[ v03 p656 ]
03:0656(106)CA
The decision of the Authority follows:
3 FLRA No. 106
DEPARTMENT OF TREASURY
INTERNAL REVENUE SERVICE
CLEVELAND, OHIO
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES
UNION CHAPTER 44
Labor Organization
Case No. 5-CA-165
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING, ISSUED
HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD NOT
ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT AND
RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
THEREAFTER, THE GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS AUTHORITY
FILED EXCEPTIONS AND A SUPPORTING BRIEF WITH RESPECT TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER, AND THE
RESPONDENT FILED AN ANSWERING BRIEF THERETO.
PURSUANT TO SEC. 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS (5
C.F.R. 2423.29(1980)) AND SEC. 7118 OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135), 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 THE
SUBJECT CASE, INCLUDING THE GENERAL COUNSEL'S EXCEPTIONS AND SUPPORTING
BRIEF AND THE RESPONDENT'S ANSWERING BRIEF, THE AUTHORITY HEREBY ADOPTS
THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS.
THE ADMINISTRATIVE LAW JUDGE DETERMINED THAT THE EVIDENCE ESTABLISHED
THAT THE PAST PRACTICE OF ALLOWING THE UNION OFFICIALS USE OF
RESPONDENT'S TYPEWRITERS AND PHOTOCOPYING EQUIPMENT HAD BEEN EFFECTIVELY
PROHIBITED BY THE RESPONDENT AT THE TOLEDO POST OF DUTY. IN SO FINDING,
THE ADMINISTRATIVE LAW JUDGE RELIED UPON SEVERAL INCIDENTS WHICH
OCCURRED AT AND INVOLVED INDIVIDUALS FROM BOTH THE TOLEDO POST OF DUTY
AND THE CLEVELAND DISTRICT OFFICE. IN ITS EXCEPTIONS, THE GENERAL
COUNSEL CONTENDS THAT THE ADMINISTRATIVE LAW JUDGE ERRED IN RELYING UPON
ANY INCIDENTS WHICH OCCURRED OUTSIDE THE TOLEDO POST OF DUTY.
THE AUTHORITY AGREES THAT THE RECORD SUPPORTS THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS CONCERNING THE PAST PRACTICE, BUT RELIES ONLY ON THE
INCIDENTS WHICH OCCURRED AT OR INVOLVED INDIVIDUALS IN THE TOLEDO POST
OF DUTY.
ORDER
PURSUANT TO 2423.29 OF THE FEDERAL LABOR RELATIONS AUTHORITY'S RULES
AND REGULATIONS AND SEC. 7118 OF THE STATUTE, THE AUTHORITY THEREBY
ORDERS THAT THE COMPLAINT IN CASE NO. 5-CA-165 BE, AND IT HEREBY IS,
DISMISSED.
ISSUED, WASHINGTON, D.C., JULY 17, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
CERTIFICATE OF SERVICE
COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
PARTIES LISTED:
ARLANDER KEYS, ESQUIRE
REGIONAL ATTORNEY
OFFICE OF THE GENERAL COUNSEL
FEDERAL LABOR RELATIONS AUTHORITY
REGION V, 219 S. DEARBORN STREET
ROOM 1638
CHICAGO, ILLINOIS 60604
FOR THE GENERAL COUNSEL
WILLIAM T. LYONS, ESQUIRE
JAMES E. ROGERS, ESQUIRE
OFFICE OF THE REGIONAL COUNSEL
INTERNAL REVENUE SERVICE
CENTRAL REGION
P.O. BOX 2059
CINCINNATI, OHIO 45201
FOR THE RESPONDENT
JAMES R. LAWRENCE, ESQUIRE
NATIONAL FIELD REPRESENTATIVE
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W.
WASHINGTON, D.C. 20006
FOR THE CHARGING PARTY
MR. LEROY BRADWISH
REGIONAL DIRECTOR
FEDERAL LABOR RELATIONS AUTHORITY
ROOM 1638, DIRKSEN FEDERAL BUILDING
219 SOUTH DEARBORN STREET
CHICAGO, ILLINOIS 60604
BRENDA M. ROBINSON, ESQUIRE
SANDRA LEBOLD, ESQUIRE
OFFICE OF THE GENERAL COUNSEL
FEDERAL LABOR RELATIONS AUTHORITY
REGION V, 219 S. DEARBORN STREET
ROOM 1638
CHICAGO, ILLINOIS 60604
FOR THE GENERAL COUNSEL
WILLIAM T. LYONS, ESQUIRE
JAMES E. ROGERS, ESQUIRE
OFFICE OF THE REGIONAL COUNSEL
INTERNAL REVENUE SERVICE
CENTRAL REGION
P.O. BOX 2059
CINCINNATI, OHIO 45201
FOR THE RESPONDENT
JAMES R. LAWRENCE, ESQUIRE
NATIONAL FIELD REPRESENTATIVE
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W.
WASHINGTON, D.C. 20006
FOR THE CHARGING PARTY
BEFORE: LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
THIS CASE AROSE AS AN UNFAIR LABOR PRACTICE PROCEEDING UNDER THE
PROVISIONS OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 92
STAT 1191, 5 U.S.C. 7101 ET SEQ., AND THE RULES AND REGULATIONS ISSUED
THEREUNDER.
ON SEPTEMBER 12, 1979, A COMPLAINT WAS FILED BY THE REGIONAL
DIRECTOR, REGION V, FEDERAL LABOR RELATIONS AUTHORITY, CHICAGO,
ILLINOIS, AGAINST THE DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
SERVICE, CLEVELAND, OHIO (HEREINAFTER CALLED RESPONDENT OR MANAGEMENT).
THE COMPLAINT ALLEGED THAT ON OR ABOUT MARCH 8 AND 16, 1979, THE
RESPONDENT VIOLATED 5 U.S.C. 7116(A)(1) AND (5) BY UNILATERALLY
CHANGING EXISTING CONDITIONS OF EMPLOYMENT AT THE RESPONDENT'S TOLEDO,
OHIO POST OF DUTY /1/ WITHOUT FURNISHING THE NATIONAL TREASURY EMPLOYEES
UNION AND NATIONAL TREASURY EMPLOYEES UNION CHAPTER 44 (UNION), NOTICE
AND/OR OPPORTUNITY TO BARGAIN CONCERNING SUCH CHANGES. /2/ IT WAS
ALLEGED THAT THE RESPONDENT WITHDREW THE UNION'S PERMISSION TO USE
CERTAIN OFFICE EQUIPMENT AT THE TOLEDO POST OF DUTY, AND THAT SUCH
PERMISSION HAD BEEN EXTENDED TO THE UNION AT THE FACILITY OVER A PERIOD
OF MANY YEARS PRIOR TO SUCH WITHDRAWAL.
THE SPECIFIC UNION ACTIVITY PROHIBITED ON MARCH 8, AND 16, 1979,
INVOLVED THE UTILIZATION OF A TYPEWRITER AND OTHER OFFICE EQUIPMENT NOT
SPECIFICALLY IDENTIFIED IN THE COLLECTIVE BARGAINING AGREEMENT AS BEING
AUTHORIZED FOR UNION USE. /3/ IT IS THIS BLANKET PROHIBITION WHICH THE
UNFAIR LABOR PRACTICE COMPLAINT CONDEMNS BASED UPON AN ALLEGED
PREVIOUSLY ESTABLISHED POLICY OF ALLOWING THE UNION TO UTILIZE SUCH
TYPEWRITERS AND OTHER OFFICE EQUIPMENT AT TOLEDO POST OF DUTY.
