Internal Revenue Service and Brookhaven Service Center (Respondent) and National Treasury Employees Union and National Treasury Employees Union, Chapter 99 (Charging Party)



[ v06 p713 ]
06:0713(127)CA
The decision of the Authority follows:


 6 FLRA No. 127
 
 INTERNAL REVENUE SERVICE
 AND BROOKHAVEN SERVICE CENTER
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NATIONAL TREASURY EMPLOYEES
 UNION, CHAPTER 99
 Charging Party
 
                                            Case No. 2-CA-36
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED RECOMMENDED DECISION
 AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT
 HAD ENGAGED IN UNFAIR LABOR PRACTICES UNDER EXECUTIVE ORDER 11491, AS
 AMENDED, ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT IT CEASE AND
 DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION.  THEREAFTER, THE
 RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S RECOMMENDED DECISION AND
 ORDER.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
 WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
 PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2423.1 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.1).  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 (THE STATUTE).
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
 REVIEWED THE RULINGS OF THE JUDGE MADE AT THE HEARING AND FINDS NO
 PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  UPON
 CONSIDERATION OF THE JUDGE'S RECOMMENDED DECISION AND ORDER AND THE
 ENTIRE RECORD IN THIS CASE, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S
 FINDINGS, CONCLUSIONS AND RECOMMENDATIONS REGARDING THE OCTOBER 18, AND
 NOVEMBER 17, 1978 MEETINGS.  HOWEVER, CONTRARY TO THE JUDGE, THE
 AUTHORITY HAS DETERMINED THAT THE RECORD DOES NOT CONTAIN SUFFICIENT
 EVIDENCE TO SUPPORT A FINDING THAT AN UNFAIR LABOR PRACTICE OCCURRED ON
 NOVEMBER 16, 1978.  THE AUTHORITY NOTES THAT THE GENERAL COUNSEL HAD THE
 DUTY IN THIS INSTANCE OF PROVING ITS CASE.  IN THIS REGARD, THE
 AUTHORITY FINDS THE UNION REPRESENTATIVE WAS UNABLE TO RECALL THE
 SUBJECT SHE SOUGHT TO DISCUSS THAT DATE AND MANAGEMENT HAD NO
 RECOLLECTION OF ANY SUCH MEETING.  BASED ON THE EVIDENCE PRESENTED
 HEREIN THE AUTHORITY CONCLUDES THAT A FINDING OF A VIOLATION OF THE
 EXECUTIVE ORDER WITH REGARD TO THE NOVEMBER 16, 1978 MEETING IS NOT
 WARRANTED.  ACCORDINGLY, THE AUTHORITY DOES NOT ADOPT THE JUDGE'S
 FINDINGS, CONCLUSIONS AND RECOMMENDATIONS IN THAT REGARD.  THE SECTION
 OF THE COMPLAINT REGARDING EVENTS OF THAT DATE IS HEREBY DISMISSED.  /1/
 
                                   ORDER
 
    PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2400.2) AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HEREBY
 ORDERS THAT THE INTERNAL REVENUE SERVICE, BROOKHAVEN SERVICE CENTER,
 SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) PROHIBITING THE NATIONAL TREASURY EMPLOYEES UNION (NTEU) AND
 NTEU, CHAPTER 99 FROM HAVING MORE THAN ONE REPRESENTATIVE PRESENT AT
 FORMAL DISCUSSIONS AND AT INFORMAL MEETINGS WITH MANAGEMENT OFFICIALS AT
 THE LEVEL OF BRANCH CHIEF AND ABOVE, OR OTHERWISE CHANGING ESTABLISHED
 PAST PRACTICES AFFECTING THE WORKING CONDITIONS OF UNIT EMPLOYEES,
 WITHOUT FIRST NOTIFYING THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU,
 CHAPTER 99, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ITS EMPLOYEES,
 AND AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER ON
 SUCH MATTERS TO THE EXTENT CONSONANT WITH LAW AND REGULATION.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
 
    (A) POST AT ITS FACILITY AT THE BROOKHAVEN SERVICE CENTER COPIES OF
 THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR
 RELATIONS AUTHORITY.  UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED
 BY THE DIRECTOR, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
 BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
 CUSTOMARILY POSTED.  THE DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE
 THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    (B) NOTIFY THE REGIONAL DIRECTOR, REGION II, FEDERAL LABOR RELATIONS
 AUTHORITY IN WRITING WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO
 WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 29, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
           PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 
            RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
 
          POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
 
              CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT PROHIBIT THE NATIONAL TREASURY EMPLOYEES UNION (NTEU) AND
 NTEU, CHAPTER 99 FROM HAVING MORE THAN ONE REPRESENTATIVE PRESENT AT
 FORMAL DISCUSSIONS AND AT INFORMAL MEETINGS WITH MANAGEMENT OFFICIALS AT
 THE LEVEL OF BRANCH CHIEF OR ABOVE, OR OTHERWISE CHANGE ESTABLISHED PAST
 PRACTICES AFFECTING THE WORKING CONDITIONS OF UNIT EMPLOYEES, WITHOUT
 FIRST NOTIFYING THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU, CHAPTER
 99, THE EXCLUSIVE BARGAINING REPRESENTATIVE OF OUR EMPLOYEES, AND
 AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER ON SUCH
 MATTERS TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  . . .  BY . . .
 
                                (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, REGION II, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
 ADDRESS IS:  ROME 241, 26 FEDERAL PLAZA, NEW, NY, 10007, AND WHOSE
 TELEPHONE NUMBER IS:  (212) 264-4934.
 
 
 
 
 
 -------------------- ALJ DECISION FOLLOWS --------------------
 
    ROBERT F. HERMANN, ESQUIRE
    FOR THE RESPONDENT
 
    JAMES E. PETRUCCI, ESQUIRE
    RONI SCHNITZER, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    PETER M. CONROY, ESQUIRE
    FOR THE CHARGING PARTY
 
    BEFORE:  GARVIN LEE OLIVER
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS CASE AROSE AS A RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT
 DATED JANUARY 31, 1980 FILED BY THE REGIONAL DIRECTOR, REGION 2, FEDERAL
 LABOR RELATIONS AUTHORITY, NEW YORK, NEW YORK, AGAINST THE INTERNAL
 REVENUE SERVICE AND BROOKHAVEN SERVICE CENTER (RESPONDENT).
 
    THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED
 SECTIONS 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED, (THE
 ORDER) ON OR ABOUT OCTOBER 18, NOVEMBER 16 AND NOVEMBER 17, 1978, BY
 REFUSING TO PERMIT MORE THAN ONE REPRESENTATIVE OF THE NATIONAL TREASURY
 EMPLOYEES UNION (NTEU) AND NTEU, CHAPTER 99 (CHARGING PARTY OR UNION) TO
 BE PRESENT AT FORMAL DISCUSSIONS WITHIN THE MEANING OF SECTION 10(E) OF
 THE ORDER, AND AT INFORMAL MEETINGS WITH MANAGEMENT OFFICIALS AT THE
 LEVEL OF BRANCH CHIEF OR ABOVE.  THE COMPLAINT ALLEGED THAT SUCH CONDUCT
 CONSTITUTED A UNILATERAL CHANGE IN EXISTING PRACTICES WITHOUT NOTICE TO
 THE CHARGING PARTY.  RESPONDENT DENIED THE ALLEGATIONS.
 
    A HEARING WAS HELD IN THIS MATTER IN HOLTSVILLE, NEW YORK.  THE
 RESPONDENT, GENERAL COUNSEL AND CHARGING PARTY WERE REPRESENTED BY
 COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT
 EVIDENCE, EXAMINE AND CROSS-EXAMINE WITNESSES, AND FILE POST-HEARING
 BRIEFS.
 
    BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
 ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
 FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    1.  THE NATIONAL TREASURY EMPLOYEES UNION AND THE INTERNAL REVENUE
 SERVICE WERE, AT ALL RELEVANT TIMES, PARTIES TO A COLLECTIVE BARGAINING
 AGREEMENT COVERING A CONSOLIDATED BARGAINING UNIT WHICH INCLUDES
 EMPLOYEES OF THE BROOKHAVEN SERVICE CENTER.  (JOINT EX. 1).  THE
 BROOKHAVEN SERVICE CENTER IS HEADED BY A DIRECTOR, ASSISTED BY AN
 ASSISTANT DIRECTOR.  OTHER MANAGEMENT REPRESENTATIVES, IN DESCENDING
 ORDER UNDER THE DIRECTOR, ARE DIVISION CHIEFS, BRANCH CHIEFS, SECTION
 CHIEFS, AND UNIT SUPERVISORS.  (TR. 280).
 
    2.  THE MULTI-CENTER AGREEMENT (MCA), WHICH BECAME EFFECTIVE IN
 OCTOBER 1975, CONTAINS A NUMBER OF PROVISIONS RELEVANT TO THE
 UTILIZATION OF OFFICIAL TIME FOR REPRESENTATIONAL PURPOSES, THE RIGHT OF
 THE UNION TO BE PRESENT AT CERTAIN MEETING, AND THE NUMBER OF
 PARTICIPANTS WHO WILL RECEIVE NOTICE OF AND ATTEND CERTAIN MEETINGS WITH
 MANAGEMENT.  SEE ARTICLES 3, 5, 30, 31, 32, 33, AND 36.  (JOINT EX. 1).
 ARTICLE 36, "LABOR-MANAGEMENT RELATIONS COMMITTEE," AND ARTICLE 33,
 "GRIEVANCE PROCEDURE," OF THE MCA SPECIFY THE UNION'S RIGHT TO DESIGNATE
 MORE THAN ONE REPRESENTATIVE TO ATTEND CERTAIN MEETINGS WITH RESPONDENT
 ON OFFICIAL TIME, AND ARTICLE 32, SECTION I.D. ALLOWS AN EMPLOYEE, UPON
 REQUEST, TO BE ACCOMPANIED BY ONE UNION REPRESENTATIVE DURING
 DISCUSSIONS OF POTENTIAL ADVERSE ACTIONS WITH MANAGEMENT.
 
    3.  WITHIN SIX MONTHS OF KENNETH HART TAKING OFFICE AS PRESIDENT OF
 NTEU, CHAPTER 99 IN OCTOBER, 1975, MR. HART HAD A DISCUSSION WITH CALVIN
 LITWACK, CHIEF OF THE EMPLOYEE RELATIONS SECTION.  MR. HART CLAIMED THAT
 THE FOLLOWING ARTICLE 3B OF THE MCA WOULD PERMIT AN AREA STEWARD, AS
 WELL AS THE CHIEF STEWARD OR CHAPTER PRESIDENT, TO ATTEND MEETINGS
 CALLED BY, OR HELD WITH, A BRANCH CHIEF OR ABOVE:
 
    ARTICLE 3B
 
    THE PARTIES AGREE THAT NOTICE TO THE UNION OF A FORMAL DISCUSSION
 WILL BE SUFFICIENT IF
 
    PROVIDED TO A STEWARD APPOINTED TO REPRESENT EMPLOYEE(S) INVOLVED IN
 THE DISCUSSION;  PROVIDED,
 
    HOWEVER, THAT IF SUCH DISCUSSION IS CALLED BY A BRANCH CHIEF OR AN
 OFFICIAL OF HIGHER RANK,
 
    NOTICE OF THE DISCUSSION WILL BE PROVIDED TO THE CHIEF STEWARD OR
 CHAPTER PRESIDENT.
 
    MR. LITWACK DISAGREED AND POINTED TO ARTICLE 5, SECTION 2D, AS
 FOLLOWS, WHICH HE CONTENDED, SET A LIMITATION OF ONE STEWARD TO ATTEND
 SUCH A MEETING:
 
    ARTICLE 5, SECTION 2D
 
    A UNION STEWARD, CHIEF STEWARD OR CHAPTER PRESIDENT WILL RECEIVE
 OFFICIAL TIME TO BE
 
    PRESENT AT FORMAL OR INFORMAL DISCUSSIONS WITH THE EMPLOYER
 CONCERNING PERSONNEL POLICIES,
 
    PRACTICES AND MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
 EMPLOYEES IN THE UNIT, OR TO
 
    CARRY OUT THE GOALS AND OBJECTIVES OF EXECUTIVE ORDER 11491, AS
 AMENDED . . .
 
    (TR. 307-308, 335;  JOINT EX. 1).
 
    4.  THIS TOPIC CAME UP SUBSEQUENTLY BETWEEN MR. LITWACK AND MR.  HART
 AND BETWEEN MR. LITWACK AND ANNE TAMNEY, CHIEF STEWARD.  (TR. 308).  MR.
 LITWACK ALSO COMMUNICATED HIS VIEW TO JUDY OSLAGER, WHO SERVED AS VICE
 PRESIDENT AND CHIEF STEWARD FROM APPROXIMATELY JUNE 1977 TO JUNE 1978
 AND AS CHAPTER PRESIDENT SINCE JUNE 1, 1978.  (TR. 88-89;  171).
 
    5.  VICTOR A. SMITH, CHIEF, PERSONNEL BRANCH, ALSO INTERPRETS THE MCA
 TO PROVIDE FOR ONE UNION REPRESENTATIVE TO ATTEND MEETINGS WITH
 MANAGEMENT, EXCEPT IN THE INSTANCES SPELLED OUT IN ARTICLE 33 AND 36.
 (TR. 296-297).  HE HAS ADVISED THE UNION OF HIS INTERPRETATION OF THE
 CONTRACT (TR. 54, 171, 282), AND HAS DECLINED TO MEET WITH MULTIPLE
 UNION REPRESENTATIVES WHENEVER HE FELT, OR ASCERTAINED, THAT THE TOPIC
 TO BE DISCUSSED DID NOT REQUIRE THE ATTENDANCE OF MULTIPLE
 REPRESENTATIVES.  (TR. 282-284, 300, 302, 304-305).  HE DEALT WITH THE
 ISSUE ON A CASE-BY-CASE BASIS.  DURING HIS MEETINGS OVER THE YEARS HE
 HAS ACTUALLY MET ON MORE OCCASIONS WITH MORE THAN ONE UNION
 REPRESENTATIVE, AFTER DECIDING, OR ASCERTAINING, THAT ADDITIONAL UNION
 REPRESENTATION WOULD HELP RESOLVE A PROBLEM.  HIS DECISION TO ALLOW MORE
 THAN ONE UNION REPRESENTATIVE WAS DISCUSSED ON OCCASION, ONCE OR TWICE,
 BUT NOT IN EVERY INSTANCE.  (TR. 300-305).
 
    6.  SMITH HAS ADVISED MANAGERS OF HIS INTERPRETATION OF THE CONTRACT,
 AND THAT IT WAS IN MANAGER'S DISCRETION WHETHER OR NOT TO ALLOW MORE
 THAN ONE UNION REPRESENTATIVE TO BE PRESENT.  SMITH'S ADVICE IS
 ADVISORY.  HE DOES NOT HAVE LINE AUTHORITY OVER THE MANAGERS.  (TR.
 296-297).  IF HIS SECTION BELIEVES THAT A VIOLATION OF LAW OR REGULATION
 IS OCCURRING, IT WOULD BE NECESSARY TO GO THROUGH THE CHAIN OF COMMAND
 TO HAVE IT STRAIGHTENED OUT.  (TR. 296-297).  SMITH ACKNOWLEDGED THAT HE
 WAS A "STRICT CONSTRUCTIONALIST" AND A "HARD LINER" WHEN IT CAME TO
 CONSTRUING THE CONTRACT AS TO THE NUMBER OF UNION REPRESENTATIVES HE
 WOULD SEE AT MEETINGS;  THAT MOST OF THE OTHER MANAGERS WERE NOT;  AND
 THAT, IN MANY INSTANCES, THERE WERE MANAGERS WHO ALLOWED MORE THAN ONE
 UNION REPRESENTATIVE TO ATTEND MEETINGS.  (TR. 282, 299).
 
