[ v12 p122 ]
12:0122(33)CA
The decision of the Authority follows:
12 FLRA No. 33
DEPARTMENT OF THE NAVY
HEADQUARTERS, NAVAL
MATERIAL COMMAND
Respondent
and
NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
Charging Party
Case No. 3-CA-761
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices and recommending that it be ordered to
cease and desist therefrom and take certain affirmative action. The
Judge further found that the Respondent had not engaged in certain other
alleged unfair labor practices and recommended dismissal of the
complaint with respect to them. Exceptions to the Judge's Decision were
filed by the Respondent, the Charging Party and the General Counsel.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendations.
In adopting the Judge's finding that employees Paul E. Rasmussen and
William J. Hancock were not "management officials" within the meaning of
section 7103(a)(11) of the Statute, the Authority relies upon its
decision in Department of the Navy, Automatic Data Processing Selection
Office, 7 FLRA No. 24 (1981), issued after the Judge's Decision herein,
which interpreted the statutory definition of "management official" to
include those individuals who: (1) create, establish or prescribe
general principles, plans or courses of action for an agency; (2)
decide upon or settle upon general principles, plans or courses of
action for an agency; or (3) bring about or obtain a result as to the
adoption of general principles, plans or courses of action for an
agency. The Authority concludes that the individuals in question are
not involved in any of the foregoing duties, but rather, as found by the
Judge, are technical experts providing professional resource information
in the Fleet Readiness Branch.
ORDER /1/
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Department of the Navy, Headquarters, Naval
Material Command, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing employees Paul E.
Rasmussen and William J. Hancock by directing them not to act on behalf
of, or render assistance to, any labor organization because they have
been designated as management officials for purposes of coverage under
the merit pay provisions of the Civil Service Reform Act of 1978.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to carry out the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Rescind all orders directing employees Paul E. Rasmussen and
William J. Hancock not to act on behalf of, or render assistance to, any
labor organization on the ground that they are management officials for
purposes of coverage under the merit pay provisions of the Civil Service
Reform Act of 1978.
(b) Post at its facilities in Arlington, Virginia, copies of the
attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms they shall be signed by an
appropriate official of the Department of the Navy, Headquarters, Naval
Material Command, and shall be posted and maintained for 60 consecutive
days thereafter in conspicuous places, including all bulletin boards and
other places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said Notices are not
altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, 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.
Issued, Washington, D.C., June 2, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT interfere with, restrain or coerce employees Paul E.
Rasmussen and William J. Hancock by directing them not to act on behalf
of, or render assistance to, any labor organization because they have
been designated as management officials for purposes of coverage under
the merit pay provisions of the Civil Service Reform Act of 1978. WE
WILL NOT, in any like or related manner, interfere with, restrain or
coerce any of our employees in the exercise of their rights assured by
the Statute. WE WILL rescind all orders directing employees Paul E.
Rasmussen and William J. Hancock not to act on behalf of, or render
assistance to, any labor organization on the ground that they are
management officials for purposes of coverage under the merit pay
provisions of the Civil Service Reform Act of 1978.
. . . Activity
Dated: . . . By: (Signature) (Title) 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 its provisions,
they may communicate directly with the Regional Director for Region III,
Federal Labor Relations Authority, whose address is 1111 18th St., NW.,
Room 700, P.O. Box 33758, Washington, D.C. 20033-0758 and whose
telephone number is: (202) 653-8507.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 3-CA-761
Herbert L. Zipperian, Esq.
For the Respondent
Sharon Prost, Esquire
Peter Robb, Esquire
For the General Counsel
Bruce P. Heppen, Esquire
For the Charging Party
Before: LOUIS SCALZO
Administrative Law Judge
DECISION
Statement of the Case
This case arose as an unfair labor practice proceeding under the
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. 7101, et seq., (hereinafter referred to as "the
Statute") and the Rules and Regulations issued thereunder.
On June 25, 1980, an unfair labor practice complaint was filed by the
Regional Director, Region III, Federal Labor Relations Authority,
Washington, D.C., against the Department of the Navy, Headquarters,
Naval Material Command (Respondent), on behalf of the National
Federation of Federal Employees (Charging Party or Union). An amended
complaint was filed on October 8, 1980, and on January 6, 1981, the
Regional Director entered an order withdrawing paragraphs six and ten of
the amended complaint, and the reference to paragraph six contained in
paragraph nine of the amended complaint. The amended complaint, as
modified by the January 6, 1981 order, alleged that the Respondent
through the conduct of its agents violated Sections 7116(a)(1)(2) and
(8) of the Statute by issuing memoranda to Mr. William J. Hancock and
Mr. Paul E. Rasmussen on October 15, 1979, for the purpose of notifying
them that their positions were managerial; by advising them on or about
November 1, 1979, that as management officials they were not authorized
to act on behalf of the Union in any capacity; and by notifying them in
November 8, 1979 memorandums that they should discontinue any activities
involving assistance to a labor organization.
