14:0539(81)CA - Interior, Lower Colorado Dams Project, Water and Power Resources Service and IBEW Local 640 -- 1984 FLRAdec CA



[ v14 p539 ]
14:0539(81)CA
The decision of the Authority follows:


 14 FLRA No. 81
 
 UNITED STATES DEPARTMENT OF THE
 INTERIOR, LOWER COLORADO DAMS
 PROJECT, WATER AND POWER RESOURCES
 SERVICE
 Respondent
 
 and
 
 INTERNATIONAL BROTHERHOOD OF
 ELECTRICAL WORKERS, LOCAL 640,
 AFL-CIO-CLC
 Charging Party
 
                                            Case No. 9-CA-174
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had not engaged
 in the unfair labor practices alleged in the complaint, and recommending
 that the complaint be dismissed.  /1/ Exceptions were filed by the
 General Counsel and the Charging Party, and Oppositions thereto were
 filed by the Respondent.
 
    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, the Authority hereby adopts the
 Judge's findings, conclusions and recommendation only to the extent
 consistent herewith.
 
    The complaint alleges that the Respondent violated section 7116(a)(1)
 and (5) of the Statute by unilaterally removing from the bargaining unit
 represented by the Charging Party, International Brotherhood of
 Electrical Workers, Local 640, AFL-CIO-CLC (the Union) a position
 described as "General Foreman." As stipulated by the parties and found
 by the Judge, the Union is the bargaining representative of a unit
 described as "(A)ll hourly employees . . . in the trades and crafts of
 the (Parker-Davis) Project who are exempt from the Classification Act of
 1979, as amended, and who are engaged in operation and maintenance
 activities for the Project." Historically, this unit has included
 supervisory as well as nonsupervisory employees.  This unit continued in
 existence as appropriate under the provisions of Section 15 of Executive
 Order 10988, and Section 24 of Executive Order 11491, as amended.
 Section 7135(a)(1) of the Statute authorizes the renewal or continuation
 of such units which came into existence prior to the effective date of
 the Statute.
 
    In 1977, as a result of the creation of the Department of Energy,
 approximately two-thirds of the unit represented by the Union was
 transferred to the new Department, and the Parker-Davis Project became
 part of the Lower Colorado Dam Project in the ensuing reorganization.
 After the reorganization, the Respondent agreed with the Union to
 attempt coordinated bargaining involving the Respondent, the Union and
 the American Federation of Government Employees, AFL-CIO, which
 exclusively represents a separate unit of Respondent's employees.
 Thereafter, the Union agreed to enter into a Memorandum of Understanding
 (MOU) with the Respondent identifying four specific General Foreman
 positions as the only ones having supervisory duties and removing such
 positions from the bargaining unit as they became vacant.  On March 17,
 1978, the Union signed the MOU, which purported to amend the unit
 description appearing in the parties' 1977 collective bargaining
 agreement, and on April 3 the MOU was explained to a Headquarters
 representative of the International Brotherhood of Electrical Workers,
 AFL-CIO (IBEW) for later submission to the International President for
 his approval, in accordance with the terms of the parties' 1977
 agreement.  By letter dated August 21, 1978, the International President
 of the IBEW advised the Respondent that he would not approve the MOU.
 By letter dated August 25, 1978, the Office of the Secretary of the
 Interior advised the IBEW that the MOU had become operative by virtue of
 the provisions of Section 15 of Executive Order 11491, as amended.  On
 August 27, the Respondent implemented the provisions of the MOU by
 filling a vacant General Foreman position and removing the new incumbent
 of that position from the bargaining unit.  Neither the Union nor the
 IBEW protested, and no unfair labor practice charge was filed concerning
 the Respondent's action.  In July 1979, IBEW learned that the Respondent
 intended to fill another General Foreman vacancy and remove the position
 from the bargaining unit.  Although IBEW informed the Respondent that it
 considered the MOU to have no validity and that the Respondent had no
 right to remove any position from the bargaining unit, Respondent
 reasserted the validity of the MOU on August 14, 1979, and advertised
 the availability of the General Foreman position on August 29, 1979.  On
 September 28, 1979, the instant charge was filed.  On October 21, 1979,
 the vacant position was filled and removed from the bargaining unit.
 
    The Administrative Law Judge issued his Decision recommending that
 the complaint be dismissed on two grounds.  The Judge found that (1) the
 charge upon which the complaint is based was untimely filed under the
 provisions of section 7118(a)(4)(A) of the Statute, and (2) the Union's
 acceptance of underlying considerations leading to the MOU and the long
 period of inaction by the IBEW after the MOU was signed constituted
 acquiescence in or approval thereof.  With regard to his finding of
 untimeliness, the Judge relied upon the Supreme Court's decision in
 Local Lodge No. 1424, International Association of Machinists, AFL-CIO
 v. National Labor Relations Board, (Bryan Manufacturing Company), 362
 U.S. 822 (1960).  More specifically, he found that the unlawful conduct
 asserted in the charge and the complaint concerned the continued
 enforcement of the MOU, which itself was "entirely benign," i.e., lawful
 on its face, and that the allegation that enforcement of this agreement
 constituted an unfair labor practice could be sustained only by relying
 upon the refusal of IBEW's International President to approve the MOU,
 an event which occurred in August 1978, more than 6-months prior to the
 filing of the charge.  Concluding that the Supreme Court in Bryan had
 declared such reliance upon events outside the 6-month limitations
 period to convert what is otherwise legal into something illegal to be
 inconsistent with the policies underlying that statutory provision, the
 Judge dismissed the complaint as untimely.  With regard to his second
 ground for dismissing the complaint, the Judge found that the signing of
 the MOU resulted from the Respondent's agreement not to file an RA
 petition questioning the continued appropriateness of the unit
 represented by the Union, and to promote joint negotiations with the
 Union and the AFGE.  The Judge reasoned that acceptance of the
 Respondent's activities in this regard over a long period of time
 constituted, in effect, IBEW's acquiescence in or approval of the MOU.
 The Authority disagrees with both findings.
 
    Section 7118(a)(4) of the Statute provides:
 
                                .  .  .  .
 
          Sec. 7118.  Prevention of unfair labor practices
 
          (a)(4)(A) Except as provided in subparagraph (B) of this
       paragraph, no complaint shall be issued based on any alleged
       unfair labor practice which occurred more than 6 months before the
       filing of the charge with the Authority.
 
