Internal Revenue Service, Austin District, Austin, Texas (Respondent) and National Treasury Employees Union (NTEU) and NTEU Chapter 52 (Complainant) 

 



[ v02 p523 ]
02:0523(71)CA
The decision of the Authority follows:


 2 FLRA No. 71
 
 INTERNAL REVENUE SERVICE
 AUSTIN DISTRICT
 AUSTIN, TEXAS
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 (NTEU) AND NTEU CHAPTER 52
 Complainant
 
                                            Assistant Secretary
                                            Case No. 63-8838(CA)
 
                            DECISION AND ORDER
 
    ON MARCH 23, 1979, ADMINISTRATIVE LAW JUDGE JOSEPH A. MATERA ISSUED
 HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
 FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
 PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT
 BE DISMISSED IN ITS ENTIRETY.  THEREAFTER, BOTH PARTIES FILED EXCEPTIONS
 WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
 ORDER.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
 TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
 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
 (44 F.R. 44741,JULY 30, 1979).  THE AUTHORITY CONTINUES TO BE
 RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
 SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
 REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
 REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
 AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE
 HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
 RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE,
 INCLUDING THE EXCEPTIONS FILED BY THE PARTIES, THE AUTHORITY HEREBY
 ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS ONLY TO THE EXTENT CONSISTENT HEREWITH.  /1/
 
    THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT HAD NOT
 VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER WHEN IT HELD IN ABEYANCE
 THE GRIEVANCE OF A BARGAINING UNIT EMPLOYEE PENDING THE OUTCOME OF A
 FEDERAL COURT LAWSUIT BROUGHT UNDER THE EQUAL EMPLOYMENT OPPORTUNITY
 ACT
 OF 1972 /2/ (EEO ACT), A CASE BASED ON ESSENTIALLY THE SAME FACTS AS THE
 GRIEVANCE.  IN REACHING THIS CONCLUSION, HE FOUND, AMONG OTHER THINGS,
 THAT THE RESPONDENT ACTED BASED ON A GOOD FAITH BELIEF THAT IT WAS
 PROCEEDING IN ACCORDANCE WITH PAST POLICY AND PRACTICE, AND ITS ACTION
 WAS IN NO WAY INTENDED TO OBSTRUCT THE NEGOTIATED GRIEVANCE PROCEDURE.
 THE ALJ NOTED THAT THE RESPONDENT REPEATEDLY INDICATED ITS WILLINGNESS
 TO PROCEED WITH THE GRIEVANCE ONCE THE EEO MATTER WAS RESOLVED.
 
    CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, HOWEVER, THE AUTHORITY
 CONCLUDES THAT THE RESPONDENT'S CONDUCT WAS VIOLATIVE OF THE ORDER.  /3/
 UNDER THE EEO ACT, A FEDERAL EMPLOYEE MAY CONCURRENTLY PURSUE AN EEO
 COMPLAINT BOTH THROUGH AGENCY PROCEDURES AND IN UNITED STATES DISTRICT
 COURT /4/ AND THE COURT ACTS INDEPENDENTLY OF THE ADMINISTRATIVE
 PROCESS.  /5/ THE PREVIOUS PRACTICE OF THE PARTIES HEREIN WAS TO HOLD
 CONTRACTUAL GRIEVANCES IN ABEYANCE WHILE RELATED MATTERS WERE BEING
 PROCESSED THROUGH THE AGENCY'S INTERNAL EEO PROCEDURES.  THIS CASE
 INVOLVES THE RESPONDENT'S EXTENSION OF SUCH PRACTICE TO INCLUDE THE
 HOLDING OF A CONTRACTUAL GRIEVANCE IN ABEYANCE WHILE RELATED EEO MATTERS
 WERE BEING PROCESSED IN A UNITED STATES DISTRICT COURT.  THE AUTHORITY
 VIEWS THIS EXTENSION OF THE EXISTING PRACTICE AS A UNILATERAL CHANGE IN
 PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING
 CONDITIONS THAT HAD NO BASIS IN PAST PRACTICE AND, THUS, A VIOLATION OF
 SECTION 19(A)(1) AND (6) OF THE ORDER.  /6/ ACCORDINGLY, CONSISTENT WITH
 THIS DECISION, THE AUTHORITY HEREBY ISSUES THE FOLLOWING ORDER:  /7/
 
                                   ORDER
 
    PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
 FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
 THAT THE INTERNAL REVENUE SERVICE, AUSTIN DISTRICT, AUSTIN, TEXAS SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REFUSING TO PROCEED TO STEP 4, AND ADDITIONAL STEPS, IF
 NECESSARY, OF THE GRIEVANCE
 
    PROCEDURE SET FORTH IN THE PARTIES' NEGOTIATED AGREEMENT EFFECTIVE
 MAY 3, 1974, ON THE
 
    GRIEVANCE OF MAY 20, 1976, WHICH SOUGHT TO PREVENT THE USE OF AN
 UNFAVORABLE APPRAISAL RATING
 
    IN AN EMPLOYEE PROMOTION ACTION.
 
    (B) UNILATERALLY CHANGING ESTABLISHED PRACTICES REGARDING THE
 PROCESSING OF CONTRACTUAL
 
    GRIEVANCES DURING THE PENDENCY OF RELATED INTERNAL AGENCY EEO
 PROCEDURES TO INCLUDE MATTERS
 
    BEFORE UNITED STATES DISTRICT COURTS WITHOUT FIRST NOTIFYING THE
 NATIONAL TREASURY EMPLOYEES
 
    UNION, CHAPTER 52, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF ITS
 EMPLOYEES, AND AFFORDING SUCH
 
    REPRESENTATIVE THE OPPORTUNITY TO NEGOTIATE, TO THE EXTENT CONSONANT
 WITH LAW AND REGULATIONS,
 
    ON SUCH CHANGES IN PRACTICE.
 
