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

[ v12 p658 ]
The decision of the Authority follows:

 12 FLRA No. 130
                                            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
    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: