44:0370(30)CA - - Nuclear Regulatory Commission, Washington, DC and NTEU and NTEU Chapter 208 - - 1992 FLRAdec CA - - v44 p370

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[ v44 p370 ]
44:0370(30)CA
The decision of the Authority follows:


44 FLRA No. 30

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. NUCLEAR REGULATORY COMMISSION

WASHINGTON, D.C.

(Respondent)

and

NATIONAL TREASURY EMPLOYEES UNION

AND

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 208

(Charging Party/Union)

3-CA-00074

DECISION AND ORDER

March 13, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the General Counsel and the Union to the attached decision of the Administrative Law Judge. The Respondent filed an opposition to the General Counsel's and the Union's exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1), (3), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) when a supervisor participated in Union Executive Board meetings, thereby sponsoring, controlling, or otherwise assisting the Union and failing to comply with the provisions of section 7120(e) of the Statute. The Judge found that the complaint was barred by section 7118(a)(4) of the Statute and recommended that the complaint be dismissed.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings and conclusions and, for the reasons that follow, we adopt the Judge's recommendation that the complaint be dismissed.

II. Facts

The facts of this case are fully set forth in the Judge's decision and are summarized below.

George Barber, a GS-15 Reactor Systems Engineer, was Executive Vice-President of the Union from at least May 7, 1989, until August 24, 1989, when he resigned from the Union. In that position, Barber "had significant labor management responsibilities." Judge's Decision at 4.

On May 7, 1989, the Respondent detailed Barber temporarily to the supervisory position of Chief of the Generic Activities Integration Section ("Section Chief"). The detail to the Section Chief position ended on July 7, 1989, when the incumbent of that position resumed his duties.

Between May 7 and July 7, 1989, while serving as Section Chief, Barber attended Union Executive Board meetings, other meetings with Union officials, and a Union-sponsored meeting with unit employees. At those meetings, Barber participated in discussions concerning the purchase of office equipment for the Union office, mandatory training for employees, proposals related to scheduled bargaining sessions with management, and the establishment of a "whistle-blower fund." Id.

After he resigned from the Union on August 24, 1989, Barber "attempted to form a non-profit employee association to represent the interests of the unit employees." Id. at 5. On September 25 and October 20, 1989, Barber "addressed 'Open Letters' to all 'NRC Professionals' wherein he severely criticized the Union." Id.

On November 9, 1989, the Union filed an unfair labor practice charge alleging that the Respondent had violated section 7116(a)(1), (2), and (3) of the Statute. The charge stated as its basis the following:

Mr. George Barber, G[S]-15 Section Chief technical assistant[,] prepared and circulated a memorandum to NRC Professionals on September 25, 1898 [sic] and October 20, 1989 which was highly critical of NTEU and solicited employees to organize and join a rival organization at NRC. (see Attachments I and II) On August 24, 1989 Mr. Barber advised the NRC Chapter 208 Executive Board that he would be attempting to get Chapter 208 members to sign dues revocation forms. Mr. Barber there after [sic] circulated SF-1188's to approximately eight chapter members who subsequently withdrew from the union at his request. Mr. Barber was a supervisor/management when he instigated the above actions. For this reason the Agency, through Mr. Barber, its agent, has violated section (a)(1), (a)(2) and (a)(3) by discouraging membership in a labor organization and sponsoring and assisting an alternative labor organization.

General Counsel's Exhibit 1(a).

On January 24, 1990, the Union filed an amended charge. The amended charge stated as its basis the following:

Mr. George Barber, GS-15 Section Chief technical assistant prepared and [c]irculated a memorandum to BRC [sic] Professionals on September 25, 1989 and October 20, 1989 which was highly critical of NTEU and solicited employees to organize and join a rival organization at NRC. (See Attachments I and II) On August 24, 1989 Mr. Barber advised the NRC Chapter 208 Executive Board that he would be attempting to get Chapter 208 members to sign dues revocation forms. Mr. Barber there after [sic] circulated SF-1188's to approximately eight chapter members who subsequently withdrew from the union at his request. Mr. Barber was a supervisor/management when he instigated the above actions. Fri [sic] this reason the Agency, through Mr. Barber, its agent, has violated section (a)(1), (a)(2), (a)(3) and (a)(8) of the statute [and 5 U.S.C. 7121 (e)](1) by discouraging membership in a labor organization and sponsoring and assisting an alternative labor organization. Mr. Barber also attended meetings as an officer of NTEU and participated in decisions on important union issues such as the union's position on drug testing negotiations while a supervisor. Mr. Barber participated in Union meeting[s] on June 4, July 5 and August 2. Mr. Barber also nominated himself to be a delegate to the Union's National Convention while a supervisor.

