U.S. Nuclear Regulatory Commission (Respondent) and National Treasury Employees Union (Charging Party) 

 



[ v06 p18 ]
06:0018(9)CA
The decision of the Authority follows:


 6 FLRA No. 9
 
 U.S. NUCLEAR REGULATORY COMMISSION
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 3-CA-263
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION AND ORDER
 IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT
 ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND
 RECOMMENDING THAT THE COMPLAINT BE DISMISSED.  THEREAFTER, BOTH THE
 CHARGING PARTY AND THE GENERAL COUNSEL FILED EXCEPTIONS TO THE
 ADMINISTRATIVE LAW JUDGE'S DECISION AND ORDER, AND THE RESPONDENT FILED
 AN OPPOSITION TO SUCH EXCEPTIONS AND A CROSS-EXCEPTION.  /1/
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
 OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
 COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE
 JUDGE'S DECISION AND ORDER AND THE ENTIRE RECORD, THE AUTHORITY HEREBY
 ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS.
 
    THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1)
 AND (5) OF THE STATUTE BY UNILATERALLY CHANGING A PAST PRACTICE OF
 ALLOWING THE NATIONAL TREASURY EMPLOYEES UNION (NTEU), THE CHARGING
 PARTY HEREIN, UNRESTRICTED USE OF BULLETIN BOARDS.  THE SPECIFIC ACTION
 GIVING RISE TO THE COMPLAINT WAS THE RESPONDENT'S REMOVAL OF AN NTEU
 POSTED ITEM FROM BULLETIN BOARDS WITHOUT FIRST BARGAINING WITH NTEU
 ABOUT THE REMOVAL.
 
    THE FACTS CAN BE BRIEFLY STATED.  CERTAIN OF RESPONDENT'S EMPLOYEES
 WERE REPRESENTED BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
 (AFGE), AND THE NEGOTIATED AGREEMENT GAVE AFGE THE RIGHT TO USE BULLETIN
 BOARDS EXCEPT FOR THE POSTING OF ANY MATERIAL "WHICH REFLECTS ADVERSELY
 ON INDIVIDUALS, ORGANIZATIONS OR ACTIVITIES OF THE FEDERAL GOVERNMENT."
 THE NTEU SUBSEQUENTLY CHALLENGED AFGE'S STATUS AS THE NEGOTIATING
 REPRESENTATIVE BY FILING A TIMELY PETITION WITH THE AUTHORITY.  DURING
 THE PRE-ELECTION PERIOD (MAY 2, 1978 TO JUNE 6, 1978), NTEU WAS ALLOWED
 TO USE THE BULLETIN BOARDS TO THE SAME EXTENT AS AFGE.
 
    ON NOVEMBER 17, 1978, NTEU WAS CERTIFIED AS THE EXCLUSIVE
 REPRESENTATIVE AND THEREAFTER THE NEGOTIATED AGREEMENT BETWEEN
 RESPONDENT AND AFGE TERMINATED.  AS OF THE DATE OF THE HEARING HEREIN,
 RESPONDENT AND NTEU HAD NOT NEGOTIATED A NEW AGREEMENT.  FROM MAY 2,
 1978 TO APRIL 25, 1979, NTEU UTILIZED THE BULLETIN BOARDS WITHOUT
 INCIDENT.  HOWEVER, ON MARY 25, 1979, RESPONDENT REMOVED MATERIAL POSTED
 BY NTEU, CITING THE RESTRICTION NOTED ABOVE WHICH HAD BEEN CONTAINED IN
 THE NEGOTIATED AGREEMENT BETWEEN RESPONDENT AND AFGE.  IT WAS THIS
 ACTION WHICH RESULTED IN THE FILING OF THE CHARGE AND THE ISSUANCE OF
 THE COMPLAINT.
 
    THE JUDGE CONCLUDED THAT RESPONDENT DID NOT VIOLATE SECTION
 7116(A)(1) AND (5) OF THE STATUTE BY UNILATERALLY CHANGING THE ALLEGED
 PAST PRACTICE OF ALLOWING NTEU UNRESTRICTED USE OF BULLETIN BOARDS.  IN
 ESSENCE, HE FOUND THAT THE TERMS OF THE NEGOTIATED AGREEMENT BETWEEN
 RESPONDENT AND AFGE ESTABLISHED A CONDITION OF EMPLOYMENT WHICH,
 FOLLOWING THE CERTIFICATION OF NTEU, CONTINUED AS AN ESTABLISHED
 PRACTICE.  HE FOUND FURTHER THAT AT NO TIME DID RESPONDENT EITHER MODIFY
 OR WAIVE THE NEGOTIATED RESTRICTION ON THE RIGHT TO USE BULLETIN BOARDS.
 
    IN AGREEMENT WITH THE JUDGE'S FINDINGS AND CONCLUSION, THE AUTHORITY
 HOLDS THAT THE CLAUSE RELATING TO BULLETIN BOARDS IN THE EXPIRED
 AGREEMENT CREATED A CONDITION OF EMPLOYMENT WHICH REMAINS BINDING IN ITS
 ENTIRETY DESPITE THE AGREEMENT'S EXPIRATION AND THE CHANGE OF EXCLUSIVE
 REPRESENTATIVE.  IN THE AUTHORITY'S OPINION, THE PURPOSES AND POLICIES
 OF THE STATUTE ARE BEST EFFECTUATED BY A REQUIREMENT THAT EXISTING
 PERSONNEL POLICIES, PRACTICES, AND MATTERS AFFECTING WORKING CONDITIONS
 CONTINUE, TO THE MAXIMUM EXTENT POSSIBLE, UPON THE EXPIRATION OF A
 NEGOTIATED AGREEMENT, ABSENT AN EXPRESS AGREEMENT TO THE CONTRARY OR
 UNLESS MODIFIED IN A MANNER CONSISTENT WITH THE STATUTE.  SUCH A RESULT
 FOSTERS STABILITY IN FEDERAL LABOR-MANAGEMENT RELATIONS, WHICH IS AN
 UNDERLYING PURPOSE OF THE STATUTE.  SEE DEPARTMENT OF DEFENSE,
 DEPARTMENT OF THE NAVY, NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY, 4
 FLRA NO. 100(1980);  AND DEPARTMENT OF THE AIR FORCE, 35TH COMBAT
 SUPPORT GROUP (TAC), GEORGE AIR FORCE BASE, CALIFORNIA, 4 FLRA NO.
 5(1980).  WE SEE NO DISTINCTION IN THE CIRCUMSTANCES OF THIS CASE WHERE
 THERE HAS BEEN A CHANGE IN THE EXCLUSIVE REPRESENTATIVE SINCE THE
 EXPIRATION OF THE AGREEMENT.  THE STABILITY OF THE NEW BARGAINING
 RELATIONSHIP IS ENHANCED BY A REQUIRED MAINTENANCE OF EXISTING PERSONNEL
 POLICIES AND PRACTICES, AND MATTERS AFFECTING WORKING CONDITIONS PENDING
 THE NEGOTIATION OF A NEW AGREEMENT.
 
    FURTHER, IN AGREEMENT WITH THE JUDGE, THE AUTHORITY FINDS THAT THE
 RESPONDENT HAS NOT WAIVED THE NEGOTIATED RESTRICTIONS UPON BULLETIN
 BOARD USAGE.  IN THIS REGARD IT IS NOTED PARTICULARLY THAT THE GENERAL
 COUNSEL FAILED TO SHOW THAT ANY MANAGER AT ANY RELEVANT TIME SAW OR
 RECEIVED COPIES OF DOCUMENTS KNOWN TO HAVE BEEN POSTED ON NTEU BULLETIN
 BOARD SPACE WHICH CONTAINED LANGUAGE FALLING WITHIN THE RESTRICTIVE
 PROVISIONS OF THE ESTABLISHED PRACTICE.  FINALLY, IT IS THE AUTHORITY'S
 VIEW THAT ANY TERMS OF A PRE-ELECTION CONSENT AGREEMENT ARE FOR THE
 LIMITED PURPOSE OF REGULATING THE CONDUCT OF THE PARTIES IN THE ELECTION
 PROCESS AND DO NOT ESTABLISH CONDITIONS OF EMPLOYMENT FOR BARGAINING
 UNIT EMPLOYEES WHICH CONTINUE FOLLOWING THE ELECTION.  THEREFORE, THE
 AUTHORITY FINDS IT UNNECESSARY TO DETERMINE WHETHER THE CONSENT
 AGREEMENT WAS AT VARIANCE WITH THE CONTRACTUALLY ESTABLISHED CONDITIONS
 REGARDING USE OF BULLETIN BOARDS.  ACCORDINGLY, THE COMPLAINT HEREIN
 SHALL BE DISMISSED.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 3-CA-263 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JUNE 3, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 -------------------- ALJ DECISION FOLLOWS --------------------
 
 
 
    LEE MINGLEDORFF, ESQUIRE
 
                          FOR THE GENERAL COUNSEL
 
    BARBARA J. COLLINS, ESQUIRE
 
                          FOR THE CHARGING PARTY
 
    DENNIS C. DAMBLY, ESQUIRE
 
    BRUCE A. BERSON, ESQUIRE
 
                            FOR THE RESPONDENT
 
    BEFORE:  LOUIS SCALZO
 
                         ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           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., (HEREINAFTER CALLED "THE STATUTE")
 AND THE RULES AND REGULATIONS ISSUED THEREUNDER.
 
