[ v20 p324 ]
20:0324(35)CA
The decision of the Authority follows:
20 FLRA No. 35
U.S. NUCLEAR REGULATORY COMMISSION
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 3-CA-40391
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Thereafter, the Respondent filed exceptions
to the Judge's Decision, and the General Counsel and the Charging Party
filed oppositions to the Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
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 the entire record, the Authority hereby adopts the
Judge's findings, conclusions, and recommended Order as modified.
In agreement with the Judge, the Authority finds that the Respondent
violated section 7116(a)(1) and (5) of the Statute by its failure to
provide the Union with prior notice of its decision to detail bargaining
unit employees slated for eventual reassignment from the Clinch River
Breeder Reactor Program Office so as to afford the Union the opportunity
to request bargaining concerning procedures and appropriate arrangements
for employees adversely affected by those details. /1/ See United
States Department of Treasury, Bureau of Alcohol, Tobacco and Firearms,
Washington, D.C. and Central Region, 16 FLRA No. 73(1984); and U.S.
Department of Treasury, Bureau of Alcohol, Tobacco and Firearms,
Washington, D.C. and its Central Region, 16 FLRA No. 74(1984).
The Authority further adopts the Judge's conclusion that the
information requested by the Union was necessary for the purposes sought
within the meaning of section 7114(b)(4) of the Statute, and that the
Respondent therefore violated 7116(a)(1), (5) and (8) of the Statute as
alleged in the complaint when it refused to furnish the Union with the
requested information. See Army and Air Force Exchange Service (AAFES),
Fort Carson, Colorado, 17 FLRA No. 92(1985).
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Nuclear Regulatory Commission shall:
1. Cease and desist from:
(a) Detailing Nuclear Regulatory Commission bargaining unit employees
represented exclusively by the National Treasury Employees Union, in
furtherance of a decision to effect abolishment of the Nuclear
Regulatory Commission's Clinch River Breeder Reactor Program Office,
without first notifying the exclusive representative and affording it
the opportunity to request negotiations concerning procedures and
appropriate arrangements for employees adversely affected by any such
details.
(b) Failing and refusing to furnish to the National Treasury
Employees Union, the exclusive representative of its employees,
information requested in a letter dated April 23, 1984, addressed to
Greg Benoit, Chief, Labor Relations Branch, Office of Administration,
Nuclear Regulatory Commission, by Teresa S. Barnhart, Stewart, National
Treasury Employees Union, Chapter 208, for the purpose of enabling the
National Treasury Employees Union to represent Nuclear Regulatory
Commission bargaining unit employees with respect to negotiations
relating to procedures and appropriate arrangements for employees
adversely affected by the abolishment of the Clinch River Breeder
Reactor Program Office.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request, bargain with the National Treasury Employees Union,
the exclusive representative of its employees, with respect to
procedures and appropriate arrangements for employees adversely affected
by the detailing of Nuclear Regulatory Commission bargaining unit
employees in furtherance of a decision to effect the abolishment of the
Nuclear Regulatory Commission's Clinch River Breeder Reactor Program
Office.
(b) Furnish to the National Treasury Employees Union, the exclusive
representative of its employees, to the extent it has not previously
done so, information requested in a letter dated April 23, 1984
addressed to Greg Benoit, Chief, Labor Relations Branch, Office of
Administration, Nuclear Regulatory Commission, by Teresa S. Barnhart,
Steward, National Treasury Employees Union, Chapter 208.
(c) Post at its Washington, D.C. metropolitan area facilities,
wherever bargaining unit employees are located, 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 the
Executive Director for Operations, Nuclear Regulatory Commission, or a
designee, 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 insure that said Notices are not
altered, defaced, or covered by any other material.
(d) 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., September 26, 1985
/s/ HENRY B. FRAZIER III
Henry B. Frazier III, Acting
Chairman
/s/ WILLIAM J. MCGINNIS JR
William J. McGinnis, Jr., 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 detail Nuclear Regulatory Commission bargaining unit
employees represented exclusively by the National Treasury Employees
Union, in furtherance of a decision to effect abolishment of the Nuclear
Regulatory Commission's Clinch River Breeder Reactor Program Office,
without first notifying the exclusive representative, and affording it
the opportunity to request negotiations concerning procedures and
appropriate arrangements for employees adversely affected by any such
details.
WE WILL NOT fail or refuse to furnish to the National Treasury
Employees Union, the exclusive representative of our employees,
information requested in a letter dated April 23, 1984, addressed to
Greg Benoit, Chief, Labor Relations Branch, Office of Administration,
Nuclear Regulatory Commission, by Teresa S. Barnhart, Steward, National
Treasury Employees Union, Chapter 208, for the purpose of enabling the
National Treasury Employees Union to represent Nuclear Regulatory
Commission bargaining unit employees with respect to negotiations
relating to procedures and appropriate arrangements for employees
adversely affected by the abolishment of the Clinch River Breeder
Reactor Program Office.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, bargain with the National Treasury Employees
Union, the exclusive representative of our employees, with respect to
procedures and appropriate arrangements for employees adversely affected
by the detailing of Nuclear Regulatory Commission bargaining unit
employees in furtherance of a decision to effect the abolishment of the
Nuclear Regulatory Commission's Clinch River Breeder Reactor Program
Office.
WE WILL furnish to the National Treasury Employees Union, the
exclusive representative of our employees, to the extent we have not
previously done so, information requested in a letter dated April 23,
1984, addressed to Greg Benoit, Chief, Labor Relations Branch, Office of
Administration, Nuclear Regulatory Commission, by Teresa S. Barnhart,
Stewart, National Treasury Employees Union, Chapter 208.
(Activity)
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
with its provisions, they may communicate directly with the Regional
Director of the Federal Labor Relations Authority, Region III, whose
address is: 1111 - 18th Street, NW., Suite 700, P.O. Box 33758,
Washington, D.C. 20033-0758,
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 3-CA-40391
Neal E. Abrams, Esquire
Gregory E. Jackson, Esquire
For the Respondent
Bruce D. Rosenstein, Esquire
G. Phillip Boyer, Esquire
For the General Counsel
Before: LOUIS SCALZO
Administrative Law Judge and
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 referred to as "the
Statute"), and the Rules and Regulations issued thereunder.
The complaint alleged that the Nuclear Regulatory Commission
(Respondent or NRC) violated Sections 7116(a)(1) and (5) of the Statute
by unilaterally implementing details of bargaining unit employees slated
for eventual reassignment because of a NRC decision to abolish its
Clinch River Breeder Reactor (CRBR) Program Office, without affording
the National Treasury Employees Union (NTEU, Charging Party or Union)
prior notice and an opportunity to negotiate concerning the impact and
implementation of the change.
The complaint also alleged that the Respondent violated Sections
7114(b)(4), and 7116(a)(1), (5) and (8) of the Statute by refusing to
furnish information relating to the decision to abolish the CRBR Program
Office, specifically "information related to the detailing,
reassignment, or other personnel actions regarding bargaining unit
employees involved in Respondent's Clinch River Breeder Reactor Program
Office during the period March 1, 1984 to April 18, 1984."
