[ v06 p18 ]
06:0018(9)CA
The decision of the Authority follows:
6 FLRA No. 9
U.S. NUCLEAR REGULATORY COMMISSION
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 3-CA-263
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION AND ORDER
IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT
ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND
RECOMMENDING THAT THE COMPLAINT BE DISMISSED. THEREAFTER, BOTH THE
CHARGING PARTY AND THE GENERAL COUNSEL FILED EXCEPTIONS TO THE
ADMINISTRATIVE LAW JUDGE'S DECISION AND ORDER, AND THE RESPONDENT FILED
AN OPPOSITION TO SUCH EXCEPTIONS AND A CROSS-EXCEPTION. /1/
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND ORDER AND THE ENTIRE RECORD, THE AUTHORITY HEREBY
ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS.
THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1)
AND (5) OF THE STATUTE BY UNILATERALLY CHANGING A PAST PRACTICE OF
ALLOWING THE NATIONAL TREASURY EMPLOYEES UNION (NTEU), THE CHARGING
PARTY HEREIN, UNRESTRICTED USE OF BULLETIN BOARDS. THE SPECIFIC ACTION
GIVING RISE TO THE COMPLAINT WAS THE RESPONDENT'S REMOVAL OF AN NTEU
POSTED ITEM FROM BULLETIN BOARDS WITHOUT FIRST BARGAINING WITH NTEU
ABOUT THE REMOVAL.
THE FACTS CAN BE BRIEFLY STATED. CERTAIN OF RESPONDENT'S EMPLOYEES
WERE REPRESENTED BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(AFGE), AND THE NEGOTIATED AGREEMENT GAVE AFGE THE RIGHT TO USE BULLETIN
BOARDS EXCEPT FOR THE POSTING OF ANY MATERIAL "WHICH REFLECTS ADVERSELY
ON INDIVIDUALS, ORGANIZATIONS OR ACTIVITIES OF THE FEDERAL GOVERNMENT."
THE NTEU SUBSEQUENTLY CHALLENGED AFGE'S STATUS AS THE NEGOTIATING
REPRESENTATIVE BY FILING A TIMELY PETITION WITH THE AUTHORITY. DURING
THE PRE-ELECTION PERIOD (MAY 2, 1978 TO JUNE 6, 1978), NTEU WAS ALLOWED
TO USE THE BULLETIN BOARDS TO THE SAME EXTENT AS AFGE.
ON NOVEMBER 17, 1978, NTEU WAS CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE AND THEREAFTER THE NEGOTIATED AGREEMENT BETWEEN
RESPONDENT AND AFGE TERMINATED. AS OF THE DATE OF THE HEARING HEREIN,
RESPONDENT AND NTEU HAD NOT NEGOTIATED A NEW AGREEMENT. FROM MAY 2,
1978 TO APRIL 25, 1979, NTEU UTILIZED THE BULLETIN BOARDS WITHOUT
INCIDENT. HOWEVER, ON MARY 25, 1979, RESPONDENT REMOVED MATERIAL POSTED
BY NTEU, CITING THE RESTRICTION NOTED ABOVE WHICH HAD BEEN CONTAINED IN
THE NEGOTIATED AGREEMENT BETWEEN RESPONDENT AND AFGE. IT WAS THIS
ACTION WHICH RESULTED IN THE FILING OF THE CHARGE AND THE ISSUANCE OF
THE COMPLAINT.
THE JUDGE CONCLUDED THAT RESPONDENT DID NOT VIOLATE SECTION
7116(A)(1) AND (5) OF THE STATUTE BY UNILATERALLY CHANGING THE ALLEGED
PAST PRACTICE OF ALLOWING NTEU UNRESTRICTED USE OF BULLETIN BOARDS. IN
ESSENCE, HE FOUND THAT THE TERMS OF THE NEGOTIATED AGREEMENT BETWEEN
RESPONDENT AND AFGE ESTABLISHED A CONDITION OF EMPLOYMENT WHICH,
FOLLOWING THE CERTIFICATION OF NTEU, CONTINUED AS AN ESTABLISHED
PRACTICE. HE FOUND FURTHER THAT AT NO TIME DID RESPONDENT EITHER MODIFY
OR WAIVE THE NEGOTIATED RESTRICTION ON THE RIGHT TO USE BULLETIN BOARDS.
IN AGREEMENT WITH THE JUDGE'S FINDINGS AND CONCLUSION, THE AUTHORITY
HOLDS THAT THE CLAUSE RELATING TO BULLETIN BOARDS IN THE EXPIRED
AGREEMENT CREATED A CONDITION OF EMPLOYMENT WHICH REMAINS BINDING IN ITS
ENTIRETY DESPITE THE AGREEMENT'S EXPIRATION AND THE CHANGE OF EXCLUSIVE
REPRESENTATIVE. IN THE AUTHORITY'S OPINION, THE PURPOSES AND POLICIES
OF THE STATUTE ARE BEST EFFECTUATED BY A REQUIREMENT THAT EXISTING
PERSONNEL POLICIES, PRACTICES, AND MATTERS AFFECTING WORKING CONDITIONS
CONTINUE, TO THE MAXIMUM EXTENT POSSIBLE, UPON THE EXPIRATION OF A
NEGOTIATED AGREEMENT, ABSENT AN EXPRESS AGREEMENT TO THE CONTRARY OR
UNLESS MODIFIED IN A MANNER CONSISTENT WITH THE STATUTE. SUCH A RESULT
FOSTERS STABILITY IN FEDERAL LABOR-MANAGEMENT RELATIONS, WHICH IS AN
UNDERLYING PURPOSE OF THE STATUTE. SEE DEPARTMENT OF DEFENSE,
DEPARTMENT OF THE NAVY, NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY, 4
FLRA NO. 100(1980); AND DEPARTMENT OF THE AIR FORCE, 35TH COMBAT
SUPPORT GROUP (TAC), GEORGE AIR FORCE BASE, CALIFORNIA, 4 FLRA NO.
5(1980). WE SEE NO DISTINCTION IN THE CIRCUMSTANCES OF THIS CASE WHERE
THERE HAS BEEN A CHANGE IN THE EXCLUSIVE REPRESENTATIVE SINCE THE
EXPIRATION OF THE AGREEMENT. THE STABILITY OF THE NEW BARGAINING
RELATIONSHIP IS ENHANCED BY A REQUIRED MAINTENANCE OF EXISTING PERSONNEL
POLICIES AND PRACTICES, AND MATTERS AFFECTING WORKING CONDITIONS PENDING
THE NEGOTIATION OF A NEW AGREEMENT.
FURTHER, IN AGREEMENT WITH THE JUDGE, THE AUTHORITY FINDS THAT THE
RESPONDENT HAS NOT WAIVED THE NEGOTIATED RESTRICTIONS UPON BULLETIN
BOARD USAGE. IN THIS REGARD IT IS NOTED PARTICULARLY THAT THE GENERAL
COUNSEL FAILED TO SHOW THAT ANY MANAGER AT ANY RELEVANT TIME SAW OR
RECEIVED COPIES OF DOCUMENTS KNOWN TO HAVE BEEN POSTED ON NTEU BULLETIN
BOARD SPACE WHICH CONTAINED LANGUAGE FALLING WITHIN THE RESTRICTIVE
PROVISIONS OF THE ESTABLISHED PRACTICE. FINALLY, IT IS THE AUTHORITY'S
VIEW THAT ANY TERMS OF A PRE-ELECTION CONSENT AGREEMENT ARE FOR THE
LIMITED PURPOSE OF REGULATING THE CONDUCT OF THE PARTIES IN THE ELECTION
PROCESS AND DO NOT ESTABLISH CONDITIONS OF EMPLOYMENT FOR BARGAINING
UNIT EMPLOYEES WHICH CONTINUE FOLLOWING THE ELECTION. THEREFORE, THE
AUTHORITY FINDS IT UNNECESSARY TO DETERMINE WHETHER THE CONSENT
AGREEMENT WAS AT VARIANCE WITH THE CONTRACTUALLY ESTABLISHED CONDITIONS
REGARDING USE OF BULLETIN BOARDS. ACCORDINGLY, THE COMPLAINT HEREIN
SHALL BE DISMISSED.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 3-CA-263 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., JUNE 3, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ DECISION FOLLOWS --------------------
LEE MINGLEDORFF, ESQUIRE
FOR THE GENERAL COUNSEL
BARBARA J. COLLINS, ESQUIRE
FOR THE CHARGING PARTY
DENNIS C. DAMBLY, ESQUIRE
BRUCE A. BERSON, ESQUIRE
FOR THE RESPONDENT
BEFORE: LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS CASE AROSE AS AN UNFAIR LABOR PRACTICE PROCEEDING UNDER THE
PROVISIONS OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 92
STAT. 1191, 5 U.S.C. 7101 ET SEQ., (HEREINAFTER CALLED "THE STATUTE")
AND THE RULES AND REGULATIONS ISSUED THEREUNDER.
ON DECEMBER 27, 1979, A COMPLAINT WAS ISSUED AND SERVED BY THE
REGIONAL DIRECTOR, REGION III, FEDERAL LABOR RELATIONS AUTHORITY,
WASHINGTON, D.C., AGAINST THE UNITED STATES NUCLEAR REGULATORY
COMMISSION (HEREINAFTER CALLED "NRC," "RESPONDENT" OR "MANAGEMENT") ON
BEHALF OF THE NATIONAL TREASURY EMPLOYEES UNION (HEREINAFTER CALLED
"NTEU" OR "UNION").
