[ v02 p477 ]
02:0477(67)CA
The decision of the Authority follows:
2 FLRA No. 67
BUREAU OF ALCOHOL, TOBACCO AND
FIREARMS, NATIONAL OFFICE AND
CENTRAL REGION
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Complainant
Assistant Secretary
Case No. 53-10665(CA)
DECISION AND ORDER
ON MAY 17, 1979, ADMINISTRATIVE LAW JUDGE GARVIN LEE OLIVER ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICE
ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY. THEREAFTER, THE COMPLAINANT FILED EXCEPTIONS
TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER AND THE
RESPONDENT FILED A RESPONSE TO THE COMPLAINANT'S EXCEPTIONS.
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 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(44 F.R. 44741, JULY 30, 1979). 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 (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
CASE, INCLUDING THE COMPLAINANT'S EXCEPTIONS AND THE RESPONDENT'S
RESPONSE TO THE EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION, AS
MODIFIED BELOW. /1/
IN REACHING HIS CONCLUSION, THE ADMINISTRATIVE LAW JUDGE FOUND THAT
SECTION 19(D) OF THE ORDER PRECLUDED CONSIDERATION OF THE ALLEGATIONS
THAT THE RESPONDENT UNILATERALLY TERMINATED CERTAIN PAST PRACTICES.
THESE PAST PRACTICES INCLUDED THE USE OF OFFICIAL OR ADMINISTRATIVE TIME
AND THE USE OF GOVERNMENT TELEPHONES BY A CHIEF STEWARD AND/OR UNION
OFFICER FOR THE PURPOSE OF CONFERRING WITH UNION STEWARDS OR THE UNION'S
NATIONAL OFFICE CONCERNING REPRESENTATIONAL MATTERS. IN THIS REGARD,
THE ADMINISTRATIVE LAW JUDGE FOUND THAT, PRIOR TO THE FILING OF THE
INSTANT UNFAIR LABOR PRACTICE CHARGE HEREIN, THE COMPLAINANT FILED A
GRIEVANCE ALLEGING THAT RESPONDENT VIOLATED THE CONTRACT BY DENYING THE
LOCAL UNION PRESIDENT/CHIEF STEWARD OFFICIAL TIME FOR THE PURPOSE OF
CONFERRING BY GOVERNMENT TELEPHONE WITH A UNION STEWARD CONCERNING A
GRIEVANCE THEN IN PROCESS. DESPITE THE EVIDENCE ESTABLISHING THAT
COMPLAINANT'S GRIEVANCE CONCERNED ONLY THE ISSUE OF THE DENIAL OF
OFFICIAL TIME AND EXCLUDED THE ISSUE OF THE DENIAL OF THE USE OF THE
GOVERNMENT TELEPHONE, THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT
SECTION 19(D) /2/ PRECLUDED CONSIDERATION NOT ONLY OF THE ISSUE OF THE
USE OF OFFICIAL TIME, BUT ALSO THE ISSUE OF THE USE OF THE TELEPHONE
SINCE BOTH ISSUES AROSE OUT OF THE SAME INCIDENT AND COULD HAVE BEEN
RAISED DURING THE GRIEVANCE PROCEDURE. ALTHOUGH THE AUTHORITY AGREES
WITH THE ADMINISTRATIVE LAW JUDGE THAT THE ISSUE OF THE USE OF OFFICIAL
TIME IS BARRED FROM CONSIDERATION IN THIS PROCEEDING BY THE PROVISIONS
OF SECTION 19(D), CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THE
AUTHORITY DOES NOT AGREE THAT THE ISSUE OF THE USE OF GOVERNMENT
TELEPHONES FOR REPRESENTATIONAL PURPOSES IS SIMILARLY BARRED FROM
CONSIDERATION AS AN UNFAIR LABOR PRACTICE. THUS, IN THE AUTHORITY'S
VIEW, SECTION 19(D) RESERVES TO THE AGGRIEVED PARTY THE OPTION OF
RAISING SUCH AN ISSUE IN EITHER THE CONTRACTUALLY ESTABLISHED GRIEVANCE
PROCEDURE OR THE UNFAIR LABOR PRACTICE PROCEDURE. SINCE THE EVIDENCE,
AS FOUND BY THE ADMINISTRATIVE LAW JUDGE, CLEARLY ESTABLISHED THAT
COMPLAINANT DID NOT RAISE THE ISSUE OF THE DENIAL OF THE USE OF
GOVERNMENT TELEPHONES FOR REPRESENTATIONAL PURPOSES IN THE GRIEVANCE
PROCEDURE, SECTION 19(D) DOES NOT PRECLUDE RAISING THIS ISSUE AS AN
UNFAIR LABOR PRACTICE UNDER OF THE ORDER.
HOWEVER, IN AGREEMENT WITH THE FURTHER FINDINGS OF THE ADMINISTRATIVE
LAW JUDGE, THE AUTHORITY CONCLUDES THAT THE EVIDENCE PRESENTED HEREIN IS
INSUFFICIENT TO ESTABLISH THAT RESPONDENT VIOLATED THE ORDER WHEN IT
TERMINATED THE ADMITTED PAST PRACTICE IN ITS CENTRAL REGION OF ALLOWING
COMPLAINANT THE USE OF CERTAIN FACILITIES FOR REPRESENTATIONAL PURPOSES,
SUCH AS TELEPHONES, MAIL AND COPYING FACILITIES. THUS, THE EVIDENCE
ESTABLISHES THAT SUCH ISSUES WERE RAISED AND DISCUSSED BY THE PARTIES
DURING NEGOTIATIONS FOR A NEW AGREEMENT, AND IN THE FACE OF RESPONDENT'S
REFUSAL TO INCORPORATE THE COMPLAINANT'S DEMANDS ON THESE ISSUES INTO
THE NEW AGREEMENT, AS WELL AS RESPONDENT'S DETERMINATION TO TERMINATE
THE ESTABLISHED PAST PRACTICES IN ITS CENTRAL REGION, COMPLAINANT, AT
VARIOUS STAGES OF THE NEGOTIATIONS PROCESS, WITHDREW ITS DEMANDS ON
THESE ISSUES AND, IN EFFECT, ACCEDED TO THE RESPONDENT'S POSITION WITH
REGARD TO THESE ISSUES. IN THESE CIRCUMSTANCES, THE AUTHORITY FINDS
THAT RESPONDENT'S ACTION IN SUBSEQUENTLY TERMINATING THE PAST PRACTICES
AFTER SUCCESSFUL NEGOTIATIONS FOR A NEW COLLECTIVE BARGAINING AGREEMENT
HAD BEEN COMPLETED WAS NOT UNILATERAL, BUT, RATHER, AS A RESULT OF GOOD
FAITH BARGAINING BY THE PARTIES. ACCORDINGLY, THE AUTHORITY SHALL
DISMISS THE SUBJECT COMPLAINT IN ITS ENTIRETY.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 53-10665(CA) BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., JANUARY 25, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
