Norfolk Naval Shipyard (Respondent) and International Federation of Professional and Technical Engineers, Local One (Complainant) 

 



[ v03 p92 ]
03:0092(15)CA
The decision of the Authority follows:


 3 FLRA No. 15
 
 NORFOLK NAVAL SHIPYARD
 Respondent
 
 and
 
 INTERNATIONAL FEDERATION OF PROFESSIONAL
 AND TECHNICAL ENGINEERS, LOCAL ONE
 Complainant
 
                                            Assistant Secretary
                                            Case No. 22-09154(CA)
 
                            DECISION AND ORDER
 
    ON AUGUST 16, 1979, ADMINISTRATIVE LAW JUDGE SAMUEL A. CHAITOVITZ
 ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
 PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN THE UNFAIR LABOR
 PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT IT CEASE AND
 DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION.  THE RESPONDENT
 FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION
 AND ORDER.
 
    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
 (45 F.R. 3482, JANUARY 17, 1980).  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 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 RESPONDENT'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS
 THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION
 AS MODIFIED HEREIN.
 
    THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT VIOLATED
 SECTION 19(A)(1) AND (6) OF THE ORDER BY UNILATERALLY ENDING THE
 EXISTING PRACTICE OF FREE ACCESS BY EMPLOYEES TO CERTAIN WORK FILES USED
 IN THE PERFORMANCE OF THEIR DUTIES, AS WELL AS IN PREPARING RESPONSES TO
 ADVERSE RATINGS, APPRAISALS AND LETTERS OF CAUTION, AND THEREAFTER
 REQUIRING A SUPERVISOR'S PERMISSION TO USE THE FILES.  THE FAILURE TO
 GIVE NOTICE ALSO PRECLUDED AN OPPORTUNITY TO NEGOTIATE ABOUT THE IMPACT
 OF THE DECISION, IN FURTHER VIOLATION OF SECTION 19(A)(1) AND (6).  IN
 REACHING THIS CONCLUSION, THE ADMINISTRATIVE LAW JUDGE FOUND, AMONG
 OTHER THINGS, THAT ALTHOUGH USE OF THE FILES FACILITATED THE PERFORMANCE
 OF EMPLOYEE DUTIES, THE NEW RULE WAS MERELY A CHANGE IN HOW EMPLOYEES
 SECURED ACCESS TO THE FILES AND, THUS, NEGOTIABLE AS IT WAS NOT A
 MANAGEMENT RIGHT RESERVED IN SECTIONS 11(B) AND 12(B)(5) OF THE ORDER.
 CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THE AUTHORITY FINDS THAT THE
 CHANGE IN PROCEDURES FOR EMPLOYEE ACCESS TO THE WORK FILES, AS USED IN
 THE PERFORMANCE OF THEIR DUTIES, RELATED TO THE RESPONDENT'S METHODS OF
 OPERATION, AND WAS THUS A DECISION RESERVED TO MANAGEMENT BY SECTION
 12(B)(5) OF THE ORDER.  /1/ ACCORDINGLY, THAT ASPECT OF THE COMPLAINT
 WILL BE DISMISSED.  THE AUTHORITY HEREBY ADOPTS THE REMAINDER OF THE
 ADMINISTRATIVE LAW JUDGE'S DECISION, WHICH FOUND VIOLATIONS OF SECTION
 19(A)(1) AND (6) FOR THE FAILURE TO GIVE NOTICE AND OPPORTUNITY TO
 BARGAIN ABOUT THE IMPACT OF THE CHANGE IN ACCESS FOR PERFORMANCE OF
 EMPLOYEE DUTIES, AS WELL AS FOR THE FAILURE TO BARGAIN OVER THE CHANGE
 IN PRACTICE REGARDING ACCESS TO FILES FOR PREPARING RESPONSES TO CHARGES
 OF POOR WORK, AND THE IMPACT OF THAT CHANGE.  /2/
 
                                   ORDER
 
    PURSUANT TO SECTION 2400.2 OF THE 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 NORFOLK NAVAL SHIPYARD, NORFOLK, VIRGINIA, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) ENFORCING THE POLICY OF REQUIRING EMPLOYEES IN CODE 134.1 TO SEEK
 PERMISSION FROM THEIR SUPERVISOR PRIOR TO GAINING ACCESS TO, EXAMINING
 AND USING WORK FILES FOR THE PURPOSE OF RESPONDING TO EVALUATIONS BY
 MANAGEMENT CONCERNING THEIR WORK PERFORMANCE.
 