    (C) IN ANY LIKE OR RELATED MANNER 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) UPON REQUEST BY THE NATIONAL TREASURY EMPLOYEES UNION, CHAPTER
 52, OR ANY OTHER
 
    EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, NEGOTIATE, TO THE EXTENT
 CONSONANT WITH LAW AND
 
    REGULATIONS, CONCERNING ANY CHANGES IN ESTABLISHED PRACTICES
 REGARDING THE PROCESSING OF
 
    CONTRACTUAL GRIEVANCES DURING THE PENDENCY OF RELATED INTERNAL AGENCY
 EEO PROCEDURES.
 
    (B) UPON REQUEST, PROCEED TO STEP 4, AND SUCCEEDING STEPS, IF
 NECESSARY, OF THE GRIEVANCE
 
    PROCEDURE SET FORTH IN THE PARTIES NEGOTIATED AGREEMENT EFFECTIVE MAY
 3, 1974, ON THE
 
    GRIEVANCE OF MAY 20, 1976, WHICH SOUGHT TO PREVENT THE USE OF AN
 UNFAVORABLE APPRAISAL RATING
 
    IN AN EMPLOYEE PROMOTION ACTION.
 
    (C) POST AT ITS FACILITY AT THE AUSTIN DISTRICT, AUSTIN, TEXAS,
 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
 DISTRICT DIRECTOR AND SHALL
 
    BE POSTED AND MAINTAINED FOR 60 CONSECUTIVE DAYS THEREAFTER, IN
 CONSPICUOUS PLACES, INCLUDING
 
    BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
 CUSTOMARILY POSTED.  THE
 
    DISTRICT DIRECTOR SHALL TAKE REASONABLE STEPS TO ENSURE THAT SUCH
 NOTICES ARE NOT ALTERED,
 
    DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (D) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
 30 DAYS FROM THE DATE
 
    OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C., JANUARY 25, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
        NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
 
           THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
 
          EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
 
            UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 
              RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT REFUSE TO PROCEED TO STEP 4, AND ADDITIONAL STEPS, IF
 NECESSARY, OF THE GRIEVANCE PROCEDURE SET FORTH IN THE PARTIES'
 NEGOTIATED AGREEMENT EFFECTIVE MAY 3, 1974, ON THE GRIEVANCE OF MAY 20,
 1976, WHICH SOUGHT TO PREVENT THE USE OF AN UNFAVORABLE APPRAISAL RATING
 IN AN EMPLOYEE PROMOTION ACTION.
 
    WE WILL NOT CHANGE ESTABLISHED PRACTICES WITH REGARD TO THE
 PROCESSING OF CONTRACTUAL GRIEVANCES DURING THE PENDENCY OF RELATED
 INTERNAL AGENCY EEO PROCEDURES WITHOUT FIRST NOTIFYING THE NATIONAL
 TREASURY EMPLOYEES UNION, CHAPTER 52, OR ANY OTHER EXCLUSIVE
 REPRESENTATIVE OF OUR EMPLOYEES, AND AFFORDING SUCH REPRESENTATIVE THE
 OPPORTUNITY TO NEGOTIATE, TO THE EXTENT CONSONANT WITH LAW AND
 REGULATIONS, ON SUCH CHANGES IN PRACTICE.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
    WE WILL, UPON REQUEST BY THE NATIONAL TREASURY EMPLOYEES UNION,
 CHAPTER 52, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES,
 NEGOTIATE, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, CONCERNING
 ANY CHANGES IN ESTABLISHED PRACTICES REGARDING THE PROCESSING OF
 CONTRACTUAL GRIEVANCES DURING THE PENDENCY OF RELATED INTERNAL AGENCY
 EEO PROCEDURES.
 
    WE WILL, UPON REQUEST, PROCEED TO STEP 4, AND SUCCEEDING STEPS, IF
 NECESSARY, OF THE GRIEVANCE PROCEDURE SET FORTH IN OUR NEGOTIATED
 AGREEMENT, EFFECTIVE MAY 3, 1974, ON THE GRIEVANCE OF MAY 20, 1976,
 WHICH SOUGHT TO PREVENT THE USE OF AN UNFAVORABLE APPRAISAL RATING IN AN
 EMPLOYEE PROMOTION ACTION.
 
                           (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 FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
 ADDRESS IS:  DOWNTOWN POST OFFICE STATION, BRYAN AND ERVAY STREETS, P.
 O. BOX 2640, DALLAS, TEXAS 75221, AND WHOSE TELEPHONE NUMBER IS:  (214)
 767 4996.
 
    THOMAS L. SELF, ATTORNEY AT LAW
 
    GENERAL LEGAL SERVICES
 
    OFFICE OF REGIONAL COUNSEL
 
    INTERNAL REVENUE SERVICE
 
    ROOM 12-D, 27 1100 COMMERCE STREET
 
    DALLAS, TEXAS 78242
 
    BARBARA KELLY, TECHNICAL REPRESENTATIVE
 
    LABOR RELATIONS SPECIALIST
 
    AUSTIN DISTRICT
 
    INTERNAL REVENUE SERVICE
 
    AUSTIN, TEXAS
 
                            FOR THE RESPONDENT
 
    B. CRAIG DEATS, ASSISTANT COUNSEL
 
    NATIONAL TREASURY EMPLOYEES UNION
 
    SUITE 104, 300 E. HUNTLAND DRIVE
 
    AUSTIN, TEXAS 78752
 
    HENRY H. ROBINSON, ASSOCIATE GENERAL COUNSEL
 
    NATIONAL TREASURY EMPLOYEES UNION
 
    SUITE 104, 300 E. HUNTLAND DRIVE
 
    AUSTIN, TEXAS 78752
 
                            FOR THE COMPLAINANT
 
    BEFORE:  JOSEPH A. MATERA
 
    ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    PURSUANT TO A NOTICE OF HEARING ON A COMPLAINT ISSUED ON DECEMBER 13,
 1978, BY THE REGIONAL ADMINISTRATOR, LABOR-MANAGEMENT SERVICES
 ADMINISTRATION OF THE U.S.  DEPARTMENT OF LABOR, KANSAS CITY REGION, A
 HEARING IN THIS MATTER WAS CONDUCTED ON JANUARY 25, 1979, IN AUSTIN,
 TEXAS.  THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS
 AMENDED (HEREINAFTER CALLED ORDER), BY THE FILING OF A COMPLAINT ON
 OCTOBER 2, 1978, BY VINCENT L. CONNERY, NATIONAL PRESIDENT, NATIONAL
 TREASURY EMPLOYEES UNION AND NTEU, CHAPTER 52 (HEREINAFTER CALLED
 UNION), AGAINST THE INTERNAL REVENUE SERVICE, AUSTIN DISTRICT
 (HEREINAFTER CALLED AGENCY), PURSUANT TO 29 C.F.R. 203.4.
 
