[ v03 p568 ]
03:0568(93)CA
The decision of the Authority follows:
3 FLRA No. 93
U.S. DEPARTMENT OF THE NAVY
NAVAL AIR ENGINEERING CENTER,
LAKEHURST, NEW JERSEY
Activity/Petitioner
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 23/284,
Intervenor
and
INTERNATIONAL ASSOCIATION OF
MACHINIST AND AEROSPACE WORKERS,
AFL-CIO, LOCAL 2581
Intervenor
Assistant Secretary
Case No. 32-05035(RA)
U.S. DEPARTMENT OF THE NAVY
NAVAL AIR ENGINEERING CENTER,
LAKEHURST, NEW JERSEY
Respondent
and
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS,
AFL-CIO, LOCAL 2581
Complainant
Assistant Secretary
Case No. 32-05681(CA)
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE ENTITLED PROCEEDING ISSUED
HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD NOT
ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND
RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY. HE ALSO
RECOMMENDED THAT COMPLAINANT'S OBJECTION TO THE RUNOFF ELECTION BE
OVERRULED AND THAT A CERTIFICATION OF REPRESENTATIVE BE ISSUED BY THE
REGIONAL DIRECTOR. NO EXCEPTIONS WERE FILED TO THE ADMINISTRATIVE LAW
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 NUMBER 2 OF 1978 (43 FED. REG. 36040)1980)), WHICH TRANSFER OF
FUNCTION IS IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS (45 FED. REG. 3482(1980)). 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, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS AS MODIFIED BELOW.
THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,
AFL-CIO, LOCAL 2581 (IAM) FILED THE SUBJECT COMPLAINT ALLEGING THAT THE
U.S. DEPARTMENT OF THE NAVY, NAVAL AIR ENGINEERING CENTER, LAKEHURST,
NEW JERSEY (RESPONDENT) VIOLATED SECTION 19(A)(1) AND (5) OF THE ORDER
BY ITS REFUSAL TO ACCORD APPROPRIATE RECOGNITION TO THE IAM, BY ITS
UNILATERAL TERMINATION OF THE PARTIES' NEGOTIATED AGREEMENT, AND BY ITS
REFUSAL TO PROCESS GRIEVANCES UNDER THAT NEGOTIATED AGREEMENT. THE IAM
ALSO ALLEGED THESE SAME ACTIONS OF THE RESPONDENT AS THE BASIS FOR AN
OBJECTION TO THE CONDUCT OF THE RUNOFF ELECTION HELD IN THE SUBJECT RA
CASE PURSUANT TO THE DECISION AND DIRECTION OF ELECTION OF THE ASSISTANT
SECRETARY IN CASE NO. 32-05035(RA) (SEE U.S. DEPARTMENT OF THE NAVY,
NAVAL ENGINEERING CENTER, LAKEHURST, NEW JERSEY, 8 A/SLMR 912, A/SLMR
NO. 1104(1978)). THE OTHER OBJECTIONS TO THE CONDUCT OF THE RUNOFF
ELECTION FILED BY THE IAM WERE OVERRULED BY THE REGIONAL DIRECTOR, AND
THE IAM FAILED TO FILE A TIMELY REQUEST FOR REVIEW AS TO THOSE
OBJECTIONS.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE RESPONDENT DID NOT
VIOLATE SECTION 19(A)(1) AND (5) OF THE ORDER AS ALLEGED, AND
RECOMMENDED THAT THE COMPLAINT BE DISMISSED. IN ADDITION, HE FOUND THAT
THIS CONDUCT DID NOT INTERFERE WITH A FAIR ELECTION AND RECOMMENDED THAT
THE OBJECTION BE OVERRULED. IN REGARD TO THE UNFAIR LABOR PRACTICE
ALLEGATIONS, THE ADMINISTRATIVE LAW JUDGE NOTED THAT IN THE DECISION AND
DIRECTION OF ELECTION IN CASE NO. 32-05035(RA) ABOVE, THE ASSISTANT
SECRETARY CONCLUDED THAT THE JUNE 6, 1977 REORGANIZATION CREATED A NEW
ORGANIZATIONAL ENTITY, AND FUNDAMENTALLY ALTERED THE CHARACTER AND SCOPE
OF SEVERAL EXCLUSIVE RECOGNIZED UNITS, INCLUDING THE UNIT REPRESENTED BY
THE IAM, AND THAT, AS A RESULT, SUCH UNITS WERE NO LONGER APPROPRIATE
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER. UNDER THESE
CIRCUMSTANCES, THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE AGENCY HAD NO
OBLIGATION TO CONTINUE TO ACCORD EXCLUSIVE RECOGNITION TO ANY OF THE
LABOR ORGANIZATIONS AS EXCLUSIVE REPRESENTATIVE. ACCORDINGLY, HE
CONCLUDED THAT RESPONDENT DID NOT VIOLATE SECTION 19(A)(1) AND (5) OF
THE ORDER, WHEN, IN RELIANCE ON THE ASSISTANT SECRETARY'S DECISION, IT
WITHDREW ITS RECOGNITION FROM IAM. FOR ESSENTIALLY THE SAME REASONS,
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE OBJECTION TO THE RUNOFF
ELECTION WAS WITHOUT MERIT, AND RECOMMENDED THAT IT BE OVERRULED, AND
APPROPRIATE CERTIFICATION BE ISSUED.
CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THE AUTHORITY CONCLUDES
THAT RESPONDENT VIOLATED SECTION 19(A)(1) AND (5) OF THE ORDER BY ITS
ACTIONS HEREIN. FURTHER, WHILE IN AGREEMENT WITH THE ADMINISTRATIVE LAW
JUDGE THAT THE OBJECTION TO THE RUNOFF ELECTION BE OVERRULED, THE
AUTHORITY REACHES THIS CONCLUSION FOR DIFFERENT REASONS.
WITH REGARD TO THE ALLEGED UNFAIR LABOR PRACTICE, IT IS THE
AUTHORITY'S VIEW THAT THE MATTER IS CONTROLLED BY THE DECISION OF THE
FEDERAL LABOR RELATIONS COUNCIL IN DEPARTMENT OF THE INTERIOR, BUREAU OF
RECLAMATION, YUMA PROJECTS OFFICE, YUMA, ARIZONA, 4 FLRC 484, FLRC NO.
74A-52(1976). IN THE YUMA CASE, ABOVE, THE COUNCIL ADDRESSED THE
QUESTION OF AN AGENCY'S OBLIGATION UNDER THE EXECUTIVE ORDER, TO AN
EXCLUSIVE BARGAINING REPRESENTATIVE FOLLOWING A REORGANIZATION AND
DURING THE PENDENCY OF A REPRESENTATION PETITION. IN THAT REGARD, THE
COUNCIL STATED:
THEREFORE, FOLLOWING A REORGANIZATION AND DURING THE PENDENCY OF A
REPRESENTATION PETITION,
THE OBLIGATION OF AN AGENCY UNDER THE ORDER, WITH RESPECT TO
PERSONNEL POLICIES AND PRACTICES
AND MATTERS AFFECTING THE WORKING CONDITIONS OF EMPLOYEES WHO ARE
COVERED BY THE PETITION, IS
NOT TO MAINTAIN THE STATUS QUO ABSENT EVIDENCE OF AN OVERRIDING
EXIGENCY, AS HELD IN THE
PRESENT CASE BY THE ASSISTANT SECRETARY, BUT INSTEAD TO MAINTAIN
RECOGNITION AND TO ADHERE TO
TERMS OF THE PRIOR AGREEMENT TO THE MAXIMUM EXTENT POSSIBLE UNTIL THE
REPRESENTATION MATTER IS
RESOLVED.
