Department of Treasury, Bureau of Engraving and Printing (Respondent) and International Brotherhood of Electrical Workers, Local Union 121 (AFL-CIO) (Complainant)  

 1 FLRA No. 69
 
 DEPARTMENT OF TREASURY,
 BUREAU OF ENGRAVING AND PRINTING
 Respondent
 
 and
 
 INTERNATIONAL BROTHERHOOD OF
 ELECTRICAL WORKERS, LOCAL UNION 121
 (AFL-CIO)
 Complainant
 
                                            Assistant Secretary
                                            Case No. 22-9031(CA)
 
                            DECISION AND ORDER
 
    ON MARCH 7, 1979, ADMINISTRATIVE LAW JUDGE BURTON S. STERNBURG ISSUED
 HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
 FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
 PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT
 BE DISMISSED IN ITS ENTIRETY.  NO EXCEPTIONS WERE FILED TO THE
 ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
 
    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 TRANSITION RULES AND REGULATIONS
 (44 F.R. 7).  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 (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
 HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
 HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS
 ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
 CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
 AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS AND RECOMMENDATION.  /1A/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 22-9031(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JUNE 15, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    MS. SALLY KRAUSE MARSHALL
 
    LABOR RELATIONS OFFICER
 
    BUREAU OF ENGRAVING AND PRINTING
 
    15TH & C STREET, S.W.
 
    WASHINGTON, D.C. 20028
 
                            FOR THE RESPONDENT
 
    MR. LAWRENCE HOGAN
 
    INTERNATIONAL REPRESENTATIVE
 
    INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
 
    6812 ELBROOK ROAD
 
    LANHAM, MARYLAND 20801
 
                            FOR THE COMPLAINANT
 
    BEFORE:  BURTON S. STERNBURG
 
    ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    PURSUANT TO A COMPLAINT FILED ON MAY 16, 1978, UNDER EXECUTIVE ORDER
 11491, AS AMENDED, BY LOCAL UNION 121, INTERNATIONAL BROTHERHOOD OF
 ELECTRICAL WORKERS, AFL-CIO, (HEREINAFTER CALLED THE UNION OR
 COMPLAINANT), AGAINST THE DEPARTMENT OF THE TREASURY, BUREAU OF
 ENGRAVING AND PRINTING, (HEREINAFTER CALLED THE RESPONDENT OR ACTIVITY),
 A NOTICE OF HEARING ON COMPLAINT WAS ISSUED BY THE REGIONAL
 ADMINISTRATOR FOR THE PHILADELPHIA, PENNSYLVANIA REGION ON OCTOBER 12,
 1978.
 
    THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTIONS 19(A)(1)
 AND (6) OF THE EXECUTIVE ORDER BY VIRTUE OF ITS ACTIONS IN DENYING
 EMPLOYEE ISAAC STROZIER'S REQUEST FOR UNION REPRESENTATION AT A MEETING
 CALLED FOR PURPOSES OF GIVING MR. STROZIER NOTICE OF A THIRTY DAY
 SUSPENSION.
 
    A HEARING WAS HELD IN THE CAPTIONED MATTER ON FEBRUARY 2, 1979 IN
 WASHINGTON, D.C.  ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
 HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
 BEARING ON THE ISSUES INVOLVED HEREIN.  /1/
 
    UPON THE BASIS OF ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT AND
 CONCLUSIONS.
 
                             FINDINGS OF FACT
 
    THE ACTIVITY IS AN INDUSTRIAL SECURITY PRINTING PLANT RESPONSIBLE FOR
 THE MANUFACTURE OF CURRENCY, POSTAGE STAMPS AND OTHER SECURITY ITEMS FOR
 THE U.S.  GOVERNMENT.  APPROXIMATELY 3,300 PERSONS ARE EMPLOYED.  THERE
 ARE 25 DIFFERENT CRAFTS, A NON-CRAFT GROUP, A CLERICAL/TECHNICAL GROUP,
 AND GUARDS, ORGANIZED INTO 17 BARGAINING UNITS.  FIFTEEN
 LABOR-MANAGEMENT AGREEMENTS ARE IN EFFECT.
 
    LOCAL 121, IBEW, THE COMPLAINANT HEREIN, REPRESENTS APPROXIMATELY 85
 ELECTRICIANS AND STATIONARY ENGINEERS IN SEPARATE UNITS.  THERE ARE
 SEPARATE COLLECTIVE BARGAINING AGREEMENTS FOR BOTH CRAFTS.  THE INSTANT
 COMPLAINT INVOLVES ONLY THE ELECTRICIANS.
 
