10:0519(91)CO - NTEU and Customs Service; NTEU and Nuclear Regulatory Commission -- 1982 FLRAdec CO



[ v10 p519 ]
10:0519(91)CO
The decision of the Authority follows:


 10 FLRA No. 91
 
 NATIONAL TREASURY EMPLOYEES UNION
 Respondent
 
 and
 
 U.S. CUSTOMS SERVICE
 Charging Party
 
                                            Case No. 3-CO-26
 
 NATIONAL TREASURY EMPLOYEES UNION
 Respondent
 
 and
 
 NUCLEAR REGULATORY COMMISSION
 Charging Party
 
                                            Case No. 3-CO-37
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED CONSOLIDATED PROCEEDING FINDING THAT THE RESPONDENT HAD
 ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES AS ALLEGED IN THE COMPLAINTS,
 AND RECOMMENDING THAT IT BE ORDERED TO CEASE AND DESIST THEREFROM AND
 TAKE CERTAIN AFFIRMATIVE ACTION.  THEREAFTER, THE RESPONDENT FILED
 EXCEPTIONS TO THE JUDGE'S DECISION.  /1/
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 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 THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY
 HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, AS
 MODIFIED BELOW.
 
    THE JUDGE FOUND THAT THE RESPONDENT, NATIONAL TREASURY EMPLOYEES
 UNION (NTEU), FAILED TO MEET ITS OBLIGATION UNDER SECTION 7114(A)(1) OF
 THE STATUTE /2/ TO REPRESENT THE INTERESTS OF ALL UNIT EMPLOYEES WITHOUT
 DISCRIMINATION AND WITHOUT REGARD TO LABOR ORGANIZATION MEMBERSHIP WHEN
 IT (1) POSTED COPIES OF A MEMORANDUM ISSUED BY NTEU'S PRESIDENT AT A
 NUMBER OF LOCATIONS WITHIN THE U.S. CUSTOMS SERVICE ANNOUNCING TO
 EMPLOYEES THE CONTINUATION OF NTEU'S POLICY OF NOT FURNISHING ATTORNEYS
 TO REPRESENT NON-MEMBERS WHILE FURNISHING ATTORNEYS TO REPRESENT
 MEMBERS, AND (2) IMPLEMENTED THE FOREGOING POLICY AT THE NUCLEAR
 REGULATORY COMMISSION BY DENYING ATTORNEY REPRESENTATION TO NON-MEMBER
 EMPLOYEES BUT PROVIDING SUCH REPRESENTATION TO MEMBERS WHO WERE
 INVOLVED
 IN REMOVAL ACTIONS.  THE AUTHORITY ADOPTS THE ABOVE FINDINGS AND
 THEREFORE CONCLUDES, IN AGREEMENT WITH THE JUDGE, THAT SUCH
 NONCOMPLIANCE WITH THE REQUIREMENTS OF SECTION 7114(A)(1) CONSTITUTED A
 VIOLATION OF SECTION 7116(B)(1) AND (8) OF THE STATUTE.  /3/ SEE
 TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL/INTERNATIONAL
 ASSOCIATION OF MACHINISTS, LOCAL NO. 444, 8 FLRA NO. 47(1982).  /4/
 MOREOVER, IN FURTHER AGREEMENT WITH THE JUDGE, THE AUTHORITY CONCLUDES
 THAT THE FOREGOING CONDUCT CONSTITUTED AN INDEPENDENT VIOLATION OF
 SECTION 7116(B)(1) BECAUSE IT INTERFERED WITH THE EMPLOYEES' PROTECTED
 RIGHT UNDER SECTION 7102 OF THE STATUTE /5/ TO REFRAIN FROM JOINING A
 LABOR ORGANIZATION.  SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 LOCAL 1778, AFL-CIO, 10 FLRA NO. 62(1982).  /6/
 
    TO REMEDY THE UNFAIR LABOR PRACTICES FOUND, THE JUDGE RECOMMENDED "A
 BROAD ORDER APPLICABLE TO ALL EXCLUSIVE UNITS REPRESENTED BY RESPONDENT
 . . . , " NOTING THAT NTEU'S POLICY WAS APPLICABLE TO ALL ITS CHAPTERS
 AND WAS NOT LIMITED TO THE UNITS OF EXCLUSIVE RECOGNITION INVOLVED
 HEREIN.  IN THIS REGARD, HE ORDERED, INTER ALIA, THAT ALL NTEU OFFICE
 OFFICIALS, LEGAL STAFF, AND CHAPTER PRESIDENTS BE NOTIFIED OF THE CHANGE
 IN NTEU'S POLICY, AND THAT NTEU POST REMEDIAL NOTICES AT ITS NATIONAL
 HEADQUARTERS, AT EVERY LOCAL BUSINESS OFFICE OF ITS CHAPTERS, AT EVERY
 AGENCY OR ACTIVITY WHERE NTEU OR ANY OF ITS CHAPTERS HOLDS EXCLUSIVE
 RECOGNITION, AND AT ALL PLACES WHERE NOTICES TO MEMBERS AND EMPLOYEES
 ARE CUSTOMARILY POSTED.  THE AUTHORITY CONCLUDES, HOWEVER, CONSISTENT
 WITH PREVIOUS ORDERS ISSUED IN LIKE CIRCUMSTANCES (SEE N. 4, SUPRA),
 THAT AN ORDER REQUIRING NTEU TO CEASE AND DESIST FROM SUCH UNFAIR LABOR
 PRACTICES AND TO POST NOTICES ONLY WHERE THE UNLAWFUL CONDUCT WAS SHOWN
 TO HAVE OCCURRED WILL BEST EFFECTUATE THE PURPOSES AND POLICIES OF THE
 STATUTE.  THUS, WHILE THE RECORD INDICATES THAT NTEU'S CONDUCT IN THIS
 CASE WAS INTENDED TO TEST WHETHER ITS NATIONWIDE REPRESENTATION POLICY
 IS INCONSISTENT WITH THE REQUIREMENTS OF THE STATUTE (AS IT HAD
 PREVIOUSLY BEEN FOUND TO CONFLICT WITH THE PROVISIONS OF EXECUTIVE ORDER
 11491, AS AMENDED), THERE IS NO BASIS FOR CONCLUDING THAT NTEU WILL
 CONTINUE TO APPLY SUCH POLICY HERE FOUND TO CONFLICT WITH SECTION
 7114(A)(1) OF THE STATUTE AT ANY OTHER LOCATIONS AFTER THE ISSUANCE OF
 THIS DECISION.  THEREFORE, THE JUDGE'S RECOMMENDED ORDER SHALL BE
 MODIFIED ACCORDINGLY.
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
 FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
 THAT THE NATIONAL TREASURY EMPLOYEES UNION SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) AFFORDING DIFFERING STANDARDS OF EMPLOYEE REPRESENTATION TO
 EMPLOYEES IN UNITS OF EXCLUSIVE RECOGNITION SOLELY ON THE BASIS OF
 WHETHER SUCH EMPLOYEES ARE MEMBERS OF THE NATIONAL TREASURY EMPLOYEES
 UNION.
 
    (B) INTERFERING WITH, RESTRAINING, OR COERCING UNIT EMPLOYEES IN THE
 EXERCISE OF THEIR RIGHT TO REFRAIN FROM JOINING, FREELY AND WITHOUT FEAR
 OR PENALTY OR REPRISAL, THE NATIONAL TREASURY EMPLOYEES UNION OR ANY
 OTHER LABOR ORGANIZATION.
 
    (C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING UNIT EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) REPRESENT ALL EMPLOYEES IN UNITS OF EXCLUSIVE RECOGNITION WITHOUT
 DISCRIMINATION AND WITHOUT REGARD TO MEMBERSHIP IN THE NATIONAL TREASURY
 EMPLOYEES UNION.
 
    (B) POST AT ITS BUSINESS OFFICES AND ITS NORMAL MEETING PLACES,
 INCLUDING ALL PLACES WHERE NOTICES TO MEMBERS AND EMPLOYEES OF THE U.S.
 CUSTOMS SERVICE AND THE U.S. NUCLEAR REGULATORY COMMISSION ARE
 CUSTOMARILY POSTED, 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 PRESIDENT OF THE NATIONAL
 TREASURY EMPLOYEES UNION OR HIS DESIGNEE AND THEY SHALL BE POSTED AND
 MAINTAINED FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES,
 INCLUDING ALL PLACES WHERE NOTICES TO MEMBERS AND TO OTHER EMPLOYEES ARE
 CUSTOMARILY POSTED.  THE PRESIDENT OF NATIONAL TREASURY EMPLOYEES UNION
 SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
 DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (C) SUBMIT APPROPRIATE SIGNED COPIES OF SUCH NOTICES TO THE
 COMMISSIONER OF THE U.S. CUSTOMS SERVICE, WASHINGTON, D.C. AND THE
 CHAIRMAN OF THE U.S. NUCLEAR REGULATORY COMMISSION, WASHINGTON, D.C.,
 FOR POSTING IN CONSPICUOUS PLACES WHERE THE RESPECTIVE UNIT EMPLOYEES
 ARE LOCATED, WHERE THEY SHALL BE MAINTAINED FOR A PERIOD OF 60
 CONSECUTIVE DAYS FROM THE DATE OF POSTING.
 
    (D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION III, 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., NOVEMBER 23, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                       NOTICE TO ALL MEMBERS AND EMPLOYEES
           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 MEMBERS AND OTHER EMPLOYEES THAT:
 
    WE WILL NOT AFFORD DIFFERING STANDARDS OF EMPLOYEE REPRESENTATION TO
 EMPLOYEES IN UNITS OF EXCLUSIVE RECOGNITION SOLELY ON THE BASIS OF
 WHETHER SUCH EMPLOYEES ARE MEMBERS OF THE NATIONAL TREASURY EMPLOYEES
 UNION.
 
    WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE UNIT EMPLOYEES IN THE
 EXERCISE OF THEIR RIGHT TO REFRAIN FROM JOINING, FREELY AND WITHOUT FEAR
 OR PENALTY OR REPRISAL, THE NATIONAL TREASURY EMPLOYEES UNION OR ANY
 OTHER LABOR ORGANIZATION.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE UNIT EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 STATUTE.
 
    WE WILL REPRESENT ALL EMPLOYEES IN UNITS OF EXCLUSIVE RECOGNITION
 WITHOUT DISCRIMINATION AND WITHOUT REGARD TO MEMBERSHIP IN THE NATIONAL
 TREASURY EMPLOYEES UNION.
 
