U.S. Department of Air Force, Air Force Systems Command, Electronic Systems Division, Hanscom AFB, Massachusetts (Respondent) and National Federation of Federal Employees, Local 975 (Labor Organization) 



[ v05 p637 ]
05:0637(88)CA
The decision of the Authority follows:


 5 FLRA No. 88
 
 U.S. DEPARTMENT OF AIR FORCE
 AIR FORCE SYSTEMS COMMAND
 ELECTRONIC SYSTEMS DIVISION
 HANSCOM AFB, MASSACHUSETTS
 Respondent
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 975
 Labor Organization
 
                                            Case No. 1-CA-256
 
                            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.  NO EXCEPTIONS WERE FILED
 BY ANY PARTY.
 
    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 (5 U.S.C. 7101-7135), 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, IN
 THE ABSENCE OF EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE
 ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION THAT
 THE ALLEGED VIOLATION OF THE STATUTE HEREIN BE DISMISSED, AS THE LABOR
 ORGANIZATION HAD BEEN GIVEN ADEQUATE ADVANCE NOTICE OF THE PROPOSED
 DOWNGRADINGS IN QUESTION AND, DESPITE SUCH NOTICE, FAILED TO REQUEST
 BARGAINING UPON THE IMPACT AND/OR IMPLEMENTATION OF SUCH ACTION.  CF.
 DEPARTMENT OF THE AIR FORCE, SCOTT AIR FORCE BASE, ILLINOIS, 5 FLRA NO.
 2(1981).  IN SO DOING, THE AUTHORITY NOTES THAT, WHILE THE RESPONDENT
 ARGUED THAT THE DOWNGRADES INVOLVED A NON-NEGOTIABLE MATTER BECAUSE
 THEY
 (1) RELATED TO "CLASSIFICATION OF ANY POSITION" UNDER 5 U.S.C.
 7103(A)(14)(B), AND (2) DID NOT HAVE A SUBSTANTIAL IMPACT ON UNIT
 EMPLOYEES, THE ADMINISTRATIVE LAW JUDGE FOUND IT UNNECESSARY TO ADDRESS
 THAT ARGUMENT.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 1-CA-256 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., MAY 15, 1981
   
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
   
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    JAMES A. HARPER, ESQUIRE
    JOHN G. ABIZAID, ESQUIRE
                   FOR THE RESPONDENT
 
    PAUL E. STANZLER, ESQUIRE
    PETER F. DOW, ESQUIRE
                   FOR THE GENERAL COUNSEL
 
    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 APRIL 25, 1980 BY THE
 REGIONAL DIRECTOR, FIRST REGION, FEDERAL LABOR RELATIONS AUTHORITY,
 BOSTON, MASSACHUSETTS, AGAINST THE U.S. DEPARTMENT OF AIR FORCE, AIR
 FORCE SYSTEMS COMMAND, ELECTRONIC SYSTEMS DIVISION, HANSCOM AFB,
 MASSACHUSETTS ("RESPONDENT").
 
    THE PRIMARY ISSUE PRESENTED FOR DECISION IN THIS CASE IS WHETHER
 RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE BY FAILING
 TO NOTIFY THE CHARGING PARTY OF ITS DECISION TO DOWNGRADE TWO GS-13
 ELECTRONIC ENGINEER POSITIONS, AND THEREBY REFUSING TO BARGAIN REGARDING
 THE IMPACT AND IMPLEMENTATION OF THAT DECISION.  RESPONDENT CONTENDS
 THAT IT PROVIDED THE UNION WITH ADEQUATE NOTICE OF ITS DECISION PRIOR TO
 IMPLEMENTATION.  IT IS UNDISPUTED THAT THE UNION NEVER REQUESTED
 BARGAINING ON THIS MATTER.
 
    A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED AT BOSTON,
 MASSACHUSETTS, ON JUNE 13, 1980.  ALL PARTIES WERE REPRESENTED BY
 COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT
 EVIDENCE, AND EXAMINE AND CROSS-EXAMINE WITNESSES.  BOTH PARTIES FILED
 BRIEFS WHICH HAVE BEEN 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, I MAKE
 THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED
 ORDER:  /1/
 
                             FINDINGS OF FACT
 
    AT ALL TIMES MATERIAL HEREIN, THE NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 975 ("UNION") HAS BEEN RECOGNIZED BY RESPONDENT AS THE
 EXCLUSIVE REPRESENTATIVE FOR AN APPROPRIATE UNIT OF CERTAIN PROFESSIONAL
 EMPLOYEES OF THE RESPONDENT.
 
