Department of the Treasury, Internal Revenue Service, Cleveland, Ohio (Respondent) and National Treasury Employees Union and National Treasury Employees Union, Chapter 37 (Charging Party)

 



[ v06 p240 ]
06:0240(40)CA
The decision of the Authority follows:


 6 FLRA No. 40
 
 DEPARTMENT OF THE TREASURY,
 INTERNAL REVENUE SERVICE,
 CLEVELAND, OHIO
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 NATIONAL TREASURY EMPLOYEES UNION
 CHAPTER 37
 Charging Party
 
                                            Case No. 5-CA-308
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION AND ORDER IN THE
 ABOVE-ENTITLED PROCEEDING CONCLUDING THAT THE UNFAIR LABOR PRACTICE
 COMPLAINT, RELATING TO THE RESPONDENT'S ALLEGED VIOLATION OF SECTION
 7116(A)(1) AND (5) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (THE STATUTE), BE DISMISSED IN ITS ENTIRETY.  THE GENERAL
 COUNSEL AND THE CHARGING PARTY FILED EXCEPTIONS TO THE JUDGE'S DECISION
 AND ORDER, AND THE RESPONDENT FILED AN OPPOSITION TO SUCH EXCEPTIONS.
 
    THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2423.29) AND SECTION 7118 OF 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 IN THE CASE, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S
 FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS.
 
    AS MORE FULLY SET FORTH IN THE ATTACHED JUDGE'S DECISION, THE
 RESPONDENT AND THE NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 37 (NTEU)
 ARE CURRENTLY PARTIES TO A COLLECTIVE BARGAINING AGREEMENT.  REVENUE
 AGENT MARVIN JAFFE BECAME PRESIDENT OF NTEU, CHAPTER 37 IN EARLY OCTOBER
 1979.  SHORTLY AFTER, ON OCTOBER 11, 1979, JAFFE MET WITH HIS IMMEDIATE
 SUPERVISOR, MR. LEONARD LURIE, FOR THE PURPOSE OF DISCUSSING THEIR
 MUTUAL UNDERSTANDING OF THE COLLECTIVE BARGAINING AGREEMENT.  THE
 DISCUSSION CONCERNED, AMONG OTHER THINGS, THE USE OF IRS TYPEWRITERS BY
 THE NTEU AND, THE ABILITY OF EMPLOYEE VISITORS TO COME INTO MR. JAFFE'S
 WORK AREA TO TALK TO HIM ABOUT UNION BUSINESS.  FOLLOWING THE MEETING,
 MR. LURIE WROTE A MEMORANDUM TO JAFFE, SETTING FORTH MANAGEMENT'S
 INTERPRETATION AND UNDERSTANDING OF THE CONTRACT.  THE MEMORANDUM STATED
 THAT IT WAS MANAGEMENT'S UNDERSTANDING THAT THE AGREEMENT DID NOT ALLOW
 THE USE OF GOVERNMENT EQUIPMENT FOR PREPARATION OF UNION ADMINISTRATIVE
 DOCUMENTS NOR VISITS IN THE WORK AREA FOR DISCUSSION OF UNION BUSINESS.
 THE USE OF EQUIPMENT AND VISITS IN WORK AREA IS COVERED BY ARTICLES 6
 AND 14 OF THE NEGOTIATED AGREEMENT, RESPECTIVELY.  IN ESSENCE, ARTICLE 6
 PROVIDES THAT CERTAIN NTEU OFFICERS, INCLUDING THE CHAPTER PRESIDENT,
 ARE AFFORDED OFFICIAL TIME TO CONFER WITH EMPLOYEES ABOUT SEEKING
 REMEDIAL RELIEF UNDER THE CONTRACT, PREPARE GRIEVANCES, INTERVIEW
 WITNESSES, REVIEW DOCUMENTS NOT AVAILABLE DURING NONDUTY HOURS, AND
 PREPARE RESPONSE TO PROPOSED DISCIPLINARY ACTIONS.  ARTICLE 14
 ESSENTIALLY PROVIDES THAT THE ACTIVITY WILL, UPON REQUEST, PROVIDE
 MEETING ROOMS TO THE NTEU FOR THE PURPOSE OF PREPARING OR DISCUSSING A
 GRIEVANCE FOR A MEETING WITH THE ACTIVITY, OR, FOR " . . . INFORMAL
 DISCUSSIONS TO CARRY OUT THE GOALS AND OBJECTIVES OF E.O. 11491, AS
 AMENDED."
 