    ON NOVEMBER 21, 1977, MR. ISAAC STROZIER, AN ELECTRICIAN, HAD AN
 ALTERCATION WITH MR. COOL, ACTING FOREMAN, ELECTRIC SHOP.  THEREAFTER,
 ON NOVEMBER 29, 1977 AND JANUARY 31, 1978, MR. G.W. HALL, SUPERINTENDENT
 OF CONSTRUCTION AND MAINTENANCE, MET WITH MR. STROZIER AND HIS
 DESIGNATED UNION REPRESENTATIVES, MR. CLEM AND MR. HAMLETT, FOR PURPOSES
 OF CONDUCTING "FACT-FINDING MEETINGS."
 
    ON FEBRUARY 17, 1978, AT APPROXIMATELY 1:10 P.M., SUPERINTENDENT HALL
 RECEIVED A MEMORANDUM FROM RESPONDENT'S OFFICE OF INDUSTRIAL RELATIONS
 WHICH AUTHORIZED SUPERINTENDENT HALL TO PRESENT A "NOTICE OF SUSPENSION"
 TO MR. STROZIER FOR HIS ACTIVITIES WITH RESPECT TO FOREMAN COOL ON
 NOVEMBER 21, 1977.  THE MEMORANDUM, WHICH HAD THE "NOTICE OF SUSPENSION"
 ATTACHED, INSTRUCTED SUPERINTENDENT HALL TO SERVE OR DELIVER THE "NOTICE
 OF SUSPENSION" WITHIN 24 HOURS.  INASMUCH AS SUPERINTENDENT HALL WAS
 SCHEDULED TO GO ON ANNUAL LEAVE AT 1:30 P.M., HE IMMEDIATELY CONTACTED
 FOREMAN COOL AND INSTRUCTED HIM TO BRING MR. STROZIER TO HIS OFFICE.
 MR. STROZIER AND FOREMAN COOL APPEARED AT SUPERINTENDENT HALL'S OFFICE
 AT 1:30 P.M.  SUPERINTENDENT HALL INFORMED MR. STROZIER OF THE PURPOSE
 OF THE MEETING AND PROCEEDED IN ACCORDANCE WITH HIS USUAL PRACTICE TO
 READ THE "NOTICE OF SUSPENSION." MR. STROZIER NOTED THAT HE HAD BEEN
 REPRESENTED BY MR.  CLEM AND/OR MR. HAMLETT IN PRIOR MEETINGS CONCERNING
 THE MATTER AND INDICATED THAT HE DESIRED THEIR PRESENCE.  UPON BEING
 INFORMED THAT NEITHER OF THE TWO GENTLEMEN WERE AT WORK AT THE TIME.
 MR. STROZIER MADE NO FURTHER REQUEST FOR ANOTHER UNION REPRESENTATIVE
 WHO WAS AVAILABLE.  THEREAFTER, SUPERINTENDENT HALL MADE IT CLEAR THAT
 HE DID NOT INTEND TO ENTER ANY DISCUSSION CONCERNING THE MERITS OF THE
 "NOTICE OF SUSPENSION" AND MR. STROZIER DECLINED TO FORMALLY ACCEPT THE
 "NOTICE OF SUSPENSION."
 
    ACCORDING TO THE UNCONTROVERTED TESTIMONY OF SUPERINTENDENT HALL,
 DURING THE PAST FIVE YEARS, UNION REPRESENTATIVES HAVE NEVER BEEN
 PRESENT WHEN HE ISSUED APPROXIMATELY FOUR OR FIVE "NOTICE(S) OF FINAL
 DECISION REGARDING SUSPENSION."
 
                        DISCUSSION AND CONCLUSIONS
 
    IN UNITED STATES ARMY TRAINING CENTER ENGINEER AND FORT LEONARD WOOD,
 A/SLMR NO. 787, A CASE INVOLVING FACTS ALMOST IDENTICAL TO THOSE HEREIN,
 THE ASSISTANT SECRETARY AFFIRMED THE ADMINISTRATIVE LAW JUDGE'S DECISION
 AND CONCLUDED THAT A MEETING FOR PURPOSES OF AWARDING A SUSPENSION TO AN
 INDIVIDUAL EMPLOYEE
 
    . . . WAS NOT A 'FORMAL DISCUSSION' WITHIN THE MEANING OF SECTION
 10(E) OF THE ORDER
 
    BECAUSE IT DEALT SOLELY WITH THE INDIVIDUAL CONDUCT OF THE EMPLOYEE
 INVOLVED AND THE
 
    CONSEQUENTIAL MEASURES TO BE TAKEN AGAINST HIM ALONE.  UNDER THESE
 CIRCUMSTANCES, AND FOR THE
 
    REASONS SET FORTH BY THE COUNCIL IN FLRC NO. 75P-2, I AGREE THAT THE
 DENIAL OF REPRESENTATION
 
    AT THE NONFORMAL MEETING HEREIN DID NOT CONSTITUTE A VIOLATION OF
 SECTION 19(A)(1) AND (6) OF
 
    THE ORDER.
 
