U.S. Department of Air Force, Air Force Systems Command, Electronic Systems Division, Hanscom AFB, Massachusetts (Respondent) and National Federation of Federal Employees, Local 975 (Labor Organization)
[ v05 p637 ]
05:0637(88)CA
The decision of the Authority follows:
5 FLRA No. 88
U.S. DEPARTMENT OF AIR FORCE
AIR FORCE SYSTEMS COMMAND
ELECTRONIC SYSTEMS DIVISION
HANSCOM AFB, MASSACHUSETTS
Respondent
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 975
Labor Organization
Case No. 1-CA-256
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD
NOT ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT, AND
RECOMMENDING THAT THE COMPLAINT BE DISMISSED. NO EXCEPTIONS WERE FILED
BY ANY PARTY.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (5 U.S.C. 7101-7135), THE AUTHORITY HAS REVIEWED THE
RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS
THAT NO PREJUDICIAL 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, IN
THE ABSENCE OF EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION THAT
THE ALLEGED VIOLATION OF THE STATUTE HEREIN BE DISMISSED, AS THE LABOR
ORGANIZATION HAD BEEN GIVEN ADEQUATE ADVANCE NOTICE OF THE PROPOSED
DOWNGRADINGS IN QUESTION AND, DESPITE SUCH NOTICE, FAILED TO REQUEST
BARGAINING UPON THE IMPACT AND/OR IMPLEMENTATION OF SUCH ACTION. CF.
DEPARTMENT OF THE AIR FORCE, SCOTT AIR FORCE BASE, ILLINOIS, 5 FLRA NO.
2(1981). IN SO DOING, THE AUTHORITY NOTES THAT, WHILE THE RESPONDENT
ARGUED THAT THE DOWNGRADES INVOLVED A NON-NEGOTIABLE MATTER BECAUSE
THEY
(1) RELATED TO "CLASSIFICATION OF ANY POSITION" UNDER 5 U.S.C.
7103(A)(14)(B), AND (2) DID NOT HAVE A SUBSTANTIAL IMPACT ON UNIT
EMPLOYEES, THE ADMINISTRATIVE LAW JUDGE FOUND IT UNNECESSARY TO ADDRESS
THAT ARGUMENT.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 1-CA-256 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., MAY 15, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
JAMES A. HARPER, ESQUIRE
JOHN G. ABIZAID, ESQUIRE
FOR THE RESPONDENT
PAUL E. STANZLER, ESQUIRE
PETER F. DOW, ESQUIRE
FOR THE GENERAL COUNSEL
BEFORE: RANDOLPH D. MASON
ADMINISTRATIVE LAW JUDGE
DECISION
THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101, ET SEQ., AS A RESULT OF
AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON APRIL 25, 1980 BY THE
REGIONAL DIRECTOR, FIRST REGION, FEDERAL LABOR RELATIONS AUTHORITY,
BOSTON, MASSACHUSETTS, AGAINST THE U.S. DEPARTMENT OF AIR FORCE, AIR
FORCE SYSTEMS COMMAND, ELECTRONIC SYSTEMS DIVISION, HANSCOM AFB,
MASSACHUSETTS ("RESPONDENT").
THE PRIMARY ISSUE PRESENTED FOR DECISION IN THIS CASE IS WHETHER
RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE BY FAILING
TO NOTIFY THE CHARGING PARTY OF ITS DECISION TO DOWNGRADE TWO GS-13
ELECTRONIC ENGINEER POSITIONS, AND THEREBY REFUSING TO BARGAIN REGARDING
THE IMPACT AND IMPLEMENTATION OF THAT DECISION. RESPONDENT CONTENDS
THAT IT PROVIDED THE UNION WITH ADEQUATE NOTICE OF ITS DECISION PRIOR TO
IMPLEMENTATION. IT IS UNDISPUTED THAT THE UNION NEVER REQUESTED
BARGAINING ON THIS MATTER.
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED AT BOSTON,
MASSACHUSETTS, ON JUNE 13, 1980. ALL PARTIES WERE REPRESENTED BY
COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT
EVIDENCE, AND EXAMINE AND CROSS-EXAMINE WITNESSES. BOTH PARTIES FILED
BRIEFS WHICH HAVE BEEN DULY CONSIDERED. BASED ON THE ENTIRE RECORD
HEREIN, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR,
THE EXHIBITS AND OTHER RELEVANT EVIDENCE ADDUCED AT THE HEARING, I MAKE
THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED
ORDER: /1/
FINDINGS OF FACT
AT ALL TIMES MATERIAL HEREIN, THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 975 ("UNION") HAS BEEN RECOGNIZED BY RESPONDENT AS THE
EXCLUSIVE REPRESENTATIVE FOR AN APPROPRIATE UNIT OF CERTAIN PROFESSIONAL
EMPLOYEES OF THE RESPONDENT.