    THE COMPLAINT ALLEGES THAT THE RESPONDENT UNILATERALLY CHANGED
 EXISTING CONDITIONS OF EMPLOYMENT BY PREVENTING NTEU USE OF RESPONDENT'S
 EQUIPMENT AT THE ACTIVITY, AND BY PREVENTING THE NTEU'S OFFICERS FROM
 HAVING VISITORS AT THEIR WORK LOCATIONS FOR REPRESENTATIONAL PURPOSES.
 THE COMPLAINT ALLEGES A VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE
 STATUTE BASED UPON THE RESPONDENT'S ALLEGED FAILURE TO AFFORD THE NTEU
 NOTICE OR AN OPPORTUNITY TO BARGAIN CONCERNING THESE ALLEGED CHANGES.
 IN HIS RECOMMENDED DECISION AND ORDER, THE JUDGE CONCLUDED THAT THE
 ACTIONS OF MANAGEMENT OFFICIALS IN PREVENTING THE USE OF EQUIPMENT
 AND/OR DISCUSSION OF UNION BUSINESS IN THE WORK AREA OF THE NTEU
 OFFICERS WAS MERELY A REAFFIRMATION OF THE EXISTING POLICY WITHIN THE
 CLEVELAND DISTRICT OFFICE, AND THEREFORE, NOT A CHANGE IN THE CONDITIONS
 OF EMPLOYMENT.  IN REACHING THIS CONCLUSION, HE NOTED THAT THE NTEU'S
 FAILURE TO COMPLY WITH RESPONDENT'S POLICY MAY NOT, WITHOUT MORE, BE
 USED AS PROOF OF THE EXISTENCE OF A PAST PRACTICE AT VARIANCE TO THAT
 POLICY.  THUS, THE JUDGE FOUND THAT THE GENERAL COUNSEL FAILED TO
 SUSTAIN HIS BURDEN OF PROVING THE EXISTENCE OF A PAST PRACTICE ALLOWING
 THE NTEU USE OF RESPONDENT'S EQUIPMENT, OR ALLOWING EMPLOYEES TO MEET
 WITH THE CHAPTER PRESIDENT AT HIS WORKSITE IN THE ABSENCE OF EVIDENCE
 THAT ESTABLISHED THAT MANAGEMENT WAS AWARE OF, AND CONDONED, THESE
 PRACTICES.
 
    THE AUTHORITY AGREES WITH THE JUDGE'S CONCLUSION THAT THE ACTIONS OF
 MANAGEMENT OFFICIALS IN PREVENTING THE USE OF EQUIPMENT AND THE
 PREVENTION OF DISCUSSION OF UNION BUSINESS DID NOT VIOLATE SECTION
 7116(A)(1) AND (A)(5) OF THE STATUTE, BUT WAS MERELY A REAFFIRMATION OF
 THE EXISTING POLICY WITHIN THE CLEVELAND DISTRICT, AND, THEREFORE NOT A
 CHANGE IN THE CONDITIONS OF EMPLOYMENT.  /1/ IN THIS REGARD, AS THE
 JUDGE FOUND, AND THE RECORD DEMONSTRATES, THE GENERAL COUNSEL DID NOT
 ESTABLISH BY A PREPONDERANCE OF EVIDENCE THAT MANAGEMENT HAD KNOWLEDGE
 OF, OR CONDONED, EITHER THE USE OF TYPEWRITERS OR OTHER AGENCY EQUIPMENT
 FOR PREPARATION OF UNION ADMINISTRATIVE BUSINESS, OR OF VISITORS IN THE
 WORK AREA OF THE CHAPTER PRESIDENT FOR DISCUSSION OF UNION BUSINESS.
 /2/ ACCORDINGLY, THE AUTHORITY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
 RECOMMENDATION TO DISMISS THE COMPLAINT HEREIN.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 5-CA-308 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JULY 9, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                        FEDERAL LABOR RELATIONS AUTHORITY
 
    
 
 
 
 -------------------- ALJ DECISION FOLLOWS --------------------
 
 SANDRA LEBOLD, ESQUIRE
 
                          FOR THE GENERAL COUNSEL
 
    JAMES E. ROGERS, ESQUIRE
 
                              FOR RESPONDENT
 
    LYNN SYLVESTER, ESQUIRE
 
                          FOR THE CHARGING PARTY
 
    BEFORE:  ELI NASH, JR.
 
    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, 97
 STAT. 1191, 5 U.S.C.  7101 ET SEQ., AND THE RULES AND REGULATIONS ISSUED
 THERE UNDER.
 
    THE COMPLAINT ALLEGED THAT THE DEPARTMENT OF TREASURY, INTERNAL
 REVENUE SERVICE, CLEVELAND, OHIO, HEREIN CALLED RESPONDENT OR, IRS,
 VIOLATED 5 U.S.C. 7116(A)(1) AND (5), HEREIN CALLED THE STATUTE, BY
 PREVENTING NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 37, HEREIN CALLED
 THE UNION, ACCESS TO AND USE OF RESPONDENT'S EQUIPMENT AT THE ACTIVITY
 WITHOUT FURNISHING THE UNION WITH NOTICE AND/OR AN OPPORTUNITY TO
 BARGAIN CONCERNING SUCH CHANGES AND BY PREVENTING UNION OFFICERS FROM
 HAVING VISITORS AT THEIR WORK LOCATIONS WITHOUT FURNISHING THE UNION
 WITH NOTICE AND/OR AN OPPORTUNITY TO BARGAIN CONCERNING SUCH CHANGES.
 
    AN ANSWER WAS FILED BY RESPONDENT WHICH DENIED THE COMMISSION OF ANY
 UNFAIR LABOR PRACTICES.
 
    A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED IN
 CLEVELAND, OHIO, ON MAY 6 AND 7, 1980.  ALL PARTIES WERE REPRESENTED BY
 COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT
 EVIDENCE, AND EXAMINE AND CROSS-EXAMINE WITNESSES.  BOTH RESPONDENT AND
 THE GENERAL COUNSEL FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED.  BASED
 UPON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATIONS OF THE
 WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
 ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS OF FACT,
 CONCLUSIONS OF LAW, AND ORDER.
 
                             FINDINGS OF FACT
 
    AT ALL TIMES MATERIAL HEREIN THE PARTIES WERE GOVERNED BY A
 MULTI-DISTRICT AGREEMENT ENTERED INTO BY THE INTERNAL REVENUE SERVICE
 AND THE NATIONAL TREASURY EMPLOYEES UNION.
 