THE RESPONDENT DENIES THE ALLEGATIONS AND ASSERTS THAT AN OBLIGATION
TO BARGAIN DID NOT ARISE BECAUSE THE RESPONDENT DID NOT EFFECTUATE A
UNILATERAL CHANGE IN THE TERMS AND CONDITIONS OF EMPLOYMENT; THAT THE
GENERAL COUNSEL HAS FAILED TO ESTABLISH BY A PREPONDERANCE OF THE
EVIDENCE THAT THE RESPONDENT DID IN FACT MAKE A UNILATERAL CHANGE IN THE
TERMS AND CONDITIONS OF EMPLOYMENT; THAT THE UNION WAIVED ANY RIGHTS
THAT IT MIGHT HAVE HAD TO NEGOTIATE CONCERNING THE CHANGE; THAT IF A
UNILATERAL CHANGE DID OCCUR, AN UNFAIR LABOR PRACTICE CHARGE BASED ON
SUCH CHANGE WOULD BE BARRED BY THE SIX-MONTH PERIOD OF LIMITATION SET
OUT IN SECTION 7118(A)(4)(A) OF TITLE 5 UNITED STATES CODE; AND THAT IF
AN OBLIGATION TO BARGAIN EXISTED, SUCH OBLIGATION, UNDER THE TERMS OF
THE COLLECTIVE BARGAINING AGREEMENT, WOULD HAVE BEEN OWED TO THE
NATIONAL LEVEL OF THE NATIONAL TREASURY EMPLOYEES UNION OR TO THE
NATIONAL TREASURY EMPLOYEES UNION JOINT COUNCIL OF CHAPTERS IN THE
CLEVELAND DISTRICT, RATHER THAN TO CHAPTER 44 AS A SEPARATE ENTITY. /4/
A HEARING WAS HELD BEFORE THE UNDERSIGNED IN TOLEDO, OHIO. ALL
PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE
HEARD, ADDUCE RELEVANT EVIDENCE, AND EXAMINE AND CROSS-EXAMINE
WITNESSES. POST-HEARING BRIEFS WERE RECEIVED FROM COUNSEL FOR THE
GENERAL COUNSEL, FEDERAL LABOR RELATIONS AUTHORITY, AND THE RESPONDENT.
THESE HAVE BEEN DULY CONSIDERED. /5/ BASED UPON THE ENTIRE RECORD
HEREIN, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR,
THE EXHIBITS AND OTHER RELEVANT EVIDENCE ADDUCED AT THE HEARING, AND THE
BRIEFS, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS AND
RECOMMENDATION.
FINDINGS OF FACT
AT ALL TIMES HEREIN MATERIAL THE PARTIES WERE GOVERNED BY A
MULTI-DISTRICT AGREEMENT ENTERED INTO BY THE INTERNAL REVENUE SERVICE
AND THE NATIONAL TREASURY EMPLOYEES UNION (RESPONDENT EXHIBIT 3).
ARTICLE 14 OF THIS AGREEMENT AND SIMILAR PROVISIONS IN TWO EARLIER
COLLECTIVE BARGAINING AGREEMENTS (RESPONDENT EXHIBITS 1 AND 2), MADE
PROVISION FOR THE RESPONDENT TO SUPPLY CERTAIN FACILITIES AND SERVICES
TO THE UNION. THE UNION'S USE OF TYPEWRITERS WAS NOT PROVIDED FOR IN
THE CURRENT COLLECTIVE BARGAINING AGREEMENT, OR THE TWO EARLIER
AGREEMENTS. /6/
THE PATTERN OF EVENTS LEADING TO THE FILING OF THIS UNFAIR LABOR
PRACTICE CHARGE COMMENCED ON MARCH 8, 1979, WHEN WILLIAM GILLESPIE,
PRESIDENT OF CHAPTER 44, ASKED ROSEMARY HARRISON, THE CHAPTER 44
SECRETARY, TO TYPE A LETTER FOR THE UNION DURING WORKING HOURS ON A
GOVERNMENT OWNED TYPEWRITER. WILLIAM GILLESPIE WAS A REVENUE OFFICER
ASSIGNED TO THE TOLEDO POST OF DUTY. THE LETTER IN QUESTION DEALT WITH
THE SUBJECT OF CONTRIBUTIONS TO A TREASURY EMPLOYEES POLITICAL ACTION
COMMITTEE, AND WAS ADDRESSED TO THE PRESIDENT OF THE NATIONAL TREASURY
EMPLOYEES UNION. ROSEMARY HARRISON WAS THEN WORKING AS A CLERK
STENOGRAPHER FOR ONE OF TWO GROUPS OF REVENUE OFFICERS EMPLOYED BY THE
COLLECTION DIVISION OF THE INTERNAL REVENUE SERVICE AT THE TOLEDO
LOCATION.
AT ABOUT 3:30 P.M. ON MARCH 8TH, RONALD ZIELINSKI, A SUPERVISORY
REVENUE OFFICER AND GROUP MANAGER IN CHARGE OF THE GROUP TO WHICH
HARRISON AND GILLESPIE WERE ASSIGNED, NOTICED THAT THE STATIONERY IN
HARRISON'S TYPEWRITER CARRIED THE NATIONAL TREASURY EMPLOYEES
LETTERHEAD. AFTER DISCUSSING THE SUBJECT WITH ROBERT SMITH, A
SUPERVISOR AND GROUP MANAGER IN CHARGE OF A SECOND GROUP OF COLLECTION
DIVISION REVENUE OFFICERS AT THE TOLEDO POST OF DUTY, ZIELINSKI RETURNED
TO HARRISON AND INSTRUCTED HER TO STOP TYPING IMMEDIATELY. HE TOLD HER
THAT SHE COULD NOT TYPE THE DOCUMENT ON GOVERNMENT EQUIPMENT OR TIME
BECAUSE IT WAS "UNION BUSINESS." HARRISON REQUESTED PERMISSION TO
CONTINUE IN ORDER TO COMPLETE THE PROJECT, BUT ZIELINSKI REFUSED. SHE
REMOVED THE LETTER FROM THE TYPEWRITER AND IMMEDIATELY WENT OVER TO
DISCUSS THE ISSUE WITH WILLIAM GILLESPIE.
SHORTLY THEREAFTER GILLESPIE ENTERED ZIELINSKI'S OFFICE AND ADVISED
THAT HE HAD REQUESTED HARRISON TO TYPE THE LETTER, THAT SHE HAD SPENT
ABOUT TEN MINUTES ON THE PROJECT, THAT IF ZIELINSKI WANTED TO "DOCK"
HARRISON FOR THE TIME HE COULD DO SO, AND THAT THE UNION WOULD REIMBURSE
HARRISON FOR HER TIME. GILLESPIE ALSO EXPLAINED THAT HE FELT IT WAS
IMPROPER FOR ZIELINSKI TO DENY THE UNION THE RIGHT TO USE AN INTERNAL
REVENUE SERVICE TYPEWRITER, AND THAT TO DO SO WAS AN UNFAIR LABOR
PRACTICE. ZIELINSKI EXPLAINED THAT IT WAS NOT IMPROPER AND THAT THE
ISSUE HAD BEEN RESOLVED AGAINST THE UNION THE PREVIOUS YEAR (RESPONDENT
EXHIBIT 12). GILLESPIE PROMISED TO "GET BACK" TO ZIELINSKI LATER. ON
THE SAME DAY GILLESPIE LEFT A LETTER ON ZIELINSKI'S DESK EXPLAINING THAT
THE USE OF THE TYPEWRITER TO TYPE UNION COMMUNICATIONS CONSTITUTED AN
ESTABLISHED PRACTICE AND THAT THE RIGHT SHOULD NOT HAVE BEEN DENIED
(GENERAL COUNSEL EXHIBIT 2).
