Internal Revenue Service and Brookhaven Service Center (Respondent) and National Treasury Employees Union and National Treasury Employees Union, Chapter 99 (Charging Party) (Authority decision, September 29, 1981)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

At the IRS Brookhaven Service Center, management restricted how many union representatives could attend certain meetings. A judge found violations of Executive Order 11491 on three dates. The Authority adopted the findings for the October 18 and November 17 meetings but found the record insufficient to prove a violation for November 16. It dismissed that part of the complaint and ordered the IRS to stop changing the established meeting practice without notice and an opportunity to confer.

Decision snapshot

• Authority: 5 U.S.C. § 7135(b).
• Outcome: Two violation findings adopted; November 16 allegation dismissed.
• Key point: The General Counsel had not proved what happened at the disputed November 16 meeting.

Full text (FLRA public release)

[ v06 p713 ]

06:0713(127)CA

The decision of the Authority follows:

6 FLRA No. 127

INTERNAL REVENUE SERVICE
AND BROOKHAVEN SERVICE CENTER
Respondent

and

NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 99
Charging Party

Case No. 2-CA-36

DECISION AND ORDER

THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED RECOMMENDED DECISION
AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT
HAD ENGAGED IN UNFAIR LABOR PRACTICES UNDER EXECUTIVE ORDER 11491, AS
AMENDED, ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT IT CEASE AND
DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION. THEREAFTER, THE
RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S RECOMMENDED DECISION AND
ORDER.

THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2423.1 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.1). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE).

PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE JUDGE MADE AT THE HEARING AND FINDS NO
PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON
CONSIDERATION OF THE JUDGE'S RECOMMENDED DECISION AND ORDER AND THE
ENTIRE RECORD IN THIS CASE, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS REGARDING THE OCTOBER 18, AND
NOVEMBER 17, 1978 MEETINGS. HOWEVER, CONTRARY TO THE JUDGE, THE
AUTHORITY HAS DETERMINED THAT THE RECORD DOES NOT CONTAIN SUFFICIENT
EVIDENCE TO SUPPORT A FINDING THAT AN UNFAIR LABOR PRACTICE OCCURRED ON
NOVEMBER 16, 1978. THE AUTHORITY NOTES THAT THE GENERAL COUNSEL HAD THE
DUTY IN THIS INSTANCE OF PROVING ITS CASE. IN THIS REGARD, THE
AUTHORITY FINDS THE UNION REPRESENTATIVE WAS UNABLE TO RECALL THE
SUBJECT SHE SOUGHT TO DISCUSS THAT DATE AND MANAGEMENT HAD NO
RECOLLECTION OF ANY SUCH MEETING. BASED ON THE EVIDENCE PRESENTED
HEREIN THE AUTHORITY CONCLUDES THAT A FINDING OF A VIOLATION OF THE
EXECUTIVE ORDER WITH REGARD TO THE NOVEMBER 16, 1978 MEETING IS NOT
WARRANTED. ACCORDINGLY, THE AUTHORITY DOES NOT ADOPT THE JUDGE'S
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS IN THAT REGARD. THE SECTION
OF THE COMPLAINT REGARDING EVENTS OF THAT DATE IS HEREBY DISMISSED. /1/

ORDER

PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2400.2) AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HEREBY
ORDERS THAT THE INTERNAL REVENUE SERVICE, BROOKHAVEN SERVICE CENTER,
SHALL:

1. CEASE AND DESIST FROM:

(A) PROHIBITING THE NATIONAL TREASURY EMPLOYEES UNION (NTEU) AND
NTEU, CHAPTER 99 FROM HAVING MORE THAN ONE REPRESENTATIVE PRESENT AT
FORMAL DISCUSSIONS AND AT INFORMAL MEETINGS WITH MANAGEMENT OFFICIALS AT
THE LEVEL OF BRANCH CHIEF AND ABOVE, OR OTHERWISE CHANGING ESTABLISHED
PAST PRACTICES AFFECTING THE WORKING CONDITIONS OF UNIT EMPLOYEES,
WITHOUT FIRST NOTIFYING THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU,
CHAPTER 99, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ITS EMPLOYEES,
AND AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER ON
SUCH MATTERS TO THE EXTENT CONSONANT WITH LAW AND REGULATION.

(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.

2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
   PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:

(A) POST AT ITS FACILITY AT THE BROOKHAVEN SERVICE CENTER 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 DIRECTOR, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE
THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.

(B) NOTIFY THE REGIONAL DIRECTOR, REGION II, 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.

ISSUED, WASHINGTON, D.C., SEPTEMBER 29, 1981

RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY

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 PROHIBIT THE NATIONAL TREASURY EMPLOYEES UNION (NTEU) AND
NTEU, CHAPTER 99 FROM HAVING MORE THAN ONE REPRESENTATIVE PRESENT AT
FORMAL DISCUSSIONS AND AT INFORMAL MEETINGS WITH MANAGEMENT OFFICIALS AT
THE LEVEL OF BRANCH CHIEF OR ABOVE, OR OTHERWISE CHANGE ESTABLISHED PAST
PRACTICES AFFECTING THE WORKING CONDITIONS OF UNIT EMPLOYEES, WITHOUT
FIRST NOTIFYING THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU, CHAPTER
99, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF OUR EMPLOYEES, AND
AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER ON SUCH
MATTERS TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS.

WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.

(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, REGION II, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: ROME 241, 26 FEDERAL PLAZA, NEW, NY, 10007, AND WHOSE
TELEPHONE NUMBER IS: (212) 264-4934.

-------------------- ALJ DECISION FOLLOWS --------------------

ROBERT F. HERMANN, ESQUIRE
FOR THE RESPONDENT

JAMES E. PETRUCCI, ESQUIRE
RONI SCHNITZER, ESQUIRE
FOR THE GENERAL COUNSEL

PETER M. CONROY, ESQUIRE
FOR THE CHARGING PARTY

BEFORE: GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE

DECISION

STATEMENT OF THE CASE

THIS CASE AROSE AS A RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT
DATED JANUARY 31, 1980 FILED BY THE REGIONAL DIRECTOR, REGION 2, FEDERAL
LABOR RELATIONS AUTHORITY, NEW YORK, NEW YORK, AGAINST THE INTERNAL
REVENUE SERVICE AND BROOKHAVEN SERVICE CENTER (RESPONDENT).

THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED
SECTIONS 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED, (THE
ORDER) ON OR ABOUT OCTOBER 18, NOVEMBER 16 AND NOVEMBER 17, 1978, BY
REFUSING TO PERMIT MORE THAN ONE REPRESENTATIVE OF THE NATIONAL TREASURY
EMPLOYEES UNION (NTEU) AND NTEU, CHAPTER 99 (CHARGING PARTY OR UNION) TO
BE PRESENT AT FORMAL DISCUSSIONS WITHIN THE MEANING OF SECTION 10(E) OF
THE ORDER, AND AT INFORMAL MEETINGS WITH MANAGEMENT OFFICIALS AT THE
LEVEL OF BRANCH CHIEF OR ABOVE. THE COMPLAINT ALLEGED THAT SUCH CONDUCT
CONSTITUTED A UNILATERAL CHANGE IN EXISTING PRACTICES WITHOUT NOTICE TO
THE CHARGING PARTY. RESPONDENT DENIED THE ALLEGATIONS.

A HEARING WAS HELD IN THIS MATTER IN HOLTSVILLE, NEW YORK. THE
RESPONDENT, GENERAL COUNSEL AND CHARGING PARTY WERE REPRESENTED BY
COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT
EVIDENCE, EXAMINE AND CROSS-EXAMINE WITNESSES, AND FILE POST-HEARING
BRIEFS.

BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.

FINDINGS OF FACT

1. THE NATIONAL TREASURY EMPLOYEES UNION AND THE INTERNAL REVENUE
   SERVICE WERE, AT ALL RELEVANT TIMES, PARTIES TO A COLLECTIVE BARGAINING
   AGREEMENT COVERING A CONSOLIDATED BARGAINING UNIT WHICH INCLUDES
   EMPLOYEES OF THE BROOKHAVEN SERVICE CENTER. (JOINT EX. 1). THE
   BROOKHAVEN SERVICE CENTER IS HEADED BY A DIRECTOR, ASSISTED BY AN
   ASSISTANT DIRECTOR. OTHER MANAGEMENT REPRESENTATIVES, IN DESCENDING
   ORDER UNDER THE DIRECTOR, ARE DIVISION CHIEFS, BRANCH CHIEFS, SECTION
   CHIEFS, AND UNIT SUPERVISORS. (TR. 280).

2. THE MULTI-CENTER AGREEMENT (MCA), WHICH BECAME EFFECTIVE IN
   OCTOBER 1975, CONTAINS A NUMBER OF PROVISIONS RELEVANT TO THE
   UTILIZATION OF OFFICIAL TIME FOR REPRESENTATIONAL PURPOSES, THE RIGHT OF
   THE UNION TO BE PRESENT AT CERTAIN MEETING, AND THE NUMBER OF
   PARTICIPANTS WHO WILL RECEIVE NOTICE OF AND ATTEND CERTAIN MEETINGS WITH
   MANAGEMENT. SEE ARTICLES 3, 5, 30, 31, 32, 33, AND 36. (JOINT EX. 1).
   ARTICLE 36, "LABOR-MANAGEMENT RELATIONS COMMITTEE," AND ARTICLE 33,
   "GRIEVANCE PROCEDURE," OF THE MCA SPECIFY THE UNION'S RIGHT TO DESIGNATE
   MORE THAN ONE REPRESENTATIVE TO ATTEND CERTAIN MEETINGS WITH RESPONDENT
   ON OFFICIAL TIME, AND ARTICLE 32, SECTION I.D. ALLOWS AN EMPLOYEE, UPON
   REQUEST, TO BE ACCOMPANIED BY ONE UNION REPRESENTATIVE DURING
   DISCUSSIONS OF POTENTIAL ADVERSE ACTIONS WITH MANAGEMENT.

3. WITHIN SIX MONTHS OF KENNETH HART TAKING OFFICE AS PRESIDENT OF
   NTEU, CHAPTER 99 IN OCTOBER, 1975, MR. HART HAD A DISCUSSION WITH CALVIN
   LITWACK, CHIEF OF THE EMPLOYEE RELATIONS SECTION. MR. HART CLAIMED THAT
   THE FOLLOWING ARTICLE 3B OF THE MCA WOULD PERMIT AN AREA STEWARD, AS
   WELL AS THE CHIEF STEWARD OR CHAPTER PRESIDENT, TO ATTEND MEETINGS
   CALLED BY, OR HELD WITH, A BRANCH CHIEF OR ABOVE:

ARTICLE 3B

THE PARTIES AGREE THAT NOTICE TO THE UNION OF A FORMAL DISCUSSION
WILL BE SUFFICIENT IF

PROVIDED TO A STEWARD APPOINTED TO REPRESENT EMPLOYEE(S) INVOLVED IN
THE DISCUSSION; PROVIDED,

HOWEVER, THAT IF SUCH DISCUSSION IS CALLED BY A BRANCH CHIEF OR AN
OFFICIAL OF HIGHER RANK,

NOTICE OF THE DISCUSSION WILL BE PROVIDED TO THE CHIEF STEWARD OR
CHAPTER PRESIDENT.

MR. LITWACK DISAGREED AND POINTED TO ARTICLE 5, SECTION 2D, AS
FOLLOWS, WHICH HE CONTENDED, SET A LIMITATION OF ONE STEWARD TO ATTEND
SUCH A MEETING:

ARTICLE 5, SECTION 2D

A UNION STEWARD, CHIEF STEWARD OR CHAPTER PRESIDENT WILL RECEIVE
OFFICIAL TIME TO BE

PRESENT AT FORMAL OR INFORMAL DISCUSSIONS WITH THE EMPLOYER
CONCERNING PERSONNEL POLICIES,

PRACTICES AND MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT, OR TO

CARRY OUT THE GOALS AND OBJECTIVES OF EXECUTIVE ORDER 11491, AS
AMENDED . . .

(TR. 307-308, 335; JOINT EX. 1).

4. THIS TOPIC CAME UP SUBSEQUENTLY BETWEEN MR. LITWACK AND MR. HART
   AND BETWEEN MR. LITWACK AND ANNE TAMNEY, CHIEF STEWARD. (TR. 308). MR.
   LITWACK ALSO COMMUNICATED HIS VIEW TO JUDY OSLAGER, WHO SERVED AS VICE
   PRESIDENT AND CHIEF STEWARD FROM APPROXIMATELY JUNE 1977 TO JUNE 1978
   AND AS CHAPTER PRESIDENT SINCE JUNE 1, 1978. (TR. 88-89; 171).

5. VICTOR A. SMITH, CHIEF, PERSONNEL BRANCH, ALSO INTERPRETS THE MCA
   TO PROVIDE FOR ONE UNION REPRESENTATIVE TO ATTEND MEETINGS WITH
   MANAGEMENT, EXCEPT IN THE INSTANCES SPELLED OUT IN ARTICLE 33 AND 36.
   (TR. 296-297). HE HAS ADVISED THE UNION OF HIS INTERPRETATION OF THE
   CONTRACT (TR. 54, 171, 282), AND HAS DECLINED TO MEET WITH MULTIPLE
   UNION REPRESENTATIVES WHENEVER HE FELT, OR ASCERTAINED, THAT THE TOPIC
   TO BE DISCUSSED DID NOT REQUIRE THE ATTENDANCE OF MULTIPLE
   REPRESENTATIVES. (TR. 282-284, 300, 302, 304-305). HE DEALT WITH THE
   ISSUE ON A CASE-BY-CASE BASIS. DURING HIS MEETINGS OVER THE YEARS HE
   HAS ACTUALLY MET ON MORE OCCASIONS WITH MORE THAN ONE UNION
   REPRESENTATIVE, AFTER DECIDING, OR ASCERTAINING, THAT ADDITIONAL UNION
   REPRESENTATION WOULD HELP RESOLVE A PROBLEM. HIS DECISION TO ALLOW MORE
   THAN ONE UNION REPRESENTATIVE WAS DISCUSSED ON OCCASION, ONCE OR TWICE,
   BUT NOT IN EVERY INSTANCE. (TR. 300-305).

6. SMITH HAS ADVISED MANAGERS OF HIS INTERPRETATION OF THE CONTRACT,
   AND THAT IT WAS IN MANAGER'S DISCRETION WHETHER OR NOT TO ALLOW MORE
   THAN ONE UNION REPRESENTATIVE TO BE PRESENT. SMITH'S ADVICE IS
   ADVISORY. HE DOES NOT HAVE LINE AUTHORITY OVER THE MANAGERS. (TR.
   296-297). IF HIS SECTION BELIEVES THAT A VIOLATION OF LAW OR REGULATION
   IS OCCURRING, IT WOULD BE NECESSARY TO GO THROUGH THE CHAIN OF COMMAND
   TO HAVE IT STRAIGHTENED OUT. (TR. 296-297). SMITH ACKNOWLEDGED THAT HE
   WAS A "STRICT CONSTRUCTIONALIST" AND A "HARD LINER" WHEN IT CAME TO
   CONSTRUING THE CONTRACT AS TO THE NUMBER OF UNION REPRESENTATIVES HE
   WOULD SEE AT MEETINGS; THAT MOST OF THE OTHER MANAGERS WERE NOT; AND
   THAT, IN MANY INSTANCES, THERE WERE MANAGERS WHO ALLOWED MORE THAN ONE
   UNION REPRESENTATIVE TO ATTEND MEETINGS. (TR. 282, 299).

