21:0765(96)CA - U.S. Nuclear Regulatory Commission and NTEU -- 1986 FLRAdec CA



[ v21 p765 ]
21:0765(96)CA
The decision of the Authority follows:


 21 FLRA No. 96
 
 U.S. NUCLEAR REGULATORY COMMISSION
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 3-CA-40346
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 to the attached Decision of the Administrative Law Judge filed by the
 Respondent.  The exceptions are limited to the Judge's finding that the
 Respondent violated section 7116(a)(1) and (8) of the Federal Service
 Labor-Management Relations Statute (the Statute) by holding a formal
 discussion within the meaning of section 7114(a)(2)(A) of the Statute on
 April 6, 1984, without permitting the Charging party's designated
 representative an opportunity to participate in the discussion.  /1/ No
 exceptions were filed to the Judge's additional finding that the
 Respondent did not also violate the Statute by conducting a formal
 discussion with unit employees on April 5, 1984, because the Charging
 Party had been notified of the meeting but chose not to attend.  In the
 absence of exceptions to this finding, the Authority adopts it without
 comment.
 
                           II.  Background Facts
 
    On April 6, 1984, representatives of the Respondent conducted what
 all parties concede was a formal discussion within the meaning of
 section 7114(a)(2)(A) of the Statute.  The meeting was conducted by the
 Director of the Administration and Resource Control Staff, Francis P.
 Gillespie, and involved the employees of the Accident Evaluation
 Division.  The subject matter of the meeting concerned a planned
 reorganization of the Office of Nuclear Research, of which the Accident
 Evaluation Division is a component.  In addition to all of the employees
 in the Accident Evaluation Division, including the Division and Branch
 Chiefs, Labor Relations Specialist Theresa Spearman was in attendance on
 behalf of management and Martin Levy was in attendance as the designated
 union representative.  Upon completing his prepared remarks, which
 included comments regarding why a zero was placed next to certain
 employees' names on the staffing plan previously supplied to employees
 in attendance, Gillespie asked for questions.  None were forthcoming.
 Gillespie then advised the employees that any comments or suggestions
 they had should be routed through the National Treasury Employees Union
 (NTEU), the exclusive representative of the employees in attendance.
 Levy then rose, identified himself by name and NTEU position, and began
 to discuss the zeroes in the staffing plan.  After being interrupted by
 Spearman several times while attempting to comment about the zeroes,
 Levy dropped the matter and attempted to explain to employees how they
 should route their comments and suggestions to the NTEU.  He was again
 interrupted by Spearman who prevented him from explaining anything
 further to the employees other than that they should see their union
 steward.
 
                          III.  Judge's Decision
 
    In finding that the Respondent violated section 7116(a)(1) and (8) of
 the Statute when it effectively prevented Levy from speaking, there by
 interfering with the UnionS right to be represented at a formal
 discussion under section 7114(a)(2)(A) of the Statute, the Judge
 concluded that the statutory phrase "right to be represented" means the
 right to comment, speak and to make statements.  He noted, however, that
 this right does not entitle a union to take charge of the proceedings.
 In this respect, the Judge found that Levy's comments were related to
 matters discussed either directly or indirectly by Director Gillespie.
 
                       IV.  Positions of the Parties
 
    The Respondent took the position in its exceptions that the NTEU
 representative had no right under section 7114(a)(2)(A) of the Statute
 to discuss how bargaining unit employees should communicate with the
 NTEU because such discussion constitutes internal union business.  With
 respect to the Judge's finding that the NTEU representative was
 prevented from discussing the staffing plan, the Respondent contends
 that Spearman was merely attempting to Prevent Levy from discussing
 matters beyond the scope of what had been addressed by Gillespie at the
 meeting.  The Respondent also argued that its agent's conduct in
 preventing the NTEU representative from continuing was based on a
 legitimate interpretation of the parties' collective bargaining
 agreement, which includes language addressing NTEU'S rights at a "formal
 discussion," and therefore involves only differing and arguable
 interpretations of their agreement with regard to formal discussions
 rather than an unfair labor practice.
 
