12:0480(94)CA - NASA, HQ, Washington, DC and Local 9, American Federation of Technical Engineers -- 1983 FLRAdec CA



[ v12 p480 ]
12:0480(94)CA
The decision of the Authority follows:


 12 FLRA No. 94
 
 NATIONAL AERONAUTICS AND SPACE
 ADMINISTRATION, HEADQUARTERS,
 WASHINGTON, D.C.
 Respondent
 
 and
 
 LOCAL 9, AMERICAN FEDERATION OF
 TECHNICAL ENGINEERS, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-2624
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had violated
 section 7116(a)(1) and (6) of the Federal Service Labor-Management
 Relations Statute (the Statute) 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.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority has reviewed the rulings
 of the Judge and finds that no prejudicial error was committed.  The
 rulings are hereby affirmed.  Upon consideration of the Judge's Decision
 and the entire record, the Authority hereby adopts the Judge's findings,
 conclusions and recommendations.
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and Section 7118 of the Federal
 Service Labor Management Relations Statute, it is hereby ordered that
 the National Aeronautics and Space Administration, Headquarters,
 Washington, D.C. shall:
 
    1.  Cease and desist from:
 
    (a) Failing or refusing to comply with the Decision and Order of the
 Federal Service Impasse Panel in Case No. 81 FSIP 23.
 
    (b) In any like or related manner, interfering with, restraining, or
 coercing employees in the exercise of their rights, assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purpose and policies of the Statute:
 
    (a) Comply with the Decision and Order of the Federal Service
 Impasses Panel in Case No. 81 FSIP 23, and otherwise cooperate in
 impasse procedures and decisions as required by the Federal Service
 Labor-Management Relations Statute.
 
    (b) Post at its facilities wherever bargaining unit employees are
 located, copies of the attached Notice on forms to be furnished by the
 Authority.  Upon receipt of such forms, they shall be signed by the
 Administrator, National Aeronautics and Space Administration, or his
 designee, and shall be posted and maintained for 60 consecutive days in
 conspicuous places, including all bulletin boards and other places where
 notices to employees are customarily posted.  Reasonable steps shall be
 taken to insure that such Notices are not altered, defaced, or covered
 by any other material.
 
    (c) Pursuant to Section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, 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., August 10, 1983
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
                          NOTICE TO ALL 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 EMPLOYEES THAT:
 
 WE WILL NOT fail or refuse to comply with the Decision and Order of the
 Federal Service Impasses Panel in Case No. 81 FSIP 23.  WE WILL NOT in
 any like or related manner, interfere with, restrain, or coerce
 employees in the exercise of their rights assured by the Statute.  WE
 WILL comply with the Decision and Order of the Federal Service Impasses
 Panel in Case No. 81 FSIP 23, and otherwise cooperate in impasse
 procedures and decisions as required by the Federal Service
 Labor-Management Relations Statute.
                                       (Activity)
 
 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, Region III,
 Federal Labor Relations Authority, whose address is:  1111 18th Street,
 NW., Suite 700, P.O. Box 33758, Washington, D.C.  20033-0758 and whose
 telephone number is (202) 653-8507.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No. 3-CA-2624
 
    Richard L. Dunn, Esquire
          For the Respondent
 
    Susan Shinkman, Esquire
    Carolyn Dixon, Esquire
          For the General Counsel
 
    Steve A. Schwartz
          For the Charging Party
 
    Before:  LOUIS SCALZO
           Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This case arose as an unfair labor practice proceeding under the
 provisions of the Federal Service Labor-Management Relations Statute, 92
 Stat. 1191, 5 U.S.C. 7101 et seq. (hereinafter called "the Statute"),
 and the Rules and Regulations issued thereunder.
 
    The complaint, as amended at the hearing, alleges that the Respondent
 /1/ failed and refused to comply with the provisions of Section
 7119(c)(5)(C) of the Statute by refusing to comply with an April 30,
 1981, Federal Service Impasses Panel (Panel) Order requiring the
 Respondent and the Charging Party (AFTE or Union) to incorporate into a
 collective bargaining agreement a previously adopted contract provision
 relating to the establishment of a grievance procedure.  The complaint
 also alleged that this conduct was violative of Sections 7116(a)(1),
 (5), (6), and (8) of the Statute.
 
    Counsel for the Respondent contends that the complaint should be
 dismissed on the ground that the Panel lacked jurisdiction to issue the
 Order.  Counsel also places reliance upon other alleged procedural
 irregularities which will be discussed herein to the extent deemed
 relevant and necessary.
 
    The Respondent and the General Counsel were represented by counsel
 during the hearing, and all parties were afforded full opportunity to be
 heard, adduce relevant evidence, and examine and cross-examine
 witnesses.  Post-hearing briefs were filed by counsel representing the
 General Counsel and counsel representing the Respondent.  Based upon the
 entire record herein, including my observations of the witnesses and
 their demeanor, the exhibits and other relevant evidence adduced at the
 hearing, /2/ and the briefs filed, I make the following findings of
 fact, conclusions and recommendations.
 
    Collective Bargaining History
 
    The grievance procedure which the Panel ordered the parties to adopt
 was the subject of collective bargaining based upon a January 10, 1979
 Prenegotiation Agreement entered into by the Respondent and the National
 Aeronautics and Space Administration Headquarters Professional
 Association, Local 9 International Federation of Professional and
 Technical Engineers, AFL-CIO (NHPA) (R. Exh. 2).  /3/
 
    Section 11 of the Prenegotiation Agreement reflected the following
 understanding:
 
          Section 11 Tentative Agreement.  When agreement is reached on
       the content of any article or section, it shall be typed by the
       Employer and initialed by both negotiators indicating tentative
       agreement thereto . . .  Negotiation of that particular article or
       section shall then be considered complete, subject to reopening
       only as it applies to other articles or sections or otherwise by
       mutual consent . . . .
 
    Substantive negotiations commenced on February 6, 1979.  On July 10,
 1979, Mr. James Elliott, then Chief Negotiator for the Respondent, and
 Mr. William Lucas, the Union's Chief Negotiator, reached agreement on a
 grievance procedure (R. Exh. 3).  The procedure was designated as
 "Article 12 Grievance Procedure." It was typed and initialed as a
 "tentative agreement" in accordance with Section 11 of the
 Prenegotiation Agreement. Mr. Elliott was replaced by Mr. Jack Remissong
 as the Respondent's Chief Negotiator shortly thereafter (Tr. 111-112).
 /4/
 
    After Mr. Remissong assumed his new duties, the Respondent again
 raised issues concerning the initialed grievance procedure because the
 Respondent was dissatisfied with it.  This occurred sometime in
 September or October of 1979 (Tr. 112).  The Respondent admitted that
 changes were sought in the grievance procedure because "management
 negotiators realized they had made a mistake and attempted to correct it
 via various methods of trying to reopen negotiations." (Tr. 150).  The
 Union refused to reopen or otherwise accede to these requests, and the
 parties sought the services of the Federal Mediation and Conciliation
 Service (FMCS).  Efforts to reach agreement on the issue were not
 successful (Tr. 150).
 
