16:0182(30)CA - HHS, FDA, Region II, New York Regional Laboratory and AFGE Local 2637 -- 1984 FLRAdec CA



[ v16 p182 ]
16:0182(30)CA
The decision of the Authority follows:


 16 FLRA No. 30
 
 DEPARTMENT OF HEALTH AND
 HUMAN SERVICES, FOOD AND
 DRUG ADMINISTRATION,
 REGION II, NEW YORK REGIONAL
 LABORATORY
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2637
 Charging Party
 
                                            Case Nos. 12-CA-20209
                                                      12-CA-20210
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 certain unfair labor practices and recommending that it be ordered to
 cease and desist therefrom and take certain affirmative action.  The
 Respondent filed timely exceptions to the Judge's Decision and the
 General Counsel filed a response to the Respondent's exceptions.
 
    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, /1/ conclusions /2/ and Recommended Order.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and Section 7118 of the Statute, the
 Authority hereby orders that the Department of Health and Human
 Services, Food and Drug Administration, Region II, New York Regional
 Laboratory, shall:
 
    1.  Cease and desist from:
 
          (a) Rejecting or failing to accept Joseph McCallion, or any
       other representative designated by the American Federation of
       Government Employees, Local 2637, AFL-CIO as an observer and
       member of any Merit Training Panel which may be convened to rate
       applicants for training under the New York Regional Laboratory
       Training Plan.
 
          (b) 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 Statute:
 
          (a) Accept and permit Joseph McCallion, or any other
       representative designated by the American Federation of Government
       Employees, Local 2637, AFL-CIO, to act as an observer and member
       of any Merit Training Panel which may be convened to rate
       applicants for training under the New York Regional Laboratory
       Training Plan.
 
          (b) Post at its facility at New York Regional Laboratory, New
       York, N.Y., copies of the attached Notice on forms to be furnished
       by the Federal Labor Relations Authority.  Upon receipt of such
       forms they shall be signed by the Director of the New York
       Regional Laboratory, or his designee, and shall be posted 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 I, 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., October 2, 1984
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, 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 reject or fail to accept Joseph McCallion, or any other
 representative designated by the American Federation of Government
 Employees, AFL-CIO, Local 2637, as an observer and member of any Merit
 Training Panel which may be convened to rate applicants for training
 under the New York Regional Laboratory Training Plan.
 
    WE WILL NOT in any like or related manner interfere with, restrain or
 coerce employees in the exercise of their rights assured by the Federal
 Service Labor-Management Relations Statute.
 
    WE WILL accept and permit Joseph McCallion, or any other
 representative designated by the American Federation of Government
 Employees, AFL-CIO, Local 2637, to act as an observer and member of any
 Merit Training Panel which may be convened to rate applicants for
 training under the New York Regional Laboratory Training Plan.
                                       (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 I, Federal Labor Relations Authority whose address is:
 441 Stuart Street, 9th Floor, Boston, MA 02116 and whose telephone
 number is:  (617) 223-0920.
 
 
 
 
 --------------- ALJ$ Decision follows -------------------
 
    DEPARTMENT OF HEALTH AND HUMAN SERVICES
    FOOD AND DRUG ADMINISTRATION REGION II
    NEW YORK REGIONAL LABORATORY
                                Respondent
 
    and
 
    AMERICAN FEDERATION OF GOVERNMENT
    EMPLOYEES, LOCAL 2637
                              Charging Party
 
                                       Case Nos. 12-CA-20209
                                                 12-CA-20210
 
    Susan Cohen DeStefano, Esq.
    George Borg
    For the Respondent
 
    Marilyn Z. Roth, Esq.
    For the General Counsel
 
    Before:  WILLIAM NAIMARK
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    Pursuant to an Order Consolidating Cases, First Amended Complaint and
 Notice of Hearing issued on July 21, 1982 by the Regional Director for
 the Federal Labor Relations Authority, Boston, Massachusetts Region, a
 hearing was held before the undersigned on December 16, 1982 at New
 York, N.Y.
 