          (B) If the General Counsel determines that the person filing
       any charge was prevented from filing the charge during the 6-month
       period referred to in subparagraph (A) of this paragraph by reason
       of--
 
          (i) any failure of the agency or labor organization against
       which the charge is made to perform a duty owed to the person, or
 
          (ii) any concealment which prevented discovery of the alleged
       unfair labor practice during the 6-month period, the General
       Counsel may issue a complaint based on the charge if the charge
       was filed during the 6-month period beginning on the day of the
       discovery by the person of the unfair labor practice.
 
    A literal reading of this language clearly establishes that, except
 for the circumstances specified in section 7118(a)(4)(B) of the Statute,
 conduct or events occurring more than 6 months before the filing of an
 unfair labor practice charge cannot serve as the basis for a complaint.
 Thus, any charge alleging an unfair labor practice which is necessarily
 based on conduct or events which occurred more than 6 months before the
 filing of the charge is untimely under the provisions of section
 7118(a)(4)(A) of the Statute, unless it is established that the
 respondent agency or labor organization prevented the person filing the
 charge from discovering the allegedly unlawful conduct within the
 6-month limitations period by concealment or by failing to perform a
 duty owed to the charging party.  /2/ This limiting provision has the
 effect of preventing the litigation of stale charges, wherein the
 recollection of witness may be clouded, the availability of witnesses is
 diminished, and the loss of documentary evidence is increased.  To allow
 the processing of complaints which rely, as the basis for the allegation
 of violation, on events or conduct which occurred more than 6 months
 prior to the filing of the charge upon which the complaint is based
 would be contrary to express statutory language.  However, in the
 opinion of the Authority, where the conduct or events complained of
 occur within the 6-month period preceding the filing of the charge and
 in and of themselves may constitute unfair labor practices, evidence of
 events occurring more than 6 months prior to the filing of the charge
 may be utilized to explain the conduct or events occurring within the
 6-month period.  /3/
 
    Applying the foregoing principles herein, the Authority concludes,
 contrary to the Judge, that the unfair labor practice charge was timely
 within the meaning of section 7118(a)(4)(A) of the Statute.  Thus, as
 discussed below, the action of the Respondent in removing a position
 from the bargaining unit in and of itself may be the basis for an
 alleged unfair labor practice.  The unfair labor practice charge was
 filed within 6 months of such conduct and therefore was timely.
 Accordingly, when Respondent asserted the provisions of the MOU as
 justification for its action in removing a position from the bargaining
 unit, the General Counsel and the Union were not time barred from
 introducing evidence that the MOU never went into effect because IBEW's
 International President refused to approve it as required by the
 parties' collective bargaining agreement.  That is, the General Counsel
 was not relying upon the MOU or evidence concerning the MOU as an
 affirmative element in establishing the unfair labor practice, but was
 merely rebutting an affirmative defense raised by the Respondent.
 
    With regard to the alternative finding that the Union acquiesced in,
 or approved of, the MOU, the Authority also disagrees with the Judge.
 Whatever may have been the underlying motives of the parties in
 attempting to amend or supplement the unit description in their
 negotiated agreement, it is clear from the Judge's findings of fact that
 both parties were aware that any such amendment or supplement had to be
 approved, inter alia, by IBEW's International President to be effective.
  If the Respondent took certain actions, and refrained from taking
 others, in the expectation of approval by IBEW's International
 President, it assumed the risk that such approval would not be
 forthcoming.  The Respondent's expectation of subsequent approval cannot
 itself constitute a substitute for approval of the MOU by the
 International President.  Nor does the period of inaction by IBEW, in
 the absence of a time limit within which approval or disapproval was
 required, support a finding of acquiescence in, or approval of, the MOU.
  In any event the Respondent had specific notice as of August 21, 1978,
 that the International President would not approve the MOU, and such
 disapproval was consistently maintained thereafter.
 
    Therefore, the Respondent acted unilaterally when it removed the
 position of General Foreman from the Union's exclusively recognized
 bargaining unit.  The Authority has held that an agency's unilateral
 withdrawal of a labor organization's exclusive recognition for a
 bargaining unit constituted a violation of section 7116(a)(1) and (5) of
 the Statute.  See Defense Logistics Agency, 5 FLRA No. 21 (1981).  See
 also Interpretation and Guidance, 4 FLRA 754 (1980), wherein the
 Authority held that an agency acts at its peril in removing an employee
 from a bargaining unit based upon a determination that the employee is a
 supervisor or management official for merit pay purposes.  Accordingly,
 the Authority concludes that by its action on August 14, 1979 in
 removing from the bargaining unit the vacant position of General Foreman
 (Electrical), the Respondent violated section 7116(a)(1) and (5) of the
 Statute.
 
                                   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, the Authority hereby orders
 that the United States Department of the Interior, Lower Colorado Dams
 Project, Water and Power Resources Service, shall:
 
    1.  Cease and desist from:
 
    (a) Implementing the provisions of the Memorandum of Understanding
 dated March 17, 1978, in the absence of the requisite approval by the
 International President of the International Brotherhood of Electrical
 Workers, AFL-CIO.
 
    (b) Refusing to accord recognition to the International Brotherhood
 of Electrical Workers, Local 640, AFL-CIO-CLC, the exclusive
 representative of its employees, with regard to a position described as
 General Foreman (Electrical).
 
    (c) In any like or related manner interfering with, restraining, or
 coercing its 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) Continue to recognize the International Brotherhood of Electrical
 Workers, Local 640, AFL-CIO-CLC as the exclusive representative of its
 employees for the unit described in the collective bargaining agreement
 dated July 1977, including the position of General Foreman (Electrical),
 unless and until modified in a manner consistent with the Statute.
 
    (b) Post at its facilities 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 an appropriate official and shall be
 posted and maintained for 60 consecutive days thereafter, 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 IX, 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., May 11, 1984
 
                                       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 implement the provisions of the Memorandum of
 Understanding dated March 17, 1978, in the absence of the requisite
 approval by the International President of the International Brotherhood
 of Electrical Workers, AFL-CIO.
 
    WE WILL NOT refuse to accord recognition to the International
 Brotherhood of Electrical Workers, Local 640, AFL-CIO-CLC, the exclusive
 representative of our employees, with regard to a position described as
 General Foreman (Electrical).
 