DURING JUNE OF 1979, WILLIAM J. SMITH, THE LOCAL UNION PRESIDENT, MET
WITH MEMBERS OF MANAGEMENT AND WAS INFORMED THAT RESPONDENT ELECTRONIC
SYSTEMS DIVISION ("ESD") HAD BEEN DIRECTED BY THE AIR FORCE SERVICE
COMMAND TO FORMULATE A HIGH GRADE REDUCTION PLAN WHICH WOULD HAVE THE
EFFECT OF LOWERING AVERAGE GS GRADES BY ATTRITION. SMITH UNDERSTOOD
THAT ENCUMBERED POSITIONS WOULD NOT BE AFFECTED. BY LETTER DATED JULY
30, 1979, RESPONDENT INFORMED SMITH THAT IT WAS THE RESPONSIBILITY OF
EACH OF THE "SHADOW" ORGANIZATIONS TO ASSURE THAT AN ADEQUATE NUMBER OF
VACANT POSITIONS AT THE GS-13 LEVEL WERE IDENTIFIED FOR REDUCTION.
SMITH KNEW THAT THE TECHNICAL OPERATIONS SUBDIVISION ("TO") WAS A SHADOW
ORGANIZATION.
ON JULY 5, 1979, SMITH ATTENDED A MEETING WITH COL. MCMILLAN AND
OTHER OFFICIALS FROM MANAGEMENT WHEREIN THE SUBJECT CONCERNED THE
REORGANIZATION OF THE SURVEILLANCE AND CONTROL SYSTEMS DEPUTE ("OC").
SMITH WAS TOLD THAT THERE WOULD BE NO DOWNGRADING AS A RESULT OF THIS
REORGANIZATION.
PRIOR TO THE FALL OF 1979, THE CLASSIFICATION SECTION OF THE
RESPONDENT'S CIVILIAN PERSONNEL OFFICE MADE A SURVEY TO DETERMINE
WHETHER ANY POSITIONS IN OC SHOULD BE DOWNGRADED. AS A RESULT OF THIS
SURVEY, TWO GS-13 ELECTRONIC ENGINEER POSITIONS IN THE CHARGING PARTY'S
BARGAINING UNIT WERE IDENTIFIED FOR POTENTIAL DOWNGRADING. RESPONDENT
DECIDED THAT THESE POSITIONS SHOULD BE DOWNGRADED TO THE GS-11 LEVEL
AFTER THE PRESENT INCUMBENTS VACATED THEIR POSITIONS. THIS TENTATIVE
DECISION WAS THEN REFERRED TO TO, THE MANPOWER MATRIX ORGANIZATION
CONTROLLING ENGINEERING POSITIONS WITHIN ESD. TO AGREED WITH THE
FINDINGS OF THE CLASSIFICATION SECTION.
ON SEPTEMBER 5, 1979, THE DEPUTY FOR OC ISSUED A LETTER TO VARIOUS
SUBDIVISIONS OF ESD CONCERNING THE ABOVE-MENTIONED "REORGANIZATION." OC
PROPOSED, INTER ALIA, TO COMBINE THE OTH ENGINEERING DIVISION (OCSE)
WITH THE OTH TEST DIVISION (OCST) TO FORM A NEW OTH ENGINEERING AND TEST
DIVISION (OCUE). ONE OF THE ATTACHMENTS TO THIS LETTER LISTED THE EIGHT
INDIVIDUAL EMPLOYEES WHO WOULD CONSTITUTE THE PROPOSED OCUE DIVISION, IN
PART, IN THE FOLLOWING MANNER: (TABLE OMITTED)
WITH REGARD TO THE TWO "SCHEDULED DOWNGRADE" ITEMS, THE LETTER HAD
PREVIOUSLY STATED IN PARAGRAPH SIX THAT "THE ONLY REDUCTIONS IN
AUTHORIZED GRADE SHOWN ARE THOSE ALREADY PROPOSED BY THE TO MANPOWER
PLAN."
A COPY OF THE ABOVE SEPTEMBER 5 LETTER WAS GIVEN TO A NAGE
REPRESENTATIVE WHO THEREAFTER GAVE A COPY OF THE LETTER TO WILLIAM
SMITH, PRESIDENT OF THE CHARGING PARTY.