    Initial Request for Panel Assistance
 
    On April 22, 1980, the Union requested assistance from the Panel in
 resolving a series of impasse issues including the disagreement
 concerning the initialed grievance procedure (ALJ Ex. 1).  The case was
 designated as Case No. 80 FSIP 24.  On June 19, 1980, following a Panel
 investigation, the Panel instructed the parties to resume negotiations
 with mediation if necessary, as the Panel had determined that voluntary
 efforts to reach settlement had not been exhausted (ALJ Exh. 2).
 
    In the meantime, during March of 1980, Mr. Walter Pierce became the
 Respondent's Labor Relations Officer (Tr. 87).  He was formally
 designated to serve as Respondent's Alternate Chief Negotiator,
 replacing Mr. Remissong on July 11, 1980 (Tr. 143).  Following the
 Panel's remand of the case, the parties continued to discuss the
 grievance procedure issue and other impasse issues.  Discussions focused
 on agency objections to the initialed grievance procedure and the
 reopening question (Tr. 119-120, 127-130, 131-132).  A new version of
 the grievance procedure proposed by the Respondent was rejected (Tr.
 120-121).  The FMCS was again utilized, but without results.  At one
 point in these negotiations the Union did agree to reopen grievance
 procedure negotiations on certain limited points deemed critical, but
 the Respondent refused (Tr. 120-121).  On September 19, 1980, mediation
 efforts were terminated (Tr. 132, 154-155).  Mr. Pierce testified as
 follows concerning negotiations following the Panel's remand:
 
          The issue of the grievance procedure had been discussed at all
       times that I was in mediation trying to buy my way in reopening
       it, trying to cajole the Union into trading one-on-one
       article-for-article, what have you (Tr. 156).
 
    On October 14, 1980, Mr. Pierce wrote to Mr. Lucas and outlined the
 Respondent's final position in detail (R. Exh. 4).  He stated that the
 initialed grievance procedure stemmed from management proposals
 submitted by an inexperienced management negotiating team.  Mr. Pierce
 outlined perceived deficiencies in the initialed grievance procedure,
 described the pattern of unsuccessful efforts to resolve the issue, and
 noted that the parties had both confirmed the fact that they had reached
 an impasse over the matter.  /5/ Negotiations following the June 19,
 1980 Panel remand were summarized, /6/ and it was proposed that the
 grievance procedure again be considered separate from all other issues.
 He argued that the Prenegotiation Agreement posed no impediment to
 reconsideration, and that the initialed procedure failed to conform to
 Section 7121(b)(1) and (2) of the Statute because the initialed
 procedure was not fair and simple and did not provide for expeditious
 processing of grievances.  A new grievance procedure was attached as a
 proposed subject for negotiations.  Mr. Pierce concluded with the
 following warning:
 
          Therefore, if the union does not accept or negotiate on the
       attached management proposal regarding the New Procedure, then
       management and the union will be without a grievance procedure
       required by 5 U.S.C. 7121 for a collective bargaining agreement.
 
    By letter dated November 11, 1980, Mr. Lucas rejected the
 Respondent's October 14, 1980 proposal to negotiate the proposed
 grievance procedure forwarded with the October 14th letter (R. Exh. 5).
 The Union indicated an intent to go to the Panel on issues not resolved,
 and insisted that the initialed grievance procedure reflected that this
 phase of the negotiations had been concluded.  The Respondent's version
 of prior negotiations on the issue were rejected as inaccurate in large
 measure.  In particular, the Union repudiated the Respondent's
 interpretation of the Prenegotiation Agreement as permitting Respondent
 to reopen negotiations on the grievance procedure issue.  Mr. Lucas
 indicated that he would not request Panel assistance on this issue
 because the Respondent had initialed the grievance procedure article.
 
    Second Request for Panel Assistance Initiated
 
    On December 1, 1980, the Union filed a second request for Panel
 assistance (R. Exh. 1).  The Union identified the articles which the
 parties had not yet resolved and initialed.  /7/ The Union explained
 that the grievance procedure matter was not listed because the Union was
 of the opinion that the grievance procedure article had been adopted by
 the parties.  The request included the following language:
 
          The Union considers that as a result of extensive discussions
       and an exchange of letters between the parties that the Grievance
       Procedure matter has been concluded and it has not been included
       in this request.
 
          Because of the long period of time which has been consumed in
       negotiations, and the lack of adequate protection of our members
       of the bargaining unit due to absence of a contract, the Union
       strongly urges the Panel to expedite the implementation of this
       contract.
 
          In order to accomplish this desirable objective the Union
       proposes that the Agency be directed to forward to the
       Administrator all Articles on which tentative agreement has been
       reached.  The remaining articles would be examined by a
       factfinder.  The Union agrees to accept the recommendations of the
       factfinder in the interest of timely implementation of this long
       overdue Agreement.
 
    The Request then outlined the dates on which negotiation and
 mediation sessions were held, including dates on which the grievance
 procedure issue was a topic of concern (R. Exh. 1, and R. Exh. 4).
 Following receipt of this request, Mr. Jonathan Kaufman, a Panel
 investigator, wrote to the parties and advised that the case was being
 docketed as Case No. 81 FSIP 23, and that Mr. Kaufman would be serving
 as the Panel's investigator (Tr. 163-164).
 
    Mr. Kaufman spoke to Mr. Pierce about prior negotiations and inquired
 concerning management's position (Tr. 164).  Mr. Pierce met with Mr.
 Kaufman as requested and supplied to him a collection of documents
 relating to prior negotiations.  A four page summary of Mr. Pierce's
 submission dated December 17, 1980, and entitled "Documents Regarding
 Case No. 81 FSIP 23," is included in the record as G.C. Exh. 8.  With
 respect to the grievance procedure issue Mr. Pierce noted that, "the
 Employer asserts that the matters and issues involved with this Article
 are still obviously unresolved." Mr. Pierce's submission to Mr. Kaufman
 included a copy of Mr. Pierce's October 14, 1980 letter to Mr. Lucas (R.
 Exh. 4), with a statement that the Respondent's position concerning the
 grievance procedure was set forth in the letter.  He also enclosed a
 copy of Mr. Lucas' November 11, 1980 reply to the October 14th letter, a
 copy of the initialed grievance procedure (R. Exh. 3), the first request
 for Panel assistance (ALJ Exh. 1), and a copy of the Panel's refusal to
 exercise jurisdiction over the first request (ALJ Exh. 2).  /8/
 
