United States Department of Defense, Department of the Army, Headquarters, Fort Sam Houston, Texas (Respondent) and American Federation of Government Employees, Local 2154, AFL-CIO (Charging Party)



[ v08 p623 ]
08:0623(112)CA
The decision of the Authority follows:


 8 FLRA No. 112
 
 UNITED STATES DEPARTMENT OF DEFENSE,
 DEPARTMENT OF THE ARMY, HEADQUARTERS,
 FORT SAM HOUSTON, TEXAS
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2154
 Charging Party
 
                                            Case Nos. 6-CA-298
                                                      6-CA-380
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN
 CERTAIN UNFAIR LABOR PRACTICES AND RECOMMENDING THAT IT CEASE AND DESIST
 THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS.  THEREAFTER, THE GENERAL
 COUNSEL AND THE RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S DECISION.
 /1/
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
 OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
 COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  /2/ UPON CONSIDERATION OF
 THE JUDGE'S DECISION AND THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY
 HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS,
 EXCEPT AS MODIFIED HEREIN.
 
    IN CASE NO. 6-CA-298, THE JUDGE CONCLUDED THAT THE RESPONDENT
 VIOLATED SECTION 7116(A)(5) AND (1) OF THE STATUTE BY GIVING THE
 CHARGING PARTY, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 2154 (UNION), INADEQUATE NOTICE OF ITS DECISION TO INSTITUTE A
 REDUCTION-IN-FORCE (RIF), AND THEREAFTER REFUSING TO BARGAIN UPON
 REQUEST.  THE AUTHORITY DISAGREES.  THE RECORD INDICATES, AND THE JUDGE
 FOUND, THAT THE RESPONDENT NOTIFIED THE UNION THAT CERTAIN WORK WAS
 BEING CONTRACTED OUT;  THAT A RIF WOULD BE CONDUCTED AFFECTING CERTAIN
 UNIT EMPLOYEES;  THAT A MEETING WOULD BE HELD FIVE DAYS LATER TO FURNISH
 RIF LETTERS TO THE EMPLOYEES;  THAT THE UNION WAS INVITED TO SEND A
 REPRESENTATIVE TO THE MEETING;  THAT ANY QUESTIONS THE UNION MIGHT HAVE
 CONCERNING THE RIF SHOULD BE REFERRED TO A PARTICULAR INDIVIDUAL WHO WAS
 MOST FAMILIAR WITH RIF PROCEDURES;  AND THAT DESPITE SUCH NOTICE, THE
 UNION DID NOT REQUEST NEGOTIATIONS PRIOR TO THE MEETING AND DID NOT
 ATTEND THE MEETING.  UNDER THE FOREGOING CIRCUMSTANCES, THE AUTHORITY
 FINDS THAT THE UNION WAS GIVEN ADEQUATE NOTICE OF THE RESPONDENT'S
 DECISION TO CONDUCT A RIF /3/ AND AN OPPORTUNITY TO BARGAIN CONCERNING
 THE IMPACT AND IMPLEMENTATION OF THAT DECISION PRIOR TO ITS
 EFFECTUATION, /4/ BUT THAT THE UNION DID NOT MAKE A TIMELY REQUEST TO
 BARGAIN WITH RESPECT THERETO.  ACCORDINGLY, THE AUTHORITY CONCLUDES THAT
 THE RESPONDENT DID NOT UNLAWFULLY REFUSE TO BARGAIN IN GOOD FAITH, UPON
 REQUEST, AND THEREFORE DID NOT VIOLATE SECTION 7116(A)(5) AND (1) OF THE
 STATUTE, AS ALLEGED.
 
    WITH RESPECT TO CASE NO. 6-CA-380, HOWEVER, THE AUTHORITY FINDS, IN
 AGREEMENT WITH THE JUDGE, THAT THE RESPONDENT VIOLATED SECTION
 7116(A)(5) AND (1) OF THE STATUTE BY FAILING TO NOTIFY THE UNION ABOUT
 ITS DECISION TO TAKE AWAY CERTAIN AUDITING DUTIES FROM THREE PAYROLL
 CLERKS AND TO ESTABLISH A NEW POSITION, SO THAT THE UNION COULD MAKE A
 TIMELY REQUEST TO BARGAIN CONCERNING THE IMPACT AND IMPLEMENTATION OF
 SUCH DECISION ON BARGAINING UNIT EMPLOYEES.  IN FURTHER AGREEMENT WITH
 THE JUDGE, AND CONTRARY TO THE POSITION OF THE GENERAL COUNSEL, THE
 AUTHORITY FINDS THAT A STATUS QUO ANTE REMEDY IS NOT WARRANTED HEREIN.
 THUS, BALANCING THE NATURE AND CIRCUMSTANCES OF THE VIOLATION AGAINST
 THE DEGREE OF DISRUPTION IN GOVERNMENT OPERATIONS THAT WOULD BE CAUSED
 BY SUCH A REMEDY, THE AUTHORITY CONCLUDES THAT AN ORDER REQUIRING THE
 RESPONDENT TO BARGAIN UPON REQUEST ABOUT IMPACT AND IMPLEMENTATION WILL
 BEST EFFECTUATE THE PURPOSES AND POLICIES OF THE STATUTE.  IN THIS
 REGARD, THE AUTHORITY NOTES PARTICULARLY THAT THE CHANGES IN JOB DUTIES
 IMPLEMENTED BY THE RESPONDENT HAVE NOT RESULTED IN AND ARE NOT INTENDED
 BY THE RESPONDENT TO CREATE A LOSS OF GRADE OR PAY FOR ANY AFFECTED
 EMPLOYEE.  THUS, THE IMPACT ON EMPLOYEES WITHIN THE BARGAINING UNIT IS
 MINIMAL.  /5/ ACCORDINGLY, THE AUTHORITY FINDS THAT A STATUS QUO ANTE
 REMEDY IS NOT REQUIRED OR NECESSARY TO EFFECTUATE THE POLICIES OF THE
 STATUTE.
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS
 HEREBY ORDERED THAT UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF
 THE ARMY, HEADQUARTERS, FORT SAM HOUSTON, TEXAS SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING AND REFUSING TO NOTIFY THE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 
    AFL-CIO, LOCAL 2154, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ITS
 EMPLOYEES, ABOUT ITS
 
    DECISION TO CHANGE OR MODIFY JOB DUTIES OR CLASSIFICATIONS OF
 EMPLOYEES, AND AFFORDING THE
 
    EXCLUSIVE REPRESENTATIVE THE OPPORTUNITY TO BARGAIN CONCERNING THE
 PROCEDURES TO BE UTILIZED
 
    IN IMPLEMENTING SUCH DECISION AND/OR APPROPRIATE ARRANGEMENTS FOR
 EMPLOYEES ADVERSELY AFFECTED
 
    BY SUCH DECISION.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN
 
    THE EXERCISE OF THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS
 
    STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSE AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE:
 
    (A) UPON REQUEST OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 2154,
 
    THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, MEET AND NEGOTIATE
 CONCERNING THE PROCEDURES
 
    UTILIZED IN, AND/OR APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY
 AFFECTED BY, THE DECISION
 
    TO CHANGE THE JOB DUTIES OF PAYROLL CLERKS AND TO INSTITUTE THE NEW
 CLASSIFICATION OF CONTROL
 
    CLERK.
 
    (B) POST AT ALL FORT SAM HOUSTON, TEXAS, FACILITIES AND INSTALLATIONS
 COPIES OF THE
 
    ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR
 RELATIONS AUTHORITY.  UPON
 
    RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDER AND
 SHALL BE POSTED AND
 
    MAINTAINED FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES,
 INCLUDING ALL BULLETIN
 
    BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY
 POSTED.  THE COMMANDER
 
    SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT
 ALTERED, DEFACED, OR COVERED
 
    BY ANY OTHER MATERIAL.
 
    (C) NOTIFY THE REGIONAL DIRECTOR OF REGION VI OF 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.
 
    IT IS FURTHER ORDERED THAT THE COMPLAINT IN CASE NO. 6-CA-298 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C. MAY 13, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
        NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
 
           THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
 
          EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
 
            UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 
                                 RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT FAIL OR REFUSE TO NOTIFY THE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2154, THE EXCLUSIVE REPRESENTATIVE
 OF OUR EMPLOYEES, ABOUT A DECISION TO CHANGE OR MODIFY JOB DUTIES OR
 CLASSIFICATIONS OF EMPLOYEES AND AFFORD THE EXCLUSIVE REPRESENTATIVE THE
 OPPORTUNITY TO BARGAIN CONCERNING THE PROCEDURES TO BE UTILIZED IN
 IMPLEMENTING, OR APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY
 AFFECTED BY, SUCH DECISION.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL, UPON REQUEST OF THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2154, THE EXCLUSIVE REPRESENTATIVE OF OUR
 EMPLOYEES, MEET AND NEGOTIATE CONCERNING THE PROCEDURES UTILIZED IN,
 AND/OR APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY, THE
 DECISION TO CHANGE THE JOB DUTIES OF PAYROLL CLERKS AND TO INSTITUTE THE
 NEW CLASSIFICATION OF CONTROL CLERK.
 