    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 continue to recognize the International Brotherhood of
 Electrical Workers, Local 640, AFL-CIO-CLC, as the exclusive
 representative of our employees for the unit described in the collective
 bargaining agreement dated July 1977, including the position of General
 Foreman (Electrical), unless and until modified in a manner consistent
 with the Statute.
                                       (Agency)
 
 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 its provisions, they may communicate directly with the Regional
 Director, Region IX, Federal Labor Relations Authority, whose address
 is:  530 Bush Street, Room 542, San Francisco, CA. 94108 and whose
 telephone number is:  (415) 556-8105.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No.: 9-CA-174
    Hugh D. Jascourt, Esq.
    Michael C. Nash, Esq.
    Bea Chester, Esq.
       For the Respondent
 
    Thomas Angelo, Esq.
       For the General Counsel
 
    Mr. James A. Doran
 
    Elihu I. Leifer, Esq.
       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 case was initially transferred to the Authority by the parties on
 a stipulated record under the provisions of 5 C.F.R. 2429.1.  However,
 by order dated June 11, 1982, the Authority returned the case to the
 Office of Administrative Law Judges for decision.  The Authority's order
 noted that a stipulation of facts prepared by the parties had been
 agreed to by the parties "at the hearing," and that 5 C.F.R. 2423.26(a)
 required the issuance of an administrative law judge decision in such
 cases.
 
    The complaint alleges that since on or about August 14, 1979, and
 continuing to April 30, 1980, the date of issuance of the complaint, the
 United States Department of the Interior, Lower Colorado Dams Project,
 Bureau of Reclamation, (Respondent), /4/ failed or refused, and is
 continuing to fail or refuse, to bargain in good faith with the
 International Brotherhood of Electrical Workers, Local 640, AFL-CIO-CLC,
 (Charging Party or Union) /5/ in violation of Sections 7116(a)(1) and
 (5) of the Statute.  The unfair labor practices outlined were predicated
 on a letter dated August 14, 1979, addressed to Mr. James A. Doran, an
 International Representative of the IBEW, by Mr. V. B. Wilkinson,
 Project Manager, Lower Colorado Dams Project, for the purpose of
 notifying the Charging Party that the Respondent was removing from the
 unit of recognition, a Foreman position at the Davis Dam,
 notwithstanding the fact that the Charging Party expressed opposition to
 a change in the structure of the bargaining unit.  /6/
 
    Counsel representing the Respondent argues that the charge filed
 herein was not filed within the 6-month period following the occurrence
 of the unfair labor practice alleged, and that it was time barred by the
 provisions of Section 7118(a)(4) of the Statute.  It is also argued that
 the IBEW waived any right to interpose objections to the action taken by
 the Respondent.
 
    Based upon the entire record herein, including the stipulations of
 fact, the exhibits, /7/ and the briefs filed by the parties, I make the
 following findings of fact, conclusions and recommendation.
 
                             Findings of Fact
 
    The following stipulations of fact entered into the record are
 accepted as true:
 
    1.  Since at least 1951 the unit of recognition involved herein was
 contractually created by the Bureau of Reclamation, Department of the
 Interior, and the IBEW, and included supervisory employees (Stip. 2, Tr.
 5).  /8/
 
    2.  This unit of recognition was "grandfathered" under the provisions
 of Section 15 of Executive Order 10988, and Section 24 of Executive
 Order 11491 (Stip. 2, Tr. 5).
 
    3.  The unit of recognition is described as follows in the preamble
 of a 1977 collective bargaining agreement executed by the Bureau of
 Reclamation, Department of the Interior and the IBEW:
 
          (A)ll hourly employees . . . in the trades and crafts of the
       (Parker-Davis) Project, /9/ who are exempt from the Classification
       Act of 1979, as amended, and who are engaged in operation and
       maintenance activities for the Project (Stip. 2, Tr. 5;  Exh.
       2(h)).
 
    4.  The collective bargaining agreement requires that any amendments
 or renewals be approved by the IBEW (Stip. 3, Tr. 6).
 
    5.  Since 1976, the Parker-Davis Project has proposed to Local 640
 officials various plans to remove supervisory employees from the
 bargaining unit (Stip. 4A, Tr. 6).
 
    6.  In October of 1977, Public Law 95-91 created a Department of
 Energy which resulted in the transfer to the Department of Energy, from
 the Department of the Interior, about 66 percent of the employees in the
 bargaining unit represented by Local 640 at the Parker-Davis Project
 (Stip. 4B, Tr. 6).
 
    7.  As a result of the transfer, bargaining unit employees remaining
 at the Parker-Davis Project were merged by the Bureau of Reclamation
 into the "Boulder Canyon Project," and the latter was renamed /7/ "The
 Lower Colorado Dams Project Office" (Stip. 4B, Tr. 6).
 
    8.  As a result of the reorganization, the Bureau of Reclamation of
 the Department of the Interior proposed the filing of an RA petition to
 create a single bargaining unit since the American Federation of
 Government Employees represented a larger work force of employees at the
 Boulder Canyon Project (Stip. 4B, Tr. 6-7).
 
    9.  Faced with the possibility of losing a representation election,
 Local 640 opposed the filing of an RA petition and expressed a desire
 for coordinated bargaining with the two mentioned existing bargaining
 units (Stip. 4B, Tr. 7).
 
    10.  On February 6, 1978, representatives of the Respondent met with
 representatives of Local 640 (Stip. 4C, Tr. 7).
 
    11.  The eventual result of the February 6, 1978 meeting was that
 management acceded to the proposed coordinated bargaining approach and
 Local 640 agreed on March 17, 1978, to enter into a Memorandum of
 Understanding which would remove four specified foreman positions from
 the bargaining unit through attrition as the incumbents left these
 positions (Stip. 4C, Tr. 7;  Exhs. 2(c), 3(a)).
 
    12.  Since formulation of the Memorandum of Understanding outlined,
 management has refrained from filing an RA petition although the
 coordinated bargaining effort met with a lack of success and was
 terminated by mutual agreement of the parties (Stip. 4C, Tr. 7).  /11/
 
    13.  The Memorandum of Understanding was typed by Local 640, and the
 date "March 17, 1978," typed at the bottom of the document, represents
 the date on which Mr. Glynn Ross, /12/ Local 640's Business Agent signed
 the Memorandum of Understanding on behalf of Local 640.  Representatives
 of the Lower Colorado Dams Project did not sign the document at that
 time (Stip. 4D, Tr. 7, Exh. 2(b)).
 