WITH RESPECT TO THE PRECISE NATURE OF THE OBLIGATION TO MAINTAIN
RECOGNITION AND TO ADHERE
TO THE TERMS OF THE PRIOR AGREEMENT TO THE MAXIMUM EXTENT POSSIBLE
UNTIL THE REPRESENTATION
ISSUES RAISED BY THE REORGANIZATION ARE RESOLVED, THIS MEANS THAT
CONSISTENT WITH THE
CIRCUMSTANCES OF THE REORGANIZATION AND WITH THE NECESSARY
FUNCTIONING OF THE AGENCY, AN
AGENCY MUST CONTINUE TO RECOGNIZE THE STATUS OF AN INCUMBENT LABOR
ORGANIZATION AS THE
EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES; ADHERE TO THE TERMS OF
EXISTING AGREEMENTS; AND
OTHERWISE MAINTAIN EXISTING PERSONNEL POLICIES AND PRACTICES AND
MATTERS AFFECTING WORKING
CONDITIONS TO THE EXTENT CONSISTENT WITH THE BARGAINING OBLIGATION
UNDER SECTION 11(A) OF THE
ORDER. APPLYING THESE PRINCIPLES TO THE INSTANT CASE, WHILE THE
ASSISTANT SECRETARY HAD DETERMINED THAT THE PREVIOUSLY EXISTING UNIT WAS
NO LONGER APPROPRIATE, THE REPRESENTATIONAL MATTER WAS STILL PENDING.
THAT IS, THE REPRESENTATION CASE WHICH WOULD RESOLVE THE ISSUE OF
REPRESENTATION FOR THE EFFECTED EMPLOYEES WAS STILL BEING PROCESSED. AS
STATED IN YUMA, DURING THIS PERIOD THE AGENCY IS MANDATED UNDER
EXECUTIVE ORDER REQUIREMENTS, TO MAINTAIN RECOGNITION AND TO ADHERE TO
TERMS OF THE PRIOR AGREEMENT TO THE MAXIMUM EXTENT POSSIBLE. HOWEVER,
IN THE INSTANT CASE, AS FOUND BY THE ADMINISTRATIVE LAW JUDGE, THE
AGENCY WITHDREW RECOGNITION AND TERMINATED THE AGREEMENT, INCLUDING
REFUSING TO PROCESS GRIEVANCES UNDER THE AGREEMENT. UNDER THESE
CIRCUMSTANCES, THE AUTHORITY CONCLUDES THAT RESPONDENT HEREIN VIOLATED
SECTION 19(A)(1) AND (5) OF THE ORDER.
HOWEVER, WITH REGARD TO THE OBJECTION TO THE RUNOFF ELECTION, THE
AUTHORITY CONCLUDES, IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE,
THAT THE OBJECTION SHOULD BE OVERRULED, ALTHOUGH FOR DIFFERENT REASONS.
THE RECORD IS CLEAR THAT THE BASIS FOR THE OBJECTION IS THE SAME CONDUCT
WHICH WAS THE GRAVAMEN OF THE SUBJECT UNFAIR LABOR PRACTICE COMPLAINT.
IT IS EQUALLY CLEAR FROM THE RECORD THAT THE ALLEGED CONDUCT, WHICH HAS
ALREADY BEEN DETERMINED TO HAVE CONSTITUTED AN UNFAIR LABOR PRACTICE,
OCCURRED PRIOR TO THE HOLDING OF THE FIRST ELECTION HEREIN. IN REPORT
ON A RULING OF THE ASSISTANT SECRETARY, REPORT NO. 50, IT WAS HELD THAT:
THE CRITICAL PERIOD PRECEDING A RUNOFF ELECTION DURING WHICH
OBJECTIONABLE CONDUCT OF ONE
PARTY MAY BE USED AS GROUNDS FOR SETTING ASIDE THE RUNOFF ELECTION
BEGINS RUNNING FROM THE
DATE OF THE FIRST ELECTION. CONDUCT OCCURRING PRIOR TO THE FIRST
ELECTION, AND NOT URGED AS
OBJECTION TO THAT ELECTION, MAY NOT BE CONSIDERED AS GROUNDS FOR
SETTING ASIDE THE RUNOFF
ELECTION(.)
UNDER THESE CIRCUMSTANCES THE AUTHORITY CONCLUDES THAT THE OBJECTION
WAS UNTIMELY FILED, AND THUS, SHOULD BE OVERRULED, AND AN APPROPRIATE
CERTIFICATION SHOULD BE ISSUED BY THE REGIONAL DIRECTOR. /1/
ORDER
PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE U.S. DEPARTMENT OF THE NAVY, NAVAL AIR ENGINEERING CENTER,
LAKEHURST, NEW JERSEY SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO ACCORD APPROPRIATE RECOGNITION TO A LAWFULLY
DESIGNATED EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, AFTER A
REORGANIZATION AND DURING THE PENDENCY OF A REPRESENTATION MATTER, OR
REFUSING TO ADHERE TO THE TERMS OF ITS NEGOTIATED AGREEMENT WITH THE
EXCLUSIVE REPRESENTATIVE, TO THE MAXIMUM EXTENT POSSIBLE, UNTIL THE
REPRESENTATION MATTER IS RESOLVED.
(B) IN ANY LIKE OR RELATED MATTER INTERFERING WITH, RESTRAINING, OR
COERCING ITS 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, AMENDED:
(A) AFTER A REORGANIZATION AND DURING THE PENDENCY OF A
REPRESENTATION MATTER, MAINTAIN RECOGNITION OF ANY EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES, AND ADHERE TO THE TERMS OF ANY PRIOR
AGREEMENT, TO THE MAXIMUM EXTENT POSSIBLE, UNTIL THE REPRESENTATION
MATTER IS RESOLVED.
(B) IF REQUESTED, PROCESS PURSUANT TO THE INTERNATIONAL ASSOCIATION
OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, LOCAL 2581 AGREEMENT THOSE
GRIEVANCES REJECTED DURING THE PENDENCY OF THE REPRESENTATION CASE.
(C) POST AT ALL FACILITIES AND INSTALLATIONS OF THE U.S. DEPARTMENT
OF THE NAVY, NAVAL AIR ENGINEERING CENTER, LAKEHURST, NEW JERSEY, 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
COMMANDING OFFICER OF THE U.S. DEPARTMENT OF THE NAVY, NAVAL AIR
ENGINEERING CENTER, LAKEHURST, NEW JERSEY, 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 COMMANDING OFFICER SHALL TAKE
REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
OR COVERED BY ANY OTHER MATERIAL.
(D) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY IN WRITING WITHIN 30
DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE OBJECTION TO THE RERUN ELECTION IN
CASE NO. 32-05035(RA) BE, AND IT HEREBY IS, OVERRULED, AND THE CASE BE
RETURNED TO THE APPROPRIATE REGIONAL DIRECTOR FOR FINAL ACTION
CONSISTENT WITH THIS DECISION.
ISSUED, WASHINGTON, D.C., JULY 3, 1980.
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REFUSE TO ACCORD APPROPRIATE RECOGNITION TO A LAWFULLY
DESIGNATED EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES AFTER A
REORGANIZATION AND DURING THE PENDENCY OF A REPRESENTATION MATTER, OR
REFUSE TO ADHERE TO THE TERMS OF OUR NEGOTIATED AGREEMENT WITH THE
EXCLUSIVE REPRESENTATIVE, TO THE MAXIMUM EXTENT POSSIBLE, UNTIL THE
REPRESENTATIVE MATTER IS RESOLVED.
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.
WE WILL, IF REQUESTED, PROCESS PURSUANT TO THE INTERNATIONAL
ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, LOCAL 2581
AGREEMENT THOSE GRIEVANCES REJECTED DURING THE PENDENCY OF THE
REPRESENTATION CASE.
WE WILL, IF REQUESTED BY THE CURRENT EXCLUSIVE REPRESENTATIVE,
REINSTATE THE GRIEVANCES WHICH WERE UNLAWFULLY REJECTED BY THE NAVAL AIR
ENGINEERING CENTER IN CASE NO. 32-05681(CA) AFTER SEPTEMBER 22, 1978,
AND PROCESS SUCH GRIEVANCES PURSUANT TO THE TERMS OF THE NEGOTIATED
AGREEMENT IN EFFECT AT THE TIME OF THE REJECTION.
(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 IS:
ROOM 241, 26 FEDERAL PLAZA, NEW YORK, NEW YORK 10007, AND WHOSE
TELEPHONE NUMBER IS: (212) 264-4934.
