[ v25 p541 ]
25:0541(41)CA
The decision of the Authority follows:
25 FLRA No. 41
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS, AIR FORCE LOGISTICS
COMMAND, WRIGHT-PATTERSON AIR FORCE
BASE, OHIO
Respondent
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
COUNCIL 214, AFL-CIO
Charging Party
Case No. 5-CA-50061
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached Administrative Law Judge's Decision filed by the
Department of the Air Force Headquarters, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio (the Respondent). The complaint
alleges that the Respondent violated section 7116(a)(1) and (5) of the
Federal Service Labor-Management Relations Statute (the Statute) by
unilaterally implementing a moratorium on the permanent promotion of
certain General Schedule-332 (GS-332) unit employees without providing
the American Federation of Government Employees, Council 214, AFL-CIO
(the Union) advance notice of the moratorium, and by refusing to bargain
on its impact and implementation. For the reasons stated below, we find
that the respondent violated section 7116(a)(1) and (5) as alleged.
II. Facts
By letter dated August 9, 1984, the Respondent notified the Union
that a new Factor Evaluation System classification standard for GS-332
Computer Operators would be implemented. The letter stated that
approximately 900 positions subject to application of the new standard
had been reviewed and that it was anticipated that grades of 500
positions could be affected. The letter also stated that, prior to the
implementation of the new standard, management had exercised its option
not to initiate permanent personnel actions in the GS-332 series for
grades 9 and 11. On receipt of the letter, the Union representatives
requested a briefing with management. On August 16 and 20, a
representative of the Respondent met with the Union representative and
informed him that while the classification standard was being
implemented, GS-332 Computer Operators would receive temporary
promotions into the GS-9 and 11 positions, not permanent promotions.
The Union representative was also imformed that while management might
bargain on the impact and implementation of the new classification
standard, it did not intend to bargain on the issue of temporary
promotions. On August 24, the Union Representative sent the Respondent
letters requesting bargaining over the impact and implementation of both
matters and submitting various proposals. The Respondent bargained with
the Union on the impact and implementation of the moratorium on
permanent promotions. As to this latter matter, the Respondent stated
by letter of September 5 that it discerned no charge which gave rise to
a bargaining obligation.
The parties stipulated that the moratorium was in effect from July
25, 1984 to December 24, 1984. During the moratorium, six series GS-332
unit employees at the GS-9 level received temporary promotions. The
record does not disclose why these employees received temporary
promotions.
III. Administrative Law Judge's Decision
The Judge found that the Respondent violated section 7116(a)(1) and
(5) of the Statute by changing a condition of employment when it
implemented a moratorium on permanent promotions of GS-332 Computer
Operators without bargaining on the impact and implementation of the
change. The Judge inferred that the temporary promotions given to the
six GS-332-9 Computer Operators resulted from the application of the
Respondent's moratorium on permanent promotions. The judge found that
the actual impact and the reasonably foreseeable impact of the
moratorium on employees was more than de minimis. In this regard he
found that the decision to implement the moratorium could have affected
approximately 500 positions, and that six unit employees actually were
adversely affected by the denial of permanent promotions. He further
found that the Union did not waive its bargaining rights either by the
parties' current negotiated agreement or by its failure to renew a
bargaining request after the Respondent refused to bargain. Finally, he
rejected the Respondent's argument that the complaint should be
dismissed because the proposals submitted by the Union were
non-negotiable. In this respect he noted that the Respondent's refusal
on September 5 to negotiate made no reference to the negotiability of
the proposals.
IV. Positions of the Parties
In its exceptions, the Respondent contends that the General Counsel
failed to meet its burden of proving the allegations of the complaint by
a preponderance of the evidence. The Respondent argues that the Judge
erred in inferring that promotions are normally given on a permanent
basis to GS-332 Computer Operators, and in finding that six Computer
Operators were temporarily promoted as a result of the moratorium.
Futhermore, the Respondent disputes the Judge's finding that the impact
of the moratorium was more than de minimis and that the change had a
resaonably foreseeable impact on approximately 500 GS-332 positions.
The Respondent contends that the Judge took this reference out of
context as that number related only to the number of positions that
could have had their present grade levels affected by the new
classification standard, and not to the number of temporary promotions
which could have occurred as a result of the moratorium. The Respondent
also argues, in effect, that the Union waived its bargaining rights
because the parties' negotiated agreement provided procedures for
utilizing temporary promotions. Finally, the Respondent contends that
it had no obligation to bargain because the Union's proposals, submitted
with its request to bargain, were nonnegotiable.
