Norfolk Naval Shipyard (Respondent) and Tidewater Virginia Federal Employees, Metal Trades Council, AFL-CIO (Complainant)  

 1 FLRA No. 86
 
 NORFOLK NAVAL SHIPYARD
 Respondent
 
 and
 
 TIDEWATER VIRGINIA FEDERAL EMPLOYEES
 METAL TRADES COUNCIL, AFL-CIO
 Complainant
 
                                            Assistant Secretary
                                            Case No. 22-08574(CA)
 
                            DECISION AND ORDER
 
    ON FEBRUARY 1, 1979, ADMINISTRATIVE LAW JUDGE ROBERT C. MAHONY ISSUED
 HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
 FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
 PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT
 BE DISMISSED IN ITS ENTIRETY.  THEREAFTER, THE COMPLAINANT FILED
 EXCEPTIONS WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
 DECISION AND ORDER.  /1/
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, 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.  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
 HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
 HEARING AND FINDS THAT NO PREJUDICAL 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, INCLUDING THE COMPLAINANT'S EXCEPTIONS, THE
 AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS /2/ AND RECOMMENDATION.  /3/
 
                                   ORDER
 
    IS IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 22-08574(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JULY 17, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    WALTER B. BAGBY
 
    LABOR RELATIONS ADVISOR
 
    SOUTHERN FIELD DIVISION
 
    OFFICE OF CIVILIAN PERSONNEL
 
    BUILDING A-67
 
    NORFOLK, VIRGINIA 23511
 
                             FOR THE ACTIVITY
 
    B. W. HENSLY
 
    GENERAL REPRESENTATIVE
 
    METAL TRADES DEPARTMENT
 
    815-16TH STREET, N.W.
 
    WASHINGTON, D.C. 20006
 
                            FOR THE COMPLAINANT
 
    BEFORE:  ROBERT G. MAHONY
 
    ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                           PRELIMINARY STATEMENT
 
    THIS PROCEEDING ARISES UNDER THE PROVISIONS OF EXECUTIVE ORDER 11491,
 AS AMENDED, (HEREINAFTER REFERRED TO AS THE "ORDER").  PURSUANT TO THE
 REGULATIONS OF THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT
 RELATIONS (HEREINAFTER REFERRED TO AS THE "ASSISTANT SECRETARY"), A
 NOTICE OF HEARING ON COMPLAINT ISSUED ON MAY 10, 1978 WITH REFERENCE TO
 ALLEGED VIOLATIONS OF SECTIONS 19(A)(1) AND (6) OF THE ORDER.  /4/ THE
 COMPLAINT WAS FILED ON OCTOBER 25, 1977 BY THE TIDEWATER VIRGINIA
 FEDERAL EMPLOYEES METAL TRADE COUNCIL, AFL-CIO (HEREINAFTER REFERRED TO
 AS THE "UNION" OR "COMPLAINANT").  AN AMENDED COMPLAINT WAS FILED ON
 MARCH 7, 1978.  THE COMPLAINT, AS AMENDED, ALLEGES THAT THE NORFOLK
 NAVAL SHIPYARD (HEREINAFTER REFERRED TO AS THE "ACTIVITY" OR
 "RESPONDENT") VIOLATED THE ORDER BY FAILING TO MEET AND CONSULT
 REGARDING A CHANGE TO THE ACTIVITY'S NUCLEAR POWER MANUAL NPM) AND THE
 IMPACT AND IMPLEMENTATION OF THE CHANGE, THAT DELETED A WORK FUNCTION,
 THE DAILY SURVEILLANCE OF RADIOACTIVE LIQUID WASTE TANKS, FROM SHOP 56
 (NUCLEAR PIPEFITTERS).
 
    A HEARING WAS ORIGINALLY SCHEDULED FOR JUNE 13, 1978.  THE UNION'S
 MOTION TO CONTINUE WAS GRANTED AND THE HEARING WAS RESCHEDULED FOR
 AUGUST 18, 1978 AT WHICH TIME THE PARTIES WERE AFFORDED AN OPPORTUNITY
 TO EXAMINE WITNESSES, INTRODUCE DOCUMENTARY EVIDENCE AND MAKE ORAL
 ARGUMENT.  THE PARTIES HAVE ALSO FILED TIMELY BRIEFS.
 
                             STATE OF THE CASE
 
    ON OR ABOUT AUGUST 9, 1977 THE ACTIVITY INSTITUTED A CHANGE IN ITS
 NUCLEAR POWER MANUAL WHICH DELETED THE REQUIREMENT FOR THE NUCLEAR
 PIPEFITTERS IN SHOP 56 TO CONDUCT DAILY SURVEILLANCES OF RADIOACTIVE
 LIQUID WASTE TANKS.
 
