Department of the Air Force, Headquarters, San Antonio Air Logistics Center, Kelly Air Force Base, Texas (Respondent) and American Federation of Government Employees, Local 1617, AFL-CIO (Complainant) 



[ v03 p209 ]
03:0209(30)CA
The decision of the Authority follows:


 3 FLRA No. 30
 
 DEPARTMENT OF THE AIR FORCE,
 HEADQUARTERS, SAN ANTONIO AIR
 LOGISTICS CENTER, KELLY AIR FORCE BASE, TEXAS
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1617, AFL-CIO
 Complainant
 
                                            Assistant Secretary
                                            Case No. 63-8791(CA)
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
 ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD
 NOT ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT AND
 RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
 THEREAFTER, THE COMPLAINANT FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER, AND THE RESPONDENT FILED AN
 OPPOSITION TO THE COMPLAINANT'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. 44741, JULY 30, 1979).  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 THIS CASE,
 INCLUDING THE COMPLAINANT'S EXCEPTIONS AND THE RESPONDENT'S OPPOSITION
 THERETO, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
 FINDINGS, CONCLUSIONS /1/ AND RECOMMENDATION.  /2/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 63-8791(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., MAY 21, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER, III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    CHARLES L. WIEST, JR., MAJOR, USAF
 
    LEWIS G. BREWER, MAJOR, USAF
 
    LABOR COUNSEL
 
    OFFICE OF THE STAFF JUDGE ADVOCATE
 
    SAN ANTONIO AIR LOGISTICS CENTER
 
    KELLY AIR FORCE BASE, TEXAS 78241
 
                            FOR THE RESPONDENT
 
    ALFONSO GARCIA
 
    NATIONAL REPRESENTATIVE
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES
 
    6061 NORTHWEST EXPRESSWAY
 
    SAN ANTONIO, TEXAS 78201
 
                            FOR THE COMPLAINANT
 
    BEFORE:  GARVIN LEE OLIVER
 
                         ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
    THIS CASE AROSE PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED, AS A
 RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1617, AFL-CIO (HEREINAFTER
 CALLED THE COMPLAINANT OR UNION), AGAINST THE DEPARTMENT OF THE AIR
 FORCE, HEADQUARTERS, SAN ANTONIO AIR LOGISTICS CENTER, KELLY AIR FORCE
 BASE, TEXAS (HEREINAFTER CALLED THE RESPONDENT).
 
    THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT THE RESPONDENT VIOLATED
 SECTIONS 19(A)(1) AND (6) OF THE EXECUTIVE ORDER BY ISSUING SAN ANTONIO
 AIR LOGISTICS CENTER (SA-ALC) REGULATIONS 500-4 ON JANUARY 4, 1978,
 PROVIDING THAT THE CHIEF EQUAL EMPLOYMENT OPPORTUNITY (EEO) COUNSELOR
 AND ALL EEO COUNSELORS SHALL BE ROTATED OUT OF THE EEO PROGRAM ON A
 PERIODIC BASIS, WITHOUT BARGAINING WITH THE UNION AND WITHOUT NOTIFYING
 THE UNION AND GIVING IT AN OPPORTUNITY TO BARGAIN CONCERNING THE IMPACT
 ON UNIT EMPLOYEES.
 
    A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED IN SAN
 ANTONIO, TEXAS.  BOTH PARTIES WERE REPRESENTED AND AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO ADDUCE RELEVANT EVIDENCE, AND TO EXAMINE AND
 CROSS-EXAMINE WITNESSES.  POSTHEARING BRIEFS HAVE BEEN RECEIVED FROM
 BOTH PARTIES AND DULY CONSIDERED.
 
    BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
 ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
 FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    THE UNION IS THE EXCLUSIVE REPRESENTATIVE FOR ALL EMPLOYEES OF THE
 RESPONDENT IN CERTAIN WAGE GRADE AND GENERAL SCHEDULE (GS) UNITS WHICH
 COMPRISE APPROXIMATELY 14,500 EMPLOYEES.  AS PERTINENT HERE, THE GS UNIT
 INCLUDES ALL CLASSIFICATION ACT EMPLOYEES EXCEPT SUPERVISORS, MANAGEMENT
 OFFICIALS, PROFESSIONAL EMPLOYEES, AND EMPLOYEES ENGAGED IN CIVILIAN
 PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY.
 
    THE RESPONDENT AND THE COMPLAINANT WERE PARTIES TO TWO NEGOTIATED
 AGREEMENTS WHICH WERE IN EFFECT AT TIMES MATERIAL HEREIN.  NEITHER
 AGREEMENT CONTAINS SPECIFIC REFERENCE TO THE SELECTION, APPOINTMENT, OR
 ROTATION OF FULL-TIME EEO COUNSELORS.  /3/ THE USE OF PART-TIME EEO
 COUNSELORS WERE DISCONTINUED IN 1971 OR 1972.
 