7. HENRY P. SEUFERT WAS DIRECTOR OF THE BROOKHAVEN SERVICE CENTER
   FROM AUGUST 5, 1973 TO NOVEMBER 4, 1977. HE MET ON NUMEROUS OCCASIONS
   WITH UNION REPRESENTATIVES TO DISCUSS LABOR RELATIONS. HE NEVER RAISED
   A QUESTION CONCERNING HOW MANY UNION REPRESENTATIVES COULD BE PRESENT
   FOR SUCH MEETINGS, NOR DID THE UNION. THE QUESTION OF WHOSE DECISION IT
   WAS, OR WHETHER THE UNION HAD TO REQUEST PERMISSION TO BRING MORE THAN
   ONE REPRESENTATIVE WAS NEVER RAISED. HE TESTIFIED, "WHOEVER THEY
   BROUGHT IS WHOEVER I MET WITH." MR. SEUFERT ALSO DID NOT KNOW OF ANY
   RESTRICTION PLACED BY HIS SUBORDINATES ON HOW MANY PERSONS THE UNION
   COULD BRING, OR NOT BRING, TO A MEETING. (TR. 30-33).

8. KENNETH HART SERVED AS CHAPTER PRESIDENT OF THE UNION AT THE
   SERVICE CENTER FROM OCTOBER 1975 TO JUNE 1978. DURING THIS PERIOD HART
   INSTRUCTED THE STEWARDS THAT THEY SHOULD NOT MEET WITH A BRANCH CHIEF,
   OR ANOTHER MANAGEMENT REPRESENTATIVE OF HIGHER RANK ALONE, BUT SHOULD BE
   ACCOMPANIED AT SUCH MEETINGS BY A UNION OFFICIAL, OR ANOTHER STEWARD.
   JUDY OSLAGER, WHO SUCCEEDED MR. HART AS CHAPTER PRESIDENT, CONTINUED
   THIS POLICY AND PRACTICE. BOTH TESTIFIED THAT, IN SUCH CAPACITY, THEY
   DID, ON OCCASION, MEET WITH SUCH OFFICIALS ALONE, BUT IT WAS THE UNION'S
   DECISION WHETHER OR NOT TO DO SO. (TR. 36-38; 90, 92, 106).
   OTHERWISE, THEY ADHERED TO THE POLICY AND PRACTICE AND, PRIOR TO OCTOBER
   18, 1978, THE RECORD SHOWS THAT NO SPECIFIC SECTION CHIEF, EXCEPT FOR
   MR. SMITH, REFUSED TO MEET WITH MORE THAN ONE UNION REPRESENTATIVE AT
   THE MEETINGS IN ISSUE. /2/

9. IN 1977 THE UNION SUBMITTED THE TOPIC OF "LIMIT ON UNION
   PERSONNEL AT INFORMATION SHARING MEETINGS" AS AN AGENDA ITEM FOR A LABOR
   MANAGEMENT RELATIONS COMMITTEE MEETING, BECAUSE A QUESTION HAD BEEN
   RAISED ABOUT THE ATTENDANCE OF A STEWARD AT A MEETING, AND THE UNION
   WANTED TO CLARIFY ITS POLICY. (TR. 71-72; 286; RESPONDENT'S EX. 5.)
   THE ITEM WAS DISCUSSED AT THE JUNE 30, 1977 MEETING. (TR. 72, 285).
   THE RECORD DOES NOT REFLECT THE SUBSTANCE OF THE DISCUSSION; HOWEVER,
   THE MINUTES PREPARED BY MANAGEMENT STATED:

MANAGEMENT ASKED NTEU TO TAKE A HARD LOOK AT THEIR USE OF
ADMINISTRATIVE TIME AND REGULATE

IT TO THE BEST OF ITS ABILITY. (FREQUENTLY, MORE REPRESENTATIVES
THAN ARE NEEDED ATTEND

INFORMATION MEETINGS.) FURTHER, MANAGEMENT STATED THAT IF THERE IS
DISAGREEMENT ON HOW MANY

WILL ATTEND INFORMATION SHARING MEETINGS (RESULTING FROM CHANGE IN
PERSONNEL POLICIES,

PRACTICES, PROCEDURES) THE MATTER TO BE DISCUSSED CAN BE BROUGHT UP
AT LMRC MEETINGS AS AN

AGENDA ITEM.

10. AT OTHER TIMES IN 1977 AND 1978 RESPONDENT ADVISED THE UNION
    THAT EMPLOYEE USE OF OFFICIAL TIME MUST BE REASONABLE AND ACCOUNTED FOR
    UNDER THE CONTRACT. (RESPONDENT'S EX. 3, 6, 8, AND 10; TR. 292).

11. UPON ASSUMING THE POSITION OF CHAPTER PRESIDENT ON JUNE 2, 1978,
    MS. OSLAGER MET WITH THEN DIRECTOR THOMAS LAYCOCK ON JUNE 2, 1978. MS.
    OSLAGER WAS ACCOMPANIED BY JOAN SHERIDAN, VICE PRESIDENT AND CHIEF
    STEWARD OF THE UNION. (TR. 91, 251). MR. LAYCOCK STATED THAT THE
    CONTRACT WOULD BE HIS GUIDE AND RULE HIS ACTIONS; THAT, AS NEW UNION
    REPRESENTATIVES, THEY WOULD GET NOTHING WHICH WAS NOT SPELLED OUT IN THE
    CONTRACT. (TR. 92, 251). NOTWITHSTANDING THE FOREGOING, IN THE PERIOD
    PRIOR TO OCTOBER 18, 1978, MS. OSLAGER WAS NEVER DENIED THE RIGHT TO
    HAVE MORE THAN ONE UNION REPRESENTATIVE PRESENT AT MEETINGS WITH BRANCH
    CHIEFS OR ABOVE. (TR. 93).

12. IN OCTOBER 1978 DIRECTOR LAYCOCK LEARNED THAT SEVERAL BARGAINING
    UNIT EMPLOYEES WERE DISSATISFIED WITH AN ARTICLE WHICH HAD APPEARED IN
    THE UNION NEWSPAPER, AND WISHED TO SPEAK TO HIM CONCERNING THE
    PUBLICATION OF A REBUTTAL IN THE SERVICE CENTER NEWSPAPER. LAYCOCK
    SOUGHT ADVICE FROM THE CENTER'S LABOR RELATIONS SECTION. (TR. 239-240).
    SECTION CHIEF LITWACK ADVISED HIM THAT IT WOULD BE IMPROPER FOR THE
    CENTER TO PUBLISH THE REBUTTAL, AND IF LAYCOCK WERE TO MEET WITH THE
    EMPLOYEES, THE MEETING WOULD LIKELY CONSTITUTE A FORMAL DISCUSSION UNDER
    SECTION 10(E) OF EXECUTIVE ORDER 11491. LITWACK FURTHER ADVISED THAT,
    UNDER THE EXECUTIVE ORDER AND THE MCA, ONE UNION REPRESENTATIVE SHOULD
    BE INVITED TO ATTEND ANY SUCH MEETING. (TR. 320-321).