MICHAEL SITCOV, ESQUIRE
THERESE FALLER, ESQUIRE
BUREAU OF ALCOHOL, TOBACCO
AND FIREARMS
1200 PENNSYLVANIA AVENUE, N.W.
WASHINGTON, D.C. 20226
FOR THE RESPONDENTS
GERI PALAST, ASSISTANT COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W., SUITE 1101
WASHINGTON, D.C. 20006
FOR THE COMPLAINANT
BEFORE: GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
THIS CASE AROSE PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED, AS A
RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON JULY 21, 1978 BY
THE NATIONAL TREASURY EMPLOYEES UNION (HEREINAFTER CALLED THE
COMPLAINANT OR UNION), AGAINST THE BUREAU OF ALCOHOL, TOBACCO AND
FIREARMS, NATIONAL OFFICE AND CENTRAL REGION (HEREINAFTER CALLED THE
RESPONDENTS).
THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT THE RESPONDENTS VIOLATED
SECTIONS 19(A)(1) AND (6) OF THE EXECUTIVE ORDER BY TERMINATING PAST
PRACTICES AFFECTING WORKING CONDITIONS WITHOUT NEGOTIATING WITH THE
UNION. THE ALLEGED PAST PRACTICES WERE THE USE BY THE UNION IN THE
CENTRAL REGION OF GOVERNMENT PHONES TO CONFER WITH UNION STEWARDS AND
THE NTEU NATIONAL OFFICE ABOUT GRIEVANCES, OTHER FORMAL ACTIONS, AND THE
NTEU NATIONAL OFFICE ABOUT GRIEVANCES, OTHER FORMAL ACTIONS, AND THE
APPLICATION AND INTERPRETATION OF THE CONTRACT; THE USE OF OFFICIAL OR
ADMINISTRATIVE TIME ON AN AS NEEDED BASIS TO HANDLE SUCH MATTERS; AND
THE USE OF COPYING AND POSTAGE FACILITIES FOR REPRESENTATIONAL PURPOSES.
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED IN
WASHINGTON, D.C. BOTH PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED
FULL OPPORTUNITY TO BE HEARD, TO ADDUCE RELEVANT EVIDENCE, AND TO
EXAMINE AND CROSS-EXAMINE WITNESSES. POST-HEARING BRIEFS HAVE BEEN
RECEIVED FROM BOTH PARTIES AND DULY CONSIDERED EXCEPT FOR THE
ATTACHMENTS TO COMPLAINANT'S BRIEF. THESE ATTACHMENTS WERE NOT
CONSIDERED INASMUCH AS THEY RAISE NEW MATTERS AND WERE NOT OFFERED AT
THE HEARING.
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
THE COMPLAINANT IS THE EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE
OF A UNIT CONSISTING OF ALL NON-PROFESSIONAL GENERAL SCHEDULE AND WAGE
GRADE EMPLOYEES EMPLOYED BY THE REGIONAL OFFICES OF THE RESPONDENT (REG.
ADM. EXH. 1D). AN INITIAL COLLECTIVE BARGAINING AGREEMENT WAS SIGNED
MARCH 5, 1974. ARTICLE 6, SECTION 3, PROVIDED AS FOLLOWS:
ARTICLE 6
UNION REPRESENTATIVE
SECTION 3
A. THE REPRESENTATIVES DESIGNATED BY THE UNION IN SECTION 2 OF THIS
ARTICLE WILL BE EXCUSED
FROM DUTY WITHOUT CHARGE TO PAY OR LEAVE TO ADMINISTER THE TERMS AND
CONDITIONS OF THIS
AGREEMENT AS FOLLOWS:
1. ONE (1) REPRESENTATIVE IN EACH REGION DESIGNATED BY THE UNION AS
CHIEF REPRESENTATIVE
WILL BE CREDITED WITH THREE (3) HOURS PER PAY PERIOD.
2. ALL OTHER REPRESENTATIVES DESIGNATED BY THE UNION WILL BE
CREDITED WITH TWO (2) HOURS
PER PAY PERIOD.
3. REPRESENTATIVES WILL BE CREDITED ON THE OPERATIVE DATE OF THIS
AGREEMENT AND EACH
SUBSEQUENT ANNIVERSARY OF THAT DATE WITH THE TOTAL AMOUNT OF TIME TO
WHICH THEY ARE ENTITLED
UNDER THIS SUBSECTION FOR THE SUCCEEDING YEAR. THE TIME MAY BE USED
AT ANY TIME DURING THE
YEAR.
4. AN AFFECTED EMPLOYEE WILL BE ON OFFICIAL TIME TO DISCUSS WITH A
UNION REPRESENTATIVE,
USING TIME UNDER THIS SUBSECTION, ALL MATTERS FOR WHICH REMEDIAL
RELIEF MAY BE SOUGHT BY THE
EMPLOYEE UNDER THE TERMS AND CONDITIONS OF THIS AGREEMENT.
B. IN ADDITION, A UNION REPRESENTATIVE AND AN AFFECTED EMPLOYEE WILL
BE EXCUSED FROM DUTY
WITHOUT CHARGE TO PAY OR LEAVE FOR A REASONABLE PERIOD TO PRESENT
GRIEVANCES AND APPEALS, TO
PREPARE REPLIES TO NOTICES OF PROPOSED ADVERSE ACTION OR REPLIES TO
NOTICES OF PROPOSED
ADVERSE ACTION OR SUSPENSION OF THIRTY (30) DAYS OR LESS, AND TO
INTERVIEW WITNESSES AND
REVIEW DOCUMENTS WHICH ARE OTHERWISE NOT AVAILABLE DURING NON-DUTY
HOURS.
C. 1. A REPRESENTATIVE USING TIME UNDER THIS SECTION WILL CHECK
WITH HIS IMMEDIATE
SUPERVISOR, PRIOR TO LEAVING HIS WORK AREA, AND INFORM HIM OF THE
APPROXIMATE TIME HE WILL BE
AWAY.
2. A REPRESENTATIVE WHO ENTERS A WORK AREA AND USES TIME UNDER THIS
SECTION WILL CHECK
WITH THE SUPERVISOR IN THAT WORK AREA.