    FROM APPROXIMATELY 1967 RESPONDENT HAD A GENERAL POLICY OF
 PERIODICALLY ROTATING EEO PERSONNEL OUT OF THE EEO PROGRAM AFTER A THREE
 YEAR ASSIGNMENT.  HOWEVER, THIS WAS MORE OF A GOAL THAN A FIRM
 REQUIREMENT OR PRACTICE.  IF PERSONNEL WERE PROMOTED IN THE EEO OFFICE,
 THEY WERE NOT ROTATED.  ROTATION ALSO DEPENDED UPON THE AVAILABILITY OF
 OTHER COMPARABLE POSITIONS TO WHICH THEY COULD BE ASSIGNED.  THE
 EVIDENCE ESTABLISHED THAT SEVERAL CHIEF EEO COUNSELORS, OTHER
 SUPERVISORY COUNSELORS, AND A KEY EEO MANAGEMENT ADVISOR (SPECIAL
 ASSISTANT) WERE ROTATED OUT OF THE EEO PROGRAM.
 
    THE EVIDENCE AS TO THE ROTATION OF NON-SUPERVISORY COUNSELORS UNDER
 ANY SUCH POLICY WAS VAGUE AND INCONCLUSIVE.  IT WAS NOT ESTABLISHED
 WHETHER ANY TRANSFER OUT OF THE EEO OFFICE BY NONSUPERVISORY COUNSELORS
 WAS PURSUANT TO A POLICY OR AT THEIR INSTIGATION AND REQUEST.  MANY
 COUNSELORS HAVE REMAINED IN THE EEO PROGRAM BEYOND A THREE YEAR PERIOD.
 THERE WAS NO EVIDENCE THAT DURING THE PERIOD 1967 TO 1978 INDIVIDUALS
 ENTERING THE POSITIONS OF EEO COUNSELOR DID SO UNDER AN AGREEMENT
 PROVIDING FOR PERIODIC ROTATION OR REQUIRED MOBILITY, OR THAT THE
 DIRECTOR OF PERSONNEL MONITORED THESE POSITIONS TO INSURE THAT PERIODIC
 ROTATION WOULD BE CARRIED OUT.
 
    AT A STAFF PARTY IN DECEMBER 1977 MAJOR GENERAL LYNWOOD E. CLARK,
 COMMANDER, SAN ANTONIO AIR LOGISTICS CENTER, ADVISED AT LEAST TWO EEO
 COUNSELORS THAT IT WAS NECESSARY TO BRING "NEW BLOOD" INTO THE EEO
 PROGRAM, AND EEO COUNSELORS WOULD BE ROTATED BACK INTO THEIR PREVIOUS
 FIELD AFTER A PERIOD OF SERVICE.
 
    ON JANUARY 4, 1978 MAJOR GENERAL CLARK ISSUED SAN ANTONIO ALC
 REGULATION 500-4 WHICH PROVIDED AS FOLLOWS:
 
                       COMMANDER'S SPECIAL INTEREST
 
             ROTATION OF EQUAL EMPLOYMENT OPPORTUNITY OFFICERS
 
    1.  INDIVIDUALS WHO ARE CONTINUOUSLY RESPONSIBLE FOR THE RESOLUTION
 AND PROCESSING OF
 
    COMPLAINTS WORK UNDER A TYPE OF STRESS THAT CAN, AFTER A PROLONGED
 PERIOD, LEAD TO "BURN
 
    OUT." TO PRECLUDE THIS PHENOMENA AND TO ASSURE A CREATIVE AND
 AGGRESSIVE EQUAL EMPLOYMENT
 
    OPPORTUNITY (EEO) PROGRAM, IT IS MY POLICY THAT THE CHIEF EQUAL
 EMPLOYMENT OPPORTUNITY
 
    COUNSELOR AND HIS EEO COUNSELORS ROTATE OUT OF EEO ON A PERIODIC
 BASIS.
 
    2.  INDIVIDUALS ENTERING THE POSITIONS WILL DO SO UNDER AN AGREEMENT
 PROVIDING FOR REQUIRED
 
    MOBILITY WITHIN THE SAN ANTONIO ALC WORK FORCE.  THE TENURE FOR THE
 POSITIONS WILL ORDINARILY
 
    BE THREE YEARS.  HOWEVER, AS MEMBERS OF THE COMMANDER'S STAFF, THE
 INCUMBENTS MAY BE ROTATED
 
    EARLIER IF IT IS DEEMED IN THE BEST INTEREST OF THE KELLY AFB WORK
 FORCE AND/OR THE U.S. AIR
 
    FORCE.  REASSIGNMENT OUT OF ONE OF THESE POSITIONS WILL NOT NORMALLY
 BE CONSIDERED AN ADVERSE
 
    ACTION.  REASSIGNMENTS WHICH ARE ADVERSE IN NATURE WILL NOT BE TAKEN
 UNDER THE PROVISIONS OF
 
    THIS POLICY, BUT WILL BE ACCOMPLISHED UNDER APPLICABLE REGULATIONS ON
 AN INDIVIDUAL BASIS AS
 
    CIRCUMSTANCES WARRANT.  THE DIRECTOR OF PERSONNEL WILL MONITOR THESE
 POSITIONS TO INSURE THIS
 
    POLICY IS BEING FOLLOWED.
 