    In its opposition to the Respondent's exceptions, NTEU contends that
 the first two exceptions constitute mere disagreement with the Judge's
 findings that both matters which the NTEU representative was prevented
 from addressing at the meeting were related to matters commented on
 directly or indirectly by Gillespie.  With respect to the Respondent's
 final exception, the NTEU contends that the applicability of the
 collective bargaining agreement was not at issue and is beyond the scope
 of the exceptions.  Further, the NTEU argues that the cases relied on by
 the Respondent are not applicable because they involve management
 changes in working conditions alleged to be covered by a collective
 bargaining agreement rather than a violation of a specific statutory
 right.
 
                               V.  Analysis
 
    The Authority specifically adopts the Judge's conclusion and
 supporting rationale that the Respondent violated section 7116(a)(1) and
 (8) of the Statute by effectively preventing the NTEU representative,
 Martin Levy, from speaking at a formal discussion within the meaning of
 section 7114(a)(2)(A) of the Statute.  Thus, as concluded by the Judge,
 the language in section 7114(a)(2)(A) of the Statute that the "exclusive
 representative . . . shall be given the opportunity to be represented"
 at a formal discussion means more than merely a right to be present.  It
 also means that a union representative has a right to comment, speak and
 make statements.  Of course, as noted by the Judge, this does not
 entitle a union representative to take charge of, usurp, or disrupt the
 meeting.  Comments by a union representative must be governed by a rule
 of reasonableness, which requires that there be respect for orderly
 procedures and that the comments be related to the subject matter
 addressed by the agency representative(s) at the meeting.  Further, in
 applying such a rule in future cases, the Authority will consider the
 purpose of the meeting conducted by the agency representative(s) and all
 of the surrounding circumstances in determining the extent of a union
 representative's right to participate in any formal discussion.
 
    As noted above, the Respondent essentially contends in its first two
 exceptions that the subject matter of the NTEU representative's comments
 went beyond what should be permissible, while the NTEU argues in
 opposition to those exceptions that they constitute mere disagreement
 with the Judge's factual analysis.  The Authority agrees with the NTEU
 that these two exceptions present no issue that the Judge did not
 consider and address in his Decision.  In the Authority's view, such
 exceptions are without merit.
 
    The Authority also concludes that the Respondent's final exception is
 without merit.  Thus, the language contained in the parties' collective
 bargaining agreement concerning "formal discussions" does not constitute
 a clear and unmistakable waiver of the NTEU'S section 7114(a)(2)(A)
 right to have an opportunity to be represented at a formal discussion.
 Such a statutory right must be consciuosly yielded before the Authority
 will defer to the parties' collective bargaining agreement.  /2/
 
                              VI.  Conclusion
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority has reviewed the rulings
 of the Judge made at the hearing, finds that no prejudicial error was
 committed, and thus affirms these rulings.  The Authority has considered
 the Judge's Decision, the Respondent's exceptions to the Judge's finding
 of violation, the positions of the parties and the entire record, and
 adopts the Judge's findings, conclusions, and recommended Order.  We
 therefore conclude that the Respondent violated section 7116(a)(1) and
 (8) of the Statute by preventing the Charging Party's representative
 from speaking at the April 6, 1984 formal discussion, within the meaning
 of section 7114(a)(2)(A), thus failing to comply with its obligations
 under that provision.  Noting that no exceptions were filed, we also
 conclude that the Respondent did not fail to comply with section
 7114(a)(2)(A) of the Statute in violation of section 7116(a)(1), (5) and
 (8) with respect to the April 5, 1984 meeting conducted by the
 Respondent.  Finally, we conclude that the Respondent did not violate
 section 7116(a)(5) with respect to the April 6, 1984 formal discussion.
 Accordingly, these aspects of the complaint shall be dismissed.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Statute, it is
 ordered that the U.S. Nuclear Regulatory Commission shall:
 
    1.  Cease and desist from:
 
    (a) Holding or conducting formal discussions within the meaning of
 section 7114(a)(2)(A) of the Statute with bargaining unit employees
 without permitting the exclusive bargaining representative, the National
 Treasury Employees Union, an opportunity to be represented at such
 formal discussions.
 
