Department of Defense, Department of the Navy, Consolidated Civilian Personnel Office (Respondent) and National Federation of Federal Employees, Local 1461 (Complainant) 

 



[ v01 p717 ]
01:0717(80)CA
The decision of the Authority follows:


 1 FLRA No. 80
 
 DEPARTMENT OF DEFENSE,
 DEPARTMENT OF THE NAVY,
 CONSOLIDATED CIVILIAN
 PERSONNEL OFFICE
 Respondent
 
 and
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 1461
 Complainant
 
                                            Assistant Secretary
                                            Case No. 22-08765(CA)
 
                            DECISION AND ORDER
 
    ON JANUARY 25, 1979, ADMINISTRATIVE LAW JUDGE EVERETTE E. THOMAS
 ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
 PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN CONDUCT
 WHICH WAS VIOLATIVE OF SECTION 19(A)(6) OF EXECUTIVE ORDER 11491, AS
 AMENDED, AND RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE
 CERTAIN AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE
 LAW JUDGE'S RECOMMENDED DECISION AND ORDER.  THE ADMINISTRATIVE LAW
 JUDGE FURTHER FOUND THAT CERTAIN OTHER CONDUCT OF THE RESPONDENT WAS
 NOT
 VIOLATIVE OF THE ORDER.  THEREAFTER, BOTH PARTIES FILED TIMELY
 EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
 ORDER AND THE COMPLAINANT FILED A RESPONSE TO RESPONDENT'S EXCEPTIONS.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
 TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
 NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
 (44 F.R. 7).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
 PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
 HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
 HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS
 ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE
 SUBJECT CASE, INCLUDING THE PARTIES' EXCEPTIONS AND THE COMPLAINANT'S
 RESPONSE TO RESPONDENT'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE
 ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS AS
 MODIFIED.
 
    THE AUTHORITY AGREES WITH THE ADMINISTRATIVE LAW JUDGE'S CONCLUSION
 THAT THE REORGANIZATION OF THE PUBLIC WORKS DEPARTMENT OF THE U.S. NAVAL
 OBSERVATORY, EFFECTIVE NOVEMBER 1, 1977, SUBSTANTIALLY AFFECTED UNIT
 EMPLOYEES AND WAS, THEREFORE, A MATTER ON WHICH THE COMPLAINANT WAS
 ENTITLED TO BARGAIN ABOUT WITH RESPECT TO ITS IMPACT ON UNIT EMPLOYEES.
 IN SO FINDING THE AUTHORITY NOTES THAT THE REORGANIZATION RESULTED IN
 THE ELIMINATION OF A NUMBER OF POSITIONS NOT REFERRED TO BY THE
 ADMINISTRATIVE LAW JUDGE IN HIS DECISION, /1/ MOST OF WHICH WERE IN THE
 BARGAINING UNIT, AND THAT IS PLACED IN A SUBORDINATE POSITION TO THE
 NEWLY ESTABLISHED POSITION OF GENERAL ENGINEER GS-801-12, TWO UNIT
 EMPLOYEES, THE SHOP PLANNER WD-6701-05 AND THE PLANNER/ESTIMATOR
 WD-6701-08 (NOW ENTITLED PLANNER ESTIMATOR/INSPECTOR WD-6101-8) WHO HAD
 PREVIOUSLY REPORTED TO THE FACILITY MANAGER.  ACCORDINGLY, AS THE
 RESPONDENT PREVENTED THE COMPLAINANT FROM HAVING THE OPPORTUNITY TO SEEK
 BARGAINING ON THE IMPACT OF THE REORGANIZATION ON UNIT EMPLOYEES, THE
 AUTHORITY SHALL ISSUE AN APPROPRIATE REMEDIAL ORDER.
 
                                 ORDER /2/
 
    PURSUANT TO SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS OF
 THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
 THAT THE DEPARTMENT OF THE NAVY CONSOLIDATED CIVILIAN PERSONNEL OFFICE
 SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING TO AFFORD, OR DIRECTING THE COMMANDING OFFICER OF THE
 U.S. NAVAL OBSERVATORY NOT TO AFFORD, THE NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1461, THE EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES OF
 THE OBSERVATORY, THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT
 CONSONANT WITH LAW AND REGULATIONS, ON THE IMPACT ON ADVERSELY AFFECTED
 EMPLOYEES OF THE REORGANIZATION OF NOVEMBER 1, 1977, AT THE OBSERVATORY.
 
    (B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ACCORDED BY EXECUTIVE
 ORDER 11491, AS AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION:
 
    (A) UPON REQUEST OF THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
 LOCAL 1461, THE EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES OF THE U.S.
 NAVAL OBSERVATORY, WASHINGTON, D.C., MEET AND CONFER, OR CAUSE THE
 OBSERVATORY TO MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND
 REGULATIONS, ON THE IMPACT ON ADVERSELY AFFECTED EMPLOYEES OF THE
 REORGANIZATION OF NOVEMBER 1, 1977, AT THE OBSERVATORY.
 