3. THAT SUPERVISOR WILL ALLOW THE REPRESENTATIVE TO LEAVE HIS WORK
AREA UNLESS THE
REPRESNETATIVE'S WORK REQUIREMENTS OR WORK SCHEDULE PROHIBITS HIS
RELEASE. (JOINT EXH. 2)
IN ADDITION, ARTICLE 14 (FACILITIES AND SERVICES) PROVIDED THAT THE
RESPONDENT WOULD PROVIDE THE UNION SUCH SPECIFIC ITEMS AS MEETING SPACE
(SECTIONS 1 AND 2), BULLETIN BOARDS (SECTION 4), AND A LISTING OF THE
CHAPTER PRESIDENT IN THE AGENCY TELEPHONE DIRECTORY (SECTION 7).
THE PARTIES STIPULATED THAT DURING THE LIFE OF THE FIRST AGREEMENT
MARTIN J. CONNELL, PRESIDENT AND CHIEF STEWARD, NTEU CHAPTER 88:
1. USED U.S. GOVERNMENT TELEPHONES TO CONFER WITH DESIGNATED UNION
STEWARDS IN THE ATF CENTRAL REGION ABOUT POTENTIAL AND ONGOING
GRIEVANCES AND OTHER FORMAL ACTIONS AND ABOUT THE APPLICATION AND
INTERPRETATION OF THE CONTRACT;
2. USED THE U.S. GOVERNMENT TELEPHONES TO MAKE CALLS TO THE NATIONAL
OFFICE (AFTER CHARGING THE CALLS TO HIS HOME NUMBER) AND TO RECEIVE
CALLS FROM THE NATIONAL OFFICE OF NTEU REGARDING THE MATTERS ENUMERATED
IN (1) ABOVE;
3. USED "BANK TIME" TO HANDLE THE MATTERS REFERRED TO IN (1) ABOVE
(E.G., IF 5 MINUTES WERE REQUIRED FOR A PHONE CALL, THEN 5 MINUTES OF
BANK TIME WOULD BE LOGGED AND CHARGED AGAINST THE AMOUNT OF TIME
ALLOTTED IN THE CONTRACT; AND
4. USED COPYING AND POSTAGE FACILITIES FOR REPRESENTATIONAL
PURPOSES; AND
5. MANAGEMENT IN THE CENTRAL REGION WAS AWARE OF ALL OF THE ABOVE
PRACTICES BY MARTIN CONNELL. (JOINT EXH. 3).
THE PARTIES BEGAN NEGOTIATIONS ON A NEW AGREEMENT IN APRIL 1976.
(TR. 71). AS RELEVANT HERE, THE UNION PROPOSED THAT "WHATEVER TIME IS
SPENT IN THE CONDUCT OF UNION-EMPLOYER BUSINESS IS SPENT AS MUCH IN THE
INTEREST OF THE EMPLOYER AS IN THAT OF THE UNION"; THAT, "A STEWARD,
CHIEF STEWARD OR CHAPTER PRESIDENT MAY UTILIZE OFFICIAL TIME,
HEREINAFTER REFERRED TO AS INDIVIDUAL BANK TIME, TO CONFER WITH AN
AFFECTED EMPLOYEE WITH RESPECT TO ANY MATTERS FOR WHICH REMEDIAL RELIEF
MAY BE SOUGHT PURSUANT TO RESPECT TO ANY MATTERS FOR WHICH REMEDIAL
RELIEF MAY BE SOUGHT PURSUANT TO THE TERMS, AND CONDITIONS OF THIS
AGREEMENT;" AND THAT "EMPLOYEES SERVING AS UNION STEWARDS SHALL BE
DEEMED AS PERFORMING 'OTHER DUTIES AS ASSIGNED'" AS PHRASED IN THEIR
POSITION DESCRIPTIONS. (REG. ADM. EXH. 2A, P. 13 & 44, ARTICLE 6,
SECTIONS 3A & 3B AND ARTICLE 13, SECTION 3; TR. 27, 45-49). RESPONDENT
REJECTED THESE PROPOSALS. RESPONDENT INSISTED THAT EMPLOYEES PERFORMING
UNION REPRESENTATIONAL DUTIES WERE NO LONGER SERVING IN A GOVERNMENTAL
CAPACITY AND SHOULD BE O4 ADMINISTRATIVE LEAVE. (TR. 27, 45-48). THE
PARTIES DISCUSSED WHAT THEY MEANT BY "OFFICIAL TIME" AND "ADMINISTRATIVE
LEAVE." THE UNION EXPLAINED THAT "OFFICIAL TIME" MEANT THAT UNION
REPRESENTATIVES WERE PERFORMING GOVERNMENTAL FUNCTIONS, JUST AS MUCH AS
IF THEY WERE PERFORMING THE JOBS FOR WHICH THEY WERE HIRED. RESPONDENT
EXPLAINED THAT "ADMINISTRATIVE LEAVE" MEANT THAT THE UNION
REPRESENTATIVES WOULD BE EXCUSED FROM DUTY WITHOUT CHARGE TO PAY OR
LEAVE AND HAD NO RIGHTS TO EITHER BENEFITS OR SERVICES PROVIDED BY THE
GOVERNMENT FOR EMPLOYEES. (TR. 50).
IN DISCUSSING THE NUMBER OF HOURS TO BE PROVIDED FOR THE CHIEF
STEWARD AND CHAPTER PRESIDENT, THE UNION PROPOSED AN INCREASE IN THE
NUMBER OF HOURS PER PAY PERIOD FOR CHIEF STEWARDS A4D CHAPTER PRESIDENTS
ON THE BASIS THAT THEY WOULD CONFER WITH STEWARDS ON GRIEVANCES,
ESPECIALLY IN COMPLEX CASES. (TR. 52-53, 63-64). THIS WAS ALSO
DISCUSSED IN TERMS OF PREPARING OR PROCESSING GRIEVANCES. (TR. 29).
RESPONDENT REJECTED THE PROPOSAL FOR INCREASED TIME CONTENDING THAT THIS
WAS TRAINING TIME WHICH WAS ALREADY PROVIDED UNDER THE CONTRACT AND ALSO
WAS IN THE NATURE OF INTERNAL UNION BUSINESS. (TR. 52-53, 63-64). THIS
WAS ALSO DISCUSSED IN TERMS OF PREPARING OR PROCESSING GRIEVANCES. (TR.
