National Treasury Employees Union Joint Council (Chapters 14 and 36) (Respondent) and Internal Revenue Service and IRS St. Louis District (Complainant)

 



[ v03 p901 ]
03:0901(131)CO
The decision of the Authority follows:


 3 FLRA No. 131
 
 NATIONAL TREASURY EMPLOYEES UNION
 JOINT COUNCIL (CHAPTERS 14 and 36)
 Respondent
 
 and
 
 INTERNAL REVENUE SERVICE AND
 IRS ST. LOUIS DISTRICT
 Complainant
 
                                            Case No. 60-5878(CO)
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
 ORDER IN THE ABOVE-ENTITLED PROCEEDING, 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 COMPLAINANT FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER AND THE RESPONDENT FILED A
 RESPONSE TO THE COMPLAINT'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 (RE F.R. 36040) WHICH TRANSFER OF FUNCTIONS IS IMPLEMENTED
 BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
 2400.2).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE PERFORMANCE
 OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
 REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
 REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
 AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE
 HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
 RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE,
 INCLUDING THE COMPLAINANT'S EXCEPTIONS AND THE RESPONDENT'S RESPONSE TO
 THE EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW
 JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION, AS MODIFIED HEREIN.
 
    THE INSTANT CASE INVOLVES THE POSTING BY THE RESPONDENT OF AN
 OFFICIAL NOTICE OF THE ASSISTANT SECRETARY IN A PRIOR CASE (CASE NO.
 62-4870(CA)), WHICH POSTING ALLEGEDLY VIOLATED SECTION 19(B)(6) OF
 EXECUTIVE ORDER 11491, AS AMENDED.  ACCORDING TO THE FACTS AS FOUND BY
 THE ADMINISTRATIVE LAW JUDGE AND DETAILED IN HIS RECOMMENDED DECISION
 AND ORDER, THE POSTING WAS INCONSISTENT WITH THE SETTLEMENT REACHED BY
 THE PARTIES IN THE PRIOR CASE, UNDER WHICH POSTING WAS NOT REQUIRED.
 MOREOVER, THE RESPONDENT, IN ITS UNAUTHORIZED POSTING AND DISTRIBUTION
 OF THE OFFICIAL NOTICE, ALTERED AND DEFACED THE NOTICE AND
 MISREPRESENTED THE NATURE OF THE SETTLEMENT AGREED TO BY THE PARTIES IN
 THAT CASE.
 
    WHILE WE AGREE WITH THE CONCLUSION OF THE ADMINISTRATIVE LAW JUDGE
 THAT THIS CONDUCT OF THE RESPONDENT WAS NOT VIOLATIVE OF SECTION
 19(B)(6) OF THE EXECUTIVE ORDER, WE CONDEMN THE ACTIONS TAKEN BY THE
 RESPONDENT AND EMPHASIZE THAT OUR DISMISSAL OF THE COMPLAINT DOES NOT IN
 ANY MANNER CONDONE THE RESPONDENT'S CONDUCT.  THE BREACH OF THE
 SETTLEMENT AGREEMENT AND THE ALTERATION OF THE OFFICIAL NOTICE BY THE
 RESPONDENT CONSTITUTE A CLEAR ABUSE OF THE ADJUDICATORY PROCESSES
 ESTABLISHED BY THE EXECUTIVE ORDER.  ADDITIONALLY, SUCH CONDUCT BY THE
 RESPONDENT GRAVELY UNDERMINES SETTLEMENT EFFORTS, WHICH DEPEND ON THE
 GOOD FAITH OF THE LITIGANTS AND WHICH ARE CRITICAL TO THE EFFECTIVE
 OPERATION OF THE ENTIRE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 PROGRAM.
 
    THE ADMINISTRATIVE LAW JUDGE INDICATED, AND WE AGREE, THAT A FORUM
 FOR THE RESOLUTION OF THE DISPUTE HERE INVOLVED MAY LIE THROUGH THE
 GRIEVANCE MACHINERY OF THE PARTIES' NEGOTIATED AGREEMENT, WHICH
 AGREEMENT PROHIBITED THE POSTING OF MATERIALS WITHOUT AGENCY APPROVAL.
 HOWEVER, THE ADMINISTRATIVE LAW JUDGE FURTHER ASSERTED THAT RELIEF FOR
 SUCH OFFENSIVE CONDUCT BY THE RESPONDENT FALLS OUTSIDE THE AMBIT OF THE
 UNFAIR LABOR PRACTICE PROCEDURES OF THE EXECUTIVE ORDER.  WE DO NOT
 ADOPT SUCH ASSERTION.  WITHOUT HERE PASSING UPON THIS ISSUE, WE NOTE
 THAT SECTION 19(B)(1) OF THE ORDER PRECLUDES INTERFERENCE WITH AND
 RESTRAINT BY A LABOR ORGANIZATION OF EMPLOYEES IN THEIR RIGHTS ASSURED
 BY THE ORDER.  THE ADMINISTRATIVE LAW JUDGE HIMSELF TACITLY RECOGNIZED
 THE RELEVANCE OF THIS SECTION, DENYING ONLY ON TIMELINESS GROUNDS
 COMPLAINANT'S MOTION TO AMEND THE COMPLAINT TO INCLUDE A 19(B)(1)
 ALLEGATION (NOTE 1 OF RECOMMENDED DECISION AND ORDER).
 
