United States Air Force, A/SLMR No. 1152

 1 FLRA No. 42
                                            May 21, 1979
 
 MR. ROBERT J. ENGLEHART
 STAFF ATTORNEY
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES
 1016 16TH STREET, N.W.
 WASHINGTON, D.C.  20036
 
                              RE:  UNITED STATES AIR FORCE, A/SLMR 
                                   No. 1152, FLRC No. 78A-184
 
 DEAR MR. ENGLEHART:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF
 THE ASSISTANT SECRETARY'S DECISION, AND THE AGENCY'S OPPOSITION THERETO,
 IN THE ABOVE-ENTITLED CASE.
 
    IN THIS CASE, THE DEPARTMENT OF THE AIR FORCE (THE AGENCY), A PRIMARY
 NATIONAL SUBDIVISION OF THE DEPARTMENT OF DEFENSE, FORMALLY ANNOUNCED
 THAT ITS SUBORDINATE AIR TRAINING COMMAND (THE ACTIVITY) HAD DECIDED TO
 REORGANIZE CERTAIN TECHNICAL TRAINING CENTERS.  FOLLOWING THIS
 ANNOUNCEMENT, THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES (THE UNION),
 WHICH HAD BEEN GRANTED NATIONAL CONSULTATION RIGHTS UNDER SECTION 9(B)
 OF THE ORDER /1/ BY THE AGENCY, FILED AN UNFAIR LABOR PRACTICE COMPLAINT
 ALLEGING THAT THE AGENCY HAD VIOLATED SECTION 19(A)(1) AND (6) OF THE
 ORDER BY (A) FAILING TO SUPPLY, ON REQUEST, INFORMATION CONCERNING THE
 ACTIVITY'S REORGANIZATION WHICH WAS NECESSARY FOR THE UNION TO ENGAGE IN
 INTELLIGENT BARGAINING, AND (B) FAILING TO GIVE THE UNION APPROPRIATE
 PRIOR NOTICE OF, AND ALLOW IT TO COMMENT ON, THE REORGANIZATION.
 
    THE ADMINISTRATIVE LAW JUDGE (ALJ) FOUND THAT EVEN THOUGH THE FORMAL
 ANNOUNCEMENT OF THE REORGANIZATION WAS MADE BY THE AGENCY (AS WAS
 CUSTOMARY IN ALL SUCH CASES) THE ACTUAL DECISION TO REORGANIZE WAS MADE
 INDEPENDENTLY BY THE ACTIVITY, UNDER ITS OWN AUTHORITY, "WITHOUT ANY
 PRIOR CONSULTATION OR OTHER INPUT" FROM THE AGENCY ITSELF.
 CONSEQUENTLY, HE CONCLUDED THAT THE AGENCY'S OBLIGATION TO CONSULT WITH
 THE UNION UNDER SECTION 9(B) DID NOT ARISE IN THIS CASE, AND RECOMMENDED
 THAT THE UNION'S COMPLAINT BE DISMISSED.
 
    THE ASSISTANT SECRETARY, ADOPTING THE FINDINGS, CONCLUSIONS AND
 RECOMMENDATION OF THE ALJ, CONCLUDED:
 
    (T)HE EVIDENCE ESTABLISHES THAT THE (ACTIVITY) IS NOT AN AGENCY OR A
 PRIMARY NATIONAL
 
    SUBDIVISION OF AN AGENCY WITHIN THE MEANING OF THE EXECUTIVE ORDER
 AND PART 2412 OF THE
 
    FEDERAL LABOR RELATIONS COUNCIL'S RULES AND REGULATIONS.  NOR DOES
 THE EVIDENCE ESTABLISH THAT
 
    THE (ACTIVITY) WAS ACTING AS AN AGENT FOR AN AGENCY OR A PRIMARY
 NATIONAL SUBDIVISION OF AN
 
    AGENCY WHEN IT CARRIED OUT THE REORGANIZATION INVOLVED HEREIN.
 ACCORDINGLY, IN AGREEMENT WITH
 
    THE ADMINISTRATIVE LAW JUDGE, I FIND THAT THERE WAS NO OBLIGATION
 UNDER SECTION 9(B) OF THE
 
    ORDER FOR THE (AGENCY) TO ACCORD THE (UNION) TIMELY NOTICE OR THE
 OPPORTUNITY TO SUBMIT
 
    COMMENTS WITH RESPECT TO THE PROPOSAL OF THE (ACTIVITY) TO
 REORGANIZE.
 
    IN THE UNION'S PETITION FOR REVIEW IT IS ALLEGED THAT THE ASSISTANT
 SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS AND PRESENTS A MAJOR
 POLICY ISSUE BECAUSE IT REPRESENTS A MARKED DEPARTURE FROM HIS TWO
 EARLIER DECISIONS CONCERNING NATIONAL CONSULTATION RIGHTS.  2
 
    AS TO THE ALLEGATION THAT THE ASSISTANT SECRETARY'S DECISION IS
 ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR IN THE CIRCUMSTANCES OF
 THIS CASE THAT THE ASSISTANT SECRETARY ACTED WITHOUT REASONABLE
 JUSTIFICATION IN REACHING HIS DECISION.  IN THIS REGARD, THE APPEAL
 HEREIN FAILS TO REVEAL ANY CLEAR, UNEXPLAINED INCONSISTENCY BETWEEN THE
 INSTANT DECISION AND PREVIOUSLY PUBLISHED DECISIONS OF THE ASSISTANT
 SECRETARY. MOREOVER, THE APPEAL FAILS TO CONTAIN ANY SUPPORT FOR A
 CONTENTION THAT THE ASSISTANT SECRETARY'S DECISION IS INCONSISTENT
 EITHER WITH APPLICABLE PRECEDENT OR THE PURPOSES AND POLICIES OF THE
 ORDER, AND THEREFORE NO MAJOR POLICY ISSUE IS PRESENTED WARRANTING
 REVIEW.
 
    SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
 AND CAPRICIOUS OR PRESENT A MAJOR POLICY ISSUE, THE APPEAL FAILS TO MEET
 THE REQUIREMENTS FOR REVIEW AS PROVIDED IN SECTION 2400.2 OF THE
 AUTHORITY'S TRANSITION RULES, WHICH INCORPORATES BY REFERENCE SECTION
 2411.12 OF THE COUNCIL'S RULES.  ACCORDINGLY, THE PETITION FOR REVIEW IS
 HEREBY DENIED.  /3/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  D. A. DRESSER
 
    AIR FORCE
 
    /1/ SECTION 9(B) PROVIDES:
 
    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.
 
    /2/ SECRETARY OF THE NAVY, DEPARTMENT OF THE NAVY, PENTAGON, A/SLMR
 NO. 924, SET ASIDE IN PART FLRC NO. 77A-146 (DEC. 29, 1978), REPORT NO.
 167;  DEPARTMENT OF THE NAVY, OFFICE OF CIVILIAN PERSONNEL, A/SLMR NO.
 1012, SET ASIDE IN PART FLRC NO. 78A-47 (DEC.  29, 1978), REPORT NO.
 167.
 
    /3/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1124), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION 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 IF THE CASE HAD ARISEN UNDER THE STATUTE RATHER THAN
 THE ORDER.