United States Air Force and National Federation of Federal Employees (Authority decision, May 21, 1979)

Final FLRA decision under Executive Order 11491. The Authority denied review of the Assistant Secretary's unfair labor practice dismissal 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

NFFE claimed national consultation rights over an Air Training Command reorganization and alleged that the Air Force had withheld information and failed to give advance notice. The judge found that the subordinate command made the reorganization decision on its own, so the department-level consultation duty under Executive Order 11491 had not arisen. The Assistant Secretary adopted that dismissal. The Authority denied review, finding no arbitrary decision or major policy issue.

Decision snapshot

• Authority: Executive Order 11491, §§ 9(b) and 19(a)(1), (6); FLRA transition rule § 2400.2.
• Outcome: The unfair labor practice dismissal stood; review was denied.
• Key point: The national consultation right did not attach to a decision made independently by the subordinate command.

Full text (FLRA public release)

[ v01 p338 ]

01:0338(42)CA

The decision of the Authority follows:

1 FLRA No. 42
May 21, 1979

MR. ROBERT J. ENGLEHART
STAFF ATTORNEY
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
1016 16TH STREET, N.W.
WASHINGTON, D.C. 20036

RE: UNITED STATES AIR FORCE, A/SLMR
No. 1152, FLRC No. 78A-184

DEAR MR. ENGLEHART:

THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF
THE ASSISTANT SECRETARY'S DECISION, AND THE AGENCY'S OPPOSITION THERETO,
IN THE ABOVE-ENTITLED CASE.

IN THIS CASE, THE DEPARTMENT OF THE AIR FORCE (THE AGENCY), A PRIMARY
NATIONAL SUBDIVISION OF THE DEPARTMENT OF DEFENSE, FORMALLY ANNOUNCED
THAT ITS SUBORDINATE AIR TRAINING COMMAND (THE ACTIVITY) HAD DECIDED TO
REORGANIZE CERTAIN TECHNICAL TRAINING CENTERS. FOLLOWING THIS
ANNOUNCEMENT, THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES (THE UNION),
WHICH HAD BEEN GRANTED NATIONAL CONSULTATION RIGHTS UNDER SECTION 9(B)
OF THE ORDER /1/ BY THE AGENCY, FILED AN UNFAIR LABOR PRACTICE COMPLAINT
ALLEGING THAT THE AGENCY HAD VIOLATED SECTION 19(A)(1) AND (6) OF THE
ORDER BY (A) FAILING TO SUPPLY, ON REQUEST, INFORMATION CONCERNING THE
ACTIVITY'S REORGANIZATION WHICH WAS NECESSARY FOR THE UNION TO ENGAGE IN
INTELLIGENT BARGAINING, AND (B) FAILING TO GIVE THE UNION APPROPRIATE
PRIOR NOTICE OF, AND ALLOW IT TO COMMENT ON, THE REORGANIZATION.

THE ADMINISTRATIVE LAW JUDGE (ALJ) FOUND THAT EVEN THOUGH THE FORMAL
ANNOUNCEMENT OF THE REORGANIZATION WAS MADE BY THE AGENCY (AS WAS
CUSTOMARY IN ALL SUCH CASES) THE ACTUAL DECISION TO REORGANIZE WAS MADE
INDEPENDENTLY BY THE ACTIVITY, UNDER ITS OWN AUTHORITY, "WITHOUT ANY
PRIOR CONSULTATION OR OTHER INPUT" FROM THE AGENCY ITSELF.
CONSEQUENTLY, HE CONCLUDED THAT THE AGENCY'S OBLIGATION TO CONSULT WITH
THE UNION UNDER SECTION 9(B) DID NOT ARISE IN THIS CASE, AND RECOMMENDED
THAT THE UNION'S COMPLAINT BE DISMISSED.

THE ASSISTANT SECRETARY, ADOPTING THE FINDINGS, CONCLUSIONS AND
RECOMMENDATION OF THE ALJ, CONCLUDED:

(T)HE EVIDENCE ESTABLISHES THAT THE (ACTIVITY) IS NOT AN AGENCY OR A
PRIMARY NATIONAL

SUBDIVISION OF AN AGENCY WITHIN THE MEANING OF THE EXECUTIVE ORDER
AND PART 2412 OF THE

FEDERAL LABOR RELATIONS COUNCIL'S RULES AND REGULATIONS. NOR DOES
THE EVIDENCE ESTABLISH THAT

THE (ACTIVITY) WAS ACTING AS AN AGENT FOR AN AGENCY OR A PRIMARY
NATIONAL SUBDIVISION OF AN

AGENCY WHEN IT CARRIED OUT THE REORGANIZATION INVOLVED HEREIN.
ACCORDINGLY, IN AGREEMENT WITH

THE ADMINISTRATIVE LAW JUDGE, I FIND THAT THERE WAS NO OBLIGATION
UNDER SECTION 9(B) OF THE

ORDER FOR THE (AGENCY) TO ACCORD THE (UNION) TIMELY NOTICE OR THE
OPPORTUNITY TO SUBMIT

COMMENTS WITH RESPECT TO THE PROPOSAL OF THE (ACTIVITY) TO
REORGANIZE.