13. LAYCOCK TOOK LITWACK'S ADVICE. (TR. 241). HE ADVISED THE
    EMPLOYEES IT WOULD NOT BE POSSIBLE TO PUBLISH THEIR REBUTTAL, BUT
    OFFERED TO MEET WITH THEM. (TR. 240). WHEN THE EMPLOYEES REQUESTED
    SUCH A MEETING, LAYCOCK NOTIFIED UNION CHAPTER PRESIDENT OSLAGER AND
    INVITED HER TO ATTEND THE MEETING, WHICH WAS SCHEDULED FOR OCTOBER 18,

14. (TR. 94).

15. OSLAGER ARRIVED FOR THE MEETING ACCOMPANIED BY CHAPTER
    VICE-PRESIDENT AND CHIEF STEWARD JOAN SHERIDAN. (TR. 94). LAYCOCK,
    BASED ON THE INTERPRETATION OF THE MCA FURNISHED HIM BY LITWACK,
    OBJECTED TO BOTH OSLAGER AND SHERIDAN BEING PRESENT. (TR. 241-242).
    LAYCOCK WAS NOT AWARE OF WHAT THE PRACTICE WAS, OR WHETHER THIS WAS A
    CHANGE OR NOT. (TR. 244). WHEN LAYCOCK RAISED THE OBJECTION, OSLAGER
    DID NOT VOICE DISAGREEMENT; SHE DID NOT ASSERT A RIGHT TO HAVE A SECOND
    UNION REPRESENTATIVE PRESENT. (TR. 158; 242). RATHER, OSLAGER ADVISED
    SHERIDAN TO LEAVE AND PROCEEDED TO ATTEND THE MEETING HERSELF. (TR.
    206). NO GRIEVANCE WAS FILED AND NO BARGAINING DEMAND WAS EVER MADE.
    (TR. 158). IN ADDITION TO LAYCOCK AND OSLAGER, THREE BARGAINING UNIT
    EMPLOYEES ATTENDED THE MEETING. (TR. 242). AT THE MEETING, THE THREE
    EMPLOYEES VOICED THEIR DISSATISFACTION WITH THE UNION'S HANDLING OF A
    GRIEVANCE. (TR. 242-243).

16. ON NOVEMBER 16, 1978 OSLAGER SOUGHT AN INFORMAL MEETING WITH
    DIRECTOR LAYCOCK ON SOME SUBJECT. SHERIDAN ACCOMPANIED OSLAGER TO
    LAYCOCK'S OFFICE. LAYCOCK DECLINED TO MEET WITH BOTH OSLAGER AND
    SHERIDAN. (TR. 95, 207). OSLAGER VOICED NO OBJECTION, SHERIDAN LEFT,
    AND OSLAGER PROCEEDED TO MEET WITH LAYCOCK. (TR. 94-96). OSLAGER WAS
    UNABLE TO RECALL THE SUBJECT WHICH SHE SOUGHT TO DISCUSS WITH LAYCOCK.
    (TR. 96). LAYCOCK HAS NO RECOLLECTION OF ANY NOVEMBER 16, 1978 MEETING
    WITH OSLAGER. (TR. 244).

17. ON NOVEMBER 17, 1978, OSLAGER WAS INVITED TO MEET WITH ASSISTANT
    DIRECTOR CHARLES COPELAND CONCERNING THE COMBINED FEDERAL CAMPAIGN.
    OSLAGER ARRIVED AT COPELAND'S OFFICE ACCOMPANIED BY SHERIDAN. (TR. 96).
    COPELAND ADVISED OSLAGER AND SHERIDAN THAT HE WOULD MEET WITH ONLY ONE
    OF THEM AT THAT TYPE OF MEETING. NEITHER OSLAGER NOR SHERIDAN RAISED
    ANY OBJECTION. (TR. 96, 178, 207). SHERIDAN LEFT, AND OSLAGER
    PROCEEDED TO MEET WITH COPELAND. COPELAND ASKED OSLAGER IF THE UNION
    WOULD APPOINT A CO-CHAIRPERSON AND SUPPORT THE COMBINED FEDERAL
    CAMPAIGN, AS IT HAD IN THE PAST. (TR. 176). OSLAGER SUBSEQUENTLY
    NOTIFIED COPELAND THAT THE UNION WOULD DO SO AND PROVIDED HIM THE NAME
    OF THE UNION CO-CHAIRPERSON. (TR. 179).

18. OVER THE PERIOD FROM 1975 THROUGH NOVEMBER, 1978, AND CONTINUING
    UP TO THE DATE OF THE HEARING, THERE WERE INNUMERABLE FORMAL AND
    INFORMAL MEETINGS OF ALL KINDS AT ALL LEVELS BETWEEN REPRESENTATIVES OF
    SERVICE CENTER MANAGEMENT AND REPRESENTATIVES OF THE UNION. THE NUMBER
    OF PARTICIPANTS OR ATTENDEES AT THESE MEETINGS VARIED. MANY INVOLVED A
    SINGLE MANAGEMENT OFFICIAL AND A SINGLE UNION REPRESENTATIVE. OTHERS
    INVOLVED A SINGLE MANAGEMENT OFFICIAL AND TWO OR MORE UNION
    REPRESENTATIVES, OR VICE VERSA. STILL OTHER MEETINGS INVOLVED TWO OR
    MORE MANAGEMENT OFFICIAL AND TWO OR MORE UNION UNION REPRESENTATIVES.
    THERE WERE MORE MEETINGS WITH MANAGEMENT OFFICIALS AT THE LEVEL OF
    BRANCH CHIEF OR ABOVE AT WHICH MORE THAN ONE UNION REPRESENTATIVE WAS
    PRESENT, WITHOUT ANY OBJECTION BEING VOICED, THAN THERE WERE WITH ONLY
    ONE UNION REPRESENTATIVE. (TR. 32, 37-38, 44-46, 54-55, 106, 154,
    174-175, 191-196, 204-206, 218-219, 274, 284, 302; GENERAL COUNSEL'S
    EX. 3).

19. SINCE NOVEMBER 1978 THE DIRECTOR OF THE SERVICE CENTER HAS MET
    ON SOME OCCASIONS WITH ONE UNION REPRESENTATIVE AND ON OTHER OCCASIONS
    WITH MORE THAN ONE UNION REPRESENTATIVE. DIRECTOR LAYCOCK HAS STATED TO
    THE UNION REPRESENTATIVES ON ONE OR MORE OCCASIONS DURING THIS PERIOD
    THAT HE WOULD MEET WITH ONLY ONE UNION REPRESENTATIVE UNDER THE CONTRACT
    UNLESS THERE IS A GOOD AND SUFFICIENT REASON TO SHOW THAT ADDITIONAL
    UNION REPRESENTATIVES WOULD MAKE A CONTRIBUTION TO THE MEETING. THE
    DIRECTOR CLAIMED HE HAS BEEN CONSISTENT IN APPLYING THIS POLICY SINCE
    THE OCTOBER 18, 1978 MEETING. (TR. 253-254). BOTH HE AND MR. COPELAND
    HAVE, HOWEVER, MET WITH MORE THAN ONE UNION REPRESENTATIVE SINCE
    NOVEMBER 1978 AND HAVE VOICED NO OBJECTION TO THE UNION CONCERNING THE
    REPRESENTATIVES BEING PRESENT. (TR. 193).