General Counsel's Exhibit 1(c) (footnote added).

Subsequently, the General Counsel issued a complaint which, as amended at the hearing before the Judge, alleged that: (1) Barber was temporarily promoted to the position of Section Chief on or about May 7, 1989; (2) Section Chief Barber participated in Union Executive Board meetings held on June 7, July 5, and August 2, 1989; (3) on two other dates in June, Section Chief Barber participated in Union meetings which involved unit employees' conditions of employment; and (4) on or about August 13, 1989, Section Chief Barber was reassigned to the position of Technical Assistant. The complaint further alleged that by Barber's actions, the Respondent committed unfair labor practices in violation of section 7116(a)(1), (3), and (8) of the Statute by: (1) interfering with the exercise of employees' rights under section 7102 of the Statute; (2) sponsoring, controlling or otherwise assisting the Union; and (3) refusing to comply with the provisions of section 7120(e) of the Statute.

III. Administrative Law Judge's Decision

The Judge found that the complaint was barred by section 7118(a)(4) of the Statute.(2) The Judge stated that under section 7118(a)(4), absent a showing that the incident or activity underlying the unfair labor practice charge was concealed from the Union or that management's failure to perform a duty prevented the Union from filing the charge, the charge must be filed within 6 months from the date of the events underlying the charge.

The Judge noted that the original unfair labor practice charge, filed on November 9, 1989, was filed less than 6 months after Barber's attendance at Union meetings in May, June and early July, when he was in a supervisory position. The Judge found, however, that the original charge did not address Barber's "participation in union affairs on the crucial dates but rather only challenged his actions in October of 1989 in attempting to oust the Union and substitute an association in its place." Id. at 9. The Judge further noted that the original charge "was limited solely to Mr. Barber's activity, while an alleged management official, in directing several letters to employees in an attempt to oust the Union and substitute an association in its place." Id. The Judge found that the original charge "did not allege any other activities on Mr. Barber's part or a general pattern or practice on his part to oust the Union or participate in its operation while he held the position of a management official." Id. (emphasis in original).

The Judge found that the amended charge, filed on January 24, 1990, restated the content of the original charge and "for the first time alleged that Mr. Barber, while a management official, i.e. Acting Chief, participated in various [U]nion meetings held in May, June, July and August 1989." Id. at 10. The Judge stated that although both of Barber's alleged actions--"attempting to oust the Union and participating in [U]nion matters while a management official"--involved an alleged violation of the same section of the Statute, they were not "sufficiently related to be encompassed within the timely filed November 1989 charge." Id. Rather, the Judge found that "the participation in the operation of a union and an attempt to oust the Union are two separate and distinct activities." Id.

In these circumstances, the Judge concluded "that the allegations of the complaint which were first raised in the amended unfair labor practice charge filed on January 24, 1990, are barred by [s]ection 7118(a)(4) of the Statute since they are based upon events occurring more than six months prior to the filing of the amended charge." Id. (footnote omitted). In this regard, the Judge noted that the amended charge of January 24, 1990, would only cover the activities commencing on July 24, 1989, and that the record evidence and credited testimony established that Barber held the position of Section Chief only until July 7, 1989. Therefore, the Judge did not consider the allegations of the amended charge as to the meetings that occurred after July 7, 1989. The Judge noted that in Millwright and Machinery Erectors, Local Union 720, United Brotherhood of Carpenters and Joiners of America (Stone and Webster Engineering), 274 NLRB 1506, reversed on other grounds, 798 F.2d 781 (5th Cir. 1986) (Stone & Webster), the National Labor Relations Board (NLRB) "reached a similar conclusion with respect to the application of [s]ection 10(b) of the National Labor Relations Act, which like [s]ection 7118(a)(4) restricts the prosecution of complaints to charges which are based on events occurring within the six-month period preceding the filing of the charge." Id.

The Judge also found that "[t]o the extent that the General Counsel contends that Mr. Barber's detail to the position of Acting Chief was somehow concealed from the Union . . . the record evidence fails to support such contention." Id. The Judge stated that "[m]oreover, and in any event, since the Union admittedly discovered the fact [of Barber's detail] during October 1989, which was within the six-month period, the six-month limitation in the Statute would not have been tolled by such concealment. Department of Labor and Susan Wuchinich et al., 20 FLRA 296" (DOL). Id. The Judge recommended that the complaint be dismissed in its entirety.