Neither the General Council nor the Union filed exceptions to the
Judge's Decision or an opposition to the Respondent's exceptions in this
case.
V. Analysis
In Department of Health and Human Services, Social Security
Administration, 24 FLRA No. 42 (1986), we reassessed and modified the
deminimis standard previously used to identify those changes in
conditions of employment of bargaining unit employees which require
bargaining. We stated that in order to determine whether a change
requires bargaining, we will carefully examine the pertinent facts and
circumstances presented in each case. We noted, among other things,
that principal emphasis would be placed on such general areas of
consideration as the nature and extent of the effect or reasonably
foreseeable effect of the change on equitable considerations would also
be taken into account in balancing the various interests involved.
Applying the principles of Social Security Administration to this case,
we find that the moratorium constituted a change in conditions of
employment of unit employees and that the change gave rise to a
bargaining obligation. Accordingly we find that the Respondent's
actions constituted an unfair labor practice.
As to whether the moratorium constituted a change in conditions of
employment, the record supports the Judge's finding that although
temporary promotions are used by the Respondent in some situations,
promotions are normally given on a permanent basis. Therefore, the
Respondent's action in deciding not to initiate permanent promotions in
the GS-332 series for grades 9 and 11 changed existing conditions of
employment for unit employees for the duration of the moratorium.
As to whether the change gave rise to a duty to bargain, based on our
decision in Social Securtiy Administration, we have considered the
relevant facts and circumstances, placing prinicpal emphasis on the
nature and extent of the effect and reasonably foreseeable effect of the
change on conditions of employment. The nature and extent of the
reasonably foreseeable effect of the change in conditions of employment
was such as to give rise to a bargaining obligation. At the time the
Respondent announced the moratorium on permanent promotions, it was
reasonably foreseeable that some employees who would ordinarily have
received permanent promotions would not receive them during the
unspecified duration of the moratorium and would only be eligible for
temporary instead of permanently promoted would be by regulation
ineligible for grade and pay retention in the event of an involuntary
downgrade. This fact and the obvious differences in the nature of
temporary and permanent promotions lead us to conclude that the nature
and extent of the reasonably foreseeable effect of the change on
conditions of employment of unit employees gave rise to bargaining
obligation in this instance.
We do not rely, as did the Judge, on the fact that six employees
received temporary promotions during the period of the moratorium. This
consideration has nothing to do with the effect or reasonably
foreseeable effect of the Respondent's change in conditions of
employment evident to the parties at the time the change was proposed
and implemented. Moreover, as the Judge acknowleged, the record is
silent as to the specific reason why these employees received temporary
promotions. We do not find a sufficient basis in the record for
finding, as did the Judge, that the six temporary promotions resulted
from the application of the Respondent's moratorium on permanent
promotions. The record demonstrates that the Respondent used temporary
promotions in filling positions before implementation of the moratorium,
and there is no evidence to show that Respondent's use of temporary
promotions for the six employees was related to the moratorium.
We also reject the Judge's finding as to the number of positions
which could be affected by the moratorium. The Judge stated that
"Respondent's initial letter to the Union indicating it would not
"initiate permanent personnel actions in the GS-332 series . . ." stated
that the "grades of approximately 500 positions may be affected." The
reference to the 500 positions was not to the number of employees who
might be affected by a moratorium on permanent promotions, but rather a
reference to the number of positions that could be affected by the
application of a new position classification standard (a matter over
which the parties bargained.) As we stated in Social Security
Administration, the number of employees involved in a change is not a
controlling consideration in determining whether a change gives rise to
a duty to bargain. The fact that fewer than 500 positions may have been
affected does not alter our conclusion that in the circumstances of this
case the Respondent had an obligation to bargain when it announced the
moratorium.
Finally, in agreement with the Judge and for the reasons stated by
him, we reject the Respondent's arguments that the Union waived its
bargaining rights and that the Respondent had no bargaining obligation
becaise the proposals submitted by the Union were nonnegotiable.
VI. Conclusion
Pursuant to section 2423 of the Authority's Rules and Regulations and
section 7118 of the Statute, we have reviewed the rulings of the Judge
made at the hearing, find that no prejudicual error was committed, and
thus affirm those rulings. We have considered the Judge's Decision and
the entire record, including the parties' contentions, and adopt the
Judge's findings and conclusions only to the extent consistent with our
decision. We conclude that the Respondent committed an unfair labor
practice in this case. Therefore, we shall issue the following
appropriate remedial order.
