[ v20 p129 ]
20:0129(15)CA
The decision of the Authority follows:
20 FLRA No. 15
NATIONAL ARCHIVES
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2578, AFL-CIO
Charging Party
Case No. 3-CA-993
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed. Although no exceptions were filed,
since the Judge's Decision was issued prior to the effective date of the
amendment to section 2423.29(a) of the Authority's Rules and
Regulations, /1/ the Authority shall consider the merits of this case.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings and conclusion that the complaint be dismissed in its
entirety.
The complaint alleges that the Respondent violated section
7116(a)(1), (5) and (8) of the Statute /2/ by violating the rights of
AFGE Local 2578 (the Union) under section 7114(a)(2)(A) of the Statute
/3/ by holding "formal discussions" with its Excepted Service employees
to recruit them for Competitive Service positions without affording the
Union an opportunity to be present at such discussions, and further by
not providing the Union with advance notice of the reassignment of
certain bargaining unit employees from Excepted Service positions to
Competitive Service positions, which notice was necessary to afford the
Union an opportunity to bargain on the impact and implementation of the
reassignments.
With regard to the first allegation, the Judge found that the
Respondent had not failed to comply with section 7114(a)(2)(A) of the
Statute, as it did not hold any formal discussions with bargaining unit
employees in the circumstances of this case, and therefore did not
violate the Statute. We agree.
Subsequent to the issuance of the Judge's Decision, in Bureau of
Government Financial Operations, Headquarters, 15 FLRA No. 87(1984),
petition for review filed sub nom. National Treasury Employees Union v.
FLRA, No. 84-1493 (D.C. Cir. Oct. 1, 1984), the Authority reiterated
that in order for a union's right to be represented under section
7114(a)(2)(A) to attach, "all elements set forth in that section must be
found to exist: (1) a discussion; (2) which is formal; (3) between
one or more representatives of the agency and one or more employees in
the unit or their representatives; (4) concerning any grievance or any
personnel policy or practices or other general conditions of
employment." /4/ In the instant case, the Authority concludes that the
General Counsel has not met the burden of proving that the "meetings" in
question were "formal discussions" within the meaning of section
7114(a)(2)(A) of the Statute. The record reveals that the contacts
initiated by the Respondent involved only two bargaining unit employees;
were separate contacts, one by the Assistant Director responsible for
recruitment, the other by his Administrative Aide; were merely
telephone calls and not meetings; and were very short conversations
simply advising the employees of the opportunity to apply for
Competitive Service positions. All other contacts (whether telephonic
or face-to-face) involving the Assistant Director, his Administrative
Aid, or a Personnel Staffing Specialist concerning the Competitive
Service vacancies, were initiated by individual bargaining unit
employees to address their individual situations and concerns. /5/
Thus, in these circumstances, we conclude that the foregoing "meetings"
or contacts with the two employees in question concerning Competitive
Service vacancies were not "formal," and did not concern any grievance,
or any personnel policy or practices or other conditions of employment
affecting employees in the unit generally, within the meaning of section
7114(a)(2)(A) of the Statute. /6/ Accordingly, the Authority concludes
that the Respondent did not fail to comply with section 7114(a)(2)(A) of
the Statute, and therefore did not violate section 7116(a)(1), (5) or
(8) of the Statute by the conduct in question.
With regard to the second allegation, the Judge concluded that the
Respondent did not violate the Statute by unilaterally reassigning six
bargaining unit employees from Excepted Service to Competitive Service
positions without first providing notice to the Union and affording the
Union an opportunity to request bargaining on the procedures and
appropriate arrangements for employees adversely affected by the
reassignments. We agree with the Judge's conclusion, but for the
following reasons, based upon decisions issued by the Authority
subsequent to the issuance of the Judge's decision.
There is no allegation or contention that the Agency owed a duty to
the Union to negotiate over the substance of its decision to assign
employees from Excepted Service to Competitive Service positions, and it
is not at issue herein. Rather, the complaint alleges a failure to
bargain over procedures and appropriate arrangements for adversely
affected employees resulting from such reassignments pursuant to section
7106(b)(2) and (3) of the Statute. The Authority has held that "where
an agency in exercising a management right under section 7106 of the
Statute, changes conditions of employment of unit employees . . . , the
statutory duty to negotiate comes into play if the change results in an
impact upon unit employees or such impact was reasonably foreseeable."