Counsel for the Respondent argues that both Mr. Rasmussen and Mr.
Hancock were, at all times material, management officials within the
meaning of Section 7103(a)(11) of the Statute, and that since neither
may be classified as an "employee" within the purview of Section
7103(a)(2) of the Statute, the protective provisions of the statute may
not be extended to them or the Union.
All parties were represented by counsel and were afforded full
opportunity to be heard, adduce relevant evidence, and examine and
cross-examine witnesses. Post-hearing briefs were received from counsel
of record. These have been duly considered. Based upon the entire
record herein, including my observations of the witnesses and their
demeanor, the exhibits and other relevant evidence adduced at the
hearing, and the briefs, I make the following findings of fact,
conclusions and recommendations.
Findings of Fact
The record disclosed that the Respondent employs about 500 civilian
in Arlington, Virginia. There is currently no labor organization ,
certified or recognized to represent civilian employees employed by the
Respondent. In the fall of 1979, employees of the Respondent began
active organizing efforts on behalf of the Union. These efforts
included conducting meetings, preparation of letters to employees, and
circulating petitions. Both Mr. Rasmussen and Mr. Hancock were primary
participants in these organizing activities. They were then, and on the
date of the hearing, both assigned to a segment of the Office of the
Assistant Deputy Chief Naval Material for Fleet Readiness and Support,
an organizational component under the supervision of the Office of the
Deputy Chief of Naval Material Logistics. The latter was, in turn, a
component under the jurisdiction of the Chief of Naval Material, a key
element under the jurisdiction of the Chief of Naval Operations.
By memorandum dated October 15, 1979, Mr. Rasmussen and Mr. Hancock
were informed by Mr. Allen I. Barke, Respondent's Civilian Personnel
Officer, that they had been designated as management officials under the
merit pay provisions of the Civil Service Reform Act of 1978. /2/ The
record revealed evidence that both Rasmussen and Hancock always
considered themselves to be experts and specialists rather than
management officials; and further that prior to the fall of 1979, both
had, for training purposes, been classified by a representative of the
Respondent as "specialists" rather than as "administrative clerical" or
"management/supervisory." (Tr. 16-17).
Following receipt of October 15th memoranda designating them as
management officials, Rasmussen and Hancock continued their organizing
activities on behalf of the Union. However, on November 1, 1979, they
were summoned to a meeting in the office of their immediate supervisor,
Mr. William P. Emery, III, Head, Fleet Readiness and Support Branch.
The meeting was also attended by Mr. Barke, the Civilian Personnel
Officer, and his assistant. At the meeting Rasmussen and Hancock were
told by Emery and Barke that because they had been designated as
management officials they were required to cease their active
involvement in Union activities, and that they should cease and desist
all activities in furtherance of the formation of a Union. Both
Rasmussen and Hancock unsuccessfully questioned the designation at the
meeting.
Subsequently, memoranda dated November 8, 1979, addressed to
Rasmussen and Hancock by Emery, formalized oral instructions conveyed on
November 1, 1979. The memoranda included the following statement:
The Deputy Director, Civilian Personnel Law, has expressed an
opinion that since you are the incumbent of a position identified
as "Managerial", you do not have the right to form, join, or
assist any labor organization. Therefore, you are hereby directed
to discontinue any activities aimed at forming or assisting a
labor organization. (G.C. Exh. 6).
Both Rasmussen and Hancock ceased their organizing activities on
behalf of the Union following receipt of the November 8, 1979
communications.
The work responsibilities of both Rasmussen and Hancock relate to the
Department of the Navy Maintenance and Material Management System, more
commonly referred to as the "Ships' 3-M Systems," or "3-M System." This
is a large computer based management information system created in 1966
for the purpose of providing information about equipment and systems
aboard ships. The information is used by personnel aboard ships and on
shore to manage maintenance, and to facilitate equipment design and the
supply of spare parts.
