGARD, I CREDIT MS.
MCGINNIS' TESTIMONY THAT THERE WAS NOT A SIGNIFICANT REDUCTION IN
BUSINESS AS CONTENDED BY MR. BRYANT AND THAT WHILE SHE WAS SUFFERING A
REDUCTION IN STATUS, ALLEGEDLY DUE TO LOSS OF BUSINESS, RESPONDENT WAS
HIRING INTERMITTENTS AND PROMOTING OTHER INTERMITTENTS TO PERMANENT
PART-TIME STATUS. ADDITIONALLY, INASMUCH AS MS. MCGINNIS HAD NOT, IN
ANY EVENT BEEN RECEIVING THE 20 HOURS PER WEEK THAT HER PERMANENT
PART-TIME STATUS ENTITLED HER TO, THE IMPOSITION OF A REDUCTION IN
STATUS TO INTERMITTENT WAS UNNECESSARY AND APPEARS TO HAVE BEEN DESIGNED
TO PUNISH MS. MCGINNIS FOR HER PROTECTED UNION ACTIVITY AND CONVEY A
WARNING TO HER FELLOW EMPLOYEES AS TO THE POSSIBLE REPERCUSSION OF UNION
SUPPORT.
I FURTHER FIND THAT THE REVOCATION OF MS. MCGINNIS' "EXCELLENT"
PERFORMANCE RATING WAS PREDICATED UPON HER PARTICIPATION IN ACTIVITIES
PROTECTED BY THE STATUTE, NAMELY, SOLICITATION OF MEMBERSHIP IN THE
UNION, AND HENCE VIOLATIVE OF SECTION 7116(A)(1) AND (2) OF THE STATUTE.
IN REACHING THIS CONCLUSION I RELY ON THE CREDITED TESTIMONY OF MS.
MCGINNIS THAT SHE WAS INFORMED BY SERGEANT JUNE THAT HE WAS UNDER ORDERS
TO REVOKE THE EXCELLENT PERFORMANCE RATING BECAUSE OF MS. MCGINNIS'
"GRIEVANCES, APPEALS AND UNION ACTIVITY". /10/ IF, AS CONTENDED BY
RESPONDENT, THE REVOCATION WAS PREDICATED UPON AN INADEQUATE OPPORTUNITY
TO OBSERVE MS. MCGINNIS, I QUESTION WHY THE EVALUATIONS OF A NUMBER OF
PROBATIONARY EMPLOYEES, WHO ALSO HAD ONLY BEEN OBSERVED BY SERGEANT JUNE
FOR A SHORT PERIOD OF TIME, WERE ALLOWED TO STAND.
ADDITIONALLY, I FIND THAT SERGEANT JUNE'S STATEMENT, STANDING ALONE,
TO CONSTITUTE AN INDEPENDENT VIOLATION SECTION 7116(A)(1) SINCE IT
INTERFERES WITH, RESTRAINS AND COERCES AN EMPLOYEE IN THE EXERCISE OF
THE RIGHTS GUARANTEED BY THE STATUTE TO JOIN AND SUPPORT A UNION. CF.
UNITED STATES MARINE CORPS, MARINE CORPS LOGISTICS BASE, BARSTOW,
CALIFORNIA, 5 FLRA NO. 97 WHERE A SIMILAR CONCLUSION WAS REACHED.
FINALLY, I FIND THAT MS. MCGINNIS IN ORDER TO RECEIVE WORK WAS FORCED
TO SIGN THE APRIL 8, 1981, DOCUMENTS DISAVOWING (1) ANY KNOWLEDGE OF THE
BASIS FOR THE OBJECTIONS TO THE ELECTION AND (2) THAT THE CHANGES IN HER
CONDITIONS OF EMPLOYMENT AND/OR REPRIMANDS, ETC., WERE IN ANYWAY
CONNECTED WITH HER, UNION ACTIVITY. INASMUCH AS SIGNING OF THE
AFOREMENTIONED DISAVOWAL WAS A CONDITION PRECEDENT TO ACHIEVING WORK
WITH RESPONDENT, I FIND THAT RESPONDENT'S ACTION WAS VIOLATIVE OF
SECTION 7116(A)(4) OF THE STATUTE WHICH PROHIBITS DISCIPLINE OR OTHER
DISCRIMINATION AGAINST AN EMPLOYEE BECAUSE THE EMPLOYEE HAS FILED A
COMPLAINT, AFFIDAVIT, OR PETITION, OR HAS GIVEN GIVEN ANY INFORMATION OR
TESTIMONY UNDER THE STATUTE. IN REACHING THIS CONCLUSION, I AGAIN
CREDIT MS. MCGINNIS WITH RESPECT TO THE APRIL 8TH EVENTS AND NOTE
COLONEL SPEVETZ' TESTIMONY THAT FOLLOWING THE SIGNING OF THE DOCUMENTS
HE CALLED MR. HUBBARD AND INFORMED HIM THAT MS. MCGINNIS WAS ON HER WAY
BACK UP AND INSTRUCTED HIM TO PUT HER TO WORK.
INASMUCH AS THE OBJECTION TO THE ELECTION IS BASED UPON RESPONDENT'S
ACTIONS IN REDUCING MS. MCGINNIS' HOURS OF WORK, REPRIMANDING MS.
MCGINNIS AND REVOKING THE EXCELLENT PERFORMANCE EVALUATION GIVEN MS.
MCGINNIS BY SERGEANT JUNE, ALL OF WHICH HAVE BEEN FOUND SUPRA TO
CONSTITUTE UNFAIR LABOR PRACTICES, IT IS HEREBY RECOMMENDED THAT THE
SUCH OBJECTION TO THE ELECTION BE SUSTAINED SINCE SUCH IMPROPER CONDUCT
COULD REASONABLY BE EXPECTED TO HAVE AFFECTED THE RESULTS OF THE
ELECTION.
HAVING FOUND AND CONCLUDED THAT RESPONDENT HAS VIOLATED SECTIONS
7116(A)(1), (2) AND (4) OF THE STATUTE, I RECOMMEND THAT THE AUTHORITY
ISSUE THE FOLLOWING ORDER DESIGNED TO EFFECTUATE THE PURPOSES OF THE
STATUTE. /11/
ORDER
PURSUANT TO SECTION 7118(A)(7)(A) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. SECTION 118(A)(7)(A), AND
SECTION 2423.29(B)(1) OF THE RULES AND REGULATIONS, 5 C.F.R. SECTION
2423.29(B)(1), THE AUTHORITY HEREBY ORDERS THAT THE MARINE CORPS
LOGISTICS BASE, BARSTOW, CALIFORNIA SHALL:
1. CEASE AND DESIST FROM:
(A) EFFECTING CHANGES IN THE EMPLOYMENT STATUS OF ITS EMPLOYEES OR
OTHERWISE DISCRIMINATING
AGAINST EMPLOYEES BECAUSE OF THEIR ACTIVITIES ON BEHALF OF AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1482, AFL-CIO.
(B) REPRIMANDING OR OTHERWISE DISCRIMINATING AGAINST EMPLOYEES
BECAUSE OF THEIR ACTIVITIES
ON BEHALF OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
1482, AFL-CIO.
(C) REDUCING OR OTHERWISE CHANGING EMPLOYEES' "EXCELLENT" EMPLOYMENT
EVALUATIONS BECAUSE
OF THEIR ACTIVITIES ON BEHALF OF THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 1482,
AFL-CIO.
(D) MAKING STATEMENTS TO EMPLOYEES THAT THEIR "EXCELLENT" EMPLOYMENT
EVALUATIONS ARE BEING
CHANGED BECAUSE OF THEIR ACTIVITIES ON BEHALF OF THE AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1482, AFL-CIO.
(E) DENYING EMPLOYMENT TO SUSAN MCGINNIS OR ANY OTHER EMPLOYEE UNLESS
THEY DISAVOW (1) THAT
THEIR UNION ACTIVITIES PLAYED ANY PART IN CHANGES IN THEIR RESPECTIVE
TERMS AND CONDITIONS OF
EMPLOYMENT; OR (2) THAT THEY HAVE ANY KNOWLEDGE OF THE BASIS FOR
OBJECTIONS TO AN ELECTION.
(F) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING OR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS GUARANTEED BY THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) RESCIND AND REMOVE FROM SUSAN MCGINNIS' OFFICIAL PERSONNEL FOLDER
THE JANUARY 5, 1981,
REPRIMAND.
(B) RESTORE SUSAN MCGINNIS' JANUARY 10, 1981, "EXCELLENT" EMPLOYMENT
EVALUATION AND PLACE
A COPY OF SUCH EVALUATION IN HER OFFICIAL PERSONNEL FOLDER.
(C) POST AT ITS MARINE CORPS LOGISTICS BASE, BARSTOW, CALIFORNIA,
SERVICE CLUB FACILITIES
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX", ON FORMS TO BE
FURNISHED BY THE FEDERAL LABOR
RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED
BY THE DIRECTOR,
PERSONNEL AND ADMINISTRATIVE DIVISION AND THEY SHALL BE POSTED FOR 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.
(D) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE
OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 12, 1982
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT DISCRIMINATE AGAINST SUSAN MCGINNIS BY REDUCING HER
STATUS FROM PERMANENT PART-TIME TO INTERMITTENT ON-CALL BECAUSE OF HER
PROTECTED UNION ACTIVITY ON BEHALF OF THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 1482, AFL-CIO
WE WILL NOT REPRIMAND OR OTHERWISE DISCRIMINATE AGAINST SUSAN
MCGINNIS BECAUSE OF HER PROTECTED UNION ACTIVITY ON BEHALF OF THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1482, AFL-CIO.
WE WILL NOT DISCRIMINATE AGAINST SUSAN MCGINNIS BY CHANGING HER
JANUARY 10, 1981, EVALUATION FROM EXCELLENT TO NON-OBSERVED BECAUSE OF
HER PROTECTED UNION ACTIVITY ON BEHALF OF THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 1482, AFL-CIO.
WE WILL NOT MAKE STATEMENTS TO SUSAN MCGINNIS THAT HER EVALUATION IS
BEING CHANGED FROM EXCELLENT TO NON-OBSERVED BECAUSE OF HER PROTECTED
UNION ACTIVITY ON BEHALF OF THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1482, AFL-CIO.
WE WILL NOT PUNISH OR RETALIATE AGAINST SUSAN MCGINNIS BECAUSE OF HER
PROTECTED ACTIVITY, INCLUDING FILING A COMPLAINT, AFFIDAVIT, OR
PETITION, OR GIVING ANY INFORMATION OR TESTIMONY UNDER THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, BY REQUIRING HER TO SIGN A
STATEMENT, AS A CONDITION OF HER REEMPLOYMENT, THAT SHE HAS NOT ENGAGED
IN CERTAIN UNION ACTIVITIES AND IS UNAWARE OF THE BASIS FOR ELECTION
OBJECTIONS FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY.
WE WILL RESCIND AND REMOVE FROM SUSAN MCGINNIS' OFFICAL PERSONNEL
FOLDER THE JANUARY 5, 1981, REPRIMAND.
WE WILL RESTORE MS. MCGINNIS' JANUARY 10, 1981, "EXCELLENT"
EVALUATION AND PLACE A COPY IN HER OFFICIAL PERSONNEL FOLDER.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEE IN THE EXERCISE OF THE RIGHTS GUARANTEED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
(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
MATERIALS.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THE NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION 8,
WHOSE ADDRESS IS: 350 SOUTH FIGUEROA STREET, 10TH FLOOR, LOS ANGELES,
CA 90071, AND WHOSE TELEPHONE NUMBER IS (213) 688-3805.
/1/ IN HIS DECISION, THE JUDGE INADVERTENTLY REFERS TO 1981 RATHER
THAN 1980 ON PAGE 4 AND TO JUNE 1981 RATHER THAN JANUARY 1981, ON PAGE
7. THESE ERRORS ARE HEREBY CORRECTED.
/2/ ALLEGATIONS ENUMERATED 1 THRU 3 SUPRA, ARE IDENTICAL TO THE
GROUNDS RELIED UPON IN THE OBJECTION TO THE ELECTION SET DOWN FOR
HEARING BY THE REGIONAL DIRECTOR IN HIS MAY 4, 1981, REPORT AND
FINDINGS.
/3/ IN THE ABSENCE OF ANY OBJECTION, THE GENERAL COUNSEL'S MOTION TO
CORRECT TRANSCRIPT, SHOULD BE, AND HEREBY IS, GRANTED.
/4/ ACCORDING TO MS. MCGINNIS, DESPITE THE NOVEMBER 26TH LETTER, SHE
STILL DID NOT RECEIVE 20 HOURS WORK PER WEEK, EVEN THOUGH SHE WAS
AVAILABLE. MR. BRYANT, TESTIFIED THAT HE HAD TOLD THE MANAGERS OF THE
CLUBS TO MAKE 20 HOURS PER WEEK AVAILABLE TO MS. MCGINNIS, BUT THAT MS.
MCGINNIS FAILED TO SHOW UP FOR WORK ON SEVERAL OCCASIONS.
/5/ CLUB MANAGERS LOUIS BRYANT, CHARLIE WATKINS, DAVE DAVIS, MARSHALL
WILLIAMS AND SERGEANT LEWIS WERE IN ATTENDANCE AT THE PARTY.
/6/ ACCORDING TO THE UNCONTESTED TESTIMONY OF MS. MCGINNIS, DRINKING
ON THE JOB WAS NOT UNCOMMON, AND THAT SHE FREQUENTLY MIXED DRINKS FOR
THE CLUB MANAGERS. WITH RESPECT TO THE FAILURE TO KEEP AN ACCURATE CASH
DRAWER, MS. MCGINNIS TESTIFIED THAT SHORTAGES AND OVERAGES WERE A COMMON
OCCURRENCE AMONG BARTENDERS. THIS LATTER TESTIMONY OF MS. MCGINNIS IS
CORROBORATED BY SERGEANT JUNE WHO BECAME MANAGER OF THE OFFICER'S CLUB
IN DECEMBER OF 1980.
/7/ IN THIS CONNECTION, COLONEL SPEVETZ TESTIFIED THAT HE HAD LEFT IT
UP TO MR. BRYANT TO DETERMINE WHETHER MS. MCGINNIS SHOULD BE
DISCIPLINED. HE FURTHER TESTIFIED THAT BECAUSE OF THE PENDING UNION
ELECTION HE CAUTIONED MR. BRYANT TO BE SURE THAT ANY ACTION TAKEN
AGAINST MS. MCGINNIS WAS DONE PROPERLY.
/8/ SERGEANT JUNE WAS NOT QUESTIONED ABOUT THE APRIL CONVERSATION.
ACCORDINGLY, MS. MCGINNIS' TESTIMONY IN THIS REGARD STANDS UNCONTESTED.
/9/ COLONEL SPEVETZ' TESTIMONY WITH RESPECT TO THE MEETING WHEREIN
THE TWO DOCUMENTS WERE SIGNED DIFFERS IN ANY CERTAIN RESPECTS FROM THAT
OF MS. MCGINNIS. THUS, HE TESTIFIED THAT HE DID NOT TELL HER THAT THE
SIGNING OF THE TWO DOCUMENTS WAS A CONDITION PRECEDENT TO MS. MCGINNIS'
RETURN TO WORK. HE FURTHER TESTIFIED THAT MS. MCGINNIS CAME TO HIM
BEFORE SHE WENT TO HUBBARD. HOWEVER, IN THIS LATTER CONNECTION, HE ALSO
TESTIFIED THAT FOLLOWING THE SIGNING OF THE DOCUMENTS HE CALLED MR.
HUBBARD AND TOLD HIM THAT MS. MCGINNIS WAS "ON HER WAY BACK UP" AND TO
PUT HER TO WORK.
/10/ SERGEANT JUNE'S STATEMENT TO MS. MCGINNIS ADDS FURTHER SUPPORT
TO THE CONCLUSIONS SET FORTH SUPRA WITH RESPECT TO THE REASONS FOR THE
REDUCTION IN MS. MCGINNIS' STATUS AND THE REPRIMAND. SINCE SERGEANT
JUNE TOOK HIS ORDERS FROM MR. BRYANT, WHO WAS RESPONSIBLE FOR MS.
MCGINNIS' REDUCTION IN STATUS AND REPRIMAND. IF, AS CONTENDED BY MR.
BRYANT, MS. MCGINNIS' UNION ACTIVITY PLAYED NO PART IN HIS DECISION, WHY
DID HE CITE SUCH UNION ACTIVITY TO SERGEANT JUNE AS THE BASIS FOR
ORDERING THE REVOCATION.
/11/ INASMUCH AS MS. MCGINNIS HAS MOVED FROM THE AREA AND IS NO
LONGER EMPLOYED BY THE RESPONDENT, I SHALL NOT ORDER RESPONDENT TO
REINSTATE MS. MCGINNIS TO HER FORMER STATUS AS A PERMANENT PART-TIME
EMPLOYEE.
9 FLRA 148; FLRA O-NG-458; AUGUST 20, 1982.
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-52
UNION
AND
DEPARTMENT OF THE ARMY,
RED RIVER ARMY DEPOT,
TEXARKANA, TEXAS
AGENCY
CASE NO. O-NG-458
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THIS CASE COMES BEFORE THE AUTHORITY PURSUANT TO SECTION
7105(A)(2)(E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
(THE STATUTE). THE ISSUE PRESENTED IS THE NEGOTIABILITY OF THREE UNION
PROPOSALS. UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING
THE CONTENTIONS OF THE PARTIES, THE AUTHORITY MAKES THE FOLLOWING
DETERMINATIONS.
UNION PROPOSAL 1
EMPLOYEES THAT ARE REASSIGNED INVOLUNTARILY TO POSITIONS HAVING NO
KNOWN PROMOTION
POTENTIAL WILL BE GIVEN THE FIRST OPPORTUNITY TO BE PLACED BACK INTO
THE POSITION THAT THEY
FORMERLY HELD.
UNION PROPOSAL 1 REQUIRES THAT EMPLOYEES UNDER CERTAIN CIRCUMSTANCES
BE OFFERED POSITIONS THEY FORMERLY HELD BEFORE THOSE POSITIONS CAN BE
FILLED THROUGH OTHER MEANS. BY THUS REQUIRING THE AGENCY TO SELECT
CERTAIN EMPLOYEES WHEN IT CHOOSES TO FILL CERTAIN POSITIONS, THE
PROPOSAL IS INCONSISTENT WITH THE AGENCY'S AUTHORITY UNDER SECTION
7106(A)(2)(C) OF THE STATUTE /1/ TO MAKE SELECTIONS FOR APPOINTMENTS
FROM PROMOTION CERTIFICATES, OR FROM ANY OTHER APPROPRIATE SOURCE.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2782 AND
DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS, WASHINGTON, D.C., 7 FLRA
NO. 13(1981), APPEAL DOCKETED SUB NOM. AFGE, LOCAL 2782 V. FLRA, NO.
81-2386(D.C. CIR. DEC. 29, 1981).
UNION PROPOSAL 2
VOLUNTARY REQUESTS FOR REASSIGNMENTS TO THE SAME GRADE UNLESS IT IS
TO THE SAME JOB
CLASSIFICATION WILL NOT BE MADE TO FILL A VACANT POSITION UNTIL
COMPETITIVE PROCEDURES HAVE
BEEN PROCESSED AND IT IS DETERMINED THERE ARE NO QUALIFIED APPLICANTS
TO FILL THE POSITION
UNDER THE LOCAL MERIT PROMOTION PROCEDURE.
UNION PROPOSAL 2 AS EXPLAINED BY THE UNION IS INTENDED TO REQUIRE THE
AGENCY TO FILL VACANT POSITIONS THROUGH THE USE OF COMPETITIVE
PROCEDURES WHEN THOSE PROCEDURES YIELD ANY QUALIFIED APPLICANTS, UNLESS
THE AGENCY CHOOSES A VOLUNTEER WHO PREVIOUSLY OCCUPIED A POSITION WITH
THE SAME JOB CLASSIFICATION. IN NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1451 AND NAVY EXCHANGE, NAVAL ADMINISTRATIVE COMMAND,
ORLANDO, FLORIDA, 3 FLRA 392(1980), THE AUTHORITY DETERMINED THAT A
PROPOSAL REQUIRING THE AGENCY TO SELECT ONE OF THREE QUALIFIED
APPLICANTS FROM A COMPETITIVE RANKING DRAWN FROM THE MINIMUM AREA OF
CONSIDERATION AND ALLOWING CONSIDERATION OF OTHER CANDIDATES ONLY IF
THERE WERE LESS THAN THREE QUALIFIED APPLICANTS ON THAT RANKING OPERATED
TO PREVENT THE AGENCY FROM EXERCISING ITS RIGHT, WITHIN THE MEANING OF
SECTION 7106(A)(2)(C) OF THE STATUTE, TO MAKE SELECTIONS FROM PROMOTION
CERTIFICATES OR ANY OTHER APPROPRIATE SOURCE. UNION PROPOSAL 2 HEREIN
SIMILARLY WOULD FORECLOSE CONSIDERATION OF OTHER CANDIDATES (EXCEPT A
VOLUNTEER WHO PREVIOUSLY OCCUPIED A POSITION WITH THE SAME JOB
CLASSIFICATION) IF EVEN ONE QUALIFIED APPLICANT WERE LOCATED IN THE
COMPETITIVE RANKING PROCESS AND, A FORTIORI, MUST ALSO BE HELD UNDER THE
STATUTE TO BE NONNEGOTIABLE FOR THE REASONS FULLY SET FORTH IN THE NAVAL
ADMINISTRATIVE COMMAND, ORLANDO, FLORIDA CASE.
UNION PROPOSAL 3
DETAILS TO A HIGHER GRADE THAT ARE NON-COMPETITIVE WILL BE FOR
MAXIMUM OF 60 DAYS.
UNION PROPOSAL 3 HAS THE EFFECT OF REQUIRING THE AGENCY TO USE
COMPETITIVE PROMOTION PROCEDURES WHEN MAKING A DETAIL OF AN EMPLOYEE FOR
MORE THAN 60 DAYS TO A HIGHER GRADED POSITION. THIS PROPOSAL IS
SUBSTANTIALLY IDENTICAL TO UNION PROPOSAL 16 IN AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL IMMIGRATION AND NATURALIZATION
SERVICE COUNCIL AND U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND
NATURALIZATION SERVICE, 8 FLRA NO. 75(1982). IN THAT CASE, THE
AUTHORITY REJECTED THE AGENCY'S ALLEGATION OF NONNEGOTIABILITY AND FOUND
THE PROPOSAL TO BE WITHIN THE DUTY TO BARGAIN. HENCE, FOR THE REASONS
SET FORTH THEREIN, UNION PROPOSAL 3 IS WITHIN THE DUTY TO BARGAIN.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE UNION'S
PETITION FOR REVIEW RELATING THE UNION PROPOSALS 1 AND 2 BE, AND IT
HEREBY IS, DISMISSED. HOWEVER, UNION PROPOSAL 3 IS WITHIN THE DUTY TO
BARGAIN AND, THEREFORE, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE
AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES)
BARGAIN CONCERNING UNION PROPOSAL 3. /2/
ISSUED, WASHINGTON, D.C., AUGUST 20, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ SECTION 7106(A)(2)(C) PROVIDES:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY
AGENCY --
(2) IN ACCORDANCE WITH APPLICABLE LAWS --
(C) WITH RESPECT TO FILLING POSITIONS, TO MAKE SELECTIONS FOR
APPOINTMENTS FROM --
(I) AMONG PROPERLY RANKED AND CERTIFIED CANDIDATES FOR PROMOTION; OR
(II) ANY OTHER APPROPRIATE SOURCE(.)
/2/ IN DECIDING THAT UNION PROPOSAL 3 IS WITHIN THE DUTY TO BARGAIN,
THE AUTHORITY MAKES NO JUDGMENT AS TO ITS MERITS.
9 FLRA 147; FLRA O-NG-435; AUGUST 20, 1982.
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1603
UNION
AND
NAVY EXCHANGE, NAVAL AIR STATION,
PATUXENT RIVER, MARYLAND
AGENCY
CASE NO. O-NG-435
DECISION AND ORDER ON NEGOTIABILITY ISSUE
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND
PRESENTS ISSUES RELATING TO THE NEGOTIABILITY OF THE FOLLOWING UNION
PROPOSAL.
ARTICLE II, SECTION I
RIF ACTIONS WILL BE MADE IN ACCORDANCE WITH SECNA(V)I(N)ST 5300.22,
EXCEPT AS FOLLOWS: AN
EMPLOYEE IN GROUP I WILL, WHEN REACHED IN A REDUCTION-IN-FORCE
ACTION, HAVE REVERSION RIGHTS
TO ALL PREVIOUSLY HELD POSITIONS IN THE UNIT, AND ALL INTERVENING
POSITIONS FOR WHICH
QUALIFIED IN DESCENDING ORDER ACCORDING TO GRADE.
UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
THE BARGAINING UNIT HEREIN IS COMPRISED OF NONAPPROPRIATE FUND EMPLOYEES
WHO ARE NOT COVERED BY REDUCTION-IN-FORCE (RIF) PROCEDURES PRESCRIBED IN
THE FEDERAL PERSONNEL MANUAL. INSTEAD, THE AGENCY REGULATION REFERENCED
IN THE PROPOSAL GOVERNS THE RIF REVERSION OR RETREAT RIGHTS OF SUCH
EMPLOYEES. THIS REGULATION PROVIDES FOR EMPLOYEE RETREAT RIGHTS IN A
RIF ONLY TO THE LAST POSITION PREVIOUSLY HELD IN THE ORGANIZATION BY THE
EMPLOYEE, PROVIDED THAT THE POSITION IS ENCUMBERED, THAT SUCH REVERSION
WILL NOT RESULT IN A HIGHER GRADE OR RATE OF PAY, THAT SUCH REVERSION
WILL NOT RESULT IN A HIGHER GRADE OR RATE OF PAY, THAT THE EMPLOYEE
EXERCISING THE RETREAT RIGHTS HAS AN EARLIER SERVICE DATE THAN THE
EMPLOYEE TO BE DISPLACED AND THAT THE EMPLOYEE REMAINS QUALIFIED TO
PERFORM THE DUTIES OF THE PREVIOUS POSITION. CONTRARY TO THE UNION'S
ASSERTION, BASED ON ITS EXPRESS LANGUAGE, THE PROPOSAL, WHEN COMBINED
WITH THE AGENCY REGULATION, WOULD, INSOFAR AS IS HERE PERTINENT,
OBLIGATE THE AGENCY TO PROVIDE AN EMPLOYEE, AFFECTED BY A RIF, REVERSION
RIGHTS TO ALL POSITIONS PREVIOUSLY HELD BY SUCH EMPLOYEE AND ALL
INTERVENING POSITIONS IN THE UNIT ON THE BASIS OF SENIORITY. IN THIS
RESPECT, THE INSTANT PROPOSAL IS NOT MATERIALLY DIFFERENT FROM THE ONE
THE AUTHORITY HELD TO BE IN VIOLATION OF MANAGEMENT'S RIGHT TO "ASSIGN"
EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE STATUTE IN NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-23 AND DEPARTMENT OF THE
AIR FORCE, SCOTT AIR FORCE BASE, ILLINOIS, 3 FLRA 185(1980). IN THAT
CASE THE PROPOSAL FOUND TO BE NONNEGOTIABLE CONCERNED SENIORITY-BASED
PLACEMENT RIGHTS FOR EMPLOYEES DOWNGRADED PURSUANT TO POSITION
CLASSIFICATION ACTIONS. SEE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR
FORCE BASE, OHIO, 2 FLRA 604, 613 AND 627(1980), ENFORCED AS TO OTHER
MATTERS SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS
AUTHORITY, 659 F.2D 1140 (D.C. CIR. 1981) CERT. DENIED SUB NOM. AFGE V.
FLRA, U.S. , 102 S. CT. 1443(1982).
FINALLY, THE UNION'S CLAIM THAT THE AGENCY'S REGULATION CANNOT BAR
NEGOTIATIONS ON ITS PROPOSAL BECAUSE THE AGENCY HAS NOT SHOWN THAT A
COMPELLING NEED EXISTS FOR THE REGULATION IS MISPLACED. THAT IS,
BARGAINING ON THE UNION'S PROPOSAL IN THIS CASE IS BARRED BECAUSE THE
PROPOSAL IS INCONSISTENT WITH THE AGENCY'S STATUTORY RIGHT TO "ASSIGN"
EMPLOYEES; THE FACT THAT THE AGENCY HAS CHOSEN TO SET OUT IN A
REGULATION THE SUBSTANTIVE CRITERIA IT WILL APPLY IN EXERCISING THAT
RIGHT TO ASSIGN EMPLOYEES DOES NOT THEREBY SUBJECT THOSE CRITERIA TO A
COMPELLING NEED CHALLENGE UNDER SECTION 7117(A)(2) OF THE STATUTE.
ACCORDINGLY, FOR THE REASONS FULLY DETAILED IN THE SCOTT AIR FORCE
BASE DECISION, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE UNION'S
PETITION FOR REVIEW BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., AUGUST 20, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
9 FLRA 146; FLRA O-NG-400; AUGUST 20, 1982.
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1363
UNION
AND
DEPARTMENT OF THE ARMY, HQ, U.S. ARMY
GARRISON, YONGSAN, KOREA
AGENCY
CASE NO. O-NG-400
DECISION AND ORDER ON NEGOTIABILITY APPEAL
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE AUTHORITY
PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE). UPON CAREFUL
CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES' CONTENTIONS,
THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS. /1/
THE RECORD IN THIS CASE INDICATES THAT THE UNION SOUGHT TO NEGOTIATE
TWO PROPOSALS REGARDING AN AGENCY PROPOSED REGULATION REPLACING AN
EARLIER AGENCY REGULATION CONCERNING U.S. MILITARY POLICE HIGHWAY PATROL
OPERATIONS IN KOREA. SUBSEQUENT TO THE FILING OF THE UNION'S APPEAL THE
AGENCY ADVISED THE AUTHORITY THAT THE DRAFT REGULATION HAD BEEN
WITHDRAWN AND THAT THE AGENCY WOULD CONDUCT ITS MILITARY POLICE HIGHWAY
PATROL OPERATIONS UNDER THE EARLIER REGULATION WHICH HAD BEEN
PROMULGATED IN 1976. THE AGENCY CONTENDS, IN THIS REGARD, THAT SINCE
THE UNION'S PROPOSALS ARE KEYED TO THE NOW WITHDRAWN DRAFT REGULATION
THE UNION'S APPEAL SHOULD BE DISMISSED AS BEING MOOT. THE UNION,
HOWEVER, ARGUES THAT WHILE THE DRAFT REGULATION HAS BEEN DESCRIBED IN
THE DRAFT REGULATION AND THAT UNLESS THE AGENCY ALSO WITHDRAWS THESE
PROCEDURES THE UNION'S PROPOSALS, WHICH CONCERN SUCH PROCEDURES, ARE NOT
MOOT.
THE CIRCUMSTANCES HEREIN DO NOT GIVE RISE TO A NEGOTIABILITY DISPUTE
WHICH THE AUTHORITY MAY PROPERLY REVIEW AT THIS TIME PURSUANT TO SECTION
7117 OF THE STATUTE. THE ESSENCE OF THE DISPUTE BETWEEN THE PARTIES IN
THIS CASE CONCERNS THE QUESTION OF THE AGENCY'S OBLIGATION TO BARGAIN,
I.E., WHETHER LOCAL PAST PRACTICES OR CONDITIONS OF EMPLOYMENT HAVE BEEN
CHANGED, AND NOT THE NEGOTIABILITY OF THE PARTICULAR PROPOSALS INVOLVED.
RESOLUTION OF THE INSTANT DISPUTE MAY BE DEPENDENT UPON THE RESOLUTION
OF FACTUAL ISSUES WHICH SHOULD BE ACCOMPLISHED THROUGH THE USE OF
INVESTIGATORY AND FORMAL HEARING PROCEDURES. ACCORDINGLY, THE PROPER
FORUM IN WHICH TO RESOLVE THIS DISPUTE IS NOT A NEGOTIABILITY APPEAL,
BUT, RATHER, A TIMELY COMMENCED UNFAIR LABOR PRACTICE PROCEEDING
PURSUANT TO SECTION 7118 OF THE STATUTE AND PART 2423 OF THE AUTHORITY'S
RULES AND REGULATIONS. /2/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT,
WASHINGTON, D.C., 6 FLRA NO. 15(1981) AND CASES CITED THEREIN.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS, IT IS ORDERED THAT THE UNION'S APPEAL BE, AND IT HEREBY IS,
DISMISSED WITHOUT PREJUDICE TO THE UNION'S RIGHT TO RESUBMIT TO THE
AUTHORITY ANY NEGOTIABILITY DISPUTE WHICH REMAINS CONCERNING THE UNION'S
PROPOSALS, AFTER RESORTING TO THE UNFAIR LABOR PRACTICE PROCEDURES
DISCUSSED ABOVE.
ISSUED, WASHINGTON, D.C., AUGUST 20, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ NEITHER THE AGENCY'S STATEMENT OF POSITION, WHICH WAS NOT TIMELY
FILED PURSUANT TO SECTION 2424.6 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOR THE AGENCY'S "CONTINUATION" OF ITS STATEMENT OF
POSITION, WHICH DOES NOT MEET THE REQUIREMENTS FOR FILING ADDITIONAL
SUBMISSIONS TO THE AUTHORITY UNDER SECTION 2424.8 OF THE AUTHORITY'S
RULES AND REGULATIONS, WAS CONSIDERED BY THE AUTHORITY IN THIS CASE.
/2/ IT IS NOTED THAT THE UNION DID FILE A RELATED UNFAIR LABOR
PRACTICE CHARGE CONCERNING THE ISSUE OF THE AGENCY'S OBLIGATION TO
BARGAIN ON THE PROPOSALS. THE UNION, HOWEVER, WITHDREW THIS CHARGE.
9 FLRA 145; FLRA O-NG-266; AUGUST 20, 1982.
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES,
LOCAL R14-89
UNION
AND
HEADQUARTERS, U.S. ARMY
AIR DEFENSE CENTER AND
FORT BLISS, TEXAS
AGENCY
CASE NO. O-NG-266
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND
RAISES ISSUES CONCERNING THE NEGOTIABILITY OF TWO PROPOSALS ADVANCED BY
THE UNION IN CONNECTION WITH BARGAINING OVER THE "IMPACT" ON UNIT
EMPLOYEES OF A PROPOSED REORGANIZATION BY THE AGENCY. UPON CAREFUL
CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES' CONTENTIONS,
THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
UNION PROPOSAL 1
PROPOSAL 5D. - CHANGES WILL NOT BE ACCOMPLISHED UNTIL BOTH EMPLOYER
AND EMPLOYEE AGREE TO
THE STANDARDS/CRITICAL ELEMENTS.
UNION PROPOSAL 1, AS EXPLAINED BY THE UNION, IN ESSENCE WOULD
CONDITION THE AGENCY'S ABOLISHING POSITIONS AND REDISTRIBUTING THE
DUTIES THEREOF TO OTHER POSITIONS ON THE AGREEMENT OF THE INCUMBENTS OF
THE OTHER POSITIONS TO THE CRITICAL ELEMENTS AND PERFORMANCE STANDARDS
DEVELOPED PURSUANT TO 5 U.S.C. 4302 FOR THOSE POSITIONS. /1/ THE
ASSIGNMENT OF DUTIES TO POSITIONS, HOWEVER, IS AN EXERCISE OF
MANAGEMENT'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(1)(2)(B) OF THE
STATUTE. SEE, E.G., NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF
THE TREASURY, INTERNAL REVENUE SERVICE, 7 FLRA NO. 35(1981)(UNION
PROPOSAL6). THE IDENTIFICATION OF CRITICAL ELEMENTS AND THE
ESTABLISHMENT OF PERFORMANCE STANDARDS, FURTHERMORE, ARE MANAGEMENT
RIGHTS UNDER SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE. SEE, E.G.,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL COUNCIL OF SOCIAL
SECURITY PAYMENT CENTER LOCALS AND SOCIAL SECURITY ADMINISTRATION,
OFFICE OF PROGRAM SERVICE CENTERS, BALTIMORE, MARYLAND, 7 FLRA NO.
139(1982)(UNION PROPOSALS 6 AND 7). IN THESE REGARDS, THE PROPOSAL AT
ISSUE IS NOT MATERIALLY DISTINGUISHABLE FROM THE PROPOSAL BEFORE THE
AUTHORITY IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
3004 AND DEPARTMENT OF THE AIR FORCE, OTIS AIR FORCE BASE,
MASSACHUSETTS, 9 FLRA NO. 87(1982), WHICH CONDITIONED MANAGEMENT'S
EXERCISE OF ITS RIGHT TO DETERMINE THE DUTIES AND FUNCTIONS TO BE
INCLUDED IN PERFORMANCE APPRAISALS ON THE PRIOR EXERCISE OF MANAGEMENT'S
RIGHT TO ASSIGN FORMAL TRAINING TO THE EMPLOYEES INVOLVED. THE
AUTHORITY HELD THAT PROPOSAL NONNEGOTIABLE UNDER THE STATUTE BECAUSE IT
DIRECTLY INTERFERED WITH MANAGEMENT'S RIGHTS TO DETERMINE WHETHER TO
ASSIGN TRAINING UNDER SECTION 7106(A)(2)(B) AS WELL AS TO DETERMINE THE
DUTIES SUBJECT TO PERFORMANCE APPRAISAL UNDER SECTION 7106(A)(2)(A) AND
(B). THUS, FOR THE REASONS FULLY SET FORTH IN OTIS AIR FORCE BASE, THE
PROPOSAL AT ISSUE HEREIN DIRECTLY WOULD INTERFERE WITH MANAGEMENT'S
RIGHTS AND, THEREFORE, IS OUTSIDE THE DUTY TO BARGAIN UNDER THE STATUTE.
UNION PROPOSAL 2
PROPOSAL 6. -IMMEDIATELY FOLLOWING ANY REDISTRIBUTION OF WORK OR
REALIGNMENT OF DUTIES,
MANAGEMENT WILL REQUEST A FULL MANAGEMENT REVIEW STUDY BY THE
COMPTROLLER FULLY UTILIZING
THOSE EMPLOYEES WHOSE DUTIES/RESPONSIBILITIES ARE ALTERED IN THE DATE
GATHERING REVIEW AND
PROCEDURE DEVELOPMENT. SUCH DUTIES WILL TAKE PRECEDENCE OVER ALL
OTHER ASSIGNED DUTIES.
UNION PROPOSAL 2, AS EXPLAINED BY THE UNION, PRESCRIBES THAT
BARGAINING UNIT EMPLOYEES WHO HAVE BEEN AFFECTED BY CERTAIN MANAGEMENT
ACTIONS WILL PARTICIPATE IN REVIEW STUDIES CONDUCTED BY MANAGEMENT, AND
THAT SUCH PARTICIPATION WILL TAKE PRECEDENCE OVER ALL OTHER ASSIGNED
DUTIES.
THE AUTHORITY FINDS THAT THE DISPUTED PROPOSAL, RATHER THAN
ESTABLISHING A "PROCEDURE" OR AN "APPROPRIATE ARRANGEMENT," /2/ WOULD,
IN TWO DIFFERENT WAYS, SUBSTANTIVELY INFRINGE ON MANAGEMENT'S RIGHTS
UNDER THE STATUTE. IN THE FIRST PLACE, THE PROPOSAL WOULD REQUIRE THE
FORT BLISS COMPTROLLER TO CONDUCT A "REVIEW STUDY." IN THIS REGARD, THE
PROPOSAL IS NOT MATERIALLY DISTINGUISHABLE FROM UNION PROPOSAL 6 IN
NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, 7 FLRA NO. 35(1981) WHICH REQUIRED THAT A
SPECIFIC DUTY BE PERFORMED BY A PARTICULAR EMPLOYEE AND WHICH THE
AUTHORITY HELD DIRECTLY INTERFERED WITH THE AGENCY'S RIGHT TO ASSIGN
WORK UNDER SECTION 7106(A)(2)(B) BECAUSE IT DEPRIVED MANAGEMENT OF THE
DISCRETION TO DETERMINE THE EMPLOYEE TO WHOM WORK WOULD BE ASSIGNED.
THEREFORE, FOR THE REASONS SET FORTH IN DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, SUPRA, THE DISPUTED PROPOSAL HEREIN WOULD
DIRECTLY INTERFERE WITH THE AGENCY'S RIGHT TO ASSIGN WORK TO EMPLOYEES
UNDER SECTION 7106(A)(2)(B) AND, THUS, IT OUTSIDE THE DUTY TO BARGAIN
UNDER THE STATUTE.
SECONDLY, THE PROPOSAL AT ISSUE REQUIRES THAT PARTICIPATION IN REVIEW
STUDIES WILL TAKE PRECEDENCE OVER ALL OTHER DUTIES ASSIGNED TO THE
EMPLOYEES INVOLVED. IT THEREBY WOULD PREVENT MANAGEMENT FROM REQUIRING
THAT THE NORMAL DUTIES ASSIGNED TO EMPLOYEES BE PERFORMED WHEN
PERFORMANCE OF THOSE DUTIES WOULD CONFLICT WITH SUCH EMPLOYEES
PARTICIPATING IN THE REVIEW STUDY. THUS, UNION PROPOSAL 2 DIRECTLY
INTERFERES WITH MANAGEMENT'S RIGHT TO ASSIGN WORK UNDER SECTION
7106(A)(2)(B) OF THE STATUTE. SEE NATIONAL TREASURY EMPLOYEES UNION AND
NTEU CHAPTER 80 AND DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
SERVICE, CENTRAL REGION, 8 FLRA NO. 38(1982) (UNION PROPOSAL 7).
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE PETITION FOR
REVIEW AS TO UNION PROPOSALS 1 AND 2 BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., AUGUST 20, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ 5 U.S.C. 4302(A) PROVIDES FOR THE ESTABLISHMENT OF PERFORMANCE
APPRAISAL SYSTEMS, INCLUDING CRITICAL ELEMENTS AND PERFORMANCE
STANDARDS, BY EACH AGENCY.
/2/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 3804 AND FEDERAL DEPOSIT INSURANCE CORPORATION, CHICAGO REGION,
ILLINOIS, 7 FLRA NO. 34(1981)(UNION PROPOSAL 6) AND NATIONAL TREASURY
EMPLOYEES UNION AND U.S. CUSTOMS SERVICE, REGION VIII, SAN FRANCISCO,
CALIFORNIA, 2 FLRA 254(1979).
9 FLRA 144; FLRA O-AR-413; AUGUST 20, 1982.
NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 165
(UNION)
AND
U.S. CUSTOMS SERVICE,
SAN FRANCISCO REGION
(ACTIVITY)
CASE NO. O-AR-413
ORDER DISMISSING EXCEPTIONS
THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR BARBARA CHVANY FILED BY THE ACTIVITY PURSUANT TO SECTION
7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE AND
SECTION 2425.1 OF THE AUTHORITY'S RULES AND REGULATIONS. FOR THE
REASONS STATED BELOW, IT HAS BEEN DETERMINED THAT THE SUBJECT EXCEPTIONS
ARE INTERLOCUTORY AND MUST BE DISMISSED.
FROM THE DOCUMENTS SUBMITTED BY THE ACTIVITY, THE FOLLOWING PERTINENT
FACTS ARE DISCLOSED. ON JUNE 23, 1982, THE ARBITRATOR ISSUED AN AWARD
IN THE MATTER WHICH INVOLVED THE GRIEVANCES OF AN EMPLOYEE OVER TWO
SEPARATE DISCIPLINARY SUSPENSIONS. IN HER AWARD, THE ARBITRATOR
SUSTAINED ONE GRIEVANCE DENIED THE OTHER, AND DIRECTED CERTAIN REMEDIAL
ACTION BY THE ACTIVITY AS TO THE GRIEVANCE THAT WAS SUSTAINED. IN
ADDITION, THE ARBITRATOR AWARDED ATTORNEY FEES "INCURRED BY THE UNION IN
PREPARING, PRESENTING AND ARGUING THE MATTER OF THE" SUSTAINED
GRIEVANCE. HOWEVER, AS THE MATTER OF ATTORNEY FEES HAD NOT BEEN ARGUED
DURING THE HEARING BY THE ACTIVITY, THE ARBITRATOR OFFERED THE ACTIVITY
AN OPPORTUNITY TO REQUEST A FURTHER HEARING ON THE MATTER. THE
ARBITRATOR STATED:
ABSENT NOTIFICATION FROM THE AGENCY OF ITS DESIRE TO HAVE FURTHER
PROCEEDINGS FOR THIS
PURPOSE AND ABSENT NOTIFICATION OF A SETTLEMENT ON THIS ASPECT OF THE
REMEDY BY THE PARTIES,
THE ARBITRATOR WILL ISSUE AN ADDENDUM DECISION ON THE SUBJECT OF
REASONABLE ATTORNEYS' FEES
. . . NO LATER THAN THIRTY CALENDAR DAYS FROM THE DATE OF THIS
DECISION . . . .
IF THE AGENCY NOTIFIES THE UNION AND THE ARBITRATOR WITHIN FIFTEEN
(15) CALENDAR DAYS OF
THIS DECISION THAT IT WISHES A FURTHER HEARING . . . ON THE SUBJECT
OF ATTORNEYS' FEES, AN
ADDENDUM DECISION WILL BE ISSUED WITHIN 30 CALENDAR DAYS FOLLOWING
THOSE FURTHER PROCEEDINGS.
ON JULY 7, 1982, THE ACTIVITY REQUESTED A FURTHER HEARING BY THE
ARBITRATOR CONCERNING THE PAYMENT OF ATTORNEY FEES. THEREAFTER, ON JULY
21, 1982, THE ACTIVITY FILED ITS EXCEPTIONS TO THE ARBITRATOR'S AWARD
INDICATING, HOWEVER, THAT IT DID NOT VIEW THE AWARD AS A FINAL DECISION
AND THAT THE EXCEPTIONS SHOULD BE FOUND TO BE PREMATURE. ITS EXCEPTIONS
WERE FILED IN THE EVENT THE AUTHORITY WOULD VIEW THE ARBITRATOR'S AWARD
AS "FINAL" FOR PURPOSES OF APPEAL.
SECTION 2429.11 OF THE AUTHORITY'S RULES AND REGULATIONS PROVIDES:
"THE AUTHORITY AND THE GENERAL COUNSEL ORDINARILY WILL NOT CONSIDER
INTERLOCUTORY APPEALS." THAT IS, THE AUTHORITY ORDINARILY WILL NOT
CONSIDER AN APPEAL UNTIL A FINAL DECISION HAS BEEN RENDERED ON THE
ENTIRE PROCEEDING." MORE PARTICULARLY, IN AN ARBITRATION CASE, THE
AUTHORITY WILL ENTERTAIN EXCEPTIONS FILED BY A PARTY TO THE CASE ONLY
AFTER A FINAL AWARD HAS BEEN RENDERED BY THE ARBITRATOR ON THE ENTIRE
MATTER.
IN THIS CASE, AND AS RECOGNIZED BY THE ACTIVITY IN ITS EXCEPTIONS,
THE ARBITRATOR HAS NOT YET RENDERED A FINAL AWARD DISPOSING OF THE
ENTIRE MATTER INVOLVED IN THE PROCEEDING BEFORE HIM, INCLUDING THE
QUESTION OF ATTORNEY FEES. IN LIGHT OF THE ABOVE, THE ACTIVITY'S
EXCEPTIONS ARE CLEARLY INTERLOCUTORY AND THE FACTS AND CIRCUMSTANCES ARE
NOT SO EXTRAORDINARY AS TO WARRANT REVIEW OF THE EXCEPTIONS AT THIS
STAGE OF THE PROCEEDING.
ACCORDINGLY, SINCE THE ACTIVITY'S EXCEPTIONS ARE INTERLOCUTORY AND
AUTHORITY REVIEW IS NOT WARRANTED UNDER THE CIRCUMSTANCES, THE
EXCEPTIONS ARE HEREBY DISMISSED. HOWEVER, THE DISMISSAL IS WITHOUT
PREJUDICE TO THE RENEWAL OF ANY OF THE ACTIVITY'S CONTENTIONS IN
EXCEPTIONS DULY FILED WITH THE AUTHORITY AFTER A FINAL AWARD IS RENDERED
ON THE ENTIRE MATTER BY THE ARBITRATOR.
FOR THE AUTHORITY.
ISSUED, WASHINGTON, D.C., AUGUST 20, 1982
JAMES J. SHEPARD, EXECUTIVE DIRECTOR
9 FLRA 143; FLRA O-AR-248; AUGUST 20, 1982.
INTERNAL REVENUE SERVICE,
FRESNO REGIONAL CENTER
ACTIVITY
AND
NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 97
UNION
CASE NO. O-AR-248
DECISION
THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
ARBITRATOR ROBERT G. MEINERS FILED BY THE AGENCY UNDER SECTION 7122(A)
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE)
AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS. THE UNION FILED
AN OPPOSITION.
THE DISPUTE IN THIS MATTER AROSE WHEN THE ACTIVITY FAILED TO RECALL
THE GRIEVANT FROM A FURLOUGH ON TIME AND THUS HAD HER IMPROPERLY IN A
FURLOUGH STATUS FOR A PERIOD OF TWO WEEKS. THE ACTIVITY ADMITTED THAT
ITS ACTIONS CONSTITUTED A VIOLATION OF THE PARTIES' COLLECTIVE
BARGAINING AGREEMENT. HOWEVER, IT REFUSED TO GIVE THE GRIEVANT BACKPAY,
CONTENDING INSTEAD THAT THE OPPORTUNITY TO MAKE UP WORK WAS THE PROPER
REMEDY. A GRIEVANCE WAS FILED AND THE MATTER WAS ULTIMATELY SUBMITTED
TO ARBITRATION.
THE ISSUE BEFORE THE ARBITRATOR WAS WHETHER OFFERING THE GRIEVANT THE
OPPORTUNITY TO MAKE UP WORK THE NEXT TIME SHE WAS SCHEDULED TO BE
FURLOUGHED OR RECALLED WOULD MAKE THE GRIEVANT WHOLE SO THAT SHE WOULD
NOT HAVE SUFFERED A WITHDRAWAL OR REDUCTION OF PAY. THE ARBITRATOR
EMPHASIZED THAT THE GRIEVANT HAD CHANGED JOBS WITHIN THE ACTIVITY SINCE
THE TIME OF THE CONTRACT VIOLATION AND THAT THE RECORD WAS SILENT
REGARDING THE FURLOUGH AND RECALL POSSIBILITIES IN HER PRESENT POSITION.
CONSEQUENTLY, THE ARBITRATOR CONCLUDED THAT THE OPPORTUNITY TO MAKE UP
WORK WAS NOT A FEASIBLE REMEDY IN THESE CIRCUMSTANCES AND AWARDED
BACKPAY FOR THE PERIOD DURING WHICH THE GRIEVANT WAS IMPROPERLY
FURLOUGHED.
IN ITS EXCEPTION THE AGENCY CONTENDS THAT THE ARBITRATOR'S AWARD IS
DEFICIENT BECAUSE IT IS CONTRARY TO THE BACK PAY ACT OF 1966, 5 U.S.C.
5596(1976 AND SUPP. IV 1980). IN SUPPORT OF THIS EXCEPTION THE AGENCY
ALLEGES THAT BECAUSE THE GRIEVANT COULD HAVE HAD THE OPPORTUNITY TO MAKE
UP THE WORK AT SOME FUTURE TIME THERE WAS NO WITHDRAWAL OR REDUCTION IN
PAY SO AS TO QUALIFY HER FOR BACKPAY UNDER THE BACK PAY ACT.
THE AGENCY'S EXCEPTION FAILS TO PROVIDE A BASIS FOR FINDING THE AWARD
DEFICIENT. THE AGENCY HAS NOT SHOWN THAT THE ARBITRATOR'S AWARD OF
BACKPAY TO THE GRIEVANT AS THE PROPER REMEDY FOR THE CONCEDED CONTRACT
VIOLATION IS IN ANY MANNER CONTRARY TO THE BACK PAY ACT. THE ARBITRATOR
SPECIFICALLY FOUND THAT AN AWARD OF BACKPAY COVERING THE TWO-WEEK PERIOD
THE GRIEVANT WOULD HAVE WORKED BUT FOR THE CONTRACT VIOLATION WAS THE
ONLY REMEDY THAT WOULD MAKE THE GRIEVANT WHOLE IN THE CIRCUMSTANCES OF
THIS CASE. THE AGENCY'S RELIANCE ON THE OPPORTUNITY TO MAKE UP THE WORK
AS INDICATIVE THAT THERE WAS NO REDUCTION IN PAY IS MISPLACED. THE
REDUCTION IN PAY OCCURRED AT THE TIME OF THE CONTRACT VIOLATION, AND IT
WAS THIS REDUCTION THE ARBITRATOR WAS REMEDYING, SPECIFICALLY FINDING
THAT THE GRIEVANT'S CHANGED CIRCUMSTANCES PRECLUDED APPLYING THE
ACTIVITY'S PROPOSED REMEDY OF MAKE-UP WORK. THUS, THE AGENCY'S
EXCEPTION ESSENTIALLY CONSTITUTES AN ATTEMPT TO HAVE ITS OWN REMEDY
SUBSTITUTED FOR AND PREVAIL OVER THE REMEDY ACTUALLY FORMULATED BY THE
ARBITRATOR AND CONSEQUENTLY PROVIDES NO BASIS FOR FINDING THE AWARD
DEFICIENT. VETERANS ADMINISTRATION HOSPITAL, NEWINGTON, CONNECTICUT AND
'NATIONAL ASSOCIATION OF GOVERNMENT NEWINGTON. CONNECTICUT AND NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-109, 5 FLRA NO. 12(1981).
THE AGENCY'S EXCEPTION IS THEREFORE DENIED.
ISSUED, WASHINGTON, D.C., AUGUST 20, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
9 FLRA 142; FLRA O-NG-443; AUGUST 16, 1982.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1760
UNION
AND
DEPARTMENT OF [HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY ADMINISTRATION
NORTHEAST PROGRAM SERVICE CENTER
ACTIVITY
CASE NO. O-NG-443
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE).
UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES'
CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
UNION PROPOSAL 1
THE EMPLOYER AGREES THAT NO EMPLOYEE WILL BE DEMOTED, TERMINATED OR
THREATENED WITH SUCH
ACTION BASED UPON WORK PERFORMANCE IN THE RESTRUCTURED POSITIONS
WITHOUT FIRST PROVIDING THE
EMPLOYEE AN OPPORTUNITY TO PERFORM SATISFACTORILY AT A LIKE-GRADED
POSITION
THE AUTHORITY CONCLUDES THAT UNION PROPOSAL 1 IMPROPERLY WOULD
ESTABLISH A CONDITION (PROVIDING AN EMPLOYEE PERFORMING UNSATISFACTORILY
THE "OPPORTUNITY TO PERFORM SATISFACTORILY AT A LIKE-GRADED POSITION")
UPON THE AGENCY'S ABILITY TO TERMINATE OR DEMOTE, I.E., TO "REMOVE" OR
TO "REDUCE IN GRADE" EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF THE
STATUTE. SEE NATIONAL LABOR RELATIONS BOARD UNION, LOCAL 19 AND
NATIONAL LABOR RELATIONS BOARD, REGION 19, 2 FLRA 775(1980) (PROPOSAL
ESTABLISHING A CONDITION UPON MANAGEMENT'S ABILITY TO ASSIGN SPECIFIED
DUTIES TO AN IDENTIFIED EMPLOYEE IS INCONSISTENT WITH THE AGENCY'S RIGHT
"TO ASSIGN WORK"). FURTHERMORE, THE CONDITION PRESCRIBED IN THE
PROPOSAL WOULD ITSELF INTERFERE WITH THE EXERCISE OF MANAGEMENT'S RIGHT
UNDER SECTION 7106(A)(2)(A) TO "ASSIGN" EMPLOYEES. CF. NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1624 AND AIR FORCE CONTRACT
MANAGEMENT DIVISION, HAGERSTOWN, MARYLAND, 3 FLRA 142(1980) (PROPOSAL TO
DETAIL TEMPORARILY INCAPACITATED EMPLOYEES TO COMPATIBLE DUTIES IS
INCONSISTENT WITH MANAGEMENT'S SECTION 7106(A)(2)(A) RIGHT TO "ASSIGN"
EMPLOYEES). THEREFORE, UNION PROPOSAL 1 WOULD DIRECTLY INTERFERE WITH
THESE MANAGEMENT RIGHTS, NOT ONLY INDIVIDUALLY, BUT ALSO COLLECTIVELY BY
CONDITIONING THE EXERCISE OF ONE RIGHT UPON THE PRIOR EXERCISE OF THE
OTHER IN A PRESCRIBED MANNER. THE PROPOSAL CONSEQUENTLY IS INCONSISTENT
WITH SECTION 7106(A)(2)(A) AND IS OUTSIDE THE DUTY TO BARGAIN.
UNION PROPOSAL 3
THE TRAINING OF EMPLOYEES WILL BE ACCOMPLISHED IN SUCH A WAY AS THE
EMPLOYEES WILL BE ABLE
TO FULLY PARTICIPATE IN FLEXTIME.
UNION PROPOSAL 4
ATTENDANCE IN CLASSES WILL NOT PRECLUDE ANY EMPLOYEE FROM
PARTICIPATING IN FLEXTIME.
THESE TWO PROPOSALS, COMBINED FOR CONVENIENCE OF DISCUSSION, REQUIRE
THAT THE AGENCY NOT SCHEDULE TRAINING IN SUCH A MANNER AS TO INTERFERE
WITH ATTENDEES' "FLEXTIME" HOURS. IT IS UNCLEAR ON THEIR FACE WHETHER
THESE PROPOSALS ARE INTENDED TO ADDRESS TRAINING PROVIDED BARGAINING
UNIT EMPLOYEES DURING THEIR DUTY HOURS. HOWEVER, THE AGENCY, IN
RESPONDING TO THE UNION'S REQUEST FOR AN ALLEGATION OF NONNEGOTIABILITY
COVERING THESE TWO PROPOSALS, STATED:
(I)T HAS BEEN THE PRACTICE OF THIS OFFICE SINCE THE INCEPTION OF
FLEXTIME IN NOVEMBER,
1977(AND PRIOR TO THAT AT THE COLLEGE POINT WORKSITE) TO SUSPEND
FLEXTIME WHEN CONDUCTING
FORMAL CLASSROOM TRAINING.
ACCORDINGLY, IT IS CONCLUDED THAT THE TWO PROPOSALS ARE INTENDED TO
CHANGE THE ABOVE MANAGEMENT PRACTICE OF SUSPENDING FLEXTIME FOR
EMPLOYEES ATTENDING TRAINING DURING DUTY HOURS. IN THIS RESPECT, THE
PROPOSALS ARE NOT MATERIALLY DIFFERENT FROM SECTION 1 OF PROPOSAL I
WHICH WAS BEFORE THE AUTHORITY IN INTERNATIONAL ASSOCIATION OF FIRE
FIGHTERS, LOCAL F-61 AND PHILADELPHIA NAVAL SHIPYARD, 3 FLRA 438(1980),
AND HELD TO BE OUTSIDE THE DUTY TO BARGAIN UNDER THE STATUTE. IN THAT
CASE, THE AUTHORITY RULED THAT THE UNION'S PROPOSAL TO LIMIT THE ABILITY
OF THE AGENCY TO ASSIGN TRAINING AT ALL AFTER SPECIFIED HOURS DURING THE
WORKDAY OR ON CERTAIN DAYS OF A FIRE FIGHTER'S WORKWEEK WAS INCONSISTENT
WITH MANAGEMENT'S RIGHT UNDER SECTION 7106(A)(2)(B) "TO ASSIGN WORK" TO
EMPLOYEES. HENCE, FOR THE REASONS STATED IN THE PHILADELPHIA NAVAL
SHIPYARD DECISION, UNION PROPOSALS 3 AND 4, HEREIN, MUST ALSO BE HELD TO
BE OUTSIDE THE DUTY TO BARGAIN.
UNION PROPOSAL 5
AN EMPLOYEE MAY REQUEST REVIEW OF ANY ERROR HE RECEIVES FROM THE
BRANCH TECHNICAL ASSISTANT
WHO SHALL RESPOND TO THE REQUEST FOR REVIEW IN WRITING.
UNION PROPOSAL 5 WOULD REQUIRE, FOR THE TERM OF THE AGREEMENT, THAT A
DESIGNATED EMPLOYEE RESPOND IN WRITING TO REQUESTS MADE BY EMPLOYEES IN
THE BARGAINING UNIT FOR REVIEW OF ERRORS. THIS PROPOSAL IS THEREFORE
SIMILAR IN ALL MATERIAL ASPECTS TO UNION PROPOSAL VII, WHICH THE
AUTHORITY HELD TO BE OUTSIDE THE DUTY TO BARGAIN, IN NATIONAL TREASURY
EMPLOYEES UNION AND DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE, 6
FLRA NO. 97(1981). THAT PROPOSAL WOULD LIKEWISE HAVE SPECIFIED DUTIES
TO BE PERFORMED BY A NAMED EMPLOYEE DURING THE LIFE OF THE AGREEMENT.