THE COMPLAINT SETS FORTH ALLEGATIONS THAT ON OR ABOUT APRIL 25, 1979,
AND THEREAFTER, THE RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (5) OF
THE STATUTE, BY FAILING AND REFUSING TO BARGAIN IN GOOD FAITH WITH THE
NTEU, AND BY UNILATERALLY CHANGING EXISTING CONDITIONS OF EMPLOYMENT AND
PAST PRACTICE RELATING TO THE NTEU'S USE OF BULLETIN BOARD SPACE MADE
AVAILABLE TO THE NTEU BY THE RESPONDENT. SPECIFIC CONDUCT ALLEGED TO
HAVE GIVEN RISE TO THESE VIOLATIONS RELATED TO THE RESPONDENT'S REMOVAL
OF A COPY OF A NEWSPAPER ARTICLE FROM A NTEU BULLETIN BOARD ON APRIL 25,
1979, WITHOUT FIRST FURNISHING THE NTEU WITH NOTICE, AND WITHOUT
PROVIDING AN OPPORTUNITY TO BARGAIN CONCERNING RESPONDENT'S DECISION TO
EXERCISE CENSORSHIP OF NTEU'S USE OF BULLETIN BOARD SPACE.
COUNSEL FOR THE GENERAL COUNSEL CONTENDED THAT THE ACT OF REMOVING
THE NTEU POSTING CONTRAVENED A MAY 2, 1978 AGREEMENT WHEREIN THE
RESPONDENT PROMISED TO GIVE NTEU UNRESTRICTED USE OF BULLETIN BOARDS IN
CONNECTION WITH A SCHEDULED JUNE 6, 1978 ELECTION CAMPAIGN PRECIPITATED
BY A REPRESENTATION PETITION FILED BY NTEU TO CONTEST A PREDECESSOR
UNION'S STATUS AS EXCLUSIVE BARGAINING REPRESENTATIVE; THAT THE
RESPONDENT AND NTEU, THROUGH A COURSE OF CONDUCT FROM MAY 2, 1978 TO
APRIL 25, 1979, DEVELOPED A PAST PRACTICE OF PERMITTING THE UNRESTRICTED
USE OF BULLETIN BOARD SPACE, AND THAT REMOVAL OF THE POSTING ON APRIL
25, 1979, VIOLATED SUCH PAST PRACTICE; /2/ THAT RESPONDENT'S ACTION
CONSTITUTED A UNILATERAL CLARIFICATION OF WHAT PREVIOUSLY HAD BEEN AN
AMBIGUOUS, IRREGULARLY ENFORCED POLICY; AND LASTLY, THAT THE ACT OF
REMOVING THE POSTING, WITHOUT RESORTING TO A DISPUTE RESOLUTION
PROCEDURE IN AN EXPIRED COLLECTIVE BARGAINING AGREEMENT CONSTITUTED
UNILATERAL IMPOSITION OF A NEW TERM AND CONDITION OF EMPLOYMENT.
COUNSEL REPRESENTING THE RESPONDENT ARGUED THAT THE GENERAL COUNSEL
FAILED TO SUSTAIN THE BURDEN OF PROVING, BY A PREPONDERANCE OF THE
EVIDENCE AS REQUIRED BY SECTION 7118(A)(7) OF THE STATUTE AND SECTION
2423.18 OF THE REGULATIONS, 5 C.F.R. 2423.18, THAT THE RESPONDENT
COMMITTED UNFAIR LABOR PRACTICES AS ALLEGED IN THE COMPLAINT; THAT
PRIOR TO REMOVAL OF THE POSTING THE PARTIES DID NOT ENTER INTO AN
AGREEMENT WHEREBY THE NTEU WOULD BE ENTITLED TO UNRESTRICTED USE OF
CERTAIN BULLETIN BOARDS; THAT A PAST PRACTICE OF ALLOWING UNRESTRICTED
USE OF BULLETIN BOARDS BY NTEU DID NOT IN FACT EXIST; THAT THE REMOVAL
OF THE POSTING WAS IN ACCORDANCE WITH RESTRICTIVE PROVISIONS CONTAINED
IN A COLLECTIVE BARGAINING AGREEMENT THAT GOVERNED THE LABOR RELATIONS
OF THE RESPONDENT AND NTEU; AND THAT THE RESPONDENT DID NOT, AT ANY
TIME, WAIVE THE RESTRICTIVE PROVISIONS CONTAINED IN THE COLLECTIVE
BARGAINING AGREEMENT.
FINDINGS OF FACT
STIPULATED FACTS
THE FOLLOWING FACTS STIPULATED BY THE PARTIES, AND SUPPORTED BY THE
RECORD, ARE ACCEPTED AS TRUE:
1. THAT IN DECEMBER OF 1977, THE NTEU FILED A REPRESENTATION
PETITION TO CONTEST THE
STATUS OF LOCAL 2195, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
(AFGE), AS THE EXCLUSIVE
REPRESENTATIVE OF ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF
THE HEADQUARTERS, UNITED
STATES NUCLEAR REGULATORY COMMISSION WHOSE REGULAR DUTY STATION IS
LOCATED IN THE BETHESDA,
MARYLAND-WASHINGTON, D.C. METROPOLITAN AREA, EXCLUDING ALL
SUPERVISORS, MANAGEMENT OFFICIALS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, GUARDS,
CONFIDENTIAL EMPLOYEES, AND TEMPORARY EMPLOYEES ON APPOINTMENTS NOT
TO EXCEED 90 DAYS AND WITH
NO REASONABLE EXPECTANCY OF CONTINUOUS EMPLOYMENT; AND THAT THE
PROCEEDING CULMINATED IN
NTEU'S CERTIFICATION AS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF
THE UNIT DESCRIBED.
2. THAT ON JUNE 6, 1978, A REPRESENTATION ELECTION WAS HELD UNDER
THE SUPERVISION OF THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS, AND THE
NTEU RECEIVED A MAJORITY
VOTE.
3. THAT ON OR ABOUT NOVEMBER 17, 1978, THE NTEU WAS CERTIFIED AS THE
EXCLUSIVE BARGAINING
REPRESENTATIVE OF THE UNIT DESCRIBED. /3/
4. THAT THE RESPONDENT HAS, SINCE CERTIFICATION, RECOGNIZED NTEU AS
THE EXCLUSIVE
REPRESENTATIVE OF THE EMPLOYEES IN THE UNIT REFERRED TO, AND THAT THE
UNIT IS APPROPRIATE FOR
COLLECTIVE BARGAINING PURPOSES.
5. THAT AS OF JANUARY 30 AND 31, 1980, THE DATES ON WHICH HEARING
OCCURRED, THE PARTIES
WERE ENGAGED IN NEGOTIATIONS FOR THE PURPOSE OF REACHING A COLLECTIVE
BARGAINING AGREEMENT.
6. THAT AT ALL TIMES MATERIAL, MR. N. E. BENTSON OCCUPIED THE
POSITION OF CHIEF, LABOR
MANAGEMENT AND EMPLOYEE RELATIONS BRANCH, UNITED STATES NUCLEAR
REGULATORY COMMISSION, AND WAS
A SUPERVISOR OR MANAGEMENT OFFICIAL WITHIN THE MEANING OF SECTION
7103(A)(10) AND (11) OF THE
STATUTE; AND WAS AN AGENT OF THE RESPONDENT AT ITS BETHESDA,
MARYLAND LOCATION.
7. THAT ON APRIL 25, 1979, MR. BENTSON RECEIVED A TELEPHONE CALL
FROM A MANAGEMENT
OFFICIAL OF THE RESPONDENT WHO OBJECTED TO A NEWSPAPER ARTICLE
REPRODUCED ON NTEU LETTERHEAD,
AND POSTED BY THE NTEU ON NTEU BULLETIN BOARD SPACE LOCATED ON THE
FOURTH FLOOR OF THE
RESPONDENT'S EAST-WEST TOWERS BUILDING.
8. THAT ON APRIL 25, 1979, AFTER REVIEWING A COPY OF THE THE
ARTICLE, MR. BENTSON
INSTRUCTED THE MANAGEMENT OFFICIAL TO REMOVE THE MENTIONED ARTICLE
FROM THE BULLETIN BOARD.
COLLECTIVE BARGAINING AGREEMENT
THE RECORD DISCLOSED THAT REMOVAL OF THE ARTICLE BY A REPRESENTATIVE
OF THE RESPONDENT WAS PREDICATED UPON POLICY EXPRESSED IN THE PROVISIONS
OF AN EXPIRED COLLECTIVE BARGAINING AGREEMENT ENTERED INTO BY THE
RESPONDENT AND AFGE LOCAL 2195 IN MARCH OF 1977 (JOINT EXHIBIT 3). /4/
PART VI, ARTICLE F, SECTION 4 OF THE AGREEMENT PROVIDED THE FOLLOWING
WITH RESPECT TO THE USE OF BULLETIN BOARDS:
SECTION 4. A SPACE NOT LESS THAN 18 INCHES BY 18 INCHES (18" X 18")
WILL BE PROVIDED FOR
UNION USE ON GENERAL PURPOSE BULLETIN BOARDS, WHICH ARE CONTROLLED BY
(SIC) ADMINISTRATIVE
OPERATIONS DIVISION. THESE BOARDS ARE TO BE LOCATED IN AREAS
DESIGNATED BY MANAGEMENT. THE
UNION IS RESPONSIBLE FOR ALL MATERIAL IT POSTS IN THE DESIGNATED
SPACE ON THE BOARDS AND FOR
MAINTAINING THE SPACE IN AN ORDERLY CONDITION. LITERATURE POSTED
SHALL NOT CONTAIN ITEMS
RELATED TO PARTISAN POLITICAL MATTERS OR INFORMATION WHICH REFLECTS
ADVERSELY ON INDIVIDUALS,
ORGANIZATIONS, OR ACTIVITIES OF THE FEDERAL GOVERNMENT. POSTING AND
MAINTENANCE OF UNION
POSTED MATERIAL WILL BE PERFORMED DURING NON-DUTY HOURS ONLY.