    (B) POST AT THE U.S. NAVAL OBSERVATORY, WASHINGTON, D.C., 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 OF THE DEPARTMENT OF THE NAVY
 CONSOLIDATED CIVILIAN PERSONNEL OFFICE, WASHINGTON, D.C., AND SHALL BE
 POSTED AND MAINTAINED BY HIM FOR SIXTY (60) CONSECUTIVE DAYS THEREAFTER,
 IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES
 WHERE NOTICES TO EMPLOYEES OF THE U.S. NAVAL OBSERVATORY ARE CUSTOMARILY
 POSTED.  THE DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
 NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY IN WRITING WITHIN 30
 DAYS FROM THE DATE OF THIS ORDER, WHAT STEPS HAVE BEEN TAKEN TO COMPLY
 HEREWITH.
 
    ISSUED, WASHINGTON, D.C., JULY 5, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
           PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 
            RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
 
          POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
 
              CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 
         WE HEREBY NOTIFY EMPLOYEES OF THE U.S. NAVAL OBSERVATORY,
 
                             WASHINGTON, D.C.
 
    WE WILL NOT FAIL TO AFFORD, NOR WILL WE DIRECT THE COMMANDING OFFICER
 OF THE U.S. NAVAL OBSERVATORY NOT TO AFFORD, THE NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 1461, THE EXCLUSIVE REPRESENTATIVE OF THE
 EMPLOYEES OF THE OBSERVATORY, THE OPPORTUNITY TO MEET AND CONFER, TO THE
 EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE IMPACT ON ADVERSELY
 AFFECTED EMPLOYEES OF THE REORGANIZATION OF NOVEMBER 1, 1977, AT THE
 OBSERVATORY.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
 COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED.
 
    WE WILL UPON REQUEST OF THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
 LOCAL 1461, THE EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES OF THE U.S.
 NAVAL OBSERVATORY, WASHINGTON, D.C. MEET AND CONFER, OR CAUSE THE
 OBSERVATORY TO MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND
 REGULATIONS, ON THE IMPACT ON ADVERSELY AFFECTED EMPLOYEES OF THE
 REORGANIZATION OF NOVEMBER 1, 1977, AT THE OBSERVATORY.
 
                          DEPARTMENT OF THE NAVY
 
                  CONSOLIDATED CIVILIAN PERSONNEL OFFICE
 
    DATED:  . . .  BY:  . . .
 
                                BY:  . . .
 
                                (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
 DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
 ROOM 509, VANGUARD BUILDING, P.O. BOX 19257, 1111-20TH STREET, N.W.,
 WASHINGTON, D.C. 20036.
 
    HERBERT L. ZIPPERIAN
 
    LABOR RELATIONS SPECIALIST
 
    ASSISTANT DEPUTY CHIEF OF NAVAL
 
    OPERATIONS, NAVY DEPARTMENT
 
    WASHINGTON, D.C.
 
                            FOR THE RESPONDENT
 
    ROBERT ENGLEHART
 
    NATIONAL FEDERATION OF FEDERAL
 
    EMPLOYEES
 
    1016-16TH STREET, N.W.
 
    WASHINGTON, D.C.
 
                            FOR THE COMPLAINANT
 
    BEFORE:  EVERETTE E. THOMAS
 
    ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
                           PRELIMINARY STATEMENT
 
    THIS CASE AROSE UNDER EXECUTIVE ORDER 11491, AS AMENDED, FOLLOWING A
 COMPLAINT FILED ON JANUARY 1, 1978 BY THE NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1461 (HEREINAFTER, THE "UNION"), AGAINST THE DEPARTMENT
 OF DEFENSE, DEPARTMENT OF THE NAVY CONSOLIDATED CIVILIAN PERSONNEL
 OFFICE (HEREINAFTER, THE "RESPONDENT").  A NOTICE OF HEARING WAS ISSUED
 BY THE REGIONAL ADMINISTRATOR ON JULY 13, 1978.
 
    THE COMPLAINT ALLEGED THAT THE RESPONDENT VIOLATED SECTION 19(A)1,
 19(A)5, AND 19(A)(6) OF EXECUTIVE ORDER 11491 (HEREINAFTER, THE "ORDER")
 BY ITS:  (1) FAILURE "TO ACCORD EFFECTIVE RECOGNITION" TO UNION
 REPRESENTATIVES DURING A MEETING WITH MANAGEMENT ON AUGUST 5, 1977;  (2)
 REFUSAL TO CONSULT AND ADVICE TO OTHER MANAGEMENT TO REFUSE TO CONSULT
 PRIOR TO IMPLEMENTATION OF A REORGANIZATION PLAN;  AND (3) THE DISPLAY
 OF "ABUSIVE AND DISCOURTEOUS" BEHAVIOR TOWARDS UNION REPRESENTATIVES.
 THE SECTION 19(A)(5) ALLEGATION WAS DISMISSED BY THE REGIONAL
 ADMINISTRATOR PRIOR TO ISSUANCE OF THE NOTICE OF HEARING.
 
    A HEARING WAS HELD ON NOVEMBER 9, 1978 IN WASHINGTON, D.C.  ALL
 PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND
 CROSS-EXAMINE WITNESSES AND TO INTRODUCE EVIDENCE BEARING ON THE ISSUES
 INVOLVED HEREIN.
 