29). RESPONDENT REJECTED THE PROPOSAL FOR INCREASED TIME CONTENDING
THAT THIS WAS TRAINING TIME WHICH WAS ALREADY PROVIDED UNDER THE
CONTRACT AND ALSO WAS IN THE NATURE OF INTERNAL UNION BUSINESS. (TR.
52-53, 63-64, 93). THROUGHOUT THE NEGOTIATIONS DIFFERENT UNION
OFFICIALS -- STEWARD, CHIEF STEWARD, AND CHAPTER PRESIDENT -- WERE
ALWAYS CONSIDERED SEPARATELY IN TERMS OF HOW MUCH TIME AND WHAT
FUNCTIONS THESE PERSONS WOULD HAVE. (TR. 50-53). THIS REPRESENTED A
CHANGE IN SOME RESPECTS FROM THE FIRST CONTRACT WHERE UNION
REPRESENTATIVES WERE TO BE EXCUSED FROM DUTY "TO ADMINISTER THE TERMS
AND CONDITIONS" OF THE AGREEMENT. (TR. 54-55; JOINT EXH. 2, ARTICLE 6,
SECTION 3A SUPRA.)
THE PARTIES AGREED TO CONTINUE A PROVISION IN THE PREVIOUS AGREEMENT
WHICH PROVIDED FOR THE LISTING OF THE NAME, OFFICE TELEPHONE NUMBER, AND
HOME TELEPHONE NUMBER OF EACH CHAPTER PRESIDENT IN THE AGENCY'S
TELEPHONE DIRECTORY. (REG. ADM. EXH. 1D, P. 24; JOINT EXH. 2, P. 21;
TR. 22, 60-63; 76-77).
A DISCUSSION OF THE USE OF GOVERNMENT TELEPHONES CAME UP DURING
NEGOTIATIONS CONCERNING A UNION PROPOSAL THAT EACH UNION STEWARD BE
PROVIDED A TELEPHONE. (TR. 19-20, 62). RESPONDENT TOOK THE POSITION
THAT PHONES FOR EACH STEWARD WOULD BE EXPENSIVE, UNNECESSARY, AND
ILLEGAL. (TR. 21). THE UNION THEN ADVISED RESPONDENT THAT THERE HAD
BEEN A PAST PRACTICE OF MARTIN CONNELL USING GOVERNMENT TELEPHONES IN
THE CENTRAL REGION. (TR. 21, 57). THIS WAS THE FIRST TIME MANAGEMENT
OUTSIDE OF THE CENTRAL REGION KNEW OF THE PRACTICE. (TR. 56).
RESPONDENT STATED THAT THEY WERE NOT GOING TO ALLOW THIS PRACTICE TO
CONTINUE, AND IT WOULD HAVE TO BE STOPPED. (TR. 35-36, 41-42, 57,
69-70, 72-73, 80).
THE UTILIZATION OF GOVERNMENT TELEPHONES WAS ALSO DISCUSSED IN TERMS
OF WHAT KIND OF LEAVE UNION REPRESENTATIVES WOULD USE FOR THEIR
REPRESENTATIONAL FUNCTIONS. RESPONDENT'S POSITION WAS THAT IF UNION
REPRESENTATIVES WERE ON ADMINISTRATIVE LEAVE THEY WOULD NOT BE ABLE TO
USE GOVERNMENT TELEPHONES. (TR. 57-62).
THE UNION DROPPED ITS PROPOSAL FOR A PHONE FOR EACH STEWARD AT THE
IMPASSES PANEL LEVEL, AND THE MATTER OF TELEPHONES WAS DISCUSSED
THEREAFTER ONLY IN THE CONTEXT OF THE NEGOTIATIONS CONCERNING OFFICIAL
TIME OR ADMINISTRATIVE LEAVE. (TR. 71). THE UNION, IN PRESENTING ITS
POSITION TO THE IMPASSES PANEL ON ITS PROPOSAL CONCERNING THE USE OF THE
INTERNAL MAIL SYSTEM NOTED THAT THE USE OF THE INTERNAL MAIL SYSTEM WAS
NECESSARY, IN PART, BECAUSE OF "THE AGENCY'S ANNOUNCED POSITION THAT
GOVERNMENT PHONES MAY NOT BE USED BY STEWARDS AND AFFECTED EMPLOYEES."
(RESP. EXH. 1).
POSTAGE FACILITIES
DURING NEGOTIATIONS THE UNION PROPOSED THAT RESPONDENT AGREE TO
DELIVER MAIL VIA THE INTRA-AGENCY MAIL SYSTEM. (REG. ADM. EXH. 2A, ART.
14, SEC. 13; TR. 23). RESPONDENT TOOK THE POSITION THAT THIS WOULD BE
INAPPROPRIATE, AS USE OF THE MAIL IS LIMITED TO OFFICIAL BUSINESS, AND
THE AGENCY WAS NOT GOING TO SUBSIDIZE THE UNION'S ACTIVITIES. (TR. 24,
39, 59). THE PAST PRACTICE OF MARTIN CONNELL'S USE OF POSTAGE
FACILITIES WAS DISCUSSED. (TR. 40-41, 74). RESPONDENT INDICATED THAT
THESE PRACTICES WOULD NOT GO ON ANY FURTHER AND WOULD HAVE TO BE HALTED.
(TR. 41, 69-70). THE UNION DROPPED ITS PROPOSAL TO USE THE MAIL DURING
A MEDIATION SESSION AT THE IMPASSES PANEL (TR. 71-72).
COPYING FACILITIES
THERE WERE NO PROPOSALS MADE DURING THE NEGOTIATIONS CONCERNING THE
USE OF COPYING FACILITIES. (TR. 25). IT WAS ONLY DISCUSSED IN TERMS OF
THE TYPES OF FACILITIES THAT WOULD NOT BE MADE AVAILABLE TO EMPLOYEES IF
THEY WERE SERVING AS STEWARDS IN AN ADMINISTRATIVE LEAVE CAPACITY. (TR.
60). THE PAST PRACTICE OF MARTIN CONNELL'S USE OF POSTAGE FACILITIES
WAS MADE KNOWN IN APRIL 1976 DURING THE NEGOTIATIONS, AND RESPONDENT
TOOK THE POSITION ON ALL THESE PRACTICES THAT THEY WERE NOT GOING TO GO
ON ANY FURTHER. (TR. 40-41, 74).
THE AGREEMENT
THE PARTIES AGREED TO ADMINISTRATIVE LEAVE FOR UNION REPRESENTATIVES,
THE TYPES OF FUNCTIONS EACH WOULD PERFORM AND THE AMOUNT OF TIME THEY
WOULD BE ALLOTTED AT THE FINAL SESSION BEFORE THE IMPASSES PANEL. (TR.