20. DURING ONGOING NEGOTIATIONS FOR A SUCCESSOR TO THE MCA, THE
    UNION SUBMITTED PROPOSED CHANGES IN ARTICLE 5, SECTION 2 ON MAY 17,

21. THE UNION'S PROPOSED AMENDMENTS PROVIDED, AMONG OTHER THINGS, "A
    UNION STEWARD, CHIEF STEWARD AND CHAPTER PRESIDENT WILL RECEIVE OFFICIAL
    TIME TO BE PRESENT AT FORMAL OR INFORMAL DISCUSSIONS WITH THE EMPLOYER .
    . . ", AND "THE CHIEF STEWARD AND CHAPTER PRESIDENT WILL RECEIVE
    ADMINISTRATIVE TIME TO BE PRESENT AT FORMAL AND INFORMAL MEETINGS
    NECESSARY TO CARRY OUT THE GOALS OF EXECUTIVE ORDER 11491, AS AMENDED."
    (RESPONDENT'S EX. 11, EMPHASIS ADDED). THE UNION SUBSEQUENTLY WITHDREW
    THE PROPOSAL. (TR. 198).

PROCEDURAL FACTS

20. IN JANUARY 25, 1979, THE UNION CHARGED THE SERVICE CENTER WITH A
    VIOLATION OF SECTION 19(A)(1) AND (6) OF THE EXECUTIVE ORDER. (GENERAL
    COUNSEL'S EX. 1(R)). THE CHARGE ALLEGED THAT THE SERVICE CENTER
    UNILATERALLY CHANGED PERSONNEL POLICIES AND PRACTICES WHEN, "IN MEETINGS
    ON OCTOBER 18, 1978, NOVEMBER 16, 1978, AND NOVEMBER 17, 1978 YOU
    GRANTED OFFICIAL TIME TO ONLY ONE UNION OFFICIAL. THE PARTIES MET ON
    FEBRUARY 12, 1979 TO ATTEMPT TO INFORMALLY RESOLVE THE CHARGE. (TR.
    110).

21. ON APRIL 24, 1979, THE UNION FILED AN UNDATED FORMAL CHARGE WITH
    REGION II OF THE AUTHORITY. (GENERAL COUNSEL EX. 1(A)). THE CHARGE
    REPEATED THE ALLEGATIONS RAISED IN THE INFORMAL CHARGE, BUT DELETED ANY
    ALLEGATION CONCERNING A CLAIMED NOVEMBER 16, 1978 MEETING. ON MAY 25,
    1979, THE UNION FILED AN AMENDED CHARGE, DATED MAY 23, 1979. (GENERAL
    COUNSEL EX. 1(C)). AND, ON JANUARY 15, 1980, THE UNION FILED A SECOND
    AMENDED CHARGE, DATED JANUARY 9, 1980. (GENERAL COUNSEL EX. 1(E)).
    NEITHER OF THE AMENDED CHARGES RAISED AN ALLEGATION CONCERNING A
    NOVEMBER 16, 1978 MEETING.

22. ON JANUARY 31, 1980, THE REGIONAL DIRECTOR, REGION II, ISSUED A
    COMPLAINT ALLEGING VIOLATIONS OF SECTION 19(A)(1) AND (6) OF THE
    EXECUTIVE ORDER ARISING OUT OF ALLEGED ACTIONS TAKEN ON OCTOBER 18,
    1978, NOVEMBER 16, 1978 AND NOVEMBER 17, 1978. (GENERAL COUNSEL EX.
    1(G)). RESPONDENTS ANSWERED THE COMPLAINT, MOVING FOR ITS DISMISSAL ON
    VARIOUS GROUNDS. (GENERAL COUNSEL EX. 1(I), 1(J), 1(T)).

DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS

AUTHORITY OF GENERAL COUNSEL

RESPONDENT CONTENDS THAT THE REGIONAL DIRECTOR WAS WITHOUT AUTHORITY
TO ISSUE THE COMPLAINT, AND THE GENERAL COUNSEL WAS WITHOUT AUTHORITY TO
PROSECUTE THE COMPLAINT. RESPONDENT ALLEGES THAT THE CASE IS GOVERNED
SUBSTANTIVELY AND PROCEDURALLY BY EXECUTIVE ORDER 11491, AS AMENDED, AND
THE ASSISTANT SECRETARY'S REGULATION ISSUED THEREUNDER. SEE 4 FED.REG.
5(1979). THE AUTHORITY HAS CONCLUDED THAT IT DOES HAVE THE POWER TO
PROCESS, THROUGH THE MEDIUM OF THE GENERAL COUNSEL, EXECUTIVE ORDER
CASES FILED AFTER JANUARY 11, 1979. SEE 44 FED.REG. 14634(1979); 44
FED.REG. 44740(1979); 5 C.F.R. 2423.1(1980). I AM BOUND BY THE RULES
AND REGULATIONS OF THE AUTHORITY. SEE 5 C.F.R. 2423.19(1980) AND
NATIONAL LABOR RELATIONS BOARD, REGION I, BOSTON MASSACHUSETTS AND
RONALD LASKY, CASE NO. 1-CA-28, DECISION OF ADMINISTRATIVE LAW JUDGE
BURTON S. STERNBURG (MAY 14, 1980).

THE NOVEMBER 16, 1978 MEETING

RESPONDENT ALSO CONTENDS THAT ALLEGATIONS ARISING OUT OF A CLAIMED
NOVEMBER 16, 1978 MEETING ARE NOT PROPERLY PART OF THE COMPLAINT OR THE
PROCEEDINGS, BECAUSE THE UNION DID NOT RAISE ANY ALLEGATION CONCERNING
SUCH A MEETING IN THE APRIL 24, 1979 CHARGE WHICH IT FILED WITH THE
AUTHORITY. THIS CONTENTION IS WITHOUT MERIT. ON JANUARY 25, 1979,
SUBSEQUENT TO THE ISSUANCE OF THE TRANSITION RULES AND REGULATIONS OF
THE AUTHORITY, 44 FED.REG. 5(1979), BUT PRIOR TO THE POLICY STATEMENT
OF MARCH 7, 1979, 44 FED.REG. 14634(1979), THE UNION FILED A CHARGE WITH
RESPONDENT. THIS CHARGE CLEARLY ALLEGED THAT ON NOVEMBER 16, 1978, AND
ON TWO OTHER DATES, RESPONDENT REFUSED TO MEET WITH MORE THAN ONE UNION
REPRESENTATIVE. THIS DOCUMENT, FILED PURSUANT TO THE THEN-EXISTING
REQUIREMENTS OF THE AUTHORITY, PUT RESPONDENT ON FULL NOTICE THAT
UNLAWFUL CONDUCT WAS ALLEGED TO HAVE OCCURRED ON THAT DATE. ALTHOUGH
THIS DATE WAS NOT AGAIN ALLEGED IN THE UNION'S APRIL 24, 1979 CHARGE
FILED WITH THE AUTHORITY, THIS IS NOT FATAL, AS THE GENERAL COUNSEL'S
COMPLAINT OF JANUARY 31, 1980 SPECIFIED THE NOVEMBER 16, 1978 DATE, AS
WELL AS THE EARLIER DATE OF OCTOBER 18, 1978 AND THE LATER DATE OF
NOVEMBER 17, 1978 AS DATES "ON OR ABOUT" WHICH RESPONDENT UNILATERALLY
CHANGED EXISTING PRACTICES. IT IS THE GENERAL COUNSEL'S COMPLAINT,
FOLLOWING THE GENERAL COUNSEL'S INVESTIGATION OF THE CHARGES, WHICH
ESTABLISHED THE ISSUES FOR THE HEARING UNDER THE AUTHORITY'S
REGULATIONS. THUS, ALLEGATIONS AND EVIDENCE CONCERNING THE NOVEMBER 16,
1978 MEETING WERE NOT BEYOND THE PROPER SCOPE OF THE COMPLAINT, OR OF
THE HEARING.