    THIS DECISION IS ISSUED PURSUANT TO TRANSITION RULES AND REGULATIONS,
 FEDERAL REGISTER, VOL. 44, NO. 1, JANUARY 2, 1979, PAGES 7-8, IN THE
 NAME OF THE FEDERAL LABOR RELATIONS AUTHORITY.  IN ACCORDANCE WITH
 SECTION 2400.2(5 C.F.R. 2400.2) OF THE TRANSITION RULES AND REGULATIONS,
 IT SHALL BE PROCESSED BY THE AUTHORITY IN ACCORDANCE WITH THE RULES AND
 REGULATIONS OF THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS,
 TITLE 29, CODE OF FEDERAL REGULATIONS, PART 201, ET SEQ., EXCEPT THAT
 THE WORD "AUTHORITY" SHALL BE SUBSTITUTED WHEREVER THE WORDS "ASSISTANT
 SECRETARY" APPEAR IN THE RULES AND REGULATIONS OF THE OFFICE OF THE
 ASSISTANT SECRETARY.
 
    THE AFORESAID COMPLAINT CHARGED A VIOLATION OF SECTIONS 19(A)(1) AND
 (6) OF THE ORDER AS A RESULT OF THE ALLEGED REFUSAL OF THE AGENCY TO
 COMPLY WITH THE GRIEVANCE PROCEDURE OF A MULTI-DISTRICT AGREEMENT
 BETWEEN THE PARTIES AND ALSO AN ALLEGED CHANGE IN TERMS AND CONDITIONS
 OF EMPLOYMENT BY THE AGENCY WITHOUT PRIOR CONSULTATION WITH THE UNION.
 
    THE PARTIES WERE FULLY REPRESENTED AT THE HEARING BY HIGHLY COMPETENT
 COUNSEL WHO WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO ADDUCE
 EVIDENCE AND TO EXAMINE AND CROSS-EXAMINE WITNESSES.  THEREAFTER, BOTH
 PARTIES FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED.
 
    A MOTION TO CORRECT THE TRANSCRIPT WAS FILED BY COUNSEL FOR THE
 AGENCY WITH ITS POST-HEARING BRIEF, IN ACCORDANCE WITH 29 C.F.R.
 203.19(A)(1), ET SEQ.  THE MOTION IS GRANTED AS TO THE PROPOSED
 CORRECTIONS ON PAGES 2, 4, 21, 23, 63, 196 AND 261.  THESE PROPOSED
 CORRECTIONS ARE GENERALLY SELF-EVIDENT AND DO NOT CHANGE THE CONTEXT OF
 ANY PART OF THE TRANSCRIPT IN WHICH THEY APPEAR.  THE MOTION IS DENIED
 AS TO THE PROPOSED CORRECTIONS ON PAGES 60, 62 AND 171.  THE TRANSCRIPT
 APPEARS TO REFLECT ACCURATELY THE ACTUAL TERMS USED IN THE ACTIVE
 QUESTIONING OF THE WITNESSES, AND AN ANSWER GIVEN ON P. 171, ALTHOUGH
 PRECISE EXPRESSION MAY NOT HAVE BEEN INTENDED.  TO CHANGE THE TEXT OF
 THESE QUESTIONS IN ANY WAY WOULD REQUIRE THAT THE WITNESSES HAVE AN
 OPPORTUNITY TO ALSO REPHRASE THEIR ANSWERS.  IN THE TOTAL CONTEXT OF THE
 TRANSCRIPT I DO NOT FIND THIS TO BE NECESSARY.
 
    UPON THE ENTIRE RECORD IN THIS CASE, AND FROM OBSERVATIONS OF THE
 WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND
 DOCUMENTARY EVIDENCE ADDUCED AT THE HEARING I MAKE THE FOLLOWING
 FINDINGS OF FACT AND CONCLUSIONS OF LAW.
 
                             FINDINGS OF FACT
 
    THE UNION HEREIN WAS AT ALL TIMES MATERIAL HERETO THE EXCLUSIVE
 COLLECTIVE BARGAINING REPRESENTATIVE OF CERTAIN EMPLOYEES OF THE AGENCY.
  AT ALL SUCH TIMES AND PARTICULARLY DURING MAY 1976, THE PARTIES
 PROCESSED ALL GRIEVANCES INCLUDING THE GRIEVANCE RELEVANT HEREIN UNDER
 AN AGREEMENT ENTITLED MULTI-DISTRICT AGREEMENT II (JOINT EXHIBIT 1,
 HEREINAFTER REFERRED TO AS MDA II).  ON MAY 20, 1976, BARGAINING UNIT
 EMPLOYEE HARVEY MALYN (HEREINAFTER REFERRED TO AS GRIEVANT), EMPLOYED AS
 AN ESTATE TAX ATTORNEY FOR THE AGENCY, FILED A CONTRACT GRIEVANCE UNDER
 THIS AGREEMENT.  THIS GRIEVANCE RELATED TO AN APRIL 23, 1976, PROMOTION
 APPRAISAL AND ITS SUBSEQUENT USE IN A PROMOTION ACTION INVOLVING A
 HIGHER GRADE ESTATE TAX ATTORNEY POSITION FOR WHICH THE CLAIMANT WAS
 APPLYING.  ON JUNE 1, 1976, A STEP 1 MEETING WAS HELD IN RESPECT TO THIS
 CONTRACT GRIEVANCE UNDER ARTICLE 35, SECTION 7 OF MDA II AND ON JUNE 4,
 1976, A DECISION DENYING THE GRIEVANCE WAS ISSUED BY THE AGENCY.  ON
 JUNE 9, 1976, AFTER LEARNING HE HAD NOT BEEN SELECTED FOR PROMOTION TO
 THE HIGHER GRADE POSITION, AND THAT A WOMAN HAD BEEN CHOSEN, GRIEVANT,
 THROUGH OTHER THAN UNION REPRESENTATION, INSTITUTED AN EQUAL EMPLOYMENT
 OPPORTUNITY (EEO) CHARGE AND COMPLAINT AGAINST HIS SUPERVISOR AND AGENCY
 MANAGEMENT.  HE THEREAFTER MADE CONTACT WITH AN EEO COUNSELOR (JT. EXH.
 22, P. 3).
 