                           (LABOR ORGANIZATION)
 
    DATED:  BY:  (SIGNATURE) (TITLE)
 
    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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
 DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY WHOSE ADDRESS IS:
 P.O. BOX 33758, WASHINGTON, D.C. 20033-0758 AND WHOSE TELEPHONE NUMBER
 IS:  (202) 653-8452.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    SUSAN SHINKMAN, ESQUIRE
                    FOR THE GENERAL COUNSEL
 
    WILLIAM F. WHITE, ESQUIRE
    MARTHA D. FINLATOR, ESQUIRE
                    FOR THE RESPONDENT
 
    JUDITH A. NEWTON, ESQUIRE
    DAVID S. ORR, ESQUIRE
                   FOR THE U.S. CUSTOMS SERVICE
 
    DENNIS C. DAMBLY, ESQUIRE
    ELLEN M. BROWN, ESQUIRE
                  ON BRIEF:  JAY W. MAYNARD, ESQUIRE
                  FOR THE NUCLEAR REGULATORY COMMISSION
 
    BEFORE:  WILLIAM B. DEVANEY
 
                  ADMINISTRATIVE LAW JUDGE
 
                             CASE NO.: 3-CO-26
 
                             CASE NO.: 3-CO-37
 
                            DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    QUITE SIMPLY, THE ISSUE IN THIS CONSOLIDATED CASE IS WHETHER THE
 MEMORANDUM OF VINCENT L. CONNERY, PRESIDENT OF THE NATIONAL TREASURY
 EMPLOYEES UNION (HEREINAFTER, ALSO REFERRED TO AS "NTEU"), DATED
 SEPTEMBER 7, 1979 (G.C. EXH. 2), ADDRESSED TO "NTEU CHAPTER PRESIDENTS",
 AND ADMITTEDLY DISTRIBUTED TO, AND RECEIVED BY, EACH CHAPTER PRESIDENT,
 WHICH STATED UNEQUIVOCALLY, INTER ALIA, THAT, "NTEU WILL NOT SUPPLY
 ATTORNEYS TO NON-MEMBERS TO HELP IN THE REPRESENTATIONAL EFFORTS" (G.C.
 EXH. 2) VIOLATED SECS. 14(A)(1), 16(B)(1) AND (8) OF THE STATUTE, /7/
 THE AUTHORITY PREVIOUSLY HAVING FOUND, IN NATIONAL TREASURY EMPLOYEES
 UNION (NTEU), CHAPTER 202, ET AL., 1 FLRA NO. 104, FEDERAL LABOR
 RELATIONS AUTHORITY, REPORT OF CASE DECISIONS NO. 15, SEPTEMBER 25,
 1979, THAT NTEU'S PRIOR STATED POLICY THAT IT WOULD NOT PROVIDE
 ATTORNEYS TO NON-MEMBERS, WAS "INCONSISTENT WITH THE NTEU'S OBLIGATION
 TO REPRESENT 'THE INTERESTS OF ALL EMPLOYEES IN THE UNIT WITHOUT
 DISCRIMINATION AND WITHOUT REGARD TO LABOR ORGANIZATION MEMBERSHIP' AS
 REQUIRED BY SECTION 10(E) OF THE ORDER (EXECUTIVE ORDER 11491, AS
 AMENDED) AND IMPROPERLY INTERFERES WITH, RESTRAINS, AND COERCES
 NON-UNION EMPLOYEES IN THE EXERCISE OF THEIR RIGHT TO REFRAIN FROM
 JOINING THE NTEU.  ACCORDINGLY, THE AUTHORITY CONCLUDES THAT THE NTEU'S
 REPRESENTATION POLICY AS EXPRESSED IN THE THREE PUBLICATIONS VIOLATES
 SECTION 19(B)(1) OF THE ORDER (EXECUTIVE ORDER 11491, AS AMENDED) . . .
 . " (1 FLRA NO. 104 AT P. 5).
 
    THE AUTHORITY'S DECISION IN CASE NO. 1 FLRA NO. 104, SUPRA, WAS
 ISSUED ON AUGUST 30, 1979.  THERE IS NO QUESTION THAT CASE NO. 1 FLRA
 NO. 104 WAS DECIDED SOLELY ON THE BASIS OF EXECUTIVE ORDER 11491, AS
 AMENDED;  INDEED, THE DECISION IN N. 3 SPECIFICALLY STATED THAT, "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 OR 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." NOR, OF COURSE, IS
 THERE ANY POSSIBLE QUESTION THAT PRESIDENT CONNERY'S MEMORANDUM OF
 SEPTEMBER 7, 1979, WAS ISSUED WITH FULL AWARENESS OF THE AUTHORITY'S
 DECISION IN CASE NO. 1 FLRA NO. 104.  TO THE CONTRARY THE SUBJECT OF THE
 MEMORANDUM WAS "NTEU, CHAPTERS 202, 128 AND 165, 1 FLRA NO. 104(1979)"
 AND PRESIDENT CONNERY STATED, IN PART, AS FOLLOWS:
 
    "THE FEDERAL LABOR RELATIONS AUTHORITY HELD IN THE ABOVE-REFERENCED
 CASE THAT NTEU MUST
 
    FURNISH LAWYERS TO REPRESENT NON-MEMBERS IF THE SAME SERVICE IS
 FURNISHED TO MEMBERS.
 
   *          *          *          *
 
 
    "THE AUTHORITY BASED ITS DECISION ON AN INTERPRETATION OF EXECUTIVE
 ORDER 11491, AS
 
    AMENDED.  ALTHOUGH I FIRMLY BELIEVE THE DECISION IS WRONG, WE WILL
 NOT APPEAL IT BECAUSE IT IS
 
    BASED ON SOMETHING NO LONGER IN EXISTENCE.
 
    "HOWEVER, THE FACT THAT WE ARE NOT APPEALING THE DECISION DOES NOT
 MEAN NTEU POLICY HAS
 
    CHANGED.  NTEU WILL NOT SUPPLY ATTORNEYS TO NON-MEMBERS TO HELP IN
 THE REPRESENTATIONAL
 
    EFFORTS.  IF A NEW CHARGE IS FILED AGAINST NTEU BASED ON THE NEW
 LANGUAGE IN THE CIVIL SERVICE
 
    REFORM ACT, WE WILL CONTINUE TO RESIST IT." (G.C. EXH. 2).
 
    THIS IS A PROCEEDING UNDER THE STATUTE AND THE FINAL RULES AND
 REGULATIONS ISSUED THEREUNDER, 5 C.F.R. CHAPTER XIV, FED. REG., VOL. 45,
 NO. 12, JANUARY 17, 1980.  THE CHARGE IN 3-CO-26 WAS FILED OCTOBER 11,
 1979, BY THE UNITED STATES CUSTOMS SERVICE (G.C. EXH.  1(A)) AND A
 COMPLAINT AND NOTICE OF HEARING ISSUED ON JUNE 16, 1980, FOR A HEARING
 ON AUGUST 14, 1980.  (G.C. EXH. 1(E)).  THE CHARGE IN 3-CO-37 WAS FILED
 FEBRUARY 21, 1980 (G.C. EXH. 1(C)) BY THE U.S.  NUCLEAR REGULATORY
 COMMISSION AND A COMPLAINT AND NOTICE OF HEARING ISSUED ON JUNE 16, 1980
 (G.C.  EXH. 1(G)), ALSO, FOR A HEARING ON AUGUST 14, 1980.  ON JUNE 16,
 1980, THE REGIONAL DIRECTOR, FURTHER, ISSUED AN ORDER CONSOLIDATING
 CASES (G.C. EXH. 1(H)).  RESPONDENT'S ANSWERS WERE FILED ON JULY 14,
 1980 (3-CO-26-- G.C. EXH. 1(K);  3-CO-37-- G.C. EXH. 1(L)).  /8/
 PURSUANT TO THE NOTICES OF HEARING, A HEARING WAS DULY HELD BEFORE THE
 UNDERSIGNED ON AUGUST 14, 1980, IN WASHINGTON, D.C.  ALL PARTIES WERE
 REPRESENTED BY ABLE COUNSEL, WERE AFFORDED FULL OPPORTUNITY TO BE HEARD,
 TO EXAMINE AND CROSS-EXAMINE WITNESSES, TO INTRODUCE EVIDENCE BEARING ON
 THE ISSUES INVOLVED, AND TO PRESENT ORAL ARGUMENT.  AT THE CLOSE OF THE
 HEARING SEPTEMBER 15, 1980, WAS FIXED AS THE DATE FOR MAILING
 POST-HEARING BRIEFS.  ON SEPTEMBER 9, 1980, RESPONDENT FILED A TIMELY
 MOTION FOR EXTENSION OF TIME TO FILE BRIEFS, TO WHICH COUNSEL FOR THE
 GENERAL COUNSEL AND THE CHARGING PARTIES DID NOT OBJECT, AND, FOR GOOD
 CAUSE SHOW, THE TIME FOR MAILING BRIEFS WAS EXTENDED TO SEPTEMBER 22,
 1980.  /9/ EACH PARTY HAS TIMELY SUBMITTED AN EXCELLENT BRIEF, RECEIVED
 ON OR BEFORE SEPTEMBER 24, 1980, WHICH HAVE BEEN CAREFULLY CONSIDERED.
 UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS AND
 CONCLUSIONS:
 
                          I.  PRELIMINARY MATTERS
 
    RESPONDENT HAS ADVANCED TWO GROUNDS WHICH, IT ASSERTS, REQUIRE
 DISMISSAL OF THE COMPLAINTS, FIRST, THAT THE COMPLAINT IN CASE NO.
 3-CO-26 SHOULD BE DISMISSED FOR FAILURE TO COMPLY WITH THE AUTHORITY'S
 REGULATIONS, AND SECOND, THAT THE AGENCIES LACKED STANDING TO FILE THE
 CHARGES.  FOR REASONS SET FORTH HEREINAFTER, RESPONDENT'S ASSERTIONS ARE
 WHOLLY LACKING IN MERIT AND RESPONDENT'S REQUEST THAT THE COMPLAINTS BE
 DISMISSED IS DENIED.
 
                      A) COMPLIANCE WITH REGULATIONS
 
    THE PARTICULAR REGULATION RELIED UPON IS SEC. 2423.12(B)(7).  THE
 COMPLAINT IN EACH CASE DID, FULLY IN ACCORDANCE WITH SEC. 2423.12(B)(7),
 SET FORTH A CLEAR AND CONCISE DESCRIPTION OF THE ACTS WHICH ARE CLAIMED
 TO CONSTITUTE UNFAIR LABOR PRACTICES.  THUS, PARAGRAPH 6 OF THE
 COMPLAINT IN EACH CASE, ALLEGED THAT RESPONDENT HAS IMPLEMENTED A POLICY
 WHEREIN THE DECISION TO PROVIDE ATTORNEYS TO REPRESENT EMPLOYEES
 INCLUDED IN THE UNIT IS BASED SOLELY UPON WHETHER SUCH EMPLOYEES ARE
 MEMBERS.  THEN, IN PARAGRAPH 7 OF EACH COMPLAINT, IT WAS ALLEGED,
 
    "ON OR ABOUT SEPTEMBER 7, 1979, RESPONDENT, THROUGH ITS AGENT VINCENT
 L. CONNERY, ISSUED A
 
    MEMORANDUM TO SEVERAL OF RESPONDENT'S CHAPTERS STATING THAT
 RESPONDENT WILL NOT SUPPLY
 
    ATTORNEYS TO NON-MEMBERS TO HELP IN REPRESENTATIONAL MATTERS."
 
