Department of the Navy, Office of Civilian Personnel (Respondent) and National Federation of Federal Employees (Complainant)
[ v01 p168 ]
01:0168(21)CA
The decision of the Authority follows:
1 FLRA No. 21
DEPARTMENT OF THE NAVY,
OFFICE OF CIVILIAN PERSONNEL
Respondent
and
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
Complainant
Assistant Secretary
Case No. 22-07332(CA)
A/SLMR No. 1012
FLRC No. 78A-47
SUPPLEMENTAL DECISION AND ORDER
THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS
ISSUED HIS DECISION AND ORDER IN THE ABOVE-REFERENCED CASE, FINDING THAT
THE RESPONDENT HAD VIOLATED SECTION 19(A)(1) AND (6) OF EXECUTIVE ORDER
11491, AS AMENDED. ON DECEMBER 29, 1978, THE FEDERAL LABOR RELATIONS
COUNCIL (COUNCIL) ISSUED ITS DECISION ON APPEAL IN THIS MATTER,
SUSTAINING IN PART AND SETTING ASIDE IN PART, THE UNFAIR LABOR PRACTICE
FINDINGS OF THE ASSISTANT SECRETARY, AND REMANDED THE CASE FOR
APPROPRIATE ACTION CONSISTENT WITH THE COUNCIL'S DECISION.
THE FUNCTIONS OF THE ASSISTANT SECRETARY, IN A MATTER SUCH AS HERE
INVOLVED, 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 TRANSITION
RULES AND REGULATIONS (44 F.R. 7). 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 TRANSITION
RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
HEREBY FINDS IN THE INSTANT CASE THAT THE RESPONDENT VIOLATED SECTION
19(A)(1) AND (6) OF E.O. 11491, AS AMENDED, IN THE MANNER AND TO THE
EXTENT SET FORTH IN THE DECISION OF THE COUNCIL, /1/ AND, CONSISTENT
WITH THAT DECISION, THE AUTHORITY HEREBY ISSUES THE FOLLOWING ORDER:
ORDER
PURSUANT TO SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE DEPARTMENT OF THE NAVY, OFFICE OF CIVILIAN PERSONNEL, SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING TO PROVIDE THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
PURSUANT TO ITS NATIONAL CONSULTATION RIGHTS UNDER EXECUTIVE ORDER
11491, AS AMENDED, AN OPPORTUNITY TO CONSULT IN PERSON AND TO PRESENT
ITS VIEWS IN WRITING ON PROPOSED SUBSTANTIVE CHANGES IN PERSONNEL
POLICY.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) UPON REQUEST, CONSULT WITH THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, PURSUANT TO ITS NATIONAL CONSULTATION RIGHTS UNDER THE
EXECUTIVE ORDER AND TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS,
CONCERNING THE PROCEDURES USED IN IMPLEMENTING THE AGENCY'S NEW
CONSOLIDATION OF SUPPORT SERVICES POLICY AND THE IMPACT OF THE CHANGE IN
POLICY ON THE ADVERSELY AFFECTED EMPLOYEES.
(B) POST AT UNITS OF ALL DEPARTMENT OF THE NAVY FACILITIES AND
INSTALLATIONS WHERE THE COMPLAINANT IS THE EXCLUSIVE REPRESENTATIVE
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED
BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS
THEY SHALL BE SIGNED BY THE DIRECTOR OF THE OFFICE OF CIVILIAN PERSONNEL
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. THE COMMANDING OFFICER OF
EACH FACILITY OR INSTALLATION SHALL TAKE REASONABLE STEPS TO INSURE THAT
SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
IT IS HEREBY FURTHER ORDERED THAT SO MUCH OF THE COMPLAINT IN CASE
NO. 22-07332(CA) FOUND NOT TO BE VIOLATIVE OF THE EXECUTIVE ORDER IN THE
DECISION OF THE FEDERAL LABOR RELATIONS COUNCIL BE, AND IT HEREBY IS,
DISMISSED.
