Department of the Navy, Consolidated Civilian Personnel Office and National Federation of Federal Employees, Local 1461 (Authority decision, July 5, 1979)

Final FLRA decision under Executive Order 11491. The Authority adopted the judge's unfair labor practice result with modifications in this transferred case. The decision says it applies Executive Order 11491 rather than the later federal labor relations statute and does not address judicial review.

Plain-English summary

The Navy reorganized the U.S. Naval Observatory's public works department, eliminating positions and changing reporting lines. Its Consolidated Civilian Personnel Office prevented NFFE Local 1461 from seeking bargaining over the effect on employees. An administrative law judge found that this refusal violated the Executive Order. The Authority agreed, identified additional affected positions, and issued a revised order requiring the personnel office to allow impact bargaining on request and post a notice.

Decision snapshot

• Authority: 5 U.S.C. § 7135(b); Executive Order 11491, § 19(a)(6).
• Outcome: Judge's violation finding retained; Authority revised the findings and remedial order.
• Key point: A Navy personnel office that controlled labor relations could not prevent the local facility from bargaining over a reorganization's employee impact.

Full text (FLRA public release)

[ v01 p717 ]

01:0717(80)CA

The decision of the Authority follows:

1 FLRA No. 80

DEPARTMENT OF DEFENSE,
DEPARTMENT OF THE NAVY,
CONSOLIDATED CIVILIAN
PERSONNEL OFFICE
Respondent

and

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1461
Complainant

Assistant Secretary
Case No. 22-08765(CA)

DECISION AND ORDER

ON JANUARY 25, 1979, ADMINISTRATIVE LAW JUDGE EVERETTE E. THOMAS
ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN CONDUCT
WHICH WAS VIOLATIVE OF SECTION 19(A)(6) OF EXECUTIVE ORDER 11491, AS
AMENDED, AND RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE
CERTAIN AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE
LAW JUDGE'S RECOMMENDED DECISION AND ORDER. THE ADMINISTRATIVE LAW
JUDGE FURTHER FOUND THAT CERTAIN OTHER CONDUCT OF THE RESPONDENT WAS
NOT
VIOLATIVE OF THE ORDER. THEREAFTER, BOTH PARTIES FILED TIMELY
EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
ORDER AND THE COMPLAINANT FILED A RESPONSE TO RESPONDENT'S EXCEPTIONS.

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 RULES AND REGULATIONS
(44 F.R. 7). 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 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 THE
SUBJECT CASE, INCLUDING THE PARTIES' EXCEPTIONS AND THE COMPLAINANT'S
RESPONSE TO RESPONDENT'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS AS
MODIFIED.

THE AUTHORITY AGREES WITH THE ADMINISTRATIVE LAW JUDGE'S CONCLUSION
THAT THE REORGANIZATION OF THE PUBLIC WORKS DEPARTMENT OF THE U.S. NAVAL
OBSERVATORY, EFFECTIVE NOVEMBER 1, 1977, SUBSTANTIALLY AFFECTED UNIT
EMPLOYEES AND WAS, THEREFORE, A MATTER ON WHICH THE COMPLAINANT WAS
ENTITLED TO BARGAIN ABOUT WITH RESPECT TO ITS IMPACT ON UNIT EMPLOYEES.
IN SO FINDING THE AUTHORITY NOTES THAT THE REORGANIZATION RESULTED IN
THE ELIMINATION OF A NUMBER OF POSITIONS NOT REFERRED TO BY THE
ADMINISTRATIVE LAW JUDGE IN HIS DECISION, /1/ MOST OF WHICH WERE IN THE
BARGAINING UNIT, AND THAT IS PLACED IN A SUBORDINATE POSITION TO THE
NEWLY ESTABLISHED POSITION OF GENERAL ENGINEER GS-801-12, TWO UNIT
EMPLOYEES, THE SHOP PLANNER WD-6701-05 AND THE PLANNER/ESTIMATOR
WD-6701-08 (NOW ENTITLED PLANNER ESTIMATOR/INSPECTOR WD-6101-8) WHO HAD
PREVIOUSLY REPORTED TO THE FACILITY MANAGER. ACCORDINGLY, AS THE
RESPONDENT PREVENTED THE COMPLAINANT FROM HAVING THE OPPORTUNITY TO SEEK
BARGAINING ON THE IMPACT OF THE REORGANIZATION ON UNIT EMPLOYEES, THE
AUTHORITY SHALL ISSUE AN APPROPRIATE REMEDIAL ORDER.

ORDER /2/

PURSUANT TO SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE DEPARTMENT OF THE NAVY CONSOLIDATED CIVILIAN PERSONNEL OFFICE
SHALL:

1. CEASE AND DESIST FROM:

(A) FAILING TO AFFORD, OR DIRECTING THE COMMANDING OFFICER OF THE
U.S. NAVAL OBSERVATORY NOT TO AFFORD, THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1461, THE EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES OF
THE OBSERVATORY, THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, ON THE IMPACT ON ADVERSELY AFFECTED
EMPLOYEES OF THE REORGANIZATION OF NOVEMBER 1, 1977, AT THE OBSERVATORY.