    Mr. Pierce acknowledged that he included all of the foregoing
 "documents relating to the grievance procedure simply because Mr. Lucas
 had specifically indicated in his (second) request for assistance that
 it (the grievance procedure issue) was not being included on the basis
 that the Union considered the matter to have been concluded" (Tr. 164).
 Mr. Pierce's submission made it clear that Respondent's proposed
 grievance procedure should be adopted;  and that the Prenegotiation
 Agreement did not preclude consideration of Respondent's new proposals
 on the matter (Tr. 198-199).  He admitted that his October 14, 1980
 letter stated the position that he wanted the Panel to consider (Tr.
 199, 206-207).  At another point he stated that the grievance procedure
 had not been resolved, and that this is what he was telling the Panel
 (Tr. 200).  /9/
 
    The Union replied to the Respondent's December 17, 1980 submission of
 materials by letter dated January 2, 1981 addressed to Mr. Kaufman by
 Mr. Lucas (R. Exh. 6, Tr. 168).  Mr. Lucas recognized that the grievance
 procedure issue was not actually resolved, and that there was a question
 of whether it was properly classified as an impasse issue.  Mr. Lucas
 then responded to points raised in Mr. Pierce's October 14, 1980 letter
 to Mr. Lucas insofar as it purported to set forth Respondent's position
 on the grievance procedure question.  He noted that the key element was
 whether or not the Respondent had a right to reopen negotiations under
 the terms of the Prenegotiation Agreement, and argued against
 Respondent's attempt to reopen.
 
    Mr. Lucas then acknowledged that it would be appropriate for the
 Panel to resolve the grievance procedure issue, and that the effect to
 be given the Prenegotiation Agreement was the crux of the matter.  He
 stated:
 
          Based on the above information the Union believes that the
       matters raised by the Employer related to the Grievance Procedure
       should not be considered as impasse issues.  The only significant
       issue concerns the interpretation of the Prenegotiation Agreement.
        The history of this issue reveals that it is a desperate measure
       on the part of the Employer to force the Union into additional
       negotiations which would prolong the already lengthy process.
 
          If the Panel decided to assert jurisdiction in this matter, the
       Union desires that a complete record be established of the only
       significant issue in dispute viz.  The requirement for mutual
       consent to reopen Articles on which tentative agreement has been
       reached.  The Union believes that this can best be accomplished
       through the procedures of a factfinding hearing during which the
       Employer position including the various assertions made by Mr.
       Pierce can be examined in detail (R. Exh. 6).  /10/
 
    By letter dated January 13, 1981, the Acting Executive Director of
 the Panel wrote to Mr. Lucas and Mr. Pierce and advised that the matter
 would be resolved in accordance with the provisions of Section
 2471.6(a)(2) of the Panel's Regulations (5 C.F.R. 2471.6(a)(2)).  He
 requested each to submit "its written package of proposals on the issues
 at impasse concerning the grievance procedure, adverse actions, and
 actions due to unacceptable performance";  and "a written statement of
 position with supporting evidence and argument on the issues." (G.C.
 Exh. 7).  /11/ The letter also provided for the filing of rebuttal
 briefs, and noted that "(a)fter considering the entire record in this
 case, the Panel shall take whatever action it deems appropriate to
 resolve the impasse."
 
    The Union's "Position on Issues at Impasse" was filed with the Panel
 on January 27, 1981 (R. Exh. 8).  After noting that the Respondent's
 December 17, 1980 submission had reflected a desire to expand the list
 of impasse articles to include the initialed grievance procedure, the
 Union outlined the history of negotiations relating to the grievance
 procedure.  In essence, the Union urged the Panel to adopt the initialed
 grievance procedure.  /12/
 
    On January 28, 1981, Mr. Pierce transmitted a statement of position
 to the Panel on behalf of the Respondent (R. Exh. 7).  Mr. Pierce's
 position was a reiteration of the one taken in his December 17, 1980
 submission wherein he delved into the merits of the grievance procedure
 issue, and indicated that it had not been resolved by the initialing
 process.  He wrote:
 
          The employer hereby incorporates the information contained
       throughout that December 17, 1980 brief in order to avoid being
       repetitious, and relies upon it as the basis of the Employer's
       submission in response to the Panel's direction (R. Exh. 7).
 
    Specific reference was made to the new proposed grievance procedure
 article offered by the Respondent with Respondent's earlier October 14,
 1980 letter to Mr. Lucas.  This was offered as an alternative to the
 initialed grievance procedure.  The effect of the Respondent's January
 28, 1981 statement of position was characterized by counsel for the
 Respondent as follows:
 
          The Respondent's January 28, 1981 response . . . to the Panel
       incorporated by reference the material concerning the grievance
       procedure which had been provided previously to Panel Investigator
       Kaufman primary of which (sic) was Respondent's October 14, 1980
       letter (Respondent's Brief at 7).
 
    In a rebuttal brief filed on February 6, 1981 by the Union, Mr. Lucas
 again urges the Panel to accept the initialed grievance procedure
 because of alleged bad faith efforts on the part of the Respondent to
 modify the initialed grievance procedure (R. Exh. 10).  In this brief
 the Union requests the assistance of the Panel in resolving this and
 other issues.  With respect to the grievance procedure issue Mr. Lucas
 states:
 
          The Union's position with respect to this Article is that the
       July 10, 1979 Article which has received tentative agreement by
       the parties is the approved agreement and should be adopted as it
       stands . . . (R. Exh. 10 at 17).
 
    The Union's rebuttal brief then goes into a discussion of reasons why
 the initialed procedure should be approved (R. Exh. 10 at 17-18 and 22).
 
    Mr. Pierce's rebuttal brief was submitted to the Panel on February 9,
 1981 (R. Exh. 9).  After initially acknowledging that Case No. 81 FSIP
 23 involved the grievance procedure impasse issue, Mr. Pierce then
 endeavored to deny that the Respondent had raised the grievance
 procedure matter as an issue for resolution in the case.  However, he
 indicated that the union has not waivered from insistence upon the
 initialed grievance procedure, and that the Respondent has been
 unequivocally set against it, and in favor of the grievance procedure
 submitted with Respondent's October 14, 1980 letter to Mr. Lucas.
 Again, the Respondent urged a rationale for adoption of the alternative
 grievance procedure proposed by the Respondent on October 14, 1980, as
 distinct from the initialed grievance procedure.
 
    Issuance of April 30, 1981 Panel Decision and Order
 
    The Panel's April 30, 1981 Decision and Order required the parties to
 adopt the July 10, 1979 initialed grievance procedure with inclusion of
 a provision allowing either party to reopen this article after one year
 for the purpose of negotiating changes in it (G.C. Exh. 5).  /13/
 
    The Panel noted that the parties had become "deadlocked during
 negotiations over issues concerning the grievance procedure, adverse
 actions, actions due to unacceptable performance and classification
 survey procedures," and that after declining jurisdiction on the latter
 issue, "the Panel determined that the remaining issues should be
 resolved pursuant to written submissions followed by whatever action the
 Panel deemed appropriate."
 