As a defense to the complaint Counsel representing the Respondent
argued that on April 27, 1984, the Respondent and Charging Party entered
into a unilateral agreement which operated to resolve all matters
relating to the abolishment of the CRBR Program Office, including all
unfair labor practice issues arising out of the abolition of the CRBR
Program Office or related matters. /2/ The Respondent also contended
that the detailing of CRBR Program Office personnel was accomplished in
accordance with the provisions of a controlling collective bargaining
agreement, and that any issues posed relating to the details merely
involved differing and arguable interpretations of the collective
bargaining agreement. Lastly, the Respondent argued that the Charging
Party's Section 7114(b)(4) request for information was mooted by the
settlement agreement allegedly entered into on April 27, 1984; and that
failure to comply with the information request may not be used as a
basis for an unfair labor practice because the request did not meet the
requirements of Section 7114(b)(4)(B).
The parties were represented by counsel during the hearing and were
afforded full opportunity to be heard, adduce relevant evidence, and
examine and cross-examine witnesses. Based upon the entire record
herein, including exhibits and other relevant evidence adduced at the
hearing, /3/ and briefs filed by counsel representing the Respondent and
General Counsel, I make the following findings of fact, conclusions and
recommendations.
Findings of Facts
Abolishment of CRBR Program Office
The CRBR Program Office, an element of the Respondent's Office of
Nuclear Reactor Regulation, was initially established to interact with
the U.S. Department of Energy, the potential licensee for the CRBR
project. The Department of Energy had sought to have the project
licensed. However, the Respondent's task of reviewing the CRBR project
application became unnecessary when the United States Congress withdrew
financial support for the project in the Department of Energy's Fiscal
Year 1984 appropriation. As a result of the withdrawal of funding, and
the withdrawal of the Department of Energy application, the Respondent
determined that it would be necessary to abolish the CRBR Program Office
and transfer bargaining unit employees elsewhere. The workload in the
Office began winding down as early as December of 1983, and thereafter
involved only functions relating to phasing out the work of the Office.
Receipt of Notice of Decision and NTEU Request to Negotiate Impact
and Implementation
On March 12, 1984, management officials representing the Respondent
convened a meeting of CRBR Program Office employees to announce the
proposed abolishment of the Office. The Union was represented at the
meeting. Bargaining unit employees effected by the announcement were
apprised that a new organizational component would be established, and
were informed concerning the positions they would be assigned to in the
new unit. Teresa Barnhart, an NTEU Chapter 208 steward attending the
meeting, was informed by Respondent's representatives that the Union
would be formally apprised of the proposed change, and that the union
would be provided with an opportunity to negotiate concerning impact and
implementation.
By memorandum dated March 26, 1984, the Union was formally advised by
Greg Benoit, Chief of Respondent's Labor Relations Branch, that the
Respondent had decided to abolish the CRBR Program Office, and that
counterproposals should be submitted to the Respondent. (G.C. Exh. No.
2). The letter also advised that employees affected "are being
reassigned" to other positions. A staffing plan attached to the
memorandum reflected these changes. Among other things it indicated
that Margaret Shuttleworth, a bargaining unit employee classified as a
Licensing Assistant (301), would be detailed and reclassified as a
Requirements Assistant (303). The reclassification did not involve a
change in duties; however the Licensing Assistant (301) position was
considered a professional occupational series, whereas the Requirements
Assistant (303) position was classified as a clerical occupational
series. /4/
Article 5 of the collective bargaining agreement governing the labor
relations of the parties provided for at least ten days notice to the
Union and affected employees in situations involving "moves and
reorganizations." (R. Exh. No. 1 at page 4). Under the provisions of
this Article the NRC had an obligation to bargain concerning impact and
implementation in such cases. It clearly appeared from the record that
the terms of Article 5 were applicable in this case. The applicability
of this Article was recognized by the Respondent and was the reason for
the Respondent's transmission of notice on March 26, 1984. (Tr.
478-480). It was specifically admitted that, under the terms of Article
5, the Respondent was obligated to bargain on impact and implementation
concerning proposals to move and reorganize prior to effectuating such
proposals. (Tr. 494-495).
By memorandum dated March 28, 1984, Teresa Barnhart replied to Benoit
and requested limited negotiations concerning the proposal to change
Shuttleworth's occupational series. (G.C. Exh. No. 3). /5/
A few days after receipt of the March 28th bargaining request,
Paulette Weinrich, a Labor Relations Specialist working for Benoit,
phoned Barnhart and questioned the negotiability of the decision to
reclassify Shuttleworth. She informed Barnhart that the Respondent
would not enter into negotiations on the issue. /6/ Weinrich advised
Barnhart that if Barnhart had any other counter proposals she should
submit them. (Tr. 366-367).
On April 16, 1984, Weinrich advised Barnhart that April 16, 1984, was
the last day on which to offer NTEU counter proposals concerning
Respondent's proposal to abolish the CRBR Program Office, and that the
Union's earlier March 28th counter proposal was not negotiable. (Tr.
34-35, 75-76).
Barnhart responded by drafting additional counter proposals and
transmitting them to Benoit in a memorandum dated April 16, 1984. (G.C.
Exh. No. 4). /7/ The April 16th memorandum proposed that bargaining
unit employees affected by Respondent's proposal to abolish the CRBR
Program Office be given at least eight hours to prepare for relocation;
that telephone numbers previously assigned be retained; that employees
be moved into offices with windows if they previously occupied offices
with windows; that employees be assigned new offices with the amount of
space previously enjoyed; that "milestones" requirements be deferred
for affected employees in proportion to the period of time consumed by
the relocation; that employees be excused from all lifting and moving
duties; and lastly that employees be apprised of their rights, or any
agreement relating to the move ten days prior to physical relocation.
During Impact and Implementation Negotiations Union Becomes Aware of
NRC's Detailing of Employees
On April 18, 1984 representatives of NTEU and the NRC met to discuss
issues raised. The Respondent was represented by Richard Brady and
Paulette Weinrich. The Union was represented by Teresa Barnhart and
Martin Levy. These representatives discussed questions posed in the
Union's March 28 and April 16, 1984 memorandums to Benoit. (Tr. 37,
370). Among other things relating to the relocation of employees,
specific consideration was given to employee responsibility for packing,
(Tr. 38, 80, 164), to the identity of employees would have to complete
relocation, the new office space to be occupied, the retention of
telephone numbers, and the reclassification of Shuttleworth's
occupational series to a clerical position (Tr. 38, 80, 164, 328, 348,
368, 371-372). /8/
During the meeting Levy advised that it was rumored that affected
bargaining unit employees had already been detailed out of the CRBR
Program Office to new positions. He inquired of Brady whether or not
the rumor was true. Brady and Weinrich acknowledged that such details
had in fact been made for the purpose of implementing the abolition of
the CRBR Program Office, and stated that management had a legal right to
make such details under the terms of the collective bargaining agreement
(Tr. 38, 80-81, 165, 329, 423-424, 433). It was clearly established
that as of the date of the April 18, 1984 meeting, bargaining unit
employees had already been detailed to positions to which the Respondent
intended to reassign them at a later date. /9/ (Tr. 39, 80-81, 334-335,
372). However, the identities of employees detailed were not disclosed
to the Union at the meeting, nor were facts relating to the details.
(Tr. 335-336).