    DURING JUNE OF 1979, WILLIAM J. SMITH, THE LOCAL UNION PRESIDENT, MET
 WITH MEMBERS OF MANAGEMENT AND WAS INFORMED THAT RESPONDENT ELECTRONIC
 SYSTEMS DIVISION ("ESD") HAD BEEN DIRECTED BY THE AIR FORCE SERVICE
 COMMAND TO FORMULATE A HIGH GRADE REDUCTION PLAN WHICH WOULD HAVE THE
 EFFECT OF LOWERING AVERAGE GS GRADES BY ATTRITION.  SMITH UNDERSTOOD
 THAT ENCUMBERED POSITIONS WOULD NOT BE AFFECTED.  BY LETTER DATED JULY
 30, 1979, RESPONDENT INFORMED SMITH THAT IT WAS THE RESPONSIBILITY OF
 EACH OF THE "SHADOW" ORGANIZATIONS TO ASSURE THAT AN ADEQUATE NUMBER OF
 VACANT POSITIONS AT THE GS-13 LEVEL WERE IDENTIFIED FOR REDUCTION.
 SMITH KNEW THAT THE TECHNICAL OPERATIONS SUBDIVISION ("TO") WAS A SHADOW
 ORGANIZATION.
 
    ON JULY 5, 1979, SMITH ATTENDED A MEETING WITH COL. MCMILLAN AND
 OTHER OFFICIALS FROM MANAGEMENT WHEREIN THE SUBJECT CONCERNED THE
 REORGANIZATION OF THE SURVEILLANCE AND CONTROL SYSTEMS DEPUTE ("OC").
 SMITH WAS TOLD THAT THERE WOULD BE NO DOWNGRADING AS A RESULT OF THIS
 REORGANIZATION.
 
    PRIOR TO THE FALL OF 1979, THE CLASSIFICATION SECTION OF THE
 RESPONDENT'S CIVILIAN PERSONNEL OFFICE MADE A SURVEY TO DETERMINE
 WHETHER ANY POSITIONS IN OC SHOULD BE DOWNGRADED.  AS A RESULT OF THIS
 SURVEY, TWO GS-13 ELECTRONIC ENGINEER POSITIONS IN THE CHARGING PARTY'S
 BARGAINING UNIT WERE IDENTIFIED FOR POTENTIAL DOWNGRADING.  RESPONDENT
 DECIDED THAT THESE POSITIONS SHOULD BE DOWNGRADED TO THE GS-11 LEVEL
 AFTER THE PRESENT INCUMBENTS VACATED THEIR POSITIONS.  THIS TENTATIVE
 DECISION WAS THEN REFERRED TO TO, THE MANPOWER MATRIX ORGANIZATION
 CONTROLLING ENGINEERING POSITIONS WITHIN ESD.  TO AGREED WITH THE
 FINDINGS OF THE CLASSIFICATION SECTION.
 
    ON SEPTEMBER 5, 1979, THE DEPUTY FOR OC ISSUED A LETTER TO VARIOUS
 SUBDIVISIONS OF ESD CONCERNING THE ABOVE-MENTIONED "REORGANIZATION." OC
 PROPOSED, INTER ALIA, TO COMBINE THE OTH ENGINEERING DIVISION (OCSE)
 WITH THE OTH TEST DIVISION (OCST) TO FORM A NEW OTH ENGINEERING AND TEST
 DIVISION (OCUE).  ONE OF THE ATTACHMENTS TO THIS LETTER LISTED THE EIGHT
 INDIVIDUAL EMPLOYEES WHO WOULD CONSTITUTE THE PROPOSED OCUE DIVISION, IN
 PART, IN THE FOLLOWING MANNER:  (TABLE OMITTED)
 
    WITH REGARD TO THE TWO "SCHEDULED DOWNGRADE" ITEMS, THE LETTER HAD
 PREVIOUSLY STATED IN PARAGRAPH SIX THAT "THE ONLY REDUCTIONS IN
 AUTHORIZED GRADE SHOWN ARE THOSE ALREADY PROPOSED BY THE TO MANPOWER
 PLAN."
 
    A COPY OF THE ABOVE SEPTEMBER 5 LETTER WAS GIVEN TO A NAGE
 REPRESENTATIVE WHO THEREAFTER GAVE A COPY OF THE LETTER TO WILLIAM
 SMITH, PRESIDENT OF THE CHARGING PARTY.
 