81, 88). RESPONDENT CONTENDS THAT AGREEMENT ON ADMINISTRATIVE LEAVE
CARRIED WITH IT THE VIEW THAT HAD BEEN EXPRESSED FROM APRIL 1976 THROUGH
APRIL 1977 - THAT ADMINISTRATIVE LEAVE MEANT UNION REPRESENTATIVES WERE
EXCUSED FROM DUTY, WERE NOT PERFORMING OFFICIAL FUNCTIONS, AND COULD NOT
USE ANY OFFICIAL GOVERNMENT SERVICES. (TR. 81).
THE AGREEMENT CONTAINED NO LANGUAGE ABOUT THE PAST PRACTICES
INVOLVING THE USE OF GOVERNMENT TELEPHONES, COPYING, AND POSTAGE
FACILITIES. (TR. 41, 43, 72). NO PROPOSALS WERE MADE FOR CONTINUING
THE PRACTICES. (TR. 104). RESPONDENT FELT THAT THE PRACTICES WOULD BE
STOPPED AS A RESULT OF WHAT HAD BEEN DECIDED DURING THE NEGOTIATIONS,
AND THAT THE UNION WAS ON NOTICE THAT IT INTENDED TO PUT A STOP TO THE
PRACTICES. (TR. 69-73, 75). THE UNION TAKES THE POSITION THAT THE PAST
PRACTICES WERE LEFT INTACT.
THE NEW AGREEMENT WAS SIGNED SEPTEMBER 19, 1977 AND BECAME EFFECTIVE
IN NOVEMBER 1977. ARTICLE 6, UNION STEWARDS, SECTION 3 PROVIDED AS
FOLLOWS:
SECTION 3
A. THE STEWARDS DESIGNATED BY THE UNION PURSUANT TO SECTION 2 OF
THIS ARTICLE WILL BE
GRANTED ADMINISTRATIVE LEAVE AS FOLLOWS:
1. STEWARD POSITIONS WILL HAVE TWO (2) HOURS PER PAY PERIOD FOR THE
PURPOSE OF ALLOWING
STEWARDS TO DISCUSS WITH EMPLOYEES POTENTIAL GRIEVANCES AND PREPARING
GRIEVANCES. THIS TIME
WILL ALSO COVER ALL TRAVEL TIME AWAY FROM THEIR JOB WHERE THE PURPOSE
OF THE TRAVEL IS TO
INTERVIEW WITNESSES AND REVIEW DOCUMENTS OTHERWISE NOT AVAILABLE
DURING NON-DUTY HOURS.
2. THE CHIEF STEWARD SHALL RECEIVE THREE (3) HOURS PER PAY PERIOD TO
ENGAGE IN ACTIVITIES
SET FORTH IN SUBSECTION 1 OF THIS SECTION, INCLUDING TRAVEL TO SECOND
AND THIRD STEP GRIEVANCE
MEETINGS. THE PARTIES AGREE THAT IF THE ADDITIONAL ONE (1) HOUR PER
PAY PERIOD GIVEN TO CHIEF
STEWARDS IS NOT SUFFICIENT FOR TRAVEL TO SECOND AND THIRD STEP
GRIEVANCE MEETINGS, EITHER SIDE
MAY REOPEN THIS SECTION FOR FURTHER NEGOTIATIONS.
3. THE CHAPTER PRESIDENT SHALL RECEIVE TWO (2) HOURS PER PAY PERIOD
TO ATTEND THIRD STEP
GRIEVANCE MEETINGS AND OTHER FORMAL DISCUSSIONS WITH THE EMPLOYER.
B. IN ADDITION A UNION STEWARD AND AFFECTED
EMPLOYEE SHALL RECEIVE A REASONABLE AMOUNT OF TIME TO PRESENT
GRIEVANCES, PREPARE AND PRESENT
REPLIES TO NOTICES OF PROPOSED ADVERSE ACTIONS AND SUSPENSIONS OF
THIRTY DAYS OR LESS, AND TO
INTERVIEW WITNESSES WHO HAVE EXPRESSED AN UNWILLINGNESS OR INABILITY
TO BE INTERVIEWED AFTER
HOURS, AND TO REVIEW DOCUMENTS NOT AVAILABLE DURING NON-DUTY HOURS.
C. A UNION STEWARD WILL RECEIVE A REASONABLE AMOUNT OF TIME TO
TRAVEL TO GRIEVANCE
MEETINGS, TO ARBITRATION HEARINGS WHERE THE STEWARD IS THE
REPRESENTATIVE OF AN EMPLOYEE
WITHIN HIS/HER AREA OFFICE OR HIS/HER REGIONAL OFFICE. IT IS AGREED
THAT IF A STEWARD
REPRESENTS AN EMPLOYEE OUTSIDE HIS/HER AREA OFFICE OR OUTSIDE HIS/HER
REGIONAL OFFICE, THE
AFORECITED TRAVEL SHALL BE CHARGED TO BANK TIME.
D. THE TOTAL TIME AVAILABLE TO EACH POSITION FOR THE SUCCEEDING YEAR
UNDER SECTION 3A OF
THIS ARTICLE WILL BE CREDITED TO THE POSITION ON THE EFFECTIVE DATE
OF THIS AGREEMENT AND EACH
YEAR THEREAFTER. THE TIME MAY BE USED AT ANY TIME DURING THE YEAR
BUT MAY NOT BE CARRIED OVER
TO SUBSEQUENT YEARS. EMPLOYEES APPOINTED TO FILL A VACATED POSITION
HAVE AVAILABLE ONLY THE
UNUSED TIME PREVIOUSLY CREDITED TO THAT POSITION.
E. 1. STEWARDS USING TIME UNDER THIS ARTICLE, OR LEAVING THEIR WORK
SITE TO PERFORM ANY
OTHER REPRESENTATIONAL FUNCTION, WILL CHECK WITH THEIR IMMEDIATE
SUPERVISORS, PRIOR TO LEAVING
THEIR WORK SITE, AND INFORM THEIR SUPERVISORS OF THE APPROXIMATE TIME
THEY WISH TO BE AWAY. A
STEWARD ENTERING A WORK AREA TO PERFORM A REPRESENTATIONAL FUNCTION
WILL CHECK WITH THE
SUPERVISOR IN THAT WORK AREA.
2. SUPERVISORS WILL ALLOW THE STEWARD TO LEAVE HIS/HER WORK AREA
UNLESS THE STEWARD'S WORK
REQUIREMENTS OR WORK SCHEDULE PROHIBITS HIS/HER RELEASE.