    IN EARLY OCTOBER 1979, SHORTLY AFTER BEING ELECTED PRESIDENT OF
 CHAPTER 37 OF THE UNION, MR. MARVIN JAFFE MET WITH HIS GROUP MANAGER,
 MR. LEONARD LURIE FOR THE PURPOSE OF DISCUSSING THEIR MUTUAL
 UNDERSTANDING OF THE MULTI-DISTRICT AGREEMENT.  THE DISCUSSION CENTERED
 AROUND THE USE OF CHAPTER BANK TIME, THE USE OF IRS TYPEWRITERS, OF THE
 FEDERAL TELECOMMUNICATIONS SYSTEM AND AS TO VISITORS COMING INTO THE
 AREA TO TALK TO MR. JAFFE ABOUT UNION MATTERS.  THE USE OF EQUIPMENT AND
 VISITORS IS COVERED BY ARTICLES 6 /3/ AND 14 OF THE MULTI-DISTRICT
 AGREEMENT, RESPECTIVELY.
 
    ARTICLE 14 OF THE MULTI-DISTRICT AGREEMENT PROVIDES THAT RESPONDENT
 WOULD SUPPLY CERTAIN FACILITIES AND SERVICES TO THE UNION.  THE USE OF
 TYPEWRITERS WAS NOT PROVIDED FOR IN THE MOST RECENT COLLECTIVE
 BARGAINING AGREEMENT, OR IN THE TWO EARLIER NEGOTIATED AGREEMENTS
 BETWEEN THE PARTIES.  THE FACILITIES INCLUDED IN ARTICLE 14 WHICH WERE
 TO BE MADE AVAILABLE TO THE UNION INCLUDED TELEPHONES, BULLETIN BOARDS,
 FILE CABINETS, SPACE, AND CERTAIN MATERIALS, PUBLICATIONS AND SERVICES.
 
    FOLLOWING THE MEETING, MR. LURIE WROTE A MEMORANDUM TO JAFFE SETTING
 FORTH RESPONDENT'S UNDERSTANDING OF THE AGREEMENT.  THE MEMORANDUM
 DATED
 OCTOBER 11, 1979 STATED IN PART:
 
    IT IS UNDERSTOOD THAT YOUR UNION ACTIVITIES (DURING WORK TIME) WILL
 BE RESTRICTED TO THE
 
    TIMES WHEN YOU ARE USING BANK TIME, ADMINISTRATIVE TIME FOR MEETINGS
 WITH MANAGEMENT, OR OTHER
 
    TIMES SPECIFICALLY GRANTED BY THE AGREEMENT.  I WILL NOT ALLOW
 VISITORS IN THE WORK AREA FOR
 
    DISCUSSIONS OF UNION BUSINESS.  ALSO, TELEPHONE DISCUSSIONS REGARDING
 UNION ADMINISTRATIVE
 
    BUSINESS WILL BE VERY LIMITED.  NO TIME WILL BE ALLOWED FOR INTERNAL
 UNION AFFAIRS.
 
    AND THAT:
 
    ALSO, THE USE OF GOVERNMENT TYPEWRITERS OR OTHER EQUIPMENT FOR THE
 PREPARATION OF UNION
 
    ADMINISTRATIVE DOCUMENTS IS NOT PERMITTED.
 
    AFTER RECEIPT OF THE MEMORANDUM, MR. JAFFE MADE NO REQUEST TO BARGAIN
 CONCERNING ANY OF THE MATTERS IN THE MEMORANDUM OR THE MATTERS DISCUSSED
 DURING THE OCTOBER 11, 1979 MEETING.
 
    THE RECORD INDICATES THAT IN POLICING OF RESTRICTED PROVISIONS OF THE
 COLLECTIVE BARGAINING AGREEMENTS, PARTICULARLY ARTICLE 14, WAS
 CONSIDERED BY RESPONDENT TO BE A PROBLEM OF SIGNIFICANCE THROUGHOUT THE
 CLEVELAND DISTRICT.  IN SEEKING TO CLARIFY ITS POSITION, RESPONDENT
 CONDUCTED A SERIES OF TRAINING SESSIONS TO INSTRUCT ITS MANAGERS
 CONCERNING THE SPECIFIC FACILITIES AND SERVICES WHICH MIGHT BE MADE
 AVAILABLE TO THE UNION UNDER THE TERMS OF THE AGREEMENT.  WITH RESPECT
 TO POLICING THE SYSTEM ENUNCIATED BY THE COLLECTIVE BARGAINING
 AGREEMENT, MANAGEMENT TOOK THE POSITION THAT THE UNION WAS AWARE OF THE
 LIMITATIONS APPROVED IN THOSE AGREEMENTS, AND THAT ALL CLEVELAND
 DISTRICT MANAGERS SHOULD ENFORCE THE POLICY.  HOWEVER, IT WAS FELT THAT
 COMPLIANCE WITH THE RESTRICTED PROVISIONS IN THE AGREEMENT, RATHER THAN
 SUSPICION AND DISTRUST, SHOULD BE ANTICIPATED.  RESPONDENT'S MANAGERS
 WERE NOT GIVEN AUTHORITY TO MODIFY THE TERMS OF THE COLLECTIVE
 BARGAINING AGREEMENT.
 
