Department of Energy, Bonneville Power Administration, Portland, Oregon (Activity-Petitioner) and Columbia Power Trades Council, AFL-CIO (Labor Organization)  

 2 FLRA No. 81
 
 DEPARTMENT OF ENERGY,
 BONNEVILLE POWER ADMINISTRATION,
 PORTLAND, OREGON
 Activity-Petitioner
 
 and
 
 COLUMBIA POWER TRADES
 COUNCIL, AFL-CIO
 Labor Organization
 
                                            Assistant Secretary
                                            Case No. 71-4770(AC)
 
                  DECISION AND ORDER AMENDING RECOGNITION
 
    UPON A PETITION FOR AMENDMENT OF RECOGNITION DULY FILED UNDER SECTION
 6 OF EXECUTIVE ORDER 11491, AS AMENDED, A HEARING WAS HELD BEFORE
 HEARING OFFICER DANIEL P. KRAUS ON DECEMBER 1, 1978.  THEREAFTER, ON
 JULY 19, 1979, THE HEARING WAS RECONVENED BEFORE HEARING OFFICER ROBERT
 G. MAYBERRY.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, 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 RULES AND REGULATIONS (45 F.R. 3482, JANUARY 17, 1980).  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 RULES AND
 REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
 REVIEWED THE RULINGS OF THE HEARING OFFICERS MADE AT THE HEARINGS AND
 FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE HEREBY
 AFFIRMED.
 
    UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING A BRIEF FILED BY THE
 DEPARTMENT OF ENERGY, BONNEVILLE POWER ADMINISTRATION (ACTIVITY), THE
 AUTHORITY FINDS:  /1/
 
    THE ACTIVITY FILED AN AMENDMENT OF CERTIFICATION (AC) PETITION
 SEEKING TO AMEND THE RECOGNITION GRANTED THE COLUMBIA POWER TRADES
 COUNCIL (COUNCIL) BY CHANGING THE NAME OF THE ACTIVITY FROM BONNEVILLE
 POWER ADMINISTRATION, DEPARTMENT OF INTERIOR, TO BONNEVILLE POWER
 ADMINISTRATION, DEPARTMENT OF ENERGY.  THE CURRENT COLLECTIVE BARGAINING
 AGREEMENT BETWEEN THE ACTIVITY AND THE COUNCIL DATES FROM 1945 AND
 CONTAINS THE ACTIVITY'S RECOGNITION OF THE COUNCIL AS THE EXCLUSIVE
 REPRESENTATIVE OF THE ACTIVITY'S HOURLY EMPLOYEES.  THE COUNCIL'S UNIT
 OF EXCLUSIVE RECOGNITION HAS NOT BEEN CERTIFIED UNDER THE PROCEDURES OF
 EXECUTIVE ORDER 11491, AS AMENDED.  THE COUNCIL ASSERTS THAT THE AC
 PETITION AND THE HEARINGS IN THIS MATTER ARE IN VIOLATION OF THE SAVINGS
 CLAUSES CONTAINED IN EXECUTIVE ORDER 10988, /2/ EXECUTIVE ORDER 11491,
 AS AMENDED, /3/ AND THE STATUTE /4/ WHICH PRESERVE THE CONTINUITY OF THE
 PARTIES' NEGOTIATED AGREEMENT AND THE RECOGNITION CONTAINED THEREIN.
 THE COUNCIL ARGUES THAT NO HARM WOULD ENSUE IF THE PETITION WERE DENIED,
 BECAUSE THE PARTIES ALREADY HAVE AGREED TO ALTER THEIR NEGOTIATED
 AGREEMENT WHEREIN THE RECOGNITION IS CONTAINED BY INCLUDING THE NAME
 CHANGE, AND BECAUSE DENIAL OF THE PETITION WOULD MAINTAIN THE EXISTING
 COLLECTIVE BARGAINING RELATIONSHIP WHICH IS THE PURPOSE OF THE SAVINGS
 CLAUSES.
 
