Department of Energy (Respondent) and National Treasury Employees Union (Complainant)

 



[ 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