    (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) 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 authorized 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
 ensure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (b) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director Region III, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply with it.
 
    IT IS FURTHER ORDERED that the remaining allegations of the complaint
 in Case No. 3-CA-40346 be, and they hereby are, dismissed.
 
    Issued, Washington, D.C., May 12, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ 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 hold or conduct formal discussions within the meaning of
 section 7114(a)(2)(A) of the Statute with bargaining unit employees
 without permitting the exclusive bargaining representative, National
 Treasury Employees Union, an opportunity to be represented at such
 formal discussions.
 
    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.
                                       (Agency or Activity)
 
    Dated:
                                       By:  (Signature)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting and must not be altered, defaced or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director of the Federal Labor Relations Authority, Region III,
 whose address is:  1111-18th Street, N.W., Room 700, P.O. Box 33758,
 Washington, D.C. 20033-0758, and whose telephone number is:  (202)
 653-8500.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 3-CA-40346
 
    U.S. NUCLEAR REGULATORY COMMISSION
    Respondent
 
                                    and
 
    NATIONAL TREASURY EMPLOYEES UNION
    Charging Party
 
    Marvin L. Itzkowitz, Esquire
    Dennis C. Dambly, Esquire
    For the Respondent
 
    Jim Thomas
    For the Charging Party
 
    Philip Boyer, Esquire
    Bruce D. Rosenstein, Esquire
    For the General Counsel
    Federal Labor Relations Authority
 
    Before:  SAMUEL A. CHAITOVITZ
    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.
 Section 7101 et seq., 92 Stat. 1191 (hereinafter referred to as the
 Statute) and the Rules and Regulations of the Federal Labor Relations
 Authority (FLRA), 5 C.F.R. Chapter XIV, Section 2410 et seq.
 
    An unfair labor practice charge was filed on April 24, 1984 by
 National Treasury Employees Union (hereinafter called NTEU and the
 Union) alleging that the United States Nuclear Regulatory Commission
 (hereinafter called NRC and the Respondent) violated the Statute.  Based
 upon the foregoing the General Counsel of the FLRA, by the Regional
 Director of Region 3, issued a Complaint and Notice of Hearing on July
 27, 1984 alleging that NRC violated Sections 7116(a)(1), (5) and (8) of
 the Statute by holding two formal discussions within the meaning of
 Section 7114(a)(2)(A) of the Statute without, in one case, notifying the
 NTEU of the discussion and, in the other, without permitting the Union
 to participate in the discussion.  Respondent filed a timely Answer
 denying it had violated the Statute.
 
    A hearing was conducted before the undersigned in Washington, D.C.
 NRC, NTEU and General Counsel of the FLRA were represented and afforded
 full opportunity to be heard, to examine and cross-examine witnesses, to
 introduce evidence, to argue orally and to file post-hearing briefs.
 NRC and General Counsel of the FLRA argued orally and NRC filed a post
 hearing brief, which has been fully considered.
 
    Based upon the entire record in this matter, my observation of the
 witnesses and their demeanor, and from my evaluation of the evidence, I
 make the following:
 
                             Findings of Fact
 
    At all times material herein NTEU was the collective bargaining
 representative for a nationwide unit of NRC's professional and
 non-professional employees and WG employees, with certain exclusions,
 not here relevant.  The employees that are the subject of this case are
 within the unit described above.
 
