Department of Treasury, Internal Revenue Service, Cleveland, Ohio (Respondent) and National Treasury Employees Union and National Treasury Employees Union Chapter 44 (Labor Organization) 



[ v03 p656 ]
03:0656(106)CA
The decision of the Authority follows:


 3 FLRA No. 106
 
 DEPARTMENT OF TREASURY
 INTERNAL REVENUE SERVICE
 CLEVELAND, OHIO
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NATIONAL TREASURY EMPLOYEES
 UNION CHAPTER 44
 Labor Organization
 
                                            Case No. 5-CA-165
 
                            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 PRACTICE ALLEGED IN THE COMPLAINT AND
 RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
 THEREAFTER, THE GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS AUTHORITY
 FILED EXCEPTIONS AND A SUPPORTING BRIEF WITH RESPECT TO THE
 ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER, AND THE
 RESPONDENT FILED AN ANSWERING BRIEF THERETO.
 
    PURSUANT TO SEC. 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS (5
 C.F.R. 2423.29(1980)) AND SEC. 7118 OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135), 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, INCLUDING THE GENERAL COUNSEL'S EXCEPTIONS AND SUPPORTING
 BRIEF AND THE RESPONDENT'S ANSWERING BRIEF, THE AUTHORITY HEREBY ADOPTS
 THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS.
 
    THE ADMINISTRATIVE LAW JUDGE DETERMINED THAT THE EVIDENCE ESTABLISHED
 THAT THE PAST PRACTICE OF ALLOWING THE UNION OFFICIALS USE OF
 RESPONDENT'S TYPEWRITERS AND PHOTOCOPYING EQUIPMENT HAD BEEN EFFECTIVELY
 PROHIBITED BY THE RESPONDENT AT THE TOLEDO POST OF DUTY.  IN SO FINDING,
 THE ADMINISTRATIVE LAW JUDGE RELIED UPON SEVERAL INCIDENTS WHICH
 OCCURRED AT AND INVOLVED INDIVIDUALS FROM BOTH THE TOLEDO POST OF DUTY
 AND THE CLEVELAND DISTRICT OFFICE.  IN ITS EXCEPTIONS, THE GENERAL
 COUNSEL CONTENDS THAT THE ADMINISTRATIVE LAW JUDGE ERRED IN RELYING UPON
 ANY INCIDENTS WHICH OCCURRED OUTSIDE THE TOLEDO POST OF DUTY.
 
    THE AUTHORITY AGREES THAT THE RECORD SUPPORTS THE ADMINISTRATIVE LAW
 JUDGE'S FINDINGS CONCERNING THE PAST PRACTICE, BUT RELIES ONLY ON THE
 INCIDENTS WHICH OCCURRED AT OR INVOLVED INDIVIDUALS IN THE TOLEDO POST
 OF DUTY.
 
                                   ORDER
 
    PURSUANT TO 2423.29 OF THE FEDERAL LABOR RELATIONS AUTHORITY'S RULES
 AND REGULATIONS AND SEC. 7118 OF THE STATUTE, THE AUTHORITY THEREBY
 ORDERS THAT THE COMPLAINT IN CASE NO. 5-CA-165 BE, AND IT HEREBY IS,
 DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JULY 17, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
 AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
 PARTIES LISTED:
 
    ARLANDER KEYS, ESQUIRE
 
    REGIONAL ATTORNEY
 
    OFFICE OF THE GENERAL COUNSEL
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    REGION V, 219 S. DEARBORN STREET
 
    ROOM 1638
 
    CHICAGO, ILLINOIS 60604
 
                          FOR THE GENERAL COUNSEL
 
    WILLIAM T. LYONS, ESQUIRE
 
    JAMES E. ROGERS, ESQUIRE
 
    OFFICE OF THE REGIONAL COUNSEL
 
    INTERNAL REVENUE SERVICE
 
    CENTRAL REGION
 
    P.O. BOX 2059
 
    CINCINNATI, OHIO 45201
 
                            FOR THE RESPONDENT
 
    JAMES R. LAWRENCE, ESQUIRE
 
    NATIONAL FIELD REPRESENTATIVE
 
    NATIONAL TREASURY EMPLOYEES UNION
 
    1730 K STREET, N.W.
 
    WASHINGTON, D.C.  20006
 
                          FOR THE CHARGING PARTY
 
    MR. LEROY BRADWISH
 
    REGIONAL DIRECTOR
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    ROOM 1638, DIRKSEN FEDERAL BUILDING
 
    219 SOUTH DEARBORN STREET
 
    CHICAGO, ILLINOIS 60604
 
    BRENDA M. ROBINSON, ESQUIRE
 
    SANDRA LEBOLD, ESQUIRE
 
    OFFICE OF THE GENERAL COUNSEL
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    REGION V, 219 S. DEARBORN STREET
 
    ROOM 1638
 
    CHICAGO, ILLINOIS 60604
 
                          FOR THE GENERAL COUNSEL
 
    WILLIAM T. LYONS, ESQUIRE
 
    JAMES E. ROGERS, ESQUIRE
 
    OFFICE OF THE REGIONAL COUNSEL
 
    INTERNAL REVENUE SERVICE
 
    CENTRAL REGION
 
    P.O. BOX 2059
 
    CINCINNATI, OHIO 45201
 
                            FOR THE RESPONDENT
 
    JAMES R. LAWRENCE, ESQUIRE
 
    NATIONAL FIELD REPRESENTATIVE
 
    NATIONAL TREASURY EMPLOYEES UNION
 
    1730 K STREET, N.W.
 
    WASHINGTON, D.C.  20006
 
                          FOR THE CHARGING PARTY
 
    BEFORE:  LOUIS SCALZO
 
                         ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THIS CASE AROSE AS AN UNFAIR LABOR PRACTICE PROCEEDING UNDER THE
 PROVISIONS OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 92
 STAT 1191, 5 U.S.C.  7101 ET SEQ., AND THE RULES AND REGULATIONS ISSUED
 THEREUNDER.
 
    ON SEPTEMBER 12, 1979, A COMPLAINT WAS FILED BY THE REGIONAL
 DIRECTOR, REGION V, FEDERAL LABOR RELATIONS AUTHORITY, CHICAGO,
 ILLINOIS, AGAINST THE DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
 SERVICE, CLEVELAND, OHIO (HEREINAFTER CALLED RESPONDENT OR MANAGEMENT).
 THE COMPLAINT ALLEGED THAT ON OR ABOUT MARCH 8 AND 16, 1979, THE
 RESPONDENT VIOLATED 5 U.S.C.  7116(A)(1) AND (5) BY UNILATERALLY
 CHANGING EXISTING CONDITIONS OF EMPLOYMENT AT THE RESPONDENT'S TOLEDO,
 OHIO POST OF DUTY /1/ WITHOUT FURNISHING THE NATIONAL TREASURY EMPLOYEES
 UNION AND NATIONAL TREASURY EMPLOYEES UNION CHAPTER 44 (UNION), NOTICE
 AND/OR OPPORTUNITY TO BARGAIN CONCERNING SUCH CHANGES.  /2/ IT WAS
 ALLEGED THAT THE RESPONDENT WITHDREW THE UNION'S PERMISSION TO USE
 CERTAIN OFFICE EQUIPMENT AT THE TOLEDO POST OF DUTY, AND THAT SUCH
 PERMISSION HAD BEEN EXTENDED TO THE UNION AT THE FACILITY OVER A PERIOD
 OF MANY YEARS PRIOR TO SUCH WITHDRAWAL.
 