(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ACCORDED BY EXECUTIVE
ORDER 11491, AS AMENDED.

2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:

(A) UPON REQUEST OF THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1461, THE EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES OF THE U.S.
NAVAL OBSERVATORY, WASHINGTON, D.C., MEET AND CONFER, OR CAUSE THE
OBSERVATORY TO MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON THE IMPACT ON ADVERSELY AFFECTED EMPLOYEES OF THE
REORGANIZATION OF NOVEMBER 1, 1977, AT THE OBSERVATORY.

(B) POST AT THE U.S. NAVAL OBSERVATORY, WASHINGTON, D.C., 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 DIRECTOR OF THE DEPARTMENT OF THE NAVY
CONSOLIDATED CIVILIAN PERSONNEL OFFICE, WASHINGTON, D.C., AND SHALL BE
POSTED AND MAINTAINED BY HIM FOR SIXTY (60) CONSECUTIVE DAYS THEREAFTER,
IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES
WHERE NOTICES TO EMPLOYEES OF THE U.S. NAVAL OBSERVATORY ARE CUSTOMARILY
POSTED. THE DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
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, WHAT STEPS HAVE BEEN TAKEN TO COMPLY
HEREWITH.

ISSUED, WASHINGTON, D.C., JULY 5, 1979

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

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 EMPLOYEES OF THE U.S. NAVAL OBSERVATORY,

WASHINGTON, D.C.

WE WILL NOT FAIL TO AFFORD, NOR WILL WE DIRECT THE COMMANDING OFFICER
OF THE U.S. NAVAL OBSERVATORY NOT TO AFFORD, THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1461, THE EXCLUSIVE REPRESENTATIVE OF THE
EMPLOYEES OF THE OBSERVATORY, THE OPPORTUNITY TO MEET AND CONFER, TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE IMPACT ON ADVERSELY
AFFECTED EMPLOYEES OF THE REORGANIZATION OF NOVEMBER 1, 1977, AT THE
OBSERVATORY.

WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.

WE WILL UPON REQUEST OF THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1461, THE EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES OF THE U.S.
NAVAL OBSERVATORY, WASHINGTON, D.C. MEET AND CONFER, OR CAUSE THE
OBSERVATORY TO MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON THE IMPACT ON ADVERSELY AFFECTED EMPLOYEES OF THE
REORGANIZATION OF NOVEMBER 1, 1977, AT THE OBSERVATORY.

DEPARTMENT OF THE NAVY

CONSOLIDATED CIVILIAN PERSONNEL OFFICE

DATED: . . . BY: . . .

BY: . . .

(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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
ROOM 509, VANGUARD BUILDING, P.O. BOX 19257, 1111-20TH STREET, N.W.,
WASHINGTON, D.C. 20036.

HERBERT L. ZIPPERIAN

LABOR RELATIONS SPECIALIST

ASSISTANT DEPUTY CHIEF OF NAVAL

OPERATIONS, NAVY DEPARTMENT

WASHINGTON, D.C.

FOR THE RESPONDENT

ROBERT ENGLEHART

NATIONAL FEDERATION OF FEDERAL

EMPLOYEES

1016-16TH STREET, N.W.

WASHINGTON, D.C.

FOR THE COMPLAINANT

BEFORE: EVERETTE E. THOMAS

ADMINISTRATIVE LAW JUDGE

RECOMMENDED DECISION AND ORDER

PRELIMINARY STATEMENT

THIS CASE AROSE UNDER EXECUTIVE ORDER 11491, AS AMENDED, FOLLOWING A
COMPLAINT FILED ON JANUARY 1, 1978 BY THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1461 (HEREINAFTER, THE "UNION"), AGAINST THE DEPARTMENT
OF DEFENSE, DEPARTMENT OF THE NAVY CONSOLIDATED CIVILIAN PERSONNEL
OFFICE (HEREINAFTER, THE "RESPONDENT"). A NOTICE OF HEARING WAS ISSUED
BY THE REGIONAL ADMINISTRATOR ON JULY 13, 1978.

THE COMPLAINT ALLEGED THAT THE RESPONDENT VIOLATED SECTION 19(A)1,
19(A)5, AND 19(A)(6) OF EXECUTIVE ORDER 11491 (HEREINAFTER, THE "ORDER")
BY ITS: (1) FAILURE "TO ACCORD EFFECTIVE RECOGNITION" TO UNION
REPRESENTATIVES DURING A MEETING WITH MANAGEMENT ON AUGUST 5, 1977; (2)
REFUSAL TO CONSULT AND ADVICE TO OTHER MANAGEMENT TO REFUSE TO CONSULT
PRIOR TO IMPLEMENTATION OF A REORGANIZATION PLAN; AND (3) THE DISPLAY
OF "ABUSIVE AND DISCOURTEOUS" BEHAVIOR TOWARDS UNION REPRESENTATIVES.
THE SECTION 19(A)(5) ALLEGATION WAS DISMISSED BY THE REGIONAL
ADMINISTRATOR PRIOR TO ISSUANCE OF THE NOTICE OF HEARING.