ZIELINSKI REPLIED TO GILLESPIE'S LETTER ON MARCH 16, 1979, AFTER
OBTAINING ADVICE FROM JOHN GALLAGHER, A BRANCH CHIEF IN CHARGE OF THE
ZIELINSKI AND SMITH GROUPS, AND THOMAS A. COZZENS, LABOR RELATIONS
SPECIALISTS, AND REPRESENTATIVE OF THE DISTRICT DIRECTOR IN THE
CLEVELAND DISTRICT OFFICE. THE REPLY REFERRED TO FACILITIES AND
SERVICES IN THE COLLECTIVE BARGAINING AGREEMENT AS THE ONLY ONES THAT
RESPONDENT WAS OBLIGATED TO PROVIDE; NOTED THAT THE USE OF GOVERNMENT
TYPEWRITERS WAS NOT PROVIDED FOR THEREIN; AND THAT SUCH USE FOR UNION
BUSINESS WAS PROHIBITED. /7/ THE REPLY ALSO NOTED THAT, "GROUP MANAGER
ROBERT SMITH SPECIFICALLY DISCUSSED THIS ISSUE WITH YOUR UNION STEWARD,
ROBERT WEKWERT ON JUNE 14, 1978" (GENERAL COUNSEL EXHIBIT 3). /8/
WITH RESPECT TO THE JUNE 14, 1978 DISCUSSION BETWEEN SMITH AND
WEKWERT, THE RECORD REVEALED THAT PRIOR TO THE DISCUSSION ZIELINSKI
BROUGHT TO SMITH'S ATTENTION A MEMORANDUM TYPES IN SCRIPT ON UNION
STATIONERY. THE DOCUMENT HAD BEEN POSTED ON A UNION BULLETIN BOARD.
ZIELINSKI AND SMITH CONCLUDED THAT THE MEMORANDUM HAD BEEN TYPED ON A
NEW TYPEWRITER OBTAINED FOR USE BY ROSEMARY HARRISON AT THE TOLEDO POST
OF DUTY. AFTER DISCUSSING THE ISSUE WITH ZIELINSKI, AND RECEIVING
INSTRUCTION FROM BRANCH CHIEF JOHN GALLAGHER, SMITH CALLED IN WEKWERT
AND BECAUSE OF HIS POSITION AS UNION STEWARD, ADVISED HIM THAT THE USE
OF THE TYPEWRITER FOR UNION BUSINESS WAS NOT PROVIDED FOR IN THE
COLLECTIVE BARGAINING AGREEMENT, AND THAT THE PRACTICE WAS PROHIBITED
(RESPONDENT EXHIBIT 14). /9/ WEKWERT ADVISED SMITH THAT SMITH WAS
CORRECT AND THAT THE PRACTICE WOULD NOT BE REPEATED IN THE FUTURE (TR.
338-339). /10/
WEKWERT WAS APPOINTED TO THE POSITION OF STEWARD IN OCTOBER OF 1977.
CHAPTER 44 HAS ONLY ONE STEWARD SERVING THE MEMBERSHIP AT THE TOLEDO
POST OF DUTY (TR. 163). MANAGEMENT OFFICIALS DEALT WITH WEKWERT ON A
WIDE RANGE OF LOCAL LABOR-MANAGEMENT ISSUES (TR. 324, 329, 362-364,
434-435, 460-461). IN FACT, WEKWERT WAS A FOCAL POINT FOR DEALINGS WITH
THE UNION IN TOLEDO (TR. 330). DEALINGS WITH THE CHAPTER PRESIDENT WERE
NOT CUSTOMARY UNLESS THE CHAPTER PRESIDENT WAS ACTING AS THE STEWARD
DURING VACATION PERIODS (TR. 362-363). THE RESPONDENT ACKNOWLEDGED THAT
IT PREFERRED TO DISPOSE OF LABOR MANAGEMENT PROBLEMS AT THE LOWEST LEVEL
(TR. 228). THERE WAS ALSO CLEAR INDICATION IN THE RECORD THAT ALL
STEWARDS WERE ACTUALLY REPRESENTATIVES OF THE JOINT COUNCIL OF CHAPTERS
IN THE CLEVELAND DISTRICT (TR. 240). /11/
THE RECORD DISCLOSED THAT THE NATIONAL TREASURY EMPLOYEES UNION WAS
KNOWN AS THE NATIONAL ASSOCIATION OF INTERNAL REVENUE EMPLOYEES AT THE
TIME THE PARTIES HEREIN EXECUTED THEIR FIRST COLLECTIVE BARGAINING
AGREEMENT IN 1972 (RESPONDENT EXHIBIT 1), AND THAT PRIOR TO THE
EXECUTION OF THE FIRST AGREEMENT, IT WAS THE PRACTICE OF MANAGEMENT AT
THE TOLEDO POST OF DUTY TO ALLOW THE USE OF OFFICE EQUIPMENT BY
REPRESENTATIVES OF THE NATIONAL ASSOCIATION OF INTERNAL REVENUE
EMPLOYEES (TR. 391-392, 394).
AFTER THE EXECUTION OF THE FIRST COLLECTIVE BARGAINING AGREEMENT, THE
RESPONDENT'S POLICY WAS GOVERNED BY CONTRACTUAL PROVISIONS RELATING TO
THE SUBJECT. AS NOTED, WITH MINOR EXCEPTIONS, NOT RELEVENT HERE, THE
USE OF OFFICE EQUIPMENT BY THE UNION HAS NOT BEEN COUNTENANCED BY THE
PROVISIONS IN THE SERIES OF COLLECTIVE BARGAINING AGREEMENTS EXECUTED BY
THE PARTIES SINCE 1972.
POLICING OF THE RESTRICTIVE PROVISIONS IN THESE COLLECTIVE BARGAINING
AGREEMENTS WAS CONSIDERED TO BE A SIGNIFICANT PROBLEM THROUGHOUT THE
CLEVELAND DISTRICT. MANAGEMENT RELIED UPON A SERIES OF TRAINING
SESSIONS TO INSTRUCT MANAGERS CONCERNING THE SPECIFIC FACILITIES AND
SERVICES WHICH MIGHT BE MADE AVAILABLE TO THE UNION UNDER THE TERMS OF
THE COLLECTIVE BARGAINING AGREEMENTS (TR. 186-187, 191-192). WITH
RESPECT TO POLICING THE SYSTEM INITIATED BY THE COLLECTIVE BARGAINING
AGREEMENTS, MANAGEMENT TOOK THE POSITION THAT THE UNION WAS AWARE OF THE
LIMITATIONS APPROVED BY THE PARTIES AND INCORPORATED IN THE COLLECTIVE
BARGAINING AGREEMENTS, AND THAT ALL CLEVELAND DISTRICT MANAGERS SHOULD
ENFORCE THE POLICY. HOWEVER, IT WAS FELT THAT COMPLIANCE WITH THE
RESTRICTIVE PROVISIONS IN THE AGREEMENTS, RATHER THAN SUSPICION AND
DISTRUST, SHOULD BE ANTICIPATED (TR. 224-225). MANAGERS WERE NOT GIVEN
AUTHORITY TO MODIFY THE COLLECTIVE BARGAINING AGREEMENT (TR. 225). IT
WAS DISCLOSED THAT MANAGEMENT SOUGHT TO AVOID "GESTAPO TYPE" TACTICS IN
EFFORTS TO ENFORCE THE PROVISIONS OF THE COLLECTIVE BARGAINING
AGREEMENTS (TR. 301-302). THE METHOD USED WAS DESCRIBED AS FOLLOWS BY
GROUP MANAGER ROBERT SMITH:
Q. DO YOU REMEMBER HOW IN YOUR TRAINING, . . . YOU WERE TO POLICE
SUCH THINGS?