    (B) CHANGING THE PROCEDURES FOR EMPLOYEES TO GAIN ACCESS TO WORK
 FILES USED FOR NON-DUTY PURPOSES WITHOUT FIRST AFFORDING LOCAL ONE,
 INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, THE
 EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES, OR ANY OTHER EXCLUSIVE
 REPRESENTATIVE OF EMPLOYEES, NOTICE OF ANY INTENDED CHANGE, AND AN
 OPPORTUNITY TO BARGAIN CONCERNING THE INTENDED CHANGE, ITS
 IMPLEMENTATION, OR ITS IMPACT UPON EMPLOYEES IT REPRESENTS.
 
    (C) CHANGING THE PROCEDURES FOR EMPLOYEES TO GAIN ACCESS TO WORK
 FILES USED FOR DUTY PURPOSES WITHOUT FIRST AFFORDING LOCAL ONE,
 INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, THE
 EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES, OR ANY OTHER EXCLUSIVE
 REPRESENTATIVE OF EMPLOYEES, NOTICE OF ANY INTENDED CHANGE, AND AN
 OPPORTUNITY TO BARGAIN CONCERNING THE CHANGE'S IMPLEMENTATION AND IMPACT
 UPON EMPLOYEES IT REPRESENTS.
 
    (D) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE EXECUTIVE ORDER:
 
    (A) REPEAL THE PROCEDURE WHICH REQUIRES EMPLOYEES IN CODE 134.1 TO
 SEEK PERMISSION FROM THEIR SUPERVISOR PRIOR TO GAINING ACCESS TO,
 EXAMINING AND USING WORK FILES FOR THE PURPOSE OF RESPONDING TO
 EVALUATIONS BY MANAGEMENT CONCERNING THEIR WORK PERFORMANCE.
 
    (B) NOTIFY LOCAL ONE, INTERNATIONAL FEDERATION OF PROFESSIONAL AND
 TECHNICAL ENGINEERS, OF ANY INTENDED CHANGES IN THE PROCEDURES FOR
 GAINING ACCESS TO, EXAMINING AND USING WORK FILES FOR NON-DUTY PURPOSES,
 AND AFFORD LOCAL ONE, INTERNATIONAL FEDERATION OF PROFESSIONAL AND
 TECHNICAL ENGINEERS, AN OPPORTUNITY TO BARGAIN CONCERNING ANY SUCH
 PROPOSED CHANGES, THEIR IMPLEMENTATION, OR IMPACT UPON EMPLOYEES IT
 REPRESENTS.
 
    (C) NOTIFY LOCAL ONE, INTERNATIONAL FEDERATION OF PROFESSIONAL AND
 TECHNICAL ENGINEERS, OF ANY INTENDED CHANGES IN THE PROCEDURES FOR
 GAINING ACCESS TO, EXAMINING AND USING WORK FILES FOR DUTY PURPOSES OR
 OF ANY OTHER CHANGES IN PERSONNEL POLICIES, PRACTICES OR OTHER MATTERS
 AFFECTING WORKING CONDITIONS OF EMPLOYEES IN THE UNIT, AND AFFORD LOCAL
 ONE, INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS,
 AN OPPORTUNITY TO BARGAIN CONCERNING THE IMPLEMENTATION AND IMPACT OF
 SUCH CHANGES ON EMPLOYEES IT REPRESENTS.
 
    (D) POST AT ITS FACILITIES IN NORFOLK, VIRGINIA, 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 NORFOLK NAVAL SHIPYARD AND SHALL
 BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN
 CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE
 CUSTOMARILY POSTED.  THE NORFOLK NAVAL SHIPYARD SHALL TAKE REASONABLE
 STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
 BY ANY OTHER MATERIAL.
 
    (F) 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.
 
    ISSUED, WASHINGTON, D.C., APRIL 28, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
           PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 
            RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
 
          POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
 
              CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT ENFORCE THE POLICY OF REQUIRING EMPLOYEES IN CODE 134.1
 TO SEEK PERMISSION FROM THEIR SUPERVISOR PRIOR TO GAINING ACCESS TO,
 EXAMINING AND USING WORK FILES FOR THE PURPOSE OF RESPONDING TO
 EVALUATIONS BY MANAGEMENT CONCERNING THEIR WORK PERFORMANCE.
 