    ON DECEMBER 27, 1979, A COMPLAINT WAS ISSUED AND SERVED BY THE
 REGIONAL DIRECTOR, REGION III, FEDERAL LABOR RELATIONS AUTHORITY,
 WASHINGTON, D.C., AGAINST THE UNITED STATES NUCLEAR REGULATORY
 COMMISSION (HEREINAFTER CALLED "NRC," "RESPONDENT" OR "MANAGEMENT") ON
 BEHALF OF THE NATIONAL TREASURY EMPLOYEES UNION (HEREINAFTER CALLED
 "NTEU" OR "UNION").
 
    THE COMPLAINT SETS FORTH ALLEGATIONS THAT ON OR ABOUT APRIL 25, 1979,
 AND THEREAFTER, THE RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (5) OF
 THE STATUTE, BY FAILING AND REFUSING TO BARGAIN IN GOOD FAITH WITH THE
 NTEU, AND BY UNILATERALLY CHANGING EXISTING CONDITIONS OF EMPLOYMENT AND
 PAST PRACTICE RELATING TO THE NTEU'S USE OF BULLETIN BOARD SPACE MADE
 AVAILABLE TO THE NTEU BY THE RESPONDENT.  SPECIFIC CONDUCT ALLEGED TO
 HAVE GIVEN RISE TO THESE VIOLATIONS RELATED TO THE RESPONDENT'S REMOVAL
 OF A COPY OF A NEWSPAPER ARTICLE FROM A NTEU BULLETIN BOARD ON APRIL 25,
 1979, WITHOUT FIRST FURNISHING THE NTEU WITH NOTICE, AND WITHOUT
 PROVIDING AN OPPORTUNITY TO BARGAIN CONCERNING RESPONDENT'S DECISION TO
 EXERCISE CENSORSHIP OF NTEU'S USE OF BULLETIN BOARD SPACE.
 
    COUNSEL FOR THE GENERAL COUNSEL CONTENDED THAT THE ACT OF REMOVING
 THE NTEU POSTING CONTRAVENED A MAY 2, 1978 AGREEMENT WHEREIN THE
 RESPONDENT PROMISED TO GIVE NTEU UNRESTRICTED USE OF BULLETIN BOARDS IN
 CONNECTION WITH A SCHEDULED JUNE 6, 1978 ELECTION CAMPAIGN PRECIPITATED
 BY A REPRESENTATION PETITION FILED BY NTEU TO CONTEST A PREDECESSOR
 UNION'S STATUS AS EXCLUSIVE BARGAINING REPRESENTATIVE;  THAT THE
 RESPONDENT AND NTEU, THROUGH A COURSE OF CONDUCT FROM MAY 2, 1978 TO
 APRIL 25, 1979, DEVELOPED A PAST PRACTICE OF PERMITTING THE UNRESTRICTED
 USE OF BULLETIN BOARD SPACE, AND THAT REMOVAL OF THE POSTING ON APRIL
 25, 1979, VIOLATED SUCH PAST PRACTICE;  /2/ THAT RESPONDENT'S ACTION
 CONSTITUTED A UNILATERAL CLARIFICATION OF WHAT PREVIOUSLY HAD BEEN AN
 AMBIGUOUS, IRREGULARLY ENFORCED POLICY;  AND LASTLY, THAT THE ACT OF
 REMOVING THE POSTING, WITHOUT RESORTING TO A DISPUTE RESOLUTION
 PROCEDURE IN AN EXPIRED COLLECTIVE BARGAINING AGREEMENT CONSTITUTED
 UNILATERAL IMPOSITION OF A NEW TERM AND CONDITION OF EMPLOYMENT.
 
    COUNSEL REPRESENTING THE RESPONDENT ARGUED THAT THE GENERAL COUNSEL
 FAILED TO SUSTAIN THE BURDEN OF PROVING, BY A PREPONDERANCE OF THE
 EVIDENCE AS REQUIRED BY SECTION 7118(A)(7) OF THE STATUTE AND SECTION
 2423.18 OF THE REGULATIONS, 5 C.F.R. 2423.18, THAT THE RESPONDENT
 COMMITTED UNFAIR LABOR PRACTICES AS ALLEGED IN THE COMPLAINT;  THAT
 PRIOR TO REMOVAL OF THE POSTING THE PARTIES DID NOT ENTER INTO AN
 AGREEMENT WHEREBY THE NTEU WOULD BE ENTITLED TO UNRESTRICTED USE OF
 CERTAIN BULLETIN BOARDS;  THAT A PAST PRACTICE OF ALLOWING UNRESTRICTED
 USE OF BULLETIN BOARDS BY NTEU DID NOT IN FACT EXIST;  THAT THE REMOVAL
 OF THE POSTING WAS IN ACCORDANCE WITH RESTRICTIVE PROVISIONS CONTAINED
 IN A COLLECTIVE BARGAINING AGREEMENT THAT GOVERNED THE LABOR RELATIONS
 OF THE RESPONDENT AND NTEU;  AND THAT THE RESPONDENT DID NOT, AT ANY
 TIME, WAIVE THE RESTRICTIVE PROVISIONS CONTAINED IN THE COLLECTIVE
 BARGAINING AGREEMENT.
 
                             FINDINGS OF FACT
 
    STIPULATED FACTS
 
    THE FOLLOWING FACTS STIPULATED BY THE PARTIES, AND SUPPORTED BY THE
 RECORD, ARE ACCEPTED AS TRUE:
 
    1.  THAT IN DECEMBER OF 1977, THE NTEU FILED A REPRESENTATION
 PETITION TO CONTEST THE
 
    STATUS OF LOCAL 2195, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
 (AFGE), AS THE EXCLUSIVE
 
    REPRESENTATIVE OF ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF
 THE HEADQUARTERS, UNITED
 
    STATES NUCLEAR REGULATORY COMMISSION WHOSE REGULAR DUTY STATION IS
 LOCATED IN THE BETHESDA,
 
    MARYLAND-WASHINGTON, D.C. METROPOLITAN AREA, EXCLUDING ALL
 SUPERVISORS, MANAGEMENT OFFICIALS,
 
    EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
 CLERICAL CAPACITY, GUARDS,
 
    CONFIDENTIAL EMPLOYEES, AND TEMPORARY EMPLOYEES ON APPOINTMENTS NOT
 TO EXCEED 90 DAYS AND WITH
 
    NO REASONABLE EXPECTANCY OF CONTINUOUS EMPLOYMENT;  AND THAT THE
 PROCEEDING CULMINATED IN
 
    NTEU'S CERTIFICATION AS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF
 THE UNIT DESCRIBED.
 
    2.  THAT ON JUNE 6, 1978, A REPRESENTATION ELECTION WAS HELD UNDER
 THE SUPERVISION OF THE
 
    ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS, AND THE
 NTEU RECEIVED A MAJORITY
 
    VOTE.
 
    3.  THAT ON OR ABOUT NOVEMBER 17, 1978, THE NTEU WAS CERTIFIED AS THE
 EXCLUSIVE BARGAINING
 
    REPRESENTATIVE OF THE UNIT DESCRIBED.  /3/
 
    4.  THAT THE RESPONDENT HAS, SINCE CERTIFICATION, RECOGNIZED NTEU AS
 THE EXCLUSIVE
 
    REPRESENTATIVE OF THE EMPLOYEES IN THE UNIT REFERRED TO, AND THAT THE
 UNIT IS APPROPRIATE FOR
 
    COLLECTIVE BARGAINING PURPOSES.
 
    5.  THAT AS OF JANUARY 30 AND 31, 1980, THE DATES ON WHICH HEARING
 OCCURRED, THE PARTIES
 
    WERE ENGAGED IN NEGOTIATIONS FOR THE PURPOSE OF REACHING A COLLECTIVE
 BARGAINING AGREEMENT.
 
    6.  THAT AT ALL TIMES MATERIAL, MR. N. E. BENTSON OCCUPIED THE
 POSITION OF CHIEF, LABOR
 
    MANAGEMENT AND EMPLOYEE RELATIONS BRANCH, UNITED STATES NUCLEAR
 REGULATORY COMMISSION, AND WAS
 
    A SUPERVISOR OR MANAGEMENT OFFICIAL WITHIN THE MEANING OF SECTION
 7103(A)(10) AND (11) OF THE
 
    STATUTE;  AND WAS AN AGENT OF THE RESPONDENT AT ITS BETHESDA,
 MARYLAND LOCATION.
 
    7.  THAT ON APRIL 25, 1979, MR. BENTSON RECEIVED A TELEPHONE CALL
 FROM A MANAGEMENT
 
    OFFICIAL OF THE RESPONDENT WHO OBJECTED TO A NEWSPAPER ARTICLE
 REPRODUCED ON NTEU LETTERHEAD,
 
    AND POSTED BY THE NTEU ON NTEU BULLETIN BOARD SPACE LOCATED ON THE
 FOURTH FLOOR OF THE
 
    RESPONDENT'S EAST-WEST TOWERS BUILDING.
 
    8.  THAT ON APRIL 25, 1979, AFTER REVIEWING A COPY OF THE THE
 ARTICLE, MR. BENTSON
 
    INSTRUCTED THE MANAGEMENT OFFICIAL TO REMOVE THE MENTIONED ARTICLE
 FROM THE BULLETIN BOARD.
 