ORDER
Prusuant 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 the Department of the Air Force Headquarters, Air
Force Logistics Command, Wright-Patterson Air Force Base, Ohio shall:
1. Cease and desist from:
(a) Implementing a moratorium on the permanent promotion of Grade 9
and 11 unit employees in the Computer Operator, GS-332 series, or any
other unit employees, while applying a new classification standard,
without first notifying the American Federation of Government Employees,
Council 214, AFL-CIO, the employees' exclusive representative, and
affording it the opportunity to bargain concerning the procedures which
management will observe in effecting such change and appropriate
arrangements for employees adversely affected by such change.
(b) In any like or related manner interfering with, restraining, or
coercing its 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
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Notify the American Federation of Government Employees, Council
214, AFL-CIO of any future moratorium on permanent promotions while
applying a new classification standard, and prior to implementation,
afford it an apportunity to bargain concerning the procedures which
management will observe in effecting such change and appropriate
arrangements for employees adversely affected by such change.
(b) Post at all of its facilites where unit employees are located
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 of the Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio 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. Reasonable steps shall be taken to ensure that said
Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region V, Federal Labor
Regulations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply with this order.
Issued, Washington, D. C., February 4, 1987.
Jerry E. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, 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 implement a moratorium on the permanent promotion of
Grade 9 and 11 unit employees in the Computer Operator, GS-332 series,
or any other unit employees, while applying a new classification
standard, without first notifying the American Federation of Government
Employees, Council 214, AFL-CIO, the exclusive representative of our
employees, and affording it the opportunity to bargain concerning the
procedures which management will observe in affecting such change and
appropriate arrangements for employees adversely affected by such
change.
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 notify the American Federation of Government Employees,
Council 214, AFL-CIO of any future moratorium on permanent promotions
while applying a new classification standard, and prior to
implementation, afford it an opportunity to bargain concerning the
procedures which management will observe in effecting such change and
appropriate arrangements for employees adversely affected by such
change.
Air Force Logistics Command,
Wright-Patterson AFB, Ohio
Dated . . . Commander
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region V, Federal Labor Relations Authority, whose address is:
175 W. Jackson Boulevard, Suite 1359-A, Chicago, Illinois 60606, and
whose telephone number is: (312) 353-6306.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 5-CA-50061
DEPARTMENT OF THE AIR FORCE HEADQUARTERS,
AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 214, AFL0-CIO
Charging Party
Major W. Kirk Underwood
For the Respondent
Paul Palacio
For the Charging Party
Judith A. Ramey, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
DECISION
Statement of the Case
This case arose under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101,
et seq.
Upon an unfair labor practice charge filed by the American Federation
of Government Employees, Council 214, AFL-CIO (herein referred to as the
Union) against the Department of the Air Force Headquarters, Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, (herein
referred to as Respondent), the General Counsel of the Authority, by the
Regional Director for Region V, issued a Complaint and Notice of Hearing
alleging Respondent violated the Statute when it unilaterally
implemented a motatorium on the permanent promotion of certain unit
employee positions and refused to bargain with the Union on the impact
and implementation of the moratorium.
A hearing on the Complaint was conducted in Dayton, Ohio at which all
parties were represented and afforded full opportunity to adduce
evidence, call, examine and cross-examine witnesses and argue orally.
Briefs were filed by Respondent and the General Counsel and have been
carefully considered.
Upon the entire record in this matter, my observation of the
witnesses and their demeanor and from my evaluation of the evidence, I
make the following findings of fact, conclusions of law and
recommendations.
Since 1978 the American Federation of Government Employees, AFL-CIO,
through its agent Council 214, has been the exclusive collective
bargaining representative of a consolidated unit of approximately
70-75,000 of Respondent's employees including various Computer
Operators, series GS-332, at pay grades GS-9 and 11.
By letter dated August 9, 1984 Respondent notified Council 214
President Paul Palacio that a new Factor Evaluation System
classification standard for Computer Operator GS-332 would be
implemented. The letter revealed that approximately 900 positions
subject to application of the new standard had been reviewed and that
grades of approximately 500 positions may be affected. The letter went
on to state: "preliminary to implementation, management has exercised
its option not to initiate permanent personnel actions in the GS-332
series for grades 11 and 12."