U.S. Government Printing Office, 13 FLRA 203, 204-05(1983). The
Authority thereafter held that "no duty to bargain arises from the
exercise of a management right that results in an impact or a reasonably
foreseeable impact on bargaining unit employees which is no more than de
minimis." Department of Health and Human Services, Social Security
Administration, Chicago Region, 15 FLRA No. 174(1984). The Authority
has also held that in determining whether the impact or reasonably
foreseeable impact of the exercise of a management right on bargaining
unit employees is more than de minimis, the totality of the facts and
circumstances presented in each case must be carefully examined. Thus,
in Department of Health and Human Services, Social Security
Administration, Region V, Chicago, Illinois, 19 FLRA No. 101(1985), the
Authority looked to such factors as the nature of the change (e.g., the
extent of the change in work duties, location, office space, hours, loss
of benefits or wages and the like); the temporary, recurring or
permanent nature of the change (i.e., duration and frequency of the
change affecting unit employees); the number of employees affected or
foreseeably affected by the change; the size of the bargaining unit;
and the extent to which the parties may have established, through
negotiations or past practice, procedures and appropriate arrangements
concerning analogous changes in the past. /7/ The Authority also
emphasized therein that the factors considered in the circumstances of
that case were not intended to constitute an all-inclusive list or to be
applied in a mechanistic fashion. Moreover, the Authority noted that a
determination as to whether the exercise of a management right under
section 7106(a) of the Statute gives rise to a duty to bargain under
section 7106(b)(2) and (3) will not necessarily require in every case a
determination as to whether the exercise of the management right results
in a change in a condition of employment having an impact or a
reasonably foreseeable impact on bargaining unit employees which is more
than de minimis, especially where there is no indication that the nature
and degree of impact is at issue in the case. However, in cases where
it must be determined whether the nature and degree of impact is more
than de minimis, factors such as those listed above will be considered.
Turning to the instant case, while no exceptions were filed with the
Authority, the nature and degree of the impact was at issue before the
Judge who set forth in some detail the facts and contentions of the
parties as to the issue. For the reasons which follow, we find that the
impact or reasonably foreseeable impact of the reassignments on unit
employees' conditions of employment was no more than de minimis.
Accordingly, it follows that the Respondent was under no obligation to
notify the Union and afford it an opportunity to request bargaining
pursuant to section 7106(a)(2) and (3) of the Statute concerning either
the procedures it would observe in implementing the reassignments or
appropriate arrangements for adversely affected employees. In reaching
this result, the Authority notes with respect to the nature of the
change on unit employees' conditions of employment, that the employees'
work duties remained the same. /8/ Six employees were converted from
Excepted Service to Competitive Service positions, which resulted in
their "assignment" to General Schedule (GS) ratings. The conversions
took place after it had become general knowledge that such opportunities
were available. Some employees had come forward and requested
conversion. In two cases, employees were offered conversion. In one
case this resulted in a temporary loss of pay; however, the employee
involved had volunteered because of the opportunities it offered her,
and in fact within three months she was promoted to a higher paying job.
The six employees are part of a nationwide bargaining unit of
approximately 1900 employees. The Judge found, rejecting the General
Counsel's argument to the contrary, that there was no past practice of
dealings between the parties with regard to the type of action here
taken by the Respondent.
Although the Judge found that there was no "substantial impact
adversely affecting employees," a standard we here do not apply, he also
found, and we agree in the particular facts of this case, that it
appears that the result of the Respondent's actions benefited all those
employees affected. /9/ Based on the totality of the facts and
circumstances of this case, we find that the impact or reasonably
foreseeable impact of the change in unit employees' conditions of
employment was no more than de minimis. Therefore, the Respondent was
under no obligation to notify the Union and afford it an opportunity to
request bargaining pursuant to section 7106(b)(2) and (3) of the
Statute, and its failure to do so did not constitute a violation of
section 7116(a)(1), (5) or (8) of the Statute as alleged.
ORDER
IT IS ORDERED that the complaint in Case No. 3-CA-993 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., September 11, 1985
(s) HENRY B. FRAZIER III
Henry B. Frazier III, Acting
Chairman
(s) WILLIAM J. MCGINNIS JR.
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Ana de la Torre, Esq.
Bruce D. Rosenstein, Esq.