A. YES. IT WAS MORE LIKE TO KEEP AN EYE OUT FOR IT. WHENEVER YOU
SEE IT OCCUR, DO NOT LET
IT GO BY (TR. 348).
THE RECORD REFLECTS THAT THE UNION CONTINUED TO USE TYPEWRITERS,
PHOTOCOPYING EQUIPMENT AND PERHAPS OTHER OFFICE EQUIPMENT NOT AUTHORIZED
BY THE COLLECTIVE BARGAINING AGREEMENT, AT THE TOLEDO POST OF DUTY
DURING THE YEARS FOLLOWING EXECUTION OF THE FIRST COLLECTIVE BARGAINING
AGREEMENT, DESPITE THE LIMITATIONS IMPOSED BY THE CONTRACTUAL PROVISIONS
AND MANAGEMENT POLICY. THIS FACT WAS ESTABLISHED BY A NUMBER OF
WITNESSES CALLED ON BEHALF OF THE UNION. THE UNION RELIES HEAVILY UPON
SUCH ACTUAL USE, CIRCUMSTANTIAL EVIDENCE TENDING TO INDICATE THAT TOLEDO
POST OF DUTY MANAGERS WOULD HAVE BEEN IN A POSITION TO OBSERVE SUCH USE,
AND SOME EVIDENCE OF LIMITED APPROVAL OF THE PRACTICE DURING THE PERIOD
BEFORE AND AFTER EXECUTION OF THE FIRST COLLECTIVE BARGAINING AGREEMENT.
THROUGH THE TESTIMONY OF ALPHONSE JACHIMIAK, A RETIRED COLLECTION
DIVISION GROUP MANAGER, THE UNION DID INTRODUCE EVIDENCE OF PERMISSIVE
USE FOR A PERIOD OF TIME AT THE TOLEDO POST OF DUTY. JACHIMIAK PRECEDED
ZIELINSKI AS GROUP MANAGER AND RETIRED IN JULY OF 1977. HE ALLOWED
CHAPTER 44 SECRETARIES TO UTILIZE TYPEWRITERS AT THE TOLEDO POST OF DUTY
PROVIDED SUCH USE DID NOT INTERFERE WITH WORK ACTIVITY. /12/ HE RELATED
THAT SUCH USE OCCURRED UPON REQUEST WHILE HE WAS SERVING AS GROUP
MANAGER OVER A FOURTEEN YEAR PERIOD, AND THAT HE AND OTHER GROUP
MANAGERS APPROVED THE PRACTICE (TR. 83-86). /13/ JACHIMIAK TESTIFIED
THAT HIS CONSENT WAS BASED UPON A LIBERAL POLICY ESTABLISHED BY
MANAGEMENT IN THE CLEVELAND DISTRICT DURING THE PERIOD 1948 TO 1950.
MYRON TUTELIANO, A CONTEMPORARY OF JACIMIAK'S DURING A PERIOD PRIOR
TO TUTELIANO'S TRANSFER OUT OF TOLEDO IN THE FIRST WEEK OF 1977, HELD A
SIMILAR MANAGEMENT POSITION FOR A PERIOD OF YEARS PRIOR TO HIS TRANSFER.
ALTHOUGH TUTELIANO ADMITTED THAT SUCH A PRACTICE HAD IN FACT EXISTED
PRIOR TO THE EFFECTIVE DATE OF THE FIRST COLLECTIVE BARGAINING AGREEMENT
IN 1972, HE STATED THAT HE WAS UNDER THE IMPRESSION THE UNION'S USE OF
SUCH EQUIPMENT TERMINATED WITH THE EXECUTION OF THE FIRST COLLECTIVE
BARGAINING AGREEMENT (TR. 387-391, 394). HE TESTIFIED THAT HE DID NOT
OBSERVE THE PRACTICE THEREAFTER AT THE TOLEDO POST OF DUTY. /14/
IN ADDITION TO JACHIMIAK'S TESTIMONY, MICHAEL KILCOURSE, A FORMER
OFFICER OF CHAPTER 44 TESTIFIED THAT HE ATTENDED A 1973 OR 1974 LABOR
MANAGEMENT MEETING IN THE CLEVELAND DISTRICT OFFICE, AND THAT ALVIN
KELLEY, THE THEN DISTRICT DIRECTOR WAS ADVISED OF THE FACT THAT UNION
REPRESENTATIVES WERE UTILIZING THE PHOTOCOPYING MACHINE FOR UNION
RELATED WORK. KILCOURSE REPORTED THAT KELLEY TOOK THE POSITION THAT IF
THE PRIVILEGE WERE NOT ABUSED THE UNION COULD CONTINUE TO USE SUCH
EQUIPMENT IN THE CLEVELAND DISTRICT (TR. 68-70).
RESPONDENT EXHIBIT 9, A COPY OF A FREEDOM OF INFORMATION ACT REQUEST
ADDRESSED TO THE RESPONDENT BY THE NATIONAL TREASURY EMPLOYEES UNION,
AND THE RESPONSE THERETO, REFLECTS COPIES OF MINUTES OF MEETINGS HELD
WHILE ALVIN KELLEY WAS CLEVELAND DISTRICT DIRECTOR AND MICHAEL KILCOURSE
WAS CHAPTER 44 PRESIDENT. THIS EXHIBIT REFLECTS THAT THE ONLY MEETING
WHEREIN THESE INDIVIDUALS WERE PRESENT OCCURRED ON MARCH 13, 1973.
HOWEVER, THE MINUTES REFLECT NO REFERENCE TO DISTRICT DIRECTOR KELLEY'S
AUTHORIZATION TO USE PHOTOCOPYING EQUIPMENT. THE MINUTES OF SUCH
MEETINGS WERE DEEMED TO BE ACCURATE IN THE ABSENCE OF OBJECTION FROM
UNION MEMBERS PRESENT. THE RECORD DISCLOSED NO EVIDENCE OF OBJECTION TO
THE MINUTES OF THE MARCH 13, 1973, MEETING NOR AMENDMENT THEREOF.
THE RECORD REVEALED THAT ALVIN KELLEY SERVED AS THE DISTRICT DIRECTOR
OF THE CLEVELAND DISTRICT FROM DECEMBER OF 1973 UNTIL DECEMBER OF 1974
(TR. 190), AND THAT ALL DISTRICT DIRECTORS EXPRESSED THE VIEW THAT THE
UNION WAS ENTITLED ONLY TO THAT WHICH HAD BEEN NEGOTIATED AND SPELLED
OUT IN COLLECTIVE BARGAINING AGREEMENTS (TR. 423).