    LYNWOOD E. CLARK, MAJOR GENERAL, USAF COMMANDER
 
    THE REGULATION WAS ISSUED WITHOUT PRIOR NOTICE TO, OR NEGOTIATION
 WITH, THE UNION EITHER AS TO THE POLICY STATED IN THE REGULATION OR AS
 TO MATTERS RELATING TO THE IMPACT AND IMPLEMENTATION OF THE POLICY.
 
    COMMANDER'S SPECIAL INTEREST REGULATIONS ARE A SMALL GROUP OF
 REGULATIONS DISTRIBUTED ONLY TO SENIOR MANAGEMENT OFFICIALS.  THEY ARE
 NOT DISTRIBUTED GENERALLY TO EMPLOYEES.  THE UNION OBTAINED A COPY OF
 ALC REGULATION 500-4 BY MAKING A REQUEST UNDER THE FREEDOM OF
 INFORMATION ACT.
 
    MAJOR GENERAL CLARK TOOK OVER COMMAND OF THE SA-ALC ON JULY 1, 1977.
 HE TESTIFIED THAT THE REGULATION WAS A CONFIRMATION OF THE UNWRITTEN
 POLICY HE PERCEIVED AT THE TIME.  HE ISSUED THE REGULATION TO INSURE
 STRICT ENFORCEMENT OF THE TENURE OF COUNSELORS AS HE FELT UNWRITTEN
 POLICIES WERE LIKELY TO BE FORGOTTEN, WAIVED, OR OVERLOOKED.
 
    I FIND THAT THE REGULATION DID CHANGE EXISTING POLICY.  A
 PREPONDERANCE OF THE EVIDENCE SHOWS THAT IF THERE WAS ANY POLICY PRIOR
 TO THE MEMORANDUM REQUIRING THE ROTATION OF NON-SUPERVISORY EEO
 COUNSELORS, THE RESPONDENT'S ATTEMPTS TO ENFORCE SUCH "POLICY" WERE
 IRREGULAR AND AMBIGUOUS.  A REASONABLE READING OF THE JANUARY 4, 1978
 REGULATION SHOWS THAT IT WAS INTENDED TO ESTABLISH, AND RESULT IN THE
 STRICT ENFORCEMENT OF, A PERIODIC ROTATION POLICY.  THE REGULATION
 CLEARLY ESTABLISHES THE POLICY AND STATES THAT INDIVIDUALS ENTERING THE
 POSITIONS WILL DO SO UNDER AN AGREEMENT PROVIDING FOR MOBILITY.  THE
 REGULATION ALSO CALLS FOR THE DIRECTOR OF PERSONNEL TO MONITOR POSITIONS
 TO INSURE THAT THE POLICY IS BEING FOLLOWED.  THIS STRICT ENFORCEMENT OF
 THE ROTATION OF COUNSELORS OUT OF THE EEO PROGRAM REPRESENTED A
 SIGNIFICANT SHIFT FROM PAST PRACTICES.
 
    THE ROTATION POLICY STATED IN THE REGULATION WILL APPLY TO ALL EEO
 COUNSELORS IN THE GS-160 CLASSIFICATION SERIES WHO PRESENTLY, OR WILL IN
 THE FUTURE, OCCUPY SUCH POSITIONS.  ONLY ONE INDIVIDUAL, THE CHIEF EEO
 COUNSELOR, WHO OCCUPIED A SUPERVISORY POSITION OVER ALL OTHER COUNSELORS
 FROM 1972 TO 1978, HAS BEEN ROTATED OUT OF THE EEO OFFICE AND
 TRANSFERRED TO ANOTHER POSITION PURSUANT TO ALC REGULATION 500-4.
 RESPONDENT ACKNOWLEDGES, HOWEVER, THAT "FULLER IMPLEMENTATION WITHOUT
 NEGOTIATION WITH THE UNION WILL OCCUR WHEN CIRCUMSTANCES WARRANT." (R.A.
 EXH. 2, P. 5).  ADDITIONAL IMPLEMENTATION HAS BEEN DEFERRED PENDING
 RESOLUTION OF THIS COMPLAINT.
 
    IN EARLY 1978 THE RESPONDENT'S CHIEF OF LABOR RELATIONS ADVISED THE
 CHIEF EEO COUNSELOR THAT EEO COUNSELORS WERE NOT PART OF THE BARGAINING
 UNIT.
 
    THERE CURRENTLY ARE NINE EEO COUNSELORS ASSIGNED TO THE OFFICE OF THE
 CHIEF EEO COUNSELOR.  THIS OFFICE REPORTS DIRECTLY TO THE COMMANDER, SAN
 ANTONIO AIR LOGISTICS CENTER.  THE CHIEF EEO COUNSELOR IS A SUPERVISORY
 EQUAL OPPORTUNITY SPECIALIST, GS-160-13.  AMONG OTHER THINGS, HE IS
 RESPONSIBLE FOR THE OVERALL PROGRAM PLANNING, DIRECTING, AND SUPERVISION
 OF EIGHT OR MORE FULL TIME EEO COUNSELORS.
 