    NEVERTHELESS, AS ALREADY MENTIONED, WE AGREE WITH THE CONCLUSION OF
 THE ADMINISTRATIVE LAW JUDGE THAT RESPONDENT'S ACTIONS WERE NOT
 VIOLATIVE OF SECTION 19(B)(6) OF THE EXECUTIVE ORDER, AS ALONE ALLEGED
 IN THE PRESENT CASE.  /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 60-5878(CO) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JULY 31, 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:
 
    JOSEPH V. KAPLAN, ESQ.
 
    ASSISTANT COUNSEL
 
    NATIONAL TREASURY EMPLOYEES UNION
 
    1730 K STREET, NW., SUITE 1101
 
    WASHINGTON, D.C.  20006
 
    ROGER P. KAPLAN, ESQ.
 
    CHIEF BRANCH NO. 1
 
    OFFICE OF GENERAL COUNSEL
 
    GENERAL LEGAL SERVICES DIVISION
 
    INTERNAL REVENUE SERVICE
 
    1111 CONSTITUTION AVENUE, NW.
 
    ROOM 4562
 
    WASHINGTON, D.C.  20224
 
    SUSAN D. MCCLUSKEY, ESQ.
 
    ASSISTANT COUNSEL
 
    NATIONAL TREASURY EMPLOYEES UNION
 
    1730 K STREET, N.W., SUITE 1101
 
    WASHINGTON, D.C.  20006
 
                            FOR THE RESPONDENT
 
    ROGER P. KAPLAN, ESQ.
 
    INTERNAL REVENUE SERVICE
 
    1111 CONSTITUTION AVENUE, NW.
 
    ROOM 4562
 
    WASHINGTON, D.C.  20224
 
                            FOR THE COMPLAINANT
 
    BEFORE:  WILLIAM NAIMARK
 
    ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON MAY 7, 1979 BY
 THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, KANSAS
 CITY REGION, A HEARING WAS HELD BEFORE THE UNDERSIGNED IN THIS CASE ON
 JUNE 26, 1979 AT KANSAS CITY, MISSOURI.
 
    THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS
 AMENDED, (HEREIN CALLED THE ORDER).  AN ORIGINAL COMPLAINT WAS FILED ON
 AUGUST 18, 1978 BY INTERNAL REVENUE SERVICE, AND IRS ST. LOUIS DISTRICT
 (HEREIN CALLED COMPLAINANT) AGAINST NATIONAL TREASURY EMPLOYEES UNION
 AND NTEU JOINT COUNCIL (CHAPTERS 14 AND 36).  IT ALLEGED THAT SAID
 UNIONS VIOLATED SECTION 19(B)(6) OF THE ORDER BY MISREPRESENTING A
 SETTLEMENT REACHED BETWEEN THE PARTIES IN A PRIOR CASE.  THE COMPLAINT
 AVERRED THAT THE UNIONS POSTED A DOCTORED COPY OF A DEPARTMENT OF LABOR
 'NOTICE TO EMPLOYEES' BY ATTACHING PICTURES OF TWO OFFICIALS OF THE
 COMPLAINANT AND INSERTING THE WORD "GUILTY" ABOVE THE PICTURES.
 COMPLAINANT ALLEGED THIS CONDUCT WAS A BREACH OF CONTRACT, THAT IT
 SHOWED BAD FAITH, AND THAT IT CONSTITUTED A REFUSAL TO BARGAIN.  AN
 AMENDED COMPLAINT WAS FILED ON NOVEMBER 11, 1978 AGAINST NATIONAL
 TREASURY EMPLOYEES UNION JOINT COUNCIL (CHAPTERS 14 AND 36), (HEREIN
 CALLED RESPONDENT).  THE AMENDED COMPLAINT CONTAINED THE SAME
 ALLEGATIONS AS IN THE ORIGINAL COMPLAINT.
 
