17:0972(132)CA - Nuclear Regulatory Commission and NTEU -- 1985 FLRAdec CA



[ v17 p972 ]
17:0972(132)CA
The decision of the Authority follows:


 17 FLRA No. 132
 
 NUCLEAR REGULATORY COMMISSION 
 Respondent
 
 and 
 
 NATIONAL TREASURY EMPLOYEES UNION 
 Charging Party
 
                                            Case No. 3-CA-20672
 
                            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 as alleged in the complaint, and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  Exceptions to the Judge's Decision in this
 regard were filed by the Respondent and an opposition thereto was filed
 by the Charging Party.  /1/ The Judge found that the Respondent had not
 engaged in certain other unfair labor practices alleged in the complaint
 and recommended dismissal of those portions of the complaint.  No
 exceptions were filed to the Judge's Decision in this regard.
 
    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 recommendations only to the extent
 consistent herewith.
 
    The complaint alleges that the Respondent violated section 7116(a)(1)
 and (5) of the Statute by unilaterally changing an established past
 practice that allowed unit employees who filed grievances under the
 agency's grievance procedure challenging their nonselection for
 supervisory positions to be represented by union stewards, without first
 affording the Charging Party proper notice and an opportunity to bargain
 with regard to such change.
 
    The Judge found that, while the Respondent was not obligated to
 bargain with the Union as to the role the Union would have in agency
 procedures to challenge supervisory selections or as to who would be
 allowed to represent employees in those proceedings, the Respondent was
 not precluded from bargaining on such matters.  He further found that
 the Respondent had bargained about and established a practice of
 allowing Union stewards to represent employees as personal
 representatives in supervisory selection grievances, and that it
 violated section 7116(a)(1) and (5) of the Statute by terminating such
 practice without first affording the Union adequate notice and an
 opportunity to bargain concerning the change.  The Authority disagrees.
 
    The Respondent contends, inter alia, that the Judge erred in finding
 that the Respondent had agreed to or allowed a practice to develop of
 allowing Union stewards to represent employees as personal
 representatives in supervisory selection grievances and, in any event,
 in concluding that the Respondent's actions involved a change in a
 condition of employment of bargaining unit employees.
 
    In reaching his conclusion in this case, the Judge reviewed the role
 the Union had taken in several grievances over a period of approximately
 three years.  He also reviewed the exchange of correspondence between
 the parties during that time on the subject of the Union's role in the
 grievances, and found that "such conduct on Respondent's part was
 tantamount to having bargained with the Union concerning steward's
 representation." We disagree.  While we agree with the Judge that an
 agency is not precluded from bargaining as to the role a labor
 organization may take in agency promotion procedures to challenge
 supervisory selections, /2/ we find that the record evidence does not
 support the Judge's finding that the Respondent's conduct amounted to
 bargaining with regard to the Union's role herein.  At most, a practice
 developed whereby the Respondent accepted as representatives of
 grievants, on an ad hoc basis, persons who were sometimes identified as
 stewards, and sometimes only as personal representatives.  It is not
 clear that, when identified as personal representatives, they were also
 being recognized in their capacity as stewards.  In fact, in our view,
 the very exchange of correspondence relied upon by the Judge leads
 rather to the conclusion that no agreement as to the exact role the
 Union may take was reached, but instead continued to be a matter in
 dispute.
 
    It is well settled that procedures for filling supervisory positions
 are matters outside the duty to bargain, as such procedures concern
 non-bargaining unit positions and do not concern conditions of
 employment of bargaining unit employees within the meaning of section
 7103(a)(14), and that a change in such procedures therefore does not
 constitute a violation of section 7116(a)(1) or (5) of the Statute.  /3/
 In the Authority's view, procedures for challenging the selection of
 supervisors are integrally related to the procedures for filling
 supervisory positions.  Therefore, since the Respondent had no duty to
 bargain concerning the supervisory selection process itself, the
 Authority concludes that the Respondent also had no obligation under the
 Statute to bargain concerning the role of the Union, if any, in agency
 procedures to challenge supervisory selections, inasmuch as such matters
 similarly do not concern conditions of employment within the meaning of
 section 7103(a)(14) of the Statute.  In this regard, the Authority notes
 that section 7102(e) of the Statute /4/ provides that employees have the
 right to engage in collective bargaining, through their exclusive
 representative(s), with respect to conditions of employment.  It follows
 that employees' exclusive representative(s) also have the statutory
 right to represent employees only with respect to their conditions of
 employment.  Having determined that the matters here involved do not
 concern conditions of employment of bargaining unit employees, the
 Authority concludes that the Respondent did not violate section
 7116(a)(1) or (5) of the Statute by unilaterally changing a past
 practice concerning the representation of unit employees in these
 matters.  Accordingly, and noting particularly that no exceptions were
 filed with respect to the Judge's recommended dismissal of certain other
 allegations of the complaint, the Authority shall order that the
 complaint be dismissed in its entirety.  /5/
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 3-CA-20672 be, and it
 hereby is, dismissed in its entirety.  
 