THE OCTOBER 18, 1978 MEETING

RESPONDENT FURTHER CONTENDS THAT CONSIDERATION OF THE OCTOBER 18,
1978 MEETING IS TIME BARRED UNDER THE STATUTE, BECAUSE IT OCCURRED MORE
THAN SIX MONTHS PRIOR TO THE APRIL 24, 1979 DATE ON WHICH A FORMAL
CHARGE WAS FILED WITH THE AUTHORITY. 5 U.S.C. 7118(A)(4)(A).
RESPONDENT ARGUES THAT "IF THE EXECUTIVE ORDER RULES AND REGULATIONS ARE
TO BE DISREGARDED FOR SOME PURPOSES, THEY MUST BE DISREGARDED FOR ALL
PURPOSES."

THE UNION, ACTING PURSUANT TO THE REQUIREMENTS SET FORTH IN THE
TRANSITION RULES AND REGULATIONS, 44 FED.REG. 5(1979), WHICH ADOPTED THE
RULES AND REGULATIONS OF THE ASSISTANT SECRETARY, 29 C.F.R. PART 203,
PROPERLY FILED A PRECOMPLAINT CHARGE WITH THE RESPONDENT ON JANUARY 25,
1979. THE TRANSITION RULES AND REGULATIONS ADOPTED THE THEN EXISTING
RULES AND REGULATIONS OF THE ASSISTANT SECRETARY WITH RESPECT TO THE
TIME LIMITS FOR FILING UNFAIR LABOR PRACTICE CHARGES AND COMPLAINTS
UNDER EXECUTIVE ORDER 11491, AS AMENDED. THE ASSISTANT SECRETARY'S
RULES AND REGULATIONS PROVIDED THAT CHARGES OF UNFAIR LABOR PRACTICES
WERE TO BE FILED WITH A RESPONDENT WITHIN SIX MONTHS OF THE OCCURRENCE.
FAILING RESOLUTION, COMPLAINTS WERE TO BE FILED WITHIN SIXTY DAYS OF
RESPONDENT'S WRITTEN FINAL DECISION. IN NO EVENT WERE COMPLAINTS
ACTIONABLE IF FILED OVER NINE MONTHS AFTER THE OCCURRENCE OF THE ALLEGED
UNFAIR LABOR PRACTICE.

THE PARTIES MET ON FEBRUARY 12, 1979. THE RECORD DOES NOT CONTAIN A
WRITTEN FINAL DECISION OF RESPONDENT. ON MARCH 7, 1979, THE AUTHORITY
ISSUED A NOTICE WHEREIN IT DID AWAY WITH THE PRACTICE OF REQUIRING THE
FILING OF A CHARGE WITH RESPONDENT PRIOR TO THE FILING OF A FORMAL
CHARGE OR COMPLAINT WITH THE AUTHORITY. THE NOTICE, HOWEVER, WAS SILENT
WITH RESPECT TO THE NINE MONTH PERIOD ALLOWED FOR THE PERFECTION OF A
COMPLAINT UNDER THE EXECUTIVE ORDER. 44 FED.REG. 14634(1979). THE
UNION THEN FILED ITS FORMAL CHARGE WITH THE AUTHORITY ON APRIL 24, 1979.
INASMUCH, AS UNION'S FORMAL CHARGE WAS FILED WITHIN NINE MONTHS OF THE
OCCURRENCE, AND NO FINAL WRITTEN DECISION OF THE RESPONDENT APPEARS IN
THE RECORD WHICH WOULD HAVE TRIGGERED AN EARLIER FILING DATE, I FIND
THAT THE CHARGE CONCERNING THE OCTOBER 18, 1978 MEETING WAS TIMELY FILED
UNDER THE APPLICABLE REGULATIONS. NATIONAL LABOR RELATIONS BOARD,
REGION I, BOSTON, MASSACHUSETTS, SUPRA.

QUESTION OF DEFERRAL TO PARTIES' CONTRACTUAL GRIEVANCE-ARBITRATION
PROCEDURE

RESPONDENT CONTENDS THAT THIS CASE CONCERNS ITS ALLEGED REFUSAL TO
PERMIT MULTIPLE UNION REPRESENTATIVES TO ATTEND CERTAIN MEETINGS ON
OFFICIAL TIME, AND AS THE RIGHT TO OFFICIAL TIME CAN ARISE ONLY PURSUANT
TO A NEGOTIATED AGREEMENT, THE MATTER IS NOT APPROPRIATELY RAISED AS AN
UNFAIR LABOR PRACTICE, BUT SHOULD BE DEFERRED TO THE CONTRACTUAL
GRIEVANCE-ARBITRATION MACHINERY.

IF THIS CASE INVOLVED ESSENTIALLY AN INTERPRETATION OF THE NEGOTIATED
AGREEMENT IN RELATION TO OFFICIAL TIME, RESPONDENT WOULD BE CORRECT.
SEE DEPARTMENT OF THE AIR FORCE, BASE PROCUREMENT OFFICE, VANDENBURG AIR
FORCE BASE, CALIFORNIA, FLRC NO. 75A-25, 4 FLRC 587(1976); DEPARTMENT
OF THE NAVY, NAVAL WEAPONS STATION, CONCORD, CALIFORNIA, A/SLMR NO.
1115, 8 A/SLMR 996(1978); INTERNAL REVENUE SERVICE, BURMINGHAM DISTRICT
AND NATIONAL TREASURY EMPLOYEES UNION, LOCAL CHAPTER 12 (ARBITRATOR
DROTNING, JUNE 8, 1978). BUT WHILE THE UNION'S ORIGINAL AND AMENDED
CHARGES OF JANUARY 25, 1979, APRIL 24, 1979, MAY 25, 1979, AND JANUARY
1, 1980 ALL ALLEGED THAT WHAT CONSTITUTED THE UNILATERAL CHANGE OF
PRACTICES ON CERTAIN DATES WAS RESPONDENT'S GRANTING "OFFICIAL TIME TO
ONLY ONE UNION OFFICIAL," THE GENERAL COUNSEL'S COMPLAINT, ISSUED AFTER
INVESTIGATION OF THE CHARGE, DID NOT MENTION OFFICIAL TIME. RATHER, THE
GENERAL COUNSEL ALLEGED THAT WHAT CONSTITUTED THE UNILATERAL CHANGE IN
EXISTING PRACTICES ON THESE DATES WAS RESPONDENT'S REFUSAL "TO PERMIT
MORE THAN ONE REPRESENTATIVE OF THE CHARGING PARTY TO BE PRESENT AT
FORMAL DISCUSSIONS . . . AND AT INFORMAL MEETINGS . . ." (GENERAL
COUNSEL'S EX. 1(R), 1(A), 1(C), 1(E), AND 1(G).

