[ v02 p838 ]
02:0838(105)CA
The decision of the Authority follows:
2 FLRA No. 105
DEPARTMENT OF ENERGY
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Complainant
Assistant Secretary
Case No. 22-09034(CA)
DECISION AND ORDER
ON MAY 1, 1979, ADMINISTRATIVE LAW JUDGE WILLIAM B. DEVANEY ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING FIND
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, THE COMPLAINANT FILED EXCEPTIONS
TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER AND THE
RESPONDENT FILED AN ANSWERING BRIEF TO THE COMPLAINANT'S EXCEPTIONS.
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 THE CASE,
INCLUDING THE COMPLAINANT'S EXCEPTIONS AND THE RESPONDENT'S ANSWERING
BRIEF, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
FINDINGS, CONCLUSIONS AND RECOMMENDATION ONLY TO THE EXTENT CONSISTENT
HEREWITH. /1/
IN THIS CASE THE NATIONAL TREASURY EMPLOYEES UNION (NTEU) WAS THE
CERTIFIED EXCLUSIVE REPRESENTATIVE OF A NATIONWIDE UNIT OF ALL FEDERAL
ENERGY ADMINISTRATION (FEA) EMPLOYEES. THE FEA AND NTEU HAD A NEGOTIATED
AGREEMENT PROVIDING FOR, AMONG OTHER THINGS, THE WITHHOLDING OF DUES
THROUGH VOLUNTARY AUTHORIZATION. EFFECTIVE OCTOBER 1, 1977, THE
DEPARTMENT OF ENERGY (DOE) WAS CREATED, MERGING EMPLOYEES FROM SEVERAL
AGENCIES, INCLUDING THE FEA. THE NEGOTIATED AGREEMENT BETWEEN FEA AND
NTEU EXPIRED BY ITS TERMS ON THE OCTOBER 1, 1977, EFFECTIVE DATE OF THE
REORGANIZATION. THEREAFTER, DOE DECLINED TO ACCEPT ANY NEW DUES
WITHHOLDING AUTHORIZATIONS FROM EMPLOYEES IN THE NTEU UNIT, ALTHOUGH
CONTINUING TO HONOR AUTHORIZATIONS WHICH PREDATE OCTOBER 1, 1977.
SUBSEQUENTLY, PURSUANT TO A PETION FILED BY DOE, THE ASSISTANT SECRETARY
DETERMINED ON OCTOBER 13, 1978, THAT DOE WAS NOT THE SUCCESSOR EMPLOYER
FOR THE NTEU EXCLUSIVE UNIT. /2/ AT ISSUE IN THE INSTANT CASE IS DOE'S
REFUSAL TO PROCESS NEW DUES WITHHOLDING AUTHORIZATIONS BETWEEN OCTOBER
1, 1977, AND THE OCTOBER 13, 1978, DETERMINATION THAT DOE WAS NOT A
SUCCESSOR.
CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THE AUTHORITY CONCLUDES
THAT THE RESPONDENT'S DECISION NOT TO ACCEPT DUES WITHHOLDING
AUTHORIZATION REQUESTS EXECUTED AFTER OCTOBER 1, 1977, THE DATE OF THE
STATUTORY REORGANIZATION WHICH CREATED THE RESPONDENT, WAS VIOLATIVE OF
SECTION 19(A)(1) AND (5) OF EXECUTIVE ORDER 11491, AS AMENDED. /3/ IN
DEFENSE SUPPLY AGENCY, DEFENSE PROPERTY DISPOSAL OFFICE, ABERDEEN
PROVING GROUND, ABERDEEN, MARYLAND, 3 FLRC 787, FLRC NO. 74A-22 (1975),
THE FEDERAL LABOR RELATIONS COUNCIL HELD:
(U)NTIL ANY * * * ISSUES RAISED BY THE REORGANIZATION ARE DECIDED
(E.G., QUESTIONS
CONCERNING REPRESENTATION, UNIT QUESTIONS, OR THE LIKE), THE GAINING
EMPLOYER IS * * *
ENJOINED, IN ORDER TO ASSURE STABILITY OF LABOR RELATIONS AND THE
WELL-BEING OF ITS EMPLOYEES,
TO MAINTAIN RECOGNITION AND TO ADHERE TO THE TERMS OF THE PRIOR
AGREEMENT, INCLUDING DUES
WITHHOLDING, TO THE MAXIMUM EXTENT POSSIBLE. (FOOTNOTE OMITTED.)
IN THE AUTHORITY'S VIEW, THE HOLDING OF THE COUNCIL IN DSA IS
DISPOSITIVE OF THE ISSUES HEREIN. /4/ THE RESPONDENT, AS THE GAINING
EMPLOYER OF THE FORMER FEA EMPLOYEES WHO WERE REPRESENTED EXCLUSIVELY
BY
THE COMPLAINANT, WAS REQUIRED TO ADHERE TO THE TERMS OF THE PRIOR
AGREEMENT, INCLUDING DUES WITHHOLDING, BETWEEN THE FEA AND THE
COMPLAINANT TO THE MAXIMUM EXTENT POSSIBLE DURING THE PENDENCY OF THE RA
PETITION. SUCH ADHERENCE GOES TO BOTH THE CONTINUATION OF EXISTING DUES
WITHHOLDING AUTHORIZATIONS AND THE ACCEPTANCE OF NEW AUTHORIZATIONS
WHICH WOULD BE PROCESSED UNDER THE TERMS OF THE PRIOR AGREEMENT.
THEREFORE, AS THE PRIOR DUES WITHHOLDING AGREEMENT BETWEEN THE FEA AND
THE COMPLAINANT INCLUDED THE PROCEDURE FOR EXECUTING VOLUNTARY DUES
WITHHOLDING AUTHORIZATIONS, THE RESPONDENT WAS REQUIRED DURING THE
PENDENCY OF THE RA PETITION HEREIN TO ACCEPT NEW REQUESTS MADE BY
EMPLOYEES WHO WOULD BE WITHIN THE NTEU UNIT. RATHER THAN VIOLATING ITS
NEUTRALITY AS CONTESTED BY THE RESPONDENT, CONTINUING TO HONOR THE PRIOR
AGREEMENT IN CIRCUMSTANCES LIKE THOSE HEREIN WOULD HAVE BEEN CONSISTENT
WITH THE OBLIGATION TO MAINTAIN EXISTING RECOGNITIONS DURING THE
PENDENCY OF REPRESENTATION PETITIONS FILED TO RESOLVE ISSUES RAISED BY A
REORGANIZATION.
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 DEPARTMENT OF ENERGY SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO ACCEPT AND HONOR DUES WITHHOLDING REQUESTS VALIDLY
AND LAWFULLY EXECUTED PURSUANT TO A COLLECTIVE BARGAINING AGREEMENT, ON
BEHALF OF THE NATIONAL TREASURY EMPLOYEES UNION, OR ANY OTHER LABOR
ORGANIZATION, DURING THE PENDENCY OF AN RA PETITION.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) POST AT DEPARTMENT OF ENERGY INSTALLATIONS NATIONWIDE 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 SECRETARY OF ENERGY, AND THEY SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY
POSTED. THE SECRETARY SHALL TAKE REASONABLE STEPS TO INSURE THAT
NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY MATERIAL.
