[ v06 p240 ]
06:0240(40)CA
The decision of the Authority follows:
6 FLRA No. 40
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
CLEVELAND, OHIO
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 37
Charging Party
Case No. 5-CA-308
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION AND ORDER IN THE
ABOVE-ENTITLED PROCEEDING CONCLUDING THAT THE UNFAIR LABOR PRACTICE
COMPLAINT, RELATING TO THE RESPONDENT'S ALLEGED VIOLATION OF SECTION
7116(A)(1) AND (5) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE), BE DISMISSED IN ITS ENTIRETY. THE GENERAL
COUNSEL AND THE CHARGING PARTY FILED EXCEPTIONS TO THE JUDGE'S DECISION
AND ORDER, AND THE RESPONDENT FILED AN OPPOSITION TO SUCH EXCEPTIONS.
THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2423.29) AND SECTION 7118 OF 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 IN THE CASE, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS.
AS MORE FULLY SET FORTH IN THE ATTACHED JUDGE'S DECISION, THE
RESPONDENT AND THE NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 37 (NTEU)
ARE CURRENTLY PARTIES TO A COLLECTIVE BARGAINING AGREEMENT. REVENUE
AGENT MARVIN JAFFE BECAME PRESIDENT OF NTEU, CHAPTER 37 IN EARLY OCTOBER
1979. SHORTLY AFTER, ON OCTOBER 11, 1979, JAFFE MET WITH HIS IMMEDIATE
SUPERVISOR, MR. LEONARD LURIE, FOR THE PURPOSE OF DISCUSSING THEIR
MUTUAL UNDERSTANDING OF THE COLLECTIVE BARGAINING AGREEMENT. THE
DISCUSSION CONCERNED, AMONG OTHER THINGS, THE USE OF IRS TYPEWRITERS BY
THE NTEU AND, THE ABILITY OF EMPLOYEE VISITORS TO COME INTO MR. JAFFE'S
WORK AREA TO TALK TO HIM ABOUT UNION BUSINESS. FOLLOWING THE MEETING,
MR. LURIE WROTE A MEMORANDUM TO JAFFE, SETTING FORTH MANAGEMENT'S
INTERPRETATION AND UNDERSTANDING OF THE CONTRACT. THE MEMORANDUM STATED
THAT IT WAS MANAGEMENT'S UNDERSTANDING THAT THE AGREEMENT DID NOT ALLOW
THE USE OF GOVERNMENT EQUIPMENT FOR PREPARATION OF UNION ADMINISTRATIVE
DOCUMENTS NOR VISITS IN THE WORK AREA FOR DISCUSSION OF UNION BUSINESS.
THE USE OF EQUIPMENT AND VISITS IN WORK AREA IS COVERED BY ARTICLES 6
AND 14 OF THE NEGOTIATED AGREEMENT, RESPECTIVELY. IN ESSENCE, ARTICLE 6
PROVIDES THAT CERTAIN NTEU OFFICERS, INCLUDING THE CHAPTER PRESIDENT,
ARE AFFORDED OFFICIAL TIME TO CONFER WITH EMPLOYEES ABOUT SEEKING
REMEDIAL RELIEF UNDER THE CONTRACT, PREPARE GRIEVANCES, INTERVIEW
WITNESSES, REVIEW DOCUMENTS NOT AVAILABLE DURING NONDUTY HOURS, AND
PREPARE RESPONSE TO PROPOSED DISCIPLINARY ACTIONS. ARTICLE 14
ESSENTIALLY PROVIDES THAT THE ACTIVITY WILL, UPON REQUEST, PROVIDE
MEETING ROOMS TO THE NTEU FOR THE PURPOSE OF PREPARING OR DISCUSSING A
GRIEVANCE FOR A MEETING WITH THE ACTIVITY, OR, FOR " . . . INFORMAL
DISCUSSIONS TO CARRY OUT THE GOALS AND OBJECTIVES OF E.O. 11491, AS
AMENDED."
THE COMPLAINT ALLEGES THAT THE RESPONDENT UNILATERALLY CHANGED
EXISTING CONDITIONS OF EMPLOYMENT BY PREVENTING NTEU USE OF RESPONDENT'S
EQUIPMENT AT THE ACTIVITY, AND BY PREVENTING THE NTEU'S OFFICERS FROM
HAVING VISITORS AT THEIR WORK LOCATIONS FOR REPRESENTATIONAL PURPOSES.
THE COMPLAINT ALLEGES A VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE
STATUTE BASED UPON THE RESPONDENT'S ALLEGED FAILURE TO AFFORD THE NTEU
NOTICE OR AN OPPORTUNITY TO BARGAIN CONCERNING THESE ALLEGED CHANGES.