                                (ACTIVITY)
 
    DATED:  BY:  (SIGNATURE) (TITLE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
 ADDRESS IS:  OLD POST OFFICE STATION, BRYAN AND ERVAY STREET, P.  O. BOX
 2640, DALLAS, TEXAS 75221, AND WHOSE TELEPHONE NUMBER IS (214) 767-4996.
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    EMILE HOLINER, CAPT. USAF
                            FOR THE RESPONDENT
 
    STEVEN M. ANGEL, ESQUIRE
                          FOR THE GENERAL COUNSEL
 
    BEFORE:  FRANCIS E. DOWD
                         ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE), 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ.
 CASE NO. 6-CA-298 WAS INSTITUTED BY THE ISSUANCE OF A COMPLAINT AND
 NOTICE OF HEARING ON FEBRUARY 22, 1980 BASED UPON A CHARGE FILED ON
 OCTOBER 15, 1979.  CASE NO. 6-CA-380 WAS INSTITUTED BY THE ISSUANCE OF A
 COMPLAINT AND NOTICE OF HEARING DATED FEBRUARY 29, 1980 BASED UPON A
 CHARGE FILED ON DECEMBER 31, 1979.  AT THE TIME OF HEARING THESE CASES
 WERE CONSOLIDATED.  THE COMPLAINTS ALLEGE THAT RESPONDENT VIOLATED
 SECTION 7116(A)(1) AND (5) BY (A) UNILATERALLY INSTITUTING A REDUCTION
 IN FORCE IN THE TRANSPORTATION DEPARTMENT WITHOUT AFFORDING THE UNION AN
 OPPORTUNITY TO BARGAIN OVER ITS IMPACT AND IMPLEMENTATION AND (B)
 UNILATERALLY POSTING NOTICE OF AND RETROACTIVELY IMPLEMENTING CHANGES IN
 THREE JOB POSITIONS FROM PAYROLL CLERK TO CONTROL CLERK IN THE CIVILIAN
 PAY SECTION, WITHOUT AFFORDING THE UNION AN OPPORTUNITY TO BARGAIN OVER
 THE IMPACT AND IMPLEMENTATION OF THE CHANGE.  IN ADDITION, IN HIS POST
 HEARING BRIEF, COUNSEL FOR THE GENERAL COUNSEL URGES THAT A VIOLATION OF
 SECTION 7116(A)(1) AND (5) SHOULD BE FOUND BASED UPON RESPONDENT'S
 UNILATERAL CONTRACTING OUT OF CERTAIN FUNCTIONS WITHIN THE
 TRANSPORTATION DEPARTMENT WITHOUT AFFORDING THE UNION AN OPPORTUNITY TO
 BARGAIN OVER ITS IMPACT AND IMPLEMENTATION.  /6/
 
    AT THE HEARING IN SAN ANTONIO, TEXAS, ALL PARTIES WERE AFFORDED FULL
 OPPORTUNITY TO BE HEARD, ADDUCE EVIDENCE, EXAMINE AND CROSS-EXAMINE
 WITNESSES, AND ARGUE ORALLY.  THEREAFTER, RESPONDENT AND COUNSEL FOR
 GENERAL COUNSEL FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED.  TO THE
 EXTENT APPLICABLE, THE PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
 SUBMITTED BY THE PARTIES HAVE BEEN ADOPTED WITH APPROPRIATE
 MODIFICATION.  FURTHER, THE RESPONDENT'S MOTION TO CORRECT THE
 TRANSCRIPT HAS BEEN CAREFULLY REVIEWED AND IS HEREBY GRANTED.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, FROM MY
 OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE
 TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING, I MAKE THE FOLLOWING:
 
                             FINDINGS OF FACT
 
    1.  THE CHARGING PARTY HEREIN, AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2154, HEREINAFTER CALLED THE UNION, IS, AND
 HAS BEEN AT ALL MATERIAL TIMES HEREIN, A LABOR ORGANIZATION WITHIN THE
 MEANING OF 5 U.S.C. 7103(A)(4).
 
    2.  THE UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF THE ARMY,
 HEADQUARTERS, FORT SAM HOUSTON, TEXAS, HEREINAFTER CALLED RESPONDENT,
 IS, AND HAS BEEN AT ALL MATERIAL TIMES HEREIN, AN AGENCY WITHIN THE
 MEANING OF 5 U.S.C. 7103(A)(3).
 
    3.  AT ALL TIMES MATERIAL HEREIN THE FOLLOWING PERSONS HAVE OCCUPIED
 THE POSITIONS SET OPPOSITE THEIR NAMES, AND AT ALL TIMES MATERIAL HEREIN
 HAVE BEEN AND ARE NOW AGENTS OF RESPONDENT, ACTING ON ITS BEHALF, AND
 SUPERVISORS WITHIN THE MEANING OF 5 U.S.C.  7102(A)(10).
 
    H. B. BUCKLEY, JR.  CIVILIAN PERSONNEL OFFICER
 
    JOHN COERS LABOR RELATIONS SPECIALIST, CIVILIAN PERSONNEL OFFICE
 
    RANDY GIBSON STAFFING SPECIALIST, CIVILIAN PERSONNEL OFFICE
 
    PETRA SANCHEZ CHIEF, CIVILIAN PAY SECTION
 
    4.  AT ALL TIMES MATERIAL HEREIN, RESPONDENT RECOGNIZED THE UNION AS
 THE EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE OF THE FOLLOWING
 DESCRIBED UNIT:
 
    ALL FULL TIME, PERMANENT, APPROPRIATED FUND, GENERAL SCHEDULE AND
 WAGE GRADE AND
 
    NON-PROFESSIONAL EMPLOYEES UNDER THE COMMAND JURISDICTION OF THE
 COMMANDER, HEADQUARTERS, FORT
 
    SAM HOUSTON, FORT SAM HOUSTON, TEXAS, EXCLUDING PROFESSIONAL
 EMPLOYEES, ALL SUPERVISORY
 
    EMPLOYEES, FIREFIGHTERS AND FIRE PROTECTION EMPLOYEES, GUARDS,
 MANAGEMENT OFFICIALS, EMPLOYEES
 
    ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN IN A PURELY CLERICAL
 CAPACITY, ALL
 
    NON-APPROPRIATED FUND EMPLOYEES, AND ALL TEMPORARY AND ALL PART-TIME
 EMPLOYEES.
 
    5.  AT ALL TIMES MATERIAL HEREIN, RESPONDENT AND THE UNION HAVE BEEN
 PARTIES TO A COLLECTIVE BARGAINING AGREEMENT COVERING EMPLOYEES IN THE
 UNIT DESCRIBED IN PARAGRAPH 6 ABOVE.
 
                             CASE NO. 6-CA-298
 
    6.  ON JANUARY 31, 1979, RESPONDENT CONDUCTED A REGULARLY SCHEDULED
 LABOR-MANAGEMENT MEETING.  PRESENT AT THIS MEETING WERE AGENTS OF THE
 RESPONDENT AND REPRESENTATIVES OF THE FOUR LABOR ORGANIZATIONS WHICH
 WERE COLLECTIVE BARGAINING AGENTS FOR VARIOUS GROUPS OF RESPONDENT'S
 EMPLOYEES.  PRESENT FOR THE UNION WAS ADDIE VALEDEZ, ITS PRESIDENT.  THE
 PURPOSE OF THIS MEETING WAS TO INFORM THE VARIOUS LABOR ORGANIZATIONS OF
 MATTERS OF GENERAL INTEREST.  THIS MEETING WAS NOT FOR THE PURPOSE OF
 CONDUCTING ANY NEGOTIATIONS ON SPECIFIC MATTERS.  DURING THE MEETING
 RESPONDENT MENTIONED THAT A MORATORIUM HAD BEEN LIFTED AND THAT IT WOULD
 BEGIN CONSIDERATION OF CONTRACTING OUT OF VARIOUS FUNCTIONS.  THERE WAS
 NO DETAILED DISCUSSION CONCERNING ANY PROVISION FOR CONTRACTING OUT.
 THE MEETING LASTED APPROXIMATELY AND HOUR AND A HALF.  THERE WAS NO
 DISCUSSION OF ANY REDUCTION IN FORCE.
 