IN ADDITION TO THE POSITION TAKEN BY MANAGEMENT ON MARCH 8 AND 16,
1979, AND JUNE 14, 1978, EVIDENCE ESTABLISHED THAT THE ISSUE WAS RAISED
AT THE DISTRICT DIRECTOR'S LEVEL ON MARCH 1, 1978 IN A CONVERSATION
BETWEEN THOMAS COZZENS AND MICAHEL A. SWEENEY, CHIEF STEWARD FOR THE
CLEVELAND DISTRICT JOINT COUNCIL OF CHAPTERS (TR. 208-214, 238-239). ON
THIS DATE HANDWRITTEN LETTERS RELATING TO UNION BUSINESS WERE GIVEN TO
COZZENS BY SWEENEY. UPON BEING CHIDED BY COZZENS CONCERNING THE USE OF
HANDWRITTEN LETTERS TO COMMUNICATE WITH MANAGEMENT AT THE DISTRICT
DIRECTOR'S LEVEL (RESPONDENT EXHIBITS 5 AND 6), SWEENEY RESPONDED THAT
COMMUNICATIONS WOULD BE TYPED IF THE CLEVELAND DISTRICT ALLOWED THE
UNION TO USE TYPEWRITERS.
IN FEBRUARY OF 1978, THE ISSUE WAS RAISED DURING A DISCUSSION
RELATING TO A GRIEVANCE. ROBERT SMITH AND THOMAS COZZENS PARTICIPATED
ON BEHALF OF THE RESPONDENT AT THE TOLEDO POST OF DUTY, AND WILLIAM
GILLESPIE AND ROBERT WEKWERT REPRESENTED CHAPTER 44 (TR. 336-337).
/15/ AT THIS MEETING GILLESPIE ALLUDED TO A DECISION WHEREIN IT WAS
ESTABLISHED THAT THE NATIONAL TREASURY EMPLOYEES UNION HAD, IN AN UNFAIR
LABOR PRACTICE PROCEEDING, ESTABLISHED THE RIGHT TO USE GOVERNMENT
EQUIPMENT IN A CASE INVOLVING A PAST PRACTICE. COZZENS REPLIED THAT THE
CASE WAS INAPPLICABLE TO THE CLEVELAND DISTRICT, THAT SUCH A PRACTICE
HAD NEVER EXISTED IN THE CLEVELAND DISTRICT, THAT THERE WAS NO PRACTICE
OF ALLOWING THE UNION TO UTILIZE GOVERNMENT EQUIPMENT, AND FURTHER THAT
SUCH USE WAS PROHIBITED (TR. 207-209, 336-337).
DURING ANOTHER ENCOUNTER ON AUGUST 20, 1976, THOMAS COZZENS SUGGESTED
TO HAYWARD C. REED AN ASSISTANT COUNSEL OF THE NATIONAL TREASURY
EMPLOYEES UNION THAT A HANDWRITTEN REQUEST TO NEGOTIATE THE IMPACT OF A
REORGANIZATION WAS NOT APPROPRIATE. COZZENS RELATED THE FOLLOWING
REGARDING REED'S RESPONSE:
"IF WE LET HIM USE THE TYPEWRITERS, IF WE LET THE PEOPLE USE THE
TYPEWRITERS THEY WOULD BE
HAPPY TO TYPE IT." (TR. 217 AND RESPONDENT EXHIBIT 7).
THE RECORD ALSO DISCLOSED THAT IN APRIL OF 1976, THOMAS COZZENS AND
ONE DON HEIDLER, REPRESENTING CLEVELAND DISTRICT MANAGEMENT, HAD A
DISCUSSION WITH ONE STAN FOX WHO WAS THE CHAIRMAN OF THE JOINT COUNCIL
OF CHAPTERS IN THE CLEVELAND DISTRICT, TO EXCHANGE INFORMATION
CONCERNING A PROPOSED REORGANIZATION. DURING THE MEETING FOX WAS GIVEN
A FOUR PAGE DOCUMENT OUTLINING THE CHANGES THAT WERE TO BE MADE. A FEW
DAYS LATER COZZENS LEARNED THAT ABOUT SEVENTY EMPLOYEES HAD COPIES OF
THE DOCUMENT AND THAT THE PAPER USED REFLECTED THAT THE RESPONDENT'S
XEROX MACHINE HAD BEEN UTILIZED TO REPRODUCE THE COPIES. COZZENS
ADVISED STAN FOX OF HIS FINDINGS AND OBTAINED AN APOLOGY FROM FOX.
COZZENS ADVISED FOX THAT AS CHAIRMAN OF THE JOINT COUNCIL IT WAS FOX'S
OBLIGATION TO INFORM ALL OF THE STEWARDS AND OTHER UNION OFFICIALS IN
THE CLEVELAND DISTRICT THAT THEY WERE NOT ENTITLED TO USE FACILITIES
OTHER THAN THOSE SPECIFICALLY NEGOTIATED (TR. 221). FOX EXPLAINED THAT
THE USE OF THE XEROX MACHINE WAS DUE TO THE ACTIONS OF AN UNTRAINED
STEWARD (TR. 221).
DISCUSSION AND CONCLUSIONS
IT IS WELL ESTABLISHED THAT THE USE OF AGENCY FACILITIES AND
EQUIPMENT BY A UNION IS A PRIVILEGE AND NOT A RIGHT, BUT THAT ONCE
GRANTED SUCH PRIVILEGE BECOMES, IN EFFECT, AN ESTABLISHED TERM AND
CONDITION OF EMPLOYMENT WHICH MAY NOT THEREAFTER BE UNILATERALLY
CHANGED. ARKANSAS ARMY NATIONAL GUARD, ASSISTANT SECRETARY CASE NO.
64-4120(CA), 1 FLRA NO. 100 (AUGUST 15, 1979), REPORT NO. 15; INTERNAL
REVENUE SERVICE SOUTHWEST REGION, APPELLATE BRANCH OFFICE, NEW ORLEANS,
LOUISIANA, A/SLMR NO. 1153 (1978); U.S. DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, NEW ORLEANS DISTRICT, NEW ORLEANS, LOUISIANA,
A/SLMR NO. 1034 (1978); VETERANS ADMINISTRATION, VETERANS
ADMINISTRATION REGIONAL OFFICE, NEW YORK REGION, A/SLMR NO. 694 (1976);
INTERNAL REVENUE SERVICE, OFFICE OF THE REGIONAL COMMISSIONER, WESTERN
REGION, A/SLMR NO. 473 (1975); LOS ANGELES AIR ROUTE TRAFFIC CONTROL
CENTER, FEDERAL AVIATION ADMINSTRATION, A/SLMR NO. 283 (1973).
AS NOTED IN AUTHORITIES CITED THE USE OF AGENCY FACILITIES AND
EQUIPMENT IS A PRIVILEGE AND NOT A RIGHT. UNLESS THE PRIVILEGE OR RIGHT
TO UTILIZE AGENCY FACILITIES AND SERVICES EXISTS IN THE FIRST INSTANCE,
AN UNFAIR LABOR PRACTICE CANNOT BE PREDICATED UPON A MANAGEMENT EFFORT
TO PREVENT OR PROHIBIT THE USE OF AGENCY FACILITIES AND SERVICES.