    ON JUNE 10, 1976, THE UNION STEWARD PROCESSING GRIEVANT'S CONTRACT
 GRIEVANCE APPEALED TO STEP 2 UNDER THE NEGOTIATED GRIEVANCE PROCEDURE
 AFTER RECEIVING NOTICE OF THE STEP 1 DENIAL BY THE AGENCY.  IN HIS
 APPEAL LETTER THE UNION STEWARD ALSO MADE THE FOLLOWING REQUEST:
 
    SINCE THE FIRST STEP HEARING, MR. MALYN HAS FILED A GRIEVANCE WITH
 THE REGIONAL EQUAL
 
    EMPLOYMENT OPPORTUNITY OFFICER WITH REFERENCE TO THE SUBJECT MATTER
 OF THE
 
    GRIEVANCE.  THEREFORE, IT IS REQUESTED THAT ANY MEETINGS TO HEAR THIS
 APPEAL BE POSTPONED
 
    UNTIL THE EEO GRIEVANCE IS DISPOSED OF.  (JT. EXH. 4.)
 
    THIS UNION REQUEST ON BEHALF OF GRIEVANT WAS ACKNOWLEDGED AND ACCEDED
 TO BY THE AGENCY, ITS REPRESENTATIVE INDICATING THAT A SECOND STEP
 MEETING OF GRIEVANT'S CONTRACT GRIEVANCE WOULD BE SET UP "AFTER YOU
 NOTIFY ME THE EEO GRIEVANCE HAS BEEN DISPOSED OF." (JT.  EXH. 5.)
 
    GRIEVANT THEREAFTER PURSUED HIS EEO REMEDIES, FILING A FORMAL
 COMPLAINT OF DISCRIMINATION AND REPRISAL BASED IN PART UPON THE ALLEGED
 UNFAIR EVALUATION REFERRED TO IN HIS CONTRACT GRIEVANCE AS WELL AS ON A
 CHARGE OF SEX BIAS (JT. EXH. 6A, 6B).  GRIEVANT'S EEO COMPLAINT WAS
 ADMINISTRATIVELY PROCESSED IN ACCORDANCE WITH THE FEDERAL STATUTE, 42
 U.S.C.A.  2000E-16(A),ET SEQ., AND THE IMPLEMENTING REGULATIONS, 5
 C.F.R. 713,ET SEQ., INCLUDING AN INVESTIGATION AND PROPOSED DISPOSITION
 BY AN AGENCY EEO OFFICER AND A HEARING BEFORE A CIVIL SERVICE COMPLAINT
 EXAMINER.  BOTH OF THOSE OFFICIALS FOUND NO DISCRIMINATION AND
 RECOMMENDED DISMISSAL OF THE COMPLAINT.  ON JANUARY 27, 1978, THE ACTING
 DIRECTOR, EEO PROGRAMS, DEPARTMENT OF THE TREASURY, IN HIS STATUTORY
 ROLE ISSUED THE FINAL DECISION OF THE DEPARTMENT OF THE TREASURY
 PURSUANT TO 5 C.F.R.  713.221, ADOPTING THE RECOMMENDED DECISION OF THE
 CIVIL SERVICE COMMISSION FINDING NO DISCRIMINATION.  THEREAFTER, ON
 FEBRUARY 7, 1978, GRIEVANT NOTIFIED THE AGENCY THAT HE WISHED TO REOPEN
 HIS MAY 20, 1976, CONTRACT GRIEVANCE AT THE STEP 2 MEETING LEVEL.  SUCH
 A MEETING WAS SCHEDULED AND HELD ON MARCH 7, 1978, PURSUANT TO ARTICLE
 35, SECTION 7 OF MDA II AND ON MARCH 13, 1978, A STEP 2 DECISION WAS
 ISSUED DENYING THE CONTRACT GRIEVANCE.  A TIMELY APPEAL BY GRIEVANT TO
 STEP 3 WAS PROMPTLY HEARD BY THE AGENCY ON MARCH 30, 1978.  A STEP 3
 DECISION WAS ISSUED BY THE AGENCY, AGAIN DENYING THE CONTRACT GRIEVANCE.
  THE UNION ON APRIL 10, 1978, THEN APPEALED THE GRIEVANCE TO STEP 4 AS
 PROVIDED IN THE CONTRACT.
 
    ON APRIL 18, 1978, GRIEVANT, THROUGH PRIVATE COUNSEL, THEN PURSUED
 HIS EEO REMEDIES TO THE NEXT STATUTORY LEVEL BY FILING SUIT IN THE
 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, AGAINST
 THE COMMISSIONER OF IRS.  THIS SUIT ALLEGES DISCRIMINATION BASED ON SEX
 RESULTING IN NON-SELECTION FOR THE PROMOTION IN QUESTION.  THE ACTION
 WAS ALSO BASED IN PART UPON ALLEGATIONS OF DOWN GRADING OF GRIEVANT ON
 PERFORMANCE EVALUATIONS, IN RETALIATION FOR THIS ASSERTION OF RIGHTS
 UNDER THE EEO ACT (JT. EXH. 13).
 