    RESPONDENT FILED AN ANSWER ON SEPTEMBER 8, 1978 DENYING THE
 COMMISSION OF ANY UNFAIR LABOR PRACTICE.  IT ALSO RAISED SECTION 19(D)
 AS A DEFENSE OR BAR TO THIS PROCEEDING.
 
    BOTH PARTIES WERE REPRESENTED AT THE HEARING AND WERE AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
 CROSS-EXAMINE WITNESSES.  THEREAFTER BOTH PARTIES FILED BRIEFS WITH THE
 UNDERSIGNED WHICH HAVE BEEN DULY CONSIDERED.  SUBSEQUENT TO THE HEARING,
 ON AUGUST 17, 1979, COMPLAINANT FILED WITH THE UNDERSIGNED A MOTION /2/
 TO FURTHER AMEND ITS AMENDED COMPLAINT BY INCLUDING A 19(B)(1) VIOLATION
 BASED ON THE SAME CONDUCT WHICH COMPLAINANT ALLEGED WAS VIOLATIVE OF
 19(B)(6).
 
    UPON THE ENTIRE RECORD HEREIN, FROM MY OBSERVATION OF THE WITNESSES
 AND THEIR DEMEANOR, AND BASED ON ALL THE TESTIMONY AND EVIDENCE ADDUCED
 AT THE HEARING, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS AND
 RECOMMENDATIONS:
 
                             FINDINGS OF FACT
 
    1.  AT ALL TIMES MATERIAL HEREIN RESPONDENT HAS BEEN AND STILL IS THE
 EXCLUSIVE BARGAINING REPRESENTATIVE OF THE PROFESSIONAL AND
 NON-PROFESSIONAL EMPLOYEES AT THE ST. LOUIS DISTRICT, INTERNAL REVENUE
 SERVICE.  BOTH COMPLAINANT AND RESPONDENT /3/ ARE PARTIES TO A
 COLLECTIVE BARGAINING AGREEMENT COVERING THE AFORESAID UNIT OF
 EMPLOYEES.  THE SAID AGREEMENT, BY ITS TERMS, IS EFFECTIVE FROM JANUARY
 31, 1977 FOR A FOUR YEAR PERIOD.
 
    2.  THE CONTRACT BETWEEN THE PARTIES HEREIN, AS HERETOFORE MENTIONED,
 PROVIDES IN ARTICLE 14, SECTION C AS FOLLOWS:
 
    "MATERIAL WHICH DOES NOT REFLECT ON THE INTEGRITY OR MOTIVES OF ANY
 INDIVIDUALS, OTHER
 
    LABOR ORGANIZATIONS, GOVERNMENT AGENCIES, OR ACTIVITIES OF THE
 FEDERAL GOVERNMENT, IF APPROVED
 
    BY THE EMPLOYER, MAY BE POSTED OR DISTRIBUTED."
 
    3.  ON AUGUST 30, 1977 AN UNFAIR LABOR PRACTICE HEARING WAS HELD
 BEFORE AN ADMINISTRATIVE LAW JUDGE OF THE DEPARTMENT OF LABOR IN CASE
 NO. 62-487(CA), (NTEU & NTEU LOCAL 36, COMPLAINANT AND ST. LOUIS
 DISTRICT IRS, RESPONDENT).  THAT CASE INVOLVED AN ALLEGED REFUSAL BY THE
 SAID RESPONDENT EMPLOYER TO PERMIT MARIE GERULES, AN EMPLOYEE, TO HAVE A
 UNION REPRESENTATIVE PRESENT DURING A GRIEVANCE MEETING WITH SUCH
 EMPLOYEE.
 
    4.  DURING THE HEARING IN THE GERULES CASE THE PARTIES AGREED TO A
 SETTLEMENT THEREOF.  THE TRANSCRIPT IN SAID MATTER REFLECTS THAT THE
 DIRECTOR OF THE INTERNAL REVENUE SERVICE OF THE ST. LOUIS DISTRICT
 AGREED TO SEND THE UNION A LETTER STATING THAT IT WOULD NOT CONDUCT
 MEETINGS WITH EMPLOYEES, IN THE FUTURE, WITHOUT ALLOWING A UNION
 REPRESENTATIVE TO BE PRESENT. IT WAS FURTHER STIPULATED THAT THE
 AGREEMENT WOULD BE POSTED ON THE UNION'S SIDE OF THE BULLETIN BOARD.
 