RONALD W. HAUGHTON
CHAIRMAN
HENRY B. FRAZIER III
MEMBER
ISSUED: APRIL 10, 1979
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A SUPPLEMENTAL DECISION
AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY WE
HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT FAIL TO PROVIDE THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, PURSUANT TO ITS NATIONAL CONSULTATION RIGHTS UNDER EXECUTIVE
ORDER 11491, AS AMENDED, AN OPPORTUNITY TO CONSULT IN PERSON AND PRESENT
ITS VIEWS IN WRITING ON PERSONNEL POLICY MATTERS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL, UPON REQUEST OF THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, PURSUANT TO ITS NATIONAL CONSULTATION RIGHTS UNDER THE ORDER,
CONSULT WITH THAT ORGANIZATION, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, CONCERNING THE PROCEDURES USED IN IMPLEMENTING THE NEW
CONSOLIDATION OF SUPPORT SERVICES POLICY, AND THE IMPACT OF THE CHANGE
IN POLICY ON ADVERSELY AFFECTED EMPLOYEES.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
AUTHORITY AGENT IN CHARGE, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: ROOM 509, VANGUARD BUILDING, P. O. BOX 19257, 1111 20TH
STREET, N.W., WASHINGTON, D.C. 20036.
DECISION ON APPEAL FROM ASSISTANT SECRETARY DECISION
BACKGROUND OF CASE
THIS APPEAL AROSE FROM A DECISION OF THE ASSISTANT SECRETARY HOLDING
THAT THE DEPARTMENT OF THE NAVY, OFFICE OF CIVILIAN PERSONNEL (THE
AGENCY) VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY FAILING TO
PROVIDE THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES (THE UNION), WHICH
HAD PREVIOUSLY BEEN GRANTED NATIONAL CONSULTATION RIGHTS UNDER SECTION
9(B) OF THE ORDER, /2/ WITH NOTICE OF AND AN OPPORTUNITY TO COMMENT ON A
PROPOSED SUBSTANTIVE CHANGE IN PERSONNEL POLICY (I.E., AN AGENCYWIDE
PROPOSAL FOR THE CONSOLIDATION OF CERTAIN SUPPORT FACILITIES), AS WELL
AS BY FAILING TO NOTIFY THE UNION OF THE PROPOSED CHANGE AND TO AFFORD
IT AN OPPORTUNITY TO CONSULT ABOUT THE IMPACT AND IMPLEMENTATION
THEREOF.
ACCORDING TO THE ASSISTANT SECRETARY'S DECISION, BASED UPON
UNDISPUTED FACTS AS STIPULATED BY THE PARTIES, THE CASE AROSE WHEN THE
SECRETARY OF THE NAVY ISSUED A NEWS RELEASE PROPOSING A NUMBER OF
MANAGEMENT ACTIONS DIRECTED TOWARD THE REDUCTION OF OVERHEAD AND
SUPPORT
COSTS, AMONG WHICH ACTIONS WAS A STUDY OF THE POSSIBLE TERMINATION OF
AIR OPERATIONS AND THE CONSOLIDATION OF REMAINING SUPPORT FACILITIES AT
THE NAVAL AIR ENGINEERING CENTER, LAKEHURST, NEW JERSEY. FOLLOWING THIS
NEWS RELEASE, THE CHIEF OF THE NAVAL AIR SYSTEMS COMMAND (NASC) ISSUED A
MEMORANDUM DIRECTING THE CONSOLIDATION OF THE LAKEHURST NAVAL AIR
ENGINEERING CENTER WITH THE OTHER TWO LAKEHURST COMMANDS, RESULTING IN
THE DISPLACEMENT OF APPROXIMATELY 59 CIVILIAN EMPLOYEES. THIS NASC
MEMORANDUM, AS FOUND BY THE ASSISTANT SECRETARY, "WAS THE (UNION'S)
FIRST NOTICE OF AN AGENCY-WIDE PROPOSAL FOR CONSOLIDATION OF ITS SUPPORT
FACILITIES AS OUTLINED IN THE SECRETARY OF THE NAVY'S NEWS RELEASE . . .
"THE UNION THEREUPON FILED AN UNFAIR LABOR PRACTICE COMPLAINT ALLEGING
THAT THE AGENCY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER "WHEN ITS
AGENT, THE (NASC), DIRECTED THE REALIGNMENT OF ITS FIELD ACTIVITIES AT
LAKEHURST, NEW JERSEY, WITHOUT PRIOR NATIONAL CONSULTATION WITH THE
(UNION)."