IN FINDING THE PROPOSAL VIOLATED THE MANAGEMENT RIGHT "TO ASSIGN WORK"
UNDER SECTION 7106(A)(2)(B), THE AUTHORITY STATED, " . . . TO THE EXTENT
THE PROPOSAL WOULD REQUIRE THE ASSIGNMENT OF THE WORK OF PREPARING THE
SUMMARY OF REVIEW RESULTS TO A SPECIFIED AGENCY EMPLOYEE AND,
IMPLICITLY, WOULD PRECLUDE THE ASSIGNMENT OF THOSE DUTIES TO OTHER
EMPLOYEES, IT IS NONNEGOTIABLE." THUS, FOR THE REASONS STATED IN THE
CITED INTERNAL REVENUE SERVICE DECISION, UNION PROPOSAL 5, HEREIN, IS
LIKEWISE OUTSIDE THE DUTY TO BARGAIN.
FINALLY, WITH REGARD TO UNION PROPOSAL 2 WHICH CONCERNS STAYS OF
DISCIPLINARY ACTION PENDING THE EXHAUSTION BY THE AFFECTED EMPLOYEES OF
ALL APPEAL RIGHTS, THE AGENCY DOES NOT ASSERT THAT THE PROPOSAL IS
NONNEGOTIABLE, I.E., INCONSISTENT WITH LAW OR REGULATION. RATHER, IT
CONTENDS THAT BARGAINING ON THE PROPOSAL IS PRECLUDED EITHER BY CURRENT
NEGOTIATIONS ON THE SAME SUBJECT AT THE NATIONAL LEVEL OR BY THE CURRENT
NATIONAL AGREEMENT. THUS THE DISPUTE OVER UNION PROPOSAL 2 IS
IMPROPERLY BEFORE THE AUTHORITY AS A NEGOTIABILITY ISSUE FOR RESOLUTION
PURSUANT TO SECTION 7117 OF THE STATUTE. RATHER, SINCE THE AGENCY HAS
NEVER ASSERTED THAT THE PROPOSAL IS NOT NEGOTIABLE UNDER THE STATUTE BUT
ONLY THAT NEGOTIATIONS ARE PRECLUDED BY MATTERS RELATING TO THE NATIONAL
AGREEMENT, THE DISPUTE SHOULD BE RESOLVED EITHER BY RESORT TO THE UNFAIR
LABOR PRACTICE PROCEDURES OF THE STATUTE OR THROUGH THE PARTIES'
NEGOTIATED GRIEVANCE PROCEDURE. SEE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1661 AND DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL CORRECTIONAL INSTITUTION, DANBURY, CONNECTICUT, 2 FLRA
412(1980); AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 7 FLRA
NO. 91(1982).
ACCORDINGLY, IN VIEW OF THE ABOVE FINDINGS, PURSUANT TO SECTION
2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS(5 CFR 2424.10(1981)),
IT IS ORDERED THAT THE PETITION FOR REVIEW BE, AND IT HEREBY IS,
DISMISSED IN ITS ENTIRETY.
ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
9 FLRA 141; FLRA O-NG-380; AUGUST 16, 1982.
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 3399
UNION
AND
HARRY S. TRUMAN
MEMORIAL VETERANS
HOSPITAL, COLUMBIA, MISSOURI
AGENCY
CASE NO. O-NG-380
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE),
AND RAISES ISSUES REGARDING THE NEGOTIABILITY OF THE FOLLOWING TWO UNION
PROPOSALS. UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, THE
AUTHORITY MAKES THE FOLLOWING DETERMINATIONS. /1/
UNION PROPOSAL 1
RETAIN PARKING LOTS A AND D EXCLUSIVELY FOR THE USE OF EMPLOYEES.
UNION PROPOSAL 2
HOSPITAL TO CONSTRUCT A SET OF ENTRANCE AND EXIT GATES TO BE ADDED TO
THE EAST END OF
PARKING LOT D IN ORDER TO ALLOW TRAFFIC FLOW DIRECTLY TO AND FROM
MONK DRIVE.
THE NEGOTIABILITY DISPUTE CONCERNS WHICH OF THE AGENCY'S PARKING
FACILITIES WILL BE USED BY EMPLOYEES. IT ARISES OUT OF THE SAME FACTS
AND CIRCUMSTANCES AS AN UNFAIR LABOR PRACTICE CHARGE FILED BY THE UNION
(7-CA-756); THE CHARGE INVOLVED THE ALLEGED FAILURE OF THE AGENCY TO
NEGOTIATE ITS DECISION TO USE ITS PARKING LOT A AT THE HOSPITAL FOR
VISITOR RATHER THAN EMPLOYEE PARKING AND TO USE ITS LOT B FOR EMPLOYEE
RATHER THAN VISITOR AND PATIENT PARKING. INSOFAR AS THE DISPOSITION OF
THE CHARGE RELATES TO PROPOSAL 1, HEREIN, THE REGIONAL DIRECTOR FOUND
THAT ISSUANCE OF A COMPLAINT WAS NOT WARRANTED BECAUSE THE AGENCY'S
DECISION CONCERNED THE USE OF ITS PARKING FACILITIES IN ORDER TO
"ACCOMMODATE ITS CLIENTELE MOST EFFECTIVELY . . . NOT A MANDATORILY
BARGAINABLE MATTER." INSOFAR AS DISPOSITION OF THE CHARGE RELATES TO
PROPOSAL 2, HEREIN, THE REGIONAL DIRECTOR FOUND ESSENTIALLY THAT
ISSUANCE OF A COMPLAINT WAS NOT WARRANTED BECAUSE THE AGENCY HAD
FULFILLED ITS OBLIGATION TO BARGAIN OVER THE IMPACT AND IMPLEMENTATION
OF ITS DECISION PRIOR TO ACTUAL IMPLEMENTATION. NO APPEAL OF THE
REGIONAL DIRECTOR'S DETERMINATION WAS TAKEN TO THE GENERAL COUNSEL.
NOTING THAT THE FACTUAL CIRCUMSTANCES INVOLVED IN THE DISPUTE IN THIS
CASE ARE UNCLEAR BASED SOLELY UPON THE UNION'S SUBMISSIONS, SEE NOTE 1,
SUPRA, AND NOTING FURTHER THAT NO APPEAL WAS TAKEN FROM THE REGIONAL
DIRECTOR'S DECISION TO DISMISS THE UNFAIR LABOR PRACTICE CHARGE, THE
AUTHORITY REFERS TO THE FACTS SET FORTH IN THE REGIONAL DIRECTOR'S
DECISION. /2/ PROPOSAL 1 WOULD REQUIRE BARGAINING OVER MANAGEMENT'S
DECISION AS TO WHICH OF THE AGENCY'S PARKING FACILITIES WILL BE USED TO
ACCOMMODATE ITS CLIENTELE. IT WOULD REQUIRE "EXCLUSIVE" USE BY
EMPLOYEES OF THOSE FACILITIES WHICH MANAGEMENT HAS DESIGNATED FOR USE BY
HOSPITAL CLIENTELE IN ORDER TO ACCOMMODATE THEM MOST EFFECTIVELY. THE
AUTHORITY CONCLUDES THAT SUCH A DESIGNATION BY THE AGENCY CONCERNING THE
USE OF ITS PARKING FACILITY IS A DETERMINATION WITH RESPECT TO THE
"MEANS OF PERFORMING WORK" WITHIN THE MEANING OF SECTION 7106(B)(1) OF
THE STATUTE. SEE NATIONAL TREASURY EMPLOYEES UNION AND U.S. CUSTOMS
SERVICE, REGION VIII, SAN FRANCISCO, CALIFORNIA, 2 FLRA 254, 258(1979).
THE PROPOSAL WOULD DIRECTLY INTERFERE WITH MANAGEMENT'S DETERMINATION,
IN EFFECT, PREVENTING MANAGEMENT FROM ACHIEVING ITS INTENDED RESULT.
UNDER THE STATUTE, DETERMINATIONS AS TO THE MEANS OF PERFORMING WORK ARE
NOT WITHIN THE DUTY TO BARGAIN ALTHOUGH THEY ARE NEGOTIABLE AT THE
ELECTION OF THE AGENCY. HERE, THE AGENCY HAS ELECTED NOT TO BARGAIN.
AS TO PROPOSAL 2, IT WOULD NOT REQUIRE NEGOTIATIONS OVER MANAGEMENT'S
DECISION AS TO WHICH PARKING FACILITIES WILL BE USED BY AGENCY
CLIENTELE. RATHER, IT IS CONCERNED WITH THE IMPACT AND IMPLEMENTATION
OF THAT DECISION. HOWEVER, AS ALREADY MENTIONED, THE REGIONAL DIRECTOR
REFUSED TO ISSUE A COMPLAINT IN THE RELATED UNFAIR LABOR PRACTICE CASE
BECAUSE HE FOUND THAT THE AGENCY HAD MET ITS DUTY TO BARGAIN WITH
RESPECT TO IMPACT AND IMPLEMENTATION OF ITS DECISION. HENCE, IT IS
CONCLUDED THAT THE NEGOTIABILITY ISSUE RAISED BY PROPOSAL 2 IS MOOT.
CF. CASES CITED NOTE 2 SUPRA (NEGOTIABILITY ISSUES RENDERED MOOT BY
REGIONAL DIRECOTR'S DECISIONS THAT NO CHANGES IN AGENCY POLICY SUCH AS
TO GIVE RISE TO BARGAINING OBLIGATIONS).
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE UNION'S
PETITION FOR REVIEW AS TO PROPOSAL 1 BE, AND IT HEREBY IS, DISMISSED.
FURTHER, WITHOUT PASSING ON THE MERITS OF THE DISPUTE, IT IT ORDERED
THAT THE UNION'S PETITION FOR REVIEW AS TO PROPOSAL 2 BE, AND IT HEREBY
IS, DISMISSED.
ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ THE AGENCY'S STATEMENT OF POSITION WAS FILED MORE THAN THIRTY
DAYS AFTER RECEIPT BY THE AGENCY HEAD OF THE UNION'S PETITION AND THUS
IS AFTER RECEIPT BY THE AGENCY HEAD OF THE UNION'S PETITION AND THUS IS
UNTIMELY UNDER SECTION 7117(C)(3) OF THE STATUTE AND SECTION 2424.6 OF
THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.6(1981)). THEREFORE,
THE AGENCY'S STATEMENT HAS NOT BEEN CONSIDERED BY THE AUTHORITY IN
MAKING ITS DECISION HEREIN. ADDITIONALLY, THE AGENCY'S MOTIONS FOR
LEAVE TO FILE ADDITIONAL DOCUMENTS ARE DENIED. SEE 5 CFR 2424.8(1981).
/2/ IN THIS REGARD, THE AUTHORITY REFERS ONLY TO THE FACTUAL
CONCLUSIONS DRAWN BY THE REGIONAL DIRECTOR AND DOES NOT RELY UPON THE
REGIONAL DIRECTOR'S CONCLUSION THAT THE PROPOSAL IS "NOT A MANDATORILY
BARGAINABLE MATTER." SEE GENERALLY NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1363 AND HEADQUARTERS, U.S. ARMY GARRISON, YONGSAN,
KOREA, 8 FLRA NO. 26(1982); NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1363 AND HEADQUARTERS, U.S. ARMY GARRISON, YONGSAN, KOREA, 8 FLRA
NO. 39(1982).
9 FLRA 140; FLRA O-NG-63; AUGUST 16, 1982.
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2272
UNION
AND
DEPARTMENT OF JUSTICE,
U.S. MARSHALS SERVICE,
DISTRICT OF COLUMBIA
AGENCY
CASE NO. O-NG-63
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE).
OF THE TWENTY-SIX PROPOSALS CONTAINED IN THIS NEGOTIABILITY APPEAL, THE
AGENCY RAISES THE THRESHOLD QUESTION OF WHETHER FIFTEEN OF THE PROPOSALS
ARE PROPERLY THE SUBJECT OF A NEGOTIABILITY APPEAL AT THIS TIME.
THE UNION, HEREIN, IS ONE OF THE LOCAL UNIONS COMPRISING THE
INTERNATIONAL COUNCIL OF UNITED STATES MARSHALS SERVICE LOCALS, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (THE COUNCIL). THE COUNCIL
NEGOTIATED WITH THE U.S. MARSHALS SERVICE A MASTER AGREEMENT COVERING A
UNIT OF ALL ELIGIBLE EMPLOYEES OF THE AGENCY, NATIONWIDE. THE MASTER
AGREEMENT, WHICH THE PARTIES HAVE EXTENDED INDEFINITELY PENDING
RENEGOTIATION, PROVIDES FOR NEGOTIATING LOCAL SUPPLEMENTAL AGREEMENTS
"SUBJECT TO THE PROVISIONS OF (THE) NATIONAL AGREEMENT."
THE UNION INITIATED NEGOTIATIONS ON FORTY PROPOSALS FOR A LOCAL
SUPPLEMENTAL AGREEMENT; ELEVEN WERE DECLARED TO BE NEGOTIABLE BY THE
AGENCY AND THREE WERE WITHDRAWN BY THE UNION. OF THE REMAINING
TWENTY-SIX PROPOSALS, THE AGENCY, IN ITS SUBMISSION TO THE AUTHORITY,
HAS ALLEGED THAT FIFTEEN PROPOSALS CONCERN MATTERS WHICH ARE COVERED BY
THE MASTER AGREEMENT AND ARE CONSEQUENTLY NOT PROPER SUBJECTS FOR
INCLUSION IN A LOCAL SUPPLEMENTAL AGREEMENT. THE REMAINING ELEVEN
PROPOSALS ARE ALLEGED BY THE AGENCY TO BE NONNEGOTIABLE UNDER VARIOUS
PROVISIONS OF THE STATUTE.
AS TO THE FIFTEEN PROPOSALS CONCERNING WHICH THE DISPUTE IS OVER THE
APPLICATION OF THE NATIONWIDE MASTER AGREEMENT, THE AUTHORITY DECIDED IN
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1661 AND
DEPARTMENT OF JUSTICE, BUREAU OF PRISONS, FEDERAL CORRECTIONAL
INSTITUTION, DANBURY, CONNECTICUT, 2 FLRA 411(1980), WITH RESPECT TO A
QUESTION SUBSTANTIALLY IDENTICAL TO THE ONE PRESENTED HERE, THAT THE
PROPER FORUM IN WHICH TO RESOLVE DISPUTES OVER THE MEANING OF PROVISIONS
CONTAINED IN THE MASTER AGREEMENT WOULD BE THAT WHICH THE PARTIES
THEMSELVES HAVE ADOPTED FOR SUCH PURPOSE. FOR THE REASONS FULLY SET
FORTH IN THAT DECISION, THE AUTHORITY FINDS THIS PORTION OF THE INSTANT
PETITION IS NOT APPROPRIATE FOR RESOLUTION UNDER THE PROCEDURES SET
FORTH IN SECTION 7117 OF THE STATUTE AND PART 2424 OF THE AUTHORITY'S
RULES AND REGULATIONS. SEE ALSO AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2272 AND DEPARTMENT OF JUSTICE, U.S. MARSHALS
SERVICE, DISTRICT OF COLUMBIA, 2 FLRA 908(1980).
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS(5 CFR 2424.10(1981)), IT IS ORDERED THAT THE PORTIONS OF THE
UNION'S PETITION FOR REVIEW RELATING TO THOSE FIFTEEN PROPOSALS BE, AND
THEY HEREBY ARE, DISMISSED, WITHOUT PREJUDICE TO THE APPROPRIATE RENEWAL
BY THE UNION OF ITS CONTENTION THAT THE MATTERS IN DISPUTE ARE
NEGOTIABLE UNDER THE STATUTE IN A PETITION DULY FILED WITH THE AUTHORITY
AFTER IT IS RESOLVED, UNDER APPLICABLE PROCEDURES, THAT BARGAINING ON
SUCH MATTERS IS NOT PRECLUDED BY THE CONTROLLING AGREEMENT.
THE REMAINING PROPOSALS IN DISPUTE ARE CONSIDERED BELOW.
UNION PROPOSAL 1
DEPUTIES WHO SERVE PROCESSES AND WORK IN THE SAME SECTION, AND (WHO)
WANT TO WORK AS
PARTNERS SHOULD BE ALLOWED TO DO SO AS LONG AS THEY GET THEIR JOB
DONE SATISFACTORILY TO
MANAGEMENT.
UNION PROPOSAL 2
THERE SHOULD BE AMPLE PERSONNEL WORKING IN THE SUPERIOR COURT AND
U.S. DISTRICT COURT
CELLBLOCKS FOR THE SAFETY OF THE DEPUTIES AS WELL AS OTHERS.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSALS 1 AND 2 ARE INCONSISTENT WITH
THE AGENCY'S RIGHT, UNDER SECTION 7106(B)(1) OF THE STATUTE, /1/ TO
DETERMINE THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES OR POSITIONS
ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT, OR TOUR OF
DUTY.
OPINION
CONCLUSION AND ORDER: UNION PROPOSALS 1 AND 2 ARE INCONSISTENT WITH
THE AGENCY'S RIGHTS UNDER SECTION 7106(B)(1) OF THE STATUTE. THE
MATTERS INVOLVED ARE BARGAINABLE, THEREFORE, ONLY AT THE ELECTION OF THE
AGENCY AND THE AGENCY HAS DECLINED TO BARGAIN ON THEM. ACCORDINGLY,
PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5
CFR 2424.10(1981)), IT IS ORDERED THAT THE PORTIONS OF THE UNION'S
PETITION FOR REVIEW RELATING TO UNION PROPOSALS 1 AND 2 BE, AND THEY
HEREBY ARE, DISMISSED.
REASONS: IN NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1167 AND
DEPARTMENT OF THE AIR FORCE, HEADQUARTERS, 31ST COMBAT SUPPORT
GROUP(TAC), HOMESTEAD AIR FORCE BASE, FLORIDA, 6 FLRA NO.
105(1981)(UNION PROPOSAL 6), AFFIRMED AS TO OTHER MATTERS SUB NOM.
NATIONAL FEDERATION OF FEDERAL EMPLOYEES V. FLRA, F.2D (D.C. CIR. 1982),
THE AUTHORITY HELD THAT A PROPOSAL WHICH WOULD HAVE PREVENTED AN
EMPLOYEE FROM BEING DIRECTED TO WORK ALONE, IN POTENTIALLY HAZARDOUS
AREAS, DIRECTLY INTERFERED WITH THE AGENCY'S RIGHT UNDER SECTION
7106(B)(1) OF THE STATUTE TO DETERMINE THE NUMBERS OF EMPLOYEES ASSIGNED
TO ANY WORK PROJECT OR TOUR OF DUTY. UNION PROPOSAL 1 SIMILARLY WOULD
PREVENT, IN CERTAIN CIRCUMSTANCES, AN EMPLOYEE FROM BEING DIRECTED TO
WORK ALONE AND BEARS NO MATERIAL DIFFERENCE FROM THE PROPOSAL HELD TO BE
OUTSIDE THE DUTY TO BARGAIN IN HOMESTEAD AIR FORCE BASE. FOR THE
REASONS STATED THEREIN, IT ALSO IS OUTSIDE THE DUTY TO BARGAIN.
WITH REGARD TO UNION PROPOSAL 2, IN AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR
FORCE BASE, OHIO, 2 FLRA 603, 620-622(1980), ENFORCED AS TO OTHER
MATTERS SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS
AUTHORITY, 659 F.2D 1140(D.C.CIR. 1981), CERT. DENIED SUB NOM. AFGE V.
FLRA, U.S. , 102 S. CT. 1443(1982), THE AUTHORITY HELD THAT A PROPOSAL,
WHICH WOULD HAVE REQUIRED THE AGENCY, WHERE AUTHORIZED TO DO SO, TO
PROVIDE AN "ADEQUATE NUMBER" OF OVERHIRES, DIRECTLY CONCERNED THE
NUMBERS OF EMPLOYEES ASSIGNED TO ORGANIZATIONAL SUBDIVISIONS OF THE
AGENCY AND CONFLICTED WITH THE AGENCY'S RIGHT TO ELECT NOT TO BARGAIN ON
SUCH MATTERS UNDER SECTION 7106(B)(1) OF THE STATUTE. UNION PROPOSAL 2,
HEREIN, SIMILARLY WOULD REQUIRE THE AGENCY TO MEET AN "AMPLE" STAFFING
LEVEL AND IN THIS REGARD BEARS NO MATERIAL DIFFERENCE FROM THE PROPOSAL
HELD OUTSIDE THE DUTY TO BARGAIN IN THE WRIGHT-PATTERSON DECISION.
HENCE, THIS PROPOSAL, ALSO, INTERFERES WITH THE AGENCY'S RIGHT TO
DETERMINE THE NUMBERS OF EMPLOYEES TO BE ASSIGNED TO ANY ORGANIZATIONAL
SUBDIVISION AND IS BARGAINABLE ONLY AT THE ELECTION OF THE AGENCY UNDER
SECTION 7106(B)(1) OF THE STATUTE.
UNION PROPOSAL 3
THERE SHOULD BE NO TIME LIMITATION PLACED ON THE NUMBER OF PROCESSES
SERVED IN AN HOUR OR
IN A DAY.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL 3 IS INCONSISTENT WITH THE
AGENCY'S RIGHT TO DIRECT EMPLOYEES UNDER SECTION 7106(A)(2)(A) AND TO
ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE STATUTE. /2/
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL 3 IS INCONSISTENT WITH THE
AGENCY'S RIGHT TO DIRECT EMPLOYEES UNDER SECTION 7106(A)(2)(A) AND TO
ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE STATUTE AND THEREFORE THE
DUTY TO BARGAIN DOES NOT EXTEND TO THIS MATTER. ACCORDINGLY, PURSUANT
TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS(5 CFR
2424.10(1981)), IT IS ORDERED THAT THE PORTION OF THE UNION'S PETITION
FOR REVIEW RELATING TO UNION PROPOSAL 3 BE, AND IT HEREBY IS, DISMISSED.
REASONS: THE RIGHT TO DETERMINE THE QUANTITY OF WORK TO BE PERFORMED
BY EMPLOYEES IS ENCOMPASSED WITHIN MANAGEMENT'S STATUTORY RIGHTS TO
DIRECT EMPLOYEES AND ASSIGN WORK. NATIONAL TREASURY EMPLOYEES UNION AND
DEPARTMENT OF THE TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA 768(1980),
APPEAL DOCKETED SUB NOM. NATIONAL TREASURY EMPLOYEES UNION V. FLRA, NO.
80-1895(D.C. CIR. AUG. 4, 1980). IN THAT CASE THE PROPOSAL IN DISPUTE
WOULD HAVE PRESCRIBED THE AMOUNT OF WORK EMPLOYEES MUST PRODUCE TO
RETAIN THEIR JOBS. THE AUTHORITY HELD THAT BY THUS ESTABLISHING THE
MINIMUM OUTPUT WHICH THE AGENCY COULD REQUIRE OF EMPLOYEES, THE PROPOSAL
DIRECTLY INTERFERED WITH THE RIGHTS OF MANAGEMENT TO DIRECT EMPLOYEES
AND ASSIGN WORK UNDER SECTION 7106(A)(2) OF THE STATUTE. THE INSTANT
DISPUTED PROPOSAL, ACCORDING TO THE UNION, WOULD PRECLUDE MANAGEMENT
FROM ESTABLISHING THE MAXIMUM NUMBER OF PROCESSES WHICH COULD BE SERVED
PER HOUR OR DAY. WHILE THIS PROPOSAL CONCERNING A MAXIMUM OBVIOUSLY IS
DIFFERENT FROM THE ONE IN NATIONAL TREASURY EMPLOYEES UNION WHICH
ESTABLISHED A MINIMUM, IN OUT VIEW, THE DISTINCTION IS NOT SIGNIFICANT
FOR PURPOSES OF THIS DECISION. UNDER BOTH PROPOSALS, MANAGEMENT'S RIGHT
TO DETERMINE THE QUANTITY OF PRODUCTION WOULD BE DIRECTLY PRESCRIBED.
UNION PROPOSAL 4
DEPUTIES SHOULD BE REQUESTED TO SUBMIT ONLY ONE MEMORANDUM TO
MANAGEMENT IF HE OR SHE DOES
NOT WANT TO WORK OVERTIME, SPECIAL ASSIGNMENTS, CELLBLOCK OVERTIME,
ETC.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL 4 IS INCONSISTENT WITH THE
AGENCY'S RIGHT TO DIRECT EMPLOYEES UNDER SECTION 7106(A)(2)(A) AND TO
ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE STATUTE, AS ALLEGED BY
THE AGENCY.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL 4 IS NOT INCONSISTENT WITH THE
AGENCY'S RIGHT TO DIRECT EMPLOYEES UNDER SECTION 7106(A)(2)(A) AND TO
ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE STATUTE. INSTEAD, IT IS
A PROCEDURE, UNDER SECTION 7106(B)(2) OF THE STATUTE, /3/ WHICH
MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE IN EXERCISING THEIR
RESERVED RIGHTS. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS(5 CFR 2424.10(1981)), IT IS ORDERED
THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE
PARTIES) BARGAIN CONCERNING UNION PROPOSAL 4. /4/
REASONS: THE PROPOSAL WOULD ESTABLISH A FORMAT WHEREBY EMPLOYEES
COULD INDICATE TO MANAGEMENT THAT THEY ARE NOT INTERESTED IN CERTAIN
OVERTIME ASSIGNMENTS. CONTRARY TO THE AGENCY'S ASSERTION, HOWEVER,
NOTHING ON THE FACE OF THE PROPOSAL WOULD PREVENT THE AGENCY FROM
ACCOMPLISHING OVERTIME WORK BY DIRECTING EMPLOYEES TO PERFORM IT
NOTWITHSTANDING THEIR PREFERENCE AND THE UNION SPECIFICALLY INDICATES
THAT ITS PROPOSAL SHOULD NOT BE CONSTRUED SO AS TO DENY THE AGENCY THIS
ABILITY. ACCORDINGLY, THE PROPOSAL WOULD NOT INTERFERE WITH THE
AGENCY'S RIGHTS IN THIS REGARD. RATHER IT WOULD ESTABLISH A PROCEDURE,
UNDER SECTION 7106(B)(2) OF THE STATUTE, WHICH MANAGEMENT OFFICIALS OF
THE AGENCY WILL OBSERVE IN EXERCISING THEIR RESERVED RIGHTS AND IS
WITHIN THE DUTY TO BARGAIN. /5/
UNION PROPOSAL 5
CITIZENS OR DEPUTIES FILING A COMPLAINT OR BRINGING A SERIOUS CHARGE
AGAINST A DEPUTY
U.S. MARSHAL SHOULD SIGN A PREPARED STATEMENT STATING THE ALLEGED
CHARGE IN THE COMPLAINT ARE
TRUE. IF COMPLAINANT KNOWINGLY FALSIFIES, MISREPRESENT OR LIE
(HE/SHE) SHOULD RECEIVE A HARSH
DISCIPLINE, IF A DEPUTY, AND IF A CITIZEN SHOULD BE PROSECUTED BY THE
U.S. ATTORNEY. ANY
COMPLAINT LEVIED AGAINST A DEPUTY BY ANOTHER DEPUTY OR CITIZEN SHOULD
BE SHOWN TO HIM OR HER
UPON REQUEST.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL 5 IS INCONSISTENT WITH THE
AGENCY'S RIGHT TO DETERMINE ITS INTERNAL SECURITY PRACTICES UNDER
SECTION 7106(A)(1) OF THE STATUTE. /6/
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL 5 IS INCONSISTENT WITH THE
AGENCY'S RIGHT TO DETERMINE ITS INTERNAL SECURITY PRACTICES.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE UNION'S
PETITION FOR REVIEW RELATING TO UNION PROPOSAL 5 BE, AND IT HEREBY IS,
DISMISSED.
REASONS: THE FIRST AND THIRD SENTENCES REQUIRE THAT COMPLAINTS
AGAINST DEPUTIES BE BOTH SWORN TO BY THE COMPLAINANT AND AVAILABLE FOR
INSPECTION BY THE DEPUTY BEING COMPLAINED ABOUT. THE AGENCY STATES THAT
BOTH THESE REQUIREMENTS ARE OBSERVED WHENEVER A COMPLAINT IS USED AS A
BASIS FOR DISCIPLINARY ACTION AGAINST A DEPUTY. HOWEVER, THE AGENCY
ASSERTS THAT BEING OBLIGATED TO MEET THESE REQUIREMENTS "BEFORE
UNDERTAKING AN INVESTIGATION OF A COMPLAINT," AS THE PROPOSAL WOULD
REQUIRE, WOULD INTERFERE WITH ITS DETERMINATIONS REGARDING ITS INTERNAL
SECURITY PRACTICES UNDER SECTION 7106(A)(1) OF THE STATUTE.
IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL
IMMIGRATION AND NATURALIZATION SERVICE COUNCIL AND U.S. DEPARTMENT OF
JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, 8 FLRA NO. 75(1982),
APPEAL DOCKETED SUB NOM. DOJ, INS V. FLRA, NO. 82-1622(D.C. CIR. JUNE
3, 1982), AT 15-16 OF THE DECISION, THE AUTHORITY HELD THAT THE AGENCY'S
DECISION TO REQUIRE SWORN STATEMENTS WHEN CONDUCTING DETERMINATION AS TO
INTERNAL SECURITY PRACTICES WHICH WAS OUTSIDE THE OBLIGATION TO BARGAIN
UNDER SECTION 7106(A)(1). IN THE INSTANT CASE, THE PROPOSAL'S FIRST AND
THIRD SENTENCES SIMILARLY WOULD INFRINGE ON THE AGENCY'S DETERMINATIONS
CONCERNING THE RULES APPLICABLE TO INTERNAL INVESTIGATIONS RELATING TO
THE INTEGRITY OF AGENCY OPERATIONS. ACCORDINGLY, FOR THE REASONS STATED
IN THE CITED DECISION, THE FIRST AND THIRD SENTENCES, HEREIN, ARE
INCONSISTENT WITH THE RIGHT RESERVED TO THE AGENCY UNDER SECTION
7106(A)(1) OF THE STATUTE AND ARE OUTSIDE THE DUTY TO BARGAIN.
ALSO, WITH RESPECT TO THE SECOND SENTENCE OF THE PROPOSAL, INHERENT
IN THE AUTHORITY RESERVED TO THE AGENCY TO DETERMINE ITS INTERNAL
SECURITY PRACTICES IS THE ABILITY OF THE AGENCY TO DECIDE TO PURSUE THE
PROSECUTION OF AN INDIVIDUAL WHO KNOWINGLY FILES A FALSE COMPLAINT OR TO
DECIDE NOT TO PURSUE THE PROSECUTION IN RETURN, FOR EXAMPLE, FOR THE
COMPLAINANT'S COOPERATION ON OTHER INTERNAL SECURITY MATTERS.
ACCORDINGLY, THE SECOND SENTENCE OF THE PROPOSAL, WHICH WOULD REQUIRE
THE AGENCY TO PURSUE THE PROSECUTION OF AN INDIVIDUAL WHO KNOWINGLY
FILES A FALSE COMPLAINT, IS ALSO INCONSISTENT WITH SECTION 7106(A)(1) OF
THE STATUTE. /7/ ACCORDINGLY, THE ENTIRE PROPOSAL IS INCONSISTENT WITH
THE AGENCY'S RIGHT TO DETERMINE ITS INTERNAL SECURITY PRACTICES UNDER
SECTION 7106(A)(1) OF THE STATUTE.
UNION PROPOSAL 6
HAVE THE GUN RANGE OPEN FOR THE DEPUTIES TO PRACTICE IN THE EVENINGS
AND ON SATURDAYS, AND
FOR QUALIFYING.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER, AS ALLEGED BY THE AGENCY, UNION PROPOSAL 6
WOULD REQUIRE THE AGENCY TO NEGOTIATE OVER MATTERS CONCERNING THE
AGENCY'S CHOICE OF THE TECHNOLOGY, METHODS, OR MEANS OF PERFORMING WORK,
WHICH IS NEGOTIABLE ONLY AT THE ELECTION OF THE AGENCY UNDER SECTION
7106(B)(1) OF THE STATUTE.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL 6 DOES NOT REQUIRE NEGOTIATIONS
OVER MATTERS BARGAINABLE ONLY AT THE ELECTION OF THE AGENCY UNDER
SECTION 7106(B)(1) OF THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION
2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)),
IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED
TO BY THE PARTIES) BARGAIN CONCERNING UNION PROPOSAL 6. /8/
REASONS: BOTH PARTIES TREAT THE PROPOSAL AS REQUIRING THAT THE GUN
RANGE THAT IS TO BE OPEN IN THE EVENINGS AND ON SATURDAYS BE THE
AGENCY'S OWN GUN RANGE. THE AGENCY INDICATES ITS GUN RANGE WAS CLOSED
FOR SAFETY VIOLATIONS, THAT IT CURRENTLY HAS NO FUNDS FOR ITS RENOVATION
AND THAT, AS A CONSEQUENCE, IT USES GUN RANGES BELONGING TO RENOVATION
AND THAT, AS A CONSEQUENCE, IT USES GUN RANGES BELONGING TO OTHER
AGENCIES. THUS, THE AGENCY CONTENDS, THE PROPOSAL'S IMPLICIT
REQUIREMENT THAT THE AGENCY REPAIR ITS OWN GUN RANGE CONCERNS HOW THE
AGENCY CHOOSES TO USE CERTAIN WORKSPACE, A MATTER INTERFERING WITH THE
AGENCY'S AUTHORITY TO DETERMINE THE TECHNOLOGY OF PERFORMING ITS WORK
UNDER SECTION 7106(B)(1) OF THE STATUTE. THE UNION CLAIMS, IN ESSENCE,
THAT THE PROPOSAL CONCERNS A HEALTH AND SAFETY MATTER, I.E., AN
APPROPRIATE ARRANGEMENT FOR EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S
EXERCISE OF ITS RIGHT TO REQUIRE THAT EMPLOYEES CARRY FIREARMS AS A
"MEANS" OF PERFORMING THE AGENCY'S WORK. /9/
AS TO THE AGENCY'S ARGUMENT THAT THE PROPOSAL INTERFERES WITH ITS
AUTHORITY TO DETERMINE THE TECHNOLOGY OF PERFORMING ITS WORK, THE AGENCY
HAS MADE NO SHOWING THAT REQUIRING IT TO USE A PORTION OF ITS WORKSPACE
AS A GUN RANGE INTERFERES WITH A TECHNICAL METHOD USED BY THE AGENCY FOR
ACCOMPLISHING OR FURTHERING ITS WORK. /10/ MOREOVER, INSOFAR AS THE
AGENCY'S USE OF GUN RANGES OF OTHER AGENCIES INDICATES THE USE OF A GUN
RANGE, ITSELF, MIGHT REPRESENT THE EXERCISE OF THE AGENCY'S CHOICE OF A
TECHNOLOGY OF PERFORMING WORK, THERE IS A MATERIAL DIFFERENCE BETWEEN
REQUIRING THE AGENCY TO PROVIDE A GUN RANGE FOR THE NON-WORK TIME USE OF
EMPLOYEES AND REQUIRING THE AGENCY TO USE A GUN RANGE AS A PART OF ITS
WORK. THE FORMER, WHICH IS EMBODIED IN THE INSTANT PROPOSAL, WOULD NOT
AFFECT HOW THE AGENCY CHOOSES TO ACCOMPLISH OR FURTHER THE PERFORMANCE
OF ITS WORK. /11/
AS TO THE AGENCY'S ARGUMENT THAT THE PROPOSAL WOULD REQUIRE THE
EXPENDITURE OF FUNDS IT CURRENTLY DOES NOT HAVE, SUCH AN ARGUMENT DOES
NOT RENDER THE PROPOSAL NONNEGOTIABLE. /12/ INSTEAD, THIS FACTOR IS
SOMETHING FOR THE AGENCY TO TAKE INTO ACCOUNT IN DETERMINING ITS
BARGAINING POSITION. /13/
ACCORDINGLY, INSTEAD OF BEING OUTSIDE THE DUTY TO BARGAIN AS THE
AGENCY ALLEGES, THE PROPOSAL REPRESENTS AN APPROPRIATE ARRANGEMENT,
UNDER SECTION 7106(B)(3) OF THE STATUTE, FOR EMPLOYEES ADVERSELY
AFFECTED BY MANAGEMENT'S DETERMINATION THAT, AS A MEANS OF PERFORMING
THE AGENCY'S WORK, EMPLOYEES WILL CARRY FIREARMS. /14/
UNION PROPOSAL 7
THERE SHOULD NOT BE ANY UNION OFFICIAL GOING ON DETAILS, SPECIAL
ASSIGNMENTS, PC (PRISON
CENTRAL) TRIPS, OR ANY OTHER OUT OF THE DISTRICT ACTIVITIES THAT
WOULD TAKE UNION OFFICIALS
OUT OF TOUCH WITH MANAGEMENT. UNION OFFICIALS MUST BE FREE TO
CONTACT MANAGEMENT ANY HOUR OF
THE DAY OR NIGHT. THIS SHOULD REMAIN IN FORCE UNLESS THE UNION
OFFICIALS WANT TO GO ON
DETAILS, SPECIAL ASSIGNMENTS, ETC.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL 7 IS INCONSISTENT WITH THE
AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE
STATUTE.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL 7 IS INCONSISTENT WITH THE
AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE STATUTE
AND THEREFORE THE DUTY TO BARGAIN DOES NOT EXTEND TO THIS MATTER.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS(5 CFR 2424.10(1981)), IT IS ORDERED THAT THE PORTION OF THE
UNION'S PETITION FOR REVIEW RELATING TO UNION PROPOSAL 7 BE, AND IT
HEREBY IS, DISMISSED.
REASONS: THE PLAIN LANGUAGE OF UNION PROPOSAL 7 WOULD DIRECTLY
INTERFERE WITH THE RIGHT OF THE AGENCY TO ASSIGN CERTAIN WORK TO
EMPLOYEES WHO ARE ALSO UNION OFFICIALS, UNLESS THE OFFICIALS CONSENTED.
THIS, IN EFFECT, WOULD CREATE AN EXCEPTION TO THE MANAGEMENT RIGHTS
PROVISION BASED ON THE EMPLOYEES' STATUS AS UNION OFFICIALS. THERE IS
NO BASIS FOR SUCH AN EXCEPTION IN THE STATUTE OR ITS HISTORY. THE
AGENCY HAS THE RIGHT UNDER SECTION 7106(A)(2)(B) TO ASSIGN WORK TO ALL
EMPLOYEES, REGARDLESS OF WHETHER THEY ARE UNION OFFICIALS AND REGARDLESS
OF WHETHER THEY CONSENT. /15/ THEREFORE, UNION PROPOSAL 7 VIOLATES
SECTION 7106(A)(2)(B) OF THE STATUTE. HOWEVER, IT IS CLEAR IN THIS
CONNECTION THAT THE AGENCY MAY NOT ASSIGN WORK BASED ON UNION ANIMUS.
/16/ MOREOVER, ADDITIONAL PROCEDURES AND PRACTICES COULD BE NEGOTIATED
BETWEEN THE PARTIES WHICH WOULD NOT NEGATE THE AGENCY'S RIGHT TO ASSIGN
WORK AND AT THE SAME TIME WOULD ENABLE THE UNION TO IMPLEMENT ITS
STATUTORY RIGHTS AND DUTIES WITH RESPECT TO THE REPRESENTATION OF
EMPLOYEES. /17/
UNION PROPOSAL 8
MANAGEMENT SHOULD KEEP EVERYTHING AS IT IS UNTIL THE COLLECTIVE
BARGAINING AND NEGOTIATIONS
ARE COMPLETED, FINALIZED AND SIGNED, UNLESS THERE IS A DYING
EMERGENCY AND AGREED TO WITH THE
LOCAL AS REQUIRED BY LABOR LAWS.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL 8 VIOLATES THE AGENCY'S RIGHTS
UNDER SECTION 7106(A) OF THE STATUTE.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL 8 IS NOT INCONSISTENT WITH THE
AGENCY'S RIGHTS UNDER SECTION 7106(A) OF THE STATUTE. RATHER, IT WOULD
ESTABLISH A NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2) OF THE STATUTE
WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE IN EXERCISING
THEIR MANAGEMENT RIGHTS. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF
THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS
ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY
THE PARTIES) BARGAIN CONCERNING UNION PROPOSAL 8. /18/
REASONS: IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND
AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2
FLRA 603, 623(1980), ENFORCED SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL
LABOR RELATIONS AUTHORITY, 659 F.2D 1140(D.C. CIR. 1981), CERT. DENIED
SUB NOM. AFGE V. FLRA, U.S. , 102 S.CT. 1443(1982), THE AUTHORITY
DETERMINED THAT A UNION PROPOSAL WHICH WOULD REQUIRE THE AGENCY TO HOLD
IN ABEYANCE PROPOSED MID-TERM CHANGES IN CONDITIONS OF EMPLOYMENT
PENDING COMPLETION OF ANY IMPASSES PROCEDURES WHICH MIGHT ARISE, EXCEPT
IN CIRCUMSTANCES INVOLVING AN "OVERRIDING EXIGENCY" OR "UNREASONABLE
DELAY," WAS A NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2) OF THE
STATUTE. IN THE INSTANT CASE, THE DISPUTED PROPOSAL SIMILARLY WOULD
REQUIRE THE AGENCY TO HOLD IN ABEYANCE ANY CHANGES IN CONDITIONS OF
EMPLOYMENT UNTIL THE COLLECTIVE BARGAINING PROCESS IS COMPLETED, EXCEPT
IN CIRCUMSTANCES INVOLVING A "DYING EMERGENCY." IN THIS REGARD, THE
PROPOSAL'S USE OF THE LANGUAGE "DYING EMERGENCY," INSTEAD OF "OVERRIDING
EXIGENCY" AS A WRIGHT-PATTERSON, IS NOT A MATERIAL DISTINCTION IN THAT
THE PROPOSAL WOULD NOT PREVENT THE AGENCY FROM ACTING AT ALL. /19/
MOREOVER, THE ADDITIONAL LANGUAGE IN THE PROPOSAL, "AND AGREED TO WITH
THE LOCAL AS REQUIRED BY LABOR LAWS," EXPRESSLY REQUIRES THE AGENCY TO
ADHERE TO ANY APPLICABLE LABOR LAWS. THEREFORE, BASED ON THE REASONS
SET FORTH IN GREATER DETAIL IN WRIGHT-PATTERSON, UNION PROPOSAL 8 MUST
BE HELD TO BE A NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2) OF THE
STATUTE WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE IN
EXERCISING THEIR MANAGEMENT RIGHTS.
UNION PROPOSAL 9
THERE SHOULD BE NO LESS THAN 88 HOURS ON ALL SPECIAL DETAILS.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL 9 IS INCONSISTENT WITH THE
GENCY'S RIGHT TO ASSIGN EMPLOYEES AND WORK UNDER SECTION 7106(A)(2)(A)
AND (B) OF THE STATUTE.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL 9 IS NOT INCONSISTENT WITH THE
AGENCY'S RIGHT TO ASSIGN EMPLOYEES AND WORK UNDER SECTION 7106(A)(2)(A)
AND (B) OF THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED
THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE
PARTIES) BARGAIN CONCERNING UNION PROPOSAL 9. /20/
REASONS: BASED ON THE RECORD IN THE CASE, IT APPEARS THE AGENCY HAS
ESTABLISHED A ROTATION SYSTEM FOR THE ASSIGNMENT OF EMPLOYEES TO
"SPECIAL DETAILS." UNDER THE SYSTEM, WHEN AN EMPLOYEE REACHES THE TOP OF
THE ROTATION LIST, THEREBY BECOMING THE EMPLOYEE TO BE CHOSEN FOR THE
NEXT SPECIAL DETAIL, THE EMPLOYEE REMAINS AT THE TOP OF THE ROTATION
LIST UNTIL HE OR SHE SPENDS A MINIMUM OF 40 HOURS IN SPECIAL DETAIL
STATUS, I.E., IS ASSIGNED AS MANY SPECIAL DETAILS AS MAY BE NECESSARY TO
GIVE THE EMPLOYEE A MINIMUM OF 40 HOURS IN SPECIAL DETAIL STATUS. AS
EXPLAINED BY THE UNION, UNION PROPOSAL 9 MERELY WOULD EXPAND THIS
MINIMUM TO 88 HOURS. ADOPTING THIS INTERPRETATION FOR PURPOSES OF THIS
DECISION, WHICH IS CONSISTENT WITH THE LANGUAGE OF THE PROPOSAL, THE
AUTHORITY CONCLUDES THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN. IT
WOULD NOT INTERFERE WITH THE AGENCY'S RIGHT TO DETERMINE THE DURATION OF
PARTICULAR ASSIGNMENTS OF EMPLOYEES OR OF WORK UNDER SECTION
7106(A)(2)(A) AND (B) OF THE STATUTE, AS THE AGENCY CLAIMS; /21/
NEITHER WOULD IT BE DETERMINATIVE OF THE NUMBERS, TYPES OR GRADES OF
EMPLOYEES OR POSITIONS ASSIGNED AS FURTHER CLAIMED BY THE AGENCY. /22/
UNION PROPOSAL 10
IF A DEPUTY HAS PERMANENT PERMISSION TO TAKE A GOVERNMENT VEHICLE
BACK AND FORTH TO HIS
HOME, A CAR POOL CAN BE FORMED WITH OTHER DEPUTIES TO GET BACK AND
FORTH TO WORK WHO LIVE IN
THE GENERAL AREAS AND DIRECTIONS.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER, AS ALLEGED BY THE AGENCY, UNION PROPOSAL 10
IS INCONSISTENT WITH 31 U.S.C. SEC. 638A(C)(2) /23/ SO AS TO BE
NONNEGOTIABLE UNDER SECTION 7117(A)(1) OF THE STATUTE, /24/ OR IS
INCONSISTENT WITH SECTION 7106(B)(1) OF THE STATUTE.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL 10 IS NOT INCONSISTENT WITH 31
U.S.C. 638A(C)(2) OR SECTION 7106(B)(1). ACCORDINGLY, PURSUANT TO
SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
2424.10(1981)), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS
OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING UNION PROPOSAL
10. /25/
REASONS: THE AGENCY ARGUES THE PROPOSAL IS INCONSISTENT WITH ITS
RIGHT TO DETERMINE THE TECHNOLOGY OF PERFORMING WORK, UNDER SECTION
7106(B)(1) OF THE STATUTE, BY SUBJECTING TO THE DUTY TO BARGAIN THE
DECISION AS TO WHETHER PARTICULAR EMPLOYEES WILL OR WILL NOT BE EQUIPPED
WITH VEHICLES TO CARRY OUT PARTICULAR PORTIONS OF THEIR DUTIES.
ADDITIONALLY, THE AGENCY CLAIMS THE PROPOSAL IS INCONSISTENT WITH
SECTION 638A(C)(2) BECAUSE, EVEN IF A VEHICLE WERE PROPERLY AUTHORIZED
TO BE TAKEN HOME BY ONE EMPLOYEE BECAUSE HE IS ENGAGED IN "FIELD WORK"
WITHIN THE MEANING OF THE STATUTE, THE USE OF THE VEHICLE TO TRANSPORT
OTHER EMPLOYEES WHO ARE NOT ENGAGED IN SUCH FIELD WORK WOULD PREVENT THE
VEHICLE FROM BEING USED "EXCLUSIVELY FOR OFFICIAL PURPOSES" AS REQUIRED
BY THE STATUTE.
AS TO THE AGENCY'S ARGUMENT THAT THE PROPOSAL REQUIRES THE AGENCY TO
BARGAIN OVER THE DECISION AS TO WHETHER PARTICULAR EMPLOYEES WILL OR
WILL NOT BE EQUIPPED WITH VEHICLES, IT IS BASED UPON A MISUNDERSTANDING
OF THE PROPOSAL. THE PROPOSAL ONLY WOULD APPLY WITH REGARD TO A DEPUTY
WHO HAD BEEN GRANTED "PERMANENT PERMISSION" TO TAKE A VEHICLE HOME:
WHETHER, IF EVER, TO GRANT SUCH "PERMANENT PERMISSION" OR TO GRANT
PERMISSION ONLY ON A CASE-BY-CASE BASIS WOULD BE WITHIN THE CONTROL OF
THE AGENCY.
AS TO THE AGENCY'S CLAIM THAT THE PROPOSAL IS INCONSISTENT WITH
SECTION 638A(C)(2) BECAUSE IT WOULD PREVENT THE VEHICLE FROM BEING USED
"EXCLUSIVELY FOR OFFICIAL PURPOSES," THE CLAIM IS BASED UPON AN
INTERPRETATION OF SECTION 638A(C)(2) THAT IS MORE RESTRICTIVE THAN
REQUIRED. THE PRIMARY PURPOSE OF SECTION 638A(C)(2), AS APPLIED BY THE
COMPTROLLER GENERAL, IS TO PREVENT THE USE OF GOVERNMENT VEHICLES FOR
THE PERSONAL CONVENIENCE OF EMPLOYEES. THUS, IF A VEHICLE IS USED ONLY
FOR OFFICIAL PURPOSES AS DETERMINED BY THE AGENCY, TRANSPORTATION OF ANY
OTHER EMPLOYEES WHICH WAS ONLY INCIDENT TO SUCH USE WOULD NOT BE
INCONSISTENT WITH SECTION 638A(C)(2). /26/ THAT IS, SECTION 638A(C)(2)
WOULD NOT BE VIOLATED WHERE TRANSPORTATION OF EMPLOYEES IN A GOVERNMENT
VEHICLE BETWEEN THEIR HOMES AND PLACE OF EMPLOYMENT IS SUCH THAT THEY
MERELY ACCOMPANY ANOTHER EMPLOYEE ON AN OTHERWISE ALREADY AUTHORIZED
TRIP FOR THE TRANSACTION OF OFFICIAL BUSINESS, AND THE AGENCY DETERMINES
THAT THE TRIP IS IN THE GOVERNMENT'S INTEREST.
UNION PROPOSAL 11
WHEN DEPUTIES GO ON SPECIAL DETAILS, PC (PRISON CENTRAL) TRIPS, ETC.,
A 48 HOUR NOTICE, AT
LEAST, SHOULD BE GIVEN.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL 11 IS INCONSISTENT WITH THE
AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE
STATUTE.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL 11 IS NOT INCONSISTENT WITH THE
AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) BUT, INSTEAD,
ESTABLISHES A NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2) OF THE
STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE
AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES)
BARGAIN CONCERNING UNION PROPOSAL 11. /27/
REASONS: UNION PROPOSAL 11 WOULD NOT PREVENT THE AGENCY FROM
ASSIGNING EMPLOYEES TO ANY SPECIAL DETAIL; IT WOULD MERELY REQUIRE THAT
THE AGENCY GIVE 48 HOUR NOTICE OF SUCH AN ASSIGNMENT. THE AGENCY HAS
MADE NO CLAIM THAT IT WOULD HAVE INSUFFICIENT ADVANCE KNOWLEDGE OF
SPECIAL DETAILS SO THAT MEETING THE PROPOSAL'S 48 HOUR NOTICE
REQUIREMENT WOULD IN ANY WAY PREVENT IT FROM REQUIRING THAT THESE
DETAILS BE ACCOMPLISHED. IN AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE SERVICE,
DIX-MCGUIRE EXCHANGE, FORT DIX, NEW JERSEY, 2 FLRA 152, 155(1979),
ENFORCED SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS
AUTHORITY, 659 F.2D 1140(D.C. CIR. 1981), CERT. DENIED SUB NOM. AFGE V.
FLRA, U.S. , 102 S.CT. 1443(1982), THE AUTHORITY STATED THAT SECTION
7106(B)(2) OF THE STATUTE "IS INTENDED TO AUTHORIZE AN EXCLUSIVE
REPRESENTATIVE TO NEGOTIATE FULLY ON PROCEDURES, EXCEPT TO THE EXTENT
THAT SUCH NEGOTIATIONS WOULD PREVENT AGENCY MANAGEMENT FROM ACTING AT
ALL." SINCE IT HAS NOT BEEN SHOWN THAT UNION PROPOSAL 11 WOULD PREVENT
THE AGENCY FROM ACTING AT ALL WITH RESPECT TO ASSIGNING WORK TO
EMPLOYEES, IT IS A PROCEDURE NEGOTIABLE UNDER SECTION 7106(B)(2) OF THE
STATUTE. /28/
ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ SECTION 7106(B)(1) OF THE STATUTE PROVIDES:
SEC. 7106. MANAGEMENT RIGHTS
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM NEGOTIATING --
(1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
OF EMPLOYEES OR
POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
OR TOUR OF DUTY, OR ON THE
TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK(.)
/2/ SECTION 7106 OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY
AGENCY --
(2) IN ACCORDANCE WITH APPLICABLE LAWS --
(A) TO . . . DIRECT . . . EMPLOYEES IN THE AGENCY . . . ;
(B) TO ASSIGN WORK(.)
/3/ SECTION 7106(B)(2) PROVIDES:
SEC. 7106. MANAGEMENT RIGHTS
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM NEGOTIATING --
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION (.)
/4/ IN DECIDING THAT UNION PROPOSAL 4 IS WITHIN THE DUTY TO BARGAIN,
THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
/5/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, ALF-CIO,
INTERNATIONAL COUNCIL OF U.S. MARSHALS SERVICE LOCALS AND DEPARTMENT OF
JUSTICE, U.S. MARSHALS SERVICE, 4 FLRA NO. 52 (1980); NATIONAL LABOR
RELATIONS BOARD UNION AND NATIONAL LABOR RELATIONS BOARD, WASHINGTON,
D.C., 3 FLRA 507(1980).
/6/ SECTION 7106(A)(1) OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY
AGENCY --
(1) TO DETERMINE THE . . . INTERNAL SECURITY PRACTICES OF THE
AGENCY(.)
/7/ OF COURSE, INSOFAR AS THE PROPOSAL CONCERNS THE PROSECUTION OF A
"CITIZEN" WHO IS NOT A MEMBER OF THE BARGAINING UNIT, IT DOES NOT
CONCERN THE CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES. HENCE, IN ANY
EVENT, THE PROPOSAL WOULD BE OUTSIDE THE DUTY TO BARGAIN TO THIS EXTENT.
/8/ IN DECIDING THAT UNION PROPOSAL 6 IS WITHIN THE DUTY TO BARGAIN,
THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
/9/ IN THIS REGARD, SECTION 7106(B)(3) OF THE STATUTE PROVIDES:
SEC. 7106. MANAGEMENT RIGHTS
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM NEGOTIATING --
(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY
AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
/10/ SEE AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL
EMPLOYEES, AFL-CIO, LOCAL 2477 AND LIBRARY OF CONGRESS, WASHINGTON, D.C.
(AND OTHER CASE CONSOLIDATED THEREWITH), 7 FLRA NO. 89(1982).
/11/ ID. (UNION PROPOSAL XVI).
/12/ SEE AMERICAN FEDERATION OF GOVER4MENT EMPLOYEES, AFL-CIO, LOCAL
32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 6 FLRA NO.
76(1981).
/13/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
2875 AND DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, NATIONAL MARINE FISHERIES SERVICE, SOUTHEAST FISHERIES
CENTER, MIAMI LABORATORY, FLORIDA, 5 FLRA NO. 55(1981)(UNION PROPOSAL
4).
/14/ CF. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
INTERNATIONAL COUNCIL OF U.S. MARSHALS SERVICE LOCALS AND DEPARTMENT OF
JUSTICE, U.S. MARSHALS SERVICE, 4 FLRA NO. 52(1980)(UNION PROPOSAL
I)(WHEREIN THE AUTHORITY FOUND THAT THE AGENCY HAD EXERCISED ITS RIGHT
UNDER SECTION 7106(B)(1) TO DETERMINE ONE OF ITS "MEANS OF PERFORMING
WORK" WHEN IT REQUIRED EMPLOYEES TO CARRY FIREARMS).
/15/ ASSOCIATION OF CIVILIAN TECHNICIANS AND STATE OF GEORGIA
NATIONAL GUARD, 2 FLRA 580(1980).
/16/ SEE 5 U.S.C. SEC. 7116(A)(1).
/17/ SEE NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL REVENUE
SERVICE, 7 FLRA NO. 42(1981)(UNION PROPOSAL 1).
/18/ IN DECIDING THAT UNION PROPOSAL 8 IS WITHIN THE DUTY TO BARGAIN,
THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
/19/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
1999 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT
DIX, NEW JERSEY, 2 FLRA 152(1979), ENFORCED SUB NOM. DEPARTMENT OF
DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, 659 F.2D 1140(D.C. CIR.
1981), CERT. DENIED SUB NOM. AFGE V. FLRA, U.S. , 102 S. CT.
1443(1982).
/20/ IN DECIDING THAT UNION PROPOSAL 9 IS WITHIN THE DUTY TO BARGAIN,
THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
/21/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR
FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 5 FLRA
NO. 15(1981).
/22/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
2875 AND DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, NATIONAL MARINE FISHERIES SERVICE SOUTHEAST FISHERIES
CENTER, MIAMI LABORATORY, FLORIDA, 5 FLRA NO. 55(1981), AT 4-5 OF THE
DECISION; BUT SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
3669, AFL-CIO AND VETERANS ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS,
MINNESOTA, 2 FLRA 640(1980)(WHEREIN A PROPOSAL ALLOWING NURSES EVERY
OTHER WEEKEND OFF WAS FOUND VIOLATIVE OF SECTION 7106(B)(1) BECAUSE THE
AGENCY DEMONSTRATED THE PROPOSAL WOULD NECESSITATE THE HIRING OF
ADDITIONAL NURSES).
/23/ 31 U.S.C. SEC. 638A(C)(2) PROVIDES, IN PERTINENT PART:
UNLESS OTHERWISE SPECIFICALLY PROVIDED, NO APPROPRIATION AVAILABLE
FOR ANY DEPARTMENT SHALL BE EXPENDED --
(2) FOR THE MAINTENANCE, OPERATION, AND REPAIR OF ANY
GOVERNMENT-OWNED PASSENGER MOTOR
VEHICLE OR AIRCRAFT NOT USED EXCLUSIVELY FOR OFFICIAL PURPOSES; AND
"OFFICIAL PURPOSES" SHALL
NOT INCLUDE THE TRANSPORTATION OF OFFICERS AND EMPLOYEES BETWEEN
THEIR DOMICILES AND PLACES OF
EMPLOYMENT, EXCEPT IN CASES OF MEDICAL OFFICERS ON OUT-PATIENT
MEDICAL SERVICE AND EXCEPT IN
CASES OF OFFICERS AND EMPLOYEES ENGAGED IN FIELD WORK THE CHARACTER
OF WHOSE DUTIES MAKES SUCH
TRANSPORTATION NECESSARY AND THEN ONLY AS TO SUCH LATTER CASES WHEN
THE SAME IS APPROVED BY
THE HEAD OF THE DEPARTMENT CONCERNED . . . .
/24/ SECTION 7117(A)(1) PROVIDES:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
(A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY
FEDERAL LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION, EXTEND TO MATTERS
WHICH ARE THE SUBJECT OF ANY RULE OR REGULATION ONLY IF THE RULE OR
REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
/25/ IN DECIDING THAT UNION PROPOSAL 10 IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
/26/ SEE COMP. GEN. B-190440(JANUARY 20, 1978), ISSUED IN CONNECTION
WITH AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2814, AFL-CIO
AND DEPARTMENT OF TRANSPORTATION, FEDERAL RAILROAD ADMINISTRATION, 6
FLRC 323(1978).
/27/ IN DECIDING THAT UNION PROPOSAL 11 IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
/28/ SEE NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE, 6 FLRA NO. 97(1981) (UNION PROPOSAL
III).
8 FLRA 128; FLRA 3-CU-50; AUGUST 5, 1982.
DEFENSE COMMUNICATIONS
AGENCY, HEADQUARTERS, ARLINGTON, VIRGINIA
AGENCY/PETITIONER
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2, AFL-CIO
LABOR ORGANIZATION
CASE NO. 3-CU-50
8 FLRA NO. 128
SUPPLEMENTAL DECISION
THIS MATTER IS BEFORE THE AUTHORITY ON A MOTION FOR RECONSIDERATION
OF THE AUTHORITY'S DECISION IN DEFENSE COMMUNICATIONS AGENCY,
HEADQUARTERS, ARLINGTON, VIRGINIA, 8 FLRA NO. 128(1982), FILED BY THE
AGENCY/PETITIONER.
ON MAY 26, 1982, THE AUTHORITY ISSUED ITS DECISION AND ORDER
CLARIFYING UNIT IN THE ABOVE CASE. AMONG OTHER FINDINGS, IT FOUND,
UNDER THE HEADING COMPUTER SYSTEMS ANALYST, NATIONAL COMMUNICATIONS
SYSTEM, DCA OPERATIONS CENTER (DCAOC), GS-334-13, THAT "FOUR COMPUTER
SYSTEMS ANALYSTS" ARE NOT SUPERVISORS WITHIN THE MEANING OF THE STATUTE.
THE MOTION FOR RECONSIDERATION POINTS OUT THAT THERE ARE IN FACT
FIFTEEN COMPUTER SPECIALISTS IN DCAOC, WHOM THE AUTHORITY APPEARS TO
ADDRESS, AND ASKS US TO RECONSIDER OUR CONCLUSION WITH REGARD TO THEIR
SUPERVISORY STATUS. THE MOTION ALSO POINTS OUT THAT THERE ARE IN FACT
FOUR COMPUTER SYSTEMS ANALYSTS IN DCAOC, BUT THAT THE AGENCY/PETITIONER
HAD ALLEGED THAT THEY ARE MANAGEMENT OFFICIALS, NOT SUPERVISORS. HENCE,
IT ASKS THE AUTHORITY TO ALSO PASS UPON THIS ALLEGATION. THE AUTHORITY
SHALL HERE DETERMINE THE STATUS OF BOTH THOSE CATEGORIES OF EMPLOYEES.