    COLLECTIVE BARGAINING AGREEMENT
 
    THE RECORD DISCLOSED THAT REMOVAL OF THE ARTICLE BY A REPRESENTATIVE
 OF THE RESPONDENT WAS PREDICATED UPON POLICY EXPRESSED IN THE PROVISIONS
 OF AN EXPIRED COLLECTIVE BARGAINING AGREEMENT ENTERED INTO BY THE
 RESPONDENT AND AFGE LOCAL 2195 IN MARCH OF 1977 (JOINT EXHIBIT 3).  /4/
 PART VI, ARTICLE F, SECTION 4 OF THE AGREEMENT PROVIDED THE FOLLOWING
 WITH RESPECT TO THE USE OF BULLETIN BOARDS:
 
    SECTION 4.  A SPACE NOT LESS THAN 18 INCHES BY 18 INCHES (18" X 18")
 WILL BE PROVIDED FOR
 
    UNION USE ON GENERAL PURPOSE BULLETIN BOARDS, WHICH ARE CONTROLLED BY
 (SIC) ADMINISTRATIVE
 
    OPERATIONS DIVISION.  THESE BOARDS ARE TO BE LOCATED IN AREAS
 DESIGNATED BY MANAGEMENT.  THE
 
    UNION IS RESPONSIBLE FOR ALL MATERIAL IT POSTS IN THE DESIGNATED
 SPACE ON THE BOARDS AND FOR
 
    MAINTAINING THE SPACE IN AN ORDERLY CONDITION.  LITERATURE POSTED
 SHALL NOT CONTAIN ITEMS
 
    RELATED TO PARTISAN POLITICAL MATTERS OR INFORMATION WHICH REFLECTS
 ADVERSELY ON INDIVIDUALS,
 
    ORGANIZATIONS, OR ACTIVITIES OF THE FEDERAL GOVERNMENT.  POSTING AND
 MAINTENANCE OF UNION
 
    POSTED MATERIAL WILL BE PERFORMED DURING NON-DUTY HOURS ONLY.
 
    MR. BENTSON RELIED UPON THE UNDERLINED LANGUAGE QUOTED AS A BASIS FOR
 REMONSTRATING THAT THE ARTICLE WAS "OBJECTIONABLE BECAUSE IT STATES THAT
 THE NRC LIES" (TR.  48, 49-50, JOINT EXHIBIT 2).  /5/
 
    AS NOTED THE NTEU FILED A REPRESENTATION PETITION IN DECEMBER OF
 1977.  AN NTEU ORGANIZING CAMPAIGN WAS COMMENCED THEREAFTER TO MARSHAL
 THE NECESSARY SHOWING OF INTEREST TO UTILIZE AS A BASIS FOR A
 REPRESENTATION ELECTION.  FOLLOWING NTEU'S SUCCESS IN THE REPRESENTATION
 ELECTION, THE RESULTS OF THE ELECTION WERE CHALLENGED BY AFGE LOCAL
 2195.  ON NOVEMBER 17, 1978, THE ASSISTANT SECRETARY OF LABOR FOR LABOR
 MANAGEMENT RELATIONS CERTIFIED THE NTEU AS THE EXCLUSIVE BARGAINING
 REPRESENTATIVE.  DURING THE PERIOD PRIOR TO CERTIFICATION, LOCAL 2195
 CONTINUED IN THE ROLE OF EXCLUSIVE REPRESENTATIVE.
 
    ALTHOUGH NOT AUTHORIZED TO REPRESENT NRC EMPLOYEES, NTEU
 REPRESENTATIVES DID PROVIDE INFORMATION AND GUIDANCE DURING THE PERIOD
 INTERVENING BETWEEN THE REPRESENTATION ELECTION AND NTEU CERTIFICATION
 (TR. 105, 120).  /6/
 
    MAY 2, 1978 MEETING
 
    THE RECORD DISCLOSED THAT A DEPARTMENT OF LABOR REPRESENTATIVE WAS
 ASSIGNED TO CONDUCT THE REPRESENTATION ELECTION, AND THAT ON MAY 2,
 1978, THE REPRESENTATIVE CONVENED A MEETING ATTENDED BY INDIVIDUALS
 REPRESENTING NTEU, AFGE, AND THE RESPONDENT.  THE MEETING WAS SCHEDULED
 FOR THE PURPOSE OF REACHING A CONSENT ELECTION AGREEMENT PRESCRIBING THE
 GROUND RULES FOR THE ELECTION CAMPAIGN, AND TO DETERMINE HOW THE
 ELECTION WOULD BE CONDUCTED.  THE REPRESENTATIVE DISCUSSED THE
 RESPONSIBILITY OF THE NRC WITH RESPECT TO THE STATUS OF NTEU, DEFINED
 THE TERM "EQUIVALENT STATUS," STRESSED THAT NTEU HAD "EQUIVALENT STATUS"
 WITH AFGE, AND NOTED THAT WITH RESPECT TO ACCESS TO EMPLOYEES IN THE
 BARGAINING UNIT, NTEU WAS ENTITLED TO THE SAME PRIVILEGES THAT AFGE WAS
 THEN ENJOYING (TR. 274-276, 307, 317-318, 332-334).  THE NRC AGREED TO
 PROVIDE NTEU WITH THE RIGHTS AND PRIVILEGES THEN ENJOYED BY AFGE (TR.
 307).  SPECIFIC REFERENCE WAS MADE TO THE COLLECTIVE BARGAINING
 AGREEMENT (TR. 333).
 
    A KEY NTEU REPRESENTATIVE IN ATTENDANCE AT THE MEETING ACKNOWLEDGED
 THAT "EQUIVALENT STATUS" WAS DISCUSSED AND AGREED TO, AND FURTHER THAT
 NTEU REQUESTED NRC TO PROVIDE EQUIVALENT BULLETIN BOARD SPACE (TR. 99,
 109).  IT WAS ESTABLISHED THAT THE DEPARTMENT OF LABOR REPRESENTATIVE
 STATED THAT, "IF YOU'RE GIVING AFGE CERTAIN TREATMENT ON THE BULLETIN
 BOARDS, NTEU HAS TO BE GIVEN THE SAME THING." THE NRC AGREED TO DO SO
 (TR. 276, 307).
 
    COUNSEL FOR THE GENERAL COUNSEL RELIES HEAVILY UPON AN ALLEGED
 AGREEMENT REACHED BY NTEU, AFGE AND NRC IMMEDIATELY AFTER THE MAY 2,
 1978 MEETING OUTLINED.  IT WAS CLAIMED THAT ACCESS TO BARGAINING UNIT
 EMPLOYEES WAS THEN DISCUSSED OUT OF THE PRESENCE OF THE DEPARTMENT OF
 LABOR REPRESENTATIVE, AND THAT NTEU INFORMALLY REQUESTED ACCESS TO NRC
 BULLETIN BOARDS, THE NRC INTERNAL MAIL SYSTEM, AND PUBLIC AREAS TO
 DISTRIBUTE LITERATURE (TR. 57-58, 108).  IT WAS FURTHER ASSERTED THAT
 THE NRC DID AGREE TO GIVE ACCESS TO BULLETIN BOARDS, BUT DID NOT IMPOSE
 ANY RESTRICTIONS ON THE NATURE OF NTEU'S POSTINGS (TR. 58-59);  THAT AT
 THE SECOND MEETING THERE WAS NO DISCUSSION OF THE CONTENT OF BULLETIN
 BOARD POSTINGS (TR. 59), AND NO REFERENCE TO THE AFGE-NRC COLLECTIVE
 BARGAINING AGREEMENT (TR. 107-108).
 
    WITNESSES REPRESENTING THE RESPONDENT EITHER TAKE THE POSITION THAT
 THERE WAS BUT ONE MEETING ON MAY 2, 1978, THE ONE CONVENED BY THE
 DEPARTMENT OF LABOR, AND ATTENDED BY REPRESENTATIVES OF THE DEPARTMENT
 OF LABOR, RESPONDENT, AFGE AND NTEU (TR. 332);  OR THAT REPRESENTATIVES
 OF THE RESPONDENT, AFGE AND NTEU MERELY CHATTED FOR A PERIOD AFTER
 TERMINATION OF THE MEETING CONVENED BY THE DEPARTMENT OF LABOR (TR.
 276).  A CAREFUL REVIEW OF THE RECORD DISCLOSES THAT WHETHER THERE WAS A
 SECOND MEETING OR NOT, THERE WAS NO REPUDIATION OR CHANGE IN
 ARRANGEMENTS AND POLICY ESTABLISHED DURING THE COURSE OF THE MEETING
 CONVENED BY THE DEPARTMENT OF LABOR.  /7/ ON THE CONTRARY, THE RECORD
 ESTABLISHES THAT THE USE OF NRC FACILITIES OF NTEU WOULD BE GRANTED TO
 THE EXTENT THAT AFGE THEN ENJOYED SUCH USE UNDER THE TERMS OF THE
 COLLECTIVE BARGAINING AGREEMENT.  THE GENERAL TERMS OF THE AGREEMENT
 WERE SUMMARIZED IN A LETTER ADDRESSED TO NTEU BY NRC (GENERAL COUNSEL
 EXHIBIT 4).  THE LATTER EXHIBIT, A LETTER CONFIRMING DETAILS OF THE
 "CONSENT MEETING ON MAY 2, 1978," /8/ LISTS THE LOCATION OF BULLETIN
 BOARD SPACE TO BE MADE AVAILABLE TO NTEU.  IT INCLUDES THE FOLLOWING
 PARAGRAPH:
 
    AS OF MAY 2, 1978, EACH NRC BULLETIN BOARD WILL PROVIDE A SPACE
 APPROXIMATELY 18" X 18" FOR
 
    NTEU USE.  NTEU WILL BE RESPONSIBLE FOR ALL MATERIAL POSTED IN THE
 DESIGNATED SPACE AND FOR
 
    MAINTAINING THE SPACE IN AN ORDERLY CONDITION.  SCHEDULING OF NRC
 MEETING ROOMS SHOULD BE DONE
 
    THROUGH THIS OFFICE AND RESERVATIONS WILL BE ACCEPTED ON AN
 AVAILABILITY BASIS.
 