    WE WILL NOT CHANGE THE PROCEDURES FOR EMPLOYEES TO GAIN ACCESS TO
 WORK FILES USED FOR NON-DUTY PURPOSES WITHOUT FIRST AFFORDING LOCAL ONE,
 INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, THE
 EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES, OR ANY OTHER EXCLUSIVE
 REPRESENTATIVE OF EMPLOYEES, NOTICE OF ANY INTENDED CHANGE, AND AN
 OPPORTUNITY TO BARGAIN CONCERNING THE INTENDED CHANGE, ITS
 IMPLEMENTATION, OR ITS IMPACT UPON EMPLOYEES IT REPRESENTS.
 
    WE WILL NOT CHANGE THE PROCEDURES FOR EMPLOYEES TO GAIN ACCESS TO
 WORK FILES USED FOR DUTY PURPOSES WITHOUT FIRST AFFORDING LOCAL ONE,
 INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, THE
 EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES, OR ANY OTHER EXCLUSIVE
 REPRESENTATIVE OF EMPLOYEES, NOTICE OF ANY INTENDED CHANGE, AND AN
 OPPORTUNITY TO BARGAIN CONCERNING THE CHANGE'S IMPLEMENTATION AND IMPACT
 UPON EMPLOYEES IT REPRESENTS.
 
    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 REPEAL THE PROCEDURE WHICH REQUIRES EMPLOYEES IN CODE 134.1
 TO SEEK PERMISSION FROM THEIR SUPERVISOR PRIOR TO GAINING ACCESS TO,
 EXAMINING AND USING WORK FILES FOR THE PURPOSE OF RESPONDING TO
 EVALUATIONS BY MANAGEMENT CONCERNING THEIR WORK PERFORMANCE.
 
    WE WILL NOTIFY LOCAL ONE, INTERNATIONAL FEDERATION OF PROFESSIONAL
 AND TECHNICAL ENGINEERS, OF ANY INTENDED CHANGES IN THE PROCEDURES FOR
 GAINING ACCESS TO, EXAMINING AND USING WORK FILES USED FOR NON-DUTY
 PURPOSES, AND AFFORD LOCAL ONE, INTERNATIONAL FEDERATION OF PROFESSIONAL
 AND TECHNICAL ENGINEERS, AN OPPORTUNITY TO BARGAIN CONCERNING ANY SUCH
 PROPOSED CHANGES, THEIR IMPLEMENTATION, OR IMPACT UPON EMPLOYEES IT
 REPRESENTS.
 
    WE WILL NOTIFY LOCAL ONE, INTERNATIONAL FEDERATION OF PROFESSIONAL
 AND TECHNICAL ENGINEERS, OF ANY INTENDED CHANGES IN THE PROCEDURES FOR
 GAINING ACCESS TO, EXAMINING AND USING WORK FILES FOR DUTY PURPOSES OR
 OF ANY OTHER CHANGES IN PERSONNEL POLICIES, PRACTICES OR OTHER MATTERS
 AFFECTING WORKING CONDITIONS OF EMPLOYEES IN THE UNIT, AND AFFORD LOCAL
 ONE, INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS,
 AN OPPORTUNITY TO BARGAIN CONCERNING THE IMPLEMENTATION AND IMPACT OF
 SUCH CHANGES ON EMPLOYEES IT REPRESENTS.
 
   .          .          .          .
 
 
                           (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, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:  1730 K
 STREET, NW, ROOM 401, WASHINGTON, D.C. 20006, AND WHOSE TELEPHONE NUMBER
 IS (202) 653-7213.
 
    WALTER B. BAGBY, JR.
 
    LABOR RELATIONS ADVISOR
 
    DEPARTMENT OF THE NAVY
 
    OFFICE OF CIVILIAN PERSONNEL
 
    SOUTHERN FIELD DIVISION
 
    NORFOLK, VIRGINIA 23511
 
                            FOR THE RESPONDENT
 
    JAMES E. LYONS
 
    DIRECTOR OF PUBLIC EMPLOYEE AFFAIRS
 
    1126-- 16TH STREET, N.W., SUITE 111
 
    WASHINGTON, D.C.  20036
 
                            FOR THE COMPLAINANT
 
    BEFORE:  SAMUEL A. CHAITOVITZ
 
                         ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON DECEMBER 28,
 1978 BY THE REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES, U.S.
 DEPARTMENT OF LABOR, PHILADELPHIA REGION, A HEARING WAS HELD BEFORE THE
 UNDERSIGNED IN NORFOLK, VIRGINIA.
 
    THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS AMENDED
 (HEREIN CALLED THE ORDER).  IT WAS BASED ON A COMPLAINT FILED BY
 INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, LOCAL
 ONE (HEREIN CALLED COMPLAINANT AND LOCAL ONE IFPTE) AGAINST THE NORFOLK
 NAVAL SHIPYARD (HEREIN CALLED RESPONDENT).  SAID COMPLAINT ALLEGED THAT
 RESPONDENT VIOLATED SECTIONS 19(A)(1) AND (6) OF THE ORDER BY
 UNILATERALLY CHANGING A WORKING CONDITION BY DENYING ACCESS TO
 LABORATORY REPORTS AND SPECIFICATIONS WITHOUT FIRST OBTAINING
 SUPERVISORY PERMISSION.
 
    BOTH PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE AND TO EXAMINE AND
 CROSS-EXAMINE WITNESSES.  THEREAFTER BOTH PARTIES FILED BRIEFS WITH THE
 UNDERSIGNED WHICH HAVE BEEN DULY CONSIDERED.
 
    UPON THE ENTIRE RECORD HEREIN, 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 AND COMPLAINANT HAVE
 BEEN PARTIES TO A COLLECTIVE BARGAINING AGREEMENT COVERING A UNIT OF
 EMPLOYEES INCLUDING CHEMISTS AND PHYSICAL SCIENCE TECHNICIANS.  THIS
 UNIT INCLUDES CHEMISTS EMPLOYED WITHIN CODE 134.1.  CODE 134.1 IS A
 QUALITY CONTROL LABORATORY WITHIN WHICH THE CHEMICAL QUALITY OF
 MATERIALS IN THE SHIPYARD IS EXAMINED AND IN WHICH VARIOUS MATERIALS,
 FROM OILS TO METALS, ARE ANALYZED.
 
    2.  THERE WERE PRESENT IN THE CODE 134 WORK AREA CERTAIN FILES
 CONTAINED IN FILE CABINETS.  THESE FILES CONTAINED THE ANALYTICAL TESTS
 RUN BY EMPLOYEES AND THE WORK SHEETS USED BY EMPLOYEES IN RUNNING SUCH
 TESTS.  ADDITIONALLY CERTAIN SPECIFICATIONS AND SHIPYARD DIRECTIVES ON
 MATERIAL ANALYSIS WERE CONTAINED IN THE FILES.
 
    3.  THESE FILES WERE USED BY EMPLOYEES IN CODE 134.1 FOR A NUMBER OF
 PURPOSES IN PERFORMING THEIR DUTIES, INCLUDING TO DETERMINE IF A SAMPLE
 COULD BE TESTED IN THE SAME MANNER AS IN THE PAST, TO ACHIEVE
 CONSISTENCY IN RESULTS IN RUNNING SAMPLES AND TESTS, TO DETERMINE IF A
 SPECIFICATION CAN BE INTERPRETED IN THE SAME MANNER AS IN THE PAST AND
 TO EXPEDITE THE PERFORMANCE OF THE WORK.
 
    4.  THESE FILES COULD BE AND WERE ALSO USED BY EMPLOYEES IN CODE
 134.1 TO ANSWER ALLEGATIONS AND CHARGES OF POOR AND INSUFFICIENT WORK
 PERFORMANCE.
 
    5.  PRIOR TO MARCH 31, 1978 EMPLOYEES IN CODE 134.1 HAD FREE AND
 UNLIMITED ACCESS TO THE FILES AND THE EMPLOYEES USED THE FILES
 REGULARLY.  THERE WAS NO NEED TO ASK FOR PERMISSION OR TO ESTABLISH A
 JUSTIFICATION FOR USING THE FILES AND THEY COULD BE USED AT ANY TIME
 BOTH AT THE FILE CABINETS AND AT THE EMPLOYEES' DESKS.
 