THE DETERMINATION OF WHETHER THERE WAS SUCH A UNILATERAL CHANGE OF
PAST PRACTICES IN THIS REGARD DOES NOT REQUIRE AN INTERPRETATION OF THE
PARTIES' NEGOTIATED AGREEMENT IN RELATION TO OFFICIAL TIME, COMPARE
DEPARTMENT OF THE NAVY, NAVAL WEAPONS STATION, CONCORD, CALIFORNIA,
A/SLMR NO. 1115, 8 A/SLMR 996(1978), OR A DETERMINATION OF HOW SUCH
REPRESENTATIVES PROPERLY ACCOUNT FOR THEIR TIME AT SUCH MEETINGS,
WHETHER BY OFFICIAL TIME, ANNUAL LEAVE, OR ADMINISTRATIVE LEAVE.
RATHER, THE INITIAL ISSUE INVOLVES A DETERMINATION OF WHAT THE PRACTICE
WAS WITH REGARD TO THE NUMBER OF UNION REPRESENTATIVES WHO MAY BE
PRESENT AT MEETINGS WITH MANAGERS AT THE LEVEL OF BRANCH CHIEF OR ABOVE.
THE AGREEMENT BETWEEN THE PARTIES DOES NOT SPECIFICALLY ADDRESS THE
ISSUE OF THE NUMBER OF UNION REPRESENTATIVES WHO MAY BE PRESENT, APART
FROM MEETINGS CONCERNING GRIEVANCES, THE LABOR-MANAGEMENT RELATIONS
COMMITTEE, AND POTENTIAL ADVERSE ACTIONS, WHICH ARE NOT IN ISSUE HERE.
THUS, THE ALLEGED UNILATERAL INTERPRETATIONS OF THE AGREEMENT, BUT
BARGAINING RIGHTS UNDER THE ORDER WHICH ARE PROPERLY DETERMINED IN AN
UNFAIR LABOR PRACTICE PROCEEDING. CF. DEPARTMENT OF THE NAVY, NAVAL AIR
REWORK FACILITY, ALAMEDA, CALIFORNIA, A/SLMR NO. 1089, 8 A/SLMR 814 AT
816-817(1978).

IT IS WELL ESTABLISHED THAT PARTIES MAY ESTABLISH TERMS AND
CONDITIONS OF EMPLOYMENT BY PRACTICE, OR OTHER FORM OF TACIT OR INFORMAL
AGREEMENT, AND THAT THIS, LIKE OTHER ESTABLISHED TERMS AND CONDITIONS OF
EMPLOYMENT MAY NOT BE ALTERED BY EITHER PARTY IN THE ABSENCE OF
AGREEMENT OR IMPASSE FOLLOWING GOOD FAITH BARGAINING. DEPARTMENT OF THE
NAVY, NAVAL UNDERWATER SYSTEMS CENTER, NEWPORT NAVAL BASE, 3 FLRA NO.
64(1980). PAST PRACTICES GENERALLY INCLUDE ALL CONDITIONS OF EMPLOYMENT
NOT SPECIFICALLY COVERED IN THE PARTIES' COLLECTIVE BARGAINING
AGREEMENT, WHICH ARE FOLLOWED BY BOTH PARTIES, OR FOLLOWED BY ONE PARTY
AND NOT CHALLENGED BY THE OTHER PARTY OVER A PERIOD OF TIME. PAST
PRACTICES MAY ALSO INCLUDE THE ACTUAL PRACTICE BEING FOLLOWED,
REGARDLESS OF THE CONTRACTUAL AGREEMENT.

PAST PRACTICE ISSUES

THE PRINCIPLE ISSUES ON THE MERITS ARE WHETHER A PAST PRACTICE
EXISTED WHEREBY THE UNION COULD, AT ITS ELECTION, HAVE MORE THAN ONE
REPRESENTATIVE PRESENT AT MEETINGS WITH BRANCH CHIEFS AND ABOVE, AND IF
SO, WHETHER THE RESPONDENT UNILATERALLY TERMINATED THE PAST PRACTICE
WITHOUT PROVIDING THE UNION AN OPPORTUNITY TO BARGAIN CONCERNING WHETHER
OR NOT THE PRACTICE SHOULD BE DISCONTINUED. IN ORDER TO CONSTITUTE THE
ESTABLISHMENT BY PRACTICE OF A TERM AND CONDITION OF EMPLOYMENT THE
PRACTICE MUST BE CONSISTENTLY EXERCISED FOR AN EXTENDED PERIOD OF TIME
WITH RESPONDENT'S KNOWLEDGE AND CONSENT. CF. DEPARTMENT OF THE NAVY,
NAVAL UNDERWATER SYSTEMS CENTER, NEWPORT NAVAL BASE, 3 FLRA NO.
64(1980).

THE RECORD REFLECTS THAT OVER A PERIOD FROM 1975 TO OCTOBER 1978
MANAGEMENT AT THE LEVEL OF BRANCH CHIEF OR ABOVE MET, ON THE MAJORITY OF
OCCASIONS, WITH MORE THAN ONE UNION REPRESENTATIVE WITHOUT OBJECTION AND
WITHOUT REQUIRING THE UNION TO SHOW TO ITS SATISFACTION GOOD AND
SUFFICIENT REASON WHY MORE THAN ONE REPRESENTATIVE WAS NECESSARY. THESE
MEETINGS WERE OF SUCH SUFFICIENT NUMBERS AND OVER SUCH A LONG DURATION
THAT A REASONABLE PERSON WOULD HAVE RECOGNIZED THIS PRACTICE AND WOULD
HAVE EXPECTED IT TO CONTINUE IN THE FUTURE. THERE WERE ALSO MEETINGS
DURING THIS PERIOD INVOLVING ONE UNION REPRESENTATIVE AND ONE OR MORE
MANAGEMENT OFFICIALS, AND AT LEAST ONE BRANCH CHIEF, VICTOR A. SMITH,
DECLINED, ON SOME OCCASIONS, TO MEET WITH MULTIPLE UNION
REPRESENTATIVES. HOWEVER, THE NUMBER OF THESE INCIDENTS, IN COMPARISON
TO THE LARGE NUMBER OF OTHER MEETINGS INVOLVING MORE THAN ONE UNION
REPRESENTATIVE, WOULD BE VIEWED BY A REASONABLE PERSON AS ONE-TIME
AFFAIRS. SMITH ACKNOWLEDGED THAT HE DEALT WITH THE ISSUE ON A
CASE-BY-CASE BASIS AND DID NOT DISCUSS HIS DECISION TO ALLOW MORE THAN
ONE UNION REPRESENTATIVE ON EVERY SUCH OCCASION.

RESPONDENT'S KNOWLEDGE AND CONSENT TO THE PRACTICE IS ALSO SHOWN IN
THE RECORD. FIRST ARE NUMEROUS INSTANCES OF BRANCH CHIEFS AND ABOVE
MEETING WITH MORE THAN ONE UNION REPRESENTATIVE WITHOUT OBJECTION.
FORMER DIRECTOR SEUFERT TESTIFIED THAT "WHOEVER THEY BROUGHT IS WHOEVER
I MET WITH"; THAT THE QUESTION OF WHETHER THEY HAD TO REQUEST
PERMISSION TO BRING MORE THAN ONE WAS NEVER RAISED; AND THAT HE KNEW OF
NO RESTRICTION PLACED ON THE NUMBER OF UNION REPRESENTATIVES BY HIS
SUBORDINATE MANAGERS. BRANCH CHIEF SMITH APPARENTLY TOOK NO ACTION
UNDER DIRECTOR SEUFERT TO ENSURE THAT HIS INTERPRETATION OF THE CONTRACT
WAS MADE MANDATORY AMONG THE MANAGERS AND ACKNOWLEDGED THAT, IN MANY
INSTANCES, THERE WERE MANAGERS WHO ALLOWED MORE THAN ONE UNION
REPRESENTATIVES TO ATTEND. WHEN THE TOPIC OF THE "LIMIT ON UNION
PERSONNEL AT INFORMATION SHARING MEETINGS" WAS RAISED BY THE UNION AT A
LABOR MANAGEMENT RELATIONS COMMITTEE MEETING IN 1977, THERE IS NO
EVIDENCE THAT MANAGEMENT ANNOUNCED A UNIFORM POLICY THAT IS WOULD MEET
WITH ONLY ONE UNION REPRESENTATIVE UNLESS GOOD AND SUFFICIENT REASON
WERE SHOWN. RATHER, MANAGEMENT RECOGNIZED A UNION ROLE IN DECIDING HOW
MANY SHOULD ATTEND. THE MINUTES STATED, IN PART, THAT "FREQUENTLY, MORE
REPRESENTATIVES THAN ARE NEEDED ATTEND INFORMATION MEETINGS . . . (I)F
THERE IS DISAGREEMENT ON HOW MANY WILL ATTEND . . . THE MATTER TO BE
DISCUSSED CAN BE BROUGHT UP AT LMRC MEETINGS. . . . " THE EVIDENCE
SHOWS THAT THE WIDESPREAD PRACTICE OF BRANCH MANAGERS AND ABOVE
(INCLUDING DIRECTOR LAYCOCK) MEETING WITH MORE THAN ONE UNION
REPRESENTATIVE CONTINUED WITHOUT OBJECTION, EXCEPT POSSIBLY FROM MR.
SMITH, UNTIL OCTOBER 18, 1978.