    Prior to a reorganization that took place in April of 1984 the NRC
 Office of Nuclear Research was divided into six divisions, one of which
 was the Administration and Resource Control Staff, /3/ headed by
 Director Francis P. Gillespie.  Each division was in turn subdivided
 into branches.  Gillespie was the chief administrative officer for the
 Office of Nuclear Research and his division included personnel, resource
 allocation and space allocation responsibilities.
 
    At all times material NRC and NTEU were parties to a collective
 bargaining agreement covering the employees in the nationwide unit.
 Section 4.2 of the contract states that notice of formal discussions
 will be given to the NTEU chapter president or his designee.  At NRC the
 Union has designated stewards in the various facilities to receive
 notices of formal discussions and, in the past, the practice had been to
 notify the stewards in each facility of formal discussions.  /4/
 
    In the Spring of 1984 Gillespie and his division were in the process
 of planning and coordinating a reorganization of the Office of Nuclear
 Research.  Early in April, before meetings held on April 5 and 6, 1984,
 Gillespie sent notifications and detailed information to the affected
 employees and to the Union, concerning the reorganization of the Office
 of Nuclear Research.
 
    All the employees in all the divisions, except the Administration and
 Resources Control Staff, were notified in writing that at scheduled
 times on April 6, 1984 each division would meet separately and Gillespie
 would explain the reorganization.  The notice stated that "all personnel
 are requested to attend".  Also Union Steward and Chapter Vice-President
 Rene Audette received reorganization charts and a list of all employees,
 their grades, if the employees would be "impacted" by the reorganization
 and, if a "0" is next to an employee's name, that the employee's
 position would not be filed if the position became vacant.
 
    Gillespie, by the memoranda dated April 5, 1984 described above,
 advised 5 divisions within the Research Office of the April 6, 1984
 meetings to discuss the reorganization.  He had neglected to schedule
 such a meeting for his own Administration and Resource Control Staff
 because it had been intimately involved with the reorganization.
 Gillespie became aware of the oversight during the morning of April 5,
 1984 and decided to have a meeting with his staff that morning to
 explain the organization.  He told his secretary Betty Cianci and his
 two branch chiefs about the meeting and told Cianci to talk to Union
 Steward Rene Audette to see if he had any objection to such a meeting.
 
    At about 9:45 AM, Cianci went to Audette's place of work with a
 package containing the staffing plan and related papers and advised him
 of Gillespie's oversight to notify his own staff and that Gillespie
 wanted to have a meeting with his staff at about 11:00 AM.  Audette
 indicated that such a meeting was no problem and it could proceed.  /5/
 Audette is not, professionally, assigned to Administration and Resource
 Control Staff.  /6/ Cianci then advised Gillespie that Audette had no
 objection to the meeting.  Gillespie instructed Cianci to call the
 secretaries in the Administration and Resource Control Staff and have
 them tell the employees that there was to be a meeting at 11:00 AM in
 room 1133 of the Willstee Building concerning the reorganization and the
 material about the reorganization that had already been distributed.
 Some of the employees in the Administration and Resource Control Staff
 were located in the Willstee Building in Silver Spring, where the
 meeting was to be held, and others were located in other buildings
 somewhat nearby.
 
    The meeting of the Administration and Resource Control Staff was held
 at about 11:00 AM in room 1133 of the Willstee Building.  Present at the
 meeting was Gillespie, who chaired it, the two branch chiefs, and the
 section chiefs.  About 20 of the approximately 22 employees in the staff
 attended.  No NTEU representative was present at the meeting.
 
    Although Respondent's witnesses testified that the meeting was
 "voluntary", there is no indication that the employees were told that it
 was voluntary and that they need not attend, rather, the record
 establishes that they were informed that there would be a meeting over
 which Gillespie would preside.
 
    Gillespie chaired the April 5 meeting.  He described the
 reorganization and stated that nobody on his staff would lose his job,
 although a couple would be physically moved from one nearby building to
 the Willstee Building.  He also stated that the technical divisions
 would be reduced in number from five to four.  Gillespie referred to the
 reorganization description that had been distributed to employees.
 Gillespie then asked if there were any questions.  No questions were
 asked.  Gillespie instructed the employees to transmit comments throught
 the Union.  The meeting took about 10 minutes.
 