    SHORTLY AFTER THIS SUIT WAS FILED MR. GREER, THE AGENCY
 REPRESENTATIVE ASSIGNED TO CONDUCT THE STEP 4 LEVEL CONTRACT GRIEVANCE
 MEETING, LEARNED OF THIS LAW SUIT THROUGH ANOTHER AGENCY MANAGER.  HE
 THEN SOUGHT THE ADVICE OF THE AGENCY'S LABOR RELATIONS SPECIALIST AS TO
 FURTHER PROCESSING OF THE CONTRACT GRIEVANCE AND WAS ADVISED THAT "IF IT
 INVOLVED THE SAME SUBJECT MATTER IT WOULD BE PROPER TO WITHHOLD
 PROCESSING OF THE GRIEVANCE." (TR. 119.) THIS ACTION, HE TESTIFIED, WAS
 BASED UPON PAST PRACTICE OF THE AUSTIN DISTRICT OF THE INTERNAL REVENUE
 SERVICE, THAT EEO COMPLAINTS AND INVESTIGATIONS TOOK PRECEDENCE OVER
 CONTRACT GRIEVANCES.  AS A RESULT ANY CONTRACT GRIEVANCE, HE TESTIFIED,
 WOULD BE HELD IN ABEYANCE UNTIL THE EEO INVESTIGATIONS AND RESOLUTION OF
 THE EEO MATTER WAS SETTLED (TR. 121, 125).  A SECOND REASON GIVEN BY MR.
 GREER FOR HIS ACTION, IN ADDITION TO THAT OF PAST PRACTICE AND POLICY,
 WAS THAT FROM HIS PREVIOUS UNDERSTANDING IT WAS NOT APPROPRIATE TO DEAL
 WITH CONTRACT ISSUES WHICH WERE ALSO UNDER THE JURISDICTION OF A COURT
 ABSENT THE PERSONAL INVOLVEMENT OF THE UNITED STATES ATTORNEY (TR. 121).
 
    AFTER SPEAKING WITH HIS LABOR RELATIONS SPECIALIST MR. GREER HAD THE
 COURT SUIT READ TO HIM.  HE THEREAFTER CONCLUDED THAT IT DID INVOLVE THE
 SAME SUBJECT MATTER AS THE CONTRACT GRIEVANCE.  HE INFORMED THE UNION
 PRESIDENT, MR. SAM, BY PHONE OF HIS CONCLUSION AND INTENT TO HOLD THE
 CONTRACT GRIEVANCE IN ABEYANCE.  HE CONFIRMED THIS BY LETTER OF APRIL
 26, 1978.  HE ALSO SUPPLIED MR. SAM WITH A COPY OF THE COURT SUIT AROUND
 THE SAME TIME.  HE TESTIFIED THAT MR. SAM DID NOT DISAGREE WITH OR
 OBJECT TO HIS PROPOSED ACTION OF HOLDING THE CONTRACT GRIEVANCE IN
 ABEYANCE (TR. 121).  MR. SAM DID NOT RECALL THE TELEPHONE CONVERSATION
 OR WHETHER OR NOT HE SPECIFICALLY DISAGREED WITH MR. GREER AT THAT TIME
 REGARDING THE HOLDING OF THE MATTER IN ABEYANCE, AFTER RECEIVING THE
 LETTER CONFIRMING THE ALLEGED TELEPHONE CONVERSATION.
 
    FOLLOWING THE HOLDING OF THE CONTRACT GRIEVANCE IN ABEYANCE, THE
 GRIEVANT ON MAY 8, 1978, FILED A NEW EEO REPRISAL CHARGE WITH THE
 REGIONAL INTERNAL REVENUE SERVICE EEO OFFICER FOR REFUSAL TO PROCESS HIS
 MAY 20, 1976, CONTRACT GRIEVANCE AT STEP 4.  THIS NEW EEO CHARGE WAS
 ULTIMATELY REJECTED AS NOT WITHIN THE PURVIEW OF THE EEO REGULATIONS.
 
    THE GRIEVANT, FOLLOWING THE HOLDING OF HIS CONTRACT GRIEVANCE IN
 ABEYANCE, ALSO INSTITUTED THROUGH THE UNION ON JULY 26, 1978, A
 PRE-COMPLAINT OF AN UNFAIR LABOR PRACTICE CHARGE WITH THE AGENCY,
 CONTENDING THAT RESPONDENT HAD VIOLATED SECTIONS 19(A)(1) AND 19(A)(6)
 OF THE ORDER.  FOLLOWING A DENIAL OF THE CHARGE BY THE AGENCY THE FORMAL
 UNFAIR LABOR PRACTICE COMPLAINT, HEREIN BEING CONSIDERED, WAS FILED ON
 OCTOBER 2, 1978.
 
    THE EEO SUIT FILED BY GRIEVANT IN THE MEANTIME HAS BEEN ANSWERED BY
 THE INTERNAL REVENUE SERVICE AND GRIEVANT THROUGH HIS PRIVATE COUNSEL
 HAS FILED A SECOND AMENDED COMPLAINT.  THE SUIT REMAINS PENDING.
 
                            CONCLUSIONS OF LAW
 
    THOSE PORTIONS OF SECTION 19(A) OF THE ORDER WHICH ARE PERTINENT TO
 THE ISSUES RAISED HEREIN PROVIDE THAT AGENCY MANAGEMENT SHALL NOT (1)
 INTERFERE WITH, RESTRAIN OR COERCE AN EMPLOYEE IN THE EXERCISE OF THE
 RIGHTS AS ASSURED BY THE ORDER, OR (6) REFUSE TO CONSULT, CONFER OR
 NEGOTIATE WITH A LABOR ORGANIZATION AS REQUIRED BY THE ORDER.  IN THIS
 RESPECT IT IS ESTABLISHED THAT INTERFERENCE WITH THE FILING OR
 PROCESSING OF GRIEVANCES MAY BE VIOLATIVE OF THE ABOVE-CITED SECTIONS OF
 THE ORDER.  DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
 ADMINISTRATION, NEW YORK AIR ROUTE TRAFFIC CONTROL CENTER, A/SLMR NO.
 1178.  WHERE SUCH A COURSE OF ACTION IS INITIATED BY A PARTY WHICH
 CLEARLY CONTRAVENES THE AGREED UPON TERMS OF A NEGOTIATED AGREEMENT,
 WITHOUT PRIOR CONSULTATION, THE BARGAINING REQUIREMENTS OF THE ORDER
 HAVE NOT BEEN MET.  VETERANS ADMINISTRATION HOSPITAL, CHARLESTON, SOUTH
 CAROLINA, A/SLMR NO. 87.
 
