12:0658(130)CA - Energy and Local 2195, AFGE -- 1983 FLRAdec CA

 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.