    THE RECORD REVEALED THAT THE UNION CONTINUED TO USE TYPEWRITERS,
 PHOTOCOPYING EQUIPMENT AND MAYBE OTHER OFFICE EQUIPMENT NOT AUTHORIZED
 BY THE COLLECTIVE BARGAINING AGREEMENT, AT THE CLEVELAND DISTRICT OFFICE
 DURING THE YEARS FOLLOWING EXECUTION OF THE FIRST COLLECTIVE BARGAINING
 AGREEMENT, DESPITE THE LIMITATIONS IMPOSED BY THE CONTRACTUAL PROVISIONS
 AND THE POLICY OF THE RESPONDENT.  THERE IS CONSIDERABLE EVIDENCE OF
 ACTUAL USE OF AND CIRCUMSTANTIAL EVIDENCE TENDING TO INDICATE THAT
 MANAGERS AT THE CLEVELAND DISTRICT OFFICE LEVEL WOULD HAVE BEEN IN A
 POSITION TO OBSERVE USE OF SUCH EQUIPMENT, BUT NO EVIDENCE OF LIMITED
 APPROVAL OF THE PRACTICE DURING THE PERIOD BEFORE AND AFTER EXECUTION OF
 THE INITIAL COLLECTIVE BARGAINING AGREEMENT BETWEEN THE PARTIES, THE
 RECORD ESTABLISHED AND RESPONDENT RELIES IN PART ON THE FACT THAT, THE
 JOINT CHAPTER WAS AWARE OF THE CLEVELAND DISTRICT OFFICE POLICY.
 RESPONDENT ASSERTS THAT THE LOCAL CHAPTERS WERE MADE AWARE OF ITS
 POLICIES THROUGH THE JOINT CHAPTER.
 
    FORMER CHAPTER 37 PRESIDENT, MR. MIKE RUGGIERI, TESTIFIED THAT DURING
 1973 AND 1974 CO-WORKERS "ALWAYS" CAME INTO HIS WORK AREA FOR DISCUSSION
 OF UNION BUSINESS.  WHILE THE FREQUENCY OF THESE VISITS VARIED, IT WAS
 NOT UNUSUAL FOR EMPLOYEES TO VISIT HIS WORK AREA TWO OR THREE TIMES IN A
 DAY.  HE TESTIFIED THAT HE DID NOT USE TYPEWRITERS BECAUSE HE COULD NOT
 TYPE.  HOWEVER, HE HAD OTHER OF RESPONDENT'S EMPLOYEES USE ITS
 TYPEWRITERS ON BEHALF OF THE UNION ON MANY OCCASIONS.  THE UNION'S
 NEWSLETTER WAS REGULARLY TYPED ON RESPONDENT'S TYPEWRITER BY AN
 EMPLOYEE
 WHO WAS ON BREAK TIME, LUNCH TIME, AND BEFORE OR AFTER WORK.
 
    MR. JAFFE TESTIFIED THAT HE USED RESPONDENT'S TYPEWRITERS DURING THE
 NORMAL COURSE OF HIS DUTY.  HE TESTIFIED THAT ALTHOUGH HE USED A
 TYPEWRITER OCCASIONALLY TO TYPE UNION BUSINESS, HE AT NO TIME REQUESTED
 PERMISSION TO DO SO FROM MANAGEMENT PERSONNEL.  FURTHER, MR. JAFFE
 TESTIFIED THAT NO RESTRICTIONS WERE PLACED ON THE PRACTICE OF USING
 RESPONDENT'S TYPEWRITERS OR HAVING VISITORS IN HIS WORK AREA UNTIL
 SHORTLY BEFORE THE OCTOBER 11, 1979 MEETING.
 
    FORMER JOINT COUNCIL CHAIRMAN, MR. WALTER KERR, TESTIFIED THAT HE AT
 TIMES USED RESPONDENT'S TYPEWRITERS TO TYPE UNION BUSINESS.  HOWEVER, HE
 TESTIFIED THAT HE DID NOT REQUEST PERMISSION TO USE SUCH EQUIPMENT FOR
 UNION PURPOSES.
 
    MR. MIKE SWEENEY, A FORMER CHIEF STEWARD FOR THE JOINT CHAPTERS,
 TESTIFIED THAT HE USED RESPONDENT'S TYPEWRITERS TO TYPE UNION BUSINESS.
 ACCORDING TO SWEENEY, AT NO TIME DID HE REQUEST PERMISSION FROM
 MANAGEMENT TO USE THE TYPEWRITERS FOR THAT PURPOSE.  HOWEVER, MR. BYRON
 WAGNER, A FORMER SUPERVISOR OF MR. SWEENEY, TESTIFIED THAT ON NUMEROUS
 OCCASIONS HE INFORMED MR. SWEENEY THAT THE UNION'S USE OF GOVERNMENT
 FACILITIES AND EQUIPMENT IN THE SPECIAL PROCEDURES STAFF AREA WAS
 SPECIFICALLY PROHIBITED.  MR. WAGNER RELATED TWO OCCASIONS IN WHICH
 SPACE WAS IN FACT REQUESTED BY MR. SWEENEY BUT SUCH REQUESTS WERE
 DENIED.
 
    AN EX-IRS EMPLOYEE, MS. DOROTHY FINGEAN, TESTIFIED THAT SHE TYPED
 UNION BUSINESS ON RESPONDENT'S TYPEWRITERS.  ALSO, SHE TESTIFIED THAT ON
 THE AVERAGE SHE MAY HAVE TYPED ONE OR TWO ITEMS A MONTH, BUT ALSO THERE
 WERE SOME MONTHS SHE DID NO TYPING AT ALL FOR THE UNION.  IN THE NORMAL
 COURSE OF HER DUTY SHE TYPED RESPONDENT'S BUSINESS ON A DAILY BASIS FOR
 VARIOUS INDIVIDUALS IN THE GROUP TO WHICH SHE WAS ASSIGNED.  SHE HAD AT
 NO TIME ASKED FOR PERMISSION TO USE RESPONDENT'S TYPEWRITERS FOR UNION
 PURPOSES.  ACCORDING TO MS. FINGEAN THERE WAS NO WAY FOR MANAGEMENT TO
 DISTINGUISH WHEN SHE WAS TYPING UNION BUSINESS OR TYPING RESPONDENT'S
 BUSINESS.  SHE ALSO COULD NOT CITE ANY SPECIFIC INSTANCES WHEN SHE HAD
 USED RESPONDENT'S TYPEWRITERS FOR UNION BUSINESS WHICH WAS OBSERVED BY
 ANY MANAGEMENT OFFICIAL.
 