MR. BENTSON RELIED UPON THE UNDERLINED LANGUAGE QUOTED AS A BASIS FOR
REMONSTRATING THAT THE ARTICLE WAS "OBJECTIONABLE BECAUSE IT STATES THAT
THE NRC LIES" (TR. 48, 49-50, JOINT EXHIBIT 2). /5/
AS NOTED THE NTEU FILED A REPRESENTATION PETITION IN DECEMBER OF
1977. AN NTEU ORGANIZING CAMPAIGN WAS COMMENCED THEREAFTER TO MARSHAL
THE NECESSARY SHOWING OF INTEREST TO UTILIZE AS A BASIS FOR A
REPRESENTATION ELECTION. FOLLOWING NTEU'S SUCCESS IN THE REPRESENTATION
ELECTION, THE RESULTS OF THE ELECTION WERE CHALLENGED BY AFGE LOCAL
2195. ON NOVEMBER 17, 1978, THE ASSISTANT SECRETARY OF LABOR FOR LABOR
MANAGEMENT RELATIONS CERTIFIED THE NTEU AS THE EXCLUSIVE BARGAINING
REPRESENTATIVE. DURING THE PERIOD PRIOR TO CERTIFICATION, LOCAL 2195
CONTINUED IN THE ROLE OF EXCLUSIVE REPRESENTATIVE.
ALTHOUGH NOT AUTHORIZED TO REPRESENT NRC EMPLOYEES, NTEU
REPRESENTATIVES DID PROVIDE INFORMATION AND GUIDANCE DURING THE PERIOD
INTERVENING BETWEEN THE REPRESENTATION ELECTION AND NTEU CERTIFICATION
(TR. 105, 120). /6/
MAY 2, 1978 MEETING
THE RECORD DISCLOSED THAT A DEPARTMENT OF LABOR REPRESENTATIVE WAS
ASSIGNED TO CONDUCT THE REPRESENTATION ELECTION, AND THAT ON MAY 2,
1978, THE REPRESENTATIVE CONVENED A MEETING ATTENDED BY INDIVIDUALS
REPRESENTING NTEU, AFGE, AND THE RESPONDENT. THE MEETING WAS SCHEDULED
FOR THE PURPOSE OF REACHING A CONSENT ELECTION AGREEMENT PRESCRIBING THE
GROUND RULES FOR THE ELECTION CAMPAIGN, AND TO DETERMINE HOW THE
ELECTION WOULD BE CONDUCTED. THE REPRESENTATIVE DISCUSSED THE
RESPONSIBILITY OF THE NRC WITH RESPECT TO THE STATUS OF NTEU, DEFINED
THE TERM "EQUIVALENT STATUS," STRESSED THAT NTEU HAD "EQUIVALENT STATUS"
WITH AFGE, AND NOTED THAT WITH RESPECT TO ACCESS TO EMPLOYEES IN THE
BARGAINING UNIT, NTEU WAS ENTITLED TO THE SAME PRIVILEGES THAT AFGE WAS
THEN ENJOYING (TR. 274-276, 307, 317-318, 332-334). THE NRC AGREED TO
PROVIDE NTEU WITH THE RIGHTS AND PRIVILEGES THEN ENJOYED BY AFGE (TR.
307). SPECIFIC REFERENCE WAS MADE TO THE COLLECTIVE BARGAINING
AGREEMENT (TR. 333).
A KEY NTEU REPRESENTATIVE IN ATTENDANCE AT THE MEETING ACKNOWLEDGED
THAT "EQUIVALENT STATUS" WAS DISCUSSED AND AGREED TO, AND FURTHER THAT
NTEU REQUESTED NRC TO PROVIDE EQUIVALENT BULLETIN BOARD SPACE (TR. 99,
109). IT WAS ESTABLISHED THAT THE DEPARTMENT OF LABOR REPRESENTATIVE
STATED THAT, "IF YOU'RE GIVING AFGE CERTAIN TREATMENT ON THE BULLETIN
BOARDS, NTEU HAS TO BE GIVEN THE SAME THING." THE NRC AGREED TO DO SO
(TR. 276, 307).
COUNSEL FOR THE GENERAL COUNSEL RELIES HEAVILY UPON AN ALLEGED
AGREEMENT REACHED BY NTEU, AFGE AND NRC IMMEDIATELY AFTER THE MAY 2,
1978 MEETING OUTLINED. IT WAS CLAIMED THAT ACCESS TO BARGAINING UNIT
EMPLOYEES WAS THEN DISCUSSED OUT OF THE PRESENCE OF THE DEPARTMENT OF
LABOR REPRESENTATIVE, AND THAT NTEU INFORMALLY REQUESTED ACCESS TO NRC
BULLETIN BOARDS, THE NRC INTERNAL MAIL SYSTEM, AND PUBLIC AREAS TO
DISTRIBUTE LITERATURE (TR. 57-58, 108). IT WAS FURTHER ASSERTED THAT
THE NRC DID AGREE TO GIVE ACCESS TO BULLETIN BOARDS, BUT DID NOT IMPOSE
ANY RESTRICTIONS ON THE NATURE OF NTEU'S POSTINGS (TR. 58-59); THAT AT
THE SECOND MEETING THERE WAS NO DISCUSSION OF THE CONTENT OF BULLETIN
BOARD POSTINGS (TR. 59), AND NO REFERENCE TO THE AFGE-NRC COLLECTIVE
BARGAINING AGREEMENT (TR. 107-108).
WITNESSES REPRESENTING THE RESPONDENT EITHER TAKE THE POSITION THAT
THERE WAS BUT ONE MEETING ON MAY 2, 1978, THE ONE CONVENED BY THE
DEPARTMENT OF LABOR, AND ATTENDED BY REPRESENTATIVES OF THE DEPARTMENT
OF LABOR, RESPONDENT, AFGE AND NTEU (TR. 332); OR THAT REPRESENTATIVES
OF THE RESPONDENT, AFGE AND NTEU MERELY CHATTED FOR A PERIOD AFTER
TERMINATION OF THE MEETING CONVENED BY THE DEPARTMENT OF LABOR (TR.
276). A CAREFUL REVIEW OF THE RECORD DISCLOSES THAT WHETHER THERE WAS A
SECOND MEETING OR NOT, THERE WAS NO REPUDIATION OR CHANGE IN
ARRANGEMENTS AND POLICY ESTABLISHED DURING THE COURSE OF THE MEETING
CONVENED BY THE DEPARTMENT OF LABOR. /7/ ON THE CONTRARY, THE RECORD
ESTABLISHES THAT THE USE OF NRC FACILITIES OF NTEU WOULD BE GRANTED TO
THE EXTENT THAT AFGE THEN ENJOYED SUCH USE UNDER THE TERMS OF THE
COLLECTIVE BARGAINING AGREEMENT. THE GENERAL TERMS OF THE AGREEMENT
WERE SUMMARIZED IN A LETTER ADDRESSED TO NTEU BY NRC (GENERAL COUNSEL
EXHIBIT 4). THE LATTER EXHIBIT, A LETTER CONFIRMING DETAILS OF THE
"CONSENT MEETING ON MAY 2, 1978," /8/ LISTS THE LOCATION OF BULLETIN
BOARD SPACE TO BE MADE AVAILABLE TO NTEU. IT INCLUDES THE FOLLOWING
PARAGRAPH:
AS OF MAY 2, 1978, EACH NRC BULLETIN BOARD WILL PROVIDE A SPACE
APPROXIMATELY 18" X 18" FOR
NTEU USE. NTEU WILL BE RESPONSIBLE FOR ALL MATERIAL POSTED IN THE
DESIGNATED SPACE AND FOR
MAINTAINING THE SPACE IN AN ORDERLY CONDITION. SCHEDULING OF NRC
MEETING ROOMS SHOULD BE DONE
THROUGH THIS OFFICE AND RESERVATIONS WILL BE ACCEPTED ON AN
AVAILABILITY BASIS.