    The Panel phrased the grievance procedure issue in the following
 terms:
 
          The parties are in dispute over (1) whether they are bound by
       the grievance procedure language which was initialed early in the
       negotiations and (2), if not, which procedure offered by the
       parties is more appropriate.
 
    The Panel traced the bargaining history of the parties, noting that
 it played "a prominent role in this issue," and analyzed the provisions
 of the initialed grievance procedure.  The Respondent's rejection of the
 initialed procedure was considered, as was the Panel's initial
 consideration of the issue and the Panel's direction to resume
 negotiations.  Subsequent negotiations by the parties in response to the
 initial Panel decision were noted as was the ultimate inability of the
 parties to reach agreement on the grievance procedure question.
 Specific proposals offered to the Panel by the parties were described
 and evaluated by the Panel.  The positions of the parties were
 considered in detail, particularly the position of the Respondent with
 regard to the merits of the initialed grievance procedure, vis a vis
 those of the grievance procedure proposed by the Respondent.
 
    The Panel noted that the initialing of the grievance procedure on
 July 10, 1979 was accomplished in accordance with the Prenegotiation
 Agreement, and further that the record before the Panel indicated that
 the Respondent made no new proposal on the subject until January of
 1980.  The Panel noted that the Union position on the subject had not
 varied since initialing of the grievance procedure.  In concluding that
 the parties should adopt the language of the initialed grievance
 procedure in their agreement, the Panel stated:
 
          This does not mean, however, that we endorse the substance of
       this provision.  The Employer, in our view, has raised some valid
       concerns regarding the cumbersome nature of such a procedure.
       Accordingly, the agreement should be amended to allow either party
       to reopen the grievance procedure article after one year from the
       effective date of the agreement for the express purpose of
       negotiating changes in it.  Of course, the parties may agree to
       negotiate sooner.
 
    On May 6, 1981, Mr. Pierce wrote to the Panel and stated that the
 Respondent would refuse to comply with the Panel's determination with
 respect to the grievance procedure issue (G.C. Exh. 6).  /14/ He stated:
 
          With regard to that part of the Panel's order which constituted
       action extending beyond the request for assistance and which
       purported to direct the parties to adopt the 'agreed-to language'
       of the July 10, 1979 grievance procedure . . . the Employer
       maintains, consistent with the reasons and position contained in
       its October 14, 1980 letter to the Union and reasserted before the
       Panel that the Employer 'cannot and will not implement that
       Tentative Procedure.'
 
    Proof was adduced during the hearing that the Respondent had not
 agreed to accept the initialed grievance procedure (Tr. 117-118).
 
                        Discussion and Conclusions
 
    The complaint alleges that Respondent's refusal to comply with the
 Panel's April 30, 1981 Order was violative of Section 7119(c)(5)(C) of
 the Statute, and further that this conduct constituted unfair labor
 practices within the meaning of Sections 7116(a)(1), (5), (6) and (8) of
 the Statute.
 
    Section 7119(c)(5)(C) provides:
 
          (C) Notice of any final action of the Panel under this Section
       shall be promptly served upon the parties, and the action shall be
       binding on such parties during the term of the agreement, unless
       the parties agree otherwise.
 
    Sections 7116(a)(1), (5), (6) and (8) make it an unfair labor
 practice to interfere with, restrain, or coerce any employee in the
 exercise by the employee of any right under the Statute;  to refuse to
 consult or negotiate in good faith with an agency as required by the
 Statute;  to fail or refuse to cooperate in impasse decisions as
 required by the Statute;  and to otherwise fail or refuse to comply with
 any provision of the Statute.
 
    The Statute does not sanction Authority review of a Panel Decision
 and Order except through unfair labor practice procedures initiated by
 the party alleging noncompliance with a Panel Decision and Order.  State
 of New York, Division of Military and Naval Affairs and New York
 Council, Association of Civilian Technicians, Inc., 2 FLRA No. 20
 (December 5, 1979);  State of California National Guard, Sacramento,
 California, 2 FLRA No. 21 (December 5, 1979);  California National
 Guard, Fresno Air National Guard Base, Fresno, California, 2 FLRA No. 22
 (December 5, 1979);  State of Nevada National Guard, 7 FLRA No. 37
 (November 19, 1981).  Review is appropriate in this case since the Panel
 Decision and Order is before the Authority in the context of an unfair
 labor practice proceeding.  There is no factual issue concerning the
 Respondent's failure to comply with the Panel's Decision and Order.
 However, the Respondent argues that there was no basis for Panel
 jurisdiction.
 
    The first ground relied upon to establish a lack of jurisdiction
 rests upon an assertion that there was no specific request filed with
 the Panel to resolve an impasse concerning the initialed grievance
 procedure.
 
    Section 7119(b) of the Statute provides in part:
 
          (b) If voluntary arrangements, including the services of the
       Federal Mediation and Conciliation Service or any other
       third-party mediation, fail to resolve a negotiation impasse -
 
          (1) either party may request the Federal Service Impasses Panel
       to consider the matter . . . .
 
    Section 7119(c)(5)(A) of the Statute provides in pertinent part:
 
          (5)(A) The Panel or its designee shall promptly investigate any
       impasse presented to it under subsection (b) of this Section . . .
       .
 
    Section 2471.1(a) of the Authority's Regulations (5 C.F.R.
 2471.1(a)), provides:
 
          If voluntary arrangements, including the services of the
       Federal Mediation and Conciliation Service or any other
       third-party mediation, fail to resolve a negotiation impasse:
 
          (a) Either party, or the parties jointly, may request the Panel
       to consider the matter by filing a request as hereinafter provided
       . . . .
 
    Section 2471.2 (5 C.F.R. 2471.2) reflects that copies of a "request
 form" may be obtained from the Panel "for use by the parties in filing a
 request with the Panel for consideration of an impasse."
 
    Section 2471.3 (5 C.F.R. 2471.3) sets forth that a request must be in
 writing;  identify the parties, and individuals authorized to act on
 their behalf;  provide a "statement of issues at impasse," and a summary
 of the positions of the initiating party with respect to the issues;
 and the number, length, and dates of negotiation and mediation sessions
 held, including the nature and extent of all other voluntary
 arrangements utilized.
 
    Counsel for the Respondent argues that the Respondent's December 1,
 1980 request for assistance did not identify the initialed grievance
 procedure as an area for Panel consideration, and that this failure
 operates to deny the Panel of any jurisdiction over the issue.  This
 argument does not have merit.  Section 7119(b)(1) provides that either
 party may request the Panel "to consider the matter," after making
 voluntary efforts to resolve a dispute and after utilizing mediation.
 Section 2471.1(a) of the Regulations tracks this language by giving
 either party the right to request Panel consideration of "the matter."
 The Panel's investigatory authority (provided in Section 7119(c)(5)(A))
 is based upon the request of a party to consider a "matter," rather than
 any specific impasse issue.  This view is strengthened by the fact that
 the Panel is given authority under Section 7119(c)(5)(A) to "investigate
 any impasse presented to it" under Section 7119(b), and not just those
 technically identified as impasse issues in an initial request.
 