    RESPONDENT CALLED SEVERAL OF ITS MANAGEMENT PERSONNEL TO TESTIFY AS
 TO THEIR UNDERSTANDING OF WHAT FACILITIES AND EQUIPMENT SHOULD BE MADE
 AVAILABLE TO THE UNION UNDER THE COLLECTIVE BARGAINING AGREEMENT.  WHILE
 THESE INDIVIDUALS WERE NOT CERTAIN AS TO WHAT EQUIPMENT SHOULD BE MADE
 AVAILABLE, NONE TESTIFIED THAT IRS TYPEWRITERS COULD BE USED BY THE
 UNION OR THAT THEY EVER GAVE PERMISSION FOR SUCH USAGE.
 
    WITH REGARD TO VISITS TO UNION REPRESENTATIVES' WORK AREAS, MIKE
 SWEENEY, CHIEF STEWARD, TESTIFIED THAT HE HAD FREQUENT VISITS TO HIS
 WORK AREA FROM EMPLOYEES COMING TO SEE HIM ON UNION BUSINESS IN HIS
 OFFICIAL UNION CAPACITY.  WALTER KERR ALSO TESTIFIED THAT EMPLOYEES
 VISITED HIM FIVE OR SIX TIMES PER WEEK WITH REGARD TO UNION BUSINESS.
 NEITHER SWEENEY OR KERR SOUGHT MANAGEMENT'S PERMISSION TO ADDRESS THESE
 EMPLOYEES ON UNION BUSINESS IN THEIR WORK AREAS.
 
    ACCORDING TO MR. JAFFE, THE FIRST INDICATION OF A CHANGE IN
 MANAGEMENT'S POSITION WITH REGARD TO UNION VISITS OCCURRED SHORTLY AFTER
 OCTOBER 1, 1979 WHEN HE WAS ELECTED PRESIDENT OF CHAPTER 37.  MR. JAFFE
 TESTIFIED THAT HE DID NOT SEEK OR REQUEST PERMISSION FROM MANAGEMENT TO
 CONDUCT INFORMAL DISCUSSIONS IN COMPLIANCE WITH THE MULTI-DISTRICT
 AGREEMENT BECAUSE, THE AMOUNT OF TIME TAKEN WAS MINIMAL AND "IT WOULD
 HAVE TAKEN LONGER TO HUNT UP A MANAGER, GO IN TO SEE HIM AND ASK
 PERMISSION THAN IT WOULD HAVE TAKEN FOR THE DISCUSSION TO TAKE PLACE."
 MR. LURIE TESTIFIED THAT HE TOLD MR. JAFFE THAT HE "FELT THAT PEOPLE
 COMING INTO THE AREA, BECAUSE WE ARE IN AN OPEN AREA CONCEPT THAT IT WAS
 DISRUPTIVE TO THE REST OF THE PEOPLE AND DO NOT FEEL IT WAS NECESSARY."
 JAFFE OBJECTED TO LURIE'S POSITION BECAUSE HE FELT THAT THESE ACTIVITIES
 WERE PAST PRACTICES IN THE CLEVELAND DISTRICT OFFICE.
 
    THERE IS NO RECORD EVIDENCE THAT MANAGEMENT WAS AWARE OF THE
 VISITATIONS FOR UNION PURPOSES PRIOR TO AUGUST 1979, WHEN MR. JAFFE WAS
 FIRST REPRIMANDED FOR DISCUSSING UNION ACTIVITY IN THE WORK AREA.  WITH
 REGARD TO THE REPRIMAND, MR. WAGNER TOLD MR. JAFFE HE WOULD NOT CONDUCT
 SUCH DISCUSSIONS IN HIS WORK AREA, BUT THAT THEY SHOULD "BE CONDUCTED IN
 AN AREA WHERE THE GRIEVANT WAS ASSIGNED." FURTHERMORE, IT WAS INDICATED
 TO MR. JAFFE THAT THESE DISCUSSIONS SHOULD BE HELD TO A MINIMUM.
 FINALLY, THE AGREEMENT PROVIDES UNDER ARTICLE 14 THAT SPACE WILL BE
 PROVIDED FOR "CONDUCTING INFORMAL DISCUSSIONS." THUS, THERE IS NO RECORD
 EVIDENCE TO SUPPORT THE PROPOSITION THAT THE UNION EITHER SOUGHT OR WAS
 GIVEN PERMISSION TO CONDUCT ITS BUSINESS IN A WORK AREA.
 