    THE SPECIFIC UNION ACTIVITY PROHIBITED ON MARCH 8, AND 16, 1979,
 INVOLVED THE UTILIZATION OF A TYPEWRITER AND OTHER OFFICE EQUIPMENT NOT
 SPECIFICALLY IDENTIFIED IN THE COLLECTIVE BARGAINING AGREEMENT AS BEING
 AUTHORIZED FOR UNION USE.  /3/ IT IS THIS BLANKET PROHIBITION WHICH THE
 UNFAIR LABOR PRACTICE COMPLAINT CONDEMNS BASED UPON AN ALLEGED
 PREVIOUSLY ESTABLISHED POLICY OF ALLOWING THE UNION TO UTILIZE SUCH
 TYPEWRITERS AND OTHER OFFICE EQUIPMENT AT TOLEDO POST OF DUTY.
 
    THE RESPONDENT DENIES THE ALLEGATIONS AND ASSERTS THAT AN OBLIGATION
 TO BARGAIN DID NOT ARISE BECAUSE THE RESPONDENT DID NOT EFFECTUATE A
 UNILATERAL CHANGE IN THE TERMS AND CONDITIONS OF EMPLOYMENT;  THAT THE
 GENERAL COUNSEL HAS FAILED TO ESTABLISH BY A PREPONDERANCE OF THE
 EVIDENCE THAT THE RESPONDENT DID IN FACT MAKE A UNILATERAL CHANGE IN THE
 TERMS AND CONDITIONS OF EMPLOYMENT;  THAT THE UNION WAIVED ANY RIGHTS
 THAT IT MIGHT HAVE HAD TO NEGOTIATE CONCERNING THE CHANGE;  THAT IF A
 UNILATERAL CHANGE DID OCCUR, AN UNFAIR LABOR PRACTICE CHARGE BASED ON
 SUCH CHANGE WOULD BE BARRED BY THE SIX-MONTH PERIOD OF LIMITATION SET
 OUT IN SECTION 7118(A)(4)(A) OF TITLE 5 UNITED STATES CODE;  AND THAT IF
 AN OBLIGATION TO BARGAIN EXISTED, SUCH OBLIGATION, UNDER THE TERMS OF
 THE COLLECTIVE BARGAINING AGREEMENT, WOULD HAVE BEEN OWED TO THE
 NATIONAL LEVEL OF THE NATIONAL TREASURY EMPLOYEES UNION OR TO THE
 NATIONAL TREASURY EMPLOYEES UNION JOINT COUNCIL OF CHAPTERS IN THE
 CLEVELAND DISTRICT, RATHER THAN TO CHAPTER 44 AS A SEPARATE ENTITY.  /4/
 
    A HEARING WAS HELD BEFORE THE UNDERSIGNED IN TOLEDO, OHIO.  ALL
 PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE
 HEARD, ADDUCE RELEVANT EVIDENCE, AND EXAMINE AND CROSS-EXAMINE
 WITNESSES.  POST-HEARING BRIEFS WERE RECEIVED FROM COUNSEL FOR THE
 GENERAL COUNSEL, FEDERAL LABOR RELATIONS AUTHORITY, AND THE RESPONDENT.
 THESE HAVE BEEN DULY CONSIDERED.  /5/ BASED UPON THE ENTIRE RECORD
 HEREIN, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR,
 THE EXHIBITS AND OTHER RELEVANT EVIDENCE ADDUCED AT THE HEARING, AND THE
 BRIEFS, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS AND
 RECOMMENDATION.
 
                             FINDINGS OF FACT
 
    AT ALL TIMES HEREIN MATERIAL THE PARTIES WERE GOVERNED BY A
 MULTI-DISTRICT AGREEMENT ENTERED INTO BY THE INTERNAL REVENUE SERVICE
 AND THE NATIONAL TREASURY EMPLOYEES UNION (RESPONDENT EXHIBIT 3).
 ARTICLE 14 OF THIS AGREEMENT AND SIMILAR PROVISIONS IN TWO EARLIER
 COLLECTIVE BARGAINING AGREEMENTS (RESPONDENT EXHIBITS 1 AND 2), MADE
 PROVISION FOR THE RESPONDENT TO SUPPLY CERTAIN FACILITIES AND SERVICES
 TO THE UNION.  THE UNION'S USE OF TYPEWRITERS WAS NOT PROVIDED FOR IN
 THE CURRENT COLLECTIVE BARGAINING AGREEMENT, OR THE TWO EARLIER
 AGREEMENTS.  /6/
 
    THE PATTERN OF EVENTS LEADING TO THE FILING OF THIS UNFAIR LABOR
 PRACTICE CHARGE COMMENCED ON MARCH 8, 1979, WHEN WILLIAM GILLESPIE,
 PRESIDENT OF CHAPTER 44, ASKED ROSEMARY HARRISON, THE CHAPTER 44
 SECRETARY, TO TYPE A LETTER FOR THE UNION DURING WORKING HOURS ON A
 GOVERNMENT OWNED TYPEWRITER.  WILLIAM GILLESPIE WAS A REVENUE OFFICER
 ASSIGNED TO THE TOLEDO POST OF DUTY. THE LETTER IN QUESTION DEALT WITH
 THE SUBJECT OF CONTRIBUTIONS TO A TREASURY EMPLOYEES POLITICAL ACTION
 COMMITTEE, AND WAS ADDRESSED TO THE PRESIDENT OF THE NATIONAL TREASURY
 EMPLOYEES UNION.  ROSEMARY HARRISON WAS THEN WORKING AS A CLERK
 STENOGRAPHER FOR ONE OF TWO GROUPS OF REVENUE OFFICERS EMPLOYED BY THE
 COLLECTION DIVISION OF THE INTERNAL REVENUE SERVICE AT THE TOLEDO
 LOCATION.
 
    AT ABOUT 3:30 P.M. ON MARCH 8TH, RONALD ZIELINSKI, A SUPERVISORY
 REVENUE OFFICER AND GROUP MANAGER IN CHARGE OF THE GROUP TO WHICH
 HARRISON AND GILLESPIE WERE ASSIGNED, NOTICED THAT THE STATIONERY IN
 HARRISON'S TYPEWRITER CARRIED THE NATIONAL TREASURY EMPLOYEES
 LETTERHEAD.  AFTER DISCUSSING THE SUBJECT WITH ROBERT SMITH, A
 SUPERVISOR AND GROUP MANAGER IN CHARGE OF A SECOND GROUP OF COLLECTION
 DIVISION REVENUE OFFICERS AT THE TOLEDO POST OF DUTY, ZIELINSKI RETURNED
 TO HARRISON AND INSTRUCTED HER TO STOP TYPING IMMEDIATELY.  HE TOLD HER
 THAT SHE COULD NOT TYPE THE DOCUMENT ON GOVERNMENT EQUIPMENT OR TIME
 BECAUSE IT WAS "UNION BUSINESS." HARRISON REQUESTED PERMISSION TO
 CONTINUE IN ORDER TO COMPLETE THE PROJECT, BUT ZIELINSKI REFUSED.  SHE
 REMOVED THE LETTER FROM THE TYPEWRITER AND IMMEDIATELY WENT OVER TO
 DISCUSS THE ISSUE WITH WILLIAM GILLESPIE.
 