The organization and responsibilities for the 3-M System are outlined
in an April 30, 1979, Chief of Naval Operations Instruction (G.C. Exh.
7). The Instruction provides specifically that the 3-M System operates
"under the policy guidance provided by the CNO (Chief of Naval
Operations)."
The CNO has responsibility for, among other things, "(d)eveloping and
implementing the overall policy governing the management of the 3-M
Systems." Below the CNO, organizationally, are a 3-M Systems
Coordinating Group and a Policy Committee whose membership consists of
high level agency officials. The Coordinating Group considers and
studies proposals for improvement of the 3-M Systems for presentations
to the Policy Committee. The Policy Committee, in turn, "submits
recommendations to the CNO on the continued refinement, operation and
use of the Ships' 3-M Systems." Below the CNO and the Coordinating Group
and Policy Committee, is the Chief of Naval Material. The Chief of
Naval Material is the head of Headquarters, Naval Material Command, the
Respondent herein.
The Chief of Naval Material, pursuant to Navy Instructions, has
"overall responsibility for development, coordination and maintenance of
the Ships' 3-M Systems." More specifically, the Chief of Naval Material
is responsible "for providing instructions and technical directions for
the management of the Ships' 3-M Systems consistent with the policy
established by CNO and the requirements of Fleet (Commanders) . . . ."
Six supervisory layers are placed between Rasmussen and Hancock and
the Chief of Naval Material under the organizational chain of command.
They are Vice Chief of Naval Material, Deputy Chief of Naval Material
Logistics, Assistant Deputy Chief of Naval Material Logistics, Assistant
Deputy Chief Naval Material for Fleet Readiness and Support, Deputy to
the Assistant Deputy Chief of Naval Material for Fleet Readiness and
Support, and lastly Head of Fleet Readiness Branch, William Emery. The
Fleet Readiness Branch is staffed by Rasmussen, Hancock, one other
professional, and one clerical employee. No one is below them
organizationally and neither Rasmussen nor Hancock performs supervisory
responsibilities. (Tr. 25-26, 53-54).
Although Mr. Rasmussen is a program analyst, GS-345-14 and Mr.
Hancock a general engineer GS-801-14, the types of duties and
responsibilities which they perform are markedly similar, although the
specific work performed varies according to the specialized technical
expertise of each employee. /3/
The primary work function of both Rasmussen and Hancock relates to
the review and preparation of draft responses from the Naval Material
Command to the Chief of Naval Operations concerning the technical
feasibility of suggestions contained in incoming correspondence relating
to the 3-M System. This correspondence may suggest a technical
improvement, a change in procedures, or request information. The
correspondence typically comes from users of the System.
Correspondence comes into the Naval Material Command at
organizational levels above Rasmussen and Hancock and frequently, when
these employees receive it, they also receive guidance from their
superiors as to whether or not their draft response should favor the
suggestion contained in the correspondence. When Rasmussen or Hancock
receive these suggestions, they review and comment on technical
feasibility. In order to do so, they will often contact relevant
technical experts or interested parties to obtain their views for
incorporation into the draft responses prepared. In other cases, they
may rely on the documentation from previously reviewed similar cases or
on their knowledge of Navy instructions.
Once the draft response commenting on the technical feasibility of
the suggestion recommended or answering the question presented has been
prepared by Rasmussen or Hancock, it is reviewed by their immediate
supervisor and then, by at least several supervisory levels above them.
Drafts are usually revised by officials operating at organizational
levels above them. /4/
Responses are signed off by someone three or more levels above
Rasmussen and Hancock organizationally. When procedural changes being
considered are not minor in nature, they are typically reviewed by the
3-M System Coordinating Group and Policy Committee, described above.
Neither Mr. Rasmussen nor Mr. Hancock has ever participated in a 3-M
System Policy Committee meeting. Rasmussen has, on occasion, attended
3-M System Coordinating Group meetings. The purpose and extent of his
participation has been to familiarize him with a subject being
discussed, or to provide the Coordinating Group with his technical
expertise in certain areas. Hancock has attended one Coordinating Group
meeting as an observer.
Rasmussen and Hancock each spend approximately seventy percent of
their time performing duties of the type described. The types of tasks
performed during the time remaining are much more varied. Rasmussen,
for example, spends approximately thirty percent of his time identifying
data requirements or changes in functional descriptions for the 3-M
System as part of the Navy's efforts in redesigning this computer
system. Rasmussen's role is to serve as a facilitator in obtaining
comments on proposed data requirements. Hancock's other duties are more
varied. For example, he spends approximately five percent of his time
coordinating financial matters that come into the Branch. His
responsibility in this regard is to coordinate the review of budget
documents by persons in his office and send the material on to others.