    This proceeding arose under the Federal Service Labor-Management
 Relations Statute (herein called the Statute).  It is based on charges
 filed on January 25, 1982 in Case No. 2-CA-20209 and Case No. 2-CA-20210
 by American Federation of Government Employees, AFL-CIO, Local 2637
 (herein called the Union) /3/ against Department of Health and Human
 Services, Food and Drug Administration Region II, New York Regional
 Laboratory (herein called Respondent).
 
    The Complaint alleged, in substance, that on or about January 4,
 1982, Respondent refused to bargain in good faith with American
 Federation of Government Employees, AFL-CIO, Council 242 (herein called
 AFGE Council 242), the exclusive bargaining representative, by failing
 and refusing to recognize Joseph McCallion as the designated Union
 observer for a Merit Training Panel to be held on January 5, 1982-- all
 in violation of section 7116(a)(1) and (5) of the Statute.
 
    Respondent's answer, dated July 29, 1982, denies its refusal to
 bargain as alleged in the complaint.  It sets forth various affirmative
 defenses, hereinafter alluded to, and denied the commission of any
 unfair labor practices.
 
    All parties were represented at the hearing.  Each was afforded full
 opportunity to be heard, to adduce evidence, and to examine as well as
 cross-examine witnesses.  Thereafter, briefs were filed with the
 undersigned which have been duly considered.
 
    Upon the entire record, from my observation of the witness and their
 demeanor, and from all of the testimony and evidence adduced at the
 hearing, I make the following findings and conclusions:
 
                             Findings of Fact
 
    1.  At all times material herein AFGE Council 242 has been and still
 is the certified exclusive bargaining representative of all professional
 and non-professional employees of the New York, N.Y., Newark, N.J. and
 Buffalo, N.Y. District Offices of the Food and Drug Administration with
 specified exclusions.
 
    2.  At all times since November 26, 1974 the Food and Drug
 Administration, New York District and the Union herein have been parties
 to a collective bargaining agreement covering the unit of employees
 heretofore described and set forth above.  The said 1974 agreement,
 pursuant to a Memorandum of Agreement On Implementation of the
 Reorganization of FDA Region II between Respondent and the Union, dated
 April 23, 1982, continues in effect pending a superseding regional
 collective bargaining agreement.
 
    3.  In 1979 the Science Branch of the New York District, /4/ Food and
 Drug Administration, Region II, was reassigned to the Regional Food and
 Drug Director.  It was renamed the New York Regional Laboratory.
 Further, the latter is deemed the organizational equivalent of the other
 FDA Districts in Region II.  The Director of the Laboratory, George H.
 Boone, who was formerly head of the Science Branch, occupies the same
 management status as other District Directors.  /5/
 
    4.  A dispute has existed since June 30, 1981 between the Union and
 Respondent as to the number of Union officials who would be recognized
 by management as representatives of employees.  At a meeting on that
 date between Boone and Sidney Morse, President of the Union as well as
 AFGE Council 242, Morse stated there were 13 union officers in Local
 2637.  Boone reminded the Union President that under the contract nine
 union officials would be recognized as employee representatives.  /6/
 
    Memos to this effect, which referred to Article IX of the collective
 bargaining agreement restricting the number to nine, was written from
 Boone to Morse on July 10, 1981 and November 2, 1981.  The Director also
 requested that the Union submit a list of nine officials designated by
 Morse so they could be recognized for the purposes of granting official
 time for representational activity.  Morse replied in a memo dated
 November 9, 1981 seeking clarification re the unit involved, and Boone
 wrote the Union President on November 10, 1981 wherein he specified the
 unit was referenced in Article III of the bargaining agreement.  This
 request for nine official representatives was not fulfilled by the
 Union.  In a memo dated December 11, 1981 Boone advised Morse that, due
 to the pendency of the dispute, management would not recognize Union
 officials other than its president for the purpose of granting official
 time.  /7/
 
    5.  In connection with Merit Training Program for employees, a Merit
 Training Panel has been established by Respondent for many years.  This
 involves a panel of raters who evaluate the applications of those
 individuals who desire to enter a particular training program.  Points
 are assigned based on the answers to questions and listings prepared.
 The said list, together with the applications, are given to the
 selecting official who makes the decision as to which employees will be
 trained.  It is then sent to management.
 
