[ v12 p658 ]
12:0658(130)CA
The decision of the Authority follows:
12 FLRA No. 130
DEPARTMENT OF ENERGY
Respondent
and
LOCAL 2195, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
Complainant
Assistant Secretary
Case No. 22-09580(CA)
DECISION AND ORDER
This matter is before the Authority pursuant to the Acting Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
The functions of the Assistant Secretary of Labor for
Labor-Management Relations, under Executive Order 11491, as amended,
were transferred to the Authority under section 304 of Reorganization
Plan No. 2 of 1978 (43 F.R. 36040), which transfer of functions is
implemented by section 2400.2 of the Authority's Rules and Regulations.
The Authority continues to be responsible for the performance of these
functions as provided in section 7135(b) of the Federal Service
Labor-Management Relations Statute (the Statute).
Upon consideration of the entire record in this case, including the
parties' contentions, the Authority finds:
On February 20, 1971, Local 2195, American Federation of Government
Employees, AFL-CIO (the Union) became the exclusive representative for a
unit of professional and nonprofessional employees at the Headquarters
of the Atomic Energy Commission (AEC). Pursuant to the Energy
Reorganization Act of 1974, the AEC was abolished, and the Energy
Research and Development Administration (ERDA) and the Nuclear
Regulatory Commission (NRC) were created. In 1974, ERDA and the Union
entered into a collective bargaining agreement, which was renewed in
1975.
Pursuant to the Department of Energy Reorganization Act of 1977, ERDA
was abolished on September 30, 1977, and all ERDA employees were
transferred to the newly-created Department of Energy (the Respondent).
At the same time, employees from the Federal Energy Administration
(FEA), the Federal Power Commission (FPC), and groups of employees from
other agencies were transferred to the Respondent. Due to the
commingling of employees from several bargaining units, the parties
herein, as well as the National Treasury Employees Union (NTEU), which
had represented FEA employees, filed three petitions jointly, all of
which expressed a good faith doubt as to the appropriateness of the
units which had existed at the Respondent's predecessor agencies. While
these petitions were pending, the Union continued to represent DOE
employees and was accorded by the Respondent all rights established by
its 1975 contract with ERDA.
On October 13, 1978, pursuant to Executive Order 11491, as amended,
the Assistant Secretary of Labor for Labor-Management Relations found
that the FEA and ERDA headquarters bargaining units had ceased to be
appropriate as a result of the 1977 reorganization, and that a new unit
consisting of all the Respondent's headquarters employees, excluding the
employees of the Federal Regulatory Commission (FRC), would be
appropriate. He directed an election in the new unit. U.S. Department
of Energy, 8 A/SLMR 1150. On October 20, 1978, the Respondent informed
the Union that its 1975 collective bargaining agreement covering ERDA
employees was terminated as a result of the Assistant Secretary's
decision. As a consequence, dues withholding was discontinued and the
Union lost the use of official time and official services and facilities
for labor relations purposes, including the use of bulletin boards,
office space, and inter-office mail. On November 8, 1978, the Union
filed a motion for a temporary restraining order and permanent
injunction in the U.S. District Court for the District of Columbia. The
motion for a temporary restraining order was denied by Judge Oliver
Gasch on November 13, 1978, and the Union's request for injunctive
relief also was denied by Judge Gasch in a decision dated December 7,
1978. (American Federation of Government Employees, Local 3765 v.
Schlesinger, No. 78-2129.)
Thereafter, the instant unfair labor practice complaint was filed by
the Union alleging that the Respondent violated section 19(a)(1), (2),
(5) and (6) of Executive Order 11491, as amended, by unilaterally
terminating the parties' collective bargaining agreement. Following the
Regional Director's issuance of a notice of hearing, the parties entered
into a stipulation of facts and the case was thereafter transferred to
the Authority for decision.
A preliminary issue is raised by the Respondent's contention that the
District Court's December 7, 1978 denial of the Union's request for
injunctive relief is res judicata, thereby preventing the Authority from
making a finding on the merits herein. The Authority rejects this
contention. The only question before the District Court was whether the
Respondent's cancellation of the Union's representational and
contractual privileges constituted a sufficient basis for a preliminary
injunction and permanent declaratory and injunctive relief. The
District Court did not resolve the question of whether the Respondent's
conduct constituted an unfair labor practice in violation of section
19(a)(1), (2), (5) and (6) of Executive Order 11491, as amended, as
alleged in the complaint before the Authority. Indeed, this question
must be resolved solely by the Authority inasmuch as those matters still
pending before the Assistant Secretary of Labor for Labor-Management
Relations at the time the Statute became effective were transferred to
the Authority for decision, as noted above.
With respect to the merits of the unfair labor practice complaint,
the Authority concludes that the Respondent acted in violation of
section 19(a)(1) and (5) of the Executive Order, as alleged. Thus, the
Authority previously held in a case decided under the Executive Order,
U.S. Department of the Navy, Naval Air Engineering Center, Lakehurst,
New Jersey, 3 FLRA 568 (1980), that following a reorganization and
during the pendency of a representation petition, as here, an agency
must continue to recognize the exclusive representative and adhere to
the terms of any prior negotiated agreement to the maximum extent
possible, until any questions concerning representation raised by virtue
of the reorganization have been resolved. In the present case, the
stipulated record makes it clear that the Respondent withdrew
recognition from the Union and failed to adhere to the requirements of
its negotiated agreement with the Union to the maximum extent possible
in violation of section 19(a)(1) and (5) of the Order, upon its receipt
of the Assistant Secretary's decision in U.S. Department of Energy, 8
A/SLMR 1150 (1978), but prior to final resolution of the representation
issues raised therein. /1/
ORDER /2/
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, it is hereby ordered that
the Department of Energy 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, and
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, as 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
collective bargaining agreement, to the maximum extent possible, until
the representation matter is resolved.
(b) Post at its Washington, D.C. headquarters facilities, copies of
the attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms they shall be signed by
an authorized official and shall be posted and maintained for 60
consecutive days thereafter in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure that such
Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., August 25, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
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, and
refuse to adhere to the terms of our negotiated agreement with the
exclusive representative, to the maximum extent possible, until the
representation matter is resolved. WE WILL NOT in any like or related
matter interfere with, restrain or coerce our employees in the exercise
of their rights assured by Executive Order 11491, as amended. WE WILL,
after a reorganization and during the pendency of a representation
matter, maintain recognition of any exclusive representative of our
employees, and adhere to the terms of any prior collective bargaining
agreement, to the maximum extent possible, until the representation
matter is resolved.
(Agency)
Dated: . . . By: (Signature) (Title) 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 a with its
provisions, they may communicate directly with the Regional Director,
Region III, Federal Labor Relations Authority, whose address is: P.O.
Box 33758, Washington, D.C. 2033-0758, and whose telephone number is:
(202) 653-8507.
--------------- FOOTNOTES$ ---------------
/1/ In view of the foregoing conclusion, the Authority finds it
unnecessary to decide whether the Respondent also violated section
19(a)(2) and (6) of the Order, as alleged.
/2/ In conformity with Sec. 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 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 of the Statute or the result which
would be reached by the Authority if the case had arisen under the
Statute rather than the Executive Order.