    One of the meetings held on April 6, 1984 involved the Accident
 Evaluation Division.  Martin Levy attended this meeting as the NTEU
 representative.  The meeting was held in room 1133, a conference room,
 of the Willstee Building.  The employees were notified of this meeting
 by the memorandum to employees described above.  The meeting started at
 about 12:45 PM.  Present at the meeting were Gillespie, Accident
 Evaluation Division Chief Bassett, Labor Relations Specialist Theresa
 Spearman and two or three branch chiefs.  About 30 to 40 employees in
 the bargaining unit were also present.  There were virtually all the
 employees of the division.  NTEU representative Martin Levy also
 attended.  Prior to the meeting Levy had received from NRC a copy of the
 staffing plan for the reorganized office.
 
    Gillespie chaired the meeting.  He did not introduce Levy.  Gillespie
 informed the employees of the reorganization and stated that there would
 be no adverse actions or any adverse effect upon employees, their grades
 or promotion potential.  Gillespie, in referring to the staffing plan, a
 copy of which had been previously supplied to the employees, stated that
 a zero next to an employee's name didn't mean anything.  He stated it
 was simply a bookkeeping method of providing that a position would not
 be filled once it was vacated.  Gillespie finished his statement and
 then asked for questions.  None were forthcoming. Gillespie advised the
 employees that if they had any comments or suggestions they should route
 them through NTEU.  Levy rose and identified himself by name and NTEU
 position.  Levy began to discuss the zeros in the staffing plan.  As
 soon as he began to speak, Levy was interrupted by Spearman who stated
 that full-time allotment was not a subject of the reorganization and
 Levy would not be permitted to speak about it.  Levy stated that it was
 the first time NTEU and the employees had learned about it and Gillespie
 brought it up so it was a matter of the reorganization.  Levy again
 tried to address this matter and was interrupted again by Spearman.  She
 interrupted Levy five or six times as he attempted to address the zeros
 in the staffing pattern.  Gillespie and the other management officials
 sat there and said nothing.  Levy then dropped that matter and told the
 employees that there were quality groups in each division and they
 advised the Union as to bargaining positions.  Again Spearman
 interrupted Levy about three times saying this was not something covered
 by the reorganization and prevented Levy from explaining the quality
 groups.  Levy, because he was not permitted to discuss the two matters
 described above, finally just told the employees that those who have a
 problem should see the Union steward.  /5/
 
                     Discussion and Conclusions of Law
 
    Section 7114(a)(2)(A) of the Statute provides as follows:
 
              Section 7114.  Representation rights and duties
 
                         . . . .
 
 
    (a)(2) An exclusive representative of an appropriate unit in an
 agency shall be given the opportunity to be represented at --
 
          (A) any formal discussion between one or more representatives
       of the agency and one or more employees in the unit or their
       representatives concerning any grievance or any personnel policy
       or practice or other general condition of employment(.)
 
    In the instant case it is clear that the April 5 and 6, 1984 meetings
 dealt with the reorganization of the Nuclear Research Office which
 involved the physical reassignment of employees from one facility to
 another.  The reorganization involved and affected a "personnel policy
 or practice or other general condition of employment" within the meaning
 of Section 7114(a)(2)(A) of the Statute.  Also, despite NRC's contention
 of the contrary, the two meetings were "discussions" within the meaning
 of Section 7114(a)(2)(A) of the Statute.  Department of Defense,
 National Guard Bureau, Texas Adjutant General's Department, 149th TAC
 Fighter Group, Kelly Air Force Base, 15 FLRA NO. 111 (1984).  In this
 regard, it is further noted that at the conclusion of each meeting
 Gillespie invited questions from the employees present.
 