    14.  The Memorandum of Understanding provided that only employees
 designated as "General Foreman" will have supervisory responsibility,
 that other "Foremen" will not have supervisory responsibility, and that
 the description of the unit of recognition as being inclusive of "all
 hourly employees," would not be construed as including those classified
 as "General Foremen" (Exh. 2(b)).
 
    15.  Employees holding the position designated as "General Foremen,"
 and any other position referred to in the Memorandum of Understanding,
 are, or were supervisors within the meaning of Section 2(c) of Executive
 Order 11491, and Section 7103(a)(10) of the Statute (Stip. 1, Tr. 5).
 
    16.  At the time the Memorandum of Understanding was agreed to, the
 unit of recognition described in the collective bargaining agreement
 (Paragraph 3 above) was in existence (Stip. 2, Tr. 5).
 
    17.  The effect of the Memorandum of Understanding was designed to
 remove supervisory employees from the unit of recognition described in
 the 1977 collective bargaining agreement (Stip. 2, Tr. 5).
 
    18.  The Memorandum of Understanding was treated as an amendment to
 the collective bargaining agreement by responsible management officials
 of the Department of the Interior (Stip. 3, Tr. 6).
 
    19.  On April 3, 1978, Mr. Michael C. Nash, Labor Relations Officer,
 Bureau of Reclamation, met with Mr. Gil Bateman and Mr. Robert Crum,
 representatives of IBEW's International Headquarters, supplied them with
 copies of the Memorandum of Understanding reached by Local 640, and the
 Bureau of Reclamation, explained the document, discussed it, and
 requested expedited processing of it by the IBEW (Stip. 4E, Tr. 7).
 
    20.  Mr. Nash urged that the IBEW approve the Memorandum of
 Understanding before submission of the document to the Department of
 Interior for approval under the provisions of Section 15 of Executive
 Order 11491 (Stip. 4E, Tr. 8).
 
    21.  Mr. Nash twice contacted Mr. Crum, but was not able to obtain an
 indication of IBEW's position concerning the Memorandum of Understanding
 (Stip. 4F, Tr. 8).
 
    22.  The first vacancy affected by the Memorandum of Understanding
 occurred on April 21, 1978, and Mr. Daniel B. Jensen, Labor Relations
 Officer for the Lower Colorado Region, Bureau of Reclamation, repeatedly
 stressed to Mr. Nash, the need to fill the vacancy;  and to execute the
 implement the Memorandum of Understanding (Stip. 4G, Tr. 8).
 
    23.  On May 15, 1978, Mr. Nash informed Mr. Daniel B. Jensen, that it
 would be unreasonable to have to wait a further period of time for IBEW
 to approve the Memorandum of Understanding, and that Local Bureau of
 Reclamation management had the authority to sign the document and
 forward it for Agency approval in accordance with Section 15 of
 Executive Order 11491 (Stip. 4G, Tr. 8).
 
    24.  On May 15, 1978, Mr. Jensen signed the Memorandum of
 Understanding on behalf of the Lower Colorado Dams Project Office, and
 on this same date forwarded the Memorandum of Understanding for approval
 by the Bureau of Reclamation, Department of the Interior (Stip. 4G, Tr.
 8).
 
    25.  By letter dated june 7, 1978, Mr. B. H. Spillers, chief,
 Division of Personnel and Management, Bureau of Reclamation, transmitted
 to IBEW, copies of the Memorandum of Understanding reached at the Local
 level, noted that the Bureau of Reclamation "strongly endorsed" the
 document, and urged that the IBEW International President approve the
 Memorandum of Understanding (Stip. 5, Tr. 8, Exh. 2(c)).
 
    26.  In Mr. Spillers' June 7, 1978, letter, it was noted that upon
 approval by IBEW, Mr. Spillers' office would obtain the approval of the
 Memorandum of Understanding by the Office of the Secretary, Department
 of the Interior, and would send a finalized copy of the Memorandum of
 Understanding to IBEW (Exh. 2(c)).
 
    27.  Mr. Spillers' June 7, 1978, letter reflected the following
 statement of position by the Bureau of Reclamation relative to the
 effect of the Memorandum of Understanding:
 
          The exclusion of these supervisors will be accomplished through
       a process of attrition.  That is, as supervisory positions become
       vacant and are subsequently refilled, they will be excluded from
       the bargaining unit.  There are currently four such positions at
       the two Dams, one of which is vacant.
 
          This negotiated agreement represents the best efforts of the
       local parties to accommodate the interests of each other . . .,
       thus obviating the need for submitting this matter to the
       Assistant Secretary for Labor-Management Relations.
 
                                .  .  .  .
 
          On a related matter, representatives of Local 640 and American
       Federation of Government Employees Local Union 1978, the
       recognized representative of hourly employees at Hoover Dam, are
       currently meeting with management representatives in an
       encouraging attempt to implement coordinated bargaining for all
       hourly employees at the Lower Colorado Dams Project.  If
       coordinated bargaining is successful, it should eliminate the need
       for the Bureau (of Reclamation) to file a representation petition
       with the Department of Labor (Exh. 2(c)).
 
    28.  Following transmission of Mr. Spillers' June 7, 1978 letter to
 the ibew, Mr. Jensen, acting as labor relations officer, for the lower
 Colorado Region, contacted Mr. Nash, Labor Relations Officer for the
 Bureau of Reclamation, at least once a week for an undetermined period
 to relate problems encountered in holding open the April 21, 1978
 vacancy affected by the terms of the Memorandum of Understanding, and to
 inquire when Mr. Jensen could act to fill the vacancy in accordance with
 the Memorandum of Understanding (Stip. 6, Tr. 8-9).
 