THE PARAGRAPH QUOTED TRACKS PERTINENT PORTIONS OF THE COLLECTIVE
BARGAINING AGREEMENT IN SUBSTANCE, AND CLEARLY INDICATES THE IMPOSITION
OF NTEU RESPONSIBILITY FOR POSTINGS. INSTEAD OF SUGGESTING AUTHORITY TO
USE BULLETIN BOARDS WITHOUT RESTRICTIONS, THE LETTER, INSOFAR AS IT
REFERS TO NTEU RESPONSIBILITY, SUGGESTS AN ALLUSION TO THE RESTRICTIVE
PROVISIONS REFLECTED IN THE COLLECTIVE BARGAINING AGREEMENT. THE LETTER
DOES NOT EVIDENCE AN AGREEMENT AS ALLEGED, BUT TAKEN INTO CONSIDERATION
WITH EMPHASIS PLACED UPON "EQUIVALENT STATUS" BY THE PARTIES IT TENDS TO
CORROBORATE RESPONDENT'S INSISTENCE UPON THE APPLICABILITY OF THE
PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT THEN IN EFFECT.
CONTINUED INSISTENCE ON TERMS OF COLLECTIVE BARGAINING AGREEMENT
THE RECORD REFLECTS A GENERAL PATTERN OF RESPONDENT INSISTENCE UPON
CONTINUATION OF THE TERMS AND CONDITIONS OF EMPLOYMENT EMBODIED IN THE
AFGE-NRC AGREEMENT BEFORE AND AFTER CERTIFICATION OF NTEU. DURING THE
SUMMER OF 1978, MR. BENTSON, IN A DISCUSSION WITH THE PRESIDENT OF NTEU
CHAPTER 208, INSISTED THAT THE ARBITRATION PROVISIONS OF THE AFGE-NRC
COLLECTIVE BARGAINING AGREEMENT WOULD BE FULLY APPLICABLE TO THE
NTEU-NRC LABOR-MANAGEMENT RELATIONSHIP (TR. 157-158). THIS POSITION OF
THE RESPONDENT ALSO SURFACED AS A RESULT OF A GRIEVANCE FILED BY NTEU ON
NOVEMBER 16, 1978, ON BEHALF OF A BARGAINING UNIT EMPLOYEE (RESPONDENT
EXHIBIT 4). THE GRIEVANCE, FILED UNDER A NRC GRIEVANCE PROCEDURE, WAS
REJECTED BECAUSE THE AFGE WAS ENTITLED TO STATUS AS THE EXCLUSIVE
BARGAINING REPRESENTATIVE THROUGH NOVEMBER 16, 1978, THE DATE ON WHICH
THE GRIEVANCE WAS FILED. HOWEVER, RESPONDENT ALSO STRESSED THAT THE
GRIEVANCE PROCEDURE SET OUT IN THE AFGE-NRC AGREEMENT WOULD BE
APPLICABLE TO GRIEVANCES FILED AFTER CERTIFICATION (RESPONDENT EXHIBIT
5).
AN UNFAIR LABOR PRACTICE CHARGE ARISING OUT OF RESPONDENT'S REFUSAL
TO PROCESS GRIEVANCES UNDER THE NRC GRIEVANCE PROCEDURE, AND ON
RESPONDENT'S INSISTENCE ON USE OF THE GRIEVANCE PROCEDURE SET OUT IN THE
EXPIRED NRC-AFGE COLLECTIVE BARGAINING AGREEMENT WAS ANSWERED BY THE
RESPONDENT IN PART BY THE FOLLOWING LANGUAGE:
IT IS NRC MANAGEMENT'S VIEW THAT ON THE DATE NTEU BECAME CERTIFIED
THE OLD AFGE CONTRACT,
WHILE NOT A VALID AGREEMENT, DID REPRESENT THE PAST PRACTICES WHICH
WERE BINDING ON THE
PARTIES (NRC AND NTEU) UNTIL SUCH TIME AS A NEW LABOR AGREEMENT COULD
BE NEGOTIATED.
. . . .
WE HAVE CONSISTENTLY MADE MS. DANCH AND JAMES THOMAS, PRESIDENT OF
THE CHAPTER, AWARE OF
OUR VIEW THAT THE PRIOR LABOR AGREEMENT REPRESENTS EXISTING PAST
PRACTICE THAT MUST BE
FOLLOWED UNTIL SUCH TIME AS A NEW LABOR AGREEMENT OR INTERIM
PROCEDURE CAN BE NEGOTIATED. IT
APPEARS THAT THE NTEU IS WILLING TO ACCEPT BENEFITS WHICH FLOWED TO
AFGE UNDER THE OLD
CONTRACT. FOR EXAMPLE, NTEU IS USING THE SAME NUMBER OF BULLETIN
BOARDS THAT AFGE WAS
ACCORDED, THE ONLY CHANGE BEING THE SUBSTITUTION OF NTEU'S NAME FOR
THAT OF
AFGE. ADDITIONALLY, NTEU HAS USED THE SAME NUMBER OF STEWARDS AND
OFFICERS TO REPRESENT
EMPLOYEES IN THE BARGAINING UNIT AS WAS CALLED FOR IN THE OLD
CONTRACT. NEITHER OF THESE
QUESTIONS HAS BEEN NEGOTIATED BY NTEU, BUT RATHER, THE PAST PRACTICE
CONTRACTUAL PROCEDURES
WERE ADOPTED. /9/
ABOUT A WEEK AFTER CERTIFICATION ON NOVEMBER 17, 1978, MR. GREG
BENOIT, AN NRC LABOR MANAGEMENT AND EMPLOYEE RELATIONS SPECIALIST MET
WITH MR. JAMES THOMAS, PRESIDENT OF NTEU LOCAL 208 TO DISCUSS THE
APPLICABILITY OF THE AFGE-NRC GRIEVANCE PROCEDURE TO THE NTEU-NRC
RELATIONSHIP, AND OTHER ISSUES (TR. 319-320). IN THE PROCESS OF
ESTABLISHING RESPONDENT'S INSISTENCE ON THE APPLICABILITY OF PAST
PRACTICES EVIDENCED IN THE PROVISIONS OF THE COLLECTIVE BARGAINING
AGREEMENT, MR. BENOIT WENT THROUGH THE AFGE CONTRACT, AND READ DIRECTLY
FROM THE CONTRACT IN ORDER TO ARTICULATE THE POLICY THAT THE RESPONDENT
WOULD FOLLOW ON LABOR-MANAGEMENT RELATIONS ISSUES (320-322, 324,
341-342). MR. BENOIT READ PART VI, ARTICLE F, SECTION 4 OF THE
COLLECTIVE BARGAINING AGREEMENT. HE PARAPHRASED THE PORTION ABOUT THE
BULLETIN BOARD SPACE ALLOCATED TO THE NTEU AND READ THE REST OF THE
SECTION COMPLETELY (TR. 324). MR. THOMAS RESPONDED BY SAYING EITHER,
"WELL, I UNDERSTAND," (TR. 324, 322), OR "OKAY, I KNOW WE WILL STICK
WITH ALL THIS. WE ACCEPT IT." (TR. 345). /10/
MR. BENOIT REITERATED THIS SAME POSITION ORALLY AND IN WRITING TO MS.
SHARYN DANCH, ASSISTANT COUNSEL, NTEU (TR. 322, 327, RESPONDENT EXHIBIT
9). THE POSITION OF RESPONDENT WAS REPEATED IN A DECEMBER 21, 1978
MEMORANDUM ADDRESSED TO MR. THOMAS BY MR. MARTIN DAUGHERTY, CHIEF, LABOR
MANAGEMENT AND EMPLOYEE RELATIONS BRANCH (RESPONDENT EXHIBIT 10).
NTEU USE OF BULLETIN BOARDS
AS A RESULT OF THE MAY 2, 1978 AGREEMENT THE RESPONDENT PROVIDED TO
NTEU, RESERVED SPACE ON SOME SIXTEEN OR SEVENTEEN "OFFICIAL NRC BULLETIN
BOARDS" (TR. 291, GENERAL COUNSEL EXHIBIT 4). THE SAME AMOUNT OF SPACE
ON THE SAME BULLETIN BOARDS HAD BEEN PREVIOUSLY PROVIDED TO AFGE UNDER
THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT. AFGE CONTINUED TO BE
ENTITLED TO SUCH RESERVED SPACE UNTIL CERTIFICATION OF NTEU ON NOVEMBER
17, 1978. /11/
THE NATURE OF NTEU'S USE OF OFFICIAL BULLETIN BOARD SPACE, AS WELL AS
OTHER NRC BULLETIN BOARDS WAS DOCUMENTED IN SOME DETAIL. GENERAL
COUNSEL EXHIBITS 7-13, 23 AND 24 ALL REFLECT NTEU POSTINGS MADE PRIOR TO
THE RESPONDENT'S REMOVAL OF A POSTING ON APRIL 24, 1979. IT WAS
ESTABLISHED THAT NTEU ENCOUNTERED NO MANAGEMENT ADMONITION OR SANCTION
WITH RESPECT TO ANY POSTING. COUNSEL FOR THE GENERAL COUNSEL ARGUES
THAT SIGNIFICANT PORTIONS OF THE POSTINGS INTRODUCED INTO THE RECORD ARE
"CRITICAL OF OR (REFLECT) ADVERSELY ON INDIVIDUALS, ORGANIZATIONS, AND
ACTIVITIES OF THE FEDERAL GOVERNMENT," AND "ARGUABLY" VIOLATE THE BROAD
PROHIBITIONS IN THE COLLECTIVE BARGAINING AGREEMENT (GENERAL COUNSEL'S
BRIEF 9-10). /12/
PRIOR TO REMOVAL OF THE POSTING UNDERLYING THE COMPLAINT, THE
RESPONDENT HAD NOT, TO THE KNOWLEDGE OF WITNESSES, REMOVED AN AFGE OR
NTEU POSTING ON ANY OFFICIAL BULLETIN BOARD SPACE BECAUSE SUCH REFLECTED
"ADVERSELY ON INDIVIDUALS, ORGANIZATIONS, OR ACTIVITIES OF THE FEDERAL
GOVERNMENT." /13/ THERE IS NO INDICATION IN THE RECORD THAT ANY
RESPONSIBLE MANAGEMENT OFFICIAL EVER OBSERVED ANY SPECIFIC POSTING ON
ANY BULLETIN BOARD OTHER THAN THE POSTING REMOVED ON APRIL 25, 1979.