    It is concluded that both the April 5 and 6, 1984 discussions were
 "formal" within the meaning of Section 7114(a)(2)(A) of the Statute.
 The April 5, 1984 meeting was held in a conference room and two or three
 levels of supervisors were present, including Gillespie the Director of
 the staff, two branch chiefs and section chiefs.  Further, although the
 employees did not recieve advance written notification of the meeting,
 this was admittedly an oversight on NRC's part;  Respondent had intended
 to hold a series of meetings to discuss the reorganization in each of
 the divisions and the April 5 meeting was to be one of this series of
 meetings.  Although there was no "agenda" as such, when notified of the
 meeting the employees were told it was to discuss the reorganization.
 Thus there was in fact an agenda.  This is especially so because, in
 advance of the meeting, the employees had received copies of the
 reorganization plan.  Finally, although the meeting was supposedly
 voluntary, the employees when told about the meeting, were not told it
 was voluntary and that they need not attend.  In the circumstances here
 present, when employees were told that there would be a meeting of the
 Administration and Resource Control Staff concerning the reorganization
 and chaired by the Director of the staff, such a meeting can hardly be
 deemed voluntary, unless the employees were specifically so informed,
 which was not the case herein.  Further, substantially all the employees
 on the staff attended the meeting.  In light of the foregoing, I
 conclude that the April 5 meeting was a formal discussion within the
 meaning of Section 7114(a)(2)(A) of the Statute.  See United States
 Customs Service, Region VIII, San Francisco California, 18 FLRA NO. 27
 (1985), and the cases cited therein.
 
    It is further concluded that the April 6, 1984, meeting was "formal"
 within Section 7114(a)(2)(A) of the Statute.  In addition to the
 presence of all of the indicia present in the April 5 meeting discussed
 above, the employees of the Accident Evaluation Division were notified
 in advance, in writing, of the meeting and that it would concern the
 reorganization.  Again the written announcement of the meeting did not
 state it was a voluntary meeting.  Further in addition to Gillespie,
 present was Director of the Division of Accident Evaluation Sam Bassett,
 Labor Relations Specialist Spearman and two or three branch chiefs.  In
 light of the foregoing it is concluded the April 6, 1984 meeting of the
 Accident Evaluation Division was a formal discussion within the meaning
 of Section 7114(a)(2)(A) of the Statute.  See, United States Customs
 Service, Region VIII, San Francisco, California, supra, and the cases
 cited therein.
 
    With respect to the April 5 meeting NRC notified Union Steward
 Audette of the meeting and NTEU chose not to attend.  NRC fulfilled its
 obligations under Section 7114(a)(2)(A) of the Statute when it notified
 a Union representative of the meeting.  General Counsel of the FLRA's
 argument that notice to Audette was not sufficient is rejected.  Section
 4.2 of the collective bargaining agreement provides that the Union can
 designate those to receive notice of formal meetings.  The record
 establishes that, in writing and under past practice NTEU stewards were
 the appropriate persons to receive such notice of meetings.
 Accordingly, I find with respect to the April 5 meeting NRC did meet all
 its obligations under Section 7114(a)(2)(A) of theStatute and therefore
 it did not violate the Statute with respect to the April 5, 1984
 meeting.
 
    At the conclusion of the April 6 meeting of the Division of Accident
 Evaluation the NTEU Representative, Levy, who had received notice of the
 meeting, was effectively prevented by Spearman from speaking to the
 employees and commenting on the meaning and effect of the staffing plan
 and about the quality groups.  These were both matters discussed,
 directly or indirectly by Gillespies.  Gillespie discussed the meaning
 of the "0" next to employees names on the staffing plan, one of the
 matters Levy attempted to address.  Further Gillespie stated that
 employees should channel their comments to management through the NTEU.
 The quality groups are the means for the employees to communicate with
 NTEU about the local working conditions.
 