    THE PARAGRAPH QUOTED TRACKS PERTINENT PORTIONS OF THE COLLECTIVE
 BARGAINING AGREEMENT IN SUBSTANCE, AND CLEARLY INDICATES THE IMPOSITION
 OF NTEU RESPONSIBILITY FOR POSTINGS.  INSTEAD OF SUGGESTING AUTHORITY TO
 USE BULLETIN BOARDS WITHOUT RESTRICTIONS, THE LETTER, INSOFAR AS IT
 REFERS TO NTEU RESPONSIBILITY, SUGGESTS AN ALLUSION TO THE RESTRICTIVE
 PROVISIONS REFLECTED IN THE COLLECTIVE BARGAINING AGREEMENT.  THE LETTER
 DOES NOT EVIDENCE AN AGREEMENT AS ALLEGED, BUT TAKEN INTO CONSIDERATION
 WITH EMPHASIS PLACED UPON "EQUIVALENT STATUS" BY THE PARTIES IT TENDS TO
 CORROBORATE RESPONDENT'S INSISTENCE UPON THE APPLICABILITY OF THE
 PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT THEN IN EFFECT.
 
    CONTINUED INSISTENCE ON TERMS OF COLLECTIVE BARGAINING AGREEMENT
 
    THE RECORD REFLECTS A GENERAL PATTERN OF RESPONDENT INSISTENCE UPON
 CONTINUATION OF THE TERMS AND CONDITIONS OF EMPLOYMENT EMBODIED IN THE
 AFGE-NRC AGREEMENT BEFORE AND AFTER CERTIFICATION OF NTEU.  DURING THE
 SUMMER OF 1978, MR. BENTSON, IN A DISCUSSION WITH THE PRESIDENT OF NTEU
 CHAPTER 208, INSISTED THAT THE ARBITRATION PROVISIONS OF THE AFGE-NRC
 COLLECTIVE BARGAINING AGREEMENT WOULD BE FULLY APPLICABLE TO THE
 NTEU-NRC LABOR-MANAGEMENT RELATIONSHIP (TR.  157-158).  THIS POSITION OF
 THE RESPONDENT ALSO SURFACED AS A RESULT OF A GRIEVANCE FILED BY NTEU ON
 NOVEMBER 16, 1978, ON BEHALF OF A BARGAINING UNIT EMPLOYEE (RESPONDENT
 EXHIBIT 4).  THE GRIEVANCE, FILED UNDER A NRC GRIEVANCE PROCEDURE, WAS
 REJECTED BECAUSE THE AFGE WAS ENTITLED TO STATUS AS THE EXCLUSIVE
 BARGAINING REPRESENTATIVE THROUGH NOVEMBER 16, 1978, THE DATE ON WHICH
 THE GRIEVANCE WAS FILED.  HOWEVER, RESPONDENT ALSO STRESSED THAT THE
 GRIEVANCE PROCEDURE SET OUT IN THE AFGE-NRC AGREEMENT WOULD BE
 APPLICABLE TO GRIEVANCES FILED AFTER CERTIFICATION (RESPONDENT EXHIBIT
 5).
 
    AN UNFAIR LABOR PRACTICE CHARGE ARISING OUT OF RESPONDENT'S REFUSAL
 TO PROCESS GRIEVANCES UNDER THE NRC GRIEVANCE PROCEDURE, AND ON
 RESPONDENT'S INSISTENCE ON USE OF THE GRIEVANCE PROCEDURE SET OUT IN THE
 EXPIRED NRC-AFGE COLLECTIVE BARGAINING AGREEMENT WAS ANSWERED BY THE
 RESPONDENT IN PART BY THE FOLLOWING LANGUAGE:
 
    IT IS NRC MANAGEMENT'S VIEW THAT ON THE DATE NTEU BECAME CERTIFIED
 THE OLD AFGE CONTRACT,
 
    WHILE NOT A VALID AGREEMENT, DID REPRESENT THE PAST PRACTICES WHICH
 WERE BINDING ON THE
 
    PARTIES (NRC AND NTEU) UNTIL SUCH TIME AS A NEW LABOR AGREEMENT COULD
 BE NEGOTIATED.
 
   .          .          .          .
 
 
    WE HAVE CONSISTENTLY MADE MS. DANCH AND JAMES THOMAS, PRESIDENT OF
 THE CHAPTER, AWARE OF
 
    OUR VIEW THAT THE PRIOR LABOR AGREEMENT REPRESENTS EXISTING PAST
 PRACTICE THAT MUST BE
 
    FOLLOWED UNTIL SUCH TIME AS A NEW LABOR AGREEMENT OR INTERIM
 PROCEDURE CAN BE NEGOTIATED.  IT
 
    APPEARS THAT THE NTEU IS WILLING TO ACCEPT BENEFITS WHICH FLOWED TO
 AFGE UNDER THE OLD
 
    CONTRACT.  FOR EXAMPLE, NTEU IS USING THE SAME NUMBER OF BULLETIN
 BOARDS THAT AFGE WAS
 
    ACCORDED, THE ONLY CHANGE BEING THE SUBSTITUTION OF NTEU'S NAME FOR
 THAT OF
 
    AFGE.  ADDITIONALLY, NTEU HAS USED THE SAME NUMBER OF STEWARDS AND
 OFFICERS TO REPRESENT
 
    EMPLOYEES IN THE BARGAINING UNIT AS WAS CALLED FOR IN THE OLD
 CONTRACT.  NEITHER OF THESE
 
    QUESTIONS HAS BEEN NEGOTIATED BY NTEU, BUT RATHER, THE PAST PRACTICE
 CONTRACTUAL PROCEDURES
 
    WERE ADOPTED.  /9/
 
    ABOUT A WEEK AFTER CERTIFICATION ON NOVEMBER 17, 1978, MR. GREG
 BENOIT, AN NRC LABOR MANAGEMENT AND EMPLOYEE RELATIONS SPECIALIST MET
 WITH MR. JAMES THOMAS, PRESIDENT OF NTEU LOCAL 208 TO DISCUSS THE
 APPLICABILITY OF THE AFGE-NRC GRIEVANCE PROCEDURE TO THE NTEU-NRC
 RELATIONSHIP, AND OTHER ISSUES (TR. 319-320).  IN THE PROCESS OF
 ESTABLISHING RESPONDENT'S INSISTENCE ON THE APPLICABILITY OF PAST
 PRACTICES EVIDENCED IN THE PROVISIONS OF THE COLLECTIVE BARGAINING
 AGREEMENT, MR. BENOIT WENT THROUGH THE AFGE CONTRACT, AND READ DIRECTLY
 FROM THE CONTRACT IN ORDER TO ARTICULATE THE POLICY THAT THE RESPONDENT
 WOULD FOLLOW ON LABOR-MANAGEMENT RELATIONS ISSUES (320-322, 324,
 341-342).  MR. BENOIT READ PART VI, ARTICLE F, SECTION 4 OF THE
 COLLECTIVE BARGAINING AGREEMENT.  HE PARAPHRASED THE PORTION ABOUT THE
 BULLETIN BOARD SPACE ALLOCATED TO THE NTEU AND READ THE REST OF THE
 SECTION COMPLETELY (TR. 324).  MR. THOMAS RESPONDED BY SAYING EITHER,
 "WELL, I UNDERSTAND," (TR. 324, 322), OR "OKAY, I KNOW WE WILL STICK
 WITH ALL THIS.  WE ACCEPT IT." (TR. 345).  /10/
 
    MR. BENOIT REITERATED THIS SAME POSITION ORALLY AND IN WRITING TO MS.
 SHARYN DANCH, ASSISTANT COUNSEL, NTEU (TR. 322, 327, RESPONDENT EXHIBIT
 9).  THE POSITION OF RESPONDENT WAS REPEATED IN A DECEMBER 21, 1978
 MEMORANDUM ADDRESSED TO MR. THOMAS BY MR. MARTIN DAUGHERTY, CHIEF, LABOR
 MANAGEMENT AND EMPLOYEE RELATIONS BRANCH (RESPONDENT EXHIBIT 10).
 