    THE RESPONDENT'S POSITION, AS EXPLAINED DURING OPENING REMARKS, WAS
 THAT IT WAS NOT A PROPER PARTY BECAUSE IT IS SOLELY AN AGENT OF AND
 ACTING UNDER THE DIRECTION AND RESPONSIBILITY OF THE SUPERINTENDENT OF
 THE U.S. NAVAL OBSERVATORY.  THE UNION'S POSITION IS THAT ALTHOUGH THE
 SUPERINTENDENT MAY BE CHARGED WITH THE OBLIGATION TO BARGAIN, HE IS IN
 FACT COMPLETELY CAPTIVE OF THE ADVICE OF THE RESPONDENT AND ONLY
 FUNCTIONS IN A MINISTERIAL CAPACITY.  RELATIONS BETWEEN THE UNION AND
 THE SUPERINTENDENT HAVE BEEN SATISFACTORY AND THE UNION BELIEVES ANY
 ORDER DIRECTED TO THE SUPERINTENDENT WOULD BE USELESS BECAUSE OF THIS
 DOMINION OR CONTROL EXERCISED BY THE RESPONDENT.
 
    UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR AND MEMORANDA AND/OR BRIEFS SUBMITTED BY
 COUNSEL OR REPRESENTATIVE FOR THE RESPECTIVE PARTIES, I MAKE THE
 FOLLOWING FINDINGS AND CONCLUSIONS.
 
                             FINDINGS OF FACT
 
    1.  THE COMPLAINANT UNION, LOCAL 1461;  IS, . . . AT ALL TIMES
 MATERIAL HEREIN HAS BEEN, THE EXCLUSIVE REPRESENTATIVE FOR THREE UNITS
 COMPRISED OF PROFESSIONAL EMPLOYEES, GUARDS, AND ALL OTHER CIVILIAN
 EMPLOYEES, MINUS EXCLUSIONS REQUIRED BY THE ORDER, AT THE U.S. NAVAL
 OBSERVATORY, WASHINGTON, D.C.
 
    2.  IN 1962, THE NAVY MERGED TWO CIVILIAN PERSONNEL OFFICES TO FORM A
 SINGLE OFFICE CALLED THE CONSOLIDATED INDUSTRIAL RELATION'S OFFICE.  ITS
 MISSION WAS TO PROVIDE CIVILIAN PERSONNEL STAFF SERVICES TO THE
 COMMANDING OFFICERS, NAVAL STATION, WASHINGTON, D.C., TO WHICH THE
 OFFICE WAS ATTACHED, AND TO 24 OTHER ACTIVITIES.  THE U.S. NAVAL
 OBSERVATORY (HEREINAFTER, THE "ACTIVITY") WAS ONE OF THE ACTIVITIES
 INVOLVED, AND ON OCTOBER 31, 1966, ENTERED INTO AN "AGREEMENT FOR
 INDUSTRIAL RELATIONS STAFF SERVICES" (JT. EXH. 1) WITH THE CONSOLIDATED
 INDUSTRIAL RELATIONS OFFICE.  ON OCTOBER 7, 1976, THAT OFFICE, ALONG
 WITH NINE OTHERS, WAS ESTABLISHED AS A SEPARATE ACTIVITY REPORTING
 DIRECTLY TO THE CHIEF OF NAVAL OPERATIONS.  (RESP. EXH. 1) ITS MISSION
 WAS (AND IS) TO PROVIDE COMPLETE CIVILIAN PERSONNEL SERVICES TO ASSIGNED
 NAVAL ACTIVITIES AS SPECIFIED IN SERVICING AGREEMENTS WITH THOSE
 ACTIVITIES.  THE NAME OF THE OFFICE WAS CHANGED TO CONSOLIDATED CIVILIAN
 PERSONNEL OFFICE (CCPO).  THE 1966 AGREEMENT BETWEEN CCPO AND THE
 ACTIVITY HAS BEEN IN EFFECT DURING ALL TIMES RELEVANT HEREIN.
 
    3.  THE CCPO AND THE ACTIVITY ARE SEPARATE AND INDEPENDENT ACTIVITIES
 WHICH REPORT IN THE CHAIN OF COMMAND TO THE CHIEF OF NAVAL OPERATIONS.
 THE CCPO HAS BEEN DELEGATED AUTHORITY TO "PROVIDE COMPLETE CIVILIAN
 PERSONNEL SERVICES TO ASSIGNED NAVY ACTIVITIES AS SPECIFIED IN CIVILIAN
 PERSONNEL MANAGEMENT SERVICES AGREEMENTS." (RESP. EXH. 1, P. 1) THE
 INTRODUCTION TO THE AGREEMENT OF 1966 STATES, IN PERTINENT PART:
 
    THE DEPARTMENT OF THE NAVY'S BASIC POLICY FOR CIVILIAN PERSONNEL
 ADMINISTRATION REQUIRES
 
    THE HEAD OF THE ACTIVITY TO PROVIDE FOR SOUND MANAGEMENT CONTROL,
 DIRECTION AND SUPPORT OF HIS
 
    CIVILIAN PROGRAM, IN ORDER TO ASSURE CONFIDENT, EFFICIENT, AND
 EQUITABLE CIVILIAN PERSONNEL
 
    MANAGEMENT THROUGHOUT THE NAVY.
 