 Issued, Washington, D.C., May 10, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Dennis C. Dambly, Esq. and
    James E. Cradock, Esq.
    For the Respondent
 
    Mary W. Haller, Esq. and
    James R. Lawrence, Esq. on the brief
    For the Charging Party
 
    Carol J. Dixon, Esq. and
    Bruce D. Rosenstein, Esq.
    For the General Counsel
 
    Before:  SALVATORE J. ARRIGO, Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101
 et seq.
 
    Upon an unfair labor practice charge filed by the National Treasury
 Employees Union (herein referred to as NTEU or the Union) on July 16,
 1982 against the Nuclear Regulatory Commission (herein referred to as
 Respondent), the General Counsel of the Authority, by the Regional
 Director for Region III, issued a Complaint and Notice of Hearing on
 September 30, 1982 alleging Respondent unilaterally changed an
 established practice of allowing Union stewards to represent unit
 employees filing grievances concerning supervisory selections under the
 agency grievance procedure.
 
    A hearing on the Complaint was conducted on November 30, 1982 in
 Washington, D.C., at which time all parties were represented by counsel
 and afforded full opportunity to adduce evidence, call, examine and
 cross-examine witnesses and argue orally.  Briefs were filed by all
 parties and were duly considered.
 
    Upon the entire record in this matter /6/ and from my evaluation of
 the evidence, I make the following:
 
                  Findings of Fact and Conclusions of Law
 
 Issues
 
    Essentially, the General Counsel contends that on June 14, 1982
 Respondent unilaterally terminated a practice of allowing Union
 stewards, both in their capacities as Union officials and personal
 representatives, to represent bargaining unit employees who were
 grieving their non-selection to supervisory positions through the agency
 grievance procedures.
 
    Respondent denies that a practice of permitting Union stewards in
 their capacity as Union officials to represent employees ever existed
 and contends that if such a practice did exist, the application of
 section 7116(a)(4)(A) of the Statute precludes a finding of violation
 regarding its termination.  /7/ Respondent admits the existence of a
 practice of permitting Union stewards to act as personal representatives
 of employees who were grieving their non-selection to supervisory
 positions under the agency grievance procedure, but contends the
 unilateral discontinuance of the practice did not violate the Statute
 since Respondent's action involves a matter which is not a working
 condition within the meaning of the Statute.  Background and the Alleged
 Practice
 
    At all times since November 1978 the Union has been the exclusive
 collective bargaining representative of various of Respondent's
 employees.  Union representation is provided employees through NTEU
 Chapter 208.
 
    The record reveals that prior to the filing of this unfair labor
 practice charge, nine employees had grievances concerning their
 non-selection to supervisory positions processed by Respondent under the
 agency grievance machinery, the only procedure available to contest such
 matters.  The agency grievance procedure, set forth in NRC Manual
 Chapter 4157 and in effect at all times prior to November 30, 1982,
 provides in section B.1.d. that employees shall have the right to " . .
 . be accompanied, represented, and advised by representatives of their
 own choosing in presenting grievances." Section B.3. pertains to the
 rights of unions in these proceedings and provides:
 
          "Employee Unions.  An employee union which has been granted
       exclusive recognition for the bargaining unit in which an employee
       is located shall have the opportunity to be represented at formal
       discussions between the employee and NRC officials which relate to
       the adjustment of the grievance.  Nothing in this provision shall
       preclude employees from handling their own grievances, if they
       wish, or choosing their own representatives.  Employee unions may
       not initiate grievances under the provisions of this chapter but
       may present a grievance on behalf of an employee or group of
       employees in the recognized bargaining unit in accordance with the
       appropriate provisions of the collective bargaining agreement
       currently in effect."
 
    After the Union became the exclusive representative, employee Harry
 Mitchell filed the first grievance concerning an employees'
 non-selection for a supervisory position on September 19, 1979.
 Thereafter, the Union filed another grievance on behalf of Mitchell
 relative to the dispute.  The matter was subsequently heard at step 3 by
 a Grievance Examiner.  /8/ During the grievance proceedings Mitchell was
 represented by a Union steward at the early stages.  When that steward
 left the agency another steward, Martin Levy, was appointed by the
 Chapter 208 President to represent Mitchell and Levy thereafter
 "handled" the grievance on behalf of Mitchell.  When the grievance came
 to be heard by a Grievance Examiner, Martha Finlaton, NTEU Assistant
 Counsel and Martin Levy appeared as co-counsel, the appearance portion
 of the Grievance Examiner Report and Recommendation stating:
 
          "Martha Finlaton, Esq.
 
          Martin Levy, Esq.
 
          National Treasury Employees Union for the Grievant."
 
 Subsequently, Respondent's official who reviewed the grievance adopted
 the findings and conclusions of the Examiner.  The letter of the
 reviewing official notifying the parties of this action was sent to
 Finlaton, identified as Assistant Counsel, NTEU and Levy, who was
 identified as "Steward."
 