IN HIS RECOMMENDED DECISION AND ORDER, THE JUDGE CONCLUDED THAT THE
ACTIONS OF MANAGEMENT OFFICIALS IN PREVENTING THE USE OF EQUIPMENT
AND/OR DISCUSSION OF UNION BUSINESS IN THE WORK AREA OF THE NTEU
OFFICERS WAS MERELY A REAFFIRMATION OF THE EXISTING POLICY WITHIN THE
CLEVELAND DISTRICT OFFICE, AND THEREFORE, NOT A CHANGE IN THE CONDITIONS
OF EMPLOYMENT. IN REACHING THIS CONCLUSION, HE NOTED THAT THE NTEU'S
FAILURE TO COMPLY WITH RESPONDENT'S POLICY MAY NOT, WITHOUT MORE, BE
USED AS PROOF OF THE EXISTENCE OF A PAST PRACTICE AT VARIANCE TO THAT
POLICY. THUS, THE JUDGE FOUND THAT THE GENERAL COUNSEL FAILED TO
SUSTAIN HIS BURDEN OF PROVING THE EXISTENCE OF A PAST PRACTICE ALLOWING
THE NTEU USE OF RESPONDENT'S EQUIPMENT, OR ALLOWING EMPLOYEES TO MEET
WITH THE CHAPTER PRESIDENT AT HIS WORKSITE IN THE ABSENCE OF EVIDENCE
THAT ESTABLISHED THAT MANAGEMENT WAS AWARE OF, AND CONDONED, THESE
PRACTICES.
THE AUTHORITY AGREES WITH THE JUDGE'S CONCLUSION THAT THE ACTIONS OF
MANAGEMENT OFFICIALS IN PREVENTING THE USE OF EQUIPMENT AND THE
PREVENTION OF DISCUSSION OF UNION BUSINESS DID NOT VIOLATE SECTION
7116(A)(1) AND (A)(5) OF THE STATUTE, BUT WAS MERELY A REAFFIRMATION OF
THE EXISTING POLICY WITHIN THE CLEVELAND DISTRICT, AND, THEREFORE NOT A
CHANGE IN THE CONDITIONS OF EMPLOYMENT. /1/ IN THIS REGARD, AS THE
JUDGE FOUND, AND THE RECORD DEMONSTRATES, THE GENERAL COUNSEL DID NOT
ESTABLISH BY A PREPONDERANCE OF EVIDENCE THAT MANAGEMENT HAD KNOWLEDGE
OF, OR CONDONED, EITHER THE USE OF TYPEWRITERS OR OTHER AGENCY EQUIPMENT
FOR PREPARATION OF UNION ADMINISTRATIVE BUSINESS, OR OF VISITORS IN THE
WORK AREA OF THE CHAPTER PRESIDENT FOR DISCUSSION OF UNION BUSINESS.
/2/ ACCORDINGLY, THE AUTHORITY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDATION TO DISMISS THE COMPLAINT HEREIN.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 5-CA-308 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., JULY 9, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ DECISION FOLLOWS --------------------
SANDRA LEBOLD, ESQUIRE
FOR THE GENERAL COUNSEL
JAMES E. ROGERS, ESQUIRE
FOR RESPONDENT
LYNN SYLVESTER, ESQUIRE
FOR THE CHARGING PARTY
BEFORE: ELI NASH, JR.
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, 97
STAT. 1191, 5 U.S.C. 7101 ET SEQ., AND THE RULES AND REGULATIONS ISSUED
THERE UNDER.
THE COMPLAINT ALLEGED THAT THE DEPARTMENT OF TREASURY, INTERNAL
REVENUE SERVICE, CLEVELAND, OHIO, HEREIN CALLED RESPONDENT OR, IRS,
VIOLATED 5 U.S.C. 7116(A)(1) AND (5), HEREIN CALLED THE STATUTE, BY
PREVENTING NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 37, HEREIN CALLED
THE UNION, ACCESS TO AND USE OF RESPONDENT'S EQUIPMENT AT THE ACTIVITY
WITHOUT FURNISHING THE UNION WITH NOTICE AND/OR AN OPPORTUNITY TO
BARGAIN CONCERNING SUCH CHANGES AND BY PREVENTING UNION OFFICERS FROM
HAVING VISITORS AT THEIR WORK LOCATIONS WITHOUT FURNISHING THE UNION
WITH NOTICE AND/OR AN OPPORTUNITY TO BARGAIN CONCERNING SUCH CHANGES.
AN ANSWER WAS FILED BY RESPONDENT WHICH DENIED THE COMMISSION OF ANY
UNFAIR LABOR PRACTICES.
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED IN
CLEVELAND, OHIO, ON MAY 6 AND 7, 1980. ALL PARTIES WERE REPRESENTED BY
COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT
EVIDENCE, AND EXAMINE AND CROSS-EXAMINE WITNESSES. BOTH RESPONDENT AND
THE GENERAL COUNSEL FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED. BASED
UPON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATIONS OF THE
WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND ORDER.
FINDINGS OF FACT
AT ALL TIMES MATERIAL HEREIN THE PARTIES WERE GOVERNED BY A
MULTI-DISTRICT AGREEMENT ENTERED INTO BY THE INTERNAL REVENUE SERVICE
AND THE NATIONAL TREASURY EMPLOYEES UNION.
IN EARLY OCTOBER 1979, SHORTLY AFTER BEING ELECTED PRESIDENT OF
CHAPTER 37 OF THE UNION, MR. MARVIN JAFFE MET WITH HIS GROUP MANAGER,
MR. LEONARD LURIE FOR THE PURPOSE OF DISCUSSING THEIR MUTUAL
UNDERSTANDING OF THE MULTI-DISTRICT AGREEMENT. THE DISCUSSION CENTERED
AROUND THE USE OF CHAPTER BANK TIME, THE USE OF IRS TYPEWRITERS, OF THE
FEDERAL TELECOMMUNICATIONS SYSTEM AND AS TO VISITORS COMING INTO THE
AREA TO TALK TO MR. JAFFE ABOUT UNION MATTERS. THE USE OF EQUIPMENT AND
VISITORS IS COVERED BY ARTICLES 6 /3/ AND 14 OF THE MULTI-DISTRICT
AGREEMENT, RESPECTIVELY.