THE RECORD IS SILENT CONCERNING ANY REAL EFFORT BY THE RESPONDENT TO
POLICE THE USE OF BULLETIN BOARDS BY THE AFGE OR NTEU. IT WAS DISCLOSED
THAT THE RESPONDENT'S OFFICE OF LABOR MANAGEMENT AND EMPLOYEE RELATIONS
DID NOT HAVE THE OBLIGATION TO POLICE THE USE OF BULLETIN BOARD SPACE
(TR. 292-304). NO PROOF WAS ADDUCED TO SHOW WHERE THIS RESPONSIBILITY
WAS PLACED.
AN INSPECTION OF BULLETIN BOARDS DID OCCUR JUST PRIOR TO THE JUNE 6,
1978 REPRESENTATION ELECTION. THIS WAS CONDUCTED BY NRC OFFICIALS IN
THE LABOR MANAGEMENT AND EMPLOYEE RELATIONS BRANCH IN CONNECTION WITH
RESPONDENT'S OBLIGATION TO POST ELECTION NOTICES; HOWEVER, THIS
INSPECTION WAS PRECIPITATED SOLELY BY THE NECESSITY TO POST ELECTION
ANNOUNCEMENTS, AND WAS NOT A DETAILED INSPECTION TO UNCOVER VIOLATIONS
OF THE COLLECTIVE BARGAINING AGREEMENT (TR. 291, 304). ALTHOUGH THERE
WAS SOME PERUSAL OF POSTINGS AND REMOVAL OF A NUMBER, THESE REMOVALS IN
NO WAY INFRINGED UPON THE RIGHTS OF NTEU, AND INVOLVED NO CENSORSHIP OF
NTEU POSTINGS (TR. 310-311, 334-336, 339-340). AGAIN, THERE WAS NO
INDICATION IN THE RECORD THAT ANY MANAGEMENT OFFICIAL EVER OBSERVED ANY
SPECIFIC POSTING ON ANY SPECIFIC NTEU BULLETIN BOARD SPACE DURING THE
INSPECTION.
IT WAS BROUGHT OUT THAT ITEMS POSTED WERE USUALLY MADE THE SUBJECT OF
WIDESPREAD DISTRIBUTION TO BARGAINING UNIT EMPLOYEES, AND THEN ALSO
POSTED ON NTEU BULLETIN BOARD SPACE. PROOF WAS ADDUCED TO SHOW THAT
ITEMS DISTRIBUTED AND POSTED WERE USUALLY DISSEMINATED TO NRC MANAGEMENT
(TR. 252-253); /14/ HOWEVER, THERE WAS NO SHOWING THAT ANY MANAGEMENT
OFFICIAL WAS AWARE OF ANY POSTING OF ANY SPECIFIC DOCUMENT DISSEMINATED
TO MANAGEMENT. THE RECORD IS DEVOID OF PROOF THAT ANY MANAGEMENT
OFFICIAL SAW, PERMITTED OR CONDONED ANY POSTING OF ANY DISTRIBUTED
DOCUMENT, OR PORTION OF ANY SUCH DOCUMENT, ON NTEU BULLETIN BOARD SPACE.
ALTHOUGH IT IS TRUE THAT MANAGEMENT OFFICIALS WERE LOCATED THROUGHOUT
THE NRC FACILITIES (TR. 303); THERE WAS NO SHOWING THAT ANY MANAGER
READ ANY POSTING GENERALLY OR SPECIFICALLY. THERE WAS NO SHOWING THAT
ANY MANAGEMENT OFFICIAL READ POSTINGS WITH TEXTUAL MATERIAL THAT FELL
WITHIN THE PROHIBITIONS OF THE COLLECTIVE BARGAINING AGREEMENT. PROOF
WAS ADDUCED TO SHOW GENERAL NON-SPECIFIC MANAGEMENT COMMENTS TO THE
EFFECT THAT NTEU LITERATURE WAS "WELL DONE" OR "INTERESTING" (TR.
92-93). THESE COMMENTS WERE NOT ATTRIBUTED TO ANY MANAGER OR BULLETIN
BOARD POSTING.
CONCLUSIONS OF LAW
IT IS WELL ESTABLISHED THAT THE USE OF AGENCY FACILITIES AND
EQUIPMENT BY A UNION IS A PRIVILEGE AND NOT A RIGHT, BUT THAT ONCE
GRANTED SUCH PRIVILEGE BECOMES, IN EFFECT, AN ESTABLISHED TERM AND
CONDITION OF EMPLOYMENT WHICH MAY NOT THEREAFTER BE UNILATERALLY
CHANGED. ARKANSAS ARMY NATIONAL GUARD, ASSISTANT SECRETARY CASE NO.
64-4120(CA), 1 FLRA NO. 100 (AUGUST 15, 1979), REPORT NO. 15;
HEADQUARTERS, 2750TH AIR BASE WING, U.S. AIR FORCE, WRIGHT-PATTERSON AIR
FORCE BASE, OHIO, ASSISTANT SECRETARY CASE NO. 53-10533(CA), 1 FLRA NO.
26 (APRIL 27, 1979), REPORT NO. 14; VETERANS ADMINISTRATION REGIONAL
OFFICE, BUFFALO, NEW YORK, ASSISTANT SECRETARY CASE NO. 35-4567(CA), 1
FLRA NO. 26 (APRIL 27, 1979), REPORT NO. 4; INTERNAL REVENUE SERVICE,
SOUTHWEST REGION, APPELLATE BRANCH OFFICE, NEW ORLEANS, LOUISIANA,
A/SLMR NO. 1153(1978); U.S. DEPARTMENT OF HEALTH, EDUCATION AND
WELFARE, SOCIAL SECURITY ADMINISTRATION, BUREAU OF DATA PROCESSING,
ALBUQUERQUE DATA OPERATIONS CENTER, ALBUQUERQUE, NEW MEXICO, A/SLMR NO.
1080(1978); U.S. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
NEW ORLEANS DISTRICT, NEW ORLEANS, LOUISIANA, A/SLMR NO. 1034(1978), 6
FLRC 900 (FLRC NO. 78A-71 (DEC. 1, 1978), REPORT NO. 161); VETERANS
ADMINISTRATION, VETERANS ADMINISTRATION REGIONAL OFFICE, NEW YORK
REGION, A/SLMR NO. 694(1976); INTERNAL REVENUE SERVICE. OFFICE OF THE
REGIONAL COMMISSIONER, WESTERN REGION, A/SLMR NO. 473(1975); LOS
ANGELES AIR ROUTE TRAFFIC CONTROL CENTER, FEDERAL AVIATION
ADMINISTRATION, A/SLMR NO. 283(1973).
ALSO, THE FEDERAL LABOR RELATIONS COUNCIL HAS HELD THAT "EXISTING
PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING
CONDITIONS, WHETHER OR NOT THEY ARE INCLUDED IN A NEGOTIATED AGREEMENT,
CONTINUE AS ESTABLISHED UPON THE EXPIRATION OF A NEGOTIATED AGREEMENT .
. . UNLESS OTHERWISE MODIFIED IN A MANNER CONSISTENT WITH (EXECUTIVE
ORDER 11491)." INTERNAL REVENUE SERVICE, OGDEN SERVICE CENTER, ET AL.,
A/SLMR NO. 806(1977), 6 FLRC 310 (FLRC NO. 77A-40 (MAY 18, 1978), REPORT
NO. 158); DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
BROOKHAVEN SERVICE CENTER, A/SLMR NO. 859(1977), 6 FLRC 310 (FLRC NO.
77A-92 (MAY 18, 1978), REPORT NO. 158).
IN THIS CASE THE COLLECTIVE BARGAINING AGREEMENT REPRESENTS NTEU-NRC
PAST PRACTICE CONCERNING THE NTEU'S USE OF NRC BULLETIN BOARD SPACE.
THE QUESTION POSED IS WHETHER THE PAST PRACTICE REFLECTED IN THE
AGREEMENT WAS MODIFIED BY INFORMAL AGREEMENT ON MAY 2, 1978 AND/OR BY A
PATTERN OF UNRESTRICTED USE OF NTEU BULLETIN BOARD SPACE FROM MAY 2,
1978 TO APRIL 25, 1979. THAT IS, THE ESSENCE OF THE CONTENTIONS AND
ARGUMENTS OF THE PARTIES RELATES PRINCIPALLY TO WHETHER, UNDER THE
PARTICULAR CIRCUMSTANCES PRESENTED HERE, THE RESPONDENT WAIVED THE RIGHT
TO INSIST UPON THE APPLICABILITY OF THE PREVIOUSLY MENTIONED RESTRICTIVE
PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT; AND IF SO, WHETHER
THE RESPONDENT THEN UNILATERALLY TERMINATED THE PRACTICE OF ALLOWING
POSTINGS VIOLATIVE OF THE RESTRICTIVE PROVISIONS OF THE COLLECTIVE
BARGAINING AGREEMENT.