    RESPONDENT, BY ITS ANSWER IN EACH CASE, ADMITTED THAT THE MEMORANDUM
 OF SEPTEMBER 7, 1979, AS ALLEGED, WAS IN FACT ISSUED AND STATED THAT IT
 WAS ISSUED "TO SEVERAL NTEU CHAPTERS." AS NOTED IN THE ORDER DENYING
 MOTION FOR MORE DEFINITE STATEMENT,
 
    " . . . FROM RESPONDENT'S ANSWERS IT IS OBVIOUS THAT RESPONDENT WAS,
 AND IS, FULLY AWARE OF
 
    THE CHAPTERS TO WHICH IT ISSUED ITS MEMORANDUM OF SEPTEMBER 7, 1979.
 NOT ONLY HAS RESPONDENT
 
    UTTERLY FAILED TO SHOW THAT THE INFORMATION IS NECESSARY FOR THE
 PREPARATION OF ITS DEFENSE,
 
    BUT IT IS APPARENT THAT RESPONDENT'S MOTION IS NO MORE THAN A THINLY
 VEILED TACTIC FOR
 
    DELAY." (G.C. EXH. 1(V)).
 
    THE SUFFICIENCY OF A COMPLAINT MUST BE DETERMINED ON THE BASIS OF THE
 COMPLAINT WHEN ISSUED.  AS FURTHER NOTED IN THE ORDER DENYING MOTION FOR
 MORE DEFINITE STATEMENT, IT WAS DETERMINED THAT,
 
    "FULLY IN ACCORDANCE WITH THE REQUIREMENTS OF SECTION 2423.12(B) OF
 THE RULES AND
 
    REGULATIONS, THE COMPLAINTS IN EACH CASE APPRISE RESPONDENT OF THE
 NATURE OF THE ALLEGATIONS
 
    WITH SUFFICIENT PARTICULARLY TO PREPARE ITS DEFENSE . . . " (G.C.
 EXH. 1(V)).
 
    RESPONDENT, IN EFFECT, CONCEDES THAT THE COMPLAINTS MET ALL
 REQUIREMENTS OF SEC. 2423.12(B)(7) WHEN ISSUED;  BUT NOW ASSERTS THAT "
 . . . ONCE THE REGIONAL DIRECTOR BECOMES AWARE OF THE NAMES, PLACES, AND
 DATES OF THE COMMISSION OF THE ALLEGED UNFAIR LABOR PRACTICES, HE/SHE IS
 OBLIGATED TO COMMUNICATE SUCH ALLEGATIONS TO THE RESPONDENT.  FAILURE TO
 MAKE SUCH A SEASONABLE AMENDMENT WOULD ALLOW THE REGIONAL DIRECTOR TO
 ELIMINATE THE REQUIREMENT OF SPECIFICITY ALTOGETHER IN CONTRAVENTION OF
 THE AFORECITED REGULATION." (RESPONDENT'S BRIEF, P. 7).  SUCH ASSERTION
 IS WHOLLY CONTRIVED AND IS WHOLLY LACKING IN MERIT.  A COMPLAINT WHICH
 APPRISES A RESPONDENT OF THE NATURE OF THE ALLEGATIONS WITH SUFFICIENT
 PARTICULARLY TO PREPARE ITS DEFENSE DOES NOT BECOME DEFECTIVE BECAUSE
 INVESTIGATION DEVELOPS PARTICULAR EVIDENCE OF THE VIOLATION ALLEGED.
 
    NEITHER THE STATUTE NOR THE REGULATIONS PROVIDE FOR PRE-TRIAL
 DISCOVERY.  INDEED, THE STATUTE, AS CONTRASTED WITH THE CONCLUDING
 SENTENCE OF SECTION 10(B) OF THE NATIONAL LABOR RELATIONS ACT, PROVIDES,
 IN PART, AS FOLLOWS:
 
    " . . . ANY SUCH HEARING SHALL, TO THE EXTENT PRACTICABLE, BE
 CONDUCTED IN ACCORDANCE WITH
 
    THE PROVISIONS OF SUBCHAPTER II OF CHAPTER 5 OF THIS TITLE
 (ADMINISTRATIVE PROCEDURES ACT),
 
    EXCEPT THAT THE PARTIES SHALL NOT BE BOUND BY RULES OF EVIDENCE,
 WHETHER STATUTORY, COMMON
 
    LAW, OR ADOPTED BY A COURT . . . . " (5 U.S.C. 7118(A)(6)).  SEE,
 ALSO, SEC. 2423.17 OF THE
 
    REGULATIONS.
 
    RESPONDENT'S MOTION, ALTHOUGH ENTITLED "MOTION FOR MORE DEFINITE
 STATEMENT", WAS, IN REALITY, A BROAD REQUEST FOR PRE-TRIAL DISCOVERY AND
 WAS DENIED, INTER ALIA, BECAUSE "RESPONDENT IN THIS INSTANCE HAS SHOWN
 NO GROUNDS THAT WOULD WARRANT SUCH PRE-TRIAL DISCOVERY" (G.C. EXH.
 1(V)).  CF., NLRB V. VAPOR BLAST MFG. CO., 287 F.2D 492, 47 LRRM 2670
 (7TH CIR.  1961), CERT. DENIED, 368 U.S. 823(1961);  NLRB V. IRON
 WORKERS, LOCAL 433, 600 F.2D 770, 101 LRRM 3119 (9TH CIR. 1979), CERT.
 DENIED,-- U.S.-- , 103 LRRM 2668(1980).  WITH FULL RECOGNITION OF THE
 AUTHORITY GRANTED BY SEC. 2423.19 OF THE REGULATIONS, RESPONDENT'S
 MOTION, RENEWED AT THE COMMENCEMENT OF THE HEARING, AND APPROPRIATELY
 RESTRICTED TO LOCATIONS WHERE THE MEMORANDUM OF SEPTEMBER 7, 1979, HAD
 BEEN POSTED BY RESPONDENT, WAS GRANTED.  NEVERTHELESS, THE COMPLAINTS
 HAD FROM THE OUTSET APPRISED RESPONDENT OF THE NATURE OF THE
 ALLEGATIONS, INCLUDING THE ALLEGATION IS PARAGRAPH 8 OF THE COMPLAINT IN
 CASE NO. 3-CO-26, THAT THE MEMORANDUM BEEN POSTED BY RESPONDENT, WITH
 SUFFICIENT PARTICULARLY TO ENABLE RESPONDENT TO PREPARE ITS DEFENSE.  BY
 NO STRETCH OF THE IMAGINATION WAS THIS A FAILURE TO ALLEGE A VIOLATION,
 COMPARE, NLRB V. MAJESTIC WEAVING COMPANY, 355 F.2D 861, 61 LRRM 2132,
 2137 (2D CIR. 1966), WHICH MIGHT BE INDICATIVE OF A DENIAL OF DUE
 PROCESS.  WITH KNOWLEDGE THAT THE COMPLAINT ASSERTED THAT RESPONDENT HAD
 POSTED THE MEMORANDUM, RESPONDENT COULD READILY ASCERTAIN THROUGH ITS
 CHAPTERS WHETHER THEY HAD, OR HAD NOT, POSTED THE MEMORANDUM.
 
                  B) STANDING OF AGENCIES TO FILE CHARGES
 
    THE STATUTE DEFINES "PERSON" AS FOLLOWS"
 
    "(A) FOR THE PURPOSE OF THIS CHAPTER--
 
    "(1) 'PERSON' MEANS AN INDIVIDUAL, LABOR ORGANIZATION, OR AGENCY;" (5
 
    U.S.C. 7103(A)(1)).  (INCORPORATED BY REFERENCE AS PART OF SEC.
 2421.2(A) OF THE REGULATIONS).
 
    THE REGULATIONS DEFINE "ACTIVITY" AS FOLLOWS:
 
    "'ACTIVITY' MEANS ANY FACILITY, ORGANIZATIONAL ENTITY, OR
 GEOGRAPHICAL SUBDIVISION OR
 
    COMBINATION THEREOF, OF ANY AGENCY." (5 C.F.R. 2421.4).
 
    THE REGULATIONS DESCRIBE WHO MAY FILE CHARGES AS FOLLOWS:
 
    "WHO MAY FILE CHARGES.
 
    "AN ACTIVITY, AGENCY OR LABOR ORGANIZATION MAY BE CHARGED BY ANY
 PERSON WITH HAVING ENGAGED
 
    IN OR ENGAGING IN ANY UNFAIR LABOR PRACTICE PROHIBITED UNDER 5 U.S.C.
 7116." (5
 
    C.F.R. 2423.3).
 
    THERE IS NO QUESTION THAT, UNDER THE STATUTE AND THE REGULATIONS DULY
 ISSUED THEREUNDER, THE UNITED STATES CUSTOMS SERVICE AND THE U.S.
 NUCLEAR REGULATORY COMMISSION WERE "PERSONS" /10/ FULLY AUTHORIZED TO
 FILE CHARGES OF UNFAIR LABOR PRACTICES AGAINST RESPONDENT, I.E., A LABOR
 ORGANIZATION MAY BE CHARGED BY ANY PERSON WITH HAVING ENGAGED IN OR
 ENGAGING IN ANY UNFAIR LABOR PRACTICE PROHIBITED UNDER SEC. 16.  INDEED,
 RESPONDENT DOES NOT ASSERT TO THE CONTRARY;  BUT, RATHER, CONTENDS THAT
 "THE CHARGING PARTIES (DO NOT) HAVE A LEGITIMATE INTEREST IN PROTECTING
 THE RIGHTS ASSERTED IN THEIR CHARGES." (RES. BRIEF, P. 9).  SUCH
 CONTENTION IS WHOLLY WITHOUT MERIT.
 
    CONGRESS, IN DEVISING THE STATUTE, RADICALLY ALTERED PROSECUTION OF
 UNFAIR LABOR PRACTICE COMPLAINTS BY THE CHARGING PARTY AS THE EXECUTIVE
 ORDER HAD PROVIDED, AND UNDER THE STATUTE, AS IS TRUE UNDER THE NATIONAL
 LABOR RELATIONS ACT, AFTER WHICH CONGRESS INTENTIONALLY AND CONSCIOUSLY
 PATTERNED THE STRUCTURE OF THE STATUTE, THE PURPOSE OF THE CHARGE NOW IS
 TO SET IN MOTION THE MACHINERY OF AN INQUIRY BY THE GENERAL COUNSEL.
 CONGRESS UNDER THE STATUTE HAS IMPOSED UPON THE GENERAL COUNSEL OF THE
 AUTHORITY RESPONSIBILITY FOR MAKING THAT INVESTIGATION AND OF FRAMING
 THE ISSUES, NOT UPON THE CHARGING PARTY.  ALTHOUGH A CHARGE IS ESSENTIAL
 TO THE INVOCATION OF JURISDICTION OF THE AUTHORITY, ONCE THE
 INVESTIGATORY MACHINERY OF THE AUTHORITY IS SET IN MOTION, BY THE
 CHARGE, IT IS THE GENERAL COUNSEL'S EXCLUSIVE RESPONSIBILITY TO
 INVESTIGATE AND, IF HE FINDS CAUSE TO BELIEVE THAT AN UNFAIR LABOR
 PRACTICE HAS OCCURRED, TO ISSUE A COMPLAINT WHICH HE ADJUDICATES IN THE
 PUBLIC INTEREST.  SEC. 18(A)(1) PROVIDES, IN PART, "IF ANY AGENCY OR
 LABOR ORGANIZATION IS CHARGED BY ANY PERSON WITH HAVING ENGAGED IN OR
 ENGAGING IN AN UNFAIR LABOR PRACTICE, THE GENERAL COUNSEL SHALL
 INVESTIGATE THE CHARGE AND MAY ISSUE . . . A COMPLAINT".  ACCORDINGLY,
 UNDER THE STATUTE, THE UNITED STATES CUSTOMS SERVICE AND THE U.S.
 NUCLEAR REGULATORY COMMISSION HAD STANDING TO FILE THE CHARGES AND
 WHETHER THEY HAVE RESPONSIBILITY OR LIABILITY IN REGARD TO THE ALLEGED
 UNFAIR LABOR PRACTICE IS IMMATERIAL.  THE GENERAL COUNSEL, IN THE PUBLIC
 INTEREST, PROSECUTES THE COMPLAINTS TO PROTECT THE RIGHTS ASSURED BY THE
 STATUTE.  CF. NATIONAL LABOR RELATIONS BOARD V. FANT MILLING CO., 360
 U.S. 301, 307-308(1959);  DEPARTMENT OF THE INTERIOR, U.S. GEOLOGICAL
 SURVEY, CONSERVATION DIVISION, GULF OF MEXICO REGION, METAIRIE,
 LOUISIANA AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 3457, CASE NO. 6-CA-209 (ALJ 1980).
 