3. STEWARDS ARE RESPONSIBLE FOR ASSURING THAT TIME USED UNDER
SECTION 3A OF THIS ARTICLE
IS RECORDED ON THEIR TIME CARDS.
THE RESPONDENT HELD TRAINING SESSIONS WITH ITS FIELD MANAGERS TO
ADVISE THEM OF THE TERMS OF THE NEW AGREEMENT. THESE TRAINING SESSIONS
LED TO MR. CONNELL'S SUPERVISOR ADVISING MR. CONNELL IN JANUARY 1978
THAT HE WOULD NOT BE PERMITTED TO ENGAGED IN THE ACTIVITIES SET FORTH
ABOVE AND PREVIOUSLY ENGAGED IN DURING THE LIFE OF THE FIRST AGREEMENT.
(TR. 73-74; JOINT EXH. 3).
ON FEBRUARY 3, 1978, MR. CONNELL, CHIEF STEWARD, NTEU CHAPTER 88,
FILED A GRIEVANCE WITH HIS SUPERVISOR, JAMES O. WALL, CONCERNING ACTIONS
TAKEN BY MR. WALL DURING THE PERIOD JANUARY 30 THROUGH FEBRUARY 2, 1978.
MR. CONNELL ALLEGED THAT HE WAS ENTITLED TO ADDITIONAL BANK TIME UNDER
ARTICLE 6, SECTION 3A 1 AND 2 OF THE AGREEMENT, AND THAT HE HAD NOT BEEN
ALLOWED TIME TO DISCUSS A GRIEVANCE IN PERSON OR BY TELEPHONE WITH
ANOTHER STEWARD WHO WAS A GRIEVANT'S REPRESENTATIVE. IN APPEALING THE
STEP ONE DECISION, MR. CONNELL ACKNOWLEDGED THAT HE HAD ALSO BEEN DENIED
THE USE OF A GOVERNMENT TELEPHONE TO CALL THE STEWARD "BUT I DID NOT
MAKE THIS A PART OF THE ISSUE FORMING MY GRIEVANCE." (REG. ADM. EXH.
2C-2-2C-7). COMPLAINANT HAS INVOKED ARBITRATION ON THE GRIEVANCE
PURSUANT TO ARTICLE 34 OF THE AGREEMENT. (REG. ADM. EX. 2C-1).
MR. CONNELL, ON BEHALF OF NTEU, CHAPTER 88, FILED THE CHARGE IN THIS
MATTER ON FEBRUARY 7, 1978, AND ALSO ALLEGED THAT THE ACTIONS AROSE OUT
OF ACTIONS BY MR. WALL DURING THE PERIOD OF JANUARY 30 THROUGH FEBRUARY
3, 1978. (REG. ADM. EXH. 1B). THE CHARGE, CARRIED OVER TO THE
COMPLAINT, ALLEGED THAT MR. WALL HAD MADE CHANGES WITHOUT NEGOTIATING
WITH THE UNION BY DENYING MR. CONNELL THE USE OF GOVERNMENT TELEPHONES
TO CONFER WITH UNION STEWARDS AND THE NTEU NATIONAL OFFICE ABOUT
POTENTIAL AND ON-GOING GRIEVANCES, APPEAL ACTIONS, AND THE APPLICATION
AND INTERPRETATION OF THE AGREEMENT; THE USE OF OFFICIAL TIME INSTEAD
OF ANNUAL LEAVE FOR THE PURPOSE OF HANDLING SUCH MATTERS; AND THE USE
OF COPYING MACHINES, OFFICE SUPPLIES, AND POSTAGE FACILITIES FOR
REPRESENTATIONAL PURPOSES. (REG. ADM. EXH. 1B). AS NOTED, THE PARTIES
HAVE STIPULATED TO THIS ACTION BY MR. WALL. (JOINT EXH. 3).
DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
THERE IS NO INHERENT RIGHT UNDER THE ORDER FOR EMPLOYEES, IN THEIR
CAPACITY AS UNION OFFICIALS OR REPRESENTATIVES, TO USE OFFICIAL TIME FOR
EMPLOYEE REPRESENTATIONAL ACTIVITIES. DEPARTMENT OF THE AIR FORCE, BASE
PROCUREMENT OFFICE, VANDENBERG AIR FORCE BASE, CALIFORNIA, 4 FLRC 587,
591, FLRC NO. 75A-25(1976). IT IS FURTHER WELL ESTABLISHED THAT THE USE
OF AGENCY FACILITIES AND EQUIPMENT BY A UNION IS A PRIVILEGE AND NOT A
RIGHT. U.S. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, NEW
ORLEANS DISTRICT, NEW ORLEANS, LOUISIANA, A/SLMR NO. 1034(1978). A
PRACTICE MAY, IF CONSISTENTLY FOLLOWED, RIPEN INTO A WORKING CONDITION
WHICH MAY NOT BE UNILATERALLY CHANGED WITHOUT AFFORDING THE EXCLUSIVE
BARGAINING REPRESENTATIVE THE OPPORTUNITY TO NEGOTIATE CONCERNING SUCH
PROPOSED CHANGE IN WORKING CONDITIONS. NATIONAL LABOR RELATIONS BOARD,
3 A/SLMR 88, A/SLMR NO. 246(1973). A COLLECTIVE BARGAINING AGREEMENT
ALSO CREATES MUTUAL RIGHTS AND OBLIGATIONS WHICH EITHER PARTY MAY
LAWFULLY INSIST BE OBSERVED. DEPARTMENT OF THE AIR FORCE, 4392ND
AEROSPACE SUPPORT GROUP, VANDENBERG AFB, CALIFORNIA, 7 A/SLMR 989,
A/SLMR NO. 935(1977); VETERANS ADMINISTRATION CENTER, BATH, NEW YORK,
A/SLMR NO. 335(1973).
COMPLAINANT CONTENDS THAT CHIEF STEWARD CONNELL'S USE OF TELEPHONES,
POSTAL SERVICES, AND COPYING FACILITIES FOR REPRESENTATIONAL PURPOSES
AND UTILIZATION OF ADMINISTRATIVE LEAVE FOR THE PURPOSES OF CONFERRING
WITH STEWARDS AND UNION HEADQUARTERS BY TELEPHONE CONSTITUTED PAST
PRACTICES AND IMPLIED TERMS OF THE CONTRACT IN THE CENTRAL REGION, AND
NO WAIVER OF ITS RIGHT TO NEGOTIATE A CHANGE IN THESE PRACTICES CAN BE
FOUND IN THE BARGAINING HISTORY, SURROUNDING CIRCUMSTANCES, OR FINAL
LANGUAGE OF THE SECOND COLLECTIVE BARGAINING AGREEMENT.