    6.  The Merit Training Panel is composed of two raters who are
 appointed by management, a representative from the training committee
 who reads the application, an EEO observer, and a Union observer.  In
 addition to rating individual applicants, the observer makes sure the
 procedure follows the Plan and that certain forms are signed.
 
    7.  Respondent issued on December 7, 1981 a Training Course
 Announcement for "Research Techniques." This course would involve 10
 chemists or entomologists and 5 microbiologists and would be held during
 the period January 18-22, 1982.
 
    8.  Under date of December 24, 1981 Ted M. Hopes, Director, Chemistry
 Branch of Respondent, wrote Morse that a panel would meet on January 5,
 1982 to consider applications for the Research Techniques Course.  Hopes
 requested that the Union President send him the name of a Union
 representative as soon as possible.  /8/ Since he was occupied with
 other matters, Morse turned the request over to James Nelson,
 vice-president of the Union.  /9/
 
    9.  Whereupon Nelson, under date of December 29, 1981, sent a memo to
 Hopes naming Joseph McCallion as the Union representative to serve on
 the panel scheduled to meet on January 5, 1982.  A copy thereof was
 given to Morse by Nelson.
 
    10.  Hopes sent a memo, dated January 4, 1982, to Morse wherein he
 commented that management had not received a response from the Union
 President with respect to naming a union representative for the Merit
 Training Plan Panel.  He reiterated that the panel would meet on January
 5, 1982 to consider applications for the Research Techniques Course, and
 Hopes stated that if a name was not received by close-of-business on
 January 4, 1982, the Panel would proceed without a union representative.
 
    11.  On the same day, January 4, 1982, Hopes sent Nelson a memo
 returning the memo which Nelson had sent him.  The Director also stated
 that "due to the pendency of the dispute about the number of Union
 officials to be recognized by Management, Management is not recognizing
 Union officials other than the Union President."
 
    12.  Morse replied to Hopes by a memo dated January 4, 1982 wherein
 he attached copies of the memo which he sent to Hopes on December 24,
 1981, listing the union officers, as well as Nelson's memo of December
 29, 1981 to the Director.  The Union President also reminded Hopes that
 there must be a union representative on the Panel.
 
    13.  On the morning of January 5, 1982 Boone asked James Yager,
 chairman of the Training Panel, if the Panel expected to meet that day
 for the Research Technique course.  Upon being told it would be
 convened, Boone told Yager to delay it since there was a problem with
 the Union.  Yager spoke to Hopes who gave him the names of the raters,
 but said there was no Union observer.  At 10:50 a.m. on that day
 McCallion approached the chairman of the Program and said that he was
 the Union observer for the Panel.
 
    14.  Upon being so informed by the Union representative, Yager
 related this information to Boone.  The latter replied that there were
 problems with McCallion sitting on the Panel;  that Yager could tell
 McCallion he is not recognized as an observer;  that Morse knows what to
 do to have a representative on the Panel.  Whereupon Boone advised Yager
 to proceed with the Panel.  Further, the chairman then spoke to
 McCallion, told him that management didn't recognize him as a union
 observer, and he should not attend the Panel.
 
    15.  The Training Panel was held on January 5, 1982 without a Union
 observer.  Eligible candidates were certified, after routing procedures
 were followed, as eligible for the Research Techniques Course.
 
    16.  Hopes testified that since 1958 the Union has selected an
 observer for the Merit Training Panel on about 10-15 occasion.  The
 customary procedure was that Hopes asked Morse for the name of the Union
 observer and the Union President would submit same.  The Director
 further testified that after January 22, 1982 the Respondent recognized
 nine Union officials for the laboratory;  that from thence on management
 accepted designations from individuals other than Morse to serve as
 Union observer on the Merit Training Panel.
 
                                Conclusions
 
    The primary issue for consideration herein may be stated as follows:
 whether Respondent's refusal to accept, as a Union observer or member on
 its Merit Training Panel, the individual designated by the Union
 vice-president was violative of the Statute.
 
