[ v08 p623 ]
08:0623(112)CA
The decision of the Authority follows:
8 FLRA No. 112
UNITED STATES DEPARTMENT OF DEFENSE,
DEPARTMENT OF THE ARMY, HEADQUARTERS,
FORT SAM HOUSTON, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2154
Charging Party
Case Nos. 6-CA-298
6-CA-380
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 CEASE AND DESIST
THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS. THEREAFTER, THE GENERAL
COUNSEL AND THE RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S DECISION.
/1/
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 (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. /2/ UPON CONSIDERATION OF
THE JUDGE'S DECISION AND THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY
HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS,
EXCEPT AS MODIFIED HEREIN.
IN CASE NO. 6-CA-298, THE JUDGE CONCLUDED THAT THE RESPONDENT
VIOLATED SECTION 7116(A)(5) AND (1) OF THE STATUTE BY GIVING THE
CHARGING PARTY, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2154 (UNION), INADEQUATE NOTICE OF ITS DECISION TO INSTITUTE A
REDUCTION-IN-FORCE (RIF), AND THEREAFTER REFUSING TO BARGAIN UPON
REQUEST. THE AUTHORITY DISAGREES. THE RECORD INDICATES, AND THE JUDGE
FOUND, THAT THE RESPONDENT NOTIFIED THE UNION THAT CERTAIN WORK WAS
BEING CONTRACTED OUT; THAT A RIF WOULD BE CONDUCTED AFFECTING CERTAIN
UNIT EMPLOYEES; THAT A MEETING WOULD BE HELD FIVE DAYS LATER TO FURNISH
RIF LETTERS TO THE EMPLOYEES; THAT THE UNION WAS INVITED TO SEND A
REPRESENTATIVE TO THE MEETING; THAT ANY QUESTIONS THE UNION MIGHT HAVE
CONCERNING THE RIF SHOULD BE REFERRED TO A PARTICULAR INDIVIDUAL WHO WAS
MOST FAMILIAR WITH RIF PROCEDURES; AND THAT DESPITE SUCH NOTICE, THE
UNION DID NOT REQUEST NEGOTIATIONS PRIOR TO THE MEETING AND DID NOT
ATTEND THE MEETING. UNDER THE FOREGOING CIRCUMSTANCES, THE AUTHORITY
FINDS THAT THE UNION WAS GIVEN ADEQUATE NOTICE OF THE RESPONDENT'S
DECISION TO CONDUCT A RIF /3/ AND AN OPPORTUNITY TO BARGAIN CONCERNING
THE IMPACT AND IMPLEMENTATION OF THAT DECISION PRIOR TO ITS
EFFECTUATION, /4/ BUT THAT THE UNION DID NOT MAKE A TIMELY REQUEST TO
BARGAIN WITH RESPECT THERETO. ACCORDINGLY, THE AUTHORITY CONCLUDES THAT
THE RESPONDENT DID NOT UNLAWFULLY REFUSE TO BARGAIN IN GOOD FAITH, UPON
REQUEST, AND THEREFORE DID NOT VIOLATE SECTION 7116(A)(5) AND (1) OF THE
STATUTE, AS ALLEGED.
WITH RESPECT TO CASE NO. 6-CA-380, HOWEVER, THE AUTHORITY FINDS, IN
AGREEMENT WITH THE JUDGE, THAT THE RESPONDENT VIOLATED SECTION
7116(A)(5) AND (1) OF THE STATUTE BY FAILING TO NOTIFY THE UNION ABOUT
ITS DECISION TO TAKE AWAY CERTAIN AUDITING DUTIES FROM THREE PAYROLL
CLERKS AND TO ESTABLISH A NEW POSITION, SO THAT THE UNION COULD MAKE A
TIMELY REQUEST TO BARGAIN CONCERNING THE IMPACT AND IMPLEMENTATION OF
SUCH DECISION ON BARGAINING UNIT EMPLOYEES. IN FURTHER AGREEMENT WITH
THE JUDGE, AND CONTRARY TO THE POSITION OF THE GENERAL COUNSEL, THE
AUTHORITY FINDS THAT A STATUS QUO ANTE REMEDY IS NOT WARRANTED HEREIN.
THUS, BALANCING THE NATURE AND CIRCUMSTANCES OF THE VIOLATION AGAINST
THE DEGREE OF DISRUPTION IN GOVERNMENT OPERATIONS THAT WOULD BE CAUSED
BY SUCH A REMEDY, THE AUTHORITY CONCLUDES THAT AN ORDER REQUIRING THE
RESPONDENT TO BARGAIN UPON REQUEST ABOUT IMPACT AND IMPLEMENTATION WILL
BEST EFFECTUATE THE PURPOSES AND POLICIES OF THE STATUTE. IN THIS
REGARD, THE AUTHORITY NOTES PARTICULARLY THAT THE CHANGES IN JOB DUTIES
IMPLEMENTED BY THE RESPONDENT HAVE NOT RESULTED IN AND ARE NOT INTENDED
BY THE RESPONDENT TO CREATE A LOSS OF GRADE OR PAY FOR ANY AFFECTED
EMPLOYEE. THUS, THE IMPACT ON EMPLOYEES WITHIN THE BARGAINING UNIT IS
MINIMAL. /5/ ACCORDINGLY, THE AUTHORITY FINDS THAT A STATUS QUO ANTE
REMEDY IS NOT REQUIRED OR NECESSARY TO EFFECTUATE THE POLICIES OF THE
STATUTE.
ORDER
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 UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF
THE ARMY, HEADQUARTERS, FORT SAM HOUSTON, TEXAS SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO NOTIFY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2154, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ITS
EMPLOYEES, ABOUT ITS
DECISION TO CHANGE OR MODIFY JOB DUTIES OR CLASSIFICATIONS OF
EMPLOYEES, AND AFFORDING THE
EXCLUSIVE REPRESENTATIVE THE OPPORTUNITY TO BARGAIN CONCERNING THE
PROCEDURES TO BE UTILIZED
IN IMPLEMENTING SUCH DECISION AND/OR APPROPRIATE ARRANGEMENTS FOR
EMPLOYEES ADVERSELY AFFECTED
BY SUCH DECISION.
(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 EFFECTUATE THE
PURPOSE AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) UPON REQUEST OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2154,
THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, MEET AND NEGOTIATE
CONCERNING THE PROCEDURES
UTILIZED IN, AND/OR APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY
AFFECTED BY, THE DECISION
TO CHANGE THE JOB DUTIES OF PAYROLL CLERKS AND TO INSTITUTE THE NEW
CLASSIFICATION OF CONTROL
CLERK.
(B) POST AT ALL FORT SAM HOUSTON, TEXAS, FACILITIES AND INSTALLATIONS
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 THE COMMANDER 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. THE COMMANDER
SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(C) NOTIFY THE REGIONAL DIRECTOR OF REGION VI OF 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.
IT IS FURTHER ORDERED THAT THE COMPLAINT IN CASE NO. 6-CA-298 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C. MAY 13, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, 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 FAIL OR REFUSE TO NOTIFY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2154, THE EXCLUSIVE REPRESENTATIVE
OF OUR EMPLOYEES, ABOUT A DECISION TO CHANGE OR MODIFY JOB DUTIES OR
CLASSIFICATIONS OF EMPLOYEES AND AFFORD THE EXCLUSIVE REPRESENTATIVE THE
OPPORTUNITY TO BARGAIN CONCERNING THE PROCEDURES TO BE UTILIZED IN
IMPLEMENTING, OR APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY
AFFECTED BY, SUCH DECISION.
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
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL, UPON REQUEST OF THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2154, THE EXCLUSIVE REPRESENTATIVE OF OUR
EMPLOYEES, MEET AND NEGOTIATE CONCERNING THE PROCEDURES UTILIZED IN,
AND/OR APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY, THE
DECISION TO CHANGE THE JOB DUTIES OF PAYROLL CLERKS AND TO INSTITUTE THE
NEW CLASSIFICATION OF CONTROL CLERK.