    THE UNION'S POSITION IS THAT SECTION 19(A)(1) AND (6) OF THE ORDER
 WAS VIOLATED BECAUSE IT WAS NOT AFFORDED AN OPPORTUNITY TO MEET AND
 DISCUSS THE CHANGE OR ITS IMPACT AND IMPLEMENTATION.  THE ALLEGED IMPACT
 WAS THAT SHOP 56 PERSONNEL LOST EIGHT MAN-HOURS PER DAY AND REGULARLY
 SCHEDULED WEEKEND OVERTIME.  FURTHER, IT CAUSED THEM TO BE LOANED OUT TO
 OTHER SHOPS, AND, IN GENERAL HAD A DEMORALIZING EFFECT ON THE SHOP
 PERSONNEL.
 
                                   ISSUE
 
    WHETHER RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER
 WHEN IT IMPLEMENTED A CHANGE TO CHAPTER XIII-C-3 OF THE NUCLEAR POWER
 MANUAL, THE EFFECT OF WHICH WAS TO DELETE A WORK FUNCTION FROM SHOP 56
 WITHOUT AFFORDING COMPLAINANT THE OPPORTUNITY TO BARGAIN.
 
                                DISCUSSION
 
    SECTION 11(A) OF THE ORDER REQUIRES MANAGEMENT AND THE UNION TO MEET
 AND CONFER IN GOOD FAITH WITH RESPECT TO PERSONNEL POLICIES AND
 PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS.
 
    THE DECISION TO DELETE THE SURVEILLANCE REQUIREMENT WAS PROMULGATED
 ON AUGUST 9, 1977, EFFECTIVE UPON RECEIPT.  ON AUGUST 16, 1977 THE
 COMPLAINANT, BY ITS PRESIDENT ADVISED THE ACTIVITY'S COMMANDER THAT THE
 UNION HAD NO OPPORTUNITY TO COMMENT ON THE CHANGE.
 
    RELYING UPON SECTION 12(B) OF THE ORDER, THE ACTIVITY ACKNOWLEDGED
 THAT THIS CHANGE WAS MADE WITHOUT BARGAINING BECAUSE IT WAS A MINOR
 CHANGE IN PROCEDURAL OPERATIONS BASED ON TECHNICAL CONSIDERATIONS AND
 DID NOT CHANGE OR ADD TO AN EXISTING WORKING CONDITION OR POLICY.  /5/
 THE CHANGE SIMPLY DELETED A RELATIVELY INSIGNIFICANT DUTY FROM SHOP 56
 IN ORDER TO IMPROVE THE EFFICIENCY OF THE OPERATION, AND THE EMPLOYEES
 OF SHOP 56 WERE NOT ADVERSELY AFFECTED AS ALLEGED IN THE COMPLAINT.
 ADDITIONALLY, THE ACTIVITY CONTENDS THAT, WHILE THE SURVEILLANCE
 REQUIREMENT WAS DELETED FROM SHOP 56, IT WAS NOT A TRANSFER OF FUNCTION
 TO CODE 105 EMPLOYEES, WHO ARE ALSO PART OF THE BARGAINING UNIT, BECAUSE
 THEY ALSO PERFORMED THIS FUNCTION UNDER CERTAIN CIRCUMSTANCES PRIOR TO
 THE CHANGE.
 
    MANAGEMENT INTRODUCED EVIDENCE TO ESTABLISH THAT THE DAILY
 SURVEILLANCE CHECKS PREVIOUSLY PERFORMED BY SHOP 56 WERE ELIMINATED
 BECAUSE THEY WERE DETERMINED TO BE UNNECESSARY.  SPECIFICALLY, THE
 DIRECTOR OF THE RADIOLOGICAL CONTROL OFFICE OF THE ACTIVITY TESTIFIED
 THAT THE SHOP 56 SURVEILLANCE WAS A REDUNDANT REQUIREMENT, AND, WAS
 ELIMINATED AS PART OF MANAGEMENT'S CONTINUING EFFORT TO CUT COSTS/ /6/
 IN ANY EVENT, SHOP 56 IS REQUIRED TO MAKE OTHER CHECKS ON THE TANKS,
 ESPECIALLY DURING THE TRANSFER OF RADIOACTIVE LIQUID WASTE FROM SHIPS TO
 TANKS.  THE UNION INTRODUCED NO EVIDENCE IN REBUTTAL.
 