    While no case directly in point has been called to my attention, the
 Authority has had occasion to consider cases wherein the representative
 status of union designees has been called into question.  In American
 Federation of Government Employees, AFL-CIO, and U.S. Air Force, Air
 Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 4 FLRA
 No. 39 (1980), the Activity proposed, inter alia, that the union
 designate its representatives from prescribed organizational levels when
 dealing with management as to certain functions.  The Union refused to
 bargain as to such proposal, and the Authority held such refusal was not
 in violation of Section 7116(b)(5) and (1) of the Statute.  It was
 declared that the proposal infringed upon the union's prerogative to
 designate its own representative;  that it is within the discretion of
 both agency management and a labor organization to designate their
 respective representatives when fulfilling their responsibilities under
 the Statute.
 
    Further, where an agency denied a union official access to the
 premises it was held in Philadelphia Naval Shipyard, 4 FLRA No. 38
 (1980) that such conduct ran afoul of Section 7116(a)(1) and (5) of the
 Statute.  Such denial by management thwarted the bargaining process
 since the official was bent upon engaging in representative duties at
 the time.  Management, it was determined, had no right to determine who
 would act as the union's representative, and its attempt to do so was an
 intrusion into the internal affairs of the bargaining agent and improper
 interference.
 
    Respondent maintains that, in refusing to accept McCallion as the
 Union designee or observer on the Training Panel, it did not interfere
 with any rights of the Union nor violate the Statute.  It contends that
 management has always obtained a designation from the Union President
 and accepted that designee.  However, the employer inside it is entitled
 to reject any observer, appointed by someone other than the President.
 
    Its defense is pastured on two principal arguments.  /10/ Firstly,
 Respondent maintains that it was not required to bargain at the District
 office level since the bargaining agent, AFGE Council 242, represented a
 region-wide unit.  It argues that its obligation is to bargain only on a
 regional level.  This argument is rejected.  It is true that where a
 union is certified for a consolidated unit an obligation to bargain may
 be confined to the level of recognition in lieu of smaller units now
 included in the consolidated unit.  See Department of Health and Human
 Services, Social Security Administration, 6 FLRA No. 33 (1981).
 However, the parties, as the Authority declared in the cited case, may
 agree to authorize negotiations at a lower level.  In the case at bar
 the Union and Respondent have been parties to a collective bargaining
 agreement since 1974 covering these District employees.  Moreover, their
 Memorandum of Agreement, executed on April 23, 1982, recited that the
 1974 bargaining contract continue in effect until superceded by a
 regional collective bargaining agreement.  Thus, Respondent has
 recognized an obligation to bargain on the District level.  /11/
 Further, the Authority has held that where lower level management
 initiates action affecting conditions of employment thereat, it is
 responsible therefor even when exclusive recognition is at a higher
 level.  Department of Health and Human Services, Social Security
 Administration, Office of Program Operations and Field Operations,
 Sutter District Office, San Francisco, California, 5 FLRA No. 63 (1981).
 
    It is also contended by the employer herein that its refusal to
 accept McCallion was part and parcel of the main dispute with the Union
 re the number of employees who would be recognized as Union
 representatives and accorded official time.  Management avers this was a
 matter of contract interpretation, so that its conduct in refusing to
 accept the observer selected by vice-president Nelson could not be
 resolved in an unfair labor practice proceeding.  In this respect,
 Respondent adverts to Article 9, Section 2 of the Agreement between the
 parties which provided that the employer would recognize nine union
 officials.  Recognition of McCallion, it is claimed, would have meant
 that more than nine Union officials were being recognized, and the
 employer was thus merely conforming to the collective bargaining
 agreement.  Such conformance, it insists, cannot be deemed a refusal to
 bargain or interference with the Union.
 
    In respect to the foregoing argument, I am persuaded that the
 language in Article 9, Section 2 of the bargaining contract was not
 intended to delimit the selection or designation of a Union observer to
 sit on the Training Panel.  A somewhat similar situation existed in Utah
 Army National Guard, Salt Lake City, Utah, A/SLMR No. 966 (1978).  In
 that case the parties executed "Ground Rules for Negotiations" as a
 preliminary agreement to this basic contract.  The Ground Rules
 provided, inter alia, that five members of the Union negotiating team
 were employees of the National Guard.  Management refused to recognize a
 former employee as the union's chief negotiator.  It was held that the
 provision in the ground rules was not intended to limit the composition
 of the negotiating committee;  that by agreeing to such language the
 union did not waive its right to select a union representative for
 negotiating purposes.  The Assistant Secretary found that such refusal
 violated Section 19(a)(1) and (6) of Executive Order 11491, as amended.
 /12/
 