(B) 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., MARCH 7, 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 ACCEPT AND HONOR DUES WITHHOLDING REQUESTS
VALIDLY AND LAWFULLY EXECUTED PURSUANT TO A COLLECTIVE BARGAINING
AGREEMENT, ON BEHALF OF THE NATIONAL TREASURY EMPLOYEES UNION, OR ANY
OTHER LABOR ORGANIZATION, DURING THE PENDENCY OF AN RA PETITION.
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.
(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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
1730 K STREET, NW, ROOM 401, WASHINGTON, D.C., 20006; AND WHOSE
TELEPHONE NUMBER IS: (202) 653-7213.
JAMES R. LAWRENCE, ESQUIRE
ASSISTANT COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, NW., SUITE 1101
WASHINGTON, DC 20006
ON BRIEF: WILLIAM F. WHITE, ESQUIRE
ASSISTANT COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
FOR THE COMPLAINANT
PAGE NEWTON, ESQUIRE
DEPARTMENT OF ENERGY
ROOM 6219
20 MASSACHUSETTS AVENUE, NW.
WASHINGTON, D.C. 20545
ON BRIEF: RONALD W. KNISLEY, ESQUIRE
CHIEF, EMPLOYEE/LABOR MANAGEMENT RELATIONS
DEPARTMENT OF ENERGY
FOR THE RESPONDENT
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREINAFTER ALSO REFERRED TO AS THE "ORDER"). ALTHOUGH THE NOTICE OF
HEARING WAS ISSUED BY A REGIONAL ADMINISTRATOR OF THE LABOR-MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR AND
PROCEEDING, IN PART, WERE CONDUCTED BEFORE THE ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS; HOWEVER, THE PARTIES WERE
INFORMED AT THE HEARING THAT ALL FURTHER PROCEEDINGS IN THIS MATTER,
INCLUDING THE DECISION HEREIN, WOULD BE UNDER THE AUTHORITY PURSUANT TO
TRANSITION RULES AND REGULATIONS, FEDERAL REGISTER, VOL. 44, NO. 1,
JANUARY 2, 1979 (5 C.F.R. SECTION 2400.2).
THIS CASE INVOLVES A SINGLE NARROW ISSUE, NAMELY, WHETHER THE
DEPARTMENT OF ENERGY (HEREINAFTER ALSO REFERRED TO AS RESPONDENT)
VIOLATED THE ORDER BY REFUSING TO ACCEPT NEW DUES DEDUCTION
AUTHORIZATIONS EXECUTED AFTER THE EFFECTIVE DATE (OCTOBER 1, 1977) OF
THE STATUTORY REORGANIZATION WHICH CREATED RESPONDENT WHERE: A) THE
CONTRACT WITH THE AGENCY (FEDERAL ENERGY ADMINISTRATION) WHICH PROVIDED
FOR DUES DEDUCTION AUTHORIZATIONS TO COMPLAINANT, NATIONAL TREASURY
EMPLOYEES UNION, HAD EXPIRED, BY ITS TERMS, ON SEPTEMBER 30, 1977; B)
THE FEDERAL ENERGY ADMINISTRATION CEASED TO EXIST AS OF OCTOBER 1, 1977,
WHEN IT BECAME A PART OF RESPONDENT; C) REPRESENTATION PETITIONS WERE
SUBMITTED ON OR ABOUT OCTOBER 17, 1977, AND WERE FILED BY THE ASSISTANT
SECRETARY ON NOVEMBER 1, 1977 (JT. EXH. D); AND D) THE ASSISTANT
SECRETARY DETERMINED THAT THE REORGANIZATION, EFFECTIVE OCTOBER 1, 1977,
CREATED A NEW ORGANIZATIONAL ENTITY AND RESULTED IN A MATERIAL
ALTERATION ON THE UNIT REPRESENTED BY COMPLAINANT (AS WELL AS THE UNIT
REPRESENTED BY LOCAL 2195 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES)
AND ITS DISAPPEARANCE AS A RECOGNIZABLE APPROPRIATE UNIT AND THAT THE
REORGANIZATION RENDERED COMPLAINANT'S EXCLUSIVELY RECOGNIZED UNIT
INAPPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER
(U.S. DEPARTMENT OF ENERGY, A/SLMR NO. 1136 (1978)). RESPONDENT HONORED
DUES AUTHORIZATIONS EXECUTED PRIOR TO OCTOBER 1, 1977, BY FEA EMPLOYEES.
THIS MATTER WAS INITIATED BY A CHARGE DATED MARCH 29, 1978 (JT. EXH.
B) AND FILED ON MARCH 31, 1978, AND A COMPLAINT FILED ON MAY 17, 1978
(ASST. SEC. EXH. 1), EACH ALLEGING VIOLATIONS OF SECTIONS 19(A)(1), (2),
(5) AND (6) OF THE ORDER. NOTICE OF HEARING ISSUED ON SEPTEMBER 15,
1978, FOR A HEARING ON NOVEMBER 7, 1978 (ASST. SEC. EXH. 1); ORDERS
RESCHEDULING HEARING ISSUED ON OCTOBER 31, 1978 (ASST. SEC. EXH. 2) AND
DECEMBER 5, 1978 (ASST. SEC. EXH. 3) WHICH FIRST RESCHEDULED THE HEARING
FOR NOVEMBER 30, 1978, AND SUBSEQUENTLY FOR JANUARY 24, 1979, AT 10:00
A.M.; AND ON JANUARY 19, 1979, AN ORDER CHANGING THE TIME FOR
COMMENCEMENT OF THE HEARING, FROM 10:00 A.M. TO 9:00 A.M. ISSUED,
PURSUANT TO WHICH A HEARING WAS DULY HELD BEFORE THE UNDERSIGNED ON
JANUARY 24, 1979, COMMENCING AT 9:00 A.M., IN WASHINGTON, D.C.
REPSONDENT'S MOTION TO DISMISS, ALTHOUGH RECEIVED AS PART OF THE RECORD,
HAS NOT, IN VIEW OF THE DECISION ON THE MERITS, BEEN SEPARATELY
CONSIDERED.
ALL PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
OPPORTUNITY TO BE HEAR, TO EXAMINE AND CROSS-EXAMINE WITNESSES, TO
INTRODUCE EVIDENCE BEARING ON THE ISSUES, AND TO PRESENT ORAL ARGUMENT
AT THE CONCLUSION OF THE TESTIMONY. AT THE CLOSE OF THE HEARING,
FEBRUARY 28, 1979, WAS FIXED AS THE DATE FOR THE FILING OF BRIEFS, WHICH
TIME WAS, ON MOTION OF COMPLAINANT, FOR GOOD CAUSE SHOWN, AND WITH
CONSENT OF RESPONDENT, SUBSEQUENTLY EXTENDED TO MARCH 30, 1979, AND EACH
PARTY HAS TIMELY FILED A COMPREHENSIVE AND HELPFUL BRIEF WHICH HAVE BEEN
CAREFULLY CONSIDERED. UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING
FINDINGS, CONCLUSIONS AND ORDER.