A HEARING WAS HELD ON NOVEMBER 9, 1978 IN WASHINGTON, D.C. ALL
PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND
CROSS-EXAMINE WITNESSES AND TO INTRODUCE EVIDENCE BEARING ON THE ISSUES
INVOLVED HEREIN.

THE RESPONDENT'S POSITION, AS EXPLAINED DURING OPENING REMARKS, WAS
THAT IT WAS NOT A PROPER PARTY BECAUSE IT IS SOLELY AN AGENT OF AND
ACTING UNDER THE DIRECTION AND RESPONSIBILITY OF THE SUPERINTENDENT OF
THE U.S. NAVAL OBSERVATORY. THE UNION'S POSITION IS THAT ALTHOUGH THE
SUPERINTENDENT MAY BE CHARGED WITH THE OBLIGATION TO BARGAIN, HE IS IN
FACT COMPLETELY CAPTIVE OF THE ADVICE OF THE RESPONDENT AND ONLY
FUNCTIONS IN A MINISTERIAL CAPACITY. RELATIONS BETWEEN THE UNION AND
THE SUPERINTENDENT HAVE BEEN SATISFACTORY AND THE UNION BELIEVES ANY
ORDER DIRECTED TO THE SUPERINTENDENT WOULD BE USELESS BECAUSE OF THIS
DOMINION OR CONTROL EXERCISED BY THE RESPONDENT.

UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR AND MEMORANDA AND/OR BRIEFS SUBMITTED BY
COUNSEL OR REPRESENTATIVE FOR THE RESPECTIVE PARTIES, I MAKE THE
FOLLOWING FINDINGS AND CONCLUSIONS.

FINDINGS OF FACT

1. THE COMPLAINANT UNION, LOCAL 1461; IS, . . . AT ALL TIMES
   MATERIAL HEREIN HAS BEEN, THE EXCLUSIVE REPRESENTATIVE FOR THREE UNITS
   COMPRISED OF PROFESSIONAL EMPLOYEES, GUARDS, AND ALL OTHER CIVILIAN
   EMPLOYEES, MINUS EXCLUSIONS REQUIRED BY THE ORDER, AT THE U.S. NAVAL
   OBSERVATORY, WASHINGTON, D.C.

2. IN 1962, THE NAVY MERGED TWO CIVILIAN PERSONNEL OFFICES TO FORM A
   SINGLE OFFICE CALLED THE CONSOLIDATED INDUSTRIAL RELATION'S OFFICE. ITS
   MISSION WAS TO PROVIDE CIVILIAN PERSONNEL STAFF SERVICES TO THE
   COMMANDING OFFICERS, NAVAL STATION, WASHINGTON, D.C., TO WHICH THE
   OFFICE WAS ATTACHED, AND TO 24 OTHER ACTIVITIES. THE U.S. NAVAL
   OBSERVATORY (HEREINAFTER, THE "ACTIVITY") WAS ONE OF THE ACTIVITIES
   INVOLVED, AND ON OCTOBER 31, 1966, ENTERED INTO AN "AGREEMENT FOR
   INDUSTRIAL RELATIONS STAFF SERVICES" (JT. EXH. 1) WITH THE CONSOLIDATED
   INDUSTRIAL RELATIONS OFFICE. ON OCTOBER 7, 1976, THAT OFFICE, ALONG
   WITH NINE OTHERS, WAS ESTABLISHED AS A SEPARATE ACTIVITY REPORTING
   DIRECTLY TO THE CHIEF OF NAVAL OPERATIONS. (RESP. EXH. 1) ITS MISSION
   WAS (AND IS) TO PROVIDE COMPLETE CIVILIAN PERSONNEL SERVICES TO ASSIGNED
   NAVAL ACTIVITIES AS SPECIFIED IN SERVICING AGREEMENTS WITH THOSE
   ACTIVITIES. THE NAME OF THE OFFICE WAS CHANGED TO CONSOLIDATED CIVILIAN
   PERSONNEL OFFICE (CCPO). THE 1966 AGREEMENT BETWEEN CCPO AND THE
   ACTIVITY HAS BEEN IN EFFECT DURING ALL TIMES RELEVANT HEREIN.

3. THE CCPO AND THE ACTIVITY ARE SEPARATE AND INDEPENDENT ACTIVITIES
   WHICH REPORT IN THE CHAIN OF COMMAND TO THE CHIEF OF NAVAL OPERATIONS.
   THE CCPO HAS BEEN DELEGATED AUTHORITY TO "PROVIDE COMPLETE CIVILIAN
   PERSONNEL SERVICES TO ASSIGNED NAVY ACTIVITIES AS SPECIFIED IN CIVILIAN
   PERSONNEL MANAGEMENT SERVICES AGREEMENTS." (RESP. EXH. 1, P. 1) THE
   INTRODUCTION TO THE AGREEMENT OF 1966 STATES, IN PERTINENT PART:

THE DEPARTMENT OF THE NAVY'S BASIC POLICY FOR CIVILIAN PERSONNEL
ADMINISTRATION REQUIRES

THE HEAD OF THE ACTIVITY TO PROVIDE FOR SOUND MANAGEMENT CONTROL,
DIRECTION AND SUPPORT OF HIS

CIVILIAN PROGRAM, IN ORDER TO ASSURE CONFIDENT, EFFICIENT, AND
EQUITABLE CIVILIAN PERSONNEL

MANAGEMENT THROUGHOUT THE NAVY.