JOSEPH DALLAS
SENIOR LABOR RELATIONS ADVISOR
NAVAL CIVILIAN PERSONNEL COMMAND
NORTHERN FIELD DIVISION, NAVY BASE
PHILADELPHIA, PA 19112
FOR THE PETITIONER/RESPONDENT
PETER PETRONE
SPECIAL REPRESENTATIVE
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS
35 GENESEE LANE
WILLINGBORO, NEW JERSEY 08046
FOR THE COMPLAINANT
BRUCE HEPPEN, ESQUIRE
1016 16TH STREET, N.W.
WASHINGTON, D.C. 20036
FOR THE INTERVENOR, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES
BEFORE: FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
PRELIMINARY STATEMENT
THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREINAFTER REFERRED TO AS THE ORDER). ON JUNE 5, 1979, MR. RONALD T.
SMITH, DIRECTOR OF THE NEW YORK REGION OF THE FEDERAL LABOR RELATIONS
AUTHORITY ISSUED A NOTICE OF HEARING IN WHICH HE CONSOLIDATED FOR
PURPOSE OF HEARING AND DECISION AN UNFAIR LABOR PRACTICE COMPLAINT
ALLEGING A VIOLATION OF SECTION 19(A(1) AND (5) OF THE ORDER AND AN
OBJECTION TO A RUNOFF ELECTION ENCOMPASSING THE SAME FACTS WHICH GAVE
RISE TO THE COMPLAINT.
ESSENTIALLY THE QUESTIONS TO BE RESOLVED ARE WHETHER, IN THE
CIRCUMSTANCES OF THIS CASE, THE RESPONDENT'S UNILATERAL TERMINATION OF
AN UNEXPIRED COLLECTIVE BARGAINING AGREEMENT AND ITS REFUSAL TO PROCESS
GRIEVANCES THEREUNDER CONSTITUTES AN UNFAIR LABOR PRACTICE, AND WHETHER
SUCH CONDUCT INTERFERED WITH THE RUNOFF ELECTION SO AS TO WARRANT
SETTING THE ELECTION RESULTS ASIDE.
AT THE HEARING ON OCTOBER 23, 1979 IN LAKEHURST, NEW JERSEY, THE
RESPONDENT AND COMPLAINANT WERE BOTH REPRESENTED. THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES (HEREINAFTER REFERRED TO AS NFFE), AN
INTERVENOR IN CASE NO. 32-05035(RA) AND WINNER OF THE RUNOFF ELECTION,
WAS ALSO REPRESENTED.
AT THE HEARING, ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, ADDUCE EVIDENCE, EXAMINE AND CROSS-EXAMINE WITNESSES, AND ARGUE
ORALLY. THE RESPONDENT ARGUED ORALLY BUT DID NOT FILE A BRIEF. THE
COMPLAINANT AND NFFE FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
STIPULATIONS OF THE PARTIES, FROM MY OBSERVATION OF THE WITNESSES AND
THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE PRESENTED AT
THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS.
FINDINGS OF FACT
1. ON AUGUST 23, 1978, THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS ISSUED A DECISION, ORDER, AND DIRECTION OF
ELECTION IN CASE NO. 32-05035(RA). THAT DECISION (A/SLMR NO. 1104)
CONTAINS CERTAIN BACKGROUND INFORMATION, AND FINDINGS AND CONCLUSIONS
WHICH DESERVE MENTION AT THIS POINT.
A. THE RA PETITION SOUGHT A DETERMINATION WITH RESPECT TO THE EFFECT
OF A 1977 REORGANIZATION ON THE CONTINUED APPROPRIATENESS OF SIX OUT OF
EIGHT EXCLUSIVELY RECOGNIZED UNITS REPRESENTED BY SIX UNIONS. NOT AT
ISSUE WAS THE APPROPRIATENESS OF A UNIT OF PROFESSIONAL EMPLOYEES AND A
UNIT OF FIREFIGHTERS.
B. THE ASSISTANT SECRETARY FOUND, CONTRARY TO THE ACTIVITY, THAT TWO
OF THE SIX UNITS IN DISPUTE MAINTAINED THEIR SEPARATE IDENTITY AND WERE
NOT MATERIALLY AFFECTED BY THE REORGANIZATION. THE PETITION WAS
DISMISSED AS TO THOSE TWO UNITS. WITH RESPECT TO THE REMAINING FOUR
UNITS, HOWEVER, THE ASSISTANT SECRETARY CONCLUDED THAT THE EMPLOYEES
SHARED A COMMON MISSION, COMMON OVERALL SUPERVISION ENGAGED IN A HIGHLY
ORGANIZED AND INTEGRATED WORK FUNCTION, AND ENJOYED COMMON PERSONNEL
AND
LABOR RELATIONS POLICIES AND PRACTICES. ACCORDINGLY, HE FOUND THEY
CONSTITUTED AN APPROPRIATE RESIDUAL UNIT OF ALL UNREPRESENTED EMPLOYEES
AND DIRECTED AN ELECTION. THE PERTINENT FINDINGS OF THE ASSISTANT
SECRETARY WHICH FORMED THE BASIS FOR HIS FINDINGS AND CONCLUSIONS ARE
QUOTED HERE AT LENGTH:
WITH REGARD TO THE IMPACT OF THE REORGANIZATION ON THESE FOUR
EXCLUSIVELY RECOGNIZED UNITS,
AS NOTED ABOVE, THE EVIDENCE ESTABLISHES THAT THE NAS AND NATSF WERE
DISESTABLISHED, AND THAT
THE UNIT EMPLOYEES INVOLVED WERE PHYSICALLY AND/OR ADMINISTRATIVELY
TRANSFERRED TO THE VARIOUS
DIVISIONS WITHIN THE ACTIVITY WHERE THEY WERE COMMINGLED WITH OTHER
EMPLOYEES OF THE
ACTIVITY. AS A CONSEQUENCE, EMPLOYEES OF EACH OF THE THREE FORMER
COMMANDS NOW WORK ALONG
SIDE EACH OTHER, SHARING COMMON SUPERVISION, GENERALLY SIMILAR JOB
CLASSIFICATIONS AND DUTIES,
AND ENJOY A HIGH DEGREE OF INTEGRATION OF OPERATIONS WITH OTHER
EMPLOYEES IN THEIR OWN AND IN
OTHER DIVISIONS. THE RECORD ALSO REVEALS THAT THE REORGANIZATION OF
THE ACTIVITY RESULTED IN
SIGNIFICANT CHANGES IN, AND ADDITIONS TO, THE MISSION AND
ORGANIZATIONAL STRUCTURE OF THE
ACTIVITY. THUS, THE ACTIVITY'S MISSION WAS ALTERED AND ENLARGED SO
AS TO ENCOMPASS THE
MISSIONS OF THE FORMER NATF AND NAS, THE ORGANIZATIONAL STRUCTURE OF
THE ACTIVITY WAS
SIGNIFICANTLY ALTERED, REFINED AND ENLARGED, AND EMPLOYEES OF THE
ACTIVITY AND THE FORMER NATF
AND NAS WERE THOROUGHLY INTEGRATED THROUGHOUT THE VARIOUS
ORGANIZATIONAL COMPONENTS OF THE
ACTIVITY.
UNDER THESE CIRCUMSTANCES, I FIND THAT THE JUNE 6, 1977,
REORGANIZATION, IN EFFECT, CREATED
A NEW ORGANIZATIONAL ENTITY, AND EFFECTED A SUBSTANTIAL CHANGE IN
BOTH THE SCOPE AND CHARACTER
OF EACH OF THE EXCLUSIVELY RECOGNIZED UNITS REPRESENTED BY THE IAM,
THE MTC, AND NFFE LOCALS
23 AND 284 WHICH WERE NOT FUNCTIONAL UNITS WITHIN THE MEANING OF
SECTION 10(B) OF THE
ORDER. ACCORDINGLY, I FIND THAT THE REORGANIZATION RENDERED THESE
EXCLUSIVELY RECOGNIZED
UNITS INAPPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER
THE ORDER.
2. RESPONDENT AND IAM HAVE A HISTORY OF COLLECTIVE BARGAINING AT THE
LOCATION CONCERNED HEREIN AND WERE PARTY TO A COLLECTIVE BARGAINING
AGREEMENT WITH A TERM OF DECEMBER 9, 1976 TO DECEMBER 9, 1978.