FINDINGS
EXCEPT FOR ONE DISPUTED ISSUE OF FACT (WHETHER THERE WAS NOTICE OF
THE INTENDED DECISION TO REFUSE TO ACCEPT DUES DEDUCTION AUTHORIZATIONS
EXECUTED AFTER THE EFFECTIVE DATE OF THE STATUTORY REORGANIZATION,
OCTOBER 1, 1977, AND WHETHER COMPLAINANT WAS AFFORDED AN OPPORTUNITY TO
BARGAIN WHICH IS DISCUSSED HEREINAFTER) THERE IS NO DISPUTE AS TO THE
FACTS, INDEED, FOR THE MOST PART THE PARTIES HAVE STIPULATED AS TO THE
FACTS AND AS TO EVIDENCE NOT STIPULATED THE PARTIES ARE IN AGREEMENT.
THE AGREED MATERIAL FACTS ARE AS FOLLOWS:
1. THE NATIONAL TREASURY EMPLOYEES UNION (NTEU) WAS CERTIFIED AS THE
EXCLUSIVE REPRESENTATIVE OF A NATIONWIDE BARGAINING UNIT OF FEDERAL
ENERGY ADMINISTRATION (FEA) EMPLOYEES ON APRIL 19, 1976.
2. ON MAY 3, 1977, FEA AND NTEU ENTERED INTO A NATIONAL INTERIM
AGREEMENT (JT. EXH. A). ARTICLE XIV, DURATION, PROVIDED, IN PART, AS
FOLLOWS:
"THE PROVISIONS OF THIS INTERIM AGREEMENT WILL BE EFFECTIVE FROM THE
DATE OF SIGNING UNTIL
THE EFFECTIVE DATE OF THE DEPARTMENT OF ENERGY REORGANIZATION OR
SEPTEMBER 30, 1977, WHICHEVER
COMES SOONER * * *" (JT. EXH. A)
THE PREAMBLE OF THE NATIONAL INTERIM AGREEMENT STATED, IN PART, AS
FOLLOWS:
"IN RECOGNITION OF THE IMPACT OF THE PURPOSED FEDERAL ENERGY
REORGANIZATION UPON PRESENT
FEA-NTEU MASTER AGREEMENT NEGOTIATIONS, THE FEDERAL ENERGY
ADMINISTRATION (FEA) AND THE
NATIONAL TREASURY EMPLOYEES UNION (NTEU) HEREBY ENTER INTO AN INTERIM
AGREEMENT * *
*" (JT. EXH. A)
3. ARTICLE VII OF THE FEA-NTEU NATIONAL INTERIM AGREEMENT PROVIDED
FOR DUES WITHHOLDING BY FEA. ARTICLE III SPECIFICALLY REFERS TO
"VOLUNTARY CASH DUES PAYMENT BY A MEMBER" AS WELL AS TO VOLUNTARY
WRITTEN AUTHORIZATIONS FOR PAYMENT OF DUES BY PAYROLL DEDUCTIONS.
4. PURSUANT TO THE DEPARTMENT OF ENERGY ORGANIZATION ACT, P.L.
95-91, FEA WAS ABOLISHED AS OF SEPTEMBER 30, 1977. TITLE III, SECTION
301 OF THAT ACT REQUIRED THE TRANSFER OF ALL FEA EMPLOYEES TO
RESPONDENT.
5. ON OCTOBER 18, 1977, RESPONDENT, COMPLAINANT AND THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES PREPARED A JOINT LETTER TO ACCOMPANY
REPRESENTATION PETITIONS "SUBMITTED JOINTLY BY THE 'DEPARTMENT OF
'ENERGY AND AFFECTED UNIONS" IN WHICH THEY STIPULATED AS FOLLOWS:
"WE JOINTLY STIPULATE THAT AS OF OCTOBER 1, 1977, A GOOD FAITH DOUBT
EXISTS AS TO THE
REPRESENTATIONAL STATUS OF THE FOUR BARGAINING UNITS REFERENCED IN
THE ENCLOSED
PETITIONS." (JT. EXH. D).
THE PETITIONS, CASE NOS. 22-08582(RA) THROUGH 22-08584(RA), WERE
FILED ON NOVEMBER 1, 1977.
6. FEA HAD PROCESSED FORM 1187 DUES DEDUCTION AUTHORIZATION RECEIVED
BEFORE ITS ABOLISHMENT, AS OF SEPTEMBER 30, 1977, AND RESPONDENT
CONTINUED TO HONOR DUES DEDUCTION AUTHORIZATIONS EXECUTED BY FEA
EMPLOYEES PRIOR TO THE DATE FEA CEASED TO EXIST, I.E., AUTHORIZATIONS
EXECUTED BEFORE OCTOBER 1, 1977.
7. BY LETTER DATED OCTOBER 31, 1977, COMPLAINANT SUBMITTED TO
RESPONDENT EIGHT FORM 1187 AUTHORIZATIONS EXECUTED AFTER OCTOBER 1, 1977
(TWO WERE EXECUTED ON OCTOBER 14, 1977; ONE ON OCTOBER 19, 1977, AND
FIVE WERE EXECUTED ON OCTOBER 14, 977) (UNION EXH. 1). RESPONDENT
RECEIVED COMPLAINANT'S LETTER OF OCTOBER 31, 1977, ON NOVEMBER 2, 1977,
AND ON NOVEMBER 3, 1977, RETURNED THE DUES DEDUCTION AUTHORIZATIONS
UNPROCESSED STATING:
"THE ATTACHED REQUESTS FOR DUES WITHHOLDINGS ARE BEING RETURNED
UNPROCESSED. THE INTERIM
AGREEMENT PROVIDING FOR DUES WITHHOLDING EXPIRES ON OCTOBER 1, 1977,
AND THESE 1187S ARE DATED
AFTER OCTOBER 1, 1977. WE WILL CONTINUE TO HONOR EXISTING DUES
WITHHOLDINGS." (UNION
EXH. 1).
8. ON OCTOBER 13, 1978, THE ASSISTANT SECRETARY ISSUED HIS DECISION
ON THE REPRESENTATION PETITIONS (CASE NOS. 22-08582(RA) THROUGH 22-08584
(RA)), U.S. DEPARTMENT OF ENERGY, A/SLMR NO. 1136 (1978), IN WHICH HE
FOUND THAT THE REORGANIZATION RESULTED IN A MATERIAL ALTERATION IN THE
SCOPE AND CHARACTER OF, INTER ALIA, THE UNIT REPRESENTED BY COMPLAINANT
NTEU AND ITS DISAPPEARANCE AS A RECOGNIZABLE APPROPRIATE UNIT AND THAT
"THE REORGANIZATION RENDERED", INTER ALIA, COMPLAINANT'S EXCLUSIVELY
RECOGNIZED UNIT "INAPPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
UNDER THE ORDER."