    SUBSEQUENTLY ON SEPTEMBER 28 MANAGEMENT HELD A MEETING WITH SMITH
 (PRESIDENT OF THE CHARGING PARTY UNION) AND JOE SPIRITO (A NAGE
 REPRESENTATIVE).  PROFESSIONAL EMPLOYEES AT THE ACTIVITY WERE
 REPRESENTED BY SMITH'S UNION AND NON-PROFESSIONAL EMPLOYEES WERE
 REPRESENTED BY NAGE.  REPRESENTATIVES OF MANAGEMENT AT THIS MEETING
 INCLUDED COL.  MCMILLAN AND ROBERT T. KENNEDY, A LABOR RELATIONS
 SPECIALIST AT HANSCOM AFB.  ONE PURPOSE OF THE MEETING WAS TO DISCUSS
 THE AFOREMENTIONED REORGANIZATION OF OC AND TO MAKE IT CLEAR THAT THE
 TWO DOWNGRADING ACTIONS MENTIONED IN THE SEPTEMBER 5 LETTER WERE
 PROPOSED BY, AND WITHIN THE JURISDICTION OF, TO AND WERE NOT A RESULT OF
 THE REORGANIZATION OF OC.
 
    AT THE MEETING MCMILLAN SPECIFICALLY TOLD SMITH THAT THE TWO
 DOWNGRADING ACTIONS HAD NOTHING TO DO WITH THE OC REORGANIZATION AND HAD
 BEEN PROPOSED BY TO.  HE MADE IT CLEAR THAT OC HAD NO AUTHORITY TO
 DOWNGRADE POSITIONS.  IN RESPONSE TO THIS, SMITH MADE SOME "VIOLENT
 REMARKS" ABOUT TO:  MCMILLAN TOLD SMITH THAT THE LATTER SHOULD TAKE THE
 MATTER UP WITH TO.  /2/ ACCORDING TO KENNEDY'S CONTEMPORANEOUS, CREDIBLE
 NOTES OF THIS MEETING, SMITH STATED THAT THE DOWNGRADING QUESTION WAS
 ONE THAT HE SHOULD TAKE UP WITH TO AND THAT HE INTENDED TO DO SO.
 
    IN ADDITION TO THE ABOVE CONVERSATION, MR. SPIRITO FROM NAGE ASKED
 MCMILLAN TO RESPOND TO A QUESTIONNAIRE REQUESTING SPECIFIC INFORMATION
 PERTAINING TO THE OC REORGANIZATION.  THE FORM WAS INTENDED TO ELICIT
 INFORMATION REGARDING THE EFFECT THAT THE REORGANIZATION WOULD HAVE UPON
 EACH OF THE EMPLOYEES IN OC.  NAGE REQUESTED, IN PART, THAT EACH
 EMPLOYEE IN EACH SUBDIVISION BE LISTED BY NAME, OFFICE CODE, OCCUPATION,
 RANK OR GRADE, JOB FUNCTION CODE, AND PROPOSED CHANGE.  SMITH REQUESTED
 THAT A COPY OF RESPONDENT'S REPLY TO NAGE BE SENT TO HIM BECAUSE IT
 WOULD ANSWER HIS OWN QUESTIONS AS WELL.  SMITH HAD HELPED DRAFT THE
 QUESTIONNAIRE.
 
    MCMILLAN RESPONDED TO NAGE'S SEPTEMBER 28 REQUEST FOR ADDITIONAL
 DETAILS REGARDING THE REORGANIZATION IN A LETTER DATED OCTOBER 24, 1979.
  A COPY OF THE LETTER WAS SENT TO SMITH.  FIRST, THE ATTACHMENT TO THE
 LETTER LISTED THE NAMES OF ALL EMPLOYEES "BEFORE THE REORGANIZATION"
 UNDER THEIR RESPECTIVE SUBDIVISIONS WITHIN OC.  EVERY EMPLOYEE ON THE
 LIST WAS GIVEN HIS OWN INDIVIDUAL "CROSS KEY NUMBER." THE CROSS KEY
 NUMBERS WERE USED THROUGHOUT THE LETTER TO REFER TO INDIVIDUAL EMPLOYEES
 WITHOUT NAMING THEM.  AFTER THE CROSS KEY NUMBER, EACH EMPLOYEE ON THE
 ABOVE LIST WAS DESCRIBED BY HIS POSITION NUMBER, NAME, JOB FUNCTION,
 RANK OR GS LEVEL, AND JOB FUNCTION CODE.  SECOND, THE ATTACHMENT
 INCLUDED CLEARLY DEMARCATED LISTS OF THE EMPLOYEES AND THEIR LOCATION
 AFTER THE REORGANIZATION.  THUS AN INDIVIDUAL WISHING TO KNOW WHICH
 EMPLOYEES WOULD BE LOCATED IN THE POST-REORGANIZATION OTH ENGINEERING
 AND TEST DIVISION (OCUE), I.E.  THE DIVISION CONTAINING THE PROJECTED
 DOWNGRADINGS SET FORTH IN THE SEPTEMBER 5 LETTER, WOULD HAVE FOUND THE
 FOLLOWING:
 