For the General Counsel
John F. Sullivan, Esq.
John Swett, Esq.
For the Respondent
Before: FRANCIS E. DOWD
Administrative Law Judge
DECISION
Statement of the Case
This proceeding under the Federal Service Labor-Management Relations
Statute (the Statute), 92 Stat. 1191, 5 U.S.C. 7101 et seq. was
instituted by the issuance of a Complaint and Notice of Hearing dated
June 25, 1980. The Complaint was based upon an original and amended
charge filed on March 17, and June 5, 1980, respectively, by American
Federation of Government Employees, Local 2578, AFL-CIO (herein referred
to as the Charging Party or Union). The Complaint alleges that National
Archives (herein the Respondent) violated Sections 7116(a)(1)(5) and (8)
in the following manner: (1) By the conduct of Raymond Mosley and
Clarence Wiggins in conducting formal meetings with employees concerning
matters affecting general conditions of employment without affording the
Union an opportunity to be present, thus violating the Union's Section
7114(a)(2)(A) rights; (2) By unilaterally reassigning six bargaining
unit employees from Excepted Service to Competitive Service positions
without providing the Union with advance notice so that it could request
bargaining about on the impact and implementation of the reassignments.
Respondent contends that there were no formal discussions within the
meaning of Section 7114; that the General Counsel failed to adduce
evidence that Clarence Wiggins was even involved in any alleged formal
discussion; that the single incident involving Raymond Mosley did not
constitute a formal discussion; and that the alleged reassignments were
actually new appointments or new hires, a subject about which there was
no obligation to bargain. Further Respondent argues that what happened
did not result in an adverse impact on employees generally.
A hearing was held in Washington, D.C. at which the parties were
represented by counsel and afforded full opportunity to adduce evidence
and call, examine, and cross-examine witnesses and argue orally. Briefs
filed by Respondent and the General Counsel have been duly considered.
Upon consideration of the entire record in this case, including my
evaluation of the testimony and evidence presented at the hearing, and
from my observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions of law and recommended order.
Findings of Fact
1. The American Federation of Government Employees, Local 2578 was
certified in 1969 as the exclusive representative of a unit composed of
all the employees of the National Archives and the National Archives
Trust Fund Board in the Washington Metropolitan Area. At all relevant
times herein Respondent and the Union were party to a
collective-bargaining agreement. Mr. Carmen Delle Donne has been the
President of the Union since 1974.
2. Employees of the National Archives occupy positions in the
"Competitive Service" and have what is commonly referred to as Civil
Service "status" with its attendant benefits. Employees of the Trust
Fund are in the "Excepted Service" and, except for the fact that they do
not have status, it's really not clear from the present record what
differences, if any, there are between benefits received in the
Competitive versus the Excepted Service. /10/ It must be emphasized,
however, that having status is a significant benefit in itself in terms
of job protection and eligibility for consideration to be selected for
other Competitive Service positions where status is a prerequisite.
Thus, for example, a GS-4 Trust Fund employee, being in the Excepted
Service and not having status, normally would not be eligible to apply
for a Competitive Service position, regardless of the grade level
involved (GS-3, 4, 5), and even assuming the Trust Fund employee
possessed the requisite training and job experience.
3. During June or July, 1979, four or five vacancies existed within
the Microfilm Branch of the Washington National Records Service Center
(Center) and Mr. Raymond Mosley, the Assistant Director, was assigned
the responsibility of filling these vacant positions by his supervisor,
Mr. Carlton Brown. Mosley and Brown are the management officials
responsible for authorizing all recruitment actions at the Center.
Mosley began his recruiting efforts by enlisting the aid of John Tabb, a
Personnel Staffing Specialist.
4. The following methods were utilized to recruit applicants to fill
the vacancies:
a. A Vacancy Announcement (Resp. Exh. No. 1) was posted on
July 9, 1979 pursuant to the parties' negotiated Merit Promotion
Program for the position of Office Machine Operator, GS-350-2/3/4
(minimum of positions to be filled) with a closing date of July
18. In accordance with the parties' negotiated Merit Promotion
Plan, a letter dated July 20, 1979 was sent to Union President
Delle Donne requesting Local 2578's Promotion Panel nominees. Mr.