THE SOLE DISPUTED ISSUE OF FACT IS WHETHER RESPONDENT GAVE
COMPLAINANT NOTICE OF ITS DECISION, NOT TO ACCEPT DUES DEDUCTION
AUTHORIZATIONS EXECUTED AFTER OCTOBER 1, 1977, AND AFFORDED COMPLAINANT
AN OPPORTUNITY TO BARGAIN. IF RESPONDENT ACTED UNILATERALLY AND/OR
REFUSED TO BARGAIN, EITHER BEFORE OR AFTER IT REJECTED THE
AUTHORIZATIONS ON NOVEMBER 3, 1977, RESOLUTION OF THE DISPUTED FACTUAL
ISSUE WOULD BE NECESSARY IF RESPONDENT WERE OBLIGATED TO RECOGNIZE AND
BARGAIN WITH COMPLAINANT, TO RESOLVE THE 19(A)(1), (2), (5) AND (6)
VIOLATIONS ALLEGED IN THIS REGARD; BUT, IN MY VIEW, IT IS IMMATERIAL
WHETHER RESPONDENT GAVE COMPLAINANT NOTICE AND AN OPPORTUNITY TO BARGAIN
PRIOR TO IMPLEMENTATION OF ITS DECISION, OR, INDEED, WHETHER RESPONDENT
REFUSED TO BARGAIN, INASMUCH AS ANY VIOLATION IN THS REGARD IS DEPENDENT
ON COMPLAINANT BEING ENTITLED TO EXCLUSIVE RECOGNITION IN AN APPROPRIATE
UNIT AT THE TIME OF THE ALLEGED VIOLATION AND THE ASSISTANT SECRETARY IN
U.S. DEPARTMENT OF ENERGY, SUPRA, HAS ALREADY DETERMINED THAT "THE
REORGANIZATION RENDERED" COMPLAINANT'S EXCLUSIVELY RECOGNIZED UNIT
"INAPPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE
ORDER", A/SLMR NO. 1136. RESPONDENT WAS NOT, THEREFORE, UNDER ANY
OBLIGATION AFTER OCTOBER 1, 1977, THE DATE RESPONDENT BECAME AN
OPERATING AGENCY, TO ACCORD COMPLAINANT RECOGNITION. ACCORDINGLY, SUCH
CONDUCT, EVEN IF ESTABLISHED, COULD NOT CONSTITUTE A VIOLATION OF THE
ORDER. THIS WAS VERY PLAINLY STATED BY THE ASSISTANT SECRETARY, IN
DEFENSE SUPPLY AGENCY, DEFENSE PROPERTY DISPOSAL OFFICE, ABERDEEN
PROVING GROUND, ABERDEEN, MARYLAND, A/SLMR NO. 615, 6 A/SLMR 104 (1976),
AS FOLLOWS:
"ACCORDINGLY, AS * * * RESPONDENT WAS NEITHER A COEMPLOYER NOR A
SUCCESSOR EMPLOYER, I
CONCLUDE THAT AT ALL TIMES RELEVANT HEREIN IT WAS UNDER NO OBLIGATION
TO ACCORD THE
COMPLAINANT RECOGNITION * * * CONSEQUENTLY, THE RESPONDENT'S CONDUCT
HEREIN CANNOT BE DEEMED
VIOLATIVE OF * * * THE ORDER." (6 A/SLMR AT 108).
NEVERTHELESS, AS COMPLAINANT TAKES A VERY DIFFERENT VIEW OF THE LAW,
I DEEM IT EXPEDIENT TO RESOLVE THE FACTUAL DISPUTE IN THE EVENT THAT
SUCH RESOLUTION SHOULD BE DEEMED MATERIAL TO RESOLUTION OF THE ISSUES
INVOLVED.
MR. RONALD KNISLEY, CHIEF, EMPLOYEE LABOR-MANAGEMENT RELATIONS
BRANCH, OFFICE OF PERSONNEL OF RESPONDENT, CREDIBLY TESTIFIED, FROM HIS
MEMORY, FROM HIS CALENDAR AND FROM NOTES WHICH HE TOOK DURING EACH
MEETING, THAT HE MET MR. ROBERT TOBIAS, GENERAL COUNSEL OF COMPLAINANT,
AND TWO OTHER PEOPLE, ON SEPTEMBER 17, 1977; THAT THE SUBJECT OF DUES
WITHHOLDING WAS BROUGHT UP; THAT HE STATED THAT "WE WERE GOING TO HONOR
ALL PRESENT DUES WITHHOLDING THAT WERE IN EFFECT AS OF SEPTEMBER 30,
1977, AND THAT THEY WOULD NOT HONOR ANY NEW DUES WITHHOLDING AFTER THAT
DATE." (TR. 29). MR. KNISLEY TESTIFIED FURTHER THAT HIS CALENDAR SHOWED
THAT THE NEXT MEETING WITH COMPLAINANT WAS ON OCTOBER 21, 1977, AT 10:00
A.M., THAT MR. TOBIAS WAS PRESENT; AND THAT, FROM HIS MEMORY AND FROM
NOTES HE HAD TAKEN, HE SPECIFICALLY RECALLED THAT "WE AGAIN BROUGHT UP
THE SUBJECT OF DUES WITHHOLDING AND I MENTIONED THAT WE WERE NOT GOING
TO HONOR ANY NEW DUES WITHHOLDINGS." (TR. 29). MR. KNISLEY TESTIFIED
THAT ON NEITHER SEPTEMBER 17 NOR OCTOBER 21 WAS THERE ANY DISCUSSION OF
THE RATIONALE FOR NOT ACCEPTING DUES WITHHOLDINGS AFTER SEPTEMBER 30,
1977, AND THAT MR. TOBIAS HAD NOT MADE ANY OBJECTIONS. MR. KNISLEY
TESTIFIED THAT THE NEXT MEETING WITH COMPLAINANT WAS ON NOVEMBER 30,
1977, AT 1:00 P.M.; THAT PRESENT WERE MR. TOBIAS, MR. HOCKENBERRY AND
MR. ALLEN HERSH, ALL REPRESENTING COMPLAINANT; THAT ONE OF THE ITEMS
COVERED WAS DUES WITHHOLDING AND THAT MR. TOBIAS STATED THAT HE HAD
SEVERAL 1187S WHICH HAD BEEN REJECTED AND HE WOULD LIKE TO HAVE AN
EXPLANATION WHY RESPONDENT HAD REJECTED THEM; AND HE (MR. KNISLEY) HAD
EXPLAINED THE REASONS IN DETAIL; THAT MR. TOBIAS MADE A COUPLE OF
SUGGESTIONS WHICH RESPONDENT REJECTED; THAT MR. TOBIAS SAID "WELL, IT
LOOKS LIKE YOU HAVE SOME GOOD REASONS", OR WORDS TO THAT EFFECT; AND
THAT THIS WAS THE LAST MEETING ON THE SUBJECT BEFORE THE UNFAIR LABOR
PRACTICE CHARGE WAS FILED. (TR. 29-30).
MR. TOBIAS DID NOT SPECIFICALLY REMEMBER THE MEETINGS OF SEPTEMBER 27
OR OCTOBER 21, 1977, BUT DID NOT QUESTION THAT MEETINGS OCCURRED ON
THOSE DATES; BUT HE TESTIFIED THAT HE RECALLED NO DISCUSSION OF DUES
WITHHOLDING AND STRONGLY DENIED THAT THERE HAD BEEN ANY STATEMENT BY MR.