    Insofar as Section 7114(a)(2)(A) of the Statute provides that a union
 should be represented at formal discussions, it means more than merely
 to be present, it also means the right to comment, speak and to make
 statements.  I adopt the discussion and reasoning set forth in
 Department of the Treasury, Internal Revenue Service, Clevland, Ohio
 District Office, OALJ 83-60 (1983).  The FLRA has held that such union
 participation does not, however, entitle the Union to take charge of the
 proceedings.  Internal Revenue Service, Fresno Service Center, Fresno,
 California, 7 FLRA 371 (1981).  It is concluded, in light of the
 foregoing, NRC interfered with NTEU's rights to be represented at a
 formal disucssion conducted on April 6, 1984 in the Division Accident
 Evaluation, when it effectively prevented Levy from Speaking.  In so
 doing NRC interfered with NTEU's rights under section 7114(a)(2)(A) of
 the Statute "to be represented at a formal discussion." Accordingly, I
 conclude that Respondent violated Section 7116(a)(1) and (8) of the
 Statute, /8/ and 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 orders that U.S. Nuclear Regulatory Commission shall:
 
    1.  Cease and desist from:
 
          (a) Holding or conducting formal discussions with bargaining
       unit employees without permitting the exclusive bargaining
       representative, the National Treasury Employees Union, to be
       represented at such formal discussions.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of 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) Post as its facilities 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 an
       authorized official and shall be posted and maintained for 60
       consecutive days thereafter in conspicuous places, including all
       bulletin boards and other places where notices are customarily
       posted.  Reasonable steps shall be taken to insure that said
       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 of Region 3, Federal
       Labor Relations Authority, 1111 18th Street, N.W., Room 700, 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 with this Order.
 
                                       /s/ SAMUEL A. CHAITOVITZ
                                       Administrative Law Judge
 
    Dated:  June 26, 1985
    Washington, D.C.
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) The Judge dismissed the section 7116(a)(5) aspect of this
 allegation, citing Department of Defense National Guard Bureau, Texas
 Adjutant Guard's Department, 149th TAC Fighter Group (ANG) (TAC), Kelly
 Air Force Base, 15 FLRA 529, 533 (1984), in which the Authority
 concluded that section 7114(a)(2)(A) of the Statute does not itself give
 rise to an obligation to negotiate and cannot, therefore, form the basis
 of a section 7116(a)(5) violation.
 
    (2) See, e.g., U.S. Customs Service, Region VIII, San Francisco,
 California, 18 FLRA NO. 51 (1985).
 
    (3) After the reorganization the Administration and Resource Control
 Staff had its name changed to the Policy, Planning and Control Staff.
 
    (4) In a communication to "NRC Office Directors and Regional
 Administrators" in March 1982, NTEU Chapter 208 President Jim Thomas
 advised, with respect to formal discussions, " . . . In most cases,
 verbal notice to the steward assigned to your area will be sufficient
 toward meeting this (Section 7(a)(2) of the Statute) requirement."
 
    (5) Audette's recollection is less clear and reliable than Cianci's.
 He does not recall being advised of their April 5 meeting, but does
 recall another April 5 meeting that was apparently held on April 6.
 Generally, I credit Cianci's recollection of the events in so far as
 notifying Audette of the April 5 meeting.
 
    (6) The practice had been that at meetings the Union representat-ve
 should not be assigned to the group involved in the meeting.
 
    (7) In setting forth this description of the April 6, 1984 meeting I
 credit the versions of Levy and the other employees who testified and I
 do not credit Spearman, Gillespie and the other NRC witnesses.  I find
 Levy's recollections were precise and consistent with the surrounding
 circumstances.  I find the NRC witnesses testimony was less reliable and
 precise.
 
 
 
 
 
                                 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-MAAGEMENT
 RELATIONS
 STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT hold or conduct formal discussions with bargaining unit
 employees without permitting the exclusive bargaining representative,
 National Treasury Employees Union, to be represented at such formal
 discussions.
 
    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.
                                       (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.