Other work was described as being similar in nature to that outlined
herein.
Discussion and Conclusions
Section 7103(a)(2) of the Statute provides that the term "employee"
does not include "a management official." Section 7103(a)(11) of the
Statute provides:
'(M)anagement official' means an individual employed by an
agency in a position the duties and responsibilities of which
require or authorize the individual to formulate, determine, or
influence the policies of the agency.
In U.S. Army Communications Systems Agency, Fort Monmouth, New
Jersey, 4 FLRA No. 83 (November 12, 1980), the Authority determined that
the mere performance of duties as an expert or professional rendering
resource information or recommendations with respect to policies would
not justify classification as a management official within the meaning
of Section 7103(a)(11); and further that there must be a finding that
duties and responsibilities involved extend to the point of active
participation in the ultimate determination as to what policy will be.
A careful examination of the actual work performed by Mr. Rasmussen
and Mr. Hancock discloses that neither formulates, determines, or
influences the policies of the Respondent. They both work as experts
providing professional resource information in the Fleet Readiness
Branch, which is situated under a number of organizational layers having
review authority over their work activity. The procedure pursued by
both in developing correspondence and messages indicates that they are
not in a position to participate actively in ultimate determinations of
policy. Such determinations are made at higher levels in the
Respondent's organizational structure, or at the Chief of Naval
Operations level. Accordingly, there being no other impediment to their
inclusion within the "employee" classification, it must be concluded
that both Rasmussen and Hancock are employees within the meaning of
Section 7103(a)(2) of the Statute.
The Authority has held that an agency would "act at its own peril in
removing an employee from an established bargaining unit simply because
of a determination that such an employee is a supervisor or management
official for merit pay purposes," and further that the unfair labor
practice procedures of the Statute would be applicable in an appropriate
case to remedy such removal. Interpretation and Guidance, Case No.
0-PS-15, 4 FLRA No. 99 (December 16, 1980). It follows that an agency
would act at its peril by precluding any "employee," within the meaning
of the Statute, from engaging in protected activity because of a
determination that such employee is a supervisor or management official
for merit pay purposes.
The Authority's Interpretation and Guidance in 4 FLRA No. 99,
reflects that a determination by an agency that an employee is a
supervisor or management official for purposes of coverage under the
merit pay provisions of the Civil Service Reform Act of 1978, would not,
without more, constitute an unfair labor practice. The Authority also
concluded that it was "not within the jurisdiction of the Authority to
make determinations as to whether an individual is a supervisor or
management official" for merit purposes. /5/
Counsel for the Charging Party takes issue with the mentioned
conclusions set out in the Authority's Interpretation and Guidance. The
undersigned is bound to follow them. However, this is not a case
involving a mere determination that an employee is a management official
for purposes of coverage under the merit pay provisions of the Civil
Service Reform Act. The Respondent's answer admits that agents of the
Respondent directed Rasmussen and Hancock not to act on behalf of the
Union in any capacity and to discontinue any activities involving
assistance to a labor organization. Since Rasmussen and Hancock were
employees within the meaning of the Statute, such conduct clearly
constitutes a showing by a preponderance of the evidence that the
Respondent interfered with, restrained and coerced these two employees
in the exercise of employee rights guaranteed to them in Section 7102 of
the Statute. Accordingly, there has been a showing that the Respondent
violated Section 7116(a)(1).
Section 7116(a)(2) of the Statute provides that, "it shall be an
unfair labor practice for an agency . . . to encourage or discourage
membership in any labor organization by discrimination in connection
with hiring, tenure, promotion, or other conditions of employment." The
record here in no way reflects that the Respondent discouraged
membership in a labor organization "by discrimination." Even assuming
that the Respondent's administrative act of designating these employees
as management officials affected the terms and conditions of their ,
employment, the record is devoid of any showing of discriminatory motive
associated with the designation. No evidence was introduced to show
that the Respondent's designation of these employees as management
officials was made in bad faith or with animus. It appeared that the
decision was made with the understanding (albeit erroneous) that their
duties and responsibilities fell within the purview of the definition of
"management official" in Section 7103(a)(11). In this context it would
not be possible to find that Respondent's issuance of orders prohibiting
Union activity constituted disparate treatment as a result of protected
activity. The absence of such a showing precludes a determination that
Section 7116(a)(2) has been violated. Department of the Treasury,
Internal Revenue Service and IRS Richmond District Office, 3 FLRA No. 3
(April 4, 1980); Naval Air Station, Jacksonville, Florida, 2 FLRA No.