A CAREFUL REVIEW OF THE RECORD DISCLOSES NO BASIS FOR CONCLUDING THAT
ON MAY 2, 1978, NRC AGREED TO GIVE NTEU UNRESTRICTED USE OF BULLETIN
BOARD SPACE. INSTEAD THE RECORD REVEALS THAT AT THE MAY 2, 1978 MEETING
CONVENED BY THE DEPARTMENT OF LABOR, RESPONDENT INSISTED UPON THE
PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT WITH RESPECT TO NTEU'S
ACCESS TO BARGAINING UNIT EMPLOYEES. EVIDENCE INTRODUCED ON BEHALF OF
NTEU WITH RESPECT TO EVENTS OCCURRING IMMEDIATELY AFTER THE MENTIONED
MEETING REFLECTS NOTHING TO CONTRADICT THIS VERSION OF WHAT TRANSPIRED
ON MAY 2, 1978. INSTEAD OF AN AGREEMENT REMOVING RESTRICTIONS ON
BULLETIN BOARD POSTINGS, THERE WAS CONVINCING EVIDENCE THAT ON MAY 2,
1978, NTEU AND AFGE WERE TREATED EQUALLY AND THAT NTEU'S ACCESS WAS MADE
SUBJECT TO THE COLLECTIVE BARGAINING AGREEMENT.
THE RECORD DOES SHOW THAT NTEU POSTED MATERIAL AFTER MAY 2, 1978, AND
AFTER CERTIFICATION, WHICH ARGUABLY REFLECTED LANGUAGE FALLING WITHIN
THE RESTRICTIVE PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT;
HOWEVER, THERE WAS NO SHOWING THAT RESPONSIBLE MANAGEMENT OFFICIALS EVER
PERMITTED OR CONDONED THE POSTING OF DOCUMENTS CONTAINING LANGUAGE
VIOLATIVE OF THE RESTRICTIVE CONTRACTUAL PROVISIONS GOVERNING THE
PRACTICE OF THE PARTIES WITH RESPECT TO THE USE OF NRC BULLETIN BOARD
SPACE. /15/ THERE WAS NO EVIDENCE THAT THE RESPONDENT CLEARED DOCUMENTS
PRIOR TO POSTING, OR THAT ANY SPECIFIC POSTING CONTAINING LANGUAGE
DEEMED OBJECTIONABLE TO RESPONDENT WAS NOTICED BY ANY RESPONSIBLE
MANAGEMENT OFFICIAL. THIS IS NOT A CASE WHERE PROOF WAS ADDUCED TO SHOW
THAT MANAGEMENT RECEIVED, APPROVED, OR PROCESSED POSTINGS, ALTHOUGH IT
IS CLEAR THAT SUCH A RIGHT MAY HAVE BEEN IMPLIED IN THE COLLECTIVE
BARGAINING AGREEMENT. THE CONTRACT DOES INDICATE THAT THE BULLETIN
BOARDS WOULD BE UNDER RESPONDENT'S CONTROL; HOWEVER, EVIDENCE OF THE
EXERCISE OF ANY RIGHT OF CONTROL BY NRC IS LACKING. IN FACT THE
COLLECTIVE BARGAINING AGREEMENT OPERATED TO PLACE UPON THE UNION THE
RESPONSIBILITY FOR COMPLIANCE WITH THE RESTRICTIVE PROVISIONS. IN THIS
REGARD COUNSEL FOR THE GENERAL COUNSEL APPEARS TO SUGGEST THAT A MERE
SHOWING OF NTEU'S FAILURE TO PERFORM SUCH RESPONSIBILITY FOR A PERIOD OF
TIME MAY BE MADE A BASIS FOR FUTURE NON-PERFORMANCE (TR. 28).
ALTHOUGH PROOF WAS INTRODUCED TO SHOW THAT NRC MANAGERS RECEIVED
COPIES OF DOCUMENTS DISTRIBUTED GENERALLY TO BARGAINING UNIT EMPLOYEES,
THERE WAS NO PROOF THAT ANY MANAGER RECEIVED COPIES OF DOCUMENTS KNOWN
TO HAVE BEEN POSTED ON NTEU BULLETIN BOARD SPACE, OR MORE SPECIFICALLY,
COPIES OF POSTINGS CONTAINING LANGUAGE FALLING WITHIN THE RESTRICTIVE
PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT. PROOF THAT DOCUMENTS
DISTRIBUTED GENERALLY TO BARGAINING UNIT MEMBERS WERE ALSO DISTRIBUTED
TO MANAGEMENT WOULD NOT OPERATE TO IMPUTE TO MANAGEMENT, KNOWLEDGE OF
THE CONTENT OF DOCUMENTS SELECTED FOR POSTING IN THE ABSENCE OF PROOF
THAT RESPONSIBLE MANAGEMENT OFFICIALS KNEW OR WERE AWARE THAT DOCUMENTS
DISTRIBUTED WERE ALSO POSTED BY THE UNION. ONE MAY SPECULATE THAT SOME
MANAGER OR MANAGERS SAW OR READ ONE OR MORE OF THE POSTED DOCUMENTS
ENTERED INTO THE RECORD AS EXAMPLES OF BULLETIN BOARD POSTINGS DEEMED
VIOLATIVE OF THE COLLECTIVE BARGAINING AGREEMENT. HOWEVER, THE RECORD
CONTAINS NO EVIDENCE OF THIS TYPE.
A SHOWING OF UNRESTRICTED USE OF BULLETIN BOARDS FROM MAY 2, 1978
THROUGH APRIL 25, 1979, WITHOUT MORE, WOULD NOT BE ENOUGH TO ESTABLISH
THAT THE RESPONDENT REGULARLY PERMITTED THE POSTING OF MATERIAL WHICH
REFLECTED "ADVERSELY ON INDIVIDUALS, ORGANIZATIONS, OR ACTIVITIES OF THE
FEDERAL GOVERNMENT." IN DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
REGION V, CHICAGO, ILLINOIS, CASE NOS. 5-CA-33, 5-CA-72 AND 5-CA-116,
DECIDED ON FEBRUARY 4, 1980, AND NOW PENDING BEFORE THE AUTHORITY, JUDGE
WILLIAM B. DEVANEY HELD:
TO CONSTITUTE A CONDITION OF EMPLOYMENT CONTRARY TO A NEGOTIATED
AGREEMENT, SUCH PRACTICE
MUST: (A) BE KNOWN TO MANAGEMENT; (B) RESPONSIBLE MANAGEMENT MUST
KNOWINGLY ACQUIESCE; AND
(C) SUCH PRACTICE MUST CONTINUE FOR SOME SIGNIFICANT PERIOD OF TIME.
THE ALTERNATIVE WOULD BE
CHAOS AND COLLECTIVE BARGAINING AGREEMENTS WOULD BE RENDERED
MEANINGLESS IF EVERY DEPARTURE
CREATED A NEW CONDITION OF EMPLOYMENT (DECISION AT PAGE 8).
JUDGE DEVANEY FOUND THAT RESPONSIBLE MANAGEMENT OFFICIALS KNOWINGLY
ACQUIESCED IN A PRACTICE, BUT THAT THE PRACTICE INVOLVED WAS NOT
UNILATERALLY CHANGED BY MANAGEMENT. IN THIS CASE IT IS CLEAR THAT PROOF
OF ELEMENTS (A) AND (B) REFERRED TO IN THE QUOTED LANGUAGE ARE MISSING.
AUTHORITIES CITED HEREIN REFLECT THAT UNLESS A PRIVILEGE OR RIGHT TO
UTILIZE AGENCY FACILITIES AND SERVICES EXISTS IN THE FIRST INSTANCE, AN
UNFAIR LABOR PRACTICE MAY NOT BE PREDICATED UPON A MANAGEMENT EFFORT TO
PROHIBIT THEIR USE. THAT IS, IN ORDER TO BRING THE PRINCIPLE INTO
OPERATION, THERE MUST BE A CLEAR SHOWING THAT USE OF AGENCY FACILITIES
OR EQUIPMENT DEVELOPED OVER A PERIOD OF TIME INTO A TERM AND CONDITION
OF EMPLOYMENT.