                        DISCUSSION AND CONCLUSIONS
 
    AT THE OUTSET, RESPONDENT URGED THAT THE ALLEGATIONS OF THE COMPLAINT
 INVOLVING THE UNION'S USE OF EQUIPMENT BE DISMISSED ON THE BASIS OF RES
 JUDICATA.  RESPONDENT RELIES ON A DECISION ISSUED BY ADMINISTRATIVE LAW
 JUDGE SCALZO IN DEPARTMENT OF TREASURY REVENUE SERVICE CLEVELAND, OHIO,
 3 FLRA NO. 106 DISMISSING SUCH ALLEGATIONS IN RESPONDENT'S TOLEDO POST
 OF DUTY, WHICH IS A PART OF THE CLEVELAND DISTRICT OFFICE.  SUBSEQUENT
 OF THE HEARING IN THIS MATTER, JUDGE SACLZO'S DECISION WAS AFFIRMED BY
 THE FEDERAL LABOR RELATIONS AUTHORITY.  HOWEVER, IN ITS DECISION AND
 ORDER THE AUTHORITY NOTED THAT IT WAS RELYING ONLY ON "INCIDENTS WHICH
 OCCURRED AT OR INVOLVED INDIVIDUALS IN THE TOLEDO POST OF DUTY." HAVING
 DONE SO, THE AUTHORITY LEFT OPEN FOR CONSIDERATION WHETHER PAST
 PRACTICES HAD BEEN ESTABLISHED IN OTHER PARTS OF THE CLEVELAND DISTRICT
 AND INDEED IN THE CLEVELAND DISTRICT OFFICE.  SINCE IT IS CLEAR THAT NO
 DECISION HAS BEEN MADE ON THE ISSUES INVOLVING THE CLEVELAND DISTRICT
 OFFICE THE MATTER IS STILL LITIGABLE AND RES JUDICATA DOES NOT APPLY.
 
    ALTHOUGH THIS MATTER INVOLVES ADDITIONAL ALLEGATIONS, THE BASIC ISSUE
 REGARDING USE OF EQUIPMENT IS WHETHER, UNDER THE CIRCUMSTANCES, A
 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 WITH AN OPPORTUNITY TO
 BARGAIN CONCERNING WHETHER OR NOT THE PRACTICE SHOULD BE DISCONTINUED.
 IN ADDITION, THE ISSUE OF WHETHER OR NOT A PAST PRACTICE EXISTED WITH
 RESPECT TO DISCUSSION OF UNION BUSINESS IN WORK AREAS IS CONSISTENT WITH
 THE PAST PRACTICES OF THE CLEVELAND DISTRICT OFFICE.
 
    ASIDE FROM THE AUTHORITY'S DECISION IN DEPARTMENT OF TREASURY,
 INTERNAL REVENUE SERVICE, CLEVELAND, OHIO, SUPRA., SEVERAL OTHER
 INTERNAL REVENUE SERVICE CASES EXIST WHICH INVOLVE THE SAME OR SIMILAR
 CONTRACT, LANGUAGE AND THE ESTABLISHMENT OF PAST PRACTICES.  THESE
 CASES, U.S. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, NEW
 ORLEANS, LOUISIANA, A/SLMR NO. 1034 (1978) AND U.S. DEPARTMENT OF
 TREASURY, INTERNAL REVENUE SERVICE, SOUTHWEST REGION, APPELLATE BRANCH
 OFFICE, NEW ORLEANS, LOUISIANA, A/SLMR NO. 1153 (1978) ARE HEAVILY
 RELIED ON BY THE GENERAL COUNSEL TO ESTABLISH A THEORY OF VIOLATION IN
 THIS MATTER WITH REGARD TO THE USE OF EQUIPMENT, SPECIFICALLY
 TYPEWRITERS.  WITH RESPECT TO THE ABOVE CITED CASES, IT IS NOTED THAT
 THE PAST PRACTICE THEREIN WAS CLEARLY ESTABLISHED AND THAT THE USE OF
 TYPEWRITERS WAS PERMITTED BY AGENCY MANAGEMENT.  IN FINDING VIOLATIONS
 IN THOSE MATTERS, THE ADMINISTRATIVE LAW JUDGES INVOLVED ALL FOUND
 IMPLICIT KNOWLEDGE AND APPROVAL OF THE SPECIFIC USE OF THE TYPEWRITERS
 FOR UNION BUSINESS.  IT WAS CLEARLY ESTABLISHED ON THE RECORD IN THOSE
 MATTERS THAT MANAGEMENT WAS AWARE OF AND CONDONED THE USE OF ITS
 FACILITIES AND EQUIPMENT FOR A RATHER EXTENSIVE PERIOD OF TIME.
 