    IN DEPARTMENT OF DEFENSE, U.S. NAVY, NORFOLK SHIPYARD, FLRC NO.
 71A-141, DECEMBER 28, 1978, THE FEDERAL LABOR RELATIONS COUNCIL
 CONCLUDED THAT UNION REPRESENTATIVES WERE NOT ENTITLED TO PARTICIPATE IN
 FOUR MEETINGS CALLED FOR THE PURPOSE OF SEPARATELY INFORMING EACH OF
 FOUR PROBATIONARY EMPLOYEES THAT THEY WERE BEING DISCHARGED FOR
 "SLEEPING ON THE JOB." ALTHOUGH THE COUNCIL ACCEPTED THE ASSISTANT
 SECRETARY'S CONCLUSION THAT THE MEETINGS WERE "FORMAL," THE COUNCIL
 FOUND, CONTRARY TO THE ASSISTANT SECRETARY, THAT THE MEETINGS DID NOT
 CONCERN "OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS IN THE UNIT"
 AS USED IN SECTION 10(E) OF THE ORDER.  IN REACHING ITS CONCLUSION THE
 COUNCIL STATED:
 
    THUS, THE ISSUE HERE IS ULTIMATELY NARROWED TO WHETHER THE SUBJECT
 MEETINGS CONCERNED
 
    "OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN
 THE UNIT." AS PREVIOUSLY
 