KNISLEY THAT NEW DUES WITHHOLDING AUTHORIZATIONS WOULD NOT BE ACCEPTED
AFTER OCTOBER 1, 1977, THAT "I CAN ASSURE YOU THAT IF THAT ISSUE HAD
BEEN RAISED, IT WOULD HAVE BEEN MET AND THERE WOULD HAVE BEEN A
WRESTLING MATCH OVER IT." (TR. 40). HOWEVER, MR. TOBIAS TESTIFIED THAT
MR. KNISLEY'S TESTIMONY CONCERNING THE NOVEMBER 30, 1977, DISCUSSION WAS
ACCURATE; THAT THEY DID ATTEMPT "AN INFORMAL RESOLUTION" AND THAT HE
(MR. TOBIAS) HAD SUGGESTED THAT THEY AGREE THAT ANYONE ON THE ROSTER OF
REA AS OF SEPTEMBER 30 WOULD BE THE PEOPLE FOR WHOM NEW 1187S WOULD BE
PROCESSED; THAT MR. KNISLEY REFUSED TO MAKE ANY ACCOMMODATION WHATEVER.
I DO NOT FIND MR. TOBIAS' DISCLAIMER CONVINCING. THE ONLY MATTER OF
IMMEDIATE CONCERN TO COMPLAINANT ON SEPTEMBER 27, 1977, WAS THAT ITS
EXISTING DUES WITHHOLDING AUTHORIZATIONS BE CONTINUED AND AS TO THOSE,
MR. KNISLEY STATED THEY WOULD BE HONORED. AS TO NEW AUTHORIZATIONS,
THIS WOULD BE OF SIGNIFICANCE ONLY IF, AND WHEN, COMPLAINANT HAD SUCH
AUTHORIZATIONS. TWO NEW AUTHORIZATIONS WERE SIGNED ON OCTOBER 14 AND
ANOTHER ON OCTOBER 19, BUT FIVE WERE SIGNED ON OCTOBER 25, 1977, ALL OF
WHICH STRONGLY SUGGESTS THAT, AFTER MR. KNISLEY TOLD MR. TOBIAS, FIRST
ON SEPTEMBER 27 AND AGAIN ON OCTOBER 21, THAT NEW AUTHORIZATIONS WOULD
NOT BE ACCEPTED AFTER OCTOBER 1, 1977, COMPLAINANT ACTIVELY SOLICITED
NEW AUTHORIZATIONS IN ORDER TO MAKE ITS DEMAND. IN ADDITION, RESPONDENT
GAVE THE SAME NOTICE DURING THE SAME WEEKS AS EACH MEETING WITH
COMPLAINANT TO THE UNIONS WHICH HAD DUES WITHHOLDING AGREEMENTS IN THE
CONTRACTS WITH THE FEDERAL POWER COMMISSION AND THE ENERGY RESEARCH AND
DEVELOPMENT ADMINISTRATION. ACCORDINGLY, I FULLY CREDIT MR. KNISLEY'S
TESTIMONY THAT HE ADVISED COMPLAINANT ON SEPTEMBER 17 AND, AGAIN, ON
OCTOBER 21, 1977, THAT NEW DUES DEDUCTION AUTHORIZATIONS WOULD NOT BE
ACCEPTED AFTER OCTOBER 1, 1977. RESPONDENT REJECTED 8 DUES
AUTHORIZATIONS EXECUTED AFTER OCTOBER 1, 1977, ON NOVEMBER 3, 1977, AND
ON NOVEMBER 30, 1977, THE PARTIES DISCUSSED THE MATTER AND DID ATTEMPT
AN INFORMAL RESOLUTION. THE RECORD DOES NOT SHOW THAT THERE WAS ANY
REQUEST TO BARGAIN IN THIS MATTER OTHER THAN THE DISCUSSION HAD ON
NOVEMBER 30, 1977. COMPLAINANT FILED ITS CHARGE (DATED MARCH 29, 1978)
ON MARCH 31, 1978 (JT. EXH. B), AND RESPONDENT REPLIED BY LETTER DATED
APRIL 28, 1978 (JT. EXH. C).
CONCLUSIONS
RESPONDENT NOTIFIED COMPLAINANT ON SEPTEMBER 27, 1977, AND, AGAIN, ON
OCTOBER 21, 1977, THAT IT WOULD NOT ACCEPT ANY NEW DUES DEDUCTION
AUTHORIZATIONS SUBMITTED AFTER OCTOBER 1, 1977; ON NOVEMBER 3, 1977,
RESPONDENT REJECTED EIGHT DUES DEDUCTION AUTHORIZATIONS EXECUTED AFTER
OCTOBER 1, 1977; ON NOVEMBER 30, 1977, THE PARTIES, AT COMPLAINANT'S
REQUEST, DISCUSSED THE MATTER AND ATTEMPTED, WITHOUT SUCCESS, TO REACH
AN INFORMAL RESOLUTION; AND NO FURTHER REQUEST TO NEGOTIATE WAS MADE BY
COMPLAINANT. THE COMPLAINT DOES NOT ALLEGE THAT RESPONDENT REFUSED TO
BARGAIN IN GOOD FAITH ON NOVEMBER 30, 1977, NOR DOES THE RECORD INDICATE
MORE THAN THAT THE PARTIES ATTEMPTED TO REACH AN "INFORMAL RESOLUTION"
AND THAT RESPONDENT DECLINED TO MAKE ANY ACCOMMODATION WHATEVER. WHILE
IT MAY BE DOUBTED THAT ANY BASIS HAS BEEN SHOWN ON THE RECORD TO SUPPORT
THE ALLEGATION THAT RESPONDENT REFUSED TO BARGAIN IN VIOLATION OF
SECTION 19(A)(6) OF THE ORDER, EVEN IF IT WERE ASSUMED, CONTRARY TO THE
RECORD AND FINDINGS HEREINABOVE, THAT RESPONDENT HAD ACTED UNILATERALLY
AND HAD REFUSED TO BARGAIN, ANY SUCH VIOLATION OF THE ORDER IS DEPENDENT
ON COMPLAINANT BEING ENTITLED TO EXCLUSIVE RECOGNITION AT THE TIME OF
THE ALLEGED VIOLATION AND THE ASSISTANT SECRETARY HAS ALREADY DETERMINED
THAT "THE REORGANIZATION RENDERED" COMPLAINANT'S EXCLUSIVELY RECOGNIZED
UNIT "INAPPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE
ORDER," DEPARTMENT OF ENERGY, A/SLMR NO. -136 (1978). CONSEQUENTLY,
RESPONDENT'S CONDUCT CANNOT BE DEEMED VIOLATIVE OF THE ORDER. DEFENSE
SUPPLY AGENCY, DEFENSE PROPERTY DISPOSAL OFFICE, ABERDEEN PROVING
GROUND, ABERDEEN, MARYLAND, A/SLMR NO. 615, 6 A/SLMR 104 (1976).