    7.  HENRY P. SEUFERT WAS DIRECTOR OF THE BROOKHAVEN SERVICE CENTER
 FROM AUGUST 5, 1973 TO NOVEMBER 4, 1977.  HE MET ON NUMEROUS OCCASIONS
 WITH UNION REPRESENTATIVES TO DISCUSS LABOR RELATIONS.  HE NEVER RAISED
 A QUESTION CONCERNING HOW MANY UNION REPRESENTATIVES COULD BE PRESENT
 FOR SUCH MEETINGS, NOR DID THE UNION.  THE QUESTION OF WHOSE DECISION IT
 WAS, OR WHETHER THE UNION HAD TO REQUEST PERMISSION TO BRING MORE THAN
 ONE REPRESENTATIVE WAS NEVER RAISED.  HE TESTIFIED, "WHOEVER THEY
 BROUGHT IS WHOEVER I MET WITH." MR. SEUFERT ALSO DID NOT KNOW OF ANY
 RESTRICTION PLACED BY HIS SUBORDINATES ON HOW MANY PERSONS THE UNION
 COULD BRING, OR NOT BRING, TO A MEETING.  (TR. 30-33).
 
    8.  KENNETH HART SERVED AS CHAPTER PRESIDENT OF THE UNION AT THE
 SERVICE CENTER FROM OCTOBER 1975 TO JUNE 1978.  DURING THIS PERIOD HART
 INSTRUCTED THE STEWARDS THAT THEY SHOULD NOT MEET WITH A BRANCH CHIEF,
 OR ANOTHER MANAGEMENT REPRESENTATIVE OF HIGHER RANK ALONE, BUT SHOULD BE
 ACCOMPANIED AT SUCH MEETINGS BY A UNION OFFICIAL, OR ANOTHER STEWARD.
 JUDY OSLAGER, WHO SUCCEEDED MR. HART AS CHAPTER PRESIDENT, CONTINUED
 THIS POLICY AND PRACTICE.  BOTH TESTIFIED THAT, IN SUCH CAPACITY, THEY
 DID, ON OCCASION, MEET WITH SUCH OFFICIALS ALONE, BUT IT WAS THE UNION'S
 DECISION WHETHER OR NOT TO DO SO.  (TR. 36-38;  90, 92, 106).
 OTHERWISE, THEY ADHERED TO THE POLICY AND PRACTICE AND, PRIOR TO OCTOBER
 18, 1978, THE RECORD SHOWS THAT NO SPECIFIC SECTION CHIEF, EXCEPT FOR
 MR. SMITH, REFUSED TO MEET WITH MORE THAN ONE UNION REPRESENTATIVE AT
 THE MEETINGS IN ISSUE.  /2/
 
    9.  IN 1977 THE UNION SUBMITTED THE TOPIC OF "LIMIT ON UNION
 PERSONNEL AT INFORMATION SHARING MEETINGS" AS AN AGENDA ITEM FOR A LABOR
 MANAGEMENT RELATIONS COMMITTEE MEETING, BECAUSE A QUESTION HAD BEEN
 RAISED ABOUT THE ATTENDANCE OF A STEWARD AT A MEETING, AND THE UNION
 WANTED TO CLARIFY ITS POLICY.  (TR. 71-72;  286;  RESPONDENT'S EX. 5.)
 THE ITEM WAS DISCUSSED AT THE JUNE 30, 1977 MEETING.  (TR. 72, 285).
 THE RECORD DOES NOT REFLECT THE SUBSTANCE OF THE DISCUSSION;  HOWEVER,
 THE MINUTES PREPARED BY MANAGEMENT STATED:
 
    MANAGEMENT ASKED NTEU TO TAKE A HARD LOOK AT THEIR USE OF
 ADMINISTRATIVE TIME AND REGULATE
 
    IT TO THE BEST OF ITS ABILITY.  (FREQUENTLY, MORE REPRESENTATIVES
 THAN ARE NEEDED ATTEND
 
    INFORMATION MEETINGS.) FURTHER, MANAGEMENT STATED THAT IF THERE IS
 DISAGREEMENT ON HOW MANY
 
    WILL ATTEND INFORMATION SHARING MEETINGS (RESULTING FROM CHANGE IN
 PERSONNEL POLICIES,
 
    PRACTICES, PROCEDURES) THE MATTER TO BE DISCUSSED CAN BE BROUGHT UP
 AT LMRC MEETINGS AS AN
 
    AGENDA ITEM.
 
    10.  AT OTHER TIMES IN 1977 AND 1978 RESPONDENT ADVISED THE UNION
 THAT EMPLOYEE USE OF OFFICIAL TIME MUST BE REASONABLE AND ACCOUNTED FOR
 UNDER THE CONTRACT.  (RESPONDENT'S EX. 3, 6, 8, AND 10;  TR. 292).
 
    11.  UPON ASSUMING THE POSITION OF CHAPTER PRESIDENT ON JUNE 2, 1978,
 MS. OSLAGER MET WITH THEN DIRECTOR THOMAS LAYCOCK ON JUNE 2, 1978.  MS.
 OSLAGER WAS ACCOMPANIED BY JOAN SHERIDAN, VICE PRESIDENT AND CHIEF
 STEWARD OF THE UNION.  (TR. 91, 251).  MR. LAYCOCK STATED THAT THE
 CONTRACT WOULD BE HIS GUIDE AND RULE HIS ACTIONS;  THAT, AS NEW UNION
 REPRESENTATIVES, THEY WOULD GET NOTHING WHICH WAS NOT SPELLED OUT IN THE
 CONTRACT.  (TR. 92, 251).  NOTWITHSTANDING THE FOREGOING, IN THE PERIOD
 PRIOR TO OCTOBER 18, 1978, MS. OSLAGER WAS NEVER DENIED THE RIGHT TO
 HAVE MORE THAN ONE UNION REPRESENTATIVE PRESENT AT MEETINGS WITH BRANCH
 CHIEFS OR ABOVE.  (TR.  93).
 
    12.  IN OCTOBER 1978 DIRECTOR LAYCOCK LEARNED THAT SEVERAL BARGAINING
 UNIT EMPLOYEES WERE DISSATISFIED WITH AN ARTICLE WHICH HAD APPEARED IN
 THE UNION NEWSPAPER, AND WISHED TO SPEAK TO HIM CONCERNING THE
 PUBLICATION OF A REBUTTAL IN THE SERVICE CENTER NEWSPAPER.  LAYCOCK
 SOUGHT ADVICE FROM THE CENTER'S LABOR RELATIONS SECTION. (TR. 239-240).
 SECTION CHIEF LITWACK ADVISED HIM THAT IT WOULD BE IMPROPER FOR THE
 CENTER TO PUBLISH THE REBUTTAL, AND IF LAYCOCK WERE TO MEET WITH THE
 EMPLOYEES, THE MEETING WOULD LIKELY CONSTITUTE A FORMAL DISCUSSION UNDER
 SECTION 10(E) OF EXECUTIVE ORDER 11491.  LITWACK FURTHER ADVISED THAT,
 UNDER THE EXECUTIVE ORDER AND THE MCA, ONE UNION REPRESENTATIVE SHOULD
 BE INVITED TO ATTEND ANY SUCH MEETING.  (TR.  320-321).
 