    In the case at bar I am constrained to conclude that, while a dispute
 may have existed between the parties as to the number of union
 representatives to be recognized by the employer, it did not entitle
 Respondent to reject the Union's designee as a panel member.  The
 rejection was predicated on the fact that the Union President Morse had
 not selected designee McCallion.  But the latter had been sent as a duly
 chosen representative, and authorized by Morse when the latter told
 Vice-President Nelson to make the selection.  Denial of recognition to
 such representative is a rejection of the collective bargaining process
 and an infringement upon the Union's right to choose its own
 representatives.  Despite the controversy as to the number of Union
 representatives which would be recognized by Respondent, management may
 not justifiably decide which employees will be the Union observer on the
 Training Panel.  That dispute does not encompass the present issue, and
 I do not agree that the matter for determination herein must be resolved
 as part of such dispute.  Moreover, the language in Article 9 of the
 contract does not spell out a clear and unmistakable waiver on the part
 of the Union as to naming its representative for the Training Panel.
 See Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA
 No. 2 (1981);  Department of Health and Human Services, Social Security
 Administration, Great Lakes Program Service Center, Chicago, Illinois,
 Case No. 5-CA-1204, Administrative Law Judge Decisions Report No. 22,
 March 10, 1983.
 
    Respondent also maintains that the refusal to accept the observer
 designated by the Union only occurred once, and that since January 5,
 1982 it has accepted the representatives appointed by other persons
 other than the Union President.  Accordingly, it insists there has been
 no continuing violation, and the occurrence was de minimis.  I disagree.
  Respondent's conduct was not trivial in nature, and the fact that it
 was not repeated does not militate against finding the same to be
 violative of the Statute.  The Authority has held that a refusal to
 allow a duly appointed representative of the union's negotiating
 committee to attend a pre-negotiation meeting was a serious violation;
 that a subsequent reversal of management's decision, allowing him to
 attend the meeting, did not render the earlier refusal moot or de
 minimis, Veterans Administration, Veterans Administration Center,
 Laboratory Service, Temple, Texas, 2 FLRA No. 117 (1980).  Likewise, in
 the case at bar, Respondent's subsequent acceptance of a Union observer
 from someone other than Morse does not cure the initial violation or
 render it moot.
 
    In sum, I conclude Respondent unjustifiably rejected Joseph
 McCallion, the Union designee, as the Union representative to the Merit
 Training Panel which met on January 5, 1982.  Its action in that regard
 was a rejection of the performance of its allegation to bargain
 collectively as set forth in Section 7103(a)(12) of the Statute.
 Further, it interfered with the right of the Union to select its own
 representative to said panel.  This constituted a clear interference,
 restraint or coercion of the rights assured employees.  See Veterans
 Administration, et. al. supra.  Respondent's action on January 5, 1982
 constituted a violation of Section 7116(a)(1) and (5) of the Statute.
 
    Having concluded that Respondent violated the Statute as aforesaid, I
 recommend that the Authority issue the following:
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and Section 7118 of the Statute, the
 Authority hereby ordered that the Department of Health and Human
 Services, Food and Drug Administration Region II, New York Regional
 Laboratory, shall:
 
    1.  Cease and desist from:
 
          (a) Rejecting or failing to accept Joseph McCallion, or any
       other representative provided by the American Federation of
       Government Employees, Local 2637, as an observer and member of any
       Merit Training Panel which may be convened to rate applicants for
       training under the New York Regional Laboratory Training Plan.
 
          (b) 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:
 
          (a) Accept and permit Joseph McCallion, or any other
       representative provided by the American Federation of Government
       Employees, Local 2637, to act as an observer and member of any
       Merit Training Panel which may be convened to rate applicants for
       training under the New York Regional Laboratory Training Plan.
 
          (b) Post at its facility at New York Regional Laboratory, New
       York, N.Y., copies of the attached notice marked "Appendix" on
       forms to be furnished by the Federal Labor Relations Authority.
       Upon receipt of such forms they shall be signed by the Director of
       the New York Regional Laboratory, and they shall be posted for 60
       consecutive days thereafter, in conspicuous places, including all
       places where notices to employees are customarily posted.  The
       Director shall take reasonable steps to insure that such notices
       are not altered, defaced or covered by any other material.
 