THUS, THE AUTHORITY GRANTS THE MOTION OF THE AGENCY/PETITIONER AND
ISSUES THIS SUPPLEMENTAL DECISION.
COMPUTER SPECIALIST, NATIONAL COMMUNICATIONS SYSTEM, DCA
OPERATIONS CENTER (DCAOC), GS-334-13
THERE ARE FIFTEEN COMPUTER SPECIALISTS WHO SERVE AS TEAM LEADERS IN
THE ADP AND TECHNICAL SUPPORT ORGANIZATION OF THE NATIONAL
COMMUNICATIONS SYSTEM (NCS). THE AGENCY/PETITIONER ALLEGED THAT THESE
EMPLOYEES SHOULD BE EXCLUDED FROM THE UNIT AS SUPERVISORS WITHIN THE
MEANING OF SECTION 7103(A)(10) OF THE STATUTE. THE SUPERVISORY STATUS
OF THESE TEAM LEADERS WAS INCORRECTLY CONSIDERED BY THE AUTHORITY UNDER
THE HEADING COMPUTER SYSTEMS ANALYST (SEE BELOW).
AFTER CAREFUL REVIEW OF THE TRANSCRIPT IN THIS CASE, THE AUTHORITY
FINDS THAT ITS STATEMENT TO THE EFFECT THAT TEAM LEADERS' ESTIMATES "ARE
APPROVED BY EITHER THE BRANCH CHIEF OR DIVISION DIRECTOR, WHO CHOOSES
WHICH EMPLOYEES WILL CARRY OUT THE WORK," IS A FAIR CHARACTERIZATION OF
THE TESTIMONY. WHILE TEAM LEADERS MAKE SOME DECISIONS IN THIS REGARD,
ESPECIALLY IN CASES OF URGENCY, IT IS NONETHELESS TRUE THAT, AS PART OF
THEIR ESTIMATES AS TO HOW A TEAM ASSIGNMENT WILL BE ACCOMPLISHED,
INCLUDING ASSIGNMENT OF INDIVIDUAL PERSONNEL, FINAL APPROVAL COMES FROM
THE BRANCH CHIEF OR THE DIVISION DIRECTOR. THE AUTHORITY RECONFIRMS THE
PREVIOUS FINDINGS AS TO THESE INDIVIDUALS.
UPON RECONSIDERATION, THE AUTHORITY FINDS THAT THE ABOVE TEAM LEADERS
ARE NOT SUPERVISORS WITHIN THE MEANING OF SECTION 7103(A)(10) OF THE
STATUTE AND THEY MUST THEREFORE BE INCLUDED IN THE BARGAINING UNIT.
COMPUTER SYSTEMS ANALYST, NATIONAL COMMUNICATIONS SYSTEM,
DCA OPERATIONS CENTER (DCAOC), GS-334-13
THERE ARE FOUR COMPUTER SYSTEMS ANALYSTS IN DCAOC, WHO THE
AGENCY/PETITIONER ALLEGES SHOULD BE EXCLUDED FROM THE UNIT AS MANAGEMENT
OFFICIALS, WITHIN THE MEANING OF SECTION 7103(A)(11) OF THE STATUTE AND
WHOSE STATUS THE AUTHORITY HAD NOT PREVIOUSLY PASSED UPON. IN THE LEAD
CASE OF DEPARTMENT OF THE NAVY, AUTOMATIC DATA PROCESSING SELECTION
OFFICE, 7 FLRA NO. 24(1981), THE AUTHORITY INTERPRETED THE STATUTORY
DEFINITION OF "MANAGEMENT OFFICIAL" TO INCLUDE THOSE INDIVIDUALS WHO:
(1) CREATE, ESTABLISH OR PRESCRIBE GENERAL PRINCIPLES, PLANS, OR COURSES
OF ACTION OF AN AGENCY; (2) DECIDE UPON OR SETTLE UPON GENERAL
PRINCIPLES, PLANS OR COURSES OF ACTION FOR AN AGENCY; OR (3) BRING
ABOUT OR OBTAIN A RESULT AS TO THE ADOPTION OF GENERAL PRINCIPLES, PLANS
OR COURSES OF ACTION FOR AN AGENCY. APPLYING THESE CRITERIA TO THE
INSTANT CASE, THE AUTHORITY FINDS THAT THE WORK OF ALL FOUR INCUMBENTS
IS RELATED AND INVOLVES THE DEVELOPING, ANALYZING AND MAINTAINING OF
BOTH HARDWARE AND SOFTWARE SYSTEMS SUCH AS DATA BASE CIRCULAR SYSTEMS,
CONFIGURATION CONTROL, INSTRUCTIONS FOR USE BY CONTRACTS OFFICERS WHO
PURCHASE EQUIPMENT, SITE PREPARATION FOR INCOMING EQUIPMENT AND LONG
RANGE COST ANALYSIS OF SUCH SYSTEMS. WHILE IT IS TRUE THAT WORK
PERFORMED BY THESE ANALYSTS AFFECTS THE WORK OF MANAGEMENT, THE WORK
PRODUCT OF THE INCUMBENTS AND THEIR SUGGESTIONS ARE NO MORE THAN A
STARTING POINT FOR THOSE MAKING FINAL DECISIONS. THE AUTHORITY FINDS
THAT THE INCUMBENTS IN THESE POSITIONS ARE NOT MANAGEMENT OFFICIALS, AS
THEY DO NOT FORMULATE, DETERMINE OR INFLUENCE THE POLICIES OF THE AGENCY
WITHIN THE MEANING OF SECTION 7103(A)(11) OF THE STATUTE, AND THEY MUST
THEREFORE BE INCLUDED IN THE BARGAINING UNIT.
ORDER
ACCORDINGLY, THE MOTION FOR RECONSIDERATION IS HEREBY GRANTED, AND,
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, FOR
WHICH THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2, AFL-CIO,
WAS PREVIOUSLY CERTIFIED AS EXCLUSIVE REPRESENTATIVE, AND WHICH THE
AUTHORITY IN THIS CASE CLARIFIED ON MAY 26, 1982, BE, AND IT HEREBY IS,
FURTHER CLARIFIED TO INCLUDE THE POSITIONS OF COMPUTER SPECIALIST AND
COMPUTER SYSTEMS ANALYST, NATIONAL COMMUNICATIONS SYSTEM, DCA OPERATIONS
CENTER (DCAOC), GS-334-13.
ISSUED, WASHINGTON, D.C., AUGUST 5, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
9 FLRA 139; FLRA O-NG-245; AUGUST 16, 1982.
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1431
UNION
AND
VETERANS ADMINISTRATION
MEDICAL CENTER, EAST
ORANGE, NEW JERSEY
AGENCY
CASE NO. O-NG-245
DECISION AND ORDER ON NEGOTIABILITY ISSUE
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND
RAISES THE QUESTION OF THE NEGOTIABILITY OF ONE UNION PROPOSAL. UPON
CAREFUL CONSIDERATION OF THE ENTIRE RECORD, THE AUTHORITY MAKES THE
FOLLOWING DETERMINATIONS.
UNION PROPOSAL
THE UNION WILL HAVE A REPRESENTATIVE ON THE PROFESSIONAL STANDARDS
BOARDS AND THE POSITION
MANAGEMENT COMMITTEE.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS INCONSISTENT WITH
MANAGEMENT'S RIGHTS UNDER SECTION 7106 OF THE STATUTE.
OPINION
CONCLUSION AND ORDER: THE UNION'S PROPOSAL IS INCONSISTENT WITH THE
RIGHTS OF MANAGEMENT UNDER SECTION 7106(A) AND (B) OF THE STATUTE.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5CFR 2424.10(1981)), IT IS ORDERED THAT THE PETITION FOR
REVIEW OF THE PROPOSAL BE, AND IT HEREBY IS, DISMISSED. /1/
REASONS: THE AUTHORITY HAS CONSISTENTLY HELD THAT THE MANAGEMENT
RIGHTS ENUMERATED IN SECTION 7106 INCLUDE MORE THAN MERELY THE RIGHT TO
DECIDE TO TAKE THE FINAL ACTIONS SPECIFIED. SEE E.G., AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS
COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA 604, 613(1980),
ENFORCED SUB NOM. DEPARTMENT OF DEFENSE, V. FLRA 659 F.2D 1140,
1160-61(D.C.CIR. 1981), CERT. DENIED SUB NOM. AFGE V. FLRA, U.S. . . . ,
102 S.CT. 1443(1982); AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 916 AND TINKER AIR FORCE BASE, OKLAHOMA, 7 FLRA NO.
45(1981). FOR EXAMPLE, THE AUTHORITY HAS HELD THAT THE RIGHT OF
MANAGEMENT OFFICIALS UNDER SECTION 7106(A)(2)(B) TO MAKE DETERMINATIONS
WITH RESPECT TO CONTRACTING OUT ENCOMPASSES NOT ONLY THE RIGHT TO ACT IN
THIS REGARD BUT ALSO THE RIGHT TO DISCUSS AND DELIBERATE CONCERNING THE
RELEVANT FACTORS UPON WHICH SUCH A DETERMINATION WILL BE MADE. NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1167 AND DEPARTMENT OF THE AIR
FORCE, HEADQUARTERS, 31ST COMBAT SUPPORT GROUP (TAC), HOMESTEAD AIR
FORCE BASE, FLORIDA, 6 FLRA NO. 105(1981), ENFORCED SUB NOM. NATIONAL
FEDERATION OF FEDERAL EMPLOYEES V. FLRA, . . . F.2D . . . (D.C. CIR.
1982). THUS, WHEN MANAGEMENT ESTABLISHES FORMAL ORGANIZATIONAL
STRUCTURES TO UNDERTAKE SUCH DELIBERATIONS AS AN INTEGRAL PART OF ITS
SUBSTANTIVE DECISION-MAKING PROCESS, A PROPOSAL WHICH WOULD REQUIRE
UNION PARTICIPATION WOULD HAVE THE EFFECT OF DIRECTLY INTERFERING WITH
MANAGEMENT'S STATUTORY RIGHT TO MAKE THE DECISIONS INVOLVED.
BASED ON THE UNCONTROVERTED STATEMENTS OF THE AGENCY IN THE RECORD OF
THIS CASE, /2/ THE POSITION MANAGEMENT COMMITTEE REFERRED TO IN THE
DISPUTED PROPOSAL WAS ESTABLISHED PURSUANT TO AN INTERNAL AGENCY
REGULATION TO ASSIST THE DIRECTOR OF THE MEDICAL CENTER IN THE
IMPLEMENTATION OF THE AGENCY'S POSITION MANAGEMENT PROGRAM. IT IS
COMPOSED ENTIRELY OF MANAGEMENT OFFICIALS. THE COMMITTEE REVIEWS THE
OVERALL DISTRIBUTION OF WORK AT THE MEDICAL CENTER, INCLUDING PROPOSED
CHANGES IN ORGANIZATIONAL STRUCTURE AS THEY RELATE TO WORK DESIGN,
OCCUPATIONAL AND GRADE DISTRIBUTION, AND STAFFING REQUIREMENTS. AS A
RESULT OF ITS REVIEW OF THESE MATTERS, THE COMMITTEE MAY RECOMMEND TO
THE DIRECTOR VARIOUS COURSES OF ACTION THAT COULD BE TAKEN IN REGARD TO
POSITION MANAGEMENT AT THE MEDICAL CENTER. /3/ THUS, THE POSITION
MANAGEMENT COMMITTEE CONSTITUTES AN INTEGRAL PART OF THE MANAGERIAL
DECISION-MAKING PROCESS AS IT RELATES TO MATTERS CONCERNING THE
ORGANIZATION AND STAFFING OF THE MEDICAL CENTER AND THE ASSIGNMENT OF
WORK TO EMPLOYEES, ALL OF WHICH MATTERS INVOLVE THE EXERCISE OF
MANAGEMENT RIGHTS UNDER SECTION 7106 OF THE STATUTE. /4/
BASED FURTHER ON THE AGENCY'S UNCONTROVERTED STATEMENTS, THE
PROFESSIONAL STANDARDS BOARDS REFERRED TO IN THE PROPOSAL WERE
ESTABLISHED BY VETERANS ADMINISTRATION REGULATIONS /5/ PROMULGATED
PURSUANT TO 38 U.S.C. 4106. /6/ SUCH BOARDS CONDUCT REVIEWS AND MAKE
RECOMMENDATIONS TO DESIGNATED MANAGEMENT OFFICIALS CONCERNING ALL
APPLICATIONS FOR PROFESSIONAL EMPLOYMENT AND THE PERFORMANCE OF
PROBATIONARY PROFESSIONAL EMPLOYEES. IN PARTICULAR, THE BOARDS DECIDE
WHETHER TO RETAIN OR REMOVE SUCH PROBATIONARY EMPLOYEES. THIS LATTER
DECISION IS, IN EFFECT, THE FINAL AGENCY ACTION SINCE, UNDER SEC. 4106,
IT IS NOT SUBJECT TO FURTHER REVIEW WITHIN THE AGENCY. SEE GIORDANO V.
ROUDEBUSH, 617 F.2D 511(8TH CIR. 1980). IN ADDITION, PROFESSIONAL
STANDARDS BOARDS REVIEW THE COMPETENCY OF PROFESSIONAL EMPLOYEES WHO
HAVE COMPLETED THE PROBATIONARY PERIOD TO DETERMINE WHETHER TO RECOMMEND
COMMENCEMENT OF DISCIPLINARY PROCEEDINGS. THUS, THE BOARDS CONSTITUTE A
STATUTORILY MANDATED DECISION-MAKING PROCESS WHEREBY MANAGEMENT'S
AUTHORITY UNDER SECTION 7106 OF THE STATUTE TO HIRE AND TO RETAIN OR
REMOVE EMPLOYEES, IS EXERCISED THROUGH PROFESSIONAL PEER REVIEW. /7/
IN SUM, THE POSITION MANAGEMENT COMMITTEE AND THE PROFESSIONAL
STANDARDS BOARDS WERE ESTABLISHED BY AGENCY MANAGEMENT TO REVIEW, MAKE
RECOMMENDATIONS, AND TAKE ACTION WITH RESPECT TO MATTERS INVOLVING THE
EXERCISE OF MANAGEMENT RIGHTS UNDER SECTION 7106 OF THE STATUTE. AS
SUCH, THE COMMITTEE AND THE BOARDS ARE INTEGRAL PARTS OF THE PROCESS BY
WHICH MANAGEMENT DECIDES AND ACTS PURSUANT TO THOSE RIGHTS. THE UNION
PROPOSAL HEREIN WOULD REQUIRE THAT A UNION REPRESENTATIVE PARTICIPATE IN
THE MEETINGS OF THE POSITION MANAGEMENT COMMITTEE AND THE PROFESSIONAL
STANDARDS BOARDS. BY SO PROVIDING, THE PROPOSAL, LIKE THE PROPOSAL AT
ISSUE IN HOMESTEAD AIR FORCE BASE, WOULD ALLOW THE UNION TO INTERJECT
ITSELF INTO THAT DECISION-MAKING PROCESS AND THEREBY WOULD PREVENT
MANAGEMENT OFFICIALS FROM ENGAGING IN FREE AND OPEN DELIBERATIONS AMONG
THEMSELVES. SUCH DELIBERATIONS ARE AN ESSENTIAL PART OF MANAGEMENT'S
RIGHT TO MAKE DECISIONS UNDER SECTION 7106 OF THE STATUTE. THE DISPUTED
PROPOSAL WOULD THEREBY IMPAIR THE FLEXIBILITY WHICH CONGRESS INTENDED
MANAGEMENT OFFICIALS TO HAVE UNDER THE STATUTE. SEE DEPARTMENT OF
DEFENSE V. FLRA, 659 F.2D 1140, 1159-60(D.C. CIR. 1981). /8/ THUS, THE
UNION PROPOSAL AT ISSUE HEREIN, FOR THE REASONS SET FORTH IN THE
HOMESTEAD AIR FORCE BASE DECISION, WOULD DIRECTLY INTERFERE WITH
MANAGEMENT'S RIGHTS UNDER SECTION 7106 OF THE STATUTE AND, THEREFORE, IS
OUTSIDE THE DUTY TO BARGAIN. /9/
ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ IN LIGHT OF THIS CONCLUSION, THE AUTHORITY FINDS IT UNNECESSARY
TO ADDRESS THE OTHER CONTENTIONS OF THE AGENCY CONCERNING THE
NEGOTIABILITY OF THE UNION'S PROPOSAL.
/2/ BECAUSE THE UNION DID NOT FILE A RESPONSE TO THE AGENCY'S
STATEMENT OF POSITION, THE AUTHORITY MAY PROPERLY ACCEPT THE AGENCY'S
UNCONTROVERTED FACTUAL ASSERTIONS. SEE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES V. FLRA, . . . F.2D . . . (D.C. CIR. 1982) AT 10 OF SLIP
OPINION.
/3/ SEE VETERANS ADMINISTRATION CIRCULAR 00-76-40 (SEPT. 30, 1976).
/4/ SECTION 7106 OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE
AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
(1) TO DETERMINE THE MISSION, BUDGET, ORGANIZATION, NUMBER OF
EMPLOYEES, AND INTERNAL
SECURITY PRACTICES OF THE AGENCY; AND
(2) IN ACCORDANCE WITH APPLICABLE LAWS--
. . . .
(B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
CONTRACTING OUT, AND TO
DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
CONDUCTED(.)
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND AND LABOR
ORGANIZATION FROM
NEGOTIATING--
(1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
OF EMPLOYEES OR
POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION, WORK PROJECT,
OR TOUR OF DUTY, OR ON THE
TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK;
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION; OR
(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY
AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
/5/ VETERANS ADMINISTRATION REGULATION MP-5, PART II, CHAPTER 2,
PARA. 5. SEE ALSO SUPPLEMENT, MP-5, PART II, CHAPTER 2, PARA. 2.05.
/6/ 38 U.S.C. 4106 PROVIDES, IN RELEVANT PART, AS FOLLOWS:
SEC. 4106. PERIOD OF APPOINTMENTS; PROMOTIONS
(A) APPOINTMENTS OF PHYSICIANS, DENTISTS, PODIATRISTS, OPTOMETRISTS,
AND NURSES SHALL BE
MADE ONLY AFTER QUALIFICATIONS HAVE BEEN SATISFACTORILY ESTABLISHED
IN ACCORDANCE WITH
REGULATIONS PRESCRIBED BY THE ADMINISTRATOR, WITHOUT REGARD TO
CIVIL-SERVICE REQUIREMENTS.
(B) SUCH APPOINTMENTS AS DESCRIBED IN SUBSECTION (A) OF THIS SECTION
SHALL BE FOR A
PROBATIONARY PERIOD OF TWO YEARS AND THE RECORD OF EACH PERSON
SERVING UNDER SUCH APPOINTMENT
IN THE MEDICAL, DENTAL, AND NURSING SERVICES SHALL BE REVIEWED FROM
TIME TO TIME BY A BOARD,
APPOINTED IN ACCORDANCE WITH REGULATIONS OF THE ADMINISTRATOR, AND IF
SAID BOARD SHALL FIND
HIM NOT FULLY QUALIFIED AND SATISFACTORY HE SHALL BE SEPARATED FROM
THE SERVICE.
/7/ SECTION 7106(A) OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE
AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
. . . .
(2) IN ACCORDANCE WITH APPLICABLE LAWS--
(A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
AGENCY, OR TO SUSPEND,
REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
AGAINST SUCH EMPLOYEES(.)
/8/ IN THIS REGARD, SEE THE HOUSE COMMITTEE REPORT CONCERNING THE
MANAGEMENT RIGHTS PROVISION, WHICH STATED THAT SECTION 7106 WAS INTENDED
IN PART "TO PRESERVE THE ESSENTIAL PREROGATIVES AND FLEXIBILITY FEDERAL
MANAGERS MUST HAVE." H.R. REP. NO. 95-1403, 95TH CONG., 2ND SESS.
43-44(1978). SEE ALSO THE STATEMENT OF CONGRESSMAN UDALL CONCERNING HIS
SUBSTITUTE AMENDMENT FOR THE HOUSE COMMITTEE BILL, WHEREIN HE
CHARACTERIZED THE SUBSTITUTE AS "BASICALLY A BILL TO GIVE MANAGEMENT THE
POWER TO MANAGE AND THE FLEXIBILITY THAT IT NEEDS." 124 CONG.REC.H9633
(DAILY ED. SEPT. 13, 1978).
/9/ COMPARE NATIONAL TREASURY EMPLOYEES UNION AND U.S. CUSTOMS
SERVICE, REGION VIII, SAN FRANCISCO, CALIFORNIA, 2 FLRA 255(1979) AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3804 AND
FEDERAL DEPOSIT INSURANCE CORPORATION, CHICAGO, ILLINOIS, 7 FLRA NO.
34(1981), IN WHICH THE AUTHORITY FOUND PROPOSALS INSURING UNION INPUT TO
THE FINAL AGENCY DECISION, WHILE PRESERVING THE INTEGRITY OF THE PROCESS
WHEREBY MANAGEMENT REACHES THAT DECISION, WITHIN THE DUTY TO BARGAIN.
THE AUTHORITY ALSO NOTES THAT THE PROPOSAL IN THE INSTANT CASE DOES NOT
INVOLVE LABOR-MANAGEMENT COMMITTEES TO DEAL WITH MATTERS WHICH ARE
THEMSELVES WITHIN THE DUTY TO BARGAIN.
9 FLRA 138; FLRA O-NG-323; AUGUST 16, 1982.
NATIONAL TREASURY
EMPLOYEES UNION
UNION
AND
DEPARTMENT OF THE
TREASURY, U.S. CUSTOMS
SERVICE
AGENCY
CASE NO. O-NG-323
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE),
AND RAISES ISSUES CONCERNING THE NEGOTIABILITY OF NINE PROVISIONS (SET
FORTH IN THE APPENDIX) OF A LOCAL AGREEMENT WHICH WERE DISAPPROVED BY
THE AGENCY HEAD PURSUANT TO SECTION 7114(C) OF THE STATUTE. /1/ UPON
CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES'
CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
THE FIRST ISSUE BEFORE THE AUTHORITY CONCERNS THE NEGOTIABILITY OF
THOSE PORTIONS OF ARTICLE 2 SECTION 1A AND B, ARTICLE 32 SECTION 10A AND
ARTICLE 40 SECTION 3 WHICH ESTABLISH THAT WHENEVER PROVISIONS CONTAINED
IN THE NEGOTIATED AGREEMENT CONFLICT WITH GOVERNMENT-WIDE OR AGENCY-WIDE
RULES OR REGULATIONS ISSUED AFTER THE DATE THE AGREEMENT BECAME
EFFECTIVE, THE AGREEMENT PROVISIONS WILL PREVAIL. THE AUTHORITY, IN
AGREEMENT WITH THE UNION, CONCLUDES THAT THESE PROVISIONS ARE CONSISTENT
WITH THE LANGUAGE OF THE STATUTE AND ITS LEGISLATIVE HISTORY. IN THIS
REGARD, SECTION 7116(A) PROVIDES, IN RELEVANT PART, AS FOLLOWS:
SEC. 7116. UNFAIR LABOR PRACTICES
(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY--
. . . .
(7) TO ENFORCE ANY RULE OR REGULATION (OTHER THAN A RULE OR
REGULATION IMPLEMENTING SECTION
2302 OF THIS TITLE) WHICH IS IN CONFLICT WITH ANY APPLICABLE
COLLECTIVE BARGAINING AGREEMENT
IF THE AGREEMENT WAS IN EFFECT BEFORE THE DATE THE RULE OR REGULATION
WAS PRESCRIBED . . . .
THE CONFERENCE COMMITTEE REPORT CONCERNING THIS SECTION STATED AS
FOLLOWS: /2/
THE CONFERENCE REPORT AUTHORIZES, AS IN THE SENATE BILL, THE ISSUANCE
OF GOVERNMENT-WIDE
RULES OR REGULATIONS WHICH MAY RESTRICT THE SCOPE OF COLLECTIVE
BARGAINING WHICH MIGHT
OTHERWISE BE PERMISSIBLE UNDER THE PROVISIONS OF THIS TITLE. AS IN
THE HOUSE, HOWEVER, THE
ACT GENERALLY PROHIBITS SUCH GOVERNMENT-WIDE RULE OR REGULATION FROM
NULLIFYING THE EFFECT OF
AN EXISTING COLLECTIVE BARGAINING AGREEMENT. THE EXCEPTION TO THIS
IS THE ISSUANCE OF RULES
RULES OR REGULATIONS IMPLEMENTING SECTION 2302. RULES
OR REGULATIONS ISSUED UNDER SECTION 2302 MAY HAVE THE EFFECT OF
REQUIRING NEGOTIATION OF A
REVISION OF THE TERMS OF A COLLECTIVE BARGAINING AGREEMENT TO THE
EXTENT THAT THE NEW RULE OR
REGULATION INCREASES THE PROTECTION OF THE RIGHTS OF EMPLOYEES.
CONSEQUENTLY, WHILE THE DUTY TO BARGAIN UNDER SECTION 7117 OF THE
STATUTE /3/ DOES NOT EXTEND TO MATTERS WHICH ARE INCONSISTENT WITH
EXISTING GOVERNMENT-WIDE RULES OR REGULATIONS OR AGENCY-WIDE RULES OR
REGULATIONS FOR WHICH A COMPELLING NEED IS FOUND TO EXIST, ONCE A
COLLECTIVE BARGAINING AGREEMENT BECOMES EFFECTIVE, SUBSEQUENTLY ISSUED
RULES OR REGULATIONS, WITH THE EXCEPTION OF GOVERNMENT-WIDE RULES OR
REGULATIONS ISSUED UNDER 5 U.S.C. 2302 (RELATING TO PROHIBITED PERSONNEL
PRACTICES), CANNOT NULLIFY THE TERMS OF SUCH A COLLECTIVE BARGAINING
AGREEMENT. THUS, THE PROVISIONS HERE IN DISPUTE ARE WITHIN THE DUTY TO
BARGAIN UNDER THE STATUTE.
THE SECOND ISSUE BEFORE THE AUTHORITY CONCERNS THE NEGOTIABILITY OF
ARTICLE 3 SECTIONS 12, 13 AND 14. SECTION 12 CONCERNS THE MANNER IN
WHICH EMPLOYEES ARE TO BE NOTIFIED OF CERTAIN PROCEDURES, PRIVILEGES AND
OBLIGATIONS IN RELATION TO AGENCY CONDUCTED INTERROGATIONS OF EMPLOYEES.
SECTION 12 REQUIRES THE AGENCY TO NOTIFY EMPLOYEES OF WRITTEN
NON-CRIMINAL COMPLAINTS LODGED AGAINST THEM AS SOON AS PRACTICABLE AND
TO FURNISH, UPON THE EMPLOYEE'S REQUEST, COPIES OF THE COMPLAINT AND THE
AGENCY'S RESPONSE THERETO. SECTION 14 PROVIDES THAT EMPLOYEES WILL BE
ALLOWED TO BE PRESENT DURING A NON-CRIMINAL SEARCH OF THE EMPLOYEE'S
POSSESSIONS AT THE WORKSITE IF THE EMPLOYEE IS OTHERWISE PRESENT AT THE
WORKSITE.
CONTRARY TO THE AGENCY'S ASSERTIONS, SECTIONS 12, 13 AND 14 DO NOT
INTERFERE WITH THE AGENCY'S RIGHT UNDER SECTION 7106(A)(1) OF THE
STATUTE TO DETERMINE ITS INTERNAL SECURITY PRACTICES BUT, RATHER,
CONCERN PROCEDURES NEGOTIABLE UNDER SECTION 7106(B)(2) OF THE STATUTE.
/4/ SPECIFICALLY, SECTION 12 DOES NOT INTERFERE WITH THE AGENCY'S
DETERMINATION WHETHER TO INTERVIEW A PARTICULAR EMPLOYEE; NOR DOES IT
CONCERN INVESTIGATIONS OR INTERVIEWS CONDUCTED BY OTHER AGENCIES.
RATHER, ONCE THE AGENCY HAS DETERMINED TO INTERVIEW AN EMPLOYEE, SECTION
12 WOULD REQUIRE THAT SUCH EMPLOYEE BE APPRISED OF CERTAIN RIGHTS, I.E.,
THE RIGHT TO REPRESENTATION AND THE RIGHT TO REMAIN SILENT WHEN BEING
INTERVIEWED REGARDING POSSIBLE CRIMINAL MISCONDUCT; THE RIGHT TO BE
APPRISED THAT THE FAILURE OR REFUSAL TO ANSWER QUESTIONS IN CRIMINAL
INVESTIGATIONS WHERE PROSECUTION HAS BEEN DECLINED OR IN NON-CRIMINAL
INVESTIGATIONS MAY RESULT IN DISCIPLINARY ACTION; AND THE RIGHT TO BE
APPRISED THAT A FALSE ANSWER MAY RESULT IN CRIMINAL PROSECUTION. IN
THIS RESPECT, SECTION 12 MERELY INCORPORATES INTO THE PARTIES'
COLLECTIVE BARGAINING AGREEMENT AN EMPLOYEE'S LEGAL RIGHT TO
REPRESENTATION DURING SUCH INTERVIEWS, SEE SECTION 7114(A)(2)(B) OF THE
STATUTE; INTERNAL REVENUE SERVICE, WASHINGTON, D.C. AND INTERNAL
REVENUE SERVICE, HARTFORD DISTRICT OFFICE AND NATIONAL TREASURY
EMPLOYEES UNION, 4 FLRA NO. 37(1980), ENFORCED SUB NOM. INTERNAL
REVENUE SERVICE, WASHINGTON D.C. V. FEDERAL LABOR RELATIONS AUTHORITY,
671 F.2D 560(D.C. CIR. 1982), AND, IN ADDITION, AN EMPLOYEE'S LEGAL
RIGHT TO REMAIN SILENT WHEN BEING INVESTIGATED FOR POSSIBLE CRIMINAL
MISCONDUCT UNLESS CRIMINAL PROSECUTION IS DECLINED. SEE E.G. KALKINES
V. UNITED STATES, 473 F.2D 1391(CT. CL. 1973).
FURTHER, WHILE THE AGENCY ASSERTS THAT AN ATTORNEY GENERAL'S
MEMORANDUM, DATED JUNE 4, 1980, CONCERNING PROCEDURES TO BE FOLLOWED IN
ADMINISTRATIVE INVESTIGATIONS OF EMPLOYEE MISCONDUCT IS A BAR TO
NEGOTIATION, THE AGENCY MAKES NO SHOWING OF ANY INCONSISTENCY BETWEEN
SECTION 12 AND THAT MEMORANDUM. IN THE ABSENCE OF ANY SHOWING THAT THE
DISPUTED SECTION 12 IS INCONSISTENT WITH THE MEMORANDUM, IT IS
UNNECESSARY TO RULE ON WHETHER THAT MEMORANDUM CONSTITUTES A
GOVERNMENT-WIDE RULE OR REGULATION, AS CLAIMED BY THE AGENCY BECAUSE IN
SUCH CIRCUMSTANCES, THE MEMORANDUM WOULD NOT BAR THE NEGOTIATION OF THIS
PORTION OF THE PROVISION. SEE SECTION 7117(A)(1) OF THE STATUTE; LONG
BEACH NAVAL SHIPYARD, LONG BEACH CALIFORNIA AND INTERNATIONAL FEDERATION
OF PROFESSIONAL AND TECHNICAL ENGINEERS, LOCAL 174, AFL-CIO, 7 FLRA NO.
53(1981) AT 6.
TURNING TO SECTION 13, CONTRARY TO THE AGENCY'S CONTENTION, NOTHING
IN THIS PORTION OF THE PROVISION CONCERNS MANAGEMENT'S DISCRETION AND
JUDGMENT ON HOW TO PERFORM ITS INVESTIGATIVE FUNCTIONS. THAT IS,
SECTION 13 ONLY WOULD REQUIRE THAT AN EMPLOYEE BE NOTIFIED OF A WRITTEN
COMPLAINT RECEIVED BY MANAGEMENT CONCERNING THAT EMPLOYEE AS SOON AS
PRACTICABLE AFTER RECEIPT OF THE COMPLAINT. IN THIS RESPECT THE AGENCY
HAS NOT DEMONSTRATED HOW NOTIFYING AN EMPLOYEE OF A WRITTEN COMPLAINT
INVOLVING THAT EMPLOYEE AS SOON AS PRACTICABLE AFTER RECEIPT OF THE
COMPLAINT WOULD INTERFERE WITH THE AGENCY'S DISCRETION AND JUDGMENT ON
HOW TO MEET ITS INVESTIGATIVE RESPONSIBILITIES. FURTHER, NOTHING IN
SECTION 13 WOULD REQUIRE THE RELEASE OF INFORMATION IN VIOLATION OF THE
PRIVACY ACT (5 U.S.C. 552A(1976)). UNDER THIS PORTION OF THE PROVISION
THE AGENCY WOULD RETAIN THE DISCRETION TO TAKE WHATEVER ACTION IS
NECESSARY TO "SANITIZE" THE COMPLAINT SO AS TO PROTECT "CONFIDENTIAL
SOURCES" OR OTHER EMPLOYEES INVOLVED IN THE COMPLAINT. THUS, THE AGENCY
HAS NOT ESTABLISHED THAT SECTION 13 VIOLATES LAW OR INTERFERES WITH THE
AGENCY'S RIGHT TO DETERMINE ITS INTERNAL SECURITY PRACTICES.
FINALLY, AS TO SECTION 14, THERE IS NOTHING IN THAT PORTION OF THE
PROVISION CONCERNING THE AGENCY'S DETERMINATION WHETHER TO SEARCH AN
EMPLOYEE'S POSSESSIONS AT THE WORKSITE. RATHER, SECTION 14 ONLY WOULD
REQUIRE THAT, IF THE EMPLOYEE IS PRESENT AT THE WORKSITE, THE EMPLOYEE
WILL BE PERMITTED TO BE PRESENT DURING THE SEARCH AND TO BE REPRESENTED
BY THE UNION. IN THIS CONNECTION, THE AGENCY HAS NOT DEMONSTRATED HOW
THE EMPLOYEE'S PRESENCE DURING A SEARCH OF HIS POSSESSIONS WOULD PREVENT
MANAGEMENT FROM PROTECTING ITS PROPERTY FROM LOSS, DESTRUCTION OR
DISCLOSURE. THUS, IT HAS NOT ESTABLISHED THAT SECTION 14 WOULD
INTERFERE WITH THE AGENCY'S RIGHT TO DETERMINE ITS INTERNAL SECURITY
PRACTICES. SEE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 61
AND DEPARTMENT OF THE TREASURY, 7 FLRA NO. 47(1981).
ACCORDINGLY, SECTIONS 12, 13 AND 14 OF ARTICLE 3 ARE NOT INCONSISTENT
WITH LAW OR GOVERNMENT-WIDE REGULATIONS AND DO NOT INTERFERE WITH THE
AGENCY'S RIGHT TO DETERMINE ITS INTERNAL SECURITY PRACTICES BUT ARE
WITHIN THE DUTY TO BARGAIN UNDER SECTION 7106(B)(2) OF THE STATUTE.
THE THIRD ISSUE BEFORE THE AUTHORITY CONCERNS THE NEGOTIABILITY OF
THE LAST SENTENCE OF ARTICLE 10 SECTION 9 WHICH WOULD REQUIRE MANAGEMENT
TO PROVIDE EMPLOYEES WITH THE OPPORTUNITY TO UNDERTAKE THOSE WORK
ASSIGNMENTS WHICH WILL ENABLE MANAGEMENT TO EVALUATE THE EMPLOYEES'
ABILITY TO PERFORM HIGHER GRADED WORK. THE RIGHT "TO ASSIGN WORK"
PURSUANT TO SECTION 7106(A)(2)(B) OF THE STATUTE INCLUDES THE RIGHT TO
DETERMINE THE PARTICULAR DUTIES TO BE ASSIGNED AND THE PARTICULAR
EMPLOYEE TO WHOM OR POSITIONS TO WHICH THE DUTIES WILL BE ASSIGNED.
NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE TREASURY, BUREAU
OF THE PUBLIC DEBT, 3 FLRA 769, 775(1980). IN AGREEMENT WITH THE
AGENCY, THE AUTHORITY FINDS THE DISPUTED SENTENCE WOULD INTERFERE WITH
THIS MANAGEMENT RIGHT. THAT IS, MANAGEMENT WOULD BE OBLIGATED TO ASSIGN
SUCH DUTIES AS WOULD ENABLE MANAGEMENT TO EVALUATE AN EMPLOYEE'S ABILITY
TO PERFORM HIGHER GRADED DUTIES. IN ADDITION, MANAGEMENT'S DECISION TO
ASSIGN PARTICULAR DUTIES TO PARTICULAR EMPLOYEES WOULD BE SUBJECT TO
CHALLENGE ON THE BASIS THAT THE DUTIES ASSIGNED DID NOT ENABLE
MANAGEMENT TO EVALUATE AN EMPLOYEE'S ABILITY TO PERFORM HIGHER GRADED
WORK AND THEREFORE TO THE POSSIBILITY OF AN ARBITRATOR SUBSTITUTING HIS
JUDGMENT FOR THAT OF THE AGENCY WITH RESPECT TO THE ASSIGNMENT OF
DUTIES. THUS, THE LAST SENTENCE OF ARTICLE 10 SECTION 9 DIRECTLY
INTERFERES WITH THE AGENCY'S SECTION 7106(A)(2)(B) RIGHT "TO ASSIGN
WORK" AND IS OUTSIDE THE DUTY TO BARGAIN. SEE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1968 AND DEPARTMENT OF
TRANSPORTATION, SAINT LAWRENCE SEAWAY DEVELOPMENT CORPORATION, MASSENA,
NEW YORK, 5 FLRA NO. 14(1981), APPEAL DOCKETED SUB NOM. AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1968 V. FEDERAL LABOR
RELATIONS AUTHORITY, NO. 81-1274 (D.C. CIR. MAR. 11, 1981).
THE FOURTH ISSUE BEFORE THE AUTHORITY CONCERNS THE NEGOTIABILITY OF
ARTICLE 12 SECTIONS 12A AND B WHICH PROVIDE THAT EMPLOYEES RELEASED FROM
THEIR COMPETITIVE LEVELS BECAUSE OF A REDUCTION-IN-FORCE WILL BE PLACED
IN VACANT POSITIONS (TO BE FILLED WITHIN THREE MONTHS OF THE RIF) FOR
WHICH THEY QUALIFY OR FOR WHICH THEY HAVE THE CAPACITY, ADAPTABILITY OR
SPECIAL SKILLS REQUIRED BY THE POSITION. THE PROVISION HERE IN DISPUTE
BEARS NO MATERIAL DIFFERENCE FROM THE PROPOSAL WHICH WAS HELD
NONNEGOTIABLE IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2782 AND DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS, WASHINGTON,
D.C., 7 FLRA NO. 13(1981), APPEAL DOCKETED SUB NOM. AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, LOCAL 2782 V. FEDERAL LABOR RELATIONS
AUTHORITY, NO. 81-2386 (D.C. CIR. DEC. 29, 1981). IN THAT DECISION THE
AUTHORITY HELD THAT A PROPOSAL REQUIRING EMPLOYEES DEMOTED THROUGH NO
FAULT OF THEIR OWN TO BE SELECTED FOR AVAILABLE VACANCIES FOR WHICH THEY
WERE QUALIFIED VIOLATED THE AGENCY'S RIGHT TO CHOOSE AMONG CANDIDATES
FROM "ANY APPROPRIATE SOURCE" PURSUANT TO SECTION 7106(A)(2)(C)(II) OF
THE STATUTE. THEREFORE, FOR THE REASONS FULLY SET FORTH IN BUREAU OF
THE CENSUS, THE PROVISION HERE IN DISPUTE MUST ALSO BE HELD TO BE
OUTSIDE THE DUTY TO BARGAIN.
THE FIFTH ISSUE BEFORE THE AUTHORITY CONCERNS THE NEGOTIABILITY OF
THE SECOND SENTENCE OF ARTICLE 16 SECTION 8 WHICH PROVIDES THAT
PERFORMANCE STANDARDS SHALL BE UNIFORMLY APPLIED FOR LIKE DUTIES IN LIKE
CIRCUMSTANCES. THE PORTION OF THE PROVISION HERE IN DISPUTE BEARS NO
MATERIAL DIFFERENCE FROM PROPOSAL 5 WHICH WAS BEFORE THE AUTHORITY IN
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND
OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 3 FLRA 784 (1980). IN
THAT DECISION THAT AUTHORITY HELD THAT THE PORTION OF PROPOSAL 5
PROVIDING THAT PERFORMANCE STANDARDS WILL BE FAIR AND EQUITABLE AND
CONSISTENT WITH THE CLASSIFICATION STANDARDS FOR THE JOB WAS WITHIN THE
DUTY TO BARGAIN UNDER SECTION 7106(B)(3) OF THE STATUTE AS AN
APPROPRIATE ARRANGEMENT FOR EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S
AUTHORITY UNDER THE STATUTE TO DIRECT EMPLOYEES AND ASSIGN WORK THROUGH
THE ESTABLISHMENT OF PERFORMANCE STANDARDS AND TO DISCIPLINE EMPLOYEES
FOR UNACCEPTABLE PERFORMANCE. THE DISPUTED PORTION OF ARTICLE 16
SECTION 8 SIMILARLY WOULD ESTABLISH A GENERAL, NONQUANTITATIVE STANDARD
BY WHICH THE APPLICATION OF CRITICAL ELEMENTS AND PERFORMANCE STANDARDS
ESTABLISHED BY MANAGEMENT MAY SUBSEQUENTLY BE EVALUATED IN A GRIEVANCE
BY AN EMPLOYEE WHO BELIEVES THAT HE HAS BEEN ADVERSELY AFFECTED BY THE
APPLICATION OF MANAGEMENT'S PERFORMANCE STANDARDS TO HIM. THUS, FOR THE
REASONS FULLY SET FORTH IN OFFICE OF PERSONNEL MANAGEMENT, THE DISPUTED
PORTION OF ARTICLE 16 SECTION 8 MUST BE HELD TO BE WITHIN THE DUTY TO
BARGAIN UNDER THE STATUTE.
THE LAST TWO PROVISIONS IN DISPUTE HEREIN, ARTICLE 36 SECTION 5C AND
ARTICLE 37 SECTION 7D, CONTAIN IDENTICAL LANGUAGE PROVIDING THAT
EMPLOYEES WHO ARE ON OFFICIAL TIME REPRESENTING THE UNION IN COLLECTIVE
BARGAINING NEGOTIATIONS WITH THE AGENCY WILL BE ENTITLED TO
REIMBURSEMENT FOR THEIR TRAVEL AND PER DIEM EXPENSES. EACH OF THESE
PROVISIONS, HOWEVER, IS INTENDED TO APPLY IN A DIFFERENT BARGAINING
SITUATION. SPECIFICALLY, ARTICLE 36 SECTION 5C APPLIES WHEN THE PARTIES
ARE NEGOTIATING LOCAL AGREEMENTS TO SUPPLEMENT THE NATIONAL (MASTER)
AGREEMENT AND ARTICLE 37 SECTION 7D APPLIES WHEN THE PARTIES ARE
INVOLVED IN IMPACT BARGAINING.
WITH REGARD TO THE REIMBURSEMENT FOR TRAVEL AND PER DIEM EXPENSES
INCURRED DURING COLLECTIVE BARGAINING NEGOTIATIONS, THE AUTHORITY
DETERMINED IN INTERPRETATION AND GUIDANCE, 2 FLRA 265(1979) THAT WHEN AN
EMPLOYEE IS AUTHORIZED OFFICIAL TIME UNDER SECTION 7131(A) OF THE
STATUTE /5/ TO PARTICIPATE IN SUCH COLLECTIVE BARGAINING NEGOTIATIONS
THAT EMPLOYEE IS DEEMED TO BE ON "OFFICIAL BUSINESS FOR THE GOVERNMENT"
AND, THUS, ENTITLED TO REIMBURSEMENT FOR TRAVEL AND PER DIEM EXPENSES.
FURTHER IN THIS RESPECT, THE AUTHORITY CONCLUDED IN BUREAU OF ALCOHOL,
TOBACCO AND FIREARMS, WESTERN REGION, DEPARTMENT OF THE TREASURY, SAN
FRANCISCO, CALIFORNIA AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 81,
4 FLRA NO. 40(1980), ENFORCED SUB NOM. BUREAU OF ALCOHOL, TOBACCO AND
FIREARMS V. FEDERAL LABOR RELATIONS AUTHORITY, 672 F.2D 732 (9TH CIR.
1982) THAT EMPLOYEES REPRESENTING AN EXCLUSIVE REPRESENTATIVE DURING
"IMPACT" BARGAINING WITH AN AGENCY ARE AUTHORIZED OFFICIAL TIME UNDER
SECTION 7131(A) AND, AS A CONSEQUENCE, REIMBURSEMENT FOR THEIR TRAVEL
AND PER DIEM EXPENSES. ACCORDINGLY, SINCE ARTICLE 37 SECTION 7D,
PROVIDING FOR REIMBURSEMENT FOR TRAVEL AND PER DIEM EXPENSES FOR
EMPLOYEES ON OFFICIAL TIME DURING "IMPACT" BARGAINING WITH THE AGENCY,
MERELY INCORPORATES INTO THE PARTIES' COLLECTIVE BARGAINING AGREEMENT
THE LEGAL ENTITLEMENT TO SUCH EXPENSES, IT IS CLEARLY WITHIN THE DUTY TO
BARGAIN UNDER THE STATUTE.
IN CONTRAST TO THE STATUTORY AUTHORIZATION FOR OFFICIAL TIME AND,
THEREBY, TRAVEL AND PER DIEM EXPENSE REIMBURSEMENT FOR EMPLOYEES ENGAGED
IN IMPACT BARGAINING, THE AUTHORITY DETERMINED IN INTERPRETATION AND
GUIDANCE, 7 FLRA NO. 105(1982) THAT EMPLOYEES ARE NOT AUTHORIZED
OFFICIAL TIME UNDER SECTION 7131(A) TO PARTICIPATE IN THE NEGOTIATION OF
LOCAL AGREEMENTS TO SUPPLEMENT A NATIONAL OR CONTROLLING (MASTER)
AGREEMENT. HOWEVER, THE AUTHORITY ALSO INDICATED IN THIS DECISION THAT
WHEN THE PARTIES AT THE MASTER AGREEMENT LEVEL AGREE TO AUTHORIZE THE
CREATION OF LOCAL SUPPLEMENTS THEY REMAIN EMPOWERED PURSUANT TO SECTION
7131(D) OF THE STATUTE /6/ TO NEGOTIATE OFFICIAL TIME FOR EMPLOYEES
PARTICIPATING IN SUCH NEGOTIATION IN ANY AMOUNT THEY AGREE IS
"REASONABLE, NECESSARY, AND IN THE PUBLIC INTEREST." FURTHER, INSOFAR AS
THE PARTIES MAY ESTABLISH A CONTRACTUAL ENTITLEMENT TO OFFICIAL TIME FOR
EMPLOYEES REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE NEGOTIATION OF
LOCAL SUPPLEMENTS THE PARTIES ALSO MAY DETERMINE THE EXTENT TO WHICH
TRAVEL IN CONNECTION WITH SUCH NEGOTIATIONS WILL OCCUR DURING OFFICIAL
TIME. OF COURSE, SINCE THE PARTIES ONLY MAY NEGOTIATE OFFICIAL TIME
UNDER SECTION 7131(D) WHICH IS IN "THE PUBLIC INTEREST," TRAVEL WHICH
OCCURRED DURING SUCH OFFICIAL TIME ALSO WOULD BE "IN THE PUBLIC
INTEREST" AND PERFORCE WOULD ENTITLE AN EMPLOYEE TO TRAVEL AND PER DIEM
EXPENSE REIMBURSEMENT. SEE NATIONAL TREASURY EMPLOYEES UNION AND
DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE, 9 FLRA NO. 70(1982).
THEREFORE, BASED ON THE AFOREMENTIONED DECISIONS, SINCE THE PARTIES
IN THIS CASE HAVE ALREADY AGREED THAT EMPLOYEES REPRESENTING THE UNION
DURING THE NEGOTIATION OF LOCAL SUPPLEMENTS WILL BE ON OFFICIAL TIME
(WHICH AGREEMENT IS NOT IN DISPUTE), THE REQUIREMENT CONTAINED IN
SECTION 5 OF ARTICLE 36 THAT EMPLOYEES BE REIMBURSED FOR THEIR TRAVEL
AND PER DIEM EXPENSES FOR THAT TRAVEL WHICH OCCURS DURING SUCH OFFICIAL
TIME DOES NOT VIOLATE LAW BUT RATHER IS WITHIN THE DUTY TO BARGAIN.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE UNION'S
PETITION FOR REVIEW RELATING TO ARTICLE 10 SECTION 9 (LAST SENTENCE) AND
ARTICLE 12 SECTIONS 12A AND B BE, AND IT HEREBY IS DISMISSED. IT IS
FURTHER ORDERED THAT THE AGENCY SHALL RESCIND ITS DISAPPROVAL OF ARTICLE
2, SECTIONS 1A AND B, ARTICLE 32 SECTION 10A, ARTICLE 40 SECTION 3,
ARTICLE 3 SECTIONS 12, 13 AND 14, ARTICLE 16 SECTION 8 (SECOND
SENTENCE), ARTICLE 36 SECTION 5C AND ARTICLE 37 SECTION 7D WHICH WERE
BARGAINED ON AND AGREED TO BY THE PARTIES AT THE LOCAL LEVEL. /7/
ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
ARTICLE 2, SECTIONS 1A AND B
A. IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THIS AGREEMENT,
ALL MANAGEMENT OFFICIALS AND EMPLOYEES ARE GOVERNED BY EXISTING OR
FUTURE LAWS; AND GOVERNMENT-WIDE AND TREASURY DEPARTMENT RULES OR
REGULATIONS IN EFFECT UPON THE EFFECTIVE DATE OF THE AGREEMENT.
B. SHOULD ANY CONFLICT ARISE IN THE ADMINISTRATION OF THIS AGREEMENT
BETWEEN THE TERMS OF THIS AGREEMENT AND ANY GOVERNMENT-WIDE OR AGENCY
RULE OR REGULATION SUCH AS THE FEDERAL PERSONNEL MANUAL, OR THE TREASURY
PERSONNEL MANUAL ISSUED AFTER THE EFFECTIVE DATE OF THIS AGREEMENT, THE
TERMS OF THIS AGREEMENT WILL SUPERSEDE AND GOVERN.
ARTICLE 3, SECTIONS 12, 13 AND 14
SECTION 12 OFFICE OF MANAGEMENT INTEGRITY INTERVIEWS
A. WHEN AN EMPLOYEE IS INTERVIEWED BY THE OFFICE OF MANAGEMENT
INTEGRITY, AND THE EMPLOYEE IS THE SUBJECT OF AN INVESTIGATION, THE
EMPLOYEE WILL BE INFORMED OF THE GENERAL NATURE OF THE MATTER (I.E.
CRIMINAL OR ADMINISTRATIVE MISCONDUCT) BEING INVESTIGATED, AND, UPON
REQUEST, BE INFORMED WHETHER OR NOT THE INTERVIEW IS RELATED TO POSSIBLE
CRIMINAL MISCONDUCT BY HIM.
B. WHERE THE SUBJECT OF AN OFFICE OF MANAGEMENT INTEGRITY
INVESTIGATION IS BEING INTERVIEWED REGARDING A MATTER OF CRIMINAL
MISCONDUCT BY HIM, THE EMPLOYEE HAS THE RIGHT TO BE REPRESENTED AT THE
INTERVIEW, AND THE RIGHT TO REMAIN SILENT AND NOT TO ANSWER ANY
QUESTIONS.
C. WHEN AN EMPLOYEE IS THE SUBJECT OF A CUSTODIAL INTERROGATION BY
THE OFFICE OF MANAGEMENT INTEGRITY AS THE SUBJECT OF AN ALLEGATION THAT
THE EMPLOYEE IS GUILTY OF CRIMINAL MISCONDUCT, HE WILL BE ADVISED OF HIS
RIGHT TO COUNSEL AND HIS RIGHT TO REMAIN SILENT.
D. IN AN INTERVIEW INVOLVING POSSIBLE CRIMINAL MATTERS, WHERE
PROSECUTION HAS BEEN DECLINED BY APPROPRIATE AUTHORITY, AN EMPLOYEE WILL
BE REQUIRED TO ANSWER QUESTIONS ONLY AFTER THE OFFICE OF MANAGEMENT
INTEGRITY REPRESENTATIVE HAS PROVIDED THE EMPLOYEE WITH THE APPROPRIATE
ASSURANCES. PRIOR TO REQUIRING AN EMPLOYEE TO ANSWER UNDER SUCH
CIRCUMSTANCES, THE OFFICE OF MANAGEMENT INTEGRITY REPRESENTATIVE SHALL
INFORM THE EMPLOYEE THAT HIS STATEMENTS CONCERNING THE ALLEGATIONS
DURING THE INTERVIEW CANNOT AND WILL NOT BE USED AGAINST HIM IN A
SUBSEQUENT CRIMINAL PROCEEDING, EXCEPT FOR POSSIBLE PERJURY CHARGES FOR
ANY FALSE ANSWERS GIVEN DURING THE INTERVIEW.
E. IN ANY INTERVIEW WHERE THE EMPLOYEE IS NOT THE SUBJECT OF A
CRIMINAL INVESTIGATION, OR WHEN AN EMPLOYEE HAS BEEN ADVISED OF HIS
RIGHTS UNDER SUBSECTION D ABOVE, THE OFFICE OF MANAGEMENT INTEGRITY
REPRESENTATIVE HAS THE AUTHORITY TO INFORM THE EMPLOYEE THAT:
1) THE EMPLOYEE MUST DISCLOSE ANY INFORMATION KNOWN TO HIM CONCERNING
THE MATTER BEING
INVESTIGATED;
2) THE EMPLOYEE MUST ANSWER ANY QUESTIONS PUT TO HIM REGARDING ANY
MATTER WHICH HAS A
REASONABLE RELATIONSHIP TO MATTERS OF OFFICIAL INTEREST;
3) THE EMPLOYEE'S FAILURE OR REFUSAL TO ANSWER SUCH QUESTIONS MAY
RESULT IN DISCIPLINARY OR
ADVERSE ACTION; AND
4) A FALSE ANSWER TO ANY SUCH QUESTIONS MAY RESULT IN CRIMINAL
PROSECUTION.
WHEN AN EMPLOYEE REFUSES TO ANSWER A PROPER QUESTION, THE OFFICE OF
MANAGEMENT INTEGRITY REPRESENTATIVE SHALL INFORM HIM OF HIS OBLIGATION
TO ANSWER.
F. WHERE A REPRESENTATIVE OF THE OFFICE OF MANAGEMENT INTEGRITY
TAPE-RECORDS AN EMPLOYEE INTERVIEW, OR CAUSES A STENOGRAPHIC RECORD TO
BE MADE OF SUCH AN INTERVIEW, THE EMPLOYEE SHALL RECEIVE A VERBATIM
TRANSCRIPT OF THE INTERVIEW.
G. WHERE POSSIBLE IN A NON-CRIMINAL INVESTIGATION, THE OFFICE OF
MANAGEMENT INTEGRITY SHALL CONDUCT EMPLOYEE INTERVIEWS DURING THE
EMPLOYEES' DUTY HOURS.
H. WHERE A REPRESENTATIVE OF THE OFFICE OF MANAGEMENT INTEGRITY
DENIES AN EMPLOYEE THE OPPORTUNITY TO BE REPRESENTED BY THE UNION DURING
AN INTERVIEW UNDER SECTION 11 OF THIS ARTICLE, THE EMPLOYEE WILL, UPON
REQUEST, BE PROVIDED WITH THE REASON FOR THE DENIAL IN WRITING.
SECTION 13
A. AN EMPLOYEE WILL BE NOTIFIED OF A WRITTEN COMPLAINT RECEIVED BY
MANAGEMENT. A COMPLAINT FOR THE PURPOSE OF THIS SECTION IS DEFINED AS A
WRITTEN STATEMENT BY AN IDENTIFIED COMPLAINANT INDICATING
DISSATISFACTION WITH AN EMPLOYEE BY REASON OF CONDUCT, APPEARANCE OR
CARELESSNESS OR PROPRIETY OF AN ACTION TAKEN BY THE EMPLOYEE.
B. NOTIFICATION SHALL BE PROVIDED BY MANAGEMENT AS SOON AS
PRACTICABLE FOLLOWING THE RECEIPT OF THE COMPLAINT. UPON REQUEST, THE
EMPLOYEE SHALL BE FURNISHED WITH A COPY OF THE COMPLAINT; OR IF THE
COMPLAINT INVOLVES MORE THAN ONE EMPLOYEE, THAT PORTION OF THE COMPLAINT
RELATED TO THE REQUESTING EMPLOYEE. A COPY OF A WRITTEN RESPONSE BY
MANAGEMENT WILL BE FURNISHED TO THE EMPLOYEE UPON WRITTEN REQUEST BY THE
EMPLOYEE.
C. THIS SECTION DOES NOT APPLY TO COMPLAINTS WHICH CONTAIN
ALLEGATIONS OF CRIMINAL MISCONDUCT.
SECTION 14
WHEN THE EMPLOYER EXERCISES ITS LEGAL RIGHT TO SEARCH AN EMPLOYEE'S
POSSESSIONS AT THE WORKSITE (E.G. DESK, LOCKER, CAR, CLOTHING, ETC.) IN
A NON-CRIMINAL MATTER, THE EMPLOYEE WILL BE ALLOWED TO BE PRESENT DURING
THE SEARCH IF THE EMPLOYEE IS OTHERWISE PRESENT AT THE WORKSITE. THE
EMPLOYEE SHALL, UPON REQUEST, BE GIVEN AN OPPORTUNITY TO BE REPRESENTED
BY THE UNION DURING THE SEARCH, PROVIDED THAT THE SUPPLYING OF SUCH
REPRESENTATION BY THE UNION SHALL NOT UNDULY DELAY THE SEARCH OR IMPEDE
THE PURPOSE FOR WHICH THE SEARCH IS CONDUCTED.
ARTICLE 10, SECTION 9
IN THE OFFICE OF REGULATIONS AND RULINGS THE FOLLOWING SECTION WILL
CONTINUE TO APPLY.
THE EMPLOYER WILL SEEK TO MAKE AVAILABLE TO BARGAINING UNIT EMPLOYEES
ANY TRAINING COURSE THAT ENHANCES THE EMPLOYEE'S PROFICIENCY IN THE JOB
AND PROMOTIONAL OPPORTUNITIES. IN CASES WHERE SUCH COURSES CANNOT
ACCOMMODATE ALL INTERESTED EMPLOYEES OR THE NEEDS OF THE EMPLOYER
PRECLUDE HIM FROM RECOMMENDING ALL INTERESTED EMPLOYEES, THE EMPLOYER
WILL SEEK TO PROVIDE ALTERNATIVE TRAINING OPPORTUNITIES FOR THOSE
INTERESTED EMPLOYEES. ALL EMPLOYEES THROUGH GS-13 WILL BE PROVIDED WITH
AN OPPORTUNITY TO UNDERTAKE ASSIGNMENTS ON THE BASIS OF WHICH THE
ABILITY TO PERFORM BEYOND PRESENT GRADE LEVEL CAN BE EVALUATED.
ARTICLE 12, SECTIONS 12A AND B
A. WHERE THE EMPLOYER HAS DETERMINED THAT VACANT POSITIONS ARE TO BE
FILLED WITHIN THREE MONTHS FROM THE DATE OF A REDUCTION IN FORCE ACTION,
THE EMPLOYER SHALL PLACE EMPLOYEES RELEASED FROM THEIR COMPETITIVE
LEVELS IN THESE VACANT POSITIONS FOR WHICH THEY ARE QUALIFIED WITHIN
THEIR COMPETITIVE AREAS.
B. AN EMPLOYEE SHALL BE ASSIGNED TO A VACANCY BY WAIVING
QUALIFICATION REQUIREMENTS WHEN THE EMPLOYEE HAS THE CAPACITY,
ADAPTABILITY AND SPECIAL SKILLS REQUIRED BY THE POSITION. POSITIVE
EDUCATION REQUIREMENTS MAY NOT BE WAIVED IN ANY CASE.
ARTICLE 16, SECTION 8
PERFORMANCE EVALUATIONS SHALL BE BASED UPON REASONABLE PERFORMANCE
STANDARDS FOR EACH POSITION. SUCH PERFORMANCE STANDARDS SHALL BE
UNIFORMLY APPLIED FOR LIKE DUTIES IN LIKE CIRCUMSTANCES.