THE CONTRACT BETWEEN COMPLAINANT AND THE FEDERAL ENERGY
ADMINISTRATION WHICH HAD INCLUDED A DUES DEDUCTION PROVISION, HAD
EXPIRED BY ITS TERMS ON SEPTEMBER 30, 1977. IF THIS WERE ALL THAT WAS
INVOLVED, IT IS CLEAR THAT THE DECISION OF THE COUNCIL IN INTERNAL
REVENUE SERVICE, OGDEN SERVICE CENTER, ET AL. AND INTERNAL REVENUE
SERVICE, BROOKHAVEN SERVICE CENTER, FLRC NOS. 77A-40 AND 77A-92 (MARCH
17, 1978), REPORT NO. 147, MARCH 23, 1978, WOULD CONTROL AND THAT:
" * * * EXISTING PERSONNEL POLICIES AND PRACTICES AND MATTERS
AFFECTING WORKING CONDITIONS,
WHETHER OR NOT THEY ARE INCLUDED IN A NEGOTIATED AGREEMENT, CONTINUE
AS ESTABLISHED UPON THE
EXPIRATION OF A NEGOTIATED AGREEMENT, ABSENT AN EXPRESS AGREEMENT BY
THE PARTIES THAT SUCH
PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING
CONDITIONS TERMINATE UPON THE
EXPIRATION OF THAT AGREEMENT OR UNLESS OTHERWISE MODIFIED IN A MANNER
CONSISTENT WITH THE
ORDER."
ALTHOUGH THE COUNCIL SPECIFICALLY NOTED THAT ITS DECISION APPLIED TO
DUES WITHHOLDING, THE COUNCIL STATED,
"AS WITH OTHER PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING
WORKING CONDITIONS,
DUES WITHHOLDING PROVISIONS IN EXPIRED NEGOTIATED AGREEMENTS CONTINUE
IN EFFECT AND CANNOT BE
UNILATERALLY CHANGED EXCEPT AS CONSISTENT WITH THE BARGAINING
OBLIGATION UNDER SECTION 11(A)
OF THE ORDER * * * "(N. 13)
OF COURSE, THIS CASE INVOLVES NOT ONLY THE EXPIRATION OF THE NTEU-FEA
AGREEMENT, BUT MORE IMPORTANT: A) THE STATUTORY REORGANIZATION OF FEA,
AND OTHER AGENCIES, INTO THE DEPARTMENT OF ENERGY; AND B) THE
DETERMINATION BY THE ASSISTANT SECRETARY THAT THE REORGANIZATION
RESULTED IN A MATERIAL ALTERATION OF THE SCOPE AND CHARACTER OF, INTER
ALIA, THE UNIT REPRESENTED BY COMPLAINANT AND ITS DISAPPEARANCE AS A
RECOGNIZABLE APPROPRIATE UNIT AND THAT "THE REORGANIZATION," INTER ALIA,
RENDERED COMPLAINANT'S EXCLUSIVELY RECOGNIZED UNIT "INAPPROPRIATE FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER."
BECAUSE THIS CASE INVOLVES A REORGANIZATION, NOT MERELY THE
EXPIRATION OF A NEGOTIATED AGREEMENT, IT IS GOVERNED BY THE COUNCIL'S
DECISION IN DEFENSE SUPPLY AGENCY, DEFENSE PROPERTY DISPOSAL OFFICE,
ABERDEEN PROVING GROUND, ABERDEEN, MARYLAND, FLRC NO. 74A-22, 3 FLRC 789
(1975). AT THE OUTSET, IT MUST BE NOTED THAT THE COUNCIL DEFINED
"SUCCESSOR" AS FOLLOWS:
"IN OUR VIEW, AN AGENCY OR EMPLOYING ENTITY IS A 'SUCCESSOR,' I.E.,
STANDS IN THE STEAD,
OF ANOTHER AGENCY OR EMPLOYING ENTITY FOR PURPOSES OF ACCORDING
EXCLUSIVE RECOGNITION UNDER
10(A) WHEN: 1) THE RECOGNIZED UNIT IS TRANSFERRED SUBSTANTIALLY
INTACT TO THE GAINING
EMPLOYER, (2) THE APPROPRIATENESS OF THE UNIT REMAINS UNIMPAIRED IN
THE GAINING EMPLOYER; AND
(3) A QUESTION CONCERNING REPRESENTATION IS NOT TIMELY RAISED AS TO
THE REPRESENTATIVE STATUS
OF THE INCUMBENT LABOR ORGANIZATION." (3 FLRC AT 802).
THUS, IF RESPONDENT HAD BEEN A "SUCCESSOR" IT WOULD HAVE ASSUMED THE
SAME DUTY AS FEA TO GRANT RECOGNITION TO COMPLAINANT UNDER SECTION 10(A)
OF THE ORDER, BUT, OF COURSE, IT HAS BEEN DETERMINED THAT RESPONDENT WAS
NOT THE "SUCCESSOR;" THAT THE REORGANIZATION RESULTED IN A MATERIAL
ALTERATION IN THE SCOPE AND CHARACTER OF THE UNIT REPRESENTED BY
COMPLAINANT AND ITS DISAPPEARANCE AS A RECOGNIZABLE APPROPRIATE UNIT AND
THAT THE REORGANIZATION RENDERED COMPLAINANT'S EXCLUSIVELY RECOGNIZED
UNIT INAPPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE
ORDER. BECAUSE A DETERMINATION WAS MADE THAT RESPONDENT WAS NOT A
"SUCCESSOR," RESPONDENT OWED NO DUTY TO RECOGNIZE OR TO BARGAIN WITH
COMPLAINANT. THIS, ALSO, WAS PLAINLY STATED BY THE COUNCIL AS FOLLOWS:
"IF AS A RESULT OF A REORGANIZATION A DETERMINATION IS MADE THAT THE
GAINING EMPLOYER IS
NOT A 'SUCCESSOR,' THEN OF COURSE SUCH EMPLOYER OWES NO DUTY TO
BARGAIN WITH THE LABOR
ORGANIZATION WHICH PREVIOUSLY REPRESENTED THE AFFECTED EMPLOYEES * *
* " (3 FLRC AT 803-804,
N. 19).
IT IS RECOGNIZED THAT THE COUNCIL STATED,
" * * * MOREOVER, UNTIL THE QUESTION OF 'SUCCESSORSHIP' IS RESOLVED
OR UNTIL OTHER ISSUES
RAISED BY THE REORGANIZATION ARE DECIDED (E.G., QUESTIONS CONCERNING
REPRESENTATION, UNIT
QUESTIONS, OR THE LIKE), THE GAINING EMPLOYER IS LIKEWISE ENJOINED,
IN ORDER TO ASSURE
STABILITY OF LABOR RELATIONS AND THE WELL-BEING OF ITS EMPLOYEES, TO
MAINTAIN RECOGNITION AND
TO ADHERE TO THE TERMS OF THE PRIOR AGREEMENT, INCLUDING DUES
WITHHOLDING, TO THE MAXIMUM
EXTENT POSSIBLE." (NOTING, HOWEVER, IN N. 19 THAT "IF AS A RESULT OF
A REORGANIZATION A
DETERMINATION IS MADE THAT THE GAINING EMPLOYER IS NOT A 'SUCCESSOR,'
THEN OF COURSE SUCH
EMPLOYER OWES NO DUTY TO BARGAIN WITH THE LABOR ORGANIZATION WHICH
PREVIOUSLY REPRESENTED THE
AFFECTED EMPLOYEES * * * )" (3 FLRC AT 803 AND N. 19 PP. 803-804).