    BASED UPON THE ENTIRE RECORD HEREIN AND FROM MY OBSERVATIONS OF THE
 WITNESSES AND THEIR DEMEANOR I FIND AND CONCLUDE THAT THE CHANGE IN THE
 NPM COMES WITHIN THE MEANING OF SECTION 12(B) OF THE ORDER AND THAT
 MANAGEMENT WAS NOT REQUIRED TO BARGAIN OVER THE DECISION.  MANAGEMENT
 HAS THE RIGHT TO MAINTAIN THE EFFICIENCY OF GOVERNMENT OPERATIONS AND TO
 DETERMINE THE METHODS, MEANS AND PERSONNEL BY WHICH SUCH OPERATIONS ARE
 TO BE CONDUCTED. MANAGEMENT'S ACTION IN THIS CASE WAS CONSISTENT WITH
 ITS PREROGATIVES UNDER SECTION 12(B).  ACCORDINGLY, I CONCLUDE THAT THE
 FAILURE TO BARGAIN OVER THE DECISION TO DELETE THE DAILY TANK
 SURVEILLANCE FUNCTION FROM SHOP 56 WAS NOT VIOLATIVE OF SECTION 19(A)(1)
 OR (6) OF THE ORDER.  TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES
 COUNCIL AND NAVAL PUBLIC WORKS CENTER, NORFOLK, VIRGINIA (FLRC NO.
 71A-56, JUNE 23, 1973).
 
    THE COMPLAINT FURTHER ALLEGES THAT THE IMPACT OF THE CHANGE HAD THE
 EFFECT OF SHOP 56 LOSING 8 MAN-HOURS PER DAY AND THE LOSS OF REGULARLY
 SCHEDULED WEEKEND OVERTIME.  IT ALSO CAUSED WORKERS TO BE LOANED OUT AND
 WAS GENERALLY DEMORALIZING TO SHOP 56 PERSONNEL.
 
    THE UNION LEARNED OF THE CHANGE ON OR ABOUT AUGUST 12, 1977, AND, AT
 THAT TIME DID NOT REQUEST BARGAINING OVER IMPACT AND IMPLEMENTATION.
 RATHER, FOUR DAYS LATER, ON AUGUST 16, 1977 THE UNION FILED A CHARGE
 ALLEGING A VIOLATION OF THE ORDER.
 
    HOWEVER, ON SEPTEMBER 29, 1977, ACCORDING TO MR. GARY DOWDY, A UNION
 WITNESS, THE UNION AND MANAGEMENT MET TO DISCUSS THIS PROBLEM.  THE
 UNION APPARENTLY MADE SOME PROPOSALS BUT THERE IS NO EVIDENCE AS TO WHAT
 THEY CONTAINED.  IT APPEARS, THEREFORE, THAT TO THE EXTENT REQUESTED,
 MANAGEMENT DID OFFER THE UNION AN OPPORTUNITY TO MEET AND CONFER ON THE
 ALLEGED IMPACT AND IMPLEMENTATION OF THE MANUAL CHANGE, NOTWITHSTANDING,
 THE UNFAIR LABOR PRACTICE CHARGE.  I, THEREFORE, FIND AND CONCLUDE, THAT
 MANAGEMENT MET ITS OBLIGATION UNDER SECTION 11(B) OF THE ORDER TO MEET
 AND CONFER ON THE QUESTION OF IMPACT AND IMPLEMENTATION.
 
    VIEWED FROM ANOTHER PERSPECTIVE, THERE IS NO EVIDENCE TO WHICH I
 ATTACH ANY WEIGHT TO ESTABLISH THAT THE CHANGE TO THE MANUAL HAD ANY
 MEANINGFUL IMPACT ON SHOP 56 PERSONNEL.  DEPARTMENT OF THE NAVY, NAVAL
 WEAPONS STATION, CONCORD, CALIFORNIA AND AFGE LOCAL 1931, (AFL-CIO).
 (A/SLMR NO. 1020, APRIL 13, 1978).
 
    MR. DOWDY TESTIFIED THAT THE DAILY SURVEILLANCES TOOK THE EQUIVALENT
 OF 8 MAN-HOURS PER DAY.  /7/ MANAGEMENT'S POSITION IS THAT SUCH
 SURVEILLANCE CONSTITUTED ONLY A MINOR PART OF THE RADIATION WASTE
 OPERATOR'S DUTIES, AND IN FACT, WAS NOT SPECIFICALLY MENTIONED IN A FOUR
 PAGE JOB DESCRIPTION OF THEIR DUTIES.  THE NUCLEAR PRODUCTION MANAGER,
 MR.  SCOTT, DESCRIBED IT AS AN INSIGNIFICANT DUTY.  HE ESTIMATED THAT
 THE WORK TOOK ABOUT ONE AND ONE-HALF HOURS PER DAY, OUT OF A POSSIBLE 72
 MAN-HOURS PER DAY FOR SHOP 56 PERSONNEL.  I ACCEPT THE TESTIMONY OF MR.
 SCOTT THAT THE SURVEILLANCE WORK WAS AN INSIGNIFICANT PART OF THE
 PIPEFITTER'S DUTY AND TOOK ON THE AVERAGE ONE AND ONE HALF HOURS PER
 DAY.  I REJECT THE TESTIMONY OF MR. DOWDY THAT THIS CHANGE IN THE NPM
 CAUSED A LOSS OF 8 MAN-HOURS PER DAY.
 