    It is very clear that the dispute relating to the initialed grievance
 procedure was presented to the Panel by the Union and/or the Respondent.
  The initial request for Panel assistance filed on December 1, 1980
 alluded to the grievance procedure issue, and stated that the Union felt
 that it had been concluded.  The request proposed "that the agency be
 directed to forward to the Administrator all articles on which tentative
 agreement has been reached." Specific reference was made to negotiation
 and mediation sessions wherein the grievance procedure was discussed.
 The Union's statement of position on the initialed grievance procedure,
 the argument that the Respondent be directed to accede to the Union
 position, and reference to the sessions wherein the subject was a topic
 of concern, all indicate that the matter brought to the attention of the
 Panel by the Union carried with it key elements of the impasse
 pertaining to the initialed grievance procedure.
 
    Mr. Pierce's December 17, 1980 submission to the Panel picks up on
 the grievance procedure issue by noting that "the Employer asserts that
 the matters and issues involved with this Article are still obviously
 unresolved." Furthermore, Mr. Pierce spells out a detailed position in
 opposition to his December 17, 1980 submission.
 
    Regardless of whether or not the Union technically identified the
 grievance procedure question as an impasse issue in the Union's January
 2, 1981 letter to the Panel, the Union did nevertheless, pose the
 grievance procedure issue by repeating the Union's insistence on the
 initialed grievance procedure, and by repudiating the Respondent's
 effort to obtain approval of a different procedure proposed by the
 Respondent.
 
    In response to the Panel's January 13, 1981 request for grievance
 procedure proposals, and statements of position relating to this subject
 and other impasse issues, the Union again urged adoption of the
 initialed grievance procedure, and the Respondent relied upon material
 made available to the Panel by Mr. Pierce on December 17, 1980,
 particularly the Respondent's insistence upon the grievance procedure
 article previously proposed by Mr. Pierce as an alternative to the
 initialed grievance procedure.
 
    In Mr. Pierce's January 28, 1981 statement of position to the Panel,
 he again urged adoption of Respondent's proposed grievance procedure,
 and indicated that this issue had not been resolved by the parties.
 
    The Union's February 6, 1981 rebuttal brief urged the Panel to adopt
 the initialed grievance procedure, and discussed the reason for the
 Union position.  Mr. Pierce's February 9, 1981 rebuttal brief,
 acknowledged, and at the same time attempted to deny, that the grievance
 procedure element constituted an impasse issue.  However, the net effect
 of this document clearly delineates a rationale for concluding that the
 parties had reached an impasse as to which of the two grievance
 procedures should be adopted.  Again Mr. Pierce urges the Panel to adopt
 the grievance procedure proposed by Mr. Pierce.  At no point does he
 interpose objection to the Panel's consideration of this issue.  In fact
 it is clear that he anticipated the possibility of some benefit on this
 point from the Panel's deliberations.
 
    The Respondent's argument assumes that an initial request for
 assistance must specifically identify an issue as an impasse issue, and
 further that in the absence of such identification, the Panel is
 precluded from discovering and resolving real impasse issues separating
 the parties.  Neither the statute nor the regulations mandate such a
 limited view of the Panel's authority.  A Panel request must be
 considered in its entirety, together with other documents submitted to
 the Panel, and Panel factfinding, to determine whether or not an issue
 has been properly posed for resolution.  The initial request for
 assistance, required by Section 7119(b)(1) of the Statute, and Section
 2471.1(a) of the regulations, operates to confer upon the Panel,
 jurisdiction to consider a "matter," as distinct from specifically
 defined impasse issues.  To hold otherwise would operate to render
 useless Panel procedures designed to surface and then sharpen genuine
 impasse issues prior to resolution by the Panel.
 
    In this case the Panel indicated that it was proceeding under the
 provisions of Section 2471.6(a)(2) of the regulations (5 C.F.R.
 2471.6(a)(2)).  It provides:
 
          (a) Upon receipt of a request for consideration of an impasse,
       the Panel or its designee will promptly conduct an investigation,
       consulting when necessary with the parties and with any mediation
       service utilized.  After due consideration, the Panel shall
       either:
 
                                .  .  .  .
 
          (2) Recommend to the parties procedure, including but not
       limited to arbitration, for the resolution of the impasse and/or
       assist them in resolving the impasse through whatever methods and
       procedures the Panel considers appropriate.
 
    By proceeding under the provisions of Section 2471.6(a)(2) of the
 Regulations the Panel was following the mandate set forth in Section
 7119(c)(5)(A) of the Statute, that is it was investigating "any impasse
 presented to it" in a "matter" referred to the Panel by a party under
 the provisions of Section 7119(b) of the Statute.
 
    The facts indicate that the controversy concerning the grievance
 procedure surfaced in the Union's December 1, 1980 request for Panel
 assistance regardless of the Union's initial disclaimer that the
 grievance procedure question was not being raised by the Union.  If this
 were not the case, the result would not be different, since an
 examination of documentary evidence discloses eagerness on the part of
 Mr. Pierce to invoke Panel jurisdiction over the grievance procedure
 issue.  That is, the Respondent also effectively raised the subject as
 an issue, despite some later incidental assertions that the Respondent
 did not intend to broach the topic.  The Respondent's contention that
 the subject was not properly raised as an issue must therefore be
 rejected in the light of strong evidence that the grievance procedure
 issue was raised by the parties for Panel consideration and resolution.
 
    Counsel for the Respondent contends that the facts of this case do
 not support a finding that the parties reached an impasse on the
 grievance procedure issue.  This argument must also be rejected.
 Section 2470.2(e) of the Regulations defines the term "impasse" as
 follows:
 
          (e) the term impasse means that point in the negotiation of
       conditions of employment at which the parties are unable to reach
       agreement, notwithstanding their efforts to do so by direct
       negotiations and by the use of mediation or other voluntary
       arrangements for settlement.
 
    The record here shows that the parties did agree initially concerning
 the provisions of a grievance procedure, but that the Respondent, after
 changing negotiators, withdrew from the agreement and interposed a
 completely new grievance procedure for consideration.  Thereafter,
 efforts to resolve the disagreement over the content of a negotiated
 grievance procedure proved to be futile, despite the use of mediation.
 The fact that the Union considered the initialed grievance procedure a
 binding agreement does not attenuate the nature of the impasse.  It was
 the Respondent that generated the circumstances which caused the Union
 to advance this argument and it was the Respondent's withdrawal from the
 tentative agreement that placed the parties into a posture of
 disagreement over the provisions of the negotiated grievance procedure.
 The fact remains that continued negotiations over conditions of
 employment relating to the grievance procedure ensued following the
 Panel's June 19, 1980 instruction to resume negotiations.  /15/ Despite
 mediation the parties reached a point in these negotiations, at which
 the parties were unable to reach agreement on the grievance procedure
 issue.  These circumstances constituted an "impasse" within the meaning
 of Section 2470.2(e) of the Regulations.
 