Finally, the Judge noted that but for the fact that the complaint was based upon an alleged unfair labor practice occurring more than 6 months before the filing of the charge in this case, he "would find that Mr. Barber did indeed participate in the affairs of the Union while holding the position of Acting Chief . . . [and] that by virtue of such activities by Mr. Barber the Respondent violated [s]ections 7116(a)(1), (3) and (8) of the Statute." Id. at 11 n.6.

IV. Positions of the Parties

A. General Counsel's Exceptions

The General Counsel excepts to the Judge's conclusions that: (1) the amended charge was not sufficiently related to the timely filed original charge to be encompassed within the original charge; and (2) because the Union discovered the unfair labor practice within the 6-month statutory limitation period, it was not entitled to a full 6 months to file a charge from the date of discovery even though the Respondent had a duty to inform the Union that Barber had been detailed to a supervisory position.

As to the first exception, the General Counsel asserts that both the original charge and the amended charge set forth conduct by Barber that, if proved, would violate section 7116(a)(1), (3) and (8) of the Statute. The General Counsel states that "[i]t ultimately turned out that Barber, while acting as a Section Chief for Respondent, participated in other unlawful activity at different times . . . and those actions are what the amended charge added to the original charge, plus specifying that the conduct complained of also violated section 7116(a)(8) of the Statute (i.e., 7120(e))." General Counsel's Exceptions at 3. The General Counsel argues that the original and amended charges involved "intertwined actions" of Barber and are "clearly close enough for the purposes of filing a charge and amended charge to put Respondent on notice as to what activity Acting Section Chief Barber was involved in." Id. The General Counsel also contends that the Respondent was not prejudiced by the filing of the amended charge and that the fact "[t]hat the amended charge raised certain particular events not specifically enumerated in the original charge is without consequence" because the violations arose out of the same course of conduct and the same sequence of events. Id. at 7.

As to the second exception, the General Counsel argues that even assuming that the amended charge was not closely related to the original charge, the Judge should have concluded that the amended charge was timely filed. Noting that the Union first learned of Barber's detail to Acting Section Chief in October 1989, the General Counsel asserts that the Judge erred in concluding, under DOL, that inasmuch as the Union "learned of the alleged violative conduct within the six-month statutory period, it had only the remainder of the six-month period to file a charge, not a full, fresh six-months from date of discovery." Id. at 9 (emphasis in original). The General Counsel urges the Authority to reverse DOL because it deprives a charging party of a full 6-month period from the time of discovery of an unfair labor practice violation and imposes "an artificially circumscribed and fundamentally unfair period of time" to file a charge upon discovery. Id.

The General Counsel further argues that, if the Authority does not choose to reverse DOL, it should nonetheless find, consistent with section 7120(e) of the Statute, that: (1) the Respondent had a duty to inform the Union of Barber's detail; (2) the Respondent failed to do so; (3) the 6-month period began to run in October 1989, when the Union discovered the detail; and (4) the amended charge of January 24, 1990, was, therefore, timely filed.

In sum, the General Counsel urges the Authority to reverse the Judge's finding that the complaint was barred by section 7118(a)(4) of the Statute and to adopt the Judge's finding that, but for the timeliness issue, the Respondent violated section 7116(a)(1), (3) and (8) of the Statute.

B. Union's Exceptions

The Union excepts to the Judge's finding that the amended charge was untimely because it was not sufficiently related to the original charge so as to be encompassed within it. The Union argues that the Judge erred in finding that the amended charge and the original charge allege separate and distinct actions. The Union contends that "Barber's participation in Union meetings and his attempts to oust the Union arose out of the same course of conduct[,]" had "the same effect of jeopardizing the integrity of the bargaining unit[,]" and "were extreme actions to undermine the Union." Union's Exceptions at 7.

The Union argues that, under Authority and NLRB precedent, an amended charge may contain additional allegations of unfair labor practices as long as the additional allegations "bear a relationship to the charge and are closely related to events providing the basis for the charge." Id. at 9. The Union contends that because it did not learn of Barber's earlier actions until after the filing of the original charge, "it would be inherently inequitable to penalize the Union because of an overly technical reading of the case" and the statutory time limit should, therefore, be waived on equitable grounds. Id. at 11.