Upon receipt of Respondent's August 9 letter Council President
Palacio requested a briefing with management. Meetings between Palacio
and Respondent's Labor Relations Officer Mick Wells were held on August
16 and 20. During these meetings Wells informed Palacio that while the
classification standards were in the process of being implemented,
GS-332 Computer Operators would receive temporary promotions into the
GS-9 and 11 positions, not permanent promotions. Palacio was also
imformed that while management might bargain on the impact and
implementation of the classification standards, it did not intend to
bargain on the issue of temporary promotions. /1/
In order to keep the two issues separate and proceed with
negotiations to whatever extent management would agree, on August 24,
1984 Palacio sent Respondent two separate letters in response to the
August 9 announcement.
The first letter made a demand to bargain over the impact and
implementation of the new classification standard and attached
negotiation proposals on this subject. The second letter was a specific
demand to bargain over the impact and implementation over management's
decision to temporarily promote bargaining unit employees in the GS-9
and 11 grades. That letter also attached negotiation proposals.
With regard to the issue of temporary promotions, on September 5,
1984 Wells sent Palacio the following letter:
This responds to your letter of 24 August 1984 wherein you
demanded to negotiate a management decision "to temporatily
promote (your) bargaining unit members in the GS-332-9 levels."
"Management has historically and consistently utilized its many
available options in determining how to fill positions. The use
of temporary promotions is among these options. We, therefore,
discern no change in personnel policies, practices, or matters
affecting working conditions which gives rise to bargaining
obligation.
Please contact me if you have any questions."
The parties engaged in no further communications regarding this
issue. However, with regard to Palacio's demand to bargain over impact
and implementation of the application of the new classification
standards for the Computer Operator GS-332 position, by letter to the
Union of September 6, 1984 Respondent agreed to negotiate, stating:
"The application of new OPM classification standards is a
relatively frequent and recurring requirement. For this reason,
we consider it appropriate at this time that we seek an agreement
applicable to not only the GS-332 issue, but to future
classification standard applications as well. The attached
proposals are offered to your consideration toward this end."
Subsequent negotiations on the application of new position
classification standards, which did not include the matter of temporary
promotions, resulting in an agreement executed by the parties on
Novemeber 8, 1984.
The parties stipulated that the moratorium on permanent promotions in
the GS-332 series was in effect from July 25, 1984 to December 24, 1984.
According to Labor Relations Officer Wells, during that period six
series GS-332 bargaining unit employees at the GS-9 and 11 levels
received temporary promotions. While the record is silent as to the
specific reason why these employees received temporary promotions,
absent an explanation by Respondent, the repository of such information,
I infer in the circumstances of the litigation of this case such
temporary promotions resulted from the application of Respondent's
moratorium on permanent promotions.
Council President Palacio testified that temporary promotions
adversely impact on employees in that an employee receiving a temporary
rather than permanent promotion would have no right to retention of
grade and pay in the event of a subsequent failure of the assigned
position to support the grade of the employee. Palacio further
testified that no employee temporarily promoted might subsequently
receive a lower evaluation when first apprased in that job than that
employee's previous evaluation and, if forced to return to the prior
grade, the employee would retain that lower appraisal making the
employee less competitive for a future promotion.
Respondent contends that imposing the moratorium did not change a
condition of employment requiring bargaining since there existed a past
practice of using temporary employees in various situations. However,
the issue herein concerns not Respondent's right to use temporary
employees, but centers on management's obligation to bargain on demand
with the Union on the impact and implementation of its privileged
decision to effectuate a moratorium on specific permanent promotions in
the particular circumstances wherein classification standards were being
changed. It is clear from the totality of the record that although
Respondent employs the use of temporary promotions in some situations,
/2/ promotions are normally given on a permanent basis. While testimony
reveals that since October 1982 Respondent temporarily promoted 1700
bargaining unit employees, the only record evidence of a situation
similar to that presented herein reveals that sometime in 1983
Respondent imposed a moratorium on permanent promotions in job series
2300 during implementation of new job standards for the series. That
action occasioned the filing of an unfair labor practice charge, the
issuance of a complaint and the execution of a settlement agreement.
Accordingly, I conclude that the moratorium on permanent promotions
herein did constitute a change in a condition of employment and, absent
evidence of a waiver on the part of the Union to bargain on the impact
and implementation of such a moratorium, /3/ I find Respondent's
contention to be without merit.