    THERE ARE TWO EQUAL OPPORTUNITY SPECIALISTS, GS-160-12.  AMONG OTHER
 THINGS, THEY ASSIST THE CHIEF EEO COUNSELORS IN THE OVERALL PROGRAM
 PLANNING, DIRECTING, AND COORDINATING OF SUBORDINATE COUNSELORS.  THEY
 RECEIVE FORMAL COMPLAINTS AND MAKE RECOMMENDATIONS REGARDING
 ACCEPTANCE
 OR REJECTION OF THE COMPLAINT TO THE CHIEF EEO COUNSELOR, COMMANDER, AND
 THE AIR FORCE LOGISTICS COMMAND.  THEY COORDINATE WITH THE AFFIRMATIVE
 ACTION EMPLOYEES IN THE CIVILIAN PERSONNEL DIVISION TO IDENTIFY PROBLEM
 AREAS AND SECURE FULL INVOLVEMENT IN THE EEO PROGRAM FROM ALL SEGMENTS
 OF THE MANAGEMENT STRUCTURE.
 
    THERE ARE FOUR GS-160-11 AND TWO GS-160-9 EQUAL OPPORTUNITY
 SPECIALISTS.  THE PRIMARY FUNCTION OF THESE COUNSELORS IS TO COUNSEL
 EMPLOYEES IN THE PRECOMPLAINT STAGE;  DEVELOP FACTUAL INFORMATION
 CONCERNING THE CASE THROUGH DISCUSSIONS WITH THE COMPLAINANT'S
 SUPERVISORS, MANAGEMENT OFFICIALS, AND OTHER EMPLOYEES;  CONDUCT
 RESEARCH INTO CONFIDENTIAL PERSONNEL RECORDS, INCLUDING EMPLOYMENT
 HISTORY, PROMOTION REGISTERS, ADVERSE ACTIONS, AND MEDICAL RECORDS;
 ATTEMPT INFORMAL RESOLUTIONS OF COMPLAINTS BY PROVIDING ADVICE AND
 COUNSEL TO COMPLAINANTS AND MANAGEMENT OFFICIALS;  PROVIDE FINAL
 NARRATIVE REPORTS OF COUNSELING TO THE CHIEF EEO COUNSELOR;  AND ASSIST
 THE COMPLAINANT IN PREPARING AND FILING FORMAL COMPLAINTS AS REQUIRED.
 THE GS-11 COUNSELOR HANDLES MORE COMPLEX CASES, INCLUDING CLASS ACTIONS,
 HAD ACCESS TO BROADER RECORDS, INCLUDING DISCIPLINARY ACTIONS, AND HAS
 CONTACT AND OFFERS ADVICE TO ALL LEVELS OF MANAGEMENT UP TO THE
 DIRECTORATE LEVEL IN THE ATTEMPTED INFORMAL RESOLUTION OF COMPLAINTS.
 
    THERE IS ONE GS-160-07 EQUAL OPPORTUNITY SPECIALIST IN THE CHIEF EEO
 COUNSELOR'S OFFICE.  THIS EMPLOYEE FUNCTIONS AS AN ADMINISTRATIVE
 ASSISTANT TO THE CHIEF COUNSELOR.  THE INCUMBENT HAS ACCESS TO
 CONFIDENTIAL PERSONNEL FILES AND INVESTIGATIVE REPORTS AND ARRANGES AND
 SCHEDULES INVESTIGATIONS AND HEARINGS.  THIS EMPLOYEE COMPILES STATUS
 REPORTS ON ALL FORMAL AND INFORMAL COMPLAINTS, AND KEEPS THE CHIEF EEO
 COUNSELOR INFORMED OF ANY NEW OR REVISED POLICIES AND PROCEDURES
 AFFECTING OFFICE OPERATIONS.  THE EMPLOYEE ALSO SERVES ON OCCASION AS A
 COUNSELOR.
 
    THE GS-7, 9, AND 11 COUNSELORS ARE NOT INVOLVED IN THE FORMULATION OF
 THE RESPONDENT'S AFFIRMATIVE ACTION PLAN, MONITORING OF PERSONNEL
 ACTIONS, OR TRAINING CONCERNING EEO MATTERS.  THESE MATTERS ARE
 GENERALLY HANDLED BY EQUAL EMPLOYMENT OPPORTUNITY OFFICERS AND
 SPECIALISTS ASSIGNED TO THE CIVILIAN PERSONNEL.  THIS OFFICE IS SEPARATE
 FROM THE CASE PROCESSING FUNCTION OF THE CHIEF EEO COUNSELOR.  AS NOTED,
 THE PRIMARY FUNCTION OF THE EEO COUNSELORS IN QUESTION IS TO SERVE AS A
 BRIDGE BETWEEN THE COMPLAINANT AND MANAGEMENT AND ATTEMPT TO IMPARTIALLY
 RESOLVE MATTERS IN AN INFORMAL MANNER, WHERE POSSIBLE.  MOST COMPLAINTS
 INVOLVE ISSUES RELATING TO PERSONNEL PRACTICES.
 