IN THE UNION'S PETITION FOR REVIEW IT IS ALLEGED THAT THE ASSISTANT
SECRETARY'S DECISION IS ARBITRARY AND CAPRICIOUS AND PRESENTS A MAJOR
POLICY ISSUE BECAUSE IT REPRESENTS A MARKED DEPARTURE FROM HIS TWO
EARLIER DECISIONS CONCERNING NATIONAL CONSULTATION RIGHTS. 2

AS TO THE ALLEGATION THAT THE ASSISTANT SECRETARY'S DECISION IS
ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR IN THE CIRCUMSTANCES OF
THIS CASE THAT THE ASSISTANT SECRETARY ACTED WITHOUT REASONABLE
JUSTIFICATION IN REACHING HIS DECISION. IN THIS REGARD, THE APPEAL
HEREIN FAILS TO REVEAL ANY CLEAR, UNEXPLAINED INCONSISTENCY BETWEEN THE
INSTANT DECISION AND PREVIOUSLY PUBLISHED DECISIONS OF THE ASSISTANT
SECRETARY. MOREOVER, THE APPEAL FAILS TO CONTAIN ANY SUPPORT FOR A
CONTENTION THAT THE ASSISTANT SECRETARY'S DECISION IS INCONSISTENT
EITHER WITH APPLICABLE PRECEDENT OR THE PURPOSES AND POLICIES OF THE
ORDER, AND THEREFORE NO MAJOR POLICY ISSUE IS PRESENTED WARRANTING
REVIEW.

SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS OR PRESENT A MAJOR POLICY ISSUE, THE APPEAL FAILS TO MEET
THE REQUIREMENTS FOR REVIEW AS PROVIDED IN SECTION 2400.2 OF THE
AUTHORITY'S TRANSITION RULES, WHICH INCORPORATES BY REFERENCE SECTION
2411.12 OF THE COUNCIL'S RULES. ACCORDINGLY, THE PETITION FOR REVIEW IS
HEREBY DENIED. /3/

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

CC: D. A. DRESSER

AIR FORCE

/1/ SECTION 9(B) PROVIDES:

WHEN A LABOR ORGANIZATION HAS BEEN ACCORDED NATIONAL CONSULTATION
RIGHTS, THE AGENCY,

THROUGH APPROPRIATE OFFICIALS, SHALL NOTIFY REPRESENTATIVES OF THE
ORGANIZATION OF PROPOSED

SUBSTANTIVE CHANGES IN PERSONNEL POLICIES THAT AFFECT EMPLOYEES IT
REPRESENTS AND PROVIDE AN

OPPORTUNITY FOR THE ORGANIZATION TO COMMENT ON THE PROPOSED CHANGES.
THE LABOR ORGANIZATION

MAY SUGGEST CHANGES IN THE AGENCY'S PERSONNEL POLICIES AND HAVE ITS
VIEWS CAREFULLY

CONSIDERED. IT MAY CONSULT IN PERSON AT REASONABLE TIMES, ON
REQUEST, WITH APPROPRIATE

OFFICIALS ON PERSONNEL POLICY MATTERS, AND AT ALL TIMES PRESENT ITS
VIEWS THEREON IN

WRITING. AN AGENCY IS NOT REQUIRED TO CONSULT WITH A LABOR
ORGANIZATION ON ANY MATTER ON

WHICH IT WOULD NOT BE REQUIRED TO MEET AND CONFER IF THE ORGANIZATION
WERE ENTITLED TO

EXCLUSIVE RECOGNITION.

/2/ SECRETARY OF THE NAVY, DEPARTMENT OF THE NAVY, PENTAGON, A/SLMR
NO. 924, SET ASIDE IN PART FLRC NO. 77A-146 (DEC. 29, 1978), REPORT NO.
167; DEPARTMENT OF THE NAVY, OFFICE OF CIVILIAN PERSONNEL, A/SLMR NO.
1012, SET ASIDE IN PART FLRC NO. 78A-47 (DEC. 29, 1978), REPORT NO.
167.

/3/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1124), THE INSTANT CASE WAS 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 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 IF THE CASE HAD ARISEN UNDER THE STATUTE RATHER THAN
THE ORDER.