3. ON SEPTEMBER 22, 1978, A MEETING WAS HELD AT BUILDING 200, NAVAL
AIR ENGINEERING CENTER, LAKEHURST, NEW JERSEY WITH REPRESENTATIVES OF
RESPONDENT AND IAM IN ATTENDANCE. KEN ROBINSON, LABOR RELATIONS OFFICER
FOR RESPONDENT; AND RICHARD BURKE, PRESIDENT LOCAL 2581 IAM, ROBERT
FAUNTLEREY AND PETER PETRONE, GRAND LODGE REPRESENTATIVES, IAM, AND JOHN
MEESE, NATIONAL COORDINATOR, GOVERNMENT EMPLOYEES DEPARTMENT, IAM WERE
PRESENT. AT THIS MEETING MR. ROBINSON ADVISED THE IAM THAT, BASED UPON
THE ASSISTANT SECRETARY'S DECISION IN A/SLMR NO. 1104, THE UNITS OF
RECOGNITION HAD BEEN TERMINATED AND, THEREFORE, THE CONTRACT BETWEEN
RESPONDENT AND IAM WAS NO LONGER APPROPRIATE OR VALID. THE DECISION
APPLIED TO ALL FOUR BARGAINING UNITS, NOT IAM ALONE. I CONCLUDE THAT
THE RESPONDENT, BY SUCH ACTION, WITHDREW RECOGNITION FROM THE IAM AS
EXCLUSIVE REPRESENTATIVE OF ANY OF ITS EMPLOYEES.
4. A CHARGE LETTER, DATED SEPTEMBER 22, 1978, WAS TIMELY FILED WITH
RESPONDENT BY IAM, PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED,
CHARGING THE IMPROPER TERMINATION OF ITS COLLECTIVE BARGAINING AGREEMENT
BY RESPONDENT.
5. SUBSEQUENT TO THE SEPTEMBER 22 ANNOUNCEMENT, IAM FILED CERTAIN
GRIEVANCES WITH RESPONDENT PURSUANT TO THE GRIEVANCE PROCEDURE OF THE
COLLECTIVE BARGAINING AGREEMENT.
6. BY MEMORANDA DATED OCTOBER 12, 1978 AND NOVEMBER 6, 1978, A.R.
LEDDER, PUBLIC WORKS OFFICER, ACTING AS AN AGENT OF RESPONDENT,
RESPONDED TO SAID GRIEVANCES BY EXPRESSING RESPONDENT'S POSITION THAT
THE COLLECTIVE BARGAINING AGREEMENT WAS NO LONGER RECOGNIZED BY
RESPONDENT, AND THAT IAM WAS NO LONGER THE EXCLUSIVE REPRESENTATIVE OF
THE UNIT EMPLOYEES BASED UPON THE ASSISTANT SECRETARY'S DECISION IN
A/SLMR NO. 1104 THAT THE UNITS NO LONGER EXISTED. THUS, GRIEVANCES
FILED BY IAM WERE NOT PROCESSED BY THE ACTIVITY UNDER THE CONTRACT.
HOWEVER, THE AGENCY GRIEVANCE PROCEDURE WAS AVAILABLE.
7. IAM, ALLEGING THAT IT HAD NOT RECIEVED A TIMELY FILED DECISION
FROM RESPONDENT ON ITS CHARGE, FILED A TIMELY COMPLAINT ON NOVEMBER 1,
1978 WITH THE U.S. DEPARTMENT OF LABOR ALLEGING THAT RESPONDENT HAD
UNILATERALLY TERMINATED ITS COLLECTIVE BARGAINING AGREEMENT ON OR AFTER
AUGUST 23, 1978, IN VIOLATION OF SECTION 19(A)(1) AND (5) OF THE ORDER.
THE COMPLAINT WAS FILED ON THE SAME DATE AS THE TALLY OF BALLOTS WAS
ISSUED WITH RESPECT TO THE FIRST ELECTION, THE RESULTS OF WHICH WERE
INCONCLUSIVE.
8. THE REGIONAL DIRECTOR'S REPORT AND FINDINGS ON OBJECTIONS WAS
STIPULATED BY THE PARTIES AND CONTAINS THE FOLLOWING STATEMENTS:
"ON NOVEMBER 20, 1978, A PRE-ELECTION MEETING WAS HELD TO PREPARE FOR
A RUNOFF
ELECTION. DURING THE COURSE OF THIS MEETING, THE IAM ARGUED THAT THE
ULP SHOULD BE DECIDED
BEFORE PROCEEDING TO THE RUN-OFF ELECTION. AT THE CONCLUSION OF THE
MEETING, THE IAM, NFFE,
AND ACTIVITY SIGNED AN ELECTION AGREEMENT WITH THE DATE OF ELECTION
LEFT UNDECIDED. IAM
SIGNED THE AGREEMENT UNDER PROTEST. ON NOVEMBER 21, 1978, THE AREA
ADMINISTRATOR OF THE
LMSA'S NEWARK AREA OFFICE DECIDED THAT THE RUNOFF ELECTION WOULD BE
HELD ON DECEMBER 12,
1978. THIS WAS INCORPORATED IN ELECTION AGREEMENT WHICH WAS
TRANSMITTED BY LMSA TO ALL OF THE
INTERESTED PARTIES BY LETTER DATED NOVEMBER 22, 1978.
BY TELEGRAM DATED NOVEMBER 17, 1978, THE IAM BY COUNSEL, REQUESTED
THAT THE ASSISTANT
SECRETARY OVERRULE THE REGIONAL ADMINISTRATOR AND DELAY THE ELECTION
PENDING THE RESOLUTION OF
THE UNFAIR LABOR PRACTICE COMPLAINT. IT ARGUED THAT THE CHARGES
COULD AFFECT THE OUTCOME OF
THE ELECTION. BY LETTER DATED NOVEMBER 27, 1978, THE ASSISTANT
SECRETARY DENIED IAM'S REQUEST
STATING THAT THE UNFAIR LABOR PRACTICE DID NOT BLOCK THE SCHEDULED
RUNOFF AND THAT THERE WAS
NO PROVISION IN THE ASSISTANT SECRETARY'S REGULATIONS FOR OVERTURNING
THE REGIONAL
ADMINISTRATOR'S DECISION ON SUCH A MATTER."
9. THERE WERE 1097 ELIGIBLE VOTERS IN THE RUNOFF ELECTION. THE
TALLY OF BALLOTS SHOWS THAT 330 VOTES WERE CAST FOR NFFE AND 235 VOTES
FOR IAM. TWO CHALLENGED BALLOTS WERE NOT SUFFICIENT TO AFFECT THE
RESULTS OF THE ELECTION. ALTOGETHER 567 VALID VOTES WERE COUNTED PLUS
CHALLENGED BALLOTS.
10. TIMELY OBJECTIONS TO CONDUCT AFFECTING THE RESULTS OF THE
ELECTION WERE FILED ON DECEMBER 18, 1978 BY IAM ALLEGING, INTER ALIA,
THAT RESPONDENT'S ALLEGED TERMINATION OF ITS COLLECTIVE BARGAINING
AGREEMENT, ALSO THE SUBJECT OF ITS COMPLAINT IN CASE NO. 32-05681(CA),
CONSTITUTED OBJECTIONABLE CONDUCT.
11. FOLLOWING AN INVESTIGATION OF SAID OBJECTIONS, PURSUANT TO THE
TRANSITION RULES AND REGULATIONS OF THE FEDERAL LABOR RELATIONS
AUTHORITY, THE REGIONAL DIRECTOR FOR THE NEW YORK REGION ISSUED A REPORT
AND FINDINGS ON OBJECTIONS ON JUNE 5, 1979 WHICH WAS DULY SERVED ON ALL
PARTIES TO THIS PROCEEDING. THE REGIONAL DIRECTOR CONCLUDED THAT IAM'S
OBJECTION NO. 2, THE ALLEGATION THAT RESPONDENT IMPROPERLY TERMINATED
THE COLLECTIVE BARGAINING AGREEMENT, RAISED A RELEVANT ISSUE OF FACT
WHICH MAY HAVE AFFECTED THE RESULTS OF THE RUNOFF ELECTION. THE
REGIONAL DIRECTOR ALSO CONCLUDED THAT THE REMAINING OBJECTIONS WERE
WITHOUT MERIT AND WERE OVERRULED. NO REQUEST FOR REVIEW OF THE REGIONAL
DIRECTOR'S REPORT HAS BEEN FILED BY ANY PARTY AND THOSE OBJECTIONS WHICH
WERE OVERRULED ARE NOT, THEREFORE, A PART OF THIS PROCEEDING.