THE ASSISTANT SECRETARY FOUND, CONTRARY TO THE AGENCY'S CONTENTION,
THAT THE PROPOSAL BY THE SECRETARY OF THE NAVY TO CONSOLIDATE SUPPORT
ACTIVITIES AGENCYWIDE WAS A "SUBSTANTIVE CHANGE IN PERSONNEL POLICY"
WITHIN THE MEANING OF SECTION 9(B) OF THE ORDER AND SECTION 2412.1 OF
THE COUNCIL'S REGULATIONS. /3/ ACCORDINGLY, AND CITING HIS PREVIOUS
DECISION IN SECRETARY OF THE NAVY, DEPARTMENT OF THE NAVY, PENTAGON,
A/SLMR 924, THE COUCIL'S DECISION IN WHICH (FLRC 77A-146) ISSUED THIS
DATE, THE ASSISTANT SECRETARY HELD THAT THE AGENCY HAD VIOLATED SECTION
19(A)(1) AND (6) OF THE ORDER BY FAILING TO NOTIFY THE UNION OF THE
PROPOSED CONSOLIDATION, THEREBY DEPRIVING THE UNION OF ITS RIGHT UNDER
SECTION 9(B) TO COMMENT ON THAT PROPOSED CHANGE. THE ASSISTANT
SECRETARY FURTHER HELD (AGAIN CITING HIS DECISION IN SECRETARY OF THE
NAVY, SUPRA) THAT, ALTHOUGH THE AGENCY WAS NOT OBLIGATED TO CONSULT WITH
THE UNION ABOUT THE ACTUAL DECISION TO CONSOLIDATE SUPPORT SERVICES, /4/
IT WAS NEVERTHELESS OBLIGATED TO CONSULT ABOUT THE IMPACT AND
IMPLEMENTATION OF SUCH DECISION, AND THAT ITS FAILURE TO PROVIDE THE
UNION WITH PRIOR NOTICE OF THE DECISION AND TO AFFORD IT AN OPPORTUNITY
TO SO CONSULT ALSO VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER.
ACCORDINGLY, HE ISSUED A REMEDIAL ORDER DIRECTING THE AGENCY TO CEASE
AND DESIST FROM SUCH VIOLATIONS AND TO POST THE CUSTOMARY NOTICE TO
EMPLOYEES.
THE AGENCY APPEALED THE ASSISTANT SECRETARY'S DECISION TO THE
COUNCIL. THE COUNCIL ACCEPTED THE AGENCY'S PETITION FOR REVIEW, HAVING
CONCLUDED THAT THE ASSISTANT SECRETARY'S DECISION RAISED A MAJOR POLICY
ISSUE AS TO THE MEANING AND APPLICATION OF SECTION 9(B) OF THE ORDER IN
THE CIRCUMSTANCES OF THIS CASE. THE COUNCIL ALSO DETERMINED THAT THE
AGENCY'S REQUEST FOR A STAY MET THE CRITERIA FOR GRANTING STAYS SET
FORTH IN SECTION 2411.47(E)(2) OF THE COUNCIL'S RULES AND GRANTED THE
REQUEST. ONLY THE UNION FILED A SUBMISSION ON THE MERITS OF THE CASE.
OPINION
AS NOTED ABOVE, THE COUNCIL CONCLUDED THAT THE DECISION OF THE
ASSISTANT SECRETARY RAISED A MAJOR POLICY ISSUE AS TO THE MEANING AND
APPLICATION OF SECTION 9(B) OF THE ORDER IN THE CIRCUMSTANCES OF THIS
CASE.
AS FURTHER NOTED ABOVE, ON THIS DATE THE COUNCIL HAS ISSUED ITS
DECISION IN SECRETARY OF THE NAVY, DEPARTMENT OF THE NAVY, PENTAGON,
A/SLMR 924, FLRC 77A-146, WHICH PRESENTED, IN SIMILAR CIRCUMSTANCES, THE
IDENTICAL MAJOR POLICY ISSUE INVOLVED IN THE INSTANT CASE. IN SECRETARY
OF THE NAVY, THE COUNCIL CONCLUDED THAT THE ASSISTANT SECRETARY HAD IN
CERTAIN RESPECTS MISINTERPRETED AND MISAPPLIED SECTION 9(B) OF THE ORDER
IN FINDING THAT THE AGENCY VIOLATED SECTION 19(A)(1) AND (6) BY FAILING
TO PROVIDE THE UNION WITH NOTICE OF AND AN OPPORTUNITY TO COMMENT ON A
PROPOSED CHANGE IN THE AGENCY'S CONTRACTING OUT POLICY, BUT THAT HIS
DECISION WAS CONSISTENT WITH THE ORDER TO THE EXTENT THAT HE FOUND THE
AGENCY IN VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER FOR
REFUSING TO CONSULT WITH THE UNION ABOUT THE IMPACT AND IMPLEMENTATION
OF THAT POLICY. FOR THE REASONS FULLY EXPLICATED BY THE COUNCIL IN FLRC
77A-146, WHICH ARE DISPOSITIVE IN THE INSTANT CASE, WE SIMILARLY SUSTAIN
THE ASSISTANT SECRETARY'S DECISION HEREIN AS CONSISTENT WITH THE ORDER
TO THE EXTENT HE FOUND THAT THE AGENCY VIOLATED SECTION 19(A)(1) AND (6)
BY FAILING TO NOTIFY THE UNION OF ITS DECISION TO CONSOLIDATE CERTAIN
SUPPORT SERVICES AND TO PROVIDE THE UNION WITH AN OPPORTUNITY TO CONSULT
ABOUT THE IMPACT AND IMPLEMENTATION THEREOF, BUT SET ASIDE HIS DECISION
TO THE EXTENT THAT HE FOUND THAT THE AGENCY VIOLATED SECTION 19(A)(1)
AND (6) BY FAILING TO NOTIFY THE UNION OF THE PROPOSED CONSOLIDATION AND
TO PROVIDE IT THE OPPORTUNITY TO COMMENT ON SUCH PROPOSED CHANGE.