(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 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: OLD POST OFFICE STATION, BRYAN AND ERVAY STREET, P. O. BOX
2640, DALLAS, TEXAS 75221, AND WHOSE TELEPHONE NUMBER IS (214) 767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
EMILE HOLINER, CAPT. USAF
FOR THE RESPONDENT
STEVEN M. ANGEL, ESQUIRE
FOR THE GENERAL COUNSEL
BEFORE: FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ.
CASE NO. 6-CA-298 WAS INSTITUTED BY THE ISSUANCE OF A COMPLAINT AND
NOTICE OF HEARING ON FEBRUARY 22, 1980 BASED UPON A CHARGE FILED ON
OCTOBER 15, 1979. CASE NO. 6-CA-380 WAS INSTITUTED BY THE ISSUANCE OF A
COMPLAINT AND NOTICE OF HEARING DATED FEBRUARY 29, 1980 BASED UPON A
CHARGE FILED ON DECEMBER 31, 1979. AT THE TIME OF HEARING THESE CASES
WERE CONSOLIDATED. THE COMPLAINTS ALLEGE THAT RESPONDENT VIOLATED
SECTION 7116(A)(1) AND (5) BY (A) UNILATERALLY INSTITUTING A REDUCTION
IN FORCE IN THE TRANSPORTATION DEPARTMENT WITHOUT AFFORDING THE UNION AN
OPPORTUNITY TO BARGAIN OVER ITS IMPACT AND IMPLEMENTATION AND (B)
UNILATERALLY POSTING NOTICE OF AND RETROACTIVELY IMPLEMENTING CHANGES IN
THREE JOB POSITIONS FROM PAYROLL CLERK TO CONTROL CLERK IN THE CIVILIAN
PAY SECTION, WITHOUT AFFORDING THE UNION AN OPPORTUNITY TO BARGAIN OVER
THE IMPACT AND IMPLEMENTATION OF THE CHANGE. IN ADDITION, IN HIS POST
HEARING BRIEF, COUNSEL FOR THE GENERAL COUNSEL URGES THAT A VIOLATION OF
SECTION 7116(A)(1) AND (5) SHOULD BE FOUND BASED UPON RESPONDENT'S
UNILATERAL CONTRACTING OUT OF CERTAIN FUNCTIONS WITHIN THE
TRANSPORTATION DEPARTMENT WITHOUT AFFORDING THE UNION AN OPPORTUNITY TO
BARGAIN OVER ITS IMPACT AND IMPLEMENTATION. /6/
AT THE HEARING IN SAN ANTONIO, TEXAS, ALL PARTIES WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, ADDUCE EVIDENCE, EXAMINE AND CROSS-EXAMINE
WITNESSES, AND ARGUE ORALLY. THEREAFTER, RESPONDENT AND COUNSEL FOR
GENERAL COUNSEL FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED. TO THE
EXTENT APPLICABLE, THE PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
SUBMITTED BY THE PARTIES HAVE BEEN ADOPTED WITH APPROPRIATE
MODIFICATION. FURTHER, THE RESPONDENT'S MOTION TO CORRECT THE
TRANSCRIPT HAS BEEN CAREFULLY REVIEWED AND IS HEREBY GRANTED.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, FROM MY
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE
TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING, I MAKE THE FOLLOWING:
FINDINGS OF FACT
1. THE CHARGING PARTY HEREIN, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2154, HEREINAFTER CALLED THE UNION, IS, AND
HAS BEEN AT ALL MATERIAL TIMES HEREIN, A LABOR ORGANIZATION WITHIN THE
MEANING OF 5 U.S.C. 7103(A)(4).
2. THE UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF THE ARMY,
HEADQUARTERS, FORT SAM HOUSTON, TEXAS, HEREINAFTER CALLED RESPONDENT,
IS, AND HAS BEEN AT ALL MATERIAL TIMES HEREIN, AN AGENCY WITHIN THE
MEANING OF 5 U.S.C. 7103(A)(3).
3. AT ALL TIMES MATERIAL HEREIN THE FOLLOWING PERSONS HAVE OCCUPIED
THE POSITIONS SET OPPOSITE THEIR NAMES, AND AT ALL TIMES MATERIAL HEREIN
HAVE BEEN AND ARE NOW AGENTS OF RESPONDENT, ACTING ON ITS BEHALF, AND
SUPERVISORS WITHIN THE MEANING OF 5 U.S.C. 7102(A)(10).
H. B. BUCKLEY, JR. CIVILIAN PERSONNEL OFFICER
JOHN COERS LABOR RELATIONS SPECIALIST, CIVILIAN PERSONNEL OFFICE
RANDY GIBSON STAFFING SPECIALIST, CIVILIAN PERSONNEL OFFICE
PETRA SANCHEZ CHIEF, CIVILIAN PAY SECTION
4. AT ALL TIMES MATERIAL HEREIN, RESPONDENT RECOGNIZED THE UNION AS
THE EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE OF THE FOLLOWING
DESCRIBED UNIT:
ALL FULL TIME, PERMANENT, APPROPRIATED FUND, GENERAL SCHEDULE AND
WAGE GRADE AND
NON-PROFESSIONAL EMPLOYEES UNDER THE COMMAND JURISDICTION OF THE
COMMANDER, HEADQUARTERS, FORT
SAM HOUSTON, FORT SAM HOUSTON, TEXAS, EXCLUDING PROFESSIONAL
EMPLOYEES, ALL SUPERVISORY
EMPLOYEES, FIREFIGHTERS AND FIRE PROTECTION EMPLOYEES, GUARDS,
MANAGEMENT OFFICIALS, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN IN A PURELY CLERICAL
CAPACITY, ALL
NON-APPROPRIATED FUND EMPLOYEES, AND ALL TEMPORARY AND ALL PART-TIME
EMPLOYEES.
5. AT ALL TIMES MATERIAL HEREIN, RESPONDENT AND THE UNION HAVE BEEN
PARTIES TO A COLLECTIVE BARGAINING AGREEMENT COVERING EMPLOYEES IN THE
UNIT DESCRIBED IN PARAGRAPH 6 ABOVE.
CASE NO. 6-CA-298
6. ON JANUARY 31, 1979, RESPONDENT CONDUCTED A REGULARLY SCHEDULED
LABOR-MANAGEMENT MEETING. PRESENT AT THIS MEETING WERE AGENTS OF THE
RESPONDENT AND REPRESENTATIVES OF THE FOUR LABOR ORGANIZATIONS WHICH
WERE COLLECTIVE BARGAINING AGENTS FOR VARIOUS GROUPS OF RESPONDENT'S
EMPLOYEES. PRESENT FOR THE UNION WAS ADDIE VALEDEZ, ITS PRESIDENT. THE
PURPOSE OF THIS MEETING WAS TO INFORM THE VARIOUS LABOR ORGANIZATIONS OF
MATTERS OF GENERAL INTEREST. THIS MEETING WAS NOT FOR THE PURPOSE OF
CONDUCTING ANY NEGOTIATIONS ON SPECIFIC MATTERS. DURING THE MEETING
RESPONDENT MENTIONED THAT A MORATORIUM HAD BEEN LIFTED AND THAT IT WOULD
BEGIN CONSIDERATION OF CONTRACTING OUT OF VARIOUS FUNCTIONS. THERE WAS
NO DETAILED DISCUSSION CONCERNING ANY PROVISION FOR CONTRACTING OUT.
THE MEETING LASTED APPROXIMATELY AND HOUR AND A HALF. THERE WAS NO
DISCUSSION OF ANY REDUCTION IN FORCE.
7. BY LETTER DATED FEBRUARY 5, 1979, RESPONDENT'S AGENT, H. B.
BUCKLEY, SENT THE UNION A MEMORANDUM PURPORTING TO REPRESENT WHAT WAS
DISCUSSED AT THE JANUARY 31, 1979, MEETING. I CREDIT THE UNION
PRESIDENT'S TESTIMONY THAT, IN FACT, THIS MEMORANDUM RECITED IN SPECIFIC
DETAIL MATTERS WHICH WERE DISCUSSED ONLY IN A GENERAL WAY AT THE JANUARY
31, 1979, MEETING. AT THAT, THIS MEMORANDUM DID NOT STATE THAT ANY
DEFINITE DECISION HAD BEEN MADE BUT, RATHER, INDICATED ONLY THAT
RESPONDENT WOULD BEGIN "PRELIMINARY WORK FOR POSSIBLE CONTRACTING OUT"
OF CERTAIN TRANSPORTATION FUNCTIONS. IN ADDITION, IT INDICATED THE
FURTHER POSSIBILITY OF CONTRACTING OUT FIVE OTHER AREAS, INCLUDING THE
LAUNDRY, IN THE FUTURE. HOWEVER, VALADEZ CREDIBLY TESTIFIED THAT THE
LAUNDRY HAD BEEN UNDER CONSIDERATION FOR CONTRACTING OUT FOR AT LEAST
FOUR YEARS. THERE WAS NO MENTION IN THIS MEMORANDUM OF ANY REDUCTION IN
FORCE.