Disclosure of the detailing of employees with an intent to
permanently reassign them became a source of serious disagreement at the
meeting, and Union representatives advised Respondent's representatives
of their displeasure concerning the mooting out of some bargaining
issues relating to employee relocations. (Tr. 46, 372). The testimony
of Weinrich establishes that the meeting ended without agreement, and
with Respondent's representatives promising to prepare a series of
written proposals setting forth Respondent's attempt to resolve issues
confronting the parties. (Tr. 372). /10/ The parties agreed to meet
later to resolve issues posed. (Tr. 378). The Respondent contemplated
the possibility of the Union signed a document which the Respondent
intended to develop after the meeting. (Tr. 378).
The record disclosed that the detailing of bargaining unit employees
out of the CRBR Program Office actually commenced on or about March 12,
1984, the date on which the Union and bargaining unit employees were
orally advised of Respondent's intention to reorganize and relocate
employees; and that at least three bargaining unit members were
involved. These were Margaret Shuttleworth, Harold Holtz, and Jerry
Swift. (Tr. 220-221, 313). The Respondent acknowledged that the CRBR
Program Office would have been phased out of existence when the details
were terminated (Tr. 229), and that employees would not have returned to
the CRBR Program Office in any event. (Tr. 229-230). These employees
were ultimately reassigned to positions to which they were detailed.
(Tr. 241, 433).
The record revealed that the abolition of the CRBR Program Office had
an adverse impact upon bargaining unit employees affected by the
decision. In addition to the loss of jobs they had been performing,
Shuttleworth and Swift were transferred into less desirable work
locations. (Tr. 122-123, 158-159). Shuttleworth was assigned new
tasks, and had to learn new procedures and regulations with very little
training. (Tr. 160-161).
The Respondent claimed that the right to detail without notice to the
Union emanated from the provisions of Article 23 of the collective
bargaining agreement. (R. Exh. No. 1 at page 24). It was contended
that under the terms of Article 23 the Respondent possessed at least an
arguable right to detail without incurring a bargaining obligation, and
that an obligation to bargain impact and implementation did not arise in
this case until the Respondent determined that the affected employees
would be finally reassigned or transferred out of the CRBR Program
Office. Section 23.4 of Article 23 required "timely notice to an
employee in advance of his/her detail." However, Article 23 imposed no
specific duty on Respondent to give notice to the Union, and did not
otherwise address the Respondent's bargaining obligation. Article 24 of
the agreement dealing with the reassignment of employees imposed an
obligation to bargain on impact and implementation. It was contended
that the Respondent did meet the Article 24 bargaining obligation prior
to the final formal reassignment of affected employees.
The term "detail" was defined by Jesse L. Funches, Director of NRC's
Plan and Program Analysis Staff, as "a temporary change of assignment of
a person to different work or different position." (Tr. 203). He noted
that the primary difference between a detail and a reassignment was that
a detail was a "temporary assignment" to a position. (Tr. 230). It was
given a slightly different meaning by Benoit. He perceived a detail as
being temporary in nature with a limiting date, and stated that it would
"normally" be for less than 120 days. (Tr. 473). It was recognized
that the collective bargaining agreement did not define the term
"detail," and that Article 23 did not specifically provide for a waiver
of bargaining rights.
The Respondent's contention concerning the applicability of Article
23 is surprising in the light of the clear indication that the
Respondent deemed Article 5 to be applicable to the abolition of the
CRBR Program Office. As noted, Article 5, dealing with reorganizations
and moves, imposed upon Respondent the obligation to negotiate
concerning the impact and implementation of the decision to abolish the
CRBR Program Office. Also, evidence in the record clearly reflects that
the Respondent intended the relocation of employees to be permanent in
nature. Reference to detailing procedures in the collective bargaining
agreement was merely a device used to relocate these employees under
Article 23 without incurring a bargaining obligation. The term
"detail," as utilized by the Respondent, did not contemplate permanent
changes in assignment, and as indicated the record shows that permanency
was indeed intended in this case. /11/ This is evidenced by the
decision to abolish the CRBR Program Office, by Respondent's admission
in Benoit's March 26, 1984 letter that employees were "being
reassigned," and by Respondent's recognition of the applicability of
Article 5 of the collective bargaining agreement.
As a result of discussions during the April 18th meeting Weinrich
delivered a proposed memorandum of understanding to Barnhart on or about
April 19th (G.C. Exh. No. 5, Tr. 40, 373). /12/ The memorandum of
understanding purported to be Respondent's resolution of issues raised
during the April 18th meeting. (Tr. 373, 431-432). It was intended to
serve as a signed agreement resolving impact and implementation
bargaining issues. It provided for "reasonable official time to effect
the move;" imposed on NRC the responsibility to supply needed materials
and personnel to effect the move; required that advance notice of the
move be given to employees; made allowance for appropriate extensions
of time to complete required duties; and lastly, provided for the use
of a seniority system to assign preferred offices in situations where
efficiency of work operations would not be affected. Inasmuch as it was
acknowledged that relocations of bargaining unit employees had already
occurred as of April 18, 1984, it was apparent that the proposed
memorandum of understanding had limited significance. It dealt largely
with bargaining issues mooted out by the Respondent's detailing of
employees in anticipation of eventual reassignment to new positions.
/13/
Union's Submission of April 23, 1984 Information Request and Denial
of Request by Respondent
On April 23, 1984, the Union submitted an information request to the
Respondent in connection with ongoing negotiations relating to the
abolishment of the CRBR Program Office (G.C. Exh. No. 6). In a letter
addressed to Benoit by Barnhart, the Union requested the Respondent to
supply documents pertaining to personnel actions relating to employees
affected by the decision. The request was limited to the period March
1, 1984 through and including April 18, 1984, and the Respondent was
specifically informed that the information was "necessary in order to
complete the ongoing negotiations with respect to the abolishment of the
Clinch River Breeder Reactor Program Office." The record disclosed that
Barnhart wished to respond to the Respondent's proposed memorandum of
understanding submitted to the Union after the April 18th meeting. The
Union felt the need to know the particulars of employee relocations to
verify what management had admitted on April 18th concerning the
detailing of employees, and to determine exactly what had occurred
and/or was planned with respect to personnel actions relating to the
CRBR matter. (Tr. 41, 85-86, 89). Barnhart acknowledged at the hearing
that she suspected that unfair labor practices had occurred, and that
one purpose underlying the request related to the use of information
obtained to make Union determinations concerning suspected unfair labor
practices. (Tr. 89-90). However, the record revealed that at the time
of the information request the Respondent and the Union still faced
bargaining issues raised in the Union's April 16, 1984 proposals (G.C.
Exh. No. 4), and the proposed memorandum of understanding submitted to
the Union after the April 18th meeting (G.C. Exh. No. 5).
Following Respondent's receipt of the information request, Barnhart
was phoned by Jacqueline Jackson, a senior Labor Relations Specialist
employed by the Respondent. They discussed the question of whether the
Union would sign off on the proposed memorandum of understanding
transmitted to the Union by the Respondent, the content of the
memorandum of understanding, the Union's earlier proposal to retain
Margaret Shuttleworth's occupational series, and the negotiability of
the latter proposal. (Tr. 41-43, 45). Barnhart also informed Jackson
that the Union was waiting for the information requested to fashion "a
more solid proposal to management." (Tr. 42, 45). Barnhart also noted
that the information was needed in connection with possible unfair labor
practice charges. (Tr. 42, 90). Jackson advised Barnhart that the
reasons given for the needed information were inadequate. (Tr. 42).