    SHORTLY THEREAFTER GILLESPIE ENTERED ZIELINSKI'S OFFICE AND ADVISED
 THAT HE HAD REQUESTED HARRISON TO TYPE THE LETTER, THAT SHE HAD SPENT
 ABOUT TEN MINUTES ON THE PROJECT, THAT IF ZIELINSKI WANTED TO "DOCK"
 HARRISON FOR THE TIME HE COULD DO SO, AND THAT THE UNION WOULD REIMBURSE
 HARRISON FOR HER TIME. GILLESPIE ALSO EXPLAINED THAT HE FELT IT WAS
 IMPROPER FOR ZIELINSKI TO DENY THE UNION THE RIGHT TO USE AN INTERNAL
 REVENUE SERVICE TYPEWRITER, AND THAT TO DO SO WAS AN UNFAIR LABOR
 PRACTICE.  ZIELINSKI EXPLAINED THAT IT WAS NOT IMPROPER AND THAT THE
 ISSUE HAD BEEN RESOLVED AGAINST THE UNION THE PREVIOUS YEAR (RESPONDENT
 EXHIBIT 12).  GILLESPIE PROMISED TO "GET BACK" TO ZIELINSKI LATER.  ON
 THE SAME DAY GILLESPIE LEFT A LETTER ON ZIELINSKI'S DESK EXPLAINING THAT
 THE USE OF THE TYPEWRITER TO TYPE UNION COMMUNICATIONS CONSTITUTED AN
 ESTABLISHED PRACTICE AND THAT THE RIGHT SHOULD NOT HAVE BEEN DENIED
 (GENERAL COUNSEL EXHIBIT 2).
 
    ZIELINSKI REPLIED TO GILLESPIE'S LETTER ON MARCH 16, 1979, AFTER
 OBTAINING ADVICE FROM JOHN GALLAGHER, A BRANCH CHIEF IN CHARGE OF THE
 ZIELINSKI AND SMITH GROUPS, AND THOMAS A. COZZENS, LABOR RELATIONS
 SPECIALISTS, AND REPRESENTATIVE OF THE DISTRICT DIRECTOR IN THE
 CLEVELAND DISTRICT OFFICE.  THE REPLY REFERRED TO FACILITIES AND
 SERVICES IN THE COLLECTIVE BARGAINING AGREEMENT AS THE ONLY ONES THAT
 RESPONDENT WAS OBLIGATED TO PROVIDE;  NOTED THAT THE USE OF GOVERNMENT
 TYPEWRITERS WAS NOT PROVIDED FOR THEREIN;  AND THAT SUCH USE FOR UNION
 BUSINESS WAS PROHIBITED.  /7/ THE REPLY ALSO NOTED THAT, "GROUP MANAGER
 ROBERT SMITH SPECIFICALLY DISCUSSED THIS ISSUE WITH YOUR UNION STEWARD,
 ROBERT WEKWERT ON JUNE 14, 1978" (GENERAL COUNSEL EXHIBIT 3).  /8/
 
    WITH RESPECT TO THE JUNE 14, 1978 DISCUSSION BETWEEN SMITH AND
 WEKWERT, THE RECORD REVEALED THAT PRIOR TO THE DISCUSSION ZIELINSKI
 BROUGHT TO SMITH'S ATTENTION A MEMORANDUM TYPES IN SCRIPT ON UNION
 STATIONERY.  THE DOCUMENT HAD BEEN POSTED ON A UNION BULLETIN BOARD.
 ZIELINSKI AND SMITH CONCLUDED THAT THE MEMORANDUM HAD BEEN TYPED ON A
 NEW TYPEWRITER OBTAINED FOR USE BY ROSEMARY HARRISON AT THE TOLEDO POST
 OF DUTY.  AFTER DISCUSSING THE ISSUE WITH ZIELINSKI, AND RECEIVING
 INSTRUCTION FROM BRANCH CHIEF JOHN GALLAGHER, SMITH CALLED IN WEKWERT
 AND BECAUSE OF HIS POSITION AS UNION STEWARD, ADVISED HIM THAT THE USE
 OF THE TYPEWRITER FOR UNION BUSINESS WAS NOT PROVIDED FOR IN THE
 COLLECTIVE BARGAINING AGREEMENT, AND THAT THE PRACTICE WAS PROHIBITED
 (RESPONDENT EXHIBIT 14).  /9/ WEKWERT ADVISED SMITH THAT SMITH WAS
 CORRECT AND THAT THE PRACTICE WOULD NOT BE REPEATED IN THE FUTURE (TR.
 338-339).  /10/
 
    WEKWERT WAS APPOINTED TO THE POSITION OF STEWARD IN OCTOBER OF 1977.
 CHAPTER 44 HAS ONLY ONE STEWARD SERVING THE MEMBERSHIP AT THE TOLEDO
 POST OF DUTY (TR. 163).  MANAGEMENT OFFICIALS DEALT WITH WEKWERT ON A
 WIDE RANGE OF LOCAL LABOR-MANAGEMENT ISSUES (TR.  324, 329, 362-364,
 434-435, 460-461). IN FACT, WEKWERT WAS A FOCAL POINT FOR DEALINGS WITH
 THE UNION IN TOLEDO (TR. 330).  DEALINGS WITH THE CHAPTER PRESIDENT WERE
 NOT CUSTOMARY UNLESS THE CHAPTER PRESIDENT WAS ACTING AS THE STEWARD
 DURING VACATION PERIODS (TR. 362-363).  THE RESPONDENT ACKNOWLEDGED THAT
 IT PREFERRED TO DISPOSE OF LABOR MANAGEMENT PROBLEMS AT THE LOWEST LEVEL
 (TR. 228). THERE WAS ALSO CLEAR INDICATION IN THE RECORD THAT ALL
 STEWARDS WERE ACTUALLY REPRESENTATIVES OF THE JOINT COUNCIL OF CHAPTERS
 IN THE CLEVELAND DISTRICT (TR. 240).  /11/
 
    THE RECORD DISCLOSED THAT THE NATIONAL TREASURY EMPLOYEES UNION WAS
 KNOWN AS THE NATIONAL ASSOCIATION OF INTERNAL REVENUE EMPLOYEES AT THE
 TIME THE PARTIES HEREIN EXECUTED THEIR FIRST COLLECTIVE BARGAINING
 AGREEMENT IN 1972 (RESPONDENT EXHIBIT 1), AND THAT PRIOR TO THE
 EXECUTION OF THE FIRST AGREEMENT, IT WAS THE PRACTICE OF MANAGEMENT AT
 THE TOLEDO POST OF DUTY TO ALLOW THE USE OF OFFICE EQUIPMENT BY
 REPRESENTATIVES OF THE NATIONAL ASSOCIATION OF INTERNAL REVENUE
 EMPLOYEES (TR. 391-392, 394).
 
    AFTER THE EXECUTION OF THE FIRST COLLECTIVE BARGAINING AGREEMENT, THE
 RESPONDENT'S POLICY WAS GOVERNED BY CONTRACTUAL PROVISIONS RELATING TO
 THE SUBJECT.  AS NOTED, WITH MINOR EXCEPTIONS, NOT RELEVENT HERE, THE
 USE OF OFFICE EQUIPMENT BY THE UNION HAS NOT BEEN COUNTENANCED BY THE
 PROVISIONS IN THE SERIES OF COLLECTIVE BARGAINING AGREEMENTS EXECUTED BY
 THE PARTIES SINCE 1972.
 