    Counsel representing the Respondent also attacks the Panel Decision
 and Order on the ground that the initialed grievance procedure is
 contrary to Sections 7121(b)(1) and (2) of the Statute.  These
 provisions provide that a negotiated grievance procedure must be "fair
 and simple," and "provide for expeditious processing" of grievances.
 Respondent's argument relies heavily on a statement in the April 30,
 1981 Panel Decision and Order to the effect that the, "The Employer . .
 . has raised some valid concerns regarding the cumbersome nature of such
 a procedure." (G.C. Exh. 5 at page 7).  This argument has no merit as it
 amounts to a mere disagreement with the Panel's disposition.  There was
 no showing that procedure adopted by the Panel was not "fair and
 simple," or that it failed to "provide for expeditious processing" of
 grievances.  It is obvious that grievance procedures vary, and that the
 Statute does not prescribe any specific grievance procedure or
 procedures.  The statutory provisions relied upon provide broad general
 criteria for the guidance of those engaged in collective bargaining.
 These broad standards may be met in different ways by negotiators.  For
 purposes of this case it is sufficient to say that the Panel statement
 relied upon may not be construed as a basis for a finding that there was
 a failure to comply with Section 7121(b)(1) and (2) of the Statute.
 There was no showing that the initialed grievance procedure adopted was
 otherwise contrary to law.
 
    Counsel for the Respondent contends that the Panel's April 30, 1981
 Decision and Order names the "National Aeronautics and Space
 Administration" as the Employer subject to the Panel's Order, and that
 the complaint as amended at the hearing identified the "National
 Aeronautics and Space Administration (NASA) Headquarters" as the
 Respondent.  /16/ It is argued that the Panel Decision and Order directs
 an "agency," within the meaning of Section 7103(a)(3) of the Statute to
 comply with the Panel Order, and that the complaint alleges unfair labor
 practices on the part of an "activity" within the meaning of Section
 2421.4 of the Regulations (5 C.F.R. 2421.4).  Counsel claims that the
 National Aeronautics and Space Administration as an agency was removed
 from the case at the time of the amendment of the complaint.
 
    The Panel Decision and Order indicates that the Employer in Case No.
 81 FSIP 23 was identified as the "National Aeronautics and Space
 Administration, Washington, D.C.," and further, a careful reading of the
 Decision and Order reflects that the Employer named therein was in fact
 the Headquarters element of the National Aeronautics and Space
 Administration located in the District of Columbia.  It is obvious that
 individuals representing the Employer in Case No. 81 FSIP 23, were
 speaking on behalf of the Headquarters element of the agency.  Any other
 construction of the Panel's Decision and Order is inconceivable in the
 light of terminology utilized by the Panel and by the Respondent in
 documents submitted to the Panel.
 
    In summary, the Decision and Order reflects that the Panel was in
 fact directing the Headquarters element of the agency to comply.  The
 Employer is specifically identified by the Panel as the "National
 Aeronautics and Space Administration, Washington, D.C.," and the record
 herein shows that the Headquarters element is in fact located in
 Washington, D.C.  These factors combine to indicate that the Respondent
 named in the complaint, and the Employer identified in the Panel's
 Decision and Order are not separate entities as claimed, but are instead
 one and the same organizational entities.
 
    Prior to the hearing counsel representing the Respondent moved to
 dismiss the complaint on the ground that the charge filed was executed
 by Mr. Richard E. Storm, President of the Union, and that Mr. Storm was
 a "management official" within the meaning of Section 7103(a)(2) of the
 Statute.  /17/ The motion to dismiss was denied by the undersigned prior
 to hearing in a November 13, 1981 Decision and order on prehearing
 motions (G.C. Exh. 1(z)).  The motion to dismiss was renewed in
 Respondent's post-hearing brief.
 
    Counsel representing the Respondent contends that as a "management
 official," Mr. Storm was precluded from acting on behalf of the Union by
 reason of Section 7120(e) of the Statute, and that since he did not
 specifically sign the charge in an individual capacity, no valid charge
 supports the issuance of the complaint.  /18/
 
    After reconsideration of the motion it must be again concluded that
 no basis for the motion to dismiss has been presented.  /19/ Section
 7118(a)(1) of the Statute provides in part:
 
          (a)(1) 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 and cause to be served upon the agency or labor organization
       a complaint . . . .
 
    Section 7103(a)(1) of the Statute defines the word "person" as, "an
 individual, labor organization, or agency." The Authority's Rules and
 Regulations incorporate this same language to define "person." 5 C.F.R.
 2421.2(a).  Section 2423.3 of the Regulations (5 C.F.R. 2423.4)
 provides:
 
          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.
 
    Section 7120(e) of the Statute provides:
 
          (e) This chapter does not authorize participation in the
       management of a labor organization or acting as a representative
       of a labor organization by a management official, a supervisor, or
       a confidential employee, except as specifically provided in this
       chapter, or by an employee if the participation or activity would
       result in a conflict or apparent conflict of interest or would
       otherwise be incompatible with law or with the official duties of
       the employee.  /20/
 
    It is clear that reliance upon Section 7120(e) in the manner outlined
 is misplaced.  In the private sector an employer may not challenge the
 authority of a particular individual to act on behalf of a labor
 organization in filing charges of unfair labor practices because a
 charge may be filed by any person or labor organization, and because a
 charge is merely a means whereby action on the part of the National
 Labor Relations Board is instituted, and is not a formal pleading filed
 by a party to the proceeding.  General Furniture Manufacturing, 26
 N.L.R.B. 74, 6 LRRM 557 (1940);  Texas Textile Mills, 58 N.L.R.B. 352,
 15 LRRM 41 (1944);  Blount Farmers Cooperative, Inc., 150 N.L.R.B. 1681,
 58 LRRM 1321 (1965).  For purposes of this discussion the statutory
 scheme found in the private sector is nearly identical to that developed
 under the Federal Service Labor-Management Relations Statute.
 
    The Authority has also held that a charge is not a pleading and that
 it merely serves to initiate an investigation by the Authority.  Defense
 Logistics Agency, 5 FLRA No. 21, (February 12, 1981).  The Authority has
 also adopted a broad interpretation of the phrase "any person," as used
 in Section 7103(a)(1) of the Statute.  National Army and Air Technicians
 Association, Local 371, 7 FLRA No. 22 (October 30, 1981);  /21/ National
 Treasury Employees Union and National Treasury Employees Union, Chapter
 53, 6 FLRA No. 37 (1981).  Although not controlling here, case law
 authority developed under Executive Order 11491, established the rule
 that a contention that no pre-complaint charge had been filed as
 required by the Assistant Secretary's Regulations could not be raised
 after the issuance of a notice of hearing, as the orderly processing of
 unfair labor practice complaints required that such pre-complaint
 defects be raised prior to the issuance of a notice of hearing.
 Veterans Administration Hospital, Charleston, South Carolina, A/SLMR No.
 87, 1 A/SLMR 400 (August 3, 1971);  New York Army and Air National
 Guard, Albany, New York, A/SLMR No. 441, 4 A/SLMR 681 (September 30,
 1974).  These cases are of interest in that they indicate the
 reluctance, under Executive Order law, to invalidate complaints even in
 the absence of a formal charge, if such defects were not first raised
 prior to issuance of a notice of hearing.
 