SUBSEQUENTLY ON SEPTEMBER 28 MANAGEMENT HELD A MEETING WITH SMITH
(PRESIDENT OF THE CHARGING PARTY UNION) AND JOE SPIRITO (A NAGE
REPRESENTATIVE). PROFESSIONAL EMPLOYEES AT THE ACTIVITY WERE
REPRESENTED BY SMITH'S UNION AND NON-PROFESSIONAL EMPLOYEES WERE
REPRESENTED BY NAGE. REPRESENTATIVES OF MANAGEMENT AT THIS MEETING
INCLUDED COL. MCMILLAN AND ROBERT T. KENNEDY, A LABOR RELATIONS
SPECIALIST AT HANSCOM AFB. ONE PURPOSE OF THE MEETING WAS TO DISCUSS
THE AFOREMENTIONED REORGANIZATION OF OC AND TO MAKE IT CLEAR THAT THE
TWO DOWNGRADING ACTIONS MENTIONED IN THE SEPTEMBER 5 LETTER WERE
PROPOSED BY, AND WITHIN THE JURISDICTION OF, TO AND WERE NOT A RESULT OF
THE REORGANIZATION OF OC.
AT THE MEETING MCMILLAN SPECIFICALLY TOLD SMITH THAT THE TWO
DOWNGRADING ACTIONS HAD NOTHING TO DO WITH THE OC REORGANIZATION AND HAD
BEEN PROPOSED BY TO. HE MADE IT CLEAR THAT OC HAD NO AUTHORITY TO
DOWNGRADE POSITIONS. IN RESPONSE TO THIS, SMITH MADE SOME "VIOLENT
REMARKS" ABOUT TO: MCMILLAN TOLD SMITH THAT THE LATTER SHOULD TAKE THE
MATTER UP WITH TO. /2/ ACCORDING TO KENNEDY'S CONTEMPORANEOUS, CREDIBLE
NOTES OF THIS MEETING, SMITH STATED THAT THE DOWNGRADING QUESTION WAS
ONE THAT HE SHOULD TAKE UP WITH TO AND THAT HE INTENDED TO DO SO.
IN ADDITION TO THE ABOVE CONVERSATION, MR. SPIRITO FROM NAGE ASKED
MCMILLAN TO RESPOND TO A QUESTIONNAIRE REQUESTING SPECIFIC INFORMATION
PERTAINING TO THE OC REORGANIZATION. THE FORM WAS INTENDED TO ELICIT
INFORMATION REGARDING THE EFFECT THAT THE REORGANIZATION WOULD HAVE UPON
EACH OF THE EMPLOYEES IN OC. NAGE REQUESTED, IN PART, THAT EACH
EMPLOYEE IN EACH SUBDIVISION BE LISTED BY NAME, OFFICE CODE, OCCUPATION,
RANK OR GRADE, JOB FUNCTION CODE, AND PROPOSED CHANGE. SMITH REQUESTED
THAT A COPY OF RESPONDENT'S REPLY TO NAGE BE SENT TO HIM BECAUSE IT
WOULD ANSWER HIS OWN QUESTIONS AS WELL. SMITH HAD HELPED DRAFT THE
QUESTIONNAIRE.
MCMILLAN RESPONDED TO NAGE'S SEPTEMBER 28 REQUEST FOR ADDITIONAL
DETAILS REGARDING THE REORGANIZATION IN A LETTER DATED OCTOBER 24, 1979.