    THERE IS NO EVIDENCE IN THIS RECORD TO SUPPORT A FINDING THAT THE USE
 OF TYPEWRITERS OR OTHER AGENCY EQUIPMENT WAS ALLOWED BY AGENCY
 MANAGEMENT.  WHILE THE EVIDENCE IMPLIES THAT THERE WAS SUCH USAGE
 ALLOWED PRIOR TO THE PARTIES ENTERING INTO THE MULTI-DISTRICT AGREEMENT
 IN 1972, THE EVIDENCE OF USE THEREAFTER IS QUITE THE CONTRARY.  IT IS,
 HOWEVER, SHOWN THAT THE DISTRICT DIRECTORS OF THE CLEVELAND DISTRICT
 HAVE ALWAYS INDICATED THAT THE UNION WOULD BE ABLE TO USE ONLY THOSE
 FACILITIES AND SERVICES IDENTIFIED IN THE COLLECTIVE BARGAINING
 AGREEMENT AND THAT SUCH OTHER USE WAS PROHIBITED.  THE RECORD DISCLOSED
 THAT MR. SWEENEY, THE CHIEF STEWARD FOR THE CLEVELAND DISTRICT, WAS
 AWARE THAT THERE WAS A PROHIBITION AGAINST THE USE OF TYPEWRITERS IN THE
 CLEVELAND DISTRICT.  IN MY VIEW, WHERE SUCH A HIGH UNION OFFICIAL HAS
 KNOWLEDGE OF THE POLICY IT IS UNNECESSARY TO RELY AS RESPONDENT DOES IN
 ITS BRIEF, ON AN AGENCY RELATIONSHIP TO ESTABLISH THAT ITS POLICY WAS IN
 EXISTENCE AND KNOWN TO THE UNION.  IT IS ALSO CLEARLY SHOWN FROM THE
 RECORD THAT MANAGEMENT CONDUCTED TRAINING WHICH INDICATED TO ITS
 MANAGERS AND SUPERVISORS THAT THE UNION IN THE CLEVELAND DISTRICT WOULD
 ONLY BE ABLE TO USE THOSE FACILITIES SET OUT IN THE AGREEMENT BETWEEN
 THE PARTIES.  ALL INDICATIONS ARE THAT NOT ONLY WAS THIS INFORMATION
 PASSED ON TO JOINT CHAPTER OFFICIALS BUT, INDEED CLEVELAND LOCAL UNION
 OFFICIALS, INCLUDING MR.  SWEENEY, WERE MADE AWARE OF MANAGEMENT'S
 POSITION CONCERNING THE USE OF TYPEWRITERS.
 
    WHILE THE RECORD REFLECTS THAT THE UNION USED THE EQUIPMENT REGULARLY
 IT DOES NOT ESTABLISH THAT MANAGEMENT WAS AWARE OF OR CONDONED THIS
 USAGE.  MANY OF THE INDIVIDUALS WHO TESTIFIED REGULARLY USED TYPEWRITERS
 AND OTHER EQUIPMENT IN THEIR OFFICIAL DUTIES AND BECAUSE MANAGEMENT
 APPARENTLY RELIED HEAVILY UPON VOLUNTARY COMPLIANCE THERE WOULD BE NO
 REASON TO FIND THAT IT HAD OBSERVED THE PRACTICE OF USING ITS FACILITIES
 OR EQUIPMENT FOR OTHER THAN OFFICIAL BUSINESS.  FROM THE RECORD IT IS
 REASONABLE FOR MANAGEMENT TO ASSUME THAT THE UNION HAD RESPONDED TO ITS
 REQUEST TO DISCONTINUE USE OF EQUIPMENT.  THERE IS NO INDICATION THAT
 THE UNION DISAGREED WITH RESPONDENT'S MARCH 1978 ANNOUNCEMENT REGARDING
 THE USE OF EQUIPMENT MAKING IT APPEAR THAT THE UNION ACQUIESCED IN THIS
 ANNOUNCEMENT.  THIS RECORD ALSO INDICATES THAT MANAGEMENT EXPECTED
 VOLUNTARY COMPLIANCE AND, AS IN JUDGE SCALZO'S OBSERVATION, THAT:
 
    FINALLY, IN ADDITION TO THE FACT THAT THE RECORD EVIDENCES NO SHOWING
 OF ACTUAL AWARENESS
 
    OF THE PAST PRACTICE . . . THERE WAS NO SHOWING OF CIRCUMSTANCES
 WHICH REASONABLY WOULD HAVE
 
    LED TO AWARENESS.  IT WOULD HAVE NOT BEEN UNUSUAL, BASED UPON THE
 FACTS BROUGHT OUT, FOR
 
    MANAGEMENT TO HAVE REMAINED IGNORANT OF THE PRACTICE. . . .
 
    THIS APPLIES EQUALLY IN THE INSTANT MATTER.  DISTRICT LEVEL AND
 DISTRICT OFFICE OFFICIALS IN CLEVELAND WERE IN CONTACT WITH BOTH JOINT
 CHAPTER AND LOCAL CHAPTER REPRESENTATIVES CONCERNING THE MATTER.  IN
 THEIR DIRECT DEALINGS WITH THESE INDIVIDUAL UNION REPRESENTATIVES IT
 SHOULD HAVE BEEN CLEAR THAT THERE WAS A SPECIFIC PRACTICE NOT TO USE
 SUCH EQUIPMENT.  IN SUCH CIRCUMSTANCES, IT CANNOT BE ESTABLISHED, AS
 ARGUED BY THE GENERAL COUNSEL, THAT THERE WAS AGREEMENT TO THE USE OF
 THE EQUIPMENT, OR AN ESTABLISHED PRACTICE OF EQUIPMENT USE WHICH
 MANAGEMENT WAS AWARE OF AND ACQUIESCED IN.  ON THE CONTRARY, THE RECORD
 INDICATES THAT RESPONDENT'S EFFORTS WERE DIRECTED AT PREVENTING THE
 UNION FROM USING FACILITIES AND EQUIPMENT BEYOND THOSE SPECIFIED IN THE
 MULTI-DISTRICT AGREEMENT.
 
    REGARDING THE DISCUSSION OF UNION BUSINESS IN WORK AREAS, THERE IS
 ALSO NO INDICATION THAT MANAGEMENT WAS AWARE PRIOR TO AUGUST 19, 1979,
 THAT SUCH DISCUSSIONS OR VISITATIONS WERE TAKING PLACE.  FURTHERMORE,
 WHEN MANAGEMENT OFFICIALS BECAME AWARE THEY IMMEDIATELY TOOK STEPS TO
 PREVENT OR CURTAIL FURTHER DISCUSSIONS.  FOR EXAMPLE, MR. JAFFE WAS
 REPRIMANDED ON AUGUST 19, 1979 FOR ENGAGING IN SUCH A DISCUSSION IN HIS
 WORK AREA.  NEITHER DO I FIND THAT THE EXISTENCE OF A WORK LOG GAVE ANY
 FURTHER KNOWLEDGE TO RESPONDENT THAT SUCH DISCUSSIONS WERE TAKING PLACE
 SINCE IT APPEARS FROM THE RECORD THAT THE LOG WAS KEPT FOR OTHER
 PURPOSES.
 