RESPONDENT'S POSITION IS THAT THE UNFAIR LABOR PRACTICE PROCEEDING IS
BARRED BY SECTION 19(B) OF THE ORDER SINCE THE MATTERS WERE PREVIOUSLY
RAISED IN A GRIEVANCE; THAT THE ACTIONS RELATE SOLELY TO ARGUABLE
INTERPRETATIONS OF THE NEW CONTRACT; THAT THERE WAS NO PAST PRACTICE
BINDING ON THE RESPONDENT; AND THAT IT WAS MERELY IMPLEMENTING MORE
RESTRICTIVE LANGUAGE OF THE NEW AGREEMENT.
SECTION 19(D) OF THE EXECUTIVE ORDER PROVIDES, IN PERTINENT PART,
"ISSUES WHICH CAN BE RAISED UNDER A GRIEVANCE PROCEDURE MAY, IN THE
DISCRETION OF THE AGGRIEVED PARTY, BE RAISED UNDER THAT PROCEDURE OR THE
COMPLAINT PROCEDURE, BUT NOT UNDER BOTH PROCEDURES." "ISSUES WHICH CAN
BE RAISED" REFERS TO ISSUES IN THE SAME INCIDENT. DEPARTMENT OF THE
TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, A/SLMR NO.
1045(1978); DEPARTMENT OF DEFENSE, U.S. NAVY, NORFOLK NAVAL SHIPYARD, 7
A/SLMR 829, A/SLMR NO. 908(1977).
THE GRIEVANCE FILED BY MARTIN J. CONNELL, CHIEF STEWARD, NTEU CHAPTER
88, CONCERNED ACTIONS TAKEN BY HIS SUPERVISOR DURING THE PERIOD JANUARY
30 THROUGH FEBRUARY 2, 1978 WHICH AFFECTED CONNELL'S RIGHTS AS A DULY
AUTHORIZED REPRESENTATIVE OF THE LABOR ORGANIZATION. AS NOTED, MR.
CONNELL ALLEGED IN THE GRIEVANCE THAT HE WAS ENTITLED TO ADDITIONAL
ADMINISTRATIVE LEAVE "BANK TIME" UNDER THE AGREEMENT AND WAS ENTITLED TO
USE SUCH TIME FOR THE PURPOSE OF DISCUSSING A GRIEVANCE IN PERSON OR BY
PHONE WITH ANOTHER STEWARD WHO WAS A GRIEVANT'S REPRESENTATIVE. MR.
CONNELL ACKNOWLEDGED THAT HE HAD ALSO BEEN DENIED THE USE OF A
GOVERNMENT TELEPHONE TO CALL THE STEWARD, "BUT I DID NOT MAKE THIS A
PART OF THE ISSUE FORMING MY GRIEVANCE." SINCE THE ISSUE OF THE USE OF A
GOVERNMENT TELEPHONE BY MR. CONNELL TO CONFER WITH A STEWARD AS WELL AS
THE ISSUE OF THE UNILATERAL CHANGE IN POLICY CONCERNING HIS USE OF THE
TELEPHONE AND BANK TIME FOR SUCH PURPOSE AROSE OUT OF THE SAME INCIDENT
AND COULD HAVE BEEN RAISED DURING THE GRIEVANCE PROCEDURE, SECTION 19(D)
OF THE ORDER BARS THESE IDENTICAL ISSUES FROM BEING DETERMINED IN THIS
UNFAIR LABOR PRACTICE PROCEEDING. CF. U.S. GEOLOGICAL SURVEY, GULF OF
MEXICO, OCS OPERATIONS AND LOCAL 3457, AFGE, CASE NO. 64-4091(CA),
DECEMBER 22, 1978; DEPARTMENT OF DEFENSE, DEPENDENT SCHOOLS EUROPE,
CASE NO. 22-08769(SEPT. 20, 1978); DEPARTMENT OF THE NAVY, PEARL HARBOR
NAVAL SHIPYARD, ASSISTANT SECRETARY CASE NO. 73-587(CA), REQUEST FOR
REVIEW DENIED, 3 FLRC 596, FLRC NO. 75-A-57(SEPT. 18, 1975). DEPARTMENT
OF THE NAVY, MARE ISLAND NAVAL SHIPYARD, VALLEJO. CALIFORNIA, ACCRUING
TO MR. CONNELL BY VIRTUE OF HIS STATUS AS AN OFFICIAL REPRESENTATIVE OF
THE EXCLUSIVE BARGAINING REPRESENTATIVE. THE FACT THAT THE GRIEVANCE
WAS NOT FILED BY THE EXCLUSIVE REPRESENTATIVE IS ITS INSTITUTIONAL
CAPACITY IS NOT CONSIDERED TO REQUIRE A DIFFERENT RESULT. COMPARE
DEPARTMENT OF DEFENSE, DEPENDENT SCHOOLS EUROPE, AND U.S. GEOLOGICAL
SURVEY, SUPRA, WITH DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
SERVICE, FRESNO SERVICE CENTER, A/SLMR NO. 983(1978).
SUBSTANTIVE REASONS ALSO EXIST FOR THE DISMISSAL OF THE COMPLAINT.
UNDER THE RULES AND REGULATIONS OF THE ASSISTANT SECRETARY, 29 C.F.R.
SECTION 203.15, "(A) COMPLAINANT IN ASSERTING A VIOLATION OF THE ORDER
SHALL HAVE THE BURDEN OF PROVING THE ALLEGATIONS OF THE COMPLAINT BY A
PREPONDERANCE OF THE EVIDENCE." THIS BURDEN HAS NOT BEEN MET IN THIS
CASE. THE EVIDENCE SUPPORTS THE POSITION OF THE RESPONDENT THAT IT DID
NOT UNILATERALLY CHANGE PAST PRACTICES, BUT MERELY IMPLEMENTED THE
PROVISIONS OF THE NEW AGREEMENT BETWEEN THE PARTIES.