    7.  BY LETTER DATED FEBRUARY 5, 1979, RESPONDENT'S AGENT, H. B.
 BUCKLEY, SENT THE UNION A MEMORANDUM PURPORTING TO REPRESENT WHAT WAS
 DISCUSSED AT THE JANUARY 31, 1979, MEETING.  I CREDIT THE UNION
 PRESIDENT'S TESTIMONY THAT, IN FACT, THIS MEMORANDUM RECITED IN SPECIFIC
 DETAIL MATTERS WHICH WERE DISCUSSED ONLY IN A GENERAL WAY AT THE JANUARY
 31, 1979, MEETING.  AT THAT, THIS MEMORANDUM DID NOT STATE THAT ANY
 DEFINITE DECISION HAD BEEN MADE BUT, RATHER, INDICATED ONLY THAT
 RESPONDENT WOULD BEGIN "PRELIMINARY WORK FOR POSSIBLE CONTRACTING OUT"
 OF CERTAIN TRANSPORTATION FUNCTIONS.  IN ADDITION, IT INDICATED THE
 FURTHER POSSIBILITY OF CONTRACTING OUT FIVE OTHER AREAS, INCLUDING THE
 LAUNDRY, IN THE FUTURE.  HOWEVER, VALADEZ CREDIBLY TESTIFIED THAT THE
 LAUNDRY HAD BEEN UNDER CONSIDERATION FOR CONTRACTING OUT FOR AT LEAST
 FOUR YEARS.  THERE WAS NO MENTION IN THIS MEMORANDUM OF ANY REDUCTION IN
 FORCE.
 
    A.  FROM THE FOREGOING, I AM UNABLE TO CONCLUDE THAT RESPONDENT HAD
 YET MADE A DEFINITE DECISION TO CONTRACT OUT THE TRANSPORTATION
 FUNCTIONS;  BUT THE UNION NOW HAD INFORMATION THAT THIS WAS A
 POSSIBILITY, ESPECIALLY IN VIEW OF THE MEMORANDUM'S SPECIFICITY WITH
 RESPECT TO THE NUMBER OF BUS DRIVER POSITIONS INVOLVED;  I.E. 13
 INCLUDING A SUPERVISOR.
 
    8.  BETWEEN JANUARY AND JULY 23, 1979, RESPONDENT MADE NO CONTACT
 WITH THE UNION CONCERNING ANY FEASIBILITY STUDY OR ANY PLANS FOR
 CONTRACTING OUT WORK.  ACCORDING TO HAROLD BUCKLEY, RESPONDENT'S
 CIVILIAN PERSONNEL OFFICER, IT WAS SOMETIME DURING THIS PERIOD THAT THE
 PERSONNEL OFFICER RECEIVED A MANPOWER DOCUMENT FROM HIGHER
 HEADQUARTERS.
  THE DOCUMENT CONTAINED A YEAR-END MANPOWER CEILING;  I.E., A STAFFING
 FIGURE WHICH COULD NOT BE EXCEEDED AS OF SEPTEMBER 30, THE LAST DAY OF
 THE FISCAL YEAR.  THE MANPOWER DOCUMENT ALSO CONTAINS A LIST OF SPECIFIC
 JOB CATEGORIES AND GRADES.  AS OF JULY 25, THE 14 BUS DRIVER POSITIONS
 HAD ALREADY BEEN ELIMINATED FROM THE MANPOWER DOCUMENT.  WHETHER THEY
 HAD BEEN ELIMINATED BEFORE OR AFTER THE FEASIBILITY STUDY, WAS NOT KNOWN
 BY MR. BUCKLEY.  THERE WAS NO NOTIFICATION TO THE UNION OF THE REDUCTION
 IN CEILING OR OF ITS APPARENT IMPACT ON BUS DRIVERS.
 
    9.  ALSO BETWEEN JANUARY AND JULY 23, 1979, RESPONDENT MADE A
 DECISION TO INITIATE ITS CONTRACTING-OUT PROCEDURE AND TO SOLICIT BIDS
 FROM PRIVATE CONTRACTORS TO PERFORM WORK THEN BEING PERFORMED BY
 GOVERNMENT EMPLOYEES.  RESPONDENT ITSELF COULD ALSO SUBMIT A BID.
 NEITHER THE UNION NOR THE EMPLOYEES INVOLVED WERE INFORMED OF THIS
 DECISION.  PRECISELY WHEN ALL THIS WAS DONE WAS NOT KNOWN BY THE
 MANAGEMENT AGENTS WHO TESTIFIED AT THE HEARING.  ESSENTIALLY, THE
 WITNESSES WERE PERSONNEL SPECIALISTS WHO WERE NOT TOO FAMILIAR WITH THE
 PROCUREMENT PROCESS.
 
    10.  ON OR ABOUT JULY 10, 1979, RESPONDENT BEGAN TO PREPARE A
 RETENTION REGISTER FOR USE IN DETERMINING JOB RIGHTS IN THE EVENT OF A
 REDUCTION IN FORCE INVOLVING BUS DRIVERS.  THE UNION WAS NOT INFORMED OF
 THIS ACTION.
 
    11.  ON MONDAY, JULY 23, 1979, RESPONDENT'S AGENT, JOHN COERS, CALLED
 VALADEZ AND INFORMED HER THAT BIDS FOR THE CONTRACTING OUT WOULD BE
 OPENED ON JULY 25, 1979.  COERS ASKED IF MS. VALADEZ WISHED TO BE
 PRESENT.  MS. VALADEZ REPLIED THAT SHE WAS OPPOSED TO ANY CONTRACTING
 OUT AND THAT SHE DID NOT WANT TO ATTEND BECAUSE HER PRESENCE MIGHT
 APPEAR TO BE SUPPORT FOR RESPONDENT'S ACTIONS.
 
    ALTHOUGH RESPONDENT ITSELF HAD ALREADY TAKEN STEPS TO PREPARE FOR A
 "POSSIBLE" RIF, I CREDIT THE TESTIMONY OF VALADEZ THAT NO MENTION OF ANY
 REDUCTION IN FORCE WAS REVEALED BY COERS AT THIS TIME.  IN THIS REGARD I
 REJECT TESTIMONY BY COERS TO THE CONTRARY AND NOTE RESPONDENT'S POSITION
 AT THE HEARING AND THROUGH ITS OWN WITNESSES THAT A FINAL DECISION ON
 CONTRACTING OUT WAS NOT POSSIBLE UNTIL THE BIDS WERE OPENED AND
 THEREFORE ANY PRIOR NOTIFICATION OF A RIF WOULD BE PREMATURE.  I
 CONCLUDE THAT COERS, WHILE NOT AT LIBERTY TO TALK ABOUT A RIF, ASSUMED,
 THAT VALADEZ WAS CAPABLE OF PUTTING TWO AND TWO TOGETHER AND ARRIVING AT
 THE CONCLUSION THAT "POSSIBLE" CONTRACTING OUT COULD RESULT IN A
 "POSSIBLE" RIF, BUT THIS IS NOT THE SAME AS OFFICIAL NOTIFICATION THAT
 RESPONDENT WAS DEFINITELY CONTRACTING OUT, AND DEFINITELY INSTITUTING A
 RIF.
 
    12.  ON WEDNESDAY, JULY 25, THE BIDS WERE OPENED AND AN AWARD OF
 CONTRACT WAS MADE.  THUS, A PORTION OF THE BUS DRIVING WORK PERFORMED BY
 THE TRANSPORTATION DEPARTMENT WAS CONTRACTED OUT.  SPECIFICALLY, THE
 TRANSPORTATION DEPARTMENT PROVIDES BUS AND TAXI SERVICE FOR FORT SAM
 HOUSTON.  THE BUS SERVICE INVOLVED PROVIDING SHUTTLE BUS SERVICE AROUND
 THE BASE, SCHOOL BUS SERVICE, AND BUS SERVICE FOR ACADEMY STUDENTS.  THE
 CONTRACTING OUT WAS FOR TWELVE SCHOOL BUSES.  WHILE IT IS UNCLEAR
 WHETHER THIS WAS THE ENTIRE SCHOOL BUS FUNCTION, IT IS CLEAR THAT THE
 SHUTTLE BUS AND ACADEMY BUS SERVICE WAS NOT AFFECTED.
 
    13.  ON THURSDAY, JULY 26, COERS CALLED VALADEZ AND INFORMED HER FOR
 THE FIRST TIME THAT:  (A) A CONTRACT HAD BEEN AWARDED, AND WORK WAS
 BEING CONTRACTED OUT;  (B) THE BUS DRIVERS EFFECTED WERE GOING TO BE
 RIF'D;  AND (C) A MEETING WAS SCHEDULED FOR MONDAY, JULY 30 /7/ AT WHICH
 THE EMPLOYEES WOULD BE FURNISHED WITH LETTERS CONCERNING THE REDUCTION
 IN FORCE.  /8/ COERS INVITED VALADEZ TO SEND A REPRESENTATIVE TO THE
 MEETING AND SUGGESTED THAT IF SHE HAD ANY QUESTIONS CONCERNING THE RIF
 SHE SHOULD CONTACT RANDAL GIBSON, THE STAFFING SPECIALIST MOST FAMILIAR
 WITH RIF PROCEDURES.
 