                               FINDINGS /11/
 
    THE FACTS, AS MATERIAL, ARE NEITHER COMPLEX NOR SERIOUSLY DISPUTED
 AND MAY BE BRIEFLY STATED:
 
    1.  PRESIDENT CONNERY'S MEMORANDUM DATED SEPTEMBER 7, 1979 (G.C.
 EXH. 2), WAS TRANSMITTED TO EACH OF NTEU CHAPTER PRESIDENT;  HAS NOT
 BEEN RESCINDED;  AND, AS MR. JOHN F.  BUFE, DEPUTY GENERAL COUNSEL OF
 NTEU, TESTIFIED, "TO THE EXTENT THAT OUR POLICY CAN BE DESCRIBED IN ONE
 SENTENCE, THIS IS GENERALLY ACCURATE" (TR. 109), ALTHOUGH HE FURTHER
 TESTIFIED THAT IN ALL INSTANCES IN DECIDING WHETHER TO PROVIDE ATTORNEY
 ASSISTANCE SEVERAL FACTORS ARE CONSIDERED:  A) MERIT OF THE CASE;  B)
 THE DEGREE OF IMPACT ON EMPLOYEES;  C) ABILITY OF LOCAL CHAPTER
 REPRESENTATIVES;  D) AVAILABILITY OF AN ATTORNEY;  AND E) MEMBERSHIP
 (TR. 104-107).
 
    2.  MR. BUFE TESTIFIED THAT THE NATIONAL OFFICE OF NTEU "IS BASICALLY
 A CREATION OF THE NATIONAL PRESIDENT OF NTEU THROUGH OUR CONSTITUTION
 AND BYLAWS.  HE IS EMPOWERED TO EMPLOY A STAFF TO PROVIDE ASSISTANCE TO
 OUR LOCAL CHAPTER PEOPLE." (TR.96);  THAT CURRENTLY NTEU REPRESENTS
 APPROXIMATELY 120,000 BARGAINING UNIT EMPLOYEES AND, INCLUDING RETIREES,
 HAS APPROXIMATELY 65,000 MEMBERS (TR. 98).
 
    3.  NTEU HAS, CURRENTLY, 40 LAWYERS;  AND NATIONAL OFFICE ATTORNEYS
 ARE ASSIGNED TO SERVICE PARTICULAR CHAPTERS, GENERALLY "SOME SIX OR
 EIGHT CHAPTERS".  (TR.  100).
 
    4.  MS. SHARYN DANCH WAS INITIALLY EMPLOYED BY NTEU IN MID 1978 AS AN
 ASSISTANT COUNSEL AND IN MARCH, 1980, BECAME AN ASSOCIATE GENERAL
 COUNSEL.  AS AN ASSISTANT COUNSEL, SHE WAS ASSIGNED CHAPTERS OF THE
 INTERNAL REVENUE SERVICE IN THE MIDWEST REGION, TWO SMALL CHAPTERS IN
 NORTH AND SOUTH DAKOTA AND THE NUCLEAR REGULATORY COMMISSION IN
 WASHINGTON, D.C.  AS AN ASSOCIATE GENERAL COUNSEL, SHE SUPERVISES
 ASSISTANT COUNSELS AND CONTINUES TO REPRESENT THE NUCLEAR REGULATORY
 COMMISSION.  SHE TESTIFIED THAT IN DETERMINING WHETHER TO SUPPLY DIRECT
 REPRESENTATION SHE APPLIES THE FACTORS THAT MR. BUFE DESCRIBED,
 INCLUDING "THE MEMBERSHIP OF THE EMPLOYEE INVOLVED" (TR. 124).  ALTHOUGH
 SHE STATED SHE DID NOT CHECK ON UNION MEMBERSHIP, SHE ADMITTED THAT THE
 REASON SHE DID NOT CHECK UNION MEMBERSHIP WAS BECAUSE "I ASSUME THAT
 CASES REFERRED TO ME ARE CASES INVOLVING A MEMBER OF OUR UNION." (TR.
 126, SEE, ALSO, TR.  137).  SHE FURTHER TESTIFIED THAT IF SHE LEARNED
 THAT A CASE INVOLVED A NON-MEMBER "I DO TAKE THAT INTO CONSIDERATION."
 (TR. 126).
 
    5.  TWO NON-MEMBERS OF NTEU, MR. GEORGE GEORGIEV AND MR. FELIX
 LITTON, WERE REPRESENTED IN THE PROCESSING OF THEIR GRIEVANCES BY A
 PRIVATE ATTORNEY.  THE GRIEVANCES WERE NOT RESOLVED AND MR. JAMES D.
 THOMAS, PRESIDENT OF CHAPTER 208, IN MR. CONNERY'S NAME, ON JUNE 8,
 1979, SOUGHT TO INVOKE ARBITRATION (RES. EXH. 2), AS ARBITRATION MUST BE
 INVOKED BY THE NATIONAL OFFICE.  MS. DANCH TESTIFIED THAT SHE TALKED TO
 GRIEVANTS' PRIVATE ATTORNEY AND TOLD HIM THAT SHE WOULD REPRESENT THEM,
 GEORGIEV AND LITTON, IN THE HEARING AND THAT HE, IF HE LIKED, COULD SIT
 AS CO-COUNSEL BUT SHE WOULD RUN THE HEARING.  THE NUCLEAR REGULATORY
 COMMISSION DECLINED TO PROCEED TO ARBITRATION AND ON, OR ABOUT, JULY 2,
 1979, AN UNFAIR LABOR PRACTICE CHARGE WAS FILED ALLEGING A VIOLATION OF
 THE STATUTE AS THE RESULT OF THE FAILURE AND REFUSAL TO ARBITRATE THE
 GRIEVANCES (RES. EXH. 3);  HOWEVER THE CHARGE WAS DISMISSED (TR. 128).
 
    6.  PRESIDENT CONNERY'S MEMORANDUM OF SEPTEMBER 7 (G.C. EXH. 2) WAS
 POSTED ON UNION BULLETIN BOARDS IN CUSTOMS REGION VII, LOS ANGELES,
 CALIFORNIA, AND IN CUSTOMS REGION IX, INTERNATIONAL FALLS, MINNESOTA.
 ON OCTOBER 9, 1979, MR. JIM PHILLIPS, NTEU CHAPTER PRESIDENT IN THE LOS
 ANGELES, CALIFORNIA, REGIONAL OFFICE, REQUESTED THAT THE MEMORANDUM BE
 POSTED;  POSTING WAS APPROVED ON OCTOBER 9, 1979, AND WAS OBSERVED ON
 THE BULLETIN BOARDS AS LATE AS JULY 29, 1980.  IN LATE SEPTEMBER OR
 EARLY OCTOBER, 1979, NTEU CHAPTER PRESIDENT TOM MURRAY, IN INTERNATIONAL
 FALLS, MINNESOTA, REQUESTED THAT THE MEMORANDUM BE APPROVED FOR POSTING;
  POSTING WAS APPROVED;  THE MEMORANDUM WAS POSTED ON THE NTEU BULLETIN
 BOARD AT THE INTERNATIONAL FALLS BRIDGE OFFICE;  AND WAS SEEN ON THE
 BULLETIN BOARD AS LATE AS JULY 31, 1980.
 
    7.  MR. NATE BENSON, CHIEF OF NUCLEAR REGULATORY COMMISSION'S
 LABOR-MANAGEMENT AND EMPLOYEE RELATIONS BRANCH, TESTIFIED THAT REMOVAL
 ACTIONS HAD BEEN PROPOSED FOR FOUR BARGAINING UNIT EMPLOYEES SINCE MARCH
 1979 (SEE, ALSO, G.C. EXH. 3).  TWO WERE MEMBERS AND WERE REPRESENTED BY
 NTEU ATTORNEYS;  ONE, MR. WARREN WASHINGTON, WAS NOT A UNION MEMBER AND
 WAS NOT REPRESENTED BY NTEU ATTORNEYS;  AND THE FOURTH, CYNTHIA Y.
 TAYLOR, RECEIVED NO UNION ASSISTANCE, BUT MR. THOMAS, PRESIDENT OF
 CHAPTER 208, PROFESSED IGNORANCE AS TO HER MEMBERSHIP STATUS (TR.
 158-159).  MR. RONALD CLARY WAS REPRESENTED AT HIS ORAL REPLY BY MS.
 DANCH AND AT THE MERIT SYSTEMS PROTECTION BOARD, BY TWO NTEU ATTORNEYS,
 MS. DANCH AND AT THE MERIT SYSTEMS PROTECTION BOARD, BY TWO NTEU
 ATTORNEYS, MS. DANCH AND MS. SUSAN SILBER.  MR. RIDEN WAS REPRESENTED AT
 HIS ORAL REPLY AT GLEN ELLYN, ILLINOIS, BY NTEU ATTORNEY GEORGE LACY,
 WHO HAD FLOWN TO THE CHICAGO AREA FOR THAT PURPOSE;  /12/ AND MR. LACY
 ALSO REPRESENTED MR. RIDEN AT THE MERIT SYSTEMS PROTECTION PROTECTION
 BOARD.  BY CONTRAST, MR. WASHINGTON, A NON-MEMBER WAS REPRESENTED BY A
 STEWARD.
 
                                CONCLUSIONS
 
    I HAVE NO DOUBT WHATEVER THAT RESPONDENT, OR ANY UNION, MAY PROPERLY
 ESTABLISH CRITERIA FOR PROVIDING THE ASSISTANCE OF ATTORNEYS TO MEMBERS
 OF BARGAINING UNITS SUCH AS:  NATURE OF THE CASE;  AVAILABILITY OF AN
 ATTORNEY;  IMPORTANCE OF ISSUE INVOLVED, /13/ PROVIDED SUCH CRITERIA ARE
 APPLIED UNIFORMLY TO ALL MEMBERS OF THE BARGAINING UNIT.  BUT ANY
 CRITERIA WHEREBY REPRESENTATION OF THE INTERESTS OF ALL EMPLOYEES IN THE
 UNIT IS DISCRIMINATORY OR IS BASED IN ANY MANNER ON LABOR ORGANIZATION
 MEMBERSHIP IS PROSCRIBED BY SEC. 14(A)(1) OF THE STATUTE.
 