    THE ACTIVITY WAS ESTABLISHED BY THE BONNEVILLE PROJECT ACT OF 1937,
 AS AMENDED, 16 U.S.C. 832, 832A, 832B-8321.  UNDER THAT ACT, THE OFFICE
 OF ADMINISTRATOR OF THE ACTIVITY WAS CONSTITUTED AN OFFICE IN THE
 DEPARTMENT OF THE INTERIOR AND WAS UNDER THE JURISDICTION AND CONTROL OF
 THE SECRETARY OF THE INTERIOR.  IN ACCORDANCE WITH THE ACT, THE
 ADMINISTRATOR OF THE ACTIVITY WAS APPOINTED BY THE SECRETARY OF THE
 INTERIOR, AND HIS FUNCTIONS UNDER THE ACT COULD BE EXERCISED BY THE
 SECRETARY OF THE INTERIOR.
 
    WHEN THE DEPARTMENT OF ENERGY WAS CREATED IN 1977, THE DEPARTMENT OF
 ENERGY ORGANIZATION ACT, 42 U.S.C. 7101-7352, 7152, TRANSFERRED TO THE
 SECRETARY OF ENERGY ALL THE FUNCTIONS OF THE SECRETARY OF THE INTERIOR
 AND OFFICERS AND COMPONENTS OF THE DEPARTMENT OF THE INTERIOR WITH
 RESPECT TO THE BONNEVILLE POWER ADMINISTRATION.  THE ACTIVITY HEREIN WAS
 PRESERVED AS A SEPARATE ENTITY WITH THE DEPARTMENT OF ENERGY, HEADED BY
 AN ADMINISTRATOR APPOINTED BY THE SECRETARY OF ENERGY.  THIS TRANSFER
 HAS NOT EFFECTED ANY CHANGE IN THE FUNCTION, PURPOSE, OR MISSION OF THE
 ACTIVITY.  DURING THE 1979 CONTRACT NEGOTIATIONS BETWEEN THE ACTIVITY
 AND THE COUNCIL, TENTATIVE AGREEMENT WAS REACHED TO CHANGE REFERENCES TO
 "DEPARTMENT OF THE INTERIOR" IN THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT TO "DEPARTMENT OF ENERGY," WHERE APPLICABLE.
 
    AT THE HEARING IN THIS MATTER, THE PARTIES STIPULATED THAT THE
 COUNCIL'S UNIT CONTINUES TO BE APPROPRIATE, AND THAT THERE IS NO
 QUESTION CONCERNING REPRESENTATION CURRENTLY PENDING.  FURTHER, THE
 PARTIES AGREE THAT GRANTING THE PETITION FOR AMENDMENT OF RECOGNITION
 WOULD NOT CHANGE THE SIZE OR COMPOSITION OF THE BARGAINING UNIT.
 
    UNDER ALL OF THE FOREGOING CIRCUMSTANCES, THE AUTHORITY CONCLUDES
 THAT IT IS NOT PRECLUDED BY THE SAVING CLAUSES OF EXECUTIVE ORDERS 10988
 AND 11491, AS AMENDED, OR THE STATUTE, FROM AMENDING THE RECOGNITION, AS
 REQUESTED.  THOSE PROVISIONS WERE INTENDED TO MAINTAIN THE VIABILITY OF
 PROVISIONS IN AN AGREEMENT ENTERED INTO BEFORE JANUARY 17, 1962, WHICH
 WOULD OTHERWISE BE LIMITED OR PROSCRIBED BY CONSTRAINTS SUBSEQUENTLY
 IMPOSED.  /5/ AN AC PETITION CANNOT ALTER THE BARGAINING RELATIONSHIP
 BETWEEN PARTIES OR THE VIABILITY OF PROVISIONS IN THEIR COLLECTIVE
 BARGAINING AGREEMENT.  RATHER, IT IS AN APPROPRIATE VEHICLE TO CONFORM A
 RECOGNITION TO EXISTING CIRCUMSTANCES RESULTING FROM SUCH NOMINAL OR
 TECHNICAL CHANGES AS A CHANGE IN THE NAME OF THE EXCLUSIVE
 REPRESENTATIVE OR A CHANGE IN THE NAME OR LOCATION OF THE AGENCY OR
 ACTIVITY.
 