    29.  By letter dated August 21, 1978, Mr. Charles H. Pillard,
 International President of the IBEW advised Mr. Spillers that he would
 not approve the Memorandum of Understanding (Exh. 2(c)).  /13/
 
    30.  By internal memorandum dated August 21, 1978, Mr. Spillers,
 informed Mr. John F. McKune, Director of Personnel, Office of the
 Secretary of Interior, of the circumstances surrounding his June 7, 1978
 transmission of the Memorandum of Understanding to the IBEW
 International President for approval, and noted the fact that copies of
 the correspondence had then been submitted to McKune.  Mr. Spillers
 requested that Mr. McKune's office approve the Memorandum of
 Understanding because, "(a)s a practical matter it can, and if necessary
 should be argued, that your approval is merely ministerial at this time
 as Section 15 (of Executive Order 11491) requirements have already
 triggered (Agency) approval" (Exh. 3(b)).  /14/
 
    31.  By letter dated August 25, 1978 Mr. John F. McKune, on behalf of
 the Office of the Secretary, Department of the Interior, advised Mr.
 Pillard that the Memorandum of Understanding had become operative by
 virtue of the provisions of Section 15 of Executive Order 11491.  The
 Department's position was stated as follows:
 
          It is the intent of the local parties to remove supervisory
       positions from representation by Local Union 640 through the
       reasonable process of attrition.  That is, as such positions
       became vacant, as one currently is, the new incumbent will no
       longer be in the bargaining unit.  Over a period of time, all such
       positions and incumbents will be excluded from representation by
       the local union (Stip. 6, Tr. 9, Exh. 2(e)).
 
    32.  On August 25, 1978, Mr. Nash first became aware of Mr. Pillard's
 August 21, 1978 disapproval of the Memorandum of Understanding, and
 after inquiring as to whether the Office of the Secretary had
 transmitted a reply to the IBEW, he was informed that Mr. McKune's
 August 25, 1978 letter to Mr. Pillard had been sent (Stip. 6, Tr. 9).
 
    33.  On August 25, 1978 Mr. Nash informed Mr. Jensen that the Office
 of the Secretary had approved the Memorandum of Understanding, and that
 it was permissible for Mr. Jensen to implement the Memorandum of
 Understanding at the Local level (Stip. 7, Tr. 9).
 
    34.  On August 27, 1978, Local management in the Lower Colorado
 Region promoted Mr. Armund J. Oswood, Jr., to the position of General
 Foreman (Electrical) at the Parker Dam Field Division, and removed him
 from the bargaining unit under authority reflected in the Memorandum of
 Understanding (Stip. 7, Tr. 9-10;  Exh. 3(c)).
 
    35.  On July 18, 1979, Mr. James A. Doran, International
 Representative of the IBEW, learned of Mr. Jensen's plans to remove a
 vacant Davis Dam Field Division General Foreman (Electrical) position
 from the bargaining unit on authority reflected in the Memorandum of
 Understanding reached early in 1978 by the Bureau of Reclamation and
 Local 640 (Exhs. 2(f), and 2(i)).
 
    36.  By letter dated July 31, 1979, Mr. Doran advised Mr. Jensen that
 the Memorandum of Understanding had no validity as it had never been
 approved by IBEW International President Pillard, and that Mr. Jensen
 had no right to remove the vacant Davis Dam Field Division supervisory
 position from the bargaining unit (Exh. 2(f)).
 
    37.  On August 14, 1979, Mr. V. B. Wilkinson, Project Manager, Lower
 Colorado Dams Project, reaffirmed the validity of the Memorandum of
 Understanding, and stated that it had become binding on the parties
 prior to Mr. Pillard's August 21, 1978 disapproval.  He stated:
 
          The Lower Colorado Dams Project intends to issue a vacancy
       announcement for the position of General Foreman, Electrician at
       Davis Dam.  This position is excluded from the bargaining unit,
       consistent with our negotiated Memorandum of Understanding with
       Local 640 (Exh. 2(g)).
 
    38.  On August 29, 1979 a Vacancy Notice was issued to advertise the
 position of General Foreman (Electrical) at the Davis Dam (Exh. 2(i)).
 
    39.  On October 21, 1979, Mr. William A. Morris was promoted to the
 vacant General Foreman (Electrical) position, and the position was
 removed from the bargaining unit (Exh. 2(j)).
 
    40.  On September 28, 1979, a charge was filed alleging the following
 facts as constituting unfair labor practices:  /15/
 
          (a) On August 14, 1979, Mr. V. B. Wilkinson, Project Manager,
       Lower Colorado Dams Project, informed the Charging Party that he
       was posting a vacancy for the position of General Foreman,
       Electrician, at Davis Dam.
 
          (b) Mr. Wilkinson cited the Memorandum of Understanding.
 
          (c) Since any changes to the collective bargaining agreement
       between the parties must be approved by both the President of the
       IBEW and the Office of the Secretary of the Interior, and the
       President of the IBEW has expressly withheld his approval of the
       Memorandum of Understanding, there is no valid authority for
       Project Manager Wilkinson's unilateral action.
 
          (d) Representation of certain levels of supervisory employees
       is a valuable "grandfathered right" of the IBEW in certain Bureau
       of Reclamation Agreements and can only be terminated by mutual
       agreement.
 
                        Discussion and Conclusions
 
    Counsel representing the Respondent argues that the provisions of
 Section 7118(a)(4)(A) of the Statute require that the complaint be
 dismissed because the alleged unfair labor practice occurred in August
 of 1978, or more than six months before the filing of the charge on
 September 28, 1979.  Counsel representing the General Counsel and the
 Charging Party disagree.  They contend that the charge alleges facts
 relating to the Respondent's continued enforcement of an illegal
 agreement (The Memorandum of Understanding);  that this pattern of
 conduct commenced as early as August 25, 1978, when the Office of the
 Secretary advised that the Memorandum of Understanding had become
 operative;  that this conduct continued thereafter to the date of
 issuance of the complaint;  and that the charge was timely because it
 was filed within six months of August 14, 1979, the last action of the
 Respondent in its continuing enforcement of the Memorandum of
 Understanding.  Accordingly, they rely upon Mr. V. B. Wilkinson's August
 14, 1979, notice to the Union that the Respondent "intends to issue a
 vacancy announcement for the position of General Foreman, Electrician at
 Davis-Dam" (Exhs. 1(a), 1(c), 1(g) and 2(g)).
 