    13.  LAYCOCK TOOK LITWACK'S ADVICE.  (TR. 241).  HE ADVISED THE
 EMPLOYEES IT WOULD NOT BE POSSIBLE TO PUBLISH THEIR REBUTTAL, BUT
 OFFERED TO MEET WITH THEM.  (TR. 240).  WHEN THE EMPLOYEES REQUESTED
 SUCH A MEETING, LAYCOCK NOTIFIED UNION CHAPTER PRESIDENT OSLAGER AND
 INVITED HER TO ATTEND THE MEETING, WHICH WAS SCHEDULED FOR OCTOBER 18,
 1978.  (TR. 94).
 
    14.  OSLAGER ARRIVED FOR THE MEETING ACCOMPANIED BY CHAPTER
 VICE-PRESIDENT AND CHIEF STEWARD JOAN SHERIDAN.  (TR. 94).  LAYCOCK,
 BASED ON THE INTERPRETATION OF THE MCA FURNISHED HIM BY LITWACK,
 OBJECTED TO BOTH OSLAGER AND SHERIDAN BEING PRESENT.  (TR. 241-242).
 LAYCOCK WAS NOT AWARE OF WHAT THE PRACTICE WAS, OR WHETHER THIS WAS A
 CHANGE OR NOT.  (TR. 244).  WHEN LAYCOCK RAISED THE OBJECTION, OSLAGER
 DID NOT VOICE DISAGREEMENT;  SHE DID NOT ASSERT A RIGHT TO HAVE A SECOND
 UNION REPRESENTATIVE PRESENT.  (TR. 158;  242).  RATHER, OSLAGER ADVISED
 SHERIDAN TO LEAVE AND PROCEEDED TO ATTEND THE MEETING HERSELF.  (TR.
 206).  NO GRIEVANCE WAS FILED AND NO BARGAINING DEMAND WAS EVER MADE.
 (TR. 158).  IN ADDITION TO LAYCOCK AND OSLAGER, THREE BARGAINING UNIT
 EMPLOYEES ATTENDED THE MEETING.  (TR. 242).  AT THE MEETING, THE THREE
 EMPLOYEES VOICED THEIR DISSATISFACTION WITH THE UNION'S HANDLING OF A
 GRIEVANCE. (TR. 242-243).
 
    15.  ON NOVEMBER 16, 1978 OSLAGER SOUGHT AN INFORMAL MEETING WITH
 DIRECTOR LAYCOCK ON SOME SUBJECT.  SHERIDAN ACCOMPANIED OSLAGER TO
 LAYCOCK'S OFFICE.  LAYCOCK DECLINED TO MEET WITH BOTH OSLAGER AND
 SHERIDAN.  (TR. 95, 207).  OSLAGER VOICED NO OBJECTION, SHERIDAN LEFT,
 AND OSLAGER PROCEEDED TO MEET WITH LAYCOCK.  (TR. 94-96).  OSLAGER WAS
 UNABLE TO RECALL THE SUBJECT WHICH SHE SOUGHT TO DISCUSS WITH LAYCOCK.
 (TR. 96).  LAYCOCK HAS NO RECOLLECTION OF ANY NOVEMBER 16, 1978 MEETING
 WITH OSLAGER.  (TR. 244).
 
    16.  ON NOVEMBER 17, 1978, OSLAGER WAS INVITED TO MEET WITH ASSISTANT
 DIRECTOR CHARLES COPELAND CONCERNING THE COMBINED FEDERAL CAMPAIGN.
 OSLAGER ARRIVED AT COPELAND'S OFFICE ACCOMPANIED BY SHERIDAN.  (TR. 96).
  COPELAND ADVISED OSLAGER AND SHERIDAN THAT HE WOULD MEET WITH ONLY ONE
 OF THEM AT THAT TYPE OF MEETING.  NEITHER OSLAGER NOR SHERIDAN RAISED
 ANY OBJECTION.  (TR. 96, 178, 207).  SHERIDAN LEFT, AND OSLAGER
 PROCEEDED TO MEET WITH COPELAND.  COPELAND ASKED OSLAGER IF THE UNION
 WOULD APPOINT A CO-CHAIRPERSON AND SUPPORT THE COMBINED FEDERAL
 CAMPAIGN, AS IT HAD IN THE PAST.  (TR. 176).  OSLAGER SUBSEQUENTLY
 NOTIFIED COPELAND THAT THE UNION WOULD DO SO AND PROVIDED HIM THE NAME
 OF THE UNION CO-CHAIRPERSON.  (TR. 179).
 
    17.  OVER THE PERIOD FROM 1975 THROUGH NOVEMBER, 1978, AND CONTINUING
 UP TO THE DATE OF THE HEARING, THERE WERE INNUMERABLE FORMAL AND
 INFORMAL MEETINGS OF ALL KINDS AT ALL LEVELS BETWEEN REPRESENTATIVES OF
 SERVICE CENTER MANAGEMENT AND REPRESENTATIVES OF THE UNION.  THE NUMBER
 OF PARTICIPANTS OR ATTENDEES AT THESE MEETINGS VARIED.  MANY INVOLVED A
 SINGLE MANAGEMENT OFFICIAL AND A SINGLE UNION REPRESENTATIVE.  OTHERS
 INVOLVED A SINGLE MANAGEMENT OFFICIAL AND TWO OR MORE UNION
 REPRESENTATIVES, OR VICE VERSA.  STILL OTHER MEETINGS INVOLVED TWO OR
 MORE MANAGEMENT OFFICIAL AND TWO OR MORE UNION UNION REPRESENTATIVES.
 THERE WERE MORE MEETINGS WITH MANAGEMENT OFFICIALS AT THE LEVEL OF
 BRANCH CHIEF OR ABOVE AT WHICH MORE THAN ONE UNION REPRESENTATIVE WAS
 PRESENT, WITHOUT ANY OBJECTION BEING VOICED, THAN THERE WERE WITH ONLY
 ONE UNION REPRESENTATIVE.  (TR. 32, 37-38, 44-46, 54-55, 106, 154,
 174-175, 191-196, 204-206, 218-219, 274, 284, 302;  GENERAL COUNSEL'S
 EX. 3).
 
    18.  SINCE NOVEMBER 1978 THE DIRECTOR OF THE SERVICE CENTER HAS MET
 ON SOME OCCASIONS WITH ONE UNION REPRESENTATIVE AND ON OTHER OCCASIONS
 WITH MORE THAN ONE UNION REPRESENTATIVE.  DIRECTOR LAYCOCK HAS STATED TO
 THE UNION REPRESENTATIVES ON ONE OR MORE OCCASIONS DURING THIS PERIOD
 THAT HE WOULD MEET WITH ONLY ONE UNION REPRESENTATIVE UNDER THE CONTRACT
 UNLESS THERE IS A GOOD AND SUFFICIENT REASON TO SHOW THAT ADDITIONAL
 UNION REPRESENTATIVES WOULD MAKE A CONTRIBUTION TO THE MEETING.  THE
 DIRECTOR CLAIMED HE HAS BEEN CONSISTENT IN APPLYING THIS POLICY SINCE
 THE OCTOBER 18, 1978 MEETING.  (TR. 253-254).  BOTH HE AND MR. COPELAND
 HAVE, HOWEVER, MET WITH MORE THAN ONE UNION REPRESENTATIVE SINCE
 NOVEMBER 1978 AND HAVE VOICED NO OBJECTION TO THE UNION CONCERNING THE
 REPRESENTATIVES BEING PRESENT.  (TR. 193).
 