IN ARKANSAS ARMY NATIONAL GUARD, A CASE INVOLVING DISCONTINUANCE OF
THE USE OF AN INTERNAL MAIL SYSTEM, THERE WAS A FINDING THAT RESPONSIBLE
MANAGEMENT OFFICIALS HAD PERMITTED OR INTENTIONALLY OVERLOOKED THE
UNION'S PRIOR USE OF THE INTERNAL MAIL SYSTEM. IN HEADQUARTERS, 2750TH
AIR BASE WING, U.S. AIR FORCE, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, A
COMPLAINT ALLEGED IN PART, THAT A UNION'S USE OF TYPING FACILITIES WAS
DENIED. THIS PORTION OF THE COMPLAINT WAS DISMISSED BECAUSE "SUCH USE
OF (MANAGEMENT) TYPING FACILITIES WAS NEVER KNOWINGLY PERMITTED" IN THE
FIRST INSTANCE. IN VETERANS ADMINISTRATION REGIONAL OFFICE, BUFFALO,
NEW YORK, THE PRIOR PRACTICE ALLEGEDLY CHANGED, WAS ONE INVOLVING THE
SELECTION OF EMPLOYEES FOR PROMOTION, A PRACTICE NECESSARILY KNOWN TO
MANAGEMENT. IN INTERNAL REVENUE SERVICE, SOUTHWEST REGION, APPELLATE
BRANCH OFFICE, NEW ORLEANS, LOUISIANA; AND U.S. DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE, NEW ORLEANS DISTRICT, NEW ORLEANS,
LOUISIANA, MANAGEMENT KNOWINGLY PERMITTED UNION USE OF TYPEWRITERS
AND/OR SECRETARIAL SERVICE, AND THEN SUBSEQUENTLY WITHDREW SUCH
PERMISSION. IN U.S. DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL
SECURITY ADMINISTRATION, BUREAU OF DATA PROCESSING, ALBUQUERQUE DATA
OPERATIONS CENTER, THERE WAS A FINDING THAT A TELEPHONE CALL SCREENING
PROCEDURE UNILATERALLY IMPLEMENTED BY MANAGEMENT SCREENING. IN VETERANS
ADMINISTRATION, VETERANS ADMINISTRATION REGIONAL OFFICE, NEW YORK
REGION, AGENCY MANAGEMENT, UNDER THE TERMS OF AN INFORMAL AGREEMENT,
SUPPLIED A TELEPHONE FOR THE DESK OF A UNION PRESIDENT, AND THEREAFTER
REFUSED TO PERMIT THE USE OF A DESK TELEPHONE. IN INTERNAL REVENUE
SERVICE, OFFICE OF THE REGIONAL COMMISSION, WESTERN REGION, AGENCY
MANAGEMENT AND A UNION AGREED TO THE USE OF AGENCY BULLETIN BOARDS AND
MEETING ROOMS, AND PLACED RESTRICTIONS ON SUCH USE. SUBSEQUENTLY,
REFUSAL BY MANAGEMENT TO PROVIDE THE USE OF BULLETIN BOARDS WAS BASED ON
RESTRICTIONS WHICH WENT BEYOND THOSE ESTABLISHED AND AGREED UPON BY THE
AGENCY. THIS WAS DEEMED TO BE A UNILATERAL CHANGE IN THE TERMS AND
CONDITIONS OF EMPLOYMENT. IN LOS ANGELES AIR ROUTE TRAFFIC CONTROL
CENTER, FEDERAL AVIATION ADMINISTRATION, BULLETIN BOARD POSTINGS AND
DOCUMENTS TO BE PLACED IN CERTAIN READING BINDERS WERE ALLOWED BY
MANAGEMENT SUBJECT TO CERTAIN MANAGEMENT RULES. MANAGEMENT'S
SUBSEQUENT
USE OF DIFFERENT STANDARDS COMPRISED THE PRIMARY BASIS OF THE UNFAIR
LABOR PRACTICE COMPLAINT. AGAIN, THERE WAS NO QUESTION CONCERNING THE
NATURE OF MANAGEMENT'S AWARENESS OF, AND ACQUIESCENCE IN, THE PRIOR
PRACTICE. PROOF OF THIS ELEMENT IS ESSENTIAL.
COUNSEL FOR THE GENERAL COUNSEL ALSO ARGUES THAT RESPONDENT'S ACTION
ON APRIL 25, 1979, ALSO REPRESENTED A UNILATERAL ESTABLISHMENT OF WHAT
PREVIOUSLY HAD BEEN AN AMBIGUOUS, IRREGULARLY ENFORCED POLICY. COUNSEL
CITES PENNSYLVANIA ARMY AND AIR NATIONAL GUARD, A/SLMR NO. 969(1978) AS
AUTHORITY FOR THIS POSITION. THE CITED CASE DEALT WITH AN AGENCY'S
REQUIREMENT THAT NATIONAL GUARD CIVILIAN TECHNICIANS INCLUDE REFERENCE
TO THEIR MILITARY RANK ON CERTAIN RECORDS PREPARED BY THE TECHNICIANS.
IN FINDING A VIOLATION OF SECTION 19(A)(1) AND (6) OF EXECUTIVE ORDER
11491, THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS
DETERMINED THAT IF THERE WAS IN FACT A PRIOR POLICY, THE AGENCY'S
ATTEMPTS TO ENFORCE SUCH POLICY WERE IRREGULAR AND AMBIGUOUS. NO SUCH
SHOWING WAS MADE IN THIS CASE. HERE THE RECORD REFLECTS THAT THE
RESPONDENT'S CONDUCT CONSISTENTLY INVOLVED INSISTENCE UPON THE
RESTRICTIVE PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT. THERE
WAS NO SHOWING THAT THE RESPONDENT IRREGULARLY ENFORCED THE RESTRICTIVE
PROVISIONS IN QUESTION. THE RECORD DEVELOPED REFLECTS THAT THE APRIL
25, 1979 INCIDENT WAS A CASE OF FIRST IMPRESSION, IN THAT IT WAS THE
FIRST TIME THAT A SPECIFIC DOCUMENT POSTED BY NTEU WAS NOTICED BY
MANAGEMENT AND REMOVED, BUT THAT PRIOR TO APRIL 25, 1979, THERE WAS A
PATTERN OF INSISTENCE UPON THE APPLICABILITY OF THE TERMS OF THE
COLLECTIVE BARGAINING AGREEMENT.
LASTLY, COUNSEL FOR THE GENERAL COUNSEL ARGUES THAT RESPONDENT'S
CONDUCT ON APRIL 25, 1979, CONSTITUTED THE UNILATERAL IMPOSITION OF A
NEW TERM AND CONDITION OF EMPLOYMENT IN THAT PART VI, ARTICLE F, OF THE
AFGE-NRC AGREEMENT PROVIDES THAT DISPUTES OVER THE APPLICATION OR
INTERPRETATION OF THE PROVISIONS OF THE AGREEMENT BETWEEN THE EMPLOYER
AND THE UNION ARE TO BE HANDLED PURSUANT TO THE CONTRACTUAL DISPUTE
RESOLUTION PROCEDURE IN THE CONTRACT, AND THAT THE RESPONDENT, IN
EFFECT, WAIVED THE RIGHT, TO TAKE UNILATERAL ACTION OUTSIDE OF THE
AGREEMENT TO RESOLVE DISPUTES. THE COMPLAINT HEREIN ALLEGES VIOLATIONS
OF THE STATUTE BASED UPON UNILATERAL CHANGES IN "EXISTING CONDITIONS OF
EMPLOYMENT AND PAST PRACTICES WITH REGARD TO UNION BULLETIN BOARDS
INCLUDING, THE IMPACT AND IMPLEMENTATION OF SUCH CHANGES BY REMOVING AN
ARTICLE FROM A DESIGNATED UNION BULLETIN BOARD." THE COMPLAINT AT NO
POINT ALLEGES A UNILATERAL CHANGE IN THE CONTRACTUAL DISPUTE RESOLUTION
PROCEDURE. EVEN ASSUMING THE POSSIBILITY OF A VIOLATION, BASED ON THIS
THEORY IT MAY NOT BE GIVEN CONSIDERATION AT THIS STAGE OF THE
PROCEEDING. SINCE THIS MATTER WAS NOT REFERRED TO IN THE COMPLAINT, IT
MAY NOT NOW BE CONSIDERED. INTERNAL REVENUE SERVICE AND BROOKLYN
DISTRICT OFFICE, ASSISTANT SECRETARY CASE NO. 30-08634(CA), 2 FLRA NO.
76 (JAN. 25, 1980), REPORT NO. . . . ; DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, A/SLMR NO. 967(1978).
IT IS CONCLUDED THAT A PREPONDERANCE OF THE EVIDENCE DOES NOT SUPPORT
ALLEGATIONS THAT THE RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (5) OF
THE STATUTE. UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS,
IT IS RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT
TO 5 C.F.R. 2423.29(C):
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 3-CA-263, BE, AND
HEREBY IS, DISMISSED.
LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
DATE: APRIL 14, 1980
WASHINGTON, D.C.
SERVICE SHEET
COPIES OF THE "RECOMMENDED DECISION AND ORDER" ISSUED BY LOUIS
SCALZO, ADMINISTRATIVE LAW JUDGE, WAS SENT TO THE FOLLOWING PEOPLE BY
CERTIFIED MAIL.
BECKY J. FORREST
LEE MINGLEDORFF, ESQUIRE
FEDERAL LABOR RELATIONS AUTHORITY
REGION III
1730 K STREET, NW., SUITE 401
WASHINGTON, D.C. 20006
BARBARA J. COLLINS, ESQUIRE
ASSISTANT COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, NW., SUITE 1101
WASHINGTON, D.C. 20006
DENNIS C. DAMBLY, ESQUIRE
BRUCE A. BERSON, ESQUIRE
OPERATIONS AND ADMINISTRATIVE DIVISION
OFFICE OF THE EXECUTIVE LEGAL DIRECTOR
U.S. NUCLEAR REGULATORY COMMISSION
WASHINGTON, D.C. 20555
REGULAR MAIL:
ASSISTANT DIRECTOR, LABOR-MANAGEMENT
RELATIONS
U.S. OFFICE OF PERSONNEL MANAGEMENT
1900 E STREET, NW.
WASHINGTON, D.C. 20415
FEDERAL LABOR RELATIONS AUTHORITY
1900 E STREET, N.W., ROOM 7469
WASHINGTON, D.C. 20424
MR. ROBERT TOBIAS
GENERAL COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, NW.