On April 25 and 26, 1984, Barnhart discussed the same subject with
Weinrich. Barnhart reiterated her reasons for the information
requested, noting the need for specific information to frame a
bargaining proposal in response to the proposed memorandum of
understanding received by the Union from Respondent, and the need to
verify particulars relating to possible unfair labor practices
pertaining to the detailing of employees. (Tr. 45-46, 90-91, 375-376).
/14/
Unsuccessful Efforts to Complete Negotiations and Settle Anticipated
Unfair Labor Practice Charges
On or about April 24 or 25, 1984, Weinrich phoned James Thomas,
President of NTEU Chapter 208 to advise him of difficulty in resolving
issues relating to the information request, and problems encountered in
negotiations. She requested a meeting with Thomas. (Tr. 376-378, 558).
Thomas contacted Benoit concerning the matter and indicated his
intention to resolve problems arising out of negotiations, including
issues relating to anticipated unfair labor practice charges. (Tr. 484,
524). /15/ It was agreed that the parties would meet on April 27, 1984
for the purpose of resolving all issues presented.
On April 27, 1984, representatives of the Respondent and the Union
met. The Respondent was represented by Benoit, Brady and Weinrich, and
the Union was represented by Thomas, Levy and Barnhart. The discussion
generally pertained to issues raised at the earlier April 18th meeting.
(Tr. 329). A substantial portion of the meeting was devoted to the
reclassification of Licensing Assistant positions at the NRC, and the
Union's request that incumbents of all such NRC positions be retained in
the 301 occupational series (Tr. 97, 329-330, 484-485, 527). /16/ The
parties also addressed the Union's allegations concerning the premature
detailing of bargaining unit members, /17/ and issues remaining
concerning impact and implementation negotiations. (Tr. 166, 576-577).
The Union proposed that if Respondent would agree to the Union's
demands relative to the occupational series to be assigned to NRC
Licensing Assistants, other issues separating the parties "would go
away." (Tr. 330-331, 559). This phrase was not then or thereafter
explained in detail. However, it was acknowledged by Respondent's
witnesses that there were a number of other issues facing the parties.
These related to office space, demands for retention of telephone
numbers, access to windows, remaining questions concerning negotiations
pertaining to the abolishment of the CRBR Program Office, and problems
relating to alleged unfair labor practices. (Tr. 351, 380, 386,
485-486, 498, 527).
A tentative agreement was reached by the parties on the basis of the
Union proposal. However, Respondent's representatives made it very
clear that it would be necessary to obtain the approval of higher
management officials and NRC personnel specialists before agreeing to
retain all incumbent Licensing Assistants in the 301 occupational
series. (Tr. 330-331, 380, 587). It was understood that Respondent's
representatives would not promise a concession on this issue. (Tr. 440,
486). In addition, the record also disclosed that some "final details"
required resolution on the Union side of negotiations. (Tr. 559).
Respondent's representatives promised to contact Union representatives
after the meeting to advise concerning their efforts to obtain approval
of retention of the 301 occupational series for Licensing Assistants.
(Tr. 486, 527-528). Benoit acknowledged that the Respondent was under
an obligation "to get back to the Union." (Tr. 519).
The Union representatives understood that essentials of an agreement
had been reached by the parties, but that the agreement could not be
finalized until Respondent's representatives obtained approval of the
plan to retain the 301 occupational series for Licensing Assistants.
Thomas offered to draft a memorandum of understanding relating to the
matter, and to transmit it to Respondent's representatives. (Tr. 115,
166). The parties left the meeting with the understanding that Thomas
would prepare a memorandum for submission to management. (Tr. 559,
565). Both Brady and Benoit indicated that they wanted higher
management to review the draft memorandum of understanding. (Tr. 569).
/18/
Although the parties reached a tentative or conditional agreement
concerning issues relating to impact and implementation negotiations and
unfair labor practice allegations, it was made clear to Union
representatives attending the meeting that the Respondent would not in
any event, comply with the April 23, 1984 information request; and
further that final phases of the abolishment of the CRBR Program Office
would occur on May 6, 1984. A memorandum to this effect, dated April
27, 1984, was handed to Barnhart by Weinrich at the close of the April
27th meeting. (G.C. Exh. No. 8). It purported to base refusal of the
information request upon alleged failure of the Union to disclose why
the information sought was necessary to complete impact and
implementation negotiations, and claimed that Respondent's
representatives could not perceive how such information related to
issues raised by the negotiations. The memorandum also addressed the
point that the Respondent would insist upon impact and implementation
bargaining terms prescribed in Respondent's earlier proposed memorandum
of understanding delivered to the Union on or about April 19, 1984.
Presumably, the April 27th memorandum was delivered to provide guidance
to Thomas in his drafting of a memorandum of understanding to evidence
settlement of all issues. As will be hereinafter discussed, Thomas did
in fact draft a proposed memorandum of understanding which adopted the
NRC proposed memorandum of understanding despite the Union's earlier
vigorous insistence that an unfair labor practice had been committed by
Respondent's detailing of bargaining unit employees.
Immediately after the April 27th meeting Brady and Weinrich conferred
with Michael Fox, Chief of Respondent's Position Evaluation Section in
NRC Personnel about the possibility of retaining Licensing Assistants in
the 301 series in order to resolve unfair labor practice allegations,
and to effect agreement regarding the CRBR Program Office matter. Fox
agreed to retain incumbent Licensing Assistants in their 301
designations, and stated he would take the necessary steps to effectuate
the change. (Tr. 352-354, 360, 382).
Weinrich made an unsuccessful attempt to reach Thomas by phone on
April 27th (a Friday), to apprise him of Fox's decision to retain the
301 occupational series. On or about Monday, April 30th, she did reach
him, and advised him of developments. (Tr. 386-387). She did not
otherwise qualify Respondent's intent to comply with the Union demand.
Weinrich inquired about the draft memorandum of understanding that
Thomas was preparing, and he advised that he had forwarded it to
Barnhart. (Tr. 562-563, 571, 581-582). /19/
Thomas prepared a draft memorandum of understanding to formalize the
tentative agreement reached by the parties on April 27th. (R. Exh. No.
9). He forwarded it to Barnhart for her consideration and for
transmission to management. After obtaining Thomas' permission to make
certain changes Barnhart sent it to Respondent's representatives on May
2, 1984. (Tr. 114, 116). The one page document consisted of five
paragraphs. The first noted that it pertained to impact and
implementation bargaining relating to the abolition of the CRBR Program
Office. The second adopted in totality the terms of Respondent's
earlier April 19, 1984 proposed memorandum of understanding. The third
paragraph recognized management's intent to carry all incumbent NRC
Licensing Assistants in the 301 occupational series designation. The
fourth paragraph reflected a Union assurance that upon execution of the
document the Union would request the NTEU National Office to withdraw
"any Unfair Labor Practice charge which NTEU Chapter 208 has filed or
requested to be filed in regard to the CRBR abolition or related matters
. . . " The fifth paragraph indicated that the agreement would take
effect with the signatures of NRC and NTEU representatives. It was made
quite clear that the main elements of the draft memorandum dealt with
the Union's willingness to waive all of their fundamental interests in
the negotiations, including unfair labor practice allegations being
processed, in return for retention of the 301 occupational series for
NRC Licensing Assistants. (Tr. 575, 576, 581).
The document was received by NRC representatives on or about May 3 or
May 4, 1984, or during the first week of May. (Tr. 390-391, 452).