OBVIOUSLY, THE PHRASE "TO THE MAXIMUM EXTENT POSSIBLE" IMPLIES
SOMETHING LESS THAN ABSOLUTE ADHERENCE TO TERMS OF A PRIOR DUES
WITHHOLDING AGREEMENT. RESPONDENT POINTS FIRST TO THE REGULATIONS OF
THE CIVIL SERVICE COMMISSION, SPECIFICALLY MADE APPLICABLE BY SECTION 21
OF THE ORDER, /5/ WHICH PROVIDES, IN RELEVANT PART, AS FOLLOWS:
"(C) EXCEPT AS PROVIDED IN PARAGRAPH (D) OF THIS SECTION, AN AGENCY
SHALL DISCONTINUE
PAYING AN ALLOTMENT WHEN THE ALLOTTER * * * TRANSFERS BETWEEN
AGENCIES, MOVES OR IS REASSIGNED
* * * WITHIN THE AGENCY OUTSIDE THE UNIT FOR WHICH THE LABOR
ORGANIZATION HAS BEEN ACCORDED
EXCLUSIVE RECOGNITION * * * OR WHEN THE DUES WITHHOLDING AGREEMENT
BETWEEN THE AGENCY AND THE
LABOR ORGANIZATION IS TERMINATED, SUSPENDED, OR CEASES TO BE
APPLICABLE TO THE ALLOTTER.
"(D) AN AGENCY MAY PERMIT AN EMPLOYEE, TRANSFERRING IN FROM ANOTHER
AGENCY, OR TRANSFERRING
WITHIN THE SAME AGENCY, TO CONTINUE ON A TEMPORARY BASIS TO MAKE AN
ALLOTMENT FOR DUES TO A
LABOR ORGANIZATION UNDER THE FOLLOWING CONDITIONS:
(1) THE TRANSFER OF THE EMPLOYEE IS IN CONNECTION WITH A TRANSFER OF
FUNCTION OF
REORGANIZATION; AND
(2) THE EMPLOYEE WAS IN A UNIT OF RECOGNITION, WHICH UNIT WAS
TRANSFERRED IN WHOLE OR PART
TO ANOTHER AGENCY WITH, OR DIFFERENT ORGANIZATIONAL GROUP WITHIN THE
SAME AGENCY.
(3) A SUBSTANTIAL QUESTION OF SUCCESSORSHIP EXISTS * * *; AND
(4) THE CONTINUATION OF DUES ALLOTMENT IS ON A TEMPORARY BASIS UNTIL
SUCH TIME AS THE
RECOGNITION STATUS OF THE UNIT IS CLARIFIED."
(5 C.F.R. SECTION 550.322(C) AND (D))
THE REGULATIONS CLEARLY SPEAK IN TERMS OF "TO CONTINUE ON A TEMPORARY
BASIS TO MAKE AN ALLOTMENT" AND "THE CONTINUATION OF DUES ALLOTMENT"
WHICH RESPONDENT ASSERTS ASSUMES AN EXISTING ALLOTMENT AT THE TIME OF
THE TRANSFER AND MAKES NO PROVISION FOR A NEW ALLOTMENT AFTER A TRANSFER
HAS OCCURRED. I AM AWARE THAT, IN N. 22; THE COUNCIL REFERRED TO A CSC
INTERPRETATION THAT 550.322(D) SHOULD BE GIVEN" * * * A LIBERAL
INTERPRETATION IN THEIR APPLICATION. SUCH INTERPRETATION ALLOWS THE
CONTINUED ADMINISTRATION OF EXISTING DUES WITHHOLDING AGREEMENTS PENDING
THE RESOLUTION OF REPRESENTATION AND SUCCESSORSHIP ISSUES INCIDENT TO
AGENCY REORGANIZATION." (3 FLRC AT 806, N. 22). IT IS ASSUMED THAT,
UNDER RATIONALE OF THE COUNCIL, AS SET FORTH IN HEADQUARTERS, UNITED
STATES ARMY AVIATION SYSTEMS COMMAND (AVSCOM), FLRC NO. 72A-30, 1 FLRC
473 (1973) AND DEFENSE SUPPLY AGENCY, SUPRA, RESPONDENT WOULD HAVE BEEN
PROTECTED FROM 19(A)(3) OR 19(A)(6) VIOLATIONS HAD IT ALLOWED THE
CONTINUED ADMINISTRATION OF THE FEA-NTEU DUES WITHHOLDING AGREEMENT
PENDING RESOLUTION OF THE REPRESENTATION AND SUCCESSORSHIP ISSUES.
DEPARTMENT OF THE ARMY, U.S. ARMY ELECTRONICS COMMAND FORT MONMOUTH, NEW
JERSEY, A/SLMR NO. 617, 6 A/SLMR 111 (1976). RESPONDENT DID NOT DO SO
FOR VARIOUS REASONS, INCLUDING ITS CONCLUSION THAT THE PURPOSE AND
INTENT OF THE COUNCIL'S DECISIONS IN AVSCOM AND DEFENSE SUPPLY AGENCY
WAS THAT AN AGENCY, WHEN FACED WITH A REORGANIZATION WHICH CREATES A
GOOD FAITH DOUBT OF THE PRIOR UNITS OF EXCLUSIVE REPRESENTATION, MUST
MAINTAIN THE STATUS QUO BY HONORING EXISTING DUES ALLOTMENTS BUT MUST,
AT THE SAME TIME, MAINTAIN STRICT NEUTRALITY AND MUST NOT ACCEPT NEW
AUTHORIZATIONS WHEN IT COULD NOT POSSIBLY DETERMINE WHETHER THE
EMPLOYEES WERE, AFTER THE REORGANIZATION, WORKING IN ANY PARTICULAR
UNION'S PRIOR UNIT OF RECOGNITION. OF COURSE, THE CORRECTNESS OF
RESPONDENT'S INABILITY TO SO DETERMINE HAS BEEN FULLY CONFIRMED BY THE
DECISION OF THE ASSISTANT SECRETARY IN DEPARTMENT OF ENERGY, A/SLMR NO.
1136 (1978). I FIND RESPONDENT'S POSITION PERSUASIVE; BUT EVEN IF
RESPONDENT HAD, WITHOUT JUSTIFICATION, REFUSED TO ACCEPT NEW DUES
DEDUCTION AUTHORIZATIONS, THE RISK ASSUMED WAS THAT IT WOULD BE
DETERMINED TO BE THE "SUCCESSOR" TO FEA. IN FACT, THE ASSISTANT
SECRETARY DETERMINED THAT RESPONDENT WAS NOT THE "SUCCESSOR" AND THAT
THE REORGANIZATION RENDERED COMPLAINANT'S EXCLUSIVELY RECOGNIZED UNIT
INAPPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER,
DEPARTMENT OF ENERGY, SUPRA, AND RESPONDENT'S CONDUCT COULD NOT, IN ANY
EVENT, BE DEEMED VIOLATIVE OF THE ORDER. DEFENSE SUPPLY AGENCY,
SUPPLEMENTAL DECISION AND ORDER, A/SLMR NO. 615, 6 A/SLMR 105, 108
(1976).