ARTICLE 14 OF THE MULTI-DISTRICT AGREEMENT PROVIDES THAT RESPONDENT
WOULD SUPPLY CERTAIN FACILITIES AND SERVICES TO THE UNION. THE USE OF
TYPEWRITERS WAS NOT PROVIDED FOR IN THE MOST RECENT COLLECTIVE
BARGAINING AGREEMENT, OR IN THE TWO EARLIER NEGOTIATED AGREEMENTS
BETWEEN THE PARTIES. THE FACILITIES INCLUDED IN ARTICLE 14 WHICH WERE
TO BE MADE AVAILABLE TO THE UNION INCLUDED TELEPHONES, BULLETIN BOARDS,
FILE CABINETS, SPACE, AND CERTAIN MATERIALS, PUBLICATIONS AND SERVICES.
FOLLOWING THE MEETING, MR. LURIE WROTE A MEMORANDUM TO JAFFE SETTING
FORTH RESPONDENT'S UNDERSTANDING OF THE AGREEMENT. THE MEMORANDUM
DATED
OCTOBER 11, 1979 STATED IN PART:
IT IS UNDERSTOOD THAT YOUR UNION ACTIVITIES (DURING WORK TIME) WILL
BE RESTRICTED TO THE
TIMES WHEN YOU ARE USING BANK TIME, ADMINISTRATIVE TIME FOR MEETINGS
WITH MANAGEMENT, OR OTHER
TIMES SPECIFICALLY GRANTED BY THE AGREEMENT. I WILL NOT ALLOW
VISITORS IN THE WORK AREA FOR
DISCUSSIONS OF UNION BUSINESS. ALSO, TELEPHONE DISCUSSIONS REGARDING
UNION ADMINISTRATIVE
BUSINESS WILL BE VERY LIMITED. NO TIME WILL BE ALLOWED FOR INTERNAL
UNION AFFAIRS.
AND THAT:
ALSO, THE USE OF GOVERNMENT TYPEWRITERS OR OTHER EQUIPMENT FOR THE
PREPARATION OF UNION
ADMINISTRATIVE DOCUMENTS IS NOT PERMITTED.
AFTER RECEIPT OF THE MEMORANDUM, MR. JAFFE MADE NO REQUEST TO BARGAIN
CONCERNING ANY OF THE MATTERS IN THE MEMORANDUM OR THE MATTERS DISCUSSED
DURING THE OCTOBER 11, 1979 MEETING.
THE RECORD INDICATES THAT IN POLICING OF RESTRICTED PROVISIONS OF THE
COLLECTIVE BARGAINING AGREEMENTS, PARTICULARLY ARTICLE 14, WAS
CONSIDERED BY RESPONDENT TO BE A PROBLEM OF SIGNIFICANCE THROUGHOUT THE
CLEVELAND DISTRICT. IN SEEKING TO CLARIFY ITS POSITION, RESPONDENT
CONDUCTED A SERIES OF TRAINING SESSIONS TO INSTRUCT ITS MANAGERS
CONCERNING THE SPECIFIC FACILITIES AND SERVICES WHICH MIGHT BE MADE
AVAILABLE TO THE UNION UNDER THE TERMS OF THE AGREEMENT. WITH RESPECT
TO POLICING THE SYSTEM ENUNCIATED BY THE COLLECTIVE BARGAINING
AGREEMENT, MANAGEMENT TOOK THE POSITION THAT THE UNION WAS AWARE OF THE
LIMITATIONS APPROVED IN THOSE AGREEMENTS, AND THAT ALL CLEVELAND
DISTRICT MANAGERS SHOULD ENFORCE THE POLICY. HOWEVER, IT WAS FELT THAT
COMPLIANCE WITH THE RESTRICTED PROVISIONS IN THE AGREEMENT, RATHER THAN
SUSPICION AND DISTRUST, SHOULD BE ANTICIPATED. RESPONDENT'S MANAGERS
WERE NOT GIVEN AUTHORITY TO MODIFY THE TERMS OF THE COLLECTIVE
BARGAINING AGREEMENT.
THE RECORD REVEALED THAT THE UNION CONTINUED TO USE TYPEWRITERS,
PHOTOCOPYING EQUIPMENT AND MAYBE OTHER OFFICE EQUIPMENT NOT AUTHORIZED
BY THE COLLECTIVE BARGAINING AGREEMENT, AT THE CLEVELAND DISTRICT OFFICE
DURING THE YEARS FOLLOWING EXECUTION OF THE FIRST COLLECTIVE BARGAINING
AGREEMENT, DESPITE THE LIMITATIONS IMPOSED BY THE CONTRACTUAL PROVISIONS
AND THE POLICY OF THE RESPONDENT. THERE IS CONSIDERABLE EVIDENCE OF
ACTUAL USE OF AND CIRCUMSTANTIAL EVIDENCE TENDING TO INDICATE THAT
MANAGERS AT THE CLEVELAND DISTRICT OFFICE LEVEL WOULD HAVE BEEN IN A
POSITION TO OBSERVE USE OF SUCH EQUIPMENT, BUT NO EVIDENCE OF LIMITED
APPROVAL OF THE PRACTICE DURING THE PERIOD BEFORE AND AFTER EXECUTION OF
THE INITIAL COLLECTIVE BARGAINING AGREEMENT BETWEEN THE PARTIES, THE
RECORD ESTABLISHED AND RESPONDENT RELIES IN PART ON THE FACT THAT, THE
JOINT CHAPTER WAS AWARE OF THE CLEVELAND DISTRICT OFFICE POLICY.