THE RECORD SHOWS THAT ON OCTOBER 18, 1978, NOVEMBER 16, 1978, AND
NOVEMBER 17, 1978 RESPONDENT, THROUGH DIRECTOR LAYCOCK AND ASSISTANT
DIRECTOR COPELAND, REFUSED TO PERMIT MORE THAN ONE UNION REPRESENTATIVE
TO BE PRESENT AT FORMAL DISCUSSIONS WITHIN THE MEANING OF SECTION 10(E)
OF THE ORDER AND AT INFORMAL MEETINGS. SINCE THAT DATE DIRECTOR LAYCOCK
HAS CONSISTENTLY APPLIED THE POLICY THAT HE WILL MEET WITH ONLY ONE
UNION REPRESENTATIVE UNLESS HE FINDS THAT THERE IS GOOD AND SUFFICIENT
REASON TO SHOW THAT ADDITIONAL UNION REPRESENTATIVES WOULD MAKE A
CONTRIBUTION TO THE MEETING. WHILE DIRECTOR LAYCOCK RELIED UPON AN
INTERPRETATION OF THE CONTRACT IN MAKING THIS DECISION, HE MADE NO
EFFORT TO DETERMINE WHAT THE PRACTICE WAS, OR WHETHER THIS REPRESENTED A
CHANGE. MEETINGS HAVE OCCURRED SINCE THE ABOVE DATES IN WHICH MORE THAN
ONE UNION REPRESENTATIVE ATTENDED WITHOUT OBJECTION, HOWEVER, IT IS
CLEAR THAT MANAGEMENT CONTINUES TO INSIST THAT IT HAS TOTAL DISCRETION
IN THIS AREA.

THIS CHANGE IN PAST PRACTICE INSTITUTED WITHOUT NOTICE TO THE UNION,
OR AFFORDING IT AN OPPORTUNITY TO NEGOTIATE CONSTITUTED A UNILATERAL
CHANGE IN ESTABLISHED TERMS AND CONDITIONS OF EMPLOYMENT AND A BREACH OF
RESPONDENT'S BARGAINING OBLIGATION IN VIOLATION OF SECTION 19(A)(6) OF
THE ORDER AND, DERIVATIVELY, A VIOLATION OF SECTION 19(A)(1) OF THE
ORDER.

BASED ON THE FOREGOING FINDINGS AND CONCLUSIONS, IT IS RECOMMENDED
THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER:

ORDER

PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135(B) OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE INTERNAL REVENUE SERVICE AND BROOKHAVEN SERVICE CENTER SHALL:

1. CEASE AND DESIST FROM:

(A) PROHIBITING MORE THAN ONE REPRESENTATIVE OF THE NATIONAL TREASURY
EMPLOYEES UNION

(NTEU) AND NTEU, CHAPTER 99 FROM BEING PRESENT AT FORMAL DISCUSSIONS
AND AT INFORMAL MEETINGS

WITH MANAGEMENT OFFICIALS AT THE LEVEL OF BRANCH CHIEF OR ABOVE, OR
OTHERWISE CHANGING LIKE

MATTERS AFFECTING THE WORKING CONDITIONS OF UNIT EMPLOYEES, WITHOUT
FIRST NOTIFYING THE

NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 99, AND EXCLUSIVE
BARGAINING REPRESENTATIVE

OF ITS EMPLOYEES, AND AFFORDING SUCH REPRESENTATIVES THE OPPORTUNITY
TO MEET AND CONFER ON

SUCH MATTER TO THE EXTENT CONSONANT WITH LAW AND REGULATION.

(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN

THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
AMENDED.

2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
   PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED.

(C) POST AT ITS FACILITY AT THE BROOKHAVEN SERVICE CENTER COPIES OF
THE ATTACHED NOTICE

MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON
RECEIPT OF SUCH FORMS, THEY

SHALL BE SIGNED BY THE DIRECTOR, AND SHALL BE POSTED AND MAINTAINED
BY HIM FOR 60 CONSECUTIVE

DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS
AND OTHER PLACES WHERE

NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE DIRECTOR SHALL TAKE
REASONABLE STEPS TO

INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.

(D) PURSUANT TO 5 C.F.R. SECTION 2423.30 NOTIFY THE REGIONAL
DIRECTOR, 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.

GARVIN LEE OLIVER

ADMINISTRATIVE LAW JUDGE

DATED: FEBRUARY 4, 1981

WASHINGTON, D.C.

APPENDIX

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 PROHIBIT MORE THAN ONE REPRESENTATIVE OF THE NATIONAL
TREASURY EMPLOYEES UNION (NTEU) AND NTEU, CHAPTER 99 FROM BEING PRESENT
AT FORMAL DISCUSSIONS AND AT INFORMAL MEETINGS WITH MANAGEMENT OFFICIALS
AT THE LEVEL OF BRANCH CHIEF OR ABOVE, OR OTHERWISE CHANGE LIKE MATTERS
AFFECTING THE WORKING CONDITIONS OF UNIT EMPLOYEES, WITHOUT FIRST
NOTIFYING THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 99, THE
EXCLUSIVE BARGAINING REPRESENTATIVE OF OUR EMPLOYEES, AND AFFORDING SUCH
REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER ON SUCH MATTER TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS.

WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.

(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, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS AND
TELEPHONE NUMBER IS: 441 STUART STREET, 9TH FLOOR, BOSTON,
MASSACHUSETTS 02116, 617-223-0920.

--------------- FOOTNOTES: ---------------

/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.

/2/ RESPONDENT SHOWED THAT DURING THE PERIOD 1975-1980 THERE WERE
SEVERAL MEETINGS INVOLVING DIVISION CHIEFS AND INDIVIDUAL EMPLOYEES ON
THE SUBJECT OF THE INDIVIDUAL EMPLOYEE'S TAX DEFICIENCIES. HOWEVER, AS
NOTED, THIS MEETING IS SPECIFICALLY COVERED BY ARTICLE 32, SECTION I.D.
OF THE MCA (TR. 222; JOINT EX. 1), AND IS DIFFERENT FROM THE MEETINGS
IN ISSUE. RESPONDENT SHOWED THAT AT SIX TO EIGHT OF THESE MEETINGS ONLY
ONE UNION REPRESENTATIVE WAS PRESENT; THAT ON THREE OR FOUR OCCASIONS
THE UNION SOUGHT TO APPEAR WITH TWO REPRESENTATIVES, BUT WAS ADVISED
THAT OFFICIAL TIME FOR MORE THAN ONE STEWARD WAS INAPPROPRIATE UNDER THE
CONTRACT. SUCH MEETINGS WERE CONDUCTED WITH ONE UNION STEWARD PRESENT.
(TR. 272-280; 220; 221-222).