68 (January 25, 1980); Department of Health, Education and Welfare,
Social Security Administration, Great Lakes Program Service Center,
Chicago, Illinois, 2 FLRA No. 12 (November 29, 1979). /6/ Accordingly,
it is concluded that the facts fail to reflect a violation of Section
7116(a)(2) of the Statute.
Although counsel representing the General Counsel and counsel
representing the Charging Party argue that Respondent violated Section
7116(a)(8) of the Statute by reason of Respondent's denial of rights
guaranteed by Section 7102, it is noted that it is unnecessary to
determine this issue since even assuming the applicability of Section
7116(a)(8) to the factual situation herein, no useful purpose would be
served by such a finding, since the questioned conduct is already
adequately remedied by provisions of the recommended Order herein.
Defense Logistics Agency, 5 FLRA No. 21, (February 12, 1981).
Having found that the Respondent violated Section 7116(a)(1) of the
Statute, it is recommended that the Authority issue the following Order:
ORDER
1. Cease and desist from:
(a) Interfering with, restraining or coercing, employees Paul
E. Rasmussen and William J. Hancock by directing them not to act
on behalf of, or render assistance to, any labor organization
because they have been designated as management officials.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to carry out the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Rescind all orders directing employees Paul E. Rasmussen
and William J. Hancock not to act on behalf of, or render
assistance to, any labor organization on the ground that they are
management officials.
(b) Post at its facilities in Arlington, Virginia, 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 Chief, Naval Material, Headquarters,
Naval Material Command, and shall be posted and maintained for 60
consecutive days thereafter in conspicuous places, including all
bulletin boards and other places where notices are customarily
posted. Reasonable steps shall be taken to insure that said
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.
LOUIS SCALZO
Administrative Law Judge
Dated: April 22, 1981
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL rescind all orders directing employees Paul E. Rasmussen and
William J. Hancock not to act on behalf of, or render assistance to, any
labor organization on the ground that they are management officials. WE
WILL NOT interfere with, restrain, or coerce employees by directing them
not to act on behalf of, or render assistance to, any labor organization
because they have been designated as management officials. WE WILL NOT,
in any like or related manner, interfere with, restrain or coerce our
employees in the exercise of their rights assured by the Statute.
(Agency or Activity)
(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 Regional Director of the Federal Labor Relations Authority,
Region 3, whose address is 1133 15th Street, N.W., Suite 300,
Washington, D.C. 20005, and whose telephone number is: (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ The Authority has amended the Judge's recommended Order to
clarify that the Respondent may not direct employees to refrain from
acting for or assisting a labor organization merely because they have
been designated as "management officials" for merit pay purposes under
Title V of the Civil Service Reform Act of 1978.
/2/ 5 U.S.C.Chapter 54.
/3/ Mr. Hancock was also a program analyst until 1976 when his
classification was changed to that of a general engineer.
/4/ Mr. Rasmussen's testimony established that he did not have drafts
typed until Mr. Emery reviewed them. Hancock testified that since 1975,
he had to rewrite all but five of the letters which he prepared as a
result of the process of review utilized by his superiors.
/5/ The Interpretation and Guidance explains the role of agencies and
the Authority as follows:
Determinations as to an individual's supervisory or management
status made under titles V and VII of the Civil Service Reform Act
are related to the extent that those who administer the respective
separate titles utilize the same definitions of supervisor and
management official. However, determinations under title V of
status as a supervisor or management official for merit pay
purposes does not confer supervisory or managerial status under
Title VII. Since it is not within the jurisdiction of the
Authority to determine whether an individual is a supervisor or
management official for merit pay purposes under title V, it
follows that it is outside the jurisdiction of the Authority to
direct agencies to follow the binding determinations of the
Authority as to whether an individual is a supervisor or
management official under title VII when agencies are implementing
the merit pay provisions of title V.
/6/ In the light of authority developed under Executive Order 11491,
it is determined that animus need not be present to support a finding of
an independent violation of Section 7116(a)(1) of the Statute. Naval
Air Rework Facility, Marine Air Station, Cherry Point, North Carolina, 1
FLRA No. 85 (July 17, 1979).