WASHINGTON, D.C. 20006
1 COPY TO EACH REGIONAL DIRECTOR
H. STEPHAN GORDON
FEDERAL LABOR RELATIONS AUTHORITY
GENERAL COUNSEL
1900 E STREET, NW.
WASHINGTON, D.C. 20424
--------------- FOOTNOTES: ---------------
/1/ THE CROSS-EXCEPTION ASSERTS THAT THE GENERAL COUNSEL'S COMPLAINT
SHOULD BE DISMISSED BASED ON THE RESPONDENT'S PRE-HEARING MOTION FOR A
MORE DEFINITE STATEMENT OR FOR AN ORDER DIRECTING THE AUTHORITY TO
RESPOND TO WRITTEN INTERROGATORIES, WHICH WAS REJECTED BY THE
ADMINISTRATIVE LAW JUDGE. RESPONDENT'S MOTION TO RECONSIDER ALSO WAS
REJECTED BY THE JUDGE. IN SAID MOTIONS, THE RESPONDENT MAINTAINED THAT
IT DID NOT RECEIVE NOTICE OF ALL ISSUES OF FACT AND LAW WHICH THE
GENERAL COUNSEL INTENDED TO ASSERT AT THE HEARING, AND THAT THE
COMPLAINT WAS MISLEADING BECAUSE THE CHARGE IT IS BASED UPON WAS
MISLEADING. THE AUTHORITY AFFIRMS THE RULING MADE BY THE ADMINISTRATIVE
LAW JUDGE RELATIVE TO THE PRE-HEARING MOTIONS IN WHICH HE FOUND THE
COMPLAINT MET THE REQUIREMENTS OF 5 CFR 2423.11 AND THAT THE ALLEGATIONS
CONTAINED THEREIN WERE NEITHER VAGUE NOR PRECLUDED THE RESPONDENT FROM
UNDERSTANDING, RESPONDING TO, OR DEFENDING AGAINST THE COMPLAINT. IN
AFFIRMING THE JUDGE, THE AUTHORITY ALSO NOTES THAT ALL RELEVANT ISSUES
WERE FULLY LITIGATED AT THE HEARING.
/2/ COUNSEL FOR THE CHARGING PARTY FILED A POST-HEARING BRIEF WHICH
ALSO ADVANCED THESE ARGUMENTS.
/3/ THE PARTIES DID IN FACT RELY UPON NOVEMBER 17, 1978 AS THE DATE
ON WHICH NTEU WAS CERTIFIED.
/4/ THE EXACT EFFECTIVE DATE OF THE AGREEMENT IS NOT REFLECTED IN THE
RECORD.
/5/ THE ARTICLE CAPTIONED, "WE ONLY KNOW WE ALMOST LOST
PENNSYLVANIA," DEALT WITH THE NUCLEAR ACCIDENT AT THE THREE MILE ISLAND
NUCLEAR POWER PLANT. MR. BENTSON REFERRED TO LANGUAGE WHEREIN IT WAS
NOTED THAT "METROPOLITAN EDISON, THE TRANSPARENTLY THAN NRC" (JOINT
EXHIBIT 1, TR. 49-50).
/6/ DURING THIS PERIOD NTEU WAS NOT LEGALLY FUNCTIONING AT THE NRC AS
BARGAINING REPRESENTATIVE. HOWEVER, NTEU CHAPTER 208 WAS ORGANIZED WITH
REPRESENTATIVES APPOINTED BY THE NATIONAL OFFICE OF NTEU.
/7/ COUNSEL FOR THE GENERAL COUNSEL RELIES UPON RESPONDENT'S ALLEGED
FAILURE TO DISCUSS OR IMPOSE BULLETIN BOARD RESTRICTIONS UPON NTEU
DURING AN INFORMAL MEETING ON MAY 2, 1978 (TR. 21, 22, 24, 351, GENERAL
COUNSEL'S BRIEF AT 2). HOWEVER, IT IS CLEAR THAT MERE SILENCE ON THESE
POINTS, FOLLOWING AS IT MUST HERE, PRIOR INSISTENCE UPON NTEU BEING
GIVEN TREATMENT EQUAL TO THAT GIVEN AFGE, MAY NOT BE CONSTRUED AS A
GRANT OF UNRESTRICTED USE OF NTEU BULLETIN BOARD SPACE.
COUNSEL FOR THE GENERAL COUNSEL ACKNOWLEDGED THAT THE COLLECTIVE
BARGAINING AGREEMENT WAS THE ONLY EVIDENCE OF ANY AFGE-NRC PRACTICE
REGARDING THE USE OF BULLETIN BOARDS (TR. 126); AND THAT IF THE NRC
GAVE NTEU MORE ACCESS THAN AFGE, SUCH CONDUCT WOULD HAVE INVOLVED A
POSSIBLE UNFAIR LABOR PRACTICE (TR.
/8/ THIS PHRASE REFERS TO THE MEETING CONVENED BY THE DEPARTMENT OF
LABOR.
/9/ LETTER DATED FEBRUARY 21, 1979 ADDRESSED TO MR. VINCENT CONNERY,
PRESIDENT, NATIONAL TREASURY EMPLOYEES UNION BY DANIEL J. DONOGHOE,
DIRECTOR, OFFICE OF ADMINISTRATION, NRC. THE UNFAIR LABOR PRACTICE
CHARGE WAS SUBSEQUENTLY DISMISSED BY THE AUTHORITY (RESPONDENT EXHIBIT
8). IN SO DOING, THE ACTING REGIONAL DIRECTOR NOTED THAT "(I)T IS
AXIOMATIC THAT AN AGENCY CANNOT UNILATERALLY CHANGE ESTABLISHED
NEGOTIATED TERMS AND CONDITIONS OF EMPLOYMENT WHERE AN EXCLUSIVE
REPRESENTATIVE EXISTS. FURTHER, IT IS MY VIEW THAT ESTABLISHED TERMS
AND CONDITIONS OF EMPLOYMENT, INCLUDING A NEGOTIATED GRIEVANCE
PROCEDURE, SURVIVE EVEN IN THE FARE (SIC) OF THE EXPIRATION OF A
COLLECTIVE-BARGAINING AGREEMENT. THUS, THE AGENCY CORRECTLY REJECTED
THE EMPLOYEE'S GRIEVANCE WHEN IT WAS FILED UNDER THE AGENCY GRIEVANCE
PROCEDURE, RATHER THAN THE NEGOTIATED GRIEVANCE PROCEDURE WHICH
REMAINED
IN EFFECT UNTIL REPLACED BY COLLECTIVE BARGAINING BETWEEN THE AGENCY AND
THE NATIONAL TREASURY EMPLOYEES UNION."
/10/ MR. THOMAS DID NOT REPUDIATE THIS VERSION, BUT MERELY FAILED TO
RECALL ANY CONVERSATIONS DURING THIS PERIOD (TR. 154-155).
/11/ IN ADDITION TO "OFFICIAL NRC BULLETIN BOARDS," OTHER BULLETIN
BOARDS WERE AVAILABLE TO NRC EMPLOYEES. THESE WERE CHARACTERIZED AS
"EMPLOYEE BULLETIN BOARDS." ALLEGATIONS HEREIN CONCERNING THE
DEVELOPMENT OF A PAST PRACTICE INVOLVING UNRESTRICTED USE OF BULLETIN
BOARDS BY NTEU RELATE SOLELY TO NTEU'S USE OF "OFFICIAL NRC BULLETIN
BOARDS."
/12/ THE EXACT PERIODS OF THE POSTINGS ARE NOT REFLECTED IN THE
RECORD. WITH MINOR EXCEPTIONS THE EXACT LOCATIONS OF SPECIFIC POSTINGS
WERE NOT ESTABLISHED. IT IS NOTED THAT THE COLLECTIVE BARGAINING
AGREEMENT REFLECTS NO REFERENCE TO THE WORD "CRITICAL" (JOINT EXHIBIT 3
AT 38).
/13/ RESPONDENT'S WITNESSES TESTIFIED TO THIS EFFECT. ALSO, THEY
WERE NOT AWARE OF ANY REMOVAL OF AN NTEU POSTING ON NTEU BULLETIN BOARD
SPACE FOR ANY REASON (TR. 36, 310-311, 336, 340).
/14/ COPIES OF GENERAL COUNSEL EXHIBITS 7, 8, 9, AND 10 WERE
REQUESTED BY REPRESENTATIVES OF THE NRC LABOR MANAGEMENT AND EMPLOYEES
RELATIONS BRANCH WHEN DISTRIBUTED (TR. 276-277, 302, 332). HOWEVER,
THERE WAS NO EVIDENCE THAT DISSEMINATION INVOLVED KNOWLEDGE OF THE
ACTUAL POSTING OF THESE DOCUMENTS, OR AWARENESS OF ANY CONDUCT VIOLATIVE
OF THE COLLECTIVE BARGAINING AGREEMENT.
/15/ IN VIEW OF THE FINDINGS OF FACT SET FORTH, IT IS UNNECESSARY TO
DETERMINE WHETHER ANY POSTING ACTUALLY CONTRAVENED THE PROVISIONS OF THE
COLLECTIVE BARGAINING AGREEMENT.