24:0577(61)CA - NG Bureau and ACT -- 1986 FLRAdec CA



[ v24 p577 ]
24:0577(61)CA
The decision of the Authority follows:


 24 FLRA No. 61
 
 NATIONAL GUARD BUREAU
 Respondent
 
 and
 
 ASSOCIATION OF CIVILIAN 
 TECHNICIANS
 Charging Party/Union
 
                                            Case No. 3-CA-60128
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority, in
 accordance with section 2429.1(a) of the Authority's Rules and
 Regulations, based on a stipulation of facts by the parties, who have
 agreed that no material issue of fact exists.  Briefs for the
 Authority's consideration were filed by the Respondent and the General
 Counsel.
 
    The complaint alleges that the National Guard Bureau (Respondent)
 violated section 7116(a)(1) and (5) of the Federal Service
 Labor-Management Relations Statute (the Statute) by instituting a
 substantive change in conditions of employment without affording the
 Charging Party, Association of Civilian Technicians (ACT), prior notice
 and a reasonable time to present its views and recommendations regarding
 the change, pursuant to its previously granted national consultation
 rights, as required by section 7113 of the Statute.  Specifically, by
 memorandum to all Adjutants General dated June 21, 1985, the Respondent
 implemented an expansion of its "Mix-of-the-Force" policy without prior
 notice to ACT.  The expanded policy allows non-bargaining unit Active
 Guard/Reserve Military personnel to fill certain bargaining unit
 technician positions formerly occupied solely by civilian technicians.
 
                          II.  Facts of the Case
 
    At all times material herein, ACT has been granted national
 consultation rights by the National Guard Bureau under section 7113 of
 the Statute.  By memorandum to the Adjutants General of all States,
 Puerto Rico, the Virgin Islands, Guam and the Cistrict of Columbia dated
 June 21, 1985, the National Guard Bureau implemented an expansion of its
 Mix-of-the-Force policy.  /1/ Paragraph 5(b) of the policy announcement
 listed twelve (12) job classifications which could be filled by Active
 Guard/Reserve Military personnel.  The twelve (12) job classifications
 were positions which had previously been reserved exclusively for
 civilian technicians.
 
                              III.  The Issue
 
    The issue in this case is whether the National Guard Bureau violated
 section 7116(a)(1) and (5) of the Statute by issuing, without consulting
 with ACT under section 7113 of the Statute, the June 21, 1985
 Memorandum.
 
                       VI.  Positions of the Parties
 
    The arguments of the parties are essentially the same as those set
 forth in National Guard Bureau, 22 FLRA No. 90 (1986).  In summary, the
 Agency asserts that it had no obligation to consult with ACT under
 section 7113 because the memorandum would have no actual immediate
 impact and little, if any, forseeable impact on bargaining unit
 employees.  The General Counsel argues that through the memorandum the
 Respondent instituted a substantive change in conditions of employment
 of certain bargaining unit employees without fulfilling its obligations
 under section 7113 of the Statute.
 
                               V.  Analysis
 
    This case, like National Guard Bureau, 22 FLRA No. 90 (1986),
 involves the application of section 7113 of the Statute.  Section
 7113(b)(1) of the Statute requires an agency to inform a labor
 organization having national consultation rights with the agency of any
 substantive changes in conditions of employment proposed by the agency
 and to provide the labor organization with reasonable time to present
 its views and recommendations regarding the changes and to consider such
 views and recommendations before taking final action.
 
    As noted in National Guard Bureau, in order for the consultation
 obligation set forth in section 7113(b)(1) of the Statute to apply,
 there must be a substantive change in conditions of employment.  Section
 7103(a)(14) of the Statute defines conditions of employment as
 "personnel policies, practices, and matters, whether established by
 rule, regulation or otherwise, affecting working conditions(.)"
 
    This case involves the same circumstances and arguments as involved
 in National Guard Bureau.  /2/ For the reasons expressed in that case we
 find that the Agency's June 21, 1985 policy announcement constituted a
 substantive change in personnel policy.  Since ACT had national
 consultation rights, the National Guard Bureau was obligated to comply
 with the provisions of section 7113(b)(1) of the Statute prior to
 finalizing the changes.  Thus, the National Guard Bureau was required to
 notify ACT and provide ACT with the opportunity to present its views and
 recommendations and to consider such views or recommendations before it
 issued the June 21, 1985 Memorandum.  This was not done.  Therefore, we
 conclude that the National Guard Bureau failed to comply with its
 obligation to consult under 7113(b)(1) of the Statute.
 