    The second, unit employee who utilized the agency grievance procedure
 concerning a supervisory selection was James Snell.  Snell filed five
 grievances concerning five separate supervisory vacancy announcements in
 late November 1980.  The grievances were first filed under a negotiated
 Interim Agreement between the Union and Respondent which existed at the
 time.  In its initial response management indicated that the proper
 manner of proceeding with such grievances was under the agency
 procedures and James Thomas, Chapter President and also a steward,
 subsequently refiled the grievance under that procedure.  By memorandum
 dated January 13, 1981 from Snell to management, Snell appointed five
 individuals including Thomas as "personal representatives." The
 memorandum listed the five individuals by name and gave no indication
 that they were Union officials although the record reveals that at least
 four of the five persons were Union stewards.  /9/ When the grievances
 went to the final step under the agency procedure, presentation before a
 Grievance Examiner, Thomas appeared as Snell's "personal representative"
 for two of the grievances and two other stewards represented Snell for
 the remaining three grievances.
 
    The next employee involved in a supervisory selection grievance was
 Frank Costello.  On January 8, 1981, steward Martin Levy sent a
 memorandum on Union stationery to management which began:  "In
 accordance with NRC Manual Chapter 4157, specifically paragraphs 041 and
 A.4.c. among others, on behalf of Mr. Frank Costello, I wish to file a
 Grievance.  Mr. Costello has requested that I act as his
 Representative." The letter was signed "Martin Levy, Steward NTEU
 Chapter 208." Levy sent another letter to management on Union stationery
 concerning the processing of this grievance on March 13, 1981.  In that
 letter Levy stated, inter alia:
 
          "Also, it is my understanding that for some obscure reason, the
       Labor Relations Branch Personnel are advising Management Officials
       that the Union can not represent Bargaining Unit Employees for
       certain grievances.  Since the law clearly gives the Union the
       authority to represent Bargaining Unit Employees in all
       grievances, we find this action disturbing.  However, if you
       accept this premise, then I am filing this request for a hearing,
       under protest, as the personal representative of the Bargaining
       Unit Employee.  If you recognize the right of the Union to
       represent Bargaining Unit Employees in all matters which they can
       grieve, then I am representing the Bargaining Unit Employee as the
       Chief Steward of NTEU Chapter 208."
 
    When management next responded to matters concerning the Costello
 grievance on April 1, 1981, its memorandum was addressed to "Martin
 Levy, Personal Representative for Mr. Costello" and referred to Levy in
 that manner again in the text of the letter.
 
    The fourth supervisory selection grievance involved employee Paul
 Guinn.  In a memorandum dated February 19, 1981 to management "key line
 official" Vandy Miller, signed by Jim Thomas, President, NTEU Chapter
 208, /10/ on Union stationery, Thomas indicated that he was filing a
 grievance under Manual Chapter 4157 concerning Guinn.  /11/ After naming
 Guinn as the grieving employee and setting forth details relating to the
 grievance, Thomas concluded:  "The grievant has requested that NTEU
 represent him in this matter.  Acting in that capacity, I hereby request
 that you waive further meetings . . ." On March 1, 1981, Paul Bird,
 Respondent's Director, Division of Organization and Personnel, sent a
 memorandum to Thomas with the subject heading:  "Role of NTEU in Agency
 Grievance Procedure." The memorandum stated, as follows:
 
          "This is in reference to your memorandum dated February 19,
       1981, to Vandy Miller in which you filed a formal grievance on
       behalf of Paul Guinn under the Agency Grievance Procedure, NRC
       Appendix 4157.  A copy of this memorandum was subsequently
       referred to me to clarify the Union's rule in an Agency grievance.
       NRC Chapter 4157-032 delegates this responsibility to the
       Director, Division of Organization and Personnel.  Mr. Miller
       believes and I agree that such a clarification is necessary before
       he issues an official response to the grievance.
 
          "The matter in question is the first sentence in your last
       paragraph-- 'The grievant has requested that NTEU represent him in
       this matter.' NRC Appendix 4157, Part B.3. states that 'Employee
       unions may not initiate grievances under the provisions of this
       chapter but may present a grievance on behalf of an employee or
       group of employees in the recognized bargaining unit in accordance
       with the appropriate provisions of the collective bargaining
       currently in agreement effect.' Since the grievance concerns a
       non-bargaining unit position, the interim agreement is not
       applicable.  The proper channel, therefore, is the agency
       grievance procedure.  However, since NTEU as an entity is
       prohibited from initiating a grievance under 4157, the above
       grievance is improperly filed.
 
          "If Mr. Guinn wants you to represent him in this matter, you
       may do so only as his personal representative.  Should the NTEU
       wish to have a representative present at any formal discussion
       between Mr. Guinn and NRC officials regarding this grievance, such
       will be permitted.  Please be advised that the above
       interpretation applies to any subsequent grievances filed by the
       Union under 4157. . . . "
 
    On March 4, 1981, Thomas sent Miller the following Memorandum on
 Union stationery:
 
          "I received on this date a memorandum from Paul Bird, Director
       of Personnel, indicating that it is the NRC's position that the
       February 19, 1981 formal agency grievance appeal which I filed
       with you on behalf of Paul Guinn is improper.  The basis for this
       assessment is that 4157, Part B.3 precludes Unions from filing
       agency grievances on behalf of employees.  While I personally
       disagree with this interpretation, I am forced to follow it.
       Therefore, please consider this memorandum as a modification of
       the February 19 grievance appeal which deletes all references to
       Union representation and inserts the phrase personal
       representative in its place.
 