    AT THE OUTSET, IT MUST BE RECOGNIZED THAT SEC. 14(A)(1) OF THE
 STATUTE, UNLIKE SEC. 9(A) OF THE NATIONAL LABOR RELATIONS ACT, CONTAINS
 A SPECIFIC NON-DISCRIMINATION PROVISION.  THUS, SEC. 14(A)(1) PROVIDES
 AS FOLLOWS:
 
    "(A)(1) A LABOR ORGANIZATION WHICH HAS BEEN ACCORDED EXCLUSIVE
 RECOGNITION IS THE EXCLUSIVE
 
    REPRESENTATIVE OF THE EMPLOYEES IN THE UNIT IT REPRESENTS AND IS
 ENTITLED TO ACT FOR, AND
 
    NEGOTIATE COLLECTIVE BARGAINING AGREEMENTS COVERING, ALL EMPLOYEES IN
 THE UNIT.  AN EXCLUSIVE
 
    REPRESENTATIVE IS RESPONSIBLE FOR REPRESENTING THE INTERESTS OF ALL
 EMPLOYEES IN THE UNIT IT
 
    REPRESENTS WITHOUT DISCRIMINATION AND WITHOUT REGARD TO LABOR
 ORGANIZATION MEMBERSHIP." (5 U.S.C. 7114(A)(1)).
 
    (THE FIRST SENTENCE OF SEC. 9(A) OF THE NLRA IS SUBSTANTIALLY SIMILAR
 TO THE FIRST SENTENCE
 
    OF SEC. 14(A)(1) OF THE STATUTE AND PROVIDES AS FOLLOWS:
 
    "SEC. 9(A) REPRESENTATIVES DESIGNATED OR SELECTED FOR THE PURPOSE OF
 COLLECTIVE BARGAINING
 
    BY THE MAJORITY OF THE EMPLOYEES IN A UNIT APPROPRIATE FOR SUCH
 PURPOSES, SHALL BE THE
 
    EXCLUSIVE REPRESENTATIVE OF ALL THE EMPLOYEES IN SUCH UNIT FOR THE
 PURPOSES OF COLLECTIVE
 
    BARGAINING IN RESPECT TO RATES OF PAY, WAGES, HOURS OF EMPLOYMENT, OR
 OTHER CONDITIONS OF
 
    EMPLOYMENT . . . ")
 
    SEC. 8(B)(1) OF THE NLRA, ENACTED IN 1947, PROVIDES:
 
    "(B) IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION OR
 ITS AGENTS--
 
    (1) TO RESTRAIN OR COERCE (A) EMPLOYEES IN THE EXERCISE OF THE RIGHTS
 GUARANTEED IN SECTION
 
    7 . . . "
 
    HOWEVER, AS THE SUPREME COURT NOTED IN VACA V. SIPES, 386 U.S.
 171(1967), THE NLRB DID NOT UNTIL MIRANDA FUEL CO., 140 NLRB 181, 51
 LRRM 1584(1962), INTERPRET A BREACH OF A UNION'S DUTY OF FAIR
 REPRESENTATION AS AN UNFAIR LABOR PRACTICE.
 
    IT IS SIGNIFICANT THAT SEC. 14(A)(1) OF THE STATUTE SPECIFICALLY
 PROVIDES THAT "AN EXCLUSIVE REPRESENTATIVE IS RESPONSIBLE FOR
 REPRESENTING THE INTERESTS OF ALL EMPLOYEES IN THE UNIT IT REPRESENTS
 WITHOUT DISCRIMINATION AND WITHOUT REGARD TO LABOR ORGANIZATION
 MEMBERSHIP." VIOLATION OF THIS OBLIGATION CONSTITUTES AN UNFAIR LABOR
 PRACTICE UNDER SEC.  16(B)(8).  OF COURSE, SUCH CONDUCT MAY ALSO VIOLATE
 SEC. 16(B)(1);  BUT A UNION COULD BE GUILTY OF AN UNFAIR LABOR PRACTICE
 IN VIOLATION OF SEC. 16(B)(8) IF IT FAILED OR REFUSED TO REPRESENT THE
 INTERESTS OF ALL EMPLOYEES IN THE UNIT AND/OR WITHOUT REGARD TO UNION
 MEMBERSHIP, WHETHER OR NOT ITS CONDUCT VIOLATED SEC. 16(B)(1).
 
    RESPONDENT'S ASSERTION THAT A UNION'S STATEMENT OF POLICY, SUCH AS
 PRESIDENT CONNERY'S MEMORANDUM OF SEPTEMBER 7, 1979, TO CONSTITUTE A
 VIOLATION OF THE STATUTE MUST BE COMMUNICATED TO THE EMPLOYEES AFFECTED,
 EITHER BY PUBLICATION, AS IN 1 FLRA NO. 104, OR BY POSTING, OR OTHERWISE
 BE DISSEMINATED TO EMPLOYEES IN UNITS FOR WHICH THE UNION HOLDS
 EXCLUSIVE RECOGNITION, IS, IN MY OPINION, WHOLLY WITHOUT MERIT.  IT WAS
 THE "POLICY OF DISPARATE TREATMENT AMONG EMPLOYEES IN THE EXCLUSIVELY
 RECOGNIZED UNITS, BASED SOLELY UPON UNION MEMBERSHIP" (1 FLRA NO. 104 AT
 P. 5) WHICH THE AUTHORITY, IN NATIONAL TREASURY EMPLOYEES UNION (NTEU),
 CHAPTER 202, SUPRA, FOUND VIOLATED SEC. 19(B)(1) OF EXECUTIVE ORDER
 11491, AS AMENDED, NOT THE MANNER OF ESTABLISHMENT OF THE POLICY, WHICH
 THERE HAPPENED TO HAVE BEEN THROUGH COMMUNICATIONS TO UNIT EMPLOYEES.
 HERE, THE RECORD SHOWS THAT PRESIDENT CONNERY'S MEMORANDUM OF SEPTEMBER
 7, 1979, STATED, AND REAFFIRMED, RESPONDENT'S POLICY, THAT "NTEU WILL
 NOT SUPPLY ATTORNEYS TO NON-MEMBERS TO HELP IN THE REPRESENTATIONAL
 EFFORTS.";  THAT HIS MEMORANDUM WAS TRANSMITTED TO EACH CHAPTER
 PRESIDENT OF RESPONDENT;  AND THAT RESPONDENT'S LEGAL STAFF, AS CONCEDED
 BY ITS DEPUTY GENERAL COUNSEL, FOLLOWS THIS POLICY AND, ACCORDINGLY, IN
 ALL INSTANCES IN DECIDING WHETHER TO PROVIDE ATTORNEY ASSISTANCE,
 MEMBERSHIP, OR, MORE ACCURATELY, NON-MEMBERSHIP, IS A FACTOR CONSIDERED.
 
    IMPLEMENTATION OF "A POLICY WHEREIN THE DECISION TO PROVIDE ATTORNEYS
 TO REPRESENT EMPLOYEES . . . IS BASED SOLELY UPON WHETHER SUCH EMPLOYEES
 ARE MEMBERS OF RESPONDENT, IS ALLEGED IN PARAGRAPH 6 OF THE COMPLAINT IN
 EACH CASE TO BE IN VIOLATION OF SEC. 14(A)(1) OF THE STATUTE AND TO
 CONSTITUTE AN UNFAIR LABOR PRACTICE IN VIOLATION OF SEC. 16(B)(1) AND
 (8) OF THE STATUTE.  IMPLEMENTATION OF SUCH POLICY, EVEN IF WHOLLY
 RESTRICTED TO UNION OFFICIALS, WOULD, NEVERTHELESS, VIOLATE SECS.
 14(A)(1) AND 16(B)(8) OF THE STATUTE.  INDEED, IMPLEMENTATION OF A
 POLICY OF DISPARATE TREATMENT BASED SOLELY UPON UNION MEMBERSHIP WOULD
 CONSTITUTE A VIOLATION OF SECS. 14(A)(1) AND 16(B)(8) OF THE STATUTE
 WHETHER OR NOT THE POLICY HAD BEEN ARTICULATED EITHER IN WRITTEN OR ORAL
 FORM.  NECESSARILY, WHERE THE POLICY IS STATED IN A WRITTEN MEMORANDUM
 FROM THE NATIONAL PRESIDENT, IS TRANSMITTED TO ALL CHAPTER PRESIDENTS
 AND, ADDITIONALLY, IS DISTRIBUTED INTERNALLY TO NATIONAL OFFICE
 OFFICIALS OF RESPONDENT, INCLUDING ITS LEGAL STAFF, SUCH ACTION MAY
 ESTABLISH NOT ONLY THE POLICY, BUT MAY CONSTITUTE IMPLEMENTATION OF THE
 POLICY WITHOUT MORE.  THAT IS, COMMUNICATION OF THE POLICY TO UNIT
 EMPLOYEES IS IMMATERIAL INASMUCH AS EXISTENCE OF SUCH POLICY AND ITS
 IMPLEMENTATION WOULD FULLY SUPPORT A VIOLATION.
 
    MOREOVER, EVEN IF COMMUNICATION OF PRESIDENT CONNERY'S MEMORANDUM TO
 UNIT EMPLOYEES WERE NECESSARY TO SUPPORT A VIOLATION, GENERAL COUNSEL
 HAS SHOWN THAT RESPONDENT'S CHAPTER PRESIDENTS AT LOS ANGELES,
 CALIFORNIA, AND AT INTERNATIONAL FALLS, MINNESOTA, DID POST THE
 MEMORANDUM ON UNION BULLETIN BOARDS IN CUSTOMS REGION VII, LOS ANGELES,
 AND IN CUSTOMS REGION IX, INTERNATIONAL FALLS.  APPROVAL BY CUSTOMS OF
 THE REQUEST OF THE RESPECTIVE CHAPTER PRESIDENTS TO POST THE MEMORANDUM
 ON UNION BULLETIN BOARDS IS NOT MATERIAL.  WHILE I DO NOT BELIEVE THAT
 APPROVAL OF A UNION'S REQUEST TO POST A DOCUMENT CONSTITUTES AGENCY, OR
 ACTIVITY, ENDORSEMENT OR APPROVAL OF THE CONTENTS OF THE DOCUMENT SOUGHT
 TO BE POSTED, THE AGENCY, OR ACTIVITY, IS NOT PRECLUDED, IN ANY EVENT,
 FROM FILING AN UNFAIR LABOR PRACTICE CHARGE CONCERNING THE DOCUMENT THE
 UNION POSTED.  CF. NATIONAL LABOR RELATIONS BOARD V. INDIANA & MICHIGAN
 ELECTRIC COMPANY, 318 U.S. 9(1943);  NATIONAL LABOR RELATIONS BOARD V.
 CHAUFFEURS, TEAMSTERS & HELPERS, LOCAL NO. 364.  INTERNATIONAL
 BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
 AMERICA, 274 F.2D 19 (7TH CIR. 1960).  ONCE AN UNFAIR LABOR PRACTICE
 CHARGE IS FILED, JURISDICTION OF THE AUTHORITY ATTACHES, THE GENERAL
 COUNSEL OF THE AUTHORITY, IF HE FINDS CAUSE TO BELIEVE THAT AN UNFAIR
 LABOR PRACTICE HAS OCCURRED, HAS EXCLUSIVE JURISDICTION UNDER THE
 STATUTE TO ISSUE A COMPLAINT WHICH HE ADJUDICATES IN THE PUBLIC
 INTEREST.
 