    5.  THE ADMINSTRATIVE LAW JUDGE IN THE GERULES CASE REMANDED THE
 MATTER BACK TO THE REGIONAL ADMINISTRATOR FOR FURTHER ACTION.  ON
 SEPTEMBER 22, 1977 THE REGIONAL ADMINISTRATOR SENT FRANK D. FERRIS,
 NATIONAL REPRESENTATIVE OF THE NTEU, A SETTLEMENT AGREEMENT ON A DOL
 FORM, TOGETHER WITH A "NOTICE TO EMPLOYEES", PREPARED BY THE REGIONAL
 OFFICE.  BOTH DOCUMENTS CONTAINED LANGUAGE REQUIRED BY THE SAID OFFICE
 FOR ITS APPROVAL OF THE SETTLEMENT, AND THE REGIONAL ADMINISTRATOR
 DIRECTED THAT, AFTER SIGNATURES WERE AFFIXED, THE NOTICE SHOULD BE
 POSTED AS SET FORTH THEREIN.
 
    6.  UPON RECEIVING WORD FROM THE REGIONAL OFFICE RE THE SETTLEMENT
 AGREEMENT AND THE NOTICE TO BE POSTED, DAVID MURPHY, AN ATTORNEY FOR THE
 IRS, TELEPHONED FERRIS IN REGARD THERETO.  MURPHY STATED THAT THE
 EMPLOYER NEVER AGREED TO POST A NOTICE;  THE SETTLEMENT WAS NOT THE SAME
 AS AGREED TO BY THE PARTIES;  AND THE MATTER SHOULD PROCEED TO HEARING.
 AFTER SOME DISCUSSION FERRIS AGREED THAT THE CASE SHOULD BE SETTLED AS
 ORIGINALLY AGREED WITH A LETTER BEING SENT TO THE UNION, AND THAT A
 HEARING WOULD NOT BE RESCHEDULED.
 
    7.  IN ACCORDANCE WITH THE ORIGINAL AGREEMENT TO SETTLE THE GERULES
 CASE, DISTRICT DIRECTOR VOSKUIL SENT A LETTER TO DONALD E. KLAASSEN,
 PRESIDENT OF LOCAL 36 AND CHAIRMAN OF RESPONDENT COUNCIL, REAFFIRMING
 ITS INTENTION TO PERMIT A UNION OFFICIAL TO BE PRESENT WHENEVER
 GRIEVANCES ARE DISCUSSED BY MANAGEMENT WITH EMPLOYEES, AND TO NOTIFY THE
 APPROPRIATE UNION STEWARD IN ADVANCE THEREOF.
 
    8.  NATIONAL TREASURY EMPLOYEES UNION LOCAL 36 FILED A WITHDRAWAL
 REQUEST OF THE COMPLAINT IN THE GERULES CASE ON OCTOBER 13, 1977, AND
 THE SAID REQUEST WAS APPROVED BY THE REGIONAL ADMINISTRATOR ON THE SAME
 DATE.
 
    9.  ON DECEMBER 22, 1977 KLAASSEN POSTED ON THE BULLETIN BOARD OF THE
 KANSAS CITY IRS DISTRICT OFFICE A DOCTORED COPY OF THE 'NOTICE TO
 EMPLOYEES' WHICH HAD BEEN SENT BY THE REGIONAL ADMINISTRATOR.  PICTURES
 OF TWO OFFICIALS OF COMPLAINANT WERE REPRODUCED AND PUT ON THE NOTICE:
 RICHARD VOSKUIL, DISTRICT DIRECTOR OF IRS, AND EDWARD BROOKS, BRANCH
 CHIEF.  ABOVE EACH PICTURE WAS WRITTEN THE WORD "GUILTY", AND ABOVE THE
 WORDS "NOTICE TO ALL EMPLOYEES" THE UNION REPRESENTATIVE WROTE "GUILTY
 OF UNFAIR LABOR PRACTICES." KLAASSEN ALSO TAPED IN AT THE BOTTOM OF THE
 NOTICE THE DATE, "SEPTEMBER 22, 1977", THE WORDS "ST. LOUIS DISTRICT
 INTERNAL REVENUE SERVICE", AS THE AGENCY, "CULLEN E. KEOUGH", "REGIONAL
 ADMINISTRATOR", AS THE TITLE AND NAME OF THE LABOR-MANAGEMENT SERVICE
 ADMINISTRATOR OFFICIAL.  HE ALSO POSTED A SEPARATE PAPER WITH THE WORDS
 "GUILTY OF UNFAIR LABOR PRACTICES" WITH ARROWS POINTED AT THE EMPLOYER'S
 REPRESENTATIVES.
 