12. AS PREVIOUSLY NOTED, ON JUNE 5, 1979 THE REGIONAL DIRECTOR
ISSUED A CONSOLIDATED NOTICE OF HEARING ON OBJECTIONS AND COMPLAINT
ALLEGING VIOLATIONS OF SECTION 19 OF EXECUTIVE ORDER 11491, AS AMENDED,
CONSOLIDATING CASES NOS. 32-05681(CA) AND 32-05035(RA) FOR HEARING.
13. ACTIVITY'S CONDUCT DURING PENDENCY OF RA PETITION AND PRIOR TO
ASSISTANT SECRETARY'S DECISION. JOINT EXHIBIT NO. 4 IS A MEMORANDUM
DATED MARCH 23, 1978 FROM THE COMMANDING OFFICER AND ENTITLED "LABOR
RELATIONS POLICY AT NAEC, PENDING DEPARTMENT OF LABOR DECISION." THIS
DOCUMENT NOTES THAT THE PENDING RA PETITION IS BASED UPON A "GOOD FAITH
DOUBT AS TO WHAT UNION OR UNIONS REPRESENT VARIOUS EMPLOYEES AT NAEC" AS
A RESULT OF THE PHASE II COMMAND CONSOLIDATION AT LAKEHURST. IN
PERTINENT PART, THIS DOCUMENT STATES AS FOLLOWS:
FOR THE NAEC MANAGEMENT TO BE CONSISTENT IN HANDLING FURTHER
REPRESENTATION QUESTIONS
RAISED BY THESE UNIONS, THE FOLLOWING POLICY WILL APPLY. . . . THE
EMPLOYER WILL, TO THE
EXTENT POSSIBLE, HONOR THE RELATIONSHIPS WITH THE ORGANIZATIONS WHICH
HAD EXCLUSIVE
RECOGNITION FROM THE THREE COMMANDS IN EXISTENCE PRIOR TO THE PHASE
II OF COMMAND
CONSOLIDATION OF 5 JUNE 1977. THE ADHERENCE TO ALL PROVISIONS OF THE
AGREEMENTS THAT THESE
ORGANIZATIONS HAVE ENTERED INTO WILL BE EXTREMELY DIFFICULT. IF
FAIRNESS IS TO PREVAIL, WHILE
THE PARTIES ARE AWAITING A UNIT DETERMINATION DECISION FROM THE
DEPARTMENT OF LABOR, THE
FOLLOWING PRINCIPLES SHOULD BE ADHERED TO BY SUPERVISORS AND MANAGERS
DURING THIS PERIOD:
(A). THE EMPLOYER WILL TAKE EACH LABOR MANAGEMENT SITUATION AND
CONSIDER IT ON A CASE BY
CASE BASIS TO DETERMINE IF ANY CONFLICT EXISTS IN UNIT DETERMINATION.
B. THE EMPLOYER WILL TO THE BEST OF OUR ABILITY HONOR CONTRACT
PROVISIONS WHERE IT CAN
DETERMINE NO CONFLICT OF INTEREST BETWEEN OR AMONG TWO OR MORE LABOR
ORGANIZATIONS.
C. WHENEVER IT IS DETERMINED THAT THE INTEREST OF MORE THAN ONE
UNION IS INVOLVED, THE
EMPLOYER WILL CONSULT WITH ALL EXCLUSIVELY RECOGNIZED UNIONS PRIOR TO
FORMULATING ITS POSITION
CONCERNING THE ISSUE OR ISSUES IN CONFLICT.
D. SUPERVISORS AND MANAGERS SHOULD CONTINUE TO RESOLVE PROBLEMS AND
GRIEVANCES AT THE
LOWEST LEVEL POSSIBLE. WHENEVER THERE IS DOUBT IN A
MANAGER'S/SUPERVISOR'S MIND AS TO WHETHER
A CONFLICT EXISTS BETWEEN AND/OR AMONG TWO OR MORE LABOR
ORGANIZATIONS, THE PROBLEM OR
GRIEVANCE WILL BE REFERRED TO THE LABOR RELATIONS OFFICE, CIVILIAN
PERSONNEL DEPARTMENT (CODE
123), FOR CONSULTATION AS PROVIDED IN 3.C ABOVE, PRIOR TO TAKING ANY
ACTION IN THE ISSUE.
E. IN DETERMINING WHETHER A CONFLICT EXISTS, SUPERVISORS AND
MANAGERS SHOULD USE THE UNIT
DEFINITIONS FROM EXISTING AGREEMENTS AS A GUIDE.
14. COMMUNICATION TO EMPLOYEES OF THE ACTIVITY'S REFUSAL TO PROCESS
GRIEVANCES. THREE UNION PRESIDENTS TESTIFIED WITH RESPECT TO THE
REACTION OF THEIR RESPECTIVE MEMBERSHIPS TO THE REFUSAL OF THE ACTIVITY
TO PERMIT USE OF THE NEGOTIATED GRIEVANCE PROCEDURES.
A. RICHARD W. BURKE, PRESIDENT OF IAM LOCAL 2581 TESTIFIED THAT HE
FILED TWO GRIEVANCES ON OCTOBER 11 AND NOVEMBER 2, 1978 /2/ , THAT
RESPONDENT REFUSED TO PROCESS THEM, THAT THESE FACTS WERE COMMUNICATED
TO IAM MEMBERS WHO WERE "TICKED OFF" WHEN THEY HEARD ABOUT IT BECAUSE IT
MEANT TAXATION WITHOUT REPRESENTATION. BURKE TESTIFIED THAT "PROBABLY
ALL" HIS MEMBERS HEARD ABOUT THIS AND THAT SUPPORT FOR HIS LOCAL
"DWINDLED." BURKE'S OBVIOUSLY SELF-SERVING TESTIMONY STANDS
UNCONTRADICTED BUT ALSO UNCORROBORATED.
B. ALBERT TART, PRESIDENT OF NFFE LOCAL 284 TESTIFIED THAT HE WAS
STILL USING THE GRIEVANCE PROCEDURE OF AN EXPIRED CONTRACT /3/ UNTIL THE
SEPTEMBER 22 ANNOUNCEMENT BY THE ACTIVITY. THEREAFTER, HE UTILIZED THE
AGENCY GRIEVANCE PROCEDURE AND HIS MEMBERSHIP, LIKE THAT OF IAM, WAS
UNHAPPY BECAUSE THEY DID NOT LIKE THE AGENCY PROCEDURE AND WANTED TO BE
REPRESENTED BY THEIR UNION.
C. CHARLES FOX, PRESIDENT OF NFFE LOCAL 23 TESTIFIED THAT HIS
MEMBERSHIP WAS INFORMED THAT THE UNION COULD NOT REPRESENT THEM THROUGH
THE NEGOTIATED GRIEVANCE PROCEDURE AND THAT THE MEMBERS WERE UNHAPPY TO
BE PAYING DUES AND NOT RECEIVING ANY REPRESENTATION.
D. CHARLES FOX CREDIBLY TESTIFIED THAT THE INABILITY OF THE IAM TO
FILE GRIEVANCES WAS NOT AN ISSUE IN THE COMPAIGN. ON THE CONTRARY, ONE
OF THE IAM FLYERS DURING THE COMPAIGN PLACED SUBSTANTIAL EMPHASIS ON THE
FACT THAT IAM FILED A LARGE NUMBER OF GRIEVANCES, THUS ATTEMPTING TO
DEMONSTRATE THAT THEY WERE A MILITANT ORGANIZATION.