    OCUE-- OTH ENGINEERING & TEST DIVISION (TABLE OMITTED)
 
    THUS IT WAS CLEAR THAT OCUE WOULD INCLUDE THREE GS-13'S, ALL OF WHOM
 WERE ELECTRONIC ENGINEERS, I.E. PROFESSIONALS WITHIN THE BARGAINING UNIT
 OF THE CHARGING PARTY.  THE NAMES OF THOSE INDIVIDUALS COULD EASILY BE
 OBTAINED BY (A) REFERRING TO THE CROSS KEY NUMBERS IN THE LEFT HAND
 COLUMN (22, 23, AND 49), AND (B) REFERRING TO THOSE CROSS KEY NUMBERS IN
 THE ABOVE-MENTIONED "LIST OF NAMES BEFORE THE REORGANIZATION." REFERENCE
 TO THE LATTER WOULD HAVE REVEALED THAT OCUE WOULD CONTAIN THE FOLLOWING
 THREE GS-13 ENGINEERS:  (TABLE OMITTED)
 
    IT WILL BE RECALLED, AT THIS POINT, THAT THE SEPTEMBER 5 LETTER
 ANNOUNCED THAT TWO GS-13 POSITIONS PLANNED FOR OCUE HAD BEEN SCHEDULED
 BY TO TO BE DOWNGRADED IN FEBRUARY OF 1980 TO THE GS-11 LEVEL.  THE
 POSITION NUMBERS FOR THOSE TWO POSITIONS HAD BEEN DESCRIBED AS "TDE042"
 AND "TDE513." THE "D" IN THOSE POSITION NUMBERS, AS IN THE CASE OF ALL
 POSITION NUMBERS LISTED IN THE SEPTEMBER 5 LIST, WAS A TYPOGRAPHICAL
 ERROR AND SHOULD HAVE BEEN AN "O".  THIS DISCREPANCY SHOULD HAVE BEEN
 APPARENT TO ANYONE COMPARING THE SEPTEMBER 5 LIST WITH THE OCTOBER 24
 LIST.  IN ANY EVENT, I FIND THAT THE POSITIONS OCCUPIED BY GEDAMINSKI
 AND SHEA WERE THE ONES TARGETED FOR POTENTIAL DOWNGRADING.  AT THE VERY
 LEAST, THE CHARGING PARTY SHOULD HAVE BEEN AWARE, AFTER READING THE
 OCTOBER 24 LETTER, THAT THE TWO POSITIONS SCHEDULED FOR DOWNGRADING WERE
 WITHIN ITS BARGAINING UNIT AND WERE OCCUPIED BY TWO OF THE FOLLOWING
 INDIVIDUALS:  NOBLE, SHEA OR GEDAMINSKI.  BY CONTACTING THOSE
 INDIVIDUALS, THE UNION WOULD HAVE DISCOVERED THAT GEDAMINSKI AND SHEA
 BOTH PLANNED TO RETIRE IN ABOUT JANUARY OF 1980.  THUS, SINCE THE
 RESPONDENT HAD ANNOUNCED ITS INTENTION TO DOWNGRADE POSITIONS ONLY WHEN
 THEY BECAME VACANT, IT WOULD HAVE BECOME QUITE OBVIOUS THAT THOSE TWO
 POSITIONS HAD BEEN TARGETED FOR DOWNGRADING.  MOREOVER, SMITH COULD HAVE
 EASILY CONFIRMED THIS BY ASKING TO.
 