          "Please be further advised that Chapter 208 is following this
       management directive under protest.  As such, we do not forfeit
       any right to appeal the management decision to preclude Union
       representation in agency grievances.
 
          "Finally, now that the matter of Union representation on this
       case has been resolved, I would appreciate your complying with my
       request for a prompt response to the grievance appeal, if at all
       possible."
 
    Thomas signed the document as "President, NTEU Chapter 208."
 
          On March 18, 1981 "key line official " Miller denied Guinn's
       grievance.  Miller's memorandum was addressed to Thomas as
       President of NTEU Chapter 208 and indicated it was a response to
       "the grievance you filed on behalf of Paul Guinn . . . " also
       refers to the Guinn grievance as "your grievance."
 
    Thomas appealed Miller's denial of Guinn's grievance to the Division
 Director.  The appeal, written on plain letterhead on March 26, 1981 and
 signed by Thomas, President, NTEU Chapter 208 stated, inter alia:
 
          "Pursuant to NRC Manual and Appendix 4157, I wish to appeal the
       March 18, 1981 denial of the formal agency grievance filed on
       behalf of Paul Guinn on February 19, 1981 and amended on March 4,
       1981.  Please be advised that I am acting as Mr. Guinn's personal
       representative in this matter under protest;  NTEU Chapter 208
       maintains that the Union should be allowed to represent employees
       in the bargaining unit as an entity and not be required to
       designate personal representatives.  This information is not being
       furnished as an issue in this grievance but merely to preserve our
       right to contest management's decision to disallow Union
       representation to bargaining unit employees at a later date."
 
    The record does not disclose any further communication between the
 parties regarding this matter.
 
    The next grievance considered was that involving employee Jack Bell
 which was initiated on February 23, 1981.  Chief Steward Martin Levy
 represented Bell and the record reveals that Levy's correspondence to
 management was written on Union stationery and signed by Levy as Chief
 Steward, NTEU Chapter 208.  In one of those letters Levy stated that ".
 . . it is our understanding that based on the Civil Service Reform Act
 of 1978, a union official has a right to represent a bargaining unit
 employee and to do so as a union official." However, the grievance
 involved two separate matters;  one dealing with a non-selection issue
 under the agency procedure and the other concerning the proper "key line
 official" under the negotiated Interim Agreement and it is not clear as
 to what Levy's comment regarding the rights of Union officials apply.
 Respondent's subsequent correspondence to Levy addressed him as Chief
 Steward of NTEU Chapter 208, but in correspondence of August 26, 1981 to
 Chapter 208 President, James Thomas from one of Respondent's attorneys'
 concerning this matter, the attorney referred to a previous meeting of
 July 30 wherein Thomas and Levy acted as personal representatives for
 Bell and Paul Guinn, who also had a grievance under consideration at the
 time.  At some undisclosed time when the Bell grievance involved a
 proceeding before Judge Greg, who I assume was a Grievance Examiner,
 Levy identified himself as Bell's personal representative.
 
    The sixth supervisory selection grievance concerned employee John
 Nehemias.  On June 19, 1981 a formal written grievance was filed with
 Respondent under Union letterhead by Lynne O'Reilly, who identified
 herself as a steward for NTEU Chapter 208.  O'Reilly indicated in the
 grievance that Nehemias requested she represent him in the matter.  The
 grievance was resolved informally.  The agency's covering memorandum
 returning the grievance to O'Reilly on July 9 identified O'Reilly as a
 personal representative and did not refer to her as a steward.
 
    The seventh grievance involved employee Peter Hearn and was submitted
 on August 17, 1981 by steward Leah Tremper in the same manner as the
 Nehemias grievance.  Management's response to Tremper of October 2, 1982
 and a subsequent notification of the scheduling of a hearing in the
 matter identified Tremper as steward for NTEU Chapter 208.  When
 Respondent notified Tremper on April 19, 1982 of its final disposition
 of the matter, it referred to Tremper only as "personal representative."
 
    The eighth grievance concerned employee Leonard Gordon and was filed
 by steward Martin Levy on September 10, 1981, again, in the same manner
 as the prior two grievances considered herein.  Management's response to
 Levy on October 7, 1981 referred to Levy only as "personal
 representative" as did management's notification to Levy of its final
 disposition of the matter on January 26, 1982.
 
    The last grievance processed under Manual Chapter 4157 was filed on
 July 16, 1981 by steward Teresa Barnhart on behalf of employee Gary
 Staley.  This grievance was filed in the same format as the prior three
 grievances, above.  Management's first response to Barnhart identified
 her as steward for NTEU Chapter 208.  An interim decision by management
 was adverse to Staley and by memorandum of September 4, 1981, under
 Union letterhead and signed by Barnhart as steward for NTEU Chapter 208,
 Barnhart took issue with the decision.  In the text of the memorandum
 Barnhart stated she was appealing the decision "as personal
 representative and Union Steward for Gary B. Staley." The matter went to
 hearing before an examiner at which time Barnhart was referred to and
 acted as Staley's "personal representative" and Chief Steward Martin
 Levy was referred to as "the Union's representative." /12/ Management's
 final disposition of the matter was transmitted to Barnhart on February
 3, 1982, and identified Barnhart only as "personal representative."
 
