[ v12 p658 ]
The decision of the Authority follows:
12 FLRA No. 130 DEPARTMENT OF ENERGY Respondent and LOCAL 2195, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Complainant Assistant Secretary Case No. 22-09580(CA) DECISION AND ORDER This matter is before the Authority pursuant to the Acting Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations. The functions of the Assistant Secretary of Labor for Labor-Management Relations, under Executive Order 11491, as amended, were transferred to the Authority under section 304 of Reorganization Plan No. 2 of 1978 (43 F.R. 36040), which transfer of functions is implemented by section 2400.2 of the Authority's Rules and Regulations. The Authority continues to be responsible for the performance of these functions as provided in section 7135(b) of the Federal Service Labor-Management Relations Statute (the Statute). Upon consideration of the entire record in this case, including the parties' contentions, the Authority finds: On February 20, 1971, Local 2195, American Federation of Government Employees, AFL-CIO (the Union) became the exclusive representative for a unit of professional and nonprofessional employees at the Headquarters of the Atomic Energy Commission (AEC). Pursuant to the Energy Reorganization Act of 1974, the AEC was abolished, and the Energy Research and Development Administration (ERDA) and the Nuclear Regulatory Commission (NRC) were created. In 1974, ERDA and the Union entered into a collective bargaining agreement, which was renewed in 1975. Pursuant to the Department of Energy Reorganization Act of 1977, ERDA was abolished on September 30, 1977, and all ERDA employees were transferred to the newly-created Department of Energy (the Respondent). At the same time, employees from the Federal Energy Administration (FEA), the Federal Power Commission (FPC), and groups of employees from other agencies were transferred to the Respondent. Due to the commingling of employees from several bargaining units, the parties herein, as well as the National Treasury Employees Union (NTEU), which had represented FEA employees, filed three petitions jointly, all of which expressed a good faith doubt as to the appropriateness of the units which had existed at the Respondent's predecessor agencies. While these petitions were pending, the Union continued to represent DOE employees and was accorded by the Respondent all rights established by its 1975 contract with ERDA. On October 13, 1978, pursuant to Executive Order 11491, as amended, the Assistant Secretary of Labor for Labor-Management Relations found that the FEA and ERDA headquarters bargaining units had ceased to be appropriate as a result of the 1977 reorganization, and that a new unit consisting of all the Respondent's headquarters employees, excluding the employees of the Federal Regulatory Commission (FRC), would be appropriate. He directed an election in the new unit. U.S. Department of Energy, 8 A/SLMR 1150. On October 20, 1978, the Respondent informed the Union that its 1975 collective bargaining agreement covering ERDA employees was terminated as a result of the Assistant Secretary's decision. As a consequence, dues withholding was discontinued and the Union lost the use of official time and official services and facilities for labor relations purposes, including the use of bulletin boards, office space, and inter-office mail. On November 8, 1978, the Union filed a motion for a temporary restraining order and permanent injunction in the U.S. District Court for the District of Columbia. The motion for a temporary restraining order was denied by Judge Oliver Gasch on November 13, 1978, and the Union's request for injunctive relief also was denied by Judge Gasch in a decision dated December 7, 1978. (American Federation of Government Employees, Local 3765 v. Schlesinger, No. 78-2129.) Thereafter, the instant unfair labor practice complaint was filed by the Union alleging that the Respondent violated section 19(a)(1), (2), (5) and (6) of Executive Order 11491, as amended, by unilaterally terminating the parties' collective bargaining agreement. Following the Regional Director's issuance of a notice of hearing, the parties entered into a stipulation of facts and the case was thereafter transferred to the Authority for decision. A preliminary issue is raised by the Respondent's contention that the District Court's December 7, 1978 denial of the Union's request for injunctive relief is res judicata, thereby preventing the Authority from making a finding on the merits herein. The Authority rejects this contention. The only question before the District Court was whether the Respondent's cancellation of the Union's representational and contractual privileges constituted a sufficient basis for a preliminary injunction and permanent declaratory and injunctive relief. The District Court did not resolve the question of whether the Respondent's conduct constituted an unfair labor practice in