    NTEU USE OF BULLETIN BOARDS
 
    AS A RESULT OF THE MAY 2, 1978 AGREEMENT THE RESPONDENT PROVIDED TO
 NTEU, RESERVED SPACE ON SOME SIXTEEN OR SEVENTEEN "OFFICIAL NRC BULLETIN
 BOARDS" (TR. 291, GENERAL COUNSEL EXHIBIT 4).  THE SAME AMOUNT OF SPACE
 ON THE SAME BULLETIN BOARDS HAD BEEN PREVIOUSLY PROVIDED TO AFGE UNDER
 THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT.  AFGE CONTINUED TO BE
 ENTITLED TO SUCH RESERVED SPACE UNTIL CERTIFICATION OF NTEU ON NOVEMBER
 17, 1978.  /11/
 
    THE NATURE OF NTEU'S USE OF OFFICIAL BULLETIN BOARD SPACE, AS WELL AS
 OTHER NRC BULLETIN BOARDS WAS DOCUMENTED IN SOME DETAIL.  GENERAL
 COUNSEL EXHIBITS 7-13, 23 AND 24 ALL REFLECT NTEU POSTINGS MADE PRIOR TO
 THE RESPONDENT'S REMOVAL OF A POSTING ON APRIL 24, 1979.  IT WAS
 ESTABLISHED THAT NTEU ENCOUNTERED NO MANAGEMENT ADMONITION OR SANCTION
 WITH RESPECT TO ANY POSTING.  COUNSEL FOR THE GENERAL COUNSEL ARGUES
 THAT SIGNIFICANT PORTIONS OF THE POSTINGS INTRODUCED INTO THE RECORD ARE
 "CRITICAL OF OR (REFLECT) ADVERSELY ON INDIVIDUALS, ORGANIZATIONS, AND
 ACTIVITIES OF THE FEDERAL GOVERNMENT," AND "ARGUABLY" VIOLATE THE BROAD
 PROHIBITIONS IN THE COLLECTIVE BARGAINING AGREEMENT (GENERAL COUNSEL'S
 BRIEF 9-10).  /12/
 
    PRIOR TO REMOVAL OF THE POSTING UNDERLYING THE COMPLAINT, THE
 RESPONDENT HAD NOT, TO THE KNOWLEDGE OF WITNESSES, REMOVED AN AFGE OR
 NTEU POSTING ON ANY OFFICIAL BULLETIN BOARD SPACE BECAUSE SUCH REFLECTED
 "ADVERSELY ON INDIVIDUALS, ORGANIZATIONS, OR ACTIVITIES OF THE FEDERAL
 GOVERNMENT." /13/ THERE IS NO INDICATION IN THE RECORD THAT ANY
 RESPONSIBLE MANAGEMENT OFFICIAL EVER OBSERVED ANY SPECIFIC POSTING ON
 ANY BULLETIN BOARD OTHER THAN THE POSTING REMOVED ON APRIL 25, 1979.
 
    THE RECORD IS SILENT CONCERNING ANY REAL EFFORT BY THE RESPONDENT TO
 POLICE THE USE OF BULLETIN BOARDS BY THE AFGE OR NTEU.  IT WAS DISCLOSED
 THAT THE RESPONDENT'S OFFICE OF LABOR MANAGEMENT AND EMPLOYEE RELATIONS
 DID NOT HAVE THE OBLIGATION TO POLICE THE USE OF BULLETIN BOARD SPACE
 (TR. 292-304).  NO PROOF WAS ADDUCED TO SHOW WHERE THIS RESPONSIBILITY
 WAS PLACED.
 
    AN INSPECTION OF BULLETIN BOARDS DID OCCUR JUST PRIOR TO THE JUNE 6,
 1978 REPRESENTATION ELECTION.  THIS WAS CONDUCTED BY NRC OFFICIALS IN
 THE LABOR MANAGEMENT AND EMPLOYEE RELATIONS BRANCH IN CONNECTION WITH
 RESPONDENT'S OBLIGATION TO POST ELECTION NOTICES;  HOWEVER, THIS
 INSPECTION WAS PRECIPITATED SOLELY BY THE NECESSITY TO POST ELECTION
 ANNOUNCEMENTS, AND WAS NOT A DETAILED INSPECTION TO UNCOVER VIOLATIONS
 OF THE COLLECTIVE BARGAINING AGREEMENT (TR. 291, 304).  ALTHOUGH THERE
 WAS SOME PERUSAL OF POSTINGS AND REMOVAL OF A NUMBER, THESE REMOVALS IN
 NO WAY INFRINGED UPON THE RIGHTS OF NTEU, AND INVOLVED NO CENSORSHIP OF
 NTEU POSTINGS (TR.  310-311, 334-336, 339-340).  AGAIN, THERE WAS NO
 INDICATION IN THE RECORD THAT ANY MANAGEMENT OFFICIAL EVER OBSERVED ANY
 SPECIFIC POSTING ON ANY SPECIFIC NTEU BULLETIN BOARD SPACE DURING THE
 INSPECTION.
 
    IT WAS BROUGHT OUT THAT ITEMS POSTED WERE USUALLY MADE THE SUBJECT OF
 WIDESPREAD DISTRIBUTION TO BARGAINING UNIT EMPLOYEES, AND THEN ALSO
 POSTED ON NTEU BULLETIN BOARD SPACE.  PROOF WAS ADDUCED TO SHOW THAT
 ITEMS DISTRIBUTED AND POSTED WERE USUALLY DISSEMINATED TO NRC MANAGEMENT
 (TR. 252-253);  /14/ HOWEVER, THERE WAS NO SHOWING THAT ANY MANAGEMENT
 OFFICIAL WAS AWARE OF ANY POSTING OF ANY SPECIFIC DOCUMENT DISSEMINATED
 TO MANAGEMENT.  THE RECORD IS DEVOID OF PROOF THAT ANY MANAGEMENT
 OFFICIAL SAW, PERMITTED OR CONDONED ANY POSTING OF ANY DISTRIBUTED
 DOCUMENT, OR PORTION OF ANY SUCH DOCUMENT, ON NTEU BULLETIN BOARD SPACE.
 
    ALTHOUGH IT IS TRUE THAT MANAGEMENT OFFICIALS WERE LOCATED THROUGHOUT
 THE NRC FACILITIES (TR. 303);  THERE WAS NO SHOWING THAT ANY MANAGER
 READ ANY POSTING GENERALLY OR SPECIFICALLY.  THERE WAS NO SHOWING THAT
 ANY MANAGEMENT OFFICIAL READ POSTINGS WITH TEXTUAL MATERIAL THAT FELL
 WITHIN THE PROHIBITIONS OF THE COLLECTIVE BARGAINING AGREEMENT.  PROOF
 WAS ADDUCED TO SHOW GENERAL NON-SPECIFIC MANAGEMENT COMMENTS TO THE
 EFFECT THAT NTEU LITERATURE WAS "WELL DONE" OR "INTERESTING" (TR.
 92-93).  THESE COMMENTS WERE NOT ATTRIBUTED TO ANY MANAGER OR BULLETIN
 BOARD POSTING.
 
                            CONCLUSIONS OF LAW
 
    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;
 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.
 26 (APRIL 27, 1979), REPORT NO. 14;  VETERANS ADMINISTRATION REGIONAL
 OFFICE, BUFFALO, NEW YORK, ASSISTANT SECRETARY CASE NO. 35-4567(CA), 1
 FLRA NO. 26 (APRIL 27, 1979), REPORT NO. 4;  INTERNAL REVENUE SERVICE,
 SOUTHWEST REGION, APPELLATE BRANCH OFFICE, NEW ORLEANS, LOUISIANA,
 A/SLMR NO. 1153(1978);  U.S. DEPARTMENT OF HEALTH, EDUCATION AND
 WELFARE, SOCIAL SECURITY ADMINISTRATION, BUREAU OF DATA PROCESSING,
 ALBUQUERQUE DATA OPERATIONS CENTER, ALBUQUERQUE, NEW MEXICO, A/SLMR NO.
 1080(1978);  U.S.  DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
 NEW ORLEANS DISTRICT, NEW ORLEANS, LOUISIANA, A/SLMR NO. 1034(1978), 6
 FLRC 900 (FLRC NO. 78A-71 (DEC. 1, 1978), REPORT NO. 161);  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
 ADMINISTRATION, A/SLMR NO. 283(1973).
 
    ALSO, THE FEDERAL LABOR RELATIONS COUNCIL HAS HELD THAT "EXISTING
 PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING
 CONDITIONS, WHETHER OR NOT THEY ARE INCLUDED IN A NEGOTIATED AGREEMENT,
 CONTINUE AS ESTABLISHED UPON THE EXPIRATION OF A NEGOTIATED AGREEMENT .
 . . UNLESS OTHERWISE MODIFIED IN A MANNER CONSISTENT WITH (EXECUTIVE
 ORDER 11491)." INTERNAL REVENUE SERVICE, OGDEN SERVICE CENTER, ET AL.,
 A/SLMR NO. 806(1977), 6 FLRC 310 (FLRC NO. 77A-40 (MAY 18, 1978), REPORT
 NO. 158);  DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
 BROOKHAVEN SERVICE CENTER, A/SLMR NO. 859(1977), 6 FLRC 310 (FLRC NO.
 77A-92 (MAY 18, 1978), REPORT NO. 158).
 
    IN THIS CASE THE COLLECTIVE BARGAINING AGREEMENT REPRESENTS NTEU-NRC
 PAST PRACTICE CONCERNING THE NTEU'S USE OF NRC BULLETIN BOARD SPACE.
 THE QUESTION POSED IS WHETHER THE PAST PRACTICE REFLECTED IN THE
 AGREEMENT WAS MODIFIED BY INFORMAL AGREEMENT ON MAY 2, 1978 AND/OR BY A
 PATTERN OF UNRESTRICTED USE OF NTEU BULLETIN BOARD SPACE FROM MAY 2,
 1978 TO APRIL 25, 1979.  THAT IS, THE ESSENCE OF THE CONTENTIONS AND
 ARGUMENTS OF THE PARTIES RELATES PRINCIPALLY TO WHETHER, UNDER THE
 PARTICULAR CIRCUMSTANCES PRESENTED HERE, THE RESPONDENT WAIVED THE RIGHT
 TO INSIST UPON THE APPLICABILITY OF THE PREVIOUSLY MENTIONED RESTRICTIVE
 PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT;  AND IF SO, WHETHER
 THE RESPONDENT THEN UNILATERALLY TERMINATED THE PRACTICE OF ALLOWING
 POSTINGS VIOLATIVE OF THE RESTRICTIVE PROVISIONS OF THE COLLECTIVE
 BARGAINING AGREEMENT.
 