Delle Donne accordingly responded with four proposed Panel members
(Resp. Exh. No. 3). This method did not produce any qualified
applicants. Trust Fund employees were ineligible to apply.
b. On July 27, Tabb requested an OPM Register by forwarding to
OPM a form entitled Eligibles Request and Certification (Resp.
Exh. No. 2) and attached a copy of the position description.
Normally such a request would yield a list of eligible persons
from outside the Center who could then be notified of the
vacancies and any interested applicants could be interviewed and
perhaps be hired. In this case, however, OPM was unable to
respond with a list of eligibles. In lieu thereof, OPM provided
the Center with direct-hiring authority (G.C. Exh. 1(h)) on August
21.
c. Direct-Hiring authority provides an agency with authority
to recruit, evaluate qualifications and make career conditional
(or career) appointments of qualified applicants. As it relates
to this case, the direct-hiring authority permitted the Center to
recruit applicants from any source, including employees of the
Trust Fund who were heretofore ineligible because they lacked
status. Individuals hired pursuant to this type of authority
would thus be in a position to obtain status at an appropriate
time.
5. According to Raymond Mosley, he discussed with Carlton Brown the
possibility of utilizing the direct-hiring authority to recruit
employees from the Trust Fund. They also discussed with others, /11/
including John Tabb and Kathleen Richardson, /12/ the qualifications for
the job and the names of who currently employed might meet those
qualifications. (Subsequently, after applications were filed, in
Personnel or directly with Richardson, they were forwarded to John Tabb
who was the sole reviewer of the qualifications of individual
applicants.)
6. Local 2578 was not notified of Respondent's decision to utilize
its direct-hiring authority to recruit Trust Fund employees for the
vacancies at the Center. This failure to notify the Union forms the
basis for a Section 7116(a)(5) allegation.
7. There is no evidence that Respondent notified its Trust Fund
employees of these vacancies by (1) sending any written announcement to
individual employees or by (2) posting a general announcement on the
bulletin boards. Instead, the recruiting was done by word-of-mouth. It
is this conduct which forms the basis for an allegation that Respondent
conducted "formal discussions" within the meaning of Section
7116(a)(2)(A) without providing the Union an opportunity to be present.
Thus it is necessary to separately examine the recruiting incidents
alleged to be violative of the Statutes.
8. Alleged Formal Discussions Initiated by Respondent's Agents.
a. Kathleen Richardson testified she was asked by John Tabb
whether she knew of any qualified people in the Microfilm Branch
who might be interested. Accordingly, in September 1979,
Richardson called employee Kevin West and told him there was going
to be some openings and if he was interested he could submit a 171
application which would be reviewed by Mr. Tabb's office to see if
West qualified for the GS-4 grade level. West's testimony is not
in conflict with Richardson and indeed is quite brief. According
to West, Richardson called him on the phone and "asked me if I
thought I might like to be converted, and I naturally said, of
course." That was the extent of the conversation. After he hung
up the phone, West passed the word to his friends and fellow
employees who were "in the same boat." Richardson, whom I credit,
testified that West was the only employee she contacted. She
called West because she knew he wanted something more than he had,
more job security, and this was one way to help him.
b. Raymond Mosley, testified that he contacted employee Diane
Preston and told her that we had Direct-Hiring authority, "that it
was an opportunity for her to receive civil service status, and
was she interested." Preston did not testify but according to
Mosley she replied that she was interested. That was the extent
of that conversation. Subsequently, she applied and was hired.
9. Alleged Formal Discussions Initiated by Employees.
a. Raymond Mosley, Assistant Director at the Center testified
to being contacted by two employees: Dorothy Hanbury and Leola
Davis. Hanbury did not testify. According to Mosley the extent
of the conversation was that Hanbury expressed interest in
converting. According to Mosely, the first inquiry from Davis was
to express interest, the second was to ask how she would regain
the GS-5 she would give up if she converted and accepted a
down-grade to GS-4. He responded that if a GS-5 were posted she
could apply for it.
b. Kathleen Richardson, Administrative Aide to Mosely,
testified that she was separately contacted at her office by the
following employees: Kevin West, Tom Green, Danny Gorman, Dorothy
Hanbury, Sara Colcough, Leola Davis and Dianne Preston. From the
testimony of Richardson and employees Davis, West and Colcough it
is quite clear that each of these employees voluntarily went to
Richardson concerning their own individual situation to ask
questions about converting to a status position. In the cases of
Hanbury and Davis it was explained that they would have to
voluntarily accept a downgrade to GS-4. /13/ West had to file a
second application, as did some others. When Colcough inquired,
Richardson asked her about her job experience and ability to work
certain machines.
c. John Tabb testified that he was contacted by Sara Colcough
who inquired about basic qualifications for the job and the
advantages of entering the Competitive Service. Tabb's job is to
provide technical information to employees about vacancies and
employee benefits.