HEADQUARTERS, 2750TH AIR BASE WING, U.S. AIR FORCE, WRIGHT-PATTERSON AIR
FORCE BASE, OHIO, ASSISTANT SECRETARY CASE NO. 53-10533 (CA), 1 FLRA NO.
99 (AUGUST 15, 1979), REPORT NO. 14. THE ESSENCE OF THE CONTENTIONS AND
ARGUMENTS OF THE PARTIES IN THIS CASE RELATES PRINCIPALLY TO WHETHER,
UNDER THE PARTICULAR CIRCUMSTANCES PRESENTED HERE, A PAST PRACTICE
EXISTED WITH RESPECT TO THE USE OF TYPEWRITERS AND OTHER OFFICE
EQUIPMENT (NOT SPECIFICALLY AUTHORIZED IN THE COLLECTIVE BARGAINING
AGREEMENT), AND IF SO, WHETHER THE RESPONDENT UNILATERALLY TERMINATED
THE PAST PRACTICE WITHOUT PROVIDING THE UNION AN OPPROTUNITY TO BARGAIN
CONCERNING THE ISSUE OF WHETHER OR NOT THE PRACTICE SHOULD BE
DISCONTINUED. /16/
HERE THE USE OF TYPEWRITERS AND PHOTOCOPYING EQUIPMENT WAS PERMITTED
AT THE TOLEDO POST OF DUTY BY ALPHONSE JACHIMIAK AND PERHAPS OTHERS
PRIOR TO JACHIMIAK'S RETIREMENT IN JULY OF 1977. /17/ HOWEVER, AT THE
MEETING IN FEBRUARY OF 1978, THOMAS COZZENS, REPRESENTING THE DISTRICT
DIRECTOR, ADVISED CHAPTER 44 OFFICERS WILLIAM GILLESPIE AND ROBERT
WEKWERT THAT THE USE OF FACILITIES AND SERVICES NOT IDENTIFIED IN THE
COLLECTIVE BARGAINING AGREEMENT, WAS PROHIBITED, AND FURTHER THAT A PAST
PRACTICE IN THIS REGARD DID NOT EXIST. IN A SUBSEQUENT MARCH 1, 1978
MEETING BETWEEN COZZENS AND MICHEAL SWEENEY, CHIEF STEWARD FOR THE
CLEVELAND DISTRICT OF CHAPTERS, SWEENEY ACKNOWLEDGED THE EXISTENCE OF
THE PROHIBITION AGAINST THE UNION'S USE OF TYPEWRITERS IN THE CLEVELAND
DISTRICT. A STILL CLEARER EXPRESSION OF A TERMINATION OF ANY EXISTING
PAST PRACTICE OCCURRED ON JUNE 14, 1978, AT WHICH TIME ROBERT SMITH
OUTLINED RESPONDENT'S POSITION REGARDING THE PROHIBITION AGAINST THE USE
OF A COLLECTION DIVISION TYPEWRITER, AND IN SO DOING EFFECTIVELY RELATED
THE USE OF SUCH EQUIPMENT TO THE SPECIFIC PROVISIONS OF THE COLLECTIVE
BARGAINING AGREEMENT. /18/ IT THUS CLEARLY APPEARS, THAT IF THE
PRACTICE WAS CONDONED AT THE TOLEDO POST OF DUTY, IT WAS CONDONED IN A
LIMITED WAY ONLY. MOREOVER, IF CONDONED IT WAS EFFECTIVELY TERMINATED
BY HIGHER MANAGEMENT AS EARLY AS FEBRUARY OF 1978, AND CERTAINLY BY JUNE
14, 1978.
UNDER THE PROVISIONS OF SECTION 2423.18 OF REGULATIONS IMPLEMENTING
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 5 C.F.R.
2423.18, THE GENERAL COUNSEL HAS "THE BURDEN OF PROVING THE ALLEGATIONS
OF THE COMPLAINT BY A PREPONDERANCE OF THE EVIDENCE." IN ORDER TO IMPOSE
A BARGAINING OBLIGATION IN THIS CASE, IT WOULD FIRST BE NECESSARY FOR
THE GENERAL COUNSEL TO ESTABLISH THAT THE PROHIBITION ARTICULATED ON
MARCH 8 AND 16, 1979, REPRESENTED A CHANGE IN A PREVIOUSLY EXISTING
PRACTICE AT THE TOLEDO POST OF DUTY. DEPARTMENT OF HEALTH, EDUCATION
AND WELFARE, SOCIAL SECURITY ADMINISTRATION, BRSI, NORTHEASTERN PROGRAM
SERVICE CENTER, ASSISTANT SECRETARY CASE NO. 30-08551 (CA), 1 FLRA NO.
88 (JULY 31, 1979), REPORT NO. 13. THE EVIDENCE ESTABLISHES THAT ON THE
MENTIONED DATES, AND FOR MANY MONTHS PRIOR THERETO, THE PRACTICE HAD
BEEN EFFECTIVELY PROHIBITED BY THE RESPONDENT AT THE TOLEDO POST OF
DUTY. THERE WAS NO EVIDENCE THAT IT WAS KNOWN AND PERMITTED OR EVEN
TACITLY CONDONED ON THE DATES SPECIFIED IN THE COMPLAINT; NOR WAS THERE
ANY CONVINCING EVIDENCE INTRODUCED TO SHOW THAT IT WAS EVER OBSERVED
FOLLOWING THE PROHIBITION IN FEBRUARY, 1978 OR JUNE 14, 1978. DISTRICT
LEVEL AND TOLEDO POST OF DUTY REPRESENTATIVES OF THE RESPONDENT DEALT
DIRECTLY AND SPECIFICALLY WITH THE PRACTICE IN FEBRUARY OF 1978 AND ON
JUNE 14, 1978.
THE RECORD DOES REFLECT THAT USE DID IN FACT EXIST AFTER FEBRUARY
1978. HOWEVER, IT WAS NOT OPEN TO VIEW BY MANAGEMENT BECAUSE THOSE
USING THE EQUIPMENT REGULARLY USED SUCH AS PART OF THEIR OFFICIAL
DUTIES, AND BECAUSE MANAGEMENT RELIED HEAVILY UPON VOLUNTARY COMPLIANCE.
THESE FACTORS, COUPLED WITH A RELUCTANCE TO IMPLEMENT A MANAGEMENT
INVESTIGATIVE EFFORT INTO UNION ACTIVITY, LED MANAGEMENT TO RELY UPON A
POLICY OF IMPLEMENTING CORRECTIVE ACTION ONLY UPON OBSERVATION OF THE
PRACTICE. UNDER THESE CIRCUMSTANCES IT CANNOT BE SAID THAT THE PRACTICE
WAS APPROVED OR THAT IT WAS OPEN TO VIEW BY MANAGEMENT.