    A CAREFUL REVIEW OF THE RECORD DISCLOSES NO BASIS FOR CONCLUDING THAT
 ON MAY 2, 1978, NRC AGREED TO GIVE NTEU UNRESTRICTED USE OF BULLETIN
 BOARD SPACE.  INSTEAD THE RECORD REVEALS THAT AT THE MAY 2, 1978 MEETING
 CONVENED BY THE DEPARTMENT OF LABOR, RESPONDENT INSISTED UPON THE
 PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT WITH RESPECT TO NTEU'S
 ACCESS TO BARGAINING UNIT EMPLOYEES.  EVIDENCE INTRODUCED ON BEHALF OF
 NTEU WITH RESPECT TO EVENTS OCCURRING IMMEDIATELY AFTER THE MENTIONED
 MEETING REFLECTS NOTHING TO CONTRADICT THIS VERSION OF WHAT TRANSPIRED
 ON MAY 2, 1978.  INSTEAD OF AN AGREEMENT REMOVING RESTRICTIONS ON
 BULLETIN BOARD POSTINGS, THERE WAS CONVINCING EVIDENCE THAT ON MAY 2,
 1978, NTEU AND AFGE WERE TREATED EQUALLY AND THAT NTEU'S ACCESS WAS MADE
 SUBJECT TO THE COLLECTIVE BARGAINING AGREEMENT.
 
    THE RECORD DOES SHOW THAT NTEU POSTED MATERIAL AFTER MAY 2, 1978, AND
 AFTER CERTIFICATION, WHICH ARGUABLY REFLECTED LANGUAGE FALLING WITHIN
 THE RESTRICTIVE PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT;
 HOWEVER, THERE WAS NO SHOWING THAT RESPONSIBLE MANAGEMENT OFFICIALS EVER
 PERMITTED OR CONDONED THE POSTING OF DOCUMENTS CONTAINING LANGUAGE
 VIOLATIVE OF THE RESTRICTIVE CONTRACTUAL PROVISIONS GOVERNING THE
 PRACTICE OF THE PARTIES WITH RESPECT TO THE USE OF NRC BULLETIN BOARD
 SPACE.  /15/ THERE WAS NO EVIDENCE THAT THE RESPONDENT CLEARED DOCUMENTS
 PRIOR TO POSTING, OR THAT ANY SPECIFIC POSTING CONTAINING LANGUAGE
 DEEMED OBJECTIONABLE TO RESPONDENT WAS NOTICED BY ANY RESPONSIBLE
 MANAGEMENT OFFICIAL.  THIS IS NOT A CASE WHERE PROOF WAS ADDUCED TO SHOW
 THAT MANAGEMENT RECEIVED, APPROVED, OR PROCESSED POSTINGS, ALTHOUGH IT
 IS CLEAR THAT SUCH A RIGHT MAY HAVE BEEN IMPLIED IN THE COLLECTIVE
 BARGAINING AGREEMENT.  THE CONTRACT DOES INDICATE THAT THE BULLETIN
 BOARDS WOULD BE UNDER RESPONDENT'S CONTROL;  HOWEVER, EVIDENCE OF THE
 EXERCISE OF ANY RIGHT OF CONTROL BY NRC IS LACKING.  IN FACT THE
 COLLECTIVE BARGAINING AGREEMENT OPERATED TO PLACE UPON THE UNION THE
 RESPONSIBILITY FOR COMPLIANCE WITH THE RESTRICTIVE PROVISIONS.  IN THIS
 REGARD COUNSEL FOR THE GENERAL COUNSEL APPEARS TO SUGGEST THAT A MERE
 SHOWING OF NTEU'S FAILURE TO PERFORM SUCH RESPONSIBILITY FOR A PERIOD OF
 TIME MAY BE MADE A BASIS FOR FUTURE NON-PERFORMANCE (TR. 28).
 
    ALTHOUGH PROOF WAS INTRODUCED TO SHOW THAT NRC MANAGERS RECEIVED
 COPIES OF DOCUMENTS DISTRIBUTED GENERALLY TO BARGAINING UNIT EMPLOYEES,
 THERE WAS NO PROOF THAT ANY MANAGER RECEIVED COPIES OF DOCUMENTS KNOWN
 TO HAVE BEEN POSTED ON NTEU BULLETIN BOARD SPACE, OR MORE SPECIFICALLY,
 COPIES OF POSTINGS CONTAINING LANGUAGE FALLING WITHIN THE RESTRICTIVE
 PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT.  PROOF THAT DOCUMENTS
 DISTRIBUTED GENERALLY TO BARGAINING UNIT MEMBERS WERE ALSO DISTRIBUTED
 TO MANAGEMENT WOULD NOT OPERATE TO IMPUTE TO MANAGEMENT, KNOWLEDGE OF
 THE CONTENT OF DOCUMENTS SELECTED FOR POSTING IN THE ABSENCE OF PROOF
 THAT RESPONSIBLE MANAGEMENT OFFICIALS KNEW OR WERE AWARE THAT DOCUMENTS
 DISTRIBUTED WERE ALSO POSTED BY THE UNION.  ONE MAY SPECULATE THAT SOME
 MANAGER OR MANAGERS SAW OR READ ONE OR MORE OF THE POSTED DOCUMENTS
 ENTERED INTO THE RECORD AS EXAMPLES OF BULLETIN BOARD POSTINGS DEEMED
 VIOLATIVE OF THE COLLECTIVE BARGAINING AGREEMENT.  HOWEVER, THE RECORD
 CONTAINS NO EVIDENCE OF THIS TYPE.
 
    A SHOWING OF UNRESTRICTED USE OF BULLETIN BOARDS FROM MAY 2, 1978
 THROUGH APRIL 25, 1979, WITHOUT MORE, WOULD NOT BE ENOUGH TO ESTABLISH
 THAT THE RESPONDENT REGULARLY PERMITTED THE POSTING OF MATERIAL WHICH
 REFLECTED "ADVERSELY ON INDIVIDUALS, ORGANIZATIONS, OR ACTIVITIES OF THE
 FEDERAL GOVERNMENT." IN DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
 REGION V, CHICAGO, ILLINOIS, CASE NOS. 5-CA-33, 5-CA-72 AND 5-CA-116,
 DECIDED ON FEBRUARY 4, 1980, AND NOW PENDING BEFORE THE AUTHORITY, JUDGE
 WILLIAM B. DEVANEY HELD:
 
    TO CONSTITUTE A CONDITION OF EMPLOYMENT CONTRARY TO A NEGOTIATED
 AGREEMENT, SUCH PRACTICE
 
    MUST:  (A) BE KNOWN TO MANAGEMENT;  (B) RESPONSIBLE MANAGEMENT MUST
 KNOWINGLY ACQUIESCE;  AND
 
    (C) SUCH PRACTICE MUST CONTINUE FOR SOME SIGNIFICANT PERIOD OF TIME.
 THE ALTERNATIVE WOULD BE
 
    CHAOS AND COLLECTIVE BARGAINING AGREEMENTS WOULD BE RENDERED
 MEANINGLESS IF EVERY DEPARTURE
 
    CREATED A NEW CONDITION OF EMPLOYMENT (DECISION AT PAGE 8).
 
    JUDGE DEVANEY FOUND THAT RESPONSIBLE MANAGEMENT OFFICIALS KNOWINGLY
 ACQUIESCED IN A PRACTICE, BUT THAT THE PRACTICE INVOLVED WAS NOT
 UNILATERALLY CHANGED BY MANAGEMENT.  IN THIS CASE IT IS CLEAR THAT PROOF
 OF ELEMENTS (A) AND (B) REFERRED TO IN THE QUOTED LANGUAGE ARE MISSING.
 
    AUTHORITIES CITED HEREIN REFLECT THAT UNLESS A PRIVILEGE OR RIGHT TO
 UTILIZE AGENCY FACILITIES AND SERVICES EXISTS IN THE FIRST INSTANCE, AN
 UNFAIR LABOR PRACTICE MAY NOT BE PREDICATED UPON A MANAGEMENT EFFORT TO
 PROHIBIT THEIR USE.  THAT IS, IN ORDER TO BRING THE PRINCIPLE INTO
 OPERATION, THERE MUST BE A CLEAR SHOWING THAT USE OF AGENCY FACILITIES
 OR EQUIPMENT DEVELOPED OVER A PERIOD OF TIME INTO A TERM AND CONDITION
 OF EMPLOYMENT.
 