    POLICING OF THE RESTRICTIVE PROVISIONS IN THESE COLLECTIVE BARGAINING
 AGREEMENTS WAS CONSIDERED TO BE A SIGNIFICANT PROBLEM THROUGHOUT THE
 CLEVELAND DISTRICT.  MANAGEMENT RELIED UPON A SERIES OF TRAINING
 SESSIONS TO INSTRUCT MANAGERS CONCERNING THE SPECIFIC FACILITIES AND
 SERVICES WHICH MIGHT BE MADE AVAILABLE TO THE UNION UNDER THE TERMS OF
 THE COLLECTIVE BARGAINING AGREEMENTS (TR. 186-187, 191-192).  WITH
 RESPECT TO POLICING THE SYSTEM INITIATED BY THE COLLECTIVE BARGAINING
 AGREEMENTS, MANAGEMENT TOOK THE POSITION THAT THE UNION WAS AWARE OF THE
 LIMITATIONS APPROVED BY THE PARTIES AND INCORPORATED IN THE COLLECTIVE
 BARGAINING AGREEMENTS, AND THAT ALL CLEVELAND DISTRICT MANAGERS SHOULD
 ENFORCE THE POLICY.  HOWEVER, IT WAS FELT THAT COMPLIANCE WITH THE
 RESTRICTIVE PROVISIONS IN THE AGREEMENTS, RATHER THAN SUSPICION AND
 DISTRUST, SHOULD BE ANTICIPATED (TR. 224-225).  MANAGERS WERE NOT GIVEN
 AUTHORITY TO MODIFY THE COLLECTIVE BARGAINING AGREEMENT (TR. 225).  IT
 WAS DISCLOSED THAT MANAGEMENT SOUGHT TO AVOID "GESTAPO TYPE" TACTICS IN
 EFFORTS TO ENFORCE THE PROVISIONS OF THE COLLECTIVE BARGAINING
 AGREEMENTS (TR. 301-302).  THE METHOD USED WAS DESCRIBED AS FOLLOWS BY
 GROUP MANAGER ROBERT SMITH:
 
    Q.  DO YOU REMEMBER HOW IN YOUR TRAINING, . . . YOU WERE TO POLICE
 SUCH THINGS?
 
    A.  YES. IT WAS MORE LIKE TO KEEP AN EYE OUT FOR IT.  WHENEVER YOU
 SEE IT OCCUR, DO NOT LET
 
    IT GO BY (TR. 348).
 
    THE RECORD REFLECTS THAT THE UNION CONTINUED TO USE TYPEWRITERS,
 PHOTOCOPYING EQUIPMENT AND PERHAPS OTHER OFFICE EQUIPMENT NOT AUTHORIZED
 BY THE COLLECTIVE BARGAINING AGREEMENT, AT THE TOLEDO POST OF DUTY
 DURING THE YEARS FOLLOWING EXECUTION OF THE FIRST COLLECTIVE BARGAINING
 AGREEMENT, DESPITE THE LIMITATIONS IMPOSED BY THE CONTRACTUAL PROVISIONS
 AND MANAGEMENT POLICY.  THIS FACT WAS ESTABLISHED BY A NUMBER OF
 WITNESSES CALLED ON BEHALF OF THE UNION.  THE UNION RELIES HEAVILY UPON
 SUCH ACTUAL USE, CIRCUMSTANTIAL EVIDENCE TENDING TO INDICATE THAT TOLEDO
 POST OF DUTY MANAGERS WOULD HAVE BEEN IN A POSITION TO OBSERVE SUCH USE,
 AND SOME EVIDENCE OF LIMITED APPROVAL OF THE PRACTICE DURING THE PERIOD
 BEFORE AND AFTER EXECUTION OF THE FIRST COLLECTIVE BARGAINING AGREEMENT.
 
    THROUGH THE TESTIMONY OF ALPHONSE JACHIMIAK, A RETIRED COLLECTION
 DIVISION GROUP MANAGER, THE UNION DID INTRODUCE EVIDENCE OF PERMISSIVE
 USE FOR A PERIOD OF TIME AT THE TOLEDO POST OF DUTY.  JACHIMIAK PRECEDED
 ZIELINSKI AS GROUP MANAGER AND RETIRED IN JULY OF 1977.  HE ALLOWED
 CHAPTER 44 SECRETARIES TO UTILIZE TYPEWRITERS AT THE TOLEDO POST OF DUTY
 PROVIDED SUCH USE DID NOT INTERFERE WITH WORK ACTIVITY.  /12/ HE RELATED
 THAT SUCH USE OCCURRED UPON REQUEST WHILE HE WAS SERVING AS GROUP
 MANAGER OVER A FOURTEEN YEAR PERIOD, AND THAT HE AND OTHER GROUP
 MANAGERS APPROVED THE PRACTICE (TR. 83-86).  /13/ JACHIMIAK TESTIFIED
 THAT HIS CONSENT WAS BASED UPON A LIBERAL POLICY ESTABLISHED BY
 MANAGEMENT IN THE CLEVELAND DISTRICT DURING THE PERIOD 1948 TO 1950.
 
    MYRON TUTELIANO, A CONTEMPORARY OF JACIMIAK'S DURING A PERIOD PRIOR
 TO TUTELIANO'S TRANSFER OUT OF TOLEDO IN THE FIRST WEEK OF 1977, HELD A
 SIMILAR MANAGEMENT POSITION FOR A PERIOD OF YEARS PRIOR TO HIS TRANSFER.
  ALTHOUGH TUTELIANO ADMITTED THAT SUCH A PRACTICE HAD IN FACT EXISTED
 PRIOR TO THE EFFECTIVE DATE OF THE FIRST COLLECTIVE BARGAINING AGREEMENT
 IN 1972, HE STATED THAT HE WAS UNDER THE IMPRESSION THE UNION'S USE OF
 SUCH EQUIPMENT TERMINATED WITH THE EXECUTION OF THE FIRST COLLECTIVE
 BARGAINING AGREEMENT (TR. 387-391, 394).  HE TESTIFIED THAT HE DID NOT
 OBSERVE THE PRACTICE THEREAFTER AT THE TOLEDO POST OF DUTY.  /14/
 
    IN ADDITION TO JACHIMIAK'S TESTIMONY, MICHAEL KILCOURSE, A FORMER
 OFFICER OF CHAPTER 44 TESTIFIED THAT HE ATTENDED A 1973 OR 1974 LABOR
 MANAGEMENT MEETING IN THE CLEVELAND DISTRICT OFFICE, AND THAT ALVIN
 KELLEY, THE THEN DISTRICT DIRECTOR WAS ADVISED OF THE FACT THAT UNION
 REPRESENTATIVES WERE UTILIZING THE PHOTOCOPYING MACHINE FOR UNION
 RELATED WORK.  KILCOURSE REPORTED THAT KELLEY TOOK THE POSITION THAT IF
 THE PRIVILEGE WERE NOT ABUSED THE UNION COULD CONTINUE TO USE SUCH
 EQUIPMENT IN THE CLEVELAND DISTRICT (TR. 68-70).
 
    RESPONDENT EXHIBIT 9, A COPY OF A FREEDOM OF INFORMATION ACT REQUEST
 ADDRESSED TO THE RESPONDENT BY THE NATIONAL TREASURY EMPLOYEES UNION,
 AND THE RESPONSE THERETO, REFLECTS COPIES OF MINUTES OF MEETINGS HELD
 WHILE ALVIN KELLEY WAS CLEVELAND DISTRICT DIRECTOR AND MICHAEL KILCOURSE
 WAS CHAPTER 44 PRESIDENT.  THIS EXHIBIT REFLECTS THAT THE ONLY MEETING
 WHEREIN THESE INDIVIDUALS WERE PRESENT OCCURRED ON MARCH 13, 1973.
 HOWEVER, THE MINUTES REFLECT NO REFERENCE TO DISTRICT DIRECTOR KELLEY'S
 AUTHORIZATION TO USE PHOTOCOPYING EQUIPMENT.  THE MINUTES OF SUCH
 MEETINGS WERE DEEMED TO BE ACCURATE IN THE ABSENCE OF OBJECTION FROM
 UNION MEMBERS PRESENT. THE RECORD DISCLOSED NO EVIDENCE OF OBJECTION TO
 THE MINUTES OF THE MARCH 13, 1973, MEETING NOR AMENDMENT THEREOF.
 