    Section 7118(a)(4)(A) of the Statute provides:
 
          (4)(A) Except as provided in subparagraph (B) of this
       paragraph, no complaint shall be issued based on any alleged
       unfair labor practice which occurred more than 6 months before the
       filing of the charge with the Authority.  /16/
 
    It is clear from the charge filed on September 28, 1979, that the
 unfair labor practice set forth in the charge, and thereafter restated
 in the complaint, depends upon the establishment of a pattern of alleged
 unlawful conduct which occurred in August of 1978;  that is, on conduct
 which occurred more than six months before the filing of the charge.
 For example, the basis of the charge depends upon a showing that there
 was "no valid authority for Project Manager Wilkinson's (August 14,
 1979) action." It depends upon a showing that Mr. Pillard expressly
 withheld his approval of the Memorandum of Understanding by letter dated
 August 21, 1978;  and upon proof that the Union's representation of
 supervisory employees under the 1977 collective bargaining agreement was
 not affected by the Memorandum of Understanding relied upon by the
 Respondent.  Without proof in the areas outlined, separate proof of Mr.
 Wilkinson's August 14, 1979 notice (relied upon herein to avoid the
 restrictive provisions of Section 7118(a)(4)(A) would be innocuous.
 That is, the mere issuance of the notice would not represent the
 continuance of an unfair labor practice.  Here, there is a complete
 dependence upon events occurring outside the 6-month period to bring Mr.
 Wilkinson's August 14, 1979 notice into the ambit of the 6-month
 limitation.
 
    In the private sector, Section 10(b) of the National Labor Relations
 Act, 29 U.S.C. 160(b), provides a similar 6-month statute of
 limitations.  For purposes of decision in this case, Section 10(b) is
 nearly identical to the provisions of Section 7118(a)(4)(A).  In Local
 Lodge 1424 v. N.L.R.B., 362 U.S. 822 (1960), a case construing Section
 10(b), /17/ the United States Supreme Court supplied the following
 language to guide in determining whether evidence of events occurring
 more than six months before the filing of an unfair labor practice
 charge may be used to establish an unfair labor practice:
 
          It is doubtless true that Sec. 10(b) does not prevent all use
       of evidence relating to events transpiring more than six months
       before the filing and service of an unfair labor practice charge.
       However, in applying rules of evidence as to the admissibility of
       past events, due regard for the purposes of Sec. 10(b) requires
       that two different kinds of situations be distinguished.  The
       first is one where occurrences within the six-month limitations
       period in and of themselves may constitute, as a substantive
       matter, unfair labor practices.  There, earlier events may be
       utilized to shed light on the true character of matters occurring
       within the limitations period;  and for that purpose Sec. 10(b)
       ordinarily does not bar such evidentiary use of anterior events.
       The second situation is that where conduct occurring within the
       limitations period can be charged to be an unfair labor practice
       only through reliance on an earlier unfair labor practice.  There
       the use of the earlier unfair labor practice is not merely
       'evidentiary,' since it does not simply lay bare a putative
       current unfair labor practice.  Rather, it serves to cloak with
       illegality that which was otherwise lawful.  And where a complaint
       based upon that earlier event is time-barred, to permit the event
       itself to be so used in effect results in reviving a legally
       defunct unfair labor practice.
 
    This case falls within the purview of the second factual illustration
 described by the Court.  /18/ Here the unlawful conduct condemned in the
 charge and the complaint concerns the continued enforcement of the
 Memorandum of Understanding, as evidenced by Mr. Wilkinson's August 14,
 1979 letter to the Union.  However, the Memorandum of Understanding is
 entirely benign.  It would not be possible to cloak this agreement with
 illegality without first making reference to events occurring prior to
 the 6-month period, that is events occurring in August of 1978.  This
 precise factual picture was referred to by the Supreme Court in Local
 Lodge 1424 in the following terms:
 
          Where, as here, a collective bargaining agreement and its
       enforcement are both perfectly lawful on the face of things and an
       unfair labor practice cannot be made out except by reliance on the
       fact of the agreement's original unlawful execution, an event
       which, because of limitations, cannot itself be made the subject
       of an unfair labor practice complaint, we think that permitting
       resort to the principle that Sec. 10(b) is not a rule of evidence,
       in order to convert what is otherwise legal into something
       illegal, would vitiate the policies underlying that section.
       These policies are to bar litigation over past events 'after
       records have been destroyed, witnesses have gone elsewhere, and
       recollections of the events in question have become dim and
       confused,' H.R. Rep. No. 245, 80th Cong., 1st Sess., p. 40, and of
       course to stabilize existing bargaining relationships.
 
                                .  .  .  .
 
          In any real sense, then, the complaints in this case are 'based
       upon' the unlawful execution of the agreement, for its
       enforcement, though continuing, is a continuing violation solely
       by reason of circumstances existing only at the date of execution
       . . .. Put another way, if the sec. 10(B) proviso is to be given
       effect, the enforcement, as distinguished from the execution, of
       such an agreement as this constitutes a suable unfair labor
       practice only for six months following the making of the
       agreement.  (Footnotes omitted).
 
    Counsel representing the General Counsel cites Internal Revenue
 Service and IRS Richmond District Office, 3 FLRA No. 3 (1980), 3 FLRA
 18, as precedent for a finding that the charge herein was filed in a
 timely manner.  However, that case involved alleged violations of
 Executive Order 11491 Sections 19(a)(1), (2) and (6) based upon the
 monitoring of a union steward's telephone calls.  Administrative Law
 Judge Garvin Lee Oliver rejected a contention that the telephone
 monitoring commenced more than six months before the filing of the
 charge.  However, his finding reflects that the copying of messages
 (acts constituting unfair labor practices), occurred within the 6-month
 period of limitations.  Further, it was clear from the decision that
 proof of the unfair labor practices alleged would not have depended upon
 proof of events occurring prior to the commencement of the period of
 limitations.  Because of these circumstances the charge underlying the
 complaint was deemed to have been filed in a timely manner.  /19/
 
    An analysis of the record in this case reflects a second basis for
 dismissal of the complaint.  As noted the complaint essentially involves
 a dispute as to the legal effect to be accorded the Memorandum of
 Understanding.  That is, it is the implementation of the provisions of
 the Memorandum of Understanding by the Respondent which gives rise to
 the alleged unfair labor practice.  It is not possible to determine
 issues relating to this implementation without interpreting and applying
 the provisions of the collective bargaining agreement.
 