    THE COMPLAINANT ALSO CONTENDS THAT AS A RESULT OF THIS CHANGE THE
 SHOP 56 PERSONNEL LOST REGULARLY SCHEDULED WEEKEND OVERTIME.  MR.
 HARRISON, A SHOP 56 WORKER TESTIFIED THAT A PRIMARY EFFECT OF THE CHANGE
 WAS THE ALLEVIATION OF OVERTIME.  HE TESTIFIED THAT HE LOST $1,600.00 A
 YEAR.
 
    EVEN THOUGH THERE WAS A CONSCIOUS EFFORT ON THE PART OF MANAGEMENT TO
 CUT OVERTIME AS AN ECONOMY MEASURE, DOCUMENTARY EVIDENCE ESTABLISHED
 THAT FOR THE NINE SHOP 56 NUCLEAR PIPEFITTERS, OVERTIME FROM JULY 1,
 1977 TO DECEMBER 31, 1977 WAS 717.10 HOURS.  FOR THE PREVIOUS SIX
 MONTHS, FROM JANUARY 15, 1977 TO JUNE 30, 1977 WAS 832.40.  THEREFORE,
 IN THE SECOND HALF OF 1977, IT WAS REDUCED ABOUT 115 HOURS, OR AN
 AVERAGE OF JUST UNDER 13 HOURS PER MAN LESS THAN FOR THE FIRST HALF OF
 THE YEAR.  IT SHOULD ALSO BE NOTED THAT DURING THE LATTER HALF OF THE
 YEAR, MR. HARRISON WORKED 56 MORE HOURS OF OVERTIME THAN IN THE FIRST
 HALF OF THE YEAR.
 
    /1/ THE RESPONDENT FILED AN UNTIMELY ANSWERING BRIEF WHICH HAS NOT
 BEEN CONSIDERED.
 
    /2/ IN DISMISSING THE ALLEGATION OF IMPROPER REFUSAL TO BARGAIN OVER
 THE IMPACT OF THE CHANGE HEREIN, THE AUTHORITY RELIES UPON THE FINDING
 TO THE EFFECT THAT THE EVIDENCE FAILED TO ESTABLISH THAT THE CHANGE HAD
 ANY IMPACT ON UNIT EMPLOYEES.
 
    /3/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224) THE PRESENT CASE IS 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 AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR THE 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 EXECUTIVE ORDER.
 
    /4/ SECTION 19(A) STATES, IN PERTINENT PART:  AGENCY MANAGEMENT SHALL
 NOT--
 
    (1) INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE
 OF THE RIGHTS ASSURED BY THIS ORDER;  OR,
 
    (2) REFUSE TO CONSULT, CONFER, OR NEGOTIATE WITH A LABOR ORGANIZATION
 AS REQUIRED BY THIS ORDER.
 
    /5/ SECTION 12(B) OF THE ORDER STATES, IN PERTINENT PART:
 (M)ANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN ACCORDANCE
 WITH APPLICABLE LAWS AND REGULATIONS .  . . ;
 
    (3) TO RELIEVE EMPLOYEES FROM DUTIES BECAUSE OF LACK OF WORK OR FOR
 OTHER LEGITIMATE REASONS;
 
    (4) TO MAINTAIN THE EFFICIENCY OF THE GOVERNMENT OPERATIONS ENTRUSTED
 TO THEM;
 
    (5) TO DETERMINE THE METHOD, MEANS, AND PERSONNEL BY WHICH SUCH
 OPERATIONS ARE TO BE CONDUCTED.
 
    /6/ THE SURVEILLANCE THAT WAS DELETED INVOLVED MONITORING TANK
 LEVELS, TAKING TANK TEMPERATURES, CHECKING FILTERS AND LINES AND
 MONITORING THE BEACON ON THE TANK TOP ONCE EVERY 24 HOURS.
 
    /7/ THE UNION'S MEMBERS WERE GUARANTEED 40 HOURS WORK PER WEEK BEFORE
 THE CHANGE TO THE MANUAL.  THIS GUARANTY REMAINED AFTER THE CHANGE.