Counsel for Respondent also contends its action had, at most, minimal
impact on bargaining unit employees and accordingly a refusal to bargain
on the matter would not violate the Statute. I reject this argument.
The Authority has held that no obligation to bargain exists where the
impact of a privileged change is no more than de minimis. However, in
making such a determination the Authority will look at bother actual
impact or the reasonably foreseeable impact of the action on bargaining
unit employees. Department of Health and Human Services, Social
Security Administration, Chicago Region, 15 FLRA No. 174 (1984) and
U.S. Government Printing Office, 13 FLRA 203 (1983).
Respondent's initial letter to the Union indicating it would not
"initiate permanent personnel actions in the GS-332 series for grades 11
and 12," supra, stated that the "grades of approximately 500 positions
may be affected." Further, as found herein, six bargaining unit
employees were adversely affected by denying them permanet promotions
during the six month period the moratorium was in effect. In my opinion
both the actual impact and the reasonably foreseeable impact of the
moratorium resulted in an impact on employees which was more than de
minimis and accordingly, I conclude Respondent's contention is without
merit.
Counsel for Respondent also argues that no violation of the Statute
exists, contending: (1) The parties had negotiated contractual
procedures concering the issue herein; (2) None of the bargaining
proposals submitted by the Union with its bargaining demand were
negotiable; (3) The Union failed to request bargaining after being
"given another opportunity to do so by Respondent's letter of 6
September 1984;" and (4) Respondent's actions as a whole did not amount
to bargaining in bad faith.
(1) The negotiated agreement. Counsel for Respondent suggests that
the parties negotiated agreement provides procedures to resolve issues
concerning temporary promotions and therefore no obligation to bargain
exists. Counsel relies on Section 13:03 of the parties contract which
states: "If competitive selection procedures are required (for
temporary promotions), they shall be accomplished in accordance with
applicable rules, regulations, and Article 12 of this agreement."
Article 12 addresses Merit Promotion matters, but virtually no testimony
was received at the hearing on the applicability of Article 12 or 13 to
the situation herein. In my view the language set forth in the contract
is not so clear and comprehensive so as to unmistakably govern the
situation herein and thereby preclude any negotiations on the impact and
implementation of the freeze in permanent promotions. Rather, Article
12 of the agreement is primarily concerned with the selection process
and related procedures. Accordingly, I reject Respondent's contention.
(2) The Union's bargaining proposals. When the Union made its
request to negotiate on impact and implementation on August 24, 1984 it
also submitted to Respondent various bargaining proposals. Counsel for
Respondent now contends that the proposals were not negotialbe so the
Complaint should be dismissed. However, management refused to negotiate
with the Union for the reasons stated in its letter of September 5,
supra, which made no reference to the negotiability of the Union's
proposals. Proposals frequently change during the bargaining process,
depending upon a variety of factors, and since no bargaining occurred,
it is not possible to ascertain at this time what the Union's ultimate
proposals would have been or indeed, what Respondent might have accepted
if bargaining commenced. Accordingly, I find Respondent's argument to
be without merit.
(3) The Union's failure to repeat its request to bargain. Counsel
for Respondent contends that since Counsil President Palacio did not
renew his request to negotiate on impact and implementation after
Repondent's refusal of September 5 and, according to the testimony of
Wells, Palacio dropped certain proposals in the negotiations on the
GS-332 series without formally withdrawing them, the Union is precluded
from alleging an unfair labor practice based upon Respondent's September
5 refusal to bargain.
I find the contention to be without merit. Counsel for Respondent is
basically suggesting that a waiver arose from Palacio's failure to renew
his request to bargain by infering a withdrawl of the Union's demand to
bargain. I know of no case in these or similar circumstances which
supports such a conclusion. Indeed the theory runs counter to the
Authority's requirement that a waiver must be clear and unmistakable and
consciously yielded. Library of Congress, supra.