    10. THEREAFTER ON THE SAME DATE STEPHEN GREEN, PERSONNEL STAFF
 SPECIALIST FOR COMPLAINANT, SAW THE DOCUMENTS POSTED BY KLAASSEN ON THE
 BULLETIN BOARD.  HE TOLD THE UNION OFFICIAL THAT NO MATTER SHOULD BE
 POSTED WITHOUT APPROVAL FROM MIKE MCCARTHY, THE LABOR RELATIONS
 SPECIALIST FOR THE ST. LOUIS DISTRICT. GREEN TOOK DOWN THE DOCUMENTS
 FROM THE BULLETIN BOARD.  LATER KLAASSEN AGAIN POSTED THE SAME ITEMS,
 TOGETHER WITH THE LETTER FROM VOSKUIL TO KLAASSEN RE THE EMPLOYER'S
 INTENTION NOT TO MEET WITH EMPLOYEES TO DISCUSS GRIEVANCES UNLESS A
 UNION REPRESENTATIVE WAS PRESENT.  GREEN REMOVED THESE DOCUMENTS AFTER
 LEARNING THAT NO PERMISSION HAD BEEN GRANTED BY THE EMPLOYER TO POST
 THEM.  MOREOVER, GROUP MANAGER FRANK SCHULER GAVE KLASSEN A MEMO ON
 DECEMBER 22 WHICH DECLARED THAT KLAASSEN SHOULD NOT POST ANY MATERIAL
 WITHOUT THE APPROVAL OF MIKE MCCARTHY.
 
    11.  ON DECEMBER 23, 1977 KLAASSEN DISTRIBUTED COPIES OF THE
 AFORESAID DOCUMENTS TO EMPLOYEES BY PUTTING THEM ON THE WORK TABLES OF
 BETWEEN 25-50 INDIVIDUALS.
 
    12.  UNDER DATE OF DECEMBER 29, 1977 DISTRICT DIRECTOR VOSKUIL WROTE
 KLAASSEN A LETTER WHEREIN IT WAS STATED THAT COMPLAINANT HEREIN PROPOSED
 TO SUSPEND KLAASSEN FOR 3 DAYS BY REASON OF HIS POSTING THE DOCUMENTS ON
 DECEMBER 22.  THE EMPLOYER AVERRED THEREIN THAT THE STATEMENTS WERE
 FALSE AND MISLEADING, AND THAT KLAASSEN HAD BREACHED THE CONTRACTUAL
 CLAUSE PROHIBITING THE POSTING OF MATERIAL WITHOUT PRIOR APPROVAL.
 
    13. UNDER DATE OF FEBRUARY 16, 1979 VOSKUIL AGAIN WROTE KLAASSEN A
 LETTER WHEREIN THE SUSPENSION WAS WITHDRAWN.  FURTHER, THE SAID LETTER
 STATED IT WOULD SERVE AS A WRITTEN REPRIMAND TO KLAASSEN IN PLACE OF THE
 SUSPENSION. SUBSEQUENTLY, AFTER A GRIEVANCE WAS FILED TO PROTECT
 VOSKUIL'S ACTION, THE REPRIMAND WAS WITHDRAWN.
 
                                CONCLUSIONS
 
    APART FROM CONTENDING THAT NO VIOLATION EXISTS HEREIN, RESPONDENT
 TAKES THE POSITION THAT THIS PROCEEDING IS BARRED UNDER SECTION 19(D) OF
 THE ORDER.  IT AVERS THAT THE PROPOSED SUSPENSION OF KLAASSEN COULD HAVE
 BEEN RAISED UNDER AN APPEAL PROCEDURE-- 5CFR 752.301-- AND THUS IS NOT
 PROPERLY REVIEWABLE BY THE FEDERAL LABOR RELATIONS AUTHORITY.
 
    IT IS TRUE THAT 19(D) PRECLUDES RAISING ISSUES IN A COMPLAINT
 PROCEDURE WHICH CAN PROPERLY BE RAISED UNDER AN APPEALS PROCEDURE.  BUT
 THE PROPRIETY OF THE SUSPENSION OR REPRIMAND TO KLAASSEN, BASED ON HIS
 CONDUCT IN POSTING THE DOCTORED 'NOTICE TO EMPLOYEES', IS NOT THE ISSUE
 HEREIN.  IN THE CASE AT BAR THE COMPLAINT ALLEGES A VIOLATION OF
 19(B)(6) ON THE PART OF THE UNION.  COMPLAINANT POSES THE ISSUE AS TO
 WHETHER THE UNION REFUSED TO BARGAIN IN GOOD FAITH BY REASON OF THE
 ALLEGED MISREPRESENTATIONS CONTAINED IN THE POSTED NOTICE, AS WELL AS BY
 THE UNION'S HAVING BREACHED THE CONTRACT BETWEEN THE PARTIES.  THIS, AS
 I VIEW IT, RAISES A SUBSTANTIALLY DIFFERENT ISSUE FROM THAT WHICH
 PRESENTED ITSELF WHEN KLAASSEN WAS REPRIMANDED PERSONALLY.  THE ISSUE
 HEREIN WAS NOT SUBJECT TO AN APPEAL PROCEDURE HERETOFORE, AND HENCE I
 CONCLUDE THE PRESENT PROCEEDING IS NOT BARRED BY SECTION 19(D).  SEE
 FRESNO SERVICE CENTER, A/SLMR NO. 983.
 
