U.S. Department of the Navy, Naval Air Engineering Center, Lakehurst, New Jersey (Activity/Petitioner) and National Federation of Federal Employees, Local 23/284 (Petitioner) and International Association of Machinists and Aerospace Workers, AFL-CIO, Local 2581 (Intervenor); U.S. Department of the Navy, Naval Air Engineering Center, Lakehurst, New Jersey (Respondent) and International Association of Machinists and Aerospace Workers, Local 2581, AFL-CIO (Complainant) 



[ v03 p568 ]
03:0568(93)CA
The decision of the Authority follows:


 3 FLRA No. 93 
 
 U.S. DEPARTMENT OF THE NAVY
 NAVAL AIR ENGINEERING CENTER,
 LAKEHURST, NEW JERSEY
 Activity/Petitioner
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 23/284,
 Intervenor
 
 and
 
 INTERNATIONAL ASSOCIATION OF
 MACHINIST AND AEROSPACE WORKERS,
 AFL-CIO, LOCAL 2581
 Intervenor
                                            Assistant Secretary 
                                            Case No. 32-05035(RA)
 
 
 U.S. DEPARTMENT OF THE NAVY
 NAVAL AIR ENGINEERING CENTER,
 LAKEHURST, NEW JERSEY
 Respondent
 
 and
 
 INTERNATIONAL ASSOCIATION OF
 MACHINISTS AND AEROSPACE WORKERS,
 AFL-CIO, LOCAL 2581
 Complainant
  
                                            Assistant Secretary 
                                            Case No. 32-05681(CA)
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE ENTITLED PROCEEDING ISSUED
 HIS RECOMMENDED DECISION AND ORDER 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.  HE ALSO
 RECOMMENDED THAT COMPLAINANT'S OBJECTION TO THE RUNOFF ELECTION BE
 OVERRULED AND THAT A CERTIFICATION OF REPRESENTATIVE BE ISSUED BY THE
 REGIONAL DIRECTOR.  NO EXCEPTIONS WERE FILED 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 NUMBER 2 OF 1978 (43 FED. REG. 36040)1980)), WHICH TRANSFER OF
 FUNCTION IS IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND
 REGULATIONS (45 FED. REG.  3482(1980)).  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 SUBJECT
 CASE, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
 FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS AS MODIFIED BELOW.
 
    THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,
 AFL-CIO, LOCAL 2581 (IAM) FILED THE SUBJECT COMPLAINT ALLEGING THAT THE
 U.S. DEPARTMENT OF THE NAVY, NAVAL AIR ENGINEERING CENTER, LAKEHURST,
 NEW JERSEY (RESPONDENT) VIOLATED SECTION 19(A)(1) AND (5) OF THE ORDER
 BY ITS REFUSAL TO ACCORD APPROPRIATE RECOGNITION TO THE IAM, BY ITS
 UNILATERAL TERMINATION OF THE PARTIES' NEGOTIATED AGREEMENT, AND BY ITS
 REFUSAL TO PROCESS GRIEVANCES UNDER THAT NEGOTIATED AGREEMENT.  THE IAM
 ALSO ALLEGED THESE SAME ACTIONS OF THE RESPONDENT AS THE BASIS FOR AN
 OBJECTION TO THE CONDUCT OF THE RUNOFF ELECTION HELD IN THE SUBJECT RA
 CASE PURSUANT TO THE DECISION AND DIRECTION OF ELECTION OF THE ASSISTANT
 SECRETARY IN CASE NO.  32-05035(RA) (SEE U.S. DEPARTMENT OF THE NAVY,
 NAVAL ENGINEERING CENTER, LAKEHURST, NEW JERSEY, 8 A/SLMR 912, A/SLMR
 NO. 1104(1978)).  THE OTHER OBJECTIONS TO THE CONDUCT OF THE RUNOFF
 ELECTION FILED BY THE IAM WERE OVERRULED BY THE REGIONAL DIRECTOR, AND
 THE IAM FAILED TO FILE A TIMELY REQUEST FOR REVIEW AS TO THOSE
 OBJECTIONS.
 
    THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE RESPONDENT DID NOT
 VIOLATE SECTION 19(A)(1) AND (5) OF THE ORDER AS ALLEGED, AND
 RECOMMENDED THAT THE COMPLAINT BE DISMISSED.  IN ADDITION, HE FOUND THAT
 THIS CONDUCT DID NOT INTERFERE WITH A FAIR ELECTION AND RECOMMENDED THAT
 THE OBJECTION BE OVERRULED.  IN REGARD TO THE UNFAIR LABOR PRACTICE
 ALLEGATIONS, THE ADMINISTRATIVE LAW JUDGE NOTED THAT IN THE DECISION AND
 DIRECTION OF ELECTION IN CASE NO.  32-05035(RA) ABOVE, THE ASSISTANT
 SECRETARY CONCLUDED THAT THE JUNE 6, 1977 REORGANIZATION CREATED A NEW
 ORGANIZATIONAL ENTITY, AND FUNDAMENTALLY ALTERED THE CHARACTER AND SCOPE
 OF SEVERAL EXCLUSIVE RECOGNIZED UNITS, INCLUDING THE UNIT REPRESENTED BY
 THE IAM, AND THAT, AS A RESULT, SUCH UNITS WERE NO LONGER APPROPRIATE
 FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER.  UNDER THESE
 CIRCUMSTANCES, THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE AGENCY HAD NO
 OBLIGATION TO CONTINUE TO ACCORD EXCLUSIVE RECOGNITION TO ANY OF THE
 LABOR ORGANIZATIONS AS EXCLUSIVE REPRESENTATIVE.  ACCORDINGLY, HE
 CONCLUDED THAT RESPONDENT DID NOT VIOLATE SECTION 19(A)(1) AND (5) OF
 THE ORDER, WHEN, IN RELIANCE ON THE ASSISTANT SECRETARY'S DECISION, IT
 WITHDREW ITS RECOGNITION FROM IAM.  FOR ESSENTIALLY THE SAME REASONS,
 THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE OBJECTION TO THE RUNOFF
 ELECTION WAS WITHOUT MERIT, AND RECOMMENDED THAT IT BE OVERRULED, AND
 APPROPRIATE CERTIFICATION BE ISSUED.
 
    CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THE AUTHORITY CONCLUDES
 THAT RESPONDENT VIOLATED SECTION 19(A)(1) AND (5) OF THE ORDER BY ITS
 ACTIONS HEREIN.  FURTHER, WHILE IN AGREEMENT WITH THE ADMINISTRATIVE LAW
 JUDGE THAT THE OBJECTION TO THE RUNOFF ELECTION BE OVERRULED, THE
 AUTHORITY REACHES THIS CONCLUSION FOR DIFFERENT REASONS.
 
    WITH REGARD TO THE ALLEGED UNFAIR LABOR PRACTICE, IT IS THE
 AUTHORITY'S VIEW THAT THE MATTER IS CONTROLLED BY THE DECISION OF THE
 FEDERAL LABOR RELATIONS COUNCIL IN DEPARTMENT OF THE INTERIOR, BUREAU OF
 RECLAMATION, YUMA PROJECTS OFFICE, YUMA, ARIZONA, 4 FLRC 484, FLRC NO.
 74A-52(1976).  IN THE YUMA CASE, ABOVE, THE COUNCIL ADDRESSED THE
 QUESTION OF AN AGENCY'S OBLIGATION UNDER THE EXECUTIVE ORDER, TO AN
 EXCLUSIVE BARGAINING REPRESENTATIVE FOLLOWING A REORGANIZATION AND
 DURING THE PENDENCY OF A REPRESENTATION PETITION.  IN THAT REGARD, THE
 COUNCIL STATED:
 
    THEREFORE, FOLLOWING A REORGANIZATION AND DURING THE PENDENCY OF A
 REPRESENTATION PETITION,
 
    THE OBLIGATION OF AN AGENCY UNDER THE ORDER, WITH RESPECT TO
 PERSONNEL POLICIES AND PRACTICES
 
    AND MATTERS AFFECTING THE WORKING CONDITIONS OF EMPLOYEES WHO ARE
 COVERED BY THE PETITION, IS
 
    NOT TO MAINTAIN THE STATUS QUO ABSENT EVIDENCE OF AN OVERRIDING
 EXIGENCY, AS HELD IN THE
 
    PRESENT CASE BY THE ASSISTANT SECRETARY, BUT INSTEAD TO MAINTAIN
 RECOGNITION AND TO ADHERE TO
 
    TERMS OF THE PRIOR AGREEMENT TO THE MAXIMUM EXTENT POSSIBLE UNTIL THE
 REPRESENTATION MATTER IS
 
    RESOLVED.
 