CONCLUSION
ACCORDINGLY, FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION
2411.18(B) OF THE COUNCIL'S RULES OF PROCEDURE, WE SUSTAIN IN PART AND
SET ASIDE IN PART THE ASSISTANT SECRETARY'S DECISION AND ORDER AND
REMAND THIS MATTER FOR APPROPRIATE ACTION CONSISTENT WITH OUR DECISION
HEREIN.
BY THE COUNCIL.
HAROLD W. KESSLER
FOR HENRY B. FRAZIER III
EXECUTIVE DIRECTOR
ISSUED: DECEMBER 29, 1978
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE WAS DECIDED SOLELY ON THE
BASIS OF EXECUTIVE ORDER 11491, AS AMENDED, AND AS IF THE NEW FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE "HAD NOT BEEN ENACTED" (92
STAT. 1191). THE SUPPLEMENTAL 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 ORDER.
/2/ SECTION 9(B) OF THE ORDER PROVIDES AS FOLLOWS:
WHEN A LABOR ORGANIZATION HAS BEEN ACCORDED NATIONAL CONSULTATION
RIGHTS, THE AGENCY,
THROUGH APPROPRIATE OFFICIALS, SHALL NOTIFY REPRESENTATIVES OF THE
ORGANIZATION OF PROPOSED
SUBSTANTIVE CHANGES IN PERSONNEL POLICIES THAT AFFECT EMPLOYEES IT
REPRESENTS AND PROVIDE AN
OPPORTUNITY FOR THE ORGANIZATION TO COMMENT ON THE PROPOSED CHANGES.
THE LABOR ORGANIZATION
MAY SUGGEST CHANGES IN THE AGENCY'S PERSONNEL POLICIES AND HAVE ITS
VIEWS CAREFULLY
CONSIDERED. IT MAY CONSULT IN PERSON AT REASONABLE TIMES, ON
REQUEST, WITH APPROPRIATE
OFFICIALS ON PERSONNEL POLICY MATTERS, AND AT ALL TIMES PRESENT ITS
VIEWS THEREON IN
WRITING. AN AGENCY IS NOT REQUIRED TO CONSULT WITH A LABOR
ORGANIZATION ON ANY MATTER ON
WHICH IT WOULD NOT BE REQUIRED TO MEET AND CONFER IF THE ORGANIZATION
WERE ENTITLED TO
EXCLUSIVE RECOGNITION.
/3/ SECTION 2412.1 OF THE COUNCIL'S RULES (5 C.F.R. 2412.1) PROVIDES
IN PERTINENT PART:
SUBSTANTIVE CHANGE IN PERSONNEL POLICY MEANS A CHANGE IN THE
ESTABLISHED RIGHTS OF
EMPLOYEES OR LABOR ORGANIZATIONS OR THE CONDITIONS RELATING TO SUCH
RIGHTS.
/4/ THE ASSISTANT SECRETARY'S FINDING THAT THE AGENCY WAS NOT
OBLIGATED TO CONSULT WITH THE UNION ABOUT THE ACTUAL DECISION TO
CONSOLIDATE SUPPORT SERVICES IS UNCHALLENGED AND THEREFORE NOT AT ISSUE
BEFORE THE COUNCIL.