A. FROM THE FOREGOING, I AM UNABLE TO CONCLUDE THAT RESPONDENT HAD
YET MADE A DEFINITE DECISION TO CONTRACT OUT THE TRANSPORTATION
FUNCTIONS; BUT THE UNION NOW HAD INFORMATION THAT THIS WAS A
POSSIBILITY, ESPECIALLY IN VIEW OF THE MEMORANDUM'S SPECIFICITY WITH
RESPECT TO THE NUMBER OF BUS DRIVER POSITIONS INVOLVED; I.E. 13
INCLUDING A SUPERVISOR.
8. BETWEEN JANUARY AND JULY 23, 1979, RESPONDENT MADE NO CONTACT
WITH THE UNION CONCERNING ANY FEASIBILITY STUDY OR ANY PLANS FOR
CONTRACTING OUT WORK. ACCORDING TO HAROLD BUCKLEY, RESPONDENT'S
CIVILIAN PERSONNEL OFFICER, IT WAS SOMETIME DURING THIS PERIOD THAT THE
PERSONNEL OFFICER RECEIVED A MANPOWER DOCUMENT FROM HIGHER
HEADQUARTERS.
THE DOCUMENT CONTAINED A YEAR-END MANPOWER CEILING; I.E., A STAFFING
FIGURE WHICH COULD NOT BE EXCEEDED AS OF SEPTEMBER 30, THE LAST DAY OF
THE FISCAL YEAR. THE MANPOWER DOCUMENT ALSO CONTAINS A LIST OF SPECIFIC
JOB CATEGORIES AND GRADES. AS OF JULY 25, THE 14 BUS DRIVER POSITIONS
HAD ALREADY BEEN ELIMINATED FROM THE MANPOWER DOCUMENT. WHETHER THEY
HAD BEEN ELIMINATED BEFORE OR AFTER THE FEASIBILITY STUDY, WAS NOT KNOWN
BY MR. BUCKLEY. THERE WAS NO NOTIFICATION TO THE UNION OF THE REDUCTION
IN CEILING OR OF ITS APPARENT IMPACT ON BUS DRIVERS.
9. ALSO BETWEEN JANUARY AND JULY 23, 1979, RESPONDENT MADE A
DECISION TO INITIATE ITS CONTRACTING-OUT PROCEDURE AND TO SOLICIT BIDS
FROM PRIVATE CONTRACTORS TO PERFORM WORK THEN BEING PERFORMED BY
GOVERNMENT EMPLOYEES. RESPONDENT ITSELF COULD ALSO SUBMIT A BID.
NEITHER THE UNION NOR THE EMPLOYEES INVOLVED WERE INFORMED OF THIS
DECISION. PRECISELY WHEN ALL THIS WAS DONE WAS NOT KNOWN BY THE
MANAGEMENT AGENTS WHO TESTIFIED AT THE HEARING. ESSENTIALLY, THE
WITNESSES WERE PERSONNEL SPECIALISTS WHO WERE NOT TOO FAMILIAR WITH THE
PROCUREMENT PROCESS.
10. ON OR ABOUT JULY 10, 1979, RESPONDENT BEGAN TO PREPARE A
RETENTION REGISTER FOR USE IN DETERMINING JOB RIGHTS IN THE EVENT OF A
REDUCTION IN FORCE INVOLVING BUS DRIVERS. THE UNION WAS NOT INFORMED OF
THIS ACTION.
11. ON MONDAY, JULY 23, 1979, RESPONDENT'S AGENT, JOHN COERS, CALLED
VALADEZ AND INFORMED HER THAT BIDS FOR THE CONTRACTING OUT WOULD BE
OPENED ON JULY 25, 1979. COERS ASKED IF MS. VALADEZ WISHED TO BE
PRESENT. MS. VALADEZ REPLIED THAT SHE WAS OPPOSED TO ANY CONTRACTING
OUT AND THAT SHE DID NOT WANT TO ATTEND BECAUSE HER PRESENCE MIGHT
APPEAR TO BE SUPPORT FOR RESPONDENT'S ACTIONS.
ALTHOUGH RESPONDENT ITSELF HAD ALREADY TAKEN STEPS TO PREPARE FOR A
"POSSIBLE" RIF, I CREDIT THE TESTIMONY OF VALADEZ THAT NO MENTION OF ANY
REDUCTION IN FORCE WAS REVEALED BY COERS AT THIS TIME. IN THIS REGARD I
REJECT TESTIMONY BY COERS TO THE CONTRARY AND NOTE RESPONDENT'S POSITION
AT THE HEARING AND THROUGH ITS OWN WITNESSES THAT A FINAL DECISION ON
CONTRACTING OUT WAS NOT POSSIBLE UNTIL THE BIDS WERE OPENED AND
THEREFORE ANY PRIOR NOTIFICATION OF A RIF WOULD BE PREMATURE. I
CONCLUDE THAT COERS, WHILE NOT AT LIBERTY TO TALK ABOUT A RIF, ASSUMED,
THAT VALADEZ WAS CAPABLE OF PUTTING TWO AND TWO TOGETHER AND ARRIVING AT
THE CONCLUSION THAT "POSSIBLE" CONTRACTING OUT COULD RESULT IN A
"POSSIBLE" RIF, BUT THIS IS NOT THE SAME AS OFFICIAL NOTIFICATION THAT
RESPONDENT WAS DEFINITELY CONTRACTING OUT, AND DEFINITELY INSTITUTING A
RIF.
12. ON WEDNESDAY, JULY 25, THE BIDS WERE OPENED AND AN AWARD OF
CONTRACT WAS MADE. THUS, A PORTION OF THE BUS DRIVING WORK PERFORMED BY
THE TRANSPORTATION DEPARTMENT WAS CONTRACTED OUT. SPECIFICALLY, THE
TRANSPORTATION DEPARTMENT PROVIDES BUS AND TAXI SERVICE FOR FORT SAM
HOUSTON. THE BUS SERVICE INVOLVED PROVIDING SHUTTLE BUS SERVICE AROUND
THE BASE, SCHOOL BUS SERVICE, AND BUS SERVICE FOR ACADEMY STUDENTS. THE
CONTRACTING OUT WAS FOR TWELVE SCHOOL BUSES. WHILE IT IS UNCLEAR
WHETHER THIS WAS THE ENTIRE SCHOOL BUS FUNCTION, IT IS CLEAR THAT THE
SHUTTLE BUS AND ACADEMY BUS SERVICE WAS NOT AFFECTED.
13. ON THURSDAY, JULY 26, COERS CALLED VALADEZ AND INFORMED HER FOR
THE FIRST TIME THAT: (A) A CONTRACT HAD BEEN AWARDED, AND WORK WAS
BEING CONTRACTED OUT; (B) THE BUS DRIVERS EFFECTED WERE GOING TO BE
RIF'D; AND (C) A MEETING WAS SCHEDULED FOR MONDAY, JULY 30 /7/ AT WHICH
THE EMPLOYEES WOULD BE FURNISHED WITH LETTERS CONCERNING THE REDUCTION
IN FORCE. /8/ COERS INVITED VALADEZ TO SEND A REPRESENTATIVE TO THE
MEETING AND SUGGESTED THAT IF SHE HAD ANY QUESTIONS CONCERNING THE RIF
SHE SHOULD CONTACT RANDAL GIBSON, THE STAFFING SPECIALIST MOST FAMILIAR
WITH RIF PROCEDURES.