    IN MAINTAINING THAT RESPONDENT UNION VIOLATED 19(B)(6) OF THE ORDER,
 THE COMPLAINANT MAKES TWO PRINCIPAL ARGUMENTS.  IT CONTENDS THAT BY
 POSTING A 'NOTICE TO EMPLOYEES', WHICH MISREPRESENTED THE SETTLEMENT
 BETWEEN THE PARTIES AND WAS A DEFACEMENT OF A DOL DOCUMENT, THE
 RESPONDENT SHOWED BAD FAITH.  FURTHER, THAT SUCH POSTING WITHOUT PRIOR
 MANAGEMENT APPROVAL CONSTITUTED A PATENT BREACH OF CONTRACT.
 ACCORDINGLY, IT IS ARGUED BY COMPLAINANT THAT THE UNION FAILED AND
 REFUSED TO BARGAIN IN GOOD FAITH AS REQUIRED BY THE ORDER.
 
    (1) CONCEDING THAT THERE IS NO CASE ON POINT, COMPLAINANT URGES THAT
 ATTENTION BE PAID TO THE ELECTION CASES BEFORE THE NATIONAL LABOR
 RELATIONS BOARD.  THE LATTER BODY HAS OVERTURNED ELECTIONS WHERE A UNION
 HAS ALTERED AN OFFICIAL BALLOT AND DISTRIBUTED SAME TO THE EMPLOYEES
 DURING ITS CAMPAIGN. SEE ALLIED ELECTRIC PRODUCTS, INC., 34 LRRM 1348.
 MOREOVER, COMPLAINANT INSISTS THAT THE FEDERAL LABOR RELATIONS
 AUTHORITY, LIKE THE BOARD, SHOULD NOT ALLOW ITS OFFICIAL DOCUMENTS TO BE
 MISUSED AND THAT IT SHOULD GUARD AGAINST THE ABUSE OF ITS PRESTIGE.
 THERE SHOULD BE NO DIFFERENCE, IT IS ARGUED, BETWEEN THE INSTANT CASE
 AND THE ELECTION CASES DECIDED BY THE BOARD.
 
    ALTHOUGH THIS MAY WELL BE A CASE OF FIRST IMPRESSION, AS COMPLAINANT
 MAINTAINS, I DO NOT AGREE THAT THE CONDUCT OF RESPONDENT CAN BE PROPERLY
 DEEMED AN UNFAIR LABOR PRACTICE UNDER THE ORDER.  CASE CITED BY
 COMPLAINANT INVOLVE OBJECTIONS TO AN ELECTION, WHICH MAY WELL BE
 CONCERNED WITH CONDUCT THAT FALLS SHORT OF BEING AN UNFAIR LABOR
 PRACTICE UNDER THE NATIONAL LABOR RELATIONS ACT.  CERTAIN MISCONDUCT BY
 EITHER PARTY MAY WARRANT SETTING ASIDE AN ELECTION. MISREPRESENTATIONS
 OR MISLEADING STATEMENTS COULD WELL ENCROACH UPON THE FAIR ELECTION
 PROCESS IN EITHER THE PRIVATE OR PUBLIC SECTOR. BUT IT DOES NOT FOLLOW
 THAT SUCH REPRESENTATIONS OR STATEMENTS CONSTITUTE UNFAIR LABOR
 PRACTICES.  I DO NOT VIEW CONDUCT WHICH JUSTIFIES SETTING ASIDE AN
 ELECTION TO BE EQUATABLE WITH AN UNFAIR LABOR PRACTICE IN EITHER SECTOR.
 