STATED OTHERWISE, ALTHOUGH THE COUNCIL STATED IN ABERDEEN, SUPRA,
THAT THE GAINING EMPLOYER IS "ENJOINED" TO MAINTAIN RECOGNITION AND TO
ADHERE TO THE TERMS OF THE PRIOR AGREEMENT, INCLUDING DUES WITHHOLDING,
UNTIL THE QUESTION OF "SUCCESSORSHIP" IS RESOLVED, AN AGENCY WHICH DOES
NOT DO SO, NEVERTHELESS, MAY BE HELD TO HAVE VIOLATED THE ORDER ONLY IF
IT IS DETERMINED TO BE THE "SUCCESSOR." WHERE, AS HERE, IT HAS BEEN
DETERMINED THAT RESPONDENT WAS NOT THE "SUCCESSOR" AND, INDEED, THAT
COMPLAINANT'S EXCLUSIVELY RECOGNIZED UNIT WAS INAPPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER, RESPONDENT'S FAILURE,
OR REFUSAL, TO MAINTAIN RECOGNITION, AND TO ADHERE TO THE TERMS OF THE
PRIOR AGREEMENT, MAY NOT CONSTITUTE A VIOLATION OF THE ORDER FOR THE
REASON THAT RESPONDENT OWED NO DUTY TO RECOGNIZE, OR TO BARGAIN WITH,
COMPLAINANT.
FOR THE FOREGOING REASONS, I FIND THAT RESPONDENT DID NOT VIOLATE
SECTIONS 19(A)(1), (2), (5) OR (6) OF THE ORDER AND, ACCORDINGLY, THE
COMPLAINT HEREIN IS DISMISSED.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: 1 MAY 1979
WASHINGTON, D.C.
ORDER DENYING RESPONDENT'S MOTION FOR RECONSIDERATION AND
FOR STAY PENDING RECONSIDERATION
THE RESPONDENT MOVED THAT THE AUTHORITY RECONSIDER ITS DECISION AND
ORDER, AND STAY SUCH ORDER PENDING RECONSIDERATION, IN THE PRESENT CASE.
THE COMPLAINANT FILED AN OPPOSITION TO THIS MOTION.
UPON CAREFUL CONSIDERATION OF THE RESPONDENT'S MOTION AND SUPPORTING
BRIEF, AND THE COMPLAINANT'S OPPOSITION THERETO, THE AUTHORITY HAS
DECIDED, FOR THE REASONS SET FORTH BELOW, THAT NO PERSUASIVE ARGUMENT
HAS BEEN ADVANCED BY THE RESPONDENT FOR RECONSIDERATION OF THE DECISION
AND ORDER IN THIS CASE. THEREFORE, THE RESPONDENT'S MOTION FOR
RECONSIDERATION AND FOR A STAY PENDING RECONSIDERATION MUST BE DENIED.
THE RESPONDENT REQUESTS THAT THE AUTHORITY RECONSIDER ITS DECISION
THAT RESPONDENT'S DETERMINATION NOT TO ACCEPT DUES WITHHOLDING
AUTHORIZATION REQUESTS EXECUTED AFTER OCTOBER 1, 1977, THE DATE OF THE
STATUTORY REORGANIZATION WHICH CREATED THE RESPONDENT, VIOLATED SECTION
19(A)(1) AND (5) OF THE ORDER. THE AUTHORITY RELIED, IN THIS REGARD, ON
DEFENSE SUPPLY AGENCY, DEFENSE PROPERTY DISPOSAL OFFICE, ABERDEEN
PROVING GROUND, ABERDEEN, MARYLAND, 3 FLRC 787, FLRC NO. 74A-22 (1975).
WHILE THE RESPONDENT CONTENDS IN ITS MOTION FOR RECONSIDERATION
ESSENTIALLY THAT THE AUTHORITY HAS MISINTERPRETED THE CITED CASE LAW
UNDER THE ORDER, THE ARGUMENTS ADVANCED BY THE RESPONDENT RELATE TO
MATTERS PREVIOUSLY CONSIDERED AND DECIDED BY THE AUTHORITY CONSISTENT
WITH APPLICABLE LAW AND AFFORD NO COMPELLING BASIS FOR RECONSIDERATION
OF THE AUTHORITY'S DECISION.
THE RESPONDENT ALSO REQUESTS THAT THE AUTHORITY RECONSIDER ITS ORDER
IN THE PRESENT CASE ASSERTEDLY BECAUSE (1) THE CEASE AND DESIST ORDER IS
VAGUE; AND (2) THE ORDER, INSOFAR AS IT REQUIRES THAT THE NOTICE BE
POSTED NATIONWIDE AND SIGNED BY THE AGENCY HEAD, IS OVERLY BROAD. THESE
CONTENTIONS ARE NOT CONVINCING. AS TO (1), THE CEASE AND DESIST ORDER
IS CAREFULLY CONFINED TO CONDUCT BY THE RESPONDENT LIKE OR RELATED TO
THAT HERE FOUND VIOLATIVE OF THE ORDER, AND ANY QUESTION AS TO ITS
SPECIFIC APPLICATION MAY BE RAISED IN COMPLIANCE PROCEEDINGS. WITH
RESPECT TO (2), THE UNIT REPRESENTED BY THE COMPLAINANT AT THE TIME OF
THE REORGANIZATION WAS NATIONWIDE IN SCOPE AND THE POSTING IS THEREFORE
PROPERLY ON A NATIONWIDE BASIS. FURTHER, THE DEPARTMENT OF ENERGY, NOT
A SUBDIVISION THEREOF, WAS FOUND TO HAVE COMMITTED THE SUBJECT
VIOLATIONS, AND THUS THE ORDER PROPERLY DIRECTS THE AGENCY HEAD TO SIGN
THE POSTED NOTICE.
ACCORDINGLY, SINCE NO ADEQUATE REASON HAS BEEN ADVANCED BY THE
RESPONDENT IN SUPPORT OF ITS REQUEST FOR RECONSIDERATION AND A STAY
PENDING RECONSIDERATION,
IT IS HEREBY ORDERED THAT THE RESPONDENT'S MOTION FOR RECONSIDERATION
AND STAY IN THIS MATTER BE, AND IT HEREBY IS, DENIED.
ISSUED, WASHINGTON, D.C., JUNE 16, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/2/ U.S. DEPARTMENT OF ENERGY, 8 A/SLMR 1149, A/SLMR NO. 1136 (1978).
/3/ IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, WE CONCLUDE THAT
THERE IS NO BASIS, IN THE CIRCUMSTANCES OF THIS CASE, TO SUPPORT THE
19(A)(2) AND (6) ALLEGATIONS.
/4/ SEE ALSO DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, YUMA
PROJECTS OFFICE, YUMA, ARIZONA, 4 FLRC 484, FLRC NO. 74A-52 (1976).
/5/ INDEED, SECTION 21 NOT ONLY PROVIDES THAT "SUCH AN ALLOTMENT IS
SUBJECT TO THE REGULATION OF THE CIVIL SERVICE COMMISSION" BUT, FURTHER
STATES:
"SUCH AN ALLOTMENT TERMINATES WHEN-- (1) THE DUES WITHHOLDING
AGREEMENT BETWEEN THE AGENCY
AND THE LABOR ORGANIZATION IS TERMINATED OR CEASES TO BE APPLICABLE
TO THE EMPLOYEE."