    6.  ON OR ABOUT MARCH 21, 1978 CODE 134.1 SUPERVISOR PAUL WILSON
 OBSERVED A CODE 134.1 EMPLOYEE, MS. TERRY EMORY, EXAMINING THE FILES IN
 ORDER TO PREPARE A RESPONSE TO A LETTER OF CAUTION SHE HAD RECEIVED
 WHICH ALLEGED POOR WORK PERFORMANCE.  ALTHOUGH SUPERVISOR WILSON
 CONTENDS THAT HE DID NOT KNOW WHY MS. EMORY WAS USING THE FILES HE
 ORDERED HER OUT OF THE FILES.  THIS WAS APPARENTLY THE FIRST INSTANCE OF
 SUPERVISOR WILSON REFUSING ACCESS TO THE FILES TO ANYONE IN CODE 134.1.
 
    7.  ON MARCH 31, 1978 A MEETING OF ALL CODE 134.1 EMPLOYEES WAS
 CALLED BY SUPERVISOR WILSON.  ALSO PRESENT AT THE MEETING WAS UNION
 STEWARD JIM RIEVES, A CODE 134.2 EMPLOYEE.  SUPERVISOR WILSON STATED
 THAT FROM THAT POINT ON IF THE CODE 134.1 EMPLOYEES WANTED TO USE THE
 FILES THEY WOULD BE ABLE TO USE THE FILES ON A NEED TO KNOW BASIS AND
 ONLY AFTER THEY RECEIVED SUPERVISOR WILSON'S PERMISSION.  SUPERVISOR
 WILSON MADE IT CLEAR THAT THIS POLICY OF ASKING PERMISSION WENT INTO
 EFFECT IMMEDIATELY AND APPLIED EVEN IN HIS ABSENCE AND EVEN IN THE CASE
 OF EMERGENCY.
 
    8.  UNION STEWARD RIEVES OBJECTED BECAUSE HE CONTENDED THE STATEMENTS
 OF SUPERVISOR WILSON CONSTITUTED A CHANGE IN POLICY.  MR. SAUL LOWE,
 SUPERVISOR WILSON'S IMMEDIATE SUPERIOR, THEN ANNOUNCED THAT THERE WOULD
 BE A SEPARATE MEETING WITH THE COMPLAINANT TO CLARIFY THE NEW POLICY.
 
    9.  ON APRIL 4, 1978 ANOTHER MEETING WAS HELD.  PRESENT AT THE
 MEETING WERE SUPERVISOR WILSON, MR. LOWE, AND LOCAL ONE IFPTE TREASURER
 WILSON, AND MR. COLGIN, A UNION MEMBER.  AMONG OTHER ITEMS, THE
 LIMITATION ON THE USE OF THE FILES WAS DISCUSSED, BUT THE UNION DID NOT
 REQUEST TO BARGAIN ABOUT THE POLICY.
 
    10.  ON APRIL 10, 1978 SUPERVISOR WILSON CALLED ANOTHER MEETING OF
 THE CODE 134.1 EMPLOYEES AND, ALTHOUGH THERE WAS SOME CONFUSION,
 REITERATED THE POLICY STATED AT THE MARCH 31, 1978 MEETING.
 
    11.  SUBSEQUENT TO THE MARCH 31 MEETING SUPERVISOR WILSON DENIED NO
 ONE PERMISSION TO USE THE FILES.  SOME CODE 134.1 EMPLOYEES DID NOT USE
 THE FILES ANY LONGER AND OTHERS IGNORED THE NEW POLICY AND USED THE
 FILES WITHOUT SEEKING PERMISSION.
 
    12.  NORMALLY WHEN A POLICY WAS CHANGED BY RESPONDENT, IF IT WAS IN
 WRITING, A DRAFT OF THE PROPOSED CHANGE WAS FURNISHED TO THE COMPLAINANT
 WHICH WOULD MAKE COMMENTS AND HAVE AN OPPORTUNITY TO NEGOTIATE ABOUT
 THE
 POLICY.  IF THE PROPOSED POLICY WERE ORAL, THE COMPLAINANT WAS GIVEN
 ADVANCE NOTICE OF THE PROPOSED CHANGE AND AN OPPORTUNITY TO NEGOTIATE.
 