    THE UNION CHARGES JUST A VIOLATION OF THE ORDER BY THE AGENCY IN ITS
 HOLDING IN ABEYANCE, AND REFUSAL TO HEAR, GRIEVANT'S CONTRACT GRIEVANCE
 ON THE STEP 4 LEVEL.  THE UNION ALSO CHARGES A VIOLATION OF THE ORDER BY
 THE AGENCY IN ITS FAILURE TO PROVIDE ADVANCE NOTIFICATION TO THE UNION
 OF AN ALLEGED CHANGED PERSONNEL POLICY IN RESPECT TO THE HOLDING OF
 CONTRACT GRIEVANCES IN ABEYANCE.
 
    ADDRESSING HIMSELF TO THIS PAST AGENCY POLICY CONCERNING THE HOLDING
 OF GRIEVANCES IN ABEYANCE, THE PRESIDENT OF CHAPTER 52 OF THE UNION, WHO
 HAD BEEN EMPLOYED BY THE AGENCY FOR SOME 22 AND A HALF YEARS, TESTIFIED
 IN RESPECT TO THE AGENCY PRACTICE IN QUESTION:
 
    JUDGE MATERA:  UNDER THOSE CIRCUMSTANCES, AS YOU SAY, (DURING THE
 ADMINISTRATIVE PROCESSING
 
    OF AN EEO COMPLAINT), UNDER THOSE CIRCUMSTANCES THE ORDINARY PRACTICE
 THEN WAS TO HOLD THE
 
    GRIEVANCE IN ABEYANCE PENDING THE OUTCOME OF THE EEO ADMINISTRATIVE
 COMPLAINT?
 
    THE WITNESS:  ABSOLUTELY.  I HAVE AN AGENCY GRIEVANCE NOW THAT'S BEEN
 HELD IN ABEYANCE IN
 
    EXCESS OF TWO YEARS NOW.  (TR. P. 109.)
 
    THUS, THERE IS NO QUESTION THAT THE AGENCY POLICY OF HOLDING CONTRACT
 GRIEVANCES IN ABEYANCE PENDING THE OUTCOME OF AN "ADMINISTRATIVE
 COMPLAINT" WAS WELL ESTABLISHED AS TO ALL PARTIES.  (SEE ALSO TR. PP.
 49, 76, 105, 169, 170, 198 AND 252.) THIS DELAY APPARENTLY INVOLVED ON
 OCCASION SUBSTANTIAL PERIODS OF TIME.  HOWEVER, IT IS THE POSITION OF
 THE COMPLAINANT THAT THIS POLICY HAD NO RELEVANCY TO AN EEO COMPLAINT
 SHARING THE SAME SUBJECT MATTER AS A CONTRACT GRIEVANCE, WHICH HAD
 PROCEEDED BEYOND AN ADMINISTRATIVE STAGE TO THE LEVEL OF A COURT ACTION
 AS IN THE INSTANT CASE.
 
    AGENCY MANAGEMENT PERSONNEL AND THE LABOR RELATIONS SPECIALIST FOR
 THE RESPONDENT MAINTAINED AT THE HEARING THAT AGENCY POLICY AND PRACTICE
 HAVE BEEN CONSISTENT IN PLACING CONTRACT GRIEVANCES IN ABEYANCE DURING
 THE PENDENCY OF AN EEO COMPLAINT INVOLVING THE SAME SUBJECT MATTER.
 WHILE IT APPARENTLY WAS A MATTER OF FIRST PRECEDENT IN THE AUSTIN
 DISTRICT TO HAVE AN EEO COMPLAINT AT THE LEVEL OF A COURT PROCEEDING
 WHILE A CONTRACT GRIEVANCE WAS PENDING, IT NONETHELESS APPEARED
 CONSISTENT TO AGENCY MANAGEMENT TO APPLY THE SAME PAST POLICY AND
 PRACTICE TO THIS SITUATION.  MR. GREER TESTIFIED THAT HIS PERSONAL
 EXAMINATION OF THE COURT DOCUMENTS CONVINCED HIM THAT IT AROSE OUT OF
 THE SAME SUBJECT MATTER AS THE CONTRACT GRIEVANCE.  HE THEREFORE FELT HE
 WAS ACTING IN A MANNER CONSISTENT WITH PAST POLICY AND PRACTICE IN
 PLACING THE FOURTH LEVEL CONTRACT GRIEVANCE IN ABEYANCE.
 
    I CONCLUDE FROM THE EVIDENCE BEFORE ME THAT MR. GREER, ON BEHALF OF
 THE AGENCY, WAS MOTIVATED BY A GOOD FAITH BELIEF THAT HE WAS ACTING IN
 ACCORDANCE WITH PAST PRACTICE AND PROCEDURE OF THE AGENCY IN PLACING THE
 CONTRACT GRIEVANCE IN ABEYANCE.  THE CONCLUSIONS REACHED BY MR. GREER
 THAT THE EEO COURT SUIT AND THE CONTRACT GRIEVANCE WERE SUBSTANTIALLY
 THE SAME, REQUIRING HIM TO PLACE THE CONTRACT GRIEVANCE IN ABEYANCE, ARE
 BOTH REASONABLE AND SUPPORTED BY THE EVIDENCE OF RECORD.  FURTHER
 CREDENCE IS GIVEN TO THIS AGENCY ACTION BY THE FACT THAT MR. SAM, THE
 UNION PRESIDENT, VOICED NO OBJECTION WHEN INFORMED BY MR. GREER, BOTH BY
 A PHONE CALL AND A CONFIRMING LETTER, OF HIS INTENTIONS.  /8/
 