    CIVILIAN PERSONNEL MANAGEMENT IS THEREFORE A BASIC RESPONSIBILITY OF
 THE HEAD OF THE
 
    ACTIVITY AND THE LINE ORGANIZATION OF . . . ACTIVITY WHICH EMPLOYS
 CIVILIANS.  TO DISCHARGE
 
    THESE RESPONSIBILITIES PROPERLY, THE HEAD OF THE ACTIVITY AND HIS
 SUBORDINATE LINE
 
    ORGANIZATION REQUIRE THE SERVICES OF A COMPETENT INDUSTRIAL RELATIONS
 STAFF TO PROVIDE (1)
 
    EXPERT GUIDANCE REGARDING EFFECTIVE APPLICATION OF ACCEPTED
 PRINCIPLES AND PRACTICES OF MODERN
 
    PERSONNEL ADMINISTRATION AND THE REQUIREMENTS OF APPLICABLE LAWS,
 REGULATIONS, AND
 
    INSTRUCTIONS, AND (2) ESSENTIAL INDUSTRIAL RELATIONS STAFF ASSISTANCE
 IN THE PROCESSING OF
 
    FORMALIZED PERSONNEL ACTIONS, THE MAINTENANCE OF PERSONNEL RECORDS,
 AND THE PREPARATION OF
 
    REQUIRED REPORTS.
 
    WITH REGARD TO LABOR RELATIONS IN PARTICULAR, PARAGRAPH 6 OF PART I
 OF THE AGREEMENT (JT. EXH. 1, P. 4) STATES:
 
    MANAGEMENT WILL MEET AND DEAL WITH EMPLOYEE ORGANIZATIONS AS REQUIRED
 BY NCPI 721.
 
    CIRO (NOW CCPO) WILL COORDINATE EMPLOYEE-MANAGEMENT COOPERATION AND
 RELATED MATTERS.
 
    4.  SOMETIME PRIOR TO AUGUST, 1977 THE COMMANDING OFFICER
 (HEREINAFTER, THE "C.O.") OF THE ACTIVITY DECIDED TO REORGANIZE THE
 PUBLIC WORKS DEPARTMENT OF THE ACTIVITY.  PRIOR TO THE REORGANIZATION,
 BARGAINING UNIT EMPLOYEES IN THREE BRANCHES REPORTED TO FOREMEN.  THE
 FOREMAN REPORTED TO A FACILITY MANAGER.  THE FACILITY MANAGER AND A
 PROCUREMENT ASSISTANT REPORTED TO THE PUBLIC WORKS OFFICER, A MILITARY
 BILLET.  UNDER THE REORGANIZATION, BARGAINING UNIT EMPLOYEES IN THE SAME
 THREE BRANCHES REPORTED TO THE SAME FOREMAN AS BEFORE.  THE FOREMAN, TWO
 MOTOR VEHICLE OPERATORS AND A PROCUREMENT ASSISTANT REPORT TO THE PUBLIC
 WORKS OFFICER, STILL A MILITARY BILLET.  HOWEVER, THE POSITION OF
 FACILITY MANAGER (CIVILIAN) WAS ELIMINATED AND A GENERAL ENGINEER
 POSITION WAS ESTABLISHED WITH TWO SUBORDINATE POSITIONS.  ALTHOUGH THE
 THREE BRANCHES CONTAINING UNIT EMPLOYEES WERE ESSENTIALLY UNCHANGED,
 THEIR FOREMEN REPORT DIRECTLY TO THE MILITARY PUBLIC WORKS OFFICER.  THE
 REORGANIZATION THEREFORE ELIMINATED A CIVILIAN BUFFER BETWEEN THE UNIT
 EMPLOYEES AND THE MILITARY SUPERVISOR. /3/ IT ALSO ELIMINATED A POSITION
 TO WHICH AT LEAST SOME OF THE EMPLOYEES COULD ASPIRE.  I FIND THAT THE
 REORGANIZATION EFFECTED A SUBSTANTIAL CHANGE IN WORKING CONDITIONS AND
 CREATED A SIGNIFICANT IMPACT ON UNIT PERSONNEL.
 
    5.  THE REORGANIZATION PLANNED PRIOR TO AUGUST, 1977, AND NOW A FAIT
 ACCOMPLI, WAS TO BECOME EFFECTIVE ON NOVEMBER 1, 1977.  THE UNION WAS
 NOTIFIED SHORTLY AFTER THE DECISION TO REORGANIZE AND A MEETING WAS
 SCHEDULED BY THE C.O. TO EXPLAIN THE DETAILS AND DISCUSS POSSIBLE
 EFFECTS THEREOF.  THE CCPO ADVISED THE C.O. THAT A CCPO REPRESENTATIVE
 SHOULD ATTEND THE MEETING.
 