                                CONCLUSIONS
 
    THE DECISION TO CHANGE THE EXISTING PRACTICE OF FREE ACCESS TO FILES
 TO ONE REQUIRING EACH EMPLOYEE TO DEMONSTRATE A NEED TO USE THE FILES
 AND TO SECURE A SUPERVISOR'S PERMISSION BEFORE USING THE FILES WAS A
 SUBSTANTIAL ENOUGH CHANGE IN WORKING CONDITIONS TO ENTITLE THE
 COMPLAINANT TO ADVANCE NOTICE OF THE PROPOSED CHANGE AND TO AN
 OPPORTUNITY TO NEGOTIATE CONCERNING SUCH CHANGE.  THE FILES IN QUESTION
 WERE USED BY THE EMPLOYEES AND FACILITATED THE PERFORMANCE OF THEIR
 DUTIES.  THE CHANGE OF PROCEDURE WITH RESPECT TO ACCESS TO THE FILES
 COULD FORESEEABLY AFFECT THE EASE AND SPEED WITH WHICH THE EMPLOYEES
 PERFORMED THEIR DUTIES, MIGHT LEAD TO POOR PERFORMANCE RATINGS /3/ AND
 THUS WAS A MATTER ABOUT WHICH THE UNION HAD A RIGHT TO NEGOTIATE.  /4/
 
    RESPONDENT'S CONTENTIONS THAT IT WAS NOT OBLIGED TO BARGAIN ABOUT THE
 CHANGE IN PROCEDURE BECAUSE IT IS A MANAGEMENT RIGHT UNDER SECTION
 12(B)(5) OF THE ORDER, WHICH DEALS WITH THE METHODS BY WHICH OPERATIONS
 ARE TO BE CONDUCTED, AND IS A MANAGEMENT PREROGATIVE UNDER SECTION 11(B)
 OF THE ORDER, WHICH DEALS WITH THE TECHNOLOGY OF PERFORMING ITS WORK,
 ARE REJECTED.  THE EMPLOYEES WERE NOT TOLD THAT THEY WERE PROHIBITED
 FROM USING THE FILES AND SUPERVISOR WILSON TESTIFIED THAT HE WOULD
 ALWAYS GRANT PERMISSION TO USE THE FILES WHEN IT WAS RELATED TO
 PERFORMING AN EMPLOYEE'S WORK.  ACCORDINGLY THIS WAS NOT A CHANGE IN THE
 TECHNOLOGY OR THE METHODS FOR DOING THE WORK, RATHER IT WAS MERELY A
 CHANGE IN HOW EMPLOYEES SECURED ACCESS TO THE FILES AND WAS THUS
 NEGOTIABLE.  CF. NATIONAL LABOR RELATIONS BOARD, A/SLMR NO. 246.
 FURTHER THE FILES IN QUESTION COULD BE, AND WERE, USED BY EMPLOYEES IN
 PREPARING RESPONSES TO ADVERSE OR UNCOMPLIMENTARY RATINGS, APPRAISALS
 AND LETTERS OF CAUTION AND ANY CHANGE IN THE ACCESS TO THEM WOULD BE
 NEGOTIABLE BECAUSE, CLEARLY, SUCH USE OF THE FILES IS IN NO WAY
 ENCOMPASSED BY THE MANAGEMENT RIGHTS SET FORTH IN SECTIONS 12(B)(5) AND
 11(B) OF THE ORDER.
 
    IT IS CONCLUDED, THEREFORE THAT RESPONDENT VIOLATED SECTIONS 19(A)(1)
 AND (6) OF THE ORDER BECAUSE IT DID NOT GIVE THE COMPLAINANT SUFFICIENT
 NOTICE AND OPPORTUNITY, AS REQUIRED BY THE ORDER, TO NEGOTIATE
 CONCERNING THE CHANGE.  CF.  FEDERAL RAILROAD ADMINISTRATION, A/SLMR NO.
 418 AND NATIONAL LABOR RELATIONS BOARD, SUPRA.
 