    A REVIEW OF THE RECORD IN THIS CASE, CAREFULLY DOCUMENTED BY BOTH
 PARTIES HEREIN, CONVINCES ME THAT THERE WAS NO DELIBERATE INTENT BY THE
 AGENCY TO EVADE OR IGNORE THE CLEAR GRIEVANCE PROCEDURES ESTABLISHED IN
 THE NEGOTIATED AGREEMENT.  THE EXPRESSED WILLINGNESS OF THE AGENCY TO
 PROMPTLY CONDUCT THE VARIOUS LEVEL GRIEVANCE MEETINGS UNDER THE
 CONTRACT, UPON CONCLUSION OF THE EEO MATTER, WAS CLEAR.  THERE WAS
 PROMPT REINSTITUTION OF THE GRIEVANCE MACHINERY AT THE STEP 2 LEVEL AT
 GRIEVANT'S REQUEST AFTER THE EEO PROCEEDING HAD REACHED WHAT WAS THOUGHT
 TO BE A CONCLUSIVE STAGE (JT. EXH. 22, STIPULATIONS 11, 12, 13, 14).  AT
 THE TRIAL OF THIS MATTER THERE WAS A FURTHER DECLARATION BY MR. GREER OF
 THE AGENCY'S WILLINGNESS AND INTENTION TO CONDUCT THE STEP 4 LEVEL
 MEETING UNDER THE CONTRACT UPON CONCLUSION OF THE PROCESSING OF THE EEO
 COMPLAINT (TR. 124).
 
    THE FINDINGS REACHED HEREIN ARE IN ACCORD WITH THE CONCLUSIONS
 REACHED BY THE ASSISTANT SECRETARY IN AT LEAST TWO SEPARATE MATTERS.  IN
 DEPARTMENT OF HEW, SOCIAL SECURITY ADMINISTRATION, DISABILITY INSURANCE
 PROGRAM STAFF, A/SLMR NO. 1128, THE AGENCY REFUSED TO PROCESS A CONTRACT
 GRIEVANCE BEYOND A CERTAIN LEVEL, PENDING RESOLUTION OF A RELATED EEO
 PROCEEDING.  RELIANCE WAS PLACED BY THE AGENCY IN THAT CASE ON SECTION
 13(A) OF THE ORDER.  AS IN THIS CASE, IT WAS NOTED THAT THE AGENCY HAD
 INDICATED ITS WILLINGNESS TO PROCEED ONCE THE EEO MATTER HAD BEEN
 RESOLVED.  THE ASSISTANT SECRETARY AGREED WITH THE FINDINGS OF THE
 ADMINISTRATIVE LAW JUDGE THAT THERE WAS NO SHOWING OF BAD FAITH BY THE
 AGENCY, OR THAT THERE HAD BEEN ANY ATTEMPT TO FRUSTRATE THE
 GRIEVANCE/ARBITRATION MACHINERY.
 
    SIMILARLY, IN DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
 MILWAUKEE DISTRICT OFFICE, CASE NO. 51-3911(CA), THE AGENCY HELD IN
 ABEYANCE FURTHER PROCESSING OF CERTAIN GRIEVANCES PENDING A DECISION ON
 EEO COMPLAINTS.  THE GRIEVANCE INVOLVED IN PART THE SAME SUBJECT MATTER
 AS THE EEO COMPLAINTS.  THE AGENCY BASED ITS ACTION IN THAT CASE ON
 CERTAIN PROCEDURES CONTAINED IN THE TREASURY PERSONNEL MANUAL.  THE
 UNION ALLEGED, AS IT DOES IN THIS CASE, A VIOLATION OF SECTIONS 19(A)(1)
 AND (6) OF THE ORDER.  THE ACTING REGIONAL ADMINISTRATOR, IN DISMISSING
 FOR FAILURE TO FIND ANY REASONABLE BASIS FOR THE COMPLAINT, STATED THAT
 EVEN IF THE AGENCY ERRED IN ITS INTERPRETATION OF THE RELEVANT PERSONNEL
 REGULATIONS, ITS CONDUCT WOULD CONSTITUTE ONLY A SIMPLE BREACH OF THE
 PARTIES' NEGOTIATED AGREEMENT AND WOULD NOT RISE TO "THE LEVEL OF A
 FLAGRANT AND DELIBERATE BREACH CONSTITUTING A UNILATERAL MODIFICATION OF
 THE NEGOTIATED AGREEMENT." THIS DISPUTE, HE HELD, WAS PROPERLY A MATTER
 FOR THE GRIEVANCE MACHINERY OF THE PARTIES' NEGOTIATED AGREEMENT RATHER
 THAN AN UNFAIR LABOR PRACTICE PROCEDURE.  THIS DISMISSAL OF THE
 COMPLAINT BY THE REGIONAL ADMINISTRATOR WAS APPEALED TO THE FEDERAL
 LABOR RELATIONS COUNCIL WHERE THE PETITION FOR REVIEW WAS DENIED.  THE
 COUNCIL FAILED TO FIND THAT THE DISMISSAL OF THE COMPLAINT WAS ARBITRARY
 OR CAPRICIOUS, OR PRESENTED A MAJOR POLICY ISSUE.  FLRC NO. 77A-135.
 