    The parties did stipulate that the collective bargaining agreement
 required any amendments or renewals to be approved by the IBEW, /20/
 that the Memorandum of Understanding was considered to be an amendment
 of the agreement because it provided for the removal of supervisory
 employees from the bargaining unit described in the agreement, and that
 by letter dated August 21, 1978 the IBEW International President refused
 to approve the Memorandum of Understanding.  However, these stipulations
 do not resolve key questions concerning whether or not the Memorandum of
 Understanding was a binding amendment of the collective bargaining
 agreement under the terms of that agreement.
 
    A persuasive argument may be interposed in opposition to the
 contention that the IBEW did not approve the Memorandum of
 Understanding.  The Memorandum of Understanding stemmed in part from the
 Respondent's agreement not to file an RA petition, and Respondent's
 actual forbearance in this regard.  The parties stipulated that since
 March 16, 1978, the Respondent has refrained from filing an RA petition.
  It also appeared that the Respondent engaged in coordinated bargaining
 with the Union, and the American Federation of Government Employees as a
 result of the Union's agreeing to the terms of the Memorandum of
 Understanding.  Such coordinated bargaining was apparently allowed to
 continue with IBEW's knowledge.
 
    The IBEW became fully aware of the reliance being placed upon the
 consideration underlying the Memorandum of Understanding on or about
 June 7, 1978, when Mr. Spillers transmitted to the IBEW, copies of the
 Memorandum of Understanding and explained how it had evolved at the
 Local level.  A period of approximately 75 days elapsed before the IBEW
 apprised the Respondent of its disapproval.  /21/ It may be argued that
 acceptance of benefits from the Respondent's agreement not to file an RA
 petition;  Respondent's participation in coordinated bargaining at the
 Local level;  and the long period of inaction of the IBEW under the
 circumstances outlined, constituted acquiescence on the part of the IBEW
 with respect to the provisions of the Memorandum of Understanding, or
 approval of the Memorandum of Understanding by the IBEW within the
 meaning of the collective bargaining agreement.
 
    It is well settled that alleged unfair labor practices which involve
 differing and arguable interpretations of a negotiated agreement, as
 distinguished from alleged actions which constitute clear and patent
 breaches of a negotiated agreement, are not deemed to be violative of
 the Statute.  In such cases the aggrieved party's remedy lies within the
 grievance and arbitration procedures in the negotiated agreement rather
 than through unfair labor practice procedures.  Iowa National Guard and
 National Guard Bureau, 8 FLRA No. 101 (1982), 8 FLRA 504;  Division of
 Military and Naval Affairs, State of New York, Albany, New York, 8 FLRA
 No. 71 (1982), 8 FLRA 309;  U.S. Patent and Trademark Office, 3 FLRA No.
 123 (1980), 3 FLRA 823;  Oklahoma City Air Logistics Center, Tinker Air
 Force Base, Oklahoma, 3 FLRA No. 82 (1980), 3 FLRA 11;  Department of
 the Navy, Naval Weapons Station, Concord, California, 1 FLRA No. 13
 (1979), 1 FLRA 132.
 
    Here supervisors were included within the unit of recognition solely
 by reason of collective bargaining agreements dating back to at least
 1951.  /22/ The gravamen of the complaint lies in the contention that
 the Respondent breached those portions of the collective bargaining
 agreement which included these supervisory employees within the unit of
 recognition.  The record does not reflect that the Respondent's conduct
 constituted a clear and patent breach of these portions of the
 agreement.  On the contrary, it is at least arguable, despite the IBEW's
 refusal to sign the Memorandum of Understanding, that the 1977
 collective bargaining agreement was effectively amended by the
 Memorandum of Understanding in accordance with procedures reasonably
 contemplated by the parties.
 
    Upon the basis of the foregoing, it is recommended that the Authority
 issue the following Order pursuant to 5 C.F.R. 2423.29(c).
 
                                   ORDER
 
    IT IS HEREBY ORDERED that the complaint in Case No. 9-CA-174, be, and
 it hereby is, dismissed.
 
                                       LOUIS SCALZO
                                       Administrative Law Judge
 
 Dated:  August 12, 1982
         Washington, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ This case was initially transferred directly to the Authority
 pursuant to section 2429.1 of the Authority's Rules and Regulations.  On
 June 11, 1982, the Authority remanded the case to the Judge for a
 Decision, pursuant to section 2423.26(a) of the Authority's Rules and
 Regulations.
 
 
    /2/ In this regard, the House Committee Report accompanying H.R.
 11280 stated with respect to section 7118(a)(4), which was ultimately
 enacted and signed into law without change, as follows:
 
          Subsection (a)(4) prohibits the issuance of a complaint based
       upon an unfair labor practice which occurred more than 6 months
       before the filing of the charge with the Authority unless the
       person aggrieved was prevented from filing the charge because the
       agency or labor organization against whom the charge is made
       failed to perform a duty owed to the aggrieved person, or due to
       concealment.  In addition, the concealment or failure to perform a
       duty must have prevented the discovery of the unfair labor
       practice within 6 months of its occurrence.
 
    H.R. Rep. No. 95-1403, 95th Cong., 2d Sess., at 52-53 (1978),
 reprinted in Legislative History of the Federal Service Labor-Management
 Relations Statute, Title VII of the Civil Service Reform Act of 1978, at
 698-699 (1979).
 
 
    /3/ To the same effect in the private sector under section 10(b) of
 the National Labor Relations Act, see Local Lodge No. 1424,
 International Association of Machinists AFL-CIO v. National Labor
 Relations Board, 362 U.S. 822 (1960).
 
 
    /4/ The Water and Power Resources Service was formerly known as the
 Bureau of Reclamation, and was identified as such in the complaint.
 However, the parties appropriately identified the Bureau of Reclamation
 as the Water and Power Resources Service in briefs submitted to the
 Authority.  The complaint is deemed to have been amended in this regard.
 
 
    /5/ The International Brotherhood of Electrical Workers has been
 referred to herein as the "IBEW" when reference is being made to the
 International Union, and the designation "Local 640" has been utilized
 to designate Local 640, as separate and distinct from the IBEW.
 
 
    /6/ If otherwise unjustified, such conduct would constitute a refusal
 to accord recognition to a labor organization lawfully selected to
 represent bargaining unit employees.  A refusal to accord recognition,
 if established by a preponderance of the evidence, would be an unfair
 labor practice within the meaning of Sections 7116(a)(1), and (5) of the
 Statute.  Defense Logistics Agency, 5 FLRA No. 21 (1981).
 