    WITH RESPECT TO THE PRECISE NATURE OF THE OBLIGATION TO MAINTAIN
 RECOGNITION AND TO ADHERE
 
    TO THE TERMS OF THE PRIOR AGREEMENT TO THE MAXIMUM EXTENT POSSIBLE
 UNTIL THE REPRESENTATION
 
    ISSUES RAISED BY THE REORGANIZATION ARE RESOLVED, THIS MEANS THAT
 CONSISTENT WITH THE
 
    CIRCUMSTANCES OF THE REORGANIZATION AND WITH THE NECESSARY
 FUNCTIONING OF THE AGENCY, AN
 
    AGENCY MUST CONTINUE TO RECOGNIZE THE STATUS OF AN INCUMBENT LABOR
 ORGANIZATION AS THE
 
    EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES;  ADHERE TO THE TERMS OF
 EXISTING AGREEMENTS;  AND
 
    OTHERWISE MAINTAIN EXISTING PERSONNEL POLICIES AND PRACTICES AND
 MATTERS AFFECTING WORKING
 
    CONDITIONS TO THE EXTENT CONSISTENT WITH THE BARGAINING OBLIGATION
 UNDER SECTION 11(A) OF THE
 
    ORDER.  APPLYING THESE PRINCIPLES TO THE INSTANT CASE, WHILE THE
 ASSISTANT SECRETARY HAD DETERMINED THAT THE PREVIOUSLY EXISTING UNIT WAS
 NO LONGER APPROPRIATE, THE REPRESENTATIONAL MATTER WAS STILL PENDING.
 THAT IS, THE REPRESENTATION CASE WHICH WOULD RESOLVE THE ISSUE OF
 REPRESENTATION FOR THE EFFECTED EMPLOYEES WAS STILL BEING PROCESSED.  AS
 STATED IN YUMA, DURING THIS PERIOD THE AGENCY IS MANDATED UNDER
 EXECUTIVE ORDER REQUIREMENTS, TO MAINTAIN RECOGNITION AND TO ADHERE TO
 TERMS OF THE PRIOR AGREEMENT TO THE MAXIMUM EXTENT POSSIBLE.  HOWEVER,
 IN THE INSTANT CASE, AS FOUND BY THE ADMINISTRATIVE LAW JUDGE, THE
 AGENCY WITHDREW RECOGNITION AND TERMINATED THE AGREEMENT, INCLUDING
 REFUSING TO PROCESS GRIEVANCES UNDER THE AGREEMENT.  UNDER THESE
 CIRCUMSTANCES, THE AUTHORITY CONCLUDES THAT RESPONDENT HEREIN VIOLATED
 SECTION 19(A)(1) AND (5) OF THE ORDER.
 
    HOWEVER, WITH REGARD TO THE OBJECTION TO THE RUNOFF ELECTION, THE
 AUTHORITY CONCLUDES, IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE,
 THAT THE OBJECTION SHOULD BE OVERRULED, ALTHOUGH FOR DIFFERENT REASONS.
 THE RECORD IS CLEAR THAT THE BASIS FOR THE OBJECTION IS THE SAME CONDUCT
 WHICH WAS THE GRAVAMEN OF THE SUBJECT UNFAIR LABOR PRACTICE COMPLAINT.
 IT IS EQUALLY CLEAR FROM THE RECORD THAT THE ALLEGED CONDUCT, WHICH HAS
 ALREADY BEEN DETERMINED TO HAVE CONSTITUTED AN UNFAIR LABOR PRACTICE,
 OCCURRED PRIOR TO THE HOLDING OF THE FIRST ELECTION HEREIN.  IN REPORT
 ON A RULING OF THE ASSISTANT SECRETARY, REPORT NO. 50, IT WAS HELD THAT:
 
    THE CRITICAL PERIOD PRECEDING A RUNOFF ELECTION DURING WHICH
 OBJECTIONABLE CONDUCT OF ONE
 
    PARTY MAY BE USED AS GROUNDS FOR SETTING ASIDE THE RUNOFF ELECTION
 BEGINS RUNNING FROM THE
 
    DATE OF THE FIRST ELECTION.  CONDUCT OCCURRING PRIOR TO THE FIRST
 ELECTION, AND NOT URGED AS
 
    OBJECTION TO THAT ELECTION, MAY NOT BE CONSIDERED AS GROUNDS FOR
 SETTING ASIDE THE RUNOFF
 
    ELECTION(.)
 
    UNDER THESE CIRCUMSTANCES THE AUTHORITY CONCLUDES THAT THE OBJECTION
 WAS UNTIMELY FILED, AND THUS, SHOULD BE OVERRULED, AND AN APPROPRIATE
 CERTIFICATION SHOULD BE ISSUED BY THE REGIONAL DIRECTOR.  /1/
 
                                   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 U.S. DEPARTMENT OF THE NAVY, NAVAL AIR ENGINEERING CENTER,
 LAKEHURST, NEW JERSEY SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REFUSING TO ACCORD APPROPRIATE RECOGNITION TO A LAWFULLY
 DESIGNATED EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, AFTER A
 REORGANIZATION AND DURING THE PENDENCY OF A REPRESENTATION MATTER, OR
 REFUSING TO ADHERE TO THE TERMS OF ITS NEGOTIATED AGREEMENT WITH THE
 EXCLUSIVE REPRESENTATIVE, TO THE MAXIMUM EXTENT POSSIBLE, UNTIL THE
 REPRESENTATION MATTER IS RESOLVED.
 
    (B) IN ANY LIKE OR RELATED MATTER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AMENDED:
 
    (A) AFTER A REORGANIZATION AND DURING THE PENDENCY OF A
 REPRESENTATION MATTER, MAINTAIN RECOGNITION OF ANY EXCLUSIVE
 REPRESENTATIVE OF ITS EMPLOYEES, AND ADHERE TO THE TERMS OF ANY PRIOR
 AGREEMENT, TO THE MAXIMUM EXTENT POSSIBLE, UNTIL THE REPRESENTATION
 MATTER IS RESOLVED.
 
    (B) IF REQUESTED, PROCESS PURSUANT TO THE INTERNATIONAL ASSOCIATION
 OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, LOCAL 2581 AGREEMENT THOSE
 GRIEVANCES REJECTED DURING THE PENDENCY OF THE REPRESENTATION CASE.
 
    (C) POST AT ALL FACILITIES AND INSTALLATIONS OF THE U.S. DEPARTMENT
 OF THE NAVY, NAVAL AIR ENGINEERING CENTER, LAKEHURST, NEW JERSEY, COPIES
 OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
 AUTHORITY.  UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
 COMMANDING OFFICER OF THE U.S. DEPARTMENT OF THE NAVY, NAVAL AIR
 ENGINEERING CENTER, LAKEHURST, NEW JERSEY, AND SHALL BE POSTED AND
 MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
 PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
 EMPLOYEES ARE CUSTOMARILY POSTED.  THE COMMANDING OFFICER SHALL TAKE
 REASONABLE STEPS TO INSURE 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.
 
    IT IS FURTHER ORDERED THAT THE OBJECTION TO THE RERUN ELECTION IN
 CASE NO. 32-05035(RA) BE, AND IT HEREBY IS, OVERRULED, AND THE CASE BE
 RETURNED TO THE APPROPRIATE REGIONAL DIRECTOR FOR FINAL ACTION
 CONSISTENT WITH THIS DECISION.
 
    ISSUED, WASHINGTON, D.C., JULY 3, 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 ACCORD APPROPRIATE RECOGNITION TO A LAWFULLY
 DESIGNATED EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES AFTER A
 REORGANIZATION AND DURING THE PENDENCY OF A REPRESENTATION MATTER, OR
 REFUSE TO ADHERE TO THE TERMS OF OUR NEGOTIATED AGREEMENT WITH THE
 EXCLUSIVE REPRESENTATIVE, TO THE MAXIMUM EXTENT POSSIBLE, UNTIL THE
 REPRESENTATIVE MATTER IS RESOLVED.
 
    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, IF REQUESTED, PROCESS PURSUANT TO THE INTERNATIONAL
 ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, LOCAL 2581
 AGREEMENT THOSE GRIEVANCES REJECTED DURING THE PENDENCY OF THE
 REPRESENTATION CASE.
 