CIVILIAN PERSONNEL MANAGEMENT IS THEREFORE A BASIC RESPONSIBILITY OF
THE HEAD OF THE

ACTIVITY AND THE LINE ORGANIZATION OF . . . ACTIVITY WHICH EMPLOYS
CIVILIANS. TO DISCHARGE

THESE RESPONSIBILITIES PROPERLY, THE HEAD OF THE ACTIVITY AND HIS
SUBORDINATE LINE

ORGANIZATION REQUIRE THE SERVICES OF A COMPETENT INDUSTRIAL RELATIONS
STAFF TO PROVIDE (1)

EXPERT GUIDANCE REGARDING EFFECTIVE APPLICATION OF ACCEPTED
PRINCIPLES AND PRACTICES OF MODERN

PERSONNEL ADMINISTRATION AND THE REQUIREMENTS OF APPLICABLE LAWS,
REGULATIONS, AND

INSTRUCTIONS, AND (2) ESSENTIAL INDUSTRIAL RELATIONS STAFF ASSISTANCE
IN THE PROCESSING OF

FORMALIZED PERSONNEL ACTIONS, THE MAINTENANCE OF PERSONNEL RECORDS,
AND THE PREPARATION OF

REQUIRED REPORTS.

WITH REGARD TO LABOR RELATIONS IN PARTICULAR, PARAGRAPH 6 OF PART I
OF THE AGREEMENT (JT. EXH. 1, P. 4) STATES:

MANAGEMENT WILL MEET AND DEAL WITH EMPLOYEE ORGANIZATIONS AS REQUIRED
BY NCPI 721.

CIRO (NOW CCPO) WILL COORDINATE EMPLOYEE-MANAGEMENT COOPERATION AND
RELATED MATTERS.

4. SOMETIME PRIOR TO AUGUST, 1977 THE COMMANDING OFFICER
   (HEREINAFTER, THE "C.O.") OF THE ACTIVITY DECIDED TO REORGANIZE THE
   PUBLIC WORKS DEPARTMENT OF THE ACTIVITY. PRIOR TO THE REORGANIZATION,
   BARGAINING UNIT EMPLOYEES IN THREE BRANCHES REPORTED TO FOREMEN. THE
   FOREMAN REPORTED TO A FACILITY MANAGER. THE FACILITY MANAGER AND A
   PROCUREMENT ASSISTANT REPORTED TO THE PUBLIC WORKS OFFICER, A MILITARY
   BILLET. UNDER THE REORGANIZATION, BARGAINING UNIT EMPLOYEES IN THE SAME
   THREE BRANCHES REPORTED TO THE SAME FOREMAN AS BEFORE. THE FOREMAN, TWO
   MOTOR VEHICLE OPERATORS AND A PROCUREMENT ASSISTANT REPORT TO THE PUBLIC
   WORKS OFFICER, STILL A MILITARY BILLET. HOWEVER, THE POSITION OF
   FACILITY MANAGER (CIVILIAN) WAS ELIMINATED AND A GENERAL ENGINEER
   POSITION WAS ESTABLISHED WITH TWO SUBORDINATE POSITIONS. ALTHOUGH THE
   THREE BRANCHES CONTAINING UNIT EMPLOYEES WERE ESSENTIALLY UNCHANGED,
   THEIR FOREMEN REPORT DIRECTLY TO THE MILITARY PUBLIC WORKS OFFICER. THE
   REORGANIZATION THEREFORE ELIMINATED A CIVILIAN BUFFER BETWEEN THE UNIT
   EMPLOYEES AND THE MILITARY SUPERVISOR. /3/ IT ALSO ELIMINATED A POSITION
   TO WHICH AT LEAST SOME OF THE EMPLOYEES COULD ASPIRE. I FIND THAT THE
   REORGANIZATION EFFECTED A SUBSTANTIAL CHANGE IN WORKING CONDITIONS AND
   CREATED A SIGNIFICANT IMPACT ON UNIT PERSONNEL.

5. THE REORGANIZATION PLANNED PRIOR TO AUGUST, 1977, AND NOW A FAIT
   ACCOMPLI, WAS TO BECOME EFFECTIVE ON NOVEMBER 1, 1977. THE UNION WAS
   NOTIFIED SHORTLY AFTER THE DECISION TO REORGANIZE AND A MEETING WAS
   SCHEDULED BY THE C.O. TO EXPLAIN THE DETAILS AND DISCUSS POSSIBLE
   EFFECTS THEREOF. THE CCPO ADVISED THE C.O. THAT A CCPO REPRESENTATIVE
   SHOULD ATTEND THE MEETING.