    14.  ON MONDAY, JULY 30, INDIVIDUALIZED RIF LETTERS WERE GIVEN TO 7
 BUS DRIVERS AND 5 MOTOR POOL OPERATORS AT THE SCHEDULED MEETING.  /9/
 VALADEZ DID NOT ATTEND BUT WAS THEREAFTER INFORMED OF WHAT HAPPENED FROM
 THE EMPLOYEES.  THAT SAME WEEK SHE CONFRONTED H. B.  BUCKLEY WITH A
 DEMAND FOR BARGAINING.  BUCKLEY INDICATED THAT THERE WAS NOTHING HE
 COULD DO SINCE THE MATTER HAD BEEN ORDERED BY HIGHER HEADQUARTERS.
 RESPONDENT'S AGENT, RANDY GIBSON, RECONFIRMED THIS POSITION IN THE
 HEARING OF THIS MATTER WHEN HE NOTED (TR. 149) THAT RESPONDENT COULD NOT
 HAVE ALTERED ANY OFFICIAL ACTION TAKEN.
 
    15.  ARTICLE XXII, OF THE COLLECTIVE BARGAINING AGREEMENT (G.C.
 EXHIBIT NO. 4) STATES AS FOLLOWS, WITH RESPECT TO "CONTRACTING OUT":
 
    22-1.  THE EMPLOYER AND THE UNION AGREES THAT DECISIONS REGARDING THE
 CONTRACTING OUT OF
 
    WORK ARE AREAS WITHIN THE SOLE DISCRETION OF THE EMPLOYER AND HIGHER
 AUTHORITY.
 
    22-2.  IT WILL BE THE POLICY OF THE EMPLOYER TO CONSULT WITH THE
 UNION PRIOR TO CONTRACTING
 
    OUT WORK INVOLVING THE UNIT OF RECOGNITION IN THOSE INSTANCES WHERE
 THE CONTRACTING OUT OF
 
    WORK IS WITHIN THE DISCRETION OF THE EMPLOYER.  WHEN IT BECOMES KNOWN
 THAT CONTRACTING OUT OF
 
    WORK INVOLVING THE UNIT OF RECOGNITION IS ORDERED BY HIGHER
 HEADQUARTERS, THE UNION WILL BE
 
    INFORMED.
 
    22-3.  THIS DOES NOT INCLUDE THE PARTIES FROM NEGOTIATING AGREEMENTS
 PROVIDING APPROPRIATE
 
    ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE IMPACT OF
 REALIGNMENT OF WORK FORCES OR
 
    TECHNOLOGICAL CHANGE.
 
                             CASE NO. 6-CA-380
 
    16.  AS OF APRIL 1979 AND CONTINUING THROUGH NOVEMBER 1979, PAYROLL
 CLERKS EMPLOYED IN ITS CIVILIAN PAY OFFICE PROCESSED PAYROLL ACTIONS,
 KEPT TIME CARDS AND COMPLETED VARIOUS PAYROLL REPORTS.  IN ADDITION, IT
 WAS PART OF THE PAYROLL CLERK'S DUTIES TO PERFORM AUDITING FUNCTIONS.
 SPECIFICALLY, EVERY 3 TO 4 PAY PERIODS A GROUP OF THREE PAYROLL CLERKS
 WOULD BE ASSIGNED TO AUDIT THE WORK OF OTHER PAYROLL CLERKS.  THIS
 AUDITING DUTY HAD BEEN PERFORMED FOR 3 TO 4 YEARS ON A ROTATING BASIS.
 
    17.  FROM THE TESTIMONY OF MRS. MARY QUINN, POSITION CLASSIFICATION
 SPECIALIST, IT APPEARS THAT AGENCY MANAGEMENT, AT SOMETIME PRIOR TO
 APRIL 1979, MADE A DECISION TO REMOVE THE AUDITING DUTIES FROM THE
 EXISTING PAYROLL CLERK JOB DESCRIPTION AND TO ESTABLISH A NEW POSITION.
 MRS. QUINN WAS CALLED IN TO ASSIST IN PREPARING THE NEW POSITION
 DESCRIPTION.  AS PART OF HER ANNUAL JOB AUDIT, SHE ALSO EXAMINED THE
 PAYROLL CLERKS' DUTIES FROM THE STANDPOINT OF ACCOMPLISHING WHAT
 MANAGEMENT HAD REQUESTED (TR. 209).  SHE COMPLETED THE NEW DESCRIPTIONS
 IN MAY.  ESSENTIALLY, THE "CONTROL TYPE DUTIES" WERE REMOVED FROM THE
 EXISTING DESCRIPTION (TR. 210, 198).  OFFICIALLY, THE NEW POSITION WAS
 PAYROLL CLERK.  HOWEVER, THE 2 PAYROLL CLERKS WHO TESTIFIED AT THE
 HEARING. REFERRED TO THE POSITIONS AS "CONTROL CLERKS," AS DID ALSO
 MANAGEMENT IN ITS NOVEMBER 21, 1979 NOTICE TO ALL PAYROLL PERSONNEL
 (G.C. EXH. NO. 5).  THE UNION WAS NOT NOTIFIED ABOUT THE NEW POSITION OR
 THE DELETION OF DUTIES IN THE EXISTING POSITION.
 
    IN PARAGRAPH NO. 2 OF THE OLD POSITION DESCRIPTION, THE FOLLOWING WAS
 ELIMINATED:
 
    "EXAMINES, AUDITS, AND VERIFIES ACCURACY, PROPRIETY, AND COMPLETENESS
 OF TIME, LEAVE AND
 
    PAYROLL RECORDS, PREPARED BY OTHER CLERKS IN THE SAME OR LOWER
 GRADES;"
 
    PARAGRAPH NO. 4 OF THE OLD POSITION DESCRIPTION WAS ELIMINATED IN ITS
 ENTIRETY:
 
    "ON AN INTERMITTENT BASIS, ASSIGNS WORK TO, TRAINS, AND REVIEWS THE
 WORK OF OTHER TIME,
 
    LEAVE, AND PAYROLL CLERKS, OF THE SAME OR LOWER GRADE."
 
    A NEW PARAGRAPH NO. 4 WAS ADDED AS FOLLOWS:
 
    "TYPES MISCELLANEOUS FORMS PERTINENT TO COMPLETING PAYROLLS.  TYPING
 DOES NOT REQUIRE SKILL
 
    EQUAL TO THAT REQUIRED BY COMPETITIVE EXAMINATION."
 
    18.  THE NEW POSITIONS WERE NOT IMPLEMENTED IMMEDIATELY BECAUSE THE
 SUPERVISORS REQUESTED A DELAY IN ORDER TO GIVE ALL THE PAYROLL CLERKS A
 CHANCE TO ROTATE THROUGH THAT TYPE OF POSITION AND RECEIVE TRAINING IN
 PERFORMING THOSE DUTIES.  LABOR RELATIONS OFFICER JOHN COERS WAS AWARE
 OF THE CHANGES BUT THE UNION WAS NOT NOTIFIED.
 
    19.  ON THE AFTERNOON OF NOVEMBER 21, 1979, CIVILIAN PAYROLL SECTION
 SUPERVISOR SANCHEZ INFORMED THE PAYROLL CLERKS OF THE CHANGES.  MS.
 VALADEZ APPARENTLY WAS AT HOME AND WAS CALLED BY SANCHEZ AROUND 4:40
 P.M.  SHE TOLD VALADEZ THAT SHE WAS ABOLISHING 3 PAYROLL CLERK POSITIONS
 AND CREATING 3 AUDITING CLERK POSITIONS, THAT SHE HAD ALREADY SELECTED
 FOR THOSE POSITIONS, AND THAT SHE HAD BEEN TOLD BY CIVILIAN PERSONNEL
 SHE HAD AUTHORITY TO DO THIS.  FURTHER, VALADEZ QUOTED SANCHEZ AS SAYING
 "I WAS ALSO TOLD THAT I DID NOT HAVE TO LET THE UNION KNOW.  I AM ONLY
 NOTIFYING YOU BECAUSE-- BECAUSE YOU WORK HERE." THE FOREGOING IS
 UNDENIED;  SANCHEZ DID NOT TESTIFY.  RESPONDENT'S WRITTEN NOTIFICATION
 DATED NOVEMBER 21 (G.C. EXH. NO. 5) ADVISING EMPLOYEES OF THE FOREGOING
 AND IDENTIFYING THE THREE EMPLOYEES SELECTED WAS SHOWN TO EMPLOYEES ON
 NOVEMBER 21 AND A COPY MAILED TO VALADEZ.
 