    WE WILL, IF REQUESTED BY THE CURRENT EXCLUSIVE REPRESENTATIVE,
 REINSTATE THE GRIEVANCES WHICH WERE UNLAWFULLY REJECTED BY THE NAVAL AIR
 ENGINEERING CENTER IN CASE NO. 32-05681(CA) AFTER SEPTEMBER 22, 1978,
 AND PROCESS SUCH GRIEVANCES PURSUANT TO THE TERMS OF THE NEGOTIATED
 AGREEMENT IN EFFECT AT THE TIME OF THE REJECTION.
 
                           (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, FEDERAL LABOR RELATIONS AUTHORITY WHOSE ADDRESS IS:
 ROOM 241, 26 FEDERAL PLAZA, NEW YORK, NEW YORK 10007, AND WHOSE
 TELEPHONE NUMBER IS:  (212) 264-4934.
 
    JOSEPH DALLAS
 
    SENIOR LABOR RELATIONS ADVISOR
 
    NAVAL CIVILIAN PERSONNEL COMMAND
 
    NORTHERN FIELD DIVISION, NAVY BASE
 
    PHILADELPHIA, PA 19112
 
                       FOR THE PETITIONER/RESPONDENT
 
    PETER PETRONE
 
    SPECIAL REPRESENTATIVE
 
    INTERNATIONAL ASSOCIATION OF MACHINISTS
 
    AND AEROSPACE WORKERS
 
    35 GENESEE LANE
 
    WILLINGBORO, NEW JERSEY 08046
 
                            FOR THE COMPLAINANT
 
    BRUCE HEPPEN, ESQUIRE
 
    1016 16TH STREET, N.W.
 
    WASHINGTON, D.C.  20036
 
                       FOR THE INTERVENOR, NATIONAL
 
                      FEDERATION OF FEDERAL EMPLOYEES
 
    BEFORE:  FRANCIS E. DOWD
 
                         ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
                           PRELIMINARY STATEMENT
 
    THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED
 (HEREINAFTER REFERRED TO AS THE ORDER).  ON JUNE 5, 1979, MR. RONALD T.
 SMITH, DIRECTOR OF THE NEW YORK REGION OF THE FEDERAL LABOR RELATIONS
 AUTHORITY ISSUED A NOTICE OF HEARING IN WHICH HE CONSOLIDATED FOR
 PURPOSE OF HEARING AND DECISION AN UNFAIR LABOR PRACTICE COMPLAINT
 ALLEGING A VIOLATION OF SECTION 19(A(1) AND (5) OF THE ORDER AND AN
 OBJECTION TO A RUNOFF ELECTION ENCOMPASSING THE SAME FACTS WHICH GAVE
 RISE TO THE COMPLAINT.
 
    ESSENTIALLY THE QUESTIONS TO BE RESOLVED ARE WHETHER, IN THE
 CIRCUMSTANCES OF THIS CASE, THE RESPONDENT'S UNILATERAL TERMINATION OF
 AN UNEXPIRED COLLECTIVE BARGAINING AGREEMENT AND ITS REFUSAL TO PROCESS
 GRIEVANCES THEREUNDER CONSTITUTES AN UNFAIR LABOR PRACTICE, AND WHETHER
 SUCH CONDUCT INTERFERED WITH THE RUNOFF ELECTION SO AS TO WARRANT
 SETTING THE ELECTION RESULTS ASIDE.
 
    AT THE HEARING ON OCTOBER 23, 1979 IN LAKEHURST, NEW JERSEY, THE
 RESPONDENT AND COMPLAINANT WERE BOTH REPRESENTED.  THE NATIONAL
 FEDERATION OF FEDERAL EMPLOYEES (HEREINAFTER REFERRED TO AS NFFE), AN
 INTERVENOR IN CASE NO. 32-05035(RA) AND WINNER OF THE RUNOFF ELECTION,
 WAS ALSO REPRESENTED.
 
    AT THE HEARING, ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
 HEARD, ADDUCE EVIDENCE, EXAMINE AND CROSS-EXAMINE WITNESSES, AND ARGUE
 ORALLY.  THE RESPONDENT ARGUED ORALLY BUT DID NOT FILE A BRIEF.  THE
 COMPLAINANT AND NFFE FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
 STIPULATIONS OF THE PARTIES, FROM MY OBSERVATION OF THE WITNESSES AND
 THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE PRESENTED AT
 THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS, AND
 RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    1.  ON AUGUST 23, 1978, THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS ISSUED A DECISION, ORDER, AND DIRECTION OF
 ELECTION IN CASE NO. 32-05035(RA).  THAT DECISION (A/SLMR NO. 1104)
 CONTAINS CERTAIN BACKGROUND INFORMATION, AND FINDINGS AND CONCLUSIONS
 WHICH DESERVE MENTION AT THIS POINT.
 
    A.  THE RA PETITION SOUGHT A DETERMINATION WITH RESPECT TO THE EFFECT
 OF A 1977 REORGANIZATION ON THE CONTINUED APPROPRIATENESS OF SIX OUT OF
 EIGHT EXCLUSIVELY RECOGNIZED UNITS REPRESENTED BY SIX UNIONS.  NOT AT
 ISSUE WAS THE APPROPRIATENESS OF A UNIT OF PROFESSIONAL EMPLOYEES AND A
 UNIT OF FIREFIGHTERS.
 
    B.  THE ASSISTANT SECRETARY FOUND, CONTRARY TO THE ACTIVITY, THAT TWO
 OF THE SIX UNITS IN DISPUTE MAINTAINED THEIR SEPARATE IDENTITY AND WERE
 NOT MATERIALLY AFFECTED BY THE REORGANIZATION.  THE PETITION WAS
 DISMISSED AS TO THOSE TWO UNITS.  WITH RESPECT TO THE REMAINING FOUR
 UNITS, HOWEVER, THE ASSISTANT SECRETARY CONCLUDED THAT THE EMPLOYEES
 SHARED A COMMON MISSION, COMMON OVERALL SUPERVISION ENGAGED IN A HIGHLY
 ORGANIZED AND INTEGRATED WORK FUNCTION, AND ENJOYED COMMON PERSONNEL
 AND
 LABOR RELATIONS POLICIES AND PRACTICES.  ACCORDINGLY, HE FOUND THEY
 CONSTITUTED AN APPROPRIATE RESIDUAL UNIT OF ALL UNREPRESENTED EMPLOYEES
 AND DIRECTED AN ELECTION.  THE PERTINENT FINDINGS OF THE ASSISTANT
 SECRETARY WHICH FORMED THE BASIS FOR HIS FINDINGS AND CONCLUSIONS ARE
 QUOTED HERE AT LENGTH:
 
    WITH REGARD TO THE IMPACT OF THE REORGANIZATION ON THESE FOUR
 EXCLUSIVELY RECOGNIZED UNITS,
 
    AS NOTED ABOVE, THE EVIDENCE ESTABLISHES THAT THE NAS AND NATSF WERE
 DISESTABLISHED, AND THAT
 
    THE UNIT EMPLOYEES INVOLVED WERE PHYSICALLY AND/OR ADMINISTRATIVELY
 TRANSFERRED TO THE VARIOUS
 
    DIVISIONS WITHIN THE ACTIVITY WHERE THEY WERE COMMINGLED WITH OTHER
 EMPLOYEES OF THE
 
    ACTIVITY.  AS A CONSEQUENCE, EMPLOYEES OF EACH OF THE THREE FORMER
 COMMANDS NOW WORK ALONG
 
    SIDE EACH OTHER, SHARING COMMON SUPERVISION, GENERALLY SIMILAR JOB
 CLASSIFICATIONS AND DUTIES,
 
    AND ENJOY A HIGH DEGREE OF INTEGRATION OF OPERATIONS WITH OTHER
 EMPLOYEES IN THEIR OWN AND IN
 
    OTHER DIVISIONS.  THE RECORD ALSO REVEALS THAT THE REORGANIZATION OF
 THE ACTIVITY RESULTED IN
 
    SIGNIFICANT CHANGES IN, AND ADDITIONS TO, THE MISSION AND
 ORGANIZATIONAL STRUCTURE OF THE
 
    ACTIVITY.  THUS, THE ACTIVITY'S MISSION WAS ALTERED AND ENLARGED SO
 AS TO ENCOMPASS THE
 
    MISSIONS OF THE FORMER NATF AND NAS, THE ORGANIZATIONAL STRUCTURE OF
 THE ACTIVITY WAS
 
    SIGNIFICANTLY ALTERED, REFINED AND ENLARGED, AND EMPLOYEES OF THE
 ACTIVITY AND THE FORMER NATF
 
    AND NAS WERE THOROUGHLY INTEGRATED THROUGHOUT THE VARIOUS
 ORGANIZATIONAL COMPONENTS OF THE
 
    ACTIVITY.
 