The Union requests the Authority to find that the Respondent violated the Statute as alleged in the complaint and issue an appropriate remedial order, including an order directing the Respondent "to compensate NTEU for all attorney fees incurred as a result of the Agency's illegal acts." Id. at 13.

C. Respondent's Opposition

The Respondent contends that the Judge correctly found that the original charge and the amended charge were separate and distinct. According to the Respondent, the charges raised entirely different causes of action and involved two separate activities that occurred at separate times. The Respondent asserts that the amended charge for the first time alleged a violation of section 7120(e) of the Statute.

The Respondent further contends that the amended charge is not closely related to the original charge and, therefore, is not encompassed within it. The Respondent argues that, "contrary to the General Counsel's view, it is not sufficient to simply claim that the different acts are closely related because they violate the same section of the Statute." Respondent's Opposition at 6 (footnote omitted). The Respondent contends that the Judge's finding that the participation in the operation of the Union and an attempt to oust the Union are separate and distinct activities is fully supported by Authority and NLRB precedent. The Respondent also argues that "to allow what the exceptions seek would be to permit a relation back to the allegations in the [original] charge which were determined to have no merit by the General Counsel by their omission from the complaint . . . ." Id. at 10.

Additionally, the Respondent argues that the Judge correctly found that the Respondent did not violate either section 7118(a)(4)(B)(i) or section 7118(a)(4)(B)(ii) of the Statute. The Respondent contends that, as found by the Judge, it was under no duty to inform the Union that Barber had left the bargaining unit in order to be detailed to a supervisory position. The Respondent argues that even if it had such a duty, it fulfilled that duty because Union officials were notified of the detail. The Respondent further asserts that the Judge correctly found that the Respondent did not conceal Barber's detail.

The Respondent next contends that, even if it had failed to notify the Union or had concealed Barber's detail from the Union, the complaint is nonetheless barred because the Union admittedly discovered the alleged unfair labor practice less than 6 months from the time the actions occurred but did not file the amended charge within the statutory period. The Respondent asserts that the Judge correctly found that the Authority's decision in DOL is controlling in this regard.

Further, the Respondent disputes the Union's claim that equitable principles require the Authority to waive the statutory time limit in this case. According to the Respondent, this case is "far from the type of situation where equitable principles would warrant waiving the statutory requirement for timeliness." Id. at 17.

Finally, the Respondent takes issue with the Judge's statement that if the complaint were not barred by section 7118(a)(4) of the Statute, he would find that the Respondent committed the unfair labor practices alleged in the complaint. The Respondent states that "because of the lack of timeliness, [the Judge] should not have so speculated because he did not have a valid complaint in front of him from which to rule upon the merits." Id. at 19-20. The Respondent further contends that even assuming that Barber attended Union meetings during the time that he was a supervisor, that attendance did not constitute an unfair labor practice. The Respondent asserts, among other things, that inasmuch as it had no knowledge of Barber's attendance at Union meetings, it cannot be found to have committed an unfair labor practice.

V. Analysis and Conclusions

The threshold issue in this case is whether the amended charge was timely filed under section 7118(a)(4) of the Statute. For the following reasons, we find, in agreement with the Judge, that the amended charge was not timely filed and, therefore, the complaint in this case must be dismissed.

A. The Allegations of the Amended Unfair Labor Practice Charge Were Not Encompassed within the Allegations of the Original Charge

Where an unfair labor practice complaint is based on an amended charge, the amended charge will be considered timely filed under section 7118(a)(4) of the Statute if the amended charge is: (1) "closely related to events or matters complained of in the charge"; and (2) based "on events occurring within the 6-month period preceding the charge . . . ." United States Department of Veterans Affairs, Washington, D.C., Veterans Administration Medical Center, Amarillo, Texas, 42 FLRA 333, 340 (1991).

The original charge in this case contained allegations only as to Barber's attempts in September and October 1989 to oust the Union. The amended charge repeated those allegations and added new allegations as to Barber's participation in the operation of the Union in June, July, and August 1989. The Judge found that the additional allegations of the amended charge concerned actions by Barber that were separate and distinct from, and not closely related to, the actions or events complained of in the original charge. Therefore, the Judge found that the additional allegations of the amended charge were not encompassed within the original charge.