    AS PREVIOUSLY NOTED, A UNION IS REQUIRED BY SEC. 14(A)(1) OF THE
 STATUTE TO REPRESENT THE INTERESTS OF ALL EMPLOYEES IN THE UNIT IT
 REPRESENTS WITHOUT DISCRIMINATION AND WITHOUT REGARD TO LABOR
 ORGANIZATION MEMBERSHIP.  FAILURE TO COMPLY WITH THE OBLIGATION IMPOSED
 BY SEC. 14(A)(1) CONSTITUTES AN UNFAIR LABOR PRACTICE IN VIOLATION OF
 SEC. 16(B)(8) OF THE STATUTE.  THE PROVISION OF SEC. 14(A)(1) OF THE
 STATUTE THAT AN EXCLUSIVE REPRESENTATIVE,
 
    " . . . IS RESPONSIBLE FOR REPRESENTING THE INTERESTS OF ALL
 EMPLOYEES IN THE UNIT IT
 
    REPRESENTS WITHOUT DISCRIMINATION AND WITHOUT REGARD TO LABOR
 ORGANIZATION MEMBERSHIP" IS SUBSTANTIALLY IDENTICAL TO THE WHOLLY LIKE
 PROVISION OF SEC. 10(E) OF EXECUTIVE ORDER 11491, AS AMENDED.  THE
 AUTHORITY, IN NATIONAL TREASURY EMPLOYEES UNION (NTEU), CHAPTER 202,
 SUPRA, HELD THAT A POLICY OF DISPARATE TREATMENT AMONG EMPLOYEES IN THE
 EXCLUSIVELY RECOGNIZED UNITS, BASED SOLELY UPON UNION MEMBERSHIP,
 VIOLATED SEC. 19(B)(1) OF EXECUTIVE ORDER 11491, AS AMENDED.  INASMUCH
 AS THE PROVISIONS OF SECS. 10(E) AND 19(B)(1) OF THE EXECUTIVE ORDER ARE
 SUBSTANTIALLY IDENTICAL TO THE APPLICABLE PROVISIONS OF SECS. 14(A)(1)
 AND 16(B)(1) OF THE STATUTE, FOR REASONS WELL STATED BY THE AUTHORITY IN
 NATIONAL TREASURY EMPLOYEES UNION (NTEU), CHAPTER 202, SUPRA, I FURTHER
 CONCLUDE THAT A POLICY OF DISPARATE TREATMENT AMONG EMPLOYEES IN THE
 EXCLUSIVELY RECOGNIZED UNITS, BASED SOLELY UPON UNION MEMBERSHIP ALSO
 VIOLATES SEC. 16(B)(1) OF THE STATUTE.  SEE, ALSO, FEDERAL AVIATION
 SCIENCE AND TECHNOLOGICAL ASSOCIATION DIVISION, NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES, 2 FLRA NO. 103(1980).  MOREOVER, A VIOLATION OF
 SEC. 16(B)(8) WOULD, IN ANY EVENT, CONSTITUTE A DERIVATIVE VIOLATION OF
 SEC. 16(B)(1) OF THE STATUTE.
 
    RESPONDENT'S POLICY OF DISPARATE TREATMENT AMONG EMPLOYEES IN UNITS
 FOR WHICH IT HOLDS EXCLUSIVE RECOGNITION, BASED SOLELY UPON UNION
 MEMBERSHIP, WAS FIRMLY AND UNEQUIVOCALLY ESTABLISHED.  THUS, BY WAY OF
 EXAMPLE, THE RECORD SHOWS, INTER ALIA, THE FOLLOWING.  FIRST, PRESIDENT
 CONNERY IN HIS MEMORANDUM OF SEPTEMBER 7, 1979, STATED, AFTER DISCUSSION
 OF THE AUTHORITY'S DECISION IN NATIONAL TREASURY EMPLOYEES UNION (NTEU),
 CHAPTER 202, ET AL., SUPRA, WHICH HE STATED HE FIRMLY BELIEVED WAS WRONG
 BUT WOULD NOT BE APPEALED BECAUSE IT WAS BASED ON AN INTERPRETATION OF
 EXECUTIVE ORDER 11491, AS AMENDED, "SOMETHING NO LONGER IN EXISTENCE",
 STATED, "HOWEVER, THE FACT THAT WE ARE NOT APPEALING THE DECISION DOES
 NOT MEAN NTEU POLICY HAS CHANGED.  NTEU WILL NOT SUPPLY ATTORNEYS TO
 NON-MEMBERS TO HELP IN THE REPRESENTATIONAL EFFORTS . . . "
 
    SECOND, RESPONDENT'S DEPUTY GENERAL COUNSEL, MR. BUFE, STATED THAT,
 "TO THE EXTENT THAT OUR POLICY CAN BE DESCRIBED IN ONE SENTENCE, THIS
 (PRESIDENT'S CONNERY'S MEMORANDUM) IS GENERALLY ACCURATE" AND ASSOCIATE
 GENERAL COUNSEL DANCH FURTHER CONFIRMED MR.  BUFE'S TESTIMONY, STATING
 THAT "THE MEMBERSHIP OF THE EMPLOYEE" IS CONSIDERED IN DETERMINING
 WHETHER TO SUPPLY AN ATTORNEY TO REPRESENT THE EMPLOYEE.
 
    THIRD, DISTRIBUTION OF PRESIDENT CONNERY'S MEMORANDUM MADE CLEAR TO
 EACH CHAPTER THAT RESPONDENT'S POLICY WAS THAT IT WOULD NOT SUPPLY
 ATTORNEYS TO NON-MEMBERS TO HELP IN THE REPRESENTATIONAL EFFORTS" AND
 MADE CLEAR TO ITS LEGAL STAFF THAT RESPONDENT'S POLICY WAS THAT THEY
 SHOULD NOT REPRESENT NON-MEMBERS.  IN SHORT, PRESIDENT CONNERY'S
 MEMORANDUM TO EACH CHAPTER PRESIDENT WAS INTENDED TO CUT OFF REQUESTS
 FOR THE ASSISTANCE OF AN ATTORNEY TO REPRESENT NON-MEMBERS, THAT IS TO
 PREVENT THEM "REACHING THE PASS";  BUT IF A REQUEST FOR AN ATTORNEY TO
 REPRESENT A NON-MEMBER SHOULD SLIP THROUGH, RESPONDENT'S LEGAL STAFF WAS
 TO "CUT THEM OFF AT THE PASS", AS THEY WERE INSTRUCTED THAT RESPONDENT'S
 POLICY WAS THAT ATTORNEYS WOULD NOT REPRESENT NON-MEMBERS.  THIS WAS
 FULLY CONFIRMED BY THE TESTIMONY OF ASSOCIATE GENERAL COUNSEL DANCH WHO
 TESTIFIED, "I ASSUME THAT CASES REFERRED TO ME ARE CASES INVOLVING A
 MEMBER OF OUR UNION" BUT IF SHE LEARNED THAT A CASE INVOLVED A
 NON-MEMBER, "I DO TAKE THAT INTO CONSIDERATION."
 
    THE FOREGOING REPRESENTED UNION POLICY APPLICABLE TO ALL CHAPTERS OF
 RESPONDENT AND WAS NOT LIMITED OR RESTRICTED TO ANY PARTICULAR CHAPTER
 OR TO ANY UNIT OF EXCLUSIVE RECOGNITION, AND, NECESSARILY WAS NOT
 LIMITED OR RESTRICTED TO UNITS WITHIN THE U.S.  CUSTOMS SERVICE OR THE
 NUCLEAR REGULATORY COMMISSION.  SINCE RESPONDENT'S POLICY WAS A POLICY
 OF THE NATIONAL OFFICE AND WAS IMPLEMENTED THROUGHOUT THE UNION, A BROAD
 ORDER APPLICABLE TO ALL EXCLUSIVE UNITS REPRESENTED BY RESPONDENT WILL
 BE RECOMMENDED.
 
    FOURTH, THE POSTING OF PRESIDENT CONNERY'S MEMORANDUM ON UNION
 BULLETIN BOARDS IN CUSTOMS REGIONS VII AND IX ADVISED UNIT MEMBERS OF
 RESPONDENT'S POLICY THAT "NTEU WILL NOT SUPPLY ATTORNEYS TO NON-MEMBERS
 TO HELP IN THE REPRESENTATIONAL EFFORTS".
 
    FIFTH, THE RECORD DEMONSTRATES THAT RESPONDENT IMPLEMENTED ITS POLICY
 OF NOT SUPPLYING ATTORNEYS TO NON-MEMBERS IN REPRESENTATIONAL MATTERS AT
 THE NUCLEAR REGULATORY COMMISSION.  NOT ONLY WAS PRESIDENT CONNERY'S
 MEMORANDUM DISTRIBUTED TO THE CHAPTER PRESIDENT AT NRC, AS IT WAS TO
 EACH OF RESPONDENT'S CHAPTER PRESIDENTS, BUT THE RECORD SHOWS THAT, IN
 ACCORDANCE WITH THAT POLICY, ATTORNEYS WERE PROVIDED TO MEMBERS AT NRC
 BUT WERE NOT PROVIDED TO NON-MEMBERS.  THUS, UNION MEMBERS RONALD CLARY
 AND DAVID RIDEN WERE REPRESENTED BY NTEU ATTORNEYS ATTORNEYS IN
 CONNECTION WITH PROPOSED REMOVAL ACTIONS;  BUT WARREN WASHINGTON, A
 NON-MEMBER, WAS NOT REPRESENTED BY AN ATTORNEY IN HIS PROPOSED REMOVAL
 ACTION.  IN ADDITION, MS. CYNTHIA TAYLOR RECEIVED NO UNION ASSISTANCE IN
 HER PROPOSED REMOVAL ACTION BUT MR. THOMAS, PRESIDENT OF CHAPTER 208,
 PROFESSED IGNORANCE AS TO HER MEMBERSHIP STATUS.
 
    RESPONDENT'S ASSERTION, STATED AT LENGTH IN MR. BUFE'S TESTIMONY, IN
 EFFECT, THAT BECAUSE MEMBERSHIP IN ONLY ONE OF SEVERAL FACTORS
 CONSIDERED IN DETERMINING WHETHER TO PROVIDE THE ASSISTANCE OF AN
 ATTORNEY ITS POLICY WAS NOT VIOLATIVE OF THE STATUTE, OR AS STATED IN
 ITS BRIEF,
 
    " . . . IN PROVIDING REPRESENTATION, RESPONDENT MUST BALANCE AS MANY
 AS EIGHT (8) FACTORS
 
    IN DETERMINING WHETHER OR NOT TO SUPPLY AN ATTORNEY RATHER THAN A
 STEWARD OR OFFICER . . .
 
    " . . . MUCH TIME, MONEY AND EFFORT IS SPENT BY RESPONDENT TO ENSURE
 THAT ITS STEWARDS AND
 
    OFFICERS SUPPLY THE BEST REPRESENTATION IN THE FEDERAL SECTOR.
 RESPONDENT SUBMITS THAT IT HAS
 
    ATTAINED THAT GOAL ONLY THROUGH CONSIDERING MEMBERSHIP IN RESPONDENT
 AS A FACTOR IN DECIDING
 
    WHETHER OR NOT TO PROVIDE AN ATTORNEY FOR REPRESENTATIONAL EFFORTS ON
 A CASE BY CASE BASIS.
 