    UNDER THESE CIRCUMSTANCES, I FIND THAT THE JUNE 6, 1977,
 REORGANIZATION, IN EFFECT, CREATED
 
    A NEW ORGANIZATIONAL ENTITY, AND EFFECTED A SUBSTANTIAL CHANGE IN
 BOTH THE SCOPE AND CHARACTER
 
    OF EACH OF THE EXCLUSIVELY RECOGNIZED UNITS REPRESENTED BY THE IAM,
 THE MTC, AND NFFE LOCALS
 
    23 AND 284 WHICH WERE NOT FUNCTIONAL UNITS WITHIN THE MEANING OF
 SECTION 10(B) OF THE
 
    ORDER.  ACCORDINGLY, I FIND THAT THE REORGANIZATION RENDERED THESE
 EXCLUSIVELY RECOGNIZED
 
    UNITS INAPPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER
 THE ORDER.
 
    2.  RESPONDENT AND IAM HAVE A HISTORY OF COLLECTIVE BARGAINING AT THE
 LOCATION CONCERNED HEREIN AND WERE PARTY TO A COLLECTIVE BARGAINING
 AGREEMENT WITH A TERM OF DECEMBER 9, 1976 TO DECEMBER 9, 1978.
 
    3.  ON SEPTEMBER 22, 1978, A MEETING WAS HELD AT BUILDING 200, NAVAL
 AIR ENGINEERING CENTER, LAKEHURST, NEW JERSEY WITH REPRESENTATIVES OF
 RESPONDENT AND IAM IN ATTENDANCE.  KEN ROBINSON, LABOR RELATIONS OFFICER
 FOR RESPONDENT;  AND RICHARD BURKE, PRESIDENT LOCAL 2581 IAM, ROBERT
 FAUNTLEREY AND PETER PETRONE, GRAND LODGE REPRESENTATIVES, IAM, AND JOHN
 MEESE, NATIONAL COORDINATOR, GOVERNMENT EMPLOYEES DEPARTMENT, IAM WERE
 PRESENT.  AT THIS MEETING MR. ROBINSON ADVISED THE IAM THAT, BASED UPON
 THE ASSISTANT SECRETARY'S DECISION IN A/SLMR NO. 1104, THE UNITS OF
 RECOGNITION HAD BEEN TERMINATED AND, THEREFORE, THE CONTRACT BETWEEN
 RESPONDENT AND IAM WAS NO LONGER APPROPRIATE OR VALID.  THE DECISION
 APPLIED TO ALL FOUR BARGAINING UNITS, NOT IAM ALONE.  I CONCLUDE THAT
 THE RESPONDENT, BY SUCH ACTION, WITHDREW RECOGNITION FROM THE IAM AS
 EXCLUSIVE REPRESENTATIVE OF ANY OF ITS EMPLOYEES.
 
    4.  A CHARGE LETTER, DATED SEPTEMBER 22, 1978, WAS TIMELY FILED WITH
 RESPONDENT BY IAM, PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED,
 CHARGING THE IMPROPER TERMINATION OF ITS COLLECTIVE BARGAINING AGREEMENT
 BY RESPONDENT.
 
    5.  SUBSEQUENT TO THE SEPTEMBER 22 ANNOUNCEMENT, IAM FILED CERTAIN
 GRIEVANCES WITH RESPONDENT PURSUANT TO THE GRIEVANCE PROCEDURE OF THE
 COLLECTIVE BARGAINING AGREEMENT.
 
    6.  BY MEMORANDA DATED OCTOBER 12, 1978 AND NOVEMBER 6, 1978, A.R.
 LEDDER, PUBLIC WORKS OFFICER, ACTING AS AN AGENT OF RESPONDENT,
 RESPONDED TO SAID GRIEVANCES BY EXPRESSING RESPONDENT'S POSITION THAT
 THE COLLECTIVE BARGAINING AGREEMENT WAS NO LONGER RECOGNIZED BY
 RESPONDENT, AND THAT IAM WAS NO LONGER THE EXCLUSIVE REPRESENTATIVE OF
 THE UNIT EMPLOYEES BASED UPON THE ASSISTANT SECRETARY'S DECISION IN
 A/SLMR NO. 1104 THAT THE UNITS NO LONGER EXISTED.  THUS, GRIEVANCES
 FILED BY IAM WERE NOT PROCESSED BY THE ACTIVITY UNDER THE CONTRACT.
 HOWEVER, THE AGENCY GRIEVANCE PROCEDURE WAS AVAILABLE.
 
    7.  IAM, ALLEGING THAT IT HAD NOT RECIEVED A TIMELY FILED DECISION
 FROM RESPONDENT ON ITS CHARGE, FILED A TIMELY COMPLAINT ON NOVEMBER 1,
 1978 WITH THE U.S. DEPARTMENT OF LABOR ALLEGING THAT RESPONDENT HAD
 UNILATERALLY TERMINATED ITS COLLECTIVE BARGAINING AGREEMENT ON OR AFTER
 AUGUST 23, 1978, IN VIOLATION OF SECTION 19(A)(1) AND (5) OF THE ORDER.
 THE COMPLAINT WAS FILED ON THE SAME DATE AS THE TALLY OF BALLOTS WAS
 ISSUED WITH RESPECT TO THE FIRST ELECTION, THE RESULTS OF WHICH WERE
 INCONCLUSIVE.
 
    8.  THE REGIONAL DIRECTOR'S REPORT AND FINDINGS ON OBJECTIONS WAS
 STIPULATED BY THE PARTIES AND CONTAINS THE FOLLOWING STATEMENTS:
 
    "ON NOVEMBER 20, 1978, A PRE-ELECTION MEETING WAS HELD TO PREPARE FOR
 A RUNOFF
 
    ELECTION.  DURING THE COURSE OF THIS MEETING, THE IAM ARGUED THAT THE
 ULP SHOULD BE DECIDED
 
    BEFORE PROCEEDING TO THE RUN-OFF ELECTION.  AT THE CONCLUSION OF THE
 MEETING, THE IAM, NFFE,
 
    AND ACTIVITY SIGNED AN ELECTION AGREEMENT WITH THE DATE OF ELECTION
 LEFT UNDECIDED.  IAM
 
    SIGNED THE AGREEMENT UNDER PROTEST.  ON NOVEMBER 21, 1978, THE AREA
 ADMINISTRATOR OF THE
 
    LMSA'S NEWARK AREA OFFICE DECIDED THAT THE RUNOFF ELECTION WOULD BE
 HELD ON DECEMBER 12,
 
    1978.  THIS WAS INCORPORATED IN ELECTION AGREEMENT WHICH WAS
 TRANSMITTED BY LMSA TO ALL OF THE
 
    INTERESTED PARTIES BY LETTER DATED NOVEMBER 22, 1978.
 
    BY TELEGRAM DATED NOVEMBER 17, 1978, THE IAM BY COUNSEL, REQUESTED
 THAT THE ASSISTANT
 
    SECRETARY OVERRULE THE REGIONAL ADMINISTRATOR AND DELAY THE ELECTION
 PENDING THE RESOLUTION OF
 
    THE UNFAIR LABOR PRACTICE COMPLAINT.  IT ARGUED THAT THE CHARGES
 COULD AFFECT THE OUTCOME OF
 
    THE ELECTION.  BY LETTER DATED NOVEMBER 27, 1978, THE ASSISTANT
 SECRETARY DENIED IAM'S REQUEST
 
    STATING THAT THE UNFAIR LABOR PRACTICE DID NOT BLOCK THE SCHEDULED
 RUNOFF AND THAT THERE WAS
 
    NO PROVISION IN THE ASSISTANT SECRETARY'S REGULATIONS FOR OVERTURNING
 THE REGIONAL
 
    ADMINISTRATOR'S DECISION ON SUCH A MATTER."
 
    9.  THERE WERE 1097 ELIGIBLE VOTERS IN THE RUNOFF ELECTION.  THE
 TALLY OF BALLOTS SHOWS THAT 330 VOTES WERE CAST FOR NFFE AND 235 VOTES
 FOR IAM.  TWO CHALLENGED BALLOTS WERE NOT SUFFICIENT TO AFFECT THE
 RESULTS OF THE ELECTION.  ALTOGETHER 567 VALID VOTES WERE COUNTED PLUS
 CHALLENGED BALLOTS.
 