(4) Lack of bad faith. Counsel for Respondent argues that the
Complaint should be dismissed becaise of Respondent's conduct taken as a
whole does not reflect "bad faith", alluding specifically to the fact
that Respondent only once declared that this one issue was not
bargainable. However, the facts herein disclose that Wells informed
Palacio orally during the meetings of August 16 and 20 and again in
writing on September 5 that Respondent would not bargain with the Union
on the matter at issue herein. In any event, Respondent's action was
taken at its peril and I concluded Respondent's failure and refusal to
bargain on the impact and promotions constituted a violation of the
Statute requiring appropriate remedial action. /4/
In view of the entire foregoing I conclude Respondent violated
section 7116(a)(1) and (5) of the Statute and recommend the Authority
issue the following:
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 the Department of the Air Force Headquarters, Air
Force Logistics Command, Wright-Patterson Air Force Base, Ohio shall:
1. Cease and desist from:
(a) Implementing a moratorium on the permanent promotion of
grade 9 and 11 unit employees in the Computer Operator, GS-332
series, or any other unit employees, while applying a new Factor
Evaluation System classification standard, or any like or related
classification standard, without first notifying the American
Federation of Government Employees, Council 214, AFL-CIO, the
employees' exclusive representative, and affording it the
opportuntiy to bargain concerning the procedures which management
will observe in effecting such change and appropriate arrangements
for employees adversely affected by such change.
(b) In any like of related manner interfering with,
restraining, or coercing its employees in the exercise of rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Upon request, negotiate with the American Federation of
Government Employees, Council 214, AFL-CIO, concerning appropriate
arrangements to be made for employees who have been affected by
the implementation of a moratorium on the permanent promotion of
grade 9 and 11 unit employees in the Computer Operator, GS-332
series, which was in effect from July 25, 1984 to December 24,
1984.
(b) Upon request, negotiate with the American Federation of
Government Employees, Council 214, AFL-CIO, concerning the
procedures which management will observe in any future
implementation of a new Factor Evaluation System classification
standard, or any like or related program, and appropriate
arrangements for employees affected by such change.
(c) Post at all its facilities where unit employees are located
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 an appropriate official 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. Reasonable
steps shall be taken to ensure that said Notices are not altered,
defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Federal Labor Relations
Authority's Rules and Regulations, notify the Regional Director,
Region V, Federal Labor Relations Authority 175 W. Jackson Blvd.,
Suite 1359-A, Chicago, Illinois 60606, in writing, within 30 days
from the date of this Order, as to what steps have been taken to
comply herewith.
SALVATORE J. ARRIGO
Administrative Law Judge
Dated: July 25, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) No information was given Palacio concerning the anticipated
length of the moratorium on permanent promotions.
(2) Respondent offered testimony that "staffing moratoriums" in the
past were occasioned when a contracting out potential was recognized in
a function, the implementation of classification standard changes that
would downgrade positions, or the implementation of reorganizations or
reductions in force that would have a downward impact on grade levels.
However, the testimony was conclusionary and did not indicate the
specific nature of the imposition of a moratorium on permanent
promotions and the extent if any, of temporary promotions used during
the particular situation.
(3) See Library of Congress, 9 FLRA 421 (1982).
(4) Counsel for the General Counsel urges, as part of the remedy,
Respondent be required to bargain with the Union on the matter and apply
retroactively, as appropriate, the result of any such bargaining. The
request for retroactive application is denied. The moratorium on
permanent promotions ceased after six months and in the circumstances
herein I conclude this remedy is not appropriate. See Internal Revenue
Service, 16 FLRA No. 110 (1984).
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT implement a moratorium on the permanent promotion of
grade 9 and 11 unit employees in the Computer Operator, GS-332 series,
or any other unit employees, while applying a new Factor Evaluation
System classification standard, or any like or related classification
standard, without first notifying the American Federation of Government
Employees Council 214, AFL-CIO, the employees' exclusive representative,
and affording it the opportunity to bargain concerning the procedures
which management will observe in effecting such change and appropriate
arrangements for employees adversely affected by such change.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
WE WILL upon request, negotiate with the American Federation of
Government Employees, Council 214, AFL-CIO, concerning appropriate
arrangements to be made for employees who have been affected by the
implementation of a moratorium on the permanent promotion of grade 9 and
11 unit employees in the Computer Operator, GS-332 series, which was in
effect from July 25, 1984 to December 24, 1984.
WE WILL upon request, ntgotiate with the American Federation of
Government Employees, Council 214, AFL-CIO, concerning the procedures
which managment will observe in any future implementation of a new
Factor Evaluation System classification standard, or any like or related
program, and appropriate arrangements for employees affected by such
change.
(Agency or Activity)
Dated: . . . By: . . .
(Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region V,
whose address is: 175 W. Jackson Boulevard, Suite 1359-A, Chicago,
Illinois 60606 and whose telephone number is: (312) 353-6306.