    ON JANUARY 28, 1980, SMITH FILED THE CHARGE AGAINST THE RESPONDENT
 WHICH INITIATED THE INSTANT PROCEEDING.  SMITH NEVER REQUESTED
 BARGAINING WITH RESPECT TO THE PROPOSED DOWNGRADINGS.
 
    SUBSEQUENTLY, GEDAMINSKI AND SHEA RETIRED AND, AFTER CONDUCTING
 ANOTHER INVESTIGATION AS TO THE APPROPRIATENESS OF THE PROPOSED
 DOWNGRADINGS, RESPONDENT MADE FINAL DECISIONS TO DOWNGRADE THESE TWO
 VACANT POSITIONS ON FEBRUARY 5 AND MARCH 11, 1980, RESPECTIVELY.
 
                            CONCLUSIONS OF LAW
 
    IT IS WELL ESTABLISHED THAT AN AGENCY, PRIOR TO EXERCISING A RESERVED
 MANAGEMENT RIGHT, MUST GIVE THE UNION ADEQUATE NOTICE OF ITS DECISION SO
 THAT THE UNION WILL HAVE A MEANINGFUL OPPORTUNITY TO BARGAIN ON IMPACT
 AND IMPLEMENTATION PRIOR TO THE ACTUAL EFFECTUATION OF THE DECISION.
 FEDERAL RAILROAD ADMINISTRATION, 4 A/SLMR 497, A/SLMR NO. 418(1974);
 JACKSONVILLE DISTRICT, INTERNAL REVENUE SERVICE, JACKSONVILLE, FLORIDA,
 7 A/SLMR 758, A/SLMR NO. 893(1977).  RESPONDENT TAKES THE POSITION THAT
 ADEQUATE NOTICE OF A DECISION TO DOWNGRADE TWO GS-13 ENGINEERING
 POSITIONS (WHEN THEY BECAME VACANT) WAS PROVIDED TO SMITH, THE UNION
 PRESIDENT, AND THAT THE LATTER FAILED TO REQUEST NEGOTIATIONS PRIOR TO
 IMPLEMENTATION OF THE DECISION TO DOWNGRADE.  CLEARLY WHERE ADEQUATE
 NOTICE IS GIVEN, THE UNION IS OBLIGED TO REQUEST NEGOTIATIONS IN ORDER
 TO GIVE RISE TO THE RESPONDENT'S OBLIGATION TO BARGAIN.  INTERNAL
 REVENUE SERVICE (IRS) AND BROOKLYN DISTRICT OFFICE, IRS, 2 FLRA NO.
 76(1980).  SINCE THE GENERAL COUNSEL CONCEDES THAT NO NEGOTIATIONS WERE
 REQUESTED, IT IS ONLY NECESSARY TO DETERMINE WHETHER ADEQUATE NOTICE WAS
 ACTUALLY GIVEN.
 
    CLEARLY THE AGENCY MUST GIVE SPECIFIC NOTICE TO THE UNION OF ANY
 INTENDED CHANGE.  DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
 INDIANAPOLIS, INDIANA, 7 A/SLMR 844, A/SLMR NO. 909(1977).  THUS A MERE
 PASSING REFERENCE TO A GENERAL SUBJECT MATTER WITHOUT MENTIONING ANY
 CONTEMPLATED CHANGE RELATING TO THIS MATTER DOES NOT CONSTITUTE ADEQUATE
 NOTICE.  JACKSONVILLE DISTRICT, SUPRA.
 
    AT THE SEPTEMBER 28, 1979, MEETING, SMITH SHOWED COL. MCMILLAN OF OC
 THE SEPTEMBER 5 LETTER CONCERNING TWO PROPOSED DOWNGRADINGS.  SMITH WAS
 SPECIFICALLY TOLD BY COL. MCMILLAN THAT THE TWO DOWNGRADINGS (PROJECTED
 FOR FEBRUARY 1980 IN THE PROPOSED OCUE DIVISION) "WILL OCCUR" (TR.
 43:13) BUT THAT THESE DOWNGRADINGS WOULD BE THE RESULT OF ACTIONS TAKEN
 BY ANOTHER DIVISION (TO) AND WERE UNRELATED TO THE REORGANIZATION BY OC.
  MCMILLAN TOLD SMITH THAT HE SHOULD TAKE THE MATTER UP WITH TO AND SMITH
 SAID HE INTENDED TO DO SO.  /3/ THE SEPTEMBER 5 LETTER REFERRED TO THESE
 POSITIONS BY THEIR TO POSITION NUMBERS;  HOWEVER, SMITH MIGHT HAVE HAD
 TROUBLE IDENTIFYING THE INDIVIDUALS OCCUPYING THOSE SLOTS DUE TO A
 TYPOGRAPHICAL ERROR.
 