    INDICATED, THE MEETINGS WERE CALLED FOR THE SPECIFIC PURPOSE OF
 NOTIFYING THE FOUR
 
    PROBATIONERS THAT AGENCY MANAGEMENT HAD DECIDED TO TERMINATE THEIR
 EMPLOYMENT.  IN THIS
 
    REGARD, THE INSTANT APPEAL BEARS A SIMILARITY TO THE COUNCIL'S
 LOUISVILLE DECISION, (UNITED
 
    STATES DEPARTMENT OF THE NAVY, NAVAL ORDNANCE STATION, LOUISVILLE,
 KENTUCKY, A/SLMR NO. 400, 3
 
    FLRC 686 (FLRC NO. 74A-54 (OCT. 23 1975), REPORT NO. 87)), WHEREIN
 THE TERMINATION OF AN
 
    EMPLOYEE EXCLUSIVELY REPRESENTED BY A LABOR ORGANIZATION ALSO WAS
 INVOLVED.  IN LOUISVILLE,
 
    AFTER A UNIT EMPLOYEE WAS NOTIFIED OF HIS PROPOSED REMOVAL, THE
 EMPLOYEE'S EXCLUSIVE
 
    REPRESENTATIVE SOUGHT AN EXTENSION OF THE TIME LIMIT SPECIFIED FOR
 REPLY TO THE NOTICE ON THE
 
    GROUND THAT THE EMPLOYEE HAD BEEN HOSPITALIZED, BUT THE REQUEST WAS
 DENIED.  THE COUNCIL,
 
    INTERPRETING THE FIRST SENTENCE OF SECTION 10(E) CONCLUDED THAT AN
 AGENCY'S FAILURE TO
 
    RECOGNIZE A LABOR ORGNIZATION'S STATUS AS AN EMPLOYEE'S
 REPRESENTATIVE IN AN ADVERSE ACTION
 
    PROCEEDING, UNTIL THE EMPLOYEE DESIGNATES ANOTHER REPRESENTATIVE,
 DOES NOT CONSTITUTE AN
 
    UNFAIR LABOR PRACTICE.  IN ITS DECISION (3 FLRC 686 AT 691), THE
 COUNCIL RULED THAT ADVERSE
 
    ACTION PROCEEDINGS, "WHICH ARE FUNDAMENTALLY PERSONAL TO THE
 INDIVIDUAL AND ONLY REMOTELY
 
    RELATED TO THE RIGHTS OF THE OTHER UNIT EMPLOYEES, ARE NOT
 AUTOMATICALLY WITHIN THE SCOPE OF
 
    THE EXCLUSIVE REPRESENTATIVE'S 10(E) RIGHTS, WHICH ARE PROTECTED BY
 THE ORDER." SIMILARLY, IN
 
    THE INSTANT CASE, WHILE THE EMPLOYEES INVOLVED ARE PROBATIONARY
 EMPLOYEES POSSESSING LIMITED
 
    STATUTORY APPEAL RIGHTS (RATHER THAN THE CAREER EMPLOYEE IN
 LOUISVILLE), THE SUBJECT OF THE
 
    MEETINGS IN BOTH CASES WAS NEVERTHELESS "FUNDAMENTALLY PERSONAL TO
 THE INDIVIDUAL(S) AND ONLY
 
    REMOTELY RELATED TO THE RIGHTS OF THE OTHER UNIT EMPLOYEES." AS SUCH,
 IN THE
 
    COUNCIL' OPINION, THE MEETINGS MAY NOT PROPERLY BE FOUND TO CONCERN
 "OTHER MATTERS AFFECTING
 
    GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT" WITHIN THE
 MEANING OF SECTION 10(E) OF
 
    THE ORDER.
 
    ACCORDINGLY, AS THE "FORMAL DISCUSSIONS" HEREIN DID NOT CONCERN
 "GRIEVANCES, PERSONNEL
 
    POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING
 CONDITIONS OF EMPLOYEES IN
 
    THE UNIT" UNDER THE LAST SENTENCE OF SECTION 10(E), THE EXCLUSIVE
 REPRESENTATIVE HAD NO RIGHT
 
    GUARANTEED BY THE ORDER TO BE REPRESENTED AT THE MEETINGS IN
 QUESTION, AND THE INDIVIDUAL
 
    PROBATIONARY EMPLOYEES THEREFORE HAD NO DERIVATIVE RIGHT TO UNION
 REPRESENTATION IN THE
 
    CIRCUMSTANCES OF THIS CASE.  CONSEQUENTLY, THE ASSISTANT SECRETARY'S
 CONCLUSION THAT THE
 
    ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER HEREIN BY
 DENYING UNION REPRESENTATION
 
    TO FOUR PROBATIONARY EMPLOYEES, BASED UPON HIS INTERPRETATION OF THE
 REQUIREMENTS OF SECTION
 
    10(E), IS INCONSISTENT WITH THE PURPOSES AND POLICIES OF THE ORDER
 AND MUST BE SET ASIDE.
 
    INASMUCH AS THE MEETING INVOLVED IN THE INSTANT PROCEEDING WAS
 CONCERNED SOLELY WITH MR. STROZIER'S INDIVIDUAL SUSPENSION AND BORE NO
 RELATION TO THE RIGHTS OF THE OTHER UNIT EMPLOYEES, I AM CONSTRAINED TO
 FIND, IN ACCORDANCE WITH THE AFORECITED AUTHORITIES, THAT RESPONDENT'S
 ALLEGED FAILURE TO ACCORD MR. STROZIER UNION REPRESENTATION AT THE
 FEBRUARY 17, 1978, MEETING WAS NOT VIOLATIVE OF SECTIONS 19(A)(1) AND
 (6) OF THE ORDER.  ACCORDINGLY, AND IN THE ABSENCE OF ANY EVIDENCE THAT
 THE ALLEGED DENIAL OF REPRESENTATION WAS CONTRARY TO AN ESTABLISHED
 PRACTICE, I SHALL ORDER THAT THE COMPLAINT BE DISMISSED.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT BE, AND IT HEREBY IS,
 DISMISSED.
 
                            BURTON S. STERNBURG
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  MARCH 7, 1979
 
    WASHINGTON, D.C.
 
    BSS:LE
 
    /1A/ IN CONFORMITY WITH SECTION 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 NEW 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 IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    /1/ ALTHOUGH COUNSEL FOR THE RESPONDENT IN HER OPENING STATEMENT
 ALLUDED TO A POSSIBLE 19(D) DEFENSE PREDICATED UPON THE FACT THAT MR.
 STROZIER HAD ELECTED TO APPEAL HIS SUSPENSION TO THE FEDERAL EMPLOYEE
 APPEALS AUTHORITY, NO EVIDENCE BEARING THEREON WAS FORMALLY SUBMITTED
 DURING THE HEARING.  ACCORDINGLY, THE MERITS OF THE ALLEGED 19(D)
 DEFENSE WILL NOT BE ADDRESSED IN THE INSTANT DECISION.