          (c) Pursuant to Section 2423.30 of the Rules and Regulations,
       notify the Regional Director, Region I, Federal Labor Relations
       Authority, in writing, within 30 days from the date of this Order,
       as to what steps have been taken to comply herewith.
 
                                       WILLIAM NAIMARK
                                       Administrative Law Judge
 
    Dated:  May 27, 1983
    Washington, DC
 
 
 
 
                                 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
 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT reject or fail to accept Joseph McCallion, or any other
 representative provided by the American Federation of Government
 Employees, Local 2637 as an observer and member of any Merit Training
 Panel which may be convened to rate applicants for training under the
 New York Regional Laboratory Training Plan.
 
    WE WILL NOT in any like or related manner interfere with, restrain or
 coerce employees in the exercise of their rights assured by the Federal
 Service Labor-Management Relations Statute.
 
    WE WILL accept and permit Joseph McCallion, or any other
 representative provided by American Federation of Government Employees,
 Local 2637, to act as an observer and member of any Merit Training Panel
 which may be convened to rate applicants for training under the New York
 Regional Laboratory Training Plan.
                                       (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 any employees have any question concerning this Notice or
 compliance with any of its provisions, they may communicate directly
 with the Regional Director, Region III, Federal Labor Relations
 Authority, whose address is:  441 Stuart Street, 9th Floor, Boston,
 Massachusetts 02116 and whose telephone number is:  (617) 223-0920.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Respondent excepted to the Judge's finding of fact that "In
 addition to rating individual applicants, the observer makes sure the
 procedure follows the Plan and that certain forms are signed." After
 careful examination of the record, and noting that the General Counsel
 specifically does not oppose the exception regarding the role of the
 Union observer at Merit Training Panels, the Authority finds that the
 Union observer does not rate individual applicants, but instead observes
 the proceedings and signs certain forms.  Therefore, the Judge's
 findings at Page 4, Paragraph 6 of his Decision are modified
 accordingly.
 
 
    /2/ In a case involving designation of union representatives for
 negotiations, the Authority held that an agency commits a violation of
 section 7116(a)(5) of the Statute when it designates the representatives
 of a labor organization with whom it will deal, rather than allowing the
 labor organization the right to designate its own representatives.
 Department of the Air Force 915th Tactical Fighter Group Homestead Air
 Force Base, Florida, 13 FLRA No. 33 (1983).
 
 
    /3/ The cases were transferred from Region II to Region I on February
 18, 1982.
 
 
    /4/ Two other branches of the New York District are The Investigation
 and Compliance sections.
 
 
    /5/ In a memorandum of Agreement dated October 16, 1979, Respondent
 and the Union agreed that when the existing 1974 agreement refers to
 Employer or District Director, it refers to the Director of the
 Laboratory during the reassignment.
 
 
    /6/ The record reflects that the Union had taken the position that it
 was entitled to as many as 18 representatives.
 
 
    /7/ As a result of the dispute the Union had filed an unfair labor
 practice charge against Respondent on July 21, 1981.  The regional
 office declined to issue a complaint on the ground that the matter was
 one of contract interpretation (Case No. 2-CA-1105 - October 16, 1981).
 Respondent attempted to resolve the matter under the bargaining
 agreement and also submit same to arbitration.  The Union would not
 accede to those procedures.  The dismissal of the charge was upheld by
 the Assistant General Counsel for Appeals on February 18, 1982.
 
 
    /8/ Under 5B of the New York Regional Laboratory Merit Training Plan
 both the Union and the EEO "each will provide one observer" to serve on
 the Rating Panel.
 
 
    /9/ In a memo dated December 24, 1981 Morse advised Hopes that at a
 meeting of the Union on December 22, 1981 elected union officials were:
 Morse, President;  Nelson, Vice-President;  and Charles Cardile, Shop
 Steward.
 
 
    /10/ Various other defenses are raised by Respondent in its brief to
 the undersigned.  These defenses, it is concluded, are not relevant to
 the central issue herein, and would not be determinative as to whether
 the rejectio