    LATER, ON OR ABOUT OCTOBER 24, 1979, MCMILLAN PROVIDED SMITH WITH A
 DETAILED LIST OF ALL EMPLOYEES IN OC WHICH DISCLOSED HOW EACH EMPLOYEE
 WOULD BE AFFECTED BY THE REORGANIZATION.  SMITH HAD ANTICIPATED THAT THE
 LIST WOULD ANSWER HIS QUESTIONS ABOUT THE DOWNGRADINGS.  THE LIST, WHEN
 READ TOGETHER WITH THE SEPTEMBER 5 LETTER, PROVIDED SMITH WITH THE
 FOLLOWING ADDITIONAL INFORMATION ABOUT THE PROPOSED DOWNGRADINGS:  (1)
 THE POSITIONS WERE TWO ELECTRONIC ENGINEER POSITIONS IN THE PROPOSED
 EIGHT-PERSON OCUE DIVISION AND AS SUCH, WERE WITHIN THE BARGAINING UNIT
 REPRESENTED BY THE CHARGING PARTY;  (2) THE POSITIONS WERE DUE TO BE
 DOWNGRADED FROM GS-13 TO GS-11 IN FEBRUARY OF 1980;  AND (3) THE
 POSITIONS WERE CURRENTLY OCCUPIED BY TWO OF THREE NAMED INDIVIDUALS.  IF
 HE HAD INFORMED EITHER THESE INDIVIDUALS OR THE TO DIVISION OF HIS
 FINDINGS, SMITH WOULD HAVE DISCOVERED THAT TWO OF THESE MEN WERE
 PLANNING TO RETIRE IN JANUARY OF 1980 AND THAT THESE WERE THE TWO
 POSITIONS TARGETED FOR DOWNGRADING.
 
    I MUST CONCLUDE AND HOLD THAT RESPONDENT NOTIFIED THE UNION OF THE
 PROPOSED DOWNGRADINGS WITH SUFFICIENT SPECIFICITY TO ENABLE IT TO
 REQUEST AND ENGAGE IN MEANINGFUL NEGOTIATIONS ON IMPACT AND
 IMPLEMENTATION PRIOR TO EFFECTUATION OF THE DECISION.  SINCE THE UNION
 DID NOT REQUEST SUCH BARGAINING, IT CANNOT BE SAID THAT RESPONDENT
 VIOLATED SECTION 7116(A)(5) AND (1) OF THE STATUTE.  /4/ I RECOMMEND
 THAT THE AUTHORITY ADOPT THE FOLLOWING ORDER:
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 1-CA-256 BE, AND
 IT HEREBY IS, DISMISSED.
 
                         RANDOLPH D. MASON
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  SEPTEMBER 17, 1980
    WASHINGTON, D.C.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE TRANSCRIPT IS HEREBY CORRECTED TO REFLECT THE PROPER SPELLING
 OF MY NAME, AND THE WORD "UNPROFESSIONALS" (TR. 38:9) IS CHANGED TO READ
 "ALL PROFESSIONALS." THE GENERAL COUNSEL'S MOTION TO MAKE OTHER CHANGES
 IN THE TRANSCRIPT IS HEREBY DENIED.
 
    /2/ MCMILLAN KNEW, AND REASONABLY ASSUMED THAT SMITH KNEW, THAT THE
 TWO POSITIONS TARGETED FOR DOWNGRADING WERE PROFESSIONAL EMPLOYEE
 POSITIONS WITHIN SMITH'S BARGAINING UNIT.  IN THIS REGARD, THE SEPTEMBER
 5 LETTER IDENTIFIED THE POSITIONS WITH THE AIR FORCE SPECIALITY CODE
 2825, THE CODE FOR ELECTRONIC ENGINEERS.  BOTH MCMILLAN AND SMITH WERE
 ELECTRONIC ENGINEERS WITH THIS AFSC CODE.  ALSO, SMITH'S "VIOLENT"
 REACTION GAVE THE IMPRESSION THAT SMITH KNEW HIS UNIT POSITIONS WERE
 AFFECTED.
 
    /3/ IN REACHING THESE FINDINGS, I HAVE CHOSEN TO DISCREDIT MOS