    IN ARKANSAS ARMY NATIONAL GUARD, A CASE INVOLVING DISCONTINUANCE OF
 THE USE OF AN INTERNAL MAIL SYSTEM, THERE WAS A FINDING THAT RESPONSIBLE
 MANAGEMENT OFFICIALS HAD PERMITTED OR INTENTIONALLY OVERLOOKED THE
 UNION'S PRIOR USE OF THE INTERNAL MAIL SYSTEM.  IN HEADQUARTERS, 2750TH
 AIR BASE WING, U.S. AIR FORCE, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, A
 COMPLAINT ALLEGED IN PART, THAT A UNION'S USE OF TYPING FACILITIES WAS
 DENIED.  THIS PORTION OF THE COMPLAINT WAS DISMISSED BECAUSE "SUCH USE
 OF (MANAGEMENT) TYPING FACILITIES WAS NEVER KNOWINGLY PERMITTED" IN THE
 FIRST INSTANCE.  IN VETERANS ADMINISTRATION REGIONAL OFFICE, BUFFALO,
 NEW YORK, THE PRIOR PRACTICE ALLEGEDLY CHANGED, WAS ONE INVOLVING THE
 SELECTION OF EMPLOYEES FOR PROMOTION, A PRACTICE NECESSARILY KNOWN TO
 MANAGEMENT.  IN INTERNAL REVENUE SERVICE, SOUTHWEST REGION, APPELLATE
 BRANCH OFFICE, NEW ORLEANS, LOUISIANA;  AND U.S. DEPARTMENT OF THE
 TREASURY, INTERNAL REVENUE SERVICE, NEW ORLEANS DISTRICT, NEW ORLEANS,
 LOUISIANA, MANAGEMENT KNOWINGLY PERMITTED UNION USE OF TYPEWRITERS
 AND/OR SECRETARIAL SERVICE, AND THEN SUBSEQUENTLY WITHDREW SUCH
 PERMISSION.  IN U.S. DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL
 SECURITY ADMINISTRATION, BUREAU OF DATA PROCESSING, ALBUQUERQUE DATA
 OPERATIONS CENTER, THERE WAS A FINDING THAT A TELEPHONE CALL SCREENING
 PROCEDURE UNILATERALLY IMPLEMENTED BY MANAGEMENT SCREENING.  IN VETERANS
 ADMINISTRATION, VETERANS ADMINISTRATION REGIONAL OFFICE, NEW YORK
 REGION, AGENCY MANAGEMENT, UNDER THE TERMS OF AN INFORMAL AGREEMENT,
 SUPPLIED A TELEPHONE FOR THE DESK OF A UNION PRESIDENT, AND THEREAFTER
 REFUSED TO PERMIT THE USE OF A DESK TELEPHONE.  IN INTERNAL REVENUE
 SERVICE, OFFICE OF THE REGIONAL COMMISSION, WESTERN REGION, AGENCY
 MANAGEMENT AND A UNION AGREED TO THE USE OF AGENCY BULLETIN BOARDS AND
 MEETING ROOMS, AND PLACED RESTRICTIONS ON SUCH USE.  SUBSEQUENTLY,
 REFUSAL BY MANAGEMENT TO PROVIDE THE USE OF BULLETIN BOARDS WAS BASED ON
 RESTRICTIONS WHICH WENT BEYOND THOSE ESTABLISHED AND AGREED UPON BY THE
 AGENCY.  THIS WAS DEEMED TO BE A UNILATERAL CHANGE IN THE TERMS AND
 CONDITIONS OF EMPLOYMENT.  IN LOS ANGELES AIR ROUTE TRAFFIC CONTROL
 CENTER, FEDERAL AVIATION ADMINISTRATION, BULLETIN BOARD POSTINGS AND
 DOCUMENTS TO BE PLACED IN CERTAIN READING BINDERS WERE ALLOWED BY
 MANAGEMENT SUBJECT TO CERTAIN MANAGEMENT RULES.  MANAGEMENT'S
 SUBSEQUENT
 USE OF DIFFERENT STANDARDS COMPRISED THE PRIMARY BASIS OF THE UNFAIR
 LABOR PRACTICE COMPLAINT.  AGAIN, THERE WAS NO QUESTION CONCERNING THE
 NATURE OF MANAGEMENT'S AWARENESS OF, AND ACQUIESCENCE IN, THE PRIOR
 PRACTICE.  PROOF OF THIS ELEMENT IS ESSENTIAL.
 
    COUNSEL FOR THE GENERAL COUNSEL ALSO ARGUES THAT RESPONDENT'S ACTION
 ON APRIL 25, 1979, ALSO REPRESENTED A UNILATERAL ESTABLISHMENT OF WHAT
 PREVIOUSLY HAD BEEN AN AMBIGUOUS, IRREGULARLY ENFORCED POLICY.  COUNSEL
 CITES PENNSYLVANIA ARMY AND AIR NATIONAL GUARD, A/SLMR NO. 969(1978) AS
 AUTHORITY FOR THIS POSITION.  THE CITED CASE DEALT WITH AN AGENCY'S
 REQUIREMENT THAT NATIONAL GUARD CIVILIAN TECHNICIANS INCLUDE REFERENCE
 TO THEIR MILITARY RANK ON CERTAIN RECORDS PREPARED BY THE TECHNICIANS.
 IN FINDING A VIOLATION OF SECTION 19(A)(1) AND (6) OF EXECUTIVE ORDER
 11491, THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS
 DETERMINED THAT IF THERE WAS IN FACT A PRIOR POLICY, THE AGENCY'S
 ATTEMPTS TO ENFORCE SUCH POLICY WERE IRREGULAR AND AMBIGUOUS.  NO SUCH
 SHOWING WAS MADE IN THIS CASE.  HERE THE RECORD REFLECTS THAT THE
 RESPONDENT'S CONDUCT CONSISTENTLY INVOLVED INSISTENCE UPON THE
 RESTRICTIVE PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT.  THERE
 WAS NO SHOWING THAT THE RESPONDENT IRREGULARLY ENFORCED THE RESTRICTIVE
 PROVISIONS IN QUESTION.  THE RECORD DEVELOPED REFLECTS THAT THE APRIL
 25, 1979 INCIDENT WAS A CASE OF FIRST IMPRESSION, IN THAT IT WAS THE
 FIRST TIME THAT A SPECIFIC DOCUMENT POSTED BY NTEU WAS NOTICED BY
 MANAGEMENT AND REMOVED, BUT THAT PRIOR TO APRIL 25, 1979, THERE WAS A
 PATTERN OF INSISTENCE UPON THE APPLICABILITY OF THE TERMS OF THE
 COLLECTIVE BARGAINING AGREEMENT.
 
    LASTLY, COUNSEL FOR THE GENERAL COUNSEL ARGUES THAT RESPONDENT'S
 CONDUCT ON APRIL 25, 1979, CONSTITUTED THE UNILATERAL IMPOSITION OF A
 NEW TERM AND CONDITION OF EMPLOYMENT IN THAT PART VI, ARTICLE F, OF THE
 AFGE-NRC AGREEMENT PROVIDES THAT DISPUTES OVER THE APPLICATION OR
 INTERPRETATION OF THE PROVISIONS OF THE AGREEMENT BETWEEN THE EMPLOYER
 AND THE UNION ARE TO BE HANDLED PURSUANT TO THE CONTRACTUAL DISPUTE
 RESOLUTION PROCEDURE IN THE CONTRACT, AND THAT THE RESPONDENT, IN
 EFFECT, WAIVED THE RIGHT, TO TAKE UNILATERAL ACTION OUTSIDE OF THE
 AGREEMENT TO RESOLVE DISPUTES.  THE COMPLAINT HEREIN ALLEGES VIOLATIONS
 OF THE STATUTE BASED UPON UNILATERAL CHANGES IN "EXISTING CONDITIONS OF
 EMPLOYMENT AND PAST PRACTICES WITH REGARD TO UNION BULLETIN BOARDS
 INCLUDING, THE IMPACT AND IMPLEMENTATION OF SUCH CHANGES BY REMOVING AN
 ARTICLE FROM A DESIGNATED UNION BULLETIN BOARD." THE COMPLAINT AT NO
 POINT ALLEGES A UNILATERAL CHANGE IN THE CONTRACTUAL DISPUTE RESOLUTION
 PROCEDURE.  EVEN ASSUMING THE POSSIBILITY OF A VIOLATION, BASED ON THIS
 THEORY IT MAY NOT BE GIVEN CONSIDERATION AT THIS STAGE OF THE
 PROCEEDING.  SINCE THIS MATTER WAS NOT REFERRED TO IN THE COMPLAINT, IT
 MAY NOT NOW BE CONSIDERED.  INTERNAL REVENUE SERVICE AND BROOKLYN
 DISTRICT OFFICE, ASSISTANT SECRETARY CASE NO. 30-08634(CA), 2 FLRA NO.
 76 (JAN. 25, 1980), REPORT NO. . . . ;  DEPARTMENT OF THE NAVY, NORFOLK
 NAVAL SHIPYARD, A/SLMR NO.  967(1978).
 
    IT IS CONCLUDED THAT A PREPONDERANCE OF THE EVIDENCE DOES NOT SUPPORT
 ALLEGATIONS THAT THE RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (5) OF
 THE STATUTE.  UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS,
 IT IS RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT
 TO 5 C.F.R. 2423.29(C):
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 3-CA-263, BE, AND
 HEREBY IS, DISMISSED.
 
                               LOUIS SCALZO
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATE:  APRIL 14, 1980
 
    WASHINGTON, D.C.
 
                               SERVICE SHEET
 
    COPIES OF THE "RECOMMENDED DECISION AND ORDER" ISSUED BY LOUIS
 SCALZO, ADMINISTRATIVE LAW JUDGE, WAS SENT TO THE FOLLOWING PEOPLE BY
 CERTIFIED MAIL.
 