    THE RECORD REVEALED THAT ALVIN KELLEY SERVED AS THE DISTRICT DIRECTOR
 OF THE CLEVELAND DISTRICT FROM DECEMBER OF 1973 UNTIL DECEMBER OF 1974
 (TR. 190), AND THAT ALL DISTRICT DIRECTORS EXPRESSED THE VIEW THAT THE
 UNION WAS ENTITLED ONLY TO THAT WHICH HAD BEEN NEGOTIATED AND SPELLED
 OUT IN COLLECTIVE BARGAINING AGREEMENTS (TR. 423).
 
    IN ADDITION TO THE POSITION TAKEN BY MANAGEMENT ON MARCH 8 AND 16,
 1979, AND JUNE 14, 1978, EVIDENCE ESTABLISHED THAT THE ISSUE WAS RAISED
 AT THE DISTRICT DIRECTOR'S LEVEL ON MARCH 1, 1978 IN A CONVERSATION
 BETWEEN THOMAS COZZENS AND MICAHEL A. SWEENEY, CHIEF STEWARD FOR THE
 CLEVELAND DISTRICT JOINT COUNCIL OF CHAPTERS (TR. 208-214, 238-239).  ON
 THIS DATE HANDWRITTEN LETTERS RELATING TO UNION BUSINESS WERE GIVEN TO
 COZZENS BY SWEENEY. UPON BEING CHIDED BY COZZENS CONCERNING THE USE OF
 HANDWRITTEN LETTERS TO COMMUNICATE WITH MANAGEMENT AT THE DISTRICT
 DIRECTOR'S LEVEL (RESPONDENT EXHIBITS 5 AND 6), SWEENEY RESPONDED THAT
 COMMUNICATIONS WOULD BE TYPED IF THE CLEVELAND DISTRICT ALLOWED THE
 UNION TO USE TYPEWRITERS.
 
    IN FEBRUARY OF 1978, THE ISSUE WAS RAISED DURING A DISCUSSION
 RELATING TO A GRIEVANCE.  ROBERT SMITH AND THOMAS COZZENS PARTICIPATED
 ON BEHALF OF THE RESPONDENT AT THE TOLEDO POST OF DUTY, AND WILLIAM
 GILLESPIE AND ROBERT WEKWERT REPRESENTED CHAPTER 44 (TR.  336-337).
 /15/ AT THIS MEETING GILLESPIE ALLUDED TO A DECISION WHEREIN IT WAS
 ESTABLISHED THAT THE NATIONAL TREASURY EMPLOYEES UNION HAD, IN AN UNFAIR
 LABOR PRACTICE PROCEEDING, ESTABLISHED THE RIGHT TO USE GOVERNMENT
 EQUIPMENT IN A CASE INVOLVING A PAST PRACTICE.  COZZENS REPLIED THAT THE
 CASE WAS INAPPLICABLE TO THE CLEVELAND DISTRICT, THAT SUCH A PRACTICE
 HAD NEVER EXISTED IN THE CLEVELAND DISTRICT, THAT THERE WAS NO PRACTICE
 OF ALLOWING THE UNION TO UTILIZE GOVERNMENT EQUIPMENT, AND FURTHER THAT
 SUCH USE WAS PROHIBITED (TR. 207-209, 336-337).
 
    DURING ANOTHER ENCOUNTER ON AUGUST 20, 1976, THOMAS COZZENS SUGGESTED
 TO HAYWARD C. REED AN ASSISTANT COUNSEL OF THE NATIONAL TREASURY
 EMPLOYEES UNION THAT A HANDWRITTEN REQUEST TO NEGOTIATE THE IMPACT OF A
 REORGANIZATION WAS NOT APPROPRIATE.  COZZENS RELATED THE FOLLOWING
 REGARDING REED'S RESPONSE:
 
    "IF WE LET HIM USE THE TYPEWRITERS, IF WE LET THE PEOPLE USE THE
 TYPEWRITERS THEY WOULD BE
 
    HAPPY TO TYPE IT." (TR. 217 AND RESPONDENT EXHIBIT 7).
 
    THE RECORD ALSO DISCLOSED THAT IN APRIL OF 1976, THOMAS COZZENS AND
 ONE DON HEIDLER, REPRESENTING CLEVELAND DISTRICT MANAGEMENT, HAD A
 DISCUSSION WITH ONE STAN FOX WHO WAS THE CHAIRMAN OF THE JOINT COUNCIL
 OF CHAPTERS IN THE CLEVELAND DISTRICT, TO EXCHANGE INFORMATION
 CONCERNING A PROPOSED REORGANIZATION.  DURING THE MEETING FOX WAS GIVEN
 A FOUR PAGE DOCUMENT OUTLINING THE CHANGES THAT WERE TO BE MADE.  A FEW
 DAYS LATER COZZENS LEARNED THAT ABOUT SEVENTY EMPLOYEES HAD COPIES OF
 THE DOCUMENT AND THAT THE PAPER USED REFLECTED THAT THE RESPONDENT'S
 XEROX MACHINE HAD BEEN UTILIZED TO REPRODUCE THE COPIES.  COZZENS
 ADVISED STAN FOX OF HIS FINDINGS AND OBTAINED AN APOLOGY FROM FOX.
 COZZENS ADVISED FOX THAT AS CHAIRMAN OF THE JOINT COUNCIL IT WAS FOX'S
 OBLIGATION TO INFORM ALL OF THE STEWARDS AND OTHER UNION OFFICIALS IN
 THE CLEVELAND DISTRICT THAT THEY WERE NOT ENTITLED TO USE FACILITIES
 OTHER THAN THOSE SPECIFICALLY NEGOTIATED (TR. 221).  FOX EXPLAINED THAT
 THE USE OF THE XEROX MACHINE WAS DUE TO THE ACTIONS OF AN UNTRAINED
 STEWARD (TR.  221).
 
                        DISCUSSION AND CONCLUSIONS
 
    IT IS WELL ESTABLISHED THAT THE USE OF AGENCY FACILITIES AND
 EQUIPMENT BY A UNION IS A PRIVILEGE AND NOT A RIGHT, BUT THAT ONCE
 GRANTED SUCH PRIVILEGE BECOMES, IN EFFECT, AN ESTABLISHED TERM AND
 CONDITION OF EMPLOYMENT WHICH MAY NOT THEREAFTER BE UNILATERALLY
 CHANGED.  ARKANSAS ARMY NATIONAL GUARD, ASSISTANT SECRETARY CASE NO.
 64-4120(CA), 1 FLRA NO. 100 (AUGUST 15, 1979), REPORT NO. 15;  INTERNAL
 REVENUE SERVICE SOUTHWEST REGION, APPELLATE BRANCH OFFICE, NEW ORLEANS,
 LOUISIANA, A/SLMR NO. 1153 (1978);  U.S. DEPARTMENT OF THE TREASURY,
 INTERNAL REVENUE SERVICE, NEW ORLEANS DISTRICT, NEW ORLEANS, LOUISIANA,
 A/SLMR NO. 1034 (1978);  VETERANS ADMINISTRATION, VETERANS
 ADMINISTRATION REGIONAL OFFICE, NEW YORK REGION, A/SLMR NO. 694 (1976);
 INTERNAL REVENUE SERVICE, OFFICE OF THE REGIONAL COMMISSIONER, WESTERN
 REGION, A/SLMR NO. 473 (1975);  LOS ANGELES AIR ROUTE TRAFFIC CONTROL
 CENTER, FEDERAL AVIATION ADMINSTRATION, A/SLMR NO. 283 (1973).
 