    TWO EEO COUNSELORS, A GS-7 AND 11, AND THE FORMER CHIEF EEO
 COUNSELOR, TESTIFIED, IN EFFECT, THAT THEY BELIEVED THE SA-ALC
 REGULATION 500-4 WILL ADVERSELY AFFECT THE CAREERS OF EEO COUNSELORS,
 SINCE COUNSELORS WILL BE ROTATED OUT OF THE OFFICE IN THREE YEARS OR
 LESS AND WILL BE UNABLE TO OBTAIN PROMOTIONS IN THE EEO FIELD AND MAKE
 EEO COUNSELING A CAREER.
 
    ONE OF THESE COUNSELORS FILED A COMPLAINT UNDER THE DISCRIMINATION
 PROCEDURES OF FPM CHAPTER 713 AND AFR 40-713 ALLEGING, IN PART, THAT THE
 REGULATION DISCRIMINATED AGAINST MEXICAN-AMERICANS.  DURING THE FEDERAL
 EMPLOYEES APPEAL AUTHORITY HEARING INTO THESE ALLEGATIONS, THE UNION
 STEWARD REPRESENTING THE EMPLOYEE ALLEGED THAT A FURTHER INDICATION OF
 THE DISCRIMINATORY INTENT WAS THE FACT THAT THE REGULATION WAS ISSUED
 WITHOUT PRIOR CONSULTATION WITH THE UNION.
 
    THREE MEMBERS OF THE BARGAINING UNIT TESTIFIED THAT THEY HAD BEEN
 INTERESTED IN OBTAINING EEO COUNSELOR POSITIONS FOR SOMETIME, AND TWO OF
 THEM HAD PREVIOUSLY APPEARED IN A PROFILE FOR A VACANCY, BUT THAT THEY
 WERE UNAWARE OF ANY ROTATION POLICY AMONG COUNSELORS AT THAT TIME, AND
 WOULD NO LONGER BE INTERESTED IN OBTAINING SUCH A POSITION IN VIEW OF
 THE POLICY.
 
                DISCUSSION, CONCLUSION, AND RECOMMENDATIONS
 
    SECTION 11(A) OF EXECUTIVE ORDER 11491, AS AMENDED, ESTABLISHES UPON
 AN AGENCY THE OBLIGATION TO BARGAIN CONCERNING PERSONNEL POLICIES AND
 PRACTICES AFFECTING THE BARGAINING UNIT AND MATTERS AFFECTING BARGAINING
 UNIT WORKING CONDITIONS.
 
    WHILE IT HAS PREVIOUSLY BEEN HELD THAT THE PROCEDURES AND FACTORS
 INVOLVED IN THE METHOD OF SELECTION OF EEO COUNSELORS IS A NEGOTIABLE
 MATTER UNDER THE ORDER, /4/ THE REGULATION HERE DOES NOT DEAL WITH THE
 PROCEDURES AND FACTORS INVOLVED IN THE METHOD OF SELECTION OF EEO
 COUNSELORS, BUT WITH THEIR TENURE IN THAT POSITION.
 
    SECTION 12(B)(2) OF THE ORDER RESERVES TO MANAGEMENT DECISION AND
 ACTION AUTHORITY TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN
 EMPLOYEES IN POSITIONS WITHIN THE AGENCY.  SINCE THE AUTHORITY TO PLACE
 AND RETAIN, OR TRANSFER EMPLOYEES IS A RESERVED RIGHT OF MANAGEMENT
 UNDER SECTION 12(B)(2), I CONCLUDE THAT MANAGEMENT WAS NOT REQUIRED TO
 NEGOTIATE WITH COMPLAINANT CONCERNING THE DECISION TO ROTATE EEO
 COUNSELORS AS OUTLINED IN SA-ALC REGULATION 500-4, OUT OF THEIR
 POSITIONS ON A PERIODIC BASIS, ALTHOUGH THIS DECISION WAS A SIGNIFICANT
 SHIFT FROM PAST PRACTICE INSOFAR AS THE DECISION TO STRICTLY ENFORCE THE
 ROTATION OF COUNSELORS, OTHER THAN THE CHIEF COUNSEL, IS CONCERNED.
 
    NOTWITHSTANDING THE FACT THAT A PARTICULAR MANAGEMENT DECISION IS
 NON-NEGOTIABLE BECAUSE IT FALLS WITHIN THE AMBIT OF SECTION 11(B) OR
 12(B) OF THE ORDER, MANAGEMENT MUST, NEVERTHELESS, AFFORD AN EXCLUSIVE
 REPRESENTATIVE REASONABLE NOTICE AND AN OPPORTUNITY TO BARGAIN WITH
 RESPECT TO THE IMPACT AND IMPLEMENTATION OF SUCH ACTION, PRIOR TO ITS
 IMPLEMENTATION, WHEN SUCH ACTION EFFECTS A CHANGE IN EXISTING PERSONNEL
 POLICIES AND PRACTICES OR WORKING CONDITIONS OF UNIT EMPLOYEES, PROVIDED
 IT DOES NOT INTERFERE WITH THE EXERCISE OF THE RESERVED RIGHTS
 THEMSELVES.  DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL
 SECURITY ADMINISTRATION, BRSI, NORTHEASTERN PROGRAM SERVICE CENTER,
 A/SLMR NO. 984(1978);  U.S. CUSTOMS SERVICE, REGION VII, LOS ANGELES,
 CALIFORNIA, A/SLMR NO. 1066 (1978);  DEPARTMENT OF THE TREASURY,
 INTERNAL REVENUE SERVICE, BROOKHAVEN SERVICE CENTER, 7 A/SLMR 255,
 A/SLMR NO. 814 (1977).
 