Management representatives reviewed it, and agreed with all provisions
other than paragraph 3, relating to retention of the 301 occupational
series. Respondent decided that it would be unwise to execute the
document because it would reflect that Respondent's representatives had
in fact negotiated concerning a matter which did not relate to a
condition of employment within the meaning of Section 7103(a)(14(B) of
the Statute. (Tr. 414, 488-489). However, it was very clear that the
management felt that the draft accurately represented what the parties
had agreed to at the April 27th meeting. (Tr. 488, 522). Nevertheless,
management's concern over reference to a classification issue generated
a management decision to object to the memorandum of understanding.
(Tr. 488, 521-522). Benoit instructed Weinrich to phone Barnhart and to
make known management's concern regarding "problems with entering into
this MOU." (Tr. 489). /20/
On the same day that Respondent received the memorandum of
understanding, Weinrich phoned Barnhart about the matter and advised of
management's refusal to sign the document. (Tr. 393, 452-453, 456-457).
Weinrich suggested working on an approach which did not involve
execution of a memorandum of understanding. (Tr. 393). /21/ A
suggestion by Weinrich that the Union accept a staffing plan indicating
that incumbent Licensing Assistants would retain the 301 Occupational
series was rejected by Barnhart as inadequate. (Tr. 394).
On the same day or within two days, Weinrich phoned Thomas to convey
management's position regarding the rejected memorandum of
understanding. (Tr. 394, 454-455, 457). They discussed the document
and Weinrich advised that management would not execute any agreement
concerning the matter. (Tr. 565-566). Thomas insisted upon execution
of the memorandum of understanding or some other agreement relating to
the subject. (Tr. 464-465). Thomas thereafter phone the National
Office of the NTEU and advised that it was not possible for the parties
to reach a settlement agreement. (Tr. 578-579). On May 3, 1984, the
charge underlying the complaint was served on the Respondent. /22/
Weinrich subsequently reported the impasse to senior Labor Relations
Specialist Jackson. (Tr. 539, 542). She informed Jackson that "she was
having some problems completing the CRBR (impact and implementation)
negotiations," and that Thomas had told Weinrich that he needed a
written document assuring the Union that the NRC would not change the
occupational series assigned to NRC Licensing Assistants. (Tr. 539).
Jackson phoned Thomas on or about May 8 or 9, 1984 to ascertain what
Thomas needed in order to resolve the matter. (Tr. 541-542). Thomas
states that he wanted a memorandum verifying the arrangement regarding
the 301 occupational series. (Tr. 539-540). Jackson expressed concern
over this suggestion, but indicated that she would endeavor to work it
out with Michael Fox, head of the Position Evaluation Section in the
Personnel Office. (Tr. 540). Jackson thereafter asked Fox if something
in writing could be supplied to Thomas. Fox then suggested the possible
use of an annotated staffing plan to indicate the 301 occupational
series assigned to incumbent Licensing Assistants, and furnished a copy
of an August 19, 1983 staffing plan to Jackson. (R. Exh. 12, Tr. 545).
The document in question lists the names of numerous employees, their
grades, and occupational series. The organizational assignments of
eleven incumbent Licensing Assistants are listed, including Margaret
Shuttleworth's assignment. Fox inserted asterisks after their
occupational series designations, and included notations indicating,
"Incumbency only for 301 series." The document was not signed by any
responsible NRC official and did not purport to bind the Respondent.
Jackson testified that she thereafter phoned Thomas and told him
about the staffing plan idea, and also inquired whether it would "take
care of everything." Jackson related that Thomas said that it would.
(Tr. 545). She mailed a copy of the staffing plan to Thomas on May 9,
1984. Thomas testified that he had asked either Jackson or Weinrich to
provide something to the Union to clearly indicate Margaret
Shuttleworth's actual assignment as a result of the reorganization, and
that he requested a staffing plan for this limited purpose only. He
denied that he ever agreed to accept a staffing plan in lieu of the
memorandum of understanding, and stated that he did not otherwise
indicate that the Union would withdraw the then pending unfair labor
practice charge, or that the staffing plan received would serve to
resolve all issue facing the parties. (Tr. 567-568, 582-583).
The record as a whole indicates very little or no reason to accept
Jackson's statements that Thomas accepted an annotated staffing plan in
full settlement of all the issues facing the parties. The document did
not represent an agreement between the NRC and the Union. In fact,
Respondent's representatives made it abundantly clear to both Thomas and
Barnhart that an agreement on the issue would not be acceptable to the
Respondent as the Respondent did not wish to indicate in any way that
the Respondent had negotiated concerning the classification of a
position. It is highly unlikely that the Union's continued insistence
upon a firm agreement would have been satisfied by an unsigned,
nonbinding staffing plan which Respondent refused to characterize as an
agreement. Uncontradicted evidence in the record indicates that the NRC
would have had an unfettered right to modify the staffing plan in
question. (Tr. 588).
Other elements in the record reflecting vagueness and inconsistency
in this area of interest do much to undermine Jackson's testimony. For
example, it seems unlikely that Jackson would have commenced
negotiations anew with Thomas, if as represented, Weinrich had in fact
resolved the issue in Weinrich's conversations with Thomas.
Accordingly, Thomas' version of the facts relating to the staffing plan
is credited rather than Jackson's.
Discussion and Conclusions
Under the provisions of Section 7106(a)(2)(A) of the Statute,
management officials have the authority "to hire, assign, direct,
layoff, and retain employees in (an) agency . . . " Section
7106(a)(2)(B) gives management officials the right "to assign work, . .
. and to determine the personnel by which agency operations shall be
conducted . . . " Also, Section 7106(b)(1) provides that "the numbers,
types, and grades of employees or positions assigned to any
organizational subdivision, work project, or tour of duty . . . " are
negotiable only at the election of the agency. However, Sections
7106(b)(2) and (b)(3) of the Statute impose an obligation on agencies to
provide an opportunity to negotiate with respect to procedures designed
for exercising these management rights, and with respect to arrangements
for employees adversely affected; that is, on the impact and
implementation of such management decisions.
In this case the decision to abolish the CRBR Program Office involved
the exercise of a management right within the purview of Section 7106.
The decision to do so involved an actual adverse impact upon bargaining
unit employees affecting in that at least two of the employees were
transferred into less desirable work locations. Margaret Shuttleworth
was required to perform new tasks with very little additional training.
She was also relegated to a clerical occupational series in place of a
previously assigned professional series. However, in light of the
provisions of Section 7103(a)(14)(B) of the Statute the proposed change
in Margaret Shuttleworth's occupational series would not have affected
"conditions of employment." The statutory duty to negotiate arises if a
change results in more than a de minimis impact upon unit employees or
such impact is reasonably foreseeable. U.S. Government Printing Office,
13 FLRA No. 39(1983), 13 FLRA 203. It is clear that the change involved
elements amounting to much more than a de minimis impact, and further
that such impact was reasonably foreseeable.
The Respondent argued that under the terms of a unilateral agreement
reached by the NRC and the Union prior to the filing of the charge, the
Union had an obligation to withdraw all unfair labor practice charges
arising out of impact and implementation negotiations pertaining to the
abolition of the CRBR Program Office. This argument must be rejected.