    "FOR THESE REASONS, RESPONDENT HAS VIOLATED NO SECTION OF THE STATUTE
 . . . " (RESPONDENT'S
 
    BRIEF, P. 24).  IS WITHOUT MERIT.  INCLUSION OF MEMBERSHIP AS A
 FACTOR IN DETERMINING WHETHER TO PROVIDE THE ASSISTANCE OF AN ATTORNEY
 VIOLATES SEC. 14(A)(1) OF THE STATUTE, WHICH PROVIDES, IN PART, THAT "AN
 EXCLUSIVE REPRESENTATIVE IS RESPONSIBLE FOR REPRESENTING THE INTERESTS
 OF ALL EMPLOYEES IN THE UNIT IT REPRESENTS . . . WITHOUT REGARD TO LABOR
 ORGANIZATION MEMBERSHIP".  RESPONDENT'S ASSERTION WOULD CONSTITUTE A
 "CATCH 22" SITUATION FOR NON-MEMBERS.  IF ALL OTHER FACTORS WERE
 POSITIVE, ASSISTANCE OF AN ATTORNEY WOULD STILL BE DENIED IF THE
 EMPLOYEE WERE A NON-MEMBER.  THAT THIS WAS RESPONDENT'S UNEQUIVOCAL
 PURPOSE AND INTENT WAS STATED PLAINLY AND SUCCINCTLY BY PRESIDENT
 CONNERY IN HIS MEMORANDUM OF SEPTEMBER 7, 1979, TO WIT:
 
    "NTEU WILL NOT SUPPLY ATTORNEYS TO NON-MEMBERS TO HELP IN THE
 REPRESENTATIONAL EFFORTS."
 
    RESPONDENT'S POLICY, THAT IT WOULD NOT SUPPLY ATTORNEYS TO
 NON-MEMBERS TO HELP IN THE REPRESENTATIONAL EFFORTS, IMPLEMENTED AS SET
 FORTH HEREINABOVE, VIOLATED SECS. 14(A)(1), 16(B)(1) AND (8) OF THE
 STATUTE AND EVEN IF RESPONDENT HAD ON SOME PRIOR OCCASION PROVIDED AN
 ATTORNEY TO REPRESENT A NON-MEMBER, ITS POLICY WAS NONE THE LESS
 VIOLATIVE OF THE STATUTE.  IN POINT OF FACT, THE ONLY INSTANCE RAISED BY
 RESPONDENT CONCERNED AS "ATTEMPT" TO REPRESENT TWO NON-MEMBERS WHO HAD
 PRIVATE COUNSEL IN A GRIEVANCE PROCEEDING.  UNDER THE COLLECTIVE
 BARGAINING AGREEMENT, ARBITRATION MUST BE INVOKED BY THE NATIONAL OFFICE
 OF RESPONDENT.  THIS WAS DONE BY A LETTER SIGNED BY JAMES D. THOMAS FOR
 VINCENT L. CONNERY (RES. EXH. 3).  NO ARBITRATION RESULTED;  BUT, IN ANY
 EVENT, THE LETTER SEEKING TO INVOKE ARBITRATION WAS DATED JUNE 8, 1979,
 THREE MONTHS PRIOR TO THE ISSUANCE OF PRESIDENT CONNERY'S MEMORANDUM OF
 SEPTEMBER 7, 1979.  MR. BENSON TESTIFIED THAT THE ONLY CASE THAT HAD
 GONE TO ARBITRATION AT NRC SINCE RESPONDENT BECAME THE EXCLUSIVE
 REPRESENTATIVE HAD INVOLVED AN EMPLOYEE ON DUES WITHHOLDING.
 
    RESPONDENT'S ESTABLISHED POLICY OF DISPARATE TREATMENT AMONG
 BARGAINING UNIT EMPLOYEES BASED SOLELY UPON UNION MEMBERSHIP VIOLATED
 THE OBLIGATION IMPOSED BY SEC.  14(A)(1) OF THE STATUTE AND CONSTITUTED
 AN UNFAIR LABOR PRACTICE IN VIOLATION OF SECS. 16(B)(1) AND (8) OF THE
 STATUTE AND EVEN IF RESPONDENT HAD GRANTED SPECIAL DISPENSATION IN
 SELECTED CASES AND HAD PROVIDED THE ASSISTANCE OF ATTORNEYS TO
 NON-MEMBERS, AND THE RECORD FAILS TO SHOW THAT ANY SUCH SPECIAL
 DISPENSATION HAD BEEN GRANTED AFTER THE DATE OF PRESIDENT CONNERY'S
 MEMORANDUM OF SEPTEMBER 7, 1979;  NEVERTHELESS, THE POLICY OF DISPARATE
 TREATMENT WAS VIOLATIVE OF THE SEC. 14(A)(1) AND 16(B)(1) AND (8) OF THE
 STATUTE.
 
    HAVING FOUND THAT RESPONDENT HAS ENGAGED IN, AND IS ENGAGING IN,
 CERTAIN CONDUCT IN VIOLATION OF SECS. 14(A)(1), 16(B)(1) AND (8) OF THE
 STATUTE, IT IS RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING:
 
                                   ORDER
 
    PURSUANT TO SECTION 18(A)(7) OF THE STATUTE, 5 U.S.C. 7118(A)(7), AND
 SECTION 2423.26 OF THE FINAL RULES AND REGULATIONS, 5 C.F.R. CHAPTER
 XIV, SEC. 2423.26, FED.  REG., VOL. 45, NO. 12, JANUARY 17, 1980, THE
 AUTHORITY HEREBY ORDERS THAT NATIONAL TREASURY EMPLOYEES UNION SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    A) AFFORDING DIFFERING STANDARDS OF EMPLOYEE REPRESENTATION TO
 EMPLOYEES IN UNITS OF
 
    EXCLUSIVE RECOGNITION SOLELY ON THE BASIS OF WHETHER OR NOT SUCH
 EMPLOYEES ARE MEMBERS OF THE
 
    NATIONAL TREASURY EMPLOYEES UNION.
 
    B) IN ANY LIKE OR RELATED MANNER REFUSING TO REPRESENT THE INTERESTS
 OF ALL EMPLOYEES IN
 
    THE UNITS IT REPRESENTS WITHOUT DISCRIMINATION AND WITHOUT REGARD TO
 LABOR ORGANIZATION
 
    MEMBERSHIP OR INTERFERING WITH, RESTRAINING, OR COERCING ANY EMPLOYEE
 IN THE EXERCISE BY THE
 
    EMPLOYEE OF ANY RIGHT UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION:
 
    A) NATIONAL TREASURY EMPLOYEES UNION, BY ITS PRESIDENT, SHALL NOTIFY
 ALL NATIONAL OFFICE
 
    OFFICIALS, INCLUDING ITS LEGAL STAFF, AND EACH CHAPTER PRESIDENT, IN
 WRITING, THAT THE NATION
 
    TREASURY EMPLOYEES UNION'S POLICY HAS CHANGED;  THAT THE NATIONAL
 TREASURY EMPLOYEES UNION WILL
 
    SUPPLY ATTORNEYS TO NON-MEMBERS TO HELP IN THE REPRESENTATIONAL
 EFFORTS ON THE SAME BASIS AS
 
    IT SUPPLIES ATTORNEYS TO MEMBERS TO HELP IN THE REPRESENTATIONAL
 EFFORTS;  AND THAT THE
 
    STATEMENT IN PRESIDENT CONNERY'S MEMORANDUM, DATED SEPTEMBER 7, 1979,
 TO THE CONTRARY IS
 
    HEREBY WITHDRAWN AND RESCINDED.
 
    B) NATIONAL TREASURY EMPLOYEES UNION WILL REPRESENT THE INTERESTS OF
 ALL EMPLOYEES IN ALL
 
    UNITS IT REPRESENTS WITHOUT DISCRIMINATION AND WITHOUT REGARD TO
 LABOR ORGANIZATION
 
    MEMBERSHIP.
 
    C) POST AT ITS NATIONAL HEADQUARTERS, AT THE LOCAL BUSINESS OFFICE OF
 EACH OF ITS CHAPTERS,
 
    AND AT EACH AGENCY OR ACTIVITY, INCLUDING BUT NOT LIMITED TO U.S.
 CUSTOMS SERVICE AND
 
    U.S. NUCLEAR REGULATORY COMMISSION, FOR WHICH THE NATIONAL TREASURY
 EMPLOYEES UNION, AND/OR
 
    ANY CHAPTER OF THE NATIONAL TREASURY EMPLOYEES UNION HOLDS EXCLUSIVE
 RECOGNITION, AND AT ALL
 
    PLACES WHERE NOTICES TO MEMBERS AND OTHER EMPLOYEES ARE CUSTOMARILY
 POSTED, INCLUDING
 
    FACILITIES PROVIDED BY THE RESPECTIVE AGENCIES OR ACTIVITIES, COPIES
 OF THE ATTACHED NOTICE
 
    MARKED "APPENDIX", ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR
 RELATIONS AUTHORITY.  UPON
 
    RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE PRESIDENT OF THE
 NATIONAL TREASURY
 
    EMPLOYEES UNION AND THEY SHALL BE POSTED AND MAINTAINED FOR 60
 CONSECUTIVE DAYS THEREAFTER IN
 
    CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO MEMBERS AND
 TO OTHER EMPLOYEES ARE
 
    CUSTOMARILY POSTED.  THE PRESIDENT OF NATIONAL TREASURY EMPLOYEES
 UNION SHALL TAKE REASONABLE
 
    STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR
 COVERED BY ANY OTHER MATERIAL.
 
    D) SUBMIT APPROPRIATE SIGNED COPIES OF SUCH NOTICE TO THE
 COMMISSIONER OF THE U.S. CUSTOMS
 
    SERVICE, WASHINGTON, D.C.; THE CHAIRMAN OF THE U.S. NUCLEAR
 REGULATORY COMMISSION, WASHINGTON,
 
    D.C.; AND, UPON REQUEST, TO AN APPROPRIATE OFFICER OF EACH OTHER
 AGENCY OR ACTIVITY FOR WHICH
 
    THE NATIONAL TREASURY EMPLOYEES UNION AND/OR ANY CHAPTER OF THE
 NATIONAL TREASURY EMPLOYEES
 
    UNION HOLDS EXCLUSIVE RECOGNITION, FOR POSTING IN CONSPICUOUS PLACES
 WHERE UNIT EMPLOYEES ARE
 
    LOCATED, WHERE THEY SHALL BE MAINTAINED FOR A PERIOD OF 60
 CONSECUTIVE DAYS FROM THE DATE OF
 
    THE POSTING.
 
    E) NOTIFY THE 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.
 
                         WILLIAM B. DEVANEY
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  FEBRUARY 25, 1981
            WASHINGTON, D.C.
 