    19.  DURING ONGOING NEGOTIATIONS FOR A SUCCESSOR TO THE MCA, THE
 UNION SUBMITTED PROPOSED CHANGES IN ARTICLE 5, SECTION 2 ON MAY 17,
 1978.  THE UNION'S PROPOSED AMENDMENTS PROVIDED, AMONG OTHER THINGS, "A
 UNION STEWARD, CHIEF STEWARD AND CHAPTER PRESIDENT WILL RECEIVE OFFICIAL
 TIME TO BE PRESENT AT FORMAL OR INFORMAL DISCUSSIONS WITH THE EMPLOYER .
 . . ", AND "THE CHIEF STEWARD AND CHAPTER PRESIDENT WILL RECEIVE
 ADMINISTRATIVE TIME TO BE PRESENT AT FORMAL AND INFORMAL MEETINGS
 NECESSARY TO CARRY OUT THE GOALS OF EXECUTIVE ORDER 11491, AS AMENDED."
 (RESPONDENT'S EX. 11, EMPHASIS ADDED).  THE UNION SUBSEQUENTLY WITHDREW
 THE PROPOSAL.  (TR.  198).
 
                             PROCEDURAL FACTS
 
    20.  IN JANUARY 25, 1979, THE UNION CHARGED THE SERVICE CENTER WITH A
 VIOLATION OF SECTION 19(A)(1) AND (6) OF THE EXECUTIVE ORDER.  (GENERAL
 COUNSEL'S EX.  1(R)).  THE CHARGE ALLEGED THAT THE SERVICE CENTER
 UNILATERALLY CHANGED PERSONNEL POLICIES AND PRACTICES WHEN, "IN MEETINGS
 ON OCTOBER 18, 1978, NOVEMBER 16, 1978, AND NOVEMBER 17, 1978 YOU
 GRANTED OFFICIAL TIME TO ONLY ONE UNION OFFICIAL.  THE PARTIES MET ON
 FEBRUARY 12, 1979 TO ATTEMPT TO INFORMALLY RESOLVE THE CHARGE.  (TR.
 110).
 
    21.  ON APRIL 24, 1979, THE UNION FILED AN UNDATED FORMAL CHARGE WITH
 REGION II OF THE AUTHORITY.  (GENERAL COUNSEL EX. 1(A)).  THE CHARGE
 REPEATED THE ALLEGATIONS RAISED IN THE INFORMAL CHARGE, BUT DELETED ANY
 ALLEGATION CONCERNING A CLAIMED NOVEMBER 16, 1978 MEETING.  ON MAY 25,
 1979, THE UNION FILED AN AMENDED CHARGE, DATED MAY 23, 1979.  (GENERAL
 COUNSEL EX. 1(C)).  AND, ON JANUARY 15, 1980, THE UNION FILED A SECOND
 AMENDED CHARGE, DATED JANUARY 9, 1980.  (GENERAL COUNSEL EX. 1(E)).
 NEITHER OF THE AMENDED CHARGES RAISED AN ALLEGATION CONCERNING A
 NOVEMBER 16, 1978 MEETING.
 
    22.  ON JANUARY 31, 1980, THE REGIONAL DIRECTOR, REGION II, ISSUED A
 COMPLAINT ALLEGING VIOLATIONS OF SECTION 19(A)(1) AND (6) OF THE
 EXECUTIVE ORDER ARISING OUT OF ALLEGED ACTIONS TAKEN ON OCTOBER 18,
 1978, NOVEMBER 16, 1978 AND NOVEMBER 17, 1978.  (GENERAL COUNSEL EX.
 1(G)).  RESPONDENTS ANSWERED THE COMPLAINT, MOVING FOR ITS DISMISSAL ON
 VARIOUS GROUNDS.  (GENERAL COUNSEL EX. 1(I), 1(J), 1(T)).
 
               DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
 
    AUTHORITY OF GENERAL COUNSEL
 
    RESPONDENT CONTENDS THAT THE REGIONAL DIRECTOR WAS WITHOUT AUTHORITY
 TO ISSUE THE COMPLAINT, AND THE GENERAL COUNSEL WAS WITHOUT AUTHORITY TO
 PROSECUTE THE COMPLAINT.  RESPONDENT ALLEGES THAT THE CASE IS GOVERNED
 SUBSTANTIVELY AND PROCEDURALLY BY EXECUTIVE ORDER 11491, AS AMENDED, AND
 THE ASSISTANT SECRETARY'S REGULATION ISSUED THEREUNDER.  SEE 4 FED.REG.
 5(1979).  THE AUTHORITY HAS CONCLUDED THAT IT DOES HAVE THE POWER TO
 PROCESS, THROUGH THE MEDIUM OF THE GENERAL COUNSEL, EXECUTIVE ORDER
 CASES FILED AFTER JANUARY 11, 1979.  SEE 44 FED.REG.  14634(1979);  44
 FED.REG. 44740(1979);  5 C.F.R. 2423.1(1980).  I AM BOUND BY THE RULES
 AND REGULATIONS OF THE AUTHORITY.  SEE 5 C.F.R. 2423.19(1980) AND
 NATIONAL LABOR RELATIONS BOARD, REGION I, BOSTON MASSACHUSETTS AND
 RONALD LASKY, CASE NO. 1-CA-28, DECISION OF ADMINISTRATIVE LAW JUDGE
 BURTON S. STERNBURG (MAY 14, 1980).
 
    THE NOVEMBER 16, 1978 MEETING
 
    RESPONDENT ALSO CONTENDS THAT ALLEGATIONS ARISING OUT OF A CLAIMED
 NOVEMBER 16, 1978 MEETING ARE NOT PROPERLY PART OF THE COMPLAINT OR THE
 PROCEEDINGS, BECAUSE THE UNION DID NOT RAISE ANY ALLEGATION CONCERNING
 SUCH A MEETING IN THE APRIL 24, 1979 CHARGE WHICH IT FILED WITH THE
 AUTHORITY.  THIS CONTENTION IS WITHOUT MERIT.  ON JANUARY 25, 1979,
 SUBSEQUENT TO THE ISSUANCE OF THE TRANSITION RULES AND REGULATIONS OF
 THE AUTHORITY, 44 FED.REG.  5(1979), BUT PRIOR TO THE POLICY STATEMENT
 OF MARCH 7, 1979, 44 FED.REG. 14634(1979), THE UNION FILED A CHARGE WITH
 RESPONDENT.  THIS CHARGE CLEARLY ALLEGED THAT ON NOVEMBER 16, 1978, AND
 ON TWO OTHER DATES, RESPONDENT REFUSED TO MEET WITH MORE THAN ONE UNION
 REPRESENTATIVE.  THIS DOCUMENT, FILED PURSUANT TO THE THEN-EXISTING
 REQUIREMENTS OF THE AUTHORITY, PUT RESPONDENT ON FULL NOTICE THAT
 UNLAWFUL CONDUCT WAS ALLEGED TO HAVE OCCURRED ON THAT DATE.  ALTHOUGH
 THIS DATE WAS NOT AGAIN ALLEGED IN THE UNION'S APRIL 24, 1979 CHARGE
 FILED WITH THE AUTHORITY, THIS IS NOT FATAL, AS THE GENERAL COUNSEL'S
 COMPLAINT OF JANUARY 31, 1980 SPECIFIED THE NOVEMBER 16, 1978 DATE, AS
 WELL AS THE EARLIER DATE OF OCTOBER 18, 1978 AND THE LATER DATE OF
 NOVEMBER 17, 1978 AS DATES "ON OR ABOUT" WHICH RESPONDENT UNILATERALLY
 CHANGED EXISTING PRACTICES.  IT IS THE GENERAL COUNSEL'S COMPLAINT,
 FOLLOWING THE GENERAL COUNSEL'S INVESTIGATION OF THE CHARGES, WHICH
 ESTABLISHED THE ISSUES FOR THE HEARING UNDER THE AUTHORITY'S
 REGULATIONS.  THUS, ALLEGATIONS AND EVIDENCE CONCERNING THE NOVEMBER 16,
 1978 MEETING WERE NOT BEYOND THE PROPER SCOPE OF THE COMPLAINT, OR OF
 THE HEARING.
 