    20.  DAVID NIXON, STAFFING SPECIALIST, TESTIFIED THAT THE REASON THE
 NEW JOB OF CONTROL CLERK WAS NOT POSTED IS BECAUSE THE CONCLUSION WAS
 FIRST MADE THAT THERE WAS NO SUBSTANTIAL CHANGE OF DUTIES, NO
 REEVALUATION OF QUALIFICATIONS REQUIRED, NO CHANGE OF TITLE, SERIES,
 GRADE, OR JOB DESCRIPTION NUMBER, AND NO KNOWN PROMOTION POTENTIAL
 INVOLVED.  ACCORDINGLY, IT WAS CONCLUDED THAT THE REASSIGNMENT PROCEDURE
 COULD BE UTILIZED.
 
    21.  MS. MARY QUINN TESTIFIED THAT IF THE DUTIES AND RESPONSIBILITIES
 REMOVED FROM A JOB WERE "SIGNIFICANT" IT COULD RESULT AND HAS RESULTED
 IN DEMOTION TO A LOWER GRADE (TR. 215).  A DEMOTION ALSO COULD HAVE
 OCCURRED IF THE AUDITING AND CONTROL-TYPE DUTIES PLACED IN THE NEW JOB
 DESCRIPTION WERE DEEMED TO BE "LEAD OR SUPERVISORY IN NATURE" (TR. 202).
  NEITHER OF THESE DETERMINATIONS WERE MADE IN THIS CASE SO THE GRADE
 LEVEL WAS NOT CHANGED.
 
    22.  PAYROLL CLERKS VALADEZ AND LORENZA JONES BOTH EXPRESSED CONCERN
 THAT THE REMOVAL OF DUTIES MIGHT RESULT IN THEIR DOWNGRADING.  WHILE
 CONCEDING THAT NO MANAGEMENT OFFICIAL HAD EVER SAID THEY WOULD BE
 DOWNGRADED, THEY HAD RECEIVED NO ASSURANCES TO THE CONTRARY.  THE
 NOVEMBER 21 NOTICE TO EMPLOYEES WAS SILENT WITH RESPECT TO THE
 POSSIBILITY OR NOT OF DOWNGRADING.  ACCORDING TO THE UNCONTRADICTED
 TESTIMONY OF VALADEZ (TR. 175) SHE WAS GIVEN TO UNDERSTAND THAT THE
 AUDITING DUTIES WERE A PRIMARY REASON FOR JUSTIFICATION OF THE GS-5
 GRADE.
 
                     DISCUSSION AND CONCLUSIONS OF LAW
 
    A.  CASE NO. 6-CA-298
 
    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 THE RIF DECISION WAS PROVIDED TO VALADEZ, THE UNION
 PRESIDENT, AND THAT THE LATTER FAILED TO REQUEST NEGOTIATIONS PRIOR TO
 IMPLEMENTATION OF THE DECISION TO INSTITUTE A RIF.  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).  IT HAS ALSO BEEN HELD THAT AN 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.
 
    I HAVE FOUND THAT THE FIRST NOTIFICATION OF A REDUCTION IN FORCE
 OCCURRED ON JULY 26, 1979 WHEN COERS CALLED VALADEZ TO TELL HER THE
 OPENING OF BIDS ON THE PREVIOUS DAY HAD RESULTED IN A DECISION TO
 CONTRACT OUT WORK AND A DECISION TO INSTITUTE A REDUCTION IN FORCE.  I
 CONCLUDE THAT RESPONDENT PRESENTED THE UNION WITH A FAIT ACCOMPLI AND
 THAT SUCH NOTIFICATION WAS INADEQUATE.  ACCORDINGLY, RESPONDENT VIOLATED
 SECTION 7116(A)(5) AND (1) OF THE STATUTE.
 
    I REJECT RESPONDENT'S CONTENTION THAT THE UNION WAS PROVIDED WITH
 NOTICE OF A RIF PRIOR TO JULY 26.  AT BEST, THE FEBRUARY 5 MEMORANDUM TO
 ALL UNIONS WHO ATTENDED THE JANUARY 31 MEETING, MERELY STATED THAT A
 STUDY WOULD BE CONDUCTED TO DETERMINE THE FEASIBILITY OF CONTRACTING OUT
 CERTAIN TRANSPORTATION FUNCTIONS.  AS POINTED OUT BY RESPONDENT, THE NEW
 PROCEDURES NOW PERMITTED AN AGENCY TO ALSO SUBMIT A BID.  ACCORDINGLY,
 NO FINAL DECISION COULD BE MADE UNTIL THE BIDS WERE OPENED.  I ALSO
 REJECT RESPONDENT'S ARGUMENT THAT CONTRACTING OUT ALWAYS LEADS TO A RIF
 AND THAT, THEREFORE, NOTIFICATION OF POSSIBLE CONTRACTING OUT WAS
 TANTAMOUNT TO NOTIFICATION OF A POSSIBLE RIF.  IF RESPONDENT REALLY
 THOUGHT THIS TO BE THE CASE, TI COULD HAVE AND, INDEED, SHOULD HAVE
 FORMALLY AND SPECIFICALLY NOTIFIED THE UNION OF THE POSSIBLE RIF WHEN IT
 INITIATED THE PROCEDURE TO SOLICIT BIDS SOMETIME IN THE SPRING OF 1979.
 IF THE RESPONDENT REALLY WAS CONCERNED WITH ITS STATUTORY OBLIGATION TO
 PROVIDE THE UNION WITH ADEQUATE NOTICE OF AN IMPENDING RIF, IT WOULD
 HAVE AND, INDEED, SHOULD HAVE NOTIFIED THE UNION IN EARLY JULY WHEN
 RESPONDENT ITSELF WAS ASSEMBLING THE RETENTION REGISTER FOR THE RIF.
 
    ASSUMING, ARGUENDO, THAT RESPONDENT REALLY DID NOT KNOW WHAT THE
 OUTCOME WOULD BE UNTIL THE BIDS WERE ACTUALLY OPENED, IT DID KNOW THAT
 TIME WAS OF THE ESSENCE AND THAT IF A RIF WERE INSTITUTED IT HAD TO BE
 (1) PROCEDURALLY VALID ACCORDING TO RIF REGULATIONS, AND (2) IT HAD TO
 ACCOMPLISH THE OBJECTIVE OF REMOVING THE AFFECTED EMPLOYEES FROM THE
 PAYROLL BEFORE THE END OF THE FISCAL YEAR.  FROM THE TESTIMONY OF
 RESPONDENT'S WITNESSES (TR. 116, 121, 124, 161) IT IS QUITE CLEAR THAT
 THE REQUIREMENT OF 60 DAYS NOTICE LOOMED LARGE IN THE DECISION TO START
 ASSEMBLING A RETENTION REGISTER IN EARLY JULY RATHER THAN WAITING UNTIL
 THE BIDS WERE SUBSEQUENTLY OPENED.  RESPONDENT'S KNOWLEDGE THAT TIME WAS
 OF THE ESSENCE AND ITS CONCERN FOR COMPLIANCE WITH RIF REGULATIONS WERE
 NOT ACCOMPANIED BY ANY CORRESPONDING CONCERN FOR THE EMPLOYEES INVOLVED
 OR ITS COLLECTIVE BARGAINING OBLIGATION TO THE UNION.  INSTEAD,
 RESPONDENT PROCEEDED IN SECRECY TO PREPARE FOR A RIF EVEN BEFORE THE
 DECISION TO INSTITUTE A RIF WAS ALLEGEDLY MADE.
 