    On June 4, 1982 Steward Allen Brodsky filed a written supervisory
 selection grievance under Manual Chapter 4157 on behalf of James Martin
 in the same format as the prior four grievances.  On June 14, 1982 Greg
 Benoit, Respondent's Chief of Labor Relations Branch, sent the following
 memorandum to Brodsky:
 
          "This is to inform you that we are rejecting the grievance you
       filed, dated June 4, 1982, on behalf of Mr. James A. Martin, Jr.
       We are rejecting this grievance because we feel it is a conflict
       of interest for a potential SES member to be represented by the
       National Treasury Employees Union (NTEU).  It is our feeling that
       if you were to prevail in Mr. Martin's behalf he would be beholden
       to you personally and to the NTEU.  We feel it would be improper
       for a member of the SES to have an indebtedness to NTEU.
 
          "We will allow Mr. Martin 10 days from the date of your receipt
       of this memorandum to refile his grievance represented by someone
       other than an NTEU Steward or officer."
 
    Union President Thomas strongly objected to Respondent's action and
 by memorandum of July 2, 1982 to Thomas, Benoit re-asserted and further
 supported management's position on excluding Union representation in
 grievances involving selections for upservisory positions.  Discussion
 
    As stated above, Counsel for the General Counsel contends that prior
 to June 14, 1982 a practice existed whereby Union stewards, in their
 capacity as Union officials, were permitted to represent employees in
 supervisory selection grievances.  It is well settled that in order to
 establish a term and condition of employment by practice, under the
 Statute the practice must have been consistently exercised for a
 substantial period of time with the employer's knowledge and consent.
 Department of the Navy, Naval Underwater Systems Center, Newport Naval
 Base, 3 FLRA 413 (1980);  and Social Security Administration,
 Mid-America Service Center, Kansas City, Missouri, 9 FLRA 229 (1982).
 
    In the case herein, while the evidence relative to the Mitchell
 grievance (the first) may tend to support the General Counsel's
 contention, the next grievance (Snell) is more ambiguous.  In the Snell
 grievance the Union steward is identified both as "steward" and
 "personal representative" and it does not appear that during the
 processing of this matter the Union ever clearly and expressly declared
 its intention to management that the Union was representing employees
 through its steward.
 
    The next grievance (Costello) was also initiated in a somewhat
 ambiguous manner.  However, during the processing of the following
 grievance, that involving employee Guinn, the Union, qua Union, clearly
 disclosed its intention to act as the employee's representative in the
 grievance.  Respondent's reaction was equally clear.  Thus, Respondent
 on March 1, 1981 specifically rejected Union representation of Guinn,
 although Respondent obviously had no objection to Union stewards
 representing employees as "personal representatives" and on March 4 the
 Union acceded to Respondent's position, albeit under protest.  Chief
 Steward Levy's March 13, 1981 memorandum to Respondent when processing
 the Costello grievance recognized that Respondent's Labor Relations
 Branch was sensitive to the Union acting in a representational capacity
 for employees when the agency grievance procedure was invoked and Levy
 indicated he was representing Costello as Union Chief Steward or as
 Costello's personal representative, whichever would be acceptable to
 Respondent, again under protest.  Management's subsequent communication
 to Levy addressed him as Costello's "personal representative," thus
 indicating it was rejecting Union representation in the matter.
 Thereafter, Respondent's conduct in all the following grievance
 proceedings was consistent with this practice and Union stewards,
 although referring to themselves as stewards, never again indicated they
 were claiming to represent employees in their capacity as officials of
 the Union or that the Union, qua Union, was representing the
 individuals.
 
    In view of the foregoing, I find that the standards set by the
 Authority for finding the existence of a practice, Department of the
 Navy, supra and Social Security Administration, supra have not been met
 and accordingly, I conclude that the evidence is insufficient to
 establish that a practice of allowing the Union or Union stewards, as
 Union officials, to represent employees in Manual Chapter 4157
 proceedings concerning supervisory selections ever existed.  In any
 event, I find that if such a practice existed it was discontinued on
 March 1, 1981.  Since no unfair labor practice charge concerning the
 discontinuance was filed within 6 months of such action, I conclude the
 matter is not a proper subject for litigation herein by virtue of the
 provisions of section 7118(a)(4)(A) of the Statute, supra.
 
    I further find and conclude, as indeed Respondent admits, that prior
 to June 14, 1982 a practice existed whereby Union stewards were
 permitted to represent unit employees as personal representatives in
 supervisory selection grievances under the agency grievance procedure.
 
    However, Respondent contends that it was privileged to unilaterally
 discontinue the practice.  Respondent argues that supervisory selection
 procedures are not working conditions within the meaning of the Statute
 and accordingly, it had no duty to bargain with the Union prior to
 changing its policy in the matter.  Respondent relies upon the ruling of
 the Authority in International Association of Fire Fighters, Local F-16
 and Philadelphia Naval Shipyard, 3 FLRA 438 (1980), and a line of cases
 which follow this case.  /13/ Although, not obligated to bargain on the
 matter, Respondent acknowledges that it is not prohibited from doing so
 and may elect to bargain on supervisory selection procedures if it so
 chooses.  Nevertheless, Respondent avers that it has never bargained
 with the Union on grievance procedures concerning supervisory selections
 and points to record testimony which reveals that at some undisclosed
 time during negotiations which led to the 3-year collective bargaining
 agreement which was signed by the parties on April 15, 1981, the Union
 proposed that supervisory selection procedures be included in the
 negotiated agreement and Respondent refused to negotiate on the issue.
 Further, Respondent contends that bargaining unit employees cannot gain
 any collective rights in areas outside their working conditions except
 by contract and since no contractual right in the matter at issue herein
 exists, Respondent had no duty to bargain before changing its policy.
 