    6.  THE RECORD ESTABLISHES THAT THE MEETING OF AUGUST 5, 1977 WAS
 DOMINATED BY THE CCPO REPRESENTATIVE.  THE UNION ASKED FOR SUFFICIENT
 INFORMATION TO DETERMINE WHETHER THE IMPACT OF THE REORGANIZATION WOULD
 BE GREAT ENOUGH TO BECOME THE SUBJECT OF BARGAINING.  THE CCPO
 REPRESENTATIVE INTERRUPTED BY BANGING HIS FIST ON THE TABLE AND
 INDICATING THAT HE WOULD NOT ALLOW SUCH NONSENSE TO CONTINUE.  HIS
 POSITION WAS THAT THE IMPACT OF THE REORGANIZATION WAS NOT A SUBJECT
 ABOUT WHICH THE UNION HAD ANY RIGHT TO CONSULTATION OR BARGAINING.  THIS
 POSITION WAS REPEATED SEVERAL TIMES THROUGHOUT THE MEETING TO THE
 APPARENT EMBARRASSMENT OF THE C.O.  THE CCPO REPRESENTATIVE COMPLAINED
 DURING THE MEETING THAT THE UNION PRESIDENT HAD, OVER A LONG PERIOD OF
 TIME, BEEN BOTHERING THE C.O. BY FREQUENT VISITS TO HIS OFFICE.  HE
 FURTHER STATED THAT HE FELT THE MEETING WAS A WASTE OF TIME AND THAT THE
 ACTIVITY'S INTERESTS WOULD BE BETTER SERVED IF EVERYONE WOULD RETURN TO
 THE WORK WHICH THEY WERE BEING PAID TO DO.  THIS STATEMENT WAS OF
 SUFFICIENT CONCERN THAT SEVERAL UNION MEMBERS SUBMITTED LEAVE REQUESTS
 FOR THE TIME TAKEN TO ATTEND THE MEETING.
 
    7.  WHILE THE UNION WAS PROVIDED CERTAIN BASIC INFORMATION SUCH AS A
 REORGANIZATION CHART, DURING THE MEETING OF AUGUST 5, 1978, MOST OF
 INQUIRIES DURING THE MEETING WERE NOT GIVEN SUBSTANTIVE RESPONSES.  THE
 AUGUST 5TH MEETING WAS INTENDED TO BE FOR THE PURPOSE OF PROVIDING
 INFORMATION SO THAT THE UNION COULD MAKE AN INFORMAL DECISION WHETHER TO
 REQUEST BARGAINING OVER IMPACT AND IMPLEMENTATION OF THE DECISION TO
 REORGANIZE.  ALTHOUGH THE UNION DID NOT FORMALLY ASK TO NEGOTIATE
 IMPACT, SUCH A REQUEST WOULD HAVE BEEN A FUTILE GESTURE UNDER THE
 CIRCUMSTANCES.  THE CCPO REPRESENTATIVE INSISTED THAT REORGANIZATION WAS
 NOT A PROPER SUBJECT FOR BARGAINING.  HE MADE IT QUITE CLEAR THAT IN HIS
 OPINION THERE WAS NOTHING TO NEGOTIATE.  THIS . . . WAS NOT CONTRADICTED
 BY THE ACTIVITY.  IN FACT, THE C.O. TOLD THE UNION THAT HE WAS COMPELLED
 TO GO ALONG WITH WHATEVER RECOMMENDATIONS WERE MADE BY THE CCPO.
 
    8.  THE RECORD REFLECTS TWO PRIOR INCIDENTS IN WHICH THE CCPO
 OVERRULED ACTION TAKEN BY THE ACTIVITY.  IN ONE INSTANCE THE ACTIVITY
 HAD AGREED WITH THE UNION TO PROCESS AN APPLICATION TO ENROLL AN
 EMPLOYEE IN A HEALTH PLAN DURING A CLOSED SEASON.  ON ANOTHER, THE CCPO
 REFUSED TO REQUEST THAT PAYROLL DEDUCTIONS BE MADE FOR UNION DUES, AFTER
 AN AGREEMENT TO THAT EFFECT HAD BEEN REACHED BETWEEN THE ACTIVITY AND
 THE UNION.
 
    9.  IN VIEW OF THE ROLE EXERCISED BY CCPO IN ITS RELATIONSHIP WITH
 THE UNION AND PARTICULARLY BECAUSE OF THE AUTHORITY IT ASSERTED OVER THE
 ACTIVITY, I FIND THAT CCPO ASSUMED THE POSITION OF AGENCY MANAGEMENT
 WITH REGARD TO THE MATTERS INVOLVED IN THE COMPLAINT HEREIN.  I FURTHER
 FIND THAT, HAVING ASSUMED THE POSITION OF AGENCY MANAGEMENT, CCPO
 REFUSED TO BARGAIN WITH THE UNION CONCERNING THE IMPACT OF THE
 REORGANIZATION ON EMPLOYMENT CONDITIONS.
 