    IT IS ALSO TRUE THAT THE AUTHORITY MUST ZEALOUSLY GUARD AGAINST ANY
 MISUSE OF ITS PROCESSES.  THERE MAY WELL BE SANCTIONS WHICH SHOULD BE
 IMPOSED UPON ANY PARTY WHO HAS ALTERED OFFICIAL DOCUMENTS.  IT DOES NOT
 APPEAR, HOWEVER, THAT ABUSE OF OFFICIAL PROCESS /4/ IS WITHIN THE
 PARAMETER OF THE UNFAIR LABOR PRACTICES DEFINED IN SECTION 19 OF THE
 ORDER.  WITH SPECIFIC REFERENCE TO 19(B)(6), I CANNOT CONCLUDE THAT A
 REFUSAL TO BARGAIN ENCOMPASSES POSTING OF A NOTICE BY THE UNION, ALBEIT
 A DOCUMENT WHICH IS ALTERED OR DEFACED.  A FAILURE TO MEET OR CONFER
 CONNOTES A REFUSAL TO ENGAGE IN COLLECTIVE BARGAINING, AND I DO NOT
 AGREE WITH COMPLAINANT THAT THE UNION'S CONDUCT IN RESPECT TO THE
 POSTING HEREIN IS TANTAMOUNT TO A REFUSAL TO BARGAIN.  COMPLAINANT
 INSISTS THAT A FINDING OF AN UNFAIR LABOR PRACTICE IS REQUIRED TO
 DISSUADE ANY PARTY FROM TAKING ACTION SIMILAR TO THAT WHICH OCCURRED IN
 THIS CASE.  WHILE IT MAY BE FOUND THAT THE POSTING OF THE NOTICE BY THE
 UNION WAS IMPROPER UNDER THE CIRCUMSTANCES, I FIND IT DIFFICULT TO
 DENOTE THAT SUCH CONDUCT AMOUNTS TO A REFUSAL TO MEET AND CONFER WITH
 THE EMPLOYER.  EVEN THOUGH BAD FAITH MIGHT BE INFERRED FROM RESPONDENT'S
 ACTIONS, IT CANNOT BE SAID THAT THE BARGAINING REPRESENTATIVE SPURNED
 ITS OBLIGATION TO DEAL WITH COMPLAINANT.
 
    (2) COMPLAINANT CONTENDS THAT THE UNION HEREIN BREACHED ARTICLE 14,
 SECTION C OF THE AGREEMENT BETWEEN THE PARTIES BY NOT OBTAINING
 APPROVAL, AS REQUIRED, TO POST THE NOTICE ON THE BULLETIN BOARD. IT
 MAINTAINS THAT SUCH CLEAR CONTRAVENTION OF THE CONTRACT IS A
 MODIFICATION THEREOF, AND, UNDER THE CASES DECIDED BY THE ASSISTANT
 SECRETARY, IS A REFUSAL TO BARGAIN UNDER 19(B)(6) OF THE ORDER.
 
    WHILE IT IS TRUE THAT A UNILATERAL BREACH OF CONTRACT MAY CONSTITUTE
 AN UNFAIR LABOR PRACTICE, SUCH CONDUCT MUST BE A FLAGRANT AND DELIBERATE
 BREACH OF THE AGREEMENT SO AS TO AMOUNT TO A UNILATERAL MODIFICATION
 THEREOF.  HOWEVER, NOT EVERY CONTRACT VIOLATION CONSTITUTES AN UNFAIR
 LABOR PRACTICE.  A SIMPLE BREACH OF THE AGREEMENT, NOT BEING FLAGRANT OR
 DELIBERATE, WOULD NOT RUN AFOUL OF THE ORDER.  THE PROPER FORUM FOR
 SETTLING SUCH A DISPUTE LIES WITHIN THE GRIEVANCE MACHINERY OF THE
 NEGOTIATED AGREEMENT.  DEPARTMENT OF THE AIR FORCE, 4392ND AEROSPACE
 SUPPORT GROUP, VANDENBERG AFB, CALIFORNIA, A/SLMR NO.935;  SOCIAL
 SECURITY ADMINISTRATION, GREAT LAKES PROGRAM CENTER, CHICAGO, ILLINOIS,
 A/SLMR NO. 804.
 
    IT CANNOT BE GAINSAID THAT THE POSTING OF THE DOCUMENT HEREIN,
 WITHOUT THE APPROVAL OF THE ACTIVITY, WAS A BREACH OF ARTICLE 14,
 SECTION C OF THE CONTRACT.  NEVERTHELESS, I AM NOT PERSUADED THAT THIS
 PARTICULAR BREACH WAS SO FLAGRANT AS TO CONSTITUTE A MODIFICATION OF THE
 CONTRACT.  IT DOES NOT APPEAR TO THE UNDERSIGNED THAT THE UNION WAS
 INTENT UPON CHANGING THE CITED PROVISION OF THE AGREEMENT. NEITHER AN I
 CONVINCED THAT RESPONDENT'S ACTION IN POSTING THE NOTICE REFLECTED AN
 INTENTION TO COMPLETELY DISREGARD THAT PROVISION WITH RESPECT TO POSTING
 OR DISTRIBUTING ALL MATERIAL.  THE BREACH HEREIN WAS NOT, IN MY OPINION,
 OF SUFFICIENT MAGNITUDE TO BE LABELED AS FLAGRANT. MOREOVER, STANDING
 ALONE, IT DOES NOT WARRANT FINDING THAT IT CONSTITUTED A UNILATERAL
 CHANGE IN VIOLATION OF THE ORDER.
 