    In the Philadelphia Naval Shipyard case, supra, and numerous cases
 decided thereafter, the Authority has held that promotional procedures
 applicable to nonbargaining unit supervisory positions were negotiable
 only at the election of the agency involved.  The Authority reasoned
 that since the duty to bargain under the Statute extends only to
 conditions of employment of bargaining unit employees, and under the
 Statute supervisors are excluded from inclusion in collective bargaining
 units, an agency is not obliged to bargain with a union on promotion
 procedures for filling nonbargaining unit supervisory positions.
 
    The Authority more fully explicated its rationale in a prior case,
 National Council of Field Labor Locals, American Federation of
 Government Employees, AFL-CIO and U.S. Department of Labor, Washington,
 D.C., 3 FLRA 290 (1980).  In that case a Union, during contract
 negotiations, proposed that competitive procedures in the agency's Merit
 Promotion Plan be utilized when filling supervisory or management
 positions with bargaining unit employees.  The Authority held the
 proposal was outside the agency's duty to bargain under the Statute,
 explaining:
 
          " . . . The proposal puts conditions on filling supervisory and
       management positions which are outside the unit and may not be
       included in appropriate units by operation of section 7112(b)(1)
       of the Statute.  An exclusive representative's obligation and
       correlative rights, however, extend only to employees in the unit,
       under section 7114(a)(1).  Furthermore, the definition of
       "collective bargaining" found in section 7103(a)(12) . . .
       restricts the scope of the obligation to bargain in good faith to
       matters affecting the conditions of employment of employees in an
       appropriate unit.  Consequently, the agency has no obligation to
       bargain over matters relating to the non-bargaining unit positions
       referred to in the proposal.  Thus, as the proposal goes beyond
       the representation rights of the exclusive representative and does
       not directly relate to conditions of employment of unit employees,
       it is outside the duty to bargain under the Statute." (Footnote
       omitted.)
 
    Clearly then, under the Statute procedures for filling supervisory
 positions, including unilaterally making changes in those procedures,
 are matters outside an employer's duty to bargain since such procedures
 concern nonbargaining unit positions.  Department of the Navy, Naval
 Underwater Systems Center, Newport, Rhode Island, 11 FLRA 316 (1983).
 In my view the procedure to challenge the selection of supervisors, such
 as the agency grievance procedure herein, similarly is not a matter over
 which an employer is obligated to bargain.  Such grievance procedure,
 including who may represent a grievant in the proceeding, is an integral
 part of and so closely related to the selection procedure itself as to
 require being accorded the same treatment and consideration as the
 selection procedure.  Accordingly, I conclude Respondent had no
 obligation to bargain with the Union as to what role the Union would
 have in agency procedures to challenge supervisory selections or who
 would be allowed to represent employees in those procedures.
 
    However, while Respondent was not obligated to bargain with the Union
 on the matter, it was not precluded from bargaining if it so desired and
 could thereby provide the Union with rights it would not ordinarily
 possess but for Respondent's relinquishment of those rights.  Thus,
 Respondent was free to bargain away its rights to unilateral control
 over who would represent employees when challenging supervisory
 selections.
 
    The scope of the concept of what constitutes "bargaining" under the
 Statute has not yet been fully defined.  However, a contention that in
 "negotiations" a union must make a specific proposal and discussions
 must somehow lead to a written contract has been rejected as being ". .
 . too limited an interpretation that would frustrate meaningful
 negotiations in favor of some sort of stylized form of communication."
 Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms,
 North Atlantic Region, (New York, New York), 8 FLRA 296 at 304 (1982).
 Indeed, it is not uncommon that all "bargaining" between parties on a
 matter takes place through an exchange of correspondence, with no
 face-to-face meetings having ever occurred.  Further, a "bargaining
 obligation" can be breached in situations where no contract or agreement
 is envisioned but information is sought by a union, and an employer
 refuses to produce the information.  Veterans Administration Regional
 Office, Denver, Colorado, 7 FLRA 629 (1982);  Bureau of Alcohol, Tobacco
 and Firearms, National Office and Western Region, San Francisco,
 California, 8 FLRA 547 (1982);  and Internal Revenue Service, Western
 Region, San Francisco, California, 9 FLRA 480 (1982).  The issue in
 Veterans Administration, Denver, supra, concerned an employer's
 obligation to furnish information requested by a Union related to the
 processing of an employee's grievance.  The Authority held that the duty
 of an agency to "negotiate" in good faith with a union as required by
 section 7114(a)(1) of the Statute includes the obligation to furnish
 such information.  Thus, the Authority has clearly recognized that the
 words "bargain" and "negotiate" have an expansive meaning and are to be
 applied to situations beyond that of mere face-to-face exchanges of
 proposals at the conclusion of which the parties anticipate the
 execution of a written document.
 