14. ON MONDAY, JULY 30, INDIVIDUALIZED RIF LETTERS WERE GIVEN TO 7
BUS DRIVERS AND 5 MOTOR POOL OPERATORS AT THE SCHEDULED MEETING. /9/
VALADEZ DID NOT ATTEND BUT WAS THEREAFTER INFORMED OF WHAT HAPPENED FROM
THE EMPLOYEES. THAT SAME WEEK SHE CONFRONTED H. B. BUCKLEY WITH A
DEMAND FOR BARGAINING. BUCKLEY INDICATED THAT THERE WAS NOTHING HE
COULD DO SINCE THE MATTER HAD BEEN ORDERED BY HIGHER HEADQUARTERS.
RESPONDENT'S AGENT, RANDY GIBSON, RECONFIRMED THIS POSITION IN THE
HEARING OF THIS MATTER WHEN HE NOTED (TR. 149) THAT RESPONDENT COULD NOT
HAVE ALTERED ANY OFFICIAL ACTION TAKEN.
15. ARTICLE XXII, OF THE COLLECTIVE BARGAINING AGREEMENT (G.C.
EXHIBIT NO. 4) STATES AS FOLLOWS, WITH RESPECT TO "CONTRACTING OUT":
22-1. THE EMPLOYER AND THE UNION AGREES THAT DECISIONS REGARDING THE
CONTRACTING OUT OF
WORK ARE AREAS WITHIN THE SOLE DISCRETION OF THE EMPLOYER AND HIGHER
AUTHORITY.
22-2. IT WILL BE THE POLICY OF THE EMPLOYER TO CONSULT WITH THE
UNION PRIOR TO CONTRACTING
OUT WORK INVOLVING THE UNIT OF RECOGNITION IN THOSE INSTANCES WHERE
THE CONTRACTING OUT OF
WORK IS WITHIN THE DISCRETION OF THE EMPLOYER. WHEN IT BECOMES KNOWN
THAT CONTRACTING OUT OF
WORK INVOLVING THE UNIT OF RECOGNITION IS ORDERED BY HIGHER
HEADQUARTERS, THE UNION WILL BE
INFORMED.
22-3. THIS DOES NOT INCLUDE THE PARTIES FROM NEGOTIATING AGREEMENTS
PROVIDING APPROPRIATE
ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE IMPACT OF
REALIGNMENT OF WORK FORCES OR
TECHNOLOGICAL CHANGE.
CASE NO. 6-CA-380
16. AS OF APRIL 1979 AND CONTINUING THROUGH NOVEMBER 1979, PAYROLL
CLERKS EMPLOYED IN ITS CIVILIAN PAY OFFICE PROCESSED PAYROLL ACTIONS,
KEPT TIME CARDS AND COMPLETED VARIOUS PAYROLL REPORTS. IN ADDITION, IT
WAS PART OF THE PAYROLL CLERK'S DUTIES TO PERFORM AUDITING FUNCTIONS.
SPECIFICALLY, EVERY 3 TO 4 PAY PERIODS A GROUP OF THREE PAYROLL CLERKS
WOULD BE ASSIGNED TO AUDIT THE WORK OF OTHER PAYROLL CLERKS. THIS
AUDITING DUTY HAD BEEN PERFORMED FOR 3 TO 4 YEARS ON A ROTATING BASIS.
17. FROM THE TESTIMONY OF MRS. MARY QUINN, POSITION CLASSIFICATION
SPECIALIST, IT APPEARS THAT AGENCY MANAGEMENT, AT SOMETIME PRIOR TO
APRIL 1979, MADE A DECISION TO REMOVE THE AUDITING DUTIES FROM THE
EXISTING PAYROLL CLERK JOB DESCRIPTION AND TO ESTABLISH A NEW POSITION.
MRS. QUINN WAS CALLED IN TO ASSIST IN PREPARING THE NEW POSITION
DESCRIPTION. AS PART OF HER ANNUAL JOB AUDIT, SHE ALSO EXAMINED THE
PAYROLL CLERKS' DUTIES FROM THE STANDPOINT OF ACCOMPLISHING WHAT
MANAGEMENT HAD REQUESTED (TR. 209). SHE COMPLETED THE NEW DESCRIPTIONS
IN MAY. ESSENTIALLY, THE "CONTROL TYPE DUTIES" WERE REMOVED FROM THE
EXISTING DESCRIPTION (TR. 210, 198). OFFICIALLY, THE NEW POSITION WAS
PAYROLL CLERK. HOWEVER, THE 2 PAYROLL CLERKS WHO TESTIFIED AT THE
HEARING. REFERRED TO THE POSITIONS AS "CONTROL CLERKS," AS DID ALSO
MANAGEMENT IN ITS NOVEMBER 21, 1979 NOTICE TO ALL PAYROLL PERSONNEL
(G.C. EXH. NO. 5). THE UNION WAS NOT NOTIFIED ABOUT THE NEW POSITION OR
THE DELETION OF DUTIES IN THE EXISTING POSITION.
IN PARAGRAPH NO. 2 OF THE OLD POSITION DESCRIPTION, THE FOLLOWING WAS
ELIMINATED:
"EXAMINES, AUDITS, AND VERIFIES ACCURACY, PROPRIETY, AND COMPLETENESS
OF TIME, LEAVE AND
PAYROLL RECORDS, PREPARED BY OTHER CLERKS IN THE SAME OR LOWER
GRADES;"
PARAGRAPH NO. 4 OF THE OLD POSITION DESCRIPTION WAS ELIMINATED IN ITS
ENTIRETY:
"ON AN INTERMITTENT BASIS, ASSIGNS WORK TO, TRAINS, AND REVIEWS THE
WORK OF OTHER TIME,
LEAVE, AND PAYROLL CLERKS, OF THE SAME OR LOWER GRADE."
A NEW PARAGRAPH NO. 4 WAS ADDED AS FOLLOWS:
"TYPES MISCELLANEOUS FORMS PERTINENT TO COMPLETING PAYROLLS. TYPING
DOES NOT REQUIRE SKILL
EQUAL TO THAT REQUIRED BY COMPETITIVE EXAMINATION."
18. THE NEW POSITIONS WERE NOT IMPLEMENTED IMMEDIATELY BECAUSE THE
SUPERVISORS REQUESTED A DELAY IN ORDER TO GIVE ALL THE PAYROLL CLERKS A
CHANCE TO ROTATE THROUGH THAT TYPE OF POSITION AND RECEIVE TRAINING IN
PERFORMING THOSE DUTIES. LABOR RELATIONS OFFICER JOHN COERS WAS AWARE
OF THE CHANGES BUT THE UNION WAS NOT NOTIFIED.
19. ON THE AFTERNOON OF NOVEMBER 21, 1979, CIVILIAN PAYROLL SECTION
SUPERVISOR SANCHEZ INFORMED THE PAYROLL CLERKS OF THE CHANGES. MS.
VALADEZ APPARENTLY WAS AT HOME AND WAS CALLED BY SANCHEZ AROUND 4:40
P.M. SHE TOLD VALADEZ THAT SHE WAS ABOLISHING 3 PAYROLL CLERK POSITIONS
AND CREATING 3 AUDITING CLERK POSITIONS, THAT SHE HAD ALREADY SELECTED
FOR THOSE POSITIONS, AND THAT SHE HAD BEEN TOLD BY CIVILIAN PERSONNEL
SHE HAD AUTHORITY TO DO THIS. FURTHER, VALADEZ QUOTED SANCHEZ AS SAYING
"I WAS ALSO TOLD THAT I DID NOT HAVE TO LET THE UNION KNOW. I AM ONLY
NOTIFYING YOU BECAUSE-- BECAUSE YOU WORK HERE." THE FOREGOING IS
UNDENIED; SANCHEZ DID NOT TESTIFY. RESPONDENT'S WRITTEN NOTIFICATION
DATED NOVEMBER 21 (G.C. EXH. NO. 5) ADVISING EMPLOYEES OF THE FOREGOING
AND IDENTIFYING THE THREE EMPLOYEES SELECTED WAS SHOWN TO EMPLOYEES ON
NOVEMBER 21 AND A COPY MAILED TO VALADEZ.