    THE OCTOBER 18, 1978 MEETING
 
    RESPONDENT FURTHER CONTENDS THAT CONSIDERATION OF THE OCTOBER 18,
 1978 MEETING IS TIME BARRED UNDER THE STATUTE, BECAUSE IT OCCURRED MORE
 THAN SIX MONTHS PRIOR TO THE APRIL 24, 1979 DATE ON WHICH A FORMAL
 CHARGE WAS FILED WITH THE AUTHORITY.  5 U.S.C.  7118(A)(4)(A).
 RESPONDENT ARGUES THAT "IF THE EXECUTIVE ORDER RULES AND REGULATIONS ARE
 TO BE DISREGARDED FOR SOME PURPOSES, THEY MUST BE DISREGARDED FOR ALL
 PURPOSES."
 
    THE UNION, ACTING PURSUANT TO THE REQUIREMENTS SET FORTH IN THE
 TRANSITION RULES AND REGULATIONS, 44 FED.REG. 5(1979), WHICH ADOPTED THE
 RULES AND REGULATIONS OF THE ASSISTANT SECRETARY, 29 C.F.R. PART 203,
 PROPERLY FILED A PRECOMPLAINT CHARGE WITH THE RESPONDENT ON JANUARY 25,
 1979.  THE TRANSITION RULES AND REGULATIONS ADOPTED THE THEN EXISTING
 RULES AND REGULATIONS OF THE ASSISTANT SECRETARY WITH RESPECT TO THE
 TIME LIMITS FOR FILING UNFAIR LABOR PRACTICE CHARGES AND COMPLAINTS
 UNDER EXECUTIVE ORDER 11491, AS AMENDED.  THE ASSISTANT SECRETARY'S
 RULES AND REGULATIONS PROVIDED THAT CHARGES OF UNFAIR LABOR PRACTICES
 WERE TO BE FILED WITH A RESPONDENT WITHIN SIX MONTHS OF THE OCCURRENCE.
 FAILING RESOLUTION, COMPLAINTS WERE TO BE FILED WITHIN SIXTY DAYS OF
 RESPONDENT'S WRITTEN FINAL DECISION.  IN NO EVENT WERE COMPLAINTS
 ACTIONABLE IF FILED OVER NINE MONTHS AFTER THE OCCURRENCE OF THE ALLEGED
 UNFAIR LABOR PRACTICE.
 
    THE PARTIES MET ON FEBRUARY 12, 1979.  THE RECORD DOES NOT CONTAIN A
 WRITTEN FINAL DECISION OF RESPONDENT.  ON MARCH 7, 1979, THE AUTHORITY
 ISSUED A NOTICE WHEREIN IT DID AWAY WITH THE PRACTICE OF REQUIRING THE
 FILING OF A CHARGE WITH RESPONDENT PRIOR TO THE FILING OF A FORMAL
 CHARGE OR COMPLAINT WITH THE AUTHORITY.  THE NOTICE, HOWEVER, WAS SILENT
 WITH RESPECT TO THE NINE MONTH PERIOD ALLOWED FOR THE PERFECTION OF A
 COMPLAINT UNDER THE EXECUTIVE ORDER.  44 FED.REG. 14634(1979).  THE
 UNION THEN FILED ITS FORMAL CHARGE WITH THE AUTHORITY ON APRIL 24, 1979.
  INASMUCH, AS UNION'S FORMAL CHARGE WAS FILED WITHIN NINE MONTHS OF THE
 OCCURRENCE, AND NO FINAL WRITTEN DECISION OF THE RESPONDENT APPEARS IN
 THE RECORD WHICH WOULD HAVE TRIGGERED AN EARLIER FILING DATE, I FIND
 THAT THE CHARGE CONCERNING THE OCTOBER 18, 1978 MEETING WAS TIMELY FILED
 UNDER THE APPLICABLE REGULATIONS.  NATIONAL LABOR RELATIONS BOARD,
 REGION I, BOSTON, MASSACHUSETTS, SUPRA.
 
    QUESTION OF DEFERRAL TO PARTIES' CONTRACTUAL GRIEVANCE-ARBITRATION
 PROCEDURE
 
    RESPONDENT CONTENDS THAT THIS CASE CONCERNS ITS ALLEGED REFUSAL TO
 PERMIT MULTIPLE UNION REPRESENTATIVES TO ATTEND CERTAIN MEETINGS ON
 OFFICIAL TIME, AND AS THE RIGHT TO OFFICIAL TIME CAN ARISE ONLY PURSUANT
 TO A NEGOTIATED AGREEMENT, THE MATTER IS NOT APPROPRIATELY RAISED AS AN
 UNFAIR LABOR PRACTICE, BUT SHOULD BE DEFERRED TO THE CONTRACTUAL
 GRIEVANCE-ARBITRATION MACHINERY.
 
    IF THIS CASE INVOLVED ESSENTIALLY AN INTERPRETATION OF THE NEGOTIATED
 AGREEMENT IN RELATION TO OFFICIAL TIME, RESPONDENT WOULD BE CORRECT.
 SEE DEPARTMENT OF THE AIR FORCE, BASE PROCUREMENT OFFICE, VANDENBURG AIR
 FORCE BASE, CALIFORNIA, FLRC NO. 75A-25, 4 FLRC 587(1976);  DEPARTMENT
 OF THE NAVY, NAVAL WEAPONS STATION, CONCORD, CALIFORNIA, A/SLMR NO.
 1115, 8 A/SLMR 996(1978);  INTERNAL REVENUE SERVICE, BURMINGHAM DISTRICT
 AND NATIONAL TREASURY EMPLOYEES UNION, LOCAL CHAPTER 12 (ARBITRATOR
 DROTNING, JUNE 8, 1978).  BUT WHILE THE UNION'S ORIGINAL AND AMENDED
 CHARGES OF JANUARY 25, 1979, APRIL 24, 1979, MAY 25, 1979, AND JANUARY
 1, 1980 ALL ALLEGED THAT WHAT CONSTITUTED THE UNILATERAL CHANGE OF
 PRACTICES ON CERTAIN DATES WAS RESPONDENT'S GRANTING "OFFICIAL TIME TO
 ONLY ONE UNION OFFICIAL," THE GENERAL COUNSEL'S COMPLAINT, ISSUED AFTER
 INVESTIGATION OF THE CHARGE, DID NOT MENTION OFFICIAL TIME.  RATHER, THE
 GENERAL COUNSEL ALLEGED THAT WHAT CONSTITUTED THE UNILATERAL CHANGE IN
 EXISTING PRACTICES ON THESE DATES WAS RESPONDENT'S REFUSAL "TO PERMIT
 MORE THAN ONE REPRESENTATIVE OF THE CHARGING PARTY TO BE PRESENT AT
 FORMAL DISCUSSIONS . . . AND AT INFORMAL MEETINGS . . ." (GENERAL
 COUNSEL'S EX. 1(R), 1(A), 1(C), 1(E), AND 1(G).
 