IN FACT, IT WOULD BE MORE LOGICAL TO ASSUME THAT THE UNION WAS IN
FACT RESPONDING TO MANAGEMENT'S REQUEST TO DISCONTINUE USE. THERE IS NO
INDICATION THAT THE UNION DISAGREED WITH MANAGEMENT'S FEBRUARY 1978, OR
JUNE 14, 1978, PRONOUNCEMENTS. THE RECORD INDICATES THAT MANAGEMENT
EXPECTED VOLUNTARY COMPLIANCE. IT MIGHT ALSO BE CONCLUDED THAT THE
ABSENCE OF UNION OBJECTION TO MANAGEMENT PRONOUNCEMENTS ON THE ISSUE,
LULLED MANAGEMENT INTO A BELIEF THAT THE UNION WAS VOLUNTARILY COMPLYING
AT THE TOLEDO POST OF DUTY. FINALLY, IN ADDITION TO THE FACT THAT THE
RECORD EVIDENCES NO SHOWING OF ACTUAL AWARENESS OF THE PRACTICE AFTER
FEBRUARY OF 1978, OR JUNE 14, 1978, THERE WAS NO SHOWING OF
CIRCUMSTANCES WHICH REASONABLY WOULD HAVE LED TO AWARENESS. IT WOULD
NOT HAVE BEEN UNUSUAL, BASED UPON THE FACTS BROUGHT OUT, FOR MANAGEMENT
TO HAVE REMAINED IGNORANT OF THE PRACTICE AFTER THE FEBRUARY 1978 AND
JUNE 14, 1978 ADMONITIONS TO THE UNION.
EVIDENCE THAT INDIVIDUAL MANAGERS WOULD HAVE DEVELOPED SUCH KNOWLEDGE
HAD THEY BEEN MORE OBSERVANT, AND/OR INQUIRED MORE THOROUGHLY INTO THE
NATURE OF UNION ACTIVITY, WOULD NOT PROVIDE A BASIS FOR A FINDING THAT
SUCH MANAGERS WERE IN FACT AWARE OF THE PRACTICE.
COUNSEL FOR THE GENERAL COUNSEL CITES LANGUAGE USED BY ADMINISTRATIVE
LAW JUDGE DEVANEY IN INTERNAL REVENUE SERVICE SOUTHWEST REGION,
APPELLATE BRANCH OFFICE, NEW ORLEANS, LOUISIANA, SUPRA, FOR THE POSITION
THAT AN OPEN AND NOTORIOUS PRACTICE ITSELF MAY CONSTITUTE FURTHER NOTICE
OF THE EXISTENCE OF A PAST PRACTICE. HOWEVER, THE MENTIONED CASE IS
CLEARLY DISTINGUISHABLE SINCE IT REFLECTS THAT ACTUAL KNOWLEDGE OF THE
PRACTICE WAS ESTABLISHED. ALSO, THE PRACTICE PRESENTED HERE WAS NOT
OPEN AND NOTORIOUS.
IT IS ALSO CONCLUDED THAT U.S. DEPARTMENT OF TREASURY, INTERNAL
REVENUE SERVICE, NEW ORLEANS DISTRICT, NEW ORLEANS, LOUISIANA, SUPRA,
ALSO CITED BY COUNSEL FOR THE GENERAL COUNSEL, IS INAPPOSITE BECAUSE
FACTUALLY DISTINGUISHABLE.
THE ACTIONS OF ZIELINSKI IN STOPPING THE TYPING OF UNION BUSINESS ON
RESPONDENT'S TYPEWRITER WAS BUT A REAFFIRMATION OF THE EXISTING POLICY
WITHIN THE CLEVELAND DISTRICT OFFICE. THE REAFFIRMATION OF AN EXISTING
POLICY IS NOT A CHANGE IN THE CONDITIONS OF EMPLOYMENT. DEPARTMENT OF
THE NAVY, MARE ALLEN NAVAL SHIPYARD, VALLEJO, CALIFORNIA, A/SLMR NO. 736
(1976); ALABAMA NATIONAL GUARD, MONTGOMERY, ALABAMA, A/SLMR NO. 895
(1977). THE UNION'S FAILURE TO COMPLY WITH RESPONDENT'S EXPRESSION OF
POLICY MAY NOT, WITHOUT MORE, BE USED AS A BASIS FOR PROOF OF THE
EXISTENCE OF A PAST PRACTICE JUSTIFYING USE OF FACILITIES ON MARCH 8 AND
16, 1979. ALTHOUGH A POSSIBLE BASIS FOR AN UNFAIR LABOR PRACTICE CHARGE
MAY HAVE EXISTED IN FEBRUARY OF 1978 OR PERHAPS ON JUNE 14, 1978, THE
UNION DID NOT PURSUE THIS REMEDY. /19/
IN THE LIGHT OF THE FOREGOING IT IS UNNECESSARY TO ADDRESS OTHER
ISSUES RAISED IN DEFENSE BY THE RESPONDENT.
RECOMMENDATION
IN VIEW OF THE FINDINGS AND CONCLUSIONS OUTLINED HEREIN IT IS
RECOMMENDED THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
DATED: FEBRUARY 5, 1980
WASHINGTON, D.C.
SERVICE SHEET
CASE NO. 5-CA-165
COPY OF: RECOMMENDED DECISION AND ORDER
DATED: FEBRUARY 5, 1980
"RECOMMENDED DECISION AND ORDER" ISSUED BY ADMINISTRATIVE LAW JUDGE
LOUIS SCALZO WAS SENT TO THE FOLLOWING PERSONS BY CERTIFIED MAIL:
LINDA LEE
BRENDA M. ROBINSON, ESQUIRE
SANDRA LEBOLD, ESQUIRE
OFFICE OF THE GENERAL COUNSEL
FEDERAL LABOR RELATIONS AUTHORITY
REGION V, 219 S. DEARBORN STREET
ROOM 1638
CHICAGO, ILLINOIS 60604
WILLIAM T. LYONS, ESQUIRE
JAMES E. ROGERS, ESQUIRE
OFFICE OF THE REGIONAL COUNSEL
INTERNAL REVENUE SERVICE
CENTRAL REGION
P.O. BOX 2059
CINCINNATI, OHIO 45201
JAMES R. LAWRENCE, ESQUIRE
NATIONAL FIELD REPRESENTATIVE
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W.
WASHINGTON, .D.C. 20006
REGULAR MAIL:
MR. ROBERT TOBIAS
GENERAL COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W.
WASHINGTON, D.C. 20006
ASSISTANT DIRECTOR
LABOR-MANAGEMENT RELATIONS
U.S. OFFICE OF PERSONNEL MANAGEMENT
1900 E STREET, N.W.
WASHINGTON, D.C. 20415
FEDERAL LABOR RELATIONS AUTHORITY
1900 E STREET, N.W., ROOM 7469
WASHINGTON, D.C. 20424
ONE COPY TO EACH REGIONAL DIRECTOR
OFFICE OF THE GENERAL COUNSEL
FEDERAL LABOR RELATIONS AUTHORITY
/1/ THE CLEVELAND DISTRICT OF INTERNAL REVENUE SERVICE INCLUDES THE
TOLEDO, OHIO POST OF DUTY.
/2/ ALTHOUGH THE COMPLAINT IDENTIFIES THE NATIONAL TREASURY EMPLOYEES
UNION AS A CHARGING PARTY, COUNSEL REPRESENTING THE GENERAL COUNSEL
ASSERTED THAT THE OBLIGATION TO BARGAIN WAS OWED TO THE NATIONAL
TREASURY EMPLOYEES UNION CHAPTER 44 (TR. 168).
/3/ IN ADDITION TO TYPEWRITERS, COUNSEL REPRESENTING THE GENERAL
COUNSEL IDENTIFIED PHOTOCOPY MACHINES, ADDING MACHINES AND PENCIL
SHARPENERS AS BEING INVOLVED (BRIEF SUBMITTED BY COUNSEL FOR GENERAL
COUNSEL AT PG. 3).