 
                                 APPENDIX
 
        NOTICE TO ALL MEMBERS AND EMPLOYEES PURSUANT TO A DECISION
 
          AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND
 
            IN ORDER TO EFFECTUATE THE POLICIES OF THE FEDERAL
 
                    LABOR-MANAGEMENT RELATIONS STATUTE
 
         WE HEREBY NOTIFY ALL MEMBERS AND EMPLOYEES, OF ALL UNITS
 
          FOR WHICH THE NATIONAL TREASURY EMPLOYEES UNION, AND/OR
 
          ANY CHAPTER OF NATIONAL TREASURY EMPLOYEES UNION, HOLDS
 
                       EXCLUSIVE RECOGNITION, THAT:
 
    WE WILL NOT AFFORD DIFFERING STANDARDS OF EMPLOYEE REPRESENTATION
 SOLELY ON THE BASIS OF WHETHER OR NOT EMPLOYEES ARE MEMBERS OF THE
 NATIONAL TREASURY EMPLOYEES UNION.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER REFUSE TO REPRESENT THE
 INTERESTS OF ALL EMPLOYEES IN ANY UNIT OF EXCLUSIVE RECOGNITION WITHOUT
 DISCRIMINATION AND WITHOUT REGARD TO LABOR ORGANIZATION MEMBERSHIP OR
 INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE EXERCISE BY THE
 EMPLOYEE OF ANY RIGHT UNDER THE FEDERAL SERVICES LABOR-MANAGEMENT
 RELATIONS STATUTE.
 
    WE HEREBY NOTIFY ALL MEMBERS AND ALL EMPLOYEES IN ALL UNITS OF
 EXCLUSIVE RECOGNITION THAT THE NATIONAL TREASURY EMPLOYEES UNION'S
 POLICY HAS CHANGED;  THAT THE NATIONAL TREASURY EMPLOYEES UNION WILL
 SUPPLY ATTORNEYS TO NON-MEMBERS TO HELP IN THE REPRESENTATIONAL EFFORTS
 ON THE SAME BASIS AS IT SUPPLIES ATTORNEYS TO MEMBERS TO HELP IN THE
 REPRESENTATIONAL EFFORTS;  AND THAT THE STATEMENT IN PRESIDENT CONNERY'S
 MEMORANDUM, DATED SEPTEMBER 7, 1979, TO THE CONTRARY IS HEREBY WITHDRAWN
 AND RESCINDED.
 
    WE WILL REPRESENT THE INTERESTS OF ALL EMPLOYEES IN ALL UNITS WE
 REPRESENT WITHOUT DISCRIMINATION AND WITHOUT REGARD TO LABOR
 ORGANIZATION MEMBERSHIP.
 
                     NATIONAL TREASURY EMPLOYEES UNION
 
    DATED:  BY:  PRESIDENT
 
    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 MEMBERS OR EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR
 COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
 WITH THE REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY,
 REGION 3, WHOSE ADDRESS IS:  ROOM 300, 1133-- 15TH STREET, N.W.,
 WASHINGTON, D.C.  20005 (TELEPHONE NO. FTS:  8-653-8452;  COMMERCIAL:
 (202) 653-8452).
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ ADDITIONALLY, THE RESPONDENT FILED A MOTION FOR ORAL ARGUMENT.
 THE GENERAL COUNSEL AND THE U.S. CUSTOMS SERVICE RESPONDED THAT ORAL
 ARGUMENT WAS UNNECESSARY AND WOULD SERVE NO USEFUL PURPOSE.  THE
 AUTHORITY CONCLUDES THAT THE RECORD IN THIS CASE PROVIDES A FULL AND
 SUFFICIENT BASIS UPON WHICH TO REACH A DECISION REGARDING THE ISSUES
 PRESENTED.  ACCORDINGLY, THE RESPONDENT'S MOTION IS DENIED.
 
    /2/ SECTION 7114(A)(1) PROVIDES:
 
    SEC. 7114.  REPRESENTATION RIGHTS AND DUTIES
 
    (A)(1) A LABOR ORGANIZATION WHICH HAS BEEN ACCORDED EXCLUSIVE
 RECOGNITION IS THE EXCLUSIVE
 
    REPRESENTATIVE OF THE EMPLOYEES IN THE UNIT IT REPRESENTS AND IS
 ENTITLED TO ACT FOR, AND
 
    NEGOTIATE COLLECTIVE BARGAINING AGREEMENTS COVERING, ALL EMPLOYEES IN
 THE UNIT.  AN EXCLUSIVE
 
    REPRESENTATIVE IS RESPONSIBLE FOR REPRESENTING THE INTERESTS OF ALL
 EMPLOYEES IN THE UNIT IT
 
    REPRESENTS WITHOUT DISCRIMINATION AND WITHOUT REGARD TO LABOR
 ORGANIZATION MEMBERSHIP.
 
    /3/ SECTION 7116(B) PROVIDES IN PERTINENT PART:
 
    SEC. 7116.  UNFAIR LABOR PRACTICES
 
   *          *          *          *
 
 
    (B) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
 PRACTICE FOR A LABOR
 
    ORGANIZATION--
 
    (1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
 EXERCISE BY THE EMPLOYEE OF
 
    ANY RIGHT UNDER THIS CHAPTER;
 
   *          *          *          *
 
 
    (8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
 CHAPTER.
 
    /4/ SEE ALSO NATIONAL TREASURY EMPLOYEES UNION (NTEU), CHAPTER 202,
 ET AL., 1 FLRA 909 (1979), CITED BY THE JUDGE, WHEREIN THE AUTHORITY
 FOUND THAT NTEU VIOLATED ITS DUTY OF FAIR REPRESENTATION UNDER EXECUTIVE
 ORDER 11491, AS AMENDED, BY VIRTUE OF ITS DISPARATE POLICY OF SUPPLYING
 NATIONAL OFFICE ATTORNEYS TO REPRESENT UNION MEMBERS WHILE SUPPLYING
 LOCAL STEWARDS TO REPRESENT NON-MEMBERS.  THE AUTHORITY FOLLOWED THE
 NTEU DECISION IN FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION
 DIVISION, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, 2 FLRA
 801(1980).
 
    /5/ SECTION 7102 PROVIDES, IN PERTINENT PART, AS FOLLOWS:
 
    SEC. 7102.  EMPLOYEES' RIGHTS
 
    EACH EMPLOYEE SHALL HAVE THE RIGHT TO FORM, JOIN, OR ASSIST ANY LABOR
 ORGANIZATION, OR TO
 
    REFRAIN FROM ANY SUCH ACTIVITY, FREELY AND WITHOUT FEAR OF PENALTY OR
 REPRISAL, AND EACH
 
    EMPLOYEE SHALL BE PROTECTED IN THE EXERCISE OF SUCH RIGHT.  . .  .
 
    /6/ IN ADOPTING THE JUDGE'S CONCLUSION THAT NTEU'S CONDUCT VIOLATED
 SECTION 7116(B)(1) AND (8), HOWEVER, THE AUTHORITY DOES NOT REACH OR
 PASS UPON THE JUDGE'S ADDITIONAL COMMENT THAT "A VIOLATION OF SEC.
 (71)16(B)(8) WOULD, IN ANY EVENT, CONSTITUTE A DERIVATIVE VIOLATION OF
 SEC. (71)16(B)(1) OF THE STATUTE." THUS, WHILE NTEU'S FAILURE OR REFUSAL
 TO COMPLY WITH SECTION 7114(A)(1) OF THE STATUTE INTERFERED WITH,
 RESTRAINED, AND COERCED EMPLOYEES IN THE EXERCISE OF THEIR PROTECTED
 RIGHTS UNDER THE STATUTE, IT IS UNNECESSARY TO DECIDE WHETHER ANY
 FAILURE TO COMPLY WITH A PROVISION OF THE STATUTE SIMILARLY WOULD
 VIOLATE EMPLOYEES' PROTECTED RIGHTS.
 
    /7/ HEREIN, FOR CONVENIENCE OF REFERENCE, SECTIONS OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE
 UNITED STATES CODE, 5 U.S.C. 7101, ET SEQ., ARE REFERRED TO WITHOUT
 INCLUSION OF THE INITIAL "71" PORTION OF THE STATUTE REFERENCE.  THUS,
 BY WAY OF EXAMPLE, SECTION 7114(A)(1) SIMPLY AS "14(A)(1)";  HOWEVER,
 UNLESS OTHERWISE SPECIFICALLY INDICATED, ALL SUCH REFERENCES ARE TO
 CHAPTER 71 OR THE STATUTE.
 
    /8/ RESPONDENT'S MOTION TO POSTPONE THE HEARING, FILED JULY 31, 1980
 (G.C. EXH. 1(M)), OPPOSED BY GENERAL COUNSEL (G.C. EXH. 1(N), WAS DENIED
 BY ORDER DATED AUGUST 5, 1980 (G.C. EXH. 1(P)).  RESPONDENT'S MOTION FOR
 MORE DEFINITE STATEMENT WAS FILED AUGUST 6, 1980, (G.C. EXH. 1(Q)) WAS
 REFERRED TO THE CHIEF ADMINISTRATIVE LAW JUDGE BY ORDER DATED AUGUST 8,
 1980 (G.C. EXH. 1(R)), WAS OPPOSED BY GENERAL COUNSEL (G.C. EXH. 1(T)),
 AND WAS DENIED BY ORDER DATED AUGUST 8, 1980 (G.C. EXH. 1(V)).
 
    RESPONDENT RENEWED ITS MOTION FOR MORE DEFINITE STATEMENT AT THE
 HEARING, BUT NARROWED THE SCOPE OF ITS MOTION TO PARAGRAPH 8 OF THE
 COMPLAINT IN 3-CO-26, AND THE UNDERSIGNED GRANTED RESPONDENT'S MODIFIED
 MOTION AND COUNSEL FOR GENERAL COUNSEL, ACCORDINGLY, ADVISED RESPONDENT
 OF THE LOCATIONS AT WHICH PRESIDENT CONNERY'S MEMORANDUM HAD BEEN POSTED
 (TR. 10).
 
    /9/ ON SEPTEMBER 2, 1980, RESPONDENT FILED A MOTION FOR ADMISSION OF
 ASSERTEDLY NEW AND HERETOFORE UNAVAILABLE EVIDENCE;  GENERAL COUNSEL
 FILED AN OPPOSITION ON SEPTEMBER 4, 1980;  AND THE MOTION WAS DENIED ON
 SEPTEMBER 11, 1980, AS PART OF THE ORDER GRANTING EXTENSION OF TIME TO
 FILE BRIEFS AND DENYING MOTION FOR ADMISSION OF NEW AND HERETOFORE
 UNAVAILABILITY EVIDENCE WHICH IS HEREBY INCORPORATED BY REFERENCE.  THE
 REASONS FOR DENYING THE MOTION FOR ADMISSION OF EVIDENCE WERE FULLY SET
 FORTH IN THE ORDER OF SEPTEMBER 11, 1980;  ARE HEREBY REAFFIRMED;  AND
 NEED NOT BE REPEATED IN DETAIL.  SUFFICE IT TO SAY THAT, AS NOTED IN THE
 ORDER OF SEPTEMBER 11, 1980, " . . . THE EVIDENCE PROFFERED BY
 RESPONDENT FULLY CONFIRMS THE EVIDENCE PREVIOUSLY PRESENTED BY THE
 GENERAL COUNSEL, NAMELY, THAT THE MEMORANDUM WAS, INDEED, POSTED BY
 RESPONDENT AT INTERNATIONAL FALLS AND AT LOS ANGELES, CAN NOT PROPERLY,
 BE CHARACTERIZED AS "NEW" EVIDENCE BUT IS SIMPLY CUMULATIVE . . .
 NEVERTHELESS, TH