                             BECKY J. FORREST
 
    LEE MINGLEDORFF, ESQUIRE
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    REGION III
 
    1730 K STREET, NW., SUITE 401
 
    WASHINGTON, D.C. 20006
 
    BARBARA J. COLLINS, ESQUIRE
 
    ASSISTANT COUNSEL
 
    NATIONAL TREASURY EMPLOYEES UNION
 
    1730 K STREET, NW., SUITE 1101
 
    WASHINGTON, D.C. 20006
 
    DENNIS C. DAMBLY, ESQUIRE
 
    BRUCE A. BERSON, ESQUIRE
 
    OPERATIONS AND ADMINISTRATIVE DIVISION
 
    OFFICE OF THE EXECUTIVE LEGAL DIRECTOR
 
    U.S. NUCLEAR REGULATORY COMMISSION
 
    WASHINGTON, D.C. 20555
 
    REGULAR MAIL:
 
    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, N.W., ROOM 7469
 
    WASHINGTON, D.C. 20424
 
    MR. ROBERT TOBIAS
 
    GENERAL COUNSEL
 
    NATIONAL TREASURY EMPLOYEES UNION
 
    1730 K STREET, NW.
 
    WASHINGTON, D.C. 20006
 
    1 COPY TO EACH REGIONAL DIRECTOR
 
    H. STEPHAN GORDON
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    GENERAL COUNSEL
 
    1900 E STREET, NW.
 
    WASHINGTON, D.C. 20424
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE CROSS-EXCEPTION ASSERTS THAT THE GENERAL COUNSEL'S COMPLAINT
 SHOULD BE DISMISSED BASED ON THE RESPONDENT'S PRE-HEARING MOTION FOR A
 MORE DEFINITE STATEMENT OR FOR AN ORDER DIRECTING THE AUTHORITY TO
 RESPOND TO WRITTEN INTERROGATORIES, WHICH WAS REJECTED BY THE
 ADMINISTRATIVE LAW JUDGE.  RESPONDENT'S MOTION TO RECONSIDER ALSO WAS
 REJECTED BY THE JUDGE.  IN SAID MOTIONS, THE RESPONDENT MAINTAINED THAT
 IT DID NOT RECEIVE NOTICE OF ALL ISSUES OF FACT AND LAW WHICH THE
 GENERAL COUNSEL INTENDED TO ASSERT AT THE HEARING, AND THAT THE
 COMPLAINT WAS MISLEADING BECAUSE THE CHARGE IT IS BASED UPON WAS
 MISLEADING.  THE AUTHORITY AFFIRMS THE RULING MADE BY THE ADMINISTRATIVE
 LAW JUDGE RELATIVE TO THE PRE-HEARING MOTIONS IN WHICH HE FOUND THE
 COMPLAINT MET THE REQUIREMENTS OF 5 CFR 2423.11 AND THAT THE ALLEGATIONS
 CONTAINED THEREIN WERE NEITHER VAGUE NOR PRECLUDED THE RESPONDENT FROM
 UNDERSTANDING, RESPONDING TO, OR DEFENDING AGAINST THE COMPLAINT.  IN
 AFFIRMING THE JUDGE, THE AUTHORITY ALSO NOTES THAT ALL RELEVANT ISSUES
 WERE FULLY LITIGATED AT THE HEARING.
 
    /2/ COUNSEL FOR THE CHARGING PARTY FILED A POST-HEARING BRIEF WHICH
 ALSO ADVANCED THESE ARGUMENTS.
 
    /3/ THE PARTIES DID IN FACT RELY UPON NOVEMBER 17, 1978 AS THE DATE
 ON WHICH NTEU WAS CERTIFIED.
 
    /4/ THE EXACT EFFECTIVE DATE OF THE AGREEMENT IS NOT REFLECTED IN THE
 RECORD.
 
    /5/ THE ARTICLE CAPTIONED, "WE ONLY KNOW WE ALMOST LOST
 PENNSYLVANIA," DEALT WITH THE NUCLEAR ACCIDENT AT THE THREE MILE ISLAND
 NUCLEAR POWER PLANT.  MR. BENTSON REFERRED TO LANGUAGE WHEREIN IT WAS
 NOTED THAT "METROPOLITAN EDISON, THE TRANSPARENTLY THAN NRC" (JOINT
 EXHIBIT 1, TR. 49-50).
 
    /6/ DURING THIS PERIOD NTEU WAS NOT LEGALLY FUNCTIONING AT THE NRC AS
 BARGAINING REPRESENTATIVE.  HOWEVER, NTEU CHAPTER 208 WAS ORGANIZED WITH
 REPRESENTATIVES APPOINTED BY THE NATIONAL OFFICE OF NTEU.
 
    /7/ COUNSEL FOR THE GENERAL COUNSEL RELIES UPON RESPONDENT'S ALLEGED
 FAILURE TO DISCUSS OR IMPOSE BULLETIN BOARD RESTRICTIONS UPON NTEU
 DURING AN INFORMAL MEETING ON MAY 2, 1978 (TR. 21, 22, 24, 351, GENERAL
 COUNSEL'S BRIEF AT 2).  HOWEVER, IT IS CLEAR THAT MERE SILENCE ON THESE
 POINTS, FOLLOWING AS IT MUST HERE, PRIOR INSISTENCE UPON NTEU BEING
 GIVEN TREATMENT EQUAL TO THAT GIVEN AFGE, MAY NOT BE CONSTRUED AS A
 GRANT OF UNRESTRICTED USE OF NTEU BULLETIN BOARD SPACE.
 
    COUNSEL FOR THE GENERAL COUNSEL ACKNOWLEDGED THAT THE COLLECTIVE
 BARGAINING AGREEMENT WAS THE ONLY EVIDENCE OF ANY AFGE-NRC PRACTICE
 REGARDING THE USE OF BULLETIN BOARDS (TR. 126);  AND THAT IF THE NRC
 GAVE NTEU MORE ACCESS THAN AFGE, SUCH CONDUCT WOULD HAVE INVOLVED A
 POSSIBLE UNFAIR LABOR PRACTICE (TR.
 
    /8/ THIS PHRASE REFERS TO THE MEETING CONVENED BY THE DEPARTMENT OF
 LABOR.
 
    /9/ LETTER DATED FEBRUARY 21, 1979 ADDRESSED TO MR. VINCENT CONNERY,
 PRESIDENT, NATIONAL TREASURY EMPLOYEES UNION BY DANIEL J. DONOGHOE,
 DIRECTOR, OFFICE OF ADMINISTRATION, NRC.  THE UNFAIR LABOR PRACTICE
 CHARGE WAS SUBSEQUENTLY DISMISSED BY THE AUTHORITY (RESPONDENT EXHIBIT
 8).  IN SO DOING, THE ACTING REGIONAL DIRECTOR NOTED THAT "(I)T IS
 AXIOMATIC THAT AN AGENCY CANNOT UNILATERALLY CHANGE ESTABLISHED
 NEGOTIATED TERMS AND CONDITIONS OF EMPLOYMENT WHERE AN EXCLUSIVE
 REPRESENTATIVE EXISTS.  FURTHER, IT IS MY VIEW THAT ESTABLISHED TERMS
 AND CONDITIONS OF EMPLOYMENT, INCLUDING A NEGOTIATED GRIEVANCE
 PROCEDURE, SURVIVE EVEN IN THE FARE (SIC) OF THE EXPIRATION OF A
 COLLECTIVE-BARGAINING AGREEMENT.  THUS, THE AGENCY CORRECTLY REJECTED
 THE EMPLOYEE'S GRIEVANCE WHEN IT WAS FILED UNDER THE AGENCY GRIEVANCE
 PROCEDURE, RATHER THAN THE NEGOTIATED GRIEVANCE PROCEDURE WHICH
 REMAINED
 IN EFFECT UNTIL REPLACED BY COLLECTIVE BARGAINING BETWEEN THE AGENCY AND
 THE NATIONAL TREASURY EMPLOYEES UNION."
 
    /10/ MR. THOMAS DID NOT REPUDIATE THIS VERSION, BUT MERELY FAILED TO
 RECALL ANY CONVERSATIONS DURING THIS PERIOD (TR. 154-155).
 
    /11/ IN ADDITION TO "OFFICIAL NRC BULLETIN BOARDS," OTHER BULLETIN
 BOARDS WERE AVAILABLE TO NRC EMPLOYEES.  THESE WERE CHARACTERIZED AS
 "EMPLOYEE BULLETIN BOARDS." ALLEGATIONS HEREIN CONCERNING THE
 DEVELOPMENT OF A PAST PRACTICE INVOLVING UNRESTRICTED USE OF BULLETIN
 BOARDS BY NTEU RELATE SOLELY TO NTEU'S USE OF "OFFICIAL NRC BULLETIN
 BOARDS."
 
    /12/ THE EXACT PERIODS OF THE POSTINGS ARE NOT REFLECTED IN THE
 RECORD.  WITH MINOR EXCEPTIONS THE EXACT LOCATIONS OF SPECIFIC POSTINGS
 WERE NOT ESTABLISHED.  IT IS NOTED THAT THE COLLECTIVE BARGAINING
 AGREEMENT REFLECTS NO REFERENCE TO THE WORD "CRITICAL" (JOINT EXHIBIT 3
 AT 38).
 
    /13/ RESPONDENT'S WITNESSES TESTIFIED TO THIS EFFECT.  ALSO, THEY
 WERE NOT AWARE OF ANY REMOVAL OF AN NTEU POSTING ON NTEU BULLETIN BOARD
 SPACE FOR ANY REASON (TR.  36, 310-311, 336, 340).
 
    /14/ COPIES OF GENERAL COUNSEL EXHIBITS 7, 8, 9, AND 10 WERE
 REQUESTED BY REPRESENTATIVES OF THE NRC LABOR MANAGEMENT AND EMPLOYEES
 RELATIONS BRANCH WHEN DISTRIBUTED (TR. 276-277, 302, 332).  HOWEVER,
 THERE WAS NO EVIDENCE THAT DISSEMINATION INVOLVED KNOWLEDGE OF THE
 ACTUAL POSTING OF THESE DOCUMENTS, OR AWARENESS OF ANY CONDUCT VIOLATIVE
 OF THE COLLECTIVE BARGAINING AGREEMENT.
 
    /15/ IN VIEW OF THE FIND