6. THE RECORD ESTABLISHES THAT THE MEETING OF AUGUST 5, 1977 WAS
   DOMINATED BY THE CCPO REPRESENTATIVE. THE UNION ASKED FOR SUFFICIENT
   INFORMATION TO DETERMINE WHETHER THE IMPACT OF THE REORGANIZATION WOULD
   BE GREAT ENOUGH TO BECOME THE SUBJECT OF BARGAINING. THE CCPO
   REPRESENTATIVE INTERRUPTED BY BANGING HIS FIST ON THE TABLE AND
   INDICATING THAT HE WOULD NOT ALLOW SUCH NONSENSE TO CONTINUE. HIS
   POSITION WAS THAT THE IMPACT OF THE REORGANIZATION WAS NOT A SUBJECT
   ABOUT WHICH THE UNION HAD ANY RIGHT TO CONSULTATION OR BARGAINING. THIS
   POSITION WAS REPEATED SEVERAL TIMES THROUGHOUT THE MEETING TO THE
   APPARENT EMBARRASSMENT OF THE C.O. THE CCPO REPRESENTATIVE COMPLAINED
   DURING THE MEETING THAT THE UNION PRESIDENT HAD, OVER A LONG PERIOD OF
   TIME, BEEN BOTHERING THE C.O. BY FREQUENT VISITS TO HIS OFFICE. HE
   FURTHER STATED THAT HE FELT THE MEETING WAS A WASTE OF TIME AND THAT THE
   ACTIVITY'S INTERESTS WOULD BE BETTER SERVED IF EVERYONE WOULD RETURN TO
   THE WORK WHICH THEY WERE BEING PAID TO DO. THIS STATEMENT WAS OF
   SUFFICIENT CONCERN THAT SEVERAL UNION MEMBERS SUBMITTED LEAVE REQUESTS
   FOR THE TIME TAKEN TO ATTEND THE MEETING.

7. WHILE THE UNION WAS PROVIDED CERTAIN BASIC INFORMATION SUCH AS A
   REORGANIZATION CHART, DURING THE MEETING OF AUGUST 5, 1978, MOST OF
   INQUIRIES DURING THE MEETING WERE NOT GIVEN SUBSTANTIVE RESPONSES. THE
   AUGUST 5TH MEETING WAS INTENDED TO BE FOR THE PURPOSE OF PROVIDING
   INFORMATION SO THAT THE UNION COULD MAKE AN INFORMAL DECISION WHETHER TO
   REQUEST BARGAINING OVER IMPACT AND IMPLEMENTATION OF THE DECISION TO
   REORGANIZE. ALTHOUGH THE UNION DID NOT FORMALLY ASK TO NEGOTIATE
   IMPACT, SUCH A REQUEST WOULD HAVE BEEN A FUTILE GESTURE UNDER THE
   CIRCUMSTANCES. THE CCPO REPRESENTATIVE INSISTED THAT REORGANIZATION WAS
   NOT A PROPER SUBJECT FOR BARGAINING. HE MADE IT QUITE CLEAR THAT IN HIS
   OPINION THERE WAS NOTHING TO NEGOTIATE. THIS . . . WAS NOT CONTRADICTED
   BY THE ACTIVITY. IN FACT, THE C.O. TOLD THE UNION THAT HE WAS COMPELLED
   TO GO ALONG WITH WHATEVER RECOMMENDATIONS WERE MADE BY THE CCPO.

8. THE RECORD REFLECTS TWO PRIOR INCIDENTS IN WHICH THE CCPO
   OVERRULED ACTION TAKEN BY THE ACTIVITY. IN ONE INSTANCE THE ACTIVITY
   HAD AGREED WITH THE UNION TO PROCESS AN APPLICATION TO ENROLL AN
   EMPLOYEE IN A HEALTH PLAN DURING A CLOSED SEASON. ON ANOTHER, THE CCPO
   REFUSED TO REQUEST THAT PAYROLL DEDUCTIONS BE MADE FOR UNION DUES, AFTER
   AN AGREEMENT TO THAT EFFECT HAD BEEN REACHED BETWEEN THE ACTIVITY AND
   THE UNION.

9. IN VIEW OF THE ROLE EXERCISED BY CCPO IN ITS RELATIONSHIP WITH
   THE UNION AND PARTICULARLY BECAUSE OF THE AUTHORITY IT ASSERTED OVER THE
   ACTIVITY, I FIND THAT CCPO ASSUMED THE POSITION OF AGENCY MANAGEMENT
   WITH REGARD TO THE MATTERS INVOLVED IN THE COMPLAINT HEREIN. I FURTHER
   FIND THAT, HAVING ASSUMED THE POSITION OF AGENCY MANAGEMENT, CCPO
   REFUSED TO BARGAIN WITH THE UNION CONCERNING THE IMPACT OF THE
   REORGANIZATION ON EMPLOYMENT CONDITIONS.