RESPONDENT ASSERTS THAT THE LOCAL CHAPTERS WERE MADE AWARE OF ITS
POLICIES THROUGH THE JOINT CHAPTER.
FORMER CHAPTER 37 PRESIDENT, MR. MIKE RUGGIERI, TESTIFIED THAT DURING
1973 AND 1974 CO-WORKERS "ALWAYS" CAME INTO HIS WORK AREA FOR DISCUSSION
OF UNION BUSINESS. WHILE THE FREQUENCY OF THESE VISITS VARIED, IT WAS
NOT UNUSUAL FOR EMPLOYEES TO VISIT HIS WORK AREA TWO OR THREE TIMES IN A
DAY. HE TESTIFIED THAT HE DID NOT USE TYPEWRITERS BECAUSE HE COULD NOT
TYPE. HOWEVER, HE HAD OTHER OF RESPONDENT'S EMPLOYEES USE ITS
TYPEWRITERS ON BEHALF OF THE UNION ON MANY OCCASIONS. THE UNION'S
NEWSLETTER WAS REGULARLY TYPED ON RESPONDENT'S TYPEWRITER BY AN
EMPLOYEE
WHO WAS ON BREAK TIME, LUNCH TIME, AND BEFORE OR AFTER WORK.
MR. JAFFE TESTIFIED THAT HE USED RESPONDENT'S TYPEWRITERS DURING THE
NORMAL COURSE OF HIS DUTY. HE TESTIFIED THAT ALTHOUGH HE USED A
TYPEWRITER OCCASIONALLY TO TYPE UNION BUSINESS, HE AT NO TIME REQUESTED
PERMISSION TO DO SO FROM MANAGEMENT PERSONNEL. FURTHER, MR. JAFFE
TESTIFIED THAT NO RESTRICTIONS WERE PLACED ON THE PRACTICE OF USING
RESPONDENT'S TYPEWRITERS OR HAVING VISITORS IN HIS WORK AREA UNTIL
SHORTLY BEFORE THE OCTOBER 11, 1979 MEETING.
FORMER JOINT COUNCIL CHAIRMAN, MR. WALTER KERR, TESTIFIED THAT HE AT
TIMES USED RESPONDENT'S TYPEWRITERS TO TYPE UNION BUSINESS. HOWEVER, HE
TESTIFIED THAT HE DID NOT REQUEST PERMISSION TO USE SUCH EQUIPMENT FOR
UNION PURPOSES.
MR. MIKE SWEENEY, A FORMER CHIEF STEWARD FOR THE JOINT CHAPTERS,
TESTIFIED THAT HE USED RESPONDENT'S TYPEWRITERS TO TYPE UNION BUSINESS.
ACCORDING TO SWEENEY, AT NO TIME DID HE REQUEST PERMISSION FROM
MANAGEMENT TO USE THE TYPEWRITERS FOR THAT PURPOSE. HOWEVER, MR. BYRON
WAGNER, A FORMER SUPERVISOR OF MR. SWEENEY, TESTIFIED THAT ON NUMEROUS
OCCASIONS HE INFORMED MR. SWEENEY THAT THE UNION'S USE OF GOVERNMENT
FACILITIES AND EQUIPMENT IN THE SPECIAL PROCEDURES STAFF AREA WAS
SPECIFICALLY PROHIBITED. MR. WAGNER RELATED TWO OCCASIONS IN WHICH
SPACE WAS IN FACT REQUESTED BY MR. SWEENEY BUT SUCH REQUESTS WERE
DENIED.
AN EX-IRS EMPLOYEE, MS. DOROTHY FINGEAN, TESTIFIED THAT SHE TYPED
UNION BUSINESS ON RESPONDENT'S TYPEWRITERS. ALSO, SHE TESTIFIED THAT ON
THE AVERAGE SHE MAY HAVE TYPED ONE OR TWO ITEMS A MONTH, BUT ALSO THERE
WERE SOME MONTHS SHE DID NO TYPING AT ALL FOR THE UNION. IN THE NORMAL
COURSE OF HER DUTY SHE TYPED RESPONDENT'S BUSINESS ON A DAILY BASIS FOR
VARIOUS INDIVIDUALS IN THE GROUP TO WHICH SHE WAS ASSIGNED. SHE HAD AT
NO TIME ASKED FOR PERMISSION TO USE RESPONDENT'S TYPEWRITERS FOR UNION
PURPOSES. ACCORDING TO MS. FINGEAN THERE WAS NO WAY FOR MANAGEMENT TO
DISTINGUISH WHEN SHE WAS TYPING UNION BUSINESS OR TYPING RESPONDENT'S
BUSINESS. SHE ALSO COULD NOT CITE ANY SPECIFIC INSTANCES WHEN SHE HAD
USED RESPONDENT'S TYPEWRITERS FOR UNION BUSINESS WHICH WAS OBSERVED BY
ANY MANAGEMENT OFFICIAL.