    AS NOTED IN AUTHORITIES CITED THE USE OF AGENCY FACILITIES AND
 EQUIPMENT IS A PRIVILEGE AND NOT A RIGHT.  UNLESS THE PRIVILEGE OR RIGHT
 TO UTILIZE AGENCY FACILITIES AND SERVICES EXISTS IN THE FIRST INSTANCE,
 AN UNFAIR LABOR PRACTICE CANNOT BE PREDICATED UPON A MANAGEMENT EFFORT
 TO PREVENT OR PROHIBIT THE USE OF AGENCY FACILITIES AND SERVICES.
 HEADQUARTERS, 2750TH AIR BASE WING, U.S. AIR FORCE, WRIGHT-PATTERSON AIR
 FORCE BASE, OHIO, ASSISTANT SECRETARY CASE NO. 53-10533 (CA), 1 FLRA NO.
 99 (AUGUST 15, 1979), REPORT NO. 14.  THE ESSENCE OF THE CONTENTIONS AND
 ARGUMENTS OF THE PARTIES IN THIS CASE RELATES PRINCIPALLY TO WHETHER,
 UNDER THE PARTICULAR CIRCUMSTANCES PRESENTED HERE, A PAST PRACTICE
 EXISTED WITH RESPECT TO THE USE OF TYPEWRITERS AND OTHER OFFICE
 EQUIPMENT (NOT SPECIFICALLY AUTHORIZED IN THE COLLECTIVE BARGAINING
 AGREEMENT), AND IF SO, WHETHER THE RESPONDENT UNILATERALLY TERMINATED
 THE PAST PRACTICE WITHOUT PROVIDING THE UNION AN OPPROTUNITY TO BARGAIN
 CONCERNING THE ISSUE OF WHETHER OR NOT THE PRACTICE SHOULD BE
 DISCONTINUED.  /16/
 
    HERE THE USE OF TYPEWRITERS AND PHOTOCOPYING EQUIPMENT WAS PERMITTED
 AT THE TOLEDO POST OF DUTY BY ALPHONSE JACHIMIAK AND PERHAPS OTHERS
 PRIOR TO JACHIMIAK'S RETIREMENT IN JULY OF 1977.  /17/ HOWEVER, AT THE
 MEETING IN FEBRUARY OF 1978, THOMAS COZZENS, REPRESENTING THE DISTRICT
 DIRECTOR, ADVISED CHAPTER 44 OFFICERS WILLIAM GILLESPIE AND ROBERT
 WEKWERT THAT THE USE OF FACILITIES AND SERVICES NOT IDENTIFIED IN THE
 COLLECTIVE BARGAINING AGREEMENT, WAS PROHIBITED, AND FURTHER THAT A PAST
 PRACTICE IN THIS REGARD DID NOT EXIST.  IN A SUBSEQUENT MARCH 1, 1978
 MEETING BETWEEN COZZENS AND MICHEAL SWEENEY, CHIEF STEWARD FOR THE
 CLEVELAND DISTRICT OF CHAPTERS, SWEENEY ACKNOWLEDGED THE EXISTENCE OF
 THE PROHIBITION AGAINST THE UNION'S USE OF TYPEWRITERS IN THE CLEVELAND
 DISTRICT. A STILL CLEARER EXPRESSION OF A TERMINATION OF ANY EXISTING
 PAST PRACTICE OCCURRED ON JUNE 14, 1978, AT WHICH TIME ROBERT SMITH
 OUTLINED RESPONDENT'S POSITION REGARDING THE PROHIBITION AGAINST THE USE
 OF A COLLECTION DIVISION TYPEWRITER, AND IN SO DOING EFFECTIVELY RELATED
 THE USE OF SUCH EQUIPMENT TO THE SPECIFIC PROVISIONS OF THE COLLECTIVE
 BARGAINING AGREEMENT.  /18/ IT THUS CLEARLY APPEARS, THAT IF THE
 PRACTICE WAS CONDONED AT THE TOLEDO POST OF DUTY, IT WAS CONDONED IN A
 LIMITED WAY ONLY.  MOREOVER, IF CONDONED IT WAS EFFECTIVELY TERMINATED
 BY HIGHER MANAGEMENT AS EARLY AS FEBRUARY OF 1978, AND CERTAINLY BY JUNE
 14, 1978.
 
    UNDER THE PROVISIONS OF SECTION 2423.18 OF REGULATIONS IMPLEMENTING
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 5 C.F.R.
 2423.18, THE GENERAL COUNSEL HAS "THE BURDEN OF PROVING THE ALLEGATIONS
 OF THE COMPLAINT BY A PREPONDERANCE OF THE EVIDENCE." IN ORDER TO IMPOSE
 A BARGAINING OBLIGATION IN THIS CASE, IT WOULD FIRST BE NECESSARY FOR
 THE GENERAL COUNSEL TO ESTABLISH THAT THE PROHIBITION ARTICULATED ON
 MARCH 8 AND 16, 1979, REPRESENTED A CHANGE IN A PREVIOUSLY EXISTING
 PRACTICE AT THE TOLEDO POST OF DUTY.  DEPARTMENT OF HEALTH, EDUCATION
 AND WELFARE, SOCIAL SECURITY ADMINISTRATION, BRSI, NORTHEASTERN PROGRAM
 SERVICE CENTER, ASSISTANT SECRETARY CASE NO. 30-08551 (CA), 1 FLRA NO.
 88 (JULY 31, 1979), REPORT NO. 13.  THE EVIDENCE ESTABLISHES THAT ON THE
 MENTIONED DATES, AND FOR MANY MONTHS PRIOR THERETO, THE PRACTICE HAD
 BEEN EFFECTIVELY PROHIBITED BY THE RESPONDENT AT THE TOLEDO POST OF
 DUTY.  THERE WAS NO EVIDENCE THAT IT WAS KNOWN AND PERMITTED OR EVEN
 TACITLY CONDONED ON THE DATES SPECIFIED IN THE COMPLAINT;  NOR WAS THERE
 ANY CONVINCING EVIDENCE INTRODUCED TO SHOW THAT IT WAS EVER OBSERVED
 FOLLOWING THE PROHIBITION IN FEBRUARY, 1978 OR JUNE 14, 1978.  DISTRICT
 LEVEL AND TOLEDO POST OF DUTY REPRESENTATIVES OF THE RESPONDENT DEALT
 DIRECTLY AND SPECIFICALLY WITH THE PRACTICE IN FEBRUARY OF 1978 AND ON
 JUNE 14, 1978.
 
    THE RECORD DOES REFLECT THAT USE DID IN FACT EXIST AFTER FEBRUARY
 1978.  HOWEVER, IT WAS NOT OPEN TO VIEW BY MANAGEMENT BECAUSE THOSE
 USING THE EQUIPMENT REGULARLY USED SUCH AS PART OF THEIR OFFICIAL
 DUTIES, AND BECAUSE MANAGEMENT RELIED HEAVILY UPON VOLUNTARY COMPLIANCE.
  THESE FACTORS, COUPLED WITH A RELUCTANCE TO IMPLEMENT A MANAGEMENT
 INVESTIGATIVE EFFORT INTO UNION ACTIVITY, LED MANAGEMENT TO RELY UPON A
 POLICY OF IMPLEMENTING CORRECTIVE ACTION ONLY UPON OBSERVATION OF THE
 PRACTICE.  UNDER THESE CIRCUMSTANCES IT CANNOT BE SAID THAT THE PRACTICE
 WAS APPROVED OR THAT IT WAS OPEN TO VIEW BY MANAGEMENT.
 