10. ALTHOUGH THE CCPO REPRESENTATIVE'S BEHAVIOR DURING THE MEETING
    OF AUGUST 5, 1977 MAY HAVE BEEN RATHER DOMINEERING AND OBSTINATE, I DO
    NOT FIND THAT IT REACHED THE POINT OF BEING SUFFICIENTLY ABUSIVE OR
    DISCOURTEOUS TO CONSTITUTE INTERFERENCE, RESTRAINT OR COERCION. THE
    REPRESENTATIVE'S CONDUCT WHILE MAINTAINING HIS ASSERTION THAT THE
    REORGANIZATION WAS NOT A PROPER SUBJECT FOR UNION CONSIDERATION, DID
    NOT, IN MY VIEW, CONSTITUTE AN UNFAIR LABOR PRACTICE.

DISCUSSION AND CONCLUSIONS

THE RESPONDENT AND THE ACTIVITY (NAVAL OBSERVATORY) ARE COLLATERAL
ACTIVITIES WITHIN THE DEPARTMENT OF THE NAVY. NORMALLY THE
RESPONSIBILITY FOR BARGAINING OVER IMPACT OF A DECISION TO REORGANIZE
WOULD REST WITH THE HEAD OF THE ACTIVITY WHO MADE THE DECISION.
HOWEVER, IN THIS CASE THERE IS CONSIDERABLE MERIT TO THE ARGUMENT THAT
UNDER THE NAVY'S ORGANIZATIONAL STRUCTURE THE C.O. OF THE ACTIVITY HAS
BEEN PLACED IN SUCH A POSITION THAT HE HAS LITTLE FREEDOM OF CHOICE IN
CERTAIN PERSONNEL MATTERS. HIS ACTIVITY HAS AN AGREEMENT TO RECEIVE
ADVICE FROM, AND HAVE ITS PERSONNEL SERVICES PROVIDED BY, A COLLATERAL
ACTIVITY WHICH HAS THE REQUISITE EXPERTISE AND FACILITIES. THE C.O.
WOULD OBVIOUSLY BE EXPECTED IF NOT REQUIRED, TO GIVE CONSIDERABLE
DEFERENCE TO THE WISHES OF AN ACTIVITY ESTABLISHED BY THE NAVY TO
ADMINISTER HIS PERSONNEL PROGRAM.

RESPONDENT CCPO'S CONTENTION THAT IT IS MERELY A SERVICING
ORGANIZATION UNDER ITS CONTRACT WITH THE ACTIVITY AND THEREFORE AN AGENT
OF THE ACTIVITY IS CONTRARY TO THE ACTUAL WORKING RELATIONSHIP BETWEEN
THE OFFICES. ALTHOUGH THE FORMAL AGREEMENT IS SOMEWHAT AMBIGUOUS AS TO
WHERE THE FINAL AUTHORITY FOR LABOR RELATIONS RESTS, THERE IS NO
QUESTION THAT THE CCPO DID EXERCISE INDEPENDENT DECISION AUTHORITY BY
THE MANNER IN WHICH IT CONTROLLED OR INFLUENCED THE ACTIVITY'S ACTIONS.
THE UNION CERTAINLY HAD NO DOUBT AS TO WHO MADE THE FINAL DECISIONS IN
LABOR-MANAGEMENT RELATIONS. EVEN IF THE FORMAL AGREEMENT GAVE THE
ACTIVITY FINAL RESPONSIBILITY FOR LABOR RELATIONS, IN THE UNDERSIGNED'S
VIEW THE ACTIVITY HAD LONG SINCE RELINQUISHED THE AUTHORITY FOR
LABOR-MANAGEMENT DECISIONS TO THE CCPO.

ALTHOUGH THE CCPO MAY HAVE BEEN OBLIGATED TO ADVISE THE ACTIVITY AND
PROVIDE CERTAIN ASSISTANCE, ITS PARTICIPATION IN THE MEETING OF AUGUST
5TH, AND ITS ACTIONS ON TWO OTHER OCCASIONS, PARTICULARLY ITS REFUSAL TO
PROCESS THE PAYROLL DUES WITHHOLDING AGREEMENT, WENT BEYOND MERE ADVICE
AND ASSISTANCE. IT IS BASIC HORNBOOK LAW THAT, UNDER APPROPRIATE
CIRCUMSTANCES, AN AGENCY MAY, THROUGH THE EXERCISE OF APPARENT
AUTHORITY, ASSUME THE RESPONSIBILITY AND LIABILITY OF THE PRINCIPAL. IT
IS EQUALLY WELL ESTABLISHED THAT WHERE A DOCUMENT IS AMBIGUOUS AS TO
WHAT WAS INTENDED, PAROL EVIDENCE OF SUCH FACTS IF FREELY ADMITTED.