RESPONDENT CALLED SEVERAL OF ITS MANAGEMENT PERSONNEL TO TESTIFY AS
TO THEIR UNDERSTANDING OF WHAT FACILITIES AND EQUIPMENT SHOULD BE MADE
AVAILABLE TO THE UNION UNDER THE COLLECTIVE BARGAINING AGREEMENT. WHILE
THESE INDIVIDUALS WERE NOT CERTAIN AS TO WHAT EQUIPMENT SHOULD BE MADE
AVAILABLE, NONE TESTIFIED THAT IRS TYPEWRITERS COULD BE USED BY THE
UNION OR THAT THEY EVER GAVE PERMISSION FOR SUCH USAGE.
WITH REGARD TO VISITS TO UNION REPRESENTATIVES' WORK AREAS, MIKE
SWEENEY, CHIEF STEWARD, TESTIFIED THAT HE HAD FREQUENT VISITS TO HIS
WORK AREA FROM EMPLOYEES COMING TO SEE HIM ON UNION BUSINESS IN HIS
OFFICIAL UNION CAPACITY. WALTER KERR ALSO TESTIFIED THAT EMPLOYEES
VISITED HIM FIVE OR SIX TIMES PER WEEK WITH REGARD TO UNION BUSINESS.
NEITHER SWEENEY OR KERR SOUGHT MANAGEMENT'S PERMISSION TO ADDRESS THESE
EMPLOYEES ON UNION BUSINESS IN THEIR WORK AREAS.
ACCORDING TO MR. JAFFE, THE FIRST INDICATION OF A CHANGE IN
MANAGEMENT'S POSITION WITH REGARD TO UNION VISITS OCCURRED SHORTLY AFTER
OCTOBER 1, 1979 WHEN HE WAS ELECTED PRESIDENT OF CHAPTER 37. MR. JAFFE
TESTIFIED THAT HE DID NOT SEEK OR REQUEST PERMISSION FROM MANAGEMENT TO
CONDUCT INFORMAL DISCUSSIONS IN COMPLIANCE WITH THE MULTI-DISTRICT
AGREEMENT BECAUSE, THE AMOUNT OF TIME TAKEN WAS MINIMAL AND "IT WOULD
HAVE TAKEN LONGER TO HUNT UP A MANAGER, GO IN TO SEE HIM AND ASK
PERMISSION THAN IT WOULD HAVE TAKEN FOR THE DISCUSSION TO TAKE PLACE."
MR. LURIE TESTIFIED THAT HE TOLD MR. JAFFE THAT HE "FELT THAT PEOPLE
COMING INTO THE AREA, BECAUSE WE ARE IN AN OPEN AREA CONCEPT THAT IT WAS
DISRUPTIVE TO THE REST OF THE PEOPLE AND DO NOT FEEL IT WAS NECESSARY."
JAFFE OBJECTED TO LURIE'S POSITION BECAUSE HE FELT THAT THESE ACTIVITIES
WERE PAST PRACTICES IN THE CLEVELAND DISTRICT OFFICE.
THERE IS NO RECORD EVIDENCE THAT MANAGEMENT WAS AWARE OF THE
VISITATIONS FOR UNION PURPOSES PRIOR TO AUGUST 1979, WHEN MR. JAFFE WAS
FIRST REPRIMANDED FOR DISCUSSING UNION ACTIVITY IN THE WORK AREA. WITH
REGARD TO THE REPRIMAND, MR. WAGNER TOLD MR. JAFFE HE WOULD NOT CONDUCT
SUCH DISCUSSIONS IN HIS WORK AREA, BUT THAT THEY SHOULD "BE CONDUCTED IN
AN AREA WHERE THE GRIEVANT WAS ASSIGNED." FURTHERMORE, IT WAS INDICATED
TO MR. JAFFE THAT THESE DISCUSSIONS SHOULD BE HELD TO A MINIMUM.
FINALLY, THE AGREEMENT PROVIDES UNDER ARTICLE 14 THAT SPACE WILL BE
PROVIDED FOR "CONDUCTING INFORMAL DISCUSSIONS." THUS, THERE IS NO RECORD
EVIDENCE TO SUPPORT THE PROPOSITION THAT THE UNION EITHER SOUGHT OR WAS
GIVEN PERMISSION TO CONDUCT ITS BUSINESS IN A WORK AREA.