    FINALLY, ALTHOUGH THE EVIDENCE SHOWS THAT INDIVIDUAL MANAGERS MAY
 HAVE DEVELOPED KNOWLEDGE OF THE UNION'S ACTIONS HAD THEY BEEN MORE
 OBSERVANT OR INQUIRED MORE THOROUGHLY INTO THE NATURE OF VISITS TO UNION
 REPRESENTATIVES, THIS WOULD NOT PROVIDE A BASIS FOR FINDING THAT SUCH
 MANAGERS WERE IN FACT AWARE OF THE PRACTICES ALLEGED TO HAVE EXISTED.
 THUS, I WOULD NOT FIND THE FACT THAT VISITS TO UNION REPRESENTATIVES IN
 THEIR WORK AREAS STANDING ALONE AND WITHOUT PERMISSION OF RESPONDENT'S
 OFFICIALS CONSTITUTED ANY KNOWLEDGE OF OR EXISTENCE OF A PAST PRACTICE.
 
    THE ACTIONS OF MANAGEMENT OFFICIALS IN PREVENTING THE USE OF
 EQUIPMENT AND THE PREVENTION OF DISCUSSION OF UNION BUSINESS WAS MERELY
 A REAFFIRMATION OF THE EXISTING POLICY WITHIN THE CLEVELAND DISTRICT
 OFFICE.  THE REAFFIRMATION OF AN EXISTING POLICY ACCORDING TO EXISTING
 CASE LAW IS NOT A CHANGE IN CONDITIONS OF EMPLOYMENT.  DEPARTMENT OF
 NAVY, MARE ISLAND NAVAL SHIPYARD, VALLEJO, CALIFORNIA, A/SLMR NO.
 736(1976);  ALABAMA NATIONAL GUARD, MONTGOMERY, ALABAMA, A/SLMR NO. 895
 (1977).  THEREFORE, THE UNION'S FAILURE TO COMPLY WITH RESPONDENT'S
 EXPRESSION OF ITS POLICY MAY NOT, WITHOUT MORE, BE USED AS A BASIS FOR
 PROOF OF THE EXISTENCE OF A PAST PRACTICE IN JUSTIFYING THE USE OF
 FACILITIES OR USE OF WORK AREAS FOR DISCUSSION OF UNION BUSINESS.
 
    BASED ON THE FOREGOING IT IS UNNECESSARY TO ADDRESS OTHER ISSUES
 RAISED IN DEFENSE BY RESPONDENT.
 
    HAVING FOUND AND CONCLUDED THAT RESPONDENT DID NOT VIOLATE THE
 STATUTE AS ALLEGED, IT IS RECOMMENDED THAT THE FEDERAL LABOR RELATIONS
 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. 5-CA-308 BE AND
 IT HEREBY IS DISMISSED.
 
                              ELI NASH, JR.
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  SEPTEMBER 15, 1980
 
    WASHINGTON, D.C.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SEE ALSO, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REGION V.,
 CHICAGO, ILLINOIS, 4 FLRA NO. 98(1980).
 
    /2/ SEE, U.S. NUCLEAR REGULATORY COMMISSION, 6 FLRA NO. 9(1981).
 
    /3/ ARTICLE 6 READS IN PERTINENT PART:
 
    B.  A STEWARD, CHIEF STEWARD, OR CHAPTER PRESIDENT OF JOINT COUNCIL
 CHAIRMAN WHEN
 
    APPLICABLE MAY UTILIZE OFFICIAL TIME, HEREINAFTER REFERRED TO AS
 INDIVIDUAL BANK TIME, TO
 
    CONFER WITH AN AFFECTED EMPLOYEE WITH RESPECT TO ANY MATTERS FOR
 WHICH REMEDIAL RELIEF MAY BE
 
    SOUGHT PURSUANT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
 
    C.  1. IN ADDITION TO THE TIME PROVIDED UNDER SUBSECTION B ABOVE, A
 UNION STEWARD, CHIEF
 
    STEWARD OR CHAPTER PRESIDENT OR JOINT COUNCIL CHAIRMAN, WHEN
 APPLICABLE, MAY UTILIZE OFFICIAL
 
    TIME HEREINAFTER REFERRED TO AS CHAPTER BANK TIME, AS PROVIDED IN 2
 BELOW FOR THE FOLLOWING:
 
    (A) PREPARING GRIEVANCES;
 
    (B) INTERVIEWING WITNESSES, EXCEPT AS MAY BE PROVIDED IN F BELOW;
 
    (C) REVIEWING DOCUMENTS WHICH ARE NOT AVAILABLE DURING NON-DUTY
 HOURS, EXCEPT AS MAY BE
 
    PROVIDED IN F BELOW;
 
    (D) PREPARING A REPLY TO A NOTICE OF PROPOSED DISCIPLINARY ACTION OR
 A DISCIPLINARY ACTION
 
    APPEAL OR FOR ANY MATTER FOR WHICH A STATUTORY APPEALS PROCEDURE
 (OTHER THAN THOSE SPECIFIED
 
    IN F BELOW) EXISTS.