    THE DETERMINATION OF WHETHER THERE WAS SUCH A UNILATERAL CHANGE OF
 PAST PRACTICES IN THIS REGARD DOES NOT REQUIRE AN INTERPRETATION OF THE
 PARTIES' NEGOTIATED AGREEMENT IN RELATION TO OFFICIAL TIME, COMPARE
 DEPARTMENT OF THE NAVY, NAVAL WEAPONS STATION, CONCORD, CALIFORNIA,
 A/SLMR NO. 1115, 8 A/SLMR 996(1978), OR A DETERMINATION OF HOW SUCH
 REPRESENTATIVES PROPERLY ACCOUNT FOR THEIR TIME AT SUCH MEETINGS,
 WHETHER BY OFFICIAL TIME, ANNUAL LEAVE, OR ADMINISTRATIVE LEAVE.
 RATHER, THE INITIAL ISSUE INVOLVES A DETERMINATION OF WHAT THE PRACTICE
 WAS WITH REGARD TO THE NUMBER OF UNION REPRESENTATIVES WHO MAY BE
 PRESENT AT MEETINGS WITH MANAGERS AT THE LEVEL OF BRANCH CHIEF OR ABOVE.
  THE AGREEMENT BETWEEN THE PARTIES DOES NOT SPECIFICALLY ADDRESS THE
 ISSUE OF THE NUMBER OF UNION REPRESENTATIVES WHO MAY BE PRESENT, APART
 FROM MEETINGS CONCERNING GRIEVANCES, THE LABOR-MANAGEMENT RELATIONS
 COMMITTEE, AND POTENTIAL ADVERSE ACTIONS, WHICH ARE NOT IN ISSUE HERE.
 THUS, THE ALLEGED UNILATERAL INTERPRETATIONS OF THE AGREEMENT, BUT
 BARGAINING RIGHTS UNDER THE ORDER WHICH ARE PROPERLY DETERMINED IN AN
 UNFAIR LABOR PRACTICE PROCEEDING.  CF. DEPARTMENT OF THE NAVY, NAVAL AIR
 REWORK FACILITY, ALAMEDA, CALIFORNIA, A/SLMR NO.  1089, 8 A/SLMR 814 AT
 816-817(1978).
 
    IT IS WELL ESTABLISHED THAT PARTIES MAY ESTABLISH TERMS AND
 CONDITIONS OF EMPLOYMENT BY PRACTICE, OR OTHER FORM OF TACIT OR INFORMAL
 AGREEMENT, AND THAT THIS, LIKE OTHER ESTABLISHED TERMS AND CONDITIONS OF
 EMPLOYMENT MAY NOT BE ALTERED BY EITHER PARTY IN THE ABSENCE OF
 AGREEMENT OR IMPASSE FOLLOWING GOOD FAITH BARGAINING.  DEPARTMENT OF THE
 NAVY, NAVAL UNDERWATER SYSTEMS CENTER, NEWPORT NAVAL BASE, 3 FLRA NO.
 64(1980).  PAST PRACTICES GENERALLY INCLUDE ALL CONDITIONS OF EMPLOYMENT
 NOT SPECIFICALLY COVERED IN THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT, WHICH ARE FOLLOWED BY BOTH PARTIES, OR FOLLOWED BY ONE PARTY
 AND NOT CHALLENGED BY THE OTHER PARTY OVER A PERIOD OF TIME.  PAST
 PRACTICES MAY ALSO INCLUDE THE ACTUAL PRACTICE BEING FOLLOWED,
 REGARDLESS OF THE CONTRACTUAL AGREEMENT.
 
    PAST PRACTICE ISSUES
 
    THE PRINCIPLE ISSUES ON THE MERITS ARE WHETHER A PAST PRACTICE
 EXISTED WHEREBY THE UNION COULD, AT ITS ELECTION, HAVE MORE THAN ONE
 REPRESENTATIVE PRESENT AT MEETINGS WITH BRANCH CHIEFS AND ABOVE, AND IF
 SO, WHETHER THE RESPONDENT UNILATERALLY TERMINATED THE PAST PRACTICE
 WITHOUT PROVIDING THE UNION AN OPPORTUNITY TO BARGAIN CONCERNING WHETHER
 OR NOT THE PRACTICE SHOULD BE DISCONTINUED.  IN ORDER TO CONSTITUTE THE
 ESTABLISHMENT BY PRACTICE OF A TERM AND CONDITION OF EMPLOYMENT THE
 PRACTICE MUST BE CONSISTENTLY EXERCISED FOR AN EXTENDED PERIOD OF TIME
 WITH RESPONDENT'S KNOWLEDGE AND CONSENT.  CF. DEPARTMENT OF THE NAVY,
 NAVAL UNDERWATER SYSTEMS CENTER, NEWPORT NAVAL BASE, 3 FLRA NO.
 64(1980).
 
    THE RECORD REFLECTS THAT OVER A PERIOD FROM 1975 TO OCTOBER 1978
 MANAGEMENT AT THE LEVEL OF BRANCH CHIEF OR ABOVE MET, ON THE MAJORITY OF
 OCCASIONS, WITH MORE THAN ONE UNION REPRESENTATIVE WITHOUT OBJECTION AND
 WITHOUT REQUIRING THE UNION TO SHOW TO ITS SATISFACTION GOOD AND
 SUFFICIENT REASON WHY MORE THAN ONE REPRESENTATIVE WAS NECESSARY.  THESE
 MEETINGS WERE OF SUCH SUFFICIENT NUMBERS AND OVER SUCH A LONG DURATION
 THAT A REASONABLE PERSON WOULD HAVE RECOGNIZED THIS PRACTICE AND WOULD
 HAVE EXPECTED IT TO CONTINUE IN THE FUTURE.  THERE WERE ALSO MEETINGS
 DURING THIS PERIOD INVOLVING ONE UNION REPRESENTATIVE AND ONE OR MORE
 MANAGEMENT OFFICIALS, AND AT LEAST ONE BRANCH CHIEF, VICTOR A. SMITH,
 DECLINED, ON SOME OCCASIONS, TO MEET WITH MULTIPLE UNION
 REPRESENTATIVES.  HOWEVER, THE NUMBER OF THESE INCIDENTS, IN COMPARISON
 TO THE LARGE NUMBER OF OTHER MEETINGS INVOLVING MORE THAN ONE UNION
 REPRESENTATIVE, WOULD BE VIEWED BY A REASONABLE PERSON AS ONE-TIME
 AFFAIRS.  SMITH ACKNOWLEDGED THAT HE DEALT WITH THE ISSUE ON A
 CASE-BY-CASE BASIS AND DID NOT DISCUSS HIS DECISION TO ALLOW MORE THAN
 ONE UNION REPRESENTATIVE ON EVERY SUCH OCCASION.
 
    RESPONDENT'S KNOWLEDGE AND CONSENT TO THE PRACTICE IS ALSO SHOWN IN
 THE RECORD.  FIRST ARE NUMEROUS INSTANCES OF BRANCH CHIEFS AND ABOVE
 MEETING WITH MORE THAN ONE UNION REPRESENTATIVE WITHOUT OBJECTION.
 FORMER DIRECTOR SEUFERT TESTIFIED THAT "WHOEVER THEY BROUGHT IS WHOEVER
 I MET WITH";  THAT THE QUESTION OF WHETHER THEY HAD TO REQUEST
 PERMISSION TO BRING MORE THAN ONE WAS NEVER RAISED;  AND THAT HE KNEW OF
 NO RESTRICTION PLACED ON THE NUMBER OF UNION REPRESENTATIVES BY HIS
 SUBORDINATE MANAGERS.  BRANCH CHIEF SMITH APPARENTLY TOOK NO ACTION
 UNDER DIRECTOR SEUFERT TO ENSURE THAT HIS INTERPRETATION OF THE CONTRACT
 WAS MADE MANDATORY AMONG THE MANAGERS AND ACKNOWLEDGED THAT, IN MANY
 INSTANCES, THERE WERE MANAGERS WHO ALLOWED MORE THAN ONE UNION
 REPRESENTATIVES TO ATTEND.  WHEN THE TOPIC OF THE "LIMIT ON UNION
 PERSONNEL AT INFORMATION SHARING MEETINGS" WAS RAISED BY THE UNION AT A
 LABOR MANAGEMENT RELATIONS COMMITTEE MEETING IN 1977, THERE IS NO
 EVIDENCE THAT MANAGEMENT ANNOUNCED A UNIFORM POLICY THAT IS WOULD MEET
 WITH ONLY ONE UNION REPRESENTATIVE UNLESS GOOD AND SUFFICIENT REASON
 WERE SHOWN.  RATHER, MANAGEMENT RECOGNIZED A UNION ROLE IN DECIDING HOW
 MANY SHOULD ATTEND.  THE MINUTES STATED, IN PART, THAT "FREQUENTLY, MORE
 REPRESENTATIVES THAN ARE NEEDED ATTEND INFORMATION MEETINGS . . . (I)F
 THERE IS DISAGREEMENT ON HOW MANY WILL ATTEND . . . THE MATTER TO BE
 DISCUSSED CAN BE BROUGHT UP AT LMRC MEETINGS. .  . . " THE EVIDENCE
 SHOWS THAT THE WIDESPREAD PRACTICE OF BRANCH MANAGERS AND ABOVE
 (INCLUDING DIRECTOR LAYCOCK) MEETING WITH MORE THAN ONE UNION
 REPRESENTATIVE CONTINUED WITHOUT OBJECTION, EXCEPT POSSIBLY FROM MR.
 SMITH, UNTIL OCTOBER 18, 1978.
 