                              VI.  Conclusion
 
    The Authority has considered all the facts and circumstances of this
 case, including the positions of the parties.  The Authority concludes
 that the Respondent failed to fulfill its obligation to consult with ACT
 pursuant to section 7113(b)(1) of the Statute prior to issuing its June
 21, 1985 Memorandum expanding its Mix-of-the-Force policy and, thus, the
 Respondent violated section 7116(a)(1) and (5) of the Statute.
 Therefore, the Respondent shall be ordered to provide ACT, pursuant to
 its national consultation rights under section 7113 of the Statute, with
 reasonable time to present its views and recommendations concerning
 procedures pertaining to the impact and implementation of the expanded
 Mix-of-the-Force policy.  /3/
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority's and section 7118 of the Statute, the
 Authority hereby orders the National Guard Bureau shall:
 
    1.  Cease and desist from:
 
    (a) Failing to inform the Association fo Civilian Technicians (ACT)
 pursuant to ACT's national consultation rights under section 7113 of the
 Statute, of proposed substantive changes in conditions of employment,
 and failing to provide ACT with a reasonable period of time to present
 its views and recommendations regarding the proposed changes.
 
    (b) In any like of related manner interfering with, restraining, or
 coercing employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Provide the Association of Civilian Technicians, pursuant to its
 national consultation rights under section 7113 of the Statute, a
 reasonable period of time to present its views and recommendations
 concerning procedures pertaining to the impact and implementation of the
 expanded Mix-of-the-Force policy, and thereafter, comply with the
 requirements of section 7113(b)(2) of the Statute.
 
    (b) Post at its facilities copies of the attached Notice or forms to
 be furnished by the Federal Labor Relations Authority.  Upon receipt of
 such forms, they shall be signed by the Director, Army National Guard,
 and shall be posted and maintained for 60 consecutive days thereafter,
 in conspicuous places, including bulletin boards and other places where
 notices to employees are customarily posted.  Reasonable steps shall be
 taken by the National Guard Bureau to insure that such Notices are not
 altered, defaced, or covered by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region III, Federal Labor
 Relations Authority, in writing, within 30 days of the date of this
 Order, as to what steps have been taken to comply herewith.
 
    Issued, Washington, D.C. December 18, 1986
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) This memorandum is the same memorandum as that which was the
 focus of the complaint in National Guard Bureau, 22 FLRA No. 90 (1986).
 
    (2) In National Guard Bureau, the parties stipulated to the number of
 civilian technicians actually assigned to the 12 positions in 19 states
 in which the union involved in that case held exclusive recognitions.
 No similar facts were included in the stipulation in this case.  In its
 brief, the Agency has included figures similar to those stipulated to in
 the previous case as well as its projections as to the "foreseeable"
 impact of the new policy based on those figures and its estimates of
 attrition rates.  However, in any matter submitted directly to the
 Authority for decision based on a stipulation of facts, the Authority
 will consider only facts contained in the stipulation.  See, e.g.,
 General Services Administration, 6 FLRA 430 (1981).
 
    (3) In the absence of a request by the General Counsel or ACT for a
 status quo ante remedy we conclude, in the circumstances of this case,
 that no such remedy is warranted. See National Guard Bureau, 18 FLRA No.
 62, slip op. at 4 n.4 (1985).
 
 
 
 
 
 
                          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 to inform the Association of Civilian Technicians
 (ACT), pursuant to ACT's national consultation rights under section 7113
 of the Statute, of proposed substantive changes in conditions of
 employment, or fail to provide ACT with a reasonable period of time to
 present its views and recommendations regarding the proposed changes.
 
    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
 Statute.
 
    WE WILL provide the Association of Civilian Technicians pursuant to
 its national consultation rights under section 7113 of the Statute, a
 reasonable period of time to present its views and recommendations
 concerning procedures pertaining to the impact and implementation of the
 expanded Mix-of-the-Force policy, and thereafter, comply with the
 requirements of section 7113(b)(2) of the Statute.
                                       (Activity)
 
    Dated:
                                       By:  (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must