ARTICLE 32, SECTION 10A
A. THE ARBITRATOR SHALL HAVE NO AUTHORITY TO CHANGE, ALTER, MODIFY,
DELETE OR ADD TO THE TERMS AND PROVISIONS OF THIS AGREEMENT AND/OR
APPLICABLE POLICIES AND REGULATIONS. IN THE ISSUANCE OF ANY AWARD UNDER
THIS ARTICLE, THE ARBITRATOR SHALL BE GOVERNED BY:
1. EXISTING AND FUTURE LAWS
2. THE REGULATIONS OF APPROPRIATE AUTHORITIES (I.E., GOVERNMENT-WIDE
RULES OR
REGULATIONS), INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL
MANUAL IN EXISTENCE AT THE
TIME THIS AGREEMENT WAS APPROVED;
3. FUTURE REGULATIONS OF APPROPRIATE AUTHORITIES INCLUDING POLICIES
SET FORTH IN THE
FEDERAL PERSONNEL MANUAL, TO THE EXTENT THAT THEY DO NOT CONFLICT
WITH THE PROVISIONS OF THIS
AGREEMENT; AND,
4. THE REGULATIONS OF THE AGENCY AND/OR THE EMPLOYER IN EXISTENCE AT
THE TIME THIS
AGREEMENT WAS APPROVED - AND FUTURE REGULATIONS OF THE AGENCY AND/OR
THE EMPLOYER - TO THE
EXTENT THAT THEY DO NOT CONFLICT WITH THE PROVISIONS OF THIS
AGREEMENT.
ARTICLE 36, SECTION 5C
C. AN EMPLOYEE REPRESENTING THE UNION IN NEGOTIATIONS ON OFFICIAL
TIME UNDER THIS ARTICLE SHALL BE ENTITLED TO REIMBURSEMENT FOR TRAVEL
AND PER DIEM EXPENSES IF OTHERWISE ELIGIBLE UNDER APPLICABLE LAW AND
REGULATIONS.
ARTICLE 37, SECTION 7D
D. AN EMPLOYEE REPRESENTING THE UNION IN NEGOTIATIONS ON OFFICIAL
TIME UNDER THIS ARTICLE SHALL BE ENTITLED TO REIMBURSEMENT FOR TRAVEL
AND PER DIEM EXPENSES IF OTHERWISE ELIGIBLE UNDER APPLICABLE LAW AND
REGULATION.
ARTICLE 40, SECTION 3
A. THE PARTIES ACKNOWLEDGE THAT DURING THE NEGOTIATIONS WHICH
RESULTED IN THIS AGREEMENT, EACH HAD THE UNLIMITED RIGHT AND OPPORTUNITY
TO MAKE DEMANDS AND PROPOSALS WITH RESPECT TO ANY SUBJECT OR MATTER NOT
REMOVED FROM THE AREA OF COLLECTIVE BARGAINING BY APPLICABLE LAWS,
EXISTING AGENCY POLICIES AND REGULATIONS FOR WHICH A COMPELLING NEED
EXISTS, AND THE REGULATIONS OF OTHER APPROPRIATE AUTHORITIES. THE
UNDERSTANDINGS AND AGREEMENTS ARRIVED AT BY THE PARTIES AFTER THE
EXERCISE OF THAT RIGHT AND OPPORTUNITY ARE SET FORTH IN THIS AGREEMENT.
B. THEREFORE, THE EMPLOYER AND THE UNION, FOR THE LIFE OF THIS
AGREEMENT, EACH VOLUNTARILY AND UNQUALIFIEDLY RELINQUISHES THE RIGHT,
AND EACH AGREES THAT THE OTHER SHALL NOT BE OBLIGATED, TO BARGAIN
COLLECTIVELY WITH RESPECT TO ANY SUBJECT OR MATTER NOT SPECIFICALLY
REFERRED TO OR COVERED IN THIS AGREEMENT, EVEN THOUGH SUCH SUBJECTS OR
MATTERS MAY NOT HAVE BEEN WITHIN THE KNOWLEDGE OR CONTEMPLATION OF
EITHER OR BOTH OF THE PARTIES AT THE TIME THAT THEY NEGOTIATED OR SIGNED
THIS AGREEMENT.
IN SO AGREEING, THE PARTIES EXPRESSLY FORFEIT THEIR RESPECTIVE RIGHTS
TO PROPOSE OR INITIATE CHANGES IN THE CONDITIONS OF EMPLOYMENT DURING
THE LIFE OF THIS AGREEMENT WHICH ARE NEGOTIABLE IN SUBSTANCE UNDER THE
CIVIL SERVICE REFORM ACT AND WHICH DO NOT INVOLVE THE EXERCISE OF
MANAGEMENT RIGHTS. THIS SUBSECTION DOES NOT ALTER THE EMPLOYER'S RIGHT
TO EXERCISE ITS MANAGEMENT RIGHTS AS SET FORTH IN ARTICLE 5, OR THE
UNION'S RIGHT TO ENGAGE IN IMPACT BARGAINING AS SET FORTH IN ARTICLE 37.
C. THE PARTIES ALSO VOLUNTARILY AND UNQUALIFIEDLY RELINQUISH THE
RIGHT, AND EACH AGREES THAT THE OTHER SHALL NOT BE OBLIGATED, TO BARGAIN
COLLECTIVELY AND RESPECT TO ANY MODIFICATION OF THE TERMS AND PROVISIONS
CONTAINED IN THIS AGREEMENT, IF SUCH MODIFICATION IS TO BECOME EFFECTIVE
PRIOR TO THE EXPIRATION DATE OF THIS AGREEMENT, EXCEPT AS MAY
SPECIFICALLY BE PROVIDED FOR IN THE REOPENING PROVISIONS CONTAINED IN
THIS AGREEMENT.
D. ANY DISPUTES WHICH ARISE CONCERNING THE APPLICATION OF THIS
SECTION, SHALL BE SUBJECT TO THE GRIEVANCE AND ARBITRATION PROCEDURES
CONTAINED IN THIS AGREEMENT.
/1/ CONTRARY TO THE UNION'S ASSERTIONS, THE AGREEMENT WAS PROPERLY
DISAPPROVED WITHIN THE MEANING OF SECTION 7114(C) BY "THE HEAD OF THE
AGENCY" OR HIS DESIGNEE, IN THIS CASE, THE DIRECTOR OF PERSONNEL,
DEPARTMENT OF THE TREASURY. SEE 5 U.S.C. 101,105; AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3656 AND FEDERAL TRADE
COMMISSION, BOSTON REGIONAL OFFICE, MASSACHUSETTS, 4 FLRA NO. 92(1980).
/2/ H. REP. NO. 95-1717, 95TH CONG., 2D SESS. 155(1978).
/3/ SECTION 7117 OF THE STATUTE PROVIDES, IN PERTINENT PART, AS
FOLLOWS:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
(A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
BARGAIN IN GOOD FAITH
SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
GOVERNMENT-WIDE RULE OR
REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
REGULATION ONLY IF THE RULE
OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
(2) THE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT
INCONSISTENT WITH FEDERAL
LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION, EXTEND TO MATTERS
WHICH ARE THE SUBJECT OF ANY
AGENCY RULE OR REGULATION . . . ONLY IF THE AUTHORITY HAS DETERMINED
UNDER SUBSECTION (B) OF
THIS SECTION THAT NO COMPELLING NEED (AS DETERMINED UNDER REGULATIONS
PRESCRIBED BY THE
AUTHORITY) EXISTS FOR THE RULE OR REGULATION.
/4/ SECTION 7106 OF THE STATUTE PROVIDES, IN PERTINENT PART, AS
FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE
AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
(1) TO DETERMINE THE . . . INTERNAL SECURITY PRACTICES OF THE
AGENCY(.)
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
. . . .
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION(.)
/5/ SECTION 7131(A) PROVIDES, AS FOLLOWS:
SEC. 7131. OFFICIAL TIME
(A) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE
NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT UNDER THIS CHAPTER
SHALL BE AUTHORIZED
OFFICIAL TIME FOR SUCH PURPOSES, INCLUDING ATTENDANCE AT IMPASSE
PROCEEDING, DURING THE TIME
THE EMPLOYEE OTHERWISE WOULD BE IN A DUTY STATUS. THE NUMBER OF
EMPLOYEES FOR WHOM OFFICIAL
TIME IS AUTHORIZED UNDER THIS SUBSECTION SHALL NOT EXCEED THE NUMBER
OF INDIVIDUALS DESIGNATED
AS REPRESENTING THE AGENCY FOR SUCH PURPOSES.
/6/ SECTION 7131(D) OF THE STATUTE PROVIDES:
SEC. 7131. OFFICIAL TIME
. . . .
(D) EXCEPT AS PROVIDED IN THE PRECEDING SUBSECTIONS OF THIS SECTION--
(1) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE, OR
(2) IN CONNECTION WITH ANY OTHER MATTER COVERED BY THIS (STATUTE),
ANY EMPLOYEE IN AN
APPROPRIATE UNIT REPRESENTED BY AN EXCLUSIVE REPRESENTATIVE, SHALL BE
GRANTED OFFICIAL TIME IN
ANY AMOUNT THE AGENCY AND THE EXCLUSIVE REPRESENTATIVE INVOLVED AGREE
TO BE REASONABLE,
NECESSARY, AND IN THE PUBLIC INTEREST.
/7/ IN FINDING THESE ARTICLES NEGOTIABLE, THE AUTHORITY MAKES NO
JUDGMENT AS TO THEIR MERITS.
9 FLRA 137; FLRA O-AR-263; AUGUST 16, 1982.
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1418
UNION
AND
U.S. INTERNATIONAL COMMUNICATION
AGENCY, VOICE OF AMERICA
AGENCY
CASE NO. O-AR-263
DECISION
THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR MOLLIE HEATH BOWERS FILED BY THE AGENCY UNDER SECTION 7122(A)
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE)
AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS. THE UNION FILED
AN OPPOSITION.
THE GRIEVANCE IN THIS CASE CONCERNS A DISPUTE OVER THE INTERPRETATION
OF A PROVISION OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT RELATING
TO THE SETTING OF PAY FOR THE AGENCY'S RADIO BROADCAST TECHNICIANS, WHO
HAVE THE RIGHT TO NEGOTIATE CERTAIN ASPECTS OF THEIR WAGES. THE DISPUTE
WAS NOT RESOLVED AND WAS SUBMITTED TO ARBITRATION.
THE ARBITRATOR EXPLAINED THAT THE PAY OF THESE EMPLOYEES IS SET
CONSISTENT WITH PREVAILING RATES IN THE PRIVATE SECTOR BY MEANS OF WAGE
SURVEYS OF THE PRIVATE SECTOR. THE PARTIES; COLLECTIVE BARGAINING
AGREEMENT FORMULA FOR CALCULATING THE PAY SCHEDULE IS TO DETERMINE THE
PRIVATE SECTOR HOURLY RATES BY DIVIDING THE VARIOUS PRIVATE SECTOR
WEEKLY RATES BY THE RESPECTIVE "NUMBER OF HOURS WORKED PER WEEK." THE
ARBITRATOR STATED THE ISSUE BEFORE HER AS WHETHER THE CALCULATION OF
"HOURS WORKED," AS THIS TERM IS USED IN THE AGREEMENT, SHOULD EXCLUDE
PAID REST/COFFEE BREAKS OF PRIVATE SECTOR ESTABLISHMENTS FOR PURPOSES OF
DETERMINING THE HOURLY RATE FOR THE 1981 WAGE SURVEY. THE ARBITRATOR
FIRST NOTED THAT THE LANGUAGE OF THE AGREEMENT PROVISION WAS NOT CLEAR
AND UNAMBIGUOUS, AND FROM THE EVIDENCE AND TESTIMONY PRESENTED THE
ARBITRATOR CONCLUDED THAT NO MUTUAL UNDERSTANDING ON THE PART OF THE
PARTIES AS TO THE MEANING OF THE LANGUAGE WAS EVIDENT.
ACCORDINGLY, SHE LOOKED TO THE BEHAVIOR OF THE PARTIES SINCE THE 1977
COLLECTIVE BARGAINING AGREEMENT FOR GUIDANCE IN DETERMINING THE MEANING
OF THE DISPUTED PROVISION. IN THIS REGARD SHE FOUND AS FOLLOWS:
(T)HERE IS AN ESTABLISHED RECORD OF THREE CONSECUTIVE SURVEYS WHERE
REST/COFFEE BREAKS WERE
DEDUCTED, FIFTY-TWO PAY PERIODS WHERE THE WAGES PAID REFLECTED THE
DEDUCTION OF REST/COFFEE
BREAKS, AND ONE INTERVENING CONTRACT NEGOTIATION WHERE THE
APPLICATION AND INTERPRETATION OF
ARTICLE V.A., SECTION 2.A. WAS NOT DISCUSSED BUT RATHER FORWARDED
VERBATIM FROM THE 1977
CONTRACT.
CONSEQUENTLY, THE ARBITRATOR RULED THAT UNDER THE PARTIES' COLLECTIVE
BARGAINING AGREEMENT, PAID REST/COFFEE BREAKS WERE TO BE EXCLUDED FROM
THE CALCULATION OF HOURS WORKED AND ORDERED IMPLEMENTATION RETROACTIVE
TO JANUARY 25, 1981, OF THE PAY SCHEDULE BASED ON SUCH A CALCULATION.
IN ITS FIRST EXCEPTION THE AGENCY CONTENDS THAT THE CENTRAL FINDING
OF FACT UNDERLYING THE AWARD IS THAT THERE WAS NO MUTUAL UNDERSTANDING
AS TO THE MEANING OF THE TERM "HOURS WORKED" AND CONTENDS THAT SUCH
FINDING IS CLEARLY ERRONEOUS AND CONSTITUTES A GROSS MISTAKE OF FACT BUT
FOR WHICH THE ARBITRATOR WOULD HAVE REACHED A DIFFERENT RESULT. IN
SUPPORT THE AGENCY MAINTAINS THAT AT NEGOTIATIONS BOTH PARTIES MUTUALLY
UNDERSTOOD AND AGREED THAT "HOURS WORKED" WOULD NOT EXCLUDE REST/COFFEE
BREAKS. IN ITS SECOND EXCEPTION THE AGENCY CONTENDS THAT THE
ARBITRATOR'S INTERPRETATION OF "HOURS WORKED" IS NOT SUPPORTED BY THE
EVIDENCE AND CONSEQUENTLY CONSTITUTES AN AMENDMENT OF THE AGREEMENT THAT
WAS IN EXCESS OF HER AUTHORITY.
BOTH THE AGENCY'S FIRST AND SECOND EXCEPTIONS CONSTITUTE NOTHING MORE
THAN DISAGREEMENT WITH THE ARBITRATOR'S INTERPRETATION AND APPLICATION
OF THE AGREEMENT PROVISION BEFORE HER. THE AGENCY IN THESE EXCEPTIONS
IS CLEARLY SEEKING TO HAVE ITS OWN INTERPRETATION OF THIS TERM
SUBSTITUTED FOR THE INTERPRETATION OF THE TERM BY THE ARBITRATOR AND
CONSEQUENTLY THESE EXCEPTIONS PROVIDE NO BASIS FOR FINDING THE AWARD
DEFICIENT. E.G., RED RIVER DEPOT AND NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-52, 3 FLRA 252(1980).
IN ITS THIRD AND FOURTH EXCEPTIONS THE AGENCY CONTENDS THAT THE AWARD
IS CONTRARY TO LAW AND DOES NOT DRAW ITS ESSENCE FROM THE AGREEMENT
BECAUSE IT WILL RESULT IN GROSSLY INFLATED WAGES THAT ARE NOT CONSISTENT
WITH PREVAILING RATES IN THE PRIVATE SECTOR AS REQUIRED BY LAW AND THAT
ARE NOT COMPARABLE TO THE PAY OF EMPLOYEES IN THE PRIVATE SECTOR AS
REQUIRED BY THE AGREEMENT. IN OPPOSITION THE UNION MAINTAINS THAT THE
PAY SCHEDULE ORDERED IMPLEMENTED BY THE ARBITRATOR IS CONSISTENT WITH
AND COMPARABLE TO PREVAILING RATES IN THE PRIVATE SECTOR BECAUSE IT IS
BASED ON THE LONGER WORKWEEK OF THE AGENCY TECHNICIANS AS COMPARED TO
PRIVATE SECTOR TECHNICIANS.
THE AGENCY'S THIRD AND FOURTH EXCEPTIONS PROVIDE NO BASIS FOR FINDING
THE AWARD DEFICIENT. WITH RESPECT TO EMPLOYEES WHO NEGOTIATE THEIR
WAGES, THE AUTHORITY EXPRESSLY HELD IN COLUMBIA BASIN TRADES COUNCIL AND
ALL OF ITS CONSTITUENT UNIONS, SPOKANE, WASHINGTON AND THE GRAND COULEE
PROJECT OFFICE, BUREAU OF RECLAMATION, U.S. DEPARTMENT OF INTERIOR,
GRAND COULEE, WASHINGTON, 9 FLRA NO. 23(1982) THAT NO PRECISE RATES OF
PAY ARE PRESCRIBED BY LAW FOR SUCH EMPLOYEES AND THAT COLLECTIVE
BARGAINING IS THE MEANS BY WHICH SUCH RATES ARE DETERMINED AND OBTAINED.
IN TERMS OF THIS CASE, THE PARTIES AGREED BY MEANS OF COLLECTIVE
BARGAINING THAT THE DETERMINATION OF SUCH RATES WOULD BE BY WAGE SURVEY
OF THE PRIVATE SECTOR AND THE PRIVATE SECTOR WEEKLY RATES WOULD BE
DIVIDED BY THE RESPECTIVE HOURS WORKED TO DETERMINE THE PREVAILING
HOURLY RATE TO BE APPLIED TO THE LONGER WORKWEEK OF AGENCY TECHNICIANS,
AND IT HAS NOT BEEN SHOWN THAT SUCH AGREEMENT IS IN ANY MANNER
INCONSISTENT WITH LAW. MOREOVER, WITH THE ARBITRATOR'S AWARD ONLY
RESOLVING THE PARTIES' DISPUTE OVER THE INTERPRETATION AND APPLICATION
OF THEIR COLLECTIVELY BARGAINED MEANS OF DETERMINING THE PAY RATES OF
AGENCY TECHNICIANS CONSISTENT WITH AND COMPARABLE TO THE PREVAILING
RATES IN THE PRIVATE SECTOR, THE AGENCY HAS LIKEWISE FAILED TO
DEMONSTRATE THAT THE AWARD IS CONTRARY TO LAW OR DOES NOT DRAW ITS
ESSENCE FROM THE AGREEMENT. SEE ID.
ACCORDINGLY, THE AGENCY'S EXCEPTIONS ARE DENIED.
ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
9 FLRA 136; FLRA 3-CU-52; AUGUST 16, 1982.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
ACTIVITY
AND
NATIONAL COUNCIL OF EEOC LOCALS, 216,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
AFL-CIO
PETITIONER
CASE NO. 3-CU-52
DECISION AND ORDER CLARIFYING UNIT
UPON A PETITION DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
UNDER SECTION 7111(B)(2) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), A HEARING WAS HELD BEFORE A HEARING
OFFICER OF THE AUTHORITY. THE HEARING OFFICER'S RULINGS MADE AT THE
HEARING ARE FREE FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
PARTIES' CONTENTIONS, THE AUTHORITY FINDS: THE NATIONAL COUNCIL OF EEOC
LOCALS, 216, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (AFGE)
WAS CERTIFIED ON APRIL 20, 1978 AS THE EXCLUSIVE BARGAINING
REPRESENTATIVE FOR A UNIT OF ALL NON-PROFESSIONAL AND PROFESSIONAL
GENERAL SCHEDULE, SCHEDULE A AND WAGE GRADE EMPLOYEES OF THE EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION. ESSENTIALLY, AFGE'S PETITION SEEKS
TO CLARIFY THE STATUS OF APPROXIMATELY 108 EMPLOYEES WHO THE ACTIVITY
CONTENDS SHOULD BE EXCLUDED FROM THE BARGAINING UNIT UNDER SECTION
7112(B) OF THE STATUTE ON THE GROUNDS THAT THEY ARE SUPERVISORS,
MANAGEMENT OFFICIALS, OR EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY.
SUPERVISORS /1/
THE AUTHORITY FINDS, IN AGREEMENT WITH THE ACTIVITY, THAT THE
INCUMBENTS IN THE FOLLOWING JOB CLASSIFICATIONS ARE SUPERVISORS WITHIN
THE MEANING OF SECTION 7103(A)(10) OF THE STATUTE: THE INCUMBENT IN THE
JOB CLASSIFICATION LEAD APPEALS OFFICER, GS-930-15, WHO ASSIGNS WORK TO
HIS SUBORDINATES, DISCIPLINES SUBORDINATES AND HAS EFFECTIVELY
RECOMMENDED THE HIRING OF, AND PROMOTIONS FOR, HIS SUBORDINATES; THE
INCUMBENTS IN THE JOB CLASSIFICATION OF GENERAL ATTORNEY (TEAM LEADER),
GS-905-14, WHO ASSIGN WORK TO THEIR SUBORDINATES, DISCIPLINE
SUBORDINATES AND HAVE EFFECTIVELY RECOMMENDED SUBORDINATES FOR
PROMOTIONS; THE INCUMBENTS IN THE JOB CLASSIFICATION OF ATTORNEY
EXAMINER (SENIOR ATTORNEY), GS-905-13, WHO ASSIGN WORK TO THEIR
SUBORDINATES, ADJUST GRIEVANCES, DISCIPLINE SUBORDINATES AND HAVE
EFFECTIVELY RECOMMENDED THE HIRING OF, AND PROMOTIONS FOR, THEIR
SUBORDINATES; THE INCUMBENT IN THE JOB CLASSIFICATION OF PERSONNEL
RESEARCH PSYCHOLOGIST, GS-180-15, WHO ASSIGNS WORK TO SUBORDINATES AND
HAS EFFECTIVELY RECOMMENDED THE HIRING OF, AS WELL AS AWARDS FOR,
SUBORDINATES; AND THE INCUMBENT IN THE JOB CLASSIFICATION OF EQUAL
OPPORTUNITY SPECIALIST, GS-160-14, P.D.H.-0370, WHO ASSIGNS WORK TO
SUBORDINATES, ADJUSTS GRIEVANCES AND HAS EFFECTIVELY RECOMMENDED THE
HIRING OF SUBORDINATES. FURTHER, THE AUTHORITY FINDS THAT THE ABOVE
DUTIES ARE NOT MERELY ROUTINE OR CLERICAL IN NATURE BUT REQUIRE THE
CONSISTENT EXERCISE OF INDEPENDENT JUDGMENT. ACCORDINGLY, THE AUTHORITY
SHALL ORDER THAT THE INCUMBENTS IN THE JOB CLASSIFICATIONS LISTED ABOVE
BE EXCLUDED FROM THE RECOGNIZED BARGAINING UNIT. /2/
MANAGEMENT OFFICIALS /3/
THE AUTHORITY FINDS, IN AGREEMENT WITH THE PETITIONER, THAT THE
INCUMBENTS IN THE JOB CLASSIFICATIONS LISTED IN APPENDIX A ARE NOT
MANAGEMENT OFFICIALS WITHIN THE MEANING OF SECTION 7103(A)(11) OF THE
STATUTE AND SHOULD REMAIN IN THE BARGAINING UNIT. IN THE LEAD CASE OF
DEPARTMENT OF THE NAVY, AUTOMATIC DATA PROCESSING SELECTION OFFICE, 7
FLRA NO. 24(1981), THE AUTHORITY INTERPRETED THE STATUTORY DEFINITION
OF "MANAGEMENT OFFICIAL" TO INCLUDE ONLY THOSE INDIVIDUALS WHO: (1)
CREATE, ESTABLISH OR PRESCRIBE GENERAL PRINCIPLES, PLANS OR COURSES OF
ACTION FOR AN AGENCY; (2) DECIDE UPON OR SETTLE UPON GENERAL
PRINCIPLES, PLANS OR COURSES OF ACTION FOR AN AGENCY; OR (3) BRING
ABOUT OR OBTAIN A RESULT AS TO THE ADOPTION OF GENERAL PRINCIPLES, PLANS
OR COURSES OF ACTION FOR AN AGENCY. APPLYING THESE CRITERIA TO THE
INSTANT CASE, THE AUTHORITY FINDS THAT THE INCUMBENTS IN THE JOB
CLASSIFICATIONS LISTED IN APPENDIX A ARE PROFESSIONALS WHOSE ACTIONS
ASSIST IN IMPLEMENTING, AS OPPOSED TO SHAPING, THE ACTIVITY'S POLICIES.
THUS, THE RECORD IS CLEAR THAT THESE INCUMBENTS ARE NOT MANAGEMENT
OFFICIALS IN THAT THEY DO NOT EXERCISE ANY DUTIES AND RESPONSIBILITIES
WHICH REQUIRE OR AUTHORIZE THEM TO FORMULATE, DETERMINE, OR INFLUENCE
THE POLICIES OF THE ACTIVITY WITHIN THE MEANING OF SECTION 7103(A)(11)
OF THE STATUTE AS INTERPRETED BY THE AUTHORITY. ACCORDINGLY, THE
AUTHORITY SHALL ORDER THAT THE INCUMBENTS IN THE JOB CLASSIFICATIONS
LISTED IN APPENDIX A REMAIN IN THE BARGAINING UNIT.
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY
THE AUTHORITY FINDS, IN AGREEMENT WITH THE PETITIONER, THAT THE
INCUMBENTS IN THE JOB CLASSIFICATIONS LISTED IN APPENDIX B ARE NOT
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY WITHIN THE MEANING OF SECTION 7112(B)(3) OF THE
STATUTE AND SHOULD REMAIN IN THE BARGAINING UNIT. THE RECORD
ESTABLISHES THAT THESE EMPLOYEES, WITH THE MINOR EXCEPTIONS DISCUSSED
BELOW, ARE NOT AT ALL INVOLVED IN DOING THE ACTIVITY'S INTERNAL
PERSONNEL WORK BUT PURSUANT TO THE MISSION OF THE ACTIVITY ARE HEARING
COMPLAINTS, AND/OR WRITING OR REVIEWING DECISIONS WHICH AFFECT AGENCIES
OTHER THAN THEIR OWN. THUS, FOR THE REASONS MORE FULLY SET FORTH IN
OFFICE OF PERSONNEL MANAGEMENT, 5 FLRA NO. 30(1981), /4/ THE AUTHORITY
FINDS THAT SUCH EMPLOYEES ARE NOT INVOLVED IN PERSONNEL WORK WITHIN THE
MEANING OF SECTION 7112(B)(3) OF THE STATUTE.
THE INCUMBENTS IN THE JOB CLASSIFICATIONS OF APPEALS OFFICER,
GS-930-11, 12, 13 AND GENERAL ATTORNEY, GS-905-11, 12, 13 LOCATED IN THE
OFFICE OF REVIEW AND APPEALS (ORA), ARE INVOLVED IN THE PROCESSING OF
APPEALS FROM FINAL AGENCY EEO DECISIONS. THEIR DUTIES INCLUDE REVIEW OF
THE INVESTIGATIVE FILE AND THE PARTIES' POSITIONS, EVALUATION OF THE
CASE WITH REGARD TO CASE LAW, STATUTE AND REGULATION, AND THE
PREPARATION OF A PROPOSED DECISION WHICH IS REVIEWED AT SEVERAL LEVELS
BEFORE BEING SIGNED BY THE COMMISSIONERS. IN THE COURSE OF THEIR
DUTIES, THEY MAY ON RARE OCCASION REVIEW DECISIONS PERTAINING TO
INTERNAL EEO COMPLAINTS. THE RECORD INDICATES THAT IN THE NINE-MONTH
PERIOD PRIOR TO THE HEARING, OF THE APPROXIMATELY 1500 CASES REVIEWED BY
THE ORA, 6 INVOLVED INTERNAL COMPLAINTS. THE RECORD FURTHER INDICATES
THAT THE ABOVE INCUMBENTS WERE ASSIGNED THESE CASES SPORADICALLY AND,
WHERE ASSIGNED, THESE CASES REPRESENTED ABOUT 1% OF THAT INDIVIDUAL'S
CASE LOAD. CONSEQUENTLY, THE AUTHORITY FINDS THAT THIS FUNCTION IS DE
MINIMIS AND INSUFFICIENT TO EXCLUDE THE INCUMBENTS INVOLVED FROM THE
BARGAINING UNIT UNDER SECTION 7112(B)(3) OF THE STATUTE. /5/
ACCORDINGLY, THE AUTHORITY SHALL ORDER THAT THE INCUMBENTS IN THE JOB
CLASSIFICATIONS LISTED IN APPENDIX B REMAIN IN THE BARGAINING UNIT.
ORDER
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN BE,
AND IT IS HEREBY IS, CLARIFIED BY EXCLUDING FROM SAID UNIT THE FOLLOWING
POSITIONS: LEAD APPEALS OFFICER, GS-930-15; GENERAL ATTORNEY, (TEAM
LEADER), GS-905-14; ATTORNEY EXAMINER (SENIOR ATTORNEY), GS-905-13;
PERSONNEL RESEARCH PSYCHOLOGIST, GS-180-15; AND EQUAL OPPORTUNITY
SPECIALIST, GS-160-14, P.D.H-0370.
FURTHER, IT IS ORDERED THAT ALL OTHER INCUMBENTS IN THE DISPUTED JOB
CLASSIFICATIONS SHALL REMAIN IN THE BARGAINING UNIT.
ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX A
JOB CLASSIFICATIONS OF INCUMBENTS ALLEGED TO BE MANAGEMENT
OFFICIALS
APPEALS OFFICER, GS-930-13
GENERAL ATTORNEY, GS-905-13
ATTORNEY EXAMINER, GS-905-13
CONGRESSIONAL LIAISON ANALYST, GS-301-13
BUDGET ANALYST, GS-560-13
ATTORNEY ADVISOR (CIVIL RIGHTS), GS-905-14
ATTORNEY ADVISOR (CIVIL RIGHTS), GS-905-13
PROGRAM ANALYST, GS-345-15
COMPUTER SYSTEMS ANALYST, GS-334-14
EQUAL OPPORTUNITY SPECIALIST, GS-160-14
EQUAL OPPORTUNITY SPECIALIST, GS-160-13
APPENDIX B
JOB CLASSIFICATIONS OF INCUMBENTS ALLEGED TO BE EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY
APPEALS OFFICER, GS-930-11, 12, 13
GENERAL ATTORNEY, GS-905-11, 12, 13
ATTORNEY EXAMINER, GS-905-13
GENERAL ATTORNEY (FULL JUNIOR HEARING OFFICER), GS-905-12
GENERAL ATTORNEY (JUNIOR HEARING OFFICER), GS-905-11
/1/ SECTION 7103(A)(10) OF THE STATUTE DEFINES A "SUPERVISOR" AS:
. . . AN INDIVIDUAL EMPLOYED BY AN AGENCY HAVING AUTHORITY IN THE
INTEREST OF THE AGENCY TO
HIRE, DIRECT, ASSIGN, PROMOTE, REWARD, TRANSFER, FURLOUGH, LAYOFF,
RECALL, SUSPEND,
DISCIPLINE, OR REMOVE EMPLOYEES, TO ADJUST THEIR GRIEVANCES, OR TO
EFFECTIVELY RECOMMEND SUCH
ACTION, IF THE EXERCISE OF THE AUTHORITY IS NOT MERELY ROUTINE OR
CLERICAL IN NATURE BUT
REQUIRES THE CONSISTENT EXERCISE OF INDEPENDENT JUDGMENT . . . .
/2/ IN VIEW OF THIS DETERMINATION, THE AUTHORITY FINDS IT UNNECESSARY
TO PASS UPON THE ACTIVITY'S ASSERTION THAT THESE INCUMBENTS SHOULD ALSO
BE EXCLUDED FROM THE RECOGNIZED BARGAINING UNIT ON THE BASIS THAT THEY
ARE MANAGEMENT OFFICIALS OR EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY CLERICAL CAPACITY. ACCORDINGLY, THESE JOB
CLASSIFICATIONS HAVE NOT BEEN LISTED IN APPENDIX A OR B.
/3/ SECTION 7103(A)(11) OF THE STATUTE DEFINES A "MANAGEMENT
OFFICIAL" AS:
. . . AN INDIVIDUAL EMPLOYED BY AN AGENCY IN A POSITION THE DUTIES
AND RESPONSIBILITIES OF
WHICH REQUIRE OR AUTHORIZE THE INDIVIDUAL TO FORMULATE, DETERMINE, OR
INFLUENCE THE POLICIES
OF THE AGENCY . . . .
/4/ BRIEFLY STATED, THE AUTHORITY HELD IN THIS CASE THAT SECTION
7112(B)(3) OF THE STATUTE APPLIES ONLY TO EMPLOYEES WHO PERFORM
"INTERNAL" PERSONNEL WORK, I.E., WORK RELATING DIRECTLY TO THE PERSONNEL
OPERATIONS OF THE AGENCY EMPLOYING THEM.
/5/ THE DECISION HEREIN, BASED ON RECORD TESTIMONY AS TO THE WORK
ACTUALLY PERFORMED BY THE INCUMBENTS, IS CLEARLY DISTINGUISHABLE FROM
OUR DECISION DISMISSING THE PETITION IN UNITED STATES DEPARTMENT OF
LABOR, OFFICE OF THE SOLICITOR, REGION III, 8 FLRA NO. 68(1982). IN
THAT CASE, IT WAS CLEAR THAT THE WORK IN QUESTION WOULD BE PERFORMED BY
THE EMPLOYEE INVOLVED AND THE RECORD CONTAINED NO EVIDENCE THAT THAT
FUNCTION WAS MERELY DE MINIMIS.
9 FLRA 135; FLRA 2-CU-25, 2-CU-26, 2-CU-27, 2-CU-28, 2-CU-30,
2-CU-31; AUGUST 16, 1982.
JOINT TACTICAL COMMUNICATIONS OFFICE (TRI-TAC)
ACTIVITY/PETITIONER
AND
CASE NO. 2-CU-25
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 476, INDEPENDENT /1/
LABOR ORGANIZATION
U.S. ARMY AVIATION RESEARCH AND DEVELOPMENT COMMAND
ACTIVITY/PETITIONER
AND
CASE NO. 2-CU-26 /2/
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 476, INDEPENDENT
LABOR ORGANIZATION
U.S. ARMY SATELLITE COMMUNICATIONS AGENCY
ACTIVITY/PETITIONER
AND
CASE NO. 2-CU-27 /3/
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 476, INDEPENDENT
LABOR ORGANIZATION
U.S. ARMY COMMUNICATIONS RESEARCH AND DEVELOPMENT
COMMAND
ACTIVITY/PETITIONER
AND
CASE NO. 2-CU-28 /4/
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 476, INDEPENDENT
LABOR ORGANIZATION
U.S. ARMY ELECTRONICS RESEARCH AND DEVELOPMENT
COMMAND
ACTIVITY/PETITIONER
AND
CASE NO. 2-CU-30 /5/
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 476, INDEPENDENT
LABOR ORGANIZATION
U.S. ARMY AVIATION RESEARCH AND DEVELOPMENT
COMMAND
ACTIVITY/PETITIONER
AND CASE NO. 2-CU-31 /6/
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 476, INDEPENDENT
LABOR ORGANIZATION
DECISION AND ORDER CLARIFYING UNIT
UPON PETITIONS DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
UNDER SECTION 7111(B)(2) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), A CONSOLIDATED HEARING WAS HELD BEFORE
A HEARING OFFICER OF THE AUTHORITY. THE HEARING OFFICER'S RULINGS MADE
AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR AND HEREBY AFFIRMED.
UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
PARTIES' CONTENTIONS, THE AUTHORITY FINDS: IN CASE NO. 2-CU-25, /7/ THE
ACTIVITY/PETITIONER SEEKS TO CLARIFY THE STATUS OF APPROXIMATELY 47
EMPLOYEES IN 39 JOB CLASSIFICATIONS WHO IT CONTENDS SHOULD BE EXCLUDED
FROM THE RECOGNIZED BARGAINING UNIT ON THE GROUNDS THAT THEY ARE
SUPERVISORS OR MANAGEMENT OFFICIALS. /8/
IN CASE NO. 2-CU-26, ACTIVITY/PETITIONER SEEKS TO CLARIFY THE STATUS
OF APPROXIMATELY 4 EMPLOYEES IN THE JOB CLASSIFICATION ELECTRONICS
ENGINEER, GS-855-13, 79-164,WHO IT CONTENDS SHOULD BE EXCLUDED FROM THE
BARGAINING UNIT ON THE GROUNDS THAT THEY ARE SUPERVISORS. /9/
SUPERVISORS /10/
IN CASE NO. 2-CU-25, WITH REGARD TO THE ONLY TWO SUPERVISORY JOB
CLASSIFICATIONS IN CONTENTION, THE AUTHORITY FINDS IN AGREEMENT WITH
NFFE THAT THE INCUMBENTS IN THE JOB CLASSIFICATIONS ELECTRONICS
ENGINEER, GS-855-14, 80-1091 AND COMMUNICATIONS MANAGEMENT SPECIALIST,
GS-391-14, 80-1090 ARE NOT SUPERVISORS WITHIN THE MEANING OF SECTION
7103(A)(10) OF THE STATUTE. THUS, THE RECORD ESTABLISHES THAT ALTHOUGH
THESE INCUMBENTS MAY HAVE SOME RESPONSIBILITY FOR ASSIGNING WORK TO
CERTAIN EMPLOYEES AND DIRECTING THEM IN THE PERFORMANCE OF THAT WORK,
SUCH FUNCTIONS ARE ROUTINE IN NATURE AND DO NOT REQUIRE THE CONSISTENT
EXERCISE OF INDEPENDENT JUDGMENT. NOR DO THE INCUMBENTS IN THESE
POSITIONS EXERCISE ANY OF THE OTHER STATUTORY INDICIA OF SUPERVISORY
AUTHORITY. ACCORDINGLY, THE AUTHORITY FINDS THAT THE INCUMBENTS IN
THESE JOB CLASSIFICATIONS SHOULD REMAIN IN THE BARGAINING UNIT.
IN CASE NO. 2-CU-26 THE AUTHORITY FINDS IN AGREEMENT WITH THE
ACTIVITY/PETITIONER THAT THE EMPLOYEES IN THE JOB CLASSIFICATION
ELECTRONICS ENGINEER, GS-855-13, 79-164 ASSIGN WORK TO THEIR
SUBORDINATES, AND HAVE EFFECTIVELY RECOMMENDED THE HIRING OF AND AWARDS
FOR SUBORDINATES. FURTHER, THE AUTHORITY FINDS THAT THE ABOVE DUTIES
ARE NOT MERELY ROUTINE OR CLERICAL IN NATURE, BUT REQUIRE THE CONSISTENT
EXERCISE OF INDEPENDENT JUDGMENT. ACCORDINGLY, THESE INCUMBENTS ARE
SUPERVISORS WITHIN THE MEANING OF SECTION 7103(A)(10) OF THE STATUTE AND
THEY SHALL BE ORDERED EXCLUDED FROM THE UNIT.
MANAGEMENT OFFICIALS /11/
THE AUTHORITY FINDS IN AGREEMENT WITH THE NFFE THAT THE INCUMBENTS IN
THE JOB CLASSIFICATIONS LISTED IN THE APPENDIX ARE NOT MANAGEMENT
OFFICIALS WITHIN THE MEANING OF SECTION 7103(A)(11) OF THE STATUTE AS
INTERPRETED BY THE AUTHORITY AND SHOULD REMAIN IN THE RECOGNIZED
BARGAINING UNIT. IN THE LEAD CASE OF DEPARTMENT OF THE NAVY, AUTOMATIC
DATA PROCESSING SELECTION OFFICE, 7 FLRA NO. 24(1981), THE AUTHORITY
INTERPRETED THE STATUTORY DEFINITION OF "MANAGEMENT OFFICIAL" TO INCLUDE
THOSE INDIVIDUALS WHO: (1) CREATE, ESTABLISH OR PRESCRIBE GENERAL
PRINCIPLE, PLANS, OR COURSES OF ACTION FOR AN AGENCY; (2) DECIDE UPON
OR SETTLE UPON GENERAL PRINCIPLES, PLANS OR COURSES OF ACTION FOR AN
AGENCY; OR (3) BRING ABOUT OR OBTAIN A RESULT AS TO THE ADOPTION OF
GENERAL PRINCIPLES, PLANS OR COURSES OF ACTION FOR AN AGENCY. APPLYING
THESE CRITERIA TO THE INSTANT CASE, THE AUTHORITY FINDS THAT THE
INCUMBENTS IN THE JOB CLASSIFICATIONS LISTED IN THE APPENDIX ARE
PROFESSIONALS WHOSE ACTIONS ASSIST IN IMPLEMENTING, AS OPPOSED TO
SHAPING, THE ACTIVITY'S POLICIES. THUS, THE RECORD IS CLEAR THAT THESE
INCUMBENTS ARE NOT MANAGEMENT OFFICIALS IN THAT THEY DO NOT EXERCISE ANY
DUTIES AND RESPONSIBILITIES WHICH REQUIRE OR AUTHORIZE THEM TO
FORMULATE, DETERMINE, OR INFLUENCE THE POLICIES OF THE ACTIVITY WITHIN
THE MEANING OF SECTION 7103(A)(11) OF THE STATUTE AS INTERPRETED BY THE
AUTHORITY. ACCORDINGLY, THE AUTHORITY FINDS THAT THE INCUMBENTS IN THE
JOB CLASSIFICATIONS LISTED IN THE APPENDIX SHOULD REMAIN IN THE
BARGAINING UNIT.
ORDER
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED IN CASE
2-CU-26 BE, AND IT HEREBY IS, CLARIFIED BY EXCLUDING FROM SAID UNIT THE
JOB CLASSIFICATION OF ELECTRONICS ENGINEER, GS-855-13, 79-164.
IT IS FURTHER ORDERED THAT, THE PETITIONS IN CASE NOS. 2-CU-25,
2-CU-27, 2-CU-28, AND 2-CU-30 BE AND THEY HEREBY ARE, DISMISSED.
ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
JOB CLASSIFICATIONS OF INCUMBENTS ALLEGED TO BE MANAGEMENT
OFFICIALS
PROCUREMENT ANALYST, GS-1102-14, 76-869
COMMUNICATIONS MANAGEMENT SPECIALIST, GS-391-14, 80-1089
COMMUNICATIONS MANAGEMENT SPECIALIST, GS-391-13, 80-1088
ELECTRONICS ENGINEER, GS-855-14, 72-83
ELECTRONICS ENGINEER, GS-855-14, 80-1068
ELECTRONICS ENGINEER, GS-855-14, 80-1067
ELECTRONICS ENGINEER, GS-855-13, 80-1072
ELECTRONICS ENGINEER, GS-855-14, 80-1066
ELECTRONICS ENGINEER, GS-855-13, 80-1073
MECHANICAL ENGINEER, GS-830-13, 80-1074
CONFIGURATION MANAGEMENT OFFICER, GS-301-13, 76-871
CONFIGURATION MANAGEMENT OFFICER, GS-301-13, 79-72
DATA MANAGEMENT SPECIALIST, GS-301-13, 74-17
LOGISTICS MANAGEMENT SPECIALIST, GS-346-13, 77-154
LOGISTICS MANAGEMENT SPECIALIST, GS-346-13, 78-263
ELECTRONICS ENGINEER, GS-855-14, 75-110
ELECTRONICS ENGINEER, GS-855-15, 74-120
ELECTRONICS ENGINEER, GS-855-14, 78-364
ELECTRONICS ENGINEER, GS-855-14, 72-51
ELECTRONICS ENGINEER, GS-855-14, 78-369
ELECTRONICS ENGINEER, GS-855-14, 72-64
ELECTRONICS ENGINEER, GS-855-14, 72-62
ELECTRONICS ENGINEER, GS-855-14, 72-61
ELECTRONICS ENGINEER, GS-855-13, 72-65
ELECTRONICS ENGINEER, GS-855-14, 72-40
ELECTRONICS ENGINEER, GS-855-14, 74-234
ELECTRONICS ENGINEER, GS-855-14, 80-1002
ELECTRONICS ENGINEER, GS-855-13, 72-43
ELECTRONICS ENGINEER, GS-855-14, 72-46
MECHANICAL ENGINEER, GS-830-14, 72-49
ELECTRONICS ENGINEER, GS-855-14, 80-1003
ELECTRONICS ENGINEER, GS-855-13, 77-1688
ELECTRONICS ENGINEER, GS-855-14, 72-36
ELECTRONICS ENGINEER, GS-855-14, 76-862
ELECTRONICS ENGINEER, GS-855-14, 76-563
ELECTRONICS ENGINEER, GS-855-13, 80-1004
ELECTRONICS ENGINEER, GS-855-14, 76-861
/1/ THE NAME OF THE LABOR ORGANIZATION APPEARS AS AMENDED AT THE
HEARING.
/2/ DURING THE COURSE OF THE HEARING, THE PETITIONER WITH THE
AGREEMENT OF THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 476,
INDEPENDENT AND THE HEARING OFFICER AMENDED ITS PETITION TO INCLUDE ONLY
THE ONE JOB CLASSIFICATION OF ELECTRONICS ENGINEER, GS-855-13, 79-164.
/3/ AT THE HEARING, IN CASE NO. 2-CU-27, THE PARTIES AGREED THAT THE
INCUMBENT IN THE SOLE JOB CLASSIFICATION IN CONTENTION, OPERATIONS
RESEARCH ANALYST, GS-1515-14, 74-2841, WAS A SUPERVISOR AND SHOULD BE
EXCLUDED FROM THE BARGAINING UNIT. WITH NO JOB CLASSIFICATIONS IN
DISPUTE, THE AUTHORITY SHALL ORDER THE PETITION IN CASE NO. 2-CU-27 BE
DISMISSED.
/4/ AT THE HEARING, IN CASE NO. 2-CU-28, THE PARTIES AGREED THAT THE
INCUMBENTS IN THE JOB CLASSIFICATIONS LEFT IN CONTENTION WERE
SUPERVISORS AND SHOULD BE EXCLUDED FROM THE BARGAINING UNIT. WITH NO
JOB CLASSIFICATIONS IN DISPUTE, THE AUTHORITY SHALL ORDER THE PETITION
IN CASE NO. 2-CU-28 BE DISMISSED.
/5/ AT THE HEARING, THE PARTIES AFTER NARROWING THE NUMBER OF JOB
CLASSIFICATIONS IN DISPUTE, STIPULATED THAT THE INCUMBENTS IN THE 35 JOB
CLASSIFICATIONS REMAINING WERE SUPERVISORS AND SHOULD BE EXCLUDED FROM
THE BARGAINING UNIT. WITH NO JOB CLASSIFICATIONS IN DISPUTE, THE
AUTHORITY SHALL ORDER THAT THE PETITION IN CASE NO. 3-CU-30 BE
DISMISSED.
/6/ AT THE HEARING IN CASE NO. 2-CU-31, THE PETITIONER MOVED TO
WITHDRAW ITS PETITION. PETITIONER'S UNOPPOSED MOTION IS HEREBY GRANTED.
/7/ THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 476,
INDEPENDENT (NFFE) WAS RECOGNIZED ON AUGUST 3, 1971, AS THE EXCLUSIVE
BARGAINING REPRESENTATIVE FOR A UNIT OF ALL PROFESSIONAL AND
NONPROFESSIONAL EMPLOYEES OF THE JOINT TACTICAL COMMUNICATIONS OFFICE
(TRI-TAC) 197 HANCE ROAD, NEW SHREWSBURY, NEW JERSEY.
/8/ AT THE HEARING THE PARTIES ENTERED INTO THE FOLLOWING
STIPULATIONS WHICH ARE DEEMED MOTIONS TO AMEND AND HEREBY GRANTED: (A)
INCUMBENTS IN JOB CLASSIFICATIONS ELECTRONICS ENGINEER, GS-855-15, 72-54
AND PROGRAM ANALYST, GS-345-14, 80-1086 ARE SUPERVISORS AND SHOULD BE
EXCLUDED FROM THE RECOGNIZED BARGAINING UNIT. (B) INCUMBENTS IN JOB
CLASSIFICATIONS OPERATIONS RESEARCH ANALYST GS-1515-14, 80-1001; BUDGET
ANALYST GS-560-13, 72-70; PROGRAM ANALYST GS-345-13, 80-1087; AND
COMPUTER SPECIALIST GS-334-13, 78-101 ARE NOT SUPERVISORS OR MANAGEMENT
OFFICIALS AND SHOULD REMAIN IN THE RECOGNIZED BARGAINING UNIT. (C) THAT
THE JOB CLASSIFICATIONS OF ELECTRONICS ENGINEER, GS-855-14, 80-1068;
ELECTRONICS ENGINEER, GS-855-14, 80-1067; ELECTRONICS ENGINEER,
GS-855-13, 80-1073; ELECTRONICS ENGINEER, GS-855-14, 72-40;
ELECTRONICS ENGINEER, GS-855-13, 72-43; ELECTRONICS ENGINEER,
GS-855-13, 77-1688 BE ADDED TO THOSE TO BE DECIDED BY THE AUTHORITY AS
THEY WERE FILLED SUBSEQUENT TO THE FILING DATE OF THE PETITION.
/9/ NFFE WAS CERTIFIED ON MARCH 30, 1978 AS THE EXCLUSIVE BARGAINING
REPRESENTATIVE FOR A UNIT OF ALL PROFESSIONAL EMPLOYEES OF AVRADCOM
ELEMENTS AT FORT MONMOUTH, NEW JERSEY INCLUDING FULL-TIME TEMPORARY
EMPLOYEES.
/10/ SECTIONS 7103(A)(10) OF THE STATUTE DEFINES "SUPERVISOR" AS:
. . . AN INDIVIDUAL EMPLOYED BY AN AGENCY HAVING AUTHORITY IN THE
INTEREST OF THE AGENCY TO
HIRE, DIRECT, ASSIGN, PROMOTE, REWARD, TRANSFER, FURLOUGH, LAYOFF,
RECALL, SUSPEND,
DISCIPLINE, OR REMOVE, EMPLOYEES TO ADJUST THEIR GRIEVANCES, OR TO
EFFECTIVELY RECOMMEND SUCH
ACTION, IF THE EXERCISE OF THE AUTHORITY IS NOT MERELY ROUTINE OR
CLERICAL IN NATURE BUT
REQUIRES THE CONSISTENT EXERCISE OF INDEPENDENT JUDGMENT . . . /11/
SECTION 7103(A)(11) OF
THE STATUTE DEFINES "MANAGEMENT
OFFICIAL" AS: . . . AN INDIVIDUAL EMPLOYED BY AN AGENCY IN A
POSITION THE DUTIES AND
RESPONSIBILITIES OF WHICH REQUIRE OR AUTHORIZE THE INDIVIDUAL TO
FORMULATE, DETERMINE, OR
INFLUENCE THE POLICIES OF THE AGENCY . . .
9 FLRA 134; FLRA 6-CA-237; AUGUST 16, 1982.
UNITED STATES DEPARTMENT
OF THE TREASURY, UNITED
STATES CUSTOMS SERVICE,
REGION V
RESPONDENT
AND
NATIONAL TREASURY EMPLOYEES
UNION AND NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 168
CHARGING PARTY
CASE NO. 6-CA-237
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED 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. /1/ THEREAFTER, THE
GENERAL COUNSEL AND THE CHARGING PARTY FILED EXCEPTIONS TO THE JUDGE'S
DECISION. /2/
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. /3/ UPON CONSIDERATION OF
THE JUDGE'S DECISION AND THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY
HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, AS
MODIFIED HEREIN.
THE GENERAL COUNSEL ALLEGES IN THE COMPLAINT THAT THE RESPONDENT
VIOLATED SECTION 7116(A)(1) OF THE STATUTE WHEN ITS REPRESENTATIVE
CONDUCTED INTERVIEWS WITH BARGAINING UNIT EMPLOYEES WHICH, IT IS
CONTENDED, CONSTITUTED "COERCIVE INTERROGATION." ADDITIONALLY, THE
GENERAL COUNSEL ALLEGES THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1),
(5) AND (8) OF THE STATUTE WHEN IT FAILED TO AFFORD THE NATIONAL
TREASURY EMPLOYEES UNION (NTEU) THE OPPORTUNITY TO BE REPRESENTED AT THE
INTERVIEWS WHICH, IT IS CONTENDED, WERE FORMAL DISCUSSIONS WITHIN THE
MEANING OF SECTION 7114(A)(2)(A) OF THE STATUTE. /4/ LASTLY, THE
GENERAL COUNSEL ALLEGES THAT THE "COERCIVE INTERROGATION" INTERFERED
WITH AN UNFAIR LABOR PRACTICE PROCEEDING IN VIOLATION OF SECTION
7116(A)(8) OF THE STATUTE.
IN AGREEMENT WITH THE JUDGE AND BASED ON THE ENTIRE RECORD, INCLUDING
THE JUDGE'S CREDIBILITY FINDINGS, THE AUTHORITY FINDS THAT THE
INTERVIEWS CONDUCTED BY THE RESPONDENT'S REPRESENTATIVE WERE
NON-COERCIVE IN NATURE AND, HENCE, DID NOT OTHERWISE VIOLATE THE
PROTECTED RIGHTS OF EMPLOYEES. MOREOVER, BASED ON THE ENTIRE RECORD,
INCLUDING THE JUDGE'S CREDIBILITY FINDINGS, AND FOR THE REASONS
EXPRESSED IN INTERNAL REVENUE SERVICE AND BROOKHAVEN SERVICE CENTER, 9
FLRA NO. 132(1982), THE AUTHORITY FINDS THAT THE RESPONDENT DID NOT
VIOLATE SECTION 7116(A)(1), (5) OR (8) OF THE STATUTE BY NOT AFFORDING
NTEU THE OPPORTUNITY TO BE PRESENT AT THE INTERVIEWS BETWEEN THE
RESPONDENT'S REPRESENTATIVE AND BARGAINING UNIT EMPLOYEES. IT FOLLOWS,
PERFORCE, THAT THE RESPONDENT CANNOT BE FOUND TO HAVE INTERFERED WITH AN
UNFAIR LABOR PRACTICE PROCEEDING. THE COMPLAINT SHALL, THEREFORE, BE
DISMISSED IN ITS ENTIRETY. /5/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT BE, AND IT HEREBY IS,
DISMISSED.
ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
GARY B. LANDSMAN, ESQUIRE
FOR THE RESPONDENT
ALVARO GARZA, ESQUIRE
FOR THE GENERAL COUNSEL
B. CRAIG DEATS, ESQUIRE
FOR THE CHARGING PARTY
BEFORE: RANDOLPH D. MASON
ADMINISTRATIVE LAW JUDGE
DECISION
THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ., AS A RESULT OF
AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON AUGUST 12, 1980, BY THE
REGIONAL DIRECTOR, REGION VI, FEDERAL LABOR RELATIONS AUTHORITY, DALLAS,
TEXAS, AGAINST THE UNITED STATES CUSTOMS SERVICE, REGION V
("RESPONDENT").
THE COMPLAINT RAISES TWO PRINCIPAL ISSUES RELATING TO CERTAIN
INTERVIEWS CONDUCTED BY AN ATTORNEY FOR RESPONDENT WITH UNIT EMPLOYEES
WHO WERE PROSPECTIVE WITNESSES FOR AN UPCOMING UNFAIR LABOR PRACTICE
HEARING: (1) DID THE INTERVIEWS CONSTITUTE "COERCIVE INTERROGATION" IN
VIOLATION OF SEC. 7116(A)(1) OF THE STATUTE, AND (2) WERE THE INTERVIEWS
"FORMAL DISCUSSIONS" CONCERNING "GENERAL CONDITIONS OF EMPLOYMENT"
WITHIN THE MEANING OF SEC. 7114(A)(2)(A) WHICH REQUIRED THAT THE UNION
BE GIVEN AN OPPORTUNITY TO BE REPRESENTED? SINCE THE UNION WAS NOT
GIVEN THIS OPPORTUNITY, THE COMPLAINT ALLEGES VIOLATIONS OF SECTIONS
7116(A)(1), (5) AND (8) WITH RESPECT TO THE SECOND ISSUE. THE GENERAL
COUNSEL SEPARATELY ALLEGES A VIOLATION OF SEC. 7116(A)(8) ON THE GROUND
THAT THE ALLEGED COERCIVE INTERROGATION VIOLATED SEC. 7118 BY
INTERFERING WITH AN UNFAIR LABOR PRACTICE PROCEEDING. RESPONDENT DENIES
ALL THESE ALLEGATIONS, ARGUING THAT THE INTERVIEWS WERE NOT COERCIVE IN
NATURE AND THAT THEY DID NOT CONSTITUTE SEC. 7114(A)(2)(A) DISCUSSIONS.
THE OFFICE OF PERSONNEL MANAGEMENT WAS PERMITTED TO FILE A BRIEF ON THE
SEC. 7114(A)(2)(A) ISSUE AS AN AMICUS CURIAE; OPM SIDED WITH THE
RESPONDENT IN ALL MATERIAL RESPECTS.
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED AT NEW
ORLEANS, LOUISIANA ON OCTOBER 15, 1980. ALL PARTIES WERE REPRESENTED BY
COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT
EVIDENCE, AND EXAMINE AND CROSS-EXAMINE WITNESSES. THE PARTIES FILED
BRIEFS WHICH HAVE BEEN DULY CONSIDERED. /6/ BASED ON THE ENTIRE RECORD
HEREIN, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR,
THE EXHIBITS, STIPULATIONS, /7/ AND OTHER RELEVANT EVIDENCE ADDUCED AT
THE HEARING, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW,
AND RECOMMENDED ORDER:
FINDINGS OF FACT
AT ALL TIMES MATERIAL HEREIN, THE NATIONAL TREASURY EMPLOYEES UNION
AND NTEU CHAPTER 168 ("THE UNION") HAS BEEN THE EXCLUSIVE REPRESENTATIVE
OF AN APPROPRIATE UNIT OF EMPLOYEES OF THE RESPONDENT U.S. CUSTOMS
SERVICE, REGION V. RESPONDENT AND THE UNION ARE PARTIES TO A COLLECTIVE
BARGAINING AGREEMENT COVERING ALL MATERIAL PERIODS.
PRIOR TO THE CHARGES UNDERLYING THE INSTANT CASE, THE UNION FILED
FOUR UNFAIR LABOR PRACTICE COMPLAINTS IN 1978 UNDER EXECUTIVE ORDER
11491 AGAINST THE RESPONDENT AGENCY. THE 1978 COMPLAINTS ALLEGED THAT
THE AGENCY HAD COMMITTED UNFAIR LABOR PRACTICES AT ITS AIR SUPPORT
BRANCH (ASB) IN BELLE CHASSE, LOUISIANA. ON MAY 7, 1979, THE REGIONAL
DIRECTOR, FLRA, REGION VI, ISSUED A NOTICE OF HEARING AND ORDER
CONSOLIDATING CASES SETTING A HEARING TO COMMENCE ON JUNE 26, 1979, IN
THE FOUR EXECUTIVE ORDER CASES. AT THE HEARING, RESPONDENT WAS
REPRESENTED BY ELIZABETH BRIGMAN, ESQ., AN ASSOCIATE REGIONAL COUNSEL
FOR THE AGENCY IN ITS NEW ORLEANS OFFICE. THE FINAL DECISION OF THE
AUTHORITY WAS ISSUED ON SEPTEMBER 29, 1980. UNITED STATES CUSTOMS
SERVICE, REGION V, NEW ORLEANS, LOUISIANA, 4 FLRA NO. 42(1980). THE
AUTHORITY FOUND, IN PART, THAT RESPONDENT HAD UNILATERALLY CHANGED THE
ESTABLISHED PAST PRACTICE OF PILOTS REPORTING AIRCRAFT DISCREPANCIES TO
MECHANICS, AND ORDERED RESPONDENT TO RETURN TO THE STATUS QUO ANTE ON
THIS ISSUE. THE REMAINING ISSUES, ALSO INVOLVING ALLEGED UNILATERAL
CHANGES IN WORKING CONDITIONS, WERE DECIDED IN RESPONDENT'S FAVOR.
IN PREPARING RESPONDENT'S DEFENSE PRIOR TO THE HEARING IN THE
EXECUTIVE ORDER CASES, ATTORNEY ELIZABETH BRIGMAN DECIDED TO INTERVIEW
SOME OF THE UNIT EMPLOYEES AT THE AIR SUPPORT BRANCH FACILITY IN BELLE
CHASSE, LOUISIANA. PRIOR TO DOING SO, HOWEVER, SHE DID SOME LEGAL
RESEARCH AND CHECKED WITH HER NATIONAL OFFICE TO ASCERTAIN THE PROPER
PROCEDURE FOR CONDUCTING SUCH INTERVIEWS. IT WAS DECIDED THAT AT EACH
EMPLOYEE'S INTERVIEW SHE WOULD COMPLY WITH THE SAFEGUARDS SET FORTH IN
THE CASE OF JOHNNIE'S POULTRY CO., 146 NLRB 770, 55 LRRM 1403, FOR THE
PURPOSE OF ELIMINATING THE POSSIBILITY OF COERCIVE INTERROGATION. THAT
CASE ALLOWS AN EMPLOYER TO QUESTION UNIT EMPLOYEES TO ASCERTAIN THE
NECESSARY FACTS FOR A ULP HEARING IF THE EMPLOYER FIRST:
(1) COMMUNICATES TO THE EMPLOYEE THE PURPOSE OF THE QUESTIONING,
(2) ASSURES HIM THAT NO REPRISAL WILL TAKE PLACE, AND
(3) OBTAINS HIS PARTICIPATION ON A VOLUNTARY BASIS; AND, IN
ADDITION,
(4) THE QUESTIONING MUST OCCUR IN A CONTEXT FREE FROM EMPLOYER
HOSTILITY TO UNION
ORGANIZATION AND MUST NOT BE ITSELF COERCIVE IN NATURE; AND
(5) THE QUESTIONS MUST NOT EXCEED THE NECESSITIES OF THE LEGITIMATE
PURPOSE BY PRYING INTO
OTHER UNION MATTERS, ELICITING INFORMATION CONCERNING AN EMPLOYEE'S
SUBJECTIVE STATE OF MIND,
OR OTHERWISE INTERFERING WITH THE STATUTORY RIGHTS OF EMPLOYEES.