A COPY OF THE LETTER WAS SENT TO SMITH. FIRST, THE ATTACHMENT TO THE
LETTER LISTED THE NAMES OF ALL EMPLOYEES "BEFORE THE REORGANIZATION"
UNDER THEIR RESPECTIVE SUBDIVISIONS WITHIN OC. EVERY EMPLOYEE ON THE
LIST WAS GIVEN HIS OWN INDIVIDUAL "CROSS KEY NUMBER." THE CROSS KEY
NUMBERS WERE USED THROUGHOUT THE LETTER TO REFER TO INDIVIDUAL EMPLOYEES
WITHOUT NAMING THEM. AFTER THE CROSS KEY NUMBER, EACH EMPLOYEE ON THE
ABOVE LIST WAS DESCRIBED BY HIS POSITION NUMBER, NAME, JOB FUNCTION,
RANK OR GS LEVEL, AND JOB FUNCTION CODE. SECOND, THE ATTACHMENT
INCLUDED CLEARLY DEMARCATED LISTS OF THE EMPLOYEES AND THEIR LOCATION
AFTER THE REORGANIZATION. THUS AN INDIVIDUAL WISHING TO KNOW WHICH
EMPLOYEES WOULD BE LOCATED IN THE POST-REORGANIZATION OTH ENGINEERING
AND TEST DIVISION (OCUE), I.E. THE DIVISION CONTAINING THE PROJECTED
DOWNGRADINGS SET FORTH IN THE SEPTEMBER 5 LETTER, WOULD HAVE FOUND THE
FOLLOWING:
OCUE-- OTH ENGINEERING & TEST DIVISION (TABLE OMITTED)
THUS IT WAS CLEAR THAT OCUE WOULD INCLUDE THREE GS-13'S, ALL OF WHOM
WERE ELECTRONIC ENGINEERS, I.E. PROFESSIONALS WITHIN THE BARGAINING UNIT
OF THE CHARGING PARTY. THE NAMES OF THOSE INDIVIDUALS COULD EASILY BE
OBTAINED BY (A) REFERRING TO THE CROSS KEY NUMBERS IN THE LEFT HAND
COLUMN (22, 23, AND 49), AND (B) REFERRING TO THOSE CROSS KEY NUMBERS IN
THE ABOVE-MENTIONED "LIST OF NAMES BEFORE THE REORGANIZATION." REFERENCE
TO THE LATTER WOULD HAVE REVEALED THAT OCUE WOULD CONTAIN THE FOLLOWING
THREE GS-13 ENGINEERS: (TABLE OMITTED)
IT WILL BE RECALLED, AT THIS POINT, THAT THE SEPTEMBER 5 LETTER
ANNOUNCED THAT TWO GS-13 POSITIONS PLANNED FOR OCUE HAD BEEN SCHEDULED
BY TO TO BE DOWNGRADED IN FEBRUARY OF 1980 TO THE GS-11 LEVEL. THE
POSITION NUMBERS FOR THOSE TWO POSITIONS HAD BEEN DESCRIBED AS "TDE042"
AND "TDE513." THE "D" IN THOSE POSITION NUMBERS, AS IN THE CASE OF ALL
POSITION NUMBERS LISTED IN THE SEPTEMBER 5 LIST, WAS A TYPOGRAPHICAL
ERROR AND SHOULD HAVE BEEN AN "O". THIS DISCREPANCY SHOULD HAVE BEEN
APPARENT TO ANYONE COMPARING THE SEPTEMBER 5 LIST WITH THE OCTOBER 24
LIST. IN ANY EVENT, I FIND THAT THE POSITIONS OCCUPIED BY GEDAMINSKI
AND SHEA WERE THE ONES TARGETED FOR POTENTIAL DOWNGRADING. AT THE VERY
LEAST, THE CHARGING PARTY SHOULD HAVE BEEN AWARE, AFTER READING THE
OCTOBER 24 LETTER, THAT THE TWO POSITIONS SCHEDULED FOR DOWNGRADING WERE
WITHIN ITS BARGAINING UNIT AND WERE OCCUPIED BY TWO OF THE FOLLOWING
INDIVIDUALS: NOBLE, SHEA OR GEDAMINSKI. BY CONTACTING THOSE
INDIVIDUALS, THE UNION WOULD HAVE DISCOVERED THAT GEDAMINSKI AND SHEA
BOTH PLANNED TO RETIRE IN ABOUT JANUARY OF 1980. THUS, SINCE THE
RESPONDENT HAD ANNOUNCED ITS INTENTION TO DOWNGRADE POSITIONS ONLY WHEN
THEY BECAME VACANT, IT WOULD HAVE BECOME QUITE OBVIOUS THAT THOSE TWO
POSITIONS HAD BEEN TARGETED FOR DOWNGRADING. MOREOVER, SMITH COULD HAVE
EASILY CONFIRMED THIS BY ASKING TO.
ON JANUARY 28, 1980, SMITH FILED THE CHARGE AGAINST THE RESPONDENT
WHICH INITIATED THE INSTANT PROCEEDING. SMITH NEVER REQUESTED
BARGAINING WITH RESPECT TO THE PROPOSED DOWNGRADINGS.
SUBSEQUENTLY, GEDAMINSKI AND SHEA RETIRED AND, AFTER CONDUCTING
ANOTHER INVESTIGATION AS TO THE APPROPRIATENESS OF THE PROPOSED
DOWNGRADINGS, RESPONDENT MADE FINAL DECISIONS TO DOWNGRADE THESE TWO
VACANT POSITIONS ON FEBRUARY 5 AND MARCH 11, 1980, RESPECTIVELY.