DISCUSSION AND CONCLUSIONS
AT THE OUTSET, RESPONDENT URGED THAT THE ALLEGATIONS OF THE COMPLAINT
INVOLVING THE UNION'S USE OF EQUIPMENT BE DISMISSED ON THE BASIS OF RES
JUDICATA. RESPONDENT RELIES ON A DECISION ISSUED BY ADMINISTRATIVE LAW
JUDGE SCALZO IN DEPARTMENT OF TREASURY REVENUE SERVICE CLEVELAND, OHIO,
3 FLRA NO. 106 DISMISSING SUCH ALLEGATIONS IN RESPONDENT'S TOLEDO POST
OF DUTY, WHICH IS A PART OF THE CLEVELAND DISTRICT OFFICE. SUBSEQUENT
OF THE HEARING IN THIS MATTER, JUDGE SACLZO'S DECISION WAS AFFIRMED BY
THE FEDERAL LABOR RELATIONS AUTHORITY. HOWEVER, IN ITS DECISION AND
ORDER THE AUTHORITY NOTED THAT IT WAS RELYING ONLY ON "INCIDENTS WHICH
OCCURRED AT OR INVOLVED INDIVIDUALS IN THE TOLEDO POST OF DUTY." HAVING
DONE SO, THE AUTHORITY LEFT OPEN FOR CONSIDERATION WHETHER PAST
PRACTICES HAD BEEN ESTABLISHED IN OTHER PARTS OF THE CLEVELAND DISTRICT
AND INDEED IN THE CLEVELAND DISTRICT OFFICE. SINCE IT IS CLEAR THAT NO
DECISION HAS BEEN MADE ON THE ISSUES INVOLVING THE CLEVELAND DISTRICT
OFFICE THE MATTER IS STILL LITIGABLE AND RES JUDICATA DOES NOT APPLY.
ALTHOUGH THIS MATTER INVOLVES ADDITIONAL ALLEGATIONS, THE BASIC ISSUE
REGARDING USE OF EQUIPMENT IS WHETHER, UNDER THE CIRCUMSTANCES, A
PRACTICE EXISTED WITH RESPECT TO THE USE OF TYPEWRITERS AND OTHER OFFICE
EQUIPMENT (NOT SPECIFICALLY AUTHORIZED IN THE COLLECTIVE BARGAINING
AGREEMENT), AND IF SO, WHETHER THE RESPONDENT UNILATERALLY TERMINATED
THE PAST PRACTICE WITHOUT PROVIDING THE UNION WITH AN OPPORTUNITY TO
BARGAIN CONCERNING WHETHER OR NOT THE PRACTICE SHOULD BE DISCONTINUED.
IN ADDITION, THE ISSUE OF WHETHER OR NOT A PAST PRACTICE EXISTED WITH
RESPECT TO DISCUSSION OF UNION BUSINESS IN WORK AREAS IS CONSISTENT WITH
THE PAST PRACTICES OF THE CLEVELAND DISTRICT OFFICE.
ASIDE FROM THE AUTHORITY'S DECISION IN DEPARTMENT OF TREASURY,
INTERNAL REVENUE SERVICE, CLEVELAND, OHIO, SUPRA., SEVERAL OTHER
INTERNAL REVENUE SERVICE CASES EXIST WHICH INVOLVE THE SAME OR SIMILAR
CONTRACT, LANGUAGE AND THE ESTABLISHMENT OF PAST PRACTICES. THESE
CASES, U.S. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, NEW
ORLEANS, LOUISIANA, A/SLMR NO. 1034 (1978) AND U.S. DEPARTMENT OF
TREASURY, INTERNAL REVENUE SERVICE, SOUTHWEST REGION, APPELLATE BRANCH
OFFICE, NEW ORLEANS, LOUISIANA, A/SLMR NO. 1153 (1978) ARE HEAVILY
RELIED ON BY THE GENERAL COUNSEL TO ESTABLISH A THEORY OF VIOLATION IN
THIS MATTER WITH REGARD TO THE USE OF EQUIPMENT, SPECIFICALLY
TYPEWRITERS. WITH RESPECT TO THE ABOVE CITED CASES, IT IS NOTED THAT
THE PAST PRACTICE THEREIN WAS CLEARLY ESTABLISHED AND THAT THE USE OF
TYPEWRITERS WAS PERMITTED BY AGENCY MANAGEMENT. IN FINDING VIOLATIONS
IN THOSE MATTERS, THE ADMINISTRATIVE LAW JUDGES INVOLVED ALL FOUND
IMPLICIT KNOWLEDGE AND APPROVAL OF THE SPECIFIC USE OF THE TYPEWRITERS
FOR UNION BUSINESS. IT WAS CLEARLY ESTABLISHED ON THE RECORD IN THOSE
MATTERS THAT MANAGEMENT WAS AWARE OF AND CONDONED THE USE OF ITS
FACILITIES AND EQUIPMENT FOR A RATHER EXTENSIVE PERIOD OF TIME.