    In the case herein Union stewards represented all unit employees who
 grieved their non-selection for supervisory positions from the time the
 Union became the exclusive collective bargaining representative in
 November 1978 until Respondent unilaterally refused to permit such
 representation in June 1982, and Respondent was aware that stewards were
 representing employees in these grievances.  After the Union obtained
 its exclusive representation status, Respondent engaged in a course of
 conduct which clearly and unmistakably reflected a practice or policy of
 dealing with the Union to the limited extent of permitting stewards to
 act as personal representatives for unit employees in supervisory
 selection grievances.  Respondent could have refused to allow such
 representation.  In March 1981 with regard to recognizing the Union, qua
 Union, as a representative of employees in these proceedings it
 unequivocally refused to permit such representation.  Nevertheless,
 Respondent opted to deal with stewards and permit their appearance as
 personal representatives.  The issue of steward representation of
 employees was clearly put in contention during the grievances concerning
 employees Paul Guinn and Costello.  When Respondent rejected the
 December 16, 1980 grievances concerning Guinn, steward Levy was
 explicitly advised that he could not represent Guinn as a Union steward,
 supra.  Later in March 1981 when dealing with Guinn's grievance, Union
 President Thomas was advised that the Union could not represent Guinn
 but the letter permitted Thomas, also a steward, to represent Guinn as a
 personal representative.  Although "under protest", the Union accepted
 Respondent's position on the matter and thereafter, during the Guinn and
 Costello grievances, and five succeeding grievances over the next 15
 months, stewards consistently acted as personal representative in
 supervisory selection grievances and Respondent fully recognized and
 unequivocally dealt with them on the grievances.
 
    In my view such conduct on Respondent's part was tantamount to having
 bargained with the Union concerning steward's representation.  During
 the Guinn grievance the issue of the Union's role in these supervisory
 selection grievances was clearly joined, the parties expressed their
 positions on the subject and the matter was resolved by a procedure
 obviously agreeable to both parties:  the Union acquiesced, albeit under
 protest, to Respondent's position precluding Union representation of
 employees and Respondent permitted stewards to represent employees as
 their personal representatives.  That resolution consistently governed
 the succeeding five grievances during the following 15-month period.
 Further, such representation by stewards was not contrary to the
 language of Manual Chapter 4157 whereby employees were permitted to
 choose their own representatives in these proceedings.  /14/ Thus, while
 Respondent may not have been obligated to bargain with the Union on
 permitting stewards to act as personal representatives in processing
 grievances under the agency procedures, I find and conclude that its
 actions indicated it in fact "bargained" with the Union within the
 meaning of the term "bargain" as used by the Authority in Philadelphia
 Naval Shipyards, supra, and cases following thereafter.
 
    Accordingly, I conclude that Respondent, before terminating the
 practice of stewards representing employees as personal representatives
 in supervisory selection grievances, was obligated to provide the Union
 with adequate notice and an opportunity to bargain about the
 discontinuance of the practice and the procedures which management
 officials would observe in discontinuing the practice and appropriate
 arrangements for employees adversely affected by such action.  I further
 conclude that by its failure to give the Union adequate notice and an
 opportunity to bargain concerning the change, Respondent violated
 section 7116(a)(1) and (5) as alleged.  Remedy
 
    Counsel for the General Counsel and counsel for the Union contend
 that a status quo ante order is appropriate in this case.  I agree.
 
    Prior to Respondent's refusal to permit representation by Union
 stewards in June 1982, stewards represented every employee who grieved
 supervisory non-selection.  Respondent's refusal clearly conveyed that
 representation by stewards would not be permitted in the future and to
 so request would indeed be a futile act.  Accordingly, regardless if
 requested after June 1982, I infer that grieving employees would have
 selected stewards to represent them in such matters but for Respondent's
 conduct and I will treat all Manual Chapter 4157 proceedings after June
 1982 as voidable at the discretion of the aggrieved employee if the
 employee desires representation by a steward.  If voided, the matter
 will then be re-processed and if the grievant is successful, Respondent
 will make the grievant whole for any loss of earnings or benefits
 suffered from the time the grievant initially failed in the prior
 non-selection grievance when deprived of a Union steward to act as the
 grievant's personal representative.
 
    In view of the entire foregoing I recommend that the Authority issue
 the following:
 
                                   ORDER
 
    Pursuant to section 2430.20 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, the
 Authority hereby orders that the Nuclear Regulatory Commission shall:
 
    1.  Cease and desist from:
 
          (a) Refusing to permit Union stewards, designated as "personal
       representatives," from representing unit employees when the
       employees grieve their non-selection for supervisory positions in
       Manual Chapter 4157 proceedings without first affording National
       Treasury Employees Union, the employees exclusive collective
       bargaining representative, notice and an opportunity to bargain,
       consonant with the obligations imposed by the Statute, concerning
       any proposed change in such practice.
 