CONCLUSIONS OF LAW
IT IS WELL ESTABLISHED THAT AN AGENCY, PRIOR TO EXERCISING A RESERVED
MANAGEMENT RIGHT, MUST GIVE THE UNION ADEQUATE NOTICE OF ITS DECISION SO
THAT THE UNION WILL HAVE A MEANINGFUL OPPORTUNITY TO BARGAIN ON IMPACT
AND IMPLEMENTATION PRIOR TO THE ACTUAL EFFECTUATION OF THE DECISION.
FEDERAL RAILROAD ADMINISTRATION, 4 A/SLMR 497, A/SLMR NO. 418(1974);
JACKSONVILLE DISTRICT, INTERNAL REVENUE SERVICE, JACKSONVILLE, FLORIDA,
7 A/SLMR 758, A/SLMR NO. 893(1977). RESPONDENT TAKES THE POSITION THAT
ADEQUATE NOTICE OF A DECISION TO DOWNGRADE TWO GS-13 ENGINEERING
POSITIONS (WHEN THEY BECAME VACANT) WAS PROVIDED TO SMITH, THE UNION
PRESIDENT, AND THAT THE LATTER FAILED TO REQUEST NEGOTIATIONS PRIOR TO
IMPLEMENTATION OF THE DECISION TO DOWNGRADE. CLEARLY WHERE ADEQUATE
NOTICE IS GIVEN, THE UNION IS OBLIGED TO REQUEST NEGOTIATIONS IN ORDER
TO GIVE RISE TO THE RESPONDENT'S OBLIGATION TO BARGAIN. INTERNAL
REVENUE SERVICE (IRS) AND BROOKLYN DISTRICT OFFICE, IRS, 2 FLRA NO.
76(1980). SINCE THE GENERAL COUNSEL CONCEDES THAT NO NEGOTIATIONS WERE
REQUESTED, IT IS ONLY NECESSARY TO DETERMINE WHETHER ADEQUATE NOTICE WAS
ACTUALLY GIVEN.
CLEARLY THE AGENCY MUST GIVE SPECIFIC NOTICE TO THE UNION OF ANY
INTENDED CHANGE. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
INDIANAPOLIS, INDIANA, 7 A/SLMR 844, A/SLMR NO. 909(1977). THUS A MERE
PASSING REFERENCE TO A GENERAL SUBJECT MATTER WITHOUT MENTIONING ANY
CONTEMPLATED CHANGE RELATING TO THIS MATTER DOES NOT CONSTITUTE ADEQUATE
NOTICE. JACKSONVILLE DISTRICT, SUPRA.
AT THE SEPTEMBER 28, 1979, MEETING, SMITH SHOWED COL. MCMILLAN OF OC
THE SEPTEMBER 5 LETTER CONCERNING TWO PROPOSED DOWNGRADINGS. SMITH WAS
SPECIFICALLY TOLD BY COL. MCMILLAN THAT THE TWO DOWNGRADINGS (PROJECTED
FOR FEBRUARY 1980 IN THE PROPOSED OCUE DIVISION) "WILL OCCUR" (TR.
43:13) BUT THAT THESE DOWNGRADINGS WOULD BE THE RESULT OF ACTIONS TAKEN
BY ANOTHER DIVISION (TO) AND WERE UNRELATED TO THE REORGANIZATION BY OC.
MCMILLAN TOLD SMITH THAT HE SHOULD TAKE THE MATTER UP WITH TO AND SMITH
SAID HE INTENDED TO DO SO. /3/ THE SEPTEMBER 5 LETTER REFERRED TO THESE
POSITIONS BY THEIR TO POSITION NUMBERS; HOWEVER, SMITH MIGHT HAVE HAD
TROUBLE IDENTIFYING THE INDIVIDUALS OCCUPYING THOSE SLOTS DUE TO A
TYPOGRAPHICAL ERROR.