E. ALTHOUGH IAM PRESIDENT BURKE TESTIFIED THAT SOME MEMBERS RENEWED
THEIR DUES AUTHORIZATIONS HE STATED THAT HE DID NOT KNOW WHEN THIS
OCCURRED (TR. 36, 37.) THEREFORE, I ACCORD NO WEIGHT TO THIS VAGUE
TESTIMONY.
F. I ALSO CONCLUDE THAT THE EVIDENCE IS INSUFFICIENT TO ESTABLISH
THAT BARGAINING UNIT EMPLOYEES OTHER THAN THE UNION MEMBERS OF IAM OR
NFFE REFERRED TO ABOVE HAD ANY KNOWLEDGE ABOUT THE INABILITY OF THE IAM
OR NFFE TO PROCESS GRIEVANCES OR THE FACT THAT THE ACTIVITY HAD
UNILATERALLY TERMINATED THE IAM AGREEMENT.
CONTENTIONS OF THE PARTIES
THE COMPLAINANT CONTENDS THAT RESPONDENT VIOLATED SECTION 19(A)(1)
AND (5) OF THE ORDER BY "REFUSING TO ABIDE BY THE NEGOTIATED AGREEMENT
AND THE FURTHER REFUSAL TO PROCESS GRIEVANCES THEREUNDER." IT IS ALSO
ASSERTED THAT THE ACTIVITY SHOULD NOT HAVE WITHDRAWN ITS EXCLUSIVE
RECOGNITION OF THE IAM. THE ELECTION SHOULD BE SET ASIDE, IT CONTENDS
BECAUSE (1) THE ACTIVITY'S REFUSAL TO PROCESS GRIEVANCES, COUPLED WITH
(2) THE DEPARTMENT OF LABOR'S REFUSAL TO ISSUE A COMPLAINT, SHOWED THE
IAM TO BE A PASSIVE ORGANIZATION HAVING LITTLE CLOUT IN CONTRAST WITH
ITS PRIOR REPRESENTATION AS A MILITANT UNION.
NFFE AGREES WITH IAM THAT THE ACTIVITY VIOLATED THE ORDER BY
TERMINATING THE CONTRACT AT THE TIME THAT IT DID. NFFE ARGUES THAT WHEN
A QUESTION CONCERNING REPRESENTATION IS RAISED AN ELECTION ORDERED AS A
RESULT OF THAT QUESTION, THE DUTY TO HONOR THE EXISTING AGREEMENT
CONTINUES UNTIL THE ELECTION IS COMPLETED WITH A CERTIFICATION. NFFE
FURTHER CONTENDS, HOWEVER, THAT IN THIS PARTICULAR CASE THE VIOLATION
APPLIED EQUALLY TO IAM AND NFFE AND THEREFORE HAD NO DISCERNIBLE EFFECT
ON THE OUTCOME OF THE ELECTION. IN THIS REGARD, NFFE ARGUES THAT IAM
HAS NOT SUSTAINED ITS BURDEN OF PROVING ALL MATTERS ALLEGED IN ITS
OBJECTIONS BY A PREPONDERANCE OF THE EVIDENCE. NFFE ARGUES (1) THAT THE
UNFAIR LABOR PRACTICE HAD NO EFFECT ON THE ELECTION AND (2) THAT, IN ANY
EVENT, THE ACTIVITY'S CONDUCT WAS LIKE THE IMPOSITION OF A GENERAL RULE
(I.E. ALL UNIONS ARE PROHIBITED FROM USING NEGOTIATED GRIEVANCE
PROCEDURES), WHICH RULE WAS IMPOSED IN A NONDISCRIMINATORY FASHION.
THE RESPONDENT DEFENDS ITS ACTION BY RELYING ON THE ASSISTANT
SECRETARY'S DECISION ON THE RA PETITION WHICH HELD THAT THE FOUR
EXISTING UNITS WERE NO LONGER APPROPRIATE FOR EXCLUSIVE RECOGNITION.
THE RESPONDENT ASSERTS THAT SINCE THE LABOR ORGANIZATION DID NOT HAVE
EXCLUSIVE RECOGNITION FOR THE NEW UNIT, IT WAS NOT ENTITLED TO NEGOTIATE
OR TO HAVE A LABOR AGREEMENT. FURTHER, THE RESPONDENT ARGUES THAT UPON
TERMINATION OF BARGAINING UNITS BY THE ASSISTANT SECRETARY, THE EMPLOYER
WOULD BE IN VIOLATION OF THE ORDER IF IT INDEED PERMITTED OR ALLOWED
FORMER UNIONS OR BARGAINING UNITS IN ANY WAY TO HAVE A CONTINUANCE OF
ASSISTANCE. RATHER, THE RESPONDENT POINTS OUT THAT FROM AUGUST 23 UNTIL
THE RUNOFF ELECTION WAS HELD, ITS POLICY WAS TO TREAT ALL PARTIES ALIKE
AND NOT TO DISCRIMINATE OR SHOW PREFERENCE TO ONE UNION AT THE EXPENSE
OF ANOTHER.
DISCUSSION AND CONCLUSION OF LAW
1. THE WITHDRAWAL OF RECOGNITION
SECTION 19(A)(5) OF THE ORDER STATES THAT "AGENCY MANAGEMENT SHALL
NOT REFUSE TO ACCORD APPROPRIATE RECOGNITION TO A LABOR ORGANIZATION
QUALIFIED FOR SUCH RECOGNITION". MOREOVER, IT HAS BEEN HELD THAT "SO
LONG AS THE LABOR ORGANIZATION INVOLVED REMAINS QUALIFIED UNDER
PROVISIONS OF THE ORDER," IT IS ENTITLED TO CONTINUED RECOGNITION. /4/
IN MY OPINION, THE ASSISTANT SECRETARY'S DECISION OF AUGUST 23, 1978
EXTINGUISHED IAM'S ENTITLEMENT TO CONTINUED RECOGNITION.
IN HIS DECISION, THE ASSISTANT SECRETARY CONCLUDED THAT THE JUNE 6,
1977 REORGANIZATION (1) CREATED A NEW ORGANIZATIONAL ENTITY AND THUS (2)
RENDERED IAM'S EXCLUSIVE RECOGNIZED UNIT "INAPPROPRIATE FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION UNDER THE ORDER." IT IS WELL ESTABLISHED THAT
SUCH A DETERMINATION MEANS THAT AN AGENCY HAS NO OBLIGATION TO CONTINUE
TO RECOGNIZE A LABOR ORGANIZATION AS EXCLUSIVE REPRESENTATIVE. /5/
ACCORDINGLY, I CONCLUDE THAT RESPONDENT DID NOT VIOLATE SECTIONS
19(A)(1) AND (5) WHEN, IN RELIANCE ON THE ASSISTANT SECRETARY'S
DECISION, IT WITHDREW RECOGNITION FROM THE IAM. /6/
2. THE UNILATERAL TERMINATION OF THE NEGOTIATED AGREEMENT, INCLUDING
THE REFUSAL TO PROCESS GRIEVANCES THEREUNDER.
IT HAS BEEN PREVIOUSLY HELD THAT MATTERS RELATED TO AN ALLEGED
IMPROPER REFUSAL TO ACCORD APPROPRIATE RECOGNITION SUCH AS THE
TERMINATION OF A NEGOTIATED AGREEMENT (AS IN THIS CASE) AND THE
REVOCATION OF DUES WITHHOLDING ARE INSEPARABLE FROM THE THEORY OF
VIOLATION DISCUSSED WITH RESPECT TO A WITHDRAWAL OF RECOGNITION. /7/
ACCORDINGLY, SINCE I HAVE FOUND NO VIOLATION OF SECTIONS 19(A)(1) AND
(5) IN THE AGENCY'S WITHDRAWAL OF RECOGNITION, I ALSO FIND NO VIOLATION
OF SECTIONS 19(A)(1) AND (5) IN THE UNILATERAL TERMINATION OF THE
NEGOTIATED AGREEMENT AND THE REFUSAL TO PROCESS GRIEVANCES.