    10.  TIMELY OBJECTIONS TO CONDUCT AFFECTING THE RESULTS OF THE
 ELECTION WERE FILED ON DECEMBER 18, 1978 BY IAM ALLEGING, INTER ALIA,
 THAT RESPONDENT'S ALLEGED TERMINATION OF ITS COLLECTIVE BARGAINING
 AGREEMENT, ALSO THE SUBJECT OF ITS COMPLAINT IN CASE NO.  32-05681(CA),
 CONSTITUTED OBJECTIONABLE CONDUCT.
 
    11.  FOLLOWING AN INVESTIGATION OF SAID OBJECTIONS, PURSUANT TO THE
 TRANSITION RULES AND REGULATIONS OF THE FEDERAL LABOR RELATIONS
 AUTHORITY, THE REGIONAL DIRECTOR FOR THE NEW YORK REGION ISSUED A REPORT
 AND FINDINGS ON OBJECTIONS ON JUNE 5, 1979 WHICH WAS DULY SERVED ON ALL
 PARTIES TO THIS PROCEEDING.  THE REGIONAL DIRECTOR CONCLUDED THAT IAM'S
 OBJECTION NO. 2, THE ALLEGATION THAT RESPONDENT IMPROPERLY TERMINATED
 THE COLLECTIVE BARGAINING AGREEMENT, RAISED A RELEVANT ISSUE OF FACT
 WHICH MAY HAVE AFFECTED THE RESULTS OF THE RUNOFF ELECTION.  THE
 REGIONAL DIRECTOR ALSO CONCLUDED THAT THE REMAINING OBJECTIONS WERE
 WITHOUT MERIT AND WERE OVERRULED.  NO REQUEST FOR REVIEW OF THE REGIONAL
 DIRECTOR'S REPORT HAS BEEN FILED BY ANY PARTY AND THOSE OBJECTIONS WHICH
 WERE OVERRULED ARE NOT, THEREFORE, A PART OF THIS PROCEEDING.
 
    12.  AS PREVIOUSLY NOTED, ON JUNE 5, 1979 THE REGIONAL DIRECTOR
 ISSUED A CONSOLIDATED NOTICE OF HEARING ON OBJECTIONS AND COMPLAINT
 ALLEGING VIOLATIONS OF SECTION 19 OF EXECUTIVE ORDER 11491, AS AMENDED,
 CONSOLIDATING CASES NOS. 32-05681(CA) AND 32-05035(RA) FOR HEARING.
 
    13.  ACTIVITY'S CONDUCT DURING PENDENCY OF RA PETITION AND PRIOR TO
 ASSISTANT SECRETARY'S DECISION.  JOINT EXHIBIT NO. 4 IS A MEMORANDUM
 DATED MARCH 23, 1978 FROM THE COMMANDING OFFICER AND ENTITLED "LABOR
 RELATIONS POLICY AT NAEC, PENDING DEPARTMENT OF LABOR DECISION." THIS
 DOCUMENT NOTES THAT THE PENDING RA PETITION IS BASED UPON A "GOOD FAITH
 DOUBT AS TO WHAT UNION OR UNIONS REPRESENT VARIOUS EMPLOYEES AT NAEC" AS
 A RESULT OF THE PHASE II COMMAND CONSOLIDATION AT LAKEHURST.  IN
 PERTINENT PART, THIS DOCUMENT STATES AS FOLLOWS:
 
    FOR THE NAEC MANAGEMENT TO BE CONSISTENT IN HANDLING FURTHER
 REPRESENTATION QUESTIONS
 
    RAISED BY THESE UNIONS, THE FOLLOWING POLICY WILL APPLY.  . . .  THE
 EMPLOYER WILL, TO THE
 
    EXTENT POSSIBLE, HONOR THE RELATIONSHIPS WITH THE ORGANIZATIONS WHICH
 HAD EXCLUSIVE
 
    RECOGNITION FROM THE THREE COMMANDS IN EXISTENCE PRIOR TO THE PHASE
 II OF COMMAND
 
    CONSOLIDATION OF 5 JUNE 1977.  THE ADHERENCE TO ALL PROVISIONS OF THE
 AGREEMENTS THAT THESE
 
    ORGANIZATIONS HAVE ENTERED INTO WILL BE EXTREMELY DIFFICULT.  IF
 FAIRNESS IS TO PREVAIL, WHILE
 
    THE PARTIES ARE AWAITING A UNIT DETERMINATION DECISION FROM THE
 DEPARTMENT OF LABOR, THE
 
    FOLLOWING PRINCIPLES SHOULD BE ADHERED TO BY SUPERVISORS AND MANAGERS
 DURING THIS PERIOD:
 
    (A).  THE EMPLOYER WILL TAKE EACH LABOR MANAGEMENT SITUATION AND
 CONSIDER IT ON A CASE BY
 
    CASE BASIS TO DETERMINE IF ANY CONFLICT EXISTS IN UNIT DETERMINATION.
 
    B.  THE EMPLOYER WILL TO THE BEST OF OUR ABILITY HONOR CONTRACT
 PROVISIONS WHERE IT CAN
 
    DETERMINE NO CONFLICT OF INTEREST BETWEEN OR AMONG TWO OR MORE LABOR
 ORGANIZATIONS.
 
    C.  WHENEVER IT IS DETERMINED THAT THE INTEREST OF MORE THAN ONE
 UNION IS INVOLVED, THE
 
    EMPLOYER WILL CONSULT WITH ALL EXCLUSIVELY RECOGNIZED UNIONS PRIOR TO
 FORMULATING ITS POSITION
 
    CONCERNING THE ISSUE OR ISSUES IN CONFLICT.
 
    D.  SUPERVISORS AND MANAGERS SHOULD CONTINUE TO RESOLVE PROBLEMS AND
 GRIEVANCES AT THE
 
    LOWEST LEVEL POSSIBLE.  WHENEVER THERE IS DOUBT IN A
 MANAGER'S/SUPERVISOR'S MIND AS TO WHETHER
 
    A CONFLICT EXISTS BETWEEN AND/OR AMONG TWO OR MORE LABOR
 ORGANIZATIONS, THE PROBLEM OR
 
    GRIEVANCE WILL BE REFERRED TO THE LABOR RELATIONS OFFICE, CIVILIAN
 PERSONNEL DEPARTMENT (CODE
 
    123), FOR CONSULTATION AS PROVIDED IN 3.C ABOVE, PRIOR TO TAKING ANY
 ACTION IN THE ISSUE.
 
    E.  IN DETERMINING WHETHER A CONFLICT EXISTS, SUPERVISORS AND
 MANAGERS SHOULD USE THE UNIT
 
    DEFINITIONS FROM EXISTING AGREEMENTS AS A GUIDE.
 
    14.  COMMUNICATION TO EMPLOYEES OF THE ACTIVITY'S REFUSAL TO PROCESS
 GRIEVANCES. THREE UNION PRESIDENTS TESTIFIED WITH RESPECT TO THE
 REACTION OF THEIR RESPECTIVE MEMBERSHIPS TO THE REFUSAL OF THE ACTIVITY
 TO PERMIT USE OF THE NEGOTIATED GRIEVANCE PROCEDURES.
 
    A.  RICHARD W. BURKE, PRESIDENT OF IAM LOCAL 2581 TESTIFIED THAT HE
 FILED TWO GRIEVANCES ON OCTOBER 11 AND NOVEMBER 2, 1978 /2/ , THAT
 RESPONDENT REFUSED TO PROCESS THEM, THAT THESE FACTS WERE COMMUNICATED
 TO IAM MEMBERS WHO WERE "TICKED OFF" WHEN THEY HEARD ABOUT IT BECAUSE IT
 MEANT TAXATION WITHOUT REPRESENTATION.  BURKE TESTIFIED THAT "PROBABLY
 ALL" HIS MEMBERS HEARD ABOUT THIS AND THAT SUPPORT FOR HIS LOCAL
 "DWINDLED." BURKE'S OBVIOUSLY SELF-SERVING TESTIMONY STANDS
 UNCONTRADICTED BUT ALSO UNCORROBORATED.
 