    THE RECORD SHOWS THAT ON OCTOBER 18, 1978, NOVEMBER 16, 1978, AND
 NOVEMBER 17, 1978 RESPONDENT, THROUGH DIRECTOR LAYCOCK AND ASSISTANT
 DIRECTOR COPELAND, REFUSED TO PERMIT MORE THAN ONE UNION REPRESENTATIVE
 TO BE PRESENT AT FORMAL DISCUSSIONS WITHIN THE MEANING OF SECTION 10(E)
 OF THE ORDER AND AT INFORMAL MEETINGS.  SINCE THAT DATE DIRECTOR LAYCOCK
 HAS CONSISTENTLY APPLIED THE POLICY THAT HE WILL MEET WITH ONLY ONE
 UNION REPRESENTATIVE UNLESS HE FINDS THAT THERE IS GOOD AND SUFFICIENT
 REASON TO SHOW THAT ADDITIONAL UNION REPRESENTATIVES WOULD MAKE A
 CONTRIBUTION TO THE MEETING.  WHILE DIRECTOR LAYCOCK RELIED UPON AN
 INTERPRETATION OF THE CONTRACT IN MAKING THIS DECISION, HE MADE NO
 EFFORT TO DETERMINE WHAT THE PRACTICE WAS, OR WHETHER THIS REPRESENTED A
 CHANGE.  MEETINGS HAVE OCCURRED SINCE THE ABOVE DATES IN WHICH MORE THAN
 ONE UNION REPRESENTATIVE ATTENDED WITHOUT OBJECTION, HOWEVER, IT IS
 CLEAR THAT MANAGEMENT CONTINUES TO INSIST THAT IT HAS TOTAL DISCRETION
 IN THIS AREA.
 
    THIS CHANGE IN PAST PRACTICE INSTITUTED WITHOUT NOTICE TO THE UNION,
 OR AFFORDING IT AN OPPORTUNITY TO NEGOTIATE CONSTITUTED A UNILATERAL
 CHANGE IN ESTABLISHED TERMS AND CONDITIONS OF EMPLOYMENT AND A BREACH OF
 RESPONDENT'S BARGAINING OBLIGATION IN VIOLATION OF SECTION 19(A)(6) OF
 THE ORDER AND, DERIVATIVELY, A VIOLATION OF SECTION 19(A)(1) OF THE
 ORDER.
 
    BASED ON THE FOREGOING FINDINGS AND CONCLUSIONS, IT IS RECOMMENDED
 THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER:
 
                                   ORDER
 
    PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
 FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135(B) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
 THAT THE INTERNAL REVENUE SERVICE AND BROOKHAVEN SERVICE CENTER SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) PROHIBITING MORE THAN ONE REPRESENTATIVE OF THE NATIONAL TREASURY
 EMPLOYEES UNION
 
    (NTEU) AND NTEU, CHAPTER 99 FROM BEING PRESENT AT FORMAL DISCUSSIONS
 AND AT INFORMAL MEETINGS
 
    WITH MANAGEMENT OFFICIALS AT THE LEVEL OF BRANCH CHIEF OR ABOVE, OR
 OTHERWISE CHANGING LIKE
 
    MATTERS AFFECTING THE WORKING CONDITIONS OF UNIT EMPLOYEES, WITHOUT
 FIRST NOTIFYING THE
 
    NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 99, AND EXCLUSIVE
 BARGAINING REPRESENTATIVE
 
    OF ITS EMPLOYEES, AND AFFORDING SUCH REPRESENTATIVES THE OPPORTUNITY
 TO MEET AND CONFER ON
 
    SUCH MATTER TO THE EXTENT CONSONANT WITH LAW AND REGULATION.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN
 
    THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
 AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED.
 
    (C) POST AT ITS FACILITY AT THE BROOKHAVEN SERVICE CENTER COPIES OF
 THE ATTACHED NOTICE
 
    MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY.  UPON
 RECEIPT OF SUCH FORMS, THEY
 
    SHALL BE SIGNED BY THE DIRECTOR, AND SHALL BE POSTED AND MAINTAINED
 BY HIM FOR 60 CONSECUTIVE
 
    DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS
 AND OTHER PLACES WHERE
 
    NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.  THE DIRECTOR SHALL TAKE
 REASONABLE STEPS TO
 
    INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
 OTHER MATERIAL.
 
    (D) PURSUANT TO 5 C.F.R. SECTION 2423.30 NOTIFY THE REGIONAL
 DIRECTOR, FEDERAL LABOR
 
    RELATIONS AUTHORITY IN WRITING WITHIN 30 DAYS FROM THE DATE OF THIS
 ORDER, AS TO WHAT STEPS
 
    HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
                             GARVIN LEE OLIVER
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  FEBRUARY 4, 1981
 
    WASHINGTON, D.C.
 
                                 APPENDIX
 
           PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 
            RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
 
          POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
 
              CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT PROHIBIT MORE THAN ONE REPRESENTATIVE OF THE NATIONAL
 TREASURY EMPLOYEES UNION (NTEU) AND NTEU, CHAPTER 99 FROM BEING PRESENT
 AT FORMAL DISCUSSIONS AND AT INFORMAL MEETINGS WITH MANAGEMENT OFFICIALS
 AT THE LEVEL OF BRANCH CHIEF OR ABOVE, OR OTHERWISE CHANGE LIKE MATTERS
 AFFECTING THE WORKING CONDITIONS OF UNIT EMPLOYEES, WITHOUT FIRST
 NOTIFYING THE NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 99, THE
 EXCLUSIVE BARGAINING REPRESENTATIVE OF OUR EMPLOYEES, AND AFFORDING SUCH
 REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER ON SUCH MATTER TO THE
 EXTENT CONSONANT WITH LAW AND REGULATIONS.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  . . .  BY . . .
 
                                (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS AND
 TELEPHONE NUMBER IS:  441 STUART STREET, 9TH FLOOR, BOSTON,
 MASSACHUSETTS 02116, 617-223-0920.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /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/ RESPONDENT SHOWED THAT DURING THE PERIOD 1975-1980 THERE WERE
 SEVERAL MEETINGS INVOLVING DIVISION CHIEFS AND INDIVIDUAL EMPLOYEES ON
 THE SUBJECT OF THE INDIVIDUAL EMPLOYEE'S TAX DEFICIENCIES.  HOWEVER, AS
 NOTED, THIS MEETING IS SPECIFICALLY COVERED BY ARTICLE 32, SECTION I.D.
 OF THE MCA (TR. 222;  JOINT EX. 1), AND IS DIFFERENT FROM THE MEETINGS
 IN ISSUE.  RESPONDENT SHOWED THAT AT SIX TO EIGHT OF THESE MEETINGS ONLY
 ONE UNION REPRESENTATIVE WAS PRESENT;  THA