THE PARTIES STIPULATED THAT DURING THE LIFE OF THE FIRST CONTRACT,
MR. CONNELL WAS EXCUSED FROM HIS DUTIES TO CONFER WITH DESIGNATED
REPRESENTATIVES AND THE NTEU NATIONAL OFFICE AND WAS PERMITTED TO CHARGE
SUCH ACTIVITY TO HIS BANK OF TIME PROVIDED IN ARTICLE 6, SECTION 3A OF
THE PREVIOUS CONTRACT. AS NOTED UNDER ARTICLE 6, SECTION 3A, OF THE
FIRST AGREEMENT, EMPLOYEE REPRESENTATIVES WERE "EXCUSED FROM DUTY
WITHOUT CHARGE TO PAY OR LEAVE TO ADMINISTER THE TERMS AND CONDITIONS OF
THE AGREEMENT." REPRESENTATIVES CHARGED THE AFORECITED USE OF TIME AWAY
FROM THEIR DUTIES AGAINST THE BANK OF TIME PROVIDED FOR IN THE SAME
SUBSECTION. THE CONDITIONS UNDER WHICH EMPLOYEE REPRESENTATIVES COULD
BE EXCUSED FROM THEIR DUTIES UNDER THIS SUBSECTION WAS VIRTUALLY
UNLIMITED AS LONG AS THE USE OF TIME RELATED TO THE "ADMINISTRATION OF
THE CONTRACT." THE STIPULATION REFLECT THAT ONE OF THE MATTERS MR.
CONNELL CONFERRED WITH STEWARDS AND THE NTEU NATIONAL OFFICE ABOUT WAS
"THE APPLICATION AND INTERPRETATION OF THE CONTRACT." HOWEVER, UNDER THE
CURRENT CONTRACT A REPRESENTATIVE'S ENTITLEMENT TO USE "BANK TIME" IS
MUCH MORE LIMITED BY SPECIFIC PROVISIONS IN THE CURRENT CONTRACT THAN IT
WAS UNDER THE THE PREVIOUS CONTRAC.T ARTICLE 6, SECTION 3A 1, 2, AND 3
PROVIDES FOR EMPLOYEES TO BE EXCUSED FROM THEIR DUTIES AND TO CHARGE THE
ABSENCE TO "BANK TIME" ONLY FOR SPECIFIC FUNCTIONS.
NOWHERE DOES THE CURRENT CONTRACT PROVIDE FOR THE CHIEF STEWARD OR
CHAPTER PRESIDENT TO BE EXCUSED FROM THEIR DUTIES TO HAVE DISCUSSIONS
WITH STEWARDS OR THE NTEU NATIONAL OFFICE, NOR IS THERE GENERAL LANGUAGE
SIMILAR TO THE PREVIOUS CONTRACT UNDER WHICH SUCH ACTIVITIES COULD BE
CLAIMED. INSTEAD, A CHIEF STEWARD IS PROVIDED TIME FOR THE PURPOSE OF
"DISCUSSING(ING) WITH EMPLOYEES POTENTIAL GRIEVANCES AND PREPARING
GRIEVANCES." HE IS ALSO PROVIDED TIME FOR TRAVEL AND TO INTERVIEW
WITNESSES. A CHAPTER PRESIDENT IS ONLY ALLOWED ADMINISTRATIVE LEAVE "TO
ATTEND THIRD STEP GRIEVANCE MEETINGS AND OTHER FORMAL DISCUSSIONS WITH
THE EMPLOYER." UNION PROPOSALS FOR MORE GENERAL LANGUAGE AND FOR CHIEF
STEWARDS AND CHAPTER PRESIDENTS TO CONFER WITH STEWARDS WAS DISCUSSED
AND REJECTED.
COMPLAINANT'S ARGUMENT THAT A STEWARD, CHIEF STEWARD, OR CHAPTER
PRESIDENT IS ALLOWED TO CONFER WITH ONE ANOTHER OR OTHER UNION OFFICIALS
UNDER ARTICLE 6, SECTION 3A.1 AS PART OF "PREPARING GRIEVANCES" OR
"INTERVIEW(ING) WITNESSES," AND NEED NOT CHECK WITH THE IMMEDIATE
SUPERVISOR UNDER ARTICLE 6, SECTION E.1 TO USE TIME UNDER THE ARTICLE
UNLESS LEAVING THE WORK SITE, ARE ISSUES INVOLVING DIFFERING AND
ARGUABLE INTERPRETATIONS OF THE NEGOTIATED AGREEMENT WHICH ARE PROPER
SUBJECTS FOR RESOLUTION UNDER THE PARTIES' CONTRACTUAL
GRIEVANCE-ARBITRATION PROCEDURE RATHER THAN THROUGH THE UNFAIR LABOR
PRACTICE PROCEDURES OF THE EXECUTIVE ORDER. CF. DEPARTMENT OF THE NAVY,
NAVAL WEAPONS STATION, CONCORD, CALIFORNIA, A/SLMR NO. 1115(1978).
THE RECORD ALSO SUPPORTS RESPONDENT'S POSITION THAT THE DENIAL OF
GOVERNMENT FACILITIES TO MR. CONNELL, SUCH AS TELEPHONES, POSTAGE, AND
COPYING FACILITIES WAS BASED ON THE FACT THAT THE NEW CONTRACT HAD
RECENTLY GONE INTO EFFECT AND THESE MATTERS HAD BEEN NEGOTIATED. AS
FOUND ABOVE, THE PAST PRACTICES WERE NEGOTIATED IN TERMS OF THE PARTIES'
DEFINITIONS OF OFFICIAL TIME AND ADMINISTRATIVE LEAVE AND THE UNION'S
PROPOSALS CONCERNING TELEPHONES AND THE USE OF THE INTERNAL MAIL SYSTEM.
BASED ON THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS, IT IS
DETERMINED THAT A PREPONDERANCE OF THE EVIDENCE DOES NOT SUPPORT A
VIOLATION OF SECTIONS 19(A)(1) AND (6) OF THE EXECUTIVE ORDER, AS
ALLEGED.
RECOMMENDATION
HAVING FOUND THAT RESPONDENTS HAVE NOT ENGAGED IN CONDUCT PROHIBITED
BY SECTIONS 19(A)(1) AND (6) OF THE EXECUTIVE ORDER, IT IS HEREBY
RECOMMENDED THAT THE COMPLAINT HEREIN BE DISMISSED IN ITS ENTIRETY.
GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DATED: MAY 17, 1979
WASHINGTON, D.C.
/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/ SECTION 19(D) READS, IN PERTINENT PART:
ISSUES WHICH CAN BE RAISED UNDER A GRIEVANCE PROCEDURE MAY, IN THE
DESCRETION OF THE
AGGRIEVED PARTY, BE RAISED UNDER THAT PROCEDURE OR THE COMPLAINT
PROCEDURE UNDER THIS SECTION,
BUT NOT UNDER BOTH PROCEDURES.