We agree with the Judge's finding that "the participation in the operation of a union and an attempt to oust the Union are two separate and distinct activities." Judge's Decision at 10. The fact that both the original and the amended charges allege a violation of some of the same sections of the Statute does not mean that the allegations of the two charges are closely related. Unlike the amended charge, the original charge did not address in any way, or allege any examples of, Barber's participation in Union affairs in June, July, and August of 1989. Rather, the original charge challenged only Barber's actions in September and October 1989 when he was a unit employee and, through letters to employees, attempted to oust the Union and replace it with an association. Thus, in our view, Barber's allegedly improper participation in the operation of the Union while a supervisor is not closely related to his allegedly improper assistance to a rival organization in attempting to oust the Union, and did not arise out of the same incidents or course of conduct. See, for example, Immigration and Naturalization Service, Washington, D.C., 4 FLRA 787 (1980) (where the Authority adopted the Judge's finding that an amended charge constituted a wholly different allegation of unfair labor practices than encompassed by the original charge); Stone & Webster, 274 NLRB at 1507; Allied Industrial Workers, Local 594, 227 NLRB 1541 (1977); and Knickerbocker Mfg. Co., 109 NLRB 1195, 1196-97 (1954).

Accordingly, we find that the allegations of the amended charge in this case are not closely related to the events complained of in the original charge. Therefore, the allegations of the amended charge were not encompassed within the timely filed original charge.

B. There Was No Concealment from the Union or Failure by the Respondent to Perform a Duty

The amended charge may still be found timely if it is shown that the Respondent concealed Barber's detail from the Union or that the Respondent had a duty to inform the Union of Barber's detail and had failed in that duty. Even if concealment or a failure to comply with a duty is shown, the amended charge would be timely only if the Respondent's concealment or failure to comply with a duty prevented the Union from filing the amended charge within six months of the alleged events.

The General Counsel argues that the Respondent had a duty to inform the Union of Barber's detail to a supervisory position, but did not inform the Union. The General Counsel and the Union contend that the Union did not discover Barber's detail until October 1989.

Although the Judge noted the testimony of the Respondent's Chief of Labor Relations that "he was unaware of any requirement that management must submit a report to the Union 'when there is a detail of union personnel[,]'" the Judge did not make a specific finding as to whether the Respondent had a duty to notify the Union of Barber's detail to a supervisory position. Judge's Decision at 7. The Judge found that "to the extent that the General Counsel contends that Mr. Barber's detail to the position of Acting Chief was somehow concealed from the Union . . . the record evidence fails to support such contention." Id. at 10. The Judge concluded that the complaint was barred by section 7118(a)(4) of the Statute.

We find that the General Counsel has failed to demonstrate that the Respondent had a duty to inform the Union of Barber's detail to a supervisory position. We also find that it has not been shown that the Respondent concealed Barber's detail from the Union, or prevented the Union from knowing of the alleged unlawful activity that formed the basis of the amended charge. Therefore, as the Union was not prevented from knowing of the alleged unlawful activity, we find no merit in the Union's assertion that dismissal of the complaint is inequitable.

C. The Complaint Must Be Dismissed

We have found that: (1) the allegations of the amended charge were not encompassed within the allegations of the original charge; (2) there has been no showing that the Respondent had a duty to inform the Union of Barber's detail to a supervisory position; and (3) the Respondent did not prevent the Union from discovering Barber's status as a supervisor. Therefore, the amended charge, to be timely, must have been filed within 6 months after July 7, 1989, the latest of Barber's actions while he still was a supervisor. The amended charge, however, was not filed until January 24, 1990, and was untimely. Consequently, the complaint, based on the amended charge, was barred by section 7118(a)(4) of the Statute, and we will dismiss the complaint.

In view of our dismissal of the complaint on the basis stated above, we specifically do not address the Judge's alternative findings regarding: (1) whether, under DOL, the amended charge in this case would have been timely if the Union had been prevented from learning of Barber's actions until October 1989; and (2) the merits of the complaint's allegations. Also, in view of the dismissal of the complaint, we deny the Union's request for attorney fees.

VI. Order

The complaint is dismissed.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The brackets appeared in the amended charge. It is clear from the record in this case that the intended reference is 5 U.S.C. § 7120(e).

2. Section 7118(a)(4) of the Statute provides:

(A) Except as provided in subparagraph (B) of this section, no complaint shall be issued based on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority.

(B) If the General Counsel determines that the person filing any charge was prevented from filing the charge during the 6-month period referred to in subparagraph (A) of this paragraph by reason of--

(i) any failure of the agency or labor organization against which the charge is made to perform a duty owed to the person, or

(ii) any concealment which prevented discovery of the alleged unfair labor practice during the 6-month period,

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