20. DAVID NIXON, STAFFING SPECIALIST, TESTIFIED THAT THE REASON THE
NEW JOB OF CONTROL CLERK WAS NOT POSTED IS BECAUSE THE CONCLUSION WAS
FIRST MADE THAT THERE WAS NO SUBSTANTIAL CHANGE OF DUTIES, NO
REEVALUATION OF QUALIFICATIONS REQUIRED, NO CHANGE OF TITLE, SERIES,
GRADE, OR JOB DESCRIPTION NUMBER, AND NO KNOWN PROMOTION POTENTIAL
INVOLVED. ACCORDINGLY, IT WAS CONCLUDED THAT THE REASSIGNMENT PROCEDURE
COULD BE UTILIZED.
21. MS. MARY QUINN TESTIFIED THAT IF THE DUTIES AND RESPONSIBILITIES
REMOVED FROM A JOB WERE "SIGNIFICANT" IT COULD RESULT AND HAS RESULTED
IN DEMOTION TO A LOWER GRADE (TR. 215). A DEMOTION ALSO COULD HAVE
OCCURRED IF THE AUDITING AND CONTROL-TYPE DUTIES PLACED IN THE NEW JOB
DESCRIPTION WERE DEEMED TO BE "LEAD OR SUPERVISORY IN NATURE" (TR. 202).
NEITHER OF THESE DETERMINATIONS WERE MADE IN THIS CASE SO THE GRADE
LEVEL WAS NOT CHANGED.
22. PAYROLL CLERKS VALADEZ AND LORENZA JONES BOTH EXPRESSED CONCERN
THAT THE REMOVAL OF DUTIES MIGHT RESULT IN THEIR DOWNGRADING. WHILE
CONCEDING THAT NO MANAGEMENT OFFICIAL HAD EVER SAID THEY WOULD BE
DOWNGRADED, THEY HAD RECEIVED NO ASSURANCES TO THE CONTRARY. THE
NOVEMBER 21 NOTICE TO EMPLOYEES WAS SILENT WITH RESPECT TO THE
POSSIBILITY OR NOT OF DOWNGRADING. ACCORDING TO THE UNCONTRADICTED
TESTIMONY OF VALADEZ (TR. 175) SHE WAS GIVEN TO UNDERSTAND THAT THE
AUDITING DUTIES WERE A PRIMARY REASON FOR JUSTIFICATION OF THE GS-5
GRADE.
DISCUSSION AND CONCLUSIONS OF LAW
A. CASE NO. 6-CA-298
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 THE RIF DECISION WAS PROVIDED TO VALADEZ, THE UNION
PRESIDENT, AND THAT THE LATTER FAILED TO REQUEST NEGOTIATIONS PRIOR TO
IMPLEMENTATION OF THE DECISION TO INSTITUTE A RIF. 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). IT HAS ALSO BEEN HELD THAT AN 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.
I HAVE FOUND THAT THE FIRST NOTIFICATION OF A REDUCTION IN FORCE
OCCURRED ON JULY 26, 1979 WHEN COERS CALLED VALADEZ TO TELL HER THE
OPENING OF BIDS ON THE PREVIOUS DAY HAD RESULTED IN A DECISION TO
CONTRACT OUT WORK AND A DECISION TO INSTITUTE A REDUCTION IN FORCE. I
CONCLUDE THAT RESPONDENT PRESENTED THE UNION WITH A FAIT ACCOMPLI AND
THAT SUCH NOTIFICATION WAS INADEQUATE. ACCORDINGLY, RESPONDENT VIOLATED
SECTION 7116(A)(5) AND (1) OF THE STATUTE.
I REJECT RESPONDENT'S CONTENTION THAT THE UNION WAS PROVIDED WITH
NOTICE OF A RIF PRIOR TO JULY 26. AT BEST, THE FEBRUARY 5 MEMORANDUM TO
ALL UNIONS WHO ATTENDED THE JANUARY 31 MEETING, MERELY STATED THAT A
STUDY WOULD BE CONDUCTED TO DETERMINE THE FEASIBILITY OF CONTRACTING OUT
CERTAIN TRANSPORTATION FUNCTIONS. AS POINTED OUT BY RESPONDENT, THE NEW
PROCEDURES NOW PERMITTED AN AGENCY TO ALSO SUBMIT A BID. ACCORDINGLY,
NO FINAL DECISION COULD BE MADE UNTIL THE BIDS WERE OPENED. I ALSO
REJECT RESPONDENT'S ARGUMENT THAT CONTRACTING OUT ALWAYS LEADS TO A RIF
AND THAT, THEREFORE, NOTIFICATION OF POSSIBLE CONTRACTING OUT WAS
TANTAMOUNT TO NOTIFICATION OF A POSSIBLE RIF. IF RESPONDENT REALLY
THOUGHT THIS TO BE THE CASE, TI COULD HAVE AND, INDEED, SHOULD HAVE
FORMALLY AND SPECIFICALLY NOTIFIED THE UNION OF THE POSSIBLE RIF WHEN IT
INITIATED THE PROCEDURE TO SOLICIT BIDS SOMETIME IN THE SPRING OF 1979.
IF THE RESPONDENT REALLY WAS CONCERNED WITH ITS STATUTORY OBLIGATION TO
PROVIDE THE UNION WITH ADEQUATE NOTICE OF AN IMPENDING RIF, IT WOULD
HAVE AND, INDEED, SHOULD HAVE NOTIFIED THE UNION IN EARLY JULY WHEN
RESPONDENT ITSELF WAS ASSEMBLING THE RETENTION REGISTER FOR THE RIF.
ASSUMING, ARGUENDO, THAT RESPONDENT REALLY DID NOT KNOW WHAT THE
OUTCOME WOULD BE UNTIL THE BIDS WERE ACTUALLY OPENED, IT DID KNOW THAT
TIME WAS OF THE ESSENCE AND THAT IF A RIF WERE INSTITUTED IT HAD TO BE
(1) PROCEDURALLY VALID ACCORDING TO RIF REGULATIONS, AND (2) IT HAD TO
ACCOMPLISH THE OBJECTIVE OF REMOVING THE AFFECTED EMPLOYEES FROM THE
PAYROLL BEFORE THE END OF THE FISCAL YEAR. FROM THE TESTIMONY OF
RESPONDENT'S WITNESSES (TR. 116, 121, 124, 161) IT IS QUITE CLEAR THAT
THE REQUIREMENT OF 60 DAYS NOTICE LOOMED LARGE IN THE DECISION TO START
ASSEMBLING A RETENTION REGISTER IN EARLY JULY RATHER THAN WAITING UNTIL
THE BIDS WERE SUBSEQUENTLY OPENED. RESPONDENT'S KNOWLEDGE THAT TIME WAS
OF THE ESSENCE AND ITS CONCERN FOR COMPLIANCE WITH RIF REGULATIONS WERE
NOT ACCOMPANIED BY ANY CORRESPONDING CONCERN FOR THE EMPLOYEES INVOLVED
OR ITS COLLECTIVE BARGAINING OBLIGATION TO THE UNION. INSTEAD,
RESPONDENT PROCEEDED IN SECRECY TO PREPARE FOR A RIF EVEN BEFORE THE
DECISION TO INSTITUTE A RIF WAS ALLEGEDLY MADE.
NOTWITHSTANDING THE RECEIPT OF INADEQUATE NOTICE, THE UNION THROUGH
ITS PRESIDENT REQUESTED BARGAINING ONLY TO BE MET WITH THE REPLY THAT
NOTHING COULD BE DONE BECAUSE HIGHER HEADQUARTERS MADE THE DECISION. IT
IS NO WONDER THAT CIVILIAN PERSONNEL OFFICER BUCKLEY RESPONDED AS HE
DID. FROM HIS TESTIMONY AND THAT OF COERS AND GIBSON, IT IS QUITE CLEAR
THAT THEY REGARDED THEMSELVES ONLY AS PERSONNEL TECHNICIANS WHO CARRY
OUT MANAGEMENT DECISIONS MADE ELSEWHERE IN THE HIERARCHY. GIVEN THE
FACT THAT PRIOR TO THE OPENING OF BIDS, THE PERSONNEL OFFICE HAD ALREADY
RECEIVED A MANPOWER DOCUMENT ELIMINATING 14 BUS DRIVER POSITIONS (TR.
124, 125), I CAN READILY UNDERSTAND WHY MR. BUCKLEY WOULD TELL MS.