    Taking into consideration the fact that a charge may be filed by "any
 person";  the fact that the charge herein was filed by a "person" within
 the meaning of the Statute and pertinent regulations;  and the fact that
 a charge is not a formal pleading, but merely serves to provide a basis
 for an Authority investigation into unfair labor practices, it is
 concluded that allegations that a Union official signing a charge is a
 "management official" may not be interposed to provide a basis for a
 motion to dismiss a complaint.  /22/
 
    Counsel representing the Respondent contends that the complaint
 should be dismissed on the ground that the General Counsel has failed to
 prove that the AFTE, as distinct from the NHPA, filed the Charge and
 Amended Charge, and represents employees in the bargaining unit.  This
 argument must also be rejected.  The record discloses that the AFTE was
 certified as the exclusive representative on May 15, 1970, and that an
 amendment of certification petition was pending as of the date of the
 hearing.  It was also conclusively established that the AFTE and NHPA
 were, and are, one and the same, and that the NHPA designation has been
 adopted by the AFTE.  The NHPA designation has been utilized by the AFTE
 and the Respondent although the certification of representative
 continues to identify the Union as the AFTE.  In short, the official
 designation of the Union is AFTE, although the name NHPA has been
 extensively used.
 
    The complaint specifically alleges that AFTE was the name used at the
 time of certification, and that there is currently pending a petition to
 change the name AFTE to NHPA.  This allegation is tantamount to an
 allegation that AFTE and NHPA are in fact one and the same.  It is
 immaterial that facts concerning the name of the Union might have been
 pleaded in a different way.  It is sufficient that the complaint
 adequately apprised the Respondent of the circumstances surrounding the
 use of the two names.
 
    The record is not confusing or contradictory on this issue as is
 alleged by counsel representing the Respondent.  The proof was clear and
 certain concerning the relationship of the two names, and no benefit
 should inure to the Respondent as a result of the fact that the name
 change has not been entirely effectuated.  Respondent's contention that
 only the NHPA, and not the AFTE, is recognized by the Respondent as the
 exclusive bargaining representative is a specious "play on words."
 
    Based upon the record it is concluded that the allegations of fact in
 the complaint, as amended, have been established by a preponderance of
 the evidence, and that the Respondent's actions in failing and refusing
 to cooperate in and comply with the Federal Service Impasses Panel
 Decision and Order dated April 30, 1981, violated Section 7116(a)(6) of
 the Statute.  This conduct necessarily tended to interfere with,
 restrain, or coerce employees in the exercise of their rights assured by
 the Statute, and thus violated Section 7116(a)(1) as well.  In view of
 this finding it is unnecessary to pass upon whether the Respondent's
 conduct also violated Sections 7116(a)(5) and (8).  State of
 California's National Guard, 8 FLRA No. 11 (February 4, 1982).
 Accordingly, I recommend that the Authority issue the following Order:
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and Section 7118 of the Federal
 Service Labor-Management Relations Statute, it is hereby ordered that
 the National Aeronautics and Space Administration, Headquarters,
 Washington, D.C. shall:
 
    1.  Cease and desist from:
 
          (a) Failing or refusing to cooperate and comply with the April
       30, 1981 Decision and Order issued by the Federal Service Impasses
       Panel in Case No. 81 FSIP 23.
 
          (b) In any like or related manner, interfering with,
       restraining, or coercing employees in the exercise of their rights
       assured by the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
          (a) Cooperate and comply with the April 30, 1981 Decision and
       Order of the Federal Service Impasses Panel issued in Case No. 81
       FSIP 23, by adopting the grievance procedure article initialed by
       the parties on July 10, 1979, and by including therein a provision
       allowing either party to reopen the grievance procedure article
       after one year from the effective date of the agreement for the
       purpose of negotiating changes in the grievance procedure.
 
          (b) Post at its facilities wherever bargaining unit employees
       are located, copies of the attached Notice on forms to be
       furnished by the Authority.  Upon receipt of such forms, they
       shall be signed by the Administrator, National Aeronautics and
       Space Administration, and shall be posted and maintained for 60
       consecutive days in conspicuous places, including all bulletin
       boards and other places where notices to employees are customarily
       posted.  The Administrator shall take reasonable steps to insure
       that such Notices are not altered, defaced, or covered by any
       other material.
 
          (c) Pursuant to Section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, 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.
 
                                       LOUIS SCALZO
                                       Administrative Law Judge
 
 Dated:  March 4, 1982
          Washington, D.C.
 
 
 
                                 APPENDIX
 
                          NOTICE TO ALL 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 EMPLOYEES THAT:
 
 WE WILL NOT fail or refuse to cooperate and comply with the April 30,
 1981 Decision and Order issued by the Federal Service Impasses Panel in
 Case No. 81 FSIP 23.  WE WILL NOT in any like or related manner,
 interfere with, restrain, or coerce our employees in the exercise of
 their rights assured by the Federal Service Labor-Management Relations
 Statute.  WE WILL cooperate and comply with the April 30, 1981 Decision
 and Order of the Federal Service Impasses Panel issued in Case No. 81
 FSIP 23, by adopting the grievance procedure article initialed by the
 parties on July 10, 1979, and by including therein a provision allowing
 either party to reopen the grievance procedure article after one year
 from the effective date of the agreement for the purpose of negotiating
 changes in the grievance procedure.
                                       (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 III, Federal Labor Regulations Authority, whose address is:  1111
 18th Street, NW., Suite 700, Washington, D.C.  20036, and whose
 telephone number is (202) 653-8452.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The complaint filed refers to the Respondent as the "National
 Aeronautics and Space Administration." In the initial answer, motion
 papers, and other documents filed herein by the Respondent, the
 Respondent is designated as the "National Aeronautics and Space
 Administration, Headquarters," and the address of the "National
 Aeronautics and Space Administration, Headquarters," is referred to as
 being located at 600 Independence Avenue, S.W., Washington, D.C. 20546.
 It also appeared that in both the original and first amended charge
 filed, the Respondent was identified as the "National Aeronautics and
 Space Administration (NASA), Headquarters, 600 Independence Avenue,
 Washington, D.C. 20546."
 