Sections 2423.9 and 2423.11 of the Authority's Rules and Regulations, 5
C.F.R. 2423.9 and 2423.11, require Regional Director approval of
requests to withdraw charges, or otherwise settle pending unfair labor
practice charges. United States Department of Treasury, Bureau of
Alcohol, Tobacco and Firearms, Washington, D.C. and Central Region, 16
FLRA No. 73(1984), 16 FLRA 506; United States Department of the
Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, D.C., and
Its Central Region, 16 FLRA No. 74(1984) 16 FLRA 533. Here the absence
of Regional Director approval would operate to vitiate such a defense.
Although the settlement agreement defense must be rejected for the
reason noted, it should also be stressed that even in the absence of the
regulatory scheme outlined, the defense would have no merit. Both the
NRC and the Union anticipated the execution of a signed memorandum of
understanding as evidence of an agreement relating to the matter. The
parties exchanged written proposals and proposed memorandums of
understanding during the course of negotiations. The subject matter
involved issues other than the retention of the 301 occupational series,
and the parties were in agreement concerning these other issues
contingent upon resolution of the occupational series to be assigned to
Licensing Assistants. There was no credible evidence that the parties
agreed to dispense with a signed memorandum of understanding. Both the
Union and the NRC indicated intense interest in the content of a
memorandum of understanding during and after the April 27, 1984 meeting.
However, a signed memorandum of understanding did not materialize
because the Respondent determined after the April 27th meeting that it
would not be possible to enter into a binding agreement calling for the
retention of the 301 occupational series for Licensing Assistants. In
light of the NRC position specifically ruling out agreement on this
point, the NRC's attempt to construct a unilateral settlement agreement
on the theory of unilateral contract is incongruous. /23/ In essence
the Respondent argues that Respondent's vague oral statement promising
retention of the 301 occupational series, coupled with a nonbinding
reference in a staffing plan to be supplied later, without more, was
sufficient to obligate the Union. On this theory Respondent attempts to
construct a waiver of all bargaining rights, and insists that the Union
was under a duty to withdraw any unfair labor practice charges. The
record reflects no evidence of such a waiver or promise on the part of
the Union.
Even assuming that the Union, under the theory advanced, anticipated
the actual performance of some act on the part of the NRC, the record
does not in fact reflect evidence that the Respondent acted in a manner
so as to assure retention of the 301 occupational series for incumbent
Licensing Assistants. Thus, even the contract theory relied upon
precludes the conclusion that an agreement was consummated. Jackson's
mailing of an annotated staffing plan to Thomas on May 9, 1984 did not
operate to commit the Respondent.
Counsel representing the Respondent also argues that the detailing of
bargaining unit employees without notice to the Union was permitted
under the provisions of Article 23 of the collective bargaining
agreement, and that the Respondent had at least an arguable right to
detail without negotiating. This argument has no merit because Article
23 was shown to be inapplicable to the factual situation presented in
this case. Evidence adduced from Respondent's witnesses revealed
Article 23 to be inapplicable in situations involving an intent to
reassign employees permanently. In this case the Respondent intended
permanent reassignments of bargaining unit members. The permanency of
the transfers was reflected by the fact that the CRBR Program Office was
slated to be abolished prior to completion of the details; by
Respondent's early announcement of the organizational component to which
they would be reassigned; by the eventual reassignment of bargaining
unit employees after detailing; and most importantly by the Respondent'
admission that the provisions of Article 5 of the collective bargaining
agreement were fully applicable to the decision to abolish the CRBR
Program Office. The provisions of Article 5 imposed a contractual
obligation to bargain concerning impact and implementation in situations
involving "moves and reorganizations. /24/ Inasmuch as the provisions
of Article 23 were not shown to be relevant to the detailing involved
herein, Respondent's defense based upon an interpretation of Article 23
is without merit. Department of the Navy, Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, 5 FLRA No. 48(1981), 5 FLRA 352; Department
of Health and Human Services, Food and Drug Administration, Region II,
New York Regional Laboratory, 16 FLRA No. 30(1984), 16 FLRA 182.
From the foregoing, and other evidence in the record, it is concluded
that Respondent's unilateral detailing of bargaining unit employees in
the CRBR Program Office was violative of Sections 7116(a)(1) and (5) of
the Statute.
Turning to portions of the complaint dealing with Respondent's
alleged refusal to furnish information, Section 7114(b)(4) of the
Statute provides in pertinent part:
"(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section shall
include the obligation--
* * * *
"(4) in the case of an agency, to furnish to the exclusive
representative involved, or its authorized representative, upon
request and, to the extent not prohibited by law, data--
"(A) which is normally maintained by the agency in the regular
course of business;
"(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining; and
"(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors,
relating to collective bargaining . . . "
The limited request for data filed with Respondent by the Union under
Section 7114(b)(4) related to documentation of personnel actions
pertaining to seven employees whose positions were affected by the
abolition of the CRBR Program Office. /25/ The request was designed to
effect the disclosure of documents reflecting personnel actions
generated during the period March 1, 1984 through April 18, 1984 for
these seven employees. /26/
The Respondent admitted receipt of the request for data, and
Respondent's rejection of the request is clearly reflected in the
record. Evidence adduced also shows that the data requested was
normally maintained by the agency; that it was reasonably available;
that it was necessary for full and proper discussion, understanding and
negotiation of subjects within the scope of collective bargaining; and
that it did not constitute guidance, advice, counsel, or training
provided for management officials or supervisors, relating to collective
bargaining. /27/
With respect to the necessity and relevance of the data, the Union's
April 23, 1984 request reflects that the Respondent was specifically
apprised that the information was needed by the Union "to complete
ongoing negotiations." This need was explained in more detail in
telephone conversations which Barnhart had with Weinrich and Jackson
following Respondent's receipt of the Union's request. At the April 18,
1984, negotiating session, the Union had been informed in general terms
concerning employee relocations already effectuated; however, the
specific details of administrative actions taken by the Respondent had
not been revealed to the Union. Barnhart informed Weinrich and Jackson
that the data was needed to fashion a more specific impact and
implementation bargaining proposal, and further that it was needed to
formulate determinations concerning possible unfair labor practices
associated with Respondent's detailing of bargaining unit employees
prior to completion of negotiations.
Bargaining issues relating to the impact and implementation of
Respondent's decision to abolish the CRBR Program Office were on the
negotiating table at the time of the request. This was evidenced by the
proposed memorandum of understanding submitted to the Union for
consideration on or about April 19, 1984. It is difficult or impossible
to perceive how the Union would have been in a position to continue
negotiating impact and implementation without an up to date
understanding of the nature of actions taken by the Respondent to
implement the decision. The data was necessary and relevant for the
purpose of continuing impact and implementation negotiations. /28/
The refusal to supply the information requested was a breach of a
duty imposed by Section 7114(b)(4) of the Statute, and also constituted
violations of Sections 7116(a)(1), (5) and (8).
Department of Health and Human Services, Social Security
Administration, Field Assessment Office, 12 FLRA No. 84(1983), 12 FLRA
390, 404.
Having found that the Respondent violated Sections 7116(a)(1)(5) and
(8) of the Statute, it is recommended that the Authority issue the
following Order: /29/
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Federal
Service Labor-Management Relations Statute, it is hereby ordered that
the Nuclear Regulatory Commission shall:
1. Cease and desist from:
(a) Detailing Nuclear Regulatory Commission bargaining unit
employees represented exclusively by the National Treasury
Employees Union, in furtherance of a decision to effect
abolishment of the Nuclear Regulatory Commission's Clinch River
Breeder Reactor Program Office, without first notifying the
exclusive representative, and affording it the opportunity to
negotiate concerning the impact and implementation of any such
details.