THERE IS NO EVIDENCE IN THIS RECORD TO SUPPORT A FINDING THAT THE USE
OF TYPEWRITERS OR OTHER AGENCY EQUIPMENT WAS ALLOWED BY AGENCY
MANAGEMENT. WHILE THE EVIDENCE IMPLIES THAT THERE WAS SUCH USAGE
ALLOWED PRIOR TO THE PARTIES ENTERING INTO THE MULTI-DISTRICT AGREEMENT
IN 1972, THE EVIDENCE OF USE THEREAFTER IS QUITE THE CONTRARY. IT IS,
HOWEVER, SHOWN THAT THE DISTRICT DIRECTORS OF THE CLEVELAND DISTRICT
HAVE ALWAYS INDICATED THAT THE UNION WOULD BE ABLE TO USE ONLY THOSE
FACILITIES AND SERVICES IDENTIFIED IN THE COLLECTIVE BARGAINING
AGREEMENT AND THAT SUCH OTHER USE WAS PROHIBITED. THE RECORD DISCLOSED
THAT MR. SWEENEY, THE CHIEF STEWARD FOR THE CLEVELAND DISTRICT, WAS
AWARE THAT THERE WAS A PROHIBITION AGAINST THE USE OF TYPEWRITERS IN THE
CLEVELAND DISTRICT. IN MY VIEW, WHERE SUCH A HIGH UNION OFFICIAL HAS
KNOWLEDGE OF THE POLICY IT IS UNNECESSARY TO RELY AS RESPONDENT DOES IN
ITS BRIEF, ON AN AGENCY RELATIONSHIP TO ESTABLISH THAT ITS POLICY WAS IN
EXISTENCE AND KNOWN TO THE UNION. IT IS ALSO CLEARLY SHOWN FROM THE
RECORD THAT MANAGEMENT CONDUCTED TRAINING WHICH INDICATED TO ITS
MANAGERS AND SUPERVISORS THAT THE UNION IN THE CLEVELAND DISTRICT WOULD
ONLY BE ABLE TO USE THOSE FACILITIES SET OUT IN THE AGREEMENT BETWEEN
THE PARTIES. ALL INDICATIONS ARE THAT NOT ONLY WAS THIS INFORMATION
PASSED ON TO JOINT CHAPTER OFFICIALS BUT, INDEED CLEVELAND LOCAL UNION
OFFICIALS, INCLUDING MR. SWEENEY, WERE MADE AWARE OF MANAGEMENT'S
POSITION CONCERNING THE USE OF TYPEWRITERS.
WHILE THE RECORD REFLECTS THAT THE UNION USED THE EQUIPMENT REGULARLY
IT DOES NOT ESTABLISH THAT MANAGEMENT WAS AWARE OF OR CONDONED THIS
USAGE. MANY OF THE INDIVIDUALS WHO TESTIFIED REGULARLY USED TYPEWRITERS
AND OTHER EQUIPMENT IN THEIR OFFICIAL DUTIES AND BECAUSE MANAGEMENT
APPARENTLY RELIED HEAVILY UPON VOLUNTARY COMPLIANCE THERE WOULD BE NO
REASON TO FIND THAT IT HAD OBSERVED THE PRACTICE OF USING ITS FACILITIES
OR EQUIPMENT FOR OTHER THAN OFFICIAL BUSINESS. FROM THE RECORD IT IS
REASONABLE FOR MANAGEMENT TO ASSUME THAT THE UNION HAD RESPONDED TO ITS
REQUEST TO DISCONTINUE USE OF EQUIPMENT. THERE IS NO INDICATION THAT
THE UNION DISAGREED WITH RESPONDENT'S MARCH 1978 ANNOUNCEMENT REGARDING
THE USE OF EQUIPMENT MAKING IT APPEAR THAT THE UNION ACQUIESCED IN THIS
ANNOUNCEMENT. THIS RECORD ALSO INDICATES THAT MANAGEMENT EXPECTED
VOLUNTARY COMPLIANCE AND, AS IN JUDGE SCALZO'S OBSERVATION, THAT:
FINALLY, IN ADDITION TO THE FACT THAT THE RECORD EVIDENCES NO SHOWING
OF ACTUAL AWARENESS
OF THE PAST PRACTICE . . . THERE WAS NO SHOWING OF CIRCUMSTANCES
WHICH REASONABLY WOULD HAVE
LED TO AWARENESS. IT WOULD HAVE NOT BEEN UNUSUAL, BASED UPON THE
FACTS BROUGHT OUT, FOR
MANAGEMENT TO HAVE REMAINED IGNORANT OF THE PRACTICE. . . .
THIS APPLIES EQUALLY IN THE INSTANT MATTER. DISTRICT LEVEL AND
DISTRICT OFFICE OFFICIALS IN CLEVELAND WERE IN CONTACT WITH BOTH JOINT
CHAPTER AND LOCAL CHAPTER REPRESENTATIVES CONCERNING THE MATTER. IN
THEIR DIRECT DEALINGS WITH THESE INDIVIDUAL UNION REPRESENTATIVES IT
SHOULD HAVE BEEN CLEAR THAT THERE WAS A SPECIFIC PRACTICE NOT TO USE
SUCH EQUIPMENT. IN SUCH CIRCUMSTANCES, IT CANNOT BE ESTABLISHED, AS
ARGUED BY THE GENERAL COUNSEL, THAT THERE WAS AGREEMENT TO THE USE OF
THE EQUIPMENT, OR AN ESTABLISHED PRACTICE OF EQUIPMENT USE WHICH
MANAGEMENT WAS AWARE OF AND ACQUIESCED IN. ON THE CONTRARY, THE RECORD
INDICATES THAT RESPONDENT'S EFFORTS WERE DIRECTED AT PREVENTING THE
UNION FROM USING FACILITIES AND EQUIPMENT BEYOND THOSE SPECIFIED IN THE
MULTI-DISTRICT AGREEMENT.