violation of section 19(a)(1), (2), (5) and (6) of Executive Order 11491, as amended, as alleged in the complaint before the Authority. Indeed, this question must be resolved solely by the Authority inasmuch as those matters still pending before the Assistant Secretary of Labor for Labor-Management Relations at the time the Statute became effective were transferred to the Authority for decision, as noted above. With respect to the merits of the unfair labor practice complaint, the Authority concludes that the Respondent acted in violation of section 19(a)(1) and (5) of the Executive Order, as alleged. Thus, the Authority previously held in a case decided under the Executive Order, U.S. Department of the Navy, Naval Air Engineering Center, Lakehurst, New Jersey, 3 FLRA 568 (1980), that following a reorganization and during the pendency of a representation petition, as here, an agency must continue to recognize the exclusive representative and adhere to the terms of any prior negotiated agreement to the maximum extent possible, until any questions concerning representation raised by virtue of the reorganization have been resolved. In the present case, the stipulated record makes it clear that the Respondent withdrew recognition from the Union and failed to adhere to the requirements of its negotiated agreement with the Union to the maximum extent possible in violation of section 19(a)(1) and (5) of the Order, upon its receipt of the Assistant Secretary's decision in U.S. Department of Energy, 8 A/SLMR 1150 (1978), but prior to final resolution of the representation issues raised therein. /1/ ORDER /2/ Pursuant to section 2400.2 of the Rules and Regulations of the Federal Labor Relations Authority and section 7135 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that the Department of Energy shall: 1. Cease and desist from: (a) Refusing to accord appropriate recognition to a lawfully designated exclusive representative of its employees, after a reorganization and during the pendency of a representation matter, and refusing to adhere to the terms of its negotiated agreement with the exclusive representative, to the maximum extent possible, until the representation matter is resolved. (b) In any like or related matter interfering with, restraining, or coercing its employees in the exercise of their rights assured by Executive Order 11491, as amended. 2. Take the following affirmative action in order to effectuate the purposes and policies of Executive Order 11491, as amended: (a) After a reorganization and during the pendency of a representation matter, maintain recognition of any exclusive representative of its employees, and adhere to the terms of any prior collective bargaining agreement, to the maximum extent possible, until the representation matter is resolved. (b) Post at its Washington, D.C. headquarters 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. (c) 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 herewith. Issued, Washington, D.C., August 25, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT refuse to accord appropriate recognition to a lawfully designated exclusive representative of our employees, after a reorganization and during the pendency of a representation matter, and refuse to adhere to the terms of our negotiated agreement with the exclusive representative, to the maximum extent possible, until the representation matter is resolved. WE WILL NOT in any like or related matter interfere with, restrain or coerce our employees in the exercise of their rights assured by Executive Order 11491, as amended. WE WILL, after a reorganization and during the pendency of a representation matter, maintain recognition of any exclusive representative of our employees, and adhere to the terms of any prior collective bargaining agreement, to the maximum extent possible, until the representation matter is resolved. (Agency) Dated: . . . By: (Signature) (Title) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance a with its provisions, they may communicate directly with the Regional Director, Region III, Federal Labor Relations Authority, whose address is: P.O. Box 33758, Washington, D.C. 2033-0758, and whose telephone number is: (202) 653-8507. --------------- FOOTNOTES$ --------------- /1/ In view of the foregoing conclusion, the Authority finds it unnecessary to decide whether the Respondent also violated section 19(a)(2) and (6) of the Order, as alleged. /2/ In conformity with Sec. 902(b) of the Civil Service Reform Act of 1978 (92 Stat. 1224), the present case is decided solely on the basis of E.O. 11491, as amended, and as if the Federal Service Labor-Management Relations Statute (92 Stat. 1191) had not been enacted. The decision and order does not prejudge in any manner either the meaning or application of related provisions of the Statute or the result which would be reached by the Authority if the case had arisen under the Statute rather than the Executive Order.