PRIOR TO CONDUCTING ANY INTERVIEWS, ATTORNEY ELIZABETH BRIGMAN
STUDIED THE ABOVE SAFEGUARDS AND COMMITTED THEM TO MEMORY. SHE ALSO
TOOK A WRITTEN LIST OF THE SAFEGUARDS TO THE SUBSEQUENT INTERVIEWS.
THEN ON JUNE 11 AND 12, 1979, BRIGMAN WENT TO THE AIR SUPPORT BRANCH IN
BELLE CHASSE AND CONDUCTED INTERVIEWS WITH THREE INDIVIDUAL UNIT
EMPLOYEES. SHE DID NOT KNOW WHETHER THE UNION INTENDED TO CALL THESE
EMPLOYEES AS WITNESSES. THE INTERVIEWS WERE CONDUCTED DURING WORKING
HOURS IN A SUPERVISOR'S OFFICE. THE INTERVIEWS WERE NOT SCHEDULED IN
ADVANCE AND NO EMPLOYEE WAS ORDERED TO SUBMIT TO THE INTERVIEW. AT EACH
INTERVIEW ONLY BRIGMAN AND THE INDIVIDUAL EMPLOYEE WERE PRESENT. THE
UNION WAS NOT NOTIFIED IN ADVANCE THAT THE THREE INTERVIEWS WERE GOING
TO OCCUR, AND WAS NOT OTHERWISE GIVEN AN OPPORTUNITY TO ATTEND.
AT THE OUTSET OF EACH OF THE ABOVE INTERVIEWS, ELIZABETH BRIGMAN TOLD
THE EMPLOYEE THAT SHE WAS CONDUCTING A FACTFINDING INVESTIGATION ON
RESPONDENT'S BEHALF IN PREPARATION FOR THE UPCOMING UNFAIR LABOR
PRACTICE HEARING. SHE TOLD THEM THAT THEY DID NOT HAVE TO TALK TO HER
IF THEY DID NOT WANT TO, AND, IF THEY CHOSE TO TALK, THEY COULD ALSO
REFRAIN FROM ANSWERING ANY PARTICULAR QUESTIONS IF THEY DID NOT WANT TO
ANSWER THEM. SHE MADE IT CLEAR TO THEM THAT IT WAS STRICTLY VOLUNTARY
AND THAT THERE WOULD BE NO REPRISALS AGAINST THEM IF THEY CHOSE NOT TO
ANSWER THE QUESTIONS. THESE STATEMENTS WERE MADE FROM MEMORY. AFTER
SHE CONCLUDED GIVING THE ABOVE "JOHNNIE'S POULTRY ASSURANCES," EACH
EMPLOYEE INDICATED THAT HE UNDERSTOOD WHAT HAD BEEN SAID.
THE JUNE 11 INTERVIEW WAS CONDUCTED WITH PILOT MEEK KIKER. AT THE
HEARING OF THE INSTANT CASE, THE LATTER TESTIFIED CREDIBLY THAT THE
ABOVE ASSURANCES WERE GIVEN TO HIM AT HIS INTERVIEW WITH BRIGMAN. AFTER
KIKER AGREED TO SUBMIT TO THE INTERVIEW, THE ATTORNEY CONFINED HER
QUESTIONS TO THE FACTS OF THE UPCOMING UNFAIR LABOR PRACTICE HEARING.
THE INTERVIEW LASTED ABOUT 20-30 MINUTES. AT THE 1979 EXECUTIVE ORDER
HEARING, KIKER TESTIFIED ON BEHALF OF THE RESPONDENT, EVEN THOUGH HE WAS
A MEMBER OF THE UNION.
ON JUNE 12 BRIGMAN INTERVIEWED PILOTS TERRY WHITE AND WALTER
CHANDLER. WHILE SHE WAS GIVING WHITE THE "ASSURANCES," HE ASKED "DO YOU
THINK I NEED MY UNION REPRESENTATIVE?" SHE TOLD HIM THAT SHE DID NOT
THINK THAT HE NEEDED A REPRESENTATIVE, AND THAT THIS WAS NOT THE KIND OF
INTERVIEW REQUIRING THE PRESENCE OF THE UNION. SHE FURTHER STATED THAT
SHE PREVIOUSLY HAD CHECKED THIS QUESTION WITH HER SUPERVISOR AND HAD
BEEN TOLD THAT THE UNION HAD NO RIGHT TO ATTEND SUCH A MEETING. WHITE
SAID "OKAY" AND DIDN'T MENTION THE MATTER AGAIN. BRIGMAN THEN FINISHED
GIVING WHITE THE "ASSURANCES." WHITE INDICATED THAT HE UNDERSTOOD AND
VOLUNTARILY SUBMITTED TO THE INTERVIEW, WHICH WAS CONFINED THEREAFTER TO
THE FACTS OF THE UNFAIR LABOR PRACTICE CASES. WHITE'S INTERVIEW LASTED
ABOUT 20 MINUTES.
WHEN WHITE LEFT HIS INTERVIEW, HE TOLD CHANDLER THAT MS. BRIGMAN
WISHED TO SPEAK WITH HIM. WHITE WAS APPARENTLY HAVING SECOND THOUGHTS
ABOUT WHETHER THE UNION HAD A RIGHT TO ATTEND THE MEETINGS, BECAUSE HE
MENTIONED THE MATTER TO CHANDLER JUST BEFORE THE LATTER ENTERED HIS
INTERVIEW. CONSEQUENTLY, WHEN BRIGMAN WAS GIVING CHANDLER THE
"ASSURANCES," HE ASKED HER IF SHE WAS SURE THE UNION DID NOT HAVE A
RIGHT TO ATTEND. SHE TOLD HIM THE SAME THING SHE TOLD WHITE, I.E., THAT
IT WAS HER SUPERVISOR'S OPINION THAT THE UNION HAD NO SUCH RIGHT. SHE
THEN FINISHED ASSURING CHANDLER THAT NO REPRISALS WOULD OCCUR REGARDLESS
OF WHETHER HE PARTICIPATED OR NOT AND OBTAINED HIS VOLUNTARY COOPERATION
TO PARTICIPATE IN THE ENSUING 5 MINUTE INTERVIEW. AS IN THE PRECEDING
INTERVIEWS, ALL QUESTIONS PERTAINED TO THE ESSENTIAL FACTS OF THE UNFAIR
LABOR PRACTICE ISSUES AND DID NOT EXCEED THE NECESSITIES OF THIS
LEGITIMATE PURPOSE.
IN ALL THREE OF THE ABOVE INTERVIEWS BRIGMAN MADE SURE THAT SHE "GOT
EVERYTHING IN" THAT WAS REQUIRED BY THE NLRB IN THE JOHNNIE'S POULTRY
CASE. SHE ALSO WAS CAREFUL TO CREATE A CORDIAL, NON-COERCIVE
ATMOSPHERE. ALL THREE EMPLOYEES WERE VERY COOPERATIVE AND HELPFUL IN
ANSWERING HER QUESTIONS, AND EXPLORED MANY FACT SITUATIONS IN DETAIL.
BRIGMAN TOOK NOTES DURING THE INTERVIEWS.
SUBSEQUENT TO THE ABOVE MEETINGS, THE UNION STEWARD OBJECTED TO THE
CONTINUATION OF SUCH INTERVIEWS UNLESS THE UNION WAS GIVEN THE
OPPORTUNITY TO ATTEND. NO FURTHER INTERVIEWS WERE CONDUCTED.
AT THE 1979 HEARING IN THE EXECUTIVE ORDER CASES, WHITE AND CHANDLER
TESTIFIED FOR THE UNION. WHEN BRIGMAN CROSS-EXAMINED THEM, SHE BROUGHT
OUT POINTS IN SUPPORT OF THE AGENCY'S CASE THAT SHE HAD LEARNED IN THE
INTERVIEWS. KIKER WAS CALLED AS A WITNESS FOR THE AGENCY.
CONCLUSIONS OF LAW
THE COERCIVE INTERROGATION ISSUE
THE FIRST ISSUE PRESENTED FOR CONSIDERATION IS WHETHER THE RESPONDENT
AGENCY'S ATTORNEY CONDUCTED COERCIVE INTERROGATIONS OF BARGAINING UNIT
EMPLOYEES IN PREPARATION FOR AN UNFAIR LABOR PRACTICE HEARING. A
COERCIVE INTERVIEW OF A BARGAINING UNIT EMPLOYEE BY AGENCY
REPRESENTATIVES IN PREPARATION FOR AN UNFAIR LABOR PRACTICE HEARING HAS
LONG BEEN PROHIBITED IN THE PRIVATE SECTOR BECAUSE IT INHIBITS THE
EMPLOYEE IN THE EXERCISE OF HIS PROTECTED RIGHTS UNDER SEC. 7 OF THE
LABOR MANAGEMENT RELATIONS ACT, 29 U.S.C. 157. JOY SILK MILLS, INC. V.
N.L.R.B., 185 F.2D 732(D.C. CIR. 1950), 27 LRRM 2012. OVER THE YEARS,
THE NATIONAL LABOR RELATIONS BOARD AND THE COURTS HAVE ATTEMPTED TO
DEVELOP A STANDARD OF EMPLOYER CONDUCT FOR PRE-HEARING INTERVIEWS OF
PROSPECTIVE EMPLOYEE WITNESSES WHICH STRIKES "A DELICATE BALANCE BETWEEN
THE LEGITIMATE INTEREST OF THE EMPLOYER IN PREPARING ITS CASE FOR TRIAL,
AND THE INTEREST OF THE EMPLOYEE IN BEING FREE FROM UNWARRANTED
INTERROGATION." TEXAS INDUSTRIES, INC. V. N.L.R.B., 336 F.2D 128, 133
(5TH CIR. 1964), 57 LRRM 2046. THE INTERROGATION RULES FOLLOWED BY THE
BOARD ARE SET FORTH IN THE WELL-KNOWN CASE OF JOHNNIE'S POULTRY, INC.,
146 NLRB 770, 55 LRRM 1403(1964), ENFORCEMENT DENIED, /8/ 344 F2D
617(8TH CIR. 1965), 59 LRRM 2117. JOHNNIE'S POULTRY PROVIDES THAT THE
FOLLOWING SAFEGUARDS MUST BE OBSERVED TO MINIMIZE THE COERCIVE IMPACT OF
EMPLOYER INTERROGATION IN THESE CIRCUMSTANCES:
(T)HE EMPLOYER MUST COMMUNICATE TO THE EMPLOYEE THE PURPOSE OF THE
QUESTIONING, ASSURE HIM
THAT NO REPRISAL WILL TAKE PLACE, AND OBTAIN HIS PARTICIPATION ON A
VOLUNTARY BASIS; THE
QUESTIONING MUST OCCUR IN A CONTEXT FREE FROM EMPLOYER HOSTILITY TO
UNION ORGANIZATION AND
MUST NOT EXCEED THE NECESSITIES OF THE LEGITIMATE PURPOSE BY PRYING
INTO OTHER UNION MATTERS,
ELICITING INFORMATION CONCERNING AN EMPLOYEE'S SUBJECTIVE STATE OF
MIND, OR OTHERWISE
INTERFERING WITH THE STATUTORY RIGHTS OF EMPLOYEES.
146 NLRB AT 775.
IT IS THE BOARD'S POSITION THAT FAILURE TO ADHERE STRICTLY TO THE
RULES SET FORTH IN JOHNNIE'S POULTRY CONSTITUTES A PER SE VIOLATION OF
SEC. 8(A)(1) OF THE LABOR MANAGEMENT RELATIONS ACT, 29 U.S.C. 158(A)(1).
HOWEVER, THAT POSITION HAS NOT BEEN ADOPTED BY SEVERAL CIRCUIT COURTS
OF APPEALS WHICH HAVE TENDED TO IGNORE TECHNICAL OMISSIONS AND LOOK TO
THE "TOTALITY OF THE CIRCUMSTANCES" WHEN DECIDING WHETHER COERCION IS
PRESENT. SEE DISCUSSION OF CASES IN A & R TRANSPORT, INC. V. N.L.R.B.,
601 F2D 311(7TH CIR. 1979), 101 LRRM 2856. DUE TO THE PARTICULAR
CIRCUMSTANCES OF THE INSTANT CASE, HOWEVER, IT WILL NOT BE NECESSARY TO
DECIDE WHETHER THE BOARD'S VIEW IS TOO RIGID A TEST FOR THE PUBLIC
SECTOR. THIS IS SO BECAUSE I HAVE FOUND, BASED UPON THE CREDIBLE
TESTIMONY OF THE AGENCY'S ATTORNEY, BETTY BRIGMAN, THAT SHE STRICTLY
OBSERVED THE JOHNNIE'S POULTRY SAFEGUARDS (THE MOST RIGID TEST) AND
CREATED A NON-COERCIVE ATMOSPHERE DURING EACH OF THE EMPLOYEE INTERVIEWS
IN QUESTION.
I WAS IMPRESSED WITH MS. BRIGMAN'S TESTIMONIAL DEMEANOR AND I AM
CONVINCED THAT SHE WAS TELLING THE TRUTH. /9/ SHE EXPLAINED HOW SHE HAD
RESEARCHED THE JOHNNIE'S POULTRY RULES, AND OBTAINED THE INSTRUCTION OF
HER NATIONAL OFFICE TO FOLLOW THOSE RULES, PRIOR TO CONDUCTING ANY
INTERVIEWS. SHE MADE NOTES AND MEMORIZED THE SAFEGUARDS. AT THE OUTSET
OF EACH INTERVIEW SHE TOLD THE EMPLOYEE THE PURPOSE OF HER QUESTIONING,
AND ASSURED HIM THAT NO REPRISAL WOULD TAKE PLACE, AND OBTAINED HIS
PARTICIPATION ON A VOLUNTARY BASIS. /10/ THE QUESTIONS WHICH FOLLOWED
PERTAINED STRICTLY TO THE ISSUES OF THE UNFAIR LABOR PRACTICE COMPLAINT
AND THE ATMOSPHERE WAS NON-COERCIVE. SHE DID NOT PRY INTO UNION
MATTERS, ELICIT INFORMATION CONCERNING THE EMPLOYEES' SUBJECTIVE STATE
OF MIND (MATTERS WITHOUT PROBATIVE VALUE), OR OTHERWISE INTERFERE WITH
THEIR PROTECTED RIGHTS UNDER THE STATUTE.
IN CONCLUSION, I HOLD THAT THE AGENCY ATTORNEY'S INTERVIEWS OF
PROSPECTIVE EMPLOYEE WITNESSES IN PREPARATION FOR AN UNFAIR LABOR
PRACTICE HEARING WERE NOT COERCIVE AND DID NOT OTHERWISE VIOLATE THE
PROTECTED RIGHTS OF THE EMPLOYEES. THEREFORE, I FIND NO VIOLATION OF
SEC. 7116(A)(1) OF THE STATUTE. IN ADDITION, SINCE THE QUESTIONING WAS
PROPER, IT DID NOT INTERFERE WITH THE UNFAIR LABOR PRACTICE PROCEEDING
AS CONTENDED BY THE GENERAL COUNSEL. /11/
THE "FORMAL DISCUSSION" ISSUE
THE NEXT ISSUE FOR CONSIDERATION IS WHETHER THE ABOVE INTERVIEWS OF
UNIT EMPLOYEES IN PREPARATION FOR AN UNFAIR LABOR PRACTICE HEARING
CONSTITUTED "FORMAL DISCUSSIONS" CONCERNING GENERAL CONDITIONS OF
EMPLOYMENT WITHIN THE PURVIEW OF SEC. 7114(A)(2)(A) OF THE STATUTE.
THAT SECTION PROVIDES THAT THE EXCLUSIVE REPRESENTATIVE SHALL BE GIVEN
AN OPPORTUNITY TO BE REPRESENTED AT SUCH FORMAL DISCUSSIONS. SINCE THE
UNION WAS NOT GIVEN THAT OPPORTUNITY IN THIS CASE, THE GENERAL COUNSEL
AND THE CHARGING PARTY CONTEND THAT RESPONDENT VIOLATED SECTIONS
7116(A)(1), (5), AND (8).
SECTION 7114(A)(2)(A) PROVIDES AS FOLLOWS:
(2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
SHALL BE GIVEN THE
OPPORTUNITY TO BE REPRESENTED AT--
(A) ANY FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE
AGENCY AND ONE OR MORE
EMPLOYEES IN THE UNIT OR THEIR REPRESENTATIVES CONCERNING ANY
GRIEVANCE OR ANY PERSONNEL
POLICY OR PRACTICES OR OTHER GENERAL CONDITION OF EMPLOYMENT.
THE LANGUAGE CONTAINED IN THIS STATUTE HAD ITS GENESIS IN THE THIRD
SENTENCE OF SEC. 10(E) OF EXECUTIVE ORDER 11491. IT IS CLEAR THAT,
UNDER THAT SENTENCE, TWO REQUIREMENTS HAD TO BE MET BEFORE THE UNION'S
RIGHT TO BE REPRESENTED AT MEETINGS BETWEEN MANAGEMENT AND BARGAINING
UNIT EMPLOYEES ATTACHED: (1) THE MEETING MUST HAVE BEEN A "FORMAL" ONE;
AND (2) THE MEETING MUST HAVE CONCERNED "GRIEVANCES, PERSONNEL POLICIES
AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT." NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
(NASA), WASHINGTON, D.C., FLRC NO. 74A-95, 3 FLRC 618(1975).
WHETHER A MEETING BETWEEN A BARGAINING UNIT EMPLOYEE AND AN AGENCY
REPRESENTATIVE WAS A "FORMAL DISCUSSION" AS THAT TERM WAS USED IN SEC.
10(E) OF THE ORDER WAS BASICALLY A FACTUAL DETERMINATION MADE BY
CONSIDERING MANY TYPES OF FACTORS SUCH AS "WHO CALLED THE MEETING AND
FOR WHAT PURPOSE; WHETHER WRITTEN NOTICE WAS GIVEN; WHERE THE MEETING
WAS HELD; WHO ATTENDED; WHETHER A RECORD OR NOTES OF THE MEETING WERE
KEPT; AND WHAT WAS ACTUALLY DISCUSSED." DEPARTMENT OF DEFENSE, U.S.
NAVY, NORFOLK NAVAL SHIPYARD, AND TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO, FLRC NO. 77A-141, 6 FLRC 1103(1978).
THERE CAN BE NO DOUBT THAT THE ASSISTANT SECRETARY WOULD HAVE
CONSIDERED THE EMPLOYEE INTERVIEWS IN QUESTION TO HAVE BEEN "FORMAL" IN
NATURE, THEREBY SATISFYING THE FIRST REQUIREMENT OF SEC. 10(E). IN
INTERNAL REVENUE SERVICE SOUTH CAROLINA DISTRICT, A/SLMR NO. 1172, 8
A/SLMR 1370(1978), HE HELD THAT THE INTERVIEW OF A UNIT EMPLOYEE WHO WAS
A POTENTIAL WITNESS IN AN UPCOMING ARBITRATION HEARING CONSTITUTED A
FORMAL DISCUSSION. SEE ALSO, UNITED STATES AIR FORCE, MCCLELLAN AIR
FORCE BASE, CALIFORNIA, A/SLMR NO. 830, 7 A/SLMR 350(1977), FLRC NO.
77A-56 (1977). THUS, IT WOULD APPEAR THAT THE INTERVIEWS OF POTENTIAL
WITNESSES FOR AN UNFAIR LABOR PRACTICE HEARING AS IN THE INSTANT CASE
WOULD BE CONSIDERED "FORMAL."
HOWEVER, THE ABOVE-CITED CASES ARE NOT DISPOSITIVE OF THE INSTANT
CASE SINCE SEC. 10(E) WAS HELD TO APPLY DUE TO THE FACT THAT THOSE
INTERVIEWS WERE CONDUCTED IN CONNECTION WITH THE PROCESSING OF PENDING
"GRIEVANCES." /12/ HERE, SINCE NO GRIEVANCE EXISTED, THE SECOND
REQUIREMENT OF SEC. 7114(A)(2)(A) AND ITS PREDECESSOR WILL NOT BE
SATISFIED UNLESS THE DISCUSSIONS CONCERNED A "GENERAL CONDITION OF
EMPLOYMENT." /13/ "CONDITIONS OF EMPLOYMENT" ARE DEFINED IN SEC.
7103(A)(14), IN PERTINENT PART, AS "MATTERS . . . AFFECTING WORKING
CONDITIONS." "AFFECTING" IS DEFINED AS "PRODUCING AN EFFECT OR CHANGE
IN" SOMETHING. RANDOM HOUSE COLLEGE DICTIONARY (1973 ED.).
THUS THE QUESTION BECOMES: DOES A PRE-HEARING EMPLOYEE INTERVIEW,
WHICH IS CONFINED TO ASCERTAINING THE FACTS IN PREPARATION OF THE
AGENCY'S DEFENSE OF AN UNFAIR LABOR PRACTICE COMPLAINT, CONCERN A MATTER
PRODUCING A CHANGE IN GENERAL WORKING CONDITIONS? CERTAINLY THERE IS NO
DIRECT CONNECTION BETWEEN THE ABOVE PROCESS OF GATHERING FACTS AND THE
ULTIMATE DISPOSITION OF THE COMPLAINT. IT IS, OF COURSE, POSSIBLE THAT
THE ULTIMATE DISPOSTION WILL RESULT IN PUTTING UNILATERALLY CHANGED
WORKING CONDITIONS BACK ON THE BARGAINING TABLE AND A RETURN TO THE
STATUS QUO ANTE. BUT THE CONNECTION BETWEEN THE INFORMATION ACQUIRED AT
MEETINGS LIKE THE ONES IN QUESTION AND THIS ULTIMATE RESULT IS TOO
TENUOUS. /14/ SECTION 7114(A)(2)(A) NECESSARILY ENCOMPASSES ONLY THOSE
MEETINGS IN WHICH THE UNION REPRESENTATIVE COULD BE EXPECTED TO PLAY A
MEANINGFUL AND USEFUL ROLE REGARDING CHANGES IN WORKING CONDITIONS. THE
FACT-FACTING SESSIONS IN ISSUE HEREIN DO NOT LEND THEMSELVES TO THIS
TYPE OF ROLE. THEREFORE, I HOLD THAT THESE INTERVIEWS DID NOT
CONSTITUTE "FORMAL DISCUSSION(S) . . . CONCERNING . . . GENERAL
CONDITION(S) OF EMPLOYMENT" SINCE THEY LACKED THE REQUISITE NEXUS TO
CHANGES IN WORKING CONDITIONS.
HOWEVER, THERE ARE FAR MORE IMPORTANT REASONS WHY THE INTERPRETATION
ADVANCED BY THE GENERAL COUNSEL AND THE CHARGING PARTY SHOULD NOT
PREVAIL. THEIR VIEW WOULD DEAL A SERIOUS BLOW TO THE ADVERSARY SYSTEM
OF JUSTICE IN THE FIELD OF PUBLIC SECTOR LABOR LAW. THE COLLECTIVE
BARGAINING RELATIONSHIP ENVISAGED BY THE STATUTE REQUIRES THAT EACH
PARTY HAVE THE ABILITY TO FUNCTION AS AN EQUAL PARTNER WITHIN THE
RELATIONSHIP. UNITED STATES AIR FORCE, AIR FORCE LOGISTICS COMMAND,
AEROSPACE GUIDANCE AND METROLOGY CENTER, NEWARK, OHIO, 4 FLRA NO.
70(1980). FURTHER, IT IS BASIC TO THE CONCEPT OF JUDICIAL FAIRNESS AND
ADMINISTRATIVE DUE PROCESS THAT THE PARTIES TO A LAWSUIT BE AFFORDED
EQUAL PROCEDURAL RIGHTS. THE GENERAL COUNSEL'S INTERPRETATION OF SEC.
7114(A)(2)(A) WOULD PUT THE PARTIES ON AN UNEQUAL FOOTING BY ALLOWING
ONE PARTY ALONE, THE UNION, A FORM OF DISCOVERY ENCOMPASSING NOT ONLY
THE FACTS ELICITED BY THE AGENCY ATTORNEY, TO THE EXTENT THEY ARISE
DURING THE INTERVIEW, BUT ALSO THE CONFIDENTIAL THEORIES AND STRATEGIES
OF THE AGENCY'S CASE IN DEFENSE OF THE UNFAIR LABOR PRACTICE COMPLAINT.
THE QUESTIONS ASKED BY THE ATTORNEY WOULD INEVITABLY REVEAL THE FACTUAL
TERRITORY ON WHICH THE AGENCY'S DEFENSES ARE BASED AND THEREBY GIVE THE
UNION AN UNFAIR ADVANTAGE AND VALUABLE INSIGHT INTO THE AGENCY'S CASE IN
ADVANCE OF THE HEARING. THIS WOULD BE EQUIVALENT TO PROVIDING THE UNION
WITH ITS OWN EXCLUSIVE PROCEDURAL RIGHT WHICH WOULD DIRECTLY CONFLICT
WITH THE FAIR, BALANCED PRETRIAL AND TRAIL PROCEDURES PROVIDED BY THE
AUTHORITY'S REGULATIONS. IN SHORT, THE GENERAL COUNSEL'S AND CHARGING
PARTY'S POSITION AMOUNTS TO UNJUSTIFIED TAMPERING WITH THE ADVERSARY
SYSTEM ITSELF, WHICH HAS PROVEN TO BE A WORKABLE MEANS OF SEEKING THE
TRUTH.
IN ADDITION, IT WOULD BE EQUALLY ABHORRENT TO THE ADVERSARY Y SYSTEM
OF JURISPRUDENCE TO ALLOW ANY PARTY (IN THIS CASE, THE UNION) TO INVADE
THE PRIVACY OF THE OPPOSING COUNSEL IN THE PREPARATION OF HIS CASE.
THIS PRINCIPLE WAS ENUNCIATED BY THE SUPREME COURT IN HICKMAN V. TAYLOR,
329 U.S. 495 AT 510(1947):
. . . HERE IS SIMPLY AN ATTEMPT, WITHOUT PURPORTED NECESSITY OR
JUSTIFICATION, TO SECURE
WRITTEN STATEMENTS, PRIVATE MEMORANDA AND PERSONAL RECOLLECTIONS
PREPARED OR FORMED BY AN
ADVERSE PARTY'S COUNSEL IN THE COURSE OF HIS LEGAL DUTIES. AS SUCH,
IT FALLS OUTSIDE THE
ARENA OF DISCOVERY AND CONTRAVENES THE PUBLIC POLICY UNDERLYING THE
ORDERLY PROSECUTION AND
DEFENSE OF LEGAL CLAIMS. NOT EVEN THE MOST LIBERAL OF DISCOVERY
THEORIES CAN JUSTIFY
UNWARRANTED INQUIRIES INTO THE FILES AND THE MENTAL IMPRESSIONS OF AN
ATTORNEY.
HISTORICALLY, A LAWYER IS AN OFFICER OF THE COURT AND IS BOUND TO
WORK FOR THE ADVANCEMENT
OF JUSTICE WHILE FAITHFULLY PROTECTING THE RIGHTFUL INTERESTS OF HIS
CLIENTS. IN PERFORMING
HIS VARIOUS DUTIES, HOWEVER, IT IS ESSENTIAL THAT A LAWYER WORK WITH
A CERTAIN DEGREE OF
PRIVACY, FREE FROM UNNECESSARY INTRUSION BY OPPOSING PARTIES AND
THEIR COUNSEL. PROPER
PREPARATION OF A CLIENT'S CASE DEMANDS THAT HE ASSEMBLE INFORMATION,
SIFT WHAT HE CONSIDERS TO
BE THE RELEVANT FROM THE IRRELEVANT FACTS, PREPARE HIS LEGAL THEORIES
AND PLAN HIS STRATEGY
WITHOUT UNDUE AND NEEDLESS INTERFERENCE. THAT IS THE HISTORICAL AND
THE NECESSARY WAY IN
WHICH LAWYERS ACT WITHIN THE FRAMEWORK OF OUR SYSTEM OF JURISPRUDENCE
TO PROMOTE JUSTICE AND
TO PROTECT THEIR CLIENT'S INTERESTS. THIS WORK IS REFLECTED, OF
COURSE, IN INTERVIEWS,
STATEMENTS, MEMORANDA, CORRESPONDENCE, BRIEFS, MENTAL IMPRESSIONS,
PERSONAL BELIEFS, AND
COUNTLESS OTHER TANGIBLE AND INTANGIBLE WAY-- APTLY THOUGH ROUGHLY
TERMED BY THE CIRCUIT COURT
OF APPEALS IN THIS CASE (153 F.2D 212, 223) AS THE "WORK PRODUCT OF
THE LAWYER." WERE SUCH
MATERIALS OPEN TO OPPOSING COUNSEL ON MERE DEMAND, MUCH OF WHAT IS
NOW PUT DOWN IN WRITING
WOULD REMAIN UNWRITTEN. AN ATTORNEY'S THOUGHTS, HERETOFORE
INVIOLATE, WOULD NOT BE HIS
OWN. INEFFICIENCY, UNFAIRNESS AND SHARP PRACTICES WOULD INEVITABLY
DEVELOP IN THE GIVING OF
LEGAL ADVICE AND IN THE PREPARATION OF CASES FOR TRIAL. THE EFFECT ON
THE LEGAL PROFESSION
WOULD BE DEMORALIZING. AND THE INTERESTS OF THE CLIENTS AND THE
CAUSE OF JUSTICE WOULD BE
POORLY SERVED.
THESE PRINCIPLES SHOULD NOT BE VIOLATED UNLESS EXCEPTIONAL
CIRCUMSTANCES ARE SHOWN. GOOD CAUSE HAS NOT BEEN SHOWN. OBVIOUSLY, IF
THE UNION WERE ALLOWED TO ATTEND INTERVIEWS SIMILAR TO THOSE IN QUESTION
IT WOULD BE AIDED IN THE PREPARATION OF ITS OWN CASE BY GATHERING
ADDITIONAL EVIDENCE. BUT THIS "NEED" IS MORE THAN OFFSET BY THE
UNWARRANTED INTRUSION INTO THE SUBTLETIES OF THE AGENCY'S DEFENSE.
ALSO, SINCE THE PURPOSE OF THE INTERVIEW INVOLVES A SEARCH FOR THE
TRUTH, THIS PURPOSE MIGHT SOMETIMES BE THWARTED. ALTHOUGH THE UNION
WOULD GENERALLY BE EXPECTED, IN THE INTEREST OF GOOD LABOR-MANAGEMENT
RELATIONS, TO PLAY A CONSTRUCTIVE ROLE IN ELICITING FACTS FROM THE
EMPLOYEE, IT IS UNFORTUNATELY FORESEEABLE THAT SOME UNION
REPRESENTATIVES MIGHT INSTRUCT THE EMPLOYEE TO REFRAIN FROM ANSWERING
CERTAIN LEGITIMATE QUESTIONS. ALSO, SOME EMPLOYEES MIGHT BE RELUCTANT
TO REVEAL FACTS WHICH ARE CONTRARY TO THE UNION'S POSITION IN THE
PRESENCE OF THE UNION REPRESENTATIVE. FINALLY, IT MIGHT BE ARGUED THAT
THE UNION'S PRESENCE WOULD HELP TO INSURE AGAINST COERCIVE
INTERROGATION. HOWEVER, THE EXPERIENCE IN THE PRIVATE SECTOR HAS SHOWN
THAT THE UNION'S PRESENCE IS NOT NECESSARY FOR THIS PURPOSE WHERE OTHER
APPROPRIATE SAFEGUARDS ARE FOLLOWED. SEE, E.G., JOHNNIE'S POULTRY,
SUPRA. THUS NO OVERRIDING NEED HAS BEEN SHOWN TO WARRANT AN INVASION OF
THE PRIVACY OF AN AGENCY ATTORNEY IN THE PREPARATION OF HIS OR HER CASE.
FINALLY, IT SHOULD BE NOTED THAT SEC. 7114(A)(2) CONSTITUTES FAR MORE
THAN A MERE CODIFICATION OF THE PRINCIPLES AND RIGHTS PROVIDED BY SEC.
10(E) OF THE EXECUTIVE ORDER. CONGRESS SPECIFICALLY CHANGED THE UNION'S
REPRESENTATION RIGHTS IN CERTAIN SITUATIONS. IN THE PROCESS OF
CONSTRUCTING THE LANGUAGE OF SEC. 7114(A)(2)(A) IT DID NOT CHOOSE TO
SPECIFICALLY EXPAND THE RIGHT TO BE REPRESENTED AT FORMAL DISCUSSIONS TO
THOSE CONCERNING UNFAIR LABOR PRACTICE COMPLAINTS. THE ONLY SIMILAR
PROCEDURES MENTIONED ARE "GRIEVANCES," AND AREA IN WHICH THE EXCLUSIVE
REPRESENTATIVE HAS A UNIQUE CONTRACTUAL RELATIONSHIP. IF CONGRESS HAD
INTENDED TO INCLUDE THE PRE-HEARING INTERVIEWS IN QUESTION WITHIN SEC.
7114(A)(2)(A) IT COULD EASILY HAVE DONE SO. /15/ FOR ALL OF THE
FOREGOING REASONS, I HOLD THAT THE MEETINGS IN ISSUE DO NOT FALL WITHIN
THE PURVIEW OF SEC. 7114(A)(2)(A) OF THE STATUTE. SINCE NO VIOLATIONS
OF SECTIONS 7116(A)(1), (5), AND (8) HAVE BEEN FOUND, I HEREBY RECOMMEND
THAT THE AUTHORITY ADOPT THE FOLLOWING:
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 6-CA-237 BE, AND
HEREBY IS, DISMISSED.
RANDOLPH D. MASON
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 20, 1981
WASHINGTON, D.C.
/1/ THE OFFICE OF PERSONNEL MANAGEMENT (OPM) WAS PERMITTED TO FILE A
BRIEF AMICUS CURIAE WITH THE JUDGE IN SUPPORT OF THE RESPONDENT'S
POSITION.
/2/ ADDITIONALLY, PURSUANT TO SECTION 2429.26 OF THE AUTHORITY'S
RULES AND REGULATIONS, THE CHARGING PARTY WAS GRANTED PERMISSION TO FILE
A SUPPLEMENTAL BRIEF AND THE RESPONDENT FILED A RESPONSE THERETO.
/3/ THE CHARGING PARTY EXCEPTED TO CERTAIN CREDIBILITY FINDINGS MADE
BY THE JUDGE. THE DEMEANOR OF WITNESSES IS A FACTOR OF CONSEQUENCE IN
RESOLVING ISSUES OF CREDIBILITY, AND THE JUDGE HAS HAD THE ADVANTAGE OF
OBSERVING THE WITNESSES WHILE THEY TESTIFIED. THE AUTHORITY WILL NOT
OVERRULE A JUDGE'S RESOLUTION WITH RESPECT TO CREDIBILITY UNLESS A CLEAR
PREPONDERANCE OF ALL THE RELEVANT EVIDENCE DEMONSTRATES SUCH RESOLUTION
WAS INCORRECT. THE AUTHORITY HAS EXAMINED THE RECORD CAREFULLY AND
FINDS NO BASIS FOR REVERSING THE JUDGE'S CREDIBILITY FINDINGS.
/4/ SECTION 7114(A)(2)(A) PROVIDES THAT:
(2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
SHALL BE GIVEN THE
OPPORTUNITY TO BE REPRESENTED AT-
(A) ANY FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE
AGENCY AND ONE OR MORE
EMPLOYEES IN THE UNIT OR THEIR REPRESENTATIVES CONCERNING ANY
GRIEVANCE OR ANY PERSONNEL
POLICY OR PRACTICES OR OTHER GENERAL CONDITION OF EMPLOYMENT(.)
/5/ IN SO CONCLUDING, THE AUTHORITY FINDS IT UNNECESSARY TO PASS UPON
THE JUDGE'S STATEMENT TO THE EFFECT THAT AN UNFAIR LABOR PRACTICE
COMPLAINT DOES NOT CONSTITUTE A "GRIEVANCE" WITHIN THE MEANING OF
SECTION 7103(A)(9) OF THE STATUTE, AS WELL AS HIS STATEMENT TO THE
EFFECT THAT SECTION 7114(A)(2)(A) ENCOMPASSES FORMAL DISCUSSIONS
CONCERNING GENERAL CONDITIONS OF EMPLOYMENT ONLY WHEN A CHANGE IN
WORKING CONDITIONS IS INVOLVED.
/6/ THE CHARGING PARTY REQUESTED AN OPPORTUNITY TO FILE A REPLY TO
OPM'S BRIEF ON OR BEFORE JANUARY 26, 1981. THE REQUEST WAS GRANTED BUT
NO REPLY BRIEFS WERE FILED.
/7/ STIPULATIONS RELATING TO PRIOR SETTLEMENT EFFORTS HAVE BEEN
IGNORED.
/8/ THE EIGHT CIRCUIT DID NOT QUESTION THE BOARD'S INTERROGATION
RULES.
/9/ HER TESTIMONY WAS FULLY CORROBORATED BY EMPLOYEE KIKER WITH
RESPECT TO THE LATTER'S INTERVIEW. IN CONTRAST, EMPLOYEES WHITE AND
CHANDLER TESTIFIED THAT NO "ASSURANCES" WERE GIVEN BY BRIGMAN DURING
THEIR INTERVIEWS. WHITE EVEN STATED THAT SHE TOLD HIM HE HAD TO ANSWER
THE QUESTIONS. I AM CONVINCED ON THE BASIS OF THE TESTIMONIAL DEMEANOR
OF ALL THESE WITNESSES THAT BRIGMAN'S VERSION OF THE FACTS REPRESENTS
THE TRUTH, THAT CHANDLER COULD NOT REMEMBER WHAT HAPPENED AND THAT WHITE
ENGAGED IN FABRICATION AT THE HEARING.
/10/ WHITE AND CHANDLER HAD PREVIOUSLY ASKED HER OPINION ABOUT THE
UNION'S RIGHT TO ATTEND SUCH AN INTERVIEW. SHE TOLD THEM BOTH THE UNION
HAD NO SUCH RIGHT AND SUBSEQUENTLY OBTAINED THEIR COOPERATION ON A
VOLUNTARY BASIS AFTER CLARIFYING THIS "PROCEDURAL" POINT.
/11/ I NEED NOT DECIDE WHETHER A TRULY COERCIVE INTERVIEW WOULD
VIOLATE SEC. 7118 AND SEC. 7116(A)(8).
/12/ THE CHARGING PARTY'S ARGUMENT THAT AN UNFAIR LABOR PRACTICE
COMPLAINT CONSTITUTES A "GRIEVANCE" AS DEFINED BY SEC. 7103(A)(9) FOR
PURPOSES OF THE STATUTE IS SO TOTALLY DEVOID OF MERIT THAT NO FURTHER
DISCUSSION IS NECESSARY.
/13/ IT IS NOT SERIOUSLY ARGUED THAT THE MEETINGS CONCERNED PERSONNEL
POLICIES OR PRACTICES.
/14/ ALTHOUGH NOT DISPOSITIVE OF THIS ISSUE, THE RECORD DOES NOT
REVEAL ANY CONNECTION BETWEEN THE INTERVIEWS IN QUESTION AND THE
ULTIMATE REMEDY GRANTED BY THE AUTHORITY IN 4 FLRA NO. 42(1980).
/15/ IT IS NOTED THAT THE GENERAL COUNSEL'S POSITION WOULD LEAD TO
THE ANOMALOUS RESULT WHEREIN THE UNION COULD BE REPRESENTED AT SUCH
INTERVIEWS ONLY WHERE "GENERAL" WORKING CONDITIONS WERE INVOLVED, AND
WOULD HAVE NO SEC. 7114(A)(2)(A) RIGHTS IN CASES WITHOUT "GENERAL"
IMPACT. IN CONTRAST, THE UNION HAS THIS RIGHT IN ALL "GRIEVANCE" CASES
REGARDLESS OF THE ABSENCE OF IMPACT ON GENERAL WORKING CONDITIONS. U.S.
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, PITTSBURGH
DISTRICT, PITTSBURGH, PENNSYLVANIA, A/SLMR NO. 498, 5 A/SLMR 208(1975).
9 FLRA 133; FLRA 3-CA-803; AUGUST 16, 1982.
U.S. ARMY HEALTH CLINIC
FORT RITCHIE, MARYLAND
RESPONDENT
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1153
CHARGING PARTY
CASE NO. 3-CA-803
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE
ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN
CERTAIN UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND
RECOMMENDING THAT IT BE ORDERED TO CEASE AND DESIST THEREFROM AND TAKE
CERTAIN AFFIRMATIVE ACTION. THEREAFTER, THE RESPONDENT FILED EXCEPTIONS
TO THE JUDGE'S DECISION AND A BRIEF IN SUPPORT THEREOF.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY
HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS AS
MODIFIED HEREIN.
THE JUDGE FOUND THAT THE RESPONDENT FAILED TO COMPLY WITH AN
ARBITRATOR'S AWARD WHEN IT BASED CERTAIN DISCIPLINARY ACTION AGAINST AN
EMPLOYEE IN PART UPON AN EARLIER WRITTEN REPRIMAND WHICH THE ARBITRATOR
HAD ORDERED REMOVED FROM THE EMPLOYEE'S RECORD. HE FOUND THAT SUCH
CONDUCT CONSTITUTED A FAILURE TO COMPLY WITH SECTION 7122(B) OF THE
STATUTE /1/ IN VIOLATION OF SECTION 7116(A)(1) AND (8). /2/ THE
AUTHORITY ADOPTS THE JUDGE'S DECISION IN THIS REGARD. SEE, E.G.,
DEPARTMENT OF THE AIR FORCE, AIR FORCE LOGISTICS COMMAND, 4 FLRA NO.
96(1980); NATIONAL TREASURY EMPLOYEES UNION, 3 FLRA 623(1980); AND
HEADQUARTERS, U.S. ARMY COMMUNICATIONS COMMAND, ET AL., FORT HUACHUCA,
ARIZONA, 2 FLRA 785(1980). /3/ ACCORDINGLY, THE AUTHORITY SHALL ORDER
THE RESPONDENT TO CEASE AND DESIST FROM ITS VIOLATIVE CONDUCT AND TO
TAKE CERTAIN AFFIRMATIVE ACTION.
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS
HEREBY ORDERED THAT THE U.S. ARMY HEALTH CLINIC, FORT RITCHIE, MARYLAND,
SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING OR REFUSING TO COMPLY WITH THE MAY 15, 1979 FINAL AWARD
OF ARBITRATOR MILLARD CASS OR WITH ANY ARBITRATOR'S FINAL AWARD ISSUED
PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
(B) RELYING ON JOHANNA P. HARRIS' FAILURE TO OBEY AN ORDER TO RETURN
TO HER SUPERVISOR'S OFFICE ON AUGUST 14, 1978 AS THE BASIS FOR IMPOSING
PROGRESSIVELY SEVERE PENALTIES FOR OTHER OFFENSES IN FORMAL DISCIPLINARY
ACTIONS.
(C) IN ANY LIKE OR RELATED MANNER FAILING OR REFUSING TO COMPLY WITH
ANY PROVISION OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
(D) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF ANY RIGHT UNDER THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) COMPLY WITH THE MAY 15, 1979 FINAL AWARD OF ARBITRATOR MILLARD
CASS AND ANY OTHER ARBITRATOR'S FINAL AWARD ISSUED PURSUANT TO THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
(B) REVOKE, RESCIND, AND REMOVE ALL REFERENCES TO JOHANNA P. HARRIS'
FAILURE TO OBEY AN ORDER TO RETURN TO HER SUPERVISOR'S OFFICE ON AUGUST
14, 1978 FROM HER OFFICIAL PERSONNEL FILE AND FROM ALL FORMAL
DISCIPLINARY ACTIONS TAKEN AGAINST JOHANNA P. HARRIS SUBSEQUENT TO
AUGUST 14, 1978, INCLUDING THE SEPTEMBER 19, 1978 NOTICE OF PROPOSED
SUSPENSION AND THE SEPTEMBER 17, 1979 NOTICE OF PROPOSED REMOVAL, AND
REVISE SUCH ACTIONS ACCORDINGLY TO THE EXTENT REQUIRED BY LAW AND
REGULATIONS.
(C) ADVISE THE MERIT SYSTEMS PROTECTION BOARD, FOR ITS CONSIDERATION
IN THE CASE OF JOHANNA P. HARRIS V. U.S. DEPARTMENT OF THE ARMY, OF THE
ACTIONS TAKEN TO COMPLY WITH THE ARBITRATOR'S DECISION PURSUANT TO THIS
ORDER. /4/
(D) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE ON FORMS TO
BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF
SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDING OFFICER, U.S. ARMY
HEALTH CLINIC, FORT RITCHIE, MARYLAND, 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 COMMANDER SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(E) PURSUANT TO SECTION 2424.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION III, FEDERAL LABOR
RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT FAIL OR REFUSE TO COMPLY WITH THE MAY 15, 1979 FINAL
AWARD OF ARBITRATOR MILLARD CASS OR WITH ANY OTHER ARBITRATOR'S FINAL
AWARD ISSUED PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE.
WE WILL NOT RELY ON JOHANNA P. HARRIS' FAILURE TO OBEY AN ORDER TO
RETURN TO HER SUPERVISOR'S OFFICE ON AUGUST 14, 1978 AS THE BASIS FOR
IMPOSING PROGRESSIVELY SEVERE PENALTIES FOR OTHER OFFENSES IN FORMAL
DISCIPLINARY ACTIONS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER FAIL OR REFUSE TO COMPLY
WITH ANY PROVISION OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF ANY RIGHT UNDER THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL COMPLY WITH THE MAY 15, 1979 FINAL AWARD OF ARBITRATOR
MILLARD CASS AND WITH ANY OTHER ARBITRATOR'S FINAL AWARD ISSUED PURSUANT
TO THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL REVOKE, RESCIND, AND REMOVE ALL REFERENCES TO JOHANNA P.
HARRIS' FAILURE TO OBEY AN ORDER TO RETURN TO HER SUPERVISOR'S OFFICE ON
AUGUST 14, 1978 FROM HER OFFICIAL PERSONNEL FILE AND FROM ALL FORMAL
DISCIPLINARY ACTIONS TAKEN AGAINST JOHANNA P. HARRIS SUBSEQUENT TO
AUGUST 14, 1978, INCLUDING THE SEPTEMBER 19, 1978 NOTICE OF PROPOSED
SUSPENSION AND THE SEPTEMBER 17, 1979 NOTICE OF PROPOSED REMOVAL, AND
REVISE SUCH ACTIONS ACCORDINGLY TO THE EXTENT REQUIRED BY LAW AND
REGULATIONS.
WE WILL ADVISE THE MERIT SYSTEMS PROTECTION BOARD, FOR ITS
CONSIDERATION IN THE CASE OF JOHANNA P. HARRIS V. U.S. DEPARTMENT OF THE
ARMY, OF THE ACTIONS TAKEN TO COMPLY WITH THE ARBITRATOR'S DECISION
PURSUANT TO THIS ORDER.
(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 THE EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR
COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
WITH THE REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION
III, 1111 18TH STREET, NW., SUITE 700, WASHINGTON, D.C., 20036, AND
WHOSE TELEPHONE NUMBER IS (202) 653-8507.
SAM HORN, ESQUIRE
JOHN C. GREENHAUGH, ESQUIRE
FOR THE RESPONDENT
HEATHER GOTTS, ESQUIRE
FOR THE GENERAL COUNSEL
BEFORE: GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 5 U.S.C. 7101 ET SEQ., (THE STATUTE), AS A RESULT OF
AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE REGIONAL DIRECTOR,
REGION THREE, FEDERAL LABOR RELATIONS AUTHORITY, WASHINGTON, D.C.,
AGAINST THE U.S. ARMY HEALTH CLINIC, FORT RITCHIE, MARYLAND
(RESPONDENT), BASED ON A CHARGE FILED BY THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1153 (CHARGING PARTY OR UNION).
THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED
SECTIONS 7116(A)(1), (5), AND (8) OF THE STATUTE BY FAILING TO COMPLY
WITH AN ARBITRATOR'S AWARD. RESPONDENT DENIED THE ALLEGATIONS AND
ASSERTED THAT IT HAD COMPLIED WITH THE ARBITRATOR'S AWARD.
A HEARING WAS HELD IN THIS MATTER IN WASHINGTON, D.C. THE PARTIES
ENTERED INTO A STIPULATION OF FACT AT THE HEARING BASED ON SUPPORTING
EXHIBITS. BASED ON THE STIPULATION AND SUPPORTING EXHIBITS, AND BRIEFS
FILED BY THE RESPONDENT AND GENERAL COUNSEL, FLRA, I MAKE THE FOLLOWING
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
FINDINGS OF FACT
1. RESPONDENT HAS RECOGNIZED THE UNION AS THE EXCLUSIVE
REPRESENTATIVE OF AN APPROPRIATE UNIT OF ITS EMPLOYEES SINCE 1970. THE
CURRENT COLLECTIVE-BARGAINING AGREEMENT BETWEEN THE PARTIES BECAME
EFFECTIVE DECEMBER 12, 1973. THE AGREEMENT CONTAINS A GRIEVANCE
PROCEDURE WHICH PROVIDES FOR THE SUBMISSION OF UNRESOLVED GRIEVANCES TO
ARBITRATION. (JOINT EX. 1).
2. FORT RITCHIE REGULATIONS 690-11, IN EFFECT AT ALL TIMES MATERIAL,
PROVIDED, IN PART, AS FOLLOWS:
3. DEFINITIONS.
A. INFORMAL DISCIPLINARY ACTION. 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 INFRACTIONS
OF A RULE, REGULATION,
STANDARD OF CONDUCT, SAFETY PRACTICE OR AUTHORITATIVE INSTRUCTION . .
. .
B. FORMAL DISCIPLINARY ACTIONS CONSIST OF WRITTEN REPRIMANDS,
SUSPENSIONS, AND
REMOVALS. ALTHOUGH FORMAL DISCIPLINARY ACTIONS ARE INITIATED BY
SUPERVISORS, SUCH ACTIONS MAY
NOT BE ACCOMPLISHED WITHOUT ACTION ON THE PART OF THE CIVILIAN
PERSONNEL OFFICE . . . .
APPENDIX A TO THE REGULATION SETS OUT TABLES PERTAINING TO PENALTIES
FOR VARIOUS OFFENSES. THIS TABLE PROVIDED, IN PART, AS FOLLOWS:
THIS TABLE OF PENALTIES FOR DELINQUENCY OR MISCONDUCT WILL BE USED AS
A GENERAL GUIDE IN
IMPOSING DISCIPLINARY ACTION TO ASSURE LIKE PENALTIES FOR LIKE
OFFENSES THROUGHOUT THE
DEPARTMENT OF THE ARMY. THE LIST OF OFFENSES AND SUGGESTED PENALTIES
SET FORTH BELOW MAY NOT
SUCCESSFULLY MEET THE DEMANDS OF ALL SITUATIONS AND THEREFORE IS TO
BE CONSIDERED AS
SUGGESTIVE ONLY. WHEN IMPOSING PROGRESSIVE PENALTIES FOR SECOND AND
THIRD OFFENSES,
CONSIDERATION MUST BE GIVEN TO WHETHER A REASONABLE PERIOD HAS
ELAPSED SINCE THE PRIOR
OFFENSE. (WHAT IS REASONABLE WILL DEPEND ON THE FACTS AND
CIRCUMSTANCES OF EACH INDIVIDUAL
CASE.)
WHERE THE PENALTY PROPOSED EXCEEDS THE SUGGESTED LEVEL OF PENALTY FOR
A PARTICULAR OFFENSE
AS SET FORTH BELOW, OR IN A LOCALLY DEVELOPED REGULATION, AN
EXPLANATION OF THE REASON FOR
DEVIATION MUST BE PROVIDED IN THE PROPOSED NOTICE TO THE EMPLOYEE.
USERS OF THIS GUIDE SHOULD BE THOROUGHLY FAMILIAR WITH ALL
THE PROVISIONS OF CPR 751
(GUIDE OMITTED)
3. ON NOVEMBER 16, 1976 JOHANNA P. HARRIS, A MEDICAL TECHNICIAN FOR
THE RESPONDENT, WAS SUSPENDED FROM DUTY FOR ONE DAY FOR FAILING TO OBEY
AN ORDER. (JOINT EX. 15).
4. ON AUGUST 18, 1978 A PROPOSED OFFICIAL WRITTEN REPRIMAND WAS
DIRECTED TO JOHANNA P. HARRIS BASED ON HER FAILURE TO OBEY AN ORDER TO
RETURN TO HER SUPERVISOR'S OFFICE ON AUGUST 14, 1978 TO COMPLETE A
COUNSELING SESSION. THE PROPOSED REPRIMAND NOTED THAT, "IF SUSTAINED
(THIS REPRIMAND) WILL BE MADE A MATTER OF RECORD IN YOUR OFFICIAL
PERSONNEL FOLDER FOR A PERIOD OF ONE (1) YEAR." (JOINT EX. 2).
5. ON SEPTEMBER 13, 1978, AFTER CONSIDERING THE PROPOSED REPRIMAND
AND MRS. HARRIS' REPLY, COLONEL WILLIAM B. BRUMLEY, FOUND THE PROPOSED
ACTION TO BE WARRANTED. HE STATED, IN PART, "THEREFORE, THE LETTER OF
REPRIMAND IS SUSTAINED AND WILL BE MADE A MATTER OF RECORD IN YOUR
OFFICIAL PERSONNEL FOLDER FOR A PERIOD OF ONE (1) YEAR." (JOINT EX. 3).
6. ON OR ABOUT OCTOBER 30, 1978 THE UNION INVOKED ARBITRATION ON THE
MERITS OF HARRIS' GRIEVANCE RELATING TO THE SEPTEMBER 13, 1978 LETTER OF
REPRIMAND.
7. ON MAY 15, 1979 ARBITRATOR MILLARD CASS ISSUED A SIX PAGE
DECISION AND AWARD WHICH CONCLUDED AS FOLLOWS:
BASED UPON THE ENTIRE RECORD, I FIND THAT JOHANNA HARRIS WAS GUILTY
OF A POOR ATTITUDE AND
FAILURE TO OBEY DR. FARMER'S ORDER. THIS WAS IMPROPER, BUT NOT
SERIOUS ENOUGH TO WARRANT
FORMAL ACTION. UNDER THE CIRCUMSTANCES, AN OFFICIAL REPRIMAND WAS
NOT JUSTIFIED, AND IT IS
ORDERED REMOVED FROM HARRIS' PERSONNEL FILE. (JOINT EX. 8).
8. RESPONDENT DID NOT APPEAL THE DECISION OF THE ARBITRATOR. ON OR
ABOUT MAY 21, 1979, RESPONDENT REMOVED FROM HARRIS' OFFICIAL PERSONNEL
FILE THE LETTER OF REPRIMAND ISSUED ON SEPTEMBER 13, 1978.
9. DURING THE TIME FROM HARRIS' RECEIPT OF THE SEPTEMBER 13, 1978
LETTER OF REPRIMAND TO THE DATE OF THE ARBITRATOR'S DECISION, HARRIS WAS
THE SUBJECT OF OTHER PERSONNEL ACTION. ON SEPTEMBER 19, 1978 RESPONDENT
ISSUED TO MRS. HARRIS A NOTICE OF A PROPOSED 5-DAY SUSPENSION FROM DUTY
WITHOUT PAY FOR FAILURE TO FOLLOW A DIRECTIVE ON AUGUST 22, 1978 TO
PERFORM A STAT WHITE BLOOD COUNT PROCEDURE. THE LETTER NOTED THAT, "THE
MAXIMUM PENALTY IS BEING PROPOSED BECAUSE THIS IS YOUR SECOND OFFENSE AS
EVIDENCED BY A WRITTEN REPRIMAND THAT WAS ISSUED TO YOU ON 18 AUGUST
1978 FOR A SIMILAR OFFENSE." (JOINT EX. 4).
10. ON OCTOBER 16, 1978, AFTER CONSIDERING THE PROPOSED SUSPENSION
AND MRS. HARRIS' REPLY, RESPONDENT FOUND THE CHARGE SUPPORTED AND THE
ACTION WARRANTED. (JOINT EX. 5). THERE IS NO EVIDENCE THAT MRS. HARRIS
REQUESTED A REVIEW OF THIS DECISION. ACCORDINGLY, MRS. HARRIS WAS
SUSPENDED FROM DUTY WITHOUT PAY DURING THE PERIOD OCTOBER 23-27, 1978.
11. ONCE THE ARBITRATOR'S DECISION WAS RENDERED CONCERNING THE
SEPTEMBER 13, 1978 LETTER OF REPRIMAND, THE UNION, BY LETTER DATED MAY
23, 1979, WROTE TO RESPONDENT CONCERNING THE 5-DAY SUSPENSION. THE
UNION NOTED THAT THE PUNISHMENT OF SUSPENSION HAD BEEN IMPOSED BY
RESPONDENT BECAUSE THE INCIDENT WAS STATED TO BE HARRIS' "SECOND OFFENSE
AS EVIDENCED BY A WRITTEN REPRIMAND THAT WAS ISSUED TO YOU ON 18 AUGUST
1978 FOR A SIMILAR OFFENSE." THE UNION ARGUED THAT SINCE THE ARBITRATOR
HAD OVERTURNED THE LETTER OF REPRIMAND, THE INCIDENT WHICH TRIGGERED THE
5-DAY SUSPENSION HAD BECOME THE FIRST OFFENSE. THE UNION REQUESTED THAT
THE 5-DAY SUSPENSION BE REDUCED TO A LETTER OF REPRIMAND AND THAT HARRIS
BE RESTORED FIVE DAYS PAY. (JOINT EX. 9).
12. BY LETTER DATED JULY 18, 1979 RESPONDENT INFORMED THE UNION OF
ITS POSITION REGARDING MRS. HARRIS' 5-DAY SUSPENSION. RESPONDENT
STATED, IN PART, AS FOLLOWS:
IT IS MANAGEMENT'S POSITION THAT THE 30 MARCH 1979 (SIC) DECISION AND
AWARD RENDERED BY
MR. MILLARD CASS REFERRED TO IN YOUR REFERENCED LETTER DID NOT STATE
THAT A FIRST OFFENSE WAS
NOT COMMITTED BY MRS. HARRIS. MR. CASS' DECISION AND AWARD ONLY
STATES THAT THE PUNISHMENT
FOR THE FIRST OFFENSE WAS, IN HIS OPINION, TOO SEVERE. HE DID NOT
STATE THAT A FIRST OFFENSE
DID NOT HAPPEN. IN FACT, HE SPECIFICALLY STATES IN HIS LAST
PARAGRAPH OF THE DECISION AND
AWARD THAT "I FIND THAT JOHANNA HARRIS WAS GUILTY OF A POOR ATTITUDE
AND FAILURE TO OBEY
DR. FARMER'S ORDER." HE, THEREFORE, CLEARLY SAYS THAT AN OFFENSE WAS
COMMITTED BY
MRS. HARRIS. THEREFORE, MRS. HARRIS' ACT OF DISOBEDIENCE, SUBSEQUENT
TO THE ACT OF
DISOBEDIENCE ON 18 AUGUST 1978, WAS TRULY A SECOND OFFENSE FOR WHICH
MANAGEMENT COULD IMPOSE A
SUSPENSION WITHOUT PAY. (JOINT EX. 10).
13. ON SEPTEMBER 17, 1979 MRS. HARRIS WAS GIVEN ADVANCE NOTICE OF
HER PROPOSED REMOVAL FROM FEDERAL SERVICE. THE REASONS ADVANCED FOR THE
PROPOSED REMOVAL WERE HER REPEATED FAILURES TO OBEY THE ORDERS OF HER
SUPERVISORS. THE NOTICE DEVOTED THE MOST ATTENTION TO THE CHARGE THAT
HARRIS HAD FAILED TO PERFORM QUALITY CONTROL AND/OR TO RECORD THE
RESULTS OF QUALITY CONTROL IN SEROLOGY, HEMATOLOGY, AND URINALYSIS
DURING THE PERIOD FROM AUGUST 18, 1979 TO JUNE 6, 1979 IN VIOLATION OF
AN AUGUST 14, 1979 ORDER OF HER SUPERVISOR TO PERFORM SUCH PROCEDURES.
RESPONDENT ALSO RELIED ON THREE PRIOR OFFENSES OF FAILURE TO OBEY
ORDERS, INCLUDING THE OFFENSE THAT BECAME THE SUBJECT OF THE ARBITRATION
AWARD. RESPONDENT STATED THAT "ALTHOUGH THE WRITTEN REPRIMAND OF AUGUST
18, 1978 WAS WITHDRAWN . . . THE ARBITRATOR DID SPECIFICALLY FIND THAT
YOU WERE 'GUILTY OF A POOR ATTITUDE AND FAILURE TO OBEY DR. FARMER'S
ORDER'." FOR THE OTHER TWO PRIOR OFFENSES, RESPONDENT RELIED ON THE
5-DAY SUSPENSION FOR FAILURE TO OBEY AN ORDER AND THE 1-DAY SUSPENSION
FOR FAILURE TO OBEY AN ORDER IN 1976. (JOINT EX. 11).