10. Status of Leola Davis.
Davis was a Union steward. She initiated her conversations with
Mosely and Richardson in her individual capacity. Respondent's
representatives talked to her in her as an individual and not as a Union
representative.
11. Impact of the Conversation on Employees.
All who applied for the status positions were hired. It is unclear
whether any of the employees retained the same grade as before.
Colcough and West were hired at GS-4, an increase in grade for both.
Davis voluntarily took a downgrade from GS-5 to GS-4 in January 1980 but
by April 1980 she became a GS-6 supervisor. Hanbury withdrew her
application. Davis (Tr. 37) and West testified that their duties were
essentially unchanged. /14/
Richardson whom I credit, testified that except for those who
applied, no other Trust Fund employee was eligible. The General Counsel
adduced no evidence that Cynthia Coleman was eligible or that she even
applied.
12. Notice to the Union.
As previously noted, the Union was not notified that the Center had
received the direct-hiring authority and intended to solicit
applications from employees of the Trust Fund. Although Union steward
Davis was very much involved in this whole matter and spoke to at least
two Respondent agents about her own situation, she allegedly did not
inform the Union President about it until after the conversions became
effective. In late February or early March she called Carmen Delle
Donne and he then met with her and a few other employees. /15/ Delle
Donne also testified that where Respondent was about the make changes
impacting on employees, it normally notified the Union and gave it an
opportunity to comment (G.C. Exh. 3, 4, 5).
Conclusions of Law
A. The Alleged Formal Discussions With Employees
Section 7114(a)(2)(A) of the Statute provides:
"(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at
(A) any formal discussions between one or more representatives
of the agency and one or more employees in the unit or their
representatives concerning any grievance or any personnel policy
or practices or other general condition of employment . . . "
The General Counsel contends that all the conversations between
Respondent representatives and the seven bargaining unit members were
formal discussions within the meaning of Section 7114. For a number of
reasons, 2 reject this contention.
Although there is little or no case law specifically construing the
provisions of Section 7114(a)(2)(A), cases construing Section 10(e) of
Executive Order 11491, are relevant since the terminology used in
Sections 10(e) is nearly identical to that utilized in Section
7114(a)(2)(A).
In Department of Defense, U.S. Navy, Norfolk Naval Shipyard, 1 FLRA
No. 32, May 1, 1979, an unfair labor practice case initiated under
Executive Order 11491, the Authority approved the following language
used by the federal labor relations council in its nasa decision. /16/
The language of the pertinent portion of section 10(e) . . .
makes clear that it is not the intent of the Order to grant an
exclusive representative a right to be represented in every
discussion between agency management and employees. Rather, such
a right exists only when the discussions are determined to be
formal discussions and concern grievances, personnel policies and
practices, or other matters affecting the general working
conditions of unit employees.
The Authority's decision in 1 FLRA No. 32, also adopted the following
Council language from the Council's decision reviewing the Assistant
Secretary's decision in A/SLMR No. 908:
Thus, the discussion or meeting for which representation is
sought must be "formal" in nature and the topic of the meeting
must be one or more of the matters enumerated in the last sentence
of section 10(e), i.e., "grievances, personnel policies and
practices, or other matters affecting general working conditions
of employees in the unit." Both elements must exist for the right
of representation under section 10(e) to accrue either to the
exclusive representative or, derivatively, to the employee
involved.
As to the first element, the question of whether a meeting is
"formal" or informal is essentially a factual determination which,
in our view, is a matter best resolved on a case-by-case basis by
the Assistant Secretary as finder of fact, taking into
consideration and weighing a variety of factors such as: who
called the meeting and for what purpose; whether written notice
was given; where the meeting was held; who attended; whether a
record or notes of the meeting were kept; and what was actually
discussed.