THE COUNCIL'S DECISION IN NAVAL AIR REWORK FACILITY PENSACOLA AND
SECRETARY OF THE NAVY, A/SLMR NO. 608, FLRC NO. 76A-37. REPORT NO. 125,
SUPPORTS THE PROPOSITION THAT CONDUCT OF AGENCY MANAGEMENT AT A LEVEL
ABOVE THE UNIT OF EXCLUSIVE RECOGNITION MAY PROVIDE THE BASIS FOR A
VIOLATION, WHEN CONSIDERED TOGETHER WITH VIOLATIVE CONDUCT AT THE LOWER
ORGANIZATION LEVEL. THE COUNCIL ALSO STATED:

WHERE HE (THE ASSISTANT SECRETARY) FINDS THAT AN ACT OR CONDUCT
CONSTITUTES AN UNFAIR LABOR

PRACTICE AND THAT THE INDIVIDUALS WHO COMMITTED THE ACT ARE AGENCY
MANAGEMENT, THERE IS NO

BASIS IN THE ORDER TO DRAW ARTIFICIAL DISTINCTIONS BETWEEN
ORGANIZATIONAL LEVELS OF SUCH

AGENCY MANAGEMENT SO AS TO RELIEVE THEM OF THE RESPONSIBILITY FOR
THEIR ACTS WHICH WOULD

OTHERWISE BE VIOLATIVE OF THE ORDER.

(W)HEN ACTS AND CONDUCT CONSTITUTE A REFUSAL TO CONFER, CONSULT, OR
NEGOTIATE AS REQUIRED

BY THE ORDER, SUCH ACTS AND CONDUCT MAY PROPERLY BE FOUND VIOLATIVE
OF SECTION 19(A)(6)

REGARDLESS OF THE ORGANIZATIONAL LEVEL OF THE MEMBER OF AGENCY
MANAGEMENT WHO COMMITTED THE

VIOLATIVE CONDUCT. ID, P. 5.

ALTHOUGH THE COUNCIL NOTED THAT THE OBLIGATION TO NEGOTIATE COINCIDES
WITH THE UNIT OF EXCLUSIVE RECOGNITION, IT FOUND THAT THIS OBLIGATION
MAY BE VIOLATED BY A HIGHER MANAGEMENT LEVEL WHEN IT INITIATES UNLAWFUL
CONDUCT. IN CONCLUDING THAT "AGENCY MANAGEMENT" VIOLATED THE ORDER, THE
COUNCIL IN NAVAL AIR, SUPRA, NOTED THAT IT WAS THE INITIATING CONDUCT OF
THE DEPARTMENT WHICH WAS VIOLATIVE, RATHER THAN THE "MINISTERIAL"
CONDUCT OF THE ACTIVITY WHICH HAD NO CHOICE IN THE MATTER.

HERE THE NAVY ESTABLISHED A SEPARATE ACTIVITY TO PROVIDE "COMPLETE
CIVILIAN PERSONNEL SERVICES" TO ASSIGNED SHORE ACTIVITIES. ALTHOUGH IT
MAY HAVE INTENDED THAT THE FINAL RESPONSIBILITY FOR LABOR RELATIONS
DECISIONS WOULD REST WITH THE LINE ACTIVITY, SUCH WAS NOT THE FINAL
RESULT. RATHER THAN LIMITING ITS ROLE TO PROVIDING ADVISE AND
ASSISTANCE, THE SERVICING ACTIVITY DOMINATED AND USURPED THE POWER OF
THE LINE ACTIVITY. THE ACTIVITY C.O. ADMITTED TO THE UNION THAT HE HAD
TO GO ALONG WITH THE DECISIONS OF THE CCPO. FOR ALL PRACTICAL PURPOSES
THE ACTIVITY HAD DUEL LEADERSHIP. THE C.O. MANAGED THE ACTIVITY'S
OPERATIONAL FUNCTION AND THE CCPO MANAGED ITS PERSONNEL AND LABOR
RELATION ACTIVITIES. IT WOULD BE OF LITTLE IMPORT TO HOLD THE C.O. OR
THE ACTIVITY ACCOUNTABLE FOR MATTERS OVER WHICH FINAL RESPONSIBILITY WAS
IN FACT EXERCISED BY A COLLATERAL ORGANIZATION. IN PERSONNEL MATTERS,
THE ACTIVITY WAS CAPTIVE TO IMPLEMENT THE DECISIONS OF THE CCPO.

WITH REGARD TO THE ACTUAL CONDUCT WHICH I HAVE FOUND TO BE VIOLATIVE,
THE CCPO REPRESENTATIVE REPEATEDLY ANNOUNCED AT THE AUGUST 5TH MEETING
THAT REORGANIZATION WAS NOT A PROPER SUBJECT FOR IMPACT BARGAINING.
THIS WAS INTERPRETED BY THE UNION TO MEAN THAT THE ACTIVITY WAS
PRECLUDED FROM NEGOTIATING. ALTHOUGH DECISIONS TO REORGANIZE ARE NOT
NEGOTIABLE IN THEMSELVES, IMPLEMENTATION PROBLEMS ARE WHERE THE
EMPLOYEES ARE POTENTIALLY IMPACTED. LABOR MANAGEMENT RELATIONS IN THE
FEDERAL SERVICE, FLRC-75-1 (APRIL 1975, P. 70). THERE WAS A POTENTIALLY
SIGNIFICANT CHANGE IN WORKING CONDITIONS AS A RESULT OF THE
REORGANIZATION. WHERE THIS POSSIBILITY FOR IMPACT EXISTS, THERE IS AN
OBLIGATION TO BARGAIN. INTERNAL REVENUE SERVICE, . . . CENTER, A/SLMR
NO. 983; UNITED STATES AIM FORCE ELECTRONICS SYSTEM DIVISION, HANSON
AIR FORCE BASE, A/SLMR NO. 511. AS MENTIONED ABOVE, THE FACT THAT THE
UNION HAD NOT FORMALLY ASKED TO BARGAIN OVER IMPACT MAKES NO DIFFERENCE
WHERE IT WAS OBVIOUS THAT SUCH REQUEST WOULD BE FLATLY REFUSED. A PARTY
SHOULD NOT BE REQUIRED TO MAKE A USELESS GESTURE MERELY FOR THE SAKE OF
FORMALITY.

