Department of Energy, Bonneville Power Administration (Activity-Petitioner) and Columbia Power Trades Council, AFL-CIO (Labor Organization) (Authority decision, February 12, 1980)

Final FLRA representation decision. The Authority directly granted a petition to amend the name of the recognized activity in a long-standing bargaining relationship. The amendment changed neither the unit nor the representative. Under 5 U.S.C. § 7123(a)(2), orders involving appropriate unit determinations under section 7112 are excluded from judicial review.

Plain-English summary

Bonneville Power Administration moved from the Interior Department to the Energy Department, while its work and bargaining unit stayed the same. It asked the Authority to update the agency name in its recognition of the Columbia Power Trades Council. The council argued that older savings clauses preserved its agreement and made the petition unnecessary. The Authority found that the clauses did not prevent a technical recognition amendment and that an agreement between the parties alone could not formally amend the recognition. It granted the name change without altering the bargaining relationship. The Authority decided the petition directly, with no Regional Director ruling under review.

Decision snapshot

• Authority: 5 U.S.C. § 7135(b); Executive Order 11491.
• Outcome: Recognition amended to name Bonneville Power Administration, Department of Energy.
• Key point: A technical agency name change could be made by amendment of recognition without changing the unit or its agreement.

Full text (FLRA public release)

[ v02 p654 ]

02:0654(81)AC

The decision of the Authority follows:

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).