Before applying the foregoing principles to the instant case, I would
also observe that in construing the words of the Statute they are
presumed to be used in their ordinary and usual sense, and with the
meaning commonly attributed to them. Banks v. Chicago Grain Trimmers,
390 U.S. 459, 465(1968). In this regard, Webster's New International
Dictionary (3rd Ed. (1961) defines "discussion" as: "consideration of a
question in open issue, informal debate: argument . . . " The Random
House College Dictionary (1973) defines "discussion" as: " . . . the
act or an instance of discussing, consideration or examination by
argument, comment, etc; debate." Webster's New World Dictionary (2nd
Ed. 1970) defines "discussion" as: "talk or writing in which the pros
and cons or various aspects of a subject are considered . . . "
The common thread which runs through these definitions is the element
of debate or argument between two or more persons, each of whom
participates in the discussion. Thus, a discussion is different from a
speech, lecture, address, or sermon, each of which involves only one
participant (speaker) and a group of listeners. A discussion is also
different from a mere conversation which, while it involves two or more
participants who speak, the "verbal exchange of ideas" does not involve
the element of debate or argument. Accordingly, where an oral
communication is utilized to convey information, as in the making of an
announcement concerning a job vacancy, such oral communication does not,
by itself, automatically rise to the level of a "discussion", or for
that matter a "formal discussion" within the meaning of Section 7114.
In the instant case, Respondent agents Mosely and Richardson each
contacted one employee and announced the existence of job vacancies not
requiring status, for which they could file an application, if
interested. The employees who were the recipients of this announcement
were essentially listeners; they were not engaged in a debate or
argument for there was none. The fact that the employees opened their
mouths and expressed interest in the job or asked how to apply for it,
does not elevate these particular conversations to the level of a
"discussion." Furthermore, the casual informal manner in which these two
incidents occurred, compels me to also conclude that the alleged
discussions were not "formal."
With respect to the evidence showing that employees initiated
conversations with management representatives in which they inquired
about the job vacancies, their qualifications, and the advantages and
disadvantages of obtaining status, I am unaware of any statutory
prohibition to their seeking this information, nor am I of the opinion
that a union has any statutory right to be present. Clearly, then,
these incidents were not formal discussions.
Further, I would observe that the conversations related herein all
dealt with situations involving individual employees and whether or not
each of them desired to leave the Excepted Service and receive an
appointment in the Competitive Service. In my opinion this raises a
question as to whether the subject matter of the conversations involved
"matters affecting the general working conditions of unit employees" as
required by the Authority in the NASA decision, supra. Since I have
already concluded that the conversations were not found discussions, I
need not resolve this issue.
B. The Alleged Refusal to Negotiate the Impact and Implementation of
the "reassignment" of Six Unit Employees.
A more significant issue in this case is whether Respondent had an
obligation to bargain with the Union concerning the impact and
implementation of its decision to use the direct-hiring authority as a
means of filling vacancies at the Center. Section 7106(a)(2)(A) of the
Statute gives management the right "to hire" employees. Further,
Section 7106(ay(2)(C) gives management the right:
"(C) with respect to filling positions, to make selections for
appointments from--
"(i) among properly ranked and certified candidates for
promotion; or
"(ii) any other appropriate source;
Respondent argues that it has always had a right to recruit and hire
from the "outside," both from outside the Agency and outside the
negotiated Merit Promotion Plan. Therefore, it is merely a continuation
of past practice for it to hire from the outside, whether utilizing an
OPM register or an OPM direct-hiring authority, both of which constitute
an "appropriate source" within the meaning of Section 7106(a)(2)(C)(ii).
The General Counsel contends that the conversions herein were akin to
transfers or reassignments but I agree with Respondent that what
happened was more in the nature of a new hire or new appointment just as
if the vacancies had been filled from outside the agency. However, what
makes this case different from the ordinary situation where an agency
utilizes direct-hiring authority is that there are employees in the
bargaining unit who may be eligible for the vacancies being filled.
Thus, it was the lack of "status" rather than the lack of qualifying
experience which contributed to the failure in the first instance of the
Merit Promotion Program to yield any applicants who were both eligible
and qualified.
Respondent further asserts that there were no contractual
restrictions on its right to hire from the outside. Assuming this to be
true, there is also no persuasive evidence in this record to support the
contention that it has been an established practice to hire from the
outside - by any means - without prior notice to the Union. Indeed,
Mosely testified this was the only time the Center ever used the
direct-hiring authority.