(b) Failing and refusing to furnish to the National Treasury
Employees Union, information requested in letter dated April 23,
1984, addressed to Greg Benoit, Chief, Labor Relations Branch,
Office of Administration, Nuclear Regulatory Commission, by Teresa
S. Barnhart, Steward, National Treasury Employees Union, Chapter
208, for the purpose of enabling the National Treasury Employees
Union to represent Nuclear Regulatory Commission bargaining unit
employees in impact and implementation negotiations relating to
the abolishment of the Clinch River Breeder Reactor Program
Office.
(c) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request bargain concerning the impact and
implementation of the detailing of Nuclear Regulatory Commission
bargaining unit employees in furtherance of a decision to effect
abolishment of the Nuclear Regulatory Commission's Clinch River
Breeder Reactor Program Office.
(b) Furnish to the National Treasury Employees Union, to the
extent Respondent has not previously done so, information
requested in letter dated April 23, 1984, addressed to Greg
Benoit, Chief, Labor Relations Branch, Office of Administration,
Nuclear Regulatory Commission, by Teresa S. Barnhart, Steward,
National Treasury Employees Union, Chapter 208.
(c) Post at its Washington, D.C. metropolitan area facilities
wherever bargaining unit employees are located, copies of the
attached notice marked "Appendix" on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms
they shall be signed by the Executive Director for Operations,
Nuclear Regulatory Commission, or his designee, and shall be
posted and maintained for 60 consecutive days thereafter in
conspicuous places, including all bulletin boards and other places
where notices are customarily posted. Reasonable steps shall be
taken to insure that said notices are not altered, defaced, or
covered by any other material.
(d) 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.
(s) LOUIS SCALZO
LOUIS SCALZO
Administrative Law Judge
Dated: March 12, 1985
Washington, DC
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
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT detail Nuclear Regulatory Commission bargaining unit
employees represented exclusively by the National Treasury Employees
Union, in furtherance of a decision to effect abolishment of the Nuclear
Regulatory Commission's Clinch River Breeder Reactor Program Office,
without first notifying the exclusive representative, and affording it
the opportunity to negotiate concerning the impact and implementation of
any such details.
WE WILL NOT refuse to furnish to the National Treasury Employees
Union, information requested in letter dated April 23, 1984, addressed
to Greg Benoit, Chief, Labor Relations Branch, Office of Administration,
Nuclear Regulatory Commission, by Teresa S. Barnhart, Steward, National
Treasury Employees Union, Chapter 208, for the purpose of enabling the
National Treasury Employees Union to represent Nuclear Regulatory
Commission bargaining unit employees in impact and implementation
negotiations relating to the abolishment of the Clinch River Breeder
Reactor Program Office.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL upon request bargain concerning the impact and implementation
of the detailing of Nuclear Regulatory Commission bargaining unit
employees in furtherance of a decision to effect abolishment of the
Nuclear Regulatory Commission's Clinch River Breeder Reactor Program
Office.
WE WILL furnish to the National Treasury Employees Union, to the
extent we have not previously done so, information requested in letter
dated April 23, 1984, addressed to Greg Benoit, Chief, Labor Relations
Branch, Office of Administration, Nuclear Regulatory Commission, by
Teresa S. Barnhart, Steward, National Treasury Employees Union, Chapter
208.
(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 of the Federal Labor Relations Authority, Region III,
whose address is: 1111 - 18th Street, NW., Suite 700, P.O. Box 33758,
Washington, DC 20033-0758, and whose telephone number is: (202)
653-8500.
--------------- FOOTNOTES$ ---------------
/1/ In this regard, it is noted that the Respondent does not take
exception to the Judge's finding that the change involved an impact, or
a reasonably foreseeable impact, that was more than de minimis.
/2/ Counsel representing the Respondent contends that the unilateral
agreement involved a promise on the part of the Union to withdraw unfair
labor practice allegations and waive any further bargaining rights
relating to Respondent's decision to abolish the CRBR Program Office, in
return for Respondent's forbearance in effecting reclassification of
certain bargaining unit positions.
In light of Respondent's assertion that all unfair labor practice
allegations raised in the complaint were resolved by a prior agreement
entered into by the Respondent and the Union, evidence relating to the
subject of settlement was considered solely for the limited purpose of
determining the merits of Respondent's defense on this ground, and not
as proof of the truth or falsity of any allegations set out in the
complaint. It is well settled that such evidence may not be utilized
for the latter purpose. U.S. Department of Air Force, Norton Air Force
Base, A/SLMR No. 261(1973), 3 A/SLMR 175; Directorate of Facility
Engineers, Fort Richardson, Alaska, A/SLMR No. 946(1977), 7 A/SLMR 1046;
General Services Administration, National Archives and Records Service,
A/SLMR No. 1113(1978), 8 A/SLMR 979; National Labor Relations Board and
its General Counsel and National Labor Relations Board, Region 29,
A/SLMR No. 1143, 8 A/SLMR 1197, aff'd, 1 FLRA No. 28(1979), 1 FLRA 220.
The fact that the parties involved offered such evidence or otherwise
acquiesced concerning its admission would not operate to modify the
rules outlined in authorities cited. Accordingly, such evidence and
argument relating thereto is considered a part of the record in this
case only for the limited purpose described.
/3/ Under authority reflected in 5 C.F.R. 2423.19(r), the following
errors in the hearing transcript are noted and corrected:
PAGE LINE CORRECTION
2 10 "114" to "113" 4 17 "and identify" to "an identity"
99 6 "share" to "shape"
99 10 delete "not"
99 11 "vain" to "vein"
155 8 "effects" to "offense"
205 18 "cross" to "direct"
205 23 "here" to "hear"
261 11 delete "of"
261 15 delete "of"
325 15 "of" to "or"
476 11 "INI" to "I and I"
479 13 "INI" to "I and I"
492 19 "INI" to "I and I"
556 13 delete "and"
582 18 "assistance" to "assistants"
584 1 "license" to "licensing"
584 2 "assistance" to "assistants"
584 6 "assistance" to "assistants"
584 13 "assistance" to "assistants"
585 20 "license and" to "licensing"
585 21 "assistance" to "assistants"
591 1 delete "which does you think pears and peaches in some
way."
592 18 "Administrative law" to "administrative law judges"
593 9 "The case is clearly whole" to "the cases are clear"
599 11 "solvent of" to "settlement of an"
601 23 "wasn't" to "was"
/4/ Under guidance from the Office of Personnel Management the
Respondent was gradually reclassifying all NRC Licensing Assistant
positions. Shuttleworth's position in the CRBR Program Office was
threatened by the reclassification effort when the decision was made to
abolish the Office. (Tr. 187, 345).
/5/ Barnhart advised Benoit that "(w)e wish to negotiate that Ms.
Shuttleworth be changed back into the professional 301 series. If we
cannot resolve this matter here, we will file an EEO complaint." (G.C.
Exh. No. 3, Tr. 78-79).
/6/ Respondent's position was appropriately based upon language used
in Section 7103(a)(14)(B) of the Statute which provides that matters
relating "to the classification of any position" are not included within
the meaning of the term "conditions of employment." The provisions of
Section 7103(a)(14)(B) are also reflected in Article 25, Section 25.1 of
the NRC - NTEU collective bargaining agreement.