VALADEZ THAT "THERE WAS NOTHING REALLY, HE COULD DO ABOUT IT, THAT HE
WAS PURELY ACTING ON ORDERS FROM HIGHER HEADQUARTERS." (TR. 22).
ACCORDINGLY, I CONCLUDE THAT EVEN AFTER GIVING THE UNION INADEQUATE
NOTICE OF THE RIF, RESPONDENT REFUSED TO BARGAIN UPON REQUEST. I
THEREFORE CONCLUDE THAT RESPONDENT REFUSED TO BARGAIN IN VIOLATION OF
7116(A)(5) /10/ OF THE STATUTE AND, BY THE SAME CONDUCT, ALSO VIOLATED
SECTION 7116(A)(1). /11/
B. CASE NO. 6-CA-380
AS IN THE CASE OF THE REDUCTION IN FORCE, IT HAS LONG BEEN
ESTABLISHED, EVEN UNDER THE EXECUTIVE ORDER, THAT THERE EXISTS AN
OBLIGATION TO BARGAIN OVER THE IMPACT AND IMPLEMENTATION OF ANY CHANGES
IN JOB DUTIES. /12/ THE INSTANT CASE REVEALS THAT RESPONDENT HAD
DECIDED PRIOR TO APRIL, 1979, TO REMOVE AUDITING FUNCTIONS FROM PAYROLL
CLERK DUTIES AND ESTABLISH 3 CONTROL CLERK POSITIONS. THIS DECISION HAD
AN IMPACT ON THE EMPLOYEES INVOLVED. RATHER THAN NOTIFYING THE UNION
AND AFFORDING THEM AN OPPORTUNITY TO BARGAIN CONCERNING THE IMPACT AND
IMPLEMENTATION OF SAID PROCEDURES, RESPONDENT UNILATERALLY INSTITUTED
THE CHANGES. THUS, THE SAME RESPONDENT WHICH PRESENTED THE UNION WITH A
FAIT ACCOMPLI AS TO THE REDUCTION IN FORCE, REPEATED ITS CONDUCT WITH
RESPECT TO THE REMOVAL OF DUTIES FROM THE JOB DESCRIPTION OF THE PAYROLL
CLERKS.
RESPONDENT'S DEFENSE RESTS COMPLETELY ON ITS RELIANCE ON THE
SO-CALLED EXPERT TESTIMONY OF ITS OWN POSITION CLASSIFIER, MRS. MARY
QUINN. IT MAY VERY WELL BE THAT MS. QUINN IS AN EXPERT IN HER OWN
FIELD, I.E. RENDERING ADVICE TO MANAG8EMENT CONCERNING PERSONNEL-TYPE
PROBLEMS, ESPECIALLY JOB CLASSIFICATION. BUT SHE ALSO WORKS FOR
MANAGEMENT, AS THE EVIDENCE HERE INDICATES, AND HER JOB IS NOT ONLY TO
RENDER TECHNICAL ADVICE ON WHAT IS AND IS NOT REQUIRED BY OPM AND AGENCY
REGULATIONS, BUT SHE ALSO IS ABLE TO ADVICE HOW THESE REGULATIONS MAY BE
UTILIZED TO ACCOMPLISH MANAGEMENT OBJECTIVES. FOR EXAMPLE, IN THIS
CASE, HER OPINION THAT THE CHANGE OF DUTIES WAS NOT "SIGNIFICANT"
PERMITTED RESPONDENT TO USE THE REASSIGNMENT PROCEDURE AND AVOID POSTING
THE JOB. I AM NOT SUGGESTING THAT THIS MANAGEMENT DECISION WAS
ILL-ADVISED OR MOTIVATED BY ANTI-UNION ANIMUS. BUT JUST BECAUSE
RESPONDENT'S CLASSIFIER MADE A DETERMINATION THAT A CHANGE OF DUTIES IS
"INSIGNIFICANT" AND THAT THERE WAS NO ADVERSE IMPACT ON THE EMPLOYEES,
FOR PURPOSES OF CONFORMING TO APPLICABLE PERSONNEL REGULATIONS, IT DOES
NOT FOLLOW THAT THE FEDERAL LABOR RELATIONS AUTHORITY SHOULD READ THE
SAME CONCLUSION IN APPLYING THE PROVISIONS OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, TO THE SAME SET OF FACTS.
IN MY OPINION, THE CHANGE OF DUTIES WAS INDEED SIGNIFICANT AND
SUBSTANTIAL AND NOT ONLY COULD, BUT IN FACT WAS, PERCEIVED BY EMPLOYEES
AS THREATENING THEIR GRADE. EVEN MS. QUINN CONCEDES THAT THE JOBS WOULD
BE DOWNGRADED TO A GS-4 IF THE NEW CONTROL CLERK POSITIONS WERE
DETERMINED TO BE "LEAD OR SUPERVISORY IN NATURE." ALTHOUGH THE AUDITING
DUTIES ELIMINATED WERE ONLY PERFORMED INTERMITTENTLY, THEY WERE QUITE
RESPONSIBLE AND ARGUABLY OF A SUPERVISORY CHARACTER. THEY ARE THE KIND
OF SUBSTANTIAL AND RESPONSIBLE DUTIES WHICH COULD BE GRADE DETERMINING,
DEPENDING UPON THE CIRCUMSTANCES. ACCORDING TO MS. QUINN, SHE CONCLUDED
THAT THESE DUTIES WERE NOT GRADE DETERMINATIVE. ANOTHER CLASSIFIER
COULD, IN MY OPINION, REACH A DIFFERENT CONCLUSION. NEVERTHELESS, THE
ELIMINATION OF SUCH RESPONSIBLE DUTIES AT THE SAME TIME THAT TYPING
DUTIES NOT REQUIRING "COMPETITIVE EXAMINATION" ARE ADDED TO THE POSITION
DESCRIPTION, WOULD HARDLY CAUSE A PAYROLL CLERK TO REASONABLY BELIEVE
HIS OR HER JOB HAD NOT BEEN CHANGED SUBSTANTIALLY. THIS IS ESPECIALLY
TRUE WHEN ONE CONSIDERS WHICH JOB OFFERS THE BETTER OPPORTUNITY FOR
ADVANCEMENT, NOT JUST IN THIS OFFICE, BUT ELSEWHERE IN THE AGENCY AND
THE GOVERNMENT.
WHEN SUPERVISOR PEREZ INFORMED THE UNION PRESIDENT OF RESPONDENT'S
IMPLEMENTATION OF ITS DECISION TO REMOVE DUTIES FROM ONE JOB AND
ESTABLISH THE NEW CONTROL CLERK POSITION, SHE WENT OUT OF HER WAY TO LET
THE UNION KNOW PRECISELY HOW UNIMPORTANT AND POWERLESS IT WAS. SHE TOLD
VALADEZ THAT, ACCORDING TO THE CIVILIAN PERSONNEL OFFICE SHE HAD
AUTHORITY TO DO WHAT SHE DID AND "DID NOT HAVE TO LET THE UNION KNOW."
SHE CONCLUDED BY SAYING: "I AM ONLY NOTIFYING YOU BECAUSE-- BECAUSE YOU
WORK HERE." AS FAR AS I'M CONCERNED SHE RECEIVED THE WRONG ADVICE.
I FIND AND CONCLUDE THAT RESPONDENT FAILED TO FULFILL ITS OBLIGATION
TO NOTIFY THE UNION ABOUT ITS DECISION TO TAKE AWAY DUTIES FROM THE
PAYROLL CLERKS SO THAT THE UNION COULD MAKE A TIMELY REQUEST TO BARGAIN
ABOUT IMPACT AND IMPLEMENTATION. THUS, RESPONDENT VIOLATED SECTION
7116(A)(5) AND (1) OF THE STATUTE BY THIS CONDUCT.
REMEDY
THERE IS NO DISPUTE THAT RESPONDENT HAD A RESERVED MANAGEMENT RIGHT
UNDER THE STATUTE (1) TO MAKE THE DECISION TO HAVE A REDUCTION IN FORCE,
AND (2) TO MAKE THE DECISION TO REASSIGN DUTIES AND ESTABLISH NEW
POSITION DESCRIPTIONS. BUT, AS NOTED ABOVE, RESPONDENT FAILED TO
FULFILL ITS STATUTORY OBLIGATION TO GIVE ADEQUATE NOTICE OF ITS DECISION
AND REASONABLE OPPORTUNITY TO THE UNION TO BARGAIN ABOUT THE IMPACT AND
IMPLEMENTATION OF SUCH DECISIONS.