    NOTWITHSTANDING THE RECEIPT OF INADEQUATE NOTICE, THE UNION THROUGH
 ITS PRESIDENT REQUESTED BARGAINING ONLY TO BE MET WITH THE REPLY THAT
 NOTHING COULD BE DONE BECAUSE HIGHER HEADQUARTERS MADE THE DECISION.  IT
 IS NO WONDER THAT CIVILIAN PERSONNEL OFFICER BUCKLEY RESPONDED AS HE
 DID.  FROM HIS TESTIMONY AND THAT OF COERS AND GIBSON, IT IS QUITE CLEAR
 THAT THEY REGARDED THEMSELVES ONLY AS PERSONNEL TECHNICIANS WHO CARRY
 OUT MANAGEMENT DECISIONS MADE ELSEWHERE IN THE HIERARCHY.  GIVEN THE
 FACT THAT PRIOR TO THE OPENING OF BIDS, THE PERSONNEL OFFICE HAD ALREADY
 RECEIVED A MANPOWER DOCUMENT ELIMINATING 14 BUS DRIVER POSITIONS (TR.
 124, 125), I CAN READILY UNDERSTAND WHY MR. BUCKLEY WOULD TELL MS.
 VALADEZ THAT "THERE WAS NOTHING REALLY, HE COULD DO ABOUT IT, THAT HE
 WAS PURELY ACTING ON ORDERS FROM HIGHER HEADQUARTERS." (TR. 22).
 ACCORDINGLY, I CONCLUDE THAT EVEN AFTER GIVING THE UNION INADEQUATE
 NOTICE OF THE RIF, RESPONDENT REFUSED TO BARGAIN UPON REQUEST.  I
 THEREFORE CONCLUDE THAT RESPONDENT REFUSED TO BARGAIN IN VIOLATION OF
 7116(A)(5) /10/ OF THE STATUTE AND, BY THE SAME CONDUCT, ALSO VIOLATED
 SECTION 7116(A)(1).  /11/
 
    B.  CASE NO. 6-CA-380
 
    AS IN THE CASE OF THE REDUCTION IN FORCE, IT HAS LONG BEEN
 ESTABLISHED, EVEN UNDER THE EXECUTIVE ORDER, THAT THERE EXISTS AN
 OBLIGATION TO BARGAIN OVER THE IMPACT AND IMPLEMENTATION OF ANY CHANGES
 IN JOB DUTIES.  /12/ THE INSTANT CASE REVEALS THAT RESPONDENT HAD
 DECIDED PRIOR TO APRIL, 1979, TO REMOVE AUDITING FUNCTIONS FROM PAYROLL
 CLERK DUTIES AND ESTABLISH 3 CONTROL CLERK POSITIONS.  THIS DECISION HAD
 AN IMPACT ON THE EMPLOYEES INVOLVED.  RATHER THAN NOTIFYING THE UNION
 AND AFFORDING THEM AN OPPORTUNITY TO BARGAIN CONCERNING THE IMPACT AND
 IMPLEMENTATION OF SAID PROCEDURES, RESPONDENT UNILATERALLY INSTITUTED
 THE CHANGES.  THUS, THE SAME RESPONDENT WHICH PRESENTED THE UNION WITH A
 FAIT ACCOMPLI AS TO THE REDUCTION IN FORCE, REPEATED ITS CONDUCT WITH
 RESPECT TO THE REMOVAL OF DUTIES FROM THE JOB DESCRIPTION OF THE PAYROLL
 CLERKS.
 
    RESPONDENT'S DEFENSE RESTS COMPLETELY ON ITS RELIANCE ON THE
 SO-CALLED EXPERT TESTIMONY OF ITS OWN POSITION CLASSIFIER, MRS. MARY
 QUINN.  IT MAY VERY WELL BE THAT MS. QUINN IS AN EXPERT IN HER OWN
 FIELD, I.E. RENDERING ADVICE TO MANAG8EMENT CONCERNING PERSONNEL-TYPE
 PROBLEMS, ESPECIALLY JOB CLASSIFICATION.  BUT SHE ALSO WORKS FOR
 MANAGEMENT, AS THE EVIDENCE HERE INDICATES, AND HER JOB IS NOT ONLY TO
 RENDER TECHNICAL ADVICE ON WHAT IS AND IS NOT REQUIRED BY OPM AND AGENCY
 REGULATIONS, BUT SHE ALSO IS ABLE TO ADVICE HOW THESE REGULATIONS MAY BE
 UTILIZED TO ACCOMPLISH MANAGEMENT OBJECTIVES.  FOR EXAMPLE, IN THIS
 CASE, HER OPINION THAT THE CHANGE OF DUTIES WAS NOT "SIGNIFICANT"
 PERMITTED RESPONDENT TO USE THE REASSIGNMENT PROCEDURE AND AVOID POSTING
 THE JOB.  I AM NOT SUGGESTING THAT THIS MANAGEMENT DECISION WAS
 ILL-ADVISED OR MOTIVATED BY ANTI-UNION ANIMUS.  BUT JUST BECAUSE
 RESPONDENT'S CLASSIFIER MADE A DETERMINATION THAT A CHANGE OF DUTIES IS
 "INSIGNIFICANT" AND THAT THERE WAS NO ADVERSE IMPACT ON THE EMPLOYEES,
 FOR PURPOSES OF CONFORMING TO APPLICABLE PERSONNEL REGULATIONS, IT DOES
 NOT FOLLOW THAT THE FEDERAL LABOR RELATIONS AUTHORITY SHOULD READ THE
 SAME CONCLUSION IN APPLYING THE PROVISIONS OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE, TO THE SAME SET OF FACTS.
 
    IN MY OPINION, THE CHANGE OF DUTIES WAS INDEED SIGNIFICANT AND
 SUBSTANTIAL AND NOT ONLY COULD, BUT IN FACT WAS, PERCEIVED BY EMPLOYEES
 AS THREATENING THEIR GRADE.  EVEN MS. QUINN CONCEDES THAT THE JOBS WOULD
 BE DOWNGRADED TO A GS-4 IF THE NEW CONTROL CLERK POSITIONS WERE
 DETERMINED TO BE "LEAD OR SUPERVISORY IN NATURE." ALTHOUGH THE AUDITING
 DUTIES ELIMINATED WERE ONLY PERFORMED INTERMITTENTLY, THEY WERE QUITE
 RESPONSIBLE AND ARGUABLY OF A SUPERVISORY CHARACTER.  THEY ARE THE KIND
 OF SUBSTANTIAL AND RESPONSIBLE DUTIES WHICH COULD BE GRADE DETERMINING,
 DEPENDING UPON THE CIRCUMSTANCES.  ACCORDING TO MS. QUINN, SHE CONCLUDED
 THAT THESE DUTIES WERE NOT GRADE DETERMINATIVE.  ANOTHER CLASSIFIER
 COULD, IN MY OPINION, REACH A DIFFERENT CONCLUSION.  NEVERTHELESS, THE
 ELIMINATION OF SUCH RESPONSIBLE DUTIES AT THE SAME TIME THAT TYPING
 DUTIES NOT REQUIRING "COMPETITIVE EXAMINATION" ARE ADDED TO THE POSITION
 DESCRIPTION, WOULD HARDLY CAUSE A PAYROLL CLERK TO REASONABLY BELIEVE
 HIS OR HER JOB HAD NOT BEEN CHANGED SUBSTANTIALLY.  THIS IS ESPECIALLY
 TRUE WHEN ONE CONSIDERS WHICH JOB OFFERS THE BETTER OPPORTUNITY FOR
 ADVANCEMENT, NOT JUST IN THIS OFFICE, BUT ELSEWHERE IN THE AGENCY AND
 THE GOVERNMENT.
 
    WHEN SUPERVISOR PEREZ INFORMED THE UNION PRESIDENT OF RESPONDENT'S
 IMPLEMENTATION OF ITS DECISION TO REMOVE DUTIES FROM ONE JOB AND
 ESTABLISH THE NEW CONTROL CLERK POSITION, SHE WENT OUT OF HER WAY TO LET
 THE UNION KNOW PRECISELY HOW UNIMPORTANT AND POWERLESS IT WAS.  SHE TOLD
 VALADEZ THAT, ACCORDING TO THE CIVILIAN PERSONNEL OFFICE SHE HAD
 AUTHORITY TO DO WHAT SHE DID AND "DID NOT HAVE TO LET THE UNION KNOW."
 SHE CONCLUDED BY SAYING:  "I AM ONLY NOTIFYING YOU BECAUSE-- BECAUSE YOU
 WORK HERE." AS FAR AS I'M CONCERNED SHE RECEIVED THE WRONG ADVICE.
 
    I FIND AND CONCLUDE THAT RESPONDENT FAILED TO FULFILL ITS OBLIGATION
 TO NOTIFY THE UNION ABOUT ITS DECISION TO TAKE AWAY DUTIES FROM THE
 PAYROLL CLERKS SO THAT THE UNION COULD MAKE A TIMELY REQUEST TO BARGAIN
 ABOUT IMPACT AND IMPLEMENTATION.  THUS, RESPONDENT VIOLATED SECTION
 7116(A)(5) AND (1) OF THE STATUTE BY THIS CONDUCT.
 