/7/ The record established that these were received by Weinrich on
the next day, April 17, 1984. These counterproposals were accepted by
the Respondent and otherwise acted upon as timely filed. (Tr. 77-78,
367-368).
/8/ During the course of the hearing it became apparent that certain
material portions of documents initially identified and admitted without
objection as G.C. Exhibit 11 through 19 were not entirely legible.
These documents reflected personnel actions relating to employees
affected by the abolition of the CRBR Program Office. In an effort to
clarify the record the parties agreed to withdraw entirely this series
of documents, and to substitute a new series of relevant documents. The
new series is included in the record as G.C. Exhibits 11(a) through
17(f). (Tr. 262-272).
/9/ The record disclosed that Margaret Shuttleworth was not initially
detailed to the position she was finally assigned to as a result of the
reorganization.
/10/ Weinrich's testimony refers to the existence of issues remaining
relating to the relocation of employees. (Tr. 372).
/11/ Counsel representing the General Counsel did acknowledge that
there would have been no bargaining obligation if Respondent had
intended that employees return to the CRBR Program Office, and if the
details had in fact been temporary in nature. (Tr. 235).
/12/ Barnhart testified that the document was delivered to her on
April 19, 1984, and Weinrich testified recalled that it was sent a few
days after the April 18th meeting (Tr. 40, 373).
/13/ Following the April 18, 1984 meeting, and prior to April 27,
1984, Martin Levy contacted the NTEU National Office about filing an
unfair labor practice charge for alleged bad faith bargaining arising
out of the detailing of bargaining unit employees before completion of
negotiations. (Tr. 575-576, 578-580).
/14/ At one point in her testimony Weinrich testified that Barnhart
mentioned only that the information was needed to process an unfair
labor practice charge. (Tr. 439). However, at another point she
acknowledged that Barnhart referred to the fact that ongoing
"negotiations should be obvious." (Tr. 376). The record developed
clearly indicates that dual reasons for the information request were
spelled out in telephone conversations between Barnhart and Jackson, and
Barnhart and Weinrich.
/15/ A key purpose of the meeting was to resolve unfair labor
practice allegations relating to the detailing of employees and the
refusal to furnish information. (Tr. 577).
/16/ At the meeting the Union was advised that Margaret
Shuttleworth's occupational series had not yet been changed from 301 to
303. However, the Union did not know whether to accept this
representation in the absence of documentation relating to Respondent's
handling of the reorganization. (Tr. 100).
/17/ With respect to the detailing of employees the Union's concern
centered around the complaint that Barnhart and Levy were led into
negotiations on April 18th for the purpose of negotiating impact and
implementation when in fact bargaining unit employees had already been
detailed to positions to which the Respondent intended to reassign them.
(Tr. 576-577).
/18/ Respondent's representatives were either vague or could not
recall Thomas offering to prepare a draft memorandum of understanding
for consideration by Respondent's representatives. (Tr. 344, 354, 523).
It was acknowledged that under the circumstances it would not have been
"out of the ordinary" for Union representatives to prepare such a
document, and that most negotiations were resolved with a memorandum of
understanding. (Tr. 450, 523). The record also established that it was
the practice for the Union and NRC to utilize such documents in any
situation where either party insisted upon a memorandum of
understanding. In such cases oral agreements were not considered
binding. (Tr. 565). Here the evidence disclosed that both parties had
been operating on the assumption that a signed instrument would be
necessary to evidence an agreement.
/19/ Weinrich's testimony is extremely vague concerning whether there
was discussion of the draft memorandum of understanding which Thomas had
agreed to prepare. She acknowledged that Thomas insisted upon coverage
of the subject in some form of written agreement, but testified that she
could not recall discussing the draft memorandum of understanding with
Thomas. (Tr. 387, 441-445). Vague assertions by Weinrich that Thomas
agreed to accept a nonbinding notated staffing plan showing Respondent's
retention of the 301 occupational series, in lieu of a written agreement
designed to protect Union vital interests in the matter, were not at all
supported by the record, and these assertions were not credited.
/20/ The record clearly evidences that at this point Respondent's
representatives changed their position concerning the tentative
agreement reached on April 27th. NRC representatives determined that it
would not be possible to acknowledge in a signed document that NRC had
conceded on the classification issue.
/21/ As noted, Weinrich's testimony to the effect that Thomas
indicated an intent to accept a staffing plan showing retention of the
301 occupational series for incumbent Licensing Assistants, in lieu of
the memorandum of understanding, was not considered credible. Her
statements indicating an intent at this point to negotiate with Barnhart
to work out an alternative approach tends to indicate that even Weinrich
realized that the nonbinding staffing plan was not deemed to be a
sufficient quid pro quo for the resolution of issues raised in the
memorandum of understanding.
/22/ Weinrich's testimony to the effect that after receipt of the
charge Thomas informed her that the service of the charge was a mistake,
and that the charge would be withdrawn is not supported by the record.
Her testimony on this factual element is not credited.
/23/ Respondent's theory of unilateral contract is unclear at best.
A unilateral contract is one in which the offeror (ostensibly the Union
here) makes a promise and asks for the performance of an act by the
offeree (NRC) in return. The performance of the act by the offeree
generates an obligation or the part of the offeror to implement the
initial promise. Here the only evidence of a promise by the Union
consists of nonspecific statements to the effect that Respondent's
consent to retain the 301 occupational series would result in the
resolution of other issues in accordance with Respondent's previously
expressed desires. The construction of a specific offer calling for an
act of performance on the record outlined strains credulity. The NRC's
attempt to attach a special significance to statements made by Thomas
must be considered in the context of negotiations then in process. Up
to this point and throughout, the parties contemplated a written
memorandum of understanding, and it is clear that Thomas merely
perceived that the parties would find it simple to enter into memorandum
of understanding when the NRC indicated willingness to retain the 301
occupational series. Moreover, Thomas' statements to Respondent's
representatives did not in fact specifically call for NRC performance
for the purpose of generating a binding unilateral contract.
/24/ The terms of Article 23 of the collective bargaining agreement
do not specifically provide for a waiver of Union bargaining rights;
however, in view of the inapplicability of Article 23 to the facts of
this case, it is unnecessary to decide whether details appropriately
falling within the purview of Article 23, give rise to an obligation on
the part of the Respondent to bargain.
/25/ Much, if not all, of the data sought was disclosed to the Union
and the General Counsel during the course of the hearing.
/26/ The Respondent's March 23, 1984 letter notifying the Union of
the decision to abolish the CRBR Program Office identifies seven
employees as personnel affected by the decision. The information
request sought personnel action data relating to these employees. The
record established that at least three of the employees were bargaining
unit members.
/27/ The record reflects no showing, and it does not otherwise
appear, that disclosure of the data was prohibited by law. This
argument was not raised as a defense, nor did the Respondent introduce
any evidence to show that the data was not normally maintained by the
NRC, that it was not reasonably available, or that it constituted
guidance, advice, counsel, or training provided for management officials
or supervisors, relating to collective bargaining. Evidence concerning
such elements would ordinarily fall within the purview of the
Respondent's special knowledge relating to the data sought.
/28/ In light of this demonstrated necessity and relevance of the
requested data it is unnecessary to determine whether the data should
have been produced in connection with the processing of an unfair labor
practice charge.