IT IS WELL ESTABLISHED UNDER DECISIONS OF THE ASSISTANT SECRETARY
THAT A STATUS QUO ANTE REMEDY BASED ON THE FAILURE TO NEGOTIATE THE
IMPACT AND IMPLEMENTATION OF SUCH DECISIONS WOULD NOT BE WARRANTED.
/13/ HOWEVER, IT IS QUITE CLEAR THAT THE RESPONDENT SHOULD AT LEAST BE
ORDERED TO BARGAIN UPON REQUEST CONCERNING IMPACT AND IMPLEMENTATION OF
THE DECISIONS.
IN ITS BRIEF, COUNSEL FOR THE GENERAL COUNSEL MAKES AN IMPASSIONED
PLEA TO DISREGARD DECISIONS BY THE ASSISTANT SECRETARY UNDER THE
EXECUTIVE ORDER AND, INSTEAD, TO FASHION REMEDIES WHICH ARE MORE
MEANINGFUL AND EFFECTIVE, AND WHICH AMOUNT TO SOMETHING MORE THAN JUST A
SLAP AT THE WRIST. IN THIS REGARD, COUNSEL POINTS OUT THAT THE
AUTHORITY MAY ISSUE DECISIONS PURSUANT TO THE STATUTE OVERRULING AND
SUPERSEDING PRIOR DECISIONS BY THE FEDERAL LABOR RELATIONS COUNCIL AND
THE ASSISTANT SECRETARY UNDER EXECUTIVE ORDER 11491, AS AMENDED.
HOWEVER, AS RECENTLY AS JUNE 3, 1980, THE AUTHORITY HAD AN
OPPORTUNITY TO SPEAK ON THE SUBJECT OF STATUS QUO ANTE REMEDIES IN A
REDUCTION IN FORCE SITUATION AND DID SO. IN THE ADJUTANT GENERAL'S
OFFICE, PUERTO RICO AIR NATIONAL GUARD, 3 FLRA NO. 55, THE AUTHORITY
CONCLUDED THAT A REMEDIAL ORDER REQUIRING RESCISSION OF RESPONDENT'S
ACTION IN CONDUCTING A RIF PURSUANT TO A NEW REGULATION WAS NOT
WARRANTED. THUS, IT REJECTED THE JUDGE'S RECOMMENDATION FOR A STATUS
QUO ANTE REMEDY.
AS AN ADMINISTRATIVE LAW JUDGE, I AM CONSTRAINED TO FOLLOW CASE
PRECEDENT AND THE AUTHORITY'S RULING IN THE FOREGOING CASE IS QUITE
CLEAR TO ME, AT LEAST WITH RESPECT TO THE RIF IN CASE NO. 6-CA-298.
INSOFAR AS THE CHANGE OF DUTIES IN CASE NO. 6-CA-380 IS CONCERNED, I
BELIEVE IT WOULD BE LESS DISRUPTIVE, IF THIS VIOLATION WERE ALSO
REMEDIED WITH AN ORDER SIMPLY REQUIRING BARGAINING UPON REQUEST ABOUT
IMPACT AND IMPLEMENTATION. SECRETARY OF NAVY, PENTAGON, 7 A/SLMR 932.
ACCORDINGLY, HAVING FOUND RESPONDENT IN VIOLATION OF 5 U.S.C.
7116(A)(1) AND (5) OF THE STATUTE, I RECOMMEND THAT THE FEDERAL LABOR
RELATIONS AUTHORITY ADOPT THE FOLLOWING ORDER WHICH IS DESIGNED TO
EFFECTUATE THE PURPOSES AND POLICIES OF FEDERAL SERVICES LABOR
MANAGEMENT STATUTE:
ORDER
PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND 5 U.S.C. 7135, THE AUTHORITY
HEREBY ORDERS THAT UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF
THE ARMY, HEADQUARTERS, FORT SAM HOUSTON, TEXAS, SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY INSTITUTING A REDUCTION IN FORCE WITHOUT AFFORDING
THE UNION AN
OPPORTUNITY TO BARGAIN OVER THE IMPACT AND IMPLEMENTATION OF SAID
DECISION.
(B) UNILATERALLY CHANGING TERMS AND CONDITIONS OF EMPLOYMENT BY
ALTERING THE DUTIES OF
PAYROLL CLERKS AND ESTABLISHING CONTROL CLERKS POSITIONS WITHOUT
AFFORDING THE UNION AN
OPPORTUNITY TO BARGAIN CONCERNING THE IMPACT AND IMPLEMENTATION OF
SAID CHANGES.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) NOTIFY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2154, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE OF ANY INTENDED REDUCTION IN FORCE, AND,
UPON REQUEST, BARGAIN IN
GOOD FAITH ON THE IMPACT AND IMPLEMENTATION OF SUCH ACTION.
(B) NOTIFY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2154, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE, OF ANY INTENDED CHANGES IN THE DUTIES OF
EMPLOYEES AND, UPON
REQUEST, BARGAIN IN GOOD FAITH ON THE IMPACT AND IMPLEMENTATION OF
SAID CHANGES.
(C) PRESERVE AND, UPON REQUEST, MAKE AVAILABLE TO THE FEDERAL LABOR
RELATIONS AUTHORITY FOR
EXAMINATION AND COPYING, ALL RECORDS NECESSARY TO ASCERTAIN
COMPLIANCE WITH THIS ORDER.
(D) POST AT ALL FORT SAM HOUSTON, TEXAS, FACILITIES AND INSTALLATIONS
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
RESPONDENT 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. RESPONDENT SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(E) NOTIFY THE REGIONAL DIRECTOR OF REGION VI OF 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.
FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
DATED: OCTOBER 17, 1980
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 THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT UNILATERALLY INSTITUTE A REDUCTION IN FORCE WITHOUT
AFFORDING AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
2154 OR ANY OTHER EXCLUSIVE REPRESENTATIVE, ADEQUATE NOTICE AND A
REASONABLE OPPORTUNITY TO BARGAIN OVER IMPLEMENTATION OF SAID DECISION
AND THE IMPACT ON ADVERSELY AFFECTED EMPLOYEES.
WE WILL NOT UNILATERALLY CHANGE TERMS AND CONDITIONS OF EMPLOYMENT BY
ALTERING EMPLOYEES' JOB DUTIES WITHOUT AFFORDING AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2154, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE, ADEQUATE NOTICE AND A REASONABLE OPPORTUNITY TO BARGAIN
OVER THE IMPLEMENTATION OF SAID DECISION AND THE IMPACT ON ADVERSELY
AFFECTED EMPLOYEES.
WE WILL NOTIFY AND, UPON REQUEST, BARGAIN IN GOOD FAITH WITH AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2154, TO THE EXTENT
CONSONANT WITH LAW AND REGULATION, CONCERNING THE IMPACT ON EMPLOYEES OF
THE REDUCTION IN FORCE IN THE TRANSPORTATION DEPARTMENT AND THE REMOVAL
OF JOB DUTIES FROM PAYROLL CLERKS.
WE WILL NOT IN ANY MANNER INTERFERE WITH, RESTRAIN OR COERCE OUR
EMPLOYEES IN THE EXERCISE OF RIGHTS GUARANTEED BY THE FEDERAL SERVICES
LABOR-MANAGEMENT RELATIONS STATUTE.
DATED: BY:
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 FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: OLD POST OFFICE STATION, P. O. BOX 2640, DALLAS, TX 75221.
--------------- FOOTNOTES: ---------------
/1/ THE RESPONDENT'S OPPOSITION TO THE GENERAL COUNSEL'S EXCEPTIONS
IS UNTIMELY AND WAS NOT CONSIDERED BY THE AUTHORITY.