 
    /7/ A transcript of stipulations reached by the parties in this case
 refers to General Counsel Exhibits 1(a) through 1(h), Joint Exhibits 1
 through 10, and Respondent Exhibits 1 through 3.  These were renumbered
 with a single sequence of numbers and letters when the Regional Director
 submitted the stipulated record to the Authority under the provisions of
 5 C.F.R. 2429.1.  The following table reflects the change made:  (TABLE
 OMITTED)
 
 
    /8/ References are to enumerated stipulations reflected in the
 transcript included as part of the record.
 
 
    /9/ The Project, identified as the Parker-Davis Project in the
 agreement, later became a part of the Bureau of Reclamation's Lower
 Colorado Dams Project.
 
 
    /10/ At Tr. 6:19 the transcript mistakenly reflects the word
 "remained," rather than "renamed."
 
 
    /11/ Counsel for the General Counsel noted that the transcript record
 of stipulations mistakenly refers to "a lot of success," rather that "a
 lack of success" (G.C. Brief at 2, footnote 2).  Respondent's counsel
 also noted the error (R. Brief at footnote 2).
 
 
    /12/ The Index and Description of Exhibits mistakenly refers to a
 "Mr. Roth" as signing on behalf of Local 640.
 
 
    /13/ Mr. Pillard's disapproval was based in part on the fact that
 issues involving Local 640's representation of supervisory employees
 were posed in Department of the Interior, Bureau of Reclamation, Yuma
 Projects Office, Yuma, Arizona, Case No. 72-7371 (RO).  This
 representation case was then pending before the Assistant Secretary for
 Labor Management Relations under Executive Order 11491.  The National
 Federation of Federal Employees, Local 1487 (NFFE) sought an election in
 a unit of all Wage Board employees in the trades and crafts employed by
 the Yuma Projects Office, excluding supervisors as defined in Executive
 Order 11491.  On November 22, 1978, the Assistant Secretary found the
 proposed unit appropriate, but recognized Local 640's right to represent
 certain supervisory employees and non-supervisory employees at the Yuma
 Projects Office, as the IBEW unit had historically by agreement included
 supervisory employees.
 
    In allowing supervisory employees to be a part of the bargaining unit
 despite the provisions of Section 2(c) of Executive Order 11491, the
 Assistant Secretary relied upon an August 9, 1978 Interpretation of the
 Federal Labor Relations Council (FLRC No. 78P-2, 6 FLRC 1315), which
 held that Section 24(1) of Executive Order 11491 maintains the validity
 of otherwise lawful provisions in an agreement entered into before the
 effective date of Executive Order 10988 (January 17, 1962), if such
 agreement has been renewed or continued in substance after the effective
 date of Executive Order 10988, notwithstanding any inconsistency of such
 provision with limitations or proscriptions imposed by Executive Order
 11491.  The Assistant Secretary concluded that NFFE's petition
 constituted an appropriate attempt to sever a unit of nonsupervisory
 employees from the unit exclusively represented by IBEW;  that the only
 question was whether such employees wished to be separately represented
 by NFFE;  and that if a majority of the voting nonsupervisory employees
 chose the IBEW as their representative, the existing unit of supervisory
 and nonsupervisory employees would continue, whereas if a majority of
 the voting nonsupervisory employees chose NFFE as their exclusive
 representative, such employees would be severed from the existing IBEW
 unit, and the NFFE would be certified as their exclusive representative
 A/SLMR No. 1151 (1978), 8 A/SLMR 1246.
 
    NFFE subsequently won the election and thereafter was certified as
 the exclusive representative of the nonsupervisory unit found
 appropriate.  IBEW appealed to the Authority as the Federal Service
 Labor Management Relations Statute had been enacted during the interim
 period.  It was contended that the NFFE petition should have been
 dismissed.  The petition for review was denied.  1 FLRA No. 119
 (September 28, 1979), 1 FLRA 1050.
 
    In light of principles outlined in Section 15, of Executive Order
 10988;  Section 24(1) of Executive Order 11491;  the Federal Labor
 Relations Council's August 9, 1978, Interpretation;  and the results
 reached in Department of the Interior, Bureau of Reclamation, Yuma
 Projects Office, Yuma, Arizona, supra, it is abundantly clear that
 inclusion of supervisory employees in the unit of recognition was
 appropriate, and further that the continuation of this policy and
 practice depended entirely upon the continuance of contractual
 provisions providing for the inclusion of supervisors.  This was a
 contractual issue of appropriate concern to the parties, as distinct
 from authority vested in the Assistant Secretary to determine the
 composition of bargaining units.
 
 
    /14/ On August 18, 1978, a draft of a letter taking this position was
 prepared by Mr. Nash for Mr. McKune's signature.  It was forwarded to
 Mr. McKune with Mr. Spillers' August 21, 1978 memorandum (Stip. 6, Tr.
 8-9;  Exh. 3(b)).
 
 
    /15/ The September 28, 1979 charge alleged violations of Sections
 7116(a)(1), (2) and (5) of the Statute.  The basis of an amended charge
 dated April 24, 1980, was identical to that utilized in the September
 28th charge;  however the charge dated April 24, 1980 omits reference to
 Section 7116(a)(2).
 
 
    /16/ The provisions of subparagraph B do not apply to the facts of
 this case.
 
 
    /17/ This case, popularly known as the Bryan Manufacturing Company
 case, involved an unfair labor practice complaint predicated on the
 enforcement and maintenance of a union-shop contract that was executed
 at a time when the union did not represent a majority of the employees.
 The unlawful execution of the contract occurred outside the 6-month
 period of limitations.
 
 
    /18/ Counsel representing the General Counsel and the Charging Party
 argue that the facts of this case fall within the first illustration.
 For reasons stated herein this contention is rejected.
 
 
    /19/ The complaint was subsequently dismissed on other grounds.
 
 
    /20/ The specific procedure for effecting such approval was not
 stipulated, and it is not clearly described in the collective bargaining
 agreement.  See Exh. 2(c).
 
 
    /21/ The parties stipulated that as early as April 3, 1978, IBEW
 representatives received copies of the Memorandum of Understanding from
 the Respondent, together with a briefing, and a request that approval of
 the IBEW be expedited.  It could also be argued that the IBEW, through
 Local 640 representatives became aware of Local 640's March 17, 1978
 agreement to enter