                                  REMEDY
 
    THERE IS NO DISPUTE THAT RESPONDENT HAD A RESERVED MANAGEMENT RIGHT
 UNDER THE STATUTE (1) TO MAKE THE DECISION TO HAVE A REDUCTION IN FORCE,
 AND (2) TO MAKE THE DECISION TO REASSIGN DUTIES AND ESTABLISH NEW
 POSITION DESCRIPTIONS.  BUT, AS NOTED ABOVE, RESPONDENT FAILED TO
 FULFILL ITS STATUTORY OBLIGATION TO GIVE ADEQUATE NOTICE OF ITS DECISION
 AND REASONABLE OPPORTUNITY TO THE UNION TO BARGAIN ABOUT THE IMPACT AND
 IMPLEMENTATION OF SUCH DECISIONS.
 
    IT IS WELL ESTABLISHED UNDER DECISIONS OF THE ASSISTANT SECRETARY
 THAT A STATUS QUO ANTE REMEDY BASED ON THE FAILURE TO NEGOTIATE THE
 IMPACT AND IMPLEMENTATION OF SUCH DECISIONS WOULD NOT BE WARRANTED.
 /13/ HOWEVER, IT IS QUITE CLEAR THAT THE RESPONDENT SHOULD AT LEAST BE
 ORDERED TO BARGAIN UPON REQUEST CONCERNING IMPACT AND IMPLEMENTATION OF
 THE DECISIONS.
 
    IN ITS BRIEF, COUNSEL FOR THE GENERAL COUNSEL MAKES AN IMPASSIONED
 PLEA TO DISREGARD DECISIONS BY THE ASSISTANT SECRETARY UNDER THE
 EXECUTIVE ORDER AND, INSTEAD, TO FASHION REMEDIES WHICH ARE MORE
 MEANINGFUL AND EFFECTIVE, AND WHICH AMOUNT TO SOMETHING MORE THAN JUST A
 SLAP AT THE WRIST.  IN THIS REGARD, COUNSEL POINTS OUT THAT THE
 AUTHORITY MAY ISSUE DECISIONS PURSUANT TO THE STATUTE OVERRULING AND
 SUPERSEDING PRIOR DECISIONS BY THE FEDERAL LABOR RELATIONS COUNCIL AND
 THE ASSISTANT SECRETARY UNDER EXECUTIVE ORDER 11491, AS AMENDED.
 
    HOWEVER, AS RECENTLY AS JUNE 3, 1980, THE AUTHORITY HAD AN
 OPPORTUNITY TO SPEAK ON THE SUBJECT OF STATUS QUO ANTE REMEDIES IN A
 REDUCTION IN FORCE SITUATION AND DID SO.  IN THE ADJUTANT GENERAL'S
 OFFICE, PUERTO RICO AIR NATIONAL GUARD, 3 FLRA NO. 55, THE AUTHORITY
 CONCLUDED THAT A REMEDIAL ORDER REQUIRING RESCISSION OF RESPONDENT'S
 ACTION IN CONDUCTING A RIF PURSUANT TO A NEW REGULATION WAS NOT
 WARRANTED.  THUS, IT REJECTED THE JUDGE'S RECOMMENDATION FOR A STATUS
 QUO ANTE REMEDY.
 
    AS AN ADMINISTRATIVE LAW JUDGE, I AM CONSTRAINED TO FOLLOW CASE
 PRECEDENT AND THE AUTHORITY'S RULING IN THE FOREGOING CASE IS QUITE
 CLEAR TO ME, AT LEAST WITH RESPECT TO THE RIF IN CASE NO. 6-CA-298.
 INSOFAR AS THE CHANGE OF DUTIES IN CASE NO. 6-CA-380 IS CONCERNED, I
 BELIEVE IT WOULD BE LESS DISRUPTIVE, IF THIS VIOLATION WERE ALSO
 REMEDIED WITH AN ORDER SIMPLY REQUIRING BARGAINING UPON REQUEST ABOUT
 IMPACT AND IMPLEMENTATION.  SECRETARY OF NAVY, PENTAGON, 7 A/SLMR 932.
 
    ACCORDINGLY, HAVING FOUND RESPONDENT IN VIOLATION OF 5 U.S.C.
 7116(A)(1) AND (5) OF THE STATUTE, I RECOMMEND THAT THE FEDERAL LABOR
 RELATIONS AUTHORITY ADOPT THE FOLLOWING ORDER WHICH IS DESIGNED TO
 EFFECTUATE THE PURPOSES AND POLICIES OF FEDERAL SERVICES LABOR
 MANAGEMENT STATUTE:
 
                                   ORDER
 
    PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
 FEDERAL LABOR RELATIONS AUTHORITY AND 5 U.S.C. 7135, THE AUTHORITY
 HEREBY ORDERS THAT UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF
 THE ARMY, HEADQUARTERS, FORT SAM HOUSTON, TEXAS, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) UNILATERALLY INSTITUTING A REDUCTION IN FORCE WITHOUT AFFORDING
 THE UNION AN
 
    OPPORTUNITY TO BARGAIN OVER THE IMPACT AND IMPLEMENTATION OF SAID
 DECISION.
 
    (B) UNILATERALLY CHANGING TERMS AND CONDITIONS OF EMPLOYMENT BY
 ALTERING THE DUTIES OF
 
    PAYROLL CLERKS AND ESTABLISHING CONTROL CLERKS POSITIONS WITHOUT
 AFFORDING THE UNION AN
 
    OPPORTUNITY TO BARGAIN CONCERNING THE IMPACT AND IMPLEMENTATION OF
 SAID CHANGES.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) NOTIFY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 2154, OR ANY OTHER
 
    EXCLUSIVE REPRESENTATIVE OF ANY INTENDED REDUCTION IN FORCE, AND,
 UPON REQUEST, BARGAIN IN
 
    GOOD FAITH ON THE IMPACT AND IMPLEMENTATION OF SUCH ACTION.
 
    (B) NOTIFY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 2154, OR ANY OTHER
 
    EXCLUSIVE REPRESENTATIVE, OF ANY INTENDED CHANGES IN THE DUTIES OF
 EMPLOYEES AND, UPON
 
    REQUEST, BARGAIN IN GOOD FAITH ON THE IMPACT AND IMPLEMENTATION OF
 SAID CHANGES.
 
    (C) PRESERVE AND, UPON REQUEST, MAKE AVAILABLE TO THE FEDERAL LABOR
 RELATIONS AUTHORITY FOR
 
    EXAMINATION AND COPYING, ALL RECORDS NECESSARY TO ASCERTAIN
 COMPLIANCE WITH THIS ORDER.
 
    (D) POST AT ALL FORT SAM HOUSTON, TEXAS, FACILITIES AND INSTALLATIONS
 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
 RESPONDENT AND SHALL BE POSTED
 
    AND MAINTAINED FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
 PLACES, INCLUDING ALL
 
    BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
 CUSTOMARILY
 
    POSTED.  RESPONDENT SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
 NOTICES ARE NOT ALTERED,
 
    DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (E) NOTIFY THE REGIONAL DIRECTOR OF REGION VI OF 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.
 
                        FRANCIS E. DOWD
                        ADMINISTRATIVE LAW JUDGE
 
    DATED:  OCTOBER 17, 1980
    WASHINGTON, D.C.
 
 
 
        APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND
 
           ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN
 
          ORDER TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
 
                    LABOR-MANAGEMENT RELATIONS STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT UNILATERALLY INSTITUTE A REDUCTION IN FORCE WITHOUT
 AFFORDING AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 2154 OR ANY OTHER EXCLUSIVE REPRESENTATIVE, ADEQUATE NOTICE AND A
 REASONABLE OPPORTUNITY TO BARGAIN OVER IMPLEMENTATION OF SAID DECISION
 AND THE IMPACT ON ADVERSELY AFFECTED EMPLOYEES.
 
    WE WILL NOT UNILATERALLY CHANGE TERMS AND CONDITIONS OF EMPLOYMENT BY
 ALTERING EMPLOYEES' JOB DUTIES WITHOUT AFFORDING AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2154, OR ANY OTHER EXCLUSIVE
 REPRESENTATIVE, ADEQUATE NOTICE AND A REASONABLE OPPORTUNITY TO BARGAIN
 OVER THE IMPLEMENTATION OF SAID DECISION AND THE IMPACT ON ADVERSELY
 AFFECTED EMPLOYEES.
 
    WE WILL NOTIFY AND, UPON REQUEST, BARGAIN IN GOOD FAITH WITH AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2154, TO THE EXTENT
 CONSONANT WITH LAW AND REGULATION, CONCERNING THE IMPACT ON EMPLOYEES OF
 THE REDUCTION IN FORCE IN THE TRANSPORTATION DEPARTMENT AND THE REMOVAL
 OF JOB DUTIES FROM PAYROLL CLERKS.
 
    WE WILL NOT IN ANY MANNER INTERFERE WITH, RESTRAIN OR COERCE OUR
 EMPLOYEES IN THE EXERCISE OF RIGHTS GUARANTEED BY THE FEDERAL SERVICES
 LABOR-MANAGEMENT RELATIONS STATUTE.
 