    RESPONDENT CONTENDS THAT THIS ACTION IS BARRED BY SECTION 19(D)
 INASMUCH AS A COUNSELOR FILED A DISCRIMINATION COMPLAINT UNDER FPM
 CHAPTER 713 CONCERNING THE REGULATION AND ALLEGED, IN PART, THAT THE
 REGULATION WAS ISSUED WITHOUT PRIOR CONSULTATION WITH THE UNION.  THIS
 ACTION IS NOT BARRED BY SECTION 19(D) OF THE ORDER.  SECTION 19(D)
 STATES THAT "ISSUES WHICH CAN PROPERLY BE RAISED UNDER AN APPEALS
 PROCEDURE MAY NOT BE RAISED UNDER THIS SECTION." IT HAS PREVIOUSLY BEEN
 HELD THAT THE APPEALS PROCEDURE PROVIDED BY 5 CFR PART 713 AND THE
 CORRESPONDING FPM SECTIONS IS NOT ONE IN WHICH UNFAIR LABOR PRACTICE
 ISSUES CAN PROPERLY BE RAISED.  VETERANS ADMINISTRATION, VETERANS
 BENEFITS OFFICE, 3 A/SLMR 444, A/SLMR NO. 296 (1973).
 
    RESPONDENT ALSO CONTENDS THAT SINCE CONSULTATION IS REQUIRED ONLY AS
 TO CHANGES AFFECTING UNIT PERSONNEL, THERE WAS NO OBLIGATION TO BARGAIN
 WITH THE UNION.  RESPONDENT ASSERTS THAT THE REGULATION ONLY DIRECTLY
 AFFECTS EEO COUNSELORS, AND THESE COUNSELORS ARE OUTSIDE THE BARGAINING
 UNIT PURSUANT TO SECTION 10(B)(2) OF THE ORDER, BECAUSE THEY ARE ENGAGED
 IN FEDERAL PERSONNEL WORK IN OTHER THAN A CLERICAL CAPACITY.
 
    IT IS WELL ESTABLISHED THAT WHEN AN AGENCY UNILATERALLY DETERMINES
 THE UNIT STATUS OF EMPLOYEES, IT ACTS AS ITS PERIL, AND AN ERRONEOUS
 DETERMINATION COULD SUPPORT A VIOLATION OF THE ORDER.  U.S. MARINE CORPS
 AIR STATION, EL TORRO, A/SLMR NO. 560, 4 FLRC 218, FLRC NO. 75A-115
 (1976).  THUS, THE REFUSAL TO MEET AND CONFER ON THE IMPACT AND
 IMPLEMENTATION OF THE CHANGE HEREIN ON EEO COUNSELORS WOULD BE VIOLATIVE
 OF THE ORDER IF THE EEO COUNSELORS, IN FACT, WERE MEMBERS OF THE
 BARGAINING UNIT.  CF. ENVIRONMENTAL PROTECTION AGENCY, REGION III,
 A/SLMR NO. 999 (MARCH 3, 1978).
 
    I CONCLUDE THAT THE TWO EQUAL OPPORTUNITY SPECIALISTS GS-160-12 ARE
 ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
 CAPACITY.  THE RECORD REFLECTS THAT THEY, IN PART, RECEIVE FORMAL
 COMPLAINTS AND MAKE EFFECTIVE RECOMMENDATIONS REGARDING DISPOSITIONS OF
 THE COMPLAINTS.  THEY ALSO COORDINATE WITH AFFIRMATIVE ACTION EMPLOYEES
 IN THE CIVILIAN PERSONNEL DIVISION TO IDENTIFY PROBLEM AREAS AND SECURE
 FULL INVOLVEMENT IN THE EEO PROGRAM FROM ALL SEGMENTS OF THE MANAGEMENT
 STRUCTURE.  THESE DUTIES ARE SUBSTANTIALLY SIMILAR TO THOSE OF POSITIONS
 WHICH HAVE BEEN EXCLUDED IN THE PAST AS INVOLVING FEDERAL PERSONNEL WORK
 IN OTHER THAN A CLERICAL CAPACITY.  SEE DEPARTMENT OF HEALTH, EDUCATION,
 AND WELFARE, U.S. OFFICE OF EDUCATION, HEADQUARTERS, A/SLMR NO. 803, 7
 A/SLMR 190 (1977).
 