    10.  ALTHOUGH THE CCPO REPRESENTATIVE'S BEHAVIOR DURING THE MEETING
 OF AUGUST 5, 1977 MAY HAVE BEEN RATHER DOMINEERING AND OBSTINATE, I DO
 NOT FIND THAT IT REACHED THE POINT OF BEING SUFFICIENTLY ABUSIVE OR
 DISCOURTEOUS TO CONSTITUTE INTERFERENCE, RESTRAINT OR COERCION.  THE
 REPRESENTATIVE'S CONDUCT WHILE MAINTAINING HIS ASSERTION THAT THE
 REORGANIZATION WAS NOT A PROPER SUBJECT FOR UNION CONSIDERATION, DID
 NOT, IN MY VIEW, CONSTITUTE AN UNFAIR LABOR PRACTICE.
 
                        DISCUSSION AND CONCLUSIONS
 
    THE RESPONDENT AND THE ACTIVITY (NAVAL OBSERVATORY) ARE COLLATERAL
 ACTIVITIES WITHIN THE DEPARTMENT OF THE NAVY.  NORMALLY THE
 RESPONSIBILITY FOR BARGAINING OVER IMPACT OF A DECISION TO REORGANIZE
 WOULD REST WITH THE HEAD OF THE ACTIVITY WHO MADE THE DECISION.
 HOWEVER, IN THIS CASE THERE IS CONSIDERABLE MERIT TO THE ARGUMENT THAT
 UNDER THE NAVY'S ORGANIZATIONAL STRUCTURE THE C.O. OF THE ACTIVITY HAS
 BEEN PLACED IN SUCH A POSITION THAT HE HAS LITTLE FREEDOM OF CHOICE IN
 CERTAIN PERSONNEL MATTERS.  HIS ACTIVITY HAS AN AGREEMENT TO RECEIVE
 ADVICE FROM, AND HAVE ITS PERSONNEL SERVICES PROVIDED BY, A COLLATERAL
 ACTIVITY WHICH HAS THE REQUISITE EXPERTISE AND FACILITIES.  THE C.O.
 WOULD OBVIOUSLY BE EXPECTED IF NOT REQUIRED, TO GIVE CONSIDERABLE
 DEFERENCE TO THE WISHES OF AN ACTIVITY ESTABLISHED BY THE NAVY TO
 ADMINISTER HIS PERSONNEL PROGRAM.
 
    RESPONDENT CCPO'S CONTENTION THAT IT IS MERELY A SERVICING
 ORGANIZATION UNDER ITS CONTRACT WITH THE ACTIVITY AND THEREFORE AN AGENT
 OF THE ACTIVITY IS CONTRARY TO THE ACTUAL WORKING RELATIONSHIP BETWEEN
 THE OFFICES.  ALTHOUGH THE FORMAL AGREEMENT IS SOMEWHAT AMBIGUOUS AS TO
 WHERE THE FINAL AUTHORITY FOR LABOR RELATIONS RESTS, THERE IS NO
 QUESTION THAT THE CCPO DID EXERCISE INDEPENDENT DECISION AUTHORITY BY
 THE MANNER IN WHICH IT CONTROLLED OR INFLUENCED THE ACTIVITY'S ACTIONS.
 THE UNION CERTAINLY HAD NO DOUBT AS TO WHO MADE THE FINAL DECISIONS IN
 LABOR-MANAGEMENT RELATIONS.  EVEN IF THE FORMAL AGREEMENT GAVE THE
 ACTIVITY FINAL RESPONSIBILITY FOR LABOR RELATIONS, IN THE UNDERSIGNED'S
 VIEW THE ACTIVITY HAD LONG SINCE RELINQUISHED THE AUTHORITY FOR
 LABOR-MANAGEMENT DECISIONS TO THE CCPO.
 
    ALTHOUGH THE CCPO MAY HAVE BEEN OBLIGATED TO ADVISE THE ACTIVITY AND
 PROVIDE CERTAIN ASSISTANCE, ITS PARTICIPATION IN THE MEETING OF AUGUST
 5TH, AND ITS ACTIONS ON TWO OTHER OCCASIONS, PARTICULARLY ITS REFUSAL TO
 PROCESS THE PAYROLL DUES WITHHOLDING AGREEMENT, WENT BEYOND MERE ADVICE
 AND ASSISTANCE.  IT IS BASIC HORNBOOK LAW THAT, UNDER APPROPRIATE
 CIRCUMSTANCES, AN AGENCY MAY, THROUGH THE EXERCISE OF APPARENT
 AUTHORITY, ASSUME THE RESPONSIBILITY AND LIABILITY OF THE PRINCIPAL.  IT
 IS EQUALLY WELL ESTABLISHED THAT WHERE A DOCUMENT IS AMBIGUOUS AS TO
 WHAT WAS INTENDED, PAROL EVIDENCE OF SUCH FACTS IF FREELY ADMITTED.
 