          (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) Rescind the memorandum of June 14, 1982 to Union Steward
       Allen Brodsky and the memorandum of July 2, 1982 to Local 208
       President James Thomas regarding the rejection of grievances where
       Union stewards are selected by employee grievants to represent
       them in Manual Chapter 4157 proceedings involving employees'
       non-selection for supervisory positions.
 
          (b) Upon request, recognize Union stewards designated as
       "personal representatives" of unit employees when employees grieve
       their non-selection for supervisory positions in Manual Chapter
       4157 proceedings.
 
          (c) Upon request of any aggrieved unit employee, rehear the
       grievance of employee Gary Staley and any grievance brought after
       June 14, 1982 in a Manual Chapter 4157 proceeding concerning the
       employee's non-selection for a supervisory position, where the
       employee designates a Union steward as his "personal
       representative" and, if successful in the grievance, make the
       grievant whole for any loss of earnings or benefits suffered.
 
          (d) Post at all its facilities wherein unit employees are
       located, 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 Executive Director for
       Operations of the Nuclear Regulatory Commission and shall be
       posted and maintained by him for 60 consecutive days thereafter,
       in conspicuous places, including all bulletin boards and other
       places where notices to employees are customarily posted.  The
       Executive Director shall take reasonable steps to insure that such
       Notices are not altered, defaced, or covered by any other
       material.
 
          (e) Pursuant to section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region III, Federal
       Labor Relations Authority, Washington Regional Office, P.O. Box
       33758, Washington, D.C.  20033-0758 in writing, within 30 days
       from the date of this Order, as to what steps have been taken to
       comply herewith.
 
                                       SALVATORE J. ARRIGO
                                       Administrative Law Judge
 
 Dated:  June 13, 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 refuse to permit Union stewards, designated as "personal
 representatives, from representing unit employees when the employees
 grieve their non-selection for supervisory positions in Manual Chapter
 4157 proceedings without first affording the National Treasury Employees
 Union, the employees exclusive collective bargaining representative,
 notice and an opportunity to bargain, consonant with the obligations
 imposed by the Statute, concerning any proposed changes in such
 practice.  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 rescind the memorandum of June 14, 1982 to Union Steward Allen
 Brodsky and the memorandum of July 2, 1982 to Local 208 President James
 Thomas regarding rejection of grievances where Union stewards are
 selected by employee grievants to represent them in Manual Chapter 4157
 proceedings involving employees' non-selection for supervisory
 positions.  WE WILL, upon request, recognize Union stewards designated
 as "personal representatives" of unit employees when employees grieve
 their non-selection for supervisory positions in Manual Chapter 4157
 proceedings.  WE WILL, upon request of any aggrieved unit employee,
 rehear the grievance of employee Gary Staley and any grievance brought
 after June 14, 1982 in a Manual Chapter 4157 proceeding concerning the
 employee's non-selection for a supervisory position, where the employee
 designates a Union steward as his "personal representative" and, if
 successful in the grievance, make the grievant whole for any loss of
 earnings or benefits suffered.
                                       (Agency/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 Relations Authority whose address is:
 Washington Regional Office, P.O. Box 33758, Washington, D.C.
 20033-0758;  and whose telephone number is:  (202) 653-8507.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Charging Party's motion to waive the time limit for filing
 its Brief in Opposition to the Respondent's exceptions was denied by the
 Authority, by letter dated August 24, 1983.  Thus, its opposition brief,
 untimely filed, has not been considered.
 
 
    /2/ Cf. American Federation of Government Employees, AFL-CIO, 15 FLRA
 No. 63 (1984), in which the Authority noted that while "promotion
 procedures for supervisory positions are outside the obligation to
 bargain, an agency may bargain on and agree to promotion procedures for
 supervisory positions as part of its collective bargaining agreement."
 
 
    /3/ See Department of the Navy, Naval Underwater Systems Center,
 Newport, Rhode Island, 11 FLRA No. 66 (1983), and cases cited therein.
 With respect to management's right to make changes concerning matters
 which do not affect bargaining unit employees' conditions of employment,
 see Department of the Navy, Naval Construction Battalion Center, Port
 Hueneme, California, 14 FLRA No. 60 (1984);  Federal Aviation
 Administration, Northwest Mountain Region, Seattle, Washington, 14 FLRA
 No. 89 (1984).
 
 
    /4/ Section 7102 provides in pertinent part:
 
          Sec. 7102.  Employees' rights
 
          Each employee shall have the right to form, join, or assist any
       labor organization, or to refrain from any such activity, freely
       and without fear of penalty or reprisal, and each employee shall
       be protected in the exercise of such right.  Except as otherwise
       provided under this chapter, such right includes the right--
 
                                .  .  .  .
 
          (2) to engage in collective bargaining with respect to
       conditions of employment through representatives chosen by
       employees under this chapter.
 
 
    /5/ In view of the foregoing conclusion, we find it unnecessary to
 pass upon the Respondent's contentions with respect to the sufficiency
 of the complaint, or with respect to the remedy recommended by the
 Judge.
 
 
    /6/ Respondent's unopposed Motion to Correct Transcript is granted.
 However, Respondent's request to have received into evidence a letter
 from the Regional Director approving the Union's withdrawal of
 allegations of section 7116(a)(2) and (8)