    THE FOUR GS-160-11S, TWO GS-160-9S, AND ONE GS-160-07 EQUAL
 OPPORTUNITY SPECIALISTS PRESENT A MORE DIFFICULT QUESTION.  UNION
 MEMBERS OR MEMBERS OF AN EXCLUSIVE BARGAINING UNIT ARE NOT PRECLUDED
 FROM BEING SELECTED AS EEO COUNSELORS.  FEDERAL PERSONNEL MANUAL LETTER
 NO. 713-29, PART II(B)(5)(A)(2), DATED SEPTEMBER 12, 1974.  IT HAS BEEN
 HELD THAT THERE IS NO CONFLICT OF INTEREST UNDER SECTION 1(B) OF THE
 ORDER WHEN A PART-TIME EEO COUNSELOR SERVES SIMULTANEOUSLY AS A UNION
 OFFICER, WHERE THE PART-TIME COUNSELOR'S DUTIES AS A UNION OFFICER
 INVOLVE ONLY INTERNAL MANAGEMENT OF THE UNION AND DOES NOT REQUIRE THAT
 THE COUNSELOR BE AN ADVERSARY OF MANAGEMENT AND AN ADVOCATE FOR
 EMPLOYEES.  GENERAL SERVICES ADMINISTRATION, NATIONAL PERSONNEL RECORDS
 CENTER, A/SLMR NO. 1174 (DEC. 29, 1978).
 
    THE EEO COUNSELORS IN THE PRESENT CASE ARE FULL-TIME COUNSELORS.
 HOWEVER, THEY ARE NOT INVOLVED IN THE FORMULATION OR COORDINATION OF THE
 RESPONDENT'S AFFIRMATIVE ACTION PLAN, MONITORING OF PERSONNEL ACTIONS,
 OR TRAINING CONCERNING EEO MATTERS WHICH HAVE BEEN KEY CONSIDERATIONS
 REGARDING THE EXCLUSION OF SOME EMPLOYEES FROM THE BARGAINING UNIT IN
 THE PAST.  SEE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, U.S. OFFICE
 OF EDUCATION, HEADQUARTERS, SUPRA;  U.S. NAVAL WEAPONS STATION, SEAL
 BEACH, CALIFORNIA, DEPARTMENT OF THE NAVY, 7 A/SLMR 331, A/SLMR NO. 827
 (1977);  U.S. DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REGIONAL
 OFFICE, VI, 3 A/SLMR 224, A/SLMR NO. 266 (1973);  PORTLAND AREA OFFICE,
 DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, 1 A/SLMR 522, A/SLMR NO.
 111 (1971).  THEY ARE ALSO NOT INVOLVED IN ACTIVITY NORMALLY ASSOCIATED
 WITH PERSONNEL WORK, SUCH AS THE PREPARATION AND PROCESSING OF PERSONNEL
 ACTIONS INVOLVING HIRINGS, PROMOTIONS, REASSIGNMENTS, DEMOTIONS, PAY
 INCREASES, TRANSFERS, ADVERSE ACTIONS, TRAINING AND EMPLOYEE
 DEVELOPMENT.  CF. DEFENSE SUPPLY AGENCY, DEFENSE DEPARTMENT, TRACY,
 CALIFORNIA, 4 A/SLMR 302, A/SLMR NO. 386 (1974).  NOR IS MERE ACCESS TO
 PERSONNEL OR STATISTICAL INFORMATION ALONE SUFFICIENT TO WARRANT THE
 EXCLUSION OF AN EMPLOYEE FROM AN EXCLUSIVELY RECOGNIZED UNIT.  VIRGINIA
 NATIONAL GUARD, HEADQUARTERS, 4TH BATTALION, 111TH ARTILLERY, 1 A/SLMR
 332, A/SLMR NO.  69 (1971).
 
    THE RECORD REFLECTS THAT THE FULL-TIME ROLE OF THESE EEO COUNSELORS
 IS TO SERVE AS A BRIDGE BETWEEN EMPLOYEES AND MANAGEMENT AND ATTEMPT TO
 IMPARTIALLY RESOLVE EEO DISCRIMINATION COMPLAINTS IN AN INFORMAL MANNER,
 WHERE POSSIBLE.  MOST OF THE COMPLAINTS THESE EMPLOYEES RECEIVE INVOLVE
 ISSUES RELATING TO PERSONNEL PRACTICES.  INDEED, PART OF THE POLICY AND
 PROGRAM OBJECTIVE OF THE AIR FORCE EEO PROGRAM UNDER EXECUTIVE ORDER
 11478 AND THE EQUAL EMPLOYMENT OPPORTUNITY ACT OF 1972 IS TO ENSURE THAT
 "TOTAL PERSONNEL MANAGEMENT . . . BE . . . FREE FROM DISCRIMINATION AND
 . . . PROVIDE EQUAL OPPORTUNITY," AND THAT THE AIR FORCE CONTINUES TO
 SEEK OUT AND CORRECT (OR ELIMINATE) ANY PERSONNEL MANAGEMENT POLICY,
 PROCEDURE, OR PRACTICE THAT MAY . . .  DENY EQUALITY OF OPPORTUNITY . .
 . " (RESPONDENT'S EX. 3).  IN ORDER TO PROPERLY PERFORM THEIR DUTIES IN
 HANDLING COMPLAINTS RELATING TO SUCH MATTERS EEO COUNSELORS MUST RECEIVE
 TRAINING IN PERSONNEL MANAGEMENT AND IN BASIC AND ADVANCED COUNSELING.
 FPM LETTER 713-40(8), AUG. 17, 1977.  THE COUNSELING WHICH THEY ACCORD
 TO COMPLAINANTS, SUPERVISORS, AND MANAGEMENT OFFICIALS IN INDIVIDUAL
 CASES IS CLOSELY AKIN TO THAT PERFORMED BY OTHER NON-CLERICAL PERSONNEL
 EMPLOYEES.  CF. U.S. PATENT AND TRADEMARK OFFICE, 7 A/SLMR 512 AT 516,
 A/SLMR NO. 856 (1977).
 