    THE COUNCIL'S DECISION IN NAVAL AIR REWORK FACILITY PENSACOLA AND
 SECRETARY OF THE NAVY, A/SLMR NO. 608, FLRC NO. 76A-37. REPORT NO. 125,
 SUPPORTS THE PROPOSITION THAT CONDUCT OF AGENCY MANAGEMENT AT A LEVEL
 ABOVE THE UNIT OF EXCLUSIVE RECOGNITION MAY PROVIDE THE BASIS FOR A
 VIOLATION, WHEN CONSIDERED TOGETHER WITH VIOLATIVE CONDUCT AT THE LOWER
 ORGANIZATION LEVEL.  THE COUNCIL ALSO STATED:
 
    WHERE HE (THE ASSISTANT SECRETARY) FINDS THAT AN ACT OR CONDUCT
 CONSTITUTES AN UNFAIR LABOR
 
    PRACTICE AND THAT THE INDIVIDUALS WHO COMMITTED THE ACT ARE AGENCY
 MANAGEMENT, THERE IS NO
 
    BASIS IN THE ORDER TO DRAW ARTIFICIAL DISTINCTIONS BETWEEN
 ORGANIZATIONAL LEVELS OF SUCH
 
    AGENCY MANAGEMENT SO AS TO RELIEVE THEM OF THE RESPONSIBILITY FOR
 THEIR ACTS WHICH WOULD
 
    OTHERWISE BE VIOLATIVE OF THE ORDER.
 
    (W)HEN ACTS AND CONDUCT CONSTITUTE A REFUSAL TO CONFER, CONSULT, OR
 NEGOTIATE AS REQUIRED
 
    BY THE ORDER, SUCH ACTS AND CONDUCT MAY PROPERLY BE FOUND VIOLATIVE
 OF SECTION 19(A)(6)
 
    REGARDLESS OF THE ORGANIZATIONAL LEVEL OF THE MEMBER OF AGENCY
 MANAGEMENT WHO COMMITTED THE
 
    VIOLATIVE CONDUCT.  ID, P. 5.
 
    ALTHOUGH THE COUNCIL NOTED THAT THE OBLIGATION TO NEGOTIATE COINCIDES
 WITH THE UNIT OF EXCLUSIVE RECOGNITION, IT FOUND THAT THIS OBLIGATION
 MAY BE VIOLATED BY A HIGHER MANAGEMENT LEVEL WHEN IT INITIATES UNLAWFUL
 CONDUCT. IN CONCLUDING THAT "AGENCY MANAGEMENT" VIOLATED THE ORDER, THE
 COUNCIL IN NAVAL AIR, SUPRA, NOTED THAT IT WAS THE INITIATING CONDUCT OF
 THE DEPARTMENT WHICH WAS VIOLATIVE, RATHER THAN THE "MINISTERIAL"
 CONDUCT OF THE ACTIVITY WHICH HAD NO CHOICE IN THE MATTER.
 
    HERE THE NAVY ESTABLISHED A SEPARATE ACTIVITY TO PROVIDE "COMPLETE
 CIVILIAN PERSONNEL SERVICES" TO ASSIGNED SHORE ACTIVITIES.  ALTHOUGH IT
 MAY HAVE INTENDED THAT THE FINAL RESPONSIBILITY FOR LABOR RELATIONS
 DECISIONS WOULD REST WITH THE LINE ACTIVITY, SUCH WAS NOT THE FINAL
 RESULT.  RATHER THAN LIMITING ITS ROLE TO PROVIDING ADVISE AND
 ASSISTANCE, THE SERVICING ACTIVITY DOMINATED AND USURPED THE POWER OF
 THE LINE ACTIVITY.  THE ACTIVITY C.O. ADMITTED TO THE UNION THAT HE HAD
 TO GO ALONG WITH THE DECISIONS OF THE CCPO.  FOR ALL PRACTICAL PURPOSES
 THE ACTIVITY HAD DUEL LEADERSHIP.  THE C.O. MANAGED THE ACTIVITY'S
 OPERATIONAL FUNCTION AND THE CCPO MANAGED ITS PERSONNEL AND LABOR
 RELATION ACTIVITIES.  IT WOULD BE OF LITTLE IMPORT TO HOLD THE C.O. OR
 THE ACTIVITY ACCOUNTABLE FOR MATTERS OVER WHICH FINAL RESPONSIBILITY WAS
 IN FACT EXERCISED BY A COLLATERAL ORGANIZATION.  IN PERSONNEL MATTERS,
 THE ACTIVITY WAS CAPTIVE TO IMPLEMENT THE DECISIONS OF THE CCPO.
 