/2/ THE RESPONDENT EXCEPTED TO CERTAIN CREDIBILITY FINDINGS MADE BY
THE JUDGE. THE DEMEANOR OF WITNESSES IS A FACTOR OF CONSEQUENCE IN
RESOLVING ISSUES OF CREDIBILITY, AND THE JUDGE HAS HAD THE ADVANTAGE OF
OBSERVING THE WITNESSES WHILE THEY TESTIFIED. THE AUTHORITY WILL NOT
OVERRULE A JUDGE'S RESOLUTION WITH RESPECT TO CREDIBILITY UNLESS A CLEAR
PREPONDERANCE OF ALL THE RELEVANT EVIDENCE DEMONSTRATES THAT SUCH
RESOLUTION WAS INCORRECT. THE AUTHORITY HAS EXAMINED THE RECORD
CAREFULLY, AND FINDS NO BASIS FOR REVERSING THE JUDGE'S CREDIBILITY
FINDINGS.
/3/ THE AUTHORITY NOTES THAT THE DECISION TO CONDUCT A RIF IS A RIGHT
RESERVED EXCLUSIVELY TO MANAGEMENT UNDER SECTION 7106(A)(2)(A) OF THE
STATUTE. SEE, E.G., NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
1167 AND DEPARTMENT OF THE AIR FORCE, HEADQUARTERS, 31ST COMBAT SUPPORT
GROUP (TAC), HOMESTEAD AIR FORCE BASE, FLORIDA, 6 FLRA NO. 105(1981),
PROPOSAL 4. SEE ALSO INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
AFL-CIO, LOCAL 121 AND U. S. GOVERNMENT PRINTING OFFICE, WASHINGTON,
D.C. 8 FLRA NO. 35(1982).
/4/ SECTION 7106(B)(2) AND (3) OF THE STATUTE PROVIDES:
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION; OR
(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY
AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
/5/ SEE, FEDERAL CORRECTIONAL INSTITUTION, 8 FLRA NO. 111(1982).
/6/ IN THE GENERAL COUNSEL'S OPENING STATEMENT AT THE HEARING IT WAS
MADE QUITE CLEAR THAT CONTRACTING OUT WAS NOT AT ISSUE. (TR. 14).
THEREAFTER, COUNSEL OBJECTED ON THE GROUNDS OF MATERIALITY TO QUESTIONS
BY RESPONDENT CONCERNING CONTRACTING OUT AND STATED AS FOLLOWS: "WE
HAVE NOT ALLEGED THE UNILATERAL CHANGES BY INSTITUTING THE CONTRACTING
OUT. IT IS OUR POSITION THAT THEY ARE TWO SEPARATE INSTANCES, AND THE
CONTRACTING OUT HAS NO RELEVANCE TO THE REDUCTION IN FORCE." (TR. 33).
AT NO TIME DURING THE HEARING DID THE GENERAL COUNSEL CHANGE HIS
POSITION AND MOVE TO AMEND THE COMPLAINT. BUT FOR THE GENERAL COUNSEL'S
INSISTENCE THAT CONTRACTING OUT WAS NOT AT ISSUE, RESPONDENT MAY VERY
WELL HAVE PREPARED HIS DEFENSE DIFFERENTLY OR CALLED ADDITIONAL
WITNESSES, ESPECIALLY THOSE FAMILIAR WITH THE CONTRACTING OUT PROCESS.
IN THESE CIRCUMSTANCES, I AM UNABLE TO CONCLUDE THAT THE ISSUE RAISED BY
THE GENERAL COUNSEL IN ITS POST-HEARING BRIEF WAS FULLY LITIGATED AT THE
HEARING OR THAT RESPONDENT HAS NOT BEEN PREJUDICED BY THIS BELATED
CHANGE OF POSITION. THE MOTION IS DENIED.
/7/ VALADEZ THOUGHT THE MEETING WAS ON JULY 27 BUT COERS AND GIBSON
THOUGHT IT WAS ON JULY 30. GIBSON WAS IN THE BEST POSITION TO KNOW
BECAUSE HE WAS DIRECTLY INVOLVED. MOREOVER, THE LETTERS HANDED OUT WERE
DATED JULY 30 AND IT WAS DURING THE WEEK BEGINNING JULY 30 THAT
EMPLOYEES SOUGHT OUT VALADEZ.
/8/ ON THIS DISPUTED FACT, I RESOLVE A CREDIBILITY ISSUE IN FAVOR OF
COERS, RATHER THAN VALADEZ. COERS VERSION SEEMED MORE PLAUSIBLE AND
OTHERWISE FITTED IN BETTER WITH THE ENTIRE SEQUENCE OF EVENTS. ON THIS
PARTICULAR POINT, HIS TESTIMONY WAS MORE PERSUASIVE. I WOULD FURTHER
CONCLUDE, HOWEVER, FROM THE TENOR AND TONE OF HIS CONVERSATION AS
RELATED BY BOTH WITNESSES, THAT COERS WAS PRIMARILY ACTING AS A CONDUIT
THROUGH WHICH THE UNION WAS BEING ADVISED ABOUT AN ACCOMPLISHED ACT.
/9/ BY MOTION DATED JUNE 6, 1980, COUNSEL FOR GENERAL COUNSEL MOVED
TO STRIKE CERTAIN EVIDENCE CONTAINED IN RESPONDENT'S BRIEF WHICH WAS NOT
SUBMITTED AT THE HEARING. BY RESPONSE DATED JUNE 12 RESPONDENT CONTENDS
THAT BECAUSE THE ADMINISTRATIVE LAW JUDGE REQUESTED "ARGUMENTS AND CASE
CITATIONS" WITH RESPECT TO THE APPROPRIATENESS OF GENERAL COUNSEL'S
REQUEST FOR A STATUS QUO REMEDY, IT WAS ENTITLED TO SUBMIT EVIDENCE
PURSUANT TO SECTION 2423.19(O) OF THE REGULATIONS. THAT SECTION,
HOWEVER, CONCERNS THE TAKING OF OFFICIAL NOTICE OF MATERIAL FACT NOT
APPEARING IN THE RECORD "WHICH IS AMONG THE TRADITIONAL MATTERS OF
JUDICIAL NOTICE" AND CONCERNING WHICH THE PARTIES WERE GIVEN ADEQUATE
NOTICE. SECTION 2423.19(O) IS INAPPLICABLE TO THE EVIDENCE PRESENTED IN
RESPONDENT'S BRIEF CONCERNING WHAT HAPPENED TO THE DRIVERS AFFECTED BY
THE REDUCTION-IN-FORCE AND, IN ADDITION, NO NOTICE WAS PROVIDED. THE
MOTION TO STRIKE IS HEREBY GRANTED.
/10/ UNITED STATES DEPARTMENT OF NAVY, 3 A/SLMR 376; CF. IOWA STATE
STABILIZATION OFFICE, 4 A/SLMR 784.
/11/ AAFES PACIFIC EXCHANGE SERVICE, 4 A/SLMR 790.
/12/ NORTHEASTERN PROGRAM CENTER, 6 A/SLMR 654; AAFES PACIFIC
EXCHANGE SYSTEM, 4 A/SLMR 790.
/13/ DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
JACKSONVILLE DISTRICT, CASE NO. 4-CA-50(1), 3 FLRA NO. 103(JULY 17,
1980); THE ADJUTANT GENERAL'S OFFICE, PUERTO RICO AIR NATIONAL GUARD, 3
FLRA NO. 55(JUNE 3, 1980); DEPARTMENT OF THE AIR FORCE, 47TH FLYING
TRAINING WING, LAUGHLIN AIR FORCE BASE, TEXAS, 2 FLRA NO. 24(DECEMBER 5,
1979); NATIONAL SCIENCE FOUNDATION, 1 FLRA NO. 116(SEPTEMBER 24, 1979);
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, SOUTHWEST REGION,
1 FLRA NO. 70 (JUNE 15, 1979); SOCIAL SECURITY ADMINISTRATION, BUREAU
OF HEARINGS AND APPEALS), A/SLMR NO. 1134, FLRC NO. 78A-143, 1 FLRA NO.
30(APRIL 27, 1979); DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
SERVICE, INDIANAPOLIS, INDIANA, 7 A/SLMR 844(1977); DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE, GREENSBORO DISTRICT OFFICE, 8 A/SLMR
329(1978); UNITED STATES DEPARTMENT OF NAVY, 3 A/SLMR 375(1973).