    At the commencement of the hearing counsel for the General Counsel
 moved to amend the complaint so as to more accurately identify the
 Respondent as "National Aeronautics and Space Administration,
 Headquarters, Washington, D.C." (Tr. 12).  In the absence of evidence of
 prejudice shown by counsel for the Respondent;  and since the amendment
 merely conforms the complaint to a more appropriate designation of the
 Respondent as disclosed in the charge and first amended charge, and as
 disclosed by counsel representing the Respondent;  the motion to amend
 was granted under authority provided in 5 C.F.R. 2423.12(d).
 
 
    /2/ Counsel representing the Respondent moved to correct the
 transcript as follows:
 
    Page Line Change
 
       3 13 Add "84" to the right column 3 21 Add "212-214" to the right
       column
 
    131 21 "1989" to "1980"
 
    163 23 "ad" to "as"
 
    187 9 add "return" before "letter"
 
    190 8 "f" to "5"
 
    197 6 "po-tion" to "portion"
 
    199 17 "through" to "threw"
 
    204 18 "247.16(a)" to "2471.6(a)"
 
    205 1 "7919" to "7119"
 
    205 2 "7919" to "7119"
 
    210 3 "useless to "ULP"
 
    The motion to correct is granted.  The following additional
 corrections are also made in the hearing transcript:
 
    Page Line Change
 
    11 4 "notify" to "modify"
 
    17 14 "read" to "rule"
 
    92 16 "the amended" to "you suggest that the amendment"
 
    92 17 "that tantamounts" to "that is tantamount"
 
    92 18 "that simple" to "that a simple"
 
    92 18 "tact" to "tack"
 
    104 21 "see your" to "see that your"
 
    134 11 "wored" to "worked"
 
    134 15 "should" to "it should"
 
    135 22 "thee" to "there"
 
    138 7 "procedureal" to "procedurally"
 
    139 7 "in" to "on"
 
    146 23 add "of" before "the"
 
    153 2 add "have" before "got"
 
    187 25 "tracts" to "tracks"
 
    188 7 "complext" to "complex"
 
    188 10 "might" to "to"
 
    217 15 "elude" to "allude"
 
 
    /3/ NHPA, a name informally adopted to reflect the growth of AFTE,
 was merely another name used to identify the Charging Party.  The record
 disclosed that on May 15, 1970, the Charging Party was certified as the
 exclusive representative of a bargaining unit consisting of "(a)ll full
 time classified scientists and engineers in NASA class codes 200, 700,
 and 900, employed by NASA Headquarters in the greater Washington, D.C.
 area, including the Germantown, Maryland location, excluding management
 officials, supervisors, supergrade (GS-16 and above) employees, and
 those in excepted positions." (G.C. Exh. 2).
 
    On February 19, 1981, an amendment of certification petition was
 filed by the Respondent to amend the unit description and to formally
 change the name of the Charging Party from AFTE to NHPA (G.C. Exh. 3).
 In the petition, the Respondent, through Mr. Walter Pierce, Labor
 Relations Officer, acknowledged that since the date of original
 certification, AFTE "has adopted the style NASA Headquarters
 Professional Association, and its national body . . . changed its name
 to International Federation of Professional and Technical Engineers."
 
    During the course of the hearing Respondent's counsel stipulated that
 the Respondent has dealt with the Charging Party as the NHPA, and
 further that the Authority has not yet ruled on the name change proposed
 in the Respondent's amendment of certificate petition (Tr. 55-57).
 
    In summary, it was conclusively established that the Charging Party
 designated in the complaint as the AFTE, and in the Certification of
 Representative as the AFTE, is one and the same as the labor
 organization referred to as the NHPA.  Further, the designation of the
 Charging Party in the complaint as the AFTE is otherwise appropriate as
 an adequate description of the Charging Party in the absence of a formal
 change in the Certification of Representation.
 
 
    /4/ Mr. Elliott retired in August of 1979 (Tr. 109).
 
 
    /5/ Mr. Pierce noted that the Union's April 22, 1980 request for
 Panel assistance indicated that an impasse issue on this point existed
 and further that "management confirmed the fact with its response." (R.
 Exh. 4 at 2).
 
 
    /6/ During these negotiations the parties did resolve other impasse
 issues not related to the grievance procedure question.
 
 
    /7/ The three articles were:  (1) Actions Due to Unacceptable
 Performance, (2) Adverse Actions, and (3) Classification Survey
 Procedures.
 
 
    /8/ A copy of the submission was served on the Union (Tr. 165).
 
 
    /9/ Interestingly, counsel for Respondent notes in his post-hearing
 brief:  "(T)he Respondent particularly contested the Union's statement
 that 'the Grievance Procedure matter has been concluded' by asserting
 'that the matters and issues involved with this Article are still
 obviously unresolved' (G.C. Exh. 8, p. 1 at Article 12 item 1)."
 (Respondent's brief at 6).
 
 
    /10/ Respondent's post-hearing brief repeats the first sentence of
 the first paragraph of this quote, and urges it as authority for the
 contention that the grievance procedure was not raised as an issue by
 the Union;  however, it is clear from the language quoted above, that
 regardless of terminology used, the Union perceived a serious
 disagreement relating to the initialed grievance procedure.
 
 
    /11/ The issue concerning classification survey procedures was
 omitted by the Panel because the Respondent argued that it had no duty
 to bargain over this issue and because the Union had filed a
 negotiability appeal relating to this phase of the matter.
 
 
    /12/ Although not relevant here, the Union also outlined positions
 concerning other articles.
 
 
    /13/ The parties were also ordered to adopt the Respondent's proposal
 on adverse actions with coverage expanded to include suspensions of more
 than 14 days, and the Respondent's proposal on actions based on
 unacceptable performance.  These elements of the Decision and Order are
 not in issue.
 
 
    /14/ Mr. Pierce indicated that other portions of the Decision and
 Order would be honored.
 
 
    /15/ However characterized by the Respondent or by the Panel, the
 record indicates that discussions following the June 19, 1980 Panel
 instruction to resume negotiations, were in fact "negotiations" within
 the meaning of Section 2470.2(e) of the Regulations.  Moreover, it is
 clear that the Panel determined that an impasse had been reached over
 which of the two grievance procedure articles proposed should be
 included in the collective bargaining agreement.
 
    The parties did not become involved in a controversy over the
 negotiability of any proposal.  As a result of the Respondent's retreat
 from the initialed grievance procedure, the substance of their dispute
 involved disagreement concerning the merits of the grievance procedures
 proposed by the parties.  The Authority has held that such disputes
 concern an impasse in negotiations appropriate for resolution by the
 Panel.  National Federation of Federal Employees, Local 1028, 7 FLRA No.
 17 (October 30, 1981).
 
 
    /16/ Actually, the complaint as amended identifies the Respondent as
 the "National Aeronautics and Space Administration Headquarters,
 Washington, D.C." as the Respondent.  The Panel's April 30, 1981
 Decision and Order refers to the "National Aeronautical and Space
 Administration, Washington, D.C." as the Employer.
 
 
    /17/ From the motion and response thereto, it appeared that the
 Respondent filed a clarifi