    B.  ALBERT TART, PRESIDENT OF NFFE LOCAL 284 TESTIFIED THAT HE WAS
 STILL USING THE GRIEVANCE PROCEDURE OF AN EXPIRED CONTRACT /3/ UNTIL THE
 SEPTEMBER 22 ANNOUNCEMENT BY THE ACTIVITY.  THEREAFTER, HE UTILIZED THE
 AGENCY GRIEVANCE PROCEDURE AND HIS MEMBERSHIP, LIKE THAT OF IAM, WAS
 UNHAPPY BECAUSE THEY DID NOT LIKE THE AGENCY PROCEDURE AND WANTED TO BE
 REPRESENTED BY THEIR UNION.
 
    C.  CHARLES FOX, PRESIDENT OF NFFE LOCAL 23 TESTIFIED THAT HIS
 MEMBERSHIP WAS INFORMED THAT THE UNION COULD NOT REPRESENT THEM THROUGH
 THE NEGOTIATED GRIEVANCE PROCEDURE AND THAT THE MEMBERS WERE UNHAPPY TO
 BE PAYING DUES AND NOT RECEIVING ANY REPRESENTATION.
 
    D.  CHARLES FOX CREDIBLY TESTIFIED THAT THE INABILITY OF THE IAM TO
 FILE GRIEVANCES WAS NOT AN ISSUE IN THE COMPAIGN.  ON THE CONTRARY, ONE
 OF THE IAM FLYERS DURING THE COMPAIGN PLACED SUBSTANTIAL EMPHASIS ON THE
 FACT THAT IAM FILED A LARGE NUMBER OF GRIEVANCES, THUS ATTEMPTING TO
 DEMONSTRATE THAT THEY WERE A MILITANT ORGANIZATION.
 
    E.  ALTHOUGH IAM PRESIDENT BURKE TESTIFIED THAT SOME MEMBERS RENEWED
 THEIR DUES AUTHORIZATIONS HE STATED THAT HE DID NOT KNOW WHEN THIS
 OCCURRED (TR. 36, 37.) THEREFORE, I ACCORD NO WEIGHT TO THIS VAGUE
 TESTIMONY.
 
    F.  I ALSO CONCLUDE THAT THE EVIDENCE IS INSUFFICIENT TO ESTABLISH
 THAT BARGAINING UNIT EMPLOYEES OTHER THAN THE UNION MEMBERS OF IAM OR
 NFFE REFERRED TO ABOVE HAD ANY KNOWLEDGE ABOUT THE INABILITY OF THE IAM
 OR NFFE TO PROCESS GRIEVANCES OR THE FACT THAT THE ACTIVITY HAD
 UNILATERALLY TERMINATED THE IAM AGREEMENT.
 
                        CONTENTIONS OF THE PARTIES
 
    THE COMPLAINANT CONTENDS THAT RESPONDENT VIOLATED SECTION 19(A)(1)
 AND (5) OF THE ORDER BY "REFUSING TO ABIDE BY THE NEGOTIATED AGREEMENT
 AND THE FURTHER REFUSAL TO PROCESS GRIEVANCES THEREUNDER." IT IS ALSO
 ASSERTED THAT THE ACTIVITY SHOULD NOT HAVE WITHDRAWN ITS EXCLUSIVE
 RECOGNITION OF THE IAM.  THE ELECTION SHOULD BE SET ASIDE, IT CONTENDS
 BECAUSE (1) THE ACTIVITY'S REFUSAL TO PROCESS GRIEVANCES, COUPLED WITH
 (2) THE DEPARTMENT OF LABOR'S REFUSAL TO ISSUE A COMPLAINT, SHOWED THE
 IAM TO BE A PASSIVE ORGANIZATION HAVING LITTLE CLOUT IN CONTRAST WITH
 ITS PRIOR REPRESENTATION AS A MILITANT UNION.
 
    NFFE AGREES WITH IAM THAT THE ACTIVITY VIOLATED THE ORDER BY
 TERMINATING THE CONTRACT AT THE TIME THAT IT DID.  NFFE ARGUES THAT WHEN
 A QUESTION CONCERNING REPRESENTATION IS RAISED AN ELECTION ORDERED AS A
 RESULT OF THAT QUESTION, THE DUTY TO HONOR THE EXISTING AGREEMENT
 CONTINUES UNTIL THE ELECTION IS COMPLETED WITH A CERTIFICATION.  NFFE
 FURTHER CONTENDS, HOWEVER, THAT IN THIS PARTICULAR CASE THE VIOLATION
 APPLIED EQUALLY TO IAM AND NFFE AND THEREFORE HAD NO DISCERNIBLE EFFECT
 ON THE OUTCOME OF THE ELECTION.  IN THIS REGARD, NFFE ARGUES THAT IAM
 HAS NOT SUSTAINED ITS BURDEN OF PROVING ALL MATTERS ALLEGED IN ITS
 OBJECTIONS BY A PREPONDERANCE OF THE EVIDENCE.  NFFE ARGUES (1) THAT THE
 UNFAIR LABOR PRACTICE HAD NO EFFECT ON THE ELECTION AND (2) THAT, IN ANY
 EVENT, THE ACTIVITY'S CONDUCT WAS LIKE THE IMPOSITION OF A GENERAL RULE
 (I.E. ALL UNIONS ARE PROHIBITED FROM USING NEGOTIATED GRIEVANCE
 PROCEDURES), WHICH RULE WAS IMPOSED IN A NONDISCRIMINATORY FASHION.
 
    THE RESPONDENT DEFENDS ITS ACTION BY RELYING ON THE ASSISTANT
 SECRETARY'S DECISION ON THE RA PETITION WHICH HELD THAT THE FOUR
 EXISTING UNITS WERE NO LONGER APPROPRIATE FOR EXCLUSIVE RECOGNITION.
 THE RESPONDENT ASSERTS THAT SINCE THE LABOR ORGANIZATION DID NOT HAVE
 EXCLUSIVE RECOGNITION FOR THE NEW UNIT, IT WAS NOT ENTITLED TO NEGOTIATE
 OR TO HAVE A LABOR AGREEMENT.  FURTHER, THE RESPONDENT ARGUES THAT UPON
 TERMINATION OF BARGAINING UNITS BY THE ASSISTANT SECRETARY, THE EMPLOYER
 WOULD BE IN VIOLATION OF THE ORDER IF IT INDEED PERMITTED OR ALLOWED
 FORMER UNIONS OR BARGAINING UNITS IN ANY WAY TO HAVE A CONTINUANCE OF
 ASSISTANCE.  RATHER, THE RESPONDENT POINTS OUT THAT FROM AUGUST 23 UNTIL
 THE RUNOFF ELECTION WAS HELD, ITS POLICY WAS TO TREAT ALL PARTIES ALIKE
 AND NOT TO DISCRIMINATE OR SHOW PREFERENCE TO ONE UNION AT THE EXPENSE
 OF ANOTHER.
 
                     DISCUSSION AND CONCLUSION OF LAW
 
    1.  THE WITHDRAWAL OF RECOGNITION
 
    SECTION 19(A)(5) OF THE ORDER STATES THAT "AGENCY MANAGEMENT SHALL
 NOT REFUSE TO ACCORD APPROPRIATE RECOGNITION TO A LABOR ORGANIZATION
 QUALIFIED FOR SUCH RECOGNITION".  MOREOVER, IT HAS BEEN HELD THAT "SO
 LONG AS THE LABOR ORGANIZATION INVOLVED REMAINS QUALIFIED UNDER
 PROVISIONS OF THE ORDER," IT IS ENTITLED TO CONTINUED RECOGNITION.  /4/
 IN MY OPINION, THE ASSISTANT SECRETARY'S DECISION OF AUGUST 23, 1978
 EXTINGUISHED IAM'S ENTITLEMENT TO CONTINUED RECOGNITION.
 