REGARDING THE DISCUSSION OF UNION BUSINESS IN WORK AREAS, THERE IS
ALSO NO INDICATION THAT MANAGEMENT WAS AWARE PRIOR TO AUGUST 19, 1979,
THAT SUCH DISCUSSIONS OR VISITATIONS WERE TAKING PLACE. FURTHERMORE,
WHEN MANAGEMENT OFFICIALS BECAME AWARE THEY IMMEDIATELY TOOK STEPS TO
PREVENT OR CURTAIL FURTHER DISCUSSIONS. FOR EXAMPLE, MR. JAFFE WAS
REPRIMANDED ON AUGUST 19, 1979 FOR ENGAGING IN SUCH A DISCUSSION IN HIS
WORK AREA. NEITHER DO I FIND THAT THE EXISTENCE OF A WORK LOG GAVE ANY
FURTHER KNOWLEDGE TO RESPONDENT THAT SUCH DISCUSSIONS WERE TAKING PLACE
SINCE IT APPEARS FROM THE RECORD THAT THE LOG WAS KEPT FOR OTHER
PURPOSES.
FINALLY, ALTHOUGH THE EVIDENCE SHOWS THAT INDIVIDUAL MANAGERS MAY
HAVE DEVELOPED KNOWLEDGE OF THE UNION'S ACTIONS HAD THEY BEEN MORE
OBSERVANT OR INQUIRED MORE THOROUGHLY INTO THE NATURE OF VISITS TO UNION
REPRESENTATIVES, THIS WOULD NOT PROVIDE A BASIS FOR FINDING THAT SUCH
MANAGERS WERE IN FACT AWARE OF THE PRACTICES ALLEGED TO HAVE EXISTED.
THUS, I WOULD NOT FIND THE FACT THAT VISITS TO UNION REPRESENTATIVES IN
THEIR WORK AREAS STANDING ALONE AND WITHOUT PERMISSION OF RESPONDENT'S
OFFICIALS CONSTITUTED ANY KNOWLEDGE OF OR EXISTENCE OF A PAST PRACTICE.
THE ACTIONS OF MANAGEMENT OFFICIALS IN PREVENTING THE USE OF
EQUIPMENT AND THE PREVENTION OF DISCUSSION OF UNION BUSINESS WAS MERELY
A REAFFIRMATION OF THE EXISTING POLICY WITHIN THE CLEVELAND DISTRICT
OFFICE. THE REAFFIRMATION OF AN EXISTING POLICY ACCORDING TO EXISTING
CASE LAW IS NOT A CHANGE IN CONDITIONS OF EMPLOYMENT. DEPARTMENT OF
NAVY, MARE ISLAND NAVAL SHIPYARD, VALLEJO, CALIFORNIA, A/SLMR NO.
736(1976); ALABAMA NATIONAL GUARD, MONTGOMERY, ALABAMA, A/SLMR NO. 895
(1977). THEREFORE, THE UNION'S FAILURE TO COMPLY WITH RESPONDENT'S
EXPRESSION OF ITS POLICY MAY NOT, WITHOUT MORE, BE USED AS A BASIS FOR
PROOF OF THE EXISTENCE OF A PAST PRACTICE IN JUSTIFYING THE USE OF
FACILITIES OR USE OF WORK AREAS FOR DISCUSSION OF UNION BUSINESS.
BASED ON THE FOREGOING IT IS UNNECESSARY TO ADDRESS OTHER ISSUES
RAISED IN DEFENSE BY RESPONDENT.
HAVING FOUND AND CONCLUDED THAT RESPONDENT DID NOT VIOLATE THE
STATUTE AS ALLEGED, IT IS RECOMMENDED THAT THE FEDERAL LABOR RELATIONS
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. 5-CA-308 BE AND
IT HEREBY IS DISMISSED.
ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
DATED: SEPTEMBER 15, 1980
WASHINGTON, D.C.
--------------- FOOTNOTES: ---------------
/1/ SEE ALSO, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REGION V.,
CHICAGO, ILLINOIS, 4 FLRA NO. 98(1980).
/2/ SEE, U.S. NUCLEAR REGULATORY COMMISSION, 6 FLRA NO. 9(1981).
/3/ ARTICLE 6 READS IN PERTINENT PART:
B. A STEWARD, CHIEF STEWARD, OR CHAPTER PRESIDENT OF JOINT COUNCIL
CHAIRMAN WHEN
APPLICABLE 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 THE TERMS AND CONDITIONS OF THIS AGREEMENT.
C. 1. IN ADDITION TO THE TIME PROVIDED UNDER SUBSECTION B ABOVE, A
UNION STEWARD, CHIEF
STEWARD OR CHAPTER PRESIDENT OR JOINT COUNCIL CHAIRMAN, WHEN
APPLICABLE, MAY UTILIZE OFFICIAL
TIME HEREINAFTER REFERRED TO AS CHAPTER BANK TIME, AS PROVIDED IN 2
BELOW FOR THE FOLLOWING:
(A) PREPARING GRIEVANCES;
(B) INTERVIEWING WITNESSES, EXCEPT AS MAY BE PROVIDED IN F BELOW;
(C) REVIEWING DOCUMENTS WHICH ARE NOT AVAILABLE DURING NON-DUTY
HOURS, EXCEPT AS MAY BE
PROVIDED IN F BELOW;
(D) PREPARING A REPLY TO A NOTICE OF PROPOSED DISCIPLINARY ACTION OR
A DISCIPLINARY ACTION
APPEAL OR FOR ANY MATTER FOR WHICH A STATUTORY APPEALS PROCEDURE
(OTHER THAN THOSE SPECIFIED
IN F BELOW) EXISTS.