/4/ THE LAST ARGUMENT WAS NOT SPECIFICALLY PURSUANT IN RESPONDENT'S
POST-HEARING BRIEF.
/5/ UNDER AUTHORITY PROVIDED IN SECTION 2423.19(R) OF THE
REGULATIONS, 5 C.F.R. 2423.19(R), THE FOLLOWING CORRECTIONS ARE MADE IN
THE HEARING TRANSCRIPT: (TABLE OMITTED)
/6/ ARTICLE 14 OF THE CURRENT COLLECTIVE BARGAINING AGREEMENT DID
PROVIDE FOR THE USE OF TELEPHONES, BULLETIN BOARDS, FILE CABINETS,
SPACE, AND CERTAIN MATERIALS, PUBLICATIONS AND SERVICES. HOWEVER, THESE
ARE NOT IN ANY WAY INVOLVED IN THIS LITIGATION.
/7/ IT IS AGAIN NOTED THAT THE GRAVAMEN OF THE COMPLAINT RELATES
SOLELY TO RESPONDENT'S BLANKET PROHIBITION AGAINST THE USE OF CERTAIN
EQUIPMENT AT THE TOLEDO POST OF DUTY, AND NOT TO THE PROHIBITION
RELATING TO THE USE OF SUCH EQUIPMENT ON GOVERNMENT TIME. IN LIGHT OF
THE OFFICIAL TIME PROVISION IN THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (5 U.S.C. 7131) IT IS UNDERSTANDABLE WHY THE LATTER
FACET OF ADMINISTRATIVE ACTION TAKEN BY ZIELINSKI WAS NOT QUESTIONED BY
THE UNION.
/8/ ON MARCH 30, 1979, ZIELINSKI AGAIN ADVISED HARRISON OF THE
RESTRICTION RELATING TO PERFORMANCE OF UNION BUSINESS DURING WORKING
HOURS AND WITH RESPECT TO THE UNAUTHORIZED USE OF OFFICE EQUIPMENT
(RESPONDENT EXHIBIT 13).
/9/ A SECOND TOPIC OF CONVERSATION RAISED BY SMITH DURING THIS
MEETING DEALT WITH THE UNION'S PLACEMENT OF A BALLOT BOX IN A RESTRICTED
AREA WITHOUT PERMISSION, AND THE TERMS OF ARTICLE 14 OF THE COLLECTIVE
BARGAINING AGREEMENT WITH RESPECT TO THE RESPONDENT'S OBLIGATION TO
SUPPLY SPACE FOR BALLOT BOXES USED IN CONNECTION WITH CHAPTER ELECTIONS.
AS A RESULT OF THIS PORTION OF THE CONVERSATION THE BALLOT BOX WAS
MOVED OUT OF THE RESTRICTED AREA BY THE UNION.
GALLAGHER TESTIFIED THAT HE INSTRUCTED SMITH TO MAKE RESPONDENT'S
POSITION CLEAR ON BOTH ISSUES DISCUSSED WITH WEKWERT (TR. 423-424).
/10/ WEKWERT'S VERSION OF THE MEETING COINCIDES WITH SMITH'S ACCOUNT
IN LARGE MEASURE. WEKWERT TESTIFIED, "I MAY HAVE NODDED OR SAID OKAY OR
SOMETHING LIKE THAT." (TR. 130). THERE WAS NO INDICATION OF DISAGREEMENT
ON WEKWERT'S PART WHEN FACED WITH SMITH'S POSITION ON THE ISSUE. IN
FACT WEKWERT DID NOT THEREAFTER USE TYPEWRITERS HIMSELF (TR. 455-456).
THUS THE RECORD INDICATES ACQUIESCENCE AS DESCRIBED BY SMITH.
/11/ COUNSEL FOR THE RESPONDENT ADMITTED THAT THE CURRENT COLLECTIVE
BARGAINING AGREEMENT REFLECTED AMBIGUITY WITH RESPECT TO THE RELATIVE
AUTHORITY OF THE JOINT COUNCIL AND CHAPTER 44 CONCERNING THE RIGHT TO
NEGOTIATE WITH THE RESPONDENT (TR. 467). HOWEVER, AS NOTED THE PRACTICE
OF THE PARTIES CLEARLY INDICATES A BARGAINING HISTORY WITH CHAPTER
REPRESENTATIVES AT THE CLEVELAND POST OF DUTY.
ALTHOUGH THE RECORD REFLECTS VERY LITTLE OR NO EVIDENCE TO SUPPORT
THE RESPONDENT'S CONTENTION THAT RESPONDENT DOES NOT OWE CHAPTER 44 ANY
BARGAINING OBLIGATION UNDER THE TERMS OF THE COLLECTIVE BARGAINING
AGREEMENT, THE GROUNDS SELECTED FOR DISPOSITION OF THIS LITIGATION MAKE
IT UNNECESSARY TO DECIDE THIS PRECISE QUESTION.
/12/ THERE WAS ALSO SOME INDICATION THAT JACHIMIAK AUTHORIZED THE USE
OF COPYING EQUIPMENT.
/13/ JACHIMIAK'S TESTIMONY WAS VAGUE AND NON-SPECIFIC AS TO ANY
PERIOD OF PERMISSIVE USE ALLOWED BY OTHERS.
/14/ TUTELIANO'S TESTIMONY CONTRADICTED JACHIMIAK'S TESTIMONY TO THE
EFFECT THAT TUTELIANO ALLOWED THE PRACTICE AFTER 1972.
/15/ THE NAMED INDIVIDUALS WERE IDENTIFIED BY COZZENS. WILBUR JONES,
A FIFTH INDIVIDUAL WAS INCLUDED IN SMITH'S ACCOUNT OF THE MEETING.
/16/ THE FACT THAT THE COLLECTIVE BARGAINING AGREEMENT DOES NOT REFER
SPECIFICALLY TO THE PRACTICE OF USING EQUIPMENT REFERRED TO IN THE
COMPLAINT WOULD NOT, STANDING ALONE, SUPPORT A WAIVER OF RIGHTS TO
CONTINUE AN ESTABLISHED PAST PRACTICE REGARDING THE USE OF SUCH
EQUIPMENT. U.S. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
NEW ORLEANS DISTRICT, NEW ORLEANS, LOUISIANA, SUPRA.
/17/ EVIDENCE OF CONDONATION OF THE PRACTICE AFTER JACHIMIAK'S
RETIREMENT WAS VAGUE AND INCONCLUSIVE.
/18/ NOTICE TO THE STEWARD IN THIS CASE WAS APPROPRIATE SINCE HE WAS
THE FOCAL POINT FOR LABOR-MANAGEMENT RELATIONS AT THE TOLEDO POST OF
DUTY. SEE INTERNAL REVENUE SERVICE AND IRS RICHMOND DISTRICT OFFICE,
ASSISTANT SECRETARY CASE NO. 22-09462 (CA), 2 FLRA NO. 43 (DEC. 31,
1979), REPORT NO. .
/19/ IT IS NOTED THAT SECTION 7118(A)(4)(A) OF TITLE 5 UNITED STATES
CODE WOULD BE APPLICABLE TO BAR PROSECUTION. THIS PROVISION PROVIDES:
"EXCEPT AS PROVIDED IN SUBPARAGRAPH (B) OF THIS PARAGRAPH, 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."