    IN HIS DECISION, THE ASSISTANT SECRETARY CONCLUDED THAT THE JUNE 6,
 1977 REORGANIZATION (1) CREATED A NEW ORGANIZATIONAL ENTITY AND THUS (2)
 RENDERED IAM'S EXCLUSIVE RECOGNIZED UNIT "INAPPROPRIATE FOR THE PURPOSE
 OF EXCLUSIVE RECOGNITION UNDER THE ORDER." IT IS WELL ESTABLISHED THAT
 SUCH A DETERMINATION MEANS THAT AN AGENCY HAS NO OBLIGATION TO CONTINUE
 TO RECOGNIZE A LABOR ORGANIZATION AS EXCLUSIVE REPRESENTATIVE.  /5/
 ACCORDINGLY, I CONCLUDE THAT RESPONDENT DID NOT VIOLATE SECTIONS
 19(A)(1) AND (5) WHEN, IN RELIANCE ON THE ASSISTANT SECRETARY'S
 DECISION, IT WITHDREW RECOGNITION FROM THE IAM.  /6/
 
    2.  THE UNILATERAL TERMINATION OF THE NEGOTIATED AGREEMENT, INCLUDING
 THE REFUSAL TO PROCESS GRIEVANCES THEREUNDER.
 
    IT HAS BEEN PREVIOUSLY HELD THAT MATTERS RELATED TO AN ALLEGED
 IMPROPER REFUSAL TO ACCORD APPROPRIATE RECOGNITION SUCH AS THE
 TERMINATION OF A NEGOTIATED AGREEMENT (AS IN THIS CASE) AND THE
 REVOCATION OF DUES WITHHOLDING ARE INSEPARABLE FROM THE THEORY OF
 VIOLATION DISCUSSED WITH RESPECT TO A WITHDRAWAL OF RECOGNITION.  /7/
 ACCORDINGLY, SINCE I HAVE FOUND NO VIOLATION OF SECTIONS 19(A)(1) AND
 (5) IN THE AGENCY'S WITHDRAWAL OF RECOGNITION, I ALSO FIND NO VIOLATION
 OF SECTIONS 19(A)(1) AND (5) IN THE UNILATERAL TERMINATION OF THE
 NEGOTIATED AGREEMENT AND THE REFUSAL TO PROCESS GRIEVANCES.
 
    HOWEVER, IN VIEW OF THE ISSUES POSED BY THE REGIONAL DIRECTOR IN HIS
 REPORT ON OBJECTIONS AS WELL AS NFFE'S ARGUMENT THAT RESPONDENT WAS
 OBLIGED TO HONOR THE NEGOTIATED AGREEMENT UNTIL THE ELECTION WAS
 CONDUCTED AND A CERTIFICATION ISSUED, I WILL DISCUSS THIS ISSUE IN THE
 LIGHT OF ANOTHER LINE OF PRECEDENT DECISIONS.  IT HAS BEEN HELD BY THE
 ASSISTANT SECRETARY AS FOLLOWS:
 
    "IN MY VIEW, ABSENT EVIDENCE . . . OF AN OVERRIDING EXIGENCY, WHICH
 WOULD REQUIRE IMMEDIATE
 
    CHANGES IN PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING ITS
 EMPLOYEES' WORKING
 
    CONDITIONS, DURING THE PENDENCY OF AN RA PETITION, THE PETITIONING
 AGENCY HAS AN OBLIGATION TO
 
    REMAIN NEUTRAL AND MAINTAIN THE STATUS QUO WITH RESPECT TO THE
 PERSONNEL POLICIES AND PRACTICE
 
    AND MATTERS AFFECTING WORKING CONDITIONS OF EMPLOYEES WHO ARE COVERED
 BY ITS RA
 
    PETITION." /8/ FURTHER, THE FEDERAL LABOR RELATIONS COUNCIL HAS
 STATED THAT DURING A REORGANIZATION
 
    "EXISTING RECOGNITION AGREEMENTS, AND DUES WITHHOLDING ARRANGEMENTS
 SHOULD BE HONORED TO
 
    THE MAXIMUM EXTENT POSSIBLE CONSISTENT WITH THE RIGHTS OF THE PARTIES
 INVOLVED PENDING FINAL
 
    DETERMINATION ON ISSUES RAISED BY REORGANIZATIONS" /9/
 
    IN THE FOREGOING REPORT WHICH ACCOMPANIED EXECUTIVE ORDER 11838, THE
 COUNCIL DECIDED TO ADOPT A CASE-BY-CASE APPROACH IN DETERMINING THE
 STATUS OF NEGOTIATED AGREEMENTS DURING REORGANIZATIONS.  ONE OF ITS
 REASONS FOR REJECTING THE ADOPTION OF A FIXED SPECIAL POLICY WAS ITS
 CONCERN THAT "THE SPECIAL POLICIES SUGGESTED WOULD NOT APPEAR TO BE
 SUSCEPTIBLE TO EQUITABLE APPLICATION TO ALL SITUATIONS WHERE
 REORGANIZATIONS RESULT IN CHANGES IN THE ASSIGNMENT OF PERSONNEL AND
 AFFECT EXISTING BARGAINING RELATIONSHIPS." /10/
 
    IN APPLYING THESE PRINCIPLES TO THE FACTS OF THIS CASE, I REACH THE
 FOLLOWING CONCLUSIONS:
 
    A.  DURING THE PERIOD COMMENCING WITH THE FILING OF THE RA PETITION
 AND ENDING WITH THE SEPTEMBER 22 MEETING WHICH FOLLOWED THE ASSISTANT
 SECRETARY'S FINAL DETERMINATION /11/ THE RESPONDENT PROPERLY REMAINED
 NEUTRAL AND PROPERLY MAINTAINED THE STATUS QUO.  STATED DIFFERENTLY,
 RESPONDENT HONORED ITS EXISTING RECOGNITION AND AGREEMENTS "TO THE
 MAXIMUM EXTENT POSSIBLE." /12/ DURING THIS PERIOD THE QUESTION OF
 REPRESENTATION PRIMARILY CONCERNED THE ISSUE OF "APPROPRIATE UNIT"
 RESULTING FROM THE REORGANIZATION.
 
    B.  AS A RESULT OF THE ASSISTANT SECRETARY'S DIRECTION OF ELECTION,
 AN ELECTION CAMPAIGN PERIOD COMMENCED DURING WHICH THE ACTIVITY HAD AN
 OBLIGATION TO MAINTAIN STRICT NEUTRALITY AND AVOID DOING ANYTHING WHICH
 WOULD MAKE ITSELF VULNERABLE TO A SECTION 19(A)(3) CHARGE OR UNLAWFUL
 ASSISTANCE OR TO AN ALLEGATION THAT ITS CONDUCT INTERFERED WITH AN
 ELECTION.  /13/
 
    MUCH HAS BEEN WRITTEN IN PRIVATE SECTOR CASES ABOUT AN EMPLOYER'S
 DUTY TO MAINTAIN STRICT NEUTRALITY.  /14/ THE PRESENT CASE PRESENTS AN
 INTERESTING ISSUE AS TO WHETHER STRICT NEUTRALITY CAN BE DEMONSTRATED
 BEST BY (1) MAINTAINING THE STATUS QUO AND CONTINUING TO PROCESS
 GRIEVANCES, OR (2) CHANGING THE STATUS QUO BY REFUSING TO PROCESS
 GRIEVANCES.
 
    IN MY OPINION, THE OBLIGATION TO MAINTAIN STRICT NEUTRALITY IS NOT A
 LAWFUL REASON - IN EVERY FACTUAL SITUATION - FOR AUTOMATICALLY
 TERMINATING OR CEASING TO GIVE EFFECT TO AN EXISTING NEGOTIATED
 AGREEMENT.  THE LAWFULNESS OF SUCH ACTION BY AN ACTIVITY DEPENDS UPON
 THE FACTS OF EACH CASE.  HERE, I CONCLUDE THAT THE ORDER WAS NOT
 VIOLATED BECAUSE THE ACTIVITY ACTED IN A MANNER CONSISTENT WITH THE
 ASSISTANT SECRETARY'S DECISION.  /15/ THUS, THE "FINAL DETERMINATION" OF
 THE ASSISTANT SECRETARY TERMINATED THE ACTIVITY'S BARGAINING OBLIGATION
 WHEN HE FOUND THAT THE REORGANIZATION RENDERED THE EXCLUSIVELY
 RECOGNIZED UNITS INAPPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION.
  ACCORDINGLY, I FIND AND CONCLUDE THAT THE ACTIVITY DID NOT VIOLATE
 SECTION 19(A)(1) AND (5) OF THE ORDER BY TERMINATING THE CONTRACT AND
 REFUSING TO PROCESS GRIEVANCES THEREUNDER.
 