As the Authority previously noted in National Treasury Employees
Union, Chapter 6 and Internal Revenue Service, New Orleans District
Office, Case No. 0-NG-9, 1 FLRA No. 102 (Aug. 23, 1979), Report No. 15,
while section 7106(a) of the Statute specifies various rights reserved
to agency management, subsection (b) provides that management's exercise
of any rights contained in subsection (a) does not preclude negotiations
on the procedures which management officials will observe in exercising
those rights. In this regard, the legislative history of the Statute
reflects the intent, with respect to the duty to bargain on the
procedures unless such negotiations would prevent the agency from acting
at all. See S. REP. No. 95-1272, 95th Cong., 2d Sess. 158(1978).
In my opinion, the foregoing precedent is applicable herein. This is
not a situation where Respondent utilized its direct-hiring authority to
hire persons from outside the Agency and the Union, not having been
provided with notice, did not have a reasonable opportunity to submit
negotiation proposals concerning the procedures to be followed by
Respondent in exercising its authority to fill vacancies. Such
proposals could have included, for example that Respondent (1) notify
all Trust Fund employees of the vacancies and (2) consider all
applications filed by Trust Fund employees. Rather, this is a case
where Respondent actually gave preference in hiring to Trust Fund
employees but in so doing, the Union still was unable to submit
proposals concerning the procedures to be followed in filling the
vacancies. It is conceivable that the Union may have submitted
proposals which would have been negotiable in that they concerned the
standards and criteria for selection, without preventing management from
exercising the right to make the actual selection or from acting at all.
/17/ At the very least, the Union could have proposed a procedure to
insure that all employees were notified and given equal opportunity to
apply. Accordingly, with respect to this threshold issue, I conclude
that Respondent had an obligation to negotiate the procedures to be
followed in implementing its direct-hiring authority.
It is well established precedent, that the duty to negotiate carries
with it a concomitant obligation to notify the Union prior to
implementation of any change made as a result of exercising a reserved
management right. In the instant case, the unilateral change consisted
of utilizing the direct-authority as a method for filling vacancies, and
the date of the change was when it commenced recruiting efforts among
its employees. The mere fact that the Respondent failed to notify the
Union does not mean, ipso facto, that the Statute has been violated. In
so acting, Respondent acted at its peril and whether it violated its
duty to bargain hinges on whether the unilateral change actually
resulted in, or had a reasonable likelihood of resulting in, substantial
impact adversely affecting employees. /18/ In the present case, we need
only be concerned with the actual impact because the change had taken
place and we can assess its impact.
As to impact, the General Counsel (Tr. 9) points to three things.
First, it is contended that Davis was demoted from GS-5 to GS-4. While
a demotion does not necessarily result in a loss of pay, apparently in
her case there was some reduction in wages, but the amount was not
specified. In any event the demotion was only temporary and within
three months she was made a GS-6 supervisor. My main reason for
concluding that her demotion did not constitute substantial adverse
impact is that it was a completely voluntary action; she did not have
to apply; she did so because she felt it would be advantageous.
Secondly the General Counsel points to Hanbury who would have been
demoted had she applied. Since she wasn't demoted, there's no adverse
impact. Thirdly, the General Counsel points to a change of job duties.
Based on the testimony of West and union steward Davis, I have already
found no change of duties, hence no adverse impact. In view of the
foregoing, and based upon a review of the entire record, I conclude that
Respondent's unilateral change did not result in substantial impact
adversely affecting employees. On the contrary, it appears that all
employees who converted to the Competitive Service benefitted thereby.
Therefore, I further find and conclude on the basis of the unique
factual situation presented herein that Respondent had no obligation to
notify the Union prior to implementing its decision to utilize the
direct-hiring authority.
ORDER
On the basis of the foregoing findings of fact and conclusions of
law, I find that National Archives has not engaged in conduct violative
of Section 7116(a)(1)(5) and (8) of the Federal Service Labor-Management
Relations Statute. Accordingly, I recommend that the complaint be
dismissed in its entirety.
(s) FRANCIS E. DOWD
FRANCIS E. DOWD
Administrative Law Judge
Dated: July 21, 1981
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Section 2423.29(a) now provides, in pertinent part, that "in the
absence of exceptions filed timely . . . , the findings, conclusions,
and recommendations in the decision of the . . . Judge shall, without
precedential significance, become the findings, conclusions, decision
and order of the Authority, and all objections and exceptions thereto
shall be deemed waived for all purposes."