    FINALLY COMPLAINANT WAS NOT GIVEN SUFFICIENT NOTICE AND AFFORDED AN
 OPPORTUNITY TO BARGAIN CONCERNING THE IMPACT AND IMPLEMENTATION OF THE
 CHANGE.  IN THIS REGARD COMPLAINANT WAS ENTITLED TO SUCH NOTICE AND
 OPPORTUNITY EVEN IF THE RESPONDENT WAS NOT OBLIGATED TO BARGAIN ABOUT
 THE CHANGE ITSELF.  AGAIN, THE COMPLAINANT WAS ENTITLED TO NOTICE OF THE
 CHANGE SUFFICIENTLY IN ADVANCE OF THE CHANGE TO ENABLE IT TO BARGAIN
 MEANINGFULLY AND EFFECTIVELY ABOUT THE CHANGE'S IMPACT AND
 IMPLEMENTATION OF THE CHANGE BEFORE IT BECAME EFFECTIVE.  BY NOT
 AFFORDING COMPLAINANT SUCH NOTICE AND OPPORTUNITY TO BARGAIN ABOUT THE
 IMPACT AND IMPLEMENTATION OF THE CHANGE, RESPONDENT VIOLATED SECTIONS
 19(A)(1) AND (6) OF THE ORDER.  DEPARTMENT OF TREASURY, IRS SOUTHWEST, 1
 FLRA 70 AND FEDERAL RAILROAD ADMINISTRATION, SUPRA.
 
    HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT WHICH IS
 VIOLATIVE ORDER, I RECOMMEND THAT THE FEDERAL LABOR RELATIONS AUTHORITY
 ISSUE THE FOLLOWING ORDER PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S
 TRANSITION RULES AND REGULATIONS (44 F.R. 7) AND SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR MANAGEMENT RELATIONS STATUTE (92 STAT. 1215):
 
                                   ORDER
 
    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 NORFOLK NAVAL SHIPYARD SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) ENFORCING THE POLICY OF REQUIRING EMPLOYEES IN CODE 134.1 TO SEEK
 PERMISSION FROM THEIR SUPERVISOR PRIOR TO GAINING ACCESS TO, EXAMINING
 AND USING WORK FILES.
 
    (B) CHANGING THE PROCEDURES FOR EMPLOYEES TO GAIN ACCESS TO WORK
 FILES OR MAKING ANY OTHER CHANGES IN WORKING CONDITIONS WITHOUT FIRST
 AFFORDING LOCAL ONE, INTERNATIONAL FEDERATION OF PROFESSIONAL AND
 TECHNICAL ENGINEERS, THE EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES, OR
 ANY OTHER EXCLUSIVE REPRESENTATIVE OF EMPLOYEES, NOTICE OF ANY INTENDED
 CHANGE AND, AN OPPORTUNITY TO BARGAIN CONCERNING THE INTENDED CHANGE AND
 ITS IMPLEMENTATION AND IMPACT UPON EMPLOYEES IT REPRESENTS.
 
    (C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE EXECUTIVE ORDER:
 
    (A) REPEAL THE PROCEDURE WHICH REQUIRES EMPLOYEES IN CODE 134.1 TO
 SEEK PERMISSION FROM THEIR SUPERVISOR PRIOR TO GAINING ACCESS TO,
 EXAMINING AND USING WORK FILES.
 
    (B) NOTIFY LOCAL ONE, INTERNATIONAL FEDERATION OF PROFESSIONAL AND
 TECHNICAL ENGINEERS, OF ANY INTENDED CHANGE IN THE PROCEDURES FOR
 GAINING ACCESS TO, EXAMINING AND USING WORK FILES OR ANY OTHER CHANGES
 IN PERSONNEL POLICIES PRACTICES OR OTHER MATTERS AFFECTING WORKING
 CONDITIONS OF EMPLOYEES IN THE UNIT AND AFFORD LOCAL ONE, INTERNATIONAL
 FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS AN OPPORTUNITY TO
 BARGAIN CONCERNING ANY SUCH PROPOSED CHANGES AND CONCERNING THE
 IMPLEMENTATION AND IMPACT OF SUCH CHANGES ON EMPLOYEES IT REPRESENTS.
 
    (C) POST AT ITS FACILITIES IN NORFOLK, VIRGINIA 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 NORFOLK NAVAL SHIPYARD AND SHALL
 BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN
 CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE
 CUSTOMARILY POSTED.  THE NORFOLK NAVAL SHIPYARD 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.
 
                           SAMUEL A. CHAITOVITZ
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  AUGUST 16, 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 CHAPTER 71 OF TITLE 6 OF THE UNITED STATES
 
              CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT ENFORCE THE POLICY OF REQUIRING EMPLOYEES IN CODE 134.1
 TO SEEK PERMISSION FROM THEIR SUPERVISOR PRIOR TO GAINING ACCESS TO,
 EXAMINING AND USING WORK FILES.
 