    DATED:  BY:
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
 ADDRESS IS:  OLD POST OFFICE STATION, P. O. BOX 2640, DALLAS, TX 75221.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE RESPONDENT'S OPPOSITION TO THE GENERAL COUNSEL'S EXCEPTIONS
 IS UNTIMELY AND WAS NOT CONSIDERED BY THE AUTHORITY.
 
    /2/ THE RESPONDENT EXCEPTED TO CERTAIN CREDIBILITY FINDINGS MADE BY
 THE JUDGE.  THE DEMEANOR OF WITNESSES IS A FACTOR OF CONSEQUENCE IN
 RESOLVING ISSUES OF CREDIBILITY, AND THE JUDGE HAS HAD THE ADVANTAGE OF
 OBSERVING THE WITNESSES WHILE THEY TESTIFIED.  THE AUTHORITY WILL NOT
 OVERRULE A JUDGE'S RESOLUTION WITH RESPECT TO CREDIBILITY UNLESS A CLEAR
 PREPONDERANCE OF ALL THE RELEVANT EVIDENCE DEMONSTRATES THAT SUCH
 RESOLUTION WAS INCORRECT.  THE AUTHORITY HAS EXAMINED THE RECORD
 CAREFULLY, AND FINDS NO BASIS FOR REVERSING THE JUDGE'S CREDIBILITY
 FINDINGS.
 
    /3/ THE AUTHORITY NOTES THAT THE DECISION TO CONDUCT A RIF IS A RIGHT
 RESERVED EXCLUSIVELY TO MANAGEMENT UNDER SECTION 7106(A)(2)(A) OF THE
 STATUTE.  SEE, E.G., NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
 1167 AND DEPARTMENT OF THE AIR FORCE, HEADQUARTERS, 31ST COMBAT SUPPORT
 GROUP (TAC), HOMESTEAD AIR FORCE BASE, FLORIDA, 6 FLRA NO. 105(1981),
 PROPOSAL 4.  SEE ALSO INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
 AFL-CIO, LOCAL 121 AND U. S.  GOVERNMENT PRINTING OFFICE, WASHINGTON,
 D.C. 8 FLRA NO. 35(1982).
 
    /4/ SECTION 7106(B)(2) AND (3) OF THE STATUTE PROVIDES:
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY
 
    AUTHORITY UNDER THIS SECTION;  OR
 
    (3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
 EXERCISE OF ANY
 
    AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
 
    /5/ SEE, FEDERAL CORRECTIONAL INSTITUTION, 8 FLRA NO. 111(1982).
 
    /6/ IN THE GENERAL COUNSEL'S OPENING STATEMENT AT THE HEARING IT WAS
 MADE QUITE CLEAR THAT CONTRACTING OUT WAS NOT AT ISSUE.  (TR. 14).
 THEREAFTER, COUNSEL OBJECTED ON THE GROUNDS OF MATERIALITY TO QUESTIONS
 BY RESPONDENT CONCERNING CONTRACTING OUT AND STATED AS FOLLOWS:  "WE
 HAVE NOT ALLEGED THE UNILATERAL CHANGES BY INSTITUTING THE CONTRACTING
 OUT.  IT IS OUR POSITION THAT THEY ARE TWO SEPARATE INSTANCES, AND THE
 CONTRACTING OUT HAS NO RELEVANCE TO THE REDUCTION IN FORCE." (TR. 33).
 AT NO TIME DURING THE HEARING DID THE GENERAL COUNSEL CHANGE HIS
 POSITION AND MOVE TO AMEND THE COMPLAINT.  BUT FOR THE GENERAL COUNSEL'S
 INSISTENCE THAT CONTRACTING OUT WAS NOT AT ISSUE, RESPONDENT MAY VERY
 WELL HAVE PREPARED HIS DEFENSE DIFFERENTLY OR CALLED ADDITIONAL
 WITNESSES, ESPECIALLY THOSE FAMILIAR WITH THE CONTRACTING OUT PROCESS.
 IN THESE CIRCUMSTANCES, I AM UNABLE TO CONCLUDE THAT THE ISSUE RAISED BY
 THE GENERAL COUNSEL IN ITS POST-HEARING BRIEF WAS FULLY LITIGATED AT THE
 HEARING OR THAT RESPONDENT HAS NOT BEEN PREJUDICED BY THIS BELATED
 CHANGE OF POSITION.  THE MOTION IS DENIED.
 
    /7/ VALADEZ THOUGHT THE MEETING WAS ON JULY 27 BUT COERS AND GIBSON
 THOUGHT IT WAS ON JULY 30.  GIBSON WAS IN THE BEST POSITION TO KNOW
 BECAUSE HE WAS DIRECTLY INVOLVED.  MOREOVER, THE LETTERS HANDED OUT WERE
 DATED JULY 30 AND IT WAS DURING THE WEEK BEGINNING JULY 30 THAT
 EMPLOYEES SOUGHT OUT VALADEZ.
 
    /8/ ON THIS DISPUTED FACT, I RESOLVE A CREDIBILITY ISSUE IN FAVOR OF
 COERS, RATHER THAN VALADEZ.  COERS VERSION SEEMED MORE PLAUSIBLE AND
 OTHERWISE FITTED IN BETTER WITH THE ENTIRE SEQUENCE OF EVENTS.  ON THIS
 PARTICULAR POINT, HIS TESTIMONY WAS MORE PERSUASIVE.  I WOULD FURTHER
 CONCLUDE, HOWEVER, FROM THE TENOR AND TONE OF HIS CONVERSATION AS
 RELATED BY BOTH WITNESSES, THAT COERS WAS PRIMARILY ACTING AS A CONDUIT
 THROUGH WHICH THE UNION WAS BEING ADVISED ABOUT AN ACCOMPLISHED ACT.
 
    /9/ BY MOTION DATED JUNE 6, 1980, COUNSEL FOR GENERAL COUNSEL MOVED
 TO STRIKE CERTAIN EVIDENCE CONTAINED IN RESPONDENT'S BRIEF WHICH WAS NOT
 SUBMITTED AT THE HEARING.  BY RESPONSE DATED JUNE 12 RESPONDENT CONTENDS
 THAT BECAUSE THE ADMINISTRATIVE LAW JUDGE REQUESTED "ARGUMENTS AND CASE
 CITATIONS" WITH RESPECT TO THE APPROPRIATENESS OF GENERAL COUNSEL'S
 REQUEST FOR A STATUS QUO REMEDY, IT WAS ENTITLED TO SUBMIT EVIDENCE
 PURSUANT TO SECTION 2423.19(O) OF THE REGULATIONS.  THAT SECTION,
 HOWEVER, CONCERNS THE TAKING OF OFFICIAL NOTICE OF MATERIAL FACT NOT
 APPEARING IN THE RECORD "WHICH IS AMONG THE TRADITIONAL MATTERS OF
 JUDICIAL NOTICE" AND CONCERNING WHICH THE PARTIES WERE GIVEN ADEQUATE
 NOTICE.  SECTION 2423.19(O) IS INAPPLICABLE TO THE EVIDENCE PRESENTED IN
 RESPONDENT'S BRIEF CONCERNING WHAT HAPPENED TO THE DRIVERS AFFECTED BY
 THE REDUCTION-IN-FORCE AND, IN ADDITION, NO NOTICE WAS PROVIDED.  THE
 MOTION TO STRIKE IS HEREBY GRANTED.
 
    /10/ UNITED STATES DEPARTMENT OF NAVY, 3 A/SLMR 376;  CF. IOWA STATE
 STABILIZATION OFFICE, 4 A/SLMR 784.
 
    /11/ AAFES PACIFIC EXCHANGE SERVICE, 4 A/SLMR 790.
 
    /12/ NORTHEASTERN PROGRAM CENTER, 6 A/SLMR 654;  AAFES PACIFIC
 EXCHANGE SYSTEM, 4 A/SLMR 790.
 
    /13/ DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
 JACKSONVILLE DISTRICT, CASE NO. 4-CA-50(1), 3 FLRA NO. 103(JULY 17,
 1980);  THE ADJUTANT GENERAL'S OFFICE, PUERTO RICO AIR NATIONAL GUARD, 3
 FLRA NO. 55(JUNE 3, 1980);  DEPARTMENT OF THE AIR FORCE, 47TH FLYING
 TRAINING WING, LAUGHLIN AIR FORCE BASE, TEXAS, 2 FLRA NO. 24(DECEMBER 5,
 1979);  NATIONAL SCIENCE FOUNDATION, 1 FLRA NO. 116(SEPTEMBER 24, 1979);
  DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, SOUTHWEST REGION,
 1 FLRA NO. 70 (JUNE 15, 1979);  SOC