14. ON OCTOBER 29, 1979, AFTER REVIEWING MRS. HARRIS' REBUTTAL,
RESPONDENT SUSTAINED THE PROPOSED REMOVAL. HARRIS WAS SEPARATED FROM
FEDERAL SERVICE AND REMOVED FROM RESPONDENT'S PAYROLL ON NOVEMBER 2,
1979. (JOINT EX. 12).
15. MRS. HARRIS APPEALED HER SEPARATION TO THE MERIT SYSTEMS
PROTECTION BOARD. AN INITIAL DECISION SUSTAINING THE REMOVAL WAS
RENDERED BY A PRESIDING OFFICIAL OF THE PHILADELPHIA FIELD OFFICE ON
MARCH 21, 1980. THE DECISION REFLECTS THAT THE PRESIDING OFFICIAL
CONSIDERED AND DECIDED AN ISSUE DEALING WITH THE VALIDITY OF
RESPONDENT'S RELIANCE ON PAST OFFENSES IN DETERMINING THE PENALTY TO BE
IMPOSED, AND THE EFFECT OF THE ARBITRATOR'S DECISION AND THE VALIDITY OF
CERTAIN OF THESE PAST OFFENSES. THE PRESIDING OFFICIAL DETERMINED, IN
PART, THAT BECAUSE OF THE ARBITRATOR'S DECISION, THE AUGUST 18, 1978
LETTER OF REPRIMAND DID NOT CONSTITUTE A PAST DISCIPLINARY ELEMENT ON
WHICH THE AGENCY COULD RELY. (JOINT EX. 16). THE STIPULATION REFLECTS
THAT THE INITIAL DECISION HAS BEEN APPEALED TO THE MERIT SYSTEMS
PROTECTION BOARD.
DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
THE GENERAL COUNSEL ALLEGES THAT RESPONDENT VIOLATED SECTIONS
7116(A)(1), (5), AND (8) OF THE STATUTE BY FAILING AND REFUSING TO
COMPLY WITH AN ARBITRATOR'S AWARD. THE GENERAL COUNSEL ASSERTS THAT
ALTHOUGH RESPONDENT PHYSICALLY REMOVED THE REPRIMAND FROM THE PERSONNEL
FILE, AS ORDERED BY THE ARBITRATOR, IT FAILED TO COMPLETELY VACATE THE
DISCIPLINE AND THE EFFECTS THEREOF, AS INTENDED BY THE ARBITRATOR'S
AWARD, AND, INSTEAD, USED THE REPRIMAND AS A BASIS FOR ADMINISTERING
PROGRESSIVELY MORE SEVERE DISCIPLINE.
RESPONDENT CONTENDS THAT IT COMPLIED WITH THE ARBITRATOR'S AWARD BY
REMOVING THE REPRIMAND FROM THE FILE. RESPONDENT ARGUES THAT THE
ARBITRATOR ONLY FOUND THE PENALTY TO BE EXCESSIVE AND THAT IT WAS NOT
PRECLUDED FROM CONSIDERING THE ARBITRATOR'S FINDING OF GUILT IN
EVALUATING THE PENALTY FOR A SUBSEQUENT OFFENSE.
THE DETERMINATION OF WHETHER OR NOT RESPONDENT COMPLIED WITH THE
ARBITRATOR'S AWARD INVOLVES AN ANALYSIS OF THE ARBITRATOR'S AWARD IN
LIGHT OF THE RELEVANT AGENCY AND CIVIL SERVICE REGULATIONS. IT IS CLEAR
FROM FORT RITCHIE REGULATION 690-11 THAT THERE ARE TWO CATEGORIES OF
DISCIPLINARY ACTIONS: INFORMAL AND FORMAL. INFORMAL ACTIONS INVOLVE
ORAL ADMONITIONS AND WARNINGS TAKEN BY A SUPERVISOR ON HIS OWN
INITIATIVE IN SITUATIONS OF A MINOR NATURE. FORMAL DISCIPLINARY ACTIONS
CONSIST OF WRITTEN REPRIMANDS, SUSPENSIONS, AND REMOVALS AND MAY NOT BE
ACCOMPLISHED BY A SUPERVISOR WITHOUT ACTION ON THE PART OF CIVILIAN
PERSONNEL OFFICE. THE GRADUATED SYSTEM OF PENALTIES FOR VARIOUS
OFFENSES, REFLECTED ON THE TABLE ATTACHED TO THE REGULATION; REFLECTS
THAT THEY RANGE FROM WRITTEN REPRIMAND FOR THE FIRST OFFENSE, TO
SUSPENSION FOR THE SECOND OFFENSE, AND REMOVAL FOR THE THIRD OFFENSE.
ALL OF THESE PENALTIES INVOLVE OFFENSES UNDER THE FORMAL DISCIPLINARY
ACTION PROCEDURE SINCE, AS NOTED, FORMAL DISCIPLINARY ACTIONS BY
DEFINITION CONSIST ONLY OF WRITTEN REPRIMANDS, SUSPENSIONS, AND
REMOVALS. IT FOLLOWS, THEREFORE, THAT UNLESS AN OFFENSE RESULTS IN A
FORMAL DISCIPLINARY ACTION IT CANNOT BE USED AS A BASIS FOR THE
GRADUATED SYSTEM OF PENALTIES.
AS NOTED, THE ARBITRATOR SPECIFICALLY FOUND, AS FOLLOWS:
BASED UPON THE ENTIRE RECORD, I FIND THAT JOHANNA HARRIS WAS GUILTY
OF A POOR ATTITUDE AND
FAILURE TO OBEY DR. FARMER'S ORDER. THIS WAS IMPROPER, BUT NOT
SERIOUS ENOUGH TO WARRANT
FORMAL ACTION. UNDER THE CIRCUMSTANCES, AN OFFICIAL REPRIMAND WAS
NOT JUSTIFIED, AND IT IS
ORDERED REMOVED FROM HARRIS' PERSONNEL FILE. (JOINT EX. 8).
IN FINDING THAT MRS. HARRIS' ACTION "WAS IMPROPER, BUT NOT SERIOUS
ENOUGH TO WARRANT FORMAL ACTION" AND THAT "AN OFFICIAL REPRIMAND WAS NOT
JUSTIFIED," THE ARBITRATOR, IN EFFECT, FOUND THAT MRS. HARRIS' CONDUCT
ONLY WARRANTED INFORMAL DISCIPLINARY ACTION UNDER ARMY REGULATIONS.
SINCE THE CONDUCT WAS, IN EFFECT, DOWNGRADED BY THE ARBITRATOR TO
INFORMAL DISCIPLINARY ACTION, IT COULD NOT SUBSEQUENTLY BE CONSIDERED AN
OFFENSE UNDER THE FORMAL DISCIPLINARY ACTION PROCEDURE AND USED AS A
BASIS FOR THE GRADUATED SYSTEM OF PENALTIES UNDER THE REGULATION. THIS
IS ALSO MADE CLEAR BY THE ARBITRATOR'S ACTION IN ORDERING THE REMOVAL OF
THE REPRIMAND FROM HARRIS' PERSONNEL FILE. 5 C.F.R. 293.203 AND
293.204(1978), REGULATIONS OF THE CIVIL SERVICE COMMISSION, PROVIDED AS
FOLLOWS:
SEC. 293.203 OWNERSHIP OF FOLDER.
THE OFFICIAL PERSONNEL FOLDER OF EACH EMPLOYEE IN A POSITION SUBJECT
TO CIVIL SERVICE RULES
AND REGULATIONS IS UNDER THE JURISDICTION AND CONTROL OF, AND IS PART
OF THE RECORDS OF, THE
COMMISSION.
SEC. 293.204 MAINTENANCE AND CONTENT OF FOLDER.
THE HEAD OF EACH AGENCY SHALL MAINTAIN IN THE OFFICIAL PERSONNEL
FOLDER THE REPORTS OF
SELECTION AND OTHER PERSONNEL ACTIONS NAMED IN SECTION 2951 OF TITLE
5, UNITED STATES
CODE. THE FOLDER SHALL ALSO CONTAIN PERMANENT RECORDS AFFECTING THE
EMPLOYEE'S STATUS AND
SERVICE AS REQUIRED BY THE COMMISSION'S INSTRUCTIONS.
THUS, THE ARBITRATOR'S ORDER REMOVING THE REPRIMAND FROM HARRIS'
PERSONNEL FOLDER WAS DESIGNED TO INSURE THAT THE INCIDENT WOULD NOT
BECOME A "PERMANENT RECORD AFFECTING THE EMPLOYEE'S STATUS AND SERVICE."
IT IS CONCLUDED, THEREFORE, THAT RESPONDENT'S ACTION IN USING THE
INCIDENT AS A BASIS FOR ADMINISTERING PROGRESSIVELY MORE SEVERE
DISCIPLINE CONSTITUTED A FAILURE AND REFUSAL TO TAKE THE ACTION REQUIRED
BY THE ARBITRATOR'S AWARD. SUCH FAILURE AND REFUSAL IS CONTRARY TO
SECTION 7122(B) /5/ AND IS THEREFORE, AN UNFAIR LABOR PRACTICE UNDER
SECTIONS 7116(A)(1), AND (8) OF THE STATUTE. A VALID ARBITRATION AWARD
CONSTITUTES AN EXTENSION OF THE PARTIES' NEGOTIATED AGREEMENT WHICH MAY
BE MODIFIED ONLY BY MUTUAL AGREEMENT OF THE PARTIES. THUS, RESPONDENT'S
FAILURE TO COMPLY WITH THE AWARD ALSO CONSTITUTES A FAILURE TO BARGAIN
IN GOOD FAITH IN VIOLATION OF SECTIONS 7116(A)(5), AND (1) OF THE
STATUTE.
BASED ON THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS, IT IS
RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER:
ORDER
PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE STATUTE, THE
U.S. ARMY HEALTH CLINIC, FORT RITCHIE, MARYLAND SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING OR REFUSING TO COMPLY WITH THE MAY 15, 1979 FINAL AWARD
OF ARBITRATOR MILLARD
CASS.
(B) RELYING ON JOHANNA P. HARRIS' FAILURE TO OBEY AN ORDER TO RETURN
TO HER SUPERVISOR'S
OFFICE AUGUST 14, 1978 AS THE BASIS FOR IMPOSING PROGRESSIVELY SEVERE
PENALTIES FOR OTHER
OFFENSES IN FORMAL DISCIPLINARY ACTIONS.
(C) IN ANY LIKE OR RELATED MANNER FAILING OR REFUSING TO COMPLY WITH
ANY PROVISION OF THE
FEDERAL SERVICE LABOR- MANAGEMENT RELATIONS STATUTE.
(D) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN
THE EXERCISE OF ANY RIGHT UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
POLICIES AND PROVISIONS OF THE STATUTE:
(A) COMPLY WITH THE MAY 15, 1979 FINAL AWARD OF ARBITRATOR MILLARD
CASS AND ANY OTHER
ARBITRATOR'S FINAL AWARD ISSUED PURSUANT TO THE FEDERAL SERVICE
LABOR- MANAGEMENT RELATIONS
STATUTE.
(B) REVOKE, RESCIND, AND REMOVE ALL REFERENCES TO JOHANNA P. HARRIS'
FAILURE TO OBEY AN
ORDER TO RETURN TO HER SUPERVISOR'S OFFICE ON AUGUST 14, 1978 FROM
HER OFFICIAL PERSONNEL FILE
AND FROM ALL FORMAL DISCIPLINARY ACTIONS TAKEN AGAINST JOHANNA P.
HARRIS SUBSEQUENT TO AUGUST
14, 1978, INCLUDING THE SEPTEMBER 19, 1978 NOTICE OF PROPOSED
SUSPENSION AND THE SEPTEMBER 17,
1979 NOTICE OF PROPOSED REMOVAL, AND REVISE SUCH ACTIONS ACCORDINGLY
TO THE EXTENT REQUIRED BY
LAW AND REGULATIONS.
(D) ADVISE THE MERIT SYSTEMS PROTECTION BOARD, FOR ITS CONSIDERATION
IN THE CASE OF JOHANNA
P. HARRIS V. U.S. DEPARTMENT OF THE ARMY, OF THE ACTIONS TAKEN TO
COMPLY WITH THE ARBITRATOR'S
DECISION PURSUANT TO THIS ORDER.
(E) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE
FURNISHED BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL
BE SIGNED BY THE
COMMANDING OFFICER, U.S. ARMY HEALTH CLINIC, FORT RITCHIE, MARYLAND,
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
COMMANDER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE
NOT ALTERED, DEFACED, OR
COVERED BY ANY OTHER MATERIAL.
(F) PURSUANT TO 5 C.F.R. SECTION 2423.30 NOTIFY THE REGIONAL
DIRECTOR, FEDERAL LABOR
RELATIONS AUTHORITY, REGION THREE, IN WRITING, WITHIN 30 DAYS FROM
THE DATE OF THIS ORDER, AS
TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DATED: JULY 31, 1981
WASHINGTON, DC
APPENDIX PURSUANT TO A DECISION AND ORDER OF THE FEDERAL
LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT FAIL OR REFUSE TO COMPLY WITH THE MAY 15, 1979 FINAL
AWARD OF ARBITRATOR MILLARD CASS OR WITH ANY OTHER ARBITRATOR'S FINAL
AWARD ISSUED PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER FAIL OR REFUSE TO COMPLY
WITH ANY PROVISION OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF ANY RIGHT UNDER THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL COMPLY WITH THE MAY 15, 1979 FINAL AWARD OF ARBITRATOR
MILLARD CASS AND WITH ANY OTHER ARBITRATOR'S FINAL AWARD ISSUED PURSUANT
TO THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
(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 DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION THREE, 1133
15TH STREET, NW., WASHINGTON, D.C. 20005, TELEPHONE (202) 653-8452.
/1/ SECTION 7122(B) PROVIDES:
SEC. 7122. EXCEPTIONS TO ARBITRAL AWARDS
. . . .
(B) IF NO EXCEPTION TO AN ARBITRATOR'S AWARD IS FILED UNDER
SUBSECTION (A) OF THIS SECTION
DURING THE 30-DAY PERIOD BEGINNING ON THE DATE OF SUCH AWARD, THE
AWARD SHALL BE FINAL AND
BINDING. AN AGENCY SHALL TAKE THE ACTIONS REQUIRED BY AN
ARBITRATOR'S FINAL AWARD. THE AWARD
MAY INCLUDE THE PAYMENT OF BACKPAY (AS PROVIDED IN SECTION 5596 OF
THIS TITLE).
/2/ SECTION 7116(A)(1) AND (8) PROVIDES:
SEC. 7116. UNFAIR LABOR PRACTICES
(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY--
(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE BY THE EMPLOYEE OF
ANY RIGHT UNDER THIS CHAPTER;
. . . .
(8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
CHAPTER.
/3/ IN SO CONCLUDING, THE AUTHORITY FINDS IT UNNECESSARY TO PASS UPON
THE JUDGE'S FURTHER FINDING THAT THE RESPONDENT ALSO THEREBY FAILED TO
BARGAIN IN GOOD FAITH IN VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE
STATUTE.
/4/ AT THE TIME OF THE JUDGE'S DECISION, MSPB HAD ISSUED AN INITIAL
DECISION (NUMBER PH 075209115, MARCH 21, 1980). THAT DECISION SUSTAINED
THE EMPLOYEE'S REMOVAL, SPECIFICALLY NOT RELYING UPON THE DISCIPLINARY
ACTION INVOLVED IN THE ARBITRATOR'S AWARD. SUBSEQUENTLY, IN NOVEMBER
1980, A PETITION FOR REVIEW OF PRESIDING OFFICIAL'S DECISION WAS DENIED
BY MSPB, THEREBY MAKING THE INITIAL DECISION FINAL.
/5/ SEC. 7122(B) PROVIDES: IF NO EXCEPTION TO AN ARBITRATOR'S AWARD
IS FILED UNDER SUBSECTION (A) OF THIS SECTION DURING THE 30-DAY PERIOD
BEGINNING ON THE DATE OF SUCH AWARD, THE AWARD SHALL BE FINAL AND
BINDING. AN AGENCY SHALL TAKE THE ACTIONS REQUIRED BY AN ARBITRATOR'S
FINAL AWARD. THE AWARD MAY INCLUDE THE PAYMENT OF BACKPAY (AS PROVIDED
IN SECTION 5596 OF THIS TITLE)."
9 FLRA 132; FLRA 2-CA-114, 2-CA-120; AUGUST 16, 1982.
INTERNAL REVENUE SERVICE
AND BROOKHAVEN SERVICE CENTER
RESPONDENT
AND
NATIONAL TREASURY EMPLOYEES
UNION AND NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 99
CHARGING PARTY
CASE NOS. 2-CA-114, 2-CA-120
DECISION AND ORDER
THESE CONSOLIDATED CASES ARE BEFORE THE AUTHORITY PURSUANT TO THE
REGIONAL DIRECTOR'S "ORDER TRANSFERRING CASE TO THE AUTHORITY" IN
ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES AND
REGULATIONS.
UPON CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES'
STIPULATION OF FACTS AND BRIEFS, THE AUTHORITY FINDS:
IN CASE NO. 2-CA-114, ROBERT T. HERMANN, COUNSEL FOR THE RESPONDENT
IN A PENDING UNFAIR LABOR PRACTICE PROCEEDING COMMENCED BY THE NATIONAL
TREASURY EMPLOYEES UNION (NTEU), THE EXCLUSIVE REPRESENTATIVE OF A UNIT
THAT INCLUDED THE EMPLOYEES INVOLVED HEREIN, MET WITH EMPLOYEE DIANE
FRISINA FOR THE PURPOSE OF PREPARING THE RESPONDENT'S CASE. AT THE
OUTSET OF THE MEETING, HERMANN INFORMED FRISINA THAT HE WAS REPRESENTING
THE RESPONDENT AT THE FORTHCOMING UNFAIR LABOR PRACTICE HEARING.
HERMANN FURTHER ADVISED HER THAT HE WISHED TO ASK HER ABOUT THE FACTS IN
THE CASE, THAT SHE WAS UNDER NO OBLIGATION TO SPEAK TO HIM, THAT SHE
COULD LEAVE IF SHE DID NOT WISH TO SPEAK TO HIM, AND THAT REGARDLESS OF
WHAT POSITION SHE TOOK THERE WOULD BE NO REPRISAL. AT HER REQUEST, HE
EXPLAINED THAT "NO REPRISAL" MEANT THAT MANAGEMENT COULD NOT DO ANYTHING
TO HER IF SHE REFUSED TO TALK TO HIM. FRISINA INDICATED THAT SHE WOULD
SPEAK TO HIM BUT WOULD NEITHER TESTIFY AT THE HEARING NOR GIVE A WRITTEN
STATEMENT. FRISINA AND HERMANN THEN DISCUSSED THE FACTS RELATING TO THE
UNFAIR LABOR PRACTICE PROCEEDING. HERMANN DID NOT AT ANY TIME NOTIFY
NTEU OF THE MEETING.
IN CASE NO. 2-CA-120, ELLIOT CARLIN, THE RESPONDENT'S REPRESENTATIVE
IN AN UPCOMING ARBITRATION HEARING TO BE CONDUCTED PURSUANT TO THE
PARTIES' COLLECTIVE BARGAINING AGREEMENT, DETERMINED THAT IT WOULD BE
NECESSARY TO CALL EMPLOYEES PATRICIA WINKLEBLECK AND ANDREA LIPSKI AS
WITNESSES FOR THE RESPONDENT AT THAT HEARING. CARLIN ADVISED WILLIAM
WHITE, ASSOCIATE GENERAL COUNSEL OF NTEU, THAT HE INTENDED TO CALL
WINKLEBLECK AS A WITNESS AT THE ARBITRATION HEARING AND THAT HE ALSO
INTENDED TO INTERVIEW LIPSKI, A POTENTIAL WITNESS. WHITE REQUESTED THAT
AN NTEU REPRESENTATIVE BE PRESENT AT ANY MEETINGS BETWEEN CARLIN AND THE
TWO EMPLOYEES. CARLIN DENIED THIS REQUEST, STATING THAT THE TWO
EMPLOYEES WOULD BE THE RESPONDENT'S MAJOR WITNESSES AND THAT THE
PRESENCE OF AN NTEU REPRESENTATIVE DURING THE INTERVIEWS WOULD INTERFERE
WITH HIS (CARLIN'S) ABILITY TO PREPARE HIS CASE AND TO ASCERTAIN THE
FACTS NECESSARY TO DETERMINE WHETHER A SETTLEMENT OFFER COULD BE MADE.
CARLIN MET SEPARATELY WITH WINKLEBLECK AND LIPSKI. BEFORE BEGINNING
THE INTERVIEWS, HE INFORMED EACH EMPLOYEE THAT SHE WAS IN NO WAY
REQUIRED TO SPEAK WITH HIM, THAT THE PURPOSE OF THE INTERVIEW WAS TO
PREPARE THE RESPONDENT'S CASE FOR THE PENDING ARBITRATION HEARING AND TO
ASCERTAIN WHETHER THE CASE COULD BE SETTLED, THAT SHE WAS FREE TO HAVE
ANYONE PRESENT SHE DESIRED, THAT NO REPRISALS WOULD BE TAKEN AGAINST HER
WHETHER OR NOT SHE CHOSE TO BE INTERVIEWED AND REGARDLESS OF WHAT SHE
TOLD HIM, AND THAT SHE WAS NOT BEING EVALUATED IN ANY WAY. EACH
EMPLOYEE AGREED TO BE INTERVIEWED AND NEITHER REQUESTED THE PRESENCE OF
AN NTEU REPRESENTATIVE. CARLIN SUBSEQUENTLY INFORMED WHITE THAT THE
INTERVIEWS HAD OCCURRED.
THE COMPLAINTS IN BOTH CASES, IN RELIANCE UPON SECTION 7114(A)(2)(A)
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE),
/1/ ALLEGE THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1), (5) AND (8)
OF THE STATUTE BY MEETING DIRECTLY WITH UNIT EMPLOYEES TO INTERVIEW THEM
IN PREPARATION FOR UNFAIR LABOR PRACTICE AND ARBITRATION HEARINGS
WITHOUT NOTIFYING NTEU AND AFFORDING NTEU THE OPPORTUNITY TO BE PRESENT
AT THE ABOVE-MENTIONED MEETINGS. THE GENERAL COUNSEL CONTENDS THAT THE
MEETINGS HEREIN WERE "FORMAL DISCUSSIONS" WITHIN THE MEANING OF SECTION
7114(A)(2)(A) OF THE STATUTE. THE AUTHORITY DISAGREES.
THE AUTHORITY AGREES WITH THE POSITION OF THE GENERAL COUNSEL THAT
SECTION 7114(A)(2)(A) APPLIES ONLY TO "FORMAL" DISCUSSIONS. THE STATUTE
SPECIFICALLY REFERS TO "FORMAL" DISCUSSIONS, AND THE LEGISLATIVE HISTORY
CLEARLY INDICATES CONGRESSIONAL INTENT NOT TO EXTEND THE APPLICATION OF
THIS SECTION TO PERSONAL, INFORMAL MEETINGS. /2/
THEREFORE, THE ISSUE TO BE RESOLVED IS WHETHER THE DISCUSSIONS IN
QUESTION WERE FORMAL OR INFORMAL. IF THEY WERE FORMAL, NTEU SHOULD HAVE
BEEN GIVEN AN OPPORTUNITY TO BE REPRESENTED; IF THEY WERE INFORMAL, NO
RIGHT ATTACHED. THE AUTHORITY HAS FOUND MEETINGS TO BE "FORMAL
DISCUSSIONS" WHERE, FOR EXAMPLE, MANAGEMENT REPRESENTATIVES HAVE CALLED
MEETINGS WITH EMPLOYEES AT WHICH ATTENDANCE WAS MANDATORY AND AN AGENDA
HAD BEEN ESTABLISHED BY MANAGEMENT TO DISCUSS A NUMBER OF MATTERS
INVOLVING GENERAL CONDITIONS OF EMPLOYMENT OR SPECIFIC CHANGES IN JOB
DUTIES. /3/ HOWEVER, THE AUTHORITY HAS RECOGNIZED THAT NOT ALL
DISCUSSIONS BETWEEN REPRESENTATIVES OF AGENCY MANAGEMENT AND UNIT
EMPLOYEES ARE FORMAL DISCUSSIONS WITHIN THE MEANING OF SECTION
7114(A)(2)(A). /4/ FOR EXAMPLE, THE AUTHORITY HAS HELD THAT CERTAIN
TYPES OF "INFORMATION GATHERING" ACTIVITIES ARE NOT "FORMAL DISCUSSIONS"
UNDER SECTION 7114(A)(2)(A) OF THE STATUTE. /5/ IN THE INSTANT CASES,
FOR EXAMPLE, ATTENDANCE OF THE EMPLOYEES AT THE MEETINGS WAS NOT
MANDATORY AND AN AGENDA HAD NOT BEEN ESTABLISHED BY MANAGEMENT TO
DISCUSS MATTERS INVOLVING GENERAL CONDITIONS OF EMPLOYMENT OR SPECIFIC
CHANGES IN JOB DUTIES. UNDER THE FACTS AS STIPULATED, THE AUTHORITY IS
UNWILLING TO FIND THE EXISTENCE OF A FORMAL DISCUSSION WITHIN THE
MEANING OF SECTION 7114(A)(2)(A) OF THE STATUTE AND APPLICABLE AUTHORITY
PRECEDENT.
IN THE CIRCUMSTANCES HEREIN, THE AUTHORITY CONCLUDES THAT THE
ABOVE-DESCRIBED MEETINGS DID NOT CONSTITUTE FORMAL DISCUSSIONS WITHIN
THE MEANING OF SECTION 7114(A)(2)(A) OF THE STATUTE. RATHER, THEY WERE
FACT-GATHERING SESSIONS BETWEEN A REPRESENTATIVE OF THE RESPONDENT AND A
UNIT EMPLOYEE WHEREIN MANAGEMENT WAS MERELY SEEKING INFORMATION TO AID
IN THE PREPARATION OF ITS CASES FOR PRESENTATION AT PROCEEDINGS BEFORE A
THIRD-PARTY NEUTRAL, IN THE SAME MANNER AS AN EXCLUSIVE REPRESENTATIVE
MAY GATHER THE FACTS FROM EMPLOYEES PRIOR TO SUCH PROCEEDINGS.
THEREFORE, THE RESPONDENT WAS NOT REQUIRED TO GIVE NTEU AN OPPORTUNITY
TO BE REPRESENTED AND ITS FAILURE TO DO SO HEREIN DID NOT CONSTITUTE AN
UNFAIR LABOR PRACTICE.
IT MUST BE EMPHASIZED, HOWEVER, THAT AN AGENCY MAY NOT CONDUCT SUCH
FACT-GATHERING SESSIONS WITHOUT LIMITATION. THUS, WHILE MANAGEMENT MAY
ASCERTAIN FACTS IN PREPARING ITS CASE FOR THIRD-PARTY PROCEEDINGS
WITHOUT THE PRESENCE OF THE EXCLUSIVE REPRESENTATIVE, THE UNIT EMPLOYEES
HAVE THE PROTECTED RIGHT UNDER SECTION 7102 OF THE STATUTE TO "FORM,
JOIN, OR ASSIST ANY LABOR ORGANIZATION, OR TO REFRAIN FROM SUCH
ACTIVITY, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL(.)"
ACCORDINGLY, WHERE MANAGEMENT EXERCISES ITS RIGHT TO INTERVIEW UNIT
EMPLOYEES IN PREPARATION FOR THIRD-PARTY PROCEEDINGS, BUT DOES NOT TAKE
NECESSARY PRECAUTIONS TO PRESERVE EMPLOYEES' PROTECTED RIGHTS, AND
INSTEAD ACTS IN A MANNER WHICH "INTERFERES WITH, RESTRAINS, OR COERCES"
THE EMPLOYEES, IT VIOLATES SECTION 7116(A)(1) OF THE STATUTE. TO
PROTECT EMPLOYEES' RIGHTS UNDER SECTION 7102 WHILE MANAGEMENT ATTEMPTS
TO ASCERTAIN NECESSARY FACTS, THE AUTHORITY CONCLUDES THAT (1)
MANAGEMENT MUST INFORM THE EMPLOYEE WHO IS TO BE QUESTIONED OF THE
PURPOSE OF THE QUESTIONING, ASSURE THE EMPLOYEE THAT NO REPRISAL WILL
TAKE PLACE IF HE OR SHE REFUSES, AND OBTAIN THE EMPLOYEE'S PARTICIPATION
ON A VOLUNTARY BASIS; (2) THE QUESTIONING MUST OCCUR IN A CONTEXT WHICH
IS NOT COERCIVE IN NATURE; AND (3) THE QUESTIONS MUST NOT EXCEED THE
SCOPE OF THE LEGITIMATE PURPOSE OF THE INQUIRY OR OTHERWISE INTERFERE
WITH THE EMPLOYEE'S STATUTORY RIGHTS. IN THIS MANNER, THE NECESSARY
BALANCE BETWEEN THE RIGHTS OF MANAGEMENT AND THE RIGHTS OF EMPLOYEES AND
THEIR EXCLUSIVE REPRESENTATIVES WILL BEST BE PRESERVED.
APPLYING THE FOREGOING PRINCIPLES TO THE FACTS AND CIRCUMSTANCES OF
THE INSTANT CASE, THE AUTHORITY CONCLUDES THAT THE MANNER IN WHICH THE
RESPONDENT QUESTIONED THE EMPLOYEES IN PREPARATION FOR THE UNFAIR LABOR
PRACTICE AND ARBITRATION HEARINGS DID NOT VIOLATE SECTION 7116(A)(1) OF
THE STATUTE. PRIOR TO INTERVIEWING EACH OF THE EMPLOYEES HEREIN, THE
RESPONDENT'S REPRESENTATIVE INFORMED THE EMPLOYEE THAT THE PURPOSE OF
THE INTERVIEW WAS TO PREPARE THE RESPONDENT'S POSITION FOR THE UPCOMING
HEARINGS, THAT THE EMPLOYEE WAS UNDER NO OBLIGATION TO SUBMIT TO THE
INTERVIEW, AND THAT THE EMPLOYEE FACED NO REPRISAL FROM AGENCY
MANAGEMENT REGARDLESS OF WHETHER THE EMPLOYEE AGREED TO BE INTERVIEWED.
THE GENERAL COUNSEL HAS NOT ESTABLISHED THAT THE QUESTIONING HEREIN WAS
CONDUCTED IN A COERCIVE CONTEXT OR EXCEEDED ITS LEGITIMATE SCOPE AND
PURPOSES OR OTHERWISE INTERFERED WITH EACH EMPLOYEE'S STATUTORY RIGHTS.
IN SUMMARY, THE AUTHORITY FINDS THAT THE RESPONDENT NEITHER
UNLAWFULLY DENIED NTEU THE OPPORTUNITY TO BE PRESENT AT THE INSTANT
INTERVIEWS BETWEEN MANAGEMENT'S REPRESENTATIVES AND BARGAINING UNIT
EMPLOYEES, NOR UNLAWFULLY QUESTIONED ITS EMPLOYEES, AND THEREFORE DID
NOT VIOLATE SECTION 7116(A)(1), (5) OR (8) OF THE STATUTE AS ALLEGED IN
THE COMPLAINTS. THEREFORE, SUCH COMPLAINTS SHALL BE DISMISSED IN THEIR
ENTIRETY.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINTS IN CASE NOS. 2-CA-114 AND
2-CA-120 BE, AND THEY HEREBY ARE, DISMISSED.
ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ SECTION 7114(A)(2)(A) PROVIDES THAT:
(2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
SHALL BE GIVEN THE
OPPORTUNITY TO BE REPRESENTED AT--
(A) ANY FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE
AGENCY AND ONE OR MORE
EMPLOYEES IN THE UNIT OF THEIR REPRESENTATIVES CONCERNING ANY
GRIEVANCE OR ANY PERSONNEL
POLICY OR PRACTICES OR OTHER GENERAL CONDITION OF EMPLOYMENT . . . .
/2/ REPRESENTATIVE CLAY OF MISSOURI PROVIDED THE FOLLOWING
EXPLANATION FOR THE ADDITION OF THE WORD "FORMAL" DURING DEBATE ON THE
HOUSE FLOOR OF THE "UDALL SUBSTITUTE" WHICH BECAME THE FINAL HOUSE
VERSION OF TITLE VII AND, AS RELEVANT HEREIN, WAS ENACTED:
THE WORD "FORMAL" WAS INSERTED BEFORE "DISCUSSIONS" IN ORDER TO MAKE
CLEAR THE INTENTION
THAT THIS SUBSECTION DOES NOT REQUIRE THAT AN EXCLUSIVE
REPRESENTATIVE BE PRESENT DURING
HIGHLY PERSONAL, INFORMAL MEETINGS SUCH AS COUNSELING SESSIONS . . .
.
124 CONG.REC. 29187(1978).
/3/ SEE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REGION IV,
ATLANTA, GEORGIA AND DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGION IV,
5 FLRA NO. 58(1981). SEE ALSO, NORFOLK NAVAL SHIPYARD, PORTSMOUTH,
VIRGINIA, 6 FLRA NO. 22(1981).
/4/ SEE OFFICE OF PROGRAM OPERATIONS, FIELD OPERATIONS, SOCIAL
SECURITY ADMINISTRATION, SAN FRANCISCO REGION, 9 FLRA NO. 9(1982).
/5/ SEE KAISERSLAUTERN AMERICAN HIGH SCHOOL, DEPARTMENT OF DEPENDENTS
SCHOOLS, GERMANY NORTH REGION, 9 FLRA NO. 28(1982).
9 FLRA 131; FLRA O-AR-387; AUGUST 16, 1982.
DEFENSE MAPPING AGENCY,
HYDROGRAPHIC/TOPOGRAPHIC
CENTER
ACTIVITY
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3407, AFL-CIO
UNION
CASE NO. O-AR-387
DECISION
THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR J. HARVEY DALY FILED BY THE UNION UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND
PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS. THE ACTIVITY FILED
AN OPPOSITION.
THE DISPUTE IN THIS MATTER CONCERNS THE ACTIVITY'S FILLING OF
POSITIONS UNDER POSITION VACANCY ANNOUNCEMENTS (PVA) 80-243 AND 81-75.
GRIEVANCES WERE FILED ON BEHALF OF TWO EMPLOYEES THAT WERE ULTIMATELY
SUBMITTED TO ARBITRATION CLAIMING THAT THE PROCEDURES USED IN FILLING
THESE POSITIONS WERE CONTRARY TO GOVERNING REGULATIONS.
AT THE OUTSET THE ARBITRATOR DETERMINED THAT THE GRIEVANCE RELATING
TO PVA 80-243 WAS NOT TIMELY FILED AND THEREFORE WAS NOT ARBITRABLE. AS
HIS AWARD ON THE MERITS, THE ARBITRATOR DETERMINED THAT THE GRIEVANTS
HAD BEEN PROPERLY CONSIDERED WITH RESPECT TO PVA 81-75 AND THAT THEY
SHOULD NOT BE GRANTED PRIORITY CONSIDERATION.
THE UNION FILED EXCEPTIONS TO THE AWARD STATING ONLY THAT THE AWARD
WAS DEFICIENT BECAUSE:
1. THE ARBITRATOR EXCEEDED HIS AUTHORITY.
2. THE AWARD WAS NOT BASED UPON THE CLEARLY PROVEN FACTS PRESENTED
AT THE HEARING.
3. THE ARBITRATOR WAS BIASED AND FAILED TO CONDUCT A FAIR HEARING BY
REFUSING TO HEAR AND ACCEPT PERTINENT AND MATERIAL EVIDENCE.
IN CONJUNCTION WITH THIS STATEMENT, THE UNION REQUESTED AN EXTENSION
OF TIME TO JUNE 7, 1982 TO FILE A BRIEF CONTAINING ARGUMENTS AND
CITATIONS OF AUTHORITY IN SUPPORT OF THE STATED GROUNDS IN THE
EXCEPTIONS. HOWEVER, NO SUCH BRIEF WAS FILED. BECAUSE THE BARE
STATEMENT OF GROUNDS IN THE UNION'S EXCEPTIONS FAILS TO DEMONSTRATE IN
WHAT MANNER THE AWARD IS DEFICIENT AS ASSERTED BY THE UNION, THE UNION'S
EXCEPTIONS PROVIDE NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER
SECTION 7122(A)(2) OF THE STATUTE. CONSEQUENTLY, THE UNION'S EXCEPTIONS
ARE DENIED.
ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
9 FLRA 130; FLRA O-AR-287; AUGUST 16, 1982.
U.S. DEPARTMENT OF
JUSTICE, BUREAU OF
PRISONS, RAYBROOK,
NEW YORK
ACTIVITY
AND
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
COUNCIL OF PRISON LOCALS
UNION
CASE NO. O-AR-287
DECISION
THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
ARBITRATOR DAVID C. RANDLES FILED BY THE UNION UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND
PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS. THE AGENCY FILED AN
OPPOSITION.
THIS MATTER CONCERNS THE SEPARATION OF THE GRIEVANT DURING HIS
PROBATIONARY PERIOD. A GRIEVANCE PROTESTING THE SEPARATION WAS FILED
AND ULTIMATELY SUBMITTED TO ARBITRATION. THE ACTIVITY CLAIMED THE
MATTER WAS NOT ARBITRABLE.
THE ARBITRATOR DETERMINED THAT THE LANGUAGE OF THE PARTIES'
COLLECTIVE BARGAINING AGREEMENT EXCLUDED FROM COVERAGE BY THE NEGOTIATED
GRIEVANCE PROCEDURE GRIEVANCES OVER THE SEPARATION OF PROBATIONARY
EMPLOYEES. ACCORDINGLY, AS HIS AWARD THE ARBITRATOR DISMISSED THE
GRIEVANCE AS NOT BEING ARBITRABLE.
IN ITS EXCEPTION THE UNION CONTENDS THAT THE AWARD IS BASED ON A
NONFACT. IN SUPPORT THE UNION PRINCIPALLY ARGUES THAT THE ARBITRATOR
MISUNDERSTOOD THE EFFECT OF EXECUTIVE ORDER NO. 11491 ON THIS CASE AND
SUCH MISUNDERSTANDING RESULTED IN THE APPLICATION OF AN ERRONEOUS RULE
OF CONTRACT CONSTRUCTION BUT FOR WHICH THE AWARD WOULD HAVE BEEN
DIFFERENT.
AS HAS BEEN NOTED, THE ARBITRATOR EXPRESSLY DETERMINED THAT THE
PARTIES' COLLECTIVE BARGAINING AGREEMENT EXCLUDED GRIEVANCES OVER THE
SEPARATION OF PROBATIONARY EMPLOYEES FROM COVERAGE BY THE NEGOTIATED
GRIEVANCE PROCEDURE. THUS, THE UNION'S EXCEPTION CONSTITUTES NOTHING
MORE THAN DISAGREEMENT WITH THE ARBITRATOR'S INTERPRETATION OF THE
PARTIES' AGREEMENT TO FIND THAT THE GRIEVANCE BEFORE HIM WAS NOT
ARBITRABLE, AND CONSEQUENTLY THE EXCEPTION PROVIDES NO BASIS FOR FINDING
THE AWARD DEFICIENT. SAN ANTONIO AIR LOGISTICS CENTER, KELLY AIR FORCE
BASE, SAN ANTONIO, TEXAS AND AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1617, 9 FLRA NO. 44(1982); U.S. DEPARTMENT OF
LABOR AND NATIONAL COUNCIL OF FIELD LABOR LOCALS, LOCAL 644, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, 6 FLRA NO. 61(1981). ACCORDINGLY,
THE UNION'S EXCEPTION IS DENIED.
ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
9 FLRA 129; FLRA 0-AR-286; AUGUST 16, 1982.
SOCIAL SECURITY ADMINISTRATION,
GREAT LAKES PROGRAM SERVICE CENTER
ACTIVITY
AND
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1395
UNION
CASE NO. O-AR-286
DECISION
THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
ARBITRATOR ANNE HARMON MILLER FILED BY THE UNION UNDER SECTION 7122(A)
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE)
AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS. THE AGENCY
FILED AN OPPOSITION.
THIS MATTER CONCERNS THE SEPARATION OF THE GRIEVANT DURING HIS
PROBATIONARY PERIOD. A GRIEVANCE WAS FILED AND ULTIMATELY SUBMITTED TO
ARBITRATION. THE ACTIVITY CLAIMED THE MATTER WAS NOT ARBITRABLE.
THE ARBITRATOR DETERMINED THAT UNDER THE PARTIES' COLLECTIVE
BARGAINING AGREEMENT GRIEVANCES OVER THE SEPARATION OF PROBATIONARY
EMPLOYEES WERE NOT COVERED BY THE NEGOTIATED GRIEVANCE PROCEDURE.
ACCORDINGLY, AS HER AWARD THE ARBITRATOR DISMISSED THE GRIEVANCE AS NOT
BEING ARBITRABLE.
IN ITS EXCEPTION THE UNION CONTENDS THAT THE AWARD IS DEFICIENT
BECAUSE THE GRIEVANCE IN "THIS CASE IS IN FACT ARBITRABLE." IN SUPPORT
THE UNION PRINCIPALLY ARGUES THAT THERE IS NO SPECIFIC EXCLUSION IN THE
PARTIES' AGREEMENT PROHIBITING GRIEVANCES OVER THE SEPARATION OF
PROBATIONARY EMPLOYEES AND THAT CONSEQUENTLY SUCH GRIEVANCES ARE
ARBITRABLE.
AS HAS BEEN NOTED, THE ARBITRATOR EXPRESSLY DETERMINED THAT UNDER THE
PARTIES' COLLECTIVE BARGAINING AGREEMENT GRIEVANCES OVER THE SEPARATION
OF PROBATIONARY EMPLOYEES WERE NOT COVERED BY THE NEGOTIATED GRIEVANCE
PROCEDURE. THUS, THE UNION'S EXCEPTION CONSTITUTES NOTHING MORE THAN
DISAGREEMENT WITH THE ARBITRATOR'S INTERPRETATION OF THE PARTIES'
AGREEMENT TO FIND THAT THE GRIEVANCE BEFORE HER WAS NOT ARBITRABLE, AND
CONSEQUENTLY THE EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD
DEFICIENT. SAN ANTONIO AIR LOGISTICS CENTER, KELLY AIR FORCE BASE, SAN
ANTONIO, TEXAS AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, ALF-CIO,
LOCAL 1617, 9 FLRA NO. 44(1981); U.S. DEPARTMENT OF LABOR AND NATIONAL
COUNCIL OF FIELD LABOR LOCALS, LOCAL 644, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, 6 FLRA NO. 61(1981). ACCORDINGLY, THE UNION'S
EXCEPTION IS DENIES.
ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
9 FLRA 128; FLRA 0-AR-220; AUGUST 16, 1982.
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1857
UNION
AND
SACRAMENTO AIR LOGISTICS
CENTER, MCCLELLAN AIR FORCE
BASE, CALIFORNIA
ACTIVITY
CASE NO. O-AR-220
DECISION
THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR LEO V. KILLION FILED BY THE UNION UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND
PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS. THE AGENCY FILED AN
OPPOSITION.
THE PARTIES IN THIS CASE SUBMITTED TO ARBITRATION THE ISSUE OF
WHETHER THE WORK PERFORMED BY EMPLOYEES IN THE VARIOUS WORK PROCESSES OF
THE ACTIVITY'S FUEL TEST AREA WARRANTED THE PAYMENT OF AN ENVIRONMENTAL
DIFFERENTIAL UNDER CATEGORY 4 (POISONS (TOXIC CHEMICALS)-- HIGH DEGREE
HAZARD) OR CATEGORY 5 (POISONS (TOXIC CHEMICALS)-- LOW DEGREE HAZARD) OR
UNDER CATEGORY 9 (WORK IN FUEL STORAGE TANKS) OF APPENDIX J, PART II OF
FEDERAL PERSONNEL MANUAL SUPPLEMENT 532-1. AFTER REVIEWING ALL OF THE
EVIDENCE, THE ARBITRATOR DETERMINED THAT THE WORK PERFORMED DID NOT
WARRANT THE PAYMENT OF AN ENVIRONMENTAL DIFFERENTIAL. WITH RESPECT TO
CATEGORY 9, THE ARBITRATOR DETERMINED THAT THE WORK IN AN AIRCRAFT FUEL
TANK DID NOT FIT THE DESCRIPTION OF A FUEL STORAGE TANK. WITH RESPECT
TO CATEGORY 4 AND CATEGORY 5, THE ARBITRATOR DETERMINED THAT THE
EMPLOYEES DID NOT WORK WITH TOXIC CHEMICALS WITHIN THE MEANING OF THESE
CATEGORIES. MOREOVER, HE DETERMINED THAT IN ANY EVENT AN ENVIRONMENTAL
DIFFERENTIAL WAS NOT WARRANTED UNDER THESE CATEGORIES BECAUSE THE
POTENTIAL FOR INJURY HAD BEEN PRACTICALLY ELIMINATED BY PROTECTIVE
DEVICES AND/OR SAFETY MEASURES. ACCORDINGLY, AS HIS AWARD THE
ARBITRATOR DENIED THE GRIEVANCE REQUESTING ENVIRONMENTAL DIFFERENTIAL
PAY.
IN ITS EXCEPTIONS THE UNION CONTENDS THAT THE AWARD IS DEFICIENT TO
THE EXTENT IT DENIES AN ENVIRONMENTAL DIFFERENTIAL UNDER EITHER CATEGORY
4 OR CATEGORY 5 FOR EXPOSURE TO TOXIC CHEMICALS. SPECIFICALLY, THE
UNION CONTENDS THAT THE AWARD IN THIS RESPECT IS CONTRARY TO FPM
SUPPLEMENT 532-1 AND IS BASED ON A NONFACT. THE UNION ARGUES THAT THE
ARBITRATOR ERRONEOUSLY FOUND THAT THE EMPLOYEES DID NOT WORK WITH TOXIC
CHEMICALS WITHIN THE MEANING OF APPENDIX J AND ERRONEOUSLY CONCLUDED
THAT AN ENVIRONMENTAL DIFFERENTIAL FOR EXPOSURE TO TOXIC CHEMICALS WAS
NOT WARRANTED UNDER FPM SUPPLEMENT 532-1.
THE UNION'S EXCEPTIONS PROVIDE NO BASIS FOR FINDING THE AWARD
DEFICIENT. IT IS WELL ESTABLISHED THAT THE SPECIFIC WORK SITUATIONS FOR
WHICH AN ENVIRONMENTAL DIFFERENTIAL IS PAYABLE ARE LEFT TO LOCAL
DETERMINATION, INCLUDING ARBITRATION. E.G., NAVAL WEAPONS STATION,
YORKTOWN, VIRGINIA AND NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
LOCAL R4-1, 6 FLRA NO. 47(1981); VETERANS ADMINISTRATION MEDICAL
CENTER, FORT HOWARD AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2146, 5 FLRA NO. 31(1981). IN THIS CASE THE ARBITRATOR
FOUND AS TO THE DISPUTED LOCAL WORK SITUATIONS THAT THE PAYMENT OF AN
ENVIRONMENTAL DIFFERENTIAL WAS NOT WARRANTED UNDER FPM SUPPLEMENT 532-1.
THUS, THE UNION'S EXCEPTIONS DO NOT ESTABLISH THAT THE AWARD IS
CONTRARY TO FPM SUPPLEMENT 532-1 OR IS BASED ON A NONFACT. ACCORDINGLY,
THE EXCEPTIONS ARE DENIED.
ISSUED WASHINGTON, D.C., AUGUST 16, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
9 FLRA 127; FLRA O-NG-625; AUGUST 12, 1982.
PRODUCTION, MAINTENANCE, AND PUBLIC
EMPLOYEES UNION, LOCAL NO. 1276,
AFFILIATED WITH LIUNA, ALF-CIO
(UNION)
AND
DEFENSE LOGISTICS AGENCY,
DEFENSE DEPOT TRACY,
TRACY, CALIFORNIA
(AGENCY)
CASE NO. O-NG-625
ORDER DISMISSING PETITION FOR REVIEW
THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO SECTION 7105(A)(2)(E)
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE AND SECTION
2424.1 OF THE AUTHORITY'S RULES AND REGULATIONS ON A PETITION FOR REVIEW
OF NEGOTIABILITY ISSUES FILED BY THE UNION. FOR THE REASONS INDICATED
BELOW, IT HAS BEEN DETERMINED THAT THE UNION'S PETITION FOR REVIEW WAS
UNTIMELY FILED AND THEREFORE MUST BE DISMISSED.
FOR THE SUBMISSIONS OF THE PARTIES IN THE RECORD BEFORE THE
AUTHORITY, IT APPEARS THAT DURING THE COURSE OF NEGOTIATIONS CONCERNING
CERTAIN ASPECTS OF THE AGENCY'S UPWARD MOBILITY PROGRAM A DISPUTE AROSE
WITH RESPECT TO A NUMBER OF THE UNION'S PROPOSALS. AFTER EFFORTS OF THE
FEDERAL MEDIATION AND CONCILIATION SERVICE PROVED UNSUCCESSFUL IN
RESOLVING THE DISPUTE, THE UNION FILED A REQUEST FOR ASSISTANCE WITH THE
FEDERAL SERVICE IMPASSES PANEL. IN RESPONSE TO A REQUEST FROM THE PANEL
FOR A WRITTEN STATEMENT OF POSITION REGARDING THE DISPUTED PROPOSALS,
THE AGENCY, BY LETTER OF NOVEMBER 4, 1981, NOTIFIED THE PANEL THAT IT
CONSIDERED THE PROPOSALS TO BE NONNEGOTIABLE. IN A SEPARATE LETTER TO
THE UNION ON THE SAME DATE, THE AGENCY NOTIFIED THE UNION THAT IT HAD
DETERMINED THAT THE UNION'S PROPOSALS WERE NONNEGOTIABLE AND ALSO SERVED
A COPY OF ITS DETAILED STATEMENT TO THE PANEL ON THE UNION. THE PANEL
SUBSEQUENTLY DECLINED TO ASSERT JURISDICTION OVER THE MATTER IN VIEW OF
THE NEGOTIABILITY QUESTION RAISED BY THE AGENCY. ON DECEMBER 22, 1981,
THE UNION FILED THE INSTANT PETITION FOR REVIEW OF THE NEGOTIABILITY
ISSUES WITH THE AUTHORITY.
SECTION 2424.3 OF THE AUTHORITY'S RULES AND REGULATIONS, WHICH
IMPLEMENTS SECTION 7117(C)(2) OF THE STATUTE, PROVIDES, IN PERTINENT
PART:
THE TIME LIMIT FOR FILING A PETITION FOR REVIEW IS FIFTEEN (15) DAYS
AFTER THE DATE THE
AGENCY'S ALLEGATION THAT THE DUTY TO BARGAIN IN GOOD FAITH DOES NOT
EXTEND TO THE MATTER
PROPOSED TO BE BARGAINED IS SERVED ON THE EXCLUSIVE REPRESENTATIVE.
THE EXCLUSIVE
REPRESENTATIVE SHALL REQUEST SUCH ALLEGATION IN WRITING AND THE
AGENCY SHALL MAKE THE
ALLEGATION IN WRITING AND SERVE A COPY ON THE EXCLUSIVE
REPRESENTATIVE . . . .
ADDITIONALLY, SECTION 2429.22 OF THE RULES AND REGULATIONS PROVIDES,
IN PERTINENT PART:
WHENEVER A PARTY HAS THE RIGHT OR IS REQUIRED TO DO SOME ACT . . .
WITHIN A PRESCRIBED
PERIOD AFTER SERVICE OF A NOTICE OR OTHER PAPER UPON SUCH PARTY, AND
THE NOTICE OR PAPER IS
SERVED ON SUCH PARTY BY MAIL, FIVE (5) DAYS SHALL BE ADDED TO THE
PRESCRIBED PERIOD: . . . .
IN A CASE SUCH AS HERE INVOLVED, WHERE A UNION IS SERVED WITH AN
ALLEGATION OF NONNEGOTIABILITY WHICH THE UNION HAD NOT REQUESTED IN
WRITING FROM THE AGENCY, THE UNION HAS A NUMBER OF POSSIBLE COURSES OF
ACTION. THUS, A UNION SERVED WITH AN UNREQUESTED ALLEGATION MAY, FOR
EXAMPLE, (1) CHOOSE TO FURTHER ATTEMPT TO REACH AGREEMENT WITH THE
AGENCY ON THE MATTER IN DISPUTE; OR, (2) AS PROVIDED UNDER SECTION
2424.3 OF THE AUTHORITY'S RULES AND REGULATIONS, EXERCISE ITS RIGHT TO
SUBMIT A WRITTEN REQUEST TO THE AGENCY FOR ANOTHER ALLEGATION AND TO
FILE A PETITION FOR REVIEW OF THE NEGOTIABILITY ISSUES WITH THE
AUTHORITY IN ACCORDANCE WITH SECTION 2424.3 WHEN THE AGENCY SUBSEQUENTLY
RESPONDS (OR FAILS TO RESPOND) TO THE WRITTEN REQUEST; OR, (3) AS THE
UNION HERE CHOSE TO DO, FILE AN APPEAL FROM THE UNREQUESTED ALLEGATION.
HOWEVER, IF THE UNION DECIDES TO FOLLOW THE LATTER COURSE OF ACTION, IT
MUST FILE ITS APPEAL WITHIN THE TIME LIMIT PRESCRIBED IN THE STATUTE AND
THE AUTHORITY'S RULES AND REGULATIONS.
IN THIS CASE, AS INDICATED ABOVE, THE AGENCY'S ALLEGATION OF
NONNEGOTIABILITY WAS NOT REQUESTED BY THE UNION, BUT RATHER, WAS
RENDERED IN RESPONSE TO A PANEL REQUEST. THE ALLEGATION WAS DATED
NOVEMBER 4, 1981, AND APPEARS TO HAVE BEEN SERVED ON THE UNION BY MAIL
ON THE SAME DATE. THEREFORE, UNDER SECTIONS 2424.3 AND 2429.22 OF THE
AUTHORITY'S RULES AND REGULATIONS, ANY APPEAL FROM THAT ALLEGATION HAD
TO BE FILED WITH THE AUTHORITY NO LATER THAN THE CLOSE OF BUSINESS ON
NOVEMBER 24, 1981, IN ORDER TO BE CONSIDERED TIMELY. SINCE THE UNION'S
INSTANT APPEAL WAS NOT FILED UNTIL DECEMBER 22, 1981, IT IS CLEARLY
UNTIMELY AND MUST BE DISMISSED.
ACCORDINGLY, IT IS ORDERED THAT THE UNION'S PETITION FOR REVIEW IN
THIS CASE BE, AND IT HEREBY IS, DISMISSED. IN VIEW OF THE FACT THAT THE
UNION APPEALED FROM AN UNREQUESTED ALLEGATION, THE DISMISSAL OF THE
PETITION IS WITHOUT PREJUDICE. THAT IS, IF THE MATTERS PROPOSED TO BE
NEGOTIATED CONTINUE IN DISPUTE BETWEEN THE PARTIES, AN ALLEGATION MAY BE
REQUESTED IN WRITING AND A PETITION FOR REVIEW DULY FILED BY THE UNION
WITH THE AUTHORITY IN ACCORDANCE WITH SECTION 2424.3 OF THE AUTHORITY'S
RULES AND REGULATIONS.
FOR THE AUTHORITY.
ISSUED, WASHINGTON, D.C., AUGUST 12, 1982
JAMES J. SHEPARD, EXECUTIVE DIRECTOR
9 FLRA 126; FLRA O-AR-409; AUGUST 12, 1982.
DEPARTMENT OF HUMAN SERVICES,
SOCIAL SECURITY ADMINISTRATION,
REGION IV, ATLANTA, GEORGIA
(ACTIVITY)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2268
(UNION)
CASE NO. O-AR-409
ORDER DISMISSING EXCEPTIONS
THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR SIDNEY SHERMAN FILED BY THE ACTIVITY PURSUANT TO SECTION
7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE AND
SECTION 2425.1 OF THE AUTHORITY'S RULES AND REGULATIONS. FOR THE
REASONS STATED BELOW, THE UNION'S EXCEPTIONS MUST BE DISMISSED AS
UNTIMELY.
UNDER SECTION 7122(B) OF THE STATUTE AND SECTION 2425.1(B) OF THE
AUTHORITY'S RULES AND REGULATIONS, THE TIME LIMIT FOR FILING AN
EXCEPTION TO AN ARBITRATION AWARD IS THIRTY DAYS BEGINNING ON AND
INCLUDING THE DATE ON THE AWARD. ADDITIONALLY, UNDER SECTION 2429.21 OF
THE RULES AND REGULATIONS, WHENEVER THE REGULATIONS REQUIRE THE FILING
OF A DOCUMENT, SUCH DOCUMENT MUST BE RECEIVED BY THE AUTHORITY BEFORE
THE CLOSE OF BUSINESS ON THE LAST DAY OF THE TIME LIMIT.
THE ARBITRATOR'S AWARD IN THIS CASE, AS INCLUDED IN THE ACTIVITY'S
SUBMISSION, IS DATED JUNE 8, 1982. THEREFORE, UNDER THE ABOVE-CITED
PROVISIONS, THE UNION'S EXCEPTIONS WERE DUE IN THE NATIONAL OFFICE OF
THE AUTHORITY BEFORE THE CLOSE OF BUSINESS ON JULY 7, 1982. HOWEVER,
THE UNION'S EXCEPTIONS WERE NOT FILED WITH THE AUTHORITY UNTIL JULY 9,
1982. IN THAT REGARD, THE AUTHORITY IS NOT EMPOWERED TO WAIVE OR EXTEND
THE TIME LIMIT FOR FILING EXCEPTIONS TO ARBITRATION AWARDS.
ACCORDINGLY, AS THE UNION'S EXCEPTIONS WERE UNTIMELY FILED, THE
EXCEPTIONS ARE HEREBY DISMISSED.
FOR THE AUTHORITY.
ISSUED, WASHINGTON, D.C., AUGUST 12, 1982
JAMES J. SHEPARD, EXECUTIVE DIRECTOR
9 FLRA 125; FLRA O-AR-404; AUGUST 12, 1982.
IMMIGRATION AND NATURALIZATION
SERVICE, U.S. DEPARTMENT OF JUSTICE
(ACTIVITY)
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2805, AFL-CIO
(UNION)
CASE NO. O-AR-404
ORDER DISMISSING EXCEPTIONS
THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR REGINALD ALLEYNE FILED BY THE UNION PURSUANT TO SECTION
7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE AND
SECTION 2425.1 OF THE AUTHORITY'S RULES AND REGULATIONS. FOR THE
REASONS STATED BELOW, THE UNION'S EXCEPTIONS MUST BE DISMISSED AS
UNTIMELY.
UNDER SECTION 7122(B) OF THE STATUTE AND SECTION 2425.1(B) OF THE
RULES AND REGULATIONS, THE TIME LIMIT FOR FILING AN EXCEPTION TO AN
ARBITRATION AWARD IS THIRTY DAYS BEGINNING ON AND INCLUDING THE DATE ON
THE AWARD. ADDITIONALLY, UNDER SECTION 2429.21 OF THE RULES AND
REGULATIONS, WHENEVER THE REGULATIONS REQUIRE THE FILING OF A DOCUMENT,
SUCH DOCUMENT MUST BE RECEIVED BY THE AUTHORITY BEFORE THE CLOSE OF
BUSINESS ON THE LAST DAY OF THE TIME LIMIT.
THE ARBITRATOR'S AWARD IN THIS CASE, AS INCLUDED IN THE UNION'S
SUBMISSION, IS DATED APRIL 29, 1982. THEREFORE, UNDER THE ABOVE-CITED
PROVISIONS, THE UNION'S EXCEPTIONS WERE DUE IN THE NATIONAL OFFICE OF
THE AUTHORITY BEFORE THE CLOSE OF BUSINESS ON MAY 28, 1982. HOWEVER,
THE UNION'S EXCEPTIONS, INITIALLY MISFILED WITH THE DEPARTMENT OF LABOR,
WERE NOT PROPERLY FILED WITH THE AUTHORITY UNTIL JUNE 22, 1982. IN THAT
REGARD, THE AUTHORITY IS NOT EMPOWERED TO EXTEND OR WAIVE THE TIME LIMIT
FOR FILING EXCEPTIONS TO ARBITRATION AWARDS.
ACCORDINGLY, AS THE UNION'S EXCEPTIONS WERE UNTIMELY FILED, THE
EXCEPTIONS ARE HEREBY DISMISSED.
FOR THE AUTHORITY.
ISSUED, WASHINGTON, D.C., AUGUST 12, 1982
JAMES J. SHEPARD, EXECUTIVE DIRECTOR
9 FLRA 124; FLRA 8-CA-786; AUGUST 6, 1982.
SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND
RESPONDENT
AND
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
CHARGING PARTY
CASE NO. 8-CA-786
DECISION AND ORDER
THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES
AND REGULATIONS.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
PARTIES' STIPULATION OF FACTS, THE AUTHORITY FINDS: /1/
AT ALL TIMES RELEVANT HEREIN, THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO (THE UNION) HAS BEEN THE CERTIFIED EXCLUSIVE
REPRESENTATIVE OF A UNIT WHICH INCLUDES CERTAIN OF THE RESPONDENT'S LOS
ANGELES DISTRICT OFFICE (LADO) EMPLOYEES.
THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1)
AND (5) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE
STATUTE) WHEN IT CONDUCTED "FEEDBACK" MEETINGS WITH UNIT EMPLOYEES
WHEREIN THE INPUT, OPINIONS, AND SENTIMENT OF THOSE EMPLOYEES CONCERNING
WORK PERFORMANCE GOALS WERE SOLICITED WITHOUT FIRST OBTAINING THE
CONSENT OF THE UNION.
ON OR ABOUT OCTOBER 7, 1980, ALEXANDER WOODS, A UNION REPRESENTATIVE
AT LADO, RECEIVED NOTICE FROM TWO SUPERVISORS IN THE
REDETERMIANTIONS/OPERATIONS (REDET/OP) UNIT OF A SCHEDULED MEETING TO
DISCUSS, AMONG OTHER THINGS, PERFORMANCE GOALS/STANDARDS WITH EMPLOYEES
ASSIGNED TO THAT UNIT. WOODS INFORMED ANOTHER UNION REPRESENTATIVE,
EDWARD BRONSON, OF THE PROPOSED MEETING. BRONSON, IN TURN, AND ON
BEHALF OF THE UNION, OBJECTED TO THE HOLDING OF THE "FEEDBACK" MEETING
WITH EMPLOYEES BECAUSE HE FELT THE UNION SHOULD BE THE PARTY TO OBTAIN
FEEDBACK FROM THEM. DESPITE THE UNION'S OBJECTIONS, THE FEEDBACK
MEETING WAS CONDUCTED ON OR ABOUT OCTOBER 8, 1980 BY THE TWO SUPERVISORS
WITH EMPLOYEES IN THE REDET/OP UNIT AT WHICH THE INPUT, OPINIONS, AND
SENTIMENT OF THE EMPLOYEES REGARDING WORK PERFORMANCE GOALS/STANDARDS
WERE SOLICITED. WOODS ATTENDED THE MEETING IN HIS CAPACITY AS UNION
REPRESENTATIVE. A SIMILAR MEETING WAS CONDUCTED IN THE SERVICE
REPRESENTATIVE (SR) UNIT ON OR ABOUT OCTOBER 20, 1980 DESPITE A SIMILAR
OBJECTION BY UNION REPRESENTATIVE BRONSON WHO HAD BEEN TOLD BY TWO
MANAGEMENT REPRESENTATIVES THAT THE SUPERVISORS INVOLVED IN THE MEETING
WOULD ONLY BE GETTING INPUT IN ORDER TO FORMULATE A PROPOSAL CONCERNING
PERFORMANCE GOALS/STANDARDS. BRONSON WAS IN ATTENDANCE AT THAT MEETING
IN HIS CAPACITY AS UNION REPRESENTATIVE. AS OF THE DATE OF THE
STIPULATION, NO NEW PERFORMANCE STANDARDS HAD BEEN ISSUED.
THE GENERAL COUNSEL CONTENDS THAT THE RESPONDENT'S ACTIONS
CONSTITUTED A REFUSAL TO BARGAIN WITH THE UNION IN DEROGATION OF THE
UNION'S STATUS AND RIGHTS AS EXCLUSIVE REPRESENTATIVE. THE RESPONDENT
CONTENDS THAT, BY HOLDING THE TWO MEETINGS IN QUESTION, IT WAS MERELY
EXERCISING ITS RIGHT UNDER 5 U.S.C. 4302(A)(2) ENACTED IN THE CIVIL
SERVICE REFORM ACT OF 1978 (SCRA) /2/ TO DEVELOP PERFORMANCE APPRAISAL
SYSTEMS WITH EMPLOYEE PARTICIPATION. THE RESPONDENT ALSO CONTENDS THAT
THE UNION'S INSISTENCE UPON BEING THE SOLE CONDUIT FOR INPUT RELATING TO
PERFORMANCE GOALS CONSTITUTES INTERFERENCE WITH THE RESPONDENT'S RIGHT
UNDER SECTION 7106 OF THE STATUTE TO ESTABLISH PERFORMANCE STANDARDS AND
TO DETERMINE ITS ORGANIZATION AND STAFFING PATTERNS AND MAINTAIN THE
EFFICIENCY AND EFFECTIVENESS OF ITS OPERATIONS. FURTHER, THE RESPONDENT
CONTENDS THAT THE MEETINGS HAD A DE MINIMIS IMPACT ON EMPLOYEES AND
THEREFORE CANNOT BE FOUND TO VIOLATE THE STATUTE.
THE AUTHORITY FINDS THAT THE RESPONDENT'S FAILURE AND REFUSAL TO GIVE
THE UNION AN OPPORTUNITY TO NEGOTIATE OVER THE MANNER IN WHICH
BARGAINING UNIT EMPLOYEES WOULD PARTICIPATE IN ESTABLISHING PERFORMANCE
STANDARDS CONSTITUTED A REFUSAL TO BARGAIN IN GOOD FAITH IN VIOLATION OF
SECTION 7116(A)(1) AND (5) OF THE STATUTE. THUS, AS THE AUTHORITY
STATED IN NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE
TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA 768(1980), APPEAL DOCKETED,
NO. 80-1895 (D.C. CIR. AUG. 4, 1980): /3/
CONSISTENT WITH THE INTENT OF CONGRESS AS EXPRESSED IN SECTION 7101
AND OTHER SECTIONS OF
THE STATUTE, PERFORMANCE APPRAISAL SYSTEMS, APART FROM THE
IDENTIFICATION OF CRITICAL ELEMENTS
AND THE ESTABLISHMENT OF PERFORMANCE STANDARDS, ARE WITHIN THE DUTY
TO BARGAIN, TO THE EXTENT
THEY ARE CONSISTENT WITH LAW AND REGULATION. TO THE EXTENT THAT AN
AGENCY HAS DISCRETION WITH
RESPECT TO A GIVEN MATTER RELATED TO SUCH SYSTEMS THE AGENCY MUST
UPON REQUEST NEGOTIATE WITH
AN EXCLUSIVE REPRESENTATIVE OVER THAT MATTER. IN PARTICULAR, AS
NOTED PREVIOUSLY, SECTION
4302(A)(2) OF THE CSRA REQUIRES THAT PERFORMANCE APPRAISAL SYSTEMS
"ENCOURAGE EMPLOYEE
PARTICIPATION IN ESTABLISHING PERFORMANCE STANDARDS" BUT DOES NOT
SPECIFY THE FORM WHICH SUCH
EMPLOYEE PARTICIPATION DOES NOT SPECIFY THE FORM WHICH SUCH EMPLOYEE
PARTICIPATION MUST
TAKE. CONSEQUENTLY, AMONG OTHER SIGNIFICANT ASPECTS OF PERFORMANCE
APPRAISAL SYSTEMS, THE
MANNER IN WHICH A PARTICULAR AGENCY PROVIDES FOR SUCH EMPLOYEE
PARTICIPATION IS WITHIN THE
AGENCY'S DISCRETION AND, THEREFORE, WITHIN THE DUTY TO BARGAIN TO THE
EXTENT THAT IT WOULD NOT
PREVENT THE AGENCY FROM ESTABLISHING PERFORMANCE STANDARDS AND
CRITICAL ELEMENTS PURSUANT TO
ITS STATUTORY RIGHTS TO DIRECT EMPLOYEES AND ASSIGN WORK. (FOOTNOTES
OMITTED.)
ACCORDINGLY, WHILE SECTION 4302 MAKES NO DISTINCTIONS BETWEEN AN
AGENCY'S RESPONSIBILITY TO ENCOURAGE PARTICIPATION BY EMPLOYEES WITHIN
UNITS OF EXCLUSIVE RECOGNITION AND UNREPRESENTED EMPLOYEES, THE STATUTE
REQUIRES AN AGENCY TO BARGAIN, UPON REQUEST, WITH THE EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES CONCERNING THE MANNER IN WHICH EMPLOYEE
PARTICIPATION IN ESTABLISHING PERFORMANCE STANDARDS SHALL BE PROVIDED.
IN THE INSTANT CASE, IT IS UNDISPUTED THAT THE RESPONDENT TWICE HELD
MEETINGS WITH UNIT EMPLOYEES TO OBTAIN "FEEDBACK" CONCERNING THE
ESTABLISHMENT OF PERFORMANCE STANDARDS DESPITE THE UNION'S EXPRESSED
OBJECTIONS TO THE HOLDING OF THE MEETINGS. BY SUCH CONDUCT, THE
RESPONDENT UNILATERALLY DETERMINED, THEREBY DENYING THE UNION AN
OPPORTUNITY TO BARGAIN ABOUT, THE MANNER IN WHICH EMPLOYEE PARTICIPATION
IN THE ESTABLISHMENT OF PERFORMANCE STANDARDS WOULD BE PROVIDED. SUCH
CONDUCT THEREFORE CONSTITUTED A VIOLATION OF SECTION 7116(A)(1) AND (5)
OF THE STATUTE. /4/
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE SOCIAL SECURITY ADMINISTRATION,
BALTIMORE, MARYLAND, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO NEGOTIATE WITH THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF THE
RESPONDENT'S EMPLOYEES, CONCERNING THE MANNER IN WHICH SUCH UNIT
EMPLOYEES WILL PARTICIPATE IN THE ESTABLISHMENT OF PERFORMANCE
STANDARDS.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) NOTIFY AND, TO THE EXTENT CONSONANT WITH LAW AND REGULATION,
BARGAIN UPON REQUEST WITH THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF THE
RESPONDENT'S EMPLOYEES, CONCERNING THE MANNER IN WHICH SUCH UNIT
EMPLOYEES WILL PARTICIPATE IN THE ESTABLISHMENT OF PERFORMANCE
STANDARDS.
(B) POST AT ITS FACILITIES LOCATED AT THE LOS ANGELES DISTRICT
OFFICE, LOS ANGELES, CALIFORNIA, COPIES OF THE ATTACHED NOTICE ON FORMS
TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT
OF SUCH FORMS, THEY SHALL BE SIGNED BY THE DIRECTOR, LOS ANGELES
DISTRICT OFFICE, AND SHALL BE POSTED AND MAINTAINED BY THE DIRECTOR 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 MATERIAL.
(C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION VIII, FEDERAL LABOR
RELATIONS AUTHORITY, 350 SOUTH FIGUEROA STREET, 10TH FLOOR, LOS ANGELES,
CALIFORNIA, 90071, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., AUGUST 6, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE
HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REFUSE TO NEGOTIATE WITH THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF
OUR EMPLOYEES, CONCERNING THE MANNER IN WHICH SUCH UNIT EMPLOYEES WILL
PARTICIPATE IN THE ESTABLISHMENT OF PERFORMANCE STANDARDS.
WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL NOTIFY AND, TO THE EXTENT CONSONANT WITH LAW AND REGULATION,
BARGAIN UPON REQUEST WITH THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF OUR
EMPLOYEES, CONCERNING THE MANNER IN WHICH SUCH UNIT EMPLOYEES WILL
PARTICIPATE IN THE ESTABLISHMENT OF PERFORMANCE STANDARDS.
(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 QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION VIII, WHOSE ADDRESS
IS: 350 SOUTH FIGUEROA STREET, 10TH FLOOR, LOS ANGELES, CALIFORNIA,
90071, AND WHOSE TELEPHONE NUMBER IS: (213) 688-3805.
/1/ THE GENERAL COUNSEL HAS MOVED TO STRIKE CERTAIN PORTIONS OF THE
RESPONDENT'S BRIEF ON THE GROUNDS THAT THOSE PORTIONS PRESENT MATTERS
WHICH GO BEYOND THE FACTS STIPULATED BY THE PARTIES. THE RESPONDENT HAS
FILED AN OPPOSITION TO THE MOTION AS WELL AS A CROSS-MOTION TO STRIKE
AND DISMISS THE GENERAL COUNSEL'S MOTION TO STRIKE. IN ANY MATTER
SUBMITTED DIRECTLY TO AND ACCEPTED BY THE AUTHORITY FOR DECISION BASED
UPON A STIPULATION OF FACTS, THE AUTHORITY WILL CONSIDER ONLY FACTS
CONTAINED IN THE STIPULATION. ACCORDINGLY, THE AUTHORITY DENIES THE
GENERAL COUNSEL'S MOTION TO STRIKE, AND FINDS IT UNNECESSARY TO PASS
UPON THE RESPONDENT'S OPPOSITION AND CROSS-MOTION.
/2/ SEC. 4302. ESTABLISHMENT OF PERFORMANCE APPRAISAL SYSTEMS
(A) EACH AGENCY SHALL DEVELOP ONE OR MORE PERFORMANCE APPRAISAL
SYSTEMS WHICH--
(2) ENCOURAGE EMPLOYEE PARTICIPATION IN ESTABLISHING PERFORMANCE
STANDARDS(.)
/3/ SEE ALSO AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 32 AND OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C. 3 FLRA
783(1980).
/4/ SUCH CONDUCT IS NOT RENDERED DE MINIMIS BY THE FACT THAT THE
RESPONDENT HAD NOT PROMULGATED PERFORMANCE STANDARDS AS OF THE DATE OF
THE PARTIES' STIPULATION OF FACTS.
9 FLRA 123; FLRA 6-CA-615; AUGUST 6, 1982.
VETERANS ADMINISTRATION, VETERANS
ADMINISTRATION MEDICAL CENTER,
FAYETTEVILLE, ARKANSAS
RESPONDENT
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2201, AFL-CIO
CHARGING PARTY
CASE NO. 6-CA-615
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED 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. THEREAFTER, THE GENERAL COUNSEL FILED
EXCEPTIONS TO THE JUDGE'S DECISION AND THE RESPONDENT FILED AN
OPPOSITION THERETO.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND THE ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS. /1/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 6-CA-615 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., AUGUST 6, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
CHARLES J. PUGH, ESQ.
FOR THE RESPONDENT
SUSAN E. JELEN, ESQ.
FOR THE GENERAL COUNSEL
BEFORE: ALAN W. HEIFETZ
ADMINISTRATIVE LAW JUDGE
CASE NO. 6-CA-615
DECISION
STATEMENT OF THE CASE
THIS PROCEEDING AROSE PURSUANT TO THE FEDERAL SERVICE
LABOR-MANAGEMENT STATUTE, 5 U.S.C. 7101 ET SEQ., AS A RESULT OF AN
UNFAIR LABOR PRACTICE CHARGE FILED JUNE 20, 1980, WITH THE FEDERAL LABOR
RELATIONS AUTHORITY. CONSEQUENTLY, ON AUGUST 29, 1980, THE REGIONAL
DIRECTOR, REGION VI, OF THE AUTHORITY ISSUED A COMPLAINT ALLEGING THAT
RESPONDENT HAS NOT PROMOTED DARREL W. EDENS, LEWIS CARR AND CLIFFORD
WARD TO THE POSITION OF FOOD SERVICE WORKER FOREMAN, WS-2, BECAUSE OF
THEIR UNION ACTIVITIES.
A HEARING WAS HELD ON JANUARY 6, 1981, IN FAYETTEVILLE, ARKANSAS.
ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE
WITNESSES AND TO INTRODUCE EVIDENCE. POST-HEARING BRIEFS HAVE BEEN
FILED AND CONSIDERED. UPON THE ENTIRE RECORD, INCLUDING MY OBSERVATION
OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS,
CONCLUSIONS AND RECOMMENDATION.
FINDINGS OF FACT
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2201
IS, AND AT ALL TIMES RELEVANT TO THIS PROCEEDING HAS BEEN THE EXCLUSIVE
BARGAINING REPRESENTATIVE FOR THE DIETETIC SERVICE, VETERANS
ADMINISTRATION MEDICAL CENTER, FAYETTEVILLE, ARKANSAS. THERE ARE
APPROXIMATELY FORTY EMPLOYEES IN THE DIETETIC SERVICE.
ON APRIL 14, 1980, VACANCY ANNOUNCEMENT NO. 80-17, FOOD SERVICE
WORKER FOREMAN, WS-2, DIETETIC SERVICE, WAS POSTED IN ACCORDANCE WITH
THE MERIT PROMOTION PLAN AND THE UNION CONTRACT. TEN OR ELEVEN
INDIVIDUALS APPLIED FOR THE JOB AND A MERIT PROMOTION PANEL WAS DULY
CONVENED TO DETERMINE WHICH APPLICANTS WOULD BE CERTIFIED TO THE
SELECTING OFFICIAL FOR CONSIDERATION. THE PANEL CERTIFIED SIX EMPLOYEES
AS QUALIFIED AND SUBMITTED THEIR NAMES TO DORIS CASSIDY, CHIEF OF THE
DIETETIC SERVICE FOR THE PAST TWELVE YEARS, WHO WAS THE SELECTING
OFFICIAL. THE SIX APPLICANTS WERE LEWIS CARR, DARREL W. EDENS, HOMER
GROSS AND CLIFFORD WARD, FROM THE FAYETTEVILLE STATION, AND IGOR
HUDDLESTON AND ROY LEE PARIS, FROM OUTSIDE THE FAYETTEVILLE STATION.
MRS. CASSIDY REQUESTED EACH APPLICANT'S SUPPLEMENTAL EXPERIENCE
STATEMENT FOR IN-SERVICE PLACEMENT. SHE ALSO REQUESTED THE ORIGINAL
APPLICATIONS FOR THE TWO OFF-STATION APPLICANTS. SHE DECIDED TO
CONSTRUCT A WORK SHEET AND MADE NOTATIONS OF EACH APPLICANT'S EDUCATION,
TRAINING, EXPERIENCE, AND LEAVE RECORDS. MRS. CASSIDY PERSONALLY
INTERVIEWED THE FOUR APPLICANTS LOCATED IN FAYETTEVILLE AND
TELEPHONICALLY INTERVIEWED THE OTHER TWO. FOLLOWING THE INTERVIEWS, SHE
SELECTED HOMER GROSS FOR THE VACANT POSITION AND NOTIFIED HIM IN WRITING
ON MAY 23, 1980.
REGARDING EDUCATION, GROSS, HUDDLESTON AND PARIS WERE THE ONLY
APPLICANTS WITH COLLEGE BACKGROUNDS. BOTH GROSS AND HUDDLESTON WERE
CONSIDERED TO HAVE VERY GOOD WRITTEN EXPRESSION. MRS. CASSIDY CONCLUDED
THAT CARR AND WARD COULD EXPRESS THEMSELVES FAIRLY WELL IN WRITTEN FORM
BUT THAT EDENS' WRITTEN SELF EXPRESSION WAS POOR. IN VERBAL EXPRESSION,
HUDDLESTON WAS RATED EXCELLENT; GROSS, VERY GOOD; CARR, WARD AND
PARIS, GOOD; AND EDENS, FAIR.
ALTHOUGH GROSS HAD WORKED ONLY TWO YEARS FOR RESPONDENT, MRS.
CASSIDY GAVE CONSIDERATION TO THE LEADERSHIP TRAINING HE HAD RECEIVED
AND THE LEADERSHIP TRAINING HE HAD TAUGHT SOME YEARS BEFORE. BOTH CARR
AND WARD HAD RECEIVED ON-THE-JOB TRAINING, BUT EDENS', WAS QUITE
LIMITED.
AS TO EXPERIENCE, GROSS HAD SUPERVISED UP TO AS MANY AS 160 OR SO
INDIVIDUALS. HE ALSO HAD EXPERIENCE DOCUMENTING JOB DESCRIPTIONS AND
PERFORMANCE REQUIREMENTS. HUDDLESTON HAD SUPERVISED AS MANY AS
FORTY-FIVE EMPLOYEES. IN 1978, CARR SERVED AS A RELIEF SUPERVISOR FOR
APPROXIMATELY 26 EMPLOYEES. IN 1978, CARR SERVED AS A RELIEF SUPERVISOR
FOR APPROXIMATELY 26 WEEKS WHEN TWO REGULAR SUPERVISORS WERE ON EXTENDED
SICK LEAVE. DURING THIS TIME HE HAD FULL RESPONSIBILITY FOR FOOD
SERVICE SUPERVISION EXCEPT FOR APPRAISALS AND EVALUATIONS OF EMPLOYEES.
HE ALSO TRAINED NEW EMPLOYEES. HE RECEIVED A PERFORMANCE AWARD FOR HIS
WORK THAT YEAR BUT WAS ALSO COUNSELED ABOUT A SUIT FILED AGAINST HIM BY
A FORMER EMPLOYEE INVOLVING AN ALLEGED BAD DEBT. WARD HAD THE
OPPORTUNITY TO SERVE AS A RELIEF SUPERVISOR AND TO TRAIN NEW EMPLOYEES
BUT EDENS SERVED ONLY SPARINGLY AS A RELIEF SUPERVISOR BECAUSE OF
INTERNAL PERSONNEL PROBLEMS ARISING WHEN HE SO SERVED.
REVIEW OF LEAVE RECORDS DISCLOSED THAT CARR HAS USED 110 HOURS OF
SICK LEAVE IN THE LAST TWO YEARS WITH ALL BUT 24 HOURS IN CONNECTION
WITH HIS DAYS OFF DUTY. CARR HAD BEEN COUNSELED ABOUT SICK LEAVE IN HIS
FIRST TWO YEARS OF EMPLOYMENT WITH RESPONDENT AND AGAIN RECENTLY. /2/
EDENS WAS ALSO COUNSELED ON SICK LEAVE. AFTER NINE YEARS OF EMPLOYMENT,
HE HAD A BALANCE OF ONLY 28 HOURS. HE ACCUMULATES FOUR HOURS FOR EACH
OF 26 PAY PERIODS PER YEAR.
THE GENERAL COUNSEL INTRODUCED EXHIBITS WHICH CONTAINED RATINGS OF
THE FOUR APPLICANTS FROM THE FAYETTEVILLE STATION WHICH WERE COMPLETED
BY HERMAN EDGIN, CHIEF OF PRODUCTION AND SERVICE, AND SANDRA LAFOLLETTE,
FOOD SERVICE WORKER FOREMAN, WS-2. THESE RATINGS, WHICH WERE COMPLETED
WITHIN THE TWO MONTHS PRIOR TO THE SELECTION BEING MADE, WERE ENTITLED
QUALIFICATIONS ANALYSIS AND ASSESSMENT OF POTENTIAL FOR SUPERVISORY
POSITIONS, AND APPRAISAL OF EMPLOYEE FOR PROMOTION TO NONSUPERVISORY OR
FIRST LEVEL SUPERVISORY POSITION. A REVIEW OF THOSE RATINGS SHOWS THAT
THESE TWO SUPERVISORS PUT GROSS AND CARR AT THE TOP AND JUST ABOUT EVEN,
WARD WAS PLACED THIRD, AND EDENS, A DISTANT FOURTH.
ALTHOUGH THERE WAS NO TESTIMONY FROM MEMBERS OF THE MERIT PROMOTION
PANEL WHICH RATED THE APPLICANTS PRIOR TO THEIR CERTIFICATION TO MRS.
CASSIDY, A UNION OBSERVER AT THE MEETING OF THE PANEL DID TESTIFY.
RONALD B. PERKINS IS THE UNION STEWARD WHO OBSERVED THE PROCESS THE
PANEL WENT THROUGH IN ITS EVALUATION OF THE APPLICANTS. HE VOICED NO
COMPLAINTS WITH THAT PROCESS. ALTHOUGH THE FINAL SCORES WERE NOT
COMPUTED UNTIL AFTER THE PANEL CONVENED, MR. PERKINS BELIEVED THAT, ON
THE BASIS OF THE RAW SCORES WHICH HE SAW, CARR CAME OUT ON TOP, WITH
SECOND PLACE BETWEEN GROSS AND WARD, AND EDENS COMING OUT IN FOURTH
SPOT.
AS A RESULT OF HIS NONSELECTION FOR A FOREMAN POSITION IN JANUARY OF
1979, MR. WARD FILED A GRIEVANCE. HE WAS REPRESENTED BY MR. EDENS WHO,
ALONG WITH MR. CARR, TESTIFIED IN THAT PROCEEDING AGAINST RESPONDENT AND
MRS. CASSIDY. /3/ THE GRIEVANCE WENT TO ARBITRATION IN JULY OF 1979,
AND, IN SEPTEMBER OF THAT YEAR, THE ARBITRATOR UPHELD THE GRIEVANCE. A
YEAR LATER, THE ARBITRATOR'S DECISION WAS UPHELD AND, IN DECEMBER OF
1980, MR. WARD WAS ACCORDINGLY PROMOTED TO THE SUPERVISOR'S POSITION.
FOUR UNFAIR LABOR PRACTICE COMPLAINTS WERE HEARD ON A CONSOLIDATED
RECORD IN FAYETTEVILLE ON APRIL 8 AND 9, 1980. THEY ALL INVOLVED MRS.
CASSIDY. IN THREE OF THE CASES, THE PRESIDING ADMINISTRATIVE LAW JUDGE
RECOMMENDED DISMISSAL OF THE COMPLAINTS. IN ONE, A CASE ALLEGING THAT
MRS. CASSIDY THREATEN TO WITHOLD A PROMOTION FROM MR. EDENS, AND ONE IN
WHICH MR. CARR TESTIFIED, THE ADMINISTRATIVE LAW JUDGE FOUND THAT MRS.
CASSIDY DID THREATEN TO DENY PROMOTION TO THOSE UNION MEMBERS WHO
QUESTIONED HER MOTIVES IN THE SELECTION PROCESS.
CONCLUSIONS
COUNSEL FOR THE GENERAL COUNSEL ARGUES THAT, ON THE BASIS OF THE
FACTS IN THIS CASE, RESPONDENT HAS VIOLATED SECTIONS 7116(A)(1), (2) AND
(4) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE SINCE (1)
THE EMPLOYEES WERE ENGAGED IN PROTECTED ACTIVITY, (2) RESPONDENT HAD
KNOWLEDGE OF THAT ACTIVITY, AND (3) RESPONDENT DISCRIMINATED AGAINST THE
EMPLOYEES BECAUSE OF THEIR PROTECTED ACTIVITY. RESPONDENT ARGUES THAT
THERE IS NO CAUSATION BETWEEN THE NONSELECTION OF THE EMPLOYEES AND
THEIR PROTECTED ACTIVITY.
OBVIOUSLY, THERE IS NO QUESTION BUT THAT EMPLOYEES CARR, WARD AND
EDENS WERE ENGAGING IN PROTECTED ACTIVITY WHEN THEY PARTICIPATED IN THE
GRIEVANCE PROCEDURE. RESPONDENT DOES NOT DENY THAT PROPOSITION, NOR
DOES IT DENY KNOWLEDGE OF SUCH PROTECTED ACTIVITY. THE QUESTION IN THIS
CASE IS WHETHER THAT PROTECTED ACTIVITY HAD ANYTHING TO DO WITH THE
SELECTION OF GROSS FOR PROMOTION BY MRS. CASSIDY. I CONCLUDED THAT IT
DID NOT AND THAT THE COMPLAINT, THEREFORE, SHOULD BE DISMISSED.
COUNSEL FOR THE GENERAL COUNSEL RELIES UPON THE FINDINGS IN THE PRIOR
UNFAIR LABOR PRACTICE CASE TO SHOW ANIMUS AND THEN ARGUES THAT THE
TIMING OF THE PROTECTED ACTIVITY AND THE NONSELECTION OF THE UNION
ACTIVISTS IS ENOUGH TO SUSTAIN HER BRUDEN OF PROOF. RESPONDENT ARGUES
THAT THERE IS NO CAUSATION PROVED BETWEEN THE PROTECTED ACTIVITY AND THE
SELECTION OF MR. GROSS.
WHILE COUNSEL FOR THE GENERAL COUNSEL CORRECTLY CITES AUTHORITY FOR
THE PROPOSITION THAT THE TRIER OF FACT MAY INFER MOTIVE FROM THE TOTAL
CIRCUMSTANCES PROVED, /4/ IT IS ALSO TRUE THAT AN INFERENCE IS A
CONCLUSION WHICH THE TRIER OF FACT IS PERMITTED, BUT NO COMPELLED TO
DRAW FROM THE FACTS. /5/
IN THIS CASE, I DECLINE TO DRAW AN INFERENCE FROM THE TIMING OF THE
PROTECTED ACTIVITY AS IT RELATED TO THE SELECTION FOR PROMOTION. FIRST
OF ALL, THE THREAT WHICH WAS FOUND TO HAVE TAKEN PLACE OCCURRED MORE
THAN A YEAR BEFORE THE TESTIMONY IN THE UNFAIR LABOR PRACTICE CASE WHICH
WAS HEARD IN APRIL OF 1980 /6/ THE FINDINGS IN THAT CASE DO NOT SPEAK TO
MRS. CASSIDY'S STATE OF MIND AT THE TIME OF THE HEARING. SECONDLY, THE
SELECTION TOOK PLACE MORE THAN SIX WEEKS AFTER THE HEARING IN THE UNFAIR
LABOR PRACTICE CASE AND TWO TO FOUR WEEKS AFTER THE APPLICANTS HAD BEEN
RATED BY MS. LAFOLLETTE AND MR. EDGIN. IT HAS NOT BEEN CONTENDED THAT
THE SELECTING PROCEDURES IN ANY WAY VIOLATED MERIT PROMOTION PRINCIPLES
AND I CONCLUDE THAT THE PROCESS OF DELIBERATION BETWEEN THE TIME OF THE
HEARING IN THE UNFAIR LABOR PRACTICE CASE AND THAT OF SELECTION, BELIES
ANY CONCLUSION THAT THE CHOICE WAS HASTY OR UNTOWARD.
IN ANY EVENT, EVEN WERE I TO INFER THAT UNION ANIMUS PLAYED A PART IN
THE SELECTION, AT BEST THAT WOULD ONLY IMPOSE ON RESPONDENT THE BURDEN
OF GOING FORWARD WITH EVIDENCE TO REBUT OR MEET THAT INFERENCE, IT WOULD
NOT SHIFT THE BURDEN OF PROOF FROM THE GENERAL COUNSEL. /7/ ON THE
FACTS, RESPONDENT HAS MET ITS BURDEN. THE CRUX OF THIS ENTIRE CASE IS
THE CREDIBILITY OF MRS. CASSIDY; AND, BASED ON THE EVIDENCE OF RECORD
AND HER DEMEANOR ON THE STAND AS SHE TESTIFIED, I BELIEVE THAT THE UNION
ACTIVITIES OF CARR, WARD AND EDENS DID NOT PLAY A PART IN HER SELECTION
OF GROSS. I DO BELIEVE THAT SHE WAS UPSET BY THE FACT THAT SHE WAS
CHARGED WITH UNFAIR LABOR PRACTICES BUT I BELIEVE THAT FROM THAT
EXPERIENCE, SHE WAS DETERMINED TO BASE FUTURE PROMOTION SELECTIONS ON AS
SOLID GROUND AS POSSIBLE. IT WAS FOR THIS REASONS THAT SHE DECIDED FOR
THE FIRST TIME TO PREPARE A COMPARISON CHART OF THE EDUCATION, TRAINING
AND EXPERIENCE OF THE APPLICANTS. IT IS SIGNIFICANT THAT NONE OF THE
FACTS CONTAINED ON THAT CHART WERE SPECIFICALLY CHALLENGED ALTHOUGH,
IMPLICITLY, THE WEIGHT TO BE GIVEN EACH FACTOR WAS ARGUED. SUFFICE IT
TO SAY, I CANNOT CONCLUDE THAT HER REASONING OR JUSTIFICATION FOR
SELECTING MR. GROSS WERE PRETEXTUAL. THERE WAS A RATIONAL BASIS FOR HER
SELECTION AND, OTHER THAN THE TIMING OF THE HEARING AND THE SELECTION,
NOT ONE FACT IS OF RECORD WHICH WOULD PERMIT EVEN AN INFLUENCE OF ANIMUS
OR INTENT TO DISCRIMINATE.
AS NOTED PREVIOUSLY, THE RATINGS COMPLETED BY MR. EDGIN AND MS.
LAFOLLETTE ARE UNCHALLENGED. THEY SHOW CONCLUSIVELY THAT WARD AND EDENS
WOULD NOT HAVE BEEN SELECTED OVER EITHER GROSS OR CARR. THOSE RATINGS
GIVE SUPPORT TO MRS. CASSIDY'S FINAL RANKINGS. CARR'S LEAVE RECORD
WORKED AGAINST HIM AND I CANNOT CONCLUDE THAT MRS. CASSIDY'S CONCERN
WITH IT WAS NOT JUSTIFIED. I CONCLUDE THAT THE CHOICE OF GROSS WAS
FACIALLY LAWFUL AND THAT THE EVIDENCE DOES NOT WARRANT A CONCLUSION THAT
UNION ANIMUS PLAYED ANY PART IN THE SELECTION. THE FACT THAT MRS.
CASSIDY WAS FOUND TO HAVE MADE THREATS TO EMPLOYEES MORE THAN A YEAR
PRIOR TO THE SELECTION PROCESS CANNOT, STANDING ALONG, IMMUNIZE THOSE
EMPLOYEES AGAINST NONSELECTION FOR PROMOTION.
HAVING FOUND AND CONCLUDED THAT THE RESPONDENT DID NOT VIOLATE THE
STATUTE AS ALLEGED, I RECOMMEND THAT THE FEDERAL LABOR RELATIONS
AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5 CFR 2423.29(C):
ORDER
ORDERED, THAT THE COMPLAINT IN CASE NO. 6-CA-615 IS DISMISSED.
ALAN W. HEIFETZ
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 12, 1981
WASHINGTON, D.C.
/1/ INTERNAL REVENUE SERVICE, WASHINGTON, D.C., 6 FLRA NO. 23(1981).
/2/ THIS COUNSELING WAS REMOVED FROM HIS FILE AFTER AN UNFAIR LABOR
PRACTICE CHARGE WAS FILED BY THE UNION.
/3/ EDENS HAD BEEN PROMOTED BY MRS. CASSIDY TO WG-4 AFTER HE HAD
FILED (AND NOT BECAUSE OF) SOME GRIEVANCES.
/4/ SHATTUCK DENN MINING CORP., (IRON KING BRANCH) V. NLRB. 362 F.2D
466 (9TH CIR. 166).
/5/ BRAY V. UNITED STATES, 306 F.2D 743, 747 (C.A.D.C. 1962).
/6/ DECISION OF CHIEF ADMINISTRATIVE LAW JUDGE JOHN H. FENTON IN
VETERANS ADMINISTRATION, VETERANS ADMINISTRATION MEDICAL CENTER,
FAYETTEVILLE, ARKANSAS, CASE NO. 6-CA-167 (1980).
/7/ SEE, FED. R. CIV. P. 301.
9 FLRA 122; FLRA O-NG-465; AUGUST 6, 1982.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1923
UNION
AND
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
SOCIAL SECURITY ADMINISTRATION
AGENCY
CASE NO. O-NG-465
DECISION AND ORDER ON NEGOTIABILITY ISSUE
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE AUTHORITY
PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), AND RAISES ISSUES
CONCERNING THE NEGOTIABILITY OF THE FOLLOWING UNION PROPOSAL:
THE SOCIAL SECURITY ADMINISTRATION HEREWITH AGREES TO UNDERTAKE EVERY
POSSIBLE MEASURE TO
INSURE THE REPLACEMENT OF THE SSA-831/833 (J4422-J4424) WORKLOAD
PROCESS, WITH, AT THE
MINIMUM, ANOTHER POSITION OR WORK OF EQUIVALENT SIGNIFICANCE AND
GRADE VALUE. THIS POSITION
OR WORK WILL BE A YEAR ROUND POSITION AND STATUS. ALL FULL TIME
PERMANENTS WHO OCCUPY THESE
POSITIONS WILL RECEIVE FORMALIZED TRAINING. TRAINING WILL BE
REASONABLE AND ADEQUATE SO THAT
EACH EMPLOYEE WILL ATTAIN A SATISFACTORY ACHIEVEMENT LEVEL. MEDIAN
OR BASIC REQUIREMENT
FIGURES FOR THIS POSITION OR REPLACED WORK WILL NOT BE ESTABLISHED OR
IMPLEMENTED UNTIL THE
FULL COLLECTIVE BARGAINING PROCESS ON THIS SUBJECT IS COMPLETED.
UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
IN AGREEMENT WITH THE AGENCY, THE AUTHORITY FINDS THAT THIS PROPOSAL,
CONSTRUED AS A WHOLE, DIRECTLY INTERFERES WITH MANAGEMENT RIGHTS UNDER
SECTION 7106(A)(2)(A) AND (B) OF THE STATUTE.
IN NATIONAL ASSOCIATION OF AIR TRAFFIC SPECIALISTS AND DEPARTMENT OF
TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, 6 FLRA NO. 106(1981)
(PROPOSALS I - III), THE AUTHORITY FOUND THAT PROPOSALS WHICH WOULD
REQUIRE MANAGEMENT TO GIVE UNIT EMPLOYEES REFRESHER AND SUPPLEMENTAL
TRAINING AND TO PROVIDE FORMAL TRAINING TO ALL UNIT EMPLOYEES IN OTHER
SPECIFIC AREAS CONFLICTED WITH MANAGEMENT'S RIGHT TO "ASSIGN WORK" UNDER
SECTION 7106(A)(2)(B) OF THE STATUTE AND THEREFORE WERE NONNEGOTIABLE.
SEE ALSO INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, LOCAL
121 AND U.S. GOVERNMENT PRINTING OFFICE, WASHINGTON, D.C., 8 FLRA NO.
35(1982). THE PROPOSAL HEREIN LIKEWISE WOULD REQUIRE THE AGENCY TO
ASSIGN FORMAL TRAINING TO BARGAINING UNIT EMPLOYEES WHERE WORK HAS BEEN
ELIMINATED OR TRANSFERRED TO ENABLE THEM TO PERFORM IN A REPLACEMENT
"POSITION OF EQUIVALENT SIGNIFICANCE AND GRADE VALUE." THE UNION CLAIMS
THAT, PURSUANT TO THE FIRST SENTENCE OF ITS PROPOSAL REQUIRING THE
AGENCY ONLY "TO UNDERTAKE EVERY POSSIBLE MEASURE," MANAGEMENT RETAINS
THE DISCRETION TO DECIDE WHETHER TO REPLACE THE ELIMINATED WORKLOAD. IT
IS NOT CLAIMED, HOWEVER, THAT SUCH LANGUAGE WOULD PRESERVE MANAGEMENT'S
DISCRETION WITH RESPECT TO TRAINING. IN ANY EVENT, THE PROPOSAL, ON ITS
FACE, IS CLEAR IN REQUIRING MANAGEMENT TO PROVIDE "FORMALIZED TRAINING"
TO ALL FULL TIME PERMANENT EMPLOYEES WHO OCCUPY REPLACEMENT POSITIONS.
SINCE THE PROPOSAL WOULD REQUIRE THE AGENCY TO ASSIGN SPECIFIC WORK TO
BARGAINING UNIT EMPLOYEES (I.E., TRAINING) IT IS, FOR THE REASONS MORE
FULLY STATED IN THE ABOVE-CITED DECISIONS, NOT WITHIN THE DUTY TO
BARGAIN. /1/
FURTHER, THE LAST SENTENCE OF THE PROPOSAL WOULD REQUIRE BARGAINING
OVER THE "BASIC REQUIREMENT FIGURES," I.E., THE PERFORMANCE STANDARDS
FOR THE JOBS IN QUESTION. IN NATIONAL TREASURY EMPLOYEES UNION AND
DEPARTMENT OF THE TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA 768(1980),
APPEAL DOCKETED, NO. 80-1895 (D.C. CIR. AUG. 4, 1980), THE AUTHORITY
HELD THAT A PROPOSAL REQUIRING NEGOTIATION OF THE CONTENT OF PERFORMANCE
STANDARDS WAS OUTSIDE THE DUTY TO BARGAIN IN THAT IT WOULD DIRECTLY
INTERFERE WITH THE EXERCISE BY MANAGEMENT OF ITS RIGHTS TO "DIRECT
EMPLOYEES" AND TO "ASSIGN WORK" UNDER SECTION 7106(A)(2)(A) AND (B) OF
THE STATUTE. SINCE THE PROPOSAL HEREIN SIMILARLY WOULD REQUIRE
NEGOTIATION OVER THE PERFORMANCE STANDARDS FOR THE JOB, IT IS, FOR THE
REASONS MORE FULLY STATED IN BUREAU OF THE PUBLIC DEBT, NOT WITHIN THE
DUTY TO BARGAIN.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS, IT IS ORDERED THAT THE UNION'S PETITION FOR REVIEW BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., AUGUST 6, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ CF. INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-48,
AFL-CIO AND NAVAL SUPPORT ACTIVITY, MARE ISLAND STATION, CALIFORNIA, 3
FLRA 488(1980) WHEREIN THE AUTHORITY DETERMINED THAT A PROPOSAL WHICH
REQUIRED ONLY THAT MANAGEMENT "WILL ENDEAVOR" TO ASSIGN WORK IN A
PARTICULAR MANNER WAS WITHIN THE DUTY TO BARGAIN.
9 FLRA 121; FLRA 8-CU-29; AUGUST 6, 1982.
AIR FORCE FLIGHT TEST CENTER
EDWARDS AIR FORCE BASE, CALIFORNIA
ACTIVITY
AND
INTERNATIONAL ASSOCIATION OF
FIREFIGHTERS, LOCAL F-53
PETITIONER
CASE NO. 8-CU-29
DECISION AND ORDER CLARIFYING UNIT
UPON A PETITION DULY FILED WITH THE AUTHORITY UNDER SECTION
7111(B)(2) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
(THE STATUTE), A HEARING WAS HELD BEFORE A HEARING OFFICER OF THE
AUTHORITY. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE
FROM PREJUDICIAL ERROR AND HEREBY AFFIRMED.
UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
PARTIES' CONTENTIONS, THE AUTHORITY FINDS: THE INTERNATIONAL
ASSOCIATION OF FIREFIGHTERS, LOCAL F-53 (FIREFIGHTERS) WAS RECOGNIZED ON
JULY 13, 1964, AS THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR A UNIT OF
ALL EMPLOYEES OF FIRE PROTECTION BRANCH, A.F.F.T.C., EDWARDS AIR FORCE
BASE. ESSENTIALLY, THE PETITION SEEKS TO CLARIFY THE BARGAINING UNIT
STATUS OF NUMEROUS INCUMBENTS IN VARIOUS JOB CLASSIFICATIONS BASED ON
THE ACTIVITY'S CONTENTIONS THAT THEY ARE SUPERVISORS OR MANAGEMENT
OFFICIALS.
SUPERVISORS /1/
THE ACTIVITY CONTENDS THAT THE INCUMBENTS IN THE JOB CLASSIFICATIONS
OF SUPERVISORY FIREFIGHTER, GS-081-10 (ASSISTANT FIRE CHIEF), AND
SUPERVISORY FIREFIGHTER, GS-081-07 (STATION CHIEF), ARE SUPERVISORS AND
SHOULD BE EXCLUDED FROM THE BARGAINING UNIT. OF THESE, THE RECORD
ESTABLISHES THAT THE INCUMBENTS IN THE JOB CLASSIFICATION OF SUPERVISORY
FIREFIGHTER, GS-081-10, ASSIGN WORK, ADJUST GRIEVANCES, DISCIPLINE AND
PROMOTE SUBORDINATES, AND HAVE EFFECTIVELY RECOMMENDED SUBORDINATES FOR
AWARDS; AND THAT THE INCUMBENTS IN THE JOB CLASSIFICATION OF
SUPERVISORY FIREFIGHTER, GS-081-07, PROMOTE, ADJUST GRIEVANCES AND
DISCIPLINE SUBORDINATES. FURTHER, THE RECORD REFLECTS AND THE AUTHORITY
FINDS THAT THESE INCUMBENTS DEVOTE A PREPONDERANCE OF THEIR EMPLOYMENT
TIME IN EXERCISING SUCH DUTIES /2/ WHICH ARE NOT MERELY ROUTINE OR
CLERICAL IN NATURE, BUT REQUIRE THE CONSISTENT EXERCISE OF INDEPENDENT
JUDGMENT. ACCORDINGLY, THESE INCUMBENTS ARE SUPERVISORS WITHIN THE
MEANING OF SECTION 7103(A)(10) OF THE STATUTE AND SHALL BE EXCLUDED FROM
THE UNIT. /3/
MANAGEMENT OFFICIAL /4/
THE ACTIVITY CONTENDS THAT THE EMPLOYEE IN THE JOB CLASSIFICATION OF
FIRE PROTECTION SPECIALIST (TRAINING), GS-081-09 IS A MANAGEMENT
OFFICIAL AND SHOULD BE EXCLUDED FROM THE UNIT. IN THE LEAD CASE OF
DEPARTMENT OF THE NAVY, AUTOMATIC DATA PROCESSING SELECTION OFFICE, 7
FLRA NO. 24(1981), THE AUTHORITY INTERPRETED THE STATUTORY DEFINITION OF
"MANAGEMENT OFFICIAL" TO INCLUDE THOSE INDIVIDUALS WHO: (1) CREATE,
ESTABLISH OR PRESCRIBE GENERAL PRINCIPLE, PLANS, OR COURSES OF ACTION
FOR AN AGENCY; (2) DECIDE UPON OR SETTLE UPON GENERAL PRINCIPLES, PLANS
OR COURSES OF ACTION FOR AN AGENCY; OR (3) BRING ABOUT OR OBTAIN A
RESULT AS TO THE ADOPTION OF GENERAL PRINCIPLES, PLANS OR COURSES OF
ACTION, FOR AN AGENCY. APPLYING THESE CRITERIA TO THE INSTANT CASE, THE
AUTHORITY FINDS THAT THE INCUMBENT IN THE JOB CLASSIFICATION OF FIRE
PROTECTION SPECIALIST (TRAINING), GS-081-09, IS A PROFESSIONAL WHOSE
ACTIONS ASSIST IN IMPLEMENTING, AS OPPOSED TO SHAPING, THE ACTIVITY'S
POLICIES. THUS THE RECORD IS CLEAR THAT THIS INCUMBENT IS NOT A
MANAGEMENT OFFICIAL IN THAT HE DOES NOT EXERCISE ANY DUTIES AND
RESPONSIBILITIES WHICH REQUIRE OR AUTHORIZE HIM TO FORMULATE, DETERMINE,
OR IMPLEMENT THE POLICIES OF THE ACTIVITY WITHIN THE MEANING OF SECTION
7103(A)(11) OF THE STATUTE. ACCORDINGLY, THE AUTHORITY SHALL ORDER THAT
THIS INCUMBENT REMAIN IN THE BARGAINING UNIT.
ORDER
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN BE,
AND IT HEREBY IS, CLARIFIED TO INCLUDE THE INCUMBENT IN THE JOB
CLASSIFICATION OF FIRE PROTECTION SPECIALIST (TRAINING) GS-081-09.
IT IS FURTHER ORDERED THAT, WITH REGARD TO ALL OTHER JOB
CLASSIFICATIONS SOUGHT TO BE INCLUDED, BUT WHICH THE AUTHORITY HAS FOUND
MUST BE EXCLUDED FROM THE BARGAINING UNIT, THE PETITION IS HEREBY
DISMISSED.
ISSUED, WASHINGTON, D.C., AUGUST 6, 1982.
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ SECTION 7103(A)(10) OF THE STATUTE DEFINES A "SUPERVISOR" AS:
. . . AN INDIVIDUAL EMPLOYED BY AN AGENCY HAVING AUTHORITY IN THE
INTEREST OF THE AGENCY TO
HIRE, DIRECT, ASSIGN, PROMOTE, REWARD, TRANSFER, FURLOUGH, LAYOFF,
RECALL, SUSPEND,
DISCIPLINE, OR REMOVE EMPLOYEES, TO ADJUST THEIR GRIEVANCES, OR TO
EFFECTIVELY RECOMMEND SUCH
ACTION, IF THE EXERCISE OF THE AUTHORITY IS NOT MERELY ROUTINE OR
CLERICAL IN NATURE BUT
REQUIRES THE CONSISTENT EXERCISE OF INDEPENDENT JUDGMENT, EXCEPT
THAT, WITH RESPECT TO ANY
UNIT WHICH INCLUDES FIREFIGHTERS OR NURSES, THE TERM 'SUPERVISOR'
INCLUDES ONLY THOSE
INDIVIDUALS WHO DEVOTE A PREPONDERANCE OF THEIR EMPLOYMENT TIME TO
EXERCISING SUCH
AUTHORITY(.)
/2/ SEE FIRE DEPARTMENT, 4392D AEROSPACE SUPPORT GROUP, VANDENBURG
AIR FORCE BASE, CALIFORNIA, 9 FLRA NO. 119(1982) AND VETERANS
ADMINISTRATION MEDICAL CENTER, FAYETTEVILLE, NORTH CAROLINA, 8 FLRA NO.
115(1982).
/3/ THEREFORE IT IS UNNECESSARY TO PASS UPON THE ACTIVITY'S
ADDITIONAL ASSERTION THAT THE INCUMBENTS IN THE JOB CLASSIFICATION
SUPERVISOR FIREFIGHTER, GS-081-10 SHOULD ALSO BE EXCLUDED FROM THE UNIT
ON THE BASIS THAT THEY ARE MANAGEMENT OFFICIALS.
/4/ SECTION 7103(A)(11) OF THE STATUTE DEFINES A "MANAGEMENT
OFFICIAL" AS:
. . . AN INDIVIDUAL EMPLOYED BY AN AGENCY IN A POSITION THE DUTIES
AND RESPONSIBILITIES OF
WHICH REQUIRE OR AUTHORIZE THE INDIVIDUAL TO FORMULATE, DETERMINE, OR
INFLUENCE THE POLICIES
OF THE AGENCY(.)
9 FLRA 120; FLRA 8-CU-27; AUGUST 6, 1982.
FIRE DEPARTMENT, 4392D AEROSPACE
SUPPORT GROUP, VANDENBURG AIR FORCE BASE,
CALIFORNIA /1/
ACTIVITY
AND
THE INTERNATIONAL ASSOCIATION OF
FIREFIGHTERS, AFL-CIO, CLC,
LOCAL F-116 /2/
PETITIONER
CASE NO. 8-CU-27
DECISION AND ORDER CLARIFYING UNIT
UPON A PETITION DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
UNDER SECTION 7111(B)(2) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), A HEARING WAS HELD BEFORE A HEARING
OFFICER OF THE AUTHORITY. THE HEARING OFFICER'S RULINGS MADE AT THE
HEARING ARE FREE FROM PREJUDICIAL ERROR AND HEREBY AFFIRMED.
UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
PARTIES' CONTENTIONS, THE AUTHORITY FINDS: THE INTERNATIONAL
ASSOCIATION OF FIREFIGHTERS, AFL-CIO, CLC, LOCAL F-116 (PETITIONER) WAS
RECOGNIZED BY THE ACTIVITY ON JANUARY 7, 1966, AS THE EXCLUSIVE
BARGAINING REPRESENTATIVE FOR A UNIT OF ALL EMPLOYEES OF THE FIR
PROTECTION BRANCH, 4392D AEROSPACE SUPPORT GROUP, VANDENBURG AIR FORCE
BASE, CALIFORNIA, WHO ARE ELIGIBLE FOR MEMBERSHIP IN THE UNION.
ESSENTIALLY, THE PETITION SEEKS TO CLARIFY THE BARGAINING UNIT STATUS OF
THE INCUMBENTS IN CERTAIN JOB CLASSIFICATIONS BASED ON THE ACTIVITY'S
CONTENTIONS THAT THEY ARE SUPERVISORS AND MANAGEMENT OFFICIALS.
SUPERVISORS /3/
THE ACTIVITY CONTENDS THAT THE INCUMBENTS IN THE JOB CLASSIFICATION
OF SUPERVISORY FIREFIGHTER, GS-081-10 (ASSISTANT FIRE CHIEF), AND
SUPERVISORY FIREFIGHTER, GS-081-07 (STATION CHIEF), ARE SUPERVISORS AND
SHOULD BE EXCLUDED FROM THE BARGAINING UNIT. OF THESE, THE RECORD
ESTABLISHES THAT THE INCUMBENTS IN THE JOB CLASSIFICATION SUPERVISORY
FIREFIGHTER, GS-081-10, ASSIGN WORK, DIRECT, TRANSFER AND RECALL, ADJUST
GRIEVANCES AND DISCIPLINE SUBORDINATES, EFFECTIVELY RECOMMEND HIRING OF
AND AWARDS TO SUBORDINATES; AND THE INCUMBENTS IN THE JOB
CLASSIFICATION SUPERVISORY FIREFIGHTER, GS-081-07, ASSIGN WORK, ADJUST
GRIEVANCES AND DISCIPLINE SUBORDINATES, AND HAVE EFFECTIVELY RECOMMENDED
HIRING OF AND AWARDS TO SUBORDINATES. FURTHER, THE RECORD REFLECTS AND
THE AUTHORITY FINDS THAT ASSISTANT FIRE CHIEFS AND STATION CHIEFS DEVOTE
A PREPONDERANCE OF THEIR EMPLOYMENT TIME IN EXERCISING SUCH DUTIES WHICH
ARE NOT MERELY ROUTINE OR CLERICAL IN NATURE, BUT REQUIRE THE CONSISTENT
EXERCISE OF INDEPENDENT JUDGMENT. /4/ ACCORDINGLY THESE INCUMBENTS ARE
SUPERVISORS WITHIN THE MEANING OF SECTION 7103(A)(10) OF THE STATUTE AND
SHALL BE EXCLUDED FROM THE UNIT. /5/
ORDER
IT IS HEREBY ORDERED THAT THE PETITION HEREIN BE DISMISSED.
ISSUED, WASHINGTON, D.C., AUGUST 6, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/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/ SECTION 7103(A)(10) OF THE STATUTE DEFINES A "SUPERVISOR" AS:
. . . AN INDIVIDUAL EMPLOYED BY AN AGENCY HAVING AUTHORITY IN THE
INTEREST OF THE AGENCY TO
HIRE, DIRECT, ASSIGN, PROMOTE, REWARD, TRANSFER, FURLOUGH, LAYOFF,
RECALL, SUSPEND,
DISCIPLINE, OR REMOVE, EMPLOYEES, TO ADJUST THEIR GRIEVANCES, OR TO
EFFECTIVELY RECOMMEND SUCH
ACTION, IF THE EXERCISE OF THE AUTHORITY IS NOT MERELY ROUTINE OR
CLERICAL IN NATURE BUT
REQUIRES THE CONSISTENT EXERCISE OF INDEPENDENT JUDGMENT, EXCEPT
THAT, WITH RESPECT TO ANY
UNIT WHICH INCLUDES FIREFIGHTERS OR NURSES, THE TERM 'SUPERVISOR'
INCLUDES ONLY THOSE
INDIVIDUALS WHO DEVOTE A PREPONDERANCE OF THEIR EMPLOYMENT TIME TO
EXERCISING SUCH
AUTHORITY(.)
/4/ SEE 2750TH AIR BASE WING, AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 9 FLRA 118(1982) AND VETERANS
ADMINISTRATION MEDICAL CENTER, FAYETTEVILLE NOTYH CAROLINA, 8 FLRA
ADMINISTRATION&UEDICAL0CENTER,0FJYNTTNVILTE&NOTY H0CAROTIVA, 80FLZA NO.
115(1982).
/5/ THEREFORE, IT IS UNNECESSARY TO PASS UPON THE ACTIVITY'S
ADDITIONAL ASSERTION THAT THE INCUMBENTS IN THE JOB CLASSIFICATION
SUPERVISORY FIREFIGHTER, GS-081-10 SHOULD ALSO BE EXCLUDED FROM THE UNIT
ON THE BASIS THAT THEY ARE MANAGEMENT OFFICIALS.
9 FLRA 119; FLRA 8-CU-18; AUGUST 6, 1982.
HEADQUARTERS, SPACE DIVISION, AIR FORCE
SYSTEMS COMMAND, DEPARTMENT OF THE AIR FORCE,
DEPARTMENT OF DEFENSE /1/
ACTIVITY/PETITIONER
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2429
LABOR ORGANIZATION
CASE NO. 8-CU-18
DECISION AND ORDER CLARIFYING UNIT
CASE NO. 8-CU-18
UPON A PETITION DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
UNDER SECTION 7111(B1(2) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), A HEARING WAS HELD BEFORE A HEARING
OFFICER OF THE AUTHORITY. THE HEARING OFFICER'S RULINGS MADE AT THE
HEARING ARE FREE FROM PREJUDICIAL ERROR AND HEREBY AFFIRMED.
UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
PARTIES' CONTENTIONS, THE AUTHORITY FINDS: THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2429 (AFGE) WAS CERTIFIED ON MARCH
16, 1971 AS THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR A UNIT OF ALL
NONPROFESSIONAL CIVILIAN EMPLOYEES OF THE SPACE AND MISSILE SYSTEMS
ORGANIZATION AND OTHER AIR FORCE ORGANIZATIONS SERVICED BY THE SPACE AND
MISSILE SYSTEMS ORGANIZATION CENTRAL CIVILIAN PERSONNEL OFFICE WITH DUTY
STATIONS IN LOS ANGELES AND ORANGE COUNTY, CALIFORNIA. ESSENTIALLY, THE
ACTIVITY'S PETITION SEEKS TO EXCLUDE FROM THE RECOGNIZED UNIT THE
INCUMBENTS IN VARIOUS JOB CLASSIFICATIONS BASED ON THE ALLEGATION THAT
THEY ARE SUPERVISORS, MANAGEMENT OFFICIALS, OR BOTH. /2/
SUPERVISORS /3/
THE ACTIVITY CONTENDS THAT THE EMPLOYEES IN THE JOB CLASSIFICATIONS
LISTED IN APPENDIX A ARE SUPERVISORS AND SHOULD BE EXCLUDED FROM THE
UNIT. OF THESE, THE RECORD ESTABLISHES THAT WILLIAM VAUGHAN (LOGISTICS
MANAGEMENT SPECIALIST, GS-0346-13), ASSIGNS WORK, HAS HIRED
SUBORDINATES, HAS THE AUTHORITY TO DISCIPLINE SUBORDINATES, AND HAS
EFFECTIVELY RECOMMENDED SUBORDINATES FOR AWARDS; THAT GEORGE LEMON
(LOGISTICS MANAGEMENT SPECIALIST, GS-0346-13), ASSIGNS WORK AND ADJUST
GRIEVANCES; AND THAT BERTIS BERKSHIRE (FINANCIAL MANAGEMENT ANALYST,
GS-0501-13), ASSIGNS WORK AND HAS HIRED AND ADJUSTED GRIEVANCES FOR
SUBORDINATES. FURTHER, THE AUTHORITY FINDS THAT THE ABOVE DUTIES ARE
NOT MERELY ROUTINE OR CLERICAL IN NATURE BUT REQUIRE THE CONSISTENT
EXERCISE OF INDEPENDENT JUDGMENT. ACCORDINGLY, THE AUTHORITY FINDS
THESE INCUMBENTS ARE SUPERVISORS WITHIN THE MEANING OF 7103(A)(10) OF
THE STATUTE AND SHALL ORDER THAT THEY BE EXCLUDED FROM THE UNIT. /4/
THE AUTHORITY FURTHER FINDS THAT THE INCUMBENTS IN THE REMAINING JOB
CLASSIFICATIONS LISTED IN APPENDIX A ARE NOT SUPERVISORS WITHIN THE
MEANING OF SECTION 7103(A)(10) OF THE STATUTE. THUS, THE RECORD
ESTABLISHES THAT ALTHOUGH THESE INCUMBENTS MAY HAVE SOME RESPONSIBILITY
FOR ASSIGNING WORK TO CERTAIN EMPLOYEES AND DIRECTING THEM IN THE
PERFORMANCE OF THAT WORK, SUCH FUNCTIONS ARE ROUTINE IN NATURE AND DO
NOT REQUIRE THE CONSISTENT EXERCISE OF INDEPENDENT JUDGMENT. NOR DO THE
INCUMBENTS IN THESE POSITIONS EXERCISE ANY OF THE OTHER STATUTORY
INDICIA OF SUPERVISORY AUTHORITY. ACCORDINGLY, THE AUTHORITY FINDS THAT
THEY SHOULD REMAIN IN THE BARGAINING UNIT.
MANAGEMENT OFFICIALS /5/
THE ACTIVITY CONTENDS THAT THE EMPLOYEES LISTED IN APPENDIX B ARE
MANAGEMENT OFFICIALS AND SHOULD BE EXCLUDED FROM THE UNIT. IN THE LEAD
CASE OF DEPARTMENT OF THE NAVY, AUTOMATIC DATA PROCESSING SELECTION
OFFICE, 7 FLRA NO. 24(1981), THE AUTHORITY INTERPRETED THE STATUTORY
DEFINITION OF "MANAGEMENT OFFICIAL" TO INCLUDE THOSE INDIVIDUALS WHO:
(1) CREATE, ESTABLISH OR PRESCRIBE GENERAL PRINCIPLES, PLANS, OR COURSES
OF ACTION OF AN AGENCY; (2) DECIDE UPON OR SETTLE UPON GENERAL
PRINCIPLES, PLANS OR COURSES OF ACTION FOR AN AGENCY; OR (3) BRING
ABOUT OR OBTAIN A RESULT AS TO THE ADOPTION OF GENERAL PRINCIPLES, PLANS
OR COURSES OF ACTION FOR AN AGENCY.