    IN FACT, IT WOULD BE MORE LOGICAL TO ASSUME THAT THE UNION WAS IN
 FACT RESPONDING TO MANAGEMENT'S REQUEST TO DISCONTINUE USE.  THERE IS NO
 INDICATION THAT THE UNION DISAGREED WITH MANAGEMENT'S FEBRUARY 1978, OR
 JUNE 14, 1978, PRONOUNCEMENTS. THE RECORD INDICATES THAT MANAGEMENT
 EXPECTED VOLUNTARY COMPLIANCE. IT MIGHT ALSO BE CONCLUDED THAT THE
 ABSENCE OF UNION OBJECTION TO MANAGEMENT PRONOUNCEMENTS ON THE ISSUE,
 LULLED MANAGEMENT INTO A BELIEF THAT THE UNION WAS VOLUNTARILY COMPLYING
 AT THE TOLEDO POST OF DUTY.  FINALLY, IN ADDITION TO THE FACT THAT THE
 RECORD EVIDENCES NO SHOWING OF ACTUAL AWARENESS OF THE PRACTICE AFTER
 FEBRUARY OF 1978, OR JUNE 14, 1978, THERE WAS NO SHOWING OF
 CIRCUMSTANCES WHICH REASONABLY WOULD HAVE LED TO AWARENESS.  IT WOULD
 NOT HAVE BEEN UNUSUAL, BASED UPON THE FACTS BROUGHT OUT, FOR MANAGEMENT
 TO HAVE REMAINED IGNORANT OF THE PRACTICE AFTER THE FEBRUARY 1978 AND
 JUNE 14, 1978 ADMONITIONS TO THE UNION.
 
    EVIDENCE THAT INDIVIDUAL MANAGERS WOULD HAVE DEVELOPED SUCH KNOWLEDGE
 HAD THEY BEEN MORE OBSERVANT, AND/OR INQUIRED MORE THOROUGHLY INTO THE
 NATURE OF UNION ACTIVITY, WOULD NOT PROVIDE A BASIS FOR A FINDING THAT
 SUCH MANAGERS WERE IN FACT AWARE OF THE PRACTICE.
 
    COUNSEL FOR THE GENERAL COUNSEL CITES LANGUAGE USED BY ADMINISTRATIVE
 LAW JUDGE DEVANEY IN INTERNAL REVENUE SERVICE SOUTHWEST REGION,
 APPELLATE BRANCH OFFICE, NEW ORLEANS, LOUISIANA, SUPRA, FOR THE POSITION
 THAT AN OPEN AND NOTORIOUS PRACTICE ITSELF MAY CONSTITUTE FURTHER NOTICE
 OF THE EXISTENCE OF A PAST PRACTICE.  HOWEVER, THE MENTIONED CASE IS
 CLEARLY DISTINGUISHABLE SINCE IT REFLECTS THAT ACTUAL KNOWLEDGE OF THE
 PRACTICE WAS ESTABLISHED.  ALSO, THE PRACTICE PRESENTED HERE WAS NOT
 OPEN AND NOTORIOUS.
 
    IT IS ALSO CONCLUDED THAT U.S. DEPARTMENT OF TREASURY, INTERNAL
 REVENUE SERVICE, NEW ORLEANS DISTRICT, NEW ORLEANS, LOUISIANA, SUPRA,
 ALSO CITED BY COUNSEL FOR THE GENERAL COUNSEL, IS INAPPOSITE BECAUSE
 FACTUALLY DISTINGUISHABLE.
 
    THE ACTIONS OF ZIELINSKI IN STOPPING THE TYPING OF UNION BUSINESS ON
 RESPONDENT'S TYPEWRITER WAS BUT A REAFFIRMATION OF THE EXISTING POLICY
 WITHIN THE CLEVELAND DISTRICT OFFICE.  THE REAFFIRMATION OF AN EXISTING
 POLICY IS NOT A CHANGE IN THE CONDITIONS OF EMPLOYMENT.  DEPARTMENT OF
 THE NAVY, MARE ALLEN NAVAL SHIPYARD, VALLEJO, CALIFORNIA, A/SLMR NO. 736
 (1976);  ALABAMA NATIONAL GUARD, MONTGOMERY, ALABAMA, A/SLMR NO. 895
 (1977).  THE UNION'S FAILURE TO COMPLY WITH RESPONDENT'S EXPRESSION OF
 POLICY MAY NOT, WITHOUT MORE, BE USED AS A BASIS FOR PROOF OF THE
 EXISTENCE OF A PAST PRACTICE JUSTIFYING USE OF FACILITIES ON MARCH 8 AND
 16, 1979.  ALTHOUGH A POSSIBLE BASIS FOR AN UNFAIR LABOR PRACTICE CHARGE
 MAY HAVE EXISTED IN FEBRUARY OF 1978 OR PERHAPS ON JUNE 14, 1978, THE
 UNION DID NOT PURSUE THIS REMEDY.  /19/
 
    IN THE LIGHT OF THE FOREGOING IT IS UNNECESSARY TO ADDRESS OTHER
 ISSUES RAISED IN DEFENSE BY THE RESPONDENT.
 
                              RECOMMENDATION
 
    IN VIEW OF THE FINDINGS AND CONCLUSIONS OUTLINED HEREIN IT IS
 RECOMMENDED THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
 
                               LOUIS SCALZO
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  FEBRUARY 5, 1980
 
    WASHINGTON, D.C.
 
                               SERVICE SHEET
 
    CASE NO. 5-CA-165
 
    COPY OF:  RECOMMENDED DECISION AND ORDER
 
    DATED:  FEBRUARY 5, 1980
 
    "RECOMMENDED DECISION AND ORDER" ISSUED BY ADMINISTRATIVE LAW JUDGE
 LOUIS SCALZO WAS SENT TO THE FOLLOWING PERSONS BY CERTIFIED MAIL:
 
                                 LINDA LEE
 
    BRENDA M. ROBINSON, ESQUIRE
 
    SANDRA LEBOLD, ESQUIRE
 
    OFFICE OF THE GENERAL COUNSEL
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    REGION V, 219 S. DEARBORN STREET
 
    ROOM 1638
 
    CHICAGO, ILLINOIS 60604
 
    WILLIAM T. LYONS, ESQUIRE
 
    JAMES E. ROGERS, ESQUIRE
 
    OFFICE OF THE REGIONAL COUNSEL
 
    INTERNAL REVENUE SERVICE
 
    CENTRAL REGION
 
    P.O. BOX 2059
 
    CINCINNATI, OHIO 45201
 
    JAMES R. LAWRENCE, ESQUIRE
 
    NATIONAL FIELD REPRESENTATIVE
 
    NATIONAL TREASURY EMPLOYEES UNION
 
    1730 K STREET, N.W.
 
    WASHINGTON, .D.C.  20006
 
    REGULAR MAIL:
 
    MR. ROBERT TOBIAS
 
    GENERAL COUNSEL
 
    NATIONAL TREASURY EMPLOYEES UNION
 
    1730 K STREET, N.W.
 
    WASHINGTON, D.C.  20006
 
    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
 
    /1/ THE CLEVELAND DISTRICT OF INTERNAL REVENUE SERVICE INCLUDES THE
 TOLEDO, OHIO POST OF DUTY.
 