    3.  THE OBJECTION TO THE RUNOFF ELECTION
 
    SECTION 2422.20(H) OF THE APPLICABLE REGULATIONS SPECIFIES THAT "THE
 PARTY FILING THE OBJECTIONS BY A PREPONDERANCE OF THE EVIDENCE." I HAVE
 CAREFULLY CONSIDERED ALL THE EVIDENCE ADDUCED AT THE HEARING AND I
 CONCLUDE THAT THE IAM, OBJECTING PARTY HEREIN, HAS NOT SUSTAINED ITS
 BURDEN OF PROOF.  IN MY OPINION, THERE IS INSUFFICIENT EVIDENCE TO
 ESTABLISH THAT THE ACTIVITY'S CONDUCT - TERMINATION OF THE CONTRACT AND
 REFUSAL TO PROCESS GRIEVANCES - MAY HAVE AFFECTED THE ELECTION RESULTS,
 AND THUS BE THE BASIS FOR SETTING ASIDE SUCH ELECTION.  IN ADDITION, I
 HAVE CONCLUDED THAT THE ACTIVITY'S CONDUCT WAS PROPER AND DID NOT
 CONSTITUTE AN UNFAIR LABOR PRACTICE.  /16/
 
                              RECOMMENDATION
 
    HAVING CONCLUDED THAT THE RESPONDENT DID NOT VIOLATE SECTIONS
 19(A)(1) AND (5) OF THE ORDER, I RECOMMEND THAT THE COMPLAINT BE
 DISMISSED.
 
    HAVING CONCLUDED THAT THE RESPONDENT DID NOT ENGAGE IN CONDUCT WHICH
 MAY HAVE AFFECTED THE RESULTS OF THE RUNOFF ELECTION, I RECOMMEND THAT
 OBJECTION NO. 2 BE OVERRULED AND THAT A CERTIFICATION OF REPRESENTATIVE
 BE ISSUED BY THE REGIONAL DIRECTOR.
 
                              FRANCIS E. DOWD
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JANUARY 10, 1980
 
    WASHINGTON, D.C.
 
                               SERVICE SHEET
 
    CASE NOS. 32-05035 (RA) & 32-05681 (CA)
 
    COPY OF RECOMMENDED DECISION AND ORDER
 
    DATED JANUARY 10, 1980
 
    "RECOMMENDED DECISION AND ORDER" ISSUED BY ADMINISTRATIVE LAW JUDGE
 FRANCIS E. DOWD WAS SENT TO THE FOLLOWING PERSONS BY CERTIFIED MAIL:
 
                                 LINDA LEE
 
    JOSEPH DALLAS
 
    SENIOR LABOR RELATIONS ADVISOR
 
    NAVAL CIVILIAN PERSONNEL COMMAND
 
    NORTHERN FIELD DIVISION, NAVY BASE
 
    PHILADELPHIA, PA 19112
 
    PETER PETRONE
 
    SPECIAL REPRESENTATIVE
 
    INTERNATIONAL ASSOCIATION OF MACHINISTS
 
    AND AEROSPACE WORKERS
 
    35 GENESEE LANE
 
    WILLINGBORO, NEW JERSEY 08046
 
    BRUCE HEPPEN, ESQUIRE
 
    1016 16TH STREET, N.W.
 
    WASHINGTON, D.C. 20036
 
    REGULAR MAIL:
 
    MR. JAMES M. PEIRCE, PRESIDENT
 
    NATIONAL FEDERATION OF FEDERAL EMPLOYEES
 
    1016 16TH STREET, N.W.
 
    WASHINGTON, D.C.  20036
 
    MR. WILLIAM W. WINPISINGER, PRESIDENT
 
    INTERNATIONAL ASSOCIATION OF MACHINISTS
 
    AND AEROSPACE WORKERS, AFL-CIO
 
    1300 CONNECTICUT AVENUE, N.W.
 
    WASHINGTON, D.C.  20036
 
    ASSISTANT DIRECTOR
 
    LABOR-MANAGEMENT RELATIONS
 
    U.S. OFFICE OF PERSONNEL MANAGEMENT
 
    1900 E STREET, N.W.
 
    WASHINGTON, D.C.  20415
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    1900 E STREET, N.W., ROOM 7469
 
    WASHINGTON, D.C.  20424
 
    ONE COPY TO EACH REGIONAL DIRECTOR
 
    OFFICE OF THE GENERAL COUNSEL
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    1900 E STREET, N.W., ROOM 7469
 
    WASHINGTON, .D.C.  20424
 
    /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/ SINCE BOTH GRIEVANCES WERE FILED AFTER THE DATE OF THE CHARGE
 (SEPTEMBER 22, 1978), AND NOTING THAT THE SECOND GRIEVANCE WAS NOT FILED
 UNTIL THE DAY AFTER THE COMPLAINT WAS FILED (NOVEMBER 1, 1978), IT SEEMS
 CLEAR THAT THE CHARGE AND COMPLAINT ARE BASED PRIMARILY ON THE
 UNILATERAL TERMINATION OF THE CONTRACT.
 
    /3/ LOCAL 284'S CONTRACT EXPIRED IN MAY 1978 BUT, ACCORDING TO TART,
 IT WAS BEING "HELD IN ABEYANCE" DURING THE PERIOD OF REORGANIZATION AND
 WAS SUPPOSED "TO BE KEPT IN EFFECT UNTIL THE DEPARTMENT OF LABOR'S
 DECISION ON THE RA PETITION."
 
    /4/ DEFENSE SUPPLY AGENCY, DEFENSE PROPERTY DISPOSAL OFFICE, ABERDEEN
 PROVING GROUND, ABERDEEN, MARYLAND, 4 A/SLMR 163, AT P. 167, 6 A/SLMR
 104, A/SLMR NO. 360.
 
    /5/ DEFENSE LOGISTICS AGENCY, 7 A/SLMR 980, A/SLMR NO. 932, DEFENSE
 CONTRACT AUDIT AGENCY, 6 A/SLMR 251, A/SLMR NO. 657;  U.S. DEPARTMENT OF
 TRANSPORTATION, 5 A/SLMR 92, A/SLMR NO. 482;  IDAHO PANHANDLE NATIONAL
 FORESTS, 4 A/SLMR 351, A/SLMR NO. 394.
 
    /6/ CF. ARMY AND AIR FORCE EXCHANGE SERVICE, SOUTH TEXAS AREA
 EXCHANGE, LACKLAND AIR FORCE BASE, TEXAS, 6 A/SLMR 316, A/SLMR NO. 669;
 UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF THE NAVY, NAVAL AIR
 RESERVE TRAINING UNIT, MEMPHIS, TENNESSEE, 1 A/SLMR 490, A/SLMR NO. 106,
 A CASE WHERE THE UNIT REMAINED APPROPRIATE AFTER THE RECOGNITION, THERE
 WAS NO EVIDENCE OF LOSS OF MAJORITY STATUS, AND THE AGENCY DID NOT FILE
 A REPRESENTATION PETITION.
 
    /7/ IBID.
 
    /8/ DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, YUMA PROJECTS
 OFFICE, YUMA, ARIZONA, 4 A/SLMR 407, A/SLMR NO. 401.
 
    /9/ REPORT AND RECOMMENDATIONS OF THE FEDERAL LABOR RELATIONS COUNCIL
 ON THE AMENDMENT OF EXECUTIVE ORDER 11491, AS AMENDED, FEBRUARY 6, 1975.
 
    /10/ AS PREVIOUSLY NOTED, THE ASSISTANT SECRETARY FOUND THAT "UNIT
 EMPLOYEES INVOLVED WERE PHYSICALLY AND/OR ADMINISTRATIVELY TRANSFERRED
 TO THE VARIOUS DIVISIONS WITHIN THE ACTIVITY WHERE THEY WERE COMMINGLED
 WITH OTHER EMPLOYEES OF THE ACTIVITY." MOREOVER, THE "DISAPPEARANCE" OF
 THE PREVIOUSLY RECOGNIZED UNITS RESULTED IN A TERMINATION OF THE
 EXISTING BARGAINING RELATIONSHIPS.
 
    /11/ APPARENTLY NO APPEAL TO THE COUNCIL WAS FILED AND, THEREFORE,
 THE ASSISTANT SECRETARY'S DECISION WAS INDEED A "FINAL DETERMINATION." I
 MAKE NO FINDING ON WHAT THE SITUATION WOULD HAVE BEEN IF AN APPEAL HAD
 BEEN FILED.
 
    /12/ FOR A DISCUSSION OF THE PHRASE "TO THE MAXIMUM EXTENT POSSIBLE"
 SEE JUDGE WILLIAM DEVANEY'S DECISION IN DEPARTMENT OF ENERGY, CASE NO.
 22-0-034(CA), MAY 1, 1979, PRESENTLY ON APPEAL TO THE AUTHORITY.
 
    /13/ THE OBLIGATION TO MAINTAIN STRICT NEUTRALITY WOULD BE EVEN MORE
 OBVIOUS IF A RIVAL "OUTSIDE" UNION WERE SEEKING TO REPRESENT T