HOWEVER, IN VIEW OF THE ISSUES POSED BY THE REGIONAL DIRECTOR IN HIS
REPORT ON OBJECTIONS AS WELL AS NFFE'S ARGUMENT THAT RESPONDENT WAS
OBLIGED TO HONOR THE NEGOTIATED AGREEMENT UNTIL THE ELECTION WAS
CONDUCTED AND A CERTIFICATION ISSUED, I WILL DISCUSS THIS ISSUE IN THE
LIGHT OF ANOTHER LINE OF PRECEDENT DECISIONS. IT HAS BEEN HELD BY THE
ASSISTANT SECRETARY AS FOLLOWS:
"IN MY VIEW, ABSENT EVIDENCE . . . OF AN OVERRIDING EXIGENCY, WHICH
WOULD REQUIRE IMMEDIATE
CHANGES IN PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING ITS
EMPLOYEES' WORKING
CONDITIONS, DURING THE PENDENCY OF AN RA PETITION, THE PETITIONING
AGENCY HAS AN OBLIGATION TO
REMAIN NEUTRAL AND MAINTAIN THE STATUS QUO WITH RESPECT TO THE
PERSONNEL POLICIES AND PRACTICE
AND MATTERS AFFECTING WORKING CONDITIONS OF EMPLOYEES WHO ARE COVERED
BY ITS RA
PETITION." /8/ FURTHER, THE FEDERAL LABOR RELATIONS COUNCIL HAS
STATED THAT DURING A REORGANIZATION
"EXISTING RECOGNITION AGREEMENTS, AND DUES WITHHOLDING ARRANGEMENTS
SHOULD BE HONORED TO
THE MAXIMUM EXTENT POSSIBLE CONSISTENT WITH THE RIGHTS OF THE PARTIES
INVOLVED PENDING FINAL
DETERMINATION ON ISSUES RAISED BY REORGANIZATIONS" /9/
IN THE FOREGOING REPORT WHICH ACCOMPANIED EXECUTIVE ORDER 11838, THE
COUNCIL DECIDED TO ADOPT A CASE-BY-CASE APPROACH IN DETERMINING THE
STATUS OF NEGOTIATED AGREEMENTS DURING REORGANIZATIONS. ONE OF ITS
REASONS FOR REJECTING THE ADOPTION OF A FIXED SPECIAL POLICY WAS ITS
CONCERN THAT "THE SPECIAL POLICIES SUGGESTED WOULD NOT APPEAR TO BE
SUSCEPTIBLE TO EQUITABLE APPLICATION TO ALL SITUATIONS WHERE
REORGANIZATIONS RESULT IN CHANGES IN THE ASSIGNMENT OF PERSONNEL AND
AFFECT EXISTING BARGAINING RELATIONSHIPS." /10/
IN APPLYING THESE PRINCIPLES TO THE FACTS OF THIS CASE, I REACH THE
FOLLOWING CONCLUSIONS:
A. DURING THE PERIOD COMMENCING WITH THE FILING OF THE RA PETITION
AND ENDING WITH THE SEPTEMBER 22 MEETING WHICH FOLLOWED THE ASSISTANT
SECRETARY'S FINAL DETERMINATION /11/ THE RESPONDENT PROPERLY REMAINED
NEUTRAL AND PROPERLY MAINTAINED THE STATUS QUO. STATED DIFFERENTLY,
RESPONDENT HONORED ITS EXISTING RECOGNITION AND AGREEMENTS "TO THE
MAXIMUM EXTENT POSSIBLE." /12/ DURING THIS PERIOD THE QUESTION OF
REPRESENTATION PRIMARILY CONCERNED THE ISSUE OF "APPROPRIATE UNIT"
RESULTING FROM THE REORGANIZATION.
B. AS A RESULT OF THE ASSISTANT SECRETARY'S DIRECTION OF ELECTION,
AN ELECTION CAMPAIGN PERIOD COMMENCED DURING WHICH THE ACTIVITY HAD AN
OBLIGATION TO MAINTAIN STRICT NEUTRALITY AND AVOID DOING ANYTHING WHICH
WOULD MAKE ITSELF VULNERABLE TO A SECTION 19(A)(3) CHARGE OR UNLAWFUL
ASSISTANCE OR TO AN ALLEGATION THAT ITS CONDUCT INTERFERED WITH AN
ELECTION. /13/
MUCH HAS BEEN WRITTEN IN PRIVATE SECTOR CASES ABOUT AN EMPLOYER'S
DUTY TO MAINTAIN STRICT NEUTRALITY. /14/ THE PRESENT CASE PRESENTS AN
INTERESTING ISSUE AS TO WHETHER STRICT NEUTRALITY CAN BE DEMONSTRATED
BEST BY (1) MAINTAINING THE STATUS QUO AND CONTINUING TO PROCESS
GRIEVANCES, OR (2) CHANGING THE STATUS QUO BY REFUSING TO PROCESS
GRIEVANCES.
IN MY OPINION, THE OBLIGATION TO MAINTAIN STRICT NEUTRALITY IS NOT A
LAWFUL REASON - IN EVERY FACTUAL SITUATION - FOR AUTOMATICALLY
TERMINATING OR CEASING TO GIVE EFFECT TO AN EXISTING NEGOTIATED
AGREEMENT. THE LAWFULNESS OF SUCH ACTION BY AN ACTIVITY DEPENDS UPON
THE FACTS OF EACH CASE. HERE, I CONCLUDE THAT THE ORDER WAS NOT
VIOLATED BECAUSE THE ACTIVITY ACTED IN A MANNER CONSISTENT WITH THE
ASSISTANT SECRETARY'S DECISION. /15/ THUS, THE "FINAL DETERMINATION" OF
THE ASSISTANT SECRETARY TERMINATED THE ACTIVITY'S BARGAINING OBLIGATION
WHEN HE FOUND THAT THE REORGANIZATION RENDERED THE EXCLUSIVELY
RECOGNIZED UNITS INAPPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION.
ACCORDINGLY, I FIND AND CONCLUDE THAT THE ACTIVITY DID NOT VIOLATE
SECTION 19(A)(1) AND (5) OF THE ORDER BY TERMINATING THE CONTRACT AND
REFUSING TO PROCESS GRIEVANCES THEREUNDER.
3. THE OBJECTION TO THE RUNOFF ELECTION
SECTION 2422.20(H) OF THE APPLICABLE REGULATIONS SPECIFIES THAT "THE
PARTY FILING THE OBJECTIONS BY A PREPONDERANCE OF THE EVIDENCE." I HAVE
CAREFULLY CONSIDERED ALL THE EVIDENCE ADDUCED AT THE HEARING AND I
CONCLUDE THAT THE IAM, OBJECTING PARTY HEREIN, HAS NOT SUSTAINED ITS
BURDEN OF PROOF. IN MY OPINION, THERE IS INSUFFICIENT EVIDENCE TO
ESTABLISH THAT THE ACTIVITY'S CONDUCT - TERMINATION OF THE CONTRACT AND
REFUSAL TO PROCESS GRIEVANCES - MAY HAVE AFFECTED THE ELECTION RESULTS,
AND THUS BE THE BASIS FOR SETTING ASIDE SUCH ELECTION. IN ADDITION, I
HAVE CONCLUDED THAT THE ACTIVITY'S CONDUCT WAS PROPER AND DID NOT
CONSTITUTE AN UNFAIR LABOR PRACTICE. /16/
RECOMMENDATION
HAVING CONCLUDED THAT THE RESPONDENT DID NOT VIOLATE SECTIONS
19(A)(1) AND (5) OF THE ORDER, I RECOMMEND THAT THE COMPLAINT BE
DISMISSED.
HAVING CONCLUDED THAT THE RESPONDENT DID NOT ENGAGE IN CONDUCT WHICH
MAY HAVE AFFECTED THE RESULTS OF THE RUNOFF ELECTION, I RECOMMEND THAT
OBJECTION NO. 2 BE OVERRULED AND THAT A CERTIFICATION OF REPRESENTATIVE
BE ISSUED BY THE REGIONAL DIRECTOR.
FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
DATED: JANUARY 10, 1980
WASHINGTON, D.C.