    /2/ ALTHOUGH THE COMPLAINT IDENTIFIES THE NATIONAL TREASURY EMPLOYEES
 UNION AS A CHARGING PARTY, COUNSEL REPRESENTING THE GENERAL COUNSEL
 ASSERTED THAT THE OBLIGATION TO BARGAIN WAS OWED TO THE NATIONAL
 TREASURY EMPLOYEES UNION CHAPTER 44 (TR. 168).
 
    /3/ IN ADDITION TO TYPEWRITERS, COUNSEL REPRESENTING THE GENERAL
 COUNSEL IDENTIFIED PHOTOCOPY MACHINES, ADDING MACHINES AND PENCIL
 SHARPENERS AS BEING INVOLVED (BRIEF SUBMITTED BY COUNSEL FOR GENERAL
 COUNSEL AT PG. 3).
 
    /4/ THE LAST ARGUMENT WAS NOT SPECIFICALLY PURSUANT IN RESPONDENT'S
 POST-HEARING BRIEF.
 
    /5/ UNDER AUTHORITY PROVIDED IN SECTION 2423.19(R) OF THE
 REGULATIONS, 5 C.F.R. 2423.19(R), THE FOLLOWING CORRECTIONS ARE MADE IN
 THE HEARING TRANSCRIPT:  (TABLE OMITTED)
 
    /6/ ARTICLE 14 OF THE CURRENT COLLECTIVE BARGAINING AGREEMENT DID
 PROVIDE FOR THE USE OF TELEPHONES, BULLETIN BOARDS, FILE CABINETS,
 SPACE, AND CERTAIN MATERIALS, PUBLICATIONS AND SERVICES.  HOWEVER, THESE
 ARE NOT IN ANY WAY INVOLVED IN THIS LITIGATION.
 
    /7/ IT IS AGAIN NOTED THAT THE GRAVAMEN OF THE COMPLAINT RELATES
 SOLELY TO RESPONDENT'S BLANKET PROHIBITION AGAINST THE USE OF CERTAIN
 EQUIPMENT AT THE TOLEDO POST OF DUTY, AND NOT TO THE PROHIBITION
 RELATING TO THE USE OF SUCH EQUIPMENT ON GOVERNMENT TIME.  IN LIGHT OF
 THE OFFICIAL TIME PROVISION IN THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (5 U.S.C. 7131) IT IS UNDERSTANDABLE WHY THE LATTER
 FACET OF ADMINISTRATIVE ACTION TAKEN BY ZIELINSKI WAS NOT QUESTIONED BY
 THE UNION.
 
    /8/ ON MARCH 30, 1979, ZIELINSKI AGAIN ADVISED HARRISON OF THE
 RESTRICTION RELATING TO PERFORMANCE OF UNION BUSINESS DURING WORKING
 HOURS AND WITH RESPECT TO THE UNAUTHORIZED USE OF OFFICE EQUIPMENT
 (RESPONDENT EXHIBIT 13).
 
    /9/ A SECOND TOPIC OF CONVERSATION RAISED BY SMITH DURING THIS
 MEETING DEALT WITH THE UNION'S PLACEMENT OF A BALLOT BOX IN A RESTRICTED
 AREA WITHOUT PERMISSION, AND THE TERMS OF ARTICLE 14 OF THE COLLECTIVE
 BARGAINING AGREEMENT WITH RESPECT TO THE RESPONDENT'S OBLIGATION TO
 SUPPLY SPACE FOR BALLOT BOXES USED IN CONNECTION WITH CHAPTER ELECTIONS.
  AS A RESULT OF THIS PORTION OF THE CONVERSATION THE BALLOT BOX WAS
 MOVED OUT OF THE RESTRICTED AREA BY THE UNION.
 
    GALLAGHER TESTIFIED THAT HE INSTRUCTED SMITH TO MAKE RESPONDENT'S
 POSITION CLEAR ON BOTH ISSUES DISCUSSED WITH WEKWERT (TR. 423-424).
 
    /10/ WEKWERT'S VERSION OF THE MEETING COINCIDES WITH SMITH'S ACCOUNT
 IN LARGE MEASURE. WEKWERT TESTIFIED, "I MAY HAVE NODDED OR SAID OKAY OR
 SOMETHING LIKE THAT." (TR. 130). THERE WAS NO INDICATION OF DISAGREEMENT
 ON WEKWERT'S PART WHEN FACED WITH SMITH'S POSITION ON THE ISSUE.  IN
 FACT WEKWERT DID NOT THEREAFTER USE TYPEWRITERS HIMSELF (TR. 455-456).
 THUS THE RECORD INDICATES ACQUIESCENCE AS DESCRIBED BY SMITH.
 
    /11/ COUNSEL FOR THE RESPONDENT ADMITTED THAT THE CURRENT COLLECTIVE
 BARGAINING AGREEMENT REFLECTED AMBIGUITY WITH RESPECT TO THE RELATIVE
 AUTHORITY OF THE JOINT COUNCIL AND CHAPTER 44 CONCERNING THE RIGHT TO
 NEGOTIATE WITH THE RESPONDENT (TR. 467).  HOWEVER, AS NOTED THE PRACTICE
 OF THE PARTIES CLEARLY INDICATES A BARGAINING HISTORY WITH CHAPTER
 REPRESENTATIVES AT THE CLEVELAND POST OF DUTY.
 
    ALTHOUGH THE RECORD REFLECTS VERY LITTLE OR NO EVIDENCE TO SUPPORT
 THE RESPONDENT'S CONTENTION THAT RESPONDENT DOES NOT OWE CHAPTER 44 ANY
 BARGAINING OBLIGATION UNDER THE TERMS OF THE COLLECTIVE BARGAINING
 AGREEMENT, THE GROUNDS SELECTED FOR DISPOSITION OF THIS LITIGATION MAKE
 IT UNNECESSARY TO DECIDE THIS PRECISE QUESTION.
 
    /12/ THERE WAS ALSO SOME INDICATION THAT JACHIMIAK AUTHORIZED THE USE
 OF COPYING EQUIPMENT.
 
    /13/ JACHIMIAK'S TESTIMONY WAS VAGUE AND NON-SPECIFIC AS TO ANY
 PERIOD OF PERMISSIVE USE ALLOWED BY OTHERS.
 
    /14/ TUTELIANO'S TESTIMONY CONTRADICTED JACHIMIAK'S TESTIMONY TO THE
 EFFECT THAT TUTELIANO ALLOWED THE PRACTICE AFTER 1972.
 
    /15/ THE NAMED INDIVIDUALS WERE IDENTIFIED BY COZZENS.  WILBUR JONES,
 A FIFTH INDIVIDUAL WAS INCLUDED IN SMITH'S ACCOUNT OF THE MEETING.
 
    /16/ THE FACT THAT THE COLLECTIVE BARGAINING AGREEMENT DOES NOT REFER
 SPECIFICALLY TO THE PRACTICE OF USING EQUIPMENT REFERRED TO IN THE
 COMPLAINT WOULD NOT, STANDING ALONE, SUPPORT A WAIVER OF RIGHTS TO
 CONTINUE AN ESTABLISHED PAST PRACTICE REGARDING THE USE OF SUCH
 EQUIPMENT.  U.S. DEPARTMENT OF THE TREASURY, INTERNAL REVEN