LATER, ON OR ABOUT OCTOBER 24, 1979, MCMILLAN PROVIDED SMITH WITH A
DETAILED LIST OF ALL EMPLOYEES IN OC WHICH DISCLOSED HOW EACH EMPLOYEE
WOULD BE AFFECTED BY THE REORGANIZATION. SMITH HAD ANTICIPATED THAT THE
LIST WOULD ANSWER HIS QUESTIONS ABOUT THE DOWNGRADINGS. THE LIST, WHEN
READ TOGETHER WITH THE SEPTEMBER 5 LETTER, PROVIDED SMITH WITH THE
FOLLOWING ADDITIONAL INFORMATION ABOUT THE PROPOSED DOWNGRADINGS: (1)
THE POSITIONS WERE TWO ELECTRONIC ENGINEER POSITIONS IN THE PROPOSED
EIGHT-PERSON OCUE DIVISION AND AS SUCH, WERE WITHIN THE BARGAINING UNIT
REPRESENTED BY THE CHARGING PARTY; (2) THE POSITIONS WERE DUE TO BE
DOWNGRADED FROM GS-13 TO GS-11 IN FEBRUARY OF 1980; AND (3) THE
POSITIONS WERE CURRENTLY OCCUPIED BY TWO OF THREE NAMED INDIVIDUALS. IF
HE HAD INFORMED EITHER THESE INDIVIDUALS OR THE TO DIVISION OF HIS
FINDINGS, SMITH WOULD HAVE DISCOVERED THAT TWO OF THESE MEN WERE
PLANNING TO RETIRE IN JANUARY OF 1980 AND THAT THESE WERE THE TWO
POSITIONS TARGETED FOR DOWNGRADING.
I MUST CONCLUDE AND HOLD THAT RESPONDENT NOTIFIED THE UNION OF THE
PROPOSED DOWNGRADINGS WITH SUFFICIENT SPECIFICITY TO ENABLE IT TO
REQUEST AND ENGAGE IN MEANINGFUL NEGOTIATIONS ON IMPACT AND
IMPLEMENTATION PRIOR TO EFFECTUATION OF THE DECISION. SINCE THE UNION
DID NOT REQUEST SUCH BARGAINING, IT CANNOT BE SAID THAT RESPONDENT
VIOLATED SECTION 7116(A)(5) AND (1) OF THE STATUTE. /4/ I RECOMMEND
THAT THE AUTHORITY ADOPT THE FOLLOWING ORDER:
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 1-CA-256 BE, AND
IT HEREBY IS, DISMISSED.
RANDOLPH D. MASON
ADMINISTRATIVE LAW JUDGE
DATED: SEPTEMBER 17, 1980
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ THE TRANSCRIPT IS HEREBY CORRECTED TO REFLECT THE PROPER SPELLING
OF MY NAME, AND THE WORD "UNPROFESSIONALS" (TR. 38:9) IS CHANGED TO READ
"ALL PROFESSIONALS." THE GENERAL COUNSEL'S MOTION TO MAKE OTHER CHANGES
IN THE TRANSCRIPT IS HEREBY DENIED.
/2/ MCMILLAN KNEW, AND REASONABLY ASSUMED THAT SMITH KNEW, THAT THE
TWO POSITIONS TARGETED FOR DOWNGRADING WERE PROFESSIONAL EMPLOYEE
POSITIONS WITHIN SMITH'S BARGAINING UNIT. IN THIS REGARD, THE SEPTEMBER
5 LETTER IDENTIFIED THE POSITIONS WITH THE AIR FORCE SPECIALITY CODE
2825, THE CODE FOR ELECTRONIC ENGINEERS. BOTH MCMILLAN AND SMITH WERE
ELECTRONIC ENGINEERS WITH THIS AFSC CODE. ALSO, SMITH'S "VIOLENT"
REACTION GAVE THE IMPRESSION THAT SMITH KNEW HIS UNIT POSITIONS WERE
AFFECTED.
/3/ IN REACHING THESE FINDINGS, I HAVE CHOSEN TO DISCREDIT MOST OF
SMITH'S TESTIMONY; HIS MEMORY WAS FAULTY AND MUCH OF HIS TESTIMONY WAS
VAGUE, INCONSISTENT, AND EVASIVE. RESPONDENT'S MOTION TO REOPEN THE
HEARING FOR THE PURPOSE OF MAKING AN ADDITIONAL ATTACH ON SMITH'S
CREDIBILITY IS DENIED AND THE EXHIBITS ATTACHED THERETO ARE REJECTED.
/4/ HAVING REACHED THIS CONCLUSION, I NEED NOT ADDRESS RESPONDENT'S
ARGUMENT THAT THIS WAS A NONNEGOTIABLE MATTER BECAUSE IT (1) RELATED TO
"CLASSIFICATION OF ANY POSITION" UNDER 5 U.S.C. 7103(A)(14)(B) AND (2)
DID NOT HAVE A SUBSTANTIAL IMPACT ON UNIT EMPLOYEES.