    WE WILL NOT CHANGE THE PROCEDURES FOR EMPLOYEES TO GAIN ACCESS TO
 WORK FILES OR MAKE ANY OTHER CHANGES IN WORKING CONDITIONS WITHOUT FIRST
 AFFORDING LOCAL ONE, INTERNATIONAL FEDERATION OF PROFESSIONAL AND
 TECHNICAL ENGINEERS THE EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES, OR
 ANY OTHER EXCLUSIVE REPRESENTATIVE OF EMPLOYEES, NOTICE OF ANY INTENDED
 CHANGE AND ITS IMPLEMENTATION AND IMPACT UPON EMPLOYEES IT REPRESENTS.
 
    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 REPEAL THE PROCEDURE WHICH REQUIRES EMPLOYEES IN CODE 134.1
 TO SEEK PERMISSION FROM THEIR SUPERVISOR PRIOR TO GAINING ACCESS TO,
 EXAMINING AND USING WORK FILES.
 
    WE WILL NOTIFY LOCAL ONE, INTERNATIONAL FEDERATION OF PROFESSIONAL
 AND TECHNICAL ENGINEERS OF ANY INTENDED CHANGE IN THE PROCEDURES FOR
 GAINING ACCESS TO, EXAMINING AND USING WORK FILES OR ANY OTHER CHANGES
 IN PERSONNEL POLICIES PRACTICES OR OTHER MATTERS AFFECTING WORKING
 CONDITIONS OF EMPLOYEES IN THE UNIT AND AFFORD LOCAL ONE, INTERNATIONAL
 FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS AN OPPORTUNITY TO
 BARGAIN CONCERNING ANY SUCH PROPOSED CHANGES AND CONCERNING THE
 IMPLEMENTATION AND IMPACT OF SUCH CHANGES ON EMPLOYEES IT REPRESENTS.
 
   .          .          .          .
 
 
                           (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 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 ROOM 418, 1111-- 20TH STREET, N.W., WASHINGTON, D.C.
 20036, WHOSE TELEPHONE NUMBER IS:  (202) 254-6581.
 
    /1/ SECTION 12(B)(5) OF THE ORDER PROVIDES:
 
    SEC. 12.  BASIC PROVISIONS OF AGREEMENTS.  EACH AGREEMENT BETWEEN AN
 AGENCY AND A LABOR
 
    ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
 
   .          .          .          .
 
 
    (B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
 ACCORDANCE WITH APPLICABLE LAWS
 
    AND REGULATIONS--
 
   .          .          .          .
 
 
    (5) TO DETERMINE THE METHODS, MEANS AND PERSONNEL BY WHICH SUCH
 OPERATIONS ARE TO BE
 
    CONDUCTED;  . . .
 
    THE TERM "METHODS" AS IT APPEARS IN SECTION 12(B)(5) OF THE ORDER HAS
 BEEN DEFINED BY THE FEDERAL LABOR RELATIONS COUNCIL TO MEAN "THE
 PROCEDURES, PROCESSES, WAYS, TECHNIQUES, MODES, MANNERS AND SYSTEMS BY
 WHICH OPERATIONS ARE TO BE CONDUCTED-- IN SHORT, HOW OPERATIONS ARE TO
 BE CONDUCTED." TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL
 AND NAVAL PUBLIC WORKS CENTER, NORFOLK, VIRGINIA, 1 FLRC 431 AT PAGE
 436, FLRC NO. 71A-56 (JUNE 29, 1973).  SEE ALSO 78TH DIVISION
 (TRAINING), KILMER USAR CENTER, EDISON, NEW JERSEY, 1 FLRA NO. 97(1979).
 
    /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/ THE FACT IT HAD NOT ACTUALLY LED TO SUCH ADVERSE APPRAISALS IS
 IRRELEVANT.  THE FACT THAT SUFFICIENT EFFECT AND IMPACT UPON EMPLOYEES
 WAS REASONABLY FORESEEABLE OR POSSIBLE WAS SUFFICIENT TO ENTITLE
 COMPLAINANT TO NEGOTIATE ABOUT THE CHANGE.
 
    /4/ BECAUSE SOME EMPLOYEES IGNORED THE NEW PROCEDURE AND CONTINUED TO
 USE THE FILES FREELY DOES NOT MEAN THAT RESPONDENT HAD NOT CHANGED THE
 PROCEDURE FOR USING THE FILES.