    WITH REGARD TO THE ACTUAL CONDUCT WHICH I HAVE FOUND TO BE VIOLATIVE,
 THE CCPO REPRESENTATIVE REPEATEDLY ANNOUNCED AT THE AUGUST 5TH MEETING
 THAT REORGANIZATION WAS NOT A PROPER SUBJECT FOR IMPACT BARGAINING.
 THIS WAS INTERPRETED BY THE UNION TO MEAN THAT THE ACTIVITY WAS
 PRECLUDED FROM NEGOTIATING.  ALTHOUGH DECISIONS TO REORGANIZE ARE NOT
 NEGOTIABLE IN THEMSELVES, IMPLEMENTATION PROBLEMS ARE WHERE THE
 EMPLOYEES ARE POTENTIALLY IMPACTED.  LABOR MANAGEMENT RELATIONS IN THE
 FEDERAL SERVICE, FLRC-75-1 (APRIL 1975, P. 70).  THERE WAS A POTENTIALLY
 SIGNIFICANT CHANGE IN WORKING CONDITIONS AS A RESULT OF THE
 REORGANIZATION.  WHERE THIS POSSIBILITY FOR IMPACT EXISTS, THERE IS AN
 OBLIGATION TO BARGAIN.  INTERNAL REVENUE SERVICE, . . .  CENTER, A/SLMR
 NO. 983;  UNITED STATES AIM FORCE ELECTRONICS SYSTEM DIVISION, HANSON
 AIR FORCE BASE, A/SLMR NO. 511.  AS MENTIONED ABOVE, THE FACT THAT THE
 UNION HAD NOT FORMALLY ASKED TO BARGAIN OVER IMPACT MAKES NO DIFFERENCE
 WHERE IT WAS OBVIOUS THAT SUCH REQUEST WOULD BE FLATLY REFUSED.  A PARTY
 SHOULD NOT BE REQUIRED TO MAKE A USELESS GESTURE MERELY FOR THE SAKE OF
 FORMALITY.
 
    IN VIEW OF THE FOREGOING, I FIND THAT THE RESPONDENT HEREIN VIOLATED
 SECTION 19(A)(6) OF EXECUTIVE ORDER 11491 BY ITS ACTIONS TO PRECLUDE
 BARGAINING OVER THE IMPACT OF THE REORGANIZATION.
 
                                   ORDER
 
    PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
 SECTION 203.26(B) OF THE REGULATIONS, THE FEDERAL LABOR RELATIONS
 AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF NAVY CONSOLIDATED
 CIVILIAN PERSONNEL OFFICE SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING TO AFFORD OR DIRECTING THE COMMANDING OFFICER OF THE U.S.
 NAVAL OBSERVATORY TO FAIL TO AFFORD THE EXCLUSIVE REPRESENTATIVE OF ITS
 EMPLOYEES, THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT CONSONANT
 WITH LAW AND REGULATIONS, ON THE IMPACT OF THE REORGANIZATION OF THE
 U.S. NAVAL OBSERVATORY.
 
    (B) IN ANY LIKE OR RELATED MANNER, INTERFERRING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED.
 
    2.  POST AT THE U.S. NAVAL OBSERVATORY, WASHINGTON, D.C., 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 COMMANDING OFFICER, U.S. NAVAL OBSERVATORY,
 DEPARTMENT OF THE NAVY, WASHINGTON, D.C., AND SHALL BE POSTED AND
 MAINTAINED BY HIM FOR SIXTY (60) CONSECUTIVE DAYS THEREAFTER, IN
 CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE
 NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.  THE COMMANDING OFFICER
 SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED
 OR DEFACED OR COVERED BY ANY OTHER MATERIAL.
 
    3.  THE CONSOLIDATED CIVILIAN PERSONNEL OFFICE SHALL, PURSUANT TO
 SECTION 203.27 OF THE REGULATIONS, REPORT TO THE FEDERAL LABOR RELATIONS
 AUTHORITY IN WRITING WITHIN THIRTY (30) DAYS FROM DATE OF THIS ORDER,
 WHAT STEPS HAVE BEEN TAKEN TO COMPLY WITH THE SAID ORDER.
 
                            EVERETTE E. THOMAS
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JANUARY 25, 1979
 
    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 EXECUTIVE ORDER 11491, AS AMENDED
 
             LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE
 
    WE WILL NOT FAIL TO AFFORD, OR DIRECT THE COMMANDING OFFICER OF THE
 U.S. NAVAL OBSERVATORY TO FAIL TO AFFORD, THE NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 1461, THE EXCLUSIVE REPRESENTATIVE OF OUR
 EMPLOYEES, THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT CONSONANT
 WITH LAW AND REGULATIONS, ON THE IMPACT OF THE REORGANIZATION OF THE
 U.S.  NAVAL OBSERVATORY.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
 COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED.
 
                          DEPARTMENT OF THE NAVY
 
                  CONSOLIDATED CIVILIAN PERSONNEL . . .
 
    DATED:  . . .  BY:  . . .
 
                                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
 ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES LABOR-MANAGEMENT SERVICES
 ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR WHOSE ADDRESS IS:
 FEDERAL LABOR RELATIONS AUTHORITY, ROOM 809, VANGUARD BUILDING, P.O. BOX
 19257, 1111-20TH STREET, N.W., WASHINGTON, D.C. 10036
 
    /1/ THE POSITIONS WHICH WERE ELIMINATED INCLUDED:  GARDENER
 WG-5003-06 (VACANT);  ADMINISTRATIVE SERVICES MANAGER GS-0301 (VACANT);
 JANITOR WG-3566-01 (VACANT);  AND BOILER PLANT OPERATOR WG-5402-07.
 (COMPLAINANT'S EXHIBITS 1 AND 2;  RESPONDENT'S EXHIBITS 2 AND 4.)
 
    /2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
 OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    /3/ TH