    ACCORDINGLY, AND IN VIEW OF THE FOREGOING, I CONCLUDE THAT THE
 POSTING OF THE DOL "NOTICE TO EMPLOYEES" BY RESPONDENT IN ITS ALTERED
 FORM DID NOT CONSTITUTE A BAD FAITH REFUSAL TO BARGAIN UNDER SECTION
 19(B)(6).  FURTHER, I CONCLUDE THAT THE POSTING IN VIOLATION OF THE
 AGREEMENT WAS A SINGLE BREACH THEREOF INSUFFICIENT TO CONSTITUTE A
 UNILATERAL MODIFICATION OF THE SAID AGREEMENT.
 
                              RECOMMENDATION
 
    IT HAVING BEEN FOUND THAT RESPONDENT DID NOT VIOLATE SECTION 19(B)(6)
 OF THE ORDER, IT IS HEREBY RECOMMENDED THAT THE AMENDED COMPLAINT HEREIN
 BE DISMISSED IN ITS ENTIRETY.
 
                              WILLIAM NAIMARK
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  SEPTEMBER 18, 1979
 
    WASHINGTON, D.C.
 
                               SERVICE SHEET
 
    "RECOMMENDED DECISION AND ORDER" ISSUED BY ADMINISTRATIVE LAW JUDGE
 WILLIAM NAIMARK WAS SENT TO THE FOLLOWING PERSONS BY CERTIFIED MAIL:
 
                                LINDA ENOCH
 
    SUSAN D. MCCLUSKEY, ESQ.
 
    ASSISTANT COUNSEL
 
    NATIONAL TREASURY EMPLOYEES UNION
 
    1730 K STREET, NW., SUITE 1101
 
    WASHINGTON, D.C.  20006
 
    ROGER P. KAPLAN, ESQ.
 
    INTERNAL REVENUE SERVICE
 
    1111 CONSTITUTION AVENUE, NW.
 
    ROOM 4562
 
    WASHINGTON, D.C.  20224
 
    REGULAR MAIL:
 
    MR. ROBERT TOBIAS
 
    GENERAL COUNSEL
 
    NATIONAL TREASURY EMPLOYEES UNION
 
    1730 K STREET, NW.
 
    WASHINGTON, D.C. 20006
 
    ASSISTANT DIRECTOR
 
    LABOR-MANAGEMENT RELATIONS
 
    U.S. OFFICE OF PERSONNEL MANAGEMENT
 
    1900 E STREET NW.
 
    WASHINGTON, D.C.  20415
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    1900 E STREET, NW., RM. 7469
 
    WASHINGTON, D.C.  20424
 
    ONE COPY TO EACH REGIONAL DIRECTOR
 
    /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/ THE MOTION IS DENIED.  AN ALLEGATION OF INTERFERENCE, RESTRAINT,
 OR COERCION IS A NEW CAUSE OF ACTION NOT SET FORTH IN THE AMENDED OR
 ORIGINAL COMPLAINT.  IT IS NOT DERIVATIVE FROM THE 19(B)(6) ALLEGATION
 INVOLVING AN ALLEGED REFUSAL TO BARGAIN.  HENCE, ALTHOUGH IT ENCOMPASSES
 THE SAME FACTS AS SET FORTH BY COMPLAINANT, THE 19(B)(1) ALLEGATION
 DEALS WITH A DIFFERENT VIOLATION OF THE ORDER. AS SUCH, IT MUST BE
 SEPARATELY AND AFFIRMATIVELY ALLEGED IN THE COMPLAINT AS A DISTINCT
 CAUSE OF ACTION.  SEE U.S. AIR FORCE, 300TH COMBAT SUPPORT GROUP,
 PLATTSBURGH AIR FORCE BASE, N.Y. A/SLMR NO. 557.  HOWEVER, TO PERMIT
 COMPLAINANT TO AMEND ITS COMPLAINT AFTER THE HEARING TO INCLUDE SUCH
 CAUSE OF ACTION WOULD BE MANIFESTLY UNFAIR TO RESPONDENT.  THE LATTER
 HAD NO OPPORTUNITY TO DEFEND AGAINST THAT CAUSE AT THE HEARING, NOR WAS
 RESPONDENT PUT ON NOTICE THAT IT WOULD BE AN ISSUE THEREAT.
 
    /3/ THE JOINT COUNCIL IS COMPOSED OF CHAPTERS 14 AND 36.
 
    /4/ THE ISSUE AS TO WHE