IN VIEW OF THE FOREGOING, I FIND THAT THE RESPONDENT HEREIN VIOLATED
SECTION 19(A)(6) OF EXECUTIVE ORDER 11491 BY ITS ACTIONS TO PRECLUDE
BARGAINING OVER THE IMPACT OF THE REORGANIZATION.

ORDER

PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS, THE FEDERAL LABOR RELATIONS
AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF NAVY CONSOLIDATED
CIVILIAN PERSONNEL OFFICE SHALL:

1. CEASE AND DESIST FROM:

(A) FAILING TO AFFORD OR DIRECTING THE COMMANDING OFFICER OF THE U.S.
NAVAL OBSERVATORY TO FAIL TO AFFORD THE EXCLUSIVE REPRESENTATIVE OF ITS
EMPLOYEES, THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT CONSONANT
WITH LAW AND REGULATIONS, ON THE IMPACT OF THE REORGANIZATION OF THE
U.S. NAVAL OBSERVATORY.

(B) IN ANY LIKE OR RELATED MANNER, INTERFERRING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.

2. POST AT THE U.S. NAVAL OBSERVATORY, WASHINGTON, D.C., 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 COMMANDING OFFICER, U.S. NAVAL OBSERVATORY,
   DEPARTMENT OF THE NAVY, WASHINGTON, D.C., AND SHALL BE POSTED AND
   MAINTAINED BY HIM FOR SIXTY (60) CONSECUTIVE DAYS THEREAFTER, IN
   CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE
   NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDING OFFICER
   SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED
   OR DEFACED OR COVERED BY ANY OTHER MATERIAL.

3. THE CONSOLIDATED CIVILIAN PERSONNEL OFFICE SHALL, PURSUANT TO
   SECTION 203.27 OF THE REGULATIONS, REPORT TO THE FEDERAL LABOR RELATIONS
   AUTHORITY IN WRITING WITHIN THIRTY (30) DAYS FROM DATE OF THIS ORDER,
   WHAT STEPS HAVE BEEN TAKEN TO COMPLY WITH THE SAID ORDER.

EVERETTE E. THOMAS

ADMINISTRATIVE LAW JUDGE

DATED: JANUARY 25, 1979

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 EXECUTIVE ORDER 11491, AS AMENDED

LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE

WE WILL NOT FAIL TO AFFORD, OR DIRECT THE COMMANDING OFFICER OF THE
U.S. NAVAL OBSERVATORY TO FAIL TO AFFORD, THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1461, THE EXCLUSIVE REPRESENTATIVE OF OUR
EMPLOYEES, THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT CONSONANT
WITH LAW AND REGULATIONS, ON THE IMPACT OF THE REORGANIZATION OF THE
U.S. NAVAL OBSERVATORY.

WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.

DEPARTMENT OF THE NAVY

CONSOLIDATED CIVILIAN PERSONNEL . . .

DATED: . . . BY: . . .

BY: . . .

(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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES LABOR-MANAGEMENT SERVICES
ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR WHOSE ADDRESS IS:
FEDERAL LABOR RELATIONS AUTHORITY, ROOM 809, VANGUARD BUILDING, P.O. BOX
19257, 1111-20TH STREET, N.W., WASHINGTON, D.C. 10036

/1/ THE POSITIONS WHICH WERE ELIMINATED INCLUDED: GARDENER
WG-5003-06 (VACANT); ADMINISTRATIVE SERVICES MANAGER GS-0301 (VACANT);
JANITOR WG-3566-01 (VACANT); AND BOILER PLANT OPERATOR WG-5402-07.
(COMPLAINANT'S EXHIBITS 1 AND 2; RESPONDENT'S EXHIBITS 2 AND 4.)

/2/ 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 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.

/3/ THE UNION PRESENTED CONSIDERABLE TESTIMONY THAT THE FACILITY
MANAGER'S PERSONAL KNOWLEDGE OF ELECTRICAL WIRING AND OTHER MECHANICAL
ASPECTS OF THE PHYSICAL PLANT WAS THE ONLY RELIABLE SOURCE OF SUCH
INFORMATION. THE LOSS OF THIS KNOWLEDGE THROUGH HIS TERMINATION, THEY
ARGUED, CREATED AN IMMEDIATE POTENTIAL SAFETY PROBLEM. HOWEVER, IT
APPEARS FROM OTHER TESTIMONY THAT THE ABOLISHMENT OF HIS POSITION MIGHT
HAVE ONLY HASTENED HIS INEVITABLE RETIREMENT BY A SHORT PERIOD OF TIME.