    NOR DOES THE FACT THAT THE PARTIES HAVE AGREED TO ALTER THEIR
 NEGOTIATED AGREEMENT BY INCLUDING THE ACTIVITY'S NAME CHANGE WARRANT
 DISMISSAL OF THE AC PETITION.  AMENDMENT OF RECOGNITION BY MUTUAL
 AGREEMENT OF THE PARTIES IS WITHOUT LEGAL SIGNIFICANCE IF DONE APART
 FROM THE POLICIES, REGULATIONS, AND PROCEDURES ESTABLISHED BY THE
 AUTHORITY.  THUS, THE ONLY MEANS BY WHICH THE SUBJECT RECOGNITION COULD
 BE AMENDED IS BY AN AC PETITION.
 
    ACCORDINGLY, BECAUSE THE CASE INVOLVES ONLY A NOMINAL OR TECHNICAL
 CHANGE WHICH RESULTED FROM THE TRANSFER OF THE ACTIVITY FROM THE
 DEPARTMENT OF THE INTERIOR TO THE DEPARTMENT OF ENERGY, THE AUTHORITY
 SHALL ORDER THAT THE COUNCIL'S EXCLUSIVE RECOGNITION BE AMENDED TO
 CONFORM TO THE EXISTING CIRCUMSTANCES RESULTING FROM THE CHANGE IN THE
 DESIGNATION OF THE ACTIVITY.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE EXCLUSIVE RECOGNITION GRANTED BY THE
 ACTIVITY TO THE COLUMBIA POWER TRADES COUNCIL, AFL-CIO, AND CONTAINED IN
 THE PARTIES' CURRENT COLLECTIVE BARGAINING AGREEMENT, FIRST NEGOTIATED
 MAY 2, 1945, BE, AND IT HEREBY IS, AMENDED BY SUBSTITUTING THEREIN AS
 THE DESIGNATION OF THE ACTIVITY:  "BONNEVILLE POWER ADMINISTRATION,
 DEPARTMENT OF ENERGY."
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 12, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ 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.0. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL 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
 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.
 
    /2/ SECTION 15 OF EXECUTIVE ORDER 10988 PROVIDED:
 
    NOTHING IN THIS ORDER SHALL BE CONSTRUED TO ANNUL OR MODIFY, OR TO
 PRECLUDE THE RENEWAL OR
 
    CONTINUATION OF, ANY LAWFUL AGREEMENT HERETOFORE ENTERED INTO BETWEEN
 ANY AGENCY AND ANY
 
    REPRESENTATIVE OF ITS EMPLOYEES.  NOR SHALL THIS ORDER PRECLUDE ANY
 AGENCY FROM CONTINUING TO
 
    CONSULT OR DEAL WITH ANY REPRESENTATIVE OF ITS EMPLOYEES OR OTHER
 ORGANIZATION PRIOR TO THE
 
    TIME THAT THE STATUS AND REPRESENTATIVE RIGHTS OF SUCH REPRESENTATIVE
 OR ORGANIZATION ARE
 
    DETERMINED IN CONFORMITY WITH THIS ORDER.
 
    /3/ SECTION 24 OF EXECUTIVE ORDER 11491, AS AMENDED, PROVIDES, IN
 PERTINENT PART:
 
    THIS ORDER DOES NOT PRECLUDE-- (1) THE RENEWAL OR CONTINUATION OF A
 LAWFUL AGREEMENT
 
    BETWEEN AN AGENCY AND A REPRESENTATIVE OF ITS EMPLOYEES ENTERED INTO
 BEFORE THE EFFECTIVE DATE
 
    OF EXECUTIVE ORDER NO. 10988.  . . .
 
    /4/ SECTION 7135 OF THE STATUTE PROVIDES, IN PERTINENT PART:
 
    (A) NOTHING CONTAINED IN THIS CHAPTER SHALL PRECLUDE-- (1) THE
 RENEWAL OR CONTINUATION OF
 
    AN EXCLUSIVE RECOGNITION, CERTIFICATION OF AN EXCLUSIVE
 REPRESENTATIVE, OR A LAWFUL AGREEMENT
 
    BETWEEN AN AGENCY AND AN EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES,
 WHICH IS ENTERED INTO
 
    BEFORE THE EFFECTIVE DATE OF THIS CHAPTER.  . . .
 
    /5/ CF. INTERPRETATION OF THE ORDER, FLRC NO. 78P-2 (AUGUST 9, 1978).