    THEY ALSO BECOME PRIVY TO ESSENTIALLY THE SAME CONFIDENTIAL PERSONNEL
 FILES AND OTHER CONFIDENTIAL INFORMATION TO WHICH OTHER PERSONNEL
 SPECIALISTS HAVE ACCESS, ALTHOUGH THEIR ACCESS MUST GENERALLY RELATE TO
 PENDING CASES AND IS NOT AS OPEN-ENDED OR "UNRESTRICTED" AS THAT GIVEN
 PERSONNEL SPECIALISTS.
 
    IN MY VIEW, THE PERVASIVE INVOLVEMENT OF THESE FULL-TIME COUNSELORS
 IN PERSONNEL MATTERS WARRANTS THE CONCLUSION THAT THEY ARE ENGAGED IN
 NON-CLERICAL FEDERAL PERSONNEL WORK UNDER SECTION 10(B)(2) OF THE ACT,
 WHICH PRECLUDES THEIR INCLUSION WITHIN THE EXCLUSIVELY RECOGNIZED UNIT.
 
    THE DETERMINATION THAT THESE FULL-TIME COUNSELORS ARE OUTSIDE THE
 BARGAINING UNIT DOES NOT END THE MATTER, HOWEVER, IF THE REGULATION
 DEALING WITH THE REQUIRED ROTATION OF EEO COUNSELORS EFFECTS A CHANGE IN
 EXISTING PERSONNEL POLICIES AND PRACTICES OR WORKING CONDITIONS OF
 REPRESENTED EMPLOYEES.
 
    ALTHOUGH THE RECORD INDICATES THAT SOME BARGAINING UNIT EMPLOYEES
 WOULD NOT NOW BE INTERESTED IN APPLYING FOR EEO COUNSELOR POSITIONS
 BECAUSE OF THE ROTATION POLICY, THERE IS NO EVIDENCE THAT THE POLICY
 MADE ANY CHANGE IN THE ACTUAL ELIGIBILITY OF BARGAINING UNIT EMPLOYEES
 TO BE CONSIDERED FOR SUCH POSITIONS, OR THAT IT AFFECTED PROVISIONS OF
 THE NEGOTIATED AGREEMENT DEALING WITH PROMOTIONS.  THE REGULATION MAY
 INDIRECTLY AFFECT BARGAINING UNIT EMPLOYEES BY HAVING SOME IMPACT ON THE
 EFFECTIVENESS OF THE EEO PROGRAM.  HOWEVER, IT HAS BEEN HELD THAT THE
 BARGAINING OBLIGATION CONTEMPLATED BY SECTION 11(A) OF THE ORDER DOES
 NOT EMBRACE EVERY ISSUE WHICH IS OF INTEREST AND WHICH INDIRECTLY MAY
 AFFECT EMPLOYEES.  DEPARTMENT OF DEFENSE, AIR NATIONAL GUARD, TEXAS AIR
 NATIONAL GUARD, CAMP MALRY, AUSTIN, TEXAS, 6 A/SLMR 591, A/SLMR NO.  738
 (1976).
 
    ACCORDINGLY, I FIND INSUFFICIENT BASIS TO CONCLUDE THAT SA-ALC
 REGULATION 500-4 EFFECTED A CHANGE IN EXISTING PERSONNEL POLICIES AND
 PRACTICES OR WORKING CONDITIONS OF THE UNIT EMPLOYEES.  IN THE
 CIRCUMSTANCES HERE DISCLOSED, A PREPONDERANCE OF THE EVIDENCE DOES NOT
 SUPPORT A VIOLATION OF SECTIONS 19(A)(1) AND (6) OF THE EXECUTIVE ORDER,
 AS ALLEGED.
 
                              RECOMMENDATION
 
    HAVING FOUND THAT RESPONDENTS HAVE NOT ENGAGED IN CONDUCT PROHIBITED
 BY SECTIONS 19(A)(1) AND (6) OF THE EXECUTIVE ORDER, IT IS HEREBY
 RECOMMENDED THAT THE COMPLAINT HEREIN BE DISMISSED IN ITS ENTIRETY.
 
                             GARVIN LEE OLIVER
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JULY 24, 1979
 
    WASHINGTON, D.C.
 
    /1/ CF. SOCIAL SECURITY ADMINISTRATION, BUREAU OF HEARINGS AND
 APPEALS, 2 FLRA NO. 27(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