/2/ Section 7116 provides, in pertinent part, as follows:
Section 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
* * * *
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter;
* * * *
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/3/ Section 7114(a)(2)(A) provides as follows:
Section 7114. Representation rights and duties
* * * *
(a)(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at--
(A) any formal discussion between one or more representatives
of the agency and one or more employees in the unit or their
representatives concerning any grievance or any personnel policy
or practices or other general condition of employment(.)
/4/ See also General Services Administration, Region 8, Denver,
Colorado, 19 FLRA No. 2(1985).
/5/ In Office of Program Operations, Field Operations, Social
Security Administration, San Francisco Region, 9 FLRA 48(1982), the
Authority concluded that when two employees approached the Assistant
District Manager involved therein without specific advance arrangements,
to discuss their personal concerns, such a meeting did not constitute a
"formal discussion" within the meaning of section 7114(a)(2)(A) of the
Statute. See also Department of Health and Human Services, Social
Security Administration, Baltimore, Maryland and Chicago, Illinois
Region, 15 FLRA No. 110(1984), and cases cited therein.
/6/ In so concluding, we find it unnecessary to decide whether
telephone calls initiated by management representatives with unit
employees may constitute "discussions," and specifically do not adopt
the Judge's comments concerning the need for debate or argument in order
for an otherwise "formal" meeting to constitute a formal "discussion"
within the meaning of section 7114(a)(2)(A) of the Statute. See
Department of Defense, National Guard Bureau, Texas Adjutant General's
Department, 149th TAC Fighter Group (ANG) (TAC), Kelly Air Force Base,
15 FLRA No. 111(1984).
/7/ Additionally, Member McGinnis indicated in a separate concurring
opinion that he would also consider, in determining de minimis issues,
when the implementation of a change would involve or adversely affect
unit employees in assessing the totality of the facts and circumstances
presented.
/8/ While the General Counsel had argued this point, the Judge found,
based on record testimony, that there was no change, and, as noted
above, no exceptions were filed with respect to any of the Judge's
findings in this case.
/9/ The fact that one employee declined the offer of a chance to
convert, believing that she would be disadvantaged temporarily, does not
in our view detract from this finding.
/10/ Since government employees are not barred from carrying extra
insurance, I am unable to rely on the testimony of Kevin West, a Trust
Fund employee, who testified that he paid $53.00 per month for a health
insurance policy as evidence that all Trust employees receive different
health insurance benefits than Center employees in the Competitive
Service. From the testimony of Tabb, Mosley and Davis, I would conclude
that health benefits were essentially the same in either system.
/11/ Mosley was uncertain but thought perhaps Clinton Wiggins might
also have been there. Wiggins did not testify. Contrary to the General
Counsel's Complaint, there is no evidence that Wiggins was involved in
any of the alleged unfair labor practices.
/12/ Kathleen Richardson is an Administrative Aide to Mosley whose
duties involved the coordination of personnel work at the Center. John
Tabb is a Personnel Staffing Specialist. I find them both to be agents
of Respondent.
/13/ Hanbury was too close to retirement to make the conversion
worthwhile. She withdrew her application.
/14/ Approximately four months after West's conversion, he performed
a new task - mounting jackets - for about two weeks. He hadn't done it
before and hasn't done it since. Based upon his overall testimony I
conclude that his conversion did not result in a change of duties.
/15/ The testimony of Delle Donne is insufficient to establish
whether, in fact, an employee named Cynthia Coleman did or did not know
of the vacancies, and did or did not apply for same. She did not
testify and the General Counsel failed to adduce any testimony
clarifying this issue or supporting Delle Donne's hearing testimony.
/16/ National Aeronautics and Space Administration (NASA),
Washington, D.C., and Lyndon B. Johnson Space Center (NASA), Houston,
Texas, A/SLMR No. 457, 3 FLRC 617 (FLRC No. 74A-95 (September 26,
1975)).
/17/ See Department of the Defense, Department of the Navy, Naval
Ordnance Station, Louisville, Kentucky, 4 FLRA No. 100 and Authority
decision cited therein.
/18/ For a discussion of actual versus probable impact see my
decision in U.S. Government Printing Office, Case No. 3-CA-569,
OALJ-81-183 (April 9, 1981).