SERVICE SHEET
CASE NOS. 32-05035 (RA) & 32-05681 (CA)
COPY OF RECOMMENDED DECISION AND ORDER
DATED JANUARY 10, 1980
"RECOMMENDED DECISION AND ORDER" ISSUED BY ADMINISTRATIVE LAW JUDGE
FRANCIS E. DOWD WAS SENT TO THE FOLLOWING PERSONS BY CERTIFIED MAIL:
LINDA LEE
JOSEPH DALLAS
SENIOR LABOR RELATIONS ADVISOR
NAVAL CIVILIAN PERSONNEL COMMAND
NORTHERN FIELD DIVISION, NAVY BASE
PHILADELPHIA, PA 19112
PETER PETRONE
SPECIAL REPRESENTATIVE
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS
35 GENESEE LANE
WILLINGBORO, NEW JERSEY 08046
BRUCE HEPPEN, ESQUIRE
1016 16TH STREET, N.W.
WASHINGTON, D.C. 20036
REGULAR MAIL:
MR. JAMES M. PEIRCE, PRESIDENT
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1016 16TH STREET, N.W.
WASHINGTON, D.C. 20036
MR. WILLIAM W. WINPISINGER, PRESIDENT
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, AFL-CIO
1300 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20036
ASSISTANT DIRECTOR
LABOR-MANAGEMENT RELATIONS
U.S. OFFICE OF PERSONNEL MANAGEMENT
1900 E STREET, N.W.
WASHINGTON, D.C. 20415
FEDERAL LABOR RELATIONS AUTHORITY
1900 E STREET, N.W., ROOM 7469
WASHINGTON, D.C. 20424
ONE COPY TO EACH REGIONAL DIRECTOR
OFFICE OF THE GENERAL COUNSEL
FEDERAL LABOR RELATIONS AUTHORITY
1900 E STREET, N.W., ROOM 7469
WASHINGTON, .D.C. 20424
/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/ SINCE BOTH GRIEVANCES WERE FILED AFTER THE DATE OF THE CHARGE
(SEPTEMBER 22, 1978), AND NOTING THAT THE SECOND GRIEVANCE WAS NOT FILED
UNTIL THE DAY AFTER THE COMPLAINT WAS FILED (NOVEMBER 1, 1978), IT SEEMS
CLEAR THAT THE CHARGE AND COMPLAINT ARE BASED PRIMARILY ON THE
UNILATERAL TERMINATION OF THE CONTRACT.
/3/ LOCAL 284'S CONTRACT EXPIRED IN MAY 1978 BUT, ACCORDING TO TART,
IT WAS BEING "HELD IN ABEYANCE" DURING THE PERIOD OF REORGANIZATION AND
WAS SUPPOSED "TO BE KEPT IN EFFECT UNTIL THE DEPARTMENT OF LABOR'S
DECISION ON THE RA PETITION."
/4/ DEFENSE SUPPLY AGENCY, DEFENSE PROPERTY DISPOSAL OFFICE, ABERDEEN
PROVING GROUND, ABERDEEN, MARYLAND, 4 A/SLMR 163, AT P. 167, 6 A/SLMR
104, A/SLMR NO. 360.
/5/ DEFENSE LOGISTICS AGENCY, 7 A/SLMR 980, A/SLMR NO. 932, DEFENSE
CONTRACT AUDIT AGENCY, 6 A/SLMR 251, A/SLMR NO. 657; U.S. DEPARTMENT OF
TRANSPORTATION, 5 A/SLMR 92, A/SLMR NO. 482; IDAHO PANHANDLE NATIONAL
FORESTS, 4 A/SLMR 351, A/SLMR NO. 394.
/6/ CF. ARMY AND AIR FORCE EXCHANGE SERVICE, SOUTH TEXAS AREA
EXCHANGE, LACKLAND AIR FORCE BASE, TEXAS, 6 A/SLMR 316, A/SLMR NO. 669;
UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF THE NAVY, NAVAL AIR
RESERVE TRAINING UNIT, MEMPHIS, TENNESSEE, 1 A/SLMR 490, A/SLMR NO. 106,
A CASE WHERE THE UNIT REMAINED APPROPRIATE AFTER THE RECOGNITION, THERE
WAS NO EVIDENCE OF LOSS OF MAJORITY STATUS, AND THE AGENCY DID NOT FILE
A REPRESENTATION PETITION.
/7/ IBID.
/8/ DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, YUMA PROJECTS
OFFICE, YUMA, ARIZONA, 4 A/SLMR 407, A/SLMR NO. 401.
/9/ REPORT AND RECOMMENDATIONS OF THE FEDERAL LABOR RELATIONS COUNCIL
ON THE AMENDMENT OF EXECUTIVE ORDER 11491, AS AMENDED, FEBRUARY 6, 1975.
/10/ AS PREVIOUSLY NOTED, THE ASSISTANT SECRETARY FOUND THAT "UNIT
EMPLOYEES INVOLVED WERE PHYSICALLY AND/OR ADMINISTRATIVELY TRANSFERRED
TO THE VARIOUS DIVISIONS WITHIN THE ACTIVITY WHERE THEY WERE COMMINGLED
WITH OTHER EMPLOYEES OF THE ACTIVITY." MOREOVER, THE "DISAPPEARANCE" OF
THE PREVIOUSLY RECOGNIZED UNITS RESULTED IN A TERMINATION OF THE
EXISTING BARGAINING RELATIONSHIPS.
/11/ APPARENTLY NO APPEAL TO THE COUNCIL WAS FILED AND, THEREFORE,
THE ASSISTANT SECRETARY'S DECISION WAS INDEED A "FINAL DETERMINATION." I
MAKE NO FINDING ON WHAT THE SITUATION WOULD HAVE BEEN IF AN APPEAL HAD
BEEN FILED.
/12/ FOR A DISCUSSION OF THE PHRASE "TO THE MAXIMUM EXTENT POSSIBLE"
SEE JUDGE WILLIAM DEVANEY'S DECISION IN DEPARTMENT OF ENERGY, CASE NO.
22-0-034(CA), MAY 1, 1979, PRESENTLY ON APPEAL TO THE AUTHORITY.
/13/ THE OBLIGATION TO MAINTAIN STRICT NEUTRALITY WOULD BE EVEN MORE
OBVIOUS IF A RIVAL "OUTSIDE" UNION WERE SEEKING TO REPRESENT THE
EMPLOYEES IN THE NEWLY ESTABLISHED APPROPRIATE UNIT FOR THEN THE
ACTIVITY WOULD HAVE TO BE PARTICULARLY CAREFUL NOT TO DO ANYTHING WHICH
REASONABLY COULD BE INTERPRETED AS FAVORING OR GIVING ADVANTAGE TO AN
INCUMBENT "INSIDE" UNION.
/14/ SOUTHERN CONFERENCE OF TEAMSTERS V. RED BALL MOTOR TREEGUT,
INC., 374 F.2D 932 (AND CASES CITED THEREIN). SEE ALSO ST. LOUIS
INDEPENDENT PACKING COMPANY V. N.L.R.B., 291 F.2D 700(1961); SHEA
CHEMICAL CORPORATION, 121 NLRB 1027(1958).
/15/ THE COMPLAINT ALLEGES THAT RESPONDENT'S DECISION AND ACTION WAS
BASED UPON ADVICE RECEIVED FROM THE SENIOR COMPLIANCE OFFICER, NEWARK
OFFICE, A/SLMR. SUCH ADVICE, IF GIVEN, WOULD AT BEST BE THE OPINION OF
AN INDIVIDUAL EMPLOYEE; IT WOULD NOT BE BINDING ON THE ASSISTANT
SECRETARY AT THAT TIME OR ON THE AUTHORITY NOW; AND IT WOULD NOT BE A
VALID DEFENSE IF ASSERTED BY THE RESPONDENT.
/16/ IN THESE CIRCUMSTANCES, I FIND IT UNNECESSARY TO DISCUSS NFEE'S
ARGUMENT THAT EVEN IF THE ACTIVITY VIOLATED SECTION 19(A)(1) AND (5),
THE ELECTION WOULD NOT HAVE TO BE SET ASIDE IF IT CAN BE SHOWN THAT "THE
VIOLATION APPLIED EQUALLY TO IAM AND NFEE AND THEREFORE HAD NO
DISCERNIBLE EFFECT ON THE OUTCOME OF THE ELECTION."