    I FIND THEREFORE THAT THE COMPLAINANT UNION HAS FAILED TO MEET ITS
 BURDEN OF ESTABLISHING A REASONABLE BASIS FOR THE COMPLAINT.  I CONCLUDE
 THAT THE ACTION BY THE AGENCY'S REPRESENTATIVE, MR. MR. GREER, OF
 PLACING A CONTRACT GRIEVANCE IN ABEYANCE WAS BASED UPON HIS GOOD FAITH
 BELIEF THAT HE WAS ACTING IN ACCORD WITH PAST POLICY AND PRACTICE
 ACCEPTED BY BOTH THE AGENCY AND THE UNION.  THERE IS NO EVIDENCE IN THE
 RECORD TO SUGGEST THAT THIS ACTION WAS MOTIVATED EITHER BY GRIEVANT'S
 UNION MEMBERSHIP OR FROM PAST GRIEVANCES AND COMPLAINTS FILED BY HIM
 AGAINST THE AGENCY.  /9/
 
    I DO NOT DOUBT THE GOOD FAITH BELIEF OF THE PARTIES CONCERNING THEIR
 OWN RESPECTIVE INTERPRETATIONS OF PAST POLICY AND PRACTICE IN RESPECT TO
 HOLDING MATTERS IN ABEYANCE WHEN AN EEO COMPLAINT IS PENDING.  WHETHER
 THE POLICY TO HOLD IN ABEYANCE INCLUDES THE PENDING OF AN EEO MATTER
 WHICH HAS REACHED THE LEVEL OF A FEDERAL COURT ACTION REMAINS SUBJECT TO
 CLARIFICATION.  HOWEVER, SUCH A CLARIFICATION OF DIFFERING AND ARGUABLE
 INTERPRETATIONS RESPECTING THE IMPLEMENTATION OF A NEGOTIATED AGREEMENT
 IS APPROPRIATELY RESOLVED WITHIN THE GRIEVANCE MACHINERY OF THIS
 NEGOTIATED AGREEMENT.  IT DOES NOT PROPERLY FALL WITHIN THE SCOPE OF THE
 UNFAIR LABOR PRACTICE PROCEDURE OF THE ORDER.  CF., DEPARTMENT OF THE
 ARMY, A/SLMR NO. 624.
 
    IT IS CONCLUDED THEREFORE UNDER THE TOTAL CIRCUMSTANCES OF THIS CASE
 THAT THE AGENCY'S ACTION IN HOLDING THE GRIEVANT'S CONTRACT GRIEVANCE IN
 ABEYANCE PENDING RESOLUTION OF HIS EEO COMPLAINT DID NOT CONSTITUTE A
 CLEAR AND UNILATERAL BREACH OF THE NEGOTIATED AGREEMENT BETWEEN THE
 PARTIES AND IT IS THEREFORE FOUND NOT TO BE VIOLATIVE OF SECTION
 19(A)(1) AND (6) OF THE ORDER.
 
                                   ORDER
 
    THE COMPLAINT HEREIN IS HEREBY DISMISSED IN ITS ENTIRETY.
 
                             JOSEPH A. MATERA
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  MARCH 23, 1979
 
    SAN FRANCISCO, CALIFORNIA
 
    JAM:VG
 
    /1/ IN HIS RECOMMENDED DECISION AND ORDER, THE ADMINISTRATIVE LAW
 JUDGE INADVERTENTLY REFERRED TO CHARLES R. SPEER, A REPRESENTATIVE OF
 THE RESPONDENT, AS "MR.  GREER." THIS INADVERTENCE IS HEREBY CORRECTED.
 
    /2/ PUB. L. 92-261, 86 STAT. 103ET SEQ. (CODIFIED AT 42 U.S.C.
 SECTION 2000(E)ET SEQ.).
 
    /3/ SECTION 19(D) OF THE EXECUTIVE ORDER PROVIDES, IN PERTINENT PART,
 "(I)SSUES WHICH CAN PROPERLY BE RAISED UNDER AN APPEALS PROCEDURE MAY
 NOT BE RAISED UNDER THIS SECTION." IN VIEW OF THE FACT THAT THE AMENDED
 EEO LAWSUIT DEALS WITH ALLEGED VIOLATIONS OF THE EEO ACT AND IN NO WAY
 DEALS WITH THE UNFAIR LABOR PRACTICE ISSUES RAISED BY THE INSTANT
 COMPLAINT, THE AUTHORITY CONCLUDES THAT SECTION 19(D) DOES NOT SERVE TO
 BAR CONSIDERATION OF THE COMPLAINT UNDER THE UNFAIR LABOR PRACTICE
 PROCEDURES OF THE ORDER.
 
    /4/ "THE EXISTENCE OF CONCURRENT JURISDICTION IS APPARENTLY IMPLICIT
 IN SECTION 2000(E)-5(F)(1)." GRUBBS V. BUTZ, 514 F.2D 1323, 1329 (D.C.
 CIR.  1975).
 
    /5/ SEE CHANDLER V. ROUDEBUSH, 425 U.S. 840(1976), IN WHICH THE
 SUPREME COURT HELD THAT THE EEO ACT AFFORDS FEDERAL EMPLOYEES THE RIGHT
 TO A TRIAL DE NOVO ON EMPLOYMENT DISCRIMINATION CLAIMS.
 
    /6/ IT IS NOTED THAT THE TIME DELAYS INVOLVED IN HOLDING CONTRACTUAL
 GRIEVANCES IN ABEYANCE BEYOND THE PERIOD OF AN AGENCY'S INTERNAL
 PROCESSING OF EEO COMPLAINTS COULD SERVE TO DETER EMPLOYEES FROM
 EXERCISING THEIR FUNDAMENTAL EXECUTIVE ORDER RIGHT TO FILE GRIEVANCES
 UNDER NEGOTIATED PROCEDURES IRRESPECTIVE OF ANY APPARENT WILLINGNESS ON
 THE PART OF AN AGENCY TO PROCESS THE GRIEVANCE AFTER THE RESOLUTION OF
 THE EEO MATTER BY THE FEDERAL COURTS.  COMPARE DEPARTMENT OF HEALTH,
 EDUCATION AND WELFARE, SOCIAL SECURITY ADMINISTRATION, DISABILITY
 INSURANCE PROGRAM STAFF, CHICAGO, ILLINOIS, 8 A/SLMR 1096, A/SLMR NO.
 1128(1978), IN WHICH THE ASSISTANT SECRETARY CONCLUDED THAT THERE WAS NO
 VIOLATION OF THE ORDER WHERE THE RESPONDENT'S WILLINGNESS TO PROCESS A
 GRIEVANCE AFTER THE INTERNAL PROCESSING OF A RELATED EEO COMPLAINT
 MITIGATED ANY FRUSTRATION OF THE GRIEVANCE/ARBITRATION MACHINERY.
 
    /7/ IN CONFORMITY WITH SECTION 90