APPLYING THESE CRITERIA TO THE INSTANT CASE, THE AUTHORITY FINDS THAT
THAT DAVID BESBRIS (CONTRACT NEGOTIATOR, GS-1102-13), JOHN DENNELL
(CONTRACT ADMINISTRATOR, GS-1102-13), ILEE CLARDY (QUALITY ASSURANCE
SPECIALIST, GS-1910-13), ANDREW POND (QUALITY ASSURANCE SPECIALIST,
GS-1910-13), JACK REBERRY (QUALITY ASSURANCE SPECIALIST, GS-1910-13),
ALLEN STEPHENS (QUALITY ASSURANCE SPECIALIST, GS-1910-13), CATHERINE
COWGILL (CONTRACT SPECIALIST, GS-1102-13), CHARLES REXON (SAFETY
MANAGER, GS-0018-13) AND ROBERT BECKER (STANDARDIZATION MANAGEMENT
SPECIALIST, GS-0301-13) ARE MANAGEMENT OFFICIALS AND SHALL ORDER THEIR
EXCLUSION FROM THE BARGAINING UNIT. THUS, THE RECORD ESTABLISHES THAT
BESBRIS AND DENNELL HAVE COMPLETE RESPONSIBILITY FOR NEGOTIATING AND
ADMINISTERING THE AEROSPACE CORPORATION CONTRACT AND HAVE THE FINAL
SIGNATORY AUTHORITY TO BIND THE ACTIVITY AND ITS RESOURCES; THAT
CLARDY, POND, REBERRY, AND STEPHENS ISSUE QUALITY ASSURANCE
SPECIFICATIONS TO SERVE AS THE GUIDE FOR MAKING DECISIONS IN THE
PROCUREMENT CYCLE AND ARE RESPONSIBLE FOR WRITING AND INTERPRETING THE
ACTIVITY'S REGULATIONS IN THE AREA OF QUALITY ASSURANCE; THAT COWGILL
IS INVOLVED IN PREPARATION AND NEGOTIATION OF ARCHITECTURAL AND
ENGINEERING SERVICE CONTRACTS AND HAS THE SOLE AUTHORITY TO SPEAK FOR
AND BIND THE ACTIVITY; THAT REXON IS THE GROUND SAFETY MANAGER FOR THE
ACTIVITY AND IS AUTHOR OF THE ACTIVITY'S REGULATIONS IN THIS AREA; AND
THAT BECKER IS INVOLVED IN THE AREA OF STANDARDIZATION AND IS AUTHOR OF
THE ACTIVITY'S REGULATIONS WHICH SET FORTH THE POLICY FOR GETTING
MILITARY SPECIFICATIONS AND STANDARDS WRITTEN. IT FOLLOWS THAT THEIR
RESPONSIBILITIES REQUIRE AND AUTHORIZE THEM TO FORMULATE, DETERMINE OR
INFLUENCE THE POLICIES OF THE ACTIVITY WITHIN THE MEANING OF SECTION
7103(A)(11) OF THE STATUTE AS INTERPRETED BY THE AUTHORITY.
WITH RESPECT TO THE OTHER ALLEGED MANAGEMENT OFFICIALS, THE AUTHORITY
FINDS THAT THEY ARE PROFESSIONALS WHOSE ACTIONS ASSIST IN IMPLEMENTING,
AS OPPOSED TO SHAPING, THE ACTIVITY'S POLICIES. THUS, THE RECORD IS
CLEAR THAT THESE INCUMBENTS ARE NOT MANAGEMENT OFFICIALS IN THAT THEY DO
NOT EXERCISE ANY DUTIES AND RESPONSIBILITIES WHICH REQUIRE OR AUTHORIZE
THEM TO FORMULATE, DETERMINE, OR INFLUENCE THE POLICIES OF THE ACTIVITY
WITHIN THE MEANING OF SECTION 7103(A)(11) OF THE STATUTE. ACCORDINGLY,
THE AUTHORITY FINDS THAT THESE INCUMBENTS SHOULD REMAIN IN THE
BARGAINING UNIT.
ORDER
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN BE,
AND IT HEREBY IS, CLARIFIED BY EXCLUDING FROM SAID UNIT THE FOLLOWING
POSITIONS: WILLIAM VAUGHAN (LOGISTICS MANAGEMENT SPECIALIST,
GS-0346-13), GEORGE LEMON (LOGISTICS MANAGEMENT SPECIALIST, GS-0346-13),
DAVID BESBRIS (CONTRACT NEGOTIATOR, GS-1102-13), JOHN DENNELL (CONTRACT
ADMINISTRATOR, GS-1102-13), ILEE CLARDY (QUALITY ASSURANCE SPECIALIST,
GS-1910-13), ANDREW POND (QUALITY ASSURANCE SPECIALIST, GS-1910-13),
JACK REBERRY (QUALITY ASSURANCE SPECIALIST, GS-1910-13), ALLEN STEPHENS
(QUALITY ASSURANCE SPECIALIST, GS-1910-13), CATHERIN COWGILL (CONTRACT
SPECIALIST, GS-1102-13), CHARLES REXON (SAFETY MANAGER, GS-0018-13),A
AND ROBERT BECKER (STANDARDIZATION MANAGEMENT SPECIALIST, GS-0301-13).
IT IS FURTHER ORDERED THAT, WITH REGARD TO ALL OTHER JOB
CLASSIFICATIONS SOUGHT TO BE EXCLUDED HEREIN, THE PETITION BE, AND IT
HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., AUGUST 6, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX A
EMPLOYEES ALLEGED TO BE SUPERVISORS
GERALD HEYDINGER, RESOURCE ANALYST, GS-0301-14
DAVID BESBRIS, CONTRACT NEGOTIATOR, GS-1102-13
ILEE CLARDY, QUALITY ASSURANCE SPECIALIST, GS-1910-13
ANDREW POND, QUALITY ASSURANCE SPECIALIST, GS-1910-13
JACK REBERRY, QUALITY ASSURANCE SPECIALIST, GS-1910-13
ALLEN STEPHENS, QUALITY ASSURANCE SPECIALIST, GS-1910-13
WILLIAM VAUGHAN, LOGISTICS MANAGEMENT SPECIALIST, GS-0346-13
GEORGE LEMON, LOGISTICS MANAGEMENT SPECIALIST, GS-0346-13
BERTIS BERKSHIRE, FINANCIAL MANAGEMENT ANALYST, GS-0501-13
APPENDIX B
EMPLOYEES ALLEGED TO BE MANAGEMENT OFFICIALS
GERALD HEYDINGER, RESOURCE ANALYST, GS-0301-14
DAVID ALBERT, MOTION PICTURE PRODUCTION SPECIALIST, GS-1071-13
GIOVANNI BARGERO, COMPUTER SPECIALIST, GS-0334-13
ROBERT BECKER, STANDARDIZATION MANAGEMENT SPECIALIST, GS-0301-13
DAVID BESBRIS, CONTRACT NEGOTIATOR, GS-1102-13
WARREN CARLSON, FINANCIAL MANAGEMENT ANALYST, GS-0501-13
GAIL CHASE, PROCUREMENT ANALYST, GS-1102-13
ILEE CLARDY, QUALITY ASSURANCE SPECIALIST, GS-0501-13
CATHERINE COWGILL, CONTRACT SPECIALIST, GS-1102-13
FRANK DELUNA, CONTRACT SPECIALIST, GS-1102-13
JOHN DENNELL, CONTRACT ADMINISTRATOR, GS-1102-13
DAVID FARIAS, FINANCIAL MANAGEMENT ANALYST, GS-0501-13
GEORGE HYMAN, TECHNICAL REQUIREMENTS SPECIALIST, GS-1101-13
MELVIN INGLET, LOGISTICS MANAGEMENT SPECIALIST, GS-0346-13
JOSEPH KRUEGER, PROCUREMENT ANALYST, GS-1102-13
JOHN LUSCO, CONFIGURATION MANAGEMENT SPECIALIST, GS-0301-13
ROSEMARY LANE, FINANCIAL MANAGEMENT ANALYST, GS-0501-13
CLIFFORD LITTLE, LOGISTICS MANAGEMENT SPECIALIST, GS-0346-13
ROBERT POLKOW, TECHNICAL REQUIREMENTS SPECIALIST, GS-1101-13
ANDREW POND, QUALITY ASSURANCE SPECIALIST, GS-1910-13
JACK REBERRY, QUALITY ASSURANCE SPECIALIST, GS-1910-13
CHARLES REXON, SAFETY MANAGER, GS-0018-13
DONALD SEAL, FINANCIAL MANAGEMENT ANALYST, GS-0501-13
ROBERT SECREST, LOGISTICS MANAGEMENT SPECIALIST, GS-0346-13
JOHN SHOOK, SYSTEMS ENGINEERING MANAGEMENT SPECIALIST, GS-0301-13
PERCY STANFIELD, LOGISTICS MANAGEMENT SPECIALIST, GS-0346-13
ALLEN STEPHENS, QUALITY ASSURANCE SPECIALIST, GS-1910-13
JOSEPH KLEIN, PROCUREMENT ANALYST, GS-1102-14
EDWARD SIMBRO, PROCUREMENT ANALYST, GS-1102-14
RONALD VERBA, TECHNICAL REQUIREMENTS SPECIALIST, GS-1101-13
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ AT THE HEARING, THE PARTIES ENTERED INTO THE FOLLOWING
STIPULATIONS WHICH WILL BE DEEMED MOTIONS TO AMEND THE PETITION AND ARE
HEREBY GRANTED: (A) RALPH LYMAN, (COMMUNICATIONS SPECIALIST, GS-393-13)
AND GEORGE KOSTELNIK, (CONTRACT PRICE ANALYST, GS-1102-14) ARE
SUPERVISORS AND SHOULD BE EXCLUDED FROM THE BARGAINING UNIT. (B)
RICHARD NORRIS, (COMPUTER SPECIALIST, GS-0334-13), FREDERICK BEELBY
(MOTION PICTURE PRODUCTION SPECIALIST, GS-1071-13), MITCHELL ROSE
(MOTION PICTURE PRODUCTION SPECIALIST, GS-1071-13), THOMAS MARTIN
(SYSTEMS ENGINEERING MANAGEMENT SPECIALIST, GS-0301-13), ROBERT GUNNING
(TECHNICAL PUBLICATIONS MANAGEMENT SPECIALIST, GS-0301-13), DICK
STEVENSON (TRAFFIC MANAGEMENT SPECIALIST, GS-2130-13), JAMES BARNUM
(RESOURCE ANALYST, GS-0301-13), FRANKLIN FONG (RESOURCE ANALYST,
GS-0301-13), MICHAEL KOSCIELSKI (RESOURCE ANALYST, GS-0301-13), ROBERT
NORDLI (RESOURCE ANALYST, GS-0301-13), LEONARD WILCOX (RESOURCE ANALYST,
GS-0301-13), ROBERT TOMLINSON (RESOURCE ANALYST, GS-0301-14), STANDLEY
BURKE (CONTRACT PRICE ANALYST, GS-1102-13), EUGENE HORTON (CONTRACT
PRICE ANALYST, GS-1102-13), PATRICK KANOTI (CONTRACT PRICE ANALYST,
GS-1102-13), JOSEPH MALOUIN (CONTRACT PRICE ANALYST, GS-1102-13), REUBEN
MASON (CONTRACT PRICE ANALYST, GS-1102-13), JACK NEILSON (CONTRACT PRICE
ANALYST, GS-1102-13), MAURICE ROSENFELD (CONTRACT PRICE ANALYST,
GS-1102-13), ALLEN SOKALER (CONTRACT PRICE ANALYST, GS-1102-13), ARE NOT
SUPERVISORS OR MANAGEMENT OFFICIALS AND SHOULD BE INCLUDED IN THE
BARGAINING UNIT (C) THE POSITIONS OF RESOURCE ANALYST, GS-0301-13
(PREVIOUSLY HELD BY DAVID HANSEN AND GERALD HEYDINGER) SHOULD BE
INCLUDED WITHIN THE BARGAINING UNIT.
FURTHER, THE RECORD REVEALS THAT THREE OF THE POSITIONS IN DISPUTE
WERE VACANT AT THE TIME OF THE HEARING: PROCUREMENT ANALYST,
GS-1102-13; LOGISTICS MANAGEMENT SPECIALIST, GS-0346-13; AND
PROCUREMENT ANALYST, GS-1102-14. THE AUTHORITY WILL NOT MAKE
ELIGIBILITY DETERMINATIONS FOR VACANT POSITIONS. DEPARTMENT OF THE
TREASURY, BUREAU OF THE MINT, U.S. MINT, DENVER, COLORADO, 6 FLRA NO.
17(1981). ACCORDINGLY, THE AUTHORITY SHALL ORDER THAT THE PETITION BE
DISMISSED TO THE EXTENT THAT IT SEEKS TO CLARIFY THE UNIT ELIGIBILITY OF
THESE POSITIONS.
/3/ SECTION 7103(A)(10) OF THE STATUTE DEFINES A "SUPERVISOR" AS:
. . . AN INDIVIDUAL EMPLOYED BY AN AGENCY HAVING AUTHORITY IN THE
INTEREST OF THE AGENCY TO
HIRE, DIRECT, ASSIGN, PROMOTE, REWARD, TRANSFER, FURLOUGH, LAYOFF,
RECALL, SUSPEND,
DISCIPLINE, OR REMOVE, EMPLOYEES TO ADJUST THEIR GRIEVANCES, OR TO
EFFECTIVELY RECOMMEND SUCH
ACTION, IF THE EXERCISE OF THE AUTHORITY IS NOT MERELY ROUTINE OR
CLERICAL IN NATURE BUT
REQUIRES THE CONSISTENT EXERCISE OF INDEPENDENT JUDGMENT . . . .
/4/ THEREFORE IT IS UNNECESSARY TO PASS UPON THE ACTIVITY'S
CONTENTION THAT THESE INCUMBENTS ARE ALSO MANAGEMENT OFFICIALS, AND THEY
HAVE NOT BEEN LISTED IN APPENDIX B.
/5/ SECTION 7103(A)(11) OF THE STATUTE DEFINES "MANAGEMENT OFFICIAL"
AS:
. . . AN INDIVIDUAL EMPLOYED BY AN AGENCY IN A POSITION THE DUTIES
AND RESPONSIBILITIES OF
WHICH REQUIRE OR AUTHORIZE THE INDIVIDUAL TO FORMULATE, DETERMINE, OR
INFLUENCE THE POLICIES
OF THE AGENCY . . . .
9 FLRA 118; FLRA 5-CU-34; AUGUST 6, 1982.
2750TH AIR BASE WING,
AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
ACTIVITY
AND
LOCAL, F-88, INTERNATIONAL
ASSOCIATION OF FIREFIGHTERS
PETITIONER
CASE NO. 5-CU-34
DECISION AND ORDER CLARIFYING UNIT
UPON A PETITION DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
UNDER SECTION 7111(B)(2) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), A HEARING WAS HELD BEFORE A HEARING
OFFICER OF THE AUTHORITY. THE HEARING OFFICER'S RULINGS MADE AT THE
HEARING ARE FREE FROM PREJUDICIAL ERROR AND HEREBY AFFIRMED.
UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
PARTIES' CONTENTIONS, THE AUTHORITY FINDS: LOCAL F-88, INTERNATIONAL
ASSOCIATION OF FIREFIGHTERS (PETITIONER) WAS RECOGNIZED BY THE ACTIVITY
ON JULY 21, 1964, AS THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR A UNIT
OF ALL NON-SUPERVISORY EMPLOYEES OF THE FIRE PROTECTION DIVISION
DIRECTORATE OF CIVIL ENGINEERING, 2750TH AIR BASE WING, WRIGHT-PATTERSON
AIR FORCE BASE, OHIO. ESSENTIALLY, THE PETITION SEEKS TO CLARIFY THE
BARGAINING UNIT STATUS OF THE INCUMBENTS IN THE JOB CLASSIFICATION OF
SUPERVISORY FIREFIGHTER, GS-081-08 (STATION CHIEF) BASED ON THE
ACTIVITY'S CONTENTION THAT THEY ARE SUPERVISORS. /1/
THE RECORD ESTABLISHES THAT THE STATION CHIEFS ASSIGN WORK, ADJUST
GRIEVANCES, DISCIPLINE SUBORDINATES AND HAVE EFFECTIVELY RECOMMENDED
SUBORDINATES FOR PROMOTIONS AND AWARDS. FURTHER, THE RECORD REFLECTS
AND THE AUTHORITY FINDS THAT THE STATION CHIEFS DEVOTE A PREPONDERANCE
OF THEIR EMPLOYMENT TIME IN EXERCISING SUCH DUTIES WHICH ARE NOT MERELY
ROUTINE OR CLERICAL IN NATURE, BUT REQUIRE THE CONSISTENT EXERCISE OF
INDEPENDENT JUDGMENT. /2/ ACCORDINGLY THESE INCUMBENTS ARE SUPERVISORS
WITHIN THE MEANING OF SECTION 7103(A)(10) OF THE STATUTE AND SHALL BE
EXCLUDED FROM THE UNIT.
ORDER
IT IS HEREBY ORDERED THAT THE PETITION HEREIN BE DISMISSED.
ISSUED, WASHINGTON, D.C., AUGUST 6, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ SECTION 7103(A)(10) OF THE STATUTE DEFINES A "SUPERVISOR" AS:
. . . AN INDIVIDUAL EMPLOYED BY AN AGENCY HAVING AUTHORITY IN THE
INTEREST OF THE AGENCY TO
HIRE, DIRECT, ASSIGN, PROMOTE, REWARD, TRANSFER, FURLOUGH, LAYOFF,
RECALL, SUSPEND,
DISCIPLINE, OR REMOVE EMPLOYEES, TO ADJUST THEIR GRIEVANCES, OR TO
EFFECTIVELY RECOMMEND SUCH
ACTION, IF THE EXERCISE OF THE AUTHORITY IS NOT MERELY ROUTINE OR
CLERICAL IN NATURE BUT
REQUIRES THE CONSISTENT EXERCISE OF INDEPENDENT JUDGMENT, EXCEPT
THAT, WITH RESPECT TO ANY
UNIT WHICH INCLUDES FIREFIGHTERS OR NURSES, THE TERM 'SUPERVISOR'
INCLUDES ONLY THOSE
INDIVIDUALS WHO DEVOTE A PREPONDERANCE OF THEIR EMPLOYMENT TIME TO
EXERCISING SUCH
AUTHORITY(.)
/2/ SEE VETERANS ADMINISTRATION MEDICAL CENTER, FAYETTEVILLE, NORTH
CAROLINA, 8 FLRA NO. 115(1982) WHERE THE AUTHORITY APPLIED THE PHRASE
"PREPONDERANCE OF THEIR EMPLOYMENT TIME" AS CONTAINED IN THE SUPERVISORY
DEFINITION WITH REGARD TO THE DUTIES OF CERTAIN INDIVIDUALS CLASSIFIED
AS HEAD NURSES.
9 FLRA 117; FLRA 5-CA-736, 5-CA-737, 5-CA-738, AND 5-CA-805; AUGUST
5, 1982.
UNITED STATES AIR FORCE
2750TH AIR BASE WING HEADQUARTERS
AIR FORCE LOGISTICS COMMAND
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
RESPONDENT
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1138, AFL-CIO
CHARGING PARTY
CASE NOS. 5-CA-736
5-CA-737
5-CA-738
5-CA-805
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED
IN CERTAIN UNFAIR LABOR PRACTICES UNDER SECTION 7116(A)(1) AND (8) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE),
AND RECOMMENDING THAT THE CASE BE DISMISSED IN ITS ENTIRETY.
THEREAFTER, THE GENERAL COUNSEL FILED EXCEPTIONS TO THE JUDGE'S DECISION
AND THE RESPONDENT FILED AN OPPOSITION THERETO.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 OF THE STATUTE, THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION, AND THE ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS. /1/
IN AGREEMENT WITH THE JUDGE AND BASED ON HER CREDIBILITY FINDINGS,
THE AUTHORITY FINDS WITH RESPECT TO THE MEETINGS WHICH OCCURRED ON JUNE
25 AND JULY 14 THAT, INASMUCH AS THE EMPLOYEE INVOLVED DID NOT REQUEST
REPRESENTATION AT THE MEETINGS, THE EXCLUSIVE REPRESENTATIVE HAD NO
RIGHT UNDER SECTION 7114(A)(2)(B) OF THE STATUTE /2/ TO BE REPRESENTED
THEREAT. /3/ WITH RESPECT TO THE AUGUST 18 MEETING, THE AUTHORITY
FINDS, IN AGREEMENT WITH THE JUDGE AND BASED ON HERE CREDIBILITY
FINDINGS, THAT NO VIOLATION OF SECTION 7114(A)(2)(B) OCCURRED IN VIEW OF
THE FACT THAT, UPON THE EMPLOYEE'S REQUEST FOR REPRESENTATION,
RESPONDENT CHOSE TO TERMINATE THE EXAMINATION AND CONDUCT ITS
INVESTIGATION THROUGH OTHER SOURCES. FURTHER, THE AUTHORITY FINDS, IN
AGREEMENT WITH THE JUDGE, THAT THE SEPTEMBER 18-19 MEETINGS DID NOT
CONSTITUTE AN "EXAMINATION . . . IN CONNECTION WITH AN INVESTIGATION .
. . . " RATHER, THESE MEETINGS WERE CONDUCTED FOR THE SOLE PURPOSE OF,
AND WERE LIMITED TO, INFORMING THE EMPLOYEE OF A DECISION ALREADY
REACHED BY THE RESPONDENT AND COUNSELLING THE EMPLOYEE. /4/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NOS. 5-CA-736,
5-CA-737, 5-CA-738 AND 5-CA-805, BE, AND IT HEREBY IS, DISMISSED.
ISSUED WASHINGTON, D.C., AUGUST 5, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
DAVID W. KERBER,
ATTORNEY FOR RESPONDENT
SHARON A. BAUER,
ATTORNEY FOR THE GENERAL COUNSEL,
FEDERAL LABOR RELATIONS AUTHORITY
BEFORE: ISABELLE R. CAPPELLO
ADMINISTRATIVE LAW JUDGE
CASE NOS. 5-CA-736
5-CA-737
5-CA-738
5-CA-805
DECISION
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ., (HEREINAFTER,
REFERRED TO AS THE "STATUTE"), AND THE RULES AND REGULATIONS ISSUED
THEREUNDER AND PUBLISHED IN 45 FED.REG. 3482-3524 (1/7/81), 5 CFR 2421
ET SEQ.
PURSUANT TO CHARGES FILED BY LOCAL 1138 OF THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, CASE NOS. 5-CA-736, 737, 738, AND 805
WERE CONSOLIDATED AND A COMPLAINT AND NOTICE OF HEARING, DATED DECEMBER
11, 1980, WAS ISSUED BY THE REGIONAL DIRECTOR, CHICAGO REGION, OF THE
FEDERAL LABOR RELATIONS AUTHORITY (HEREINAFTER, THE "AUTHORITY"), AND
SUBSEQUENTLY AMENDED ON JANUARY 23, 1981. THE COMPLAINT ALLEGES THAT
THE RESPONDENT HAS VIOLATED SECTIONS 7116(A)(1) AND (8) OF THE STATUTE
BY REFUSING A REQUEST FOR UNION REPRESENTATION TO A BARGAINING-UNIT
EMPLOYEE AT COUNSELLING SESSIONS WHICH THE EMPLOYEE REASONABLY BELIEVED
MIGHT RESULT IN DISCIPLINARY ACTION BEING TAKEN AGAINST HIM. RESPONDENT
DENIES THAT VIOLATIONS HAVE OCCURRED.
A HEARING ON THE MATTER WAS HELD ON FEBRUARY 25, 1981, IN DAYTON,
OHIO. THE PARTIES APPEARED AND PRESENTED EVIDENCE. BRIEFS WERE FILED BY
GENERAL COUNSEL, ON APRIL 6, 1981, AND BY RESPONDENT, ON APRIL 1, 1981.
BASED UPON THE RECORD MADE AT THE HEARING, /5/ MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND THE BRIEFS, THE FOLLOWING FINDINGS,
CONCLUSIONS AND RECOMMENDED ORDER ARE MADE.
FINDINGS /6/
1. LOCAL 1138, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
(HEREINAFTER, THE "UNION"), IS THE EXCLUSIVE REPRESENTATIVE OF AN
APPROPRIATE UNIT OF EMPLOYEES AT THE AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO (HEREINAFTER, THE "RESPONDENT").
THE PARTIES ARE SUBJECT TO THE MASTER LABOR AGREEMENT BETWEEN THE AIR
FORCE LOGISTICS COMMAND AND THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO EXECUTED ON APRIL 3, 1979, AND IN EFFECT AT THE TIME
THIS DISPUTE AROSE.
2. MR. JAMES WEAVER, LOGISTICS MANAGEMENT SPECIALIST, AT
WRIGHT-PATTERSON AIR FORCE BASE IS EMPLOYED BY RESPONDENT AND IS A
MEMBER OF THE BARGAINING UNIT REPRESENTED BY THE UNION. HE HAS BEEN SO
EMPLOYED SINCE 1978. IN MARCH HE RECEIVED A "VERY GOOD", "EXCELLENT",
"OUTSTANDING", ANNUAL PERFORMANCE RATING FROM HIS SECOND-LINE
SUPERVISOR, IVAN R. TAYLOR. (TR. 24-25)
3. IN THE AFTERNOON OF JUNE 25, MR. WEAVER WAS CALLED INTO A MEETING
BY MR. TAYLOR, IN MR. TAYLOR'S OFFICE. WILLIAM SHEETS, ACTING
FIRST-LEVEL SUPERVISOR WAS ALSO PRESENT. MR. WEAVER HAD RETURNED TO
WORK ON JUNE 25, AFTER A PERIOD OF SICK LEAVE COMMENCING ON JUNE 2.
DURING THE JUNE 25 MEETING, MR. TAYLOR ASKED MR. WEAVER A SERIES OF
QUESTIONS REGARDING MR. WEAVER'S PHYSICAL CONDITION, FITNESS FOR DUTY,
USE OF SICK LEAVE, AND HIS KNOWLEDGE OF PROCEDURES FOR REQUESTING SICK
LEAVE. MR. WEAVER HAD BEEN RELEASED TO RETURN TO DUTY BY HIS PERSONAL
PHYSICIAN, AS WELL AS APPROVED TO RETURN TO WORK BY RESPONDENT'S MEDICAL
CENTER, ON THE MORNING OF JUNE 25.
MR. TAYLOR ASKED MR. WEAVER TO INITIAL A NOTATION THAT HAD BEEN MADE
ON MR. WEAVER'S FORM 971 SUPERVISORY RECORD (HEREINAFTER, THE "971")
STATING THAT MR. WEAVER HAD BEEN COUNSELLED ON PROPER PROCEDURES FOR
REQUESTING SICK LEAVE ON JUNE 25. THE MEETING LASTED ABOUT 30 MINUTES.
MR. TAYLOR HAD NEVER BEFORE BEEN SUBJECTED TO SUCH A COUNSELLING ACTION.
NOR HAD HE EVER BEEN DISCIPLINED. MR. WEAVER FILED A GRIEVANCE OVER
THE NOTATION MADE ON HIS 971.
4. ON SEPTEMBER 25, MR. WEAVER WAS GIVEN AN ORAL ADMONISHMENT FOR
FAILURE TO REQUEST SICK LEAVE IN ACCORDANCE WITH ESTABLISHED PROCEDURES.
AN ORAL ADMONISHMENT IS A RECOGNIZED TYPE OF DISCIPLINE IMPOSED BY
RESPONDENT. DEPENDING UPON THE RECORD OF THE EMPLOYEE, COUNSELLING IS
NORMALLY DONE BY MR. TAYLOR BEFORE AN ORAL ADMONISHMENT IS GIVEN. MR.
WEAVER'S "ACTIVITY AROUND THE 25TH OF JUNE PROBABLY LEAD TO THE . . .
ADMONISHMENT AT THE END OF SEPTEMBER." (TR 146)
5. WHETHER MR. WEAVER REQUESTED UNION REPRESENTATION AT THE JUNE 25
SESSION IS IN DISPUTE. MR. WEAVER RECALLS THAT HE DID. SEE TR 19 AND
20. HE SO INFORMED HIS UNION STEWARD, ON JUNE 26, WHEN CALLING HER
ABOUT FILING A GRIEVANCE OVER THE NOTATION MADE ON HIS 971. MR. TAYLOR
IS "POSITIVE" THAT HE DID NOT (TR 170); AND MR. SHEETS CORROBORATED THE
TESTIMONY OF MR. TAYLOR. MR. WEAVER WAS VERY UPSET AND EMOTIONAL WHEN
HE TALKED TO HIS UNION STEWARD, ON JUNE 26. HE WAS AN EMOTIONAL
WITNESS, AT THE HEARING, AND ADMITTED THAT, AS TO SOME DETAILS, HIS
RECOLLECTION HAD BECOME A LITTLE HAZY. MR. TAYLOR READILY CONCEDED THAT
MR. WEAVER REQUESTED UNION REPRESENTATION AT A LATER SESSION; AND NO
REASON IS APPARENT FOR HIS BEING LESS THAN CANDID ABOUT THE JUNE 25
MEETING. MR. SHEETS IS A FRIEND AND CO-WORKER OF MR. WEAVER AND
APPEARS TO HAVE NO REASON TO DISSEMBLE ABOUT ANY OF THE EVENTS HE
WITNESSED. ACCORDINGLY, I FIND MR. TAYLOR AND MR. SHEETS TO BE MORE
RELIABLE WITNESSES THAN MR. WEAVER ON THIS POINT; AND I CREDIT THEIR
RECOLLECTION THAT MR. WEAVER DID NOT REQUEST UNION REPRESENTATION AT THE
JUNE 25 SESSION.
6. MR. WEAVER WAS DETAILED TO WORK ON A B-52 PROJECT DURING THE
PERIOD OF AUGUST TO DECEMBER 16, 1979. IN APRIL OR MAY, THERE WAS "HALL
TALK" ABOUT MR. WEAVER'S PERFORMANCE ON THE B-52 DETAIL; AND MR. SHEETS
ADVISED HIM TO GET THE MATTER SURFACED AND CLEARED UP, AS IT COULD HURT
HIS CAREER. (TR 27) NEITHER MR. WEAVER NOR MR. SHEETS KNEW WHAT THE
PROBLEM WAS.
7. IN MAY, MR. WEAVER WAS DETAILED TO WORK ON AN F-16 PROJECT AT
FORT WORTH, TX. THIS DETAIL RESULTED IN MEMORANDUMS BEING WRITTEN TO
MR. WEAVER'S SUPERIORS, COMPLAINING ABOUT HIS CONDUCT DURING THE DETAIL.
IN EARLY JUNE, MR. WEAVER'S FIRST-LINE SUPERVISOR, MAJOR WOLF WAS
INFORMED BY A LT. COLONEL HERNANDEZ, WHO IS IN THE F-16 PROGRAM, OF "BAD
DEPORTMENT" OF MR. WEAVER WHILE HE WAS ON THE F-16 DETAIL. (TR 127-128)
THIS INFORMATION WAS RELAYED IN A PHONE CONVERSATION. MAJOR WOLF TOLD
THE LT. COLONEL TO SEND THE COMPLAINT IN "OFFICIALLY", IF HE WANTED "US
TO REACT TO THAT INFORMATION." (TR 128) MAJOR WOLF TOLD MR. TAYLOR ABOUT
THE COMPLAINT, BUT HE TOOK NO ACTION UNTIL THE ARRIVAL OF THE OFFICIAL
COMPLAINT, ON AUGUST 11.
8. BOTH THE F-16 AND B-52 DETAILS WERE IMPORTANT TO RESPONDENT'S
MISSION, WHICH IS TO PROVIDE MANAGEMENT SERVICE TO MILITARY COMPONENTS
WORKING ON VARIOUS WEAPON SYSTEMS. THE CONDUCT OF MR. WEAVER DURING
THESE DETAILS IS REGARDED AS A SERIOUS MATTER.
9. ON JUNE 27 A COLONEL NICHOLS WROTE A MEMORANDUM TO COLONEL
MONTGOMERY, MR. WEAVER'S THIRD-LINE SUPERVISOR. COLONEL NICHOLS
COMPLAINED ABOUT MR. WEAVER'S CONDUCT DURING THE AUGUST-DECEMBER 1979
DETAIL (REFERRED TO ALSO AS THE B-52 DETAIL) AND REQUESTED
RECONSIDERATION OF ANY INTENTION TO DETAIL HIM AGAIN TO THE COLONEL'S
GROUP WORKING ON THE B-52 PROJECT.
10. ON JULY 1, MAJOR WOLF, MR. WEAVER'S FIRST-LINE SUPERVISOR,
DETAILED MR. WEAVER TO THE COLONEL'S B-52 GROUP.
11. ON JULY 7, MR. WEAVER'S UNION STEWARD PRESENTED TO MR. TAYLOR
THE GRIEVANCE OVER THE JUNE 25 NOTATION MADE IN MR. WEAVER'S 971. PRIOR
TO JULY 7, MR. WEAVER HAD INFORMED MR. TAYLOR THAT THERE WOULD BE A
GRIEVANCE FILED OVER THE MATTER. MR. TAYLOR WAS VERY UPSET ABOUT A
GRIEVANCE BEING FILED. ON JULY 8, MR. TAYLOR WROTE A MEMO TO THE FILE
IN WHICH HE DETAILED THE JUNE 25 COUNSELLING SESSION WITH MR. WEAVER AND
THE REASON FOR THE ENTRY ON MR. WEAVER'S 971.
12. ON JULY 7, COLONEL NICHOLS AGAIN WROTE TO THE COLONEL MONTGOMERY
TO PROTEST MR. WEAVER'S ASSIGNMENT TO THE B-52 GROUP.
13. ON JULY 14, COLONEL MONTGOMERY RETURNED FROM A 2-WEEK LEAVE,
READ COLONEL NICHOLS' MEMORANDUMS OF JUNE 27 AND JULY 7, INFORMED MAJOR
WOLF THAT HE FOUND THEM "DISTURBING" AND SHOULD BE USED IN "COUNSELLING"
MR. WEAVER. (GC 3) COLONEL MONTGOMERY ORDERED MAJOR WOLF TO REPLACE MR.
WEAVER ON THE B-52 GROUP WITH SOMEONE ELSE AND ASKED TO BE ADVISED AS TO
"WHAT ACTIONS ARE BEING TAKEN TO PRECLUDE ANY FUTURE RECEIPT OF
CORRESPONDENCE OF THIS NATURE FROM OUR CUSTOMERS." (GC 3)
14. ON JULY 14, A SECOND COUNSELLING SESSION WAS HELD WITH MR.
WEAVER. MAJOR WOLF HAD TO BE ABSENT ON BUSINESS, SO THE SESSION WAS
HELD WITHOUT HIM, IN MR. TAYLOR'S OFFICE. MR. WEAVER ASKED PERMISSION
FROM MR. TAYLOR FOR MR. SHEETS TO ATTEND THE MEETING. PERMISSION WAS
GRANTED; AND MR. SHEETS DID ATTEND. MR. WEAVER WAS INFORMED THAT HE
WAS NO LONGER ASSIGNED TO THE B-52 GROUP. MR. WEAVER WAS SHOWN THE
NICHOLS' MEMORANDUMS REGARDING HIS CONDUCT ON THE 1979 B-52 DETAIL, AND
QUESTIONED ABOUT THE NATURE OF HIS CONDUCT WHILE ON THE 1979 DETAIL.
MR. WEAVER WAS ADMONISHED ABOUT HIS PERFORMANCE ON THAT DETAIL AND TOLD
THAT IT WAS "PRIMA FACIE UNSATISFACTORY AND DEFICIENT AND . . . AN
EMBARRASSMENT TO (MR. TAYLOR), TO COLONEL MONTGOMERY AND TO AFALD." (TR
26) SINCE MR. WEAVER WAS TO ATTEND A B-52 MEETING ON JULY 14, THE
CONCERN OF HIS SUPERVISORS, ON THAT DAY, WAS TO INFORM HIM THAT HE WAS
NOT TO ATTEND. NO DECISION WAS MADE, ON THAT DAY, AS TO ANY DISCIPLINE.
AN ANNOTATION DATED JULY 14 WAS PLACED ON MR. WEAVER'S 971 BY MR.
TAYLOR. MR. TAYLOR NOTED THAT MR. WEAVER ASSIGNMENT TO THE B-52
PLANNING ACTIVITY WAS TERMINATED BECAUSE OF "CONCERNS ABOUT MR. WEAVER'S
MARGINAL PERFORMANCE WHILE ASSIGNED TO THE PROGRAM OFFICE ON A PREVIOUS
TEMPORARY DETAIL," AND THAT "SPECIFIC PERFORMANCE OBJECTIVES WILL BE
DEVELOPED TO ENABLE MR. WEAVER TO IMPROVE HIS PERFORMANCE AND PREVENT
THIS TYPE OF CUSTOMER COMPLAINT FROM RECURRING." (GC 2.2)
15. WHETHER MR. WEAVER REQUESTED UNION REPRESENTATION AT THE JULY 14
SESSION IS IN DISPUTE. MR. WEAVER TESTIFIED THAT HE DID, AS SOON AS HE
WAS SHOWN THE NICHOLS' MEMORANDUMS BECAUSE HE REGARDED THEM AS "CLEARLY
LIBELLOUS." (TR 25) HE CALLED HIS UNION STEWARD, ON JULY 14, AFTER THE
SESSION, SEEMED VERY UPSET, COMPLAINED ABOUT HARASSMENT, AND DISCUSSED
FILING AN UNFAIR LABOR PRACTICE CHARGE. THE UNION STEWARD ALSO DOES NOT
RECALL MR. WEAVER TELLING HER, ON JULY 14, THAT HE HAD REQUESTED UNION
REPRESENTATION AT THE JULY 14 SESSION WITH MR. TAYLOR. ON A SUBSEQUENT
DAY, MR. WEAVER DID TELL HIS UNION STEWARD THAT HE REQUESTED UNION
REPRESENTATION AT THE JULY 14 SESSION. MR. TAYLOR TESTIFIED THAT MR.
WEAVER DID NOT REQUEST UNION REPRESENTATION AT THE JULY 14 SESSION. MR.
SHEETS ALSO TESTIFIED THAT, TO HIS KNOWLEDGE, NO SUCH REQUEST WAS MADE.
FOR THE REASONS STATED IN FINDING 5, ABOVE, I FIND MR. TAYLOR AND MR.
SHEETS TO BE MORE RELIABLE WITNESSES, ON THIS POINT, THEN MR. WEAVER;
AND I FIND THAT MR. WEAVER DID NOT REQUEST UNION REPRESENTATION AT THE
JULY 14 SESSION. MR. TAYLOR ALSO TESTIFIED THAT HE WOULD NOT HAVE
ALLOWED UNION REPRESENTATION, EVEN IF IT HAD BEEN REQUESTED.
16. ON AUGUST 18, MR. WEAVER WAS CALLED INTO A MEETING WITH MR.
TAYLOR AND MAJOR WOLF, IN MR. TAYLOR'S OFFICE. MR. WEAVER ASKED FOR AND
RECEIVED PERMISSION FOR MR. SHEETS TO ATTEND ALSO. THE PURPOSE OF THIS
MEETING WAS TO INTERVIEW MR. WEAVER ABOUT HIS BEHAVIOR DURING HIS
DETAIL, IN MAY, TO THE F-16 PROGRAM. AT THE AUGUST 18 MEETING MR.
WEAVER WAS SHOWN AN UNDATED LETTER FROM A COLONEL VOLAND STATING THAT
MR. WEAVER'S BEHAVIOR AT THE MAY 28 MEETING ON THE F-16 PROGRAM WAS
"TOTALLY UNSATISFACTORY, INAPPROPRIATE, AND EMBARRASSING" AND DETAILING
THE INSTANCES INVOLVED. (GC 5) ACCORDING TO MAJOR WOLF, MR. WEAVER GAVE
SOME EXPLANATION OF THE INSTANCES MENTIONED IN THE VOLAND MEMORANDUM,
BEFORE ASKING FOR REPRESENTATION, AND THAT AFTER REPRESENTATION WAS
SOUGHT, NO FURTHER QUESTIONING TOOK PLACE. ACCORDING TO MR. WEAVER, HE
ASKED FOR REPRESENTATION TWICE, THE FIRST TIME BEING AS SOON AS HE READ
THE VOLAND MEMORANDUM. MR. WEAVER CLAIMS THAT HE CONTINUED TO BE
QUESTIONED AFTER THE FIRST REQUEST WAS DENIED. (TR 31 AND 30) MAJOR
WOLF'S TESTIMONY ON THIS DISPUTED POINT IS DOCUMENTED IN A MEMORANDUM
DATED AUGUST 18 AND WAS BASICALLY CORROBORATED BY MR. TAYLOR AND MR.
SHEETS. ACCORDINGLY, I CONSIDER MAJOR WOLF'S VERSION TO BE MORE
RELIABLE AND FIND THAT MR. WEAVER WAS NOT QUESTIONED AFTER HE SOUGHT
REPRESENTATION. THE MEETING ENDED WHEN MAJOR WOLF ADVISED MR. WEAVER
THAT, UNDER THE PRESENT UNION CONTRACT, MANAGEMENT HAD NO REQUIREMENT TO
CONTINUE THE INTERVIEW IF REPRESENTATION WAS OBTAINED, AND MR. WEAVER
REQUESTED TIME TO LOOK AT HIS NOTES AND ORGANIZE HIS THOUGHTS.
17. FOLLOWING THE AUGUST 18 MEETING, MAJOR WOLF INQUIRED OF OTHERS
ABOUT THE VOLAND ALLEGATIONS AND RECEIVED CORROBORATION OF THEM. ON
SEPTEMBER 12, MR. TAYLOR, MAJOR WOLF AND SEVERAL OTHERS MET TO DISCUSS
"POSSIBLE DISCIPLINARY ACTION" AGAINST MR. WEAVER OVER THE F-16 MATTER,
THAT OCCURRED ON MAY 28. BECAUSE OF THE TIME DELAY CREATED BY THE F-16
COMMAND AND PENDING UNFAIR LABOR PRACTICE CHARGES FILED BY THE UNION ON
BEHALF OF MR. WEAVER, A DECISION WAS MADE THAT "NO DISCIPLINARY ACTION
SHOULD BE TAKEN AT THIS TIME," BUT THAT A CONSELLING SESSION WAS
APPROPRIATE. (GC 6) MAJOR WOLF RECOMMENDED THAT MR. WEAVER BE
COUNSELLED AND THAT A NOTATION OF THE COUNSELLING BE PLACED IN MR.
WEAVER'S 971, ALONG WITH A COPY OF THE VOLAND LETTER. MAJOR WOLF ALSO
RECOMMENDED THAT MR. WEAVER BE REMOVED FROM FURTHER PARTICIPATION IN THE
F16 PROGRAM. ON SEPTEMBER 15, COLONEL MONTGOMERY CONCURRED, EXCEPT FOR
THE RECOMMENDATION TO REMOVE HIM FROM THE F-16 PROGRAM.
18. ON SEPTEMBER 18, MR. WEAVER WAS CALLED INTO MAJOR WOLF'S OFFICE
FOR A MEETING WITH MAJOR WOLF. MAJOR WOLF HAD MR. SHEETS ATTEND AS A
"WITNESS". (TR 141) MAJOR WOLF ANNOUNCED THAT HE HAD MADE A
"DETERMINATION" IN THE F-16 MATTER AND THAT THIS WAS NOT A DISCIPLINARY
ACTION. (TR 75) MR. WEAVER THEN REQUESTED REPRESENTATION. THE REQUEST
WAS DENIED, AND THE MEETING ENDED. NO QUESTIONING OF MR. WEAVER WAS
CONDUCTED DURING THE SEPTEMBER 18 MEETING. MAJOR WOLF ENDED THE MEETING
SO THAT HE MIGHT CHECK WITH THE CIVILIAN PERSONNEL OFFICE TO INSURE THAT
HE WAS ACTING PROPERLY. IT IS RESPONDENT'S POSITION THAT THIS MEETING
WAS A COUNSELLING SESSION AT WHICH THERE IS NO RIGHT TO UNION
REPRESENTATION.
19. ON SEPTEMBER 19, MR. WEAVER WAS CALLED TO MAJOR WOLF'S OFFICE
FOR A CONTINUATION OF THE SEPTEMBER 18 MEETING. MR. SHEETS WAS AGAIN
PRESENT. MR. WEAVER AGAIN MADE A REQUEST FOR REPRESENTATION. IT WAS
AGAIN DENIED. MAJOR WOLF INFORMED MR. WEAVER THAT HE HAD COMPLETED HIS
INVESTIGATION OF THE F-16 MATTER, AND WAS ASSURED THAT THERE HAD BEEN A
SUBSTANTIAL AMOUNT OF IMPROPER CONDUCT. MAJOR WOLF COUNSELLED MR.
WEAVER ABOUT THE IMPROPER CONDUCT FOUND. HE GAVE MR. WEAVER NO
OPPORTUNITY TO RESPOND. MAJOR WOLF STATED THAT THE PURPOSE OF THE
MEETING WAS FOR COUNSELLING, AND NO DISCIPLINARY ACTION WOULD BE TAKEN.
MAJOR WOLF ENTERED A NOTATION ON MR. WEAVER'S 971, WHICH MR. SHEETS
INITIALED AFTER MR. WEAVER REFUSED. THE NOTATION STATED THAT MR. WEAVER
HAD BEEN COUNSELLED ABOUT SLEEPING AT AND EXTENDED ABSENCES FROM
CONFERENCES, COURTESY, AND KEEPING MANAGEMENT INFORMED OF PHYSICAL
CONDITIONS AFFECTING HIS ABILITY TO PERFORM A JOB.
20. ON SEPTEMBER 19, COLONEL MONTGOMERY SENT A MEMORANDUM REPLYING
TO THE AUGUST 11 LETTER FROM THE F-16 PROJECT OFFICIAL. SEE FINDINGS 7
AND 16, ABOVE. COLONEL MONTGOMERY STATED THAT "DISCIPLINARY ACTIONS WAS
CONSIDERED", BUT ADVISED AGAINST BECAUSE OF THE DELAY BY F-16 MANAGEMENT
IN OFFICIALLY NOTIFYING HIM OF THE INCIDENT. (R 4) COLONEL MONTGOMERY
STATED THAT MR. WEAVER WAS COUNSELLED ABOUT THE MATTER AND AN ENTRY MADE
ON HIS 971. HE ALSO STATED THAT MR. WEAVER WOULD REMAIN ASSIGNED TO THE
F-16 PROGRAM BECAUSE OF UNDERMANNING IN HIS OFFICE.
DISCUSSION AND CONCLUSIONS
THE RIGHT TO UNION REPRESENTATION IS EMBODIED IN SECTION
7114(A)(2)(B) OF THE STATUTE, WHICH PROVIDES:
AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT SHALL BE GIVEN THE
OPPORTUNITY TO BE
REPRESENTED AT . . . ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A
REPRESENTATIVE OF THE
AGENCY IN CONNECTION WITH AN INVESTIGATION IF (I) THE EMPLOYEE
REASONABLY BELIEVES THE
EXAMINATION MAY RESULT IN DISCIPLINARY ACTION AGAINST THE EMPLOYEE;
AND (II) THE EMPLOYEE
REQUESTS REPRESENTATION.
AT THE JUNE 25 AND JULY 14, MEETINGS IT HAS BEEN FOUND THAT NO
REQUEST FOR REPRESENTATION WAS MADE. THEREFORE, THE SECTION
7114(A)(2)(B) RIGHT DID NOT BECOME OPERATIVE, UNDER THE STATUTE.
AT THE AUGUST 18 MEETING, A PROPER REQUEST WAS MADE, AND OBJECTIVE
FACTS OF RECORD SUPPORT THE BELIEF OF MR. WEAVER THAT THE EXAMINATION OF
HIM AT THAT MEETING MIGHT LEAD TO DISCIPLINARY ACTION. JUST ONE MONTH
PREVIOUSLY, HE HAD BEEN SUBJECTED TO A COUNSELLING FOR DEFICIENT AND
EMBARRASSING CONDUCT, AND HAD BEEN RELIEVED OF AN ASSIGNMENT BECAUSE OF
IT. THE AUGUST 18 SESSION WAS CONCERNED WITH ALLEGATIONS OF
UNSATISFACTORY AND EMBARRASSING CONDUCT OVER ANOTHER ASSIGNMENT. THE
FACT THAT DISCIPLINE, IN FACT, WAS NOT IMPOSED IS OF NO CONSEQUENCE,
UNDER THE STATUTE. AFFIRMING THE REASONABLENESS OF MR. WEAVER'S BELIEF
THAT DISCIPLINE MIGHT RESULT FROM THE AUGUST 18 MEETING, HOWEVER, IS THE
FACT THAT THE ALLEGATIONS AGAINST HIM WERE SUBSEQUENTLY CONFIRMED TO THE
SATISFACTION OF RESPONDENT, AND THE ONLY APPARENT REASON DISCIPLINE WAS
NOT IMPOSED WAS THE DELAY IN SURFACING THE COMPLAINT, PLUS THE PENDENCY
OF UNFAIR LABOR PRACTICE CHARGES, WHICH CAUSED RESPONDENT TO BE SKITTISH
ABOUT PROCEEDING WITH DISCIPLINE. /7/ THUS, THE RIGHT TO REPRESENTATION
DID BECOME OPERATIVE. HOWEVER, AS SOON AS MR. WEAVER INVOKED THE RIGHT,
RESPONDENT EXERCISED ITS RIGHT TO DISCONTINUE THE EXAMINATION AND
CONDUCT ITS INVESTIGATION THROUGH OTHER SOURCES. THIS MANAGEMENT RIGHT
IS CLEARLY OUTLINED IN NLRB V. WEINGARTEN, 420 U.S. 251, 88 LRRM
2689(1975), A SUPREME COURT DECISION UPON WHICH CONGRESS FASHIONED
SECTION 7114(A)(2)(B). SEE INTERNAL REVENUE SERVICE, WASHINGTON, D.C.
AND INTERNAL REVENUE SERVICE, HARTFORD DISTRICT OFFICE, 4 FLRA NO.
37(1980), PAGE 10 OF JUDGE'S DECISION. IN WEINGARTEN, THE COURT STATED
THAT THE:
. . . EXERCISE OF THE RIGHT MAY NOT INTERFERE WITH LEGITIMATE
EMPLOYER PREROGATIVES. THE
EMPLOYER HAS NO OBLIGATION TO JUSTIFY HIS REFUSAL TO ALLOW UNION
REPRESENTATION, AND DESPITE
REFUSAL, THE EMPLOYER IS FREE TO CARRY ON HIS INQUIRY WITHOUT
INTERVIEWING THE EMPLOYEE, AND
THUS LEAVE TO THE EMPLOYEE THE CHOICE BETWEEN HAVING AN INTERVIEW
UNACCOMPANIED BY HIS
REPRESENTATIVE, OR HAVING NO INTERVIEW AND FOREGOING ANY BENEFITS
THAT MIGHT BE DERIVED FROM
ONE.
SEE 88 LRRM AT 2691-2692. THIS IS EXACTLY WHAT HAPPENED AT THE
AUGUST 18 MEETING.
NEITHER SEPTEMBER SESSION WAS AN "EXAMINATION", WITHIN THE MEANING OF
THE STATUTE. NO QUESTIONS WERE ASKED OF MR. WEAVER. HE WAS SIMPLY BEING
INFORMED OF A DECISION ALREADY REACHED BY RESPONDENT. COMPARE MOUNT
VERNON TANKER COMPANY V. NLRB, 549 F.2D 571, 94 LRRM 3054 (CA 9, 1977),
INVOLVING A SIMILAR RIGHT TO UNION REPRESENTATION UNDER THE NATIONAL
LABOR RELATIONS ACT, WHEREIN THE COURT RULED THAT A SHIP'S CAPTAIN DID
NOT VIOLATE THAT ACT, WHEN HE REFUSED TO ALLOW A MERCHANT SEAMAN TO HAVE
HIS UNION REPRESENTATIVE PRESENT, BECAUSE:
THE OUTCOME OF THE PROCEEDING DOES NOT DEPEND UPON THE SHOWING THAT
MAY BE MADE BY THE
SEAMAN WITH OR WITHOUT THE AID OF CONCERTED ACTIVITY. THE RESULT
FROM THE OUTSET IS A
FOREGONE CONCLUSION; FROM THE OUTSET, ALL THAT REMAINS TO BE
ACCOMPLISHED IS A FORMALITY FOR
CEREMONY ITSELF AND A NOTICE TO THE SEAMAN THAT RESULTS.
MOUNT VERNON TANKER CO., SUPRA, 94 LRRM AT 3057-3058.
OTHER ISSUES RAISED BY THE PARTIES NEED NOT BE RESOLVED, IN VIEW OF
THE ABOVE CONCLUSIONS.
ULTIMATE FINDINGS AND ORDER
THE GENERAL COUNSEL HAS NOT ESTABLISHED, BY THE PREPONDERANCE OF THE
EVIDENCE, THAT RESPONDENT HAS VIOLATED SECTION 7116(A)(1) AND (8) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
ACCORDINGLY, IT IS ORDERED THAT THE COMPLAINTS IN CASE NOS.
5-CA-736, 737, 738, AND 805 BE, AND HEREBY ARE DISMISSED.
ISABELLE R. CAPPELLO
ADMINISTRATIVE LAW JUDGE
DATED: JULY 15, 1981
WASHINGTON, D.C.
/1/ THE RESPONDENT EXCEPTED TO CERTAIN CREDIBILITY FINDINGS MADE BY
THE JUDGE. THE DEMEANOR OF WITNESSES IS A FACTOR OF CONSEQUENCE IN
RESOLVING ISSUES OF CREDIBILITY, AND THE JUDGE HAS HAD THE ADVANTAGE OF
OBSERVING THE WITNESSES WHILE THEY TESTIFIED. THE AUTHORITY WILL NOT
OVERRULE A JUDGE'S RESOLUTION WITH RESPECT TO CREDIBILITY UNLESS A CLEAR
PREPONDERANCE OF ALL THE RELEVANT EVIDENCE DEMONSTRATES THAT SUCH
RESOLUTION WAS INCORRECT. THE AUTHORITY HAS EXAMINED THE RECORD
CAREFULLY, AND FINDS NO BASIS FOR REVERSING THE JUDGE'S CREDIBILITY
FINDINGS.
/2/ SECTION 7114(A)(2)(B) PROVIDES:
(2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
SHALL BE GIVEN THE
OPPORTUNITY TO BE REPRESENTED AT--
(B) ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A REPRESENTATIVE OF
THE AGENCY IN
CONNECTION WITH AN INVESTIGATION IF--
(I) THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT
IN DISCIPLINARY ACTION
AGAINST THE EMPLOYEE; AND
(II) THE EMPLOYEE REQUESTS REPRESENTATION.
/3/ CF. LACKLAND AIR FORCE BASE EXCHANGE, LACKLAND AIR FORCE BASE,
TEXAS, 5 FLRA NO. 60(1981), WHEREIN IT WAS FOUND THAT AN EMPLOYEE WHO
WAS SUBJECTED TO AN EXAMINATION IN CONNECTION WITH AN INVESTIGATION HAD
MADE THE REQUISITE REQUEST FOR REPRESENTATION.
/4/ SEE GENERALLY DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL SHIPYARD,
7 FLRA NO. 129(1982); LACKLAND AIR FORCE BASE EXCHANGE, LACKLAND AIR
FORCE BASE, TEXAS, 5 FLRA NO. 60(1981); AND INTERNAL REVENUE SERVICE,
DETROIT, MICHIGAN, 5 FLRA NO. 53(1981).
/5/ THE RECORD IS CORRECTED, AT PAGES 230, LINE 1, BY DELETING THE
WORD "RELEVANCY" AND SUBSTITUTING THE WORD "RELIABILITY".
/6/ REFERENCES HEREIN WILL BE AS FOLLOWS: "TR" REFERS TO THE
TRANSCRIPT; "GC" REFERS TO THE EXHIBITS OF THE GENERAL COUNSEL; "R"
REFERS TO THE EXHIBITS OF THE RESPONDENT; "GC BR" REFERS TO THE BRIEF
OF THE GENERAL COUNSEL; AND "RBR" REFERS TO THE BRIEF OF THE
RESPONDENT. MULTIPAGE EXHIBITS WILL BE REFERRED TO THE EXHIBIT NUMBER,
FOLLOWED BY THE PAGE NUMBER. DATES REFERENCES ARE IN 1980, UNLESS
OTHERWISE SPECIFIED.
/7/ RESPONDENT ARGUES THAT MR. WEAVER COULD NOT HAVE REASONABLY
EXPECTED THAT DISCIPLINE WOULD OCCUR BECAUSE MR. WEAVER HIMSELF KNEW
THAT THE ALLEGATIONS WERE TOO OLD TO JUSTIFY DISCIPLINARY ACTION. SEE
RBR 26. THE RECORD SHOWS ONLY THAT MR. WEAVER HAD BEEN TOLD BY HIS
UNION REPRESENTATIVE THAT THE AGE OF THE ALLEGATIONS MADE THEM "HIGHLY
SUSPECT." (TR 58) THIS WAS NOT SUFFICIENT TO ALLAY HIS FEARS, OR MAKE
UNREASONABLE HIS BELIEF.
9 FLRA 116; FLRA 9-CA-655; AUGUST 5, 1982.
DEPARTMENT OF DEFENSE,
MARE ISLAND SHIPYARD,
VALLEJO, CALIFORNIA
RESPONDENT
AND
FEDERAL EMPLOYEES METAL
TRADES COUNCIL,
VALLEJO, CALIFORNIA
CHARGING PARTY
CASE NO. 9-CA-655
DECISION AND ORDER
THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
DIRECTOR'S "ORDER TRANSFERRING CASE TO THE AUTHORITY" IN ACCORDANCE WITH
SECTION 2429.1(A) OF THE AUTHORITY'S RULES AND REGULATIONS.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
STIPULATION OF ACTS AND THE PARTIES' CONTENTIONS, THE AUTHORITY FINDS:
THE AMENDED COMPLAINT ALLEGES THAT RESPONDENT VIOLATED SECTION
7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE) WHEN IT REFUSED TO AGREE TO A FULL SCOPE
NEGOTIATED GRIEVANCE PROCEDURE TO BE INCORPORATED IN ITS COLLECTIVE
BARGAINING AGREEMENT WITH THE CHARGING PARTY (THE UNION).
THE UNION IS THE EXCLUSIVE REPRESENTATIVE OF CERTAIN WAGE GRADE
EMPLOYEES OF THE RESPONDENT. IN AUGUST 1978 THE PARTIES BEGAN
NEGOTIATIONS ON A NEW COLLECTIVE BARGAINING AGREEMENT. DURING THE
COURSE OF NEGOTIATIONS THE RESPONDENT PROPOSED THAT CERTAIN MATTERS BE
EXCLUDED FROM THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE. DESPITE
DISCUSSION AND EXCHANGES OF COUNTERPROPOSALS, THE PARTIES WERE UNABLE TO
REACH AGREEMENT ON THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE AND
REACHED IMPASSE ON THE SUBJECT.
THE POSITIONS OF THE GENERAL COUNSEL AND CHARGING PARTY ARE
SUBSTANTIALLY SIMILAR TO THOSE POSITIONS TAKEN IN VERMONT AIR NATIONAL
GUARD, BURLINGTON, VERMONT, 9 FLRA NO. 92(1982), WHEREIN WE HELD THAT
THE SCOPE OF THE GRIEVANCE PROCEDURE IS A MANDATORY SUBJECT FOR
BARGAINING AND, IF IMPASSE IS REACHED, IS SUBJECT TO IMPASSE RESOLUTION
PROCEDURES. BASED ON THE REASONS SET FORTH IN THAT DECISION, THE
AUTHORITY FINDS THAT RESPONDENT'S ACTIONS HEREIN DID NOT VIOLATE THE
STATUTE AS ALLEGED IN THE AMENDED COMPLAINT.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 9-CA-655 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., AUGUST 5, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
9 FLRA 115; FLRA 9-CA-445; AUGUST 5, 1982.
DEPARTMENT OF THE AIR FORCE,
MCCHORD AIR FORCE BASE,
MCCHORD AIR FORCE BASE, WASHINGTON
RESPONDENT
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1501, AFL-CIO
CHARGING PARTY
AND
OFFICE OF PERSONNEL MANAGEMENT
INTERVENOR
CASE NO. 9-CA-445
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED
IN UNFAIR LABOR PRACTICES AS ALLEGED IN THE COMPLAINT AND RECOMMENDING
THAT THE COMPLAINT BE DISMISSED. EXCEPTIONS WERE FILED BY THE GENERAL
COUNSEL AND THE CHARGING PARTY (THE UNION), AND AN OPPOSITION TO THE
EXCEPTIONS WAS FILED BY THE RESPONDENT. /1/
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND THE ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS BASED ON THE REASONS
SET FORTH IN VERMONT AIR NATIONAL GUARD, BURLINGTON, VERMONT, 9 FLRA NO.
92(1982), WHEREIN WE HELD THAT THE SCOPE OF THE GRIEVANCE PROCEDURE IS A
MANDATORY SUBJECT FOR BARGAINING AND, IF IMPASSE IS REACHED, IS SUBJECT
TO IMPASSE RESOLUTION PROCEDURES. /2/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 9-CA-445 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., AUGUST 5, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
JERRY M. BRASEL, ESQUIRE
FOR THE RESPONDENT
NANCY E. PRITIKIN, ESQUIRE
FOR THE GENERAL COUNSEL
STAN STANDIFER
FOR THE CHARGING PARTY
LEO M. REID
FOR THE INTERVENOR
BEFORE: GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
CASE NO. 9-CA-445
DECISION
STATEMENT OF THE CASE